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

Harvard University Press), 2019 Daniel Muñoz Forthcoming in Criminal Law and Philosophy Can our rights protect us even as we do terrible things, like wasting cash and voting for bad candidates? Jeremy Waldron says yes, on the grounds that rights would not truly protect our autonomy if they applied only to anodyne choices from permissible options, such as the choice between chocolate and vanilla ice cream.1 Waldron’s critics push back, contending that “rights to do wrong” are incoherent or inessential to autonomy. Given the title of Osiel’s book, I expected another salvo in this familiar debate, distinguished only by its extensive case studies. I was wrong. An understated, unexpected masterpiece, The Right to Do Wrong transcends the concept from which it takes its name to revitalize a classic conception of morality and law. It’s not Waldron with footnotes; it’s Montesquieu with social science. For Montesquieu, laws depend upon “the spirit of a nation.” For Osiel, that “spirit” is common morality—a community’s shared moral beliefs. Common morality forbids many things that American law does not: disinheriting children arbitrarily (56), shirking debts by filing for bankruptcy (49), collecting looted works of art (65), uttering hateful slurs (44), declining life-saving medical attention (91–8)—the list goes on and on. How should a society deal with such abuses of rights? We might roll back our rights; we could also accede to the abuses. (“They’re just exercising their rights,” after all.) Osiel shines a light on a third option. The abuse of rights can be limited by the threat