Law, Cognition, and Identity

• Author: Eric J. Mitnick
• Position: Associate Professor, Thomas Jefferson School of Law. Ph.D. (Politics), Princeton University
• Pages: 824-869

Associate Professor, Thomas Jefferson School of Law. Ph.D. (Politics), Princeton University (2004); J.D., University of Michigan (1991); A.B., Cornell University (1988).

I Understanding Law And Social Identity: The Need For A Social Cognitive Turn

There is a growing literature within sociolegal research regarding the constitutive nature of law.¹ This literature primarily has been concerned with demonstrating that legal institutions constitute aspects of social life, including, at times, aspects of human social identity.² The constitutive influence of law becomes most obvious when the legal system under scrutiny exhibits an overtly differentiated form of citizenship, such as in ancient Athens, feudal Europe, or even the pre-Civil War United States.³ In these societies, law served to embed multiple privileged and subordinate social and political statuses, differentiated according to Page 824 characteristics such as lineage, caste, and race. As a result, one's status as citizen, serf, or slave served not only as a social but also as a legal position, grounded not merely in social relations but also entrenched in, and reinforced by, the law itself.

As enlightening as constitutive treatments of ancient, medieval, and slave legal systems have been, however, the more interesting, surprising, and indeed potentially disquieting finding within the recent sociolegal literature on constitutive theory is the virtual ubiquity of law's constitutive influence in contemporary liberal democratic societies. For while consideration of pre-liberal society may throw the constitutive character of law more dramatically into relief, modern liberal democratic legal institutions persist unreservedly in structuring the categories through which individuals perceive social life and status. "Most social relations," Austin Sarat and Jonathan Simon have written, "are permeated with law. Long before we ever think about going to a courtroom, we encounter landlords and tenants, husbands and wives, barkeeps and hotel guests-roles that already embed a variety of juridical notions."⁴ The law defines social roles such as these, signifying how we should be interpreted and how we should interpret others. Consider the following social labels: one person might be described as "disabled," another mentioned as a "citizen," and a third as a member of a particular cultural group, such as a "Native American." Or, of course, each of these social labels might apply to a single individual, representing several different aspects of his social identity. The point here is that each of these identity types is constituted in virtue of the operation of a number of social institutions, including, in significant part, law.

Hence, the constitutive nature of law might be embodied in a legislative right defining and granting a right against discrimination to a certain category of persons differentiated on the basis of disability.⁵ Or law's constitutive influence might emanate, as it does with citizenship, from an actual constitution and related statutes describing the types of individuals granted full political membership, along with the rights and obligations of that social, political, and legal status.⁶ Consider too the sense in which U.S. legal institutions have conceptualized and categorized Native Americans: in the legislative arena, there is even a distinct volume Page 825 of the U.S. Code concerning federal Indian law; judicial decisions regarding particular tribes and their members typically serve as general precedents for all other Native American tribes and individuals; there is within the U.S. government an administrative agency, the Bureau of Indian Affairs, delegated by Congress general responsibility for regulating state interaction with Native American tribes; and, even within the U.S. Constitution, Native Americans are accorded a distinct and, with respect to other tribes, undifferentiated status.⁷ And yet, each of the tribes labeled and treated in this essentially uniform fashion exists (or, at least, existed) as a distinct indigenous national group, differentiated from other native groups geographically, culturally, linguistically, and in terms of social and political organization. The notion of the Native American as a type of person, or as an aspect of one's social identity, is the product of the historical fact of two large, heterogeneous, and previously removed populations, the European and the North American, converging, and the social, including legal, classifications that resulted from those encounters.⁸ The Native American social status and identity, along with that of the disabled and the citizenry, and indeed any number of other social identity types, is, in part, an effect of law.

As early as 1981 and as part of his Storrs Lectures at Yale Law School, Clifford Geertz had already indicated the importance of adopting a constitutive perspective toward law. "[L]aw," Geertz said, "rather than a mere technical add-on to a morally (or immorally) finished society, is . . . an active part of it . . . [l]aw, even so technocratized a variety as our own, is, in a word, constructive; in another, constitutive; in a third, formational."⁹ From Geertz's perspective, the then predominant, essentially descriptive conception of culture as a relatively static inventory of norms and traditions was insufficiently complex, insufficiently interactive. Geertz and those who came after taught that culture, including legal institutions, should be conceptualized as a far more dynamic social phenomenon, continuously forming and being formed by human thought and social behavior.¹⁰ Hence, just as it Page 826 is, at some level, human agency that sanctions and constructs legally differentiated treatment of citizens and aliens, the able- bodied and the disabled, and Native and other Americans, the legal institution of such differentiated cultural positions in turn reinforces and further constructs the social identities of the individuals so described. According to this view, colorfully described by Naomi Mezey as "the dance of mutual constructedness," legal institutions play a vital role in shaping individuals and communities, and individuals and communities in turn shape the law.¹¹ We may in truth determine the content of our law, but our law will also play a significant role in determining who and what we are.

Even more ominously, because we so readily internalize legally constructed categories, values, and definitions, we are rarely specifically conscious of their influence on our perceptions.¹² In this sense, constitutive theory is related to the critical legal studies movement, though arguably more as sibling than as descendant.¹³ The most fundamental commonality in the two traditions, owing to their common derivation from legal realism more generally, is their rejection of a purely internal approach to conceptualizing law. In the wake of realism's challenge to legal formalism, critical legal scholars argued that the allegedly authoritative principles said to underlie law are not only practically but also necessarily internally inconsistent and that legal decisions are, therefore, inevitably exercises in political power.¹⁴ Yet, where critical legal studies grew out of realism's rejection of legal objectivity, constitutive theory developed from the felt need of sociolegal scholars to further conceptualize law's role within social life.¹⁵ And while critical legal studies was nearly everywhere criticized for its incessant tendency toward abstraction, constitutive theory is nearly always introduced within a particular social context.

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Yet, while the constitutive approach to understanding the relationship between law and social identity has been applied now in a substantial variety of contexts, from disability to indigenous cultural groups to citizenship, race, and colonialism, and so on, there remains within sociolegal scholarship only the most limited sense of how, why, and to what extent legal institutions actually constitute aspects of our social identities.¹⁶ In large part, this gulf in the literature seems to be the result of the apparent boundaries of the respective disciplines within which these theories typically are developed and articulated. Whereas the influence of legal institutions on social identity has been almost exclusively the province of sociolegal studies, the nature of human social identity and the social cognitive processes that give rise to social identity have been studied most extensively from within the fields of cultural sociology and social and cognitive psychology. In order to more fully discern the social cognitive mechanisms that enable legal institutions to constitute aspects of our social identities, then, this article suggests the need for a turn toward these other disciplines. As social psychologist Karmela Liebkind has suggested:

The nature of the reality we are trying to understand is not dependent on the ad hoc division of academic disciplines . . . if the domain of ethnic identity is ever to become illuminated by the joint efforts of different social and behavioural sciences, some amount of theoretical and empirical coordination and cooperation is imperative, thus cutting across the territorial chauvinism of the various disciplines participating in this venture. Social psychologists definitely need to know, not only what sociology and psychology, but also what anthropology, philosophy, and political science have to say about ethnic identity.¹⁷

The reverse obviously is true as well. Sociolegal scholars stand to gain from learning what social and cognitive psychology have to say...