I am currently writing a book on moral rights under uncertainty, under contract with Oxford University Press. The working title is Rewriting Rights: Making Reasonable Mistakes in a Social Context. If you want more information about the book, or are interested in participating in a workshop on the manuscript, please do feel email me (rjorgen@umich.edu).
The book argues that we should think of the epistemic risk of violating others' rights as presenting us with a moral coordination problem, and developing a view of what our rights demand of each other that is essentially social, mediated by convention, and communicated through social signals. The first half of the book outlines the view and mechanics, and the second half applies it to solve longstanding problems in the ethics of consent and self-defense. The final chapters discuss issues related to changing pernicious social norms.
Book Project | Rewriting Rights: Making Reasonable Mistakes in a Social Context
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Chapter Summaries
1. Problems of Ignorance: Mistakes are Made
Sets up the focus of the book: what does it take to respect rights, when we can’t track others’ intentions, and so cannot observe facts like whether they intend to consent, or are culpably attacking us? I call these “Normative Opacity Problems”: decisions in which it is opaque to the actor whether the other agent has acted to change what their rights require of her.
2. Rewriting Rights
Moral theory standardly treats normative opacity problems as moral “guessing games”: a decision problem for one agent acting under uncertainty. I argue that in fact they are structured more like cooperative signaling problems, and the optimal solution will involve coordinating the behavior of the agents involved. Representing them as problems for individuals loses important information about the social structure of the moral issues, and the shape of the needed solution.
3. What Rights Require
Argues that neither framing rights as requiring agents to act to achieve certain fact-relative outcomes, nor (alternatively) as requiring only that they deliberate and act according to particular evidence-relative standards, yields a characterization of the rights-holders’ entitlements that will fulfill the four signature theoretical roles of rights (correlativity, security, fairness, and guidance). So we need a new approach.
4. The Social Approach
Instead of characterizing rights wholly in terms of the rights-holder’s interest (as an outcome-relative perspective does), or wholly in terms of the duty-bound’s deliberative ability (as an evidence-relative perspective does), I propose framing the contents of rights-claims cooperatively. The core of the account is a communicative signaling convention, supported by a social norm which takes signaling that you have exercised a normative power to be a way of in fact exercising that power. What agents owe each other is good-faith cooperation to avoid mistakes. This characterizes rights as fact-relative, but responsive to agents' epistemic limits. If the signaling convention is appropriately constrained, rights-holders have no moral complaint against mistakes resulting from their own signaling behavior; reactive agents are responsible for all other errors, though they may be blameless given their evidence. The chapter ends with a discussion of the necessary moral constraints for a functional normative signaling convention.
5. The Story for Consent
The central question for settling which mistakes a society should count as reasonable is whether the standard as implemented in the actual world will distribute the risks and costs of mistakes fairly. This chapter compares popular individualist accounts of consent (mental state, hybrid, and performative accounts) with the social signaling account. It demonstrates that given the strong gender bias in mistakes about consent, a standard that guides agents to follow their best guess on their evidence will compound, rather than address, the unjust concentration of mistakes. By contrast, the social approach creates space to explicitly evaluate and reject the heuristics which lead to the disproportionate distribution of errors.
6. The Story for Self-Defense
This chapter demonstrates that communicative signals can be used to resolve opacity problems involving uncooperative agents (like aggressors). It then shows that given the racial biases in threat-perception, a standard that guides agents to follow their best guess on their evidence (as extant accounts of the morality of defensive harm do) can be expected to compound, rather than address, the unjust racial distribution of mistaken self-defensive harm. Once again, the social approach brings the heuristics responsible for this effect into focus, and condemns them as failing the basic moral constraints for a signaling convention.
7. The Reasonable Person's Reasons
This chapter argues that the ‘reasonable person’ standard invoked in legal contexts is best theorized as appealing to extant social signaling conventions and norms to settle whether to hold a mistaken agent responsible for their error. This is what I urge we should do, on the social approach, with one important difference: we need to recognize that judgements of reasonableness appeal to conventions, and ensure that the conventions satisfy the moral constraints necessary to render them adequately just. When instead we imagine that we are making isolated judgements about individual responsibility, we’re likely to unreflectively invoke the communicative conventions of dominant, politically empowered groups, --without attending to the costs imposed on members of marginalized or subordinated groups—and mistakenly think the verdicts we reach are just. I argue that this is in fact what happens with our present determinations of “reasonable mistakes”, and adds to the urgency of viewing these cases as a set rather than assessing on a case by case basis whether we think the mistake made was reasonable.
8. Moral and Political Obligations under Normative Opacity
Argues that (1) the Social Approach genuinely characterizes the contents of agents’ moral rights, rather than merely justifying a policy of acting-as-if. And (2), if overcoming the threat posed by normative opacity requires a degree of social coordination that individuals acting alone cannot bring about, the state's duty to protect its members' rights grounds an obligation for it to create and sustain the necessary communicative social conventions. I suggest that part of the function of the courts is to articulate and maintain these conventions. Given the significance of determinations of reasonableness for individuals’ enjoyment of their rights, we finally address the question that prompted the whole inquiry: what must we do when the burdens of normative opacity fall disproportionately on vulnerable subgroups of our community?
9. Stewards of our Norms: Upshots for Law, Protest, and Policing
Communicative conventions aren't just the most appropriate way to adjudicate rights under normative opacity; they're what we already use. Recognizing this, we must resist unreflectively adopting the communicative conventions of a dominant, politically empowered group, and instead evaluate how it distributes the costs of opacity throughout the community. The chapter closes with discussions of (1) the ways that discourse about mistakes reinforce the informal social norms that stabilize communicative conventions; (2) the role of protests like `solidarity hoodies', BLM, and Slutwalk in destabilizing unacceptable signaling conventions; and (3) how the special role of signaling explains why many forms of information that make it rational to believe that someone has exercised a moral power do not make it reasonable to assume that they have. I end with some gestural comments about how the standard for reasonable mistakes outlined in this book should inform our evaluation of police use-of-force decisions under opacity.
1. Problems of Ignorance: Mistakes are Made
Sets up the focus of the book: what does it take to respect rights, when we can’t track others’ intentions, and so cannot observe facts like whether they intend to consent, or are culpably attacking us? I call these “Normative Opacity Problems”: decisions in which it is opaque to the actor whether the other agent has acted to change what their rights require of her.
2. Rewriting Rights
Moral theory standardly treats normative opacity problems as moral “guessing games”: a decision problem for one agent acting under uncertainty. I argue that in fact they are structured more like cooperative signaling problems, and the optimal solution will involve coordinating the behavior of the agents involved. Representing them as problems for individuals loses important information about the social structure of the moral issues, and the shape of the needed solution.
3. What Rights Require
Argues that neither framing rights as requiring agents to act to achieve certain fact-relative outcomes, nor (alternatively) as requiring only that they deliberate and act according to particular evidence-relative standards, yields a characterization of the rights-holders’ entitlements that will fulfill the four signature theoretical roles of rights (correlativity, security, fairness, and guidance). So we need a new approach.
4. The Social Approach
Instead of characterizing rights wholly in terms of the rights-holder’s interest (as an outcome-relative perspective does), or wholly in terms of the duty-bound’s deliberative ability (as an evidence-relative perspective does), I propose framing the contents of rights-claims cooperatively. The core of the account is a communicative signaling convention, supported by a social norm which takes signaling that you have exercised a normative power to be a way of in fact exercising that power. What agents owe each other is good-faith cooperation to avoid mistakes. This characterizes rights as fact-relative, but responsive to agents' epistemic limits. If the signaling convention is appropriately constrained, rights-holders have no moral complaint against mistakes resulting from their own signaling behavior; reactive agents are responsible for all other errors, though they may be blameless given their evidence. The chapter ends with a discussion of the necessary moral constraints for a functional normative signaling convention.
5. The Story for Consent
The central question for settling which mistakes a society should count as reasonable is whether the standard as implemented in the actual world will distribute the risks and costs of mistakes fairly. This chapter compares popular individualist accounts of consent (mental state, hybrid, and performative accounts) with the social signaling account. It demonstrates that given the strong gender bias in mistakes about consent, a standard that guides agents to follow their best guess on their evidence will compound, rather than address, the unjust concentration of mistakes. By contrast, the social approach creates space to explicitly evaluate and reject the heuristics which lead to the disproportionate distribution of errors.
6. The Story for Self-Defense
This chapter demonstrates that communicative signals can be used to resolve opacity problems involving uncooperative agents (like aggressors). It then shows that given the racial biases in threat-perception, a standard that guides agents to follow their best guess on their evidence (as extant accounts of the morality of defensive harm do) can be expected to compound, rather than address, the unjust racial distribution of mistaken self-defensive harm. Once again, the social approach brings the heuristics responsible for this effect into focus, and condemns them as failing the basic moral constraints for a signaling convention.
7. The Reasonable Person's Reasons
This chapter argues that the ‘reasonable person’ standard invoked in legal contexts is best theorized as appealing to extant social signaling conventions and norms to settle whether to hold a mistaken agent responsible for their error. This is what I urge we should do, on the social approach, with one important difference: we need to recognize that judgements of reasonableness appeal to conventions, and ensure that the conventions satisfy the moral constraints necessary to render them adequately just. When instead we imagine that we are making isolated judgements about individual responsibility, we’re likely to unreflectively invoke the communicative conventions of dominant, politically empowered groups, --without attending to the costs imposed on members of marginalized or subordinated groups—and mistakenly think the verdicts we reach are just. I argue that this is in fact what happens with our present determinations of “reasonable mistakes”, and adds to the urgency of viewing these cases as a set rather than assessing on a case by case basis whether we think the mistake made was reasonable.
8. Moral and Political Obligations under Normative Opacity
Argues that (1) the Social Approach genuinely characterizes the contents of agents’ moral rights, rather than merely justifying a policy of acting-as-if. And (2), if overcoming the threat posed by normative opacity requires a degree of social coordination that individuals acting alone cannot bring about, the state's duty to protect its members' rights grounds an obligation for it to create and sustain the necessary communicative social conventions. I suggest that part of the function of the courts is to articulate and maintain these conventions. Given the significance of determinations of reasonableness for individuals’ enjoyment of their rights, we finally address the question that prompted the whole inquiry: what must we do when the burdens of normative opacity fall disproportionately on vulnerable subgroups of our community?
9. Stewards of our Norms: Upshots for Law, Protest, and Policing
Communicative conventions aren't just the most appropriate way to adjudicate rights under normative opacity; they're what we already use. Recognizing this, we must resist unreflectively adopting the communicative conventions of a dominant, politically empowered group, and instead evaluate how it distributes the costs of opacity throughout the community. The chapter closes with discussions of (1) the ways that discourse about mistakes reinforce the informal social norms that stabilize communicative conventions; (2) the role of protests like `solidarity hoodies', BLM, and Slutwalk in destabilizing unacceptable signaling conventions; and (3) how the special role of signaling explains why many forms of information that make it rational to believe that someone has exercised a moral power do not make it reasonable to assume that they have. I end with some gestural comments about how the standard for reasonable mistakes outlined in this book should inform our evaluation of police use-of-force decisions under opacity.
