A legal right to do legal wrong

Ori J. Herstein*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

11 Scopus citations

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.

Original languageAmerican English
Article numbergqt022
Pages (from-to)21-45
Number of pages25
JournalOxford Journal of Legal Studies
Volume34
Issue number1
DOIs
StatePublished - Mar 2014
Externally publishedYes

Keywords

  • Hohfeld
  • Immunity
  • Jurisprudence
  • Rights

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