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

Abstract

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.

Keywords: ethics of assessment; norms of assertion;

Discussion Paper Note

This paper is a preliminary discussion paper intended to share an evolving idea
and invite further dialogue, criticism, revision, and independent development.
Its definitions, distinctions, and constructions remain provisional.
Circulation across scholarly and practical communities is part of the purpose
of releasing the manuscript at this stage.

The author treats the viewpoints, concepts, and lines of reasoning presented
here as contributions to a shared field of inquiry. Similar or related ideas
may have appeared in other intellectual, cultural, and disciplinary traditions.
The manuscript therefore states its known antecedents, separates the
researcher-origin proposal from later formal reconstruction, and leaves
historical priority open pending a systematic originality review.

The arguments should be understood as provisional and historically situated.
Readers are encouraged to question, test, revise, extend, reinterpret, or
independently develop the ideas presented here. Where appropriate,
acknowledgment of this paper as one point of encounter in the development of a
related idea is appreciated. Such acknowledgment records an intellectual route;
the ideas themselves remain available for criticism, revision, and independent
development.

Responsible Use and Rights Reservation

This section separates requested scholarly conduct from the legal permissions
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The author encourages good-faith discussion, criticism, independent inquiry,
and responsible use of the material in this work. Separately from the licence’s
terms, the author asks users to consider foreseeable harms when adapting or
applying the arguments made here. This paper argues that refusing to give an
account of a person requires a stronger justification than giving one. An
argument of that shape can be read as pressing people to speak where they have
good reason for silence, including where speaking would expose them or the
person judged to harm. The paper accordingly states the conditions under which
refusal is owed, and the author asks that the argument and those conditions be
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Notices

This page consolidates the manuscript’s publication status, licence,
development disclosure, research-programme relation, declared interest, and
suggested citation.

Publication status of this draft.
This working draft records an evolving stage of the author’s position and is
circulated for discussion. Definitions, section structure, statements, and
numbering remain subject to revision. The legal material is used to establish
what duties exist and are enforced, not to state the law of any jurisdiction,
and the author is not a lawyer. Specialist review of the legal and
philosophical material, empirical work on the proposals, and a systematic
originality audit remain future research stages.

Licence.
Except where otherwise indicated, copyright 2026 Wanhong Huang. This work is
made available under the Creative Commons Attribution-NonCommercial 4.0
International License (CC BY-NC 4.0). Subject to its terms, the licence permits
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Statement on the use of language models.
The exploratory discussions and preparation of this paper involved Anthropic’s
Claude. The model supported exploratory dialogue, source discovery followed by
verification against publisher, journal, governmental, and institutional pages,
argumentative criticism, and drafting in . Every source cited here was
verified before it was written into the manuscript rather than after. The
author selected the research question, directed and approved the theoretical
commitments and the epistemic status of the claims, and bears sole
responsibility for the manuscript, including its definitions, constructions,
arguments, conclusions, and errors. Authorship credit remains with the human
author. The access level and claim limit for every cited source are recorded in
the accompanying literature audit.

Declared interest.
The author is subject to procedures of the kind examined here and has an
interest in the conclusions reached about them. The paper is written as a
general ethics of judging persons for others, of which academic recommendation
is one case, no individual process or person is described, and the arguments
are assessed against criteria stated in advance. The interest is declared
because a paper assigning duties to parties who judge, and to parties who rely
on judgments, should say where its author stands with respect to both.

Related research programme.
This paper is project P005 and the fifth in a series on trust, neutrality, and
the transmission of shared experience. Project P001 takes responsibility for
the account of neutrality as the governance of a field of relational
conditions; P002 for the individual-scale credibility problem; P003 for the
procedure of reference-based selection; and P004 for the ontology of the judged
subject, for the finding that such instruments transmit a field of relational
conditions rather than an account, and for the scope condition on what may be
claimed of a person. The present paper takes responsibility for the duties of
the issuing and receiving parties, for the ethics of refusal, and for the
account of conduct under unverifiability. Later papers take the distribution of
the conditions under which judgments are generated, the authority to interpret
a shared experience, and the political economy of these instruments; those
questions are marked where they arise and are not argued here.

Suggested citation.
Huang, Wanhong. “Duties of the Situated Judge: Epistemic Restraint and the
Ethics of Judging Persons for Others.” Working discussion paper, 2026.

1. Introduction

A supervisor is asked what a former student is like. A manager is asked to rate
someone who will be promoted by another department. A clinician’s formulation
follows a patient to a service that did not produce it. A colleague is asked
whether a candidate should be appointed, by people who will never see the work
the colleague saw.

In each case a person who stood in a relation to another is asked to say what
that other is like, by a party that will act on the answer. The request is
ordinary. What is done in answering it is extraordinary, and this paper is about what is owed in doing it.

The obvious way to approach the question is through the ethics of speech. The
party who answers is making a statement; there are norms governing when one may
make statements; the duties follow from those norms. On that approach the
issuer must have adequate grounds, must not assert beyond what they know, and
must say what they believe. The recipient’s position is barely a subject at
all, since a hearer who is told something has no obvious duty except to weigh
it.

This paper argues that the approach is mistaken, and the argument begins from a
practice that the speech account cannot explain. A referee is asked for an
account and replies that the candidate should draft it and the referee will
sign; or asks for a curriculum vitae and writes from that. No relation is being
reported. The instrument functions exactly as it would otherwise. If what such
instruments did were to state something, an instrument stating nothing would do
nothing, and this one does something.

What it does is alter the relations available to the person it concerns. An
account of this kind opens a position, or closes one, and what the person
subsequently becomes is generated in the configuration that follows. The
account of the relation is the justification offered for opening or closing,
and not the thing conveyed. That finding belongs to the preceding paper in this
series and is taken here as given.

Three consequences organise what follows.

The first is that the governing ethics is an ethics of power rather than of
speech. Norms of assertion regulate what may be said; they have nothing to say
about opening or foreclosing what a person can become, which is a different act
and answers to different constraints. The duties that govern it are those of
any actor exercising discretionary power over another’s conditions: to have
grounds, to state them, to proportion the act to what the grounds support, and
to leave the exercise open to challenge. Section 8 develops this,
and draws a consequence that the speech account obscures: the obligation runs
primarily to the person judged, who is absent from the transaction, rather than
to the party who asked.

The second is that the framework within which this paper works already has an
ethics of acts of this kind, and it has not been used. That framework holds six
principles governing the reproduction of shared experience: 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; that the interpretive authority conferred by an act of
reproduction be met by a capacity to contest it; that no relation achieve its
result by eliminating the other as a subject; and that no interpretation become
historically irreversible. An account of a person is exactly such an act.
Section 9 states the principles, identifying the inheritance
from work on generative justice where one of them carries it, and
Section 10 applies them.

The application yields results that no norm of assertion reaches. An ordinary
confidential reference is a unilateral interpretation of a co-produced past by
one of its two authors, made without the other and withheld from the other,
which breaches the second and fifth principles at the moment of issue rather
than failing some standard it might have met. Foreclosing a person’s field is a
graver wrong than describing them inaccurately, which inverts the ordering that
an ethics of assertion imposes. And a capacity to contest must be built into
the instrument when it is issued, since the authority is conferred then, rather
than supplied afterwards as an appeal.

The third consequence concerns the shape an ethics for this act can have at
all. Where a judgment governs whether a person is admitted, the performance of
those excluded is never observed. The party exercising the power can therefore
never establish that they exercised it well, and no accumulation of experience
will supply the missing evidence. An ethics of correctness is unavailable to
them. What remains is an ethics of conduct under permanent unverifiability:
declare the basis, bound what is claimed, keep the exercise reopenable, and
ensure the person affected can contest it. Section 14
develops this and Section 16 shows that the law of
evidence reached a related conclusion long ago, restricting the use of general
judgments of persons rather than attempting to improve their accuracy.

Two claims in the paper will be resisted and both are stated plainly here.

Refusing to write is ordinarily treated as the safe course, and this paper
holds that it is the act requiring the stronger justification.
Section 13 argues that a refusal forecloses a field as
effectively as an unfavourable account, does so invisibly, leaves no artefact
against which anything can be appealed, and is cheap for the party refusing
while expensive for the person refused. The burden of justification therefore
falls on silence.

And the duties in this paper bind the recipient as well as the issuer.
Section 12 argues that they are correlative, and that a
restraint binding the issuer alone is self-defeating: an issuer who properly
limits a conclusion has no control over a reader who treats the limited
conclusion as unlimited, so unilateral restraint penalises the scrupulous
issuer and rewards the unscrupulous one. There is evidence that this has
already happened. Where duties were imposed on those who give references and
none on those who use them, the reported response was withdrawal from
disclosure, and Section 17 treats that evidence as the paper’s
principal counter-argument rather than as a difficulty to be noted.

The paper concedes what it borrows. The idea that assertability may be indexed
to a speaker’s access rather than to their state of belief is developed in
recent work on norms of assertion, and Section 6.1
states what this paper adds to it. The idea that a speaker who tells something
assumes a responsibility to the hearer belongs to the assurance view of
testimony, and Section 6.2 states that the paper’s
move is to convert the hearer’s entitlement into a duty. The principle that
value should return to those who generated it is inherited from work on
generative justice, and Section 9.3 identifies
what is inherited and what is not. The law has already imposed duties on those
who give references, and Section 5.2 treats that as
the paper’s premise rather than its finding.

Section 5 supplies the practice and the vocabulary.
Section 6 locates the account. Section 7
states the method. Section 8 and
Section 9 develop the two routes to the duties and
Section 10 joins them.
Section 11 and Section 12 state the duties of
each party. Section 13 treats refusal,
Section 14 the shape of an ethics under unverifiability,
and Section 15 the case of an account signed without
observation. Section 16 examines the law of
evidence, Section 17 the evidence against the paper’s own
proposals, and Section 18 the institutions that would have
to carry them. Section 19 states what the analysis returns to the
wider framework, Section 20 records the limits, and
Section 21 consolidates the position.

2. Background and Preliminaries

This section describes the occasions on which such judgments are solicited,
records the duties already imposed on those who give them, and states the
vocabulary carried from the preceding papers. Analysis begins in
Section 8.

2.1 Occasions on Which a Judgment of a Person Is Solicited

Four features recur across the occasions this paper treats, and the argument
uses each.

The request comes from a third party.
The person who will act on the judgment asks for it. The party who gives it
ordinarily has no independent reason to produce it and does so because it was
requested, which makes the act one performed within a relation to the
requesting party as well as about a relation to the person judged.

The person judged is absent.
They stand outside the exchange, ordinarily remain unaware of what is said, and in many settings have waived in advance any right to see it. They are the
subject of the transaction and not a party to it.

The judgment is acted on.
Something follows: an appointment, an admission, a promotion, a transfer of
care. The act is consequential in a way that distinguishes it from describing
a person to someone with no power over them.

The occasions differ in almost everything else.
A reference is written by one party who chose to accept the request. A
performance rating is produced under an institutional schedule. A clinical
formulation is made for one purpose and travels to another. A political
endorsement is public and contested. This paper treats them together because of the four features above and leaves open whether they are alike in other respects.

2.2 Duties Already Imposed on Those Who Judge for Others

Duties of the kind this paper discusses already exist, are stated with some
precision, and are enforced. The paper’s premise is their existence; its
argument concerns their shape and their one-sidedness.

Professional codes.
The governing ethical standard for psychological assessment requires that
opinions rest on information and techniques sufficient to substantiate the
findings; that opinions about the psychological characteristics of individuals
be given only after an examination adequate to support them, failing which the
psychologist must document the efforts made, clarify the probable impact of the
limited information on the reliability and validity of the opinion, and limit
appropriately the nature and extent of the conclusions; and that where a record
review is conducted without examination, this be explained and the sources
stated (Association, n.d.). Psychiatric ethics go further for a particular case,
providing that it is unethical to offer a professional opinion about an
individual who has not been examined and for whom proper authorization has not
been granted (Association, n.d.).

Assessment standards.
The standards governing educational and psychological testing locate validity
in the interpretations of results for proposed uses rather than in instruments,
so that a validation argument is bounded by the use for which it was
constructed (Association & Association, 2014).

The law of references.
In England and Wales an employer who gives a reference owes the subject a duty
of care in its preparation (Anon, 1994); a reference must be true,
accurate and fair and must not give a misleading impression, whether by
omission or by nuance, though it need not be comprehensive
(Anon, 1998); and reasonable care must be taken that it is so, which
was not satisfied where unproven and uninvestigated allegations were conveyed
(Anon, 2001). In the United States a writer of a recommendation owes third
parties a duty not to misrepresent facts where doing so creates a substantial
and foreseeable risk of physical injury, so that an unreservedly favourable
account given by parties who knew of serious complaints was actionable
(Anon, 1997). The general principle behind the civil liability is that one
who supplies information for the guidance of others in their business
transactions is liable for pecuniary loss caused by justifiable reliance on it
where reasonable care was not exercised, within limits fixed by the persons for
whose benefit the information was supplied (Anon, 1977).

The asymmetry these establish.
Every duty above binds the party who issues a judgment. None binds the party
who uses it. A referee who correctly limits a conclusion has no control over a
reader who treats the limited conclusion as unlimited, and no provision above
addresses the reader at all. Section 12 argues that this asymmetry is a structural defect making the issuer-side duties self-defeating, rather than an oversight to be corrected at the margin, and
Section 17 examines evidence that the defect has already
produced its predictable effect.

2.3 Vocabulary Carried from the Preceding Papers

The account uses a small vocabulary established across this series.

A relation is an ongoing process between parties rather than a state
obtaining at a moment. The generativity of a relation is its capacity to
continue producing outcomes, including outcomes no party can specify in
advance; it is a property of the relation and not of either party.

A relational condition is an arrangement whose presence or absence
changes which relations can be formed or continued, without determining which
of them are. The field of a person is the set of relations available to
them under the conditions then in place. Foreclosure is the removal of
conditions such that relations formerly available become unavailable.

Co-experience is what a relation generates between its parties: the
undertakings, difficulties, judgments and understandings that arose in it and
belong to neither party alone. A relational position is the standpoint
from which a party stands in a relation, which fixes what of the relation is
available to that party.

A situated judgment is a judgment of a person formed within a relation,
on the basis of what that relation made available from the position the judging
party occupied.

Two results of the preceding paper are carried here as premises and are taken as given. The first is that a situated judgment carries warrant with respect
to the relation in which what it reports was exhibited, so that extending it to
relations supplying different conditions is an error about scope rather than
about accuracy. The second is that instruments of this kind transmit a field of
relational conditions rather than an account: they alter the relations
available to the person in the receiving system, and they do so whether or not
any account of a prior relation underlies them, the account being the
justification offered for the alteration rather than the thing transmitted.
Section 8 draws the ethical consequence of the second, and
Section 15 treats the case that established it.

3. Literature Review

This section locates the account. It concedes at the outset that two of the
paper’s central moves have near neighbours, states what the paper adds to each,
and identifies the one position on which the survey found the literature
genuinely thin.

3.1 Norms of Assertion and the Position to Know

The received treatment of when one may say something about another proceeds
from a norm on assertion.

The baseline holds that one must assert a proposition only if one knows it,
supported by the observation that strong statistical evidence does not license
assertion and that conjoining an assertion with a denial of knowledge is
defective (Williamson, 1996; Williamson, 2000). Competing formulations
substitute truth (Weiner, 2005), rational credibility
(Douven, 2006), or the requirement that the assertion express the knowledge
rather than merely accompany it (Turri, 2011). A prominent objection holds that a speaker may properly assert what she withholds belief from, where she possesses evidence of the appropriate kind, which motivates a norm of
reasonable belief rather than of knowledge (Lackey, 2007).

One recent formulation is close enough to this paper’s position that the
concession must be made before anything is claimed. On that account one should
assert a proposition only if one is in a position to know it, and the norm is
defended as foregrounding the public and other-regarding character of assertion
(Willard-Kyle, 2020). What matters here is the form of the norm rather than
its defence: assertability is indexed to the speaker’s access rather
than to the speaker’s state of belief, which is the structure this paper’s
scope norm shares.

Two additions distinguish the present norm and both are stated in
Section 11.3. (1) The index is a relation rather than
a proposition. Being in a position to know is a relation between a speaker and
a fact; the present norm indexes what may be asserted to the relation within
which the conduct reported occurred, so that the same speaker may be in a
position to know a great deal about a person under one set of conditions and
nothing about them under others. (2) The conditions of access form part
of what must be asserted. A speaker who is in a position to know satisfies
the earlier norm by asserting the proposition alone; the present norm is
satisfied only if the conditions under which the speaker was so positioned are
conveyed with it.

If either addition collapses into the earlier norm, the scope norm is an
application rather than a new norm, and Section 20 records this
as the paper’s principal exposure in this area.

3.2 Testimony, Assurance, and the Responsibility of a Speaker

A second literature bears on the paper’s correlativity claim and partly
anticipates it.

The epistemology of testimony treats reliance on what others say as a basic
source of warrant rather than as a derivative one (Coady, 1992), and the
dualist development holds that testimonial knowledge is a joint product
requiring positive contributions from the speaker, whose statement must be
reliable, and from the hearer, who must possess appropriate positive reasons
and lack defeaters (Lackey, 2008). That is the strongest existing two-sided
structure and it is conceded here.

The assurance view goes further in the direction this paper takes. On that account, telling someone something goes beyond producing evidence for them: it gives an assurance, on the model of a promise, whereby the speaker assumes
a responsibility to the hearer and the hearer acquires a standing to complain
if the assurance fails (Moran, 2005; Moran, 2018); the parallel formulation
treats telling as an invitation to trust that commits the teller
(Hinchman, 2005). The standard objection holds that assurance is neither
necessary nor sufficient for a testimonial reason, since an overhearer may gain
warrant without being assured of anything (Schmitt, 2006).

The concession and the difference can now be stated precisely. The assurance
view already establishes that a speaker who tells assumes a responsibility
running to the hearer. What it gives the hearer in return is an
entitlement: a standing to complain, to rely, to hold the speaker to
what was assured. This paper’s claim is that in the case at issue the hearer
also incurs a duty, and Section 12 argues that without
it the speaker’s restraint is self-defeating.

3.3 Obligations of the Hearer in Testimony

The survey underlying this paper found the hearer’s side thin, and the thinness
is worth stating exactly, since the paper’s most novel claim sits here.

The classical position holds that a hearer who accepts testimony
uncritically is culpably gullible and must monitor for signs that the speaker
is untrustworthy (Fricker, 1994). Whether that monitoring is a standing
requirement or is engaged only where something prompts it has been argued
directly (Goldberg, 2006), and a related programme locates part of
a hearer’s warrant outside the hearer altogether, in the reliability of the
processes and the surrounding epistemic community
(Goldberg, 2010).

Each of these concerns whether the speaker is to be believed. None concerns the
scope of what is being said: whether the statement, taken as entirely
sincere and entirely competent, warrants what the hearer proposes to do with
it. A hearer who has satisfied every duty in this literature may still rely on
a scrupulously limited account as though it were unlimited, and nothing in the
literature identifies that as a failure. Section 12.1
states the duty that would.

3.4 Intellectual Humility and the Owning of Limitations

The virtue-theoretic literature supplies the disposition the issuer’s duties
would express.

Responsibilist virtue epistemology treats intellectual virtues as acquired
excellences of character bearing on the regulation of belief and its expression
(Zagzebski, 1996; Roberts, 2007), and the vice opposed to restraint has
been analysed as a form of self-indulgence (Battaly, 2010). The account
nearest to this paper defines intellectual humility as the owning of one’s
epistemic limitations, requiring proper attentiveness to them and an
appropriate response (Whitcomb et al., 2017).

The relation to the present argument is one of expression rather than of
derivation. A person who owns their limitations will, other things equal, state
the conditions of their access and decline where the access will not bear what
is asked. But the duties in Section 11 are requirements on the
act rather than on the character of the actor, and they hold of an issuer who
lacks the virtue entirely. The paper takes the virtue literature as describing
what discharging the duties would look like in a person, and not as grounding
them.

3.5 Correlativity of Rights and Duties

The architecture the paper needs for its central structural claim is long
established in jurisprudence.

The analysis of jural relations distinguishes claim-rights, privileges, powers
and immunities, and pairs each with a correlative occupied by the other party,
so that a claim-right in one party is a duty in the other, a privilege in one
is the absence of a right in the other, a power in one is a liability in the
other, and an immunity in one is a disability in the other
(Hohfeld, 1913; Hohfeld, 1917). The relevant feature is that positions come in
pairs: to specify one party’s position is to specify the other’s.

Section 12.3 uses this to state what is wrong with
a duty resting on the issuer alone. The assurance view pairs the speaker’s
responsibility with the hearer’s entitlement, which is a coherent pairing. The
paper’s argument is that in this case the pairing is the wrong one: an
entitlement in the hearer leaves the hearer free to rely as they choose, and it
is the freedom to rely without limit that makes the issuer’s restraint
worthless.

3.6 Lying, Misleading, and Withholding

The case examined in Section 15 requires a distinction that
has been analysed at length and contested.

The relevant treatment distinguishes lying, which involves saying what one
believes false in a context warranting the truth of what is said, from merely
misleading, which involves conveying a falsehood without saying it; and it
argues, against a common intuition, that there is no general moral difference
between the two (Saul, 2012). A subsequent development refines the boundary
by reference to what is put on the conversational record (Stokke, 2018).

The bearing on this paper runs against it and is recorded here.
Section 15 argues that an account signed without
observation is assessed differently under an ethics of reporting than under an
ethics of authorising, and that the two assessments select different remedies.
If lying and misleading are morally on a par, then the difference between
misdescribing a relation and authorising without having observed one may matter
less than the paper claims, and Section 15.4
engages the point rather than passing it.

3.7 Generative Justice and the Return of Value to Its Producers

One of the principles stated in Section 9 is inherited, and
the inheritance is identified here so that
Section 9.3 can demonstrate exactly what is
taken and what is not.

The account of generative justice holds that the destructive force of extractive
arrangements lies in the alienation of value from those who generate it, and
defines the position in three limbs: a universal right to generate unalienated
value and to participate directly in its benefits; the right of value
generators to create their own conditions of production; and the right of
communities of value generation to nurture self-sustaining paths for its
circulation (Eglash, 2016). The account is developed across ecological,
labour and social value, and locates the difficulty in extraction as such
rather than in who does the extracting, so that centralised redistribution and
private appropriation are treated alike.

Two features bear on this paper and the second is the one that does the work.
The first limb supports the familiar claim that those who generated something
should share in what it yields. The second limb is stronger and less often
noticed: those who generate value have a claim over the conditions under
which production occurs, and not only over its proceeds. Applied to an account
of a shared past, the person judged co-generated what is being reported and has
no say whatever in the conditions under which the report of it is produced: who
writes it, when, in what form, and under what confidentiality.
Section 9.3 states which of the framework’s
principle is inherited from this account and which part of it is not.

3.8 Boundary of the Present Contribution

Table 1 records what each literature licenses and where
the contribution begins.

| @P0.22YY@

Literature	Licensed role	Boundary of the present contribution
Norms of assertion	Assertability indexed to access rather than to belief
(Willard-Kyle, 2020); the knowledge norm and its rivals
(Williamson, 1996; Lackey, 2007)	The index is a relation rather than a proposition, and the conditions of
access form part of what is asserted.
Assurance and testimony	The teller assumes responsibility to the hearer
(Moran, 2005; Hinchman, 2005); two-sided production of testimonial knowledge
(Lackey, 2008)	The hearer’s entitlement is converted into a duty, on the ground that an
entitlement leaves the issuer’s restraint worthless.
Hearer’s obligations	Monitoring for untrustworthiness (Fricker, 1994); the scope of that
requirement (Goldberg, 2006)	Concerns whether to believe rather than what the statement warrants; the
scoping duty is not found there.
Intellectual humility	Owning one’s epistemic limitations (Whitcomb et al., 2017)	Describes the disposition that discharging the duties expresses; the duties
bind an issuer lacking the virtue.
Correlativity	Jural positions come in pairs (Hohfeld, 1913; Hohfeld, 1917)	Supplies the architecture; the claim that the existing pairing is the wrong
one is made here.
Lying and misleading	The distinction and the argument against a general moral difference
(Saul, 2012)	Bears against the paper’s divergence claim and is engaged rather than
avoided.
Generative justice	Value returns to its generators; generators hold a claim over the conditions
of production (Eglash, 2016)	Inherited, and identified as inherited where the framework’s principle
carries it.
Law of references and of hiring	Enforced duties on issuers
(Anon, 1994; Anon, 1998; Anon, 2001; Anon, 1997); a proportionate duty of
inquiry on employers (Anon, 1983; Anon, 1992)	The paper’s premise. The hiring duty runs to injured third parties and not
to the person judged.

Table. Antecedent literatures and contribution boundaries

Four positions are left unoccupied by the literatures surveyed. No treatment
located here states a duty on the party who relies on a judgment to establish
its scope before relying on it. None argues that duties on the issuer and the
recipient are correlative in the sense that a duty on the issuer alone is
self-defeating. None holds that refusing to give an account requires a stronger
justification than giving one. And none develops an ethics for a power whose
good exercise cannot in principle be established, which
Section 14 argues is the situation of every party who
decides whom to admit.

The claim is that these four are unoccupied, not that their components are unprecedented; the components are conceded above.

A terminological caution belongs here. Reliance, silence, and the duties of a recipient all carry established and entirely different meanings in the law of evidence and procedure, where reliance is an element of liability for a statement, silence bears on inferences that may be drawn against a party, and the duties of a recipient concern what a tribunal may admit. This paper uses the terms in their ordinary senses and claims no continuity with those doctrines, except where a legal source is cited for a proposition, as in Section 16.

A bounded search for prior use of the paper’s own formulations, covering a duty on the relying party to establish the scope of a judgment, the correlativity of issuer and recipient duties, and the treatment of refusal as the act requiring the stronger justification, returned no related scholarly use. A bounded search establishes that a formulation was not found rather than that it does not exist, and a systematic originality audit remains outstanding and is recorded in Section 20.

Three questions arising here belong to later papers in this series and are
marked where they arise rather than argued: how the conditions under which
judgments are generated are distributed, which is the subject of the injustice
paper and which carries the treatment of testimonial injustice; who holds
authority to interpret a shared experience, which is the subject of the
jurisprudence paper; and what accumulates to those who issue such judgments,
which is the subject of the political-economy paper.

4. Method and Selection of Cases

This section states the form of argument, why these cases were chosen, and what
would count against the account.

4.1 Independent Routes to the Same Duties

The paper argues for its duties twice, from independent premises, and the
independence is deliberate.

The first route runs from the mechanism. If an instrument of this kind
authorises rather than reports, then the duties governing it are those of an
actor exercising discretionary power over another’s conditions, and norms
governing what may be said are addressed to a different act.
Section 8 develops this. It requires the finding of the preceding
paper in this series and nothing from the framework’s ethics.

The second route runs from the framework’s ethical principles governing the
reproduction of shared experience. Section 9 states them and
Section 10 applies them to an account of a person. This
route requires the framework and nothing from the mechanism.

That the two converge on substantially the same duties is a result rather than
a redundancy, and it has a practical consequence: a reader who rejects the
framework retains Section 8, and a reader who rejects the
authorisation finding retains Section 9. Where the two
routes diverge, Section 10.5 says so.

4.2 Selection of the Cases Examined

Two cases are examined at length and each was chosen because it discriminates
between positions rather than because it illustrates one.

An account signed without observation is examined in
Section 15 because the ethics of reporting and the ethics of
authorising deliver different verdicts on it. Under the first it is a species
of deception; under the second it is an exercise of power without grounds. Both
condemn it, so the case does not test whether the act is wrong; it tests which
description of the wrong is correct, and the descriptions select different
remedies.

The restriction of character evidence is examined in
Section 16 because it is an instance in which an
institution faced this paper’s problem and responded by limiting what a
judgment of a person may be used for rather than by improving how such
judgments are made. It is a precedent rather than an illustration.

Two absences are recorded. The unfavourable account is treated within
Section 13 rather than as a separate case, since the decision to
report unfavourably and the decision to decline are the same decision seen from
two sides. And no case is examined in which the duties proposed here have been
implemented, because none was located; the paper’s proposals are accordingly
untested.

4.3 Conditions of Disconfirmation

The account should be narrowed or withdrawn under any of the following
conditions.

First, if the additions distinguishing the scope norm from an access-indexed
norm already in the literature (Willard-Kyle, 2020) collapse into that norm,
the scope norm is an application rather than a contribution, and
Section 11.3 should be rewritten to say so.

Second, if a duty on the issuer alone can be shown to produce the intended
restraint without a corresponding duty on the recipient, the correlativity
claim of Section 12.3 is false and the paper’s
central structural argument fails.

Third, if refusal can be shown to leave a person’s field unchanged, the
inversion of Section 13 is false and declining reverts to the
safe course.

Fourth, if the good exercise of this power can be established after the fact,
the argument of Section 14 is unnecessary and the ethics
may be an ethics of correctness after all.

Fifth, if the duties proposed here are shown to worsen what they govern, the
proposals should be withdrawn rather than qualified. Evidence that
issuer-side duties have already produced withdrawal from disclosure exists and
is treated in Section 17, and evidence that codes of this kind
do not alter conduct is treated in Section 18.

5. Judging for Others as an Exercise of Power over a Field

This section develops the first route. It argues that the act at issue is
misdescribed as speech, states what it is instead, and derives the duties that
attach to acts of that kind.

5.1 Authorising Rather Than Reporting

The finding is taken from the preceding paper in this series and restated
because everything in this section rests on it.

A referee is asked for an account and replies that the candidate should draft
it and the referee will sign; or asks for a curriculum vitae and writes from
that. No relation is reported, because either none exists or nothing of it
enters the document. The instrument functions as it would otherwise: it is
accepted, weighed, and produces the same effect on the outcome.

If what such instruments did were to state something about a relation, an
instrument stating nothing would accomplish nothing. It accomplishes something.
What it does is alter the relations available to the person it concerns: it
opens a position, or closes one, and what the person subsequently generates is
produced in the configuration that follows. The account of the relation is the
justification offered for the alteration and not the thing transmitted.

Two clarifications belong here. The finding leaves the content of such accounts relevant. Content bears on whether the alteration is
justified, and most of this paper’s duties concern content. It holds that the
alteration is what the instrument effects, and that the alteration occurs
whether or not the content supports it.

And the finding concerns the act rather than what those who write such accounts believe themselves to be doing. They ordinarily believe they are conveying an
assessment, and Section 8.2 explains why the belief is
natural and why it persists.

5.2 Inapplicability of Norms Governing Assertion

The consequence for the ethics is immediate and it disqualifies the approach
that would otherwise be taken.

Norms of assertion regulate saying. Whether the norm requires knowledge
(Williamson, 1996), reasonable belief (Lackey, 2007), or a position to
know (Willard-Kyle, 2020), what it governs is the conditions under which a
speaker may put a proposition forward as true. Every such norm presupposes that
the act under evaluation is the putting forward of a proposition.

The act evaluated here is the alteration of the relations available to a
person. Nothing in any norm of assertion addresses whether one may open or
close a position for another, on what grounds, or subject to what review. A
speaker who satisfies the strictest norm of assertion available has said
nothing improper and may still have exercised a power over another person
without grounds, without notice, and without recourse.

An ethics of judging persons for others that proceeds from norms of assertion
evaluates the wrong act. It evaluates the statement offered in justification
and leaves unevaluated the alteration the statement is offered to justify.

Claim ? explains a feature of existing practice that is
otherwise puzzling. The professional codes surveyed in
Section 5.2 are constructed almost entirely as
constraints on what may be asserted: have adequate grounds, limit the
conclusions, name the sources (Association, n.d.). They contain no provision
about the duration of the effect, about notice to the person judged, or about
review. If the act were assertion, that would be the right shape. Since the act
is the alteration of a person’s conditions, the codes regulate the
justification and leave the exercise itself untouched.

Two objections are recorded and answered in part.

The first holds that the alteration is effected by the receiving institution
and not by the issuer, so that the issuer really does only speak. The reply is
that the issuer’s act is a necessary component of an exercise that neither party
performs alone, and that a participant in a joint exercise of power over
another does not escape the duties of the exercise by pointing at the other
participant. Section 12 distributes the duties between them
rather than assigning them all to either.

The second holds that norms of assertion should not be extended to
institutional practices at all, since they were developed for individual speech
acts. The reply concedes the premise and turns it: this paper declines to apply them rather than extending them, and the burden falls on an account that would
apply norms designed for individual speech to an institutional exercise of
power.

5.3 Duties Attaching to Discretionary Power over Another’s Conditions

If the act is an exercise of discretionary power over another’s conditions,
then the duties that attach to it are those attaching to such exercises
generally. Four are stated here and developed in
Section 11 and Section 12.

(1) Grounds. The exercise must rest on something, and the party
exercising must have established that it does before exercising rather than
afterwards.

(2) Statement of grounds. The grounds must be stated, and stated in a
form that permits another party to assess whether they support what was done.
An exercise whose grounds are unstated cannot be assessed at all, which is a
defect independent of whether the grounds were good.

(3) Proportion. What is done must not exceed what the grounds support.
This is the duty that Section 11.3 states as a scope
condition, and it is the point at which the two routes of
Section 7.1 first meet.

(4) Review. The exercise must remain open to challenge by the party
affected. An exercise that is final at the moment it is made is merely unreviewable, and is no better made for being final.

None of these is novel as a constraint on discretionary power, and the paper
claims none of them as such. What is claimed is that these are the duties governing this act, and that the duties ordinarily discussed in connection with it govern a different one.

5.4 Direction of the Obligation Owed

A consequence follows that inverts the direction of obligation assumed in the
literature surveyed in Section 6.2.

On the assurance view, the party who tells assumes a responsibility to the
party told (Moran, 2005). That is the correct account of an assurance. It is
the wrong account of this act.

Where the act alters the relations available to a person, the primary
obligation runs to that person, who is absent from the transaction and does not
consent to it. The obligation to the party who asked is real and derivative:
they are owed a justification adequate to the decision they must make, and they
are owed it because they will exercise the power jointly.

Claim ? reorders the duties in
Section 11. On an assurance account the issuer’s principal wrong
is to mislead the recipient. On the present account the issuer’s principal
wrong is to alter a person’s conditions on grounds that will not bear it, and
misleading the recipient is one way of doing that rather than the wrong itself.

The reordering also explains why the person judged is absent from every code
surveyed in Section 5.2. Those codes were built on
the assumption that the duty runs to the party who asked, which is what an
ethics of assertion yields. Where the obligation runs primarily to the person
judged, their absence from the transaction is the first thing requiring
justification, and Section 10.2 argues that it
cannot be justified.

6. The Ethical Principles of Relational Reproduction

This section develops the second route. The framework within which this paper
works holds six principles governing acts that reproduce shared experience, and
an account of a person given to a third party is such an act. The principles
are stated here; Section 10 applies them.

Two preliminary remarks. The first five are ordered so that each presupposes
the one above it, and the sixth stands outside that ordering as a principle
governing how the others change in history. And one of the six carries an
inheritance from an existing account, which
Section 9.3 identifies limb by limb rather
than absorbing.

6.1 Preservation of the Possibility of Continued Becoming

An act that reproduces shared experience should preserve the possibility of
continued becoming for those whose experience it reproduces. The requirement is
openness, and not the continuation of any particular relation or arrangement.

The distinction in the second sentence carries most of the principle’s content
and is easily lost. It leaves relations free to end, arrangements free to lapse, and everything free to change. A relation
that ends may leave every possibility open; an arrangement scrupulously
maintained may close them.

What the principle forbids is foreclosure: the removal of conditions such that
relations formerly available become unavailable, without a route by which they
might become available again. Applied to the act at issue, an account that
closes a person’s field is assessed under this principle, and
Section 10.4 argues that the assessment is graver
than the assessment of an account that describes them inaccurately.

6.2 Shared Authorship of a Shared Past

What a relation generated belongs to its parties jointly. It may not be
interpreted, defined, or revised unilaterally by one of them. Authorship of a
shared past is shared.

Principle ? presupposes
Principle ?: a party whose account of the shared past is
imposed on them has had a possibility closed, namely the possibility of that
past being understood otherwise.

The principle concerns interpretation rather than fact. Two parties may agree
entirely about what occurred and differ about what it was an instance of, and
the principle governs the second. It is at the second that an account of a person operates, since what is reported is a characterisation of occurrences rather than a list of them, and Section 10.1 argues
that the ordinary practice violates the principle at exactly this point.

6.3 Non-Exploitation and the Return of Value to Its Producers

No party may be instrumentalised or sacrificed for another’s benefit. Where
value is generated jointly, it should return to those who generated it, and
those who generate it hold a claim over the conditions under which it is
produced.

This principle is the floor: it presupposes the two above and states the limit
below which an arrangement is not merely deficient but exploitative.

Inheritance from the account of generative justice.
The second sentence is not the framework’s own and is stated here as inherited.
The account of generative justice holds that the destructive force of
extractive arrangements lies in the alienation of value from those who generate
it, and defines the position in three limbs: a universal right to generate
unalienated value and to participate directly in its benefits; the right of
value generators to create their own conditions of production; and the right of
communities of value generation to nurture self-sustaining paths for its
circulation (Eglash, 2016).

The inheritance is limb by limb. The first limb is taken in full and supplies
the clause requiring that value return to those who generated it. The second
limb is taken in full and supplies the clause about the conditions of
production, which is the part of the principle that does most of the work in
Section 10.3 and which the framework did not
previously state. The third limb, concerning the rights of communities to sustain paths of circulation, is left aside, because the present paper concerns an act between particular parties rather than the design of a circulatory
system, and taking it would commit the paper to claims about institutional
economies that it does not argue.

Elements originating outside that account.
The first sentence of the principle, prohibiting instrumentalisation, comes from elsewhere and is older. And the framework’s application differs
in domain: the account cited concerns ecological, labour and social value in
systems of production, whereas the principle is applied here to what a relation
between two persons generated. The transposition is the framework’s, and any error in it rests with the framework rather than with the account inherited from.

6.4 Simultaneous Generation of Counter-Power

Every act that reproduces shared experience confers interpretive authority on
the party performing it. A just reproduction must therefore generate, at the
same moment, the capacity to question, revise, and renegotiate what it
established.

Two features distinguish this principle from a right of appeal and both are
load-bearing.

The first is its ground. The authority is conferred by the act itself, in the moment of performing it, rather than by an institution afterwards,
because to fix an interpretation of a shared past is to occupy the position
from which that past is understood. What must be met is therefore generated by
the same act that requires meeting.

The second is the simultaneity. A capacity to contest supplied afterwards, as
an appeal against a determination already acted on, arrives after the authority
has been exercised and after its effects have propagated. The principle
requires that the capacity be generated with the act, which is a requirement on
the design of the instrument rather than on the availability of a forum.
Section 11.5 states what this asks of an issuer and
Section 12.2 what it asks of a recipient.

The principle’s purpose is stated in the framework as preventing history from
freezing. An interpretation that confers authority without generating the means
to contest it accumulates authority in one direction, and repetitions of the
act compound rather than correct.

6.5 Preservation of the Other as a Subject

No relation achieves a good result by eliminating the other as a subject. Union falls short of identity, and the goal lies elsewhere than in agreement; what must survive the relation is the other’s standing as a party who can speak, differ, and answer.

Principle ? presupposes the preceding four and states what
they jointly protect. A party who cannot speak in a matter concerning them has
been eliminated as a subject in it, whatever else is preserved.

The principle bears on a feature of the practice that is ordinarily treated as
administrative. Where an account of a person is confidential to that person,
they cannot see what is said, cannot answer it, and cannot be heard in the
proceeding it governs. Section 10.2 argues that this is a breach of this principle, rather than a procedural defect attaching to an otherwise sound practice, in the very relation whose product is being reported.

6.6 Historical Revisability and the Conditions That Sustain It

No interpretation of what a relation generated, and no interpretation of what
justice required in it, should become historically irreversible. Revisability
must obtain at three layers: interpretations must remain contestable,
institutions must remain alterable, and today’s understanding of what is just
must remain open to revision by future relations. And the conditions under
which revision is possible must themselves be preserved, since a right to
revise is empty where what would be needed to exercise it has not been kept.

Three features of the principle are used later.

Position of the principle outside the axiomatic ordering.
The first five principles constrain relations. This one governs how those
constraints change in history, and it therefore applies to itself. It is a
meta-principle and not a sixth constraint of the same kind.

Asymmetry in who retains the standing to reopen.
The principle is stated in terms of who retains the standing to reopen, and the
standing rests with the party bearing the cost of the interpretation rather
than with the party who made it or the party who acted on it. A remedy on this account is a path by which the party who bore the cost re-enters the process and contests the interpretation that stands, rather than a correct judgment, which
is continued participation in the historical generation of justice rather than
compensation for its failure.

Preservation of the conditions of revision.
This is the extension the final sentence of the principle carries, and it is
what distinguishes the principle from a right of appeal that is formally
available and practically empty. An interpretation may be nominally open to
revision while everything needed to revise it has been discarded: the record of
what was said, the accounts of parties who observed differently, the
divergences that were resolved before the decision was recorded. Preserving
those is not a courtesy owed to a future contestant; it is what makes the
right to contest a right to anything.
Section 12.2 states this as a duty of the party who
receives such judgments, and it is the point at which this principle bears most
heavily on the paper’s practical proposals.

7. Application of the Principles to an Account of a Person

This section applies the six principles to the act at issue and joins the two
routes. Four results follow, and three of them are unavailable to an ethics
built on norms of assertion.

7.1 Unilateral Interpretation of a Co-Produced Past

An account of a person given to a third party reports what a relation
generated. Under Principle ? what a relation generated
belongs to its parties jointly and may not be interpreted unilaterally by one
of them.

The ordinary practice satisfies neither condition. One of the two parties
characterises the shared past; the other neither participates in the
characterisation nor sees it; and the characterisation is then given
institutional force. The act is a unilateral interpretation of a co-produced
past by one of its two authors.

An account of a person given without the participation of the person judged
breaches Principle ? in virtue of how it is produced,
and not in virtue of anything it says. An account that is entirely accurate,
carefully limited, and generously worded breaches it in the same way as one
that is none of these.

Claim ? states something stronger than any scope norm can,
and the difference is worth marking. A scope norm holds that an account
asserting more than the relation affords has exceeded what it may claim; it is
satisfied by an account that stays within its scope.
Claim ? holds that the practice is in breach at the point
of production, so that staying within scope is necessary and insufficient.

Two qualifications bound the claim. It leaves open whether such accounts should be given, and Section 13 argues that they should. What follows is that the practice carries a standing
defect requiring justification, and that the justification cannot be that the
account was accurate.

And the breach admits of degree in one respect: the further the account moves
from occurrences toward characterisations of the person, the more of the
co-produced interpretation is being appropriated. An account confined to what
happened appropriates less than one stating what the happenings show about the
candidate, which is the distinction Section 11.4 states as
a duty.

7.2 Confidentiality and the Elimination of the Subject

Under Principle ? no relation achieves a good result by
eliminating the other as a subject, where what must survive is the other’s
standing as a party who can speak, differ, and answer.

Where an account of a person is confidential to that person, they cannot see
what is said of them, cannot answer it, and cannot be heard in the proceeding
it governs. In the matter that concerns them most directly they have no
standing to speak at all.

This is ordinarily treated as an administrative arrangement adopted for good
reasons, and the reasons are real: candour is thought to depend on it, and
Section 17 takes that argument seriously. Under Principle ? it is something more than an administrative arrangement. It is the
elimination of a party as a subject in the very relation whose product is being
reported, and the fact that it is adopted for good reasons makes it a
justified breach at best rather than no breach.

Two features sharpen the result.

The elimination is effected by the party who was the other author of the shared
past. It is the referee, not the institution, whose account cannot be seen, and
the referee ordinarily requires the confidentiality or accepts it as a
condition of writing.

And the elimination is ordinarily consented to in form. The person judged
waives the right to see what is said, and the waiver is offered as a choice.
What is offered is a choice between an account they may read and an account
that will be believed, which is a choice made under a condition the person
judged did not set. Section 12 treats the waiver as a matter
for the receiving party rather than for the issuer, since it is the receiving
party that attaches the weight.

7.3 Accumulation of Standing from Others’ Co-Production

Principle ? holds that value generated jointly should
return to those who generated it, and that those who generate it hold a claim
over the conditions under which it is produced. Both limbs apply and the second
applies more sharply.

Return of accumulated standing to the issuer.
A referee whose accounts are accepted accumulates something: a record of
endorsements taken up, a standing as a party whose judgment carries, and a set
of former candidates with reason to regard them favourably. What is accumulated
was generated in relations the candidate co-produced, and it returns to the
referee. This paper records the point and leaves its development aside, since the
accumulation and circulation of such standing is the subject of the
political-economy paper in this series.

Absence of any say in the conditions of production.
The person judged has no say whatever in the conditions under which the account
of their shared past is produced. They nominate but do not choose who writes it, and the timing, the form, the length, the confidentiality and the questions are all settled elsewhere. Every condition of production
is set by the receiving institution and the referee between them.

Under Principle ? this is a distinct wrong from
receiving none of the value, and it is the one that admits of a remedy the
paper can state. A person who cannot share in the standing an account
generates may still hold a claim to participate in setting the conditions under
which the account of their own shared past is produced: to know what questions
were asked, to supply the conditions under which the conduct reported occurred,
and to know that an account has been given at all.
Section 11.2 and
Section 12.2 state what follows.

7.4 Foreclosure Weighed against Inaccuracy

Principle ? requires that an act reproducing shared
experience preserve the possibility of continued becoming. The requirement is
openness rather than continuation, and the consequence for this paper inverts
an ordering that an ethics of assertion imposes without argument.

On an assertion account the gravity of a wrong tracks the divergence between
what was said and what is the case. An inaccurate account is the paradigm wrong; an accurate account that closes a person’s options counts as no wrong at all, since nothing improper was said.

Under Principle ? an accurate account that forecloses a
person’s field is a graver wrong than an inaccurate account that leaves it
open. Accuracy bears on whether the foreclosure was justified, and leaves the gravity of what was done undetermined.

Claim ? will be resisted and three clarifications are
offered.

It leaves inaccuracy unlicensed. An inaccurate account that forecloses is worse
than either, and accuracy remains a condition on the justification of any
foreclosure. What the claim denies is that accuracy is the measure of the
wrong.

It concerns foreclosure rather than adverse outcome. An account that leads to a
person’s not being appointed has not thereby foreclosed anything, since the
positions remain available and the person may be appointed elsewhere or later.
Foreclosure is the removal of conditions such that what was available becomes
unavailable without a route back, and
Section 14 argues that the absence of a route back is the
feature that distinguishes it.

And it explains why the duties of Section 11 are weighted as they
are. If foreclosure is the graver wrong, then a duty to leave the exercise
reopenable is more important than a duty to be right, which is the opposite of
the weighting that professional codes adopt.

7.5 Convergence of the Two Routes

The duties reached from the mechanism in Section 8 and the
results reached from the principles in this section coincide at three points
and diverge at one, and both facts are worth stating.

Points at which the two routes agree.
The duty of proportion in
Section 8.3 and the scope condition following from
Principle ? require the same restriction on what may be
claimed. The duty of review in Section 8.3 and
Principle ? require the same provision for contestation,
though the second requires it earlier. And Claim ?, that the
obligation runs primarily to the person judged, is reached independently by
Principle ?, which makes their standing as a party the thing
to be preserved.

The convergence matters because the routes share no premises. One requires the
finding that the instrument authorises; the other requires the framework’s
ethics. A reader may reject either and retain the duties.

The result available only from the principles.
The principles yield one result the mechanism does not. Claim ?,
that the practice is in breach at the point of production regardless of
content, follows from Principle ? and does not follow
from the account of the act as an exercise of power. An exercise of power over
another’s conditions may be entirely legitimate where the grounds support it;
what makes this act defective on the second route is that the grounds concern a
past the other party co-authored and is not consulted about.

A reader persuaded only by Section 8 therefore obtains the duties
of Section 11 and Section 12 without
Claim ?, and Section 20 records which of the
paper’s results depend on which route.

8. Duties of the Party Who Issues a Judgment

This section states what is owed by the party who gives an account of a person
to a third party. The duties follow from the four requirements on exercises of
discretionary power stated in Section 8.3 and from the
principles applied in Section 10, and they are ordered by
the weighting Claim ? imposes rather than by the weighting
professional codes adopt.

8.1 Establishing the Grounds before Asserting

The issuer must establish that what is to be asserted rests on something,
before asserting it. Where an assertion would convey that conduct occurred, the
issuer must have established that it occurred and not merely that it was
alleged.

This duty is already imposed and enforced. Professional standards require that
opinions rest on information sufficient to substantiate the findings
(Association, n.d.); and the law of references has held an employer liable for
conveying allegations of dishonesty that were unproven and had not been
investigated (Anon, 2001). The paper adds nothing here and records the duty
because the duties that follow depend on it.

8.2 Declaring the Position from Which the Judgment Is Made

The issuer must state the position from which the account is given: the
capacity in which they knew the person, the period, the conditions under which
the conduct reported occurred, and the respects in which their view was
partial.

The professional analogue is close and is conceded. Where an adequate
examination is impracticable, the psychologist must document the efforts made,
clarify the probable impact of the limited information on the reliability and
validity of the opinion, and limit the conclusions accordingly
(Association, n.d.). What the present duty substitutes for the examination is the
relation: what must be declared is not how much of an assessment was completed
but what the relation afforded.

The duty is a requirement on content and not on candour. It leaves the issuer’s doubts, reservations and private view undisclosed. It
asks for the conditions of access, which are facts about the arrangement rather
than about the issuer’s state of mind, and which a reader cannot recover from
the account itself.

8.3 Restricting the Assertion to the Conditions of Access

The issuer may assert of a person only what the relation they stood in
afforded, and the conditions of that access form part of what is asserted.

Duty ? is the paper’s scope norm and its two departures from the
nearest existing norm were stated in
Section 6.1. The index is a relation rather than a
proposition, so that the same issuer may be well placed regarding a person
under one set of conditions and not at all under others. And the conditions
form part of what is asserted, so that an account satisfying
Duty ? is a component of satisfying this one rather than a
separate courtesy.

8.4 Distinguishing Conduct Reported from Disposition Inferred

The issuer must distinguish what occurred from what the occurrences are taken
to show about the person, and must mark the second as an inference drawn from
the position stated.

Two grounds support this duty and they come from the paper’s two routes.

From the mechanism: what occurred is a fact about a relation the issuer was
party to, and what it shows about a person is a claim extending beyond that
relation, which by Duty ? requires its own support.

From the principles: Section 10.1 recorded that the
breach of Principle ? admits of degree, and that the
further an account moves from occurrences toward characterisations of the
person, the more of a co-produced interpretation is appropriated by one of its
authors. A report of conduct appropriates least; a characterisation of the
person appropriates most.

The duty accordingly permits characterisation and requires that it be marked.
An issuer who writes that a candidate abandoned a project has reported conduct;
one who writes that the candidate lacks persistence has characterised a person,
and owes the reader the information that this is what has been done.

8.5 Building Contestation into the Instrument at Issuance

The issuer must provide, in the instrument itself, the means by which what it
establishes may later be questioned: what was asked, what was answered, from
what position, and how the account may be located again.

This duty follows from Principle ? and from its
simultaneity requirement. The interpretive authority is conferred by the act,
so the capacity to meet it must be generated by the act, and an appeal
available afterwards arrives after the authority has been exercised.

What the duty asks is modest and it is worth stating exactly, since the
principle behind it is strong. It leaves the issuer free of any obligation to establish a forum, to guarantee a hearing, or to undertake anything toward a future contest. It
asks that the instrument carry what a contest would need: the question the
issuer was answering, the position from which they answered, and a record that
persists. An instrument that carries none of these is not merely unappealed but
unappealable, since there is nothing for a challenge to engage.

Section 12.2 states the corresponding duty on the
receiving party, and the two together are what
Principle ? requires when it holds that the conditions of
revision must themselves be preserved.

8.6 Authorising without Observation

The issuer may not authorise an alteration in a person’s conditions on the
strength of a relation they did not stand in. Where the issuer’s access is
null, the ground of the exercise is absent, whatever the account says.

Duty ? is a special case of Duty ? and is
stated separately because the case it governs is common and is not ordinarily
regarded as a breach. Section 15 examines it, and the
statement here anticipates the finding: on an ethics of reporting the wrong is
that something false is conveyed, while on an ethics of authorising the wrong
is that a power is exercised with no ground at all, which is available even
where every sentence in the account is true.

9. Duties of the Party Who Receives a Judgment

This section states the paper’s most novel claim and the argument that makes it
necessary. The duties above bind the party who gives an account. This section
argues that a corresponding set binds the party who uses it, and that without
them the first set is worse than useless.

9.1 Establishing the Scope before Relying

Before relying on an account of a person, the receiving party must establish
its scope: the position from which it was given, the conditions under which
the conduct reported occurred, and therefore what the account warrants. An
account whose conditions of access are unstated is one whose scope cannot be
established, and it must be treated as such.

The survey underlying this paper found no existing statement of this duty, and
Section 6.3 recorded why the nearest neighbours are not
it. The hearer’s duty to monitor for untrustworthiness (Fricker, 1994) asks
whether the speaker is to be believed. The requirement of positive reasons
(Lackey, 2008) asks whether the hearer is justified in believing. Neither
asks what a statement, taken as entirely sincere and entirely competent,
warrants the hearer in doing.

The second sentence of the duty is what gives it force. Without it, an account
that omits its conditions is simply read as unrestricted, which rewards the
issuer who declares nothing. With it, the omission is a defect in the account
rather than a licence to the reader, and
Section 12.3 argues that this reversal is the
whole point.

A legal analogue exists and is instructive in its reach and in its limits.
An employer owes a duty of reasonable care in hiring persons who, because of
the employment, may pose a threat of injury to members of the public
(Anon, 1983), and the depth and scope of the inquiry required tracks the
degree of risk the position carries, so that exhaustive investigation is
required where the post exposes the public and minimal inquiry suffices where
it does not (Anon, 1992; Anon, 1982). That is a duty of inquiry on the
relying party and it is proportionate to what is at stake, which is the
structure Duty ? adopts. It is owed, however, to third parties who may be injured rather than to the person judged, and it arises independently of the reference. The law therefore gives the relying party a duty
toward strangers and none toward the person whose account they are relying on.

9.2 Preserving the Conditions of Later Revision

The receiving party must preserve what a later revision would require: the
account as given, the conditions declared with it, the accounts of other
parties, and the respects in which they diverged. Divergence resolved before
the decision is recorded, and not preserved, is not available to be revisited.

This duty follows from Principle ? and specifically from
the extension it carries: a right to revise is empty where what would be needed
to exercise it has not been kept. The receiving party is the only party in a
position to discharge it, since it is the party that holds the file.

Three observations bound the duty. It asks for preservation and not for publication, so it is compatible with
confidentiality regimes even though
Section 10.2 finds those regimes independently
objectionable. The distinction matters for a further reason: where a measure
concerning persons is made public, those measured alter their conduct in
response to being measured, so that the measure changes what it reports
(Espeland, 2007). Preservation without publication avoids that
consequence, and forgoes with it the contestation that publicity would
enable. It asks that divergence be recorded rather than resolved, which
is the requirement the preceding paper in this series argued for on
reconstructive grounds and which is reached here on ethical ones. And it is
cheap: what it asks is a note in a file that already exists, made at a moment
when the material is in front of the decision-maker.

9.3 Correlativity of the Two Sets of Duties

The argument for this section’s duties rests on something other than a claim that recipients ought also to behave well. It rests on the issuer’s duties failing without them.

A scope condition binding the issuer alone is self-defeating. An issuer who
states the conditions of access and limits the conclusions accordingly produces
an account that is weaker on its face than one that states nothing and claims
everything. Where the recipient is free to rely as they choose, the scrupulous
issuer’s account is discounted and the unscrupulous issuer’s is not, so the
duty penalises compliance.

The jural analysis of correlative positions supplies the form of the point
(Hohfeld, 1913; Hohfeld, 1917). To specify one party’s position is to specify
the other’s, and the pairing matters. The assurance view pairs the speaker’s
responsibility with the hearer’s entitlement (Moran, 2005), which is a
coherent pairing for the case it addresses. It is the wrong pairing here: an
entitlement leaves the hearer free to rely without limit, and it is that
freedom which makes the issuer’s restraint worthless.

Two consequences follow.

The first is that the duties in Section 11 should not be imposed
without those in this section. A regime that regulates issuers and leaves
recipients unconstrained produces exactly what
Claim ? predicts, and
Section 17 presents evidence that this has already occurred.

The second concerns where the paper’s principal charge lies. If the recipient
is free to treat a properly scoped account as unscoped, then the recipient
commits the error that the preceding paper in this series identified as the
central one, namely extending a warrant beyond the relation that supports it.
The issuer’s duties are about supplying what the recipient needs; the
recipient’s duties are about using it, and the second is where the failure
occurs.

9.4 Absence of a Duty Running to the Person Judged

One further asymmetry is recorded, since it bears on what the duties above can
achieve.

Every duty examined in this paper, whether professional or legal, runs to a
party other than the person judged. The professional codes run to the
profession and to those who rely on its members (Association, n.d.). The law of
references runs to the subject in one jurisdiction (Anon, 1994) and to
foreseeably injured third parties in another (Anon, 1997). The hiring duty
runs to members of the public (Anon, 1983). In no case does a duty run
from the party who uses an account to the person the account concerns.

Under Claim ? that is the wrong direction. The party whose
conditions are altered is the party to whom the primary obligation is owed, and
they are the only party with no standing anywhere in the arrangement.
Section 20 records that this paper states the duty and does not
supply the mechanism by which it would be enforced, since a duty owed to a
party who cannot see the account, was not told it was given, and has no forum
in which to raise it is a duty in name.

10. Refusal as the Act Requiring the Stronger Justification

Declining to give an account of a person is ordinarily treated as the safe
course. Nothing is asserted, so nothing can be asserted wrongly; no duty in
Section 11 is engaged; and the party who declines has, on the
received view, done nothing requiring justification at all. This section argues
that the received view follows from the misdescription identified in
Claim ?, and that on a correct description the burden of
justification falls on refusal rather than on speech.

10.1 Foreclosure Effected by Declining

If the act is the alteration of the relations available to a person, then
declining to perform it is not abstention from the alteration. Where an
institution requires accounts and a person cannot obtain one, the position is
closed to them as effectively as it would be closed by an unfavourable account,
and more reliably, since an unfavourable account may be discounted while a
missing one cannot be supplied.

Under Principle ? the relevant question is whether the
possibility of continued becoming has been preserved. A refusal that closes a
position the person could otherwise have reached forecloses in exactly the
sense the principle identifies. That the party who refused did nothing is true
of their conduct and false of its effect.

Declining to give an account, where an account is required for a position and
the person cannot obtain one elsewhere, is an exercise of the same power as
giving one. It is not abstention from the exercise.

Two limits belong with the claim and neither is small.

The claim is conditional on the account being required and unobtainable
elsewhere. Where a person has several potential issuers and one declines, the
refusal has cost them an option rather than a position, and the analysis does
not apply with the same force. Section 13.5 states what
follows.

And the claim does not hold that refusal is wrong. It holds that refusal
requires justification, which is a different matter and which the remainder of
this section develops.

10.2 Invisibility and Unappealability of a Refusal

Three features distinguish a refusal from an unfavourable account, and all
three run against the refusal.

Absence of any artefact produced by a refusal.
An unfavourable account exists. It has content, a source, and a date; it can be
examined, contested, and in principle revised. A refusal produces nothing.
Under Duty ? an instrument must carry what a contest
would need; a refusal carries nothing, and there is no object for a challenge
to engage.

Reasons withheld and explanations substituted.
An account states something, and what it states can be assessed against what
occurred. A refusal states nothing and is ordinarily accompanied by an
explanation that is not the reason: pressure of time, unfamiliarity with the
field, a policy. The person refused cannot distinguish a refusal grounded in
what the relation contained from one grounded in preference, inconvenience, or
prejudice, and neither can anyone else.

Visibility of a refusal to the person refused alone.
An unfavourable account is seen by the receiving institution, which may weigh
it, discount it, or find it inconsistent with others. A refusal is seen by
nobody. Where an institution requires three accounts and receives two, it
observes an incomplete file and not a refusal, and the party who refused does
not appear in the record at all.

Under Principle ? the authority exercised must be met by
a capacity to contest it. A refusal exercises authority and supplies nothing
that could be contested, which is a more complete failure of that principle
than any account, however damaging, can achieve.

10.3 Reluctance to Report Unfavourably

The empirical setting in which these decisions are made is documented and it
bears on the argument in both directions.

Parties are reluctant to transmit unfavourable information, a reluctance
established as a general phenomenon rather than as a feature of any particular
setting (Rosen, 1970), and shown to vary with the definiteness of the
consequences and with the relationship between the parties
(Weenig & Groenenboom, 2001). In performance rating, the variance attributable to the
individual rater substantially exceeds that attributable to the person rated
(Scullen & Mount, 2000), which is consistent with ratings reflecting the rater’s
disposition toward reporting as much as the ratee’s conduct. And those who
voice complaints against parties with power over them face documented
retaliation, in forms that depend on the relative positions of the parties
(Cortina, 2003).

Two consequences follow and they pull against each other.

The reluctance is real and its causes are creditable. An issuer who declines
rather than reporting unfavourably is responding to costs that exist: a
continuing relation damaged, a dispute invited, an attribution made. The
resulting register is uniform: of a corpus of nearly seven thousand reference
ratings, ninety-six per cent rated candidates above average and fewer than one
per cent below (Aamodt, 2006), which is what an equilibrium of this kind
produces.

But the same body of work records that silence has costs of its own, borne by
those who remain silent (Cortina, 2003), and the present section adds
that it has costs borne by the person about whom silence is kept, which that
literature does not treat.

10.4 Distribution of the Costs of Silence

The distribution is the section’s central point and it is stated plainly.

The cost of refusing falls on the issuer as the loss of nothing. They retain
the relation, avoid the dispute, and incur no attribution, since no artefact
exists to be attributed. Their position after refusing is their position
before.

The cost of being refused falls on the person judged as the loss of a position,
and it is compounded by the features of
Section 13.2: they cannot establish what the refusal
rested on, cannot contest it, and cannot show that it occurred.

Refusal is cheap for the party refusing and expensive for the person refused,
and the asymmetry is greater than that of an unfavourable account, which is
costly to both. A duty to decline assessed without regard to this distribution
is a duty designed from the position that bears no cost.

Claim ? bears on the professional codes surveyed in
Section 5.2. Those codes require an issuer to limit
conclusions where access is inadequate (Association, n.d.) and, in one
formulation, prohibit opinions about persons not examined altogether
(Association, n.d.). Read as guidance to an individual issuer, they are sound.
Read as a distribution of costs, they place the entire burden of the issuer’s
epistemic limitation on the person judged, who did not create the limitation
and cannot remedy it.

10.5 Conditions under Which Refusal Is Owed

The argument above does not hold that one must always write, and this
subsection states when refusal is owed rather than merely permitted.

An issuer must decline where the grounds required by
Duty ? are absent and cannot be supplied, and where declining
does not close a position the person cannot otherwise reach. Where the second
condition fails, the issuer owes an account limited to what the relation
afforded, together with a statement of how limited that is.

Three cases are distinguished by the duty.

Where the issuer’s access is null, as in the case of
Section 15, Duty ? governs and refusal
is required regardless of the cost, since an exercise without grounds is not
made permissible by the consequences of declining.

Where the issuer’s access is real but narrow, refusal is not owed and a limited
account is. The issuer who declines on the ground that they cannot say enough
has converted their own limitation into the person’s loss, when the alternative
was to say what they could and say how little that was.

Where the issuer’s access is real and what it affords is unfavourable, refusal
is not owed and is the more damaging course. An unfavourable account can be
answered, weighed against others, and shown to concern conditions that no
longer obtain. Silence cannot. Under
Principle ? the person judged retains standing as a party who
can speak and answer, and only an account gives them something to answer.

11. Ethics under Permanent Unverifiability

This section states the constraint within which the whole account operates and
which determines the shape it can take. It is short, and it is the paper’s
hardest claim.

11.1 Impossibility of Establishing That the Power Was Well Exercised

Where a judgment governs whether a person is admitted, outcomes are generated
only for those admitted. The performance of those excluded is never observed,
because they were not admitted, and the excluded may differ systematically from
the included on characteristics no one recorded.

The formal result is established. Outcomes are observed only for the cases a
decision-maker passed through, so a candidate decision rule cannot be evaluated
against the outcomes of cases it would have treated differently
(Lakkaraju et al., 2017).

A party exercising this power cannot establish that they exercised it well. The
evidence that would establish it is generated only for those they admitted, and
no accumulation of experience supplies the missing half. The constraint is
structural and is not remedied by care, by volume, or by time.

Two consequences are worth stating before the section draws its conclusion.

Favourable outcomes among those admitted establish nothing about the judgments,
since they are equally consistent with the judgments having been accurate and
with the judgments having opened conditions under which the outcome became
attainable.

And the absence of adverse outcomes among the excluded is not evidence, because
there are no outcomes among the excluded. An institution that has never
admitted a person of a certain description has no basis for its belief about
how such persons perform, and its confidence in that belief grows with the
length of time it has held it.

11.2 Displacement of Correctness by Conduct

An ethics for such a power cannot be an ethics of getting it right, and the
reason is not that correctness is hard to achieve. It is that correctness
cannot be established by the party required to achieve it, and a standard whose
satisfaction is in principle unknowable to the party bound by it cannot guide
them.

What remains is an ethics of conduct: not whether the exercise was correct, but
whether it was conducted in a way that a party who could not know whether it
was correct ought to conduct it. That is a familiar structure in settings where
outcomes are unavailable or arrive too late, and it is the structure the duties
of Section 11 and Section 12 already have.

Three of those duties survive the displacement without alteration, and it is
worth recording which and why.

(1) Declaring the position and the conditions of access
(Duty ?) is discharged or not at the moment of writing, and
whether it was discharged is knowable then.

(2) Restricting the assertion to what the access affords
(Duty ?) concerns the relation between what was available and
what was claimed, both of which the issuer knows.

(3) Carrying what a contest would need (Duty ?)
and preserving it (Duty ?) are requirements on the
instrument and the file, and are met or unmet on inspection.

A duty to be right, by contrast, cannot be discharged knowingly, and a party
told to satisfy it is told nothing they can act on.

11.3 Requirements That Survive the Displacement

The section closes by stating what an ethics of this shape requires, since the
list is the paper’s practical residue.

Where a power’s good exercise cannot be established, what may be required of
the party exercising it is that the basis be declared, that what is claimed not
exceed the basis, that the exercise be bounded in time, and that the party
affected be able to contest it. These are requirements on conduct and each is
satisfiable knowingly.

Claim ? explains why
Principle ? carries the weight it does in this account.
Where correctness cannot be established, the capacity to revise is not a remedy
for error but the only available substitute for knowing whether error occurred.
An interpretation that stands indefinitely does not become more likely to be
correct with the passage of time; it becomes less likely to be examined.

Section 16 examines an institution that reached a
related conclusion, and responded by restricting what such judgments may be
used for rather than by attempting to improve them.

12. An Account Signed without Observation

This section examines the case that motivated the paper’s central distinction.
It is chosen because the two ethics deliver different verdicts on it while
agreeing that it is wrong, so the case does not test whether the act is
objectionable but which description of the objection is correct.

12.1 Description of the Practice

A person asks a senior figure for an account. The reply is that the person
should draft it and the senior figure will sign; or that the person should send
a record of their work and results, from which the account will be written.

Four features are recorded and none is contested by those who engage in the
practice. The signatory has not observed the conduct the account reports, and
in the first variant has not composed the sentences. The instrument functions
as any other: it is accepted, weighed, and produces the same effect. The
parties do not regard the practice as fraudulent, and describe it as an
accommodation to the demands on senior people’s time. And the receiving
institution cannot distinguish such an instrument from any other, since nothing
in the document records how it was produced.

12.2 Assessment under an Ethics of Reporting

On an ethics of reporting the act is a species of deception, and the
identification is straightforward.

The signatory puts forward as their own a set of claims they are not in a
position to make. Under any norm of assertion the act fails: they do not know
what is asserted, are not in a position to know it, and lack reasonable belief
formed on the appropriate basis (Williamson, 1996; Lackey, 2007; Willard-Kyle, 2020).
The receiving institution is misled about the provenance of what it reads and
would weigh it differently if it knew.

The remedy this description selects is disclosure. If the wrong is that the
recipient is misled about who observed what, then the wrong is removed by
stating who observed what. An account marked as compiled from records supplied by its subject, and signed
by a party who did not observe the conduct, would misdescribe nothing. On this
description the practice would then be unobjectionable.

An adjacent finding cautions against expecting much of disclosure. Where
conflicts of interest were disclosed, advisers gave more distorted advice and
recipients failed to discount sufficiently, so that disclosure worsened
outcomes for those it was intended to protect (Cain & Loewenstein, 2005). The finding
concerns advice rather than accounts of persons, and it indicates that a remedy
resting on disclosure carries a burden of proof rather than being obviously
sufficient.

12.3 Assessment under an Ethics of Authorising

On the description defended in Section 8 the act is something
else, and the difference is visible precisely in the disclosed case.

What the instrument does is alter the relations available to the person it
concerns. Under Duty ? an exercise of that power must rest on
something the party exercising has established, and under
Duty ? the ground of this exercise is the relation the
issuer stood in. Where there is no such relation the ground is absent, and the
exercise proceeds on nothing.

The wrong on this description is not that the recipient is misled. It is that a
power over a person’s conditions is exercised by a party who has no basis for
exercising it, and disclosure does not remedy this. An account marked as
compiled from records and signed by a non-observer is a fully disclosed
exercise of power without grounds. Every party knows what is happening, and
what is happening is that a person’s field is being altered by someone with no
warrant to alter it.

The remedy this description selects is therefore not disclosure but abstention,
and Duty ? states it as such.

12.4 Convergence and Divergence of the Two Assessments

The two descriptions agree that the practice is objectionable and disagree
about what is objectionable, and the disagreement is not verbal, since the
remedies differ.

Under an ethics of reporting the defect is in the provenance of the account and
is cured by disclosing it. Under an ethics of authorising the defect is in the
absence of grounds for the exercise and is not cured by disclosure. The
disclosed case therefore separates the two descriptions, and on the second it
remains a wrong.

One objection must be met and it comes from the literature surveyed in
Section 6.6. It has been argued that there is no general
moral difference between lying and merely misleading (Saul, 2012), and a
reader may extend the point: if the distinction between saying something false
and conveying it without saying it carries no moral weight, perhaps the
distinction between misdescribing a relation and authorising without one
carries none either.

The reply is that the two distinctions are not of the same kind. The
lying-and-misleading distinction concerns two ways of bringing about the same
result, namely a false belief in the hearer, and the argument that they are on
a par is an argument about routes to one outcome. The present distinction
concerns two different results: a recipient misled, and a person’s conditions
altered without warrant. Claim ? does not rest on a
difference between ways of misleading; it rests on there being a wrong that
persists when nobody is misled at all.

Two further consequences are recorded.

The practice is more common than an ethics of reporting predicts, and the
authorising description explains why. Those who engage in it are not deceiving
anyone in their own understanding: the requesting party often knows, the
candidate certainly knows, and the receiving institution’s ignorance is
incidental rather than the point. What is being traded is the authorisation,
and the account is the form the authorisation takes.

And the practice is a limiting case rather than an anomaly. If what such
instruments do is authorise, then every account lies somewhere on a range
between one fully grounded in a relation and one with no relation behind it,
and Duty ? exists so that a recipient can tell where on that
range a given account lies.

13. Restriction of Use in the Law of Evidence

An institution has already faced this paper’s problem and responded to it. This
section examines that response, because it is a precedent for the shape of the
remedy rather than an illustration of the difficulty.

13.1 Exclusion of Character Evidence to Prove Conduct

The rules of evidence in one system provide that evidence of a person’s
character or character trait is not admissible to prove that on a particular
occasion the person acted in accordance with the character or trait
(Evidence et al., n.d.). Evidence of other acts is likewise inadmissible to show that a
person acted in accordance with a propensity, though admissible for purposes
that do not run through propensity, such as motive, opportunity, intent,
preparation, plan, knowledge, or identity (Evidence et al., n.d.). Where character is
admissible, the method of proof is ordinarily reputation or opinion rather than
specific instances (Evidence & States, n.d.), and attacks on a witness’s credibility are
confined to character for truthfulness and generally exclude extrinsic evidence
of particular acts (Evidence & States, n.d.).

The structure is a restriction on use. The evidence is not said to be
unavailable, nor its makers to be unreliable, nor its accuracy to be
improvable. It is admissible for some purposes and inadmissible for one.

13.2 Rationale Given for the Exclusion

The reason given is recorded in the drafting commentary and it is close to this
paper’s own. Character evidence is said to be of slight probative value and
capable of great prejudice; to distract the trier of fact from the question of
what actually happened on the particular occasion; and to permit the trier
subtly to reward the good man and punish the bad because of their respective
characters, despite what the evidence shows about the occasion
(Evidence et al., n.d.).

Three elements of that rationale bear on the present account.

The complaint is about inference from a general judgment to a particular
occasion, which is the inference Duty ? requires to be marked
and which the preceding paper in this series identified as an error about
scope rather than about accuracy.

The complaint is about displacement: the general judgment does not
merely add little, it draws attention from the question at issue.

And the complaint concerns the person rather than the act, in the
observation that such evidence permits reward and punishment of persons for
being what they are.

13.3 Restriction of Use as an Alternative to Improvement of Accuracy

The response is the feature this paper takes.

Faced with a form of evidence about persons that is weakly probative,
prejudicial, and difficult to evaluate, the system did not require that such
judgments be better made, that those who give them be trained, or that their
reliability be established. It restricted what they may be used to prove.

Restricting the use of a judgment of a person is an available and established
response to the difficulties this paper identifies, and it is a response that
does not require the judgment to be improved. It is therefore available where,
by Claim ?, improvement cannot be verified.

Claim ? supports Duty ? directly. A duty
on the receiving party to establish what an account warrants before relying on
it is a restriction on use, imposed by the party who would otherwise rely
without limit, and the law of evidence shows that restrictions of this shape
are workable and enforceable.

13.4 Limits of the Analogy

Three limits are recorded and the third is substantial.

The setting differs. A trial has an adjudicator, an adversary, and rules of
exclusion enforced by a party with power to exclude. Selection has none of
these, and Section 18 treats the question of who would
enforce the duties proposed here.

The purposes differ. The rules govern proof of what a person did on an
occasion; selection concerns what a person is likely to do in a setting they
have not yet entered, which is a prediction rather than a finding, and the
propensity inference that the rules exclude is what selection is for.

And the restriction is contested in its application. Commentary on the
operation of the exception for non-propensity purposes reports that it is
applied unpredictably and that propensity reasoning re-enters through it. The
paper takes the rules as a precedent for the shape of a remedy and not as
evidence that remedies of that shape succeed.

14. Evidence That Duties on Issuers Suppress Disclosure

This section states the principal argument against the paper’s proposals. It is
given its own section because the evidence is real, because it concerns exactly
the intervention the paper recommends, and because the reply is also the paper’s
best argument for its central claim.

14.1 Liability of the Issuer in the Law of References

The duties described in Section 5.2 were imposed by
courts over the objection that they would deter the giving of references. In
the leading case establishing a duty of care owed by a referee to the subject,
the objection was made in dissent (Anon, 1994); and in the decision
holding a recommender liable for an unreservedly favourable account given
despite knowledge of serious complaints, the court acknowledged the concern
that broader liability might inhibit the giving of references and subordinated
it to the protection of foreseeable victims of physical harm
(Anon, 1997).

14.2 Withdrawal from Disclosure

What followed is the difficulty. Legislative findings supporting model
legislation to immunise employment references record that recent court
decisions had a substantial chilling effect on employers providing good-faith
factual information about employees, and cite a survey from 1995 reporting that
sixty-three per cent of responding employers would no longer give information
about a former employee for fear of a lawsuit. The figure is reported here as
it is reported there: a survey of that date, cited in the findings of a body
advocating the immunity, and not a statistic this paper has independently
verified.

The associated practice is described in the professional and legal literature
as a retreat to confirming dates of employment and job title. Whatever the
precise magnitude, the direction is what matters for this paper: duties were
imposed on those who give accounts, and the reported response was withdrawal
from giving them.

If that is what duties on issuers produce, the proposals in
Section 11 would produce more of it, and
Section 13 would then be arguing against a consequence the
paper’s own recommendations create.

14.3 Contested Status of the Chilling Argument

The first reply is that the chilling argument is weaker than its currency
suggests, and this is established rather than asserted.

An examination of how the chilling effect functions as a justification in
speech law concludes that, although the effect may be a real concern, it is
unsatisfactory as a ground for the rules it is used to support: the empirical
assumptions on which it rests have little demonstrable basis, and where such
assumptions are the primary or sole justification for a rule, the legitimacy of
the rule is itself in question (Kendrick, 2013). The same treatment surveys
the kinds of evidence adduced for chilling, including litigation data,
quantitative comparisons, interviews and surveys, and economic models, and
examines the limits of empirical inquiry into the phenomenon.

This bears on the figure in
Section 17.2 in a specific way. That figure is an
interview-and-survey datum reported by an advocacy body in support of a
legislative proposal, which is the weakest of the categories that treatment
examines, and it is a report of what employers say they would do rather than an
observation of what they did.

14.4 Reply from the Correlative Duty on the Recipient

The second reply is the paper’s own and it is the reason
Section 12 exists.

What was imposed in the cases described was liability for the content of
accounts, without any corresponding constraint on how accounts are used. Under
Claim ? that arrangement is self-defeating in a specific
way: an issuer who states less is exposed to less liability and produces an
account that a recipient, free to rely as they choose, discounts. The
issuer therefore faces a choice between exposure and uselessness, and
withdrawal is the rational response to that choice.

The withdrawal from disclosure is what
Claim ? predicts of a regime that binds issuers and
leaves recipients unconstrained. It is evidence for the correlativity claim
rather than against the duties, and it is evidence against imposing the
issuer’s duties alone.

Two features of the paper’s proposals distinguish them from what was imposed
and are stated here rather than assumed.

The duties in Section 11 are requirements on content and on
form: state the position, restrict the claim to what the access affords, mark
inference as inference. They are not additional grounds of liability, and an
account satisfying them is not thereby more exposed than one that does not.

And Duty ? removes the incentive that produces withdrawal.
Where an account whose conditions are unstated is treated as one whose scope
cannot be established, the scrupulous issuer’s limited account is worth more to
the person judged than the unscrupulous issuer’s unlimited one, and the choice
between exposure and uselessness does not arise.

Claim ? is offered as a diagnosis and not as a prediction of
success. Whether a regime of correlative duties would in fact avoid the
withdrawal has not been tested, no jurisdiction has attempted it, and
Section 20 records this as the largest untested element of the
account.

15. Institutional Bearing of the Duties Proposed

The duties stated in Section 11 and
Section 12 have so far been addressed to parties. This section
argues that parties are the wrong bearers, that the evidence requires the
argument, and that the duties must be carried by instruments and procedures
instead.

15.1 Evidence on Whether Codes Alter Conduct

A paper that ends by stating duties invites the question whether stating them
changes anything, and the available evidence is unfavourable.

A meta-analytic treatment of the sources of unethical decisions at work
reports that the mere existence of a code of conduct bears weakly on such
decisions, and that effects appear where codes are embedded in the practices
and culture of an organisation and enforced, rather than where they are
promulgated (Kish-Gephart & Harrison, 2010). An experimental study of a professional
code in one field found no measurable effect on practitioners’ decisions when
the code was made salient (McNamara & Smith, 2018).

The finding concerns what makes codes effective rather than showing them pointless. It is that the causal work is done
by embedding and enforcement, and that a code standing alone leaves it undone.

Two consequences follow for this paper and neither is comfortable.

The duties in Section 11 would, if promulgated as guidance to
individual issuers, be predicted by this evidence to change little. The
existing codes surveyed in Section 5.2 are already
promulgated, already state most of Duty ? and
Duty ?, and the practice examined in
Section 15 persists alongside them.

And the same evidence bears on Section 17. What was effective
in altering the behaviour of issuers was not a code but liability, and what it
produced was withdrawal. The one intervention shown to change conduct changed
it in the direction the paper wishes to avoid.

15.2 Institutional Rather Than Individual Bearers

The response is to relocate the duties.

The duties stated in this paper are discharged by institutions and not by
individuals. What an individual issuer or recipient can do is constrained by the instrument they are given and the procedure they work within, and a duty requiring them to act against both remains undischarged however clearly it is stated.

Three considerations support Claim ?, and the first is
the strongest.

(1) The duties concern the conditions of an exchange that neither party
sets. Whether an account states the conditions of access depends on whether it
is asked for them. Whether divergence among accounts is preserved depends on
whether the file has a place to record it. Whether the person judged knows an
account was given depends on whether the procedure tells them. In each case the
party bound by the duty is not the party who determines whether discharging it
is possible.

(2) The correlativity argument requires simultaneous imposition. Under
Claim ? the issuer’s duties and the recipient’s must be
imposed together or the first penalises compliance. Simultaneous imposition on
two parties who do not deal with each other directly, and who often belong to
different institutions, is something only an arrangement governing the exchange
can achieve.

(3) An institution can bear a duty of inquiry that an individual cannot
discharge. The legal analogue in
Section 12.1 is instructive: the duty of reasonable
inquiry in hiring is imposed on the employer, is proportioned to the risk the
position carries, and is discharged through procedures rather than through the diligence of whoever
happens to read the file
(Anon, 1983; Anon, 1992), resting on the principle that a principal is
subject to liability for harm resulting from a failure to exercise care in the
employment of others (Anon, 1958).

The wider warrant for constraining decision-makers in this way has been
defended directly. Institutions may be justified in constraining what an
inquirer may consider, for the sake of the inquiry itself and without the
inquirer’s consent, and rules of evidence are advanced as an instance of such a
constraint that is justified (Ahlstrom-Vij, 2013). That is the form the
present proposal takes: the receiving institution constrains what its own
decision-makers may rely on and how, which is a constraint the decision-maker
could not impose on themselves.

15.3 Design of Instruments That Carry the Duties

If the duties are borne by instruments, then the paper’s practical content is a
specification of instruments, and this subsection states it. Nothing here
requires an issuer or a recipient to be more scrupulous than they are.

The request carries the scope question.
Duty ? and Duty ? are discharged by an
instrument that asks for the position, the period, the conditions under which
the conduct occurred, and the respects in which the issuer’s view was partial.
An issuer answering the questions asked discharges the duties without adopting any disposition; an issuer left unasked will rarely volunteer them.

The form separates conduct from characterisation.
Duty ? is discharged by an instrument whose questions
distinguish what occurred from what it is taken to show. This is the structural
device the assessment literature already uses, and it converts a duty on the
issuer’s judgment into a property of the form.

The record carries what a contest would need.
Duty ? and Duty ? are discharged by
retaining the account as given, the questions it answered, the accounts of
other parties, and the respects in which they diverged. The requirement is on
the file rather than on either party’s conduct, and
Section 12.2 recorded that it is cheap.

The procedure fixes what an unscoped account is worth.
Duty ? is discharged by a rule, adopted by the receiving
institution, that an account whose conditions of access are unstated is treated
as one whose scope cannot be established. This is the single most consequential
item in the specification, because it is what removes the incentive identified
in Section 17.4: where the rule holds, the issuer who
declares little produces an account worth little, and the issuer who declares
much is not penalised for candour.

The procedure informs the person judged that an account was given.
Nothing in Section 11 or Section 12 can be enforced by a party kept ignorant that the exercise occurred. This is the minimum condition of the duty running to the
person judged that Section 12.4 found nowhere imposed,
and it is stated here as a requirement on procedure because no other party is
positioned to supply it.

Elements absent from the specification.
It supplies no forum. A person informed that an account was given, holding the conditions under which it was given, and knowing that the record persists, has what a contest would require and nowhere to bring it.
Section 20 records this as the largest gap between what the paper
argues and what it delivers, and the question of who should hold authority to
determine such a contest belongs to the jurisprudence paper in this series.

16. Implications for the Generative Relational Framework

Four results return to the framework and two of them are corrections.

16.1 An Ethics of Acts That Alter Another’s Field

The framework’s ethical principles govern acts that reproduce shared
experience, and have been applied to relations in which the parties continue to
deal with one another. This paper applies them to an act performed about a
relation, by one of its parties, to a third party who was not in it.

Two features of that application should be carried forward. The principles hold
in it: each yielded the results of Section 10 unmodified. And the act it governs is a class the framework
has not identified, namely acts by which a party to one relation alters the
conditions obtaining in another. Recommendation, endorsement, certification and
clinical handover are members of the class.

16.2 Simultaneity as a Requirement on Counter-Power

Principle ? was stated in this paper with an emphasis the
framework had left implicit: that the capacity to contest must be generated at
the moment the authority is conferred, and not supplied afterwards.

The ground for the emphasis is that the authority is conferred by the act
itself. Where an institution supplies a channel of appeal later, the appeal
engages an authority already exercised and effects already propagated, and the
principle’s purpose of preventing history from freezing is served late or not
at all. Section 11.5 showed that the requirement is
modest in what it asks of an issuer and demanding in what it implies about
instruments, which is a general shape the framework should expect where
simultaneity is required.

16.3 The Conditions of Revisability as Part of the Requirement

Principle ? was likewise stated with an addition: that
the conditions under which revision is possible must themselves be preserved,
since a right to revise is empty where what would be needed to exercise it has
been discarded.

This converts the principle from a permission into a duty with a bearer. A right to reopen lies dormant until exercised; a requirement
that the record, the divergent accounts, and the conditions declared with them
be preserved imposes something on whoever holds the file, continuously, before
anyone has asked. Section 12.2 states it as
Duty ?, and the framework should carry the general form:
wherever it requires revisability, it requires the maintenance of what revision
would consume.

16.4 Limits of the Framework Where Correctness Cannot Be Established

The fourth result is a constraint the framework should adopt.

Claim ? holds that a party exercising this power cannot
establish that they exercised it well, because the evidence is generated only
for those they admitted. Where that holds, the framework’s normative apparatus
cannot be applied through outcomes. Judgments about whether generativity was
preserved, whether a subject was eliminated, or whether foreclosure occurred
must be made on the conduct of the exercise and on the conditions it left in
place, and not on what became of the people affected. That restriction follows from the evidence rather than from caution.

The framework has tended to state its principles in terms of what an act
achieves. This case indicates that where achievement is unobservable, the
principles must be stated in terms of what an act does and leaves, and
Claim ? states the four requirements that survive the
restatement.

17. Limits of the Account

17.1 Dependence of the Results on the Two Routes

Section 7.1 argued the duties twice from independent
premises, and this subsection records which results depend on which.

Reached by both routes, and therefore surviving the rejection of either:
Duty ?, Duty ?, Duty ?,
Duty ?, Duty ?,
Claim ?, and Claim ?.

Reached only from the framework’s principles:
Claim ?, that the practice is in breach at the point of
production regardless of content, and the finding in
Section 10.2 that confidentiality eliminates the
person judged as a subject. A reader who accepts the account of the act as an
exercise of power but rejects the principles obtains the duties without these
two.

Reached only from the account of the act:
Claim ? and the treatment of the signed blank in
Section 15.3. A reader who accepts the principles
but rejects the authorisation finding retains
Claim ? and loses the divergence result.

17.2 Conditions of Falsification

Section 7.3 stated five conditions and their
status is as follows.

The scope norm’s distinction from an access-indexed norm already in the
literature (Willard-Kyle, 2020) rests on two additions stated in
Section 11.3 and argued rather than demonstrated. If either
collapses, Duty ? is an application rather than a contribution.
This is the paper’s principal exposure in the philosophy of assertion.

Whether a duty on the issuer alone can produce the intended restraint is
untested. Claim ? is a structural argument supported by
one body of reported evidence (Kendrick, 2013), and that evidence concerns
liability rather than the content duties this paper proposes.

Whether refusal leaves a person’s field unchanged is untested, and is treated here as governed by the conditional in Claim ?. The
conditional’s antecedent, that the account is required and unobtainable
elsewhere, is an empirical matter that varies by field and has not been
established for any.

Whether the good exercise of this power can be established after the fact is
answered negatively by an established formal result
(Lakkaraju et al., 2017), and this is the condition the paper meets most securely.

And whether the duties proposed would worsen what they govern is the condition
the paper is most exposed on. Section 17 treats the evidence
that an earlier intervention produced withdrawal from disclosure, and
Section 18 treats the evidence that codes without
enforcement change little. The reply in each case is argued and untested.

17.3 Claims Advanced Without Support

Three claims rest on argument alone.

Claim ?, on the asymmetric distribution of the costs of
silence, is developed from the structure of the situation. The literature relied on documents the costs borne by those who remain silent (Cortina, 2003) and leaves untreated the costs borne by the person about whom silence is kept.

Claim ?, that the two ethics select different remedies, rests
on the disclosed case and on the reply to the objection from the parity of
lying and misleading (Saul, 2012). It has no empirical support and belongs to a kind of claim that admits of none.

And the specification in
Section 18.3 has not been implemented anywhere, so
its feasibility, its cost, and its effects are unknown.

17.4 Absence of a Forum

The largest gap between what the paper argues and what it delivers is stated
here rather than left to be inferred.

The paper argues that the primary obligation runs to the person judged
(Claim ?), that they must be able to contest what was
established (Principle ?), and that the conditions of
contest must be preserved (Duty ?). It supplies no forum
in which a contest could be brought, no account of who should determine it, and
no remedy that would follow from determining it.

Section 12.4 recorded that no duty in any of the codes
or legal doctrines examined runs from the party who uses an account to the
person it concerns. A duty stated without a bearer able to be held to it, and without a forum in which the holder of the correlative right can raise it, remains a duty in name. The paper states the duty because the analysis yields it, and records that the institution the duty would require remains undelivered. Who
holds authority to determine such a contest is the subject of the jurisprudence
paper in this series.

17.5 Sources Not Yet Verified

This draft cites only sources verified against a publisher, journal, index, or
institutional page before the section using them was written, and several
literatures are consequently represented thinly.

The evidence on withdrawal from disclosure rests on a figure reported in the
legislative findings of a body advocating an immunity, and the paper attributes
it as such in Section 17.2 rather than treating it as
established. A primary source has not been located.

The philosophy of silence and concealment is absent from
Section 13, which develops its argument from the structure of
the situation and from the empirical literature on reluctance rather than from
the ethical literature on withholding.

Professional codes beyond those of one discipline are absent from
Section 18, which weakens the claim that the pattern
identified there is general.

And the treatment of testimonial injustice is deliberately absent, since it
belongs to the paper on distribution in this series, with the consequence that
Section 13.4 states an asymmetry of costs without
connecting it to the distribution of credibility that would explain part of it.

17.6 Extensions

Four extensions are identified and none is attempted.

A trial of the specification in
Section 18.3 in a single institution would establish
whether requesting the conditions of access changes what issuers write, and is
the cheapest test of the paper’s central proposal.

An empirical treatment of Claim ? would establish how often
refusals close positions rather than costing options, which the conditional in
that claim leaves open.

A design for a forum, addressing the gap in
Section 20.4, is what the paper’s own argument requires and
does not supply.

And an account of the duties owed where the judging party is not a person is
absent. Where an instrument scores or ranks persons without a party who stood
in any relation to them, Duty ? has no addressee, and whether
the remaining duties survive that absence is unexamined.

18. Conclusion

Someone who has worked with a person is asked what they are like, by a party
that will decide something about them. This paper has argued that the ethics
usually brought to that request is addressed to the wrong act.

Norms of assertion govern saying. The act at issue does something else: it
opens or closes the relations available to the person it concerns, which is why
an account signed by someone who observed nothing still works. What follows is
that the duties governing it are those of an actor exercising discretionary
power over another’s conditions, and that the obligation runs primarily to the
person judged, who is absent from the transaction and does not consent to it.
The party who asked is owed a justification, and is owed it because they will
exercise the power jointly.

The framework’s own principles yield the same duties by a different route and
one result besides. An account of a person is an act reproducing shared
experience, and the principles governing such acts hold 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 and that they hold a claim over the conditions of its production,
that the authority conferred by the act be met by a capacity to contest it
generated at the same moment, that the other survive as a subject, and that no
interpretation become historically irreversible, which requires that the
conditions of revision be kept and not merely permitted.

Applied to the practice, these hold that an ordinary confidential reference is
in breach at the point of production and not in virtue of anything it says;
that confidentiality eliminates the person judged as a subject in the very
relation whose product is reported; that they have no say in the conditions
under which the account of their own shared past is produced; and that
foreclosing a person’s field is a graver wrong than describing them
inaccurately, which inverts the ordering an ethics of assertion imposes without
argument.

Two of the paper’s conclusions run against received practice. Refusing to write
is treated as the safe course and is the act requiring the stronger
justification: it forecloses as effectively as an unfavourable account, leaves
no artefact for a challenge to engage, gives reasons that are not the reasons,
is invisible to everyone but the person refused, and is cheap for the party
refusing while expensive for the person refused. And the duties bind the party
who uses an account as well as the party who gives one. A restraint on the
issuer alone produces an account weaker on its face than one claiming
everything, so where the recipient may rely as they choose the duty penalises
compliance. Where duties were imposed on issuers and none on recipients, the
reported response was withdrawal from disclosure, and this paper reads that as
evidence for the correlativity claim rather than against the duties.

The shape an ethics of this act can take is constrained by something that
cannot be remedied. Those excluded by such judgments are never observed, so the
party exercising the power cannot establish that they exercised it well, and no
accumulation of experience supplies the missing half. An ethics of correctness
is therefore unavailable to them. What remains is an ethics of conduct:
declare the basis, claim no more than the basis supports, bound the exercise in
time, and leave the person affected able to contest it. Each is satisfiable knowingly, which a duty to be right can never be. The law of evidence reached a
related conclusion long ago and responded by restricting what judgments of
persons may be used to prove rather than by attempting to improve them.

What the paper does not supply is recorded. It states duties that would have to be borne by institutions rather than by individuals, since the evidence indicates that codes addressed to individuals change little. It specifies instruments that
would carry them and has tested none. And it argues that the person judged is
owed a duty by the party who relies on an account of them, while supplying no
forum in which that duty could be raised. A person who knows an account was
given, holds the conditions under which it was given, and knows the record
persists has what a contest would require and nowhere to bring it.

Acknowledgments

The present definitions, constructions, arguments, conclusions, and errors
remain the author’s responsibility. The principle stated in
Section 9.3 carries an inheritance identified
there. The interest arising from the author’s own position with respect to the
procedures examined is declared in the front matter.

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