Instead of saying what does Islam say we should ask what do Muslim jurists say on this or that point say Caliphate/Islamic State, rights of religious/sexual minorities/women, freedom of belief/disbelief, triple talaq, qurbani, permissibility of music, compatibility of modern banking with Islam, dress code and grooming/hair code?
To claim that Islam says this or that, is, generally speaking, impossible. We can only strive to know (to make best approximations) what Islam says/God really means/intends on questions usually asked – on other questions that are more foundational we usually don't need to ask and do largely know what Islam says as we know what our fitrah demands or what aqli saleem requires or what conscience allows. And jurists differ in their conclusions on almost all these questions. They don't differ in matters of worship to significant extent and that explains why none including Muslim modernists/reformists asks for reconstructing them. In transactions (muamalat) they are bound to differ and long back they have agreed to disagree (thus, as has been remarked by a modern scholar, synthesizing two apparently opposite traditionally rehearsed teachings "My community will not agree on error" "Difference of opinion in my ummah is a mercy"). It means shariah in practice becomes open ended and we can't close the debate that this or that is the Islamic view of it and hence uncontested. Before one can go for it or for any rigid polemics for and against the host of legal opinions that are hotly debated (our sermons and book shops are stuffed with this polemics on issues that God hardly minds and that require/invite divergent legitimate responses – and one wants to laugh at the anxiety to suppress difference), one needs to consider the following qualifiers or filters that force us to recognize essentially tentative nature of our views and give benefit of doubt to other opinions.
Unless deep thinking is done on the issue we would continue to have much heat and little light in debates on Islamic law. It means philosophers and social scientists should be part of the team of iftah on most issues where deeper understanding of new situations is required and social science provide needed insights. Iftah on more significant issues needs to be a team rather than an individual work and we might get, in many cases, effective Ijma thanks to modern communication facilities. Currently we find not even remote probability of arriving at a consensus on many issues that shouldn't have been dividing us so sharply – perhaps Muslim jurists and social scientists need to learn from the theory of communicative rationality and dialogue as developed by theorists such as Habermas. In fact we find the earliest instances dialogue in classical age being close to this ideal – everyone, not just majority, often, agrees on the solution proposed after discussion. Isn't it sad to note that the issues of democracy, mixing of schools of fiqh, many modern economic and social institutions, travel without muharram relative, women drivers/heads of larger institutions including state, burqa/hijab imposition, views on philosophy and Sufism, supposed innovations in popular piety/devotion, divorce etc. violently divide us to this date? From the day Muhammad Abduhu declared interest in modern banking legal and Egypt government later fixed 7% interest as legal to this day we find debate on riba (and its supposed identification with interest) and arguments for Islamic interest free banking continuing with little clarification for the State to consider what to do/could be done. Without a deeper understanding of what is economics in theory (of most influential economists who are not taught in Madrasah curriculum) and practice (in scores of banking/investment options that range from mostly shariah complaint to few noncompliant forms) we can't sideline much shoddy thinking that has been our bane. Without deep exploration of philosophy of politics/state (one notices, for instance, in thinkers from Plato and al-Farabi to Arendt and Voegelin), the question of Islam's view of the Caliphate/Islamic state today would suffer from much shoddy thinking and thus erroneous reactions on the part of both conservatives and liberals. Without good art historians/theorists to guide us, we can't arrive at a satisfactory understanding of Islam's position regarding such things as painting/music/housing design. Within the mainstream traditional setting we find, especially lately, some attention to this problem and thus we find likes of Shibli, Abdul Bari Nadvi, Taqi Usmani, Majid Daryabadi, Manazir Ahsan Gilani and number of scholars from Iran who had been more open to modern debates, contributing their bit to illuminating a host of philosophical, theological and legal issues.
God has sent shariah and as such it has never been debated by any Muslim school/sect. What has been debated and continues to be debated is this or that interpretation of Shariah. Fiqh is the attempt to think and concretize shariah and it differs not just from school to school but even from jurist to jurist. Since God wants to save all souls or make the world livable for everyone who agrees not to destroy it for others, and people differ from region to region, from time to time, from stage to stage of their lives, fiqh adapts accordingly. Fiqh is open ended – all of us including laymen are invited to exert themselves in choosing their decisions so that God's intention is fulfilled – there are situations where no fiqh manual comes to our help and we stand naked before God/conscience. It is interesting to find all kinds of opinions within the prescribed limits entertained by Muslim jurists and we find upbringing, politics, theology, considerations of public good etc. impacting on them. Regarding the much debated hudood ordinances in Islamic law, it is liberating to note how Islam's theory of limits, worked insightfully in Muhammad Sharur in contemporary times, makes man free to choose from one end of the spectrum to the other without incurring any sin. Applying mathematical notion of limit (to the Quranic notion of hadd) developed by mathematicians of the West, certain old controversies in hudood/inheritance laws get reframed and almost resolved. He has argued that "Allah set the limits for the law whose upper and lower boundaries encompass the scope of legislation that human societies are allowed to explore freely." Leaving a critical discussion of Sharur for some other occasion, I conclude with a few references to history for us to meditate upon.
• "Originally, individuals were free to select and follow the school of ijtihad they preferred. They could even combine it with preferred parts of the jurisprudence of other schools. As the State grew more powerful, such choices were increasingly taken out of the hands of individuals. Ultimately, the State took choice away from Muslim citizens altogether in many areas of the law by selecting the jurisprudence of one of the schools as the law of the land."
• There have been not just fuqaha but philosophers and Sufis and poets who have engaged with the problem of law in their own way, especially in debates on principles and objectives. Iqbal dismissed tendency of legalism (that Jesus, Sufis, poets fought against) thus "teri tarz-e-ada faqeehana ho to kya kahyaey."
• Thanks more to political than religious reason, effective sidelining of philosophers in the mainstream juristic thinking – we find jurists such as Al-Mawardi and his Ordinances of Government and juristic manuals such as Hedaya rather than philosophers such as Al-Farabi and works such as Virtuous City at the centre of attention and more influential – has been a development that is now difficult to maintain due to severity of new challenges in the secularizing world. And we know new impulses for thinking today we owe primarily to philosophers. It is philosophers like Iqbal and Fazlur Rahman who fundamentally contributed to new thinking on Muslim law. Dozens of contributors to Muslim legal thought now invoke these two and the Muslim world, in practice, has already embraced many new ideas in formulating laws/constitutions.
• We have rather a small corpus – around 200 (some stretch it to 500 or 600) Quranic verses and less than 3000 (or arguably around 1500 only) prophetic traditions that have legal import – as basic source to think about (although every verse and tradition is important as background/context). Various notions in the debates on fiqh including qiyas, ijma, custom, custom, public interest, juristic preference, maqasid etc are requirements/fruits of meditations on this corpus.