Notwithstanding how difficult it is to be explained in a reasonable and efficient manner, the presence of stereotypes in the application of law is a concrete, daily experience.
To verify this, ask a criminal, in any country, whether the law is correctly applied without stereotypes. Their answer would be certainly not, as they know how fine the line is between guilty and innocent.
Let’s look again at that question. Its object is the presence of stereotypes in the application of law and not their presence in the law itself. While the answer to the first question could be variable and dependent on culture and on the juridical system, the answer to the second question is basically common in its tantamount meaning.
Therefore, stereotypes in the application of law are frequent and many examples can demonstrate it.
Take for instance criminal law. Compelled by the need to repress violence and rule consequence of fact that is hard to be proved, legislators the world over can differentiate sanctions on the basis of the quality of the person who commits the crime or the place where the crime is committed.
Generally, in the sector of criminal law, the sanctions are increased by law itself, if many criminal actions are committed by certain members of society, who, according to the legislator, are considered to be more prone to commit such on account of their peculiarities. In these cases, presumptions are made based on stereotypes, even if the presumptions are not conclusive.
Then there is litigation. In legal systems where the principle of orality is fundamental in the process, a particular behaviour before the Court could be relevant for the imposition of one or the other sanction. Even in civil law, where generally the dispute is based on, and solvable through, a documentary basis, stereotypes may have an impact.
Mediation or negotiation are examples, as either the judge or the other party is called to evaluate the level of acceptance of a proposal; there is a natural and indirect use of stereotypes that may affect the decision in the judge’s evaluation.
Stereotypes may also interfere with the law with regards to artificial intelligence. All over the world, and especially in China, artificial intelligence is a new and powerful tool, at the service of a lot of sectors, such as machinery, technology and, last but not least, law.
In this regard, artificial intelligence has been used to verify breaches of law, such as infringement to the rules of the road.
However, considering that artificial intelligence, intended as machine learning, is “bio-inspired” and “bio-oriented”, as in all facets of life, it could be influenced by stereotypes, due to the fact the algorithm is programmed by human mind.
Hence, it is evident that the risks of prejudices due to stereotypes can be always a threat to the correct application of law. A possible solution so as to limit stereotypes in such is looking to other juridical systems (the so-called “comparative analysis”) in order to verify that a determined clause is not the result of a misrepresentation of reality or a restrictive vision of public order, but rather that of a shared, strictly logical decision.
All things considered, we shall come to the conclusion that, maybe, a little component of stereotypes in law is not eliminable at all, as they are part of human nature and law is nothing else than a fact reflecting the strengths and weakness of human nature.