Rights CoLab

By Katherine McDonnell • June 16, 2023

In: Blog Post Business and Human Rights Just Ground

This post was originally published by Just Ground.

In an earlier blog post, I introduced the argument that the conceptual language of epistemic injustice would be a useful tool for helping address harmful practices of corporate power. My recent paper takes that idea and runs with it a bit further, and using access to remedy through non-judicial grievance mechanisms (NJGMs) as an example, it argues not only that the conceptual language of epistemic injustice is useful for BHR, but also that it is an ethical obligation to “interrogate and address” epistemic injustice if BHR sees itself as a field that contributes to justice and if it truly aims to centre rights holders.

What is “Epistemic Injustice”?

The label epistemic injustice is used to describe situations where individuals or groups suffer an injustice “in their capacity as a knower.” In other words, the concept centers on the harmful impacts when some people are treated with less credibility when they seek to share their knowledge, experiences, and voice, as well as the harms that occur when that knowledge and experience is excluded from practices that create the “shared” social realities which shape laws, policies, and norms, resulting in a structurally prejudiced social reality.

While the specific label of “epistemic injustice” may be new in BHR discussions, the injustices themselves are certainly not. Marginalised groups have long navigated within a limited and dysfunctional social imaginary that does not reflect their lived experiences. There are myriad types of epistemic injustice in the context of BHR. To offer just a few examples that may be familiar, epistemic injustice might look like:

the unequal involvement of different actors in developing the “common knowledge base” of the UNGPs;
Indigenous communities trying to explain that their connection to their land is more than property rights, and being met with confusion or disdain;
community members being invited to a consultation in order to receive or provide information, but not contribute as full participants or partners;
communities being forced to bring in external “experts” to say exactly what they already said in order for that information to be taken seriously;
community leaders being stigmatised as “anti-development” for raising concerns about a project.

Why the concept is relevant for BHR practice

While it is an emerging area of academic study, epistemic injustice is far from being contained within the confines of scholarly debates. The actions that cause what can be described as epistemic injustices have very real effects. As noted in the paper, “[e]xclusion of rights holder voices has material impacts on how problems are identified, how policies are developed, and on how institutions are created and maintained. Remedial systems developed in that way will not be equipped to enable rights holders to exercise their right to remedy. The right to remedy may be further obstructed when those participating in a NJGM are treated with limited epistemic agency and deflated credibility due to prejudice or bias.”

At the same time, the conceptual language of epistemic injustice can be a tool for rights holders to claim rights and demand agency. By giving a name to the often insidious harmful practices that cause these injustices, they can pull those practices from the shadows. And by pointing out what epistemic injustice is, rights holders can also show us what epistemic justice might look like.

Aren’t we already addressing this by putting rights holders “at the centre”?

To put it bluntly, no. The increased focus on putting rights holders at the centre is certainly a welcome and much-needed position in BHR. But without ensuring that people are included on their terms, that they are treated with full agency and credibility, and that their contributions are actually given adequate weight, then there is a good chance that these spaces of dialogue and engagement may actually perpetuate epistemic injustices. Applying an epistemic injustice lens can help ensure that the concepts such as “rights holder centrality” are understood and applied in a rights-respecting way.

As rights holders and their allies know very well, spaces labeled as “inclusive” are often anything but. At best, they can be tokenistic or disingenuous. But they can also perpetuate and exacerbate both epistemic and other injustices. While there is no consensus on what “meaningful” engagement means, epistemic injustice can help point to where it is not happening. Some examples of how this might play out in the context of engagement around remedy, both in deliberative forums and while participating in dialogue-based remedial mechanisms, include:

participatory injustice. If rights holders are treated as recipients or sources of information rather than full participants;
willful ignorance. If others “tune out” or fail to take seriously the elements of the communication that go beyond the existing assumptions of the listener;
“dialogical constraints.” If rights holders are constrained by rules for what can be talked about and the style of communication in a deliberative forum or negotiating table;
unfair credibility allocations. If rights holders are treated as less competent or trustworthy, while others, often corporate actors, are treated with unfairly inflated credibility.

Confronting epistemic injustice is an ethical obligation for the entire BHR community, including the author

While some corporate exercises of discursive power that cause epistemic injustices may be intentional, others may be due to subconscious biases or simply failing to think critically. Even well-intentioned corporate actors, consultants, and the like may reproduce assumptions about who the “experts” are, may fail to “listen with care” to speakers or to contents of communication that fall outside of their comfort zone, or to take seriously critiques that challenge assumptions in the discourse.

Human rights practitioners shouldn’t get too comfortable, either. We can easily be complicit in perpetuating epistemic injustices through our failure to reflect on our own prejudices and/or our tendencies to accept assumptions in the BHR discourse. And to be clear, I am including myself here. One reason I published the paper was to hold myself accountable to a commitment to develop an ongoing practice of critical reflection and change, as well as to push for structural change. As the paper concludes, “[i]f human rights, and the field of BHR more specifically, sees itself as an element of or contributing to social justice, then the epistemic elements of the wide-ranging social injustices must be addressed.” This is an ethical obligation.

The paper makes no claims to know what epistemic justice should look like, or exactly what needs to be done to get there. Claiming to know that feels like it would defeat the whole idea of acknowledging the need to expand and improve our epistemic resources. Rather, it argues that acknowledging the need to address it serves as a (hopefully) useful first step.