Abstract

How to reconcile the particularism of national self-determination with the universalism of human rights? How to protect the rights of migrants without compromising the ability of the state to control its borders and select foreigners with whom to share the national wealth? Faced with this problem, the liberal democracies of the XXI century are struggling to find a balance. The democratic logic gives priority to the majoritarian will of the citizens and to their distributional interests, thus threatening the basic rights of non-citizens. The liberal logic, by contrast, demands from the state equal protection of the liberties of each individual, regardless of his/her nationality, and, in doing so, it loosens the bonds of cohesion and solidarity that are embodied in the idea of nation. At the constitutional level, this antagonism results in two conflicting approaches - qualified here as «paradigm of citizenship» and «paradigm of territoriality » - which permeate the Italian constitutional jurisprudence on immigration and affect its consistency. This article suggests that adherence to the paradigm of territoriality is the necessary precondition for enabling constitutional courts to respond to the legal challenges that immigration poses to the rule of law.