Table Of Content

THE RIGHT TO DO WRONG The Right To Do WRong MoRality and the liMits of laW Mark osiel Cambridge, Massachusetts London, England 2019 Copyright © 2019 by Mark Osiel All rights reserved Printed in the United States of Amer i ca First printing 9780674240209 (EPUB) 9780674240216 (MOBI) 9780674240193 (PDF) The Library of Congress has cataloged the printed edition as follows: Names: Osiel, Mark, author. Title: The right to do wrong : morality and the limits of law / Mark Osiel. Description: Cambridge, Mas sa chu setts : Harvard University Press, 2019. | Includes bibliographical references and index. Identifiers: LCCN 2018025427 | ISBN 9780674368255 (hardcover : alk. paper) Subjects: LCSH: Law and ethics. Classification: LCC K247.6 .O85 2019 | DDC 340/.112— dc23 LC rec ord available at https:// lccn . loc . gov / 2018025427 To Joëlle CONTENTS Introduction: Defining the Puzzle 1 1. Common Morality, Social Mores, and the Law 22 2. A Sampling of Rights to Do Wrong 44 3. Three Rights to Do Wrong 85 4. How to “Abuse” a Right 109 5. Law and Morality in Ordinary Language and Social Science 131 6. Divergences of Law and Morals: Sites and Sources 153 7. Convergences of Law and Morals: Sites and Sources 176 8. Questions of Method and Meaning: The Law at Odds with Common Morality 195 9. Why This Book Is Not What You Had in Mind 217 10. The Changing Stance of Lawyers toward Common Morality 233 11. Commercial Morality, Bourgeois Virtue, and the Law 246 12. How We Attach Responsibilities to Rights 261 13. Common Morality Confronts Modernity 288 Conclusion 319 Notes 333 References 429 Acknowl edgments 491 Index 493 Should there happen to be a country whose inhabitants were of a social temper, open- hearted, cheerful, endowed with . . . a fa cil i ty in communicating their thoughts; who w ere sprightly and agreeable . . . and beside had courage, generosity, frankness and a certain notion of honor, no one o ught endeavor to restrain their manners by laws, unless he would lay a constraint on their virtues. — Baron de Montesquieu, The Spirit of the Laws, 1748 It is the manners and spirit of a p eople which preserve a republic in vigor. A degeneracy in t hese is a canker which soon eats to the heart of its laws. — Thomas Jefferson, Notes on the State of Virginia, 1782 Standing within the law, we are always in danger of allowing law to fill our entire vision . . . Not to see the end of social order as the rule of law strikes us as unnatural—t he equivalent of imagining a world without gravity. — Paul Kahn, The Cultural Study of Law, 1999