We began with what I called the puzzle of immunity-violation. If claim-violation is to be the paradigm case of violation, then we define violation as acting in a way a claim makes it the case one should not act. Or, violation is failing to discharge a duty correlative to a claim. The idea, we saw, was that violation was an act of overstepping normative limits imposed by some normative relation between people. Immunities, however, like the laws of nature, impose limits that cannot be overstepped. What it is for an immunity-relation to exist is for it to be impossible for some specified person to change another specified relation between people. If this normative limit can be overstepped, then it seems the limit cannot be one imposed by an immunity. When violation occupies a central place in our thinking about wrongdoing, it then becomes tempting to conclude that immunities are just not the sort of thing that can be treated in a way that wrongs the immunity-holders. This conclusion too, however, is impossible to hold on to once one looks to any of the numerous examples of wrongs done through the treatment of immunities. I began the essay with the example of Dr. King and an attempt by the City of Birmingham to give Dr. King a duty he had an immunity against being given. The concept of immunity, as Edmundson shows us, is indispensable when attempting to make sense of free-speech cases. One is forced, then, to undertake the search for a way of treating immunities that is not violation but that wrongs the immunity- holders.
Jean Hampton provides another angle on wrongdoing, one that allows us to see how immunity- holders could be wronged through the contradiction of their immunities. For Hampton, the defining feature of wrongful acts is their capacity to cause moral injury. Moral injury she defines as damage to a person’s value, caused by first creating the appearance of the person’s degradation. Wrongful acts create this appearance of degradation in part by denying the value generating the person’s entitlements. At this point, I tried to show, among others, Hampton’s analysis is unduly narrow. Hampton seems to assume that the denial of the value generating an entitlement and violation of that entitlement are inter-entailing. Rather, I argued, not all violation constitutes denial of the value generating a person’s entitlements, and acts other than violation can constitute denial of the value generating a person’s entitlements. In particular, denial of the existence of the entitlement itself (contradiction of the entitlement) can constitute
denial of the value generating the entitlement; and one can contradict an entitlement both linguistically and non-linguistically without ever violating the entitlement. I also introduced an alternative analysis of expressive wrongdoing developed by Anderson and Pildes, according to which acts that express wrong attitudes about persons’ value constitute wrongdoing directly; acts that deny the existence of or the importance of the value of a person (as do acts of claim-contradiction) are acts that express wrong attitudes about persons’ value. The next step was to show that immunities, like entitlements, could be contradicted, and that immunity-contradiction, like entitlement-contradiction, could constitute denial of the value generating the immunity. If immunity-contradiction could constitute denial of the value generating the immunity, then immunity-contradiction could constitute wrongdoing (according to the Anderson/Pildes analysis) and could cause the appearance of the immunity-holder’s degradation, which in turn could cause the immunity-holder moral injury (according to the Hampton analysis).
The application of the analysis to legal rules revealed two interesting ideas. First, contradiction of a legal immunity that (because of relevant social rules) counts as denying the legally significant feature rooting the immunity (the corollary to the value generating the moral immunity) can, in some circumstances, cause the feature to cease to exist. Thus, if the U.S. Government treats a certain class of people as if that class of people lacks the immunities and claims guaranteed them as citizens, they eventually lose their citizenship status under the law. Likewise, contradiction of a legal immunity that (because of relevant social rules) counts as denying the legal rule that secures the immunity to the immunity-holder because of the immunity-holder’s legally significant features can, in some circumstances, cause the rule in question to atrophy and, eventually, to cease to exist. Judges and juries in the American South who refused to indict or convict white murderers of black people undermined the status of murder laws insofar as they applied to black people.
If we return, again to the comparison between immunities and natural laws, we see that they differ on this point. The character of the laws of nature as laws of nature is never undermined by human action or belief. Similarly, the character of moral immunities as moral immunities is never undermined by human action or belief. Legal immunities, however, are possible to undermine. One might characterize legal immunities, then, as social images of certain moral and natural laws. The parallel between them is
not perfect, but wrongful ways of treating moral and legal immunities, at least, can be fruitfully analyzed together.