CIVIL

What is prejudice

Passing  judgment without a judicial process

Prejudice is, as the name implies, the process of “pre-judging” something. In general, it implies coming to a judgment on the subject before learning where the preponderance of the evidence actually lies, or formation of a judgment without direct experience. Holding a politically unpopular view is not in itself prejudice, and not all politically popular views are free of prejudice. When applied to social groups, prejudice generally refers to existing biases toward the members of such groups, often based on social stereotypes, and at its most extreme, becomes denying groups benefits and rights unjustly or, conversely, unfairly showing unwarranted favor towards others.

This must be differentiated from viewpoints accumulated though direct life experience. These are definitively not prejudiced, conditioned or necessarily instinctive. They are not pre-judgments but post-judgments. Arguments which assert that all politically inconvenient views are based on a lack of sufficient life experience provoke the question how much life experience is required before a person’s viewpoint is no longer regarded as prejudice. If the assertion is made that no amount of experience ever entitles a person to a viewpoint then this precipitates a logical absurdity. Since anyone who opposes strongly-held views must, by their own definition, also be prejudiced this invalidates their own proposition on the grounds of like prejudice. If every point of view is biased then there can simply be no objectivity. Such fallacious extension of one’s own negative past experiences to the general case however, can be harmful; it can be termed bias, or more colloquially called “lumping”. For example, a person who has had a series of bad relationships with those of the opposite sex may develop a prejudice against that sex, and thus assume that the factors souring the relationships are always present in members of that sex, and adopt the set of prejudices known as sexism. Or, if a person has grown up with the concept that members of group “X” have certain characteristics based on a sour past acquaintance with an X, they may presume that all members of the group are Y and do Z. This is seen across the board: racism, linguicism, ageism, religious intolerance, homophobia, or rejecting someone because his or her political stripe is the opposite of one’s own. In other cases, it may be a matter of early education; those taught that certain attitudes are the “correct” ones may form opinions without weighing the evidence on both sides of a given question. In other cases, it may be a matter of early education; those taught that certain attitudes are the “correct” ones may form opinions without weighing the evidence on both sides of a given question. Many prejudicial behaviors are picked up at a young age by children emulating their elders’ way of thinking and speaking, with no malice intended on the child’s part. The prejudiced adult might even be shocked to hear a slew of racial slurs and their own half-cocked opinions on various groups echoed back at them from their sons and daughters (especially in inopportune places or times).

In Jane Austen’s novel Pride and Prejudice, the heroine forms a strong opinion of a man’s character before she hears his side of the story. When the balance of the facts is finally made known to her, they challenge and ultimately overturn this prejudice. Prejudice is also a theme in To Kill a Mockingbird.

Prejudice has been termed an adaptive behavior by sociologists. Biased views are often necessary at times for human survival, as we don’t always have time to form a personal view on a potential foe before adopting a defensive stance which could save our lives. To these ends a prejudicial or instinctive view on a person or situation is useful and aids survival, but could also prevent survival if they’re prejudicing a potential ally or mate, e.g. refusing to patronize the only doctor in a town that could save you because he or she is black.

Those who detract from the validity of personally-held experienced viewpoints commonly cite racism or homophobia as cases without examining the actual proposition in more depth. Another interesting intellectual conundrum is to consider whether deeply-held spiritual or religious views are also prejudiced since they are commonly not based on direct experience.

Confusion is often found in common speech between terms for personal views held in the light of experience and the legal term for a judgment having been passed. In law, the phrase “With Prejudice” implies a judgment having been made after the presentation of evidence. The term does not imply any form of bias.

Legal prejudice

In law, the phrase without prejudice means that a claim, lawsuit, or proceeding has been brought to a temporary end but that no legal rights or privileges have been determined, waived, or lost by the result. For example, if a party brings a lawsuit in small claims court but discovers that the claim is over the amount for that court to have jurisdiction, the lawsuit can be dismissed “without prejudice”. This means that the dismissal is no bar to bringing a new lawsuit in a court that does have jurisdiction.

By contrast with prejudice means that a party’s legal rights have in fact been determined and lost. To continue the same example, if instead the court had jurisdiction, but the plaintiff did not appear for the trial, the court would dismiss the case “with prejudice”. That dismissal is a judgment against the plaintiff “on the merits” of the case, and extinguishes the claim that was being sued over. However, this does not prevent an appeal or a trial de novo if ordered by a higher court.

In many common-law jurisdictions such as England, Canada, Australia, New Zealand and Singapore, the term “without prejudice” is also used in the course of negotiations to indicate that a particular conversation or letter is not to be tendered as evidence in court. Such correspondences must be made in the course of negotiations and must be a genuine attempt to settle a dispute between the parties. It may not be used as a facade to conceal facts or evidence from the court and as such a document marked “without prejudice” that does not actually contain any offer of settlement can be submitted should the matter proceed to court.

There is also the term “without prejudice save as to costs” which is a modification to the above and refers to a communication which cannot be exhibited in court until the end of the trial when the court awards costs to the successful party.

Categories: CIVIL

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