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      The myth of objectivity: implicit racial bias and the law (Part 1)

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          Abstract

          The centrality of race to our history and the substantial racial inequalities that continue to pervade society ensure that "race" remains an extraordinarily salient and meaningful social category. Explicit racial prejudice, however, is only part of the problem. Equally important - and likely more pervasive - is the phenomenon of implicit racial prejudice: the cognitive processes whereby, despite even our best intentions, the human mind automatically classifies information in racial categories and against disfavoured social groups. Empirical research shows convincingly that these biases against socially disfavoured groups are (i) pervasive; (ii) often diverge from consciously reported attitudes and beliefs; and (iii) influence consequential behaviour towards the subjects of these biases. The existence of implicit racial prejudices poses a challenge to legal theory and practice. From the standpoint of a legal system that seeks to forbid differential treatment based upon race or other protected traits, if people are in fact treated differently, and worse, because of their race or other protected trait, then the fundamental principle of anti-discrimination has been violated. It hardly matters that the source of the differential treatment is implicit rather than conscious bias. This article investigates the relevance of this research to the law by means of an empirical account of how implicit racial bias could affect the criminal trial trajectory in the areas of policing, prosecutorial discretion and judicial decision-making. It is the author's hypothesis that this mostly American research also applies to South Africa. The empirical evidence of implicit biases in every country tested shows that people are systematically implicitly biased in favour of socially privileged groups. Even after 1994 South Africa - similar to the US - continues to be characterised by a pronounced social hierarchy in which Whites overwhelmingly have the highest social status. The author argues that the law should normatively take cognizance of this issue. After all, the mere fact that we may not be aware of, much less consciously intend, race-contingent behaviour does not magically erase the harm. The article concludes by addressing the question of the appropriate response of the law and legal role players to the problem of implicit racial bias.

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          Most cited references 48

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          Performance on Indirect Measures of Race Evaluation Predicts Amygdala Activation

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            An fMRI investigation of race-related amygdala activity in African-American and Caucasian-American individuals.

            Functional magnetic resonance imaging (fMRI) was used to examine the nature of amygdala sensitivity to race. Both African-American and Caucasian-American individuals showed greater amygdala activity to African-American targets than to Caucasian-American targets, suggesting that race-related amygdala activity may result from cultural learning rather than from the novelty of other races. Additionally, verbal encoding of African-American targets produced significantly less amygdala activity than perceptual encoding of African-American targets.
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              Sources of Implicit Attitudes

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                Author and article information

                Contributors
                Role: ND
                Journal
                pelj
                PER: Potchefstroomse Elektroniese Regsblad
                PER
                Publication of North-West University (Potchefstroom Campus) (Potchefstroom, North-West Province, South Africa )
                1727-3781
                2017
                : 20
                : 1
                : 1-25
                Affiliations
                orgnameUniversity of Pretoria South Africa willem.gravett@ 123456up.ac.za
                Article
                S1727-37812017000100018
                10.17159/1727-3781/2017/v20n0a1312

                This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.

                Page count
                Figures: 0, Tables: 0, Equations: 0, References: 48, Pages: 25
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