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Common morality—in the form of shame, outrage, and stigma—has
always been society’s first line of defense against ethical
transgressions. Social mores crucially complement the law, Mark
Osiel shows, sparing us from oppressive formal regulation. Much of
what we could do, we shouldn’t—and we don’t. We have a
free-speech right to be offensive, but we know we will face outrage
in response. We may declare bankruptcy, but not without stigma.
Moral norms constantly demand more of us than the law requires,
sustaining promises we can legally break and preventing
disrespectful behavior the law allows. Mark Osiel takes up this
curious interplay between lenient law and restrictive morality,
showing that law permits much wrongdoing because we assume that
rights are paired with informal but enforceable duties. People will
exercise their rights responsibly or else face social shaming. For
the most part, this system has worked. Social order persists
despite ample opportunity for reprehensible conduct, testifying to
the decisive constraints common morality imposes on the way we
exercise our legal prerogatives. The Right to Do Wrong collects
vivid case studies and social scientific research to explore how
resistance to the exercise of rights picks up where law leaves off
and shapes the legal system in turn. Building on recent evidence
that declining social trust leads to increasing reliance on law,
Osiel contends that as social changes produce stronger assertions
of individual rights, it becomes more difficult to depend on
informal tempering of our unfettered freedoms. Social norms can be
indefensible, Osiel recognizes. But the alternative—more
repressive law—is often far worse. This empirically informed
study leaves little doubt that robust forms of common morality
persist and are essential to the vitality of liberal societies.
Why should America restrain itself in detaining, interrogating, and
targeting terrorists when they show it no similar forbearance? Is
it fair to expect one side to fight by more stringent rules than
the other, placing itself at disadvantage? Is the disadvantaged
side then permitted to use the tactics and strategies of its
opponent? If so, then America's most controversial counterterrorism
practices are justified as commensurate responses to indiscriminate
terror. Yet different ethical standards prove entirely fitting, the
author finds, in a conflict between a network of suicidal
terrorists seeking mass atrocity at any cost and a constitutional
democracy committed to respecting human dignity and the rule of
law. The most important reciprocity involves neither uniform
application of fair rules nor their enforcement by a simple-minded
tit-for-tat. Real reciprocity instead entails contributing to an
emergent global contract that encompasses the law of war and from
which all peoples may mutually benefit.
Who done it? is not the first question that comes to mind when one
seeks to make sense of mass atrocity. So brazen are the
leader-culprits in their apologetics for the harms, so wrenching
the human destruction clearly wrought, meticulously documented by
many credible sources. Yet in legal terms, mass atrocity remains
disconcertingly elusive. The perversity of its perpetrators is
polymorphic, impeding criminal courts from tracing true lines of
responsibility in ways intelligible through law s pre-existing
categories, designed with simpler stuff in mind.
Genocide, crimes against humanity, and the worst war crimes are
possible only when the state or other organizations mobilize and
coordinate the efforts of many people. Responsibility for mass
atrocity is therefore always widely shared, often by thousands. Yet
criminal law, with its liberal underpinnings, insists on blaming
particular individuals for isolated acts. Is such law therefore
constitutionally unable to make any sense of the most catastrophic
conflagrations of our time? Drawing on the experience of several
recent prosecutions (both national and international), this book
trenchantly diagnoses law s limits at such times and offers a
spirited defense of its moral and intellectual resources for
meeting the vexing challenge of holding anyone criminally
accountable for mass atrocity. Just as today s war criminals
develop new methods of eluding law s historic grasp, so criminal
law flexibly devises novel responses to their stratagems. Mark
Osiel examines several such recent legal innovations in
international jurisprudence and proposes still others.
Who done it is not the first question that comes to mind when one
seeks to make sense of mass atrocity. So brazen are the
leader-culprits in their apologetics for the harms, so wrenching
the human destruction clearly wrought, meticulously documented by
many credible sources. Yet in legal terms, mass atrocity remains
disconcertingly elusive. The perversity of its perpetrators is
polymorphic, impeding criminal courts from tracing true lines of
responsibility in ways intelligible through law s pre-existing
categories, designed with simpler stuff in mind.
Genocide, crimes against humanity, and the worst war crimes are
possible only when the state or other organizations mobilize and
coordinate the efforts of many people. Responsibility for mass
atrocity is therefore always widely shared, often by thousands. Yet
criminal law, with its liberal underpinnings, insists on blaming
particular individuals for isolated acts. Is such law therefore
constitutionally unable to make any sense of the most catastrophic
conflagrations of our time? Drawing on the experience of several
recent prosecutions (both national and international), this book
trenchantly diagnoses law s limits at such times and offers a
spirited defense of its moral and intellectual resources for
meeting the vexing challenge of holding anyone criminally
accountable for mass atrocity. Just as today s war criminals
develop new methods of eluding law s historic grasp, so criminal
law flexibly devises novel responses to their stratagems. Mark
Osiel examines several such recent legal innovations in
international jurisprudence and proposes still others.
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