American Journal of Islam and Society Vol 38 No 3-4.indb


103

Maqaṣid and the Renewal of 
Islamic Legal Theory in ‘Abdullah 

Bin Bayyah’s Discourse

R E Z A R T  B E K A

Abstract
This article investigates the central role assigned to maqāṣid by 
‘Abdullah Bin Bayyah (b. 1935) in his project of renewal of uṣūl 
al-fiqh. He presents maqāṣid as crucial for the functioning and 

Rezart Beka holds an MA in Interdisciplinary Studies on Religion and Cultures 
from the Pontifical Gregorian University, Roma, Italy, and another MA in the 
Study of Contemporary Muslim Thought and Societies from Hamad Bin Khali-
fa University, Doha, Qatar. He is now a Doctoral Student, Doctor of Philosophy 
in Arabic and Islamic Studies at Georgetown University. He has published a 
number of books in his native language (Albanian) and several articles both in 
English and Albanian.

Acknowledgments: I would like to express my gratitude to Felicitas Opwis, 
Ovamir Anjum, Besnik Sinani, Usaama al-Azami, Youcef Soufi, Muhammad 
al-Murakabi, Ahmad Zayed, and the reviewers at AJIS for helping improve 
this article at various stages of its development. Any errors in this article are 
entirely my responsibility.

Beka, Rezart. 2021. “Maqaṣid and the Renewal of Islamic Legal Theory in ‘Abdullah Bin Bayyah’s 
Discourse” American Journal of Islam and Society 38, nos. 3-4: 103–145 • doi: 10.35632/ajis.v38i3-
4.2987
Copyright © 2021 International Institute of Islamic Thought



104    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

widening of the system of ratiocination (manẓūmat al-taʿlīl) and 
inference (istidlāl). In his theory of renewal, Bin Bayyah expands 
the role of maqāṣid in uṣūl al-fiqh beyond the system of ratio-
cination to all the chapters of uṣūl al-fiqh. In this context, he 
provides more than thirty ways in which maqāṣid are blended 
into the texture of Islamic legal theory and are necessary for 
its sound functioning. In this way, he tries to demonstrate that 
maqāṣid are uṣūl al-fiqh itself and its heart. This article explores 
the discursive strategies adopted by Bin Bayyah to establish the 
relevance of maqāṣid for the renewal of uṣūl al-fiqh and offers 
a succinct critical appraisal of Bin Bayyah’s reasoning on the 
topic. It argues that Bin Bayyah is successful in demonstrating 
the indispensability of maqāṣid for any project of renewal of uṣūl 
al-fiqh, but falls short in proving that maqāṣid are uṣūl al-fiqh 
itself and its heart.

The call for renewal (tajdīd) of Islamic Law has occupied a prominent 
place in contemporary Islamic thought. In order to respond to the new 
realities created by modernity and the perceived ossification of the 
traditional Islamic Law, Muslim scholars have proposed various and 
often incommensurable reform proposals that aim to restore the vigor 
of sharī‘a and its relevance for modern times.1 Part of this impetus for 
reform has manifested in various intellectual projects of renewal of the 
very methodology of Islamic legal theory (uṣūl al-fiqh). Contemporary 
Muslim scholars have identified the rigidity of Islamic legal theory, its 
presupposed overconcern with textual/linguistic analysis, and its dis-
regard for the “objectives of sharī‘a” (maqāṣid al-sharī‘a) as the main 
reasons behind the inability of classic Islamic legal theory to respond 
adequately to modern realities.2 Reopening the gates of ijtihād in legal 
theory and the introduction of rational and non-literal considerations 
in its structure have constituted some of the solutions offered to guar-
antee the relevance of sharī‘a in the contemporary world. The reform 
of Islamic legal theory pursuant to the theory of the objectives of the 
sharī‘a has appeared prominently in recent proposals of reform.3 The 
infusion of the methodology of Islamic legal theory with maṣlaḥa/



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     105

maqāṣid considerations has been increasingly perceived as necessary 
to make it responsive to the new dynamics of modern life and sufficiently 
flexible to accommodate the necessary legal/hermeneutical adjustment 
needed for the purpose.

‘Abdullah Bin Bayyah (b. 1935) is an important voice in ongoing 
discussions over the renewal of Islamic legal theory. Considered by the 
Muslim scholarly community to be one of the leading contemporary 
legal scholars, Bin Bayyah has dedicated a series of writings to the topic 
of the relation between the maqāṣid and legal theory along with the 
reform of Islamic legal theory through the objectives of sharī‘a.4 Bin 
Bayyah has lamented the fact that in the history of Islamic Law, legal 
theory and maqāṣid have been conceived as separate from each other. 
More specifically, maqāṣid have often been considered a supplement or 
an afterthought to Islamic legal theory.5 Bin Bayyah’s primary concern 
has thus been to construct a legal framework that allows for the inte-
gration of maqāṣid into its very structure. Bin Bayyah goes so far as to 
present maqāṣid as the heart of Islamic legal theory, while attempting to 
provide the theory of maqāṣid with the needed uṣūlī rigor necessary to 
dispel the common objection which conceives the objectives of Sharī‘a as 
subjective, inherently versatile and unregulated. In order to accomplish 
this twofold aim, in his project of renewal, Bin Bayyah adopts a series of 
discursive strategies. In this paper, we will try to unravel the nature of 
these discursive strategies, explain how they are situated in Bin Bayyah’s 
overall legal reform project, and offer a succinct critical appraisal of Bin 
Bayyah’s reasoning on the topic.

A Neo-Traditionalist Reformist Project

Contemporary Islamic thought has witnessed a series of attempts 
of renewing Islamic legal theory. Some traditionalist scholars have 
categorically rejected such calls for renewal.6 In contrast, in some 
modernist circles, Islamic legal theory has been perceived as in irre-
versible crisis, obsolete, a pre-modern conceptual legal framework 
that needs to be supplanted by modern and novel legal hermeneutics 
that reflect the needs of the modern condition.7 Bin Bayyah rejects 



106    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

the modernist-revisionist call for the sidestepping or the substantial 
reconfiguration of Islamic legal theory. Nevertheless, he acknowledges 
the need for an organic renewal that will restore its rigor in order to 
respond adequately to modern challenges. He grounds his position on 
the conviction that modernity and its new socio-political and religious 
realities constitute an epistemic shift from the pre-modern world.8 
The new realities necessitate the reconsideration of many traditional 
Islamic legal rulings and the consequent revision or adjustment of 
some of the hermeneutical tools and mechanisms of legal theory. In 
this regard, Bin Bayyah states:

The classical legal extrapolations were correct in their time, and 
some continue to be correct. The new and modern extrapolations 
that are based on a sound foundation as regards ascertaining 
the ratio legis are also correct. To a certain extent they resemble 
the relationship between classical mathematics, which provided 
plausible solutions within the epistemic and realist paradigms of 
their time, and modern mathematics, which provides solutions 
that are plausible and relevant for the age in which we live.9

According to Bin Bayyah, contemporary calls for the renewal of 
Islamic legal theory has taken three forms: 1) the simplification of its 
very subject-matter (mādda), i.e., reformulating Islamic legal theory 
in a way that will facilitate its comprehension by the modern readers; 
2) the trimming or alleviation of Islamic legal theory from perceived 
unnecessary and unrelated elements, like logics and theology—includ-
ing simplifying the terminology of Islamic legal theory by purifying it 
of unnecessary intricate technicalities; and 3) the transcending of the 
conditions of regulation (al-inḍibāṭ) in the characteristic (waṣf) through 
which the efficient cause is inferred, in order to be content with the 
wisdom (ḥikma) and producing legal norms in accordance only with 
the dictates of maṣlaḥa.10 In Bin Bayyah’s view, all these proposals lack 
legal clarity and direction. Among them, the proposal to simplify the 
procedures and terminology of Islamic legal theory is worthy of con-
sideration, but it entails only pedagogical modifications and does not 



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     107

focus on the main objective of Islamic legal theory, i.e., the deduction 
of legal rulings.11

Bin Bayyah draws attention to three other claims or projects of 
renewal of Islamic legal theory that, according to him, constitute a 
danger for the existence of sharī‘a itself. He associates these projects 
of renewal with the writings of modernist scholars like Muhammad 
Arkoun (d. 2010), ‘Abd al-Majīd al-Sharafī (b. 1942), and Nasr Abū Zayd 
(d. 2010).12 These three claims of renewal are:

1 A call for relying on wisdom and maṣlaḥa unrestricted by any regu-
lation of ratiocination (ta‘līl) or by any of the instruments used in the 
application of the legal rulings.13 According to Bin Bayyah, such an 
approach undermines the very structure and foundations of ijtihād.

2 A call to rely on maqāṣid devoid from any uṣūl considerations 
and divested from any concern for the particular textual indicants 
(dalā’il).14 Although Bin Bayyah acknowledges that there is some 
legitimacy to this proposition, nevertheless he argues that the 
scholars who have endorsed such a view have failed to understand 
that the scale of Islamic legal theory (al-mizān al-uṣūlī) is the only 
mechanism that guarantees the correct usage and application of 
the objectives of sharī‘a in bringing legal rulings into life. Without 
it, the maqāṣid will remain subjective and non-anchored on solid 
textual grounds.

3 A call for historicizing and contextualizing the shariatic texts.15 In 
Bin Bayyah’s view, the final result of this historical-critical method 
is disconnection from the shariatic texts and the transformation of 
legitimate considerations, i.e., the historicity of the texts, in general 
law or established principle for the entire process of understanding 
the revelatory texts. In short, for Bin Bayyah, these claims of renewal 
violate the eternal validity of the textual proofs and constitute a jump 
to the unknown. They represent an escape from the more arduous 
task of constructing a project of renewal grounded in the texts of 
sharī‘a and able to respond to modern needs.16

According to Bin Bayyah, the modernist projects of renewal give 
undue precedence to purely rational maṣlaḥa over the categorical scrip-
tural texts. As such, they fall outside the legitimate boundaries of the 



108    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

Islamic discursive tradition and do not share in its fundamental com-
mitments to scriptural sources. The result of these types of projects, 
accordingly, is the “creation of a new legislation, rather than the renewal 
of sharī‘a.”17 Bin Bayyah’s criticism of the modernist proposals of renewal 
is hardly new or unprecedented. It follows, in language and structure, 
the standard way in which these proposals have been presented and crit-
icized in existing revivalist and centrist (waṣaṭiyya) projects of reform, 
particularly as articulated by Yūsuf al-Qaraḍāwī.18 In his discussion, Bin 
Bayyah seems unable or unwilling to critically engage with the modern-
ist projects of reform; their methodology is dismissed without proper 
analysis. Nevertheless, highlighting their ‘errors’ allows him to situate 
his reformist project as a middle way between the approach of those 
who dismiss specific texts in the name of some higher maqāṣid (i.e., 
modernists) and those who claim to defend the tradition by dismissing 
the maqāṣid in the name of a presupposed faithful adherence to the literal 
meaning of the texts (i.e., traditionalist-conservatives). In this way, he 
can present himself as an internal critic who, despite his critical stance 
towards some aspects of the tradition, aims at reinvigorating that very 
same tradition instead of dismissing or replacing it with entirely novel 
conceptual frameworks.19

Apart from his distancing from modernist projects of reform, Bin 
Bayyah does not provide an account of where his project stands in rela-
tion to other contemporary trends of renewal of Islamic legal theory.20 
Nevertheless, his discourse of renewal manifests many commonalities 
with other revivalist and centrist (wasaṭiyya) approaches.21 Bin Bayyah’s 
project shares with the centrist discourse the attempt to construct the 
maqāṣid-based proposal of renewal as a middle path between modernist 
utilitarianism and traditionalist literalism. He displays a traditionalist 
stance by rejecting the ability of purely rational maṣlaḥa/maqāṣid to 
override categorical texts or the constants (thawābit) of sharī‘a. He 
restricts the latter only to a narrow number of principles and texts, 
leaving the rest open to ijtihād and maṣlaḥa considerations. However, he 
ascribes to maṣlaḥa/maqāṣid a greater role in overriding probable texts 
or the changeable (mutaghayyirāt) aspects of sharī‘a as well as a central 
role in those fields towards which sharī‘a is silent or neutral.22 For Bin 



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     109

Bayyah, Islamic jurisprudence operates mostly within the domain of the 
probable (ẓann) and the changeable aspects of sharī‘a; therefore maṣlaḥa/
maqāṣid occupy a prominent role in the juridical discourse writ large.

Consequently, despite Bin Bayyah’s overall traditionalist stance 
towards the renewal of Islamic legal theory, his substantial law reasoning 
(fiqh) manifests a more modernist-revivalist inclination. In Bin Bayyah’s 
discourse the pragmatic and utilitarian aspects of Islamic law—maṣlaḥa, 
ḍārūra (necessity), rukhṣā (legal license), taysīr (leniency), etc.—occupy 
a prominent role in the renewal of Islamic law. In this regard, his juris-
prudence too is not very dissimilar to that of scholars like al-Qaraḍāwī.23 
In the same vein as revivalist discourse, historicism and contextualism 
are two key hermeneutical tools through which Bin Bayyah tries to 
bring perceived problematic aspects of the pre-modern legal tradition 
in line with modern sensibilities.24 In a sense, this apparent difference in 
Bin Bayyah’s approach towards legal theory and substantive law might 
be conceived as an instance that corroborates the scholarly position 
that ascribes to legal theory only a justificatory role of validating ex 
post facto existing legal positions.25 Nevertheless, Bin Bayyah’s himself 
does not subscribe to this way of understanding the role of legal theory. 
He endorses the dominant traditional narrative that conceives of legal 
theory as the method for legal derivation and a criterion for judging the 
coherence and validity of legal reasoning. For Bin Bayyah, the central 
aim of legal theory remains the facilitation of deduction of legal norms. 
Therefore, a maqāṣid-centered renewal of legal theory is presented as 
crucial for the production of a flexible jurisprudence that will adequately 
respond to modern exigencies.26

Despite his commonalities with the centrist-revivalist discourse, Bin 
Bayyah’s theorization of renewal of Islamic legal theory is more in line 
with the neo-traditionalist approach. As al-Azami explains, generally 
neo-traditionalism refers to “a denomination of Sunnism that emphasizes 
respect for and adherence to one of the four schools of law, the Ash’arī 
or Māturīdī schools of theology, and valorizes Sufism.”27 In terms of its 
approach to Islamic law and its renewal, neo-traditionalism presents 
itself as “opened to more than one school of law for reference on valid 
rulings and not restricted to one school.”28 In this context, it is the entire 



110    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

corpus of the legal tradition and not a particular eponym of a madhhab 
or school of law that is presented as the repository of legal authority. 
The main approach of neo-traditionalism towards the renewal of Islamic 
Law consists in the creative and renewal-oriented selection (takhayyur) 
and amalgamation (talfīq), from the legal tradition, of those legal rulings 
of the madhhabs that are perceived as most suitable for the modern age. 
Often this process includes not only the choice between two well-es-
tablished legal rulings, but also the selection of an outweighed ruling 
(marjūh) over a preponderant one (rājih). For many neo-traditionalists, 
including Bin Bayyah, modern circumstances dictate the need for the 
adoption of outweighed rulings. This process of preponderance (tarjīḥ) 
should be conducted in light of maṣlaḥa and maqāṣid considerations. 
The role of maqāṣid in this process is that of providing the necessary 
regulations (ḍawābiṭ) for a sound exercise of preponderance.29

In neo-traditionalist terms, Bin Bayyah accepts the inherited concep-
tual edifice of post-formative Islamic legal theory and affirms its eternal 
relevance for all times and conditions.30 He rejects the claim that Islamic 
legal theory is in a state of irreversible crisis and dismisses calls for a 
thorough reconsideration of its structure.31 Bin Bayyah portrays the 
process of creative drawing on the reservoir of the existing resources of 
the classical legal tradition as sufficient for addressing modern realities. 
Therefore, he is generally reluctant to explicitly bypass the madhhabs’ 
well-established legal rulings and the formal procedures of classical legal 
theory in favor of “creative ijtihad” (ijtihad inshā‘ī). Instead, in order to 
bring the needed legal changes and maintain conspicuous links with 
the legal tradition, he makes recourse mostly to selective ijtihād (ijti-
had intiqā‘ī). This aspect also appears prominently in centrist-revivalist 
discourse, like that of al-Qaraḍāwī.32 However, unlike the latter, in Bin 
Bayyah’s discourse the madhhabs’ legal tradition seems to bear a heavier 
weight. Although both scholars use the aura of tradition as a discursive 
strategy to legitimize their legal conclusion, nevertheless identification 
with and general adherence to the madhhab tradition is more manifest 
in Bin Bayyah. In contradistinction, al-Qaraḍāwī manifests a more pro-
nounced salafī tendency, that he inherits from the modernist salafism 
of Riḍā, which encourages the bypassing of the inherited legal tradition 



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     111

in favor of a new reading of the scriptural sources, informed by the exi-
gencies of the modern age.33 In many respects, the differences between 
the discourses of these two scholars reside more in degree and emphasis 
rather than their nature and methodology.

In the introduction of his treatise on maqāṣid, Ibn ‘Āshūr made 
the case for the establishment of the science of the objective of sharī‘a 
(‘ilm al-maqāṣid al-sharī‘a) as independent, in status, from Islamic legal 
theory.34 His approach towards maqāṣid has been endorsed by may 
centrist-revivalist scholars (e.g. al-Raysūnī), and constitutes the actual 
way in which maqāṣid are taught in many influential Islamic educa-
tional institutions.35 Bin Bayyah rejects the idea that maqāṣid should be 
considered an independent source of law or conceived as a standalone 
methodology for rule derivation. Instead, in his discourse maqāṣid are 
subsumed under legal theory and the relation between them is conceived 
as that between the soul and the body.36 As we shall see, relying on the 
Aristotelian theory of causation, Bin Bayyah rejects the reconsideration 
of the subject-matter (mādda) of Islamic legal theory and confines his 
reform proposal to the form (ṣūra) and the role that the mujtahid plays in 
shaping the subject-matter through his work on the form of legal theory. 
As a result, Bin Bayyah’s project of renewal of legal theory is tradition-
alist in nature and modest in its claims. It consists mainly in the attempt 
to integrate maqāṣid considerations in the formal procedures of Islamic 
legal theory by demonstrating their centrality and indispensability. In 
this regard, his main strategy consists in the expansion of the role and 
scope of maṣlaḥa/maqāṣid in Islamic legal theory through a process of 
new divisions, rearrangement, reorganization, expansion, and restriction 
of its existing structures. This process of maqāṣid-based restructuring 
and reorganization of existing legal frameworks allows him to carve out 
a more central role for maṣlaḥa and maqāṣid in legal theory.37

Maṣlaḥa and Istidlāl: The History of  
Islamic Legal Theory as the History of Maqāṣid

Among Muslim scholarly circles there is a common narrative accord-
ing to which maṣlaḥa and the maqāṣid approach are portrayed as a 



112    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

phenomenon that emerged late in Islamic legal history and was mar-
ginal to the very nature of Islamic legal theory.38 As Mohammad Hashim 
Kamali states, “maqāṣid did not receive much attention in the early stages 
of the development of Islamic legal thought and, as such, they represent 
rather a later addition to the juristic legacy of the madhāhib.”39 For many 
critics of the contemporary maqāṣid approach, the absence of a theoriza-
tion of maṣlaḥa and maqāṣid in the early Muslim generations is evidence 
of the absence of its legal pedigree, which would be necessary for the 
establishment of their legitimacy in legal theory. In this context, the fact 
that the earliest evidence for the technical use of the term istiṣlāḥ (public 
welfare) appeared at the end of the fourth-century hijrī, in the writings 
of Muḥammad b. Aḥmad al-Khwārazmī (d. after 387/997), constitutes a 
genealogical problem for advocates of maṣlaḥa and maqāṣīd.40

In order to resolve this apparent handicap in the juridical pedigree of 
maṣlaḥa and maqāṣid, Bin Bayyah offers a narrative of the early Islamic 
legal history in which maqāṣid are conceptualized as integral parts of 
the origins of legal theory itself. The grounding of the genealogy of the 
maqāṣid approach in the very foundational period of Islamic legal history 
is crucial for Bin Bayyah’s project of portraying maqāṣid as an essential 
part of legal theory. In order to achieve this goal, he presents the central 
motivation behind the development of the science of Islamic legal theory 
as the attempt to strike a balance between the textual sources (al-naṣṣ) 
and inference (istidlāl).41 Linguistically istidlāl refers to the search for 
an indicant (dalīl). In the terminological sense, the term has been used 
in a general and particular meaning.42 In its general meaning, istidlāl 
refers to seeking evidence from the Qur’an, Sunna, consensus, analogy or 
other legal sources. In its particular meaning, it is used “to designate any 
indicator that does not fall under the familiar headings of Qur’ān, Sunna, 
Ijmā‘, and analogy.”43 Bin Bayyah uses the term in this latter meaning. 
For him, istidlāl becomes a catch-all term that includes the legal mecha-
nisms and processes that are not directly connected or based on textual 
considerations, such as public welfare (istiṣlāḥ), blocking of the means 
(sadd al-dharā’i‘) and juristic preference (istiḥsān). Bin Bayyah does not 
clarify the precise relation between maqāṣid and istidlāl. However, his 
discourse on the topic shows that, for him, on the one hand maqāṣid are 



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     113

just an element or part of istidlāl, while on the other hand maqāṣid con-
stitutes the foundation or the ground through which istidlāl mechanisms 
are regulated or legitimized in legal theory.

The strong relation of maqāṣid with istidlāl allows Bin Bayyah to 
trace back the maqāṣid discourse to the time of the Companions. In this 
context, the Prophet’s greatest companions, especially the four Rightly 
Guided Caliphs, systematically considered the maqāṣid in their legal 
reasoning. Abū Bakr’s (r. 632-634) decision to consider as apostate and 
fight the Arab tribes that refused to pay zakat; ‘Umar b. al- Khaṭṭāb’s 
(r. 634-644) refusal to apply the ḥadd punishment for theft during the 
time of famine; or ‘Alī b. Abī Ṭālib’s (r. 656–661) refusal to fight the 
khawārij while in a state of war, become read as a concrete manifes-
tation of maqāṣid in the ijtihād of the Companions. They are proofs 
of the fact that the Companions used maqāṣid reasoning to act in the 
absence of textual sources or in contradiction with their outward mean-
ing.44 In Bin Bayyah’s view, the Followers (ṭābi‘ūn) received the maqāṣid 
approach as a natural continuation of the legal heritage from the era 
of the Companions.45 He singles out the school of Medina, represented 
by the seven jurists of Medina, as the school of maqāṣid. Quoting Ibn 
Taymiyya, Bin Bayyah argues that the school of Ahl al-Madīna was 
renowned for taking into consideration maqāṣid and its foundations.46 
The tradition of the school of Ahl al-Madīna culminated with Imam 
al-Mālik (d. 795) and his legal approach based, among others, on ‘public 
welfare’ and ‘blocking of the means’. Bin Bayyah quotes the saying of the 
renowned Mālikī jurist, Abū Bakr b. al-‘Arabī (d. 1148) regarding Imām 
al-Mālik: “As for maqāṣid and maṣāliḥ, this is also something in which 
Imām Mālik was unparalleled, unlike other scholars.”47

Bin Bayyah continues his construction of the genealogy of the devel-
opment of maṣlaḥa and maqāṣid by tracing its developments from the 
second century hijrī until the formation of the Islamic schools of law in 
the fourth-fifth century.48 Quoting al-Shāṭibī, he argues that three textual 
approaches emerged in Islamic legal history in the second-century hijrī: 
1) a literalist (ẓāhirī) approach that did not take into consideration the 
intention or the objectives of the texts but restricted itself to the apparent 
meaning of the texts; 2) an esoteric (bāṭinī) approach that refused the 



114    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

apparent meaning of the textual sources and restricted the meanings of 
the texts only to their internal/esoteric dimensions; and 3) a balanced 
approach, endorsed by most Muslim legal scholars, that considered both 
the textual and the extra-textual dimensions of the revelatory sources.49

In Bin Bayyah’s framework, this third attitude consists in the attempt 
to strike a balance between texts and inference. Nevertheless, histori-
cally speaking, the precise middle path between the two was not easy 
to determine and it was subject of staunch disagreements between the 
madhhabs. In his view, the Shāfi‘ī school of law took a position nearer 
to the literalist approach, in which textual and linguistic considerations 
played central importance in the law-finding process. In his Risāla, 
al-Shāfi‘ī took a strong stance against the legal notions of juristic prefer-
ence (istiḥsān), blocking of the means (sadd al-dharā’i‘), and (to a certain 
degree) public welfare (istiṣlaḥ).50 By contrast, the Ḥanafī, Ḥanbalī and 
Mālikī schools of law inclined more towards inference, emphasizing 
these legal notions.51 Bin Bayyah accepts the conventional narrative 
that considers Imam al-Shāfi‘ī as the founder of legal theory and his 
Risāla as the first conscious articulation of Islamic legal theory.52 As a 
response to Imām al-Shāfi‘ī’s rejectionist attitude towards these istidlāl 
mechanisms, the third-century hijrī witnessed an intense debate on the 
legitimacy of maṣlaha, maqāṣid and sadd al-dharā’i‘. The result of this 
controversy was the emergence of various legal strategies to justify these 
legal mechanisms and connect them with more uṣūlī considerations.53

The controversies around istidlāl mechanisms required the exercise 
of ijtihād. For Bin Bayyah, maqāṣid emerged precisely as the necessary 
legal framework that provided this required means and criteria for reg-
ulating (ḍabṭ) istidlāl.54 This role makes maqāṣid central to istidlāl and 
essential for any project of renewal of Islamic legal theory. The debates 
that al-Shāfi‘ī’s position on certain istidlāl mechanisms (istiḥsān, istiṣlāḥ, 
etc.) originated, resulted in the acceptance and legitimation of istidlāl 
mechanisms as an integral part of Islamic legal theory. Hence, according 
to Bin Bayyah, al-Shāfi‘ī’s discourse in his Risāla should be regarded as 
the beginning of the journey of the maqāṣīd school of thought.55 In this 
way, the maqāṣid approach is integrated in the history of Islamic legal 
theory itself. Such a reconstruction of the history of maqāṣid allows Bin 



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     115

Bayyah to invoke foundational figures of Islamic legal theory, like Imām 
al-Shāfi‘ī, in favor of his conceptualization of maqāṣid and its importance 
for the renewal of Islamic legal theory.

Through his reconstruction of the genealogy of maqāṣid, Bin Bayyah 
seeks to provide historical corroborations for his particular conceptual-
ization of maqāṣid and their importance for the renewal of Islamic legal 
theory. This endeavor implies a reading of early Islamic legal history in 
hindsight of later developments and consequently manifests a certain 
degree of anachronism. For instance, it is true that, as Bin Bayyah sug-
gests, ijtihād of the early Muslim generations often reflected an intuitive 
and underlying maqāṣid reasoning that later on became integrated or 
justified through non-analogical istidlāl frameworks, like istiḥsān, istiṣlāḥ 
and sadd al-dharā’i‘. Nevertheless, the emergence of istidlāl itself, as a 
general concept for methods of enquiry separated from qiyās that included 
formal and non-analogical arguments, was a late development (4th-5th cen-
tury hijrī).56 Moreover, as Hallaq states, all these arguments “existed in 
the realm of the controversial within the systems of the four schools of 
law.”57 Hence, although the relationship between text and inference might 
have been important for the jurist of the formative period of the Islamic 
law, presenting it as a fundamental feature of Islamic legal theory from its 
beginning and the main impetus behind the development of Islamic legal 
theory seems to be historically an overstretch and a backward projection 
of later legal developments into the early period.

Moreover, while istidlāl contains and necessitates, to a certain 
degree, maṣlaḥa/maqāṣid considerations, historically speaking it is 
textual considerations, rather than maqāṣid, that seem to have played 
a greater role in integrating istidlāl mechanisms in the structure of 
Islamic legal theory. For instance, one important strategy to legitimize 
and integrate istiḥsān in the structure of legal theory has been its ratio-
nalization as a form of particularization (takhṣīṣ) of the efficient cause 
(‘illa). Another important strategy has been the presentation of istiḥsān 
as a concealed form of analogy (qiyās al-khafī) that on certain occasions, 
based on juristic considerations, should be preferred over manifest anal-
ogy (qiyās al-jālī).58 In this way, istiḥsān could be presented not as “the 
arbitrary opinion of the jurist but the carefully conducted analogy on 



116    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

the basis of textual evidence and sound methodological principles.”59 In 
both cases, although maqāṣid considerations were perceived as import-
ant for the existence of istidlāl mechanisms, it was the grounding of 
istidlāl on agreed upon formal textual mechanism like qiyās or ta‘līl 
rather than maqāṣid which proved essential in providing the criteria 
for regulating (ḍabṭ) istiḥsān.60

In short, Bin Bayyah reconstructs the early history of Islamic legal 
theory in ways that fit his particular understanding of the role of maqāṣid 
in it. His narrative of the genealogy of maqāṣid is indicative of a common 
feature of the contemporary Islamic discourse, and Islamic legal tradi-
tion in general, where modern and new constructs like fiqh al-maqāṣid 
(purposive jurisprudence), fiqh al-wāqi‘ (jurisprudence of reality), fiqh 
al-muwāzanāt (jurisprudence of balance), etc., are often justified by 
backward-projecting them into the prophetic or foundational period. 
By conceptualizing istidlāl and its relation with the text (naṣṣ) as the main 
impetus behind the development of Islamic legal theory, Bin Bayyah 
is able to carve out a central role for maqāṣid. This discursive strategy 
allows him to justify the place of maqāṣid in the very structure of Islamic 
legal theory and trace the beginning of the journey of the maqāṣid school 
of thought back to the founder of legal theory himself (al-Shāfi‘ī). In this 
way, Bin Bayyah is able to present maqāṣid and classical usūlī textual 
procedures as sharing the same roots and legitimacy.

The Role of Maqāṣid in Bin Bayyah’s Project of Renewal

In laying out the structure of his project of renewal, Bin Bayyah draws 
from the Aristotelian theory of causation, namely the distinctions between 
material, formal, efficient and final causes (mādda, ṣūra, fā‘il, ghāya).61 In 
fact, in his book on the renewal of legal theory, Ithārāt al-tajdidiyya, Bin 
Bayyah gives to legal theory a logical structure organizing it in accor-
dance with the four forms of causation (al-‘illal al-arba‘). In Bin Bayyah’s 
view, these are the only means through which scholars can realize change 
and provide explanations for their reasoning. The subject-matter (mādda) 
of Islamic legal theory, i.e., “its essence from which the structure of uṣūl 
spring forth and without which its existence is not conceivable,”62 is not 



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     117

susceptible to revision or reconsideration. He conceives the subject-mat-
ter (al-mādda) of Islamic legal theory as constituted by seven fundaments: 
1) Qur’an, 2) Sunnah, 3) Arabic language, 4) substantive law (fiqh), 5) the 
legal verdicts (fatwa) of the Companions, 6) theology (‘ilm al-kalām) and 
7) Aristotelian logic.63 He restricts the renewal of legal theory principally 
to the realm of the form (i.e., the formal causation), especially in its ele-
ment of tarkīb (structuring) and its role in constructing the relationship 
between the universals and the particulars.

It is in the realm of the formal (ṣūra), i.e., “which through its shape 
makes the matter (mādda) responsive towards a specific function,”64 that 
most of the renewal of legal theory takes place. In Bin Bayyah’s view, 
any work on the subject-matter is actualized through the effect that the 
form has on it, and not by negating parts of the matter’s constitutive ele-
ments. Formal causation is composed of five elements: tarkīb (structuring), 
tabwīb (classification), tartīb (arrangement), talqīb (designation), and taqrīb 
(approximation). It is through reprising these five elements that significant 
changes in Islamic legal theory can be actualized. The role of maqāṣid 
deliberations appears predominantly in the element of tarkīb (structuring) 
and consists in the assembling or putting together the parts of a compound 
reality (ajzā’ al-murakkaba). By this, Bin Bayyah means the construction 
(tarkīb) of the universals from its particulars and vice versa as well as the 
structuring of two particulars by putting them in relation with each other.

In a broader perspective, Bin Bayyah conceives the role of formal 
causation (al-ṣūra) in the renewal of legal theory as manifested in three 
principal forms of ijtihād that constitute the heart of Islamic legal theory 
itself. These are:

1 ijtihād concerning the linguistic indicators (ijtihad fī dalālāt al-alfāẓ) 
that refers to all the issues related to the Arabic language;

2 ijtihād concerning issues related to harm and benefit that refers to 
maqāṣid, in its entirety and details; and

3 ijtihād in the verification of the hinge (taḥqīq al-manāṭ), which is a 
type of perpetual ijtihād concerned with the application of the sha-
riatic legal rulings to the particular/individual cases encountered in 
specific contexts.65



118    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

These three types of ijtihād respond respectively to the what, the 
why, and the how of Islamic law. To each of these forms of ijtihād, Bin 
Bayyah has dedicated a particular study.66 Although the role of the form 
(ṣūra) is crucial to all the types of ijtihād mentioned above, nevertheless 
the role of maqāṣid in the renewal of Islamic legal theory is particularly 
essential for the second kind of ijtihād. Hence, our analysis will be mainly 
focused on this aspect, which constitutes the second step of inquiry and 
is more profound and important than ijtihad based on linguistic indica-
tors.67 The third type of ijtihād, which revolves around the notion of the 
verification of the hinge (taḥqīq al-manāṭ), constitutes a crucial element 
of Bin Bayyah’s theory of applicative ijtihād.

Bin Bayyah conceives of the contribution of maqāṣid to Islamic Law 
predominantly in three aspects, of which our analysis will focus on the 
two former ones:

1 The actualization (taf‘īl) of Islamic legal theory in light of the reali-
zation of maqāṣid in its structure;68

2 The selection of the appropriate legal opinions, even if this entails 
the adoption of an outweighed opinion (marjūḥ) over a preponderant 
one (rājiḥ);69 and

3 The actualization of the theory of maqāṣid to develop a comprehen-
sive Islamic philosophy that answers the questions raised by the 
modern age by relying on the mutual relationship between revela-
tion and reason.70

As we will see, Bin Bayyah situates the role of maqāṣid in the 
renewal of Islamic legal theory as crucial for the system of ratiocination 
(manẓūmat al-ta‘līl) and the broadening of its role. Within the system of 
ratiocination, he ascribes to the objectives of sharī‘a the principal role 
of enabling the construction of universals (kulliyyāt) and preserving the 
balance between the universals and the particulars.71 In this context, any 
process of ratiocination (ta‘līl) should be proceeded by two preludes 
(muqaddima) that pertain to the domain of maqāṣid. These preludes 
consist in (1) taking maqāṣid into consideration, be it universal or partic-
ular, original or dependent, the objectives of the Lawgiver or the legally 
responsible subjects (mukallifūn); and (2) taking into consideration the 



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     119

logicality of uṣūl (mantiqiyyat al-uṣūl).72 In the following, we will elab-
orate further on these two preludes that are central to Bin Bayyah’s 
presentation of the role of maqāṣid in the renewal of Islamic legal theory.

The First Muqaddima: Considering Maqāṣid  
in the Process of Ratiocination (Ta‘līl)

According to Bin Bayyah, maqāṣid constitute the natural environment 
for the efficient cause (‘illa), be it in the case of a universal or a particular 
‘illa. Most of the efficient causes are maqāṣid, while a few of them do 
not pertain to the maqāṣid domain, like those deductions of the efficient 
cause through the procedure of co-presence and co-absence (ṭard wa 
‘aks) or sorting and eliminating (sabr wa taqsīm). 73 As such maqāṣid 
are crucial for researchers to understand the foundations of the efficient 
cause. For Bin Bayyah, the actualization of Islamic legal theory in the 
light of maqāṣid serves as a way to expand the capacity of deduction, 
and as a prelude (muqaddima) to ma‘qūl al-naṣṣ, the same way linguis-
tics (mabāḥith al-lughawiyya) serves as a prelude for the signification of 
expressions (dalālat al-alfāẓ). The most important feature of the renewal 
of Islamic legal theory through maqāṣid consists in the latter’s ability “to 
construct universals, while maintaining a balance between the universal 
and the particular as well as elucidating the order and the sequence [of the 
objectives], i.e., the ranks and levels of the general objectives on which the 
particular indicants are based according to their [i.e., maqāṣid] different 
degrees and whether they entail obligation or permissibility.”74 This role 
of maqāṣid in the renewal of Islamic legal theory consists principally in 
a) the actualization (taf‘īl) of Islamic legal theory in the light of the reali-
zation of maqāṣid in its structure and b) taking into account the principle 
of mutual attraction between the universal and the particulars.75

1 The actualization of Islamic legal theory in the light of maqāṣid

For Bin Bayyah, actualizing Islamic legal theory by taking into con-
sideration the structure of the maqāṣid is necessary to expand the role 
and scope of four uṣūlī circles or fields (dawā’ir) that constitute the core 
of inference (istidlāl) and consequently of maqāṣid reasoning itself. 



120    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

These for uṣūlī circles are: 1) juristic preference (istiḥsān), 2) public 
welfare (istiṣlaḥ), 3) the deduction of legal analogies (istinbāṭ al-aqyisa) 
and 4) taking into consideration the anticipated outcomes (ma’ālāt) 
and means (al-dharā’i‘) of legal rulings.76 According to Bin Bayyah, 
in Islamic legal theory terms, employing or taking into consideration 
maqāṣid in order to bring renewal into these four legal circles means 
that sometimes maqāṣid might take the meaning of a particular, i.e., that 
of attaching the new case (far’) to a particular original case (aṣl khāṣṣ) in 
a particular locus (maḥall makhṣūṣ) and this constitute the procedure of 
qiyās. Some other times, the integration of the maqāṣid into the opera-
tion of Islamic legal theory might signify bringing into existence a legal 
norm based on a universal, in the cases where no particular original 
case exists for the issue under analysis. This procedure corresponds to 
istiṣlāḥ. Other times maqāṣid considerations might require the exemp-
tion of a particular from its established universal based on a specific 
feature of the particular that requires such an exemption. This aspect 
represents the uṣūlī structure of istiḥsān. Lastly, maqāṣid deliberations 
might require changing the outward meaning of a legal ruling in light 
of the anticipation of its effect. This constitutes the essence of sadd 
al-dharā’i‘ (blocking of the means).77

Here, Bin Bayyah insightfully emphasizes the ways in which 
maqāṣid considerations are intrinsically connected with the above-
mentioned uṣūlī circles and constitute their basis. The importance 
of maqāṣid for these uṣūlī legal tools did not escape the attention 
of classic legal scholars. However, Bin Bayyah provides an original 
framework and a contemporary language of how to conceptualize 
these uṣūlī circles in maqāṣid terms. Yet he does not provide further 
explanations of how precisely is the actualization (taf‘īl) of maqāṣid 
supposed to expand the role and scope of these uṣūlī circles beyond 
that envisaged in the traditional uṣūlī discourse. At this point his 
discourse remains theoretical and in need of concrete substantiations. 
Nevertheless, for Bin Bayyah, these four uṣūlī circles constitute the 
area of maqāṣid within Islamic legal theory, of which the most import-
ant is istiḥsān. The latter permits “the particularization (takhṣīṣ) of 
the general (‘āmm) legal texts and the qualifying of the unqualified 



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     121

(taqyīd al-muṭlaq).”78 In the Maliki madhhab, it refers to “opting for 
a particular maṣlaḥa in lieu of a general indicant (dalīl al-kullī).”79 It 
refers to giving precedence to unattested istidlāl over an analogy in 
cases where the strict application of an analogy brings to the non-re-
alization of a maṣlaḥa and the acquisition of harm (mafsad). As Abū 
Bakr Ibn ‘Arabī explains, istiḥsān consists in “giving preference to 
the relinquishment of the requirements of textual indicant (dalīl) via 
the path of exception (istithnā’) and legal license (tarkhīṣ). This, as a 
consequence of the existence of some opposition (mu‘āraḍa) by which 
the dalīl is opposed in some of its requirements.”80

In this context, evidence can be opposed by giving preference 
to customs, maṣlaḥa, consensus, legal license, or lifting hardship. 
Bin Bayyah argues that need (hāja) also can specify a general text, 
especially when the generality of the text is weak with regard to the 
specific issue under analysis. Here, the weakness refers to the situ-
ation when a particular issue that is particularized through istiḥsān 
pertains to a rare case that cannot be included in the general rul-
ing.81 A concrete example of this is Imām Malik’s permission for 
menstruating women to read from the muṣḥaf of the Qur’ān despite 
the existence of a general text that prohibits its reading by those 
in a state of major impurity (janāba). Imam Malik’s legal verdicts 
consisted of the particularization of the general text. He based his 
legal position on women’s need (hāja) to preserve the memorization 
of the Qur’ān. This is also facilitated by the fact that the generality 
of the text that prohibits such an act is weak with regards to the 
issue at hand because the general text speaks of major impurity 
(janāba) rather than menstruation.82 Thus, the exercise of istiḥsān 
relies on the understanding of maqāṣid and the thorough contextual 
circumstances related with particular cases. For Bin Bayyah, in this 
context, one of the essential functions of maqāṣid is the construc-
tion of universals (kulliyāt) or concepts (mafāhīm) necessary for the 
proper application of the four uṣūlī circles. In other words, maqāṣid 
can serve as the best guide in the formulation of universals and 
particulars necessary for the proper actualization of the four uṣūlī 
circles to respond adequately to contemporary realities.83



122    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

2 The principle of mutual attraction between the universal and particulars
Bin Bayyah argues that the maqāṣid in all their diversity constitute the 
appropriate environment for the construction of concepts (mafāhim), 
universal or particular, that have significant repercussion for juris-
prudence and the Islamic legal theory framework of dealing with 
scriptural texts. Al-Shāṭibī stressed the importance of a proper balance 
in which the universals (kulliyyāt), i.e., the objectives of sharī‘a, and 
the particulars (juz’iyyāt), i.e., the particular textual sources, are put 
in a mutual and symbiotic relationship with each other. For al-Shāṭibī, 
as reason requires, the particulars are derived from the universals that 
should be considered during the analysis of specific textual indicators 
from the revelatory sources. However, the universals themselves are 
made known by inducing them from the particulars and necessitate 
them for their legitimacy and existence. Therefore, “it is impossible 
for the particular to dispense with the universals. Consequently, who-
ever holds, for example, to the particular aspect of a text and rejects 
its universal [aspect] is mistaken, and whoever holds to a particular 
rejecting the universal is wrong. Similar is the case with whoever 
holds to a universal rejecting the particular.”84 For al-Shāṭibī, when a 
general rule (qā‘ida kulliyya) is established by induction, and a text, 
in its particular aspect, contradicts it, harmonization between the two 
is necessary. According to him, the sharī‘a did not state this particular 
except by preserving at the same time those general rules. Therefore, 
it is not possible, in this case, to violate the general rule by canceling 
what is considered by sharī‘a. It is not possible to consider the uni-
versal and cancel the particular.85

However, according to Bin Bayyah, al-Shāṭibī seems to contradict 
himself elsewhere, stating that in the case of a contradiction between 
a general rule and a particular text it is necessary to preserve order 
and give precedence to the first. This because no system in the world 
is disturbed by the unsettling of the particular, unlike if precedence is 
given to the particular.86 Whereas, for Bin Bayyah, when a particular 
and a universal clash with each other, it is obligatory for the mujta-
hid to reconcile them, and in case this is not possible, then neither 
the universal nor the particular should be preferred over the other 



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     123

in an unqualified way. The reason for this resides in the possibility 
that the mujtahid might realize in the particular a specific meaning 
that makes it stand alone from the universal and take another legal 
ruling different from that dictated by the universal under which this 
particular was originally subsumed. For Bin Bayyah, this is the heart 
of istiḥsān (juristic preference), i.e., excluding a particular from the 
universal. Blocking the means (sadd al-dharā’i‘) constitutes another 
case where, in the light of the anticipated effects, the particular takes 
the place of a universal, and the legal norm is given following the 
dictates of the particular. Other times, as in the case of unattested 
maṣlaḥa, the particular is divested of all meanings and is absorbed 
and controlled by the universal.87

For Bin Bayyah, all these four uṣūlī legal mechanisms are the 
domain of maqāṣīd, and by nature, they exist in order to take into 
consideration and respond to new occurrences or novel social 
contingent realities. The present condition might require the aban-
donment of a preponderant (rājiḥ) legal opinion in favor of an 
outweighed one (marjūḥ) as a consequence of the occurrence of 
matters of general necessity (‘umūm al-balwa), hardship, the non-re-
alization of a maṣlaḥa, and the possibility of acquisition of harm.88 
In traditional Mālikī jurisprudence, the appropriation of outweighed 
opinions (marjūḥ) has been legitimized under the notion of juryān 
al-‘amal.89 In the Islamic West, Maliki scholars reviewed the pre-
ponderant opinions of the madhhab in the light of juryān al-‘amal. 
Each region followed a specific ‘amal different from one another.90 In 
the Ḥanafī jurisprudence, the same function is played by the notion 
of deterioration of times (fasād al-zamān). Based on this concept, 
later Ḥanafis allowed giving salaries to Qur’an teachers and prohib-
ited a woman from traveling even if accompanied by her husband.91 
For Bin Bayyah, the realization of maqāṣid in modern times might 
require the adoption of a forsaken opinion (mahjūra) as long it is 
correctly attributed to early authorities, it is narrated from a trust-
worthy narrator, and need calls for it.92

For instance, against the classical legal ruling, contemporary 
Muslim scholars have permitted the throwing of pebbles in Muzdalifa 



124    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

before the sun’s zenith. The appropriation of such outweighed opinion 
(marjūḥ) is based on the fatwa of some early legal authorities. It relies 
on the maṣlaḥa of avoiding overcrowding and fatalities of human 
life that occur nowadays during the fulfillment of this particular pil-
grimage ritual. In Bin Bayyah’s view, it is precisely the instrument of 
maqāṣid that guarantees the correct understanding of the new realities 
and the sound legal framework that will legitimize the adoption of 
an outweighed opinion instead of a well-established preponderant 
one.93 Being an incubator of the generation of universals and concepts 
through which the new challenges or crises can be adequately tackled, 
in his view, the maqāṣid fulfill the crucial role of providing Islamic 
legal theory with the necessary legal framework and flexibility to be 
relevant and respond to new social contingent realities as well as to 
serve as a bridge between the everchanging reality and the scriptural 
text.94 For Bin Bayyah, the use of maqāṣid in favor of the appropriation 
of outweighed opinions should be based on clear uṣūlī regulations 
(ḍawābiṭ). This will provide the legal procedure with the necessary 
uṣūlī rigor. In this context, Bin Bayyah offers eight such rules:

1 Ascertaining the correct verification of the original objective (al-ma-
qṣad al-aṣlī) for which the legal norm has been legislated. The process 
of the verification of the objective is necessary for the realization of 
ratiocination (ta‘līl).

2 Ensuring that the objective (maqṣad) is a characteristic which is 
evident and inherently determinate (waṣf ẓāhir munḍabiṭ) for the 
ta‘līl to be possible.

3 Determining the category of the objective, i.e., does the objective in 
question fall under the category of necessity or that of need, is it an 
original or a dependent objective?

4 Examining the particular texts (al-nuṣūṣ al-juz’iyya) that are the 
foundations of the legal ruling (ḥukm) to confirm the presence, or 
not, of the ruling in it so that the scholar can adequately deal with 
it in the cases where an inevitable necessity or an urgent need goes 
against the explicit legal norm contained in the particular texts.

5 Understanding if the inferred objective (al-maqṣad al-mu‘allal) is 
textually expressed (manṣūṣ) or is deduced (mustanbiṭ). In the first 



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     125

case, the absence of the objective necessitates the absence of the 
ruling, whereas in the second case, it does not, but it might serve as 
a particularization.

6 The inferred objective (maqṣad mu‘allal) should not be rejected by a 
defective impediment like working with the opposite of the objective.

7 Guaranteeing that a specific maqāṣid is not opposed by another one 
that has priority over it.

8 Confirming that the identified maqāṣid is not the locus (maḥall) of a 
ruling that is canceled by textual evidence, consensus, or analogy.95

For Bin Bayyah these rules guarantee the correct usage of maqāṣid 
in the law-finding process. He presents them as sufficient to provide the 
utilization of the objectives of sharī‘a with the necessary legal method-
ological rigor and undo the negative image that the maṣlaḥa and the 
maqāṣid approach enjoys in some Islamic scholarly circles as being 
inherently versatile, unregulated, and subjective. Although Bin Bayyah 
does not delve into the mechanics or the detailed analysis of the above-
mentioned rules, nevertheless he presents them as crucial for the process 
of preferring an outweighed opinion over the preponderant one.96

The Second Muqaddima: Syllogism and the  
Broadening of the System of Ratiocination

The second muqaddima consists in taking into consideration the logi-
cality of Islamic legal theory (manṭiqiyyat al-uṣūl), which explains the 
conceptions (taṣawrāt) acquired through explanation (qawl al-shāriḥ) in 
order to reach the judgments (taṣdīqāt) through the two types of proofs, 
textual and rational.97 In stressing the logicality of Islamic legal theory, 
Bin Bayyah aims to reject the call to disassociate Islamic legal theory 
from logic (manṭiq). For this, he presents syllogistic analogy as an inte-
gral part of Islamic legal theory and highlights the importance of logical 
demonstration (burhān) for it. He presents the system of ratiocination 
(ta‘līl) as composed of three types of analogies: 1) syllogistic analogy 
(qiyās al-shumūlī); 2) inductive analogy (qiyās al-istiqrā’ī); and 3) juristic 
analogy (qiyās al-tamthīlī). In other words, the uṣūlī proofs fall back on 



126    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

either a universal (rational or textual) from which the particulars are 
derived (syllogistic analogy); induced universal deduced from the partic-
ulars (inductive analogy); or a particular deduced from another particular 
(juristic analogy).98 Therefore, for Bin Bayyah, the second muqaddima “is 
necessary to build the foundations of inference (istidlāl) and facilitate the 
ways for deduction which is the structure of the edifice of Islamic legal 
theory that frames its various issues.”99 Syllogistic analogy is crucial for 
the sound process of inference, for structuring its rules (qawā‘id) and 
arranging its proofs (burhān). It plays an important role in creating or 
refining concepts and determining the contents of legal reasoning to 
build a new framework, test the readiness of old frameworks, or produce 
frameworks new in types but old in the genus.100

In his discussion on the logicality of Islamic legal theory and the 
importance of syllogistic analogy for its structure, Bin Bayyah provides 
a summary of the debates of classical Muslim scholars such as al-Ghazālī 
(d. 1111), Ibn Rushd (d. 1198), Ibn Taymiyya (1328), and Najm al-Dīn 
al-Ṭūfī (1316). For Bin Bayyah, the disagreement between scholars on 
this issue revolved around three elements: 1) terminology; 2) the epis-
temic status of various types of analogy (syllogistic and juristic); and 3) 
the possibility of conversion of legal analogy into a syllogism.101

Regarding the first element, Bin Bayyah argues that both kinds of 
analogy can be constructed from textual sources. The terminology used 
in the Islamic sciences is not scriptural. Therefore, the terminology used 
to describe both juristic and syllogistic analogy cannot be considered 
non-Islamic. Regarding the second element, i.e., the epistemic status of 
various analogies, Bin Bayyah discusses al-Ghazālī’s argument that juris-
tic analogy leads only to probability (ẓann), whereas syllogistic analogy, 
properly structured, leads to certainty (yaqīn) and definitive knowledge. 
Hence, the juristic analogy cannot be used in rational matters (‘aqli-
yyāt).102 In contrast, Ibn Taymiyya challenged the epistemic status of 
syllogism. Based on a nominalist view, he rejected the idea of universal 
premises. He argued that “a complete induction of all particulars in the 
external world is …impossible, and thus cannot lead to a truly universal 
premiss or to certitude.”103 For him, both types of analogies can lead 
to certainty. It is not the form but the subject-matter (mādda) of the 



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     127

prepositions that determines the epistemic value of the conclusions. For 
Ibn Taymiyya, “both analogy and the syllogism yield certitude when 
their subject-matter is veridical, and they result in mere probability when 
their subject-matter is uncertain.”104 Therefore, analogical reasoning can 
be used also in rational matters (‘aqliyyāt).

Regarding the third element, i.e., the possibility of conversion of legal 
analogy into the form of a syllogism, Bin Bayyah draws from al-Ṭūfī’s 
attempt to mediate between al-Ghazālī and Ibn Taymiyya. In line with 
al-Ṭūfī, he argues that juristic analogy falls back on syllogistic analogy 
composed of two prepositions and one conclusion. For example, the 
jurist’s statement “nabīdh (date wine) is intoxicating, so it is forbidden 
like wine” summarizes the syllogistic construction “Wine is intoxicating, 
and every intoxicant is prohibited.” Syllogistic analogy is composed by 
two prepositions and one conclusion. In terms of subject and predicate 
that constitute it, syllogistic analogy is composed of six parts and takes 
the following form:

[S] Every intoxicant is [P] prohibited (ḥarām) → Major premise
  (universal)
[S] Nabīdh is an [P] intoxicant → Minor premise (Particular)
[S] Nabīdh is [P] prohibited → Conclusion

For al-Ṭūfī, like syllogistic analogy, the juristic analogy is essentially 
composed of six parts, but often the middle term is omitted—thus result-
ing in a structure composed of four parts as in the case of the expression 
“[s] Nabīdh is [p] intoxicant. Therefore, [s] it is [p] ḥarām”.105 In this way, 
for al-Ṭūfī, juristic analogy falls back to syllogistic analogy.

In western scholarship, formal logic is usually portrayed as a late-
comer in Islamic legal theory.106 Al-Ghazalī was instrumental in according 
to Aristotelian logic its acceptability and incorporating it into legal the-
ory.107 Nevertheless, Bin Bayyah argues that elements of the Aristotelian 
logic in legal theory can be traced back to the second century hijrī. He 
claims that from the second century Muslim scholars integrated logi-
cal definitions and theological terminology in their legal discourse. Bin 
Bayyah does not provide further details for his claim, but considers it 



128    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

sufficiently established so as to render Aristotelian logic a fundament of 
legal theory and a source from which the principles of Islamic legal theory 
are derived.108 Despite the attention allocated to the relevance of syllogis-
tic analogies to legal theory, Bin Bayyah writes that this topic has more 
relevance for theology than legal theory. In practical terms, the role of syl-
logistic analogy in legal theory is confined to the regulation (ḍabṭ) of some 
textual particulars to facilitate, in this way, the process of deduction.109 
Despite this, Bin Bayyah portrays calls to excise Aristotelian logic from 
legal theory as proceeding at “the expense of the correct understanding 
and the deep comprehension of the philosophy of Islamic legal theory, 
which affects the renewal and origination of legal rulings.”110 He expresses 
the importance of the relation between logic, maqāṣid, and Islamic legal 
theory by stating that comprehensive renewal consists in “planting the 
tree of ratiocination (ta‘līl) in the soil of maqāṣid watered by logic.”111

An important discursive step undertaken by Bin Bayyah consists in 
the expansion of the system of ratiocination beyond the three abovemen-
tioned types of analogies (syllogistic/inductive/ juristic) by including in 
it formal arguments like indicative analogy (qiyās al-dalāla), coexclu-
sive analogy (qiyās al-aks), and that of similarity (qiyās al-shibh).112 He 
also presents the central elements of ijtihād regarding the efficient cause 
(‘illa)—i.e., the verification of the hinge (tahqīq al-manāṭ), the extraction 
of the hinge (takhrīj al-manāṭ) and determination of the hinge (tanqīḥ 
al-manāṭ)—as integral parts of the system of ratiocination.113 Historically, 
the introduction of formal arguments in the structure of Islamic legal 
theory, particularly under the heading of istidlāl, was a later phenomenon 
(4th/10th and 5th /11th century)114. Their inclusion as integral part of istidlāl 
and the system of ratiocination was indebted to the appropriation of logic 
and dialectics in Islamic legal theory. As Hallaq states “At first, particu-
larly during the sixth/twelfth century, it was in the introductory pages 
of those uṣūl works which admitted the Greek logical element that such 
arguments appeared.”115 For Bin Bayyah these non-qiyās arguments allow 
the jurists to draw on a wider reservoir of legal mechanisms to respond to 
the new occurrences, in cases where a strict application of juristic analogy 
yields unwanted consequences. They demonstrate the importance of logic 
and dialectic arguments for Islamic legal theory and ijtihād.



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     129

Bin Bayyah presents the verification of the hinge as particularly 
important for the system of ta‘lil. In its essence, it consists in “applying 
the general principle to its individual cases” or ascertaining that “a ratio 
legis found in the original case (and agreed upon by scholars) also exists 
in a new case under examination.”116 As such, this legal mechanism is 
essential for the correct application of legal ruling in concrete cases. It 
requires a profound knowledge of both the Islamic legal rulings and 
the particular circumstances surrounding the locus of the legal rulings 
(maḥall al-ḥukm). Being an incubator of the universals, maqāṣid play 
a pivotal role in the realization of the verification of the hinge and in 
devising the correct juridical response to new realities. As Bin Bayyah 
states, “The objectives of sharī‘a take into account reality and deal with 
the new occurrences because they are a bridge and a path of passage 
between the changing reality and the inferred text (naṣṣ mu‘allal).”117

In Bin Bayyah’s discourse, the expansion of the system of ratio-
cination carves out an important role for maqāṣid, especially for the 
ijtihād based on unattested maṣlaḥa or unattested suitability (al-munāsib 
al-mursala). Both types constitute a form of ratiocination by universals 
(kullī). The former has been used particularly by Imam Mālik on issues 
pertaining to the penitentiary and discretionary punishments. It is based 
on his stance towards unattested maṣlaḥa that it is said that Imām Mālik 
permitted the extraction of forced confessions from those accused of 
crimes. Although in the Mālikī madhhab, such a position has been crit-
icized, nevertheless many classical scholars, like Imam al-Ghazālī, have 
portrayed it as a legitimate form of ijtihād and rational investigation.118 
The unattested suitability consists of the attachment to the mere maṣlaḥa 
without any attestation from a specific textual foundation. In this case, 
it is as if maṣlaḥa has become a special effective cause (‘illa). Strictly 
speaking, this form of ijtihād cannot be considered a juridical analogy 
because it does not consist in carrying a hidden particular to a more 
manifest particular as a consequence of a shared effective cause between 
the two. In the case of an ijtihād by unattested maṣlaḥa or suitability, 
we face a form of ta‘līl consisting in the deduction of a particular from 
a universal in accordance with specific conditions.119 In this way, for 
Bin Bayyah, any time the strict application of a juristic analogy leads to 



130    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

over-stringent conclusions, the mujtahid can use the istidlāl by maṣlaḥa 
and munāsaba or other forms of istidlāl (like qiyās dalāla, aks, and shibh) 
as an exit way from the narrow confines of qiyās to the broader area of 
maqāṣid and interpretation.120

The Inseparability of Maqāṣid from Legal Theory:  
Maqāṣid as the Heart of Uṣūl al-Fiqh

As we have seen, for Bin Bayyah, maqāṣid and legal theory are inex-
tricably connected. Maqāṣid operate within the uṣūlī mechanism of 
ratiocination, understood in a broad sense, and represent a type of 
ijtihād that concerns itself with the identification of the reasons why 
specific legal injunctions have been established. For Bin Bayyah, without 
the maqāṣid, Islamic legal theory is deficient whereas maqāṣid with-
out Islamic legal theory considerations are ineffective or fruitless.121 
In Bin Bayyah’s view, often scholars tend to negate the importance of 
maqāṣid for Islamic legal theory or conceive maqāṣid as a higher form 
of law-making that is self-subsistent and independent from Islamic 
legal theory. Bin Bayyah rejects categorically the idea that maqāṣid can 
exist and operate independently from Islamic legal theory.122 He argues 
that not only are maqāṣid embedded in the very fabric of Islamic legal 
methodology but that they constitute its heart. For him, the relation of 
maqāṣid with Islamic legal theory resembles that of the spirit with the 
body. Maqāṣid are Islamic legal theory itself and its inner dimension.123 
The actualization of Islamic legal theory in the light of maqāṣid implies 
the importance of the objectives of sharī‘a for Islamic legal theory in its 
entirety. As we mentioned earlier, Bin Bayyah does not restrict the role 
of maqāṣid in Islamic legal theory only to the framework of the system 
of ratiocination, but extends it to all its chapters.

As an illustration, Bin Bayyah presents more than thirty ways in 
which maqāṣid are blended into the texture of Islamic legal theory and 
are necessary for its sound functioning. He claims that these ways that 
demonstrate the way maqāṣid constitute the essence of legal theory are 
presented for the first time and constitute his particular contribution to 
the debate. We will recount here only a representative number of them:124



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     131

1 The particularization by a maqāṣid of a general (‘āmm) text. This is the 
case with Imam Mālik’s legal ruling that exempts the menstruating 
woman from the general prohibition of touching and reading from 
the Qur’an while in a state of major impurity (janāba). The exception 
of this particular case from the general prohibition is based on juris-
tic preference and the maṣlaḥa reasoning that the strict application 
of the original legal ruling would render difficult for women the 
memorization and remembrance of the Qur’an.

2 The relinquishment (al-‘udūl) of the requirement of a particular text 
(naṣṣ khāṣṣ) as a consequence of its clashing with a legal fundament or 
maxim. Such is the case with ‘Ā’isha’s refusal of Ibn ‘Umar’s report 
from the Prophet which states that a deceased person will be pun-
ished in the grave as a consequence of people weeping for his/her 
death. ‘Ā‘isha refused this authentic report based on an established 
maqāṣid foundation deducted from the Qur’anic verse: “No bearer of 
burdens will bear the burden of another” (Q. 53:38). Also, sometimes 
the requirement of a particular text can be relinquished to favor 
a higher legal objective (maqṣad). For example, ‘Umar prohibited 
applying the punishment of expulsion, foreseen for the virgin adul-
terer, despite a clear prophetic text on this regard. His legal judgment 
relied on the reasoning that the adulterer’s expulsion could bring his/
her to join the enemies’ ranks. In this case, the particular text clashes 
with the higher maṣlaḥa of keeping people within the fold of Islam.

3 The elucidation of an ambiguous expression (mujmal) through a 
maqṣadī meaning. For example, the Ḥanafis have understood the 
ambiguous Qur’anic term kurū’ as referring to menstruation. This, 
based on the understanding that the waiting period for a woman 
(‘idda) has been legislated to ensure that the woman is not pregnant 
and menstruation is a sign that confirms this fact.

4 The relinquishment of a manifest text based on a maqāṣid indication 
and its transformation in the fundament of the interpretation of the 
manifest text. For example, the Ḥanafīs and the Mālikīs have inter-
preted the word “mutabāyi‘ān” of the hadith: “The two contracting 
parties (mutabāyi‘ān) are free to rescind [their agreement] as long 
as they have not departed from each-other [i.e., from the contracting 
session]” to mean the bargaining (mutasāwimīn) parties. They have 



132    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

departed from the manifest meaning of the word mutabāyi‘ān (two 
contracting parties in a sale) in favor of the outweighed meaning 
(marjūḥ) of mutasāwimīn (the two bargaining parties) because in 
their opinion in a financial transaction, the objective (maqṣad) is to 
achieve precision (inḍibāṭ) and it is impossible to define or be precise 
when a sitting session starts and finishes.

5 Exercising preponderance between two general texts (‘umūmayn) in 
the light of a maqṣād that consists in the discernment of an efficient 
cause in one of the general texts and the absence of it in the other. 
For example, most Muslim scholars have given priority to the hadīth: 
“Kill whoever changes religion” over the Prophetic report that pro-
hibits killing women. The reason offered for this position is that 
the first text contains the efficient cause (i.e., the apostate is killed 
because he/she changed religion), whereas the second text does not 
state or contain an efficient cause. Therefore, the prohibition of kill-
ing women in the second text has been interpreted as applying to 
women’s killing on the battlefield.

6 The origination of a legal ruling (iḥdāth al-ḥukm) about which there 
is no considered suitability (munāsaba mu‘tabara). This is known as 
unattested suitability that falls back to the unattested maṣlaḥa. An 
illustration of this is the creation and establishment of the prison 
system by the caliph ‘Umar b. ‘Abd al-‘Azīz (r. 717–720) as deterrence 
for criminals.

7 Relying on the objectives of sharī‘a to preserve the blocking of the 
means (al-dharā‘i’) and the anticipation (al-ma’ālāt) of outcomes. It is 
in this context that the Ḥanbalīs and the Mālikīs have prohibited the 
selling of specimen based on the possibility that this method can be 
used to circumvent usury. The Ḥanbalī and the Mālikī scholars have 
understood the objective of the Lawgiver in prohibiting usury as that 
of prohibiting undo increase (al-ziyāda) and whatever leads to it.

8 The peculiarity of some of the legal injunctions specific only to the 
Prophet. For example, the Prophet avoided praying tarāwīḥ with the 
congregation, fearing that this would become an obligation. The effi-
cient cause behind this prophetic practice is the objective (maqṣad) 
in itself and constitutes an argument that this practice was specific 
only for the Prophet’s time.



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     133

9 The implication of correspondence (mafhūm al-muwāfaqa), which 
sometimes is called faḥwā al-khiṭāb and vacillates between analogy 
(qiyās) and verbal indicant (dalīl lafẓī). An example of this is the 
Qur’anic verse: “Say not to them a word of contempt” (Q. 17:23). 
What is meant by the verse is not to strike (ḍarb) the parent given 
that one of the intentions (qaṣd) of sharī‘a is to order the chil-
dren to show respect to their parent, which excludes any form of 
harm toward the parent. Here maqāṣid has been used to extract a 
legal ruling based on the implication of correspondence (mafhum 
al-muwāfaqa).

10 Maqāṣid and their relevance for the qualification of the unqualified 
(taqyīd al-muṭlaq). For Bin Bayyah, the searching for meaning is 
what is intended by the theory of the objectives of sharī‘a, and what 
follows is one concrete application of it. In the Qur’an, one of the 
expiations (kaffāra) for a false oath or ẓihār consists in the freeing 
of a slave. The expiation for an unintentional killing is also freeing 
of a slave, but with the additional qualification that the slave should 
be Muslim. The Ḥanafīs do not accept this qualification and have 
argued that, in this case, the objective of sharī‘a is to distinguish 
between two kinds of kaffāra, based on the different scale of the 
legal injunction on killing and that of oaths and ẓihār. In compari-
son, most scholars accepted the qualification of the unqualified texts 
and required that both in the case of oaths and ẓihār, the freed slave 
should be a believer. In their opinion, in this case, the objective of 
shārī‘a is to encourage the freeing of Muslim slaves. In Bin Bayyah’s 
opinion, both cases are based on a different evaluation of the maqāṣid 
that stand behind the legal rulings.

For Bin Bayyah, these examples show that maqāṣid are the heart of 
Islamic legal theory. The interconnections between maqāṣid and Islamic 
legal theory demonstrate the inseparability and the mutual relation 
between these two domains of Islamic law. The ways articulated by Bin 
Bayyah are indeed a strong argument for the intermingling of maqāṣid 
with Islamic legal theory, and Bin Bayyah has done a tremendous ser-
vice to the debate on this issue by proposing and articulating them. The 
cases mentioned by Bin Bayyah demonstrate the insufficiency of strictly 
linguistic or textual considerations in understanding the correct legal 



134    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

ruling for particular cases. They constitute a strong case for the need of 
maqāṣid deliberation in particular cases of Islamic legal theory analysis. 
Nevertheless, a closer look at the examples presented shows that the 
invocation of maqāṣid considerations comes into play only when strictly 
uṣūl deliberations fail to provide a sound legal outcome. The linguistic 
and textual considerations appear to still be the central uṣūlī way to 
arrive at the correct deduction of legal norms from textual sources. The 
maqāṣid factor, albeit part of Islamic legal theory, seems still an auxiliary 
dimension mobilized to provide legal clarity for cases whose meaning 
cannot be grasped by strictly uṣūl analysis.

Another seemingly problematic element is the fact that the exercise 
of maqāṣīd deliberation, in the above-mentioned cases, seems to be left 
to the rational discretion and subjective evaluation of the mujtahid. What 
are the criteria or rules that stipulate the cases when a general (‘āmm) 
text is particularized (yukhaṣṣiṣ) by a maqāṣid; an ambiguous expression 
is elucidated through a maqṣad meaning; or a manifest text is relin-
quished based on a maqāṣid indication? When is a maqāṣid consideration 
regarded as necessary for the sound understanding of a legal text? What 
is the correct method of applying the maqāṣid deliberations in such 
cases? What are the criteria that determine when a maqāṣiḍ method has 
been applied correctly, or not, in case of a disagreement between schol-
ars? For the most part, the introduction of maqāṣīd element to resolve 
the difficulties encountered in particular legal situations is the fruit of 
the legal intuition and acumen of the mujtahid. Despite their importance 
for the legal analysis of the issues in question, it seems that generally 
the maqāṣid elements, present in the cases mentioned by Bin Bayyah, 
lack clear-cut rules of procedure that will guarantee them the perceived 
objectivity, predictability, and stability claimed by the methodology of 
Islamic legal theory.

Moreover, most of the cases presented by Bin Bayyah are taken 
from the traditional disagreement (ikhtilāf) genre.125 A closer look 
at the way these cases appear in the ikhtilāf literature shows that 
that maqāṣid do not represent the only available way to resolve these 
apparently problematic cases. Even in the instances where maqāṣid 
reasoning is used it is not considered final and decisive by everyone.126 



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     135

Often conventional linguistic and textual uṣūlī reasoning are invoked to 
resolve the same problematic cases, mentioned by Bin Bayyah, without 
resorting to maqāṣid. For instance, regarding the third way presented 
by Bin Bayyah, the Mālikis have argued that although the singular 
kur’ is an ambiguous (mujmal) term and denotes either purity or men-
struation, nevertheless this word takes two plurals. The first is aqrā’ 
and refers to menstruation, whereas the second is kurū’ and refers to 
purity. The plural used in the Qur‘ān is kurū’. Hence the term refers 
necessarily to the period of purity and not menstruation. Here the 
Malikis have rejected the maqāṣid reasoning of their opponents and 
have resolved the issue by making recourse to uṣūlī linguistic analy-
sis. Moreover, in the fourth way mentioned above, Bin Bayyah argues 
that, based on maqāṣid considerations, the Ḥanafīs and the Mālikīs 
have interpreted the word mutabāyi‘ān (the two contracting parties) to 
mean mutasāwimīn (the bargaining parties). This based on the maqāṣid 
reasoning that the objective of every contractual session is precision. 
However, the Ḥanafīs and the Mālikīs have supported their stance on 
this issue by relying also on a particular feature of the Arabic language 
where sometimes the name for something is denoted by the thing that 
accompanies it. For this reason, the Prophetic hadith mentions muta-
bāyi‘ān to mean mutasāwimīn because agreement/contract follows 
almost always the bargaining process.127

As we can see, in both the abovementioned cases, instead of maqāṣid 
reasoning, various Islamic schools of law have relied on traditional uṣūlī 
linguistic mechanisms to defend their position. Although the same legal 
rulings have been justified through maqāṣid deliberations, as Bin Bayyah 
suggests, they have also been explained by relying on textual and lin-
guistic uṣūlī mechanisms. The ways presented by Bin Bayyah show how 
maqāṣid can be an integral part of the structure of Islamic legal theory. 
However, they seem to fall short in demonstrating that maqāṣid are 
Islamic legal theory itself, or its heart. At its best, the examples or the 
ways presented by Bin Bayyah demonstrate that in certain occasions, 
maqāṣid considerations are crucial for the sound understanding of legal 
rulings; but this does not necessarily mean that maqāṣid are always 
conclusive or more profound that textual and linguistic analysis. Bin 



136    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

Bayyah’s claim that the above-mentioned cases are a proof that maqāṣīd 
are the heart of uṣūl and that they are to uṣūl like the soul to the body 
now reads as overstated.

Conclusion

Bin Bayyah is overall successful in demonstrating how maqāṣid are inter-
woven in the structure of legal theory and relevant for its renewal. The 
discursive strategies adopted by him to ground his reform proposal on 
solid uṣūlī terrain are valuable and constitute a good starting point for 
further elaborations. In short, Bin Bayyah has articulated a constructive 
framework to envisage the relationship between maqāṣid and Islamic 
legal theory. His main strategy in showing the relevance of maqāṣid 
for the renewal of legal theory consists in the maqāṣid-based reorgani-
zation of existing legal frameworks and the expansion of the role and 
importance of maqāṣid for the system of ratiocination, especially istidlāl. 
Overall his project remains neo-traditionalist in nature: mostly focused 
on proving the inseparability from and the importance of maqāṣid for 
classic legal theory, rather than the comprehensive modern re-theoriza-
tion of maqāṣid, such as undertaken by Ibn ‘Ashūr. Hence, for the most 
part, his discourse on maqāṣid remains conventional and his project of 
the renewal of legal theory is mainly restricted to the reorganization, 
revision, or adjustment of some existing uṣūlī tools and legal frameworks. 
Bin Bayyah tries to make the case that maqāsid are not only important 
for classic legal theory but that, in reality, they are the heart of legal 
theory itself. As we saw, despite his original contribution in this regard, 
he falls short in convincingly demonstrating this point. Bin Bayyah’s 
conservative approach towards the renewal of legal theory seems at 
variance with his call for the need for a thorough reconsideration of 
many traditional legal rulings as a consequence of the epochal material 
and epistemic shifts brought by modernity. In this context, his substan-
tial legal reasoning (fiqh) appears to more faithfully reflect this sense 
of urgency for the reconsideration of the inherited legal tradition than 
what transpires from his cautious and restrictive model of renewal of 
legal theory.



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     137

Endnotes
1 See Nathan J. Brown, “Shari‘a and State in the Modern Muslim Middle East,” 

International Journal of Middle East Studies 29, no. 3 (1997): 359-376; Wael B. Hallaq, 
Shari‘a, Theory and Practice (Cambridge: Cambridge University Press, 2009), 255-
556; and Aharon Layish, “Islamic Law in the Modern World: Nationalization, 
Islamization, Reinstatement,” Islamic Law and Society 21, no. 3 (2014): 276-307.

2 See Sherman Jackson, “Literalism, Empiricism, and Induction: Apprehending and 
Concretizing Islamic Law’s Maqāṣid al-Shari‘ah in the Modern World,” Michigan 
State Law Review 2006: 1469-1486; Mohammad Hashim Kamali, “Issues in Legal 
Theory of Uṣūl and Prospects for Reform,” Islamic Studies 40, no. 1 (2001): 5-23. 

3 See Aḥmad Raysūnī, Tajdīd al-uṣūlī: nahw’ siyāgha tajdīdiyya lī ‘ilm uṣūl al-fiqh (Jordan: 
Al-Mahad al-‘Alamī li al-Fikr al-Islāmī, 2014); Yūsuf al-Qaraḍāwī, Dirāsa fī al-maqāṣid 
al-sharī‘a: Bayna al-maqāṣid al-kulliyya wa al-nuṣūṣ al-juz’iyya (Cairo: Dār al-Shurūq, 
2006); Abdullah Bin Bayyah, Itharāt tajdīdiyya fī ḥuqūl al-uṣūl (Riyād: Dār al-Ujūh & 
Dār al-Tajdīd, 2013); Mohammad Hashim Kamali, Actualization (taf‘īl) of Higher Purposes 
(Maqāṣid) of Shari‘ah (Herndon, VA: International Institute of Islamic Thought, 2020).

4 Some of his most important works on the topic include Mashāhid min al-maqāṣid 
(Riyād: Dār Ujūh lī al-Nashr wā al-Tawzī‘, 2012); ‘Alāqat al-maqāṣid al-sharī‘a bī uṣūl 
al-fiqh (London: Mu’assasat al-Furqān lī al-Turāth al-Islāmī, 2010); Tanbīh al-murāja‘ 
‘alā ta’ṣīl fiqh al-wāqi‘, 4th ed/ (Dubai: Markaz al-Muwatta, 2018), and Itharāt taj-
dīdiyya. For more on Bin Bayyah’s scholarly status and his religious positions, 
especially after the Arab Spring, see David H. Warren, Rivals in the Gulf: Yusuf 
Al-Qaradawi, Abdallah Bin Bayyah and Qatar-UAE Contest Over the Arab Spring and 
the Gulf Crisis (London: Routledge, 2021), 71-115 and Usaama al-Azami, “‘Abdullāh 
bin Bayyah and the Arab Revolutions: Counter‐revolutionary Neo‐traditionalism’s 
Ideal Struggle against Islamism,” The Muslim World 109, no. 3 (July 2019): 343-361.

5 Mohammad Hashim Kamali, Shari‘ah Law: An Introduction (Oxford: Oneworld, 
2008), 123-124.

6 Muḥammad Sa‘īd Ramaḍān al-Būṭī, Dawābiṭ al-maṣlaḥa fī al-sharī‘a al-islāmiyya 
(Damascus: al-Maktaba al-Umawiyya, 1966–67); see also al-Būṭī’s contribution in 
Abū Ya‘rub Marzūqī and Muḥammad Sa‘īd Ramaḍān al-Būṭī, Ishkāliyyat tajdīd uṣūl 
al-fiqh (Beirut and Damascus: Dār al-Fikr, 2006). For more on the debate between 
al-Būṭī and Marzūqī, see Abdessamad Belhaj, “The Reform Debate: Al-Marzūqi and 
al-Būṭī on the Renewal of Uṣūl al-Fiqh,” Ilahiyat Studies 4, no. 1 (Winter/Spring 
2013): 9-23 and Hallaq, Sharī‘a, 535-542.

7 See, Ḥasan Ḥanafī, Min al-naṣṣ ilā al-wāqi‘, vol. 1 (Cairo: Markaz al-Kitāb lī al-Nashr, 
2004); Abd al-Karīm Surūsh, al-Qabṭ wa al-basṭ fī al-sharī‘a (Beirut: Dār al-Jadīd, 
2002); Muḥammad Shaḥrūr, al-Kitāb wa al-Qur‘ān: Qirā‘a Mu‘āṣira (Cairo and 
Damascus: Sīnā‘ li al-Nashr, 1992).



138    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

8 Bin Bayyah, Ithārāt, 124-128; Tanbīh, 48-56. Regarding the paradigmatic shifts 
brought by modernity and its significance for Islamic jurisprudence, see Ovamir 
Anjum, “Managing Epochal Change in a Global Community: A Three-Dimensional 
Approach to Managing Diversity in Islam,” American Journal of Islamic Studies 37, 
no. 1-2 (2020): v-xviii.

9 Abdallah Bin Bayyah, The Exercise of Islamic Juristic Reasoning by Ascertaining the 
Ratio Legis: The Jurisprudence of Contemporary and Future Contexts (Abu Dhabi: 
Tabah Foundation, 2015), 22.

10 Bin Bayyah, Ithārāt, 23.

11 Bin Bayyah, Ithārāt, 23.

12 Bin Bayyah, Mashāhid, 104.

13 Bin Bayyah, Ithārāt, 24.

14 Bin Bayyah, Ithārāt, 24.

15 Bin Bayyah, Ithārāt, 24.

16 For the above-mentioned calls for reform, see Bin Bayyah, Ithārāt, 24-26.

17 Bin Bayyah, Mashāhid, 104.

18 See Yūsuf al-Qaraḍāwī, al-Siyyāsa al-shara‘iyya fī ḍū’ nuṣūṣ al-sharī‘a wa maqāṣi-
diha, 3rd edition (Cairo: Maktaba al-Wahba, 2008), 171-225.

19 Regarding the notion of religious authority and internal criticism, see Muhammad 
Qasim Zaman, Modern Islamic Thought in a Radical Age (Cambridge: Cambridge 
University Press, 2012), 34-35.

20 For a succinct analysis of the various contemporary reform proposals of Islamic 
legal theory, see ‘Alī Jum‘a, Qaḍiyyat Tajdīd Uṣūl al-Fiqh (Cairo, Dār al-Hidāyya, 
1993) and Waṣfī ‘Āshūr Abū Zayd, Muḥāwalāt al-tajdīdiyya al-mu‘āṣira fī uṣūl 
al-fiqh: Dirāsa taḥliliyya (n.p.; Ṣawt al-Qalam al-Arabī, 2009). See also Hallaq, 
Sharī‘a, 500-543. For an insightful classification of contemporary Islamic trends 
of renewal of Islamic Law, see Jasser Auda, Maqasid al-Shariah as Philosophy 
of Islamic Law: A Systems Approach (Washington: IIIT Publication, 2007),  
153-192.

21 As David Warren states, “Bin Bayyah echoes Qaradawi in his understanding of 
wasatiyya” (Rivals in the Gulf, 79).

22 These elements are manifested also in al-Qaraḍāwī’s discourse on maqāṣid and the 
renewal of Islamic law. See Auda, Maqasid al-Shariah, 150.

23 The similarity in jurisprudence (fiqh) between Bin Bayyah and al-Qaraḍāwī is 
especially evident in their articulation of the jurisprudence of minorities (fiqh 
al-aqalliyyāt). Cf. Bin Bayyah, Sinā‘at al-fatwā wa fiqh al-aqalliyyāt (Beirut: Dār 
al-Minhāj, 2008) and Yuṣūf al-Qaraḍāwī, Fī fiqh al-aqalliyyāt al-muslima (Cairo: Dār 
al-Shurūq, 2001).



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     139

24 For the ways in which these hermeneutical tools have been used by Bin Bayyah 
regarding sensitive topics like the Islamic state, the caliphate, interfaith dialogue, 
hudūd, jihad, etc., see Bin Bayyah, Tanbīh al-murāja’, 171-211 and Mashāhid, 294-321. 

25 On this regard, see Sherman Jackson, “Fiction and Formalism: Towards a Functional 
Analysis of Usul al-Fiqh,” in Studies in Islamic Legal Theory, ed. Bernard Weiss (Leiden: 
Brill, 2002), 177–201. For an overview of the western scholarly debate on the role of 
Islamic legal theory and its relation with substantive law (fiqh), see Youcef Soufi, “The 
Historiography of Sunni Usul al-Fiqh,” in The Oxford Handbook of Islamic Law, ed. 
Anver M. Emon and Rumee Ahmed (Oxford: Oxford University Press, 2018), 249-271.

26 Bin Bayyah, Ithārāt, 23.

27 Usaama al-Azami, “‘Abdullāh bin Bayyah and the Arab Revolutions,” 343. In his 
definition, al-Azami follows Brown’s description of the main features of what he 
calls “Late Sunni traditionalism”, which we have labeled here as neo-traditional-
ism. See Jonathan A.C. Brown, Hadith: Muhammad’s Legacy in the Medieval and 
Modern World (Oxford: Oneworld, 2009), 261-263. For more on the definition and 
understanding of neo-traditionalism, see David Warren, Rivals in the Gulf, 7; Usaama 
al-Azami, “Neo-traditionalist Sufis and Arab Politics: A Preliminary Mapping of 
the Transnational Networks of Counter revolutionary Scholars after the Arab 
Revolutions,” in Global Sufism: Boundaries, Structures, and Politics, ed. F. Piraino 
and M. Sedgwick (London: Hurst, 2019), 225f. and 278, n. 2; Walaa Quisay, “The 
Neo-Traditionalist Critique of Modernity and the Production of Political Quietism,” 
in Political Quietism in Islam: Sunni and Shi‘i Practice and Thought, ed. Saud al-Sar-
han (New York: I.B. Tauris, 2019), 242-243; Abdullah Ali, “‘Neo-Traditionalism’ vs 
‘Traditionalism,’” Lamppost, n.d., accessed October, 10, 2021, https://lamppostedu.
org/neo-traditionalism-vs-traditionalism-shaykh-abdullah-bin-hamid-ali.

28 Audah, Maqāṣid, 164.

29 Bin Bayyah, Mashāhid, 288-294 and Ithārāt, 76. As al-Auda states, it is precisely in 
this role of maqāṣid for the process of preponderance (tarjīh) and the selection of 
one legal ruling over the other that “neotraditonalism intersects with modernist 
reformism” (Auda, Maqāṣid, 164).

30 As Bin Bayyah states, “Islamic legal methodology is the best method (manhaj) 
invented by the Islamic genius to deal with the texts of divine revelation. It is an 
eternal method because its source and subject matter derive from the texts of rev-
elation and the language of the preserved Qur’an which guarantees its subsistence 
and ensures his purity” (Ithārāt, 159).

31 Here, Bin Bayyah seems to respond to scholars like Ḥassan al-Turābī (d.2016), Jamāl 
al-Dīn al-Aṭiyya (d. 2017), Ṭāha Jābir al-Ulwānī (d. 2016) and Salīm al-‘Awa (b. 1942), 
who each on their terms have argued for the need of a thorough reconsideration 
of the structure of Islamic legal theory. For more on their discourse, see ‘Ali Jum‘a, 
Qaḍiyyat tajdīd, 18-23.



140    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

32 See Yūsuf al-Qaraḍāwī, Fiqh al-zakāt, 25th edition, vol. 1 (Cairo: Maktaba Wahba, 
2006), 21-22; Fiqh al-jihād, 3rd edition, vol. 1 (Cairo: Maktaba Wahba, 2010), 35-36; 
Fiqh al-islāmī bayna al-aṣāla wā al-tajdīd, 2nd edition (Cairo: Maktaba Wahba, 1999), 
62-66; Madkhal lī al-Dirāsa al-Sharī‘a al-Islamiyya (Beirut: Muwassasa al-Risāla, 
1993/1414), 263.

33 This does not mean that this salafī tendency is not present also in Bin Bayyah or that 
his legal analysis lacks any originality. However, whereas scholars like al-Qaraḍāwī 
are more candid in acknowledging the bypassing of the legal tradition and the nov-
elty of their rulings, Bin Bayyah tries to present his legal conclusions as in conformity 
with the legal tradition, or certain aspects of it, or dispense with traditional rulings 
by invoking pragmatic notions like necessity (ḍarūra), need (hāja), maṣlaḥa, etc.

34 Muḥammad al-Ṭāhir Ibn ʻĀshūr, Ibn Ashur: Treatise on Maqāṣid al-Shari‘ah, trans. 
Mohamed el-Tahir el-Mesawi (Washington, IIIT publications, 2006), xxii.

35 See Ahmad al-Raysūnī, Muḥāḍarāt fī al-maqāṣid al-Sharī‘a (Cairo: Dār al-kalima li 
al-nashr wa al-tawzi‘, 2014), 178. See also Felicitas Opwis, “New Trends in Islamic 
Legal Theory: Maqāṣid al-Sharī‘a as a New Source of Law?” Die Welt des Islams 57 
(2017): 7-32.

36 Bin Bayyah, Mashāhid, 288. As Hashim Kamali states, “Bin Bayyah’s opinion on the 
relationship of uṣūl al-fiqh to maqāṣid is that they are inseparable from one another, 
albeit that maqāṣid is a distinctive chapter in the larger matrix of uṣūl alongside 
other chapters.” Kamali, Actualization, 9. 

37 Such a tendency is a common feature of contemporary proposals of renewal of legal 
theory. According to Warren, Bin Bayyah “follows Rida’s model of refashioning 
once-marginal classical concepts and modes of reasoning and bringing them to 
the center of Islamic legal thought” (Rivals in the Gulf, 74). However, in my view, 
rather than Riḍā’s modernist utilitarianism, in this case, Bin Bayyah follows the 
more conservative articulation of Riḍā’s model by revivalists and centrist scholars 
like al-Qaraḍāwī. 

38 Mohammad Hashim Kamali, “Maqāṣid al-Sharī‘ah: The Objectives of Islamic Law”, 
Islamic Studies 38, no. 2 (Summer 1999): 198; “Maqasid al-Shari‘ah and Ijtihad as 
Instruments of Civilisational Renewal: A Methodological Perspective,” Islam and 
Civilisational Renewal 2 (2011): 245-246; Shari‘ah Law: An Introduction (Oxford: 
Oneworld, 2008),124-125.

39 Kamali, Maqāṣid al-Sharī‘ah, 198. 

40 Felicitas Opwis, Maṣlaḥa and the Purpose of the Law: Islamic Discourse on Legal 
Change from 4th/10th to 8th /15th Century (Leiden: Brill, 2010), 15. See also Wael B. 
Hallaq, “Considerations on the Function and Character of Sunnī Legal Theory,” 
Journal of the American Oriental Society 104, no. 4 (October-December 1984):686.

41 Bin Bayyah, ‘Alāqat al-maqāṣid, 48. 



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     141

42 For a succinct analysis of the different usages of the term istidlāl in Islamic Law, 
see Muḥammad al-Rukay, Nazariyyat al-taq‘īd al-fiqhī wa athāruhā fī ikhtilāf al-fu-
kahā’ (Casablanca: Kuliyyat al-Adab wa al-Ulūm al-Insāniyya, 1994), 129-163; ‘Umar 
al-Maḥmūdī, Mafhūm al-istidlāl ‘inda al-uṣūliyyīn wa taṭawwur dalālatihī, accessed 
October, 10, 2021, https://diae.net/49098/.

43 Bernard G. Weiss, The Search for God’s Law: Islamic Jurisprudence in the Writings of 
Sayf al-Dīn al-Āmidi (State Lake City: University of Utah Press, 2010), 647.

44 For the abovementioned examples from the time of the Companions, see Bin 
Bayyah, ‘Alāqat al-maqāṣid , 39-40; Mashāhid, 55-57.

45 Bin Bayyah, ‘Alāqat al-maqāṣid, 39-40; Mashāhid, 55-60.

46 Ibn Taymiyya, Majmū‘ al-Fatāwā, vol. 30, 29. Quoted in Bin Bayyah, ‘Alāqat al-ma-
qāṣid, 41.

47 Quoted in Bin Bayyah, ‘Alāqat al-maqāṣid, 41; Mashāhid, 58.

48 Bin Bayyah, Mashāhid, 60-70.

49 Bin Bayyah, ‘Alāqat al-maqāṣid, 39-40; Mashāhid, 61-62.

50 On al-Shafi‘ī’s theory of ijtihād and especially on his position regarding istiḥsān and 
other istidlāl elements, see Muhammad bin Idris al-Shafi‘ī, Al-Shafi‘ī’s Risāla: Treatise 
on the Foundations of Islamic Jurisprudence, trans. Majid Khadduri (Cambridge: 
Islamic Text Society, 2010), 295-353 and Joseph A. Lowry, Early Islamic Legal Theory: 
The Risāla of Muḥammad ibn Idrīs al-Shāfi‘ī (Leiden: Brill, 2007), 327-357.

51 Bin Bayyah, ‘Alāqat al-maqāṣid, 44-45; Mashāhid, 63-64.

52 See Bin Bayyah, ‘Alāqat al-maqāṣid, 45. In his study of the Risāla of Imām al-Shafi‘ī, 
Joseph Lowry argues that “the Risāla can no longer be claimed to be the direct pro-
genitor of uṣūl al-fiqh” (Early Islamic Legal Theory, 360). Wael B. Hallaq situates the 
emergence of uṣūl al-fiqh, as a genre, at the end of the 9th and the beginning of 10th 
century: see Hallaq, “Was al-Shafi‘i the Master Architect of Islamic Jurisprudence?,” 
International Journal of Middle East Studies 25, no. 4 (1993): 587-605. For contrarian 
views that restate the importance of Imām al-Shafi‘ī’s Risāla for the emergence 
of Islamic legal theory as a genre, see Devin J. Stewart, Islamic Legal Orthodoxy: 
Twelver Shiite Responses to the Sunni Legal System (Salt Lake City: University of 
Utah Press, 1998), 30-37; Ahmed El Shamsy, “Bridging the Gap: Two Early Texts 
of Islamic Legal Theory,” Journal of the American Oriental Society 137, no. 3 (2017): 
505-36, and David Vishanoff, The Formation of Islamic Hermeneutics: How Sunni Legal 
Theories Imagined a Revealed Law (New Haven, Conn.: American Oriental Society, 
2011), xvi. For Hallaq’s response to the critics, see “Uṣūl al-Fiqh and Shāfi‘ī’s Risāla 
Revisited,” Journal of Arabic and Islamic Studies 19 (2019): 129–183.

53 For the various strategies developed by Muslim jurists to legitimize and ground 
juristic preference and public welfare in the structure of Islamic legal theory, see 
Hallaq, “Considerations,” 679-689.



142    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

54 Bin Bayyah, ‘Alāqat al-maqāṣid, 48; Mashāhid, 67-68.

55 Bin Bayyah, ‘Alāqat al-maqāṣid, 48; Mashāhid, 68. 

56 Hallaq, “Logic,” 318.

57 Hallaq, “Logic,” 318.

58 For the various textually-oriented strategies adopted to justify istiḥsān, see 
Mohammad Hashim Kamali, “Istiḥsān and the Renewal of Islamic Law,” Islamic 
Studies 43, no. 4 (2004): 561-581; Wael B. Hallaq, “Considerations,” 683-685.

59 Hallaq, “Considerations,” 684.

60 As Kamali expresses it, the textual orientation of Islamic legal theory is behind the 
reason why (although not denied in principle) “the maqasid remained on the fringes 
of the mainstream juristic thought that was manifested in the various themes and 
doctrines of Uṣūl al-Fiqh” (Maqāṣid al-Sharī‘ah, 198).

61 For the Aristotelian four types of causation and its presence in Islamic Philosophy, 
see Robert Wisnovski, “Towards a History of Avicenna’s Distinction between 
Immanent and Transcendent Causes,” in Before and After Avicena: Proceeding of the 
First Conference of the Avicenna Study Group, ed. D.C. Reisman and A.H. Al-Rahim 
(Leiden: Brill, 2003), 49-69.

62 Bin Bayyah, Ithārāt, 28. 

63 Bin Bayyah, Ithārāt, 28-30.

64 Bin Bayyah, Ithārāt, 28.

65 Regarding these three kinds of ijtihād, see Bin Bayyah, Ithārāt, 42-43.

66 For the first type of ijtihād, see ‘Abdullah Bin Bayyah, Amālī al-dalālāt fī majālī 
al-ikhtilāfāt (Bayrūt: Dār al-Minhāj, 2007); for the second, see al-Ithārāt and 
Mashāhid; and for the third type, see Tanbih and al-Ijtihād bī taḥqīq al-manāṭ: Fiqh 
al-wāqi‘ wa tawāqu‘ (Abu Dhabi: Mu’assasa Tābah, 2014) 

67 Bin Bayyah, Ithārāt, 62.

68 Bin Bayyah, Mashāhid, 294.

69 Bin Bayyah, Mashāhid, 302.

70 Bin Bayyah, Mashāhid, 305.

71 Bin Bayyah, Ithārāt, 70.

72 Bin Bayyah, Ithārāt, 67-77.

73 Bin Bayyah, Ithārāt, 67. 

74 Bin Bayyah, Ithārāt, 70.

75 Bin Bayyah, Ithārāt, 70, 72.

76 Bin Bayyah, Ithārāt, 70.

77 For Bin Bayyah’s analysis of the four uṣūlī circles, see Ithārāt, 70; Mashāhid, 294-295.



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     143

78 Bin Bayyah, Ithārāt, 70; Mashāhid, 295.

79 Bin Bayyah, Mashāhid, 296.

80 Bin Bayyah, Mashāhid, 298.

81 Bin Bayyah, Mashāhid, 299.

82 Bin Bayyah, Mashāhid, 299-300. For a series of classical examples of istiḥsān, see 
Bin Bayyah, Mashāhid, 297-301. For contemporary examples and analysis, see 
Mohammad Hashim Kamali, “Istiḥsān,” 561-581.

83 Bin Bayyah, Ithārāt, 71.

84 Shāṭibī, Muwāfaqāt, vol. 3, 171. Quoted in Bin Bayyah Ithārāt, 72; Mashāhid, 117. 

85 Shāṭibī, Muwāfaqāt, vol. 3, 176. Quoted in Bin Bayyah Ithārāt, 73; Mashāhid, 119.

86 Shāṭibī, Muwāfaqāt, vol. 1, 498. Quoted in Bin Bayyah Ithārāt, 73; Mashāhid, 119-120.

87 For the explanation of the above-mentioned possibilities, we have relied extensively 
on Bin Bayyah, Mashāhid, 78-79.

88 Bin Bayyah, Ithārāt, 75.

89 According to Bin Bayyah, “Ijraʾ al-ʿamal or jarayān al-ʿamal is to take a weaker view 
from (the views of) a credible scholar when passing a court judgment or issuing 
a legal verdict in a certain time or place for the purpose of realizing a particular 
benefit or preventing a particular harm” (The Exercise of Islamic Juristic Reasoning, 
29). See also ‘Abdullah Bin Bayyah, Ṣinā‘at al-fatwā wa fiqh al-aqalliyyāt (Jeddah: 
Dar al-Minhaj, 2008), 114.

90 On some concrete examples on this regard see, Bin Bayyah, Ṣinā‘at al-fatwā, 114- 
121 and The Exercise of Islamic Juristic Reasoning, 28-29.

91 Bin Bayyah, Ithārāt, 75. 

92 Bin Bayyah, Mashāhid, 302.

93 Bin Bayyah, Ithārāt,75. 

94 Bin Bayyah, Ithārāt, 70.

95 Bin Bayyah, Mashāhid, 288-294. See also Ithārāt, 76.

96 Opwis, Maṣlaḥa, 5-6.

97 Bin Bayyah, Ithārāt, 77.

98 Bin Bayyah, Ithārāt, 89.

99 Bin Bayyah, Ithārāt, 77.

100 Bin Bayyah, Ithārāt, 77.

101 Bin Bayyah, Ithārāt, 84.

102 Bin Bayyah, Ithārāt, 79-80. For more on al-Ghazālī’s discussion on the epistemic 
status of legal analogy, see Felicitas Opwis, “Syllogistic Logic in Islamic Legal 
Theory: al-Ghazālī’s Arguments for the Certainty of Legal Analogy (Qiyās),” in 



144    A M E R i C A N  J O U R N A L  O F  i S L A M  A N d  S O C i E t Y  3 8 : 3 - 4

Philosophy and Jurisprudence in the Islamic World, ed. Peter Adamson, vol. 1 (Berlin, 
Boston: De Gruyter, 2019), 93-112.

103 Wael B. Hallaq, Ibn Taymiyya Against the Greek Logicians (Oxford: Clarendon Press, 
1993), xxxv.

104 Hallaq, Ibn Taymiyya, xxxv.

105 Al-Ṭūfī, Sharḥ Mukhtaṣar Rawḍa, vol. 3, 225. Quoted in Bin Bayyah, Ithārāt, 84.

106 Hallaq, “Logic,” 315-316; Opwis, “Syllogistic Logic,” 95; Weiss, The Search, 648-649.

107 See Abū Hāmid al-Ghazālī, al-Mustaṣfā min ‘ilm al-uṣūl, critical edition of 
Muḥammad Yūsuf Najm, 3rd ed., vol. 1 (Beirut: Dār Ṣādir, 2010), 17-67.

108 Bin Bayyah, Ithārāt, 30.

109 Bin Bayyah, Ithārāt, 89.

110 Bin Bayyah, Ithārāt, 89. 

111 Bin Bayyah, Ithārāt, 161.

112 Bin Bayyah, Ithārāt, 90. 

113 See Bin Bayyah, Tanbih and al-ijtihād.

114 For more on the logic and the role of the formal arguments in Islamic legal theory, 
see Wael B. Hallaq, “Logic, Formal Arguments and Formalization of Arguments in 
Sunnī Jurisprudence,” Arabica 37, no. 3 (November 1990): 315-358.

115 Hallaq, “Logic,” 318.

116 Bin Bayyah, The Exercise of Islamic Juristic Reasoning, 5, 7.

117 Bin Bayyah, Ithārāt, 71.

118 Bin Bayyah, Ithārāt, 95.

119 Bin Bayyah, Ithārāt, 96.

120 Bin Bayyah, Ithārāt, 98-99 

121 Bin Bayyah, Ithārāt, 68; Mashāhid, 294.

122 Bin Bayyah, Mashāhid, 288.

123 Bin Bayyah, ‘Alāqat al-maqāṣid , 131.

124 For the following explanation and examples, we have relied extensively on Bin 
Bayyah, Mashāhid 154-180 and ‘Alāqat al-maqāṣid, 99-131.

125 See Ibn Rushd, The Distinguished Jurist’s Primer, volume 1-2, trans. Imran Ahsan 
Khan Nyazee (Reading: Garnet, 1994, 1996). For a close study of six traditional 
works of takhrīj genre together with many examples, see Atif Ahmed Atif, Structural 
Interrelations of Theory and Practice in Islamic Law: A Study of Six Works of Medieval 
Islamic Jurisprudence (Leiden: Brill, 2006). 



BE K A :  M A Q A Ṣ i d  A N d  t H E  R E N E WA L  O F  i S L A M i C  L E G A L  t H E O R Y     145

126 See al-Sharīf al-Tilmisānī, Miftāḥ al-wuṣūl ilā binā’ al-furu‘ alā al-uṣūl, critical 
edition of Muḥammad ‘Alī Farkūs (Beirut: al-Maktaba al-Makiyyā & Muwassassa 
al-Rayyān, 1998), 440-441.

127 al-Tilmisānī, Miftāḥ al-uṣūl, 473.