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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
MOHAMED S HELAL*
Affiliation:
Michael E. Moritz College of Law, 55th W. 12th Ave., Columbus, OH, USA
*
†Email: [email protected]
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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.

Keywords

anarchyinternational law theoryinternational relations theoryneorealismordering principles
Type
Articles
Information
Global Constitutionalism , Volume 8 , Issue 3 , November 2019 , pp. 470 - 505
Copyright
Copyright © Cambridge University Press 2019 

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

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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.

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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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