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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.

References

1 Powell, R, ‘Review: Anarchy in International Relations Theory: The Neorealist-Neoliberal Debate’ (1994) 48 International Organization 313–44.CrossRefGoogle Scholar

2 Prichard, A, ‘Anarchy, Anarchism and International Relations’ in Kinna, R (ed), The Continuum Companion to Anarchism (Continuum International Publishing, New York, NY, 2012) 96.Google Scholar

3 Whytock, C, ‘Thinking beyond the Domestic-International Divide: Toward a Unified Concept of Public Law’ (2004) 36 Georgetown Journal of International Law 155, 157Google Scholar (political science and international law accept a ‘structural/functional distinction’ between domestic and international law, wherein the latter is ‘an anarchic system relying on decentralized enforcement’).

4 Havercroft, J and Prichard, A, ‘Anarchy and International Relations Theory: A Reconsideration’ (2017) 13 Journal of International Political Theory 252, 262CrossRefGoogle Scholar (noting that the ‘nature of anarchy ends up being untheorized’).

5 See generally Haass, R, A World in Disarray (Penguin Press, New York, NY, 2017);Google Scholar Luce, E, The Retreat of Western Liberalism (Atlantic Monthly Press, New York, NY, 2017);Google Scholar Müllerson, R, Dawn of a New Order (I.B. Tauris & Co. Ltd, New York, NY, 2017);CrossRefGoogle Scholar Welsh, J, The Return of History (Anasi, Canada, 2016).Google Scholar

6 Topper, K, ‘The Theory of International Politics? An Analysis of Neorealist Theory’ (1998) 21 Human Studies 157, 170.CrossRefGoogle Scholar

7 Reductionist theories ‘explain international outcomes though elements and combinations of elements located at national or subnational levels’, while a systemic theory ‘deals with the forces that are in play at the international, not at the national, level’. Waltz, K, Theory of International Politics (Waveland Press Inc., Long Grove, IL, 1979) 60, 71.Google Scholar

8 Ibid 88.

9 Ibid 93, 97.

10 Barkdull, J, ‘Waltz, Durkheim, and International Relations: The International System as an Abnormal Form’ (1995) 89 American Political Science Review 669, 670.CrossRefGoogle Scholar

11 Devetak, R, Critical International Theory: An Intellectual History (Oxford University Press, Oxford, 2018) 41–5.Google Scholar

12 Waltz (n 7) 69.

13 Ibid 117.

14 Schmidt, B, The Political Discourse of Anarchy (State University of New York Press, New York, NY, 1998) 15Google Scholar (noting that ‘today anarchy is the most important theoretical concept in the field … This theme of anarchy is not an external category of historical description, but an idea that has served as a connecting discursive thread throughout the field’s evolution.’).

15 Donnelly, J, ‘The Discourse of Anarchy in IR’ (2015) 7 International Theory 393, 401–2.CrossRefGoogle Scholar

16 Cassese, A, International Law (2nd edn, Oxford University Press, Oxford, 2005) 5Google Scholar (‘[t]he relations between the States comprising the international community remain largely horizontal. No vertical structure has as yet crystallized’) (original emphasis).

17 Lake, D, ‘Theory is Dead, Long Live Theory: The End of the Great Debates and the Rise of Eclecticism in International Relations’ (2013) 19 European Journal of International Relations 567.CrossRefGoogle Scholar

18 Arend, AC, Legal Rules and International Society (Oxford University Press, Oxford, 1999) 42Google Scholar (works on international law ‘immediately delve into the international legislative process without first taking account of the nature of the international system itself’).

19 Ashley, R, ‘Untying the Sovereign State: A Double Reading of the Anarchy Problematique’ (1988) 17 Millennium: Journal of International Studies 227.CrossRefGoogle Scholar

20 Waltz (n 7) 88.

21 Ibid 89.

22 A principle is ‘a basic rule, law, or doctrine; esp., one of the fundamental tenets of a system’. B Garner (ed), Black’s Law Dictionary (10th edn, Thomson West, 2014) 1386.

23 This is distinguished from the hierarchical relations of super- and sub-ordination that, according to Waltz, are the hallmark of domestic political systems. Waltz (n 7) 88.

24 Ibid 91.

25 Hoffman, S, ‘Hedley Bull and His Contribution to International Relations’ (1986) 62 International Affairs 179.CrossRefGoogle Scholar

26 Bull, H, The Anarchical Society (Columbia University Press, New York, NY, 1977) 9–10.Google Scholar

27 Grieco, J, Ikenberry, J and Mastanduno, M, Introduction to International Relations (Palgrave, London, 2015) 10.CrossRefGoogle Scholar

28 Barry Buzan has theorised about the type and intensity of contacts among political units that justify describing these units as constituting a system. Buzan, B, ‘From International System to International Society: Structural Realism and Regime Theory Meet the English School’ (1993) 47 International Organization 327.CrossRefGoogle Scholar

29 Curiously, Waltz recognises that ‘although states are like units functionally, they differ vastly in their capabilities’, but then does not explain why these differences in capabilities have not been transformed into system-wide authority. See Waltz (n 7) 88.

30 Ruggie, JG, ‘Review: Continuity and Transformation in the World Polity: Toward a Neorealist Synthesis’ (1983) 35 World Politics 261, 281.CrossRefGoogle Scholar

31 Lake, D, Hierarchy in International Relations (Cornell University Press, New York, NY, 2009)Google Scholar is an example of the use of hierarchy as an ordering principle, while Jack Donnelly, ‘Rethinking Political Structures: From Ordering Principles to Vertical Differentiation – and Beyond’ (2009) 1 International Theory 49, proposes using heterarchy as an ordering principle.

32 Hoffmann, S, ‘International Systems and International Law’ (1961) 14 World Politics 205, 212.CrossRefGoogle Scholar

33 Waltz, K, ‘Reflections on Theory of International Politics’ in Keohane, R (ed), Neorealism and Its Critics (Columbia University Press, New York, NY, 1986) 322, 329.Google Scholar

34 Ashley (n 19) 229 (anarchy is ‘not as a necessary condition that the realistic conduct of politics must take to be beyond question, but as an arbitrary political construction that is always in the process of being imposed’).

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

37 See Schroeder, P, ‘The 19th-Century International System: Changes in Structure’ (1986) 39 World Politics 1.Google Scholar

38 Wendt, A, ‘On Constitution and Causation in International Relations’ (1998) 24 Review of International Studies 101CrossRefGoogle Scholar (constitutive theories ‘account for the properties of things by reference to the structure in virtue of which they exist’); Wendt, A, ‘Anarchy Is What States Make of It: The Social Construction of Power Politics’ (1992) 46 International Organization 391, 397CrossRefGoogle Scholar (‘it is collective meanings that constitute the structures which organize our actions’).

39 Sampson, A Beers, ‘Tropical Anarchy: Waltz, Wendt, and the Way We Imagine International Politics’ (2002) 27 A lternatives: Global, Local, Political 439Google Scholar (on their acceptance of anarchy as an ordering principle, ‘Waltz and Wendt present flip sides of the same coin’).

40 Grieco, J, ‘Anarchy and the Limits of Cooperation: A Realist Critique of the Newest Liberal Institutionalism’ (1998) 42 International Organization 485, 488.CrossRefGoogle Scholar

41 Wendt, A, Social Theory of International Politics (Cambridge University Press, Cambridge, 1999) 249.CrossRefGoogle Scholar

42 Hurrell, A, On Global Order: Power, Values, and the Constitution of International Society (Oxford University Press, Oxford, 2007) 16.CrossRefGoogle Scholar

43 Vigezzi, B, ‘The British Committee and International Society’ in Navari, C and Green, D (eds), Guide to the English School in International Studies (Wiley-Blackwell, Chichester, 2014) 37, 43.Google Scholar

44 Bull (n 26) 67.

45 Schouenborg, L, ‘The English School and Institutions: British Institutionalists?’ in Navari, C and Green, D (eds), Guide to the English School in International Studies (Wiley-Blackwell, Chichester, 2014) 77, 81.Google Scholar

46 Bull (n 26) 67–8.

47 Dunoff, J and Trachtman, J, ‘A Functional Approach to International Constitutionalism’ in Dunoff, J and Trachtman, J (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge University Press, Cambridge 2009) 18.CrossRefGoogle Scholar

48 Donnelly, J, ‘The Constitutional Structure of International Societies’ (13 July 2006) 5Google Scholar (unpublished manuscript).

49 Müller, T, ‘Global Constitutionalism in Historical Perspective: Towards Refined Tools for International Constitutional Histories’ (2014) 3 Global Constitutionalism 71, 79.CrossRefGoogle Scholar

50 See Ikenberry, GJ, After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order after Major Wars (Princeton University Press, Princeton, NJ, 2000)Google Scholar; Ikenberry, GJ, Liberal Leviathan: The Origins, Crisis, and Transformation of the American World Order (Princeton University Press, Princeton, NJ, 2011).Google Scholar

51 Ikenberry, GJ, Liberal Order and Imperial Ambition (Polity Press, London, 2008) 118.Google Scholar

52 Ibid 119.

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

54 Clark, I, Legitimacy in International Society (Oxford University Press, Oxford, 2007) 6 (original emphasis).Google Scholar

55 Stone, A, ‘What is a Supranational Constitution? An Essay on International Relations Theory’ (1994) 56 Review of Politics 441, 444 (original emphasis).CrossRefGoogle Scholar

56 Besson, S, ‘Whose Constitution(s)? International Law, Constitutionalism, and Democracy’ in Dunoff and Trachtman (n 47) 381, 385.Google Scholar

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) 72–89.Google Scholar

63 Krasner, S (ed), International Regimes (Cornell University Press, New York, NY, 1983) 2.Google Scholar

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

69 See Slaughter, A-M, ‘Global Government Networks, Global Information Agencies, and Disaggregated Democracy’ (2003) 24 Michigan Journal of International Law 1041.Google Scholar

70 Hathaway, O and Shapiro, S, The Internationalists (Simon & Schuster, New York, NY, 2017) 413Google Scholar (arguing that ISIS ‘is committed to nothing less than the modification of the fundamental nature of the world order’).

71 See Donnelly, J, Realism and International Relations (Cambridge University Press, Cambridge 2000) 48–50.Google Scholar

72 Ruggie, J, Constructing the World Polity (Routledge, New York, NY, 2002) 188CrossRefGoogle Scholar (emphasis in original).

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

75 Motyl, A, Revolutions, Nations, Empires: Conceptual Limits and Theoretical Possibilities (Columbia University Press, New York, NY, 1999) 126Google Scholar (an imperial or hierarchical systems are ‘structurally centralized political systems within which core states and elites dominate peripheral societies’).

76 Khagram, S, ‘Possible Future Architectures of Global Governance: A Transnational Perspective/Prospective’ (2006) 12 Global Governance 97, 101CrossRefGoogle Scholar (heterarchy is ‘a world of multiple types, forms, and levels of authoritative political organizations and units and various types and levels of governance’).

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.

78 Halden, P, ‘Heteronymous Politics beyond Anarchy and Hierarchy: The Multiplication of Forms of Rule 750–1300’ (2017) 13 Journal of International Political Theory 266, 278.CrossRefGoogle Scholar

79 See Roth, B, Sovereign Equality and Moral Disagreement (Oxford University Press, Oxford, 2011) 55.CrossRefGoogle Scholar

80 Klabbers, J, Introduction to International Organizations Law (Cambridge University Press, Cambridge 2015) 46Google Scholar (discussing the ‘will theory’, which posits that ‘it is the will of the founders of the organization which decides on the organizations’ legal personality. Thus, if the founders intend to endow their creation with personality under international law, then such will be the case’).

81 For a typology of the diverse range of actors engaged in the current international system, see Benvenisti, E, The Law of Global Governance (Hague Academy of International Law, The Hague, 2014).CrossRefGoogle Scholar

82 See Baumann, R and Dingwerth, K, ‘Global Governance vs Empire: Why World Order Moves towards Heterarchy and Hierarchy’ (2015) 18 Journal of International Relations and Development 104.CrossRefGoogle Scholar

83 See Dahrendorf, R, ‘Toward a Theory of Social Conflict’ (1958) 2 Journal of Conflict Resolution 170.Google Scholar

84 Similar to the concept of ‘conflict groups,’ Jack Donnelly proposed the term ‘terminal polities’ to refer to ‘the most extensive standard political units in a system’ (n 31) 73.

85 See Buzan, B and Little, R, International Systems in World History (Oxford University Press, Oxford, 2000).Google Scholar

86 Medieval Europe with its ‘plurality of hierarchical bonds’ is the most cited example of a system composed of multiple actors and overlapping centres of authority. See Agnew, J, ‘The Territoriality Trap: The Geographical Assumptions of International Relations Theory’ (1994) 1 Review of International Political Economy 53, 60.CrossRefGoogle Scholar

87 As Mervyn Frost explains:

[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.

Frost, M, Ethics in International Relations (Cambridge University Press, Cambridge, 1996) 116.CrossRefGoogle Scholar

88 See Ruggie (n 30).

89 As Alexander Murphy argues, ‘territory is so important to political governance in part because it provides a locus for the exercise of political authority over a range of interests and initiatives … Political authority can be exerted over sets of issues or institutions, but it is difficult to construct an enduring system without a territorial base.’ A Murphy, ‘The Sovereign State System as Political Territorial Ideal: Historical and Contemporary Considerations’ in Biersteker, T and Weber, C (eds), State Sovereignty as a Social Construct (Cambridge University Press, Cambridge, 1996) 81, 110.CrossRefGoogle Scholar

90 See Dyson, K, The State Tradition in Western Europe (ECPR Press, Oxford, 2009) 29–30.Google Scholar

91 See Donnelly, J, ‘Differentiation: Type and Dimension’ in Albert, M, Buzan, B and Zürn, M (eds), Bringing Sociology to International Relations: World Politics as Differentiation Theory (Cambridge University Press, Cambridge, 2013) 97–9.Google Scholar

92 As James Brierly recognised, ‘the fundamental rights of states were born of the needs of a cause, rather than of reflection on the nature of the juridical relations of states. They were invented because the post-Renaissance prince, himself a successful rebel against the claims of pope and emperor, sought in a new juridical order a system to consecrate his hardly won independence.’ Brierly, J, The Basis of Obligation in International Law (Lauterpacht and Waldock (eds) 1958) 4.Google Scholar

93 Aalberts, T, ‘Rethinking the Principle of (Sovereign) Equality as a Standard of Civilisation’ (2014) 42 Millennium: Journal of International Studies 767, 769CrossRefGoogle Scholar (‘[T]he politics of “legal subjecthood” have a productive power through inclusion and exclusion into the international system’).

94 Buzan, B and Little, R, ‘The Idea of “International System”: Theory Meets History’ (1994) 15 Revue Internationale de Science Politique 231, 237–41.Google Scholar

95 Grewe, W, The Epochs of International Law (Walter de Gruyter, Berlin, 2000) 548CrossRefGoogle Scholar (in the nineteenth century, ‘the application of the law of occupation to territories located outside Europe and inhabited by “savages” was founded on the assumption that ‘‘barbarians have no rights as a nation” as John Stuart Mill wrote’).

96 This echoes the distinction between ‘changes within the framework of well-established conventions’ and ‘a more fundamental type of change occurs when the practices and constitutive conventions of a social system are altered’. Koslowski, R and Kratochwil, F, ‘Understanding Change in International Politics: The Soviet Empire’s Demise and the International System’ (1994) 48 International Organization 215, 222–3.CrossRefGoogle Scholar

97 As John Ruggie noted, ‘modes of differentiation are nothing less than the focus of the epochal study of rule’. Ruggie, J, ‘Territoriality and Beyond: Problematizing Modernity in International Relations’ (1993) 47 International Organization 139, 152.CrossRefGoogle Scholar

98 Portmann, R, Legal Personality in International Law (Cambridge University Press, Cambridge, 2010) 1CrossRefGoogle Scholar (‘Legal personality is a concept … employed to distinguish between those social entities relevant to the international legal system and those excluded from it.’).

99 See Coicaud, J-M, Legitimacy and Politics: A Contribution to the Study of Political Right and Political Responsibility (Cambridge University Press, Cambridge, 2002) 234.CrossRefGoogle Scholar

100 Convention on the Rights and Duties of States (26 December 1933) 165 L.N.T.S. 19.

101 Shaw, M, International Law (7th edn, Cambridge University Press, Cambridge, 2014) 153–7.Google Scholar

102 UN General Assembly Res 2625 (XXV), A/Res/25/2625.

103 See Joyner, D and Roscini, M, ‘Is There Any Room for the Doctrine of Fundamental Rights of States in Today’s International Law?’ (2015) 4 Cambridge Journal of International & Comparative Law (2015) 467.CrossRefGoogle Scholar

104 1969 Vienna Convention on the Law of Treaties, art 6.

105 Crawford, J, The Creation of States in International Law (Oxford University Press, Oxford, 2007) 40.CrossRefGoogle Scholar

106 This is a ‘validity regress’ which is ‘a series of questions along the lines of: “Why is a norm valid, what is its basis of validity?”’. Kammerhofer, J, ‘Hans Kelsen in Today’s International Legal Scholarship’ in Kammerhofer, J and D’Aspremont, J (eds), International Legal Positivism in a Post-Modern World (Cambridge University Press, Cambridge, 2014) 81, 95.CrossRefGoogle Scholar

107 Waltz (n 7) 99.

108 Watson, A, The Evolution of International Society (Routledge, London, 1992) 14.Google Scholar

109 , L Sjoberg, ‘The Invisible Structures of Anarchy: Gender, Orders, and Global Politics’ (2017) 13 Journal of International Political Theory 325, 329.CrossRefGoogle Scholar

110 Tribe, L, The Invisible Constitution (Oxford University Press, Oxford, 2008) 37–8.Google Scholar

111 These include precepts such as that the US government is a ‘government of the people, by the people, for the people’, that it is ‘a government of laws, not men’, that the US society is ‘committed to the rule of law’, and that ‘no state may secede from the Union’. Ibid 28.

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

113 Griffiths, M, ‘Worldviews and IR Theory: Conquest or Coexistence?’ in Griffiths, M (ed), International Relations Theory for the Twenty-First Century (Routledge, New York, NY, 2007) 1CrossRefGoogle Scholar (‘A worldview is a broad interpretation of the world and an application to the way in which we judge and evaluate activities and structures that shape the world … Worldviews contain fundamental assumptions and presuppositions about the constitutive nature of IR’).

114 Kissinger, H, A World Restored (Houghton Mifflin, New York, NY, 1959).Google Scholar

115 For a review of the literature on legitimacy in international relations, see Clark (n 54) 1–30.

116 Ikenberry, GJ, ‘The Plot against American Foreign Policy’ (2017) 96 Foreign Affairs 2, 8.Google Scholar

117 Ruggie (n 72) 64 and 66–7.

118 Gilpin, R, War & Change in World Politics (Cambridge University Press, Cambridge, 1985) 35–7Google Scholar (‘Rome and Great Britain each created a world order, but the often oppressive rule of Pax Romana was in most respects different from the generally liberal rule of Pax Britannia. Napoleonic France and Hitlerite Germany gave very different governance to the Europe they each united.’).

119 As John Ruggie wrote in classic phrase: ‘it was less the fact of American hegemony that accounts for the explosion of multilateral arrangements than it was the fact of American hegemony.’ Ruggie, J, ‘Multilateralism: The Anatomy of an Institution’ (1992) 46 International Organization 561, 568.CrossRefGoogle Scholar

120 See Ikenberry (n 50); Bobbitt, P, The Shield of Achilles (Anchor Books, New York, NY, 2002).Google Scholar

121 See Jarrett, M, The Congress of Vienna and Its Legacy (I.B. Tauris, London, 2014).Google Scholar

122 Watson (n 108) 191 (arguing that ‘raison d’état replaced religion as the determining principle of alliances … the alliance structures became secularized’).

123 Beetham, D, The Legitimation of Power (MacMillan Education Ltd., London, 1991) 3.CrossRefGoogle Scholar

124 Hurd (n 77) 388.

125 In his seminal work on legitimacy, Max Weber spoke of the ‘generally observable need of any power, or even any advantage of life, to justify itself’. Weber, M, Economy and Society, vol 3, (Bedminister Press, New York, NY, 1968) 953.Google Scholar

126 See Steffek, J, ‘Legitimacy in International Relations: From State Compliance to Citizens Consensus’ in Hurrelmann, A, Schneider, S and Steffek, J (eds), Legitimacy in the Age of Global Politics (Palgrave MacMillan, Basingstoke, 2007) 175;CrossRefGoogle Scholar Lister, M, ‘The Legitimating Role of Consent in International Law’ (2011) 11 Chicago Journal of International Law 1, 5.Google Scholar

127 Hart, HLA, The Concept of Law (2nd edn, Oxford University Press, Oxford, 1997) 94.Google Scholar

128 Ibid.

129 Clapham, A, Brierly’s Law of Nations (7th edn, Oxford University Press, Oxford, 2014) 1.Google Scholar

130 Focarelli, C, ‘In Quest of Order and Capturing the Complexity of International Law’ (2009) 11 Journal of the History of International Law 187, 191.CrossRefGoogle Scholar

131 Nussbaum, A, A Concise History of the Law of Nations (1st edn, Macmillan Co., New York, NY, 1947) 1.Google Scholar

132 Steiger, H, ‘From the International Law of Christianity to the International Law of the World Citizen – Reflections on the Formation of the Epochs of International Law’ (2001) 3 Journal of the History of International Law 180, 181.CrossRefGoogle Scholar

133 Preiser, W, ‘History of International Law, Ancient Times to 1648’ in Bernhardt, R (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, Oxford, 1995) 722.Google Scholar

134 Hart (n 127) 100. (‘The existence of such a rule of recognition may take any of a huge variety of forms, simple or complex. It may, as in the early law of many societies, be no more than that an authoritative list or text of the rules is to be found in a written document or carved on some public monument’).

135 Nussbaum (n 131) 3.

136 Hart (n 127) 96.

137 Galligan, D and Versteeg, M, ‘Theoretical Perspectives on the Social and Political Foundations of Constitutions’ in Galligan, D and Versteeg, M (eds), Social and Political Foundations of Constitutions (Cambridge University Press, Cambridge, 2013) 3, 11CrossRefGoogle Scholar (noting that the broad normative commitments of a constitution will ‘permeate other, more substantive provisions concerning the nature and structure of government and institutions, the limits on their powers’).

138 Besson, S, ‘Theorizing the Sources of International Law’ in Besson, S and Tasioulas, J (eds), The Philosophy of International Law (Oxford University Press, Oxford, 2010) 163, 164.Google Scholar

139 Lesaffer, R, ‘ Peace Treaties and the Formation of International Law’ in Fassbender, B and Peters, A (eds), The Oxford Handbook of the History of International Law (2012) 71, 93.Google Scholar

140 Brownlie, I, Principles of Public International Law (7th edn, Oxford University Press, Oxford, 2008)Google Scholar (‘Sovereignty … represents the basic constitutional doctrine of the law of nations.’).

141 Reus-Smit, C, ‘Constitutional Structure of International Society and the Nature of Fundamental Institutions’ (1997) 51 International Organization 555, 565.CrossRefGoogle Scholar

142 Goddard, S and Nexon, D, ‘Paradigm Lost? Reassessing Theory of International Politics’ 11 European Journal of International Relations (2005) 9, 35.CrossRefGoogle Scholar

143 Wendt, A, ‘The Agent-Structure Problem in International Relations Theory’ (1987) 41 International Organization 335, 359.CrossRefGoogle Scholar

144 Doyle, M, ‘Three Pillars of the Liberal Peace’ (2005) 99 American Political Science Review (2005) 463.CrossRefGoogle Scholar

145 See Franck, T, The Emerging Right to Democratic Governance (1992) 86 American Journal of International Law (1992) 46.CrossRefGoogle Scholar See also Vidmar, J, Democratic Statehood in International Law (Hart Publishing, Oxford, 2013).Google Scholar

146 Slaughter, A-M, ‘International Law in a World of Liberal States’ (1995) 6 European Journal of International Law (1995) 504.CrossRefGoogle Scholar

147 Cox, M, Power Shifts, Economic Change, and the Decline of the West? (2012) 26 International Relations (2012) 369, 371.CrossRefGoogle Scholar

148 See Burke-White, W, ‘Power Shifts in International Law: Structural Realignment and Substantive Pluralism’ (2015) 56 Harvard International Law Journal 1.Google Scholar

149 Kupchan, C, No One’s World (Oxford University Press, Oxford 2012).Google Scholar