Why we should see international law as a structure: Unpicking international law’s ontology and agency
| Author | Adriana Sinclair |
| DOI | 10.1177/0047117820916223 |
| Published date | 01 June 2021 |
| Date | 01 June 2021 |
| Subject Matter | Articles |
https://doi.org/
International Relations
2021, Vol. 35(2) 216 –235
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DOI: 10.1177/0047117820916223
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Why we should see international
law as a structure: Unpicking
international law’s ontology
and agency
Adriana Sinclair
University of East Anglia
Abstract
This article identifies how three dominant ideas of international law (as a process, an institution
and a practice) see its agency, concluding that all three share a reluctance to see international
law as doing anything more than enabling the operation of other actors, forces or structures.
This article argues that we should see international law as a structure because it possesses both
the surface structure of rules, principles, processes, personnel and material elements of the
international legal system and a deep structure of values that sits deep within our subconscious. As
Shklar’s idea of legalism shows us, legalism plays a powerful role in shaping all our understandings
of ourselves and the world that surrounds us. Seeing international law as a structure enables
us to see how it locates actors within a social hierarchy and how it behaves in similar ways to
recognised structures like capitalism and racism.
Keywords
agency, international law, law as an actor, law’s agency, legalism, structure
1. Introduction
The debate over the power of international law has been a defining feature of interna-
tional legal theory and International Relations (IR) theory accounts of international law
for over two decades.1 The two disciplines’ very different conceptions of power have
been a source of conflict and confusion. As Bianchi notes political scientists accuse inter-
national legal theorists and lawyers of being ‘inattentive to the element of power.
Corresponding author:
Adriana Sinclair, School of Politics, Philosophy, Language and Communication Studies, University of East
Anglia, Arts Building, room 3.76, Earlham Road, Norwich Research Park, Norwich, NR4 7TJ, UK.
Email: Adriana.sinclair@uea.ac.uk
Article
Sinclair 217
Lawyers, in turn, would retort that the authority of law must be distinguished from the
force of power. It would perhaps help both sides to realize that law is power’.2 This arti-
cle argues that before this is possible, we must first work out what international law’s
agency is: what types of agency does it have? Is it an actor? Can it have an independent
effect on events? First of all, however, agency itself must be defined. For the purpose of
this article, agency is defined as the ability of an actor to exert influence, affect the out-
come of a process or event, to make happen or prevent an event or action.3 ‘Actor’ here
is not restricted to humans but can include non-humans. Drawing upon Actor-Network
Theory (ANT), I speak of ‘actants’. An actant is anything that is ‘granted to be the source
of action’4 and there is no assumption that an actant must be human and so the notion of
what it means to ‘act’ is broadened. Seeing actants as possessing agency is central to the
argument that international law has agency and will be expanded upon below.
This article outlines three of the most common ways of understanding international
law that are common in the IR/international law (IL) literature and teases out their, often
implicit, ideas of international law’s agency. The first sees international law as a chan-
nel, the second as an institution and the third as a practice.5 The article then goes on to
argue that these different ways of understanding international law fail to see the true
extent of its causal power. Despite the negative perception of structures held by most
mainstream thinkers in IR-IL, there are important benefits to be gained from seeing
international law as a structure. This is more than just a heuristic device, however.
Viewing international law as a structure enables us to see the full extent of international
law’s agency and thereby offers a more accurate and nuanced account of what interna-
tional law can and does do.
2. International law as a process: expanding law’s agency
Bianchi, while entering the usual caveats about the diversity and complexity of interna-
tional legal theory, offers a definition of a ‘classical international legal positivism’:
international law is a system of objective principles and neutral rules that emanate from States’
will, either directly through treaty or indirectly through custom, and ... States are the primary
subjects of the international legal order ... a strict test of legal validity must be passed for a rule
to be conceived as a binding rule of law, and ... extra-legal considerations (economic, social,
moral, or political) are alien to legal analysis.6
The 20th century’s rejection of such black-letter views of law saw a gradual widening of
law’s ontology, in two respects. First, it widened the scope of international law beyond
the state and beyond rules and principles. Second, it saw extra-legal considerations as
playing an important role. As the ontology of law widened, so too did the assessment of
law’s agency.
For process scholars, the traditional understanding of international law as rules and
principles is too narrow and misses out important questions about how those rules come
to be and how they function in practice. Shifting international law’s ontology from rules
to process has significant repercussions. Most significantly, analysis must start much
earlier by looking at how and why particular legal rules emerge in the form they do.
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