Right By Others
Justice: What’s the Right Thing to Do?
Michael J. Sandel
Vivian Gornick
When I was young, I thought that Hillel’s “do unto others as you would have others do unto you”—the Golden Rule—was all the political theory necessary to make the world a good place in which to live. The Rule demanded only that I honor the same irreducible humanity in my fellows that I identified in myself. Just as I understood that I wished—no, needed—to not be dismissed, discounted, or traduced; restrained, cheated, or humiliated; robbed, raped, or murdered; so I understood that all other persons needed the same. This practice alone would provide the equality necessary to make all of us see ourselves in one another.
Equality. The word itself moved me, made my heart sing. Instinctively, I felt that equality was the key to human comradeship. In fact, I thought that it almost didn’t matter how impoverishing or threatening a circumstance might be, so long as it was experienced equally. Repeatedly, throughout history, it had been shown that the most soul-destroying of conditions—wars, plagues, depressions—could be borne if shared equally. (A recent study, published in the United States as The Spirit Level: Why Greater Equality Makes Societies Stronger, actually argues that everything—life expectancy, infant mortality, obesity levels, crime rates, literacy scores, even garbage collection—improves in societies that are more rather than less equal). It was inequality, I was certain, that did the damage; inequality that destroyed one’s innate sense of self-worth.
Not all political philosophers agree with me that equality is the word (that is, the concept) to concentrate on. For instance, Harvard professor Michael Sandel, absorbed by the question of how to make a good society, certainly thinks justice is the better word with which to address the ethical dilemmas that arise when we make decisions about “the right thing to do”—either on our own behalf, or on behalf of society.
Sandel presents ethical dilemmas that allow readers to consult their feelings and also demand that they use their reason.
Justice: What’s The Right Thing to Do? is a book-length summary of a celebrated survey course on the moral basis of political philosophies ranging from Aristotle to John Rawls, given by Sandel, a remarkably skilled teacher who, over the course of some 30 years, has learned how to be undergraduate-lucid: anyone who has reached the age of reason can read the book. Its cleverness lies, especially, in Sandel’s continual re-creation of homely situations that allow his readers to consult their feelings, while demanding that they use their reason in trying to figure out whether this or that approach to a question of justice makes sense. As Kathleen Sullivan, Professor at the Stanford law school and a former teaching fellow of Sandel’s, remembers it, “He posed moral dilemmas so acute one could escape the agony only by thinking.”
Three approaches to justice—the welfare of the community at large, the rights of the individual, the value of good citizenship—are the heart of Sandel’s matter. How to reason one’s way through the thicket of argument both for and against each of these perspectives—all concerned with the relation between rights and obligations—is the subject of this book. In service to it, Sandel puts up, then knocks down, then resuscitates the reasoning of political philosophers who have struggled, over many centuries, to understand what it is that a human being needs in order to feel that he or she is being treated justly. Sandel posits an opinion about “the right thing to do,” then reflects on that opinion, then works to name the principle on which it is based.
Roughly speaking, ancient theories of justice were concerned with making morally responsible citizens, while modern theories are concerned with individual freedom. None of these theories can separate cleanly from one another—“Devoted as we are to freedom . . . the conviction that justice involves virtue as well as choice runs deep”—but, Sandel suggests, political philosophy, as a practice, can “give shape to the arguments we have, and bring moral clarity to the alternatives we confront as democratic citizens.”
What subsequently comes under discussion are Aristotle’s devotion to the virtue of citizenship; Jeremy Bentham’s to utilitarianism (the greatest happiness for the greatest number); Robert Nozick’s to libertarianism (my person and my goods are mine and mine alone to do with as I please); John Rawls’s to an equalizing “fairness” that owes much to Immanuel Kant, the philosopher who struggled hardest with the question of the individual’s rights and obligations in a modern society.
For Kant, Sandel tells us, “morality . . . is about respecting persons as ends in themselves.” No social end is justified—whatever the gain or advantage—if its achievement depends on making instrumental use of other people, because such usage is degrading; to feel degraded is to know injustice. One must always treat humanity, Kant insisted, “whether in your own person or in the person of any other,” as an end-in-itself, never simply as a means, so as to avoid that degradation. This was one formulation of his “categorical imperative.”
By declaring the definition of moral worth to be that which treats each and every person—including oneself—as objectively and unconditionally valuable, Kant requires not so much that people ask for justice as that they teach themselves how to dispense justice. Why? Because that, he said, is the road to freedom. For Kant, freedom was not about appetite and acquisition, it was about agency. To hold oneself responsible for one’s own actions was to achieve agency.
Two centuries after Kant, the American political philosopher John Rawls took another shot at justice, society, and the individual. For Rawls, justice is fairness; his intellectual struggle was to lay out the argument for a society that could achieve it. Here is how he reasoned: no one is intrinsically more worthy or more deserving than anyone else of a favored starting place in society. If you are rewarded because you are blessed with wealth, beauty, or talent—endowed with drive, intelligence, or self-confidence—it is only because you are lucky enough to be living in a society that happens to value these qualities. The rules of the particular game into which you were born have determined the social agreement in your favor. But what of those not so favored? Are they to be punished while you are inordinately rewarded? A just society will be one that aims at eliminating those levels of disparity so huge they are experienced as what Kant would have called degrading. How do we approach the making of such a society?
Rawls’s answer, Sandel tells us, is simple: basic liberties for all (such as freedom of speech, movement, religious belief), fair opportunities regardless of social class, and social and economic inequalities so manipulated that the least fortunate of a society’s citizens rather than the most will be taken into consideration. Which means that the free market will not call the social shots.
Those who are born lucky will not be held back, but luck will not permit a super privileged life to be lived side by side with a super deprived life. The gifted will be free to develop and exercise their talents—and, no doubt, to the swift will go the race—but the social understanding is that, beyond an agreed upon point, “the rewards these talents reap in the market belong to the community as a whole.” Rawls’s theory thus embraces a Kantian link between respect and self-respect: the expectation is that if the individual in society is accorded the means sufficient for self-respect, the need to exert power over others will dissipate; and with that dissipation, moral (that is, social) responsibility will come as close to actuality as we can get.
“Whether or not [Rawls’s] theory of justice ultimately succeeds,” Sandel remarks generously, “it represents the most compelling case for a more equal society that American political philosophy has yet produced.” I say generously because he disagrees strongly with Rawls’s essential position that a “political conception of the person” as an individual is central to any workable idea of a just society. For Sandel, the claims of those “loyalties and attachments” that defy pure individual interests—family, religion, patriotism—are the very meaning of society.
At this point Sandel himself, as philosopher rather than teacher, weighs in, pitching a communitarian view that argues, much as Aristotle argued, that “only by living in a polis . . . do we fully realize our nature as human beings.” Egalitarian or libertarian theories of justice that place a higher value on rights than on the communitarian good, Sandel declares, have a powerful appeal. . . . Despite its appeal, however, this vision of freedom is flawed. . . . If we understand ourselves as free and independent selves, unbound by moral ties we haven’t chosen, we can’t make sense of a range of moral and political obligations that we commonly recognize, even prize . . . obligations of solidarity and loyalty, historic memory and religious faith.
Sandel’s course is exhilarating; more than exhilarating; exciting in its ability to persuade this student/reader, time and again, that the principle now being invoked—on this page, in this chapter—is the one to deliver the sufficiently inclusive guide to the making of a decent life. Yes, I found myself thinking, as one philosopher after another paraded his elegant thinking, this sounds good; then again, so does this; now this really does it.
Yet, with all the pleasure stimulating my reasoning powers, some persistent unease kept coming between me and the entire enterprise, which soon—from Aristotle to Rawls—began to seem rather more like a board game with the dice of recombinant moral consideration being rolled repeatedly, and repeatedly landing on one square or another of a grid of neatly idealized possibilities, with none of the moves adequately reflecting the distinctly un-aesthetic struggle over moral judgment that one has with life on the ground. Then I remembered that Sandel famously enjoins his students to argue with him, and so, I, as much an amateur at political philosophy as any undergraduate, accept the invitation to grapple with theory in the flesh as well as in the abstract.
As I grew older, I saw that the Golden Rule, while excellent in theory, was not workable. Transgression was alarmingly present.
Let’s go back to the Golden Rule. As I grew older, I saw—with a shock from which I don’t think I ever recovered—that this Rule, while excellent in theory, was not workable in practice. Transgression was alarmingly ever-present. People simply could not accord each other the “justice” of treating one another as they themselves wished to be treated. Let me revise that. Forget people. It was I who couldn’t help transgressing.
With all the good will in the world, I soon came to see that I myself was a swamp of fears, fantasies, and defenses that caused me to forfeit the integrity needed to act with Golden Rule fairness toward those around me. My temper was ungovernable; an aggravated sense of insecurity caused me, in exchange after exchange, relationship after relationship, year after year, to do exactly what the Rule said it was impermissible to do: I scorned and humiliated, I challenged and confronted, dismissed and discounted; suffered when I acted badly, but could not bring myself under control. The source of the transgression lay deep in the wounded unconscious: it commanded me.
I loved many people in the abstract—felt for them, sympathized with them, romanticized them—but I could not give them the only thing that mattered: what Kant called “respect,” the one basic recognition required to bypass that fatal sense of degradation. In short, the chaos within prevented me from acting as though others were as real to me as I was to myself, although in theory they were. And here we come to a crux of the matter.
It is this—the chaos within—that is hardly ever addressed in Justice; although it is this, precisely, that is responsible for the all-important gap between practice and theory. Within that gap lies life as we actually experience it, with peace-making reason eternally in thrall to the emotional conflict that steadily undermines our ability to accord each other the required respect of acting as though others are as real to us as we are to ourselves.
Now that I am thinking about all this, I am remembering that in the early 1970s, when the second wave of the woman’s movement began to gather steam in America, the crucial word at the center of my feeling intelligence was neither “equality” nor “justice”; it was always “real.” “Real” meant that I wanted only to be born into the same existential unhappiness that afflicts all who take their social and political reality for granted.
Suddenly, I was stunned—insulted!—by the realization that political history, from antiquity on, had withheld the recognition of that “reality” from whole classes of people, including women, and—as though I’d become the doctor in Chekhov’s Ward Six, the man who comprehended the horrors of imprisonment only when he himself was imprisoned—could only now grasp what that insult signified. It was the existential need of our souls to not put ourselves in the place of another; to make hierarchies that would include and exclude; declare this group fully human and that one not; as though a sense of one’s own reality depended on the lesser reality of another. And indeed. As Virginia Woolf asked, how could men dress up, speechify, go out and civilize the natives if they couldn’t come home and see themselves writ twice as large as life in the eyes of their adoring wives?
It seems to me that of all the philosophers we encounter in Justice, Rawls comes closest to understanding and taking into consideration the nature of our shared psychic disability; and he seeks to counter it with precisely those measures that might close the gap between practice and theory. But even Rawls cannot speak adequately to the fact that political history, from classical times on, reflects our fear not of one another but of ourselves, projected onto one another.
Inevitably, a tide of emotional bewilderment overcomes us when we are made to realize that no matter how sophisticated the theory gets, the mystery remains of how to safeguard the necessary sense of self-worth—every human being’s birthright—that we continually outrage, just by being ourselves. I am grateful to Justice: What’s The Right Thing To Do? for forcing me to think again about that which I once thought I would never stop thinking.
Monday, May 10, 2010
Me and Martha Nussbaum: Once More Without Feeling
Nussbaum: http://www.tnr.com/article/books-and-arts/stages-thought#comments
Me:
"...I have my doubts about the idea that there is a way of reading Shakespeare that involves "doing philosophy" as such. Critical emphasis, Northrop Frye said, should be bear wise proportion to the emphasis in the poem. So the second of Ms Nussbaum’s criteria makes sense to me as it sounds like a good description of good old textual criticism. But the first and third of her criteria have me scratching my head.
She does not want the plays to be mere springboards for philosophical discussion, or mere grist for argumentation, such that, once launched, the plays are left behind. But how does the philosopher discussing Shakespeare “really do philosophy” without either leaving the plays behind or without violating Frye’s dictum?
For example, the nice sampled discussion of the differences between the young, world-transcending love of Romeo and Juliet and the contrasting of the mature, of-this-world love of Antony and Cleopatra seems to owe everything to close, thoughtful and perceptive readings of those plays and little, if anything, to the discipline of philosophy...
And, so, the subject philosophers... read like literary critics, though interesting and perceptive ones to be sure. And I don’t see how it could be otherwise.
The third criterion seems made up of whole cloth. And if her first criterion is faulty, the third, which I read as a complement to the first, makes very little sense. Why *must* anyone care about the plays? But that cannot be Ms Nussbaum’s question. Her question is: why should philosophers in the way of doing philosophy care about the plays; which is to ask, what in the plays helps philosophers fill in gaps in the ordinary doing of philosophy such that they help fill out the philosophical project? She has not satisfactorily answered that question; nor has she demonstrated by the discussions of Shakespeare she reviews that the question can be answered...."
Me:
"...I have my doubts about the idea that there is a way of reading Shakespeare that involves "doing philosophy" as such. Critical emphasis, Northrop Frye said, should be bear wise proportion to the emphasis in the poem. So the second of Ms Nussbaum’s criteria makes sense to me as it sounds like a good description of good old textual criticism. But the first and third of her criteria have me scratching my head.
She does not want the plays to be mere springboards for philosophical discussion, or mere grist for argumentation, such that, once launched, the plays are left behind. But how does the philosopher discussing Shakespeare “really do philosophy” without either leaving the plays behind or without violating Frye’s dictum?
For example, the nice sampled discussion of the differences between the young, world-transcending love of Romeo and Juliet and the contrasting of the mature, of-this-world love of Antony and Cleopatra seems to owe everything to close, thoughtful and perceptive readings of those plays and little, if anything, to the discipline of philosophy...
And, so, the subject philosophers... read like literary critics, though interesting and perceptive ones to be sure. And I don’t see how it could be otherwise.
The third criterion seems made up of whole cloth. And if her first criterion is faulty, the third, which I read as a complement to the first, makes very little sense. Why *must* anyone care about the plays? But that cannot be Ms Nussbaum’s question. Her question is: why should philosophers in the way of doing philosophy care about the plays; which is to ask, what in the plays helps philosophers fill in gaps in the ordinary doing of philosophy such that they help fill out the philosophical project? She has not satisfactorily answered that question; nor has she demonstrated by the discussions of Shakespeare she reviews that the question can be answered...."
Sunday, May 9, 2010
Beinart on Elena Kagan as Nominee for SCOTUS
Peter Beinart
...President Obama is about to nominate someone for the Supreme Court. On the day he or she is unveiled, conservatives will announce that they are approaching the selection with an open mind. Ten minutes later they will declare, more in sadness than anger, that the nominee has the judicial philosophy of Chairman Mao and the temperament of Dennis Rodman. Ten minutes after that, liberals will rise en masse to defend the nominee as wise, brilliant and humane, a person who restores our faith in humankind. And the kabuki theater will continue like that all summer long.
I can’t blame my fellow liberals for playing along; if the other side fires, we have to fire back. But there’s one exception. If Solicitor General Elana Kagan gets the nod, conservatives will beat the hell out of her for opposing military recruitment on campus when she was dean of Harvard Law School. And liberals should concede the point; the conservatives will be right.
Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement.
“I abhor the military’s discriminatory recruitment policy,” wrote Kagan in 2003. It is “a profound wrong—a moral injustice of the first order.” So far, so good. Not allowing openly gay and lesbian Americans into the military is a grave moral injustice and it is a disgrace that so many Republicans defend the policy to this day. But the response that Kagan favored banning military recruiters from campus—was stupid and counterproductive. I think it showed bad judgment.
The United States military is not Procter and Gamble. It is not just another employer. It is the institution whose members risk their lives to protect the country. You can disagree with the policies of the American military; you can even hate them, but you can’t alienate yourself from the institution without in a certain sense alienating yourself from the country. Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement.
• Linda Hirshman: Sexual Orientation and the Supreme CourtI doubt that’s how Kagan or her fellow administrators meant it. But it is certainly the way it has been received. It’s no coincidence that most Ivy League schools banned ROTC in the late 1960s, at exactly the moment liberalism was committing hara-kiri. The perception that liberals are unpatriotic stems from that moment in time and from actions just like that. And while the charge is and always has been unfair, banning recruiters from campus does suggest a somewhat impoverished understanding of patriotism. Yes, dissent is patriotic, as liberals love to declaim, but assent is an important part of patriotism too. Saying you show your love for your country only through criticism is like saying you show your love for your spouse only through criticism. It isn’t likely to go over well.
And it hasn’t. Banning the military from elite campuses hasn’t only helped generations of Nixons, Atwaters and Roves beat Democrats at the polls; it has also helped create a military that stands firmly on the red side of the culture war. As Michael Neiberg shows in his 2001 book, Making Citizen-Soldiers, the Ivy League administrators of the early 20th Century believed ROTC served a fundamentally liberal purpose. It infused the military with the spirit of intellectual openness found in the academy and thus “prevent[ed] the creation” of a narrow, isolated “military caste.” Today, thanks to administrators like Kagan, however, the military recruits mostly on the campuses of the South and West, and thus, the officer corps has become overwhelmingly Republican. The best way for Ivy League liberals to remedy anti-gay discrimination in the military—and to infuse it with liberal values more generally—would be to encourage the military to recruit from among their ranks, as those administrators urged a century ago. Instead, actions like Kagan’s have helped make the Ivy League and the military separate and sometimes hostile worlds, and both have suffered as a result.
Were Kagan to be passed over for the Supreme Court because of her views on military recruitment, many liberals would likely consider it unfair. But it would make ambitious Ivy League administrators think twice because succumbing to the left-wing mindlessness that sometimes prevails on campus. And it would further one of President Obama’s signature efforts: his bid to draw America’s almost half-century long culture war to a close. If that requires conceding that conservatives are right about something, so be it. I’m sure it won’t happen again anytime soon...
...President Obama is about to nominate someone for the Supreme Court. On the day he or she is unveiled, conservatives will announce that they are approaching the selection with an open mind. Ten minutes later they will declare, more in sadness than anger, that the nominee has the judicial philosophy of Chairman Mao and the temperament of Dennis Rodman. Ten minutes after that, liberals will rise en masse to defend the nominee as wise, brilliant and humane, a person who restores our faith in humankind. And the kabuki theater will continue like that all summer long.
I can’t blame my fellow liberals for playing along; if the other side fires, we have to fire back. But there’s one exception. If Solicitor General Elana Kagan gets the nod, conservatives will beat the hell out of her for opposing military recruitment on campus when she was dean of Harvard Law School. And liberals should concede the point; the conservatives will be right.
Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement.
“I abhor the military’s discriminatory recruitment policy,” wrote Kagan in 2003. It is “a profound wrong—a moral injustice of the first order.” So far, so good. Not allowing openly gay and lesbian Americans into the military is a grave moral injustice and it is a disgrace that so many Republicans defend the policy to this day. But the response that Kagan favored banning military recruiters from campus—was stupid and counterproductive. I think it showed bad judgment.
The United States military is not Procter and Gamble. It is not just another employer. It is the institution whose members risk their lives to protect the country. You can disagree with the policies of the American military; you can even hate them, but you can’t alienate yourself from the institution without in a certain sense alienating yourself from the country. Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement.
• Linda Hirshman: Sexual Orientation and the Supreme CourtI doubt that’s how Kagan or her fellow administrators meant it. But it is certainly the way it has been received. It’s no coincidence that most Ivy League schools banned ROTC in the late 1960s, at exactly the moment liberalism was committing hara-kiri. The perception that liberals are unpatriotic stems from that moment in time and from actions just like that. And while the charge is and always has been unfair, banning recruiters from campus does suggest a somewhat impoverished understanding of patriotism. Yes, dissent is patriotic, as liberals love to declaim, but assent is an important part of patriotism too. Saying you show your love for your country only through criticism is like saying you show your love for your spouse only through criticism. It isn’t likely to go over well.
And it hasn’t. Banning the military from elite campuses hasn’t only helped generations of Nixons, Atwaters and Roves beat Democrats at the polls; it has also helped create a military that stands firmly on the red side of the culture war. As Michael Neiberg shows in his 2001 book, Making Citizen-Soldiers, the Ivy League administrators of the early 20th Century believed ROTC served a fundamentally liberal purpose. It infused the military with the spirit of intellectual openness found in the academy and thus “prevent[ed] the creation” of a narrow, isolated “military caste.” Today, thanks to administrators like Kagan, however, the military recruits mostly on the campuses of the South and West, and thus, the officer corps has become overwhelmingly Republican. The best way for Ivy League liberals to remedy anti-gay discrimination in the military—and to infuse it with liberal values more generally—would be to encourage the military to recruit from among their ranks, as those administrators urged a century ago. Instead, actions like Kagan’s have helped make the Ivy League and the military separate and sometimes hostile worlds, and both have suffered as a result.
Were Kagan to be passed over for the Supreme Court because of her views on military recruitment, many liberals would likely consider it unfair. But it would make ambitious Ivy League administrators think twice because succumbing to the left-wing mindlessness that sometimes prevails on campus. And it would further one of President Obama’s signature efforts: his bid to draw America’s almost half-century long culture war to a close. If that requires conceding that conservatives are right about something, so be it. I’m sure it won’t happen again anytime soon...
Saturday, May 8, 2010
So a Question is:
How do we judge the grounds for rights if there are no first principles to guide that search. Is what's right, what's a right, merely a contingent historical judgment grounded on nothing but consensus about the meaning of experience? If no there are no standards to guide these judgments, the consequence for the meaning of rights, moral and legal, is sheer relativism without a basis for preferring one sovereign consensus over another at any given time. But if there are first principles--the value of life, equality, the rule of law, for example--where do they come from? It strikes me that Dershowitz erases the very ground his argument stands on--judging wrongs and deriving rights from them--by denying the existence of the very principles he wants recourse to as standards for making judgments about wrongs.
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.
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.
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.
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.
Sunday, May 2, 2010
Obama and the Middle East: One Man's Review
Middle East: Much Worse Off Than a Year Ago
Posted: 01 May 2010 10:40 AM PDT
By Barry Rubin
Let’s take a deep breath, clear our heads of any ideological or partisan preconceptions, and then ask a simple question: How has the Middle East changed in the last year?
If one approaches this in a fair-minded, calm, and honest manner, the answers are quite shocking.
Let’s start with Iran. While some companies and banks have been discouraged from doing business with Iran, the sanctions or barriers to Tehran are almost the same as they were a year ago. That means that Iran has moved one year closer to obtaining nuclear weapons without serious hindrance. This is not good. No blather about conferences, plans, meetings, speeches, and efforts should conceal this fact.
The Obama Administration's effort to engage Iran failed. Then it missed repeated self-set deadlines for imposing sanctions. The engagement strategy was supposed to produce strong international support for sanctions--including from Russia and China--but that plan also failed. Now, at best, some kind of sanctions cannot be expected until the second half of the year.
What about the keystone of Iranian strategy, its alliance with Syria? Despite much Western talk about pulling Syria away from Iran—which isn’t going to happen—the relationship is closer than ever. This is not good. No blather about conferences, plans, meetings, speeches, and efforts should conceal this fact.
Lebanon? It is more in the grip of Iran, Syria, and Hizballah than a year ago. The Lebanese moderates have retreated and some have changed to a neutral position, because they know that the West will not back them up. Lebanon’s president is ready to align with the Iran-Syria access. Walid Jumblatt, the lion of the opposition, has made his peace with the Syrians, as has Said Hariri, despite the fact that Damascus was responsible for killing both their fathers. Hizballah, says the U.S. secretary of defense, has more missiles than most industrialized country though the UN promised to block these supplies back in 2006. This is not good either. No blather….
Turkey? Both the Iranian and Syrian governments have bragged that Turkey is now their ally. The Turkish regime does military maneuvers with Syria and not Israel. Turkey’s government opposes any sanctions or pressure on Iran regarding nuclear weapons. Today, Turkey is no longer a reliable ally of the United States. This is not good either. No blather….
U.S.-Israel relations? For the moment, they are on a better footing but they have gone through several crises since the Obama Administration took office for no gain whatsoever. On at least two occasions—settlement blocs and also the freeze on West Bank construction only—the administration broke previously made promises to Israel by itself or its predecessor. Moreover, a tone of distrust and hostility has set in on Washington’s side that has hardly ever existed in the entire history of Israel.
Palestinian Authority (PA): Despite extensive American efforts to prove how pro-Palestinian it is, the PA has yet to do anything for the United States, including breaking its promise not to take the lead in pushing the Goldstone Report or to hold direct negotiations with Israel. With U.S. policy unwilling to press the PA on concessions, the Obama Administration has given the PA a lot of support but obtained nothing in return. This is not good.
What about the Israel-Palestinian peace process? Well, the best hope at present is that it might return to indirect negotiations, which puts it roughly at the level of contacts prevailing back in 1991. Indeed, getting the two sides to talk—however distantly, however slowly—is going to be regarded by the Obama Administration as a huge victory meriting the opening of champagne. This is pretty pitiful.
How about U.S. relations with the relatively moderate Arab states, moderate compared to Syria that is? Despite the Cairo and Istanbul speeches of Obama, the outreach to Muslims, the hint that Islamists would be welcome to dialogue, the distancing from Israel, there is not one iota of improvement. Arab regimes will literally not do anything the United States wants. And rather than cheering Obama as a pro-Arab president they are frightened that he is a pro-radical forces or pro-Shia president, that is he favors their enemies and is weak in protecting them. This is also not good.
This brings us to the one great achievement claimed by the current U.S. government—high popularity in the Arabic-speaking world. Whatever numbers can be pulled out of polls, and they aren’t as good as many people think, any popularity Obama has is totally useless from the standpoint of U.S. interests.
Iraq? It is a relative bright spot, with the U.S. withdrawal under way. There are terrible problems with infighting in Iraq’s government, which might turn quite unstable. This is not the Obama government’s fault so much but what is worthy of blame is its cowardly refusal to back up Iraqi protests against Syria’s sponsorship of terrorism. At any rate, the calm that does exist is due in no small part to Tehran’s wanting to keep things quiet until the United States pulls out, then try to increase its own influence in the country. Not great.
Pakistan should be a big disappointment. True, the government is holding together. But despite the massive tidal wave of American aid the regime is only willing to defend itself, not exert a real effort to wipe out the Taliban and al-Qaida on the border. And of course Pakistan is shielding its own terrorist assets that have been used to commit horrendous murders in India. Not good.
Finally, Afghanistan where the president has made a public relations’-oriented decision: send in the troops in a pseudo-surge to show his apparent toughness, then pull them out to show his apparent dovishness. And with all good intentions the military and political leadership has set an impossible program of stabilizing Afghanistan and providing it with a good government. Meanwhile, bilateral relations have hit an all-time low. Not good.
Have I missed some bright spot or great achievement? I don’t think so. It’s a pitiful situation. What is the point of making this list? Not, despite what you might think, to bash Obama. The real problem is the refusal of policymakers to recognize just how bad things are and how negative has been the impact of their policy.
It is not too late to change course. But how can opinionmakers explain this to the administration when most of them don’t see how much has gone wrong? Waking up is the first step.
Posted: 01 May 2010 10:40 AM PDT
By Barry Rubin
Let’s take a deep breath, clear our heads of any ideological or partisan preconceptions, and then ask a simple question: How has the Middle East changed in the last year?
If one approaches this in a fair-minded, calm, and honest manner, the answers are quite shocking.
Let’s start with Iran. While some companies and banks have been discouraged from doing business with Iran, the sanctions or barriers to Tehran are almost the same as they were a year ago. That means that Iran has moved one year closer to obtaining nuclear weapons without serious hindrance. This is not good. No blather about conferences, plans, meetings, speeches, and efforts should conceal this fact.
The Obama Administration's effort to engage Iran failed. Then it missed repeated self-set deadlines for imposing sanctions. The engagement strategy was supposed to produce strong international support for sanctions--including from Russia and China--but that plan also failed. Now, at best, some kind of sanctions cannot be expected until the second half of the year.
What about the keystone of Iranian strategy, its alliance with Syria? Despite much Western talk about pulling Syria away from Iran—which isn’t going to happen—the relationship is closer than ever. This is not good. No blather about conferences, plans, meetings, speeches, and efforts should conceal this fact.
Lebanon? It is more in the grip of Iran, Syria, and Hizballah than a year ago. The Lebanese moderates have retreated and some have changed to a neutral position, because they know that the West will not back them up. Lebanon’s president is ready to align with the Iran-Syria access. Walid Jumblatt, the lion of the opposition, has made his peace with the Syrians, as has Said Hariri, despite the fact that Damascus was responsible for killing both their fathers. Hizballah, says the U.S. secretary of defense, has more missiles than most industrialized country though the UN promised to block these supplies back in 2006. This is not good either. No blather….
Turkey? Both the Iranian and Syrian governments have bragged that Turkey is now their ally. The Turkish regime does military maneuvers with Syria and not Israel. Turkey’s government opposes any sanctions or pressure on Iran regarding nuclear weapons. Today, Turkey is no longer a reliable ally of the United States. This is not good either. No blather….
U.S.-Israel relations? For the moment, they are on a better footing but they have gone through several crises since the Obama Administration took office for no gain whatsoever. On at least two occasions—settlement blocs and also the freeze on West Bank construction only—the administration broke previously made promises to Israel by itself or its predecessor. Moreover, a tone of distrust and hostility has set in on Washington’s side that has hardly ever existed in the entire history of Israel.
Palestinian Authority (PA): Despite extensive American efforts to prove how pro-Palestinian it is, the PA has yet to do anything for the United States, including breaking its promise not to take the lead in pushing the Goldstone Report or to hold direct negotiations with Israel. With U.S. policy unwilling to press the PA on concessions, the Obama Administration has given the PA a lot of support but obtained nothing in return. This is not good.
What about the Israel-Palestinian peace process? Well, the best hope at present is that it might return to indirect negotiations, which puts it roughly at the level of contacts prevailing back in 1991. Indeed, getting the two sides to talk—however distantly, however slowly—is going to be regarded by the Obama Administration as a huge victory meriting the opening of champagne. This is pretty pitiful.
How about U.S. relations with the relatively moderate Arab states, moderate compared to Syria that is? Despite the Cairo and Istanbul speeches of Obama, the outreach to Muslims, the hint that Islamists would be welcome to dialogue, the distancing from Israel, there is not one iota of improvement. Arab regimes will literally not do anything the United States wants. And rather than cheering Obama as a pro-Arab president they are frightened that he is a pro-radical forces or pro-Shia president, that is he favors their enemies and is weak in protecting them. This is also not good.
This brings us to the one great achievement claimed by the current U.S. government—high popularity in the Arabic-speaking world. Whatever numbers can be pulled out of polls, and they aren’t as good as many people think, any popularity Obama has is totally useless from the standpoint of U.S. interests.
Iraq? It is a relative bright spot, with the U.S. withdrawal under way. There are terrible problems with infighting in Iraq’s government, which might turn quite unstable. This is not the Obama government’s fault so much but what is worthy of blame is its cowardly refusal to back up Iraqi protests against Syria’s sponsorship of terrorism. At any rate, the calm that does exist is due in no small part to Tehran’s wanting to keep things quiet until the United States pulls out, then try to increase its own influence in the country. Not great.
Pakistan should be a big disappointment. True, the government is holding together. But despite the massive tidal wave of American aid the regime is only willing to defend itself, not exert a real effort to wipe out the Taliban and al-Qaida on the border. And of course Pakistan is shielding its own terrorist assets that have been used to commit horrendous murders in India. Not good.
Finally, Afghanistan where the president has made a public relations’-oriented decision: send in the troops in a pseudo-surge to show his apparent toughness, then pull them out to show his apparent dovishness. And with all good intentions the military and political leadership has set an impossible program of stabilizing Afghanistan and providing it with a good government. Meanwhile, bilateral relations have hit an all-time low. Not good.
Have I missed some bright spot or great achievement? I don’t think so. It’s a pitiful situation. What is the point of making this list? Not, despite what you might think, to bash Obama. The real problem is the refusal of policymakers to recognize just how bad things are and how negative has been the impact of their policy.
It is not too late to change course. But how can opinionmakers explain this to the administration when most of them don’t see how much has gone wrong? Waking up is the first step.
Subscribe to:
Posts (Atom)