Kerry Rittich: “Mara Marin’s Connected by Commitment: Reflections in Aid of a Collective Project,” 2018 C4eJ 4

MARA MARIN’S CONNECTED BY COMMITMENT: REFLECTIONS IN AID OF A COLLECTIVE PROJECT
[read the rest of the Symposium on Mara Marin, Connected by Commitment: Oppression and Our Responsibility to Undermine It (2017)]

Kerry Rittich*

The provocation to read Connected by Commitment: Oppression and Our Responsibility to Undermine It, for which I thank Markus Dubber, was both a pleasure and a piece of good fortune. These reflections, then, are ‘critical’ only in the sense that they attempt to engage the foundational premises of the argument. They are primarily constructive, insofar as they attempt to draw some of connections with work in legal scholarship and identify some of the paths that future work based on its framework might take.

The fundamental question with which Mara Marin is grappling is how our responsibility, both individual and collective, to end oppression might be grounded. The basic framework Marin has laid out for thinking about our relations to oppression – simply stated, things that must change whether private, public or, most commonly, both – is one that I find both productive and compelling: in terms of open-ended commitments and obligations we assume in virtue of our own actions. As she points out throughout her analysis, the key is to shift the inquiry into our roles forward: to move the point of engagement from belief or intention, which might sustain practices of disengagement or simply denial of responsibility when it comes to matters of oppression, to a focus on behaviour which, directly or indirectly, sustains the very practices we wish to undermine and which, if altered, might also work to undo them. Thus, Marin invites us to delink our intentions from the effects or consequences of what we do, and in fact to demote intention in the calculus of oppression altogether, on the theory that what we do not what we think is ultimately what sustains structures of oppression.

Hers is a performative theory for countering oppression. Indeed it is a performative theory of oppression, one in which many different actors play roles. It is attractive precisely because it links the micro and the macro, the individual and the structural, and because it imagines how the wrongs in which we are implicated might be undone and invites us to start the process in a thousand small steps.

The effort to grapple with the relationships between action, processes, institutions and patterns of doing and being is endlessly fascinating at an intellectual as well as a political level. As a legal scholar of a critical bent, I also find Marin’s point of entry persuasive methodologically. For seeing structures as fluid – as made up of the cumulation of individual actions that are encoded in institutions and that are to some degree the result of decisions for which we must take responsibility – resonates with many ‘dereification’ moves central to the Realist and critical traditions in legal analysis.[1] It also mirrors efforts to specify more clearly the links between legal institutions and distributive outcomes.

I want to draw out something that is implicit in the argument of Connected by Commitment as a whole and which is, in my judgment, one of its biggest potential contributions. It is this: at the highest level, the relational framework which animates Marin’s theory of commitment invites us to consider how many different forms of oppression might themselves be linked. So in the spirit of making these connections more evident, let me say a few words about each of the three areas Marin discusses, and suggest how they themselves might be linked or ‘connected’.

Chapter 3: Laws, Judgment, and Political Obligations of Commitment

Marin begins her cases studies of the social practices of oppression with law. But the first thing to note is that law has a dual significance to any analysis of oppression. Not only can law be examined as a social practice itself; it is woven into all the other social practices which might be objects of concern. Hence, the legal imaginary that informs the theory of oppression warrants special attention.

Marin takes as her starting point the ‘deal’ in social contract theory, namely that we agree to put aside private remedies, what she calls ‘private judgment’, to harms we are at risk of suffering in a hypothetical state of nature and subject ourselves to the authority of the state and its laws for the greater benefits that this arrangement confers. But Marin also notes that structurally disadvantaged groups typically experience unequal benefit of these laws, and she poses as a matter of judgment – judgment that endures notwithstanding our collective decision to notionally allocate authority to the state over these matters – the question about how we should respond in such situations.

It seems to me worth observing that by stipulating such an original condition out of which law then emerges, social contract theory establishes a series of presumptions and hurdles about legitimacy and the exercise of authority over which the author must leap in order to make her argument about the ongoing importance of individual discretion, decision, judgment and responsibility in the face of oppression. And despite the powerful hold of social contract theory in the Western political imaginary, is also worth noting there are other ways to think of the role of law, ways which do not pose such steep hurdles and which better explain law’s role in putatively ‘organic’ social processes and which therefore allow us to connect law’s contribution to oppression more directly and more completely. Indeed, Marin herself gestures toward these other ways in her discussion of property rights referencing Jenny Nedelsky’s work.[2]

One idea, drawing from social contract theory, is that laws are meant to protect us from our vulnerability to each other. Another idea, drawn inter alia from the American Realist and post-Realist legal traditions, is that laws are one of the mechanisms by which our vulnerability to each other is itself constructed. Not only is it that case that some suffer unequal and/or inadequate protection from the law, because for example laws are differentially enforced or applied with respect to different groups, or because the form in which legal norms are institutionalized works to the disadvantage of specific groups (think drug laws, for example). The law is implicated in oppression in myriad other ways; indeed, the law can itself be a mechanism of oppression. Put otherwise, ‘protection’ is only a subset of the things that law does in practice: law allocates powers, risks, costs, rewards and responsibilities; it provides incentives and structures behaviour, hovering in the background influencing private choices; and it interacts with social and customary norms – think racial and gender norms, for example – both undermining and reinforcing them in a range of competing and conflicting ways.

A caution is therefore in order when thinking about law’s relation to oppression. This ‘alternative’ reading of law’s operations and processes allows us a vantage point from which to assess how legal rules, decisions and institutions might be related to the sharing of benefits and burdens of our mutual vulnerability and interdependence, one of the key preoccupations in Connected by Commitment. But it also reveals that the relationship between law and inequality is manifold and complex. Determining which laws are, in Marin’s words, ‘implicated in sustaining or instituting group oppression’ and which should therefore be resisted or subverted turns out not to be a simple task. Au contraire, practices we deem oppressive typically are supported by a complex legal infrastructure. Peering into the infrastructure, we should expect to find myriad laws, norms and legal institutions at work, some of which while facially neutral routinely generate unequal results and others of which we favour for some purposes but which in particular contexts contribute in substantial ways to situations of inequality and oppression.

Marin doesn’t address these complexities, nor should she be expected to do so; her major objective is merely to establish that a commitment-based model of relationships generates an obligation to undermine the legal relations that we observe to be unjust. To reiterate the basic point, however, alternative viewpoints permit us to see that law operates much as, under her model, do social practices themselves, because legal rules, norms and institutions organize social practices, and do so in relational ways.[3] This fact alone makes them highly congenial to Connected by Commitment, as they help explain phenomena that liberal theories of law leave obscure.

Chapter 4: Care, Oppression, and Marriage as Commitment

Marin questions reform proposals for contract marriage and minimal marriage, in which persons can disaggregate marital rights and assign them to different persons, for reasons that are central to her argument as a whole: neither reflects the open-ended nature of the marriage commitment or recognizes the independent value of ‘flexibility’, which Marin defines as the ability to judge which activities and forms of care are necessary and appropriate at different times and to adjust accordingly.

There is surely extra value applied by open-ended obligations of care in familial and household arrangements. And it is well-documented that the provision of such care on a long-term basis both poses financial risk to, and exacts financial penalties from, those who do it to the exclusion of or in addition to paid work. Nonetheless, the ability to use legal instruments to reconstruct intimate relationships is not inherently bad. Indeed it may be essential, at least to the extent that any of the oppression or inequality we want to address is located in the standard, binary form of marriage relationship itself and, to recall the previous point, that binary form is directly or indirectly supported by marriage rules themselves. It may even be appropriate to limit the extent of the commitment in some contexts, as well as to provide ways to exit from relationships. In addition, there is a powerful case for both expanding and diffusing the performance of care obligations beyond the nuclear family and diversifying the intimate relationships which are recognized as containing valuable forms of care.

Perhaps, then, the underlying problem here is the non-recognition or devaluation of care relative to other forms of work, notwithstanding the fact that every single one of us depends on care at crucial moments, including the beginning and end of life. If so, one reform strategy is to link home to work and note that the costs of care are experienced ‘out in the world’ not just at home, while the benefits of care are not limited to intimate partners and others who directly receive it, but extend to many others as well. Indeed, immense benefits to others flow from the privatization of care in general, because of the externalization of costs and contributions from other productive activity, public and private that it permits. Marriage laws can help remedy the resulting inequality to caregivers to some degree after the fact, but they won’t ‘fix’ it on their own. Rather, we must connect care and marriage to the discussion of work writ large. Put otherwise, there is a natural – indeed essential – linkage between the analysis of oppression in care and marriage and its analysis in the context of work.

Chapter 5: Labour Relations and the Politics of Commitment

Here, Marin’s starting point is that work itself is a collaborative and cooperative venture. As workers we are all connected, a fact which alone creates vulnerabilities (and therefore opportunities and responsibilities). However, the conventional way in which we imagine the organization of work obscures the extent to which we are dependent on each other. And precisely because we don’t imagine workers as nodes within a structure of productive relations, we wrongly assume that individual contributions to what are essentially collective efforts can be disentangled and appropriately valued on an independent basis.

The present evils, as Marin sees them – those which contribute to oppression and inequality in the workplace – are hierarchies, particularly hierarchies and divisions between high and low skill work and the competition for status based on the comparison and valuation of such differences. To remedy this, Marin invites us to flip the lens on this picture and to see skill differences as complementarities, invitations to cooperate and respond to others.

This basic move is, I think, really valuable. And it turns out that law is crucial here too. Marin highlights the role played by property and rights in defining boundaries, between workers and employers of course but also between workers whom she sees as essentially allied against capital despite the differences among them. Note however, that property rights do not merely operate to deny the collective and productive aspects of work, although they often serve this end very well. More specifically, they typically allocate all the returns to work to the property owner, except to the degree that workers are able to bargain successfully for a portion of them. Whether workers can successfully bargain for a more equal allocation of the returns to work – and more control over their time as well – is also a function of law, although more typically not property law but labour relations law instead. In short, there’s a parallel story to be told about law’s role in alternatively creating or impeding a cooperative workplace, one that mirrors the story Marin recounts in sociology and political theory.

The defect that Marin has identified with respect to the current imaginary around work is a critical one, and one that is causing real problems as work becomes progressively fragmented and contractualized in form.[4] The inability to value – or even to see at all – the collective dimension of work and production, that which exists above and beyond the contributions of individuals, is almost certainly leading to massive miscalculations about the efficiency of flexible workplaces. Enhanced employer flexibility to deploy workers when and how they wish is surely connected to the marked increase in income inequality as well as the generalized shift in the distribution of profits from labour to capital visible across the world.[5]

Connected by Commitment invites further reflection and inquiry, by the author, the rest of us, or all of us together, on a number of questions. Among those that seem closest at hand are: must the subversion of oppression always be organized? Might it be spontaneous, like #MeToo? Like Polanyi’s famous countermovement of the social against the ravages created by the ‘self-regulated’ market, could it well up from below?[6]

At the end of the day, Connected by Commitment can be read as an invitation to adopt a relational orientation, both to the world and to the analysis of its problems. And it turns out that the orientation advocated in Connected by Commitment resonates with all kinds of other transformative political and intellectual movements, in areas ranging from Indigenous rights[7] to environmental activism. For this reason alone, Connected by Commitment seems destined to not simply stand on its own, but to provide a new lens on a series of interlinked puzzles on our normative and political horizon, puzzles which we shall be working on jointly for the indefinite future.

 

* Professor at the Faculty of Law and the Women’s and Gender Studies Institute, University of Toronto.

[1] See for example Felix Cohen, “Transcendental Nonsense and the Functional Approach” (1935) 39 Columbia Law Rev 809.

[2] Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy (Chicago: University of Chicago Press, 1990).

[3] Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Legal Reasoning” (1913) 23 Yale Law J 16.

[4] David Weil, The Fissured Workplace (2014).

[5] Emmanuel Saez, Striking it Richer: The Evolution of Top Incomes in the United States (updated with 2015 estimates) (https://eml.berkeley.edu/~saez/saez-UStopincomes-2013.pdf); Armine Yalnizyan, The Rise of Canada’s Richest 1% (2010) (https://www.policyalternatives.ca/sites/default/files/uploads/publications/National%20Office/2010/12/Richest%201%20Percent.pdf).

[6] Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (Boston: Beacon Press, 2001).

[7] John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002).