The incomplete authority of the nation-state

9
The incomplete authority of the
nation-state
Humans at an individual level are the logical starting place for a social philoso-
phy concerned with the significance of norms and the social conditions for
human flourishing. Norms, if they are to be successful, should appeal to the
interior dimension of the human on the Space Axis of the Space–Time Matrix;
not just decreed from the exterior dimension by state legislation. Interior alle-
giance requires appealing, amongst other things, to shared culture, language
and history – to those instincts and institutions which motivate humans in their
collective endeavours. Concerning the political implementation of these
instincts and institutions, there can be little doubt, at least for the foreseeable
future, that the nation-state is, and is likely to remain, the basic unit of inter-
national order, and legally paramount with respect to local societies. To speak
of the ‘nation-state’ then begs a question, if we are to understand the basics of
contemporary human ordering: what is the nature of the nation-state, and, by
implication, the separate natures of both the nation and the state? Having con-
sidered the immediate Western consequences of the French Revolution, it is at
this point of our excavation into Western law and authority that the moral and
political attachments of greatest socio-legal significance for today can now be
traced.
9.1 The cultural foundation of the nation
The ‘nation’ as a concept has been around for thousands of years. For example,
the Fourth Book of Moses, Numbers, contains a prophetic reference to Israel
amongst the nations.
1
As will become apparent, that idea of the nation is very
simple compared with the complexity of nationalism as it erupted in the twen-
tieth century.
2
Rather than applying to an extended tribe, modern nationalism

with its fictitious ideas of a scientific racial commonality has been a tendency
generated by the industrialisation and then fragmentation of society. Primarily
11
Numbers 23: 9: ‘For from the top of the rocks I see him, And from the hills I behold him:
There! A people dwelling alone, Not reckoning itself among the nations’ (NKJV).
12
Cf. Aviel Roshwald, The Endurance of Nationalism: Ancient Roots and Modern Dilemmas (New
York: Cambridge University Press, 2006), asserting a continuity, although acknowledging a
distinction, between pre-modern and modern nationalisms (p. 12).
a negative concept, Isaiah Berlin once defined national movements as responses
to wounds inflicted on peoples, moving as a twig springs back and whips the
face of the person touching the twig.
3
9.1.1 Language and nation
About the turn of the eighth and ninth centuries, the Venerable Bede had
referred to the gens Anglorum (English nation).
4
From the ninth to eleventh cen-
turies, there was a history of antagonism between the multiple, parcellised sov-
ereignties of Europe, particularly in Germany, as we saw prior to the Papal
Revolution.
5
There was difficulty in giving names to the two Frankish states
which comprised what are now France and Germany. Both were ‘Frances’,
carved out of the regnum Francorum. The labels ‘East’ and ‘West’ did not at the
outset evoke national consciousness. Perhaps the greatest contrast between
them was in the language: in the West the language was Romance; and in the
East, the language was diutisc, from which derived the modern German deutsch,
meaning ‘germane or alike’. As Marc Bloch concluded:
The use of the same language draws men closer together; it brings out the

common factors in their mental traditions and creates new ones. But a difference
of language makes an even greater impact on untutored minds; it produces a
sense of separation which is a source of antagonism in itself. . . . Nothing is more
absurd than to confuse language with nationality; but it would be no less foolish
to deny its rôle in the crystallization of national consciousness.
6
An early inkling of English nationalism was noted by a hagiographer, describ-
ing the marriage of Henry I (the Norman William the Conqueror’s son) to a
princess of the ancient dynasty of Wessex.
7
Other than these references, nation-
alism at that time, as we now consider it, did not exist. What origins there were
appear mainly as linguistic commonalities. From the end of the twelfth century,
some universities organised ‘nations’ of students from geographically proxi-
mate areas (with some ethnic-based exceptions).
8
In the fourteenth and fif-
teenth centuries, ‘patriotic spirit’ was more present than ‘nationalism’ as such.
Certainly there was no such thing as an exclusive national homeland. That
concept is a ‘modern fantasy’.
9
Benedict Anderson, in his book Imagined Communities, further empha-
sises the importance of language and its consolidation through print in the
197 The incomplete authority of the nation-state
13
See David Miller, ‘Crooked Timber or Bent Twig? Isaiah Berlin’s Nationalism’ (2005) 53
Political Studies 100–23, 101; see too Roshwald, Nationalism, ch. 3.
14
R. C. van Caenegem, An Historical Introduction to Western Constitutional Law (Cambridge:
Cambridge University Press, 1995), p. 13.

15
Marc Bloch, Feudal Society, trans. L. A. Manyon (London: Routlege & Kegan Paul, 1942),
p. 433. See too ch. 5, section 5.1, p. 96 above.
6
Bloch, Feudal Society, pp. 434–6.
17
Ibid., p. 432.
18
Jacques Le Goff, The Birth of Europe, trans. Janet Lloyd (Oxford: Blackwell Publishing, 2005),
pp. 175–6.
9
See Norman Davies, Europe: A History (London: Pimlico, 1997), p. 217.
constitution of national identity. What he termed the ‘imagined community’ of
Christianity was maintained to a significant degree by the common language of
Latin, which facilitated supranational communication. Print created the possi-
bility for shared simultaneity. Common issues and events could be experienced
through a medium of dissemination not confined by parochial languages
and word of mouth, enabling reports of emerging common interest to traverse
distances in book or pamphlet form. Latin had been a language of bilinguals.
New markets also appeared for books in local languages in addition to the
universal Latin language. The Protestant Reformations contributed to the
undermining of the Latin language and its supranational community of
Christendom. Administrative vernaculars became popular in the sixteenth
century, consolidating moves towards the decentralisation of universalist high
Latin and Roman church culture into parochial, nationalising communities.
‘These fellow readers, to whom they were connected through print, formed, in
their secular, particular, visible community, the embryo of the nationally imag-
ined community.’
10
The interior, cultural consciousness of ancient times is a weak form of

nationalism. On the Space Axis, nationalism is dependent upon groups becom-
ing aware of other groups exterior to them, and a sense of progress and history
is required on the Time Axis of our Space–Time Matrix. Nationalism becomes
stronger when peoples, aware of cultural diversity, become more aware of cul-
tural change, inspiring comparisons to other cultures.
11
Allegiance to a national
identity is, therefore, a social construct, drawing on mental traditions.
Nationality exists in the mind. That accounts for its power, fluidity and at times
lethality. ‘[W]here people define situations as real, they are real in their conse-
quences.’
12
Psychology is arguably the most useful discipline via which to
enquire into the concept of the nation.
13
9.1.2 Industrialisation and nation
Traditionally, as we saw,
14
Western society was in essence status based. People
were characteristically born into their social position and rarely ventured
beyond their inherited status, subordinated as they were to the hierarchical
webs of dependence and reciprocal rights and duties enmeshing kings, lords,
knights, serfs, villeins and clergy. There was little scope to ‘climb the social
198 A Wholly Mammon Empire?
10
See Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of
Nationalism (London: Verso, 1991), pp. 37–44.
11
See John Plamenatz, ‘Two Types of Nationalism’ in Eugene Kamenka (ed.), Nationalism: The
Nature and Evolution of an Idea (Canberra: Australian National University Press, 1973),

pp. 22–36.
12
Ray Pahl, ‘Are all Communities Communities in the Mind?’ (2005) The Sociological Review
621–40, 637.
13
Renier, cited in Davies, Europe, p. 381. See too Neil MacCormick, Questioning Sovereignty:
Law, State, and Nation in the European Commonwealth (Oxford: Oxford University Press,
1999), p. 172.
14
See ch. 4, section 4.5, p. 88 above.
ladder’, so to speak. The movement from status to contract can be associ-
ated with emerging social contractarian thought and eventually with the
Enlightenment ideology of autonomy, equality and universal brotherhood in
reason. This segued with the liberalism of the Industrial Revolution, which spilt
through the Western social and ecological landscape in the late eighteenth, early
nineteenth centuries.
According to Ernest Gellner, the status-bound relationships of the previous
agrarian economy dissipated into ‘anonymity, mobility, atomisation . . . [and]
the semantic nature of work’. (Semantic work replaced the agrarian reliance
upon brawn, and is based upon some degree of literacy and sophistication,
typically involving machinery.) Homogeneity (rather than status-dictated
differences) became the political bond, leading to acceptance in the high culture –
the culture used by the bureaucracy. Difference conjured subservient status.
15
To
some extent this was borne out by the new British nationalism which, from the
1707 Union, and by means of the promotion of loyal servants, was superimposed
upon the prior nationalisms of the English, Welsh, Scots and Irish.
16
Reactionary nationalism from underclasses may be ‘a reaction of peoples

who feel culturally at a disadvantage’or inadequate.
17
That disadvantage may be
very real and may give rise to the prejudice of a type of ‘explanatory national-
ism’,
18
by which allegedly inherent propensities, for example, to poverty, illness,
corruption and laziness, are used by the advantaged to explain the condition of
the disadvantaged. The choice of language of the dominating bureaucracy
limits social diversity; and competition for power becomes competition also
between kinds of person.
19
Competition becomes fiercer, and if a culture cannot
be imitated to advantage, then those at a disadvantage become even more com-
petitive and demand different criteria of success.
20
Consequently, there can be
‘unificatory nationalism’, for example, of a nineteenth-century German or
Italian type; or ‘diaspora nationalism’, of the Jewish type.
21
By these means, to
adopt a modern term for an old process, ‘ethnic cleansing’ can occur by gradual
attrition and evolution over a thousand years as in France; or quickly and with
bloodshed, the Balkans being a modern example.
22
Sometimes there may be no
real competition at all, for the disadvantage may be so crippling to a nationally
conceived group, even if comprising the majority of a population.
23
199 The incomplete authority of the nation-state

15
Ernest Gellner, Nationalism (London: Phoenix, 1998), pp. 28–30.
16
See Davies, Europe, p. 813.
17
See Plamenatz, ‘Two Types of Nationalism’, pp. 27–9.
18
The term is used in Thomas W. Pogge, World Poverty and Human Rights: Cosmopolitan
Responsibilities and Reforms (Malden: Polity Press, 2002), pp. 139–44, in the context of
developed states deflecting blame from their responsibility for conditions in Third World
countries (e.g., by paying military dictatorships who alienate their people’s resources).
19
Gellner, Nationalism, pp. 40–2.
20
Plamenatz, ‘Two Types of Nationalism’, pp. 32–3.
21
See Johann P. Arnason, ‘Nationalism, Globalization and Modernity’ in Mike Featherstone
(ed.), Global Culture: Nationalism, Globalization and Modernity (London: Sage, 1990 reprinted
1996), pp. 214–15, referring to Gellner, Nations and Nationalism.
22
Gellner, Nationalism, pp. 46–7.
23
For examples, see Amy Chua, World on Fire: How Exporting Free Market Democracy Breeds
Ethnic Hatred and Global Instability (New York: Anchor Books, 2004).
Religion (a salvationist religion helps more),
24
ethnicity, culture and race are
amongst the usual shared attributes which define a nation,
25
in addition to, or

perhaps as a corollary of, common language. As opposed to being chosen, these
are things which are mostly inherited if not inherent. Potent status complexes
are entwined in nationalism as a response to industrialisation. Fears of being
socially marginal can lead to nationalistic violence and terrorism.
26
9.1.3 Race and nation
Racism was not a hallmark of European medievalism. Of course, discrimin-
ation on the basis of religious faith in the bold terms of Christian, Jew and
heathen had previously been endemic. That discrimination, though, was not
racial. It was based less upon physical characteristics and more on habits of
worship and social self-ordering. Not until the colonialism of the sixteenth
century, spearheaded by the novelty of the Spanish colonial experiences, were
racially separatist laws invented to govern churches, schools and guilds.
27
In the
nineteenth century, Eurocentric views about the Darwinian, evolutionary
nature of civilisation and international law became endemic.
28
The idea that race was a legitimate basis for community developed primarily
in nineteenth-century Europe and the United States, in the natural science of
the day. It is most commonly associated with Nazi Germany. The wider West,
however, had shared the laboratory of a flawed science issuing from ideology
highly convenient to the then contemporary ruling classes. Modern biology
suggests that racial similarities at a genetic level are miniscule if not non-
existent, debunking the biological evidence of race.
29
St Paul, when he wrote
that ‘God made from one blood every nation’,
30
might also have referred to a

common gene pool too. What surface differences exist and have evolved
between peoples are perhaps more readily explained by geography.
31
Previous
references in this chapter to the mobile European tribalism of medieval Europe
undermine the notion of separate, untainted bloodlines. What group cohesion
or kinship does exist under such rubric appears to be reducible, again, to
200 A Wholly Mammon Empire?
24
Arnason, ‘Nationalism, Globalization and Modernity’, p. 217.
25
Lea Brilmayer, ‘The Moral Significance of Nationalism’ (1995) 71 Notre Dame Law Review
7–33, 10.
26
See Mark Juergensmeyer, Terror in the Mind of God: The Global Rise of Religious Violence
(Berkeley: University of California Press, 2003), pp. 190–218.
27
See Martin van Creveld, The Rise and Decline of the State (Cambridge: Cambridge University
Press, 1999), pp. 300–1.
28
See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law
1870–1960 (Cambridge: Cambridge University Press, 2001), pp. 76–8. On the social
construction of race, see too Ivan Hannaford, Race: The History of an Idea (Washington: The
Johns Hopkins University Press, 1996).
29
See e.g. Joseph L. Graves Jr, The Emperor’s New Clothes: Biological Theories of Race at the
Millennium (New Brunswick: Rutgers University Press, 2001).
30
Acts 17: 26 (NKJV).
31

See Jared Diamond, Guns, Germs, and Steel: The Fates of Human Societies (New York: W. W.
Norton & Company, 1999).
psychology. This is not, however, to deny the social reality of race and, of course,
racism, and the socially unequal resource distributions across different peoples.
9.1.4 Retrospection and nation
According to Lea Brilmayer, ‘[n]ationalism means simply that one identifies
with the claims of one’s nations and one’s conationals, and takes them as one’s
own’. Typically, these claims are legitimated by reference to such justifications
as restoration of land because of wrongful annexation, claims that ‘God
intended us to have it’, or reparations for which land is considered to be the only
compensation.
32
Right to territory is the typical claim by nations. The nature of
the claim makes it difficult to enter into dialogue with other nations because it
is often an absolute claim based upon an absolute moral authority, namely the
authority of the national collective and its sacralised history. Such a manifesta-
tion of nationalism is primarily cultural and moral, limited in conceptual
resources for entering into more logical, political dialogues. Hence nationalism
can be regarded as containing, in general, a particularistic moral appeal as
opposed to a more general, exterior, political appeal.
These aspects of nationalism can be expressed more strongly. Nations tend to
be associated with historical considerations: for example, ‘common myths, past
glories or defeats, injustices suffered or overcome, grievances nourished and
burnished’ which, through ‘[c]ommon language, culture, genealogy and reli-
gion project the romanticised past onto the future’. Individuals defining them-
selves as such are ‘likely to want to live among others of the same ethnie’,
enjoying the same food, music and rhythms of the ancestors.
33
The invention of
that tradition, and the investment of national status in a ‘tailored discourse’

such as ‘national history’, is not to be ignored.
34
As Eric Hobsbawm has
observed, the national movements of the late twentieth century tended to be
negative,
35
attempting to shield ethnically self-defined groups from the realities
of modern political organisation and responsibility being generated, in dia-
logue, at a supranational level.
Etymologically, the very word nation is rooted in nature and the idea of being
born (nasci, in Latin).
36
This suggests a concept of authority which is grounded
more in an intuitive cultural heritage or history rather than in an articulated
201 The incomplete authority of the nation-state
32
Brilmayer, ‘Moral Significance’, 8.
33
Thomas M. Franck, ‘Clan and Superclan: Loyalty, Identity and Community in Law and
Practice’ (1996) 90 American Journal of International Law 359–83, 363.
34
Eric Hobsbawm, ‘Introduction: Inventing Traditions’ in Eric Hobsbawm and Terence Ranger
(eds.), The Invention of Tradition (Cambridge: Cambridge University Press, 1983), p. 14; see
too Philip Allott, The Health of Nations: Society and Law Beyond the State (Cambridge:
Cambridge University Press, 2002), [4.42].
35
See Eric Hobsbawm, Nations and Nationalism Since 1780: Programme, Myth, Reality
(Cambridge: Cambridge University Press, 1990), ch. 6.
36
Gianfranco Poggi, The State: Its Nature, Development and Prospects (Stanford: Stanford

University Press, 1990), p. 26.