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Alan Dershowitz is the Felix Frankfurter Professor of Law at the Harvard Law School. In addition to his teaching, Dershowitz is a prolific author who makes frequent media and public[…]

Everything needs a jurisprudence.

Question: What do you believe? 

Alan Dershowitz: I think if I had to summarize my worldview, I would say there are a lot of terrible injustices out there. Some of them are currently and voguishly [sic] the subject of all kinds of arguments and protests. But there are many out there that people just aren’t aware of.

And it’s my job to try to find injustices or areas of life and power – black holes which are not subject to the rule of law, and the rule of morality, and the rule of philosophy – and try to subject them to legal constraints.

Let me give you a contemporary example which is very, very controversial. So simply observing what’s going on in the Middle East, in Israel, in Palestine, in Iraq and Afghanistan, one clearly sees a new paradigm of asymmetrical warfare going on. Terrorists hide behind civilians; merge with civilians; operate out of civilian population centers and use those areas to attack the civilians of the democracies that are opposed to [them]. 

Hamaas fires rockets into downtown. Or Hezbollah fires rockets.  Or Iraqi terrorists fire rockets at American soldiers in Afghanistan.

It’s going to spread all over the world, and democracy has two choices. Either not to respond or to respond. And if they respond they will inevitably kill civilians on the other side. That’s part of the goal of the terrorists. They want the democracies to kill civilians. Even if it’s their own civilians because that creates a terrible world impression against them, which is part of the reason why Israel has been subject to so much criticism as the United States has been.

We need a new jurisprudence to deal with that phenomenon. The old jurisprudence doesn’t work. The old jurisprudence simply said you’re either a civilian or a combatant. If you’re wearing a funny hat with an insignia and a uniform you’re a combatant. If not, you’re a civilian. That dichotomy doesn’t work with terrorism.

So I’ve had to construct what I call a “Continuum of Civilianality”, which ranks people along a line. Obviously babies and old people, and others who have no influence on the aspect of terrorism, they’re totally civilians. People who allow their houses to be used to store weapons, people who allow themselves to be used as shields are closer on a Continuum of Civilianality to combatants.

It has to be made a war crime to use civilians as shields, and to fire rockets from behind civilians. And there has to be a rule of proportionality that allows democracy to respond even if inevitably is going to risk the lives of some civilians to save the lives of other civilians.

We right now don’t have a jurisprudence for that. We don’t have a jurisprudence for preemptive attack against a nuclear power threatening to attack others. Not eminently, but in a year or so.

I’m not suggesting that it should be permitted. I’m suggesting that we need a jurisprudence.

Article 15 and 51 of the UN Charter doesn’t deal with that. It says only that a country can respond to an armed attack with an armed attack. But if you’re waiting to have a chemical, biological, a nuclear weapon directed at your civilians, nobody reasonably can be expected to wait.

And so we need a jurisprudence to fill that black hole. And my life work is to try to find, construct, create at least the beginning of a jurisprudence so that nothing is outside of the rule of law. That’s my goal.

Nothing under the radar screen. Nothing left to discretion. Everything we do subject to the rule of law. That probably created the greatest controversy in my academic life. I looked around and I said, We’re torturing people. We use torture. I think that’s wrong. I’m personally opposed to torture, but we’re using it. So I said, “If we’re going to use it, we need a jurisprudence of torture.”

“Oh my god! A jurisprudence of torture? How can you say that? You’re a monster. You’re Torquemada.”

No. I’m trying to stop torture. And the way to stop torture is to say, “All right. If you think you have to use moderate forms of physical pressure in the extraordinary case of a ticking bomb terrorist who knows where a nuclear bomb is in the city of New York, all right. Create an exception for that. But limit it. Indicate.”

And people say, “No, no, no. We don’t want that. We’d rather have the President, or the Vice President, or some people on the ground do it on their own." Just don’t ask, don’t tell. A wink and a nod.

That’s not my way. My way is always to have the rule of law govern everything that we do, whether it be torture; whether it be execution; whether it be race-based affirmative action; whether it be censorship on the Internet.

Things that I oppose, I still want to have a jurisprudence. I oppose the death penalty, but can you image having a death penalty without a jurisprudence to constrain it?

Or take the problem of an airplane flying toward a building with lots of people in it. And we’re pretty sure the airplane has been high jacked but we’re not positive. Somebody has to make a decision to shoot down that airplane and kill the 300 people on it who might not be crashing it, who might be crashing it. We can’t just leave that to the person on the ground. We have to have an advanced jurisprudence to figure out when we can shoot that airplane down and when we can’t.

Everything needs a jurisprudence. That’s my mantra.

And if there’s ever been a contribution that I’ve made, it’s the contribution of creating a rule of law, creating a jurisprudence for everything we do, no exceptions.


Recorded On: June 12, 2007

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