Patrolling the boundaries of belonging? Courts, law and citizenship

Courts and law play a central role in patrolling the boundaries of belonging to political communities, influencing who is included and who is excluded as citizens and/or rights holders. This chapter explores the complex ways in which courts mediate who gains access to different layers of citizenship. We also highlight areas where courts are of little importance. Scholars have long acknowledged that citizenship is about more than nationality. It is about a deeper sense of belonging. Indeed, early theories of citizenship – such as T.H. Marshall’s well known exposition of citizenship as consisting of civil, political and social rights – were developed by scholars who were interested in overcoming exclusionary political practices.1 For example, early democracies linked property rights to political rights for adult men,2 and also denied a majority of adults – women – rights to own property and vote despite both populations’ uncontested belonging to the nation.3 Similarly, states have long granted passports to other marginalized groups while simultaneously denying them civil rights enjoyed by other nationals. The consequences of this denial can be profound, resulting in ‘invisibility, the erasure of the individual from membership in the community’.4 Courts have played important roles in regulating this type of belonging for groups of people excluded on the basis of perceived differences related to race, gender identification, sexuality and (dis)ability, among others. The rights consciousness and agency of social movement activists and organizations in mobilizing both legal and political institutions has been key to progressive developments in these cases.5 Christian Joppke offers a framework for thinking about the ‘fullness’ of belonging within and beyond nation states.6 He distinguishes between three dimensions of citizenship: citizenship as status, which concerns state membership and the rules of access