Review of Rights from Wrongs

RIGHTS FROM WRONGS: A SECULAR THEORY OF THE ORIGINS OF RIGHTS, by Alan M. Dershowitz.

Reviewed by Erin Ackerman, Department of Political Science, Johns Hopkins University. Email: Erin.Ackerman@jhu.edu .

Harvard Law professor Alan Dershowitz argues in his latest book that the case for rights—why we need them, where they come from, why they are worth the price we sometimes pay for them—needs to be taken out of the courtroom and made directly to the people. In RIGHTS FROM WRONGS: A SECULAR THEORY OF THE ORIGINS OF RIGHTS, Dershowitz does just that—outlining for a popular audience rights theories and their importance to democracy. Rights need to be popularized, Dershowitz argues, to make the citizenry more committed to them and more skeptical of attempts to abridge them. The book is timely, prompted by Dershowitz’s concern that current “efforts to alienate so many rights in the name of fighting terrorism (and in the name of God)” (p.58) might slip past an unaware or unconcerned public.

Dershowitz argues that “rights” represent society’s attempt to avoid grievous harms suffered in the past. Rights exist only as a response to the experience of wrongs. Rather than starting from an ideal of perfect justice, rights are created from the bottom up, working from instances of recognized injustices.

Dershowitz believes that existing theories of rights suffer from two general problems. First, they are not psychologically compelling—they fail to adequately persuade people to respect or acknowledge rights. Second, existing theories do not adequately distinguish rights from mere preferences. We need a theory that explains what rights are for and why a polity should respect rights enacted in earlier eras.

Two of the most important traditional theories of rights—divine law and natural law theories—suffer from major problems, according to Dershowitz. Divine law theories have two primary weaknesses. First, different religious traditions recognize different rights, which results in uneven protection as well as encouraging skepticism about the accuracy of revealed truth. Second, we would need rights even if there were no God.

Likewise with natural law theories. Rights are, Dershowitz argues, a most unnatural state of affairs. Although we may have a keen sense of our individual entitlements and interests, “it is not in the nature of most human beings to value the rights of others above their own immediate interests” (p.37). Thus, entrenchment of rights is designed to counteract the state of nature. This human aspiration to move beyond “the natural ‘is’ of selfishness . . . to the less natural ‘ought’ of altruism . . . grows out of our human experience with the wrongs produced by untrammeled [*84] selfishness” (p.38). Treating rights as human inventions, not inevitable discoveries, is more likely to be socially and politically effective, Dershowitz believes, because the entrenchment of rights is a conscious effort to create a more just society.

Having made short work of other claims as to the origins of rights earlier (“Rights do not come from logic, because there is little consensus about the a priori premises from which rights may be deduced . . . Rights do not come from the law alone, because if they did, there would be no basis on which to judge a given legal system”(p.8)), Dershowitz turns to his own theory.

“We cannot endure without morality, law, and rights. Yet they do not exist unless we bring them into existence” (p.79). Through his “nurtural” or “experiential” approach, Dershowitz comes to define rights as “those fundamental preferences that experience and history—especially of great injustices—have taught are so essential that the citizenry should be persuaded to entrench them and not make them subject to easy change by shifting majorities” (p.81). Rights are intended to prevent, or at least slow down, injustices.

Rights are often characterized as anti-democratic, as they limit or prevent implementation of majoritarian decisions. Dershowitz responds to this concern by arguing that his theory of rights is more democratic and less elitist than divine or natural law theories, as the nurtural approach arises from what the people consider a better society. “I do not see rights, properly limited, as antithetical to democracy properly defined. Rather they are the most important elements of the system of checks and balances within a democracy” (p.160). Based on a society’s experience, rights can expand and contract to balance the priorities of the popular majority with the need to protect individuals from injustice. Finally, the experiential approach values a broad sense of pluralism, as polity-wide agreement on what constitutes “the good” is not required. It is enough to have collective experience with some aspects of “the bad” and wish to avoid them.

Among the strengths of RIGHTS FROM WRONGS are that it offers an alternative to comprehensive theories of rights for those who have not found them to be wholly convincing, and that it stakes out a middle ground in the perennial debate over constitutional interpretation. Since rights need not be regarded as fixed or perfect, and are thus open to revision, the nurtural theory supports the “living Constitution” approach. At the same time, it privileges the original assumptions of those who frame provisions as having insight into the perception of and reaction to injustice.

In the book’s final section, Dershowitz attempts to bridge the gap between theory and practice by applying the nurtural approach to contemporary political issues, such as the “right to life,” freedom from censorship, separation of church and state, animal rights, and whether the deceased have rights in their bodies and organs. This section of the book is somewhat uneven, as not all of Dershowitz’s “injustices” will strike everyone as of equal importance. [*85]

This leads to one of the major gaps in Dershowitz’s explanation, one that is of particular interest for political scientists. How or why does rights-making happen in cases other than the most extreme ones? For rights to be useful, they will need to protect us not just from the most extreme kinds of harms, but also from the more mundane but still deeply damaging wrongs that are part of collective life. But here Dershowitz has a problem, because people will not all agree on which of these more common harms are sufficiently bad to give rise to rights. That seems to imply that we will need a political process for making that decision.

Dershowitz relies on the existing political process, “our dynamic system of governing, which eschews too much concentration of power. American sovereignty . . . is a process reflected in such governmental concepts as checks and balances, separation of powers, and judicial review. More broadly, it is reflected in freedom of the press, separation of church from state, academic freedom, the free-market economy, anti-trust laws and other structural and judicial mechanisms that make concentration of power difficult” (p.156). The experiential theory offers little new guidance for situations in which citizens disagree about what constitutes an injustice, and how and where it should be remedied. Instead he gives us the political process we already have. This threatens to bring up again the counter-majoritarian problem that Dershowitz is trying avoid. It seems that either his theory is clearly applicable to only a very small set of extreme cases, or that he will have to offer us a more thorough explanation of what new tools his theory provides for resolving political disputes over rights and institutional jurisdiction.

Another point related to political disputes is the concern Dershowitz expresses over the proliferation of a new variety of “rights talk,” which he attributes to right-wing litigation and rhetoric, used “to deceive the public into believing that an invocation of governmental power is really an exercise of individual rights” (p.164). Dershowitz’s solution? “Unless it can be shown convincingly that a claimed right is necessary to prevent serious wrongs, majority rule should prevail. The proliferation of claimed rights not only trivializes those fundamental rights that have proved their value from experience, it endangers democratic governance. Rights are not right unless they prevent wrong” (p.168).

Are we to refrain from using a language of rights until our professed experience of injustice is validated? Rights talk is a widely used political strategy because it is effective—it resonates within our legalized society and reflects individuals’ beliefs about what is owed to them by governments and from fellow citizens. There is a sense of rights consciousness that is part of the fabric of everyday life, not an exceptional state. Dershowitz appears to believe it necessary to protect the interpretation and status of rights by reserving them for the most serious abuses, a formulation which might seem to many somewhat anemic or ineffective.

RIGHTS FROM WRONGS is an excellent introduction for laypeople interested in the broad contours of the academic debate over rights. Specialists and students are likely to find [*86] Dershowitz’s central argument—the grounding of rights in the experience of injustice, instead of traditional rights philosophy—both familiar and more suggestive than conclusive. Overall, the book is better at sketching the outlines of the issues than it is at giving a thorough explanation and resolution of the persistent concerns around the use and legitimacy of rights claims.