Epistemic injustice in criminal procedure (original) (raw)
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Editorial of dossier “Epistemic Injustice in Criminal Procedure”
Revista Brasileira de Direito Processual Penal, 2023
There is a growing awareness that there are many subtle forms of exclusion and partiality that affect the correct workings of a judicial system. The concept of epistemic injustice, introduced by the philosopher Miranda Fricker, is a useful conceptual tool to understand forms of judicial partiality that often go undetected. In this paper, we present Fricker's original theory and some of the applications of the concept of epistemic injustice in legal processes. In particular, we want to show that the seed planted by Fricker has flourished into a rich field of study in which the concept is used to analyze many different phenomena in law, not always following the original characterization
Epistemic Injustice: An Analysis (Draft)
and has important implications not only for the intersection of ethics and epistemology broadly and the epistemology of testimony in particular, but for the epistemology of peer-disagreement, action theory, and self-deception as well. However, though Fricker, at times, gestures at the psychological literature, much of her argument relies on fictional literature and film to illustrate her conception of epistemic injustice. For example, she takes the jury's prejudice against Tom Robinson in To Kill a Mockingbird as a paradigm case of testimonial injustice. In this fictional story, a white jury could not perceive, even in the face of countervailing evidence, that a black man was innocent of the crime he was accused of. The truth did not fit the jurors' prejudicial perception of the world around them, and so they rejected Tom Robinson's truthful testimony as false, rather than alter their own false beliefs. While Fricker's account is intuitively plausible, her theoretical claims have empirical implications and hence we must ask: Does prejudicial bias actually have the sorts of epistemic consequences she outlines? Are her recommendations for reducing epistemic injustice supported by the data we have on reducing bias? To understand the accuracy and value of Fricker's account, these questions need to be answered.
Epistemic injustice" is a fairly new concept in philosophy, which, loosely speaking, describes a kind of injustice that occurs at the intersection of structures of the social world and knowledge. While the concept was first put forward in the 1990's, the most significant publication on the topic is Miranda Fricker's book Epistemic Injustice: Power and the Ethics of Knowing, which was published in 2007. 1 Since then, there has been something of an explosion of literature on the topic of epistemic injustice. 2 However, the concept of epistemic injustice is one that is poorly understood. While Epistemic Injustice offers extensive analysis of some aspects of epistemic injustice, it does a poor job of explaining, overall, what epistemic injustice actually is, limiting most of that explanation to a small section in the introduction of the book. The way that epistemic injustice is presented in this section is highly ambiguous, with key terms being loosely defined (if at all), and the necessary and sufficient conditions of something being an epistemic injustice are left unclear. This remains unresolved in the literature beyond Fricker's account: while there has been some progression in how we think about epistemic injustice beyond what Fricker's work provides us with, there has been a general failure to adequately recognize and address the ambiguities of the Frickerian account of epistemic injustice. In this thesis, I aim to show that, despite superficial impressions to the contrary, the Frickerian account is fundamentally ambiguous and incomplete. Moreover, later attempts to address these issues by subsequent theorists have failed. This project, however, is not in vain. I conclude by proposing a new account of epistemic injustice that overcomes these problems with the Frickerian account, offering a way of understanding epistemic injustice that is both philosophically satisfying and practically useful. 1 Epistemic Injustice has been cited over 2600 times as of 2019 (according to Google Scholar). All other works on epistemic injustice have citation numbers in the hundreds or below (as of 2019, according to Google Scholar). 2 Including, but not limited to, over 300 papers in the "Epistemic Injustice" category on PhilPapers as of 2019; and the publication of The Routledge Handbook of Epistemic Injustice (2017).
CLOSING THE CONCEPTUAL GAP IN EPISTEMIC INJUSTICE
The Philosophical Quarterly, 2023
Miranda Fricker’s insightful work on epistemic injustice discusses two forms of epistemic injustice— testimonial injustice and hermeneutical injustice. Hermeneutical injustice occurs when the victim lacks the interpretative resources to make sense of her experience, and this lacuna can be traced down to a structural injustice. In this paper, I provide one model of how to fill the conceptual gap in hermeneutical injustice. First, I argue that the victims possess conceptual resources to make sense of their experiences, namely phenomenal concepts. Second, I show how one might work the way up in a two-step process from a subjective, phenomenal concept to a novel, public concept. Finally, I discuss the conditions that have to be met for this process to be successful. The resulting model shows a way how the victims might alleviate hermeneutical injustice by developing novel concepts, given that the dominant group does not care about their predicament.
Hypatia
David, an asylum seeker from Honduras, wanted to ask for asylum in the US, but, he said, "the agents didn't listen. They just gave me documents to come back to a court date in December." David is just one of thousands of asylum seekers sent back to Mexico under the Migrant Protection Protocols, which were adopted by the United States Customs and Border Patrol on January 28, 2019 (more commonly known as the "Remain in Mexico" policy). According to these protocols, Customs and Border Patrol agents can send those seeking asylum at the United States southern border to Mexico until their case is heard in court (DHS 2019). In this context, most asylum officers see their jobs as "trying to weed out the fakers, the ones trying to game the system" (O'Toole 2019), meaning that they enter all interactions with asylum seekers with the presumption of distrust. Consequently, the experience of a Honduran woman-who told authorities that she could not wait in Mexico for her court date because it was unsafe for her to do so, only to have the agent not believe her and send her back to Mexico where she was kidnapped and raped by multiple assailants (Rose and Smitherman 2019)-is all too common. Countless injustices are engendered by this policy, with epistemic injustices prominent among them. Detailing how this is so may seem overwhelming, though, especially since the literature on immigration justice rarely intersects with that dealing with epistemic injustice. And, even more challenging, someone may not know where to begin since the discussion on epistemic injustice has grown so fast since Miranda Fricker's book, Epistemic Injustice: Power and the Ethics of Knowing, burst onto the scene (Fricker 2007). But now, with the publication of the excellent, well-written, and beautifully compiled Routledge Handbook of Epistemic Injustice, there is a book that discusses the principal themes of epistemic injustice, highlights numerous connections to other academic literatures and contemporary debates, and opens the door to potential areas of further study that will make projects-such as identifying and resisting immigration injustices in US policy-much easier. In order to accomplish these goals, the anthology is divided into five parts. The first section-core concepts-consists of various essays that invite novice and experienced readers alike into the conversation. Here, the section combines essays that explain the main concepts in the literature, such as epistemic injustice (Pohlhaus, Jr.), testimonial injustice (Jeremy Wanderer), and hermeneutical injustice (José Medina); connect the debates to other traditional philosophical discussions, such as those about trust
Locutionary disablement and epistemic injustice
2016
In this paper, I investigate how the notion of epistemic injustice relates to two distinct, though not incompatible, models of the phenomenon of silencing: epistemic and linguistic. I argue that a linguistic model of silencing can be used to elucidate the nature of hermeneutical injustice-a type of epistemic injustice identified by Miranda Fricker. I put forth my own reformulation of the linguistic model of silencing as locutionary (as opposed to illocutionary) disablement, when it occurs in cases of hermeneutical injustice, and I argue that this reformulation can respond to the criticism that Fricker's construal of hermeneutical injustice falls prey to charges of epistemic hegemony. I conclude by suggesting that this form of silencing, which has its origins in a history of political domination and dehumanization, is connected to a third, distinctive form of epistemic injustice (beyond testimonial and hermeneutical injustice), which concerns the unfair distribution of the burdens of communication between members of differently situated social groups. iii
Introduction to Special Issue – Collective Wrongdoing and Epistemic Injustice (2020)
Social Epistemology, 2020
In this introduction to the special issue "Epistemic Injustice and Collective Wrongdoing" we show how the eight contributions examine the collective dimensions of epistemic injustice. First, we contextualize the articles within theories of epistemic injustice. Second, we provide an overview of the eight articles by highlighting three central topics addressed by them: i) the effects of epistemic injustice and collective wrongdoing, ii) the underlying epistemic structures in collective wrongdoing, unjust relations and unjust societies, and iii) the remedies and strategies of resistance to epistemic injustice. We close by pointing to connections and issues that may motivate further research. Epistemic injustice is often discussed with respect to individuals. But it is not limited to individuals. Most often, individuals experience epistemic injustice because they are members of particular groups and these groups, in turn, also experience epistemic injustice. Indigenous peoples experiencing radical testimonial injustice and hermeneutical injustice in their interaction with courts, prison inmates having their emergency calls systematically silenced, Armenian testimony about the Armenian genocide being oppressed-these are but some instances in which groups experience collective epistemic injustice. The authors in this special issue on Epistemic Injustice and Collective Wrongdoing examine these collective dimensions of epistemic injustice. Their works evince that we cannot fully understand some of the collective wrongdoing that groups experience unless we employ the conceptual tools of theories of epistemic injustice and affiliated theories. Notably, theories of epistemic injustice are not limited to Miranda Fricker's (2007) powerful account of epistemic injustice and its two basic forms, testimonial and hermeneutical injustice, but include further accounts and re