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13 of 16 people found the following review helpful:
3.0 out of 5 stars
What's New?, March 22, 2005
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!)
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7 of 9 people found the following review helpful:
4.0 out of 5 stars
Excellent Read, but Liberal Bias Pervades, October 7, 2005
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.
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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
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.
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