The Right to Do Wrong: Morality and the Limits of Law

Mark Osiel

Book

The Right to Do Wrong

Morality and the Limits of Law

Mark Osiel

Language: English

Published/Copyright: 2019

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About this book

Common morality—in the form of shame, outrage, and stigma—has always been society’s first line of defense against ethical transgressions. Social mores crucially complement the law, Mark Osiel shows, sparing us from oppressive formal regulation.

Much of what we could do, we shouldn’t—and we don’t. We have a free-speech right to be offensive, but we know we will face outrage in response. We may declare bankruptcy, but not without stigma. Moral norms constantly demand more of us than the law requires, sustaining promises we can legally break and preventing disrespectful behavior the law allows.

Mark Osiel takes up this curious interplay between lenient law and restrictive morality, showing that law permits much wrongdoing because we assume that rights are paired with informal but enforceable duties. People will exercise their rights responsibly or else face social shaming. For the most part, this system has worked. Social order persists despite ample opportunity for reprehensible conduct, testifying to the decisive constraints common morality imposes on the way we exercise our legal prerogatives. The Right to Do Wrong collects vivid case studies and social scientific research to explore how resistance to the exercise of rights picks up where law leaves off and shapes the legal system in turn. Building on recent evidence that declining social trust leads to increasing reliance on law, Osiel contends that as social changes produce stronger assertions of individual rights, it becomes more difficult to depend on informal tempering of our unfettered freedoms.

Social norms can be indefensible, Osiel recognizes. But the alternative—more repressive law—is often far worse. This empirically informed study leaves little doubt that robust forms of common morality persist and are essential to the vitality of liberal societies.

Reviews

An understated, unexpected masterpiece.
-- Daniel Muñoz Criminal Law and Philosophy

Osiel argues that to better understand how law works, we need to pay more attention to this interaction between relatively lenient rights and a more stringent morality.
-- James Ryerson New York Times Book Review

Having studied political philosophy and its neighboring disciplines for quite a long time now, I find fewer and fewer books capable of bringing to my attention an unfamiliar question. The Right to Do Wrong is such a rare book. It succeeds with an admirable mixture of sociological imagination and lucid analysis to demonstrate that a huge number of our legal rights would lead to morally questionable behavior if not constrained by what Osiel calls ‘common morality.’ I highly recommend this path-breaking book to anyone interested in the intricate relationship between politics, law, and morality.
-- Axel Honneth, Goethe University

Mark Osiel's book offers the first comprehensive account of the idea of wrongful exercises of rights. The topic is crucial for understanding the right to freedom of expression, the right to freedom of religion, the right to privacy, and the rights of those who are charged with crimes, among others. The Right to Do Wrong will become essential reading for anyone interested in the theory and the practice of rights in general.
-- Frederick Schauer, author of The Force of Law

In this wide-ranging and deeply interdisciplinary book, Osiel turns his sharp analytical lens to fundamental problems of law and society. His approach is original and impressive, integrating theory, empirics, and everyday experience into a forceful argument.
-- Tom Ginsburg, University of Chicago Law School

Osiel updates and defends against recent critics the claim that an effective legal system depends on an infrastructure of ordinary morality. He challenges conceptions of legal rights that insist that their exercise is by definition not subject to public accountability. And he has interesting things to say about many specific controversies, including abortion, end-of-life care, and military actions that put civilians at risk. Osiel suggests plausibly that understanding such issues simultaneously in legal and moral terms reduces some of the tension they often generate in popular discussion.
-- William H. Simon, Columbia Law School

In The Right to Do Wrong, Mark Osiel addresses a classic problem of jurisprudence and social theory: the relation of legal commands to common morality and social mores. Does law simply enforce moral norms? Does it presuppose moral norms and non-legal sanctions, and merely supplement them? Does it sometimes weaken and erode them? Lucid and precise in analysis, rich in examples from sociology and history, this brilliant book revives and refreshes for our time Montesquieu's great treatise on laws, manners, and morals.
-- Robert W. Gordon, Stanford Law School

The right to do wrong is the foundation of any free society. Mark Osiel demonstrates that the implications of this turn on whether, and how frequently, actors use these rights. In a brilliant exposition of the connection—and disconnection—between morality and law, Osiel shows how legal thinking and sociological theorizing illuminate one another’s perspectives. This is a book that will change how both lawyers and sociologists understand law.
-- John Levi Martin, University of Chicago

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Frontmatter
i

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CONTENTS
vii

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Introduction: Defining the Puzzle
1

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1. Common Morality, Social Mores, and the Law
22

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2. A Sampling of Rights to Do Wrong
44

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3. Three Rights to Do Wrong
85

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4. How to “Abuse” a Right
109

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5. Law and Morality in Ordinary Language and Social Science
131

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6. Divergences of Law and Morals: Sites and Sources
153

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7. Convergences of Law and Morals: Sites and Sources
176

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8. Questions of Method and Meaning: The Law at Odds with Common Morality
195

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9. Why This Book Is Not What You Had in Mind
217

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10. The Changing Stance of Lawyers toward Common Morality
233

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11. Commercial Morality, Bourgeois Virtue, and the Law
246

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12. How We Attach Responsibilities to Rights
261

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13. Common Morality Confronts Modernity
288

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Conclusion
319

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Notes
333

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References
429

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Acknowledgments
491

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Index
493

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Publishing information

Pages and Images/Illustrations in book

eBook published on:

April 1, 2019

eBook ISBN:

9780674240193

Pages and Images/Illustrations in book

https://doi.org/10.4159/9780674240193

eBook ISBN: 9780674240193

The Right to Do Wrong

Overview

About this book

Reviews

Topics

Table of contents

Frontmatter

CONTENTS

Introduction: Defining the Puzzle

1. Common Morality, Social Mores, and the Law

2. A Sampling of Rights to Do Wrong

3. Three Rights to Do Wrong

4. How to “Abuse” a Right

5. Law and Morality in Ordinary Language and Social Science

6. Divergences of Law and Morals: Sites and Sources

7. Convergences of Law and Morals: Sites and Sources

8. Questions of Method and Meaning: The Law at Odds with Common Morality

9. Why This Book Is Not What You Had in Mind

10. The Changing Stance of Lawyers toward Common Morality

11. Commercial Morality, Bourgeois Virtue, and the Law

12. How We Attach Responsibilities to Rights

13. Common Morality Confronts Modernity

Conclusion

Notes

References

Acknowledgments

Index

Bibliographic data