Legal History, the Common Law and “Englishness” Bv David Sugarman “But in spite of all temptations, To belong to other nations. He remains an Englishman!” W. S. Gilbert, H.M.S. Pmaforc I The nation state and national identity may serve as a haven from the increasing uncertainties and fluctuations of the outside world, providing a niche from which to speak. Less frequently, they may also serve to recognise, and even celebrate, difference. They appear natural, stable, objective and predictable. Yet it is increasingly acknowledged that the creation of a national identity is not natural, absolute and fixed but necessarily relational, artificial and manufactored over time. Nation-building is a process that is contingent, indeterminatc, uneven and complex. It seeks to fabricate a mythology of timelessness and unchangeability while manufacturing a facade of unity. Identity and community are created and recreated in opposition to a common enemy or “others” which are changeable: Protestants against Catholics, whites against blacks, the West against the Orient etc. Nationalism’s politics of empowerment and citizenship presume disenfranchisement and expropriation at home (as through discourses of class, region, gender, religion and race) and abroad (as through colonial and imperial discourses). In Benedict Anderson’s striking phrase, nations and nationalism “turn chance into destiny”. This occurs regardless, indeed, because of their often profound ambiguities and simplifications. Indeed, the discourses of the law help to sustain and reflect this elasticity and durability. Constitutional discourse is an extreme example of this phenomenon within the field of law. Its protean fluidity, aided and abetted by its exceptionally wide-ranging foundational sources, enables individuals and groups to strategically appropriate the languages of the constitution in political struggles in order to further or contest diverse uses and goals.* ' Sec, generally, Anderson, B. Imagined Communities. London: Verso, 1983; Newman, Geraid. The Rise of English Nationalism. New York: St. Martin’s Press, 1987; Gilroy, Paul. 'There Ain’t No Black in the UnionJack’. The Cultural Politics of Race andNation. London: Hutchinson, 1987 and The Black Atlantic: .Modernity and Double Consciousness. Cambridge: Harvard Universitv Press, 1993; Cotterrell, Roger. “Some Aspects of the Communication of Constitutional Authoritv.” In Lazi' as Communication, edited bv David Nelken. Aldershot: Dartmouth, 1996 129— 51; Eley, Geoff, and Ronald Grigor Sunv, eds. Becoming National: .4 Reader. NewYork: Oxford University Press, 1996. 13
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