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In this week’s eSkeptic Kenneth W. Krause reviews Rights From Wrongs: A Secular Theory of the Origin of Rights by Alan Dershowitz (Basic Books, 2004, ISBN 0465017134).

Kenneth W. Krause lives with his wife Cindy, along the Mississippi River in Wisconsin. Kenneth is a freelance writer with degrees in Law, History, Literature, and Fine Art.

Rights From Wrongs:
A Secular Theory of the Origin of Rights

a book review by Kenneth W. Krause

Does a god or nature provide us with a source from which we can “discover” our rights? Should human beings have rights even if nature provides none and even if gods do not exist? If our rights cannot be discovered, by what means should we create them?

These are among the questions presented in Rights From Wrongs, a relatively uncomplicated book authored by Harvard law professor, Alan Dershowitz. The book is basic in the sense that, to a considerably more informed and rational American public, the answers to such questions would, in general terms, be obvious.

Without squandering his readers’ valuable time with metaphysical dicta, Dershowitz correctly concludes that rights do not originate from any god, “because God does not speak to human beings in a single voice.” Even the relatively idiosyncratic God of Abraham is variously named and defined; first, according to the particular texts and traditions its followers emphasize, second, according to such followers’ geographical and cultural circumstances, and third, according to each individual follower’s psychological needs and preferences.

Nor do our rights derive from nature, Dershowitz argues, “because nature is value neutral.” For example, few if any students of science or history would contend that any law of nature provides for the defense of the weak against the strong. Values, much like religious beliefs, are and have always been culturally determined.

Dershowitz appears to understand that, when America’s founding fathers and their contemporaries professed a reliance on nature’s prescription for rights, they were mistaken at best, or, as Jeremy Bentham suggested more cynically, simply trying to “get their way without having to argue for it,” that is, without having to first persuade typically self-absorbed and short-sighted majorities.

Even if religionists could reduce their practices and texts, or even if natural rights devotees could condense humanity’s elemental character down to a coherent canon of undeniable entitlements, should they?

Many progressives might argue affirmatively, urging that we ought to at least pretend there exists a perfect and absolute source of rights in order to thwart every majority’s tendency to tyrannize minorities. Dershowitz, by contrast, appears to believe that a rationally designed and maintained constitutional republic would be both rigid enough to withstand popular oppression and flexible enough to respond to evolving historical contexts.

Many conservatives might reach the same conclusion, arguing that humans require a divine or otherwise absolute source of rights because, in its absence, we couldn’t possibly resist or manage our baser instincts. As Dostoyevsky’s Grand Inquisitor suggested, “If there is no God, all is permitted,” and as Catholic League president, William Donohue, averred more recently, “If there are no moral absolutes, we’re back to different strokes for different folks.” Dershowitz reminds us, however, that fraud and other human failings is never an effective solution to a problem, but in fact only an engraved invitation to additional and perhaps more severe crises.

Nevertheless, the historical record is clear — disasters ensue when cultures submit to claims of divine command or natural law. Citing slavery, anti-Judaism, anti-Catholicism, homophobia, inquisitions, genocidal crusades, and contemporary terrorism, the author reminds us: “God-talk only encourages the kind of theological warfare that has plagued our world [for centuries] and now threatens our very existence.” Similarly, warns Dershowitz, the “elitist messages” of natural law encourage disrespect for one’s fellow man, and inevitably, “self-righteous lawlessness.”

But rights we must have if we intend to protect our minorities from bigoted majorities, the constituents of which all too frequently advocate for the curtailment of every citizen’s rights in the name of safety or convenience. And rights we must have if we intend to defend democracy’s sacrosanct and central element — the free marketplace of ideas. Dershowitz confirms that Americans must respect the Framers’ original intent with respect to our Constitution, which was to create “an enduring charter of liberty capable of responding to changing conditions.”

Although civil rights are an indispensable safeguard against popular caprice, majority rule should prevail, the author writes, “[u]nless it can be shown convincingly that a claimed right is necessary to prevent serious wrongs.” Once such a case is made, the right in question must be elevated above the legislative process, though never so high that it becomes completely unassailable.

Humans, then, must “invent” their rights, Dershowitz surmises, from a list of “agreed-upon wrongs.” Rights must be synthesized from our collective experiences with past disasters we would never want to see repeated. We should build our canon of rights not from a “top-down” utopian perspective, but rather from a “bottom-up” dystopian view of bygone tragedies. In short, the author concludes, we should “build rights on a foundation of trial, error, and our uniquely human ability to learn from our mistakes.”

From the womb of historical injustice, then, a rational and informed public would deliver liberties, the implementation of which should warranty against the reoccurrence of such disasters. From slavery and Jim Crow, from Know-Nothing nativism and World War II internment, Americans would deliver equal protection and due process. From the Alien and Sedition Acts and McCarthyism, we would deliver freedom of expression; and from the Salem witch hunts and the Philadelphia riots of 1844, we would deliver freedom of conscience.

Or would we?

Perhaps Dershowitz’s theory is more utopian than he cares to admit. On what basis does the author conclude that Americans could ever agree as to which experiences constitute such wrongs? And in asking Americans to so agree, is the author advocating that rights be invented according to majority rule? Are average Americans sufficient to that task? These questions, although unavoidable, are never effectively addressed in the text.

Dershowitz contends that our actions in the wake of September 11, 2001, verify that we have learned a durable lesson from our internment of 117,000 Japanese Americans during World War II. But this analogy fails miserably. In 1941, for example, our allies were already at war — struggling for their very existence — and hardly in any position to protest. And perhaps most significantly, the Japanese were not among the most prolific producers and suppliers of Western oil.

On the other hand, abundant evidence suggests that we have not absorbed history’s lessons. After all, the Patriot Act and our former Alien and Sedition Acts are not wholly incomparable in their paranoid spirit. And the comments of our most prominent leaders, including President Bush (“We need commonsense judges who understand our rights were derived from God”), House Majority Leader De Lay (“Only Christianity offers a way to live in response to the realities that we find in this world”), and Supreme Court Justice Scalia (“[G]overnment carries the sword as ‘the minister of God,’ to ‘execute wrath’ upon the evil doer”), manifestly suggest that Americans have long ignored the tragic history of religious establishments.

And what could ring more quixotic than a request that Americans base their judgments on a sophisticated appreciation of the past? In order to “learn from the mistakes of history,” as Dershowitz suggests we do, one must first have a working knowledge of that history, or, at the very least, a discernible desire to acquire it. But, if the substance of our popular media is any indication of the breadth and depth of such knowledge, and of the intensity of such desire, Americans are about as likely to know their history as George W. Bush is to familiarize himself with the collected works of Voltaire, Elizabeth Cady Stanton, and Bertrand Russell.

Nevertheless, Dershowitz is correct that “an experiential reaction to wrongs is more empirical, observable, and debatable, and less dependent on unprovable faith, metaphor, and myth than theories premised on sources external to human experience.” Adaptation is the key. Neither gods nor natural laws, if they exist, have ever demonstrated an appropriate capacity to expand or contract according to humanity’s evolving needs. As Dershowitz aptly observes:

The function of rights — indeed, of law and morality — is to change that natural condition for the better: to improve upon nature, to domesticate its wild beast, and to elevate us from the terrible state of nature into a state of civilization. It is a never-ending challenge. If the advocates of rights fall asleep at the wheel for even one historical moment, there is danger that the natural human condition will rear its ugly head, as it has so many times over the millennia.

Judicious advice indeed, to a people whose current leaders shamelessly campaign for the official implementation or maintenance of religious establishment, political loyalty oaths, coercion and torture, censorship, and the further degradation of the people’s protections from illicit searches and seizures. Judicious advice indeed, to a people who generally regard television and periodical infotainment as adequate sources of continuing education.

Alan Dershowitz’s answers might be painfully obvious to many readers of this review, and they are clearly imperfect. Nonetheless, they are honest and, as such, the most helpful suggestions offered thus far.

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