An Examination of Rights and Morality Stimulates, Surprises

SHOUTING FIRE

Civil Liberties

in a Turbulent Age

By Alan M. Dershowitz

Little, Brown

550 pages; $26.95

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It’s no accident that the same word, “right,” can refer to an entitlement of the kind enumerated in the Bill of Rights yet also to the moral idea of rectitude, as in the admonition, “Do the right thing.” The first is a specific legal protection: a freedom or a privilege. The second is based on a far more general concept of morality and may involve the notion of duty.

Among the most active and outspoken champions of individual rights and civil liberties is Alan M. Dershowitz, Harvard professor, practicing appellate lawyer, noted media pundit and prolific author. Depending on one’s point of view on each of the many issues on which Dershowitz has pronounced his opinion, he can be brilliantly perspicacious or maddeningly wrongheaded.

The 54 essays in “Shouting Fire” address a vast range of issues, major and minor, from pornography, abortion and the death penalty to organ donation, police sting operations and the Senate confirmation process for judges. Whether you agree with his positions, Dershowitz’s keenly analytical mind and lucid direct prose style help clarify the nature of the subjects under discussion. Sometimes, he can even be surprising.

Despite his long-standing commitment to civil liberties and his prominent role in defending unpopular or controversial clients such as Claus von Bulow, O.J. Simpson and Mike Tyson, Dershowitz is not always a knee-jerk opponent of law and order. As the essays in this collection testify, he has given some serious thought to the important legal, constitutional, ethical and social questions raised by the continuing and inevitable conflict between the rights of the individual and the rights of the majority. In assessing the merits of these two claims, both essential to a democratic society, he comes down certainly more often on the side of the former, but also sometimes on the side of the latter.

Two chapters, written in the wake of the terrorist attacks of Sept. 11, urge the need for compromise rather than confrontation between government officials and civil libertarians: “[I]f we work together--if civil libertarians are brought into the tent in advance, rather than playing out their traditional role of criticizing from outside the tent only afterward--the beneficiaries will be all Americans who rightly demand both safety and freedom.” Dershowitz disagrees with the absolutist approach of some civil libertarians who view every security measure as a heinous assault on liberty. He believes that some of the more sophisticated security measures will not only be less intrusive but also more effective in zeroing in on the real terrorists. In an earlier chapter, Dershowitz examines the way that Israel has handled the problem of preventive detention.

Although the level of criticism directed against Israel might lead one to suppose that “no nation had ever taken away more liberties with less justification,” Dershowitz’s investigation of the situation there led him to the opposite conclusion: “that although Israel has suspended some important liberties during recent crises, it has retained far more than any other country faced with comparable dangers.” Indeed, comparing Israel’s preventive detention policy with that practiced against Japanese Americans during World War II, Dershowitz finds that Israel’s far less sweeping policy is much closer to what liberal critics of Roosevelt’s had proposed instead of the wholesale uprooting and internment of an entire ethnic group.

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As a liberal who holds many views that can certainly be classified as “politically correct,” Dershowitz is nonetheless disturbed by the phenomenon of “political correctness” on campuses: “I am appalled at the intolerance of many who share my substantive views,” he declares. “How many politically correct students are demanding--in the name of diversity--an increase in the number of evangelical Christians, National Rifle Association members and right-to-life advocates?... Let’s be honest: the demand for diversity is at least in part a cover for a political power grab by the left.... It has certainly given the political right--not known for its great tolerance of different ideas--a heyday.” Dershowitz finds an even more “insidious” kind of political correctness, however, in the fact that fewer and fewer people in American public life today “are prepared to disclose that they are atheists, agnostics, skeptics, or humanists.” Urging “closeted” disbelievers to come out of the closet, Dershowitz not only invokes the constitutional rights to freedom of religion, thought and speech, but also reminds us that being a skeptic or a nonbeliever does not mean that one is immoral any more than religious belief is always a guarantee of morality.

Dershowitz understands that law ought to be based on morals: A successful legal system cannot depend merely on coercion, he notes, but on people’s sense that in obeying just laws, they are doing the right thing.

Yet he is reluctant to base his idea of morality either on divine or natural law. Some of the most thought-provoking chapters in the book concern these basic philosophical questions. Are human rights grounded in divine law, natural law or any kind of higher authority, or are they merely whatever a given legal system has encoded? Although Dershowitz is skeptical of those who would base rights on religion or nature, he also regards the “legal positivist” approach as unsatisfying and tautological: If rights are merely what the law says they are, there would be no grounds for criticizing Nazi Germany’s human rights record.

Dershowitz calls his approach “experiential.” Throughout history, people’s experience of injustice helps them form an idea of what their rights should be. Or, as Dershowitz puts it, “Rights come from wrongs.” Here again, one may criticize him for being too quick to dismiss religion and nature (the former may help rein in the excesses of the latter; the latter may be “red in tooth and claw,” but even tigers and sharks don’t kill for kicks, let alone commit genocide!). It is also a strange omission that Dershowitz does not discuss the United Nations’ Universal Declaration of Human Rights. Still, this is a stimulating, crisply written, cogently argued book that will contribute a great deal to the ongoing discussion of these vital matters.