New Yok Times Gets It Wrong, Story at 11

The New York Times Magazine’s most recent issue (March 16, 2008) simultaneously features a shariah apologetic and an accusation that the Supreme Court is in the pocket of big business.
In the former, Harvard law professor Noah Feldman prescribes the election of Islamist parties and entrenchment of Allah’s law (as interpreted by a council of scholars) as the cure to the Muslim world’s ailments. In the latter, GW law professor Jeffrey Rosen contends that liberal and conservative elites — like NYT readers? — have colluded to do in the common man. There is so much wrong with these analyses, one hardly knows where to begin. (For a point-by-point takedown of the Rosen piece, see Eric Posner’s post on Slate’s new legal blog.)

Feldman, who “had a small role advising the Iraqi [constitutional] drafters,” sees shariah as both a proto-aspirational document somewhat akin to our Declaration of Independence and a source of law more legitimate than duly constituted (secular) legal codes. But both of these things cannot be: Either shariah is the law of God as strictly interpreted (on what authority?) by man or it is a non-binding sentiment, much like American politicians’ references to America’s Judeo-Christian values. Advocates of shariah would be the first to admit that if you’re going in for God’s law, you can’t summarily ignore its anachronisms. Let people live under shariah if they so desire, but be wary of its negative externalities.

Rosen, meanwhile, sees a conspiracy involving anyone who has ever studied the “economic analysis of law” (and uses phrases like “negative externalities”) while holding up as a paragon of judicial virtue a jurist who said he was “ready to bend the law … against the corporations.” At the same time, Rosen posits that the Chamber of Commerce destroyed Ralph Nader’s noble crusade to help the consumer and hoodwinked the Court — even, at times, that model of “liberal judicial restraint,” Justice Ruth Bader Ginsburg — by hiring a bunch of rich lawyers (presumably not the same rich lawyers who reap all the punitive damages from the state tort claims that Rosen lauds). These sentiments distort legal history and misunderstand the proper role of the judiciary; to paraphrase a salient point then-nominee John Roberts made at his confirmation hearings, the little guy should win when the law is on his side, and the big corporation should win when the law is on its side.

In short, those of us who believe in the rule of law rather than men and in a Constitution that circumscribes the powers of government are heartened by both the outcry against Rowan Williams and the Supreme Court’s near-unanimous view that corporations are people too (indeed, they are, but legal persons composed of human directors, officers, employees, and investors). But then perhaps we are all in on the conspiracy.

[Cross-posted at Cato's blog.]