Proximity: the law of ethics and the ethics of law

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The ‘duty of care’ is an unusual obligation. It is not the outcome of an agreement founded on self-interest, like a contract. It is not a duty owed to the community as a whole and acted on by the State, like criminal law. It describes a personal responsibility we owe to others which has been placed upon us without our consent. It is a kind of debt that each of us owes to others although we never consciously accrued it. Thus it raises, in a distinctly personal way, one of the oldest questions of law itself: ‘Am I my brother’s keeper?’ What does it mean to be responsible? This is not a question that is easier to answer for us than for Cain. In recent work, of which this essay presents an aspect, I have argued that the idea of responsibility articulated in the law of negligence comes from what might be termed our literal response – ability: it implies a duty to respond to others stemming not from our abstract sameness to others, but rather from our particular difference from them.1 Responsibility is not a quid pro quo – it is asymmetrical, a duty to listen to the breath of others just in so far as their interests diverge from our own.

In order to develop this argument, I have become increasingly drawn to the work of the philosopher of ethics Emmanuel Levinas who was until recently mainly of interest to a small but influential circle of French thinkers including Maurice Blanchot, Jean-Paul Sartre, and Jacques Derrida. Now he is becoming rapidly better known. His two main works, Totality and Infinity and Otherwise Than Being, or Beyond Essence,2 offer a reconstruction of human selfhood away from questions of identity and ego and towards an ‘ethics of the other’. I cannot promise the reader an easy ride, but as recompense Levinas offers a sustained meditation on the relationship of ethics, responsibility and law, and – remarkably – he does so using precisely the language of the duty of care. Here then is a philosopher, largely unknown to legal theory, who at last speaks the language of torts.

Although we shall see that Levinas has very much to say that is pertinent to our thinking about responsibility, neighbourhood and duty, he is by no means without his problems, and it is with these problems that the current essay is particularly concerned. The first difficulty lies in his insistence on treating the ethical realm, in which responsibility is unique, unbidden and infinite, as entirely incommensurable with the political realm, in which responsibility is made subject to definite, finite rules, and moreover subordinated to the pragmatic demands of the State and social policy. Questioners like Derrida, Rose and Habermas have wondered how it could ever be possible for Levinas’ notion of an ethics of absolute and infinite responsibility towards others to communicate with a political world inevitably governed by regulation on the one hand and imperfection on the other.3 To compound the problem, Levinas’ own limited forays into the application of his ethics to political questions have not been entirely convincing.4

The second difficulty lies in Levinas’ own relative silence on the question of law. In his major works, he says very little about the relationship of law to the ethics of alterity, and what he does say suggests that he thinks of law as an entirely positivistic, codified, and rule-bound structure. In other words, law seems for Levinas to be synonymous with politics and justice synonymous with rules.5 Yet this conception fails to capture the way in which law serves as a separate modality of thinking about social relations, and is not merely politics by other means.6 As Sarah Roberts writes, ‘if one takes seriously Levinas’ claim that asymmetrical ethical responsibility is the origin of justice then one must also reject Levinas’ suggestion that justice [merely] involves viewing persons and responsibility as comparable and symmetrical’.7 Furthermore, as the common law of negligence makes abundantly clear, neither can we simply characterise law as the application of ‘rules’. Drawing on Derrida and on other recent work on Levinas,8 I offer, in this essay, a brief account of law – particularly in reference to the fluidity and ambiguity that marks the common law discourse on the ‘duty of care’ in the law of negligence – that both captures and justifies its distinct form, and does so in a way that in fact makes a more convincing case for the possible relevance of Levinas’ ethics to legal doctrine, than his own much narrower conception of law can alone provide. Where in particular do we see in action those structural resources of the common law that allow it to acknowledge on the one hand the fluid and responsive nature of responsibility, and on the other give voice to an ethical component to the law? My argument is that one example is to be found in that much-maligned creature of the Australian High Court, ‘proximity’.

Once again, we find that Levinas was there before us. For Levinas, ‘proximity’ is the key word that implies our ethical relationship to others.

The relationship of proximity cannot be reduced to any modality of distance or geometrical contiguity, or to the simple ‘representation’ of a neighbour; it is already an assignation, an extremely urgent assignation – an obligation, anachronously prior to any commitment.9

Levinas means by proximity something fundamental to who we are and why we have a responsibility to others; something which furthermore cannot be reduced to logic, knowledge or rules. Proximity is an experience, emotional and bodily, and not an idea.10 Incarnate in us all, its implications ‘exceed the limits of ontology, of the human essence, and of the world’.11

Astonishingly, in the period from 1984 to about 1998, the Australian High Court was on the same track. Particularly in the influential judgments of Justice William Deane, the Court sought to give content to the duty by reference to the concept of proximity:

I have, in Jaensch v Cofey and Heyman, endeavoured to explain what I see as the essential content of the requirement of neighbourhood or proximity which Lord Atkin formulated as an overriding control of the test of reasonable foreseeability. So understood, the requirement can, as Lord Atkin pointed out, be traced to the judgments of Lord Esher M.R. and A.L. Smith L.J. in Le Lievre v Gould. In my view, that requirement remains the general conceptual determinant and the unifying theme of the categories of case in which the common law of negligence recognizes the existence of a duty to take reasonable care to avoid a reasonably foreseeable risk of injury to another.12

The notion of proximity was a controversial jurisprudential development that led to innovation after innovation in the Court’s judgments. When I first read these judgments it seemed to me that the court was groping towards a new idea of the nature and the legitimacy of our ideas of responsibility. Then when I read Levinas some years later, I came to appreciate much more clearly what they might have wanted to say and why it mattered. The conjunction of these two discourses, in their own ways so uniquely positioned to reflect deeply on the essence of our responsibility to others, and the connections between the language they each used, seemed to me so remarkable as to demand a sustained analysis. Proximity in law, seen as a way of describing those to whom we owe a duty such that ‘I ought reasonably have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’,13 came in for trenchant criticism. Its vagueness and its irrelevance were attacked alike.14 Indeed, following the departure of Deane J from the bench, the concept rapidly declined in significance. In 1998, Kirby J concluded ‘it is tolerably clear that proximity’s reign in this Court, at least as a universal identifier of the existence of a duty of care at common law, has come to an end’.15 Since this Thermidor, and consequent upon several changes in personnel, the Court has sought to limit and even undermine its previous jurisprudence. It has done so in two ways: on the level of substance, by returning to a more limited and voluntaristic conception of responsibility; and on the level of method, by attempting to explicitly limit what is sometimes decried as ‘judicial activism’. Proximity was seen as central to both these apparent problems.

What Levinas brings to this discussion is a very detailed understanding of proximity as a kind of relationship that gives rise to responsibility, that cannot be codified, and yet must inevitably find expression in words (legal or otherwise) whose function is to define and to conceptualise. In the period under review, the High Court of Australia struggled with and eventually failed to come to terms with the very same paradox, rejecting proximity just because it was ‘a legal rule without specific content, resistant to precise definition and therefore inadequate as a tool … ’16 Levinas points to the way in which the Court has missed the point. The challenge of this essay is to insist on the role of this paradox in the law – the value of an idea which is not reducible to a rule – and to demonstrate that proximity’s incapacity of definition is the very source of its ethical power. In other words, with the help of Levinas we can begin to see, on the level of substance, the outline of a different idea of responsibility; and on the level of method, that the charge of activism misunderstands the very nature and role of ethical judgment in law. Furthermore, these two ideas – what it is to be responsible and what it is to judge - are in fact integrally connected.

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