Cognitive Biases and International Law: What’s the Point of Critique?

Abstract

One of the main aims of critique is to work towards progressive change. What are critical scholarship’s assumptions about how that change should happen? And do they hold? In the present chapter, I focus on three characteristic traits of critique: seeing law as part of the problem; emphasizing law’s relative indeterminacy; and carving out contingencies in the law’s past. Critique has exposed and countered several dynamics that render the present state of affairs more natural, necessary, and just. Social psychological research has notably drawn attention to people’s longing to live in a world that they consider just—which is a world in which things appear to happen for a reason. Research has further drawn attention to the bias of hindsight and dynamics of ex post rationalization. In short, there are many concerns, tropes, and even vocabularies that are shared between critical legal scholarship and social psychological research. Yet, divides between the two still remain deep.