A Legal Right to do Legal Wrong

Ori Herstein (King's College London)
  Thursday 24 October, 5:30pm (coffee and tea at 5:15pm)   Location: Law Faculty Board Room 
  The literature, as is the intuitions of many, is skeptical 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 skeptics 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.