Abstract
This chapter scrutinises MacCormick’s liberal nationalism.The first issue with which he grapples is how well the post-sovereign constellation can re-configure nationalism through disposing of the exclusivist and suppressive(of regional forms of nationalism)propensities built into the sovereign state.Second,is the question of the status of liberal nationalism in MacCormick’s broader theoretical conception of the post-sovereign constellation.This also raises the issue as to whether there might be other,alternative,modes of allegiance that might be compatible with MacCormick’s general approach to law and politics in the post-sovereign constellation. In the concluding section,it is argued that a cosmopolitan constitutional patriotism might be a more suitable mode of allegiance for the post-sovereign constellation.The potential for harnessing this to a democratic end,the chapter argues,is best ensured by building upon the deep insights in MacCormick’s approach,and subsuming them under the theory of constitutional synthesis.
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Notes
- 1.
M. Billig, Banal Nationalism (London: SAGE, 1995), p. 8.
- 2.
B. Anderson, Imagined Communities (London: Verso, 1991).
- 3.
J. Habermas, The Postnational Constellation: Political Essays (Cambridge: Polity Press, 2001), p. 64.
- 4.
A. D. Smith, National Identity (London: Penguin, 1991), p. 14; see, also, Neil MacCormick, Questioning Sovereignty (Oxford: Oxford University Press, 1999), p. 186.
- 5.
J. Hutchinson and A. D. Smith (eds), Nationalism, Vol. I (London: Routledge, 2000).
- 6.
The most comprehensive statement and the one most systematically addressed here is Questioning Sovereignty (from here on, this work is referred to as QS), note 4 supra. But see, also, MacCormick’s writings in: “Beyond the Sovereign State”, (1993) 56 The Modern Law Review, pp. 1–18; “Liberalism, Nationalism and the Post-Sovereign State”, (1996) 44 Political Studies, pp. 553–567; “The Rise of Scottish Nationalism”, (1974) 44 The Round Table, pp. 425-438; “The Health of Nations and the Health of Europe”, (2005) 7 The Cambridge Yearbook of European Legal Studies, pp. 1-16; “Nation and Nationalism”, in: R. Beiner (ed), Theorizing Nationalism, (Albany NY: SUNY Press, 1999), pp. 189–204; “Does a Nation need a State?” in: E. Mortimer and R. Fine (eds), People, Nation and State: The meaning of Ethnicity and Nationalism, (London: I.B. Tauris, 1999), pp. 125–137; “Independence and Constitutional Change”, in: Neil MacCormick, The Scottish Debate: Essays on Scottish Nationalism, (Oxford: Oxford University Press, 1970), pp. 52–62; idem, Legal Reasoning and Legal Theory, (Oxford: Clarendon Press, 1978).
- 7.
As initially developed by Yael Tamir, Liberal Nationalism, (Princeton NJ: Princeton University Press, 1993). See, also, D. Miller, On Nationality, (Oxford: Oxford University Press, 1995). Here, I do not distinguish between liberal nationalism and civic nationalism, as there are quite a few affinities between those generally listed under the second wave of nationalism, be they formally labelled as civic or liberal nationalists.
- 8.
QS, note 4 supra, p. 95 and pp. 137–56.
- 9.
QS; see, also, MacCormick, “Does a Nation need a State?”, note 6 supra.
- 10.
MacCormick notes that this is a form of tamed nationalism; see QS, p. 167. It might also be added here that MacCormick’s main empirical reference, Scottish nationalism, was very different from the context within which Tamir’s notion emerged, namely, the Israeli context, which, if anything, would expose a deep ambivalence.
- 11.
QS, p. 164.
- 12.
QS, p. 162.
- 13.
QS, p. 162.
- 14.
QS, p. 182.
- 15.
W. Norman, Negotiating Nationalism, (Oxford: Oxford University Press, 2006), p. xvi.
- 16.
QS, p. 180.
- 17.
W. Kymlicka, Multicultural Citizenship, (Oxford: Oxford University Press, 1995), p. 83.
- 18.
As Wayne Norman has noted, “nationalism can be considered to be one of the most successful forms of communitarian politics in the modern world”. (Norman note 15 supra, p. viii) MacCormick’s emphasis on “contextual individuals”, then, also has clear resonance with Charles Taylor’s notion of the modern identity. See C. Taylor, Human Agency and Language, (Cambridge: Cambridge University Press, 1985); Philosophy and the Human Sciences, (Cambridge: Cambridge University Press, 1986); and notably Sources of the Self: The Making of the Modern Identity, (Cambridge MA: Harvard University Press, 1989).
- 19.
QS, p. 25.
- 20.
QS, p. 164.
- 21.
This is a matter of vital importance to the contemporary conception of justice. It brings up the issue of the proper frame within which to consider substantive questions of justice. See, for instance, N. Fraser, “Reframing Justice in a Globalizing World”, (2005), 36 of the second series New Left Review, pp. 69–88.
- 22.
The notion of comprehensive subsidiarity refers to how representative democracy is supplemented with extensive processes of open and effective deliberation (QS, p. 154).
- 23.
“(T)he members of a nation are as such in principle entitled to effective organs of political self-government within the world order of sovereign or post-sovereign states.” (QS, p. 173).
- 24.
QS, p. 186.
- 25.
QS, p. 191.
- 26.
Neil MacCormick spoke of a liberal version of nationalism as early as 1982, in his Liberal Right and Social Democracy, (Oxford: Oxford University Press, 1982). See, also, Joxerramon Bengoetxea’s chapter in this volume. For the distinction between “first” and “second-wave” nationalism, see Norman, note 15 supra.
- 27.
Consider notably W. Kymlicka, Liberalism, Community, and Culture, (Oxford: Oxford University Press, 1989); Multicultural Citizenship. A Liberal Theory of Minority Rights, (Oxford: Clarendon Press, 1995); Finding our way, (Oxford: Oxford University Press, 1998); Norman, note 15 supra; A.-G. Gagnon and J. Tully (eds), Multinational Democracies, (Cambridge: Cambridge University Press, 2001). I say “arguably” because I would also claim that the key reference case for theorists of multinational federalism, namely, Canada, has clear built-in cosmopolitan traits.
- 28.
L.C. Blichner and L. Sangolt, “The Concept of Subsidiarity and the Debate on European Cooperation: Pitfalls and Possibilities”, (1994) 7 Governance, pp. 284–306, at 289. This also has a clear affinity to MacCormick’s conception of subsidiarity; see QS (notably Chapter 9); see, also, his Institutions of Law, (Oxford: Oxford University Press, 2007), p. 266.
- 29.
See J. Bohman, Democracy across Borders. From Dêmos to Dêmoi, (Cambridge MA: The MIT Press, 2007).
- 30.
QS, p. 190.
- 31.
N. MacCormick, note 7 supra, p. 132.
- 32.
But it should be noted that regional nationalism, in MacCormick’s framework, has a kind of federal-democratic role. With regard to the Scottish case, he notes, in his “Independence and Constitutional Change,”, note 6 supra, p. 53, that: “the centralization of political and economic power round the centre of government, which necessarily characterises modern states, makes it necessary to diversify centres of government. Centralization in its present form will reduce Scotland the worst sort of provincialism and parochialism, unless a real centre of power is established in Scotland.” To this effect, it should also be added that Scotland already had its own legal system and a distinctive political culture, related to the specific path the reformation took in the most northern parts of Great Britain.
- 33.
See R. Beiner (ed), Theorizing Nationalism, (New York: SUNY Press, 1999), p. 5.
- 34.
Jacob Levy has cogently argued that: “‘Nation’ does not denote a kind of community describable apart from nationalist projects and the claim of national self-determination. Once we have a sociologically persuasive account of where a ‘nation’ is, we find that one way or another the political mobilization that nationalist theory is supposed to justify is already part of how we have picked the community out. In other words the political program of nationalism is built into the category of nation to begin with; the normative argument is always circular.” J. Levy, ‘National Minorities Without Nationalism’, in: A. Dieckhoff (ed), The Politics of Belonging: Nationalism, Liberalism, and Pluralism, (Lanham MD: Lexington Press, 2004), pp. 155–174, at 160.
- 35.
B. Yack, “The Myth of the Civic Nation”, (1996) 10 Critical Review, pp. 193–211.
- 36.
Ibid., p. 206.
- 37.
He notes that: “Our sense of identity arises from our experience of belonging within significant communities such as families, schools, workplace communities, religious groups, political associations, sports clubs – and also nations, conceived as cultural communities endowed with political relevance. A nation is constituted by a sense in its members of important (even if internally diverse) cultural community with each other based in a shared past, a ‘heritage’ of common ways and traditions, including at least some of a family of items such as language, literature, legend and mythology, music, educational usages, legal tradition, and religious tradition.” (QS, p. 186)
- 38.
The two latter points are not only among the designative features of liberal nationalism, they are also positions that the entire body of “second-wave” nationalist theorising has embraced.
- 39.
MacCormick could also point to the very resilience of Scotland here, as reflected in its retention of its own legal system, and notably its own common law tradition.
- 40.
MacCormick, Institutions of Law, note 28 supra, underlines the central role of what we may label political culture as a central underpinning of law. An important issue, here, is how prominent is the political, as opposed to the cultural, component of such an underpinning element.
- 41.
See Kymlicka 1998, note 17 supra, and Norman note 15 supra, Chapter 2, for two comprehensive lists of relevant factors.
- 42.
In this scenario, if nationalism were to figure as a necessary complement to law, and law is understood as a social institution, we should expect nationalism both to underpin and to give sustenance to a political culture that supports law-abidance. Furthermore, we should expect nationalism to render such an underpinning through a unique or distinct type of – national – support. This would mean that law would be socially embedded; that this social embedding would be vital to law’s stability as a socially regulatory mechanism; and that the social embedding would be steeped in a distinct national culture within a distinct national community.
- 43.
There is a clear ambiguity here, however. Norms do prescribe certain courses of action and rule out others, and, in doing so, they promote certain values and world-views and downplay other.
- 44.
QS, p. 8. He further notes that “the characteristic of an institutional normative order is that competent judgement in it is conclusive within its own order, except to the extent that there is coordinated cross-recognition of different orders”. Ibid.
- 45.
Consider the strong emphasis on habits about rules and of how rule following becomes routinised behaviour because the human mind is in the habit of forming habits, (see MacCormick Institutions of Law, note 28 supra, Chapter 4.
- 46.
Ibid., p. 304.
- 47.
QS, p. 173.
- 48.
MacCormick, Institutions of Law, note 28 supra. See, also, his Rhetoric and the Rule of Law, (Oxford: Oxford University Press, 2005.
- 49.
Through citizenship provisions, the law programmes the access of immigrants to the polity, and erects high barriers against collective, and, notably, territorial, exit. It also programmes the system of education and socialisation, the main levers for inculcating nationalism.
- 50.
See S. Mulhall, “Articulating the Horizons of Liberalism: Taylor’s Political Philosophy”, in: R. Abbey (ed), Charles Taylor, (Cambridge: Cambridge University Press, 2004), pp. 105–126.
- 51.
See, in particular, Taylor, Sources of the Self: The Making of the Modern Identity, note 18 supra.
- 52.
See Taylor, Human Agency and Language, note 18 supra, Chapter 2.
- 53.
Taylor, Sources of the Self: The Making of the Modern Identity, note 18 supra.
- 54.
Ibid.
- 55.
Ibid.
- 56.
Ibid., Chapter 1.
- 57.
C. Taylor, Reconciling the solitudes: Essays on Canadian federalism and nationalism, (Montreal & Kingston: McGill-Queen’s University Press, 1993), and “The Politics of Recognition”, in: C. Taylor and A. Gutmann (eds), Multiculturalism, (Princeton NJ: Princeton University Press, 1994), pp. 25–74.
- 58.
See Norman, note 15 supra.
- 59.
See Arash Abizadeh, “Does Liberal Democracy Presuppose a Cultural Nation?”, (2002) 96 American Political Science Review, pp. 495–509, at 507.
- 60.
Consider, notably, Miller, note 7 supra, p. 96.
- 61.
R. Johnston, K. Banting, W. Kymlicka and S. Soroka, “National Identity and Support for the Welfare State”, (2010) 43 Canadian Journal of Political Science, pp. 349–377, at 351.
- 62.
A highly instructive account of how such a process of conceptual retooling took place over time in connection with the development of the modern nation-state is provided by Michael Oakeshott in his “The vocabulary of the modern European state”, (1975) 2–3 Political Studies, pp. 319–341, and (1975) 4 Political Studies, pp. 409–415.
- 63.
See U. Beck, “Toward a New Critical Theory with a Cosmopolitan Intent”, (2003) 10 Constellations, pp. 453–468, at 454.
- 64.
S. V. LaSelva, The Moral Foundations of Canadian Federalism, (Montreal & Kingston: McGill-Queen’s University Press, 1996), p. 26.
- 65.
D. J. Elazar, Federalism as Grand Design: Political Philosophers and the Federal Principle, (Lanham MD: University Press of America, 1987); Exploring Federalism, (Tuscaloosa AL: The University of Alabama Press, 1987); LaSelva, note 64 supra.
- 66.
Elazar, note 65 supra.
- 67.
See Daniel J. Elazar, “From Statism to Federalism: A Paradigmatic Shift”, (1996) 17 International Political Science Review, pp. 417–429.
- 68.
QS, p. 149.
- 69.
Consider for instance Protocol 2 of the Treaty of Lisbon (on subsidiarity and proportionality), which provides national parliaments with a subsidiarity check on Union legislation. Lisbon Treaty Consolidated, OJ C 115, Volume 51, 8 May 2008. See A. Føllesdal, “Subsidiarity and democratic deliberation”, in: E. O. Eriksen and J. E. Fossum (eds), Democracy in the European Union, (London: Routledge, 2000), pp. 85–110. Justus Schönlau in the recently published paper, “The Committee of the Regions – The RECON Models from a Subnational Perspective”, RECON Working Paper, 2010/10, shows some modest gains for the Committe of Regions in the Treaty of Lisbon but the general picture is still one of subsidiarity privileging the Member State, not the regional, level.
- 70.
QS, p. 167.
- 71.
See J. Habermas, “Struggles for Recognition in the Democratic Constitutional State”, in: C. Taylor and A. Gutmann (eds), Multiculturalism, (Princeton NJ: Princeton University Press, 1994); Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: The MIT Press, 1996); The Inclusion of the Other, (Cambridge MA: Polity Press, 1998); “Constitutional Democracy: A Paradoxical Union of Contradictionary Principles”, (2001) 29 Political Theory, pp. 766–781; and The Postnational Constellation, (Cambridge MA: The MIT Press, 2001). Patchen Markell, “Making Affect Safe for Democracy? On ‘Constitutional Patriotism’”, (2000) 28 Political Theory, pp. 38–63, detects two different readings of constitutional patriotism in Habermas’ works. See, also, J. E. Fossum, “Constitutional patriotism: Canada and the European Union”, in: P. Mouritsen and K.E. Jørgensen (eds), Constituting Communities – Political Solutions to Cultural Difference, (London: Palgrave, 2008), pp. 138–161.
- 72.
Craig Calhoun, “Imagining Solidarity: Cosmopolitanism, Constitutional Patriotism, and the Public Sphere”, (2002) 14 Public Culture, pp. 147–172.
- 73.
See John Erik Fossum & Agustín José Menéndez, The Constitution’s Gift – A Constitutional Theory for a Democratic European Union (Lanham, MD: Rowman and Littlefield, 2011). There, we develop and apply the theory with reference to both the European Union and Canada.
- 74.
This is, indeed, the same structural reason that MacCormick famously employed to turn von Hayek’s argument on its head and sustain a defence of the welfare state against neo-liberals. See “Spontaneous Order and the Rule of Law: Some Problems”, (1989) 2 Ratio Juris, pp. 41–54.
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Fossum, J.E. (2011). Nationalism, Patriotism and Diversity – Conceptualising the National Dimension in Neil MacCormick’s Post-sovereign Constellation. In: Menéndez, A., Fossum, J. (eds) Law and Democracy in Neil MacCormick's Legal and Political Theory. Law and Philosophy Library, vol 93. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-8942-7_13
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