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

Much of what we could do, we shouldn’t—and we don’t. Mark Osiel shows that common morality—expressed as shame, outrage, and stigma—is society’s first line of defense against transgressions. Social norms can be indefensible, but when they complement the law, they can save us from an alternative that is far worse: a repressive legal regime.

Table of Contents:
Cover Title Page Copyright Dedication Contents Epigraphs 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

Review :
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