Sovereignty,, and the Westphalian Myth Andreas Osiander

The350th anniversary of thePeace of Westphaliain 1998 was markedby a urry ofconferences and publications by historians, but it was largelyignored in the disciplineof internationalrelations (IR). Thisoversight is oddbecause in IRtheend ofthe Thirty Years’ War isregarded as the beginning of the international system withwhich the discipline has traditionallydealt. Indeed, the international system has beennamed for the1648 peace. 1 For sometime now, this “ Westphaliansystem,” alongwith the concept of sovereigntyat its core, has been a subjectof debate:Are the“ pillarsof the Westphalian temple decaying” ? 2 Are we moving“ beyond ”? 3 Inthis debate, “ Westphalia”constitutes the taken-for-granted template against whichcurrent change should be judged. I contend,however, that the discipline theorizesagainst the backdrop of apastthat is largelyimaginary. I showhere that theaccepted IR narrativeabout Westphalia is a myth. Inthe Ž rst sectionof thearticle I discusswhat this narrative says about the Thirty Years’War. Inthe second section I discussthe alleged link between 1648 and the creationof a new,-based international system. In the third section I discussthe Holy Roman — with which, though this is seldom noted, the Peaceof Westphalia was almostexclusively concerned. In the process it will becomeclear that “ Westphalia”— shorthandfor anarrativepurportedly about the seventeenthcentury— is reallya productof the nineteenth- and twentieth-century Žxationon theconcept of sovereignty.I concludeby discussinghow what I callthe ideologyof sovereignty has hampered the development of IR theoryand by

Iwishto express mygratitude both to the anonymous reviewers andto the editors of IO forinvaluable helpwith this article. 1.For a recent critiqueof thisusage from a non-Anglo-Saxonperspective, see Duchhardt1999. 2.Zacher 1992. 3.Lyons and Mastanduno 1995.

InternationalOrganization 55,2, Spring 2001, pp. 251– 287 © 2001by TheIO Foundationand the Instituteof Technology 252 InternationalOrganization suggestingthat the historical phenomena analyzed in thisarticle may help us togain abettertheoretical understanding of contemporary international .

The Thirty Years’War and the Problem ofHegemonialAmbition

Accordingto thestandard view, the Thirty Years’ War was astrugglebetween two mainparties. On one side were the“ universalist”actors: the emperor and the Spanishking, both members of theHabsburg . Loyal to the Church of Rome, theyasserted their right, and that of thePope, to control in its entirety. Theiropponents were the“ particularist”actors, speciŽ cally , the ,, and , as well as the German . These actors rejected imperialoverlordship and (for themost part) the authority of the , upholding insteadthe right of all states to full independence (“ sovereignty” ). Quotesshowing the prevalence of this view in IR areeasily adduced. David Boucherstates that the settlement “ was designedto undermine the hegemonic aspirationsof the Habsburgs.” 4 HedleyBull says that it “ markedthe end of Habsburgpretensions to universal .” 5 Accordingto Graham Evans and Jeffrey Newnham’s Dictionaryof World Politics, thesettlement “ markedthe culminationof the anti-hegemonic struggle against the Habsburg aspirations for a supranationalempire.” 6 For KalHolsti the war was mainlyfought over “ religious toleration. ..andthe hegemonic ambitions of the Hapsburg family complex.” 7 Accordingto MichaelSheehan, the peace “ refutedthe aspirations of thepapacy and theHoly to recreate a singleChristian .” 8 Albeitwidely shared, this interpretation is dubious.It hinges on thenotion that the Habsburgswere athreatto the“ nascent”individual states. 9 But,quite apart from the factthat most of the states in question had been around for alongtime, neither their survivalnor even their independence was atstake in this war. Noneof the actors Žghtingthe Habsburgs went to war for defensivepurposes, as I showin the remainderof this section. 10

4.Boucher 1998, 290. 5.Bull 1977, 32. 6.Evans and Newnham 1990,420. 7.Holsti 1991, 34. 8.Sheehan 1996, 38. 9.Holsti 1991, 26. 10.Recent treatments ofthewar includeAsch 1997;Burkhardt 1992 and 1998; Schmidt 1998; and Schormann1993. While I am indebtedto these works,in terms ofinterpretationthe synthesis offered here is my own. TheWestphalian Myth 253

TheBohemian Secession and the Near Collapse of Habsburg Power inCentral

Theoriginal Bohemian crisis did not break out because the Habsburgs were powerful,but because in important respects they were weak.In the early seven- teenthcentury the system of governmentthroughout much of Europe,including the Habsburgterritories in , was “dualist”(the technical term employed byhistorians).Power was sharedbetween the and the notables of therealm, knownas the estates. The “ balanceof power”between these two poles might favor oneside or the other; in the case of the Habsburg kingdoms of and Hungaryit had increasingly come to favorthe estates. While the dynasty remained Catholic,the estates were largelyProtestant. Anxious to forestallany attempt by the crownto limit their religious freedom, the Bohemian and Hungarian estates took advantageof aquarrelwithin the dynasty to strengthen their constitutional position. Toconsolidate those gains and to maintain their own in uence, in 1618 the radicalsamong the Bohemian estates initiated an uprising that sidelined the pro-Habsburg“ doves”and eliminated any remaining power of the Habsburg-held crown.Eventually, following the death of EmperorMatthew, a Habsburg,in 1619, theBohemian estates deposed his heir, Ferdinand, and persuaded the elector PalatineFrederick, a German Protestant,to be their . The Hungarian estates also electeda Protestant,Ga ´borBethlen, to replace Ferdinand. The Habsburgs seemed setnow to losethe imperial title as well.The Bohemian king was amemberof the seven-strongelectoral college by which the emperor was chosen.With the Bohe- miancrown in Protestant hands, there would be aProtestantmajority in thecollege. TheHabsburg position in central Europe was thuson thebrink of collapse.Twice in1619 rebel troops reached the suburbs of . The Spanish king sent both moneyand troops, but the imminent resumption of the Spanish-Dutch war (atthe expiryin 1621of atwelve-yeartruce) made it difŽcult for himto put his full military weightbehind Ferdinand. In this situation, a crucialquestion was whatthe German princeswould do. Some Protestant princes and free citiesof theempire had formed ananti-Catholic alliance, called the “ Union.”Its leaderwas noneother than the electorPalatine, soon to be the new Bohemian king. A counteralliancenamed the “League”was headedby the of , the most powerful of the Catholic Germanprinces. In the past, he hadplayed second Ž ddleto the Habsburgs but had donehis best to rivaltheir in uence in theempire. Now, withFerdinand (to whom hewas alsoclosely related) in a desperatesituation and dependent on League support,the ambitious duke found himself an arbiter of hiskinsman’ s fate. As itturned out, rather than welcome the opportunity to bring the Habsburgs down,the German princes, including, crucially, both the Protestant ones and Bavaria,instead distanced themselves from Frederick.His collusionwith rebels againsttheir legitimate ruler alienated his fellow princes. Moreover, he was expectedto take advantage of the religious dimension of the con ict and use his positionas headof theUnion to defendhis “ill-gotten”royal title. This would almost 254 InternationalOrganization certainlylead to war inthe empire at large between the Union and the League, a prospectuniversally dreaded. Whenthe imperial throne was leftvacant by thedeath of EmperorMatthew, the electoralcollege elected Ferdinand emperor in August1619. SigniŽ cantly, it didso unanimously,with all three Protestant votes going to Ferdinand. A memberof the college,Frederick sought to delay the proceedings until after the Bohemian estates haddeposed Ferdinand. But though they did so a few daysbefore the election, Ferdinand,not Frederick, was allowedto castthe Bohemian vote. Contrary to what Frederickhad hoped and worked for, the duke of Bavariarefused to bea candidate againstFerdinand. In the end, Frederick voted for Ferdinandhimself to avoid a gratuitousfurther provocation. AlthoughFrederick did mount the Bohemian throne, he failed to obtain the Britishand Dutch support on which he had counted. In , the Union eventuallyput its desire to prevent the crisis from spreadingto therest of the empire aheadof other considerations. Despite Frederick’ s positionas itsleader, the Union accepteda nonaggressionpact with the . This enabled the League toassist Ferdinand against the elector Palatine. The Union then fell apart: while religiousafŽ liation always played an important role in the con ict, at no point between1618 and 1648 did it producestable cleavages along religious lines. Aided notonly by the duke of Bavaria and League troops but also by troops of the Protestantelector of Saxony, Ferdinand reconquered the Bohemian capital in November1620 and drove Frederick into exile. Ga ´borBethlen stepped down as rulerof Hungary and made peace with Ferdinand. TheHabsburgs thus preserved their position in central Europe, but, inevitably, Ferdinandemerged from thecrisis a somewhatdiminished Ž gure.He was emperor now,but the power of that ofŽ ce was limitedand subject to constitutional checks andbalances (see the third section). He was alsoheavily indebted, not just morally butŽ nancially,to the rulers of Saxonyand Bavaria. His fatehad been in their hands, andhe had been forced to buy their support through the promise of signiŽ cant rewards. Ferdinandtransferred important Habsburg territories— respectively, Lusa- tiaand Upper Austria— to their temporary ownership since he could not meet his obligationsto them immediately (and would not for alongtime to come; in fact, Lusatiawas eventuallytransferred to Saxony for good).

TheDanish Bid for Expansion and the Sudden Rise and Declineof Habsburg in Germany Throughoutthis initial phase of thewar, keyactors regarded Habsburg power as less threateningthan the prospect of its collapse. This only changed in the second, “Danish”phase of the war (1625–29). Of thetwo branches of theHabsburg dynasty, the Spanish branch was themore powerful;but though its position in the European system was formidable,it didnot threatenthe independence of other actors. Its dominionsformed the largest mon- archyin Europe in geographical, but not demographical, terms; militarily, this was TheWestphalian Myth 255 notan undilutedadvantage. In the Spanish-Dutch con ict the Dutch were wellable tohold their own. On its expiry in 1621,a twelve-yeartruce between the two actors couldhave been renewed or even turned into a properpeace treaty. There was a peaceparty on both sides. Despite the truce, however, the Dutch had continued to harassthe Spanishcolonies, and the trade with them, doing much economic damage. Inresuming the war, theSpanish government had few illusionsthat Dutch inde- pendencecould be undone. It did hope to improve the terms on which Dutch sovereigntywould Ž nallybe recognizedover those accepted in 1609and regarded ashumiliating; meanwhile, open war mightrelieve the pressure on the colonies. Conversely,in 1621the prevailing view among the Dutch was thatresuming the war wouldbring greater concessions from . 11 Dutchwillingness to engage the Spanish— who, therefore, would not be able to interveneforcefully in Germany— emboldened the Danish king to preparea military strikeagainst troops of the Catholic League (not the emperor) who remained garrisonedin northGermany after the Žghtagainst Frederick. The king, a Protestant, fearedthat these troops would be employed to repossess some north German ecclesiasticalprincipalities that had passed into Protestant hands— illegally, from a Catholicpoint of view. Theprincipalities in question were bishopricswhose incumbents had the same rightsas secularprinces of theempire except that their position was nothereditary. Theywere electedfor lifeby the cathedral chapters. The 1555 religious settlement concludedamong the princes and free citiesof theempire gave them the power to determinefreely whether their lands should be Catholic or Protestant. However, ecclesiasticalterritories were excludedfrom thisprovision by aclauseknown as the reservatumecclesiasticum. Withthe important exception only of theHabsburgs and Bavaria,most secular princes in the empire and most of the free citieswere Protestant,which made the reservatumecclesiasticum crucialfor maintainingthe politicalrole of Catholicism in theempire. Unfortunately for theCatholic side, this clausewas contestedby theProtestant camp and had not stopped further Protestant inroadsinto ecclesiastical territories. Canonswould turn Protestant and then elect to the episcopal see some member of aProtestantdynasty who they hoped would protect them, or whobribed or bullied them.And once a powerfulprincely house got hold of thesee, dislodging it would bealmostimpossible, since it wouldthen control the appointment of new canons. It was clearthat the more bishoprics were lostto in this fashion, the morethe chances of recoveringany of them for theCatholic camp diminished. Thisproblem of critical mass explainsthe importance of who would secure controlof the north German bishoprics. No one understood this better than the ProtestantDanish king. Operating in theshadow of theBohemian crisis, in theearly 1620she had cajoled no less than three cathedral chapters— Bremen, , and —into electing the second of his two sons to succeed the current

11.See Elliott1998, 27; and Israel 1998,117– 19. 256 InternationalOrganization incumbents(still alive at that point); and he was workingon Osnabru ¨ck.With the promiseof Dutch and British subsidies, and the hesitant support of the Protestant northGerman princes and free ,he nowdeployed an army in northGermany. His mainpurpose was todefend his claims and north German Protestantism; but to qualifyfor Dutchand British subsidies he alsohad to adoptthe cause of thedeposed electorPalatine. With Spain distracted by the Dutch, the emperor and the Catholic Leaguelooked weak enough for theDanish venture to be promising. Unpredictably,at this point an altogether exceptional Ž gureentered the scene: Albrechtvon Wallenstein. A nouveauriche Bohemian nobleman with uncommon managerialand strategic abilities, he offered the impecunious emperor an army, whichhe wouldraise and initially pay for himself(he would later bill the emperor punctiliouslyfor allexpenditures incurred). This  amboyantgesture struck many at theimperial court as toobizarre, and indeed humiliating, to accept; however, after muchdeliberation, the court did accept the offer indirectresponse to news that the Danishking was leadingan army to secure the reinstatement of Frederick. The emperorat that time had few troopsof hisown; those of theLeague were notunder hiscommand and essentially were controlledby the duke of Bavaria. In 1629 Wallensteinforced the Danish king to accept a peacethat basically restored the statusquo ante. The king had to renounce the bishoprics to which he had had his son elected(but none of them had actually passed into the son’ s possessionyet). As aresultof the failed Danish intervention, and thanks, in large part, to Wallenstein,north Germany now found itself under the military control of the emperor.Many feared that he would make himself “ themaster of Germany,” as a famousanonymous pamphlet of 1628put it, which no emperorhad been in thepast. Inretrospect, it seems clear that this was nothis aim; Habsburg archives have yieldedno evidence for anysuch program. 12 But,in the heated atmosphere of the time,everything the emperor did was takenas corroboration of sinister,oppressive designs.Events in Bohemiaseemed to set an alarming precedent. There, Ferdinand restoredthe leading role both of Catholicism and by expropriating and expellingmuch of the Protestant and enacting a newconstitution that reducedthe prerogatives of the estates. Would the emperor attempt something similarin Germany? Havingdeposed the existing dynasty for supportingthe Danish king, in 1628 Ferdinandmade Wallenstein duke of , a largenorth German princi- pality.For thecash-starved emperor, this move was, notleast, a meansto dispose ofsomedebts. But it causedstrong antagonism. The Protestant camp was rattledby thistransferal of aProtestantprincipality to a Catholicby a strokeof the pen, and theprinces of theempire, Catholic and Protestant alike, were concernedabout the summaryremoval of anancient ruling family in favorof adespisedupstart. In 1629 Ferdinandproceeded to decree the re-catholicization of all church assets that had passedinto Protestant hands after the religious settlement. This so-called

12.See Albrecht1990; Haan 1977;and Sturmberger 1957. TheWestphalian Myth 257

Edictof Restitution,designed to enforce the reservatumecclesiasticum of 1555, was tobe applied to the entire empire. We haveseen how the Danish intervention was dictatedby a combinationof territorialambition and concern over the religious balance of powerin the empire. Thisconcern was alsobehind the , whose main purpose was to stop,indeed reverse, the continual decline in the number of Catholic ecclesiastical princesof the empire since 1555 and to recover other assets (such as monastic endowments)for theCatholic church. Again, the measure caused much discontent. Notonly would many Protestant princes suffer importantlosses; there was concern evenamong Catholic princes of theempire about this kind of imperialunilateralism. Itis often implied today that, in some roundabout way, the edict aimed at strengtheningthe emperor. More plausibly, its main motive was genuinelyreligious, sinceFerdinand II was anextremely pious man. Any gain for theemperor himself was outweighedby the political cost of the measure. By issuing the edict, he effectivelyturned on his own followers in the Protestant camp. He nowlost the supportof the elector of Saxony,with disastrous political and military consequences overthe next few years.At thesame time, the edict itself would have to be enforced militarily.It thus effectively diminished the emperor’ s resourceswhile increasing, andseriously overstretching, his commitments. Thatthe measure dangerously weakened Ferdinand was theview both of Wallenstein,who initially refused to carryit out, and of theSpanish government. 13 Madridwas furiousabout the edict because it needed all the troops that Ferdinand couldspare to supportit in a war againstFrance that had broken out in northern in1628. Although Wallenstein insisted that he couldspare no troops,Ferdinand, the recentbeneŽ ciary of Spanish aid, sent some troops to Italy anyway. This caused furtherirritation in Germany, where there was strongsentiment that the empire shouldnot become involved in the long-standing Franco-Spanish rivalry just becausethe emperor was acousinof theSpanish king. Thepowerful electoral college leveled its anger at Ferdinand when it met with him(as itdid quite regularly) at in 1630. Since an emperor usually expectedthe college to elect his own chosen successor during his lifetime, he had astrongstake in maintaining good relations with it. The cost of not doing so was broughthome to Ferdinand when, at Regensburg, the college denied his request to electhis eldest son emperor-designate. The college also demanded that he dismiss hisunpopular , Wallenstein, along with three-quarters of his troops; theremaining troops were tobemergedwith the League army, which Ferdinand did notcontrol. Furthermore, the college told the emperor to withdraw from Italy. Strikingly,Ferdinand met these demands in full even though the college still refused tosettle his succession. Before the conference was over,Wallenstein was removed from ofŽce and his army was beingdisbanded. Ferdinand accepted a peace agreementwith France while he was stillat Regensburg.

13.Elliott 1998, 32. 258 InternationalOrganization

TheSwedish Bid for Expansion and the French Attempt toBreak Habsburg Power

If, again,the war continued,it was becausethe Swedish and French crowns saw it asa meansto enhancetheir own positions in Europeby erodingthe position of the Habsburgs. Followingthe defeat of theDanish king, his rival in theBaltic, King Gustaf Adolf ofSweden,now decided to takehis turn to attackthe emperor, ostensibly to protect Germanyfrom Habsburgoppression in general and the Edict of Restitution in particular.While the electoral college met at Regensburg ( to 1630), Swedishtroops invaded north Germany (in early July), though no oneat Regensburg appearsto have taken the invasion seriously. Theinvasion at Žrst was hamperedby ŽnancialdifŽ culties and a disinclinationby Protestantprinces of the empire to rally around their self-appointed savior, King GustafAdolf. Moreover, it was apparentlyassumed that the Swedish king’ s main aimwas torestore Mecklenburg to its rightful Protestant dynasty. This meant that Wallensteinwould be deprived of that duchy, a prospectthat many in the empire welcomed.But once the Swedes had overcome their initial difŽ culties, it became clearthat their agenda was notto conducta geographicallylimited intervention but todeliver a decisiveblow to bothHabsburg and German Catholicism. The League armyproved no matchfor theSwedish troops, and many Protestant princes and free citiesof theempire now joinedthe Swedish side, though reluctantly and for themost partin response to military pressure. It is ironic that Gustaf Adolf invaded the empirefor thestated purpose of removingthe threat posed by theemperor just when theelectoral college stripped Ferdinand of muchof his military power. Indeed, the Swedishinvasion brought the collapse of the Regensburg agreement and the reinstatementof Wallenstein as commander of theemperor’ s forces. After thedecisive Swedish defeat of 1634, and with both Gustaf Adolf and Wallensteindead, the emperor and the Protestant elector of Saxony reached an agreement.The princes and free citiesof the empire were invitedto accede to this so-calledPeace of ,and almost all of themdid. If thatsettlement had entered intoforce, the emperor would have secured substantial gains for theCatholic church butwould, for allpractical purposes, have abandoned the Edict of Restitution.The Mecklenburgdynasty would have been rehabilitated. Alliances of the princes and citiesof the empire with each other (such as the Union and the League) would have beenbanned but notalliances with actors outside the empire.There would have been inthe future only a singlearmy in the empire, the greater part of whichwould have beenunder the command of theemperor, with smaller contingents commanded by therulers of Saxonyand Bavaria. Although this settlement would have strengthened theemperor, the point should not be taken too far. Thepeace would have left the constitutionof the empire, with its checks on imperial power, unchanged in other respects.Certainly, the electoral college was sufŽciently pleased with Ferdinand to proceed,in 1636,with the election of hisson as emperor-designate(who succeeded TheWestphalian Myth 259

Ferdinandat hisdeath in 1637). But the peace did not take effect. Now, theFrench king(re-)entered the war toprevent the emperor from gettingout of it. After crushingFrench Protestantism and its threat to the authority of the crown militarily(the main Protestant stronghold, La Rochelle, surrendered in 1628), the Frenchchief minister, , concentrated on enhancing his king’ s positionabroad. In order to drainHabsburg resources Richelieu sought to engagethe Habsburgson asmanyfronts as possible.He pursuedthe aim of Žnallywinning the long-standingcompetition between the Habsburgs and the House of Bourbon. Richelieu’s war withSpain in northernItaly over the succession of thelate duke ofMantua (1628 –31)has already been mentioned. Through his success there— owingin part to the electoral college’ s pressureon the emperor to withdraw his supportfor Spain—Richelieu gained a footholdin northernItaly (in particular, the keyfortress ofPinerolo).This threatened Spain’ s extensivepossessions centered in Milan,which were importantnot only in themselves but also for theSpanish war effortin theLow Countries: The main supply route between Spain and the Spanish southernNetherlands was bysea; however, the naval strength of theDutch (in the northernNetherlands) made that route hazardous, and so the preferred route was by landfrom northernItaly through the Valley. ToincreaseSpanish dependence on thisoverland route vulnerable to attackfrom Frenchsoil, Richelieu was anxiousto maintain military pressure on Spain. For a while(1631– 35) he was contentto makewar byproxyand channeled large amounts ofmoneyto the Dutch to help pay for theirwar againstSpain. He alsochanneled moneyto the Swedes. The Swedish king was engagedin a war withthe king of Poland,but in 1629 Richelieu brokered a trucebetween them with the explicit purposeof enablingGustaf Adolf to attackthe emperor instead. Richelieu’ s motive was toprevent Ferdinand from beingof assistance to the Spanish king now that Denmarkhad quit the war. OnceRichelieu had established a Frenchpresence in northern Italy, he prepared toblock the Rhine Valley, at last declaring war onthe Habsburgs almost simulta- neouslywith the Peace of Prague.He fearedthat after the Swedes’ crushing defeat in1634, nonmilitary French support might not be enoughto keepthem Ž ghting.At thesame time he was surprisedby thescope of their operations in theempire. Both theirgeographic extent and their devastation of Catholic territories impinged on whatRichelieu thought should be a Frenchzone of in uence, namely, southern and westernGermany and the lesser Catholic princes of the empire. By resuming active warfare againstthe Habsburgs, he could keep the Swedes in the war andalso counterbalancethem.

Summary Iamaware thathistorians specializing in thisperiod will regard my briefaccount of thewar asoutrageously simpliŽ ed. Even so, it demonstrates the complexity of the conict and the variety of considerations guiding the belligerents, factors that make thesearch for asinglefundamental issue a dubiousundertaking. However, it should 260 InternationalOrganization havebecome clear that the very issue generally put forward, thestruggle between universalismand particularism or between empire and sovereignty, has little to commendit. The war was notfought because the Habsburgs were strainingto expandtheir role, but because other actors were seekingto diminish it. The Habsburgsdid not want this war anddid not threaten the independence of other actors,least of all outside the empire. Conversely, once the war hadbegun, what sustainedit was expansionistaggression by otheractors. The Danish, Swedish, and Frenchcrowns all entered, and prolonged, the con ict through deliberate planning, absentany immediate threat, and in order to aggrandize themselves. TheDanish king feared that the forces of thecounterreformation might get hold ofthe north German bishoprics before he did. In the case of Gustaf Adolf, the decisionto intervenein Germany was, perhaps,in uenced by fear thatthe emperor wouldthreaten Swedish domination of the Baltic. Yet this explanation does not accountfor thehuge scale of theSwedish operations in theempire. Safeguarding the Swedishposition in the Baltic hardly necessitated the capture of .Unfortu- nately,we haveno Ž rst-handinformation on what kind of concrete, ultimate goal GustafAdolf was pursuing.There was andis talk about his plans for aProtestant empire.This remains speculative, but, in anycase, the Swedish intervention in the war cannoteasily be described as defensive. Thereis no ambiguity regarding Richelieu’ s intentions,since the meticulous cardinalleft a wealthof written evidence about his thinking. In a 1632memoran- dum,for example,Richelieu spells out what he saw asthe point of direct French interventionin thewar: tomake it possible“ toruinthe Houseof Austriacompletely, ...toproŽt from itsdismemberment, and to make the [French] king the head of all thecatholic princes of Christendom and thus the most powerful in Europe.” This goalwould be achieved jointly with the Swedes, but afterwards theSwedish king wouldbe no match for theFrench king, not least because he “ doesnot have resourcessimilar to those of France.”14

1648:Peace, Propaganda, and the (Non-)issue ofSovereignty

If thewar was notfought to ward off athreatto the independence of otherEuropean actorsposed by theHabsburg dynasty, then the traditional interpretation of the 1648 peacecannot be righteither. Scholars, especially in IR,oftensee the peace as having beenconcerned with the issue of sovereignty, and more generally with the need to reorderthe European system and give it new rules. DavidBoucher, for example,contends that the settlement “ providedthe founda- tionfor, and gave formal recognition to, the modern states system in Europe” ; elsewherehe claims that it “ sanctionedthe formal equality and legitimacy of an

14.Richelieu 1997, 518 –20. TheWestphalian Myth 261 arrayof stateactors, while at the same time postulating the principle of balance as themechanism to preventa preponderanceof power.”15 SeyomBrown speaks of the “Westphalianprinciples” and elaborates that “ evento this day two principles of interstaterelations codiŽ ed in 1648 constitute the normative core of :(1) thegovernment of each country is unequivocally sovereign within its territorialjurisdiction, and (2) countriesshall not interfere in each other’ s domestic affairs.”16 Evansand Newnham’ s Dictionaryof WorldPolitics Žndsthat “ anumber ofimportant principles, which were subsequentlyto form thelegal and political framework ofmoderninterstate relations, were establishedat Westphalia. It explic- itlyrecognized a societyof statesbased on theprinciple of territorialsovereignty.” 17 KalHolsti explains that “ thepeace legitimized the ideas of sovereignty and dynasticautonomy from hierarchicalcontrol. It created a framework thatwould sustainthe political fragmentation of Europe.” 18 Accordingto Torbjo ¨rnKnutsen, “thepowers of thepope and the emperor . ..were drasticallyreduced by theTreaty ofWestphalia.With this Treaty, the concept of theterritorial gained common acceptancein Europe.” 19 HansMorgenthau asserts that certain “ rulesof interna- tionallaw were securelyestablished in 1648” ; morespeciŽ cally, “ theTreaty of Westphalia. ..madethe the cornerstone of the modern state system.”20 Accordingto Frederick Parkinson, the settlement “ speltout in full the termson whichthe new international diplomatic order was tobe based.”21 Michael Sheehanbelieves that the settlement “ formallyrecognized the concept of state sovereignty.”22 HendrikSpruyt declares that “ thePeace of Westphalia. ..formally acknowledgeda systemof sovereignstates.” 23 MarkZacher speaks of “theTreaty ofWestphaliaof 1648which recognized the stateas the supreme or sovereignpower withinits boundaries and put to rest the church’ s transnationalclaims to political authority.”24 Suchquotes could be multiplied almost at will. Yet the actual treaties do not corroborateany of theclaims quoted earlier: the settlement to which they refer isa Žgmentof the imagination. How canit be that for decadesIR hasaccepted a Žctionalaccount of the settlement? In this section I willshow Ž rst thatwhile the Westphalianmyth has little or nothingto dowith the real stakes over which the war was fought,it does re ect the claims of seventeenth-centuryanti-Habsburg propa- ganda.Second, I willtry to explain how this propaganda image of the war madeits wayinto IR andwhy it fellon suchfertile ground there. Finally, the popular image

15.Boucher 1998, 289, 225. 16.Brown 1992, 74. 17.Evans and Newnham 1990,420. 18.Holsti 1991, 39. 19.Knutsen 1992, 71. 20.Morgenthau 1985, 294. 21.Parkinson 1977, 33. 22.Sheehan 1996, 38. 23.Spruyt 1994, 27. 24.Zacher 1992,59. 262 InternationalOrganization ofthe 1648 peace must be corrected by showing what the settlement was really about.

Warand Propaganda Neverbefore or during the war was theemperor in a positionto threaten the long-establishedindependence of actorsoutside the . With the exceptionof theHabsburg dynastic lands, even the and free citiesof theempire itself were notactually governed by theemperor (see thethird section). As mentioned,there is no indication that, even at the height of his military power inthe late , the emperor intended to change that. Ironically,the very fact that Ferdinand enjoyed military preponderance in Ger- manyonly so brie y beforeit dissolvedagain under the impact of acombinationof factors(overcommitment by virtueof theEdict of Restitution,the felt obligation to helpthe Spanish king in Italy, the revolt of the electoral college, the Swedish intervention)greatly helped the anti-Habsburg propaganda. Because the moment of imperialpower did not last, it remained possible to accuse the emperor of allsorts ofthingsthat he had allegedly intended to do, or would still do given the chance. Inan important sense, the war certainlycan be seen as a jostlingfor position amongmajor European actors. In the , the emperor was thenotional secularhead of Christiansociety, conceived of as asinglehierarchy. This notional positionwas amatterof rank,based on historicalconvention, rather than power. In theseventeenth century, despite the religious schisms, the conception of Christen- domas a singlesociety and a singlehierarchy was stillstrong. There was asyetno notionof a systemin which actors would regard each other as equal, as Johannes Burkhardthas rightly insisted (this notion did not really gain ground until the eighteenthcentury). Therefore, to borrow an apt image from Burkhardt,a major powerstruggle among dynastic actors could not but become a jostlingfor thetop of thepyramid. 25 Burkhardtadopts the view that by theseventeenth century the place atthe top of the pyramid was vacant,at least in the sense that there was no agreementon its rightful occupant. 26 Butas the imperial dynasty, the Habsburgs had long been the most obvious contenderfor toprank in Christian society. They had tradition and legitimacy on theirside. Their combined not only were moreextensive than those of anyother dynasty but had been acquired (at least within Europe) very largely throughnonviolent means, especially marriage; contrary to whatis oftensupposed, atthat time conquest was regardedas a dubioustitle to possession. 27 Again, althoughthe Habsburgs had monopolized the imperial dignity, that, too, was owed notto raw powerbut to customand established legal procedures. The imperial title assuch did not bestow great power. But as thesenior royal title in Christendom, it

25.Burkhardt 1998. 26.Ibid., 52. 27.Osiander 1994, 49 –51. TheWestphalian Myth 263 carriedimmense prestige; in the aristocratic political culture of the era, that was morevaluable than we canreadily imagine today. All those assets were basedon inheritedright or ancient custom. The obvious legitimacy of the Habsburgs made challengingtheir primacy, in terms of rank,all the more difŽ cult. Bycontrast,the French and Swedish crowns brought power to thestruggle rather thanlegitimacy. To be sure,King Gustaf Adolf in 1630probably had fewer thana millionsubjects 28—nomore than the rulers of Saxonyor Bavaria.But he alsohad charisma,generous French subsidies, and a serviceableideology as defender of the Protestantfaith. Had the king lived longer, some form ofProtestantcounter-empire mightperhaps have been founded on thisas a moreextensive power base than that providedby hisnative country. France being a Catholicmonarchy, Richelieu had no suchideology at hisdisposal. But his king had more subjects by far thanany other Christianruler, including the emperor and the Spanish king. Moreover, their territorieswere lesscompact. 29 Neitherthe Swedes nor the French had suffered from Habsburgaggression in theirown territories, nor was thisan imminent threat. They could challenge the Habsburgsmilitarily. However, they had to be concerned not just with power but alsowith rank and thus with prestige and legitimacy. Therefore, a militarychallenge necessitatedat least some semblance of ajustcause, an ofŽ cial motive for waging war thatwas notmerely self-seeking— hence the importance of accusing the Habsburgdynasty of abusing its position to oppress everybody else. TheFrench and Swedish crowns both ofŽ cially justiŽ ed their intervention in the Germanwar byclaiming that the princes of the empire were indanger of being subjugatedby the emperor (assisted by theSpanish king), and that any strengthening ofthe Habsburg position would threaten actors outside the empire as well. This claimwas themain argument of the widely circulated war manifestofor Gustaf Adolf.Written by his councilor Johan Adler Salvius, it accused the Habsburgs of havingalways plotted a “universalmonarchy” and the conquest of, at least, all westernEurope. 30 Morethan a decadelater, Salvius was stillrepeating that charge inthe run-up to the peace talks, where he was tobe one of the Swedish plenipotentiaries.In 1643 and 1644 he urgedthe French to preparefor thecongress bysteppingup notonly their military efforts butalso their propaganda efforts. Both theFrench and the Swedish sent diplomatic missives to theGerman princeswarning themonce more of Habsburg designs for “universalmonarchy” and “ absolute ”and suggesting that these would begin with their own enslavement if they failedto support the Franco-Swedish efforts toprotect them. 31 Salvius,who spent much of his life in Germany, knew he would not be taken entirelyseriously. The fulsome protestations of Habsburg villainy and Swedish

28.Schmidt 1998, 49. 29.Twenty million inhabitants is thestandard Ž guregiven for seventeenth-century France. See, for example,Burkhardt 1992, 51. 30.Salvius 1630, English translation in Symcox 1974. 31.Osiander 1994, 79 –80. 264 InternationalOrganization selessness in his relatively accessible 1630 manifesto must not be taken at face value.But Salvius also knew that, however far-fetched the accusation, in terms of publicrelations a smallŽ gleafwas inŽnitely better than none. Moreover, far- fetchedor not, the charge against the Habsburgs really hinged on unveriŽ able Habsburgintentions and was thusconveniently irrefutable. By contrast, the French delegationrepeatedly expressed surprise at how little even Protestant German princesembraced the notion of a Habsburgmenace, which the French routinely conjuredup in the initial phase of thecongress— but later dropped. 32

TheWestphalian Myth in IR Whileits original addressees were thusrelatively impervious to the anti-Habsburg propaganda,posterity has proved more amenable. Imbued with the ideal of the -stateand, indeed, harboring more or less explicit nationalistic (as wellas confessional)preconceptions, nineteenth- and twentieth-century historians readily espousedthe view that somehow the Danes, Dutch, French, and Swedes were really “defending”themselves while also sel essly helping others to ward off oppression. TheHabsburg dynasty, on theother hand, found few sympathizers,because it could notbe harnessed for anynational cause. German historians tended to point to its “excessive”ambition to explainits failure to createa Germannation-state. Had the Habsburgsnot pursued such far- ung European, even global interests, this argument goes,they could have concentrated successfully on their“ German”role. In this way, whateverthe national perspective from whichthey wrote, historians could agree to castthe Habsburg dynasty as the “ villain”in line with seventeenth-century propa- ganda.Unaware ofits rootsin nineteenth-century historiography, but still very much underthe normative in uence of the concept of the nation-state underlying that literature,twentieth-century IR scholarshave been among the most eager continu- atorsof theold propaganda image of the war. Thenotion that the peace enshrined anew,anti-hegemonial order goes back to this image. Isuspectthat many of the misleading statements about 1648 in IR literature derivedirectly or indirectlyfrom anoft-quoted1948 article by LeoGross. 33 In line withthe many (predominantly legal) older scholars cited in that article, Gross regardedthe peace as a majorturning point. For himit was “themajestic portal whichleads from theold into the new world.” 34 Butit looksas ifhavingdecided to checkthe treaties— which he quotes—for supportof thisview, he was disappointed toŽ ndlittle that was serviceable.Probably for thisreason he essentiallydismissed akeybit of evidence. The “ actualterms of the settlement,” Gross writes,

32.Ibid., for example, 37– 38. 33.Originally published in the AmericanJournal of International Law ,itwas later includedin a reader editedby RichardFalk and Wolfram Hanrieder (1968),and again in a posthumouscollection of essays byGross (1993).That volume opens with the 1948 article, whichthe editor, Alfred P. Rubin,in hisintroduction describes as “timeless”and “ seminal.”Rubin also comments thatGross “popularizedthe phraseand the notion of a‘Westphalianconstitution’ for the international order” (Gross 1993,x). 34.Gross 1948,28. TheWestphalian Myth 265

wouldhardly sufŽ ce to account for theoutstanding place attributed to it in the evolutionof internationalrelations [!]. Inorder to Ž nda moreadequate expla- nationit would seem appropriate to search not so much in the text of the trea- tiesthemselves as in their implications, in the broad conceptions on which theyrest and the developments to which they provided impetus. 35 Gross goeson to express or at least adumbrate almost all the elements of the Westphalianmyth that form thecommon pool from whichscholars routinely draw: howthe war was astrugglebetween hierarchical, “ universalistic”aspirations and the aspirationsof therising individual states; how the peace was reallyabout sovereign equality;how it was acharterfor allEurope; how, implicitly at least,it was based ontheprinciple of thebalance of power;how it effectively sidelined the Pope; and soon. The old-fashioned learned with its ample references to scholars now largelyforgotten has probably made the piece appear more historically knowledge- ableand less speculative than it really is. Gross afterall was anexpert on internationallaw, not history (I knowof no other work of his that deals with a pre-twentieth-centurytopic). As thequotes at the beginning of this section show, muchsubsequent IR literaturethen introduced a furthertwist by assumingthat the varioustenets that according to Gross thetreaties implied were actuallylaid down in them. Iamaware ofonlyone outspoken IR critic of thestandard view of thesettlement, andeven he seems to have gone back on his original, more resolute stance on the issue.In an essaypublished some years ago, Stephen Krasner dismissedthe alleged linkbetween 1648 and the creation of the sovereign territorial state, asserting unambiguouslythat “ theconventional view that the of 1648 marksa turningpoint in historyis wrong”and that the peace “ was nota clearbreak withthe past.” 36 Butin his most recent book, Krasner writesthat “ thePeace of Westphaliawas abreakpoint with the past.” He concedesthat even though this breakpoint was “notthe one understood by moststudents of international relations andinternational law,” the settlement “ didmark the transition from Christendomto reasonof state and balance of power as the basic cognitive conceptualization informingthe actual behavior of European rulers.” 37 Thislooks like a nodto conventionalwisdom, indeed, like a typicalinstance of attributingto “ Westphalia” conceptsof IRtheory whose factual link with the settlement is far from clear.While acknowledgingthat this expression is incorrect historically, Krasner alsoemploys theterm “ Westphaliansovereignty” throughout the book. Giventhat IR scholars,much more so than recent historians, continue to putsuch emphasison 1648 as a turningpoint, why have there not been more efforts at checkingthe standard account of thesettlement against, at least,the actual treaties? Onereason, perhaps, is that they are difŽ cult to understand.Perusal of the treaties, Žlledas they are with endless technical detail on constitutionaland other matters of

35.Ibid., 26. 36.Krasner 1993,235. 37.Krasner 1999,82. 266 InternationalOrganization theHoly Roman Empire, must leave nonspecialists bewildered and thus all the more inclinedto accept the available standard interpretation. Yet on a deeperlevel, the conventionalview may serve an important function. A typicalfounding myth, it offers aneataccount of howthe “ classical”European system, the prototype of the presentinternational system, came about. Conveniently and comprehensively, it explainsthe origin of what are considered the main characteristics of that system, suchas territoriality, sovereignty, equality, and nonintervention. It Ž tsperfectlywith theaccepted view of whatinternational relations is about, or atleasthas “ tradition- ally”been about: relations of aspeciŽc kind(with the problem of war occupyinga centralposition) among actors of a speciŽc kind(territorial, sovereign, legally equal).While IR authorsare divided on theapplicability of thisconventional model tocurrent phenomena, very rarely do they question its applicability to the past.

ThePeace Treaties and the Problem of Sovereignty: SomeClariŽ cations Ihaveargued that the standard account of thepeace ultimately re ects not its actual contentbut wartime anti-Habsburg propaganda. The quotations from IRscholars adducedearlier all create the impression that the settlement laid down what the propagandaimage of the war wouldlead one to expect: a conŽrmation of the autonomy,or sovereignty,of thevarious European actors, just saved from attempted oppression.But since, rather than propaganda, the treaties deal with practicalities, thesettlement contains nothing of thesort. It is silent on theissue of sovereignty,or, lesstechnically, independence, of Europeanactors. It does not refer toanycorollary ofsovereigntyeither, such as nonintervention.It does not deal with the prerogatives oftheemperor, nor does it mentionthe Pope. There is nothingin it about the balance of power. Moreover,while delegates from severalcountries attended the congress, the treatiesthat it producedwere nota pan-Europeancharter. The Peace of Westphalia properwas anagreement between only three parties. It consists of two treaties signedon 24 1648, one— the Treaty of Mu ¨nster( InstrumentumPacis Monasteriense orIPM)— between the Holy Roman Empire and the king of France, andthe other— the Treaty of Osnabru ¨ck( InstrumentumPacis Osnabrugense or IPO)—between the Holy Roman Empire and the queen of Sweden.A largeportion ofboth treaties is identical and about internal affairs ofthe Holy Roman Empire. Thisis the main focus of the settlement and will be discussed in the third section. Apartfrom this,the treaties are concerned with certain territories awarded to France andSweden, respectively. France and Sweden were alsomade guarantors of the settlement,which theoretically authorized them to intervene in the empire in certain circumstances,but this provision never gained practical relevance. 38

38.I havegiven a detailedanalysis of thepeace talksand the treaties elsewhere (Osiander1994, chap. 2). TheWestphalian Myth 267

Likeall other actors outside the empire, the French and the Swedes as the two non-Germansignatories to the treaties took their own complete independence for granted.So did everybody else. No one, before or during the war, hadquestioned thatindependence, let alone threatened it militarily.Why should they have wanted itconŽ rmed? The treaties conŽ rm neithertheir “ sovereignty”nor anybody else’ s; leastof alldo they contain anything about sovereignty as aprinciple.It is because ofthe arbitrary habit of regarding 1648 as a milestonein the evolution of sovereigntythat this concept is projected into the settlement, which becomes possibleonly if the historical evidence is either ignored or forced into a straight- jacket.The apparently ineradicable notion (repeated even by manyrecent historians ofthewar) thatthe Peaceof Westphaliasanctioned the “ sovereignty”of andthe and their independence from theempire demonstrates this. In thecase of the Swiss itis based on a willful(and sometimes uninformed) interpretationof the relevant clause in the treaties, giving it a meaningthat its draftersdid not intend. And as totheDutch the treaties do noteven deal with them. Thecomplete autonomy of Switzerlandvis-a `-visthe empire was uncontroversial inpractice, and the Swiss were reluctantto have anything to do with the peace congress.If theyeventually allowed themselves to be represented there by the burgomasterof Basel,it was becausethis had only joined the Swiss confeder- ationafter the other cantons had had their autonomy recognized in atreatyof 1499. Thesupreme courts of the empire (more particularly,the Imperial Cameral Tribu- nal)did not consider Basel to be exemptfrom theirjurisdiction and allowed lawsuits againstBasel and its citizens,a situationthat had caused continual irritation. For this reasonBasel insisted on having the immunity of the entire recon- Žrmedin such a waythat it would cover Basel, too. The request was granted,and aclauseto that effect included in thetreaties. 39 Thisclause, which explicitly names Baselas its initiator and beneŽ ciary, restates the immunity (exemptio) of the Swiss cantonsfrom thejurisdiction of the empire and their complete autonomy (plena libertas). Bothterms were traditional,and neither signiŽ es, or even presupposes, sover- eigntyin the modern sense. 40 Arecentarticle by FranzEgger repeats the traditional assertionthat Swiss “sovereignty”was recognizedin 1648.Paradoxically, the same articlefurnishes strong evidence that the Swiss themselvessaw nodiscontinuitybut stillregarded themselves as associated with the empire. In conclusion, Egger concedeswith evident puzzlement that most Swiss “hadnot realised that Switzer- landhad become a sovereignstate independent of the empire.” 41 Butthe explanation for thisis simplythat indeed it had not, at leastnot in the sense that its status had changedin 1648. For severalmore decades, at least two Swiss cantonsretained referencesto the Holy Roman Empire in their oath of citizenship. 42

39.IPM sec. 61;IPO art.6. 40.For an analysis of thewording, see Mu¨ller 1946. 41.Egger 1998, 431. 42.Stadler 1998, 391. 268 InternationalOrganization

Concerningthe Dutch, their autonomy from theempire was likewiseunques- tioned.At thepeace congress, the Dutch did not raise the issue of theirrelationship withthe empire. IPM orIPO donot deal with them, and they did not sign either of thosedocuments. What interested the Dutch was, ofcourse,the deŽ nitive recogni- tionof theirindependence by Spain. This was grantedin the Treaty of Mu¨nsterof January1648, which is not part of the Peace of Westphalia (of October1648) proper.In the Spanish-Dutch treaty, the emperor and the empire are only mentioned once.Article 53 is concerned with “ thecontinuation and observation of the neutrality,friendship, and good neighbourhood” between the emperor and the empire,on the one hand, and the Dutch, on the other, which the Spanish king undertakesto procure from theemperor and the empire. The Dutch for theirpart pledgeit already in Article 53 itself. RobertFeenstra has discussed this matter in a thorough1952 article that should havelaid to restthe notion that Dutch independence from theempire was obtained in1648. At therequest of the Spanish king, the emperor produced an appropriate declarationin July 1648. The Reichstag only looked into the matter in 1654,when itvoted a preliminaryresolution according to which it was willingto provide the desireddeclaration in exchange for asimilar,reciprocal one from theDutch themselves.This resolution was communicatedto theDutchStates General, but they didnot pursue the matter further. 43 Thewaythe relationship between the empireand theDutch was discussedhere shows that all the parties involved already regarded theDutch republic as a distinctentity.

Summary Inthis section I haveshown that the prevalence of the Westphalian myth in IRisthe resultof nineteenth- and twentieth-century historians adopting a certainstandard accountof 1648,in uenced by ideas that can be tracedto anti-Habsburg propaganda oftheThirty Years’ War. InIR, this account has been further distorted through the probableintermediation of Leo Gross. Thoughhe was nothimself a historical expert,his commentary on the settlement nevertheless gained near-canonical ac- ceptance. Evenhistorians have been slow to distance themselves from cherishedinterpre- tivetradition. The effect of thistradition may be seenin the frequent claims about Dutchand Swiss “independencefrom theempire” that the 1648peace is erroneously thoughtto have brought about and which cannot be explainedotherwise. In fact, in historicalworks this old, sovereignty-centered interpretive overlay is now mostly latentrather than the object of explicitpropositions as isthecase in IR.I donotthink thatstatements of thekind quoted at the beginning of thesection would pass muster withany historians writing now. However, the lack of aclear,explicit break with the oldtype of accounthas made it easierfor IRto clingto itsversion of it,extreme and over-simpliŽed as it is even in comparison to many older historical writings.

43.Feenstra 1952,196 – 205. TheWestphalian Myth 269

The HolyRoman Empire froman IRperspective

While,originally, the peacemakers entertained visions of a settlementending all conict in Christendom, four years of negotiations brought “ only”the Peace of Mu¨nsterbetween Spain and the Dutch Republic and the Peace of Westphaliafor the empire;the war betweenSpain and France continued until 1659. It is totheempire, notto the European system at large, that the Peace of Westphaliais devoted. Concerningthe effect of the peace on the emperor and the empire, IR scholars oncemore offer far-reachingand generally concordant claims. “ Westphalia thwartedthe hegemonic aspirations of the emperor by conceding the right of over threehundred political entities to enterinto making alliances and conduct their own foreignaffairs withoutinterference.” 44 “TheTreaty of Westphaliagave virtually all thesmall states in theheart of Europe sovereignty, thus formally rendering the Holy RomanEmperor politically impotent. . ..Thepowers of ...theemperor . ..were drasticallyreduced by theTreaty of Westphalia.”45 “Althoughtechnically still part oftheempire (which would last in nameuntil 1806), these [German] principalities gainedall the trappings of sovereignstatehood. The Peace of Westphalia formally acknowledgedtheir status and granted them all the rights of state actors. . ..The Peaceof Westphaliamade the territorial lords of the basically defunct Holy Roman Empirefull participants in the international system.” 46 “Byending Habsburg predominance[the 1648 settlement] gave independence to thestates of Germany.”47 Onceagain such statements are hardly tenable. And once again, the habit of misunderstandingand largely ignoring the Holy Roman Empire in the last century anda halfof itsexistence goes back to the nation-state-oriented historiography of thenineteenth century. This habit was basedon the notion that the uniŽ ed, centralized,sovereign nation-state was thedesirable endpoint of history, and that, regrettably,Germany had failed to reach this stage in theearly modern period when othercountries Ž rst didso. Frequently, this failure was blamedin largemeasure on thePeace of Westphalia. As lateas 1960, Fritz Dickmann, in what is still the standardstudy of the peace congress, termed the settlement “ anationaldisaster” for Germany.48 Theconceptual and normative Ž xationon the uniŽ ed sovereign nation-state has for alongtime made it almost impossible to understand the empire on its own terms. Thetendency to treatthe separate territories of theempire as, in practice, sovereign was nearirresistible because it seemedimpossible to imaginewhat else they could havebeen. If theywere sovereign,then surely the empire was essentiallymeaning- less.At thesame time, those territories were nottotally like other state actors. In someill-understood way they still seemed to have residual obligations toward the

44.Boucher 1998, 224 – 25. 45.Knutsen 1992, 71. 46.Spruyt 1994, 29, 171. 47.Wight 1986, 31. 48.Dickmann 1960, 494. 270 InternationalOrganization empire,at least in a formalsense, and they were mostlysmall. As aconsequence, theywere treatedas a slightbut unimportant aberration that did not challenge the viewof themodern European system as basedon thesovereign state as its unit. Only relativelyrecently has the empire been “ rediscovered”by historians. Inthis section I showhow very different the empire looks if one breaks free from thefetters created by regardingsovereignty as thesole possible master concept for interpretingrelations among autonomous actors. I describethe general structure of theempire and then highlight how its component units were subjectnot to any governmentalauthority but to external juridical control. Finally, I highlightthe structuralrelationship between the empire and the European system at large and discusshow this analysis contributes to a betterunderstanding of the European system,or indeedany international system.

ACooperativeLegal Order of Non-Sovereign Autonomous Entities: TheConcept of Landeshoheit ThePeace of Westphaliadid not establish the “ Westphaliansystem” based on the sovereignstate. Instead, it conŽ rmed and perfected something else: a systemof mutualrelations among autonomous political units that was preciselynot based on theconcept of sovereignty. Understanding this alternative model requires an analysisof theconstitution of theempire. The mutual relations of theestates of the empire (reichssta¨nde )—thoseprinces and cities of the empire that had no other hierarchicalsuperior than the emperor and were entitledto vote in theimperial diet, theReichstag— were basedon constitutionallaw. “ peculiarlyimportant sense, theempire really was itsconstitution.” 49 Putsimply, the 1648 peace was theoutcome of thebreakdown of the Augsburg religiouspeace of 1555. Religious rights were theone area where the 1648 settlementsubstantially added to theconstitution of theempire. It also clariŽ ed other aspectsof the constitution but there abstained from innovating.It did not seek to alterthe way the estates of the empire, on the one hand, and the emperor, on the other,were balancedagainst each other. The prerogatives of the emperor are not dealtwith in thepeace. Formally, they remained the same in 1648 as they had been in 1618. Comparedto thereligious-political deadlock that had paralyzed the empire during thedecade or twopreceding the war, itemerged from thepeace congress unchanged inits conception, but in a betterworking condition. 50 Theway the Peace of Westphaliais discussedin muchof theliterature tends to imply that the empire was muchmore divided after 1648 than before 1618, and that the role of theemperor was

49.Gagliardo 1980, 4 (emphasis inoriginal). For a goodoverview of the constitution, see vonAretin 1993,chap. 1; Buschmann 1984; and Gagliardo 1980, chap. 2. Theanalysis of theconstitution in Krasner 1993is notentirely reliable. Eighteenth-century works on the constitutional law ofthe empire are still invaluable;see, forexample, Moser 1745; or, in English, Pu ¨tter 1790. 50.This is pointed out by GeorgSchmidt (1998, 7, 109). TheWestphalian Myth 271 muchreduced by thepeace.But even before 1618 the empire was nota unitarystate, andthe constitution limited the emperor’ s role.Conversely, the post-1648 empire was notthe congeries of basically sovereign territories often depicted by scholars, andrecent analyses of the emperor’ s positionafter 1648 concur that it remained strongerthan earlier literature suggests. 51 Theemperor exercised direct jurisdiction only over his own dynastic lands, not overthe subjects of otherestates of theempire. Yet he retaineda pivotalrole in the politicsof the empire even after 1648. He exercisedconsiderable in uence over the Reichstag.Motions he proposed carried particular weight, and the Habsburgs disposedof a considerablenumber of Reichstag votes. Conversely, the emperor couldveto any decision of theReichstag.He alsoretained certain other prerogatives, suchas supreme command of the joint army that the estates of the empire would raiseif the Reichstag decided it. TheReichstag, the assembly of theestates (or theirdelegates), was competentto dealwith any matters of concern to the empire or to individual estates. Whereas previouslyit had been called by the emperor at irregular intervals, from 1663 onwardit was apermanentbody established at Regensburg. It was composedof threecouncils. The electoral college comprised those princes who were entitledto electthe emperor. After 1648there were eight(and for somedecades nine) of them. Thecollege of princescomprised the other princes. There were onehundred votes inthis college. However, major princes had several votes because they ruled several legallydistinct territories. No less than about thirty votes were inthe hands of membersof theelectoral college. Conversely, about a hundredminor lords did not haveseparate votes but shared in atotalof sixcollective votes, while the so-called imperialknights (members ofthelanded gentry who enjoyed certain individual and collectiveprivileges once granted by the emperor) had no representation in the Reichstag.The usual impressive Ž guresthat put the number of autonomousentities inthe empire anywhere between 300 and 2,500 fail to take account of these distinctions:the empire was notcomposed of “likeunits” in the Waltzian sense. 52 Finally,the college of citiescomprised the Ž fty-oneimperial free citiesand an equal numberof votes. Motionswere passedif twocouncils approved them. In practice, the electoral and princelydelegates always agreed with each other rather than leave a decisionto the cities,but that does not mean that the cities had no political weight. Particularly activein theeconomic Ž eld, 53 thediet served as aforumfor discussionbut did also passbinding legislation for theempire as a whole.It could sanction the behavior of individualestates, if necessary by coercive means, but even its mere censurewas somethingthat princes or citiespreferred to avoid.The image of acumbersomeand

51.See Buschmann1993; Haug-Moritz 1992, for example, 137, 251; and Press 1990. 52.Waltz 1979,93. 53.Blaich 1970. 272 InternationalOrganization politicallymarginal institution traditionally associated with it has recently been vigorouslyattacked by Johannes Burkhardt. 54 Theempire had no centralgovernment (either before or after1648): it was nota state,but a regime,in IRterminology. The estates of theempire, that is, its princes andfree cities,did the actual governing within their territories. This right, conŽ rmed bythe Peace of Westphalia, 55 was known as landeshoheit ,literally“ territorial jurisdiction.”Scholars writing in English sometimes render it as “territorialsover- eignty.”56 Thisis misleading because what makes landeshoheit interestingfrom an IRpointof viewis precisely that which makes it different from sovereignty. JohannJacob Moser, an eighteenth-century authority on German constitutional law,deŽ nes the landeshoheit oftheestates of the empire as

arightpertaining to them and empowering them in their lands and territories tocommand, to forbid, to decree, to undertake, or toomit everything that . .. pertainsto any ruler, inasmuch as their hands are not tied by the laws and tra- ditionsof theempire, the treaties with their local estates and subjects, the lat- ter’s ancientand well-established freedoms and traditions, and the like. 57

As thisdeŽ nition shows, the autonomy of the estates was limitedin two ways: externallythrough the laws of theempire and internally through the constitutional arrangementswithin the various territories. The estates were notfree toshake off eitherkind of restraint unilaterally. Changing the laws of the empire required the consentof the majority of at least two of the three Reichstag councils and of the emperor.Likewise, constitutional changes within the various territories of the empirecould not be imposed by the government without the consent of existing representativebodies in those territories. Thelimitations imposed on the estates of the empire by the laws of the empire maybe illustrated by examples from thePeace of Westphalia. It is often asserted, for instance,that the Peaceof Westphaliawas basedon theprinciple cuiusregio eius religio,meaningthat a rulercould determine the of hisor hersubjects. On thecontrary: the cuius regio-systemestablished by the 1555 Peace of Augsburg proveddestabilizing and ultimately unworkable, which is whyit was abandonedat thePeace of Westphalia.Regarding ofŽ cial religion, the 1648 treaties laid down that eachpart of the empire would henceforth be frozen according to its situation (Catholic,Protestant, or mixed)on 1 January1624. 58 Inother words, the Peace of Westphaliadeprived the princes and free citiesof the empire of the power to determinethe religious afŽ liation of their lands. It also guaranteed the private exerciseof any recognized denomination (Catholic, Lutheran, Calvinist) and man- dateda certainamount of legalprotection for theadherents of minorityfaiths. This

54.Burkhardt 1999. 55.IPM sec. 62,65; IPO art.8.1, 8.4. 56.For example, John Gagliardo. 57.Moser 1745, 492– 93. 58.IPM sec. 47;IPO art.5.1 ff. TheWestphalian Myth 273 wholebody of rules became part of the laws of the empire, which meant that individualprinces and cities could not abrogate it. Anotherelement of thePeace of Westphaliathat is often interpreted wrongly as makingthe estates of theempire “ sovereign”is theright to concludealliances with foreignactors. The estates had always had this right. It is often claimed that the 1635 Peaceof Prague,proposed by the emperor, outlawed foreign alliances, but this is not true.59 Thefrequent assertion that this was anewright, “ won”in 1648, is thus untenable.60 Nor didthis right amount to sovereignty. The passage conŽ rming it in thetreaties stipulates that it must not be exercised to the detriment of theemperor ortheempire and its public peace or the1648 settlement, a formulationin line with landeshoheit ,butnot with sovereignty. 61 Evenafter 1648, other European actors did notrecognize the estates of the empire as sovereign. 62

ASystemof Juridical Control

Theempire possessed two supreme courts who heard complaints regarding viola- tionsof thelaws of theempire and of theinternal constitutional arrangements of its componententities. The role of thesecourts is worth examining in more detail. TheImperial Cameral Tribunal ( )was atWetzlar. The emperorappointed some of itsjudges, but most were nominatedby theestates of the empireaccording to a complicatedkey. The judges, some noblemen and some commoners,had to possesshigh legal qualiŽ cations; the court rejected candidates it deemedunŽ t. The Peace of Westphalia provided that half the judges must be Protestant;it alsocalled for atotalof Žftyjudges; however, the estatesof theempire, whoŽ nancedthe court through a specialtax, proved unwilling to payfor somany. 63 After 1648there were abouttwenty judges, divided into two so-called senates that heardcases independently; in 1782 their number was raisedto twenty-eight, with threesenates. TheImperial ( Reichshofrat )was atVienna. It had eighteen full members,complemented, in the eighteenth century, by a dozenor more unpaid supernumeraries.Members were appointed,and paid, by the emperor alone. Only sixof thefull councilors were Protestant,but in religiousmatters they could not be overruledby the majority. The council was dividedinto the Lords’ Bench (Her- renbank), whosemembers were recruitedfrom thenobility, and the Knights’ and Scholars’Bench ( Ritter-und Gelehrtenbank, the“ knights”being distinguished by a modesttitle comparable to a Britishknighthood), but it alwaysdecided as one body.

59.Repgen 1998, 360. 60.Bo ¨ckenfo¨rde1969. 61.IPM sec. 63;IPO art.8.2. 62.Duchhardt 1990, 8, 11,19. 63.IPM sec. 47;IPO art.5.53. 274 InternationalOrganization

LegalqualiŽ cations were requiredof thecouncilors regardless of whichbench they saton, and their votes had the same weight. 64 For mostpractical purposes, litigants were free toseize either court as theysaw Žt(itwas notpossible to appeal from oneto the other). Both acted as appealscourts incivil proceedings against decisions by the highest courts in the individual territoriesof theempire. Over thecenturies many estates of theempire obtained a so-called privilegiumde nonappellando, whichrestricted the right of appealto the twosupreme courts; sometimes the possibility of appeal was excludedaltogether. Morefrequent was theso-called privilegiumlimitatum ,Žxinga variableminimum cashvalue for casesthat could be appealed to thesupreme courts. This limitation of access(granted, however, only to territoriesthat themselves had appeals courts) was vitalto prevent the supreme courts from drowningin their massive case loads. Privilegiade nonappellando hadno validity if thelitigants claimed, credibly in the eyesof the judges, that they had been denied due process. In this fashion, any litigationcould be brought before the supreme courts, including criminal proceed- ings,which they were nototherwise competent to deal with. Apart from appeals, bothcourts also dealt with complaints against the estates of the empire— that is, quarrelsamong the estates themselves as well as complaints by subjectsagainst their ruler.One of the most interesting aspects of the legal order of the empire is that anyonewithin it could take their ruler to court (only the emperor himself was immune);here, too, privilegiade non appellando hadno validity. Manysuch lawsuits were broughtagainst rulers by thelocal estates (landsta¨nde, thatis, parliamentary assemblies or permanent committees of notablesthat operated inmost territories of theempire). They could and frequently did turn to the supreme courts,usually the Aulic Council, if they held that their prerogatives had been infringed.Often the con ict concerned taxation, which in most territories was subjectto the approval of the local estates. Examples of this are the well-known constitutionalquarrels in Mecklenburgand Wu ¨rttemberg. 65 Bothquarrels continued intermittentlyover several decades, re ecting long-drawn-out power struggles betweenthe local dynasty and its estates and in which the Aulic Council played a keyrole. In both cases the con ict at onepoint led to thedeposition of theruler by theemperor. Following a complaintby the Wu ¨rttembergestates before the Aulic Council,the emperor deposed the Wu ¨rttembergregent Frederick Charles in 1693. Similarly,a complaintbefore the Aulic Council by the Mecklenburg estates eventuallycaused the deposition by the emperor of Duke Charles Leopold in 1728.66 Bothquarrels eventually resulted in victories of the estates over their respectiveprinces (Mecklenburg in 1755, Wu ¨rttembergin 1764/ 70).

64.On the two courts see, forexample, Diestelkamp 1990and 1997; von Gschliesser 1942;Hertz 1961;Hughes 1988; and Smend 1911. 65.On Mecklenburg, see Hughes1988; and Jahns 2000. On Wu ¨rttemberg,see Carsten 1959,chap. 1; Haug-Moritz1992; Liebel-Weckowicz 1984; and Wilson 1995. 66.Deposition of a ruler,normally following a decisioneither by one of the two supreme courtsor bythe Reichstag, occurred on a numberof occasions after 1648;see Trossbach1986, whose list, however,is notexhaustive. TheWestphalian Myth 275

Thispattern was typicaland is likewisefound, for example,in eighteenth-century Bavaria:by twicebringing complaints before the Aulic Council (in 1760 and 1765) whilethreatening to do so on other occasions, the local estates there also success- fullydefended their traditional control over the taxation system against recurrent attemptsby the prince to disempowerthem. 67 Thesystem was nota one-waystreet; for example,in early eighteenth-century East it was theruler who repeatedly suedhis estates before the Aulic Council. 68 Butmostly complaints were brought against,not by, a ruler. Thatboth courts were sympatheticto “theslightest complaints brought by those recalcitrantvassals and subjects,” as the Vienna envoy of theduke of Mecklenburg- Schwerinput it in 1714,was awidespreadand apparently justiŽ ed opinion. 69 Both courtsgave priority to complaints brought by subjects against their rulers. 70 Such complaintswere alsobrought by privateindividuals. Bruno Heusinger gives details ofsome cases from the1780s in which the Cameral Tribunal found in favor of lower-classsubjects against their prince. 71 “Inboth courts, a distinctreceptivity to theurgency of cases involving immediate human misery can be conŽ rmed.” 72 Lowsocial status or limitedfunds were noautomaticobstacle to litigation before thesupreme courts, which were requiredto assign needy parties members of their ownstaff ascounsel free ofcharge. Peasant complaints were common.There are numerouseighteenth-century instances of peasant delegations from sometimes distantparts of the empire seeking personal audiences with the emperor to voice theircomplaints (even though this conferred no advantage over addressing the courtsdirectly). The emperor on suchoccasions gave the formulaic reply, “ youshall havejustice [Euchwird Recht werden]” andturned the matter over to the Aulic Council.73 Peasantsalso seized the Cameral Tribunal. A memberof its staff observedin 1767 that “ thesekinds of lawsuits [that is, complaints against rulers] haveunfortunately become so frequent of late that every day whole  ocksof peasantsmay be seen” on their way to the court. 74 Inthe eighteenth century, the Cameral Tribunal received 220 to 250 new cases each year.75 Inthe 1790s it producedin excessof onehundred decisions annually. 76 Muchhas been written about an allegedly huge backlog of cases and inordinate delaysin the workings of the court. However, those eighteenth-century cases of whichI amaware were processedrelatively quickly and certainly no more slowly thanone would expect from asimilarcourt today. The discrepancy between the

67.Von Aretin 1997b, 160 – 61. 68.Haug-Moritz 1992, 28. 69.Quoted in Vierhaus 1976, 48. 70.Von Aretin 1993, 143. 71.Heusinger 1972, 9 –10. 72.Gagliardo 1980, 31– 32. 73.See Diestelkamp 1997,135– 36; Press 1982,237– 38 and1990, 146; and Trossbach 1990. 74.Quoted in Trossbach 1990, 142. Peasants habituallysent delegations rather thanindividuals to represent them. 75.Von Aretin 1993, 148. 76.Von Aretin 1997a, 151. 276 InternationalOrganization numberof new cases and the number of Žnaldecisions does have something to do withoverload, but the matter is morecomplicated than may appear at Žrst sight.The judgessought to avoidformal decisions and encouraged parties to settleout of court. Often,too, the mere factof formal proceedings having been initiated at Wetzlar broughtabout a stand-offor even compromise between parties. The court therefore deferrednon-urgent cases unless or until plaintiffs conŽ rmed their interest in continuingthe proceedings. Notoriously, such “ reminders”were oftenaccompanied byvoluntary cash payments to the underfunded court. But this does not appear to haveaffected the objectivity of the judges, nor, apparently, was itexpected to; nor were suchpayments a preconditionfor casesbeing prioritized. Asimilarsystem operated at the Aulic Council, which in the eighteenth century was morepopular with litigants. In 1767 it handled 2,088 cases (without necessarily bringingthem to a conclusion),in 1779 the Ž gurewas 3,388,and in the following Žveyearsit averaged around 2,800. 77 If necessarythe council could issue a formal, bindingpronouncement in a matterof weeks(as inthe Wu ¨rttembergaffair in1764). TheAulic Council was barredfrom acceptingcases originating from withinthe Habsburglands, so its docket came mostly from otherparts of the empire. As an exception,cases from withinthe Habsburg territories were broughtby Jews, who beingunder the special protection of theemperor could put all their lawsuits before thecouncil (that is, not just appeals or complaints against estates of the empire). Jewishbusinessmen often used the council to sue princes of the empire for nonpaymentof debts. 78 TheAulic Council also exercised a certain droitde regard overthe estates of the empirein nonjudicialmatters. In particular it was supposedto watchtheir Ž nances. Since,in mostterritories, taxes had to beapprovedby the local estates, who tended tobe stingy, many princes were constantlylooking for alternativesources of revenue.To preventthem (or free cities)from contractingtoo many debts, they were theoreticallyobliged to have all major loans to them authorized by the council, althoughthis requirement was oftenevaded. If theydefaulted, the council appointed acommissionthat actually took over the government of their territories until all creditorswere paidoff; during that time, princes received a pensionand were temporarilysuspended. This situation was rare butdid happen (for example,to the landgraveof -Darmstadtin the mid-eighteenth century). 79 Theprinces of the empireprobably tolerated this system because it enhanced their often shaky creditworthiness. Inthe eighteenth century, the prestige of the emperor and of the empire as an institutionalframework restedin no smallmeasure on thelegal protection it offered tocorporate bodies and individual citizens within its component territories. Johann StephanPu ¨tter,an eighteenth-century authority on Germanconstitutional law, wrote in1777 that “ theconstitution of the indeed shows itself in a very

77.Von Gschliesser 1942,38 – 39. 78.Ibid., 35. 79.Von Aretin 1993, 87– 88, 109. TheWestphalian Myth 277 favourablelight, since every estate of theempire is free todogoodin his lands, but canbe prevented from doingevil by a higherpower.” 80 AugustLudwig von Schlo¨zer,a professorialcolleague of Pu ¨tterat Go ¨ttingenand a prominentenlight- enmentŽ gure,in 1793spoke of “happyGermany, the only country where, without prejudiceto their dignity, one can prevail against one’ s rulersthrough legal action beforean external tribunal, rather than before their own one.” 81 Theemperor, as theofŽ cial guarantor of thesystem and in whosename decisions ofboth courts were handeddown, was for allpractical purposes forced into an impartialposition. He hadan interest in supportingsubjects against their princes lest thelatter become too powerful, but he couldnot exploit this role to increasehis own powerat the princes’ expense because he could not be emperor against their opposition.But impartial application of thelaw also served his interests because his functionas guardian of thelaw enhanced his prestige and thus his in uence. 82

TheHoly Roman Empire as Part of the European System As ahistoricalphenomenon the empire proves that relations among autonomous actorsdo not require those actors to be completely “ sovereign”and that the alternativeto “sovereignty”is notnecessarily “ empire”(in the ordinary sense of the word).I alsosuggest that the post-1648 Holy Roman Empire, on theone hand, and theseventeenth and eighteenth-century European system surrounding it, on the other,do not represent mutually exclusive paradigms. Instead, they are part of a spectrum. IRscholarshave tended to assume that sovereignty— or, more generally, actor- hood—inthe European system originally presupposed the ability of actorsto defend themselvesagainst each other, making the concept little more than a labelfor a certainlevel of military capability. According to Charles Tilly, “ untilrecently only thosestates survived that held their own in war withother states.” 83 Buildingon this kindof “ Darwinian”view (albeit acknowledging elements of international“ society” evenamong early modern European states), Robert Jackson has suggested that only later,in thetwentieth century, did sovereignty become a purelynormative concept, capablemore or lessin itsown right of maintaining the independence even of states unableto defend themselves militarily. Jackson has called “ quasi-states”actors whosesovereignty is “ merely”ascriptive (such as many former European colonies).84 Thispower-political view of the classical European system has been criticized. JohnGerard Ruggiehas pointed out that the transition from theMiddle Ages to the

80.Quoted in Link 1998, 7. 81.Quoted in Heusinger 1972, 19 –20. 82.Gabriele Haug-Moritz,in her magniŽ cent studyof the eighteenth-century empire at work,makes arelated point.Haug-Moritz 1992, 30 – 31. 83.Tilly 1990, 63. 84.Jackson 1990. 278 InternationalOrganization earlymodern period allowed many weak actors (he speciŽ cally mentions the “ more thantwo hundred German ‘ states’” )tosubsist while more powerful actors disap- peared.According to Ruggie,the real issue was nothow much power actors had, but howmuch legitimacy. 85 HendrikSpruyt, arguing against the “ war making”theory oftheevolution of thestatessystem put forward byTilly, 86 holdsthat city-states and city-leaguesas the medieval competitors of territorial actors were notovercome militarily.He explainsthe triumph of territorialstates as theresult of apreference for themby “ socialactors” and a processof “ mutualempowerment,” that is, preferentialrecognition granted to each other by a certaindominant type of actors thatled to “ institutionalmimicry.” 87 Ithinkthat this deemphasizing of military power as a factorin the evolution of theEuropean system is quitejustiŽ ed. While I wouldnot deny that war makingand militaryrivalry played a largerole in theevolution of European states, I wouldalso pointout that, in fact,even before the twentieth century European actors hardly ever ceasedto existbecause of militarydefeat. The only notable exception to thisare the city-statesof northernItaly in thelate Middle Ages and the early . This regionand period apart, I cannotthink of any European actors destroyed because theywere unableto defendthemselves before the (the suppres- sionof Polandtook place after the outbreak of thatrevolution and was linkedto it). Thegradual obsolescence, in thelate Middle Ages and the , ofthe feudal system with its hierarchy of largely autonomous actors led in some countriesto the consolidation of actors at the sub-royal level (Germany, for example),whereas in other countries power gravitated toward the crown at the expenseof lesseractors (France, for example).Yet even in thelatter case, and even thoughthis process of centralization could indeed be accompanied by warfare betweenthe crown and certain great nobles, warfare byitself did not extinguish any actors.Thus the powerful duke of Burgundy (a vassal,for differentterritories, both oftheFrench king and the emperor) ceased to be a playerin European politics in 1477,not because of thedeath of Charlesthe Bold on thebattleŽ eld, but because he leftno male heir. Through the marriage of his daughter, his dominions fell to the Habsburgdynasty (except that the French crown claimed those parts of the inheritancethat it saw asFrench Ž efs). Likewise,the French king eliminated the autonomyof the last of the great French duchies, Brittany, by marrying the crown princeto its heiress in 1514. If thenumber of actorsdeclined, it was thusgenerally throughmarriage and inheritance. Eventhe European system at large was reallya regime:“ sovereignty”or rather actorhoodwas basednot on power but on mutual convention. Throughout the ancienre ´gime, militarypower was aconspicuousattribute of somebut not all actors ofthe system, and its use was builtinto the regime in which they took part as somethingthat was acceptableif not carried too far. Warfare wouldstop short of

85.See Ruggie1989, 28; and compare Ruggie1993, 163. 86.Spruyt 1994, 30 –33. 87.Ibid., 175– 76. TheWestphalian Myth 279 suppressingother actors entirely and remain limited to adjustingtheir frontiers and assets.Powerful actors tended to Ž ghteach other, not weaker actors. Thus in eighteenth-centuryEurope warfare was adomainof theŽ vemajoractors, whereas smalleractors tended to beinvolved only marginally or not at all. 88 Thetwo major eighteenth-centuryactors that were alsoestates of the empire, Habsburg and -,waged war againsteach other but abstained from attacking weakerGerman princes. If theEuropean system as a wholecan be calleda loose,informal regime with few institutions(though institutions did come to exist, such as standardized forms of diplomacy),the empire was essentiallya moredeveloped regime with more elaborateinstitutions, providing a systemof governance for mattersof common interestwhile leaving internal government to each of the participating actors individually.With the military strength of mostestates of theempire negligible or indeednonexistent, evidently their actorhood was exclusivelyascriptive: based on rules,not power. They, as well as the collective entity they made up, existed exclusivelybecause of collective and mutual empowerment, which in turn was basedon a shared,rather elaborate code of structural and procedural legitimacy. If thisis what enabled those units to exist in the Ž rst place,it obviously restrained them,too. As wellas a systemof empowerment, the empire was thereforealso a systemof collective restraint. It actually shared this double quality with the Europeansystem of whichit was partbut displayed it more conspicuously. Theactors in this system, the estates of the empire, remained free agentsin the sensethat there was littleto prevent them from leavingthe empire had they been determinedto doso.Interestingly, even the most powerful, like the king of Prussia, apparentlynever even contemplated leaving. One reason for thismay have been the highdegree of legitimacyand recognition of theactors’ status and possessions that membershipin the empire bestowed and that was presumablyseen as advantageous evenby thosewho need not have depended on it.Besides, breaking the link with the empirewould have made it necessary to gain recognition of the new status thus establishedafresh and would have entailed a cost(when the elector of Brandenburg adoptedthe title of kingof Prussia in 1701,it requiredyears of negotiationsto have eventhat mere changeof titleaccepted by the other European actors). WhileKenneth Waltz has posited that “ inany self-help system, units worry about theirsurvival,” 89 Idoubtthat this concern applied to Europeanactors of the ancien re´gime. Ratherthan being exclusively “ self-regarding,”90 theydisplayed a consid- erableamount of “ social”behavior even in the European system at large and still morein the German subsystem.At leasta partialexplanation for thissocial behavior isthat the actors in question did indeed feel part of asinglesociety. It is important torealize that before the nineteenthcentury state and society were notgenerallyseen ascoextensive (certainly not in continental Europe). In economic terms, a large

88.This emerges clearly fromDuchhardt 1997. 89.Waltz 1979,105. 90.Ibid., 91. 280 InternationalOrganization territorialstate of the preindustrial era was invariablya patchworkof economic circuitswith little overlap between them and with local circuits the most important byfar. Whilemercantilist theorists might treat a givenmonarchy as a unit,that neverthelessdid not make it economically integrated. In social and cultural terms, seventeenth-and eighteenth-century European society was stillvery much a trans- border,pan-European phenomenon, the more cosmopolitan the higher up one movedthe social ladder; if manypeople never strayed far from wherethey had been born,their attachment was lessto a politicalentity than to a localityor area. Consciousnessof a commoncivilization balanced consciousness, within that civi- lization,of group separateness (ethnicity, for example),which on thewhole was not exploitedpolitically. As lateas the dawn of the nineteenth century, the German philosopher Johann GottliebFichte could write that “ thepeoples of modern Christian Europe may be regardedas a singlenation.” 91 He pointedout that thisis how the modern states came into being— not as the origin of statesis usuallydescribed in jurisprudence, by the gathering and uniting of uncon- nectedindividuals under a commonlaw, but rather through the separation and dismembermentof asingle,large, but weakly connected human mass. The severalstates of ChristianEurope, then, are pieces torn from theformer whole andwhose extent has for themost part been determined in rough and ready fashion.It is no wonder that this separation, which occurred not so long ago, isnot yet complete. 92 In the ancienre ´gime, rulersfelt that the stage on whichthey acted was watched notjust by their subjects but by a widersociety, and this latter, wider public was importantto them. European rulers would not ignore European opinion, still less Germanrulers German opinion beyond their borders. Linguistically uniŽ ed, in culturalterms the empire obviously formed a singlesociety almost entirely unaf- fectedby geographical borders between actors. Comparing the eighteenth-century Europeansystem with its German subsystem may well shed light on howthe extent towhich actors are embedded in transborder social networks (including in the culturalŽ eld)in uences the character of theirmutual relations.

Summary Themain point of this section is that there is more to IR thandealings between “sovereign”actors each seen as asocietyunto itself. A Žxationon sovereigntyand thedubious view of sovereigntyas basedon militarycapability rather than mutual empowermenthave tended to produce a narrowperception of “ international” politicalphenomena. This selective, simplistic approach has been unable to deal with“ deviant”patterns such as the Holy Roman Empire. Regularly dismissed as

91.Fichte 1800, 136. 92.Ibid., 140 – 41. TheWestphalian Myth 281 unimportant,the empire turns out to be a richsource of insights once the sover- eignty-centeredview of “ international”relations is abandoned for amoreopen approach.This is especially true if, rather than regarding it as a phenomenon sui generis, theempire is seen against the background of thelarger European system of whichit formed part: its peculiarities throw into relief aspects that are in fact also apparentin the European system.

Conclusion: Sovereigntyand IR Theory

Allthis may offer cluesfor understandingcontemporary international politics, too. WhatI thinkemerges from thiscritique of the standard account of the 1648 settlementand related topics, such as the Thirty Years’ War orthenature of theHoly RomanEmpire, is the need for areappraisalof the role that the concept of sovereigntyhas played in IR theory. Thoughthe word is older,of course,the concept of sovereigntyitself was honed andgiven its present key role (both interpretive and normative) by the great nineteenth-and twentieth-century international lawyers. This happened while tech- nologicalprogress facilitated and intensiŽ ed the central administration even of large territorialunits, giving greater power than ever to central government and thus makingeach state more of aclosedcircuit in economic, political, and social terms. Theprocess by which the single society of medieval Europe, with its intertwining ofmultiple, “ heteronomous”93 politicalauthorities evolved into neatly divided, “sovereign”territorial states was agradualone. But the most signiŽ cant transition occurredwith the French Revolution and the onset of industrialization, not with the Peaceof Westphalia. As thenineteenth century wore on,the international system owedless and less to its antecedents in the ancienre ´gime becauseindustrialization causedits ongoing and ever more radical transformation. It was industrializationthat createdmuch more extensive and at the same time more integrated economic circuits,the means to administer them, and— as ErnestGellner has argued 94— the phenomenonof modern as a unifyingand functionally indispensable ideologyfor thisnew type of politicalentity. Onlyin this kind of systemcould the concept of sovereigntyacquire its present meaning.For alongtime after Jean Bodin popularized the concept in the late sixteenthcentury, political theorists and practicians alike attached more importance toits domestic than to its external side. They were concernedwith the power of rulersover their subjects and only marginally with relations among rulers, much less peoples.But now, for theŽ rst timein history, the integrating power of industrial- izationbrought about a nearcongruence between state and society: each “ nation” statewas now,or at leastcould conceivably be, itsownsociety, considered complete

93.Friedrich Meinecke, quoted in Ruggie1992, 159. 94.Gellner 1983. 282 InternationalOrganization untoitself. In this novel situation, regarding sovereignty as a masterconcept of both domesticand international politics made a greatdeal of sense. Whatgoes unnoticed is the historically exceptional and transitory character of thatparticular situation, of nearcongruence between state and society. In the context ofthe new nation-state, sovereignty had a highlypositive ring, a popularemotive appeal.And as it increasingly became a centralconcept of contemporary interna- tionalpolitics, historians eager to anchor the new nationalism in history tended to projectthe heightened role of the concept into the past. Though routine usage of the worditself does go back at least to the seventeenth century, historians have overlookedthe fact that the connotations were notquite the same then as later—one majordifference being that in the ancienre ´gime sovereigntywas regardedas pertainingto individualrulers, not their dominions or subjects.With history almost invariablywritten from anationalangle, the transhistorical link connecting past actorsto contemporary ones (such as seventeenth-century “ France”to nineteenth- century“ France”) was emphasizedover the link connecting actors within a given period. Thistendency made actors appear in retrospect as similarlyneatly divided from eachother and as similarly inspired only by their own self-interest and largely unfetteredby mutual obligation as, from thelate nineteenth century onward, the modernsovereign state was seento be. Actors evidently unable to stand on their ownfeet militarily, such as the majority of those making up the Holy Roman Empire,tended to be dismissedwith contempt. That attitude was alsopassed on to twentieth-centuryIR realismwith its explicit bias in favor of powerful actors. 95 From atheoreticalpoint of view,unless power as such is regardedas akeyvariable, powerfulactors are no more interesting than less powerful ones; and the primary importanceattached to power is itself explained by the historically speciŽ c char- acteristicsof late nineteenth-century thinking. 96 IRtheory,and its still-dominant paradigm realism, thus developed against the backgroundof whatmay be calledthe ideology of sovereignty.It was notrealized that,far from beingtraditional, this ideology had its roots only in the transient nineteenth-centuryheyday of stateautonomy. Its emotiveappeal has made sure that itsadherents are still numerous despite the fact that the process of industrialization, withits inexorable dynamic, is nowdestroying the very autonomy that it atŽ rst gave thenineteenth-century state. Industrialization is about division of labor, which it bringsabout on an ever greater scale. In the nineteenth century, this process raised thelevel of the most important economic circuits from thelocal to the “ national” (thatis, state) level; this evolution made the state more integrated and strong and gaveus thesovereign state (rather than prince) as, intellectually, we knowit. Very quickly,however, beginning already in thelate nineteenth century, industrialization wenton to produce ever more division of labor and thus ever greater economic

95.For example, Waltz 1979,131. 96.See Osiander1998, 421– 22; and Osiander forthcoming. TheWestphalian Myth 283 interdependenceacross state frontiers, offsetting the enhanced internal cohesion gainedearlier. The administrative prowess acquired by the nineteenth-century state aswell as the ideology of nationalism also dating from thatperiod endow the territorialstate with considerable staying power. But ongoing division of labor (“”) putsit under ever-increasing pressure, and with it sovereignty- basedIR theory. Growinginterdependence as a resultof industrialization has, for acenturyor more,continuously undermined the capacity for self-relianceof internationalactors (states)and will diminish it further. This development has been accompanied by an ongoingswing of thependulum away from near-totalautonomy of statesand by a proliferationof international institutions trying to “ getin” on the management of transborderpolitics. As aresult,the global system today in certain respects bears moreresemblance to the type of system exempliŽ ed by the Holy Roman Empire thanto the so-called Westphalian model. There is a clearde facto trend in internationalpolitics away from classicalsovereignty and toward something closer to landeshoheit, territorialjurisdiction under an external legal regime shared by the actors.Like the estates of the empire, modern states are also tied into a complex structureof governance that creates a networkboth of cooperation and of mutual restraint.Participation in this network is voluntary in principle but difŽ cult in practiceto escape because of the high cost escaping would entail. How elaborate(and effective) this external legal regime becomes will evidently dependon the actors’ situation. The closest contemporary parallel to the early modernHoly Roman Empire is the . Factors favoring integration andpresent in bothinstances would seem to be acommoncultural identity and the presenceof outside threats faced by all the actors in common. During the peace negotiationsof the1640s, delegates of theGerman princes expressed their fear that withoutthe empire Germany would come under foreign domination. 97 European integrationstarted in the 1950s with the memory of World War IIstillfresh andin theface of the Soviet threat. It continues to be fueled by the realization that individuallythe European states are too weak to defend their interests against, for example,the United States or tofacepossible new threatsfrom theeast. Conversely, atpresent U.S. unilateralism,the somewhat problematical relationship between the UnitedStates and such international organizations as the UN, thelikelihood that Washingtonwill stand apart from establishinga worldcriminal court (the only Westerngovernment to do so), and the reluctance of (U.S. dominated)mainstream IRtoabandon the “ Westphalian”model of international relations with its master conceptof “ sovereignty”may well re ect the fact that in thecurrent global system theerosion of the autonomy of states affects the United States less than others. Wecanshed new light on thedebate about whether sovereignty is comingto an endand what this means for internationalpolitics once we realizethat our current understandingof sovereigntyas central,indeed, near indispensable, to international

97.Osiander 1994, 33, 74, and chap. 2 passim. 284 InternationalOrganization relationsis based on nineteenth-centuryrationalizations for conditionsprevailing at thetime that were notonly historically unprecedented but by their very nature transitory.We cannotbe moving“ beyondWestphalia” if “ Westphalia”as generally understoodtoday in IR isreally a Žgmentof the nineteenth-century imagination, stylizedstill further, and reiŽ ed, by the discipline of IR itselfin the twentieth century. If accepted,my reexamination here of the standard account of “ Westphalia” shouldalert us to a numberof important insights: namely, that sovereignty as currentlyunderstood does not go back to the seventeenth century; that, even then andnevertheless, relations among autonomous actors were perfectlypossible withoutwaiting for theconcept (in its current sense) to be invented;that the degree ofautonomyof theactors might vary considerably (in part by theirown choosing) withouttherefore necessarily leading to hegemonialdomination or evenempire (in theeveryday meaning of the word); that, consequently, the dichotomy empire- sovereigntyis a falseone; that a lowdegree of autarchyof individualactors, on the onehand, and a highdegree of transbordersocial linkage, on the other, will likely producemore elaborate forms ofinstitutionalized cooperation; and that this has happenedbefore and thus is not a revolutionarynew phenomenon.

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