Abdelmalek Sayad interprete di Hans Kelsen: elementi per una teoria critica del diritto delle persone straniere

Abstract

This article undertakes an in-depth analysis of a surprising and largely overlooked intellectual gesture: the tribute paid by the sociologist Abdelmalek Sayad to the legal philosopher Hans Kelsen in one of his final essays on the “double penalty” (double peine) affecting immigrants. In praising Kelsen for having rebelled against the “State thought” (pensée d’État), Sayad suggests an unexpected theoretical convergence between the two, whose backgrounds and disciplinary trajectories could not appear more disparate. This article argues that the profound value of this convergence lies in its contribution to the foundations of a Critical Immigration Legal Theory. To develop this thesis, the essay proceeds as follows. First, it juxtaposes the biographical and intellectual profiles of Kelsen and Sayad to illuminate the stakes of their unlikely alliance. Second, it reconstructs the essential elements of Sayad’s critique of “State thought,” drawing also on his intellectual relationship with Pierre Bourdieu. Third, it clarifies the specific critical instance Sayad identified in Kelsen’s epistemological framework—namely, his pure theory of law—as an instrument for liberating legal science from the categories imposed by the State. Fourth, it demonstrates a substantive convergence between Sayad’s sociological critique and Kelsen’s philosophical dismantling of the traditional doctrinal triad of “people,” “territory,” and “sovereignty” within the theory of the Nation-state. Finally, it underscores the strategic importance of a Critical Immigration Legal Theory, one capable of synthesizing Kelsen’s normative rigor with Sayad’s ethnographic analyses of legal practices and discourses. In an era where state violence and the violence of borders proclaim their victory, calling peace a pile of corpses and rubble, this project is more urgent than ever.