Rights from Wrongs

I spent the day, yesterday, preparing myself to read Alan Dershowitz's new book, Rights from Wrongs: A Secular Theory of the Origins of Rights. He wants to argue that human rights do not need to be transcendent, that is, they are not derived from natural law or nature's God. At the same time, he recognizes that having no external source of rights may create a problem for the concept of minority rights. If rights are simply an expression of societal will, then rights are conveyed always, and only, by the will of the majority.

Dershowitz proposes an experiential theory of rights. It seems to be very much like Justice Potter Stewart's approach to obscenity laws, "I can't define it [obscenity], but I know it when I see it." We cannot define rights a priori, but we recognize their violation when we see it. Human rights evolve through some sort of trial and error approach. Rights are not transcendent, but are a response to recognition of wrongs.

Again, I haven't yet read the book, so it is probably premature for me to even be writing this much, but I am eager to see how he handles this. I am eager to see who, in his scheme, is responsible for identifying these wrongs and rectifying them. If it is the popular will, then we're back to a majoritarianism that excludes minority rights. I suspect he will argue that it is the responsibility of judges, or an enlightened few, and we are left with the kind of thinking that gave us Lawrence v. Texas where cloistered judges respond to the latest thinking of the lawyers' guild, among whom Dershowitz and other Harvard and Yale law professors, his peers, take a lead.

How did I get myself ready to read this book? Very simply. I read the Declaration of Independence. "When in the course of human events, it becomes necessary for one people ... to assume the ... equal station to which the Laws of Nature and Nature's God entitle them" and "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."

The ignorance displayed by the media in ridiculing Bush's assertion that freedom is God's gift to man, an ignorance of our own Declaration of Independence, only reveals that they have already bought into Dershowitz's arguments, probably without even being aware of it.

As I get older, I become more convinced that God must be presupposed if knowledge, morality, and human rights have any validity. If we begin with ourselves, we end up with solepcism.