Sectarian scholarship

Nationalism, Racism and the Rule of Law
February 28, 1997

This collection of papers on nationalism, racism and the law comes out of the critical legal studies movement in Britain. Its interdisciplinary approach places it firmly within the Anglo-American, English-language "modernist left", possibly the least threatened ethnic group on the planet earth.

The group's main experience of nationalism/racism is British imperialism and vague impressions of Nazism. The aim is to consider the relation of nationalism to the rule of law. There are three parts: theoretical, East-West and imperialism. The strongest part is the third, while the second is patchy. The theoretical part is very problematic.

The focus of the third part is colonial settlement in Aotearoa/ New Zealand (Jane Kelsey) and South Africa (Martin Chanock), and its impact on Victorian Britain (Maria Drakopoulou). Kelsey and Drakopoulou throw light on the historical context of international and comparative law studies in Britain. The second part, on Europe, lacks a clear framework. There is a careful study of the present behaviour of the Czechs towards their gypsy minority by Jiri Priban, and of the Latvians towards their primarily Russian minority by Bill Bowring. Both are as sensitive to the vulnerabilities of majorities as of minorities and suggest open-ended legal agendas. There are erudite, imaginative but rather inconclusive discussions of European Union citizenship by Roel de Lange and contemporary English legal identity by Eve Darian-Smith.

Beyond this point the book takes on a polemical, strident tone. Although it is not so clearly stated, one might guess that, for "the left", nationalism equals some variant of Nazism. So the protection of "innocents" - minorities, immigrants, refugees - from "the Nazis" is central.

There are extensive studies of refugee law by Abdul Paliwala, Patricia Tuitt and Audrey Kobayashi. These show familiarity with administrative and political practices, but the perspective is very much that of the most theoretical chapter, by the editor Peter Fitzpatrick.

For Fitzpatrick, in his chapter "Nationalism as racism", nationalism is a conspiracy - the official realm imagines that which the nation's inhabitants supposedly imagine, even if they are not yet doing so, while a gloss on this is the view that the political opinion element of the definition of a refugee "... conjures up a picture of the typical male political dissident, propaganda leaflet in one hand and grenade in the other..."

Margaret Thatcher's unhelpful sentiment that the British people resent being swamped by alien cultures is characterised as a "purer cultural/racist contention which is the coin borrowed from the fascist right of British politics" (Paliwala). The rule is that "political gains and issues of international diplomacy have always taken precedence over the plight of the people affected by policies and legislation" (Kobayashi).

The style of such sectarian scholarship will, inevitably, be "doctrinal". The sacred authors are, among others, Derrida, Foucault, Gellner, Luhmann and Zizek. Michael King cites Luhmann as authority for the proposition that modern societies are functionally structured while traditional societies tend to be based on class, race and gender stratifications. This bland "theory" explains how it is that the law "reinforces those aspects of Islam which signify acceptable differences, while neglecting or rejecting others which offend liberal sensibilities" (King).

The difficulty is that the particular ethnic group which has produced this volume acknowledges neither its own power nor its own historicity. In a typical turn of phrase Fitzpatrick remarks "Gellner's dictum that, in the creation of national identity, 'any old shred and patch would have served as well' may be an exaggeration, but it is a valid exaggeration." This reminds me of the dictum of James Joyce: "the use of the homeborn shillelagh as an aid to calligraphy shows a distinct advance from savagery to barbarism."

Anthony Carty is professorof international law, University of Derby.

Nationalism, Racism and the Rule of Law

Editor - Peter Fitzpatrick
ISBN - 1 85521 554 3
Publisher - None
Price - £37.50
Pages - 223

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