ABSTRACT
The conceptualisation of ‘actors’ engaging in rule-making – defined here as those who adopt acts, practices and/or standards in the exercise of legal authority – is central to theorising power, autonomy, influence and even legitimacy in rulemaking beyond the nation state. It is central to the ‘how’, the ‘who’ and the ‘where’ of such rule-making. However, as Jupille and Caparaso state, there is no consensus in scholarship on what it means to be an actor, despite its centrality to discussions on rule-making, power and influence, across disciplines.1 This is particularly the case in rule-making beyond the nation state, where the actors may either be fledging or manifold and where the rule-making practices may vary substantially from conventional practices. To view an institution as an actor in their own right remains perhaps an ‘unpopular’ outlook or even a technically inaccurate one.2 Legal scholarship is no different and employs formal, limiting criteria to assess what we may frame here loosely as ‘actorship’ qualities, such as legal personality, legal authority to act and institutional autonomy. They remain heavily rooted in an attachment to the Trias Politica.3 Yet such formalism, if we may call it that, may pose many limitations. Consider those seeking to conceptualise actors
1 More broadly, see Elaine Fahey (ed.), The Actors of Postnational Rule-Making: Contemporary Challenges of European and International Law (Routledge, 2015). On the EU: Christopher Hill, ‘The Capability-Expectations Gap, or Conceptualizing Europe’s International Role’ (1993), 31 (3) JCMS 305; Joseph Jupille and James Caporaso, ‘States, Agency and Rules: The European Union in Global Environmental Politics’ in Carolyn Rhodes (eds), The European Union in the World Community (Rienner, 1998), 213.
