Who belongs? National (but not international) judicialized mega-politics

Ran Hirschl

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In a follow-up project, we continue that line of inquiry by exploring the statist jurisdictional claim for monopoly over questions of immigration, naturalization and citizenship, and over narratives of collective identity more generally. Whereas such core questions of membership and belonging have been judicialized extensively at the national level, they seldom, if ever, are subject to judicialization at the international level. As such, they provide an effective test-case for assessing the limits of international adjudication of mega-politics. By delineating the “holes” in which judicialization of mega-politic generally does not occur at the international level, the analysis suggests that the strategic logic that Hirschl and others have identified as fueling the judicialization of mega-politics at the national level may give way to a deeper sovereigntist-preservationist logic of upholding to the very essence of statehood as requiring a degree of control over a defined territory and its population. The latter is here translated into an endeavor to ultimately sculpt and regulate the boundaries of membership in the body politic. By corollary, these boundary-making powers, divisive and mega-political as they are at the national level, highlight the improbability of curbing trends of resurgent nationalist populism (and the exclusionary “us versus them” rhetoric that it frequently yields) through trans- or supra-national judicial bodies.