The Constitution of Identity: New Modalities of Nationality, Citizenship, Belonging and Being
Author | Eve Darian-Smith |
Pages | 351-366 |
The Handbook of Law and Society, First Edition. Edited by Austin Sarat and Patricia Ewick.
© 2015 John Wiley & Sons, Inc. Published 2015 by John Wiley & Sons, Inc.
If the modern “problem of identity” is how to construct an identity and keep it
solid andstable, the postmodern “problem of identity” is primarily how to avoid
fixation andkeep the options open.
Zygmunt Bauman, From Pilgrim to Tourist; or
A Short History of Identity (1996: 18).
Introduction
In recent decades there has emerged a large and diverse body of socio‐legal literature
engaging in identity politics, or what some theorists call the politics of difference
(Taylor 1992: 38). Drawing on the theories and insights of scholars working in
cultural studies, feminist studies, sociology, anthropology, geography, political sci-
ence, 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. More recently, socio‐legal
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). This expansion speaks to the ways people
conceptualize their legal subjectivity and relations to others in emerging sociopolit-
ical contexts that include the mobilization of global social movements, an expanding
international human rights regime, and mass migrations of people that make some
people “illegal” and “stateless” and includes millions of refugees fleeing wars, poverty,
and various natural and man‐made disasters. This expansion in the socio‐legal
literature also reflects new sociopolitical contexts of a less obviously global nature
The Constitution of Identity
New Modalities of Nationality, Citizenship,
Belonging and Being
Eve Darian‐Smith
23
352 Eve Darian‐Smith
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 reli-
gious 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 chapter I seek to highlight some of the socio‐legal 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 in. The chapter is not meant to present an exhaustive summary of the liter-
ature but rather an outlining of the analytical approaches in which notions of iden-
tity 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 socio‐
legal scholars need to be thinking about as we confront the future. Whether we
think of ourselves as living in a post‐national moment or not, what is clear is that
the idea of a person’s lega l subjectivity and identity being constituted solely through
the geopolitical boundaries of the nation‐state is no longer a given. 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 simpli-
fied and essentialized individual and group identities recognized in law through
state policies and institutions.
Rethinking the Social Contract amidst
New Assemblages of Power
Related to the breaking down of “individual” and “state” as stable legal concepts is
the breaking down of the notion of a social contract between citizens and nations.
The idea of a social contract is a core principle of liberal theory. From the seven-
teenth century, social contract theory has dominated Western political theor y with
the writings of philosophers such as Thomas Hobbes, John Locke and Jean‐Jacques
Rousseau. Social contract theory presupposes an agreement between individuals
and the state whereby people, through elected representatives, submit to a “general
will” to live together as a collective community and abide by state laws. In return,
people are granted certain civil and political rights and a limited voice in the running
of the country.
Despite scholarly critics,1 the idea of a social contract existing between governments
and citizens has maintained popular legitimacy in most Western democracies, at least
until recently. Now with the stark realities of neoliberal economic policies, the
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