Osiel on Law and Morality

9780674368255-lgIn my comparative law class recently, we were discussing Western positivism, particularly the idea that law is autonomous–something that exists independently from morality, or religion, or politics. As law professor Mark Osiel (Iowa) explains in a new book from Harvard, The Right to Do Wrong: Morality and the Limits of Law, the autonomy of law depends on the existence of other ways of enforcing social values, and we do have lots of those. Perhaps it’s better to rely on these non-legal enforcement mechanisms than on the legal system–too much law can lead to tyranny. On the other hand, recent episodes show us that non-legal enforcement mechanisms bring their own dangers. Social media offers ways of policing society that most totalitarians in history could only imagine. Anyway, the book looks very interesting. Here’s the description from the Harvard website:

Much of what we could do, we shouldn’t—and we don’t. We have a free-speech right to be offensive, but we know we will face outrage in response. We may declare bankruptcy, but not without stigma. Moral norms constantly demand more of us than the law requires, sustaining promises we can legally break and preventing disrespectful behavior the law allows.

Mark Osiel takes up this curious interplay between lenient law and restrictive morality, showing that law permits much wrongdoing because we assume that rights are paired with informal but enforceable duties. People will exercise their rights responsibly or else face social shaming. For the most part, this system has worked. Social order persists despite ample opportunity for reprehensible conduct, testifying to the decisive constraints common morality imposes on the way we exercise our legal prerogatives. The Right to Do Wrong collects vivid case studies and social scientific research to explore how resistance to the exercise of rights picks up where law leaves off and shapes the legal system in turn. Building on recent evidence that declining social trust leads to increasing reliance on law, Osiel contends that as social changes produce stronger assertions of individual rights, it becomes more difficult to depend on informal tempering of our unfettered freedoms.

Social norms can be indefensible, Osiel recognizes. But the alternative—more repressive law—is often far worse. This empirically informed study leaves little doubt that robust forms of common morality persist and are essential to the vitality of liberal societies.