Rights to do grave wrong

Mark Osiel

lundi 21 novembre 2016

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.