Lani Watson, The Right to Know: Epistemic Rights and Why We Need Them

Lani Watson, The Right to Know: Epistemic Rights and Why We Need Them (Routledge, 2021)

Since the Victorian days of W.K. Clifford, when philosophy types have talked about epistemic duties, they have usually been concerned with “the ethics of belief.” This was a major focus of William  James, as well as such later philosophers as (my old grad school prof) Roderick Chisholm. That subject, which involves what steps we are obligated to go through in order for it to be OK for us to believe something, remains a hot topic in epistemology. Studies in that area, however, were not, or at least not mainly, directed at what the world is obligated to divulge to interested parties. On the latter, apparently moral, front, most philosophers have  probably taken a position closer to the one advocated by Peter van Inwagen in his metaphysics primer: “[E]ach of our beliefs and assertions represents the World as being a certain way, and the belief or assertion is true if the World is that way, and false if the World is not that way. It is, as one might put it, up to our beliefs and assertions to get the World right; if they don’t, they’re not doing their job, and that’s their fault and no fault of the World’s.”

Lani Watson takes a very different view of this matter. Her new book, The Right to Know, is a cogent brief for the claim that there’s a clear sense in which “the world” does have moral responsibilities in the area of information distribution. And these duties are owed not only to those who have expressly demanded epistemic goods. As philosophers have largely looked the other way, talk of the sorts of obligations about which Watson writes here has mostly been confined to jurisprudential and political arenas, where it has had significant effects. Laws requiring the dissemination of various sorts of information are now quite widespread. To give just one example, in the U.S., a number of “Right to Know” statutes involving distribution of material regarding the use of toxic chemicals in workplaces, were successfully pushed by labor groups and ultimately enacted in the 1970s. In addition to such statutory requirements to divulge information, there have also been numerous successful lawsuits directed at the spreaders of false or misleading “information” regarding products that have caused grave harm to consumers. (Hard as this may be to believe, it turns out that not a single cigarette brand has ever had medicinal value for the treatment of either pneumonia or pleurisy!)  Privacy protections that explicitly prohibit dissemination of certain types of information and many public record laws have also been promulgated.  In this book as well as in a prior paper aimed in part at “the mainstream media,” Watson compellingly argues that there should be many more (and more forceful) such requirements–both legal and otherwise.

There is a long-standing dispute among philosophers regarding whether there are rights that do not derive from legal pronouncements and official acts: edicts, statutes, regulation, court decisions, standard government procedures, and the like. In one of two fateful footnotes found in the book (FN 8) Watson writes, “The distinction between legal and moral rights is denied by legal positivists such as the nineteenth century philosopher Jeremy Bentham. For legal positivists, the only rights taken to exist are those established by legal codes.” Then, in a refrain that will be repeated quite regularly throughout the book, she tells us that she will not enter the fray on this matter. Now, it is true that Jeremy Bentham famously derided the view that there could be rights that are independent of human arrangements to protect human activities as “nonsense upon stilts,” and he was certainly also an early supporter of legal positivism. The problem is that Watson’s description of the latter doctrine is heterodoxical (if not simply incorrect). 

Legal positivism basically involves two simple positions that are both jointly and separately consistent with the extra-legal existence of moral rights. First, positivists must hold that the law as it exists in any jurisdiction should never be confused with what anyone thinks it ought to be. Second, positivists generally claim that the determination of what laws actually exist must be made by looking at their history or “pedigree” rather than their content. Thus, on the positivist view, if, e.g., a legislature has enacted something or a court has decided something in the manner such enactments and decisions are supposed to be made in that jurisdiction, a law has been made, though it may be a very bad one. Positivism is controversial, but not because either of its central tenets implies that moral rules cannot exist in the absence of legal pronouncements. Indeed, many avowed positivists have explicitly denied such dependence. Unfortunately, as H.L.A. Hart, perhaps the greatest legal positivist of the 20th Century, said back in 1958, “the nonpejoritive name ‘Legal Positivism,’ like most terms which are used as missiles in intellectual battles, has come to stand for a baffling multitude of different sins.”  Watson points out (actually quoting Hart!) that in the absence of any laws, promises seem to produce duties along with correlative rights, and it may be that such relationships as parent/child and voting/representation do as well. In any case, she concludes this misleading footnote by saying that “she will assume throughout the book that there are such things as moral rights.” And so she does. In fact, with her decidedly realist slant on rights, it seems odd that the subtitle of the book contains the phrase “why we NEED them” rather than “why it is so good that we HAVE them.”)

There are a number of other foundational areas that Watson indicates she intends to sidestep. We can usually see where she stands on those as well, though. For example, she says she’ll stay out of the Interest v. Will debate regarding the ultimate basis for epistemic rights, but she comes down hard against any sort of Razian take according to which rights are derivable from considerations of well-being (i.e., against the Interest side). Instead, her clear preference for Nagel’s “status as human beings” position repeatedly asserts itself. On that latter view, rights are intrinsic rather than merely instrumental goods, and therefore can’t be derived from prudential considerations, such as how much happier people would be if such rights were countenanced and enforced. That choice seems to me to make certain downstream determinations difficult, if not impossible. For example, we are asked to consider whether a suspicious partner has the right to insist that her friend (who is in the know) tell her whether her spouse is having an affair. Watson says that if such information has been promised to this partner, then an enforcement demand is in order, but if no such promise has been made, even if there is a duty to inform, there may or may not be a right to enforcement.  But how can we decide that matter if not through attempting to estimate the benefits and harms that would result from such enforcement?  (Indeed, Watson herself finds it necessary to backtrack on this matter in another fateful footnote, FN  54, where, in spite of all she has previously said on behalf of the “status” and against the Interest interpretation, she insists that she does not wish to take an “exclusionary position” on the question.) While Watson has a tendency to shy away from the “big issues,” it seems clear that her pronouncements are based on “common intuitions” or what she calls “colloquial understandings.” She concedes that intuitions on these matters may vary, suggesting, in fact, that where there is no unanimity we can infer that we are in the vicinity of a borderline case. And she adds that “it is important to acknowledge that such cases exist and are inevitable, given the complex moral terrain on which we all must tread.” It thus seems to me fortunate that she finally allows use of the “Interest”  considerations for the assessment of rights claims.  

Some of the secondary philosophical issues receive similar–sketchy and diffident–treatment. For example, we are told that newborn babies have epistemic rights in spite of having no capacity to know anything. How can this be? Her claim is that in spite of any counter-intuitiveness such rights-ownership will be obvious by analogy. For it is quite clear, Watson says, that those confined to wheelchairs have the right to walk even though they are unable to do so themselves. The babies are said to manage their rights-holdings by way of watchful, rights-enforcing proxies, generally parents or other caregivers, who CAN know things. Presumably, however, there need be no such ambulatory proxies in the area of the “walking rights” that we are assured that the wheelchair-bound hold. So the analogy seems a bit strained. Indeed, one may wonder whether, on Watson’s view, humans also have the rights to x-ray vision and invisibility in spite of our incapacities in those areas, or if it’s only where at least some (most?) human beings have the capacity to 𝝍 that all humans should be thought to have the (at least prima facie) right to 𝝍. These matters go undiscussed. We are again simply informed that it is our humanness that provides us with the “status” required to be epistemic rights-holders (although Watson also suggests that it’s possible that certain animals and AI programs may be similar enough to humankind to also make the grade).  Regrettably, if one comes to this book in search of a comprehensive (even entirely consistent) theory of rights ownership, or is looking for elucidation of the foundational issues in that area, one is bound to be disappointed.

But my readers should not infer from the fact that I have so far focused on what I take to be shortcomings, that these tell anything like the whole–or even the main–story. On the plus side, it should be noted first that even if one sticks just with the strictly philosophical portions of the book, Watson is very careful and informative in the area of taxonomy. She sets forth a clear and comprehensive Hohfeldian architecture for epistemic claims-rights, privileges, immunities and the rest. Whatever rights may be, Watson gives compelling reasons to believe that, if they exist at all outside of legal codes, the epistemic varieties of the sort in which she’s interested may be found among them. Her discussion of the distinction between infringements and violations is also careful and illuminating.

But there is much more.  In my view, the main value of the work is external to her meticulous and perspicacious categorization of epistemic rights among their relatives. The heartblood here seems to me rather to be found in her contribution to the political dimensions of the debate. However Watson may fare on the “big questions,” there is good sense both in her use of what she takes to be clearly shared intuitions in cases like those involving our relationship to our personal medical information, and her reliance on our attitudes toward enforcement as a test of whether or not there are only duties and no real claim rights around. For, based on those simplifying choices, she is prepared to write her brief on behalf of a number of newly minted epistemic rights. And a quite compelling brief it is. I think the success here partly stems from the fact that the provenance of the various constituents of a supposed right to know among other rights candidates isn’t terribly important on “the street.” Consider these putative rights: free speech, assembly and association, free press, conscience, low taxes, ownership of assault weapons, potable water, good jobs at good wages for every adult, suffrage, opportunity for schooling in every native tongue, either universal masking or guaranteed masklessness in public buildings, availability of cis-gender-specific bathrooms, etc.: as epistemic rights clearly belong somewhere in this batch too, one needs only to assert their importance relative to the rest. That is, it’s neither the philosophical foundations nor the niceties of arrangement that are either important to the general populace or likely to generate real heat: it’s the rough-and-tumble politics. And there is no doubt whatever that in that arena, the stages where municipal, state and federal battles over what should be required or permitted–who protected and who punished–that we find no end of violent debate. Fortunately for her readers, those are precisely the areas in which Watson’s book will be seen to shine brightly.

What expectations we may have for the completeness, accuracy and privacy of our personal medical information as well as for comprehensive, believable electoral news and the veracity of the advertisements we see and hear are, like the issues surrounding the other putative rights mentioned in the last paragraph, all political minefields. There is no shortage of advocates to be found on all sides, who will argue about benefits, harms, opportunity costs, victimization, maliciousness, naivete, feasibility, pointlessness, and all the rest. How, then, will it be decided what and whom to protect and what to leave alone?  Watson points out that one can push for  any of these:  (i) direct protections in law where there are currently only indirect protections provided by non-explicitly epistemic provisions; (ii) any sort of legal protections at all where there are currently only generally agreed-upon moral requirements; or (iii) recognition of moral obligations in areas where there is currently not even any consensus on that matter. Her discussion of how all three types of advocacy have and may arguably still need to come into play with respect to Purdue Pharma’s marketing and sales of OxyContin is both passionate and acute.  In  addition, I personally found revelatory both her discussion of AIDs-denial (particularly in South Africa), and her citations of 1950s(!) literature calling for the U.S. Constitutionally protected freedoms of speech and press to be optimally derived from ostensible rights to know. I believe and hope that other readers of Watson’s book who were, like me, ignorant in these areas will join me in further investigations.

To conclude, Watson’s itemizations of the countless, heartbreaking harms that have attended the lies propagated by Purdue Pharma and AIDs-denialists are disturbing and undeniable. Whether or not one agrees with her (and David Coady) that where people are wrong about things that they are “entitled to be right about” we will find oppressors who are guilty of the unjust distribution of knowledge and ignorance, no feeling person can ignore the thousands of deaths (in addition to even more numerous lesser but still horrific damages) that have arisen solely from the intentional dissemination of lies in just these two cases.  And whether or not we can see a clear path to a place where “mainstream media” (whatever that is, exactly) as well as governments, political parties, and sellers of clearly toxic goods can be coherently held to account for the dissemination of “fake news,” there can be little doubt that a space for epistemic rights and duties is crucial to democracy and requires additional exploration and study.  Watson is to be commended for her persuasive work in this critical sector.

About the Author

Walter Horn is a philosopher of politics and epistemology.

His 3:16 interview is here.

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