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PHILOPOLIS constitutional law & jurisprudence

Building the Imagin(ed)(N)ation - Patrick Hanafin
Ficha Técnica
Volume I - 2007
Direito Constitucional e Filosofia - Nelson Saldanha
Sobre Hermenéutica y Relato - José Calvo González
A Propósito de Direitos (e deveres) - Nelson Saldanha
Building the Imagin(ed)(N)ation - Patrick Hanafin
Ética: Instrumento de Cultura, Justiça e Política - Flávio Marcondes Velozo
The Writer's Refusal and Law's Malady - Patrick Hanafin
Direito e Literatura
O método da narrativa e a voz das vítimas de crimes sexuais - Maria Clara Sottomayor
Defesa da Constituição
Legado Constitucional
Valores Constitucionais
Constituição e Socialismo
Constituição e Metodologia
Leituras, Olhares & Escutas
Coluna do Leitor
Artigos em linha
Página de Direito Universitário
Como colaborar...




We… must never forget that whatever we build in the imagination will accomplish itself in the circumstance of our lives.[1]


to kill a house, where great men grew up, married, died, I here declare a capital offence.[2]


We imagine that we remember things as they were, while in fact all we carry into the future are fragments which reconstruct a wholly illusory past… I had dreamed of the house so often on my travels that now it refused to be real, even while I stood among its ruins.[3]



Ireland is a country haunted by houses. To be more exact it is a country haunted by ruined houses. The ruins of the big house of the Anglo-Irish ascendancy or the abandoned cottage of the evicted tenant or the emigrant haunt the landscape. The dreamscape, too, is haunted by a past, which continues to dwell in the present.[4] The desire to possess oneself and one’s own nation, a desire to be self-determining has left the state marked. The trace of this national longing appears in a wide range of cultural artefacts from political and legal texts to artistic texts. Like Ireland, Yeats is haunted by houses, or, at the very least, the desire for a place both in the sense of a permanent home but also of a place in the politico-cultural sphere.[5] The need to have solid foundations, of being placed, marks Yeats’ life and writings. The need to create a certain identity, which he then projected onto the public sphere, was as true of his cultural nationalism as much as of himself. This identity was intimately linked to a place, real or imagined, to which he belonged. The same is true of nationalist thinking with its desire to reclaim its lost territory. Similar though this line of thinking might be its substance differed markedly.

The postcolonial Irish Free State was not the home for which Yeats yearned. His idyllic Ireland of the ascendancy big house imbued with Celtic characteristics was hardly to be found in the tenemental reality such as that evoked in the plays of Sean O’Casey. The new postcolonial home was not grand but it did share with its gothic ancestor an air of ruin, discord and unfinished business. In order to attempt to fill the lack at its core the nation attempted to imagine itself as whole in the foundational document of the polity. In this vision, a father figure, Eamon de Valera, comes from abroad (in this case, America) and brings the Law in the form of the Irish Constitution of 1937. However, unlike Rousseau’s Legislator, he doesn’t leave, leading to the freezing of this nation called Ireland in a distorted dreamscape of imagined memories and longings for the state’s missing piece. The constitutional scene is then one of attempting to fill this longing by some textual fantasy of a complete and bounded nation, the nation as crypt of dreams of belonging. The projection of the happy rural Irish nation constructed by the Constitution is particularly poignant when compared to the painful, empty, alienated reality of the postcolonial subject.

Yeats, the displaced father, or disinherited heir to the national legacy, proffers an alternative vision, nonetheless fanciful, in A Vision, described by one critic as a “Celtic constitution”.[6] De Valera’s vision for the new nation was entabulated into law in the of the 1937 Constitution. In this aspirational document of longing and belonging Yeat’s vision is covered by the “cold snows of [another’s] dream.” The poet of a Celtic constitution must sit in his tower and contemplate the death of a dream, and later, watch a very different Constitution, replace his.[7] The Anglo-Irish nationalist was excluded from belonging in a full sense to the new imagined community. For Yeats there was no place at the “[table] of the law”. Yeats, the poet of revolution, became a victim of his own success, redundant and excessive. Like other excessive characters in the political sphere he ended up in the antechamber, in this case the second chamber of the new Parliament, the Irish Free State senate. As Lloyd observes:

We may trace the reasons for this despairing exultation in the poet’s own loss of any sense of organic connection with the nation that was founded by Easter 1916… If [such dislocation finds] a kind of triumphant expression in the poetic declarations of an alternative Anglo-Irish tradition, the knowingly fictive, performative nature of that act is finally a mockery of any act of foundation claiming representative status. A tradition that finds expression only in its demise is the antithetical image of a state founded in the demise of its founders. Both are perpetuated only in the recurrent act of self-creation, which must constantly locate the foundation of social forms in violence and death rather than continuing organic life.[8]


Yeats was not the only member of the broad alliance that was Irish nationalism who found themselves excluded from the new political order. Noteworthy also is the exclusion of feminist nationalists and republican socialists from the post-revolutionary political scene. Belonging to a nation, of necessity, entails exclusion. To belong is to exclude the other.

Ireland in the immediate aftermath of independence was a country of competing visions armed to the teeth and intent on obliterating each other. After the War of Independence and the Anglo-Irish Treaty of 1921, a split occurred between those who continued to crave the whole house of a 32 county Ireland and those who would make do with the “period conversion” of the 26 county state. This fracture over the Treaty led to a civil war where in yet another instance of postcolonial material repeatability the Free State replaced the British state as nationalism’s foe. The cultural nationalist’s rhetoric of death in service of the new nation is of little solace in time of civil war. The reality of Civil War is far divorced the romanticisation of the patriotic death:

As though to die by gunshot were

The finest play under the sun.




We had fed the heart on fantasies,

The heart’s grown brutal from the fare:

More substance in our enmities

Than our love.


Yeats, the poet-dreamer, surrounded by the excremental reality of civil war looks to an age and a time when the big house provided a space for contemplation and leisured ease. This threshold space of the ascendancy house was a barrier against the real:

Surely among a rich man’s flowering lawns,

Amid the rustle of his planted hills,

Life overflows without ambitious pains;

And rains down life until the basin spills,

And mounts more dizzy high the more it rains

As though to choose whatever shape it wills

And never stoop to a mechanical

Or servile shape, at others’ beck and call.


This threshold space kept the locals out but also allowed them in, in a limited sense, as servants. For the Anglo-Irish family this space as well as setting them apart from the peasantry locked them in a repository of gothic anxiety, so well evoked by writers in the Irish Gothic tradition such as Maturin and Stoker and more recently by John Banville in Birchwood.[9]  The gentry occupied the liminal position of being both Irish and British and neither.[10] The ascendancy house of Yeats’ poem, like the new Irish state, is built on death. In “Meditations In Time of Civil War”, Yeats recognises this uprooting and founding by violent forces:

O what if gardens where the peacock strays

With delicate feet upon old terraces,

Or else all Juno from an urn displays

Before the indifferent garden deities;

O what if levelled lawns and gravelled ways

Where slippered Contemplation finds his ease

And childhood a delight for every sense,

But take our greatness with our violence?


This mirrors the violence which preceded the building of the “big house”. The nation is constructed in the shadow of death. Yet this death is repressed, buried in the new house’s foundations. Commemorating itself to death, the nation never faces up to its violent past. The past, like the present, is founded on violence, on colonial dispossession. The aesthetic conceals the violent foundations:

            Some violent bitter man, some powerful man

            Called architect and artist in, that they,

            Bitter and violent men, might rear in stone

            The sweetness that all longed for night and day,

            The gentleness none there had ever known.


The Civil War has never ended. It became the state’s political leitmotif, the basis out of which the two main political parties of the postcolonial period, Fianna Fail and Fine Gael, emerged. Contrary to the rhetoric of redemptive nationalist blood sacrifice, nothing has changed. There is no birth of terrible beauty, only death partition and trauma. This redemptive note is absent from the post-conflict reality. Violence is sublimated but must always mark the post-war state with its spectral presence. The conflict is never-ending and endlessly repeatable. This is the “structural violence” which underpins society.[11] The spaces of violence created by this violent societal constitution, the shades of civil war continue to haunt the present. The irruption of, what poet Edna Longley calls, Northern Ireland’s ‘slow motion civil war’ has tragically demonstrated that this violence is always waiting to irrupt (Longley 1998 p.111). Society’s structural violence is made manifest in the urban and rural spaces of violence in post 1969 Northern Ireland. Thus, in the postcolonial period, Ireland has moved from civil war to slow motion civil war in the period from 1969 to 1998 to the present situation of virtual(ly) no war.[i]

The themes of sublimating loss or failure and the continuing trauma of founding violence persist in contemporary Ireland. The performance of the peace process occludes the trauma of violence and loss which continues to inhabit the recesses of the national psyche. The Belfast Agreement announces an ending to violence and a new beginning.[ii] However the language of political closure, of discrete endings and new beginnings must fail to account for or represent the trauma and violence which constitute the nation. As Jaki Irvine has so eloquently put it: ‘this failure which characterises many happy endings is due to the forced nature of that closure, the lingering suspicion that the complexities of the plot could not have resolved themselves that neatly, that obligingly, within the allotted time’ (Irvine 1994 p.105).

Artistic engagement with the conflict in Northern Ireland, unlike political discourse, has excavated the psychic trauma of violence. It is not surprising that so much contemporary literary and artistic endeavour contains such images of violence. Art becomes a space in which such traumas can be addressed and violent fantasies can be exorcised. This is a reversal of the manner in which the redemptive power of the aesthetic was viewed by revolutionary nationalism in Ireland in the late colonial period. In that period writers such as Patrick Pearse articulated the need for revolution and seld-sacrifice in the aim of founding a new nation. The immediate post Belfast Agreement period is a moment where the Agreement, which is viewed by the official discourse as a shining beacon of peace, is seen by many artists as a monument to a great loss. In such works the post-conflict city is seen as a corpse and the Agreement as a monument to this dead place. Those who live on the threshold between war and the total cessation of hostilities inhabit a precarious precipice. The Belfast Agreement in itself cannot erase the trauma etched on communal memories. This can only come about through a continued process of coming to terms.

Just as the Anglo-Irish Treaty of 1921 provoked discord rather than accord in Yeat’s time, the subversion of the logic of peace accords continued in subsequent attempts to settle the Northern Ireland problem. This can be witnessed in the resistant reactions to the Sunningdale Agreement of 1974, the Anglo-Irish Agreement of 1985 and the 1998 Belfast Agreement. The Belfast Agreement of 1998 is the latest attempt to write agreement into a postcolonial society scarred by violence. This palimpsest is written over and over again as if the constant encapsulating of agreement in a written text will bring peace about. What this process fails to recognise is that agreements like language always contain a heritage which cannot be erased by the writing of a new script. As Wills notes: ‘The implication is that the creation of a new language entails taking on the new world, moving away from that ‘same old patch of turf’… But… the ambivalent status of the ‘new’ is revealed, as once more it is seen to depend on… history’ (Wills 1993 p.229).

This is borne out by the fact that eight years later the process is not yet complete. Violence is sublimated but must always mark the post-war state with its spectral presence. The conflict is never-ending and endlessly repeatable. Violence is constructive of society, a means of supporting the mode of production rather than subversive of it. This destructive nature of society or ‘structural violence’ in Galtung’s phrase is that which is failed to be acknowledged in peace accords (Galtung 1975). As Huppauf has tellingly put it: ‘This space is characterised by an apparently unlimited and ubiquitous threat, despite the absence of visible actors’ (Huppauf 1997 p.15). The agreement, in other words, is not the end of the conflict. As Huppauf has noted in the context of post First World War Europe:

The violence generated in this space of destruction has no point of termination and is continuous by its own nature. This type of violence did not end with the end of the war. It returns as a constitutive element of the city and of life in modern industrialised society and is reflected in the art and literature of the present (Huppauf 1997 p.24).


The very process of peace is part of a way of thinking which refuses to acknowledge society’s structural violence. The political and legal documents which form part of this process become cultural testimony to this. As Huppauf points out:

The violence inherent in this process is of a constitutive nature and beyond the level of moral value judgements. It may well be that the apparent failure of pacifism and peace movements results from confusing these levels. If the modern period is characterised by violence inherent in the structure of producing and perceiving reality, then the moral approach adopted by all peace movements locates the problem on an inappropriate level (Huppauf 1997 p.18).



Unwriting Territory


In Corpus Jean-Luc Nancy interrogates the problem of the bounded territorialy distinct nation-state and its illusory quality. In questioning the naturaness of the bounded nation-state he speaks of the nation’s areality, meaning both thephysical space it inhabits and its lack of reality. Areality is an archaic French term meaning the nature or the property of an area an aire. The word however also lends itself to suggesting a lack of reality or else a suspended reality. The arealization of the nation leaves it in place but suspended, unbordered, exposed on the limit between spatial ethnic and linguistic differences. Nancy muses that maybe it is the fear on behalf of those who support a rigidly bounded nation, impervious to foreigners and all who are different to the presumed homogeneous national community of the nation becoming areal, of the disappearance of its sense as the event of its sense, that provokes such intense cultural separatism. As areal the nation is exscribed a community without ground, without territory, not contained either in the boundaries of a legal text or a fixed geographical space.

This undoing of textual and physical boundaries of a community constructed on the basis of its difference from other communities is inimical to those who claim strong links between territory, identity and nation. The thinking of a becoming areal of a community for Nancy is to be found in poetry. He states that “poetry is a cadastre, or else a geography” (Birth to presence, p.308). He writes: “The poet can be recognised by a certain surveyor’s step, by a certain way of covering a territory of words, not in order to find something, or to plant a crop, or to build an edifice, but simply to measure it” (p.308). This taking measure of, as opposed to enclosing, inscribing, imprisoning, speaks of not a colonising appropriating geography but one in which the surveyor disappears without leaving a trace, a building, or even an imprint.

The contemporary Northern Irish poet Paul Muldoon engages in a form of undoing accepted verities about Northern Irish identity. In his work he unworks and reworks myths of national identity, looking for links, discontinuities and contradictions where others would prefer unity and certainty. In his poems the seemingly mundane is interrupted by ghosts or memories from a troubled past, both private and political. The poem “Aftermath” which appeared in his 1998 collection Hay records this process and, in doing so, links the slow motion civil war of contemporary Northern Ireland to the earlier civil war of Yeats’ “Meditations”. In Muldoon’s poem past and present mingle, as do images of sacrifice, indifference and the banality of this glorious fight for the nation. Muldoon’s imagery brings the violence into one’s very home or self, revealing the intermingling of political violence and personal narratives. Yeats, however, does not conjure the immediacy, the randomness, the sheer brutality, when he speaks in almost theatrical stage direction fashion of the “dead young soldier in his blood”. For Yeats, the violence stays at the door:

A brown Lieutenant and his men,

Half dressed in national uniform,

Stand at my door, and I complain

Of the foul weather, hail and rain,

A pear-tree broken by the storm.


The poet complains of how bad the weather is, not of the atrocities carried out by his interlocutors. Muldoon, on the other hand, focuses on atrocity and indifference in “Aftermath”:



‘Let us now drink,’ I imagine patriot cry to patriot

after they’ve shot

a neighbour in his own aftermath, who hangs still

between two sheaves

like Christ between two tousle-headed thieves,

his body wired up to the moon, as like as not.




To the memory of another left to rot

Near some remote beauty spot,

the skin of his right arm rolled up like a shirtsleeve,

let us now drink.




Only a few nights ago, it seems, they set fire to a big

house and it got

so preternaturally hot

we knew there would be no reprieve

till the swallows’ nests under the eaves

had been baked into these exquisitely glazed little pots

from which, my love, let us now drink.[12]


In the last verse of this poem the reality of violence is distanced and translated or sublimated into a romantic occasion fuelled by the results of destruction. The association here between death and love, violence and regeneration is countered by the senseless violence of contemporary Northern Ireland and forces us to face up to the moral equivalence and indifference on the issue of revolutionary violence

The Civil War reappears in another poem in this collection “Third Epistle to Timothy” where Muldoon writes about his father’s early working life. The poem is set in 1923 the year in which Yeats wrote “Meditations In Time of Civil War” and evokes the spectre of recent violence:

A year since they kidnapped Anketell Moutray from his

home at Favour Royal,

dragging him, blindfolded, the length of his own gravel path,

eighty years old, the Orange county grand master. Four

A-Specials shot on a train

in Clones. The Clogher valley

a blaze of flax-mills and hay-sheds. Memories of the

Land League. Davitt and Biggar.

Breaking the boycott at Lough Mask.

The Land Leaguers beaten

at the second battle of Smithfield. It shall be revealed…

A year since they cut out the clapper of a collabor… a


a collaborator from Maguiresbridge.[13]



The image of blazing fields recalls Yeats “a house is burned” and the need to destroy in order to renew. The new nation can only come about through death and destruction. The poem also reminds us of the not too distant future when the reprisal killings of the 1922 civil war will be endlessly repeated in the “slow motion civil war.” This slow motion evokes a stretching of the emotions beyond breaking point, a heightened sense of fear of what is around the next corner or under your car. The brutal economy of retaliatory violence where the death of one is paid back fourfold leads to atrocity piled on atrocity until we suddenly, like the couple in “Aftermath”, become inured to violence.

This burning of 1922 which is remembered and repeated in the 1990s itself conjures up further memories of another time of burning for the poet in  “Third Epistle to Timothy”, that of the agrarian violence of the late nineteenth century with the evocation of the Land League and the names of Davitt and Biggar. This of course leads one to remember the even earlier agrarian violence of the Whiteboys. These earlier agrarian arsonists appear in another poem in Hay entitled “Hopewell Haiku”:



When I set a match

to straw – Whiteboys, Bootashees,

pikestaffs in the thatch.




From the white-hot bales

Caravats and Shanavests

step with white-hot flails.[14]


This, in turn, trips the memory back to the violence of the Plantation and so on in an unending cycle of violence and counter-violence, memory and counter-memory imprinted on the body and the land, as in Yeats’ pairing of the violence of colonial invasion and the counter-violence of anti-colonial insurrgency. This is enacted again today in the beat of the Lambeg drum on the 12 July or in the artistic violence of the mural or the singing of the rebel song. Past violence interrupts and is allowed to interrupt the present with the heavily laden signifiers of “our history”. Perpetually procrastinating, like the obessional neurotic, we turn away from the face of a death that has always already come. 



The artistic engagement with Northern Ireland’s violent past reflects Homi Bhabha’s argument in relation to the link between art and the political:

This act of writing the world, of taking the measure of its dwelling, is magically caught in Morrison’s description [of]… art as ‘the fully realized presence of a haunting’ of history… the critic must attempt to fully realize, and take responsibility for, the unspoken, unrepresented pasts that haunt the historical present (Bhabha 1994 pp.12-13).


Thus, the ethical responsibility of the writer is to speak on behalf of those pasts which political and legal discourse fails to address. Art may be seen as a means of working through melancholia to mourning. Poetry provides a template for a way of seeing politics as taking “the form of an effacement: a gesture which itself is, after all, commonplace, which indicates your place, mine, yet another’s, and which withdraws? (pp.308-9). Poetry here is the compearing of singular beings that Nancy calls the Inoperative Community, not the opus of its own immanence but the undoing of itself as itself, one whose gesture must also be irretrievably singular, finite, while the metonym of the nation-sate as people grounded in a land demands the horizontality of topographical and discursive borders, of frontiers, and myths. Poetry is what speaks the unheard of not only in language but also in our difference from each other, and from our history and from the spaces we inhabit. It is a making that is simultaneously an unmaking, a compearing of community that is also its withdrawal, an advent of sense in which sense is eclipsed, a speaking of what cannot be heard. This is opposed to the writing of law or politics which wants to leave national monuments in the form of parliamentary buildings, monuments in memory of dead heroes, textual monuments such as constitutions.

As Nancy has pointed out the danger with the politics of communal identity where one conceives of the community as having an identity that is immanent to it and that needs to be brought out and put to work. Thus the community as subject necessarily implies the community as subject-work. If one’s true or higher being or universal self is found in one’s scared communal identity, it becomes the work of politics to bring forth that immanent communal identity. This will entail conflict with other political identities. Politics for such groups is a matter of discovering the immanent or implicit identity of a group and setting it to work. This conception of politics as work relies upon and follows from the conception of community as immanent identity. The other way of looking is to think of a community which doesn’t put identity to work in this way, which is in Nancy’s words inoperative.

The hollow and parodic language of the legal document attempts to construct or put to work the polity. It creates the textual illusion of a community founded on a being in common. It creates the textual boundaries which enclose the citizen in the state. In this regard law seen as a stabilising instrument, a means of suspending in abstract ghostly form identifiable citizens who are simultaneously citizens with an identity. This identity being the invisible bond which fixes the citizenry in an illusory commonality. In other words the text of law creates or provokes a symbolic unity where none exists in order to secure the State in its territorial and textual space.  However this grounded commonality of the state shares discursive space with a formless community, which constantly interrupts it, as the possibility of community beyond the juridico-political state form, the possibility of being beyond the law. This other politics is one of disappearance.



[1] W.B. Yeats, “Is the Order of R.R. et A.C. to remain a Magical Order?”, in The Collected Letters of W.B. Yeats. Volume 3: 1901-1904, eds. J. Kelly and R. Schuchard, (Oxford: Oxford University Press, 1994), p.40.

[2] From W.B. Yeats, Purgatory.

[3] J. Banville, Birchwood, (London: Secker & Warburg, 1973), p.12.

[4] Today this haunting has been commercialised in the theme park trauma which is “our past”. See further R.F. Foster, “Theme Parks and Histories”, in R.F. Foster, The Irish Story: Telling Tales and Making It Up in Ireland, (London Allen Lane/The Penguin Press, 2001), pp.23-36.

[5] R.F. Foster, “Protestant Magic: W.B. Yeats and the Spell of Irish History”, in R.F. Foster, Paddy and Mr. Punch: Connections in Irish and English History, (London: Allen Lane/The Penguin Press, 1993), pp.212-232, p.224 has alluded to this: “Houses, and an insecurity about whether they will last, pervade Yeat’s writings”.

[6] D. Kiberd, Inventing Ireland: The Literature of the Modern Nation (London: Jonathan Cape, 1995), p.318 argues that one can view Yeat’s A Vision as a kind of Celtic constitution.

[7] It is noteworthy that the reissue of A Vision was published in 1937, the year in which the new Irish Constitution was introduced.

[8] D. Lloyd, “The Poetics of Politics: Yeats and the Founding of the State”, in D. Lloyd, Anomalous States: Irish Writing and the Postcolonial Moment, (Durham, North Carolina: Duke University Press, 1993), pp.59-87, pp.78-79.

[9] J. Banville, Birchwood, (London: Secker & Warburg, 1973). Indeed in Birchwood, the eponymous house of the novel’s title destroys those who dare to lay claim to it.

[10] An aspirational state to be found in an inverted form in the Belfast Agreement 1998 where there is recognition of “the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both”.

[11] See J. Galtung, Strukturelle Gewalt (Reinbek: Rowohlt, 1975).

[12] P. Muldoon, “Aftermath”, in Hay, (London: Faber and Faber, 1998), p.93.

[13] Ibid., p.100.

[14] Ibid., p.60.

[i] In this regard it is interesting to note an allusion by Baudrillard (2001 p.115) to the double sense of the adjective ‘virtuel’ in French, which also has the sense of potential or possible. Thus, even in a society such as Northern Ireland where the war is virtually over we must also recognise that war is virtual, the outbreak of violence remains a possibility. We live in the shadow of the gun. We exist always in a state of virtual war. 


[ii] The Preamble to the Belfast Agreement states that the ‘Multi-Party Agreement offers an opportunity for a new beginning in relationships within Northern Ireland, within the island of Ireland and between the peoples of these islands’.


Patrick Hanafin

Revista Electrónica de Direito Constitucional & Filosofia Jurídica