The research unit of Ferrara has four members: Michele Pifferi, Alberto Spinosa, Ciro Grandi and Francesco D’Urso. Its tasks reflect the two complementary approaches in the analysis of the migration problem: the first one is the legal-historical investigation, the second one is the study of the current regulations with peculiar regard to both the criminalization of the illegal immigration and the interaction between state legal systems and supernational laws. With reference to the legal-historical approach, the research project will be divided in two phases. The first one will be focused on the juridical regulation of the ius peregrinandi in the Mediterranean states in the colonial and post-colonial era: a specific attention will be paid to (1) the relationship between legislations supportive and contrasting migration; (2) the state-building processes and national identity claims; (3) the exploitation of emigration as a colonization method; (4) inclusive or exclusive citizenship models; (5) individual safeguards in the destination and leaving states. The freedom of emigration and the right of the state to limit or control both arrivals and leavings were amongst the most debated topics by the European public law scholars, looking for a balance between subjective rights and public sovereignty. The historical study of the theories and legislations concerning the ius migrandi represents a momentous point of view to understand the contradictions of the European liberal state between the 19th and the 20th century: as a matter of fact, whereas the Charters of Rights aimed at defining and extending the individual rights catalogue granted to citizens, the freedom to cross state borders without restrictions was still denied due to prevailing public utility. The international law has never recognized the freedom to migrate as a natural fundamental right, always reaffirming the right/duty of the national state to regulate, limit and put it under conditions, considering the migration policy not only as an essential economic prerogative, but also as a strategic demographic and social tool, unavoidable by the state power. Whereas the bibliography on the social history of migration is rich, a deep analysis on the legal theory supporting the denial of the ius peregrinandi as a fundamental right is still lacking. The first phase of the research project targets to investigate this subject in a monographic essay, developing the analysis of the connections between racial paradigms, economic strategies, criminological theories and legal regulation of migrants in order to better understand the cultural and social roots of the immigration laws. The task of the research unit will be, firstly, to investigate the legal theories elaborated to legitimize special migration rules and, secondly, to study the juridical approach to migration in the Mediterranean area between the 19th century and the World War II from a non Eurocentric point of view. The research will compare the legal sources of the colonized countries before and after the colonization, the means of imposition of legal patterns by the European settlers, the frictions between international and national law, the discriminatory rationale put as a basis for the freedom of movement. The second phase of the research project will be focused on the consequences of the European emigration-colonization upon the national law of the colonized countries, analyzing the results of the confluence between different legal systems and the impact of legal transplant of European frameworks on North-African countries. The research unit will study, according to the most recent literature on this subject, how both the methodological and the pertaining to content decisions of the colonists impinged upon the civil and criminal law systems of the occupied countries. Furthermore it will be investigated how the “hybridization” of legal models affected the legislation enacted by the European settlers. As a matter of fact, the different cultures, traditions, religious beliefs of the natives made it necessary a sort of adaptation of the European legal schemes to the local ones: of a peculiar interest will be the study of the colonial family law and the development of a criminal law partly modeled by the social conditions and the ethical sensibilities of the aboriginal populations. In order to understand the mechanism of the “dual justice”, i.e. the coexistence of European administration of justice systems and indigenous traditional law, the research will focus on case-law, with special attention to the relationship between statutory law and customary law, between written texts and oral tradition, between individualistic justice systems and community justice. As for the punitive law, the research will investigate the debate on “cultural offences” as it was raised at first in the colonized countries and the importance of the criminological theories developed between XIX and XX centuries in Europe and US for the comprehension of criminality in the colonies. The second approach, which regards current law, will be carried out alongside both the phases of the legal-historical investigation. Besides the critical analysis of the incidence of European criminal legislations upon the indigenous customary law, the research will highlight the strict connection between the variable political choices in matter of immigration and the (ab)use of criminal sanction for tackling illegal immigration. As it traditionally fall into the exclusive competence of national legislators, the punitive discipline of illegal immigration has often symbolized the difficulty to strike a balance between the task of “order and security”, the full respect of fundamental rights of migrants and the principles of extrema ratio and proportionality of criminal law. The constitutional law and criminal law literature indicates Italian immigration law (d.gls. 286/1998, especially as amended in 2002) as a significant example of such difficulty. In the recent years, the transfer of criminal law competences from national legislators to EU legislator and the increasing influence of European Courts (ECHR and CJEU) on national criminal law systems have shattered the aforesaid exclusive competence, in a way that fundamental rights enjoy new chances of protection. After less than one year from the milestone case “El Dridi” (CJEU, 28th April 2011, c-61/11), which stated the inconsistency with EU law of the most important and frequently applied criminal offence under Italian immigration law, the research aims at investigating the aftermaths of the obligations stemming from supranational sources upon national legislator and courts in the perspective of the safeguard of migrant people’s fundamental rights.
Politiche migratorie e legal transplant nel Mediterraneo: strategie di controllo tra colonialismo e post-colonialismo
Pifferi
2012
Abstract
The research unit of Ferrara has four members: Michele Pifferi, Alberto Spinosa, Ciro Grandi and Francesco D’Urso. Its tasks reflect the two complementary approaches in the analysis of the migration problem: the first one is the legal-historical investigation, the second one is the study of the current regulations with peculiar regard to both the criminalization of the illegal immigration and the interaction between state legal systems and supernational laws. With reference to the legal-historical approach, the research project will be divided in two phases. The first one will be focused on the juridical regulation of the ius peregrinandi in the Mediterranean states in the colonial and post-colonial era: a specific attention will be paid to (1) the relationship between legislations supportive and contrasting migration; (2) the state-building processes and national identity claims; (3) the exploitation of emigration as a colonization method; (4) inclusive or exclusive citizenship models; (5) individual safeguards in the destination and leaving states. The freedom of emigration and the right of the state to limit or control both arrivals and leavings were amongst the most debated topics by the European public law scholars, looking for a balance between subjective rights and public sovereignty. The historical study of the theories and legislations concerning the ius migrandi represents a momentous point of view to understand the contradictions of the European liberal state between the 19th and the 20th century: as a matter of fact, whereas the Charters of Rights aimed at defining and extending the individual rights catalogue granted to citizens, the freedom to cross state borders without restrictions was still denied due to prevailing public utility. The international law has never recognized the freedom to migrate as a natural fundamental right, always reaffirming the right/duty of the national state to regulate, limit and put it under conditions, considering the migration policy not only as an essential economic prerogative, but also as a strategic demographic and social tool, unavoidable by the state power. Whereas the bibliography on the social history of migration is rich, a deep analysis on the legal theory supporting the denial of the ius peregrinandi as a fundamental right is still lacking. The first phase of the research project targets to investigate this subject in a monographic essay, developing the analysis of the connections between racial paradigms, economic strategies, criminological theories and legal regulation of migrants in order to better understand the cultural and social roots of the immigration laws. The task of the research unit will be, firstly, to investigate the legal theories elaborated to legitimize special migration rules and, secondly, to study the juridical approach to migration in the Mediterranean area between the 19th century and the World War II from a non Eurocentric point of view. The research will compare the legal sources of the colonized countries before and after the colonization, the means of imposition of legal patterns by the European settlers, the frictions between international and national law, the discriminatory rationale put as a basis for the freedom of movement. The second phase of the research project will be focused on the consequences of the European emigration-colonization upon the national law of the colonized countries, analyzing the results of the confluence between different legal systems and the impact of legal transplant of European frameworks on North-African countries. The research unit will study, according to the most recent literature on this subject, how both the methodological and the pertaining to content decisions of the colonists impinged upon the civil and criminal law systems of the occupied countries. Furthermore it will be investigated how the “hybridization” of legal models affected the legislation enacted by the European settlers. As a matter of fact, the different cultures, traditions, religious beliefs of the natives made it necessary a sort of adaptation of the European legal schemes to the local ones: of a peculiar interest will be the study of the colonial family law and the development of a criminal law partly modeled by the social conditions and the ethical sensibilities of the aboriginal populations. In order to understand the mechanism of the “dual justice”, i.e. the coexistence of European administration of justice systems and indigenous traditional law, the research will focus on case-law, with special attention to the relationship between statutory law and customary law, between written texts and oral tradition, between individualistic justice systems and community justice. As for the punitive law, the research will investigate the debate on “cultural offences” as it was raised at first in the colonized countries and the importance of the criminological theories developed between XIX and XX centuries in Europe and US for the comprehension of criminality in the colonies. The second approach, which regards current law, will be carried out alongside both the phases of the legal-historical investigation. Besides the critical analysis of the incidence of European criminal legislations upon the indigenous customary law, the research will highlight the strict connection between the variable political choices in matter of immigration and the (ab)use of criminal sanction for tackling illegal immigration. As it traditionally fall into the exclusive competence of national legislators, the punitive discipline of illegal immigration has often symbolized the difficulty to strike a balance between the task of “order and security”, the full respect of fundamental rights of migrants and the principles of extrema ratio and proportionality of criminal law. The constitutional law and criminal law literature indicates Italian immigration law (d.gls. 286/1998, especially as amended in 2002) as a significant example of such difficulty. In the recent years, the transfer of criminal law competences from national legislators to EU legislator and the increasing influence of European Courts (ECHR and CJEU) on national criminal law systems have shattered the aforesaid exclusive competence, in a way that fundamental rights enjoy new chances of protection. After less than one year from the milestone case “El Dridi” (CJEU, 28th April 2011, c-61/11), which stated the inconsistency with EU law of the most important and frequently applied criminal offence under Italian immigration law, the research aims at investigating the aftermaths of the obligations stemming from supranational sources upon national legislator and courts in the perspective of the safeguard of migrant people’s fundamental rights.I documenti in SFERA sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
