Social Cognitive Studies, Sociological Theory, and International Law

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.