Stefano Bertea is an internationally renowned jurisprudent specialising, amongst others, in issues of normativity. His new book, A Theory of Legal Obligation, is a major contribution to the academic debate on the nature, scope and working logic of obligationary dynamics within the legal dimension. The book's main strength lies in the effective combination of descriptive analysis and critical input. To this, one must add the interdisciplinary spirit of Bertea's reflections, as well as the enjoyable prose that characterises the discussion (a general feature of his work).
The bulk of the book is divided into 10 chapters. The discussion unfolds neatly, commencing with a philosophical description of the concept of obligation simpliciter. It subsequently moves to offering an outline of the main theories of legal obligation whose appraisal proves beneficial for an appreciation of the author's own views. Having set out the latter, the author expounds some further reflections concerning pivotal methodological issues. Concluding remarks follow.
Both the descriptive and constructive parts of Bertea's analysis revolve around an efficacious distinction between “empirical” and “normative” models of legal obligation (Chapter 2). Simply put, the empirical model “seeks to explain legal obligation entirely in terms of the way people in fact behave or are likely to behave when they are said to be under an obligation” (p. 47). According to Bertea, this model presents itself under “two different basic variants” – namely, the “predictive account and the imperatival account” (p. 48). The former focuses on the “likelihood of our being sanctioned for disobeying the behaviours described in a legal system” (p. 48). This account is the one characterising legal realist conceptualisations “à la [Oliver Wendell] Holmes [Jr.]” and “the law and economics movement” (p. 49). “[T]he imperatival account”, instead, “ties obligations to what the law requires us to do” (p. 50). This “idea of a legal requirement”, Bertea explains, “is in turn tied to the idea of a sanction, whether real or potential, since those who set out these requirements are usually in a position to enforce them” (p. 50). Jeremy Bentham and John Austin are the “paradigmatic” representatives of this line of thought.
As the name suggests, the normative model is instead “conceptually linked with what we ought to do, where ‘ought’ at least implicitly carries a value judgement of right and wrong” (p. 54). This simply means “that implicit in a claim that something is obligatory and so ought to be done is the idea that it is the right thing to do” (p. 54). Four accounts fall under this model: the “formal account” (pp. 54–58); the “social practice account” (pp. 58–61; Chapter 3); the “interpretivist account” (pp. 62–64; Chapter 4); and the “reason account” (pp. 64–71; Chapters 5, 6 and 9). Bertea divides the latter account further into “the ‘conventionalist reason account’, the ‘exclusionary reason account’, and the ‘robust reason account’” (p. 65). It is not my intention to repeat here what features, on Bertea's reading, belong to each of these accounts as that would make my review a merely descriptive appraisal – and book reviews are not meant to offer just that. All I will say is the following. First, Bertea satisfactorily explains why the imperatival, predictive and formal accounts prove inadequate for the model of legal obligation he envisages. Second, he effectively associates with each account leading legal theorists (or philosophers), thereby helping the reader to get a better grasp of each model. Regarding this second point in particular: as representatives of the social practice account, Bertea lists HLA Hart, Jules Coleman, Scott Shapiro and Christopher Kutz; for the interpretivist account, amongst others, he discusses Ronald Dworkin and Nicos Stavropoulos; for the conventionalist reason account, Andrei Marmor; for the exclusionary reason account, John Finnis and Joseph Raz; and for the robust reason account, Antony Duff and Roger Brownsword. Importantly, Bertea does not limit himself to elucidating the main tenets of each account. He also identifies what, in his view, are their shortcomings. Finally, in outlining the above, Bertea sapiently envisages, and engages with, some potential objections which might be raised against his views. In so doing, he sets the stage for the presentation of his own theory of legal obligation in Chapters 7–9 – a theory which is “irreducible” to the accounts “theorized within contemporary legal philosophy” (p. 199). For all these reasons, there is a great deal to learn from the book; it is a precious reading not only for specialists, but also for philosophy and law students exploring issues of normativity and/or regulatory processes jurisprudentially.
This leads me to what I see as the central element of Bertea's analysis, namely, his contention that “if we are to arrive at an insightful account of legal obligation, we have to move beyond the classic debates in jurisprudence and engage with theories, ideas, and discussions in practical philosophies” (p. 284). Accordingly, and as mentioned earlier, Bertea takes a lateral step from such debates and draws from philosophical discourse to set the parameters of the theory he proposes. Specifically, it is with respect to the concept of obligation as such, or “obligation simpliciter” (p. 14), that Bertea takes his insight from philosophical inquiry. This he does by philosophically “isolating the concept of obligation … [namely by] determining the concept of obligation understood as a concept with its own distinctive traits” (p. 14). The whole of Chapter 1 is dedicated to this fundamental, preliminary endeavour aimed at “captur[ing] a rationally defensible understanding of obligation” (p. 27). Having framed the concept of obligation thus, namely its “essential components” (pp. 24–40; see also p. 248), Bertea adds to it some “distinctive” features characterising its legal variant (see e.g. pp. 9, 263). On this view, legal obligation is categorised as “a garden-variety kind of obligation” (p. 225). Chapter 1 opens a circle which is then closed in Chapter 10, where Bertea outlines and defends at some length his analytical strategy.
An acute and thorough scholar, Bertea is aware of the limits (as technical confines) of theoretical reconstructions in general, and his own in particular (see e.g. pp. 14, 201, 318–25). However, his interdisciplinary approach is appropriate and works well for the model of legal obligation he sets forth. I have nothing to object to it: form-wise, it is well-presented; methodologically, it is well-thought; substantively, it is coherent. In short, I found it to be, as Bertea himself says, “sound and comprehensive” (p. 43), or “theoretically tenable” (p. 44). Rather, my reservations have to do with the very theory he fashions. Accordingly, my criticism, to be clear, is not that Bertea's theory of legal obligation is not well-supported or incoherent. It is that it re-proposes, although in a different light and with undoubtedly original ingredients, an understanding of what law and legal obligations are all about which, in my view, ought to be rejected.
For the sake of argument, let me briefly expound Bertea's conception of legal obligation. Assuming I have understood it correctly, Bertea theorises legal obligation as a “normative claim” (p. 199) whose “mandatory” (p. 223) or “binding force” (pp. 231, 294) is constitutively embedded with or “grounded in” practical rationality. The type of practical reason Bertea hinges his notion of legal obligation on is both justificatory and intersubjective (see e.g. pp. 205–06, 212–29, 238–47). More precisely, for Bertea legal obligation is “a practical reason endowed with some enhanced force – mandatory force – to the effect that the supported action is compellingly justified (and indeed demanded) as a matter of intersubjective reasons” (p. 225). This account Bertea calls “revisionary Kantian conception” (see e.g. pp. 9, 352). The name is due to the theory partly drawing from a Kantian understanding of (legal) obligation. In particular, on the one hand, “it preserves two insights [which the author] take[s] to be central to, and fundamentally constitutive of, Kant's treatment of obligation” (p. 232). These are: “the thesis of the oneness of obligation across different practical domain and the thesis of obligation as something necessitated by practical rationality” (p. 232). On the other, and as is also seen below, “it does not offer a faithful rendition of Kant's conception of legal obligation but rather recasts it, while still preserving its spirit and essential contentions” (p. 232). Both aspects are discussed at length in Chapter 8.
In a nutshell, my criticism is that an account of legal obligation(s) which resorts to “reasons for action” masks what makes us who we are in our own individuality. Being a commeasuring faculty which defines humankind as a species, reason distracts us from our experiential immanency and uniqueness. Attaching reasons to action(s) simply means transforming the latter into behaviour – a captivated and standardised (rather than spontaneous) form of conduct. Action, in short, is never as rational, nor predictable, as behaviour is. True, Bertea distances himself from “rationalist version[s] of reductionism dissolving legal obligation into the force of practical reasons” (p. 232). He also aptly acknowledges practical rationality's abstractness (see e.g. pp. 298–99; cf. p. 293). However, it seems to me that, despite his cautious approach and notwithstanding the emphasis he places on the structural link between normativity and human experience, Bertea's notion of legal obligation subscribes to (and, arguably, pushes further) the de-individualising properties (and effects) characterising the “reasons for action” analytical framework (see e.g. pp. 9, 210, 217–25). The passages on how his conception of legal obligations embraces those philosophical attempts at humanising i.e. making valid for “the whole of humanity” (p. 271, emphasis in original) Kant's practical philosophy bears weight to this contention.
For my own part, I have been trying to show the relevance of this argument for jurisprudential inquiries (also) by drawing from the Promethean myth as expounded by Emanuele Severino and arguing that the same de-individualising properties characterise knowledge's objectification of life. In this sense, while Bertea's theory is analytically solid, one cannot avoid thinking that it would have benefited from an engagement with recent scholarship on the biopolitical dimensions of obligationary dynamics. A consideration one is induced to make, especially in light of the philosophical nature of Bertea's analysis. I am particularly thinking of Giorgio Agamben's Opus Dei: An Archaeology of Duty (Stanford, CA 2012). A reflection on Agamben's usage of the term “behaviour” in his critique of Hans Kelsen's Kantian views on sovereignty would, arguably, be a good start for such an inquiry (which could then move on to considering Agamben's claims in Karman: A Brief Treatise on Action, Guilt, and Gesture (Stanford, CA 2018)).
At this point, it could be noted that Bertea not only rejects Kelsen's notion of legal obligation, but is also wary of the limits of, and perils inherent in, any “legal rationalism” (p. 235) and “ethical rationalism or legal idealism” (p. 236). In fact, he unequivocally describes his account as being an instance of “ethical constructivism” (p. 269) – a specification he makes to clarify that, on his reading, the justificatory practice legal obligation depends upon primarily allows the “agent [to] construct a critical framework within which to reason about action” (p. 269). Coherently, “while the law is continuous with practical rationality, and so cannot be equated with the mere institutional enforcement of rules … it cannot be collapsed into practical rationality, either” (p. 298). In other words, while being dialectically related (or “interconnected” (p. 296)), there is much more to law (including its regulatory prerogatives) than what constitutes the realm of practical rationality. The long remark made at footnote 16 of Chapter 7 and the clarifications expounded in Chapter 9 are particularly instructive in this regard. These objections notwithstanding, there seems to be no escape from the consideration that “even when legal obligations go beyond the propositions of practical rationality”, as they sometimes do, “they will not be able to bind us if they come into conflict with those propositions” (p. 293).
That having been said, my own reservations regarding the broad “reasons for action” theme should not be taken as implying or suggesting that Bertea's theory of legal obligation is flawed or does not deserve careful attention. In fact, and as stated above, qua a theory, I believe it to be a serious – indeed fundamental – contribution to the literature on this complex topic and on issues of normativity broadly understood.
