Normative Stereotypes in Legal Rulings. A Conceptual Survey

Abstract

Judges are often required to avoid or prevent the negative effects of stereotypes. The author claims that to understand this requirement it is indispensable to note that the usage of "stereotype" is not always homogenous. The use is descriptive when it ascribes a property to the members of a group on the mere basis of their belonging to the group. The use is normative when it ascribes a duty to the members of a group on the mere basis of their belonging to the group. In this work the author proposes to distinguish between descriptive and normative stereotypes on the basis of their direction of fit. Likewise, the author offers a conceptual analysis of normative stereotypes based on the ideas of conventionality and constitutivity. Finally, the paper introduces some criteria of relevance in order to determine whether the use of a normative stereotype is prohibited or mandatory.