Choice Architecture Cont’d


A couple emails:

Dear Mr. Goldberg,   I wanted to make a couple of comments about your posting on libertarian paternalism.   Over the last week, I have been reading Up From Liberalism by William F. Buckley (inspired in part by National Review’s memorial edition).  In reading your post, what struck me was that your description of Thaler and Sunstein’s ‘choice architecture’ seems awfully similar to Buckley’s comments on academic freedom in his book.  That is, Buckley rejects the notion of academic freedom as perfect openness and indifference to all alternative ideas.  This implies to me that a university should express some preferences for better ideas over worse ones.   At a higher level all these arguments depend on anthropology, as theologists use the term; that is, what are people like and how do you determine what people are like.  Under a certain set of anthropological premises, the society described in Brave New World make sense.  It’s the premises that are offensive.   Some of the current conflicts among conservatives (think about the Republican presidential primaries) stem from conflicting answers to these anthropological questions that have not been ironed out.  The genius of the Meyer approach was to find an anthropological foundation that libertarians and social conservatives could both support.  Perhaps we need another Frank Meyer to sort out these questions again.

And from the Old Whig:

The more we hear “Libertarian Paternalism” elaborated, the more it resembles shari’a! After all, shari’a is merely a form of “choice architecture,” itself elaborated over many centuries by the “ulama of the umma” or “elite of the community.”


These limits, ordained by the Wisdom and Lovingkindness of God, are of two kinds, corresponding to the dual nature of man as soul and body. As soul and body complement one another in the human organism, so do the two aspects of law complement one another in the social organism. The limits ordained for the soul of man define his relations to God, i.e. prescribe the principles of religious belief and in particular the acts whereby these are given outward expression, namely, the five ‘Pillars of the Faith’. Similarly, the limits set to the bodily activities of man define his relations to his fellow-men. These form the subject-matter of law in the narrow sense, i.e. questions of personal status, family organization (including marriage and divorce), holding and disposal of property, commercial activities, and penal law, although the Western distinctions between civil, penal, private, and other kinds of law are not recognized in the Muslim law-books.


The consequence of this was that Law was never quite separate in conception from Duty, and never became fully self-conscious. As the standard definition put it: ‘The science of law is the knowledge of the rights and duties whereby man may fitly conduct his life in this world and prepare himself for the future life.’ The Shari’a was thus never erected into a formal code, but remained, as it has been well said, ‘a discussion on the duties of Muslims’. This characteristic determines the nature of the judgement passed upon the various activities of which it takes cognizance, a judgement which goes back to the basic conception of a divine legislation mediating absolute standards of Good and Evil. The majority of actions do not come within the scope of law at all, since the initial principle of liberty assumes that in the absence of revealed information about an action it is morally (and therefore legally) indifferent. Such actions are therefore technically called ‘permitted’. The remainder are either good or bad in themselves, but in both cases the law recognizes two categories, an absolute and a permissive. Thus the full scheme comprises five grades or classes:


1. Actions obligatory on Believers.
2. Desirable or recommended (but not obligatory) actions.
3. Indifferent actions.
4. Objectionable, but not forbidden, actions.
5. Prohibited actions.


The ethical or ritual element enters, further, not only into the classification of actions but also into the sanctions of law. These are not, in consequence, consistently worked out, and religious penalties frequently supplement or take the place of social or civil penalties.


H. A. R. Gibb, “The Shari’a,”


Best wishes,

An Old Whig



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