|Abdallah Bin Bayyah (b. 1935) is considered by and large one of the most prominent contemporary legal scholars, and is one of the main proponents of the renewal of Islamic Law through the integration of the objectives of the Shar??a in the very structure of the Islamic legal methodology.|
Bin Bayyah tries to achieve this integration by adopting three discursive legal strategies. First, he identifies the objectives of Shariah (maq??id) with istidl?l, i.e. the rational inferences that are not based on scriptural textual considerations. Istidl?l is presented as a way to reason beyond the text or to understand the scriptural sources in the light of their intended meaning and objectives. The search for istidl?l is, in reality, a search for the ma?la?a (public interest) or maq??id (objectives). Second, Bin Bayyah sees the relation between maq??id and ?u??l fiqh as that between the universals (kuliyy?t), i.e. the objectives of Shar??a and the particulars (juz??yy?t), i.e the particular textual sources. He provides eight parameters (daw?bi?) that, in his view, guarantee the legal methodological rigorosity of ma?la?? and maq??id considerations. Third, Bin Bayyah goes further and argues that the objectives of Shariah constitute the heart of the Islamic legal methodology. To prove this point, he presents more than thirty ways in which maq??ids are blended into the texture of Islamic legal methodology (‘u??l al-fiqh).
In my speech, apart from highlight the value and the significance of Bin Bayyah's legal reform project, I intend to provide a critical analysis and highlight the limits of Bin Bayyah’s project of legal reform. First, historically speaking Bin Bayyah’s identification of the objectives of Shar??a (maq??id) considerations with istidl?l is an overstretch. Historically, the maq??id considerations have not originated from istidl?l deliberations but mainly from the legal discussions connected with ratio legis (?illa) and the theological discussion on the nature of good and evil (ta?s?n w? taqb??). Secondly, I argue that for the most part, the parameters championed by Bin Bayyah are dependent on the subjective and personal rational investigation (na?ar) of the scholars. Hence, they fail to equip the objectives of Shar??a with the methodological rigor and objectivity required by u??l al-fiqh. Lastly, the cases presented by Bin Bayyah to prove that maq???d are the heart of u??l come into play only when strictly u??l? deliberations fail to provide the sound legal outcome. Therefore, the maq??id? factor, albeit part of u??l al-fiqh, is still an auxiliary dimension.