The Pragmatics of Stereotypes in Legal Decision-Making

Abstract

Shared categories are a key element of legal decision-making within the context of interpretation. However, in this domain we often require judges to avoid or contrast the negative effects of a problematic kind of social categorization: stereotypes. Still, it is not easy to specify on which basis a stereotype is legally relevant and, as a consequence, it is not easy to determine the scope of the requirement. The author claims these difficulties arise because the term "stereotype" has heterogenic uses. On the one hand, some stereotypes purport to offer information about the characteristics of a group and of each one of its members (descriptive stereotypes). On the other hand, some stereotypes define and constitute the roles members of a category or social group should assume (normative stereotypes). The author also claims that given this distinction it is necessary to fine-tune the criteria of relevance. In particular, normative stereotypes play a fundamental role in the construction of identities and that is the reason why it is not justified to embrace a thesis rejecting them in general. In this sense the author proposes to distinguish between internally and externally conventional normative stereotypes.