Abstract
In this paper, I examine whether agents who commit testimonial injustice are morally responsible for their wrongdoing, given that they are ignorant of their wrongdoing. Fricker (Epistemic injustice: power and the ethics of knowing, Oxford University Press, Oxford, 2007) argues that agents whose social setting lacks the concepts or reasons necessary for them to correct for testimonial injustice are excused. I argue that agents whose social settings have these concepts or reasons available are also typically excused, because they lack the capacity to recognise those concepts or reasons. Attempts to trace this lack of capacity back to an earlier culpable wrongdoing will often fail, due to there being no point at which these perpetrators knowingly chose to develop their prejudices. Attempts to ground culpability under some Attributionist accounts of moral responsibility will also fail. This is because perpetrators’ lack of awareness of what they are doing makes it the case that they are not expressing objectionable evaluative judgments in the way required for blameworthiness. Finally, I argue that our temptation to blame agents who commit testimonial injustice is not completely unfounded. Appealing to Watson’s (Philos Top 24(2):227–248, 1996) attributability/accountability distinction allows us to make sense of how some responses to the jurors are appropriate, despite their being excused.
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Notes
As a way of motivating this description of accountability and blame, let me say something about a common competing account. I take blame’s focus to be perpetrator-centred in that it is addressed to perpetrators for failing to meet moral demands. Some philosophers think that blame is primarily victim-centred, in that blame itself makes demands of the perpetrator in order to protest the meaning of the wrong. This protest need not actually be communicated to the perpetrator, however. It is enough that this blame is communicated to the moral community, or to one’s self privately (Hieronymi 2001; Smith 2013; Talbert 2012). These accounts argue that blame is a demand for acknowledgment of wrongdoing, a demand to have acted differently, or a demand for justification. Each characterisation faces an objection. First, blame can’t just be a demand for apology, because we often appropriately blame people even when they have acknowledged wrongdoing and apologised, making the supposed content of our blame in these cases infelicitous. Second, blame can’t be a demand to have not committed wrongdoing, because the wrongdoing already occurred which makes such demands literally impossible to meet. Third, one can’t say blaming involves demands for justification, because in order for the blame to be appropriate one presuppose blameworthiness, that is, that no justification is available. Likewise, blame can’t be a demand for an excuse, since we do not demand excuses. See Nelkin (2015).
A number of forward-looking accounts will have straightforward grounds for arguing that perpetrators of testimonial injustice are blameworthy. For example, McGeer (2013) argues that blame communicates that we don’t find an agent’s actions acceptable, drawing them into an exchange which helps find a shared sense of the wrong and scaffolds their moral agency. Fricker’s (2016) own account argues that blame functions as a proleptic mechanism, having the aim of inspiring wrongdoers to feel remorse for what they have done.
The fact that a stereotype or bias is false and negative is not enough to render it prejudicial. This is because someone could fulfil all of their epistemic duties and yet still develop negative stereotypes due to epistemic bad luck. According to Fricker, what distinguishes prejudicial stereotypes from “innocent mistakes” is how responsive these stereotypes are to evidence. If Solomon is raised to believe that women are intellectually inferior to men in an environment where he sees lots of evidence for this, but revises this belief when he goes to college and sees lots of competent women, then his prior stereotype will be a non-culpable mistake (example from Arpaly 2002).
Such contexts include understanding agency (Mayr 2011), explaining action (Small 2017; Smith 2003), reconciling talk of capacities with talk about determinism and free action (Clarke 2009; Franklin 2011; Vihvelin 2004), and understanding the semantics and truth conditions of counterfactuals (Lewis 1973).
This characterisation of the capacities literature is somewhat simplified, but considerations favoring further distinctions, such as between wide and narrow capacities, do not affect my argument. As an aside, it is reasonable to describe Greenleaf as either lacking the capacity or opportunity to avoid wrongdoing. Knowledge and possession of concepts are features of agents, which counts in favor of describing Greenleaf as lacking the capacity to avoid wrongdoing. But in describing his context, Fricker is trying to emphasise how he cannot access the relevant concepts, treating them as something external to him, which is why he is described as lacking the opportunity to avoid wrongdoing. .
Some philosophers resist such descriptions because it seems to multiply capacities beyond necessity (Locke 1973; Small 2017). They argue it is simpler to say that I have one capacity, which is to walk, that I can exercise in a number of different ways and places. But whether I have the specific capacity to walk down a particular street matters greatly if I am being blamed for failing to help someone on that street. The fact that I have a general ability to walk is much less relevant. For our purposes, we need to index talk about capacities to a particular situation and context. The fact an agent typically has a general or specific capacity to ϕ in many other contexts doesn’t guarantee they have the specific capacity to ϕ in this particular context.
There don’t seem to be any theories of ability which will clearly distinguish Austin from the jurors, explaining why the former is excused but the latter are culpable. See Clarke (2015) for a summary of recent work in the philosophy of ability. .
These analyses then have to grapple with questions surrounding masks (Fara 2005), finks, deviant causal chains (Wilson and Shpall 2008), impeded intentions (Lehrer 1968), and how to specify which possible worlds are relevant or distinguish capacities from other restricted possibilities (Jaster 2019).
See Vargas (2005) for examples of how it is difficult to trace culpability back to a prior event.
While Smith (2015) and Scanlon (2008) both count as Attributionists on this picture, they endorse quite different conceptions of what it means for an agent to be morally responsible and blameworthy. Scanlon takes agents to be blameworthy when their intentions or attitudes are faulty by the standards of a relationship, and Smith takes agents to be morally responsible for something when it is intelligible to ask them to answer to us for that thing. See Levy (2005), Nelkin (2015) and Wolf (2011) for details on the differences between these conceptions of responsibility and the one adopted in this paper. I’ll set Smith and Scanlon’s accounts aside and focus on Talbert’s (2008) version of Attributionism.
If they noticed the discrepancy and simply didn’t care enough to try switching intellectual gear, this would be blameworthy as this intentional failure to switch would express an objectionable lack of concern with Robinson’s well-being. It could be argued that the evidence against Robinson was so flimsy that it simply isn’t plausible that the jurors failed to notice any discrepancy and this makes them blameworthy. One might also take the fact that the jurors took a long time in their deliberations to be evidence that they were experiencing cognitive dissonance, and thus capable of taking the first step necessary to correct their perceptions.
A hearer might still take the speaker to be less reliable and trustworthy than they would have had the speaker belonged to a different social group, for instance.
Talbert (2008) notably argues against appealing to counterfactuals to show that a judgment is not objectionable and thus not blameworthy. For example, if there is no such counterfactual in which a psychopath does the right thing for the right reasons (because they lack the capacity to understand moral reasons), this does nothing to show that their wrongdoing expresses a judgment that is any less objectionable than the judgment expressed by a wrongdoer who does possess the capacity to do otherwise. Interestingly, this means that we cannot appeal to similar counterfactuals to show that a particular judgment is objectionable either. That the jurors would have believed Robinson had he been white does nothing to affect the content of the jurors’ judgments or awareness of regarding certain circumstantial facts in the actual sequence of events, and in that sequence, the jurors are genuinely unaware that Robinson is innocent.
For more detail on the distinction between behavior matching, reflecting and expressing objectionable attitudes, and the importance of making such distinctions, see Levy (2011, 2013). In some places, Talbert seems to implicitly endorse treating actions as blameworthy if they merely reflect objectionable attitudes (e.g. Talbert 2011, p. 151). In personal correspondence and in later work on moral luck, Talbert (2019) defends the position that agents are only ever directly blameworthy for their attitudes, regardless of their actual amount of wrongdoing. While it would follow more straightforwardly from this that agents cannot be blameworthy for testimonial injustice qua testimonial injustice, this requires adopting certain commitments regarding moral luck that may be controversial. If we want to set aside debates about moral luck, and use his first defense of Attributionism (Talbert 2008) in order to evaluate accountability blameworthiness for epistemic injustice as a distinct kind of wrongdoing, then perpetrators of epistemic injustice will be excused, despite the account's emphasis on something like quality of will.
This seems to be a consequence of the fact that, as Pohlhaus (2012) and Medina (2012) point out, hermeneutical injustice is also present in the courtroom. Pohlhaus argues that the jurors “are using epistemic resources that do not allow for the intelligibility of what Robinson has to say” (p. 725), and Medina notes that the idea of a white woman falling for a black man is unimaginable, due to the limiting social imaginaries. The jurors lack the resources to make sense of Robinson’s experiences and testimony, and to some extent, so does Robinson. Thanks to an anonymous reviewer for this point.
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Acknowledgements
Thanks to Dana Nelkin, Caroline West, Ayana Samuel, Isabelle Wentworth, Hannah Tierney and an anonymous reviewer for advice and helpful comments on earlier drafts. Thanks also to audiences at the 2018 USC/UCLA postgraduate conference held at the University of Southern California, the Aristotelian Society’s 2018 Open Session held at the University of Oxford, and the 2019 Current Trends in Social Epistemology conference held at the University of Melbourne.
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Piovarchy, A. Responsibility for testimonial injustice. Philos Stud 178, 597–615 (2021). https://doi.org/10.1007/s11098-020-01447-6
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DOI: https://doi.org/10.1007/s11098-020-01447-6