Duties of the Situated Judge: Epistemic Restraint and the Ethics of Judging Persons for Others

Someone who has worked with a person is asked to say what they are like, by a party that will decide something about them. The request is ordinary and the act is not. This paper asks what is owed by the party who issues such a judgment, and by the party who uses it. It argues, first, that the ethics usually brought to this act is the wrong ethics. Norms of assertion govern saying, and the act at issue does something other than say: it opens or closes the relations available to the person judged, which is why an account signed by someone who observed nothing still works. Duties appropriate to an exercise of discretionary power over another's conditions therefore govern it, and the obligation runs primarily to the person judged, who is absent from the transaction, rather than to the party who asked. The paper then develops the ethics from six principles of relational reproduction belonging to the framework in which it works: that reproduction preserve the possibility of continued becoming; that a shared past not be interpreted unilaterally by one of its authors; that value return to those who generated it, a principle inherited from work on generative justice and identified as such; that the authority conferred by an act of reproduction be met by a capacity to contest it, generated at the same moment; that no relation achieve its result by eliminating the other as a subject; and that no interpretation become historically irreversible, which requires that the conditions of later revision be preserved and not merely permitted. Applied to an account of a person, these yield results that a norm of assertion does not reach: that an ordinary confidential reference breaches the second and fifth principles by construction, that foreclosing a person's field is a graver wrong than describing them inaccurately, and that a duty of contestation must be built into the instrument when it is issued rather than supplied afterwards as an appeal. Two further claims follow. Refusing to write is not the safe course but the act requiring the stronger justification, since it forecloses invisibly and leaves nothing to appeal against. And because those excluded by such judgments are never observed, the party exercising this power can never establish that they exercised it well, so the ethics cannot be an ethics of correctness and must be an ethics of conduct under permanent unverifiability. The paper's duties are correlative: a restraint binding only the issuer penalises the scrupulous issuer and has, on the available evidence, already produced silence.