The Hindu Business Line : Human rights come from human wrongs

In his review of Alan Dershowitz's "Rights from Wrongs D. Murali shows us how the author explores the importance of rights in today's world. Though necessary, one must constantly prove that rights work even as human beings and governmen ts devise new ways to inflict grievous wrongs.

AWAITING death sentence in Pakistan, does Sarabjit Singh have a right to life? Is it wrong to grant women a right to reservation in Parliament and Legislatures? Can the Government burden private enterprise with social responsibilities, as a matter of right? Does a local community have the right to protect ground water from being exploited by a multinational? Do citizens have a right to information on Budget outcomes?

"In a world full of wrongs, rights have never been so important. We tend to take our rights for granted until they are endangered, and we appreciate them most when we are at risk of losing them," writes Alan Dershowitz in "Rights from Wrongs," from Basic Books (www.basicbooks.com). Ever wondered where our rights come from? Not from god, nature, logic or law alone, says the author. Our rights emerge bottom-up, from trial and error, from our collective experience of injustice, he suggests, and concludes, "human rights come from human wrongs."

Justice is an elusive concept, hard to define, and subject to conflicting interpretations, the author points out. In contrast, "injustice is immediate, intuitive, widely agreed upon, and very tangible." Therefore, according to him, it is far more realistic to keep aside "idealised conceptions of the perfect society" and instead attempt building "a theory of rights on the agreed-upon wrongs of the past that we want to avoid repeating". A `nurtural' approach, not natural, that puts to use the `unique human ability to learn from mistakes'; a dystopian view, this is, rather than a utopian theory, he'd call this.

In his persistent search for the source of rights, the author topples Aristotle's investigation of `the most desirable way of life' and says that it would be sufficient to agree upon `the least desirable ways' first and then seek to protect them against evils. "Such a minimalist conception of rights may not be ideal, but it may be the best we can ever hope for," he writes. Let us not pursue some `perfect' justice, he says, because seeking to achieve the perfect is the enemy of trying to prevent the very bad. Instead, "it is enough to recognise serious injustices that are down-to-earth, real, and generally produced by imperfect human beings".

The book focuses on the rights of individuals that the Government can't encroach into. But remember that rights dynamic, not static. To check abuses, rights may contract, as with "those suspected of complicity with terrorism"; and rights need to expand when there are new wrongs, says Dershowitz. A static approach to rights would be vice-like, he writes, giving the analogy of "long-term fixed mortgage that neither raises nor lowers your payments in response to changing interest rates".

Hasn't there been much violence in the name of god, as if the right to kill was a religious duty? "God's ambiguous words can be cited for any ideology," reasons the author. "Whether consciously or not, those who purport to speak in the name of god generally use natural rights as a cover for partisan, religious, or personal agendas," is a caveat to bear in mind.

Dershowitz cites an example: "In 1873, the US Supreme Court, in denying a woman the right to be admitted to the bar, relied on a divine concept of natural law: `God designed the sexes to occupy different spheres of action', and `It belonged to men to apply and execute the law'."

It is `in the nature of things' that women must stay home, the court had said then; and one can see parallels with what's now happening closer home!

The author points out a grim irony - on the one side George Bush claims that god `personally spoke to him after September 11, 2001' and also told him `to strike at al-Qaida', and on the other, Osama bin Laden too claims he was acting under divine directions when saying, "Hostility toward America is a religious duty, and we hope to be rewarded for it by god." Why drag god into a diverse democracy, pleads the author. "In our pluralistic society, all citizens should be entitled to participate in the conversation about rights without any religious litmus test," he insists, because rights are too important to be left only to theological discourse.

If not from the almighty, can we assert that rights are a product of nature? Nature is full of beauty and wonder, but it thrives on violence and predation, points out Dershowitz, to show that nature is morally neutral.

"Human nature is radical Muslims dancing in the streets at the sight of Americans jumping to their deaths from the Twin Towers - and other Muslims going to their mosques and praying for the survival of victims of terrorism.

Human nature is Hamas building schools and medical centres for Islamic children and Hamas blowing up Jewish children on the way to their schools."

If all that makes you confused about the nature of humans, the author explains that there is "the deeply ingrained human need for authority, control, domination, paternalism, and, indeed, tyranny".

Bitter it may sound, but it is not in the nature of most human beings to value the rights of others above their own immediate interests, notes Dershowitz, and justifies the need "to entrench certain basic rights, continuously advocate them, and never grow complacent about them."

We need rights to offset the natural instinct of humans, or most of them, to take what they can get, with little concern for the interests of others, particularly strangers, emphasises the author. Not stray humans but whole societies may be guilty of denying rights and indulging in wrongs, and the fruits are bitter, points out Dershowitz. "Experience has shown that societies that treat people unequally - that deny most of them any semblance of equality of opportunity - end up with dissatisfaction, disorder, and violence," he writes.

Part II of the book takes one on a tour of `challenges' such as `Is there always a right answer?' where the author refers to the `trolley track' dilemma: "You are a trolley conductor whose brakes have failed. You see a fork in the tracks ahead. If you turn right, your trolley will hit a group of children; if you turn left, you will hit a single old drunk; if you fail to choose, random forces will choose for you."

Don't look for one right answer, instructs Dershowitz, because `law, morality, and even truth are ongoing processes for resolving conflicts in a democracy' and to expect one true moral answer may `devalue our diversity'.

Another challenge reads, `Can rights produce wrongs?' Yes, indeed, they can! "It is certainly possible for human beings to misunderstand the lessons of experience or to fail to recognise wrongs," writes Dershowitz.

Again, there can be wrongs when rights are misused, or hijacked for narrow, temporary, partisan gain. "Rights do not guarantee the right outcome."

Thus, a world with rights is a world with risks, you'd learn, but a world without rights has greater risks.

Essential read is part III of the book, which deals with rights in specific controversies.

To enrich your stock of `vocabulary of rights' there's a list of rights and counter-rights, including: right to free speech vs right not to be offended; right to be well fed vs right of animals not to be eaten; right to life of dying person vs right to assisted suicide.

They go on... right to quote from and parody any written work vs copyright of author; right to know of sex offenders in neighbourhood vs right of privacy after serving sentence; right to smoke vs right not to be subjected to second-hand smoke; and right to genetic privacy vs right of insurer or employer to assess risks. Further on, the author raises questions such as whether there is a right to separate religion from governance, whether one has a right to emigrate and/or immigrate, and whether animals have rights.

A chapter titled "Is there a right to life?" gives life to abortion debate and rakes up the never-say-die topic of death penalty.

On the latter, proponents argue that execution of the guilty isn't murder, while abolitionists say that "any system of capital punishment will inevitably include some innocent defendants who were falsely convicted".

Is there a difference between executing `a mass murderer who shows no remorse' and `a rehabilitated situational murderer'?

Another chapter asks, `Is there a right not to be censored?'

Governments that begin by burning books end by burning people, cautions the author.

"A regime of governmental censorship often entails other evils, such as informers, searches, loyalty oaths, coercion, and torture — all of which are easier to hide in a regime of censorship... The road to injustice has often been paved by governmental control over information." That's essential information for ambitious politicians.

What can make for solemn reading is the penultimate chapter on whether dead people have rights in their organs — a topic that involves clash of values.

While one can make important decisions about the disposition of his body, there should be "the power of the state to compel that person to violate his religious, moral, or aesthetic principles," argues the author.

In conclusion, the book explores if rights have a future. The answer is yes, but we must constantly prove that rights work, even as human beings and governments come up with new ways to inflict grievous wrongs, as Dershowitz stresses.

"Rights are a process for achieving liberty and fairness rather than an end in themselves," he clarifies. The struggle for rights is never over even if you win it. "Because there will always be wrongs, there must always be rights."

Wrong not to read this `right' book!

Economics@TheHindu.co.in

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Human rights come from human wrongs