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Anarchy, ordering principles and the constitutive regime of the international system

Published online by Cambridge University Press:  12 July 2019

MOHAMED S HELAL*
Affiliation:
Michael E. Moritz College of Law, 55th W. 12th Ave., Columbus, OH, USA
*
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Abstract:

Anarchy is the conceptual cornerstone of international relations theory and international law scholarship. Anarchy is described as the ordering principle of the international system, it is used as a variable that explains state behaviour, and the international legal order is depicted as anarchic and decentralised. This article questions this privileged status of anarchy. It challenges the designation of anarchy as the ‘ordering principle’ of the international system, and proposes an alternative theoretical construct – the Constitutive Regime of the International System – that performs the functions of the ‘ordering principles’ of the international system. This Constitutive Regime consists of three components. The first is a principle of differentiation that identifies the constituent units of the international system. The second is a theory of world order that prescribes policies and principles that are necessary to maintain order within the system, and the third are the secondary rules of international law that generate the international law-making and law-enforcement processes. In short, the Constitutive Regime provides a novel theoretical vernacular to understand and conceptualise the normative foundations of the international system.

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Articles
Copyright
Copyright © Cambridge University Press 2019 

Introduction

Anarchy is a foundational concept in international relations theory. It is designated as the ordering principle of the international system, it is employed as a key variable in explaining and predicting state behaviour,Footnote 1 and is considered a ‘transhistorical fact of life’ in international politics.Footnote 2 Anarchy is also a cornerstone of international law. The absence of a central authority that monopolises the global law-making and law-enforcement processes means that the international legal order is depicted as a decentralised, horizontal, and anarchic system.Footnote 3

Despite its centrality to international relations and international law, the concept of anarchy remains undertheorised. Its definition is indeterminate, its content is uncertain, and its nature has not been adequately explored by scholarship in either international relations or international law.Footnote 4 This article problematises anarchy and challenges the claim, originally made by Kenneth Waltz and widely accepted in international relations theory, that anarchy is the ‘ordering principle’ of the international system. Instead, this article argues that the ordering principles of the international system are embodied in what I call the Constitutive Regime of the International System. This regime constitutes the international system. It determines the composition of the system and identifies the units entitled to engage in international politics, it establishes the parameters of interaction between those units, and generates the mechanisms of international law-making and law enforcement. The Constitutive Regime of the International System is a theoretical construct that incorporates, streamlines, and builds on various strands of scholarship that investigate the normative foundation of the international system. It provides a holistic account of the background assumptions and political conventions that constitute the international system, shape its structure, and order relations between its constituent units.

In addition to identifying and conceptualising the ordering principles of the international system, the Constitutive Regime of the International System also provides a theoretical vernacular for describing and understanding different forms of change in world order. This is especially pertinent in an era in which the international system is undergoing a profound transformation caused by the combination of a shift in the global balance of power due to the rise of non-Western states, the expanding influence of non-state actors in global governance, and the emergence of populism in Western democracies, which are factors that have precipitated a crisis of world order.Footnote 5

This article consists of four parts. Part I presents the principal claim of this article. It challenges the assumption that anarchy is the ordering principle of the international system and outlines the contours of the Constitutive Regime of the International System. Part II highlights the contributions of this article by situating the Constitutive Regime within international relations and international law scholarship that has explored the normative foundations of the international system. Part III describes the content of the Constitutive Regime and explains the functions that it performs. Finally, Part IV explores the rise and fall of Constitutive Regimes and reflects on the origins of the current crisis of world order.

I. On the search for ‘a small number of big and important things’

Kenneth Waltz’s Theory of International Politics is often described, by its proponents and detractors alike, as an elegant and parsimonious representation of the operation of the international system.Footnote 6 Waltz’s objective was not to design a theory that explains every event in international politics. Rather, his intention was to construct a systemic – as opposed to a reductionist – theory that identifies the effects of the structure of the international system on the behaviour of states.Footnote 7 According to Waltz, the structure of the international system is composed of three elements. The first is the ordering principle of anarchy that is defined as the ‘absence of agents with system-wide authority’,Footnote 8 which means that the units within the international system recognise no authority superior to themselves. The second element is the functional differentiation of those units that make up the system, while the third is the distribution of capabilities among those units.Footnote 9 Since the constituent units of the system are states that, in Waltz’s view, perform identical functions, the second element of the structure is irrelevant, which leaves anarchy and the distribution of capabilities as the operative elements of the structure.Footnote 10

This tripartite conceptualisation of the structure of the international system was not intended as an accurate rendition of reality. Rather it is an idealised image of international politics that purges the complexities and richness of political history to isolate and highlight the structural features that influence state behaviour.Footnote 11 For Waltz and his progeny of neorealists, the power and potency of this abstract concept of structure, especially the ordering principle of anarchy, is that it explains the recurrent patterns of competition and conflict that pervade international politics across time and space. As long as the system remains anarchic, all states, whatever the identity or ideology of their leaders and regardless of their domestic politics, are subjected to the ‘constraining and disposing force’ of the structure of the international system.Footnote 12 The cumulative effect of the structure is that international affairs is a realm of realpolitik in which states selfishly pursue their individual interests, especially ‘preserving and strengthening the state’,Footnote 13 even if to the detriment of other states.

Kenneth Waltz’s concept of ‘ordering principles’ and his identification of anarchy as the structural form of the international system are central tenets of international relations theory.Footnote 14 Anarchy is ‘unthinkingly accepted as the structural ordering principle of international systems … By the mid-1990s, anarchy had become ‘‘naturalised’’ across much of the discipline; treated as a taken-for-granted foundational assumption.’Footnote 15 Similarly, across the academic aisle, international lawyers almost unanimously describe the international legal order as anarchic and decentralised.Footnote 16 Contemporary international legal scholarship adopted the assumption of anarchy without engaging in the ‘great debates’ about the operation of the international system that dominated international relations.Footnote 17 Instead, international lawyers have focused on describing, criticising, and developing the doctrinal content of the field.Footnote 18 This abdication in favour of international relations specialists of theorising about international politics is surprising given the contributions of philosopher-lawyers such as Grotius, Pufendorf, Wolff, Vattel, Oppenheim and Schwarzenberger, to discussions about the nature of the international system. Therefore, in addition to examining what Richard Ashley called ‘the anarchy problématique’ that dominates international relations,Footnote 19 this article hopes to highlight to international lawyers the importance of theorising about the international system to generate better understandings of the political context within which international law operates.

This article interrogates the concept of ‘ordering principles’ and challenges the designation of anarchy as the ordering principle of the international system. It also questions established definitions of the term ‘international system’ that are often depicted as anarchic. This article proposes an alternative theoretical construct – the Constitutive Regime of the International System – that functions as the ordering principles of the international system, which determines its structure and establishes the parameters within which the units of the system interact.

An ‘ordering principle’ determines ‘the arrangement of the parts of the system’.Footnote 20 It is an ‘organizational concept’ that establishes the pattern according to which the units within a system are juxtaposed and combined.Footnote 21 Anarchy, however, does not and cannot perform that function. In fact, anarchy is not a principle at all.Footnote 22 Rather, anarchy is a descriptor that denotes the absence of a central authority that monopolises law-making, law enforcement, and dispute resolution in the international system. To Waltz and most scholars of international relations and international law, ‘the parts of international-political systems stand in relations of coordination. Formally, each is the equal of all others.’Footnote 23 This means that the parts of the system, i.e., the states inhabiting the system, are juridically equal and, therefore, arranged horizontally. Anarchy, however, cannot be the source of either the equality of states or their horizontal alignment. It is tautological to posit that the origin of the horizontality of the system and the formal equality of states, and thus, the reason that the international system is anarchic, is anarchy itself. The horizontal distribution of authority, which generates the anarchic structure of the system, must, therefore, result from some deeper, broader norm or principle.

Definitions of the ‘international system’ that is described as being anarchic are also fundamentally flawed. International relations scholars from various theoretical traditions have developed strikingly similar and equally inadequate definitions of the international system. To Waltz, ‘international-political systems, like economic markets, are formed by the coaction of self-regarding units … No state intends to participate in the formation of a structure by which it and others will be constrained. International political-systems, like economic markets, are individualist in origin, spontaneously generated, and unintended.’Footnote 24 Hedley Bull, a leader of the English School of International Relations and a critic of neorealism,Footnote 25 similarly describes the international system as being created when ‘two or more states have sufficient contact between them, and have sufficient impact on one another’s decisions, to cause them to behave – at least in some measure – as parts of a whole’.Footnote 26 Recent definitions of the international system that recognise the role of non-state actors also assume that systems are spontaneously created by combining previously separate units: ‘taken collectively, states and non-state actors co-existing and interacting at any point in history form an international system’.Footnote 27

These definitions of the international system are incomplete and intellectually anemic. The existence of the states (and/or non-state actors) that constitute the system is simply assumed; the designation of states (and/or non-state actors) as the constituent units of the system is similarly accepted as a given; there is no explanation for why interactions between states, but not other types of actors, count towards the creation of a system; and the nature and intensity of the interactions that are required to create the system are also undefined.Footnote 28 Moreover, describing the system as ‘anarchic’ does not identify the origin of the juridical equality of states, which generates the anarchic nature of the system. This is especially perplexing in light of the differences in the capabilities of states. Why the power differentials between states do not upend the equality of states and overturn the anarchic structure of the system is left unconsidered.Footnote 29

In short, anarchy cannot, as some scholars describe it, be the ‘deep structure’ of the system.Footnote 30 Nor can other structural forms, such as hierarchy and heterarchy that scholars have proposed as alternatives to anarchy,Footnote 31 serve as the ordering principles of the system. Like anarchy, these terms are descriptive labels that express either the centralisation of authority – i.e. hierarchy, or, the uneven distribution of authority among entities that are neither super- nor sub-ordinate to each other – i.e. heterarchy. In either case, the anarchic, hierarchic, or heterarchic arrangement of the parts of a system must emanate from elsewhere.

The answer, this article posits, is that the international system is predicated on a set of intersubjective assumptions that provide the ordering principles of the system and that constitute its ‘deep structure’. I call these assumptions the Constitutive Regime of the International System. This regime is composed of three elements. The first is the principle of differentiation, which identifies the constituent units of the system – i.e. the actors authorised to engage in international affairs, and determines the distribution of authority between those units. By determining the distribution of authority, the principle of differentiation generates the structure of the system. If authority is decentralised and the units are considered co-equals, the system is anarchic, but if authority is concentrated with some actors that are entitled to dominate other actors, the system becomes hierarchic or imperial, while if authority is shared and multilayered the system becomes heterarchic. The principle of differentiation could also generate systems that exhibit combinations of these patterns of authority. The second component is the theory of world order, which is a world view that prescribes principles and policies that are considered necessary for maintaining order in the system and that determine the parameters governing the interactions of the units operating within the system. The third component is the secondary rules of international law, which are the rules and processes of law-making and law enforcement in the international system. The Constitutive Regime, to borrow Stanley Hoffmann’s phrase, is the ‘law of the political framework’.Footnote 32 It is the normative foundation that structures the system and establishes the ground rules for interaction between its members.

Before proceeding, it is necessary to outline the intellectual ambitions of this article. In response to criticism that the Theory of International Politics failed to explain a wide range of events in international affairs, Kenneth Waltz clarified that his objective was to identify ‘a small number of big and important things’ that shape state behaviour.Footnote 33 The Constitutive Regime of the International System is not dissimilar. It is not a theory of everything. It does not explain the content of every rule of international law, or the structure of every international institution, or every event in international politics. It is, however, ‘one big thing that explains a small number of important things’. The Constitutive Regime is an heuristic instrument that explains the structure of the international system. It provides an account of how the structure of the international system is determined by intersubjective assumptions the allocate authority between the constituent units of the system. It shows that the structure of the international system is not static, but a historically contingent construct that is determined by deeper intersubjective assumptions.Footnote 34 The Constitutive Regime is also an instrument of systematisation. It uncovers the background world view that shapes and justifies the rules, institutions, and practices of international politics. It shows that underlying these rules, institutions, and practices that often appear unrelated and fragmented are coherent (or, at times, competing) world views. The Constitutive Regime, therefore, functions like DNA; it embodies the genetic code of the international system.

The Constitutive Regime is not, however, a normative theory of the international system.Footnote 35 It does not espouse specific substantive values nor does it advocate a preferred vision of world order or any particular conception of justice. It is an ethically neutral construct. It is flexible enough to encompass systems as diverse as the hierarchic Sino-centric system of the seventeenth century,Footnote 36 Napoleon’s revolutionary, republican, and imperial systems, and the post-Napoleonic reactionary system,Footnote 37 and the post-World War II Liberal World Order. The Constitutive Regime identifies and describes the ordering principles of international systems without passing normative judgment on those principles. This is because a morally pernicious system predicated on racialised or colonial principles of differentiation or that operates on the bases of an ethically reprehensible world view is no less ‘systemic’ than a morally laudable system.

II. Of systems, structures and constitutions: Surveying the scholarly terrain

The claim that the international system operates on the bases of foundational or constitutive norms is not entirely novel. Therefore, it is necessary to highlight how this article contributes to, builds on, and differs from scholarship that has investigated the normative foundations of the international system. After all, in proposing the Constitutive Regime of the International System, my intention is not to contribute to the conceptual congestion that often afflicts international law and international relations scholarship, but to offer a theoretical construct that synthesises and simplifies existing scholarship and introduces unexplored elements of the normative substructure of the international system.

This article builds on two core contributions of constructivist scholarship. The first is the claim that the structure within which international affairs occurs is the product of shared meanings and social understandings, while the second is the importance of problematising the constitutive, as opposed to the causal, impact of rules and norms in international affairs.Footnote 38 Constructivists, however, generally accept the neorealist presumption of anarchy as the ordering principle of the international system;Footnote 39 a proposition that I reject. Where constructivists diverge from realists on anarchy is in their powerful and persuasive critique of the realist claim that ‘international anarchy is the principal force shaping the motives and actions of states’.Footnote 40 Instead, Alexander Wendt argues that ‘political culture is the most fundamental fact about the structure of an international system, giving meaning to power and content to interests, and thus the thing we need most to know to explain a “small number of big and important things”’.Footnote 41 I disagree. Before identifying the prevalent ‘political culture’ among the units of an anarchic system, it is necessary to determine why those particular units are the principal actors of the system whose culture and preferences matter and to trace how the allocation of authority among those units created an anarchic (or hierarchic or heterarchic, etc.) system in the first place. These are the ‘most fundamental fact(s)s’ about the international system that the Constitutive Regime of the International System embodies.

This article is also influenced by the English School of International Studies which, as Andrew Hurrell explains, generated a large body of scholarship based on the insight that ‘central to the “system” is a historically created, and evolving, structure of common understandings, rules, norms, and mutual expectations’.Footnote 42 English School theorists have not, however, contested the neorealist assumption that anarchy is the fundamental structural feature of the system. Indeed, the English School’s canonical tome, Hedley Bull’s magnum opus, is titled The Anarchical Society. Instead, the ‘central motif’ of the English School is the claim that, despite its anarchic structure, order is maintained in the system because its units are organised into what has been alternately called the ‘society of states’, the ‘international society’, or the ‘system of states’.Footnote 43 What makes the system a society is, first, that states share ‘common interests in the elementary goals of social life’,Footnote 44 and second, the existence of ‘primary institutions’ (war, diplomacy, the Great Powers, balance of power, international law) that facilitate relations between states and contribute to maintaining order.Footnote 45

This article builds on these English School insights by taking a theoretical step-back. It argues that preceding any consensus on elementary goals and underlying the primary institutions of society are a set of constitutive norms, which are embodied in the Constitutive Regime of the International System. These norms are essential for the existence and operation of an international society because they identify the members that constitute the society, determine the distribution of authority amongst those members, and establish the law-making and law-enforcement mechanisms. These constitutive norms, in other words, empower actors to engage in international politics, partake in diplomacy, act as great powers, wage war, and make international law. In a sense, therefore, the Constitutive Regime is, to use English School terminology, the primary institution of international society. This constitutive dimension of the normative architecture of the international system is largely ignored by the English School. Indeed, Hedley Bull merely alludes, virtually en passant, to ‘the complex of rules that states what may be called the fundamental or constitutional normative principle’ which he identified as ‘the idea of a society of states … as the supreme normative principle of the political organisation of mankind’.Footnote 46 Neither Bull nor later English School theorists expanded on or elaborated this insight. This article addresses this blind spot by constructing a theoretical account of those constitutive norms.

This article also builds on the work of scholars of both international law and international relations who have theorised that the international system is based on constitutive or foundational norms. Some scholars have hinted at the existence of background principles that constitute the normative foundation of the international system without exploring the matter further. For instance, Jeffrey Dunoff and Joel Trachtman noted that certain norms exist at a ‘meta-constitutional’ level that constitute ‘the basic decisions about the fundamental structure of society [which] precede and determine the structuring of legal constitutions’.Footnote 47 Similarly, Jack Donnelly discussed the ‘constitutional structure of an international society’, which is ‘an ensemble of fundamental, society-wide rules, practices, and roles that enable, prohibit, constrain, permit, facilitate, or encourage particular kinds of action and interaction among the participants in international relations’.Footnote 48 Writing in this journal, Thomas Müller used terms similar to Donnelly’s to define ‘constitutional structures’ as a ‘set of fundamental and prioritised principles and rules that serves as a framework for the self-ordering of international societies, or more abstractly relations between polities’.Footnote 49

John Ikenberry further contributed to theorising about constitutional foundations of the international system.Footnote 50 Writing on the political and historical circumstances in which constitutional norms are formed, Ikenberry categorised constitutional norms as a form of institutional, as opposed to substantive, bargaining. The latter involves bargaining ‘over distributive outcomes, where states struggle over the distribution of benefits in specific relationships’.Footnote 51 Constitutional norms, however, are not issue-specific agreements. Rather, they are agreements on ‘the rules of the game – that is the parameters within which states will compete and settle disputes over specific issues’.Footnote 52

These definitions and descriptions of norms that are labelled as ‘constitutional’, ‘meta-constitutional’, or ‘fundamental and prioritised’ are underdeveloped. The existence of these norms is presented as a general theoretical insight without expanding on their nature or content, and their functions are described in broad, generic terms. For example, the ability to ‘enable, prohibit, constrain, permit, facilitate, or encourage particular kinds of action’, which Donnelly attributes to constitutional norms, are functions that apply to all of international law. This fails to distinguish with sufficient precision the distinctive constitutive nature of these norms. In particular, these definitions overlook the principal functions that the Constitutive Regime of the International System performs; namely, the identification of the constituent units of the system, the articulation of their basic rights and competences, the elaboration of a theory of world order that governs interactions between them, and the creation of law-making and law-enforcement rules.

Christian Reus-Smit partially remedied these omissions by arguing that the international system is based on ‘meta-values defining legitimate statehood and rightful state action’.Footnote 53 Similarly, Ian Clark suggested that ‘core principles of legitimacy constitute international society legitimacy defines both rightful membership and rightful conduct, it specifies the key requirements for international society’.Footnote 54 Writing separately, Alec Stone and Samantha Besson highlighted another function of constitutional norms in the international system which Reus-Smit and Clark do not discuss. According to Stone, ‘a constitution denotes a body of metanorms, rules that specify how legal norms are to be produced, applied, and interpreted. Metanorms are thus not only higher-order but prior, organic norms – they constitute a polity.’Footnote 55 Similarly, Besson defined a ‘thin constitution’ as an ‘ensemble of secondary rules that organize the law-making institutions and processes in a given legal order’.Footnote 56

The Constitutive Regime of the International System proposed in this article refines, develops, and expands on these understandings of the constitutional or foundational norms of the international system.

First, as a semantic matter, referring to these norms, as Reus-Smit does, as determining ‘legitimate statehood’ creates the misimpression that states are the only conceivable constituent unit of international systems. Instead, I prefer the theoretically capacious concept of the principle of differentiation as an instrument that could identify states or any other form of organising human communities as the constituent units of the international system.

Second, one weakness of existing discussions of constitutional or foundational norms is that different types of constitutive norms are examined separately. Reus-Smit and Ian Clark, for instance, focused on the norms of ‘rightful membership’ and ‘rightful conduct’ in the international system, while Stone and Besson explored the law-making rules of the international system. A main contribution of the concept of the Constitutive Regime is that it combines these constitutive functions into a single, holistic theoretical construct. It highlights the connection, symbiotic relationship, and causal priority between identifying the members of the system and elaborating the rules of international law-making and law enforcement. It also clarifies the role of the theory of world order in shaping the rules of international law-making and law enforcement. As discussed below, I argue that the principle of differentiation, which identifies the constituent units of the international system, and the theory of world order, which prescribes the policies and principles necessary for order within the system, ultimately determine the content of the secondary rules of international law.

Third, this article highlights the role of ‘authority’ in determining the composition of the international system and shaping its structure. The composition of an international system and its structure are, in essence, determined by decisions about the allocation and distribution of authority. Any international system is populated by various types of actors and entities that engage, to varying degrees, in international affairs. The principle of differentiation, which is one of three components of the Constitutive Regime of the International System, codifies a social consensus regarding the types of actors or entities that are endowed with the authority to engage in international affairs. The principle of differentiation also determines the structure of the international system by codifying a social consensus about the distribution of authority among the units authorised to engage in international affairs. If it adopts a centralised distribution of authority between the actors or entities entitled to engage in international affairs, the system becomes hierarchic, while if it adopts a decentralised distribution of authority, the system becomes anarchic.

Fourth, Donnelly’s claim that the constitutional norms of the international system ‘enable, prohibit, constrain, permit, facilitate, or encourage particular kinds of action and interaction among the participants in international relations’ and Müller’s argument that ‘constitutional structures’ serve as a ‘framework for the self-ordering of international societies’ are unduly broad. All international law and all international regimes can be described in these terms. Therefore, this article argues that, in addition to a principle of differentiation, the Constitutive Regime of the International System includes a theory of world order. This theory of world order regulates state behaviour, not by prescribing or proscribing policy in specific areas, such as security or trade, but by articulating a coherent world view or an overarching ideological vision that provides a justificatory narrative for policies and practices in the various areas of global governance.

Fifth, the Constitutive Regime of the International System provides a theoretical vocabulary to conceptualise the different forms of change in international systems. This article distinguishes between change within a system and change of a system. The latter occurs when the constituent unit of an international system – which, as discussed below, is the dominant method of organising human societies and controlling territory – is replaced. On the other hand, change within a system occurs when the extant theory of world order is challenged or when new units and actors exercise authority within a system without replacing the established constituent units of an international system. This is particularly relevant given current developments in the contemporary international system. Today’s world is witnessing a confluence of phenomena that challenge the structure and operation of the international system. These include the shifting balance of global power, the appearance of novel law-making processes, and the rise of various actors that exercise different forms of authority within a system that continues to be dominated by territorial states. The Constitutive Regime provides an intellectual tool that conceptualises and explains how these developments affect the structure and operation of the international system.

III. The constitutive regime of the international system

The Constitutive Regime of the International System is a set of intersubjective assumptions that provide the normative foundation of the international system. It is composed of a principle of differentiation, a theory of world order, and the secondary rules of international law.Footnote 57 The Constitutive Regime, thus, consists of three components. The first two are the principle of differentiation and the theory of world order, while the third is the secondary rules of international law.

The Constitutive Regime of the International System is analogous to what Mark Tushnet calls ‘constitutional regimes’. These regimes, which govern domestic political systems, are broader than the written Constitution and the corpus of constitutional doctrine and precedent. A constitutional regime consists of ‘a reasonably stable set of institutions through which a nation makes its fundamental decisions over a sustained period, and the principles that guide those decisions’.Footnote 58 In other words, constitutional regimes establish the normative parameters of politics. As Tushnet explains, ‘these institutions and principles provide the structure within which ordinary political contention occurs’.Footnote 59

Like a domestic constitutional regime, the Constitutive Regime of the International System provides the normative framework within which international politics is exercised by embodying elementary assumptions about the structure of the international system. Unlike Tushnet, however, I employ the term ‘constitutive’ as opposed to ‘constitutional’ to describe this regime. This terminological choice is driven, first, by a recognition of the difficulty of defining terms like constitution, constitutional, constitutionalism and constitutionalisation with clarity and concision,Footnote 60 and second, it reflects an appreciation of the normative-weightiness of these terms. Especially when used in the literature on Global Constitutionalism, these terms express a normative agenda that seeks to promote individual autonomy, human rights, and the rule of law in a globalised, interdependent, and institutionally fragmented international system.Footnote 61 The Constitutive Regime of the International System, however, is a theoretical construct that makes no such normative prescriptions. Rather, the term ‘constitutive’ is intended to communicate the ethical neutrality of the Constitutive Regime of the International System.Footnote 62

The term regime should be readily recognisable. It is borrowed from international relations Regime Theory, which explains how certain areas of transnational relations, such as trade, security, or environmental protection, are regulated by a set of rules, principles, and decision-making procedures.Footnote 63 A Constitutive Regime functions like a regime. It is a set of principles, norms, and rules that are broadly accepted and that perform a governing function. In this case, however, the function of this regime is constitutive not regulative, and its scope is systemic not issue-specific.Footnote 64

The Constitutive Regime is logically antecedent to the international system.Footnote 65 Without background norms that identify the members of the system, determine their rights and competences, and establish the mechanisms of international law-making, any examination of the system would be incomplete and incomprehensible. In other words, underlying the flags, anthems, embassies, and the pomp and pageantry of statehood, is an intersubjective assumption that designates states – as opposed to empires, tribes, the Catholic Church, the Islamic Ummah, or some other form of organising human societies – as the constituent units of the international system. It is the Constitutive Regime of the International System that endows Germany, Gambia, and Georgia, but not Google, Greenpeace or the US State of Georgia, with the authority to establish embassies, issue passports, fly ensigns on airplanes and ships, wage war, make peace, achieve détente and maintain entente, and practice the balance of power. Moreover, the elementary rule that international law emanates from state consent, is merely an expression of the intersubjective assumption that states, and not, for instance, international organisations, NGOs, corporations, or individuals, are the primary lawmakers of the international system and that their consent is necessary for the creation of valid rules of international law.

Constitutive Regimes are creations of Great Powers. Throughout history, every power that succeeded in establishing hegemony over an international system has configured the basic norms that govern that system – i.e. the Constitutive Regime of that system – in a manner that served the values and interests of that hegemonic power.Footnote 66 Therefore, while every international system is predicated on a Constitutive Regime, the normative content and ethical orientation of Constitutive Regimes will vary depending on the interests and values of the Great Powers of that particular system. The concept of the Constitutive Regime, therefore, is purely functional.Footnote 67 Once its content is articulated by the Great Powers and accepted, either by acquiescence or coercion, by the other actors in the system, it performs the function of constituting the international system and becomes the dominant approach to governing the system.

Constitutive Regimes are not static constructs. As the balance of power shifts and as new participants engage in international affairs, the content of the Constitutive Regime is revisited to reflect new realities in international politics. New actors and new entities periodically emerge and challenge the established configuration of the international system. As these actors and entities acquire more power and exercise more influence, they could gradually be accepted as centres of legitimate authority in the international system thereby reconfiguring its structure. International organisations, corporations, NGOs, actors engaged in ‘private ordering’,Footnote 68 global governance networks,Footnote 69 and even terrorist organisations like ISIS,Footnote 70 all, to varying degrees, challenged the state-centric Constitutive Regime of the twentieth century. Eventually, some of these actors were endowed with different forms and degrees of authority to participate in an international system in which states remain the primary actors.

The next three sections define and discuss the three components of the Constitutive Regime of the International System.

The principle of differentiation

International politics is often imagined as a ceaseless competition for power.Footnote 71 That is not entirely inaccurate. Before the pursuit of power can commence, however, the actors that are engaged in power politics must be identified. As John Ruggie presciently notes, this involves determining who is the ‘constitutive unit of the new collective political order. The issue here is not who has how much power, but who could be designated as a power.’Footnote 72 That is the function of the principle of differentiation.Footnote 73 It determines who the members of the system are, how these units qualify for membership, and what rights and competences are entailed by virtue of membership in the system.

The principle of differentiation fulfils this function by determining the distribution of authority in the international system.Footnote 74 It identifies the units that are endowed with the authority to participate in international affairs and establishes the extent of that authority. Accordingly, the principle of differentiation determines the structure of the system. If authority is decentralised and divided equally, the system is anarchic. If, on the other hand, authority is centralised and certain actors are endowed with the right to subordinate other actors, the system becomes hierarchic or imperial.Footnote 75 If, however, the system is composed of, not only many actors, but multiple forms of actors that are not subordinate to each other and that exercise different types and degrees of authority, the system becomes heterarchic.Footnote 76 In short, anarchy, hierarchy, heterarchy, or whatever other typology is employed to describe the structure of the international system, is generated by the principle of differentiation which establishes the distribution of authority in the system.Footnote 77

The principle of differentiation could also generate a system combining multiple structural forms. Europe of the Middle Ages, for instance, has long been recognised as an international system composed of multiple, competing structural forms.Footnote 78 The current international system also exhibits elements of anarchy, hierarchy, and heterarchy. Regardless of size or strength, the international system operates on the basis of the juridical equality of all states, which is a relatively recent innovation of the post-colonial era.Footnote 79 In other words, formally, anarchy prevails between states, which are the principal members of the international system. Other actors, such as international organisations are subordinate to states. The UN, AU, EU, OAS, OSCE and the other international organisations that populate the international system are creations of states, they are endowed with legal personality by states, and are granted the right to exercise varying degrees of authority by states.Footnote 80 The relationship between international organisations and states, therefore, is hierarchic. In parallel, heterarchic relations have emerged in recent years as a range of non-state and hybrid actors, such as private ordering entities, NGOs, and networks of experts and bureaucrats,Footnote 81 have acquired and exercised increasing authority that is not directly delegated from states or any other super-ordinate actors.Footnote 82

Whatever the structure of the international system, a particular type of unit will constitute the principal participant in the system. The identity, nature, and authority of those units, which are the constitutive units of the international system, is expressed by the principle of differentiation. The constituent unit of an international system will be the dominant ‘conflict group’ of that particular historical era.Footnote 83 Conflict groups are modes of organising human society.Footnote 84 They are collectivities, such as tribes, clans, racial groups, religions, states, kingdoms or empires that establish and exercise political authority over individuals and territory. These collectivities are dubbed ‘conflict’ groups because human beings are loyal to these groups, organise their lives around membership in these groups, and are prepared to fight and die for these groups. As patently apparent from the historical record, the type of conflict groups that constitute international systems is variable.Footnote 85 A single international system may also be composed of multiple forms of conflict groups that exercise various degrees and different forms of authority.Footnote 86 Whatever their form, number, or nature of their authority, the signal characteristic of conflict groups is that they establish and exercise the authority to govern a human collectivity that inhabits a territorial space.Footnote 87 That authority need not be exclusive or complete; it could be shared among multiple layers and actors and various centers of authority that are functionally differentiated.Footnote 88 Ultimately, however, the dominant conflict groups that constitute an international system will represent a political arrangement that exercises authority over individuals occupying a territorial locale.Footnote 89

The emergence of a conflict group and its ascendance as the dominant mode of organising human society is rarely peaceful. In this process, which often occurs over an extended period, pre-existing modes of organising human society are challenged and dismantled, often by force. The history of statehood is a testament to the physical coercion and ideational compulsion that accompanies the creation of a conflict group and its consolidation of power.Footnote 90 As a particular type of conflict group amasses greater power over other types of conflict groups, the most powerful of these ascendant conflict groups will formulate the principle of differentiation that will govern the international system. These leading powers will design the principle of differentiation in their own image, thereby legitimising their new-found power and securing their status as the principal participants in international affairs, and denying their competitors the ability to legitimately engage in international relations.Footnote 91 The principle of differentiation, in other words, ratifies the realities of power. It consecrates the victory of a particular type of conflict group and legitimises its position as the dominant mode of organising human society.Footnote 92

The principle of differentiation also furnishes the justification for exclusion, subordination, or even oppression within an international system. Because it identifies the constituent units of an international system, the principle of differentiation creates insiders and outsiders.Footnote 93 The former are those units that fit the model designed by the dominant conflict groups. These insiders are accepted as full members of the system and are endowed with the rights and capacities appertaining thereto. The outsiders, on the other hand, are different types of conflict groups that do not meet the prerequisites of membership in the system, and accordingly, are denied the rights and capacities enjoyed by the constituent units of the system. Conflict groups that do not qualify for membership of an international system may, especially if they possess sufficient material capabilities, retain their independence and avoid being incorporated or subordinated into the system. Those conflict groups may even constitute a system that exists separately from other systems. Indeed, history provides numerous examples of parallel coexisting regional systems composed of a wide variety of conflict groups.Footnote 94 On the other hand, as the history of colonialism and the expansion of the European international system demonstrate, conflict groups that are brought into an international system, but that are denied full membership of the system, become shunned as illegitimate forms of political authority that may be conquered, controlled, governed, or simply allowed to exist beyond the pale of the international system.Footnote 95

As the element of the Constitutive Regime that determines the membership of the international system and the distribution of authority within the system, the principle of differentiation includes two axes of systemic change: change of a system, and change within a system.Footnote 96 The former – change of a system – refers to the transformation of a system that occurs when the dominant form of conflict group is replaced.Footnote 97 Decolonisation is an example of a change of a system. It marked the demise of one form of conflict group – Empire – that dominated the international system for several centuries and signalled the rise of the territorial state as the principal mode of organising human societies throughout the world. Decolonisation also restructured the international system: the hierarchic relationships between metropoles and colonies were replaced by an anarchic, horizontal relationship between coequal states. Change within a system, on the other hand, occurs when authority is redistributed among the units of the system without challenging the status of the dominant conflict group as the principal unit of the system. The contemporary allocation of different degrees of authority to international organisations and to non-state actors, such as corporations or civil society organisations, is an instance of change within a system. As long as states remain the dominant mode of controlling territory and governing human societies, the fundamental state-centric nature of the system remains unchanged and it retains its anarchic form. However, as authority is devolved to non-state actors, the system becomes multi-structural; while inter-state relations remain anarchic, relations between other non-state actors exhibit the features of hierarchy and heterarchy.

The identity of the conflict group chosen as the primary actor in the international system could be codified in a legal instrument or it could be manifested in political practices. Whether enshrined in a legal instrument or displayed in political practice, the principle of differentiation determines which actors or entities are endowed with international legal personality,Footnote 98 thereby identifying who has the right to have rights and the obligation to bear duties under international law.Footnote 99

The 1933 Montevideo Convention on the Rights and Duties of States is a prime example of the legal expression of the principle of differentiation.Footnote 100 It stipulates that states are the principal actors in international affairs, outlines the criteria of statehood, and enunciates their basic rights, obligations, and competences. It is logically implausible and historically inaccurate, however, to assume that the Montevideo Convention was the originator of the concept and criteria of statehood or that it established states as the main actor in international affairs. After all, the convention is a treaty that was concluded by states that already existed and enjoyed the full legal competence to contract treaties. It is similarly flawed to assume that the criteria for statehood originated in customary international law and that the Montevideo Convention merely codified pre-existing customary rules. This is because that necessarily presumes the pre-existence of states and presumes that these pre-existing states already enjoyed the capacity to create rules of customary international law, including criteria for statehood. In short, while the definition and criteria of statehood are codified in conventional and customary international law, the content of these rules emanates from pre-existing intersubjective assumptions that identify states as the constituent unit of the international system, establish the prerequisites for statehood, and endow states with legal personality.

The principle of differentiation also articulates the basic rights and obligations of the constituent units of the international system. By virtue of their membership in the system, states, or whichever actors are recognised as the constituent units of the system, enjoy fundamental rights and are bound by basic obligations. The words ‘rights’ and ‘obligations’ are, of course, ubiquitous in international law, which might create the misimpression that the Constitutive Regime of the International System includes the entire corpus of regulatory rules of international law. However, the adjectives ‘basic’ and ‘fundamental’ are intended to indicate that these rights and obligations are not simple regulatory rules that are generated by the normal law-making processes. Indeed, these rights and obligations precede international law. These rights and obligations are essential characteristics of the constituent units of the international system. They do not emanate from legal instruments; rather, these rights and obligations are inherent to the status of these entities as the constituent units of the system.

To clarify this claim, consider the current state-centric international system. States enjoy certain basic rights and obligations such as the independence of states, the exclusive competence of states in matters falling within their domestic jurisdiction, and the juridical equality of states.Footnote 101 These rights and obligations are codified in instruments such as the UN Charter and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States.Footnote 102 These rights and obligations do not, however, owe their existence to these documents. Rather, these rights and obligations are part of the principle of differentiation. They express an intersubjective assumption regarding the nature of statehood and the basic rights and obligations of states that predates the legal instruments in which these rights and obligations are enunciated. Indeed, these basic rights and obligations are corollaries of statehood.Footnote 103 They are an intrinsic part of what it means to be a state and constitute an integral element of the concept of statehood.

The competences of states are similarly defined by the principle of differentiation. For instance, the principle codified in Article 6 of the Vienna Convention on the Law of Treaties (VCLT) that ‘[e]very State possesses capacity to conclude treaties’Footnote 104 is a legal expression of an intersubjective assumption that states, by virtue of their status as the constituent units of the international system, are empowered to participate in international affairs and have the legal capacity to generate international law. This is what James Crawford calls the ‘plenary competence’ that enables states to ‘perform acts, make treaties, and so on, in the international sphere’.Footnote 105 This competence is codified in international legal instruments, but is not derived from these instruments. These competences, like the basic rights and obligations of states, are a priori to international law. The Vienna Convention could not have created that capacity of states to contract treaties, because the Vienna Convention is itself a treaty, which means that the capacity of states to contract treaties must have predated the Vienna Convention. Nor could the origin of the capacity to contract treaties be a rule of customary international law that was simply codified in the Vienna Convention. This is because, as a matter of logical necessity, that customary rule that endowed states with the capacity to contract treaties must be based on an antecedent rule that empowered states to create rules of customary international law, including the rule that states may contract treaties. Therefore, the next logical question becomes: what rule of international law bestowed upon states the capacity to create rules of customary international law.Footnote 106

The answer, this article posits, is the intersubjective assumptions that are constitutive of the entire international system, including international law. These assumptions are the Constitutive Regime of the International System, which includes the principle of differentiation that identifies the constituent units of the system and outlines the basic rights and competences of these units.

The theory of world order

The principle of differentiation generates ‘a positional picture, a general description of the ordered arrangement of a society written in terms of the placement of the units’.Footnote 107 The second component of the Constitutive Regime of the International System, which is the theory of world order, sets the parameters of how these units relate to and engage with each other. Without a theory of world order, an international system and the units inhabiting it remain lifeless, motionless. Anarchy, hierarchy, heterarchy, or however else the units of a system are arranged, does not determine how and on what terms these units interact. That is the function of the theory of world order. It is, to use a term coined by Adam Watson, the raison de système.Footnote 108 It outlines a set of principles and policies that are assumed necessary to maintain order within the system.

Therefore, even an anarchic international system that lacks a world government, is not a normative vacuum. As Laura Sjoberg explains, ‘within a formal anarchical structure of global politics, there are a number of ordering principles – often invisible, often unwritten – that constrain the identities and behaviours of actors as well as the processes of interaction between them’.Footnote 109 The theory of world order is the component of Constitutive Regime that embodies these deep substantive values underlying the international system.

The theory of world order is analogous to what Laurence Tribe calls the ‘dark matter’ of the US Constitution.Footnote 110 These are political axioms, fundamental postulates, and foundational propositions about the nature of the American republic that underlie the written Constitution and that shape the practice of politics and law in America.Footnote 111 Although they are echoed in the text and structure of the Constitution, in court decisions, and in political parlance, the ultimate source of these principles is a social consensus regarding the basic principles and values of America’s body politic.Footnote 112 The international system operates on the bases of principles that perform a similar function. These principles – which I call a theory of world order – are articulated by the Great Powers of the international system and are assumed to be necessary for preserving stability in the system. These principles are, in essence, a world view; a lens through which the Great Powers understand the world, interpret history, and lay out a normative road map for how international life ought to be managed and governed.Footnote 113

The theory of world order is an under-explored element of the normative foundations of the international system. Although some scholars have discussed concepts that approximate what I call the theory of world order, this aspect of the norms that govern the international system and structure the practice of politics within the system has not been the subject of systematic study. One scholar whose early writings indicate a recognition that the international system operates on the basis of norms that correspond to what I call the theory of world order is Henry Kissinger. In A World Restored he posited that a stable system is founded on the balance of power and an accepted ‘concept of legitimacy’, which is a political understanding among the Great Powers regarding ‘the nature of workable arrangements and about the permissible aims and methods of foreign policy’.Footnote 114 Building on Kissinger’s insights, later scholars argued that relations between the constituent units of the international system are governed by widely shared definitions of legitimacy that determine the limits of rightful conduct.Footnote 115

The theory of world order is similar, but not identical, to this notion of legitimacy. The theory of world order does not merely establish the permissible aims of foreign policy or set the limits of rightful conduct. The theory of world order is normatively denser. It is, as aforementioned, a holistic world view or ideology that formulates substantive policies and principles that are considered essential to maintaining order in an international system. The theory of world order, in other words, determines the normative orientation of the system, it embodies a vision for justice and provides a moral compass to guide the practice of politics. It articulates a ‘master narrative’ that justifies the means and methods of managing and governing the international system.Footnote 116 The theory of world order, therefore, furnishes the ‘generative grammar of international authority’.Footnote 117 It provides ideological justification for the rules and institutions of international law; it offers a moral vernacular that legitimises the political practices of the members of the international system, and rationalises the distributive outcomes that result from the operation of the rules, institutions, and policies of the system.

The theory of world order is, therefore, the source of adjectives like liberal, neoliberal, illiberal, imperialist, communist, fascist, Islamist, or Sino-centric that are used to describe international systems. Indeed, in many historical instances, the distinguishing feature of an international system was not the identity of its constituent units – i.e. whether those systems were composed of tribes, empires, or states – but the values underlying those systems and the policies that were implemented to govern relations between the constituent units. Hence, while Napoleon, Metternich, Lenin, and Hitler, all sought to establish European or worldwide orders, the distinguishing feature of these projects of continental or global hegemony was the world view (whether tyrannical or benevolent) that animated these projects – i.e. their theories of world order.Footnote 118 Similarly, the designation of the post-World War II international system as a ‘liberal world order’ reflects a theory of world order adopted and propagated by the US that assumed that maintaining systemic order and stability required establishing a rules-based system that operated through multilateral organisations that were open to all states.Footnote 119

Like the principle of differentiation, the theory of world order is determined by the Great Powers of each historical era. These powerful actors will articulate a theory of world order that reflects their normative commitments and their perceptions regarding the prerequisites of maintaining systemic order and stability. One factor that influences the content of the theory of world order is the domestic governance structure of the Great Powers.Footnote 120

The values that underlie social relations within the Great Powers – in other words, the ‘dark matter,’ ideology, philosophy, or religion animating their domestic polities – will supply the world view according to which the Great Powers will govern the international system. Great Powers, in other words, will seek to construct the international system in their own image. These powers may also articulate a theory of world order that reflects their formative national experiences, their geographic realities, their strategic interests, or the history of their engagement with the international system. As a theoretical construct, the Constitutive Regime of the International System has no predetermined moral orientation. Its normative content will vary depending on the interests and values of the Great Powers.

Also like the principle of differentiation, the theory of world order is an axis of systemic change. Changes in the theory of world order, which is caused either by a realignment of the systemic balance of power or by a shift in the values and interests of the established Great Powers, will lead to a change within an international system. Although the composition of a system may remain constant, changes in the theory of world order significantly affect the instruments of policy and the patterns of relations between the units within an international system. For instance, Metternich’s theory of world order that posited that European stability required preserving conservative monarchical rule justified multiple interventions to abort popular uprisings.Footnote 121 Similarly, as the influence of the papacy receded and the power of religion as an overarching world view waned in seventeenth century Europe, raison d’état, as opposed to religious affiliation, became a principal justification for the policies of states.Footnote 122

The incentive driving Great Powers to articulate a theory of world order is their desire to transform their preponderant power into legitimate authority. Legitimacy is a valuable commodity in both domestic and international politics.Footnote 123 All politically dominant actors seek to maintain their supremacy by ensuring that their dominance and exercise of power are perceived as legitimate. This is because controlling a polity solely by coercion is unsustainable. It ‘imposes heavy costs on the controllers … The efficiency advantages of authority probably motivate the commonly observed impulse of the powerful to try to legitimate their power.’Footnote 124 Therefore, like a domestic political elite that justifies its power and privilege by invoking broader moral principles, thereby perpetuating its dominance,Footnote 125 a hegemonic power will articulate a theory of world order that legitimises its leadership of the international system and justifies the policies and practices it implements, thus preserving its hegemony.Footnote 126

The secondary rules of international law

The third component of the Constitutive Regime of the International System is the secondary rules of international law. Legal systems, as HLA Hart wrote, are composed of primary rules of obligation and secondary rules.Footnote 127 The former are prescriptions and proscriptions, while the latter are rules about rules. They ‘specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively ascertained’.Footnote 128 Secondary rules, therefore, confer law-making authority, establish law-enforcement powers, and institute dispute resolution mechanisms.

Law is a social necessity. The coexistence and interaction of individuals in society, even the most primitive societies, generates a need to devise rules to govern relations among these individuals.Footnote 129 International systems are no different. As independent conflict groups engage in regular contact, it becomes necessary for these conflict groups to articulate rules to manage their manifold relations.Footnote 130 Indeed, as Arthur Nussbaum remarked in his seminal history of international law, the ‘phenomena of [international] law have been conspicuous since the dawn of documentary history, that is, from the fourth millennium B.C.’.Footnote 131 Obviously, the term ‘international law’ was not known in ancient international systems; that term is a European innovation of eighteenth century vintage. Nonetheless, even if not called ‘international law’, all international systems operated on the bases of rules that regulated relations between their constituent units.Footnote 132 Historians of international law have shown that ancient civilisations, including in Egypt, Mesopotamia, Greece, the Indian subcontinent, and China, engaged in organised relations with allies and rival powers on the bases of a system of legal rules.Footnote 133 In short, all international systems, whatever the nature of their constituent units, function on the bases of some set of rules however substantively simple, rudimentary in nature, or religious in origin.

Secondary rules are essential for the existence and operation of the rules that regulate relations between the members of the international system. Any set of primary rules requires a set of secondary rules to enable the creation of the primary rules. The secondary rules determine how (and by whom) the primary rules of the system are made, how disputes are settled, and how the rules are enforced and by whom. Like the principle of differentiation and the theory of world order, the secondary rules of international law are designed by the Great Powers of the international system. These powers recognise a particular process as law-creating, agree to some method of dispute resolution, and accept some method of law enforcement. In other words, like HLA Hart’s rule of recognition, the secondary rules of international law are a matter of social fact. They are articulated by the leading powers of each historical period and accepted as authoritative by the constituent units of the international system. The foundation of international law, in other words, is the broad acceptance by the constituent units of the international system of the secondary rules of international law. Secondary rules can take an infinite variety of forms.Footnote 134 They can be nothing more than the belief that the edicts of a Pharaoh, Emperor, or Czar shall count as law, or that a breach of a treaty shall be punished by the gods.Footnote 135 However simple or superstitious, the signal feature of the secondary rules of international law is that they provide a mechanism for the ‘conclusive identification of the primary rules’ in the international system.Footnote 136

The secondary rules of international law are ontologically subsequent to the principle of differentiation and the theory of world order. The identity of the lawmakers and the prerogatives of the law-enforcers of the international system are dependent on the principle of differentiation and the theory of world order.Footnote 137 The international system of the early-twentieth century illustrates this determinative relationship between the principle of differentiation and the theory of world order on one side and the secondary sources of international law on the other. Because states are the primary participants and beneficiaries of the international political process, the secondary rules of international law were designed with a heavy state-centric emphasis.Footnote 138 States were the primary authors of treaties, and it was up to states to grant other actors, such as international organisations, the power to contract treaties. The acts of states and the statements of state representatives carried more weight in generating customary international law than the positions and policies of other actors, even those wielding greater material power. The state-centric nature of the principle of differentiation also explains the crucial role of state consent in generating the primary rules of international law. A system composed of co-equal sovereign states that recognise no supreme authority generated the rule that the validity of legal rules is dependent on the consent of those sovereign states.Footnote 139 Thus, the President of Palau, a tiny Pacific island state, enjoys, at least formally, greater law-making authority, than the CEO of the vastly richer WalMart with its over two million employees. This capacity to engage in law-making, which is enjoyed by all states, regardless of power, size, or wealth, is a reflection of a statist principle of differentiation that accords plenary competences to states, and states alone.

The principle of differentiation and the theory of world order also determine the content of the concept of sovereignty, which is the cornerstone of international law.Footnote 140 By identifying the constituent units of the system, the Constitutive Regime determines the beneficiaries and bearers of sovereignty, and by articulating theory of world order, it generates the corollary prerogatives and powers of sovereignty. In other words, the Constitutive Regime tells us who is sovereign and what they can and cannot do with sovereignty. Without these background assumptions that are provided by the Constitutive Regime of the International System, sovereignty remains an inchoate concept; an empty shell.Footnote 141

IV. Constitutive moments and constitutive crises

The Constitutive Regime of the International System is a living concept. Its content is articulated by the Great Powers of every historical era, but then those powers and units that inhabit a system are continuously constituted and reconstituted by the Constitutive Regime. As the units within the system continue to operate on the bases of the principle of differentiation, theory of world order, and secondary rules of international law underlying the system, the authoritativeness of the Constitutive Regime of that system is reasserted, which in turn, reconfirms the standing, rights, and competences of those units. Simultaneously, the adherence of the constituent units of an international system to the terms of a Constitutive Regime means that its content is constantly being reproduced by the activities of those units.Footnote 142 In other words, as constructivist theorists have insisted, the ordering principles of the international system and its constituent units are locked in a relationship of mutual dependence and constant reconstitution.Footnote 143

The success of a particular conflict group or specific power in dictating the content of the Constitutive Regime of the International System never spells the end of history. Every system includes the disenfranchised, the disenchanted, and the dissatisfied. Every polity includes actors espousing alternative visions and competing world views that challenge the established orthodoxy. At certain historical junctures pressure mounts to revisit the normative foundations of the international system. This pressure may originate from the emergence of a new conflict group that seeks to establish itself as the dominant mode of organising human society. This pressure may also emanate from a shift in the balance of power among existing conflict groups. As the topography of power shifts and as normative winds change, opposition to the dominant Constitutive Regime will gain traction. These are periods of constitutional crises that can lead to change within a system or, if the standing of the constituent unit of the system is challenged, that can cause the total change of an international system. These are periods when global political contestation is not limited to specific issues or particular conflicts. Rather, the normative foundation of the entire international system becomes a site of contestation.

The contemporary international system is experiencing a period of constitutional crisis. The Constitutive Regime of the current international system was designed by the US in the post-Cold War years. The theory of world order of this Constitutive Regime was based on the Liberal Peace Theory. This theory, which is a mainstay of American foreign policy, is predicated on the presumption that democratic states that are economically interdependent are less likely to wage war against each other. Therefore, to preserve order and prevent war, Liberal Peace Theory prescribes promoting the democratisation of states and the liberalisation and integration of their economies.Footnote 144 Accordingly, the principle of differentiation of the post-Cold War Constitutive Regime was configured to identify liberal democratic states as the constituent units of the international system. The legitimacy of states increasingly depended on the democratic credentials and human rights record of their governments.Footnote 145 States that failed to fulfil this standard of legitimate statehood risked losing the privileges of membership in the international system.Footnote 146

This Constitutive Regime of the post-Cold War years is currently in crisis. It is being challenged by a tectonic shift in the global balance of power the manifestations of which include China’s re-emergence, Russia’s resurgence, India’s growing prosperity, and the economic success of states like Brazil, South Africa, South Korea and Turkey.Footnote 147 These non-Western powers do not adhere to the Liberal Peace Theory. These states espouse a traditional state-centric Westphalian image of the international system and reject attempts to adopt a principle of differentiation and a theory of world order that identifies liberal democratic states as the sole legitimate constituent units of the international system.Footnote 148 The Constitutive Regime of the post-Cold War order is also being challenged by the rise of nativist, pseudo-nationalist, and populist parties in Western societies. This populist revolt has demonstrated the depth of the discontent towards the ideas and values embodied in the post-Cold War Constitutive Regime, including free trade, environmental protection and combatting climate change, pro-immigration policies and multiculturalism, and multilateralism. The importance of this ongoing populist backlash is that it has afflicted the very heart of the Western world. Many within the societies that articulated the post-Cold War Constitutive Regime appear to be rejecting the normative foundation of the international system they sponsored and led.

Given the current state of world politics, it is reasonable to predict that the international system will experience an extended constitutional crisis. One of the principal arguments of this article is that determining the content of the Constitutive Regime of the International System is an act of elite engineering. Today’s international system, however, is No One’s World. Footnote 149 Power is dispersed to the extent that there is no clear centre of political gravity in the system. In this politically weightless world it is unlikely that any single state or coalition of states will wield sufficient power to wholly determine the content of the Constitutive Regime of the International System. Instead, for the foreseeable future, our world will be governed by a decaying Constitutive Regime that is no longer accepted by either its creators or consumers, but to which no clear constitutive alternative has emerged.

Acknowledgements

For reading and commenting on earlier drafts of this article, the author wishes to thank John Ruggie, Ian Hurd, Cinnamon Carlarne, the editors of Global Constitutionalism, two anonymous reviewers, and the participants in the Power and International Law Workshop (Northwestern University – 4 May 2018) and the Challenges to Global Constitutionalism Workshop (WZB Berlin Social Science Center – 5–6 July 2018).

Footnotes

*

Assistant Professor of Law, Moritz College of Law & Affiliated Faculty, Mershon Center for International Security Studies – The Ohio State University.

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35 A normative theory, as Mervyn Frost explains, asks ‘one central question: “What in general is a good reason for action by or with regard to states?”’ (original emphasis). In other words, a normative theory problematises the ethical justifications for state (or non-state) policy. See Frost, M, Towards a Normative Theory of International Relations (Cambridge University Press, Cambridge, 1986) 86.CrossRefGoogle Scholar This article neither asks that question nor does it posit ethical justifications for policy.

36 See Ringmar, E, ‘Performing International Systems: Two East-Asian Alternatives to the Westphalian Order’ (2012) 66 International Organization 1.Google Scholar

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53 Reus-Smit, C, ‘Constitutional Structure of International Society’ (1997) 51 International Organization 555, 559.CrossRefGoogle Scholar

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57 This part draws on and develops the claims made in the following article: MS Helal, ‘The Crisis of World Order and the Constitutive Regime of the International System’ (2019) 46 Florida State University Law Review.

58 Tushnet, M, The New Constitutional Order (Princeton University Press, Princeton, NJ, 2003) 1.CrossRefGoogle Scholar See also Tushnet, M, ‘Forward: The New Constitutional Order and the Chastening of Constitutional Aspiration’ (1999) 113 Harvard Law Review 29, 31.Google Scholar

59 Ibid 1.

60 Möllers, C, ‘Pouvoir Constituant – Constitution – Constitutionalism’ in von Bogdandy, A and Bast, J (eds), Principles of European Constitutional Law (2nd edn, Hart Publishing, 2009) 169Google Scholar (‘[t]he ambiguity of the term ‘‘constitution’’ is notorious’).

61 Kumm, M et al., ‘Editorial: How Large Is the World of Global Constitutionalism?’ (2014) 3 Global Constitutionalism (2014) 1, 3CrossRefGoogle Scholar (explaining that the ‘trinitarian mantra of the constitutionalist faith’ is to reorient international law towards a ‘commitment to human rights, democracy, and the rule of law’).

62 The Constitutive Regime is not, therefore, a constitutive theory or a normative theory as the term is used by some political theorists to mean a moral narrative that promotes a particular approach to governing the international system that can be used to justify or critique specific policies or practices in international relations. See O’Loughlin, A, Overcoming Poststructuralism (Palgrave MacMillan, Basingstoke, 2014) 7289.Google Scholar

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64 A general theme underlying the concept of the Constitutive Regime proposed here is the distinction between regulatory and constitutive rules, which is associated with John Searle. See Smith, B (ed), John Searle (Cambridge University Press, Cambridge, 2003).Google Scholar As Searle and others explained, regulatory rules take the form of prescriptions or proscriptions, while constitutive rules define identities and roles, assign authority, and empower actors. See Cherry, C, ‘Regulative Rules and Constitutive Rules’ (1973) 23 The Philosophical Quarterly 301.CrossRefGoogle Scholar Regulative rules have been the subject of intense study by theorists of international law and international relations, while constitutive rules have received relatively lesser attention. This is a theoretical blind spot that this article seeks to address.

65 Dunoff and Trachtman (n 47) 18 (the ‘basic decisions about the fundamental structure of society precede and determine the structure of legal constitutions’).

66 Kagan, R, The World America Made (Vintage Books, New York, NY, 2012) 5Google Scholar (‘[e]very international order in history has reflected the beliefs and interests of its strongest powers’).

67 Jeffrey Dunoff and Joel Trachtman highlighted the utility of a functionalist approach to global constitutionalism, which ‘has the virtue of directing attention to the appropriate inquiry: the purposes that international constitutional norms are intended to serve’ (n 47) 10. Dunoff and Trachtman identified three functions of constitutional norms: (1) enabling the formation of international law, (2) constraining the formation of international law, and (3) filling gaps in domestic constitutional law. The functions of the Constitutive Regime proposed here are significantly broader. It is not limited to providing norms for the creation and operation of international law. Rather, it provides a foundation for the entire international system, including international law.

68 Private ordering is the exercise of regulatory authority by non-governmental entities. See Schwarcz, SL, ‘Private Ordering’ (2002) 97 Northwestern University Law Review 319.Google Scholar

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73 Differentiation is a theory of systems’ structure. It was developed by sociologists as a theoretical tool to identify and classify different forms of social organisation and to analyse how the structure of authority in human societies evolves. See Alexander, J and Colomy, P (eds), Differentiation Theory and Social Change (Columbia University Press, New York, NY, 1990);Google Scholar Luhmann, N, ‘Globalization or World Society? How to Conceive of Modern Society’ (1997) 7 International Review of Sociology 67, 69.CrossRefGoogle Scholar International relations scholars use differentiation theory as a heuristic instrument to describe the composition and structure of the international system and to analyse how its composition and structure change over time and space. See Buzan, B and Albert, M, ‘Differentiation: A Sociological Approach to International Relations Theory’ (2010) 16 European Journal of International Relations 315, 318.CrossRefGoogle Scholar

74 The meaning of ‘authority’ is the subject of a voluminous literature spanning several disciplines. I will not attempt to define authority here, but suffice it to say that I use it to mean the legitimate and recognised right of individuals or political actors to rule over other individuals or political actors. See generally Hall, J, ‘Authority and the Law’ (1958) 1 NOMOS 58.Google Scholar

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77 This argument challenges an assumption shared by some international relations scholars that, as Ian Hurd writes, ‘the traditional understanding of anarchy in international relations is the absence of “legitimate authority”’. This assumption leads him to assert that ‘to the extent that a state accepts some international rule or body as legitimate, that rule or body becomes an “authority”: and the characterisation of the international system as an anarchy is unsustainable’. Hurd, I, ‘Legitimacy and Authority in International Politics’ (1999) 53 International Organization 379, 381.CrossRefGoogle Scholar An anarchic realm is not devoid of authority. Rather, it is a system in which authority is decentralised and distributed evenly among co-equal units. Therefore, the determinant of the structure of an international system is not the presence or absence of authority, but the distribution of authority among the units inhabiting the system.

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[C]onsider the following different types of basic political arrangements: a nomadic tribe, a dynasty, a republic, a kingdom, an empire, a federation, a confederation, a communist society, a socialist state. (The list could easily be extended). Any of the above mentioned social orders, if it is to be an order at all … must provide ways of coping with violence, contract and property. The precise way I which the different social arrangements deal with these common concerns will obviously vary, but what is not open to doubt is that they must provide some solution to the problems mentioned.

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112 These are ‘legal norms and principles that form fundamental underlying precepts for our polity – background norms that contribute to and result from the moral development of our community. Public values appeal to conceptions of justice and common good, not to the desires of one person or group.’ Eskridge, W Jr., ‘Public Values in Statutory Interpretation’ (1989) 137 University of Pennsylvania Law Review 1007, 1008.CrossRefGoogle Scholar

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135 Nussbaum (n 131) 3.

136 Hart (n 127) 96.

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