Profiles, Probabilities, and Stereotypes

by Frederick Schauer

This book employs a careful, rigorous, yet lively approach to the timely question of whether we can justly generalize about members of a group on the basis of statistical tendencies of that group. For instance, should a military academy exclude women because, on average, women are more sensitive to hazing than men? Should airlines force all pilots to retire at age sixty, even though most pilots at that age have excellent vision? Can all pit bulls be banned because of the aggressive characteristics of the breed? And, most controversially, should government and law enforcement use racial and ethnic profiling as a tool to fight crime and terrorism?

Frederick Schauer strives to analyze and resolve these prickly questions. When the law “thinks like an actuary”―makes decisions about groups based on averages―the public benefit can be enormous. On the other hand, profiling and stereotyping may lead to injustice. And many stereotypes are self-fulfilling, while others are simply spurious. How, then, can we decide which stereotypes are accurate, which are distortions, which can be applied fairly, and which will result in unfair stigmatization?

These decisions must rely not only on statistical and empirical accuracy, but also on morality. Even statistically sound generalizations may sometimes have to yield to the demands of justice. But broad judgments are not always or even usually immoral, and we should not always dismiss them because of an instinctive aversion to stereotypes. As Schauer argues, there is good profiling and bad profiling. If we can effectively determine which is which, we stand to gain, not lose, a measure of justice.

Genres: Politics, Philosophy

384 pages, Paperback

First published January 1, 2003

About the author

Frederick Franklin Schauer was an American legal scholar who served as David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law. He was also the Frank Stanton Professor of the First Amendment at Harvard University's Kennedy School of Government. He was well known for his work on American constitutional law, free speech, and on legal reasoning, especially the nature and value of legal formalism.

Reviews

[Trevor · Rating 4 out of 5]

I had this horrible feeling this was going to be shite – but it turned out to be really very interesting. Part of what I’m doing my thesis on concerns how social stereotyping of certain groups – by gender, race or class – impacts on how they are represented in school marketing materials. The problem with such stereotyping is that it can have a negative impact on the options that become available for certain groups of people (girls don’t do maths, say) and these can become self-fulfilling as they become the ‘common sense’ view of the world held by everyone, including those disadvantaged by these very stereotype.

Anyway, this book starts off by saying that stereotypes have been much maligned. Hmm. Pretty much the opposite of what I am arguing – don’t you hate that?

This is a much more nuanced argument than I'm making it sound or what might be taken as: people tend to fit the stereotypes they have been slotted into, so it saves time to just assume that stereotype is true until proven otherwise and get on with life – which is an argument one could use, and one we probably even do use more or less unconsciously much of the time. This book in fact argues that the call to ‘never make generalisations’ should be treated with contempt – we simply couldn’t live our lives without making generalisations. The point is to be prepared to understand the consequences of those generalisations and to weigh up if the consequences outweigh the benefits. This book looks very much at the legal implications of stereotyping – something I’d never really considered before.

So, lets start by looking at a less than contentious stereotype our society has and what that has to say. Take the fact that in Australia before the age of 18 no one is allowed to vote and after that age everyone is expected to vote. What is so magical about 18? What about a highly politically involved, interested and knowledgeable 17 year old who is denied a vote. What about the people, bloody millions of the bastards, who voted for Tony Abbott? What rational society could ever allow them to vote again? Such rules about who can and can't vote make generalisations – or stereotypes – and yet we all know that some people do not fit those stereotypes, even though we also know they must abide by the rules anyway. There are certainly lots of 16 year olds I would be more than happy with giving the vote – and not just because I think they can be relied on to ‘vote the right way’ – but because they have a deep interest and therefore are likely to vote in a way that is more worthwhile than someone with no interest at all how does a donkey vote and goes on with their weekend. Our society has a stereotype based on age – admittedly, one that many people are all too willing to fit – and we have decided that it is easier to live by that stereotype – however unfairly it treats some people – rather than to try to find way to make exceptions.

And this is the interesting paradox that is created. We all want to be treated as ‘particular’ examples. My favourite current example is that here in Victoria (and with Barry Humphries I can say that I’m not only an Australia, but also a Victorian) we are about to have an election and part of that election has the right wing party that is in power about to be humiliated in a crushing defeat - and so they are turning to ‘law and order’ issues (there’s a surprise, aye?). Interestingly, the party most likely to scream about ‘personal liberty’ is proposing ‘mandatory sentencing’ for anyone that is found guilty of a ‘coward’s punch’ – that is, what is otherwise called in Australia a ‘king hit’ – a single punch that drops the person on the receiving end to the ground out cold. We’ve had a string of such incidents that have ended the lives of people, lots of them young and entirely innocent people. It is clearly something that needs to stop. But, the issue is that by calling for mandatory sentencing - they are also saying you will be put in gaol for ten years if found guilty – means applying a single generalisation to a series of individually different cases and saying they are all identical. It is to say that there is no set of circumstances in which a single punch resulting in someone falling to the ground and potentially dying (I believe in the proposal the actual death of the person isn’t relevant) that should never be punished with anything less or other than a decade in prison. That a judge, hearing the evidence of any particular case, can not be trusted to decide on a punishment other than that mandated by someone with no knowledge of those particulars. That there are, in fact, no particular circumstances ever which could in any way be relevant to reducing the sentence for someone guilty of such an act. I really struggle with that idea. As much as I loath the idea of people doing this to other people – the idea that you can’t imagine a case where there may be some mitigation, a case where justice would not be served by such a sentence, just shows a lack of imagination on your part, not at all the justice of mandatory sentencing.

But this is not really as simple as I’ve made it sound. The other side can be equally persuasive. As we can see in Ferguson – and I remember when the kinds of images flowing daily from there were only able to be seen in history books, wasn’t that a nice time? We should try to get back to that time – the issue may not be the law, as written down, but how it is applied according to profiling, stereotypes and the benefits that come from white privilege. The ability to apply laws according to the particular circumstances of a case needs to take into account the very, very real dangers of the ‘decider’ having prejudiced criteria for their differential application of the law. This isn’t a theoretical problem – it is deeply endemic to the whole of our society, so much so that our primary assumption should be that we are being unfair to particularly groups, whether we realise it or not, and seek to find out how, rather than automatically assuming we are being entirely fair.

This book starts by saying that it wants to ‘challenge the primacy of the particular’ – but I don’t think it really does want to do that at all – what it really wants to do is to force us to think through the implications of when we make general cases and when we choose to make particular ones – that is, to question what are the flow on effects of those choices and what those flow on effects are – and to worry about the impacts of making one case general and another particular. It doesn’t say there are simple answers, and so it gives us reason to pause when people assert that they have an answer that is simple and all inclusive. We need general solutions, we need particular solutions – so being able to defend when you are prepared to accept the limitations of one over the limitations of the other (because they always each come with limitations) is what is at stake here.