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8 Austl. J. Legal Hist. 181 (2004)
The Westphalian Model in Defining International Law: Challenging the Myth

handle is hein.journals/ausleghis8 and id is 185 raw text is: Australian Journal of Legal History (2004) Vol 8

THE WESTPHALIAN MODEL IN DEFINING INTERNATIONAL LAW:
CHALLENGING THE MYTH
STItPHANE BEAULAC*
1 INTRODUCTION
Words and expressions are activities in themselves.1 Words and expressions are
mental-social phenomena separate and distinct from reality.2 Words and expressions
exist and act within human consciousness.' Indeed, through the cognitive process of
the human mind, not only can language represent reality, but it may play a leading
part in creating and transforming reality, including modelling the shared
consciousness of society.4 'Westphalia' is one of those powerful words which has
PhD (Cantab), Faculty of Law, University of Montreal, Canada. This paper was delivered at
the 22nd Annual Conference of the Australia and New Zealand Law and History Society,
entitled 'Defining Jurisdictions and Boundaries', held in Brisbane on 10-11 July 2003, and is
largely based on my PhD thesis now published as S Beaulac, The Power of Language in the
Making of International Law - The Word Sovereignty in Bodin and Vattel and the Myth of
Westphalia (2004).
For more on this, see J L Austin's 'speech-act theory' in How to do Things with Words (1962).
2      Such a conceptualisation of words and expressions as separate and distinct from reality, is
essentially nominalist - etymologically, belonging to a name. Nominalism is a medieval
philosophy, most often associated with William of Ockham, which took the view that abstract
concepts are merely words and do not refer to anything that exists in the way that particular
things exist.
This idea of 'consciousness of humanity' is borrowed from the moral philosophy of Georg
Wilhelm Friedrich Hegel, in particular from G W F Hegel, Phdnomenologie des Geistes
(1952) first published in 1807, §§ 632-671; see also the translation by A V Miller, G W F
Hegel, Phenomenology of Spirit (1977) 383-409. The idea of 'consciousness' associated to an
ensemble of human beings was suggested by G Butler, 'Sovereignty and the League of
Nations' (1920-21) 1 British YB Int'l L 35, 42, who discussed the word sovereignty, and more
particularly the expression 'external sovereignty,' by resorting, inter alia, to insights from the
new field of psychology. See also P Allott, 'Reconstituting Humanity - New International
Law' (1992) 3 European JInt'l L 219, 223, who expressed the following view: 'Society exists
nowhere else than in the human mind. And the constitution of a given society exists in and of
human consciousness, the consciousness of those conceived as its members and its non-
members, past and present. Wherever and whenever a structure-system of human socializing is
so conceived in consciousness, there and then a society is conceived - family, tribe, organized
religion, legal corporation, nation, state ...' [emphasis added]
This is based on Ludwig Wittgenstein's theory of language which, initially, was to the effect
that words could represent reality, that language offered, as it were, a picture of the world; see
L Wittgenstein, Tractatus Logico-Philosophicus (1961) 15ff and 5Iff However, in his later

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