ABSTRACT
This article posits that the fields of international law and organization are experiencing a legitimacy crisis relating to fundamental reconfigurations of global power and authority. It argues that traditional Westphalian-inspired assumptions about power and authority are incapable of providing contemporary understanding and identifies a growing disjunction between the theory and the practice of the Westphalian system. This disjunction suggests that these fields are experiencing a crisis in that they are incapable of theorizing contemporary developments that do not fit within the Westphalian paradigm of authority and rule. Indeed, a critical analysis of the Westphalian model of rule illustrates that it has never adequately captured international practice. However, the article argues that the lack of fit or asymmetry between theory and practice is becoming more acute, portending a crisis of legitimacy. The actors, structures, and processes identified and theorized as determinative by the dominant approaches to the study of international law and organization have ceased to be of singular importance. Westphalian-inspired notions of state-centricity, positivist international law, and 'public' definitions of authority are incapable of capturing the significance of non-state actors, like transnational corporations and individuals, informal normative structures, and private, economic power in the global political economy. Moreover, liberal mythology makes the content of the private sphere disappear by defining it out of existence as a political domain. In so doing, liberalism effectively insulates private activity from social and political controls. As a result, as part of the private sphere, neither transnational corporations nor individuals are regarded as authoritative legally or politically. Both are 'invisible' as agents of political and legal change. This produces some rather bizarre and alarming results. The legal 'invisibility' of corporations enhances their
significance, facilitating forces of globalization, privatization, and deregulation, which are expanding corporate influence in the world. 1 Simultaneously, the legal 'invisibility' of individuals seriously inhibits individual challenges to the expansion of corporate power and constrains efforts to hold corporations accountable.2
