In counterfactual cases of discrimination, an agent would have treated someone worse had circumstances been different such that instead of being a member of her actual group, she was a member of some other group. The case for considering such cases to be genuine cases of discrimination is bolstered by the fact that we are inclined to say that cases where an agent would have treated someone better had she been a member of another group are discriminatory. (...) But I argue that the cases are relevantly different: in one kind of case, but not the other, a person is harmed. I then consider and reject a number of objections to this suggestion. (shrink)

The aim of this paper is to identify what I take to be the main conceptual problem in Lewis’ semantics for counterfactuals when the Limit Assumption is not satisfied, what I call the Discrimination Problem , and to present and discuss a modification of Lewis’ semantics that aims at solving DP. First, I outline Lewis’ semantics, highlighting the aspects that will be relevant for our discussion. Second, I present DP and discuss it with a heuristic example. Third, I present (...) the new proposal and comment some formal consequences and the objections they give rise to. Fourth, I present an allegedly equivalent version of the proposal and discuss the difference between counterfactuals and strict conditionals. Finally, I defend that the two proposals are different and argue for the first one as the best way of capturing two intuitions that seem in conflict when the LA is not satisfied. I conclude with a dilemma: either the proposal here defended works or LA is inescapable. Thus, if the proposal doe.. (shrink)

The widespread use of algorithms for prediction-based decisions urges us to consider the question of what it means for a given act or practice to be discriminatory. Building upon work by Kusner and colleagues in the field of machine learning, we propose a counterfactual condition as a necessary requirement on discrimination. To demonstrate the philosophical relevance of the proposed condition, we consider two prominent accounts of discrimination in the recent literature, by Lippert-Rasmussen and Hellman respectively, that do (...) not logically imply our condition and show that they face important objections. Specifically, Lippert-Rasmussen’s definition proves to be over-inclusive, as it classifies some acts or practices as discriminatory when they are not, whereas Hellman’s account turns out to lack explanatory power precisely insofar as it does not countenance a counterfactual condition on discrimination. By defending the necessity of our counterfactual condition, we set the conceptual limits for justified claims about the occurrence of discriminatory acts or practices in society, with immediate applications to the ethics of algorithmic decision-making. (shrink)

Data-driven algorithms are currently deployed in several fields, leading to a rapid increase in the importance algorithms have in decision-making processes. Over the last years, several instances of discrimination by algorithms were observed. A new branch of research emerged to examine the concept of “algorithmic fairness.” No consensus currently exists on a single operationalization of fairness, although causal-based definitions are arguably more aligned with the human conception of fairness. The aim of this article is to investigate the degree of (...) this alignment in a case study inspired by a recent ruling of an Italian court on the reputational-ranking algorithm used by a food delivery platform. I relied on the documentation of the legal dispute to discuss the applicability, intuitiveness and appropriateness of causal models in evaluating fairness, with a specific focus on a causal-based fairness definition called “counterfactual fairness.” I first describe the details of the dispute and the arguments presented to the court, as well as the court’s final decision, to establish the context of the case study. Then, I translate the dispute into a formal simplified problem using a causal diagram, which represents the main aspects of the data generation process in the case study. I identify the criteria used by the court in ruling that the algorithm was unfair and compare them with the counterfactual fairness definition. The definition of counterfactual fairness was found to be well aligned with the human conception of fairness in this case study, using the court order rationale as a gold standard. (shrink)

Many legal, social, and medical theorists and practitioners, as well as lay people, seem to be concerned with the harmfulness of discriminative practices. However, the philosophical literature on the moral wrongness of discrimination, with a few exceptions, does not focus on harm. In this paper, I examine, and improve, a recent account of wrongful discrimination, which divides into a definition of group discrimination, and a characterisation of its moral wrong-making feature in terms of harm. The resulting account (...) analyses the wrongness of discrimination in terms of intrapersonal comparisons of the discriminatee’s actual, and relevantly counterfactual, well-being levels. I show that the account faces problems from counterfactuals, which can be traced back specifically to the orthodox - comparative, counterfactual, welfarist - concept of harm. I argue that non-counterfactual and non-comparative harm concepts face problems of their own, and don’t fit easily with our best understanding of discrimination; hence they are unsuitable to replace the orthodox concept here. I then propose a non-orthodox - comparative, counterfactual, hybrid - concept of harm, which relies on counterfactual comparisons of ways of being treated. I suggest how such a concept can help us handle the problems from counterfactuals, at least for my account of discrimination. I also show that there are similar proposals in other harm-related debates. An upshot of the paper is thus to corroborate the case for a non-orthodox, hybrid concept of harm, which seems better able to fulfil its functional roles in a variety of contexts. (shrink)

Discrimination law is a possible application of the methods of causal modelling. With it, it brings the possibility of direct statistical evidence on counterfactual questions, something that traditional techniques like multiple regression lack. The kinds of evidence that causal modelling can provide, in large part due to its attention to counterfactuals, is very close to the key question that we ask of jurors in discrimination cases. With this new kind of evidence comes new opportunities. We can better (...) proportion punitive damages to the severity of the discrimination that manifests in a hiring process. We can avoid making certain kinds of assumptions regarding the relationship between protected classes and hiring qualifications that other statistical methods demand from statisticians. We can also distribute restitution to individual claimants in a way that is proportionate to how their application was treated in the hiring process. Here we explore where and how causal modelling can be useful in discrimination law and policy. What elements of law provide friction with this mode of gathering statistical evidence, what new possibilities does it reveal, and how does this integrate with prior judgments regarding statistical evidence? (shrink)

Comment on Beeghly, Erin. 2021. “Stereotyping as Discrimination: Why Thoughts Can Be Discriminatory.” Social Epistemology 35 (6): 547–63. -/- Beeghly’s “Stereotyping as Discrimination” is—characteristically—clear, thorough, and persuasive, rich with incisive arguments and thought-provoking case studies. In defending the view that stereotyping often constitutes discrimination, she makes a powerful case that, “Living ethically means cultivating a certain kind of ‘inner’ life and avoiding pernicious habits of thought, no matter how culturally pervasive” (Beeghly 2021b, 13). Support for such claims (...) is traced back not just to Aristotle and the Ten Commandments (Beeghly 2021b, 10), but also to critical social traditions. “As feminists and theorists of race have long noted, the most intimate aspects of our selves, including our ways of thinking, agency, and modes of embodiment, are among the mechanisms of group oppression” (Beeghly 2021b, 13). I offer, first, a tiny friendly amendment to one brief passage, followed by invitations to explore some of the further potential implications of Beeghly’s central theses. (shrink)

Reducing prejudice is a critical research agenda, and never before has counterfactual priming been evaluated as a potential prejudice-reduction strategy. In the present experiment, participants were randomly assigned to imagine a pleasant interaction with a homosexual man and then think counterfactually about how an incident of sexual discrimination against him might not have occurred (experimental condition) or to imagine a nature scene (control condition). Results demonstrated a significant reduction in sexual prejudice from baseline levels in the counterfactual (...) simulation group. Importantly, whereas intergroup anxiety and motivation to control prejudice were not predictive factors, number of counterfactual thoughts generated independently predicted variance in prejudice reduction. Mechanisms for, and implications of, prejudice-reduction strategies including counterfactual thinking are discussed. (shrink)

Discussions of the causal status of race focus on the question of whether race itself can be experimentally manipulated. Yet many experiments testing for racial discrimination do not manipulate race, but rather a signal by which race influences an outcome. Such signal manipulations are easily formalized, though contexts of discrimination introduce significant philosophical complications. Whether a signal counts as a signal for race is not merely a causal question, but depends on sociological and normative issues regarding discrimination. (...) The notion of signal manipulation enables one to take these issues into account while still using causal counterfactual tests to detect discrimination. The analysis provided here is compatible with social constructivism and helps differentiate between cases in which it is more or less fruitful to model race causally. (shrink)

Advocates of the counterfactual approach to causal inference argue that race is not a cause, and this despite the fact that it is commonly treated as such by scientists in many disciplines. I object that their argument is unsound since two of its premises are false. I also sketch an argument to the effect that racial discrimination cannot be explained unless one assumes race to be a cause.

When is a cause of a cause of an effect also a cause of that effect? The right answer is either Sometimes or Always . In favour of Always , transitivity is considered by some to be necessary for distinguishing causes from redundant non-causal events. Moreover transitivity may be motivated by an interest in an unselective notion of causation, untroubled by principles of invidious discrimination. And causal relations appear to add up like transitive relations, so that the obtaining of (...) the overarching relation is not independent of the obtaining of the intermediaries. On the other hand, in favour of Sometimes , often we seem not to treat events that are very spatiotemporally remote from an effect as its causes, even when connected to the effect in question by a chain of counterfactual or chance-raising dependence. Moreover cases of double prevention provide counterexamples to causal transitivity even over short chains. According to the argument of this paper, causation is non-transitive. Transitizing causation provides no viable account of causal redundancy. An unselective approach to causation may motivate resisting the distance counterexamples to transitivity, but it does not help with double prevention, and even makes it more intractable. The strongest point in favour of transitivity is the adding up of causal relations, and this is the point that extant non-transitizing analyses have not adequately addressed. I propose a necessary condition on causation that explains the adding up phenomenon. In doing so it also provides a unifying explanation of distance and double prevention counterexamples to transitivity. (shrink)

Wason's standard 2-4-6 task requires discovery of a single rule and leads to around 20% solutions, whereas the dual goal (DG) version requires discovery of two rules and elevates solutions to over 60%. We report an experiment that aimed to discriminate between competing accounts of DG facilitation by manipulating the degree of complementarity between the to-be-discovered rules. Results indicated that perfect rule complementarity is not essential for task success, thereby undermining a key tenet of the goal complementarity account of DG (...) facilitation. The triple heterogeneity account received a good degree of support since more varied triple exploration was associated with facilitatory DG conditions, in line with this account's prediction that task success is associated with the creative search of the problem space. The contrast class account (an extension of Oaksford & Chater's, 1994, iterative counterfactual model) was also corroborated in that the generation of descending triples was demonstrated to be the dominant predictor of DG success. We focus our discussion on conceptual ideas relating to the way in which iterative counterfactual testing and contrast class identification may work together to provide a powerful basis for effective hypothesis testing. (shrink)

I argue, pace Timothy Williamson, that one cannot provide an adequate account of what it is for a case to be borderline by appealing to facts about our inability to discriminate our actual situation from nearby counterfactual situations in which our language use differs in subtle ways. I consider the two most natural ways of using such resources to provide an account of what it is for a case to be borderline and argue that both face crippling defects. I (...) argue that the problems faced by these two accounts point to more general reasons to be skeptical of the claim that facts about semantic indiscriminability provide sufficient resources for an analysis of what it is for a case to be borderline. (shrink)

Relatively little is known about those who consistently produce the valid response to Modus Tollens (MT) problems. In two studies, people who responded correctly to MT problems indicated how “convinced” they were by proofs of conditional reasoning conclusions. The first experiment showed that MT competent reasoners found accurate proofs of MT reasoning more convincing than similar “proofs” of invalid reasoning. Similarly, there was a tendency for MT competent reasoners to find an initial counterfactual supposition more convincing than did people (...) who were less competent in MT. The second experiment showed that when individuals produced the correct MT response, and found correct MT proofs to be more convincing than “bogus” proofs, they were also less likely to find the conclusions to Denying the Antecedent, or Affirming the Consequent problems valid, compared to individuals who could not discriminate between valid and bogus MT proofs. These findings are discussed in terms of both their implications for the mental logic and mental models positions, and individual differences in System 1 and System 2 reasoning. (shrink)

Several different approaches to the conceptual analysis of causation are guided by the idea that a cause is something that makes a difference to its effects. These approaches seek to elucidate the concept of causation by explicating the concept of a difference-maker in terms of better-understood concepts. There is no better example of such an approach than David Lewis’ analysis of causation, in which he seeks to explain the concept of a difference-maker in counterfactual terms. Lewis introduced his (...) class='Hi'>counterfactual theory of causation with these words: 'We think of a cause as something that makes a difference, and the difference it makes must be a difference from what would have happened without it. Had it been absent, its effects—some of them, at least, and usually all—would have been absent as well.' (Lewis 1973b: pp. 160-1) According to Lewis, a cause c makes a difference to an effect e in the sense that if the cause c had not occurred, the effect e would not have occurred either. All we shall see in section 2, Lewis’ theory says there is more to the concept of causation than this counterfactual condition. Lewis is on the right track, I think, in saying that we think of a cause as something that makes a difference and that this thought is best explicated in terms of counterfactual concepts. However, I shall argue that the particular way in which Lewis spells out the concept of a cause as difference-maker is unsatisfactory. For Lewis’ articulation of this concept is distorted by a specific metaphysical assumption: specifically, that causation is an absolute relation, specifiable independently of any contextual factors. The distortion induced by this assumption is reflected in the undiscriminating manner in which his theory generates countless causes for any given effect. However, commonsense judgement is much more discriminating about causes than Lewis’ theory. Accordingly, I claim that Lewis' analysis faces the problem of profligate causes and I outline some specific problem cases in section 3.. (shrink)

Belief revision theories standardly endorse a principle of intensionality to the effect that ideal doxastic agents do not discriminate between pieces of information that are equivalent within classical logic. I argue that this principle should be rejected. Its failure, on my view, does not require failures of logical omniscience on the part of the agent, but results from a view of the update as _mighty_: as encoding what the agent learns might be the case, as well as what must be. (...) The view is motivated by consideration of a puzzle case, obtained by transposing into the context of belief revision a kind of scenario that Kit Fine has used to argue against intensionalism about counterfactuals. Employing the framework of truthmaker semantics, I go on to develop a novel account of belief revision, based on a conception of the update as mighty, which validates natural hyperintensional counterparts of the usual AGM postulates. (shrink)

The Fairness, Accountability, and Transparency (FAccT) literature tends to focus on bias as a problem that requires ex post solutions (e.g. fairness metrics), rather than addressing the underlying social and technical conditions that (re)produce it. In this article, we propose a complementary strategy that uses genealogy as a constructive, epistemic critique to explain algorithmic bias in terms of the conditions that enable it. We focus on XAI feature attributions (Shapley values) and counterfactual approaches as potential tools to gauge these (...) conditions and offer two main contributions. One is constructive: we develop a theoretical framework to classify these approaches according to their relevance for bias as evidence of social disparities. We draw on Pearl’s ladder of causation (Causality: models, reasoning, and inference. Cambridge University Press, Cambridge, 2000, Causality, 2nd edn. Cambridge University Press, Cambridge, 2009. doi:10.1017/CBO9780511803161) to order these XAI approaches concerning their ability to answer fairness-relevant questions and identify fairness-relevant solutions. The other contribution is critical: we evaluate these approaches in terms of their assumptions about the role of protected characteristics in discriminatory outcomes. We achieve this by building on Kohler-Hausmann’s (Northwest Univ Law Rev 113(5):1163–1227, 2019) constructivist theory of discrimination. We derive three recommendations for XAI practitioners to develop and AI policymakers to regulate tools that address algorithmic bias in its conditions and hence mitigate its future occurrence. (shrink)

Chapter 1: An Introduction: The ‘Semantic Sting’ Argument Describes Dworkin’s theory as concerning the conditions of legal validity. “A legal system is a system of norms. Validity is a logical property of norms in a way akin to that in which truth is a logical property of propositions. A statement about the law is true if and only if the norm it purports to describe is a valid legal norm…It follows that there must be certain conditions which render certain norms, (...) but not others, legally valid. Hence it also follows that there can be two types of disagreement over the truth or falsehood of propositions about the law. People can disagree over the question ‘What are the conditions of legal validity?’, in which case their disagreement is a theoretical one. Or they can agree on the conditions of validity, and disagree as to whether or not those conditions actually obtain in a given case or not.” Argues that the best way to interpret Dworkin’s ‘semantic-sting argument’ is as a general argument against conventionalism in legal positivism. Summarizes the outcome of Dworkin’s argument as follows: “[I]f Dworkin is right about the legal reasoning of lawyers and judges, conventionalism would be self-defeating: if lawyers and judges recognize as legally binding not only those norms which are uncontroversially identifiable under the Rule of Recognition, that is, if what they recognize as binding is not only source-based law, then conventionalism turns out to be false on its own terms. In other words, either law is not what lawyers and judges think that it is, in which case law is not a matter of conventions, or – if it is what lawyers and judges think – conventionalism is false, as they do not see the law as purely a matter of conventions.” Dworkin’s theory, then, is a new conception of jurisprudence aiming to present itself as a rival to conventionalism. The book will be concerned with re-examining positivism in light of the interpretative challenge. Chapter 2: Meaning and Interpretation “[R]oughly, interpretation can be defined as an understanding or explanation of the meaning of an object.” Interpretation in this narrow sense is distinct from a less formal and broader use of interpretation that makes it equivalent to explanation. “Hence also, only those objects which are capable of bearing some meaning qualify as objects of interpretation.” [Why shouldn’t we think of interpretation as object-identification? This seems to be closer to what Dworkin has in mind.] Thus, a consideration of the philosophical work on meaning is appropriate. First, a consideration of Davidson on interpretation. The thesis is that Davidson’s “radical interpretation” can only account for sentence meaning and not for linguistic interpretation in general. Davidson cannot account for the non-rule-governed aspects of communication. “Semantics, as opposed to interpretation, concerns those aspects of communication which are rule or convention governed…but such rules are normally unavailable as reasons or justifications for an interpretation. On the contrary, interpretation is usually required because the issue is not determined by rules or conventions.” Interpretation, rather, is parasitic with understanding the meaning of an expression and not equivalent with it. As Dummett notes, any reflection on the meanings of words assumes prior knowledge of ordinary meanings. “This leads to the conclusion that understanding or explaining the meaning of an expression and interpreting it, are two conceptually separate things. It also indicates that seman ics can only be employed, if at all, to elucidate the concept of interpretation by way of contrast: interpretation concerns those aspects of communication which are under-determined by semantic rules or conventions.” Pragmatics, the study of problems posed by discrepancies between utterer’s meaning and sentence meaning, would seem to be closer to inquiry into interpretation. Both are concerned with understanding how meaning is possible where conventional rules leave off. Contemporary pragmatics, moreover, recognizes the logically indeterminate character of communicative inferences beyond conventional meaning and that the contextual conditions that account for the possibility cannot be realized in the semantic structure of the sentence. However, different criteria of success may be at work in pragmatics than interpretation. Pragmatics is concerned with how communication is achieved and thus the criteria of success would be grasping a speaker’s intentions. Many think, however, that communication is unimportant in certain spheres of communication, e.g. artistic interpretation, and that in these cases the aim of interpretation is not to uncover the actual artist’s intentions. What kind of meaning is interpretation aimed at then? It cannot be the meaning the object has for the interpreter. “Interpretation purports to be a statement about the object interpreted, not about the subject who offers the interpretation…it is crucial to remember that not everything we say about a work of art, or any other text, amounts to an interpretation of it. Only those aspects of a text which can shed light on its meaning form part of the text’s interpretation. What the text means for someone rarely entails anything about what the text means.” [This is puzzling to some extent for it remains somewhat ambiguous what it means to talk of subject-independent meaning.] Interpretive meaning attribution is, rather, counterfactual. “In general, I will suggest that the answer to this question consists in the fact that meaning is assigned by a counterfactual statement. Given that x is the meaning attributed to, for instance a text T, and x is not the literal meaning of T, nor is it the meaning of T intended by its author, then the attribution of meaning x to T can only be understood as the contention that on the basis of certain assumptions a certain fictitious or stipulated speaker would have meant x by expressing T.” Thus, on this account, interpretation, when it does not concern an actual speaker, turns out to be a kind of counterfactual intention attribution. Twofold point: “First, that interpretation is essentially a matter of attributing intentions, that is, in the pragmatics sense of ‘meaning’, namely, meaning that such-and-such by an act or expression. At the same time, interpretations need not be based on the intentions of actual authors; the meaning of an act or expression is understandable in terms of counterfactual intentions.” [Are we really restricted to understanding the coherence and integrity of meaning in such a way? Presumably the author is a kind of device for organizing meaning, much like Dworkin’s integrity, but need it take that format?] The logic of interpretation is typically reducible to intention attribution. [What role does the counterfactual author play in structuring meaning?] The criteria of interpretive success will depend upon the object, whether it is the real author or the counterfactual author. If the former, success will depend upon the retrieval of the author’s actual intentions. “Likewise, if the author is characterized in terms of some ideal representative of a certain genre, for instance, the presumptions which are taken to determine this c aracterization would provide the criteria of success for the particular interpretation offered.” [The criteria of success would seem, then, to be the principles, ideals, etc. that we attribute to the counterfactual author. These attributed qualities would be doing all the work – is the attribution of intention to the hypothetical author, then, really necessary at all?] [Does this account presuppose a weird dichotomy between what an object is and what it means? This dichotomy is different, if present at all, in Dworkin.] Chapter 3: Dworkin’s Theory of Interpretation and the Nature of Jurisprudence Three main insights of Dworkin’s theory of interpretation: “First, that interpretation strives to present its object in its best possible light. Second, that interpretation is essentially genre-dependent. And third, that there are certain constraints that determine the limits of possible interpretations of a given object.” Why the best light? Dworkin doesn’t really address this question in depth but claims that otherwise we are left with no way of justifying and choosing an interpretation or we are left with the author’s intention model, which we should reject. [Marmor doesn’t seem clear on what precisely it means to present something in its best light – seems to conflate it with most appealing light which, I take it, is different than what Dworkin has in mind.] “Dworkin is quite right to maintain that without having some views about the values inherent in the genre to which the text is taken to belong, no interpretation can take off the ground. The values we associate with the genre partly, but crucially, determine what would make sense to say about the text, what are the kinds of meaning we could ascribe to it.” There is no necessity for an interpretation to present an object in its best light with regards to the genre it is taken to be part of. Interpretations “could simply strive to present it in a certain light, perhaps better than some, worse than others, but in a way which highlights an aspect of the meaning of the text which may be worth paying attention to for some reason or another.” [What kind of reasons would count in choosing to present it in one light rather than another?] There is simply zero grounds for Dworkin’s assertion that we have no reason to pay attention to an interpretation that does not present it in its best light. Take a psychoanalytic interpretation of Hamlet, for example – not the best light, but a legitimate one. [This seems related to the next criticism – clearly Dworkin would have to loosen his insistence on the best, though not to detriment.] Moreover, especially with regards to art, it doesn’t appear possible to make an all things considered judgment about the best interpretation given the incommensurability of different values that are taken to inhere in a given genre. [Dworkin can respond here that we may have different available interpretations that could be justified with respect to the relevant value. Moreover, a lack of common denominator does not prevent any comparison whatsoever.] Constructive interpretation concerns social practices constituted by norms – it imposes a purpose or value rendering intelligible the normative character of the practice. There is a separate aspect of constructive interpretation that maintains that elements of the practice are sensitive to the point of the practice. It is important to note that different social practices will institutionalize themselves in different ways – thus, different practices will establish varying conditions on how the practice can be altered. The position of the positivists is that evaluative judgments concerning what the law should be are insufficient for determining what the law is given the nature of law’s institutionalization.&nb p; [This would seem to reside on a certain conception of law, i.e. an interpretation about where the value of law lies.] “[T]his being one of the main points of dispute between Dworkin and his positivist opponents, Dworkin cannot at this initial state presume law to be sensitive to its value in the manner that other, non-institutional practices might be, without incurring the charge of having assumed the very point at issue.” The upshot for Dworkin is that any explanation of a social practice such as law requires the same kind of reasoning as participation in that practice. This will be called the hermeneutic thesis. We can try to reconstruct a justification for this view based on the necessity of shared background assumptions – but this will not do since Dworkin’s claim is stronger: it contends that participants’ and theorists’ must “adopt one and the same normative point of view.” [The sense of normative here is unclear. It is true, though, that shared background assumptions do not imply viewing the law as valuable in any particular way, or at least it does not imply this in any strong sense.] Dworkin makes two distinct points with the hermeneutic thesis: “First, that the explanation of a social practice, like law or the arts, is essentially interpretative, and as such, necessarily value laden. Second, that the interpretation of such social practices, which Dworkin calls ‘argumentative’, is unique in the sense that the practice itself is an evaluative enterprise, and that therefore the interpreter of such a practice must form an evaluative judgment of her own about those values which are inherent in the practice that she purports to interpret.” [As stated, the first thesis is terribly ambiguous – for Dworkin, it clear implies a commitment to constructive interpretation. For Marmor, who accepts it, it is totally unclear what commitment he intends to make. He seems to mean simply that we have criteria for success concerning what counts as a successful explanation.] Mamor denies the second thesis. “What Dworkin seems to ignore here is that there is a crucial difference between forming a view about the values which are manifest in a social practice, like law, and actually having evaluative judgments about them.” [The problem, however, it that it is a contentious matter what values are part of the law – a theorist’s account of what values are constitutive of a particular legal system must rely on the kind of arguments which participants rely on. Of course, a theorist might simply note a debate about values and attempt to remain agnostic, but this will fail to be a full theoretical account of what law is!] Dworkin’s thesis seems to depend exclusively on his account of constructive interpretation. [This seems exactly right.] Chapter 4: Coherence, Holism, and Interpretation: The Epistemic Foundation of Dworkin’s Legal Theory Begins with discussion of Rawls’ reflective equilibrium. Sums up dual criticism as follows: “[T]he assumption that intuitions are independently true and the converse one, that their truth depends on fitting a coherent scheme, both seem to yield paradoxical results.” Dworkin, in his article “The Original Position”, claims that Rawls cannot commit himself to ethical realism. “[T]he natural model presupposes some form of ethical realism, while the constructive model does not. One important difficulty arising from an attempt to apply the natural model to Rawls is, that under the natural model, any theory which dopes not account for an intuition, at least for one which is held firmly, cannot be wholly satisfactory, just as scientific theory which does not account for certain observational data it is supposed to cover, would not be satisfactory in a familiar way.” Rawls, rather, is committed to a constructivist view of morality. Moreover, the reason we value coherence epistemically in moral theory is that it itself is a value of political morality – fairness requires consistency and publicity in the application of moral standards. Marmor notes the following problem with such a view: “[I]f coherence is justified, as it is here, with reference to certain moral values, that is, a specific conception of fairness, then we face the following problem: the presupposed values of fairness must themselves be based upon intuitive convictions, in which case the question of their truth cannot be ignored. If they are taken to be true…we are driven back to the perplexities of the natural model.” Discusses, helpfully, the Fish/Dworkin debate. The upshot is that Dworkin’s interpretive model is best off if it commits itself to a Quineian holism. However, this undermines his distinction between internal and external skepticism since holism must deny that moral judgments constitute a closed system. [This analysis seems exactly right.] Endorses Simmonds view that Dworkin’s theory does not meet the requirements of complexity he identifies as necessary to avoid vicious circularity in interpretive judgments of fit and identity. Coherence is doing the work through and through and therefore the interpretive theory of law is circular. [Will require further investigation, though it is unclear how coherence is doing any work in the pre-interpretive stage. At this stage, the judgments, if interpretive, seem to be derived from different sources. In any case, using coherence as a value seems to be highly suspect.] Why doesn’t Dworkin just reject Fish’s assumptions: because of his jurisprudence. “If legal texts can have a meaning that is not entirely dependent on a process of interpretation, then it is at least sometimes the case that the law can simply be understood, and applied, without the mediation of interpretation. And if that is the case, then the argument from interpretation against legal positivism collapses. It is no longer the case that every conclusion about what the law is, depends on evaluative considerations about what it ought to be.” Chapter 5: Semantics, Realism, and Natural Law Assessment of Michael Moore’s legal realism and its implications. [The final criticisms of Moore are not decisive.] Chapter 6: Constructive Identification and Razian Authority A consideration of Dworkin’s denial that the communication model of interpretation is appropriate for legal interpretation. Marmor argues that intentions do play a crucial role in the identification of legal norms in a way that is incompatible with Dworkin’s “coherence thesis”. Marmor takes Dworkin to be committed to the constructive identification thesis: that the identification of something as part of the legal, artistic, etc. genre can be done sufficiently by evaluative considerations. “Here, one must maintain that evaluative considerations are sufficient to determine whether something is a legal norm or a work of art”. [Fit, however, constrains possible evaluative considerations – thus evaluative considerations are not sufficient in themselves.] “Now the crucial point here is this: if you maintain the possibility of constructive identification in art, you must assume that works of art can be identified as such on the basis of certain features they happen to possess, features which contain no reference to any particular intention to create a work of art…unless we take intentions into account, how can we discriminate between the concept of an aesthetic artifact and the con ept of a work of art?” [It is unclear, and I think false, that constructive interpretation of anything requires identifying something irrespective of an artificers intentions. Those intentions may be relevant, dependent upon the genre under which we are trying to classify the object. Nothing, seemingly, about constructive interpretation in general excludes this possibility.] Marmor’s point is that it turns out to be impossible to identify art as art without reference to an artist’s intentions – especially given the state of contemporary art. [It is notable that Marmor’s response to counterexample implicitly depends upon a fully developed theory of aesthetics. His cursory comments on the matter of identifying art seem insufficient to say the least.] The rest of the chapter considers the incompatibility of Raz’s account of authority with constructive interpretation. The incompatibilities mentioned do not move beyond what Raz identifies in his article “Authority, Law and Morality”, but a defense of this notion of authority is defended in several [inconclusive] respects. [Raz and Marmor want to separate identification from content. This is not clearly a defensible separation.] Chapter 7: No Easy Cases? Chapter defends notion that there is a distinction between easy and hard cases in the positivist sense. Takes a Hartian approach and ultimately defends the distinction by associating it Wittgenstein’s conception of rule following. The point is that one need to look the purpose of rule in order to understand what the rule requires. Chapter 8: Legislative Intent and the Authority of Law Examines the following doctrine concerning the role of legislative intent in adjudication: “[F]irst, it would hold that laws, at least in certain cases, are enacted with relatively specific intentions, and that this is a matter of fact which is discernible through an ordinary fact-finding procedure. Second, that in certain cases the presence of such a fact, namely, that the law was enacted with a certain intention, provides judges with a reason to decide the legal dispute in accordance with the relevant legislative intent.” [It is important that for Marmor, interpretive strategies are only appropriate in hard cases. However, we should wonder what grounds positivism can offer for deciding a hard case in any manner which is not the morally best manner according to the judgment of the judge. There are no legal grounds, by definition, in hard cases and so what justificatory strategy would endorse any judicial decision except for the morally best one?] We can ascribe intentions to a legislative body, when this is possible at all, by taking the shared intentions of the majority, rather than some group intention, to be the significant intentions. Moreover, we should expect a good deal of consensus about intentions for otherwise it is hard to explain how legislative bodies are able to produce so much legislation. Discussion of kinds of intentions concludes as follows: “I have distinguished between three main types of intention that are potentially relevant from the legal point of view. Apart from the intentions that are manifest in the language of the law itself, legislators typically have further intentions in enacting a given law, and sometimes they would have certain intentions bearing on its proper application. I have also suggested that some of these further intentions may be essentially non-avowable, in which case they are rendered initially irrelevant. Finally, I have pointed out that considerations of consistency require that the legislator’s application intentions be taken into account only if, and to the extent that, they are in accord with his further intentions.” The manner in which intentionalism is to be justif ed relies on the distinction, Marmor maintains, between expert and mere collective action authority. “The point I wanted to make is strictly conditional: if, and only if, a certain law is justified on the basis of the expertise branch of the normal justification thesis, would it make sense to defer to the legislature’s intentions in the interpretation of the law, that is, to the extent that there is, in fact,; such an intention and it can clarify something that needs clarification.” Insofar as a legislature can be considered an expert on the matter requiring adjudication and interpretation should the body’s intention be taken into account. Chapter 9: Constitutional Interpretation Begins by laying out general necessary features of a constitution. Then Marmor moves on to consider general questions of constitutional legitimacy. First, he considers what grounds might be offered for the legitimacy of a constitution at all. He notes that the central question is what permits a single generation to bind future generations. He then examines four arguments to avoid this problem. The first is based on the moral legitimacy of the constitution; Marmor rejects this solution for the [truly dubious] reason that the constitution would make no practical difference because it would not supply reasons in addition to those provided by morality [but, presumably, the point is that these legally valid rules would be institutionally enshrined]. The second is based on the moral authority of the framers and Marmor rightly rejects this on the basis of the idealization of the framers it requires and less rightly on the basis that there cannot be moral authorities. Third is the “argument from interpretation” which claims that “as long as the particular content of the constitution is determined by its interpretation, and the authoritative interpretation at any time correctly instantiates the values which ought to be upheld in the community, the constitution would be morally legitimate”. The fourth is Raz’s which argues that a constitution is valid so long as its constraints are morally permissible because conventions of this type might aid the continuity of the legal system, i.e. it is important to have a convention of this type and the constitution is a kind of this type. Marmor appears to endorse these two approaches and concludes: “The conditions for the legitimacy of a constitution must comprise the following conditions. First, the values and principles enshrined in it must be morally permissible…Second, when certain choices are made in particular cases, they would be legitimate if they are either morally underdetermined, or else, morally correct…It follows from this that both arguments must assume that at least in those areas in which the constitution would make a moral difference, it can be interpreted to make the difference that it should, that is, according to the true moral principles that should apply to the particular case...the moral legitimacy of constitutions very much dependent on the practices of their interpretation. In other words, a great deal of the burden of moral legitimacy is shifted by these arguments to the application of the constitution, thus assuming that the constitution is legitimate only if the courts are likely to apply the constitution in a morally desirable way.” [This implies that the only significant value constitutions have is in providing a conventional practice where some such practice is required.] Moves on to argue that courts typically rely, and rightly so, on moral considerations when deciding constitutional issues because typically, in cases of the kind that reach the supreme or constitutional court, there is no law on the case. Much of this relies on his earlier discussion about the nature of interpretation in the law – that legal interpretation is always a matter of cha ging the law. (shrink)

This thesis aims to clarify a number of conceptual aspects of the debate surrounding algorithmic fairness. The particular focus here is the role of causal modeling in defining criteria of algorithmic fairness. In Chapter 1, I argue that in the discussion of algorithmic fairness, two fundamentally distinct notions of fairness have been conflated. Subsequently, I propose that what is usually taken to be the problem of algorithmic fairness should be divided into two subproblems, the problem of predictive fairness, and the (...) problem of allocative fairness. At the core of Chapter 2 is the proof of a theorem that establishes that three of the most popular (predictive) fairness criteria are pairwise incompatible. In particular, I show that under certain conditions, a predictive algorithm that satisfies a criterion called counterfactual fairness will with logical necessity violate two other popular predictive fairness criteria called equalized odds and predictive parity. In Chapter 3, a new predictive fairness criterion is developed using a mathematical framework for causal modeling. This fairness criterion, which I call causal relevance fairness, is a relaxation of another popular fairness criterion, counterfactual fairness, but turns out to be more closely in line with philosophical theories of discrimination. In Chapter 4, another infamous impossibility result in algorithmic fairness is analyzed through the lens of causality. I argue that by using a causal inference method called matching, we can modify the two fairness criteria equalized odds and predictive parity in a way that resolves the impossibility. Lastly, Chapter 5 contains an empirical case study. In it, the fairness of a popular recidivism risk prediction tool is analyzed using the criteria of (predictive) fairness developed earlier. (shrink)

A theory of intentionality is outlined, in which the desideratum that the intentional be the same as the real object is argued for in terms of an anti-realist ontology. According to such an ontology, an ordinary object is in itself an object of discourse taken as intentional when posited phenomenologically and as possible when posited naturalistically, i.e. as not existing in some possible worlds but as existing in others. If the actual world is included among the latter, the object deserves (...) to be called "rear". Qua possible object, it answers to a principle of individuation which also works as a criterion of discrimination. According to such a principle, any possible object has a counterfactual individualising property which takes substance plus origin in a given spacetime as the object's essential properties, where it exists. It is, moreover, an object of discourse insofar as it generically depends, for its own being, on a singular term being publicly used to refer to it. (shrink)

The objective of this paper is to examine how artificial intelligence systems (AI) can reproduce phenomena of social discrimination and to develop an ethical strategy for preventing such occurrences. A substantial body of scholarship has demonstrated how AI has the potential to erode the rights of women and LGBT+ individuals, as it is capable of amplifying forms of discrimination that are already pervasive in society. This paper examines the principal approaches that have been put forth to contrast the (...) emergence of biases in AI systems, namely causal, counterfactual reasoning, and constructivist methodology. This analysis demonstrates the necessity of considering the sociopolitical context in which AI systems are developed when evaluating their ethical implications. To investigate this conjunction, we apply the theory of gender performativity as theorized by Judith Butler and Karen Barad. This illustrates how AI functions within the social fabric, manifesting patriarchal configurations of gender through an analysis of the notorious case of the COMPAS system for predictive justice. In conclusion, we demonstrate how reframing of gender performativity theory, when applied to AI ethics, permits us to consider the social context within which these technologies will operate. This approach enables an expansion of the interpretation of the concept of fairness, thereby reflecting the complex dynamics of gender production. In the context of AI ethics, the concept of "fairness" pertains to the capacity of an algorithm to generate results dealing with sensitive categories, such as gender, ethnicity, religion, sexual orientation, and disability, in a manner that does not engender forms of discrimination and prejudice. The gender dimension needs to be reconsidered not as an individual feature but as a performative process. Moreover, it enables the identification of pivotal issues that must be addressed during the development, testing, and evaluation phases of AI systems. (shrink)

In the consolidated cases Altitude Express v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, the Supreme Court will decide whether or not Title VII prohibits discrimination on the basis of sexual orientation or gender identity. Although the parties disagree as to the appropriate formulation of a but-for test to determine whether or not there was a discriminatory outcome, all parties do agree to the use of such a test, which asks “whether the (...) evidence shows ‘treatment of a person in a manner which but for that person’s sex would be different.’” City of Los Angeles, Dep’t. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978). However, but-for tests confuse more than they clarify the inquiry; a discriminatory outcome cannot be explained by appeal to just a discrete characteristic of a particular person. Individuals are not discriminated against because of these characteristics per se. Rather, they are discriminated against because of the social meanings and expectations that attach to these characteristics. Beyoncé and Taylor Swift illustrate the difference between individual-level causation and social explanation in two separate songs, “If I Were a Boy” and “The Man.” The explanation for why the counterfactual ‘male’ Beyoncé and Swift are evaluated differently than their current ‘female’ versions does not lie in individual-level features considered apart from the social world, but in social-level roles and expectations associated with those features. For this reason, a social explanation test—one that asks whether the social meanings of sex characteristics, rather than the characteristics per se, explain the outcome in question—is more suitable for determining whether or not Title VII has been violated. (shrink)

Researchers often lack the necessary data to credibly estimate racial discrimination in policing. In particular, police administrative records lack information on civilians police observe but do not investigate. In this article, we show that if police racially discriminate when choosing whom to investigate, analyses using administrative records to estimate racial discrimination in police behavior are statistically biased, and many quantities of interest are unidentified—even among investigated individuals—absent strong and untestable assumptions. Using principal stratification in a causal mediation framework, (...) we derive the exact form of the statistical bias that results from traditional estimation. We develop a bias-correction procedure and nonparametric sharp bounds for race effects, replicate published findings, and show the traditional estimator can severely underestimate levels of racially biased policing or mask discrimination entirely. We conclude by outlining a general and feasible design for future studies that is robust to this inferential snare. (shrink)

Despite their importance in the history of philosophy and in particular in the work of Aristotle and Kant, mental capacities have been neglected in recent philosophical work. By contrast, the notion of a capacity is deeply entrenched in psychology and the brain sciences. Driven by the idea that a cognitive system has the capacity it does in virtue of its internal components and their organization, it is standard to appeal to capacities in cognitive psychology. The main benefit of invoking capacities (...) in an account of the mind is that it allows for an elegant counterfactual analysis of mental states: it allows us to analyze mental states on three distinct yet interrelated levels. A first level of analysis pertains to the function of mental capacities. A second level of analysis pertains to the mental capacities employed, irrespective of the context in which they are employed. A third level of analysis pertains to the mental capacities employed, taking into account the context in which they are employed. This paper develops an account of perceptual capacities. This account involves an analysis of their function, their individuation and possession conditions, the relation between perceptual capacities and their employment, as well as their informational and neural base conditions. (shrink)

This paper presents a partial analysis of perceptual knowledge, an analysis that will, I hope, lay a foundation for a general theory of knowing. Like an earlier theory I proposed, the envisaged theory would seek to explicate the concept of knowledge by reference to the causal processes that produce (or sustain) belief. Unlike the earlier theory, however, it would abandon the requirement that a knower's belief that p be causally connected with the fact, or state of affairs, that p.

Deliberation about what to do in any context requires reasoning about what will or would happen in various alternative situations, including situations that the agent knows will never in fact be realized. In contexts that involve two or more agents who have to take account of each others' deliberation, the counterfactual reasoning may become quite complex. When I deliberate, I have to consider not only what the causal effects would be of alternative choices that I might make, but also (...) what other agents might believe about the potential effects of my choices, and how their alternative possible actions might affect my beliefs. Counterfactual possibilities are implicit in the models that game theorists and decision theorists have developed – in the alternative branches in the trees that model extensive form games and the different cells of the matrices of strategic form representations – but much of the reasoning about those possibilities remains in the informal commentary on and motivation for the models developed. Puzzlement is sometimes expressed by game theorists about the relevance of what happens in a game ‘off the equilibrium path’: of what would happen if what is both true and known by the players to be true were instead false. (shrink)

Employers sometimes use personality tests in hiring or specifically look for candidates with certain personality traits such as being social, outgoing, active, and extraverted. Therefore, they hire based on personality, specifically extraversion in part at least. The question arises whether this practice is morally permissible. We argue that, in a range of cases, it is not. The common belief is that, generally, it is not permissible to hire based on sex or race, and the wrongness of such hiring practices is (...) based on two widely accepted principles: the Relevance Principle and the Fairness Principle. The Relevance Principle states that hiring should be based on what is relevant to job performance, while the Fairness Principle states that hiring should be based on features that individuals can control. Since hiring based on sex or race violates these principles, it is wrong. However, we argue that, in a range of cases, hiring based on extraversion also violates these principles, and assuming the validity of the Relevance and the Fairness Principles, it follows that personality discrimination is morally wrong in those cases. (shrink)

In the recent philosophy of explanation, a growing attention to and discussion of non-causal explanations has emerged, as there seem to be compelling examples of non-causal explanations in the sciences, in pure mathematics, and in metaphysics. I defend the claim that the counterfactual theory of explanation (CTE) captures the explanatory character of both non-causal scientific and metaphysical explanations. According to the CTE, scientific and metaphysical explanations are explanatory by virtue of revealing counterfactual dependencies between the explanandum and the (...) explanans. I support this claim by illustrating that CTE is applicable to Euler’s explanation (an example of a non-causal scientific explanation) and Loewer’s explanation (an example of a non-causal metaphysical explanation). (shrink)

Members of the field of philosophy have, just as other people, political convictions or, as psychologists call them, ideologies. How are different ideologies distributed and perceived in the field? Using the familiar distinction between the political left and right, we surveyed an international sample of 794 subjects in philosophy. We found that survey participants clearly leaned left (75%), while right-leaning individuals (14%) and moderates (11%) were underrepresented. Moreover, and strikingly, across the political spectrum, from very left-leaning individuals and moderates to (...) very right-leaning individuals, participants reported experiencing ideological hostility in the field, occasionally even from those from their own side of the political spectrum. Finally, while about half of the subjects believed that discrimination against left- or right-leaning individuals in the field is not justified, a significant minority displayed an explicit willingness to discriminate against colleagues with the opposite ideology. Our findings are both surprising and important, because a commitment to tolerance and equality is widespread in philosophy, and there is reason to think that ideological similarity, hostility, and discrimination undermine reliable belief formation in many areas of the discipline. (shrink)

We draw on the phenomenon of caste-based discrimination in India and signaling theory to assess whether microfinance credit scores improve the odds of female micropreneurs from a lower caste receiving loans and whether visible business characteristics further improve the odds of receiving microfinance loans. In a sample of 3,144 female microfinance loan applicants at a female-focused microloan enterprise in India, females from a lower caste, relative to those from a higher caste, have lower odds of receiving loans when their (...) credit scores are below the mean. However, when females from a lower caste have credit scores higher than the mean, the odds of receiving a loan increase. The practical effect of size is small but meaningful. Loan applicants from a lower caste with a visible signal of business ability do not improve their chances of receiving a loan relative to those from a higher caste. (shrink)

Mary Kate McGowan’s Just Words offers an interesting account of exercitives. On McGowan’s view, one of the things we do with words is change what’s permitted, and we do this ubiquitously, without any special authority or specific intention. McGowan’s account of exercitives is meant to identify a mechanism by which ordinary speech is harmful, and which justifies the regulation of such speech. It is here that I part ways. I make three main arguments. First, McGowan’s focus on harm is misguided; (...) that ordinary speech is harmful is harder to support, and in turn does not less to support conclusions about whether it is wrong and warrants regulation, than Just Words suggests. Second, if the speech is harmful, McGowan’s account of exercitives is ill-suited to explain why; the relevant instances of ordinary speech seem to express speakers’ views about moral norms, not change social norms. Third, McGowan’s argument for why ordinary speech should be regulated because it is a form of discrimination presupposes a great deal that is controversial about what makes discrimination wrong and legally actionable, and even if it is right it may license the regulation of more speech than many, including McGowan, would deem acceptable. (shrink)

Although the counterfactual comparative account of harm, according to which someone is harmed when things go worse for her than they otherwise would have, is intuitively plausible, it has recently come under attack. There are five serious objections in the literature: some philosophers argue that the counterfactual account makes it hard to see how we could harm someone in the course of benefitting that person; others argue that Parfit’s non-identity problem is particularly problematic; another objection claims that the (...) account forces us to see many harms where there is just one; a fourth objection is based on the claim that the counterfactual account makes mysterious the distinction between harms and mere failures-to-benefit; and a final problem arises from cases of pre-emption, in which the nearest possible world in which the harmful event does not occur is a world in which some other harmful event occurs. This paper argues that, properly understood, harm essentially involves a counterfactual comparison, and that these comparisons are sensitive to context in the manner typical of counterfactual conditionals, and that, augmented with two plausible distinctions, this account has the resources to provide satisfying responses to each of the objections that have been raised against it. (shrink)

People frequently entertain counterfactual thoughts, or mental simulations about alternative ways the world could have been. But the perceived plausibility of those counterfactual thoughts varies widely. The current article interfaces research in the philosophy and semantics of counterfactual statements with the psychology of mental simulations, and it explores the role of perceived similarity in judgments of counterfactual plausibility. We report results from seven studies (N = 6405) jointly supporting three interconnected claims. First, the perceived plausibility of (...) a counterfactual event is predicted by the perceived similarity between the possible world in which the imagined situation is thought to occur and the actual world. Second, when people attend to differences between imagined possible worlds and the actual world, they think of the imagined possible worlds as less similar to the actual world and tend to judge counterfactuals in such worlds as less plausible. Lastly, when people attend to what is identical between imagined possible worlds and the actual world, they think of the imagined possible worlds as more similar to the actual world and tend to judge counterfactuals in such worlds as more plausible. We discuss these results in light of philosophical, semantic, and psychological theories of counterfactual thinking. (shrink)

The two kinds of discrimination I want to talk about are political discrimination and cognitive discrimination. By political discrimination, I mean what we ordinarily understand by the term "discrimination" in political contexts: A manifest attitude in which a particular property of a person which is irrelevant to judgments of that person's intrinsic value or competence, for example his race, gender, class, sexual orientation, or religious or ethnic affiliation, is seen as a source of disvalue or (...) incompetence; in general, as a source of inferiority.By cognitive discrimination, I mean what we ordinarily understand by the term "discrimination" in cognitive contexts: A manifest capacity to distinguish veridically between one property and another, and to respond appropriately to each. I want to explore the relation between these two kinds of discrimination, and to argue that the first type of discrimination depends upon a failure of the second. (shrink)

This book offers a way forward toward a better understanding of perceived discrimination from a critical discourse studies perspective. The volume begins with a discussion of quantitative studies on perceived discrimination across a range of disciplines and moves toward outlining the ways in which a discourse-based framework, drawing on tools from cognitive linguistics and discursive psychology, offers valuable tools with which to document and analyze perceived discrimination through myriad lenses. Rojas-Lizana provides a systematic account, grounded in a (...) critical approach, of perceived discrimination drawing on data from discourse from two minority groups, self-identified members of an LGBTIQ community and Spanish-speaking immigrants in Australia, and explores such topics as the relationship between language and discrimination, the conditions for determining what constitutes discriminatory acts, and both the copying and resistance strategies victims employ in their experiences. A concluding chapter offers a broader comparison of the conclusions drawn from both communities and discusses their implications for further research on perceived discrimination. This volume will be of particular interest to students and scholars in critical discourse studies, social policy, gender and sexuality studies, and migration studies. (shrink)