Another Essay--from the Natural Rights Right--on Rights from Wrongs

Claremont Review of Books » Fall 2005

The Rights and Wrongs of Alan Dershowitz

A review of Rights From Wrongs: A Secular Theory of the Origin of Rights, by Alan M. Dershowitz

By Hadley Arkes

Posted November 4, 2005

There he goes again: Alan Dershowitz has turned out another book. I know, I know, but look: over the years he has occasionally said sensible and even compelling things on the matter of Israel; and he has been a model of sobriety on dealing with terrorism and detention when compared with other, rather untethered, people on the Left. In fact, back in 1970, he wrote a piece for Commentary on preventive detention in Israel. Without quite intending it, he virtually replicated and amplified Abraham Lincoln's case for the suspension of habeas corpus, and did it in terms that resonated with our own time.

Curiously, that argument of Lincoln's has been omitted from the commentary that Professor Dershowitz offers in this new book, when he deals with the cases on detention. Lincoln's argument would have put him at odds with both Professor Dershowitz and Justice Scalia in their handling of these cases, and therein may lie the clue: Lincoln's argument ran back to the ground of moral judgment, or the principles of moral judgment that underlay the Constitution.

Professor Dershowitz has taken it, as the thesis threading through this work, that there are in fact no such moral principles that form the ground of our judgments. He claims to find the standards of practical judgment in a mix of considerations he calls "utilitarian," but he emphatically denies that there are "moral truths" that stand behind these judgments.

He professes himself to be "(God forgive me) a moral relativist," and a "skeptic" in moral matters. A moral skeptic denies that there are knowable truths. The relativist denies those truths from another angle by insisting that there are no objective truths, only standards that are "relative" to persons and places. "Nevertheless," says Dershowitz, "I believe strongly in the concept of rights." A concept of "rights"—but with no supporting truths that can explain why they are rightful, and why the rest of us should respect them. Hence the puzzle of this book, and the spectacle of a writer jousting with himself.

Alan Dershowitz has made a career in litigating and writing on the issues of the day as a lawyer, as a man who has taken as his vocation the rendering of justice. Yet he has not taken the occasion before this book to reflect in a probing, extended way about the very grounds of his judgments on the things that are right and wrong, just and unjust. By his own admission, then, this book should offer the key to his works.

Dershowitz has made provocation his signature tune over the years, and Rights From Wrongs offers the occasion to carry provocation to its deepest reach. For in the sweep of his denial of moral truths, he denies every moral premise of the American regime and the moral ground of the rights it was meant to secure. The American Founders and Lincoln took seriously the notion of "natural rights"—that certain rights were grounded in the very nature of human beings, and those rights would remain the same in all places where that nature remained the same. They would hold even in exotic places, as long as human beings were still distinguishable from the subhuman and the superhuman. And so, the concept of "human rights." Lincoln understood then that the republic did not begin with the Constitution, but with the Declaration of Independence and with that "proposition" from which everything else emanated: "all men are created equal."

Dershowitz seeks a regime with the widest field of rights—"rights such as those of equality, due process, freedom of conscience and expression, democratic participation, life, and liberty"—but he makes it resoundingly clear that he rejects every moral premise contained in the Declaration. "All men are created equal" may be a summoning sentiment, but he utterly denies that it has the standing of a truth, much less of a "self-evident" or necessary truth.

Jeremy Bentham regarded natural rights as "nonsense on stilts," and Dershowitz hauls out the banner of Bentham as he, too, denies natural rights: "Human beings have no singular nature… We are creatures of accidental forces who have no preordained destiny or purpose." The founders had looked to the "laws of Nature and of Nature's God" as the source of natural rights. But Dershowitz reserves his deepest contempt for the notion that we were "endowed by our Creator with rights," for he denies insistently, stridently, the notion of a God who disclosed a scheme of moral truths.

For Dershowitz these things are packed into a complete, repellent package: vast evils in the world have been carried out by those zealots who claim to know the truths disclosed by God. They claim to know absolute truths and to have a "monopoly" on the truth. They have produced religious wars and the Inquisition. Leaning on the Bible, they have defended slavery, denied the rights of homosexuals, and rejected even the right of a woman to control her body through abortion.

Without a hint of doubt, without any flagging of certitude on his own part, Dershowitz flatly asserts that "there are no divine laws of morality, merely human laws claiming the authority of God." Of course, in his own writing, Dershowitz has often invoked the parables of rabbis and made much of his persona as a Jewish intellectual. But the God of Israel is the Creator who authored the laws of physics and a moral law. To deny that God the Creator is also a legislator of the moral law is essentially to deny the God of the whole, the God known to the Jews.

Dershowitz does not make the point crudely explicit; but it is there, between the lines, and so when he remarks that he is "(God help me) a moral relativist," it is merely a manner of speaking. What he meant was, "God help me—if there is a God." Or he may be invoking the definition of the Jewish atheist as the one who persistently worries what the God who doesn't exist expects him to do. In any case, he glides past that matter of atheism and merely insists on a "secular" morality, a morality that has nothing to do with God.

Wherever he finds the ground of his judgments on the matters of right and wrong, he is adamant in rejecting any claim of "natural law" that seeks the standards of those judgments in "external sources such as God, nature, reason, or some notion of objective reality."

Now that maps out a problem worthy of our most agile minds. The alternative to the natural law is the "positive law," the law that is posited, enacted, or set down in any place. As Dershowitz recognizes, the positive law simply reflects the opinions of right and wrong that prevail in any locale. And so he remarks that "the vast majority of 'rights' claimed in any society, including our own, have no basis outside of positive law." Does that imply that the others rest on sources of moral understanding outside the positive law? But he has emphatically rejected any such sources, and indeed he goes rather far toward absorbing the premises of cultural relativism: if a certain primitive tribe leaves their aged on icebergs to die, well then that "iceberg practice works—for them," and it has a claim to our respect because "[t]hey consider it fair and humane."

At the same time, Dershowitz wants to find his own moral bearings by setting himself against the most dramatic evils—most notably against slavery and the Holocaust. And yet, by the premises of cultural relativism, the genocide in Germany, or the slavery in the American South, was morally tenable if the former was supported by the moral sentiments of Germans, or if slavery seemed to "work" rather well for the people in the American South. Plainly, Dershowitz will not accept any such conclusion. "[E]very reasonable person now recognizes that slavery was a grave injustice," he observes. And "no reasoned argument has ever been attempted on [behalf of genocide]." Reasonable? Reasoned argument? But Dershowitz has insisted that "reason" has no truths to disclose in the realm of morals.

If it did, we would be back with the American Founders and Aristotle—and their notion that the polity arises in the first place from the very nature of those creatures who can give and understand reasons over matters of right and wrong.

This moment of crisis in the argument is the moment that brings forth Dershowitz's invention, or his contrivance, of a moral theory. He professes not to know things that are "right" in principle, but he will make his way to moral judgments (as indeed others of us do) by beginning with the things that are "wrong." And in gauging wrongs he will fall back on the principles of "utility": genocide might have been thought defensible in Germany, and slavery right in America, but experience has shown, he says, that societies that practice genocide or accept slavery produce miseries on a vast scale. But miseries for whom?

By a utilitarian measure, the Germans could have found it quite beneficial to remove the Jews from the professions and to distribute their businesses and their wealth to deserving Aryans. Yes, the Jews were killed, but as their property was distributed, the assets were spread about the country and the incomes of other people were raised. The campaign against the Jews might well have made Germans, in the aggregate, a happier, more cohesive lot.

If the matter were left solely to the people on the scene, who was to say that genocide did not meet a utilitarian standard? Of course the experience bore no utility for the six million Jews killed in the Holocaust, but why did they count? On what ground were they to be regarded as "persons" whose injuries mattered in the world? Would we be silently slipping in the assumption that the lives of all human beings count? That is, are we backing into that notion of "all men are created equal"—that proposition that has, for Professor Dershowitz, no standing as a moral truth?

The question is hardly bizarre or out of place, for Dershowitz has shown how the same obfuscation takes place in our own country, even among the most liberal in our politics. He acknowledges that there are certain hard cases involved in abortion, but he has made it clear that he regards the right to abortion as a fundamental right, marking an expansion of rights under the Constitution. In celebrating this right, he has had to join his allies in masking from view the destruction of 1.3-1.5 million unborn humans every year for the past 30 years.

Those lives do not seem to register as victims or "lives" because, somehow, they just don't count. Dershowitz remarks, in one of his strangest passages, that fetuses move, feel pain and are evidently "'alive'—at least at a certain point in their development." But if the organism in the womb were not "alive" and growing, an abortion would be no more indicated than a tonsillectomy. And even a professor of law should know that, in the teachings of embryology, the organism does not undergo a change of species. That organism in the womb cannot be anything other than alive and human, at every stage of its being.

In one of the more interesting parts of the book, Dershowitz challenges the claim, deeply absorbed by liberals, to have sovereignty over their own bodies. He would overturn the presumptive right of people to withhold the organs of their own bodies, at the time of their death, if those organs could be used to preserve or enhance the lives of others. But it is a curious turn, for if he would override the sovereign control of one's own body for the sake of extracting organs that may save lives, why would he not override that sovereignty when it comes, not merely to retrieving organs, but to saving the actual life of a child in the womb? Especially when that protection poses no danger to the health or life of a pregnant woman.

Again, we may ask, why would those unborn children, in wombs, not count in the reckoning of victims and the measure of "human rights"? One would think that the burden of justification would fall to anyone who would try to explain why the offspring of homo sapiens is anything less than human.

This is not a side issue for Dershowitz, for he recognizes that in framing his own challenge to the policies of Nazi Germany, and indeed the murderous policies of other regimes abroad, he needs to appeal to a standard beyond the positive law of Germany or the Sudan or Serbia. He invokes then—no surprise—the notion of "international human rights." But if there are, strictly speaking, no "humans," identified by their nature, or rights that are true in all places, to what is he appealing? The answer, of course, is readily accessible to professors in law school: he is appealing to "positive international law and the norms of human morality."

When he is moved to appeal outside the positive law of Nazi Germany or the Sudan, he appeals to a wider "positive" law, the positive law of a larger community, outside the nation-state. As he has instructed us, though, these "international human rights" have standing as rights only because they are posited, or set down in conventions signed in international forums.

They reflect, that is, the opinions of people like Dershowitz, who get appointed to these meetings. He claims then that there is a "consensus" of societies running against policies of genocide. Consensus? Among whom? Have the cattle and horses been asked? Or are the only relevant actors here those beings we recognize as "humans"? But all humans? Are the policies against genocide really rejected by everyone, including the thugs in Iraq, Syria, Iran, Zimbabwe, and Serbia? Not exactly; it is a consensus, he says, among the "civilized," just as "all civilized nations condemned what the Nazis were doing in the name of German law." And yet, how do we identify the "civilized" as opposed to the barbarians, especially if the difference, as he says, is a matter mainly of local preference? Dershowitz has made it abundantly clear that he rejects the notion of "objective standards," grounded in "reason," which allow us to make those kinds of discriminations.

In short, we find a massive begging of the question, and a theory that is constantly chasing its own tail: rights are derived from the awareness of "wrongs." But if we have no ground for identifying rights, we have no clearer ground for knowing "wrongs." We could appeal to standards of utility, but only after we explain just who are the persons whose interests and injuries count.

And if there are no grounds for insisting that all human beings count, then utility would seem to offer merely a formula for the Right of the Strong: those with the power to have their will accepted as law will decide just who, among us, have lives that count. Those who order the abortions are the people who count, and the casualties simply don't weigh in the scale of things. And blacks in the South in the 1850s? They were not part of the political class; they were not part of the people whose consent had to be sought in a regime of elections.

Alan Dershowitz is an accomplished man of the law, but it would be hard to assemble a thicker compilation of mistakes about natural law than he has brought together in this slim book, in an ongoing diatribe against natural law. Every cliché is here, every sophomoric point of cleverness, without much awareness of the way these arguments have been addressed in the literature, or with no awareness of how thoroughly wrong, or even upside down, these arguments happen to be.

He takes natural law to be bound up with claims of revelation, detached from reason. That claim is not even true about theology, as the former Cardinal Ratzinger has explained, and it is certainly not true about natural law. As Thomas Aquinas famously remarked, the divine law we may know through revelation, but the natural law we know through the reasoning that is accessible through the reason that is natural to human beings. There may be no better example of natural-law reasoning than that fragment Lincoln wrote to himself, when he imagined himself engaged in a debate with the owner of black slaves. He was putting the question of how one justified the ownership of another human being:

You say A. is white, and B. is black. It is color, then: the lighter having the right to enslave the darker? Take care. By this rule, you are to be slave to the first man you meet, with a fairer skin than your own.

You do not mean color exactly? —You mean the whites are intellectually the superiors of the blacks, and therefore have the right to enslave them? Take care again. By this rule, you are to be slave to the first man you meet, with an intellect superior to your own.

The upshot of course is that there was nothing one could cite to justify the enslavement of blacks that could not apply to many whites as well. At no point in the chain of reasoning was there an appeal to revelation. It was simply the model of a principled argument, and it could be understood across the divisions of religion.

And so when Dershowitz says that he is offering a "secular" morality, he apparently does not understand that he is working precisely within the tradition of natural law, which has, in turn, also been shaped by our religious tradition. One thinks here, for example, of the Reverend Samuel Cooper, speaking at the inauguration of the new Massachusetts constitution in 1780: "We want not, indeed, a special revelation from heaven to teach us that men are born equal and free; that no man has a natural claim of dominion over his neighbours… These are the plain dictates of that reason and common sense with which the common parent of men has informed the human bosom."

And what of those "self-evident" truths, ridiculed by Dershowitz? Of course, the founders never meant "evident" to every "self" who happened down the street. As Aquinas pointed out, "it [is] true for all that the three angles of a triangle are together equal to two right angles, although it is not known to all." A self-evident truth was something that could be grasped as true per se nota, as something true in itself, with the force of an axiom.

When it came to "all men are created equal," it was a matter of grasping, with Aristotle, the distinctions that ran between humans and other animals. Even in this age of "animal liberation" the partisans of animal rights still do not sign labor contracts with their horses and cows. Nor do they seek the informed consent of their household pets before they authorize surgery on them. But we continue to think that beings who can understand reasons over matters of right and wrong deserve to be ruled with the rendering of reasons, in a regime that elicits their consent.

Dershowitz charges the founders with speaking nonsense when they talked of "unalienable rights": every law restricts freedom, and every tax imposed by the law involves a taking of property. The founders surely understood all of that, just as they understood that a right to life did not mean that the government could insure life everlasting. But human beings deserve at least a moral reason, a justification, before their lives are taken in the form of punishments or put at risk in war. Let's say we discover one day that the fire department has blocked off access to our street because of a fire, and in another instance, thugs have barred blacks or Jews from entering their neighborhoods.

We've had the wit in the past to recognize that the restriction of freedom in the first case is justified, while the restriction in the second case is not. The first involves restrictions that were put in place to guard the safety of others. The second involves unwarranted assaults. People of ordinary wit make distinctions of this kind every day, in a variety of settings. Dershowitz takes the point to mean that there are no fixed principles, that every moral judgment is contextual or contingent. But once again, he has it wrong or even backwards. Moral judgment is a matter of applying principles to concrete cases.

The circumstances may change, but the principles of judgment remain the same. Some notable professors of law wondered how the courts could move from pronouncing on the wrong of racial segregation in schools to reaching segregation in swimming pools. Did we need a new constitutional "right to swim"? Or did we merely have the same principle at work, covering every instance in which racial discrimination could be manifested?

One of the first principles, emerging from the very logic of morals, is that we do not hold people blameworthy or responsible for acts they were powerless to affect. The very logic of moral judgment must repel then every species of "determinism." From knowledge of a person's race, from his height, his weight, his deafness, we can draw no moral inferences about the goodness or badness of that person, or whether he deserves rewards or penalties.

If race "determined" or controlled our acts, none of us would be responsible for his own acts. None of us could be the subject of blame or praise. Where, then, would it be wrong to kill people on the basis of race, or assign benefits and disabilities to them solely on the basis of their race? Where would it be wrong to decide that a person afflicted with deafness has a life "not worth living," that he could rightly have his life "terminated"?

The answer, tendered in this tradition of moral reflection, is that these things would be wrong in all places where the laws of reason were intact. As wrong in Zanzibar as in Jersey City? The natives might not recognize the wrongness in all places, but that would have no bearing on the rightness or wrongness of the matter in principle. If the wrong was grounded in the laws of reason, then the wrong would hold its wrongness in all places, even in all "cultures." It is worth noticing that Dershowitz does not claim that the absence of moral truths, or the emptiness of natural law, holds only in America.

He claims to know that reason and nature disclose no moral truths anywhere, at any time. The proposition that "all truths are merely contingent" has, for him, no contingency about it at all. It will always be the case, in every setting, at any time. But if we can know things, true in all places, through the laws of reason, then that knowledge is anchored in truths outside ourselves, truths that we did not invent and cannot efface.

How could Dershowitz have been so wrong on every aspect of these matters? The charitable answer is that this is not his usual field. He was operating out of the area of his main strength. Of course, with the recent experience of Professor Dershowitz's colleagues at the Harvard Law School, other explanations suddenly arise: Professors Tribe and Ogletree explained some egregious lapses into plagiarism by reporting that certain books of theirs were written in part by their student aides, with only a cursory review.

A mischievous hypothetical: could it be that parts of Dershowitz's book are in conflict with one another because they were written by different hands? In a curious, telling passage, he refers to the author of the Dred Scott opinion as "Justice Roger Tawney," and to the author of the Brown v. Board of Education decision as "Justice Earl Warren." No one familiar with these cases, or the law, would have misspelled the name of Roger Taney; and he would have quickly corrected the text to read, in either instance, Chief Justice Taney and Chief Justice Warren. All of us need proofreaders, but there is a strong temptation to think that these pages were never read by anyone who had more than a passing acquaintance with the subject. The publisher, Basic Books, surely owed their author, and their audience, a better performance than this.

Professor Dershowitz, an estimable man, was ill-served both by his publisher and his friends, who said extravagant things on the dust jacket but offered no help in warning him off his missteps. He showed high spirit in venturing into a field in which he had apparently not read deeply. But I take him as one I can talk with on many matters, a man who can be part of the conversation. His offerings could have been taken as an interesting first draft, while his friends urged him to try something more strenuous, and his publisher counseled, decorously, that he let the matter ripen for a while.

To address the very grounds of our judgment on the things that are just and unjust is the central work for every teacher and commentator on the law. Dershowitz was right in thinking that everything in his work had to lead him to this point. But he would gravely deceive himself, and put the wrong stamp on his own legacy, if he left his teaching in this condition. For Dershowitz, and for others of us who write on these matters, this is the ongoing work. And even if we never say all that needs to be said, or say it in exactly the right way, it is this work, more than others, that we need to get right.