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

Rating:
Summary: Accessible in style; two fatal flaws in substance
Review: Alan Dershowitz' Rights from Wrongs, an original approach to the legal theory of human rights, is written in Mr. 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? Mr. 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. Mr. 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, Mr. 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 Mr. Dershowitz' inductive methodology becomes apparent once it is applied to cases involving economic scarcity, where conflicting interests inherently lead to dispute. The point of Mr. 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, Mr. 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.

Mr. 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.