Arkes on Dershowitz

By Diogenes ( articles ) | Nov 10, 2005

Alan Dershowitz is an accomplished man of the law, but it would be hard to assemble a thicker compilation of mistakes about natural law than he has brought together in this slim book.

Hadley Arkes slices up Alan Dershowitz's hat into bite-size pieces and feeds it to him forkful by plastic forkful in this unsparing yet cheerful essay in the Claremont Review of Books. Himself Jewish, Arkes is unflinchingly pro-life and has a profound grasp of and regard for Catholic moral doctrine and, what is here pertinent, the natural law. Freed of the suspicion of obsequium religiosum that attends Catholics, Arkes is better positioned to defend natural law against its anti-religious adversaries. Among these is Harvard Law School's Alan Dershowitz, who claims in his book Rights from Wrongs "there are no divine laws of morality, merely human laws claiming the authority of God."

For Dershowitz these things are packed into a complete, repellent package: vast evils in the world have been carried out by those zealots who claim to know the truths disclosed by God. They claim to know absolute truths and to have a "monopoly" on the truth. They have produced religious wars and the Inquisition. Leaning on the Bible, they have defended slavery, denied the rights of homosexuals, and rejected even the right of a woman to control her body through abortion.

Rejecting natural law (of which, Arkes points out, he has crude and confused notions), Dershowitz plumps for moral relativism, fuzzily tricked out in a kind of utilitarian calculus. Arkes isn't about to let him get away with it:

This moment of crisis in the argument is the moment that brings forth Dershowitz's invention, or his contrivance, of a moral theory. He professes not to know things that are "right" in principle, but he will make his way to moral judgments (as indeed others of us do) by beginning with the things that are "wrong." And in gauging wrongs he will fall back on the principles of "utility": genocide might have been thought defensible in Germany, and slavery right in America, but experience has shown, he says, that societies that practice genocide or accept slavery produce miseries on a vast scale. But miseries for whom? By a utilitarian measure, the Germans could have found it quite beneficial to remove the Jews from the professions and to distribute their businesses and their wealth to deserving Aryans. Yes, the Jews were killed, but as their property was distributed, the assets were spread about the country and the incomes of other people were raised. The campaign against the Jews might well have made Germans, in the aggregate, a happier, more cohesive lot. If the matter were left solely to the people on the scene, who was to say that genocide did not meet a utilitarian standard? Of course the experience bore no utility for the six million Jews killed in the Holocaust, but why did they count? On what ground were they to be regarded as "persons" whose injuries mattered in the world? Would we be silently slipping in the assumption that the lives of all human beings count? That is, are we backing into that notion of "all men are created equal" -- that proposition that has, for Professor Dershowitz, no standing as a moral truth?

Yet if Dershowitz denies Germans the right to declare Jews "unpersons," then how does he award himself the right to deem unborn children not fully human? Arkes helps him connect the dots.

He acknowledges that there are certain hard cases involved in abortion, but he has made it clear that he regards the right to abortion as a fundamental right, marking an expansion of rights under the Constitution. In celebrating this right, he has had to join his allies in masking from view the destruction of 1.3-1.5 million unborn humans every year for the past 30 years. Those lives do not seem to register as victims or "lives" because, somehow, they just don't count. Dershowitz remarks, in one of his strangest passages, that fetuses move, feel pain and are evidently "'alive' -- at least at a certain point in their development." But if the organism in the womb were not "alive" and growing, an abortion would be no more indicated than a tonsillectomy. And even a professor of law should know that, in the teachings of embryology, the organism does not undergo a change of species. That organism in the womb cannot be anything other than alive and human, at every stage of its being.

Unintentionally, Dershowitz's unimaginative approach does us the service of presenting a pretty complete conspectus of liberal thinking on morality: this is how most career-conscious lawyers and judges reason about right and wrong. That makes Arkes's brief demolition all the more handy. Read it all.