Wednesday, October 10, 2007

Straumann on The Peace of Westphalia (1648) as a Secular Constitution

Benjamin Straumann, New York University School of Law, has posted a new paper, The Peace of Westphalia (1648) as a Secular Constitution. Here's the abstract:
“Westphalia” is often used as shorthand for a system of equal and sovereign states; and the peace treaties of Westphalia are sometimes said to have established the modern concept of sovereign statehood. This paper seeks to shift the focus from this popular conception of the Westphalian treaties, and instead to treat them as constitutional documents. I argue that the Westphalian constitutional treaties successfully solved the problem of deep religious disagreement by imposing proto-liberal religious liberties on the estates of the Holy Roman Empire, which left the subjects with exclusively secular duties towards their authorities. The Westphalian constitution also addressed the issue of compliance with its religious provisions by establishing a secular procedure to adjudicate religious disputes that excluded religious reasoning from the courts. This account of Westphalia yields important implications for our view of sovereignty in the Holy Roman Empire. It is argued that Westphalia established a secular order by taking sovereignty over religious affairs away from the discretion of territorial princes and by establishing a proto-liberal legal distinction between private and public affairs. Westphalia must thus be seen as a very successful constitutional experiment in dealing with deep religious disagreements.

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