Legal Commentary

While on the road this past weekend, I had the chance to sit down with the 4/9/08 issue of the New Republic, and I highly recommend the following articles as especially thoughtful or funny or both.

• Cass Sunstein and Richard Thaler's excerpt from their new book on "choice architecture," entitled Nudge (Yale University Press). There's a great anecdote about designing urinals, which long-time readers of Prawfs know is an important theme here.
• Peter Miller's penetrating review of Samuel Kassow's book on the Oyneg Shabes archive and its implications for historiography. The book, published by Indiana U Press, is called, Who Will Write Our History? Emanuel Ringelblum, the Warsaw Ghetto, and the Oyneg Shabes Archive. Perhaps our guest this month, Adam L., has some grad school reactions to this essay?
• Charles Larmore's unforgiving review of Charles Taylor's gargantuan new tome. The review's title says a lot: "How much can we stand?"
• And last, Leon Wieseltier's shrewd assessment of Noah Feldman's latest NYTMag piece. My favorite line from Leon's essay: "I do not want The New York Times to become the voice of moderate Judaism, or of any Judaism. I want only that liberals desist from granting Muslims a reprieve from the rigors of liberalism." Another lively excerpt after the jump.

[Feldman] compares Islamic law to nothing less than "the American constitutional balance of powers." Philadelphia! But hold on. Reading Feldman's analysis, sharia begins to look rather unlike an apotheosis of progressive state-building. For the term "connotes a connection to the divine, a set of unchanging beliefs and principles that order life in accordance with God's will." It "is best understood as a kind of higher law." It is "a legal system in which God's law sets the ground rules." Political legitimacy in a regime of sharia is conferred not by the rulers or the ruled, but by "the scholars," who interpret--which is to say, invent--God's will, and appoint themselves: "judicial authority came from the caliph, but the law came from the scholars." In sum, a dictatorship of divines: malign or benign, but a dictatorship. (Today's Islamism does away with the scholars as "the constitutional balance to the executive," but demands "Islamic judicial review" of all legislation.) It may be that "shariah aspires to be a law that applies equally to every human being," but Feldman says little or nothing about its treatment of women and non-Muslims, or about the law of jihad.