A Reply – Obligations: New Trajectories in Law

by | 20 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 have posted four responses to Scott’s new work, each picking distinct themes which together testify to the richness of the book’s scholarship. In the final post of the series, Scott responds to the comments.

There has always been an ambivalence about rights amongst critical legal theorists. Their intellectual critiques have been juxtaposed to the pragmatism of movements struggling for rights to equality and recognition in the face of oppression and discrimination. The best work has often taken that contentious situation as its starting place for analysis. But if we were to shift attention from a focus on rights, could a critical account of obligations contribute to the work of critical legal theory and its practitioners? 

If rights and obligations are simply correlates there does not seem to be a great deal to be said; it is the same problem looked at from a different end of the relation. But are rights and obligations correlative? Or is there more to the role of obligations than this account would have us believe? Would a focus on obligations in themselves unearth for critical consideration material that tends to stay hidden when the focus stays on rights? What would that material look like? 

The generous engagements with my book presented here give some cause for optimism that exploring answers to these questions may be fruitful. Julen Etxabe, for example, observes something important about how a renewed focus on obligations may shed a different light on practical problems associated with the accountability of state power for alleged violations of human rights. Drawing on decisions of the European Court of Human Rights, he demonstrates persuasively how the priority of obligations plays out with respect to allegations of torture by the state. He shows that there are multiple obligations on a range of actors and institutions all of which are required to be met in order to uphold one right: the right not to be tortured. 

Etxabe ends his observations however by signaling another register in which obligations are also central. This concerns the question of citizens’ loyalty to the state when the state is in breach of its obligations. And here, the play of obligations forms around the question of whether there is a duty to resist the state. Foregrounding this problematic makes more demands on the citizen than does the conventional concern with whether there exists a right to resist or disobey. Addressing the nature of this obligation may therefore prove to be a productive, because more challenging, starting point for framing political action.

Of course, the question of whether there is an obligation to obey the law is an old one. It is not one I engage with in the book not least because I think pretty much every possible position on it has already been canvassed. But if the theoretical debate is not particularly worth joining, this is not to say the pragmatic question of whether there is aduty to disobey the law is not an important one. Clearly it is. In everyday situations – although perhaps in not enough of them – it is one of the most important questions we face or hide away from. 

To me this latter observation – the turning away from political action as an obligation – is potentially far more interesting to investigate than are normative theories about the duty to obey the law. For as Matt Stone observes, the “underlying layers of socialised obedience that are not visible in formal legal doctrine” would benefit from sustained excavation; and not only as a matter of socio-legal enquiry, but of legal doctrinal analysis itself. For the structuring of legal forms that are central to much social life and which operate to disempower so many from collective self-determination – financial indebtedness, workplace discipline, exploitative rental and property markets, and so on – rely on practices of obligation and obedience to succeed as legal forms. Without them legal doctrine would remain inert. 

Yet Stone is correct in noting that a turn to these features will not straightforwardly reveal answers to problems identified. There is still much critical work to be done, not least since there is, as he puts it, a “competition between different lexicons of obligation” which cannot but be engaged with. 

It is in this vein that Stone turns to the suggestion later in the book that a new account of obligation may be required when addressing the challenges of climate catastrophe. If his claim that “obedience to the needs of ecological solidarity is not ‘necessary’ in the same register” as earlier forms of obedience associated with religion and capitalism is correct, then what might that register be? One answer proposed in the book highlights a correlation between obligations and needs, rather than obligations and rights. In the context of climate change, reframing the interrelated dependencies and vulnerabilities of human, non-human, and climatic conditions, as a matter of diverse needs may provoke kinds of political action and awareness that do not get sufficient purchase when the focus is on rights, including – perhaps for obvious reasons – human rights. That there will still be a distributional issue with respect to needs and their attendant obligations, as Stone suggests, only confirms the stance taken in the book that a more solidaristic account of collective political action will not shirk from disagreements nor from the putting into operation of structures of coercive power.

What in practice this might involve is not, as Stacy Douglas correctly points out, developed further in this book. It is however a task that remains to be placed centrally within mainstream and critical legal analysis. It is one that already has some presence in certain kinds of theorizing and activism but it needs now to be instigated across all areas of legal doctrine and enquiry. That this has not yet happened may show a lamentable lagging behind of legal analysis. But that there may be structural reasons for this apparently hubristic failure is ably suggested by Douglas’s observation that contemporary discourses of legal rights – including those of autonomy and freedom – are so intimately connected with the success of liberal capitalism that it has proven difficult to disentangle them. But in the context of climate change, it is precisely the successes of liberal capitalism that are simultaneously among the key dangers causing planetary ecological collapse. Re-framing critical legal theory then in a context of an “ecology of obligation” may be one starting point for redressing this situation. 

But this may also necessitate something of a paradigm shift in jurisprudential analysis; not, dare one say it, by way of providing more minor jurisprudences, but something major: a major imaginative leap. It is this that Margaret Davies’s comments take up in a striking manner. As well as affirming the importance of obligations as relational, she raises the further “prospect of obligations that are inherent in the structure of matter”. What is intriguing about this approach is the making manifest of the material existence of obligations in places, forms, and things that typically remain unobserved but which are key to their operation. Kyle McGee’s taking forward into legal analysis of Latour’s new materialism is a rare source for this approach, bringing into view the materials which operate to provide the ligatures and ligaments that are the very stuff of obligations. 

But as well as providing more precise observations of the working of existing obligations in the world, Davies’s approach raises, it seems to me, something else: that imagining new forms of normativity may be necessary. She draws on Michel Serres’ suggestive notion of a “natural contract” in this regard. But even this may have to be newly imagined as a contract since it “is not a deal between two parties, humanity and nature” (Latour). Rather it would need to be a new form of “relational contract”, a new transactional form, one that was different from Ian Macneil’s account of these as they feature in contract law and business practices. For contrary to the latter, it would require a profound de-centering of human powers to make and contract. And it would involve engaging a new kind of normativity; a natural normativity that was, perhaps – if this term does not already carry too much baggage – a new natural law. 

In this respect one major task for critical legal theory lies in addressing this problem: How to (re)conceive normativity in the natural world – of which humans are a dependent part – that is getting more dangerous by the day as a result of human behaviour? It is here that a focus on obligations may be productive. As Davies suggestively expresses it: “In hypothesizing that obligation subsists within matter, it is possible that we are moving from a metaphorical ecology of literal obligations to a literal ecology of metaphorical obligations.” But if anthropocentrism is to some degree unavoidable – for humans – then what are the intertwined legalities of human and non-human of which we must take notice and towards which we must start to orient our behaviour? Questions like this are tough, and their type should proliferate. But what does seem obvious is that contemporary rights discourse is getting nowhere near to addressing the problems of global warming, with its droughts and drownings, and that this situation – for the reason mentioned earlier – is not going to change fast enough. As the widely circulated idea says, it is easier to imagine the end of the world than the end of capitalism. 

It is certainly challenging to imagine the notion of a new natural normativity, one that goes way beyond the imaginaries and practices of conventional western legal thinking. But it is an idea whose time has come and which, with the help of individual and collective originality in legal thinking, needs urgently to be explored and debated. There are potentially several sources to be found in this regard, but Margaret Davies’s notion of the “eco-legal bond” is one place where such a project might be enjoined. 

I will conclude these brief remarks with this suggestion. All authors hope that someone will read their work. To have them read it and engage with it and then write something about it is usually more than they can hope for. So I close by expressing my gratitude to each of the four readers. As the old saying goes, I am much obliged.

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