Once you’re aware of “dehumanization” as a feature of communication, you start to see it everywhere. Characterizing a group as less than human in one or more ways is often part of the rhetorical landscape on the most divisive issues. If economic or political migrants, for example, are viewed as animals, or pests, or as a spreading disease, then it’s possible to justify forced family separations, tear gas at the border, and asylum-seeking children in cages. That is a large-scale example of the tendency of lower-status groups to be dehumanized independent of wrongdoing, but there are smaller examples as well. Thinking of an adversary as “mindless,” or as a “plague” or a “cancer,” is also thinking in dehumanized terms. In response to something that is considered an outrage, seeing the target in ways that are less than fully human can seem justified. But it is dangerous rhetorical ground — dangerous for both the effective and ethical administration of justice.
In an adversary system, what is prized is zeal in defending one’s own clients, and that often means zeal in going after the other side. So isn’t some measure of rhetorical aggression against the other side a good thing? It can be, but dehumanization is different. Recent research (Bruneau, 2018) uses fMRI brain imaging to demonstrate that dehumanization is neurally distinct from even extreme dislike. If an advocate’s zeal creates such a scorched-earth attitude toward the opposition that one starts to think of them as outside the bounds of normal human moral agency and concern, then there’s a problem. It is likely that few litigators would think that they’re consciously dehumanizing an adversary, but in this post, I will look at a few ways that dehumanization could be influencing the legal process nonetheless.
Don’t Dehumanize Offenders
Dehumanization is a particular risk in the criminal justice system. In a study of attitudes in the United States, researchers (Bastian, Denson & Haslam, 2013) found that dehumanization of the perpetrator drives recommended punishment severity, independent of crime type or severity. Dehumanization as part of victim impact statements has the same effect. Prosecutors and others involved in delivering justice have a responsibility to society and to crime victims to take crime seriously and to work to deter and punish crimes, but also a responsibility to do so while recognizing the humanity of those who are accused.
Don’t Dehumanize Types of Parties
The civil arena can also be prone to the assumptions and stereotypes that lead to thinking of parties as aggregate categories rather than as individuals. An anti-plaintiff bias, as well as an anti-corporate bias, can lead to a reductionistic way of thinking about opponents, a way that emphasizes broad and impersonal traits instead of individual facts. I have written previously on research showing that dehumanizing attitudes can short-circuit our moral reasoning and that settings where you perceive yourself to be at an advantage can lead to a dehumanization of others, even in settings like negotiation. The best negotiations and the best advocacy requires the ability to take the perspective of the other — to see the reasonability and interests in their position. That requires accounting for them as individuals and not as types or caricatures.
Don’t Dehumanize Decision-makers
There can be a tendency among lawyers to subtly look down on jurors. They lack the sophisticated understanding of the facts and the law, of course, and that can make them seem childish or not completely rational. In a way, I think this can be an occupational hazard in the field of legal advocacy: We can start to think of targets as objects and not subjects in their own rights. We can also adapt a mechanistic view, thinking, “If I make this type of appeal then they will respond in that way,” as if it is automatic. But what I think is most fascinating and most rewarding for legal advocates is to take decision-makers as fully-formed individual subjects in all their complexity, all their unpredictability, and all of their humanity.