Rights as a learning experience

Humanist, May-June, 2005 by David A. Niose

Rights from Wrongs: A Secular Theory of the Origins of Rights by Alan Dershowitz (New York: Basic Books, 2004), 261 pp., $24.00 cloth

WHERE DO RIGHTS come from? Noted legal scholar Alan Dershowitz poses this simple yet profound question in his 2004 book, Rights from Wrongs. His answer, in his inimitable style, will seem controversial to many, particularly religious conservatives: legal rights, he contends, come from wrongs.

Specifically, Dershowitz argues that the origin of rights can be explained empirically, that rights are created by societies to prevent the recurrence of wrongs. Rights aren't "eternal truths" that are "discovered." Rather, they are invented when societies learn that, without them, unacceptable consequences will result.

Dershowitz's approach to the origin of rights is significant in that it provides secularists with a valid theoretical basis from which to discuss the concept of fundamental human rights. In a lucid style that is easily understandable, even to the non-lawyer, Dershowitz methodically dismantles centuries of established legal theory, replacing it with his own pragmatic, humanistic approach to rights.

Historically, sometimes with sincere belief and sometimes with Machiavellian motives, those in power have often pointed to a god as the source of rights. But Dershowitz quickly dismisses any claim that rights are divine, saying "God's law has been the source of justification for genocidal crusades, inquisitions, slavery, serfdom, monarchy, anti-Semitism, anti-Catholicism, bigotry against Muslims, genocide against Native Americans, homophobia, terrorism, and many other wrongs."

Indeed, Dershowitz ponders, if a divinity is the source of rights, to whom does this god communicate them? How do we know which prophetic voice to believe--Moses, Paul of Tarsus, Muhammad, or Joseph Smith? And don't many holy books, including the Bible, condone abhorrent acts such as slavery and public stoning? If rights are eternal and divine, he queries, why does the notion of rights change so frequently?

It's difficult to argue with Dershowitz's plain logic: "In a diverse world where many claim to know God's will, and where there is consensus about neither its content nor the methodology for discerning it, God should not be invoked as the source of political rights."

Dershowitz is obviously sympathetic to the concept of rights, but he questions the reasoning of even the great civil libertarians. Thomas Jefferson wrote that it is "self evident" that humans are "endowed by their Creator with certain unalienable rights." But how "unalienable" are these rights if, in Jefferson's own time, only property-owning white men were worthy of them? Even in America's so-called free republic, the supposedly "unalienable" and "self-evident" rights have been ignored on countless occasions--the Alien and Sedition Acts, the conquest of Native Americans, slavery, and the internment of Japanese Americans during World War II, to name but a few.

The notion of rights being rooted in "natural law" is also unacceptable to Dershowitz. Rights are most certainly unnatural, he points out. Where in nature is there a tendency for the will of the government to succumb to the needs or preferences of an unpopular minority? "Natural law" has little regard for free speech, freedom of conscience, or the right of individuals to be free from unreasonable searches and seizures. Civilization is in many ways the taming of nature, Dershowitz argues, and the invention of rights for individuals--rights that will trump the will of those in power--is an extension of that idea.

Hence, rights were invented by societies in response to experiences, usually bad ones. Without free speech and a free press, governments have been repressive. Therefore humans invented those legal rights to create a desired result: a government that is less likely to become repressive. These rights weren't divine, nor were they naturally existing rights that needed to be discovered. They were simply invented to correct wrongs.

There is nothing idealistic about Dershowitz's approach to rights. He believes that the notion of rights arising from wrongs "builds on the reality that there is far more consensus about what constitutes gross injustice than about what constitutes perfect justice. If there can be agreement that certain rights are essential to reduce injustice, such agreement constitutes the beginning of a solid theory of rights." This minimalist approach sets him apart from John Rawls and others who have attempted to develop affirmative systems of natural law. Yet it's this minimalism that makes Dershowitz's approach both workable and, some would say, honest.

Referencing numerous philosophers and theorists, with frequent gravitation to Immanuel Kant and Jeremy Bentham for purposes of comparison and contrast, Dershowitz cuts his own path through the wilderness of rights theory. Like an evolutionary biologist debating a creationist, Dershowitz launches his arguments with the confidence and assurance of one who knows he has the facts on his side. Surely there's no substitute for the truth.