Download In employing the term “rights to do wrong,” I mean

Rights to Do Grave Wrong
Mark J. Osiel, Aliber Family Chair,
College of Law, University of Iowa
Should there happen to be a country whose inhabitants were of a social
temper, open-hearted, cheerful, endowed with…a facility in
communicating their thoughts; who were sprightly and agreeable… and
beside had courage, generosity, frankness and a certain notion of honor,
no one ought endeavor to restrain their manners by laws, unless he would
lay a constraint on their virtues…
Baron de Montesquieu,
The Spirit of the Laws, 1748
At various historical moments, the law has been entrusted with the task of
bearing morality, religion, science, politics, the State, as if its fine
spiderwebs on their own could keep humans from quarrelling, going for
the jugular, tearing each other’s guts out; as if it were law and law alone
that had made us civilized—and even made us human.
Bruno Latour,
An Inquiry into Modes of Existence:
An Anthropology of the Moderns, 2013
Defining the Puzzle
The relationship between law and common morality raises questions
crucial for both social understanding and policy-making, questions
systematically examined by no field of study. From disparate sources, this book
assembles and takes stock of what we may glean of that relationship and
identifies fruitful directions for its further investigation.
Since the Second World War, Anglo-American philosophers have had
much to say about the relationship between law and “morality,” by which they
mean moral truth, rightly understood. In more recent years, economists have
shown keen interest in the relation between law and “social norms,” taken to
include standards of conduct embodying moral principles. Yet it is sociology
which offers the most perspicacious guidance in plumbing the interaction
between a legal system and what most people actually governed by it consider
right and wrong.
I refer to sociology in its most unfashionable and ambitious register, in
the tradition of Montesquieu and Durkheim. To their capacious theoretical
concerns we must today add careful, ground-level inquiry into the prevalent
responses of ordinary people to lawful activities they deem reprehensible. By
closely comparing and contrasting these activities and responses, we can
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inductively identify empirical patterns enabling us to generalize still more
broadly about the relationship between law and society, and even to guide our
law-making efforts on this basis, to some degree.
The interactions between common morality and the law have been of
occasional curiosity, at least, to legal theory generally, though no longer to legal
sociology as such, a discipline whose range of aspiration has narrowed greatly
since its founders. What defines the broader enterprise of legal theory, as widely
understood, is its commitment to posing the most comprehensive questions
concerning law’s intersections with life’s myriad other, nonlegal dimensions, by
drawing on diverse currents of thought, notably philosophy and economics, but
also psychology, anthropology, and literary discourse. A sustained effort to
uncover and make overall sense of law’s connections to (and departures from)
commonsense morality should therefore naturally draw interest among
scholars in all corners of this intellectually spacious endeavor, whatever their
more specific area of disciplinary training and formal niche within the division
of academic labor.
Though there are many aspects to this connection (several of them here
assayed), one of these demands special attention—perhaps urgently so, some
insist. It may at first seem ingenuous to say, but a major reason why the law
permits so much moral wrongdoing—some of it petty, much profound—is that
we often assume people will exercise their rights “responsibly,” in light of a
concern for others’ welfare, concerns eluding law’s reach. This simple, littleobserved fact turns out to explain much of the gap between law and everyday
morality, I shall show, and hence too, by implication, a goodly measure of the
relation between the legal system and social order at large.
In fact, it is only because common morality so decisively constrains at
key points the way we actually use our legal rights—including those we most
cherish and celebrate—that we possess many of these entitlements at all,
including those on which we construct some of our most fundamental political
and economic institutions. It follows that if we could no longer trust to common
morality in performing this task, we would need to rethink a good portion of our
legal system, redesigning it upon assumptions less ‘innocent,’ less hopeful about
the capacity of individuals and institutions for self-restraint in the exercise of
their rights. That would entail a step both daunting and momentous.
To begin with a humble example, consider the law of personal
bankruptcy. Though it entitles us to absolve our debts, both lawmakers and the
general public remain ambivalent over whether people should feel entirely
comfortable in doing so. We thus grant a right whose exercise, we know, carries
a certain aura of stigma. We do not like to admit to stigmatizing others. Yet we
do not wish to entirely dispel such stigma here. In fact, we may welcome the
feelings of shame that stigma will induce in some such people, even at this
already-stressful moment in their lives. For we suspect these moral sentiments
will discourage the right’s “abuse.” To be sure, we sincerely believe that people
should have the option to go bankrupt—when they really need it. But we don’t
want them to believe too readily that they need it. And we suspect we cannot
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draft the law so perfectly as to prevent that danger from materializing, perhaps
more than occasionally.
At such points within our legal systems, a curious interplay develops
between a lenient law and a more censorious morality which we depend on to
dampen the law’s use, a dampening we often have at least vaguely in mind even
as we devise the law’s terms. This general configuration—ample rights, joined
to stigmatizing restraints—recurs in patterned ways at various points across
the legal landscape. We nonetheless sometimes remain sheepish about
admitting our practices here, with the result that stigma, as a mechanism of
rights-restraint, is unduly stigmatized.
But why do we do things this way? Why do we knowingly establish
entitlements considerably broader than the conduct we’re truly prepared to
countenance? Once we recognize the law’s reliance on stigma, and that this
reliance is both extensive and inevitable, we must ask how far the implications
of this recognition run? Might it mean that even those rights we regard as most
central to our democratic way of life—to engage in offensive political speech, for
instance—turn out to depend for their very existence on our expectation that
few will ever invoke them? If that is so, does this make us hypocrites?
If we dismiss these questions, we succumb to mystification in defending
treasured rights entirely in terms of the high moral principles they enshrine. For
these rights rest at least equally on our tacit sociological assumptions about who
will exercise them, when and how frequently. Not only explanatory questions,
but normative matters too are here at stake: often we cannot fully assess the
defensibility of a given legal right until we discover how it does or doesn’t
influence real-life activity. Our expectations about its likely real-life influence
often rest on little evidence, moreover, and so regularly prove to be unfounded.
Though accurate predictions of law’s effect are sometimes easy enough,
at times it’s a shot in the dark. A serious challenge for the lawmaker is then that
more people may show up at the door to claim the rights she blithely created
but secretly hoped few would employ. Informal constraints against what she
considers the “abuse” of rights may prove weaker than anticipated. The
converse is always possible as well; and under-claiming can prove as
troublesome as over-claiming.
These considerations prompt us to wonder: why does resistance to the
exercise of rights arise acutely at certain points within a legal system, and not at
others? And how does the anticipation of this resistance come to shape the law
itself? Specifically, how does such anticipation influence the drawing of lines
between what the law will and will not allow? For social and legal theory, these
questions are unfamiliar.
We may delude ourselves, in ideologically problematic ways, whenever
legal rights allegedly central to our system of government and the legitimacy of
our social order exist only insofar as they are almost never put into action. But
many situations exist, I’ll show, where there is good reason to create—even
commend ourselves for championing and maintaining—de jure entitlements
unlikely ever (or nearly ever) to be invoked. These are rights sometimes central
to whom we wish to be as a people, yet ultimately agreeable to us only insofar
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as we successfully stanch their de facto use in most of the circumstances to
which they facially extend. To grasp this paradox and its far-reaching
implications—the goal of this book—is to appreciate the workings of our legal
system in a distinctive and perhaps unsettling light.
If we should be concerned about mystification in how we understand
our legal rights, it is in places where we mistakenly imagine these informal
counterweights to abusive rights-claiming are safely in place. We should also be
wary of places where such weights grow too heavy, imperiling the vitality of
rights whose real-life exercise we deem essential to a decent society.
Conservatives tend to worry about the first of these dangers, liberals the second.
It is helpful to put polemics momentarily aside, however, and investigate these
‘contrasting’ dangers as twin sides of a single coin, complementary aspects of
the same sociological question. This is the question of how to design our rights
when we realize that the conduct they authorize will nonetheless likely invite
widespread reproach.
The legal system is only one part of a larger normative order and often
stands in tension with other parts, requiring us to consider their workings and
their interactions with law itself. We regularly acknowledge moral duties to
refrain from, and to discourage in others, activities the law perfectly allows, just
as we sometimes feel duties to encourage lawful activities that, we fear, suffer
undue impediments. In either case, the law provides inadequate guide to what
we believe that we and others ought to do. Yet it is a common pathology—
observed of Americans since Tocqueville—to think that law offers sufficient
basis for prescriptive appraisal.
Thus, for instance, when a person is accused of murder, journalists and
others think themselves publicly obliged to uphold the law’s standard of proof—
“beyond a reasonable doubt”—in assessing the likelihood of his culpable
involvement. There is no reason why we should adhere to so high an evidentiary
burden outside the courtroom, however, where the stakes and objectives are
quite different than within. As neighbors and citizens, our concerns and
legitimate curiosities are by no means identical to those of jurors. Yet as one
distinguished law professor observes, “When law and morality are so much
conflated in popular (and even sometimes professional) thought, it is hardly
surprising that people should want to place the same limit on morality’s ambit
as on the law’s.”
When nonlegal restraints significantly influence how we exercise our
rights, the result is that we obey unwritten rules far more demanding than any
we would wish the law to impose, even as it quietly depends upon their efficacy.
We preoccupy ourselves with the dramatic moments when these informal
impediments break down, as when neo-Nazis march through Jewish
neighborhoods. More sociologically significant, if less conspicuous, is how
frequently such inhibitions succeed, sometimes to excess. Without them, our law
would necessarily look very different, as in other lands, with sharper curbs on
even our most fundamental liberties, as we’ll see.
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When this foundation of extra-legal inhibition seems to shake, the
edifice of rights and institutions dependent upon it threatens to totter. Whether
this scenario fairly describes our recent history—if not across the board, then in
crucial corners of American society—has been a central if implicit question
within much public discussion of the country’s direction. This formulation of our
seeming predicament helps in better understanding and perhaps in grappling
with current challenges.
In a period such as the present—a period of disorienting change, severe
institutional dysfunction, and societal fragmentation—we inexorably turn to
our legal system for maintaining normative order, or at least its semblance. We
often do so without appreciating that there are distinct limits, at times readily
discernible, to what the law can offer. We must then find other, further ways to
address our dissatisfactions and distempers with one another. In so doing, we
begin to learn what it is about law, as a very particular cluster of institutions,
that requires it to seek regular supplement from other regulatory mechanisms,
at predictable places, in patterned ways. Thoughtful lawmakers regularly
formulate our rights in full awareness that we may “misuse” these, employ them
in undesired, even widely-reprehensible fashion. When creating our rights,
legislators and judges thereby gauge—at least implicitly, sometimes quite
openly—the counterbalances likely to obstruct the ‘unwelcome’ exercise of
these very rights.
What exactly are lawmakers thinking at such times? How accurate are
their assumptions, at these key moments, about the world’s true workings?
These questions prompt us to wonder whether social changes of recent decades
make it no longer credible to rely upon this tacit tempering of rights-assertion.
If that is so, then the tasks of lawmaking and legal interpretation themselves
become very different than we have long known them. It would seem the law
must then penetrate ever farther into areas of our lives once satisfactorily
governed by subtler promptings, through more informal pressures and social
processes. This in turn requires us to ask what law’s permeation into these
further crevices of life may entail for the relation between state and society, for
the preservation of personal and public liberty?
Many people find themselves vexed by how the quality of social and
political life suffers when people cannot trust one another to resolve their
differences independently of the legal system, through more casual, everyday
practices and the shared moral understandings these embody. Such concerns
pervade the work of many leading political thinkers and social scientists of
diverse theoretical orientation. The same worries at least intermittently suffuse
the thoughts of many citizens as well: a 2015 Gallup poll thus finds that 72% of
Americans believe the morals of the country are on the decline.
A frequent criticism of the United States 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 effectively push back
against rights-based ways of thinking, speaking, and acting in relation to others.
Influential work in social science attributes Americans’ increasing reliance on
law in recent decades to a decline in social trust and the “social capital”
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permitting such trust. Robert Putnam thus contends that “we 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 . . .”
We should add that social capital of the sort Putnam has in mind may
moderate not only the invocation of legal rights. It also attenuates the uncivil
behavior which common morality and the social practices embodying it once
arguably suppressed, with seeming effortlessness, and that now increasingly
inspires us to invoke such rights. An apparent weakening of informal inhibitions
on rights-talk calls into question the continued vitality of common morality. It is
credible—from evidence not merely anecdotal and memoiristic, but archival
and ethnographic as well—that in many corners of American society prevailing
mores did indeed hold such egoistic inclinations in substantial check, as avowed
“communitarians” stressed not long ago.
This account is nonetheless incomplete, at best, in viewing the law and
us lawyers as merely filling a vacuum opened up by the retreat of common
morality, a retreat induced by forces and factors unrelated to our very activities.
In fact, it is today more often observed that we legal professionals and our ways
of apprehending the world sometimes play a more proactive role in the
weakening of common morality. An empirical study of one urban hospital, at
least, suggests in fact that “as organizations become more internally legalized,
this drives out other normative orders less rule-bound…The legalization of
organizations has thus muted the voices of [these] other…orders, perhaps
because they offer less certainty, perhaps because they confer less legitimacy.”
This general concern with how the law may weaken common morality
does not confine itself, of course, to the context of changing managerial styles
within large formal organizations, still less within hospitals alone. It extends
more generally to the place of law and lawyers within the American commerce
and society. A leading scholar of the profession’s history observes a telling
historical reversal here, rich in irony. In the wake of recurrent economic crises,
during which professional ideals failed to deter self-dealing, “the argument gains
ground that law, instead of supplying surrogates for the…manners and morals
of pre-capitalist societies,” as was long thought it would, “actually hastens their
further dissolution.” Market relations were “previously depicted as the
revolutionary disruptors of social bonds, community, and authority.” Today,
however, in “a strange rhetorical inversion” they are, as historian Bob Gordon
writes,
recast as the natural "spontaneous order" (in Hayek's phrase) of society; and
law, once celebrated as the new integrating cement of commercial societies,
now appears in the former, disruptive, role of commerce. That is, it's now law
that is alleged to promote dissension, adversary conflict, litigiousness,
contempt for authority, and displacement of the trust relations allowing for
flexible and equitable discretion, with insistence on rigid and technical rules.
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This second view takes the law and us lawyers to be an independent,
energetic force in the weakening of common morality. We interject ourselves
where we may not be truly needed, crowding out alternative means of resolving
conflicts; whereas the first view understands us as stepping in, almost
reluctantly at times, to help solve problems created by a common morality
already much debilitated, its conciliatory practices now atrophied, for reasons
having nothing to do with the law’s allegedly “imperialistic” tendencies, with our
own professional self-aggrandizement.
This dichotomy, like so many within the social sciences, proves a false
one, however. Across many areas of social life, in its relation to the frailties of
common morality, the law shows itself more complex and paradoxical. Law can
be both a source of the problem and a plausible means to help address it, often
at the very same time. That proposition is admittedly quite abstract, however,
and we do best to draw up to it from a lower level of generality, in terms more
down to earth. This study thus explores several discrete aspects of the
relationship between law and common morality, approached from a social
scientific angle.
Within Western scholarship, the question of law’s relation to morality is
today almost exclusively the concern of analytic philosophy. Philosophers
generally understand the query in conceptual terms: does law logically entail
some form of morality? And can positive law be truly binding if inconsistent with
more general claims of morality, properly understood?
In contemporary moral philosophy, “the right to do wrong” refers to
something entirely different from present concerns. The philosophical
discussion poses the question of logical possibility, whether it is coherent to
speak in such terms at all. As I here define the concept here, there can be no
doubt that such rights exist, that we are not chasing a dybbuk. To speak of a
(legal) right to engage in (moral) wrong is straightforwardly to make “a midsentence shift in domains of reasons.” My concern is with how these legal rights
present themselves in our lives, how the legal system creates and copes with
their myriad manifestations.
In short, the relation between law and morality has sociological
dimensions no less than philosophical ones, prompting the question: when and
why do the two overlap, or part company? In other words, when do societies
incorporate their common morality into their law? Why do they sometimes fail
to do so, even where common morality is clear? And how do people then manage
the resulting gap between these twin normative orders? Once we settle on a few
basic definitions, these are questions of description and causal explanation,
implicating theories more within the social sciences than philosophy.
If the key questions here are not conceptual in character, then, neither
are they normative and prescriptive. I do not ask whether it is desirable to
incorporate a given moral principle and into the rules governing a particular
activity. Normative matters interest us here only insofar as people often choose
to act on their own understandings of what morality requires—of others and of
themselves—when creating the law and interacting with it thereafter.
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Every legal system largely defines itself precisely in terms of how it
answers the question of where prevailing views of morality, insofar as these
exist, will receive juridical recognition, and where they will not? Without at least
implicitly resolving this matter, one cannot construct a legal system at all. There
seems no more suitable academic pigeonhole for this question than the field of
sociology. For my overriding concerns originate in key texts of Montesquieu, on
the relation of law and “mores,” and Emile Durkheim, his writings on how the
law tends to reflect a society’s “collective conscience.” Yet neither Durkheim nor
the contemporary sociology of law (or the still-broader field of socio-legal
studies) have shown serious interest in the question.
We law professors most often pursue a third type of investigation, which
we describe as doctrinal. We meticulously describe the intricate details and
assess the implications of particular statutes, constitutions, and judicial
opinions, in light of how they fit within a larger ‘ecology’ of surrounding legal
rights, duties, and processes. The present inquiry does not fall into this category
any more than within the other two. It will sometimes be nonetheless necessary
to scrutinize the content of particular legal rules—such as those on “abuse of
rights,” insurance contracts, and free speech under the First Amendment—a
task that legal sociology undertakes only very infrequently. Without
determining the content of legal rules, it is impossible to assess how much they
comport with prevailing moral sensibilities and the social practices these reflect.
I conceive this study as an elementary introduction to its topics from an
advanced standpoint (or perhaps better, an advanced introduction from an
elementary standpoint). It is intended for university students, undergraduate
and graduate, and for scholars beyond legal academia interested in law-society
relations. I suspect my fellow legal scholars will find much to argue with here as
well, especially those with some curiosity about legal theory (in its nonphilosophical register).
The book provides an empirical look into how widely-shared moral
commitments find expression in practices restraining the exercise of legal
rights, with the result that individuals and institutions behave more
“responsibly” than the law requires. To assess these issues is to inquire into
when and why these ideals at times find themselves into our law, but sometimes
instead only into the social practices moderating its use. My purpose is to crisply
formulate the concept of a right to do wrong, identify some of its sources and
empirical expressions (with no pretense to exhaustiveness), suggest its
significance within our legal order, and encourage its further study.
Though my primary concern is with rights to do serious wrong, I will
often refer more broadly to wrong tout court, speaking simply of “rights to do
wrong.” This is partly because the gravity of the wrongdoing at issue in a
particular situation itself regularly proves a subject of contention among those
concerned—and therefore, for sociological purposes, cannot simply be
stipulated. What some will deem merely etiquette and arbitrary social
convention others will consider more fundamental, raising profound issues of
character, fairness, or justice. Differences of opinion over the perceived gravity
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of a given wrong often influence the law’s measure of response, or nonresponse, of course.
Yet even where there exists relative consensus, perceptions of gravity
may exercise greater or lesser weight in shaping the social and legal response to
the particular type of wrong. Some of these responses—though widely deemed
“draconian” (or conversely, far too indulgent)—will endure unperturbed for
long periods, “locked in” by forces of inertia which will themselves warrant
inquiry. We must examine multiple cases of perceived wrongdoing lying at
various points along this spectrum if we are to discover how much difference
prevalent perceptions of gravity—now conceived as an independent variable—
really make in accounting for the range of real-life responses to moral wrong.
Equally beckoning of sociological investigation is the question of why it is that
groups of people mark out gradations of moral gravity just as they do, at a given
place or period, and how these evaluations alter over time, whether in response
to legal change or, more often, for other reasons entirely. In light of all this, the
ensuing analysis must necessarily shift in focus, as contextual considerations
require, between the larger genus (all wrongs) and the specific species (grave
wrongdoing) of more acute present interest.
In employing the term “rights to do wrong,” I mean to include both the
type of right intentionally created by law-makers, seeking affirmatively to
protect a specific form of disfavored conduct, and the type arising only from the
absence of a prohibition, where legislators simply fail to intercede against
perceived misbehavior. My usage in this respect is consistent with ordinary
language, with how most people within the Anglo-American world standardly
employ the word “right.” Rights of the first sort are more counter-intuitive and
hence present the greater, more tantalizing puzzle, to be sure, especially when
created in full awareness that they will authorize a great deal of activity broadly
considered very unethical. For this reason, most of my examples are drawn from
this first subset.
Yet I do not wish entirely to exclude from attention the second type of
right to do wrong, and this analytical move considerably expands the potential
purview. It is often said (with only slight exaggeration) that Western liberalism,
in its classical philosophic understanding, holds that everything not expressly
prohibited is permitted, and that authoritarianism insists on precisely the
contrary. In the absence of an explicit proscription against a given activity, a
presumption of its legal permissibility thus pervades the consciousness of
liberal society.
It is therefore entirely possible that rights to do serious wrong may
come into being whenever common morality decisively shifts its contours so
that it no longer looks so leniently and charitably upon forms of lawful conduct
once universally regarded as perfectly acceptable. At that point, an evident and
sometimes-glaring disparity necessarily arises between an indulgent legality
and a more censorious common morality; and this disparity will often present
serious challenges—for both lawmakers and ordinary citizens in their daily
lives—challenges little different, at their core, than in the first case. Whether the
disparity comes into being deliberately or spontaneously, through legal changes
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“from above” or a transmutation in common morality “from below,” the
essential questions will be how to manage its implications, often vexing, and
whether to allow it wholly to endure. Still, it is likely that the political dynamics
involved in closing such a disparity prove rather different where there has been
a discrete set of identifiable individuals or institutions (legislative or judicial)
responsible for its creation than when this is not the case, where its sources are
more murky, empirically elusive, because they lie in popular consciousness,
within the volk, if you will.
Consider now several brief cases of real-life situations where the law is
considerably more indulgent than common morality, often in the expectation
that potential problems thereby generated will resolve themselves extra-legally:
Under the label “collateral damage,” thousands of innocent civilians may
be lawfully killed in combat, provided that those responsible do not intend this
result and anticipate battlefield gains will outweigh such carnage.
American law allows us to completely disinherit our children, including
young minors, even if they have done nothing to deserve this fate.
We may construct buildings on our property that are profoundly
offensive to our neighbors. In some countries, including the U.S., we may even
do such things in order to offend our neighbors.
International law allows Western museums to retain masterworks
looted long ago from their rightful owners.
When we purchase insurance to protect our property, we are free to
behave with considerable indifference in safeguarding it from destruction.
We may lawfully engage in highly offensive speech, such as denouncing
the military’s acceptance of homosexuality among the ranks, even at the funerals
of fallen soldiers.
We may decline medical attention, though our physicians correctly tell
us that we will otherwise promptly die. Any perceived moral obligations that we
may owe—to our children, other financial dependents, or to ourselves—find no
reflection in the law.
Even when a state, through its leaders, commits mass atrocity against
its citizens, in violation of innumerable international agreements, it retains a
right to “territorial integrity” against armed “humanitarian intervention” from
abroad, an entitlement subject to only the narrowest of exceptions. This legal
right enables a state to successfully perpetrate such atrocities.
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In most societies it is legally permissible to terminate a pregnancy on
the grounds that the child would be a girl. This is true even in Western countries
with substantial immigration from parts of the world where sex-selective
abortion is common, despite good reason to suspect the practice continues in
recipient countries.
An adult woman in the U.S. may employ abortion as a means of birth
control, for no other reason than that she and her sexual partner find
contraception unpleasant or burdensome.
These illustrations have something crucial in common: the law permits
what ordinary morality—widely-shared notions of right and wrong—severely
reproaches. The cases, later described in more depth, further suggest that extralegal mechanisms often limit how extensively, and in what manner, we put such
rights to use. These common features reveal a great deal not only about the
social context within which the law operates in a given situation, but about law
itself, its nature as an instrument of human governance. It is helpful to think of
these situations as involving rights to do wrong or, less evocatively, lawful
wrongdoing, terms well-capturing their paradoxical character. The reader, now
familiar with the general idea, will easily call similar situations to mind. Though
these will likely vary somewhat with one’s political proclivities, there will
nonetheless surely exist much agreement over many instances. What do we
learn from their empirical incidence and its explanation about the character of
law, as one mode of governance among others, fully intelligible only in its
operational relations to these alternatives?
The illustrations I’ve offered differ greatly in several respects, of course.
The conduct involved in each is objectionable to different people in distinct
ways. Also distinctive to each such form of disfavored conduct is the mix of
reasons why the law permits it. In seeking to constrain such behavior, we
succeed to varying degree—in some cases almost entirely, in others scarcely at
all. From each situation to the next, we also employ very different methods—
some coercive, other consensual—in restraining conduct considered
objectionable. Many of our means to this end are readily apparent to any
observer, others known only to institutional insiders, invisible to the
uninitiated.
There exists an entire class of such entitlements. These are rights we at
once deeply enshrine within our law yet actively, even aggressively at times,
discourage one another from exercising. We are often sincere and justified in
regarding them as important to protect, through legal rules sometimes
grounded in high constitutional or humanitarian principle. We nonetheless treat
such rights as advisable to frustrate at nearly every turn. We recoil especially at
the possibility of facilitating their wide usage, beyond a very restricted set of
circumstances, which the law cannot adequately define and delimit. Many feel
ambivalent, even deeply troubled, in recognizing these rights at all. It is
therefore unsurprising, then, that though they may endure for long periods,
these entitlements occasionally face strong challenge and regularly dissolve.
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Only the category of such rights endures, its social dynamics and
presuppositions regarding informal push-back, not its particular contents at a
given time.
Despite our persistent doubts about such rights, we generally act in
good conscience and on defensible grounds in establishing them. For we have
some reason to believe that various social mechanisms will press upon people
and institutions to exercise these rights “responsibly,” attending to moral
considerations that the law itself cannot fully absorb. We may regret that it
proves impossible devise a legal rule clearly distinguishing prohibited from
permitted conduct, enabling the law to more perfectly track the terms of
common morality. Yet, for practical purposes, this slippage becomes immaterial,
because we are confident that forces within “society”—a loose placeholder,
satisfactory for now—will close the gap.
This socio-legal configuration, as we might call it, arises with some
regularity. Its distinct mix of features may not be immediately recognizable, nor
readily intelligible. It presents a timeless puzzle that, at some level, everyone has
at least casually considered. It arises not only in weighty matters of national and
global concern, but in our ordinary lives. We often encounter it when wondering
why our legal system allows conduct by others, individuals or institutions,
eliciting within us powerful indignation at perceived injustice. As the times
these feelings receive no legal recognition, we occupy the realm of rights to do
wrong.
The present study is a work of social science, developing an explanatory
theory concerning certain features of social life through close scrutiny of
pertinent empirical materials, drawing on the findings of many other scholars
in the process. More precisely, this book examines a number of observable
relationships between law and common morality, to identify and account for
how these come about, why they vary with place and time, within and between
societies. When examined in conjunction, the instances of that relationship here
discussed enable us to construct an ideal-type of “rights to do wrong.” The
construct proves helpful in locating the places within a social order where
common morality and the law most clearly diverge, in that the legal system
permits activity that few would condone, much less endorse.
This divergence often prompts nonlegal resistance to the “abusive”
exercise of rights, and the nature of that resistance, real and anticipated, often
comes in turn to shape of our legal rights themselves, so that at key points these
authorize activities we at once highly value “in principle” yet know we will also
do our best to suppress in practice. The resulting compromise is often defensible
for long periods to virtually all concerned. It is a recurrent feature of socio-legal
order, rarely observed in any depth or detail, nor appreciated in its wide-ranging
implications, practical and theoretical.
The Cautionary Tale of the “Ground Zero Mosque”
12
The question of when and by what means it is acceptable to discourage
others from exercising their legal rights is of some practical importance, on
virtually a daily basis, despite the limits of our ability to discuss them. These
limits are vividly revealed, to pick an illustration from the headlines, in the 2010
controversy over an initiative to construct a Muslim cultural center, with a
prayer center, near the site of the former World Trade Center. The public debate
elicited, on both sides, several ill-considered intercessions from some of the
most 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.” This implies 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. He surely
believes, for instance, that we must all refrain from public speech fairly
described as antisemitic or white supremacist.
On many American university campuses, those of Beinart’s political
orientation often further seek—with surpassing efficacy, in many places—to
discourage the exercise of constitutional speech rights on the subject of
affirmative action, by those privately opposing most aspects of these programs.
Defenders of this controversial policy, in discouraging such speech, expressly
refer 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 weekly
Washington Post columns betray nary the slightest theological inspiration—
urged the developers to manifest greater “respect for the sacred.” He even
suggested their intentions would amount to “sacrilege.” This is odd wording for
someone well-steeped in the liberal political theory averse to such invocations
of religious language and theological argument in public discourse.
Krauthammer might have sought to proffer a liberal theory of geographical
space ritually resonant with special value, ‘sacred’ in this specific sense. That
would have allowed a more secular argument for limiting the morally acceptable
uses of such symbolically-charged 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. In light of his longstanding mode
of argument—famously hard-headed—his ‘theological’ offering here was
disingenuous.
Among opponents of the Cultural Center, still more overheated was the
intervention of New Republic erstwhile owner Martin Peretz, once an influential
intellectual voice within the Democratic Party: “I wonder whether I need honor
these people and pretend they are worthy of the privileges of the First
Amendment, which I have in my gut the sense that they will abuse.” The
possibility that our rights, even when lawfully exercised, are susceptible to
abuse is one that will repeatedly crop up in the ensuing discussion, often in more
convincing ways.
13
It is tempting to dismiss all three authors’ unpersuasive, even histrionic
remarks with the charitable concession that, for none of them, was this his finest
moment. Yet their common failure suggests that the problem resides in
limitations of our available vocabulary for grappling with the very notion of a
right to do serious wrong, and so runs deeper than any momentary lapses in
reasoning by prominent public thinkers.
Wherever one may come out on that particular, passing controversy, we
should surely be able to discuss significant moral questions, those the law
undoubtedly touches but leaves largely unresolved, without resorting to such
debased forms of ‘argument’: calling in divine thunderbolts against our
opponents (Krauthammer), abusing the sometimes-valuable notion of an “abuse
of rights” (Peretz), or summarily dismissing others’ arguments as pure bigotry
(Beinart), as if appeals to graciousness or solicitude for others’ grief could in
principle have no place in public conversation. Accusations of bigotry were
indeed common from those defending religious liberties of the mosque’s imam
and developer. Yet if bigotry were 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 have to be condemned in just those
terms.
Even a supremely eloquent President found himself struggling to
articulate anything more coherent than unequivocally celebrating the religious
freedom of the mosque’s sponsors on one day, while embarrassingly insisting
the very next on the qualification that he “was not commenting…on the wisdom
of the decision…” The wisdom of the decision was, however, the only matter ever
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)—however
principled and passionate—was both obvious to all and entirely off-point. His
undoubted intellectual powers (and those of his agile speechwriters) came up
dismayingly short in helping us bridge the discursive chasm between his
disjointed intercessions.
Among the dozens of interventions on the subject by prominent political
and journalistic figures, perhaps the most trenchant was that of N.Y. City Mayor
Michael Bloomberg. He not merely defended, but advocated construction of the
cultural center/mosque. He did so not on the anodyne grounds that the site’s
owners had a legal right to do so, but because building such a center, especially
on that hallowed site, would powerfully send “a great message…of tolerance and
openness [to] the world.” By the “world,” moreover, he notably meant not only
those Muslim lands where the state routinely represses its ethno-religious
minorities. No less important to Bloomberg was the message an Islamic center
would send to Western countries, where the burqa and minarets were then
being outlawed, and where discrimination against Muslims was apparently
increasing in other ways as well. His decision to defend the mosque did not
require him, of course, to survey the hypothetical terrain in which it might be
wrong to exercise legal rights to use one’s real property for religious purposes
(or anything else). Bloomberg’s stance put him on the side with not only the
14
better arguments, perhaps, but also the ‘easier’ ones, or at least the most
familiar, the most readily formulated and defended within our standard
normative terminology.
This disappointing episode painfully revealed the absence of even a
preliminary vocabulary for acknowledging something like ‘legal-rights-aremaybe-being-invoked-wrongly.’ It surely behooves us to find a language by
which to more fruitfully entertain that possibility. This book is a modest
invitation to that end. All of my chief illustrations of rights to do serious wrong
display this same perplexing property: they arise in situations eliciting strong
intimations of an accompanying moral duty unacknowledged at law.
They also reveal the lack of any satisfactory terms for public expression
of that duty. Though ordinary language often offers a useful window into
common morality, as I later suggest, everyday speech nonetheless here fails us.
It fails as both a material source for reflection on our sentiments and practices,
and—through this linguistic and reflective failure—as guide to action, policy,
and law as well. It is as if, at crucial moments sometimes, we were those
primates who, though lacking true “speech” as our species employs the notion,
are nevertheless clearly given to intense indignation at perceived injustice, as
when—with no apparent reason—experimenters treat them unequally, one
better than another in the next cage.
A better lexicon would help us discern when we should hesitate in fully
exercising our rights. It would also help us glean when it may be wrong to
hesitate, wrong to be (by others) made to feel such hesitation. For instance,
homosexual and interracial couples have a legal right to engage in public
displays of affection. Yet except in university towns and bohemian enclaves of
large Western cities, such people report that they regularly feel inhibited from
doing so. Gay members of the professions often report that their colleagues now
tolerate and work amiably alongside them. Suspicions remain, however, that it
may not be prudent to appear with a same-sex partner at informal events—say,
a Christmas party. Here, some of us will feel a moral duty (as well as personal
inclination) to go out of our way to facilitate their exercise of these rights. In
anticipation of such a social gathering, we may tell a gay colleague that we look
forward to the opportunity of meeting his or her partner. We feel a
responsibility, in other words, to encourage her to act upon this right.
That is partly due to our fear that others present may still feel somewhat
uncomfortable about the exercise of this particular right. There is little
suggestion, however, that professional brethren at such gatherings would think
or describe the presence of a same-sex companion—entirely lawful, of course—
as “inappropriate,” “offensive,” much less “wrong.” The ensuing interactions
might simply make a few colleagues, especially older ones, mildly ill at ease. It is
powerful testimony to the vast progress in these areas that legal scholars at our
most distinguished universities can today seriously describe this putative
problem as “the civil rights issue of our time.”
It is noteworthy that, with some regularity, we lawyers privately
describe certain rights as “disfavored.” This casual expression is not a legal term
15
of art, and we use it in two rather different senses. At times we simply mean that
people tend to invoke a given right mistakenly, because they inaccurately
understand its terms and purposes, believing that it extends to their situation
when it does not. The right thus often generates an unacceptable number of
meritless, even frivolous causes of action, for instance, or prompts people to
undertake activities which will subject them to liability.
More pertinent to present concerns is that we sometimes also employ
the term to refer to rights defined in ways that, we believe, misconstrue the
problem they were designed to address. Legal redress is thus genuinely
available to those usually asserting these rights, so that there is no serious
problem of “false positives.” Yet there remains a widespread sense about these
cases that the particular right is itself somewhat misconceived, so that it is
unresponsive (or only very imperfectly responsive) to the underlying policy
issues that lawmakers hoped to tackle. Though the right-holder acts consistently
with the law, within his rights, he does so in ways we consider misplaced, even
sometimes wrongful. Here too we are averse to granting the right-holder what
he seeks, though we are obliged reluctantly to acknowledge that his claim
satisfies the factual and doctrinal predicates for what he seeks.
Though these two circumstances differ importantly, in both of them we
wish—in varying degrees of candor—that social pressures were brought to bear
upon the claimant to dissuade him from asserting his right. Like a house guest
who has overstayed his initial welcome, we wish he would go away.
……………………
Recall my early discussion of the proposed mosque and Islamic Cultural
Center near the site of the former World Trade Center. In medieval England,
ownership of property in land was a right associated with a distinctive role and
stature in the social order. That is not the case in contemporary America, nor in
most other Western societies. This single contrast suffices to show that the
linkage between particular rights and responsibilities is, to a great extent,
historically contingent, a social construction, and therefore cannot be deduced
in the purely conceptual manner Waldron attempts. In very few circumstances,
if any, can one accurately say that a given right is truly “inextricable” from a
corresponding responsibility, irrespective of time and place. This is true even
for professions whose essential purpose—human healing, for instance, however
understood (for physicians)—remains invariant, at least when stated in such
general terms.
Today, compared to other forms of wealth, land does not accord its
owner any unique dignity. The essence of all property—if it has one at all—is
simply the owner’s power to exclude others. Most modern accounts of the
nature of property, in fact, conceptualize it in ways that suggest no essence at
all, but rather as a “bundle of sticks,” a metaphor useful in suggesting how its
elements are susceptible to periodic addition, subtraction, and rearrangement.
In fact, the precise contours of rights in property are always in flux, subject to
change in the law, for instance, of zoning, housing codes, rent control, public
16
nuisance, environmental protection, air rights, “wastage,” and inheritance,
among others.
Private property is central to market society, of course, is probably its
most essential concept and institution, in fact. Still, nothing in today’s common
parlance would suggest that one’s right in a particular piece of land bestows
upon its holder an inherent dignity of the sort evident in all of Waldron’s
responsibility-rights, or in the modern state’s “responsibility to protect” its
citizens from crimes of atrocity. After all, its owner may lawfully put his land to
disparate uses, none more essential or archetypal than the rest, none logically
or conceptually derived from its very nature. Rights in land thus do not
designate for its owner any single, unique societal function.
Other future and partial current claimants have a stake as well. This
means that whatever dignity was once associated with real property ownership
would today have to be subdivided, and potentially sliced rather thin. Thus, for
instance, the right to possess and use land at a given moment cannot entirely
foreclose the likely concerns of future owners. Land is today also readily
alienable from one person to another in exchange for money. And through
“eminent domain,” the state may “take” it at any point, in exchange for due
compensation, to achieve any number of “public purposes.” All this further
negates the possibility that land, through some feature fundamental and
intrinsic to it, accords its present owner some elevated social stature, much less
any special moral worth.
Real property owned in common with others does often attach informal
responsibilities to rights of use, duties effectively enforced in extra-legal ways.
Economists traditionally viewed private property as the optimal solution to
overuse of a “commons.” Empirical studies now suggest, though, that no such
“tragedy” need ensue if traditional moral norms firmly regulate its usage. Such
customs may effectively discourage abusive exercise of rights to its exploitation,
establishing a stable equilibrium among competing claims on a shared bounty.
There would appear to be no special social dignity, moreover, in the exercise of
rights to share in a commons, presumably because these rights extend to so
many people, often to all those resident in a particular locale, though exceptions
may sometimes arise in localities where such sharing becomes the basis for
collective identity.
Waldron’s general point about the dignity and inherent duties
associated with exercising certain rights—but not others—nonetheless likely
influenced the public dialogue over possible use of the Ground Zero locale for an
Islamic Cultural Center. The duties associated with real property rights have a
fluid, inconstant character that may have led many Americans to assume we
could readily impose further obligations—based in no more than a widelyshared, intensely-felt sense of moral appropriateness—on the owners of this
piece of land. Though the technical legal vocabulary of bundles finds no place
within ordinary parlance, most people nonetheless apparently viewed the right
to build a mosque in that particular locus as merely a particular “stick”
unproblematically plucked from such a sheaf, already ever-shifting.
17
Still, it is a right that we must formally pluck by law, not through the
rough justice of extra-legal intimidation, notably the veiled threat of arson. Since
the right to own land subjected its owner to no special, intrinsic
responsibilities—unlike parenting or soldiering—its owners acquired no
elevated stature in possessing the land, and so did not subject themselves to any
correspondingly enhanced duties. This intuition informed the views of those
other Americans who found the mosque’s location unobjectionable, for it
suggests that the owners had no particular responsibility to use their property
in any lawful way other than they might desire.
On the other hand, it is true that the more familiar, 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 follows that a piece of
property might become deeply imbued with a certain public purpose,
precluding its use for entirely private ends. The state might then formally “take”
this piece of turf, duly compensating its owner.
No one argued, however, that the federal government or City of New
York should go that far, acquire the property outright. And yet most people
clearly wished to see its use restricted in ways, they acknowledged, our law
could not otherwise constitutionally effect. It was therefore difficult to
conceptualize, within any of the legal terms readily at hand, the widespread
public apprehensions over siting the Islamic Cultural Center, the diffuse sense
that its use in this fashion would constitute abuse. Neither did ordinary
language, as I earlier observed, offer up any other satisfactory terms with which
to speak of the moral issues and responsibilities many felt to be powerfully at
stake.
…………………..
A few words on Montesquieu:
It was Baron de Montesquieu who offered the first sustained analysis of
the relations between law and “mores,” which he took to mean widespread,
everyday social practices embodying prevailing moral sensibilities. These
relations, on his account, were multiple and intricate, yet lent themselves to a
simple three-part typology, a helpful starting point for my own, to follow.
Montesquieu’s original, 18th century prose style strikes the contemporary
reader as ponderously cumbersome, and the pertinent passages appear far
apart. So let us turn for guidance to an able recent interpreter:
First, Montesquieu argues that when mores are good, or “pure,” as
he says, laws are often unnecessary. The early Romans, for instance, had
no law against embezzlement. And when embezzlers started to appear
on the scene, they offended the mores of the Romans so much that the
law’s demand merely for the restoration of goods seemed like a great
penalty. Thus, as long as corruptions offend mores, then the law need
18
not respond to harshly. Laws are simpler to the extent that mores are
purer. As mores become more corrupt, then the law must anticipate
more problems.
The Frenchman’s next example involves Roman laws regarding
guardianship of a ward and inheritance. Early Roman law gave
guardianship to the closest relative—the person who most often was
entitled to the inheritance. Montesquieu argues that these laws
reflected the fact that the Romans had no worry that in such a system
the life of the ward “was put in the hands of one to whom the ward’s
death could be useful.” Later Roman legislators were forced to take
steps that anticipated plots to kill the ward for his inheritance—“fears
and precautions unknown to the first Romans.” In the last example, we
learn about Roman law’s recognition of legitimate causes of the
repudiation of a husband by a wife. Among these was the whipping of a
wife by her husband—a chastisement “unworthy of a freeborn person.”
Montesquieu indicates that later Roman laws did not recognize this as
a legitimate cause for repudiation. The Romans had exchanged the
mores of the East for those of Europe.
Let us look back at these examples—together they provide a sober
lesson about the fundamental weakness of law in relation to mores. In
the first example, we see that because mores are offended by the crimes
of embezzlement, Roman opinion makes a minor penalty seem great…
Next, when mores become more corrupt, the law must consider things
that it never had to before. The law began to punish crimes that mores
themselves used to prevent. Finally, mores can become so corrupt that
the law simply gives up. The law no longer recognizes corruption as
corruption—it tolerates what mores have come to tolerate.
Montesquieu’s striking observations and comparative reflections are
admittedly unscientific and hence today largely ignored by social scientists.
Certain aspects of his analysis nonetheless merit rehabilitation if we can
reformulate them in ways more systematic and analytically careful. Though we
need not accept his final counsel, of course, he seeks to chasten our hopes for
law’s possibilities, its capacity to chart society’s direction indifferently to the
prevailing ethical sensibilities of an age and the forms of behavior so endorsed.
In none of the three scenarios he envisages does the law display any nontrivial
power to prevent the degeneration of mores. Rather, it is mores that give the law
whatever force it may have, if only for a time, enabling it to fulfil its formal
promise. Legal rules can prohibit and punish perceived violations of social
mores yet cannot staunch these abuses at their source, nor even long hold them
at bay. For in the end, the law will simply, necessarily, reconcile itself to
consistent violations of historic mores by no longer regarding them as such,
much less seeking vigorously to combat them.
Montesquieu concludes that as long a potential tyrant does not directly
offend our mores, to which we have become ardently attached, or simply
complacently accustomed, he may otherwise revamp our laws in ways
19
profoundly inimical to our freedoms and our welfare. Most people often care
more, in other words, about their mores than about the laws, especially those
governing aspects of social life remote from their most palpable, immediate
experience. This is not, however, the only way to conceive the range of potential
intersections between law and mores. So, before delving into more specific
inquiries, in all their moral richness and empirical complexity, let me sketch out
a few other possibilities.
Thus, imagine a two-by-two table, with the two axes identified by the
possibility and necessity of legally codifying a social norm of communal morality.
First quadrant: where it is both possible and necessary for law to step in
and supplement weak norms of common morality, there’s no problem. The law
can fill the breach where informal norms fail to regulate conduct satisfactorily.
Second quadrant: it is impossible but also unnecessary that law assume
an active role in normative ordering, because common morality is at work in
successfully moderating the exercise of overbroad rights. The world is, again, all
sweetness and light.
There is usually no problem in the third quadrant either, where it is both
possible and unnecessary for law to intercede—unnecessary, again, because
norms of common morality are well-entrenched, effectively dampening abusive
exercise of a given right. The only complication is that if law does nonetheless
interpose itself, it may not necessarily reinforce healthy norms but rather
“crowd them out,” a possibility later explored. In that case, legal entrenchment
of moral duty is possible but undesirable.
The serious problems arise only in the final quadrant, where legal
absorption of a social norm is both necessary and impossible. Here, informal
processes of equilibration between law and morals simply fail. The law cannot
effectively intercede to solve critical regulatory problems. At the same time,
extra-legal norms prove equally inadequate in addressing them. Dire
consequences may loom. It is often difficult to know when we face this
predicament, and even harder to address it. Several situations of this sort may
spring readily to the reader’s mind.
One of these near-insuperable predicaments may exist, for example, in
the uncertain efforts of the United Nations to induce greater restraint by
multinational corporations operating in poor, political repressive countries.
These are places where national law or its non-enforcement often allow such
companies to operate at ethical standards well below those imposed by richer
democratic countries. Such standards seek to protect labor, the environment,
and political rights. In the judgment of many, neither informal norms nor formal
law have here proven entirely satisfactory to essential regulatory tasks.
Some of my case-illustrations of rights to do serious wrong fall
felicitously into the boxes where social norms fill the regulatory breach. This is
the case, for instance, with the right to inflict civilian harm in war, and the right
to decline essential life-support. Further legal restriction appears largely
unnecessary, undesirable, or impossible. Stringent normative ordering, of some
sort, remains necessary, though. The reason for law’s under-inclusiveness of
morality matters little here. If private ordering proves insufficient at first, moral
20
entrepreneurs will often go to work—as with consumer mobilization against
Bangladeshi “sweatshops”—in closing the gap, strengthening dissuasive norms
without enlarging law’s formal prohibitions.
The Law’s Ascendance in Modern Western Society,
And the Decline of Common Morality—or of Any Need for It?
There is some reason for skepticism over whether, in the contemporary
West, the preservation or creation of an acceptable social order requires any
shared, nontrivial sense of morality at all. At least since Benthan, a widelyshared view has been that it does not.
This has in fact been a leitmotif across several competing schools of
modern legal and political thought. Liberal theory in particular—while directing
a steady stream of criticism at particular laws—has virtually never challenged
the supposition that the law in general remains “our last best hope” of securing
a decent society, whose members are at least passably happy. Even libertarian
forms of liberalism, ever fearful of the state’s encroachment beyond its due
domain, consistently stress the importance of official protection for “the private
realm,” secured through the law of contract, property, and of the family.
The view that law’s potential contribution to social amelioration is
inherently very limited arises largely from those to liberalism’s left and right. It
emerges from Marxists, denouncing the fraud of “bourgeois liberal legality,” and
from “historicist” strands of conservatism (from Burke and Savigny through
Oakeshott) quite anti-modern in spirit. This latter strain of thinking consistently
celebrates “the social organism,” its spontaneously regenerative capacity for
preserving and gradually improving its health along with that of its members.
Only such traditionalist diagnoses maintain that this process, operating
independently of the state, is inherently if not quite invariably superior to the
law in attaining a morally satisfactory polity and society. (And only the careless
reader will be tempted to assimilate this book to that peculiar intellectual
tradition, with which the present argument has virtually nothing in common.)
A view today often expressed is that positive law should essentially
supplant most if not all of common morality as the basis of normative ordering.
It follows that there is little reason to be closely concerned with identifying the
points of strength and weakness in its sociological supports. Since the very idea
of common morality, on this view, is something of a quaint Victorian cobweb, its
importance should and will decline as societies discover that they must rely ever
more upon the law. Habermas thus strongly states:
Today legal norms are what is left from a crumbled cement of society; it
all other mechanisms of social integration are exhausted, law yet
provides some means for keeping together complex and centrifugal
societies that otherwise would fall into pieces.
21
Consistent with prevailing scholarly terminology, let us call this view
“legal centralism.” Though rarely stated quite so plainly, it remains widely-held
among legal thinkers, both in the U.S. and in many other lands. Centralists
believe that the extra-legal norms by which we appraise and guide others’
conduct usually display in the words of J.L. Austin’s (an early, influential legal
positivist), “uncertainty, scantiness, and imperfection.” These properties render
common morality unworthy of much solicitude by the law. Codifiers like
Bentham wished to make every possible human action the subject of legal
regulation. A more contemporary author similarly contends that “[t]he more
coherent and consistent a legal system, the less the need for…customary rules
and practices.” Law’s deference to customary morals is inherently suspect
because “the relevant customs prove to be those of an influential group of
insiders.” These are morals that the law expressly incorporates, such as
prevailing “customs of the trade” (within contract disputes) and in industryspecific “standards of care” (in negligence).
The law relies on common moralities, this study shows, even when it
does not expressly “incorporate by reference” a moral terminology already
prevalent in society at large or pertinent sectors thereof. Doubts about law’s
deference to conventional and often traditional ethical sensibilities will be still
greater here, in fact. For the judiciary is not authorized in these circumstances
to monitor their workings and so to ensure their objective “reasonableness” or
general moral acceptability. When tort and contract law presumptively defer to
current social practices and the prevailing moralities these embody, the law
remains at least nominally sovereign, insisting in the final analysis upon its own
criteria for determining whether the law should admit any such practice may to
its domain. In the situations of present interest, by contrast, the law imposes no
such formal limit on prevailing moralities as its guide and indeed rides largely
upon their back, unsure of where, in what direction, they may move.
The socio-legal configuration on which I focus is therefore different
from what we observe in tort or contract and—in many circumstances, if closely
considered—would likely also prove more controversial. To let informal norms
limit the exercise of our formal rights is anathema in the view of most modern
legal thinkers who have seriously considered the matter. When the social
practices by which we enforce traditional forms of common morality all but
prevent someone from exercising her rights, these apprehensions are wellwarranted—unless, of course, we regard the rights themselves as morally
indefensible.
In recent years, skepticism toward alternatives to legal sanctions
against disfavored conduct has focused on the dangers of so-called “shaming
sanctions,” analogous to the punishment stocks of Renaissance Europe and the
ducking stools of colonial America. Such sanctions were formally imposed by
law. But they were intended to invite more spontaneous public expression of
indignation toward their human targets—in full public view, unlike when
punished via fines or incarceration. Today, shaming sanctions may include
mandatory bumper stickers on automobiles of those not long before been
stripped of their license, for driving while intoxicated. Even when the law
22
continues to employ its formal procedures in imposing such sanctions, there is
serious concern that these violate the wrongdoer’s essential human dignity, as
we modern liberals understand that notion. When we rely upon public shaming
and informal social stigma without such formal procedural protections, these
dangers grow still greater. It is precisely these nonlegal sanctions which this
books strives to better understand, thereby inevitably sometimes casting them
in a more sympathetic light.
Shame and stigma are the stuff of archaic social orders, not the
legitimate tools of liberal justice, we are told. Sanctions of this nature “typically
involve a type of mob justice and are problematic for that reason alone,” writes
Martha Nussbaum, echoing legal historian James Whitman. “Justice by the mob
is not the impartial, deliberative, neutral justice that a liberal-democratic society
typically prizes.” From this standpoint, law alone is the reliable source of public
order; it is the only truly legitimate basis of personal obligation. And the criteria
by which we appraise the law’s defensibility in a particular context must remain
wholly independent of prevailing “prejudice,” of the shifting empirical contours
of lay indignation at perceived injustice. Such influences are always potentially,
perilously, at odds with our commitment to “critical” morality and its “rule of
law values,” these authors hold.
Whenever the law sees fit to grant wide berth to rights-restraining
norms, especially where originating in traditional religious worldviews, its
drafters and interpreters need carefully to assess how much trust to place in
processes largely beyond their control, about which they should therefore learn
as much as realistically possible. No one should deny that there are times when
legal rules rightly override the prevailing moral sensibilities of a given
community, where these threaten vital human interests. The unacceptable
standards may simply be those of an insular sub-community, deviant in this
respect from standards within the wider society, embodied in its law. Such is the
case, for instance, with members of the Jehovah’s Witnesses, whose adult
members regularly refuse to let their children receive blood transfusions
essential to survival.
These are situations where the law clearly cannot rely on fellow
members of the relevant sub-community to effectively resist the exercise of legal
rights by one of their number—here, the parent of a legal minor. The law
strongly presumes that a child’s parental guardians will act responsibly when
exercising the well-accepted right to accept or reject medical treatment. The
legal system nonetheless intercedes when there is a compelling basis to rebut
that presumption. Here, prevailing moral sentiment is as misguided as legal
centralists and positivists like Austin assume. In seeking an adequate regulatory
stance, the law cannot rely on these sentiments to provide the needed practices
of informal constraint.
From this standpoint, the question becomes: when if ever is it defensible
and desirable for the law to place so much reliance on something so
questionable as extra-legal morality, over which it retains so little control?
Whether that morality is of a given sub-community or the general population,
the concern may be equally acute.
23
This formulation immediately invites objections, however. It is one that
anyone but a law professor would regard as megalomania on our part. From any
other perspective, the opposite question would surely be more compelling: what
portion of the larger normative order and its enforcement ought we to entrust
to the legal system and those claiming professional authority to administer it?
Our seeming hubris here finds expression as well in the flurry of
prominent legal theorizing on the subject of “law and social norms,” discussed
before. work displayed much greater interest in how law might reconfigure
common morality than in how such morality regularly renders law—and hence
those practicing or professing it—rather less important than we would like to
suppose. There are exceptions, but even these rare authors consistently lay the
emphasis on how a regulatory reliance on nonlegal norms is more efficient than
on legal regulation. Yet as I’ve indicated, there is a great deal more normatively
here at stake than efficiency.
At this point, skeptics of policy reliance on common morality will
inevitably insist on dredging up the familiar story about how “modernity” has
fatally eroded the social foundations for any meaningful measure of common
morality. Such critics will claim that there is no reason to believe that the little
clans and insular coteries examined in those discrete micro-ethnographies
represent something broader than themselves, offer any larger explanatory
lessons. If the efficacy of modern law really rests on any robust sense of widelyshared morals, then we are doomed.
The aspect of modernity deemed responsible for this plight will range
far afield, according to one’s taste in social theory. It stretches from
secularization and spiritual ‘disenchantment’ (say theologians and conservative
culture critics) to alienation by the capitalist cash nexus (Marx), to anomie and
atomization (Durkheim), bureaucratic rationalization (Weber), instrumental
reason (Horkheimer and Adorno), Panoptical surveillance, disciplining
discourses, regimes of truth, and “biopolitical” public policies (Foucault). Their
differences notwithstanding, all these accounts of man’s fate under modernity
make it difficult if not impossible to maintain the view that any genuine form of
common morality could conceivably exert any significant restraint on how we
think and act in exercising our legal rights. The echoes of such morality, if it ever
truly existed, have grown too faint, the social mechanisms by which it might
regulate us too feeble.
It is often immaterial, though, whether an entire national society does or
doesn’t come under the strong influence of a single, coherent common morality,
the sort contemplated by Durkheim and the early socio-legal scholars in
speaking loosely of how law embodies pervasive moral norms. The apposite
question is more often simply whether a given morality is shared by sufficient
numbers of pertinent people so that their activities may be regulated with legal
rules that work in reliance upon it, in congenial conjunction with it. The relevant
people often do not constitute “society at large,” though that is sometimes so,
but rather those occupying very particular places within society, from the
divorcing parents of young children to members of distinct vocational groups,
24
such as physicians and military officers (to all of whom Chapter 9 devotes
sustained attention).
Their shared morality exerts its wider social impact through how their
activities affect the rest of us. Among members of these groupings, like the
Shasta County cattle farmers and herders, there often develop common
standards of propriety, grounded in robust interactive networks. Whether these
social structures and the normative habitus they sustain are, for a given
problem, strong enough to bear much regulatory weight is an empirical
question, to be investigated accordingly. Its answer will have implications for
assessing the usefulness of the present theory, its range of practical policy
relevance.
If one again surveys the several forces tending to drive law and morality
apart, those discussed by Chapter 2, it apparent that they are not consistently
stronger in more “traditional” societies than in our own. In one versus the other,
the inherent limits of language are no more acute, for instance, nor are human
motives any more inscrutable. Neither are the risks of unintended harms from
prohibition likely any greater. Not the differences between modernity and
tradition, but rather other considerations account for the considerable empirical
variation we observe in the magnitude and incidence of these centrifugal forces.
Modernity and the quality of ethical experience it affords remain
relevant, even so, to understanding the relation between common morality and
the law. Bearing notably significant on this relation is the question of how many
of our legal entitlements it is socially optimal for us to know about. This large
question turns into a more precise, specific concern over the desirable measure
of “acoustic separation” between rules of conduct and rules of judicial decision,
a familiar preoccupation within legal thought. The legal systems of
contemporary Western societies rely considerably more on acoustic separation
between these two rule-types than do many earlier socio-legal orders. Yet in
important respects, today’s post-industrial societies also find such separation
more difficult to defend in legal theory and to maintain in practice.
The separation sits embarrassingly at odds with the principle, inherent
to the “rule of law,” that all legal rules must make themselves known to those
they govern. Any departure from that principle carries the whiff of “secret laws,”
a trademark of dictatorships everywhere. It is also more difficult in practice to
keep citizens ignorant of the rules by which their disputes will be decided. This
is partly due to their higher educational levels and their ownership of advanced,
inexpensive communications devices, enabling easy access to vast information,
but also to more structural features of modern society as such. The gaps
between rules for conduct and rules of dispute resolution present less serious
problems, it appears, in most legal systems of pre-industrial and non-Western
social orders.
For example, traditional Jewish law prohibited a significant number of
wrongful acts, considered quite serious, which it nonetheless declined to punish.
People were aware that they did not risk judicial sanction for committing such
misconduct. Consider the situation, for instance, where the husband of a young,
orthodox Jewish woman inexplicably disappears. To lawfully remarry, she must
25
present the court with evidence of his death, evidence of a sort essentially
impossible to obtain; otherwise, she must wait many years. She remarries
nonetheless.
The conduct rule, prohibiting her remarriage, would seem to require
that when the fact of her second nuptial comes to a court’s attention, the judge
must invalidate it. Yet though the law clearly prohibited her misconduct ex ante,
courts did not impose this remedy ex post, though it might seem to follow
logically, inexorably. The decision rule was more lenient, in other words, than
the conduct rule, which remained unmodified. Women apparently faced the
predicament with some regularity. And it was well-known that the temptations
to illegality it aroused were looked upon by courts with a sympathetic eye.
Judges nonetheless did not fear that their lenity toward the unlawful
behavior would lead to its increased incidence. The explanation reveals a good
deal about the relation between law and common morality, not only within such
traditional societies but, by implication, within more modern ones as well.
Rabbinical law was less concerned—as contemporary law cannot afford to be—
that people would exploit their knowledge of the slippage between the two
kinds of legal rules, or more generally, between common morality and the law.
This confidence arose from the dual nature of this Jewish law. It was at once an
officially-enforceable rulebook and also a more diffuse corpus of religiouslyinspired moral teachings, including the duty “to reprove your neighbor, or you
will incur guilt yourself.” Courts could assume that most people would not take
advantage of the discrepancy between conduct rules and decision rules, or of
ambiguities at the margins conduct-rules themselves, at points where common
morality continued to staunchly condemn what the law perhaps arguably
allowed.
Devout Jews would not casually dishonor moral strictures they
acknowledged as morally binding. Adherence to these remained essential to any
measure of social esteem, even continued membership, within the religious
community. This allowed the law to become more merciful at the moment of
enforcement than on its face, in application than on the books. There was a
single, simple reason, legally unspoken yet widely appreciated, why decisional
rules could afford to forgive so much more than still-stringent conduct rules:
there existed a wide range of stigmatizing practices, effective in restraining all
manner of wrongs. These practices embodied a comprehensive system of
behavior grounded in a religious doctrine publicly endorsed by nearly all. In
other words, the law occupied only one corner of a larger normative space,
across which most were perfectly prepared to serve as their “brother’s keeper.”
The same could be observed of many other ancient, medieval, and nonWestern societies. There too, theological sources define both the legallyenforceable standards for individual behavior and the shared practices of an
entire community. This type of sociological armature allows the law to indulge
disfavored practices more generously than does common morality. Law can do
so in recognition that common morality will, through less formal methods, pick
up the slack. We moderns, and we lawyers especially, are often surprised and
puzzled to learn that such extra-legal standards of behavior, congruent with the
26
law’s but still more demanding, possess effective enforcement powers of their
own. These run on a continuum from backroom rumor and schoolyard
scuttlebutt to small-group ostracism and national exile, from polite reproach to
“social death.” In many places, some of these sanctions are in fact more potent
than any at law, though exile itself—as in ancient Greece—often entailed precise
legal procedures.
To accept the preceding analysis is to see why we must qualify the
widespread view that religiously-inspired legal systems aim to “occupy the
field” of normative ordering. They purportedly do this by rejecting any
demarcation of legal duty from wider obligations—religious, moral, civic. The
experience of Hebrew law, from ancient Israel through Eastern Europe of the
early 1940s, shows how and why this claim is imprecise, to the point of error.
What this conventional wisdom fails to recognize is that precisely because
religious doctrine permeates literally everything and because virtually
everyone embraces it, those who regularly speak up in its support will include
not only professional judges, but many ordinary members of society. The
reproach of objectionable conduct in immediate others—today a nearantediluvian practice we regard with great apprehension—is a social and civic
duty. This grants courts a certain space for lenity in deciding disputes.
Contemporary Western society presents a special challenge for the law’s
relation to common morality. This is because acoustically separating decision
rules from conduct rules becomes at once more important and more difficult.
Even as legal regulation grows increasingly complex in many areas, those
subject to it find it ever easier to anticipate how the law is likely to address a
dispute in which they may someday be embroiled. That is due in great part to
the structural differentiation of society. Participants in a given sphere of
regulated activity—oceanic cargo-container shipping, for instance—will be
repeat players, with a strong interest in following even seemingly small changes
in rules affecting their relations with consumers, competitors, and the state. This
makes it nearly impossible for courts “in action” to employ rules of decision any
more indulgent of misbehavior than conduct-rules “on the books” without fear
of affecting the underlying, regulated behavior. Nearly overnight, decision rules
inexorably become conduct rules, because knowledge of changes in all pertinent
rules, decisional and behavioral alike, spreads almost instantly within these
sophisticated professional and elite post-industrial milieux.
Thus, for instance, any major I.R.S. regulatory ruling will be quickly
incorporated into the standard operating procedure of tax departments at every
Fortune 500 company. If the ruling suggests that the Service will now adopt a
lighter touch to enforcement on a given issue than the corresponding
substantive rule had seemed to mandate, a company’s behavior will within a
week have altered accordingly. It is the professional duty of every corporate
counsel to apprise her client of exactly such legal shifts, often subtle yet
potentially of great commercial consequence. It is no coincidence that highly
dynamic sectors of modern Western economies and societies, certainly those
attracting great amounts of investment, tend to be those most highly lawyered.
The result is that acoustic separation between decisional and conduct rules is
27
particularly difficult to maintain concerning modernity’s most characteristic
activities.
Yet just as these features of modernity make acoustic separation ever
harder to attain, separation becomes in certain respects more important to law’s
efficacy. It is now more dangerous for a society that its economic elites,
especially, so well understand the particular sites where law demands less of
them than prevailing moral sentiment may allow, or than law would likely
permit if the activities were better known to a larger public. This intimate
familiarity with the cracks between law and common morality is more perilous
because the scope of such morality often credibly appears no longer so
comprehensive, its grip no longer so powerful, as under many historical
circumstances. Interactions among players in such large and differentiated
fields of contemporary society often remain too diffuse and acutely competitive
to permit the kind of intensely-shared moral sensibilities evident in those few
micro-ethnographies (diamond and tuna merchants, neighboring farmers and
ranchers, etc…) or in some of my own brief empirical illustrations of this
phenomenon (e.g., military officers, hospital staff).
Acoustic separation was hard enough to maintain in many pre-modern
circumstances, with regard to issues in the ordinary life of everyone: birth,
death, and marriage. There did not exist a large class of specialized legal
professionals. But one could scarcely get through these basic, inescapable
aspects of life without knowing the law’s essentials, imparted from sources
easily available. In more modern societies, acoustic separation proves difficult
to sustain as well, but for quite a different reason. In the contemporary West,
separation is absent from legal rules of exactly the opposite variety, those
directly touching discrete, highly specialized spheres of activity, albeit ones
often carrying profound repercussions for society at large.
We modern Westerns too, like others elsewhere and before us,
nonetheless regularly continue to deploy shame and stigma, where we may, to
restrain the exercise of disfavored legal rights, in the many ways and contexts
this book illustrates. These longstanding features of extra-legal regulation
within pre-modern society importantly persist, frequently in propitious ways,
within the contemporary West. Social pressure against the exercise of
disfavored rights regularly arises from normative ideals quite novel, in
historical terms, inspired for instance by principles of international human
rights. Contemporary methods of push-back, by means of ‘moralizing’ an issue
(as explained), are no more conservative than its aspirations. And its agents
regularly find ways, through the latest in “new media” technologies, to veritably
shout from the rooftops, at times to great effect.
These new methods of resistance to objectionable rights-exercise differ
greatly from those described in all those micro-ethnographies. People in those
distinct little locales generally employ subtler devices of morality-enforcement,
suitably honed to perceived needs for “mechanical solidarity” with a close-knit
community—its members already tightly united religiously, vocationally,
geographically. The modern West, viewed macro-sociologically, constitutes
28
more than the sum of all such insular communities, lined up each beside the
next. And most of us do not dwell within any of them, for that matter. To
theorize, for modern Western society, the relation of law and common morality
beyond such discrete communal confines therefore requires a different
approach.
When legislators and judges in such societies liberalize the law, in a
philosophical sense, they deflate its aspirations to govern areas of conduct
which they decide to consider “purely personal,” if still wrongful in the judgment
of very many. The progressive retraction of law’s reach, by designating ever
broader swaths of social life exclusively a “private matter,” is a defining feature
of liberal modernity. Yet as the law follows this trajectory ever further, those so
governed find themselves compelled, paradoxically, to pay ever closer attention
to how dependent the public realm—still intensely law’s preoccupation, of
course—becomes for its satisfactory functioning on the extra-legal practices by
which common morality is then increasingly sustained. In this sense, common
morality becomes ever more important over time in governing how we moderns
exercise our legal rights, in ways affecting interests and ideals still very much of
acute public concern.
To instill a strong sense of personal ethics among all citizens, American
lawmakers, until the recent past, displayed considerable confidence in formal
instruction on “moral and civic education,” traditionally understood, within the
public schools. Today, ‘sophisticated’ policy-makers implicitly place their
confidence instead in the calculative, tit-for-tat reciprocity to which Putnam
alludes. Current social science, economic and otherwise, has grown most
comfortable with this more modern, game-theoretic “mechanism,” often
apparently regarding it as the sufficient basis for interpersonal cooperation and
social order. Scholars now plumb these dynamics in application to law-related
behavior no less than most other sorts. Faith in reciprocity of this variety
regards moral behavior, indeed social order itself, as merely an “emergent
property” from individual acts prompted chiefly by calculations of self-interest.
The question very much remains, though, of how much we still implicitly
also rely for a minimally acceptable social order—in ways such social science
cannot adequately acknowledge—on a common morality demanding more of us
than tit-for-tat reciprocity, more than the return of good deed for good, bad for
bad. A willingness to forego private self-interest of any sort nonetheless
occupies a central place in all three leading Western theories of morality:
Kantianism, Benthamism, and virtue ethics. Could it really be that a society
morally acceptable to us today is possible without some influence on human
conduct from any of these longstanding, enduring intellectual legacies? Their
profound differences notwithstanding, all these brands of moral theory—Kant’s
and Bentham’s both uniquely associated with modernity—aim to broaden and
enliven our sense of responsibility to others at moments when we must decide
how to exercise our rights, in ways likely to arouse indignation in others.
Utilitarianism, for instance, asks us to weigh the consequences of our
individual conduct for the welfare of all others. To this end, it does not merely
seek to “align incentives,” even our self-interest in a reputation for ethical
29
integrity. And one need scarcely look very far afield—though readers will differ
over where they lie—to identify sites of moral desolation within the modern
social order, in places high and low, where people confront bleak prisoners’
dilemmas far more than cooperative stag-hunts. These are precisely the places
where we are most often tempted, as others will surely see it, to abuse our rights,
and to become victims of others’ such abuse.
Liberal modernity does not entail law’s linear retreat from the
incorporation and enforcement of common morality. Rather, there are
conflicting pressures at once in both directions. Sometimes, what the law once
treated as a matter of public concern will now be left to unofficial mechanisms
of moral ordering. Conversely, common morality at times shifts in ways
prompting law’s bold advances into issue-areas hitherto left to the workings of
precisely these informal forces. At these points, lawmakers have come to believe
that private ordering restrains the exercise of legal rights in morally
unacceptable ways.
This second type of change, to offer a concrete example, is apparent in
how American law, like that of most Western societies, now limits the scope of
medical “paternalism.” In its most extreme form, medical paternalism entailed a
normative stance authorizing the physician to act on a patient’s best interest, as
the physician understood it, with limited regard to what the patient herself
desired. Ever since the Hippocratic Oath, at least, the medical profession has
valorized the patient’s physical survival above all else, in the face even of
imminent death and permanent, unendurable pain. This stance left medical
personnel with little opportunity or authorization to acknowledge a patient’s
moral claims to self-determination, to enact her own conception of the good life,
increasingly understood to include a right to end it.
Lawmakers stood largely aside, in deference to claims of scientific
authority, then considered unassailable. Starting only in the 1970s did courts
and legislators start seriously to reassess this position. Invoking the public’s
evolving moral sensibilities in their defense, lawmakers then began to interject
the law into the domain of physician-patient relations, once considered an
essentially private affair, notwithstanding the state’s ever increasing role in
financing the health care system.
Along similar lines we may describe the changing relationship,
throughout the world, between professional soldiers and their fellow citizens.
For centuries, the normative ordering of relations between officers and civilians
in war remained effectively encharged to the profession of arms. Inter-state
treaties governing the conduct of armed conflict did not exist until the late 19th
century. And customary law was only somewhat more developed, with very
limited purchase upon wartime military practice in any event, as best we can
tell. Soldiers and statesmen did not regard the common moral understandings
of civilians, on either side of the battle lines, as remotely relevant to the
normative regulation of armed conflict. Such ordering remained entirely an inhouse affair among military (and deferentially sympathetic civilian) political
elites.
30
It is hardly surprising that these landed aristocrats—who ruled polities
yet lacking full adulthood franchise—displayed only the most minimal and
“chivalric” of moral sensitivities toward the fate of those suffering war’s horrors
at their hands. Even the first Hague and Geneva Conventions bore the heavy
stamp of self-interested influence by a pan-European officer corps. It required
the intercession of concerned civilians—beginning only in the 1860s, with
Henry Dunant’s agony over the thousands he viewed dying on the fields of
Solferino—to press the law gradually toward some faint acknowledgement of
the legitimate place of common morality within the international governance of
war, beyond the constricted concerns of an hereditary martial caste.
In sum, both the medical and military professions traditionally laid
broad claims to self-governance and social authority on the basis of practices of
moral ordering heavily private in nature, owing little to any formal intercession
by the law. Nor did prevailing moral sensibilities among broader publics yet
exercise great influence over how these professionals went about their work.
Only much later, at the initiative of skeptical outsiders, would a wider common
morality, enshrined in reformed legal rules, come increasingly to infuse their
activities. In both cases, traditional practices of moral ordering embodied views
today deemed illiberal, pre-modern, anti-modern. And in both cases those
practices originated in the particularistic norms of men occupying high social
stature afforded by membership within an elite profession of ancient pedigree.
Today, we might forgive the unpalatable historical origins of these
practices of private ordering if they still seemed, at least, to deliver on their
promises in ways liberal legality could not. We might be prepared to live with
their embarrassing illiberality, in other words, if they showed themselves
effective in inducing physicians and professional soldiers to exercise their rights
responsibly, as we would now understand and apply that concept to their
activities. There is otherwise no reason for the law to continue affording
members of these vocations any rights to cause serious harm, in ways so many
consider wrongful.
These rights prominently include those authorizing soldiers to
“incidentally” kill civilians in war, and permitting physicians, for much of
Western history, to override the wish of a dying patient to end an unbearable
existence. At present, more problematic than the illiberalism such practices
manifest may be simply their debility, their declining capacity to restrain
disfavored rights to the extent they once seemingly did. In short, modern society
turns increasingly to formalities of the law, both national and international, for
its chief methods of normative ordering because we no longer trust such
professional groups and other insular sub-communities to regulate themselves
in ways sufficiently attentive to expectations of common morality.
More telling for present purposes, though, is that—despite this
increased legal scrutiny of such professions—contemporary Western society
continues to depend at key points on ancient forms of extra-legal ordering their
members still employ. Though recent changes in the law governing each group
draw greater attention, more tellingly decisive in sociological terms is what
remains almost untouched. Thus, precisely as we enhance the rights of medical
31
patients vis-à-vis those who treat them, we at times increasingly depend on such
caregivers to actively restrain—indeed essentially prevent—these very patients
from exercising their new legal right to die. We pride ourselves on creating this
modern right, publicly trumpeting it as a triumph of philosophic liberalism, even
as we routinely violate it in service of older ethical understanding still prevalent
within society at large, no less than among medical professionals themselves.
Ideas drawn from modern liberalism now permeate our common
morality in ways inspiring such legal developments as the requirement of
“informed consent” to medical treatment and virtually the entire field of
international criminal law. These bodies of rules represent an attack on the
traditional prerogatives of elite professions, not so much on their social stature
per se as specifically on their practices of normative ordering. Those practices
have long been and substantially remain non-liberal, even anti-liberal, arguably
anti-modern. And these practices clearly have profound implications for all
affected by their conduct, which is to say billions of people worldwide.
Liberal philosophy must not be equated with modernity, as was once
widely, mistakenly done. It has nevertheless undoubtedly won enormous
ground, often through Western influence (colonial and otherwise), in legal
systems throughout much of the world. The pressing and perplexing question
therefore then becomes that of “how [to] imagine people living within the liberal
social world,” as Tomasi contends. That inquiry, in the view of many, concerns
the arguably debilitating effects of liberal political and economic institutions—
rights consciousness in particular—on the common morality of whole
populations, and notably those aspects of common morality dampening the
abusive exercise of rights. These institutions and the ideals they embody have
created a world—the liberal society we today largely inhabit—by no means
“coextensive with the domain of the political.” In other words, a liberal polity
has, to great degree, spawned a liberal society, which in turn generates
unforeseen difficulties that the polity, through its law, must now confront.
Like many others, Tomasi is vexed by how and why modern liberal
legality offers us so little guidance in answering such inescapable questions as:
“What do my rights mean to me?,” and therefore how should I put them to use.
A liberal society needs, he argues, to render its citizens “skillful in the art of
exercising their rights,” enabling them resolve for themselves the traditional
ethical questions concerning how one ought to live, including what duties one
owes toward others. In these respects, his gentle provocation to political theory
resembles mine to legal thought. For both fields remain virtually obsessed with
the question of what rights we should have, at the neglect of questions about
how we actually exercise them, and should exercise them, in light of a proper
regard for those around us, near and far. The concerns of contemporary liberal
theory are more avowedly normative than my own. They nonetheless lend
further gravity to the task of advancing our socio-legal understanding of rights
to do wrong. For as citizens and lawmakers, our views of what we believe we
may reasonably expect of others in the exercise of their rights necessarily inform
both our public policies and our personal conduct.
32
Some will rejoin that contemporary Western legal systems, unlike those
insular pre-modern Jewish communities for instance, are simply not much
concerned with instructing us in what we must do with our lives, about the life’s
purpose and meaning. The law of a liberal society seeks only to establish
background “rules of the game,” the minimum conditions of mutual
coordination we must satisfy in pursuing our own freely-chosen life-projects.
Liberal democracies and competitive markets exist not to advance any
particular, contestable theory of “the human good,” other than to assist
individuals in advancing their own sundry, even antithetical, purposes.
Yet the notion of personal autonomy implicit in this picture is itself a
substantive moral ideal, many have observed, and widely endorsed as such
within this country and the Western world at large, even well beyond. It is an
ideal that our law largely enshrines, and increasingly so. It does so most notably
in rules protecting contractual freedom, private property, personal privacy
(including sexual orientation), rights to speech and association. This is our
common morality to a great extent, at least a central, integral part of it. As some
of these examples suggest, moreover, “private” law embodies our common
morality no less than “public” law.
Still, it is true that much of law in the contemporary West has gradually
retreated to the task of protecting a sphere for individual conduct, rather than
enforcing a comprehensive public doctrine of moral or religious truth.
Recurrent concerns nonetheless arise among both regular citizens and thinkers
within several intellectual traditions that modern legality can succeed in
underwriting a social order—even one whose terms of cooperation remain ever
open to revision—only insofar as key elements of a more full-bodied morality
persist, now in more informal, secular, and perhaps inarticulate form than in the
past. These elements could find their sociological footing only in common
morality, the social practices and personal virtues embodying it, and in the dayto-day methods we employ for stigmatizing its violation. These are essential
where neither the law nor tit-for-tat reciprocity prove sufficient, as many today
conclude they don’t, in sustaining a tolerable measure of mutual concern and
social solidarity within modern liberal society.
Informal restraints of this sort on rights to do wrong thus become
important in a new way as modern legality ceases to lend coercive backing to a
panorama of moral responsibilities that these extra-legal restraints now alone
underwrite. Yet we’ve seen in this Chapter, philosophical defenders of
modernity and of liberal legality remain, on the whole, curiously indifferent to—
even actively suspicious of—such social mechanisms and the conditions of their
satisfactory operation. These thinkers presumably assume, insofar as the
question enters their mind, that we may take the continued efficacy of these
unspoken forces for granted. Many readers would infer that our recent
experience with several of the legal rights here examined, however, amply
indicates that—within certain pockets of modern society, in patterned and
increasingly predictable ways—we cannot.
33