Rights from Wrongs: A Secular Theory of the Origin of Human Rights by Alan Dershowitz (Basic Books United States 2004, $US 16.32 ISBN 0 465017 14 4)
Reviewed by John Heard in Policy.
It would be difficult to find a legal writer with more baggage than Alan Dershowitz. Infamous for suggesting – some time before the idea was co-opted, without citation, by Australian scholars – that torture, in limited circumstances, might be an acceptable response to terror, Dershowitz was previously accused by Norman Finkelstein and others of plagiarizing large segments of his text The Case for Israel from a book by Joan Peters, From Time Immemorial: The Origins of the Arab Jewish Conflict Over Palestine.
Even his legal career has followed a stellar and slightly odd trajectory; the youngest ever Felix Frankfurter Professor of Law at Harvard he also once successfully defended Harry Reems – an actor in Deep Throat – from obscenity charges and figured prominently in the defence of Claus von Bülow, OJ Simpson and Mike Tyson when the first two faced murder and the last rape charges.
It is perhaps not altogether surprising then that Dershowitz has published a text on, of all things, human rights.
In Rights from Wrongs Dershowitz presupposes a moral atrocity and builds his theory of rights upon responses to it. The academy, secular and modern and therefore bereft of a unifying metaphysics of justice, is to use the moral outrage encountered after such an event to discern and delineate human rights. Dershowitz, in his inimitable prose, argues that while one might not know what is right anymore, most people have a good understanding of what is wrong. He uses events like the Shoah as examples of unambiguous human rights abuses.
Such events demonstrate ‘a conception – or a consensus – about the very bad society, and the wrongs that made it so’ which Dershowitz uses to introduce and enunciate a system of ‘nurtural rights’. He chooses this term deliberately to set it over against the ‘natural rights’ commonly referred to in jurisprudence, especially the discourse on natural law. He rejects Aristotle’s views on rights and draws heavily on the ‘nature versus nurture debate’. Finally, he favours secularism mainly because of his inability to understand how human governments can trample rights that derive from God. It seems Dershowitz is unaware of the basic tenets of Scholastic theory that resolved this conundrum about seven hundred years ago.
Other than some long, off-topic detours around Dershowitz’s pet political peeves – at one point he dismisses opposition to gay marriage by treating it as superstition at best before conceding its opponents might have some moral integrity if not for the naturalistic fallacy – the text is a setting-out and a defence of Dershowitz’s theory. Curiously for a book that spends so much time attempting to sell readers on the flaws in natural law thinking, Dershowitz appears to be unaware of the writings of the theory’s contemporary champions, generally understood to be John Finnis at Oxford, Robert P George at Princeton and Germain Grisez formerly of Georgetown, currently at Mount St Mary’s Emmitsburg. If he is aware of them, like the Scholastics they’re never mentioned. This is perhaps understandable in a relative sense, not even Sts Augustine and Thomas Aquinas, the masters par excellence of natural law, rate a mention.
By attempting to introduce such a peculiarly divergent theory – Dershowitz hopes to find a middle way between natural law and positivism – in such a brief text, Dershowitz leaves himself vulnerable to attack on numerous fronts. What if there are no rights tragedies? In the absence of a specific rights violation, to what do rights adhere? More pragmatically, why should we trust Dershowitz that society will correctly identify rights violations and universally condemn them? Indeed, why should anyone leave human rights to the whim of vaguely defined human ‘consensus’? What if people just don’t care, don’t feel outraged? Dershowitz’s book introduces an innovative understanding of human rights as risk management. This does not, however, add value to the rights debate. If anything, rights defined by moral outrages create a perverse incentive to foment turmoil.
In a fundamental sense then for Dershowitz there is no sanctity, no goodness and certainly no truth about the human person. There is only evil – or more precisely, only our sometime outrage at some ‘wrongs’. This might not offend the anti-metaphysics of a secularist but here rights are reduced to the corollary – not always logical – of some kind of infraction. Rather than a supremely rational theory picked out from the premised ruins left by twentieth century legal theory and the supposed loss of truth, Dershowitz’s is a litigator’s economy of human rights, where man is valued not because man, rather because capable of injury. In Dershowitz’s professional and now academic worldviews, an uncompensated injury is the supreme wrong; indeed it is the definition of injustice.
This entails the conclusion, perhaps unforeseen by Dershowitz that the strongest man – and more disturbingly – the strongest nation need not contemplate human rights. Certainly the strong remain bereft of a prima facie rational incentive to either recognize or protect human rights. Such thinking can be manipulated more easily than that of other rights theories to buoy the collective ego of a society that considers itself unerringly decent or – God forbid, comfort the sensitive tyrant.
It cannot be ignored that Dershowitz’s theory would privilege those who are most put upon, which is immediately good – certainly would privilege the Jewish people’s suffering above all others’ in a taxonomy of wrongs – but this is still troublesome. Human rights must be based on humanity defined absolutely, not on an ever-splintering assortment of quantified particular wrongs. By neither premising his theory on the human nor even on human rights, rather on the events that precipitate moral outrage Dershowitz would limit the franchise of freedom. In practice this would shackle rights protection to an unwieldy fact-finding bureaucracy, impairing the universal imperative that human rights, however fragile, continue to own.
Elie Wiesel presented Dershowitz with an Anti-Defamation League award in 1983 and was quoted then as saying, “if there had been a few people like Alan Dershowitz during the 1930s and 1940s, the history of European Jewry might have been different.” Alarmingly however, and despite obvious good intentions, if murderous despots then or today had been reading Rights from Wrongs there is no good reason to conclude they would consider it a compelling deterrent to the next human rights outrage.
- Spring 2005
