RIGHTS TO DO GRAVE WRONG
Mark Osiel1
ABSTRACT
Rights to do grave wrong arise whenever the law permits conduct that ordinary morality
severely reproaches. We examine one good reason, ignored by legal thought, why such
rights develop: because their undoubted dangers are mitigated by extra-juridical encumbrances on their irresponsible exercise, establishing a normatively acceptable equilibrium. This complex of rights-cum-restraints amounts to an implicit regulatory strategy,
applicable far afield, presenting at once distinct perils to moral order and an efficient
solution to certain regulatory predicaments. It should sometimes give pause to extending law’s reach into certain corners, at least, of private ordering. To enforce the relevant
restraints, our law tacitly relies on social stigmatization, yet does so without clear appreciation of when such reliance becomes problematic. It is especially so where: (i) the legal
right to which responsibilities are linked arises from an essential task or position authorizing one to cause grave harm; (ii) the scope of the right would hence be very limited, but
for our confidence in assurances that concomitant moral duties will be honored; and
(iii) the nonjuridical supports for fulfillment of these duties are uncertain, apparent only
via arduous empirical inquiry, or simply defy description in a satisfactory modern idiom.
Table of Contents
INTRODUCTION
PART I
I.1
Illustrations
I.2
Methods for Restraining the Exercise of Disfavored Rights
I.3
Dissuading the Wrongful Exercise of Legal Rights: Variations in Legality,
Efficacy, Intentionality, and “Internality”
1
Aliber Family Chair in Law, University of Iowa, Iowa City, IA 52242, USA. E-mail: mark-osiel@
uiowa.edu. JD, PhD, Harvard 1987. For helpful comments and general guidance, the author
expresses his gratitude to Tom Baker, Ziv Bohrer, Sandy Boyd, Paul Dubinsky, Linda Emanuel,
Kent Greenawalt, David Orentlicher, Susan Shapiro, Kenneth Winston, the Iowa Legal Studies
Workshop, and the University of Michigan Legal Theory Workshop. Support was provided by
the University of Iowa College of Law and the Minerva Center for Human Rights at the Hebrew
University of Jerusalem, where an early draft was presented at a conference on “Proportionality in
Armed Conflicts”.
ß The Author 2012. Published by Oxford University Press on behalf of The John M. Olin Center for Law, Economics and Business
at Harvard Law School.
This is an Open Access article distributed under the terms of the Creative Commons Attribution License
(http://creativecommons.org/licenses/by/3.0/), which permits unrestricted, distribution, and reproduction
in any medium, provided the original work is properly cited.
doi:10.1093/jla/las015
Advance Access published on October 28, 2012
108 ~ Osiel: Rights to do Grave Wrong
I.4
I.5
I.6
I.7
PART II
II.1
The Inarticulateness of the Eloquent: A Cautionary Tale
How We Talk About Rights to Do Wrong: Beyond the Constitution
Rights to Do Grave Wrong as a Conflict of Law and Morality
The Social Fragility of Individual Rights
The Modern Ascendance of Positive Law and the Fateful Decline
of “Mores”
Lawyers in the Restraint of Rights to Do Wrong
II.2
PART III
III.1
How Rights to Do Wrong Arise
III.2
Convergence and Divergence of Law and Mores: Empirical Incidence
III.3
Good Reasons Why Law and Lay Morals Go Separate Ways
III.4
The Failure to Codify Responsibilities Inextricable from a Right
III.5
“Responsibility-Rights”
PART IV
IV.1
Two Detailed Illustrations of Rights to Do Serious Wrong
IV.1.i The Right To Decline Medical Treatment
IV.1.ii Collateral Damage in War
CONCLUSIONS
REFERENCES
INTRODUCTION
The law sometimes lets us do very, very bad things. In fact, there exists an entire
class of such entitlements. Let us call these rights to do wrong, a moniker
capturing their curious and vexing character. They are also unavoidable, inevitable. They arise whenever the law permits conduct that ordinary morality
severely reproaches. These are rights that we at once deeply enshrine within
our law, yet aggressively discourage one another from exercising. We are sincere
and justified—not guilty of self-delusion or mystification—in regarding these
as important to protect through codified rules, sometimes grounded in high
constitutional or humanitarian principle.
We nonetheless also treat such rights as advisable to frustrate at every
turn because we think it often wrong for people to employ them. We recoil
especially at the possibility of facilitating their widespread usage, i.e., in
more than a very restricted set of circumstances, which the law fails to
define and delimit. We feel ambivalent, even profoundly troubled at times,
in recognizing these rights at all. In doing so nonetheless, we act in good
conscience and on defensible grounds. For we have reason to believe that
various forces—informal, extra-juridical—will press upon most people and
institutions to exercise such rights responsibly, in the sense of attending to
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 109
moral considerations that law itself cannot fully embody or enforce.2 That
we are unable to fix upon a satisfactory legal rule, in the normal sense, is
therefore immaterial.
This situation arises with some regularity. Its mix of features may neither
be immediately recognizable nor readily intelligible. It is not uncommon,
however, within our sociolegal order. It presents a puzzle that, at some
level, almost everyone has at least casually considered. It amounts to a distinct complex of legal activity, combining facially overbroad rights that
knowingly authorize serious wrongdoing, with anticipation of countervailing
influences likely to limit undesired repercussions. More succinctly, the law
retreats and lets social norms prevent it from being abused.3 This is the
neglected converse of the more familiar situation—perhaps no more frequent—where the law prohibits, even criminalizes an activity, but makes
little effort at enforcement, because moral opinion has so shifted that few
now regard the activity as wrong, or at least no longer think it so wrongful as
to warrant great public expense in discouraging it. That would be a scenario,
in other words, involving the de facto authorization of what remains proscribed de jure, whereas we are here concerned with what is permitted de
jure, but de facto prohibited (through effective discouragement).
Part I of this article first offers several examples of rights to do wrong. It then
suggests a brief anatomy of several means by which we frequently restrain such
rights. We indicate how the notion of rights to do wrong fits well with common
parlance, but bears only tangentially on perennial debates within legal theory
2
What makes such considerations and norms “moral”, in a more precise sense than merely a residual
category for the nonjuridical, presents a more difficult question than we nonphilosophers generally
suppose. For disagreement not merely exists over how to reach particular moral judgments, but also
over how to define what distinguishes moral judgments from other kinds. All of the conduct
examined here falls so clearly within virtually any definition, however, that such foundational
issues are immaterial to present concerns. In its focus on “grave” wrong, this inquiry examines
questions that arise at the core of any plausible conception of the moral, not at the outer boundaries
of that domain, where our questions are of less significance.
3
This configuration of elements is a subset of the much larger class of “rights to do wrong”, in the
present sense. That striking turn of phrase has been used in ways very different than here. See, among
others, Waldron (1981, 22) (defining it, for purposes of moral theory, as implicated where “the
action in question is morally wrong, but nevertheless it is an action that the agent in question has a
moral right to do”). This is possible insofar as moral rights protect a realm of individual choice
within which we are free to act however we may choose.
We employ the word “right” to refer to anything a legal system entitles one to do. Hohfeld (1923)
was correct that this broad usage of the term encompasses many different species of legal claims that
people have upon one another, and that it is often useful to disaggregate these. Still, for present
purposes, that is unnecessary and would make the ensuing inquiry needlessly complicated and
recondite.
110 ~ Osiel: Rights to do Grave Wrong
about the relation of law to morality or on “law and society” discussion of
informal restraints on “naming, blaming, and claiming”. We show that the
scope of such rights extends well beyond constitutional law, where scholars
exclusively find it. Part II demonstrates how modern law relies much more
on tacit convention in tempering “disfavored” rights-exercise than standard
accounts acknowledge. In illustration, we sketch the changing role of the legal
profession in dissuading clients from exercising their rights in ways considered
wrongful.
Part III then enquires into how rights to do wrong arise, showing how
these have multiple sources, obstructing any effort to theorize the entire class
of such rights in a single swoop. Though many of these sources are familiar,
in general terms, we know very little, more specifically, about the distribution
of situations in which they actually arise. Legal thought has ignored that
question, resting content with our glib facility to reel off a handful of platitudes about why law sometimes does not closely track moral opinion. In
dismissing the question of empirical incidence, we have also missed a subtle
but significant reason for why our law is frequently more indulgent of unethical conduct that is community opinion. Part IV offers two detailed illustrations of rights to do serious wrong, drawn from disparate legal fields.
The Conclusions link the preceding Parts into a single argument about the
place of such rights within our legal system.
We refer throughout to illustrative predicaments that vary greatly in moral
gravity, from the cardinal to the merely venial, the monumental to the mundane, and from global to local. This is because very similar causal mechanisms
are regularly at work across them all, both in creating and closing breaches
between law and common morality. To better understand both processes, we
need to examine a variety of situations within many legal fields, differing in
several ways—moral gravity among them. Only then can we return to the most
wrenching, disturbing cases, to discover how they may genuinely stand apart. A
phenomenon that is widespread within many spheres of life—and banal in
garden-variety circumstances—can become ethically salient and politically controversial when matters of life and death on a large scale are suddenly at stake.
Once the wrongdoing that law permits becomes serious or grave (terms here
employed interchangeably), public policy can scarcely remain indifferent. Yet,
the most difficult and affecting cases also distinguish themselves from their
surrounding legal environment in other, less obvious ways. At these times,
rationales for law/mores discrepancies that we ordinarily find compelling
become much less so.
But we must begin on more familiar ground, where we are likely to be less
troubled by such disparities. On a modest scale, rights to do wrong sometimes
spring simply from the inherent limitations of language in capturing our
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 111
underlying legal objectives.4 Closely related, the impossibility of perfectly distinguishing morally acceptable from unacceptable exercises of a right often
leads us to authorize some of the latter for fear that a broader restriction
would inadvertently discourage some of the former. This is a quotidian concern, one which skilled legislative drafters and judicial opinion writers routinely
confront and cannot entirely overcome. We live with it. Neither are we seriously
perturbed when law limits its restrictive reach due merely to the excessive cost
(in time, energy, and foresight) of attaining greater verbal specificity about the
factual predicates for every conceivable application of a rule. That too is a
commonplace, to which we again have established responses, acceptable
enough most of the time.
Doubts begin to arise, however, in the less frequent situation where we have
created rights to do serious wrong because we believe or assume that law can
harness extra-juridical processes in service of important policies that the law
itself cannot directly implement. We sometimes authorize serious wrongdoing,
in other words, when the just-mentioned linguistic and other strictly “lawyerly”
obstacles to broader legislative restraints do not compel it. Even where such
perennial obstacles give pause to more restrictive regulation, many lawmakers would seek to forge ahead nonetheless, but for their tacit confidence
in a certain baseline measure of adherence to social mores, ensured by private
conscience and interpersonal suasion.5 This is the case in our principal case
studies.6
At such moments, we may see ourselves as placing a prudent measure of
trust.7 Yet, we may actually be taking more of a leap of faith, venturing merely a
4
Schauer (1991, 31–34) (describing this perennial source of under-inclusiveness in legal rules vis-àvis the policies they are designed to serve).
5
It can be very difficult, of course, to reconstruct the unstated assumptions of social actors to this
effect within a given historical period, even when many remain alive. The task requires both a
satisfactory documentary record and relative candor within it concerning what participants believed
themselves to be doing. The more controversial a legislative measure, the more it may both bring
such background suppositions to consciousness and yet ensure that they are kept close to the chest.
But see, Veyne (1984, 151) (describing how a competent historian, once fully acquainted with all
available evidence, acquires “a feeling for the climate of a time”, allowing her “a knowledge of what
one can or cannot expect of people of that period”, inferences derived from but well surpassing the
four corners of such documentary materials).
6
Admittedly, any explanatory appeal to processes or practices said to be tacit or otherwise eluding the
consciousness of those engaged in them, though a perennial leitmotif of social theory (from
Durkheim on suicide to Skocpol on revolution), confronts notable methodological obstacles
which we do not deny or seek to finesse. See infra note 189.
7
This is the species of trust that social scientists have described as “calculative”, because it is based on
a reasoned assessment of the tradeoffs between risks and potential benefits of a decision to rely upon
a person or institution to behave in a particular way over time. This is sometimes distinguished from
“normative” or “social” trust, seen as less precise in scope and temporal origin or duration, enforced
112 ~ Osiel: Rights to do Grave Wrong
wager,8 which we might lose, a fact we may discover only much later,9 when it is
too late to shift course without extraordinary difficulty. When the stakes are
high (because human life in large numbers is at risk), such a course of action is
defensible only after due consideration of likely ramifications—often not actually undertaken.
What proves uniquely disconcerting about the hardest cases is that grave
wrong threatens regularly to result from violation of ethical duties that
cannot—for perfectly acceptable reasons—be adequately codified as limitations
on a legal right to which they are seen as inextricably attached. This quandary
often arises because both rights and responsibilities emerge from a single task or
role, regarded as critical, sometimes indispensable. In exchange for honoring
the accompanying moral duties, these roles bestow a perilously broad range of
rights to cause serious harm. Since both the rights and responsibilities spring
from activities considered essential, we cannot simply dispense with the
rights when we discover that the attendant duties have been consistently
breached, the rights themselves thereby “abused”.10 To the extent they fit this
ideal-type,11 particular rights come into being in ways virtually ensuring that
at multiple points within an institutional environment (Mizrachi, Drori, & Anspach 2007, 145). Our
case studies do not lend themselves to so simple a classificatory dichotomy, however. For they
regularly involve a deliberate strategy of relying upon a diffuse set of contextual constraints, a
course of action settled upon at a given moment but also subject to periodic reassessment thereafter.
This element of “reflexivity” is central to Giddens’ notion of “active trust”, encompassing both a
lively skepticism on our part and vigorous efforts by experts and others to sustain our trust in them,
understood as contingent, sometimes precarious (Beck, Giddens, & Lash 1994, 86–91, 187). That
account is clearly as much an evaluative ideal as a description. But it is an ideal that emerges quite
intelligibly—almost naturally and necessarily, Giddens implies—from any adequate understanding
of contemporary conditions.
8 This is a fair characterization, for instance, of the view that “[I]f people are given more responsibility, they will behave more responsibly”, a stance adopted by the U.K. Conservative Party in
response to the then-Labor government’s 2009 Green Paper (Ministry of Justice 2009).
9 Some of the case studies here examined may be characterized in precisely these terms.
10 The notion that a certain legal right has been “abused” is common in public parlance. But since that
expression is predictably absent from lawyerly discourse, this colloquialism—undoubtedly tantalizing—has not received the jurisprudential attention it surely warrants. At a minimum, public language that is highly offensive to prevailing mores, such as that recently in Snyder v. Phelps, can
credibly be described as an abuse of the right to freedom of speech, in contrast, say, to libelous and
perjurious speech, which simply exceed the scope of that right (Schauer 1981). Schauer suggests that
though certain rights (to speech, in particular) can be meaningfully described as susceptible to abuse,
other rights—to privacy, to marry, and to vote—cannot. He does not tell us, however, what it is
about a given right that renders it amenable to abuse.
11 Within social science, an ideal-type—such as “bureaucracy” or “the Protestant ethic”—is a heuristic
tool for identifying and coherently capturing an intriguing feature of certain empirical materials,
enabling us to observe otherwise unnoticed similarities among them (Weber 1949).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 113
there will be (in many situations) resistance to their exercise and that such
resistance will enjoy wide acceptance.12
The problem of foreseeable civilian casualties in war offers the clearest illustration of this, most closely approximating the ideal-type just delineated. Other
situations present salient features of the type, and so are examined briefly as
well, without seeking to minimize the moral shadings that differentiate them in
other respects.13 In casting this broader net, the present inquiry distinguishes
situations on the basis of: (i) how a particular right came into being despite
widespread recognition that its exercise might regularly prove wrongful; (ii)
whether, to what extent and by what means, there arose a social practice of
effective resistance to such wrongful exercise; and (iii) whether this resistance is
generally viewed as defensible, on what grounds, i.e., in light of its methods,
measure, and motives. We will see that, unlike in our ideal-type, certain rights
to do serious wrong do not originate (nor are invariably exercised) in ways that
guarantee broad resistance, widely endorsed, to their abusive exercise.
Just as our law often seeks to dissuade us from what environing pressures
may encourage, so too social prodding often discourages us from doing what
the law permits. The two phenomena are generally viewed in isolation, but
might be better illuminated if examined together, so their intimate, intricate
relationships might be disentangled and anatomized. Disharmonies between
these two influences upon our conduct—the law versus social expectations—
are precisely what generate a right to do serious wrong in the present sense. The
modest purpose of this inquiry is to formulate that concept crisply, suggest its
12 This is obviously not the case of certain rights to do grave wrong, such as to own and cruelly mistreat
chattel slaves, enforced so brutally that the possibility of resistance is virtually nil, at least by those
immediately afflicted through their exercise. Slave uprisings were mercilessly repressed and therefore
infrequent, even as more modest resistance, some historians claim, was at least periodic. Yet slavery
is irrelevant to our ideal-type situation for a more basic reason: during most of its history slave
owning was not widely viewed as wrongful, not only by slaveholders themselves but also by Southern
Whites generally. Nor was invocation of this right susceptible to moderation from pressure by
outsiders. Since Northerners were not perceived by slaveholders as occupying the same social community, their views on such matters carried little weight. In any event, they themselves increasingly
saw slavery as unethical tout court, its inherent injustice simply immune to any serious ethical
leavening. The creation and persistence over time of this particular property right, moreover, was
not at all influenced by expectations among lawmakers that its implementation would be chastened
through any such modest intra-elite remonstrance, much less by resistance from below. In other
slave societies as well, by the mid-19th century at least, no normative equilibrium was possible
between the legal antitheses of virtually unrestricted bondage and complete abolition.
There exist other such rights to do wrong, i.e., so antithetical to emergent mores that their
continued existence cannot be secured through prudent moderation in their exercise; even the
most judicious self-restraint does not allow de jure equilibrium through de facto abnegation. This
has been the case for moral wrongs well short of slavery.
13 Particular “cases” of any such type are never more than imperfect instantiations and always differ
significantly among themselves, often revealing only a Wittgensteinian “family resemblance”.
114 ~ Osiel: Rights to do Grave Wrong
significance, sketch out some of its sources and empirical expressions (with no
pretense to being exhaustive), and encourage its further study. One task for
such inquiry is to identify the mechanisms through which extra-juridical constraint on this class of rights tends to operate. It would also be helpful to
ascertain the relative prevalence of such rights within different legal systems,
and in what legal fields they may tend to congregate.
Within moral philosophy, discussion of the same expression—rights to do
wrong—dwells on the question of conceptual possibility, i.e., whether it is coherent to speak in such terms at all. As we have defined the concept, however,
there can be no doubt that such rights exist, that we are not chasing a dybbuk.
Our concern is rather with their empirical incidence and distribution—i.e.,
where, how, and why they present themselves in our lives—and with how the
legal system creates and copes with their myriad manifestations.
The situations that interest us must be distinguished from those where law
simply falls unwittingly “out of sync” with public mores, as when the first of
these normative orders moves at a temporal pace (or even, more rarely, in a
direction) different than the second. We find this other sort of disconnection in
the early history of life insurance, for instance, which early 19th-century
American legislators chose to permit, but decades before the general public
(and so the market for this ingenious new commercial product) came to consider it unobjectionable,14 for it was long thought sacrilegious to “gamble” on
the death of loved ones. The product finally became socially acceptable and
commercially viable when marketed as a respectable way for responsible fathers
to honor a moral duty to provide for their families in the event of early death.
Other early forms of insurance were genuinely indistinguishable from gambling; so it was only when the legal requirement of an “insurable interest” in
the potential victim was introduced that the morality of insurance became
well-settled (Clark 1999, 9, 22, 34–35).
The early history of personal bankruptcy law presents the opposite sort of
temporal disconnect between law and public mores.15 There, the incipient capitalism of Renaissance England posed the novel challenge of how to encourage
potentially productive risk taking by emergent entrepreneurs without also fostering reckless speculation, widely considered immoral. The common law had
long given much greater weight to the latter than the former concern, fearing
that many people would unethically exploit the possibility of release from their
debts. Here, the law was slower to accommodate changes in economic life—
changes that would later prove crucial to modern economies—than was
14 See, generally, Zelizer (1979) and Alborn (2009).
15 The material in this paragraph relies upon Weisberg (1986).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 115
contemporaneous commercial culture, i.e., the evolving morality of the marketplace and its nascent merchant middle class. In this case, it was the legal system
that “lagged” behind social morality; “catching-up” only as fears of “moral
hazard” attenuated over time with statistical evidence that rates of commercial
default would be acceptable to creditors and legislators.
That law and mores sometimes move to different rhythms is scarcely a profound observation, however, and is not the focus here. Bringing the two into
harmony is sometimes much more difficult, to be sure, than in these last two
examples. To prohibit slavery in the USA (though not elsewhere), draw
American law into line with the hardening moral sentiments of 19th-century
abolitionism, it took the deaths of some 750,000 people in war. Harmonization
can be anything but harmonious. Still, our immediate cases present a more
peculiar puzzle than any such experience of reconciliation, whether gradual and
peaceful or sudden and violent, because we discover in them, instead, a stable
equilibrium between the countervailing forces of law and community morality,
allowing the disparity between them to persist for long periods, to the general
satisfaction of virtually everyone concerned.
PART I
I.1 Illustrations
Consider quickly seven examples of rights to do wrong, two of which we later
discuss at length.
(1) Until a human fetus attains viability, U.S. constitutional law allows
women to receive an abortion for any reason. This is not because most
people think all reasons for seeking an abortion are equally acceptable, but
rather that it has proven virtually impossible to draft an enforceable law distinguishing between morally acceptable and unacceptable reasons. Several states
tried in effect to do that, indirectly, before Roe v. Wade, and a few other Western
countries continue this attempt,16 as by requiring a woman to demonstrate that
her health would be “gravely impaired” if she were denied the procedure. A
woman who openly declared that she had merely failed to employ contraception, and simply did not wish to have a child, would fail such a test.
In practice, however, pregnant women needed only to find a physician sympathetic to abortion rights in order to obtain the required letter indicating a
threat to health. This effectively mocked the legislative effort to ascertain a
woman’s true reasons and to allow the procedure only when endorsed by
16 Glendon (1987, 145–150) (identifying several countries in Western Europe where abortion is available only “for good cause”).
116 ~ Osiel: Rights to do Grave Wrong
conventional morals. The upshot is that in the USA, there exists since Roe a legal
right to employ previability abortion, rather than contraception, as a form of
birth control. Opinion surveys consistently have shown that at least 70 percent
of the Americans believe that abortion under these circumstances is wrong
(KRC/Boston Globe Poll 1989, 7; Granberg & Granberg 1980, 252).17
(2) Declaring personal bankruptcy would often be materially advantageous
to thousands of working Americans who experience severe financial difficulty.
Yet many such people also believe that it is wrong to avoid one’s financial
obligations in this way, especially when one’s own imprudence or avarice
(rather than medical expenses) is primarily responsible for one’s plight. This
belief combines with the considerable social stigma associated with going bankrupt18 to deter a significant portion of such people from exercising legal rights
to discharge their debts in this way, or causes them to defer that step for a
significant period, to their disadvantage.19 Common morality especially
reproaches strategic exploitation by wealthy debtors of generous homestead
exemptions on personal property.
(3) A medical patient who has a nonterminal ailment and is legally
competent has an unqualified right to decline life-sustaining treatment. Yet
physicians, hospitals, and family members often do virtually everything
within their powers—legal and beyond—to effectively prevent such a patient
from exercising this right. They intercede because they think it wrong to allow
anyone to die under such circumstances, i.e., without what they consider a
“good reason”. There is considerable anecdotal evidence, from reliable sources,
that their conduct is consistent with prevailing moral opinion. Opinion polls
consistently show that, except with respect to the terminally ill, Americans
consider suicide to be wrong, not merely irrational.
(4) International law permits militaries in armed conflicts to kill civilians—
knowingly, if unintentionally—where such “incidental” harm is not “clearly
excessive”20 in relation to “the military advantage anticipated” by a particular
use of force. Even so, through more stringent “rules of engagement” (ROE) and
procurement policies for nonlethal weapons, the U.S. military displays
17 The distribution of this belief no doubt varies with social milieu, and readers of this article may
therefore be unaware of its pervasiveness beyond their range of acquaintance.
18 Cohen-Cole & Duygan-Bump (2008) (finding, from a large sample of credit bureau data, that stigma
from bankruptcy has declined primarily among the wealthy and well-educated, and that the notable
increase in bankruptcy filings by other groups since the late 1960s has rather different sources).
19 Sullivan, Warren, & Westbrook (1989) (finding that “[o]ur data show that in this decade stigma
seems to be holding its own as a gatekeeper for bankruptcy, as the great majority of people in
bankruptcy are truly desperate”.).
20 Rome Statute of the International Criminal Court, Article 8(2)(b)(iv).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 117
considerably more restraint in use of force (and redresses more of its harmful
consequences, via compensation and condolence payments to victims) than
international law requires. This tempering of rights-exercise is largely prompted
by reputational concerns among America’s leaders, who are attentive to global
opinion, and by more immediate career concerns of professional soldiers, fearful about accusations of employing excessive force.
(5) To encourage public disclosure of corporate fraud, several federal statutes
grant “whistleblowers” a sizable share—regularly in the multimillion dollar
range—of sums the government recovers from criminal defendants.21 These
strong incentives have neither prompted significant numbers of “false positives”,22 nor led to such frequent disclosure of genuine misconduct as to disrupt
or threaten vital government programs and the private industries on which they
depend. Both of these consequences would surely count as harmful and undesired by legislative drafters.
Despite the law’s formal bar against employer retaliation, exercise of the right
to blow the whistle is nonetheless much restrained by the knowledge that doing
so will destroy one’s valued relations with co-workers and future prospects in
pertinent labor markets.23 To this source of hesitation is joined the counsel
of family and friends, who often discourage those with knowledge of corporate
fraud from exercising rights to disclose it.24 On one hand, these countervailing
pressures insure that no one lightly undertakes such reporting, which
much reduces inaccurate allegations. On the other, the result is that—despite
the enticing statutory incentives—whistle-blowing is almost certainly underproduced, given the demonstrated extent of corporate misconduct in recent
years.25
21 For two recent examples under the federal False Claims Act, see, e.g., Dale (2011) and Kennerly
(2009)
22 Lipman (2012, 98).
23 Lipman (2012, 57) (quoting public remarks of S.E.C. General Counsel David Becker); see also id. 5,
58–68. Anyone contemplating such revelation would be deeply sobered and likely deterred by
learning that most whistleblowers, even when vindicated by the proven accuracy of their accusations, “are in some way broken, unable to assimilate the experience, . . . to come to terms with what
they have learned about the world. Almost all say they wouldn’t do it again. . . . ” (Alford 2001, 1)
(reporting results of interviews).
24 Alford (2001, 1, 10, 19, 49, 118–119) (describing how family members regularly oppose the decision
to report, and sometimes thereafter cease contact with the whistleblower entirely). This is a recurrent
theme in the autobiographical reflections of whistleblowers. See, e.g., Rost (2006, 1–3); cf.
Oppenheimer (2012) (observing of one whistleblower that even his own mother “was a little embarrassed by him”).
25 An implicit aim of all whistleblower statutes is to overcome the undercurrent within common
morality that leads many people to disparage a fellow employee as a “snitch” or disloyal “tattle
tale” if he discloses organizational misconduct.
118 ~ Osiel: Rights to do Grave Wrong
(6) Much of the world is unhappy about how Western museums obtained
their present collections, frequently invaluable, from ‘source’ countries. An
international treaty that entered into force in 1970 prohibits such museums
from acquiring artwork and other cultural property of clearly dubious provenance. Museums have no legal duty, however, to return or otherwise share such
works obtained before that date.26 The treaty is not self-executing and the USA,
due to lobbying by art museums and other influential collectors, incorporated
only the less demanding provisions.27 The practical result is to allow continued
lawful importation of much cultural property, which has probably been
acquired illegally.
An increasingly vehement world opinion, however, regards unqualified retention and further acquisition of purloined works as wrongful.28 These critiques extend to retention of works acquired in ways consistent with the law at
the time, both that of the source country and the importing state, but at odds
with current ethical sensibilities. Such opinion is suspicious, for instance, of
lawful “gifts” of invaluable national patrimony by despotic rulers to colonial
masters, often in exchange for personal favors from the metropole, in which
fellow nationals did not share.
This decisive shift in world opinion has made it impossible for Western museums to entirely disregard increasing demands for repatriation and long-term
loans to source countries. These requests often issue from newly democratic,
politically stable societies where the works originated—frequently former colonies of the countries these museums inhabit. Such source countries are thought
to have strong moral claims to some portion of what was taken from them.
When drafters formulated the 1970 treaty, third world nationalism was reaching
its high watermark, and that worldview finds ample reflection within the document. Though this ideology greatly waned thereafter in most respects, its insistence upon the preservation and recovery of national artistic patrimony
continued to win ever greater sympathy among Western cultural elites.
A new generation of curators—first in anthropological museums, then in the
non-Western arts—has endorsed several innovative devices for partly accommodating these source country demands. To satisfy domestic law, this must be
done consistently with the fiduciary duties of director–trustees to the citizens of
the state where a museum incorporates, duties precluding any wholesale
26 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of
Ownership of Cultural Property, November 14, 1970, 832 U.N.T.S. 231. The implicit effect was to
“grandfather-in”, for international law purposes at least, works acquired before that date. For
analysis of the several issues raised in this paragraph, see generally, Merryman (2006, 2009).
27 The Convention on Cultural Property Implementation Act, 19 U.S.C. §§2601–2613.
28 See, e.g., Democracy Now, Probe (2012).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 119
rendition of works now lawfully within its collection. In order to protect against
future importation of stolen work, however, the federal government has entered
into memoranda of understanding with some 20 source countries in the developing world. These nonbinding agreements commit the USA in helping to
enforce their “national patrimony” laws, which bar export of treasured cultural
heritage. The American MOA now offer source countries considerably greater
protection to this end than does our legislation itself, by its express terms.
The Western archaeologists who first prompted this reorientation of rich
country views were, it appears, sincerely receptive to the normative claims of
the non-Western and Latin American peoples. No less important, however,
were their professional interests in continued access to sites of excavation in
such countries. That access was becoming increasingly contingent on resource
sharing by Western museums and on more generous terms of “partage” than in
the past, when European archaeologists frequently took the most valuable artifacts for “better preservation” in their own countries. American art museums—
last in the Western world to acknowledge the new global sensibilities—began to
cooperate to this end only in the last decade, as it became clear that, without
some such compromise, there would be no further long-term loans of cultural
property from source countries, where much of both aesthetic and anthropological value remains.29
A new normative equilibrium is emerging and settling in. It shows no sign of
crystallizing into customary international law, however, since Western states
and their museums make very clear that—in their increasing accommodation
of source country demands—they do not consider themselves to be acting
under legal obligation. Though standards may become more stringent, they
will continue to be formulated and enforced chiefly through evolving social
norms rather than international law. The case of contemporary museum practice therefore well fits our ideal-type, involving as it does extra-juridical pressures sustaining a normatively acceptable equilibrium, which makes greater
juridification unnecessary, whether or not it would otherwise have proven possible or likely.
(7) Economists generally view “moral hazard” as a perennial, intractable
problem in all insurance schemes: private or public (Shavell 1979). This curious
term of art refers to the strong probability that, freed from bearing the full
consequences of our most callow or callous conduct, we more frequently indulge in it, thereby causing greater harm to ourselves and others than if we were
not thereby insulated (Abraham 1986, 15–16, 35–36; Heimer 1985, 28–48).
29 The recent President of Chicago’s Field Museum, Prof. Sandy Body, has been my chief source of
information on these recent developments. Author’s interview, June 2012.
120 ~ Osiel: Rights to do Grave Wrong
That plausible hypothesis is then defended, not by showing how often people
succumb to such temptations, but by way of axiomatic assertion that, as rational actors, we are inexorably driven to exploit every available opportunity to
“free ride” on the costly contributions of others to any scheme of social cooperation. We will “defect” whenever we can get them to subsidize our very
disregard for their interests. On this broader, more ambitious claim, individual
rationality compels what social morality would often condemn.30
Economic theory thus suggests an inherent, ineradicable conflict between the
interests of insurer and insured. Standing alone, however, this analysis leaves
out a potentially crucial consideration: that social expectation of the insured
party sometimes impose further duties, discouraging her from fully exploiting
moral hazard. These expectations arise from particular duties that the insured
feels she owes toward others likely to bear some brunt of any harm she may
cause, against which the insurance protects only her.
The empirical significance of moral hazard therefore varies in relation to such
subtle specificities of context, which partly explains why insurers regard moral
hazard as a greater obstacle to profitably offering protection against some kinds
of risk than others, and protecting certain people and institutions against a
particular category of risk than other such parties. These contextual considerations include the nature and extent of attachments, personal and professional,
that insured people and institutions maintain with others. What economists
often assume is a constant, rooted in an invariant fact about human psychology,
is hence better understood as a sociological variable.31
The inclination to free ride off the collected pool of others’ premiums can be
held in check, to varying degree, where this is simply seen as wrong.32 It may be
wrongful in the eyes of the insured party himself, of others whose interests
concern him, and/or additional parties—potentially prejudiced by his lackadaisicalness—likely to monitor his conduct, often more effectively than could
30 Or at least traditionally condemned, until economic theory began to “educate” the general public,
perhaps.
31 See, especially, Ericson & Doyle (2004, 322); Ericson, Doyle, & Barry (2003, 71–82, 106–114,
236–271).
32 It is not the insurance itself that creates the right to do wrong. The insured was already free to treat
his property or person carelessly before entering into the insurance contract, insofar as he did not
thereby violate tort duties of due care toward others. Rather, the concern is that insurance may
induce him to exercise that right with greater frequency. Today, people must purchase insurance as a
precondition for many important life activities, such as acquiring a home mortgage or becoming
“bonded” to provide vocational services. For this reason, when insurance reduces our attentiveness
to risk, the result is to impose negative externalities on those who depend on us to display greater
responsibility than the insurance itself can hope to codify and enforce.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 121
any insurance company.33 For example, the public at large now plays a significant role in unearthing and reporting insurance fraud (on both public and
private providers), generally regarded as one form of moral hazard. This
increased public role, rooted in community morality, has been actively encouraged through advertising campaigns by insurers’ associations (Ericson & Doyle
2004, 150–152). These social constraints on our natural inclinations toward
“rational” indolence are often institutionally inchoate, yet by no means mysterious. They are discoverable only by venturing onto empirical turf economics
scarcely treads. They acquire socioeconomic salience wherever the scope or
depth of perceived obligation is greater than that fully reflected in the insurance
contract (and background law). Insurers themselves acknowledge that these
constraints contribute to the economic viability of their product by reducing
its price.34
Recent noneconomic social science suggests, moreover, that insurance is
increasingly structured to encourage self-sufficiency in planning one’s life
course and discourage reliance on social risk-spreading to stave off life’s unpleasant surprises (Baker & Simon 2002, 273–281, 291–294). This trend reflects
broader currents of public policy, seeking to instill in people a greater sense of
personal responsibility for their fate (Hacker & O’Leary 2012, viii, 4). Insofar as
such currents gain force, insurance companies would no longer need to worry
so greatly about moral hazard as they historically have done, for people would
become more spontaneously accountable for themselves and to those around
them, to the extent that they would less readily succumb to its temptations.35
33 In supervising regulated industries, as well as gathering and reporting data on their operations,
public officials also contribute significantly to loss prevention (Baker & Farrish 2005, 295–296).
34 For instance, “directors and officers” insurance protects corporate leadership from liability only for
civil fraud, not criminal. On the facts of most cases, however, both types of misconduct are in
evidence and will enter the public record during any litigation. The prospects of criminal liability
and public exposure therefore add a further restraint on exploitation of the moral hazard such
insurance creates. In addition to the possibility of facing jail time itself, executives can anticipate the
stigma associated with criminal conviction, which essentially eliminates any post-incarceration
employment opportunities in relevant labor markets (Baker 2008, 8); Baker & Griffith (2010,
186–195).
35 It is unclear, however, whether modestly curtailing the scope of insurance coverage genuinely induces many people to revise their self-understandings in responsibility-enhancing ways. Insurance
companies continue to be greatly exercised, after all, over the lurking inducements to moral hazard
within their products. This suggests that—as a Foucaultian “technology of governmentality”—insurance has not yet so transformed our intimate self-assessments as to much reduce our apparent
appetite for imprudent risk. Unless such companies are wildly mistaken, we must conclude that
efforts—through insurance and otherwise—to socially construct a self-policing “neoliberal subject”
have not been a very effective source of push-back against the enduring temptations of moral hazard,
this particular way of breaching conventional morality.
122 ~ Osiel: Rights to do Grave Wrong
This right to do wrong, otherwise encouraged by insurance, would be thereby
restrained.
In some of these situations (the military, medical, museum, whistleblower,
and insurance cases), rights to which party A is clearly entitled are significantly
curbed in practice by informal urgings from party B (often many Bs), who
makes it clear that he regards their unqualified exercise as wrongful. Party A
is not in a position to ignore B’s views, even where A is unpersuaded by them.
The two reach an accommodation on terms more demanding of A than
required by law. Such compromise may take a partly legal or quasi-legal
form, as in military ROE or long-term sharing agreements between Western
museums and those in source countries. An equilibrium of sorts is established,
at least provisionally acceptable to the parties concerned.
In the other examples above, external constraints are less important to restraining the particular right than inhibitions of conscience, though the prospect of stigmatization by others may enhance deterrent efficacy.36 With
personal bankruptcy, for instance, the debtor’s inner sense of moral duty to
others regularly dissuades or at least defers his exercise of this legal right;
feelings of shame or disesteem (i.e., fear of others’ reproach, even if only
36 In the leading account of this curious phenomenon, Goffman seeks to define stigma as the treatment
of people as if they were “not quite human”, leaving them with a “spoiled identity” (Goffman 1963,
2, 5). Though suggestive and insightful, these formulations perhaps tell more about the effects of
stigma than about its nature. They are also rather metaphoric. For both reasons, they may offer more
the preliminary basis for devising a definition than a definition as such. Though stigma has received
considerable public policy discussion and scholarly attention, no attempt has been offered more
careful than that of Goffman’s.
This is partly because no professional scientific discourse ever developed for “treatment” or
formal punishment of the stigmatized, of the sort that spawned entire libraries around the category
of the “abnormal” (Foucault 2003). One may first suspect that stigma remained insusceptible to any
such medicalization because the rest of us have always sought to preserve the element of moral
judgment it clearly manifests. Yet we do not actually employ the word itself when, among ourselves,
we surreptitiously engage in stigmatizing another, and we certainly do not employ it in expressing
our pejorative judgment of him to his face, in the way people are routinely described as abnormal.
Moreover, the thorough medicalization of abnormality (in the late 19th century) never remotely
succeeded in purging even that concept of its judgmental implications, beyond the few medical
specialists devoted to curing those thus benighted. “The abnormal” are, after all, widely stigmatized
as such, which means that the members of these categories much overlap in practice. A significant
difference between how the two groups are conceptualized is that abnormalization (as Foucault
observes) always entails individualization, characterizing a given person in terms of the ways he
deviates from a general social norm, whereas stigmatization involves the near-antithesis: his depersonalization through subsumption under the amorphous general category of the not quite human
and thereby morally degraded. There is surely no need to quibble over which of these two derogatory
categorizations is the worse, either in what it entails for those so designated or, from a normative
perspective, what it says in condemning the society engaged in so cruelly pigeonholing them.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 123
unspoken) induce further hesitation.37 With insurance as well, we sometimes
restrain our admitted inclination to court risks against which we are contractually protected because we implicitly acknowledge moral duties to those with
whom—through affiliations of kinship or vocation—we feel some sense of
shared fate, however ill-defined and extra-legal, people who could suffer nontrivial harm if such risks materialized. Finally, when broad rights to abortion
were first defended and legally adopted, many people surely anticipated that
inner ethical reservations, as well as some residue of social stigma, would dissuade frequent recourse to abortion in lieu of contraception as a method of
birth control.38 In this case, however, the constraining effect of private conscience and the possibility of public stigma on rights exercise has not been overwhelming to put it mildly.39 To what degree social expectations effectively
moderate the right-holder’s calculations can vary; it often depends on how
much he “internalizes” demands that he exercise his rights responsibly.40
Even when severely stigmatized by others for what they consider his immoral
conduct, the right-holder may choose to cling to his legal entitlement unrepentantly, as did curators of Western art museum in the face of growing critical
crescendo, until quite recently.
The seven illustrations vary as well in the ease with which abusive exercise of a
right may be concealed from others who would judge it harshly. In regard to
abortion, for instance, there is an informational asymmetry between
right-bearer and others, undermining any effort to stigmatize. The right to
cause civilian deaths in combat is different here, since the misconduct can no
37 For a recent economic reformulation of older observations to this effect, see McAdams (2010, 249).
38 This is admittedly a difficult assertion either to empirically establish or disconfirm. Histories of the
abortion debate in these years offer only provisional support, unworthy of detailed citation. On how
such methodological issues might nonetheless be satisfactorily addressed, see generally, Veyne supra
note 5.
39 There is no precise method for determining the statistical incidence of abortions sought in these
circumstances, but even a leading pro-choice organization has repeatedly acknowledged, based on
the repeated surveys over the years, that at least half of the American women who undergo abortions
report that they did not practice contraception during the month they became pregnant (Jones,
Darroch, & Henshaw 2002, 294, 297) (finding that 46 percent of the women who have abortions did
not use birth control the month they became pregnant). These numbers have remained unchanged
for at least a decade. Finding generally similar results are Jones, Darroch, & Henshaw (2002, 297).
For comparable data results from other countries, see Larsson et al. (2002); Rasch, Wielandt, &
Knudsen (2002, 296: tbl. II); Schunmann & Glasier (2006). Due to the widespread social disapproval
of recourse to abortion for birth control, in lieu of contraception, it is likely that such numbers
underreport the true incidence of the procedure under these circumstances.
40 Economists rightly observe that behavioral norms can influence conduct even when not internalized
at all, insofar as people simply desire the esteem of others who will reward conformity to such
norms, regardless of whether the conformist considers them morally compelling (McAdams 1997,
376–381).
124 ~ Osiel: Rights to do Grave Wrong
longer easily avoid detection and ethical scrutiny by others. In the middle of this
continuum, we find the right to declare personal bankruptcy or to decline
life-sustaining medical treatment (when one is not already hospitalized, at
least, and hence under close medical supervision). Some such rights are
“free-standing”, created on the basis of their intrinsic merits, such as the
right to decline medical treatment, predicated on our commitment to individual freedom. Others are reluctantly carved out as unavoidable exceptions to
legal duties, such as the right to kill innocent civilians (unintentionally) in war,
a qualification or caveat to the more central duty to directly target only
combatants.
As a mechanism of social discipline, stigma is relatively informal, certainly
compared to law. And stigma has little constraining effect when the targeted
party is not much dependent upon,41 and does not highly value membership
within, the group whose preferred practices are violated, whose norms that
party may even disdain (Goffman 1963, 6).42 Intrinsic commitment to such
norms may be weak or at least precarious. For instance, world opinion may
have been effective in limiting collateral civilian damage by American troops in
Iraq, Afghanistan, Pakistan, and Yemen only because the USA aspires to good
relations with these countries and to continued leadership within the international community.
The present problem might be seen as a particularly acute expression of law’s
perennial difficulty in distinguishing between closely related acts—some acceptable and others intolerable—of a given type. To address this difficulty,
we sometimes criminalize acts that are not wrongful, relying on judicial lenience
ex post (via doctrines of excuse) to attenuate law’s overinclusiveness ex ante. We
here focus on the opposite situation: where the law is underinclusive of our
regulatory concerns (i.e., overbroad in what it permits), because we believe that
other restrictive forces will come into play. At these points, the legal system
engages in self-limitation because we trust that social conventions and the
stigma attendant upon violating them will dissuade people from abusing the
expansive entitlements the law affords.43 In placing this measure of trust, we are
41 Horne (2009, 28–44, 59–63) (suggesting, from experimental data, significant correlations between a
person’s dependence on a group and adherence to its norms).
42 For an economic reformulation of such sociological insights concerning group dynamics, see,
Posner (2000) (examining conformist behavior in terms of a self-interest in signaling a low discount
rate on others’ judgments of oneself as an interactional partner).
43 When we place such generalized trust, most analysts agree, we ought to do so as an informed choice
among alternative forms of institutional design, such as state regulation and market competition
(Gambetta 2000, 213). Trust of this sort must be a prudent step toward managing unavoidable
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 125
sometimes woefully mistaken, however. The policy question then becomes: how
much trust should modern law repose in conventional morality and informal
professional practices, those reaching beyond requirements of formal ethics
codes?
There is certainly no reason to assume that the gap left by law’s underinclusion of morality’s claims will always be satisfactorily filled in the ways here
examined. The functionalist sociology which once posited that “society”
would inexorably ensure that “its needs”, or at least those of its “ruling classes”,
were somehow met was mistaken, because “long-term consequences do not
have explanatory power unless an intentional actor is present who deliberately
sacrifices short-term benefits” to that end (Elster 1985, 30). Most would agree
that many societal needs go unmet entirely.
An intriguing feature of rights to do serious wrong is that those who create
them are regularly conscious of formally authorizing conduct they themselves
regard as gravely immoral. They may do so, moreover, not as short-lived accommodation to ephemeral exigencies, or from a lack of current political momentum for better doctrine, but in a way that later legal tinkering will not much
redress, as they fully understand. Their motives need not reflect mere recognition of a practical need for compromise between political antagonists who
prefer the more straightforward paths of outright prohibition or unrestricted
authorization of the activity at issue. Such a right is therefore often not merely a
patchwork of philosophically irreconcilable commitments produced by brute
brokering among warring factions.
In all but inviting some highly unethical conduct, it undoubtedly portends
peril. Still, such a right often presents a fitting stance and coherent response to a
certain sort of regulatory predicament. This is the case where legal rules suffer
irremediable limitations in scope, yet the moral risks thereby generated will
nonetheless be substantially mitigated in practice by social conventions influencing how such rights will actually be put to use.44
complexity in the face of limited information about the competence and good faith of those on
whom we decide to depend. Trust is different in this respect from mere hope, a leap of faith, or
supine credulity. At times it is inevitable, a constitutive feature of modern society (Luhmann 1979,
24–31) (identifying the affinity of social trust with such aspects of modernity as the division of labor,
the differentiation of social spheres, and dependence on scientific knowledge, administered by
licensed professionals).
44 The extra-juridical forces we here consider might be described in various terms, including social
“practices”, “conventions”, “norms”, or “customs.” It is unnecessary to choose among these alternatives, for that would require taking sides within controversies among competing traditions of
social theory, disputes tangential to present purposes. Following Max Weber, we take an actor’s
behavior to be “social” if, in undertaking it, he gives consideration to others’ reactions, whether
before or after his conduct. A “practice” generally refers to a pattern of routinized behavior. An
126 ~ Osiel: Rights to do Grave Wrong
I.2 Methods for Restraining the Exercise of Disfavored Rights
Consistently with the law,45 our rights are deliberately constrained in five
ways,46 generally to ensure that we do not employ them to advance (what
others consider) wrongful ends.
First, at times we restrict public knowledge that a right exists. Our legal
system may generally presume a knowledge of the law, as when it declares
(with rare exceptions) that “ignorance of the law is no excuse”. Yet there are
clearly some situations where, to the contrary, we wish we could accurately
presume such ignorance. Here, we seek “acoustic separation” between the
rules governing our conduct, which we must know in advance of acting, and
other rules—frequently more lenient—governing its later judicial assessment,
awareness of which might sometimes best be hidden from us (Dan-Cohen 1984,
630–634). Unfortunately, such “decision-rules” may become known to those
who will be judged by them, thereby affecting conduct ex ante, as when wrongdoers plan their criminality in light of what they learn about indulgences within
the law of excuses (Dan-Cohen 1984, 641–642).
Yet it is difficult in any event to defend intentional opacity on such matters as
consistent with the rule of law.47 And limiting public awareness of pertinent
legal dispensations is impossible as a practical matter in many situations, where
the rights at issue spring directly from conduct rules and govern activities in
which right-holders take keen interest. It may take them a trip to the library to
learn the answers to their questions, but no one denies their right to conduct
that inquiry. Still, we may not make their effort very easy (i.e., no easier than the
law itself requires), and there is little doubt that the legal system, with a view to
influential account is Bourdieu (1977, 5–9, 43–66, 58–71) (emphasizing how social practices at once
define the limits of acceptable behavior and nonetheless authorize a measure of virtuosity in strategic
maneuver by those with a “feel for the game”). On social conventions, a widely employed approach
is Lewis (1969, 42–51, 78–79) (defining them in terms of how regularities of behavior, and expectations of such regularity, help solve coordination problems among a group’s members). The equilibria thereby established may be either functional or dysfunctional in relation to the interests and
ideals of those concerned.
45 We are not concerned here with the efforts at rights-suppression involving unlawful intimidation,
such as those employed for decades in the Southern USA to dissuade African-Americans from
exercising the right to vote. In their threat and practice of violence, such efforts were simply illegal,
rather than extra-legal in the sense of lacking formal juridical endorsement. Only in our discussion
of the right to decline life-sustaining medical care do we broach the possible acceptability of unlawful resistance to a right.
46 This typology builds upon and extends that of Waldron (2010).
47 Dan-Cohen (1984, 665–676) offers a defense of such “selective transmission” of legal information
about excuses. Others have found this convincing only with respect to defenses of excuse, not
justification.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 127
limiting our employment of certain “disfavored” rights, itself strives to limit
our knowledge of what those rights are.
Second, the scope of our own rights is often limited by our legal duties to
respect the rights of others.48 When there is widespread failure to acknowledge
and honor another’s rights, their effective exercise can clearly be much hampered. And if a relationship between A and B is closely regulated by law, then a
change in A’s rights often has direct implications for B’s duties. Enhanced legal
protection for the medical patient thus often entails greater obligations for the
physicians and nurses who treat her. The discretion of such medical professionals, and the rights on which such discretion depends, are thereby curtailed.
There can also arise “conflicts of rights”, i.e., when A has a right to do something that, without directly violating B’s rights, renders their exercise much
harder. This need not be intentional on the lawmakers’ part. Hence, an employer has a right to hire only nonunion labor if she so chooses, but this does
not prevent her employees from then exercising their own legal rights to form a
union. There is no logical inconsistency between these two rights, and in fact
neither was created with any intention to restrict, much less eliminate, the
other—a feature distinguishing this second type of rights-restraint from the
fourth, below.
Third, a right is subject to “internal” limitations on its scope, as by restrictions on when it may be exercised. This process of specifying the boundaries of a
right sometimes requires situating it within a broader body of rules serving
competing policies and principles. Thus, there is a legal right to drink alcoholic
beverages to excess, as long as one does not then proceed to drive an automobile
while under the influence.
Fourth, limitations on a right may be “external”, i.e., not with respect to
when it may be put to use or its substantive reach, but in how other rules are
intentionally designed to discourage its exercise, as through procedural impediments or limits on the remedies available for its breach. Tax law as well may
discourage the right by imposing high costs for making use of it. One may have
to take affirmative steps to claim an entitlement (to decline donation of one’s
organs upon death, for instance, when seeking a driver’s license), invoking it
expressly, where law will otherwise, as its default position, assume that one has
no intention to exercise it.
Fifth and finally, we restrain legal rights by engaging in moral criticism of
what we consider their irresponsible exercise, and thereby seek to persuade
others not to employ their rights in objectionable ways. We may do this
48 In Hohfeld’s influential typology, these are called “claim-rights”, which others have a duty to
respect, and with which others may not lawfully interfere (Hohfeld 1923, 36–54).
128 ~ Osiel: Rights to do Grave Wrong
individually or collectively, on isolated occasions or through customary practices defining and policing the boundaries of acceptable behavior in a given
community. Sometimes our criticism of another, for how she exercises
her rights, flows from an intuition that these rights imply correlative duties
not reflected in law. We later examine this possibility in considerable depth.
When there occur major shifts in moral opinion, persuasive efforts are frequently brought to bear against those initially disposed to exercise certain
rights. Such pressure may become so effective, for so long, that the right
itself falls into desuetude, rendering it judicially unenforceable. This occurred
in the early 20th century, for instance, with so-called “heartbalm” statutes,
establishing such causes of action as “breach of promise to marry” and “alienation of affections”. By that point, anyone seeking to invoke these rights in
litigation risked ridicule, contempt, embarrassment—frequent manifestations
of stigma.
We are prompted to employ the fourth and fifth types of rights-restraint
whenever we perceive major failings in the third variety of restraint, i.e., the
definitional and internal. In particular, where codification of the right has
failed to incorporate responsibilities we consider inseparable from its proper
exercise, we proceed informally in exhorting the right-holder to acknowledge,
and act upon these. Our ways of talking about this last type of restraint on
rights-exercise stand in much need of greater clarity and conceptual refinement.
It is therefore the chief focus of ensuing discussion. The other four kinds of
rights-restraint concern the limits that law itself places on our rights. Only with
the fifth type of restraint do we begin to shift focus toward extra-legal limits, i.e.,
not on the formal rights themselves but on how we choose to exercise them, in
light of further responsibilities that others informally ascribe to us. Such restraints originate in the social processes we now examine.
I.3 Dissuading the Wrongful Exercise of Legal Rights: Variations in
Legality, Efficacy, Intentionality, and “Internality”
The means by which we lawfully seek to dissuade others from exercising their
rights range along four further continua: their formal incorporation into law,
their efficacy, their intentionality, and whether they are internal to a social
practice so governed. The relations among these can be intricate. For instance,
the first and the second regularly diverge; constraints on a disfavored activity
may be formally codified into law but relatively lenient and hence inefficacious
in discouraging conduct, whereas informal exhortation, though nonjuridical in
nature, can be quite potent in deterring certain rights-claiming. It is therefore
misguided to focus primarily on the sheer quantity of law in a given area when
assessing such law’s true significance, as does some leading work in legal
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 129
sociology (Black 1976, 3–6, 12, 17, 19, 20–21). It surely warrants mention here
as well that powerful extra-legal pressures against the exercise of certain rights
often receive no legal recognition at all; more precisely, the law formally acknowledges their existence only in the course of committing itself to their
eradication.
The line between legal and extra-legal constraints upon the exercise of
rights is sometimes uncertain. Lawyers often feel authorized, even ethically
compelled, to apprise clients of extra-legal considerations bearing upon a
decision to exercise rights—as to initiate litigation, where that decision is
likely to curtail the effective availability of client rights in other respects.
Hence, plaintiffs’ counsel in antidiscrimination disputes regularly warn the
client that her labor market prospects are likely to be much impaired by
merely filing suit (Nielson 2010). In this way, willy–nilly, “officers of the
court”—and hence of the law itself—become reluctant vehicles for the articulation of social forces not merely external to the law, but actively hostile
to its promises.
Intentionality, the third factor, concerns the degree to which anyone consciously sets about organizing resistance to assertion of particular rights.
Formal legal restrictions on such assertion are almost necessarily intentional,
though there may be exceptional situations where the particular burden they
impose is inadvertent, because the right’s impingement is tangential to more
immediate regulatory objectives. Informal extra-juridical pressure may vary
considerably in degree of self-awareness. Where there is no legislative record
to consult, evidence of intention to restrict others’ rights is often difficult to
discern. This is especially so where such intention is unlawful and must
therefore be concealed, as where real estate brokers steered minority home
buyers away from white neighborhoods (42 U.S.C.A. § 3604(d) (2006)).
Intentionality is obvious, of course, when the right-holder actively asserts
his entitlement and immediately encounters overt resistance from others
openly identifying themselves as his opponents.49 In many situations of interest to us here, however, the desire to dampen others’ rights-claiming does
not advertise itself so transparently.
Where motives are inscrutable, the law often retracts its reach. There are
many situations, as with abortion, where our legal system simply cannot effectively determine motive in a way that would allow the law to be more ethically
discriminating. The law’s frequent inability to identify actors’ true motivations
is unproblematic where its purposes do not require distinguishing acceptable
49 Often such opponents are actually claiming, of course, that the person they resist does not truly
possess the right he thinks he does, in which case we simply have a difference of opinion about the
scope of the relevant legal right, a matter unrelated to present concerns.
130 ~ Osiel: Rights to do Grave Wrong
from objectionable aims.50 Problems arise, however, where motive is very important to law’s chief purposes and where such motive is particularly difficult to
infer from the evidence likely to be available.51 This is notably the case of such
“hate crimes” as genocide,52 though also for partisan redesign of legislative
districts. These unfortunate circumstances create discrepancies between what
morality is thought to require for adequate judgment of someone’s conduct and
what law can realistically deliver. The inadvertent result is a right to do wrong,
sometimes grievously.
Many sociologists of law would be quick to insist that important legal rights
can be effectively restrained without much self-awareness to that effect by culpable parties. This could be the case where the right-bearer confronts objective
yet nearly imperceptible features of social structure or an organizational culture
unreceptive to such rights.53 These forces may operate in subtle ways, well short
of overt hostility, and might therefore often remain elusive to empirical demonstration. Where this situation pertains, evidence of intentionality and efficacy
might radically diverge. In fact, the very absence of self-conscious effort to
impede the exercise of certain rights would make their suppression much
more effective. The inclination to moderate others’ rights exercise at such
times may sometimes simply constitute part of what Searle has called “the
background”, i.e., a set of “presuppositions, stances, tendencies, capacities,
and dispositions” that humans possess, but that are not intentional states,
even if they are sometimes called consciously to mind when circumstances
require.54
50 Criminal law thus regards motivation as generally irrelevant to liability; it is enough to establish the
defendant’s intent to commit a forbidden act or produce a prohibited result, whatever his motive or
purpose.
51 Usually, the law simply gives up here. Quixotically perhaps, it occasionally persists against the odds,
requiring clear evidence of a particularly insidious motive, however onerous to establish beyond
reasonable doubt.
52 For genocide, the defendant’s specific intention to destroy a protected group must be demonstrated,
though his actus reus will often be compatible with alternative motivations, such as to expel the
protected group from a given geographical area, i.e., “ethnic cleansing”. Such wrongful conduct will
often constitute a crime against humanity, that of forcible population transfer. So it would be
inaccurate to suggest that there is a right to engage in the underlying activity, the actus reus.
53 This was a central contention, for instance, of the amicus curiae brief filed by the Law and Society
Association and the American Sociological Association to the Supreme Court in Wal-Mart Stores
Inc. v. Dukes. The Court rejected that analysis, at 131 S. Ct. 2541, 2553–2554 (2011), though the
dissent endorsed it, at 131 S. Ct. 2564–2565 (Ginsberg, J., dissenting).
54 Searle (1983, 141–159) (employing the quoted words at various points). As Searle allows, such other
social theorists as Pierre Bourdieu and Michel Foucault employ analogous concepts to grapple with
much the same phenomenon.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 131
The plausibility of this scenario may sound uncontroversial, until damage
judgments in the mega-millions turn on its demonstrated relevance to real-life
disputes, as in the recent Walmart Stores, Inc. v. Dukes litigation. It remains
open to doubt, in any event, whether it is ultimately meaningful or methodologically defensible to speak in such a way, given the law’s standard evidentiary
expectations of plaintiffs. Especially troubling is how, in this type of argument,
large abstractions like “organizational culture” and “social structure” are often
invoked simply as brooding omnipresences hovering vaguely and malevolently
over any actual data evidencing the conduct and beliefs of relevant actors,
evidence bearing only the most uncertain relation to these. Though such sociological accounts are clearly positing some species of agency, it is a peculiarly
hypostasized, almost trans-human form of agency.
When deciding whether a particular restraint on rights-assertion is normatively sound, it is largely irrelevant that such restraint is or is not formally
incorporated into law, fully self-conscious, or even effective in influencing
actual conduct. In assessing the moral defensibility of these restraints, what
matters are the particular means and motives of rights-dissuasive efforts. A
sociolegal inquiry such as ours is necessarily concerned not only with situations
where societal push-back against the exercise of legal rights is salutary, but also
when it is not.
The fourth source of variation in how rights to do wrong are lawfully
restrained concerns the ways such restraints relate to a social practice whose
participants are thereby governed. Are these restraints internal to such a
practice, even partly constitutive of it, or are they instead overlaid upon it
by people and institutions not directly engaged in it, on the basis of standards not intrinsic to it? Still a third possibility: perhaps there is no discernible
practice even in play, with whose standards of excellence the objectionable
conduct could be considered consistent or inconsistent. When people are
reluctant to seek personal bankruptcy or undergo an abortion, for instance,
it would be difficult to describe their fears of social stigma or qualms of
private conscience as arising from any settled institutional practice. The
social and psychological processes at work are simply more diffuse, even as
they allow such a person to anticipate with considerable accuracy how others
would likely judge his or her decision.
Social practices everywhere—from local gossiping to multilateral inter-state
negotiations—combine behavioral norms (often clear) and methods for their
enforcement (sometimes strict) with ample opportunity for competitive positioning (frequently fierce). The latter, tactical calculations thus take place
within parameters established by the very “rules of the game” that themselves
constitute the practice, define its operative terms and conditions. These informal, extra-legal rules tell us both when it is acceptable (and not) to exercise a
132 ~ Osiel: Rights to do Grave Wrong
given legal right, and when we may realistically expect to escape serious sanction
for (even flagrantly) violating more formal, juridical ones.
There are certain forms of rights-restraint that emerge almost entirely from
within the very social practice inspiring the creation of its participants’ legal
rights as well. Diplomacy would fall into this category, because one cannot be an
effective diplomat without judiciously bridling one’s more aggressive inclinations in many ways, even when international law would allow them less inhibited rein. With its peculiar mix of private bluff and public breast-beating,
diplomacy both authorizes some extravagant gamesmanship and imposes genuine boundaries beyond which such posturing and dissembling may not stray, if
even the most artful practitioner is to retain any credibility from one situation
to the next, in what is after all an ever-ongoing game.55 In this manner, the
conventions of diplomatic practice constrain the rights of states and statesmen
to do wrong.
A second example of this type of rights-restraints would be the “bourgeois
virtue” of business prudence, in how it has been thought, from Benjamin
Franklin through Max Weber (McCloskey 2006, 2–5), to discourage investments recklessly indifferent to customers’ interests. Prudence in the investment
of others’ money arises from fiduciary duties not exogenously imposed upon,
but at least partly constituting this particular form of professional practice. In
this case, more than with diplomacy, the restraints are to a great extent
enshrined within the law, i.e., of fiduciary obligations.
In still other cases, however, restraints on rights-exercise interpose themselves from the outside, as it were, in that they do not derive from terms
intrinsic to any such practice. This is the case, for instance, when family members vigorously intercede to prevent a medical patient from exercising her right
to die, though she suffers no terminal condition. The extra-legal duties in play
at such times are chiefly those of the patient to herself, a matter no one would
describe as reflective of a social practice.56 If the family members feel themselves
under any moral obligation, it is primarily that of assisting the patient in
honoring her own, especially to young children. More plausibly, they are
simply manifesting their love rather than any felt sense of duty.
A physician’s intercession at such times could more credibly be described as
emanating from a longstanding social practice, one historically instilling in its
adherents a sense of duty to save patients’ lives whenever possible, at almost any
cost. That far-reaching understanding of the physician’s moral responsibility no
55 See, generally Nicholson (1939, 13–16, 34–55); Wood & Serres (1970, 161–246).
56 To be sure, Waldron would tentatively place the patient within the category of those with responsibility rights, a concept examined at length infra.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 133
longer finds unqualified reflection within modern law, however, which has
sought to redefine the terms of this practice (often unsuccessfully, we will
see) in ways decidedly narrower than enshrined in the Hippocratic oath. Still,
the frequency and efficacy with which physicians and family members conspire
to prevent nonterminal patients from exercising their right to decline essential
treatment warrants description of such conduct as an institutional practice of
sorts, albeit unacknowledged as such.
If rights to do grave wrong were pure “claim-rights”, then the law would
prohibit others from interfering with their exercise (Hohfeld 1923, 36–54).
Such prohibition might even extend to others’ efforts politely to persuade the
right-bearer to refrain from her intended conduct. None of the rights here
concerning us fall into that category, however.57 That they do not is almost
in the very nature of rights to do wrong, as we understand the notion. For these
arise precisely where we anticipate their exercise to be resisted, at times vehemently so, occasionally even vigorously obstructed (as when an otherwise
healthy person declines life-saving medical treatment).
I.4 The Inarticulateness of the Eloquent: A Cautionary Tale
The question of when and by what means it is acceptable to discourage others
from exercising their legal rights is a normative one, and of some practical
importance, on virtually a daily basis. That the question has not received due
attention, however, is apparent in the limits of our ability even to articulate and
discuss it. These failings are vividly revealed, to pick an illustration from recent
headlines, in the 2010 controversy over an initiative to construct a Muslim
cultural center, with a mosque, near the site of the former World Trade
Center. The public debate elicited, on both sides, some peculiarly ill-considered
intercessions from some of the most culturally refined voices in our national
life.
New Republic editor-in-chief Peter Beinart curiously proclaimed, for instance, “If you say that people have the right [to build the mosque/cultural
center], but they shouldn’t take advantage of that right, in fact, it seems to me
you’re denying them that right” (Citizens Against ProObama 2010). This assertion would seem to imply that it is never permissible to question any exercise
of legal right on grounds of prudence, social sensitivity, wisdom, or moral
defensibility, a position Beinart obviously does not hold. For instance, on
many American university campuses, those of Beinart’s political orientation
often seek—with surpassing efficacy—to discourage the exercise of
57 There do exist limits, to be sure, on the steps which physicians and family members may lawfully
take, we shall see, to hinder patients seeking to exercise the right to die.
134 ~ Osiel: Rights to do Grave Wrong
constitutional speech rights with respect to the subject of affirmative action, by
those who oppose such programs. Speech of this variety is discouraged by
explicit reference to the alleged need for emotional sensitivity toward local
beneficiaries of that policy.
Opponents of the mosque’s construction offered little better. While acknowledging their legal right to build, Charles Krauthammer—whose Washington
Post columns never betray the slightest suggestion of theological inspiration—urged the developers to manifest greater “respect for the sacred”, and
even suggested that their intentions for the site would amount to “sacrilege”
(Krauthammer 2010). This is odd wording for someone well-steeped in liberal
political theory,58 an enterprise averse to such invocations of religious language
in public argument. Krauthammer might have sought to proffer a liberal theory
of “sacred” space, or at least of space ritually resonant with liberal value. That
would have allowed a more earthly, secular argument for delimiting the morally
acceptable uses of such symbolically charged or semiotically “enchanted” terrain, if one may loosely so characterize the site. This could have presented
Krauthammer a difficult but worthy philosophical challenge. He did not attempt it.
It is tempting simply to dismiss both authors’ unpersuasive, even histrionic
remarks with the charitable concession that, for neither of them, was this his
finest moment. Yet their common failure suggests that the problem resides in
the limitations of our available vocabulary for grappling with the very notion of
a right to do serious wrong, and so runs deeper than such momentary lapses in
reasoning by prominent public thinkers. Wherever one comes out on this particular controversy, we should surely be able to discuss significant moral questions, those the law undoubtedly touches but leaves partly unresolved, without
either calling in divine thunderbolts against our opponents or summarily dismissing their arguments as pure bigotry, as if appeals to graciousness or solicitude for others’ feelings of grief could in principle have no legitimate place in
public conversation. Accusations of bigotry were common from those defending religious liberties of the mosque’s imam and developer (Kristof 2010;
Zakaria 2010). Yet if bigotry were indeed the only source of possible doubts
about the wisdom of the mosque’s selected site, then the considerable majority
of polled Americans who opposed the location would logically have to be
condemned as bigots. Allegations of this sort are not particularly conducive
to civil public discussion.
Even a supremely eloquent President was at a loss for words to articulate
anything more thoughtful or determinate than, on one day, unequivocally
58 Krauthammer read political theory at Oxford’s Balliol College, writing his masters thesis on J.S. Mill.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 135
celebrating the religious freedom of the mosque’s sponsors while, on the very
next, embarrassingly insisting upon the qualification that he “was not commenting. . .on the wisdom of the decision. . .” (Stolberg 2010). The wisdom of
the decision was, however, the only matter in contention, since no one had
denied the legal right to build a house of worship on the site. The President’s
second interjection therefore failed to join issue with anyone’s actual concerns
(about wisdom), just as his first (about law) was—however principled and
passionate—both obvious to all and entirely off-point.
The absence of a public discourse—even a preliminary vocabulary—for the
notional possibility of something like “legal-rights-are-maybe-being-invokedwrongly” was painfully apparent throughout this disappointing episode. It
surely behooves us to find a language in which such a discussion might be
more fruitfully conducted. The present inquiry is a modest invitation to that
end. All of our chief illustrations of rights to do serious wrong display this same
perplexing property: they arise in situations that elicit strong moral intimations
of an accompanying duty, which not only goes unacknowledged by law, but—
still more distressing perhaps—lacks any satisfactory terms of public
articulation.
I.5 How We Talk About Rights to Do Wrong: Beyond the Constitution
At first glance, the very idea of “disfavored” rights may seem counterintuitive.
In my teaching experience, it seems especially odd to those undergoing socialization into the profession, eager young people for whom legal rights all but
exist to be robustly exercised; to them, the possibility of official or societal
disparagement of rights-exercise is inherently suspect, if not simply perverse.
This view is perhaps carried to extremes in the rhetoric of organizations like the
A.C.L.U.,59 which implies that highly offensive speech, in particular, is not
merely deserving of defense as constitutionally protected, a necessary evil regrettably to be endured, but something to be celebrated or encouraged. In fact,
we are somehow deficient in our appreciation of such rights if we do not
regularly, actively occupy the discursive terrain marked by their outer limits.
The situations here at issue range far afield. One obvious reason our law
allows activities widely considered wrongful is that they are associated with a
fundamental constitutional right that may not be unduly “burdened”. Yet our
chief examples will suggest that such constitutional entitlements by no means
exhaust the category of rights to do serious wrong. This broader sense of the
term finds reflection in how nonlawyers appear to understand it within their
59 AM. C.L. UNION, http://www.aclu.org.
136 ~ Osiel: Rights to do Grave Wrong
“ordinary language”.60 Common parlance proves a better guide to the present
inquiry, in fact, than legal scholarship. For lay discourse readily recognizes what
such scholarship, with its constitutional preoccupations, does not: that some of
the most powerful burdens we place upon the exercise of rights emanate from
the social order, not from the state.
This is true, at times, even with respect to rights against the state. Regularly,
the state is even constitutionally precluded from prohibiting efforts by third
parties seeking to impede the exercise of certain rights, as when one set of
demonstrators, supporting a given policy, seeks to hold a protest against a
simultaneous demonstration by opponents of that policy. At such times, constitutional law allows the state to regulate the use of public space by both
groups, where necessary to prevent violence between their members. But the
state may not preclude the second group, through its own public demonstration, from discouraging successful demonstration by the first group, as by
seeking to heckle its speakers or drown out their speech with louder, amplified
speeches of its own. The state’s mandatory inaction, not its action, is what then
hampers rights-assertion, and such hampering has found expression not in law
but through social organization and mobilization. For these related reasons, the
present inquiry pays little attention to constitutional law (where our issues are
already well-mooted), and instead brings a number of disparate doctrines and
social practices into a common field of vision, requiring that we re-examine
these in novel ways.
Our chief interest lies in why we sometimes neither simply prohibit nor
permit an activity, but combine a dispensation to engage in it with its active
discouragement. We are not concerned with the narrower question, widely
studied, of what standards apply in determining whether such discouragement,
when official, is unconstitutional. Constitutional rights are not the only basis
for restraining the state from more onerously burdening morally suspect activities, just as outright prohibition is by no means the only (or most prevalent)
method for inducing people to abandon them.61 The First Amendment—as a
restriction on what the state may do to establish orthodoxy of opinion—has
little to say about methods for dissuading adherence to a particular viewpoint,
or for discouraging participation in a given practice, when such methods do not
60 As the name suggests, this approach seeks to discover the meaning of verbal expressions by examining the range and implications of their usage within common speech (Austin 1975).
61 Our theoretical concerns extend not merely beyond constitutional law, but beyond law as such. For
as Donald Black writes of “the sociological study of moral phenomena” such inquiry “begins with
the observation that law . . . is a comparatively small part of this subject matter”, compared to other,
non-juridical forms of social control (Black 1998, xxiv).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 137
amount to official censorship.62 States instead employ a variety of indirect
stratagems, best described as symbolic or semiotic, aimed at inducing people
to think and feel differently about the officially discouraged activity. Particularly
effective here have been policy efforts to combat self-destructive behavior
among young people, by correcting their assumptions about the frequency
among peers of such conduct, i.e., binge drinking, smoking, and illicit drug
use (Perkins 2003). All this is not to deny, of course, that cultural norms often
prove resistant to such conscious efforts at their legal manipulation, including
efforts to encourage people to employ informal sanctions against others’ undesirable conduct.
Still, through such methods, the law of discouragement, as it might be called,
often operates more subtly than we generally suppose, in defining and refining
its multiple complex ends, as well as in selecting among alternative means for
their realization. States have discovered that the best way to dissuade people
from engaging in a disfavored but permissible activity is frequently to alter how
it is interpreted. Officials may seek to avoid outright prohibition (since unnecessary, though not unconstitutional), because—by lending a transgressive
cachet to the activity, turning it into “forbidden fruit”—this sometimes proves
counterproductive.
This sort of “backlash” effect has a long history. In medieval and early
modern Europe, for instance, it was the very effort by Catholic prelates to
suppress public drunkenness during Carnival that lent such simple, “innocent”
indulgence an element of social protest it would not otherwise have acquired,
but consequently did thereafter (Burke 1978, 207). For that matter, the frisson of
transgression largely explains the fascination among micro-sociologists in the
1960s with the right to be rude, as well as the long-standing A.C.L.U. rhetoric
(arising in the same years) celebrating the right to engage in offensive speech. A
thumb in the eye of social complacence in general, and of bourgeois decorum in
particular, was always the lurking subtext in both of these period discourses.
Any quixotic effort to prohibit of such conduct outright would only enhance its
licentious allure.
In placing the emphasis where we do, our aim is not to minimize the importance of constitutional law. It is rather to suggest that what we already accept
as normal within that legal domain actually operates much further afield, where
we should become equally comfortable with acknowledging and exploiting it.
We are, in other words, already familiar in one limited locale with what might
be called “legally authorized, but socially inhibited wrongdoing”. That same
62 Lessig (1995, 1016, 1034–1039, 1042) (indicating how prohibition of disfavored speech through
direct censorship is neither the most common nor effective method by which public authorities
establish orthodoxies of viewpoint or of acceptable behavior).
138 ~ Osiel: Rights to do Grave Wrong
phenomenon can merely be found at work in other legal areas as well. At times,
in fact, the same principle of antipaternalism that leads constitutional law to
stay our impulse toward prohibiting objectionable conduct impels even greater
self-restraint than the Constitution itself requires, simply as a matter of moral
principle and public policy. There are still other reasons why the law curbs our
often-powerful disciplinary impulses, we will see.
Even when we reach instinctively for the Constitution, as to defend a right to
burn the U.S. flag or that of Nazi Party members to march through Jewish
neighborhoods, there is more at work here in surreptitiously inhibiting our
regulatory proclivities. We implicitly know in the back of our minds that few
people are likely to exercise such a right, and that if many more were to do so,
we would almost certainly have to reassess its defensibility, curtail its scope. The
right of people to organize a Nazi political party means something quite different in a society where that type of organization has never posed any serious
threat to constitutional democracy than it does in a country like contemporary
Germany, where the relevant legal rules, as on hate crime as well, are therefore
quite different (Weil 1982, 987). It is only because we can comfortably take for
granted that extra-juridical restraints are in place on such people, and on those
they might otherwise successfully recruit, that we Americans can afford to be so
indulgent in law’s treatment of them.
The processes at work in such situations are remarkably similar to those
where the Constitution does not speak at all to whether we may seriously restrict a morally suspect activity. For instance, American testamentary law,
unlike that of most Continental Europe,63 allows parents to entirely disinherit
their children.64 As with the flag burners, here too we trust to social conventions
for enforcing common morality, to ensure that complete disinheritance does
not often occur in practice; we assume that this will happen only when an adult
child has done something so awful as to render the parent’s unusual decision
defensible in the circumstances, ones the law cannot adequately define and
delimit ex ante.
In altogether ignoring situations where disinheritance is socially acceptable,
the European approach is too restrictive of personal liberty, we suspect. Here,
the antipaternalism principle, entitling people to do odd and insensitive things
with their financial legacy, is almost certainly in play—on terrain decidedly
beyond the reach of constitutional law—in curbing our legislative inclinations.
The extent of our apparent American commitment to that principle, unusual by
international standards, combines with the difficulty of adequate legislative
63 Digests of Laws: International Section: Estates and Trusts (2006).
64 Digests of Laws of the States: Estates and Trusts (2006).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 139
drafting and our assumptions about informal constraints on right-bearers to
induce us to stay the law’s regulatory hand. We get to have it both ways: we
proudly enshrine our libertarian longings into law, if only in certainty that it
will virtually never be invoked. The resulting equilibrium, of sorts, has proven
stable.
I.6 Rights to Do Grave Wrong as a Conflict of Law and Morality
Our central question might be seen as involving a conflict between law and
morality. Most such tension, however, deals with two situations quite different
from the present: where law either prohibits a given act but morality requires it,
or where law requires the act but morality forbids it. In both cases, the actor
must choose between obeying the law and answering the claims of morality
(Greenawalt 1989, 3). We are here concerned, however, with the situations
where the law authorizes an act which it may also inhibit and that community
morality may further hinder, often decisively.
The right-bearer in our cases does face a choice between what law allows and
morality discourages. Yet whether or not to obey the law—with all the moral
gravity of such a decision—is simply not at issue, since he violates the law in
neither case. The same is true of those who would lawfully seek to discourage
such a person from exercising his legal rights, where such exercise is at odds
with moral convention, societal expectation. In any event, the predicament an
individual confronts at these moments—i.e., whether to exert or forgo her
rights—is (though not inconsequential) less significant for present purposes
than the larger question of what place and purpose this peculiar species of rights
occupies within our legal system at all.
Still less are we concerned with whether the law should prohibit personal
conduct that many consider immoral.65 In debates about the “legislation of
private morality”, the charge of philosophical liberals, at least, has always been
that law’s prohibitions often remain seriously overinclusive vis-à-vis morality,
proscribing conduct which—though arguably wrongful—should be allowed.
Here, in contrast, we are concerned with situations where the law is intentionally underinclusive in relation to conventional morality, and where there is
generally no overpowering cry to enlarge the scope or stringency of law’s prohibitions. The policy instruments in our cases do not involve criminalization,
moreover, and hence do not present the acute concerns about paternalistic
coercion raised by this prevailing method of “morals legislation”. We will
65 That question has long exercised conservative thought, in particular. For contemporary reassessment of the historical debates and an argument for their continued relevance, see George (1993,
48–64).
140 ~ Osiel: Rights to do Grave Wrong
furthermore accept that the law is generally correct in permitting the disfavored
conduct examined here, inquiring then into the relation between the reasons for
and the mechanisms of its simultaneous authorization and discouragement.
In this respect, our concerns and approach differ from the classic law of
equity, frequently defended as an effort to prevent people from exercising
their legal rights in ways contrary to public conscience (Klimchuck 2011, 1–
2, 17–18). Chancery Courts were created, in part, precisely to accord their
judges the authority to correct the common law by way of recourse to public
morality, in circumstances where lawmakers would likely have regarded the
defendant’s exercise of his common law rights as wrongful. The jurisprudence
of equity thus differs from the present project in its commitment to fully
reintegrating the claims of morality—acknowledged as persistent and legitimate, albeit doctrinally elusive—into judicially enforceable norms.
There is no serious discussion of our present concerns within the field of
philosophical ethics, even the subfield of so-called applied or practical ethics.
One finds intense preoccupation there, to be sure, with the way in which many
forms of conduct, currently lawful, are incompatible with critical morality,
rightly understood. Yet one discerns no interest whatever in whether such
critical morality, as it bears upon the questionable practice, finds any reflection
and endorsement within the mores of any existing community, either where the
conduct occurs or in some wider world.66 One reason why this line of scholarship is incurious about the relation between law and mores is that the particular social practice it seeks to criticize often finds ample endorsement within
both.
Many ethicists would wish to subsume the present inquiry under the rubrics
of “what we owe each other”67 or simply “what morality and justice require of
us”. These formulations are too broad, however, for they slight the more specific question of what place ethical considerations should occupy in our assessment of when and how it is acceptable to dissuade others from exercising
particular legal rights. The insufficiency of philosophical ethics here is apparent
regardless of whether one understands morality in Kantian or Benthamite
terms, its two most familiar forms. Thus, where a specific legal right reflects
strong deontological commitments to whoever holds it, its exercise may threaten harmful consequences to others, leading them to discourage him from so
conducting himself. In terms of moral theory, one could say that the law here
creates a deontological right to do consequential wrong. For instance, the
66 A rare exception is MacIntyre (1981).
67 Scanlon (1998, 4) (inquiring into “what reason the fact that an action would be wrong provides me
with not to do it. . .”).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 141
international legal prohibition of torture rests on deontological commitments
concerning inherent human dignity. These are at times inconsistent with concerns about public welfare. Hence, when the presidential administration of
George W. Bush authorized interrogation practices involving or approximating
torture, the lack of public uproar revealed that there exists a strong strain of
consequentialism within common morality, inducing many Americans to judge
the defensibility of such practices by their eventual results, i.e., by whether or
not they proved to elicit information helpful in preventing further terrorist
attacks.
Conversely, if the legal right at issue was drafted in light of a consequentialist
understanding of morality, then that right may sometimes permit certain conduct that a Kantian would regard as intrinsically wrong, and so would seek to
discourage the right-holder from undertaking. This entire way of approaching
our concerns leads nowhere, however. It inevitably reduces the matter to deciding which moral theory we should adopt and choose to live by. Yet a moment’s
reflection reveals that, as Elster once casually put it,68 it would be completely
“nutty” for anyone to attempt to live her life, much less organize an entire
polity, in perfect accord with the dictates of either clashing mega-theory of
morality. Conventional morality itself captures and reflects this fact in clearly
encompassing both welfarist and nonwelfarist elements, albeit within no readily
discernible structure.
Moral theorists themselves have failed to offer any plausible compromise
account of when and why either theory should take precedence over the
other, given that neither can be convincingly banished from the field of our
concerns. It would take just such a theoretical accommodation to tell us when
we should discourage the right-bearer from exercising his deontologically
prompted entitlement in a manner harmful to others, and from employing
his utilitarian-inspired right in a way at odds with others’ deontological
claims upon him. In its failure to offer any such demarcation of conflicting
normative domains, moral theory asks us to fly too high above the ground
where we and our law confront real ethical predicaments.
This is clear as well in how such lofty theory would deal with the fact that the
conduct potentially to be discouraged in our cases is already lawful within a
country whose enactments emerge from a democratic process. The philosophical response has been to accord either no theoretical weight whatever to this
fact or only a weight fixed ex ante and uniformly for all such democratically
generated rights. The question of which rights may defensibly be discouraged by
what means under which circumstances is certain to require somewhat different
68 Oral communication, seminar, Paris, May 2009.
142 ~ Osiel: Rights to do Grave Wrong
answers in the variety of contexts to which it pertains. Such an inquiry thus may
not be assimilated, as some would do, to a more general inquiry into “the
authority of law”, with a single answer attainable in advance of inquiry into
particulars (Raz 2009, ix). In other words, we are not interested here in the
measure of moral authority we should grant to law as such,69 but in how much
to accord specific legal rights in given situations, where these rights appear likely
to be enlisted in service of moral wrong.
In speaking of morality, we do so throughout in a sociological register, intending what legal theorists sometimes call ordinary or conventional morality,
as distinguished from critical morality.70 Ordinary morality refers to prevailing
belief (sometimes inexplicit71) about what morality permits or requires,
whereas critical morality describes the claims of a purportedly true or genuine
morality, regardless of popular opinion on the matter. The present focus on
conventional morality follows naturally from the method of ordinary language
analysis, since it is in common parlance that prevailing views about morality are
most clearly manifested.
It is sometimes admittedly difficult to ascertain the content and shifting
contours of prevalent moral views, especially where public controversy surrounds a given issue. When there exists no general agreement on what ordinary
morality allows, it cannot be meaningfully compared with requirements of the
law. This concern arises when we find intense public disagreement about the
moral acceptability of a given action. The opposite situation also imposes some
limits on the scope of present inquiry. Much of contemporary law—in the
energy and environmental areas, for example—regulates activities so specialized
and arcane that, once immersed in the details necessary to understand what is
truly at stake, one could hardly speak confidently of any conventional morality
at all, certainly not as reflected in ordinary language use by the general
population.
Conventional morality fails to speak at all to other forms of lawful but suspect economic activity, not because of their complexity, but simply because they
elude public consciousness entirely. Such is surely the case, for instance, with
69 At this level of generality, in fact, a satisfactory theory of political obligation may simply be impossible, as some leading theorists now conclude (Klosko 2011).
70 “To explain what people actually do, we need only appeal to beliefs that people have about what is
correct, genuine, and the like. . .Explanation never needs to take anything from the container
marked ‘validity, correctness, etc. . .’” (Turner 2011, 186–187).
71 As an anthropologist writes—evocatively, if somewhat imprecisely—“the ‘ordinary’ implies an
ethics that is relatively tacit, grounded in agreement rather than rule, in practice rather than knowledge or belief, happening without calling undue attention to itself” (Lambek 2010, 1–2). In certain
non-Western cultures, in fact, the matters here in issue are apparently so thoroughly tacit that there
exists no word for morality or ethics per se (Howell 1997, 1, 12).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 143
the most sophisticated methods by which lawyers structure large, novel transactions so as to minimize tax liabilities.72 Some would go so far as to say that,
insofar as such imperceptible but pervasive business practices define contemporary global capitalism to its core, any study of rights to do serious wrong that
ignored them would grossly exaggerate the efficacy of conventional morality as
a counterweight. Yet these business practices, when brought to official attention, often do not withstand close judicial scrutiny; they survive precisely because, and only for as long as, they continue to lurk in crepuscular corners. If
they are legally insupportable in the end, then they simply lie beyond present
concerns.
This cannot be said of certain practices by very large businesses, especially
financial institutions, whose lawful conduct poses serious dangers to the economy at large. These are risks that such corporate behemoths virtually knew they
would probably not be required to entirely shoulder, because legislators would
regard them as “too big to fail”.73 Until recent years, such matters too, like
complex corporate tax planning, lay well beyond the compass of common
morality. No longer. We here encounter a genuine species of right to do
wrong insofar as most people would today regard such recklessness as ethically
objectionable. This is because, while the novel financial practices proved highly
profitable to those performing them, it was reasonably foreseeable that if they
went awry on a large scale the result would be major hardship for many innocent people, even as the parties responsible would likely be rescued from public
coffers.74
This is yet another instance, moreover, of how the informal push-back
against the wrongful exercise of legal rights can be stunningly ineffective, in
failing to induce the measure of financial prudence that legislators, when deregulating financial markets, likely anticipated. Many economists as well, in thrall
to the efficient market hypothesis, anticipated that prudential considerations
alone would sufficiently discourage excessive risk-taking—not because it was
widely considered immoral, but simply because it was inconsistent with the
enlightened self-interest of these institutions and investors themselves, presumed intelligent enough to adopt a longer view of where those interests lay.
Such is the nature of bourgeois virtue, traditionally understood—and traditionally considered sufficient as a morality for the marketplace. In other words,
neither deeper sources of private conscience nor more punitive measures of
72 An illuminating study of this process, by a leading social scientist, is Braithwaite (2005).
73 McKee & Lanman (2009) (quoting Alan Greenspan as endorsing this analysis).
74 Such situations of reckless, large-scale risk imposition—lawful but widely thought unethical—can
be fairly described in terms of moral hazard, as many have observed.
144 ~ Osiel: Rights to do Grave Wrong
public stigmatization were thought necessary to discourage wrongdoing. In any
event, these phenomena are not merely elusive to the law, but too mushy to be
statistically modeled.
I.7 The Social Fragility of Individual Rights
Scholarship in “law and society” might initially seem a natural place to
look for discussion of present concerns. Yet it is virtually absent there.
What one does find is the frequent, related insinuation—not quite an argument, really—that there is something wanting or inadequate about apprehending and asserting one’s experience of discrimination (racial, gender,
or disability) in the law’s individualistic terms, when such victimization is
an expression of larger structures and practices embodying and reproducing
it.75 It is apparently wrong, in short, simply to invoke one’s own legal
rights when institutional change is necessary.76 The worthy victim of discrimination, we are told, is in any event unlikely to pursue his individual
claims, i.e., unless she comes to perceive them as part of a broader pattern,
which she learns to recognize and resist only with the active support of “a
wide social network” of fellow victims—and legal activists, egging them on
(Felstiner, Abel, & Sarat 1980, 644).
To be sure, the law and society canon does regularly suggest that individuals
are too slow to claim their antidiscrimination rights and, by implication, should
not so readily succumb to constraining influences within their social environment (Felstiner, Abel, & Sarat 1980, 641).77 A variety of social forces do operate,
elusively but potently, to discourage victims from taking even the first steps
down the long, frustrating path from the injury itself to “naming” it as wrongful, identifying and “blaming” a culpable party, to formal “claiming” against
that party (Felstiner, Abel, & Sarat 1980, 631).78
75 See, e.g., Nielsen, Nelson, & Lancaster (2010). From a large data set of case filings, the authors, who
are leading “law and society” scholars, conclude: “Employment discrimination litigation is not so
much an engine for social change. . .as it is a mechanism for channeling and deflecting individual
claims of workplace injustice” (id. 196). “The mere existence of this [individualized litigation]
apparatus may displace other possible strategies of reform” (id. 180).
76 And it is presumably acceptable for scholars implicitly to discourage assertion of “atomistic” rights
when broader goals of social transformation require more collective forms of mobilization.
77 A longstanding line of sociolegal research therefore highlights “the capacity of people to tolerate
substantial distress and injustice” without seeking legal recourse (Felstiner, Abel, & Sarat 1980, 633).
78 Such research invites the normative inference, stated openly on occasion, “that too little conflict
surfaces in our society, that too few wrongs are perceived, pursued, and remedied” (id. 632) (emphasis in original).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 145
Yet if there are circumstances where it is ever fitting and proper for the
potential claimant to demur from asserting her full battery of legal rights, we
never learn of them in this considerable literature. Admittedly, this may be
because the particular rights under investigation in these studies are ones
that should never be foresworn, their violation never endured. But we would
then need an account of why certain rights and not others fall into this category,
an analysis not offered anywhere in this body of scholarship.79 From its standpoint, in sum, informal encumbrances on exerting one’s rights (i.e., of employees against employers, minorities against majority institutions, women
against men) are bad.80 Put bluntly, any social impetus to invoke one’s individual rights is fully commendable only insofar as it reflects and fosters political
solidarity with others whom the right-bearer should recognize and embrace as
comrades in arms.
Admittedly, this scholarly tradition does not purport to directly address our
specific question about when it might be wrong to exercise one’s rights, or to
dissuade others from invoking theirs. Nonetheless, the canon of law-andsociety does implicitly offer the particular answer just outlined. In relying so
heavily on broad-brush sociological categories, however, it lacks the measure of
moral discernment necessary to make meaningful distinctions between the
complex array of relevant situations, even among the small subset of rights
we here examine.
79 Antidiscrimination claims, in particular, are prominent among those the discouragement of which
might initially seem indefensible. Sociolegal scholars appear especially concerned with how many
such claims are winnowed out at early stages from the disputing process (Nielsen & Nelson 2005,
22–23) (stressing that only five percent of people with employment grievances file a lawsuit). The
intensity of this scholarly concern presumably reflects an assumption that a great number of the
lawsuits thus foregone are meritorious. Several credible studies suggest otherwise, though data are
mixed. Plaintiffs in antidiscrimination litigation prevail much less often than those in other civil
lawsuits (Clermont & Schwab 2009, 128–129) (reporting that 51 percent prevail in other such
litigation but only 15 percent in suits alleging discrimination); Eisenberg (1989) (finding low success
rates for civil claims.). In fact, the percentage of antidiscrimination plaintiffs winning monetary
awards has declined, as has the median amount of such awards (Nielsen & Nelson 2005, 38).
80 The assumption that any significant injustice is necessarily, inherently “systemic” discloses itself,
upon any close reading, as a ubiquitous undercurrent in sociolegal scholarship. This assumption is
frequently defended by reference to the alluring aphorism that one’s “private troubles” with the
world inevitably spring from deeper “public issues”, as the radical sociologist C. Wright Mills
famously put it (Mills 1959, 3–8). The possibility that one’s personal problems—with one’s employer or spouse, for instance—may sometimes in fact not be significantly attributable to deeper
institutional conflicts or social practices is simply, summarily ruled out by this ex cathedra stance.
For many, it is in any event less an empirical hypothesis—subject to scientific assessment and
potential disconfirmation—than a badge of vocational self-definition, resting on bald assertion as
an axiomatic principle of social ontology.
146 ~ Osiel: Rights to do Grave Wrong
PART II
II.1 The Modern Ascendance of Positive Law and the Fateful Decline of
“Mores”
The preceding objections to our argument suggest another reservation, likely to
be voiced especially by a “positivist” legal centralism81: that the moral standards
people generally espouse and apply to one another in their informal relations
display, in J.L. Austin’s words, an “uncertainty, scantiness, and imperfection”
(Austin 1885, 294–295) rendering them unworthy of legal solicitude, a view still
upheld by many. A contemporary author thus contends that “[t]he more coherent and consistent a legal system, the less the need for. . .customary rules and
practices”, in part because “the relevant customs prove to be those of an influential group of insiders”.82 As a means for ensuring private compliance with
prevailing mores, public shamings, in particular, “typically involve a type of
mob justice and are problematic for that reason alone”, writes Martha
Nussbaum, echoing James Whitman.83 “Justice by the mob is not the impartial,
deliberative, neutral justice that a liberal-democratic society typically prizes”
(Nussbaum 2004, 233–234).84 In this view, the law becomes the only reliable
basis and legitimate source of public order, with other influences on our social
conduct always potentially, perilously, at odds with our commitment to “rule of
law” values.
This is less a concern where restraints upon the exercise of a given right
emanate from within the law itself, as when an activity is discouraged through
high taxes, than when the chief encumbrances lie outside the legal system altogether. The latter situations will be of greater interest here, for this reason. At
such times, the legal system must essentially ask itself how much trust to place
in processes largely beyond its immediate reach, even if the actors and institutions engaged in these encumbering processes are—at several steps remove—
themselves partly constituted through law. Recourse of this general sort is by no
means alien to our law, of course. It is very common in tort, with regard to
community standards of reasonable care, and is at least formally authorized for
81 “Positivism” means very different things to different people. I here take it simply to mean a preference for relying on positive law over other means of social ordering. This does not correspond to
most usages of the term within contemporary legal philosophy.
82 Perreau-Saussine & Murphy (2007, 1, 2).
83 Whitman (1998, 1059, 1089)
84 See also, Markel (2001, 2222–2229) (arguing that concern with impartiality requires punishments to
be administered by the state); Posner (2000, 88–98) (observing that unofficial “shaming sanctions”
often target the wrong people—on the basis of identity rather than acts—or inaccurately calibrate
the magnitude of penalty).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 147
contract interpretation in light of industry custom. In both these situations,
however, the law continues to impose certain outer limits on what social convention may rightfully endorse, even though such limits are almost never
invoked, much less successfully, in litigation.
As regulatory strategy, reliance on extra-juridical counterpoise depends on
diffuse social trust more than does either state regulation or competitive markets. And where ordinary morality is as fitful, imprecise, or corrupt as positivists
like Austin assume, such trust will fail entirely as a regulatory approach. Our
chief concern—as much sociological as jurisprudential—is therefore to identify
the circumstances in which a legal approach so reliant on informal constraints
against the wrongful exercise of legal rights is workable and defensible. This
formulation is admittedly one that almost anyone but a law professor would
regard as a monopolizing delusion of grandeur on our part. Others would
surely find the opposite question more compelling: what portion of the
larger normative order and its enforcement ought we to entrust to the legal
system and the professionals claiming exclusive authority to administer it?
Indicative of such hubris is that the brief flurry of prominent legal theorizing
a decade ago on the subject of “law and social norms” generally displayed much
greater interest in how law might transform norms than in how they often
render law (and thereby those practicing or professing it) dispensable.
It was occasionally acknowledged that reliance on norms is at times more
efficient than on formal legal regulation (West 1997, 187–195; Ellickson 1991,
167–183). Yet the reasons for the relying on norms rather than law cannot
entirely be assimilated to considerations of efficiency, we shall see. In any
event, such studies were chiefly concerned with accounting for when, within
a self-enclosed community, disputants seek redress in legal venues and when,
alternatively, via informal mechanisms. These inquiries were largely unconcerned with explaining the extent of law’s formal reach into a behavioral
realm already governed by social norms, a question about which sociologists
of law have shown greater recent interest and insight (Feldman 2006).
At this point, skeptics will inevitably also wish to dredge up the familiar
story about how modernity itself—whether defined by secularization, the
capitalist cash nexus, anomie and atomization, or bureaucratic rationalization—has supposedly so eroded the social basis for any meaningful common
morality that law’s hope of reliance upon it, in ways here suggested, is
foredoomed to failure. This view is demonstrably exaggerated, and not
only with respect to the class of situations here examined.85 The effective
85 Virtually the entire field of urban sociology was long dedicated to refuting the conventional wisdom
that urbanization diminishes the strength of social ties and the feelings of moral obligation to others
148 ~ Osiel: Rights to do Grave Wrong
moral conventions on which rights to do wrong depend for their defensibility, though perhaps sometimes those of “society” in general, often turn out
to be endorsed chiefly by professional communities, such as physicians and
military officers, among whom shared standards of propriety, grounded in
robust interactive networks, often develop. Whether these social structures
and the normative habitus they permit are, for a given problem, sufficient to
bear the regulatory weight the present approach places on them is an empirical question. The answer to it will have implications in turn for assessing
the usefulness of the theory, its range of practical relevance.
Despite what we have just said, the nature of modernity and the quality of
moral experience it affords are not irrelevant to our story. Some have observed
that modern morality alters the relationship, in particular, between conductand decision rules. It was much more common in traditional Jewish law, for
instance, than in secular legal systems for conduct rules to forbid acts that
decision rules told judges not to punish (Wozner 2000–01, 49, 64–66).
Because there was not much “acoustic separation” between the two species
of rule, people were aware, more often than today, that courts did not actually
discipline certain formally prohibited acts. For instance, if a woman remarried—years after her first husband had disappeared, but before his death could
be proven to the law’s satisfaction—courts would not invalidate the second
marriage ex post, even though the law forbade it ex ante (Wozner 2000–01, 326–
329).
Rabbinical law was nonetheless less concerned—as modern law cannot
afford to be—that people would exploit such knowledge. This confidence
arose from the dual nature of this body of law as at once an officially
enforceable rulebook and a more diffuse corpus of religiously inspired
moral teachings. Hebrew law could assume that most people would not
take advantage of the slippage between conduct- and decision rules, or
ambiguities within conduct rules. Devout Jews would not casually dishonor
what they acknowledged as binding moral strictures, adherence to which
remained essential to continued membership within the religious community. This allowed the law to become more secularized on its face and seemingly “disenchanted”, but only insofar as it remained covertly parasitic on
social mores grounded in religious ethics. Hence, the conduct at issue remained subject to spiritual claims, and the larger normative order—of which
law was only a part—still thoroughly “enchanted”.
that these ties engender. Hence, new migrants to cities are shown to reconstruct social bonds with
relative ease (Fischer 1982, 54–62).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 149
Other historic systems similarly drew juridical duties directly from theological sources that at once provided both legal standards for acceptable individual behavior and the collective ritual practices of a discrete social order,
standards, and practices defining its moral boundaries. This general sociological
armature allows the law to indulge disfavored practices more generously than
might communal morality. For the latter harbors enforcement mechanisms of
its own—notably threat of social stigma, even ostracism, sanctions potentially
more efficacious than any available at law. This conclusion requires that we
qualify the widespread view that traditional, religiously inspired legal systems
will seek to entirely “occupy the field” of normative ordering by rejecting any
demarcation of legal duty from wider religious, moral, civic, or social
obligations.
In the import it ascribes to such stigma, the present analysis indicates how
this feature of “traditional” legal systems and societies endures today, albeit less
conspicuously and in different forms. The working relationship between law
and conventional morality—how, when, and why the two diverge—must be
understood accordingly. The suggestion that contemporary societies still vitally
depend in this way on traditional mores and the informal practices reinforcing
them should come as a surprise only for the neophyte to social theory. More
sophisticated readers will already know to regard the concepts of modernity and
tradition as simply helpful heuristics (and acknowledged simplifications), not
to be confused with the complex realities of actual institutions in particular
places and times, where elements of such ideal-types combine in myriad ways.
As we will see later, for instance with respect to collateral damage in war,
resistance to the unacceptable exercise of certain rights sometimes finds its
effective footing in social forces by no means traditional or conservative, on
any understanding of these terms. Rather, the protest regularly springs from
normative notions that are historically novel, such as those of international
human rights. Moreover, far from lying low, whispered in sotto voce deprecation
among neighbors in a close-knit religious community, such remonstrance is
shouted from the rooftops.
This article is not a normative investigation into the demands that critical
morality might properly place upon the law, with a view to a more just world.
Ours is rather a social–theoretical inquiry into the shifting borders between
common morality and positive law. Yet one cannot fail to observe that a frequent criticism of the USA in recent years—from both the left and the right, by
Americans and foreign observers—has been that conventional notions of moral
duty no longer seem to push-back very effectively against encroachment by
rights-based ways of thinking, speaking, and acting in relation to others.
Some influential social science attributes Americans’ increasing reliance on
150 ~ Osiel: Rights to do Grave Wrong
law in recent decades to a decline in social trust and the social capital permitting
such trust (Putnam 2001, 147).86 From the present perspective, one should add
that social capital may moderate not only the invocation of legal rights, but also
the uncivil behavior that conventional social mores once effortlessly suppressed
and that now increasingly elicits the impulse to invoke such rights.
The apparent weakening of informal restraints on rights-talk would inevitably call into question the continued vitality of ordinary morality, insofar as
prevailing social mores, in their restraints on egoistic self-assertion, traditionally held such inclinations in check. When we liberalize the law, deflating its
moralistic aspirations (now judged extravagant), we often take a huge leap of
faith in the continuing vitality of such nonliberal mores, Christian and classical,
as modesty, prudence, circumspection, and regard for others. At the same time
and with unremitting fervor, we nonetheless frequently extend legality’s reach
into the realm of conventional morals, those we consider unacceptably illiberal,
precisely to diminish their continuing sway. This is clear, for instance, in how
both domestic and international law, respectively, increasingly delimit (as we
will later see) traditional claims of physician paternalism and martial virtue.
Today, with philosophical liberalism’s undoubted achievements in the legal
and political realm, the most pressing and perplexing puzzles concern “how
liberal theorists imagine people living within the liberal social world” (Tomasi
2001, 40). That inquiry would particularly concern the debilitating effects of
liberal political and economic institutions on conventional mores and social
practices—nonliberal, though not necessarily antiliberal.87 For the world that
such institutions have, over many decades, helped to create—the liberal society
we today largely inhabit—is clearly by no means “coextensive with the domain
of the political” (Tomasi 2001, 71).
Tomasi is vexed by how liberal law tells us nothing to help answer the question: “What do my rights mean to me?” A liberal society therefore needs, he
argues, to cultivate a set of virtues that render its citizens “skillful in the art of
exercising their rights. . .” (Tomasi 2001, 73–76). In these respects, his gentle
provocation to political thought resembles ours to legal thought, for both fields
are obsessed with the question of what rights we should have, at the complete
neglect of equally important questions about how we should (and do) exercise
them, in light of regard for and objections from others. The pointed concerns of
contemporary liberal theory are more avowedly normative than our own, but
86 “[W]e are forced to rely increasingly on formal institutions, and above all on the law, to accomplish
what we used to accomplish through informal networks reinforced by generalized reciprocity. . . ”.
87 Social theorists have sometimes described this in terms of a breaching of desirable boundaries
between separate social “spheres”, or (in more technical idiom) the “colonization of life-worlds”
(Habermas 1985, 355).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 151
lend further significance to the present inquiry in its efforts to advance sociolegal understanding and, to some extent, guide our conduct as lawmakers and
citizens.
II.2 Lawyers in the Restraint of Rights to Do Wrong
It has often been lawyers who felt called upon to speak on behalf of
extra-juridical considerations, with a view to ensuring that a client accords
due attention to these, so that he might behave more “responsibly” than the
law required of him. The prospect of such intercession arises where professional
counsel is sought and the applicable law is more indulgent than is community
morality, so that the client is legally entitled to engage in conduct many would
consider reprehensible. The bar’s ethics rules have long permitted, but do not
encourage, much less require us to offer extra-juridical counsel at these moments,88 even where it would clearly be in a client’s self-interest to hear it. Such
rules are themselves underinclusive of conventional morality, one could say,
insofar as the general public wishes lawyers would intercede more vigorously
against client conduct that most people consider grossly immoral. To this
extent, rules of legal ethics might be viewed as creating rights to do wrong.
Yet their earliest drafters contemplated that lawyers would, in discouraging
clients from sharp practices not clearly prohibited by law, hold themselves—
not merely their clients—to higher standards than those enshrined in codes of
legal ethics.
“Statesmanlike” appeals of this sort to public morals were apparently once
more common, perhaps even integral to professional self-understanding, on
some historical accounts.89 It is no small irony, to be sure, that early American
lawyers could purport to speak so confidently of what common morality
required of commercial clients from the decidedly uncommon standpoint of
a “noblesse oblige tradition”.90 That habitus and self-understanding was at least
quasi-aristocratic—as many since Tocqueville have noted—in its presuppositions about the profession’s properly elevated status. In any event, recent decades have witnessed considerable retreat from this shared self-understanding,
increasingly viewed as unduly paternalistic, reflecting a certain diffidence, if not
88 Model Rules of Prof’l Resp., Rule 2.1 (2010) (providing that, “In rendering advice, a lawyer may
refer not only to the law but to other considerations such as moral, economic, social and political
factors, that may be relevant to the client’s situation”.).
89 On the heyday and later decline of the so-called “lawyer-statesman ideal” in U.S. history, see Gordon
(1984).
90 Luban (1988, 719) (describing Tocqueville’s view that American “lawyers, like aristocrats, have a
calling higher than bourgeois commercialism . . . and, like aristocrats, assume responsibility for the
common good through public life. . . ”.).
152 ~ Osiel: Rights to do Grave Wrong
indifference, toward pressing client concerns. Many attorneys have come to
think it illegitimate, in fact, to exert any nontrivial measure of informal exhortation of clients to refrain from claiming the full range of rights the law affords.91
Until recent decades, however, few would have thought anything ironic or
paradoxical in the arrogation by legal counsel of a professional duty to dissuade
clients from employing their legal rights in ways much at odds with prevailing
morals. Under such prior conditions, lawmaking itself was necessarily a somewhat different endeavor. A century ago, legislators—when deciding the scope of
a law’s potential authorizations—could assume a legal profession whose members were generally committed to counseling clients not to push these to their
limits, and to exercise self-restraint, at least where the line between legality and
its opposite might prove unclear. In its creation, the law regulating business
corporations, in particular, could therefore formally indulge some measure of
wrongful conduct, at the margins, in the knowledge that informal remonstrance
would limit exploitation of such possible slippage. The perils of establishing
what amounted to a right to do serious wrong would be held in check. More
intrusive legal proscriptions would be unnecessary because extra-juridical dissuasion could suffice in bridging potential gaps between the precise terms of
legal freedoms and more diffuse responsibilities mandated by moral
convention.
Recent changes in prevailing ethical sensibility among American lawyers may
hence have dissolved an implicit condition that long rendered acceptable the
legislative creation of rights to do material wrong. This shift in ethical
self-assessment would seem to call into question the defensibility of such
rights, including those created long ago, on the basis of sociological assumptions that are no longer valid. These rights might prominently include the
long-standing permission, newly controversial, for corporate directors to be
compensated chiefly in light of—and therefore channel their company’s investments entirely on the basis of—its quarterly profits, rather than on its consistent
performance over a longer period.
91 Pepper (1995, 1551–1552) (“From the perspective of the dominant American understanding of law
– taught in the law schools and practiced in law offices –. . .enforcement-related facts [concerning
the likelihood of getting caught and seriously penalized] would be considered part of the ‘law,’ and
thus appropriate information to convey to an interested client”.); Langevoort (2011, 4, 26, 27)
(describing the in-house counsel of financial firms doing subprime mortgage securitization as subject to a “Darwinian . . . career tournament”, creating “cognitive co-dependency” on clients with
excessive appetite for risk, thereby increasing the likelihood that “lawyers predictably frustrate focus
on ethics beyond minimal legal compliance. . .”.). On the self-acknowledged role of plaintiffs’ lawyers in encouraging tort claimants to accentuate, perhaps exaggerate, their degree of suffering for
litigation purposes, see Ericson & Doyle (2003, 313); Ericson & Doyle (2004, 121–123).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 153
Though it is fair to say that everyday ethics within the legal profession has
come increasingly to resemble that of business, this is not to imply that
constraining social mores are entirely absent from the commercial world.
Even there, where legally enforceable codes of professional ethics are
absent, there have sometime existed informal social constraints on
self-dealing, effectively filling shortfalls in law’s more modest restrictions.
There is even informed speculation, at least, that one cause of our recent
economic crises has been that the U.S. financial elite is no longer clubby and
self-perpetuating. For when it was so, its members allegedly felt bound by
unwritten norms of gentlemanly restraint, their horizons elongated by hopes
of passing their business on to progeny, restraints that have broken down
with the rise of more competitive, meritocratic labor markets in financial
services (Brooks 2010).
It is impossible to discover even from richly textured historical accounts
(Baltzell 1989, 233, 391) whether such ruminations are more than fanciful
nostalgia. Yet the basic notion is by no means antiquarian. Its continuing importance is much emphasized in contemporary economic sociology, which
describes this as the “embeddedness” of businesspeople in networks of enduring relations with customers and suppliers on whom they depend, and even
with competitors, to some extent. Such embeddedness is “a necessary condition
for trust and trustworthy behavior” among market participants (Granovetter
1985, 490–491), which in turn reduces their need to seek express contractual
protections, enforceable at law.
Alas, much of the fraternal chumminess celebrated in such historical accounts is likely to have involved, in both intent and market effect, some very
anticompetitive behavior. The apparent tradeoff is disconcerting. On one hand,
as a famous economic historian once argued, the advent of ethical business
practices in late medieval Europe accompanied the growth of craft guilds, informally enforcing standards of honesty and fair dealing among members
(Gerschenkron 1962, 48). Yet such associations have also been all too effective
in loosing oligopolistic temptations. That paradox confirms, as Gerschenkron
himself lamented, that “a sociology of business honesty remains to be written”
(id.), an observation still true a half-century later. Tight legal regulation would
often be superfluous even today if business prudence—enforced through personal conscience or simply gossip within a community of nosy peers—sufficed,
as it did for instance to dissuade bankers elsewhere from following their U.S.
counterparts onto the rocky reefs of subprime mortgage securitization. When
the professed bearers of bourgeois virtue succumb to short-term avarice, there
will understandably be urgent calls for greater juridification of rights-restraint,
however difficult the tasks of intelligently formulating and political realizing
such regulation.
154 ~ Osiel: Rights to do Grave Wrong
We will shortly see that certain professions—physicians and military officers,
in particular—continue to conduct themselves at key points in ways suggesting
the enduring vitality and defensibility of informal constraints on rights to do
wrong, even if such constraints emanate only from unwritten “addenda” to
formal codes of professional ethics.
PART III
III.1 How Rights to Do Wrong Arise
What explains the wandering boundary between law and community morality,
why legality sees fit to enshrine lay mores in some places but not others? More
particularly, how are we to explain law’s periodically flagrant deviations from
common morality, and when might these be defensible?
Two alternative explanatory models immediately suggest themselves, the first
anticipating nearly complete correspondence between these normative orders,
the second virtually none. Many leading scholars long embraced the first model,
imagining that, as Roscoe Pound put it, in “all cases of divergence between the
standard of the common law and standard of the public, it goes without saying
that the latter will prevail in the end” (Pound 1907, 925). In a natural, spontaneous way, law and mores were thought to move closely in sync, with legality—through some mysterious osmosis—unproblematically absorbing or
“mirroring” moral convention, to employ the naı̈ve terminology of some
early sociolegal scholarship.92
Still earlier, in a similar spirit, Oliver W. Holmes Jr even wrote that “the first
requirement of a sound body of law is that it should correspond with the actual
feelings and demands of the community” (Holmes 1881, 35). The judge may
therefore sometimes resolve interpretive ambiguity, Holmes inferred, in light of
such feelings and demands, either because they are helpful, epistemically, in
discovering what the correct legal answer to a given constitutional question
might be, or simply because ignoring them would likely elicit a substantial
public backlash, prejudicial to respectful attitudes toward legal institutions.93
Contemporary authors still affirm such views; one thus contends, “written law
will have no purchase on a community unless it reflects the practices of that
community in some way; even a law that sets out to correct custom will
92 Friedman (1973, ix, 10) (intending “to treat American law . . . not as the province of lawyers alone,
but as a mirror of society”.); Hall (1989, xi) (entitling as “The Magic Mirror” a book with the
“purpose . . . to elucidate the interaction of law and society as revealed over time. . .”.).
93 In some depth, Sunstein (2007) recently examines these two rationales for such an interpretive
approach.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 155
necessarily reflect other aspects of the customary practices of a community, or it
will lack purchase. . .” (Porter 2007, 100).
The second model begins with the opposite assumption: given the diffuseness
of lay morality, its often-disorganized articulation as a social force, what stands
in need of explanation are those legal rules closely comporting with it.
Confluence between the two, not their divergence, presents the harder puzzle.
As a leading scholar thus observes, “[a]ssuming some short-term coalition gets
the law passed, such a law can operate very independently of current social
mores, depending on voters’ or politicians’ inattention to the laws, or on some
more complex politics underlying the law’s persistence” (Weisberg 2003, 525).
He is referring particularly to long-standing criminal laws that, though today
widely considered “draconian in light of social mores”, remain popular with
prosecutors who frequently employ them.
Law and lay mores will much overlap, public choice theory insists (Farber &
Frickey 1991, 13–32), only where there exists some powerful, well-organized
group actively devoted to moving the law in this direction, lobbying energetically for legislation to this effect, in the face of indifference and inertia among
potential opponents. Hence, on one leading account, the successful American
Temperance Movement of the early 20th century, though not endorsed by
majority opinion, sprang from actively organized Protestant churches composed of a nativist middle class whose members felt deep “status anxiety”
over perceived threats to their cultural dominance posed by the recent immigration of millions of working class Catholics.94
The public choice hypothesis would presumably find further support in
countries where leaders of the Roman Catholic Church are quite powerful
because, though only a minority of the population remains ardent in its faith
and regularly attends mass, most other citizens also think of themselves as
Catholics and mildly endorse or at least acquiesce in the Church’s moral teachings. We might therefore anticipate a greater overlap between law and popular
(Catholic) morals on certain issues in Latin America than in many other parts
of the world. The conditions under which one may lawfully obtain an abortion,
in particular, within heavily Catholic societies are indeed more restrictive than
in other non-Muslim countries (U.N. Department of Economic and Social
Affairs 2011).
This is so despite the fact that substantial majorities in non-Catholic majority
countries also consistently tell survey researchers that abortion is wrong (under
its most frequent circumstances) and about half of their populations even
94 Gusfield (1970, 4, 23–24, 55–57, 117–123) provides an influential account of this.
156 ~ Osiel: Rights to do Grave Wrong
describe the practice as tantamount to “murder”.95 In such secular societies, we
must infer, abortion law is often less restrictive than prevailing moral opinion,
even if the latter’s torpor and tepidity keep it from inspiring potent organizational expression. In fact, the disjoint, hypocritical character of much within
ordinary morality would lead one to predict, from a public choice perspective,
that nothing so flimsy and desultory would ever find fulsome legal articulation,
not nearly to the extent it regularly does. The fact that no organized group has
actively opposed law’s incorporation of any given slice of community morality
cannot, in itself, account for how, when, and why so much of such morality
does in fact find legal form.
This persistent correspondence is the dull, gray background against which all
“moral entrepreneurs” mightily labor. It would surely find emphatic acknowledgement, for instance, from many activist–reformers on issues like gay marriage, who long confronted prevailing public views effectively blocking96—
increasingly by state constitutional amendment—their concerted efforts at
legal reform, whether through legislation or litigation. It is nonetheless also
true that there have been well-organized entrepreneurs laboring energetically
to influence public opinion against such reforms, as public choice defenders
would be quick to retort. The constitutions of twenty-eight U.S. states thus now
prohibit same-sex marriage, most by way of recent amendments. The moral
entrepreneurs pressing for such constitutional change have been denominationally and racially diverse (McKinley & Johnson 2008).
The law sometimes authorizes a practice that most people oppose, but which
remains simply pervasive because they do not realize others oppose it as well,
and so fear that they will be stigmatized for not engaging in it. This curious
phenomenon entails what might be called “concealed preferences”, the antithesis of “revealed” ones, long the exclusive preoccupation of economics.97 Some
social scientists, including female ethnographers who have interviewed women
in parts of Africa, have come to view the widespread practice of female genital
mutilation in these terms (Abdalla 1982, 94–95; Lightfoot-Klein 1989, 99).
Confidential opinion surveys disclose that many men harbor serious doubts,
at least, about the procedure. In such circumstances, by publicly clarifying
how others privately feel, it is sometimes possible to effect a major shift in
95 N.Y. Times/CBS News Poll, January 18, 1998; Hunter (1994, 92–93) (summarizing survey data).
96 Public support for legal recognition of homosexual marriage was quite low until very recently.
Support for Same-Sex Marriage Edges Upward October 6, 2010 (tracking the acceptance of gay
marriage since 1996, illustrating “favor” gaining on “oppos[ition]”, and noting that in recent
interviews “42% favor same-sex marriage while 48% are opposed”).
97 The only sustained analysis of the concealed preferences remains Kuran (1995), though he does not
employ the term.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 157
social behavior. Official policy, embodied in law, can contribute to disseminating such information. But more often it occurs without state assistance. That is
what happened with female footbinding in China, in particular (Mackie 1996,
100–102).
III.2 Convergence and Divergence of Law and Mores: Empirical Incidence
It is a truism that virtually all rules are, to some extent, underinclusive and/or
overinclusive vis-à-vis their intended purposes. Almost any legal entitlement
could therefore, in the right circumstances, be employed to other ends, some
objectionable. What interests us here, rather, is to identify empirical patterns in
how truly major disparities sometimes emerge between law and morals, and the
conditions under which the grievous repercussions one would anticipate from
this conflict are kept within tolerable limits by countervailing encumbrances on
the right’s exercise. This particular constellation of features is neither a banal
commonplace nor so freakishly rare as to warrant dismissal as a mere jurisprudential curio. If it is in any sense opaque to immediate recognition, this is only
because it has been, as the expression has it, hiding in plain sight. This opaqueness is a common characteristic of what we may call, following Searle, “the
background”, which, “as the precondition of intentionality . . . is as invisible to
intentionality as the eye which sees is invisible to itself” (Searle 1983, 157).
A general theory of the matter would have to identify and explain the location
of the gravest disparities between law and lay morals. Their distribution is by no
means perfectly random. The incidence of overlap between the two normative
orders is less frequent than suggested by the classical sociological view of
Durkheim, Pound, Holmes, and early sociolegal scholars, whose theories lead
us to expect the two would be virtually coterminous. Even so, the overlap is
certainly considerably greater than one would infer from a straightforward
application of public choice theory or related “sophisticated” contemporary
accounts of the lawmaking process, which deride as woefully naı̈ve the expectation of any concurrency at all.
This latter view simply leaves too much of legislative life unexplained,
almost willfully mysterious. For instance, when political elites in poor,
democratic countries act decisively to prevent famine (during food crises
presenting that risk), as consistently occurred in postindependence India,
they do so not in response to organized demands directly from the starving,
who have more pressing concerns with securing immediate survival.
Legislators act on common moral intuitions of justice shared by broader
publics, sentiments elicited by media accounts of increasing human misery
(Drèze & Sen 1990, 212–214, 276–279). These in turn may activate politicians’ self-interest in securing re-election through the votes of such
158 ~ Osiel: Rights to do Grave Wrong
concerned citizens, who (unlike famine’s victims) number in the many
millions (Sen 2009, 342–349).98
In more routine circumstances, the considerable empirical correspondence
between law and community morality is perhaps especially apparent in criminal
law, where it has been shown that lay views on most issues track legal doctrine
quite closely.99 This is true even on such seemingly rarefied matters as the
notion of an excuse as vitiating blameworthiness while leaving wrongfulness
intact (Robinson & Darley 1995, 155).100 Such distinctions, grounded in ordinary morality, emerged historically at common law, and have not since been
legislatively displaced through aggressive lobbying by any rent-seeking constituency. Much of our law is like this, including virtually all of contract law, which
therefore elicits in first-year students the immediate, intuitive recognition of
ethical acceptability, even obvious correctness. This is not to imply that rules of
common law are more likely than legislation to mirror community morality.
That would be curious indeed, given the greater vulnerability of legislators than
judges to displacement through elections, which give political voice to lay moral
judgment.
We law professors take a keen, almost perverse pleasure in drawing back the
curtains and disclosing to our students the myriad ways in which, for good
reason, the law sometimes departs in key respects from what the dewy-eyed
novitiate, in thrall to her simplistic lay sense of what justice requires, innocently
supposes it would and should be. The dialectician in us revels in showing how
the law must tack in one direction so that it can move ultimately in the opposite, why it indulges seeming immorality in order—through a circuitous
cunning, mysterious to outsiders—to advance the good. We, the worldly
wise, take guilty pleasure in exposing the uninitiated to the counter-intuitive.
98 It is also conceivable at least that the motives of such political leaders sometimes involve no more
than disinterested concern with the fate of fellow vulnerable human beings, whose plight is readily
remediable and who dwell close at hand.
How strange.
Public choice theorists might even concede that morality’s most pressing demands sometimes
become legally operational in so unmediated a way, during such truly catastrophic humanitarian
crises, if only within democracies, to protect fellow citizens. But such theorists would then rightly
qualify that concession with the observation that the large majority of mass disasters—even the
Rwandan genocide, after all—elude serious redress by international legal bodies, institutions rife
with bloated invocations of our universalistic moral duties to one another.
99 Robinson (2000, 1839) (finding from opinion surveys that the Model Penal Code “defers to laypersons’ shared intuitions of justice on issues touching essentially all criminal cases”).
100 The very notion of an excuse, so understood, might be thought to exemplify a right to do serious
wrong. However, common morality does not appear to reproach the excused person in any nontrivial way once the extenuating circumstances motivating his “wrongful” actions are accepted as
convincingly exculpatory in legal terms.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 159
This preoccupation introduces distortions of its own into any honest effort to
make sense of when and why the disparities at issue arise and, no less importantly, when they do not.101 While we cognoscenti may pride ourselves in
appreciating the many subtle reasons why positive law frequently departs
from community morality—often in service of a more “critical” morality, or
simply because better empirically informed—we should at least acknowledge
that many of those recalcitrant “commoners” (even after hearing our refined
explanations) remain skeptical, if not thoroughly unconvinced. In other words,
while we sophisticated spokesmen of the law are perfectly prepared to accept its
periodic indifference to lay morality, most bearers and vocal representatives of
this competing normative order continue to insist upon law’s acute attentiveness, even subordination, to it and to them.
Some will respond that modern legal systems are simply not much concerned
with laying out affirmative standards of conduct, grounded in consensual conceptions of morality, to which everyone is expected to conform. Rather, modern
law in a liberal society seeks only to provide the minimum background conditions within which individuals can pursue their freely chosen life projects in an
orderly fashion, consistently with those of others. Yet the notion of personal
autonomy implicit in this picture is itself a substantive moral ideal, widely
endorsed within this country, one that our law largely enshrines, notably in
rules protecting contractual freedom, private property, personal privacy, individual speech and association. This is our conventional morality to considerable
degree.
Equally material here is that the historical retreat of modern law into protecting a sphere for private life projects—rather than enforcing a comprehensive public doctrine of moral/religious truth—can succeed only insofar as
secularized elements of a more full-bodied ethical code persist. These must
find solid footing in social conventions and practices of stigmatization. Such
informal restraints on rights to do wrong therefore become no less important,
possibly more so, as modern legality retracts its reach and ceases to lend coercive backing to the responsibilities these restraints alone now underwrite. In its
indifference to such social forces, modernity’s law reveals its assumption—
often unwarranted—that they can be safely taken for granted.
This is apparent not only in how the legal system conducts its practical affairs
but also in how it understands itself, conceptualizes its workings. That complacence also explains the incuriosity of legal scholars on these matters. They regard
the other reasons for disparities between law and mores as so obvious, banal, and
101 If the sociology of law were ever to re-establish itself as an intellectually significant endeavor, this is
the sort of question it would need to convincingly address.
160 ~ Osiel: Rights to do Grave Wrong
ubiquitous to any legally sophisticated person as to be unworthy of note. Yet
they appear almost entirely unawares of the reason here examined, despite the
moral magnitude of the regulation problems it often resolves. Contemporary
law’s yearning to extricate itself immaculately from untidy custom and woolly
convention does not diminish its continued dependence on them in the significant respects here anatomized. Even today, after a century of legal realism, the
professional ideology of legalism102—its insistence on our field’s pristine, acontextual self-seclusion—remains strong enough to blind us to this fact.
III.3 Good Reasons Why Law and Lay Morals Go Separate Ways
We have seen that the answer offered by public choice theory to explain disparities between the claims of law and common morality—in its exclusive attention to raw power and rent-seeking—is overconfident and incomplete, at
best. This theory is further misguided in its indifference to the normative question of when such disparities may be justified. For if such normative concerns
often influence how the law resolves that question, as indicated above, then it is
impossible to ignore the reasons people offer one another in their legislative
deliberation over it. There are several good reasons for incongruences between
law and morals, apart from the particular rationale on which this study focuses.
Let us offer a thumbnail account of these, with simple illustrations.
First, though prevailing moral standards may authorize a person in some
way, it may be impossible to say what this actually requires of anyone else, to
specify who must do precisely what to ensure that the person’s moral rights are
not dishonored. At such times, there will often be compelling reasons—conceptual, normative, and prudential—why the law should not seek to commandeer all of morality. Even the most fundamental of moral rights, those today
regarded as shared by all members of the species, are sometimes insusceptible to
sufficient concretization. The result is to preclude their holders, to put a finer
point on the matter, from suing anyone for their violation. These violators are
therefore lawfully enabled to do wrong.
Philosophers are chiefly interested in the conceptual reasons for nonjuridificaton of moral rights and duties, reasons which vary little with sociopolitical
circumstance. Theorists therefore ask such questions as: what does it mean to
say, i.e., would be logically entailed by acknowledging, that each of us—in virtue
of our nature as human beings—has moral duties to ourself. It might well prove
impossible to answer that question with much clarity or precision, even though
we have no doubt about who shoulders the obligations. We nonphilosophers are
102 See, Shklar (1964) (defining this as “the ethical attitude that holds moral conduct to be a matter of
rule following”, and which leads to treating legal systems as analytically isolable from their social and
historical surroundings).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 161
presumably more interested in the prudential rationales for not juridifying
moral rights, such as concerns with whether—once enshrined into law—they
would thereafter simply be ignored by powerful interests opposed to their realization, thereby discrediting the law itself. These reasons, unlike the preceding,
vary greatly in salience from one social context to another. Finally, both philosophers and the rest of us are much concerned with the normative grounds for
noncodification. These would include the fear that juridifying a particular moral
right would unduly narrow the scope of another such moral or legal right of
equal or greater normative import. Two or more of the three rationales may
combine: hence, juridification of a particular moral right may both unduly limit
the formal scope of another right and also weaken the effective capacity to
exercise what remains of it.
Kant described the rights and duties insusceptible to much specification as
“imperfect”, contrasting these with ones more readily amendable to “perfect”
reflection within the law (Kant 1930).103 For a contemporary example, we
might so classify the international “responsibility to protect” victims of ongoing mass atrocity. Whereas duties to ourselves enter only into our most
intimate private ruminations, the responsibility to safeguard others operates
on the world stage, clamoring attention from both prominent elites and vast
publics. In recent years, Amartya Sen has vigorously reaffirmed Kant’s distinction in developing the philosophy of international human rights (Sen 2001,
2004, 2006).104 He is keen to refute those who believe such rights are not merely
vague at the margins, here or there, but entirely meaningless insofar as they
cannot be formally “perfected” into a fully enforceable international law.105 Sen
thinks it important that we can often agree a particular human right exists, and
103 Strictly speaking, a human or other moral right may be perfectable, in the sense of allowing specificity about the particular parties who are duty-bound to honor it in a certain way, yet nonetheless
resist juridification. This is frequently because of “how the claims of human rights should be
consolidated with other evaluative concerns that may also deserve ethical attention” (Sen 2012,
94), notably those of public welfare.
104 Some have misread Sen to mean that social and economic rights, as opposed to civil and political
ones, are those which must remain unperfected (Scheppele 2011, 18–19). But he repeatedly makes
clear that (and why), for any given human right, there is no logical connection—even close contingent correlation—between its degree of legal perfectability and its categorization as civil/political
versus social/economic/cultural (Sen 2004, 346; 2006, 2924). Scheppele’s misreading suggests that
Sen thinks we should not juridify human rights that cannot presently be enforced effectively through
litigation, that such “aspirational” rights are not ready to enter law’s domain. This is most definitely
not his position, which has always been simply that the concept of human rights has considerable
value in public discourse entirely apart from its possible further value in providing the moral
grounds for certain kinds of legal enactments.
105 Sen is here clearly responding to critics on the political right who see little practical usefulness in the
notion of human rights. Yet he can also be construed as seeking, more slyly, to save human rights
from their own, self-professed adherents (chiefly on the left, often avowedly so) who—in claiming
162 ~ Osiel: Rights to do Grave Wrong
that it may impose certain responsibilities, without necessarily concurring in
how it should be concretized into administrable legal rules, at this time or that
place. We can therefore acknowledge a range of disagreement on legal details
even as we come together on moral essentials, each of us seeking to advance
them as best we may under our disparate circumstances.
Sen thus invokes Kant’s distinction not to diminish the practical import of
imperfect duties, but to accentuate it.106 Such duties require us, he urges, to ask
ourselves soberly what we may be able to do to ensure that others’ most basic
human rights are not transgressed. We should then presumably proceed with
some effort to that end. We may even sometimes have a moral duty to organize
ourselves collectively in order to seek the reform of large-scale institutions,
including international legal bodies, so that it becomes increasingly possible
to render certain imperfect duties—those most essential to human freedom—
into more perfected form.
Sen’s chief point here is that, upon concluding we presently have no specific
legal duty to advance a human right of a given individual, we are not entirely off
the hook and should not conduct ourselves as if we were. The law cannot
prescribe, of course, how much we should contribute to which among a long
list of reputable charities, for instance. But this is simply to say that positive law
cannot tell us every last thing we need to know and do in order to honor all
of the moral duties we assume. So stated, that proposition borders on the
obvious. By no means obvious, and greatly vexing to legal thought, are the
intricacies involved in discerning when and why a given moral duty must
remain imperfect, as well as when and how (or to what extent) we should
seek its greater legal perfection, as through legislation, litigation, or treaty
drafting—all of these perhaps vitalized by efforts to stimulate public discussion
and political mobilization.
Even when morality’s requirements of us can be identified with crystalline
precision, there may still be good reasons why these should not be juridified.
Arguments to that effect are normative in nature, but to the extent they are
too much for it (in legal recognition and coercive means of enforcement)—threaten to discredit the
entire enterprise.
106 He thus insists: “any system of rights that ignores all claims other than those associated with perfect
obligations (in analogy with legal obligations) will miss something of potential significance in the
field of social norms. This is a serious loss, and the corresponding conceptual impoverishment has
had the effect of taking the notion of human rights to be conceptually muddled and problematic in a
way it need not be” (Sen 2001, 9). More simply, his argument here is that, it is mistaken to assume
that all social norms must be rendered into legal form in order to count as meaningfully binding
upon us. Moral norms, including those today widely described in terms of human rights, should not
even be regarded as “potential legal rights in waiting”, i.e., awaiting their juridification before we
should regard ourselves as obligated to guide our actions in their light (id. 17).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 163
embraced by legislators, they also help explain how law and mores actually
come to diverge, and specifically why the former is frequently more accommodating that the latter.
As Aquinas first observed, it may be misguided for the law to prohibit potentially harmful but pleasant activities that most people find too difficult to
abandon, like the consumption of alcohol. Such ineffective “prohibition”
threatens to generate still-broader disdain for the law, inciting a diffuse inclination to disobey it (Aquinas 2006, q. 95, a.1 and 96, a.2). Moreover, with other
suspect activities, like worshipping false gods, “coercing [people] to avoid what
is wrong might have the effect of impeding them from eventually doing what is
right”, i.e., discovering the true faith voluntarily, as Robert George parses these
passages (George 1993, 33). There is also the ancient concern that while law can
mandate outward conformity to ethical strictures, it cannot inspire internal acts
of genuine moral will. For their conduct to be truly moral, on some accounts,
people must freely choose to do the right thing. And in order for their rightful
conduct to be freely chosen, they must have the right to choose otherwise, to do
wrong. The law should not foreclose this possibility if it wishes to make men
truly moral.
Such preoccupations might at first seem peculiar to classical and, today,
Christian thinkers. Yet one need not look far to find them at play in contemporary situations, entirely secular. Thus, there now exists a well-established
global norm that a state once responsible for a mass atrocity, particularly genocide, has a moral duty to apologize for its misconduct.107 Some have sought to
turn this informal norm into a legal duty; the Inter-American Court of Human
Rights, in particular, now regularly orders states, found liable for large scale,
violent violations of their citizens basic human rights, to issue formal apologies
to the victims and their families.108
Others plausibly reply that the very notion of a legally mandated apology is a
category mistake. An apology can only be genuine if truly voluntary and sincere.
These features cannot be established—indeed, become both less likely in fact
and more difficult to ascertain—if it has been ordered by a court of law or
issued (even sua sponte) pursuant to a rule of customary international law. This
remains the case even if, in its wording, the apology is forthright, not equivocal
107 On the increasing frequency and political dynamics of state apologies for mass atrocity, see Lind
(2008).
108 See, e.g., Baena-Ricardo v. Panama, 2001 Inter-Am. Ct. H.R. (ser. C) No. 72, 88 (February 2, 2001);
Cantoral-Benavides v. Peru, 2001 Inter-Am. Ct. H.R. (ser. C) No. 88, 81 (December 3, 2001).
164 ~ Osiel: Rights to do Grave Wrong
or incomplete.109 International law should therefore preserve the possibility
that states, in declining to apologize, may exercise this right to do wrong.
Advocates of a legal duty retort that, as applied to nation–states, concepts of
voluntariness, sincerity, remorse, and worthy intention represent the true category error here. Insisting upon evidence of their presence hence makes little
sense, for they pertain only to natural persons, not collective legal fictions. On
this view, what matters more than motives and inner repentance for the past is
the message that current leaders are sending, through their sober external act of
atonement, about the state’s commitment to a very different future. It is nonetheless true that when they do apologize, states can most convincingly demonstrate their bona fides if their leaders retain a right not to do so.
This is not exactly what Aquinas had in mind, to be sure. Contemporary
liberal societies, however, stand opposed in principle to deep soulcraft by the
state, to the very idea of making men moral at the level of their motivations for
ethical conduct. We are wary of any role for government in character formation, beyond the virtues necessary for liberal citizenship (Galston 1991, 213–
237). The older position therefore does not offer serious guidance about when it
might be fitting to refrain from “legislating morality” within a secular state, in
our own times. Nor has legislative deliberation on the question, as an empirical
matter, been much influenced by concerns with fostering reflexive moral choice
among those subject to regulation.
More pertinent to contemporary concerns is the notion, suggested by
Waldron and other modern liberals, that people have a moral right to engage
in certain forms of moral wrongdoing (Waldron 1981), a right the law should
presumably protect. Such moral rights are decidedly not confined to a “private”
realm of intimate relationships or care of self. Thus, in one of Waldron’s examples, it may be morally wrong to contribute money to the electoral campaign
of a racist politician, as many would concur. Yet one may nonetheless have a
moral right to do so, which the law should acknowledge. This is clearly not a
prudential argument about how it could prove ill-considered or impracticable
to draft, enact, and enforce a suitable legal rule to the contrary. Nor is
Waldron’s offering an explanation for why the law has often seen fit to enshrine
such rights to do wrong. In fact, even to speak of a moral right to do moral
wrong rings so oddly in ordinary language, strikes the layman initially as so
counter-intuitive, that we must doubt whether even semi-conscious appreciation of that possibility could much account for why the legal system does in
109 This is infrequent, insofar as most such official apologies disclaim any responsibility, legal, or moral,
for substantial reparations to victims.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 165
fact sometimes allow conduct greatly at odds with lay morals—still less explain
the law’s particular doctrinal contours in this regard.
Waldron observes that we nonetheless routinely rely implicitly upon the
notion of a moral right to do wrong when we engage in the common practice
of “moral and social criticism of someone for the way they exercise their
rights”, as in the Ground Zero mosque incident. Where we are uncomfortable
with someone’s conduct at such times but are reluctant to condemn it in overtly
moral terms, reproach it as simply “wrong” or “unethical”, we often say that it
is “inappropriate”, a common expression within ordinary language. We may
therefore gain some sociological insight by empirical tracking when this term
tends to be invoked. Such language seems to reflect our working commitment
to the distinction between a genuinely moral convention, the violation of which
would warrant description and treatment as wrongful, and a nonmoral norm of
mere propriety or decorum, to which reactions of indignation and resentment
feel inapt.110
A second possible explanation for our frequent use of this term resonates
more closely with Waldron here: that we are not quite prepared to chastise
someone’s conduct as immoral when we intuit that he has not merely a legal
right to engage in it, but a moral one as well. We sense a contradiction in
describing such conduct as wrongful if we also feel, at some inarticulable
level, that the other is morally entitled to partake in it. “Inappropriate”
seems to resolve this conundrum, at least in such logical measure as demanded
by daily discourse. The term is more congenial to us than saying that the person
whose actions we wish to condemn nonetheless has a moral right to do moral
wrong. Our preferred wording allows us to register this tangled complex of
beliefs and sentiments without succumbing to what, within the terms of
common speech, seems oxymoronic. The term’s very ubiquity, however, suggests an explanation lying closer to the surface of popular parlance: that this
form of censure is simply acknowledging the wrongdoer’s legal right, not a
moral one. In any event, we generally employ this mildly critical appraisal to
suggest doubts about whether someone should exercise his right, rather than to
explain how such a right—despite clearly authorizing misconduct—could or
should come to exist in the first place, a concern more central to the present
project.
More influential in staying the legislative hand has undoubtedly been the
view that it is frequently better to legalize a suspect activity and discourage its
most pernicious expressions than to outlaw it altogether and thereby drive it
110 We may also employ this curious, revealing term when the flouted norm is genuinely moral in
nature, but not particularly weighty in what it demands of anyone under pertinent circumstances.
166 ~ Osiel: Rights to do Grave Wrong
underground, where it escapes entirely unregulated, causing still greater harm
in that form (e.g., fatal back-alley abortions, bathtub gin that blinds drinkers,
unmonitored prostitution that spreads AIDS, and venereal disease, etc. . .).
Thus, one common argument in many countries for permitting small-scale
narcotics possession, sometimes under medical supervision, is that its criminalization leads—so frequently, almost inexorably—to pervasive corruption of
the police and armed forces, a result far worse for “rule of law” values. In poor
countries with weak legal institutions, moreover, criminalizing child labor may
simply lead to children surreptitiously working in black markets (frequently
prostitution), rather than “above-ground”, where law-abiding employers will
likely treat them somewhat better.111
These examples begin to illustrate how codifying a first-order “golden rule”
or deontological principle directly into law sometimes creates perverse incentives that yield worse consequences than those the regulation itself aimed to
prevent. Where such social costs of juridifying responsibility clearly outweigh
benefits, that course of action would be inefficient. This can be true, for instance, of legal duties to report a patient’s harmful intentions, contagious medical condition, or ongoing misconduct (e.g., child abuse). The unintended effect
of rigorously enforcing such disclosure duties, without qualification and circumstantial sensitivity, may be to discourage these patients from seeking the
treatment that would allow them to be monitored, thereby diminishing prospects of their doing further harm.112
This amounts to a problem of adverse selection in the distribution of professional services, in that those most in need of care will be driven away from
those charged with providing it. Medical professionals hence sometimes decline
immediately to report continuing patient criminality that legal intervention
could conceivably interrupt. For the law deliberately to indulge this professional
reticence, as it officially does in some countries,113 is to create a legal right to do
111 Basu (1999, 80, 86) (arguing that if policies penalizing countries for using child labor “are implemented properly they are likely to drive children from the carpet industry or garment industry or
soccer ball industry to other sectors, some of which are more dismal, such as prostitution or
welding”.).
112 See, among others, Orentlicher (2001, 83–90) (observing how this concern with perverse incentives
came to limit initial efforts to diminish longstanding protections of professional confidentiality and
impose such reporting duties on medical professionals). Medical professionals have sometimes been
required to report patients whose examination discloses evidence of illegal drug use, and to disclose
the identity of AIDS patients engaged in unprotected sexual activity.
113 Wallace & Bunting (2007, 10) (distinguishing the “child protection model”, focused on deviance
control of “degenerate relatives”, with the “family services model”, viewing abuse “as a problem of
family conflict and dysfunction stemming from social and psychological difficulties that are responsive to services and public aid”).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 167
something generally deemed wrongful: failure to report child abuse. To be sure,
from a purely welfarist standpoint, a legal policy of reducing harmful overall
effects through such occasional nondisclosure is precisely what morality requires. Yet surely, so unqualified a consequentialism does not exhaust the
scope of our moral concern, whether conventional or “critical”.
There are still other reasons why the law’s claims upon us frequently do not
perfectly track those of lay morality. We may fear, for instance, that if we
condition a right’s availability on morally acceptable motives for its intended
exercise, this will simply lead people to lie about their motivations and thereby
corrupt the judicial process through pervasive perjury. Often, moreover, we
simply disagree about what morality requires, at times profoundly. Even where
we concur, we frequently do not trust government officials with the power
necessary to enforce it, fearing they will abuse this authority. We fear, in particular, that they will violate other moral principles in the process, as through
intrusions on our privacy or other rights.
To take one conspicuous contemporary example of this problem, in the face
of ongoing mass atrocity, many would say that morality requires humanitarian
intervention by armed force against criminal perpetrators. Yet despite the
novel doctrine of a “responsibility to protect” atrocity victims anywhere in
the world, international law does not authorize such interstate force without
U.N. Security Council approval, which is vanishingly rare. This reluctance
stems largely from the warranted fear that such a legal right would frequently
be abused, invoked pretextually, where other, less laudatory motives actually
inspire a state’s resort to violence. The law thus not only elsewhere permits what
morality may disallow—our primary interest here—but here also prohibits
what lay morality would surely permit, perhaps even require. In both situations,
the rationale for the disparity between law and morals is frequently distrust in
the good faith of those called upon at once to administer justice over others and
behave justly themselves.
The various considerations described in this section arise ubiquitously. The
proposition that law cannot fully track morality therefore borders on platitude.114 We are seeking to rescue aspects of it from that fate by anatomizing
the mechanisms through which the two normative orders diverge, and identifying reasons for the empirical incidence of such divergence. Since law so often
takes leave of lay morality, interpersonal urgings not to exercise our legal rights
114 Admittedly, the line between platitude and profundity—between the reactions “ho hum” and
“aha!”—sometimes proves elusive, or at least ephemeral. It is often the task of theory to give
self-conscious expression and more precise articulation to what we all already intuitively understand—“at some level”—and which we in fact, upon attaining this enhanced recognition, realize
that we have already known for a long time. “Yeah, yeah!”
168 ~ Osiel: Rights to do Grave Wrong
are equally pervasive—often subtle, sometimes blunt. After all, we regularly
importune others, and are importuned upon, to forgo entitlements that the
law formally invites us to claim.
A final explanation for certain disparities between law and social mores is
offered not by legal scholars but social theorists and historians avowedly on the
left: that the law (historically at least, though perhaps today as well) has allowed
“the lower orders” a range of exhilarating indulgences—notably those of carnival and charivari—that elites, those who write and enforce such law, themselves regarded as highly immoral. These disreputable activities—often well
beyond the merely lewd or bawdy115—allowed the great unwashed to “let off
steam” and so served as a kind of metaphorical “safety-valve”, releasing accumulated social pressures that could otherwise easily have assumed more overtly
political form.116
The carnival of medieval and Renaissance Europe, in particular, notoriously
involved the explicit inversion of social hierarchies, with the powerless (their
faces prudently masked) symbolically assuming the role of elites.117 In turn, the
powerful were depicted in grotesque caricature, engaged in disgraceful acts,
rendering them the target of ridicule and disdain, even mock violence by the
raucous multitude. Men dressed as women, women as men. Reversing a much
meaner reality, wives (albeit in costume) semi-playfully “beat” their husbands,
whose identity was hence concealed as well. In carnival’s classic incarnation, the
ruling classes and genders were symbolically defenestrated. All the better to ease
their prompt return to pomp and power on the morning of the very next
workday, with the demeaning deference of their pathetic underlings now
more solidly reinstated.118
115 Ingram (1984, 93, 103) (describing English charivaris “involving some form of political protest . . . design[ed] to draw attention to the malfeasance of. . .governors” and seen by such authorities
as “an excuse for disorder on the part of base and troublesome members of the community,
ill-qualified to mock the follies of their neighbors”.). See, generally, id. 90–98. On this aspect of
similar festivities in France, see Davis (1975, 105, 118, 123, 140).
116 The most distinguished and credible exponent of this view is surely the first: Frederick Douglass,
who denounced the slaveholders’ effective use of holidays, during which alcohol was often lavishly
available, for “keeping down the spirit of insurrection”. Otherwise, he insisted, “the rigors of
bondage would have become too severe for endurance, and the slave would have been forced to a
dangerous desperation” (Genovese 1972, 577) (quoting Douglass). He did not employ the metaphor
of the safety-valve, which only much later acquired wide currency, including among such leading
social thinkers as Genovese (id.) and Offe (1972, 479) (describing the modern welfare state, as seen
by its upper-echelon administrators, “as a safety-valve for potential social problems”).
117 In an influential work, Bakhatin (1968, 184–195, 213–223, 387–399) first evocatively suggested these
symbolically subversive aspects of carnival.
118 Scholars have ascribed this effect to vast variety of social practices besides carnival. See especially
Coser (1964, 41–48).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 169
In the early modern period, criminal assaults during such traditional English
festivals were formally exempt from prosecution (Thomas 1964, 53). In more
recent times, the authorities have enacted, for these few days per year, explicit
exceptions to city ordinances barring public nuisance, loitering, vagabondage,
and other such misdemeanors (Roach 1993, 60–71). After all, the mere casting
of plastic “throws” by Mardi Gras crews, whose members include New
Orleans’s most prominent personages, would amount to multiple littering infractions—highly embarrassing, but for such explicit statutory exemptions.
New Orleans has also rehabilitated the moribund “assumption of risk” doctrine
to relieve crew members from prospect of tort liability for throwing objects that
could accidentally cause serious bodily harm (Roach 1993, 69). Even more
directly, the public authorities—there as elsewhere—organize and commercially promote the festivities, implicating the state itself in encouraging the
widespread breach of social mores. Thus, with the law’s wink and nod,119
even its proactive facilitation, conduct once viewed by Catholic theology as
unadulterated vice officially receives free rein, in that very Catholic city, to
romp and frolic.
To what end? The safety-valve hypothesis is tantalizing, to be sure, and
certainly appealing to anyone with a soft spot for conspiracy theories. Alas,
however, there is no evidence whatever from any place or period—despite the
considerable sleuthing of innumerable scholars—that, in authorizing a couple
of days of drunken debauchery, anyone of political significance ever actually
thought in these terms. Still less did such putatively savvy, far-sighted elites go
about organizing others of their ilk in devising legal dispensations to that
effect—a task which would, in any event, have presented colossal “collective
action” problems. This is not to deny the possibility that legally endorsed,
ritualistic release from social mores may sometimes help preserve the social
order. That effect can arise, though, only insofar as its victims (here, the
lumpen) are blind to it or regard it as merely a by-product of conduct differently
motivated. The aim of system legitimation collapses, in other words, once
recognized as such and as having been directly sought.
Yet even this theoretical scenario—the safety-valve, but only as second-order
precipitate—has been equally impossible to substantiate. After all, none among
those foppish aristocrats or complacent Church elders, upon entering his parish
on Lent, seems to have been caught gloating over having just pulled one over on
the unsuspecting plebs. And none of the latter seems to have left a record of
suddenly renouncing his resentiment, concluding—upon recovering from the
119 Roach (1993, 45) (showing how the history of Mardi Gras’s legal regulation discloses a “process
whereby once transgressive activities become dignified, sanctioned, and even legally protected. . .”).
A helpful illustration is Lousiana Rev. Stat. Ann. 1950. 9, 2796.
170 ~ Osiel: Rights to do Grave Wrong
decadent indecencies of Fat Tuesday—that all those nasty, dastardly autocrats
really were not such bad folks after all. The picture of late medieval society
summoned up in such feral fantasies resembles not so much anything discoverable in the sparse archives (or reasonably inferable therefrom) than the
madcap historical hallucinations of Monty Python’s “Holy Grail”. To pursue
that cinematic speculation for a moment, one imagines John Cleese’s immediate riposte to our expressed doubts: “But then, there wouldn’t be any such
evidence, of course, would there? For surely the ruling classes knew better
than to so incautiously advertise their cunning, reactionary schemes, for the
rest of us to readily unearth and denounce. Hah!”
This sort of gleeful touché then met the buoyant come-back of other learned
academicians that, whatever the caviar consuming, champagne-swilling classes
may have wished, the legalization of carnivalesque sensuality was, on closer
inspection, not really so politically cathartic anyway. It showed no demonstrable sign of attenuating true tensions—if indeed any could be seriously discerned—beneath the tranquil surface of daily, manor–house interactions
between upstairs and down. This is not to imply that carnival was all just
“innocent fun”, of course. No self-respecting radical intellectual could let herself be seduced by such ideological naı̈veté! For the turbulent passions that
carnival did undoubtedly uncork were not only carnal, the argument continued, but moral as well—passions for justice. How else to decode those flamboyant rituals of sociosymbolic topsy-turvy, hierarchical higgledy–piggledy?
The events that actually ensued in the later stages of these “merely festive”
occasions, moreover, often slipped the bounds of law’s brief benevolence, suggesting a more serious, sinister, if implicit challenge to prevailing social norms
and structures.120 Properly understood, then, carnival—and other such lawfully
routinized forms of moral transgression—must be understood, the socialist
scholars soberly intoned, as a repressed, subterranean expression of revolutionary yearnings among les misérables.121
It was never quite clear from this account, however, why the perfectly intelligible impulse to periodically escape life’s quotidian constraints, the dreary
decorum of our confining societal roles, should be confined to the “dangerous
classes”. Why would not the rest of us equally appreciate the annual opportunity for an idyllic respite from tiresome courtesies, sundry social inhibitions,
120 Davis (1975, 119) and Ruiz (2012, 249) (describing archival sources from late medieval and early
modern Spain suggesting “a great unwillingness on the part of those who ruled to permit spontaneous outbursts of popular celebration for fear that they might turn into a riot or challenge to
established rule”.).
121 This line of thinking began with Hobsbawm (1959, 6, 57–65, 150–174) (examining political symbolism in the rituals of several early social movements implicitly resisting modern capitalism).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 171
and pedestrian decencies toward people we dislike? Why should only the proletarian rabble have the right be so rude, behave so outlandishly, have so much
fun? And indeed, it turns out that in many places and periods (as least before
the Reformation) all socioeconomic groups did routinely partake of carnival’s
delights,122 as the Mardi Gras of today’s New Orleans continues to illustrate.
So then, was carnival—and the law authorizing its pleasurable peccadillos—
truly a safety-valve, staving off social rebellion (advancing that endgame, at
least)? Or did it represent only the brief sublimation of an incipient sedition
that would ultimately, irrepressibly, take more explicitly political shape? Such
were the bizarre terms of serious debate for at least a generation, beginning (as
one might expect) in the late 1960s. It is hard to know where to begin in
untangling the twisted knot of conceptual confusions, empirical evasions, theoretical sloppiness, and murky methodology—intimated, at least, in our potted
summary above—to which both sides in that now dated (but alas not defunct)
debate sadly succumbed.
Leave that for another day. For present purposes, it is enough to observe that
many reputable academic observers in several disciplines for a number of years
found quite credible the suggestion that law sometimes authorizes the breach of
social mores with a view to venting our pent-up frustrations with the iniquities,
otherwise unbearable, of a miserable lot in life. That notion today still lingers as
an intellectual cobweb, at least, in the mustier corners of social thought.123 At its
most plausible, it pertains only to depravities far more modest than the serious
wrongs here examined. Yet the very gravity of the perceived wrongdoing we
proceed to plumb ensures that, were it to go wholly unchecked, it would throw
into disarray central lineaments of moral order; it could indeed thereby begin to
overpower common practices of rights-restraint that equilibrate—often precariously—many of today’s social conflicts and controversies. And all that without
anyone’s nefarious conspiratorial intent from on high.
III.4 The Failure to Codify Responsibilities Inextricable from a Right
When the term “responsibility” is casually invoked, it is often to discourage
someone from exercising her rights at all. This implication of “responsibility
talk” makes it understandably suspect to anyone much imbued with “rights
122 Ingram (1984, 106–110) and Ruiz (2012, 250, 260).
123 In passing, one might legitimately wonder how anyone ever first stumbled upon the curious idea to
analogize the workings of the social order to those of a steam cooker, rather than, say—just to stick
with culinary metaphors for the moment—a precariously elevated soufflé (ever on verge of collapse,
a more benign trope) or, more menacingly, a meat grinder.
172 ~ Osiel: Rights to do Grave Wrong
consciousness”,124 as are many Americans. To some extent, the problem may
indeed exist merely at the level of talk. We should not confuse the apparent lack
of a widely accepted terminology for discussing social responsibility, as apparent in our excursus on the “Ground Zero mosque” controversy (and our
coming case studies as well), with what is surely our deeper concern: whether
people actually adhere, in their behavior, to whatever such extra-juridical duties
we believe to exist. That said, the absence of an adequate vocabulary for discussing such matters may make it more difficult to perceive and describe what
actually exists in the way of such adherence. Thus, the problem may not be as
bad as it seems (to some), because a limited, inadequate framework for conceptualizing our condition makes it difficult to see what lies before our eyes,
upon close empirical scrutiny at least.
Even so, there is a legitimate concern that our relative muteness about
extra-juridical duty, compared at least to the Victorians and many
non-Western cultures, may contribute to its substantive debilitation. As historian Thomas Haskell writes:
If talk of duty is discouraged or even silenced, may not the substance of
it atrophy as well?. . . for practices and values that we hesitate to
express, much less commend, are unlikely in the long run to retain
their grip on us. Rights talk, with its endless variations on the
inherently self-centered and polarizing theme of “Don’t tread on me!”
leaves much to be desired especially when a culture tries, as ours has,
to make it virtually the only acceptable vocabulary for policy-oriented
public discourse. Given the rhetorical hegemony of rights talk in
America today, there is much to be said for selectively rehabilitating
the language of duty (Haskell 2005, 246).125
The language of moral duty is not exactly alien to our law, however, which
has long sought to discourage certain expressions of lawful activity in the name
of fostering its more “responsible” exercise. There is no inherent contradiction
in striving at once to protect certain forms of legal choice and to guide its
exercise in that way. This sometimes involves putting our collective thumb
on the scale determining how an individual employs his freedom, without
124 Rights consciousness is the disposition to understand one’s relations with others primarily in terms
of legal rights against them. See, generally, Ewick & Silbey (1992).
125 An early effort to contrast rights consciousness with a discourse of responsibility is Glendon (1991,
77) (lamenting “the missing language of responsibility” and “the colonizing effect . . . of legal rights
dialect . . . on popular discourses”); see also, Bellah et al. (1985, xiv, xv, xxiii, 8, 20–21, 24, 81–84,
111, 133, 160, 195, 237, 306, 334) (illustrating through interviews how many Americans lack a
vocabulary to express their genuine intimations of responsibility to others beyond immediate friends
and family).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 173
denying his right to thumb his nose at that attempt. Law in its dissuasive mode,
as it might be called, is often a major form such guidance takes. The law may
seek to dissuade, for instance, through minor procedural hurdles, mandatory
waiting periods,126 geographical restrictions,127 deliberation requirements,128
default positions, and enhanced tax burdens.129 The situations that primarily
concern us here, though, are not amenable to regulation through these modest
methods of dissuasion, because they stand apart in fateful ways—delineated
below—from de minimus, garden-variety wrongdoing of the sort that law so
often blithely indulges.
III.5 “Responsibility-Rights”
Jeremy Waldron has recently identified an intriguing, alluring class of legal
rights from which correlative responsibilities emerge organically, one could
almost say (Waldron 2010).130 What is distinctive about such “responsibility–rights”, as he sometimes calls them, is that “the importation of the element
of compulsion” through an associated set of responsibilities “is not necessarily
to be conceived as something . . . brought in from the outside to limit the right
but as part and parcel of the right and dignity” attendant upon its acceptance
and exercise. Most legal rights are not like this. They are free-standing, in the
126 See, among others, Cal. Penal Code § 12071(b)(1)(D)(3)(A) (West 2010) (demanding 10-day waiting period from time of application to purchase of a firearm).
127 See, among others, 720 Ill. Comp. Stat. 5/24-1(a)(8) (2010) (prohibiting possession of any firearm,
stun gun, taser, or other deadly weapon in any place licensed to sell intoxicating beverages).
128 This has been a focus of recent legislative initiatives concerning abortion, including a 2011 South
Dakota enactment requiring anyone seeking the procedure initially to visit a pregnancy help center
and undergo brief counseling, with a view to ensuring that her decision is voluntary and informed.
Any requirement that such a decision be “informed” would credibly encompass an expectation that
the woman be apprised of the availability of adoption, and of the considerable demand for many
infants put up for adoption. Several states have recently enacted precisely this requirement. See, e.g.,
2011 N.C. Sess. Laws 405, Section 90-21.82(2)(d), available at http://www.ncga.state.nc.us/Sessions/
2011/Bills/House/PDF/H854v6.pdf. Also, relevant here is the fact that nearly 40 percent of all adoptions today cross lines of ethnicity and class, albeit mostly in adoption by educated Western couples
and single women of infants from poor Latin American and Asian countries.
129 Cal. Rev. & Tax Code § 30101 (West 1994); Cal. Rev. & Tax Code § 30123 (West 1989); Cal. Rev. &
Tax Code § 30131.2 (West 1999) (gradually increasing tax rate per pack of cigarettes over time from
37 to 87 cents).
130 Casting about for terms, he alternately calls this “the responsibility-form” of rights, responsibilities
arising “in and around rights”, “rights conceived as responsibilities”, and sometimes simply “a
responsibility-right”. In this conceptual configuration, four features coalesce to link rights inseparably with responsibilities: “1) the designation of an important task, 2) the privileging of someone as
the person to perform the task, making decisions which it requires, 3) doing so in view of the
particular interest the they have in the matter, and 4) the protection of their decision-making sphere
pursuant to this responsibility against interference by others and even by the state (except in extreme
cases)” (Waldron 2010, 9).
174 ~ Osiel: Rights to do Grave Wrong
sense that any relation to associated duties is contingent, reflecting simply a
legislative calculation that public policy might be well-served by assigning obligations in this fashion, to someone who also has a given right. Any further
legal responsibilities on him are primarily those created by the rights of other
people with whom he deals, by how their rights impede or set formal limits on
the exercise of his own—the third species of rights-restraint identified earlier.
The most convincing candidates for designation as responsibility–rights,
Waldron rightly observes, arise from well-established “social roles” that—of
necessity, by their nature—combine authorizations with obligations. These rights
are granted (as generously as they are) in the understanding—indeed on the
implicit condition—that those endowed with them at once acknowledge certain
responsibilities associated with, even inseparable from, the particular role or
status.131 Our law would be very reluctant to confer the right at all, in fact, were
it not understood as virtually entailing these obligations; this is so even where—
especially where—they must remain only imperfectly reflected in such law.
Thus, for instance, the law universally regards the bringing of a child into the
world as at once bestowing rights and imposing duties upon its parents concerning their offspring’s upbringing. The constitutional right to bear arms is
similarly conditioned (in some accounts) on responsible discharge of membership in a regulated militia with civic duties to protect the republic. When
serving as jurors, Americans both have rights to decide the fate of a defendant
and attendant procedural duties governing their deliberations to that end.
Some of the social roles Waldron has in mind fall readily into the familiar
legal category of fiduciary. A financial trustee, for example, possesses rights of
ownership naturally paired with her duty to manage trust assets in a responsible
fashion, consistent with the terms of the trust instrument. There is, in fact, an
element of constructive trusteeship—uncodified, metaphoric—in virtually all
of Waldron’s examples. It is significant for the present purposes, however, that
the law of constructive trusteeship does not extend so far, does not entirely
colonize this realm of perceived ethical obligation. Some of the roles he mentions are freely chosen, whereas others are imposed by fiat. Even when legally
mandated, the right-holder derives a certain characteristic dignity, Waldron
suggests, from the fact that “the element of compulsion” is conjoined to “a
clear sense of empowerment and choice”.
131 This proposition must be significantly qualified, at very least, insofar as most social roles—“parent”
or medical “doctor”, for instance—display only a limited essential core, and vary greatly in their
contours, their particular configuration of rights and duties, from one society to the next and over
time. For instance, some countries understand the right to vote as indissociable from a duty to do so,
whereas others do not.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 175
The law demands that anyone occupying such a role apply her mind with
some care in determining how the particular amalgam of rights and responsibilities would most wisely be exercised in often-challenging circumstances. Since
the law fails to incorporate the full range of moral duty such roles entail, their
occupants become entitled to a perilous discretion in exercising the rights these
bestow. The amplitude of this discretion, over matters of such moral gravity,
endows these positions with much of their special dignity. The esteem they
receive hence does not derive simply from their intrinsic importance in serving
essential purposes. The rest of us are asked to place profound trust in them to
fulfill these responsibilities, despite law’s failure to specify what that might entail.
The main rights discussed in this article can be fruitfully understood in such
terms. To preview our later analysis, the right of a state and its soldiers to kill
enemy civilians knowingly but unintentionally, as an unavoidable concomitant
of war, is acceptable only because we view that right as bound up with a responsibility (imperfectly codified) to take every reasonable precaution to minimize this harm. The right of a hospital patient to decline medical treatment,
even when his life depends on it, is tolerable because the autonomy this right
protects is accompanied and qualified by an uncodified responsibility of care
for oneself, to treat and treasure one’s body as the inalienable repository of an
inherent human dignity. Similarly, the right of a woman over her reproductive
capacities, properly understood, may be seen as intrinsically fused to an uncodified responsibility to take reasonable precautions against conception of an
undesired fetus.132 Even the citizen’s right to vote might be conceived as connected to a civic responsibility, equally lacking in juridical reflection, to pay
some attention to the policy positions of the candidates seeking office. In certain countries today, the right to vote is accompanied by a legal duty to do so.
Even in the USA, before mass urbanization in the late 19th century, there once
existed significant communal pressure to turn out at the polls, according to
some historical accounts.
The social role of the professionals—physicians, military officers, and lawyers—is very much at work in our chief examples, often rendering a questionable exercise of right more attentive to accompanying responsibilities. Yet
where the responsibilities at issue bear on matters of life and death, we are
troubled by law’s failure to codify these, and more reluctant to trust informal
constraints as a sufficient check on the corresponding rights. In any event,
reliance on the exogenous intercession of such professionals does not address
132 This is not to suggest that such a responsibility necessarily entails a further duty to bring such a fetus,
once conceived, to parturition.
176 ~ Osiel: Rights to do Grave Wrong
the problem when the overbroad legal rights at issue are those of the relevant
professionals themselves.
Our case studies vary greatly in how much self-consciousness people with
special moral responsibilities have about occupying any recognizable role or
distinctive status. People who are sick rarely think of themselves in such terms,
for instance—unless they have read Talcott Parsons on the matter, after which
they may never cease to do so, whenever they fall ill (Parsons 1951, 285–315).
He famously observed that sickness is not merely a biological departure from
how a society understands the meaning of health (itself partly a social construction), but also involves a social role, entailing the patient’s right to be relieved
from normal responsibilities at work and home in exchange for a corresponding
duty to defer to medical counsel on how to restore his health and thereby
resume such obligations. Someone perceived as malingering, unduly extending
and exploiting the moral rights accorded him through illness, is no longer
regarded as sick at all, hence no longer entitled to such dispensations.
Anyone thought to be entering this ethical gray zone is likely to find himself
gently reminded that pressing duties of his normal life increasingly await his
attention.
Unlike the sick, licensed professionals are accustomed to conceiving of themselves as inhabiting a special role through which society defines particular authorizations and expectations of them. Parents may occupy a mid-point on this
continuum. They appreciate that society imposes considerable duties upon
them in that capacity. Yet to enter into the parental role as such entails no
more than a “biological” step, strictly speaking. It therefore need not reflect the
same measure of anticipatory deliberation, calculated self-discipline, and
long-term training as becoming, say, a physician. When parents neglect or
abuse their children, the state reminds them—if their neighbors have not already—that they are not free to regard their nuclear family entirely as a haven
from the world’s demands upon them; in creating a family, they embark upon a
broader social endeavor richly imbued with role-like encumbrances, juridical
and beyond. Our cases vary as well in the extent to which others, those counseling restraint upon the right-bearer, see themselves as enforcing norms peculiar to that person’s special role and status, or rather simply urging him to do
what a more generic moral standard requires of us all.
Sometimes they may claim only a right to restrain another’s exercise of entitlement, whereas at other times they clearly feel themselves under a communal
duty to do so. The distinction has some practical import, because enforcing
social mores will sometimes be quite costly for an individual, deterring him
from so doing on the basis of a mere right to that effect. Only if he believes
himself subject to a social duty, however diffuse its terms, will he be more
disposed to bear such costs. In the latter case, the authorization to restrain
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 177
another right-bearer may itself become something of a responsibility–right. It
need not be attendant upon any particular social role, other than simply
co-membership within the relevant community, defined precisely by its
shared ethical standards. It bears mention here that our responsibility (moral
or legal) to help another person honor his own duties (moral or legal) is a
possibility that entirely eludes Hohfeld’s seemingly comprehensive typology of
rights and duties. So too our occasional moral duty to assist such a person
secure in practice his most fundamental rights, at least when he confronts
hostile opposition to their exercise.
We should here recall our early discussion of the proposed mosque and
Islamic cultural center at Ground Zero. In contemporary America (in contrast
with medieval England, in particular), ownership of property in land is not a
right associated with any distinctive role or stature within the social order.
Compared to other forms of wealth, it does not accord the owner any unique
dignity. Its essence is simply the power to exclude others. All sophisticated
accounts, in fact, conceptualize private property as a mere “bundle of sticks”,
susceptible to periodic rearrangement. Its precise contours are continually in
flux, subject to change in the law of zoning, environmental protection, and
public nuisance.
That land may readily be put to quite disparate uses and suggests that this
right does not designate any single, vital societal function. Since property is so
readily alienable from one person to another in exchange for money, and may
be taken by the state for public purposes, the right to possess and use it at a
given moment cannot entirely foreclose the concerns of likely future occupants.
In short, although private property is a central institution of market society at
large, an individual’s or company’s property right in land lacks the essential,
irreducible moral core that could bestow upon its holder an inherent dignity of
the sort evident in Waldron’s responsibility–rights.133
These considerations may have subtly influenced the public dialog over possible use of the Ground Zero locale for a mosque. The fluid, inconstant
133 To be sure, property owned in common does often attach responsibilities to rights of use, duties
sometimes uncodified but effectively enforced in extra-juridical ways. Thus, though economists
often view private property as the optimal solution to overuse of a “commons”, empirical studies
suggest that no such “tragedy” need to ensue if local custom firmly regulates usage (Ostrom 1990,
10–13, 17–20, 60–67, 73–77). This is admittedly only one of the several conditions necessary to
prevent depletion, and there would appear to be no special dignity associated with the exercise of
responsibility-rights to a commons. Yet the point for present purposes is simply that legal codification and judicial enforcement of these duties are foregone in conscious reliance on informal
customary restraints, which remain essential to any stable equilibrium among competing claims
on the shared bounty.
178 ~ Osiel: Rights to do Grave Wrong
character of the duties associated with the property right may have led many
Americans to assume that further obligations, based merely in a widely shared,
intensely felt sense of cultural appropriateness, might readily be imposed on the
owners of this piece of property. The right to build a mosque would then be
perceived as merely a particular “stick” unproblematically plucked from an
already ever-shifting bundle. Yet unlike rights of parenthood or citizenship,
the right to own land subjects its owner to no special moral responsibilities
inherent to it. Having acquired no elevated stature in purchasing the land, its
owners did not thereby subject themselves to any extraordinary duties concomitant to such a social status. This intuition likely informed the views of
those who found the mosque’s location unobjectionable, for it suggests that the
owners had no particular responsibility to use their property in any way other
than they might lawfully desire.
On the other hand, it is true that the more common, layman’s view of
property trades on an essentialist notion of land, in particular, as a single indivisible thing, insusceptible to decomposition into constituent conceptual
elements. From this simpler understanding of property, it may follow that if
a piece of property has somehow become imbued with public purpose in a way
that precludes its use for entirely private purposes (however, important to its
owner), then it should be formally “taken” by the state, and the owner duly
compensated. The site of the “9/11 mosque”, therefore, became difficult to
conceptualize within any of the terms readily at hand, for no one argued that
the federal government or City of New York should go so far as to acquire the
property outright, even as most people undoubtedly wished to see its use restricted in ways, they acknowledged, that our law could not otherwise constitutionally effect.
PART IV
IV.1 Two Detailed Illustrations of Rights to Do Serious Wrong
IV.1.i The Right To Decline Medical Treatment
American law accords a right to decline medical treatment in many circumstances where one’s survival depends on receiving it. The exercise of this right,
as through withdrawal of existing treatment, is no longer especially controversial where the patient clearly is terminally ill, unlikely to live much longer, and/
or in severe, permanent, irremediable pain.134 Yet the legal right to decline
134 See, e.g., In re Quinlan, 355 A.2d 647, 664 (N.J. 1976). On public opinion, see Pew Research Center
(2006) (finding that over 80 percent of the Americans support the legal right to decline medical
treatment, but only 46 percent approve of physician-assisted suicide).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 179
life-saving treatment is much broader. It extends to all competent adults under
any circumstances whatever, whether or not suffering any of the preceding
conditions.135 As in one reported case, a 21-year-old college student, delivered
by a friend to the hospital emergency room, is entitled to decline the penicillin
that would, because he is suffering from advanced pneumonia, save him from
imminent death and grant him several healthy decades. The patient offered no
reason for his decision and displayed no evidence of mental abnormality apart
from the decision itself. Such situations arise with a frequency initially surprising to those of us outside the medical and nursing professions.
Most physicians apparently consider it morally unacceptable to withhold
treatment in such circumstances. Public opinion, reflecting conventional morality, surely endorses their reluctance to respect patient autonomy at such
times.136 Reliable reports suggest that doctors regularly seek to circumvent
the patient’s expressed desire to exercise his right to decline treatment.137
They may do so by juridical means, seeking a court order requiring the patient
to receive, for example, the blood transfusion he has declined on religious
grounds.138 More often, extra-juridical urgings are brought to bear upon the
patient, via family and friends, the people best situated to exercise such moral
suasion. These persuasive efforts may be subtle at first. They then shift from
reasoned argument, based on demonstrable scientific facts, to increasingly manipulative forms of emotional “arm-twisting”.139 They must of course stop
135 Orentlicher (2001, 67). See, e.g., In re Conroy, 468 A.2d 1209, 1225–1226 (N.J. 1985).
136 The official position of the Catholic Church has always been that suicide is a mortal sin, and the
public stance of several Protestant denominations is not far different. This moralizing posture and its
secularized residue ensure that a certain stigma continues to attach to attempts at suicide, even if the
successful suicide frequently elicits a degree of pity overpowering any such disapproval. The possibility of enduring this stigma often likely weighs into the decision to undertake a suicide attempt,
since a high proportion of such attempts fail (and are known to fail), leaving one to face the
moralizing music. When physician-assisted suicide is officially sanctioned, however, this is not
the case. These “costs of suicide . . . all disappear”, Richard Posner observes, “if a physician is the
agent of death – even the stigma cost, because if killing a person who wants to die is a lawful medical
‘treatment’, this signals that suicide is proper, at least when a physician by assisting in the act
validates its propriety” (Posner 2012).
137 Orentlicher reports: “I have heard many doctors describe cases in which they have imposed unwanted life-sustaining treatment on relatively healthy patients. In such cases the physicians indicated
their belief that patients should not be able to decline care that would give them the opportunity for
many years of healthy life” (Orentlicher 2001, 69). Orentlicher is a physician, law professor and
consultant to hospitals, who also long served as Director of the Division of Medical Ethics for the
American Medical Association.
138 See, e.g., Stamford Hospital v. Vega, 674 A.2d 821, 826 (Conn. 1996); Fosmire v. Nicoleau, 551 N.E.2d
77, 79 (N.Y. 1990); In re Estate of Dorone, 534 A.2d 452, 455 (Pa. 1987).
139 Miller (1981, 22) (describing “manipulation and undue influence” by physicians and family members as the “less forceful, but more pervasive cousins . . . of coercion”). On how the wishes of the
180 ~ Osiel: Rights to do Grave Wrong
short of overt coercion, the sort that would be involved, for instance, in physically restraining the patient from leaving a hospital. Those who study medical
ethics from an empirical perspective report these diffuse forms of social pressure to be pervasive and often effective. Such measures must remain surreptitious wherever a medical professional becomes involved, because they amount
to refusing to respect the clearly expressed intentions of competent adult patients vehemently insisting on exercising their clear legal rights.
There is some nontrivial risk of liability for medical professionals, personal,
and organizational,140 when they participate in such rights-obstructive efforts.
To be sure, the person whose life is saved through the nonconsensual medical
intercession is, as a practical matter, unlikely to pursue legal action thereafter
against his saviors. Since his legal claim is so jarring to ordinary morality, he
would also likely meet little sympathy from a judge, much less a jury. In this
entire domain, law’s effective influence on human conduct appears remarkably
weak, either in deterring medical professionals141 and family members from
violating the patient’s right to decline treatment, or in empowering him to sue
them thereafter for doing so. Since the claims of law and lay morality here stand
family members become more influential on physicians as the patient in intensive care becomes less
able to assert her desires, see Zussman (1992, 88).
140 Trials courts have occasionally ordered patients with young children to undergo life-saving medical
treatment (usually blood transfusions for Jehovah’s Witnesses), despite the very weak legal basis for
such an order (Orentlicher 2001, 69). Where the patient later appeals the order, he has sometimes
prevailed on the merits. But the petition for an injunction, at least, has also been mooted by the post
facto nature of the appellate ruling: the transfusion has already successfully occurred, or the patient
would presumably not be in a position to challenge its legality. Measuring relief would therefore
entail attaching a value to the plaintiff’s right to choose death over continued life, surely a novel
challenge (to put it mildly) for any expert witness.
141 Many clinicians have mistakenly believed that they were under no legal duty to respect a nonterminal patient’s expressed desire to decline life-sustaining treatment [Solomon et al. 1992, 14, 20).
Ethnographies that examine end-of-life decision-making reach sobering conclusions about law’s
efficacy in protecting patients’ decision-making rights. See Zussman (1992, 220) (“Although physicians often complain about the law [of informed consent], they know little of its details and often
ignore its mandates . . . . [E]ven in the occasional instances in which patients do withhold consent
from procedures physicians wish to initiate, physicians often proceed on their own inclinations”.);
Anspach (1993, 93, 124) (“[T]he [de facto] decision-making process was organized to limit the
options available to parents [concerning withdrawal vs. maintenance of life-sustenance for neonates] and to eliminate parents from some decisions altogether . . . staff usually do not employ an
informed consent model but rather use practices designed to elicit parents’ assent to decisions
professionals have already made”.); Seymour (2001, 84) (describing a hospital’s “general strategy
of eliciting agreement to decisions that have already been made” as a means to “diffuse responsibility
for death by drawing . . . patients’ families into the decisionmaking process”.); Millman (1976, 193,
198) (describing mid-1970s hospital practices by which medical personnel routinely deprecated
patients’ apprehensions about then-highly risky surgery, practices through which “the patient
loses whatever small amount of autonomy he held. . .”, and which “illustrate just how systematically
the neutralization of mistrust is built into patient care”.).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 181
at such remove, it is only through informal social influences of the sort just
described that the potential for more frequent clashes is held at bay. Since we are
confident that most patients will be subjected to extra-juridical remonstrance,
we are able to live comfortably with a legal rule authorizing conduct widely
considered wrongful; we can endure the rule even though it is so formally
underinclusive vis-à-vis claims of ordinary morality upon both patients and
their professional caregivers. It is the misalignment of law and community
morality that creates the impetus to apply extra-legal pressures at these moments—evanescent, but decisive to the patient’s life prospects.
Why is it, then, that law cannot be written to track the contours of morality
more closely here? To answer, a brief summary of recent legal history is necessary. In the first litigated cases from the mid-1970s, state courts concluded that
it is possible for people to become so ill that further treatment imposes greater
burdens than benefits. The right of the patients to refuse treatment was held to
increase, and the state interest in preserving their life to decrease, as the prognosis dimmed and as treatment became more burdensome.142
This proved a legally unstable equilibrium, however, because it required the
state, though its courts, to determine when someone’s life had lost enough
meaningful vitality that he should be permitted to choose death. This was
unacceptable because few were willing to trust the state with such power to
“play God” (Orentlicher 2001, 67). It was far more important to ensure that the
state not violate basic duties to its citizens than that an individual not violate
moral duties he might arguably have to himself.143 As a practical matter, it
simply proved impossible to draft a convincing rule that could realistically hope
to limit the discretion of judges to impose their own notions—idiosyncratic and
morally arbitrary—of when human life had ceased to be “worth living”.144
(Orentlicher 2001, 16). Consensus began to emerge in the jurisprudence that
this is a decision one can only make for oneself, and that the law had best
extricate itself entirely from the process of reaching it.
142 In re Quinlan, 355 A.2d 647, 664 (N.J. 1976).
143 On suicide as a violation of moral duties to self, see Kant (1930, 124) and Denis (2001, 32–36, 67–69,
100–102). Many reject the very notion of duties to oneself, however. Some view it as logically
incoherent insofar as, in one of Kant’s formulations, “the I that imposes obligation is taken in
the same sense as the I that is put under obligation”. J.S. Mill further objected that the idea invites
undue state paternalism. Bernard Williams complains that the notion of duties to self is ill-suited to
the inherently social nature of morality and therefore quickly becomes a pretext for pursuing personal pleasure in the guise of honoring obligations.
144 There was particular concern that such judicial determinations would come to rely implicitly on
utilitarian assessments of the patient’s societal value, rather than on deontological notions of inherent worth and dignity as a human being (Orentlicher 2001, 71).
182 ~ Osiel: Rights to do Grave Wrong
This is how our rules evolved toward the absolute right for competent individuals to refuse unwanted treatment. Two factors thus combined to yield this
“categorical” approach, as Orentlicher calls it: first, the “infeasibility of
case-by-case determinations”, i.e., the difficulty of “trying to decide whether
the decision to die is morally justified in a given case”, and second, the fact that
“treatment withdrawals typically involve morally justified deaths. . .”, in that
the vast majority of patients requesting such withdrawal are clearly at death’s
door (Orentlicher 2001, 21).
Conventional mores likely continue to endorse the older view that a patient’s
prognosis for recovery is relevant to whether he should be allowed to refuse
medical care. By implication, such prognosis is also relevant to how far others
may legitimately go in their advocacy of treatment—in effect, efforts to discourage him from exercising his right to forgo it. This feature of ordinary
morality finds its way back sub rosa into law’s implementation where the patient
is no longer competent, so that treatment decisions must be made by surrogate.145 Formally speaking, an incompetent patient (acting through her surrogate) has no less right than a competent one to refuse treatment or to have it
withdrawn. In practice, however, courts adopt a sliding scale, demanding much
clearer evidence of an incompetent patient’s wishes to that effect where she is
neither terminally ill nor likely to be permanently unconscious. Hence, patients
with grimmer prognoses do turn out to have a more effective legal claim to
refusing treatment.146 In this way, community morality covertly infuses the
law’s interpretation and implementation so as to further constrain the exercise
of this particular right to do wrong.
These situations arise with some regularity. When treatment is likely to be
very painful or highly risky, it is common for both patients to express a strong
initial intention to decline it and for informal pressure, professional, and familial, to be vigorously applied—with considerable efficacy—against such
rights-assertion. There is little discussion of this within the literature of medical
ethics. What one does find there is confirmation that advance care directives,
though now signed by a significant percentage of patients, often fail in their
145 Emanuel & Emanuel (1992) (identifying, on the basis of empirical studies, several serious ethical and
legal problems with how patient proxies are actually used in such circumstances).
146 Many actual decision-making situations are further complicated by a lack of clarity over whether, in
rejecting the patient’s refusal of treatment, his physicians and family members are negating his
particular decision to invoke that right (at times by challenging the evidence of his intention to
do so as “ambiguous”) or simply refusing without explanation to recognize such a right at all, for
anyone. In either case, they have no legal basis for, in effect, vetoing his choice and imposing their
own. To be sure, a patient’s oral expressions of her intention regarding emergency resuscitation, in
particular, are often genuinely ambiguous, in that they may change from one day to the next
(Kaufman 2005, 259–266, 272).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 183
purpose, because physicians decline to honor their terms.147 These documents
are admittedly sometimes too vague to provide much guidance about particular
forms of possible resuscitation. Yet physicians often go further, striving to unearth any such discoverable ambiguity in the document and read it against a
patient’s choice to die (Emanuel 1993, 9, 13).
Here too, there is some modest disparity, at least, between ordinary morality,
within the general population, and prevailing sensibility within certain segments of the medical profession—though less so the nursing. Whereas the
public clearly believes that patients who are near to death should have their
wishes respected (that treatment be withdrawn), surgeons in certain specialties
reportedly continue to think “heroic” intervention should be applied to save
lives even where prospects for full recovery are bleak.148 They believe, in other
words, that at such times they have the moral authority to do something legally
impermissible. The result is that, on many accounts, physicians seek to circumvent the patient’s preference to exercise her right to decline treatment, both
where conventional morality endorses such professional intercession (because
her ailment is readily curable) and where it does not (because she is clearly,
inexorably near to death).
It is unsurprising that there is little professional inclination in any quarter to
reflect upon when and how physicians or family may dissuade patients from
exercising rights to withhold treatment, or to investigate empirically how often
and in what circumstances such intercessions actually occur. This disinclination
owes largely to the fact that physicians have no interest in disclosing how professional practice sometimes sits uneasily with the law. The resulting absence of
serious discussion debilitates public understanding of our recurring question:
when is it defensible to employ (which sorts of) extra-juridical means to restrain
(what types of) rights assertiveness? In the predicament of treatment withholding, that question presents itself vividly, inescapably—often wrenchingly, in
both the emotional and ethical senses of the word.
Surely the strongest case, in ethical terms, for disregarding a patient’s initially
asserted right to decline life-saving treatment arises with victims of catastrophic
life-altering injuries, people who are often momentarily traumatized and very
147 See, among others, Hardin & Yusufaly (2004, 1531); Collins, Parks, & Winter (2006, 379); Lynch,
Mathes & Sawicki (2008, 177) (discussing physicians’ consistent failure to honor advance directives
calling for withdrawal of life support, and thereby concluding that “[t]the current legal structure has
proven impotent to resolve this problem”.).
148 Physicians specializing in critical care, in contrast, rarely press for continued treatment in such
situations. But they tend to be highly solicitous of family members, who generally wish to see every
possible measure taken to lengthen a loved one’s life. Correspondence with Professor Susan Shapiro,
American Bar Foundation, who is engaged in long-term ethnographic observation of end-of-life
decision-making in an urban research hospital (July 2011).
184 ~ Osiel: Rights to do Grave Wrong
pessimistic about ever enjoying life again in any way. Studies indicate that such
patients, if they can be prevailed upon to accept a highly invasive treatment and
undergo a rehabilitation period, frequently adjust quite well, in psychological
terms, to living thereafter with even the profoundest of life-long disabilities.
Their felicific recalibration is now, from such research, eminently predictable
(Bronsteen, Christopher, & Jonathan 2008, 1526). It is even becoming standard
practice to present the conclusions of such research during the very process of
seeking the patient’s informed consent to highly invasive, extremely painful
treatment.
Here, we are presumably comfortable with allowing physicians to resist a
patient’s early insistence on declining life-saving treatment, to the point in
extremis of altogether ignoring the patient’s most heated, strenuous, perhaps
even violent protestations. We are therefore likely to indulge medical characterization of the patient’s first objections as “provisional” or “preliminary”,
even when saving the patient’s life permits no delay for his later reconsideration.
In present terms, we can say that common morality then appears to endorse
physician efforts to obstruct the patient’s unambiguous, vigorously claimed
legal rights. We accept the law’s failure to track our ethical intuitions more
perfectly, its underinclusiveness vis-à-vis the full scope of our normative concern, because we expect medical professionals to dissuade or otherwise constrain their patient from exercising his rights. We wish them to act in light of
prevailing moral intuitions and concerns, which we are confident they share.
These intuitions derive from an implicit view that treatment of even our own
body is not entirely “a pure right of willful choice”, as Waldron puts it. Rather,
we may sense that “every human being [ought to be] treated as a repository (but
not a proprietor) of a parcel of human dignity, in the name of which that person
may be subjected to a number of obligations that have to do with this parcel’s
preservation. . .” (Waldron 2010, 22). This language admittedly sounds an odd
ring to the modern ear, but the underlying idea has a long, distinguished history
in early modern Western thought, Waldron shows. Despite its theological origins, it clearly endures within contemporary moral sensibility, albeit without a
satisfactory, secular means of expression. A more felicitous mode of articulation
would be necessary to give adequate voice to our apparently powerful impulse
to dissuade the nonterminal patient from exercising his right to refuse
life-sustaining treatment.
Waldron writes that he is unsure about how to classify “the right to refuse
life-saving treatment in all circumstances” within a satisfactory understanding
of rights. He nonetheless suggests that this right may fit well within his concept
of “responsibility rights”, because it entails correlative responsibilities—of
self-respect, based in an “objective conception of inalienable human dignity”
to which we implicitly subscribe (Waldron 2010, 26). In light of these
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 185
responsibilities, certain exercises of the right might be legitimately tempered,
even actively hindered by others. To be sure, the medical patient as such does
not occupy a “dignified social role” in the manner of a military officer (or even
a parent, on Waldron’s account), to take our two other chief cases. Waldron
would respond that, simply as a member of the human species, the patient—
whose life is temporarily in peril but who suffers no terminal affliction—occupies a moral status or stature inconsistent with his rejection of life-sustaining
care. In one respect, in fact, the patient does resemble a military officer, for
instance, in the implicit quid pro quo of right for responsibility. For illness itself
is something of a social role, with both duties and dispensations distinctive to it,
as earlier observed.
Moral intuitions of the sort that Waldron (and Parsons) adduce are likely
what lead us to indulge the sometimes illegal acts of medical intervention
described above. At such moments, we are not simply deferring to expansive
claims of professional authority. Such claims often rest on no more than the
hubristic impulse to put technical skills on maximal display, regardless of other
values thereby imperiled. Rather, we turn a blind eye to some extravagant
professional “indiscretion” for good reasons of our own, because it serves
values to which we are deeply if somewhat mutely committed.
We resign ourselves to the fact that our normative commitments at these
times cannot find full reflection within legal doctrine, because we fear that such
legalities might grant an arbitrary power to the state, whether to take life or to
preserve it, against the patient’s will. Instead, we tacitly trust to informal, sub
rosa nullification—a process equally indifferent to “rule of law” commitments—for ensuring that medical professionals and hospital organizations
have no reason to fear liability. It is almost as if the frail, personal authority
of the charismatic physician could somehow miraculously mediate between the
equally bold but inconsistent claims of law and science, each with a powerful
institutional phalanx at its command. When we examine the “law in action”
here, whispered in hospital corridors and clinic stairwells, we find in fact an
impenetrable thicket of subtle obstacles, virtually invisible to us outsiders, to
effective discipline of physicians covertly employing illegal means to prevent a
patient from “abusing” these rights. We may wish to think of such practices as
continuous with the efforts—perfectly lawful—of the physicians and the family
members to dissuade patients, through reasoned argument or emotional
appeal, from the self-destructive path they have initially chosen.
But that is decidedly not the perspective of the law—all too clear here—“on
the books”. It should go without saying that there are innumerable ways in
which this bizarre set of arrangements could easily go terribly wrong. Yet it has
rested in relative equilibrium for many years, insiders report, with quiet private
resolution of the very occasional challenge. This set of restraints on patients and
186 ~ Osiel: Rights to do Grave Wrong
their most fateful decisions can hence fairly be described as a well-settled practice. Even a profession accustomed to multimillion dollar judgments against its
members and facing declining public trust (Mechanic 1996, 181) remains content to venture upon such perilous terrain in the apparent belief that its
well-meaning efforts to patch the undoubted rift here between law and lay
morals will be indulged by a jury of what always are, after all, laymen.
The measure of trust implicit in that calculation is breathtaking, however
beguiling the underlying behavior it evokes and indulges. From a legal perspective, it is astonishingly risky, if from a moral or simply human viewpoint, quite
moving, poignant in its elemental, life-affirming exuberance. From a sociolegal
standpoint (our chief concern), its magic lies in its seeming transcendence of
self-interested professional caution, its impulsive indifference to mere positive
legality, in service of what would once simply have been called—before our
“sophisticated”, snickering embarrassment at the notion—natural law. For
today, it is only within the terms of that quaint, antediluvian doctrine that
the notions of duties to oneself—and of legitimate guidance from others in
fulfilling them—could possibly make any sense at all. These affecting circumstances are admittedly peculiar in certain ways, but are not uncommon—arising whenever a patient whose immediate survival even briefly depends on
medical care begins to lose her will to live (more than her prospects for recovery
would “objectively” suggest), begins to doubt whether “to be” is really so obviously preferable to the alternative, ever-available to us all. Despite their idiosyncracies, such situations are highly instructive about the general sociolegal
conundrum identified by our ideal-type, helping reveal its nature and contours.
The chief source of enduring doubt about these particular arrangements for
bridging a gulf between law and community mores is whether we are comfortable with the unusual measure of nontransparency here, leaving so much of our
actual practice on matters of such ethical import largely in the shadows. Still,
this is not central to present purposes, since most of the informal push-back
against patients who seem to insist on their right to die is perfectly legal, at least
in its initial stages. What is crucial is that such countervailing pressures (in all
forms, lawful and otherwise) combine to make it possible for the law to formally
uphold a more pristine Kantian ideal of individual autonomy than—in our
heart of hearts, when push comes to shove—we are actually prepared to deliver.
Those noble ideals of “critical” morality—even when enshrined into law—
simply promise far more than common morality will abide.
IV.1.ii Collateral Damage in War
International humanitarian law, which seeks to establish the acceptable means
and methods of armed conflict, offers another fruitful example of an informally
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 187
constrained right to do grave wrong. This body of law limits the extent to which
belligerents may cause unintended harm to civilian persons and property.
When at war, states may not target civilian interests intentionally, but are
permitted to inflict “incidental” damage to them if not clearly excessive in
relation to the “military advantage anticipated” from a given use of force.
This rule is often colloquially described as concerning “proportionality” in
regard to “collateral damage”. The law here authorizes (and at once restricts)
such harmful conduct because it is generally impossible to make war in any
other way, and some wars—of self-defense and humanitarian intervention—are
just, from the perspective of conventional morality.
Sources agree that, in seeking to restrict the scope of permissible civilian
harm, international law is here engaged in a laudable objective. Once war has
begun—however wrongfully, through aggression—it is surely better to limit its
destructiveness than let it follow a course utterly indifferent to humane values.
Yet though it has long been part of customary international law, and more
recently embodied in both the Geneva Conventions149 as well as the
International Criminal Court’s statute,150 the proportionality rule has never
been well-defined. It has attained no greater precision in recent years, despite
proliferation of international criminal tribunals and considerable scholarly attention to the matter.151 Commentators who agree on little else concur in this
respect.
Soldiers themselves have little idea what the rule really requires of them,
except in the most obvious circumstances, where the ethically proper course
of action can be readily ascertained without it.152 Military prudence alone—
under the “economy of force” principle—often dictates the same measure of
restraint, i.e., without need for recourse to law. The rule itself therefore has little
influence on combat conduct, officers readily acknowledge.
Prosecutions for disproportionate force have been virtually nonexistent, in
no small part because the legal standard is so lenient, encouraging judicial
149 Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection
of Victims of International Armed Conflicts (Protocol I) Art. 51(5)(b), June 8, 1977, 1125 U.N.T.S.
I-17512.
150 Rome Statute for the International Criminal Court, Art. 8(2)(b)(iv), July 17, 1998, 2187 U.N.T.S. 90.
151 Dunoff, Ratner & Wippman (2010, 851) (“Proportionality in self-defense is an ill-defined concept”.); Henckaerts (2009, 470) (“The main problem with the principle of proportionality is not
whether it exists, but what it means”.).
152 Hence the express decision of the ICTY Prosecutor, when investigating the 1999 NATO bombing of
Kosovo and Belgrade, to seek out only situations of alleged violations “where the excessiveness of the
incidental damage was obvious”. ICTY, Final Report to the Prosecutor by the Committee
Established to Review the NATO Bombing Campaign Against the FRY, PR/P.I.S./510-E, June 13,
2000.
188 ~ Osiel: Rights to do Grave Wrong
deference to the military commander’s situational judgment. There are good
reasons for such deference. Especially where they may provide the basis for
criminal liability, legal norms must display a measure of generality inconsistent
with the extent to which proportionality determinations in war involve
fine-grained, case by case assessment of unique factual particulars (Osiel
1999, 246). Moreover, no one really has any well-developed idea about how
to engage in the required balancing between civilian lives and military gains, i.e.,
how the relative weights are to be attached.
The stress of combat and accompanying “fog of war” also set powerful epistemic limits on what can be known ex ante about the precise measure of force,
and attendant civilian harm, necessary to achieve a given battlefield goal
(Lieberman et al. 2005). This uncertainty often originates in the elusiveness
and inscrutability of enemy “morale”. Further distortion in judgment is introduced through the biases recently explored by cognitive psychologists, even as
armies today strive to redesign training programs and decision processes with a
view to overcoming these, albeit with modest prospects of success (Janser 2007).
Epistemic limits and decisional uncertainties are even greater with regard to
larger operational and strategic aims. Experts cannot agree, moreover, on
whether the civilian harm relevant to proportionality assessment should be
only short term or also longer term, though much depends on which position
the law adopts.153 All these problems arise even before one reaches more familiar concerns about practical obstacles to attaining jurisdiction or custody
over apparent violators, rooted in the power of states, especially major military
powers, to thumb their nose at international law.
Many people throughout the world are greatly dissatisfied with this state of
affairs, however.154 Civilian deaths in war today are closely scrutinized by NGOs
and academicians, employing accepted epidemiological methods,155 and evoke
153 Commentators are also unsure about how or whether the requirements of proportionality are to be
distinguished, in application, from those of “military necessity” and “feasible precautions” in protecting civilian interests, doctrines with which they at very least overlap extensively. Nor is there
much agreement on whether the mental state for personal liability is subjective or objective. Neither
is there consensus about the extent to which the jus in bello rule on proportionality is extricable in
practice from the jus ad bellum rule of the same name, governing when a state’s exercise of force has
exceeded its right of self-defense against armed attack.
154 Ronen (2009, 186) (arguing that current international law on the subject is “morally unsatisfactory”
and endorsing strict liability of states for battlefield harm to civilians). These concerns are not widely
shared by the U.S. public, however (Tirman 2011, 12, 255) (asserting, on the basis of opinion survey
data and limited media coverage of the issue, “the public’s blasé attitude toward non-American
casualties”.).
155 See, among others, Tirman (2011, 323) (observing that “during the 1990s a sizable philosophical and
activist complex had grown that specifically sought to report civilian tolls and assess culpability. . . .
Global civil society was taking up this challenge”.); Tapp et al. (2008).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 189
wide international uproar,156 especially when caused by modern militaries
considered capable of greater restraint.157 States are now widely expected to
formally apologize for military errors that cause significant unintended casualties.158 Critics of today’s military practices concerning collateral damage are not
deterred by the leniency of long-standing legal “technicalities”. They are demanding greater moral accountability, pure, and simple.
As Waldron writes, “People should not be allowed to think that they are
insulated from moral criticism of their irresponsibility simply because they are
exercising a legal right which is not subject to any legal limitation” (Waldron
2010, 6). A distinguished Israeli expert in humanitarian law can still affirm that
collateral damage often “emanates from human error or mechanical malfunction, and when that occurs there is no stigma” (Dinstein 2010, 125). Yet
younger scholars now respond that “human error is sometimes (although
not always) caused by putting people in situations where such errors are
more likely” (Crawford 2012, 213), suggesting that stigma would then be entirely appropriate. In fact, the view is now widespread that the law of distinction
and proportionality—designed to accommodate, even facilitate, the lawful progress of war-making—accords insufficient weight to the lives of innocent civilians likely to be caught in harm’s way. Many today believe, in other words, that
such law creates a right to do grievous wrong. This remains true even if we
acknowledge that, due to the intractable impediments just described, there can
be little realistic expectation that international law will, in these matters,
become significantly more stringent. Such concerns do not concentrate
simply on the inadequate state of legal doctrine, in the abstract; there is also
a broadly shared perception that these legal limitations are being frequently
exploited in practice on the battlefield.159
156 See, e.g., Kull (2007).
157 This has been notably true of casualties resulting from U.S. drone attacks on terrorist leaders in
Pakistan and Afghanistan, and of Israel’s 2009 Operation Cast Lead in Gaza. For the current war in
Iraq, civilian deaths—as a proportion of all war-related deaths—have been reliably estimated at
between 75 and 90 percent (O’Hanlon & Campbell 2007, 8, 13–14).
158 Walsh, Schmitt, & Myers (2012) (describing the “diplomatic deadlock . . . over Pakistani demands
for an unconditional apology from the Obama administration for an airstrike” that killed 24 Afghan
troops).
159 Tirman (2011, 310, 314–315) (quoting several U.S. soldiers, some in testimony before Congress,
asserting that their superiors authorized lethal force quite promiscuously, e.g., whenever soldiers
believed themselves to face any nontrivial measure of danger); Glantz & Swofford (2008, 17–19)
(quoting testimony of sergeant Jason Lemieux); McNeal (2011, 7). McNeal emphasizes that in
conducting proportionality analysis the U.S. military regularly employs software designed to estimate likely civilian loss, on the basis of the blast radius from alternative weapons systems, combined
with available data on population density in the targeted area. Though he characterizes these
methods as “rigorous” and “scientifically grounded”, McNeal acknowledges without elaboration
190 ~ Osiel: Rights to do Grave Wrong
Despite the wide berth international law allows them, U.S. leaders have apparently come to believe that they cannot afford to remain indifferent to international criticism if the country is to have any hope of maintaining its desired
stature as benign world leader. Almost every reported incident in which civilians are killed in a drone strike on terrorist leaders is therefore publicly defended with explanation of the strategic importance of the intended targets
(Tirman 2011, 8). Official government studies express concern that public
anger over civilian casualties appears to have contributed to growth of the
insurgency that opposed American military presence in Iraq (Office of the
Director of National Intelligence April 2006). The considerable resources thereafter devoted to refining counterinsurgency doctrine,160 with its emphasis on
“winning hearts and minds” through more discerning use of force, offers further evidence of such concern over moral assessments by ordinary Iraqis and
Afghans.161
As all this suggests, concerns over reputation for ethical attentiveness now
exert a nontrivial influence on American commanders, inducing them to display greater attention to saving innocent civilians from war’s horrors than
international law requires of them. Military deference to such “ideal” considerations arrives quite circuitously, and by a decidedly “material” route. The
moral sentiments are first manifested in world opinion, which is then registered
in the geostrategic calculations of a superpower that cannot afford to ignore
others’ views on matters of such acute global concern.162 By this route, a tough,
“realist” concern with preserving power results in increased sensitivity to the
more idealistic considerations of conventional morality, reflected in the regulatory restraints the superpower at war chooses to impose upon itself.
International law—given its doctrinal laxity (and underenforcement)—will
long remain less significant a protection against needless civilian harm than
the curious workings of something so seemingly ethereal as humanitarian
sensibility.
that “most collateral damage in U.S. operations occurs when the [methods so described] are not
followed” (McNeal 2011, 7).
160 U.S. Army & Marines (2007, xxv) (“An operation that kills five insurgents is counterproductive if
collateral damage leads to the recruitment of fifty more insurgents”.); see, generally, Ricks (2009,
24–31).
161 Cf. Rubin (2012) (describing an “agreement . . . on night military raids that would hand responsibility for carrying out the operations to Afghan forces but allow continued American
involvement”.).
162 Tirman (2011, 8) (noting that “U.S. policy makers and other elites have often demonstrated sensitivity to the potential for a negative public reaction if the U.S. appears to be too unsympathetic to
civilian suffering”.).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 191
Officers themselves, at all levels, regularly report serious concern that their
career prospects will be compromised—destroyed in a heartbeat, even—if they
so much as first seem to cause unnecessary loss of civilian life.163 To speak of
career incentives is not to minimize the abiding influence of nonmaterialistic
motivations, based in martial honor,164 as a further restraint on unnecessary
force. Martial virtue is a species of what philosophers call “role morality”,
however, hence quite distinct from the truly lay morality stressed thus far in
our effort to identify welcome social encumbrances on rights-exercise. The
global movement to limit acceptable levels of civilian harm asserts a moral
cosmopolitanism strongly distrustful of any such military “virtue ethics”,
even professedly modernized. We doubt the capacity of this long-standing soldierly self-understanding to satisfactorily address the crisis of collateral damage,
even to conceptually register its moral magnitude. Conventional morality, one
could therefore credibly say, today insists upon a more stringent standard than
does either international law or military ethics. We strongly suspect, for that
matter, that the traditional preoccupation of the professional soldier with upholding honor—that of his country no less than his own—has throughout history encouraged too ready a recourse to force, one form of militarism.
Still, anyone who listens regularly to Western officers discussing their recent
battlefield experiences in Iraq and Afghanistan will attest to the obvious sincerity of their belief that this “internal morality” of professional soldiering
constrains their use of force in ways far more demanding than international
law.165 Many officers accept, often even embrace, current public demands for
greater moral scrupulousness,166 but view these as inalterably “beyond the call”
of legal duty. One almost suspects here that they are insisting on a right to do
great wrong precisely in order to get extra credit for graciously declining to
exercise it. There could be some truth to that, as a matter of real-world psychology. It would have to count as a corruption of martial virtue, to be sure, not a
genuine expression of it. For according to much moral theory, it is in the nature
163 This is a recurrent theme throughout Sassaman (2008, 9). Col. Sassaman received official reprimand
for failing to report abusive conduct by his troops; he then chose to accept early retirement.
164 On the history of this notion within military self-understanding and its role in limiting unethical
conduct, see Osiel (1999, 14–41).
165 Author’s interviews, Maxwell Airforce Base, Montgomery, Alabama (2002).
166 Chivers (2012) (quoting Navy F/A-18 pilot Layne McDowell, comparing current to earlier, more
“robust” rules of engagement: “It’s a different mission. It calls for a different mentality”.). But see
Sassaman (2008, 79, 89) (“My philosophy – and I think it’s still sound – was to crush the ant with a
sledgehammer. . . Our primary purpose is to destroy the enemy with overwhelming force at every
opportunity”.). This self-understanding, however, is no longer well-regarded, or at least publicly
acknowledged as such, within upper reaches of the U.S. officer corps.
192 ~ Osiel: Rights to do Grave Wrong
of a virtue to desire nothing from its beneficiaries in return—not even grateful
recognition of the fact that is has been on display.
Yet so pristinely theoretical an account of virtue, as unsullied by selfaggrandizement, obviously cannot much help us determine how far international law should trust to norms of martial honor as a restraint on civilian
carnage. More compelling would be some evidence that the aspiration for moral
recognition of this sort had actually restrained anyone from inflicting excessive
harm. As one might expect, such evidence is sparse and anecdotal, at best, even
in the more insightful meditations on the military calling by its most distinguished practitioners.167 Admittedly, such legally supererogatory restraint in
preventing incidental civilian losses is precisely the avowed aim of certain novel
forms of professional recognition. In the U.S. Air Force, for instance, awards
once given only for lethal bravery in battle are today sometimes granted to
pilots who declined to use lethal force in situations where it would have been
lawful, but their decision to wait and exercise extraordinary caution allowed the
safeguarding of civilian lives.
We might characterize the self-understanding that Western officers today
evince, as conscientious bearers of martial virtue, in terms of Waldron’s analysis:
as conjoining rights and responsibilities in ways that lend a distinctive dignity to
their calling and social role—distinguishing it, at least, from murder, in this case.
Here, unlike in our other illustrations, there exists a long-standing vocabulary for
formulating and expressing such deep intimations of duty. It is a vocabulary of
“my station and its duties”, however, striking most outsiders as faintly Victorian,
anachronistic, and intolerably elitist. In fact, it almost seems as if the special
dignity (such as it is) of the officer’s social role (i.e., beyond today’s Western
Europe, where it has little) derives less from its core activities—terribly violent,
after all—than from the fact that the weighty responsibilities demanded of him
do not and cannot find full reflection within the law governing him.
It is this very disparity between legal and moral obligation, this failure on law’s
part to adequately capture and cognize our moral expectations of someone, that
grants him the broad discretion over grave matters with which we endow positions of special social dignity. The esteem accorded the military officer therefore
not only merely arises from the intrinsic importance of his chief societal function—national self-defense—but also from our reluctant acknowledgement that
we simply cannot entirely subject him, as thoroughly as we do others, to the rule
of law. We are obliged, willy–nilly, to place enormous trust in someone who, we
concede, must operate to great extent in a domain of lawlessness. This is true not
only of war, though it is most conspicuous there, but also wherever we expect
167 See, e.g., Fisher (2012, 108–133) and Stockdale (1995).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 193
people—as professionals, parents, or medical patients—to behave in morally
exigent ways that we cannot quite bring the law to require of them.
It would be too much to say that, in the absence of clear law on the meaning
of proportionality in war, there exists an internationally accepted social norm
filling the regulatory shortfall. For there is no more agreement in the wider
moral and political discourse on the term’s meaning than in the juridical. To
the extent the first glimmerings of any such global norm may be emerging, it is
simplistic and ill-considered. To judge from op-eds in leading world newspapers, especially in response to Israel’s 2009 Operation Cast Lead, many
nonlawyers appear to understand proportionality (both ad bellum and in
bello) as requiring that belligerent A cause no more civilian losses to belligerent
B than A has previously endured.
This interpretation appeals to many, as the author can attest from audience
reactions to several presentations (and many law school student seminars)
about the law of proportionality. Yet if proportionality were so understood,
it would be impossible “to explain most accepted exercises of self-defense,
including Allied conduct in World War II. Most wars lead to more deaths
than their triggering events” (Waters 2012). Those who accuse today the
USA or Israel of disproportionality appear to intend these as claims about
what the law currently requires—once properly interpreted, in light of its
underlying “spirit”—rather than as extra-legal contentions about the requirements of social morality. Such assertions are correctly described as “lawfare”
insofar as they willfully distort existing rules for the purpose of turning public
opinion against practices, currently lawful, by creating the impression that they
are not (Dunlap 2001). Distortions of this sort seek less to persuade courts than
to influence global expectations, tighten prevailing social norms. This would be
a perfectly defensible aspiration—if acknowledged as such—certainly worthy of
our collective consideration.
In the absence of any well-settled global social norm on these matters,
however, what does step into the breach, within certain contemporary armed
forces at least, is not a norm of substance, but of process, as yet grounded
neither in lay morals nor prevailing notions of martial honor. Any officer
contemplating an order to employ lethal force in the vicinity of civilians is
required by national regulation to weigh that decision carefully by assessing a
number of pertinent pre-identified considerations, in light of circumstantial
particulars, acquiring as much advance information about these as reasonably
possible.168 If the end result is highly prejudicial to civilian interests, the officer
168 Author’s interviews with JAG officers in the Israel Defense Forces (November 2010 and December
2011).
194 ~ Osiel: Rights to do Grave Wrong
must be prepared to defend her decision in light of how it was reached, showing
that all realistic alternatives to the measure of force employed were duly considered before being discarded. Cognitive psychology supports such a policy,
concluding that decision-making can be improved ex ante by anticipation of the
demand to provide ex post justification to others (Lerner & Tetlock 1999).
The responsibilities today most vigorously urged upon states and their soldiers remain and must remain extra-juridical. Even so, the armed forces of
certain Western democracies, at least, have clearly incorporated a measure of
legally supererogatory moderation into their formal routines and institutional
structures. Professional soldiers themselves increasingly view such restraint as
within their core vocational function—not an alien, exogenous imposition. For
them, as Winston writes of conscientious professionals generally, “the core of
ethical practice consists not in the application of principles”—much less of legal
rules—“but in the exercise of basic competences. . .encompass[ing] the executive virtues, of which prudence is. . .paramount” (Winston 2008, 49).
To reduce civilian losses, Western armies today also employ “ROE” imposing unprecedented restraint on use of force by both ground and aerial services.
The restrictive ROE imposed by General Stanley McChrystal on U.S. soldiers in
Afghanistan received much attention. The increased risks understandably led
some to chafe at the regulatory inhibitions creating them (Chivers 2010;
Sassaman 2008, 303, 141–143, 146, 259). Some critics even contended that
stringent ROE compromised mission objectives (Bowman & Montagne
2009). In both Afghanistan and Iraq, restrictive ROE were adopted in response
to exhortation from local leaders, reflecting public opinion in these countries.169 Eventually, “close air support”, i.e., air strikes, could be called in
only when Western troops were in serious danger of being overrun
(Dadkhah, 2010). Data suggest that, as ROE in Afghanistan became more restrictive, civilian deaths declined but deaths of U.S. soldiers increased (Herold
2012; Crawford, 2012, 84–88, 110). Civilian victims of such force also regularly
receive compensation from the American military, a practice not required by
international law.170
169 Kahl (2007) (observing that “compliance has improved over time as the military has adjusted its
behavior in response to real and perceived violations of the norm”).
170 If the harm occurs on a battlefield, such victims have no right to recover damages under the Foreign
Claims Act, due to its “combat exception”. 10 U.S.C. § 2736(a)(1) (2006). Further “condolence”
payments (under section 2734) are prompted by the same geostrategic considerations described
above, which attend to public attitudes, hence to indicia of ordinary morality, among citizens of the
foreign country (Witt 2008, 1456) (observing that “American-style damage payments are fast
becoming one of the ways the twentieth-first century U.S. military attempts to win the hearts and
minds of civilians in war zones”).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 195
Significant here as well are the new, nonlethal weapons in advanced stages of
Pentagon research and development.171 These promise to disable enemy fighters without killing them, and to reduce attendant harm to enemy civilians and
their property. To this effect, these technologies are of a piece with a generation
of improvements in precision-guided weapons, employing laser and GPS electronics (Wrage 2003, 85). These are embodied especially within drone technology, which has come to represent the chief tool of U.S. counterterrorism policy
in recent years. International law does not require states to develop and maintain such weapons. No one would contend that it should, insofar as this would
entail increased commitments to weapons acquisition, resources states could
otherwise direct to programs for the general welfare.
The result is that, in authorizing considerable civilian losses, the international
law of proportionality legalizes great wrongdoing, but that world opinion has
nonetheless brought considerable extra-juridical pressure to bear, to some notable effect, in persuading leading military powers to exercise such rights responsibly, by subjecting themselves to greater restrictions on force than the law
itself imposes. As in other examples discussed here, the impossibility of legally
incorporating all pertinent moral considerations leads to the knowing creation
of a right to do severe wrong, the full exercise of which is then impeded by
responsibility-inducing mechanisms operating both external to the law and, at
least procedurally, within it. Anyone seeking to defend the lenity of international law here would be certain to emphasize these environing encumbrances
on modern military organizations as indispensable to such law’s continuing
legitimacy. In that way, these recent forms and sources of inhibition on the
measure of force employed in war have become integral to any acceptance of the
proportionality rule. This is what accounts for the measure of equilibrium that
today exists on these issues between (a lenient) law and (a more exigent) social
morality.
In sum, the right to cause collateral damage in war implicates all three of the
weighty concerns mentioned at the outset. These must give pause over whether
we may reliably trust to extra-juridical practices and pressures to satisfactorily
plug gaps in current law, even as the alternatives remain unclear. For there is
some reason to wonder about the stability of this new norm, how it will fare
over time, whether its efficacy may wax and wane with the measure of a country’s concern about others’ views. It may therefore be premature to suggest that
this emergent norm has attained such genuine equilibrium that it will continue
to exercise such significant influence without greater legal support. The true
challenge to it would arise when a whole people, not merely its armed forces,
171 These include heat rays, sticky foam, laser guns, and slippery gel (Koplow 2010).
196 ~ Osiel: Rights to do Grave Wrong
came to be regarded as “the enemy”. This may be hard to imagine with respect
to public attitudes in developed Western societies these days. But it remains
entirely characteristic of most wars of “ethnic cleansing”, those seeking to
destroy or displace an entire national, racial, religious, or racial group from
territory previously shared with others.
Finally, the notable shift in social norms on the issue of collateral damage in
war, though lacking legal foundations, has surely been influenced by the growth
of international human rights law, even where the latter is not strictly applicable. This body of law, like that on crimes against humanity, prohibits
state-sponsored atrocities during both war and peace. There is no doubt that
the idea of human rights, if not the details of the international law embodying
it, has captured the imagination of conscientious people everywhere, informing
their moral judgment of belligerent behavior in war. In this respect, it would be
wrong to imply that the recent strengthening of extra-juridical norms against
collateral damage is advancing in ways entirely indifferent to legal
developments.
CONCLUSIONS
Our central contention is that rights to do grave wrong exist, arise with some
regularity, and persist for considerable periods, because they are thought to be
constrained in extra-legal ways establishing an acceptable equilibrium between
them and corresponding moral responsibilities of their bearers. Such rights
appear when law takes serious leave of common morality. These situations
elude standard disciplinary cubbyholes and scholarly classifications; we therefore tend to acknowledge them only in passing, as isolated instances, occasional
curiosities. Their larger jurisprudential implications are unduly neglected, for
they can be fruitfully understood as a recurrent phenomenon, constituting a
distinct analytic category of noteworthy normative and social–theoretical
import.
The significant disparity between law’s authorizations and lay morality’s
proscriptions—though initially disquieting, even startling—emerge for reasons
that are often acceptable to anyone prepared to give a close look. Still, where the
disparity yawns wide and the disfavored right enjoys frequent exercise, anguished misgivings emerge, ensuring that rights to do serious wrong are
almost never laid fully to rest, politically speaking; because they experience
continuous critique and periodic legislative reassessment, the equilibria they
may enjoy for considerable periods can prove fragile. This is especially so when
a particular right, such as to employ abortion in lieu of contraception for birth
control, is not strongly mitigated in its exercise by countervailing social
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 197
promptings, the sort more evident in our other illustrations. Most major discrepancies between law and lay morals lie far from the battlefront of any culture
war, however. They become controversial nonetheless when the law excludes
from its ambit moral responsibilities widely considered intrinsic to rights the
law has enshrined, rights that pose risks of grave wrongdoing if not constrained
in some other fashion.
Helpful in this connection is Waldron’s concept of a “responsibility–right”,
which several of the entitlements here examined approximate. These are rights
associated with performance of a particular role, or with occupying an essential
status, from which attendant duties emerge organically, though sometimes in
ways uncongenial to codification. By its nature, a given social role (such as that
of military officer) may so tightly conjoin these rights to certain responsibilities
(to minimize civilian harm) that failure to enshrine the responsibilities fully
into law inevitably calls the defensibility of the rights themselves (to kill people,
even in war) into question. As long as we cannot dispense altogether with those
who perform the valued task, provision must be made—extra-juridically, if
necessary—for satisfaction of its attendant duties.
This challenge lends a special poignancy to cases such as ours, in a way that
differentiates them from garden-variety rights to do wrongful things, as where a
legal right may simply be linguistically overbroad in relation to the narrower
purposes prompting its creation. To summarize, failure to juridify responsibilities is especially questionable where: (i) the right to which the responsibilities
are attached stems from an essential task or position (often affording particular
dignity) entitling one to cause grave injury; (ii) the scope of the right would
therefore be highly restricted but for vigorous assurances that concomitant
moral obligations will be respected; and (iii) the extra-juridical underpinnings
of their fulfillment are uncertain, resist acceptable verbal characterization, or are
apparent only through painstaking factual investigation (of the sort here ventured, in our medical and military case studies). The last of these three enumerated concerns has been our present focus. But the case of incidental civilian
damage in war powerfully implicates them all.
The failure to enshrine a “golden rule” or Kantian ethics more fully into law
sometimes stems from perennial problems of perverse incentives, adverse selection, moral hazard, and information asymmetries. The asymmetries are between principals and agents or between bearers of a right and those critical of
(what they consider) its irresponsible exercise. These wide-ranging considerations generate many of the more specific, law/morality discrepancies, because
they ensure that to codify deonotological principle would often produce unintended consequences inefficient in the extreme. The law here simply overrides a
common morality that may be less thoroughly consequentialist or simply uninformed about the true range of relevant consequences.
198 ~ Osiel: Rights to do Grave Wrong
Yet it is impossible to say that the law is consistently more consequentialist
than common morality, across the board.172 There may be points at which our
law tracks a widely endorsed deontological norm quite closely despite, thereby
causing much harm.173 We have seen that, with the withdrawal of life support
in particular, our law prizes personal autonomy and is resolutely deontological,
whereas lay morality—which physicians and family members surreptitiously
enforce—can often be decidedly more welfare-consequentialist. In fact, liberal
law regularly commits itself to respecting personal autonomy to act upon our
individual conception of the good, no matter how harmfully we may thereby
treat ourselves, flouting community mores in the bargain. At such times, the
refusal to legally enforce prevailing mores has little to do with advancing the
general welfare.
The legal system and lay morality also go separate ways, we have seen, where
our lurking distrust of government makes us reluctant to let public officials
enforce what morality may, we admit, clearly require. One could try to shoehorn our concerns here into the language of principals and agents. Yet the
deeper source of our apprehension—fear of oppression—is not fully, perspicaciously captured through a discourse of rational choice or efficiency maximization, with their express disavowal of normative concerns. In short, law’s
commitment to efficiency (and attentiveness to the microeconomic mechanisms effecting it) explains only some of the empirical variance, and play little
part in generating other salient rights to do grave wrong. The dreary litany of
familiar “economic” concepts (adverse selection, perverse incentives, etc. . .)
falls well short at key points as both explanation and policy counsel.174 Once
immersed at the necessary level of detail, the abstract admonition to “beware of
unintended consequences” from opportunistic behavior offers no more satisfactory guidance in devising law’s response to grave wrong than do more
exalted principles of Kantian ethical theory. In seeking to explain the empirical
lay of the land, then, we instead find that law/morals discrepancies emerge from
172 Neither is it possible to say that either law or mores is consistently more forgiving. Opinion surveys
reveal that while common morality is more punitive than criminal law for certain offenses, it is less
so for others, notably for drug possession, felony murder, and unconsummated attempts. Roberts et
al. (2002, 34, 106, 128, 158) (identifying certain issue areas where public opinion is more lenient
than criminal sentencing decisions); Robinson & Darley (2010, 1971–1975).
173 This is apparently the case, for instance, in the “retributive populism” today associated with onerous
postincarceration sanctions for sexual predation by strangers, compared to sanctions against sexual
abuse within families, which is far more common but the subject of less media or legislative attention
(Roberts et al. 2002, 142) (describing this phenomenon in five large common law countries).
174 Moreover, none of the intractable difficulties so itemized involve constraints of constitutional law on
the ability to burden others’ fundamental rights, the near-exclusive preoccupation of legal scholars
intrigued by the puzzle of rights to do wrong.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 199
particular features of a disfavored activity, the special normative considerations
to which these give rise, and the sometimes insurmountable challenge thereby
posed to legislative drafting.
This sort of fine-grained analysis, though essential, admittedly does not
greatly advance our social–theoretical understanding, move us toward middle
range generalization, the sort that would let us typologize an otherwise oceanic
variety of experience into a small set of manageable categories, each with conceptual features and explanatory preconditions of its own. That next step would
seek greater accumulation of insight, from one right to the next, in accounting
for the elusiveness to codification of concomitant responsibilities and the
strength of countervailing social conventions. Otherwise, we risk descent into
an unsatisfying tacking back and forth between discrete, “thick descriptive”
accounts of the ground-level workings of particular rights to do wrong, on
one hand, and a handful of glittering generalities, on the other, all deduced
by simple logic from an abstract model of the “rational actor”, scarcely seeming
to invite or require in-depth empirical inquiry at all. This, in essence, is the
theoretical challenge the present article identifies, the core of the research
agenda it aims to initiate, as reflected in the inductive method it generally
employs. The ideal-type delineated and employed throughout the present analysis offers a first step down that road.
Their particularities notwithstanding, our empirical illustrations of rights to
do serious wrong share one striking feature, largely irreducible to ubiquitous
economistic mechanisms. The continuing social stigma associated with the
unreserved exercise of these legal rights induces some self-restraint, variable
from one legal context to another. Stigma attaches to and partly deters these
forms of conduct only by way of the right-holder’s anticipation of such reproach.175 Social scientists initially employed the concept of stigma to describe
derisive attitudes and behavior toward devalued groups, such as the mentally ill,
physically disabled, and racial minorities, whose members seemed branded by
“society” at large as “not quite human” (Goffman 1963, 2, 5). Stigma of this
sort entails stereotyping, violates the essential human dignity of its victimtargets, is therefore an unalloyed evil, and today is generally recognized as
175 In delineating the social mechanisms for hampering conduct that is lawful but morally objectionable, we have focused entirely on those that operate through discouragement. These can be described
as “negative” in nature. This is not to deny that, to the same end, positive or affirmative mechanisms
for inducing rights-restraint are sometimes important as well. In such terms, we may fairly classify,
for instance, the novel grounds (discussed supra) adopted by the U.S. Air Force in recent years for
awarding combat medals, i.e., where pilots exercise restraint “beyond the call of duty” in order to
minimize civilian casualties. On some of the mechanisms at work in both positive and negative
inducements to restraint in the exercise of legal rights, see generally Brennan & Pettit (2004) (suggesting how such inducements are grounded in our desire for others’ esteem).
200 ~ Osiel: Rights to do Grave Wrong
such. Reflecting this current conventional wisdom, Martha Nussbaum writes,
for instance: “Central to the operation of stigma is a dehumanization of the
victim”.176 The inclination to stigmatize springs from infantile narcissistic impulses in certain individuals, she even insists, who find expression through
aggressive forms of group formation and collective defense against wildly exaggerated threat (Nussbaum 2004, 209–221).177
In our cases, however, stigma attaches to activities about which a decided
ambivalence prevails within lay morality, because the law apparently fails to
distinguish satisfactorily between acceptable and unacceptable exercises of the
right to engage in them. The prospect of causing right-bearers to feel stigmatized—and the social practices through which we seek to evoke such feelings of
disesteem—therefore do not by any means elicit in us the same unequivocal or
universal condemnation. In these circumstances, stigma does much of the work
of moral chastening that a “better-drafted” body of legal doctrine, effectively
enforced, would ideally perform. Here, stigma compensates for legality’s
underinclusiveness, recaptures some of morality’s further claims upon us,
those otherwise lost to the law’s inherent frailties or indifference.
Stigma at first seems a repressive, anachronistic relic of darker days. There is
admittedly a musty, antiquarian air to any contemporary effort at its active
encouragement and theoretical rehabilitation, much as with our invocations of
martial honor and duties to self. As with these other two embarrassing ghosts
from the past, a more contemporary idiom is desirable, if only to help us
conceptually register and appreciate the actual extent of informal push-back
against lawful wrongdoing. It is admittedly tempting to dismiss these terminological concerns as decidedly secondary to how we address the substantive
questions, which are normative and empirical, not linguistic. But that would
be to underestimate the import of these symbolic considerations in addressing
such pragmatic issues themselves. As we have shown, there is often a difficulty
not merely in incorporating our acknowledged moral duties (associated with
this category of rights) into legal terms; there is also a difficulty in formulating
such duties convincingly even in nonlegal terms. These are the terms from
which such translation into law would presumably begin, on which it would
therefore depend. The deficiencies of moral discourse at these key points therefore threaten to debilitate our legal discourse as well.178 It is disconcerting that
176 Nussbaum (2004, 220).
177 Nussbaum defends these seemingly extravagant contentions with careful discussion of leading psychoanalytic thinking, precluding their casual dismissal, at least, as mere amateur shrink-speak.
178 This invites the inevitable questions: what is it, exactly, that renders traditional formulations, those
most readily at hand to any literate observer, so embarrassingly superannuated, even as we quietly
acknowledge the normative force underlying them? And what makes it apparently so difficult,
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 201
our rhetorical repertoire for describing both major moral responsibilities and
the principal means for their enforcement strike such an antediluvian tone.
There can be little doubt that the underlying impulse to elicit shame and to
stigmatize, as we may continue to describe it, clearly endures within the modern
world, toward forms of behavior that modernity itself reproaches. In fact, it may
now come into its own as a supple means of reforming behavior that, though
necessarily lawful, has become incompatible with contemporary morality.179
It elides philosophical niceties in aiming at once for retribution and deterrence, without demarcating their distinctive, respective demands. Since it
does not entail expulsion from society or thorough marginalization within it,
the effort to elicit compliance through a stigmatizing shame is sometimes directed (with varying success) even at the powerful, as in the global response to
museum practice and the collateral civilian deaths wrought by America’s recent
wars.180
As such, then, stigma has been unfairly stigmatized. “In a harsher age, there
would be little or no guilt on the observer’s part for the emotions the stigmatized elicit in us”,181 writes William Ian Miller. That is no longer true. In fact, he
adds, today “one of the surer markers of our recognition of stigma is our guilt
for having recognized it”. Then as now, stigma chiefly originates in social
practices, conventions, or norms—all largely forms of private ordering—
though if these sometimes then prompt the creation of quasi-legal arrangements, such as military ROE or informal memoranda of understanding (as
between museums in wealthy and source countries).182 Even when articulate,
despite their continuing relevance to our lives, to substitute more satisfactory terms, ones with which
we could comfortably articulate these enduring concerns? To such vexing questions, many would
surely welcome any well-considered response.
179 One recent study observes, for instance, “stigma may be a useful and underrecognized tool for
reducing the prevalence of smoking” (Stuber et al. 2011, 351) (finding from survey data that
smokers are increasingly stigmatized). Though the industry’s continued economic importance
and consequent political influence make it impossible to ban tobacco consumption outright,
policy efforts to stigmatize the practice, and so in this way attack it more circuitously, are becoming
a focus of regulatory attention.
180 In this respect, it differs from “outcasting”, a more extreme sanction deployed by international legal
institutions (Hathaway & Shapiro 2011) (defined as “denying the disobedient the benefits of cooperation and membership”). On the efforts of recent years to enforce human rights treaties
through stigmatizing of states’ leaders who violate them, see Hafner-Burton (2008) (concluding
that such efforts have not generally been successful in altering state conduct).
181 Miller (1997, 199–200).
182 Such arrangements do not provide the sufficient basis for liability and, like mechanisms of “new
governance”, are more readily revisable in light of shifting circumstances than legally binding
instruments.
202 ~ Osiel: Rights to do Grave Wrong
it often speaks softly, reticently, though at times—as with critiques of civilian
war casualties—in thunderous, garrulous jeremiads. It is often semi-conscious,
unreflective, visceral, yet sometimes articulate, well-reasoned, highly organized,
even meticulously orchestrated by energetic moral entrepreneurs.183
The social mechanisms for stigmatizing others inevitably differ somewhat in
international relations than interpersonal. Yet our illustrations of more global
rights to do wrong—to inflict collateral damage, to refuse apology for mass
atrocity, to keep stolen art—are not altogether unlike the more local exemplars.
In both contexts, stigmatization does not pull its tools from thin air but relies
heavily upon social practices, both well-settled and emergent. Thus, when states
apologize for gross human rights abuses or decide to reduce the civilian casualties they cause in war, no less than when Western museums repatriate purloined
artwork, these steps result from age-old techniques of official diplomatic intercession, behind the scenes, combined with highly public appeals to relevant
audiences, through innovative but now predictable forms of social media.
Neither these public nor private means of policy influence are unique to restraining rights to do wrong, of course. Both methods suggest, moreover, that
such rights-restraint often involves something other than a purely spontaneous,
intrinsically heartfelt inclination to ensure that the right-bearer “does the right
thing”, honors his acknowledged moral duties.
Throughout this work, our conclusions disclose no ideological valence,
harbor no partisan agenda. As should be clear, sometimes the legal right at
issue is recent and aims to “liberalize” preexisting practices, as with reforms in
the law of abortion and divorce, whereas the informal constraints upon its
effective exercise spring from enduring attitudes and attendant importuning
fairly characterized as “conservative”. Yet at other times, as with the right of
armies to kill civilians or that of museums to retain heisted loot, the legal
entitlement—newly disfavored on moral grounds—is ancient. And the
people most reluctant to see it doctrinally delimited are confessed conservatives
in these respects. The exercise of their rights is then nonetheless informally
hampered by a developing social norm endorsed primarily by self-described
“progressives”. Thus, whatever political orientation inspires the right itself or
resistance to its exercise, the essential process of interest here—its sociolegal
dynamic—is the same.184
183 On the emergence and standardization of social practices, now well-established, for influencing
global norms, rendering them more constraining while generally leaving applicable law more lenient, see Keck & Sikkink (1998) and Finnemore & Sikkink (1998).
184 This is why we would be incorrect to say, as an ungenerous critic might insist, that the thinly veiled
subtext of this article is that we should stop worrying so much about the massive, violent “incidental” deaths we inflict upon the wretched of the earth and start worrying more, closer to home,
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 203
Closely related, the phenomenon of rights-cum-restraints finds expression in
both “traditional” and “modern” societies, a fact itself reflecting why that very
binary opposition, this false dichotomy, became such an embarrassment, largely
abandoned by social theory. We have seen the moral reproach of rights arise
from the early retreat of sacred law, which begins to liberalize in reliance on
enduring mores still based in religious ethics. And we have seen that stigma also
attaches to the “abuse of rights” when novel norms discourage broad exercise of
age-old authorizations. Stigma thus appears perennially, while eluding precise
prediction of when it may become an effective social force (and be recognizable
as such by some defensible scholarly method). In varying measure and form, it
is nearly ubiquitous in our behavioral reaction against rights to do serious
wrong.
Social norms concerning the moral acceptability of particular conduct come
and go, in ways generally impossible to foresee. So too the vagaries of organized
reaction against immemorial forms of conduct, now suddenly judged rebarbative. To prophesy that we can rely on normative evolution to follow an inexorable “arc of justice”185—as some might claim to find in enhanced global
concern with collateral damage—is not merely naı̈ve. It is also dangerous, considering the several major ethical “retrogressions” of the last century and the
democratic world’s consistent failure to anticipate and prepare itself, with the
law’s assistance, for resisting their horrors.186 It scarcely requires saying that law
remains essential at such times, even as we become more sensitive to and
sophisticated about its relation to moral convention, a relation at once complex, curious, and often unstable. Ours is not an argument that law may not
encroach upon social norms without causing indefensible inefficiencies or violating inherent individual rights—the two conventional critiques of legal expansion into the domain of private ordering. The present analysis does
nonetheless suggest a third reason, at times a good one, why we sometimes
refrain from extending law’s reach into that realm.
Law’s calculated retraction in the face of salubrious norms and social practices for their realization should thus be seen simply for what it is: a particular
about the sins of Western women who may sometimes choose—in a moment of unregimented
Dionysian passion—to forgo the contraceptive methods (regularly unreliable, unsafe, or simply
unavailable) that neo-paternalists would demand of them, as if contraception were not equally a
male responsibility.
185 For one such Panglossian overview, see Pinker (2011).
186 Some might add that even such progress as may have occurred toward greater humanitarian concern, reflected perhaps in recent calls for redistribution of global wealth, remains subject to
Nietzschean suspicions about its genealogy in the resentiment—that combustible conjunction of
envy, anger, and pride—of the less productive toward those more so.
204 ~ Osiel: Rights to do Grave Wrong
strategy (among others) of institutional design, occasionally fruitful, one on
which we considerably rely, notwithstanding our frequent absence of much
deliberation in arriving at it.187 Most of the time, this pervasive but diffuse
trust in social convention remains implicit. It tends to be rendered explicit only
when opponents of a legal right challenge it as unduly sweeping, posing dangers
of serious wrongdoing. Such challenge and response are most conspicuous and
energetic, among our chief cases, in connection with incidental civilian harm
from war. Explicit challenge to (and defense of) our informal practice is nearly
absent, in contrast, concerning the right to decline life-saving medical care, for
there the restraints we stealthily impose are not merely extra-juridical, but
sometimes simply unlawful.
One may quibble with whether it is accurate to describe the law’s reliance on
a social practice as a “strategy” when, however apparent our deep dependence
on it, there may never have been any explicit, self-conscious, fully articulated
rationale, or observable collective decision to this effect by legislators and
judges. This raises a perennial methodological question, the possible answers
to which we may here merely allude in passing.188 Our normative point is much
187 Calabresi & Bobbitt (1978, 44–50) (observing how law’s reliance on social custom as a regulatory
approach is often implicit, involving no conscious choice by legislators).
188 The answer most readily at hand within social science would be that the intentions of human actors
may be inferred from observable behavior that is logically consistent with having such intentions.
This is unsatisfactory, however, where—as in our cases—the behavior at issue is compatible with
alternative intentions or none at all.
A second possible response would appeal to an antihumanist structuralism or “holism” regarding
human intentions as largely irrelevant to a deeper logic of “social fact”, in Durkheim’s sense,
intelligible only at the macro-level, working “behind the backs” of human actors, who remain
clueless about the broader social significance of their conduct. This may be the case, we have
acknowledged, with the way employment rights could conceivably be constrained by unconscious
gender and racial discrimination in the workplace, reinforced by “organizational culture”. All that
would have to be demonstrated through aggregate data on hiring and promotion over a considerable
period, data analyzed with methods controlling for all other relevant variables. Yet even if that were
methodologically possible, this general tack, too, would be problematic in our chief cases. For most
lawmakers are surely aware that legal rules often depend upon (and their drafters therefore implicitly
assume) a general conformity by most people, most of the time, to basic social norms, whether from
individual conscience or communal pressure, norms with which the law hence need not seek to
interfere.
Still, we should not adopt a methodological individualism so extreme as to confine all acceptable
explanation of social and legal life to what can be empirically confirmed about the conscious beliefs
and intentions of particular natural persons. For many of the rights-restraints explored here, and
certainly the social mechanisms underlying them, frequently escape lawmakers’ conscious consideration.
These enduring debates within the philosophy of social science cannot here receive the sustained
attention appropriate to a longer work. It is enough to say, for present purposes, that law’s reliance
on social practices of restraint vis-à-vis overbroad rights, where not explicit, can often fairly be
described as part of what Searle calls “the background”, defined at text accompanying supra note 54,
which routinely operates in a twilight semi-consciousness.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 205
simpler: that as both lawmakers and their scholarly kibitzers, we ourselves
should think of law’s deference to social norms as if it was a strategy, i.e., that
it is fruitful to conceive such reliance in this way, not only in making sense of
others’ behavior but also in guiding it. By rendering the behavior more aware of
itself, cognizant of its far-reaching implications, we will discover the conditions
in which this regulatory approach is optimal—or at least defensible, and when
not.
There is nothing inherently pathological in law’s periodic willingness to fall
back upon nonlaw in bridling wrongful conduct. The “failures” of lawmaking
here witnessed are untroubling where there is good reason for trust in such
nonjuridical goading to dissuade right-bearers from invoking their entitlements
in morally unacceptable ways. A certain legislative confidence in informal
rights-restraint arises from this largely unspoken trust in practices of professional ethics and broader moral conventions assumed to be operative in the
particular contexts of anticipated rights-exercise.
A “positivist” legal centralism would nonetheless be correct to remind that
these myriad implicit encumbrances upon rights exercise may, at various times,
restrain either too little and too much. This inconstancy and imprecision is
especially disconcerting when human life is at stake (sometimes in large numbers),189 even if we are prepared to indulge such uncertainties in matters of
lesser magnitude. It is this difference that makes the efficacy of extra-juridical
counterpoise so important—and at times so plangently affecting—in our chief
cases, setting them apart from the broader legal environment where, in less
anguished circumstances, similar counterweights may often operate unobtrusively against less severe wrong. In such grave matters as ours, it could be
disastrous assume that the level of push-back against the rights in question
will prove just right. Even when it is, that could be mere happenstance. And
the informal equilibrium between right and responsibilities that we do frequently encounter in our cases may prove less stable over time than what
positive law—properly drafted and competently enforced—could secure. One
might therefore plausibly insist that, in seeking to ensure respect for the moral
responsibilities accompanying certain legal rights, we are generally better
advised to place our trust in the rule of law than in something so seemingly
nebulous, gauzy, and fickle as social convention, much less “society” at large.190
189 Or, with respect to abortion, potential human life at least, if one prefers.
190 It remains possible to speak coherently about “the social”—the interpersonal and intersubjective—dimension of human experience without reference to any broader notion of “society” as
such, i.e., at the scope of an entire nation or territorial state. The distinction is significant at a
time when the very notion of a “society”—as a fruitful, even intelligible concept—is rejected by
prevailing theories of the contemporary world (Outhwaite 2006, 17–56) (describing several such
206 ~ Osiel: Rights to do Grave Wrong
The legislative and judicial trust in extra-legal practices is unwarranted where
the countervailing pressures they exert against irresponsible exercise of rights to
do wrong prove inadequate to the task, sometimes glaringly so. Such counterpoise may weaken over time, for instance, with social and economic change, as
suggested in the history of American legal ethics. It may remain undiminished,
yet fall behind heightened public expectations of the right-bearer, as with inhibitions on civilian harm in war and attitudes toward museums acquiring and
retaining pilfered artwork. The countervalence may simply prove weaker than
initially anticipated, as with the risks of financial innovation, with the large
percentage of abortions now apparently prompted by reckless failure to employ
contraception, and perhaps also with the hesitation to exploit moral hazard in
insurance schemes. As with whistleblower statutes (and maybe personal bankruptcy), the corrective pressures against abuse and overuse of certain rights,
while salutary and welcome up to a point, may prove too strong and so overdeter conduct that the law seeks more generously to encourage.
Our method, such as it is, has involved nothing more than sniffing about and
sussing out these alternative scenarios—their empirical variations and conceptual contours—to identify and better understand their conditions of possibility
and emergence. This patient probing allows us to anatomize the sociolegal
dynamics of rights to do grave wrong with a view to identifying when it is
fitting for law to employ this perplexing, disconcerting, yet inescapable category
of rights.
REFERENCES
Abdalla, Raqiya Haji Dualeh. 1982. Sisters in Affliction: Circumcision and
Infibulation of Women in Africa. London: Zed Press.
Abraham, Kenneth. 1986. Distributing Risk: Insurance, Legal Theory, and Public
Policy. New Haven, CT: Yale University Press.
Alborn, Timothy. 2009. Regulated Lives: Life Insurance and British Society,
1800-1914. Toronto: University of Toronto Press.
Alford, Fred C. 2001. Whistleblowers: Broken Lives and Organizational Power.
Ithaca, NY: Cornell University Press.
Anspach, Renee. 1993. Deciding Who Lives: Fateful Choices in the Intensive-Care
Nursery. Berkeley, CA: University of California Press.
trenchant, influential critiques of the concept, from Foucaultian and postmodern to the economic
and neoliberal, across a wide intellectual and ideological spectrum). But see, for an older view,
Winch (1958) (defending a notion of “society” as consisting of the “joint possession” of concepts
establishing tacit rules of conduct, a formulation akin to our usage here of “practices”, “norms”, and
“conventions”).
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 207
Aquinas, Thomas. 2006 [1274]. Summa Theologiae (Brian Leftow ed. & trans.).
Cambridge: Cambridge University Press.
Austin, John L. 1975. How to Do Things with Words. Cambridge, MA: Harvard
University Press.
Austin, John. 1885. Lectures on Jurisprudence. London: John Murray.
Baker, Tom. 2008. Liability Insurance at the Tort-Crime Boundary. http://
papers.ssrn.com/sol3/papers.cfm?abstract_id¼1314309.
Baker, Tom, & Simon, Jonathan (eds.) 2002. Embracing Risk: The Changing
Culture of Insurance and Responsibility. Chicago: University of Chicago Press.
Baker, Tom, & Sean J. Griffith. 2010. Ensuring Corporate Misconduct: How
Liability Insurance Undermines Shareholder Litigation. Chicago: University
of Chicago Press.
Baker, Tom, & Thomas O. Farrish. 2005. Liability Insurance and the Regulation
of Firearms. In Timothy D. Lytton (ed.), Suing the Gun Industry. Ann Arbor,
MI: University of Michigan Press, pp. 292–314.
Bakhatin, Mikhail. 1968. Rabelais and His World. (Helene Iswolsky, trans.).
Bloomington: Indiana University Press.
Baltzell, Digby. 1989. Philadelphia Gentlemen: The Making of a National Upper
Class. Glencoe, IL: Free Press.
Basu, Kaushik. 1999. International Labor Standards and Child Labor. Challenge
42, 80–93.
Beck, Ulrich, Anthony Giddens, & Scott Lash. 1994. Reflexive Modernization.
Cambridge, MA: Polity Press.
Bellah, Robert, et al. 1985. Habits of the Heart. Berkeley, CA: University of
California Press.
Black, Donald. 1976. The Behavior of Law. Bingley, UK: Emerald Group
Publishing Limited.
———. 1998. The Social Structure of Right and Wrong. San Diego, CA:
Academic Press.
Bourdieu, Pierre. 1977. Outline of a Theory of Practice. (Richard Nice, trans.).
Cambridge: Cambridge University Press.
Bowman, Tim, & Renee Montagne. 2009. Rules of Engagement Are a Dilemma
For U.S. Troops. NPR. http://www.npr.org/templates/story/story.php?
storyId¼121330893.
Braithwaite, John. 2005. Markets in Vice, Markets in Virtue. Oxford: Oxford
University Press.
Brennan, Geoffrey, & Philip Pettit. 2004. The Economy of Esteem. Oxford:
Oxford University Press.
Bronsteen, John, Christopher Buccafusco, & Jonathan Masur. 2008. Hedonic
Adaptation and the Settlement of Civil Lawsuits. Columbia L. Rev. 108,
1516–1549.
208 ~ Osiel: Rights to do Grave Wrong
Brooks, David. 2010. The Power Elite. N.Y. Times, 19 February.
Burke, Peter. 1978. Popular Culture in Early Modern Europe. New York: New
York University Press.
Calabresi, Guido, & Philip Bobbitt. 1978. Tragic Choices. New York:
Norton.
Chivers, Christopher J. 2010. General Faces Unease Among His Own Troops.
N.Y. Times, 22 June.
———. 2012. A Changed Way of War in Afghanistan’s Skies. N.Y. Times,
15 January.
Citizens Against ProObama Media. 2010. Fareed Zakaria, Bret Stephens, Peter
Beinart Discuss 9-11 Mosque. http://citizensagainstproobamamediabias
.wordpress.com/2010/08/23/fareed-zakaria-bret-stephens-peter-beinartdiscuss-9-11-mosque-videotext/.
Clark, Geoffrey. 1999. Betting On Lives: The Culture of Life Insurance in England,
1695-1775. Manchester: Manchester University Press.
Clermont, Kevin, & Stewart Schwab. 2009. Employment Discrimination
Plaintiffs in Federal Court: From Bad to Worse? Harv. L. & Pol. Rev. 3,
103–132.
Cohen-Cole, Ethan, & Burcu Duygan-Bump. 2008. Household Bankruptcy
Decision: The Role of Social Stigma versus Information Sharing. Working
Paper, Federal Reserve Bank of Boston. http://www.bostonfed.org/bank
info/qau/wp/2008/qau0806.htm.
Collins, Lauren G., Susan Parks, & Laraine Winter. 2006. The State of Advance
Care Planning: One Decade After SUPPORT. Am. J. Hosp Palliat Care 23,
378–384.
Coser, Lewis. 1964. The Functions of Social Conflict. Glencoe, IL: Free Press.
Crawford, Neta. 2012. Ordinary Atrocity and Collateral Damage. Oxford:
Oxford University Press, forthcoming.
Dadkhah, Lara. 2010. Empty Skies Over Afghanistan. N.Y. Times, 18 February.
Dale, MaryClaire. 2011. IRS Awards $4.5M to Whistleblower. USA Today,
8 April.
Dan-Cohen, Meir. 1984. Decision Rules and Conduct Rules: On Acoustic
Separation in Criminal Law. Harv. L. Rev. 697, 625–634.
Davis, Natalie Zemon. 1975. Society and Culture in Early Modern France.
Stanford: Stanford University Press.
Democracy Now, United Nations Probe. 2012. U.S. Should Return
Stolen Sacred Lands, Including Mt. Rushmore, to Native Americans.
http://www.democracynow.org/2012/5/11/un_probe_us_should_return_
stolen.
Denis, Lara. 2001. Moral Self-Regard: Duties to Oneself in Kant’s Moral Theory.
New York: Garland Publishing.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 209
Digests of Laws of the States: Estates and Trusts. 2006. Martindale-Hubbell Law
Digest. New Providence, NJ: LexisNexis/Reed Elsevier.
Digests of Laws: International Section: Estates and Trusts. 2006. MartindaleHubbell International Law Digest. New Providence, NJ: LexisNexis/Reed
Elsevier.
Dinstein, Yorman. 2010. The Conduct of Hostilities Under the Law of
International Armed Conflict. Cambridge: Cambridge University Press.
Drèze, Jean, & Amartya Sen. 1990. Hunger and Public Action. Oxford: Oxford
University Press.
Dunlap, Charles Jr. 2001. Law and Military Interventions: Preserving
Humanitarian Values in 21st Century Conflicts. Working Paper, Carr
Center for Human Rights Policy, Harvard University. http://www.duke.
edu/~pfeaver/dunlap.pdf.
Dunoff, Jeffrey, Steven Ratner, & David Wippman. 2010. International Law:
Norms, Actors, Process. New York: Aspen Publishers.
Eisenberg, Theodore. 1989. Litigation Models and Trial Outcomes in Civil
Rights and Prisoner Cases. Georgetown L. J. 77, 1567–1602.
Ellickson, Robert. 1991. Order Without Law: How Neighbors Settle Disputes.
Cambridge, MA: Harvard University Press.
Elster, Jon. 1985. Making Sense of Marx. Cambridge: Cambridge University
Press.
Emanuel, Ezekiel, & Linda Emanuel. 1992. Proxy Decision Making for
Incompetent Patients: An Ethical and Empirical Analysis. J. Am. Med.
Assoc. 267, 2067–2071.
Emanuel, Linda. 1993. Advance Directives: What Have We Learned So Far?
J. Clin. Ethic. 4, 8–16.
Ericson, Richard V., Aaron Doyle, & Dean Barry. 2003. Insurance as
Governance. Toronto: University of Toronto Press.
Ericson, Richard, & Aaron Doyle. 2004. Uncertain Business: Risk, Insurance, and
the Limits of Knowledge. Toronto: University of Toronto Press.
Ewick, Patrica, & Susan Silbey. 1992. Conformity, Contestation, and Resistance:
An Account of Legal Consciousness. N.E. L. Rev. 26, 731–750.
Farber, Daniel, & Philip Frickey. 1991. Law and Public Choice: A Critical
Introduction. Chicago: University of Chicago Press.
Feldman, Eric. 2006. The Tuna Court: Law and Norms in the World’s Premier
Fish Market. Cal. L. Rev. 93, 313–370.
Felstiner, William, Richard Abel, & Austin Sarat. 1980. The Emergence and
Transformation of Disputes: Naming, Blaming, Claiming. L. & Soc. Rev.
15, 631–654.
Finnemore, Martha, & Kathryn Sikkink. 1998. International Norm Dynamics
and Political Change. Int’l Org. 52, 887–917.
210 ~ Osiel: Rights to do Grave Wrong
Fischer, Claude. 1982. To Dwell Among Friends. Chicago: University of Chicago
Press.
Fisher, David. 2012. Morality and War: Can War Be Just in the 21st Century.
Oxford: Oxford University Press.
Foucault, Michel. 2003 [1999]. Abnormal: Lectures at the Collège de France
1974-75. (Marchetti, Valerio, & Antonella Salomoni, eds.; Burchell,
Graham trans.). New York: Picador.
Friedman, Lawrence. 1973. A History of American Law. New York: Simon and
Schuster.
Galston, William. 1991. Liberal Purposes: Goods, Virtues, and Diversity in the
Liberal State. Cambridge: Cambridge University Press.
Gambetta, Diego. 2000. Can We Trust Trust? In Diego Gambetta (ed.), Trust:
Making and Breaking of Cooperative Relations. New York: Blackwell
Publishing, pp. 213–237.
Genovese, Eugene. 1972. Roll, Jordan, Roll: The World the Slaves Made. New
York: Pantheon Books.
George, Robert. 1993. Making Men Moral: Civil Liberties and Public Morality.
Oxford: Oxford University Press.
Gerschenkron, Alexander. 1962. Economic Backwardness in Historical
Perspective. Cambridge: Harvard University Press.
Glantz, Aaron, & Anthony Swofford (eds.) 2008. Winter Soldier: Iraq and
Afghanistan, Eyewitness Accounts of the Occupation. Chicago: Haymarket
Books.
Glendon, Mary Ann. 1987. Abortion and Divorce in Western Law. Cambridge,
MA: Harvard University Press.
———. 1991. Rights Talk: The Impoverishment of Political Discourse. New York:
Free Press.
Goffman, Erving. 1963. Stigma: Notes on the Management of Spoiled Identity.
Englewood Cliffs, NJ: Prentice-Hall.
Gordon, Robert. 1984. The Ideal and the Actual: Fantasies and Practices of
New York City Lawyers, 1870-1910. In Gerald Gawalt (ed.), The New
High Priests: Lawyers in Post-Civil War America. Westport, CT:
Greenwood Press.
Granberg, Donald, & Beth Granberg. 1980. Abortion Attitudes: 1965-1980:
Trends and Determinants. Fam. Plann. Perspect. 12, 250–261.
Granovetter, Mark. 1985. Economic Action and Social Structure: The Problem
of Embeddedness. Am. J. Sociol. 91, 481–510.
Greenawalt, Kent. 1989. Conflicts of Law and Morality. Oxford: Oxford
University Press.
Gusfield, Joseph. 1970. Symbolic Crusade: Status Politics and The Temperance
Movement. Urbana: University of Illinois Press.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 211
Habermas, Jürgen. 1985. The Theory of Communicative Action, vol. 2. Boston:
Beacon Press.
Hacker, Jacob S., & Ann O’Leary (eds.) 2012. Shared Responsibility, Shared Risk:
Government, Markets and Social Policy in the 21st Century. Oxford: Oxford
University Press.
Hafner-Burton, Emilie M. 2008. Sticks and Stones: Naming and Shaming the
Human Rights Enforcement Problem. Int’l Org. 62, 689–716.
Hall, Kermit. 1989. The Magic Mirror: Law in American History. New York:
Oxford University Press.
Hardin, Steven B., & Yasmin A. Yusufaly. 2004. Difficult End-of-Life Treatment
Decisions Do Other Factors Trump Advance Directives? Arch. Intern. Med.
164, 1531–1533.
Haskell, Thomas. 2005. Taking Duties Seriously: To What Problems Are Rights
and Duties the Solution? In Norman Finkel, & Moghaddam, Tathali (eds.),
The Psychology of Rights and Duties. Washington, D.C.: American
Psychological Association.
Hathaway, Oona, & Scott Shapiro. 2011. Outcasting: Enforcement in Domestic
and International Law. Yale L. J. 121, 252–349.
Heimer, Carol Anne. 1985. Reactive Risk and Rational Action: Managing Moral
Hazard in Insurance Contracts. Berkeley: University of California Press.
Henckaerts, Jean-Marie. 2009. Proportionality. In Antonio Cassesse (ed.), The
Oxford Companion to International Criminal Justice. Oxford: Oxford
University Press.
Herold, Marc. 2012. The Obama/Pentagon War Narrative, the Real War and
Where Afghan Civilian Deaths Do Matter. Revistas de Paz y Conflictos 5,
44–53.
Hobsbawm, Eric. 1959. Primitive Rebels: Studies in Archaic Forms of Social
Movements in the 19th and 20th Centuries. Manchester: Manchester
University Press.
Hochschild, Arlie. 2012. The Outsourced Self: Intimate Life in Market Times.
New York: Macmillan Press.
Hohfeld, Wesley Newcomb. 1923. Fundamental Legal Conceptions. New Haven:
Yale University Press.
Holmes Oliver W Jr. 1881. The Common Law. Boston: Little Brown and
Company.
Horne, Christine. 2009. The Rewards of Punishment: A Relational Theory of
Norm Enforcement. Stanford: Stanford University Press.
Howell, Signe. 1997. Introduction. In Signe Howell (ed.), The Ethnography of
Moralities. London: Routledge.
Hunter, James Davison. 1994. Before the Shooting Begins: Searching for
Democracy in America’s Culture War. New York: Free Press.
212 ~ Osiel: Rights to do Grave Wrong
Ingram, Martin. 1984. Ridings, Rough Music, and the “Reform of Popular
Culture” in Early Modern England. Past Present 105, 79–113.
Janser, Lieutenant Colonel Michael J. 2007. Cognitive Biases in Military
Decision Making. U.S. Army War College. http://www.dtic.mil/cgi-bin/
GetTRDoc?AD¼ADA493560.
Jones, Rachel K., Jacqueline E. Darroch, & Stanley K. Henshaw. 2002.
Contraceptive Use Among U.S. Women Having Abortions in 2000–2001.
Perspectives on Sexual & Reprod. Health 34, 294–303.
Kahl, Colin. 2007. In the Crossfire or the Crosshairs: Norms, Civilian
Casualties, and U.S. Conduct in Iraq. Int’l Sec. 32, 7–46.
Kant, Immanuel. 1930. Duties to Oneself. Lectures on Ethics. (L. Infield, trans.).
New York: Century.
Keck, Margaret, & Kathryn Sikkink. 1998. Activists Across Borders: Advocacy
Networks in International Politics. Ithaca: Cornell University Press.
Kaufman, Sharon. 2005. . . . And a Time to Die: How American Hospitals Shape
the End of Life. New York: Scribner.
Kennedy, Duncan. 1986. Freedom and Constraint in Adjudication: a Critical
Phenomenology. J. Leg. Ed. 36, 518–562.
Kennerly, Maxwell S. 2009. Why False Claims Act Whistleblower Cases Need
Awards Over $50 Million. Litigation & Trial Blog, http://www.litigation
andtrial.com/2009/04/articles/trial/ideas/why-false-claims-actwhistleblower-cases-need-awards-over-50-million.
Lightfoot-Klein, Hanny. 1989. Prisoners of Ritual: An Odyssey into Female
Genital Circumcision. Binghamton, NY: Haworth Press.
Klimchuck, Dennis. 2011. Is the Law of Equity Equitable in Aristotle’s Sense?
Unpublished manuscript. http://www.law.ucla.edu/workshops-colloquia/
Documents/Klimchuk.%20Is%20the%20Law%20of%20Equity%20
Equitable%20in%20Aristotles%20Sense.pdf.
Klosko, George. 2011. Are Political Obligations Content Independent? Pol.
Theory 39, 498–523.
Koplow, David. 2010. Death by Moderation: The U.S. Military’s Quest for Usable
Weapons. Cambridge: Cambridge University Press.
Krauthammer, Charles. 2010. Sacrilege at Ground Zero. Washington Post, 13
August.
KRC/Boston Globe Poll. 1989. Abortion: A New Era—Polling Report. May 22,
Boston.
Kristof, Nicholas. 2010. Taking Bin Laden’s Side. N.Y. Times, 21 August.
Kull, Steven. 2007. Negative Attitudes Toward the US. in the Muslim World: Do
They Matter? World Public Opinion. http://www.worldpublicopinion
.org/pipa/articles/brmiddleeastnafricara/361.php?nid¼&id¼&pnt¼361&lb
¼btvoc.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 213
Kuran, Timur. 1995. Private Truths, Public Lies: The Social Consequences of
Preference Falsification. Cambridge, MA: Harvard University Press.
Lambek, Michael. 2010. Introduction. In Michael Lambek (ed.), Ordinary
Ethics: Anthropology, Language, and Action. Bronx, NY: Fordham
University Press.
Langevoort, Donald. 2011. Getting (Too) Comfortable: In-House Lawyers,
Enterprise Risk and the Financial Crisis. Georgetown Pub. Law & Legal
Theory, Res. Paper No. 11-135. http://papers.ssrn.com/sol3/papers.cfm?
abstract_id¼1932398.
Larsson, Margareta, Gunilla Aneblom, Viveca Odlind, & Tanja Tyden. 2002.
Reasons for Pregnancy Termination, Contraceptive Habits and
Contraceptive Failure Among Swedish Women Requesting an Early
Pregnancy Termination. Acta Obstet. Gynecol. Scand. 81, 64–71.
Lerner, Jennifer S., & Philip E. Tetlock. 1999. Accounting for the Effects of
Accountability. Psych. Bull. 125, 255–275.
Lessig, Lawrence. 1995. The Regulation of Social Meaning. Chicago L. Rev. 62,
943–1042.
Lewis, David. 1969. Convention: A Philosophical Study. Cambridge, MA:
Harvard University Press.
Lieberman, Harris, Gaston Bathalon, Cristina Falco, Charles Morgan III, Philip
Niro, & Tharion William. 2005. The Fog of War; Decrements in Cognitive
Performance and Mood Associated with Combat-Like Stress. Aviation,
Space, and Environ. Med. 76, C7–C14.
Lipman, Frederick. 2012. Whistleblowers: Incentives, Disincentives, and
Protection Programs. Hoboken, NY: John Wiley & Sons.
Lind, Jennifer. 2008. Sorry States: Apologies in International Politics. Ithaca:
Cornell University Press.
Luban, David. 1988. The Noblesse Oblige Tradition in the Practice of Law.
Vanderbilt L. Rev. 41, 717–740.
Luhmann, Niklas. 1979. Trust and Power. New York: Wiley.
Lynch, Holly Fernandez, Mathes, Michele and Sawicki, Nadia N., Compliance
with Advance Directives: Wrongful Living and Tort Law Incentives (June
19, 2008). U of Penn Law School, Public Law Research Paper No. 08-28;
Journal of Legal Medicine, Vol. 29, 2008. Available at SSRN: http://ssrn.
com/abstract¼1148384.
MacIntyre, Alasdair. 1981. After Virtue: A Study in Moral Theory. Notre Dame,
Ind.: Notre Dame University Press.
Mackie, Gerry. 1996. Ending Footbinding and Infibulation: A Convention
Account. Am. Sociol. Rev. 61, 999–1017.
Markel, Dan. 2001. Are Shaming Punishments Beautifully Retributive?
Vanderbilt L.R. 54, 2157–2242.
214 ~ Osiel: Rights to do Grave Wrong
McAdams, Richard. 1997. The Origins, Development, and Regulation of
Norms. Mich. L. Rev. 96, 376–381.
———. 2009. Resentment, Excuse and Norms. In Peter Cane (ed.), The
Hart-Fuller Debate in the Twenty-First Century. Portland, OR: Hart
Publishing, pp. 249–258.
McCloskey, Deirdre. 2006. The Bourgeois Virtues: Ethics for an Age of Commerce.
Chicago: University of Chicago Press.
McKee, Michael, & Scott Lanman. 2009. Greenspan Says U.S. Should Consider
Breaking Up Large Banks. http://www.bloomberg.com/apps/news?pid
¼newsarchive&sid¼aJ8HPmNUfchg.
McKinley, Jesse, & Kirk Johnson. 2008. Mormons Tipped Scale in Ban on Gay
Marriage. N.Y. Times, 18 November.
McNeal, Gregory. 2011. The U.S. Practice of Collateral Damage Estimation
and Mitigation. Working Paper. http://papers.ssrn.com/sol3/papers.cfm?
abstract_id¼1819583.
Mechanic, David. 1996. Changing Medical Organization and the Erosion of
Trust. Milbank Q. 74, 171–189.
Merryman, John Henry (ed.) 2006. Imperialism, Art and Restitution.
Cambridge: Cambridge University Press.
——— 2009. Thinking About the Elgin Marbles. Austin, TX: Wolters Kluwer
Law & Business.
Miller, Bruce. 1981. Autonomy & the Refusal of Lifesaving Treatment. Hastings
Center Rep. 11, 22–28.
Miller, William Ian. 1997. The Anatomy of Disgust. Cambridge, MA: Harvard
University Press.
Millman, Marcia. 1976. The Unkindest Cut: Life in the Backrooms of Medicine.
New York: William Morrow & Co.
Mills, C. Wright. 1959. The Sociological Imagination. New York: Oxford
University Press.
Ministry of Justice. 2009. Rights and Responsibilities: Developing Our
Constitutional Framework. http://www.justice.gov.uk/publications/docs/
rights-responsibilities.pdf.
Mizrachi, Nissim, Israel Drori, & Renee Anspach. 2007. Repertoires of Trust:
The Practice of Trust in a Multinational Organization Amid Political
Conflict. Am. Sociol. Rev. 72, 143–165.
Nicholson, Harold. 1939. Diplomacy. London: Butterworth.
Nielsen, Laura Beth, Robert Nelson, & Ryon Lancaster. 2010. Individual
Justice or Collective Legal Mobilization?: Employment Discrimination
Litigation in the Post-Civil Rights U.S. J. Empirical Legal Stud. 7,
175–201.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 215
Nielsen, Laura, & Robert Nelson. 2005. Rights Realized? An Empirical Analysis
of Employment Discrimination Litigation as a Claiming System. Wisc. L.
Rev. 2005, 663–712.
Nielson, Laura Beth. 2010. Address to Directors of the American Bar Foundation.
18 June. Chicago.
Nussbaum, Martha. 2004. Hiding From Humanity: Disgust, Shame and the Law.
Princeton: Princeton University Press.
Offe, Claus. 1972. Advanced Capitalism and the Welfare State. Polit. Soc. 2,
479–488.
O’Hanlon, Michael, & Jason Campbell. 2007. Iraq Index: Tracking Variables of
Reconstruction and Security in Post-Saddam Iraq. The Brookings Institute
http://www.brookings.edu/fp/saban/iraq/index.pdf.
Office of the Director of National Intelligence. 2006. Declassified Key Judgments
of the National Intelligence Estimate, Trends in Global Terrorism, Implications
for the U.S. Washington, D.C.
Oppenheimer, Mark. 2012. The Loneliness of Doing Right. N.Y. Times, 23
February.
Orentlicher, David. 2001. Matters of Life and Death: Making Moral Theory Work
in Medical Ethics and the Laws. Princeton: Princeton University Press.
Osiel, Mark. 1999. Obeying Orders: Atrocity, Military Discipline and the Law of
War. New Brunswick, NJ: Transaction Publishers.
Ostrom, Elinor. 1990. Governing the Commons. Cambridge: Cambridge
University Press.
Outhwaite, William. 2006. The Future of Society. Oxford: Blackwell Publishing.
Parsons, Talcott. 1951. The Social System. London: Routledge & Kegan Paul Ltd.
Pepper, Stephen L. 1995. Counseling at the Limits of the Law: An Exercise in the
Jurisprudence and Ethics of Lawyering. Yale L. J. 104, 1545–1610.
Perkins, Wesley. 2003. The Social Norms Approach to Preventing School and
College Substance Abuse. San Francisco: Jossey-Bass.
Pew Research Center. 2006. Strong Public Support for Right to Die. http://www
.people-press.org/files/legacy-pdf/266.pdf.
Perreau-Saussine, Amanda, & James Bernard Murphy. 2007. The Character
of Customary Law: an Introduction. In Amanda Perreau-Saussine, &
James Bernard Murphy (eds.), The Nature of Customary Law: Legal,
Historical and Philosophical Perspectives. Cambridge: Cambridge
University Press.
Pinker, Steven. 2011. The Better Angels of Our Nature: Why Violence Has
Declined. New York: Viking.
Porter, Jean. 2007. Custom, Ordinance and National Right in Gratian’s
Decretum. In Perreau-Saussine Amanda, & James Bernard Murphy (eds.).
216 ~ Osiel: Rights to do Grave Wrong
Posner, Eric. 2000. Law and Social Norms. Cambridge, MA: Harvard University
Press.
Posner, Richard. 2012. Physician-Assisted Suicide—Posner. The Becker-Posner
Blog. http://www.becker-posner-blog.com/2012/02/physician-assisted-sui
cideposner.html.
Pound, Roscoe. 1907. The Need of a Sociological Jurisprudence. Ann. Rep.
A.B.A. 31, 911–926.
Putnam, Robert. 2001. Bowling Alone: The Collapse and Revival of American
Community. New York: Simon & Schuster.
Rasch, Vibeke, Hanne Wielandt, & Lisbeth B. Knudsen. 2002. Living
Conditions, Contraceptive Use and the Choice of Induced Abortion
Among Pregnant Women in Denmark. Scand. J. Pub. Health 30, 293–299.
Raz, Joseph. 2009. The Authority of Law. Oxford: Oxford University Press.
Ricks, Thomas. 2009. The Gamble: General David Petraeus and the American
Military Adventure in Iraq, 2006–2008. New York: Penguin Press.
Roach, Joseph. 1993. Carnival and the Law in New Orleans. Drama Rev. 37,
42–75.
Roberts, Julian, Loretta Stalans, David Indermaur, & Mike Hough. 2002. Penal
Populism and Public Opinion. Oxford: Oxford University Press.
Robinson, Paul H. 2000. Why Does the Criminal Law Care What the Layperson
Thinks Is Just? Coercive Versus Normative Crime Control. Virg. L. Rev. 86,
1839–1869.
Robinson, Paul, & John Darley. 1995. Justice Liability and Blame. Boulder, CO:
Westview Press.
———. 2010. The Disutility of Justice. N.Y.U. L. Rev. 85, 1940–2033.
Ronen, Yaël. 2009. Avoid or Compensate? Liability for Incidental Injury to
Civilians Inflicted During Armed Conflict. Vanderbilt J. of Transnat’l L.
42, 181–226.
Rost, Peter. 2006. The Whistleblower: Confessions of a Healthcare Hitman.
Brooklyn, NY: Soft Skull Press.
Rubin, Alissa. 2012. Deal Reached on Contested Afghan Night Raids. N.Y.
Times, 8 April.
Ruiz, Teofilo. 2012. A King Travels: Festive Traditions in Late Medieval and Early
Modern Spain. Princeton: Princeton University Press.
Sassaman, Nathan. 2008. Warrior King: The Triumph and Betrayal of an
American Commander in Iraq. New York: St. Martin’s Press.
Scanlon, Thomas. 1998. What We Owe Each Other. Cambridge, MA: Belknap
Press of Harvard University Press.
Schauer, Fred. 1981. Can Rights Be Abused? Phil. Q. 31, 225–235.
———. 1991. Playing by the Rules. Oxford: Oxford University Press.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 217
Scheppele, Kim. 2011. Amartya Sen’s Vision for Human Rights—And Why He
Needs the Law: Commentary on the 2011 Grotius Lecture. Am. Soc. Int’l L.
Proc. 105, 12–22.
Schunmann, Catherine, & Anna Glasier. 2006. Measuring Pregnancy Intention
and Its Relationship with Contraceptive Use Among Women Undergoing
Therapeutic Abortion. Contraception 73, 520–524.
Searle, John. 1983. Intentionality: An Essay in the Philosophy of Mind.
Cambridge: Cambridge University Press.
Sen, Amartya. 2001. Normative Evaluation and Legal Analogies. Wash. Univ.
School of Law, Conference on “Norms and the Law” http://washu.wsoldev
.com/centeris/Papers/Norms/sen2.pdf, pp. 1–21.
———. 2004. Elements of a Theory of Human Rights. Phil. & Public Affairs 32,
315–316.
———. 2006. Human Rights and the Limits of Law. Cardozo L. Rev. 27,
2913–2927.
———. 2009. The Idea of Justice. Cambridge, MA: Belknap Press of Harvard
University Press.
Seymour, Jane. 2001. Critical Moments: Death and Dying in Intensive Care.
Buckingham: Open University Press.
Shavell, Steven. 1979. On Moral Hazard and Insurance. Q. J. Econ. 93, 541–562.
Shklar, Judith. 1964. Legalism: Law, Morals, and Political Trials. Cambridge,
MA: Harvard University Press.
Solomon, Mildred et al. 1992. Decisions Near the End of Life: Professional
Views on Life-Sustaining Treatment. Am. J. Public Health 83, 14–23.
Stockdale, James. 1995. Thoughts of a Philosophical Fighter Pilot. Stanford, CA:
Hoover Institution Press.
Stolberg, Sheryl Gay. 2010. Obama Says Mosque Remarks Were About Rights.
N.Y. Times, 15 August.
Stuber, Jennifer, Sandro Galea, & Bruce Link 2011. Stigma and Smoking
Inequalities. In Peter Bearman, et al. (eds.), After Tobacco: What Would
Happen If Americans Stopped Smoking. New York: Columbia University
Press.
Sullivan, Teresa A., Elizabeth Warren, & Jay Lawrence Westbrook. 1989. As We
Forgive Our Debtors: Bankruptcy and Consumer Credit in America. New
York: Oxford University Press.
Sunstein, Cass. 2007. If People Would Be Outraged by Their Rulings: Should
Judges Care? Stan. L. Rev. 60, 155–212.
Support for Same-Sex Marriage Edges Upward. 2010. Pew Research Center.
http://www.people-press.org/2010/10/06/support-for-same-sex-marriageedges-upward/.
218 ~ Osiel: Rights to do Grave Wrong
Tapp, Christine et al. 2008. Iraq War Mortality Estimates: A Systematic Review.
Confl. Health 2, 1–13.
Thomas, Keith. 1964. Work and Leisure in Pre-Industrial Society. Past Present
29, 50–56.
Tirman, John. 2011. The Deaths of Others: The Fate of Civilians in America’s
Wars. New York: Oxford University Press.
Tomasi, John. 2001. Liberalism Beyond Justice: Citizens, Society, and the
Boundaries of Political Theory. Princeton: Princeton University Press.
Turner, Stephen. 2011. Explaining the Normative. Cambridge: Polity Press.
U.N. Department of Economic and Social Affairs. 2011. Abortion Policies: A
Global Review. http://www.un.org/esa/population/publications/abortion.
U.S. Army & Marine Corps. 2007. The U.S. Army/Marine Corps
Counterinsurgency Manual. Chicago: University of Chicago Press.
Veyne, Paul. 1984. Writing History: Essays on Epistemology. (Mina MooreRinvolucri, trans.). Middletown, CT: Wesleyan University Press.
Waldron, Jeremy. 1981. A Right to Do Wrong. Ethics 92, 22–39.
———. 2010. Dignity, Rights, and Responsibilities. Working Paper, New York:
University School of Law, 4–6. http://ssrn.com/abstract¼1710759.
Wallace, Isla, & Lisa Bunting. 2007. An Examination of Local, National, and
International Arrangements for the Mandatory Reporting of Child Abuse.
http://www.nspcc.org.uk/Inform/publications/downloads/
mandatoryreportingNI_wdf51133.pdf.
Walsh, Declan, Eric Schmitt, & Steven Lee Myers. 2012. U.S. Talks Fail as
Pakistanis Seek Apology. N.Y. Times, 27 April.
Waters, Timothy. 2012. Plucky Little Russia: Misreading the Georgian War
Through the Distorting Lens of Aggression. Stan. Int’l L. J., forthcoming.
Weber, Max. 1949. The Methodology of the Social Sciences (Edward Shils, &
Henry Finch eds. & trans.). Glencoe, IL: Free Press.
Weil, Frederick D. 1982. Tolerance of Free Speech in the United States and West
Germany, 1970–79: An Analysis of Public Opinion Survey Data. Social
Forces 60, 973–992.
Weisberg, Robert. 1986. Commercial Morality, the Merchant Character, and
the History of the Voidable Preference. Stan. L. Rev. 39, 1–138.
———. 2003. Norms and Criminal Law, and the Norms of Criminal Law
Scholarship. J. Crim. L. & Criminol 93, 467–592.
West, Mark. 1997. Legal Rules and Social Norms in Japan’s Secret World of
Sumo. J. Leg. Stud. 26, 165–202.
Whitman, James. 1998. What is Wrong with Inflicting Shame Sanctions? Yale
L.J. 100, 1005–1092.
Winch, Peter. 1958. The Idea of a Social Science and Its Relation to Philosophy.
London: Routledge & Paul.
Spring 2013: Volume 5, Number 1
~
Journal of Legal Analysis ~ 219
Winston, Kenneth. 2008. What Makes Ethics Practical. Cambridge, MA:
Kennedy School of Government, Faculty Research Working Paper No.
RWP08-013. http://papers.ssrn.com/sol3/papers.cfm?abstract_id¼976556.
Witt, John Fabian. 2008. Form and Substance in the Law of Counterinsurgency
Damages. Loyola of L.A. L. Rev. 41, 1455–1482.
Wood, John, & Jean Serres. 1970. Diplomatic Ceremonial Protocol: Principles,
Procedures & Practices. New York: Columbia University Press.
Wozner, Shai. 2000–01. Consistency and Effectiveness in Jewish Law as
Reflected by the Lekhat’hila-Bedeabad Distinction. Diney Israel 20-21,
42–100. (Heb.).
Wrage, Stephen. 2003. The Ethics of Precision Air Power. In Stephen Wrage
(ed.), Immaculate Warfare: Participants Reflect on the Air Campaigns over
Kosovo, Afghanistan, and Iraq. Westport, CT: Praeger Publishers.
Zakaria, Fareed. 2010. Build the Ground Zero Mosque. Daily Beast, 6 August.
Zelizer, Viviana. 1979. Morals and Markets: The Development of Life Insurance in
the United States. New York: Columbia University Press.
Zussman, Robert. 1992. Intensive Care: Medical Ethics and the Medical
Profession. Chicago: University of Chicago Press.