Unforeseen Territories, Foreigners’ Rights and Infralegality. The Case of the European Roma Citizens in Naples

Abstract

Cities are privileged places of intersection between legal norms and the concrete practices of authorities, sometimes praeter legem and contra legem. In the field of immigration, the equation between effective recognition of rights and the discretionary power of administrative and police officials is increasingly revealed in the uncertainty of a particularly extensive power in the interpretation of rules. In some cases, this broad discretionary power inserts itself into spaces of anomie that make any illegitimate behaviour of the authorities difficult to control. We can think of the difficulties of access for foreign citizens to immigration offices, or the ‘defensive’ attitude of administrative officials in issuing tax codes and other essential documents to citizens belonging to ethnic groups such as the Roma, living in informal camps. The Roma people are the subject of a reflective reinterpretation of a legal consultancy activity, which was personally carried out in the Naples area, according to the dictates of grounded theory in the sociology of law (Ferraris, 2022). The investigation concerned the protection of the rights of European Roma citizens. It was part of ‘JUSTROM2’ - a legal clinic established within the Joint Programme of the Council of Europe and the European Commission. The research revealed how knowledge and power devices built on norms, as well as on their absence, can play a role in the elaboration of discriminatory representations (Ferrajoli, 2017), which affect the respect of rights of already marginalised people.

This study hypothesizes that there are areas of interpretation of norms by public administration and law enforcement authorities that, in their effects, produce a shifting boundary between legality and illegality, through not only the changing practices placed in the interstices of law, but also the potential rewriting of abstract norms. To trace this dynamic, I use the concept of infralegality. Moreover, the increase in recent years of restrictive legislative reforms of protections for foreigners, especially asylum seekers, generates the risk of a multiplication of such practices and uncertain behaviour on the part of the authorities, which must therefore not only be censured in the courts when illegitimate, but also looked at from a systemic perspective.