Rights, Obligations and Torture: On Veitch’s Obligations

by | 14 Dec 2021

We continue our series on contemporary critical (legal) books with a series of responses to Scott Veitch’s, Obligations: New Trajectories in Law (Routledge, 2021). We will post four responses to Scott’s new work, each picking distinct themes which together testify to the richness of the book’s scholarship. Next week Scott will respond.

Those familiar with Scott Veitch’s earlier body of work will not be surprised by the wide-ranging, incisive and witty style of Obligations, his contribution for Routledge’s series New Trajectories in Law. This is not to diminish the accomplishment: Veitch’s impressive capacity of condensation, its intellectual and historical breadth, and the clinical precision with which he dissects the subject-matter deserve high praise. His “new trajectory” is at once a retrieval of an overlooked genealogy, a critical diagnosis of the times, and the groundwork for its renewal. 

The book is not a critique of rights per se, but of their dominant role as the defining, almost exclusive, language of our age. Not only are obligations historically prior, but they are substantially more robust and perform a “connective work” that rights simply do not. Above and beyond a primordial “right to have rights,” then, Veitch envisages an antecedent world of obligations that ground human relations and their political institutions, which make rights possible (34). However, he is too acute a thinker simply to suggest a reversal: “To expose and understand the fact of their [obligations’] priority must not therefore entail necessarily valorizing it: context matters” (18).

The book’s historical arc situates us at a transitional shift in the seventeenth century where the old feudal structures of allegiance began to crumble and ius began to refer not to an objective world of relations, but to the bearer of subjective rights. Veitch rescues the work of a King (James), a poet (Donne), and a judge (Stair) whose emphases on obligations, reliant as they are on a heavily Christian cosmology, appear distant and almost departed. In Veitch’s reading, however, a structure similar to Stair’s trinity of “obedience, freedom, and engagement” (admittedly less stirring than the French liberté, égalité, and fraternité) continues to be central, albeit in a manner that has gone “subterranean.” Indeed, obligations have undergone several structural substitutions and transformations, most notably the replacement of the old religious metaphysics by the new dogma of the market. Obligations are now reified, bought and sold as commodities, and made enforceable through the coercive role of law. The argument recalls not so much Carl Schmitt’s thesis about the theological origin of modern political concepts, as much as Max Weber’s aim at the moral underpinnings of contemporary capitalism. Therefore, “[t]o understand the specific work legal obligations do in our ‘age of rights’ we need to situate the analysis within the forms and forces of contemporary capitalist society more broadly” (58). 

The most conceptual chapter highlights the operations of hybrids: the combination of legal and factual practices of obedience secured by other, non-legal, means. Slightly amending Foucault, Veitch sees modern disciplinary regimes aligned with juridical power, where law plays crucial constitutive and disciplinary function. This in turn is inseparable from wider economic and technological infrastructures that further define and constrain the options that legal actors have. Legal formations like labor contracts, regimes of property and of debt, like mortgage agreements, cannot be bargained about by the parties themselves; hence what appears as choice is so in appearance only. The guiding metaphor of the modernvinculum juris is (continues to be) the rope, where the creditor holds one end and the debtor is tied by the neck.

In the concluding chapter, perhaps the most generative, Veitch returns to the role of obligations in contributing to the well-being of individuals and communities, in ways that foster reciprocity, commitment and trust. In these regards, rights appear to have less of a foundational role. Moreover, because obligations can function on a different basis than rights, they are not their exact correlatives. Veitch borrows Waldron’s idea of “waves of duties,” where one right generates not just one duty, but multiple. For example, the right not to be tortured generates the duty to investigate, to hold perpetrators to account, to provide remedies, to change practices to avoid repetition, and so on.

In the remaining part of this commentary, I want to underscore further this idea through a series of cases of the European Court of Human Rights (ECtHR), who has condemned Spain a total of eleven times since 2011 for violating the prohibition of torture or inhuman or degrading treatment—Article 3 of the European Convention of Human Rights. Most cases relate to suspected members of the terrorist group ETA, but this also includes the case of journalist and Director of the Basque newspaper Egunkaria, Martxelo Otamendi, who suffered ill-treatment while in preventive custody at the hands of the police, before he was cleared of all charges. Even though no connection with terrorism was ever found, this fact did not prevent the police to put a plastic bag over his head to simulate asphyxiation.[1] My question is: how does a renewed focus on obligations enables us to frame the issue better than rights? 

At the domestic level, most of the cases were stopped at their feet, dismissed due to insufficient evidence, having failed to identify the perpetrators, or even to ascertain the cause of the injuries. On appeal the higher courts confirmed the dismissals and, where the cases reached the Constitutional Court in amparo (including that of Otamendi), the latter declared the complaints manifestly ill-founded, as it didn’t give rise to a human right issue [sic]—indirectly proving the point that the language of rights can serve authorities to avoid their obligations. 

First, as the ECtHR has repeatedly stated, when credible allegations of torture are made, “it is the duty of the national authorities to carry out ‘an effective official investigation’ capable of establishing the facts and identifying and punishing those responsible.”[2] This follows “by implication” from the general duty “to secure to everyone within [its] jurisdiction the rights and freedoms defined [in the Convention]” (Article 1).[3] The investigation must be thorough, that is, the authorities must make a serious attempt to find out what happened and not rely on hasty or ill-founded conclusions to close their investigation. In most cases, Spanish judicial organs show a worrisome lack of concern. Thus, in a case where the applicant had proposed several means of evidence to substantiate her allegations, the investigating judge did not bother even to take her statement or that of the police interrogators. Dumbfounded, the ECtHR was “unable to discern the motives why the judge did not accept the means of proof suggested by the applicant when there was no practical impediment to carry them out.”[4]

Besides neglect, other cases evince more sinister complicities. For example, in the case of Portu and Sarasola, the ECtHR details broken ribs, severe bruising in head, body, and legs, emphysema with severe respiratory difficulties and pneumothorax in the lungs, etc. which led one detainee to the Intensive Care Unit with life-threatening injuries.[5] The police argued that the injuries were sustained when the suspects attempted to escape, but the two forensic doctors who attended the victims wrote in their official report that the injuries were incompatible with this version of events. The Provincial Court of Guipuzcoa condemned four of the arresting officers for torture. However, the Spanish Supreme Court quashed the judgment and absolved all four policemen. According to this judgment, ETA members were known to make false allegations and their testimony was not credible enough to upset the presumption of innocence of the policemen. In condemning Spanish authorities, the ECtHR warns that “domestic judicial organs may not in any event appear willing to leave unpunished assaults to physical and moral integrity. This is essential … for preventing any appearance of the authorities’ tolerance of or collusion in unlawful acts.[6]According to the ECtHR, the Supreme Court’s obligation did not end when it did absolve the policemen from wrongdoing, for it was still up to the state to provide a credible account of how these injuries were sustained, which they failed consistently to do. When no satisfactory explanation is provided, the ECtHR is entitled to draw negative inferences for the interest of the government, namely, that torture did take place.[7]

Finally, the ECtHR reminds Spain that in order to fulfil their obligations, certain practices must be implemented[8]: the installation of video-cameras in the interrogation rooms; the prohibition of blindfolding prisoners to make it impossible to identify interrogators; ending secret and incommunicado detention; and obviously establishing clear codes of conduct for interrogations. Similarly, it reminds judges of their duty to be proactive.  

All together these cases demonstrate Veitch thesis that taking rights seriously requires taking obligations even more seriously. Further, a focus on obligations gives a better account of what’s at stake: not just ensuring individual rights of the applicants; nor even an abstract rule of law. A state that fails to take torture seriously or, worse, shows connivance with those who practice it in its name, forfeits its claim to the citizens’ loyalty. Veitch reminds us that even Kings who considered themselves to be “accountable to none” proclaimed certain obligations towards their subjects. Today as ever, a failure to take these obligations seriously gives way not just to a right, but perhaps a duty, to resist.

[1] Otamendi Egiguren v. Spain, 16 January 2013. 

[2] Okkali v. Turkey, 17 October 2006, para 65.

[3] Bouyid v. Belgium, ECtHR [GC], 28 September 2015, paras. 116-123. 

[4] Etxebarria Caballero v. Spain, 7 October 2014, para 46.

[5] Portu Juanenea and Sarasola Yarzabal v. Spain, 13 February 2018, paras. 17-21; 32, 42-43, and 76-77.

[6] Ibid., para 89.

[7] Ibid., paras 82-83.

[8] In documenting these practices, the Court relied on reports by the European Committee for the Prevention of Torture (CPT) that visited Spanish prisons.


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