Document Type

Article

Publication Date

2004

Abstract

The combination of presence (of Islamic law) and absence (of legal transplant) in the course materials assigned by Islamic law instructors, the scholarship on law in the Islamic world by Islamic law scholars as well as by Comparatists, betrays an ideological project. I would describe it as an identitarian one with an underlying teleological notion of history. By identitarian I mean the positing of a common identity shared by all "Muslims" based on their religio/legal beliefs, a project that to my mind recalls what I called earlier the "fantasy effect." "[F]antasy is the means by which real relations of identity between past and present are discovered and/or forged." In this instance what is being "fantasized" through the assigned materials and the scholarship is the identity between Muslims in their past and Muslims in their present, as well as the identity between Muslims' relationship to their law in the past and their relationship to their law in the present. This ideological project has an underlying teleological notion of history because it assumes that the "spirit" of Islamic law marches through history unencumbered by the world's contingencies (in this case the legal transplant). The latter might sever the relationship between Muslims-in-the-world with the spirit of their law, but this is only momentary and is destined to end. The spirit, ultimately, will be joined with its believers because the contingencies of history are inconsequential for this pre-ordained relation between believer and idea. Short of this moment of re-joining with the spirit, Muslims are destined to feel the bite of existential alienation.

Publication Citation

52 Am. J. Comp. L. 789-824 (2004)

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