The Sociological Perspective on International Law
A Revised Version of This Chapter Will Be Included in International Legal Theory: Foundations and Frontiers (Jeffrey L. Dunoff & Mark A. Pollack, Eds., Cup, Forthcoming)
28 Pages Posted: 9 Nov 2018 Last revised: 3 Jan 2019
Date Written: October 15, 2018
Sociological analysis of international law begins from the premise that international legal rules and institutions are deeply embedded in the particular socio-cultural features of certain communities. Sociological factors and processes thus form an inseparable dimension of international law, and international law is both affected by and influences such factors and processes. Numerous international legal rules reflect and affect societal factors such as norms, socialization, identity, collective memories and social control. Existing sociological studies of international law essentially emphasize that socio-cultural factors are involved in two primary (and inter-related) dimensions of international law: behavior and knowledge. First, such factors influence the behavior of actors in the international legal system (e.g., via social norms). Second, sociological factors are involved in the production of collective knowledge shared by members of social groups (e.g., via collective memories regarding historical events) which also affect actors' legal behavior. Some eminent sociologists have relatively recently highlighted a third level of social behavior - the cognitive dimension. Cognitive sociology underscores that humans process information existing in our environment (e.g., filtering in/ out some items of information) also according to socio-cultural factors. Cognitive sociology literature generates significant insights regarding the link between socio-cognitive processes and international law; for example, with respect to the impact of culturally embedded categorizations on compliance with international treaties prohibiting racial or gender discrimination.
The draft chapter is structured as follows: Section II exposes the central assumptions of the sociological perspective and introduces the core theoretical approaches in sociological literature. Section III discusses the sociological dimension of international law, highlighting the role of socio-cultural factors in three primary dimensions of international law relating to behavior, knowledge, and cognition. Here we also shed light on the broad contours of earlier scholarship on the sociology of international law. To illustrate the contribution of sociological theories to international legal scholarship, this section also briefly examines the question of the desirable structural design for international legal regimes from the three major sociological theoretical perspectives. Section IV observes some significant recent changes in international investment law and sketches out some thoughts regarding sociological factors that may explain this legal change; underlining the role of strains between values prevailing in the international community and the investment arbitration community, social movements, and social control mechanisms. Section V recaps the main conclusions drawn from the preceding sections.
Keywords: international law, sociology, investment law, international legal theory, cognitive sociology, treaties
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