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.
Scott Veitch’s book Obligations is a refreshing rejoinder to the hegemony of rights under liberal capitalism. His key contribution is to say that before rights, there were (are!) obligations. This is, according to Veitch, both true historically (obligations pre-date rights), and normatively (obligations are the ur-bond, in a sense); obligations undergird rights even if we don’t think much about them today (and Veitch argues that mainstream legal thinking doesn’t). In short: while obligations played a central role in the European early modern period, the seventeenth and eighteenth centuries and their attendant revolutions ushered in societies that took their cues from constitutions and declarations that centered the rights-bearing individual. And yet, as Veitch claims at the outset of the book, obligations “…continued to play a decisive role in the constitution of identities, but in altered form, and their role within political and social practices and opportunities likewise continued but mutated. Their functioning went, so to speak, underground…” (19-20). It is this subterranean bedrock that Veitch turns his attention to, arguing that the excavation of obligations – while double-edged – is necessary to address the harmful inequities that organize the world, and their after-effects, including climate change. The book is jam-packed with brilliant research and insights and, as such, it is a short but powerful read.
One of the foundational claims of the book is that, while social contracts purport to protect individuals from harm, such promises are made with no mention of or accounting for great imbalances in individuals’ and communities’ stations. As Veitch beautifully says referring to the historical ascent of rights-based societies: “even where some forms of democratization began to deliver on the promise of an equivalence of rights and obligations with respect to the legitimacy of state power and the limits placed on it through the constitution and laws of the state, the structuring forms of association reliant on economic and private law forms (centrally property and contract) held out no such promise of equivalence” (48). The case of South Africa also appears as a thread throughout the book, providing another example of the hollow protections offered by constitutions that speak loudly in the name of equality, but carry little material change to cavernous asymmetries. One of the reasons for this can be explained through historicism.
Veitch helpfully demonstrates how the religious ordering of the sixteenth and seventeenth centuries, with their reliance on hierarchical obligations, was “structurally substituted” by global industrial capitalism by the nineteenth century. Instead of finding liberation from feudalism via individual rights, by then “the precepts of the market economy provided the structuring principles within which freedom had now to be understood” (50, emphasis his). While of course, there were legal gains made using the newly drafted rights, such wins took place in an arena pre-structured by the conditions of economic production based on proletarianization. This historical analysis reminds us why contemporary campaigns for better or more rights continue to provide justice in terms commensurate with liberal capitalism. But this doesn’t leave obligations off the hook; for Veitch, contemporary forms of obligations are also deeply enmeshed with the market logics and attendant inequities that shape our world. Veitch explains that “legal obligations and practices of obedience” (a theme he traces from early modern Europe) continue to be integrally woven into our contemporary lives and work most often at the behest of capital. And yet, legal scholars make little of the reality of our “ecologies of obligations” (58).
For Veitch, law alone cannot account for the ways in which we act, make decisions, and negotiate our freedom(s). There is always a push and a pull factor between rights and obligations, something he calls, drawing on James Dalrymple, 1st Viscount Stair, “hybrids of obligation and obedience” (see page 31 and throughout). Calling them “hybrids” explains how obligation, obedience, and freedom are deeply enmeshed with each other. According to Veitch: “The key point about hybrids of obligation and obedience, however, is that they contain both elements: freedom to obey and disobey an obligation and the unfreedom and conformity of practices of obedience whose specific quality lies in the fact that they are not easy to break” (71, emphasis his). Veitch argues that, although we are continually living within the relation between law and obligation, contemporary jurisprudence generally focuses only on our relation to law. What this leaves out is an understanding of obedience: why are we obedient? To what end? How can such practices be transformed? And what, most importantly for Veitch, does factoring in obedience tell us about our conceptions of autonomy and freedom (72)?
The book ends with an argument for mobilizing obligations in the service of solidarity. Veitch proposes a reigniting of a sense of collective obligation that does more than ask for more or better rights under liberal capitalism; our collective obligation is to acknowledge our joint liability: “What is done in and for the common good is what needs to be done to sustain that which is common. Thus acting for the sake of others is a central obligation in thinking about how to act for the common good” (104). Veitch is careful to say that these obligations (or this profound singular obligation) cannot merely be excavated and mobilized in the current economic context; the relations of production under capitalism suffocate a realization of the type of collective obligation that he seeks (111). But, still, he sees the possibility of a re-prioritization of obligations (ensuring they are a solidaristic set of obligations) as potential recourse to the inequities in human and non-human life that dominate the globe.
It seems unfair to end where I will, but I cannot help but ask – while noting that this is the perpetually asked question! – why Veitch did not start the book where he ends? I am hungry to hear more about the fulfillment of his vision of solidarity, especially in maneuvering the material barriers he addresses throughout. Perhaps the next book (!) can run with the subterranean metaphor and tell us more about how dominant modes of production might be unearthed, or how collective obligations can crack the bedrock of hierarchies that state power is built on (both through infrastructure and hybrids of obedience)? On the latter point, does Veitch see any merit in considering the role of hegemony or historical blocs (a la Gramsci) in hybrids of obedience? And if contemporary state forms are integrally capitalist, what alternatives can articulate or facilitate the solidarity that Veitch seeks via obligations? Soviets plus electrification? Half joke. This litany of questions comes not from a place of critique, but from a desire to hear more from a brilliant scholar who has articulated an inspiring defense of obligations in the name of a radically reimagined common good.