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

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

Author: Mark Osiel
Publisher: Harvard University Press
ISBN: 9780674368255
Published In: March 2019
Format: Hardback
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

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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.

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