'Constitutio Westphalica': Europe's First Constitution?

Abstract

The paper examines the so-called constitutio Westphalica based on the Peace of Westphalia which ended the Thirty Years War in 1648. It is suggested that, much before William Penn's or Abbe de Saint-Pierre's projects at the turn of the 18th century or even Immanuel Kant's ambition at the turn of the 19th century, the two treaties of Westphalia represent indeed the first instance of supranational constitution in Europe. In fact, these peace agreements between the belligerents were explicitly dealing with constitutional matters within the territory of the Holy Roman Empire.

Westphalia has had a profound social effect by suggesting that, with the consecration of state sovereignty as a structural idee-force, a new international model came into being, a model of international relations which has remained to this day. It is somewhat ironic, therefore, to see that the latest episode in the development of a formal constitution for modern Europe centres on, and indeed struggles over, the very same idea. However, it will be demonstrated in the paper that sovereignty, as a social construct, has formed part of a continuing system originating before the Thirty Years War and continuing long after the Peace that ended it. Westphalia did not put an end to multi-layered authority in Europe, but simply constituted a case of redistribution of power within the Holy Roman Empire. In that sense, the deals struck in 1648 are not dissimilar to the many treaties establishing the European Union in the 20th century, which makes it all the more relevant to revisit Munster and Osnabruck.

Keywords: European Law, International Law, Constitutional Law, History of International Law, Law and Humanities

JEL Classification: K30, K33, K39