Good Reads: Israel's Iran debate, Scalia's 'originalism,' and blasphemy in Pakistan

This week's long-form good reads include the fire and fear driving Israelis' debate about a strike on Iran, a judicial debate with a surprisingly high profile, and the pernicious use of Pakistan law.

By , Staff writer

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    Tahir Naveed Chaudhry (l.) the lawyer of a Christian girl accused of blasphemy, talks with other lawyers outside a court proceeding in Islamabad, Pakistan on Friday, Sept. 7.
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While the US media has been in the throes of the presidential campaign over the past few weeks, in Israel the national debate has been squarely focused on whether to launch a preemptive -- and if necessary, unilateral -- strike on Iran’s nuclear facilities.  Writing for The Times of Israel website, David Horovitz draws out both sides’ arguments, and does so in such a way as to capture the passion with which each faction regards the issue. 

On one side are Israeli politicians and insiders who see Iran’s progression towards a bomb as an extraordinarily alarming echo of the German progression toward the Holocaust.  They warn: Iran is, very literally, an existential threat to Israel, and alternative solutions to dealing with Iran are wearing thin. If the country is to be safe, they say, Israel must hit Iran hard, even in the face of resistance from the US.

But many of those charged with leading Israel’s defenses – soldiers, security chiefs, and technocrats – argue as strongly against a strike, warning that it might bring about the very end it is meant to prevent. “To these people, [Prime Minister] Netanyahu and [Defense Minister] Barak are deemed to be capable ... of creating the circumstances in which a nuclear Iran really could become unstoppable. By launching an operation to stop Iran, they fear, Israel may end up liberating the Islamic Republic to cast off all constraints and break out to the bomb.”

Recommended: Iran's nuclear program: 4 things you probably didn't know

The strength of Horovitz’s analysis is that it captures not just the rational arguments, but the emotional charge as well.  He gets to the fire and the fear driving both sides, making clear why the debate has so gripped Israel. 

When the legal serf dictates to the king

The American federal judiciary tends to be a low-profile bunch.  With life tenures, federal judges can – and do – eschew the limelight to maintain the veneer of impartial adjudicators. As a result, intrajudiciary debates over judicial philosophy and technique tend to stay in the halls of academia and the courtrooms, and out of the streets and sidewalks where they would draw the public eye.  And when they do occur in the courtrooms, they tend to be one-sided: Higher courts dictate to lower, and it is not for lower courts to question what they are told.

That is what makes Judge Richard Posner’s review in The New Republic of Supreme Court Justice Antonin Scalia’s new book, “Reading Law: The Interpretation of Legal Texts,” so interesting: it inverts the usual procedure, and in a very public way.

Justice Scalia is one of the most influential conservative jurists of the modern era, being the leading proponent of “textual originalism,” the philosophy of interpreting laws according to what the words of the law meant at the time that they were written.  “Reading Law,” cowritten with Bryan A. Gardner, is an explanation of the textual originalist philosophy.  And as a Supreme Court justice, Scalia tends to get the final word on the law.

But Judge Posner – one of the foremost conservative legal scholars in the country and an appellate court judge for the Seventh Circuit -– takes the justice to task with a comprehensive dismantling of the rationales Scalia presents in favor of textual originalism.  Posner highlights instance after instance of Scalia foregoing originalist readings of laws when they lead to unappealing outcomes, and instead adopting legal approaches that he has previously reviled.

“Justice Scalia has called himself in print a ‘faint-hearted originalist,’ ” concludes Posner. “It seems he means the adjective at least as sincerely as he means the noun.”

It should be noted that while Posner and Scalia have exchanged extrajudicial criticism in the past, Posner told legal blog Above the Law that "There is no personal animosity between Justice Scalia and me, or at least not on my side."

"I suppose it’s unusual for a lower court judge to criticize judicial or extra-judicial work by a Supreme Court Justice in public," he said, but he noted that he is a former academic, "to whom disagreement in print, without personal animosity having engendered it, comes naturally."

Posner’s review is far from the final word, of course; it has naturally spurred further stout defenses of Scalia and originalism. But agree or disagree with Posner, his review is worth a look just for the rare sight of the serf dictating to the king. 

Pakistan's pernicious use of blasphemy laws

Pakistan’s ban on blasphemy is a pernicious beast, warns author Mohammed Hanif in a commentary for The Guardian, as it defies being explained.  You can’t give examples of it “because reproducing it ... would constitute blasphemy.”

But Mr. Hanif does an admirable job of sketching out the scope of Pakistan’s laws against blasphemy, and how they are largely used as clubs against rivals and minorities, like Rimsha Masih, the Christian girl recently – and apparently falsely – accused of defiling a Quran by Hafiz Mohammed Khalid Chishti, an imam with an ax to grind against Christians. 

Among the everyday situations that have led to the laws being invoked: misspellings by students, writing a poem for children, refusing someone a drink of water, and throwing away a salesman’s business card (the salesman had Muhammad as part of his name).

“All you need to do to condemn someone for life is to switch on a mosque loudspeaker and make the allegation,” Hanif writes. “Before Chishti was caught in his own trap in the Rimsha case, no accuser had ever been arrested or tried. The laws against hate speech are weak, and almost never implemented. And how can it be considered hate speech when all they are doing is expressing their faith that might include demanding death for all Shias and Ahmedis, and an occasional Christian who may or may not have crossed the line.”

It doesn’t have to be this way, Hanif suggests.  “Before the current law came into existence, in 60 years there were six reported cases of blasphemy. Since the current law was constituted there have been more than four thousand.” But the powerful catch-22 of the law is hard to overcome, he adds.  “[E]ven pleading the statistics is considered blasphemous.”

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