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.
Veitch’s text argues that throughout history our legal culture has been saturated with—and dependent upon—manifold layers of often unseen forms of obligation, including throughout the modern ‘age of rights’. In thinking about this, I’m interested in the aspect of Veitch’s argument that concerns ‘structural substitution’: his phrase for describing the way obligations have maintained this continuity by adapting both their discursive and material embeddedness in the social bond. I’ll start by summarising a few key elements of Veitch’s argument (with a brevity that will no doubt betray the nuance of his text).
In the early-modern age, as the authority of state law had aligned with our primordial debt to God, it was unsurprising that obligation was more prominent in social formations: “in the seventeenth century writers had conceptualised the constitution of subjectivity in the language of pre-existing obligations: kingly power and subjects’ loyalties as constituted by obligations to God” (p. 48). By contrast, the post-Enlightenment age might be regarded as substantially deposing obligation in favour of rights, for example conceived through a nexus of freedom, reason and autonomy. Upon this view, whatever obligations I have appear merely as the other side of your rights, and vice versa. But Veitch carefully and extensively argues that, in fact, obligations hadn’t been deposed, and had “gone underground, there to do as much work as ever but largely now hidden from the light of reasoned discourse” (p. 42). This what Veitch describes as a structural substitution, in which the priority of obligation is maintained but attaches to a new locus of social organisation, in this instance “from religion to economy” (p. 6).
There are some important offshoots of this idea that also require a mention. First, there is an asymmetry between rights and obligations. The rewards of rights are contingent to the individual, yet all people are subject to many ‘waves’ of obedience to the underlying practices necessary for those rights to be coherently and practicably (and selectively) realised. For example, workers in a capitalist economy must submit to their own economic exploitation in the name of respecting rights to property, “no matter how exploitatively it had been gained now how unequally it was now distributed” (p. 53). At surface level, obligations have a limited juridical form (e.g. to honour one’s contractual duties bargained within a market), but they rely upon underlying layers of socialised obedience that are not visible in formal legal doctrine.
Second, we can see this is important, not merely as a way of critiquing the ideological veneer of individual rights that can mask underlying material inequality. It also demonstrates that the positive potentiality of rights depends, inevitably, on how we conceive their expansive and underlying foundation upon obligations. For instance, addressing matters such as poverty, healthcare and education by expanding human rights into the categories of social and economic equity. Such rights require even more expansive layers of obligations within states and civil society to actively create the conditions in which such equality can be realised (p. 94). Where such layers of obligation are absent or ineffective in society, these rights still exist in the abstract but do not reflect material reality.
Even more pressingly, he also questions whether a global environmental crisis can be addressed in an age of rights without our conscious development and prioritisation of the types of obligation that are demanded to achieve ecological sustainability. In other words, we need to take obligations seriously, and consciously, as a necessary aspect of the social bond with the potential to secure an equitable and sustainable future. To do so, Veitch suggests the need for a new structural substitution, decoupling the rights-obligation nexus, and renewing the capacity of obligations to express human solidarity in the face of our common vulnerability. This would mean conceiving “obligations as correlative to needs rather than rights” (p. 97, my emphasis). A shift to needs corrects the in-built inequalities of previous regimes of obligation and their ideological buttressing of abstract rights, precisely because “we are all equal in needs” (p. 98).
Now turning to some critical reflection on Veitch’s position here, it seems quite right to identify the ecological crisis as a moment of opportunity in refiguring our understanding of obligation. In fact, one can already see something of a crude manifestation of this tension in the activism of Extinction Rebellion and its offshoots. In the UK, the Insulate Britain group justify their actions with phrases such as ‘we must do this now’, ‘we have no choice’. This is a register of obligation different to the one internalised by the disgruntled drivers who are unable to meet their own obligatory duties (‘I must get to work’, ‘my child needs to get to school’)—duties that flow from participation in a society of self-sabotaging consumption. Perhaps we can already see the competition between different lexicons of obligation here.
But I would suggest that the proposed renewal of our obligations’ significance requires a different sort of structural substitution to the one marking the shift from religion to the economy. Both God and the market can engender forms of obedience that purport to offer distinct and tangible rewards for the subject (the social veneration of virtue and the promise of salvation in Heaven; and the prospect of material, inheritable wealth). Indeed, they constitute the very subjects whose obedience they require. My curiosity around a structural substitution to our need for ecological sustainability is as follows: it cannot be embedded in the circulation of power in the manner that God and the Market can be, as the latter are mechanisms of achieving social compliance and organisation. Subjects do not choose to be obedient to God or the market: their subjectivity is produced out of the material necessity of obedience. But as counterintuitive as this might sound, I would say that obedience to the needs of ecological solidarity is not ‘necessary’ in the same register. Of course, by this I don’t mean that there is no need to tackle climate change. I mean that one’s being as a subject in the world, with the various stratas of power bearing upon oneself, do not obligate behaviour in a way that the economy does. Or to put it flippantly, what would it take to inculcate a sense of ‘need’ or common vulnerability in the major shareholders and executives of a fossil fuel corporation? Surely we cannot choose what it is that obligates us, any more than we can choose to be obligated at all. Does shifting from the idea of obligations being mere correlatives of rights, towards to an idea of obligations flowing from needs, mean a call for some form of revolutionary consciousness? That would require an account of the subject that is able to understand its own embeddedness in obediential practices that are necessary within an ideology that gives primacy to the market.
In any case, our rootedness in need describes not only our common vulnerability, but also the distribution of capacity for agency in that situation. This means that obligation will be felt differently for different people. Such a sense of solidaristic obligation can be might be more realisable for those who have the luxury of living in rich, post-industrial societies. For those in poor industrialised societies, this sense of obligation will be felt less acutely and will be less realisable in any case.
If indeed such a new structural substitution is possible, a further challenge I would pose is that we would need to ensure that this translation avoids the very problems that Veitch identifies in the existing prioritisation of freedom, reason and rights. He shows how the lofty rhetoric of a Kantian moral law is betrayed by the constitutively unequal distribution of who gets to participate in, and take reward from, the formulation of such law. But what is to prevent the same inequality emerging in the formulation of obligation focused upon the need of ecological sustainability? How can we address the same dominant, powerful and self-interested actors in this situation, whose power could then be concealed by this appeal to a common rootedness in environmental precarity? To distill the question further, are we seeking to get out of ideology, or will ideology—and its capacity to conceal inequality—simply be reconstituted in a new lexicon?