Rights From Wrongs: A Secular Theory of the Origin of Rights [Hardcover]

Alan M. Dershowitz (Author)

Book Description

ISBN-10: 0465017134 | ISBN-13: 978-0465017133 | Publication Date: November 2, 2004

This is a wholly new and compelling answer to one of the most persistent dilemmas in both law and moral philosophy: If rights are "natural"-if, in the words of the Declaration of Independence, it is "self-evident that all men are endowed...with certain inalienable rights"-where do these rights come from? Does natural law really exist outside the formal structure of humanly enacted law? On the other hand, if rights are nothing more than the product of human law, what argument is there for allowing the "rights" of a few people to outweigh the preferences of the majority?In this book, renowned legal scholar Alan Dershowitz offers a fresh resolution to this age-old dilemma: Rights, he argues, do not come from God, nature, logic, or law alone. They arise out of particular experiences with injustice. While justice is an elusive concept, hard to define and subject to conflicting interpretations, injustice is immediate, intuitive, widely agreed upon and very tangible.This is a timely book that will have an immediate impact on our political dialogue, from the intersection of religion and law to recent quandaries surrounding the right to privacy, voting rights, and the right to marry. More than that, it is a passionate case for the recognition of human rights in a rigorously secular framework.Rights from Wrongs will be the first book to propose a theory of rights that emerges not from some theory of perfect justice but from its opposite: from the bottom up, from trial and error, and from our collective experience of injustice.

Editorial Reviews

Amazon.com Review

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." These rights are as cherished today as when Thomas Jefferson enumerated them 231 years ago, but traditional faith isn't doing as well (witness Richard Dawkins, Sam Harris, and Christopher Hitchens). If God goes, do our rights go with him? Not according to Alan Dershowitz, who in Rights from Wrongs proposes the theory that they come not from God (theists have no monopoly on moral behavior), nature (whose first rule is selfishness), or the law itself (Dershowitz is no fan of legal positivism). Rather, he argues that, in a sense, two wrongs do make a right: that our rights are built from the ground up, in the manner of the common law: we "agree upon the least desirable ways of life and seek to protect against those evils." Dershowitz is likely to lose some readers, especially those who trend toward the right, in the book's second half, where he begins to apply his theory to issues including organ donation, separation of church and state, animal rights, and immigration. Regardless, Rights from Wrongs is a fine companion piece to the "atheist trilogy": well-argued, thought-provoking, and likely to appeal to those interested in politics and philosophy as well as religion and law. --Benjamin Lukoff

From Publishers Weekly

The double meaning in Dershowitz's title indicates just one of the insightful thoughts that mark the well-known Harvard law professor's latest work. In tracing the evolution of rights, he argues forcefully against any concept of natural rights deriving from religion and from law. Defining himself as a pragmatist, Dershowitz asserts that human rights derive from the world's experience with "wrongs," i.e., injustice. Only after seeing genocide, for example, did the notion develop that this was a violation of human rights. Dershowitz (Supreme Injustice) has a rare ability to develop complex ideas in readable prose. In the book's first half, he carefully examines the rationale for an experiential approach to rights; the second half applies this approach to some of today's hot-button issues. Dershowitz is often on the liberal side: for instance, he has little stomach for literal interpretations of the Constitution—what he calls the "dead constitution" approach. But he can surprise: he argues, for instance, that Justice Scalia's "dead constitution" approach led him to a firmer defense of individual rights than other justices in the recent Hamdi case. Whether conservative or liberal, absolutist or relativist, readers will find areas of disagreement, but most will concur that a talented and creative legal mind is at work.
Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved.

See all Editorial Reviews

Product Details

• Hardcover: 272 pages
• Publisher: Basic Books (November 2, 2004)
• Language: English
• ISBN-10: 0465017134
• ISBN-13: 978-0465017133
• Product Dimensions: 8.3 x 5.5 x 1.1 inches
• Shipping Weight: 12.8 ounces
• Average Customer Review: 3.4 out of 5 stars  See all reviews (11 customer reviews)
• Amazon Best Sellers Rank: #1,392,586 in Books (See Top 100 in Books)
  • #96 in Books > Law > Perspectives on Law > Natural Law

More About the Author

ALAN M. DERSHOWITZ is a Brooklyn native who has been called 'the nation's most peripatetic civil liberties lawyer' and one of its 'most distinguished defenders of individual rights,' 'the best-known criminal lawyer in the world,' 'the top lawyer of last resort,' and 'America's most public Jewish defender.' He is the Felix Frankfurter Professor of Law at Harvard Law School. Dershowitz, a graduate of Brooklyn College and Yale Law School, joined the Harvard Law School faculty at age 25 after clerking for Judge David Bazelon and Justice Arthur Goldberg. While he is known for defending clients such as Anatoly Sharansky, Claus von B'low, O.J. Simpson, Michael Milken and Mike Tyson, he continues to represent numerous indigent defendants and takes half of his cases pro bono. Dershowitz is the author of 20 works of fiction and non-fiction, including 6 bestsellers. His writing has been praised by Truman Capote, Saul Bellow, David Mamet, William Styron, Aharon Appelfeld, A.B. Yehoshua and Elie Wiesel. More than a million of his books have been sold worldwide, in numerous languages, and more than a million people have heard him lecture around the world. His most recent nonfiction titles are The Case For Peace: How the Arab-Israeli Conflict Can be Resolved (August 2005, Wiley); Rights From Wrongs: A Secular Theory of the Origins of Rights (November 2004, Basic Books), The Case for Israel (September 2003, Wiley), America Declares Independence, Why Terrorism Works, Shouting Fire, Letters to a Young Lawyer, Supreme Injustice, and The Genesis of Justice. His novels include The Advocate's Devil and Just Revenge. Dershowitz is also the author of The Vanishing American Jew, The Abuse Excuse, Reasonable Doubts, Chutzpah (a #1 bestseller), Reversal of Fortune (which was made into an Academy Award-winning film), Sexual McCarthyism and The Best Defense.

Customer Reviews

Most Helpful Customer Reviews

14 of 17 people found the following review helpful:

3.0 out of 5 stars What's New?, March 22, 2005

By 

Kevin Currie-Knight "Education Grad Student" (Newark, Delaware) - See all my reviews
(VINE VOICE)    (TOP 500 REVIEWER)   

This review is from: Rights From Wrongs: A Secular Theory of the Origin of Rights (Hardcover)

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!)

52 of 75 people found the following review helpful:

2.0 out of 5 stars Accessible in style; two fatal flaws in substance, November 4, 2004

By 

Jerry H. Tempelman "[e-mail]" (New York, NY) - See all my reviews
(REAL NAME)   

This review is from: Rights From Wrongs: A Secular Theory of the Origin of Rights (Hardcover)

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.

8 of 11 people found the following review helpful:

4.0 out of 5 stars Excellent Read, but Liberal Bias Pervades, October 7, 2005

By 

Brian from Baltimore (Baltimore, MD) - See all my reviews

This review is from: Rights From Wrongs: A Secular Theory of the Origin of Rights (Hardcover)

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.