Acta Universitatis Lodziensis. Folia Iuridica, 109, 2024
https://doi.org/10.18778/0208-6069.109.10

Mariola Żak^*

https://orcid.org/0000-0003-1349-2246

The Theory of Epistemic (In)Justice in the Perspective of the Performance of Law: An Approach Based on the Concept of Hermeneutic Therapy

Teoria (nie)sprawiedliwości epistemicznej w perspektywie performowania prawa: podejście oparte na koncepcji terapii hermeneutycznej

1. INTRODUCTORY REMARKS

The paper presents a legal analysis of Miranda Fricker’s theory of epistemic (in)justice in the context of the neo-Wittgensteinian philosophical trend, also known as therapeutic or resolute.^[1] According to the theory in question, there exists a distinct kind of (in)justice inflicted on knowers (knowledge producers, testifiers) or due to their cognitive abilities (cf. Bublitz 2023, 1–28). One of the highlighted problems is epistemic dependence – an asymmetric distribution of dynamic hermeneutical resources (cf. Grygieńć 2021a, 11–28). Epistemic dependence is a relationship oriented towards achieving epistemic goals (e.g. justification) and at the same time a form of epistemic oppression, which, in turn, is a phenomenal form of epistemic injustice. It concerns exercise of a vulnerable knower’s agency in meaning-making and knowledge production processes. The legal system is built on socio-epistemic structures that are rooted in and reinforce the existing inequities. At the systemic level, one such structure is epistemic injustice (Glaberson 2024, 456). The therapeutic approach demonstrates that this dependence is an element of language games, subject to contextual doubt and revision on a case-by-case basis.^[2] It enables the identification of various forms of epistemic (in)justice, understood as real-world phenomena (lived experience) or practices reported in the literature.

Eliminating epistemic asymmetry on a universal scale seems impossible due to the so-called paradox of emancipation inherently embedded in power relations (both in a substantive sense, based on coercion – power-over or concentrated power and in a generative or communicative form, e.g. characterised by non-subjective, informal networks – power-with, power-to) (Hendriks 2008, 173–184). Additionally, the functioning of legal institutions is subject to specific legal-procedural rigour, where hierarchy (e.g. non-equivalence of parties in administrative legal relationships) and formality, distinct from formalism, are necessary attributes of the law. This paradox concerns the relationship between knowledge production and power dynamics that shape the discursive construction of what is “true” or “false” (Ferreira 2022, 314). The “paradox of emancipation” in legal terms involves the reproduction of the existing power dynamics that exclude socially-situated knowledges of marginalised groups (epistemic dependencies) through legal decisions, leading to the initial and systematic privileging of the lawyers’ perspective in the process of creating normative meanings3 (cf. Carter, López 2024, 34).^[3] In other words, in their effort to overcome instrumental rationalities or oppressive episteme, individuals (e.g. judges, practitioners, and academics) also partly stabilise them. Legal reasoning produces authoritative knowledge regarding human behaviour and social relations (Gutiérrez 2024, 209). Thus, in accordance with the normative approach, lawyers shall forgo the advantage of possessing superior knowledge, avoid professional jargon and mediate in normative universalisation of legal statements through translating legal requirements into the subjective language of everyday interactions for citizens. As a result, a theoretical shift occurs from deterrence to compliance (legitimate coercion). On the one hand, the higher the normative expectations or conditions imposed of lawyers and communication to break the cycle of relational and structural domination stemming from legally-constituted public power,^[4] the more their fulfilment becomes unrealistic in empirical (factual, sociological) circumstances. On the other hand, the more the deliberative approach mitigates or relaxes the rigours or restrictions of these normative requirements (e.g. the strict consencus, the ideal speech situation), the more it diminishes in its critical impact, which, in turn, is associated with a return to more idealistic and rigorous assumptions of the theory. Prima facie, one could consider this paradox insurmountable due to empirically confirmed differences in power structures and in the linguistic, cognitive, and communicative resources of individual participants in legal discourse. In such an approach, law is anchored in violence, hence the epistemic relationship between experts and laypeople is always somewhat asymmetric, and its basis lies in (en)trust or reliance (cf. Grygieńć 2021b, 33). Trust and trust conflicts are partly born of ignorance. In contrast, from the perspectives of the theory of epistemic (in)justice and legal agency, laypeople (hermeneutically disadvantaged persons) play the role of experts possessing (experiential knowledge) necessary to make a fair decision. However, this knowledge is often systematically ignored or belittled and vulnerable knowers are denied opportunities to participate in sense-making and concept-mining activities.

The issue of uneven participation in legal culture is recognised within various “types” and “generations” of normative theories of deliberation, and in different “turns” in its scope.^[5] Realistically utopian proposals in this regard are optative (grammatical statements used to express wishes, desires, or hopes) and based on “dogmas” (strong or hard normative assumptions) about communication, language, and meaning.^[6] The utopian realism perspective they adopt does not provide adequate means to criticise epistemic asymmetry and fails to confront the presupposition of equality in the principle of social dialogue with forms of epistemic (in)justice in the field of law (cf. Levy 2018, 368).^[7] A crucial element of this dialogue is shaping the set of norms that, from the perspective of a minority community, provide an impression of justice. In this paper, I look at this problem from the “epistemological angle” (cf. Gutiérrez 2024, 210). The original proposal for the study of social episteme (the system of meanings, including collective beliefs – propositional attitudes)^[8] in the context of the relationship between law and its broader social background is Type III deliberation which proposes the hermeneutic (non-dogmatic) concept of deliberation based on a therapeutic (descriptive and critical) approach inspired by the method of language games (cf. Ufel 2023).^[9] My research aligns with the broader current of studies on epistemic (in)justice in the context of the theory of deliberative democracy (cf. Schmidt 2024, 1–10).

The paper puts forward the following thesis: the application of the theory of epistemic (in)justice in legal sciences allows the delineation of the therapeutic dimension of legal language games, focusing on the participation of knowers or subjects of knowledge, including differently-situated individuals with vulnerable (prone to marginalisation) traits in the creation of normative meanings. Legal language games are language games that serve as coordinators of social institutions or synchronisers of structures organising social life.

In the first step, I will discuss the main assumptions of the theory of epistemic (in)justice and its forms, demonstrating that the normative approach in this area does not offer adequate means to examine the problem of creating language and concepts reflecting the experiences of individuals characterised to an equal extent by a given sensitive trait. In the second step, I will complement the theory in question with a therapeutic-resolute interpretation of the late Wittgenstein’s thought.^[10] In the third step, I will demonstrate that the full application of the proposed theoretical innovation requires a consideration of legal imagination as a tool for capturing the extremely delicate matter of “playing” law (the performance of law). The final step will involve the identification of crucial legal institutions that constitute the areas of the application of the theory in question as well as the development of a case study. In the first, second, and third steps, I will use the “from philosophy to law” approach, while in the fourth step, I will adopt the “from law to philosophy” perspective (cf. Zirk-Sadowski 2021). I will apply analytical and descriptive methods and critical legal studies with elements of feminist legal methodology.^[11]

2. THE CONCEPT OF EPISTEMIC (IN)JUSTICE – BASIC ASSUMPTIONS AND VARIETIES

Miranda Fricker distinguishes between two species of epistemic injustice: testimonial injustice and hermeneutical injustice. The author points out that

[t]estimonial injustice occurs when prejudice causes a hearer to give a deflated level of credibility to a speaker’s word; hermeneutical injustice occurs at a prior stage, when a gap in collective interpretive resources puts someone at an unfair disadvantage when it comes to making sense of their social experiences. An example of the first might be that the police do not believe you because you are black; an example of the second might be that you suffer sexual harassment in a culture that still lacks that critical concept. We might say that testimonial injustice is caused by prejudice in the economy of credibility; and that hermeneutical injustice is caused by structural prejudice in the economy of collective hermeneutical resources (Fricker 2007, 1).

Epistemic (in)justice is subtly embedded in many other types of (in)justice (e.g. distributive, restorative) and (un)equal treatment. Epistemic justice is a condicio sine qua non for non-domination as non-neutrality. Epistemic injustice results from language resource variability. The theory of epistemic (in)justice concerns knowledge claims of disadvantaged groups inhabiting peripheral, degraded, underrepresented areas (e.g. uneducated slum dwellers, migrants, refugees, stateless people), minorities (e.g. LGBTQIA+ persons seeking asylum), and the weaker (e.g. defendants in SLAPP lawsuits). The “weakness” of an individual’s position may result from subjective and social biases, perceived through the prism of entrenched negative stereotypes (e.g. related to gender) (Safjan, Mikłaszewicz 2011, 33). Yet, assigning certain groups the status of the weaker (e.g. children in care) can be stigmatising for them. The theory of hermeneutical injustice has a structural and relational dimension, because it refers to cognitive gaps or blind spots in the systemic knowledge, remnants of the historical, conceptual, or intersectional exclusion of certain groups from knowledge production processes, and lacunae in the legal conceptual framework, resulting in the lack of legal definitions of certain concepts (e.g. stateless person). On the one hand, some individuals (e.g. asylum-seekers) lack the conceptual apparatus and interpretive tools needed to make sense of their experiences, ultimately limiting their ability to articulate those experiences (cf. Ferreira 2022, 303–326). On the other hand, testimonial injustice concerns the credibility of the speakers and their argumentation, deposition, or explanations about their lived experience (experiential expertise). According to M. Fricker, the reference point for evaluating the strength of evidence (e.g. testimony based on memories revealed through trauma-focused psychotherapy (cf. Bublitz 2023, 1–28) or evidentiary conclusions is their evaluation through the prism of the standards of the ethics of knowing and legal interpretation.

Kristie Dotson and Gaile Pohlhaus Jr. also distinguish contributory injustice.^[12] It is an intermediate form between testimonial injustice and hermeneutical injustice, and results from intentional hermeneutical ignorance that immunises the hearer from the discomfort of doubts (cf. Corso 2023, 103). This type of injustice occurs when oppressed epistemic communities can create alternative hermeneutic resources, but these resources are rejected or discredited by the dominant group (Pohlhaus Jr. 2012, 715–735). Those historically excluded from knowledge production or the realm of social understanding (e.g. indigenous people living in Canadian territories with direct experiences of the impact of specific investments on the environment) as well as disadvantaged or weaker groups (e.g. mentally ill patients, women-“home managers”, incarcerated people) possess different levels of oppositional consciousness, which is why they cannot contribute equally to the collective understanding of their rights (e.g. home-working women’s right to privacy, the right of indigenous peoples to consultation and ownership).^[13] Experiential knowledge produced by them cannot become reflexive and reciprocally influence the law. Testimonies shaped by meanings (ways of using words) adopted in a particular group do not contribute to the linguistic representation of the world – a collectively shared pool of epistemic means (linguistic structures, expressions, conceptual metaphors). Due to wilful ignorance on the part of hearers, this representation does not reflect the epistemic reality experienced by all knowers whose knowledge it concerns. The theory of contributory injustice examines the intentions behind hearers’ opinions and is the criterion for evaluating the quality of listening, cross-examination, and constitutional hearing. The scope of this paper does not allow for a detailed analysis of this issue.

3. JUSTIFICATION FOR NOT USING THE NORMATIVE (DOGMATIC) APPROACH, OR ABOUT THE WEAKNESSES OF THE DELIBERATIVE APPROACH TO THE FRICKERIAN THEORY OF EPISTEMIC (IN)JUSTICE

In literature, the category of the deliberative approach is often encountered in the context of political practice or dispute resolution, but it very rarely appears in the context of knowledge-sharing processes. The theory of epistemic (in)justice provides fertile ground for normative analyses embedded, explicitly or implicitly, in idealistic or realistic currents of the deliberative theory. It is emphasised that the active facilitation of just (equal), mutual linguistic exchange, the process of perspective-taking (actively imagining others’ experiences), the social inclusion of speakers, and the exercise of empathetic skills and “testimonial sensibility” by hearers are all essential (cf. Muradova 2021, 644–664; Sorial 2022, 215–231). According to the doctrine of political liberalism, equality is an implication of dignity, and the principle of formal equality before the law guarantees equal opportunities (equity). It is thus necessary to expand the procedural framework of legal and judicial deliberation with new normative standards to ensure substantive equality of speakers. These standards can be interpreted from the perspective of normative ethical theories: deontologism (e.g. John Rawls’s account), non-utilitarian (objective) consequentialism (e.g. Amartya Sen’s account), or aretology (e.g. Martha Nussbaum’s account). The first theory emphasises the need for hearers to fulfil specific hermeneutical duties and obligations, the second one lacks an enumerative catalogue or set of abilities in this regard, while the third one underscores the necessity of creating an objective list of epistemic virtues enabling benevolent co-understanding (cf. Sorial 2022, 221).

M. Fricker and other researchers (e.g. José Medina, Elizabeth Anderson) adopt the aretaic position, expressing it in the development of “corrective” (prejudice-neutralising) individual epistemic virtues (such as impartiality, open-mindedness, epistemic vigilance, intellectual sobriety, epistemic resistance, and reciprocity), institutional virtues, and protective epistemic character traits in contrast to vices (such as intellectual recklessness, naïve cynicism, epistemic laziness, carelessness, hubris, cultural blindness, and linguistic subterfuge).^[14] Epistemic virtues are individual cognitive and valuable dispositions or remedies that serve to reduce hearers’ identity biases woven into the fabric of our lived experience. These prejudices contribute to the stereotyping of various aspects of a person’s social identity and can affect the attribution of competence and sincerity, which are essential components of epistemic credibility (cf. Fricker 2007, 32). Epistemic virtues are not absolute and unconditional. They are contingent, progressive, and relative in character.

Imposing additional normative expectations on privileged hearers or speakers participating in deliberation can generate reverse epistemic injustice. The proponents of the deliberative approach to knowledge exchange and production processes based on mutual understanding (e.g. Susan Dieleman, Catriona Mackenzie, Lala Muradova, Sarah Sorial) and the aretaic interpretation of the theory of epistemic (in)justice (M. Fricker) valorise the role of substantive equality (as understood, inter alia, by Sandra Fredman). Yet, they do not conduct a comprehensive analysis of the objectivity of knowledge in the context of the actual differentiation of the status and real position of knowers in the social or personal system. These factors translate into the issue of representing the experiences of knowers in the grammar of legal language (the ways of using linguistic expressions which are constitutive of practice, meaning, and concepts).^[15] Judges, as individuals distinguished by legal knowledge, members of a ruling elite, have authority over the interpretation of speakers’ narratives and the integration of normative meanings in culture, which places them in a more favourable position than laypersons. Expert individuals “fare better in a discussion defined by themselves, can convince others of imposed standards, solidifying and reproducing the existing system. (…) In reality, we have deliberation controlled by the dominant group or groups based on standards presented as universal and serving everyone equally” (Tobiasz 2016, 112).

The normative (idealistic) approach to the theory of epistemic (in)justice is not entirely adequate, because it relies on the narrow conception of the objectivity of knowledge (cf. Crary 2018, 48–49, 51, 56). Referring to Ludwig Wittgenstein’s terminology, it can be said that, in this approach, hinge propositions,^[16] which serve as a substitute for objective knowledge and a point of reference for empirical sentences, stem not so much from sensitive observation and lived experiences as from the realistic utopia of aseptic reason. This occurs at the expense of accepting an inadequate assumption about the existence of strong normative spheres and the metaphysical grounding of epistemic virtues and skills in the anthropological paradigm of homo narrans as one of the arbitrary approaches to human nature.

Narrative is a language game of an ambivalent or ambiguous nature, because it can be both good and bad in the normative sense and in relation to deliberative ideals (cf. Boswell 2022, 333–344; Ufel 2023, 241).^[17] It can structure testimonies and collective social understanding as well as it emphasises alternative interpretations of truth, a historicising pattern of knowledge (“plot-characters-moral”), and the expressive aspect of giving meaning to the nuances and complexities of the issue (cf. Skuczyński 2020, 2–6, 10; Muradova 2021, 660). Legal narrative has both inner and public dimensions. It can create the possibility to make hermeneutical resources intelligible or visible in a single moment of testimonial exchange (cf. Ralph 2024, 1345, 1351; Medina 2011, 16).

However, narrative statements are not brute facts. They are extra-rational means of argumentation. A narrative remains a persuasive tool susceptible to an excess of credibility, mytholologisation (e.g. the standard victim-blaming narrative of rape constructed by rape myths as highlighted by Emily Tilton, “greedy” consumer claims, “fake” and “bogus” asylum claims based on sexual orientation and gender identity (SOGI) as underlined by Nuno Ferreira), systemic biases that justify discrimination, false representations of testimonies (“toxic narratives” or dogmatic ones which turn out to be roots of a gross distortion of reality as underlined by John Boswell, Marco Armiero, and Iwona Jakubowska-Branicka), and epistemic exploitation (cf. Fricker 2007, 132).^[18] The latter occurs when a person’s experiences are betrayed through the telling (reporting) of a story by someone who does not share the lived experience (e.g. when a prosecutor publicly defends the “law and order” position on behalf of a person experiencing domestic violence, regardless of whether the person supports this position; or when a lawyer defends their client in a way that does not reflect the accused person’s experience adequately) (Washington 2022, 1111; Picinali 2024, 24). The experience gained through the constitutional crisis confirms that various forms of epistemic injustice and exclusion patterns can be subtly embedded and interlocked in narratives which may virulently fill hermeneutical gaps in accessing epistemic justice. As Lala Muradova points out, “[p]otential biases in the stored knowledge may lead people to make erroneous inferences about another person’s feelings and thoughts” (Muradova 2021, 648).

Narratives of lawyers representing the stronger party to the contract (e.g. corporate client) may be structurally prejudiced, deprive those in a weaker (de facto unequal) procedural position of a sense of epistemic credibility and agency, and may also serve to prompt judges with biased interpretations (fables) of the law. In this context, the narrative contributes to systemic epistemic injustice. This issue in private law is discussed, inter alia, by Lyn K. L. Tjon Soei Len.

Narrative knowledges function based on rhetoric, appealing to opinions that may be based on a desire for dominance (cf. Sullivan 2017, 295). “Filtering” the content of narratives according to the pattern of virtuous hearing has little cognitive value in reformulating linguistic structures that perpetuate an epistemic dependence. Therefore, I propose the therapeutic approach to the theory of epistemic (in)justice. This approach is based on concepts of language games and wider objectivity (A. Crary). The consequence of this theoretical choice is the acceptance of non-essentialist methodological standards of an embodied conception of knower (e.g. Shaun Gallagher’s approach), situated knowledges (e.g. Donna Haraway’s approach), and standpoint empiricism (e.g. Nancy Hartsock’s approach). In this approach, schematas or frameworks for generating knowledge, reason (justification rationality, reflective reasoning), and imagination are local and contingent in character and result from the historical interplay of various language games, while epistemic tools (dogmatic ones) and theories are burdened with inherent limitations (e.g. ideological saturation), which can only be overcome contextually (cf. Sorial 2022, 228). A person does not enter into language relationships as a rational, autonomously judging individual (such as in realistically utopian models of deliberation), but, under the influence of various language games, something is formed that we are inclined to call our own rational judgement (Ufel 2023, 311). The concept of epistemic injustice “is ultimately more a matter of the facts than the law” (Rogacka-Rzewnicka 2023, 1130). The main practical implication of the approach to the theory of epistemic (in)justice that I propose is the enhancement of criteria for legislative and judicial empirical analysis of hermeneutical resources or epistemic advantages of vulnerable knowers by the incorporation of some elements of hermeneutic therapy into legal evidential (factual) reasoning.

4. CREATING KNOWLEDGE THROUGH LANGUAGE GAMES – THE THERAPEUTIC-RESOLUTE APPROACH IN LAW

The theory of epistemic (in)justice in the normative perspective refers to the idea of the regulatory dogmatism of reason. Public reason is neutral towards situated knowledges (ethically-loaded perspectives), which results in their non-consideration in the practice of interpreting programmatic norms (policies).^[19] Emotions and other normatively-loaded concepts are treated as a non-conceptual “given.”^[20] Conflicts of rules are resolved at the abstract level, detached from the actual situation of sensitive groups or the variable linguistic knowledge base. In the therapeutic approach, a broad and situated approach to social episteme objectivity is essential. Our view of the world is always a “view from somewhere” (Ufel 2023, 275). Language is rooted in lived experiences, enabling the creation of concepts and the transmission of information. Affect and emotions allow the conceptualisation of the relationship between the world and the properties and conditions of knowers. They reveal authentic forms of suffering (epistemic harms), thereby providing us with a more objective understanding of the world (cf. Crary 2002, 97–118; Fricker 2007, 162). Emotions are enfleshed interactions with the social environment, a factor that stimulates critical cognitive processes due to behavioural reactions suggested to rational consciousness by the imagination (the act of creating an alternative version of the world). Testimony is a non-purely rational form of discourse, a source of first-hand knowledge, a sentence construction based on images (world-pictures), and as such belongs to the class of local de jure hinges (Boncompagni 2020, 14). It allows the naming of what has no developed terminological vocabulary and the explaining of new knowledge. Reading the works of L. Wittgenstein suggests that imaginative experience (imagining something, creating imaginative schemes), implicit or tacit knowledge (know-how), communication, and professional skills of hearers are all local de facto hinges of every knowledge acquisition game.

As Wittgenstein points out, “[t]here is not a philosophical method, though there are indeed methods, like different therapies” (Wittgenstein 2000a, 78). The therapeutic interpretation of the theory of epistemic (in)justice involves applying the conceptual categories used in it to critique legal language games seen as practices of creating social episteme.^[21] This is a significant and plausible alternative to the normative approach, which assumes that public reason constitutes an ideal standard of deductive reasoning (“from general to particular”), creating meanings autonomously, independent of the discriminative power of hidden or concealed motivations, the context of language use, and the actual circumstances of a specific case. Public reason uses idealised figures – general-abstract principles of justice – and it abstracts from neglected ways of knowing such as embodied cognitive mechanisms (imagination, intuition, language reasoning) distinguished in cognitive legal humanities (cf. Brożek 2018, 17). Such an approach easily leads to the trivialisation of knowledge or moralising and does not provide a experiential insight into the lived experiences involved in the mechanisms of the game, which operate according to rules – a set of grammatical and hinge propositions (the ways of seeing the world). Among these rules are forms of epistemic abuse (e.g. presumptions dictated by cultural or psychological biases rooted in social awareness, false or coerced confessions). On the one hand, they constitute dysfunctional (biased) epistemic resources of legal language games that distort our linguistic image of the world. This allows us to reconsider the essence of judicial truth and the principle of material (objective) truth. On the other hand, language games can be used to analyse the issue of giving normative meaning to empirical sentences describing socially-significant but unnamed experiences of a particular person.

The theory of epistemic (in)justice relates to the study of the standard of fact-finding practices with legal significance. It is essential to “point out various forms of epistemic injustice (unfair argumentative advantage) resulting from legal or practical «privileging» of certain types of evidence (including statistical and probabilistic evidence), adopted rules of burden of proof distribution, presumptions, etc.” (Dyrda 2021, 31). Legislative and judicial decisions shall unveil and examine nuanced justice implications of the subject of the case. In this context, the hermeneutical therapy focuses not only on identifying the communicative pitfalls or pathologies to which the law is exposed, but also on mechanisms for changing the “aspects of seeing” in the context of detecting misjudgments of the credibility of a testimony as well as the causes of the miscarriage of justice. The change is fluid. It concerns the implicit understanding of certain issues and opinions on public matters, the recognition of and support for specific problems, solutions, programmes, as well as a more personal shift in perceiving one’s own identity or individual and group interests (cf. Ufel 2023, 319). Yet, “there may only be discursively constructed «truth» and «fakeness» rather than objective ones” (Ferreira 2022, 326).

5. LEGAL IMAGINATION AS AN OPERATIVE CATEGORY OF THE EPISTEMIC (IN)JUSTICE THEORY, OR ABOUT THE PERFORMANCE OF LAW

An essential aspect of the epistemic (in)justice theory is the practice of dialogue between hearers and speakers. The legal professional plays an actively accompanying role in relation to the knower (cf. Walker 2020, 25). Dialogue is based on an active process of transitioning from one’s own position to the perspective of someone else – the ability to see oneself through the eyes of others, referred to in psychology as decentration (cf. Koczanowicz 2020, 46). The latter is linked to resilience.^[22] Deliberative contexts in the hermeneutic approach are polyphonic. Words are powerful instruments for understanding the world. Hermeneutically marginalised individuals can enrich the “public lexicon” (language games) with new meanings of words that are essential for understanding the standards of a particular social normativity (e.g. the rules of an oppressed group concerning their relationship to specific cultural heritage). Words are dialogic and performative in character, because they emphasise the multitude of interpretative positions, which create a context of communication (cf. Medina 2017, 209, 218; Ufel 2023). The court reconstructs the factual state of the case based on testimonies led by particular experiences or the language of the oppressed. It is possible to expand a limited (partial) perspective of understanding lived experiences for accurate truth-seeking and comprehensive evaluation of evidence.

Decentration (distinguished from decentralisation) may be perceived as an aspect of legal imagination in the perspective of creating a potential path for change in institutions. Imaginative thinking interacts with conceptual thinking and encompasses multiple dimensions (cognitive, perceptual, affective). Imagination is a mental tool subject to the control of will, allowing the development of alternative associative patterns provided by metaphors and other hermeneutical resources or mechanisms of debating law that underpin cognition. Its function involves envisioning (encoding meaning), awareness, and the juxtaposition of epistemic (cognitive, noetic) experiences or emotions (feelings) in specific circumstances, including oppressive social contexts (e.g. racism, sexism, classism)^[23] (cf. Sousa 2007, 139–161).^[24] Affective factors in communicative practices may distort facts related to a person’s social identity (Burlando-Salazar 2023, 1254). Facts may also be overshadowed by improper assessments of a witness’ credibility. Imagination is resolute in character because, it helps reveal tensions in this area.^[25] It allows the reconfiguration of legal language games by changing the boundaries of figurative language to include new concepts which describe forms of epistemic (in)justice that are not entrenched in language (cf. Páez, Matida 2023, 13).

The category of legal imagination has been applied since the 1970s within the law and literature movement and is the subject of analyses in the jurisprudence of embodied mind. The latter has been developed, among other influences, under the thought of Maurice Merleau-Ponty (the so-called philosophy of attention). Concrete concepts of legal imagination are presented in areas such as legal theory (Amalia Amaya, Maksymilian Del Mar), constitutional law (Michael W. Dowdle, Zoran Oklopcic, Alexander Somek), international law (Martti Koskenniemi, Gerry Simpson), IT law, and legal tech (Leila Brännström, Markus Gunneflo, Gregor Noll, Amin Parsa).^[26]

A common point in various theoretical approaches to legal imagination is the close connection between the state of potentiality (unexpected interpretative possibility) and empiricism. Counterfactual thinking is the beginning of innovative actions. Imagination is an element of the mind that supports legal reasoning, responsible for mental simulations, “playing” images, and embodied experiences (e.g. the tone and rhythm of speech, body language) (cf. Brożek 2018, 77–128). This aspect of “playing” is called theatrical and brings legal language games closer to performing arts. The performative power of language lies in creating a reality that had not existed before. Each legal performance is unique and unrepeatable. Artistry (the performance of law) is a kind of therapy that aids the balance between the freedom of interpretation (expression) and its cognitive or affective limitations in the context of breaking the linguistic boundary of legal interpretation. Legal practice is based on reflex and thoughtfulness, while the distinguishing features of artistic craftsmanship, artistic work methodology, and theatrical operatic methods are situational improvisation, cognitive empathy for alternative “aspects of seeing” the world, and embodied mindfulness (cf. Leiboff 2015, 86).^[27] Senses are socially-constituted through action and if it meets with social appreciation, a performative identity and legitimacy is created (Skuczyński 2016, 161). In this context, the perspicuous representation of meanings is crucial. One can view the courtroom as a real-world interpersonal deliberative setting and the lawyer as an imaginator who recentres the marginalised (sidelined) perspective by resolutely re-picturing the social imaginary of vulnerable traits (cf. Muradova 2021, 652). The social imaginary is a symbolic “repository of images and scripts that become collectively shared”, which “provides the representational background against which people tend to share their thoughts and listen each other in a culture” (Medina 2011, 16, 33). The theory of epistemic (in)justice helps better understand the needs and expectations of members of oppressed groups, the third party, or non-academic co-researchers, who may provide informations and crucial evidence for particular cases or issues. Their testimonies may “co-judge” the decision and inform legal terms (cf. Gaakeer 2024, 348). Imagination implies the studiousness of audience’s experience, human problems, and affairs. Drawing inspiration from Alain Badiou’s thought, it can be said that every case or testimony is an “event.”

A legal professional can reduce forms of epistemic injustice (e.g. in the context of procedural power imbalance based on informational advantage of the stronger party to the contract) by “healing” reasoning patterns. Imagination is stimulated by epistemic anxiety. The latter is an emotion that responds to epistemic risk – the risk of over-interpretation, belief in cognitive error (e.g. the false consensus effect), and misunderstanding or drawing conclusions about a knower, e.g. a mythomaniac,^[28] a person with multiple personality disorder, a survivor-perpetrator of aggressive suicide, a murderer, and a victim of a domineering partner who endured prolonged domestic violence (cf. Fricker 2013, 1329–1330).^[29] Imagination allows the introduction of a dose of humanistic spontaneity into law. The work of imagination is an element of multi-voiced therapeutic mediation (experience-based therapy) – a legal-practice methodology focused on situationally-adequate solutions. Its essence lies in reducing epistemic pressure through a dialogic analysis of linguistic misunderstandings or dogmatic nonsenses at the level of open conceptual structures and deep grammar (the description of ways in which words are used in different contexts). Social reality is in flux and too variable to present universal normative patterns in this area. Diagnosing the causes of perplexities or linguistic dilemmas in legal language games requires the use of abduction, techniques of “design jusitce”,^[30] question, iterative and lateral thinking inducing situational changes in the “aspect of seeing” a legal issue.

In the light of the concept of performative law, imagination supports trans-conceptual communication^[31] in accordance with the conception of wide objectivity of knowledge, which assumes that the world is accessible to the mind in a way mediated by concepts. This approach can help us „move beyond the potentially stereotypical thinking about the modes of communication employed by marginalised groups” (Schmidt 2024, 6). Human experiences are situated in a specific language game, influencing which features of the world and meanings of words they consider essential. The therapeutic and resolute use of legal imagination supports the transformation of “aspects of seeing” (conceptual change) through hearing, questioning, sober reassessment, and replacing previous interpretations with new ones. The central problem of any legal language game is the performance of law. Language may be a source of epistemic injustice. Legal imagination transcends the boundaries of knowledge and it may be bound by dogma and jeopardise epistemic justice through forms of language, so it is necessary to use this epistemic tool carefully and through the prism of hermeneutic therapy.

6. EPISTEMIC (IN)JUSTICE – APPLICATIVE LEGAL INSTITUTIONS

6.1. Hermeneutic (in)justice and testimonial (in)justice in the legal cognitive process – crucial areas and empirical examples

The theory of epistemic (in)justice can be applied as a legal tool in legal practice. By applying the therapeutic approach, I will present crucial legal institutions – hermeneutic “hotspots” – within which both forms of the theory in question find application.

The theory of hermeneutic (in)justice pertains to the failure to name and consider a specific individualised experience socially relevant, thus applying and perpetuating detrimental conceptual categories in language. Consequently, pursuing or questioning something that cannot be named is not possible. The case of Carmita Wood, who contributed to the formulation of the concept of sexual harassment and its inclusion in legal language in the 1980s, demonstrates that epistemic material possessed by a marginalised rights holder can play a pioneering role in creating meanings (cf. Fricker 2007, 149–162).^[32] Hermeneutic deliberation transforms constitutional case-law games that pave interpretative paths in law and can be enriched by the assumptions of the theory in question.

The theory of epistemic (in)justice has practical implications for exercising the power of constitutional review. The reference point for analyses in this area is the principle of equality. It concretises epistemic justice concerning the examination of the identity of similar subjects and ensures advocacy organisations representing marginalised and minoritised groups the ability to supplement hermeneutical resources that contribute to the collective understanding of the experiences of these groups. Polish constitutional case-law is not consistent in the practice of interpreting the principle of the equality in law. The cause of this methodological inconsistency is the Constitutional Court’s [Pol. Trybunał Konstytucyjny] reliance on various theoretical concepts and the application of different conceptual frameworks that refer to interpretative standards shaped against the background of pre-constitutional, Strasbourg, or Luxembourg case-law (Ziółkowski 2015, 100). Furthermore, the assumption is made about the non-autonomous constitutional nature of the right to equal treatment (Ziółkowski 2015, 104). The constitutional principle of equality is a second-order right (meta-right). It is a construction principle referring to the application of other constitutional norms and takes the form of an interpretive rule (Ziółkowski 2015, 103). According to established case-law, when assessing whether a violation of the principle of equality expressed in Article 32 of Constitution of the Republic of Poland has occurred, the Constitutional Court applies the equality test (cf. judgment of the Constitutional Court of March 18, 2014 (SK 53/12, OTK-A 2014/3, item 32)). This test consists of three elements: 1) assessing the similarity of the subjects compared (the obligation to treat similar subjects equally, the prohibition of treating similar subjects differently); 2) identifying the criterion of differentiation; 3) assessing the constitutional permissibility of differentiation according to the requirements of relevance, proportionality, and axiological adequacy (Ziółkowski 2015, 105).

From the perspective of both constitutional beneficiaries of rights and the methodology of the constitutional court, it is justified to expand the equality test to criteria related to the equal treatment of similar subjects from the perspective of epistemically-sensitive characteristics. Firstly, when assessing the similarity of subjects based on a common relevant feature, the category of difference as an epistemic counterpoint must be taken into account. The relevant feature is a property of epistemically similar subjects. A sensitive feature is its synonym, which emphasises what is different, separate, and individual in the structure (profile) of a marginalised subject of constitutional rights and freedoms (e.g. a non-citizen, disenfranchised individual). Differences may be analysed through the prism of voices briefs or legislative testimonies, current social knowledge resulting from the exchange of epistemic experiences, and the mutual overlap of their interactions (cf. Ralph 2024, 1374). Secondly, when examining the criterion of differentiation, the social experiences of individuals with intersectional identities should be taken into account. Thirdly, when evaluating the proportionality of differentiation within economic, social, and cultural rights related to knowledge (e.g. the right to be believed or to found to be persuasive, sexual education, information, legal counselling), it is necessary to analyse whether the consequence of introducing a specific barrier to access to knowledge will not limit the personal rights (e.g. reproductive or sexual rights) of weaker individuals. This limitation may exacerbate bias and prevent the articulation and naming of experiences and their inclusion in a collective interpretation base. Social data in this area may not reach constitutional hearers. A quantitative analysis of the vocabulary used in justifications of the Constitutional Court’s judgments (previous judgmental practice) does not provide a complete picture of hermeneutic (in)justice: and may co-generate epistemic paradoxes of self-reference (e.g. the knower paradox). The weakness of such an approach in the light of the results of empirical legal research is highlighted by Tomasz Stawecki and Jan Winczorek (cf. Stawecki, Winczorek 2015, 528). It is prudent to pay attention to the following issues: forms of representing the knowledge of communities susceptible to marginalisation in protective regulations regarding weaker people and advocacy activities and epistemic rights, the essence of which are the knowledge claims of similar entities to obtain the level of credibility or veracity they deserve and not distorted by prejudice. The source of prejudice and other “grammatical” epistemic errors may be the application of a cognitive and interpretive scheme inconsistent with the gradable standard of epistemic rationality, i.a. inappropriate use of language in a given context. This standard is based on very weak deontic power.

In turn, the theory of testimonial (in)justice finds application in interpersonal deliberation between professional and non-professional actors and actresses in the legal order (e.g. during public hearing in law-making process, the implementation of the right to be heard). Testimonial injustice may be intentional or unintentional (negligent). Assuming that procedural law serves as an epistemic tool for realising the principle of equal treatment, testimonial justice is an aspect of procedural justice (cf. Bublitz 2023, 1–28). Law is a “narrative” system that policies what testimonies can be developed (cf. Ralph 2024, 1336, 1340). In outsider jurisprudence, it is noticed that the “legibility of legal claims” of minorities requires simplifying their complex knowledge and translating it into arguments and claims that are recognised in legal language.^[33] They are faced with the need to categorise their ineffable notions and experiences according to the logic imposed by legal terminology and legislative practice of using linguistic expressions (terms) in their ordinary and generally accepted meaning. This is an expression of “social suffering” generated by legal institutions.

An example of a factor triggering this type of suffering had previously been mentioned in epistemic exploitation,^[34] which is a form of structural inequality. This phenomenon relates to the epistemic division of labour and may manifest particularly in the context of legal cases involving human rights issues, including the right to respect with regard to private and family life (Article 8 of the European Convention on Human Rights) in the context of the adoption procedure (cf. ECtHR 60083/19; Corso 2023, 109) and sexual violence (cf. Picinali 2024, 217), the right to fair trial (Article 6 of the European Convention on Human Rights) in the context of wrongful convictions and the violation of the presumption of innocence (cf. Bublitz 2023, 21), the prohibition of direct or indirect discrimination (based on gender identity, race, ethnic origin, nationality, religion, belief, worldview, disability, age, sexual orientation, or any other legally protected characteristic),^[35] strategic climate litigation (cf. Gutiérrez 2024, 208–226),^[36] international humanitarian law,^[37] as well as tort law (e.g. civil cases concerning non-pecuniary damages) and criminal law (such as legal responsibility of minors, sexual assault trials,^[38] property crimes, stalking, hate speech – defamation or insult of another person, including through mass media, based on national, ethnic, racial, religious affiliation, or lack thereof).

According to the Supreme Court (Pol. Sąd Najwyższy), every judge has his or her own individual set of criteria that they use to assess the credibility of testimony. It cannot be ruled out that the knowledge of the criteria used in practice is tacit and that while specific indications serve as the basis for judgments, they are not necessarily conscious. It is suggested that judges are likely not fully aware of the factors that significantly influence their assessment of the evidentiary value of testimony. The court bases this assessment, inter alia, on the direct impression made by the witness, his or her behaviour, and the manner of giving testimony. The judicial discretion in the evaluation of evidence cannot amount to arbitrariness in rejecting or deeming evidence credible. The court should demonstrate that the decision is based on rational grounds and that this assessment aligns with the directives contained in Article 7 of the Code of Criminal Procedure,^[39] meaning it was made with the consideration of the principles of sound reasoning, as well as the indications of knowledge and life experience (cf. decision of the Supreme Court (Sąd Najwyższy) of October 20, 2021 (II KK 467/21, publ. https://www.sn.pl/sites/orzecznictwo/Orzeczenia3/II%20KK%20467–21.pdf). The trial is an epistemic enterprise (Picinali 2024, 229). An important criterion for the legitimacy of the judicial decisions is the fair distribution of credibility in compliance with the principle of the benefit of the doubt and proper identification of the disconnect between public experience and legal knowledge (cf. Ralph 2024, 1371–1372; Ferreira 2022, 323).

In my opinion, rational grounds of judicial decision are rooted in a wider conception of objectivity of knowledge, which means that they must encompass some subject-dependent qualities of the world elicited by knowers that possess them. Law is a concrete, personalised system of rules where experiences of vulnerable knowers are salient and really matter. Courts should exercise particular vigilance and critical awareness of phenomenal forms of epistemic injustice and caution in evaluating vulnerable witness testimony. Judges should bring their own mind to the law, apply the analytical tool of hermeneutic therapy, performatively enact it into practice in cases where the lack of credibility may be linked to some form of discrimination and therefore to the stereotypes held by the hearer regarding gender, ethnicity, race, etc., and in this context, define the limits of judicial discretion in evaluating evidence as understood under, e.g., Article 233 of the Code of Civil Procedure (cf. Corso 2023, 108). It can also help support the verification of motivated reasoning (hinges) underlying the hearer’s attitude towards the knower in the context of the problem of the fallibility of eyewitness identification.

Representatives of ethnic minorities (e.g. Romani people) are often characterised by low legal awareness and do not use legal language in a manner satisfactory to the court (cf. judgment of the Regional Court in Nowy Sącz [Pol. Sąd Okręgowy w Nowym Sączu] of May 14, 2019 (III Ca 450/18, publ. https://orzeczenia.nowysacz.so.gov.pl/)).^[40] For the majority and local authorities, they are “others” who do not participate in local life because of cultural beliefs and credibility deficits due to their level of language and discursive competencies (inequality in deliberative capacities) (cf. Sorial 2022, 218–219). The theory of epistemic injustice can serve as a tool or axe for evaluating the standards of implementing the prohibition of discrimination based on membership in a minority group, as referred to in Article 6 of the Act of January 6, 2005 on National and Ethnic Minorities and on the Regional Language [Pol. Ustawa o mniejszościach narodowych i etnicznych oraz o języku regionalnym] (Journal of Laws of 2017, item 823). It emphasises that the hermeneutically-disadvantaged persons often see and hear what the dominant groups cannot (cf. Glaberson 2024, 454).

In the recognition of such cases, important considerations include the use of inclusive and plain language, juxtaposing legally-relevant facts with an individual threshold of sensitivity and the degree of experienced distress. From the perspective of the victim, providing evidence or giving testimony in cases related to anti-discrimination law, bullying, crimes against sexual freedom or morality, and crimes against family and care may be perceived as a form of epistemic exploitation, leading to secondary victimisation (the necessity to relive a specific trauma).^[41] However, from the perspective of judges, it represents the implementation of specific principles, duties, and procedural actions.^[42] In turn, legislators may consider applying the discussed theory when creating legal constructs (e.g. legal definitions) and legislative solutions in the aforementioned areas of law.^[43]

The theory of testimonial (in)justice emphasises strengthening the role of situational and contextual factors in evidence assessment and examining the potential contribution to shared interpretive resources by persons with epistemically-sensitive characteristics. Their experiences can significantly influence the evidentiary standard.^[44] For example, digital evidence provides a context for understanding why parties or participants in legal proceedings may perceive facts differently (Sullivan 2017, 296–297). It is crucial to enhance the awareness of professional and lay judges regarding the assumptions they bring to interpretation (Sullivan 2017, 295). Higher-instance courts, tasked with examining the fairness of proceedings, should verify the evidentiary reasoning of lower-instance courts, taking into account the experiences and variable knowledge of the sensitive social group to which the party or participant in the proceedings belongs (cf. Picinali 2024, 1–35).

The theory of epistemic (in)justice can be applied to reflect on the case of Ms. Joanna from Kraków (Poland), which is pending before the Regional Court in Kraków [Pol. Sąd Okręgowy w Krakowie] (VI Ko 55/24). Ms. Joanna is seeking 100,000 PLN in compensation for wrongful detention. On 28^th April, 2023, Ms. Joanna contacted a doctor (psychiatrist) after her health had deteriorated following the ingestion of an abortion pill. During her visit to the hospital, it turned out that the doctor had informed the police about the incident, thereby violating medical confidentiality. During the examination of the woman, four police officers violated Ms. Joanna’s personal dignity, forcing her to undress, perform squats, and cough. The police also confiscated her mobile phone and laptop. After the entire incident, the patient was escorted to another hospital, where another police patrol was waiting for her. The Polish law does not prohibit women from performing abortions on their own. Ms. Joanna was not suspected of committing a crime and there was not even a prospect of charging her. Therefore, the police had no legal basis for their intervention and repressive behaviour, which was confirmed by the District Court for Kraków-Krowodrza in Kraków [Pol. Sąd Rejonowy dla Krakowa-Krowodrzy w Krakowie] in the decision of June 12, 2023 (II Kp 589/23/K).^[45] The woman perceives the personal search as humiliating. Through such action by the police officers, Ms. Joanna was, de facto, punished for an act that, in the light of Article 152 of the Penal Code, cannot be attributed to her. Ms. Joanna argues that she had terminated her pregnancy almost two weeks before the police intervention. She did not report any side effects from taking the medication, she was not in any suicidal crisis, and only needed medical assistance, not intervention from police services.

This example should be treated not only as a contribution to the discussion about excesses in police interventions or the disproportionate use of competence as understood in human rights case law. From the perspective of the epistemic (in)justice theory, the police, in their search for evidence which they unjustifiably consider justified, essentially portray the affected woman as if she were actively involved in criminal assistance with abortion. These actions are compounded by media narratives that delve into the woman’s past and expose her intimate details. The hermeneutic therapy of law involves the reconfiguration of judicial deliberation in a particular case through a change in the “aspect of seeing” facts, mitigating circumstances, or issues. In such cases, judges and attorneys should analyse whether they are dealing with various forms of epistemic injustice phenomenon, as described in footnote 21.

In the new model of judicial governance reform as understood by Pablo Castillo-Ortiz, proposed by judicial associations, it is necessary to include the institution of a sensitive observer, i.e. a member of a disadvantaged community (e.g. the person whose social and personal knowledge is concerned), who adopts the wider concept of objectivity and could assist the judge or the legislator in reconstructing the standards of marginalised social normativity (e.g. climate adaptation policies). In this regard, a critical and careful selection of the sample is essential. Under these conditions, the importance of properly recognising the conditions of deliberation (e.g. the acknowledgement of the value of situated-knowledge, the nature of its subject, the scope of decision, differentiated and heterogenous characteristics of the audience, fundamental features of the creation and functioning of language) increases (cf. Ufel 2023, 300; Gutiérrez 2024, 223).

6.2. Case study – the prohibition of the discrimination of employees (the principle of equal treatment)

In accordance with current judicial decisions, workplace discrimination constitutes any case of unequal treatment that is not objectively justified, regardless of criteria such as gender, age, disability, race, religion, nationality, political beliefs, union membership, ethnic origin, faith, sexual orientation, employment on a fixed-term or indefinite basis, in full or part-time (cf. resolution of the Supreme Court [Pol. Sąd Najwyższy] of August 24, 2023 (III PZP 1/23, publ. http://www.sn.pl/). The prohibition of discrimination also applies to non-employment forms of work (cf. judgment of the European Court of Justice of January 12, 2023, J.K. v. TP S.A. (C-356/21, ECLI:EU:C:2023:9)). The catalogue of discrimination criteria (non-epistemic reasons for the weakening of the persuasive power of testimony from a weaker party) is open (cf. judgment of the Regional Court in Lublin [Pol. Sąd Okręgowy w Lublinie] of June 20, 2018 (VIII Pa 86/18, publ. https://orzeczenia.lublin.so.gov.pl/)). These criteria help determine whether there are grounds for applying the theory of epistemic (in)justice. The latter allows for a deeper understanding of discrimination, wrongful undermining an employee’s role as a knower, and mobbing behaviours.^[46]

In the collective interpretation base, there are concepts such as ableism, ageism, and misogyny, but no vocabulary has been developed to capture the problem of discrimination based on criteria beyond the above-mentioned relevant features. A hypothetical case is that of an employee in a specific department of an organisational unit of a public authority and treated less favourably than other employees due to affiliation with the scientific (academic) community – a significant feature in the form of an academic degree or title. Epistemic injustice can be discussed when the social context of the language game indicates that a given significant feature is a source of structural prejudice. In the projected case, epistemic injustice is a dimension of discrimination that may involve the continuous assignment of duties outside the division to which the employee has been assigned under the employment contract. As a result, there is a real deterioration in the conditions of employment for the weaker person, who effectively becomes an interdivisional employee. In the evaluation by the superior (e.g. possessing a Master’s degree in the same field as the employee), the objective reason justifying the constant and different from other employees of the parent division allocation of tasks from another division is the provision of the employment contract allowing the assignment of other tasks entrusted by the superior within the scope of the occupied position. Such general clauses are included in the employment contract or a document describing the individual duties of the employee to flexibly implement the employment relationship in the case of exceptional circumstances (e.g. longer absence of another employee) and should not be treated instrumentally.

From the perspective of the theory of epistemic (in)justice, the employer’s reliance on the argument that a different way of assigning tasks is justified due to the significant (socially-important) feature of the employee in the form of an academic degree or title raises doubts when the practice context adopted by the employer, and the testimonies of other employees show that this is not a condicio sine qua non for performing these other tasks. The employee’s objection to reprehensible practices may face repeated accusations of excessive inquisitiveness and emotional hypersensitivity as well as encounter gaslighting and moral harassment or mental mistreatment (abuse). The boss oppresses the employee by diminishing his or her self-confidence. Gaslighting and moral harassment often lead to mobbing. It causes unique moral and epistemic harms, because in a situation where it is not recognised it can act as a betrayal, undermining the speaker/victim’s “moral trust” in the person or institution (e.g. coordinators/representatives for equal treatment in central, provincial, or local offices) to which they turned with their account (cf. Glaberson 2024, 423).

Employment relationship is a legal language game that generates various interpretative misunderstandings, linguistic dilemmas, and forms of epistemic injustice. Interference with the agency of the knower (employee) by the stronger party (supervisor) to obtain epistemic benefits (results of conceptual work) without regard to the pro-employee judicial decisions, de jure hinges (the mechanism of deriving freedoms and rights of the employee from the dignity, the proportionality principle) may constitute discrimination against the weaker in law, and, consequently, cause testimonial injustice. However, employer prejudices are not necessarily related to discrimination and may be considered a separate category for examining epistemic injustice in labour law. Analytical and comparative subsuming of employee experiences under general judicial standards or computational algorithms based on the averaging (standardisation) of features and estimating the credibility of argumentation is an unreliable approach in terms of identifying epistemic errors. The examination of the ways of practical reasoning adopted by the parties to the employment relationship should be based on models of operative interpretation that take into account the factual circumstances accompanying the initiation of cooperation between the parties and the execution of the employment contract.

The above-described case does not constitute the factual circumstances of a specific court case, although it is based on real and authentic lived experiences. However, in the following case, the knower is denied the conceptual vocabulary to understand his or her own experience and may be harmed in his or her capacity as knower. Many labour law cases are not brought to court, because the law does not include the category of epistemic (in)justice as a separate ground for the employer’s legal liability. The “therapy” of law based on the hermeneutic model of deliberation serves to build bridges between law and imagination by revealing or dawning many new aspects for understanding phenomena such as workplace policies (e.g. Diversity, Equity, and Inclusion (DEI) programmes),^[47] mobbing, gaslighting, and professional burnout. It can also support research on the discrimination of vulnerable and/or marginalised knowers (e.g. neurodivergent intersex employee), and can be used as a criterion to assess whether the report of a knower (e.g. a vulnerable witness) is credible or unreliable. The processes of perspective-taking and collective reasoning may be biased, e.g. when a particular community or social group normalises the situation of those persons who lack the epistemic resources to name their experiences, perspectives, and feelings in their own words and are denied the possibility to develop these resources in the specified factual situation (cf. Muradova 2021, 659).

The epistemic (in)justice theory inspired by hermeneutic therapy enables the development of effective methods of acquiring knowledge from highly sensitive knowers and it is capable of situationally overcoming less or more deep-seated biases, the hermeneutic impoverishment, and overlapping systems of oppression in such a way that they do not constitute a concealed criterion for assessing the credibility of a knowing subject. This is a significant benefit of applying the theory of epistemic (in)justice from the point of view of the judicial interpretation and application of law. It may be expected that the legislation and interpretative performance of labour courts will tend towards including epistemic (in)justice as an integral element of the pro-employee model of the protection of human rights. The latter are performative acts that may begin to construct a new arrangement of meanings in social normativity. Ensuring the sustainability of legal decisions in such a way that they constitute a source of the transformation of social normativity involves formulating arguments from the perspective of the lived experiences of vulnerable knowers (e.g. plaintiffs) affected by the decision. In this way, legal policy coherence is achieved.

7. CONCLUSIONS

An epistemic injustice occurs when a hearer does not believe the words or experience of a knower because of multiple biases. Credibility is a comparative and contrastive quality (Medina 2011, 20). It is distributed inappropriately among deliberators due to prejudices and gaps in hermeneutical resources. In collective reasoning, some forms of epistemic injustice may go unrecognised and be normalised, regarded as legitimised. Hermeneutic therapy shows that the ways of knowing related to “aspects of seeing” (the evaluation of legislative and evidentiary facts) are inevitably linked to the challenge of abandoning the universalising elements present in the standard account of M. Fricker’s theory in favour of examining the reconfiguration or transformation of knower’s position, contribution, status, or standing in meaning-making and knowledge acquisition communicative practices. The novelty or genuine solution to the research problem I bring to the theory of epistemic (in)justice is the reconfiguration of its specific dogmatic (normative) assumptions from the perspective of “therapeutic” and “performative” deliberation based on a wider conception of objectivity and the exploration of directions, areas, and potential ways of its application in law, with particular attention to the specifics of the Polish law.

The theory of epistemic (in)justice is crucial for law, as it addresses the examination of uneven access to hermeneutic resources, enabling the articulation of nominal and interpretative knowledge that does not fit into normative legal categories. It can serve as a heuristic device (tool), which enriches legal means by providing a broader view of interpretative, situational, and contextual factors influencing various ways of perceiving the equality, reception, assessment, or interpretation of the same fact or event. A shortcoming affecting the theory in question is its dogmatic framework assuming the existence of metalinguistic games (universal reference points validating other games), and cognitive-affective sensibility is considered a subjective (private) epistemic virtue serving to neutralise hermeneutic resources (cf. Ufel 2023, 20, 24, 165, 268). Transitioning to a critical linguistic register, it can be said that institutions, through their apparent neutrality expressed in various legal language games (e.g. movement law, disaster law), paradoxically may generate and reinforce systemic hierarchies and inequalities (cf. Rosario-Lebrón 2023).^[48] In other words, institutions and their entrenched linguistic practices are an ideological tool that serves to (self)justify their existence and thus legitimises the causes of institutional crises resulting from the omission of the element of epistemic injustice in the processes of participation in the reconfiguration of social normativites.

In the light of the performative conception of law, philosophical therapy focuses on reflexively removing language difficulties in hermeneutic deliberation. It assumes that since language is social, the imaginative sensitivity of its users is an objective, non-neutral (situated but not partisan), and embodied habit of thought. This means moving away from establishing semantic criteria for using rules (conventions) of language to searching for a successful interpretation of these rules in the light of cultural norms and values as well as specific temporally lived experiences.^[49] This approach is based on a wide, weak (ensuring societal coherence), and qualified (considering marginalised knowledges) concept of objectivity (cf. Rodak 2011, 6, 10; Kjaer 2022, 777). In the light of the Latin maxim ex facto ius oritur, law (artifact) arises from a fact (knowing-in-practice) mediated by acts of legal imagination. The latter serves the functions of reproducing, projecting, and organising experiences or affective reactions related to the insufficient representation of devaluated knowledges in law by incorporating or combining meanings into new sense-making constellations (cf. Lobo 2022, 20). Imagination aids the analysis of the correlation between deficits and surpluses of the credibility of speakers associated with implicit biases of fact-finders. A nuanced view of epistemic dependence as an ambivalent phenomenon is possible. This dependence arises from the insufficient cognitive engagement of hearers (e.g. judges, jury, legislators) in the perspective of a disadvantaged person or community (e.g. a man experiencing domestic violence, a homeless person, a Black sexual worker, a martial rape victim, a male victim of rape, a female prisoner, a victim of violent crime inside prison, a genderqueer person, a member of the Rohingya ethnic group or the Windrush generation). The performative task of lawyers is to analyse the risk of epistemic harm at the individual and institutional levels, and raise awareness of tokenistic assumptions and generalisations that may cause or perpetuate the disadvantageous situation of knowers. The theory of epistemic (in)justice takes into consideration the fact-interpretation distinction to better understand “aspects of seeing” in the context of deliberative standards (e.g. democratic or experimental digital innovations such as legislative forums and mini-publics). Lawyers (e.g. during voir dire) and expert witnesses should reflect on the question of how some of the key narratives upon which legal standards of proof and their social understanding rest have been formed, unfolded, validated, or excluded, and consider their implicit acceptance of “taken-for-granted” kinds of rules of evidence (cf. Sullivan 2017, 301).

The goal of implementing the proposed concepts is to change the outcomes in specific cases. However, the issue of epistemic (in)justice should be approached holistically rather than casuistically and must be based not on wishful thinking, but on thick historicity and sociality (cf. Páez, Matida 2023, 32; Medina 2011, 17; Carter, López 2024, 54). On the systemic level, structures are needed that would allow the subaltern to speak for themselves and lawyers in power to listen to the knowledge of the hermeneutically-disadvantaged without objectification, representational bias, or tokenistic inclusions (cf. Glaberson 2024, 455–456; Gutiérrez 2024, 219); Carter, López 2024, 36). The specific reconfigurations of legal language games or social normativities occurring in the processes of knowledge production by critically analysing legal language can initiate certain processes of change in the perspectives (“aspects of seeing”) of hermeneutically-privileged participants in deliberations (cf. Ufel 2023, 320). Despite the short-term legitimacy of current power and the status quo, in the longer term, these changes can lead to lasting shifts in attitudes or the functioning of the existing and future institutions (cf. Ufel 2023, 320).

Many legal issues – such as procedural law (especially evidentiary procedures), anti-discrimination law, family law, criminal justice, forensic science, penology and penitentiary law (cf. Hanan 2020, 1185–1244), refugee law (cf. Ferreira 2022, 303–326), legal ethics (cf. Buralndo-Salazar 2023, 1282–1283), or the computational turn in law (cf. Hoven 2021) – are not commonly associated with the theory in question. It is advisable to further familiarise concepts within its scope and incorporate them into inferences or practical reasoning and socio-legal participatory research as well as the legal education process^[50] in a way that reflects balancing legal decisions and becomes part of reflexive legislative and judging arts.

^* Mariola Żak University of Warsaw, mariolazak@poczta.fm

© by the author, licensee University of Lodz – Lodz University Press, Lodz, Poland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution license CC-BY-NC-ND 4.0 (https://creativecommons.org/licenses/by-nc-nd/4.0/)
Received: 16.12.2023. Verified: 29.07.2024. Revised: 29.07.2024. Accepted: 27.10.2024.