Alan Dershowitz

Thinking in Public

May 23, 2011

(This is a rush transcript. This copy may not be in its final form and may be updated)

Mohler: This is “Thinking in Public”, a program dedicated to intelligent conversation about front line theological and cultural issues with the people who are shaping them. I’m Albert Mohler, your host, and President of The Southern Baptist Theological Seminary in Louisville, Kentucky.

Most of us have a list of persons with whom we’d like, at some point, to have a conversation. On that list, my list, is Professor Alan Dershowitz with the Harvard Law School. He is indeed the Felix Frankfurter professor of law at Harvard. He’s a graduate of Brooklyn College and the Yale Law School. Most of us know him as one of the most famous litigators in America. He just might be America’s most prominent attorney. But he’s also one of the nation’s most honest thinkers. That’s why I’m looking forward to a conversation with Professor Alan Dershowitz.

Alan Dershowitz has been for many years professor of law at the Harvard Law School. He is also America’s most famous attorney and one of America’s most prominent public intellectuals. It’s our honor today to have this conversation with Dr. Alan Dershowitz. Welcome to Thinking In Public.

Dershowitz: Thank you so much. I appreciate it.

Mohler: I have been reading your material for a long, long time. I think many Americans know you by your television appearances, and I think at least a couple points we’ve been on the same program if not at the same moment. But when I read you, I read an argument made in the most honest and straightforward way that I think really calls for evangelical Christians for instance to do some of our most responsible thinking. In your book Letters to a Young Lawyer you argue that obedience to the God of the bible can even be immoral. You say, “we should not be good because we fear divine punishment.” In fact you wrote this, “in deciding what a course of action is moral you should act as if there were no God. You should also act as if there was no threat of early punishment or reward. You should be a person of good character because it is right to be such a person.” It appears to me that you may be one of those rare individuals who’s actually not only arguing for a secular morality but willing to articulate how such a thing could happen.

Dershowitz: Well, certainly I do advocate a morality not based on fear of punishment in the life thereafter but morality based on doing the right thing doing right because it is the right thing. The great Jewish philosopher Maimonides said the opposite of the kind of deal that you often hear act because you’ll be rewarded or don’t act because of your punishment. Maimonides said that if you act out of just fear of punishment, it’s not truly moral. It’s just of course benefit calculus. And so you should do the right thing because it’s the right thing. And the story about acting as if there is no God actually comes from a Hasidic rabbi who was asked by his students once can you say something about atheists. And the rabbi paused for a moment and said yes there’s a moment in everyone’s life that they should act as if they were atheists, act as if there was no God, if you see a poor person on the street begging for bread don’t think God will save that person. Act as if you’re the only being in the universe that could save that person and give that person bread because it’s the right thing to do.

Mohler: Now when you speak about a secular morality, I just have to tell you I think most evangelical Christians are just going to shake their head and wonder how in the world can you have any stable notion of right and wrong on the basis of mere secular reason. You actually answer that in your own way.

Dershowtiz: Well I try to. It’s not perfect. I think we grope toward reason, and we grope toward morality. Those of us who believe that we don’t come with an instruction book, with a manual of how to do it, we have to figure out for ourselves what’s right and what’s wrong have a much more difficult time. I was brought up as an orthodox Jew. I went to Yeshiva Jewish elementary school, Yeshiva high school, my home was strictly orthodox. In many ways life was simple. There were a series of dos and dont’s. Some of them were moral in nature: don’t ever hurt anybody, always speak up to those who are without an opportunity to speak for themselves, some of them were just ritualistic—don’t eat anything that isn’t kosher, don’t drive your car on the Sabbath, but I was very rule bound and life was rather simple. When I became an adult, it became much more complicated for me. I didn’t see the rule book as guiding my life. I saw experiences guiding my life. I was a child of the Holocaust era. That had a profound influence on my judgment of humanity of my career decision to become a lawyer for the oppressed and the underdog. So for me, rights come not from divine commands but from experience, and Morality grows out of experience. And we struggle with it. It’s not simple, and we make mistakes. And I agree with the evangelicals who say that without the word of God, it’s hard to have absolutes. And we flow into the risk or morality coming from the Stalins, and the Hitlers, and the horrible people of the world the….today. That’s a risk endeavor, but I think the human experience on earth is in fact a risky endeavor and we should welcome the challenge that life without an instruction book gets us.

Mohler: There’s a lot of discussion out there about justice of course. Philosophers such as Dworkin, Michael Sandel, and others who have written bestselling books whether they’re read or not at least Americans know they’re important books that ought to be read. But I have to tell you that if I were going to try the experiment of doing what you suggested the rabbi had instructed and that is to try to think like an atheist, I’ll just have to tell you that I think I would find the most compelling moral argument to be that which you present in your book Rights from Wrongs: A Secular Theory of the Origins of Right. And you just spoke about the absence of absolutes, and I think you’re very honest in that book to suggest that we really do learn most from a secular perspective of what we need to know about the rights that have to be honored and preserved from the experience of horrible moral evil.

Dershowitz: Yeah and you know if you’re a believing person you believe the God put evil on the earth in order to teach us lessons. And I love the bible for example. I read the bible all the time. I read the Jewish bible. I read the Christian Bible. I learn a tremendous amount from it. I read it as a human being, as a secular person. I draw lessons from it and whoever the authors of the bible are, whether it was God himself or Moses, or in the case of the New Testament obviously those who wrote it, they were brilliant. To teach law for example, without reference to the Bible, is absurd. It would be like teaching law without reference to the United States Constitution. We need to know the Bible whether you’re a secular person or non-secular person. Whether you believe the Bible is the word of God or the word of inspired human beings. To live in the world today without reference to the Bible is to blink reality. I was watching somebody on television the other day the president of the Atheist Society and even he said he gave his daughter a Bible to read. Jefferson gave his nephew a Bible to read and said read it like you would read a history book. Read it critically. That’s the way I read the Bible, and I get an enormous amount out of it. And I do think that if God put evil on the earth for a reason he did it to teach us lessons about how to avoid the recurrence of evil. Now I can’t justify horrible evils like slavery, or oppression of women, or the Holocaust in any way as a means toward and end but the effect of those horrible evils have made us far more sensitive to the need to have rights and moral systems to prevent the recurrence of those evils.

Mohler: Now when you write about this method of trying to determine human rights and you look at the experience just of the 20th century, I just want to ask you straight forwardly do you think that human beings are making moral progress? Just over time?

Dershowitz: No I don’t. I think it’s been an up and down situation. I think the 20th century is perhaps the most complicated, convoluted century in the history of the world perhaps because I lived in it, but it had the worst evil. Hitler’s evil and Stalin’s evil are unmatched in the magnitude in the world…genocide in Cambodia it was the century of genocide. On the other hand, it was the century in which we really ended discrimination based on race and based on gender. We made tremendous scientific progress. I think a lot of people came back to religion in America is a very religious country far more than western Europe and that is really a 20th century phenomenon in many respects. So I think the 20th century has really proved that progress doesn’t operate in a linear way. That evolution, moral evolution, is a metaphor. We don’t evolve morally, we don’t get better morally as time passes. You know I think if we studied any particular century in great detail we would see ups and downs in the 19th century as well. It was the century of slavery it was the century of the end of slavery. It was the century in which America became great. It was the century in which America suffered greatly. So, human beings are not on a linear track to great morality. And those evolutionists who think that somehow evolution is purposefully leading us toward better human beings have been proved wrong by history.

Mohler: So would it be fair to say that you would oppose intellectually both the claim to theological certainty and the claim of liberal triumphalism?

Dershowitz: Absolutely. I am a skeptic. I am a skeptic of religion. I am a skeptic of science. I don’t think science has all the answers. I love to give the perfect example of how the Supreme Court in an 8-1 decision validated mandatory sterilization of people who were allegedly reproducing inferious stock. And the only dissenter was a religious Catholic who said I can’t abide this notion it just doesn’t fit with my teachings of the church. And he was the only dissenter and of course history has proved him 100% right. All the fancy scientists at Harvard who thought that eugenics was the future and didn’t anticipate how Hitler would use eugenics to produce the “superior race” religion triumphed over science in that respect. And for me as a skeptic of everything, I want to see religion serve as a check on science. I want to see science serve as a check on religion just like the legislation serves as a check on the executive. I want to see churches serve as checks on political figures. And I want to see political figures serve as checks on church leaders. So I want to live in a society in which there’s a process of checking in which there is never certainty about anything. And that we die as uncertain as we were born because nobody gave us all the answers. And for those who think the answers will come in the world to come, God bless them I hope they’re right. For those of us who want to live our lives completely here on earth because we have doubts about any world to come we too have to be skeptical and uncertain about everything. By the way, the greatest religious leaders have always been skeptics. Jesus was a great skeptic. He challenged the Pharisees. He challenged religious establishment. Luther challenged the establishment of the church. Even Mohammed challenged the status quo. So I think skepticism is a virtue not only among secularists but among deeply religious people as well.

Mohler: Now back in 2007 you wrote a book entitled Blasphemy: How the Religious Right is Hijacking our Declaration of Independence. Do you see a threat to the American civil order coming from conservative Christians?

Dershowitz: Well, I see it as part of our system of checks and balances again. I would not want to live in a completely secular society. I wouldn’t want to live within a society dominated by…pragmatism. Nor would I want to live in a society completely dominated by…imperatives, or religious imperatives, or secular imperatives. I want to see both. I want to see a challenge to each. What I worry about by some is that they see the Declaration of Independence and the Constitution which is called the Godless Constitution when it was enacted because it was the first Constitution not to refer to God. But I worry that they are trying to engage in a hegemony. They’re trying to say you can only be a true American if you believe and then some would say if you believe in a particular way and in a particular God, and a particular approach to God I fear that. I don’t think they’re winning. I think Americans would always be skeptical of breaking down the wall of separation between church and state. A wall built by the way to protect the church not the state. The formulator of that term is not Jefferson it was really Roger Williams and others around that period of time who talked about the garden and the wilderness. The garden being the church and the wilderness being secular society and government. And wanted a high wall created between the garden and the wilderness to make sure that the state doesn’t dominate the church the church doesn’t dominate the state which is what happened in Europe. The reason western Europe is called post-Christian society whenever I go to France, for example. I love to go to Notre Dame it’s one of the most glorious buildings in the world or…And I love to go while services are going on because I like to see Christian services or Jewish services I like to participate in it. When I go to Notre Dame, I see you know twenty-five Jews, a few American tourists, and almost no Christians in the church because the churches of Europe are empty. And one of the reasons is because for centuries the church and the state were merged. And when the French revolution came about for example the opposition to the state became the opposition to the church whereas in America that doesn’t happen. You can love your church and be critical of the state or love the state and be critical of the church keeping them separate because I think good for the church and good for the state and certainly good for America.

Mohler: When I read that book I have to tell you, I agreed in parts and disagreed in parts.

Dershowitz: Good that’s the way it should be.

Mohler: And the disagreement, yes, and well that’s part of the reason I enjoyed it and certainly look forward to this conversation. I think the part that I thought might be missing here is for instance why Peter Berger at Boston University talks about in terms of plausibility structures. It’s not just about what the founders did or didn’t believe but about the worldview that makes sense to them. And I think that’s where the Judeo-Christian heritage is, well, absent. It doesn’t lead the worldview that produced this American experiment.

Dershowitz: Well now I don’t disagree with that. I think that all the founders assumed the existence of God. And they assume the Judeo-Christian tradition. There was real disagreement about the Bible. Jefferson was not a fan of either the Old Testament, the Jewish bible or the Christian bible. He wrote his own bible as you know called the Jefferson Bible in which he loved Jesus, in which he simply left the words of Jesus, the elegant words of Jesus but kept out the miracles. He didn’t approve of those parts of the Bible. So he picked and chose what parts of the bible he liked. Washington generally was not a church goer, but he admired his wife for going to church. In fact, the statistics show that half the time Washington and Jefferson 80% of church goers in America were women. And the men, many of whom were frontiersmen, tended to stay away from church. Of course then we had the Great Awakening and many Americans went back to church. So we’ve had periods, ups and downs, of popularity in particular churches. It’s again a work in progress. And what I didn’t want was to see the Declaration of Independence interpreted, misinterpreted as a document based on the bible. It was based on religion, but in those days the debate was not atheist and agnostic. In fact the word agnostic hadn’t even been invented and there were no atheists basically in America. The issue was whether or not the Christian religion as reflected by the Christian Bible should become the basis for America. And then it was very, very significant disagreement about that.

Mohler: Well in your book the first portion of it, and that’s reflected also in your book America Declares Independence you really want to set the record straight and a lot of those issues are contentious. But I just want to tell you something that might surprise you somewhat or at least let you know there are some interesting arguments out there that might parallel yours from a different reason. Your concern, the conservative Christians want to claim these founding fathers because they want to claim their authority in order to establish a kind of historical precedence that would lead to current policy issues. I just want to tell you that I’m a Christian theologian. And I share many of your concerns but for a very different reason. I think these people fall far short of Christian orthodoxy and so I’m theologically offended to have them classified as Christians when in the case of someone like Jefferson he is profoundly not. So we’re in agreement there.

Dershowitz: That’s right I think that’s right. Jefferson you know he’s one of my heroes but he’s a very deeply flawed hero. He’s one of my heroes on issue of speech and on other civic issues but his personal life was abominable. I mean he’s the only founder who didn’t even free his slaves except for the ones he had personal and sexual relationships with. He didn’t free his slaves upon his death. He kept increasing his slaves and selling off some in order to buy wine and to increase his library. He was a hedonist who put the value of his pleasure over the freedom of his slaves. And the hypocrisy of writing all men are created equal on a desk that was built for him by a slave, you know some ways manifests the complexity. So you know if was a deeply religious Christian, I don’t think I would claim Thomas Jefferson or some of the others. Benjamin Franklin who lived a life of hedonism as well. So it’s a mixed picture as most pictures are and I reject those who would try to clean up the picture whether it’s Stalin who took people out of the photographs when he was re-writing history or some people today who try to turn Thomas Jefferson into a church going, Bible-reading Christian which he was not.

Mohler: Well all of that was really interesting. On the one hand I wonder if this conversation is a bit different in tone at least than many of Professor Dershowitz’s writings. But maybe that’s the way it is with just about all of us. There’s a context for our conversation and there’s a context for the kind of argument that is printed in a book. There’s the kind of argument that takes place in the give and take of a television news interview or talk show and there’s the kind of conversation that takes place with two people over a cup of coffee. The kind of conversation we just had is one that reveals some nuances as well as some very clear and distinct thinking about one of America’s most honest thinkers.

Professor Dershowitz I have to tell you one of the most fascinating things I’ve ever read by your pen is an essay that appeared in the Harvard Law Review entitled “Rights in a World Without God.” It has to do with the reviewer’s consideration of the 50th anniversary of something put forth by Lon Fuller entitled “The Speluncean Explorers.” You know sometimes the most important moral discussion take place in that kind of hypothetical situation. Can you play that out just a little bit for us?

Dershowitz: I think you’re the only person who ever read that obscure article in the Harvard Law Review. It was the 50th anniversary of a brilliant hypothetical case written by my colleague my late colleague Lon Fuller who was a great jurisprudence theorist. It was about people who were trapped in an underground cave and they had no way of getting out and they were going to die without food and the only way to save themselves was to choose among them and eat one of them until the rescuers managed to break them free. So the issue was, is it appropriate to kill and eat one innocent human being in order to save the lives of a multiple number of innocent human beings. And Lon Fuller set out a series of six or seven hypothetical arguments by judges for and against prosecuting these people after they did the terrible dead of killing and eating somebody. By the way it’s based on a real case on a series of real cases. And so I was asked along with a number of other contemporary scholars to fifty years later act as if we were the judges and write our own opinions, and so I decided to poll myself justice debunker and became the skeptic, the religious skeptic, and wrote an opinion from the point of view of somebody living 2000 years from now in the post-religious era. And it was fun to do. And it was an interesting exercise of how law would look without God as a foundational element of our legal system.

Mohler: Well it may surprise you to know I’ve actually assigned theology students to read that essay.

Dershowitz: Oh thank you so much. You really make a writer feel good.

Mohler: You sometimes have an influence you don’t know.

Dershowtiz: You sit alone and you never know if anyone is going to read what you’re going to write and then you find out it’s been assigned. That’s fantastic. If you ever want me to do a little telephone interplay with your students to discuss it sometime when you’re teaching the class I would happy to do that.

Mohler: Well I guarantee you I’m going to take you up on that.

Dershowitz: Please. Yeah.

Mohler: Now that was done in a conversational kind of situation in the way you wrote it. In a hypothetical in terms of a justice’s opinion set down, and we’ve just talked about it, but there’s not a clear and present danger that we really fear out of that right now. On the issue of terrorism it’s exactly the opposite.

Dershowitz: Exactly.

Mohler: And your understanding of terrorism is one of the most bracing and morally serious that I’ve ever encountered. And I think it would be very helpful if you go back to 1968 and answer the question that you ask why does terrorism work?

Dershowitz: Well, why terrorism works is because it’s rewarded. It’s rewarded all the time around us. We see that those who have engaged in terrorism, if it’s rational terrorism it generally produces results. They get their hostages back, they get governments to change their policies, Palestinians will probably get the state after having used terrorism extensively starting in the 1960’s and even before it goes back to 1929 whereas the Tibetans will not get a state. And the Curds probably won’t get a state. The Chechens probably won’t get a state. But the Palestinians will and largely because they brought their situation to the attention of the world through terrorism. Now the kind of terrorism that doesn’t work is Osama bin Laden’s terrorism because it was purposeless. He didn’t say I will blow you up unless you do “x”. He said I will blow you up because you’re evil, and there’s nothing you can do to make yourself un-evil. You have to all become Muslims; otherwise I’m going to blow you up. That will never work because there is no ask and there’s no give. The only way to deal with terrorism like that is to stop it as the United States successfully did in the killing of bin Laden. But we claim we don’t negotiate with terrorists, but we always do. And in the end the message to the terrorists is keep it up. It’s an effective tactic for bringing your plight to the attention of the world and you get what you want ultimately. So, I think we’ve approached the problem of terrorism all wrong.

Mohler: Now I want to trace that out a little bit because you especially indict Europe for being soft on this issue and for inciting terrorism and encouraging it. Back in 1968 the Palestinians learned that they could further their cause. And as you point out the moral calculus is whether they win or whether they die, they succeed.

Dershowitz: Yeah. And I think it has come back to haunt the Europeans because they are now victims of terrorism. The Spanish were among the worst in terms of giving into terrorism and of course they had the terrible event in their train station which killed so many. The British freed terrorists and they had their subway terrorism. The Russians have had terrorism. The only country that may have benefited perhaps at the moment, who knows what will happen, is Germany. Germany was among the worst in terms of giving into terrorism. They freed the terrorists who killed the Israeli athletes at the Olympics. They didn’t do much to stop that act of terrorism and they have not been victimized by terrorism for the most part although the 9/11 people planned their terrorist acts in Germany. And Germany was a central place for terrorist activities. So countries make deals with the devil and they make calculations. Italy has done the same. Virtually every country has made pacts with terrorists in order to selfishly protect themselves while exposing others to or even incentivizing terrorism against other countries. So again, I think the policy has not been the right policy, and I think it would be a wrong thing to reward Palestinians terrorism by giving them everything they want. And the more terrorism they engage in or the more threats of terrorism they engage in the more they get out of it. And even today threats against Americans were promoting freedom of speech. If we are critical of Islam, the fear is that we will be victims of terrorism. And a great country can’t submit to that kind of moral blackmail.

Mohler: So morally and legally or politically, what would you have America to do?

Dershowitz: Well I think America has to have strong stand against terrorism. I think the way we dealt with Osama bin Laden was absolutely correct. I actually would have preferred if he had been captured, put on trial, and shown to the world to be what he was much the way Achmed was put on trial by Israel rather than just killed. But he has been disabled and no longer can be the leader of Al-Qaida. I think you have to deal with terrorism by fair firm actions rather than by giving into the demands of the terrorist. Now there are going to be some extreme situations inevitably where moral considerations conflict and where some degree of compromise probably is in order. But for the most part the policy would be that we do not reward terrorism.

Mohler: Now in terms of the big moral issues you’ve called for an attempt, a brave attempt, an honest attempt to forge some kind of secular morality and a secular grounding of human rights. But that leads me to ask a couple of other questions that relate to the larger issue of secularization which you basically see as a good thing in terms of everything…

Dershowitz: No, no, no I’m not in favor of secularization let me be very clear about that. I don’t think a society that was a totally secular society would be a good thing. I think that secularism should not be prevented. I think it should not be demonized. I think very religious people have to learn to live with secularists just as secularists have to learn to live with religious people. I would not want to live in a country that was either/or. I experienced the Soviet Union during the bad times. I represented many dissidents that was a secular tyranny. I wouldn’t want that. And I saw that religion played a very important role in checking some of the abuses of the secularist society. So I don’t want to live in a secular society. I want to live in a society where secularism competes with religion.

Mohler: Well then just help me to understand then the positive contribution that you see religion making is separate from any theistic claim. Is it a mode of moral reasoning? Is it a community of moral meaning? Help me to understand how you think that religious communities and religious believers can play a helpful role then in checking the power of evil.

Dershowitz: Well in a lot of ways. First of all I don’t know what the truth is. I’m not an atheist. I am a skeptic. So the religious folks may have it right. We may have it wrong. I would love to wake up after I died and be greeted by a God who said to me, gee you were wrong. I admire your fortitude and your intellectual willingness to look at all sides of the issues, but in the end you were wrong. Nothing could make me happier than to find out that I was wrong ,and it was an afterlife whether I benefitted or was hurt by it. I love the intellectual challenge of knowing I was wrong. So I think one thing is that religious folks give us a worldview that might be right in the end. I’m not there to say that it’s not. But it’s not. It should never be a worldview that is the exclusive one. Also modes of reasoning have traditionally grown out of religious thinking. Some of the greatest thinkers in the world have been religious obviously when you think of Aquinas and Martin Luther. Or when you think of Maimonides when you think of some of the greatest thinkers of the world they have…which is true at a time that theology was the queen of all sciences. I don’t think that you can give anyone a queenship or kingship today, but it’s very important to have a religious worldview competing with a secular worldview and challenging it at all terms.

Mohler: Now as a Christian theologian I’m very concerned about the fate of theism and of theistic claims and communities in a modern world, in modernity or post-modernity or whatever we’re going to call it. And thus when I picked up your book The Vanishing American Jew, I looked at it reading it as a Christian thinking about parallel challenges that we face. But you’re pretty honest in there about your concerns about the future of Judaism as a people. You speak especially about the United States but with larger international application as well.

Dershowitz: There’s no question about that, and I worry because you know Judaism is a little different than say Catholicism. Catholicism is a purely a religion. Judaism is a civilization, it’s a culture, it’s a nationality through Israel, it’s a way of life and I would hate to see that disappear because it’s contributed so much to the world in 4,000 years beginning with the bible and going through Einstein and so many scientists and so much. It would be a shame to see a world without Jews, without Jewish life. It would also be a terrible shame to see a world without Christianity, without Islam. And I would hope we never get to that position. But it worries me because I think Europe, post-Christian Europe, is also post-Jewish Europe in many ways. And I think Europe is poorer for its total abandonment of any interplay with religion. I mean in the United States this constant, even though I am secular I am constantly interacting with religion. I think about God all the time as a skeptic. In Europe it’s off the temple. It’s off the agenda. It’s not in people’s minds. And I think Europe’s poorer for it, and I think we see it in a lot of different ways. Whether it be French attitudes towards sex which have come up recently in prominent cases or a kind of agnosticism about life not only about religion but about virtue and values. And so I think the presence of a religious tradition in a country makes an important contribution to thinking hard about ultimate issues which are the most important issues to think about.

Mohler: Thinking hard about those kind of issues leads me to a questions that’s drawn not so much from the kind of academic discussion or even the context of litigation but rather international relations. President Barak Obama recently set forth his plan for the achievement of a stable Middle East peace, and in it, he for instance called for Israel to return to the 1967 boundaries to use the language which the president employed. I know as a friend of Israel you have to have a strong opinion about that.

Dershowitz: I do. The ‘67 borders were invitations to war. And of course they produced one war after the other. And why you would return to artificial borders that make Israel vulnerable to attack would make the Ben Gurion airport three miles away from Palestinian rockets. And make Israel have only nine miles in width at its narrowest point. Nobody seriously is considering returning to the ’67 borders. Now the president did say with land swaps but you shouldn’t need land swaps for Israel to preserve the Western wall, the holiest point of Judaism. The Jewish quarter of Jerusalem which has been continuously in Jewish hands since 3,000 years ago. The access route to the Hebrew University and Hadassah Hospital those are a part of Israel even thought they were captured in a defense of war, captured back in a defense of war in ’67 when it comes to some of the settlements, yeah land swaps make sense, but the Palestinians gave up something in return and they have to give up their alleged right of return. Bringing back, bringing 4 million great-grandchildren, nephews, nieces of people who left as a result of the war started by the Arab states in 1947, 48, and 49. So I thought it was one sided presentation. I thought it also made it harder for the Palestinians to negotiate. President Obama basically gave the Palestinians what they wanted namely return to ’67 borders without requiring the Palestinians to give up what they need to give up and that is the right of return. They have to recognize Israel as the nation state of the Jewish people. They have to renounce violence do all of those things and you can’t have unilateral peace. Israel tried that with Gaza, and it didn’t work. They just gave the Gaza up and 10,000 Jews had to leave Gaza. What did they get in return? 10,000 rockets. Most recently an anti-tank missile aimed at a school bus that had forty-six students in it. Fortunately they were discharged minutes before and only one student was killed—only one student. My God I can’t even say that, one young person was killed because the Palestinian Hamas aimed rockets deliberately to maximize the killing of school children. And they justify it to this day. So you can’t make peace with Hamas. Hamas is the kind of terrorist organization that has to be dealt with the way the United States dealt with Al-Qaida and Osama bin Laden. But when Israel dealt with Hamas that way and targeted for assassination its military leaders, it was criticized by many around the world to praise the United States when it did the same thing. So we see the double standard is alive and well and used against the Jewish state very often throughout the world.

Mohler: Now how does that play out in the modern American University. I wanted to speak about Europe, but one of the things you have been very brave to address is the lack of free speech, is the lack of respect for a pluralism of ideas and frankly you’ve indicted many of the leading educational institutions of this country with a very blatant anti- Semitism.

Dershowitz: Well, the University of California which has a significant number of Jewish students has not protected the free speech of Jewish kids who are pro-Israel. Most recently of course we know that the University of California at Irvine that Michael Oren who is a very moderate academic Israel ambassador to the United States was invited to speak at the university. And a group of Muslim students decided to shut him down. Decided to not allow him to speak and fortunately after many disruptions they were finally removed from the audience and he was allowed to continue his speech. But when the prosecutor decided to prosecute these people who were trying to censor a speaker many people came to the defense including the American Civil Liberties Union came to the defense of these censors. You know I’ve been an active member of the ACLU for nearly half a century; it’s the first time I remember the ACLU defending censorship and coming to the support of people whose goal was to prevent a speaker from speaking and to prevent audiences from listening. They never would have done this had the shoe been on the other foot. Had there been Jewish disrupters or evangelical Christians, disrupters trying to prevent a Hamas speaker from speaking on campus they never would have come to the defense of the censors they would have come to the defense of the speaker. But the ACLU made the terrible mistake of coming to the defense of the censors in this case.

Mohler: One final question I just have to ask you this, you are so well known as a litigator. And to mention litigation is to bring on the question of moral meaning. But I think many, many people just watching the way that the law works would want to ask you given your prominence not only as a professor but also in the courtroom. What is the obligation of a lawyer to the truth?

Dershowitz: Well it’s interesting. The lawyer’s obligation is to the process of truth finding. And the process of truth finding among the American legal system is adversarial. Through our experience we have learned that the best way to produce the ultimate truth is to have people assigned to represent different points of view. The same ways when the Catholic Church makes somebody a saint. They appoint a devil’s advocate in order to bring all the worst allegations you can imagine against this candidate for sainthood. The Sanhedrin, the Jewish court back in the…period when there was a unanimous decision to impose the death penalty, they wouldn’t impose it because they said if nobody spoke for the defendant all sides weren’t heard. So we made a commitment under our constitution that the best way to truth is to have defense attorneys vigorously defend their clients whether or not their client did it. As a lawyer I would never get up in front of a jury and say my client didn’t do it if I thought he did do it. But I would challenge the government’s evidence and say you have to think hard about whether or not the confession was improperly obtained. You have to think hard about whether or not the eye witness was able to see or whether or not the other witness was paid for his testimony. So truth is a process. And lawyers are committed to that process but they do it in a way that’s often misunderstood. Priests and ministers also are committed to truth but they can’t reveal what was told to them in confidence even if that would mean that the truth doesn’t come out. Because what we do is create processes and the processes sometimes require that an individual playing a particular role play that role vigorously in order to help the process that ultimately produces truth. So yes, we are committed to truth but we sometimes have to defend falsehood in order to promote a process of truth.

Mohler: If you were to speak to American evangelicals and say here is one thing that you’re simply not thinking about. You’re not looking at. You’re not taking into consideration and you should, what would that be?

Dershowitz: That would be that there are many Americans who are deeply, deeply moral and want to be moral but can’t find it in their hearts to believe in God or can’t find it in their hearts to believe in Christianity. Be generous to them. Understand that they too are searching for truth, an ultimate truth, don’t denigrate them, don’t insult them, don’t claim that you can’t have a morality without a God or without Christianity. Respect the rights of others to search for ultimate truths in their own way. I think we have a better society when we each tolerate the other. I would say the same thing about atheists. Don’t dehumanize religion or religious people they are searching for their truth from a different way from you. Honor them. They should honor you. I think that’s the American way.

Mohler: Professor Dershowitz it’s been an honor to have this conversation thank you for joining me today.

Dershowitz: Well thank you so much. It’s been a pleasure and an honor for me.

Mohler: Well that was about as wide ranging a conversation as two human beings can have moving from hypothetical cannibalism all the way to the latest events in the Middle East. Talking about issues of morality that might be debated in a more academic context and the very real and present danger of terrorism. That’s what makes a conversation like this so interesting.

It’s certainly true that we learn a great deal from people who agree with us. We often learn a great deal from those with whom we share a basic worldview. Our arguments are sharpened. Our understanding is deepened. Our interests are quickened when we read those that exhilarate us by agreement. But at times we might just learn even more keenly if more urgently when we encounter those with whom we disagree. It just might be also that our arguments are actually more sharp when they are rubbing up against those with whom we disagree. It just might be that when we are in a conversation with someone that comes from a very different worldview, we have to think a bit more actively and shall we say it? A bit more honestly than we might be tempted to do when we’re just talking to ourselves. I think all that’s in the background of my reflections about the conversation with Professor Alan Dershowitz. I’ll be very honest I do not share his confidence that there can be a genuine secular morality. I am reassured however by the fact that he is so serious and honest in his efforts to try to negotiate one, to create one, and to be honest about what kind of moral reasoning would be required to achieve such an understanding. I’m very thankful for the fact that he is very honest about suggesting that the best that can come out of this is a set of general moral understandings.

When he writes about human rights coming from the context of moral reasoning in his book Rights from Wrongs he’s very honest about the fact that it really doesn’t produce a system of moral absolutes but rather a set of moral principles that should be respected by virtually all people in virtually all settings. The danger is I think that there are circumstances in which people are very prone to act in ways that are deeply immoral if there is the absence of such absolutes and if there is, the forfeiting of even the possibility of knowing absolute truth in issues of morality or anything else. I find a conversation with Professor Alan Dershowitz to be bracing. Whether I’m reading his books or hearing his voice as in this conversation that we’ve just enjoyed.

When I read his books I find myself entering into a world in which a very honest mind is trying to think about the consequences of his basic presuppositions. But is also trying to deal with real world issues whether it be terrorism or the future of the state of Israel or what kind of liberties must be balanced over against the very real needs for security in the modern state. I find myself interested in the kind of hypothetical arguments that he entertains as a lawyer, and I find myself deeply interested in how he actually operates as not only a law professor but as a litigator given the fact that he has been involved in some of the most high profile cases in American jurisprudence. But when you look at these issues and take them one by one I think they all come back in many ways to one of the issues we discussed later in the conversation.

When I read his book The Vanishing American Jew, I was very much struck by his concern that low birth rates, and assimilation, and inter-marriage will likely mean the end of Jewishness as we’ve understood that at least in recent decades and centuries. I understand that here you have a Jewish man who declares himself to be basically a skeptic when it comes to the existence of God who is very concerned about the non-existence of Jews. One of the reasons I found that interesting because I think there are many Christians who are almost tempted to think in the same terms. Cultural Christianity is in many ways well reflected in the kind of argument that Professor Dershowitz there encounters and puts forth in his book The Vanishing American Jew. But I also note that if you are going to embrace that kind of worldview, if you’re going to see religious faith as basically something that adds a community of meaning and you’ll hear it very honestly as Professor Dershowitz said a check over against the kind of…reasoning that’s all that remains or perhaps you might say even the best that remains in a purely secular intellectual context. So I appreciate that. But I also have to come back to say that I share so much with Professor Dershowitz in terms of what I understand to be his passions. A passion for instance for his own people. A passion for the state of Israel when it comes to the fact that just moral reasoning in any sane context requires us to appreciate the fact that the existence of Israel is very crucial for the existence of the Jews as a people. Now there are many Christians who are going to tie that to specific Christian theological arguments. The case could be made that the most important argument there is simply the fact that the existence of the Jewish people should be a prime concern of Christians. And it’s hard to imagine how that could be treasured and be protected without the state of Israel. His warnings about the reality of terrorism include an intellectual honesty that just is missing in so many other conversations. This man is not a utopian. He’s not a secular utopian who points to the world as it might be and says we fall woefully short and if we only tried to improve ourselves morally we could reach this kind of moral triumphalism. No, he does seem to have a very keen understanding of the human propensity to evil. He’s willing to talk about the Nazi regime and the Soviet Union. He after all was a prime defender of many of the dissidents in the former Soviet Union.

But you know when I listen to Professor Dershowitz and I find myself having to think more keenly as a Christian theologian as I read this lawyer who writes across such a wide field of subjects and issues and disciplines I also find myself wondering if it just might be that the moral context of America right now which is I will argue vociferously largely the inheritance of the Judeo-Christian heritage. And on the part of those who did believe in God and whose theism was very central to their worldview and their understanding of human dignity and human rights, I wonder if that has created the context in which Professor Alan Dershowitz can make his fascinating arguments at the Harvard Law School and beyond. I fear and I say this not only as a matter of anxiety but as a matter of what I believe to be moral truth then in a purely secular society it would be virtually impossible for an Alan Dershowitz to make the arguments for a secular morality that he so bravely intends to put forth.

At the end of the day, I’m certainly not convinced about the possibility of an adequate secular morality. You know I honestly believe that it’s important as Professor Dershowitz pointed out that we be honest to say that that does mean that secular people are necessarily immoral. It doesn’t mean that secular people operating out of a secular worldview are incapable of serious moral reasoning nor even of often arriving at the right moral understanding. For that we should be very deeply thankful. But as Christians we have to step back and say you know we do have a theological understanding of that, a theological argument for that that goes back to the image of God and the fact that the human being in spite of any claims and pretentions to secularism continues to think with the knowledge we cannot not know. Professor Dershowitz makes me think more rigorously and more honestly as a Christian theologian. He makes me speak I think more honestly and carefully about the secular alternative. I’m quite certain that we did not convince each other to change our mind on an issue of such basic significance. But you know there is moral and intellectual gain and having a conversation that makes us think more carefully in order that we will think and speak more honestly and that’s the kind of conversation that’s worth having any day.

Thanks again to my guest Professor Alan Dershowitz for joining me today for Thinking In Public. Before signing off I want to invite you to the upcoming D3 Youth Conference being held on the campus of Southern Seminary this summer June 27-30. Designed to develop student’s understanding of leadership, worldview, and missions D3 will be a summer experience filled with learning and growing opportunities for high school students serious about following Christ. I’m excited to have Eric Bancroft and Army Major Jeff Struecker joining me to speak as well as musical guest Flame and the Hoffmans. For more information visit sbts.edu. Thank you for joining me today for Thinking In Public. Until next time, keep thinking. I’m Albert Mohler.