The Westphalian Model in Defining International Law: Challenging the Myth

Abstract

The so-called "Westphalian" model of international legal order, based on the Peace of Westphalia, has had a profound social effect by suggesting that a new international system came into being with the end of the Thirty Years War in 1648. This system has defined not only the present state of international society but also the present state of international law. Central to this new international system was that Westphalia consecrated the notion of "state sovereignty" as the fundamental structural idea of that system. The paper shows, however, that such a model has formed part of a continuing process of development originating before 1648 and continuing long after 1648. The Peace of Westphalia did not put an end to multi-layered authority in Europe, but simply constituted a case of redistribution of authority within the Holy Roman Empire. It is argued that Westphalia actually constitutes a myth, an aetiological myth, a myth by which the leading actors in international society have sought to explain the becoming and being of the international system, for their own purposes and to their own satisfaction. This social construction allowed them to have absolute and total power over their territory, unchecked and unaccountable to any higher legal regime or adjudicative authority.

Keywords: International Law, History of International Law, Theory of International Law, Law and Humanities, International Relations

JEL Classification: K30, K33, K39