Nação 3 Fitzpatrick, P. (2014)

CHAPTER 4
NATIONALISM
We know what it is when you do not ask us, wt we

cannot very quickly explain or define it.
(Bagehot n.d.: 20-1)
THEABUNDANCEOFFMLURE
Given the extravagant prospectus outlined at the end of the last chapter,
there should be something reassuringly resolute to begin this one;
instead, it will plunge immediately into the irresolution of nation. That
irresolution, however, provides constituent terms of nation's 'being'
and it is those same terms which match those of law and effect a
complementary relation between the two. If in the 'age of codes and
constitutions' - the phrase is Foucault's (1981: 89) - law becomes
illimitably self-generating, if it then allows of nothing before it, still it
has to be particularly located so as to be determined and determining.
It has, that is, to be of a contained place, yet not be contained by it. This
impossible combination is accommodated by itself becoming con-
stituent of the nation. The resulting irresolution 'in' nation is played
out in terms of nation's being both particularly placed and univers-
ally uncontained. As with occidental law, it is in being set against
certain alterities that nation assumes an ostensible coherence and its
irresolution is putatively resolved - 'resolved, that is to say buried,
dissimulated, repressed' (Derrida 1992a: 23).
Yet if nation, after a fashion, provides a place accommodating law,
then law brings the same fashion to bear in filling the place of nation.
There is a mutual constituting in and between nation and law. The new
'nation-state' - the state carrying a nationalism which forms along with
modern legality - is in various idioms a 'state of law'. Law is continually
formative of nation, linking and mediating between its universal and
particular dimensions, between its claim to inclusiveness and its claim
to exclusiveness. In so doing, law effects and affirms an hierarchical
and homogenizing authority, eliminating or subordinating all that
would counter the nation-state in coming between it and its subject, the
modern citizen - another player to be brought onto the stage. This
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INSTANTIATION
monadic assertion of nation through law comes about not because

nation achieves an ultimately assured identity but precisely because it
does not - because, that is, it is always unresolved in-between the
universal and the particular and always 'becoming' other than what it is.
Nation 'in itself can neither be secured in the integral recognition of
diversity - in the divisive, detailed and unruly life of its particularity -
nor be based in its deracinated, boundless universality. Of late, this
modernist scheme has been challenged by the European Community
and the European Union - I will stretch the latter term to cover both -
and the chapter ends by taking the competing nationalisms and
competing legalities within the European Union as a 'case' of nation's
being in-between its particular and universal dimensions, a case which is
then extrapolated in the remaining chapters onto the wider scenes of
imperialism and globalism.
Given this intrinsic irresolution, the proliferation of accounts evi-
dencing the impossibility of the nation, its elusiveness and intractability,
may be less surprising than it is usually taken to be. The observation of
nation's purely invented, imagined or fantastic character seems con-
firmed in the failure of constant attempts to discover what it tangibly
may be or what tangibly may cause it to be. Nation seems fated to
remain tied to the very criteria - of common language, territory, history,
and so on - which repeatedly fail to mark it definitively (see Hobsbawm
1992a: 11). Renan 'summed up' the message of his celebrated lecture of
1882 on 'What is a Nation?' by declaring that national 'man is a slave
neither of his race nor his language, nor of his religion, nor of the
course of rivers nor of the direction taken by mountain chains' (Renan
1990: 20). And Hobsbawm concentrated the resurgent writings on
nationalism of the 1980s in this way:
Most of this literature has turned on the question: What is a (or the)
nation? For the chief characteristic of this way of classifying groups of
human beings is that, in spite of the claims of those who belong to it that
it is in some ways primary and fundamental for the social existence,
or even the individual identification, of its members, no satisfactory
criterion can be discovered for deciding which of the many human
collectivities should be labelled in this way.
(Hobsbawm 1992a: 5)
The solidity of nation is also beset by its radical variety and its
inconstancy. The 'historical situations' giving rise to nations are, says
Balibar, 'antithetical' (Balibar 1991: 45). Different nations emerge out
of different situations. And even as emerged, the nation retains its
evasiveness: 'national identification and what it is believed to imply, can
change and shift in time, even in the course of quite short periods'
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(Hobsbawm 1992a: 11). Nation adapts to a seemingly infinite diversity

of purposes, histories, ideologies and sustaining myths. Yet, with all
its mutability, we may ask of the nation, 'how come it appears so
immutable?' (Taussig 1993: xvi). The constancy and the potency of
nation and its massive existential purchase remain manifest, not least in
the persistent academic efforts to explain it. This concern most often
culminates in a mix of lurid metaphor and exasperation. The
introduction to a recent survey of nationalism concludes that 'we live in
a world, like it or not, in which the national dimension of history haunts
us in ways in [from?] which we are finding there is no easy escape'
(Teich and Porter 1993: xix). Another begins by setting the 'inter-
national character' of 'the burning problems of our times', and their
need for resolution at that level, against 'a spectacular tide of national-
ism ... rising, in Europe and on a world scale, submerging everything
on its way' (Lowy 1993: 125). And, in terms that have recently come to
be incessant, Smith says of the potent 'signs and explanations' of the
nation's being that' ... they have capacities for generating emotion in
successive generations, [and] they possess explosive power that goes far
beyond the "rational" uses which elites and social scientists deem
appropriate' (Smith 1986: 201).
It is to some such enduring force of primordial and popular longing
that the recent profusion of nations and nationalist assertion is usually
attributed. The collapse of containing systems of rule, so it is said,
enables suppressed atavistic national and ethnic identities to surge forth
and found claims to a revived nationhood. With the break-up of the
Soviet Union, for example, the aftermath of empire seems to sustain its
record as the most fecund begetter of nation. Yet something like the
opposite is just as readily affirmed and it is no more complimentary to
the populace. The assertion or reassertion of the people is essentially
a matter of manipulation by a calculating elite which harnesses the
universalist, transforming thrust of nationalism. The very primordium,
that which identifies and remains 'before' the people, is an elite inven-
tion of obvious self-promotion. Origins and histories of a nation thence
become varying constructions which adapt to the varying occupants of
elite positions (Laclau 1977: 160-1).
There would seem to be limits to nation's universalist thrust, however.
Nation and nationalism are nowadays being outflanked and under-
mined, so it is said, by a global economy, global culture, and by global
legal and administrative authorities. Even that last and essential bastion
of nation, the fastness of the political, is being taken away through a
vesting of political sovereignty in supranational sites, most notably in
the European Union. And yet Dunn's survey of such close-to-standard
claims finds that it is less than 'plausible' to say 'that the practical
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INSTANTIATION
capabilities of states today in any general fashion fall short of those of

their predecessors' (Dunn 1995: 4).
In all, nation seems unable to do without the very attributes that fail
to mark it assuredly or unequivocally. It appears to be uncertain,
precarious and declining yet it also retains a potent and persistent
presence. No wonder there is by now something like a Library of Babel
devoted to its elucidation. How can one, then, say anything preliminary
but pertinent about nation that is not overly tendentious? The strategy
adopted here resorts to texts as telling instances, using them as recent
concentrations of persistent issues which modern debates about nation
seem unable to resolve or avoid. I shall consider three such texts of
this kind, each providing an influential answer to the question of what
nation may be, and I will then build on the productive failures of those
answers. Summarily, the first two answers would render nation as in-
tensely particular or as exuberantly universal, but each of these
dimensions of nation is shown to invoke and depend on the other. The
third answer would seek to fuse both dimensions in a transcendent
modernism but succeeds only in indicating how they subsist conjointly
in the negation of alterities.
THE IMPOSSIBILITY OF NATION
The first of these attempts to contain nation is provided by Anthony

Smith's persistent search for 'the ethnic origins of nations', where he
claims to discover an enduring' ethnie' which provides the foundation or
core of the modern nation and 'determines', to a considerable degree,
the nature and limits of nationalisms and modern nations (Smith 1986:
17-18,212-13). Smith's main animus is the assertion of modernists that
the nation is a recent and an elite invention. Gellner provides the most
outrageous instance: the nation's particular self-image, and this would
include its claimed ethnic origins, is for the most part illusory; it is an
invention not just made up 'largely' of 'shreds and patches' but one
where 'any old shred and patch would do' (Gellner 1983: 56, 125).
The ethnic element would endow nation with a definitive solidity but
fails to do so. The fact that ethnicity has proved every bit as elusive as
nation is unpropitious but largely unobserved (cE. Epstein 1978; Smith
1986: 179). Even if this difficulty is ignored, the ethnic element does not
seem able to say anything definitive or distinctive about the nation's
attributes. Smith's ethnie characterizes numerous groupings, and very
few of these become nations. And even if ethnie were exclusive to
national groups, it would not account for those numerous entities
which are usually called nations but do not have apt ethnic origins in
Smith's terms (cf. Smith 1986: 7). On this score Smith himself is less
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NATIONALISM
than unshakeable. He recognizes that there are different sorts of

nations where other originating factors besides the ethnic exist and
even predominate. These would include more universalist legal and
civic factors which are then seen as mixed with the ethnic in concrete
instances of nation (Smith 1986: 134-8; 1991: 12-15). Once the pos-
sibility of a mix with what is beyond ethnie is admitted, however, we are
no longer in the domain of this singular determinant and its assured
particularity.
In the end Smith seems to accept the primacy of the very modernist
problematic he set out so resolutely to counter. He recognizes that elite
nationalists shape and select the attributes of the nation and its history,
even if their use of the ethnic element does restrict their range of
choice since ethniecan maintain its own reality. Yet Smith would go even
further along this route and acknowledge that ethnie may not have its
own prior reality and can be invented (Smith 1986: 18, 177-8, 208; cf.
Hobsbawm 1992a: 102 and 1992b: 4). Indeed, what Smith considers to
be ultimately distinctive of the ethnic contribution to nation is its
provision of myths of belonging. This turns out to be an entirely
contingent process, since an alternative to the nation's taking-over
many of the 'myths, memories and symbols ... of pre-existing ethnie' is to
'invent ones of its own' (Smith 1986: 152). Taking-over myths of ethnie
cannot, in any case, be separated from invention. Keeping a thing
apparently the same in the face of all that would challenge and change
it is an inventive process. Once again we are impelled beyond the
supposedly solid particularity of ethnie.
It by no means follows that Smith should be emulated and the terrain
eventually ceded to the modernists. They do contribute their own
intriguing failure. Gellner remains the irresistible exemplar (Gellner
1983). The nation, for Gellner, is the product of the modern 'age of
nationalism', an age typified by a universalizing historical force that
produces industrial society and the homogenized or 'gelded' beings
that inhabit it (Gellner 1983: 36--7, 55). Nation is thence set against all
that is particular and primordial. It must follow, in Gellner's scheme,
that the specific' cultural shreds and patches used by nationalism' , or by
its elite agents, to create nation are quite contingent (Gellner 1983: 56).
Yet it cannot, of course, 'follow that the principle of nationalism itself, as
opposed to the avatars it happens to pick up for its incarnations, is itself
in the least contingent and accidental' (Gellner 1983: 56). Gellner
would, on the contrary, reveal 'modern nationalism ... , in its general
forms if not in its detail, to be a necessity' (Gellner 1983: 56, 129).
The huge difficulty with all this is why, 'as the tidal wave of modern-
ization sweeps the world', it should stop short in its universalizing
thrust at something less, at the particular place occupied by the nation
ll5
INSTANTIATION
(Gellner 1983: 112, for the quotation). It is not as if the nation for
Gellner is the beleaguered residue from a previous age, one now being
progressively diminished in a time contrary to it. It is, rather, the
fulsome, even necessary outcome and embodiment of a modernizing
historical force. This is established by Gellner simply in a functionalist
assertion of the case. The nation is constituted as integrally functional
to the universalizing and homogenizing thrust of modernity. As with all
functionalisms, the entity formed is created and sustained in the effec-
tiveness of the function. If that effectiveness is uncertain, so must be the
integrity of what is formed. It is at the very least uncertain whether
nationalism, or modernization for that matter, is simply homogenizing
and universalizing, rather than deeply divisive and particularizing.
Gellner does admittedly attempt to shore up his functionalism with
historical illustrations but these have the air of 'shreds and patches'
about them, covering as they do only some nationalisms and excluding
others (see Amason 1990: 214-15). In the end universalist nationalism
is presented by Gellner as an 'unutterably profound break' with the
status-ridden and pathetically particular world that preceded it: univer-
salist nationalism is, in short, ultimately self-constituted in a dependent
opposition to that world or, rather, in opposition to a mythic portrayal
of some such world (Gellner 1983: 57, 125). As with Smith's myths of
ethnie, the ultimate support for Gellner's scheme of the nation turns out
to be mythic. The preferred mythos is even roughly the same: Smith's
version identifies nation with the mythic entity, Gellner constitutes
nation in opposition to it.
These telling engagements with nation and its identity have left us so
far with two evident lines of irresolution - with Gellner following the
universal trajectory and Smith the particular. But each trajectory failed
in its own terms and, inescapably it would seem, evoked the other. This
outcome begins to replicate the lines of analysis in part I and further
elements of that analysis can be mixed into the positioning of nation via
what is perhaps its most cited recent rendition, Benedict Anderson's
depiction of nation as an 'imagined community' (Anderson 1991).
Anderson wants to show that nation is not to be found in the truth or
falsity of its concrete attributes. It is, rather, nation because of 'the style
in which [it is] imagined' (Anderson 1991: 6). This does raise a prob-
lem of demarcation because nation, he readily concedes, is not the only
imagined community: 'in fact communities larger than primordial
villages offace-to-face contact (and perhaps even these) are imagined'
(Anderson 1991: 6). So here, right at the outset, an ambivalence is
introduced, one from which everything else will follow (cf. Perrin
1999). The un imagined community exists but, parenthetically, may
not. The residual uncertainty over its existence is a testament to its
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NATIONALISM
impossibility. This is a community of complete and palpable com-

monality, 'a community immediately present to itself, a 'transparent
proximity in the face-to-face of countenances' (Derrida 1976: 136, 138).
This is what Tonnies called the 'the community of fate', the natural
community of an unreflecting communal stolidity starkly set against
cultural invention (see Mitchell 1968: 84 and Leach 1982: 38; cf.
Benjamin 1979: 127).
Despite the uncertainty of its existence, this quality of self-present,
unmediated community is, as it were, carried forward so as to constitute
modern, wholly imagined community in opposition to it. This is a
telling of what has become a standard story, the operative element
being a transformation of consciousness. Seeing nation as ultimately
founded in consciousness is, for a start, not exactly an unusual per-
ception (e.g. Renan 1990: 20; cf. Zizek 1993: 202). It is hardly less
unusual to discover, as Anderson does, that the spread of capitalism and
the pervasion of the new mass media intensity and homogenize the
imagining of connections between people (e.g. Giddens 1981: chapter
1).1 The modern nation exists as completely contemporary. There is
an elevation here of a temporal simultaneity in which time becomes
'homogeneous, empty'.2 The depiction of a relation between people
has no longer to be mediated through their inescapable position within
more palpable genealogical, religious or other encompassing systems.
People can be seen simply as being in 'societies' - seemingly the
deracinated, perfected type of modern society departed from in that
section of my chapter 2 on 'societies' (Anderson 1991: 25-6). Anderson
instances 'an American' who will know only a few of 'his ... fellow
Americans' and have 'no idea of what they are up to at anyone time.
But he has complete confidence in their steady, anonymous, simul-
taneous activity' (Anderson 1991: 26). An alarming confidence, a
strangely homogeneous 'America'. But, of course, such homogeneity
need not now exist palpably face-to-face, in fact. It is imagined.
At a minimum, however, such imaginings must commonly exist
amongst the people of the nation. That, in Anderson's scheme, is the
condition for the nation distinctively to be as an 'imagined community'
or 'society'. However, and as we saw in the section on 'societies', it is
impossible to conceive of society, or of community in terms of some
complete commonality. Will something less than complete serve as
well? Could not the ecstatic vision of 'America' simply be shared by
those 'at home' with it? Presumably not, because this would inevitably
introduce further and necessary factors besides the mere impalpable
imagining and thereby reveal it as inadequate. Indeed, a nation is widely
and readily recognized as existing even with the manifest absence of a
commonality of consciousness. The un surpassable example would be
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INSTANTIATION
France, the great begetter of nationalism and of the universal nation,

where the obdurate regional particularism of the majority of its
inhabitants, their abject failure to think of themselves as 'Frenchmen',
persisted until quite recently (Weber 1979).3 Whatever the cohering
'imagination' that may have existed here, it was obviously not demotic.
If anything, it would have been an elite and official imagination, and
even that probably did not exist in the singular.
Anderson does, however, implicitly claim to achieve the impossible
and provide a palpable position apart - a position from which this
being-in-common of community can be conceived. This solution comes
by way of the novel as the fictional form of modernity. The universalist
'omniscient readers' of a novel imagine forth a world in which its
characters exist within the contemporaneity of a community even when
they are not specifically aware of each other (Anderson 1991: 26). In
this world, fictional characters are made to inhabit something like real
societies - 'sociological entities of such firm and stable reality that their
members ... can even be described as passing each other on the street
without ever becoming acquainted, and still be connected' (Anderson
1991: 25). There is here a presiding element of homogenizing con-
nection in which everything is rendered in relation and in common
(Anderson 1991: 26). This is the specular imagining 'within' nation of
the communities in 'primordial villages' against which Anderson con-
stitutes the imagined nation 'in the first place' (Anderson 1991: 6).
Inevitably this position is itself particularly contained. It is with
modernity, as Nancy notes, that literature seems 'devoted to com-
municate the common and to offer itself thus as its own space, as the
in and the between of the common' (Nancy 1992: 386 - his emphasis;
cf. Derrida 1976: 160). Yet, in this communication, literature is not,
and cannot, simply be blank and innocent. Anderson's resort to the
novel is already complicit:
The novel is an incorporative, quasi-encyclopedic cultural form. Packed
into it are both a highly regulated plot mechanism and an entire system of
social reference that depends on the existing institutions of bourgeois
society, their authority and power. ... The novel is ... a concretely
historical narrative shaped by the real history of real nations. ... The
appropriation of history, the historicization of the past, the narrativ-
ization of society, all of which give the novel its force, include the
accumulation and differentiation of social space, space to be used for
social purposes.
(Said 1993: 84,92,93)
It is, then, hardly surprising that Anderson's lengthy engagement with
a novelistic reality should happily provide ground for national com-
munity when it was the product of nation and its purposes.
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NATIONALISM
The universalist, boundless imagination, ranging beyond all ties,

is, then, quite particularly bounded. It could not be otherwise if it is
to be specifically effective. For Anderson, as we saw, all communities
are imagined, with the possible and dangerous exception of those
'primordial villages of face-to-face contact' (Anderson 1991: 6). The
nation is distinct as one imagined community because its modes and
contexts of imagination are tied to nation - to a national 'style' of
imagining (Anderson 1991: 6). A national limit is simply one amongst
many that the imagination can seize upon. A modern community can,
for example, be just as readily imagined within and against the nation or
outside of and enveloping it. Nor does 'homogeneous empty time'
seem to be particularly definitive of the nation. It would seem, rather, to
extend beyond the nation and become limitless (and the project of
modernity would settle for nothing less in its overweening aspiration).
When, on the contrary, there are various 'limited imaginings', which is
how Anderson would describe nations, time must, or must also, become
heterogenous and full, overflowing with the profuse and particular
identities of the various nations (cE. Anderson 1991: 7).
The vacuity of plain imagining is filled, however, because the
capacious imagination can ascribe whatever it wants to nation. Nation
can be imagined as limited and as sovereign. And it can be imagined as
the primordium of community because of the possibility of imagining
being-in-common as 'firm and stable reality', or because 'the nation is
always conceived as a deep, horizontal comradeship' (Anderson 1991:
7, 25). So, it would seem that the community of dense 'face-to-face
contact' does not simply and 'particularistically' impel nation as its
contrary into an existence of secular transcendence (cf. Anderson 1991:
6). This community, or something that looks very much like it, can also
return as 'a deep, horizontal comradeship' in which people have an
intimate if imagined regard for all other members of the national
community (Anderson 1991: 7, 25-6). Using the terms offered in the
section on 'alterities' in chapter 2, here is a constituent moment of
alterity in which nation forms through the exclusion of that which yet
remains integral to it. Anderson has, however, obliquely provided us
here with only half the story. The transcendent, universalist imagin-
ing of nation which can extend to anything had always, as we saw, to
return to some particular palpability. It could not purely 'be' in itself.
Furthermore, and going beyond Anderson's 'imagined' frame of
reference now, the nation is not imagined as imagined. It is grounded
in the ostensible quiddity of its territory. So, the nation is not only
transcendently universal in its opposition to the all-too-solid scene
of 'primordial villages', it and its peoples assume solidity in their
opposition to that same scene - only now the scene is visited instead
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INSTANTIATION
with malign indetermination - and that assumption of solidity forms

a large part of the picture presented in the next chapter dealing
with imperialism.
In short, Smith's and Gellner's accounts identify nation's universal
and particular dimensions and, somewhat unwittingly, show how these
evoke and implicate each other. Then Anderson's account serves to
indicate not only how nation fractures between these dimensions but
also how, in their very opposition, they are constituent of nation. I will
now try to show how this impossible conjunction 'in' nation is made
possible.
THE POSSIBILITY OF NATION

To begin with the nation's 'capital paradox of universality' (Derrida
1992b: 71), it is not unusual for nations to be associated with uni-
versal attributes. Revolutionary France, as 'the great universal nation',
elevated 'the universality of free citizenship' and, integrally with that,
the idea of human rights, something of all this persisting even when it
became clear that the nation was to be territorially constricted (Palmer
1959: 500; Kelley 1984: 14-15 chapter 2). In Corwin's elegant history
of origins, the constitution of the United States is revealed as a fusion of
the sovereignty of a particular people with their embodying universal
rights enshrined in a transcendent legality (Corwin 1928). Adherence
to 'human' rights is by now the pervasive criteria by which a nation's
proximity to the horizon of the universal may be gauged. And if the
once common claim that a nation's law embodies universal reason is
now less evident, there remains still the integral affinity of some peoples
with legality - a not uncommon English boast (see Skillen 1977: 91).
Two more situated examples. 'The true "French ideology''', Balibar
remarks, lies 'in the idea that the culture of the "land of the Rights
of Man" has been entrusted with a universal mission to educate the
human race' (Balibar 1991: 24); and French culture, Derrida remarks,
finds itself 'responsible for the universal: and for human rights and
international law' (Derrida 1992a: 52). Certain Germanic claims to
philosophy and progress can, as Derrida reminds us, be seen in that
way (Derrida 1989a: 70; 1992c: 11-16).4 So, this universalism is often
accompanied by the assumption of a responsibility, a 'burden' to extend
its manifest qualities beyond the bounds of the particular nation. In this
way the particularity of nation would bring the universal to itself.
The other way of purportedly achieving this. is by resort to exem-
plarity, the particular nation becoming elevated as the exemplar of the
universal. 'Nationalism and cosmopolitanism have always gotten along
well together, as paradoxical as this may seem' (Derrida 1992b: 48). The
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Enlightenment, or modernization, or material achievement may be

world projects, but the nation will still claim to manifest them
exceptionally or to endow them with particular origins or necessary
supplements. The very orientation to the universal can be a supremely
national characteristic. Thus, for Durkheim 'cosmopolitanism was a
trait of the French mind' (see Mitchell 1931: 97-8). This peculiar
concentration of universal claims in the nation is reflected in its
enormous existential reach. Being British and imperial was to be fused
with the very existence of the terraqueous globe (Arendt 1958: 209).
And quite apart from the explicitly imperial, the altruistic identification
of the British with the universal produces a self-effacement and the
common claim that they, or at least the English, are not nationalistic:
'the English, of any people in the universe, have the least of a national
character; unless this very singularity pass for such' (Hume 1888: 122).
These intimate identifications between nation and the universal mean
that human action and aspiration, even of the most expansive kind, can
be focused and made operative within the nation. In this way, nation
reproduces the dynamic and dimensions of the sacred explored in
chapter 2 under the head of 'transgressions'.
The presiding presence of the universal in nation has been and
remains, even if the terminology is now antique, the comity of
nations. 5 (The more recent variations on comity such as the com-
munity of nations, the international community and globalization will
be considered in the next two chapters.) This comity has served to mark
off a collectivity of certain nations as the exemplar of the universal, as
the origin of that which is becoming universal. Such a collectivity is
usually described as Western, even if its membership has become
somewhat more extensive than the term would import. The ambit of
exemplarity has expanded since the nineteenth century when it tended
to be confined to 'the Great Powers'. But geographical bounds are not
the prime consideration here. The impelling identity of that which
is exemplary and coming to be universal must be expansive and
indefinite. The comity of nations was typically delineated in terms that
could be discrete yet accommodating. Imperative components of its
identity have come and gone. They have included an indeterminate
density of intercourse between the nations, a common (Christian)
religion, a common commitment to the arts and sciences and, as
Voltaire discerned in the 'kind of great republic' that was Europe, 'the
same principles of public law and politics' (see Gong 1984: 46).
One identifying standard of comity has been constant and stood
for all the others, and that is the standard of civilization. The positive
content of this standard has been understandably elusive. Voltaire
provides a clue to its definitive content in remarking that the principles
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INSTANTIATION
associated with this great republic were 'unknown in the other parts of
the world' (see Gong 1984: 46). The civilization characteristic of nations
has been primally derived from opposition to the uncivilized. It was
created in the divide between 'the European family of nations' and
'savages or barbarians' who were beyond the pale of nationhood,
speech and history (Passavant 1999). This identity in negation enables
nation to exist as an abstractly universal, even transcendent entity.
Nation is dynamically homogenized and universal in being set against
and superseding specific forms of life that are fixedly and irredeem-
ably particular and heterogenous (Mauss 1969: 579-81). The very
specificity of these forms of life serves to traverse and actualize the non-
specificity or the emptiness of nation.
The great original statement of that line of thought is provided by
Hegel. I will rely on The Philosophy of History, with some support from his
other work, as another telling text, especially for its combining the
apotheosis of nation with those alterities considered in my second
chapter (Hegel 1956). The outlines of the story are well known. The
nation was a realization of the universal conceived as Spirit or, in a
variant of Spirit, as History. Spirit was simultaneously universal and
determinate and nations were Spirit made determinate and effective:
'around its throne they stand as the executors of its actualization and as
signs and ornaments of its grandeur' (Hegel 1952: 219 - para. 352). So,
although the nation was particular, it was identified with and even
identical to universal Spirit (Hegel 1956: 53, 75). Realization as the
nation cannot ultimately be separated from a universal Spirit which
itself comes to inhere in nation - 'and thus it becomes an object to
itself (Hegel 1956: 73).
This exalted resolution was processed in a history at once common-
place and grotesque. 6 'The Negro' and 'Mrica' provide the negative
starting point. 'The Negro' has no differentiated or even human being,
and is thus placed beyond the reach of Spirit and History:
The peculiarly Mrican character is difficult to comprehend, for the very
reason that in reference to it, we must quite give up the principle which
naturally accompanies all our ideas - the category of Universality. In
Negro life the characteristic point is the fact that consciousness has not
yet attained to the realization of any substantial objective existence - as
for example, God, or Law - in which the interest of man's volition is
involved and in which he realizes his own being .... The Negro ... exhibits
the natural man in his completely wild and untamed state. We must lay
aside all thought of reverence and morality - all that we call feeling - if
we would rightly comprehend him; there is nothing harmonious with
humanity to be found in this type of character.
(Hegel 1956: 93 - his emphasis)
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Although they are so comprehensively incapacitated, Hegel manages to

endow 'the Negro' with the ability to create their own utter separation
(Hegel 1956: 94-5). Likewise, Mrica had an 'isolated character': 'Mrica
proper, as far as History goes back, has remained - for all purposes of
connection with the rest of the World - shut up; it is the Gold-land
compressed within itself - the land of childhood, which lying beyond
the day of self-conscious history, is enveloped in the dark mantle of
Night' (Hegel 1956: 91). To be a little more exact, this lamentable
condition typifies sub-Saharan Mrica or 'Mrica proper - the Upland
almost entirely unknown to us' (Hegel 1956: 91). European coastal
colonizations were often haunted by the dangers and darkness of an
interior 'upland'. Hegel is empathic. The interior is full of 'ravenous
beasts' and 'snakes of all kinds'; its atmosphere is 'poisonous to
Europeans' (Hegel 1956: 91). Presumably this hinders the acquisition
of adequate knowledge but Hegel's being 'almost entirely' ignorant
on this score does not impede the story. Mrica simply must be set
beyond the reach of the universal so as to cast 'the Negro' in
insuperable alterity.
Hegel's ideas about 'the Negro' and Mrica are intriguingly in-
consistent, however. Mrica's isolation is not so chasmic. It consists
'essentially in its geographic location' (Hegel 1956: 91). The Negroes
are ... susceptible of European culture' (Hegel 1956: 82). The con-
tradiction (but not a dialectical one evidently) can be encapsulated in
Hegel's view of the 'Negro' slave. Being a slave exactly fits the 'Negro'
character because they are 'men' who have no consciousness of their
freedom and are 'objects of no value' (Hegel 1956: 95-6).7 Yet 'the
Negro' can profitably prosper in slavery because slavery brings them
into contact with European society whence they can 'mature' - 'the
gradual obliteration of slavery is therefore wiser and more equitable
than is sudden removal' (Hegel 1956: 99). The intimation of Mrica as
the home of a redeemable alterity, one susceptible of progressive
transformation, is connected to the main story in a thin thread tying
Mrica, or part of it, to history, 'the river region of the Nile, the only
valley-land of Mrica, and which is in connection with Asia' (Hegel 1956:
91; cf. Said 1993: 37).
This connection subsists, however, along with the insuperable alterity
- Egypt was also separable from 'Mrica proper' - and it is only 'with the
Oriental World', or with some of it, that we begin to enter the realm of
'History' and 'Light' and move beyond the thrall of 'myth' and beyond
Mrica's 'dark mantle of Night' (Hegel 1956: 91,103,111).8 So oriented,
as it were, we find that 'the Sun - the Light - rises in the East' and
'by the close of day man has erected a building constructed from his
own inner Sun', thus transcending reliance on outer myth (Hegel 1956:
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INSTANTIATION
103 - his emphasis). This crepuscular construct is found in the West

because, pursuing the happy solar metaphor, 'the History of the World
travels from East to West, for Europe is absolutely the end of History,
Asia the beginning' (Hegel 1956: 103). Various forms of human life are
prominent at various stages of the day, each being a manifestation of
Spirit superior to its predecessors, and this justified suppressing them
(e.g. Hegel 1952: 219 - para. 351). Although the nation is the culmin-
ation of this transition, nations themselves will differ in the degree to
which they are adequate realizations of it (Hegel 1952: 218 - para. 349;
1956: 105-10).
The pilulous plausibility of the specific nation consists, then, in its
being of a general and inexorable form produced by the thrust towards
the universal, and produced as the highest form of society, at least so far.
The 'universal standard itself was not seen in any fundamental way as
being alien to the national culture'; the coming of nationalism itself
was indicatively 'coeval with the birth of universal history' (Chatterjee
1986: 2). The nation was, for Durkheim, the most 'exalted' of human
groupings, one capable of realizing, at least eventually, all human ideals
(Durkheim 1957: 74-5; Mitchell 1931: 103, 106). Even the difference
and diversity of nations were conducive to universal progress: 'through
their various and often opposed powers, nations participate in the
common work of civilization; each sounds a note in the great concert
of humanity' (Renan 1990: 2). This common work extended to the
supposedly homogenizing effect of the nation within its territory - an
introversion of the thrust of the universal.
Both within and without, the particular universalism of the nation is
bolstered in the identification of nation with society itself, an identi-
fication which could be affirmed by matching the dimensions of nation
being extracted here with the dimensions of society found in the section
on societies in chapter 2. The correspondence is taken up in the next
section of this present chapter. Resorting for now to more established
indications, it is not only that the nation is seen as emerging out of and
taking on qualities of modern homogenized society - as Gellner, for
example, would have it (Gellner 1983); the very form of the 'nation-
state', reports Kohn, has come to be regarded as 'the indispensable
framework for all social, cultural, and economic activities' (Kohn 1968:
63). Amason elegantly wraps up both sides of the equation:
The particular characteristics of national integration have thus been too
systematically sublimated into a general model of social integration for
them to be thematized in their own right: and conversely, the general
theory of social integration has been too universally dominated by the
special case of the modern nation-state for a genuine comparative
perspective to develop.
(Amason 1990: 224)
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NATIONALISM
When other types of society are adverted to, they are rendered as
inadequate in the face of the achieved attributes of society embedded in
nation (cf. Torres and Milun 1995).
THE SAVAGE NATION
Indeed, coherence is sought in nation through the excluding of what is

thus 'other' to it. Balibar describes this in racial terms as a division of
humanity 'into two main groups, the one assumed to be universalistic
and progressive, the other supposed irremediably particularistic and
primitive', and he adds that this division has been succeeded by 'barely
reworked variants', a phrase I will not try to resist (Balibar 1991: 25).
Those variants have had to accommodate the coming into nationhood
of many peoples in the excluded regions. Distinctions are now drawn
between nations themselves in such terms as their development and
underdevelopment, or their modernity and backwardness. These dis-
tinctions are confirmed by their acceptance within 'new' nations as
ultimate performative criteria.
The comity of nations was both the instrument and effect of a
projected European appropriation of the world. It was initiated and
sustained in the suppression of peoples marked in their very being as
inimical to that enterprise and to the universal and commensurate
reality it represented. With the world thus made one, those who still
existed outside its ambient truth could be brought to conform to that
truth, or used to achieve it, or be eliminated. Such a division was made
manifest in the invention of racism. The accompanying invention of
appropriate attributes of the excluded provided reference points or
negative exemplars in the creation of European identity, including the
identity of the European nation. As qualities of European civilization,
the universal and legal, the ordered, the dynamic and progressive are all
set against characters projected from the European onto its other - the
particular and lawless, the chaotic, static and backward. These projected
characters remain in the site of their generation, within European
identity, where they are recognized as having been suppressed but as
still dangerous. The possibility of reversion has to be constantly guarded
against and the standards of civilization thus maintained. This whole
dynamic of identity is contained in myths which invert its impetus by
locating origins and their continuing force in the other and in its pro-
gressive supersession.
The doyen of International Law once conceded that in the devel-
opment of his subject old markers of comity, such as the common
Christianity of nations, 'could no longer be taken for granted' as
a foundation once the 'European Family of Nations developed into
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INSTANTIATION
a world society' (see Gong, quoting Schwarzenberger, 1984: 88). New

encompassing imperatives, pervasive and 'barely reworked variants',
have been provided by development or modernity, or some modifi-
cation of these. Zizek provides a cogent application to the current
scene:
Hegel said that the moment of victory of a political force is the very
moment of its splitting: the triumphant liberal-democratic 'new world
order' is more and more marked by a frontier separating its 'inside' from
its 'outside' - a frontier between those who succeed to remain 'within'
(the 'developed', those to whom the rules of human rights, social security,
etc., apply), and the others, the excluded (the main concern of the
'developed' apropos of them isoto contain their explosive potential, even
if the price to be paid for it is the neglect of the elementary democratic
principles) .
(Zizek 1992a: 34)
To take one of these indicators of salvation as an example, the 'new'
standard of human rights in Gong's view now occupies the ground of
the 'old' standard of civilization (Gong 1984: 91). The genealogy of
human rights can be deeper than this would suggest. As we saw earlier,
'the "land of the Rights of Man" has been entrusted with a universal
mission to educate the human race' (Balibar 1991: 24). France now
shares with 'Europe' a responsibility to incukate, to implement and to
enforce the 'new' standard, a task that is conveniently 'always at once
urgent and infinite' (Derrida 1992b: 52). Another 'barely reworked
variant' has been culture. At least in its more public and official guises,
xenophobia is no longer able, so it is often said, to take the form of an
explicit racism. It now takes distinct form as 'culture', of a kind. Yet this
culture still maintains the difference between nation and its other. Gilroy,
amongst others, would see it as 'cultural racism', wherein 'biological
hierarchy' may seem in a way to be displaced but there are instead 'new,
cultural definitions of "race" which are just as intractable' (Gilroy 1987:
60-1). The contrary case has been put by Stokke. She finds that there
are in Europe 'new rhetorics of exclusion' founded in a 'cultural
fundamentalism' which is distinct from and even displaces a politically
discredited racism, and nation thence becomes the locus of culture
(Stokke 1995). The exclusionary and constituent effect remains the
same, however.9
The terms on which the excluded may seek to cross the frontier, be
'recognized' and join the comity of nations, effect a closure around
nation, confirm its universal reach, and deny any intrinsic or primary
need for it to relate. Those terms are secured in the pervasion of nation,
something which leaves 'no space for internationalism' or, rather, leaves
no space that is not also a national space (Bauman 1989: 53). So, being
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NATIONALISM
pervasive and ordained in its defining project, the comity of nations

may be joined only on the terms that constitute it. It is not possible to
contain those terms, and thence modify or replace them in something
like a negotiated entry of new nations. Nationalism operates here as a
neo-imperialism. It even provides, or seeks to provide, the only mode
of 'liberation' from imperialism as direct rule. Although European
nationalism made exclusive claims to the universal, the very universality
of those claims meant that they had also to be expansive and subject to
appropriation by others.
Nationalism could then be and was turned around in the cause of
national liberation, as it was indicatively called. Out of this process
proto-national and national entities were created. The entity known as
India was shaped, as Prakash so deftly shows, in 'the assumption that
India was an undivided subject, that is, that it possessed a unitary self
and a singular will that arose from its essence and was capable of
autonomy and sovereignty' (Prakash 1990: 389). Even the resort to
endogenous histories was shaped by nation with a seeming inevit-
ability. Hence, the forces of universalism and development located by
nationalists in ancient India have been made compatible with the
occiden tal type of nation (see Chatterjee 1986: chapter 6). It is, of
course, usual to derive this particular 'cunning' of nation from 'the
national bourgeoisies and their specialized elite, ... [who] in effect
tended to replace the colonial force with a new class-based and
ultimately exploitative one, which replicated the old colonial structures
in new terms' (Said 1993: 269). What these easy stories tend to overlook
is that nationhood, quite apart from usually being the only unifying
element in the fragmented field bequeathed by imperialism, was the
only way to enter the world beyond and be recognized as a rightful
player in it. What they also tend to overlook is that the dangerous
dimension of nation's universalism can be emancipatory and appro-
priative, a division reflected in debates over whether nationalism in
'third world' countries is a force for liberation and self-realization as a
particular people or whether it is compromised within the generality of
nation (cf. Ahmad 1992: chapter 2; Chatterjee 1993: 6; Fanon 1967: 199;
Otto 1999). It can be both.
So, with the global spread of the modern nation, the dynamic of
exclusion constituting nation as universal has to link contrarily with the
inclusiveness of the universal. The other is not only without but
necessarily within, as we saw when considering alterities in chapter 2.
Nation - the comity, community, commonality of nations - encompasses
that which it would also exclude. In-between these polar imperatives,
the world of nation is organized and classified along a spectrum rang-
ing from the most 'advanced' liberal democracies to barely coherent
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INSTANTIATION
nations always about to slip into the abyss of an ultimate savage alterity
which still remains, concentrating in its illimitable vacuity, all that has to
be transcended to achieve fullness as a nation. Along this formative
spectrum of savagery's varying attenuations, and especially at its 'lower
end', nations are still afflicted by atavistic particularity, by funda-
mentalisms and ethnic hatreds, and by unpredictable destructive urges.
'There is always', says Balibar, 'a "good" and a "bad" nationalism': this is
'the dilemma within the very concept of nationalism itself (Balibar
1991: 47). Oflate, 'Eastern Europe' and the Balkans provoke garrulous
cautions about what is barely suppressed by inadequate nationalism.
These are old stories. 'Eastern Europe', for example, has long occupied
a wavering position on the spectrum with what is seen, in contrast to
'Western Europe', as its more archaic, more culturally specific, more
folkish, more reactive and less original nationalism (see e.g. Kohn 1967:
chapter 5). It occupies an intermediate position, European but Eastern
(see e.g. Plamenatz 1976). In these disparagements of the East, the
Western nation is also accorded a particularity but is able to transcend it
by being in the forefront of the movement towards the universal. This is
a movement which contains within it all that it has been and all that it
will be. The particularity of the Western nation, as exemplary of this
movement, cannot simply be plain particular. The nation's 'goodness'
consists in its closeness to such a transcendent exemplarity, and its
'badness' consists in the distance from it.
Yet with the dynamic of alterity, again as we visited it in chapter 2,
the rejected 'badness' must still subsist in the most virtuous, the
most advanced of nations. The identity of the nation is not simply
dichotomous. Every particular nation is placed on the spectrum as
more or less savage and remains connected to an ultimate savage
alterity. In this way the advanced nations accommodate aberrations
amongst their own. Germany provides the standard instance, but even
(or especially) the closest of neighbours will view each other in savage
proportions whilst they are at war or they are otherwise perceived as
threatening. The presence of badness also enables the advanced nations
to make reasonable or, at least, understandable their own violent
excesses of foundation or imperial adventure. With their elect position
having been hewn out of recalcitrant material, the possibility of rever-
sion or 'regression' to the badness within also remains. It has to be
constantly guarded against, especially when fomented by incom-
pletely disciplined elements within, or when represented by 'aliens',
'immigrants' and other undeveloped intrusions from without.
In all, the nation's exclusive identity, that which is distinctive of it,
is never settled or secure. Occupying the area of apposition in-between
its universal and particular dimensions, nation is always becoming
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NATIONALISM
something else and it has always been something else. It cannot

integrate even the most general attributes claimed for the nation in any
enduring or definitive way (cf. Hobsbawm 1992a: 11). Admittedly the
available repertoires of attributes will be limited and there is some
demand for nation to be the same in its different manifestations, but
what is more remarkable about the identity of nation is its variability
and its changeability - and how it can change radically and still be the
specific or particular nation. Lacking an extensive fixity of positive
reference, the modern nation takes identity in a negation of that which
is other yet still integral to it.
THE NATION OF LAW AND THE LAW OF NATION
The correspondence between law and nation is remarkable in many

ways, one of them being that it is little remarked on. That nation
produces the paradigm of law has long been a domain assumption, to
borrow Gouldner's phrase (Gouldner 1971: ch. 2). Iflaw's exaltation as
a rule of law, as self-contained and self-producing, may seem to sit
uneasily with its being definitively tied to nation that unease may be
lessened, if not eliminated, by aligning law's constituent dimensions
with those of nation. Law is determined and determining and as such is
oriented like nation towards particularity. Law is also responsive to what
is beyond any determination, and since such a responsiveness cannot be
pre-confined it could be said to be oriented towards the universal, and
so this dimension of law could be seen as having a correspondence with
the universality of nation. What is crucial here, however, is the specific
quality of opposition in-between the dimensions. For what makes nation
possible, as we have just seen, is not its particularity or its universality or
any demarcated combination of the two but, rather, it is the irresolution
between the particular and the universal; and it is this irresolution, the
lack of any clear divide, which enables the particular to be elevated
universally and the universal to be exemplified particularly.
So, what I will now do is try to show how nation provides a location
for law and law's contrary dimensions. Then that perspective will be
reversed and law will be considered as locating nation. The outcome
argued for is a relation between nation and law that is necessary yet
itself unresolved, and necessarily unresolved. That will inevitably pose
the conundrum of how such 'particular universals' as law and nation
can operatively relate to each other. The 'solution' is a relation of com-
plementarity in which law and nation mutually compensate for their
intrinsic inadequacies. In broad brush, the irresolution of nation's
identity is 'overcome' by law, and the irresolution of law's identity is
'overcome' by nation. Nation's self-presentation is not violated in its
129
INSTANTIATION
completeness by this relation to law since nation appropriates law as its

own affirmation. The completeness of nation would then paradoxically
contain 'its own' relatedness to law (cf. Nancy 1991: 4). I will now
consider how law is so 'placed' in a complementary nation. Then later
the focus on nation and 'its' law is switched to law itself, whence law can
be seen as now coming before nation, endowing its characteristic
relations with operative and expressive form and effect.
The story of modern law is integral to that of nation. In its identi-
fication with nation, law acquires location and an existential purchase
compatible with its disparate dimensions - with its combining deter-
mination and responsiveness, and with its occupying a generality in-
between the particular and the universal. Modern law, then, clings to
nation as its epitome. Nationalism, in turn, welds the state to a rigidly
demarcated national territory and occidental law comes to be seen
from the early nineteenth century as definitively attached to the nation-
state. 'Law grows with the growth and strengthens with the strength of
nations', Savigny revealed, 'and finally it dies away as the nation loses
its nationality' (see Kelley 1984: 79; and also Strakosch 1967: 3). In
Austinian terminology, and as we saw when searching for law's space
in chapter 3, 'law properly so called' could now only be the product of
the 'determinate' sovereign authority in an independent national
society existing amongst other such societies (Austin 1861-3 [1832]:
vol. I, 173-5). This national authority provided a place or a position
for a law 'frequently styled positive law or law existing by position' (Austin
1861-3: vol. I, 2 - his emphasis). What was a matter of stridently
purposive affirmation in times when nation and law were being con-
nected has now become simply but significantly taken-for-granted.
So, law may issue from an immemorial time but it is a national
time. Or origins may, with a like convenience, be chronologically and
geographically distanced from present law but that distance is per-
ceived from a national place (e.g. Pocock 1967). To generalize from
Goodrich's abundant account of an inventive English phase, 'the
function of the origin is primarily that of establishing an appropriate
figure or emblem with which to characterize the specifically ...
[national] quality and originality ... ' of the law (Goodrich 1992: 11).
Where law springs from some revolutionary rupture, it is a national
revolution. And where law generates and enfolds its own origin, the
legal place of this legal origin is also distinctly national. The 'breast' of
the judges enshrining the law will be a national breast (Blackstone 1825:
vol. I, 68). A founding constitution will be a national constitution, a
founding people a national people. The jostling co-existence of dif-
ferent origins is itself made possible within the affirming variety of the
form of nation with its ability to accommodate diverse and conflicting
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NATIONALISM
entities. Thus Roman Law has been both the quasi-universal originator
of national law and the enemy of law's true origin in some particular
ethnic nationality (see Bergh 1994; Stone 1966: 89-101).
This conjunction of law and the modern nation comes from a par-
ticular idea of political society which can be traced to Enlightenment
and its connecting of law and savagery. Prior to Enlightenment, linking
different 'nations', including savage and barbaric nations, with dif-
ferent kinds of 'laws' had not been unheard of. Nor was it unusual to
contrast law with savagery. But with the advent of Enlightenment, the
political society characterized by the modern nation-state and its law
distinctively originate in savagery as their contrary. This can be a matter
of complete opposition - the lawful nation as against a lawless savagery
- or it can be a matter of a qualitative divide in law itself, a divide
between an enduringly secure law and an arbitrary despotism, or
modern law's immensity of advance on prior and inferior types of law
(see Fitzpatrick 1992: chs. 3 and 4). It is within such supposed tran-
sitions that law absorbs from the attributes of modern nation lineaments
of its own solidity. Nation's asserted homogeneity of population,
boundedness of territory, and centrality of rule give content to a law
which thence takes on a concentrated and pervasive 'strength' not
found in 'barbarous' or 'rude nations' which lack 'subordination' in a
'system of rule' and 'perpetual command'.10
All of which places law within the account of nation given so far but,
to fill out the relation of complementarity between them, that per-
spective will now be reversed and law considered extensively as a
condition of nation. The existence of modern nation is frequently fused
with that of law. For Hegel a proto-national 'community that is
acquiring a stable existence, and exalting itself into a State, requires
formal command and laws - comprehensive and universally binding
prescription' (1956: 61); 'so long as it [nation] lacks objective law
and an explicitly established rational constitution, its autonomy is
formal only and is not sovereignty' (Hegel 1952: 218-19 - para. 349).
Echoing this, in the earlier engagement with law's space we saw that
the national sovereign advanced by Austin as the source of law took
on 'independent' existence itself only as a creature of the law. In the
profusion of more recent attempts to capture the essential attributes of
modern nation, the inclusion of a distinct national law - 'common legal
rights and duties for all members' of the nation - is close to standard
(Smith 1991: 14). This 'legal aspect' is taken so far as to typify those
nations which are more civic than 'ethnic' (Smith 1986: 135-7). In
specifically legal discourse, a certain perfection of law has been readily
resorted to as a marker of the more elevated nations. Common law, or
just plain law, is often claimed to be of the essence of English national
131
INSTANTIATION
identity which seems also, as we saw somewhat earlier, to have some-

thing of a prerogative hold on lawfulness itself. Law, says Carty, is 'the
principal form through which the English people express their identity'
(Carty 1991: 183). And Cotterrell has caught the significance of 'con-
stitutional symbolism' in exalting the national identities of Britain and
the United States (Cotterrell 1995). More generally, in occidental
versions of political society it is customary to find that legality 'cele-
brates and elevates the law to an exalted status as the expression of unity
in the nation' (Sumner 1979: 293).
This elevation of law in its relation to the modern nation becomes
manifestly appropriate if two points previously made are overlaid. One
was law's being the constitution of society with its combining of society's
disparate dimensions, something outlined in the second chapter's
section on societies; and the other was that standard taking of modern
nation to be the paradigm of society, something touched on a little
earlier in this present chapter. The operative modes through which law
constitutes the national society will now be considered in this light.
Law's constituting of a nation amongst nations is something saved for
the next chapter. Here the concern will be with law's filling of the
'internal' space of the singular nation.
With its pre-modern manifestations, occidental law was eminently
placed to match and advance the formative elements of nationalism,
incorporating as it did a universalism religiously derived with the
particularity of territorial assertion by centralizing rulers (cf. Anderson
1991: 12, 17). Such a law was in part an expression of what could retro-
spectively be called particular interests - an expression of estates,
statuses, guilds, corporations and other groupings. But it also took from
religious belief a force that was transcendent or general and in some
ways dominant over these particular interests. There were restless reso-
lutions linking these two dimensions, but with a monadic modernity
they combine into a singular and secular law and a sustaining religious
point of reference is no longer relevant. Law as representative of
interests comes to represent a general interest conceived eventually
in terms of nation.
This law was not simply the formal and consequential marker of
national sovereignty but was, rather, prerequisite and instrumental in
the formation of the modern nation. The constituent elements of a new
system of rule were to be found in law and these matched the dimen-
sions of modern society sketched in chapter 2. This law provided a
determined and determining 'instrument for rule', yet this positioned
instrument could also be 'a flexible, indefinitely extensible, and
modifiable instrument for articulating and sanctioning' a sovereign
will (Poggi 1978: 73-4). Above all, in a certain literal sense, this was
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NATIONALISM
a general law, applicable uniformly throughout the whole of a national

territory. As such, it transcended the diverse and the particular within
that territory. Law, then, comes to universalize particular rule, giving its
specific character an homogenizing and civilizing force. The coverage
of law in this is not and cannot be a matter of some finally achieved
order. True, the new system of 'state sovereignty is fully, flatly, and
evenly operative over each square centimetre of a legally demarcated
territory' (Anderson 1991: 19). Modern law's pre-eminent pervasion,
however, lies not in any fixity of attachment but in its hovering
ubiquitously over and incipiently occupying all finitudes, in its being
ever able to 'cut' into, and render palpable, its own infinite possibility.
Modern law's claim is to be always and everywhere capable of creating
or manifesting 'presence'. Where law fails in this, its potential grip on a
recalcitrant reality is nonetheless maintained because law is an infinitely
extensible warrant for nation's disciplinary project, for its intrinsic
civilizing mission, for its constant effort to occupy its space 'fully, flatly'.
This orientation of national law towards the universal can be dis-
cerned in the expedients adapted to signify it. The most obvious has
been the transitional - the heightening of the sacred quality of
monarchical rule along with the national 'territorialization of faith'
(Anderson 1991: 17). That which 'took its place' tends to be more
diverse and opaque. For many European nations, one of Rousseau's
lawgivers - the lawgiver who has to come from the outside - found an
equivalent in Roman Law (Rousseau 1968: 85). In various revived
forms, Roman Law provided a supposedly universal warrant for a new
national rule through its generalizing effect on or within more par-
ticular or local systems, and then through its influence on the codes
which displaced these. Another 'lucky imposter' was a transcendent
reason with which national law was somehow identified (cf. Rousseau
1968: 88). The English managed to combine this rationalist response
with an indwelling myth os of law itself as mysteriously immemorial
(Pocock 1967).
What is usually emphasized, however, is the determining force of
national law, rather than its universal orientation - its responsive regard
to what is beyond present determination. In this national character and
with this determining force, law is usually seen as having freed the
people from the trammels of an uncertain savagery and its varied
attenuations in nature, tradition, custom, estates, and arbitrary rule
generally. In so doing it delivered them to the liberated condition of
a deracinated, universal citizenry. That same law, as we have just
seen, was also formed in the modern period as an infinitely flexible
but homogenizing system of rule and as such it was eminently well
placed to counter savageries insufficiently superseded. It could 'release
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INSTANTIATION
norm-contents from the dogmatism of mere tradition and ... determine

them intentionally' (Habermas 1976: 86). It could undermine any fixity
with its own and was not to be bound in any enduring attachment. Law
becomes calculative and explicit, set and set apart, formed and formal.
The archetypal distillation of these processes was the citizen state's
Declaration 'of the rights of man and the citizen' of 1789 which, after
according foundational rights to 'man', hastens to assert in article 3
that 'the nation is essentially the source of all sovereignty, nor shall any
body of men or any individual exercise authority which is not expressly
derived from it'. Even in those systems where the derivation of national
sovereignty is not formally expressed, other authority can still either
be prohibited outright by law or be made in its exercise 'subject to'
law. Such other authority is, then, always provisional and contingent.
Law severs the connection between this authority and any sustain-
ing order, natural or sacred, any savage contents of blood and soil,
that could compete with law itself and with its nation. From its position
of surpassing general dominance, law renders any alternative order
irredeemably particular. Law thence provides a ground for the uni-
versality of 'society' - both the national society and society in its
generality. This society is thus rendered capable of encompassing any
order or authority within it. What then could carry this surpassing,
denying, generalized legality when it could no longer be found in a
prodigious diversity inhabiting the medieval guild, the corporation or
the landed authority? It is carried singularly by 'this new thing', the
citizen (Schama 1989: 859).
Citizenship shares with nation an intriguing inability to secure any
extensive consensus on what it may be and this for compatible reasons.
The irresolution in the dimensions of nation can be initially matched
with that of citizenship via the rich etymology of 'citizen'. Here Roman
usages are the most invoked. The immediate correspondence is drawn
with civitas, the city, as the place of civis, or citizen. The earliest ante-
cedents of these terms, it would seem, extended to both the contained
familial bond and to a status which transcended and joined together
familial groupings, marking what was common to them (Benveniste
1974: chapter 20). The usage eventually becomes more combinatory
and closer to modern citizenship with civitas importing a union of
citizens in a state or commonwealth. What remains significant here is
the element of commonality, now a commonality between citizens
(Cicero 1928: I, xxv-xxvi). There was also considerable, if not un-
equivocal, emphasis on the equality of these citizens. A more straight-
forward rendition of that situation can be found if the etymology is
broadened to cognate terms such as polity. In the usage of classical
Greece, the citizen, the politis, is a member of the polis, usually rendered
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NATIONALISM
as the city. Politis imports equality, isotis. The citizen participates in the
polis on the basis of equality with all other citizens. Although this was
something of an abstracted relationship, one superseding familial ties,
citizenship and this equality still had their particular limits. Not only
were they conceived as against the barbarian without, but they also
excluded certain more proximate others within - women, slaves and
some occupational groups.
Modern citizenship took form in a seemingly similar opposition. This
was in part an opposition to the savage and the barbarian without (e.g.
Williams 1983: 57, 59). But there was also a turning within, a continually
constitutive opposition to customary, traditional and the like identities
in the making of good citizens - a process of internal civilization (cf.
Starobinski 1993: 2). This negative construction frees citizenship from
any positive, constraining attachment and in this way enables it to make
its characteristic claim to universality. In most of its renditions, this
claim is reduced to the assertion of commonality. All that is particular
and localized and all differences of rank and status are to give way to
a common citizenship tied to an exclusive sovereign authority - 'one
people ... one Lord .,. one speech and law, soul and strength and
sword' (Kipling 1919: 232),u
The particular has its necessary revenge, however. A purely universal
citizenry cannot exist in itself, as it were. There has to be a place citizens
come to and depart from, a particular and limited place in which they
become less than themselves. That place, a place taken as the paradigm
of society, is the particular nation and the citizen is a citizen of a nation.
This emphatic nation, territorially bounded, the nation of 'blood and
soil' as it is so often put, knows its citizens in precisely these atavistic
terms. The ius sanguinis or the ius soli (the softening Latinisms are
usual) is what brings the citizen of the occidental nation into being.
Nation is also the place where this particularity of citizenship is joined
with its universal orientation. As with nation, law 'comes between' and
combines these disparate registers, each impossible in itself, and makes
possible the citizen's plangent existence. Citizens are 'related by law'
(Marx 1975: 233); and law carries the commonality of citizenship. The
provision of 'common legal rights and duties for all [its] members'
thence becomes an indicator of nation (Smith 1991: 14). To the extent
that citizens have an operative common existence within the order of
the nation, it is law which constitutes that existence. It is law which,
finally, mediates between the citizenry making up the determinant
nation, the nation of blood and soil, and what lies beyond. The national
boundary in its standard conception is a fixity only marginally or
incidentally disturbed by those who would broach it. In terms of
legitimate presence within the nation, the citizen being the fullest
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INSTANTIATION
expression of that presence, nation is bounded, rather, by law and by its

designating who can and cannot (mter it legally.
In straightforward summary, then, this outlining of the comple-
mentary relation between them shows law to be a creature of nation
and nation to be a creature of law, but it also indicates, in line with
the analysis that preceded it, that neither law nor nation can still the
generative irresolution with-in the other. The desperate deficit in the
integrity of law and the integrity of nation not only counters any claim
to an achieved certainty, it also reveals the assertion of certainty as
contingent and as having to be continually worked and made' certain'.
All of which must put in question those abrupt assessments of the
supersession of nation. Given nation's lack of fixity, its orientation
always beyond any contained emplacement, and its complementary
dependence on what is in ways apart from it, the assessment of nation's
continuing viability has to be at least more extensive in its range and
more nuanced than it most often is. The issue of this viability is never
far removed from the argument in the remaining chapters. Before
coming to them, there is first a considerable 'case' which serves to draw
together and illustrate the present chapter's main themes and to
project them forward to those remaining chapters on imperialism
and globalism.
THE EUROPEAN NATION
If, as far as it concerns nation, the argument of this chapter has

been one for nation's persisting centrality, then the scene now visited
supposedly confounds such an argument. The European Union ('EU')
both in its self-presentation and in the usual perception of it transcends
nation. Certainly, it does involve giving significant sovereign power to
an international body. However, the argument here will be that the EU
achieves this seeming transcendence, not by becoming different to its
member-nations but, rather, by containing them in a replication of
the dimensions and dynamic of nation. It is true also that the EU
does elevate a law made in large part 'directly applicable' without the
mediation of the member-state. This law is further elevated to an
ultimate ascendancy through the expansionist jurisprudence of the
European Court of Justice. That jurisprudence and the recent Treaties
of Maastricht and Amsterdam would transform nationals of the
member-states into citizens of the EU - into the subjects of its own
distinct and complete law. However, in all this the EU takes on and
vigorously promotes the attributes of the nation. What is especially
significant here, and what will be most emphasized in my analysis, is that
the EU and its law are formed and exalted as epitomes of the universal
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NATIONALISM
and progressive in opposition to the particular and reactionary realms

of the nation. In such opposition what is emphasized, of course, is the
'badness' of nations - the atavistic, savage nation of warlike and divisive
assertion, at best the nation of blood and soil, a diminishing survival of
past times, certainly not the nation in which 'I am (we are) all the more
national for being European' (Derrida 1992b: 48). What disappears in
this rhetoric is that the nation of nationalism is a creature of modernity
and sustains a universal dimension. Nation, as we have seen, is an
inextricable combining of these contrary dimensions. There is not so
much a deadly opposition between the constricted nationalism of the
member-states and the expansive internationalism of the ED but,
rather, a compatibility between these things. It could be said that such
an outcome is not a matter of the ED outflanking the nation as one of
nation outflanking the ED - or outflanking the standard, purely supra-
national version of the ED. Such a conclusion is not, however, without
its challenging consequences for the viability of the national idea, as we
shall see.
Europe shares with nation an intriguing inability to be rendered as
anything palpable at all and for reasons similar to those adduced for
nation at the beginning of this chapter. Either it is universal, and thus
incapable of assuming any limited or particular identity, or when given
specific characteristics, these fail to match its universal dimension
and turn out to be not exclusive to it in any case. So, Europe, self-
epitomizing as 'the universal essence of humanity', 'has always given
itself the representation or figl\re of a spiritual heading, at once as
project, task, or infinite - that is to say universal - idea'; but this same
expansive self-endowment also runs widdershins, self-encloses and
becomes 'the memory of itself that gathers and accumulates itself,
capitalizes upon itself, in and for itself' (Derrida 1992b: 24, 48). There
is, then, and has to be a persistent vacuity in efforts to say what Europe
decidedly is. In a piece somewhat plaintively titled 'What is Europe,
Where is Europe?', Seton-Watson found that: 'The word "Europe" has
been used and misused, interpreted and misinterpreted, in as many
different meanings as almost any word of any language. There have
been and are many Europes' (Seton-Watson 1985: 9). He considers
several contenders - the bounds of Charlemagne's Empire or the
bounds of Christendom, for example - but is convinced by none.
Europe's bounds have remained chronically uncertain, especially in
their eastern, including south-eastern, definition. The usual effort at
positive definition takes the form of the list - something which can
suggest what is ever more encompassing of its detailed particulars.
Duroselle's miscellany provides a not unusual example: 'we have
been influenced by ancient Greece, by Judaism, and by Christianity,
137
INSTANTIATION
Megaliths, Roman roads and monuments, local autonomy, Roman-

esque art, the cathedrals, the universities, the explorers, the Industrial
Revolution, human rights: these and many more elements are of the
essence of Europe' (Duroselle 1990: 413). The lists can be more
economical but, typically, are no more concerted. Faced with such
dissipation of positive description, Malraux's resort to a negative
coherence - 'there is no Europe ... Europe is what Asia is not ... ' -
seems inevitable (in Heldring 1987: 93). Such a negative outcome
avoids challenging Europe's universalist claims since the universal
would no longer be such if it were positively delimited.
The arrogation of what it is to be 'European' by the EU seems to
relieve it of any necessity to identify itself. The main Treaty, although
establishing a 'European Economic Community', betrays no interest in
the nature of this Europe. Although the preamble to the Maastricht
Treaty on European Union is replete with the by now standard in-
vocation of 'liberty, democracy, and respect for human rights and
fundamental freedoms and the rule of law', nowhere is the explicit
nature of the union confronted. This list - another list - is added to
variously in different settings. The 'Declaration on the European
Identity', agreed to by the members of the Community in 1973, revealed
that they were distinguished by 'the same attitude to life' and a com-
mitment to the 'individual'. To take one more example, the varying pre-
conditions for associate membership of the EU, whilst listing most of
those qualities, usually put additional emphasis on the prerequisite
abilities to protect minorities, to operate a market economy, to accept
international obligations and to be committed to peaceful process and
negotiations. All of these characteristics are hardly exclusive to the EU
and its members. They can even be notoriously absent. Democracy is
hardly a convincing characteristic of the EU itself.
If the EU does not differ from nation in the failure of its effort at
positive self-definition, it is no more distinguished in its resort to
negative affirmation. This is an affirmation in opposition to what is
'non-European'. And that which is 'non-European' is, as Cris Shore says,
'being defined with increasing precision and thus, as if by default, an
"official" definition of Europe is being constructed'; and as he also says,
'the new European order ... is coming to mean a sharper boundary
between "European" and "non-European'" (Shore 1993: 786, 793).
The story of how this boundary came to be put in place has already
been told, and well told (Paliwala 1995). It is a story of the erection of
a 'Fortress Europe' enclosing a distinct European identity. It unfolds
in the joining of two momentous effects: the progressive elimination
of internal or national boundaries within the EU and the increas-
ingly draconic enunciation of an 'external' boundary around the EU,
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NATIONALISM
setting it against certain excluded others - whether the immigrant, the

brooding terrorist, the resurgent ethnic or, increasingly, the refugee.
This scene has been consolidated in the Maastricht Treaty and its
accompanying proliferation of shadowy but potent EU and peri-EU
regimes, all 'harmonizing', refining and heightening the exclusion or
challenge of these others. The Maastricht Treaty itself predisposes
'asylum', 'immigration', and 'nationals of third countries' to dis-
tinctly negative connotations by dealing with all these in conjunction
with 'combating unauthorised immigration, residence and work ...
terrorism, unlawful drug trafficking and other serious forms of inter-
national crime' (Article K.l).
These modes of exclusion do not simply operate at some supposed
external border of the EU; the excluded are also within. The Treaties of
Maastricht and Amsterdam thrust a thin 'citizenship of the union' on
nationals of the EU's member-states, and even if this so far adds only a
little to rights those nationals already had under the original Treaty, it is,
in corti unction with such rights, a significant and full citizenship based
on 'natural' affiliation and not confined to its capacity to participate in
a 'common market'.12 It serves to focus the rights of nationals into a
distinct identity which is privileged above the identity of resident non-
nationals, so much so that these are effectively excluded from active
participation in the putatively universalist rule of law of the EU - an
ascribed denizen or pariah status not without European precedent (cf.
Arendt 1958: 286, 296). These non-nationals are variously estimated to
number between 10 and 15 million - the range presumably being
related to the impossibility of calculating the number of 'illegal immi-
grants'. So, that sense of proximate threat conducive to the negative
formation of an identity does not simply impinge on some frontier
region but can also be intimately invoked as an ominous internal
presence. This danger within then requires, of course, greater inter-
governmental co-operation between member-states of the EU in the
cause of more controls, surveillance and gathering of information.
Again, there is little that is original in these EU and peri-EU regimes.
They adopt and give effect to the same obsessions as those of many
member-states - the victimization of the refugee being a prominent
recent example (see Tuitt 1996). In sum, recent realizations of the EU
manifest classic attributes of nation in the negative resort to alterities
compensating for the division or fracturing between its set bounded-
ness - its affinity to the nation of blood and soil - and the rejection of
that very quality in its attachment to the universal.
Of course in its self-presentation, and for its apologists, the EU is very
much of this universalist dimension: 'The [EU] is typically portrayed
as a logical development of the Enlightenment: a force for progress
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INSTANTIATION
inspired by science, reason, rationality and humanism .... These dis-

courses also tend to portray the European Parliament and Commission
as heroic agents of change, on the side of history, leading Europe for-
ward in search of its supposed "federal destiny'" (Shore 1996: 102-3).
Even more extravagantly, but still not un typically, Delors would have it
that 'the European identity is a sense of the universal, the world started
out from chez nous' (in Grant 1994: 163).
This surpassing quality of the EU's identity, together with its specific-
ally supranational character, would seem to be confirmed conclusively
in the rejection by the EU of a nationalism typified by its member-states.
Bergeron has located the EU's quality of the universal in its 'negation
of the national' (Bergeron 1998). This is the nation whose barely
attenuated savageries constantly attend the precarious achievements
of a civilization which is universally oriented. Those who persist in
summoning this nationalism against the EU, 'those who awaken
phantoms', were for Delors quite beyond the pale (see Grant 1994:
223). Even more pointed, the information booklet issued by the
Commission, 'A Citizen's Europe', sees the EU as 'an attempt to estab-
lish between States, the same rules and codes of behaviour that enabled
primitive societies to become peaceful and civilized' - the member-
states, in other words, are the new primitives (see Shore 1993: 793).
To illustrate this fundamental attitude, we could take Schepel and
Wesseling's close and cogent observation of 'the mindset' of lawyers
involved with EU law, whether in legal practice or in the academy
(Schepel and Wesseling 1997). In this mindset, there is a constellation
of malign attributes associated with the nation-state and national
sovereignty - such as war, decay, nationalism, politics - and these
are arraigned against a benign EU intrinsically associated with con-
trary attributes such as integration, peace, cosmopolitanism, progress,
and law. 13
If, however, we move beyond this convenient confinement of nation
to a primordial specificity, the EU begins to appear more like than
unlike nation. Nationalism also makes claims, as we have seen so often,
to an expansive project and a universal dimension - claims which seem
in their content and their history indistinguishable from those associ-
ated with the EU. Yet these same claims had, somewhat paradoxically, to
be tied to nation as particular. The achievement of the universal would
dissolve all particularity, and hence any situated existence at all. The
EU's formative rejection of the 'badness' of member-nations as 'other'
is a rejection of qualities which it exhibits itself in assuming a situated
identity. To try to overcome this fracturing of its identity, there is an
expulsion of these rejected qualities. This is effected as well, and as we
have just seen, in the marking and supposed rejection of others who are
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NATIONALISM
'without'. Those who are without are physically beyond the bounds of
the EV, or they have only a partial or provisional or illegitimate
existence within its territory. In all these combined ways - the assertion
of a particular and prerogative claim, the arrogation of the universal
and of an expansive project, and the affirmation of elevated being in
opposition to others 'without' - the EV takes on an identity which
seems indistinguishable from that of nation. As with the formation of
modern nation, the EV now seeks to create and convert citizens who
will be allied to the EV, and in this alliance all that is particular or local,
all 'intermediate institutions', may eventually be overcome. It would be
tempting to see this in Marx's terms as tragedy the first time around and
farce the second, if the elements of tragedy and farce were not so well
mixed for both (cf. Marx 1970). A manifestation of the mix: in seeking
to form a compliant citizenry, the means adopted have usually been as
calculating and tawdry as those used by national elites with the creation
of traditions, rituals, public symbols and ancestor figures (see Shore
1993; Shore and Black 1994).14
It may at first seem surprising to claim that this citizenry is one of
a national kind. The commitment to a 'common market' should, one
would think, involve some affirmation of a type of universal which
would counter the confinement of citizenship in the particularity of a
national place. And the huge historical and practical force of the EV's
intrinsic assertion of the market operates not just beyond but in
opposition to the nationally based claims of its member-states. This
assertion of the market, however, is not one made in the setting of a
purely international place which is itself constituted only in terms of the
market, pace the much-propounded 'market model' of the EV's identity.
Assertion takes place in national terms and the EV occupies the same
'space' of irresolution in-between the universal and the particular which
characterizes nation. Citizenship itself also matches this irresolution, as
we saw, combining as it does membership of the particular national
community with what is universally 'civil' or coming to be so. Citizen-
ship of the EV is, in the same way, a 'true' citizenship, conceived and
operative in nationalistic terms. It is not extended in terms of market
functions - in terms of a 'market-citizenship'. It is also a 'true' citizen-
ship in its potent discrimination against non-citizens. These cannot
participate in the legally endowed rights and protections of the EV's
'common market'.
This creation of a 'natural' affiliation does, however, signal some
qualification of my analysis so far. The EV as a nation writ some-
what large and the member-nations conflictually occupy the same
ground, the same territorial place, not only as a matter of formal
legal and constitutional allocation but also in terms of the existential
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INSTANTIATION
commitment of much of their citizenry.15 To an extent, this conflict is

muted in the universal orientation of nation. One can be both distinctly
French and a cosmopolitan European for example, usually without
great discomfort. Yet the dissonances are conspicuously there. More-
over, the specific challenge of the ED to the nations of the member-
states does not consist solely in the explicit and trumpeted conflict
between them. Rather, the ED's challenge to its members in their
particularity comes also from the similarity which it foments within each
of them. The ED increasingly enters into the particularity of the
member-states in ways that would absorb them into equivalence. It calls
on them to become the same as each other not only by demanding
adherence to its uniform prescriptions but also by shaping the com-
monality, or potential for it, that supposedly exists in each of them. 16
The European Court stands, as ever, ready to hasten the process with its
location of Community-wide fundamental rights extracted from
national locations, or with its imposition of general requirements for
the interpretation of national laws. The overall situation is, however, not
one of a supranational or intrinsically anti-national ED set against its
antithesis in the nation-state. Both the ED and its members conform to
the characters of nation and it is the resulting duality of national sites
which is antithetical to a nationalism which heretofore had to be
instanced in singularity.
To an extent, this conflict is mediated by the similar constitution of
the ED and the European nation in exclusion and in their excluding
broadly similar others. Perhaps we can see now a heightening and
exacerbation of exclusion by both the ED and its member- nations so as
to make these nationalisms more the same, more indistinguishable - to
help them revert, as far as may be, to their primal singularity. There
remains nonetheless a disruptive duality of nationalisms in Europe, and
here law in its long relation of complementarity with nation comes to
the fore in providing a locus of singularity.
It may not be entirely obvious to say that ED law comprises a modern
legal system in that many of the ED's more indulgent observers would
see it otherwise. In the words of one of them, 'the institutional,
juridical, and spatial complexes associated with the Community ...
constitute nothing less than the emergence of the first truly post-
modern international political form' (Ruggie 1993: 140, 169; and cf.
Ward 1996: 194). To the contrary, Bergeron sees the European Court of
Justice engaging successfully in a modernist mission of state formation
(Bergeron 1998). Although the European Court is often perceived as
being excessively creative in this, its construction of a modern statist
constitution for the ED is not exactly alien to the original Treaty. As
Perry Anderson has archly indicated, it is not necessary to have the
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NATIONALISM
panoply of an executive authority, a legislature and a supreme court

to run a customs union (Anderson 1996: 14). To this listing of the
unnecessary, we could add the presence of a singular, modernist legal
system of the universally encompassing variety. EU law is not, in its
pervasive scale and tentacular reach, confined to some residual role -
confined to supplementing or working through other systems and
holding them together solely for a specific purpose established in an
international treaty. EU law is in large measure 'directly effective' and it
increasingly operates in a direct relation to its distinct, individual legal
subjects, now recognized as its own citizens. And, as is notorious, the
European Court has been pre-eminently successful in fashioning a
coherent constitution for the EU based on the judges having 'une
certaine idee de l'Europe' as an encompassing totality.
All of which is not to deny that there are other legal systems involved
within the EU - including, but certainly not limited to, those of the
member-states. As Schepel so richly reveals, legal pluralism does well
in the EU (Schepel 1998). Nonetheless, EV law, especially in its
elevation by the European Court, is oriented towards a universal
consummation. It is to be secured against the dissipated and decadent
arena of the particular and local, including, as we saw, the diversity of
the member-nations. The EU and its legality do not, of course, merely
seek to suppress these things. Complete suppression would in any
case deny the EU its dynamic of identity and coherence formed in
opposition to them. Rather, the EV and its law treat with some of
their proximate and constantly challenging alterities. They accom-
modate and incorporate dimensions of them. They are increasingly
positioned as that necessary point of common reference if there is to
be a plurality of their component units. The EV and its law do all
this, however, not in a supposedly postmodernist responsiveness to
and regard for each such thing in its quivering specificity but in its
monadic orientation towards their own determinative work, their own
particular telos.
Yet, the assertion of an encompassing and universalist quality of EU
law, in a seeming paradox, is tied to a necessary recognition of its limits.
EV law is confined and incomplete in both its formal range and its
actual efficacy, and this not least in its continuing dependence on
nation for much of its effect. This deficit is readily resolved in the
mythology of Europeanism where such shortcomings are seen as both
an obstacle and a spur to a progress which is overcoming them. Much
of the diversity or plurality of law within the EV can be subordinated in
a unitary frame by viewing it as something which is being countered
in this progress. Again, the parallels with the formation of modern
European nations are hardly remote.
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INSTANTIATION
So, despite, and because of, these transcendent and universalist

dimensions, the law we have been considering is specifically located. It
is either the law of a specific member-nation of the EU or the specific
'national' law of the EU. Since this division in the location of law is
formally set within EU law itself, and since there is no sovereign
authority overarching the division, the EU may seem to take on a
postmodern colour. Furthermore, and as Darian-Smith indicates so
graphically, people within the EU seem to engage successfully with a
plurality of legal systems, and they do so in ways which do not look to
some ultimate and singular resolution (Darian-Smith 1999). Just when a
unitary and modern law seems to be on the retreat, however, it comes
into its own. Law can be located now in different but overlaid national
settings as the law of the EU or the law of a member-nation. Yet in a
significant sense, law in both these locations is also the same. This
sameness subsists in national terms since nation and a national law are
not just of a particular place. They are also, as we saw, universalist
extraversions. Where this capacity for extraversion was given some
operative recognition, such as in the comity of nations, then the various
included nations were seen as having the same quality of law. Even
though the legal system of the EU is distinct from the legal system of a
member-state, they both exhibit a shared quality of law. They are both
plenitudinous, 'advanced' legal systems of a modern kind, 'supreme'
in the coverage of their respective spheres. This similarity is both
illustrated and heightened in those efforts of the European Court
which, as we saw earlier, would combine elements of the various
member-states into something of a common law of the EU. In short,
nation gives a place to law, and the similarity oflaw in different national
places retroacts on and unites these primal locations of law. This
subsuming similarity oflaw is made palpable in its 'Europeanness'. The
universal, whether inhering in law or nation, must be instantiated and
'Europe' has provided a cohering combination of particular place and
universal exemplarity. Law in its 'Europeanness', whether the law of the
EU or of a member-state, provides then an equable and singular place
accommodating the duality of nationalisms in the EU.
If this line of argument were to hold, we would expect law and
its 'Europeanness' to be accorded a central part in the EU scheme
of things and, mirabile dictu, such would seem to be the case. 17 So, we
discover in Schepel and Wesseling's depiction of the mindset of
'European' lawyers that a transcendent and unifying 'law' is associated
integrally with the EU, and they find that the identification of the EU's
legal community with the aspirations and ethos of the Union is close to
complete (Schepel and Wesseling 1997). Ifwe were to focus on the most
potent members of that legal community, we would find that 'European
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NATIONALISM
in tegration', the constitutional coherence of the ED, and the pervasion

of its dictates and ideals are all causes accorded a distinct and large
place in the jurisprudence of the European Court of Justice. Indeed,
the project of union has found a more constant support in 'l'Europe
desjuges' than in the political arena of the ED.
In short, those easy assertions of yet another final decline in nation
and its law miss a target which is more complex and more elusive than
they would allow. Such assertions would confine nation to a particularity
of blood and soil and set it against a numinous and universalist 'Europe'
of the ED. Yet, as we have seen, this supposed opposition is with-in
nation itself. So constituted, nation extends its protean range to the ED
as well. The contest between the ED and the member-states becomes,
not a contest between nationalism and something else, but rather one
between competing nationalisms, and in the competition nationalism
is heightened rather than diminished. It was law, and law in its
'Europeanness', which, so the argument finally ran, compensated for
or, in a way, unified this now manifestly plural location of nation.
Returning to the point from which this depiction ofthe ED departed,
the confident relegations of nation and nationalism, the abrupt denials
of their continuing viability, may now be opened to question. That
questioning will persist in two main strands derived from the present
chapter. One involves the matching dimensions of law and nation. Of
those dimensions, what will be especially emphasized in the remaining
chapters is nation's orientation towards the universal and the dimen-
sion of nation's particularity will tend to be placed within that emphasis.
The second inquisitive strand will pursue the complementarity of law
and nation beyond the confines of the singular nation, putting some
further emphasis on that integrating role of law just broached in the
case of the EU and its competing national domains. Both of these
strands flow through the next, and final, two chapters.
145

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CHAPTER 4

We know what it is when you do not ask us, wt we

monadic assertion of nation through law comes about not because

(Hobsbawm 1992a: 11). Nation adapts to a seemingly infinite diversity

capabilities of states today in any general fashion fall short of those of

THE IMPOSSIBILITY OF NATION

The first of these attempts to contain nation is provided by Anthony

than unshakeable. He recognizes that there are different sorts of

impossibility. This is a community of complete and palpable com-

France, the great begetter of nationalism and of the universal nation,

The universalist, boundless imagination, ranging beyond all ties,

with malign indetermination - and that assumption of solidity forms

THE POSSIBILITY OF NATION

Enlightenment, or modernization, or material achievement may be

Although they are so comprehensively incapacitated, Hegel manages to

103 - his emphasis). This crepuscular construct is found in the West

THE SAVAGE NATION

Indeed, coherence is sought in nation through the excluding of what is

a world society' (see Gong, quoting Schwarzenberger, 1984: 88). New

pervasive and ordained in its defining project, the comity of nations

something else and it has always been something else. It cannot

THE NATION OF LAW AND THE LAW OF NATION

The correspondence between law and nation is remarkable in many

completeness by this relation to law since nation appropriates law as its

identity which seems also, as we saw somewhat earlier, to have some-

a general law, applicable uniformly throughout the whole of a national

norm-contents from the dogmatism of mere tradition and ... determine

expression of that presence, nation is bounded, rather, by law and by its

THE EUROPEAN NATION

If, as far as it concerns nation, the argument of this chapter has

and progressive in opposition to the particular and reactionary realms

Megaliths, Roman roads and monuments, local autonomy, Roman-

setting it against certain excluded others - whether the immigrant, the

inspired by science, reason, rationality and humanism .... These dis-

commitment of much of their citizenry.15 To an extent, this conflict is

panoply of an executive authority, a legislature and a supreme court

So, despite, and because of, these transcendent and universalist

in tegration', the constitutional coherence of the ED, and the pervasion

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