Citizenship, national membership and constitutional law

At a primary level, constitutionalism is centred around a conceptual subject that has contributed to the formation of democratic nationhood both through its normative and its functional-integrational impact. This subject is embedded in the constitutional construct of the citizen. In this construct, constitutional reflection first took shape as a description of society capable of projecting normative claims in categories that reinforced the functional preconditions their own realization, so that early constitutional thought expressed norms that stimulated the processes of integration that allowed subjects implied in these norms to become real. To this degree, the primary construct of constitutionalism articulated a real subject, which created both normative and objective conditions required to sustain democracy.

In parts of Europe and other states under European influence, the concept of the citizen had, by circa 1800, converged around three principles, each of which proved fundamental to the emergence both of national democracies and of national societies. It expressed the assumption that persons in society must possess (a) rights to occupy physical space within a demarcated societal territory, usually with rights to own land and property; (b) certain procedural rights, especially rights regarding legal protection, formal equality and personal integrity before the law; (c) rights to participate, in notionally equal fashion, in procedures that produce the laws that shape the life of the society in question. Such principles only gradually acquired meaningful social purchase, and their impact on societal structure usually took at least a century to become fully palpable. However, from approximately 1800 onwards, the construction of the citizen as social subject had tangible material consequences for the form of society.

The first outcome of these principles was that societies configured around citizenship evolved as increasingly integrated systems of interaction, in which relations between persons were structured in legal form. From the outset, the rise of citizenship meant that social organization was detached from personalized patterns of coercion, typically those exemplified in European feudalism and analogues to feudalism outside Europe, in which personal obligations were dictated by status hierarchies based in land ownership and tenure.Footnote ³¹ Gradually, the concept of the citizen established the expectation that persons in society were subject to the same normative rules, supported by claims to general validity, such that social action was increasingly controlled by uniform legal principles. The principle that social obligations need to reflect norms with general validity was already implied, inchoately, in patterns of social organization that characterized the territorial states of early modern Europe. In fact, the mode of territorially delineated governance usually rather crudely defined as ‘absolutism’ was centred in a rough pre-construction of national citizenship, as it severed social obligations from variable personal power, it placed all social actors under uniform higher laws, and it defined the legitimacy of the political system in society in common secular categories.Footnote ³² By the late 18^th century, however, the expectation that interpersonal obligations should be determined by general laws had been strengthened in much of Europe, and few societal domains were not in some way subject to centralized legal norms.Footnote ³³ Increasingly, further, the expectation that law must be generally valid was accompanied by the expectation that it had to be founded in general interests or rational prerogatives, shared by all members of society.Footnote ³⁴ On this basis, implicitly, society itself became a system of public order, in which interaction between persons was shaped by legal principles of a generally accepted nature.

In consequence, further, societies configured around norms of citizenship acquired a progressively fixed geographical form, and their material-territorial structure was defined through expectations implied in citizenship. Citizenship contains the central implication that the shared legal obligations to which it gives rise apply to persons in one physical territory, and, as they presuppose general acceptance, the same obligations do not necessarily apply to persons situated outside this territory. To this degree, citizenship formed the essential focus of the modern nation state, and the identification of a state with a specific socio-territorial space originated in the fact that institutions imposing duties and obligations were underpinned by principles of citizenship. In this respect, the basic substance of nationhood lies, not solely in the simple physical territory of the nation, but rather in the fact that this territory is a legally constituted social domain, whose inhabitants are bound by obligations of an intrinsically public character.

On both counts, the concept of citizenship underscores the modern nation.Footnote ³⁵ National society was initially produced by processes of integration driven by citizenship, in which social order was formed through the emergence of laws with implicit claims to public authority. However, the greatest significance of citizenship in shaping modern society is visible in society's political dimension, and it was as the pivotal term in early constitutional doctrine that the subject of the citizen impacted most transformatively on societal form.

The underlying design of the modern national political system was created in the early constitutional revolutions of the 18^th century in the British colonies in America and in France, and this design clearly reflected the growing importance of citizenship norms.Footnote ³⁶ The significance of citizenship was expressed – initially – in the fact that, prior to the popular revolutions from the 1770s to the 1790s, it was increasingly presumed that the political order of a society ought to be defined by higher-order laws, recognized by all people as having a collective, public foundation.Footnote ³⁷ In consequence, the legitimate political system was already envisioned as a national political system, ordered under laws acknowledged by and applied to all members of the national society. To this degree, the emergent political system of early national societies transposed into coercive form the basic expectations expressed in the concept of citizenship. During the revolutionary decades, then, citizenship became an emphatic term for constructing political legitimacy. At a general level, ideas of citizenship promoted revolutionary theories of popular sovereignty, implying that the political system obtains legitimacy if its legal order is willed into being by collective decisions of citizens, acting in the form of a nation, or a people. In this respect, the national people was imagined as a self-legislating sovereign actor, and legitimate laws were observed as manifestations of popular sovereignty. More specifically, ideas of citizenship were phrased in clearly constitutional concepts, especially in the revolutionary theory of constituent power.Footnote ³⁸ Constitutional doctrines in revolutionary Europe translated the theory of popular sovereignty into the claim that the people exercises its sovereignty as a constituent body, standing prior to all ordinary law, defining the primary norms which give legitimacy to the polity and by which actors in the polity are bound. In this theory, obligations arising from the constituent power integrate all society in a common sovereign national legal-political order.Footnote ³⁹ On this basis, the modern political system was envisaged as an institutional order that originated in constitutional commitments of sovereign national citizens – in which citizens acted as the subjective authors of the laws that objectively determined their lives. In each respect, the concept of the citizen spelled out an original norm of constitutional immediacy between actors in national society and the national state, such that a direct constitutional nexus between the state and citizen, not subject to attenuation by intermediary persons or organizations, formed the foundation of the state's legitimacy and society's legal order.Footnote ⁴⁰

The constitutional principles resulting from citizenship in the 18^th-century revolutions played a central role in imprinting a broad national democratic design on society, and the normative importance of citizenship in the revolutionary era reinforced earlier functional-integrational implications of citizenship.

This can be seen in several ways.

First, these constitutional principles meant that the political system was able to assume generalized legitimacy for its functions, and it became possible for actors in the political system to insist that their laws possessed primary, decidedly public authority in all parts of society. It was repeatedly declared in the 18^th-century revolutions that, as it was authorized by citizens, the political system of society had to be categorically separated from local – usually residually private or privilege-based – organs of coercion.Footnote ⁴¹ As a result, political institutions acquired a distinctive hierarchical position in their relation to centres of power located outside the polity: for example, to organizations attached to localities, estates or families. In turn, this meant that society as a whole began to converge, or to become focally centralized, around a clearly identifiable aggregate of political institutions, able to enforce political directives for society as a whole. Norms articulated by constituent actors were also used to define the essential functions of public agents, which meant that public offices entailed the discharge of duties of a specific public nature, and they could not be traded as privileges or private goods.Footnote ⁴² Together, these processes meant that political institutions acquired attributes of inner-societal sovereignty, and they exercised powers quite distinct from those vested in other associations.Footnote ⁴³

Over a longer period of time, second, these constitutional principles had the consequence that the capacity of public institutions for integrating actors across national society was extended. The fact that the state was constructed around an immediate legitimational nexus with persons (citizens) in society meant that the legitimacy of the state became increasingly contingent on direct interactions with individual agents. This also meant that a growing quantity of social exchanges was subject directly to political regulation, as interests of particular persons and particular groups acquired heightened political relevance. One result of these processes, in turn, was that state institutions required more revenue and more extensive instruments of fiscal extraction to perform regulatory functions, which further heightened the engagement of the state with single persons.Footnote ⁴⁴ The legitimational importance of citizenship almost invariably increased the societal penetration of public institutions, intensifying the immediacy of the lines of interaction between government and society.

Third, these constitutional principles triggered increased communication between the political system and persons in society, and social actors were more comprehensively incorporated in nationalized political roles and functions.Footnote ⁴⁵ The legitimational force of citizenship meant that actors in the political system usually constructed mechanisms to facilitate the participation of citizens in certain political responsibilities, especially in the production of legitimacy for the laws by which they were bound. In particular, this led to the consolidation of institutions intended to construct legitimacy in the form of collective consensus, and states legitimated by citizenship norms usually evolved institutions able to represent citizens directly to office-holders within the political system.Footnote ⁴⁶ At the same time, this led, almost immediately, to the proliferation of organizations later known as political parties, which served to transmit prerogatives in different spheres of society towards the political system, and so to authorize legislation through acts of concerted political mobilization.Footnote ⁴⁷ The latter process played a singularly important role in the consolidation of national societies on a fully national, integrated pattern.Footnote ⁴⁸

In each respect, the formation of modern national societies has its origins in a process of constitutional norm construction, in which members of national populations imagine themselves as distinctively defined political actors (citizens), able to authorize laws for society as a whole. On this foundation, national societies evolved as systems of integration, centred around legal and political institutions with sovereign powers, usually tending to assume at least some democratic emphases.Footnote ⁴⁹ Initially, most societies took the form of nations, defined by broad processes of integration, and of democracies, defined by broad processes of shared norm creation, as parts of the same structural-integrational process. As such, the normative and the functional elements of national society were, historically, integrally connected, and these elements were linked together in the core construct of constitutionalism – in the political subject of the citizen. The rise of constitutional law, which distilled concepts of citizenship into the theory of constituent power, was – initially – central both to the normative formation of society on a democratic pattern and to the functional construction of society as a system of national integration, able to sustain early patterns of democratic agency. In its basic elements, modern society was formed by constitutional subjects, in which citizenship imprinted a distinct integrational form on societal structure.

The antinomies of citizenship

Despite these deep connections between constitutional norms and socio-political integration, we can observe certain critical antinomies in the normative constructs that underlie national-democratic societies. Indeed, the concepts of legitimacy around which democratic nations first developed often had the secondary, at times paradoxical result that they also weakened the functional structures of national societies and their institutional orders. From the outset, as mentioned, the constitutional vocabulary of national citizenship and popular sovereignty contained legitimational claims, expressed at the normative level, which, at the functional-structural level, obstructed the processes of national institutional integration and nation building more widely, to which they otherwise contributed.

The first core antinomy inherent in constitutional concepts linked to citizenship results from the fact that, in its classical construction, the theory of national citizenship did not confer determinate form on the citizen that was constitutionally expected to bring legitimacy to the functions of government. In early constitutional doctrine, the citizen was projected as a simple member of the sovereign nation, defined generically as an agent authorized to shape the legal order of the nation owing to his or her (almost always his) inherent attributes of freedom, equality and territorial membership.Footnote ⁵⁰ In this respect, the vocabulary of national citizenship created a series of deeply unsettling problems for actual constitutional practice and for actual processes of national integration and democratic state formation.

At one level, as discussed, the concept of the citizen underscored the growth of political institutions with sovereign status, able to integrate an increasingly large proportion of national citizens. Yet, the fact that the citizen was constructed in socially indeterminate categories meant that, as national political institutions expanded their sovereign force into society, they were required to integrate and, to extract legitimacy from, citizens in a form that was ill-matched to their original constitutional definition. By the later 19^th century, most states in Europe possessed moderately extended electoral franchises, and, in most societies, citizens had been partly incorporated in the political systems on which they conferred legitimacy. By 1918, such incorporation had frequently reached an advanced level, so that, by this juncture, many states in Europe and some in the American continent were legitimated by immediate reference to their (still primarily male) citizens. In this process, however, citizens increasingly appeared to political institutions, not as equal rights-holding agents defined by simple membership in a national community, but as manifestly unequal agents, attached to potentially hostile positions within national systems of social stratification. In consequence, as they penetrated further into society to extract legitimacy from citizens, national political institutions were obliged to manufacture their legitimacy, not by simply representing the collective will of their citizens, but through actions designed to mediate between opposing constituencies and to placate the more acute social conflicts that emerged between opposed citizenship groups.Footnote ⁵¹

In virtually all societies, national political institutions were ultimately unable to mediate conflicts between different factions of the national citizenry. In virtually every line of national state formation, the emergence of mass democracy created a situation in which political institutions collapsed as they reacted to expectations arising from the generalization of electoral citizenship as a legitimational norm. As broad electoral enfranchisement became the rule, most societies, either once or cyclically, entered a condition in which their political systems abandoned the attempt to reconcile rival citizenship claims, and dominant citizenship groups simply annexed the public apparatus of government to promote their own prerogatives.Footnote ⁵² In such situations, most states experienced a period of chronic institutional privatization, usually expressed in elite colonization of government, such that the integrational force (sovereignty) of national institutions was diminished.Footnote ⁵³ Inter-group conflicts of this kind were naturally not caused by constitutions, and their origins were not eminently constitutional. However, the fact that national governments were committed to mediating interests of citizens conferred political form on the divisions expressed in such conflicts, and it meant that legitimacy in the discharge of basic government functions presupposed both palliation and politicization of deep societal antagonisms. In most societies, political institutions were not capable of mediating, or even of mollifying, the inter-group tensions politicized by the original legitimational norm of the citizen.

The second core antinomy inherent in the constitutional concepts attached to citizenship is determined by the fact that, in these concepts, the sovereign citizen is imagined as an actor that stands in an immediate relation to the state. As explained, the close legitimational nexus between citizen and state originally drove the penetration of government bodies into the different functional domains in society, eliminating the countervailing force of local authorities; as such, it is vital to the integrational form of the national society. At the same time, however, the expectation of immediacy in the construction of the citizen led to acute crises in the functional consolidation of national societies, centred around, and integrated in, national political institutions.

In most societies evolving towards national form, the idea that the state is legitimated by an immediate relation to the citizen meant that demands for integration and representation in all parts of society converged in an unsettling manner around the political system. In particular, this idea concentrated exchanges between government and society around tightly constructed lines of communication, articulated through legislative bodies. Earlier constitutional theory almost invariably expressed the assumption that legislatures are the core institutions of government, and legislation in the popular interest is the defining act of legitimate public authority.Footnote ⁵⁴ On the path towards modern democracy, however, the focusing of legitimacy on legislative acts often proved illusory and destabilizing. As states assumed growing regulatory functions, legislatures usually lost efficacy in the production of legislation, and growing demands for regulation resulted in the proliferation of administrative units within the state, which absorbed many legislative responsibilities. In many early democracies, further, newly created administrative organs tended to coalesce with powerful structured organizations, tied to elite societal interests, which were then able to intervene in legislative procedures, often placing unsettling pressure on political institutions. These processes were frequent in democracies created after 1918.Footnote ⁵⁵ Moreover, the legitimational focus on legislatures meant that hostile social groups often attached their deep-lying social rivalries to contests over particular acts of legislation, so that single law-making institutions become foci for very densely articulated inter-factional conflicts. In many cases, this had the result that legislative institutions were unable to pacify social antagonisms, and they lost the power to generate consensual premises for legislation. In many cases, further, this meant that legislative institutions were susceptible to colonization by the more powerful actors in the balance of social conflict, and they collapsed in face of hostilities between the groups of citizens to which they owed their legitimacy. These occurrences were also frequent in early mass-democratic polities in the 1920s.Footnote ⁵⁶ Overall, national political systems that projected their legitimacy through the immediate transposition of the interests of national citizens into legislative outcomes rarely survived long, and, in most settings, the constitutional order of the state fractured in face of hostile groups in society demanding influence in the legislative process.

A third antinomy in the constitutional concepts connected to citizenship lies in the fact that modern citizenship has its origins in fundamental social conflicts, and it tends, necessarily, to intensify the force of social antagonisms around the state. In fact, the modern concept of the citizen is profoundly connected to military combat, and it expresses a legitimational principle that, historically, imprinted an intensely conflictual form on national societies and their political institutions.

The connection between citizenship and military combat is manifest in the fact that most national societies established integrated citizenship through war, and, in most national polities, citizens first appeared as subjects of legitimation in contexts determined by war. At the structural level, most societies originally acquired national form as citizens experienced inner homogenization and trans-sectoral assimilation through military activities. This occurred most obviously in societies undergoing civil war or wars of unification, in which war forcibly removed some societal and territorial divisions in nascent nations.Footnote ⁵⁷ In most societies, however, it was through shared participation in the military mobilization that citizens from different regions and different sectors in the same society first entered immediate – nationally formative – proximity to one another.Footnote ⁵⁸ Moreover, in most societies, under-included social groups typically obtained enhanced social and electoral inclusion, as full citizens, through military engagement.Footnote ⁵⁹ This usually occurred for one or two reasons. Sometimes this occurred because, in periods of warfare, governments required additional recruits, and they were prepared to offer expanded citizenship rights so that marginal groups would enter combat.Footnote ⁶⁰ Sometimes this occurred because governments wished to reward citizens for military sacrifices, often to avert domestic instability caused by the lack of such reward.Footnote ⁶¹ Obvious examples of increasing this can be seen in widening enfranchisement in Europe after 1918, and in the abolition of ethnically biased electoral laws outside Europe after 1945. Overall, most modern societies were consolidated as nations, primarily, through war or preparation for war. Societies with weak military capacity or limited experience in war were usually only weakly nationalized, and citizenship did not produce a hard integrated structure for society.Footnote ⁶²

In addition, the connection between citizenship and military combat is evident in the fact that the normative core of the modern national citizen first evolved, in revolutionary France and revolutionary America, through processes of profound societal militarization, in which persons acquired citizenship and exercised rights linked to citizenship as part of a process of military mobilization.Footnote ⁶³ In both these settings, citizenship practices and military engagement were not easily separable, and membership in the Republics that resulted from citizenship revolutions had an overtly military character, depending in part on the willingness of citizens to perform military service.Footnote ⁶⁴ In both settings, constitutionalism evolved as a doctrine that placed the active citizen at the centre of government, so that, for the first time, norms created through active participation of citizens formed the constitutional bedrock of government. In both settings, however, the citizens acquired rights of active participation in return for willingness to act as soldiers, so that the experience of becoming a citizen was not easily separable from the experience of becoming a solider. After the revolutionary period, then, the expansion of electoral rights was frequently tied to military conscription.Footnote ⁶⁵ In most 19^th-century nations, the deepening of democracy through increasing enfranchisement and the inner militarization of society through deepening conscription usually went hand in hand.Footnote ⁶⁶

The linkage of citizenship and military conflict typically had far-reaching implications for the formation of national society, depending on the nature of the conflict that forged national citizenship bonds. Generally, the results of this linkage challenged the processes of social integration that underpin the formation of national democratic societies, so that the basic construction of the citizen blocked the factual trajectory of democratic nation building required for the exercise of citizenship rights. Where citizenship was formed, or extended, through war with external adversaries, it was often envisaged as a very tight affective bond, connecting members of society directly to each other and directly to the political institutions that were conducting war. In many such cases, this intensified the presumption of immediacy in the relation between citizens and government, so that the legitimacy of government was tied to the expectation that citizens would be comprehensively incorporated in the political system. An important example of this can be found in World War I, after which the mass enfranchisement of male populations in Europe was widely accompanied by the conviction that the state should act as a primary guarantor of material wellbeing for all citizens. Where such expectations were subsequently disappointed, however, the terms of national citizenship often became matters of violent contest, prolonging military attitudes into peacetime.Footnote ⁶⁷ Where citizenship was formed through civil war, similarly, the lines of conflict that shaped the war usually persisted beyond the end of combat. In some societies emerging from civil war, holders of executive authority simply used their power to protract, at a diminished level of intensity, the conflict in which they originally acquired their positions.Footnote ⁶⁸ In other such societies, contests over citizenship remained enduringly affected by the oppositional interests first expressed in civil war, so that low-level civil war became part of everyday political life.Footnote ⁶⁹ Most states based in ideals of citizenship originated in situations marked by some aspects of civil war, and after their emergence, they retained a deeply militarized character. In the longer wake of 1789, for example, in most European societies, rival political groups explained their prerogatives in emphatically military terms. In many states, further, early political parties developed in military settings, and they were backed by groupings with military capacity.Footnote ⁷⁰ In interwar Europe, tellingly, most polities developed systems of electoral competition in which political parties were not categorically distinguishable from military units.Footnote ⁷¹ It is widely noted that in Latin America and Africa, the processes of national formation usually promoted by political parties were often strategically conducted by military organizations.Footnote ⁷²

Throughout modern history, in consequence, states legitimated by ideals of popular citizenship have usually, as discussed, assumed a democratic emphasis. However, the original form of polities founded in citizenship is military democracy. Globally, the military dimension in the modern idea of the citizen instilled a deep volatility in national political systems. On the path to democracy, most states have undergone protracted crises caused by the fact that their primary source of constitutional legitimacy – the national citizen – originated in military conditions. In most cases, further, conflict over the terms of citizenship resulted in the usurpation of political institutions by powerful elites, possessing greatest military potential, and in the resultant promotion of highly exclusionary citizenship practices, which then curtailed the integrational force of the political system in society.Footnote ⁷³ The form of citizenship in which popular sovereignty became real, in other words, was not, initially, experienced as a constitutional order marked by sovereign self-legislation or collective integration. On the contrary, it was experienced as a condition of intense societal militarization and deep institutional fragmentation.

In summary, the basic constructs of constitutionalism initially gave impetus to two separate sociological processes in modern society. These constructs promoted the formation of society, simultaneously, on a democratic design and a national design: they described political subjects engaged in law-making actions, and they created conditions of national integration in which these democratic subjects could appear and exercise sovereignty. In most cases, however, these processes initiated by constitutionalism did not approach completion, at least as long as constitutional concepts were articulated in classical national form. Most societies were eventually defined by the failure of both processes – by failed democratization and by failed nationalization. Most national societies that embarked on a path toward democratization arrived, ultimately, at a condition that fell short of government by sovereign peoples. Some such societies arrived at a state of intermittent democracy, in which short-lived periods of full political integration stimulated a brutal backlash amongst elites, who then used democratic instruments to assume control of the means of social coercion.Footnote ⁷⁴ Some such societies arrived at a condition of partial democracy, in which full democratic inclusion remained a privilege for designated social groups, so that some groups were excluded on grounds of socio-economic class position, ethnicity or gender. In both categories, the constitutional norm of popular sovereignty was not materially elaborated.Footnote ⁷⁵ Although originally imagined as a system of collective liberation, constitutional democracy actually evolved as a system of selective repression, in which public institutions were monopolized to secure elite positions in society. Likewise, national societies that embarked on processes of structural integration did not acquire fully national form, and national political institutions lacked the effective sovereignty to integrate all social groups. In the more compactly nationalized states of Europe, social and territorial integration remained patchy until after 1945. In the USA, the process of societal nationalization was not completed until the mid-1960s, when a system of legal norms was created that was (at least notionally) centrally enforceable across all territorial regions in the country. In less integrated societies, for example, in Latin America, national integration remained very fitful until later in the 20^th century.Footnote ⁷⁶ In most African countries, national integration only began during decolonization, and it remains today demonstrably weak.Footnote ⁷⁷

On balance, very few national societies whose normative self-comprehension was founded in constitutional democracy evolved sovereign political institutions, capable of integrating national citizens in generally inclusive (democratic) fashion, and very few national societies acquired conclusive national form. In most societies, norms of citizenship that promoted democratization were unable to solidify structures of national integration, in which democratic practices could be stabilized. The primary subjects of constitutionalism remained, in essence, unreal.

Global norms and national formation

Striking in this regard is the fact that democratic political systems and fully national societies were not common until after 1945, and they were not generally developed until the 1980s. Increasing democratization and national integration eventually coincided with the early formation of global system of legal norms, strongly connected to the promotion of human rights law after 1945, promoted by the UN and other international organizations with regional focus and authority. At this point, both in their own societies and in their external relations, national states became subject, however notionally, to a higher set of laws, originating and located outside national legal systems, which were strong enough to shape both constitutional and statutory decisions of governments within their own territories. As a result, the formation of national democracies and national societies more broadly began to become widespread at a point in time when the formal sovereignty of national states was increasingly restricted. In fact, processes of democratization and integration within national societies were historically shaped by, and ultimately contingent upon, the emergence of a globally overarching normative order. As widely noted, the integrational impact of global norms in national societies did not result from the simple forcible imposition of such norms.Footnote ⁷⁸ Manifestly, the system of global norms was not originally backed by strong coercive institutions, and the global rise of human rights law did not form a hard causal substructure for the expansion of democracy. Nonetheless, norms established in the global domain filtered into national society through a range of practices, often very contingent in nature, slowly elaborating shared normative structures to coordinate social integration and to underscore citizenship practices. Few societies became democracies without domestic exposure to international human rights law. Discernibly, such norms proved conducive to democratic formation and nation building as they impacted on patterns of conflict within domestic societies, and they softened the antinomies inherent in purely national patterns of constitutional legitimation, integration and subject construction. In so doing, they allowed national populations to assume a secure role as sovereign political actors, within sovereign national institutions.

This can be observed in a number of different ways.

First, international human rights law intensified the integrational force of political institutions in national societies, and it led to increased convergence of society around sovereign political organs.

As discussed, in most classical national societies, the ability of political institutions to extend sovereign power deeply into society was limited. To be sure, the political systems of some societies acquired heightened integrational force in the 19^th century, and then again, more intensely, in and after World War I. Later, many national societies witnessed experiments, usually in the middle third of the 20^th century, in which centralized institutional construction was promoted in accelerated fashion, to force societies into convergence around organs of national governments. Long into the 20^th century, however, national societies typically retained, or recurrently reverted to, a patchwork design, in which local actors and authorities acted at a high degree of autonomy, often outside the jurisdiction of formal institutions.Footnote ⁷⁹ In most settings, the formation of state institutions able to imprint a cohesive and integrated form on society was only realized as these institutions extracted legitimacy from normative principles formed outside national societies, especially from global human rights law.

The role of global human rights law in promoting institutional sovereignty and national integration became visible in diverse fashion in different settings, and only a few variations on this process can be described here. As one example, many states with federal constitutional systems acquired heightened integrational force after 1945. In this process, typically, states obtained the power to unify different sub-national regions in society as they internalized human rights norms in their constitutional order. This usually meant that state agencies obtained authority to cut through normative distinctions between different regions, and to impose a single sovereign order on society as a whole.Footnote ⁸⁰ In extreme cases, presumptions in favour of human rights law led to the de facto military occupation of regions that refused to show compliance with the core legal norms of society as a whole.Footnote ⁸¹ Alongside this, many states in societies with a long history of informal resistance to powers exercised by national government bodies assumed higher integrational force after 1945, so that local organizations lost the ability to extricate themselves from the legal order defined at the national level. In this process, the penetration of global human rights into domestic law played an important role in removing counterweights to the integrational force of government bodies, and in instilling a single normative grammar in society.

For example, in Japan, the authority of the central state had historically been weakened by clusters of informal authority attached to household regimes. After 1945, globally defined legal rights assumed new prominence in Japanese society, and one outcome of this was that localized sources of power forfeited importance.Footnote ⁸² This does not mean that the constitutional order of post-1945 Japan simply gave comprehensive effect to international human rights law, removing all traces of pre-modern power structures. It is commonly observed that after 1945 individual rights were less strongly protected in Japan than in other post-authoritarian states.Footnote ⁸³ However, the post-1945 constitutional order promoted an individualization of legal status claims, reflecting global human rights law, and this helped to dissolve historical accretions of local, familial and economic power that curtailed the societal purchase of government.Footnote ⁸⁴ In the USA, analogously, growing endorsement of international human rights law progressively restricted the force of local norms and informal modes of authority. It is commonplace to observe the USA as a polity that exemplifies resistance to international human rights law.Footnote ⁸⁵ However, the USA is in many ways a paradigmatic case for polities whose integrational structures are crafted through interaction between national actors and international norm setters. The USA was formed, finally, both as an integrated nation state and as an integrated democracy in the period 1945–1964/65, as the capacity of local elites in the southern states to extricate themselves from federal laws was reduced, and rights of democratic citizenship were evenly extended to all social groups.Footnote ⁸⁶ This overlapping process of state formation and democratization cannot easily be explained without consideration of the force of global legal norms. This process was propelled, in part, by anxiety in the executive branch about the standing of the USA in the global inter-ideological conflict with the Soviet Union, and it was driven both by presidential imposition of international human rights principles and by executive support for legal actions likely to harden the purchase of such norms in the national legal system.Footnote ⁸⁷ In the 1940s and 1950s, the Department of Justice provided amicus curiae briefs, often based in international law, to support plaintiffs in leading desegregation cases.Footnote ⁸⁸ This process was also conducted by judicial institutions, which, even although rarely according to international norms decisive force in cases relevant for the quality of democracy, found ways to align domestic constitutional principles to global expectations.Footnote ⁸⁹ In cases of extreme prevalence of informal power structures, exemplified in Africa and Latin America, the linkage of national law to global human rights law became a mainstay in intensified processes of nation building that occurred in the later 20^th century and beyond. Perhaps the most emblematic example of this is Colombia, a state historically defined by the fact that, owing to the long-standing civil conflict, central institutions did not pierce far into society, and non-governmental bodies, often with military capacity, created informal micro-states within the national territory.Footnote ⁹⁰ The eventual incorporation of Colombian society into one integrated legal/political system was strongly shaped by the imposition of globally defined norms on society. Such norms possessed integrational force because, as they originated outside national societies, they could claim some authority amongst all parties in the civil conflict, which meant that the vocabulary of human rights law emerged as a unique shared social diction.Footnote ⁹¹ In many instances, national institution building in Colombia was ordained by law courts, citing direct authority under international human rights treaties.Footnote ⁹²

In these processes, the basic institutional preconditions of national democracy and national society – that is, institutions able to exercise a monopoly of power and to integrate national citizens – only developed on the foundation of norms derived from the global legal system. The sovereignty of national institutions and nationhood more widely were constructed through a process in which national constitutional law was integrated into global constitutional law. In fact, the essential subjects of constitutional democracy – sovereign citizens, in sovereign states, in national societies – only took shape on a global legal substructure.

Additionally, second, international human rights law created the framework for more effective articulation between national political institutions and national citizens.

The corpus of human rights law that came into being after 1945 was underpinned by the assumption that citizens of national polities possess rights as singular subjects: that is, in the first instance, that citizens exercise rights as rights that attach, singularly, to their bare subjectivity, prior to their incorporation into any shared associational order. This had particular importance in the process of democratic consolidation that occurred after World War II. At this time, it was widely perceived that democratic polities created after 1918 had been vulnerable to political sabotage because they had sanctioned corporatistic constructions of rights, allowing collective economic organizations to acquire powerful positions in the peripheries of government.Footnote ⁹³ This also had importance because the allocation of singular rights was perceived as an alternative to the public-legal systems of interwar Fascist regimes and post-1945 Communist polities, in which structured associations, such as trade unions, professions, corporations and military bodies, were accorded constitutional protection.Footnote ⁹⁴ The patterning of constitutional rights on an individualistic design was deeply shaped by the power of norms emerging at the international level,Footnote ⁹⁵ which clearly attributed rights to persons in particular, abstract form.

This global-individualistic reorientation of human rights law entailed a revision of the classical construction of legitimacy for governmental functions. As global human rights law entered national societies, the legitimacy of national political systems was directed away from the principle that a government acquires authority if it translates the interests of citizens into legislative form, mediating such interests into laws recognized by citizens as reflecting a shared sovereign will. Instead, the principle was established that government displays legitimacy by recognizing in law an invariable singularized construction of the citizen, reflected as a subject in possession of certain basic rights. As governmental legitimacy was linked to globally projected rights, thus, national polities were able to demonstrate legitimacy in categories separate from the factual citizens to whom legislative power was applied, so that the recursive cycle of legitimacy inherent in classical democratic systems, based in the maintenance of a constant line of communication between state and citizens, was partly suspended. In some ways, the reorientation of legitimacy under the emergent system of global human rights law meant that factual citizens were removed from their original constitutional position as sovereign authors of legislation. The rise of individual rights meant that legitimacy could be constructed for law through reference to a system of norms detached from concrete existing citizens, and laws could be partly authorized and legitimated without reference to citizens in their manifest form.

At an institutional level, this reorientation of political legitimacy had three primary results, each of which tended to consolidate national democracy and national institutions, and to heighten the integrational form of national society more widely.

First, after 1945, democratic systems were increasingly established in which legislative organs were less exposed to inter-fractional pressures and less likely to internalize collective associations of citizens as sources of legislation and legitimacy. The fact that governments established their legitimacy by proportioning laws to citizens as singular rights holders meant that the original legitimacy of law was attached to a formal abstract source, outside the immediate governmental order. As a result, it became more difficult for collective associations to monopolize the production of law and legitimacy, and access to legislative power was more securely protected. To be sure, this was not universally the case. Some post-1945 societies continued to experiment with patterns of democracy in which citizens were fully incorporated in government.Footnote ⁹⁶ After 1945, moreover, structured organizations very manifestly did not lose power in new democracies, and patterns of cross-class compromise central to the public economies and welfare systems of post-1945 states were usually established through the balancing of interests represented by different organizations. At this time, nonetheless, interactions between organizations and actors in political institutions tended to take place in stable fashion. In particular, organizations usually assumed increasingly differentiated and specified roles, focused on promoting distinct sectoral objectives. It became less frequent, for example, for powerful economic organizations to mobilize entire social groups or classes, or to interlock fully with religious associations or political parties, and they emerged instead as partners in multi-focal social agreements.Footnote ⁹⁷ This meant that the ability of economic organizations to displace elected governments or colonize state resources was diminished,Footnote ⁹⁸ and the legislative organs of government acquired greater control of political bargaining processes, in a form solidified against other bodies.Footnote ⁹⁹ The recognition of citizens as holders of rights outside the grammar of social conflict, in other words, had the result that legislation tended to reflect more generalized constructions of citizenship, and governmental actors acquired the ability to pass laws at a heightened degree of autonomy and sovereignty.

Second, after 1945, the fact that citizens acquired individual rights, increasingly predefined in a global normative order, meant that privileged constituencies in national society found it harder to utilize political institutions as instruments to exclude persons with minority affiliations from the system of political competition. After 1945, the number of democracies that excluded particular social memberships – for instance, on grounds of ethnicity, gender or socio-economic position – declined rapidly, and the selective privileging of electoral groups proved increasingly difficult to legitimate.Footnote ¹⁰⁰ This was again due, in part, to the fact that the legitimacy of national governments was constructed through the replication in domestic laws of normative expectations defined outside national society. As a result, the exercise of variable rights, not centrally defined by the political system, became less frequent,Footnote ¹⁰¹ and different groups in society entered a more even relation to the national political system. Through this, national populations were progressively integrated within a single normative order, and political institutions imposed increasingly uniform (sovereign) authority across society as a whole.

What this amounts to, third, is that after 1945 a solid stratum of rights entered national societies, which softened – or partly demilitarized – the lateral conflicts between national citizens. Through the rise of global human rights law, conflict between rival citizenship groups lost its central importance as the basic source of law, and laws could be authorized by reference to rights that were stabilized prior to, or separate from, concrete social antagonisms. In this respect, globally defined legal rights led to the deep pacification of the procedures in which citizens assumed sovereign power. The global environment after 1945 retained the same propensities for conflictual patterns of citizenship that marked the interwar period. In fact, all post-1945 polities were in some way defined by their position in the ideological conflict between the USA and the USSR, and core states in this conflict became, at an institutional level, more militarized than had previously been the case.Footnote ¹⁰² However, amidst this global militarization, national societies increasingly developed models of internal citizenship integration that were slightly disarticulated from external conflicts, and the global promotion of human rights limited the domestic penetration of global conflicts as a source of citizenship. One indicative characteristic of post-war European politics, for example, is that political parties of the far left developed individualized political programmes, strongly linked to international human rights agreements. As a result, they increasingly refused to link their stance to the ideological orthodoxy of the USSR, and they campaigned on platforms outside global ideological dichotomies, which were less likely to structure inner-societal conflicts around global polarities.Footnote ¹⁰³ The construction of the citizen as global rights holder meant that the citizen could bring legitimacy to laws without constitutive conflict with other citizens, and the state could obtain legitimacy on a foundation that was not solely defined by its ability to mediate concrete antagonisms or consolidate positions arising from social conflict, likely to be inflamed by international ideological positions. International human rights law obtained its most far-reaching result in the fact that it helped to pacify the basic subjective unit of national society – the sovereign citizen – so that the citizen could assume its designated functions as a source of legitimate law and a central reference in processes of social integration and centralized institution building.

In these respects, on one hand, popular sovereignty only eventually became real as it was exercised on global normative foundations. The basic subjects of constitutional law, originally articulated as a source of legitimacy in the 18^th century, only approached reality as the citizen appeared in the national political system in a form predetermined by, or mediated through, global human rights law. This body of human rights law detached the citizens represented in processes of legislation from actual material citizens, allowing citizens to enter the political system as participants in legislative practices in controlled, highly constitutionalized fashion. In turn, this helped to confer secure form on the production of legitimacy within the national political system, so that political institutions were able reliably to legislate, in sovereign form, for their citizens. The global preconstruction of the citizen made it possible for the citizen to act as the sovereign political subject of sovereign political institutions in a genuinely national society. The global preconstruction of the citizen in fact brought the normative content of citizenship into alignment with its functional-integrational preconditions. In these respects, on the other hand, national societies themselves only became real on global legal foundations. Most national societies acquired national integrational form because their institutions utilized global norms to insulate the basic source of nationhood, the sovereign citizen, against its own antinomies. The normative core of national society, the sovereign citizen, only conferred functional-integrational form on national society as it was patterned on global norms.

The above explanation of citizenship, sovereignty and nation formation opens a new perspective to examine the current rise of neo-nationalist government. Populism is in essence a movement that mobilizes the (national) normative subjects of constitutional democracy against the (global) integrational processes, through which these subjects actually assumed reality. Populism itself gains plausibility because classical constitutional diction permits members of national populations, simplistically, to project themselves in sovereign political roles that it is not possible for them, in a simple form, to occupy. This is the result of a deep sociological vacuity in constitutional thinking.

In this respect, emphatically, it needs to be noted that legal norms of global origin can and often do undermine the formation of democratic constitutional systems. For example, some anti-democratic regimes are propped up by powerful monetary interests protected by international investment law.Footnote ¹⁰⁴ International investment law can clearly be used to override interests within national communities, thus weakening the basic territorial foundations of popular sovereignty.Footnote ¹⁰⁵ This is widely evident in settings in which national communities are selectively dispossessed by international corporations. Moreover, some semi-authoritarian states strategically utilize international human rights law to cement their institutional hold on national societies, for purposes that are anything but democratic.Footnote ¹⁰⁶ In such cases, rejection of international laws may form a wholly legitimate expression of democratic expectations.

Observed closely, however, situations in which international norms undermine democracy tell us two things. First, international norms erode democracy, typically, because their imposition is backed by strong inner-societal interests, often working in conjunction with international economic actors.Footnote ¹⁰⁷ In such contexts, then, the assertion of national citizenship rights is itself likely to have global-legal foundations. For instance, remedies for depredatory investment practices are more fully consolidated in international law than in most domestic constitutions, and such norms have great importance in checking collusion between national elites and global economic players.Footnote ¹⁰⁸ Similarly, inner-societal opposition to authoritarian government commonly entails some mobilization of international law.Footnote ¹⁰⁹ Where global norms disrupt democratic will formation, it is common for populist movements to use this to justify wholesale hostility to global norm formation, proposing a simple figure of the national sovereign population as an alternative to international norms. However, even – or perhaps especially – in circumstances in which global norms appear to threaten democracy, national citizenship rights are likely to presuppose global-legal support. This indicates, second, that global norms retain a constant formative significance for the stabilization of democratically integrated societies, and national citizenship roles are still reliant on global norms. International norms did not only lead to democratic integration; they remain one of its most powerful preconditions.

Constitutional crisis and weak citizenship

Some recent attempts to position the national sovereign people at the legitimational centre of the political system have led directly to a constitutional crisis, eroding national systems of democratic representation. In such examples, the capacity of the political system to assume legitimacy through reference to national citizens as sovereign actors has been critically weakened.

A moderate example of this loss of attachment to citizens can currently be observed in the USA. In this context, the legitimacy for government is generated through express emphasis on the will of national citizens, defined in antithesis to globally constructed norms.Footnote ¹¹⁰ However, in this polity, instruments for the representation of national citizens in government have clearly been weakened. This is reflected in the fact that established political parties lose some of their ability to connect citizens to the political system, such that political communications partly by-pass routinized patterns of interest aggregation. This is more sharply reflected in the increasing importance of executive legislation, in which conventional processes for linking legislative procedures to representative bodies are diminished.Footnote ¹¹¹ A more acute example of such loss of attachment is Brazil, where the recent turn towards anti-globalist models of legitimacy has led both to the weakening of institutional procedures for citizenship practice and to the intensification of executive law-making.Footnote ¹¹² A still more extreme example is the case of Venezuela. Here, the constitution of 1999 sought to integrate the people as a live constituent power in the state. Ultimately, however, it created a mandate for an autonomous presidential executive, deeply reliant on legislation by decree.Footnote ¹¹³ Perhaps the most distinctive example of this phenomenon can be observed in the UK. In this setting, opposition to the seeming loss of sovereignty by the UK parliament owing to its integration in the European Union and the European human rights system led to the organization of a referendum in 2016, supposedly to re-centre the political system, or the organs of parliament within the political system, more firmly around the popular sovereign will. However, this referendum had the outcome that a plebiscitary decision was taken outside parliament, supposedly by the national people in exercise of sovereignty, which became informally hyper-entrenched against the will of parliament itself. The result of this was that parliament, constitutionally the sovereign organ of the polity, forfeited its sovereignty, and lost power to discharge its mandate towards the people, for the sake of whose sovereignty the 2016 referendum had been called. This process led, not to increased direct representation, but to increased reliance on executive legislation.Footnote ¹¹⁴ This shift to executive predominance has been checked in part by recent legal rulings, but such rulings underline the anxieties and constitutional uncertainties surrounding this uncharted process.Footnote ¹¹⁵

In each instance, the heightened assertion that the national sovereign people must form the immediate basis for state action created a political order in which the capacity of the government to channel norms produced by citizens into legislation was diminished. In each case, governments have disrupted the procedures through which the interests of citizens establish foundations for legislation, and they have dramatically eroded the premises of national citizenship. To this degree, such governments have experienced a partial regression to pre-national conditions.

Failures of integration and social militarization

In some cases, the attempt to position the national sovereign people at the legitimational centre of the political system has undermined the basic integrational order of society, so that society as a whole forfeits, in part, its material quality as a nation.

Such structural disintegration can be seen in the legal systems of polities with populist governments. As discussed, political systems whose legitimacy is defined by the rhetoric of sovereignty usually reduce the standing of judicial institutions, especially when such institutions are backed by global human rights norms.Footnote ¹¹⁶ In many societies, as discussed, global human rights formed a normative foundation on which national institutions were able to extend their force into society, and to incorporate all citizens in a shared sovereign order. In consequence, the weakening of independent judicial power often undermines society's integrational structures. First, the reduction of independent judicial authority frequently leads to a situation in which different social groups are accorded variable rights, such that rights are closely linked to socio-economic, political or ethnic status. Very clear examples of this are evident in Hungary and, in far more extreme form, in Brazil, in which protections for minorities and vulnerable social groups have been reduced through the rise of neo-nationalism.Footnote ¹¹⁷ Second, the reduction of independent judicial authority frequently gives rise to a situation in which the legal mechanisms that subordinate geographically peripheral social groups to central state institutions are enfeebled, so that regional elites acquire accentuated power. This is especially evident in Brazil, where old pre-national oligarchical structures appear to be in the process of re-articulation.Footnote ¹¹⁸ A probable result of these developments, third, is that local sources of authority will acquire renewed importance, and local elites will act as mediators between regional groups and national agencies.Footnote ¹¹⁹ In such processes, the core function of global human rights in imprinting a national structure on society is diminished, and the legal system forfeits some of its capacity for linking diffuse agents and regions to the political system. As a result, the basic sovereignty of the state and the basic integrity of national citizenship are undermined.

Such structural disintegration can also be seen in the territorial dimension of societies with populist governments. A common feature of overtly nationalistic governance systems is that they rely for support on locally specific constituencies, and they generate compliance by mobilizing interests in certain regions against interests in other regions. This can be clearly seen in Brazil and Colombia, where voting tendencies are now deeply determined by regional identities. This can also be observed in the UK, where the territorial unity of national citizenship is exposed to severe duress as a result of the nationalist policies of the Conservative government.

Such structural disintegration is also visible in the fact that, in societies with populist governments, the capacity of political institutions to create laws for society as a whole is reduced. In particular, legislative institutions in neo-nationalist polities are often unable to rely on generally acceded norms to underpin legislation, and they are usually required to utilize informal means to implement legislation across society. For these reasons, such polities tend to require support from local elites to maintain legal compliance.Footnote ¹²⁰ In extreme cases, of course, the power of the state to enforce uniform legal norms across society depends on a remilitarization of the political order, in which the imposition of legal obligations hinges on the transformation of political institutions into military instruments.Footnote ¹²¹

In each of these features, populist governance regimes mark a return to a pattern of political-systemic organization that characterizes incompletely nationalized societies, and it reverts to a moment in the history of nation building and citizenship construction in which state organs had not yet acquired full sovereignty.

High porosity of institutions to private actors

In some cases, the attempt to position the national sovereign people at the legitimational centre of the political system has disrupted the essential capacity of political institutions to exercise public authority. In particular, it reduces the distinction, fundamental to national society, between the political system and other centres of coercion, and it undermines the essential hierarchy between institutions sustained by norms constructed through reference to the popular will and organizations or actors with subordinate authority.

First, polities that found their authority in national sovereignty tend, in factual practice, to weaken controls regulating access to political power and public office. This is usually the result of the diminution of judicial counterweights to political authority, but it is also linked to the fact that administrative procedures are less closely defined by human rights norms. In many populist states, government offices coalesce closely with elite privileges, such that public office and private resources are not easily separable.Footnote ¹²² This is also the result of the fact that such polities rely on powerful private actors to generate political support, who then expect remuneration through the distribution of offices. Second, as discussed, polities based in emphatic expressions of national sovereignty usually depend on informal intermediary actors to correlate central institutions with peripheral authorities. One reason for this is that, as they limit the purchase of overarching legal norms, such politics are required to sustain the transmission of law through society by more ad hoc arrangements, reliant on personalized accommodation. Consequently, leading figures in such polities often use patronage to hold together different tiers of the political system, and they routinely confer privilege and effective autonomy on local actors.Footnote ¹²³ In each of these respects, a polity that is emphatically based in national sovereignty often experiences a loss of institutional autonomy in relation to other organizations and personalities, and it tends to trigger, or at least to bear witness to, a process of denationalization, in which society's institutional order partly regresses to a pre-national form.

Overall, the institutional form of neo-nationalist government usually demonstrates that the preconditions of national democracy and national society itself are endangered, paradoxically, by governments that extract legitimacy from a simple construction of the sovereign national people. This fact provides evidence to support the first core claim above – namely, that the sovereign nation is a political achievement, which is not easily created by members of the nation itself and is usually secured by global norms. This fact also provides evidence to support the second core claim above – that the literal constitutional diction of national democracy is based in a deep misunderstanding of both democracy and nationhood. This fact also implies that global norms did not simply underpin the rise of national democracy. On the contrary, they remain vitally implicated in the integration processes that sustain democracy, and these processes can easily be reversed wherever global norms lose influence.