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

About the 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.

About the Author :
Mark Osiel holds the Aliber Family Chair at The University of Iowa’s College of Law. He regularly addresses international organizations and governments in post-conflict societies on issues of transitional justice. Osiel was Director for International Criminal and Humanitarian Law at the T. M. C. Asser Institute in The Hague and is an occasional media commentator on legal aspects of contemporary armed conflicts.

Review :
An understated, unexpected masterpiece. 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. 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. 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. 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. 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. 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. 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.