Social Cognitive Studies, Sociological Theory, and International Law

International Law’s Invisible Frames – Social Cognition and Knowledge Production in International Legal Processes (Andrea Bianchi & Moshe Hirsch eds., Oxford U. Press, forthcoming)

Hebrew University of Jerusalem International Law Forum Working Series [02-21]

24 Pages Posted: 1 Jun 2021

See all articles by Moshe Hirsch

Moshe Hirsch

Hebrew University of Jerusalem - Faculty of Law

Date Written: May 31, 2021

Abstract

The image of international legal decision-makers emerging from socio-cognitive studies is significantly different from the prevalent view among diverse actors operating in this field. The socio-cognitive perspective of international law underlines that sensory objects are not 'objectives' or self-evident, and that their internalization in legal decision-makers' minds always involves intermediating mental processes (such as perception, categorization, and interpretation). Limited cognitive resources available to such decision-makers (including military commanders, national decision-makers, and international adjudicators) often lead them to utilize heuristic shortcuts (though occasionally involving some well-known biases). These cognitive processes and heuristics are frequently influenced by socio-cultural patterns (such as norms of attention, stereotypes, or languages) prevailing in the decision-makers' social groups, and often below their conscious level. The increasing awareness to the constraining influence of default socio-cognitive systems on individuals tends to diminish the significance of human agency in real life social situations. On the theoretical level, the latter tendency in socio-cognitive literature supports a shift towards the structural pole of the agency–structure continuum. The formation, interpretation, and implementation of international law interact with diverse socio-cognitive processes. Equipped with insights drawn from socio-cognitive and sociological theoretical literatures, the last section of this chapter focuses on international criminal law, emphasizing its intensified multi-cognitive character and the significant effects of socio-mental patterns on defendants and additional actors (such as adjudicators and prosecutorial staff). This discussion suggests that where it is credibly proven that the particular crime directly involves a distinctive socio-cognitive pattern predominant in the defendant's community, it is desirable that the tribunal considers the defendant's socio-cognitive background as a mitigating or aggravating factor at the sentencing stage.

Keywords: International law, international tribunals, international human rights law, international criminal law, social cognition, cognitive psychology, cognitive sociology, sociology of law

Suggested Citation

Hirsch, Moshe, Social Cognitive Studies, Sociological Theory, and International Law (May 31, 2021). International Law’s Invisible Frames – Social Cognition and Knowledge Production in International Legal Processes (Andrea Bianchi & Moshe Hirsch eds., Oxford U. Press, forthcoming), Hebrew University of Jerusalem International Law Forum Working Series [02-21], Available at SSRN: https://ssrn.com/abstract=3856991 or http://dx.doi.org/10.2139/ssrn.3856991

Moshe Hirsch (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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