System, Order, and History as a Conceptual Repository in International Law
| Published date | 01 March 2020 |
| Author | Alexis Galán |
| Date | 01 March 2020 |
| DOI | http://doi.org/10.1111/1468-2230.12440 |
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Modern Law Review
DOI: 10.1111/1468-2230.12440
REVIEW ARTICLE
System, Order, and History as a Conceptual Repository
in International Law
Alexis Gal´
an∗
Stefan Kadelbach, Thomas Kleinlein, and David Roth-Isigkeit (eds),System, Or-
der, and International Law – The Early History of International Legal
Thought from Machiavelli to Hegel, Oxford: Oxford University Press,
2017, 544 pp, hb £80.00.
Within the legal Western tradition, concepts such as system and order occupy
a dominant role in structuring legal discourse. They are so entrenched in our
‘form of life’ that it seems impossible to reflect about law without resorting to
them. It comes naturally to discuss the law as forming a system or as a guarantor
of order. Take the following statements from two law textbooks written almost
fifty years apart and aimed to different audiences:
‘The Law’ in the broad sense of our whole legal system with its institutions,
rules, procedures, remedies, etc., is society’s attempt, through government, to
control human behavior and prevent anarchy, violence, oppression and injustice
by providing and enforcing orderly, rational, fair and workable alternatives to the
indiscriminate use of force by individuals or groups in advancing or protectisng
their interests and resolving their controversies. ‘Law’ seeks to achieve both social
order and individual protection, freedom and justice.1
In the long march of mankind from the cave to the computer a central role has
always been played by the idea of law – the idea that order is necessary and chaos
inimical to a just and a stable existence. Every society, whether it be large or small,
powerful or weak, has created for itself a framework of principles within which to
∗Post-Doctoral Researcher, Cluster of Excellence ‘Formation of Normative Orders’ Goethe-
University Frankfurt am Main. An earlier version of the article was presented in June 2018 at
the Legal and Political Theory Annual Conference, European University Institute. I would like to
thank Cormac Mac Amhlaig and the participants for their comments and suggestions. The author
can be reached at alexis.galan@alumni.eui.eu.
1 S.V.Kinyon,Law Study and Law Examinations in a Nutshell (St Paul, Minn: WestPublishing Co,
1971) 9.
C2019 The Author. The Modern Law Review C2019The Modern Law Review Limited. (2020) 83(2) MLR 451–476
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
System, Order, and History as a Conceptual Repository in International Law
develop. What can be done, what cannot be done, permissible acts, forbidden acts,
have all been spelt out within the consciousness of that community.2
Without underplaying the existing differences, it is nonetheless striking how
remarkably alike both paragraphs are: without law there cannot be order.
Although the juxtaposition of these quotes highlights the centrality of law as
an ordering device, a similar exercise could be undertaken regarding law as a
system. It is not a difficult task to find texts emphasising law as ‘a coherent,
organic body of rules and principles with its own internal logic.’3
Despite their cardinal importance, the concepts themselves and what the
relationship between them is are far from being univocal or clear. Beyond the
acknowledgment that system, order, and law are somehow intertwined, dis-
agreements immediately surface about the precise contours of their relationship.
What kind of order is law or ought it to be? Under what conditions can we
claim that order has been achieved? How do the political and legal order relate?
What kind of system is law? How does the system produce order? These are all
questions that defy any ready-made answer. To a large extent, the conceptual
difficulties are unsurprising. These are concepts with a long and protracted his-
tory. All three concepts can be traced back to either Greek or Latin4and have
been used in multiple contexts and purposes. As a result, they have inevitably
accrued a ‘synthesis of meanings’, making it impossible to locate ‘a natural single
and fixed origin’ determining the ‘exact’ meaning of a concept, as all subse-
quently bestowed meanings have become part of the concept.5Hence the task
of comprehensively defining the concepts and of delineating the exact contours
of the relationship between them is extraordinarily complex, if not impossible.
The edited volume under review here, System, Order, and International Law –
The Early History of International Legal Thought from Machiavelli to Hegel,6focuses
on the intricate relationship between system, order, and law in the context
of international law.7The editors, Kadelbach, Kleinlein, and Roth-Isigkeit,
have put together a volume dedicated to recovering how past ‘thinkers’8have
understood and conceptualised the ‘political and legal order beyond the bound-
aries of sovereign territories’ and the role of system and order in the respective
thinkers’ accounts (Kadelbach, Kleinlein, and Roth-Isigkeit, 1). In particular,
the volume surveys the philosophers that existed between the emergence of
international legal thought as a discourse and the appearance of ‘the modern
nation state’ at the end of the nineteenth century (ibid).
2 M.S.Shaw,International Law (Cambridge: CUP, 8th ed, 2017) 1.
3R.Wacks,Law - A Very Short Introduction (Oxford: OUP, 2015) 9. See also L. J. Pospisil,
Anthropology of Law: A Comparative Theory (New York, NY: Harper and Row, 1971) 275; S.
Coyle, Modern Jurisprudence: A Philosophical Guide (Oxford: Hart, 2014) 12-13.
4 System appears in Greek as sust¯
ema and in Latin as systema. Order appears in Latin as ¯
ordinem.
Concerning law,Latin has two variants lex, which refers to a particular law, and ius,whichrefers
to law generally, whereas in Greek law was discussed as nomos.
5 R. Geuss, ‘Nietzsche and Genealogy’ (1994) 2 European Journal of Philosophy 274.
6 All references to the book are in the main text, referencing the author/s of the relevant chapter
and the page number.
7 Although it is technically incorrect to talk of ‘international law’ prior to Bentham’s coinage in
1789, for simplifying purposes I will use the term throughout the essay.
8 I will also use philosopher as synonym for thinker.
452 C2019 The Author. The Modern Law Review C2019The Moder n Law ReviewLimited.
(2020) 83(2) MLR 451–476
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