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Upton-On-Line: Special Issue On Nation-Building

Diaspora Edition

1st July 2004

Special Issue on Nation-Building

In this issue

Judge Eddie Durie's recent comments provide the basis for an exploration of Ernest Renan's "What is a Nation?" (1882) and, in turn, some reflections on what sort of basis New Zealanders might want to live together; in a guest column, Bernard Cadogan explores just what sort of nation nineteenth century Britons thought they were creating and adds his own understanding of Judge Durie's comments

What is a nation?

Upton-on-line's eye was caught recently by a NZ Herald article in which High Court Judge Eddie Durie was reported as saying that the Government should be obliged to deal with tribal communities as it would "with other nation states".

What sort of nation state could His Honour have been thinking of? This troubling question lay unanswered until a fresh lead was provided by Le Figaro in one of the articles it has been commissioning under the title "What does it mean to be French today?" (For a nation acutely and self-consciously aware of its cultural exceptionalism, the French seem strangely pre-occupied with reassuring themselves on this point, but that's another story...)

The contributor in question chose to cite an essay by a celebrated 19th century French philosopher and historian, Ernest Renan who, apparently untroubled by his Frenchness, chose as his title the more expansive question, "What is a Nation?" Written in 1882, this brief essay has much to say that is relevant to Europe's current struggle to bed down a constitution and New Zealand's current constitutional disorientation. (The French version can be found at: )

What a nation isn't

Renan starts by dismissing race as a grounding for nationhood. His analysis (a clarion-call of sense made fifty years before the murderous irruption of racial theories in Germany) is deeply rooted in a sense of the contingencies of European history:

"An Englishman is certainly a distinct type of person amidst humanity at large. And yet this 'type', which is quite improperly called the 'Anglo-Saxon race', is neither British from the time of Caesar, nor Anglo-Saxon from that of Hengist, neither Danish from Knut's era nor Norman from the time of William the Conqueror; it is the result of all of that...

...The study of race is central to the concerns of scholars who concern themselves with the history of humanity. It has no application in politics. The invisible hand which has presided over the patterning of the map of Europe, has taken no account of race and the first European nations are in essence nations of mixed blood."

Next, he eliminates language noting that while the English and Spanish may all speak the same tongue, Switzerland is no less a nation while maintaining three or four tongues:

"Let's repeat it: this division of languages into Indo-European, Semitic and so on, created with such admirable simplicity through the study of comparative philology, doesn't coincide with the boundary lines of anthropology. Languages grow out of historical circumstances which have little to say about the blood of those who speak them and which, in any case, have no ability to enchain human liberty when it comes down to deciding whom people are going to settle down with to share life and death.

"When it [an emphasis on language] is carried too far, people become sealed up in a closed culture which is held out as being national; it's limiting, it involves shutting oneself away. People leave behind the open air that is breathed on the broad plains of human experience and hem themselves in behind closed walls with their compatriots. There's nothing worse for the human spirit; nothing more debilitating for civilisation. Let's not abandon this fundamental principle, that humans are first and foremost reasoning and moral beings before they are labelled as belonging to such and such a language, being a member of such and such a race or belonging to this or that culture. Before French culture, German culture or Italian culture there is the culture of humanity."

In quick succession, Renan then proceeds to deal with other determinants of nationality. Religion is relegated to the world of choice and private conscience; geography is ridiculed as wholly arbitrary; and (a warning - or endorsement - for present day Euro-sceptics) Renan tersely states that "a Zollverein [customs union] isn't a homeland". So what is a nation? Renan's desideratum is worth quoting at length:

"A nation is a soul, a spiritual principal. Two things which, to tell the truth, amount to the same thing, this soul, this spiritual principle. One is in the past, the other in the present. One is the shared possession of a rich legacy of memories; the other is the current consensus, the desire to live together, the will to continue to value the heritage that has been passed down in its entirety. Humanity doesn't improvise. The nation, like the individual, is the upshot of all the efforts, sacrifices and acts of devotion. Respect for our ancestors is, of all things, the most proper; our ancestors have made of us what we are. An heroic past with great and glorious individuals (I'm thinking here of those who are beyond question), these represent the social capital on which the national idea is founded. To be able to share common triumphs of the past and a common will in the present; to have done great things together and to want to do so again; these are the essential prior conditions for being a people. We respect, in proportion, those sacrifices to which we have consented, those ills which we have suffered. We love the house that we have built and passed down...

"In the past then, a heritage of shared triumphs and regrets, in the future, a similar story to realise; to have suffered, rejoiced and hoped together counts for so much more than common customs or frontiers conceived in strategic terms; it's that which asserts itself despite the diversity of language and race. I said just a moment ago "to have suffered together". Yes, suffering in common unites more than shared joy. In fact, in terms of national memories, it is the moments of grief that count for more than the moments of triumph for they impose duties, they command common efforts.

"A nation, then, is a source of solidarity rooted in an understanding of the sacrifices that have been made and those that people are willing to undertake again. It [the nation] supposes a past; but it is recapitulated in the present through a tangible fact: consent, the clearly expressed desire to continue a common life. The existence of a nation is (if you will forgive me the metaphor) a daily plebiscite in the same way that the existence of each individual is a perpetual reaffirmation of life itself..."

No room for lazy ideology

None of this will be easy reading for the cheer leaders of root and branch, culturally-based self-determination. (Woodrow Wilson and his generation went on, thirty five years later, to endorse just such culturally-based frontiers on the ruins of Europe at Versailles: the experiment lasted twenty years.) But it is an analysis equally problematic for the anaemic, serial liberalism of our age which has variously pronounced the end of history, the withering of the nation state and the primacy of legalistic contractualism. Renan was no dreamer. His prognosis for Europe was particularly percipient in view of the current tensions that are building around contemporary constitutionalising in Brussels:

"Having stripped out any metaphysical or theological abstractions from the matter, what's left behind? What are left, are people, their desires and their needs. Secession, let me tell you, and, in the long run, the break-up of nations will be the consequence of a system which puts these old organisms [nations] at the mercy of often ill-defined agendas. It is clear that in these matters, no principle can be pushed to excess. Any truths are only applicable in their totality, and in a very general way. Human volition changes; but what doesn't change in this life? Nations aren't something permanent. They had a beginning and they will have an end. A European confederation will, in all likelihood, replace them. But that is not the spirit of the century in which we are living. For the present time, the existence of nations is a good thing, essential even. Their existence is the guarantee of liberty which would be lost if everyone had only one law and one master..."

Two world wars (in some respects European civil wars) and 40 years of Cold War later, the 'spirit of the century' may have changed but there is no 'European confederation' in sight. While all manner of directives and treaties have created a common economic space (a common complicated economic space might be a better appellation), national tensions and competitiveness are as acute as ever (see upton-on-line 20th May 2004). The spectre of tax competition by new entrant countries and the rampant industrial nationalism exhibited by France as it seeks to save national flagships provide eloquent evidence that Renan was spot on when he opined that "a Zollwerein does not a nation make".

A shared heritage

For all that, Europe's shared heritage is real and accounts for a certain reflexive scepticism in the face of virulent nationalism. Europeans are acutely aware of two founding universalisms at the base of their civilisation - the Roman Empire and Christianity (even if they can't bring themselves to mention the latter in their constitution). So that whatever tribal or atavistic lurches may scar European history books, there is, one senses, a deeply felt belief that while history is something you cherish, it's also something you surmount. It was the absence of so much complicating history that made the American experiment of the late C18th, and its subsequent success, possible. It was, of course, a deeply European project - a rational consequence of the European enlightenment transported beyond its historically confining boundaries.

Amidst the deadly score-settling that attends the re-birth of Iraq, it seems heroically naïve to have even considered that history might be 'over'. But, albeit at different speeds and in different settings, Europeans and Americans have at least learned that while the future is patterned by history, it is not at history's mercy. There is no talisman buried in the past that can dictate the nature of the contemporary political order: there are just today's citizens who must decide how they relate to one another. Here again, Renan has wise words to offer:

"Forgetting history - and I would even go so far as to say outright historical inaccuracies - are essential factors in the creation of a nation, which is why improved historical studies are often a danger for national identity. Historical investigation, in effect, brings back into the limelight those acts of violence which lie at the origin of all formative acts of nation-building, even those whose consequences have been the most beneficial. History is always imposed brutally: the union of the north of France with the Midi [the South] was the result of extermination and terror that went on for more than a century...

"The essence of a nation is that all the individuals have a great deal in common, but also that they have forgotten many things. No French citizen knows if he is Burgundian, Alain, or Visigoth; every French citizen has had to forget the St Bartholomew's massacres in the Midi in the C13th. There wouldn't be ten families in France who can provide proof of a Frankish origin; and even so, any such proof would be inherently defective as a result of the thousand of unknown inter-breedings which can undermine any genealogical system..."

Does it sound at all familiar?

Renan's prescient grasp of European realities is one thing. But can this 19th century European say anything about 21st century New Zealand. The idea of forgetting history seems inconceivable in a country that has formally made the re-examination and judicialisation of history the basis of nation building. There are undoubtedly many European New Zealanders who would be tempted to adapt Renan's line of reasoning to advance the case for historical amnesia: "there's nothing to be gained by raking over history - let's settle the proved land claims and then get on with being one people."

It remains possibly the strongest unspoken, politically incorrect undercurrent in New Zealand today. With the Treaty and the Land Wars at most 160 odd years distant, such a strategy looks, to many Maori people, like a stratagem of denial. Yet this is history whose lava flows are still cooling. The events in contention are no mediaeval or first millennium upheaval lost in the mists of time. Pick through the crust and you still find molten pockets.

But Renan can explain something to Maori about why European New Zealanders react as they do. Because when he states that "the British Isles, taken as a whole, offer a mixture of Celtic and Teutonic blood whose proportions are impossible to define" he states something that is almost unconsciously accepted as a given by many New Zealanders.

In another life upton-on-line listened to countless constituents cheerfully describe their mixed or 'mongrel' roots. New Zealand was settled - and grew to nationhood - during the apogee of the British Empire. New Zealand is, in large degree, a neo-Britain and with that has come a stock of assumptions about what makes a nation and what political life is built around.

Perhaps in the same way that Europeans have had to come to grips with the differentness of Maori culture, it is time Maori started to take seriously the reasons why so many European New Zealanders react to claims based on race, language and history as they do. The British were island people; they had a strong sense of mixed blood; they knew all about ethnic romanticism (in Scotland and Ireland); they carried the memories - and in some cases scars - of religious conflict with them; they knew all about the land reform that accompanied the agrarian revolution and the social consequences of dispossession. But, much as Renan describes, in the process of nation-building they used historical memory selectively and in some cases with wilful disregard for the facts if it helped manufacture a 'better' national story.

Upton-on-line suspects that many post-British New Zealanders rather like the idea of a nation built on inter-marriage, everyday cultural fluency practiced in sports and recreational pursuits, shared suffering and heroism (the exploits of the Second World War) and even a recognition of past conflict which, whatever the cost, didn't lead to mutual annihilation but a workable co-existence. But, as Renan insists, this sort of nationhood equally requires some ability to forget.

Do we want to live together?

Even more important is, as Renan puts it, "the desire to live together". Do we want to do that? The answer might seem absurdly obvious. But come back to Mr Justice Durie's challenge to governments to treat with tribal communities as it would with 'other nation states'. Which other nations? Because if we are talking about the nation states that commonly come to mind as sovereign entities that enjoy particular immunities and recognition at international law, then this must be said: the people of New Zealand do not seek to live together with them. They are distinct, different communities whose histories we may have intersected but do not share in any national sense. His Honour has broached intensely interesting ground. These are questions that deserve serious reflection since they go to the heart of whether or not, in time, we have a nation called New Zealand at all.

In the meantime, lest anyone interpret this analysis as a call to sweep history under the carpet of amnesia, upton-on-line considers that we could do with more rather than less historical literacy. The huge investment many New Zealanders have made in coming to grips with the dark side of our history as revealed in successive Waitangi tribunal reports should now be joined by an equally vigorous effort to throw the spotlight on just what it means to be a post-Briton in New Zealand. There are certainly enough of us to warrant the effort; and it might help everyone interpret instinctive public reaction to the challenges we face.

Particularism versus universalism

One further thought. Judge Durie's language of tribal nations reminds us that Maori are part of a world-wide reaction to what is perceived to be a western, global, universalising hegemony that is inimical to local culture. This is a script about the enlightenment versus the counter-enlightenment. It is a whole debate by itself and the present issue of u-o-l is not the place to prosecute it.

One would have to observe, in passing, that the nationalist/particularist reaction against globalisation is as 'universal' and widespread as the phenomenon it seeks to counter: welcome to a small world! But there is no reason why a growing awareness of global or universal values should undermine particular cultures. "Why can't we all just get on with being New Zealanders" is the exasperated groan of many post-British kiwis. The answer is that we can, provided we all want to live together and can live with - and live down - our history. That doesn't mean forgetting it. But neither does it mean being paralysed by it.

The problem for many supporters of global liberalism is that they have no language to identify with "that solidarity rooted in an understanding of the sacrifices that have been made and those that people are willing to undertake again" (see Renan, above). Political and economic freedom - vital though these liberal pre-requisites for peace and stability are - don't occur in a vacuum. They occur in historically moulded space.

Post-British New Zealanders need to respond to Maori reassessments of nationhood with an historically and culturally well-informed account of their own roots. The post-modern smorgasbord of history teaching in New Zealand has let us all down here. Rather than using the past to incriminate the present, we need an open understanding of how we come to be where we are and why we have succeeded as we have (for that must surely be the overall verdict on the nation we know as New Zealand).

The view from Oxford

One New Zealander trying to come to grips with what was in the minds of early to mid-19th century Britons is Bernard Cadogan, a doctoral candidate in Oxford. The following piece has been written especially for upton-on-line; it is a glimpse of work-in-progress by a mercurial intellectual historian. Needless to say, the views expressed are Mr Cadogan's own, but upton-on-line is happy to carry this contribution to the national debate.

Whigs and Tories in the post-American colonies

The modern liberal state seeks to create an open, even field for governance. Think of political space in terms of computer-generated maps. All citizens are equal before the law, while the all-seeing eye of the state operates over a level plain of power equally and impartially. There is no privilege or exceptionalism to compromise the configuration of public space. Such a state is the creation of the late 18th century and diffused itself over the developed world throughout the 19th century. New Zealand is a product of this movement.

To pursue a topographical metaphor, this model of the state was deeply contested as it developed in Britain. There were originally high ranges of personal and corporate privilege and deep troughs of extensive disenfranchisement and exclusion from the political nation. Reactionaries and radicals and revolutionaries contested it. Tories, Whigs and Radicals contended for what would emerge.

The Reform Act of 1832 left the British Parliament reformed and purged of its rotten boroughs and the franchise widened and left in the hands of the middling property owners. Individual land tenure, either under freehold or leasehold tenure, became the paradigm for how citizenship was to be expanded, and for how British subjects were to be co-opted into the outer reaches of the political nation. This was change-management Whig-style. The basic project was to pre-empt revolution.

Such a franchise created a geological structure of English down lands above the level plains. The same political plate tectonics fractured and morphed the political landscape repeatedly during New Zealand's nation-building orogeny. Despite the erosion of political privilege that had occurred, the British settlers who came to New Zealand still came from a manifestly unequal polity. The sediment from the Reform Act of 1832 was washed down into New Zealand. There was no aristocratic privilege. But there was a settler Ascendancy, which recreated in good part the lumps and bumps, the undulations and sloughs of post-1832 Britain.

The Tories on the other hand were the party of institutions and corporations. The British constitution for them was an association of institutions and autonomous chartered bodies and enterprises. The courts, Inns of Courts, Parliament, the established churches, the East India Company, the Hudson Bay Company, and the New Zealand Company were all associates in sovereignty. Then, there were the 15,000 + parishes that conducted local administration, the 200 boroughs and the 1800 odd special purpose boards carried out local administration. Britain was an associative state, and it projected this model out into its settler empire. It was also a centralising state, and it was the tension between these two tendencies that shaped British 19th century constitutionalism. The Hobbesian Beast, like the Beast in the Book of the Apocalypse was unitary; it had multiple heads and horns, but just one Crown.

During the Napoleonic wars, the British fought for what they conceived to be the freedom of Englishmen. This freedom consisted not just in the liberty of the subject but in the role institutions had played in checking the development of a monarchical ancien regime in Britain. The checks and balances of the British constitution were contained within the bundle of rods fused in the Crown that together constituted British power. The representative governments of the settler colonies assumed this role to both manipulate and resist the metropolitan imperial power.

The Whigs were a half-way house between the liberal state and the old institutionalised order. While they prided themselves on change-management that would thwart revolution, and expanded the civil organisation of the liberal state in so many sectors, they were basically an oligarchy of peers, who prided themselves in their resistance to the Crown in the 17th century.

Both Whigs and Tories took lessons from the Napoleonic and Prussian states. About the first nice thing an Englishman ever said in public about Napoleon came from Dr Thomas Arnold, who told students at Oxford that what Napoleon did achieve was create a civil organisation for Europe. Britain developed a central and increasingly centralising government. The liberal state then moved to abolish, diminish or reform corporate privilege.

This was all occurring at the same time that Britain began to establish settler colonies all over again, after the loss of America, and after the Napoleonic Wars. How then was New Zealand configured? What was its original topography after the Treaty of Waitangi?

Back to the old world in the new

The new colonies subsisted in a time-lag behind Great Britain. There was a time-lag in applying the industrial economy, something Samuel Butler commented on while he farmed in Canterbury. Colonies were basically still 18th century worlds, propelled by wind, fire and the forge. Maori were building mills. The importation of machinery was a momentous event. Each step in the rise of the amount of horsepower produced had an impact on the settler beachhead economies up until the 1860s.

There was a political time-lag as well. New Zealand was officially a Crown Colony from 1840 up until the New Zealand Constitution Act 1852 was proclaimed and brought into force in 1853. It was only in 1856 with the advent of responsible government that the Crown Colony really ended and the New Zealand Government began. "The British Government in New Zealand", as it was termed, finally ceased in 1863, when liability and responsibility for native affairs were handed over to the New Zealand Government.

This Crown Colony was an 18th century ancien regime. The Governor was an active monarch, or sole-ruler, of the kind that the settlers' ancestors had not experienced since the 17th century. A Governor's ill-health, as with Hobson, his poor judgment, as with Fitzroy, or his vanity and brilliance and appetite for power, as with Grey, or his honest solid mediocrity, as with Browne, had a marked effect on administration.

It was natural then for such administrators to have different mental maps of power in New Zealand. There were first of all the tribes, of varying military strength and economic power, but in the aggregate, formidable. The tribes' associations with the British Government in New Zealand ranged from close association and collaboration to indifference and hostility. The settler world itself was divided into a dozen or so main beachhead settlements largely looking after their own affairs. The Governor was looking after the "macro" when he wasn't bogged down in minutiae. Settlers naturally protested at having the clock wound back on their political rights. The Crown then created an order for New Zealand, which was as stratified, highly seismic and contorted as the geology of New Zealand itself, and one of its features was a shifting ethnographic fault line.

For the effect of the Treaty was to create a Maori protectorate. The frontier was unfixed, because the Crown had the right to pre-emption of lands under aboriginal title. There was no hard and fast frontier, as the House of Commons Select Committee Report on Aboriginal Affairs had proposed in 1837 along the lines of the Appalachian Protectorate of 1763.

So there was a Pakeha New Zealand and a Maori New Zealand. The Treaty of Waitangi did not in reality create "one nation". However through land sales and assimilationist policies, the British fully intended that result. Similarly in Paheka New Zealand, the main settler towns found themselves and their hinterlands institutionalised into self-governing provinces. The New Zealand Constitution Act 1852 correspondingly provided for tribal self-government. Legislation was passed in 1858 to establish district courts and grant powers to the councils.

Once established, the New Zealand Government set about converting itself into a classic liberal state. It was doing this long before the "Liberals" came into office. The Waikato War was not just a land-grab but a consolidation by armed force of the protectorate. It only partially succeeded. Legislative machinery progressively worked away at it as the government's writ extended. The process was two-handed. The provinces were abolished, and instead of a poorly articulated confederation of provincial governments about the Central Government, there arose local government.

With respect to land, the settlers had imported individual property tenure as the paradigm for participatory citizenship. The tragedy of 19th century New Zealand is that Maori were almost totally excluded from participation in those terms. During this period Maori lost their land through sales, legitimate and dubious, through confiscation and by costs incurred through the legal process. They were then admitted to the franchise and to Parliament just as the settlers themselves and the British were moving towards more a more inclusive franchise for themselves.

A visitor to New Zealand, and such an astute commentator as the British Prime Minister Lord Salisbury, was scathing about the Land Wars in New Zealand. To the genuine Tory, such as Salisbury, Maori had institutions and property that corresponded to the corporate associations of a Tory model of the state. To the liberal eye, there was just locked-up land and mortmain.

The catch was that the Tory world-view was deeply hierarchical. People were free in their own ways with their own particular rights and localities. It was deeply segregationalist. People were one thing in one place and another thing in another. The Tory world-view would have South Africanised New Zealand. There would have been a Lesotho in New Zealand. Maori would have become strangers in their own country as they migrated.

The 'S' word

It is in this context that we have to consider the use to which the word 'sovereign' is put in the New Zealand context. Indigenous "sovereignty" is a valid operative term in North American indigenous law, where the Crown originally established protectorates and alliances with First Nations that did not convert indigenes into British subjects. The members of the "domestic dependent nations" in protectorates or alliance relations, as Chief Justice John Marshall described them, were not originally British subjects or citizens of the United States.

Governor Thomas Pownall, one of the authors of the Appalachian Protectorate of 1763 insisted in his "Administration of the Colonies" of 1764 that the Iroquois within that protectorate were not British subjects. The French could not convey to Britain what they did not have.

Article III of the Treaty of Waitangi however did make Maori subjects of the Crown. Maori signed up to British global power. This is why "autonomy" rather than "sovereignty" is the more appropriate concept for New Zealand, and such provision for autonomy was made in the New Zealand Constitution Act of 1852 in reference to Article II of the Treaty. While the New Zealand "order" is no longer to be interpreted in Hobbesian terms, it definitely was then. The British Crown became sovereign in New Zealand and not just "suzerain" or the protecting power.

It does not help, nowadays, to interpolate an alien language of power relations into the New Zealand mid 19th century context let alone into our 21st century situation. Tribal 'sovereignty' is at best a metaphor, at worst counter-productive in the intimate New Zealand environment. This brings us to the modern reconfiguration of New Zealand's political landscape. The geological forces have resumed. There is a Pacific plate pressing against New Zealand, and that is the impact of American jurisprudence, historicism and indigenous rights discourse.

Creeping catachresis from North America

The Americans rejected the British power state with their War of Independence. As an original revolutionary liberal state, American power and American thought operate on very different premises from those that existed in Britain and continued to evolve there. In modern scholarship it is being speculated that American intellectual hegemony has rendered the British experience unintelligible to both themselves and all of the former neo-Britains as well as Britain itself. That is why we and they no longer understand what it was to have been British or under British rule in the Victorian period.

Justice Durie's recent reference to tribes as nation states is an example of the importation of North American law. Such an intrusion, to use a technical term, is a catachrestic reading of New Zealand's British past. Catachresis is an intrusion into a text of content that makes no apparent sense within its structure.

Catachresis has in recent times been used by post-colonial theorists as a deliberate deconstructive technique to render signs and meanings indeterminate. Maori practised 'catachrestics' brilliantly and effectively when they refashioned kingship in their own image during the 1850s and 1860s. Many settlers responded with contempt because they understood only too well what Maori were doing. When Colonel Russell insisted in 1862 that there was " One Queen, One Law, One Bible" in New Zealand he was trying to correct the catachresis. Today, however, Maori are insisting on the determinacy rather than the indeterminacy of the signs and meanings that the Treaty has left us.

There is a need to recover 19th century constitutional languages from the incomprehension that currently shroud them so that we can come to some understanding of our experience of British power in New Zealand. If we can do this, if we can re-enter the thought world that animates these languages, living or defunct, we are then in much better shape to commence together the responsible dialogue needed to build a new language of 21st century nationhood. We will also be able to avoid an atavistic reversion to Victorian-era constitutionalism and racial institutionalisation, dressed up and is understood as indigenous rights.

Which brings us to the credentials of the liberal state. The liberal state is to be judged by how it facilitates and resolves political dialogue. An illiberal state or electorate suppresses dialogue. New Zealand is a liberal polity that has been accommodating an enriching and transformative race relations dialogue for a generation now. It must not allow a poverty of language and understandings to de-rail it.

New Zealand's liberal state is the best model we have for political dialogue on how we live together. Let us think twice before we compromise it and revert to the heterogeneity of the mid-Victorian world.

**** ENDS ****

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