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Students of Human Rights
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arvindiyer Offline
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Alan Dershowitz : Rights from Wrongs

One useful aid in this study is the book "Rights from Wrongs : A Secular Theory of the Origins of Rights" by American legal luminary Alan Dershowitz. Here is a recent news item describing how Prof. Dershowitz turns the Dominique Strauss-Kahn controversy into a teachable moment. The message of the book is proclaimed in the dedication itself: This book is respectfully dedicated to the countless victims of terrible human wrongs - wrongs that have been the source of human rights. May these rights help to prevent the recurrence of these and other wrongs.
Some answers suggested by the Introduction of this book to questions raised above, are as follows:

1. What is the philosophical basis and historical origin of each of these human rights?

Quote:The first classic answer is that rights come from a source external to law itself, such as nature, God, human instinct, or some objective reality. This theory (or, more precisely, set of theories) is generally called natural law...The second classic answer is that rights are internal to law - that they are granted by the law itself. This is generally called positive law.

In this book I challenge the approach to rights taken by both classic natural law and classic legal positivism. I propose a third way - an experiential approach based on nurture rather than nature, This approach builds a theory of rights from the bottom up, not from the top down. It constructs this theory by examining the history of injustices, inducing certain experiential lessons, and advocating rights based on those lessons. I therefore come down squarely on the side of nurture, rather than nature, as the primary source of our rights. I would prefer the term "nurtural rights" over "natural rights" if it were more pleasing to hear.

2. What are the circumscriptions, exceptions and priorities that apply when one or more human rights conflict with each other?

Quote:I'm a moral relativist only in the sense that, explained later on in this book, although I believe strongly in certain rights and in certain moral principles, I recognize that in truly extraordinary situations these rights and principles may have to be balanced against the imperative of survival.

3. Since the declaration of the Universal Human Rights, how much have things changed for the better and is the incidence of violations decreasing?

Quote:Today there are powerful forces that pose grave dangers to rights that we have long taken for granted. At the same time, many defenders of rights insist that we accept the case for them essentially on faith. The debate has become polemical, with one side arguing that the new reality of global terrorism changes everything, while the other argues that it changes nothing. A more nuanced discussion is needed to strike the appropriate and ever-changing balance between security and liberty.

4. The declaration was drafted way back in 1948. If we were to draft another declaration today, what rights would we add?

Quote:A fundamental right should be harder to change than a mere legislative preference. The process of adaptation must be deliberate. The reasons justifying change should be weighty, institutional and long-term. But as the very human framers of our Constitution understood, there must be some mechanism - however cumbersome and difficult - to change positive-law rights. Hence the amending process.

The approach towards rights in the book, seems to be one of 'realization-focused comparison' rather than 'transcendental institutionalism' (as outlined here)

Quote:It is more realistic to try and build a theory of rights on the agreed-upon wrongs of the past that we want to avoid repeating, than to try to build a theory of rights on idealized conceptions of the perfect society about which we will never agree. Moreover, a theory of rights as an experiential reaction to wrongs is more empirical, more observable, and debatable, and less dependent on unproven faith, metaphor and myth, than theories premised on sources external to human experience.

Here is a video by the same author talking about a different book at Authors@Google, but about similar themes such as fundamental rights and the case for certain restrictions on free speech.


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Messages In This Thread
Students of Human Rights - arvindiyer - 10-02-2011, 09:34 PM
RE: Students of Human Rights - Lije - 11-02-2011, 01:43 AM
RE: Students of Human Rights - arvindiyer - 11-02-2011, 09:34 AM
Alan Dershowitz : Rights from Wrongs - arvindiyer - 21-04-2012 09:26 AM

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