'The Constitution of Identity: New Modalities of Nationality, Citizenship, Belonging and Being' by Eve Darian-Smith in Austin Sarat and Patty Ewick (eds)
Wiley Handbook of Law and Society (Wiley, Forthcoming) comments
In recent decades there has emerged a large and diverse body of sociolegal literature engaging in
identity politics, or what some theorists call the politics of difference (Taylor 1992:38; see also Young
1990; Apiah 2006). Drawing on the theories and insights of scholars working in cultural studies,
feminist studies, sociology, anthropology, geography, political science, history and law, this literature
grew out of the civil rights movements of the 1960s and 1970s and gained momentum through the rise
of new social movements and debates over multiculturalism in the 1980s and 1990s (Calhoun 1994).
More recently, sociolegal literature on the politics of identity has had to expand in scale and reach in
seeking to analyze the complex relations between individuals and the nation-state in the context of
globalization (Lacey 2004).
expansion speaks to the ways people conceptualize their legal
subjectivity and relations to others in emerging socio-political contexts that include the mobilization of
global social movements, an expanding international human rights regime, and mass migrations of
people that makes some people “illegal” and “stateless” and includes millions of refugees fleeing wars,
poverty, and various natural and man-made disasters (Dauvergne 2008). This expansion in the
sociolegal literature also reflects new socio-political contexts of a less obviously global nature present
in subnational regions, global cities, borderlands, prisons, immigration offices, hospitals and tribal
reservations (Perry and Maurer 2003). These trans-state and sub-state contexts suggest a diverse
range of legal relations brought about by new labor markets, new industries and commodities, new
forms of secular and religious violence, new cultural and sexual politics, new reproductive
technologies, new materialist understandings of agency, and a rethinking of the autonomous
subject/citizen with increasing attention being given to a blurring of conventional divides between the
human and non-human.
In this essay I seek to highlight some of the sociolegal scholarship engaged in the constitution of legal
identities within state and non-state contexts, and point to some of the emerging challenges and new
directions scholarly conversations are moving. The essay is not meant to present an exhaustive
summary of the literature but rather an outlining of the analytical approaches in which notions of
identity vis-à-vis the nation-state have been thought about in the past, how and in what ways these
approaches may be shifting in the present, and what we may as sociolegal scholars need to be
thinking about as we confront the future. Whether we think of ourselves as living in a postnational
moment or not, what is clear is that the idea of a person’s legal subjectivity and identity being
constituted solely through the geo-political boundaries of the nation-state is no longer a given (Purvis
and Hunt 1999). In other words, we can no longer pretend that the modernist concepts of “individual”
and “state” are stable categories and share clearly demarcated relations that up until relatively
recently have underscored the idea of state nationalism and a person’s sense of personal and
collective belonging vis-à-vis a national polity. In short, how people conceptualize themselves is now
widely acknowledged as not reducible to simplified and essentialized individual and group identities
recognized in law through state policies and institutions. ...
In the discussion above, I outlined two sociolegal approaches to examining the constitution of legal
identity – postcolonial approaches and democratic liberal approaches. These approaches are not
mutually exclusive and share many overlapping concepts, theories and methods. Perhaps the
greatest commonality is that both bodies of literature are deeply engaged with the concept of the
nation-state and tend to ultimately affirm its normative and analytical centrality. In the first postcolonial
approach, the nation-state is the primary actor on the international battlefield over which legal identity
is fought between states and groups of peoples demanding the same legal status as states. In the
second liberal approach, the nation-state is the geo-political container in which various peoples fight
for self and collective recognition of their legal identities. As we move into the first half of this century,
both of these approaches will undoubtedly remain critical discursive terrains of legal and cultural
conflict, tension, and negotiation. However, both will also have to contend with new political pressures
being brought to bear on the constitution of legal identity that are attracting attention in sociolegal
scholarship and more general intellectual conversations.
Below I briefly point to three emerging lines of inquiry that are forcing some law and society scholars
to reassess their thinking regarding the constitution of legal identity. These are (i) the concepts of
postnational and denational citizenship and related issues of statelessness being experienced by
millions of refugees many of whom cannot imagine, let alone claim, a national legal identity, (ii) the
prominence of human rights discourse and the degree to which international legal institutions are
impacting the constitution of legal identities, and (iii) emerging frontiers of technology and new
materialist thinking which are forcing scholars to think differently about relations of sociability and the
blurred divides between humans and non-humans and their respective relational legal identities.
'The Subjectification of the Citizen in European Public Law' by Marco Dani
investigates
the condition of the individual qua citizen as recognised and shaped by national constitutional democracies and supranational law, the legal and political orders constituting European public law. It firstly spells out the notion of ‘subjectification’ and its peculiar manifestation in the context of European public law. Then, it offers an excursus on the subjectification of the citizen by looking at its main constitutive dimensions: belonging, rights and participation. The excursus examines three distinct phases of the evolution of European integration. Firstly, it looks at the social state era and the affirmation of the constitutional subject, a type of citizen devised essentially within national constitutional democracies with supranational law offering just additional rights for the economically active. Secondly, it explores the transformation of the constitutional subject prompted by the expansion of supranational law and the emergence of the ‘advanced liberalism’ agenda. Finally, the paper evaluates the condition of the citizen during the financial crisis, a stage which probably witnesses the twilight of the constitutional subject as conceived of in the social state era. The upshot of this excursus contradicts more conventional accounts for subjectivity in the EU emphasising a civic turn in the understanding of the individual: if the relationships between individuals and the governmental projects constituting European public law are considered, the evolution of European integration is paralleled by an involution of citizenship. Or, at least, of the idea of citizenship imagined in national constitutional democracies in post-World War II.
