HPSD

UNESCO
09. 15/16th. 2011

"The Threat of the society of contempt.

Prof. Dr. Javier de Lucas

Catedrtico de Filosofa del Derecho y Filosofa Poltica
Instituto de Derechos Humanos.
Universidad de Valencia.
lucasfra@uv.es
jdelucas@colesp.org

CONTENTS: 1. The Threat of a society of contempt: 1.1.

Characteristics 1.2. Conditions. 2. Bulding the society of contempt: 2.1. The
immigration policy test 2.2. The dilemma regarding immigrants: Rule of Law or
State of Emergency. 3. Addressing the society of contempt: the antidotes.

1. The Threat of a society of contempt

The notion of a society of contempt is a category put forward by Axel
Honneth1, the German philosopher now leading the Institut fr Sozialforschung in
Frankfurt on which the approach I propound in these pages is to a great extent
inspired. I would like to remind you that the goal of Honneths work, starting with
his well-known essay, The struggle for recognition (1992), is to revitalize critical theory
through a moral and political grammar of social conflict, based on the theory of
reciprocal recognition. This goal, close to the analysis by Ch.Taylor and G H Mead
relies on Fichtes contribution about self-conscience as a social phenomenon (<Man is
only Man amongst Men>2), more than in Hegel or even Aristotle, of whom this
category is no doubt a heir.
The basic premise of his work is that the plans for personal self-fulfilment
(for emancipation, as we said) rely on our ability to know and build a rapport of
recognition with the world, with others, with oneself. He mentions three spheres for
this recognition, the sphere of love/friendship, the juridical-political sphere and the
social-cultural one, indispensable for achieving self-esteem, self-respect, and the
recognition of self-value. More specifically, the juridical-political sphere (the most
pertinent in this proposed assessment) is necessary because there cannot be a
conscience of ones autonomy (and dignity) if the individual is not recognized as a
universal subject, the holder both of rights and duties. The sphere of recognition is,
then, indispensable yet insufficient, because without the third sphere, that of socio-

1 See his La sociedad del menosprecio; also his seminal work, La lucha por el reconocimiento. La
gramtica moral de los conflictos sociales.
2 A key principle in practical philosophy stated in his Grundlagen des Naturrechts nach
Prinzipien der Wissenschaftslehre (Groundwork of Natural Law) ,published between 1796 and
1797, that he had anticipated in two letters written in August 1795, addressed to a Reinhold
and Jacobi.

cultural recognition, that of the esteem for values and abilities derived from cultural
identity, it is not possible to build self-esteem.
Yet Honneth perceives that the evolution of modern capitalism (as it had
been anticipated by MacPherson in his examination of the political theory of
possessive individualism) is oriented in such a way that hinders this relationship of
respect and recognition, and imposes a social pathology, a society of contempt and
exclusion. He argues that neoliberal capitalism has taken the notion of society to the
extreme as an aggregation (collection) of individuals motivated by the rational
calculation of their interests and their will to construct a place in the struggle to affirm
their self-interest. Just because of this, this notion of the world is unable to take into
account and even understand the conflicts derived from unfulfilled moral
expectations that, Honneth, on the contrary, considers to be the core of the social.
Therefore, the prospects for emancipation, for the good life, require the struggle
against social, ideological, political mechanisms generating the oblivion of
recognition.
1.1. The characteristics of the society of contempt.
Therefore, taking Honneths arguments as a starting point, I am trying to
propound that this category, the society of contempt, is today a threat, or rather, a
real risk. I mean the likely risk that we are building up the conditions and even the
elements implementing effective this model of the dialectics of recognition
institutionalizing contempt or rather scorn, as a way to treat some part of the
population. And I shall try to argue that such a prejudice underlies the insufficient
condition of our response to the challenges of immigration, and particularly, to the
demand of recognition and guarantees for the rights of immigrants. Even more, it
determines that response. That domain of immigration policies is one of the tests
available order to confirm that likely risk.
Besides, if I talk about a real, worrying risk is above all because in the
event of a settled risk, that would overwhelm this domain of the others that we think
we can

frame, extending its contamination to two types of demands democracy

cannot survive without, that is, it would end up affecting ourselves, all of us. That is so
because the extension of the society of contempt, as Ill try to argue, would mean the
abandonment of the conditions for the viability of a project intended to universalize

rights, particularly economic, social and cultural rights. And I must say that all these,
far from being a spurious category in the universe of rights, as reactionary thinking
claims, are inalienable demands from that project of universalization that is the
necessary condition of democratic legitimacy. Yet even more, as Ill also try to reason
out, the society of contempt cannot but harm some of the basic principles and norms
of the Rule of Law itself.
I have already said that my proposal has been inspired by Honneths
analysis, though reinterpreted in a sense that is not exactly the one formulated by
Habermas successor at the IFS in Frankfurt. As it is well known, Honneth holds,
following Ernst Bloch, that the complete integrity of man, his dignity, can be reached
only by establishing an appropriate protection in the face of various modes of offence
and personal contempt. That means the other way round that the integrity of human
beings depends essentially on the experience of intersubjective recognition. Honneth
investigates that connection between contempt and human integrity, an appropriate
premise for a normative theory of reciprocal recognition (suggested but not
developed by Bloch) in order to introduce a strong thesis in moral sociology: the
experience of personal contempt may become a crucial impulse in the process for the
development of society, since moral progress is the result of the struggle for
recognition, which in turn is the driving force behind the struggle for rights and the
Law. A process which, as Ihering could explain, is the key to the understanding of the
juridical.

1.2. The conditions of the society of contempt

Recently3, Honneth has emphasized again the importance of the demands for
recognition and the normative framework that must ensure its fulfilment, as the clues
to rebuild that model, in the framework of the debate on the European social model
about which Europeans seem to be not very clear regarding how or where to lead it
back. But his discourse is far from being the both reviled and phobotypical
multicultural discourse, that of vindicating cultural differences in esssentialist terms,
of the right to diversity anchored in identities formulated like holistic and static
categories from which the individual cannot escape.

See the interview with Alexandra Laignel-Lavastine for Philosophie Magazine.

The most interesting thing, in my view, about Honneths analysis is his

suggestion that the driving force of this demand for recognition --that in some cases
reaches a collective expresion that is close to anguish, if not despair, as it seems to
extend now over not a few countries in the EU--, would be the universal guarantee
that is, equal, not mechanical, uniform- of and access to social rights. An unpopular
prescription now, especially among a great deal of those self-designated reformers in
the face of the crisis (the necessary and inevitable social reforms) who are
carrying out quite the opposite
Maybe we havent paid attention enough to the fact that process of
dismantling these rights levers for real equality- results not only in a decrease in
purchasing power but also in the worsening of working conditions. The most
worrying outcome is precarization as a defining social condition in its deepest sense.
As Rocard remarked once, the logic of this stage of capitalism, that of precarization,
tries to reduce work to the condition of merchandise, the cost of which must be
cheaper, and the worker to the condition of an interchangeable object, whose need for
security is a hindrance to profit. Thats why a work of demolition of rules is needed,
beginning with working laws, originally designed to rescue the worker from a
relationship of unsurpassable inequality. Yet with the extension of precarization, it is
the status itself of the worker as the subject of law, as a citizen and protagonist of the
public space that may vanish down the drain. This is what happens not only with the
most openly neoconservative proposals but also with a great deal of these processes
of flexisecurity usually presented as inevitable.
Let us put it differently. With the loss of job stability, the increasing
commodification of the right to health, or the relativization of the right to social
welfare, workers (and even more those on the fringes like the young, the
unemployed, and specially the unemployed over 40) experience not only serious
difficulties for the fulfilment of their basic needs but also a process of uprootedness in
the deepest sense of personal and social disintegration, so lucidly described by the
French philosopher and essayist Simone Weil.
The virus of uprootedness grows and the social fracture grows with it,
particularly in generational terms and also the need to find alternative forms of
recognition out of the mechanisms that we created in the past and look now

powerless. The growth of fundamentalism, of epiphenomena like youth gangs, to

give just one example, has much to do with that need that we cannot fulfil through
the old ways of family, school or work. And if we talk about particularly vulnerable
communities among which no doubt immigrants will be found, the family life of
whom is not exactly easy, like their equal integration at school or work we can see
that some need grows exponentially to find that recognition through mechanisms
and practices fitting what we used to consider proofs of deviance, marginalization
and crime. Resentment grows too, a social venom more dangerous than aviary
pandemics.
Here it is, at the gates, if not settled down among us, the society of contempt: a
society in which social values, norms and practices institutionally sustain the
exclusion of recognition4 for some part of the population, the most vulnerable groups
today, those who need stronger protection consequentially. I mean, for instance, the
unemployed over 40, children, young people looking for their first job, the disabled,
retired people, refugees, immigrants (particularly women and unaccompanied
minors). The extension of that society of contempt is a project incompatible not only
with the universalization of rights but also, as Ill try to show, even with the
requirements of the Rule of Law. In any case, it is not a hypothetical threat but, I do
insist, a risk that we can already see in relation to the effects of migration policies
within the European Union regarding human rights and more specifically the
economic, social and cultural rights of immigrants. Because, no matter how strong the
rethoric of integration can be, sectorial and pro domo sua (for the benefit of the
welcoming market), there is no possible integration without equal rights.
Of course, I dont mean there is an intentionally unjust option in favour of that
social pathology. It is rather the inevitable consequence of the choices for options based
on the tenets of a certain model of market economy. Those principles end up
imposing that society of contempt, in which I want to say it again- social values,
norms, institutions and practices stand for excluding the recognition of some part of

I use this notion in his stronger sense, rooted in the Hegelian dialectics of Anerkennung,
developed particularly by Ch Taylor and A. Honneth himself, linked to the Kantian concept
of Respect and equality.
4

the population, those subjects that Zygmunt Baumann 5 has named outcasts of
modernity, actually constructed like infra-subjects on account of their superfluous,
replaceable, if not openly disposable condition (as dictated by the market), as by
definition are consumer items produced/imposed by that market, and that has
caused an era of uncertainty and fear, described by the Polish sociologist as liquid times.
In other words, I means the subjects for whom the process of objectification6 comes
true, the denial of the other as an autonomous subject, equal in dignity, in a new turn
of the screw of history, bringing us back to another model of apparent beauty and
prosperity, that of Athenian democracy, built on the institutionalization of exclusion7.
This process of objectification is a form of alienation leading to the oblivion
of recognition. Honneth reformulates this concept, coined by Marx in the first part of
Das Kapital and developed by Lukacs, Althusser, Adorno or Marcuse among others.
Objectification is in the midst of social pathologies, the outcome of neoliberal
capitalism. Reducing realities that are not things as such to the condiction of things:
other human beings are treated in a merely instrumental way, as objects, but also our
own personal abilities are just taken into account cosidering their economic value.
Honneth illustrates his analysis with examples of self-objectification from everyday
life, like the way we use to devise our curricula for job interviews or the way we look
for partners on the internet, symptoms of that social pathology. Maybe we should
bring into mind that this process stems from individualistic and economicist
rationality, the consequences arising from the rule of instrumental reason (Im
retaking old notions that some people consider defunct), from an economic logic
colonizing the normative order. And these are consequences that grow more and

See his Wasted Lives. Modernity and its Outcasts., Cambridge 2004, translated into Spanish as
Vidas desperdiciadas. La modernidad y sus parias, the work in which Bauman shows how the
process of globalization that initiated modernity has resulted in an ever greater number of
human beings devoid of the proper means for livelihood, and in the planet running out of
places to settle them. Hence the uncertainties and fears about immigrants and asylum
seekers and the growing importance in political discourse and agenda of the arguments
about fear and insecurity. See also, Liquid Times: Living in an Age of Uncertainty. Cambridge
2006
6 As proposed by Honneth in his book Verdinglichung (2005), especially part VI about the
social sources of objectification.
7 This is what I have called the Athens syndrome. See, for instance, de Lucas, Globalizacin e
identidades. Claves jurdicas y polticas, Barcelona, Icaria, 2006.

more intensely in a social context, that of techno-economical globalization ruled by

financial speculation.8
All this is more visible today, in this situation of crisis and specially when
the only prescriptions in the face of this crisis seem to impose relinquishing the social
state without any other alternative and also giving up a great deal of the legal rights
that many generations fought about in order to achieve their positivization as rights.
Indeed, this iron social surgery is forced upon us in apodictic terms, sending the
message that only the ignorant or the outmoded progressive could object to such a
painful yet necessary cure. In order to save the indispensable, we are told over and
over that further renunciation is needed, since weve been living <beyond our
means>. Yet in the face of those ukase, we can ask: who? And what about? Are rights
perhaps improper gains and therefore excesses to be curtailed?
In my opinion, this scenario of political proposals is centred on repeating
at least obiter dicta- over the naive condition, in the best of cases, if not purely and
simple irresponsible, of the regulatory ideal of rights and particularly of economic,
social and and cultural rights. All this shows clearly the collision course of the logic of
rights versus the laws of the global market, as shown by this market
fundamentalism (Stiglitz dixit) that has made possible this version of the casino
capitalism that led us to the financial crunch first and then to a social and political
crisis.
Thats why I remarked earlier that we look almost unavoidably poised to
bring forth this society of contempt, one in which the social taxonomy reproduces a
system of stratification based on price: you get the rights youre worth of. Or worse: a
society in which a minimal core of rigths are universally guaranteed, yet in which
other former rights (I emphasize this, economic, social and cultural ones ) just become

Anticipated incidentally in the lines of a poem written by Eugne Pottier, the author of The
Internacional, and sent from his exile in New York to his old comrades from the Commune in
which he guesses the devastating effects of that kind of globalizad market: it is his Laissez
faire, laissez passer (LEconomie Politique), dated June 20, 1880. Pottier wrote other
revolutionary poems and songs like Le grand Krack, En avant la classe ouvrire, Droits et devoirs,
La Sainte Trinit, La guerre, Leur Bon Dieu. The text of the beforementioned poem can be found
in the choice of his verse published by Editions Dentu. Obviously Portier does not use this
concept yet refers to a constant feature in the process of extending capitalism and the market,
a process not guided by free circulation a condition of free flows (necessary yet insufficient)but by the mania to achieve freedom to handle them, to place them in an orbit for the benefit
of the optimization of profit for those who dictate the rules of that market.
8

options desiderata- that each and everyone will try to make sure for themselves in
the free play of the market. And for a great part of the society those excluded from
that free play- these would not even be reasonable expectations, just unaffordable
privileges. As if that werent enough, the social stigma of contempt will fall on those
excluded: losers, incapable and even parasite. The virus of contempt spreads over, as
Philiph Roth remarked in his novel The Human Stan, and reverberates twice, since it
causes

not only social exclusion but another pathology, self-contempt, in the

despised .

2. Building the society of contempt

All that Ive tried to remark so far regarding the building of a society of
contempt is shown as on a testing ground in the construction of immigrants as secondclass citizens, through the instruments of immigration policies, with the strong
support of not a few media.
2.1. The immigration policy test.
Indeed, the process of stigmatizing immigrants, socially constructed as a
threat or risk, is one of the factors resulting in everyday discriminatory practices,
more dangerous as these seem <justified> in front of the people shown as elements of
insecurity, unfair competition in jobs and public services, and a threat to ones own
identity. In creating this stigma, the instruments of migration policies play a role that
we cannot ignore.
If I can formulate it like this, what causes more anxiety is not not only- the
harm done to these groups of foreign population (immigrants, asylum seekers),
stigmatized, even persecuted in an indiscriminate and shameful way. I dont intend
to make this harm relative: how serious this is can be illustrated by common practices
within the European Union, like tailor-made raids in nurseries and schools, random
arrests and questioning based on racial profiling, imposed by the police in order to
show that they are dauntlessly fighting illegal immigration. In this way, once again,
there is a contribution to present, irresponsibly, -to construct- the message that
immigrants (at least irregular ones), are the reserve army of crime, if not their
vanguard.

But the worst thing about this is the harm done to the Rule of Law, to
democracy and also to social cohesion and the ability to make a common effort to
overcome the crisis.

2.2. The dilemma regarding immigrants: Rule of Law or State of

Emergency.
I shall use another paraphrase again. In this case, a book of interviews with
the French jurist Danile Lochak, entitled: Face aux migrations, Etat de Droit ou tat de
sige9. As such, this alternative is not new and there underlies a repeated approach to
the presumed dilemma about liberty and security, that comes out specially whenever
serious threats appear, like terrorism or organized crime. And now with immigration.
The temptation is to opt for the legal logic of emergency, derogation or
suspension of some of the principles and norms of the Rule of Law when it comes to
regulating the legal status of those identified as a threat. In this case, theyre not
necessarily shown as elements openly posing a serious risk, just like glaringly
different qua foreigners. In a certain way, the most alarming trait is not that this
double logic, this simultaneous double standard in their legal status, has been
integrated, so there really is no confrontation between the system of the Rule of Law
tout court and possibly exceptional gaps, but the fact that this exceptional element is
seen as a structural condition, posing no contradiction.
Thats what it is all about, to suggest or, more seriously, to build through the
Law a vision of alienation bringing back the classic argument that should be termed
pre-democratic anyway- about the foreigners halving status. An unfair, nonegalitarian treatment, the justification of which lies in the fact of theit difference and
their provisional presence. Indeed this presence is considered, if not a surprise or a
risk liable to suspicion,

like a temporary, provisional phenomenon, strictly

dependent on some circumstances (the need to resort to workers covering the jobs not

See Face aux migrations, Etat de Droit ou tat de sige, Textuel, 2007

10

taken by the national workforce) that may change, necessarily modifying thus that
admitted presence.
In fact, what is offered to immigrants is not a real social link, a contract. It
is just a pale imitation of it: provisional, sectorial, depending on their profitability, as
proved by the fact that the crisis presses for cutting down their rights in the first
place, as if they had not gained them as their real holders, just like concessions or
privileges granted by our generosity of wealthy people, a condition that has now
vanished. And that makes them openly unwanted or, in other words, returnable,
poised on the brink of expulsion.
I remarked earlier that the most worrying thing is that all this may help
undermine the Rule of Law, since two rules of the game are introduced, or worse,
two simultaneous legal conditions, making possible for some critics like Cole to talk
about democratic schizophreny. Two rules of the game: opposite the Rule of Laws
own rules (legal safeguards, equality, presumption of innocence and favor libertatis),
those of the State of Emergency (uncetainty, discrimination, discretional measures
or even administrative arbitrariness lacking any check, criminalization and the
principle of suspicion.)
The

outcome

is

dualized,

non-egalitarian

society,

breeding

disintegrated subjects (though proclaiming the rethoric of integration) and hatching

the snakes egg, of racism and xenophobia, in some way institutionally incubated.
The society of contempt.

3. Addressing the society of contempt: the antidotes.

In order to fight the venom of the society of despise, that virus affecting both
recognition and an effective guarantee of immigrants rights, we must find antidotes.
Previously and on top of it all, we must begin by understanding that
working for the recognition of the rights of others, of their equal condition as subjects,
means working for the business of all, of all the others. That is, it means to abandon our
unilateral perspective, the one we use from our dominant position to cast a look on
others, as if their problems were theirs and theirs only, or alien questions one way or

11

another. I think this is a particularly useful foothold in order to understand the new
cjhallenges posed to us all by immigration.
Indeed the process of globalization today shows the need to surpass the
nation-state framework. We must overcome it, first of all, because the transnational
and even global condition of migratory movements demands instruments that rise to
the occasion. That is, it demands at least some capacity to coordinate departure,
transit and arrival countries for immigrants. We need only to think of the problems
affecting family reunion (a constantly threatened right), the terrible phenomenon of
the trafficcking and exploitation of human beings, or the situation of the
unaccompanied minors, since the effective guarantee for the protection of legal rights
at stake (were talking of basic needs) like the <superior interest of the minor>, in the
face of administrative practices undervaluing or even denying them, depends to a
great extent on the guardianship protection by judges and the administrative
institutions for the tutelage of rights, and the coordination, at least bilateral, maybe
multilateral (regional, international) of both.
Yet there is another dimension to that global condition. In order to address
the challenges resulting from the structural/global condition of the migratory
phenomenon and the continued influx of settling migrations (even those posed by the
unavoidable transformation of migratory phenomena originally intended to return
into setllement movements), it is more obvious than ever that the legal institutions for
the recognition and guarantee of rights cannot work only at the service of citizens in
its most restrictive way, identifying them with the nationals.
Immigrants are an exemplary case in point. In fact, it is already so in most
of the actual legal frameworks: those institutions, the task of which is to have the
guarantee of human rights made effective, must busy themselves with those living in
the sovereign territory, wether they are citizens or not, that is, wether they are
nationals or not. Because denationalizing rights is today a much needed step if we
really want to universalize them. This uncoupling of rights from nationality is a
necessary requirement for the contents of those rights to qualify as human rights and
therefore universal, given that universality means first and foremost equal freedom for
all human beings. Yes, equality, thats the key, the sine qua non condition to measure

12

out the real will to put in place, to advance legal globalization, in a substantial and
not simply territorial sense.
And this regards not only the activities concerning the coming and going
of

immigrants

(sometimes

referred

to

euphemistically

as

<return>

or

<repatriation/devolution>, when it is all really about expulsions. Even worse, the

goal of securing expulsions to third countries, through bilateral agreements the case
of Lybia and Italy is particularly striking -, aimed precisely at externalizing borders,
that is, at washing their hands out of the fate of those immigrant trying to arrive (or
intended to be expelled). This must be supervised, yes, but thorough attention must
be paid to the guarantees in the everyday implementation of the immigrants living in
the territory, no matter what their condition is, that is, a notable part of the
supervising activity by Ombudsmen must deal with discriminatory practices in the
administrative and policing sphere.
If I allow myself to point out those risks affecting the implementation of
the rights of those living among us is because there is a dangerous trend to
subordinate the implementation of fundamental rights to administrative conditions
that in no manner should be above them and even less submitted to discretional
interpretations (if not arbitrary) by the administration personnel. Rights, for instance,
like education, social services, other forms of social assistance, even the right to
health.
If this trend penetrates public opinion, some consensus will be then
created

(in fact, this is already the case) linked in my opinion to the logic of

emergency - bringing about the programs of political parties demagogically in search

of votes (aware that it may look profitable to present immigration as a
problem/handicap), challenging what rights mean. That is the way to ease an
escalation in decision-making not only against rights, that is, illegitimate, but also
illegal. For instance, right now in Spain, rights that should be guaranteed to
registered immigrants are more and more illegally subordinated because residence
registration, a mechanism particularly open and inclusive in Spanish law, is now
more and more subordinated to a valid work permit. To say nothing of those project
more and more settled in the EU, binding those rights to <Integration Contracts> (or
<Welcome and Integration Contracts>: the 2009 European Pact on asylum and

13

immigration also mentions the will to be integrated and the recent reform of LO
2/2009 in Spain as well) that hardly manage to conceal their condition of instruments
for forced assimilation and acculturation. The most serious thing about this process is
the way it develops the argument that an outstanding cultural difference might mean
legal incompatibility and justify a discriminatory treatment.
But let me consider two more specific domains for which attention must be
constantly paid:
1) First of all, the protection of vulnerable groups among immigrants
themselves: sans-papiers (without legal status), unaccompanied minors (MENAS) and
immigrant women.
* If we are talking about fundamental rights, it is obvious that these
cannot depend on the administrative condition of immigrants, on the irregular
condition affecting those without papers, but also those who have lost their residence
permit after getting it. Here the need to press the states receiving immigrants so they
ratify the UN 1990 Convention on the rights of immigrant workers and their families
must be emphasized.
* To say nothing on the regulations about MENAS (unaccompanied
minors). The return directive is still in force and is a flagrant example of the violation
of the UN Agreement on childrens rights and, in Spain, of the LO for the protection of
minors. Regarding the recent agreement by the EU Council of Ministers of Justice and
the Interior (June 3, 2010) that decided to a great extent pushed forward by the
Spanish presidency, thanks to the strong commitment of the new Secretary of State
for Immigration, that the Commission must give "priority to financial support for
specific programs and actions for unaccompanied minors with resources from the
European Return Fund for the 2008 -2013 period. Well, although their positive
aspects are without dispute, I think that, as long as the return directive remains in
force, these are considerably relative: indeed the agreement insists in giving "support
to the authorities of the countries of origin or return in managing devolution, creating
welcome centres to provide minors with care, whenever families could not be found,
to facilitate the reintegration of minors back into their social and cultural
environment and with a guaranteed utter respect for their interests". The devolution
of minors to any country other than those they come from is one of the most

14

controversial aspects of this EU decisin, since it refers to that disputed directive on

the return of immigrants.
Here comes out a doctrinal discussion of important consequences about
the interpretation of the two basic principles regarding the standard for the protection
of minors rights, fair treatment regardless of age, gender, origin, etc., and the interests
of the minor. The question open to debate is whether the former and the latter must
always demand repatriation, return, inasmuch as it means going back to their bloodrelated families.
As it has been strongly and rightly denounced, that if returning to their
families means going back to broken homes with no real guarantee for a proper
livelihood and the childrens rights (starting with the right to education and health),
the obligation to return to them must give up. Why shouldnt this be done in relation
to MENAS (unaccompanied minors)? Wouldnt this decision mean maybe
discriminating against them on the basis of their origin, when the most important
thing about them is their condition of minors to the extent of making others
irrelevant?
* And finally I cant help but emphasize a crucial question: the attention
paid to the respect for fundamental rights in police and administrative actions against
the trafficking and exploitation of women, a key example in gender-based violence (I
wont refer to the most obvious cases, abuse and and feminicide as a part of domestic
violence) that must be specially singled out for vigilance.
Regarding trafficking, an evidence of the globalizad market of human
beings, as Ive already remarked, we must underline the crucial role of coordinating
juridictional and administrative institutions watching over the guarantees for human
rights in their countries of origin, but also, I want to remark this, in transit countries
in watching over the situations involving the violation of rights suffered by women
and little girls, though the responsability of destination countries in watching over
these situations is without dispute.
Hence the importance of watching over the aim of providing information
to those immigrant women detained, and also to those in C.I.E.- (centres for the
internment of foreigners) about the possibility to enjoy some period for recovery and
reflection for the victims of traficcking and the possibility of a favourable treatment

15

for those cooperating with the Spanish justice in indicting those liable for these
crimes. In this way, it is obvious that it is not justified to automatically treat those
arrested in police operations against trafficking and prostitution only as irregular
immigrants working as prostitutes. A fortiori, the practice of summary expulsion,
frequent and almost automatically used, is even less justified.
Maybe I should remember a further difficulty, resulting in unappropriate
protection of the most vulnerable that is, women, even children submitted to
trafficking and exploitation stemming from the fact that the EU framework, taking
into account the incomplete adaptation of Palermo Treaty, prevents the victims of
trafficking coming from a EU member state from being considered as a victim.
2) Secondly, the so-called welcome and integration policies and their
frequent implementation by municipal or regional authorities, in direct contact with
immigrants. It is necessary to control that these policies will not be turned into
instruments to be imposed in a paternalistic way, with the continued denial of the
autonomus ability of immigrants to act in the public space, negotiate and share
decision-making. The essential testing ground against discrimination is the treatment
at school, the access to health and working conditions. Thats why, in the face of the
rethoric that is happy to proclaim integration and throw <intercultural parties> or
music, food and leisure multicultural workshops, we must specifically pay attention
to the administrative practice of municipal and regional/autonomous services
dealing with the fulfilment of these basic needs that are therefore fundamental rights
(even though these may not be liberty-bound, they are dignity-bound).
Ill finish here: There is a serious risk that our inability is not corrected
insofar as it is basically the result of the lack of political will and also the consequence
of a short-sighted look at the meaning of the migratory phenomenon, that is, a lack of
high mindedness, of ambition, of a global political prospect on behalf of the
policymakers accountable for those responses. It is an inability to understand the
radical dimension of the immigration challenge, since it touches the core of the
political and social link: who is entitled to belonging and speaking? Who is entitled to
be a citizen?
Those institutions accountable for the effective guarantee of rights cannot
be alien to the need for an effective guarantee of the rights of those who are or were

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newcomers at any given time, who must be recognized as citizens, the ones we insist in
treating like foreigners, in freezing them in their status as newcomers, talking about X
generation immigrants: as Hannah Arendt claimed about refugees (who will never
cease to be that, never will have the general status of citizens, because they will never
thoroughly be French, English, Americans), we could ask: will a time come when
they will no longer be considered immigrants and will abandon that state of double
absence (from their countries of origin and in their destination coutries) resulting in
this oxymoron of the invisible presence invisible, as mentioned by Sayad, the
clearest expression of contempt?
This year is the centennial of Albert Camuss birth. Let us remember his
advice about which side to choose, that of victims and vulnerable people. Not out of
charity or moralistic attitudes. Just because this is the option of the Law, the only way
to justify the task of the Law. This is the task, or rather, the challenge that we jurists,
but also mere citizens, face today: to turn it, as Ferrajoli says, into the rule of the
weaker.

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