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Fricker’s Testimonial Injustice: A Difficulty
Prepared for the 2014 Annual Meeting of
The Ohio Philosophical Association
(The main text is under 4000 words.)
Winter 2014 Version
In Epistemic Injustice: Power and the Ethics of Knowing (PEK) and in more recent work, Miranda
Fricker sharply elucidates a neglected category of basic wrong having both epistemic and
moral dimensions. These are wrongs the nature of which simply cannot be properly
articulated without reference to, as she puts it, the victim’s “capacity as a knower.”1 I find
myself in pronounced sympathy with her main contentions that there are such wrongs,
including roughly what she calls testimonial and hermeneutical injustices, and with the
though that these have been until recently largely overlooked in mainstream analytic
philosophy. Her work is admirably ethically engaged, both exciting and subtle, and it is of
particular interest insofar as it manages to effectively bridge sub-disciplinary divides. Yet
worries remain.
Here I raise concern about one central and initially attractive thesis that it is
reasonable to draw from PEK and its discussion of testimonial justice. This is the thesis that
justice imposes a duty directly requiring each of us to make sound (prejudice overcoming)
perceptual judgments of the testimony* of our social peers, the violation of which any one
of us would ordinarily be culpable for.2 I argue that as expressed this thought is implausible
given the nature of perception, and reflects a misplaced emphasis. I also show that the
thought is in serious tension with Fricker’s explicit commitments regarding culpability.
1
See Fricker (2007), p. 1 and Fricker (2013), p. 1317.
2
I use the asterisk to distinguish this from ordinary formal testimony, as in official hearings
or courtroom proceedings. Fricker is interested in a more general category of ordinary
communicative interaction that she calls testimonial exchange or more simply tellings.
1 1. The Paradigm Case
Recall the trial of Tom Robinson in Harper Lee’s novel To Kill A Mockingbird. As Fricker
reminds us, Robinson, a black man, is falsely accused of beating and sexually assaulting
Mayella Ewell, a white woman. At trial he testifies as to his innocence. The jury, drawn
exclusively from the white citizenry of the fictional Maycomb Alabama, is presented with
evidence that, on a reasonable construal, proves that Robinson could not have committed
the alleged acts. Indeed he is shown to be physically incapable of having done so. Yet he is
convicted nonetheless; the members of the jury have their judgment radically distorted by
the effects of racial prejudice, resulting in a wrongful conviction.
There are clear injustices here. First, there is cruel and wide-ranging social injustice
on display, as the novel is set in Alabama during the Jim Crow era. Second, there is a gross
miscarriage of the positive system of justice. But neither of these is precisely Fricker’s
concern. The particular injustice that is to count as epistemic, and more specifically
testimonial*, is brought about by the jurors’ not being appropriately open to the truth of
Robinson’s testimony. In her official formulation, the injustice is a wrong done to him,
precisely constituted as a perceptual judgment, arising out of an identity prejudice, and in
which the credibility assigned to Robinson and to his testimony is deficient. She further takes
this testimonial injustice to be systematic and she regards its enactors as culpable.
This case is powerfully suggestive but its very vividness might obscure proper
consideration of two points to be gleaned from Fricker’s discussion. First, one might
confuse the fact that very serious injustice is done to Robinson with reason to think that the
phenomenon to which Fricker most specifically draws attention—the misperception and
misjudgment of Robinson and the disregard of what he says as a function of racial
prejudice—is itself a violation of a general duty of testimonial* justice for which the jury is
culpable. Second, one might think this kind of misjudgment is the location of real interest
for understanding the phenomenon to which Fricker correctly draws our attention. Fricker
explicitly endorses the first point. On her view, it is the jurors’ perceptual failure to see
Robinson properly and their concordant positive disbelief of him and of his literal formal
testimony that is supposed to constitute the testimonial* injustice proper. “When
they…deliver the guilty verdict, this attests to their failure in their duty to make the proper
testimonial judgment, in the light of the evidence. They fail, as Atticus Finch feared,
2 precisely in their duty to believe Tom Robinson.”3 And it is this for which they are regarded
by Fricker as culpable. As she has it, “they remain starkly culpable in failing to respond
appropriately to the heightened testimonial experience afforded by the trial.”4 It is also plain
that this moment of misjudgment, wherein the credibility assigned to the speaker and to his
testimony is less than it ought to be in virtue of an identity prejudice, is viewed as what is
fundamentally going wrong in the relevant cases. The Robinson case is clearly taken to be
straightforwardly emblematic of the category of testimonial* injustice for which the agents
are culpable.
I am doubtful on both scores. To anticipate: First, I argue that there is considerable
reason to doubt that the Robinson jurors are genuinely culpable for the misjudgment in
question, and that there is even room to doubt that there is any such duty (as characterized)
at all. Second, supposing that they are culpable for some violation of justice in so misjudging,
it does not follow that this case vindicates or supports the more general thesis of interest
here. I suggest that if there is a duty of epistemic justice in the vicinity its demands are of a
slightly different character. Further, its conditions of authoritative applicability are likely
markedly narrower then this original account suggests.
2. General Grounds for Hesitation
There are familiar worries in law and moral philosophy over the general question as to
whether and in what conditions we may regard people as culpable both for what they do (or
allow) and for how they are disposed, and these are particularly pressing here. Suppose we
are inclined to accept that our general conceptions of culpability and genuine agency are not
fanciful, despite the phenomenon of moral luck.5 What do these conceptions imply in the
standard cases? As is familiar, in order to be directly culpable for something she does (or
allows) an agent must exercise intentional control, to a non-negligible degree, in knowingly
doing the very action we hold her responsible for, or in knowingly allowing something
3
See Fricker (2007), p. 26.
4
Ibid. p. 90.
5
That is, suppose we accept that moral luck, in its constitutive and circumstantial guises, is a
genuine phenomenon. But suppose also that we resist Thomas Nagel’s claim that picking
out “the kinds of control that really undermine certain moral judgments without yielding the
unacceptable conclusion…that most or all ordinary moral judgments are illegitimate” is
hopeless. The argument for that claim is not to my mind compelling. See Nagel, (1976), pp.
137-55.
3 further to unfold. In short, for direct culpability in the paradigm cases of doings and
allowings we require both some knowingness and some control on the part of the agent.
Fricker’s treatment of the Robinson trial strongly suggests that she takes it that
people are generally under a norm of justice, enjoining a duty to perceive others and judge
their testimony* adequately (that is, in a way which overcomes prejudice) and that we are not
infrequently genuinely culpable for violating this. Yet the familiar worries are then acutely
pressing for it is not clear that perceptual judgments are constituted so as to enable their
subjects to meet the criteria the norm presupposes.
Consider: Perceptual judgments (PJs) appear to be at least partly constituted as
perceptual states (perceivings) that are suffered rather than doings or allowings, which can by
contrast be fully intentionally enacted. Yet this leaves us without a general warrant for
regarding agents as directly culpable precisely for their perceptual judgments, even for those
we take to be grotesquely distorted by prejudice and harmful in purport. For we do not in
general hold people directly culpable precisely for how things appear to them whenever
those appearances embody something misleading or mistaken. Part of the reason for this is
surely that how things appear to one of us is never a simple function of--nor always directly
responsive to--the will, insofar as perceivings are not deeds. Thus, even if we are relaxed
about the general viability of our conceptions of culpability and agency, as I think we should
be, it seems that one’s perceptual judgments proper are not the right kind of thing to hold a
person directly culpable for. More precisely: since misperceptions are perceivings and any PJ
is at least partly constituted by one such state, it appears to be a mistake to think that we
could ever be directly culpable even for generating quite poor PJs as such. This is not to
deny that people suffering misperceptions are generally rationally answerable to the facts in
question, nor to deny that it is typically appropriate to correct them. Attempted correction of
some sort is surely sometimes ethically demanded where the misperception is contributing to
some serious harm or violation of right. But rational answerability and ethical (or practical)
culpability are different and presumably have distinct conditions of instantiation.
If the forgoing is correct, the general account of testimonial* injustice developed in
PEK in connection with the Robinson trial is misconceived. People essentially suffer the
relevant misperceptions and so cannot be directly culpable for them. Though these states
could surely embody and support injustice these cannot be performances of injustice—
unjust doings—as they are not doings at all. They are simply not the right sort of thing to be
4 intentionally “inflicted individual to individual, so that there are immediate questions to be
answered concerning …culpability…”.6 But if that is correct these states are not suitable as
raw materials for regulation by duties of justice. The Robinson jurors specifically cannot be
correctly said to have culpably directly engaged in injustice in suffering this admittedly
grotesque and harmful misperception.
3. A Defense?
To try to defend the account against this general objection, we could mark a distinction
between perceptions on the one hand and judgments (PJs proper) made in connection with
these on the other. On this view, the beliefs that may be produced in connection with the
perceptions are made through the exercise of the capacity for judgment, and it is the
generation of those beliefs that we can, arguably, in some conditions, be held responsible for.
This picture hence preserves the thought that there is an essentially receptive element in
perception, yet it also perhaps leaves some room for culpability and not mere rational
answerability.
On the model that we are now considering, PJs are a sort of deed and so can be
done well or badly by the person performing them. This particular sort of deed essentially
involves bringing concepts to bear so as to constitute for the agent a definite position in the
space of reasons. The clearest examples are explicit consciously made inferences to definitive
recognized belief—that is, consciously rationalized formal argument construction,
performed by some epistemic subject, and serving to secure justification for relevant belief
for that same subject. Accordingly, the suggestion is that insofar as one of us generates a
gross misjudgment of another’s reliability via a process of explicit intentional inference,
willfully bringing concepts to bear on perceivings, this generally fits that first person for a
relevant culpability judgment. If this is correct, we have revealed some basic metaphysical
room for a general duty of testimonial* injustice of the relevant sort, and so there is room
for thinking that the Robinson jury has culpably violated it.
I think the difficulty is not resolved this easily. This story is too quick and it is plainly
inconsistent with Fricker’s other commitments. In particular, Fricker pointedly rejects an
inferentialist epistemology of testimony*. That is, Fricker does not accept that for the typical
6
See Fricker (2007), p. 168.
5 case of knowing through another’s testimony* the learner has genuine knowledge exactly
through cognizing and rehearsing an inductive argument supporting the thought that the
teller is reliable. As she points out, this model is simply not reflected in the spontaneous and
fairly effortless character of typical cases of learning through being told. If Fricker is right to
reject this inferentialist epistemology of testimony*, as I think she is, then the defense we are
considering here is no good. In any event it is unavailable to one who shares her
commitments. PJs are perhaps deed-like in some respects, but the envisioned defense
requires that they literally be deeds insofar as they involve a robustly willful exercise of a
capacity for judgment. If Fricker is correct though, what we find instead is the habitual
functioning of a rational sensibility, which typically generates PJs spontaneously in
appropriate conditions. So this objection stands.
4. A Possible Injustice
But this is worrisome. Surely the Robinson jurors are exhibiting some sort of basic ethical
and epistemic failure in arriving at the relevant verdict, and it looks like we are making them
out as hapless patsies rather than the agents of injustice that they apparently are. (Here we
follow Fricker and set aside the possibility that the jury is cynically choosing to arrive at a
guilty verdict all the while recognizing Robinson’s real innocence. That would surely be an
injustice but not one of the relevant kind.) What then is the character of the wrong that they
do? And is it an instance of a violation of a duty of testimonial* justice of roughly Fricker’s
sort?
I recognize two ways of conceiving of what the jurors do as involving active injustice,
stemming from racial prejudice, and with an epistemic dimension, and neither really fits with
the central thesis. I discuss the first way here and the second way in the next section. Recall,
as Fricker suggests, that the trial by its very nature involves heightened standards of good
deliberation and action. In such a legal setting, where serious charges have been made, and
human lives are manifestly on the line, it is plausibly incumbent upon the hearers, qua jury,
to weigh the evidence impartially and otherwise carefully. Doing that properly (again at least
plausibly) requires being both open to, and otherwise rationally astute with respect to, the
formal testimony given. The deliberations are to be thorough and explicit, and in order to
perform these functions and discharge its legal duties properly, the jury may need to exercise
a reflective critical scrutiny with respect to its own reactions and tendencies, both
6 individually and as a corporate body. We can and should distinguish the duties that fall on a
jury as a function of its role—call these tacit practical-juridical duties—from the explicit legal
duties associated with some expression of positive law or official jurisprudential practice like
judicial instruction. Allowing all this opens up room for duties of justice with a clear
epistemic dimension and that are not merely a matter of positive law or official action. In a
serious criminal trial, in a society characterized by considerable background injustice with a
stark racial dimension, it does seem reasonable to think that a jury ought, as a matter of
justice (and in particularly as matter of equality before the law), make a concerted effort to
view the literal testimony of a member of an oppressed class with care. But all this
emphasizes the special qualities of this particular kind of case and role and even here there is
considerable room for doubt.
In short, while there may well be a practical juridical duty of epistemic (testimonial)
justice governing the explicit cognitive conduct of jurors vis-à-vis literal testifiers, this is quite
specific. The authority of this duty would appear to stem in part from features having their
salience in these particular legal circumstances: first, that it is the special and crucial job of
the jury to explicitly weigh the literal testimony as well and fairly as they can, and, second
that the collective nature of the jury allows for some critical reflection on one’s own patterns
of thinking that is individually much more difficult to achieve. This reflects, respectively, a
measure of obvious ethical seriousness and a degree of further control having no general
analogues in everyday testimonial* interactions. In short, nothing follows about the
possibility of a direct duty of testimonial* justice even if we accept that there is a weighty
duty of literal testimonial justice in these specific circumstances.
The answers to the questions I posed at the start of this section should now be clear.
The wrong they do is, arguably, a violation of a specific duty imposed by the particular
circumstances of the trial. It is not plausible to think that this is an instance of testimonial*
injustice despite the rough family resemblance, nor should we think that this case gives us
conclusive reason to accept that there are such duties in connection with everyday
testimonial* interactions.
5. Further Culpability Worries
Recall the central thesis plausibly drawn from PEK. This, again, is the thought that justice
imposes a duty directly requiring each of us to make sound (prejudice overcoming)
7 perceptual judgments of the testimony* of those we are bound up with in social life, the
violation of which any one of us would ordinarily be culpable for. I take it that I have said
enough above to begin to undermine our faith in the plausibility of this thesis. Here I stress
that if there are duties having roughly this purport, these will apparently be quite differently
constituted than it first appears.
Specifically, consider the practically rational, realistically virtuous, sensibility. This is
the sensibility of the sub-phronimos, regarded as willingly overcoming (in her PJs) the
prejudices rife in the surrounding culture and latent in her own psychology. Very clearly
Fricker embraces this sort of picture in PEK.7 Suppose further that any instance of this sort
of virtuous sensibility is in part an achievement accomplished out of the temporally prior
doings of the agent whose sensibility is being thereby formed. It strikes me as intelligible that
we could hold a person, one who in a stage of youthful development reached a sufficient
level of rational competency and knowledge (including considerable self-knowledge),
genuinely culpable for failing to subsequently do what she sees that she ought to do so as to
develop the appropriate habits constitutive of virtue. Where it is true to say that she allowed
herself to be consistently vulnerable to prejudice, that she in some sense knew what she
ought to do (so as to become what she ought to become) and yet subsequently failed to do it,
we have the bare conditions for genuine culpability. This opens up the room for what I see
as the second way that the jury could be culpable of violating a duty with an epistemic (and
testimonial*) dimension. On this possibility the jury (at least some of them) may have
violated a duty of self-development calling for them to bring themselves into the full
corrective virtue relevant to testimonial* justice. This is clearly not the duty as expressed in
the central thesis. The relevant standard of culpability in connection with this duty also
seems to be quite high.
For it is also plain that in PEK Fricker insists on a version of what she calls in
subsequent work the ‘the relativism of blame’. This is the thought that “other things being
equal, agents can only be blameworthy in relation to the forms of moral thinking…routine in
their own time.”8 She relies on this thought in her account of the Greenleaf case, owed
originally to the creative efforts of Patricia Highsmith. In this case, Herbert Greenleaf fails to
believe his would be daughter-in-law Marge Sherwood concerning the complicity of Tom
7
Ibid. pp. 60-108.
8
See Fricker, (2010-B), p. 166.
8 Ripley in the disappearance of Marge’s fiancé (and Herbert’s son) Dickie.9 Herbert fails to
believe Marge, who is on to Tom’s duplicitous nature, since Herbert is sexist, reflecting
dominant social convention, and so discounts what she has to say. As Fricker interprets the
case, Greenleaf, as a result of historical and cultural factors beyond his control, lacks the
conceptual tools to recognize morally questionable forms of authority relations inscribed in
gender roles and underwritten by prejudice. This epistemic and moral bad luck renders him
incapable of developing any properly reflexive virtue that could correct for the effects of the
relevant prejudice in his own case. Fricker holds that this incapacity makes him not culpable
for his disbelief of Marge. As she puts the general point “[w]e do not blame people for
things they cannot objectively do or cannot help doing…Greenleaf could not neutralize the
impact of gender prejudice in his judgment…because the critical concepts he needed were
not available to him.”10 So I take it that at least some of the Robinson jurors are likely to be
in a similar position, and hence not culpable. This is clearly inconsistent.
Finally, Fricker is also sympathetic to Bernard Williams’s view that blame is
inappropriate where the subject fails to have a member of her antecedent subjective
motivational set that could ground a sound deliberative path toward the relevant end. She
reveals this in her subtle discussion of the Herbert Greenleaf case, and this too puts pressure
on the central thesis under discussion. For, I take it, the same considerations of practical
reason that are taken to excuse Greenleaf of blame would, when generalized, undermine the
idea that there is a duty of justice of this precise kind at all.
6. Replies and Conclusion
A first reply to what I have argued is to note that it is one of Fricker’s central points in the
book that the relevant epistemic virtue is reflexive and corrective in character. So she clearly
holds that we can reflect on our own less than perfect perceptual capacities and, hopefully,
reform and retrain these. This suggests that some relevant knowingness and cognitive
control are possible to a degree. I concur. But this reply is consistent with conceding that the
perceptual misjudgments exhibited even by the Robinson jury are not themselves violations
of some direct duty of testimonial* justice. The original violation of epistemic testimonial*
9
See Highsmith (2008 [1955]).
10
See Fricker, 2007, p. 101.
9 justice here, if there is one, is willfully leaving one’s capacities for morally salient perception
in these specifics not reflected upon and untrained.
Another point worth making in constituting a fallback position is to stress that
Fricker is happy with the basic thought of injustices that are purely structural—lacking a
clear origin in intentional personal agency these are not doings. (Central cases of
hermeneutical injustice are an example. These wrongs are constituted by gaps in conceptual
resources for which no one is in particular responsible or culpable.) So even if we accept my
line of criticism, there would be room to recognize some impersonal testimonial* injustice.
Yet this would be quite a dramatic revision of the original account, and I think we should
leave room for a kind of agential testimonial* injustice.
I conclude that Fricker ought indeed to revise the original account of testimonial*
injustice. First, the jury’s deliberations in the Robinson trial are not an instance of the
intended category but occupy a slightly different place. Second, there are general reasons to
doubt that perceptual judgments are governed by direct duties of justice. The real concern is
with the virtuous sensibility and the account should focus more directly there.
References:
Fricker, M. (2007) Epistemic Injustice: Power and the Ethics of Knowing. Oxford: Oxford University
Press.
Fricker, M. (2010-A) Replies to Alcoff, Goldberg and Hookway on Epistemic Injustice.
Episteme: A Journal of Social Epistemology, 7 (2), 164-178.
Fricker, M. (2010-B) The Relativism of Blame and Williams’s Relativism of Distance.
Proceedings of the Aristotelian Society Supplementary Volume, 84 (2010), 151-177.
Fricker, M. (2013) Epistemic justice as a condition of political freedom? Synthese, 190, 13171332.
Greenwald, A. G., et al, (2009). Understanding and Using the Implicit Association Test III.
Meta-analysis of predictive validity. Journal of Personality and Social Psychology, 97, 17-41.
Highsmith, P. (2008, [1955]). The Talented Mr. Ripley. New York: W.W. Norton and
Company.
Lee, H. (1996, [1960]). To Kill a Mockingbird. London: The Folio Society.
10 Nagel, T. (1976) Moral Luck. Proceedings of the Aristotelian Society, 50, 137-55.
Williams, B. (1995, [1989]). Internal reasons and the obscurity of blame. In: Making Sense of
Humanity and other philosophical papers. New York: Cambridge University Press.
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