Against Deference: Epistemic Privilege Considered

Following up on my claim in the last post that “honor produces error,” in my view, the problem is epistemic privilege, i.e. deference.

By deference, I mean the epistemic privileges that some people receive or earn through demonstrating their erudition or looking like they know what they’re talking about. When you think of deference, you should think of the feminist critique of uptake conventions among men and women. Consider: as a male I often notice that whether or not I know what I’m talking about, people tend to pay attention when I speak. With some of my equally smart (or smarter) colleagues, I see this reversed: they get talked over, get fewer turns to speak, and their expertise is challenged more often. Usually, the factors that go into these differences in uptake aren’t epistemically salient: things like gender, bearing, dress, physical fitness, or facial symmetry aren’t particularly accurate signals of knowledge. It’s not just unfair to my colleagues, but a bad way to get the right answer!

Epistemic Injustice

Miranda Fricker has argued in her work on epistemic injustice that it is possible to wrong another in their capacity as a knower. I agree! But Fricker goes on to argue that inappropriate lack of deference entails appropriate deference: if deference can be withheld unfairly, then that implies that there will be times when justice obligates us to defer to others. Yet here, I believe Fricker conflates testimonial deference (“You were there, I wasn’t, what did you see?”) with deference to expertise. (“You have studied this matter, and I haven’t, what do you know?”)

If deference can be appropriate, then epistemic privileges can be justified. This means that some forms of uptake and inattention are moral: sometimes, for Fricker, the right thing to do is to ignore one person and pay attention to another. Every act of deference requires an act of dismissal. When we deal with experts, this can even mean dismissing ourselves! The moment we grant epistemic privileges, we risk suspending our own critical faculties and ignoring other potential knowers in favor of the expert knower. When we grant doctors, lawyers, and academics deference in their respective fields, we do so without making independent inquiry into the matter. At best, we only hold ourselves responsible for evaluating the prestige or reputation of a particular putative expert. Whether in the case of disease, a lawsuit, or the interpretation of experimental data, when we bow to the professionals’ authority, we do so at the expense of epistemic equality. Is this justified?

Those who champion epistemic dependence generally do so in the name of epistemic interdependence. No one, we are told, can be a jack-of-all-trades and still function well within a complex society like our own. Breadth comes at the expense of depth. This produces a vision of egalitarian deference: so long as we defer to each other equally, as each of use takes up her areas of expertise in turn, our mutual deference need never produce a larger domination or inferiority.

The Promise (and Perils) of Expertise

Unfortunately, like capital or charisma, knowledge and expertise tend to pool and accumulate. Just as the accumulation of capital produces societal inequalities, so the accumulation of expertise and the attendant deference is also likely to produce error. Remember that testimony is often less accurate than we have a tendency to believe. In much the same way, expert opinions are granted more accuracy than they deserve. In fact, experts are prone to a kind of motivated skepticism that can render them less likely to make correct predictions in their areas of expertise than a simple coin flip. This is despite the fact that experts will have large amounts of correct information (and that they tend to underestimate their abilities while amateurs overestimate): when it comes to making predictions under conditions of uncertainty, experts can’t tell which of their views are correct and which biased.

To make sense of this, we must distinguish between a single expert and the consensus of experts in a field. As a group, experts are trustworthy. Alone, they are no better than a coin flip. The point here is that individual experts don’t deserve the epistemic privileges we grant them, even though expertise itself is useful and does deserve our attention. Deference is only due to a community of inquirers, not to persons: as an attitude towards individual persons, deference is both immoral (for producing epistemic injustice) and likely to lead to error. Even those who grant epistemic authority in principle will act on this suspicion of experts in practice. Instead of trusting a harried doctor to interpret our symptoms and the medical literature, we’ll frequently seek a second opinion or research her diagnosis online. When they feel unjustly convicted by the supposedly-arcane court system, some inmates spend their incarceration researching the legal precedents in an effort to file their own appeals, and in so doing, learn a good deal of law. When our lives or freedom are on the line, we’re able to see the problem with this epistemic dependence.

Using Authority to Deflate Privilege

Because our interactions are shot through with status games and signalling, perhaps epistemic and moral authority are inevitable. We might think that in the best we can hope for is to channel these forms of authority in egalitarian ways. For instance, a version of the deference dynamic sometimes also plays out in my classroom: although I try to set and maintain conventions of mutual respect, I must sometimes enforce them authoritatively. In doing so, I believe I put my epistemic privilege to an anti-privilege use, but thereby I also preserve it: the students respect each other because I remind them to do it, and they respect my reminders because they respect me. This is probably the way sentiments of mutual respect are generated, but I’m not sure it’s particularly moral.

Nor is my goal in demanding mutual respect in the classroom that each student’s opinion be treated as equally correct. Just the opposite: the hope is that after all opinions are weighed and most found wanting, some opinions will be preferred. That is to say, the goal of mutual respect in the classroom is that we will all defer to the best arguments rather than the loudest voices or most confident speakers. This is true even when the loud voice is my own. If the students simply took what I said as gospel, that would be as stultifying as if they believed their most charismatic comrades. So the norm of equality and non-deference is designed to produce a community of mutual inquiry, where the best argument wins.

Here, it’s the argument that gains authority, not the person. A teacher or leader with some kind special insight into the best arguments ought to lose her authority simply by failing to act or speak consistently with the principles and arguments she espouses. Yet we cannot revoke our deference unless we count ourselves as equal in the evaluation of the argument and the teacher’s mastery of it. Isn’t this the core of Enlightenment in which we “emerge from our self-imposed tutelage“?  The only legitimate epistemic authority is the world’s own authority to report its facts.

(Steven Maloney and I made some related arguments in our paper “Foresight, Epistemic Reliability, and the Systematic Underestimation of Risk.” There, we evaluated the problem of expertise under conditions of potential existential threats to the regime, and thus ducked the question of the *morality* of epistemic privileges.)

The Politics of Crazies

Dr. Trott has a nice post over at Mahogany Feed on Terry Jones’ threat to burn Korans over the weekend to commemorate the attacks of September 11th and to remind Muslims “not to push their agenda on us.” Dr. Trott suggests that this threat to burn the holy book of a cultural group, with an ultimatum tied to the Park51/Cordoba House project, is “cultural terrorism,” and that:

we need to do the work of analyzing his particular brand of crazy, a dangerous brand, in my view.  It’s dangerous because it’s tyrannical, and an attempt to make a slave out of those whom you want to do your bidding, which is what happens when force replaces discourse in public life, even if that force isn’t with guns or bombs but threats to burn your holy book.

Because I, like many people, am incensed by the rhetoric surrounding the latest 9/11 commemorations, and the problems caused for Muslims by the fact that it coincides with the end of Ramadan, I’m sympathetic to this view. But I think that analysis of Jones’ particular brand of crazy is misplaced.

The “tyrannical crazy” Dr. Trott describes seems completely ignorable, and needs no more analysis than any other debilitating schizophrenia. An act of “cultural terrorism” can’t be performed from within the context of madness or “crazy,” because the Islam being attacked is a fantasy with no relationship to its actuality. It’s akin to the more stereotypical forms of madness in which real people or groups play conspiratorial roles in a paranoid’s fantasies of persecution. The relevant comparison here is the hostage-taker James J. Lee, who attacked the Discovery Building because the network wasn’t doing enough to address overpopulation and global warming. This was a man completely unhinged from reality, and he does not “represent” environmentalists or anti-natalists. Similarly, Jones ought not to be allowed to represent Americans or Christians.

In both cases, the symbolic attack on the enemy within his delusion is not a psychic attack on the cultural group that shares the same name unless we allow it to be, unless we speak about the private act of a crazy person as if it somehow stands in for what we all mean or think. But of course, that’s exactly what we’ve done. Jones would not have the status he has today if our real representatives weren’t saying things like “Islam isn’t a religion” and burning down mosques (in Murfreesboro, TN) or trying to ban the building of mosques in the communities where Muslims reside. So in this sense, there’s a comparison to be made between white supremacists burning a cross on a black neighbor’s lawn and somebody burning a book in their own yard that they paid for themselves. Jones’ kind of crazy is empowered by racist and intolerant institutions, like the cross-burners were.

Yet there’s also a big difference:  without that political and legal support, his act would be meaningless, while theirs would still be trespass and arson. Also unlike the white supremacists, we can easily strip Jones’ act of its power to injure by removing our support for the figures and institutions that empower him. That means commenting, positively, on the wisdom of the Park51/Cordoba project Jones opposes (my biggest disappointment with the President so far), and treating as Jones’ co-crazies anyone who believes or acts otherwise. This kind of policing of the zones of madness and reason seems eminently practical and desirable in this situation, and makes me wonder if Foucault hasn’t had perhaps too much impact on our thinking about the politics of crazy and the crazy of politics.

Where the traditional Foucaultian analysis focuses on how often those dubbed mad or mentally ill do not violate the basic “Harm Principle” and thus do not warrant the kinds of medico-juridical coercive measures instantiated in the asylum, this cannot be said of racist and intolerant paranoias motivated by political attention-seeking, nor by cultural ultimatums that enforce and are enforced by legitimate political and legal institutions. So even as I applaud the spirit of the widespread opposition to Jones’ Koran-burnings, I think that the better solution would have been a two-fold agreement to ignore and marginalize him and those who agree with him, perhaps combined with Josh Marshall’s advice to act as chroniclers of the current madness:

And here we have it. We’re in a midst of a spasm of nativist panic and raw and raucous appeals to race and religious hatred. What effects this will have on the November election strikes me as not particularly relevant. What’s important is compiling some record of what’s afoot, some catalog for understanding in the future who was responsible and who was so willing to disgrace their country and their principles for cheap advantage.

So far, this group who would trade “principles for cheap advantage” includes many people who do not belong to my party. Neither Dr. Trott nor I can effectively call Terry Jones to account: he is lost to his own brand of crazy. Nor will Newt Gingrich or Sarah Palin ever care much what we think of their actions. Yet this group now also includes a few figures that do belong to my party, including the President and Senator Harry Reid. We need Dr. Trott’s analysis to understand what would cause them to add their voices to the madness.

Consent Revisited in Light of New Facts

In a previous post, I argued deception robbed sexual and marriage partners of their capacity to grant informed consent:

attempts to reduce consent to the simple act of saying “yes” actually ignore the ways in which fraudulently representing oneself may be coercive. We can hate the bigotry and prejudice that make the lies seem necessary without embracing deception.

I still think this is true, in principle. I believe that a person’s bodily inviolability is important enough that we should all be able to set the rules for who touches us and how, and that it’s wrong to violate someone’s rules for sexual touching, whether through force or deception. This same version of informed consent is why we punish fraud, and we should protect a person’s sexual autonomy more strictly than we protect their finances. Even bigots and transphobics have a right to this kind of protection.

However, something can be morally wrong without being legally wrong, and even legal harms come in degrees. Deception in a marriage could be grounds for annulment or for divorce, but annulment is much more serious than divorce, it voids the marriage itself as if it had never happened. Having sex with someone under false pretences can be a tort or a crime, and as a crime, it can be a misdemeanor or a felony. So just establishing that a wrong has occurred is only the start of the question: perhaps the more important question is adjudging the degree of wrongness and developing an equitable, proportionate punishment. This is the question of remedies: if something is wrong, what will make it right?

Looking further at the two cases, it now seems clear to me that the punishment is disproportionate and inequitable. Consider the case of Nikki Araguz, who allegedly misled her husband about her birth-gender. The problem here is that Araguz didn’t have the option of honesty, at least with regard to the state of Texas. Sex changes are not recognized there, which means that the Araguz marriage would be voided or annulled merely by the revelation that two people born male had been married. It’s one thing to suggest that the deception might have been grounds for an at-fault divorce: it’s another thing to say the marriage never existed, and should never have existed,  in the first place. This robs Thomas Araguz of the right to consent, given full information. That’s clearly more unjust than a minor deception about his wife’s birth-gender.

A similar problem arises with the case of Sabbar Kashu. Certainly, he acted wrongly, and to my mind he is guilty of at least a civil tort… battery, for instance, is the tort of unwanted touching, and if he had been honest, his touch would (apparently) have been unwanted. Rape-by-deception is not a new crime, in Israel:

In 2008, the High Court of Justice set a precedent on rape by deception, rejecting an appeal of the rape conviction by Zvi Sleiman, who impersonated a senior official in the Housing Ministry whose wife worked in the National Insurance Institute. Sleiman told women he would get them an apartment and increased NII payments if they would sleep with him.

High Court Justice Elyakim Rubinstein said a conviction of rape should be imposed any time a “person does not tell the truth regarding critical matters to a reasonable woman, and as a result of misrepresentation she has sexual relations with him.”

The precedent here has nothing to do with ethnicity or religion, and it seems reasonable enough, but again, even bigots have a right to bodily inviolability. However, a commenter at PrawfsBlawg notes that it’s not in keeping with the English common law tradition, which certainly doesn’t restrict Israeli jurists, but often drives American assumptions about justice:

At common law, fraud in the inducement, as occurred here, could not be grounds for rape, while fraud in the factum (e.g., doctor tells woman he is placing a medical instrument inside her during a pelvic exam but it is actually his penis) could. As long as the woman knew she was having sex, it was not rape, even if she was duped. The sole exception was where a woman was defrauded into thinking she was having sex with her husband. The theory, apparently, was that sex outside of marriage itself was a crime (adultery or fornication, depending on whether the parties were married to others), so that the woman, being a willing participant in one crime, could not claim a different crime occurred — sort of an “unclean hands” doctrine. See Anne M. Coughlin, Sex and Guilt, 84 Va. L. Rev. 1 (1998). Thankfully, we have mostly rejected that premise. However, there is still an unsettling “slippery slope” aspect of recognizing rape based on a fraud-in-the-inducement theory.

Distinguishing “inducement” from “factum” does seem like a reasonable way to proceed. It also addresses my troubled analogy with a rapist who uses an unloaded gun as a threat. But the Israeli practice could also work, so long as remedies and punishments are equitable. Here, they don’t seem to be: in addition to TWO YEARS of house arrest with an ankle tracker, Kashu now faces eighteen months imprisonment, for a crime that usually is punished as a slap on the wrist: a suspended sentence and time served.

Added to this, a lot of the news coverage has ignored that this case started as a traditional rape case. Andrew Sullivan quotes a reader:

A point which is rarely mentioned in the coverage of the “rape by deception” case – either by Israeli or foreign media – is that the case started out as a regular rape case. The woman claimed she was forcibly raped by Kashour. Once on the stand, however, the defense demolished her story and she admitted she lied and that they had consensual sex. She admitted that after learning Kashour lied to her, she felt humiliated and went to the police. It was at that point the prosecution came up with the plea bargain. A normal court would have just acquitted Kashour, but this court decided to convict.

Several further points:

1. If the woman had told the true story to the police in the first place, there would have been no trial, not to mention any conviction.

2. Kashour has no earlier convictions. In another “rape by deception”” case, which involved a lesbian masquerading as a man in order to have sex with women, she received only six months of suspended sentence. Kashour got 18 months of incarceration.

3. One of the three judges is Moshe Drori, who was embroiled in a scandal last year, when he refused to convict a very well connected yeshiva boy who admitted – and was filmed – running over a security guard with his vehicle. The security guard was an Ethiopian woman. Drori, a Jewish Orthodox, forced the guard to accept the apology of the yeshiva boy, and then invoked a judgment by 12th century scholar Maimonides (I shit you not), which says once an apology is accepted by the victim, the case is closed. And he closed the case. He is apparently a Maimonidas affectionado. The case was overturned in the Supreme Court, and this schtick cost Drori his chance at becoming a Supreme Court justice. Let’s say that a non-Jew masquerading as a Jew won’t stand much of a chance in the court of Judge Drori.

That’s neither equitable or proportionate. I do suspect there’s room here for a civil tort claim of some sort: if not battery, than intentional infliction of emotional distress. But not three-and-a-half years of detention and imprisonment.

Consent

Sabbar Kashur, 30, was sentenced to 18 months in prison on Monday after the court ruled that he was guilty of rape by deception. According to the complaint filed by the woman with the Jerusalem district court, the two met in downtown Jerusalem in September 2008 where Kashur, an Arab from East Jerusalem, introduced himself as a Jewish bachelor seeking a serious relationship. The two then had consensual sex in a nearby building before Kashur left.

The family of a Wharton firefighter who died battling a massive egg farm blaze is fighting to keep his widow from receiving death benefits, arguing that the 37-year-old had found out his bride of two years was born a man. Thomas Araguz III separated from his wife after learning her history two months prior to being trapped in the fatal July 3 fire, according to attorney Chad Ellis, who is representing Araguz’s parents in the lawsuit.

My gut tells me the answer to both of these questions ought to be “no,” but in these cases, I think my gut is wrong.

Both cases violate the standard conception of informed consent. To a bigot, ethnicity is highly germane to decisions about intercourse, just as birth-gender matters quite a lot to transphobics. So attempts to reduce consent to the simple act of saying “yes” actually ignore the ways in which fraudulently representing oneself may be coercive. We can hate the bigotry and prejudice that make the lies seem necessary without embracing deception. While lying about one’s “true” origins is one of the well-worn strategies of the marginalized and oppressed, it is a strategy that bolsters the very racist or heternormative regime it is trying to circumvent. In contrast, disclosure subverts that regime by forcing potential partners to acknowledge the appeal of the supposedly-abject Other, and leaves open the possibility of acceptance and true consent.

The Weak Man Fallacy

Is paranoia and militancy the core of the Tea Party Movement? In the context of my recent foray into the Tea Party movement, I’ve been thinking recently about fallacies and bad critical thinking in the public sphere. My friend Robert Talisse has an article with Scott Aikin that I think all philosophers should read. In it, Talisse and Aikin propose a variant of the “Straw Man fallacy,” the “Weak Man.” The Weak Man fallacy doesn’t misstate a rival’s position like a ‘straw man,’ but instead

chooses the opposition’s weakest (or one of its weakest) arguments or proponents for attack.

Talisse developed an account of this fallacy in an article in Scientific American, “Getting Duped: How the Media Messes with Your Mind“:

Weak man tactics are harder to detect than those of the straw man variety. Because straw man arguments are closely related to an opponent’s true position, a clever listener might be able to spot the truth amid the hyperbole, understatement or other corrupted version of that view. A weak man argument, however, is more opaque because it contains a grain of truth and often bears little similarity to the stronger arguments that should also be presented. Therefore, a listener has to know a lot more about the situation to imagine the information that a speaker or writer has cleverly disregarded.

The problem is that there are always both strong and weak interlocutors in the electorate. There are a lot of crazy, wrong, and stupid people in the United States. Should bloggers and scholars devote their energies to responding to them? Or should they respond to the strongest, smartest, best proponents of a policy with which we disagree? Continue reading The Weak Man Fallacy