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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.

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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’).

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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

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

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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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