Generality (‘Āmm) in the Legal Spectrum of Conventional Law and Sharī’ah versus Common Noun in English Grammar (A Comparative Jurisprudential and Linguistic Approach)

Abstract

Generality, indeed, is an essential character of every legal system;
otherwise, they begin to lose, at ground level, their practicality and
efficiency. Both Sharī‟ah and the conventional legal system, therefore,
employ generality as a matter of jurisprudential principle, as it ensures
„equality before law‟ and „justice for all‟ without any discrimination.
Putting great belief in generality, legal experts, predominantly, those
exercising authority in their corresponding jurisprudence, propose
generality in the legal texts – leaving no space for any compromise under
the umbrella of legal interpretation, both at textual and contextual levels.
On the other hand, the Common Noun of English grammar, showing
generality of meaning, corresponds with generality in English law and
„āmm (general terms) in Sharī‟ah. Though, the two legal systems have
included the general rules, nevertheless, the Islamic legal system uses the
generic nature of words in a better way under a fine structure and
mechanism. Apart from generality, both the systems identify certain
restrictions (khāss) under specific conditions in order to deal a myriad of
situations. The present work, primarily, aims at comparing the general
rules, adopted by both the systems and, thus, at highlighting commonalities
among them. It also intends to pinpoint the differences of their adaptation
and application of the same rule. The findings, reached herein, show that
both present similarities/commonalities and, of course, differences, albeit
insignificant and unnoticeable. Sharī‟ah (Islamic law), however, is more
superior in its approach and application of general words in its legal texts
and contexts. Moreover, this work suggests new dimensions, as guidelines,
for experts in the interpretations of their laws concerned. As the study is
qualitative in nature, therefore, discourse analysis technique (narrowly can
be called descriptive methodology), an appropriate method, herein, has
been used for the investigation of the issue under probe.