Customer Reviews

Rights from Wrongs: The Origins of Human Rights in the Experience of Injustice

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In Rights and Wrongs, legal scholar Alan Dershowitz delineates and argues for what he suggests is a new theory of rights. Having problems both with natural rights theory and with legal positivism, Dershowitz argues that rights are neither innate nor simple decrees by lawmakers; rather, human rights are invented by us and for us as checks against past human wrongs. That is, Dershowitz argues that rights are created (not discovered) in response to historc injustices in order to prevent their reoccurrence.

I find most of Dershowitz's argument convincing, particularly in regards to natural rights theories and their problems. First, he brings up the obvious epistemic difficultis. If natural rights exist, then where do they exist and how can we get at them? In the face of so much disagreement over what our natural rights are (each person generally supporting that conception which justifies her own political preferences), is there ANY reason to suggest that natural rights are anything but human-made 'oughts' masquerading as 'is' statements? Dershowit, through this and other arguments, presents a strong case that the answer is 'no.'

Then we go onto legal positivism. While Dershowitz is no friend to natural rights theory, he finds legal positivism to err towards the opposite extreme by taking the view that rights are nothing but the codified wiil of the legislators. There must, says Dershowitz, be something more exhalted about human rights than for them to be legislation as usual. While I understand Dershowitz's sympathies, I don't think his case here is very strong. Why? It has to do with what I think is Dershowitz's faulty charaterization of legal positivism. (His new theory turns out, I think, to be what logical positivism said all along.)

Dershowitz seems to think that if legal positivism is true, then this means that human rights are only the codified manifestation of the legislature's (or court's?) whim or say-so. Contra this, Dershowitz believes that while rights are human constructs, they have their roots in history, not on legislative whim. Of course, every legal positivist I know or have read would readily agree with this.

Positivist Justice Holmes first sentence of "Common Law" reads, "The life of the law has not been logic: it has been experience. The felt necessities..." Another famed positivist, Justice Hugo Black, waxed eloquent in his book, "Constitutional Faith" about the bill of rights' historical rationale. And would any legal positivst deny that the 13th and 14th amendents were created to remedy historic injustices, as opposed to being created merely by legislative whim?

Quite honestly, I think Dershowitz's idea of what positivism is is something of a strawman. In consequence, I think that the 'new' theory he defends is actually one that had already been espoused by such positivists as Holmes and Black. (The funny thing is that while I generally agree with Dershowitz's case, professors, etc., have always seen me as a legal positivist.)

But I did give the book 3 of 5 stars because I think that all in all it is a worthwhile read, particularly by those who are believers in the idea of natural rights. (It is also interesting to read a book in which Dershowitz praises the judicial methodology of none other than Antonin Scalia!)

Alan Dershowitz' Rights from Wrongs, an original approach to the legal theory of human rights, is written in professor Dershowitz' familiar clear and articulate style, which makes it accessible even to non-legal scholars. The book is an attempt to resolve a classic dilemma: are legal rights "natural", as suggested by the U.S. Declaration of Independence ("We hold these truths to be self-evident, that all men...are endowed...with certain unalienable Rights")? Or are they merely the outcome of humanly enacted legislation, in which case majority opinion overrides individual rights so that there are not really any "rights" per se? Professor Dershowitz instead suggests that the human rights we should recognize come from observed experiences of injustice.

Traditional legal philosophy, using a deductive method of reasoning, takes as its starting point general principles relating to justice, the role of government, and a conception of society, and from there reasons towards rights that should be recognized. Professor Dershowitz, on the other hand, applies inductive reasoning. He considers human experience and, based on what he deems to be injustices, argues for the recognition of certain rights.

As an example, consider the case of organ transplants. In the United States, human organs are typically not donated unless explicit consent has been provided by the donor. In Europe, on the other hand, donation of human organs occurs unless a potential donor has explicitly denied his or her consent. The outcome is that in the United States there is a scarcity of organs, and comparatively speaking more people die from a lack of organs than do in Europe. Thus, professor Dershowitz argues that there should be no presumptive right to take one's organs to the grave. Instead, the presumptive right should be that of receiving an organ transplant if medically required.

While this example may appear quite reasonable (utilitarian arguments often do), the flaw in professor Dershowitz' inductive methodology becomes apparent once it is applied to cases involving economic scarcity, where conflicting interests inherently lead to dispute. The point of professor Dershowitz' methodology is to use experience rather than abstract, general principles to help settle such dispute. But when parties to a concrete, specific conflict argue for certain rights, they will be inherently biased by their stake in the outcome of the conflict. And rights are supposed to reflect justice, not interests. Thus, professor Dershowitz' approach is not sufficient to settle such dispute. It appears we really do need general principles. The source of such principles, however articulated, should be the values of the members of a community. To be sure, there is no universal agreement on values, especially when they conflict--e.g. in the classic debate between liberty and equality--but debate at the level of abstract, general principles will be far less biased than at the level of specific, concrete cases.

Professor Dershowitz also fails to make a distinction between so-called positive and negative rights. Negative rights are essentially the common-law system of individual rights and duties, such as the right to not be murdered, the right to not have one's property stolen, the right to not be enslaved. It is generally not an issue of debate that the first role of government is the enforcement of these rights.

In contrast to negative rights are positive rights (also known as welfare rights), such as the right to basic provisions in life including food, clothing, shelter, a job, or, say, universal health insurance coverage. The main problem with positive rights is that a right for one person implies an obligation for another. We may say "a chicken in every pot," but saying so does not make it so: the chicken will have to be provided by someone.

Such mirror obligations are utterly reasonable in the case of negative rights, which mean that I have an obligation to not murder you, or to not steal from you or enslave you. But this is different with positive rights: just because I may think I have a right to food or to a job (a right that is presumably based on my need for such things), it does not follow that you therefore have an obligation to feed me or to employ me. You may wish to help me, for example by means of private charity, but my need does not constitute your legal obligation.

Thus, positive rights are essentially meaningless. And no legal theory about rights that fails to make this distinction, or that fails to reject the legitimacy of positive rights, can be considered a valid approach to the theory of rights.

Rights from Wrongs is an excellent read; it essentially expands on essays Dershowitz wrote in Shouting Fire. I was glad to get a more in-depth analysis on his theory on the origin of human rights.

The theory that human rights come from human wrongs is really not novel in that correcting social evils is the animus of most democratic public legislation; indeed, legislators, and others looking to discern legislative intent, strive first to identify the social evil that the legislation was, or is, intended to correct.

Dershowitz's liberal bias pervades this work, as he emphasizes the social evils that liberals hate, while discounting the social evils that conservatives hate, as if they weren't as compelling when, in truth, they are no less compelling (or perhaps even more compelling). For example, on the issue of abortion, Dershowitz sees the social evil of women being forced to get abortions in back alleys as the animus for the right to abortion, while discounting the equally compelling social evils than animate opposing abortion; i.e., cheapening life to the point of abetting infanticide, euthanasia, and other forms of murder, including genocide. (See the example of Nazi ethics as practiced in Europe.) Indeed, the "right to life" is no less born out of human wrongs than is the "right" to an abortion.

Similarly, on the issue of organ donation, Dershowitz sees the social evil of not having organs available for transplant as the rationale for a right to organ donation, while discounting the very real social evil of executing, murdering, and otherwise killing people prematurely in order to obtain high in demand organs by desperate customers willing to pay top dollar for them as the animus for avoiding such a right. (See, for example, practices by the Chinese government and other "organ dealers.") I especially take issue with Dershowitz's position that "[a]nyone who refuses to sign the box on the driver's license application, which constitutes consent to removal of organs after death, is either a coward, a fool, a knave, or a slave to superstition or religious fundamentalism." (210) I refuse to sign that box for none of those reasons: I refuse to sign, because I don't want someone to hasten my death on account of a customer willing to pay top dollar for my organs: I want physicians focused on saving my life, not on ending it for a profit! To prevent a hastening of death is my understanding of why Judaism, in particular, opposes organ donation, and not merely because the body should be interred whole. This is a fence erected around a very real social evil that Dershowitz would have us believe to be somewhat chimerical, and it is not chimerical at all.

Last but not least, Dershowitz would have an easier time if he would just concede God's existence. I have witnessed him go to every extreme to avoid conceding God's existence, and this book is no exception! To debate the existence of God is foolish, in my eyes, although I concede there is a continuing debate to be had over God's morality, since God (in the Judeo-Christian context) compels morality in a world which God Himself created as amoral. Morality is the challenge, but it is also a solution (the best solution?), to the evils of an amoral world.

The California Constitution begins with a statement that all rights arise from God. The Federal Constitution makes no
mention of God at all. The Declaration of Independence relies on a philosophy of natural rights...eg. the rights to life, liberty and happiness. Professor Dershowitz argues for a "theory of rights" that derive from a community's experience of harm or injustice. I would agree that he correctly determines the "source of rights", but, I think, different communities will have different perceptions of injustices as well as conflicting solutions. (I might add that human nature is imperfect and many societies use scapegoats to address a problem). So when the Germans were crippled by the peace terms with the Allied powers after the conclusion of World War I, what should the solution have been? Or in abortion cases, do we place emphasis on the right of the fetus to life or the right of the woman to choose? Therefore, there can be no universal system of rights, even though most societies punish murder, theft, and adultery.

Historically, there will also be an interrelationship between a community's religion and law, a determination of rights that
Dershowitz studiously avoids. For example, in many Moslem cultures, the Koran will influence the determination of rights - e.g. the rights belonging to someone who practices Islam versus, let's say, the rights of someone who worships idols.

Nevertheless, Professor Dershowitz forces us to think about these great issues and develop new rights or expand old ones if communities can minimize injustice. A worthy read.

I bought this book more after a passion for political philosophy than after an interest for politics proper or for jurisprudential considerations. And yes, the fame of the author had a role as well in my choice...

Nonetheless, I could not enjoy the essay.

I use the verb "enjoy", because this kind of essays are not just helpful, but they are positively "pleasant" given that they are able to open the reader's view to new landscapes and help the mind to work...

Unfortunately this book is too specific... and often I had an unpleasant impression of aridity and unconcern.

I made some guesses to explain the reason, and the most plausible is that the author wrote the essay after some specific university conference: under this hypothesis, you can understand why it is so specific and why it often seems to reply to other theories not explicitly presented.

As a reader I was more interested in the "secular theory" (to quote the Title) and in the philosophical debate about rights, duties and responsibility. So the first part of the essay (The Origin of Rights) was definitely the one I most desired to read. It was also the most deluding.

What I most resent from the author is the absence of a clear-cut definition of the word "right" and a dangerous relativism by which almost everything can be justified.

PART ONE, The Origins of Rights, is mostly a confutation of other theories, the "natural", the "divine" and the "legal" sources. In their place Dershovitz proposes a "nurtural" (that is a mix of experience and culture) source, based on a kind of experimental, cultural and semi-evolutionist approach.

In doing this he puts himself in the wider perspective of the American Pragmatism.

Can you confute a theory (or theories) about the origins of rights without trying to define what a right is?

Actually it is what happens here.

The author forgets to produce an explicit definition of right. This is the main weakness in the essay, because the lack of definition ends in endangering the whole structure of the reasoning. With no clear definition, a right can be anything and nothing.

Apparently for Dershowitz all rights are more or less similar and equal (are the right to welfare and constitutional rights the same?), since they bear the same birth by "nurture" and all are considered always open to further challenge by experience. No right is eternal.

PART TWO, "Some challenges to experience as a source of rights", deals more specifically with the author's proposal to use experience and culture (or "nurture" as he prefer to call it) as foundation for rights.

PART THREE is mostly focused on specific contemporary issues: the right to life, the right of speech, animal and environmental rights and, lastly, the future of rights in an age of global terror.

What can definition tell us about rights?

Well, first it can tell us something about the nature of rights and the many "families" of rights.

Not just first generation rights (constitutional rights), "second generation" (the rights to welfare) and lastly third generation (the environmental rights).

Not just negative rights (those limiting the action of Government, usually favored by neo-cons) vs. positive rights (the rights of citizens to receive welfare from the State, usually favored by Liberals).

But also the distinction - too often abused -between rights and duties.

And lastly the eventual link by rights, duties and morality.

Lacking a clear definition of right, the author resorts to a weak theory of "nurture", that is a kind of semi-evolutionary theory in which the relevant terms are experience and culture.

The main problems of this theory are three:

- the risk to confound philosophy and sociology, that is to find justification from history and culture and not from logic and principles (righs as a compensation for past wrongs)

- confusion between Philosophy and Science. Philosophy, be it Logics or Morality, is totally the result of the mind. To talk about a quasi-Darwinian evolution of rights is to miss completely the point...

- the risk not to be able to produce a definitive and unequivocal censure to historical mayor breaking of rights (as well as of moral laws), since justification of rights ends to be in the hands of the winning party (a disaster if the winning party is the wrongdoers'). This is a relevant issue since it opens the theory to the justification of every possible mischief (Nazi laws, Serbian ethnic cleansing,...). To be honest, Dershovitz sees the risk and tries to explain why it is not so... but sincerely I could not see any strong ground.

He seems to justify the situation of prisoners in Guantanamo and even the last resort to torture, basing his judgment on of the specific historical situation, relevant culture and ultimate success of these policies - but under these regards Stalin's policies can be easily justified as well, because "necessitated" by the political situation and the need of new revolutionary Russia to survive (yet I guess few of the victims of Soviet terror would willingly agree with this viewpoint).

The call for experience, even balanced by culture, ends often in the priority of means over -and sometimes to detriment to - ends: if I can fight terror efficiently by curbing rights, why not? But the role of rights is to be there as a fence to prevent easy shortcuts endangering individual guarantees.

Personally I believe that for some rights - specially constitutional or first generation rights - justification has to be found in an absolute prohibition expressed by common morality to harm or cause pain to others in absence of adequate reason. In the light of common morality no Hitler, Stalin, Milosevic can be excused. By the same token derives the consequence that these rights have to be guarded and kept non-negotiable, because not funded on experience but on the fundamental social contract (or social language, whatever) that keeps democracy alive: in this sense these rights must be considered - even if risking to be rhetorical - "sacred".

Every Fundamental Right that has not a strong justification - other that the accidental historical and cultural cases - can be easily forfeited as "un-democratic" or because of higher necessity.

Some chapters result completely redundant and out of place.

CHAPTER 12, Can rights cause injustice? Here a rather incongruous theory of the anti-democratic nature of rights is advanced! (but are not rights the building block of every democracy? Usually we associate lack of rights and lack of democracy) Rights are always in a certain sense "egoistic" since they do not look positively at sociability, but are mostly insurances against the embedded risks of sociality)

CHAPTER 13, Is the debate on the external sources of rights liberal or conservative? Out of place and too bland to be really relevant and interesting.

If you've been so patient to follow me so far and understand what I wrote, there can be a chance you share some of my interests.

I'd like also to recommend and list other books -specifically relevant to this theme - I had the chance to read in the past about the same argument, in the hope they could be of any use:

- Stephen Holmes & Cass R. Sunstein - "The cost of Rights. Why Liberty depends on Taxes" (1999). This is specific on this argument and is also up to now the best book I read on the subject.

- Amitai Etzioni - "Communitarism". It deals marginally with rights, specially in the opposition of right to duties. Very interesting essay, but I could not agree with the author, whose proposal ends to be the creation of sealed communities, united by common interests.

- Bernard Gert - "Morality. Its nature and Justification". In the second part it deals as well with rights with regard to moral laws and moral ideas. Highly interesting, but no easy read. A chapter is dedicated to the theme of Rights and Political Ideas.

- Bernard Gert - "Common Morality. Deciding what to do" - an abridgement of the former, it can be helpful in understanding that a strong moral justification - other than experience, culture or "nurture" - for rights can be found and defended.

You are truly welcome if you can suggest other readings or just share ideas and comments!

Thanks for reading.

Here Dershowitz embarks on a rather enlightening intellectual exercise in legal philosophy, but I don't think it will have too many practical applications. Dershowitz explores how "rights" are often misconstrued by the public, and their origins and foundations in law may not be as unalienable as we think. He refutes common conceptions about "natural rights" and "God-given rights" as being unsupported by evidence from practical law, philosophy, and history. Nature and religion can be considered human constructs, and perhaps it is time to look at rights as based on secular and humanist moral concerns, rather than try to convince ourselves that they are bestowed by a higher power. I am intrigued by this conception, given my philosophical leanings, and Dershowitz is reasonably convincing in his running contention that rights should not be based on unsupportable concepts from nature and religion, but should be based on real human experience. In short, Dershowitz believes that rights should be constructed to prevent the wrongs committed by humans through history, such as slavery and genocide. Unfortunately, this does not successfully translate into a fully rewarding read, given Dershowitz's diffuse writing style, professorial abstractions, and continuous personal opinions. One damaging example, among many, can be seen in Chapter 20 where Dershowitz offers his harsh opinion of people who don't wish to donate their organs. This book has some reasonably compelling arguments for the informed layperson. But given modern realities of law and politics, the only immediate result of this intellectual exercise will be some philosophical discussions among Dershowitz's network of law professors. [~doomsdayer520~]

I loved this book,not because I completely agree with Dershowitz theory(although generally I do),but because of how clear and understandable he writes for the non-scholar,such as me.

Dershowitz does a great job dismissing the simplistic and silly idea that rights come from God.Which god?The god of the bible?The god of the koran? If the God of the Bible is the source of our rights,then why did women have so few in biblical times?Why was slavery permitted?Why did religious minorities have no rights?If one worshipped any other god it was punishable by death.If a child was disrepectful of his parents he could be stoned to death.These things seem barbaric to us because we have seen through the lens of human experience that these things are unjust.Neither the bible,nor any other holy book ,is the source of our rights,but a codification of what an ancient people thought their rights should be,based upon their unique circumstances,their historical experiences,and the particular culture in which their lives and history developed.

The same can be said for the argument that our rights are "self-evident",that they come from "nature and nature's god"as stated in the Declaration of Independence.At that time slavery was legal,women had far fewer rights than they do today,native americans had few rights,as did those who owned little or no property.Apparantly many of the rights that we take for granted were not very self-evident only 230 years ago.

I highly recommend this book.It is well-written and an enjoyable read.

This high level book on legal philosophy attempts to discover and explain the origins and future development of human rights and civil liberties. Legal scholar, Harvard law professor and author Alan Dershowitz makes no attempt to tutor readers. He starts from an expert philosophical perspective, and only goes deeper as he seamlessly navigates through contemporary, historical and judicial examples to present his theory about the origins of rights. Dershowitz is a masterful, machete-wielding guide through a dense, challenging forest of ideas laced with tangled vines of legal ideology. We recommend his book to readers with prior knowledge of the progress of human rights and U.S. civil liberties, as well as social and legal philosophy. It is a notch thick for good cocktail party conversation or easy undergraduate debate. However, it exemplifies Dershowitz's vivid thought process and powerful command of social philosophy. Dershowitz and other civil libertarians feel constantly compelled to challenge any court rulings or majority-held opinions that even remotely hint of infringing on real or perceived personal rights. This book fully explains why.

Alan Dershowitz has formulated a new theory of rights, namely that they should be thought not of coming from God or nature, but from human experience. He makes a very convincing case and I highly recommend Rights from Wrongs. Dershowitz explores in detail other theories of rights and rejects them with powerful arguments and examples.

My only quibble with him is that in one foolish sentence he equates blocking abortion clinics with slavery and terrorism . Still, that's not enough to ruin an otherwise excellent book.

This is a book that should have been written at least 40 years ago. It contains nothing original, being a mere application of Popperian epistemology to the origin of rights. In a sense, the book amounts to a mere naturalization of law (not to be confused with natural law, which AD rejects).

While it is an excellent book, Dershowitz displays remarkable lack of tact and understanding in dealing with Dworking's arguments. I am waiting for Dworkin's response.

Cf. Karl R. Popper's Conjectures and Refutations and, to a lesser extent, The Logic of Scientific Discovery.