Implicit Bias, Legal Ecology and Reason-Responsiveness

Łukasz Kurek Jagiellonian University

Implicit Bias, Legal Ecology and Reason-Responsiveness

A. Introduction

Our knowledge of the workings of the mind has grown rapidly in recent decades. One of the most profound discoveries made by cognitive scientists is connected with implicit information processing. It occurs when the mind works in the „intuitive‟ mode, which is relatively fast, automatic and unconscious. The intuitive mind is, therefore, introspectively inaccessible. Of course, philosophers and psychologists suspected for a long time that people have thoughts of which they are unaware. What has changed is that now they have at their disposal methods to measure them scientifically. What is more, according to the modern image of the mind, what is introspectively accessible is even less – much less – than the proverbial tip of the iceberg. On the one hand, this should not worry us very much. In many cases, the mind operates most fluently when it works in the implicit mode. On the other hand, in some instances our limited self-knowledge can be problematic. This is the case of implicit bias, i.e. the disposition to respond unfavourably to a member of a social group which is relatively automatic and unconscious. It may even be the case that the person would disavow her implicit and negative evaluative tendencies if they would be revealed to her. From her perspective, it is as though these tendencies belong to another person. Because implicit bias impacts upon human decision-making and behaviour, research on this phenomenon presents both a challenge and a promise for lawmakers. The challenge consists in introducing appropriate changes to the current anti-discrimination law, which seems to target exclusively the explicit discrimination of individuals. The promise is that it suggests a possibility of creating, through law, an environment which would minimize the impact of implicit bias on behaviour. However, such legal ecology rests on crucial assumptions pertaining to the nature of 1

the intuitive mind – especially its rationality – which are rarely articulated in detail. The overarching goal of this chapter is to outline the most important aspects of the psychological mechanisms responsible for implicit bias which are relevant for the project of legal ecology.

B. Implicit bias Over the years, the nature of different prejudices – especially racial prejudice in the United States – has changed. Investigators suspected that respondents did not want to be viewed as racists anymore, and provided socially desirable answers which presented them in a favourable light.1 To some extent, perhaps they even believed that their answers were correct. However, many suspect that racial prejudice became much more subtle and was expressed indirectly, for example, as opposition to preferential treatment for minorities.2 Because the standard, explicit attitude tests failed to overcome this self-presentation bias and capture the new form of negative, stereotypical evaluation, new experimental methods were designed. These methods promise to reveal attitudes that people do not want to admit even to themselves. The methods in question are based on work on priming of automatic responses. Researchers found that stimuli such as pictures or words – even when presented very briefly – tend to influence or prime thought and behaviour. Such implicit reactions can in turn influence thought and behaviour connected with other stimuli, changing the speed of responses to these stimuli. The most famous application of this approach to the phenomenon of implicit bias is the Implicit Attitudes Test (IAT).3 When the IAT is used to assess implicit racial bias, for example, respondents are usually shown, one at a time, pictures of black and white persons and positive (e.g. love, peace) or negative (war, bomb) words. During the first stage of the experiment they are told to press, as quickly as possible, one key if they see a black person or a positive word and another key if they see a white person or a negative word. During the second stage of the experiment they are told to press one key if they see a black person or a negative word and another key if they see a white person or a positive word. White respondents (over 70%) tend to be faster and make fewer mistakes in pairing pictures of black persons with negative words and 1

I. A j z e n , Attitudes, Personality and Behavior, Maidenhead 2005, p. 16. J. M c C o n a h a y , Modern Racism, Ambivalence, and the Modern Racism Scale, [in:] D o v i d i o , G a e r t n e r (eds), Prejudice, Discrimination, and Racism, Academic Press, San Diego, CA 1986, p. 92. 3 A.G. G r e e n w a l d , D.E. M c G h e e , J.L. S c h w a r t z , Measuring Individual Differences in Implicit Cognition, Journal of Personality and Social Psychology 1998, vol. 74, pp. 1464–1480. 2

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pictures of white persons with positive words. Furthermore, roughly 40% of black respondents show a similar preference for white over black persons.4 There is now a large body of experimental evidence for the existence of implicit bias in the evaluation of members of social groups individuated, inter alia, by ethnicity, gender, class or political views. The main concern connected with this research is that implicit bias seems to permeate social interactions, influencing thought and behaviour in a similar manner as in the case of explicit bias. However, the person who is explicitly biased is fully aware that she holds such views and is able to articulate them. Furthermore, such a person acts on her biased evaluations without much hesitation. The research on implicit bias suggests that the following fictional example, proposed by the philosopher Eric Schwitzgebel, may be closer to the reality than might otherwise be thought. Julie is a white American philosophy professor. She is aware that there is no evidence for difference in intelligence between different races and she is vocal in articulating this belief. Still, her behaviour manifests racial bias: When she gazes out on class the first day each term, she can‟t help but think that some students look brighter than others – and to her, the black students never look bright. When a black student makes an insightful comment or submits an excellent essay, she feels more surprise than she would if a white or Asian student did so, even though her black students make insightful comments and submit excellent essays at the same rate as the others do. This bias affects her grading and the way she guides class discussion.5

What is more, it is plausible that if Julie was told about her implicit racial bias, she would disavow it. She would not deny possessing it, but at the same time she would feel and perhaps even argue that the racial bias does not represent what she truly believes. She would both be alienated from her bias and take responsibility for the actions caused by it. Given that even Julie would most probably like to dispose of her bias, are there any features of it which suggest that it is possible? The answer to this question requires investigation into the nature of implicit bias. 4

B.A. N o s e k , A.G. G r e e n w a l d , M.R. B a n a j i , The Implicit Association Test at Age 7: A Methodological and Conceptual review, [in:] B a r g h , (ed.), Automatic Processes in Social Thinking and Behavior, Psychology Press, Philadelphia, PA 2007, p. 268. 5 E. S c h w i t z g e b e l , Acting Contrary to Our Professed Beliefs, or the Gulf Between Occurrent Judgment and Dispositional Belief, Pacific Philosophical Quaterly 2010, vol. 91, No. 4, p. 532.

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The influence of implicit attitudes on decisionmaking and behaviour is widespread and varied. This influence can be perceived not only in experimental settings, but also in real world situations. There are studies suggesting that implicit biases influence on-the-spot judgments and decisions, for instance, judgments concerning whether or not a person is holding a gun,6 or if a basketball player has committed a foul.7 Perhaps even more counterintuitive findings reveal that implicit biases can also influence more deliberate, thoughtful judgments and decision-making. Examples include what diagnosis of health care a medical patient should get,8 who should or should not serve on a jury,9 or which resumé will be interviewed.10 In the empirical literature on implicit bias, hitherto the emphasis has been on its measurement. For instance, some doubts have been expressed what exactly is being measured by the IAT; the reliability of implicit measures has been undermined; and some have argued that implicit measures merely reflect learned cultural stereotypes and not necessarily person‟s own opinions.11 On the other hand, many social psychologists would probably agree that implicit bias – or implicit attitudes in general – is one of the most important discoveries made in their field in the last decades.12 Despite the focus on the measurement, researchers have also proposed some theoretical accounts of what implicit attitudes are and what their psychological genesis is. This is especially interesting in the context of this chapter, as any kind of effort to manage implicit bias made by lawmakers should be based on the appropriate understanding of its psychological mechanism. Only then, one might expect the law which targets implicit bias to be effective in the long run. Theoretically, one of the most important issues pertaining to implicit bias is what makes it implicit. In the literature, there are two streams of research which answer this question differently. The first one identifies implicitness with unconsciousness and the second one 6

B.K. P a y n e , Conceptualizing control in social cognition: The role of automatic and controlled processes in misperceiving a weapon, Journal of Personality and Social Psychology 2005, vol. 81, pp. 181–92. 7 J. P r i c e , J. W o l f e r s , Racial discrimination among NBA referees, Quaterly Journal of Economics 2010, vol. 125, No. 4, pp. 1859–1887. 8 I. B l a i r , J. S t e i n e r , E. H a v r a n e k , Unconscious (implicit) bias and health disparities, The Permanente Journal 2011, vol. 15, No. 2, pp. 71–78. 9 I . H a n e y - L ó p e z , Institutional Racism: Judicial Conduct and a New Theory of Racial Discrimination, The Yale Law Journal 2000, vol. 109, No. 8, pp. 1717–1885. 10 M. B e r t r a n d , S. M u l l a i n h a t h a n , Are Emily and Greg More Employable than Lakisha and Jamal?: A Field Experiment on Labor Market and Discrimination, American Economic Review 2004, vol. 94, No. 4, pp. 991–1013. 11 A j z e n (N.3), p. 18. 12 E. M a c h e r y , De-Freuding Implicit Attitudes, [in:] B r o w n s t e i n , S a u l (eds), Implicit Bias and Philosophy. Volume I: Metaphysics and Epistemology, Oxford University Press, Oxford 2016, p. 104.

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underscores the automaticity of implicit bias.13 It is the second strand of research on implicit bias which is especially interesting for lawmakers, because the law directed against implicit bias should take into account how such biases respond to outside intervention, i.e. whether they are reflex-like, mandatory and inflexible or, at least to a certain extent, intelligently responsive, controllable, and malleable. If it is the case, for example, that implicit bias is malleable, then the law may introduce solutions which will aim to change it. Such solutions will most probably work only in the long-term, as changes to automatic information processing pertaining to a given object require continuous intervention.14 On the other hand, if implicit bias is reflex-like, the best strategy to hinder its impact will be different. It could consist, for example, in eliminating the triggering stimuli from the environment.

C. Legal ecology

Of course, the differential treatment of a person based on the group, class or category they belong to is at odds with basic human rights and one of the long-standing goals of the law is to eradicate it. However, the phenomenon of implicit bias is especially troubling for lawmakers. The reason for this is that the current antidiscrimination law is aimed at explicit bias which is considerably easier to handle. Explicitly biased people are fully aware of their evaluative tendencies and may even articulate them, knowingly acting on these tendencies. Such acts consist in unequal treatment and the differentiated outcomes produced in these circumstances are readily detectable. However, there seems to be an agreement in the scholarly literature that the existing antidiscrimination law fails to deal with implicit bias.15 The concept of legal ecology refers to the project of creating – through legal means – an environment which aids decision-making. The idea that law should be utilized in such a manner goes back to Aristotle, who claimed that normative ecology – comprising of both moral and legal rules – should promote human flourishing by influencing habits which produce certain values. Recently, the idea of legal engineering of the environment of decision-makers so that they make 13

M. B r o w n s t e i n , J. S a u l , Introduction, [in:] B r o w n s t e i n , S a u l (N. 12), p. 7. R. S h i f f r i n , W. S c h n e i d e r , Controlled and Automatic Human Information Processing. Perceptual Learning, Automatic Attending and a General Theory, Psychological Review 1977, vol. 84, No. 2, p. 185. 15 For a comprehensive list of works on this subject, see Ch. J o l l s , C. S u n s t e i n , The Law of Implicit Bias, California Law Review 2006, vol. 94, pp. 978–979. 14

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better choices has become popular, due to the growing scientific knowledge about the psychological mechanisms of implicit cognition, including implicit biases. According to Nilanjana Dasgupta, one of the researchers working on the methods of reducing implicit bias through changes in the environment, “environments that facilitate positive contact with members of stereotyped groups create and reinforce positive implicit associations, thereby counteracting implicit bias”.16 The most prominent attempt to deal with implicit bias at the level of lawmaking is the socalled „affirmative action‟, which consists in favouring members of a stigmatized group. For example, if implicit bias leads to an incorrect evaluation of a woman as a worse employee than a man, adequately architected affirmative action will break the connection between such a bias and a differential outcome. What is interesting, this strategy has further consequences – it reduces implicit bias. Research suggests that people who live in diverse environments where members of stigmatized groups are encountered in a broad range of situations tend to be less implicitly biased and more explicitly egalitarian.17 However, affirmative action is rather heavy-handed and many argue that it leads to undesirable side-effects, such as reverse discrimination.18 Therefore, more direct strategies of dealing with implicit bias through lawmaking have been proposed. They also consist in introducing appropriate changes to the environment of decision-makers. However, these changes are more subtle and influence implicit bias more directly – indeed, these strategies are described as „debiasing through law‟, as opposed to indirect influence through affirmative action, which consists in severing the connection between the negative evaluation and outcomes.19 The strategies proposed for lawmakers – the architects of the legal environment – typically fall into two categories. The first strategy consists in constructing an environment which could prevent bias from being activated by insulating persons from the information which

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N. D a s g u p t a , Implicit Attitudes and Beliefs Adapt to Situations: A Decade of Research on the Malleability of Implicit Prejudice, Stereotypes, and the Self-Concept, Advances in Experimental Social Psychology 2013, vol. 47, p. 247. 17 N. D a s g u p t a , L. R i v e r a , When Social Context Matters: The Influence of Long-Term Contact and Short-Term Exposure to Admired Outgroup Members on Implicit Attitudes and Behavioral Intentions, Social Cognition 2008, vol. 26, No. 1, pp. 112–123. 18 W. G a m s o n , A. M o d l i g l i a n i , The Changing Culture of Affirmative Action, [in:] B u r s t e i n (ed.), Equal Employment Opportunity. Labor Market, Discrimination and Public Policy, Aldine de Gruyter, New York 1994, pp. 391–392. 19 J o l l s , S u n s t e i n (N. 15), p. 969.

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could trigger it.20 For instance, removing certain information from resumés and other documents filed by job applicants should minimize the chances of implicit bias as the evaluators will not be influenced by the gender, age or race of the evaluated person. This strategy promises to be effective as it simply prevents bias triggering. On the other hand, the circumstances which allow its deployment are limited. The more promising strategy, albeit a more demanding one, consists in limiting the effects of implicit bias in the situations which can trigger it.21 Such limitation may involve either suppressing the activation of the bias, or blocking its influence on judgment or action. For example, if anonymizing CVs is not possible, the law may encourage or require employers to take steps that reduce implicit bias, such as deliberately exposing employees to counterstereotypical exemplars. This strategy is based on findings which suggest that when respondents are presented with images and short biographies of respected black persons, such as Martin Luther King, and despised white persons, such as the serial killer Jeffrey Dahmer, and then tested with IAT, their implicit racial bias significantly decreases.22 Although many of the normative recommendations about the kind of strategies which could reduce implicit bias seem to be promising, it appears they are not taking into account the important details of their underlying psychology. We still do not know many of the important aspects of the formation of implicit bias, but even the limited findings suggest, inter alia, that some implicit associations will influence only the judgment and not the behaviour, and others will have more impact on the behaviour.23 Specifically, exposing counter-stereotypical exemplars to a given stereotype may not influence behaviour toward members of the stigmatized group but only judgments made about them, e.g. the evaluations of their competence. Some of the more perplexing features of implicit bias can be made more understandable if the basics of its psychology – at least what we know about it at the present moment – could be explained in a way which could be adopted by the law. This requires building a conceptual bridge between the science of implicit bias and the practice of lawmaking. One of the most interesting proposals of such a conceptual linkage is connected with reason-responsiveness, a 20

J. H o l r o y d , J. S w e e t m a n , The Heterogenity of Implicit Bias, [in:] B r o w n s t e i n , S a u l (N. 12), p.

97. 21

Ibid., p. 98. N. D a s g u p t a , A. G r e e n w a l d , On the Malleability of Automatic Attitudes: Combating Automatic Prejudice with Images of Admired and Disliked Individuals, Journal of Personality and Social Psychology 2001, vol. 81, No. 5, pp. 800–814. 23 H o l r o y d , S w e e t m a n (N. 20), p. 98. 22

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philosophical concept which is at the border between our commonsensical and scientific understanding of how the mind works. However, before we can proceed to explain the psychological mechanism of implicit bias with the help of this conceptual tool, a few more aspects of the relation between implicit and explicit cognition need to be underscored.

D. The intuitive mind

One of the most interesting strands of research on implicit and explicit cognition and the relation between them has been carried out by the proponents of the dual-processing accounts of the mind.24 These accounts differ but their common theme is that the human mind can be divided into two types of systems. System 1 – the intuitive system – consists of cognitive processes which are relatively fast, automatic, and nonconscious. Only the results of these processes are available to consciousness. System 2 – the analytical mind – consists of cognitive processes which are relatively slow, controllable and conscious. The intuitive mode is the default mode for the mind, so in most cases it will be responsible for thinking and acting. The analytical mind intervenes only when the person encounters a novel, difficult situation which motivates to think in a careful manner to override the intuitive verdict. The main goal of the intuitive mind is to enable efficient action. The intuitive mind generates beliefs which contain only the basic information about their object. On the other hand, the main goal of the analytical mind is not practical but theoretical – it aims at generating beliefs which correspond to reality in the best possible way. One of the most important discoveries connected with the operation of the intuitive mind is that instead of complex rules, it uses simple heuristics, i.e. rules of thumb that function sufficiently well in most situations, but there are contexts in which they almost always fail. Perhaps the most well-known example of such a systematic failure is the so-called „Linda problem‟, an experiment carried out by Amos Tversky and Daniel Kahnemann. 25 It consists of respondents judging whether it is more probable that Linda – which is 31 years old and, when she was at college, she was concerned with the issue of discrimination – is a “bank teller and 24

J. E v a n s , K. S t a n o v i c h , Dual-process theories of higher cognition: Advancing the debate, Perspectives on Psychological Science 2013, vol. 8, No. 3, pp. 223–241. 25 A. T v e r s k y , D. K a h n e m a n n , Extensional versus intuitive reasoning: The conjunction fallacy in probability judgment, Psychological Review 1983, vol. 90, No. 4, pp. 293–315.

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active in the feminist movement” or only a “bank teller”. According to probability theory, it would be a mistake to judge that the conjunction of two conditions is more probable than one of the conjuncts – to make such a judgment is to make a conjunction fallacy. Tversky and Kahnemann argued that the source of the fallacy is the representativeness heuristic which causes us to judge that something is more likely if it is more similar to its prototype. In the case of Linda, her description makes her more similar to a typical feminist and, as a consequence, people claim that it is more probable that she is both a feminist and a bank teller than only a bank teller. In everyday situations, the most important role for the analytical mind is to correct the mistakes of the intuitive mind. Sometimes such corrections are relatively easy. For instance, imagine a person who, while walking through a forest, notices a branch which resembles a snake. Initially, this object will be classified by the intuitive mind as dangerous and it will prepare the body for a flight. All of this will happen because the intuitive system is unable to take into account much information about the perceived object. Its role is not fact checking but efficient action. Only after this initial stage, will it be possible for the analytical mind to consciously and deliberately override this intuitive decision. On the other hand, there are situations when the intuitive mind errs systematically and the correction of its mistakes requires intervention from the outside. This insight is provided by the research on heuristics, especially the contexts when they lead us astray. For instance, the Linda problem proved to be very difficult to eradicate. Conjunction fallacy is common even among persons with formal education in statistics. However, there are ways to reduce the error rate even in this case. It requires changing the environment in which the judgment is made, i.e. changing the way the information is provided to the respondents. Such changes involve, inter alia, replacing probabilities with frequencies, e.g. instead of asking to judge probabilities, respondents are told that there are 100 persons who fit Linda‟s description and then they are asked to judge how many of them are (1) feminists and bank tellers and (2) only bank tellers. Given the above, the phenomenon of implicit bias seems to be coherently explainable by a dual-account of the mind. In the case if implicit bias, the intuitive mind is mainly responsible for the tendency to negatively evaluate members of a certain group as the biased. Persons form their judgments in response to biasing stimuli, such as skin colour, age, sexual orientation or gender, in a largely automatic manner, with little to no conscious thought. What is more, because of the nature of the intuitive mind, people are often genuinely surprised when told that they

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harbour such evaluative tendencies. On the other hand, is seems plausible that their explicit commitment toward equal treatment of people, despite the individual differences between them, is formed by their more deliberate, analytical minds. Furthermore, there is a clear correspondence between the idea of legal ecology – i.e. creating, through law, the environment which will assist in diminishing the impact of implicit bias – and the research on how to overcome systematic biases in reasoning and decision-making connected with the use of fallible heuristics. There is one important issue which needs addressing. According to the above description of the intuitive mind, it generates beliefs, whereas in the psychological literature on implicit bias, it is usually understood as an attitude. Therefore, the relation between attitudes and beliefs needs to be outlined in order to explain how implicit bias is generated by the intuitive mind. Attitudes are more complex entities than beliefs. In cognitive science, an attitude is an overall evaluation of an object and it has valence (positive or negative), intensity, and many cognitive, emotional, and behavioural aspects.26 The concept of an attitude refers to the “psychological tendency that is expressed by evaluating a particular entity with some degree of favor or disfavor”.27 Its meaning is, therefore, similar to the commonsense concept of an attitude. Both cognitive scientists and laypeople infer attitudes on the basis of observation of evaluative responding to various attitude objects, such as persons and groups, virtually anything that is discriminable can be evaluated and, as such, can function as an attitude object. To explain attitudes, cognitive psychologists propose different psychological mechanisms of their formation. According to one of the most widely accepted theories of attitude formation, the expectancy-value model, a person's evaluation of an object is determined by her salient beliefs about the object.28 Belief, in turn, is defined as the subjective probability that the object has a certain attribute.29 As a consequence, each belief associates an object with a certain attribute. At first blush, the principle that people form positive attitudes toward objects that they think have good attributes and negative attitudes toward objects that they think have bad attributes may seem obvious and uninteresting. However, the understanding of beliefs as 26

A. E a g l y , S. C h a i k e n , The Psychology of Attitudes, Wadsworth Cengage Learning 1993, Belmont, CA, pp. 1–8. 27 Ibid., p. 1. 28 I. A j z e n , J. S e x t o n , Depth of Processing, Belief Congruence, and Attitude-Behavior Correspondence, [in:] C h a i k e n , T r o p e (eds), Dual-Process Theories in Social Psychology, Guilford Press, New York 1999, p. 118. 29 Ibid.

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probabilities and the understanding of attitudes as evaluations of the attributes of their objects provides an insight into developing an attitude-changing strategy. The psychological route from the intuitive mind to attitudes is not, therefore, direct. The intuitive mind generates beliefs which, in turn, determine the attitudes of people. If we take this view, beliefs are the cognitive component of attitudes. As a consequence, influencing attitudes, including implicit biases, requires a kind of persuasion that a given object possesses or does not possess a certain attribute. This is exactly the assumption of legal ecology, i.e. this project presupposes that beliefs can be revised in response to compelling evidence. In other words, if the intuitive mind generates belief, it can be described as rational.

E. Reason-responsiveness and implicit bias There are two senses in which the word „rational‟ can be used in regard to the mind, the first is categorical and the second is normative.30 In the categorical sense, it means that the mind consists of the controllable process which can, in principle, be influenced by conscious thought. For the process to be able to be influenced by conscious thought, it must be caused in a certain way: its causes must include reasons. In other words, for the mind to be rational in this sense, it must include processes which are reason-responsive. Arguably, mental states generated by processes which are completely reason-unresponsive cannot be described as beliefs, because we would like to reserve this term for mental states sophisticated enough to meet the expected standard. This is why, it is usually argued that animals and small children cannot believe. On the other hand, the normative sense of „rational‟ implies that the workings of the mind have been influenced by appropriate reasons. In this second sense, when the mind is not rational, it works below a certain standard but it could – in principle – reach this standard. In other words, for the mind to be rational in this sense, it must be able to be influenced by the process which is reasonresponsive and actually be influenced by appropriate reasons. Of course, when the intuitive mind, indirectly, generates implicit bias, it is not rational in the normative sense. However, the intuitive mind should be rational in the categorical sense, if the project of legal ecology is to be effective. Belief appears to be connected with both speech and action. The speech-belief connection 30

R. D e S o u s a , Why Think? Evolution and the Rational Mind, Oxford 2007, p. 7.

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can be associated with Descartes who claimed that the mind is completely transparent to itself. It means that a person should be able to articulate all of her beliefs, at least in principle. The actionbelief connection can be associated with Aristotle and Hume, and according to them beliefs guide our actions. It might seem, therefore, that both of these connections are definitional for belief. However, taken together, they are incompatible as universal principles applying to beliefs. Their incompatibility reveals itself in cases of conflicting behaviour, an example of which is the case of the above-mentioned Julie, the white American philosophy professor. She is disposed to assert one thing – that she is does not believe there are differences in intelligence between the races – and, at the same time, she behaves as if she believed that there are such differences. It seems that there are two plausible solutions to this puzzle. Either (1) belief is primarily connected with speech and deliberation, or (3) there are two distinct types of belief: one connected with speech and deliberation and the other connected with action. The dominant view on belief is that it is primarily connected with speech and deliberation and there are many compelling reasons for this view. One of them is that beliefs are intelligent states and only states which can be articulated and consciously deliberated upon are sufficiently complex to be both highly sensitive to evidence and inferentially integrated with each other. According to this view, the intuitive mind is unable to form beliefs, i.e. mental states meeting the required standard of intelligence. However, in the light of the research on implicit cognition, such view is premature. As it has already been mentioned, the goal of the intuitive mind is to allow efficient action. This goal would be unattainable if it were not able to generate states which, at least to a certain extent, meet the required standard of intelligence. Of course, these states are not sophisticated in a way linguistic beliefs are. For instance, they are probably inferentially integrated in a very loose manner and contain only a small amount of information about their objects as compared to their linguistic cousins. Still, both of these types of mental states share a crucial common feature, namely the appropriate sensitivity to evidence. The claim that both intuitive and linguistic beliefs are sensitive to evidence may be illustrated by an example of a football player‟s behaviour when he is trying to intercept a ball. As the ball is kicked, he is unable to tell where it is going to land. On the other hand, he is able to move in the right place to cross the path of the ball. The actions of the football player are controlled without conscious thought, they are spontaneous and unreflective. What is more,

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giving thought to these actions will most probably harm the performance. Despite being unreflective, the action of the football player is clearly intelligent, i.e. it is responsive to evidence in an appropriate manner. It is natural to explain his actions in terms of his beliefs about the behaviour of the ball, about the rules of the game or about the behaviour of other players. Also, we would expect his behaviour to change if his beliefs changed. What is important, we would expect his behaviour to change in response to the changes in his beliefs, we would not expect the changes in his behaviour to be random. If the law can be used to de-bias, the intuitive mind should be, at least to a certain extent, reason-responsive, i.e. it should be sensitive to evidential reasons in the appropriate way.31 To explicate this further, it will be useful to divide reason-responsiveness into two more specific abilities:

(1) The ability to recognize reasons.

(2) The ability to follow reasons.

Both of these abilities are necessary for reason-responsiveness. When a person recognizes a reason, she is aware of her beliefs and desires which form the reason in question, she reflects on these beliefs and desires and regards some of them as persuasive. For example, if a person buys a computer because it has the best price/performance ratio, she is aware that the computer has the best price/performance ratio and comes to the conclusion that this is the appropriate reason to buy it. On the other hand, responding to reasons consists in being motivated by reasons. Referring to the previous example, if a person buys a computer because it has the best price/performance ratio, her action is motivated by the fact that the computer has the best price/performance ratio. On this account, when talking about reasons, we are talking about the components of the person‟s decision-making process which result in the action in question, and we assume that this process really occurs. The distinction between recognizing reasons and responding to reasons is useful because sometimes a person can lack the former but have the latter or she can lack both. Referring to

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For a detailed presentation of one of the influential theories of reason-responsiveness, see J. M. F i s c h e r , M. R a v i z z a , Responsibility and Control: A Theory of Moral Responsibility, New York 1998, passim.

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attitude formation, these abilities may be described in the following way:

(1*) The ability to recognize evidential reasons when generating attitudes.

(2*) The ability to respond to evidential reasons when generating attitudes.

It is worth noting that both abilities should be understood dispositionally as tendencies to recognize and to follow evidential reasons. If they were understood as necessary conditions for attitude formation, it would obviously be a too strict requirement. It can be illustrated on the following examples. In the case of the lack of the ability to recognize adequate evidential reasons, we can refer to the phenomenon of self-deception, which consists in believing that p even in the face of strong evidential reasons which undermine this belief. Self-deceivers are unable to recognize these evidential reasons, i.e. they have the tendency not to recognize them. It seems that such beliefs are usually not the products of a conscious deliberation because beliefs which are generated in such a manner tend to follow the evidential rule of belief. This does not entail that self-deceivers are completely unable to recognize evidential reasons. It only points to the fact that in certain situations they lack the ability to recognize evidential reasons, and, as a consequence, in these situations they lack reason-responsiveness. The phenomenon of self-deception hints at the first issue which should be taken into account when constructing the legal landscape hostile for behaviour influenced by implicit bias. This is whether, and to what extent, the intuitive mind is able to recognize evidential reasons when it is generating beliefs. In some situations – plausibly in the case of implicit bias – the intuitive beliefs are generated with only a weak relation to supporting evidence. Instead, they are generated almost completely in accordance with the principle of coherence with the already held beliefs or with the beliefs held by other persons. In these situations, it will be difficult to change the beliefs responsible for biased evaluations as these beliefs are probably coherent with what the person knows or with what others in her local environment say. In such situations, the removal of the bias triggering stimuli seems to be the best solution. However, the influence of supporting evidence on belief formation will change depending on various factors, such as the nature of the bias or the stimuli which trigger it. In the case of the lack of the ability to respond to adequate evidential reasons, we can

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refer to the phenomenon of akrasia – weakness of will – which consists in an action which is inconsistent with the belief about what is the rational thing to do. Acratic behaviour, however, leads to the satisfaction of a strong desire. On the one hand, the acratic person believes that a particular action is the correct action in the given circumstances, and this belief is generated by her recognizing evidential reasons. However, because the person is unable to respond to the evidential reasons in the appropriate manner, she behaves acratically. Similarly to the case of self-deception, persons who act acratically should not be understood as unable to respond to evidential reasons tout court. This ability is limited in the context of their acratic behaviour. Akrasia indicates another aspect of implicit bias which is important in the context of building the appropriate legal ecology: there are situations when the intuitive mind is able to recognize evidential reasons but in is unable to respond to them. This happens when the belief coherence or the acceptance by other persons is more influential than the amount of supporting evidence. This may indicate a „milder‟ version of implicit bias in comparison with the cases when the intuitive mind lacks even the ability to recognize reasons. What is more, this type of implicit bias may be responsive to changes through the appropriate construction of its local environment.

F. Conclusion

Recently, legal scholars have proposed numerous solutions on how to eradicate or hinder the influence of implicit bias on behaviour. Despite this, little effort has been directed to find a common denominator to all these normative suggestions. It has been argued in this chapter that the project of legal ecology should be based on the appropriate understanding of psychological mechanisms which underlie implicit bias. Furthermore, the conceptual bridge between the scientific findings pertaining to the genesis of implicit bias and attempts to influence it through law is provided by the concept of reason-responsiveness, i.e. the ability to recognize and to respond to reasons. Specifically, in each case of implicit bias it should be investigated whether and to what extent the intuitive mind possesses these abilities. Because of the heterogeneity of implicit bias, normative solutions based on such considerations should prove to be more efficient.

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