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 World. If you want more information about the book, please do feel email me ([email protected]).
Promising, consenting, and even attacking someone are ways to ‘rewrite’ our rights, permitting others to treat us in ways that would otherwise have violated the duties they owe us. When unsure whether such a change has been made, we face ‘normative opacity’. Incorrect guesses cause injurious mistakes, so it’s urgent to ask how we owe it to each other to respond to normative opacity. Rewriting Rights highlights the social dimension of the question: at scale, any bias in the error tendencies of the rules we use yields uneven distributions of actual harm. At the individual level this problem is intractable: we can’t do better than responsibly following our best evidence, even when this predictably leads us to make mistakes that injure women and Black men at disproportionate rates. Analogizing the problem to safe driving, Jorgensen argues that we must coordinate to adequately control the risks we pose to each other. The book’s main project is to construct and defend a standard for navigating uncertainty about rights-changes that is not overly demanding, but avoids compounding extant gender and racial bias. It offers a characterization that is essentially social, mediated by convention, and communicated through social signals. She argues that when carefully constrained, social norms can significantly resolve normative opacity—and urges that it is only by recognizing this that we can recognize and reform the unjust norms that do already shape our conception of which mistakes are reasonable.
Book Project | Rewriting Rights: Making Reasonable Mistakes in a Social Context
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Chapter Summaries
1. Mistakes are Made
This chapter introduces and formally characterizes normative opacity problems, arguing that they are properly understood as political problems because they occur at scale and risks of mistake pool on stable social groups, causing distributive inequities in the security we each enjoy against rights-infringements. It introduces the distributive role of reasonableness determinations, and offers three core questions that we must grapple with in proposing a standard for reasonableness: the moral question, the guidance question, and the distributive question. It ends with an overview of how the grand argument will unfold in the book.
2. What is Reasonable?
This chapter provides a grand overview of the difference between the individualist approach to navigating rights under normative opacity, and a social approach. It presents an individualist framing---as isolated decision problems for one agent acting under uncertainty---then argues that it misrepresents the moral structure of normative opacity problems. The challenges we face when navigating uncertainty about whether someone has promised, consented, etc., are interactive (the value of exercising a power depends on uptake, and requires trust), and not isolated (we face them many times, risks compound, and our strategies are socially learned and reinforced). An optimal solution requires reliable communication between the agents involved. Representing normative opacity problems as iterated multi-agent coordination problems reflects these morally significant features of the interaction, and makes visible solutions that go beyond the outcome-relative and evidence-relative alternatives available within the individualist approach.
3. What Rights Require
This chapter argues that neither outcome-relative nor evidence-relative characterizations of the duties correlative to claim rights yields a characterization of the rights-holders’ entitlements consistent with four signature theoretical features of claim rights (correlativity, security, fairness, and guidance). It demonstrates that we cannot achieve an appropriate balance between the interests of the rights-holder and duty-bound by focusing exclusively on either single-agent perspective, or by alternating between the two. It concludes that we need a vantage that keeps both perspectives simultaneously in view. Claim rights are supposed to protect the autonomy or interests of the rights-holder, but whether those goods are secured depends on how the other agents are prone to act—including what mistakes they will likely make in trying to follow the guidance offered in their actual circumstances. They are best characterized as demands that the duty-bound do their part in a well-balanced social practice for navigating normative opacity.
4. The Social Approach
This chapter develops an alternative to the individualist characterizations of the content of claim rights. It holds that what agents owe each other under normative opacity is good-faith cooperation in a social practice justified by its ability to minimize and fairly distribute the costs of mistakes. It offers a normative signalling convention as such a practice, stabilized by a social norm treating conventionally signalling to be a way of genuinely exercising a normative power, provided that the receiver does due diligence, and signals are public knowledge and not unduly burdensome. If the convention satisfies this moral baseline, rights-holders have no moral complaint against mistakes resulting from their own signalling behaviour; reactive agents are responsible for all other errors, though they may be blameless given their evidence. The chapter ends with a discussion of how this specification of claim rights satisfies the theoretical roles discussed in the previous chapter.
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 draws on empirical research to compare the expected distributive consequences of the guidance issued by popular individualist accounts of consent (mental state, hybrid, and performative accounts) with the social signalling account. It demonstrates that given the strong gender bias in mistakes about consent, instructing 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. So in our actual conditions, the constitutive value of consent is best secured by adopting a normative signalling practice.
6. The Story for Self-Defense
This chapter demonstrates that communicative signals can be used to resolve opacity problems involving uncooperative agents (like aggressors in self-defense problems). It then urges that we must take a social approach to issuing guidance and making reasonableness determinations concerning mistaken self-defense, for two reasons. First, given the racial biases in threat-perception, a standard that merely guides agents to follow their best guess on their total evidence (as an individualist approach does) can be expected to compound, rather than address, the unjust racial distribution of mistaken self-defensive harm. Second, our present patterns of mistakes and indemnification strongly suggest that we are already using a conventional threat heuristic to guide reasonableness determinations—but unless we acknowledge that, we cannot effectively insist that it meet the moral baseline.
7. Our Obligations Under Opacity
This chapter traces the implications of the social picture for what we morally owe each other. It offers three converging arguments (Kantian, contractualist, and rule-consequentialist) for a strong ‘Rights-Rewriting’ claim: that when present, an adequately just coordination norm genuinely rewrites our objective rights—and thus what we owe each other as individuals. Even those not convinced by the strong claim should accept the more pragmatic Social Obligation claim, that because of the distributive effects, as a society we owe it to each other to adopt a social approach at least for public determinations of reasonableness. Finally, in the absence of adequately just social norms, we have duties of Rectification: as individuals we owe it to each other not only to refrain from making mistakes, but to work toward the introduction of adequately just norms.
8. Stewards of our Norms
The social approach urges that we understand risk concentrations created by unjust norms for navigating opacity as injustices which we are obligated to ameliorate. This chapter addresses two objections from the ‘Academic Pessimist’: (1) that no individual has a duty to reform social norms, because no one could succeed acting on their own, and (2) that it is unfair to blame, sanction, or hold agents responsible for mistakes for which they are not individually culpable. To answer the first, it leverages a discussion of the dynamics of norm change to highlight ways that individuals can help or hinder efforts at social reform. Replying to the second, it argues that we are liable to bear sanctions when our practices threaten others with unjust harm, and while reasonableness determinations and accountability should not turn on the blameworthiness of a mistake-maker, there is a role for guilt and blame in driving moral progress.
1. Mistakes are Made
This chapter introduces and formally characterizes normative opacity problems, arguing that they are properly understood as political problems because they occur at scale and risks of mistake pool on stable social groups, causing distributive inequities in the security we each enjoy against rights-infringements. It introduces the distributive role of reasonableness determinations, and offers three core questions that we must grapple with in proposing a standard for reasonableness: the moral question, the guidance question, and the distributive question. It ends with an overview of how the grand argument will unfold in the book.
2. What is Reasonable?
This chapter provides a grand overview of the difference between the individualist approach to navigating rights under normative opacity, and a social approach. It presents an individualist framing---as isolated decision problems for one agent acting under uncertainty---then argues that it misrepresents the moral structure of normative opacity problems. The challenges we face when navigating uncertainty about whether someone has promised, consented, etc., are interactive (the value of exercising a power depends on uptake, and requires trust), and not isolated (we face them many times, risks compound, and our strategies are socially learned and reinforced). An optimal solution requires reliable communication between the agents involved. Representing normative opacity problems as iterated multi-agent coordination problems reflects these morally significant features of the interaction, and makes visible solutions that go beyond the outcome-relative and evidence-relative alternatives available within the individualist approach.
3. What Rights Require
This chapter argues that neither outcome-relative nor evidence-relative characterizations of the duties correlative to claim rights yields a characterization of the rights-holders’ entitlements consistent with four signature theoretical features of claim rights (correlativity, security, fairness, and guidance). It demonstrates that we cannot achieve an appropriate balance between the interests of the rights-holder and duty-bound by focusing exclusively on either single-agent perspective, or by alternating between the two. It concludes that we need a vantage that keeps both perspectives simultaneously in view. Claim rights are supposed to protect the autonomy or interests of the rights-holder, but whether those goods are secured depends on how the other agents are prone to act—including what mistakes they will likely make in trying to follow the guidance offered in their actual circumstances. They are best characterized as demands that the duty-bound do their part in a well-balanced social practice for navigating normative opacity.
4. The Social Approach
This chapter develops an alternative to the individualist characterizations of the content of claim rights. It holds that what agents owe each other under normative opacity is good-faith cooperation in a social practice justified by its ability to minimize and fairly distribute the costs of mistakes. It offers a normative signalling convention as such a practice, stabilized by a social norm treating conventionally signalling to be a way of genuinely exercising a normative power, provided that the receiver does due diligence, and signals are public knowledge and not unduly burdensome. If the convention satisfies this moral baseline, rights-holders have no moral complaint against mistakes resulting from their own signalling behaviour; reactive agents are responsible for all other errors, though they may be blameless given their evidence. The chapter ends with a discussion of how this specification of claim rights satisfies the theoretical roles discussed in the previous chapter.
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 draws on empirical research to compare the expected distributive consequences of the guidance issued by popular individualist accounts of consent (mental state, hybrid, and performative accounts) with the social signalling account. It demonstrates that given the strong gender bias in mistakes about consent, instructing 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. So in our actual conditions, the constitutive value of consent is best secured by adopting a normative signalling practice.
6. The Story for Self-Defense
This chapter demonstrates that communicative signals can be used to resolve opacity problems involving uncooperative agents (like aggressors in self-defense problems). It then urges that we must take a social approach to issuing guidance and making reasonableness determinations concerning mistaken self-defense, for two reasons. First, given the racial biases in threat-perception, a standard that merely guides agents to follow their best guess on their total evidence (as an individualist approach does) can be expected to compound, rather than address, the unjust racial distribution of mistaken self-defensive harm. Second, our present patterns of mistakes and indemnification strongly suggest that we are already using a conventional threat heuristic to guide reasonableness determinations—but unless we acknowledge that, we cannot effectively insist that it meet the moral baseline.
7. Our Obligations Under Opacity
This chapter traces the implications of the social picture for what we morally owe each other. It offers three converging arguments (Kantian, contractualist, and rule-consequentialist) for a strong ‘Rights-Rewriting’ claim: that when present, an adequately just coordination norm genuinely rewrites our objective rights—and thus what we owe each other as individuals. Even those not convinced by the strong claim should accept the more pragmatic Social Obligation claim, that because of the distributive effects, as a society we owe it to each other to adopt a social approach at least for public determinations of reasonableness. Finally, in the absence of adequately just social norms, we have duties of Rectification: as individuals we owe it to each other not only to refrain from making mistakes, but to work toward the introduction of adequately just norms.
8. Stewards of our Norms
The social approach urges that we understand risk concentrations created by unjust norms for navigating opacity as injustices which we are obligated to ameliorate. This chapter addresses two objections from the ‘Academic Pessimist’: (1) that no individual has a duty to reform social norms, because no one could succeed acting on their own, and (2) that it is unfair to blame, sanction, or hold agents responsible for mistakes for which they are not individually culpable. To answer the first, it leverages a discussion of the dynamics of norm change to highlight ways that individuals can help or hinder efforts at social reform. Replying to the second, it argues that we are liable to bear sanctions when our practices threaten others with unjust harm, and while reasonableness determinations and accountability should not turn on the blameworthiness of a mistake-maker, there is a role for guilt and blame in driving moral progress.
