Was There a Fascist Revolution? the Function of Penal Law in Fascist Italy and in Nazi Germany

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Was There a Fascist Revolution? the Function of Penal Law in Fascist Italy and in Nazi Germany This article was downloaded by: [Universita degli Studi di Siena] On: 09 May 2013, At: 07:25 Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Journal of Modern Italian Studies Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/rmis20 Was there a fascist revolution? The function of penal law in fascist Italy and in Nazi Germany Lutz Klinkhammer a a German Historical Institute, Rome Published online: 27 May 2010. To cite this article: Lutz Klinkhammer (2010): Was there a fascist revolution? The function of penal law in fascist Italy and in Nazi Germany, Journal of Modern Italian Studies, 15:3, 390-409 To link to this article: http://dx.doi.org/10.1080/13545711003768592 PLEASE SCROLL DOWN FOR ARTICLE Full terms and conditions of use: http://www.tandfonline.com/page/terms- and-conditions This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub- licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. The publisher does not give any warranty express or implied or make any representation that the contents will be complete or accurate or up to date. The accuracy of any instructions, formulae, and drug doses should be independently verified with primary sources. The publisher shall not be liable for any loss, actions, claims, proceedings, demand, or costs or damages whatsoever or howsoever caused arising directly or indirectly in connection with or arising out of the use of this material. Journal of Modern Italian Studies 15(3) 2010: 390–409 Was there a fascist revolution? The function of penal law in fascist Italy and in Nazi Germany Lutz Klinkhammer German Historical Institute, Rome Abstract Did the fascist seizure of power cause a revolutionary change in the administration of justice in Italy? Did the fascist dictatorship transform the judicial institutions it inherited from liberal Italy? During the early phase of seizure of power (1923–1926), the fascist regime deployed existing instruments to influence judges and prosecutors by means of Ministerial instructions, threats of disciplinary measures or denial of career advancement. The first major innovation came with the creation of a Special Tribunal for Crimes Against the State in 1926, to punish anti-fascist activities and opinions. Although there is still a great deal of research to be done on the working of the ordinary courts, there is considerable evidence that both the courts and the magistrates were subject to an effective process of ‘fascistization’ and recent studies illustrate how the ordinary administration of justice provided an effective support mechanism for the more overt apparatus of repression carried out by the police, the fascist militia and, in the case of the occupied or annexed territories, the army. Although there were many striking similarities with Nazi policies, especially when it came to the working of the Special Courts, the fascist dictatorship was always less radical than its German equivalent and the differences became increasingly evident after 1939. Keywords Fascism, Italy, justice, repression, Nazism, Second World War. Did the ‘fascist revolution’ lead to a revolutionary organization of justice? To what extent was the administration of justice ‘fascistized’? Downloaded by [Universita degli Studi di Siena] at 07:25 09 May 2013 The day of the so-called ‘March on Rome’, 28 October, 1922, was later celebrated as a major revolutionary event by Italian fascists. Especially in the years after the regime’s tenth anniversary in 1932, the date marked the most important festivity in the new fascist calendar and a key instrument of fascist self-representation. In reality, the ‘March on Rome’ was in military terms little more than a well calculated bluff, but the fascists’ threat to use military violence if necessary to enter Rome had worked well: the crisis led the king, Victor Emanuel III, to adopt a legal procedure to appoint Mussolini as prime minister. Journal of Modern Italian Studies ISSN 1354-571X print/ISSN 1469-9583 online ª 2010 Taylor & Francis http://www.informaworld.com DOI: 10.1080/13545711003768592 Was there a fascist revolution? Mussolini was received by the king not at the head of his ‘victorious’ fascist troops but in a bourgeois morning suit. Although Italy’s constitution (the Statuto Albertino) was successively undermined by the fascists, the ways in which the take over of state power was achieved, and which Hitler tried to copy although without success until 1933, had important institutional consequences. Italy remained a monarchy and the king, who thanks to the Duce and the invasion of Ethiopia acquired the new title of emperor, continued to sign all laws and decrees. This was very different from the situation in Nazi Germany where after 1934 the office of the Reich President remained vacant. In contrast, Mussolini regularly went in person to the monarch’s residence in the Quirinale palace to report on matters of state. As a result, the transition from constitutional monarchy to fascist dictatorship in Italy took place step by step in a gradual process. Nor was this by any means irreversible, as would become evident in the summer of 1943 when after the king had deposed Mussolini he was arrested, following the motion approved by the Grand Council of Fascism at its famous meeting on 25 July in the Palazzo Venezia. The motion had called for Mussolini to restore the military high command to the monarch, a vote that implied a clear declaration of no confidence (De Felice 1996; Grandi 1983). Despite its revolutionary claims, from this institutional perspective fascist Italy remained essentially within the legal framework of the unified liberal nation state that had been founded in 1861.1 This was very evident in the first year of the fascist seizure of power when institutional continuity was the norm for both the state bureaucracy and the administration of justice. The oath to the monarch remained unchanged and so did the traditionally strong but indirect powers that enabled the Minister of Justice to influence judges and public prosecutors, either through withholding promotions, or by means of disciplinary measures and punishments, or simply by transferring magistrates quite arbitrarily to other and often uncongenial locations. It was established practice to give instructions to even the most senior judges, be they general attorneys and the public prosecutors at the Courts of Appeal, but sometimes even the Chief Judges of the appeal courts as well, by means of political directives, or circolari, issued by the Minister of Justice. These measures were by no means new and had been employed extensively by 2 Downloaded by [Universita degli Studi di Siena] at 07:25 09 May 2013 Giolitti (Neppi Modona 1973: 134). In fact until 1941, when the Minister of Justice Dino Grandi decided to reorganize the administration of justice, the fascist regime did not attempt to change the existing organization of the administration of justice or relation between executive and judicial power. Indeed, Guido Neppi Modona has argued the regime did not need to intervene to make the administration of justice more fascist. This was partly because the authoritarian nature of the pre-fascist Italian judicial system meant that such intervention was not necessary (Neppi Modona 1973: 136).3 However, in order to avoid conflicts with the judges and to remove potential difficulties facing perpetrators of fascist violence, the new government introduced a series 391 Lutz Klinkhammer of general amnesties (1922, 1923, 1925) for crimes committed during the years of civil war that had accompanied the fascist seizure of power (Ferrajoli 1996: 575; Neppi Modona 2007b: 343–4; Neppi and Pelissero 1997: 767).4 The only change in the instructions sent by the fascist Ministry of Justice was that as well as the public prosecutors and attorney generals, judges now also received direct instructions from the government. There were also some attempts to impose a fascist style on the administration of justice, especially by the first fascist Minister of Justice, Aldo Oviglio. Although he resigned after Mussolini’s ‘Discorso del Bivacco’, Oviglio deposed the Chief Judge and the General Attorney of the Supreme Court. Still more decisive was the reduction of the number of the courts which fell by 30 per cent. Fifty-four of 169 courts were closed, six of twenty-four courts of appeal and five civil sections of the Supreme Court were unified into a single section sited in Rome. These measures affected career and promotion opportunities and hence served to reinforce attitudes of obedience and accommodation on the part of the judges (Meniconi 2008: 184–5, 2006; Preti 1983: 38). The most important Minister of Justice during the fascist ventennio was Alfredo Rocco. During his seven years in office he made extensive use of the traditional means of relocation and promotion to discipline uncooperative judges or to reward others for their political accommodation, especially when it came to silencing political opposition after the assassination of Giacomo Matteotti. A new law approved on Christmas Eve 1925 (Law n. 2300, 24 December 1925) that was initially claimed to be temporary allowed for the suspension of judges who were allegedly not in keeping with the political directives of the regime and resulted in the early retirement of seventeen judges in 1926 (Meniconi 2008: 187).5 Thanks to these removals and the threat of inconvenient relocations for those judges who remained in office, Dino Grandi could hypocritically praise the administration of justice’s ‘new independence from political influence’, even though in reality the judiciary had been penetrated by members of the Fascist Party and the fascist style. Guido Neppi Modona, a former judge at the Italian Supreme Constitutional Court, is one of the most insightful analysts of the fascist administration of justice and the use made of the instructions issued by the Ministry of Justice during the ventennio.
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