PROPUESTA TEÓRICA Y METODOLÓGICA PARA EL ESTUDIO COMPARADO DEL DERECHO DE INMIGRACIÓN.

Abstract

This articles endeavours to give a theoretical and methodological proposal for the comparative study of immigration law. Immigration today is a structural element in almost all industrialised countries, and ultimately it is a phenomenon that is radically transforming the foundations of modern states, because it expresses the need to overcome the inherent limits in the idea of «national» as well as the difficulties that the «non-national » poses for traditional legal reasoning. The proposal furnished here in fact begins by stating the transformation: Mechanisms for the protection of rights have finally made possible the consolidation of a legal/constitutional status for foreign citizens that could hardly have been foreseen in the light of the restrictive tendency that began with the economic crisis of 1973. So, what this article proposes is not so much an analysis of existing regulations on immigration, as an analysis of the gradual process of construction of this protection for foreign citizens. And to do so, the article suggests using the judicial instrument (strong in the case at hand and flexible to address the lack of precise, definitive legal solutions), the comparative method (which in addition to showing the different responses given by different countries' legislation, reflects on the different paths taken to reach solutions whose result is often very similar), and two conceptual categories (precarious rights and emerging rights, which reflect the wavering, divided tendency of courts in response to the phenomenon of immigration).