A Legal Right to Do Legal Wrong


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ISSN: 2316-8374
Editor Chefe: Maria Celina Bodin de Moraes
Início Publicação: 31/07/2012
Periodicidade: Semestral
Área de Estudo: Direito

A Legal Right to Do Legal Wrong

Ano: 2015 | Volume: 4 | Número: 1
Autores: Ori J. Herstein
Autor Correspondente: Ori J. Herstein | [email protected]

Palavras-chave: Rights. Hohfeld. Immunity. Jurisprudence.

Resumos Cadastrados

Resumo Inglês:

The literature, as are 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 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.