Abstract

Building on constructivist theories concerning national identity formation as well as institutionalist theories regarding the regulatory power of law (here, constitutional and international human-rights laws protecting religious freedom ‘subject to’ politically shifting claims regarding public order), this paper examines a pattern of ‘religious’ national identity formation in Muslim-majority Pakistan and Malaysia. Specifically, it illuminates a pattern of intra-religious boundary-formation grounded in what I call fundamental-rights lawfare—a pattern in which majoritarian political actors urge senior judges to operationalize existing religious-freedom provisions in ways that help to ‘securitize’ certain self-identifying co-religionists as provocative ‘heretics’ who, posing a risk to ‘public order’, lie outside the boundaries of each country’s majoritarian constitutional community.