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ARTICLES
Westphalia: a Paradigm? A Dialogue between Law, Art
and Philosophy of Science
By Marcílio Toscano Franca Filho*
A. Introduction
On 23rd June 2007, after three years of uncertainty, European Union leaders agreed
on relaunching the old idea of a Magna Charta for Europe (now called “the Reform
Treaty”), a normative structure based on the old ideas of deference to national
identities, sovereignty and equality. To many authors, the first time that juridical
equality between states was solemnly stated was in the aftermath of the Thirty
Years’ War (1618-1648), in the Westphalia Peace Treaties, representing the
beginning of modern international society established in a system of states, and at
the same time, “the plain affirmation of the statement of absolute independence of
the different state orders.”1 In fact, under an Eurocentric conception of political
ideas (which envisages England as an isolated island and Iberia as Maghreb, north
of Africa), the modern state emerges with the Westphalia Peace Treaties. However,
under a broader conception, the modern nation-state (under the form of absolute
monarchy) emerged long before the Westphalia Peace Treaties, in Iberia and
England.2 Nevertheless, it is in these documents which lies the “birth certificate” of
the modern sovereignty nation-state, base of the present democratic state, and
“founding moment” of the international political system. Far beyond this merely
formal aspect, the importance of the Westphalia Peace Treaties is so great to the
understanding of the notion of state that Roland Mousnier, in describing the 16th
and 17th centuries in the General History of the Civilizations, organized by Maurice
Crouzet, asserts that those treaties symbolized a real “constitution of the new
* Calouste Gulbenkian Fellow at the Law Department of the European University Institute (Florence,
Italy); PhD in Comparative Law (University of Coimbra, Portugal); Professor of Political Science at the
Instituto de Educação Superior da Paraíba (IESP, Brazil), Attorney/Prosecutor (Public Ministry at the
Court of Accounts of Paraiba, Brazil). Former International Legal Adviser (United Nations Office in
Timor Leste, UNOTIL). Email: mfilho@tce.pb.gov.br
1 PAOLO BISCARETTI DI RUFFIA, DERECHO CONSTITUCIONAL (Constitutional Law) 121-122 (1965).
2 José Roberto Franco da Fonseca, Geopolítica e Direito Internacional (Geopolitics and International Law),
91 REVISTA DA FACULDADE DE DIREITO DA UNIVERSIDADE DE SÃO PAULO 315, 316 (1996).
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Europe,”3 a multifarious Europe, plural and very distant from the religious unit of
Christianity, from the political unit of the Holy Roman Empire, and from the
economical unit of the feudal system. Constitutions are especially important
because they establish the rules for the political authority, they determine who
governs and how they govern: “[I]n codifying and legitimating the principle of
sovereign statehood, the Westphalian constitution gave birth to the modern states-
system.”4
The symbolic character of the Westphalia Peace Treaties is undeniable and can be
estimated by innumerable and multidisciplinary references to a “westphalian” or
“post-westphalian” model of State or of international relations. The political,
juridical, geographical, religious, and philosophical outcomes of the Westphalia
Peace Treaties induced many State and Law scholars to speak of a “Westphalian
paradigm” to describe a standard, a parameter, or a model of State which became
an absolute reference as from the 17th century.
Paradigms should be differentiated from the word legacy. They are more than a
legacy. A paradigm, according to Fourez,5 is a mental structure, conscious or not,
that is useful to classify the world and approach it. In other words, paradigms are
the key theories, instruments, values and metaphysical assumptions that comprise
a disciplinary matrix. Philosopher Thomas Kuhn, in the beginning of his classical
study about the thinking and scientific revolutions, teaches: the study of paradigms
is what basically prepares the student for membership in the scientific community
in which he or she will later work6. The concept of state that emerges from the
Westphalia Peace Treaties reaches this status of fundamentality. Thus, reference to
the understanding of the world which occurs after it, and taking it as a paradigm,
would be no great orthodoxy7. Beaulac asserts that references to the centrality of the
Westphalian profile of State date back at least to the middle 19th century by
important authors of International Law.8 With undoubted legitimacy, Leo Gross, in
3 Roland Mousnier, Os Séculos XVI e XVII (Centuries XVI and XVII), in HISTÓRIA GERAL DAS
CIVILIZAÇÕES IV/1 (General History Of The Civilizations IV/1) 302 (Maurice Crouzet ed., 1973).
4 JOHN BAYLIS & STEVE SMITH eds., THE GLOBALIZATION OF WORLD POLITICS: AN INTRODUCTION TO
INTERNATIONAL RELATIONS 29-30 (2006).
5 GÉRARD FOUREZ, A CONSTRUÇÃO DAS CIÊNCIAS (The Construction of Sciences) 103 (1995).
6 THOMAS KUHN, A ESTRUTURA DAS REVOLUÇÕES CIENTÍFICAS (The Structure of Scientific Revolutions) 30
(1997).
7 Stéphane Beaulac, The Westphalian Legal Orthodoxy – Myth or Reality?, 2 JOURNAL OF THE HISTORY OF
INTERNATIONAL LAW 148, 148 (2000).
8 Id.
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a referential text marking the three-hundredth anniversary of those peace treaties,
emphasises that “the Peace of Westphalia, for better or worse, marks the end of an
epoch and the opening of another. It represents the majestic portal which leads
from the old to the new world.”9 In the same direction, Harding & Lim point out
that “undoubtedly, there was a pre-Westphalian system (see e.g. Nussbaum,
Verdross, Ago) … which somehow was supplanted.”10
Despite being central to the understanding of the contemporary scene, very few
times has the Westphalian paradigm occupied the core of papers in the world of
legal writings, especially in Latin America. Related reports are found in sciences
akin to Law and almost always as support for other historical studies. The origins,
implications, characteristics, and present content of the Westphalian paradigm,
from a Legal point of view, form the core of the work here presented. It is
important to remember that the deep implications of the Westphalia Peace Treaties,
established three hundred and fifty years ago, transcend the legal world to reach to
the peak of international relations, sociology, economics, and philosophy. The
investigation which follows is restricted to objects of law dogma in general, and
constitutional dogma in particular.
In the framework of relationships between State and Law, to understand one is to
fully understand the other. This fact gives legitimacy to the inquiry about the
Westphalian Legal paradigm which is to be developed here. All the “vision of the
world” (Weltanschauung) structuring of the modern and contemporary modes of
understanding/applying Law is based on the tripod Stateness-rationality-oneness,
according to which Law identifies with the rule imposed solely by the State, the
only one valid, in use and effective in its territory and conceived according to
principles of coherence, systematization, harmony and logic. The political-juridical
category “State” is the base to the study and understanding of this model of Law
that has been formed since the disintegration of the feudal world. State and Law
maintain between each other a relationship of mutual interference so that Law
(starting from the constitutional one) is meant to give a form, constitute or conform
a given scheme of political organization of which main characteristic is the
monopoly of the political-juridical power over a determined community gathered
in a territory.11
9 Leo Gross, The Peace of Westphalia, 1648-1948, 42 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 20, 28
(1948).
10 CHRISTOPHER HARDING & C. L. LIM eds., RENEGOTIATING WESTPHALIA: ESSAYS AND COMMENTARY ON
THE EUROPEAN AND CONCEPTUAL FOUNDATIONS OF MODERN INTERNATIONAL LAW 6 (1999).
11 J. J. GOMES CANOTILHO, DIREITO CONSTITUCIONAL E TEORIA DA CONSTITUIÇÃO (Constitutional Law and
Constitution’s Theory) 87-90 (2002).
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B. Historical Environment: From the Thirty Years’ War to the Peace of Westphalia
Before the Thirty-Years’ War, the European political order was an amalgam of the
traditions of the Roman Empire and the Catholic Church. The world was heaven’s
mirror. One only God reigned in heaven, and so just one Emperor should be the
lord in the secular world and just one Pope should rule the universal church.12
Along this same line of singular religious and political thinking, both Truyol y
Serra13 and Machado14 speak of a “Res Publica Christiana,” Augustinian-based and
valid in all of Europe.
The Thirty Years’ War represented a titanic conflict between the rival dynasties of
Bourbon (France) and Hapsburg (lords of Spain and of the Holy Roman Empire,
with territories in Austria, Bohemia, the Netherlands, Bavaria, Flanders, north of
Italy, Belgium and Hungary) for the domain of continental Europe. Few military
conflicts in History have caused such devastation to the civilian population. It is
estimated that at least half of the German and Bohemian people lost their lives due
to starvation, diseases and brutal attacks from soldiers bent on pillage. The armies
from both sides looted, tortured, killed and set fire to everything transforming
entire regions into great deserts15.
The violence of the Thirty Years’ War was particularly intense in the German
territories where pain molded all the German baroque literature in the seventeenth
century. Never was any country submitted to such cruel and systematic
devastation, having its population, in certain regions, reduced to a tenth, having all
their moral and material values destroyed. It was the greatest catastrophe of the
German people: the country came out of it extremely poor, undeveloped and
politically divided into small princedoms, ruled in the north by mean Lutheran
rulers and in the south by neglectful Catholic prelates, while in the few larger States
absolutism was established in the French way.16 Andreas Gryphius, the greatest
name in German baroque poetry, in his 1636 sonnet “Thränen des Vatterlandes”
(“Homeland Tears”), portrayed with unique clarity, the long pain of war in the
sonnet .
12 HENRY KISSINGER, DIPLOMACIA (Diplomacy) 57 (Gradiva trans.) (1999).
13 ANTONIO TRUYOL Y SERRA, LA SOCIEDAD INTERNACIONAL (The International Society) 57 (1974).
14 JÓNATAS MACHADO, DIREITO INTERNACIONAL: DO PARADIGMA CLÁSSICO AO PÓS-11 DE SETEMBRO
(International Law: from the Classic Paradigm to the Post-September 11th) 46-50 (2003).
15 EDWARD MCNALL BURNS, HISTÓRIA DA CIVILIZAÇÃO OCIDENTAL I (History of the Western Civilization
I) 538 (1981).
16 OTTO MARIA CARPEAUX, A LITERATURA ALEMÃ (The German Literature) 29 (1964).
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At the root of the war was a religious conflict deriving from the intolerance
between Catholics and Protestants. In fact, the religious coexistence of Catholics
and Protestants was a problem within the States as well as among them17. The
Protestant Reform, breaking the Catholic religious monopoly in Medieval Europe,
provided the base from where later flourished the Thirty Years’ War and the Peace
of Westphalia. Schiller, the great poet who, along with Goethe, gives prestige to
German romanticism, starts his unsurpassable “Histoire de la Guerre de Trente Ans”
mentioning that “depuis l’époque où la guerre de religion commença en Allemagne,
jusqu’à la paix de Münster, on ne voit presque rien de grand et de remarquable arriver dans
le monde politique de l’Europe, sans que la Réforme y ait contribué de la manière la plus
importante.”18
It is necessary to bear in mind that after the Carolingian dynasty, around 911 AD,
the dukes of Franconia, Saxony, Swabia, and Bavaria founded the German
kingdom, an elective monarchy in which the king was one of the dukes, elected by
the others. In the year 936 AD, the reign of Otto I starts. His victory over the
Hungarians in 955 AD brought him enormous prestige, and in 962 AD, the Pope
John XII, whom the German monarch protected, pronounced him Holy Emperor
with the title of Imperator Romanorum (“Emperor of the Romans”). And so was
founded the Holy Roman Empire,19 a fusion between the German monarchy and
what was spared of the Roman Empire. Once appointed Holy Emperor by the Pope
in Rome, the German elected monarch became the temporal chief of Christendom,
respected and obeyed by all noblemen of the continent; a clear prototypical
manifestation of the European “supranationality” of the second half of the
twentieth century.
In theory, the temporal power of the Holy Empire was universal, while the spiritual
power of the Pope remained unique, unquestioned and also universal. As H.
Kissinger observed, different from a Pharaoh or a Caesar, the Holy Roman Emperor
did not appear to have any divine attributes emanating from him such as the
powers to interfere with ecclesiastical nominations.20 However, not even the
relations between these two great European authorities (the spiritual and the
mundane) were peaceful.21
17 G. Östreich, Problemas Estruturais do Absolutismo Europeu (Structural Problems of the European
Absolutism), in PODER E INSTITUIÇÕES NA EUROPA DO ANTIGO REGIME (Power and Institutions in the
Europe of the Old Regimen) 192 (António Manuel Hespanha ed., 1984).
18 SCHILLER, HISTOIRE DE LA GUERRE DE TRENTE ANS I (History of the Thirty Years' War I) 1 (1803).
19 Also called Sacred Roman Empire of the German Nation, Sacrum Romanum Imperium, Heiliges Romisches
Reich Deutscher Nation, or still I Reich.
20 KISSINGER, supra note 12, at 58.
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In the beginning, the subjection of noblemen to the Emperor of the Holy Empire
was merely formal and princes did what they judged legal, free from Imperial
interference. From the 15th century on, however, the political power and warlike
force of the Hapsburgs, permanently aspiring to the Imperial Catholic crown,
empowered the Holy Emperor with respectability and authority. In this way, from
1438, the Imperial crown became hereditary among the Hapsburgs, though
formally it remained elective. Although the Hapsburgs were feared, they also
feared the crown could be taken by others.22 Since the formation of the Holy
Empire, the “electoral college” charged with selecting the Emperor varied
according to circumstantial alliances, battles and quarrels. From 1356 on, however,
with the edition of the “Golden Bull” (Bulla Aurea) by the Emperor Charles IV, the
Emperor was hand selected by seven permanent electors: the Archbishops of
Colony, Mainz and Trier, the King of Bohemia, the Count Palatine of the Rhine, the
Duke of Saxony and the Margrave of Brandenburg.23 With the Lutheran Reform,
the confrontation among the Catholic electors and noblemen, as against the
Protestant electors and noblemen, became inevitably more intense, all of them
aspiring to the imperial crown and defense of Catholicism and the Pope. All these
vectors of holy and profane powers transformed the Holy Roman Empire into a
scene of internal and external rivalries. As Voltaire noted, the Holy Empire was
never holy, not even Roman and never truly an Empire.24
The first battles of the Thirty Years’ War started in 1618, when the Hapsburgs from
Austria, the “natural” protectors of Christendom as against the infidels or heretics,
encouraged by the victories of the Catholic Counter Reform, attempted to enlarge
their domains in Central Europe and to limit the Protestant's religious freedom.
Such behavior disgusted many Protestant noblemen in the area of today’s Germany
and started an insurrection in Bohemia (today's Czech Republic) where there had
been mass conversions into Calvinist Protestants after the Protestant Reformation.
Local noblemen, displeased with the attitudes of the Catholic Emperors from
Vienna toward the Protestants of the region, organized themselves in 1608 around
the Protestant Union (an armed alliance to defend the Princes and Protestant cities,
led by the Palatinate elector) in opposition to the Catholic League. The Catholic
21 Beaulac, supra note 7, at 153-60.
22 ARNO KAPPLER, TATSACHEN ÜBER DEUTSCHLAND (Facts on Germany) 13 (1996).
23 The Duke of Saxony and the Marquise of Brandenburg later became known as the “Prince Elector of
Saxony” and the “Prince Elector of Brandenburg,” respectively. The Count Palatine of the Rhine was
called the “Palatine Elector.” Given his ordering character and fundamental imperial politics, the Bulla
Aurea is seen as a true constitutional norm of the Holy Roman Empire.
24 See Beaulac, supra note 7, at 169.
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League was headed by Duke Maximilian I, the Duke of Bavaria and was formed
shortly after 1609.25 The common perception among German Protestants was that
the Emperor of the Holy Empire was no more than a tyrant from Vienna associated
with the decadent papacy.26
The lack of satisfaction in Bohemia came to its climax on the morning of May 23rd,
1618, when a group of protestant noblemen invaded the Hradschin Castle,
headquarters of the representatives of the Austrian Catholic government in Prague.
The invaders made two representatives jump out of windows in reprisal for the
destruction of the Lutheran churches under the orders of Vienna.27 Though the
rebels had intended to kill their victims (Catholic noblemen William Slawata and
Jaroslav Martinitz), both of them miraculously escaped to personally inform the
Courts in Vienna.28 This episode, which was recorded in History as the
“defenestration of Prague,” led to the refusal of the Evangelical league to accept the
election of the radical Catholic Prince, Ferdinand II, Archduke of Austria (a
Hapsburg) and a pupil of the Jesuits, as Emperor of the Holy Roman Empire.29 By
this time, the Protestant Union had named Frederick V, the Calvinist Prince elector
from the prosperous Palatinate region, the new king of Bohemia, .30 Simultaneously,
the Protestant Union proclaimed independence for the Austrian domain. With the
accession to the crown of Bohemia, whose king was one of the seven electors of the
Sacred Emperor, the Protestants eventually obtained a majority sufficient to elect,
for the first time, a non-catholic Holy Emperor. From the “defenestration of
Prague”, which was apparently local and restricted to Bohemia, the conflict spread
to all of Europe, transforming it into the first war in history of European
proportions.
25 Andréas Osiander, Sovereignty, International Relations, and the Westphalian Myth, 2 INTERNATIONAL
ORGANISATION 251, 253 (2001).
26 KISSINGER, Supra note 12, at 59.
27 ROBERT BIRELEY, THE JESUITS AND THE THIRTY YEARS WAR 1 (2003).
28 J. P. COOPER ed., THE NEW CAMBRIDGE MODERN HISTORY: THE DECLINE OF SPAIN AND THE THIRTY
YEARS WAR, IV 308 (1970).
29 The religious fanaticism of Ferdinand II, for whom the state existed only to serve religion, could be
measured by the words of his confident counsellor Gaspar Scioppius: “unfortunate is the king who
ignores the voice of God begging him to kill the heretics. You should not make war for yourselves but
for God (Bellum non tuum, sed Dei esse statuas).” See KISSINGER, supra note 12, at 62.
30 The Palatinate was a German region around the university city of Heidelberg, its capital.
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By November 1620, Ferdinand II had re-conquered the capital of Bohemia and
expelled Frederick V, nicknamed “king for a winter,” transferring his right as
Prince Elector to the Duke of Bavaria. The success of the Austrian Hapsburgs and
Ferdinand II in regaining the domain of Bohemia and defeating the rebellious
Protestants, depended to a large extent on the help they had received from Spain
(also ruled by the House of Hapsburg), from Poland, and from several German
Catholic noblemen (specifically Duke Maximillian from Bavaria). Such facts –
besides the ruin and poverty left in Bohemia and in the Palatinate region by the
troops loyal to the Holy Catholic Emperor31 – brought about conflicts between other
European Protestant governments such as other German Princes, the king Christian
IV from Denmark and king Gustaf Adolf from Sweden, all of them expansionist,
non-Catholic and anti-Imperialist. These two last had the hope to reunite territories
north of continental Europe and wished to balance the power of religious base, so
they fought violent wars, without success, with the troops of the Catholic League in
the fields on the German side of the Baltic Sea.
In 1629, Holy Emperor Ferdinand II aggravated the political crisis by imposing the
“Edit of Restitution” upon the Germans; an imperial act that annulled all Protestant
titles over Catholic properties effective from 1555 and put the expropriate lands at
the Emperor’s and his allies’ will. By doing so, Ferdinand II intended to pay part of
his moral and financial debt to the Catholic noblemen who had helped him to
regain Bohemia and keep the Danish and Swedish temporarily at odds. For the first
time, an Imperial act had force of law, directly enforced in the territories of the
Princes, and backed by the Emperor’s private army led by the competent
condottiere Wallenstein.32 In this context of continuous strengthening, the Imperial
power became a monarchic power and the Emperor, a great danger for Europe.33
This danger would not be isolated to the east of the river Rhine. In 1630, the
Teutonic Protestants gained the enormous and continuous financial support of the
French (catholic) in their fight against the neighboring Hapsburgs (also catholic),
starting a new phase of the conflict. This conflict started the multi-centurial French
31 The humiliation imposed to the Palatinate region had its climax when the Catholic King Maximillian
of Bavaria sent part of the library of the University of Heidelberg to the Vatican, where it still is
according to J. P. Cooper. See COOPER, supra note 28, at 317.
32 Mousnier, supra note 3, at 199. The condottieri, appearing in the Italian peninsula in the fourteenth
century, were mercenaries who recruited, commanded, supplied and paid the private armed forces.
PHILIP BOBBITT, A GUERRA E A PAZ NA HISTÓRIA MODERNA (The Shield of Achilles: War, Peace and the
Course of History) 75 (2003). The troops commanded by the nouveau riche Albrecht von Wallenstein gave
Emperor Frederic II greater freedom than Duke Maximillian of Bavaria who depended on the military to
a higher degree. Osiander, supra note 25, at 256.
33 Mousnier, supra note 3, at 200.
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battle for the fragmentation and dispersion of the German people. The war loses its
religious character (Catholics versus Protestants) to become a geopolitical conflict
between the rival houses of Bourbons and Hapsburg for the domain of the
European Continent. From an ideological perspective, it’s possible to identify a
sharp confrontation between two antagonistic visions of the world: first, a turn
towards the past, incarnated in the Holy Roman Empire, representative of the
Catholic medieval universalism and of the preeminence of the Holy Emperor and
second, towards the future with a radical French argument for freedom, equality
and fraternity among all the States.
A geopolitical reading of the Thirty Years’ War shows that for France, a Bourbon
“island” surrounded by the Hapsburgs’ territories in Iberia and in the long corridor
between the north of Italy and the Netherlands, a victory in Vienna would certainly
mean being relegated to a peripheral position in European politics. In light of this,
France became radical in its position and, in spite of being Catholic, in 1634
intervened directly in the conflict on behalf of Protestants. Thus, the French
dispensed with their secret financial support to enter into an open war against the
Holy Empire. This was sufficient for the Spanish crown, the Madrid branch of the
Hapsburgs, to respond to the declaration of war. It must be mentioned that
religious and nationalist unrest was in progress by this time in the Spanish
provinces situated in the Netherlands, against the Hapsburgs of Madrid. The
United Provinces of Holland constituted a Spanish possession. Thus, Spain viewed
France as a natural ally of the revolting Netherlanders and Protestants, and an
enemy of the Hapsburgs in Europe.34
Over the course of this conflict, the Swedish, led by King Gustaf Adolf, won several
battles against the troops of Ferdinand II and managed to surround Austrian
Prague. After numerous victories in German territory, the French army came to
siege Vienna. Rebellions in Portugal, Catalonia and in Naples weakened Spanish
power, whose fleet saw heavy attacks by the Dutch in British waters. It was up to
Cardinal Richelieu, the powerful prime minister of Louis XIII, and Cardinal
Mazarino (after Richelieu’s death in 1643) to lead France and its allies to great
victories until Austria sought a truce. By that time, Richelieu’s pragmatism was so
great that the Cardinal had made an alliance with the “infidel” Turkish Ottomans
so that they could assess Austria's eastern borders and draw Austrian attention and
resources from Vienna and the west battle front.35 Richelieu’s justification was
purely objective: “a king who sacrificed his state to his faith was exposing himself
to losing both.”36
34 BOBBITT, supra note 32, at 102.
35 BOBBITT, supra note 32, at 103.
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The peace conferences which resulted in the Westphalia Treaties started on
December 4th, 1644 as a truly European congress, though informal negotiations had
already commenced in Hamburg in 1641.37 Complex negotiations (starting by
protocol questions) extended for four long years. It would be the first time in which
treaties would put an end to wars in Europe.
C. The Peace Treaties
Through the Westphalia Treaties, specifically the Instrumentum Pacis Monasteriense
and the Instrumentum Pacis Osnabrugense, both concluded in Latin on October 24,
1648, in the cities of Münster (Catholic) and Osnabrück (Lutheran), considerable
territorial conquests were guaranteed to the French (incorporation of the Alsatia
and of the Bishoprics of Metz, Toul and Verdum) and German territories were
conceded to Sweden. The independence of Switzerland and Holland38 from the
Holy Empire was recognized and Catholicism and Protestantism (Lutherans and
Calvinists) were declared confessions with identical rights. Through the Westphalia
Treaties, the Holy Roman Empire was reduced to a mere fiction as each German
Prince elector was given the very same rights of Sovereignty. Barriers to commerce
were abolished and a long period of relative balance of power in Europe started. It
is said the balance was “relative” because there was an undeniable French
prominence to European policies of the 17th century.39 However, this Gallic
prestige was far from having the same force of the “Iberic era” that took over
international politics long before the discovery of America.
With the celebration of the Peace of Westphalia, each Prince elector had the power
to declare war, to sign peace treaties, establish alliances with other potencies and
govern their respective States as they fancied. Such abilities resumed the jus
foederationis40 as critically important to contemporary constitutional engineering.
36 Paul Sonninno, D’Avaux to Dévot: Politics and Religion in the Thirty Years War, 286 HISTORY 192, 194
(2002).
37 Alfred-Maurice de Zayas, Peace of Westphalia (1648), in ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW
537 (Rudolf Bernhardt ed., 1984).
38 On 15 May 1648, also in the city of Münster, a specific treaty between Spain and the Netherlands put
an end to eighty years of conflict.
39 JACQUES DROZ, HISTOIRE DIPLOMATIQUE: DE 1648 À 1919 (Diplomatic History: From 1648 to 1919) 19
(1972).
40 ANTONIO CASSESE, INTERNATIONAL LAW 21 (2001).
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Though still existent, the Holy Empire turned into a deliberative stage.41 Once the
Princes reached a point of in relation to the Emperor, the fragmentation of the Holy
Roman Empire was inevitable, as it was constituted by an amalgam of more than
three hundred sovereign territories with no national sentiment (counties,
landgraviates, margraviates, duchy archbishoprics, bishoprics, abbeys, free cities
and minor domains of knights of the Empire.)42 The Holy Roman Empire
maintained a mere façade of unity until being dissolved by Napoleon Bonaparte in
1806, when Emperor Francis II renounced the imperial crown. The German
fragmentation pulverized the power of the Hapsburg in Vienna and made the
Hohenzollern dynasty, based in Prussia and in Brandenburg, possible, thus
receiving the territories to the north of the Holy Empire and begin its great rivalry
with “the Austrias.”43 This Hohenzollern’s strategy would become most significant
when the constitution of the German Customs Union (Zollverein) was created at the
initiative of the Prussians in the 19th century.
Both the cities of Münster and Osnabrück, 50 kilometers apart, are situated in the
Westphalia region (an area located northwest of present Germany). That is why this
region’s name was given to those famous treaties. In catholic Münster, the
representative of the Holy Empire negotiated with France and its Catholic allies,
while in protestant Osnabrück, the Ambassadors from the Holy Empire met
Sweden, the German Princes and their Protestant allies44. The presence of the
German Princes at the signing of the treaty was part of the French-Swedish strategy
to weaken the position of the Holy Emperor.
Each of the two treaties took the form of a bilateral agreement, as the multilateral
treaty had not yet been conceived. It is estimated that around three hundred
representatives signed the two treaties. Members of all political forces in Europe
were present, with the exception of Russia, England, Turkey and the Pope, whose
Catholicism was weakened and defeated. In Münster, the Catholic Church acted as
mediator .45 The powerful Pope Innocence X protested firmly against the treaties,
stating, in his Bulla Zelo Domus Dei, of November 26, 1648, that the Peace of
Westphalia was null, invalid, injurious, condemnable, inane and destitute of any
41 Daniel Philpott, Westphalia, Authority and International Society, 47 POLITICAL STUDIES 566, 581 (1999).
42 Mousnier, supra note 3, at 199.
43 DEMÉTRIO MAGNOLI, RELAÇÕES INTERNACIONAIS: TEORIA E HISTÓRIA (International Relations: Theory
and History) 36 (2004).
44 Beaulac, supra note 7, at 163.
45 COOPER, supra note 28, at 352.
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significance and effect for ever more.46 In spite of this personal statement from Pope
Innocence X about the validity of the Westphalia Peace treaties, his nuncio
Monsignor Fabio Chigi would later become Pope Alexander VII, for his close
following of the Conference of Peace and thus knowledge of the new reality of
continental politics outlined in Westphalia.
The number of intervening actors, complexity of the interests involved in the
negotiations of peace, and the logistical difficulties intrinsic to the multiplicity of
idioms and the distance between the two cities, resulted in a much more
sophisticated and exhausting treaty as compared to the bilateral acts commonly put
into effect until then.47
D. Juridical Consequences of Peace: the Core of the Westphalian Paradigm
From a Legal perspective, there were two great legacies from the Peace of
Westphalia: the consolidation of religious freedom (associated with the
secularization of the State) and the formal affirmation of State sovereignty
(associated to the “reason of State”).48 In other words, secularization, centralization
and nationalization occupied a privileged place in the description of the new
Westphalian world that has been built from then. If, on one hand, it is true that
such conquests derived from the efforts of European kings and noblemen dating
back to the period prior to the Protestant Reformation, it is also true that it was the
Westphalia Peace Treaties which formally consolidated such conquests for the first
time with a truly European Constitution; the constitutio Westphalica49. This new
constitution created a set of norms, mutually established, which sought to define
who would be the holders of authority in the European International scene, which
rules were necessary to become one of these actors, and what were the
prerogatives;50 a whole new world order.
46 BOBBITT, supra note 32, at 108.
47 David Parrott, The Peace of Westphalia, 8 JOURNAL OF EARLY MODERN HISTORY 153, 153 (2004).
48 The religious dimension of Westphalia, though, went unnoticed in the analysis made by Richard Falk,
for whom the Westphalian model is only the “state centric, sovereignty-oriented, territorially bounded
global order.” Richard Falk, Revisiting Westphalia, Discovering Post-Westphalia, 4 THE JOURNAL OF ETHICS
311, 312 (2002). Conversely, that religious aspect is affirmed by Meinhard Schröder. See generally
MEINHARD SCHRÖDER ed., 350 JAHRE WESTIFÄLISCHER FRIEDE (350 years of Peace of Westphalia) (1999).
49 JACQUES DROZ, HISTOIRE DIPLOMATIQUE: DE 1648 À 1919 (Diplomatic History: From 1648 to 1919) 9 (1972);
Beaulac, supra note 7, at 162.
50 Daniel Philpott, supra note 41, at 567.
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The three dimensions of the modern state (secularization, centralization and
nationalization) comprise a united trinity because it is ultimately the sovereign, a
strong and centralized Nation-State, that creates inter-confessional peace and
religious freedom. “Der staat war Freiheitsgarant und Friedensstifter”, sentenced
Gehard Robbers.51
With respect to religion, it is verifiable that until the peace treaties of 1648, the
population had to follow the beliefs of their Prince.52 The peace treaties abolished
this compulsion in a way that politics no longer identify with religion.53 The
preservation of this religious freedom was a first step towards the protection of
fundamental rights. On the other hand, once the religious and political unity of the
Middle Ages came to an end, the Empire and the Papacy could no longer intervene
in the internal matters of kingdoms and princedoms.54
51 “The State was guarantor of the liberty and founder of the peace.” Gehard Robbers, Religionrechtliche
Gehalte des Westfälichen Friedens – Wurzeln und Wirkungen (Religion-legal Contents of the Westphalian
Peace - Roots and Effects), in 350 JAHRE WESTIFÄLISCHER FRIEDE (350 years of Peace of Westphalia) 73
(Meinhard Schröder ed., 1999).
52 “Cuius regio eius religio” is a phrase in Latin that means “whose the region is, his religion.” It was with
the “Augsburg Peace” (1555), in the course of the Protestant Reformation, that the territorial princes of
Germany got the right to determine the official religion of their subjects. Gross, supra note 9, at 22. By
this time four-fifths of the German population was Protestant.
53 In fact, Article IV, # 19 of the Instrumentum Pacis Osnabrugensis and Paragraph 27 of the Instrumentum
Pacis Monasteriensis use the same words to affirm the principle of religious tolerance: “(…) and that it
shall be allowable for others who are willing to embrace the Exercise of the Augsburg Confession, to
practise it, as well publickliy [sic] in the Churches at set Hours, as in private in their own Houses, or
other Places appointed for that end by their Ministers of the Divine Word, or by those of their
Neighbours.” Available at the official site of the Acta Pacis Westphalicae [hereinafter “Official Site”],
http://www.pax-westphalica.de. The extensive research on the site, led by Professor Repgen,
represents, in the words of David Parrot, “surely one of the most impressive historical projects of the last
two centuries.” David Parrott, supra note 47, at 154.
54 As to the more mundane aspect of this question, §65 of the Instrumentum Pacis Monasteriensis and
Article VIII, # 4 of the Instrumentum Pacis Osnabrugensis affirm: “That as well at general as particular
Diets, the free Towns, and other States of the Empire, shall have decisive Votes; they shall, without
molestation, keep their Regales, Customs, annual Revenues, Libertys [sic], Privileges to confiscate, to
raise Taxes, and other Rights, lawfully obtain'd [sic] from the Emperor and Empire, or enjoy'd [sic] long
before these Commotions, with a full Jurisdiction within the inclosure [sic] of their Walls, and their
Territorys [sic]: making void at the same time, annulling and for the future prohibiting all Things, which
by Reprisals, Arrests, stopping of Passages, and other prejudicial Acts, either during the War, under
what pretext soever [sic] they have been done and attempted hitherto by private Authority, or may
hereafter without any preceding formality of Right be enterpris'd [sic]. As for the rest, all laudable
Customs of the sacred Roman Empire, the fundamental Constitutions and Laws, shall for the future be
strictly observ'd [sic]; all the Confusions which time War have, or could introduce, being remov'd [sic]
and laid aside.” Official Site, id.
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After Westphalia, the Holy Roman Empire's ability to enforce its ecclesiastical and
political hegemony was virtually destroyed. With the collapse of the universal unit
of the Holy Roman Empire and the Catholic Church, each state could promote its
own interests. To complete this idea, the State welfare, a raison d’État, gave
legitimacy to the means to reach it. A concept of sovereignty that frees the king or
prince, simultaneously, of superior political domains (the Papacy and the Empire),
equal ones (other royalties) and inferiors ones (feudal barons) starts then, what
precisely had characterized all national and international political order of before.55
These ruptures marked the beginning of a new political thought about centralizing
governments, stern borders, exclusive internal sovereignty, and formal interstate
diplomacy. It is then with the Westphalia Peace treaties that can be found the
clearest point in the historical transition of the international scenery to the
normative territorial sovereignty and the prevalence of laicism as fundamental to a
truly multi-polar system of states interested in temporal issues. The use of the term
“system” shows the unity of many individualized differences.56
Moral or religious considerations of the State are moved towards the outskirts of
governmental concerns in a clear separation between heresy and sovereignty, a
phenomenon which was known as the “de-theologyzation of the politics.”57 It was
Armand Jean du Plessis, also known as Cardinal Richelieu, who conceived the
pragmatic concept of raison d`État58, showing that when he put French interests
above his catholic origins, faith and hierarchy, became an ally of the protestant
Princes of a German central Europe, as against the House of Austria, or when he
recognized the Protestants freedom to preach in catholic France, and also when he
edited the “Amnesty of Alais” in 1629, the same year in which Emperor Ferdinand
55 ANTENOR PEREIRA MADRUGA FILHO, A RENÚNCIA À IMUNIDADE DE JURISDIÇÃO PELO ESTADO
BRASILEIRO E O NOVO DIREITO DA IMUNIDADE DE JURISDIÇÃO (The Brazilian State’s Resignation to the
Jurisdiction Immunity and the New Right to the Jurisdiction Immunity) 24 (2003).
56 TRUYOL Y SERRA, supra note 13, at 32. Essentially, a system is a theoretical tool of great utility for the
analysis of reality. In general, it could be defined as a set of elements related, working together in a way
that each element is the function of another element, without a single element working alone. As an
epistemological unit, all systems constitute, then, a collective of elements which maintain some kind of
specific order, organization or structure linked to each other, which confers a sense of unity, yet one
made of many pieces. If a system is a group of units which relate each other, we easily conclude that
three ideas are inherent to a conception from any system: collectivity (the whole), unit (the part) and
interdependency (the structure that unites the parts composing the whole). Further, there are also three
base components for the constitution of any system: 1) the repertoire of its elements (distinct between
themselves and the system itself); 2) the relation between these elements or its organization and
structure; and 3) the organic unit that keeps the elements together for its relations.
57 Östreich, supra note 17, at 192.
58 KISSINGER, supra note 12, at 59.
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II imposed the “Edit of Restitution”. The raison d`État opposed the universal
medieval moral law and indicated the independence and the supremacy of the
State’s interests to face religious questions. Before, politics and religion maintained
an indissoluble union – mere questions of political opportunity are taken as options
of confessional nature. As from Richelieu, however, the situation suffers a radical
alteration: “the interests of a state and the interests of religion are two entirely different
things”, the Cardinal would have said in 1616, when he was still the Bishop of
Luçon59. There is a certain irony in the fact that a catholic Cardinal, the Huguenots’
scourge in his French homeland, was the greatest responsible for expelling religious
questions from European chancelleries in the brink of the Modernity.
Definitely, the verticality of the political-religious relations of the Middle Ages
gives way, in the international scene, to the formal horizontality between the States,
with intense individual character. This priority of interests of each monarchy in
particular illustrates a more sociable feature than a communitarian profile of the
European system of States of the seventeenth century.60 In the internal
environment, in parallel, the absolute power of monarchies is more and more
unquestionable and thus the divine legitimacy of kings plays a fundamental role.
It is fair to recognize then, that a certain notion of “reason of State” was already
known but had a more internal and selfish meaning, differently from the one
developed by Richelieu. In the Middle Ages, the “jus eminens” consisted of the
supreme power of the prince to dispose of the belongings of his subjects, and of the
power to intervene in a supreme way in the rights of people. As described by
Rogério Soares,61 the “jus eminens” embodied the “reason of State where all privileges
were dissolved” or a way to break any positive legal rights at stages or privileged
instances.62 This idea of superiority of the prince’s power with respect to internal
59 Sonninno, supra note 36, at 192.
60 TRUYOL Y SERRA, supra note 13, at 35. The dichotomy between “community” and “society” was
analyzed, among others, by Celso Mello, for whom “the community would represent the following
characteristics: natural formation, organic will (the energy from the organism, which is shown in the
pleasure, habits and memory), and the individuals who would take part in a deeper way in the ordinary
life (…). The society already had different features: volunteer formation, reflected will ( it would be a
product of thinking, dominated by the idea of conclusion and having as a supreme end, the happiness);
and the individuals who would take part in a less deep way of ordinary life.” CELSO D. DE
ALBUQUERQUE MELLO, DIREITO INTERNACIONAL PÚBLICO I (Public International Law I), 45 (1997).
61 ROGÉRIO GUILHERME EHRHARDT SOARES, INTERESSE PÚBLICO, LEGALIDADE E MÉRITO (Public Interest,
Legality and Merity) 55 (1955).
62 EDUARDO GARCÍA DE ENTERRÍA, LA LENGUA DE LOS DERECHOS: LA FORMACIÓN DEL DERECHO PÚBLICO
EUROPEO TRAS LA REVOLUCIÓN FRANCESA (The Language of Rights: The Development of European
Public Law after the French Revolution) 98 (1994).
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affairs was received and improved by the scholars of monarchic absolutism and
became an indispensable tool to the baroque exercise of power; marked by
exaggeration, excess, hyperbole, extravagance, attachment to form, and the
constant conflict between the holy and the profane.
The conflicts of religious origin of the seventeenth century, which weakened the
power of the Catholic Church, strengthened, simultaneously, the temporal power
of the kings in that externally, monarchs were equals, and internally, they had no
one equal in power. Religious chaos gave way to a secular political order that, in
the proceeding 140 years, until 1789, was marked by absolutism, by
bureaucratization and by militarism. What's more, the “de-theologicalization” (lack
of theology) of politics contributed decisively to the secularization of the spirit,
making absolutism the cradle of the illuminist philosophy.63 This marks,
doubtlessly, the most solid basis of European Public Laws,64 from where the
legitimacy of the true paradigmatic character of the Westphalia Peace Treaties
originates.
E. The Conclusion: Auf Wiedersehen, Westphalia?
The Westphalia Peace Treaties did not constitute an obvious, radical, or instant
revolution in the juridical-political model of State similar to the great modern
political revolutions. It was not a “political big bang”. Far from this, according to
Kuhn, History suggests that the road to stable agreement in scientific research is
extraordinarily hard.65 In fact, those pacts of 1648 dramatically changed the way of
seeing and understanding the State. That is, allowing other state actors to come into
the modified continental political performance, despite not having disintegrated the
Holy Roman Empire or the Papacy. The main jus-political categories of this re-
designed world started a progressively larger consensus after 1648.
As opposed to traditional political conceptions of revolution as rupture and
eradication, evolutions are typically persistent, daily qualitative modifications, and
not necessarily linear or cumulative. Peculiar debates on the pre-paradigm times do
not disappear completely with the establishment of the paradigm. Therefore, it is
somewhat controversial to talk about a “Westphalian revolution,” in the sense
63 Robbers, supra note 51, at 73. It is fair to recognize, however, that this “de-theologicalization” (lack of
theology) is just relative, made much truer via external politics rather than internal politics once the
divine attributes of the king are increasingly recalled and reinforced.
64 JEAN-JAQUES ROCHE, RELATIONS INTERNATIONALES (International Relations) 94 (2001).
65 THOMAS KUHN, supra note 6, at 35.
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commonly attributed to the term “revolution.” The non-revolutionary character (in
latu sense) of the Westphalian paradigm, however, does not serve to detract any
significance from it. This is what is found in multifarious Europe from 1648: the
Westphalia Peace contributed to the secularization of politics and the formation of
Public Law in Europe, founded in a secular sovereignty and whose next high points
would be the French Revolution and World War II. In this perspective, 1648, 1789
and 1945 constitute fundamental dates, and real paradigms, even for Western
(Occidental) State, Law and Justice, central categories for our Legal system.
It should not be forgotten that a paradigm, in its best Kuhnian sense, is better
articulated and more coherent whenever it gets to each new occasion on which it is
submitted to an original or more rigorous condition. In this way, the sovereignty
and the secularism from 1648 are not today’s ones, though the 1648’s treaties still
held the capital importance of having definitely included these new regulating
principles in the international institutional matrix. A similar point of view is
defended by Philpott66, for whom the Westphalian Peace Treaties should not be
understood as an “instant metamorphosis”: “Westphalia consolidated the modern
system; it did not create it ex nihilo”. And this key argument shows that it is
irrelevant to know if the modern state appears with the Westphalia Peace Treaties
or if emerged long before, in Iberia and England: the great role of the treaties is that
“Westphalia consolidated the modern system”, inside and outside Europe. In other
words: “in codifying and legitimating the principle of sovereign statehood, the
Westphalian constitution gave birth to the modern states-system.”67
In contrast, Beaulac68 and Osiander,69 a widely recognized minority position,
establish that the “Westphalian Myth” (sic) did not constitute a real paradigm to the
developing system of the modern States. The 1648 treaties did not really alter the
European power relation; the Empire continued strong, together with already
powerful France and Spain, and the Papacy, which was in decline long before and
not necessarily due to the Westphalian peace. Such an argument is not sufficient to
discredit the central position of the Westphalia peace in defining the juridical-
political scene that followed. The realism of this argument about power factors does
not shock the stiffness of the juridical formalism of the sovereignty concept (still
66 Philpott, supra note 41, at 579.
67 BAYLIS & SMITH, supra note 4, at 29-30.
68 Beaulac, supra note 7, at 175. Stéphane Beaulac, Westphalia, Dualism and Contextual Interpretation: How to
Better Engage International Law in Domestic Judicial Decisions, 3 EUROPEAN UNIVERSITY INSTITUTE/MAX
WEBER PROGRAMME WORKING PAPERS (2007).
69 Osiander, supra note 25, at 261.
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undeniable today), upon which all Public Law which follows is set (along with
secularism and the reason of state). There is no incoherence in the
judicial/territorial/formal equality among the States and its intrinsic
geopolitical/hegemonic inequality, to use a conceptual reference used by Falk.70 An
unconditional sovereignty, disconnected from impressions of power and
economical influences, never really existed. Furthermore, the complexities of the
Westphalian phenomenon have multiple meanings.
For scholars of international relations, the Westphalia Treaties already have a
central meaning and even more relevance to jurisprudence; whose normative-
prescriptive character finds in those pacts the formal instauration of an
international order based on juridical equality among secular states. As for that, it is
fair to recognize that a same paradigm can have distinct values to different study
fields such as Jurisprudence and International Relations. It still must be registered
that it is exactly because Westphalia affirms a jus-political paradigm that can be
said today that in 1648 and soon after this paradigm was not completely matured:
the conscience of initial anomaly comes from the improvement and refining of the
conceptual categories State, Law and Sovereignty along time, what in fact, allowed
it to come out as a winner in the eternal conflict with other models, other theories,
other paradigms. There is no doubt, however, that Westphalia takes out of place,
definitely, the conceptual web through which we understand the State.
It is wrong to infer that the importance of the Westphalia Peace Treaties is simply
the product of 19th and 20th century work, as if rescued from forgotten historical
facts. In the eyes of its contemporaries, Peace was solemnly and suitably
commemorated.71 Long before and far away from the narrow limits of legal dogma,
seventeenth-century Dutch painter Gerard ter Borch, captured with unique
perspicacity the distinctness and consequence of the Westphalia Peace, in his
picture “The Swearing of the Oath of Ratification of the Treaty of Münster,” painted
during the last year of the Thirty Years’ War.72 In that painting, it stays clear that art
does not modify the world as a tool but it has its magnitude: the greatness of art
resides in its incapacity of reducing the world to a simple ephemerous and
70 Falk, supra note 48, at 312.
71 Claire Gantet, Peace Ceremonies and Respect for Authority: the Res Publica, 1648-1660, 3 FRENCH HISTORY
275, 276 (2004).
72 Gerard ter Borch (1617-1681), “The Swearing of the Oath of Ratification of the Treaty of Münster”, 1648, oil
on copper, 45,4 cm x 58,5 cm, London National Gallery. Available at
http://www.nationalgallery.org.uk. The picture doesn’t portray the ceremony of conclusion of the
Instrumentum Pacis Monasteriense of Oct. 24th 1648, but instead shows the signing of the previous treaty
on May 15th, 1648, also celebrated in Münster, between Spain and the Netherlands.
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objective representation of the present and of the real – for ideological, pedagogical,
hedonistic or religious reasons, for more realistic or figurative it may seem.
Gerard ter Borch's masterpiece portrays the main room (Ratskammer, after
Friedenssaal) of the Münster Town Hall at the very moment at which the peace
treaty is sworn by the authorities of Spain and the Netherlands. The center of the
screen is occupied by the Spanish and Dutch versions of the treaty, both in Latin,
properly sealed, and displayed with exuberance on a round table, which is covered
with a heavy green velvet tablecloth. The leitmotiv of the painting is not the
independence of the Netherlands or the victory of any religious sect, or political
idea, but the swearing of the treaty itself. The artist puts the centrality and force of
Law, symbolized by the peace treaty, into relief in the semi-circular depiction of the
authorities who watch the scene, and in the use of light, which focus on the center
of the action. That is, the light becomes dimmer, both horizontally and vertically, as
the eyes move away from the treaties in the center of the painting.
Other aspects of the painting demonstrate the absolute political and religious parity
between the delegations: first, the picturesque fact that both delegations are
swearing the treaty simultaneously (what, for protocol and practical reasons, is
unlikely to have happened); second, the absence of significant distinctions among
the seventy-seven Catholics, Protestants, Spanish and Dutch, civilians and military
who witnessed the swearing, enhancing the universal, ecumenical, and anti-
partisan perspective of the painting; and finally, no authority is attributed greater
attention. In the front row of the scene, just two characters have clothing different
in color from the others: to the left, an anonymous soldier watches from behind an
empty chair and wears the colors of the city of Münster, referencing the city in
which the treaty was signed.73 To the right of the treaties, a diplomat74 with a
magnificent red toga, gives measure to the importance and prominence that
chancelleries would subsequently enjoy. The fact that the six representatives from
the Netherlands swear the treaty with their fingers up, and the two Spanish
ambassadors with their right hand over the Bible and the crucifix indicates that
Protestants and Catholics have identical dignity. In the painting, there are no
winners or defeated, infidels or heretics. Only in the top right corner of the screen
did Gerard ter Borch make reference to the clergy: the figure of a monk, maybe the
Pryor of Münster with his habitual brown tunic, watches the scene over the back of
73 The empty chair (a traditional allegory for power) is another indication of the restlessness between the
two delegations.
74 According to Kettering, the diplomat referred to is the Dutch Johannes Christopherus Belne, Secretary
of Antoine Brun, the second man of the Spanish delegation in that Conference. ALISON MCNEIL
KETTERING, GERARD TER BORCH AND THE TREATY OF MÜNSTER 9 (1998).
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Spanish Catholics and behind a natty diplomat in red. This order of precedence
(opposing red/power to brown/humbleness) certainly is no accident. Although
Münster is a Catholic city, the religious symbols are restricted to the sculpture of a
Madonna. Recognized by Catholics and Protestants as the mother of Christ-God,
the discrete sculpture blesses the scene. Curiously, the only light that invades the
Friedenssaal is that which enters through the window of the right superior corner of
the room, the same light that illuminated and made warm all of Europe.75 In this
work of art, as in many others, there is an opening which reveals a lot about the
reason of things and once more it is in the lying of art where the more consistent
true can be found.
Today, the international scene is no longer exclusively state-bound; Sovereignty has
become more and more shared; there is a certain flow to commercial borders, and a
war in the magnitude of that from 1618-1648 seems more and more remote (aspects,
no doubt, post-Westphalian).76 On the other hand, the state is still an indispensable
actor in the modulation and execution of Law and in the understanding of
international relations. The case of East Timor, the last nation to emerge from the
turbulent 20th century, underlines the power of statehood in the era of
Globalization. That is, for the international community, the new country was
neither too small nor too weak to establish itself as a nation-state. The United
Nations efforts towards State-Building in Kosovo, Afghanistan, and Iraq are also
great examples of the role now played by Westphalian statehood.
In spite of renewed religious fundamentalism in many places (a rancid, eminently
pre-Westphalian note), the maintenance of multicultural dialogue and the
guarantee of freedom of conscience are a concern at the top of international and
domestic political agendas. These two aspects give us a sample of the validity of the
Westphalian elements of State, even though these elements are not yet recognized
as greatest legacies, responsible for the permanent updating of the old
“Westphalian paradigm.” The greatest evidence that the Peace Treaties of 1648
remain central to the understanding of our present model of State and Law, is the
fact that more than 350 years after its signature, the constitution of any juridical
order claims for a democratic construction, always upwards, from the basis to the
summit (from down below), never the opposite way, arbitrarily, by the hands of a
Pope or an Emperor.
75 According to Israel, Ter Borch was very proud of his masterpiece and conscious of its significance - so
much so that he commissioned an engraver, Jonas Suijderhoef, to reproduce the picture. Thanks to this
engraver, Ter Borch’s work could be hung on the walls on the major public buildings in Netherlands
and elsewhere. JONATHAN I. ISRAEL, CONFLICT OF EMPIRES : SPAIN, THE LOW COUNTRIES AND THE
STRUGGLE FOR WORLD SUPREMACY 1585-1713 104 (1997).
76 See, among others, Stephen Krasner’s theoretical contributions in the field of Political Science.
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The globalization of the contemporary international economy imposes many
important challenges to the State. Such challenges, instead of weakening the State's
authority, reinforces its vitality and ability to adapt to the new economic scene,
exercising its sovereignty in deciding policies capable of placing it within the arena
of a new international market. Among these national policies are the gathering of
huge economic regional blocks such as Mercosul and the European Union. In these
processes of regional integration, Law exerts a fundamental role. It is through Law
(based on the tripod Stateness-rationality-oneness) that more stable and tighter
integrative ties are constructed; clear evidence that the word triumphed over the
sword in the field of economic integration.
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