Nationalism and Globalisation

Stephen Tierney, Stephen Tierney

• Publisher: Hart Publishing
• Year: 2015
• ISBN:
  9781509902071
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

This book addresses a seemingly paradoxical situation. On the one hand, nationalism from Scotland to the Ukraine remains a resilient political dynamic, fostering secessionist movements below the level of the state. On the other, the competence and capacity of states, and indeed the coherence of nationalism as an ideology, are increasingly challenged by patterns of globalisation in commerce, cultural communication and constitutional authority beyond the state. It is the aim of this book to shed light on the relationship between these two processes, addressing why the political currency of nationalism remains strong even when the salience of its objective – independent and autonomous statehood – becomes ever more attenuated.
The book takes an interdisciplinary approach both within law and beyond, with contributions from international law, constitutional law, constitutional theory, history, political science and sociology. The challenge for our time is considerable. Global networks grow ever more sophisticated while territorial borders, such as those in Eastern and Central Europe, become seemingly more unstable. It is hoped that this book, by bringing together areas of scholarship which have not communicated with one another as much as they might, will help develop an ongoing dialogue across disciplines with which better to understand these challenging, and potentially destabilising, developments.

1

Nationalism and Globalisation: New Settings, New Challenges

STEPHEN TIERNEY

I. Introduction

The nation-state is in flux. It is beset by seemingly contradictory challenges from within and beyond its borders. On the one hand, the very fact of statehood and the meaning of nationalism, the ideological building block which has sustained the state since the nineteenth century, have each been brought into focus by a series of dramatic centrifugal trends. The territorial re-ordering of Central and Eastern Europe since the early-1990s; the emergence of new states such as Eritrea, East Timor, Kosovo and South Sudan; the intensification of already fraught nationalist conflict, particularly in Africa and Asia but also now on the borders of Russia and Ukraine; and the continued resilience and ambitious constitutional plans of sub-state nations in Canada, Latin America and Western Europe, characterised by the dramatic referendum on independence in Scotland in 2014, together render nationalism, which many assumed had ceased to have purchase in a homogenising world, one of the most perplexing and yet urgent concerns both for states and for international relations today.

At the same time, and in a seemingly paradoxical way, the competence and capacity of states, and hence the vitality of nationalism as an ideology, have been challenged by another development in seemingly stark contrast to these fissiparous moves. While nationalist movements challenge the state from below, patterns of commerce, cultural communication and constitutional authority are moving increasingly to sites beyond the state. This process has varied from sector to sector: in the economic sphere through the expansion of the ‘free’ or relatively open markets through which trade is able to transcend national borders, backed by international institutions which have evolved significantly since the Bretton Woods era; in cultural terms through the technological revolution in communications, supported by the open market in goods and services; and in new political and legal sites of power as patterns of authority and institutional apparatus emerge or strengthen to support the different ways in which economic and popular vectors of interaction continue to transcend state borders. In all of this Europe must be treated as a special case since the processes of economic and constitutional integration proceed within the European Union at a pace unrivalled by any other territorial sphere, but this does not detract from the fact that these wider trends are in many ways truly global in nature.

It is the aim of this book to shed light on the relationship between these two processes, addressing why the political currency of nationalism remains strong even when the salience of its objective—independent and autonomous statehood—becomes ever more attenuated in the face of homogenising and centralising currents beyond the state.

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This book emerges from a symposium organised by the Edinburgh Centre for Constitutional Law at the University of Edinburgh in May 2012 entitled, ‘Nationalism and Globalisation: New Settings, New Challenges’. The symposium resulted in two very fruitful days of deliberation, which also involved a keynote address by Michael Ignatieff. Building upon these discussions, the book brings together a multi-disciplinary group of scholars to address the interface between the broadening and deepening of political demands founded in nationalism and multiculturalism on the one hand, and the evolving dynamics of transnational constitutionalism on the other.

Most of the contributors to the book are legal scholars and legal theorists. Within the discipline of law, those who approach the interface between nationalism and globalisation tend to belong to three schools: those addressing the status of states and the changing normative environment within which they operate through the prism of international law (see contributions by Oklopcic (chapter nine), Walker (chapter eight) and Wheatley (chapter seven)); those applying constitutional theory in attempting to understand the changing nature of sovereignty and the pluralisation of legal authority beyond the state, often in the context of the European Union or European human rights law (see contributions by Mac Amlaigh (chapter eleven)) and Bellamy (chapter ten)); and those who have combined constitutional theory with nationalism studies in an attempt to analyse the constitutional implication of constitutional claims made by sub-state national societies for constitutional change within plurinational states (see contributions by Tierney (chapter four) and Welikala (chapter six)).

One aim of the book is to encourage a conversation among these different spheres of work across the legal academy, because even within a common overarching discipline there has been a tendency to work in silos, which has prevented a full exchange of different and important insights. Building upon the deliberations of the symposium, therefore, the book provides an opportunity to re-think how our understanding of the nation and the state as legal concepts has changed within the doctrines and practices of international law; how these changes affect the ways in which we understand fundamental constitutional doctrines and traditional approaches to constitutional design, such as federalism; and how new challenges by increasingly sophisticated political actors at sub-state level confront the traditional underpinnings of both international law and constitutional law theory with radically new claims which, in particular, challenge the unitary conception of sovereignty which has undergirded traditional patterns of authority within the Westphalian model.

But it is also the case that a study confined within the legal academy can provide only a partial account of these issues. In my own work on sub-state nationalism I have discovered that legal scholars have much to learn from other disciplines. In attempting to approach the nationalism-globalisation nexus in a more holistic fashion, the book therefore also seeks an engagement between law and the social sciences—history, sociology, political science and political theory which offer the contextual story without which much of our theorising as lawyers can make little sense. To that end the book also brings together leading scholars from each of these core areas of enquiry.

Historians of nationalism are of course key to any attempt to situate the nation and the state as the central institutional planks of political modernity within current debates about how this role is changing. The book would have been incomplete without a reflection on the contribution offered by this school, and in particular the central role played by the LSE in this field (see the contribution by Breuilly (chapter two)). The sociology of nationalism is an area of scholarship which developed at the LSE, taking on particular significance since the 1960s, as sociology has helped describe and explain not only the survival of national identity but, more surprisingly, its consolidation, particularly at the sub-state level within democratic, liberal states. This work was the first to provide a more sophisticated explanation of this development, and to help us move away from stereotypes of nationalism, focused as these were in particular (and for no obvious reason) upon the sub-state variant, as inherently outmoded and backward-looking.

Again building upon these insights concerning social attachments, lawyers working in this area also have much to learn from political scientists (see contributions by Keating (chapter three) and Stjepanović (chapter five)). Scholars who have addressed the political dynamics of the new nationalism have found, in a similar way to the discoveries of political sociologists, that political actors adopting the nationalist mantle are often fully attuned to the globalising patterns which increasingly transform the canvas upon which political authority plays out.

There is much, therefore, that legal scholarship can learn from other disciplines: the historical origins and development of nationalism; the evolution of the nation-state as a functional resource; the continuing salience in sociological terms of national identity; and the political dynamics, strengths, weaknesses and agendas of nationalist political movements and parties. On this basis the book seeks to combine the various different voices from the legal academy with the related disciplines from the humanities and social sciences, including political theory (see Bellamy (chapter ten)), in order more comprehensively to illuminate the interface between studies of nationalism and globalisation today.

It is of course one thing to note what legal scholars can learn from other disciplines, but what are the particular insights which legal study brings to the table in a study of the current challenges facing nations and nationalism? Law and legality are central to nationalist political strategies because in these we see the crystallisation of political claims as constitutional claims. The normative arguments advanced by sub-state nationalists tend to be rooted in a sense that the hegemonic state has marginalised the position of sub-state nations. According to this narrative, this dominance has been further entrenched through patterns of constitutional authority which offer purported legal legitimacy to what is essentially a power imbalance. It is no surprise therefore that so much of the focus of nationalist disputes within states centres upon the nature of the constitution and arguments for its reform. Constitutionalism is also central to globalising projects since legal regulation has been fundamental to building structures that facilitate the economic and communicative patterns of global interaction. Again lawyers and legal theorists are in the vanguard of studies of globalisation because it has opened up a struggle not just for political power but also for the legal authority that will help consolidate this power.

The main methodological focus of the book, from the perspective of legal scholarship, is upon constitutional theory (notwithstanding the other valuable contributions from international law). There have in recent times been attempts to define what it is that is discrete about the nature of constitutional theory¹ and it is in exploring this further that we see how constitutional theory, as a particular area of enquiry, can help us draw connections between nationalism and globalisation. The discipline of constitutional theory is concerned with analysing and evaluating a particular area of social activity: the framing, founding, practice and changing of constitutions, operational through internationally comparable institutions and rules. This area of study combines empirical observation with a theoretical turn which brings to bear upon any set of constitutional arrangements a critical eye informed by the fundamental purposes which constitutions, and more broadly constitutionalism, is supposed to serve. In this context it can be said that constitutional law scholars engage with the connection between nationalism and globalisation as this interface plays out in the practice of constitutional politics. Constitutional theory does not offer a study in abstract first principles of (moral) normative theory, but rather meets politics in practice, in particular on the ground where politics transforms into constitutional practice.

A key part of the work of constitutional scholars is to respond to claims. Nationalism, particularly sub-state nationalism, manifests itself as a set of political claims, but as I say, these claims tend to have constitutional ambitions and these ambitions sooner or later have institutional implications. Whether it is a demand for a constitutional amendment, for a referendum, for statehood or for international recognition, the circle inevitably comes back to law as facilitator of political claims. In this way legal scholarship has much to learn from historians, sociologists and political scientists who together frame where these claims come from and how they are to be understood in wider societal context.

Building upon this, law can then help to explain the terrain within which these claims are turned into legal and constitutional practice. For example, when a group claims a right to self-determination, we know that the political rhetoric this produces also operates within a system of international law that has sought to circumscribe tightly the meaning of this right and the subjects to whom it applies. When a group claims constitutional rights, such as the right to stage a referendum, again we should be able to illuminate the constitutional terrain upon which this claim is made and its consistency with existing constitutional law and practice. Comparative law can also be informative as we look to a range of constitutional orders where similar issues have arisen in the past. In short, legal scholarship in being responsive to political claims must build upon the insights of others, but in doing so it also offers a crucial piece of the jigsaw in demonstrating whether, and if so how, political claims can be meaningfully institutionalised within the current, and changing, normative environment of state constitutional law and supra-state constitutional orders. It is to help build such a holistic picture in the current transformations of nationalism and the nation-state that this book aspires.

II. Structure of the Book

The book also aims to offer legal scholars insights into some of the deeper undercurrents which will help us understand the ‘why questions’ (why is the nation-state under challenge from below? why are global normative orders emerging?) as well as the ‘how questions’ (how can or should each of these processes be met by institutional ordering?), while at the same time offering legal insights to other disciplines and thereby informing these of the capacity which the fluctuating legal environment leaves open for nations and nationalist movements in their interaction with forces of institutional, political and economic globalisation. The book is laid out in two parts, each of these composed of two sections. Part One seeks to map the terrain of nationalism and globalisation, assessing the persistent salience of nationalist movements in social development and considering their impact upon the constitutional state.

It opens with two essays which approach the global context within which constitutional and nationalism theories play out today. John Breuilly has spent his career studying the historical trajectory of nationalism as a political project. In his chapter he offers a broad account of how nationalism has been theorised in recent times, setting out the key debates in the development of nationalism studies and then drawing out key comparisons between theories of nationalism and contemporary thinking about globalisation. His focus is largely upon the role of actors, and in particular of lawyers, in seminal historical periods of nation-building and globalisation. With lawyers as his case study he draws links and identifies common trajectories across time with regard to the role law has played in nation-building and in parallel processes of international and global interaction, in particular in the globalisation of the very concept of the nation-state. This leads him to conclude that there is an important contrast between the age of nation-building in the nineteenth century and our own time: in the earlier era nation-building and global interactions operated in tandem—emerging nation-states supported by a nascent international state system. But this he concludes is no longer the case. What is new and unsettling about our age is that while, in Breuilly’s view, we are heading back to a world of hegemons comparable to the imperial age, the state system itself is now unsettled; instead of the stability of the state system we now find ‘an unstable combination of ethnonationalist and supra-state challenges to the nation-state order’ which provides a new context within which such hegemonic power struggles will play out. Powerful states still exist but they do so in a system where the very salience of the state as the locus of political power is being challenged from above and below.

Michael Keating’s approach, based upon empirical social science, draws similar conclusions to those of Breuilly, although his case study and methodology are very different. He centres upon the distinction between the terms ‘nation’ and ‘state’, recognising that the term nation is in definitional terms ‘slippery and often subjective’. His approach also echoes Breuilly’s in arguing that the nation is neither an entirely objective nor an entirely subjective category, but rather is ‘an inter-subjective set of understandings and meanings, which emerges from social and political interaction in specific circumstances’. One of the challenges of our time is to recognise that national sovereignty and territorial integrity are still salient political subjects but that both are also being transformed by the regional and global environments within which they operate. Territory as a physical space for social, economic and political processes remains central to political claims, but these are no longer restricted by an exclusively state-centred focus. It is in this context that Keating addresses the evolving constitutional trajectories of sub-state nations in states such as the UK, Belgium, Canada and Spain, challenging some of the myths which often accompany the new nationalism. In addressing the new and unsettled environment which Breuilly identifies, he calls for an ‘unbundling of territory’, rejecting the view of territory ‘as closed space belonging to one integrated national-institutional community or another’. What is needed in fact is a ‘constitutional pluralism in which competing claims to sovereignty can be managed, as long as the working of government is not made impossible’.

In the second section of Part One, essays by Stjepanović, Tierney and Welikala in some sense take up this challenge, deploying the idea of constitutional pluralism and using this in exploring the interaction of constitutional globalisation on the one hand and the ways in which the nature of the constitutional state, particularly the plurinational state, is changing to meet this challenge.

Tierney addresses how the rise of sub-state nationalism in the Western world since the 1960s challenges from below the modern model of the state. The focus of much of the attention given to globalisation by constitutional theorists has been upon constitutional reordering above the level of the state. But Tierney, like Keating, is also drawn by the radical and innovative challenges not only to particular constitutions but also to the very idea of constitutionalism presented by sub-state nationalist constitutional projects. Nationalist movements present adaptable political strategies which rather than being at odds with a globalising world in which the state is itself arguably losing traction, in fact present ways in which to fashion new constitutional orders which might offer a more suitable fit for a globalising era than do certain increasingly outmoded versions of the purportedly sovereign modern state. That said, Tierney is sceptical of the idea that the state itself is in fact in terminal decline. Territory, as Keating points out, remains a vital political resource. This is also backed up by an international legal system which remains highly supportive of the prerogatives of states. If sub-state nationalist movements focus upon secession rather than a radical internal constitutional reordering of the polity, this in some cases owes as much to the resistance of international law to give meaningful international recognition to non-state territories as it does to the resistance of states to radical constitutional change.

Dejan Stjepanović studies the constitutional changes which have been applied to the troubled Balkan region in the past two decades. It is in the collapsing Yugoslavia that so many of the problems of national struggle are to be found, but it is also here that some of the most imaginative responses to these issues have emerged since the mid-1990s. In his chapter Stjepanović examines some less well-trodden territorial developments in the post-Yugoslav space and in doing so identifies innovative interactions between globalisation, theories of nationalism and what we might call a ‘new regionalism’. In particular, echoing Keating’s work, he uses the political and constitutional history of the historic regions of Dalmatia and Istria (Croatia) and Vojvodina (Serbia) to argue that there is not, a clear, categorical distinction between nationalism and regionalism in theory or, in these areas at least, in practice. As ideologies and political projects nationalism and regionalism have a lot in common. Taking the regions of Croatia and Serbia that are the focus of his chapter, he argues that these contradict the ‘teleology of total exit’ thesis, which suggests that granting autonomy to ethnic regions is always a slippery slope to secession. Instead, he traces the development of regional dynamics in these regions, signifying how territory has been used far more instrumentally as a concept and as a resource (again per Keating) than might have been expected by traditional understandings of nationalist dynamics. He argues that these examples show how, in a globalising environment, territory is not ‘bounded and exclusive’ but is instead a ‘political and social construct’, within which sub-state territories will seek to interact with state and supra-state legal orders in instrumental ways. The consequence is that we see a fluid crossover from sub-state nationalism to plurinational regionalism, which for Stjepanović offers an alternative form of government compatible with a ‘globalised integrationist setting’. This seems to be an example in practice of Breuilly’s notion that in a world of powerful states, more assertive and better equipped regions, and more powerful international organisations and constitutional orders, serve to unsettle any simplistic idea that we have merely returned to a world of imperial hegemons, or that nationalism has lost its resilience as an adaptable focus for identity and loyalty within territorial polities whether at state or sub-state levels.

Asanga Welikala in his chapter reminds us that much of the focus upon resilient sub-state nationalism and instrumentalist ‘nationalist-regionalism’ has been upon Europe. The work of Keating, Tierney and Stjepanović has centred largely upon a liberal, democrat...

Table of contents

• Cover
• Title Page
• Table of Contents
• List of Contributors
• 1. Nationalism and Globalisation: New Settings, New Challenges
• Part 1: Nationalism and Globalisation: Mapping the Terrain
• Part 2: Constitutional Globalisation: The Settings for National Pluralism
• Bibliography
• Index