Security vs. Liberty

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Currently in the United States, the discussion over the relationship between public security and civil rights has reached new heights as the American government attempts to strike a new balance between protecting citizens against terrorism and protecting citizens against excessive government power. This discussion, however, raises the important questions about just what rights are and where they come from.

The nature and basis of rights is an important topic in legal and political philosophy; unfortunately, it isn't one discussed very much in the popular media. Perhaps this is due to the fact that such discussions tend towards being too arcane and dry for most people, but that may change a bit with the recent book "Shouting Fire" by Alan Dershowitz.

The discussion over the nature of rights usually falls into a debate between the advocates of some form of "natural law" and the advocates of some form of "legal positivism." According to the former, rights are creations of God or nature and are simply discovered by humans; according to the latter, rights are simply whatever is written by the legislators. Dershowitz rejects both views, although he comes much closer to the latter than the former.

Dershowitz rejects natural law because it only tends to reflect the biases and agendas of whomever is doing the interpreting rather than some eternal and pure moral system as proponents like to claim. In effect, "natural laws" and "natural rights" are always and only in the eye of the beholder, differing from one judge or scholar to another. Dershowitz also rejects legal positivism because it tends to be too arbitrary and fails to offer any framework for modifying rights based upon changing circumstances.

In their place, Dershowitz suggests a bottom-up approach based upon past experiences of wrongs and suffering:

[M]y theory of rights is really a theory of wrongs. It begins with what experience has shown to be absolute injustices: the Crusades, the Inquisition, slavery, the Stalinist starvation and purges, the Holocaust, the Cambodian slaughter, and other unquestionable abuses. It then asks whether the absences of certain rights contributed to these abuses. If so, that experience provides a powerful argument for why these rights should become entrenched. The bottom-up approach builds on the reality that there is far more consensus about what constitutes perfect injustice than about what constitutes perfect justice. If there can be agreement that certain rights are essential to reduce the chances of perfect injustice, that constitutes the beginning of a solid theory of rights.

There are quite a few advantages to Dershowitz's approach, not the least of which is that he acknowledges that it isn't perfect and cannot be static. Dershowitz does not pretend to have discovered any eternal truths, except perhaps for the fact that humans suffer, that such suffering is often caused by other humans, and that in the end it is up to humans to find a way to alleviate and prevent that suffering. The responsibility is ours and cannot be passed off on God, nature, or the law - the question is, what do we do with that responsibility?

Dershowitz leaves the solutions open, meaning that the debate will continue (and is in fact encouraged). Nevertheless, he does offer a framework for making that debate productive and substantive. Fortunately, he does not do so in a dry text as happens so often with books dealing with legal philosophy; instead, he provides a number of engaging and easy-to-read articles on specific issues of civil rights and government power. Many of the articles are taken from past works of his, while others were written after or even in response to the terrorist attacks of September 11, 2001.

Much of the discussion about Dershowitz's book will probably be clouded by misinterpretations over one of the last articles, a piece dealing with torture. People will recoil at the perception that Dershowitz is justifying and accepting the torture of terror suspects - and maybe he is. But he acknowledges the fact that torture already occurs, just in secret and dark corners were we don't see it so we can pretend that it doesn't happen. Banning torture doesn't eliminate it, not even in the United States; rather, it forces torture to continue in the dark.

Dershowitz's idea is to allow for the creation of "torture warrants" where the police, in an extreme emergency situation, may get permission from a judge to torture a suspect in order to obtain information (needing to learn the location of a bomb which will kill many people is used as a classic example of a situation where this might occur). On the one hand, this seems to give torture the kind of legal respectability it doesn't deserve; on the other hand, such warrants would only be an option where torture would probably be used anyway - but now, the practice is brought out in the open and someone (a judge) has to take responsibility either for issuing or rejecting the warrant.

Perhaps that isn't the best way to go. Perhaps the goal of forcing torture out into the open and forcing people to take responsibility for it doesn't quite justify giving torture the veneer of respectability. Perhaps some moral compromises just shouldn't be made, no matter what the pay off; nevertheless, such compromises should be discussed. It is an interesting option and it does merit some debate, which is after all the goal of Dershowitz's book: getting people to discuss difficult issues regarding human rights and public safety.