Vulnerable by default? Epistemic othering in legal drafting processes

Kati Nieminen and Laura Sarasoja, University of Helsinki

Is it ever possible to recognise vulnerability without (re)producing it? Is it possible to “give voice” to “the voiceless” without first constructing the silence? To whom do we actually refer, when we talk about “the poor”, “over-indebted individuals”, or “asylum seekers”, for instance? These questions are relevant both in the context of policy making and in academic research, particularly now that attempts to engage ordinary people in decision making and knowledge-production have become increasingly popular.

In our article Epistemic Othering: The Interplay of Knowledges in Legislative Drafting, published in the Journal of Law and Society (Vol 50, Issue 3, 2023), we discuss how knowledge practices of the legislative drafting process inadvertently lead to Othering. Moreover, we attempt to address the ways in which academic research may contribute to it. By Othering, we refer to practices that engender marginality and produce inequality based on (perceived, constructed) group characteristics. By epistemic othering, a concept first used by André Keet, we refer to the ways Othering is constituted through the dominant knowledge practices within the legislative drafting process. Our understanding of epistemic othering is inspired by Miranda Fricker’s epistemic injustice, as we explore how knowledge, and the production of vulnerability are connected.

The participatory practices in policy making, including legislative drafting, have become increasingly important. The idea is that by enhancing participation it is possible to expand the knowledge base of decision making, as well as to increase its democratic legitimacy. Thus, inviting ordinary people, among experts and stakeholders, to participate in policy making has become a way to source knowledge from the lived experiences of those who are affected by the policies. Particularly the experiences of “the vulnerable” are valued as “authentic” and “real”. 

There is a risk, though, in inviting “the vulnerable” to participate and share their lived experiences with policy makers and academic researchers. Can “the vulnerable” be recognised according to some external criteria, or are invitations to participate in fact calling them into being?

The idea that vulnerability cannot be simply identified has been introduced for example by the political scientist Barbara Cruikshank, whose concept technologies of citizenship refers to the practices of producing the participating, active citizen-subject. These technologies are often targeted at those who are perceived in some way at a disadvantage in society with the intention of empowering them. However, instead of just identifying the disadvantaged groups, the technologies of citizenship produce them. There is a flip side to this often well-meaning attempt to engage “the vulnerable”, because it very easily reinforces negative stereotypes and lumps people together without recognising the differences in their situations. Thus, the dilemma is, how to advocate without essentialising? How to empower without reproducing stereotypes?

In our research we analysed the ways in which individuals who have experienced debt problems were discussed in the drafting process of interest-rate cap laws on consumer credit in Finland. Those laws aimed to alleviate individual debt problems, and thus the “over-indebted individuals”, as well as their characteristics and lifestyle, formed a major discussion point.

We found that the people – i.e., those having experienced debt problems – were discussed can be described as epistemic othering. As pointed out by many researchers, in our neoliberal societies, financial and political capabilities become equated, and thus those experiencing debt problems are regarded as both financially and politically irresponsible and incapable. Therefore, their experience-based knowledge about the causes and effects of being in debt is rendered, according to our analysis, irrelevant, or filtered through other, dominant types of knowledges, such as market logic. Thus, we ask, does it make sense for people perceived as irresponsible and incapable to participate in policy making, legislative drafting, or contribute to academic research? Might it not even be harmful to assume a position of someone whose financial and political abilities are perceived as questionable by default? 

As researchers we are not free from participating in epistemic othering. Our own research was conducted as part of the project SILE – Silent agents affected by legislation: from an insufficient knowledge base to inclusive solutions, which strives to promote socially and ethically sustainable law-making that takes into account the positions, rights, and well-being of the so-called silent agents, i.e., groups typically excluded from the preparation of laws that affect them. Groups, such as prisoners, asylum seekers, children in child protection, and individuals struggling with debt, substance abuse, or mental health issues are perceived as vulnerable, silenced, and unable to make their voice heard in decision making. While it seems obvious that there are groups of people in society who are in a disadvantaged position and in need of advocates, it is also important to remember that each time we invite to participate, talk about, or address “the vulnerable”, we might make unfounded generalisations, reinforce stereotypes, and perhaps reproduce what we attempt to deconstruct. Our participatory practices may produce more complex and embodied meanings than what the representations give out. 

Co-production of knowledge is becoming increasingly popular in academic research. The focus is on the processes of knowledge production and on the engagement of non-academic actors in academic knowledge practices. Whether co-production of knowledge is a way to overcome epistemic othering seems to depend on the context: the knowledge-producing partner is not always easily identifiable, and the pre-set foundations on how and what kind of knowledges the research produces might need questioning. 

We are forever struggling with the difficult question to what extent our own research reproduces the silences and vulnerabilities we claim to recognise and address. It may not come as a surprise that, in our research, we have been unable to solve this problem once and for all. Giving up on attempts to engage and empower through research is not the answer. Still, it is important to be constantly aware and reflexive of what our work as researchers creates in the world. 

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