A Legal Right to Do Legal Wrong PDF

A Legal Right to Do Legal Wrong Author(s): Ori J. Herstein Source: Oxford Journal of Legal Studies , Spring 2014, Vol. 34, No. 1 (Spring 2014), pp. 21-45 Published by: Oxford University Press Stable URL: http://www.jstor.com/stable/24562807 JSTOR is a not-for-profit service that helps scholars, re...

A Legal Right to Do Legal Wrong Author(s): Ori J. Herstein Source: Oxford Journal of Legal Studies , Spring 2014, Vol. 34, No. 1 (Spring 2014), pp. 21-45 Published by: Oxford University Press Stable URL: http://www.jstor.com/stable/24562807 JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at https://about.jstor.org/terms Oxford University Press is collaborating with JSTOR to digitize, preserve and extend access to Oxford Journal of Legal Studies This content downloaded from 158.121.247.60 on Sun, 13 Sep 2020 02:04:29 UTC All use subject to https://about.jstor.org/terms Oxford Journal of Legal Studies, Vol. 34, No. 1 (2014), pp. 21-45 doi: 10.1093/ojls/gqt022 Published Advance Access September 6, 2013 A Legal Right to Do Legal Wrong Ori J. Herstein* Abstract—The literature, as are the intuitions of many, is sceptical as to the coherence of 'legal rights to do legal wrong'. A right to do wrong is a right against interference with wrongdoing. A legal right to do legal wrong is, therefore, a right against legal enforcement of legal duty. It is, in other words, a right that shields the right holder's legal wrongdoing. The sceptics notwithstanding, the category of 'legal right to do legal wrong' coheres with the concepts of 'right' and 'legality'. In fact, once the parameters and features of the category of 'legal right to do legal wrong' are clarified, it becomes apparent that positive law contains actual doctrines that have the structure of a right to do wrong. One example is the doctrine of diplomatic immunity. This, and other examples of normatively sound legal doctrines that constitute legal rights to do legal wrong, demonstrate that such rights are not only conceptually coherent, but at times are normatively valuable. Moreover, looking to the law helps detect a category of rights to do wrong that has thus far gone wholly undetected in the literature, which is immunity from liability for violation of duty. Keywords: rights, Hohfeld, immunity, jurisprudence 1. A Right to Do Wrong Can the law provide a right to do what the law forbids? I explain that it can. Legal rights to do legal wrong, that is legal rights to violate legal duty, are conceptually coherent as manifestations both of the concept of 'right' and the concept of 'law'. Moreover, such rights are found in various doctrines of positive law, suggesting that legal rights to do legal wrong are not only conceptually coherent but at times also beneficial. * Lecturer in Jurisprudence, Dickson Poon School of Law, King's College London. Email: ori.herstein@ kcl.ac.uk. For their comments on previous drafts of this paper I am grateful to Sherry F Colb, Michael C Dorf, David Enoch, Miguel Herstein, Robert A Hillman, Gregory Keating, Nate Oman, and Laura Underkuffler. I am also thankful to the participants of the Staff Seminar at the Dickson Poon School of Law, King's College London (2012), Private Law Theory discussion group at William and Mary Law School (2011), and to the attendees of my lecture at the Peking University School of Transnational Law (2011). Finally, special thanks to William A Edmundson for a very helpful and detailed set of written comments. ) The Author 2013. Published by Oxford University Press. All rights reserved. For permissions, picasc c-inan: journals.permissiunsittiuup.com This content downloaded from 158.121.247.60 on Sun, 13 Sep 2020 02:04:29 UTC All use subject to https://about.jstor.org/terms  22 Oxford Journal of Legal Studies VOL. 34 A holder of a right to do wrong (not necessarily a against certain interferences by others with the ri A right to do wrong is, in other words, a right again Such that if a holder of a right to cp—who is also under a duty not to