Homo sapiens are more used to living without the law than with the law.
Question: What forces have shaped humanity most?
Alan Dershowitz: We probably went through a longer period of time as Homo sapiens without law than with law. Law probably is a development of four or five thousand years, maybe earlier. We only have written records that go back to the earliest versions of the Bible.
Law is a very important way of controlling rage, passion, revenge, jealously; and law must reflect all of these emotions as well.
The law historically develops from experience. I wrote a book called “The Genesis of Justice” which dealt with the origins of biblical law. And the point I made is the book of Genesis doesn’t have law. There’s no law in Genesis. The law begins in Exodus; Mount Sinai, the rules of law.
And Genesis shows us how a world operates without law, and it’s a terrible world in which people do awful things to each other. The god character in the book Genesis has to destroy the whole world by the flood, and man has to try and recreate it from scratch.
We see human beings operating on the basis of instinct. Some good, some bad. The dysfunctional families of the Bible killing their enemies, sometime even preemptively.
And then we move toward the development of some kind of a common law, some understanding toward the end of the book of Genesis of what’s right and what’s wrong. And then eventually to codification in the book of Exodus with the Ten Commandments, and then the rules that follow in the Ten Commandments.
So law is essential to civilized society. Every tyrant understands that. What tyrants want are laws that they can impose on others but are not restrictive of themselves.
We in western culture say no one’s above the law, and everybody must be subject to the rule of law. It’s also a part of democratic accountability. The law has to be published, and visible, and accessible to all, and subject to challenge and change. And that’s what the rule of law is. And probably there’s no more important contribution to civilization and progress than the rule of law.
I don’t like the metaphors from science being used in the law. So I wouldn’t use the term evolution because evolution, as my friend Steve Gould proved over and over again, is random. It doesn’t have a goal. It’s dumb and brilliant at the same time, but it’s purposeless.
Whereas the human endeavor called law is purposeful. It’s designed by human beings. And what I think it tries to achieve is an appropriate balance. And I think balance is the essence of the rule of law and the democracy. There is no one perfect way.
We live in a world in which the church checks secularism. Secularism checks the church. The media checks the government. The government checks the media. All these checks and balances exist and try to create some kind of a tolerable balance.
The struggle for justice never stays won. The struggle for civilization never stays won. The struggle for liberty never stays won. It’s always a struggle.
The biblical insight of justice – justice shall you pursue – also suggests it’s not ecstatic. We’re never going to say, “Aha! We’ve achieved justice. Nirvana is here.” Never are we going to get perfect justice. We’d never get people agreeing on what perfect justice is. We can agree, perhaps, on what imperfect justice is over time. We decided that slavery, and discrimination based on race, religion, ethnicity, gender, sexual orientation – we’re still working on that one – is wrong. Genocide is wrong. These are perfect injustices.
That’s why in my book “Rights from Wrongs,” I build from the bottom up. I look at a consensus of what perfect injustice is and build rights on those.
Don’t try to do what Aristotle did, which is first decide what’s perfect justice and then build your system on that; because no 10 people will ever agree on what perfect justice would look like.
Recorded On: June 12, 2007