SHOUTING FIRE

Through a series of ever-vibrant essays—some original, some reprints—Harvard law professor and legal celebrity Dershowitz (Letters to a Young Lawyer, p. 1260, etc.) advances his sensible theory that experience filtered through democratic processes is the source of our notions of right and rights.

Where do our rights come from? Considering Dershowitz’s contentious, free-spirited personality, it comes as little surprise that natural law has little appeal to him, nor does the positivist strain of pure-human constructs. It is easy to puncture the sanctity of these approaches, and Dershowitz does just so. In their stead, he proposes the idea of “nurtural” rights: slow accretions of experience from previous injustices, rude lessons from the past, our collective run-ins with wrongs. There may be no consensus on what perfect justice is, but we are often able to find common ground on what is wrong: the Holocaust, the Crusades, slavery. Through this process of trial and error, and applying the tools of democratic politics, we have fashioned a body of fundamental rights—of speech, of and from religion, assembly, and such—and individual rights, particularly as they relate to limitations on the power of the majority. And each right is also a dynamic product, “informed by the gradual changes of history and experience,” both from legal and moral perspectives, and “one must constantly defend it, reconsider it, redefine it, and be prepared to change it.” Because, he states, that is what our law is about: devising processes for resolving conflicts in a pluralist democracy while making sure the majority does not tyrannize the minority, especially the minority of one. Dershowitz understands and accepts liberty's burden—the important rights extended to the unpopular, the marginalized, even the dangerous—and makes a convincing case that such a burden is worth the price.

Dershowitz turns the spotlight from himself and onto his ideas, which shine with decency and the kind of provocation that makes one want to think good and hard.