The Sociology of International Law
University of Toronto Law Journal, Vol. 55, No. 4, October 2005
Posted: 15 May 2005
International law is a social phenomenon that reflects and aims to guide a variety of interactions in the international arena. Sociological analysis casts new light on an important dimension of international law and enriches our understanding of social factors involved in the creation and implementation of international rules. The idea that international law and other societal processes are profoundly interlinked is not new but sociological theories are seldom employed in mainstream international law scholarship. Sociological theories redefine the realm of international law and yield valuable insights regarding better legal mechanisms for coping with modern transnational challenges. Not of lesser importance, sociological methods may further our understanding of the social limits of international law. In light of the underlying interrelationships between international law and other social factors, this article invites scholars to analyze international legal rules in their wider social context and incorporate sociological theoretical tools into mainstream international law scholarship.
Different sociological theories lead to different conceptions regarding the nature and goals of international law, the desirable structure of international legal regimes as well as their content. Thus, for instance, the structural-functional approach to international law calls for the construction of inclusive legal regimes that include uniform provisions binding all members with minimum variations or exceptions. On the other hand, the ingrained aversion of symbolic interactionism towards uniformity and integration indicates that the desirable structure of international regimes should allow the members greater extent of discretion. Under this approach, legal regimes should include minimum mandatory principles and various optional instruments that are open to voluntary accession of each member.
Sociological analysis may also engender new insights regarding long-term processes in international law. Thus, the discussion on the fundamental structure-agency debate in sociological theory and its counterpart in international legal literature reveals a theoretical divergence. Analysis of the factors that underlie this theoretical discrepancy indicates that the emphasis of contemporary international law on the need for order and integration may well change in the future (and some buds of such theoretical reversal may be discerned in several international domains).
Keywords: International law, international law theory, sociology, international relations
JEL Classification: K33, A14
Suggested Citation: Suggested Citation