Law, Cognition, and Identity
This article represents a preliminary attempt to answer these and related questions, and thereby to comprehend on a deeper level the interactive constitutive relationship between law and social identity. Legal institutions, sociolegal research has shown, play a role in the constitution of social identities. But social identity itself is the consequence of a complex arrangement of sociological, social, and cognitive psychological phenomena. Hence, a deeper and more complete understanding of law's constitutive influence requires bridging advances in sociolegal studies to research in these related fields. To that end, Part II, just below, relates the processes of legal categorization to human cognitive categorization of the social world, suggesting that the categorization of persons that results from law should be associated with, and indeed be conceptualized as partially derivative of, social cognitive categorization. Part III then considers the essential nature of social categories, drawing an analogy between, on one hand, traditional and contemporary conceptions of such categories within cognitive psychology and, on the other, the doctrines of legal formalism and realism. Part IV takes up the question of the nature of social identity and asks why it is that legal institutions constitute the particular collective identity types that they do constitute, turning for a preliminary answer to treatments of the function of social salience within social and cognitive psychology. Part V explores the processes of legal and other social labeling that result in the construction of collective identity types, describing in particular law's role in that process as an agent of socialization. In conclusion, the article locates law within an array of other socially constitutive institutions and it points the way toward further interdisciplinary research regarding the role of legal institutions in the constitution of social identity. For, in virtue of the recent efforts of sociolegal scholars, we now know that law is not only an aspect but also an engine of culture. Understanding the inner workings of that engine, however, will require a sustained turn toward the theory of social cognition.
Eric J. Mitnick, Law, Cognition, and Identity, 67 LA. L. Rev. 823 (2007).