The Nation as 'The Public': The Resilient Functionalism of Public Law

Abstract

This paper defends the resilience of the concept of public law in the context of privatization on the one hand and globalization on the other. National identity and its relationship to public law can be situated in the context of each of these processes of change, but the highly particular relationship between the nation and the state which emerged with the modern, classical form of public law is in many ways a discrete concern, not unaffected by privatization or globalization, but sufficiently robust to remain the central dynamic in legitimising democratic rule today. Although the relationship between a people and its polity is inevitably affected by normative developments beyond the state and by the arguably diminishing public space within it, there is also and perhaps paradoxically considerable evidence pointing to the resilience of national identities and the power of states; trends which challenge the early 21st century prognosis that we have entered a post-national era. The primary focus of the paper is upon the ‘resilient functionalism’ of public law in continuing to support the important relationship between the nation and the state. It begins by outlining the functionalism of public law in its broadest sense, tracing its historical development as a discrete subject. Secondly, it explores further how public law’s primary role in the modern era has been to facilitate the relationship between national identity and the state. And thirdly, it offers empirical evidence to defend the ‘resilience thesis’ and the ongoing importance of public law as facilitator of the continuing, albeit changing, relationship, between nation, national identity and state.