Ideology and Criminal Law: Fascist, National Socialist and Authoritarian Regimes 9781509910816, 9781509910847, 9781509910830

Citation preview

IDEOLOGY AND CRIMINAL LAW With populist, nationalist and repressive governments on the rise around the world, questioning the impact of politics on the nature and role of law and the state is a pressing concern. If we are to understand the effects of extreme ideologies on the state’s legal dimensions and powers – especially the power to punish and to determine the boundaries of permissible conduct through criminal law – it is essential to consider the lessons of history. This timely collection explores how political ideas and beliefs influenced the nature, content and application of criminal law and justice under Fascism, National Socialism, and other authoritarian regimes in the twentieth century. Bringing together expert legal historians from four continents, the collection’s 16 chapters examine aspects of criminal law and related jurisprudential and criminological questions in the context of Fascist Italy, Nazi Germany, Nazi-occupied Norway, apartheid South Africa, Francoist Spain, and the authoritarian regimes of Brazil, Romania and Japan. Based on original archival, doctrinal and theoretical research, the collection offers new critical perspectives on issues of systemic identity, self-perception and the foundational role of criminal law; processes of state repression and the activities of criminal courts and lawyers; and ideological aspects of, and tensions in, substantive criminal law.

ii

Ideology and Criminal Law Fascist, National Socialist and Authoritarian Regimes

Edited by

Stephen Skinner

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © The editor and contributors severally 2019 The editor and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2019. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Skinner, Stephen (Law teacher), editor. Title: Ideology and criminal law : fascist, national socialist and authoritarian regimes / edited by Stephen Skinner. Description: Chicago : Hart Publishing, 2019.  |  Includes bibliographical references and index. Identifiers: LCCN 2019021084 (print)  |  LCCN 2019022039 (ebook)  |  ISBN 9781509910823 (EPub)  |  ISBN 9781509910816 (hardback) Subjects: LCSH: Criminal law—History.  |  Criminal justice, Administration of—History.  |  Law—Political aspects. | Fascism—History. | National socialism—History. |  Authoritarianism—History.  |  BISAC: LAW / Legal History. Classification: LCC K5032 (ebook)  |  LCC K5032 .I34 2019 (print)  |  DDC 345—dc23 LC record available at https://lccn.loc.gov/2019021084 ISBN: HB: 978-1-50991-081-6 ePDF: 978-1-50991-083-0 ePub: 978-1-50991-082-3 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

For Catherine

vi

ACKNOWLEDGEMENTS For their support during the development and completion of this collection I would like to thank, in approximate chronological order: the Institute of Advanced Legal Studies in London for hosting the workshop on ‘Anti-Democratic Ideology and Criminal Law’ that I convened on 10–11 September 2015, at which the papers in this collection were first presented and discussed; all who attended that workshop, and in particular those who have become contributors to this volume – it has been an enriching experience to collaborate with them in producing this book; David Fraser and Cosmin Cercel in particular for their encouragement and valuable insights along the way; the numerous reviewers across four continents who found time to read and comment on the draft chapters; and almost last but never least the team at Hart Publishing for their interest and assistance in bringing this collection into the world. Finally, and as always, I thank Catherine for all her support and, quite simply, for everything.

viii

TABLE OF CONTENTS Acknowledgements��������������������������������������������������������������������������������������������������������������������� vii List of Contributors�������������������������������������������������������������������������������������������������������������������xiii Introduction: Glancing in the Mirror at Ideology and Criminal Law Under Fascist, National Socialist and Authoritarian Regimes�����������������������������������������������������1 Stephen Skinner PART I BELIEFS, FOUNDATIONS AND IDENTITIES 1. ‘Also and Above All a Regime of Justice’. Criminal Law and the Aesthetics of Justice Under the Italian Fascist Regime: The Role of Architecture and the Visual Arts��������������������������������������������������������������������������������������������������������������� 9 Luigi Lacchè Introduction�����������������������������������������������������������������������������������������������������������������������������9 Primum reprimere�������������������������������������������������������������������������������������������������������������� 10 Criminal Justice Implementing the Political Ideology of the New Regime�������������������12 Fiat iustitia pereat mundus?��������������������������������������������������������������������������������������������������15 Representing Justice: The Role of Architecture and the Visual Arts�������������������������������22 Fiat iustitia ne pereat mundus! Some (Provisional) Conclusions������������������������������������31 2. Criminal Law in Auschwitz: Positivism, Natural Law and the Career of SS Lawyer Konrad Morgen��������������������������������������������������������������������������������������������� 33 David Fraser Criminal Law in the Criminal State: Re-imagining the Jurisprudence of Nazi Law�������������������������������������������������������������������������������������������������������������������������33 History, Law and ‘Murder’ in the Camps: The Continuing Mythology of the Criminal State���������������������������������������������������������������������������������������������������������35 Konrad Morgen, SS Judge, and the Law of Killing������������������������������������������������������������38 Nazi Law, Natural Law, Positivism and the Jurisprudence of Konrad Morgen�������������48 Conclusion������������������������������������������������������������������������������������������������������������������������������55 3. Nazi Law as Non-law in Academic Discourse������������������������������������������������������������������� 59 Simon Lavis Introduction: Non-law and the Third Reich����������������������������������������������������������������������59 Constructing the Rupture Thesis: The Genesis of Nazi Law as Non-law�����������������������61 Reproducing the Rupture Thesis: The Persistence of the Non-law Paradigm���������������71 Conclusion������������������������������������������������������������������������������������������������������������������������������75

x  Table of Contents 4. Nazi Criminal Justice in the Transnational Arena: The 1935 International Penal and Penitentiary Congress in Berlin���������������������������������������������������������������������������������� 77 Richard F Wetzell Introduction���������������������������������������������������������������������������������������������������������������������������77 Transnational Penal Reform Networks�������������������������������������������������������������������������������79 Three Visions of Nazi Penal Reform�����������������������������������������������������������������������������������82 An International Congress in Nazi Berlin��������������������������������������������������������������������������87 Aftermath: International Criticism�������������������������������������������������������������������������������������98 Conclusion����������������������������������������������������������������������������������������������������������������������������100 5. Criminology and the Rise of Authoritarian Criminal Law, 1930s–1940s���������������������� 105 Michele Pifferi Introduction: The Historiographical Problem of Continuity or Rupture��������������������105 Rhetoric and Discourses: The Many Voices of Criminology�����������������������������������������108 The Divide Between Positivist Criminology and Totalitarian Penal Systems�������������112 The Constitutional Fallout of Criminology����������������������������������������������������������������������116 Conclusion����������������������������������������������������������������������������������������������������������������������������122 6. Classifying Law as Criminal in Apartheid South Africa������������������������������������������������� 125 Marika Giles Samson Introduction�������������������������������������������������������������������������������������������������������������������������125 The Outset of Modern Apartheid: The Two Faces of Law����������������������������������������������127 Criminal Law and the Authoritarian Crackdown�����������������������������������������������������������132 The International Crime of Apartheid������������������������������������������������������������������������������136 Conclusion����������������������������������������������������������������������������������������������������������������������������142 PART II COURTS, LAWYERS AND REPRESSION 7. Coercion and Consensus: Using the Law to Change ‘the Moral Character of Italians’�������������������������������������������������������������������������������������������������������������������������� 147 Alessandra Bassani and Ambra Cantoni Introduction�������������������������������������������������������������������������������������������������������������������������147 Economic Crimes����������������������������������������������������������������������������������������������������������������151 Common Crimes�����������������������������������������������������������������������������������������������������������������158 Conclusion����������������������������������������������������������������������������������������������������������������������������162 8. The Judiciary and Political Power Under the Fascist Regime in Italy����������������������������� 165 Riccardo Cavallo Judges and Fascism: An Open Question��������������������������������������������������������������������������165 The Judiciary and Political Power in Liberal Italy: An Outline�������������������������������������168 Aldo Oviglio’s Judicial Reform�������������������������������������������������������������������������������������������170 The Architect of Fascist Justice: Alfredo Rocco���������������������������������������������������������������172 Dino Grandi’s Reform���������������������������������������������������������������������������������������������������������174 Authoritative Voices from the Palace of Justice���������������������������������������������������������������177 In the Fascist Courtrooms��������������������������������������������������������������������������������������������������181 Conclusion����������������������������������������������������������������������������������������������������������������������������184

Table of Contents  xi 9. National Socialism and the Law in Norway Under German Occupation, 1940–1945������������������������������������������������������������������������������������������������������������������������� 187 Hans Petter Graver Introduction�������������������������������������������������������������������������������������������������������������������������187 Authoritarian ‘Rule of Law’������������������������������������������������������������������������������������������������189 The Legal Ideology of the National Socialist Party����������������������������������������������������������192 Statutory Measures of the Nazi Authorities���������������������������������������������������������������������193 Consequences for the Judiciary�����������������������������������������������������������������������������������������195 National Socialist Law in Action���������������������������������������������������������������������������������������197 The Measures Against the Jews������������������������������������������������������������������������������������������201 Conclusion����������������������������������������������������������������������������������������������������������������������������204 10. The Repression of Lawyers After the Spanish Civil War: The Case of Valencia������������� 207 Pascual Marzal and Aniceto Masferrer Introduction�������������������������������������������������������������������������������������������������������������������������207 The Military Punishment of the Defeated: Trials Against Republican Lawyers�����������������������������������������������������������������������������������������������������������������������������209 The Economic Repression��������������������������������������������������������������������������������������������������213 The Professional Purge��������������������������������������������������������������������������������������������������������214 Conclusion����������������������������������������������������������������������������������������������������������������������������223 Appendices���������������������������������������������������������������������������������������������������������������������������226 11. Yukitoki Takikawa (1891–1962) and Legal Autonomy in Interwar Japan�������������������� 229 Hiromi Sasamoto-Collins Criminal Law and Fascism: Unicity and the Decay of Legal Theory����������������������������229 The Takikawa Incident and the Attack on Dissent����������������������������������������������������������234 Origins and Application of Takikawa’s Criminal Law Theory���������������������������������������240 Conclusion����������������������������������������������������������������������������������������������������������������������������252 PART III DEVELOPMENT, EXPRESSION AND TENSIONS 12. Punishing the ‘Veterans of Crime’: Recidivism in Fascist Italy’s Rocco Code of 1930����������������������������������������������������������������������������������������������������������� 257 Paul Garfinkel Introduction�������������������������������������������������������������������������������������������������������������������������257 Common Recidivism: Definitions and Discipline����������������������������������������������������������260 Dangerous Recidivism: Classification and Confinement�����������������������������������������������266 Conclusion����������������������������������������������������������������������������������������������������������������������������274 13. Anti-democratic Emotions: Crimes of Honour Before and Under the Fascist Regime������������������������������������������������������������������������������������������������������������� 277 Emilia Musumeci A Law Without Emotions?�������������������������������������������������������������������������������������������������277 Emotions Through the Eyes of Legal Scholars�����������������������������������������������������������������279 Inside the Pre-unitarian Codes: The Dominance of ‘Irresistible Force’�����������������������281 During an Outburst of Anger or Intense Pain: The Zanardelli Code���������������������������283

xii  Table of Contents The Indifference of Emotional and Passionate States: The Turning Point of the Rocco Code�����������������������������������������������������������������������������������������������������������284 Gendered Emotions�������������������������������������������������������������������������������������������������������������287 Reinventing Honour������������������������������������������������������������������������������������������������������������295 Conclusion����������������������������������������������������������������������������������������������������������������������������296 14. Criminal Law and the Use of Force: Ideology and State Power in Fascist Italy and England in the Interwar Period������������������������������������������������������������������������ 299 Stephen Skinner Introduction�������������������������������������������������������������������������������������������������������������������������299 Article 53 of the 1930 Penal Code�������������������������������������������������������������������������������������300 The Use of Force in English Law����������������������������������������������������������������������������������������311 State Power and the Use of Force in Interwar Italy and England����������������������������������317 Conclusion����������������������������������������������������������������������������������������������������������������������������319 15. The Restless National Security Acts: The Absence of Crimes Against National Security in the 1940 Brazilian Penal Code���������������������������������������������������������������������� 321 Diego Nunes and Ricardo Sontag Introduction�������������������������������������������������������������������������������������������������������������������������321 The Exclusion of Political Offences: Contested Reasons������������������������������������������������323 Double Levels of Legality and Political Crimes (1930–36)��������������������������������������������324 Double Levels of Legality and Political Crimes (1936–40)��������������������������������������������332 Conclusion����������������������������������������������������������������������������������������������������������������������������342 16. The Law of Blood: Totalitarianism, Criminal Law and the Body Politic of Second World War Romania���������������������������������������������������������������������������������������� 345 Cosmin Cercel Introduction�������������������������������������������������������������������������������������������������������������������������345 A Legislation of Crisis: Law, State, History����������������������������������������������������������������������347 From Authoritarianism to Totalitarianism: The ‘New’ Constitution����������������������������353 Protecting the Nation: Blood, Outlaws and the Body Politic����������������������������������������356 Dictatorial Law and Order: Nationalism, Subjection and Fascist Ideology�����������������364 Conclusion����������������������������������������������������������������������������������������������������������������������������367 Conclusion: Investigating Ideology and Criminal Law in Legal History������������������������������� 369 Stephen Skinner Index����������������������������������������������������������������������������������������������������������������������������������������� 373

LIST OF CONTRIBUTORS Alessandra Bassani is qualified as an Associate Professor of Legal History and is currently a Lecturer in Legal History, State University of Milan, Italy. Ambra Cantoni is a lawyer practising in Milan, Italy. Riccardo Cavallo is qualified as an Associate Professor of Philosophy of Law and is currently a Lecturer in Philosophy of Law, University of Florence, Italy. Cosmin Cercel is Assistant Professor of Law, University of Nottingham, UK. David Fraser is Professor of Law and Social Theory, University of Nottingham, UK. Paul Garfinkel is Associate Professor of History, Simon Fraser University, Canada. Marika Giles Samson is a Doctoral Fellow in the Centre for Human Rights and Legal Pluralism, Faculty of Law, McGill University, Canada. Hans Petter Graver is Professor of Law, University of Oslo, Norway. Luigi Lacchè is Professor of the History of European Law, University of Macerata, Italy. Simon Lavis is a Lecturer in Law, Open University, UK. Pascual Marzal is Professor of Legal History, University of Valencia, Spain. Aniceto Masferrer is Professor of Legal History, University of Valencia, Spain. Emilia Musumeci is qualified as an Associate Professor of History of Medieval and Modern Law and is currently a Lecturer in History of Medieval and Modern Law, University of Teramo, Italy. Diego Nunes is Associate Professor of Legal History and Theory, Federal University of Santa Catarina, Brazil. Michele Pifferi is Professor of Legal History, University of Ferrara, Italy. Hiromi Sasamoto-Collins is a Lecturer in Asian Studies, University of Edinburgh, UK. Stephen Skinner is Associate Professor of Comparative Legal History and Human Rights, University of Exeter, UK. Ricardo Sontag is Associate Professor of Legal History, Federal University of Minas Gerais, Brazil. Richard F Wetzell is a Research Fellow at the German Historical Institute, Washington DC and adjunct faculty member, Georgetown University, USA.

xiv

Introduction: Glancing in the Mirror at Ideology and Criminal Law Under Fascist, National Socialist and Authoritarian Regimes STEPHEN SKINNER

This collection of essays is the result of a workshop on ‘Anti-Democratic Ideology and ­Criminal Law’ that was held at the Institute of Advanced Legal Studies in London in ­September 2015. The workshop sought to explore the ways in which criminal law was an instrument of social control and repression used by Fascist, National Socialist (Nazi) and other authoritarian regimes in the twentieth century, as well as a medium for expressing those regimes’ ideologies and objectives, explicitly and implicitly. In particular, the workshop sought to consider how those regimes defined themselves and formulated their criminal law in ways based on, or indicative of, ideological opposition to the values and methods of liberalism and democracy, including the rejection of post-French Revolution ideas of legal limits on the state, such as individual rights, Kantian ideas of individual worth and subjectivity, and liberal legality as a form of protective guarantee. Engagement with ideology also ranged more widely to consider other aspects of these regimes’ world-views, social and political values, understanding of law and uses of criminal law to achieve their aims and shape society. Exploring these issues required contextually situated analysis of these regimes’ origins and development; the values or mentality of lawyers and judges; questions of continuity, difference and comparison; and problems relating to deeper structures and connections across legal categories (state, public, private, criminal, administrative and constitutional). Before turning to the ways in which these matters are addressed in the chapters making up this collection, the focus on ideology requires some further clarification and theoretical positioning. As a concept, ‘ideology’ has a complex history and a range of contested meanings.1 Most studies usually point to the origin of the term in the work of the French philosopher and soldier, Count Antoine-Louis-Claude Destutt de Tracy (1754–1836), who introduced it to describe his so-called science of ideas, in which human sensation was deemed to be foundational to knowledge.2 In that sense, ‘ideology’ was used to indicate the bases of understanding of the world, thus linking ideas with reality through perception. It is in Marxist theory though that another concept of ‘ideology’ came to be used in a way that continues to influence modern understanding. Although that body of theory is not this collection’s starting point, and a detailed outline of its varied strands falls beyond the scope of this introduction, some key points can usefully be noted.

1 See,

eg, the discussion in T Eagleton, Ideology: An Introduction (London, Verso, 2007 [1991]). Destutt de Tracy, Éléments d’idéologie, Vol 1–4 (Paris, 1801–15).

2 Antoine-Louis-Claude

2  Stephen Skinner For Karl Marx and Friedrich Engels, ideology signified an expression of understanding that concealed or falsely represented reality, the conflicts in material conditions of social existence, and the illusory nature of beliefs about them.3 Although these writers did not present a singular or static interpretation, ideology was mainly deemed to be negative, deceptive and artificial, as a mask over reality and the power imbalance beneath the surface of social practices such as law. Reflecting on that interpretation in his later development of Marxist arguments, Antonio Gramsci indicated that ideology could be understood ‘in its highest sense’ as a ‘conception of the world that is implicitly manifest in art, in law, in economic activity and in all manifestations of individual and collective life’.4 Gramsci also elucidated the difference between a concept of ideology as a sort of foundational social understanding, with a ‘historically organic’ form that was ‘necessary’ for the formation of a social structure by creating ‘the terrain on which men move’, and ideology in a more negative sense as an ‘arbitrary, rationalistic or “willed”’ set of beliefs that create ‘individual movements or polemics’.5 In another subsequent analysis based on Marx, Louis Althusser developed an influential interpretation of ideology that related it to the state and its forces of repression, through the concepts of ‘ideological state apparatuses’ and ‘repressive state apparatuses’, with ideology said to be a mode of functioning that ensures state apparatuses’ cohesion and reproduction, and indicates ‘the “values” they propound externally’.6 In these critical, Marxist applications therefore the concept of ideology can be seen to have a predominantly negative meaning contingent on a specific theoretical model and method, although Gramsci’s interpretation of ideology as an implicit conception of the world, and Althusser’s explanation of it as involving a set of values with a cohesive force, both point towards potentially broader definitional elements that are similar to those adopted in this collection. In political history and the history of ideas, the concept of ideology is also used in a more general and non-Marxist way to mean the beliefs and values that shape political movements and the behaviour of their members, including Fascism, National Socialism and other forms of authoritarianism. While these sorts of regimes are not all the same in terms of the degree to which they formulated political beliefs and aims that could be deemed to constitute an ideology influencing their actions, or appeared to lack or even reject an identifiable p ­ olitical programme, ‘ideology’ has nevertheless been a key analytical concept both to signify the ideas attributable to these regimes and to define their very nature. A few examples (published in English) from this extensive body of literature are informative here. For the historian Stanley Payne, Fascist, National Socialist and other similar authoritarian orders were eclectic and ‘non-rational’ in their political programmes, but could be 3 This interpretation of ideology can be traced from K Marx and F Engels, The German Ideology (written 1845–46). See further H Collins, Marxism and Law (Oxford, Oxford University Press, 1982) 35–39. 4 A Gramsci (Q Hoare, ed, and G Nowell-Smith, trans), Selections from the Prison Notebooks (London, Lawrence and Wishart, 2007 [1929–30]) 328. 5 ibid 375–77. See also on Gramsci and other Marxist perspectives D Sugarman (ed), Legality, Ideology and the State (London, Academic Press, 1983). 6 L Althusser, ‘Ideology and Ideological State Apparatuses: Notes Towards an Investigation’ in L Althusser, Lenin and Philosophy and Other Essays (New York, Monthly Review Press, 1971) 96–98, 98: although focusing on the police and the army, here Althusser gives an apparently general indication of ideology’s functions. For a critical counter-interpretation note P Hirst, On Law and Ideology (London, Macmillan, 1979). Althusser’s analysis of law as an example of both forms of apparatus is discussed with regard to aspects of this collection’s subject matter in D Fraser, ‘Afterword – Through the Looking Glass: Thinking About and Working Through Fascist Criminal Law’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015) 199.

Introduction  3 said to have a distinctive basis in forms of radical and idealist ideology.7 As such, ideology was a foundational concept in Payne’s endeavour to identify core features of these sorts of regimes. Ideology similarly played a central role in the influential analysis developed by Roger ­Griffin, a historian of ideas, who undertook a detailed reclamation of the concept and used it in his definition of ‘generic fascism’, encapsulating both Italian Fascism and German National Socialism.8 For Griffin, fascism is an ideology and in its various specific manifestations has and promotes particular ideological programmes.9 Similarly, in another major study exploring the meaning of fascism in a generalised sense, the historian Robert Paxton noted the role of ideology as part of a possible definition of Italian Fascism and its ‘worldshaping project’, and that an ideological ‘world-view’ was similarly a key aspect of National ­Socialism.10 In a more recent historical analysis drawing on these various theories of Fascism and National Socialism, Salvatore Garau has usefully captured the diversity of their interpretations of ideology, and underlined the problem of determining the relative weight to be given to these regimes’ ideas and to their actions.11 This is a particular challenge in the history of Fascism, given the regime’s attempts to outline an ideological framework while at the same time emphasising the primacy of deeds over theories. Along similar lines, the political theorist Daniel W ­ oodley has stressed the importance of not focusing on (generic) fascist ideology in ways that appear to separate it from the ‘objective social mechanisms … and social structures’ involved in such regimes’ development and ­operation.12 His study points to the need to investigate the political programmes of fascist and related regimes in their historical contexts and with due regard to their distinctive systemic features. Lastly here, it is useful to recall how the historian Willie Thompson has noted the difficulty of developing ‘value-free inquiry’ into these regimes and their political projects by using the concept of ideology, partly because of their nature as repressive (and historically defeated) systems, and partly because (in the shadow of Marxism) the term ‘ideology’ itself appears to entail an implicitly pejorative inflection and a preconceived ideological perspective.13 These examples of varying interpretive approaches thus indicate that the concept of ideology has an important role to play in the study of fascist and authoritarian regimes, in terms of both their essence and attributes, but is itself problematic, theoretically contingent and needs to be situated with care. Rather than following one particular school of thought, or seeking to proclaim an a priori singular or supposedly neutral definition, this collection approaches the possible connection between ideology and criminal law as an open question. That is, each chapter reflects on the theme of ideology and criminal law in its own way, considering whether and to what extent the criminal law and related institutions and actors under these regimes ­indicate the influence of distinctive social, political and legal (doctrinal and theoretical) ideas, beliefs and values. This is based on the view that criminal law is an especially s­ ignificant 7 SG Payne, A History of Fascism, 1914–1945 (Madison, WI, University of Wisconsin Press, 1995) 7–8. 8 R Griffin, The Nature of Fascism (London, Routledge, 1991) 15–19, 26; see also ‘Introduction’ in R Griffin (ed), International Fascism: Theories, Causes and the New Consensus (London, Arnold, 1998), in which he traced the development of interpretations of fascism and the place of ideology in them. 9 Griffin (ed), International Fascism (n 8) 13–14. 10 RO Paxton, The Anatomy of Fascism (London, Penguin Books, 2004) 14–18. 11 For an overview see S Garau, Fascism and Ideology: Italy, Britain, and Norway (London, Routledge, 2015) 1–4. 12 D Woodley, Fascism and Political Theory: Critical Perspectives on Fascist Ideology (London, Routledge, 2010) 2. 13 W Thompson, Ideologies in the Age of Extremes: Liberalism, Conservatism, Communism, Fascism, 1914–1991 (London, Pluto Press, 2011) 1.

4  Stephen Skinner source of insights into a politico-legal system’s conceptual order in its historical context, due to the nature of criminal law as a medium for the expression and exercise of state powers of social control. The chapters thus trace the development of particular ideological elements in the law, use the law to bring to light the apparent role of ideology, or compare legal examples across systems to challenge presumptions about their regime-specific nature and effect. Importantly, seeking to understand the criminal law of Fascist, National Socialist and other sorts of fascist or authoritarian systems in this way involves examining them on their own terms and in their historical and legal specificity. This entails what can be an unpleasant process of ‘looking totalitarianism in the face’14 and trying to perceive the world, including law, from the perspective of brutal and repressive regimes that destroyed fundamental aspects of humanity and still represent the antithesis of liberal democratic values. Yet exploring some of the connections between these regimes’ ideologies and their law is a crucial step in analysing law’s development in the twentieth century, including the influence of the ‘anti-democratic critique’ in that period.15 This is not based on some sort of aberrant sympathy for such regimes, but rather a willingness to further the process of working through this dark chapter of recent history and its legal dimensions.16 Moreover, although the significance of referring to the lessons of history can seem to have been dissipated through repetition, part of this volume’s relevance lies in what it reveals about the ideologies and conceptual orders that interlink or differentiate political systems, their forms of law and related issues of state power and practice over time.17 While historical in focus, this collection has been produced in a period of increasing threats to liberal democracy and the rule of law from new forms of populist, illiberal and authoritarian orders that are seeking to challenge or even subvert democratic values and processes. The sort of historical reflection undertaken here can support understanding of how anti- or non-democratic ideology might influence uses of law today and, more fundamentally, the deeper nature and potentialities – both positive and negative – of law itself in either furthering or protecting against such agendas. The sixteen chapters collected here discuss nine different systems from around the world, comprising the principal examples of Italian Fascism and German National Socialism, as well as the National Socialist regime in occupied Norway, the apartheid regime in South Africa, the National-Catholic regime in Francoist Spain, the authoritarian military regime in interwar Japan, the authoritarian regime in 1940s Brazil, the authoritarian (or fascist) regime in 1930s–40s Romania, as well as, through a comparative study, English criminal law in interwar democratic Britain. It therefore spans European and non-European experiences of a range of ‘extreme’ regimes, from the early twentieth century to the 1990s. Many of the chapters consider the law before the regime in question came to power, and several situate them in international and comparative perspective. Although thematic categorisation is always open to various interpretations, these chapters are organised into three parts. 14 Compare P Ungari, Alfredo Rocco e l’ideologia giuridica del fascismo (Brescia, Morcelliana, 1963) 11–12. 15 ibid. 16 ibid; M Stolleis, Prologue: ‘Reluctance to Glance in the Mirror: The Changing Face of German Jurisprudence After 1933 and Post-1945’ in C Joerges and N Singh Ghaleigh (eds), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Legal Traditions (Oxford, Hart Publishing, 2003) 16–17; Fraser (n 6) 197. 17 Fraser (n 6) 198, 201, 206.

Introduction  5 The first part, ‘Beliefs, Foundations and Identities’ questions the extent and significance of distinctive, underlying values, objectives and world-views in relation to criminal law and justice, with chapters on the Italian Fascist, German National Socialist and South African apartheid regimes. In the first chapter, Luigi Lacchè explores the connections between the Fascist regime’s declarations about law and justice, and its representation of justice in architectural and artistic forms. Responding to the dominant discursive approach to Fascism and the use of criminal law in terms of repression, this chapter delves more deeply into the Fascist project by examining the ways in which the regime sought to develop a new concept of justice as one of its foundations. In the next chapter, David Fraser calls into question the classification of the National Socialist state in Germany as a criminal state, by discussing how that regime and lawyers working under it considered the Shoah to be lawful. Focusing on the example of the SS lawyer and judge Konrad Morgen, the chapter analyses the place of legality and its system-specific nature in the National Socialist system for killing Jews. Similarly, Simon Lavis challenges the common argument that the National Socialist state was criminal and devoid of recognisable law, by examining how this view has been constructed in English language scholarship, how it precludes engagement with the nature of Nazi law, and why such engagement is necessary. Also primarily considering National Socialism, in the following chapter Richard F Wetzell places the regime’s penal policy and criminal law in its transnational context, comparing key lines of discussion at the 1935 International Penal and Penitentiary Congress, held in Berlin, in order to identify the extent to which the Third Reich had, and sought to present, a distinct approach to criminal justice. Michele Pifferi extends this comparative perspective by exploring the connections between theories of criminology (encompassing criminal law, penology and constitutional aspects of the administration of criminal justice) and the rise of authoritarian criminal law systems, primarily Fascist Italy and Nazi Germany. His aim in so doing is to question the significance of continuity and the distinctive features of totalitarian radicalisation. Closing this part and bringing the discussion up to the late twentieth century, Marika Giles Samson discusses the nature and role of criminal law under South Africa’s apartheid regime, which became increasingly authoritarian as it sought to impose its racial segregation policies. This chapter involves an analysis of how that regime’s classification of political activities as criminal sheds light on the connections between its ideology and its use of law, as well as on international condemnation of apartheid. The second part, on ‘Courts, Lawyers and Repression’ includes chapters discussing the role of key legal institutions and actors in the repressive activities of the regimes in question, as well as those regimes’ repressive treatment of individual lawyers and the legal profession. Alessandra Bassani and Ambra Cantoni consider how the Italian Fascist regime used law and judicial processes to implement and communicate its ideological aims. Through an analysis of cases before the Special Tribunal for the Defence of the State, they show how its jurisdiction over ‘political’ crimes was expanded to include violations of currency l­egislation and the most serious common crimes. Focusing on the judiciary under Fascism more generally, Riccardo Cavallo explores the question of judicial independence and the ­relationship between judges and political power. Addressing issues of continuity and change under Mussolini, this chapter discusses the Fascist reforms of the judiciary and the operation of the judicial system, with a particular focus on criminal justice. In the following chapter, Hans Petter Graver examines the role of law, legal policy and legal institutions in the ­governance of occupied Norway from 1940–45. His analysis

6  Stephen Skinner demonstrates the centrality of law and legal procedures, especially through the courts, in the repressive practices of the German National Socialist occupiers and their Norwegian collaborators in the Nasjonal Samling, led by Vidkun Quisling. Turning from the courts to practising lawyers, Pascual Marzal and Aniceto Masferrer discuss Spain after the Civil War and the Francoist regime’s purges of civil servants and other professionals to remove ‘ideological enemies’. Concentrating on the case of Valencia, the chapter shows how lawyers’ ­ideological tendencies determined their ­experience under the regime: while many lawyers were complicit in, or generally not ­negatively affected by, its repressive measures, others fell victim to them. Similarly addressing the treatment of lawyers by an authoritarian regime, Hiromi Sasamoto-Collins ends this part of the collection with a chapter on Japan, in which she examines how the interwar military government persecuted the legal scholar, Yukitoki Takikawa, whose theory of c­ riminal law was deemed to be subversive. Showing how this repression of academic freedom signalled the regime’s fascistic turn, the chapter considers the wider question of the role of law and the legal profession in opposing or supporting the authoritarian state. The third part, entitled ‘Development, Expression and Tensions’ comprises chapters that explore the development of criminal law and its expression of ideology under Fascist and authoritarian regimes, as well as tensions in criminal law’s conceptual structure, within and across systems. This part begins with a chapter by Paul Garfinkel, who discusses the definition and punishment of recidivism under the Italian Rocco Penal Code of 1930. Extending its analysis chronologically to include pre-Fascist legal developments and geographically in order to address international perspectives, the chapter questions the originality of the 1930 Penal Code and the political characteristics of Italian and transnational legal culture. Also analysing the Italian example, Emilia Musumeci explores the place of emotions in criminal law before and under Fascism, focusing on crimes of honour and the ways in which they reflected ideology and gender role stereotypes as indicators of the Fascist legal system’s core values. The following chapter, my contribution, reflects on criminal law under Italian Fascism in comparison with the law in England in the same period. The chapter discusses the substantive, systemic and theoretical similarities and differences between the two systems’ justificatory provisions for the use of force by agents of the state, in order to question the extent to which ideological underpinnings were identifiable and distinct. Turning their attention to Brazil, Diego Nunes and Ricardo Sontag approach this collection’s theme by examining why political offences were absent from the 1940 Penal Code introduced under the authoritarian regime of Getúlio Vargas, a lacuna that appeared to indicate a contradiction with the regime’s politically repressive ideology, but which instead revealed its preference for more flexible forms of law in the fight against political opponents. In the closing chapter, Cosmin Cercel discusses the significance of the ideological concepts of the ‘organic nation’ and ‘blood’ in the anti-Jewish laws of authoritarian Romania during the 1940s, in order to question the interaction of the politico-legal imaginary, criminal law and constitutional law, thus pointing to the need for multilayered analysis in seeking to understand how this regime operated. Finally, the Conclusion outlines some of the possible connections between the chapters by thematic section, in order to highlight some common substantive and methodological elements. As each of the sixteen chapters is a self-contained study, the aim of this brief conclusion is not to revisit or reduce the arguments presented, but to highlight points of intersection that might serve to suggest pathways towards further research.

part i Beliefs, Foundations and Identities

8

1 ‘Also and Above All a Regime of Justice’. Criminal Law and the Aesthetics of Justice Under the Italian Fascist Regime: The Role of Architecture and the Visual Arts LUIGI LACCHÈ

Introduction This chapter deals with the relations between the words, concepts and slogans of Fascist justice and the symbolic, architectural and artistic transformation they underwent during the Ventennio (the 20-year period of Fascist rule from 1922 to 1942).1 In a general context of studies – under the heading of the ‘architecture of justice’ – which in recent years (especially in the US and France) have attracted the attention of architects and scholars of justice, thereby engendering a genuinely interdisciplinary perspective,2 studies of Fascism (numerous as they have been) have not yet explored this topic in anything other than an episodic fashion. This lacuna is still more striking if we consider the marked historiographical interest shown in the cultural, ideological and visual dimensions of Fascism construed as totalitarian experience. It is almost as if justice had remained ‘unscathed’ by Fascism and had not contributed to the construction of the ‘petrified’ Fascism described by Emilio Gentile,3 or had not been a crucial dimension in the consolidation of the political regime. The basic idea informing the study of justice systems in totalitarian regimes is that they give to their apparatuses such a twist as to make justice a mere application of political action 1 The chapter anticipates some findings of my book: L Lacchè, Representing Fascist Justice: Legal Culture and Images of Justice in Architecture and Visual Arts, forthcoming. 2 See Association française pour l’histoire de la justice, La justice en ses temples. Regards sur l’architecture judiciaire en France (Poitiers, Brissaud, 1992); K Taylor Fischer, In the Theater of Criminal Justice. The Palais de Justice in Second Empire Paris (Princeton, NJ, Princeton University Press, 1993); D Evans, ‘Theatre of Deferral: The Image of the Law and the Architecture of the Inns of Court’ (1999) 10 Law and Critique 1; J Robert, ‘The Historical Development of Courthouse Architecture’ (1999) 14 Zodiac 30; J Robert, ‘Les Palais de justice dans l’architecture contemporaine’ in La nouvelle architecture judiciaire: Des palais de justice modernes pour une nouvelle image de la Justice 63 (Paris, La documentation française, 2000); J Resnik and C Dennis, Representing Justice. Invention, Controversy, and Rights in City-States and Democratic Courtrooms (New Haven, CT, Yale University Press, 2011); J Resnik, D Curtis and A Tait, ‘Constructing Courts: Architecture, the Ideology of Judging, and the Public Sphere’ in A Wagner and RK Sherwin (eds), Law, Culture and Visual Studies (Heidelberg, Springer, 2013). 3 E Gentile, Fascismo di pietra (Rome–Bari, Laterza, 2008).

10  Luigi Lacchè aiming to repress and, if possible, eliminate any and every manifestation of opposition. So, the main image we first encounter when we study what it is that makes a political regime authoritarian is that of the criminal law system, as a tool of repressive strategies, a part, in short, of ‘Fascism as action’. Usually this is the most evident aspect. Less considered are instead the discourses concerning ideas of justice as key elements of the political and constitutional regime. A repressive dimension of the Fascist political regime was clear, but it by no means exhausts all justice issues. What is justice? What is injustice? Is justice merely a political tool in the hands of power? Or may justice (as jurisdiction but also as a set of ‘discourses’) preserve some measure of autonomy in the face of policies and acts of repression? This chapter will try to explore the attempt made by Fascism to build up a new idea of justice for a new political regime. I believe that justice maintains a certain degree of resilience so far as the designing of forms of repression is concerned. Justice considered as an integrated system formed by ideologies, doctrines, institutions, and prevention and repression activities had, during Fascism, an evident constitutional value. Seen from this point of view, justice was called upon not only to repress but also to institutionalise the regime, and indeed to orient ‘the new State’.

Primum reprimere Fascism, along with other twentieth-century authoritarian regimes, used criminal law as a key element in the implementation of its control and repression strategies. Criminal law not only served as a tool to affirm Fascist sovereignty4 and to bolster the regime’s power, but also as a special way to convey political ideologies. Fascist violence, mainly in the form of ­squadrismo,5 characterised the initial phase of seizing power. Its progressive ‘institutionalisation’ as ‘force of the State’ and ‘police and repressive apparatus’6 did not in fact ever bring about the complete elimination of violence from the core of Fascist ideology. Moreover, the judicial countering of anti-fascist activities did not begin with the authoritarian turn of 1925–1926. Already between 1923 and 1927 the leaders and activists of the Communist Party of Italy, Gaetano Salvemini and the editors of the clandestine magazine Non mollare, De Gasperi, Turati, Pertini, Parri, Carlo Rosselli – to name only the best known – were prime targets of the repression imposed by the ordinary courts deploying the penal and penal procedure codes of the Liberal, pre-Fascist, regime. Also, during the biennio rosso

4 Rocco’s quotation in S Skinner, ‘Introduction: Fascism and Criminal Law, “One of the Greatest Attributes of Sovereignty”’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015) 2. 5 M Franzinelli, Squadristi: protagonisti e tecniche della violenza fascista 1919–1922 (Milan, Mondadori, 2003); M Franzinelli, ‘Squadrism’ in RJB Bosworth (ed), The Oxford Handbook of Fascism (Oxford, Oxford University Press, 2010). 6 For an in-depth analysis see MR Ebner, Ordinary Violence in Mussolini’s Italy (Cambridge, Cambridge University Press, 2011); S Skinner, ‘Violence in Fascist Criminal Law Discourse: War, Repression and Anti-Democracy’ (2013) 26 International Journal for the Semiotics of Law 439.

‘Also and Above All a Regime of Justice’  11 (the ‘two red years’ from 1919 to 1920 when Italy seemed to be under threat of revolution) justice had played a significant role in defining the scope of state repressive activities.7 Moreover, the violence of squadristi – under the aegis of a ‘national purpose, immediate or mediated’ – had been amnestied since the decree of 22 December 1922.8 These ordinary trials, though with a political background, show some common aspects. On the one hand, it was not easy to construct, using the available instruments, a specific crime of ‘anti-fascism’. On the other hand, the criminalisation, politically motivated as it was, of expatriation – anticipating the measures taken against the exiles (fuorusciti)9 – became a sort of repressive passe-partout to strike at certain political leaders. But this kind of justice – with a few exceptions – can still be framed within the liberal conceptual order: in other words, with a view to pursuing material facts relating to political dissidents. Fascist revolution – as Vincenzo Manzini (1872–1957), one of the main founders of the scientific movement dubbed the ‘technical-legal approach’ and the future author of the Criminal Procedure Code, wrote in 192410 – does not need to demolish the current legal system all at once: It was not and it is not a matter of urgency to undertake a sweeping reform of our judiciary; and it is not a task of any government, even though it arose from a revolution, to implement reforms at all costs, let alone when there is no call for them.11

Up until 1924 it seemed possible to remain within the usual modus operandi of the liberal state so far as the administering of justice and especially managing the conduct of the judiciary were concerned: ‘purges’, discipline and a stronger hierarchisation, the use of administrative circulars to orient judges,12 as well as carefully weighed professional ‘advancements’ of those who toed the line were all deployed. The regime may well have had its doubts about some judges, but it had the necessary instruments to supervise and control the judicial power. In stressing such resilience in the judiciary as a system, we are better able to grasp its manner of working over the longer term, and thereby to appreciate

7 On this aspect see F Colao, ‘I processi ai “maggiori esponenti di idee contrarie al governo nazionale” prima dell’istituzione del Tribunale Speciale per la difesa dello Stato’ in L Lacchè (ed), Il diritto del Duce. Giustizia e repressione nell’Italia fascista (Rome, Donzelli, 2015); F Colao, ‘Il processo “Scimula Sonzini”. Politica e diritto penale alle origini del fascismo’ in F Colao, L Lacchè and C Storti (eds), Processo penale e opinione pubblica in Italia tra Otto e Novecento (Bologna, il Mulino, 2008); F Colao, ‘Processo penale e pubblica opinione dall’età liberale al regime fascista’ in L Garlati (ed), L’inconscio inquisitorio. L’eredità del codice Rocco nella cultura processualpenalistica ­italiana (Milan, Giuffrè, 2010). 8 F Colao, ‘Il volto della nazione nelle amnistie politiche del Novecento’ in K Härter and C Nubola (eds), Grazia e giustizia. Figure della clemenza fra tardo medioevo ed età contemporanea (Bologna, il Mulino, 2011). 9 F Colao, ‘“Hanno perduto il diritto di essere considerati ancora figli d’Italia”. I “fuorusciti” nel Novecento’ (2009) 38 Quaderni fiorentini per la storia del pensiero giuridico moderno 653. 10 MN Miletti, ‘La scienza nel codice. Il diritto processuale penale nell’Italia fascista’ in L Garlati (ed), L’inconscio inquisitorio. L’eredità del Codice Rocco nella cultura processualpenalistica italiana (Milan, Giuffrè, 2010) 63 ff. 11 V Manzini, Giustizia e politica sotto il governo fascista (Rome, Stab Poligrafico Editoriale Romano, 1924) (Partito nazionale fascista, Ufficio propaganda) 8. 12 C Storti, ‘“Un mezzo artificiosissimo di governo per ottenere con inganno e con vie coperte ciò che apertamente non si potrebbe ordinare”. Le circolari dei ministri di giustizia sul processo penale tra unificazione e fascismo’ in F Colao, L Lacchè, C Storti and C Valsecchi (eds), Perpetue appendici e codicilli alle leggi italiane. Le circolari ministeriali, il potere regolamentare e la politica del diritto in Italia tra Otto e Novecento (Macerata, EUM, 2011).

12  Luigi Lacchè the coexistence of elements of continuity and change13 marking the Italian path towards a ‘new’ system of totalitarian justice. The turning point of 1925–26 is both contingent and deeply rooted in the political and constitutional nature of Fascism. After the Matteotti crisis of 10 June 1924, in which the Socialist Deputy, Giacomo Matteotti was killed by a group of squadristi,14 Fascism began to stray beyond the traditional boundaries of the liberal order. Mussolini himself set a course towards dictatorship,15 by assuming full political responsibility for the actions of Matteotti’s murderers in his famous speech of 3 January 1925 to the Chamber of Deputies, and by subsequently authorising the restriction and repression of political freedoms. In 1926 the Tribunale speciale per la difesa dello Stato (Special Tribunal for the Defence of the State) was, symbolically as well as in practice, established as the ‘judicial’ institution seeking to declare the regime’s intention to affirm the idea of a new, political Fascist justice, which was to become, gradually and inexorably, the summit of the repressive system.16

Criminal Justice Implementing the Political Ideology of the New Regime If the criminal justice system in a state with totalitarian tendencies is synonymous with the term ‘repression’, we should not forget how important it was in institutionalising the new political regime and in giving direction to the new state. In the Fascist era all this is well represented by a figure such as Alfredo Rocco (1875–1935). We have to underline the fact that Rocco was appointed Minister of Justice on 5 January 1925,17 a mere two days after Mussolini had assumed full political and moral responsibility for Matteotti’s murder. Minister of Justice between 1925 and 1932, he was probably the most influential jurist and politician during the phase of the so-called Fascist revolution.18 Rocco made justice one of the main pillars of the new political regime. Rather than being under the spell of Fascism, as was the case with many other important jurists,19 Rocco was himself a real and ambitious

13 A Meniconi, Storia della magistratura italiana (Bologna, il Mulino, 2013). 14 See A Lyttelton, The Seizure of Power. Fascism in Italy 1919–1929 (London, Weidenfeld and Nicolson, 1973). 15 A Aquarone, L’organizzazione dello Stato totalitario, 2nd edn (Turin, Einaudi, 1965) ch 2. 16 On the Special Tribunal and Law No 1848 of 6 November 1926 see, among more recent studies, L Lacchè, ‘The Shadow of the Law: the Special Tribunal for the Defence of the State between Justice and Politics in the Italian Fascist Period’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015); L Lacchè (ed), Il diritto del Duce. Giustizia e repressione nell’Italia fascista (Rome, Donzelli, 2015); M Franzinelli, Il Tribunale del Duce. La giustizia fascista e le sue vittime (1927–1943) (Milan, Mondadori, 2017). 17 Rocco held various positions in the government from 1922. He was president of the Chamber of Deputies at the time that he was appointed Minister of Justice. See P Costa, ‘Rocco, Alfredo (voce)’ in I Birocchi, E Cortese, A Mattone and MN Miletti (eds), Dizionario biografico dei giuristi italiani (XII–XX secolo) (Bologna, il Mulino, 2013) 1703. See G Vassalli, ‘Passione politica di un uomo di legge’ in A Rocco, Discorsi parlamentari (Bologna, il Mulino, 2005) 49; G Simone, Il Guardasigilli del regime. L’itinerario politico e culturale di Alfredo Rocco (Milan, Angeli, 2012) 181. 18 Vassalli (n 17) 41 ff. ‘As Minister of Justice Rocco was the protagonist – although I would venture to say the author – of the radical authoritarian transformation of the institutions of the Kingdom and the construction of a strong legal system to sustain and defend the dictatorship’: M Sbriccoli, ‘Rocco, Alfredo’ in V De Grazia and S Luzzatto (eds), Dizionario del fascismo. II. L–Z (Turin, Einaudi, 2005). 19 See I Birocchi and L Loschiavo (eds), I giuristi e il fascino del regime (1918–1925) (Rome, Roma TrE-Press, 2015).

‘Also and Above All a Regime of Justice’  13 builder of systems.20 His role was decisive from the laws of 1925–26 to the new penal codes of 1930–31. During these years Fascism devised its main strategies, policies and tools in order to protect and to build the Fascist state. Criminal law and criminal justice were key elements of its strategies of repression and social control. Criminal law was thus a strong medium through which Fascist core ideologies were expressed. According to Rocco, the rise of Fascism was revolutionary first and foremost because it involved the transformation of the state, and the development of the Stato forte, or ‘strong state’.21 This involved breaking away from the previous, weak model of the liberal-democratic state, a process which in Rocco’s view really began in 1925–26.22 Rocco, considered to be the architect of the Fascist regime, thought of the machinery of justice as a vital component in this process of revolutionary transformation. However, this was not simply a question of new laws, but also and essentially a question of developing a new form of justice.23 In this context, the ‘strong State’ was to become a ‘totalitarian’ state.24 On 30 August 1925, in Perugia, Rocco delivered a famous speech – much appreciated by Mussolini25 – ‘La dottrina politica del Fascismo’ (‘the political doctrine of Fascism’)26 in which he illustrated the paradigms of the politico-legal ideology of Fascism.27 The main enemy was post-Enlightenment individualism, the common background to liberalism, democracy and parliamentarism. The state, and not the individual (as in the Kantian model, discussed further below) was the end of all life and all social activity.

20 ‘From 1925 to 1932 the political biography of Rocco coincides with the history of fascism and the period that signaled the end of the liberal State and the formation of the fascist regime’: E Gentile, Il mito dello Stato nuovo. Dal radicalismo nazionale al fascismo (Rome-Bari, Laterza, 2002 (1982)) 201. See P Ungari, Alfredo Rocco e l’ideologia giuridica del fascismo (Brescia, Morcelliana, 1963) 9; G Chiodi, ‘Alfredo Rocco e il fascino dello Stato sociale’ in I Birocchi and L Loschiavo (eds), I giuristi e il fascino del regime (1918–1925) (Rome, Roma TrE-Press, 2015), gives a convincing account of the relevance of Rocco’s nationalist programme for his future endeavours. 21 For further elements of Rocco’s politico-legal programme see Ungari (n 20); R D’Alfonso, Costruire lo Stato forte. Politica, diritto, economia in Alfredo Rocco (Milan, Angeli, 2004); S Battente, Alfredo Rocco. Dal ­nazionalismo al fascismo, 1907–1935 (Milan, Angeli, 2005); F Lanchester, ‘Alfredo Rocco e le origini dello Stato totale’ in E Gentile, F Lanchester and A Tarquini (eds), Alfredo Rocco: dalla crisi del parlamentarismo alla costruzione dello Stato nuovo (Rome, Carocci, 2010) 27; AJG Gregor, Mussolini’s Intellectuals: Fascist Social and Political Thought (Princeton, NJ, Princeton University Press, 2005) 38–60. 22 A Rocco, La trasformazione dello Stato. Dallo Stato liberale allo Stato fascista (Rome, La Voce, 1927) 7. This volume brought together the speeches Rocco had delivered in Parliament and the reports he submitted as minister in support of the new legislation. In its introduction Rocco summarises the arguments deployed in his speech, ‘La dottrina politica del Fascismo. Discorso pronunziato il 30 agosto 1925 a Perugia nell’Aula dei Notari al Palazzo dei Priori’ (Rome, Tipografia della Società Editrice ‘L’idea nazionale’, 1925). See also E Gentile, ‘Violenza e milizia nel fascismo alle origini del totalitarismo in Italia’ in E Gentile, F Lanchester and A Tarquini (eds), Alfredo Rocco: dalla crisi del parlamentarismo alla costruzione dello Stato nuovo (Rome, Carocci, 2010) 27; Gregor (n 21) 39. 23 Vassalli (n 17) 49; Simone (n 17) 181. 24 On the wider semantic complexity of this concept see P Costa, ‘Lo “Stato totalitario”: un campo semantico nella giuspubblicistica del fascismo’ (1999) 28 Quaderni fiorentini per la storia del pensiero giuridico moderno 61. 25 Mussolini said, in a letter to Rocco, that the Perugia speech was splendid and, indeed, of fundamental importance. The letter can be read in the apologia by N Mezzetti, Alfredo Rocco nella dottrina e nel diritto della Rivoluzione fascista (Roma, Casa editrice Pinciana, 1930) 93, which also contains Rocco’s speech of 1925, 243–69. 26 Published in English as A Rocco, ‘The Political Doctrine of Fascism’ (1926) 223 International Conciliation 393. 27 Paolo Ungari has spoken of an ‘unjustifiably famous speech’ (n 20) 111. Rocco used to repeat ideas and sentences in his writings and speeches. On 5 April 1924, he pronounced at the Augusteum of Rome the speech entitled ‘La formazione della coscienza nazionale dal liberalismo al fascismo’. According to Ungari the real political manifesto of Rocco was the speech delivered in Bari in 1926: ‘Principio di organizzazione come principio del Fascismo’ entitled ‘Genesi storica del fascismo’ in Rocco, La formazione dello Stato fascista (Milan, Giuffrè, 1938) III, 1117–128.

14  Luigi Lacchè The new state order, the national authoritarian state, was predicated upon a rejection of the principle of popular sovereignty. First, transformation was a synonym for the restoration of the political sovereignty of the state. According to Rocco, ‘the conquest of the State by Fascism had necessarily to lead to its transformation’.28 Furthermore: There are major differences between the liberal State and the Fascist State. The latter is the genuinely sovereign State because it dominates all the forces existing in the country. If its aims are higher, the tools used to obtain them must be more powerful than any other.29

Rocco radicalised the German doctrines on public liberties viewed as Reflexrechte, a simple grant given by the state. It was in fact in 1926 that the liberal jurist Francesco Ruffini replied to Rocco in his work on the rights of liberty, contesting the anti-liberal and anti-democratic Fascist ideology set out above.30 The Fascist state instead had to affirm its domination ‘over all the forces, coordinating, framing and orienting all of them to the higher ends of national life’.31 The Fascist vision of the state – according to the philosopher Giovanni Gentile (1875–1944) – should have been based on the Hegelian conception.32 For those who subscribed to contractualist doctrines the state was to be regarded as a means. In that sense, for democracy, liberalism and socialism the state was something ‘negative’.33 In contrast, Hegel had ‘discovered’ the concept of the state, and only the ‘­ethical’ state, as ‘positive’ substance, could harmonise authority and liberty. In the official report on the new Penal Code of 1930, the Minister of Justice, Rocco remarked that ‘the State’s right to punish cannot be conceived as an extension of the natural right of the individual but as an expression of the law of conservation and defence of the State’. Consequently, criminal justice was for Rocco a mirror of the ‘major principles laid down by the spiritual Revolution that created the new political regime’.34 It was time – Mussolini declared in 1925 – to make the Italian nation a Fascist nation.35 Celebrating the first five years of his journal Gerarchia, Mussolini wrote that Fascism was ‘changing the physical aspect of Italy and the moral attitudes of Italians’.36

28 Rocco, La trasformazione dello Stato (n 22) 15. 29 ibid. 30 According to Ruffini, Rocco had felt the need to enclose Fascist political-legal doctrine ‘within the stringent formulas of the science of law’: F Ruffini, Diritti di libertà, 2nd edn, with a Preface and notes by Piero Calamandrei (Florence, Sansoni, 1946 (1926)) 94. On Ruffini’s criticisms of Fascist doctrine see Ungari (n 20) 65–67; L Lacchè, ‘Il nome della “libertà”. Tre dimensioni nel secolo della Costituzione’ in F Bambi (ed), Un secolo per la Costituzione (1848–1948). Concetti e parole nello svolgersi del lessico costituzionale italiano (Florence, Accademia della Crusca, 2012); M Caravale, Una incerta idea. Stato di diritto e diritti di libertà nel pensiero italiano tra età liberale e fascismo (Bologna, il Mulino, 2016) 191–93; A Frangioni, Francesco Ruffini. Una biografia intellettuale (Bologna, il Mulino, 2018) 318 ff. 31 Rocco, La trasformazione dello Stato (n 22) 29. On the state viewed as dominant see PG Zunino, L’ideologia del fascismo. Miti, credenze e valori nella stabilizzazione del regime (Bologna, il Mulino, 1985) 186. 32 G Gentile, I fondamenti della filosofia del diritto, 3rd edn (Florence, Sansoni, 1961) 103 ff. 33 G Gentile, ‘Discorso inaugurale dell’Istituto Nazionale Fascista di Cultura’, delivered in the Campidoglio on 19 December 1925, in Fascismo e cultura (Milan, Treves, 1928) 50–52. See also G Gentile, ‘Che cosa è il fascismo’, conference held in Florence on 8 March 1925, in Che cosa è il fascismo. Discorsi e polemiche (Florence, Vallecchi, 1925) 33–37. 34 A Rocco, ‘Relazione al Progetto preliminare di un nuovo Codice di procedura penale’ in Lavori preparatori del codice penale e del codice di procedura penale, vol VII (Rome, Tip Le Mantellate, 1929) 7. 35 For a synthesis see S Cassese, Lo Stato fascista (Bologna, il Mulino, 2010) 25–32. 36 B Mussolini, ‘Viatico per il 1926’ (1926) 1 Gerarchia, then in Opera Omnia (Florence, La Fenice, 1957) XXII, 66–67.

‘Also and Above All a Regime of Justice’  15 Moreover, ‘Fascism is not only a lawmaker and a founder of institutions, but also an educator and promoter of spiritual life … Its banner is the fascio littorio [the Roman] symbol of unity, force and justice’.37 In 1926 a magistrate, and an ardent follower of Fascism, observed that Mussolini ‘is a worshipper of force’, but also a ‘man of justice … Once again, we will see together the sword and the scales, symbolising the intimate union between vis and iustitia’.38 In his collection of speeches and parliamentary reports, published in 1927, Rocco dedicated two chapters to the dyad justice and repression, closely linked in his view to constitutional reform (executive powers and the role of the head of government) and to social reform (the new legal regulation of collective labour relations and the structure of the corporate state).39 We can therefore say that justice and criminal law were called upon to work within the strategic space that unites repression and consensus. Justice is, in other words, the field in which the national state, vested with legitimacy, and Fascist violence, found different ways to combine repression and consensus-making.40

Fiat iustitia pereat mundus? While Rocco was consolidating the ‘new’ justice, the general prosecutor of the Supreme Court, Giovanni Appiani, inaugurated in Rome the judicial year 1926–27 with a celebration, in a Fascist idiom, of the innovations in the judicial sphere and of the new order. Appiani’s speech perfectly reflected the principal features of Fascist politico-legal ideology. In it he claimed that justice must defend the state, and that a judge’s task is therefore to apply State laws, interpreting their spirit. Hence the need not only to understand, but to consent, otherwise he cannot apply them easily in order to achieve their purposes. So the Italian judge must comply with the new legal order, the new sense of justice and the changing mentality of the Italian people according to the new constitution based on the principle of the absolute sovereignty of the State.41

Appiani was also gratified at having heard repeated ‘in an important speech by the current Minister, … my [observation] that the dictum “fiat iustitia et pereat mundus”, along with other such things, has to be relegated to the scrapheap of false rhetoric’.42 There is probably an echo in Appiani of what Rocco had said several times (as he was wont to do) in 1925, when talking about the reintroduction of the death penalty. In his speech delivered in Perugia the Minister referred to Immanuel Kant – ‘the most powerful and accomplished

37 B Mussolini, La dottrina del fascismo, with a history of the Fascist movement by G Volpe (Milan–Rome, Treves, 1932) 7. 38 S Pontano, Il Fascismo e la sua legislazione in rapporto all’etica, al diritto e alla giustizia (Catania, Tip Galati, 1926) 2. As is well known, the ‘fascio littorio’ (the Roman Lictor’s bundle) was a ‘symbol of unity, force and justice’: Fascismo (1932) in Enciclopedia italiana, available at: www.treccani.it/enciclopedia/fascismo_(Enciclopedia-Italiana). 39 This dyad was to enjoy a wide currency, eg, A De Marsico, Legislazione e giustizia nel fascismo (Milan, ­Mondadori, 1939) 112 ff. 40 See A Aquarone, ‘Violenza e consenso nel fascismo italiano’ (1979) 10(1) Storia contemporanea 145; M Canali, ‘Repressione e consenso nell’esperimento fascista’ in E Gentile (ed), La modernità totalitaria. Il fascismo italiano (Rome–Bari, Laterza, 2008) 58 ff. 41 G Appiani, ‘La giustizia nel nuovo Stato’, speech given at the opening ceremony of the judicial year of the Supreme Court, Rome, 5 January 1927, Biblioteca dell ‘Eloquenza’, 14 (published also in (1927) VI Gerarchia 17). 42 ibid 14.

16  Luigi Lacchè philosopher of liberalism’ – as the one who had invented the formula that ‘the individual who is the end cannot be treated as a means’.43 The Fascist revolution, Rocco argued, had overturned the terms of the relationship between individual and society, which had dominated the liberal-democratic and socialist doctrines. Instead, he declared, ‘We believe that the individual is the means and not the end, that society has its own ends, transcending the life of the individual’.44 Thus, in Appiani’s view, the Fascist state could no longer abide by the dictum fiat iustitia et pereat mundus, according to Kant’s interpretation: ‘And I have said, and I repeat, that justice is not an absolute concept, but is also a political phenomenon, a vital function of the State, whose orientation it must therefore follow’.45 The Total state thereby required a stronger politicisation or, fundamentally, the ‘socialisation’ of justice. Justice is first of all for society, not for the individuals of which society is composed. Yet Fascism did not absorb the individual into society and thereby nullify him: it subordinated him. We do not know if Appiani was aware of the history and the complex and ambiguous meaning of the dictum. One authority has attributed it to Gaius Cassius Longinus (87/86 – 42 BC), one of the assassins of Julius Caesar, or else to Lucius Calpurnius Piso Caesoninus (ca 100 – 43 BC), the father-in-law of Julius Caesar. However, the most likely source is the Diaries of the Venetian writer Marino Sanuto (the Younger,46 1466–1536). The entry in question concerns a murderous affair in Rome (in 1522) involving the noble families of Colonna and Della Valle. The Dutch pope Adrian VI (Adriaan Florenszoon Boyens Dedel)47 was asked to pardon Lelio Della Valle, thereby rewarding arrogance and violence. Yet according to Sanuto, the Pope answered that ‘absolutiones ab homicidio non dantur nisi magna ex causa, et nisi auditis qui se laesos praetendunt, et ideo volumus audire utramque partem, quia animus noster est ut fiat justitia et pereat mundus’ (‘absolution for homicide cannot be granted without good reason, and without hearing those who claim to be harmed, and so we will listen to both sides, because it is our intention to let justice be done though the world may end’). Justice came first. The motto became proverbial during the reign of Emperor Ferdinand I of Habsburg (1556–64). According to Johannes Manlius,48 Ferdinand – who was raised by Adriaan Dedel, the future Pope Adrian VI – was not slow to employ the maxim. Martin Luther referred to it as early as 1531. For Ferdinand and Luther, the basic meaning was that justice had to be done come what may, and the mighty brought low. Anyone seeking to bring about

43 In Rocco, ‘La dottrina politica del Fascismo’ (n 22) 7; also in A Rocco, ‘Atti parlamentari’, Senato del Regno, Legislatura XXVII, first session, c 17 December 1925, 4086. 44 Rocco, ‘Atti parlamentari’ (n 43) 4087. 45 Appiani, ‘La giustizia nel nuovo Stato’ (n 41) 13. 46 M Sanuto, I Diarii (F Stefani, G Berchet and N Barozzi (eds)) (Venice, a spese degi editori, 1892) XXXIII, 434–38. 47 RB Hein, ‘Gewissen’ bei Adrian von Utrecht (Hadrian VI), Erasmus von Rotterdam und Thomas More Ein Beitrag zur systematischen Analyse des Gewissensbegriffs in der katholischen nordeuropäischen Renaissance (Berlin, Lit, 2000) 175–261; E Nikitsch, ‘Römische netzwerke zu Beginn des 16. Jahrhunderts. Papst Hadrian VI (1522/23) und seine Klientel im Spiegel ihrer Grabdenkmäler’ (2012) 91(1) Quellen und Forschungen aus italienischen Archiven und Bibliotheken 277. 48 J Manlius, Locorum communium collectanea a Ioanne Manlio per multos annos, tum ex lectionibus D Philippi Melanchthonis, tum ex aliorum doctissimorum virorum relationibus excerpta … cum praefatione D Simonis Sulceri (Frankfurt am Main, per Martinum Lechler, impensis Simonis Huteri, 1568) 418: ‘Imperatoris Ferdinandi: FIEPM Fiat iusticia et pereat mundus’.

‘Also and Above All a Regime of Justice’  17 the rule of justice ought not to consider the interests of the powerful. The sentence was utilised also in the variant ‘Fiat iustitia et ruat caelum’,49 (‘let justice be done though the heavens may fall’). Later, at the very end of the eighteenth century, Immanuel Kant used Ferdinand’s motto to represent succinctly and in an instructive fashion his own vision of right and justice.50 Appiani branded this dictum as ‘false rhetoric’. In his view, Fascism needed its own idea of justice because justice is not an absolute, and every state possesses a ‘kind of justice corresponding to its specific features’.51 On that basis, as general prosecutor, in 1929 Appiani52 ventured to criticise the Supreme Court – and therefore, indirectly, Minister Rocco and the powerful President of Cassazione Mariano D’Amelio – on the grounds that it was not entirely ‘Fascist’.53 On 31 October 1932 – when celebrating ‘the first decade of Fascism’ – Mussolini visited Monza and gave a short speech, as he usually did, declaring: ‘Today the Italian people is convinced that the Fascist regime is a regime of force but also and above all a regime of justice’.54 Mussolini’s words were taken note of, and quoted again and again as political slogans serving to orient the masses, the party-state and the institutions. Word-as-action had great importance in the making of propaganda, and the Monza speech was recalled many times during the 1930s. Fascism was born as a ‘regime of force’, using a mixture of intimidation, outright violence and legal repression. On 20 July 1932 Rocco left the Ministry of Justice and in October Mussolini qualified Fascism as a ‘regime of justice’. In 1929 Mussolini had already defined Fascism as a regime resting essentially on a triad: authority, order and justice.55 In July 1931 the Fascist government brought into force an altogether unprecedented number of penal norms and provisions, defined by Mario Sbriccoli as a ‘monumental penal reform’.56 This reform encompassed the Penal Code and the Code of Penal Procedure, the coordination provisions, the transitional and implementation rules, the new law of public security, the new regulation for preventative institutions

49 I follow the reconstruction of D Liebs, ‘Das Rechtssprichwort. Fiat iustitia et pereat mundus’ (2015) 70(3) Juristenzeitung 138. 50 See below 20–21. 51 Appiani, ‘La giustizia nel nuovo Stato’ (n 41) 14. 52 G Appiani, L’annale 1928 della vita giudiziaria italiana. Discorso del procuratore generale della Cassazione del Regno, pronunziato nella inaugurazione dell’anno giudiziario della Corte di Cassazione del Regno. Roma, 5 gennaio 1929 (Rome, Tip G Pistolesi, 1929) 14 ff. 53 After his opening of the judicial year in 1928 Appiani was gracefully retired. See O Abbamonte, La politica invisibile. Corte di Cassazione e magistratura durante il fascismo (Milan, Giuffrè, 2003) 27 ff, 126 ff; C Guarnieri, ‘La Corte di Cassazione’ in L Violante (ed), Storia d’Italia. Annali 14. Legge Diritto Giustizia (Turin, Einaudi, 1997) 799–800; A Meniconi, ‘Magistrati e ordinamento giudiziario negli anni della dittatura’ in G Melis (ed), Lo Stato negli anni Trenta. Istituzioni e regimi fascisti in Europa (Bologna, il Mulino, 2008) 194–95; Meniconi, Storia della magistratura (n 13) 196–99; A Meniconi, ‘Inaugurazioni giudiziarie: tre discorsi ufficiali (ma non troppo’) (2014) 2 Le Carte e la Storia 104, 110–11. 54 B Mussolini, ‘Al popolo di Monza’ in Opera Omnia XXV 155. 55 B Mussolini, ‘Il regime fascista è autorità, ordine e giustizia’, speech given on 14 September at the party assembly (Rome, Libreria del littorio, 1929–30, a VII EF). This slogan was often written on public buildings, ‘case del Fascio’ etc. For an example see the monolith ‘Ordine, Autorità, Giustizia’ on the Casa del fascio in Como, 1936, an important work by the rationalist architect, Giuseppe Terragni. See G Ciucci, Giuseppe Terragni. Opera completa (Milan, Electa, 1996) 114; C Melograni, Architettura italiana sotto il fascismo. L’orgoglio della modestia contro la retorica monumentale 1926–1945 (Turin, Bollati Boringhieri, 2008) 169. 56 M Sbriccoli, ‘Il problema penale’ in M Sbriccoli, Storia del diritto penale e della giustizia. Scritti editi e inediti (1972–2007), vol I (Milan, Giuffrè, 2009) 690.

18  Luigi Lacchè and prisons, the new rules on the judicial record and, finally, various laws on contraventions and financial crimes. It was a substantial, even exhaustive ‘package’, and one that was destined to endure, outliving the Fascist period: Italy has known nothing to compare with it, either before or since. Fascism adopted first (1925–26) a more or less serviceable preventative and repressive policy directed at the regime’s political enemies. A system, as we have observed, based on police activities, preventative measures, the establishment of a Special Tribunal and the imposition of the death penalty for political crimes. This approach allowed the Fascist regime to give itself penal codes which were characterised by some patently authoritarian aspects, but which were not clearly ‘Fascist’. The new codes could consolidate the moderate social‑defence reform ideas that had gradually emerged during the Liberal era,57 following and crystallising some of them without radically changing the overall approach. For Fascism criminal justice was indubitably part of its ‘core business’. It was, as Rocco said on many different occasions, at the heart of the new regime’s constitutional architecture. Over the period from 1925 to 1930 the regime had tried and tested some of the tools designed to forestall or harshly repress political dissidence. In 1931 a new phase began. The most significant threats had been defeated or were under control; the regime could now give a definitive form to its ideas about justice. Now, at the beginning of the 1930s, Fascism could do as Mussolini proposed, and really change the moral attitudes of Italians. The time had come to build a more solid, homogeneous, ie, Fascist justice system,58 following an approach able to combine tradition and innovation, continuity and change. All this was based on a criminal law that was avowedly authoritarian and at variance with the liberal tradition. Criminal law had to protect the Stato forte, combating its enemies. Rights and guarantees were Reflexrechte, mere functions of the state. The punishment system was exacerbated, while the penal code contained and protected most of the values and cornerstones of the political ideology of Fascism (the personality of the state; the Fascist party as the engine of the state; race, family, religion, the corporative economy and so on). Moreover, the Penal Code effectively linked the basic social defence background to the authoritarian orientation of Fascist justice. At the same time, penal procedure accorded more value to the preliminary stage, excluding the support previously given to defence activities. The personal liberty of the accused was limited by a wider use of preventative detention.59 The principle of legality was formally maintained but reoriented according to the spirit of the new regime.

57 On this aspect see now P Garfinkel, Criminal Law in Liberal and Fascist Italy (Cambridge, Cambridge ­University Press, 2016) ch 7 and ‘Conclusion’. 58 See, eg, U Aloisi, ‘Le riforme fasciste nel campo del diritto e della procedura penale’ in Atti del I Congresso Giuridico Italiano, I: Le Relazioni (Roma, 1932) 257. 59 On the main changes see F Colao, Il delitto politico tra Ottocento e Novecento. Da ‘delitto fittizio’ a ‘nemico dello Stato’ (Milan, Giuffrè, 1986) 283 ff; M Sbriccoli, ‘La penalistica civile. Teorie e ideologie del diritto penale nell’Italia unita’ in M Sbriccoli, Storia del diritto penale e della giustizia. Scritti editi e inediti (1972–2007), vol I (Milan, ­Giuffrè, 2009) 583–90; G Neppi Modona and M Pelissero, ‘La politica criminale durante il fascismo’ in L Violante (ed), Storia d’Italia. Annali 12: La criminalità (Turin, Einaudi, 1997) 757–847; Sbriccoli, ‘Il problema penale’ (n 56) 687–95; M Sbriccoli ‘Codificazione civile e penale’ in M Sbriccoli, Storia del diritto penale e della giustizia. Scritti editi e inediti (1972–2007), vol II (Milan, Giuffrè, 2009) 985–91.

‘Also and Above All a Regime of Justice’  19 Legal science, with rare exceptions, endorsed this new programme. After all, Rocco was an eminent scholar. His brother, Arturo Rocco (1876–1942), with Vincenzo Manzini and Eduardo Massari (1874–1933), likewise played a decisive role in the work of c­ odification.60 After the fall of Fascism the disciples of these same jurists elaborated the so-called ‘brake theory,’ arguing that they had been able, thanks to the adoption of the technical-legal approach, to limit the ‘Fascist orientation’ and to safeguard the ‘liberal core’ of Italian liberal criminal doctrine.61 For this reason it was sufficient, they argued, to remove the Fascist patina in order to recover the liberal background and the real architecture of the codes. In 1932 Mussolini could say that Fascism was not only force, but ‘also and above all a regime of justice’. He referred to justice probably in the sense of a ‘popular regime’ oriented, according to the corporativist doctrine and the Carta del Lavoro (Charter of Labour), towards a more social and collective idea of justice. Yet he certainly also had in mind the new (criminal) justice system created in 1931. Was not Mussolini in this regard perhaps a sort of new Napoleon, dux and great lawmaker? In the fundamental concept of romanità62 was there not the idea of law as ‘fundamentum Regnorum’ and a remarkable capacity to think and dispense justice? Finally, justice, after the years of defence, was the way to exercise force legally, a pillar of the Fascist revolution. It is interesting to highlight the fact that during his visit to Monza, Mussolini granted to the city the seat of the tribunale, or district jurisdiction. The new Monza Palace of Justice, thanks to the reuse of an already existing building, was inaugurated as early as 1934. When Mussolini returned to Monza (6 October 1934), the great assembly hall had a solemn look to it, and a contemporary photograph still allows us to read two inscriptions. Of course, one is the usual liberal dogma ‘Law is equal for all’. However, it is of interest to note that there is a larger upper frieze reporting Mussolini’s words pronounced at Monza on 31 October 1932: ‘Today all the Italian people is convinced that the Fascist regime is a regime of force but also and above all a regime of justice’. Mussolini’s words had already become an ideological concept carved into a frieze placed high above a formal assembly hall.

60 M Sbriccoli, ‘Le mani nella pasta e gli occhi al cielo. La penalistica italiana negli anni del fascismo’ in M ­Sbriccoli, Storia del diritto penale e della giustizia. Scritti editi e inedita (1972–2007), vol II (Milan, Giuffrè, 2009) 1101–33. 61 eg, G Leone, ‘La scienza giuridica penale nell’ultimo ventennio’ (1945) 1(1) Archivio penale 28; T Delogu, ‘L’elemento politico nel codice penale’ (1946) 1(1) Archivio penale 161, 194–95. On these aspects note P Piasenza, ‘Tecnicismo giuridico e continuità dello Stato: il dibattito sulla riforma del codice penale e della legge di pubblica sicurezza’ (1979) 10(3) Politica del diritto 261; Sbriccoli, ‘Le mani nella pasta e gli occhi al cielo’ (n 60); Neppi Modona and Pelissero (n 59); G Neppi Modona, ‘Principio di legalità e giustizia penale nel periodo fascista’ (2007) 36 Quaderni fiorentini per la storia del pensiero giuridico moderno 983; L Lacchè, ‘“Sistemare il terreno e sgombrare le macerie”. Gli anni della “costituzione provvisoria”: alle origini del discorso sulla riforma della legislazione e del codice di procedura penale (1943–1947)’ in L Garlati (ed) L’inconscio inquisitorio. L’eredità del codice Rocco nella cultura processualpenalistica italiana (Milan, Giuffrè, 2010); S Skinner, ‘Fascist by Name, Fascist by Nature? The 1930 Italian Penal Code in Academic Commentary, 1928–46’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015); F Colao, Giustizia e politica. Il processo penale nell’Italia repubblicana (Milan, Giuffrè, 2013) 19–24. 62 On the different aspects of the myth of Rome, Roman antiquity and Roman law see S Falasca-Zamponi, Fascist Spectacle: The Aesthetics of Power in Mussolini’s Italy (Berkeley, CA, University of California Press, 1997); A Somma, ‘“Roma madre delle leggi”. L’uso politico del diritto romano’ (2002) 32(1) Materiali per una storia della cultura giuridica 153; Gentile, Fascismo di pietra (n 3); J Nelis, From Ancient to Modern: The Myth of Romanità during the Ventennio Fascista. The Written Imprint of Mussolini’s Cult of the ‘Third Rome’ (Brepols, Turnhout, 2011).

20  Luigi Lacchè Only a month after the inauguration of Monza’s courthouse, on 3 November 1934, the general prosecutor at the Court of Appeal of Milan, Eutimio Ranelletti,63 inaugurated the judicial year with a speech entitled ‘Fascism as a regime of justice’. Mussolini’s sentence had thus already become a political programme. As usual,64 Ranelletti celebrated more fascista Mussolini and the Minister of Justice Pietro De Francisci, a professor of Roman law, before running through the standard sequence of anti-democratic topics. He then introduced the subject that concerns us here, reverting to a rhetorical topos already evoked on 15 January 1934, by the general prosecutor at the Court of Appeal of Ancona, Antonio Marongiu. Ranelletti recalled Appiani’s quotation of 1927 as modified by Marongiu, but on this occasion with a significant alteration:65 Fiat justitia, pereat mundus! So warned the lofty wisdom of Rome, expressing the sentiment in a lapidary fashion. But the world has to live and progress; and justice is the fundamental, indefectible element of its progress. Therefore, we would like to replace the so to speak destructive motto with a maxim of life: Fiat justitia ne pereat mundus! Let Justice be done lest the world perish! This is a dictum that we would wish to see carved in bronze on the facade of the new Palace of Justice that Milan is building, [and] with a refined artistic sensibility.66

Indeed, the general prosecutor would wish ‘the dictum to be carved on the facade of each and every Palace of Justice, as a warning to both judges and citizens’.67 Without mentioning Pope Adrian VI and Ferdinand I, Kant used, in his 1795 Perpetual Peace, the concept contained in the motto devised in the sixteenth century: ‘Let justice rule on earth, although all the rogues in the world should be brought low’.68 As Kant wrote in

63 Eutimio Ranelletti was the brother of the more famous Oreste, among the most important scholars of public law. After the First World War he was a member of the Nationalist movement. General prosecutor at Brescia and then at Milan, he wrote on corporative law (diritto corporativo) and the new magistrature of labour. See A Baravelli and G Focardi, ‘La Corte d’appello di Brescia durante la dittatura fascista’ (2009) 5 Archivio storico della Resistenza bresciana 125, 136–37; Meniconi, Storia della magistratura (n 13) 207; A Santangelo Cordani, ‘La retorica dei procuratori generali all’inaugurazione degli anni giudiziari nella Milano fascista’ in G Cazzetta (ed), Retoriche dei giuristi e costruzione dell’identità nazionale (Bologna, il Mulino, 2013) 311 ff. 64 On the specific features of the inaugural speeches during Fascism see C Vetter, ‘I discorsi dei Procuratori Generali durante il fascismo’ (1980) 2 Quale Storia 4; C Sarzotti, Cultura giuridica e culture della pena. I discorsi inaugurali dell’anno giudiziario dei Procuratori Generali (Turin, L’Harmattan, 2006) 7 ff; and now above all Meniconi, Storia della magistratura (n 13) 185 ff and Meniconi, ‘Inaugurazioni giudiziarie’ (n 53). 65 A Marongiu, ‘Giustizia Fascista. La Giustizia nella Corte di Appello di Ancona nel primo anno del secondo decennale della Marcia su Roma’, speech given in the General Assembly on 15 January 1934, for the inauguration of the judicial year XII EF (ie year XII of the Fascist era) (Ancona, Tip Dorica, 1934) 11. 66 E Ranelletti, ‘Il Fascismo regime di giustizia. La Magistratura ed il PNF – La Giustizia nella Corte d’Appello di Milano’, speech given in the General Assembly on 3 November 1934, for the inauguration of the judicial year XIII EF, 14. 67 ibid, 17. See also Erminio Calcagni, general advocate at the Court of Appeal of Bari, who in 1935 quoted Mussolini’s sentence on Fascism as a ‘regime of justice’ (‘Diritto, Giudici, Giustizia’, speech given in the General Assembly on 29 October 1935, for the inauguration of the judicial year XIV EF (Trani, Tipografia Ed Paganelli, 1935) 44. 68 I Kant, Perpetual Peace. A Philosophical Essay (London, Allen, 1917) 179. I wish to thank my colleague Carlo Sabbatini for some information on the presence of the motto ‘Fiat iustitia et pereat mundus’ in German philosophy from Kant to Hegel. On the motto in Kant see G Funke, ‘Fiat iustitia, ne pereat mundus. Vernunftrecht der Freiheit, Vernunftstaat der Freiheit, Vernunftzweck der Freiheit im kritischen Idealismus’ (1979) 7 Abhandlungen der Geistes und Sozialwissenschaftlichen Klasse, Akademie der Wissenschaften und der Literatur (Mainz, Franz Steiner Verlag, 1979); R Zaczyk, ‘“Fiat iustitia, pereat mundus” – Zu Kants Übersetzung der Sentenz’ in M Wallerath (ed), Fiat iustitia. Recht als Aufgabe der Vernunft. Festschrift für Peter Krause zum 70. Geburtstag (Berlin, Duncker & Humblot, 2006).

‘Also and Above All a Regime of Justice’  21 the first Appendix to Perpetual Peace, ‘This saying has become proverbial, and although it savours a little of boastfulness, it is true’.69 For Kant the correct meaning of this proposition is that it must set out from the pure concept of the duty of right, from the ‘ought’ whose principle is given a priori through pure reason. This is the law, whatever the material consequences may be. The world will certainly not perish by any means, because the number of wicked people in it is becoming fewer. The morally bad has one peculiarity, inseparable from its nature; in its purposes, especially in relation to other evil influences, it is in contradiction with itself, and counteracts its own natural effect, and thus makes room for the moral principle of good, although advance in this direction may be slow.70

For Kant, there is no quarrel, objectively and in theory, between morals and politics. Disagreement in principle and subjectively exists and may always survive, but it serves as a whetstone to virtue. For Kant, the politician does not have to resort to the criterion of happiness, but must start from the pure concept of legal obligation regardless of the physical consequences that can derive from it. It is intriguing to note that the Milan general prosecutor, Eutimio Ranelletti, probably following Rocco’s interpretation and Appiani’s speech, suggested replacing the ‘destructive’ Fiat iustitia, pereat mundus motto with a maxim of life: ‘Let Justice be done lest the world perish’ (Fiat iustitia ne pereat mundus). Some have insisted that this variant is due to Hegel. I did not find this precise wording in Hegel, but he does discuss the comments of Kant and Fichte regarding the stoical motto. Johann Gottlieb Fichte in fact cites the motto in paragraph 32, Duties of the state official, of his ‘The System of Ethics’ (1798): ‘The law exists because it must exist, it is an absolute and it has to be implemented even though no one derives any benefit from its implementation (fiat iustitia, et pereat mundus)’.71 Hegel then recalled the motto in his article, ‘The Difference Between Fichte’s and Schelling’s System of Philosophy’ (1801): The absolute substantiality of these points makes the basis for an atomistic system of practical philosophy in which, as in the atomistic system of nature, an intellect alien to the atom becomes law in the practical sphere under the name of Right. This Right is a concept of totality, which must confront every action as its opposite, for every action is a determined one; a concept that is to determine every action and thus kill the living element of true identity in it. Fiat justitia, pereat mundus is the law, and not even in the sense that Kant gave it: ‘let right be done though all the scoundrels in the world perish’. But rather in this sense: right must be done, even though for its sake, all trust, all joy and love, all the potencies of a genuinely ethical identity, must be eradicated root and branch, as we say.72 69 Kant, Perpetual Peace (n 68) 179. 70 ibid 180. Kant’s concept of criminal law as ‘categorical imperative’ is based on the same logic of the motto ‘Fiat iustitia et pereat mundus’. See I Kant, Scritti politici e di filosofia del diritto (Turin, Utet, 1965) 520–23. For an anticipation of this vision see I Kant, Lezioni sul diritto naturale (Naturrecht Feyerabend) (G Sadun Bordoni and N Hinske (eds)) (Milan, Bompiani, 2016) 101. For a wide discussion see MA Cattaneo, Dignità umana e pena nella filosofia di Kant (Milan, Giuffrè, 1981); D Tafani, ‘Kant e il diritto di punire’ (2000) 29 Quaderni fiorentini per la storia del pensiero giuridico moderno 55. 71 JG Fichte, Sistema di etica (E Peroli (ed)) (Milan, Bompiani, 2008) 813. See also JG Fichte, The System of Ethics (D Breazeale and G Zöller (eds)) (Cambridge, Cambridge University Press, 2005) 338; P Grüneberg, ‘“Fiat iustitia, pereat mundus” – Hegels Diskussion Fichtescher Rechtsphilosophie in methodenkritischer Perspektive’ (2009) 1 Hegel-Jahrbuch 144. 72 See: www.marxists.org/reference/archive/hegel/works/fs/ch02.htm#n67.

22  Luigi Lacchè Hegel also subsequently returned to the motto in his ‘Outlines of the Philosophy of Right’ (1820), in the section entitled ‘Good and Conscience’: Hence, well-being is not a good, if separated from right; nor is right a good, if separated from well-being. Fiat justitia ought not to have pereat mundus as a consequence. The good, carrying a necessity to be actualized by the particular will, and comprising the vital essence of such a will, has absolute right over the mere abstract right of property and the particular ends of well-being. If either of these elements is distinguished from the good, it has validity only in so far as it accords with the good and subordinates itself to it.73

Rocco’s criticism of Kantian values and the Kantian conception of liberty was probably a landmark for Fascist criminal law discourse.74 It was typical of Fascism to try to build its own ideology by fusing neo-Hegelian conceptions of the ‘Spirit’ with a specific philosophy of history. According to this vision the state was not simply a means to protect rights (and so liberty). Giovanni Gentile deepened this idea. In the second volume of his Sistema di logica come teoria del conoscere (1923), concerning ethics (chapter eight), the philosopher criticised the abstract concept of man: But no less significant is the lightness of being, nurtured though it may be by a generous sentiment, of the stoic: fiat iustitia et pereat mundus: because this too is an abstract justice, it cannot concern the subject, the individual who wants justice in the world, because the world is his world, himself. Neither pride, nor humility. Neither the individual outlaw, because he is the law; nor the law which is annihilation of the individual.75

Fiat iustitia ne pereat mundus appeared to be the ‘Vernunftzweck der Freiheit’76 (or ‘purpose of freedom’), a key element in the ‘philosophical’ foundation of Fascist ideology. Within this framework Rocco gave a specific and practical contribution to an ‘ethical state’ pattern founded upon justice. All this had to do with the project of forging the ‘new man’ of Fascism, according to what has been interpreted as its palingenetic mythic core.77

Representing Justice: The Role of Architecture and the Visual Arts In 1934, when Eutimio Ranelletti quoted the maxim under discussion, the new Palace of Justice was under construction in Milan.78 Although the competition to present a project for the new courthouse (1929) came to nothing, on 3 October 1931, the podestà (mayor) Marcello Visconti di Modrone himself took the step of directly commissioning Marcello Piacentini (1881–1960),79 who was increasingly prominent among the Italian architects and

73 GWF Hegel, Philosophy of Right (SW Dyde (trans)) (Kitchener, Batoche Books Limited, 2001) 111. 74 See Skinner, ‘Violence in Fascist Criminal Law Discourse’ (n 6). 75 G Gentile, Sistema di logica come teoria del conoscere, vol 2, 4th edn (Florence, Sansoni, 1959) 332. 76 See Funke (n 68) 28–32. 77 R Griffin, The Nature of Fascism (London, Routledge, 1996) 26–27, 35, 39. 78 On Milan’s development during Fascism see LM Maulsby, Fascism, Architecture and the Claiming of Modern Milan, 1922–1943 (Toronto, University of Toronto Press, 2014). 79 S Galasso, Il Palazzo di Giustizia di Milano: una Galleria d’Arte (Milan, Neograf, 2014) 11. However, according to Maulsby (n 78) Piacentini had already completed initial sketches for the building by the end of 1930.

‘Also and Above All a Regime of Justice’  23 town planners of the Fascist period.80 Piacentini’s main collaborator was Ernesto Rapisardi, but he was also assisted by a committee composed of magistrates and lawyers who tendered helpful advice about their concrete needs. On 26 October 1932 Mussolini visited the construction site of the new building consecrated to justice. A few days later the Duce promised Monza a new tribunal. In Milan Mussolini delivered one of a series of important speeches celebrating the tenth anniversary of the seizure of power. By now, he said, ‘We can [afford to] neglect those few enemies of ours who still remain’. Mussolini did not exclude an act of generosity toward dissidents after the commemorative ceremonies. However, he went on, ‘we will not dismantle our defence apparatus [against dissidents] until such time as, especially beyond our frontiers, they respect and obey what is now an irrevocable fait accompli [ie that the Fascist regime was in power]’.81 It is in the context of Fascist ideology and the totalitarian experiment that we should reflect on the special role allotted by the regime to architecture and the fine arts. In the first half of the twentieth century perhaps no state invested as much politically in public architecture as Fascist Italy did. This was in part a way to revive and sustain the economy after the great crash of 1929. Furthermore, such investments played a key role in the sacralisation of politics. Aesthetics and politics converged on the plane of ideas. Architecture in particular was called upon to represent concretely the new concept of order. Architecture during Fascism eloquently illustrated the aporias of Fascist modernism, given all its complex and controversial features.82 Architecture during Fascism, both the rationalist mode of Pagano, Terragni or Libera, and the ‘monumentalist’ (or pompier) approach of Piacentini and others, was a legitimate offspring of the regime. Of course, the results differed widely, as regards the achievement or otherwise of a ‘new’ or ‘good’ form of architecture. In general architecture played a decisive role ‘in the overall picture of the cultural policy and propaganda of the regime’.83 Monumental architecture, according to Mario Sironi, had to express above all ‘an appearance and visible sensation of its faith, power, extent and strength’.84 From the beginning of the 1930s there was a wide-ranging debate about architecture as a ‘State art’ able to bolster and illustrate the achievements of Fascism.85 Within this general framework different elements, visions and concrete works could cohabit. I have already said that justice was of paramount importance in institutionalising the new political regime and in giving a direction to the new state. The architecture of justice also played a major role in representing Fascist ideologies. This aspect – the relationships between the architecture of justice and Fascist strategies and policies – has been unduly neglected.

80 According to C de Seta ‘Piacentini was an extraordinary organizer of the architectural and urban policy promoted by the Fascist regime but that does not alter the fact that he was a thoroughly mediocre architect’: ‘Premessa alla terza edizione’ in C de Seta (ed), Giuseppe Pagano. Architettura e città durante il fascismo (Milan, Jaca Book, 2008) XII–XIII. 81 B Mussolini, ‘Al popolo di Milano’ in Opera Omnia XXV 148. 82 See especially R Griffin, Modernism and Fascism. The Sense of a Beginning under Mussolini and Hitler (New York, Palgrave Macmillan, 2007). 83 C De Seta, ‘Cultura e architettura in Italia tra le due guerre: continuità e discontinuità’ in S Danesi and L Patetta (eds), Il razionalismo e l’architettura in Italia durante il Fascismo (Venice, Edizioni La Biennale di Venezia, 1976) 8. 84 M Sironi, ‘Monumentalità’ (1934) 11 Rivista Illustrata del ‘Popolo d’Italia, quoted by E Gentile, ‘Fascism as Political Religion’ (1990) 25 Journal of Contemporary History 246. 85 G Ciucci, Gli architetti e il fascismo. Architettura e città 1922–1944 (Turin, Einaudi, 1989) 108 ff.

24  Luigi Lacchè And yet it is an important field, and one that allows us to consider together two of the pillars of the Fascist experiment: the criminal law system, and an ‘aestheticised’ ­ideology86 founded upon force and justice. The new Palace of Justice in Milan – inaugurated in 1939 – is the symbol of these close links, which cannot fail to call to mind the figure of Marcello Piacentini.87 Son of Pio Piacentini (1846–1928) – one of the architects active in the new Italian capital of Italy, Rome – he embarked upon his professional career very early, under the Liberal state, and during the Fascist era he became the dominant figure in Italian architecture. In 1925 his studio was already involved in about 60 projects and construction sites. He was a professor of town planning at the University of Rome from 1929 onwards and his name is linked either directly or indirectly to a huge number of city planning projects and to public and private buildings all over Italy. When we think of Fascist architecture and town planning what springs to mind first is the ‘wide flow of petrified ideology’88 which marked Rome, ‘capital of Fascism’, with ambitious and grandiose projects culminating in the University City of Rome,89 Foro Mussolini and finally the new district (known as E42) that was supposed to have hosted the Universal Exhibition in 1942.90 One could also mention a number of new towns (città littorie). It is though a lesser known fact that Marcello Piacentini began to plan palaces of justice before the First World War. His project for Messina,91 for example, was approved in 1912 but the outbreak of war led to its suspension. Work recommenced in 1923, with support from the architect Ernesto Rapisardi, but in the meantime Piacentini had rethought his architectural approach. He revised the original Neo-Renaissance style that had been in vogue during the reign of King Umberto I, espousing instead a ‘modern Renaissance’, with echoes of German neo-classical models adapted to suit the Sicilian context. Travels in Europe (especially Germany) and North America allowed Piacentini to broaden and refine his vision.92 It has been observed that the final result (the Palace, composed of three parts, was inaugurated in 1928) may be said to resemble Berlin’s Brandenburg Gate. The building is surmounted

86 On the aesthetic politics of Fascism see Falasca-Zamponi (n 62). 87 P Nicoloso, ‘Piacentini, Marcello’ in V De Grazia and S Luzzatto (eds), Dizionario del fascismo II. L–Z (Turin, Einaudi, 2005) 365. On the central role of Piacentini see especially M Lupano, Marcello Piacentini (Rome–Bari, Laterza, 1991); P Nicoloso, Gli architetti di Mussolini. Scuole e sindacato, architetti e massoni, professori e politici negli anni del regime (Milan, Angeli, 1999); P Nicoloso, Mussolini architetto. Propaganda e paesaggio urbano nell’Italia fascista (Turin, Einaudi, 2008) 203 ff and passim; S Scarrocchia, Albert Speer e Marcello Piacentini: l’architettura del totalitarismo negli anni Trenta (Milan, Skira, 2013). 88 L Di Majo and I Insolera, L’Eur e Roma dagli anni Trenta al Duemila (Rome-Bari, Laterza, 1986); T Gregory and A Tartaro (eds), E42. Utopia e scenario del regime. I Ideologia e programma dell’Olimpiade delle Civiltà (Padua, Marsilio, 1987); Nicoloso, Mussolini architetto (n 87); Gentile, Fascismo di pietra (n 3) VI. 89 For a synthesis see V Vidotto, ‘La Roma di Mussolini’ in E Gentile (ed), La modernità totalitaria (Rome–Bari, Laterza, 2008); see also Ciucci, Gli architetti e il fascismo (n 85) 131–36. 90 See E Gentile, Il culto del littorio. La sacralizzazione della politica nell’Italia fascista (Rome–Bari, Laterza, 1993) 255 ff. 91 M Piacentini, ‘Palazzo di Giustizia di Messina’ (1929) 7 Architettura e arti decorative 8; E Calandra, Palazzo di Giustizia di Messina. Ottobre 1928 (Messina, Ed Tip La Sicilia, 1928); F Paolino (ed), Dal monumentale al ­razionale: due opere di Marcello Piacentini a Messina e Reggio Calabria (Reggio Calabria, Laruffa, 1984). See also Lupano (n 87) 71; AS De Rose, Marcello Piacentini: opere 1903–1926 (Modena, Franco Cosimo Panini, 1995). 92 C Beese, ‘Grand Tour in Reverse: Marcello Piacentini’s Tour of Germany in 1930 and 1931’ (2016) 4 Architectural Histories 16, available at: doi.org/10.5334/ah.197; C Beese, Marcello Piacentini. Moderner Städtebau in Italien (Berlin, Reimer Verlag, 2016).

‘Also and Above All a Regime of Justice’  25 by a bronze quadriga led by the Goddess Minerva (the work of the sculptor Enrico Drei) and reflects above all ‘the tradition of Peter Behrens’s German Embassy in St Petersburg (1911)’93 with a facade dominated by imposing columns embodying the more archaic classicism of the Sicilian Doric style. Images of Sicilian jurists, allegories about Lex and Ius, many decorations and the furniture designed by Piacentini give the idea of a palace of justice still suspended between various nineteenth-century styles and a tentative embrace of modernity. Moreover, before Messina, Marcello Piacentini had worked with the engineer Giuseppe Quaroni on the new courthouse at Bergamo. The original project was then modified in collaboration with other architects and the new building (inugurated in 1927) shows the influence on Piacentini of the Vienna Secession.94 During the 1920s Fascism had not yet attained its own specific vision of architecture and the fine arts, although it was working towards this end. The modernity of Futurism and a neo-classicism linked to the past and particularly to Roman myth were the main ingredients. During the 1930s Fascism sought to design its ‘look’ in terms of political and ideological communication. This was the decade of urban planning, of the wholesale destruction of ancient streets and sites, of a ‘Fascist style’ (stile littorio) adjusted to suit different categories of building. Fascism also devised a policy to design and build new palaces of justice and courthouses. Marcello Piacentini was likewise a protagonist in this specific branch of architecture, alone or with his usual collaborators such as, for example, the brothers Ernesto and Gaetano Rapisardi.95 A partial inventory of projects launched by Fascism during the 1930s shows the overriding concern of the regime to be seen as ‘a regime of justice’. Most of these new palaces of justice had been planned under Fascism but were in fact completed and inaugurated after the end of the Second World War. We can name, for example, the Palaces of Justice of Cagliari (1929–38, architect Dettori and others); Pisa (1935–58, architect Gaetano Rapisardi); Catania (1937–53, architect Francesco Fichera); Forlì (1937–69, architect Francesco Leoni);96 Bolzano (architect Paolo Rossi de Paoli); Palermo (1938–57, architects Ernesto and Gaetano Rapisardi);97 and Ascoli Piceno (1939–54). During the Liberal era there had not been an architectural canon followed by Ministers of Justice, the bureaucracy and the architects. For example, the most important achievement of that period was certainly the Supreme Court (Corte di Cassazione) in Rome (1889–1911), an imposing edifice of which the planning history bears witness to a great diversity of styles and solutions. As a result, the Italian Supreme Court met with the same fate as other European or American courthouses erected in the second half of the nineteenth century. In other words, paradoxically, the ‘national style’ during the age of triumphant nationalism was eclecticism: ‘Italy’s real peculiarity was to exacerbate the reference to historical figures rather than focus only on abstract concepts such as law and justice’.98

93 Beese, Marcello Piacentini (n 92) 2. 94 The Tribunal is decorated with two statues on the facade (‘Law’ and ‘Justice’) by the sculptor Giuseppe Siccardi and a large fresco by Giovanni Battista Galizzi in the Assize courtroom. 95 Nicoloso, Mussolini architetto (n 87) 261. 96 Mussolini followed closely the planning and the construction of the Palace of Justice in ‘his’ Forlì: Nicoloso, Mussolini architetto (n 87) 149–50. 97 ibid 13, 14, 261. 98 S Gialdroni, ‘Justice Petrified. The Seat of the Italian Supreme Court between Law, Architecture and Iconography’ in S Huygebaert, A Condello, S Marusek and M Antaki, Sensing the Nation’s Law: Historical Inquiries into the Aesthetics of Democratic Legitimacy (Berlin, Springer, 2017).

26  Luigi Lacchè The Fascist era had only a few years in which to design a canon serving to shape both courthouses and a basic idea of justice. The outcome was in the end fragmentary and partial, being interrupted by the war and the fall of the regime, but we can nevertheless discern some of its common features. Fascism, by contrast with certain other political regimes, did not impose a complete uniformity, but Marcello Piacentini and his colleagues proposed, under Mussolini’s control, some recurrent patterns. Rationalism was already rooted in Italy and Fascist architecture combined it with an increasingly monumental neo-classicism.99 In 1953 Marcello Piacentini, despite his admiration for the Palais de Justice in Brussels, described the period between 1860 and 1880 as ‘narrow’ and ‘desperate’, a kind of Greco-Roman catastrophe necessary to finally ‘liberate’ architecture in order to let it ascend towards the clear skies of modernity.100

In March 1931, Pier Maria Bardi, who supported – from a Fascist point of view – rationalism as the new style for Italy, presented a photographic collage of a ‘Panel of Horrors’ showing, among other things, a number of works of Marcello Piacentini.101 Yet the latter did in the end prevail, winning the political challenge to settle upon a new architectural style embodying the art of the Fascist state. Piacentini triumphed over the rationalist movement and its celebration of ‘the pride of modesty’,102 suitable perhaps for ‘functional’ buildings but not for representative architecture.103 Piacentini for his part proposed an architectural style more in line with general expectations and especially with those of the Duce. ‘Littorio style’ was sufficiently original to enable one to distinguish at a glance the public buildings built by the regime, without fruitless displays of intellectualism but manifesting a significant connection with the glorious Roman imperial heritage.104 From 1936 monumental architecture according to Piacentini’s style came to represent the Stimmung, or spirit, of the regime.105 All the palaces of justice designed during Fascism are characterised by huge pillars forming a pronaos reached by stairs. This pattern was employed at the beginning of the 1930s by Piacentini in the central building (seat of the Rectorate) of the La Sapienza University City. Piacentini’s original notion was to build a central tower to house a library, but this never got beyond the planning stage.106 In his travels in Germany, Piacentini had seen the works of Wilhelm Kreis, and notably the idea of an entrance structured by pillars without bases

99 See G Ciucci, ‘Stili estetici nel regime fascista’ in E Gentile (ed), La modernità totalitaria. Il fascismo italiano (Rome–Bari, Laterza, 2008). 100 M Piacentini, Considerazioni sull’Urbanistica e l’Architettura di Roma e altrove (Rome, Ars Nova, 1953) 124 quoted by Gialdroni, ‘Justice Petrified’ (n 98). 101 F Tentori, Pietro Maria Bardi: primo attore del razionalismo (Torino, Testo & Immagine, 2002). 102 See on this phrase Melograni (n 55). On the debate and controversies during Fascism see L Patetta, L’architettura in Italia 1919–1943. Le polemiche (Milan, Clup, 1972); and M Sabatino, Pride in Modesty: Modernist Architecture and the Vernacular Tradition in Italy (Toronto, University of Toronto Press, 2010). 103 M Piacentini, ‘La Difesa dell’architettura italiana’ (1931) Il Giornale d’Italia, 2 May; M Piacentini, ‘Dove è irragionevole l’architettura razionale’ (1931) 11 Dedalo 527. 104 Melograni (n 55) 88. Note Beese, ‘Grand Tour in Reverse’ (n 92) 15: ‘The new perspective probably resulted from an increasing power struggle with the rationalists who claimed the status of official state architects and blamed Piacentini for pursuing an eclectic style unable to represent the modernity of fascism. Influenced by the prospect of public commissions like the Museo Magna Grecia in Reggio Calabria, the Palace of Justice in Milan or the University Campus in Rome, Piacentini sought to develop a representative architectural language that was modern, classical and Italian at the same time’. 105 de Seta, ‘Premessa alla terza edizione’ (n 80) XI. 106 Melograni (n 55) 98–108.

‘Also and Above All a Regime of Justice’  27 and capitals within the GeSoLei exhibition in Düsseldorf (1925).107 From 1930 to 1931 Piacentini started working on plans for the Milan Palace of Justice, and there he featured a vertical main entrance. In Milan the Roman architect adopted a rationalist solution: great openings without a pronaos. He put at the top (the frieze) of the main entrance the word IUSTITIA and Latin sentences on the façade’s two sides. Into the Palace of Justice Piacentini inserted the tower (on the Saint Barnaba street side), which was no longer to be built within La Sapienza University in Rome. This kind of structure seeks to convey an imposing sense of solemnity, grandeur, force and consistency. As we have seen, Fascist policy on criminal justice was dominated – within the idea of the Stato forte – by the metaphors of power, massiveness and monumentality (according to Rocco’s reform of 1930–31). Architecture now served to realise and embody this policy. Architectural forms performed Fascist justice. Like other totalitarian regimes, and certainly the Nazi regime, Fascist architecture as massiveness108 incorporated an aesthetic dimension of justice. Milan’s Palace of Justice had perforce to be the loftiest expression of this orientation. The interiors are equally imposing, and the use of precious marbles, decoration, statues and bas-reliefs conveys the notion that justice is something of paramount importance. We could say that these courthouses render a symbolic and abstract sense of justice. The language used by Rocco when he was Minister of Justice (Fascist justice building, monumental work, legal and constitutional architecture) could now find a concrete medium of communication in which to affirm that Fascism was ‘also and above all a regime of justice’. Among the courthouses that were completed during Fascism, the Palace of Justice in Milan is certainly the symbolic equivalent of the Supreme Court in Rome. The latter was intended to serve as a rhetorical representation of the rule of law, in line with the stipulations of Minister of Justice, Giuseppe Zanardelli (1826–1903), whose name was linked to the new penal code unifying the laws of the previously separate jurisdictions and the Criminal Supreme Courts, brought together in a single, national courthouse located in Rome. The Palace of Justice in Milan is the most pertinent expression of ‘justice petrified’ under Fascism. Its material form gives pause for thought. As a single building, inaugurated in 1939 but without fuss, it is one of the greatest of the regime’s achievements and can be compared only with the Supreme Court building itself, the so-called Palazzaccio. But Milan’s Palace of Justice is one-and-a-half times larger than the Roman Supreme Court. It can even compete with the Farnesina building in Rome, originally conceived as the seat of the Fascist national party and since 1940 the headquarters of the Ministry of Foreign Affairs. The Milan courthouse has a footprint equivalent to that of the whole cathedral square in Milan or to the Royal palace of Caserta. A contemporary commentator, Raffaele Calzini, affirmed that the most monumental and solemn architecture of the Fascist Ventennio, the most meaningful not only for its grandeur and scale, but also for the stylistic success and for the unitary beauty of the whole set-up, is the Palace of Justice of Marcello Piacentini.109

107 Beese, ‘Grand Tour in Reverse’ (n 92) 12. 108 Following some suggestions in E Canetti, Crowds and Power (London, Phoenix, 2000), see M Abensour, De la compacité (Paris, Sens & Tonka, 1997). 109 R Calzini in M Piacentini, Il Palazzo di Giustizia di Milano. Arch. Marcello Piacentini (Milan, Garzanti, 1942) 1. See Galasso (n 79).

28  Luigi Lacchè It is a little known fact that the Milan Palace of Justice – a mixture of modernism and monumental neoclassicism – is probably one of the richest edifices in terms of images and symbols of justice to have been built during the twentieth century, and not only in Italy. Fascism and the institutions of Milan invested a great deal in this building, both financially and symbolically. Our image nowadays of the Palace of Justice, tired and old as it seems, the seat of a republican justice in crisis, does not appear to be capable of ‘speaking’ to us about all this. To gain a sense of what it may once have meant, we need to get back to the original project and to recover the original semantics of this ‘justice petrified’. Mussolini followed very closely, and often issued detailed orders regarding the architectural and urbanistic projects of Fascist Italy, which involved huge construction sites. He paid visits to particular projects and engaged architects and technicians in lengthy discussions. In 1942, during the war, Piacentini wrote to Prefect Nicola De Cesare, secretary of the Duce: This is a real modern temple, objectifying the myths of Fascist belief. The idea of force, expressed by the huge scale, and the idea of universality, revealed through an eternal classicism, are readily comprehensible and reach the consciousness of the masses. The architect would ‘ardently’ wish to hand the book [about the project] to the Duce in person, but he does not dare distract him ‘from the far more serious concerns of the present time’.110

The art critic, Raffaele Calzini noted in the same publication that Piacentini wished to present in person to Mussolini, that ‘The lack, in the facade, of the symbolic and pompous statues that adorn other palaces of justice, as in Rome and Brussels, serves to banish the notion that the administration of justice may be [entrusted to] a vain and rhetorical ­academy’.111 On the contrary: Piacentini sought to give this powerful organism, healthy and vital, an ideal meaning, one that could be immediately understood. Creating a building that inspires a meditative contemplation, a balance of wisdom and reverence, a sense of justice and of faith, is to fulfil a function.112

In the original project Piacentini had thought to place a great statue of Justice above the inscription IUSTITIA but this plan was never realised. Beyond any aesthetic judgement we may choose to make about the whole project, it cannot be denied that the Palace of Justice is an unicum of architecture, design and sophisticated technology featuring great staircases, huge corridors, halls, offices, and more than one thousand rooms in total. If in 1936 Le Corbusier argued that architecture should exclude painting and sculpture, Piacentini, on the contrary, maintained that architecture should integrate them. The Fascist metaphor of ‘building’ combined architecture, painting and scuplture and developed a particular approach of its own in the use of fresco, as practised by Mario Sironi.113 For these reasons, The Palace of Justice has been enriched by works of art so as to become a Museum of Modern Art; and it is one more proof of the existence of a rich, worthy art of Fascism, abreast of the times and 110 Nicoloso, Mussolini architetto (n 87) 191. 111 Calzini (n 109) 2. 112 ibid 4. 113 E Camesasca, Mario Sironi. Scritti editi e inediti (Milan, Feltrinelli, 1980); F Benzi, ‘Sironi e l’architettura’ in A Sironi (ed), Sironi. Il mito dell’architettura, exhibition catalogue (Milan, Mazzotta, 1990) 79–84; A Sironi (ed) Sironi. La grande decorazione (Milan, Mondadori, 2004); M Cioli, Il fascismo e la ‘sua’ arte. Dottrina e istituzioni tra futurismo e Novecento (Florence, Olschki, 2011) 204–05.

‘Also and Above All a Regime of Justice’  29 willing to abide by moral and political guidelines related to tradition and sowing the seeds of the future.114

The new Milan courthouse was thus also intended to be a sort of museum of modern art seeking to celebrate Fascism as a ‘regime of justice’ by displaying the relationships between Justice and the new political ideology. It is based on a rich iconography of the old and the new Justice, seen through its relationship with both tradition and modernity.115 There are 140 works of art of all kinds, marble and bronze sculptures, bas-reliefs, high-reliefs, frescoes and mosaics, as well as inscriptions and decorations adorning the palace. Piacentini employed more than 50 artists, representative of almost all the major art movements of that time (Futurism, Novecento art, etc): including the bas-reliefs with symbols of justice of Fausto Melotti, the austere ‘Justice’ of Attilio Selva, the large mosaic by Mario Sironi of ‘Justice armed with law’, the bas-relief ‘Justice between the Legislative and the Executive Power’ by Lucio Fontana, ‘The good (does not) kill(s) evil’ by Giacomo Manzù, the enormous bas-relief ‘Corporative justice’ by Arturo Martini, the other ‘Justices’ of Romano Romanelli and Arturo Dazzi, the high-relief in white marble ‘Guilt kneeling to Justice in the act of submission’ by Antonio Maraini, the mosaics of Gino Severini, the frescoes of Massimo Campigli and Carlo Carrà, and many other images of Justice by Conti, Santagata, Rosso, Tozzi, Bucci, Funi and Marussig. Even so, this ‘Museum of Modern Art’ totally focused on justice attracted much criticism. Some works were accused of being ‘degenerate art’116 and Piacentini had to defend both the individual artworks and his project as a whole.117 Also, even though Roman law concepts may have inspired the project, we do not encounter, by contrast with nineteenth-century courthouses, statues and images of famous Roman lawyers, although we do find in the main façade and along the other sides of the building famous sentences from Ulpian and Cicero. Scholars of the iconography of justice share the belief that in the modern period the semantics and iconography of justice are being progressively impoverished.118 They are often stereotyped images. The Palace of Justice of Milan sought to restore to justice its value as image and idea. In the main central courtyard the visitor is welcomed by a porphyry statue of the Greek Goddess Themes sitting stiffly as a Roman matron with sword and sceptre. The statue of Attilio Selva (1888–1970) imparts an idea of severity and sternness.119 The great mosaic (1936) of Mario Sironi (1885–1961) dominating the courtroom of the court of appeal and assize represents ‘Justice armed with Law’. This is one of the major works in the Palace and seeks to offer a comprehensive image. Justice is holding the sword, but the Law is near her. Force (a man holding a fasces) and Truth, a woman partially dressed, complete the decoration together with Roman symbols. Furthermore, Justice is on several occasions represented together with the other powers of the State: thus we have a marble bas-relief of ‘Justice between the Legislative and the Executive Powers’ (1937–39) by Lucio Fontana (1899–1968), and a bas-relief of ‘Justice and the Executive Power’ (1937–39) by 114 Calzini (n 109) 6. 115 See Cioli (n 113). 116 Only after the racial laws of 1938 – and the German Nazi campaign of 1937 against Entartete Kunst [Degenerate Art] – do we encounter in Italy explicit references to ‘deviant artists’. See A Negri et al, Anni Trenta. Arti in Italia oltre il fascismo (Florence, Giunti, 2012) 150. 117 See Piacentini’s letter to the Podestà of Milan, 2 August 1939, quoted by Lupano (n 87) 153, 180. 118 Compare A Prosperi, Giustizia bendata. Percorsi storici di un’immagine (Turin, Einaudi, 2008). 119 All the images of the artworks in the Milan courthouse are commented upon, albeit cursorily, by Galasso (n 79).

30  Luigi Lacchè Ercole Drei (1886–1973). The images are concerned above all with three contexts: divine and biblical justice, Roman justice, Fascist justice. The hall of the Court of Appeal is dominated by three great bas-reliefs illustrating these three moments. The ‘Corporative justice’ (1936–37) of Arturo Martini (1889–1947), one of the greatest Italian sculptors between the two World Wars, offers a gigantic image of justice sitting on the trunk of the Tree of Good and Evil, holding the scales and the sword. Incidents from Greek myth and from the Gospel surround her.120 In general, I would point out that Fascist symbols, though present,121 are by no means dominant.122 Even Mussolini has been placed in the lower part of the oil painting ‘Justice between heaven and earth’ (1936–38) by Primo Conti (1900–88), among the heroes (such as Napoleon) who can be judged. The painter received an official reprimand, but the painting was not destroyed.123 Indeed, the greater part of the iconography was drawn from other stories. It dealt first with Old and New Testament episodes and characters.124 Yet just as important were the various references to Roman history and Roman law.125 One also cannot fail to notice images recalling the greatest legislators (Justinian, Gratian, Napoleon)126 or various aspects of Milanese history: the city’s patron saint, Saint Ambrose, the Lombard League and the Viscontis.127 The collection of artworks offers so many representations of justice and its attributes, in so many different styles that it is impossible to list them all here. The mosaics by Gino Severini (1883–1966) or the bas-reliefs in white marble by Carlo Pini (1902) or Italo Griselli (1880–1958) or others, sometimes with unusual attributes or symbols of Justice, give us the largest and most heterogeneous inventory of images and 120 R Bacchelli, La Giustizia Corporativa. Altorilievo per il Palazzo di Giustizia in Milano di Arturo Martini (Milan, Edizione del Milione, 1937). 121 Of course, with several ‘fasces’ (subsequently removed). 122 eg, the marble bas-relief ‘The Fascist laws’ (1938) by Leone Lodi (1900–1974) and the mosaic ‘Fascist justice’ (1937–39), subsequently removed, by Antonio Giuseppe Santagata (1888–1985), are patently Fascist. 123 ‘Una grande tela di Primo Conti per il nuovo Palazzo di Giustizia di Milano’ (1939) L’Italiano Turin 14 July; (1939) Il Popolo d’Italia Milan 14 July; ‘Una grande tela di Primo Conti per il nuovo Palazzo di Giustizia di Milano’ (1939) Gazzetta del Popolo della Sera 15 July. Dino Grandi and Giuseppe Bottai intervened to defend Conti’s work. 124 Among these, ‘The condemnation of Cain’ (1937–39) by Giovanni Prini (1877–1958), high-relief in white marble; ‘The Fall of Lucifer’ (1937–39) by Alberto Bazzoni (1889–1973), pink marble bas-relief; ‘Earthly Justice and divine retribution’ (1937–39) by Luigi Broggini (1908–83), pink marble bas-relief; ‘The Archangel Michael’ (1937–39) by Eros Pellini (1909–93), bas-relief in red granite and metal; ‘Biblical Justice’ (1936–37) by Arturo Dazzi (1881–1966), high-relief in white Carrara marble; ‘Parable of the Talents’ (1937–39) by Giulio Rosso (1897–1976), fresco; ‘Adam and Eve after the Fall’ (1937–39) by Mario Tozzi (1895–1979), fresco; ‘The archangel Gabriel between Adam and Eve’ by Gianfilippo Usellini (1903–1971), fresco; ‘Moses who sends flames from the sky against pagan idols’ (1937–39) by Achille Funi (1890–1972), fresco; ‘The Judgement of Solomon’ (1939) by Guido Cadorin (1892–1975), fresco; ‘Moses with the Tablets of the Law’ (1939) by Siro Penagini (1885–1952), fresco; ‘Judgement’ (1938–39) by Carlo Carrà (1881–1966), fresco. 125 eg, ‘The Praetor Urbanus, between two lictors, performing his official functions’ (1939) by Timo Bortolotti (1884–1954), bas-relief in marble; ‘Brutus as the judge of the traitors to the Motherland’ by Nino Galizzi (1891–1975), bas-relief in pink marble; ‘Roman Justice’ (or ‘Trajan’s justice’) (1936–37) by Romano Romanelli (1882–1968), high-relief in white Carrara marble; ‘Marcus Aurelius’ by Ottavio Steffenini (1889–1971), fresco; ‘Justinian’ (1937–39) by Antonio Giuseppe Santagata (1888–1985), mosaic; ‘Roman justice’ (1938) by Guido Marussig (1885–1972), mosaic; ‘Justinian gives new laws and frees a slave’ (1938) by Carlo Carrà (1881–1966), fresco; ‘Trajan and the widow’ (1938) by Ferruccio Ferrazzi (1891–1978), encaustic. 126 eg, the mosaics by Antonio Giuseppe Santagata (1888–1985). 127 ‘Saint Ambrose scourging the blasphemers’ (1937–39) by Enrico Saroldi (1878–1954), pink marble bas-relief; ‘The Lombard League’, ‘The Visconti’, ‘Saint Ambrose’ (1938) by Leone Pini (1900–74), bas-reliefs in white marble (1938).

‘Also and Above All a Regime of Justice’  31 symbols of Justice related to Fascist ideology. If the architecture of Milan’s Palace of Justice conveys a sense of monumentality, unity and homogeneity, the gallery of modern art within shows clearly the variety of approaches to the visual arts during Fascism.

Fiat iustitia ne pereat mundus! Some (Provisional) Conclusions The lawyer Carlo Accetti in 1943 found that several of the images of justice featured in the building suffered from the fact of their resembling each other too closely. In particular, he noted a justice overly intent upon punishment, although the concept meant also mercy and solace to body and soul alike.128 Certainly, the Fascist imaginary of the Stato forte, with its criminal system built up between 1925 and 1931, was based on an active idea of force and repression. It had first and foremost to defend the state and the new political regime. As Accetti observed, the Palace of Justice corresponded to the repressive dimension of a justice ‘armed with law’ (that is, the criminal justice system founded by Rocco). However, once again, art could present a more nuanced picture as, for example, in the basrelief by Giacomo Manzù (1908–91) ‘The good (does not) kill(s) evil’ or in the high-relief by Romano Romanelli of the emperor Trajan represented as showing clemency towards a supplicant woman. The Palace of Justice in Milan has four sides. At the rear, in Via Santa Barnaba, we find another great threefold door surmounted by a broad inscription, IUSTITIA. On this façade there are two large bas-reliefs carved by Corrado Vigni (1888–1956), a sculptor much appreciated by Piacentini.129 The first one features Cicero’s maxim Iustitia fundamentum Regnorum (justice is the foundation of the kingdom). The second one is in fact the ‘maxim of life’ that in 1934 the general prosecutor, Eutimio Ranelletti would have wished to see carved in bronze on the facade of the new Palace. It is in marble here, but the specific medium used is beside the point. Fiat justitia ne pereat mundus! Let Justice be done lest the world perish! Hegel’s version, quoted by Appiani in 1927, and deployed once again a few years later by Ranelletti, can be seen as an evocative maxim for the new Fascist justice. The Palace of Justice was built in Milan during the apogee of the Fascist regime, before the catastrophe. The regime sought to create a city of justice, modern and efficient. Yet at the same time the Palace of Justice in Milan is an architectural and artistic manifesto and an enduring monument, built on a colossal scale. I think that we cannot too hastily define this imposing ‘machine’ only as ‘rhetoric’ and ‘propaganda’. We have to think more deeply about this project. Discourses on justice and repression had a specific autonomy, a strong ideological and political importance; indeed, they were one of the pillars of the new regime. This chapter is simply a first, tentative attempt to scrutinise the relationships between justice ‘made of stone’ and the specific qualities of Fascist ideology. The Fascist state aspired to be – as Mussolini said in 1932 on the occasion of the tenth anniversary of the seizure

128 C Accetti, La giustizia e il suo palazzo in Milano (Milan, Società Editrice Libraria, 1943, previously published in (1943) 1 Monitore dei tribunali). 129 Marcello Piacentini had a number of Vigni’s works at his home.

32  Luigi Lacchè of power – a ‘strong State’ but also a ‘State of justice’. It suppressed political dissent but aspired to be a ‘regime of justice’ serving to build up consensus in the new dimension of the ‘ethical State’. The rule of law was seriously undermined (if not destroyed) by the authoritarian turn based on punishment, repression, intimidation and ‘security measures’, but Fascism also pursued the idea that (criminal) justice might help to mould the ‘new Italians’. New laws and codes were intended to play their part in forging the new ‘Fascist man’, but this aim was rendered more visible through architecture and visual arts, introducing as they did appropriate symbols and representations. Fascist justice did not hesitate – unlike the liberal state – to declare and show its political nature. ‘Politicisation’ of justice was an integral part of the ‘totalitarian experiment’.130 Monumental justice was an important element within this overall strategy.

130 E Gentile, ‘Fascism in Power: The Totalitarian Experiment’ in A Lyttelton (ed), Liberal and Fascist Italy (Oxford, Oxford University Press, 2002). See RJB Bosworth, The Italian Dictatorship: Problems and Perspectives in the Interpretation of Mussolini and Fascism (London, Arnold, 1998) 9–10.

2 Criminal Law in Auschwitz: Positivism, Natural Law and the Career of SS Lawyer Konrad Morgen DAVID FRASER The SS, from the beginning of its formation, fought against crime on principle and at all costs, and it had a perfectly orderly administration of justice. Günther Reinecke1

Criminal Law in the Criminal State: Re-imagining the Jurisprudence of Nazi Law For too long, the ideological construction of the Nazi regime has centred on its inherent barbarity, informed by the core idea of the criminal state (Verbrecherstaat): Fanatical, ruthless, and even unbalanced as the German leaders may have been, they were never purposeless. Law and justice were destroyed for a reason. They were destroyed because by their very nature they stood athwart the path of conquest, destruction, and extermination which the lords of the Third Reich were determined to follow.2

At the heart of that extermination was the SS, a criminal organisation charged with the murderous elimination of European Jewry. The thematic of Nazi criminality embodied in the Nuremberg trials has not disappeared or weakened, despite the emergence of more careful historical accounts of the National Socialist period.3

1 Testimony before the International Military Tribunal, Nuremberg, 6 August 1946, Trial of The Major War Criminals Before the International Military Tribunal (Nuremberg, International Military Tribunal, 1948), vol XX, 427. 2 US v Josef Alstoetter et al in Trials of War Criminals Before the Nuernberg Military Tribunals, Vol III, ‘The Justice Case’ (Washington, DC, USGPO, 1951) 57; compare D Fraser, ‘Evil Law, Evil Lawyers? From the Justice Case to the Torture Memos’ (2012) 3(2) Jurisprudence 391. 3 H Earl, The Nazi SS-Einsatzgruppen Trial 1945–1958: Atrocity, Law, and History (Cambridge, Cambridge University Press, 2009).

34  David Fraser Historians echo the unhelpful idealisation of the criminal state.4 A more fruitful legal historical and philosophical path can be found by rejecting the criminal state paradigm, and accepting that law was a central element of the Nazi state. The process of identifying, excluding and killing German and European Jews was lawful and law-full. This does not propose any form of apology for the Nazi regime and its death-dealing practices, nor does it deny or reject current positive German legality that imposes criminal liability on those involved in the organisational structures (Organisationsapparat) in Auschwitz.5 The criminal state taxonomy can be understood as a modern legal theoretical and positivist version of an argument post hoc ergo propter hoc (or ‘after the event and therefore because of it’), that offers no path to a critical analysis of the operating legal system of Nazi Germany. By identifying the contemporaneous evidence for an extant Nazi legal system, operating at the heart of the killing machine of the Shoah, the painful, but essential, task of acknowledging the constitutive elements of legalised barbarity can begin. By seeking the juridical core of the Holocaust, we engage a more fruitful moral debate about the nature of Holocaust and the role of law and lawyers therein. This is not a call for a historical examination of the conditions over time under which law is considered binding. It has a more limited goal of examining the conditions under which the killing of Jews was considered by German jurists as lawful. This project interrogates the underpinning notions of a ‘stateorganised mass criminality’ (staatlich organisierte Massenverbrechen) within current legal discursive practice about the Shoah. The case of SS Judge Konrad Morgen serves to demonstrate how legality operated at the heart of the administrative policing and killing regime, the main purpose of which was the creation of a Europe free of Jews. The Nazi camp system, in which Morgen carried out his work as an SS judge, fits within a framework that identifies and analyses the organised governance and governmentality of incarceration, violence, terror and death, a broad juridical ­Organisationsapparat. The Morgen case provides insights that move us away from historically and jurisprudentially flawed and falsely limiting debates. We can begin an ­intellectual journey of fuller discussion about the morality and ethics of mass killings under law, and our continuing disciplinary and institutional historical failure to work through this legal past. Konrad Morgen was an actor who, because of his particular role in concretising SS  legality within the camp system, crops up occasionally within the broader literature on the ­Holocaust, the camps and the SS. Morgen’s written and oral testimonies in postwar proceedings offer important primary source material.6 Raphael Gross has written a nuanced historiographical account of Morgen, one that offers vital insights into the moral miasma of Morgen’s judicial interventions in the Nazi camp system.7 More recently, Herlinde ­Pauer-Studer and J David Velleman have produced what must be considered the 4 C Gerlach, The Extermination of the European Jews (Cambridge, Cambridge University Press, 2016). 5 BGH 3 StR 49/16- Beschluss vom 20 September 2016 (LG Lüneburg). 6 Morgen also appeared as witness in the Frankfurt Auschwitz Trials in the 1960s and some discussion of that testimony features herein. For sometimes conflicting broader historical accounts and analyses of the ­Frankfurt Auschwitz trials see R Wittmann, Beyond Justice: The Auschwitz Trial (London, Harvard University Press, 2005); and DO Pendas, The Frankfurt Auschwitz Trial 1963–1965: Genocide, History, and the Limits of the Law (Cambridge, Cambridge University Press, 2006). 7 R Gross, ‘“The Ethics of a Truth-Seeking Judge”: Konrad Morgen, SS Judge and Corruption Expert’ in C Wiese and P Betts (eds), Years of Persecution, Years of Extermination: Saul Friedländer and the Future of Holocaust Studies (London, Continuum, 2010).

Criminal Law in Auschwitz  35 definitive work of moral biography on Morgen’s judicial career, and the most challenging ­philosophical analysis of his legal activities.8 Together these sources fill out the intellectual argument about Morgen as juridical actor and place debates about SS legality within the context of the engagement with the Nazi state. Morgen experienced a number of ups and downs in his career within the SS, in part due to his abrasive personality, and to the various rivalries inside and outside the SS ­apparatus. Morgen operated as part of the SS and Police Judiciary (SS-und ­Polizeigerichtsbarkeit), a special juridical body meant to deal with criminality within the organisation. Morgen became an expert in corruption in the camp system and led important investigations into the operations of Buchenwald, Dachau and Auschwitz, among others. His enquiries into theft and corruption brought him into the heart of the camps, and face to face with the killing processes of the euthanasia programme against prisoners, and mass killings of Jews. Morgen played a key role in the legal apparatus of the Nazi camp system. He testified in post-war legal proceedings about SS judicial structures, and voiced important jurisprudential understandings about the nature and extent of lawful killing within the camps. Over a significant period of time, Morgen articulated, as a truth-seeking judge and ­Gerechtigkeitsfanatiker (justice fanatic), the Nazi rule of recognition.9 Zygmunt Bauman analysed the Nazi state apparatus in terms of its place within the templates of modern bureaucratic structures, and addressed the ways in which these ­structures themselves might allow us to situate a sociological (and socio-legal) understanding of the morality of National Socialism.10 The earlier work of Ernst Fraenkel offers a useful constitutional legal framework for comprehending the Nazi state within the dual structures of the normative and prerogative apparatuses.11 By adding an argument that Fraenkel’s prerogative state was itself grounded in a legal normativity, we can grasp the true jurisprudential stakes of engaging with Nazi law. The camp system and legality in the life of Morgen must be situated within an intellectual structure that understands the camps as organs of the Nazi state, embodying both the normative and the prerogative aspects, legally constituting National Socialism.

History, Law and ‘Murder’ in the Camps: The Continuing Mythology of the Criminal State A.  Framing the Legal Apparatus Recent historiography of the Nazi regime and the Holocaust has begun to focus on the roles played by the camp system.12 These new histories offer a welcome set of contextualised 8 H Pauer-Studer and JD Velleman, Konrad Morgen: The Conscience of a Nazi Judge (Basingstoke, Palgrave Macmillan, 2015); and H Pauer-Studer and JD Velleman, ‘Weil ich nun mal ein Gerechtigkeitsfanatiker bin’: Der Fall des SS-Richters Konrad Morgen (Berlin, Suhrkamp Verlag Ag, 2017). 9 Compare K Rundle, ‘The Impossibility of an Exterminatory Legality: Law and the Holocaust’ (2009) 59 University of Toronto Law Journal 65. 10 Z Bauman, Modernity and the Holocaust (Ithaca, NY, Cornell University Press, 1991). 11 E Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (New York, Oxford University Press, 1941; reprinted by The Lawbook Exchange, 2010). 12 W Sofsky, The Order of Terror: The Concentration Camp (Princeton, NJ, Princeton University Press, 1997).

36  David Fraser s­ tudies of the roles played by different institutions within broad administrative s­ tructures, as well as bringing a more nuanced and periodised hermeneutic to bear.13 A limited and ­limiting image of the camps was created by a series of criminal trials focusing on the ­punishment of camp officials in the immediate aftermath of the war.14 In dealing with any proposed new socio-legal historical and jurisprudential rendering of the camp/law nexus, we need to engage in a serious and critical fashion with the legal historical creation of the criminal state hermeneutic. There is an emerging body of scholarship on the movements and rivalries between the concentration camp structure as a security apparatus, under the SS criminal police of the RSHA (Reichssicherheitshauptamt – Reich Security Main Office) and the economic oversight of the WVHA (Wirtschaftsverwaltungshauptamt – Economic Administration Main Office). The simple existence of the dual structure of the police (RSHA) and the economic (WVHA) arms at the heart of the camp system offers an important starting point for any future analysis of the ways in which the camps functioned, and according to which they fit into the broader juridical apparatuses of the Nazi state. Camps had to be staffed; staff had to be fed; leisure time activities had to be organised; slave labourers had to be identified and provided to various enterprises associated with the SS economic structures; and payments for the use of that labour had to be made and accounted for within the SS system. This occurred within a normal bureaucratic structure that we easily recognise as one involving human resource allocations.15 The conflict at the heart of the Nazi state, once war had begun, between the military and economic imperatives of the drive to conquest, and the biological and ideological demands at the core of the National Socialist project of a Judenrein European space, resulted in ongoing battles between the WVHA and RSHA.16 The camp system was legally constituted and bureaucratically defined through ideological, political and legal jurisdictional battles within the Nazi state apparatus.17 Structurally and organisationally at least, the camps constituted a system, created, maintained and defined within an existing, and legalised, governmental logic in the context of a broader state structure. The second key aspect of this legal constitution of the concentration camp system relates more specifically to the professional biography of Konrad Morgen. It is not possible to situate the juridical activities and criminal investigations carried out by Morgen within the camps without understanding the system as one that was legally constituted as part of a bureaucratic and legal struggle for domination within the Nazi state. Morgen’s career was defined by a series of conflicts within the criminal police apparatus of the SS over the pursuit of internal criminality, and by the interpersonal and structural rivalries within an existing and legally vibrant bureaucratic SS structure, including its juristic components. 13 J Caplan and N Wachsmann (eds), Concentration Camps in Nazi Germany: The New Histories (Abingdon, Routledge, 2010); C Goeschel and N Wachsmann (eds), The Nazi Concentration Camps, 1933–1939: A Documentary History (Lincoln, NE, University of Nebraska Press, 2012). 14 Trial of Josef Kramer and Forty-Four Others (The Belsen Trial) in The War Crimes Trial Series (London, William Hodge & Co, 1949), Vol II; Trial of Wolfgang Zeuss et al (The Natzweiler Trial) in The War Crimes Trial Series, Vol V; US v Oswald Pohl et al in Trials of War Criminals Before the Nuernberg Military Tribunals, Vol V, ‘The Pohl Case’ 193. 15 F d’Almeida, Ressources inhumaines: la gestion des gardiens de camps de concentration (Paris, Fayard/Pluriel, 2013). 16 JE Schulte, Zwangsarbeit und Vernichtung: Das Wirtschaftsimperium der SS (Paderborn, Schöningh, 2001). 17 N Bertrand, L’Enfer Réglementé: Le régime de détention dans les camps de concentration (Paris, Perrin, 2015).

Criminal Law in Auschwitz  37 SS law in Auschwitz was constituted by a complex series of internal and external political, personal, bureaucratic and legal jurisdictional conflicts, all of which occurred within an overarching dual state, but always inside the constitutional and legal structure of the camp system.

B.  Law, History and the Ideology and Jurisprudence of the Camps Recent studies of different aspects of the camp system offer important insights, especially on key questions of continuity and evolutionary change. Jurisprudentially, they founder at the point at which the disciplines of history and law are torn apart in their understandings of the National Socialist regime.18 The key work setting the intellectual and methodological frame, highlighting the law/history dichotomy, is Nikolaus Wachsmann’s magisterial account, KL: A History of the Nazi Concentration Camps.19 The strength of Wachsmann’s study is the care with which he seeks to contextualise the lives of all participants in the concentration camp system, guards and prisoners alike. He strikes an important balance between writing about and studying the camp system as a whole, and treating the specificities of the different camps. Of vital significance to historical legal inquiry, he situates the camp system as part of a larger, more elaborate penal governance structure within the National Socialist state: ‘the SS concentration camps belonged to a wider Nazi web of terror, which encompassed other repressive bodies such as the police and the courts, and other places of confinement, such as prisons, ghettos, and labor camps’.20 While such interventions allow a fuller understanding of the camps, they still deploy terminology that is morally charged, positively inaccurate and theoretically unhelpful in relation to any project of comprehending the place and role of Nazi law, either generally or within the specific contexts of the concentration and extermination camp systems. Accounts by historians invariably refer to the killing of inmates, often Jewish, as murder. While this may be accurate within the paradigm of ex post facto legal positivism, s­ ituated within p ­ ost-war jurisprudential configurations of the Nazi state and its actors, the label is, as a matter of socio-legal historical and jurisprudential research, unhelpful and counterproductive. In the absence of context, explanation, or limiting definitional arguments, historians cannot borrow a technical and crucial legal term like ‘murder’ and use it with 18 C Dillon, Dachau and the SS: A Schooling in Violence (Oxford, Oxford University Press, 2015); K Wünschmann, Before Auschwitz: Jewish Prisoners in the Prewar Concentration Camps (Cambridge, MA, Harvard University Press, 2015); E Mailänder, Female SS Guards and Workaday Violence: The Majdanek Concentration Camp, 1942–1944 (East Lansing, MI, Michigan State University Press, 2015). S Helm, If This Is A Woman: Inside Ravensbruck: Hitler’s Concentration Camp for Women (London, Little Brown, 2015) offers important analyses of the role of gender in the camp system. This would also become an issue during the career of Konrad Morgen, who was shocked by the sexual activities between SS guards and Jewish women prisoners that he uncovered during his investigations. Indeed, it might be argued that Morgen’s outrage at sexual profligacy and possible violations of the Rassenschande legal prohibitions, when compared with his relatively calm acceptance of the mass killing through euthanasia at the camps, or the selection and gassing process at Auschwitz, give a clear indication of the peculiarities of his moral radar. 19 N Wachsmann, KL: A History of the Nazi Concentration Camps (London, Little Brown, 2015). 20 ibid 19.

38  David Fraser intellectual impunity. The argument that the term has a different meaning when used by historians is intellectually lazy and ideologically dangerous. This is a fortiori the case when discussions take place within broader emplotments of the Nazi regime’s system of terror, of the perversion of the justice and penal systems, and in the context of criminal trials against alleged perpetrators. The issue for both lawyers and historians of National Socialism is to understand the core values, practices and institutions of the Nazi state. To argue both that there was a form of Nazi law, or a still operating normative judicial system that sought to regulate activities inside the camps, and then analyse that system or constituent elements and actors, as if law does not have a lexical role to play, is unacceptable. To proceed in this fashion, to invoke murder in the semiotics of the camps, and to pretend that murder does not have a particular meaning, is to adopt a heavily ideological vocabulary while asserting that one is engaging in valid and objective historical enquiry. There are emotionally charged political and ethical concerns at play, and while they are not misplaced in any discussion of the Nazi state, intellectually convincing argument and analyses demand that such hermeneutic assumptions be clearly articulated. We must refocus on the idea of the Nazi camp system concentration camps, labour camps, extermination camps and various combinations thereof – where law was always present.

Konrad Morgen, SS Judge, and the Law of Killing A.  Contextualising the Jurisprudence of Konrad Morgen That there was an intimate connection between the mass killing of Jews and the dangers of corruption to the inner workings of the camps, and to the ethos of the SS is hardly surprising. In his famous speech to SS officers in Poznan in October 1943, Himmler set out the legal and ethical frame for carrying out the Final Solution: The wealth they possessed we took from them. I gave a strict order, which has been carried out by SS Obergruppenführer Pohl, that this wealth will of course be turned over to the Reich in its entirety. We have taken none of it for ourselves. Individuals who have erred will be punished in accordance with the order given by me at the start, threatening that anyone who takes as much as a single Mark of this money is a dead man. A number of SS men – they are not very many – committed this offense, and they shall die. There will be no mercy. We had the moral right, we had the duty towards our people, to destroy this people that wanted to destroy us. But we do not have the right to enrich ourselves by so much as a fur, as a watch, by one Mark or a cigarette or anything else. We do not want, in the end, to be destroyed by this bacillus and to die. I will never stand by and watch while even a small rotten spot develops or takes hold. Wherever it may form we will together burn it away. All in all, however, we can say that we have carried out this most difficult of tasks in a spirit of love for our people. And we have suffered no harm, to our inner being, our soul, our character.21

21 ‘From a Speech by Himmler Before Senior SS Officers in Poznan, October 4, 1943’ in Y Arad, I Gutman and A Margaliot (eds), Documents on the Holocaust (Lincoln, NE, University of Nebraska Press and Yad Vashem, 1999); H Buchheim, ‘Command and Compliance’ in H Krausnick et al, Anatomy of the SS State (London, Collins, 1968).

Criminal Law in Auschwitz  39 Konrad Morgen accepted and embodied this ethical, moral and judicial framework in his attempts to root out corruption among SS officers and enlisted men in the camp system. To steal property in the camps was to steal from the Reich. To engage in such larcenous activities attacked the core ethics of the SS; it was a crime against honour, an idea with a strong social, not to mention juridical, history within German culture,22 and which the Nazis echoed in a new context and evolving spirit.23 The SS embodied the ethical Geist of the new Volksgemeinschaft (national community). Its members were bound by higher standards, by a new vision of German honour, their ‘inner being, soul, and character’. Pauer-Studer and Velleman reject the proposed moral equivalence between an obligation not to steal and the right to kill Jews drawn by Himmler as ‘ridiculous’, but such a characterisation is external to an SS ethical legality.24 That the killing of Jews was constructed, understood and acted upon as a moral, and a legal obligation, and the moral duty not to steal was constructed in terms of obligations to the Reich (the National Socialist State) and the Volk (nation) should neither shock nor surprise us. It was impossible in the moral universe of the SS, embodied in Himmler’s speech, to have any other sort of obligation. The ethical demands upon the SS originated in their position as the racial elite within a racial state. Under no circumstances in the context of Nazi morality is it possible to conceive of a moral or legal obligation to a ‘bacillus’.25 Within this context we can begin to examine, and to attempt to understand, what Pauer-Studer and Velleman so aptly describe as Morgen’s ‘obliviousness to suffering, as opposed to crime’.26 Morgen’s first key public exposition of his life, career and jurisprudential vision can be found in his interrogations, affidavits and finally his testimony before the International Military Tribunal (IMT) at Nuremberg. He appeared as a defence witness in the section of the proceedings aimed at the SS. The indictment targeted the SS as one of the ‘groups or organizations (since dissolved) which should be declared criminal by reason of their aims and the means used for the accomplishment thereof and in connection with the conviction of such of the named defendants as were members thereof ’.27 On 7 August 1946, Morgen gave his testimony to the Tribunal.28 After setting out his early legal career, Morgen turned to the development of his special expertise in rooting out corruption within the camp system and the particular mandate he received to carry out his enquiries throughout the system. In ordinary circumstances, the jurisdiction of the ­investigating judge would have been limited to a specific geographical area, but Morgen received a ‘special power of attorney’ from Himmler.29 Morgen carried out criminal i­ nquiries

22 A Goldberg, Honor, Politics, and the Law in Imperial Germany, 1871–1914 (Cambridge, Cambridge University Press, 2010). 23 JQ Whitman, ‘On Nazi “Honour” and the New European “Dignity’” in C Joerges and N Singh Ghaleigh (eds), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Legal ­Traditions (Oxford, Hart Publishing, 2003); and GL Neuman, ‘On Fascist Honour and Human Dignity: A Sceptical Response’ in C Joerges and N Singh Ghaleigh, Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Legal Traditions (Oxford, Hart Publishing, 2003). 24 Pauer-Studer and Velleman, Konrad Morgen (n 8) 42. 25 R Gross, Anständig geblieben: Nationalsozialistische Moral (Frankfurt, S Fischer, 2010); W Bialas, ‘Nazi Ethics: Perpetrators with a Clear Conscience’ (2013) 27 Dapim: Studies on the Holocaust 3. 26 Pauer-Studer and Velleman, Konrad Morgen (n 8) 46. 27 Trial of the Major War Criminals before the International Military Tribunal, vol I. 28 Trial of the Major War Criminals before the International Military Tribunal, vol XX, 487. 29 ibid 488.

40  David Fraser that resulted in over 800 cases, and the death by firing squad of two camp commandants and several other lower ranking officials.30 Qualifications must be given to such testimony, coming from a high-ranking SS legal official in US custody, seeking at some key level to avoid self-incrimination. Morgen describes conditions at Buchenwald as ‘a great surprise to me’.31 The installation was pristine, freshly painted, with lawns and flowers. ‘The prisoners were healthy, normally fed, sun-tanned, working’.32 Whatever one might think about Morgen’s concentration camp experience among the flower beds and freshly painted facilities, what does emerge from all his recorded statements, from his capture, to all his appearances before investigators, lawyers and judges, is his never-wavering commitment to an idealised version of the SS as a morally upright and legally bound organisation. The documentary record, and the testimony of other witnesses, confirm much of what Morgen had to say about his career and his investigations of theft and corruption in the system of concentration and extermination facilities. What Morgen describes, supported by other evidence, is the operation of a legal normative system within the very heart of the Nazi terror regime. Within this legal system of investigation, trial and punishment, Morgen embodied and gave full juridical force to Himmler’s promise at Poznan that no mercy would be shown to any SS member who dishonoured the sacred mission of the organisation and who failed the ethical duty of SS membership by stealing property from the Reich. Morgen’s dogged investigations of theft and corruption led him to the inevitable conclusion that something more was going on: I learned that the starting point for the corruption was the assignment of Jews to the camps after the action of 1938. I made it a point to learn all the possible facts about this action, and in doing so I found that the majority of the prisoners who were suspected of knowing something about these cases of corruption, had died. This peculiar frequency of killings was noticeable; it struck me because other prisoners who were not in any key positions remained in Buchenwald for years in the best of health, and were still there, so that it was rather remarkable that it was just certain prisoners who might have been possible witnesses who had died. I thereupon examined the files concerning these deceased prisoners. The files themselves offered no clues to suspect illegal killings. The dates of the deaths were years apart and in each case different causes of death were given. But it struck me that the majority of these deceased prisoners had been put into the camp hospital or in arrest shortly before their death. This aroused my suspicion for the first time that in these two places murders of prisoners might possibly have occurred.33

From the killings of these prisoners with knowledge of corrupt practices, Morgen followed the investigative trail of corruption and theft to mass killings ‘by chance’.34 The paths of inquiry led to Lublin and to Auschwitz. In Lublin, Morgen encountered Christian Wirth who explained to the investigating judge that he was acting on specific orders from Berlin. Wirth was tasked with translating his skills and expertise gained in the T4 ­euthanasia 30 ibid 489. 31 ibid 490; compare US v Josias Prince zu Waldeck et al, Case No 000-50-9, 1947; DA Hackett (trans), The Buchenwald Report (New York, Basic Books, 1997); PM Neurath, The Society of Terror: Inside the Dachau and Buchenwald Concentration Camps (London, Paradigm, 2005). 32 Trial of the Major War Criminals before the International Military Tribunal, vol XX, 515. 33 ibid 490–91. 34 ibid 492.

Criminal Law in Auschwitz  41 programme and applying those to the mass gassings of Jews in Poland: ‘From the piles of things – there was an enormous number of watches piled up – I had to realize that­ something frightful was going on here’.35 Morgen went into some detail about conditions in different types of camps and more importantly, into careful descriptions of the types of killings that occurred in the camps – prisoners who killed other prisoners; prisoners killed by camp guards and officials for different, but personal reasons; and the mass killings he had previously mentioned. Morgen testified about having witnessed executions and gathered evidence of the killing apparatus. In normal circumstances, he would have arrested Wirth and Auschwitz Commandant Hoess and charged them with murder. When asked why he did not, in face of the overwhelming evidence, and the confessions from Wirth and Hoess that they were involved in mass killings, especially of Jews, Morgen explained that the norms of ordinary criminal law did not operate in Germany at the time and especially not in Poland. Germany was at war. The orders to kill Jews came from Hitler, the Supreme Commander. As an SS judge, Morgen had no jurisdiction to arrest the Commander; no court martial had jurisdiction to try the Führer; and as a matter of operative positive law, a Hitler order made the killings lawful:36 As supreme orders I consider the mass extermination of human beings which has already been described, not in the concentration camps but in separate extermination places. There were also execution orders of the Reich Security Main Office against individuals and groups of persons.37

Yet Morgen claimed that he knew something had to be done to make Hitler withdraw his orders. Morgen testified that he approached various officials in the Nazi police and judicial hierarchy, and that he proceeded to charge some camp officials with murder, thereby ­attacking the administrative core of the killing apparatus. He claimed to have ended various forms of killing prisoners, particularly through euthanasia.38 One might question the factual accuracy and causal analysis put forward by Morgen. But two points of vital importance emerge from his testimony. Morgen had a moral objection to the mass killings that he uncovered in Poland and he sought to invoke norms of positive legality to deal with these practices. This is a position seemingly at odds with his actions against corrupt practices in the camps that had been his focus up to this point. The normative world of SS values of honour and dignity, or honesty and morality, coincided with and were embodied in, the legal principles he sought to enforce. On the other hand, the values he sought to enforce clashed with the positive law of the Hitler order. Morgen does appear to have had some, perhaps belated, principled, moral objections to the mass killings he witnessed. Morgen’s activities in fighting theft and corruption fit within a morally driven juridical discourse and practice. In relation to any notion of objecting to the mass exterminations of the Final Solution, however, he recognised that he was stymied by an existing legal order. He could do nothing in relation to ‘killings ordered by the head of State, but I could do it for killings outside of this order, or against this order’.39 What Morgen describes from the internal point of view of an actor within the legal normative structures of the SS, in the form

35 ibid

495. 506. 37 ibid 499. 38 ibid 507–08. 39 ibid 507. 36 ibid

42  David Fraser of a Nazi Hartian rule of recognition, is a clearly defined and broadly understood ­juridical distinction between lawful killings and unlawful killings. This distinction, an element of most legal systems, was operating at the heart of the Nazi killing machine. For Morgen, who saw himself as exemplifying the ideals of the SS legal system, the Hitler order in relation to the mass killings of Jews, under which Wirth and Hoess operated, was the lawful justification for these killings.40 Likewise, an order from Hitler’s Chancellery in relation to the euthanasia programme rendered those killings legal. Other killings, outside these orders – killings for revenge, for personal motives, to cover up corruption, etc – were unlawful and could and should be pursued within the normal SS judicial apparatus. Morgen’s testimony, and his actions, clearly confirm both that a legal order operated at the very heart of the Nazi killing machine in Auschwitz, and more importantly, that a key normative rule of that order was the lawfulness of the extermination of European Jewry. Morgen operated unselfconsciously (except perhaps once he experienced moral qualms), as an ardent and active SS judge, carrying out an ethically charged duty to maintain the rule of SS law within the ranks, to root out and to punish corruption, and eventually to punishing illegal killings.

B.  The Historical-Juridical Portrayal of Konrad Morgen: The Continuity of Misrepresenting Nazi Jurisprudence Morgen, because of his activities in the camp system, and his intimate knowledge of the extermination programme that operated in Poland, appeared in a number of judicial proceedings in West Germany in the post-war period.41 He features in historical accounts of the camps. These texts situate Morgen as an important figure for socio-legal historical inquiry and to set out the ways in which broader, more central issues of Nazi legality have been dealt with when faced with a truth-seeking, morally informed, SS judge who operated under a clear understanding that the killing of Jews in extermination facilities, under a Hitler order, was perfectly legal. Morgen makes his first vital appearance in Eugen Kogon’s early work on the concentration camp system, published in English under the title, The Theory and Practice of Hell: The German Concentration Camps and the System behind Them.42 Kogon describes Morgen as ‘ambitious’ and ‘a figure of considerable interest’.43 He discusses the SS jurist in the context of the investigation of the commandant of Buchenwald, Karl Otto Koch, and his wife Ilse, on accusations of corruption. Koch would eventually be executed, although his wife was acquitted in the same SS trial.44 40 P Longerich, The Unwritten Order: Hitler’s Role in the Final Solution (Stroud, Tempus, 2001). 41 These instances are studied in more detail in Pauer-Studer and Velleman, Konrad Morgen (n 8); and Gross, ‘“The Ethics of a Truth-Seeking Judge”’ (n 7). Morgen also makes an appearance in semi-fictionalised form in J Littell’s excretory Les Bienveillantes (Paris, Gallimard, 2006) 548. 42 E Kogon, The Theory and Practice of Hell: The German Concentration Camps and the System Behind Them (New York, Farrar, Strauss and Giroux, 1950/2006). 43 ibid 292. 44 Ilse Koch was convicted at the Buchenwald trials held at Dachau and sentenced to life in prison. This sentence was controversially commuted after two years by US zone commander, General Lucius Clay: see M Koessler, ‘The Ilse Koch Senate Investigation and its Legal Problems with Observations on Double Jeopardy and Res ­Judicata’ (1958) 23 Missouri Law Review 1. Koch was rearrested and tried under different counts by the West German government. She was again sentenced to life imprisonment in 1951 and committed suicide in prison in 1967.

Criminal Law in Auschwitz  43 Kogon is unconvinced by the argument that the SS pursuit of corruption was attributable to any morally informed crusade. He adopts the view that personal rivalry and animosity in the SS structures led to the investigation of Koch. Whatever the motivations at the origins of Morgen’s enquiries, the Kochs were arrested and prosecuted. For Kogon, the system was one characterised by little more than brutality and terror: ‘The tortuous maze of conflicting personal interests among the SS officers simply erupted at a given point – an abscess on the rotten body burst open’.45 Kogon recounts one anecdote about Morgen’s inquisitorial technique that, if true, casts the morally determined SS judge in a different and more problematic light. Morgen, during his investigation of the property offence allegations, uncovered what he believed was a case of the murder of an SS sergeant, Köhler, who was in a position to reveal many incriminating details of the massive corruption at the camp. The post-mortem examination of Köhler showed poisoning by an unknown alkaloid as the cause of death. At this stage, Kogon’s account is broadly consistent with Morgen’s own retellings of the ways in which his investigations of theft and corruption led him to a number of instances of murder. According to Kogon, Morgen carried out an experiment on four prisoners by administering various alkaloids to them in their soup, to determine with precision the chemical agent responsible for Köhler’s demise. When they did not die, they were killed by strangulation.46 Morgen, perhaps unsurprisingly, did not mention this incident in his interrogations or trial testimonies after the war. Pauer-Studer and Velleman make no mention of Kogon’s story, while Gross repeats the allegation, notes that some form of inconclusive post-war proceeding was instituted against Morgen, and simply ends his brief discussion by questioning the veracity or at least the accuracy of Kogon’s tale.47 If Kogon’s story were entirely true, all that would be demonstrated is that SS techniques were brutal, not really any sort of revelation at all, and that again Morgen operated under a set of normative frames that we might not find palatable, but that clearly informed his investigations. The killings occurred in the context of Morgen’s power of attorney from Himmler, not for an evil personal motive, but to further his inquests into iniquitous murders, carried out for purely selfish reasons. One might raise the issue as to whether such killings as alleged by Kogon fell within the framework of a legally binding, permissive order from Himmler, allowing Morgen to take all necessary steps to uncover the greater evils of corruption and killings to mask corruption, and that would be an interesting legal historical study. But, most crucially, it would always be an inquiry about the nature and extent of the legal system within the SS and within the camps. It would and could not be an inquiry into the ‘not law’ (Unrecht) of the camps. The frame by necessity is and would be that under which Morgen always operated, the one in which the camps had a system of legal and illegal killings, in which law and its core taxonomies were always present.

45 Kogon (n 42) 292. 46 ibid 291. 47 Pauer-Studer and Velleman, Konrad Morgen (n 8); and Gross, ‘“The Ethics of a Truth-Seeking Judge”’ (n 7) 195–96. G Reitlinger, The Final Solution: The Attempt to Exterminate the Jews of Europe 1939–1945 (New York, Beechhurst Press, 1953) 124 places this anecdote among other unproven accounts that cast Morgen as more committed to the Final Solution and Nazi ideology than he claimed. At 123–24 he offers an early characterisation that shares much with Pauer-Studer’s and Velleman’s assessment, when he describes Morgen, as ‘a boastful man of some integrity, though not enough’.

44  David Fraser

C.  Wittmann, Wachsmann and the Current Misrepresentation of Law in Auschwitz The second treatment of Morgen’s historico-legal career can be found in Rebecca W ­ ittmann’s study of his testimony before the court in the Frankfurt Auschwitz trial.48 It deals with Morgen in some detail, and most significantly, it embodies the continuing portrayal of Nazi law as Unrecht that haunts historiography. For Wittmann, Morgen’s appearance on the witness stand ‘forever altered the atmosphere in the courtroom’,49 but because his investigation had been ordered by the very men committing the crimes, he could investigate only corruption in the implementation of the orders.50 While there is some ambiguity in Morgen’s jurisprudential position, explored in significant detail by Pauer-Studer and Velleman, it is a fundamental taxonomical error to characterise the orders from Hitler and Himmler, both as a general jurisprudential matter, and within Morgen’s own juridical self-understanding, as crimes. Morgen consistently insists that what otherwise might have been murder ceased to fit the legal category once the supreme head had issued an explicit order permitting the acts in question. Killings authorised by Hitler (and Himmler) were legal, and Morgen never resiled from this legal positivist position. Wittmann’s characterisation of both Morgen’s testimony and of the camp system and its legality, as one imbued from top to bottom with murder, can only be grounded either in an unarticulated and methodologically suspect moral a priori, or in an again unarticulated ex post facto legal positivism grounded in IMT jurisprudence. From both the theoretical and philosophical perspectives, what is most worrying is that her presuppositions are unarticulated and can only be inferred. By invoking murder, Wittmann presupposes the illegality of the activities of the accused and therefore their guilt. In other words, Wittmann’s analysis of Morgen’s position, and her inaccurate, incomplete, unnuanced, assessment of Morgen, pre-empts the very purpose and function of the legal proceedings she is describing and analysing. This is not to suggest that she is incorrect in her assessment of the basic failings of the Frankfurt Auschwitz trials. Law proved singularly incapable of achieving the broad pedagogical goals of the prosecution team, and indeed of applying technical rules to deal with the nature of the camp killing machinery.51 But these are conclusions at which the historian should arrive after having examined the record. Wittmann instead accepts the assumptions of the Nazi criminal state thesis and shapes her analysis, perhaps unconsciously, within the paradigm. This leads to a mischaracterisation and misunderstanding of the actual jurisprudential and socio-legal historical import of Morgen’s testimony. Wittmann describes the questioning of Morgen in the following terms: ‘In retrospect, Hofmeyer’s questioning seems preposterous. His queries about what was allowed and when it was allowed deflected the blame, and shifted the focus to the crimes not allowed

48 Wittmann (n 6). See further B Naumann, Auschwitz: An Account of the Proceedings against Robert Karl Ludwig Mulka and Others before the Court at Frankfurt (London, Praeger, 1966). Morgen’s testimony is available at: www.auschwitz-prozess.de. 49 Wittmann (n 6) 141. 50 ibid 165. 51 Pendas (n 6).

Criminal Law in Auschwitz  45 by the Nazis’.52 Wittmann’s analysis is still always grounded in a refusal to accept any idea that Morgen’s assertions, accepted for the sake of the interrogation by the lawyers and judges present at the trial, that there was a set of operative and operating legal norms at Auschwitz, some of which went to the very question of the distinction between lawful and unlawful killing, could be true in any sense. Wittmann has obviously made up her mind that there is blame and the discussion of the distinction between lawful and unlawful killing at Auschwitz is some sort of smoke screen. This analysis seems to be grounded in a preconception about the impossibility of a Nazi legality, or at least about an operating Nazi legality within Auschwitz. Yet Morgen’s entire professional career as an SS judge was grounded in this very system. He investigated and charged his fellow SS members with crimes of corruption and murder on the basis of this legal system. The normative distinction between killings authorised by Hitler or Himmler, and therefore legal, and those carried out beyond the limits of these juridical permissions, and consequently unlawful, formed the basis of Morgen’s jurisprudential hermeneutic. Wittmann’s analysis falls much too easily into the trap of ex post facto condemnation and moral outrage, confusing moral blameworthiness and legal guilt, without a sound historical, socio-legal, or jurisprudential basis. One must be morally outraged at the existence of the Nazi killing machine, and one can, and must be, morally outraged at the operation of a Morgen-like distinction between lawful and unlawful killing in Auschwitz, but the distinction itself is not jurisprudentially or historically ‘preposterous’. Wittmann’s account of Morgen’s appearance at the Frankfurt Auschwitz trial, together with that of other SS judges, embodies and exemplifies the intellectual disutility of the criminal state thesis as a historical and jurisprudential tool: These judges who testified appeared dignified on the stand and commanded authority, as they retained legal positions after the war. They were colleagues of the presiding judge during and after the Nazi period. Their testimony carried immeasurable weight and significance, in legitimating the Nazi laws and Nazi justice on the one hand, and exonerating themselves on the other. It seemed derisory that such detail about an ‘unauthorized’ shooting had to be pursued so vigorously and meticulously despite its seeming irrelevance. How could it be that only those murders undertaken without an official order were emphasized at the Auschwitz trial? Was not the entire camp a place of murder? Why were these defendants on the stand: for murdering millions of innocent men, women, and children, or for disobeying the commands of the Nazi rulers?53

This is an embodiment of historico-moral outrage at the idea of the existence of an operating Nazi legal system and at the notion of a vital juristic distinction between lawful and unlawful killing within the Nazi camp machine. Wittmann is not alone. Bernd Naumann in his contemporary account of the trial highlighted the ways in which their West German judicial counterparts treated Nazi SS judges as equals during the trial.54 But this is little more than a consequence of combined existential, socio-legal reality, an operating rule of recognition, and prior judicial pronouncements. Morgen continued his career as a lawyer

52 Wittmann (n 6) 169. 53 ibid 174. Note also H Höhne, The Order of the Death’s Head: The Story of Hitler’s SS (London, Penguin, 2000) 383: ‘It was an absurd spectacle; one or two “unauthorised” murders of Jews were investigated – by a whole squad of SS legal experts – inside the extermination camps where thousands were being murdered daily!’. 54 Naumann (n 48) 313.

46  David Fraser after the war. He was largely untroubled by judicial proceedings that might have sought to place him as a defendant for his legal activities in the camps.55 The court charged with ­investigating Morgen and assessing his activities during the war, concluded: It could not be demonstrated that in carrying out his duties he was guilty of perversion of justice or the suppression of law (Rechtsunterdrükung). On the contrary he sought out SS men for prosecution and brought them to justice. Doing so he maintained to the utmost the ethics of a truth-seeking judge and carried out the duty of a conscientious representative of the law.56

Wittmann’s outrage and disgust do not engage with any form of careful analysis or critique. She is offended, indeed outraged, that Morgen and his fellow SS judges were treated as respected professionals, despite the clear fact that they were indeed respected jurists. But it is in her summary of the effect of the testimony of Morgen (and his fellow SS judges and lawyers) that we again find troubling evidence of a failure to engage with juridico-historical issues with any depth or concern for objective analysis. For Wittmann, Morgen’s testimony legitimated Nazi laws and Nazi justice. Unfortunately for the historian, Nazi law was legitimate as a matter of positivism, ie, the system operated as legal system even in the camps. In the rule of recognition sense, the morally and ethically informed idea of Morgen’s self-understanding and the motivations for his actions, as articulated by him and as accepted by the Spruchkammergericht after the war, clearly place his activities within the framework of legitimacy and legality. The broader context of Wittmann’s analyses, her constant and unremitting invocation of the term ‘murder’, and her dismissal of the testimony’s focus on unlawful killing as ­‘derisory’, indicate that she is attacking both the substantive validity of the arguments about the distinction between lawful and unlawful killing, and more fundamentally rejecting any notion that the camps were anything other than murder facilities. Such unarticulated presuppositions and assertions are not particularly useful (or accurate) in jurisprudential terms, nor are they likely to advance either socio-legal historical study of Nazi law, or moral analyses of the complexities of actions by officials such as Morgen caught up in the killing apparatus.57 As Devin Pendas points out, historiography itself has moved on from strict taxonomical structures to highlight the complexity of perpetrator motivations: ‘The central problem confronting the Auschwitz Trial was how to judge a unitary crime – the genocide of the Jews – on the basis of a legal system that defined crimes differently based on distinct perpetrator motives’.58 Pendas offers an insight that Wittmann chooses to underplay or dismiss as irrelevant to her moral outrage. Not only did Nazi law distinguish between lawful and unlawful killings in terms of the Hitler/Himmler order, but ordinary German law, at that time and today, distinguishes types of unlawful killings based on perpetrator motivations, with the worst crime, murder, being associated with the most aggravating mental factors, for example, blood lust (Mordlust) or cruelty (Grausamkeit). Arguments about the existence of a Hitler order, or a belief therein, or arguments about an operating distinction between lawful and 55 Gross, ‘“The Ethics of a Truth-Seeking Judge”’ (n 7). 56 Nachlass Konrad Morgen, 03, Spruchkammer der Interniertenlager Ludwigsburg, 24 June 1948, translated in Gross, ‘“The Ethics of a Truth-Seeking Judge”’ (n 7) 198. 57 H Pauer-Studer and JD Velleman, ‘Distortions of Normativity’ (2011) 14 Ethical Theory and Moral Practice 329. 58 Pendas (n 6) 296.

Criminal Law in Auschwitz  47 unlawful killings, are not merely as a continuation of normal legal discourse about homicide within German penal law, but more specifically they were attempts by the defence to demonstrate the absence of these aggravating mental factors for the accused in the­ Frankfurt Auschwitz trial. However, Wittmann is not interested in such jurisprudential niceties as the basic legality principle requiring the prosecution to prove the elements of the crime. She invokes murder, a specific technical legal term, as if it did not (or should not) have such a meaning. This is particularly troubling in a context such as this where the historian is studying and analysing a set of legal proceedings. A critical analysis might recognise that those standing accused of murder could defend themselves by invoking legal principle based on the mental element of the crime, and then offer an explicit, clearly articulated moral critique, as does Pendas, of the failings of legal discourse. Wittmann asserts a position of moral outrage by characterising Auschwitz as ‘a place of murder’, a conclusion that was precisely the point at issue in the legal proceedings. Moral outrage in the face of Nazi killings in pursuit of the Final Solution is perhaps the only ethical position one can adopt. Yet moral outrage as a tool of historical analysis is of no use whatsoever to those of us who seek to understand the place of Nazi law and Nazi lawful killing within (or outwith if one is so inclined) our legal, historical traditions. By asserting that the killings of which they were accused were considered lawful at the time, defendants attempted to exculpate themselves under extant German penal law. Given that the Frankfurt court would hardly have been willing at that time to accept the lawfulness argument, it could be the case that the defence lawyers were establishing a basis for the idea that given that their clients believed that the killings were lawful, it could not be shown that they acted with the requisite evil intentions to be found guilty of murder. These are self-evidently arguments that lawyers will see and judges will understand as legal arguments, no matter the moral outrage invoked by Wittmann. An overarching moral concern for justice for the victims leaves little room, if one is not careful in distinguishing, clarifying and articulating one’s taxonomical, ethical and semiotic presuppositions, for justice for the accused. Those on trial at Frankfurt were not ‘perpetrators’ in the eyes of the law, they were ‘alleged perpetrators’. Our basic understandings of the rule of law, the Rechtsstaat, the perversion of which is condemned by those who reject the notion of Nazi law, demand that we respect these fundamental principles of trial practice in democratic legal systems.59 Accepting the criminal state thesis and using it as a frame for understanding the camp system, or the more specific case of the jurisprudential significance of Konrad Morgen, is itself morally limited and limiting, and as an analytical tool, it is doomed to failure. Wachsmann deals with Morgen and his corruption investigations in terms that can only be described as derisory.60 Morgen was ‘an arrogant young SS jurist’, and his testimony after the war was ‘canny’, ‘self-serving, riddled with omissions and brazen lies’.61 For Wachsmann: Konrad Morgen had been a committed SS officer. During his investigation of Koch, he condoned RSHA executions, the killing of prisoners in medical experiments, and the murder of supposedly 59 D Fraser, Daviborshch’s Cart: Narrating the Holocaust in Australian War Crimes Trials (Lincoln, NE, University of Nebraska Press, 2010). 60 Wachsmann (n 19) 386–91. 61 ibid 386.

48  David Fraser sick and infectious inmates. His main aim was not to stop prisoner abuse but to root out corruption (and other cases of insubordination). In short Morgen was no champion of ordinary decency, but a crusader for Himmler’s peculiar brand of SS morality, which tried to exorcise any blemishes from the uniforms of ‘virtuous’ SS killers.62

Wachsmann uses the term ‘murder’ to describe what Morgen carefully analyses and compares in his treatment of the difference between legal and illegal killings in the camps. Wachsmann decides to ignore the distinction, and to use a legal term in a manner that is distinctly unhelpful historically for socio-legal study, and that refuses to grant any analytically valuable or relevant status to the self-understanding of Morgen the jurist. However, Wachsmann does, perhaps inadvertently, come to the questions at the core of any analysis of Konrad Morgen’s jurisprudential significance. Morgen did focus on corruption, rather than killing, at least at the beginning of his judicial investigations. He did distinguish between lawful and unlawful killings. But he did, to some extent at least, indicate that he was morally uncomfortable with the scenes of mass killing he witnessed. Whatever one makes of his different accounts of the timing of his encounters with the Final Solution, or perhaps his efforts to prosecute some of the participants therein, or the causal connections he claimed between his pursuit of wrongdoers and a slowing down of the killing of Jews,63 a key point emerges. There was an SS ethic. Anti-corruption and the killing of the Jews as an ethical set of obligations were seen to go hand in hand in Himmler’s Poznan speech and implicitly at least in Morgen’s jurisprudential taxonomy of killing in the camps. The existence of SS law as a form of natural law must be at the heart of any analysis of Nazi law in Auschwitz. The question of the role of legal positivism in his understanding of, and reliance on the Hitler/Himmler justification for the killings of Jews, raises important questions for the natural law/legal positivism divide that has informed the debate on Nazi law for far too long. None of these questions can be helpfully addressed or studied if historians like Wachsmann and Wittmann simply persist in the unremitting invocation of a semiotics of Auschwitz as a murder site.

Nazi Law, Natural Law, Positivism and the Jurisprudence of Konrad Morgen A.  The Legal Theory of the Nazi Ethos If we are to comprehend in any meaningful way the nature and role of law in the Nazi state and within the killing apparatus of the camps, we must move away from the criminal state view and begin to engage with the ways in which law was lived and invoked by Nazi legal officials like Konrad Morgen. This will mean that we begin to place the camp system within the broader juridico-policing and penal structures of the Nazi state and its criminalisation policies and practices. We can then understand the camps outside the earlier historical



62 ibid.

63 Trial

of the Major War Criminals before the International Military Tribunal, vol XX, 507–08.

Criminal Law in Auschwitz  49 paradigm as places of simple SS sadistic brutality, unlimited and unregulated except by the barbarity of the camp officials and guards.64 This does not mean that we ignore the centrality of oppression, terror, violence and indeed death in the camps, but it does mean that we must come to accept nuance, context, temporal differences and an operative set of ideologies and moral codes at the core of the Nazi state and these parts of the criminal law state apparatus.65 The broad, informing theoretical frame one might adopt is less important than the fact of adopting an intellectual perspective that takes Nazism, Nazi ideology and eventually Nazi law seriously as sites for socio-legal jurisprudential and historical engagement. The Nazis sought to revive law, to superimpose perhaps, a natural law theory based on the wisdom of the Volk, given life by the embodied juridical Fürherprinzip (leader principle), and a system of legal professionals giving concrete expression to these moral­ imperatives.66 Nazi lawyers and judges, and lawyers and judges within Nazi Germany, embodied these moral, political and jurisprudential principles as part of their daily ­existence.67 As a member of the SS legal system, Morgen adopted both the broad Nazi ideology and natural law perspective, and the more specific ethos of the SS as the elite embodiment of the highest values of rectitude and honesty. Dismissing Morgen’s legal life as a cunning lie, that ignored murder to seek out lower crimes of dishonesty, is to reject the existential, psychological and juridical framework of that life and of the broader systems of Nazi and SS law, which operated as a positive legal, historical reality. Truly useful socio-legal historical and legal philosophical insights can only be derived if we in fact take Nazi law, SS law and Konrad Morgen’s jurisprudence, seriously. That a legal system operated in Germany from 1933 to 1945 seems, as a historical matter, to be indisputable. That an SS legal system operated appears from the record of Konrad Morgen’s life, his interrogation statements and the affidavits produced and the testimony he offered at the IMT,68 and the Frankfurt Auschwitz trial, and from the testimony of several other jurists at these and other trials. SS men were prosecuted for corruption and unlawful killings.69 Remaining SS judicial records confirm Morgen’s investigations of corruption and murder.70 Even more significant for historical and jurisprudential enquiry is the fact that Morgen operated under an existing taxonomical structure as a jurist in which there was a functioning and binding juristic distinction between legal and illegal killing within the SS camp structure, including Auschwitz.

64 Kogon (n 42). 65 T Vormbaum, A Modern History of German Criminal Law (Berlin, Springer, 2014) 172–208. 66 J Chapoutot, La loi du sang: Penser et agir en Nazi (Paris, Gallimard, 2014). 67 KA Schleunes (ed), Legislating the Holocaust: The Bernhard Loesener Memoirs and Supporting Documents (Boulder, CO, Westview, 2001). 68 Affidavit SS-65, 13 July 1946, by Dr Konrad Morgen; Affidavit SS-67, 19 July 1946, Trial of the Major War Criminals before the International Military Tribunal, vol XLII, ‘Documents and Other Materials in Evidence’ 551, 563. 69 D de Mildt, ‘Getting Away with Murder’ in N Stoltzfus and H Friedlander (eds), Nazi Crimes and the Law (Cambridge, Cambridge University Press, 2016); AM de Zayas, The Wehrmacht War Crimes Bureau, 1939–1945 (Lincoln, NE, University of Nebraska Press, 1989). 70 Wesentliches Ermittlungsergebnis. Der Korruptionskomplex A. SS-Standartenfuehrer Koch; Excerpts from ‘Indictment against SS-Staf. Koch and Dr Hoven, Buchenwald, as used in their trial before an SS-court’ (NO-2366). These and other documents can be consulted at the Harvard Law School Nuremberg Trials project, available at: nuremberg.law.harvard.edu/php/docs_swi.php?DI=1&text=doc_anal.

50  David Fraser For Morgen, euthanasia killings were legal since there was a Hitler order authorising the procedures. Likewise, the Final Solution of the Jewish Question, the Shoah, was legally permitted by a set of commands from the Führer and from his delegate Himmler. These deaths were not subject to prosecution or condemnation for murder or manslaughter since they were at their core legal. Killings of prisoners for personal reasons, out of simple cruelty, or to cover up massive corruption in the camps, on the other hand, were not covered by the Hitler orders, and were illegal. They betrayed a core moral corruption even worse than the material venality they were meant to mask within the SS juridical ethos pursued by Morgen. Morgen prosecuted unlawful killings, but could do nothing about those deaths that occurred within the operating legal order of the Nazi state. Pauer-Studer and Velleman write: Morgen was often called upon in postwar testimony to explain what was legal and what was illegal in the Nazi state. The interrogators and judges were often appalled by Morgen’s answers, because he contended that killing was legal if ordered from the top. But Morgen portrayed himself as a judge sworn to apply the law as he found it. He insisted that killing on higher orders – even mass murder, if ordered – had been legal in the Third Reich.71

Pauer-Studer and Velleman point out that there is an apparent contradiction, or legal philosophical confusion, in the position adopted by Morgen in applying his legal/illegal taxonomy. His reliance on the Fürherprinzip is grounded in a simple legal positivism. The law is the law of the sovereign authority. On the other hand, the basis of Nazi jurisprudence, with its appeal to broader principles of the wisdom and interests of the Volk, permitting, or even commanding, Nazi judges to go beyond the written text of a statute, to search for a more fundamental and foundational principle, outside strict textual limits, more clearly resonates with an understanding of legal philosophy grounded in natural law.72 Gross asserts that a deeper philosophically oriented and critical historical enquiry into the nature of Nazism (and the Nazi state) is required: I think here it is important to understand National Socialism not as a system beyond morality but as a movement which made a great effort to implement a system of moral feelings which were shared and, indeed, mutually exactable.73

The idea that Morgen was singularly focused on illegality, narrowly defined, and that ‘(h)is moral sentiments were strong but their range was narrow’, should hardly come as a surprise from the legal theoretical perspective.74 The issue of lawful and unlawful killings at the heart of the state apparatus of the Final Solution brings to the forefront the vital socio-legal historical and jurisprudential stakes that emerge from a study of Konrad Morgen and his judicial activities. For the SS elite, the task of killing Jews was one that was morally incumbent upon them as servants and protectors of the Reich. This was a difficult and onerous task, but one that had to be carried out with the highest standards of ethical behaviour. Not one Mark, not a single fur or cigarette, were to be taken from the Jews who had been massacred. 71 Pauer-Studer and Velleman, Konrad Morgen (n 8) 72. 72 ibid 73. 73 Gross, ‘“The Ethics of a Truth-Seeking Judge”’ (n 7) 206; R Gross, ‘Guilt, Shame, Anger, Indignation: Nazi Law and Nazi Morals’ in AE Steinweis and RD Rachlin (eds), The Law in Nazi Germany: Ideology, Opportunism, and the Perversion of Justice (Oxford, Berghahn Books, 2015) 89; and Gross, Anständig geblieben: Nationalsozialistische Moral (n 25). 74 Pauer-Studer and Velleman, Konrad Morgen (n 8) 122.

Criminal Law in Auschwitz  51 A focus on a Nazi theoretical framework, on the internal point of view, allows us to understand the operating distinction espoused by Morgen between legal and illegal killings, to comprehend that from this perspective, the Final Solution was not murder, while at the same time maintaining an ethical and moral position that will permit us to reject the horror of the Shoah. Within that frame, the apparent contradictions between natural law and crude positivism as espoused by Morgen and others emerge, but the more central enquiry must always be focused on Nazi law as law. In the Anglo-American jurisprudence, for example, a crude Austinian would assert that Nazi law was indeed ‘law properly so-called’ because it involved a set of orders or commands from the sovereign, an effective mechanism by which these commands were enforced, and a general populace that accepted these normative provisions through a ‘habit of obedience’.75 Likewise, the view advocated by HLA Hart, operating on the separability thesis between law and morality, and referring only to the secondary rule of recognition by legal professionals and the internal point of view to determine the validity of legal norms, would clearly allow us to accept the notion that Nazi law, including principles that distinguished between lawful and unlawful killing, as enunciated by Morgen, and highlighted by Pauer-Studer and ­Velleman, was indeed law.76 If one were to choose a European version of legal positivism as the appropriate theoretical framework, the result would be exactly the same. Hans Kelsen pointed out that the difference between a state-sanctioned killing and murder, between legal and illegal, is a normative question decided according to the operating and existing framework of validity.77 For Kelsen: The problem of law, as a scientific problem, is the problem of social technique, not a problem of morals. The statement: ‘A certain social order has the character of law, is a legal order’, does not imply the moral judgment that this order is good or just. There are legal orders which are, from a certain point of view, unjust. Law and justice are two different concepts. Law as distinguished from justice is positive law.78

The command of a bank robber and the command of the tax office to pay a given sum are distinguished not by the idea of command, but by the idea and ideal of validity, of a Kantian ought. While it may ultimately be a near impossible task to determine the source of the valid norm in Kelsenian jurisprudence without reference to a theoretical a priori Grundnorm (a foundational or basic norm), which itself may be based in a confused and incomplete understanding of sovereignty,79 it seems clear that from a Kelsenian positivist perspective, the Nazi state and its legal system, including the distinction between legal and illegal killing, even at the heart of the Shoah and the Nazi extermination machine, can only be understood as law.

75 J Austin, The Province of Jurisprudence Determined (London, John Murray, 1832). 76 HLA Hart, The Concept of Law, 3rd edn (Oxford, Oxford University Press, 2012). 77 H Kelsen, Pure Theory of Law (Berkeley, University of California Press, 1967) 4. 78 H Kelsen, General Theory of Law and the State (Cambridge, MA, Harvard University Press, 1945) 5. 79 D Dyzenhaus, ‘Kelsen, Heller, and Schmitt: Paradigms of Sovereignty Thought’ (2015) 16 Theoretical Inquiries in Law 337.

52  David Fraser The idea that legal positivism was somehow responsible for the Holocaust has long since been refuted both historically and jurisprudentially.80 As all legal positivists make clear, the question of a law’s validity, and the issues of the justice or morality of that law, are separate and distinct. Obedience to an unjust law, one’s moral sense of obligation etc, are not issues that are removed from any deeper equation, beyond the technical issue of whether one attaches the label ‘law’, ie, the validity question for both Hart and Kelsen. Moral action is in no way determined by adopting a position informed by legal positivism unless and until much deeper questions of obligation, coercion, choice etc have been addressed and articulated. Also, as those such as Pauer-Studer and Velleman, and Gross, who have examined in careful detail the judicial and jurisprudential biographies of Konrad Morgen, have pointed out, albeit perhaps from different disciplinary and philosophical perspectives, and despite apparent discrepancies and contradictions in Morgen’s own explanations, legal positivism does not explain Nazi law on its own terms. Nazi law, and Nazi law as understood by SS Judge Konrad Morgen, including his assertions about legal and illegal killings in the camps, was morally infused and can be and was only understood, in natural law terms. Nazi law was morally charged. It sought at every instance to invoke and deploy an overarching ideology of the will, wisdom and interests of the Volk. In the instantiation of Nazi law in distinguishing between lawful and unlawful killings, the overarching normativity of the Nazi state and Reich law is evident. Confusion arises, perhaps, as Pauer-Studer and Velleman argue, from Morgen’s insistence on relying on the Führerbefehl (an order or directive from the Führer) to explain the placement of the different cases into one or other of the operative categories. Yet even a natural law system must rely, even if only at the descriptive level, on positive normativity at some stage. A decision must be made, a taxonomical choice indicated. Doubts might remain about whether Morgen was relying on positivism within a natural law world and contradicting himself in a fundamental way, or whether he was simply offering a description of the positive legal content of a normative, natural law order, two philosophically and jurisprudentially different techniques. In SS judge Konrad Morgen’s judicial self-understanding, the killing of Jews in the Final Solution was perfectly legal. The real question for current socio-legal historical and jurisprudential enquiry raised by the case of Konrad Morgen is where legal theory can go in its attempts to combat this inevitable conclusion that natural law itself was the framework in which the Jewish ‘bacillus’ was eliminated as a matter of ethical obligation by SS men and women operating within a legally and morally unified world at the heart of the Nazi killing machine.

B.  Dworkin and the Legality of the Shoah While it is true that Konrad Morgen was a judge in the continental tradition of an investigating magistrate, a broader judicial ethos did inform his career so that the more general ideas about judging that emerge from Ronald Dworkin’s work may be of some 80 U Reifner, ‘The Bar in the Third Reich: Anti-Semitism and the Decline of Liberal Advocacy’ (1986) 32 McGill Law Journal 96; compare P Caldwell, ‘Legal Positivism and Weimar Democracy’ (1994) 39 American Journal of Jurisprudence 273; VG Curran, ‘Fear of Formalism: Indications from the Fascist Period in France and Germany of Judicial Methodology’s Impact on Substantive Law’ (2001–02) 35 Cornell International Law Journal 101.

Criminal Law in Auschwitz  53 value in discussing central issues of Nazi law, especially in an Anglo-American context. The second reason Dworkin’s work is important, and fits in the discussion of Nazi law as embodied in the career of Konrad Morgen, is that much of the most important scholarship, again in the Anglo-American traditions of jurisprudence, has been situated in the context of adjudication under the paradigmatic formula of hard cases.81 In his last major work, Dworkin wrote that the problem of evil law is one ‘of almost no practical importance’.82 This comment might be attributed to Dworkin’s deeply embedded belief in American liberalism as transcendent, or in an ignorance of contemporary operating legal systems in other parts of the world, or to a position that, despite Dworkin’s insistence on the place of legal history in proper adjudication, places history outside the domain of jurisprudence. Dworkin does turn to the question in relation to the well-known American example of the Fugitive Slave Act. The answer to the dilemma of what judges in non-slave states should do when faced with an evil law compelling them to return slaves to their owners almost disappears for Dworkin. He defines law as a particular version of political morality, the defining character of which is that law entails the right to a judicial decision, and in decision-making, principled reference must always be to foundational principles. Dworkin argues for a vital distinction between prudential and moral claims. The latter clearly constitute part of law as an aspect of political morality, of rights, and the former involve more crudely existential assertions. In the case of the judge who is morally offended by the idea that the Fugitive Slave Act might afford a slave owner the right to the return of his property, Dworkin fudges his response. Under the law of slavery, chattel rights could be asserted by the slaveholder. As legally cognisable claims, they carried by definition the character of morality. These rights would be, for the Dworkinian judge, trumped by a moral emergency grounded in appeal to some (unarticulated by Dworkin) overarching foundational legal principles.83 For Dworkin, this allows for the expression of legal and philosophical nuance, theoretically recognising the legal rights of slave owners (and avoiding the evil law dilemma), but at the same time permitting adjudication to arrive at a morally correct, legally sustainable, solution. But Dworkin simply gilds the jurisprudential lily. He prefers not to invoke the Unrecht idea of a law so morally offensive that a judge could only use the ‘not law’ idea to dismiss the slave owner’s claim before it started. For Dworkin, the law so unjust it is not a law argument can be invoked only in a clear case where there is no possible moral, and therefore legal, claim to be found. Slavery did not meet this test: The hideous Nazi edicts did not create even prima facie or arguable rights or duties. The purported Nazi government was fully illegitimate, and no other structuring principles of fairness argued for enforcement of those edicts. It is morally more accurate to deny that these edicts were law. The German judges asked to enforced (sic) them faced only prudential dilemmas, not moral ones.84

81 D Dyzenhaus, Hard Cases in Wicked Legal Systems, 2nd edn (Oxford, Oxford University Press, 2010); and HP Graver, Judges Against Justice: On Judges When the Rule of Law is Under Attack (Berlin, Springer, 2015). 82 R Dworkin, Justice for Hedgehogs (Cambridge, MA, Harvard University Press, 2011) 410. 83 ibid 411. 84 ibid. Dworkin moves somewhat from a more nuanced semantic jurisprudential discussion in his earlier work. See R Dworkin, Law’s Empire (Oxford, Hart Publishing, 1998) 102–04, but this is quickly followed, in his treatment of the hypothetical Judge Siegfried faced with anti-Jewish Nazi legal normativity and his rejection of the validity and basic importance for legal theory of issues of wicked legal systems, to the position he maintained until his death, 105–08.

54  David Fraser Dworkin is so wrong here, for so many reasons, at so many levels, that it is impossible to do justice to the critique he deserves. Historically, it is inaccurate and existentially inconceivable to assert that German judges, once the early objectors were removed, or removed themselves, faced any kind of dilemma at all.85 They accepted and indeed often transcended the limits of the normative content of laws, regulations, and decrees as they fulfilled their duty to the Volk. We need further and deeper examinations of Dworkin’s position to understand exactly what he means by ‘hideous’ Nazi edicts, but it is prima facie difficult to see why the Law for the Protection of German Blood and Honour is so much more hideous than the anti-miscegenation laws that accompanied slavery and post-slavery society in the United States, to such an extent that the former is ‘not law’, while the latter can be claimed to embody a morally cognisable legal claim. It is impossible to identify any historically accurate and morally persuasive distinction Dworkin finds in the Reich Citizenship Law and its subsequent enforcing regulatory decrees86 (not law) and the legal regime permitting white Americans to own African Americans under an enforceable, morally cognisable system of chattel slavery, the juridical roots of which were profoundly European.87 When exactly, for Dworkin, is an edict hideous? Similar problems, too complex to deal with in detail, arise in relation to his bald claim that the Nazi state was ‘fully illegitimate’. In the absence of a theory of constitutional law and change, of revolution if there was one, or of an articulated idea of sovereignty and legitimacy, in either domestic or international law, Dworkin’s claim is nothing more than a morally infused declaration of illegitimacy grounded in some apparent foundational, or perhaps self-evident, but almost certainly ex post facto, rejection of the idea of Nazi legality, or even legitimacy, with nothing to back it up. It is clear that other nation states continued to recognise the Nazi regime as the lawful and sovereign government of Germany after 1933. Courts in the United States and in the United Kingdom granted ‘full faith and credit’ to German law during much of the Nazi regime, and sometimes afterwards, just as European jurisdictions allowed the legal enforcement under private international norms of Nazi anti-Jewish laws.88 Dworkin’s assertion of the illegitimacy of the German state between 1933 and 1945 is both historically and jurisprudentially unsustainable.89 Turning to the idea of structuring principles of fairness, Dworkin’s lack of theoretical and historical substance becomes clearer. Dworkin develops the argument throughout Justice for Hedgehogs that core concepts of fairness and dignity are the very embodiment of the central idea of law as a particular institutional and normative manifestation of political morality, ideas that informed his entire jurisprudential project. Unfortunately, as with most other natural law claims, an argument about fundamental structures of fairness and dignity in this context is quickly revealed as nothing but a descriptive and prescriptive account of a particular liberal, democratic ideal of law, rather than a scientific, determinable and therefore universally applicable test. Like John Finnis’s set of principles for human flourishing,90 85 M Stolleis, ‘Law and Lawyers Preparing the Holocaust’ (2007) 3 Annual Review of Law and Social Science 213. 86 ‘Reich Citizenship Law, September 15, 1935’ in Y Arad, I Gutman and A Margaliot (eds), Documents on the Holocaust (Lincoln, NE, University of Nebraska Press and Yad Vashem, 1999). 87 A Watson, Slave Law in the Americas (Athens, GA, University of Georgia Press, 1990). 88 D Fraser, ‘“This is Not Like Any Other Legal Question”: A Brief History of Nazi Law before UK and US Courts’ (2003) 19 Connecticut Journal of International Law 59. 89 D Fraser and F Caestecker, ‘The Extraterritorial Application of the Nuremberg Laws: Rassenschande and “Mixed” Marriages in European Liberal Democracies’ (2008) 10 Journal of the History of International Law 35. 90 J Finnis, Natural Law and Natural Rights (Oxford, Oxford University Press, 1980).

Criminal Law in Auschwitz  55 or Lon Fuller’s notion of a core form of law and legality to which a system must conform to be called law,91 the universality of Dworkin’s ‘structuring principles of fairness’ is quickly called into question and is revealed as a barely disguised American liberal teleology of law. Dworkin is most clearly trumped when we ask what structuring principles of fairness applied to slavery, which he recognises as presumptively lawful in America. No doubt there was a system of fairness in contractual disputes between slave owners over the negotiated value of a particular chattel, or in relation to succession issues concerning the division of the owner’s property upon death, but this had little to do with systemic fairness or core values of dignity for the enslaved. Yet Dworkin is willing to grant slave era American legality the benefit of the label of ‘law’ and the owner’s claim moral, legal standing. Throughout the judicial career of Konrad Morgen, basic ideas of honour, honesty, integrity and above all the unity of moral and legal duty, informed the SS legal system even in the Auschwitz death camp. Nazi law was imbued with an overarching structure of fairness in its core value of promoting and protecting the Volksgemeinschaft. Dworkin’s theory, his idea of the unity of law and morality, is of no real use, both because it is philosophically unpersuasive and because on its own terms it is historically inaccurate and jurisprudentially unjustifiable. Just as Wittmann’s and Wachsmann’s crude invocation of the signifier murder is intellectually and jurisprudentially lazy and disingenuous in the context of discussions of Nazi law, Dworkin’s assertion of the illegitimacy of the Nazi state or the apparently universally hideous nature of Nazi edicts is not just unhelpful, it is counterproductive. Morgen and his fellow SS judges firmly believed that a system of law, embedded with strict moral strictures about honesty, integrity and ethical behaviour, governed life in the concentration camp system. By adhering to the norms of such a legal system, embodied in the SS ethos and in the overarching ideals of the Fürherprinzip and the duty to the ­Volksgemeinschaft to which SS judges had sworn their loyalty, Konrad Morgen could hunt down and exterminate corruption while at the same time (with whatever caveats) operate a clear distinction between legal and illegal killings within the camp system. Morgen’s focus was clearly on the acts and activities of camp officials, of SS men. He was unconcerned with Jews within the camps, except in so far as they might have been the victims of unlawful ­killings. For him, the Final Solution was lawful. There was an operating normative legal system within the camps, and at Auschwitz in particular, according to which the mass extermination of Jews was perfectly legal.

Conclusion The legal historical and philosophical story of Konrad Morgen, the morally upright and ethically limited SS judge, serves as a useful fulcrum and even as an occasional c­ ounterpoint when thinking about the nature and role of law within the Nazi state. Legal positivism allows us to contemplate the operation of a legal system within the Nazi structure without any need to confront the moral and ethical dilemmas arising from a death-dealing legality. That does not immunise us from moral or ethico-political judgement and action since 91 LL Fuller, The Morality of Law, rev edn (New Haven, CT, Yale University Press, 1969); K Rundle, Forms ­Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Oxford, Hart Publishing, 2012).

56  David Fraser it merely answers a basic, and perhaps ultimately uninteresting, question about the validity of a set of norms, general and individual, both affirming the life of the Volk and the death of the Jews. The task before us is not to save law, from itself or from others. It is to be honest in confronting the implication of the discipline in the Nazi attempt to create their utopian vision of a Judenrein European juridical space. The point of looking at the life and legal philosophy of Konrad Morgen is not, as James Weingartner urges, to discover some form of ‘pre-totalitarian’ legality from Morgen’s corruption prosecutions with which to offer a more optimistic understanding of the inherent possibilities for a return to the liberal Rechtsstaat even in the darkest days of the Hitler regime.92 The real issue for socio-legal historical and philosophical enquiry is how, or indeed, whether, as a discipline we might proceed to a further investigation and critique of the normative world of Konrad Morgen and Nazi law, of lawful and unlawful killing. Morgen embodied the centrality of a moral vision within Nazi theory and legal practice. There is an urgent need for legal enquiry into what Gross characterises as ‘the background of a moral history which still needs to be written’.93 That history must examine the question not just of Nazi law, but of the continuities between Nazi law and the law that preceded it, as well as the legal system that succeeded it in Germany (and in other jurisdictions). We cannot engage in the practice of writing this history if we operate under a system of radical caesura at whatever historical juncture of the Nazi regime, because we cannot write such a moral history without directly confronting the core idea of Morgen’s existence as an SS judge, the legal killings of the Final Solution. We can only begin the task of writing a convincing legal history of the Shoah at the moment we start to accept the idea that ‘the Holocaust is not the result of absolute evil but of an ethic that conceives good and evil in different terms’.94 That redefined ethical universe was constructed and concretised by law and by lawyers. Konrad Morgen was not a perfect lawyer or judge, nor was he a perfect moral being, but he did embody a sense of morality and legality that permitted him to construct and maintain throughout his life a clear separation between legal and illegal killing at Auschwitz. His failings, according to Pauer-Studer and Velleman, can be traced in part at least to his uncritical acceptance of ‘distorted characterisations’, in relation to the death apparatus he encountered in the camps.95 Historically and jurisprudentially we might be better off remembering that the distortions themselves were juridically constructed categories within his life world and practice as a German jurist. When a moral set of claims becomes embodied in a legal system such as that which operated in Germany and elsewhere in Europe between 1933 and 1945, morality’s essential critical function becomes lost.96 A critical socio-legal history of Konrad Morgen’s jurisprudential story may lead us beyond positivism because positivism is only a somewhat insignificant first step. It does not, nor can it, provide us with a basis upon which to ground moral or ethical critiques of

92 J Weingartner, ‘Law and Justice in the Nazi SS: The Case of Konrad Morgen’ (1983) 16 Central European History 276. 93 Gross, ‘“The Ethics of a Truth-Seeking Judge”’ (n 7) 207. 94 PJ Haas, Morality After Auschwitz: The Radical Challenge of the Nazi Ethic (Eugene, OR, Wipf & Stock, 2014) 179. 95 Pauer-Studer and Velleman, Konrad Morgen (n 8) 125. 96 ibid 127.

Criminal Law in Auschwitz  57 Morgen, Nazi law, or any substantive legal norm.97 Morgen’s case, the jurisprudential reality of lawful killings in Auschwitz, simply confirms the adage ‘law is politics’. The sooner we realise that our academic endeavours in dealing with the horrible reality of the legality of the Nazi killing machine demand of us moral, political choices and argument, the better off we will be. We must, as Michael Stolleis has long asserted, have the courage to look into the mirror at the reflected reality and jurisprudential truths of Nazi law: Today, there is no succinct and comprehensive history of science linking the history of mentalities, ideas and institutions. For this reason, we have to form our image from the histories of private law, constitutional law and penal law. One particular area that requires greater scholarly attention is the history of penal law and philosophy of law.98

The case of Konrad Morgen highlights the need for a critical socio-legal history of the ‘mentalities, ideas, and institutions’ of the Nazi killing machine. Law will not save us, or anyone else. Nor will it condemn us. Only our failure or refusal to become engaged in moral, political and ethical struggle about the historical truth of our disciplinary practices can and will lead us to damnation.

97 Compare H Pauer-Studer, ‘Kelsen’s Legal Positivism and the Challenge of Nazi Law’ in MC Galavotti et al (eds), European Philosophy of Science – Philosophy of Science in Europe and the Viennese Heritage (2014) 17 ­Viennese Circle Institute Yearbook 223. 98 M Stolleis, ‘Prologue: Reluctance to Glance in the Mirror. The Changing Face of German Jurisprudence After 1933 and Post-1945’ in C Joerges and N Singh Ghaleigh (eds), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Legal Traditions (Oxford, Hart Publishing, 2003) 17.

58

3 Nazi Law as Non-law in Academic Discourse SIMON LAVIS

Introduction: Non-law and the Third Reich The purpose of this collection is to reflect more deeply on the ideology – the ideas, beliefs and political principles – that shaped the criminal law of fascist and authoritarian regimes. One of the premises underpinning the existence of this collection, therefore, must be that such regimes – including Nazi Germany – had a criminal law, and a legal system more generally; something we can identify and signify as ‘law’ in order to examine and evaluate it historically and jurisprudentially in terms of its operation and interconnection with state ideology. In the case of Nazi Germany, however, this very premise is disputed by decades of post-war English language historiography and jurisprudence, in which the systemic understanding and interpretation of Nazi law is largely informed by the idea, not that it had a criminal law, but that it was a criminal state, and therefore a lawless one.1 The idea of Nazi law as a criminal state finds its conceptual underpinning in the ‘rupture thesis’, that ‘the Nazi state is said to be a state so brutal, so criminal, so perverted, that it constitutes a radical, atavistic rupture in the otherwise largely benign process of law and politics, at least in the West’.2 With regard to the legal system, these ideas of a chronological and philosophical break manifest themselves in the representation of Nazi law as ‘non-law’; of the governance of the Third Reich as one conducted through arbitrariness, violence, terror, barbarity and criminality, as opposed to through law. According to this interpretation, the rupture in question is between Nazi rule and the very concept of law itself: the Nazi regime was not a lawful or ‘law-full’ (full of law) regime,3 but a lawless one (both arbitrary and lacking in law). The roots of this interpretation of the regime and its legal system, as well as where and why it is embedded in various academic discourses, have occasionally been noted, but not

1 See D Fraser, ‘Evil Law, Evil Lawyers? From the Justice Case to the Torture Memos’ (2012) 3(2) Jurisprudence 391; C Wilke, ‘Reconsecrating the Temple of Justice: Invocations of Civilization and Humanity in the Nuremberg Justice Case’ (2009) 24 Canadian Journal of Law and Society 181. 2 F DeCoste, ‘Hitler’s Conscience, Redemptive Political Emotions, and the Politics of Fear’ (2012) 3 Passions in Context 1, 6–7. See also D Fraser, Law After Auschwitz: Towards a Jurisprudence of the Holocaust (Durham NC, Carolina Academic Press, 2005). 3 Fraser, Law After Auschwitz (n 2).

60  Simon Lavis entirely elucidated. Equally, the implications of this approach are not always fully assessed. As long as a prevailing interpretation continues to view Nazi law as non-law there is little need for jurisprudential and legal historical consideration of the Nazi regime as a legal system (because it did not have a legal system); historical comparison with the legal regimes in other fascist and authoritarian regimes (because of its purported sui generis nature as non-law); or more general comparisons with democratic, liberal legal orders past and present in order to understand the points of continuity and difference between them. Nor, crucially, to the extent that that interpretation is accepted, is it necessary to examine the process of transformation from one sort of regime to the other (because the rupture thesis implies only absolute difference). This chapter is focused on exploring and interrogating key elements of the interpretation of Nazi law as non-law that has been constructed in English language scholarship, in order to establish how that interpretation has become an important narrative of Nazi law, and what its consequences are for understanding law in the Third Reich and the concept of law in general from the perspective of that body of research and reflection. The chapter focuses on English language scholarship about Nazi law, including translated literature, for two reasons. One is that a great deal of research into the Third Reich is carried out within the Anglo-American historical academy in English and yet studies of the Nazi legal system in English are not common, and this fact is considered to merit further attention. The second is that the dominant approaches of the Anglo-American legal and historical academies’ discourses around the concept of law and its manifestation (or not) in Nazi Germany have followed their own distinct path, despite some cross-fertilisation with related continental discourses, and so are worthy of separate evaluation. Translated texts have influenced and continue to influence these discourses, so need to be incorporated into the discussion. On that basis the chapter makes two related arguments. First, that the predominant approach of legal and historical work produced and available in English in the decades since the collapse of Nazi Germany has consistently characterised its legal system as non-law, and as reflecting a period of rupture from normal legal-historical development. Second, that this characterisation has meant that such approaches have prevented a full coming to terms with the legal system in Nazi Germany, and a comprehensive examination of the systemic nature of Nazi law. This chapter thus focuses on the construction of a discursive position and how it omits and precludes engagement with Nazi law, rather than addressing the nature of that law itself; that is, the chapter emphasises the need for such engagement and establishes rationales to support it. However, before turning to this discussion, it is essential to note that nothing in this chapter should be taken as an endorsement of Nazi law or ideology, nor should it be considered that ‘Nazi law’, ‘Nazi ideology’ or ‘Nazi legal theory’ are settled and agreed terms. There is disagreement about what constitutes Nazi law, and Nazi ideology and legal philosophy were to varying degrees lacking in coherence and full of disparate and sometimes contradictory ideas, such that both are very difficult to identify or define accurately. It is, in part, because of these complexities that it is important to reflect critically on how the Nazi legal system and its underlying principles have been examined in academic discourse, so as to identify where they need closer theoretical and empirical analysis. In order to make these arguments, this chapter examines some of the key points of discursive construction of Nazi law as non-law in English language legal and historical

Nazi Law as Non-law in Academic Discourse  61 ­ riting, both in the past and in recent years, demonstrating both the academic r­ eproduction w of that thesis over time and its continuing acceptance. Therefore, in the next section it will consider the academic genesis of the Nazi law as non-law thesis for both historiography and jurisprudence, first in the in-war seminal studies of the Nazi state by Ernst ­Fraenkel and Franz Neumann (in their influential English translations), and second in the 1958 Hart–Fuller debate. It will then examine some more recent academic writing to illustrate the continuing reproduction of this narrative in current English language discourse. The final section reflects on the implications of this analysis for the study of Nazi law.

Constructing the Rupture Thesis: The Genesis of Nazi Law as Non-law It is accepted by those now writing about Nazi law that it has generally been viewed as an aberration from normal legal development, in the same way that the Third Reich in general, and particularly the Holocaust, were for a long time viewed as aberrations from normal historical development, because of their extreme and allegedly unique nature.4 However, the enduring influence of the non-law narrative, together with a normative imperative to focus on points of difference when considering something as abhorrent as the Nazi regime, mean that the currents of the rupture thesis run deep in academic writing and remain strong today. German historian Thomas Vormbaum noted in 2014 that ‘[t]he agreed-on version in general historiography seems to be: the twelve years of National Socialist rule are twelve dark years that represent a rupture in German history’.5 Similarly, in 2013 Alan Steinweis and Robert Rachlin observed that ‘[a] book about the law in Nazi Germany might strike some readers as an exercise in contradiction’.6 Finally, Kristen Rundle stated in 2006 that ‘[w]e are simply told (for whatever reason) that Nazi law was “not law” or, as was proclaimed at Nuremberg, it was “criminal”’.7 The fact that these comments come from historians, lawyers and legal theorists demonstrates the range of disciplinary concern and interest generated by the subject of Nazi law. It also gives some insight into the breadth and depth of influence that both the ‘validity question’ – the question of whether Nazi law was valid law – and the particular claim that it was not law have had on English language academic engagement with the Third Reich. The academic construction of Nazi law as non-law can be traced through key moments of discursive development and is ostensible in influential academic works in both jurisprudence and historiography. In order to understand the nature and enduring influence of the rupture thesis, and to lay a foundation for incorporating Nazi law in a comparative framework with other anti-democratic and authoritarian  regimes,

4 See the historiographical discussions in I Kershaw, The Nazi Dictatorship: Problems and Perspectives of ­Interpretation, 4th edn (London, Arnold, 2000); and D Stone, Histories of the Holocaust (Oxford, Oxford University Press, 2010). 5 T Vormbaum, A Modern History of German Criminal Law (Berlin, Springer, 2014) 172. 6 A Steinweis and R Rachlin (eds), The Law in Nazi Germany: Ideology, Opportunism, and the Perversion of Justice (New York, Berghahn Books, 2013) 1–2. 7 K Rundle, ‘Review of Law After Auschwitz: Towards a Jurisprudence of the Holocaust by David Fraser (2005)’ (2006) 28 Sydney Law Review 197.

62  Simon Lavis as well as within discussions about the concept of law generally, it is important to identify and scrutinise those key moments of development that constructed the paradigm of Nazi law as non-law. There are three early stages in the narrative of Nazi law as non-law, which became the rupture thesis, which are (in chronological order): the 1940s publication of two important structural studies of the Nazi state; the post-war Nuremberg Trials – both the more famous International Military Tribunal (IMT) and the subsequent 12 Nuremberg Military Tribunals (NMT); and the 1958 Hart–Fuller debate. As it is focused on academic discourse, and because of other relevant writing about the Nuremberg Trials,8 this chapter will focus on examining the other two discursive moments in some detail.

A.  Non-law in the Behemoth and the Dual State The 1940s writing of Ernst Fraenkel and, in particular, Franz Neumann had an i­mportant influence on how the Third Reich was framed and the proceedings structured at the NMT,9 and in the adoption of ‘non-law’ as a central concept for evaluating and interpreting the legal system within the Third Reich.10 The competing paradigms of the Nazi state offered by Fraenkel and Neumann were also very influential in decades of post-war historical research into Nazi Germany, and remain so today.11 They both, in different ways, offer a vision of Nazi governance in which non-law has been seen to play an important role. Neumann’s Behemoth presents the clearest example of this, as it denied the existence of a legal system in the Third Reich at all, ‘[s]ince we believe National Socialism is – or tending to become – a non-state, a chaos, a rule of lawlessness and anarchy’.12 It is clear from the pages Neumann devotes to the Nazi legal system in Behemoth,13 that he does not consider that a system of government that is ‘merely the will of the ­sovereign’,14 ‘nothing but a technique of mass manipulation by terror’,15 and only ‘a means for the ­stabilization of power’16 can be considered law at all. He argues that there are a number of features of Nazi law that make it non-law, chief among which is the absence of two inherent legal characteristics: abstractness and the independence of the judiciary.17 The legal standard of conduct18 under Nazism is very vague, enabling the introduction of political considerations into legal interpretation and adjudication in order to change the meaning of

8 eg, Wilke (n 1); Fraser, ‘Evil Law, Evil Lawyers?’ (n 1); K Priemel and A Stiller (eds), Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography (New York, Berghahn Books, 2012). 9 Priemel and Stiller (n 8) 6–7. 10 E Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (New York, Octagon Books, 1969 [1942]); F Neumann, Behemoth: The Structure and Practice of National Socialism 1933–1944, 2nd edn (London, Frank Cass & Co, 1967). 11 eg, R Hilberg, ‘The Relevance of Behemoth Today’ (2003) 10 Constellations 256. 12 Neumann (n 10) vii, ‘Note on the name Behemoth’. 13 ibid 440–58. 14 ibid 458. 15 ibid. 16 ibid 447–48. 17 ibid 444. 18 By ‘legal standard of conduct’, Neumann is referring to general legal principles as opposed to specific legal rules: ibid 441.

Nazi Law as Non-law in Academic Discourse  63 the positive law.19 This results in Nazi legality becoming no more than ‘a technical means for the achievement of specific political aims’ and losing the ‘specific character of law’.20 The specific character of law that Neumann argues is absent from Nazi law is reason. In his view therefore law goes beyond positivistic notions of its technical status as a rule or the command of the sovereign. While he acknowledges that any number of ‘technical rules’ continued to exist in Nazi Germany, these do not constitute law as he is referring to it.21 Instead, law must be ‘comprehensible by reason, open to theoretical understanding, and containing an ethical postulate, primarily that of equality. Law is reason and will’.22 The idea of law as reason is absent in the Third Reich because of a combination of the apparent arbitrariness of Nazi law, according to which ‘[e]very rule was at the disposition of the Führer’s will’,23 and the replacement of rational and calculable liberal standards of conduct with irrational and ambiguous Nazi legal standards of conduct, which lacked an ‘unequivocal content’, making the system ‘a shell covering individual measures’.24 On this basis, ‘if law is not only voluntas but also ratio, then we must deny the existence of law in the fascist state’.25 In his adherence to a specific character of law based on rationality, Neumann arguably adopts a natural law framework for invalidating law in the Nazi state.26 He applies an ethical standard of equality and formal requirements such as predictability to determine whether Nazi law is valid or not, notwithstanding his acceptance of the Nazi dissolution of law into morality.27 It is the quality of the ethical standards of conduct in question that is key for Neumann in denying Nazi law the status of law. There are potential problems with Neumann’s interpretation of the Nazi legal system, in particular his dismissal of its explicit ideological foundations as incapable of constructing it as a form of legality, which will not be addressed in detail here. The primary aim is to highlight the predominance of an interpretation based on non-law in Behemoth, and from the foregoing discussion it is clear both that Neumann denied Nazi law the status of law and that this characterisation was a central aspect of his analysis of the nature of the Third Reich, such that the title of his book was closely related to it. Fraenkel’s analysis of the Third Reich also views some of the central features of the Nazi state through a non-law prism, even while his overall conclusion about the validity of Nazi law is different from Neumann’s. Fraenkel famously labelled the Third Reich the ‘dual state’, which was constructed out of two distinct spheres he observes in the Nazi legal system, the normative state and the prerogative state. The relationship between these two states is characterised by ‘constant friction’, with the latter somewhat parasitic on the former, although with the idea that they are able to co-exist more or less permanently, rather 19 ibid 447. 20 ibid 447–48. 21 ibid 440. 22 ibid. 23 H Jasch, ‘Civil Service Lawyers and the Holocaust: The Case of Wilhelm Stuckart’ in A Steinweis and R Rachlin (eds), The Law in Nazi Germany: Ideology, Opportunism, and the Perversion of Justice (New York, Berghahn Books, 2013) 40–41. 24 Neumann (n 10) 442. 25 ibid 451. 26 D Morris, ‘Write and Resist: Ernst Fraenkel and Franz Neumann on the Role of Natural Law in Fighting Nazi Tyranny’ (2015) 42(3) New German Critique 197. 27 Neumann (n 10) 454.

64  Simon Lavis than the prerogative state inevitably taking over and ultimately destroying the normative state.28 For Fraenkel, in contrast to Neumann, it remains on some level a legal state in that normal law continued to function in many spheres, but this is overlain with a layer of ­arbitrariness that constitutes the prerogative will of the Nazi regime: The entire legal system has become an instrument of the political authorities. But insofar as the political authorities do not exercise their power, private and public life are regulated either by the traditionally prevailing or the newly enacted law … Normal life is ruled by legal norms. But since martial law has become permanent in Germany, exceptions to the normal law are continually made. It must be presumed that all spheres of life are subjected to regulation by law. Whether the decision in an individual case is made in accordance with the law or with ‘expediency’ is entirely in the hands of those in whom sovereign power is vested.29

Fraenkel identifies many of the same elements of Nazi governance as Neumann in his analysis but reaches a different conclusion about how to interpret them to explain how the state operated and what this means in relation to the concept of law. Fraenkel, like Neumann, highlights three main elements as characteristic of Nazi law: the undermining of principles of formal justice; the subjugation of law to the political will of the sovereign; and the repudiation of natural law. Of the first, he argues that the inviolability of law is eliminated from Nazi legality.30 Of the second, he refers to the imposition of a permanent state of emergency that is accounted for by the presence of the prerogative state. The removal of certain groups – most notably the Jews – from regulation within the legal realm to a place outside the law in which ‘only political imperatives are valid’31 means that ‘martial law is the constitution of the Third Reich’.32 This goes hand-in-hand with the elevation of the Nazi political order over the legal order in the prerogative state.33 Of the third point, Fraenkel argues that the Third Reich represents the ‘repudiation of every trace of rational Natural Law’.34 Again, similar to Neumann, the focus here is on the absence of a rational basis for law and the rejection of specific, formal principles in favour of ambiguous, political values. These three elements are clearly related in Fraenkel’s analysis: the rejection of formal justice represents the undermining of (rational) natural law and enables the subjugation of law to politics on an arbitrary basis. Whereas, however, Neumann is minded to dismiss the rational application of technical rules that comprise the normative state (and is also ostensible in the prerogative state) as secondary for characterising the nature of Nazi law as a whole, Fraenkel considers the normative state to be a substantial part of the system, which contributes significantly to its overall operation. As a result, Fraenkel is unwilling to label the entire Nazi legal system as non-law. Notwithstanding some similarities to Neumann’s analysis, therefore, Fraenkel spends more time considering a theorisation of Nazi law that incorporates it within the conceptual realm of ‘law’, not least in his discussion of the doctrine of ‘communal natural law’.35

28 Fraenkel 29 ibid. 30 ibid

(n 10) 57.

107. 141. 32 ibid 96. 33 ibid 94. 34 ibid 114. 35 ibid ch 3 of Part II. 31 ibid

Nazi Law as Non-law in Academic Discourse  65 This, he argues, ‘is not in conflict with the arbitrary regime of the Prerogative State. Rather it presupposes its existence, for only the community and nothing but the community is of value’.36 It is a version of law that attempts to account for both the role of Nazi ethical values, particularly the Volksgemeinschaft (national community), in Nazi legality, and the presence within the overall system of the prerogative state, a sphere of governance apparently outside the legal realm. Nevertheless, non-law remains an important presence in his analysis, and an enduring aspect of its significant influence within subsequent academic discourse about Nazi law, for a number of related reasons. First, the prerogative state is arbitrary and unchecked by legal guarantees, a sphere in which political imperatives reign and which governs those who have been removed from the legal system altogether – ‘outlawed, hors la loi’.37 If you are in the prerogative state, you are by definition outside the regular legal system. It is consequently, on this level at least, a realm of non-law. Secondly, whereas the normative state is the residue of the pre-existing Rechtsstaat, true Nazi law resides in the prerogative state, which both expands and is parasitic on the normative state. The prerogative state – and therefore arguably non-law – is central to what characterises Nazi law, and the most significant and devastating Nazi policies are seen to be enacted by the prerogative state. This aspect of the dual state analysis has been particularly influential in our historical understanding of the Nazi state.38 Finally, the dual state is sometimes interpreted as two quite distinct domains existing in parallel to one another: the normative state largely untouched by Nazi ideology, and the prerogative state largely devoid of anything recognisable as law. This is an empirically problematic characterisation of the way the system operated and one that enables us to construct a false separation between the two states, which has the potential to reinforce the dichotomy between law (normative state) and non-law (prerogative state), rather than creating space for an interrogation of the complex connections between the normative and prerogative states and similarly between the Holocaust and the more mundane aspects of Nazi rule.39 While Fraenkel does attempt to theorise a version of law that incorporates and explains his model of how the Nazi state operated, arguably the more enduring and influential features of the dual state for historiography have been its separation of the normative and prerogative states and the allocation of the nadirs and excesses of Nazi criminality to the prerogative state: the sphere of terror and arbitrariness, not law.40 Neumann does provide a theoretical and empirical rationalisation of his position, while Fraenkel does provide an account of the normative and prerogative aspects of the state that explains how they operated in relation to one another and how they may be encompassed within a broader understanding of the concept of law. Nevertheless, it is the non-law implications of the ‘behemoth’ and ‘dual state’ paradigms that influenced the NMT proceedings and, partly because of this influence, continued to resonate throughout historical writing in the subsequent decades. The impact of the conclusion (in some cases) that law in Nazi

36 ibid 141. 37 ibid 96. 38 Steinweis and Rachlin (n 6) 2. 39 ibid. 40 Indeed, this allocation helps to enable the problematic description of prerogative actions as ‘Nazi crimes’, because they can be more readily viewed as falling outside the legal framework.

66  Simon Lavis Germany was merely an instrument of terror, and of the denial of the validity of the system or elements of it, has been to excuse the legal academy from proper evaluation of Nazi law and to make systemic analysis of Nazi legality very sparse within historical research for a long period, and the subject of marginal interest today. The shifting of the focus of the Anglo-American jurisprudential debate to the validity question – Nazi law or non-law – has often encouraged an abstracted and simplified understanding of the nature and operation of Nazi law, in an effort to answer a question that is not central to understanding Nazi legality. As David Fraser has argued, ‘Nazi law was law, in one form or another, and it is at the more nuanced levels of debate that we must address these questions’.41 This is mirrored in legal theory by the role of the Hart–Fuller debate, which provided a far less detailed examination of the Third Reich than Neumann and Fraenkel, with comparatively little interest in the empirical history of Nazi law, and resulted in the effective exclusion of serious discussion of Nazi law as law from jurisprudential discourse.42

B.  Non-law in the Hart–Fuller Debate The 1958 debate between HLA Hart and Lon Fuller is an important moment in the entrenchment of a non-law narrative in the Anglo-American legal academy for a number of reasons. First, because of the enduring influence of both protagonists, and Hart in particular, for legal theory.43 Secondly, because of the importance attributed to the Hart– Fuller debate and the two competing concepts of law it advanced – (Hartian) positivism and (Fullerian) natural law – within jurisprudence.44 Thirdly, and most importantly, because of the way the Third Reich and its legal system were represented in the debate – the nonlaw component that, in different ways, infused both theoretical approaches. This chapter will not recapitulate the context of the debate or its main arguments in detail, as these are well addressed elsewhere,45 but it will offer some analysis and observations about the representation of Nazi law and the prevalence of the rupture thesis within the two articles that constituted its initial engagement.46 The main questions raised for legal philosophy in the debate were the validity question – what the conditions of validity for law are – and the separability question – whether law and morality are necessarily connected to one another. These two issues, and the competing paradigms used by Hart and Fuller to answer them, determined how Nazi law was treated in the debate, and have continued to dominate the agenda within analytical 41 D Fraser, ‘“This is Not like any other Legal Question”: A Brief History of Nazi Law before UK and US Courts’ (2003) 19 Connecticut Journal of International Law 59, 124. 42 ‘Jurisprudential discourse’ refers to the tradition of primarily analytical, Anglo-American, English language, jurisprudential-theoretical writing within the legal academy. 43 See N Lacey, A Life of HLA Hart: The Nightmare and the Noble Dream (Oxford, Oxford University Press, 2004). 44 eg, P Cane (ed), The Hart–Fuller debate in the Twenty-First Century (Oxford, Hart Publishing, 2010); ‘New York University Law Review Symposium: Fifty Year Later’ (2008) 83.4 New York University Law Review 993. 45 See the edited collection and journal special issue indicated above (n 44). 46 HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593; and L Fuller, ‘Positivism and Fidelity to Law – A Reply to Professor Hart’ (1958) 71 Harvard Law Review 630. See also S Lavis, ‘The Distorted Jurisprudential Discourse of Nazi Law: Uncovering the “Rupture Thesis” in the AngloAmerican Legal Academy’ (2018) 31 International Journal for the Semiotics of Law 745, available at: doi.org/10.1007/ s11196-017-9538-5.

Nazi Law as Non-law in Academic Discourse  67 jurisprudence in the period since. In particular, the way Nazi law was represented then has led to its all but complete exclusion as a serious topic of discussion for mainstream jurisprudential discourse today. The two paradigms of the concept of law constructed through the debate – Hartian positivism and Fullerian natural law – have both been extremely influential, but it is the relationship these have to the way Nazi law was represented in the debate that has had a particularly powerful impact on the subsequent legal theoretical understanding of, and engagement with the Third Reich. This can be highlighted through a discussion of three related aspects: the level of analysis of Nazi law and the areas of Nazi law considered; the extent to which Hart and Fuller’s conclusions about Nazi law conform to their own theoretical frameworks; and the role of non-law in each of their analyses. In terms of the degree and nature of engagement with Nazi laws, Hart – in line with his abstract, analytical methodological approach – presented very little by way of evidence or discussion of Nazi law in his debate article, instead relying on a number of assertions about the system. Chief among these was that ‘law is law’ in the Third Reich47 and that the Nazi legal system was primarily an instrument of state tyranny.48 On the first of these, Hart refers appropriately to the way in which the Nazis ‘exploited subservience to mere law’ to achieve their aims,49 but this statement also implies a formalistic and positivistic understanding of how the law operated within the system, which is open to dispute.50 On the second, Hart does not explore the use of law for purposes beyond repression and tyranny, or consider examples of Nazi law outside the particular area covered by the case of the grudge informer at the centre of the debate. The principal issue is that Hart showed little interest in how the Nazi legal system actually operated, and presented no evidence of its nature or purpose under the regime.51 Fuller recognised and criticised Hart’s lack of engagement with Nazi law,52 but his own examination was not comprehensive and fundamentally his picture of the legal system in the Third Reich is not very different from what we can ascertain of Hart’s impression. It is the difference in theoretical approach rather than empirical interpretation that results in the difference in labelling of the system as law or non-law. Fuller relied for his understanding of Nazi law on limited information about the general nature of the system and a specific, brief discussion of parts of the two statutes that were engaged in the grudge informer case, which, he argues, involved ‘uncontrolled administrative discretion’ and questionable interpretive principles.53 To this he adds a reference to the ‘exploitation of legal forms’ at the outset of the regime, which ‘started cautiously and become bolder as power was consolidated’.54 On the face of it, Fuller’s analysis of Nazi law – the prolific use of secret and retroactive laws, the resort to street violence and a tendency for the courts to ignore or reinterpret

47 Hart, ‘Positivism’ (n 46) 618. 48 ibid 613. 49 ibid 617. 50 eg, VG Curran, ‘Fear of Formalism: Indications from the Fascist Period in France and Germany of Judicial Methodology’s Impact on Substantive Law’ (2001–02) 35 Cornell International Law Journal 101. 51 See D Manderson, ‘Two Turns of the Screw’ in P Cane (ed), The Hart–Fuller debate in the Twenty-First Century (Oxford, Hart Publishing, 2010) 204. 52 Fuller (n 46) 633. 53 ibid 653–55. 54 ibid 659.

68  Simon Lavis ­legislation,55 and even the exploitation of legal forms – is not erroneous. These things did happen in the Third Reich. However, the limited use of evidence, and from specific periods of Nazi rule, means his representation of the operation of the law is incomplete. For example, while the laws he considers were pre-war statutes, it should be noted that the events of the grudge informer case took place in 1944, near the end of the war, when the regime was at its most desperate and draconian. Similarly, Hitler’s gradual and pseudo-constitutional rise to power meant the Nazis inherited a system of legal and political checks and balances that they had to try to work within and exploit during the consolidation of power, which has the potential to skew the operation of law in the power-consolidation phase of the regime. Nazi legal ideology was arguably not fully or accurately manifested in the approach the leadership adopted to secure power within the pre-existing constitutional framework. The conclusions that we may draw from these examples, therefore, that Nazi law was only brutally repressive and tyrannous, and involved only the exploitation and undermining of the pre-existing Rechtsstaat, may be misleading. Among other things, both Hart and Fuller eschew any examination of the most distinctive and consequential aspect of Nazi law, the persecution of the Jews and other outside groups, that ultimately led to the Holocaust. As has been stated elsewhere, ‘Fuller does not acknowledge Nazism did not merely corrupt a legal system. It realised a vision of it’,56 and this is entirely overlooked in the Hart–Fuller debate. For Fuller, it was the extent to which Nazi law breached the inner morality of law that rendered aspects of it non-law: When a system calling itself law is predicated upon a general disregard by judges of the terms of the laws they purport to enforce, when this system habitually cures its legal irregularities, even the grossest, by retroactive statutes, when it has only to resort to forays of terror in the streets, which no one dares challenge, in order to escape even those scant restraints imposed by the pretence of legality – when all these things have become true of a dictatorship, it is not hard for me, at least, to deny to it the name of law.57

As has already been mentioned, Fuller draws on nothing about the Nazi legal system that would cause Hart to concede that, based on his own concept of law, it should be considered non-law. Their disagreement is not over the nature and operation of Nazi law, but rather the philosophical issues informing the validity question and the separability question. Hart uses Nazi law to make the basic point that what makes law valid or invalid is not a question of how evil it is, but is dependent on other factors such as whether it is posited correctly according to the rules of the system. Fuller’s evaluation is slightly more dependent on the historical dimension because it is the extent of breach of the morality of law that renders Nazi law non-law in his view, but the plane of the argument is also primarily on a theoretical level. Indeed, it is apparent from examining references to Nazi law in jurisprudential discourse since the Hart–Fuller debate that, because of its apparent and obvious wickedness, it is an excellent rhetorical touchstone for both positivism and natural law: even something as evil as this can be law because morality is not a condition of validity; or something as morally repugnant as this cannot possibly be law because law and morality are necessarily connected on a fundamental level.

55 ibid

650–52. (n 51) 212. 57 Fuller (n 46) 660. 56 Manderson

Nazi Law as Non-law in Academic Discourse  69 Hart’s minimal engagement with Nazi law, and the general agreement between the two over the nature of the Nazi legal system, means that it is overlooked that Hart’s own criteria for validating a legal system cannot be so readily said to incorporate Nazi law. In order for Nazi law to be valid law according to Hartian positivism, it would, among other things, need to both adhere to a minimum content of natural law that acts as a prerequisite to a functioning legal system, and comply with certain formal requirements that determine how law comes into existence and how it is applied within a system.58 It may be possible to find, in a combination of the Führerprinzip (leader principle) and the 1933 Enabling Act a sort of rule of recognition that can be used to establish the conformity of other legal provisions within the system, but these are so general and, in the case of the former, so arbitrary, that it is difficult to do so while continuing to give some sort of coherence to the idea of a rule of recognition. Other aspects are also problematic. In the case of formal requirements, for example, the merely interstitial nature of judicial discretion that Hart requires is questionable, given the extent of politicisation of the judiciary and the infusion of the law with ambiguous, moral language. Hart’s naturalist elements, minimal though they are, are also potentially difficult to align with the Third Reich. Of the principles of objectivity and impartiality in the administration of the law, Hart clarifies that these principles need not apply to the whole of society, and indeed may only apply to a very small group, but if they are systemically absent for everyone this would invalidate the legal system. However, there is a good case to be made that objectivity and impartiality were systemically absent from Nazi law, because the alternative Nazi vision of law did not consider these to be beneficial principles and because the ideology underpinning this infused the normative as well as the prerogative aspects of the system.59 This criticism of Hart’s application of positivism to Nazi law is also relevant in terms of the role of non-law in the Hart–Fuller debate. It may be noted that the principles comprising the inner morality of law in Fuller’s natural law are not very different from Neumann’s rational concept of law in Behemoth, or Fraenkel’s notion of formal justice in Dual State, in that formal concepts such as generality, non-retroactivity and inviolability are placed at the heart of what constitutes law. Fuller’s conclusions about Nazi law are particularly similar to Neumann’s in that he interprets Nazi law as a cloak of law: an arbitrary instrument of terror that, in its violation of certain fundamental principles of legality, cannot be considered law. The importance of non-law as an interpretation of Nazi law in Fuller’s concept of law is, therefore, clearly evident. It is a concept of law which cannot incorporate as valid a regime so contrary to the inner morality of law as the Third Reich. This is also important on the level of academic discourse, because of the authority of the Hart–Fuller debate within Anglo-American jurisprudence, in which Fuller’s natural law theory has remained generally influential and has arguably undergone a specific resurgence in recent years.60 As the focus of the Hart–Fuller debate and subsequent elucidations of his paradigm is on the theoretical concept, the issue of Nazi law has largely been taken as settled for natural law; it is perhaps the worst case of non-law. It is not difficult in principle, then, to link Fuller’s role in the Hart–Fuller debate to the enduring prevalence of the rupture thesis. 58 HLA Hart, The Concept of Law, 2nd edn (Oxford, Clarendon Press, 1994) 259. 59 M Stolleis, ‘Law and Lawyers Preparing the Holocaust’ (2007) 3 Annual Review of Law and Social Science 213. 60 eg, D Dyzenhaus, ‘Positivism’s Stagnant Research Programme’ (2000) 20 Oxford Journal of Legal Studies 703, as well as Rundle’s work, discussed below.

70  Simon Lavis It is more problematic, on the face of it, to assert that Hart’s validation of Nazi law as law has also contributed to the non-law narrative, especially as Hart is generally considered within jurisprudence to have ‘won’ the Hart–Fuller debate and his writing and brand of positivism has consistently been extremely influential within the field. This claim can nevertheless be argued in two ways. The first is to take the preceding critique of the application of Hartian positivism to Nazi law to its logical conclusion, which is to say that in fact Nazi law is non-law according to Hart’s own paradigm, properly applied. This is the more straightforward argument, but it runs into difficulty because this is not a prevalent interpretation of the Hart–Fuller debate. Scholars have rarely taken the view that Hart was mistaken about the application of his theory to Nazi law and so its influence on the discourse in this respect is insignificant. The second way of making this claim is less obviously the advancement of a non-law interpretation but is arguably more consequential for how Nazi law is understood. This builds on the representation of the nature of Nazi law in Hart’s contribution and the enduring impact this has on how that body of law is understood and portrayed in legal theory. As such, this second way takes the idea of the rupture thesis at its broadest, as the rupturing of Nazi Germany from the concept of law, and considers the legacy of the Hart–Fuller debate through the positivist tradition within jurisprudence from this perspective to make the argument that Nazi law is not considered a serious subject of legal theoretical research into the concept of law today in large part as a result of its treatment in the debate. As Hart’s very methodology for elucidating the concept of law is abstract, historical manifestations such as Nazi law are used as illustrative exemplars to support an argument rather than concrete case studies to be explored in detail. The lack of an empirical historical component to analytical jurisprudential research means the academic discourse often relies heavily on pre-existing representations of an example case. Nazi Germany, because of the Hart–Fuller debate, is often taken as read in its implications for the concept of law.61 Both Hart and Fuller employ the case of Nazi law quite sparsely as an example, but imply clear, and sometimes questionable, conclusions about the nature and operation of the Nazi legal system to which they attach their own arguments about the separability of law and morality and the conditions of validity for law. Following the Hart–Fuller debate, the case of Nazi law is considered settled and, ­particularly for Hart, it appears to be a simple case: an immoral legal system that says nothing new about the concept of law. This conclusion performs its own act of rupture on the Third Reich because it divorces it from serious discussion about the nature of law. Subsequent decades of jurisprudential discourse demonstrate that, while the Third Reich reappears repeatedly as an archetypal wicked legal system or repository of shocking (sometimes hypothetical) examples, it does so almost exclusively on these terms: it is as Hart and Fuller represented it, and there is nothing new or complex to learn from it. The rupture thesis is not only about saying Nazi law is not law, but also about a related lack of engagement with the subject: the ‘absurdly thin’ condition of the post-war production of Anglo-American academic lawyers on law and the Holocaust,62 and the fact that ‘academic lawyers … have with very rare exception stood mute since the Hart–Fuller debate of the late 1950s’.63

61 eg,

Lavis (n 46). DeCoste, ‘Review of David Fraser, Law After Auschwitz’ (2007) 17 King’s Law Journal 179, 180. 63 DeCoste, ‘Hitler’s Conscience’ (n 2) 4. 62 F

Nazi Law as Non-law in Academic Discourse  71

Reproducing the Rupture Thesis: The Persistence of the Non-law Paradigm The representations of Nazi law in history and law manifested in the writing of Fraenkel and Neumann, Hart and Fuller constructed an interpretation of Nazi legality with non-law as a significant element and prepared the ground for the development of the rupture thesis. It has been noted that this understanding of Nazi law continues to resonate today, even while in some areas of academic research there is evidence that more attention is starting to be paid to the role of law as law in Nazi Germany, and how it relates to law in other sorts of states and to the concept of law generally. The existence of this volume and the conference that led to it is an example of this, and there are other examples, most notably from an Anglo-American perspective, as well as works in English originating from European scholars.64 However, despite the acknowledgement in some of these works of the prominence of the rupture thesis and non-law paradigm in our understanding of Nazi law, there is a tendency in these texts to reproduce or reinforce aspects of this approach, or at least an apparent readiness to accept the application to Nazi Germany of a language of criminality and lawlessness, which supports a non-law narrative. For example, Steinweis and Rachlin reiterate that ‘Germany largely ceased being a Rechtsstaat – a nation of laws’.65 Similarly, at the same time that Vormbaum seeks to place a greater emphasis on continuity of law than most previous studies of Nazi law, he also explicitly employs the language of the rupture thesis, with reference to ‘the manifest unlawfulness of the National Socialist regime and its exorbitant crimes’.66 Finally, notwithstanding her acknowledgement of the non-law view’s prevalence, Rundle’s own writing about law and the Holocaust employs a revised version of Fuller’s natural law to argue that the Holocaust was an essentially non-lawful event, as after November 1938 ‘the policy of extermination … belonged to an extra-legal world of SS  directives that remained, at all times, contingent on the whims of those who had the power to issue them’.67 This is not to say that these recent studies simply reproduce the rupture thesis without critical reflection or modification. Steinweis and Rachlin largely favour Fraenkel’s dual state model which, as we have observed, incorporates the extra-legal, prerogative state into a broader framework of Nazi law as law. In doing so, they implicitly acknowledge the disproportionate influence on our understanding of Nazi law of the distinction between the two states, and the consequent location in the discourse of Nazi repression in the realm of the prerogative state. Their acknowledgement of the limitations of the dual state model is accompanied by use of the language of criminality in relation to Nazi law, reflecting a willingness to view the prerogative state as a lawless sphere, notwithstanding the attempted partial deconstruction of the conceptual separation of the two realms. 64 eg, Vormbaum (n 5); HP Graver, Judges Against Justice: On Judges When the Rule of Law is Under Attack (Berlin, Springer, 2015); M Stolleis, History of Social Law in Germany (New York, Springer, 2014). See also S­ teinweis and Rachlin (n 6). 65 Steinweis and Rachlin (n 6) 1–2. 66 Vormbaum (n 5) 264 (emphasis added). 67 K Rundle, ‘The Impossibility of an Exterminatory Legality: Law and the Holocaust’ (2009) 59 University of Toronto Law Journal 65, 76.

72  Simon Lavis This results ­simultaneously in a questioning and a reinforcement of the dual state theory, which is not then followed through with a longer and deeper evaluation of how the Nazi legal system operated within and between the two states. The majority of the chapters in their volume focus on the role of different professional groups in Nazi rule or at the postwar trials. With one exception, little attention is paid to the overall nature of Nazi law and its connection to the ideology of the regime,68 and so a revised application of the dual state paradigm is not established. Vormbaum also employs the language of criminality and lawlessness, in this case in the context of arguing that there are recognisable legal continuities through the Third Reich, and he does attempt to situate Nazi law within the longer continuities in German history implied by the subject of his work. However, there is a similar tension between the assertion of particular doctrinal and conceptual continuities running from before the Third Reich into the regime and on into the post-war period, and the clear declaration of the ‘manifest unlawfulness’ of the regime as a whole. The most straightforward reading of this is that it has a natural law underpinning, according to which the manifest injustice of actions of the Nazi regime naturally result in their manifest unlawfulness. This interpretation is supported by an apparent distinction drawn in the text between the legal status of particular laws and the (un)lawfulness of the legal system as a whole. Vormbaum also arguably goes further in assimilating aspects of the rupture thesis when referring to what is described as the specific pathology of the Nazi regime, that ‘we are here concerned not with the state as the creator of laws, but with the state as the breaker of laws, with “state-encouraged crime”’.69 In support of this, he cites a number of examples from the Third Reich.70 This adopts the perspective of the Nuremberg Trials by implying that Nazi acts were in breach of positive laws as well as natural law, meaning they are to be considered criminal from the outset. Notwithstanding his elucidation and analysis of Nazi legal concepts and principles as well as specific Nazi laws, and the various continuities and similarities between those and other laws, little more is said about this claim, which appears to site key aspects of Nazi rule and policy within the realm of non-law. It is difficult to know how best to interpret Vormbaum’s various constructions of Nazi law as non-law, not least because he also does not delve any further into the issue or specify his theoretical rationale. However, the influence of both Neumann and Fraenkel is discernible in his analysis. The general attribution of lawlessness to the regime and its central acts on the basis, at least in part, of a repudiation of certain principles of legality, seems to fit within the concept of lawlessness asserted by the Behemoth model. Fraenkel’s influence, meanwhile, can be seen in the implied distinction to be made between some of Vormbaum’s comments that appear to accept the legality and status as law of a number of Nazi criminal laws, and his labelling of the systematic extermination of the Jews and other acts as examples of state crimes. On this analysis, Vormbaum’s reference to the ‘exorbitant crimes’ of the regime becomes the focus of its ‘manifest unlawfulness’, leaving a distinction between ordinary criminal legislation and the tools used to carry out the Holocaust that might find its foundation in Fraenkel’s description of the dual state. 68 R Gross, ‘Guilt, Shame, Anger, Indignation: Nazi Law and Nazi Morals’ in A Steinweis and RD Rachlin (eds), The Law in Nazi Germany: Ideology, Opportunism, and the Perversion of Justice (New York, Berghahn Books, 2013). 69 Vormbaum (n 5) 207. 70 ibid 208.

Nazi Law as Non-law in Academic Discourse  73 It is, however, not made completely clear on what theoretical basis Vormbaum constructs his case for manifest unlawfulness, or precisely how he sees that unlawfulness intersecting both with lawful aspects of the regime, and with doctrinal and conceptual continuities with lawful systems both preceding and following the Third Reich. Consequently, a reproduction of at least some aspects of the non-law paradigm are apparent in Vormbaum’s analysis, as they are in Steinweis and Rachlin, even where the overall thesis purports to question, or at least acknowledges as problematic, the notion of rupture. It may, of course, still be possible to stake out a ‘dual state’ position, where law and nonlaw both co-existed in the Nazi regime. However, in a field of study acknowledged to be dominated by the rupture thesis, if one is to make this case it is important to conceptualise on a systemic level how the legal and the extra-legal worked together, on the basis that it is now understood that inferring a clear separation of the normative and prerogative states from Fraenkel is not sustainable.71 Vormbaum appears to acknowledge the prevalence of the rupture thesis, to explain many elements of the Nazi system in terms of conceptual and doctrinal continuities as if it were law, and then to describe that system as lawless. A similar approach is adopted by Michael Stolleis, who has grappled with the issue of resolving the law/non-law paradox in evaluating Nazi law: ‘the dilemma of the existence of law in a system that is on the whole unlawful and un-just or that at least commits many unlawful acts’.72 In scoping out possible solutions to this paradox, Stolleis concedes that they either cannot be sustained or they run into a reality of Nazi law that was complex, diverse and changed over time,73 and in so doing he refers to Fraenkel’s dual state and the coexistence of ‘normality and terror’.74 It is necessary to question, in response to Stolleis’s framing of the issue, whether the regime was in fact systemically unlawful, or systemically unjust, or whether it ‘only’ committed many unlawful acts. What is the distinction between these statuses – because surely they are different – and, beyond the undeniable attribution of unjust-ness, how can we justify any of them empirically? Like Vormbaum, Stolleis appears to make a good case in his analysis of the legal system for treating specific Nazi laws as law, and at the same time appears not to identify a jurisprudential basis on which to invalidate Nazi law,75 but he nevertheless refers to its overarching unlawfulness. Whereas general historians of the Third Reich have arguably been understandably inattentive to the broader issue of how to interpret the nature of the Nazi legal system as a whole in a way that is both historically and theoretically intelligible as law, the non-law paradigm continues to be reproduced in legal theory. To make her argument about the transformation of Nazi law into non-law around November 1938 when Kristallnacht took place,76 Rundle applies aspects of Fuller’s theory to different areas of the Nazi regime, specifically the Nazi persecution programme against the Jews. This can be interpreted as a version of the dual state paradigm if the fault line between the normative and prerogative states is drawn across 71 M Stolleis, ‘Law and Lawyers Preparing the Holocaust’ (n 59) 216: ‘it is a myth that some areas remained entirely untouched by the political claims of the system. Neither the frequently cited land register law, nor the social security or tax laws, nor the law concerning debts, property, family, and inheritance was in any way immune’. 72 ibid 214. 73 ibid 215. 74 ibid 216. 75 ibid 214–15. 76 See Rundle, ‘Review of Law After Auschwitz’ (n 7) 197; Rundle, ‘Impossibility’ (n 67); K Rundle, ‘Law and Daily Life – Questions for Legal Philosophy from November 1938’ (2012) 3(2) Jurisprudence 429.

74  Simon Lavis time rather than space; ie, the lawless prerogative state followed the normative state in time rather than the two coexisting at once. To reinforce this analogy, it should be remembered that Fraenkel’s dual state model is itself not without a temporal aspect. If the normative state is the area of the legal system that continued to operate with the checks and guarantees of the pre-existing Rechtsstaat, the claim is that this was not because of any Nazi desire to maintain the principles of legality in certain areas of rule, but because of the need to work with the existing system for pragmatic reasons and because of the absence of a revolutionary moment in the seizure of power. The prerogative state represents the gradual imposition of Nazi legality onto the normative framework, which naturally occurred more rapidly and comprehensively in some areas than in others. Rundle in effect, and underpinned by natural law philosophy, argues that the prerogative state ultimately completely took over and invalidated the legal system after 1938, although it is worth noting that Rundle’s inquiry is limited to anti-Jewish persecution measures, so it is not completely clear if she considers that other aspects of the state continued to function lawfully, or indeed whether that matters in terms of the validity of the whole system. Two further key points about Rundle’s argument require attention here. First, her approach reproduces the non-law paradigm as the main way through which key aspects of the Nazi legal system should be understood and, in doing so, posits a rupture between the period before November 1938 and afterwards. This is particularly apparent in the way the 1935 Nuremberg laws are interpreted, denying their proto-exterminatory character because of the absence of any lethal intention among the Nazi leadership at the time of their passage and because they continued to leave some room for Jewish agency under the law. However, while it is now generally accepted by historians that there was no exterminatory intention at that stage, it is difficult to use this as evidence for a qualitative break between law and non-law in 1938 because it was an early but significant step in a process of radicalisation that resulted in the Holocaust. To require exterminatory intention among the Nazi leadership in 1935 in order to connect early persecutory laws with the Holocaust would entail a problematic rejection of the interpretive school of functionalism and a return to intentionalism as a way of understanding the Third Reich.77 Secondly, and picking up from this point, Rundle’s analysis specifically places the Holocaust in the realm of non-law by labelling all measures against the Jews after around November 1938 as legally invalid. Consequently, a fairly consistent element of the rupture thesis that denies the complicity of law with the Holocaust, ostensible in the work of Neumann and Fraenkel, Fuller, Steinweis and Rachlin, Vormbaum and possibly Stolleis, is also present in Rundle’s work. Once again, it may be possible to make the case that some aspects of the Holocaust took place in the extra-legal realm, and it is not a principal argument of this chapter that the Holocaust was entirely a lawful enterprise,78 but it is important when advancing a non-law thesis to construct such an argument on a solid historical and theoretical basis, not least because of the implications of the rupture thesis for academic research into Nazi law. Rundle’s work represents a high point of engagement with the issue of Nazi law from within mainstream Anglo-American jurisprudence, but it nevertheless reproduces key aspects of the rupture thesis and some of the underlying historical and ­theoretical understandings of Nazi law that support this.

77 See 78 See

Kershaw (n 4). David Fraser, ch 2 in this collection.

Nazi Law as Non-law in Academic Discourse  75

Conclusion The consequences of the rupture thesis for the scholarly study of Nazi law are apparent for the legal academy as well as the historical academy. Efforts to exclude the Nazi period from normal historical development and more particularly from normal legal development have their purposes, but they have often resulted in a lack of engagement with Nazi law as a serious subject of enquiry, both from lawyers and historians. For legal theorists, the impact of the Hart–Fuller debate on jurisprudential discourse has been discussed, and for the legal academy generally the exhortations of DeCoste, Fraser and others about the failure to address the Holocaust as a matter of law are telling. For historians, the continued underlying presence of the non-law paradigm in the most recent works reflects a long period during which, while individual Nazi laws were part of historical narratives of the rise to power and rule, systemic studies of the Nazi legal system were rare, the models advanced by Neumann and Fraenkel held sway, and most investigations of law in relation to the Third Reich concerned Nazi war crimes trials rather than Nazi law itself. Returning to the key theme of this collection – the connections between ideology and law – some of this neglect of Nazi law can be related to a general reluctance within historiography to consider Nazi ideology as an important factor for Nazi rule. As Dan Stone has observed: Where early scholars of the Third Reich like Fraenkel identified a ‘dual state’, so much of the recent literature stresses the cynical, ‘nation-building’ aspect of Nazism over its ideological commitments. The notion of the Third Reich as a gangster regime is apparent in studies of looting, for example, or in the operation of the various levels of bureaucracy in the state, for example, in the failure of the civil authorities to rein in Party organizations in the occupied east.79

In this instance, the absence of even a dual state model of the Third Reich within historiography is lamented because of the extent to which ideology, particularly as a consensus-building element, was overlooked in favour of a ‘gangster’ or criminal state interpretation of the regime. This can be related to the neglect in much of the discourse of the connections between ideology and law in the Third Reich. If law is viewed as simply an instrument of terror, it becomes both easier to invalidate it on grounds of natural law and to consign the Third Reich to irrelevance for other legal systems and the concept of law generally. In the absence of an overarching legal ideology, while the role of individual laws in repression and persecution is certainly worthy of attention, there appears little need to consider the systemic nature of the law further. However, among historians of the Third Reich, an ideological turn took place from the 1990s, which looked beyond the explanatory power of terror alone and took the role of consent, and consequently ideology, in Nazi state and society more seriously. Historians started to consider ideology as an important aspect of consensus building in the regime. Despite these general developments, however, Nazi law has still had limited exposure to the new attention given to ideology and continues to be treated in many studies of the Third Reich as only an instrument of terror rather than also as a reflection of the regime’s ideology. In this respect Nazi legal history lags behind other historical developments and



79 Stone

(n 4) 134.

76  Simon Lavis requires further examination. The rupture thesis has operated over a long period of time to guard against such an engagement, and it is this discursive cooling effect, rather than the individual merits of the nuances of analysis in particular manifestations, that is most noteworthy about the non-law paradigm and its reproduction today. This chapter has attempted to unpack and elucidate key moments in the genesis, reproduction and continuing influence of the rupture thesis – the non-law paradigm – so that its underlying tenets can be understood and its ambivalent impact on academic discourse around Nazi law can be appreciated. The hope from this is that more lawyers and historians are willing to engage seriously with Nazi law both as a historically specific legal system and in a comparative framework alongside studies of other anti-democratic and authoritarian regimes.

4 Nazi Criminal Justice in the Transnational Arena: The 1935 International Penal and Penitentiary Congress in Berlin RICHARD F WETZELL*

Introduction More than two years into the Nazi regime, in August 1935, the Nazi government hosted the eleventh International Penal and Penitentiary Congress in Berlin.1 The Congress was a major event. It was attended by over 700 participants, of whom about 300 came from abroad, including official delegations from 50 countries. The opening session featured two of Nazi Germany’s most powerful jurists: the German Justice Minister, Franz Gürtner, who delivered the opening lecture, and Erwin Bumke, chief justice of the German Supreme Court, who presided over the Congress in his capacity as president of the International Penal and Penitentiary Commission. Congress participants visited four Berlin prisons, and right after the Congress over 100 delegates, including 70 foreigners, took part in a week-long study tour of German prisons.2 At first sight, the fact that Nazi Germany hosted such a prominent international forum in the field of law appears surprising because we tend to think of Nazi law as marking a * I wish to thank Douglas Morris and two anonymous reviewers for their helpful comments on an earlier draft of this chapter. 1 The 1935 Congress has received limited attention from legal historians. B Forsythe, ‘National Socialists and the English Prison Commission: The Berlin Penitentiary Congress of 1935’ (1989) 17 International Journal of the Sociology of Law 131 focuses on the British perspective and sources. Brief discussions of the Congress can also be found in: T Pires Marques, Crime and the Fascist State 1850–1940 (London, Pickering & Chatto, 2013) 161–67; S Freitag, Kriminologie in der Zivilgesellschaft, Wissenschaftsdiskurse und die Britische Öffentlichkeit, 1830–1945 (Munich, Oldenbourg, 2014) 271–75; M Pifferi, Reinventing Punishment: A Comparative History of Criminology and Penology in the Nineteenth and Twentieth Centuries (Oxford, Oxford University Press, 2016) 221–26. 2 This chapter is based on archival research in the records of the German Ministry of Justice (Bundesarchiv Berlin-Lichterfelde) and of the International Penal and Penitentiary Commission (United Nations Archives, New York) as well as the published five-volume French language proceedings of the Congress, which include all written reports and an almost verbatim record of the discussions at plenary and section meetings: Actes du Congrès Pénal et Penitentiaire International de Berlin, Août 1935 (hereafter Actes) (Berne, Bureau de la Commission Internationale Pénale et Penitentiare, 1936). Direct quotations are from the one-volume English language version of the proceedings, whose translations I have frequently modified to conform more closely to the French original: Proceedings of the XIth International Penal and Penitentiary Congress held in Berlin, August 1935 (hereafter Proceedings) (Bern, 1937).

78  Richard F Wetzell sharp break from the Weimar legal order and from the law of democratic nations more generally. For several decades after 1945, this way of thinking was nourished by the West German historiography of law under National Socialism, which advanced two major strands of interpretation.3 The first argued that the Nazi seizure of power marked a radical break in German legal history because the Nazi regime had ‘perverted’ criminal justice, transforming Germany from a Rechtsstaat (a state characterised by the rule of law) into an Unrechtsstaat (a state characterised by the negation of law and justice).4 Whereas early apologetic versions of this interpretation portrayed German jurists as ‘defenceless against the penetration of state-sponsored injustice into the judicial realm’,5 later, critical versions argued that jurists had played an active role in the process of perverting justice.6 The second post-war strand of interpretation stressed continuities rather than ruptures but conceived of these continuities as German peculiarities. Social Democratic legal scholar, Gustav Radbruch, argued that the willingness of German judges to enforce unjust Nazi laws was best explained by the tradition of German legal positivism.7 After this thesis foundered on strong evidence that many German judges had used their judicial discretion to push Nazi policies beyond what was dictated by strict adherence to the law, another version of the continuity thesis attributed German judges’ participation in Nazi injustice to their ideological affinity for Nazism, which was traced back to the judiciary’s right-wing, anti-Republican attitudes in the Weimar era.8 Since the late 1980s, finally, research on the history of c­ riminal justice under the Nazis has paid increasing attention to the continuing influence of the pre-1933 German penal reform movement on Nazi penal policy.9 All these interpretations treat German legal history primarily as a national story and rarely refer to developments outside Germany. In many respects, the different continuity arguments promote versions of a German Sonderweg, a special path of development that diverged from the paths of other Western countries. This chapter moves beyond the national perspective by using the 1935 International Penal and Penitentiary Congress as a lens to place the history of Nazi penal policy in its transnational context. With this approach, I hope to make four contributions to our 3 See especially M Stolleis, ‘Nationalsozialistisches Recht’ in Handwörterbuch zur deutschen Rechtsgeschichte, 2nd edn (Berlin, Schmidt, 2016) 1806–24; on criminal justice under Nazism see T Vormbaum, Einführung in die moderne Strafrechtsgeschichte, 3rd edn (Berlin, Springer, 20146) 176–214, translated as A Modern History of German Criminal Law (Berlin, Springer, 2014). See also M Stolleis, Recht im Unrecht (Frankfurt/Main, Suhrkamp 1994), translated as The Law under the Swastika: Studies on Legal History in Nazi Germany (Chicago, IL, Chicago University Press, 1998); and A Steinweis and RD Rachlin (eds), The Law in Nazi Germany: Ideology, Opportunism, and the Perversion of Justice (New York, Berghahn Books, 2013). 4 Redaktion Kritische Justiz (ed), Der Unrechtsstaat: Recht und Justiz im Nationalsozialismus (Frankfurt, Europäische Verlagsanstalt, 1979). 5 H Weinkauff, Die Deutsche Justiz und der Nationalsozialismus (Stuttgart, Deutsche Verlags-Anstalt, 1968) 30–31. 6 M Broszat, ‘Zur Perversion der Strafjustiz im Dritten Reich’ (1958) 6 Vierteljahreshefte für Zeitgeschichte 390, 390–443. 7 G Radbruch, ‘Gesetzliches Unrecht und übergesetzliches Recht’ (1946) 1 Süddeutsche Juristenzeitung 105, reprinted in Radbruch Gesamtausgabe, vol 3 (Heidelberg, CF Müller, 1990) 83 f; D Morris, ‘Accommodating Nazi Tyranny? The Wrong Turn of the Social Democratic Legal Philosopher Gustav Radbruch After the War’ (2016) 34 Law and History Review 649. 8 I Müller, Furchtbare Juristen (Munich, Kindler, 1987), translated as Hitler’s Justice (Cambridge, MA, Harvard University Press, 1991); R Angermund, Deutsche Richterschaft 1919–1945 (Frankfurt am Main, Fischer, 1990). 9 L Gruchmann, Justiz im Dritten Reich 1933–1940, 2nd edn (Munich, Oldenbourg, 1990); G Werle, ­Justiz-Strafrecht und polizeiliche Verbrechensbekämpfung im Dritten Reich (Berlin, de Gruyter, 1989) 5–54; T Roth, Verbrechensbekämpfung und soziale Ausgrenzung im nationalsozialistischen Köln (Cologne, Emons, 2010) 44–47.

Nazi Criminal Justice  79 ­ nderstanding of criminal law in Nazi Germany and beyond. First, by placing Nazi penal u policy in transnational context, we can more accurately assess which aspects of Nazi criminal law were specific to the Third Reich, which were shared with other authoritarian regimes, and which reflected larger transnational ‘camps’ or even a consensus in the transnational penal reform arena. Second, German jurists’ speeches at the Congress and their participation in its debates reveal the image of Nazi criminal justice that they sought to present. What relative importance did they assign to laying claim to a ‘radical transformation’ of criminal law versus deriving legitimacy from sharing in a long-standing transnational penal reform agenda? Third, the discussions at the Congress show which penal reform proposals were supported by a broad transnational consensus and which were controversial; and the debates over the contested proposals reveal the different camps of supporters and opponents, which allows us to learn something about the transnational landscape of penal reform in the 1930s. Finally, our analysis of the Congress’s proceedings – as well as the place of Nazi jurists within it – will provide the basis for some concluding reflections on the relationship between criminal law and political ideology.

Transnational Penal Reform Networks To understand the significance of the 1935 Penitentiary Congress, some background on the transnational dimension of European penal reform is helpful. Since the last third of the nineteenth century, penal reformers in most countries saw themselves as forming part of a transnational reform movement.10 Before 1914, this movement coalesced around three different transnational networks: penitentiary congresses, criminal anthropological congresses, and penal reform congresses. The first penitentiary congress was organised by the American prison reformer Enoch Wines in London in 1872. This congress led to the establishment of the International Penitentiary Commission, which, from 1872 to 1950, organised international congresses approximately every five years, interrupted only by the two world wars.11 While the penitentiary congresses focused on prison reform, in 1885 Italian criminal anthropologists around Cesare Lombroso organised the first International Congress of Criminal Anthropology. Primarily attended by medical doctors engaged in criminological research, the criminal anthropological congresses met about every five years until 1911.12 10 On the transnational reform movement see M Henze, ‘Crime on the Agenda: Transnational Organizations 1870–1955’ (2009) 2 Historisk Tidsskrift 369; S Kesper-Biermann and P Overrath (eds), Die ­Internationalisierung von Strafrechtswissenschaft und Kriminalpolitik (1870–1930): Deutschland im Vergleich (Berlin, Berliner ­Wissenschafts-Verlag, 2007); Marques (n 1) 25–35, 48–67. 11 On the IPC see M Henze, ‘Important Forums […] among an Increasingly International Penological Community: Die internationalen Gefängniskongresse 1872–1935’ in S Kesper-Biermann and P Overrath (eds), Die Internationalisierung von Strafrechtswissenschaft und Kriminalpolitik (1870–1930): Deutschland im Vergleich (Berlin, Berliner Wissenschafts-Verlag, 2007); NK Teeters, Deliberations of the International Penal and Penitentiary Congresses: Questions and Answers, 1872–1935 (Philadelphia, PA, Temple University Book Store, 1949); E Delaquis, ‘L’oeuvre de la Commission Internationale Pénale et Pénitentiaire 1872–1942’ (1942) 10(1) Recueil de documents en matière pénale et pénitentiaire 1. 12 P Knepper, The Invention of International Crime (Basingstoke, Palgrave Macmillan, 2010) 159–87; M ­Kaluszynski, ‘The International Congresses of Criminal Anthropology’ in P Becker and RF Wetzell (eds), ­Criminals and their Scientists: The History of Criminology in International Perspective (New York, Cambridge University Press, 2006).

80  Richard F Wetzell Finally, in 1888, a group of jurists committed to penal reform – the German Franz von Liszt, the Belgian Adolphe Prins and the Dutchman Gerard van Hamel – set up the Internationale Kriminalistische Vereinigung (IKV) or Union Internationale de Droit Penal as an organisation that brought together jurists interested in reforming the criminal law. The most active of the three international organisations, the IKV held international meetings almost every other year, with a total of 12 congresses between 1889 and 1914.13 These congresses were only the most visible sign of a strong transnational network of law professors, judges, prison officials, government bureaucrats and criminologically interested medical doctors who corresponded, exchanged publications, studied foreign reform proposals, and sought to develop common guidelines for penal reform. Like many other areas of international cooperation, this penal internationalism was profoundly disrupted by the First World War. The criminal anthropological congresses were never resumed after the war,14 and efforts to revive the IKV failed. The war and its aftermath witnessed the deaths of the IKV’s three founders and left a bitter legacy of Franco-German antagonism that made French jurists wary of reviving a German-dominated organisation (a third of the IKV’s c 1100 pre-war members had been German). While the IKV’s German Landesgruppe (national chapter) resumed its activities and functioned as Weimar Germany’s main penal reform organisation, early post-war attempts at Franco-German mediation designed to revive the IKV failed, and in 1924 French penal reformers founded a new international organisation, the Association Internationale de Droit Pénal (AIDP). While its mission was virtually identical to that of the IKV, its statutes provided that leadership positions had to be filled by members of the Société Générale des Prisons, effectively reserving them for Frenchmen. In addition, membership was initially limited to members of ‘loyal and pacified nations’, excluding Germans and Austrians. Although jurists from neutral countries initially declined to participate, the AIDP’s first congress, which took place in Brussels in 1926, succeeded in bringing together over 300 criminal jurists from 40 countries.15 The German IKV chapter regarded the French effort to install the AIDP in place of the pre-war IKV as disloyal and refused to participate even after they were invited to join. In the meantime, the AIDP flourished, holding further congresses in Bucarest in 1929 and in Palermo in 1933. Although in 1932 AIDP and IKV representatives met and agreed to cooperate in the future, under the auspices of the League of Nations, the prospect of cooperation was cut short by the Nazi seizure of power and Germany’s resignation from the League of Nations.16 The protracted conflict between the AIDP and IKV during the 1920s only increased the significance of the International Penitentiary Commission (IPC), which differed from the IKV and AIDP in three major respects. First, whereas the IKV and AIDP were primarily 13 On the IKV see S Kesper-Biermann, ‘Die Internationale Kriminalistische Vereinigung’ in S KesperBiermann and P Overrath (eds), Die Internationalisierung von Strafrechtswissenschaft und Kriminalpolitik (1870–1930): Deutschland im Vergleich (Berlin, Berliner Wissenschafts-Verlag, 2007); E Bellmann, Die Internationale ­Kriminalistische Vereinigung, 1889–1933 (Frankfurt, Peter Lang, 1994); L Radzinowicz, The Roots of the International Association of Criminal Law and their Significance. A Tribute and Re-assessment on the Centenary of the IKV (Freiburg, Max-Planck-Institut für Ausländisches und Internationales Strafrecht, 1991). 14 Except for the Criminological Congress in Rome in 1938. 15 Kesper-Biermann (n 13) 97–101. On the first AIDP Congress see C de Wiart and J-A Roux (eds), Premier congrès international de droit pénal, Bruxelles (26–29 juillet 1926) (Paris, Librairie des Juris-Classeurs, 1927). 16 Kesper-Biermann (n 13) 101–03.

Nazi Criminal Justice  81 dedicated to reforming penal legislation, the IPC was originally focused on prison reform. Second, whereas the IKV and AIDP membership consisted primarily of law professors and legal practitioners, the Penitentiary Commission consisted of official government delegates, even though legal academics and practitioners were invited to attend the congresses. Third, whereas the IKV and AIDP were predominantly continental European organisations, the Penitentiary Commission consisted of delegates from about 30 countries, with equal voting rights on the Commission. If anything, the IPC was characterised by a strong AngloAmerican element, which reflected the long-standing prison reform traditions in both countries.17 When the German Justice Ministry was invited to send a delegation to the 1925 London Penitentiary Congress and to join the Penitentiary Commission on a permanent basis, it eagerly seized the opportunity. The German delegation was led by Erwin Bumke, who had headed the Justice Ministry’s division of criminal justice since 1919 and played a key role in Weimar-era penal reform; in 1929 he became chief justice of the German Supreme Court. He once again chaired the German delegation at the 1930 Penitentiary Congress in Prague, where he played a prominent role and convinced the Commission to accept a German invitation to hold its next (1935) congress in Berlin.18 With the ongoing conflict between the IKV and AIDP, Germany’s successful bid to host the next congress was a coup that promised to enhance Germany’s standing in the ‘penal international’. It was also a personal success for Bumke, who, in accordance with the IPC tradition that the chief delegate of the next congress’s host country serve as president, was voted IPC president for the five-year term from 1930 to 1935. As Bumke assumed this office, two changes promised to make the IPC’s work more significant. First, the IPC had recently (1926) established a permanent bureau, which was located in Bern, Switzerland, and directed by a secretary-general. The creation of a bureau allowed the IPC to expand its activities beyond the preparation of the congresses and the publication of its journal to conducting inquiries, commissioning studies and preparing guidelines for penal policy. Second, at its Prague Congress, the IPC decided to change its name to the International Penal and Penitentiary Commission (IPPC; Commission Internationale Pénale et Penitentiaire) to signal that it was expanding its mission beyond prison reform to encompass the larger realm of penal policy, a process that had been under way for some time, but was accelerated by the stand-off between IKV and AIDP.19 Consequently, when the Nazis took power in January 1933, the decision to hold the next IPPC congress in Berlin had already been taken, and the Penitentiary Commission was headed by Erwin Bumke as president. In addition, the bureau’s secretary general, the Dutch law professor Simon van der Aa, and treasurer, the Swiss Ernst Delaquis, had strong pro-German sympathies, as demonstrated by their efforts to mediate between the IKV and AIDP.20 Therefore, even though some members of the IPPC surely had doubts about the wisdom of holding the next congress in Nazi Germany, they would have realised that the chances of prevailing against a pro-German bureau headed by Bumke were nil. 17 Henze, ‘Important Forums’ (n 11) 70–76. 18 Kesper-Biermann (n 13) 104; on Bumke’s role, see D Kolbe, Reichsgerichtspräsident Dr Erwin Bumke (Karlsruhe, CF Müller, 1975) 99–100. 19 Henze, ‘Important Forums’ (n 11) 67, 69. 20 Kesper-Biermann (n 13) 102.

82  Richard F Wetzell Thus, the eleventh International Penal and Penitentiary Congress met in Berlin from 19–24 August 1935. As mentioned above, it was a major event both from the perspective of prison officials and criminal jurists in other countries,21 more than 300 of whom travelled to Berlin, and in the eyes of the German Justice Ministry, which financed the Congress with about 200,000 Reichsmark from the German treasury22 and spent considerable time and effort making the local preparations.23 Although the Congress was, of course, planned in cooperation with the IPPC’s Secretary General, van der Aa, the German Justice Ministry had the upper hand: it selected the rapporteurs who would deliver oral reports on the questions before the Congress, coordinated press coverage with the Propaganda Ministry,24 and repeatedly blocked van der Aa’s insistent requests that representatives of the League of Nations be invited to the Congress.25

Three Visions of Nazi Penal Reform There can be little doubt that Justice Minister Gürtner and his Ministry regarded the Congress as a unique opportunity to gain international respectability for the Nazi justice system. One might therefore have thought that Gürtner and state secretary Roland Freisler would have used their speeches to highlight connections between Nazi penal reforms and the international penal reform movement. However, the speeches delivered by Nazi officials tell a different story.

A.  Law and Order: Justice Minister Gürtner’s Speech Gürtner’s opening address was dedicated to the topic of ‘The idea of justice in the renewal of German criminal law’. A member of the conservative Bavarian Mittelpartei, Gürtner had served as Bavarian Justice Minister in the 1920s before becoming Reich Justice Minister in the Papen cabinet in June 1932, a post he retained under Chancellor Schleicher and then Hitler. Gürtner was a conservative nationalist; he became a Nazi Party member only in 1937.26 He began his speech at the Congress by noting that ‘many of the aims we are pursuing are by no means so different from those of other countries as many an utterance in 21 For further information on invitations, see IPPC memo circulated 28 February 1935, Bundesarchiv ­Berlin-Lichterfelde (hereafter BA), R22/1283, fol 285. 22 This sum is from a 1935 Justice Ministry memo in BA, R22/1284, fol 250. The amount raised by the congress fee of 25 Swiss francs was negligible. In 1935, Germany contributed 9,300 Swiss francs (12%) towards an annual IPPC budget of 75,000 francs (Letter van der Aa to Ministerialdirektor Ernst Schäfer, 1 June 1935, BA, R22/1280, fol 172). 23 The preparation of the Congress was the subject of regular meetings between IPPC Secretary General van der Aa, Bumke and top officials in the German Justice Ministry, starting November 1934: BA, R22/1283 to R22/1288, esp R22/1283, fol 361 ff. 24 Memo on ‘Pressevorbereitung’ BA, R22/1283, fol 422; press releases, BA, R22/1283, fols 278–80, 337–39; memo on meeting with officials from Propaganda Ministry, BA, R22/1284, fols 25–26; list of newspapers to be contacted, BA, R22/1283, fols 340–48. 25 See correspondence between van der Aa and Bumke (29 May, 19 June, 25 June, 24 July 1935) and related memos in BA, R22/1284, fols 165, 170–72, 187–88, 352. 26 On Gürtner see Gruchmann (n 9) 9–83.

Nazi Criminal Justice  83 the press would have you believe’.27 Yet he did not follow this up by focusing on Nazi reforms that had implemented long-standing demands of the transnational penal reform movement, such as the indefinite detention of habitual criminals, which the Nazis had passed into law in late 1933.28 Instead, Gürtner immediately turned to the most radical reform the Nazis had passed to date: the abrogation of the so-called nulla poena sine lege principle that an act can be punished only if it has been defined as punishable in the Penal Code prior to its commission, a maxim articulated in Article 2 of the German Penal Code of 1871. On 28 June 1935 the Hitler Cabinet had passed a law (in effect from 1 ­September 1935) that abrogated this principle by replacing the existing Article 2 with the new formulation: Whoever commits an act that the law declares punishable or that deserves to be punished according to the basic premise [Grundgedanke] of a penal law and according to healthy popular sentiment [gesundes Volksempfinden] shall be punished. If no specific law applies to the act, the act shall be punished according to the law whose basic premise fits best.29

Although Gürtner made a feeble attempt to argue that the creation of new law by judges had an equivalent in the use of Anglo-American common law, he acknowledged that the nulla poena sine lege maxim was designed to protect individual liberty against judicial arbitrariness and had been enshrined in every European penal code since the Enlightenment, all the way up to the Italian Fascist Penal Code of 1930.30 Nevertheless, the Nazi state had found this principle wanting. Mentioning the recent acquittal, due to the Penal Code’s limited definition of fraud, of a person using false coins to operate public telephones,31 Gürtner explained that the National Socialist conception of law demanded that ‘no one shall succeed in slipping through the law’s net’. Henceforth, the Nazi Penal Code would therefore counter the maxim nulla poena sine lege (no punishment without a law) with the maxim nullum crimen sine poena (no crime without punishment) in order to realise ‘true justice’. Replacing a formal definition of illegality (formelles Unrecht) with a material one (materielles Unrecht), the National Socialist State regarded ‘any attack on the interests of the national community’ as illegal and worthy of punishment. If the introduction of the use of analogy in criminal justice should occasionally lead to ‘legal uncertainty regarding the boundaries between what is allowed and what is not allowed’, so be it; for this level of uncertainty was preferable to a situation in which ‘the judge should be fettered in the interest of maintaining a state of legal certainty, which is

27 Gürtner, ‘Der Gedanke der Gerechtigkeit in der deutschen Strafrechtserneuerung’ in: Actes, 1a: 3–23 (quote p 5); English translation in Proceedings 4–23, 5; published separately as Der Gedanke der Gerechtigkeit in der deutschen Strafrechtserneuerung (Berlin, np, 1935). 28 See RF Wetzell, ‘From Retributive Justice to Social Defense: Penal Reform in Fin-de-Siècle Germany’ in S Marchand and D Lindenfeld (eds), Germany at the Fin de Siècle: Culture, Politics, and Ideas (Baton Rouge, LA, Louisiana State University Press, 2004); C Müller, Verbrechensbekämpfung im Anstaltsstaat (Göttingen, Vandenhoeck & Ruprecht, 2004); RF Wetzell, Inventing the Criminal: A History of German Criminology, 1880–1945 (Chapel Hill, NC, University of North Carolina Press, 2000); M Frommel, ‘Internationale Reformbewegung zwischen 1880 und 1920’ in J Schönert, K Imm and J Linder (eds), Erzählte Kriminalität (Tübingen, Niemeyer, 1991); Marques (n 1). On the 1933 law on habitual criminals see C Müller, Das Gewohnheitsverbrechergesetz vom 24. November 1933 (Baden-Baden, Nomos, 1997); Werle (n 9) 86–108; Gruchmann (n 9) 838–44. 29 Gruchmann (n 9) 847–63; Werle (n 9) 141–78. 30 Gürtner speech, Actes, 1a: 6, 13; Proceedings, 6, 13. 31 Gürtner speech, Actes, 1a: 8–9; Proceedings, 8–9; on the telephone fraud case, see Gruchmann (n 9) 848–49.

84  Richard F Wetzell only of advantage to those whose actions are harmful to the community or only of doubtful value to it’.32 The second aspect of Nazi penal reform that Gürtner highlighted was the principle that punishments ought to depend not on the consequences of an act, but on the offender’s intention or will. This principle had not yet been passed into law but was a major component of the complete revision of the Penal Code that a reform commission headed by Gürtner was currently working on. In this coming Willensstrafrecht or Täterstrafrecht (will-based or offender-based criminal law) judges would be obliged to examine the ‘relationship of the act to the personality of the offender’: ‘the act and its consequences must be examined for what they reveal about the nature, extent, and strength of the criminal will’.33 Since the notion that punishments should be based on the offender’s personality rather than the gravity of the offence had long been a central demand of the international penal reform movement, this issue offered Gürtner a perfect opportunity to demonstrate that Nazi penal reform shared some of the goals of the international movement whose representatives were seated in the audience. Instead, Gürtner explicitly distanced Nazi penal policy from the ‘modern’ or ‘sociological’ school of criminal law: By assigning the judge the task of investigating the personality of the accused, we by no means wish to accept the demands of some adherents of the sociological school of criminal law … The sociological school originally demanded the investigation of the offender’s personality in order to educate, rehabilitate or deter the offender from future criminal acts … these doctrines led to an emasculation of German criminal justice … These ideas … led to the belief that the criminal act ought to be explained as the result of the offender’s unfortunate congenital disposition as well as an adverse environment, in particular general social conditions … [Today] we regard it as the task of the criminal law to stress the moral responsibility of the offender to the community.34

Gürtner’s portrayal of the ‘modern school’ of criminal law was distorted and unfair. The modern school’s demand for the individualisation of punishment according to an offender’s dangerousness had always had a repressive as well as a humanitarian side. For just as Liszt and his fellow reformers had called for ‘education instead of punishment’ for juvenile offenders and suspended sentences for first-time offenders, they had insisted that ‘habitual criminals’ be subject to indefinite detention.35 Yet although Gürtner’s analysis was unfair, it reflected the critique with which Nazi jurists such as Georg Dahm and Friedrich Schaffstein had been attacking the modern school since the closing years of Weimar.36

B.  Volk and Race: Roland Freisler’s and Hans Frank’s Speeches In addition to Gürtner’s opening address, the Congress also heard plenary lectures by Roland Freisler and Hans Frank, both long-standing Nazi Party activists. Freisler had 32 Gürtner speech, Actes, 1a: 6–14; Proceedings, 6–14. 33 Gürtner speech, Actes, 1a: 14–21, 19–20; Proceedings, 14–21. 34 Gürtner speech, Actes, 1a: 20–21; Proceedings, 20–21. 35 Wetzell, ‘From Retributive Justice’ (n 28); C Müller, Verbrechensbekämpfung (n 28) 125–41; Frommel (n 28); Wetzell, Inventing the Criminal (n 28). 36 K Marxen, Der Kampf gegen das liberale Strafrecht: eine Studie zum Antiliberalismus in der Strafrechtswissenschaft der zwanziger und dreissiger Jahre (Berlin, Duncker & Humblot, 1975); G Dahm and F Schaffstein, Liberales oder autoritäres Strafrecht? (Hamburg, Hanseatische Verlagsanstalt, 1933).

Nazi Criminal Justice  85 worked as a criminal defence lawyer in Kassel since 1924, joined the Nazi Party in 1925, and frequently defended Nazi Party members in court. After serving as deputy Gauleiter (regional party head) of the Nazi Party in Hessen-Nassau, he entered the Prussian state diet as a Nazi deputy in 1932. Soon after the Nazi seizure of power, he was offered a post in the Prussian Ministry of Justice, where the newly appointed minister, Hanns Kerrl, quickly promoted him to Staatssekretär, the ministry’s top civil service position. When the ­Prussian Ministry of Justice was merged with Gürtner’s Reich Ministry of Justice in June  1934, Freisler became one of two Staatssekretäre and was put in charge of the Ministry’s ­criminal justice division. He remained in this position until 1942, when he became chief judge of the Volksgerichtshof (People’s Court), where he ruthlessly imposed death sentences on political opponents of the regime. Even in 1935, Freisler’s activities in the Ministry of Justice had revealed him as a dyed-in-the-wool Nazi activist who sought to radically ­transform Germany’s judicial system.37 It is therefore not surprising that Freisler’s speech presented a more ideological vision of Nazi penal policy than Gürtner’s. Whereas Gürtner had characterised Nazi penal reform as a conservative, law-and-order reaction to the supposed emasculation of criminal justice in the Weimar years, Freisler took the position that the regime’s penal reform agenda reflected a fundamental ideological conflict between liberalism and Nazism. While liberalism regarded individual freedom as the highest good and conceived of the state as a utilitarian organisation designed to facilitate individual self-realisation, Freisler argued, National Socialism had an organic understanding of the Volk (nation) as a ‘real organism’ and conceived of the individual as ‘a member of the nation whose life is dedicated to the fulfillment of his tasks in the national community’.38 As the Nazi state gave primacy to ‘the Volk’s right to life’, it viewed law not from the ‘perspective of the individual but from that of the collectivity’. The Volk’s ‘life-giving and life-preserving core’ was the Nazi movement, which was organised on the leadership principle and demanded total subordination from every member of the Volk. As a result, the Nazi state had no need for ‘formal guarantees of freedom’ and transformed the concept of rule of law (Rechtsstaatsidee) ‘from a formal into a material idea’.39 According to Freisler, the consequences of this ideological conflict for criminal law were clear. Whereas the liberal state regarded criminal law as ‘an emergency law to secure the fulfilment of the social contract by the individuals’ and placed great emphasis on the nulla poena sine lege principle to protect individual freedom, National Socialism conceived of the criminal law as the ‘instrument of the national community that serves the nation’s need for cleansing and protection’.40 Therefore, ‘magna carta needs of the individual … against the demands of sound popular sentiment [gesundes Volksempfinden] cannot exist. The maxim “nulla poena sine lege” is replaced by the watchword “Give the nation its right/law” [Dem Volke sein Recht]’. This primacy of the Volk also had implications for the administration of punishments. If, in the liberal world-view, the primacy of the individual led to criticism of the death 37 Gruchmann (n 9) 100–06; H Ortner, Der Hinrichter: Roland Freisler – Mörder im Dienste Hitlers (Göttingen, Steidl, 1995) 43–58, 77–96. 38 R Freisler, ‘Der Wandel der politischen Grundanschauungen in Deutschland und sein Einfluss auf die Erneuerung von Strafrecht, Strafprozess und Strafvollzug’ in Actes, 1a: 434–56, 441; English translation: Proceedings, 414–35, 420–21; also published as Der Wandel der politischen Grundanschauungen in Deutschland und sein Einfluß auf die Erneuerung von Strafrecht, Strafprozeß und Strafvollzug (Berlin, np, 1935). 39 Freisler speech, Actes, 1a: 442–44; Proceedings, 422–23. 40 Actes, 1a: 446; Proceedings, 424–25.

86  Richard F Wetzell penalty and a transformation of the prison in the direction of rehabilitation, National Socialism sought to restore the retributive function of punishment: prisoners were to atone for (sühnen) their infraction against the legal order through prison terms that represented a ‘considerable measure of pain’. Freisler also explicitly noted that the Nazi state had no qualms about imposing the death penalty on offenders who had ‘placed themselves outside the national community’.41 Although Freisler ended his speech with the conciliatory nod that recognising each state’s penal policy as a product of its political ideology would make ‘mutual understanding and respect the basis of cooperation’, his basic message of a fundamental ideological clash was unmistakable.42 The Penitentiary Congress’s third plenary lecture was delivered by Hans Frank, a highranking Nazi activist who was even more militant than Freisler. A party member since 1923, Frank had participated in the Beerhall Putsch, served as the Party’s attorney throughout the Weimar years, and in 1928 founded the Nazi Jurists’ Association (BSNDJ). As the Nazi Party’s top legal expert, Frank had expected to become Reich Justice Minister after the seizure of power. Disappointed when Hitler kept on Gürtner instead, Frank used his positions as head of the BSNDJ, Reich Minister without portfolio, and president of the newly founded Academy of German Law to interfere with the Reich Justice Ministry’s work. Although he never managed to gain the upper hand, Frank remained a constant thorn in Gürtner’s side, especially in the area of penal reform.43 Frank’s speech, delivered at a special session of the Academy of German Law convened in honour of the Congress, was ostensibly devoted to the topic of ‘international penal policy’. Yet, although Frank briefly touched on international crime, extradition agreements, and police cooperation, it was his comments on Nazi penal policy that attracted the greatest attention.44 They were provocative in at least three respects. First, Frank demanded that the academic study of criminal law must abandon the value-neutral scientific approach of the ‘liberal age’ in favour of research ‘in the service of the Volk’. Second, Frank explicitly articulated biological explanations of crime and the need for eugenic measures against criminals. Above the goal of protecting the national community against the criminal stood the goal of ‘liberating the body of the nation from criminal carriers of disease’ through eugenic measures. Finally, whereas Gürtner and Freisler had used the term ‘Volk’ rather than ‘race,’ the anti-Semitic Frank openly spoke of the Nazi state as a ‘racial’ state, insisting that ‘the notion of race ha[d] become a fundamental part of the German legal order’.45

41 Freisler speech, Actes, 1a: 444–54; Proceedings, 424–31. 42 Freisler speech, Actes, 1a: 455–56; Proceedings, 435. 43 D Schenk, Hans Frank (Frankfurt am Main, Fischer, 2006) 86–102, 117–31. 44 The Justice Ministry was worried about Frank’s role at the Congress, which was the subject of difficult negotiations. Gürtner refused Frank’s request to speak at the opening session and blocked his efforts to give a radio address. See BA, R22/1284, fols 158, 159, 163, 207, 269; R22/1285, fols 99, 101. Frank got his revenge by making incendiary public remarks at the welcome reception the night before the Congress opened, which were omitted in the Actes but reported by the London Times (‘Nazis and the Criminal’ The Times (19 August 1935) 9), which quoted Frank as saying: ‘that the National Socialist State knows no humanitarian scruples as far as the criminal is concerned … that the National Socialist jurist is a fanatical exponent of the principle of reprisal, yes, of intimidation’. 45 Frank, ‘Zwischenstaatliche Strafrechtspolitik’, Actes, 1b: 124–42; 130, 134–35; Frank’s speech was ­omitted from the English language Proceedings; a typescript of the introductory remarks by Kisch and Bumke, not included in the Actes, is preserved in BA, R22/1301, fols 26–42. Frank’s speech also published as: Zwischenstaatliche S­ trafrechtspolitik: Vortrag gehalten in der Festsitzung der Akademie für deutsches Recht anlässlich des 11. ­Internationalen Strafrechts- und Gefängniskongresses in Berlin am 21 August 1935 (Berlin, np, 1935).

Nazi Criminal Justice  87 In summary, although a number of commonalities between Nazi penal policy and the modern school’s transnational penal reform agenda existed, the speeches by Gürtner, Freisler and Frank minimised the significance of such continuities and presented Nazi penal policy as marking a fundamental break with the past. Yet each speaker characterised the nature of this break differently. The conservative Gürtner characterised Nazi penal policy as a turn from the supposedly soft-on-crime approach of the Weimar years to a more repressive, law-and-order approach; he therefore depicted even radical measures such as the use of analogy in criminal law as a way of closing a gap in the armour of criminal law. Freisler, by contrast, presented Nazi penal policy as the product of a sharp ideological conflict between Nazism and liberalism. He frankly acknowledged that liberalism’s primacy of the individual was being replaced with a new primacy of the Volk, and that this shift had profound consequences for the balance of individual rights and state power in the criminal justice system. Frank, finally, stressed the central role that biological explanations of crime, eugenic measures against criminals, and the category of race were going to play in Nazi criminal justice. The fact that all the speakers minimised continuities with the preceding reform movement and stressed the sharp break with the past was at least partially due to their being directed also at a domestic audience. After all, about 400 of the Congress’s 700 attendees were Germans, and all the speeches were disseminated as leaflets in Germany. Taken together, these speeches revealed a logical contradiction in Nazi penal policy. For even as Nazi penal policy explicitly sought a return to retributive justice, its understanding of criminals as biologically defective undermined the notion of individual moral responsibility.

An International Congress in Nazi Berlin Although the Congress did not provide any official opportunities to discuss the plenary speeches, several of the issues that they raised – the balance of individual rights versus social defence, of retributive severity versus humanisation, and the question of eugenic measures – were discussed in the Congress’s sections. Like its predecessors, the Berlin Congress was organised into four sections meeting concurrently – Legislation, Administration, Prevention and Youth – each of which had three questions on their agenda. The questions were selected well in advance,46 so that the Penitentiary Commission could solicit about a dozen written reports (rapports) on each question from experts (rapporteurs) representing a spectrum of countries.47 At the Congress’s section meetings, the discussion of each question began with an oral report by a designated rapporteur général, who summarised the written reports and offered his own recommendations for a formal ‘resolution’ on the question at hand. Five of the 12 rapporteurs généraux were Germans selected by the Justice Ministry, who had also had a hand in choosing the others.48 The sections then discussed the question and eventually voted on a resolution according to parliamentary procedure.

46 For the initial list of proposed topics, see ‘Tableau des questions, propositions et suggestions soumises a l’examen de la Commission en vue du Congrès de 1935’, UN Archives, S-0915-0010-15. 47 The development of the list of rapporteurs is documented in UN Archives, S-0915-0059-01. 48 See memos in BA, R22/1283, fols 149–50; R22/1284, fols 85, 116.

88  Richard F Wetzell If the rapporteur’s proposed resolution met with significant disagreement, an ad hoc committee was sometimes charged with drafting a resolution, which was then presented to the section for a vote. At the end of the Congress, the resolutions of the four sections were presented and submitted to a vote in plenary sessions. Most of the time – but, as we shall see, not always – the plenary session approved the resolutions of the sections by acclamation. By regulation, voting at the Congress took place by individual votes. While members of most national delegations did not necessarily vote the same way, the Nazi Jurists’ Association and the German Justice Ministry had settled on official German positions on each q ­ uestion, which were made binding on all German delegates, who therefore voted as one bloc on all questions.49 Since the over 400 German delegates outnumbered the approximately 300 foreign delegates, the counting of individual votes gave an advantage to the Germans, in the sections as well as the plenary session. As we shall see, this led to efforts to insist on voting by country. In 1935 the International Penal and Penitentiary Commission had 32 member states,50 all of which (except for British India, Chile and New Zealand) were represented at the Berlin Congress by official delegations.51 In the lead-up to the Congress, American and British members of the penal reform community raised concerns about Nazi Berlin as the venue. Sanford Bates, head of the US Bureau of Prisons and official American IPPC delegate, wrote to IPPC secretary van der Aa in June 1934 to express concern about ‘the degree to which persons of Jewish extraction would be welcome in Berlin in the summer of 1935’, but was reassured (after van der Aa had consulted Bumke, who checked with German government officials) that it is left to each country, in particular also to all foreign organizations … to select … the persons whom they regard as qualified … and that the foreign members of the Congress will certainly be treated in Germany with all customary international courteousness.52

Similarly, on the British side, in July 1934, Cecely Craven, the Secretary of the Howard League for Penal Reform, wrote to van der Aa and Alexander Paterson, member of the English Prison Commission and British delegate to the IPPC, to report that there has been considerable doubt in the minds of many of our members as to the possibility of their taking any part in the Congress if it is held in Berlin, in view of the existing regime in Germany and its methods of administering justice and of dealing with suspected persons and lawbreakers.

She also insisted that two conditions be met: full freedom for delegates to express criticisms of penal administration, ‘in Germany and elsewhere’; and unfettered freedom of the press to report on the proceedings. Although van der Aa replied that the ‘usual’ freedom of expression would be assured as would facilities and freedom for ‘duly accredited

49 For correspondence between Justice Ministry (RJM) and Waldmann (BNSDJ) and memos about a meeting between RJM and BNSDJ, see BA, R22/1285, fols 310–11, 327. 50 List of member countries in report on Commission’s 1935 session annuelle, Berlin, 15–17 August 1935, UN Archives, New York, AG-010 (IPPC), File S-0915-0007-03. 51 ‘Autres Délégués officiels’, Actes, 1b: 4–7. 52 Letters, Bates to van der Aa, 5 June 1934; Bumke to Aa, 8 August 1934; Aa to Bates, 14 August 1934: UN Archives, S-0915-0061-01.

Nazi Criminal Justice  89 c­ orrespondents of the German and foreign newspapers’, the Howard League decided to withdraw from the Congress because its chairman, Dennis Pritt, was declared persona non grata and barred from entry by the German government due to critical comments he had made in connection with the Reichstag Fire.53 Nevertheless, in the end, the two largest delegations were those from the United States (27) and Great Britain (31; down, however, from over 100 at the 1930 Prague Congress). Also well represented were the Scandinavian countries (with 21 delegates from Sweden, 10 from Finland and 9 from Denmark) as well as the Netherlands (20), Belgium (10) and ­Switzerland (9). From Southern Europe (Republican) Spain was represented with 14  delegates; (Fascist) Italy with only 9; and Portugal with 4. Most of Eastern Europe was represented with substantial delegations, including those from Romania (11), ­Czechoslovakia (9), Poland (8), Hungary (8) and Bulgaria (7). Among the European countries, the inordinately small size of the French delegation (3 – down from more than 10 at the 1930 Prague Congress) clearly demonstrates the reluctance of French officials and jurists to attend a congress in Nazi Berlin, although surviving correspondence also suggests that the official invitation sent to the French ended up misdirected, at the wrong ministry.54 Finally, there were a great number of small delegations from the rest of the world, including China, Japan, Mexico, Canada, most Latin American countries and several Middle Eastern countries (Iran, Iraq). The Soviet Union was not a member of the Penitentiary Commission and did not attend.55 Thanks to an unusually complete documentary record, the deliberations of the Berlin Congress are preserved in remarkable detail.56 As noted above, the four sections of the Berlin Congress had three questions each to consider. There were two questions that generated controversy and a third involving some sharp exchanges; for the rest of the questions, the Congress found it relatively easy to agree on resolutions.

A.  The Double-track System and Juvenile Justice To assess the place of Nazi penal policy in its transnational context, the questions on which easy agreement was reached are, of course, no less important than the controversial ones. While some of the consensually resolved questions were of marginal importance, several related to central parts of the reform agenda of the modern school of criminal law.

53 Letters, C Craven (Howard League) to Paterson, 23 July and 3 August 1934; Craven to van der Aa, 24 July and 3 August 1934; van der Aa to Craven, 2 August and 29 August 1934: UN Archives, S-0915-0061-01; on banned entry for Dennis Pritt, see Forsythe (n 1) 137. 54 Letters between van der Aa (IPPC) and A Mossé (Ministère de l’Intérieur, France), 25, 26 and 30 July 1935; letter from van der Aa to Bumke, 30 July 1935: UN Archives, S-0915-0060-05. 55 Liste des membres du Congrès, Actes, 1b: 9–42. 56 The Congress’s presentations and discussions took place in three languages (French, English and German) and were recorded by stenographers. For the five-volume Actes du Congrès everything (except for the plenary speeches by German officials) was translated into French. In addition to the Actes, the surviving record includes five issues of the trilingual Bulletin du XIe Congrès Pénal et Pénitentiaire International, published daily during the Congress, the Guide du XIme Congrès (including regulations and list of official delegates) and the Guide Spécial for Congress’s extensive social programme (UN Archives, S-0915-011-02). It is unclear whether the o ­ ne-volume English edition (Proceedings) was a translation of the French version or drew on the original multilingual stenographic transcripts.

90  Richard F Wetzell One of these signature questions was the Administration section’s question: ‘How must the execution of penalties restrictive of liberty [ie prison sentences] differ from the execution of measures of security involving deprivation of liberty?’ The question’s distinction between regular imprisonment and detention as a ‘security measure’ derived from the so-called ‘double-track’ compromise between the modern and classical schools of criminal law. While the modern school had originally called for indefinite sentences for habitual criminals, they had agreed to split this into a fixed prison sentence (based on the offence) and subsequent indefinite ‘security detention’ (based on the offender’s putative dangerousness) in order to satisfy the classical school’s insistence that punishments be based on retributive justice. The double-track approach was endorsed by mainstream reformers in democratic countries, such as Switzerland, as well as authoritarian ones, such as Fascist Italy, which adopted the double-track system in the Rocco Code of 1930, and Nazi Germany, which introduced it in the 1933 Habitual Criminals Law. Although the differentiation between ‘punishment’ and ‘security measures’ remained vague, the Congress adopted a resolution endorsing the double-track system, thus demonstrating that Fascist Italy’s and Nazi­ Germany’s introduction of security measures for habitual criminals reflected a broad consensus in the international penal reform movement.57 The Congress’s section on Youth also discussed a question that was central to the modern penal reform agenda: ‘Should juvenile courts be given the power to decide on the measures to be taken with regard not only to erring children and youths [ie those breaking the law] but also to children and youths in moral danger?’ At issue here was nothing less than whether ‘dangerousness’ could replace law-breaking as the criterion for the jurisdiction of juvenile courts. Although most penal reformers recognised that eliminating the requirement that a criminal offence had been committed would pose grave threats to civil liberty, in the case of juveniles many were willing to drop the requirement, allowing juvenile courts to commit an ‘unruly’ youth to a correctional home regardless of whether he or she had committed a criminal offence or merely appeared ‘morally endangered’. Although there were some differences of opinion, the Berlin Congress agreed on a resolution allowing juvenile courts to handle delinquent as well as ‘morally endangered’ youth, once again demonstrating a broad international consensus, including Nazi jurists, in favour of a central item on the modern school’s reform agenda.58

B.  Monster Trials In contrast to the consensus on the majority of questions, three questions elicited controversy. The first of these related to criminal procedure and was discussed in the Congress’s Legislation section: ‘What measures’, the question read, ‘can be recommended to shorten the so-called monster trials?’ The term ‘monster trials’ referred to lengthy trials i­nvolving

57 Question and resolution: Actes, 1b: 67–69, 85–86; discussion: Actes, 1a: 230–44, 253–55; Proceedings, 212–26, 236–39. On the Habitual Criminals Law see C Müller, Gewohnheitsverbrechergesetz (n 28). On the double-track system see Pifferi (n 1); P Garfinkel, Criminal Law in Liberal and Fascist Italy (Cambridge, Cambridge University Press, 2016) 418–20; U Germann, ‘Zweispurige Verbrechensbekämpfung. Kriminalpolitik und Gesetzgebung im transnationalen Diskurs’ (2009) 14 Rechtsgeschichte 84. 58 Question and resolution: Actes, 1b: 74–75, 91–92; discussion: Actes, 1a: 365–05; Proceedings, 345–86.

Nazi Criminal Justice  91 multiple defendants or multiple charges.59 The written reports on this question were divided over how far one could go in limiting defendants’ procedural rights to expedite these kinds of trials. When the section’s designated rapporteur, Gustav Wilke of the German Justice Ministry, proposed empowering trial judges ‘to reject any proposal made by the parties concerned that is not well-founded’ or ‘tends to drag out the trial’ and ‘to fix without appeal the time for pleading’, his proposals met with vigorous dissent from two foreign delegates.60 Jean Bastien, a lawyer at the Brussels Court of Appeals, and Geoffrey Bing, a barrister at London’s Inner Temple,61 criticised these proposals as encroachments on the rights of the defence and presented a joint counter-resolution. Bastien connected his critique to a broader attack on National Socialism: What one is trying to get us to admit … is that the independence of judges no longer counts – I am referring to specially authorized speeches heard at this Congress – that justice shall be submitted to what is called the will of the people, but which is only the will of the reigning faction in a place where no liberty of expression exists, so that even lawyers, having lost their independence and dignity, become the servants of this faction.62

Bastien’s intervention was followed by an equally spirited speech by Bing, who informed the section that: I and my English and American friends … do not agree that to shorten monster trials is in the interests of the state. We consider that far more damage was done to the judicial reputation of Germany by the recent condemnation of Kaiser and Klaus63 than was done by the [lengthy] trial of the Reichstag fire.

At this point Bing was interrupted by the chairman of the section, Vespasian Pella (­Romanian delegate and president of the International Bureau for the Unification of Penal Law) who asked him to ‘remain in his speech on a scientific basis and to express himself in an objective way’, after which Bing declined to continue.64 The tense situation created by this broadside against Nazi justice was defused by the need to adjourn for another meeting and Pella’s suggestion to form a committee that would draft a revised resolution, to which he appointed rapporteur Wilke as well as Bastien and Bing, among others. Surprisingly, this committee reached agreement on a compromise resolution, which was unanimously adopted by the section and approved by the plenary meeting. The revised resolution gave judges the power to limit the defence’s pleading but stipulated that the public prosecutor’s time must be limited to the same degree; it also gave judges in criminal trials the power to limit the presentation of evidence.65 Bastien and Bing’s attempt to link issues of criminal procedure to a critique of Nazi criminal justice had failed. 59 Section I, Second question: Actes, 1b: 61–62, 79–80. 60 Report of raporteur: Actes, 1a: 85–99; Proceedings, 77–90. 61 Actes, 1b: 27, 32. 62 Intervention by [J] Bastien: Actes, 1a: 101–03; Proceedings, 92–94. 63 I have not been able to identify the supposed ‘Kaiser and Klaus’ trial (the French version in the Actes speaks of ‘Keyser et Klein’). Bing is clearly referring to an abbreviated trial, in contrast to the drawn-out proceedings of the Reichstag Fire trial. 64 Intervention by [G] Bing: Actes, 1a: 103–05; Proceedings, 95–96. 65 Wilke intervention, reading of committee resolution, and section vote: Actes, 1a: 117–19; Proceedings, 107–09. Plenary vote: Actes, 1a: 511–20; Proceedings, 486–93.

92  Richard F Wetzell

C.  How to Treat Prisoners: Humanisation or Severity? The disagreements that emerged in the Congress’s second section, on Penal Administration, were not smoothed over so easily. Several delegates called the section’s first question the most important question of the Congress: Are the methods applied in the execution of punishments with a view to educating and reforming criminals (intensive humanization, favours granted, considerable relaxation of coercion in the progressive system) calculated to bring about the effects aimed at and are these tendencies ­generally advisable?66

The official rapporteur for this question was N Muller, an Amsterdam judge and secretary general of a Dutch prisoner’s aid society. In his oral report to the section, Muller noted that the written reports reflected two opposing tendencies: ‘a tendency to render humanization ever more intensive in view of the educational aim’ versus ‘a tendency to restrict humanization’ in order to stress the retributive and deterrent functions of punishment, which was particularly pronounced in the two German reports. Muller sought to bridge this gap with a proposed resolution stating, first, that the general application of humanisation ‘may have a good effect on the tranquil course of [punishment] … , but it has nothing or little to do with the education of prisoners’; and, second, that ‘penitentiary education for all prisoners is not a suitable penal motto’, whereas ‘penitentiary education applied only to a limited number of prisoners … is an extremely useful prison institution’.67 While Muller’s compromise resolution found support from the German delegates, it provoked disagreement from the defenders of humanisation and education in prisons. Alexander Paterson, head of prison affairs in the British Home Office and of the Congress’s British delegation, proposed a resolution that endorsed education for all prisoners. ‘The aim of the execution of penalties’, he insisted, ‘is the defence of society by social readaptation of prisoners’.68 In the ensuing discussion, Paterson’s defence of education for all prisoners was strongly supported by colleagues from Britain, America, Belgium, France, ­Czechoslovakia and Scandinavia.69 The sharpest critiques of the call for ‘severity’ in prison came from a Belgian and a French delegate. Adolphe Delierneux, director of the prison in Ghent, Belgium, who had authored one of the written reports,70 stated that: I know from experience what is hidden behind the labels: the ‘majesty of punishment’ … represent[s] only the resuscitation of the law of retaliation … In the beginning, it’s the strictest disciplinary regime – order, obedience, total, passive submission; in the end, it’s the [executioner’s] axe coming down … There is a struggle … between the ancient idea of revenge, dressed up in modern clothes, and the humanization of punishment.71

Whereas Delierneux had made only indirect reference to Germany, Jerome Ferrucci, a lawyer at the Paris Court of Appeals, launched a frontal attack on Nazi penal policy: In the course of the last decades … [t]he concern to reform and cure the delinquent has taken p ­ recedence over the concern to punish him. The opinions of the National Socialists are

66 Official

French text in: Actes, 1b: 47. by rapporteur Muller: Actes, 1a: 184–93; Proceedings, 168–77. 68 Intervention by Paterson: Actes, 1a: 194–95; Proceedings, 178–79. 69 Actes, 1a, 195–203, 217–18; Proceedings, 179–86, 199–200. 70 A Delierneux, ‘Rapport’: Actes, 3: 13–22. 71 Intervention by Delierneux: Actes, 1a: 207–09; Proceedings, 189–91. 67 Report

Nazi Criminal Justice  93 ­ iametrically opposed to these modern tendencies. In their view, the principles of retribution d and deterrence justify measures such as the systematic starvation of the prisoner, the progressive aggravation of punishments, and the continual humiliation of the prisoner … the number of prisoners detained in German prisons has doubled since 1930 … these numbers do not include the 29,000 prisoners in the various concentration camps … An international congress cannot discuss penitentiary problems without considering the legal and material situation of prisoners detained in the concentration camps … Among free men, representatives of modern law, there can be no doubt that the notion of vengeance is inadmissible in the penitentiary system.72

Ferrucci’s attack provoked a sharp reply from Kurt Waldmann, head of the academic department of the Nazi Jurists’ Association, who insisted that: ‘German penal law does not know the idea of vengeance. The concentration camps created in Germany are educational institutions … National-Socialist jurists know that the criminal … should be reintegrated into society as a reformed … person’.73 Waldmann’s claim that concentration camps were educational institutions was as disingenuous as his denial that Nazi penal policy had turned away from humanisation. Although his tone was combative, he falsely denied any difference of opinion. In substance, although not in tone, this approach typified the interventions by half a dozen German speakers, including law professor Franz Exner and Justice Ministry officials Edgar Schmidt and Ernst Schäfer, all of whom sought to downplay differences over humanisation and education in punishment.74 To draft a compromise resolution, the section president, Sanford Bates, director of the Bureau of Prisons and head of the US delegation, appointed a committee that included himself and Alexander Paterson (as proponents of humanisation) as well as Ernst Schäfer and Giovanni Novelli (as German–Italian proponents of severity), but left out the most vocal critics, Delierneux and Ferrucci.75 The committee’s compromise resolution omitted all references to humanisation, and endorsed education for all prisoners: The execution of penalties must not be confined to the imposition of punishment, but must also provide for the education and betterment of the prisoners. The methods applied … with a view to education and betterment are calculated to bring about the desired effects if they are applied within reason, without exaggeration and with due regard to the individuality of the prisoners.76

However, the reservations contained in the last sentence still bothered Delierneux, who proposed an amendment that endorsed education and therapy without any reservations by calling for ‘individualizing the treatment of prisoners on the basis of educational or therapeutic methods’ in every penitentiary institution.77 When the section, which was overwhelmingly composed of German delegates, defeated Delierneux’s amendment by a vote of 108 to 30, the Norwegian delegate Nissen submitted a motion requesting a roll-call vote in accordance with the Congress’s regulations. Section president Bates responded that he had never heard of such a request during previous congresses, but nevertheless agreed to hold 72 Intervention by Ferrucci: Actes, 1a: 225–27; Proceedings, 206–09. 73 Intervention by Waldmann: Actes, 1a: 229–30; Proceedings, 212. 74 Actes, 1a: 209–11 (Schmidt), 212–13 (Exner), 221–23 (Schäfer); Proceedings, 191–93 (Schmidt), 194–95 (Exner), 203–05 (Schäfer). 75 Actes, 1a: 223; Proceedings, 205. 76 Actes, 1a: 244; Proceedings, 227. 77 Actes, 1a: 245; Proceedings, 228.

94  Richard F Wetzell a roll-call vote. Bates then consulted with IPPC Secretary van der Aa, who happened to be present and explained that the regulations did allow roll-call votes recording individual votes by country, but added that, in his opinion, it was the majority of individual votes that ‘decide[d] in the last resort’.78 The ensuing roll-call vote resulted in 47 individual votes for the Delierneux amendment and 137 votes against it (including all 121 German delegates). The tally by country, however, revealed the opposite outcome: the amendment’s approval by 10 countries (United States, Britain, Canada, Belgium, France, Spain, Norway, Sweden, Estonia, Lithuania) versus nine who opposed it (Germany, Italy, Switzerland, the Netherlands, Hungary, Poland, Greece, China, Brazil). When Bates announced that the amendment was defeated, there was uproar among the section’s foreign delegates, and Bates promptly reversed himself. In the end, an impromptu compromise was adopted: that a short account of events in the section be submitted to the plenary session, and that the plenary session would not vote on the question.79 This is indeed what happened the next day.80 Although Bumke’s sleight of hand avoided an éclat in the final plenary session, the section’s acrimonious deliberations had revealed a sharp divide between the defenders of humanisation and prisoner education and the proponents of retribution and severity.

D.  Criminal Eugenics? Proposals for the Sterilisation and Castration of Criminals The second question that elicited great controversy at the Congress was the question whether criminal justice systems should authorise the sterilisation or castration of criminals.81 This question was discussed by the Congress’s third section, on Prevention. The written reports were sharply divided in their views. Five reports – the German, Danish, Finnish, Dutch and American reports – generally endorsed the sterilisation and castration of some criminals. Some were authored by well-known eugenicists including Arthur Gütt, chief of public health policy in the German Interior Ministry, and Paul Popenoe, head of the American Human Betterment Foundation. Three reports gave mixed responses: the Belgian and Hungarian reports endorsed the castration of sex offenders but rejected or ignored sterilisation; the Italian report would permit voluntary sterilisation but opposed compulsory sterilisation or castration. The British, French and Spanish reports, by contrast, rejected both sterilisation and castration, whether voluntary or compulsory.82 In the section meeting, the proponents of sterilisation and castration had an advantage because the rapporteur général was on their side. The report was delivered by François 78 English language version of the Congress’s regulations in BA, R22/1285, fols 517–19. Original French text: (1934) 4 Recueil de documents en matiere pénale et pénitentiare 3. Art 17 read: ‘The vote shall be taken by roll call in all cases where this is requested by not less than six members in the Sections and by not less than twenty members in the General Assembly. The votes shall be taken by country and arranged in alphabetical order’. 79 Actes, 1a: 246–53; Proceedings, 229–36; see series of drafts of this account and correspondence between Bates and van der Aa in: UN Archives, S-0915-61-02. 80 Actes, 1a: 527–33; Proceedings, 500–05. 81 Compare Marques (n 1) 161–66. 82 Full reports in Actes, 4: 1–102; summarised by rapporteur in Actes, 1a: 314–18; Proceedings, 294–98.

Nazi Criminal Justice  95 Naville, professor of forensic medicine in Geneva, whose views were quite representative of Swiss doctors, most of whom had endorsed therapeutic castration and eugenic sterilisation for over 30 years.83 Although Naville acknowledged that ‘some weight must be attached to the objections of those who draw attention to our imperfect knowledge of the laws of heredity and the personal effects of the operations’, he brushed these objections aside with the laconic assurance that ‘experts will give the most conscientious consideration to each particular case’.84 His endorsement of compulsory sterilisation and castration reflected the chilling extent to which many medical doctors had discarded any obligation to the individual patient in favour of the supposed interests of the community: As regards operations under constraint, I consider that laws which give men the right to kill or to sentence to life-long detention … cannot deny them the right to deprive an ill person of the power of procreation [through sterilization], when the exercise of that power might prove dangerous for his offspring or harmful to the community, or even of all possibility of sexual activity [through castration], when such activity might be dangerous either for the person concerned or anyone else. … The fact that castration is mutilation should not deter us, as its purpose is therapeutic.85

At the end of his report Naville proposed a resolution recommending, first, the sterilisation of criminals according to the same eugenic principles that applied to non-delinquent persons and, second, the castration of sex offenders based on ‘the favourable preventivetherapeutic results from castrations achieved in cases of sexual disorders with a tendency toward criminality’; both compulsory castration and sterilisation were to be integrated with other ‘security measures’ under existing law.86 In the ensuing discussion, Naville’s proposed resolution was warmly endorsed by all four Germans who spoke.87 By contrast, only two – a Czech and a Greek – of the nine foreign delegates participating in the discussion supported the proposed resolution,88 while the vast majority voiced serious objections. The critical faction, which included delegates from ­Britain, Spain, the Netherlands, Romania, Yugoslavia and Greece, argued that, first, current knowledge of heredity and of the side effects of sterilisation and castration was insufficient to justify the introduction of either measure;89 second, sterilisation was bad population policy because it would lead to a decrease in population without guaranteeing any benefits in crime reduction;90 and third, sterilisation was a eugenic rather than a penal measure and therefore had no place in the Penal Code.91 Finally, several delegates argued that sterilisation and especially castration violated human dignity. Thus Quintiliano Saldana, 83 On Swiss eugenics, see V Mottier and L von Mandach (eds), Pflege, Stigmatisierung und Eugenik (Zurich, Seismo, 2007); G Heller, G Jeanmonod and J Gasser, Rejetées, rebelles, mal adaptées: Debats sur l’eugenisme (Geneva, Bibliothèque d’histoire de la médecine et de la santé, 2002); T Huonker, Diagnose ‘moralisch defekt’ (Zurich, Orell Füssli Verlag, 2003); V Mottier, ‘Eugenic “Science” and the Swiss Trajectory into Moderniy’ in R Wecker et al (eds), Wie nationalsozialistisch ist die Eugenik? (Vienna, Böhlau, 2009). 84 Rapport by Naville, Actes, 1a: 313–27, 322; Proceedings, 293–308, 302. 85 Actes, 1a: 322–23; Proceedings, 302–03. 86 Actes, 1a: 326–27; Proceedings, 307–08. 87 Interventions by Gütt, Viernstein, Schlegel and Ristow: Actes, 1a: 328–32, 336–39, 340–41, 345–46; ­Proceedings, 309–13, 316–19, 320–22, 325–26. 88 Interventions by Vesela and Vlavanios: Actes, 1a, 344–45, 346–47; Proceedings, 324–25, 326–27. 89 Interventions by Jorgulescu and Bemmelen (Netherlands): Actes, 1a: 333–34, 343; Proceedings, 314–15, 323. 90 Intervention by Jorgulescu (Romania): Actes, 1a: 333; Proceedings, 313–14. 91 Interventions by Givanovitch and Dolenc (both Yugoslavia): Actes, 1a: 339, 342; Proceedings, 319, 322.

96  Richard F Wetzell director of the institute of criminology in Madrid, held that ‘a Congress which deals with the question of the “intensive humanization” in the execution of penalties should not consider the possibility of depriving delinquents of their humanity [through castration]’.92 When, prior to voting on amendments, section chair Ernst Delaquis, the IPPC’s treasurer, asked for a straw vote, by a show of hands, on whether the section wished to endorse the ‘Naville–Gütt’ system, which advocated not only voluntary but also compulsory ­sterilisation and castration, or the ‘Dolenc–Saldana’ system, which rejected castration and restricted sterilisation to cases of ‘organic deformation or mental disease’, the Naville–Gütt system was approved by a large majority.93 Since no one in this section seems to have thought of requesting a roll-call vote by country, the major issue was decided, and the section proceeded to vote on minor amendments to Naville’s proposed resolution. The only significant modification was the inclusion of a cautionary provision that ‘the national legislatures will have to guarantee … that compulsory castration and sterilization is undertaken with the greatest precaution only, and in proper proceedings which provide for a thorough investigation of the case by a committee of jurists and medical men’.94 Although there was no roll-call vote, it is certain that the ‘large majority’ in favour of sterilisation and castration was mostly composed of Germans, who greatly outnumbered foreigners in the section meetings. However, the Germans were not alone in favouring sterilisation and castration. As recent research has shown, eugenics was not a particularly National-Socialist phenomenon, but one that garnered significant support across the political spectrum and in a variety of countries, especially in Scandinavia, Switzerland and the United States.95 This international support was reflected in the Congress’s reports, which demonstrated that sterilisation and castration were also championed by American, Scandinavian, Swiss and Dutch experts. On the other hand, it was no accident that the opponents of these measures came from Britain, whose reserved attitude towards eugenics is well documented,96 as well as from Catholic countries, including France, Spain and Italy. Whether in Republican France and Spain or in Fascist Italy, the Catholic Church’s religious objections to eugenics, most clearly formulated in Pope Pius XI’s 1930 ‘Casti Connubii’ encyclical, exerted a powerful influence.97 Although no one from Italy spoke in the section, the report submitted by a prominent Fascist jurist, Silvio Longhi, rejected mandatory sterilisation and castration, expressing support only for voluntary sterilisation.98 Finally, we should note the opposition of delegates from Eastern Europe, especially Romania and Czechoslovakia. Even though there were important eugenics movements in both countries, as in the rest of Eastern Europe, they appear not to have succeeded in gaining the support of penal reformers.99 92 Actes, 1a: 344; Proceedings, 324. 93 Actes, 1a: 348–49; Proceedings, 328–29. 94 Amendment process: Actes, 1a: 350–61, Proceedings, 330–42; final resolution: Actes, 1a: 361, 341. 95 See A Bashford and P Levine (eds), The Oxford Handbook of the History of Eugenics (Oxford, Oxford University Press, 2010); S Kühl, For the Betterment of the Race (Basingstoke, Palgrave Macmillan, 2013); M Turda, Modernism and Eugenics (Basingstoke, Palgrave Macmillan, 2010); Wecker et al (eds) (n 83). 96 L Bland and L Hall, ‘Eugenics in Britain: The View from the Metropole’ in A Bashford and P Levine (eds), The Oxford Handbook of the History of Eugenics (Oxford, Oxford University Press, 2010); Freitag (n 1) 191–232. 97 On Spain, see Marques (n 1) 156–58. 98 On the Italian debates, see Marques, ibid, 149–50, 158–60. On Longhi, see Garfinkel (n 57) 465. 99 M Bucur, ‘Eugenics in Eastern Europe, 1870s–1945’ in A Bashford and P Levine (eds), The Oxford Handbook of the History of Eugenics (Oxford, Oxford University Press, 2010); M Turda and P Weindling (eds), Blood and Homeland (Budapest, CEU Press, 2007).

Nazi Criminal Justice  97

E.  A Tumultuous Concluding Session The stark differences of opinion over sterilisation and castration eventually burst forth in the final plenary session. The Congress’s plenary meeting usually just ratified the resolutions presented by the sections by simple acclamation; not in this case, however. When the plenary meeting, chaired by Bumke, came to the question of sterilisation and castration, Naville summarised the main points of the section’s resolution.100 Two delegates who had not been able to attend the section meeting, immediately spoke out against the resolution. VH Rutgers, a former Dutch Minister of Education, argued that a congress on criminal law should not pronounce on medical questions that were not definitively resolved. He also posed the rhetorical question of ‘what place the eugenic calculus [left] for divine providence’ and the ‘deference to human life and its elementary functions’ that religious belief demanded.101 With eerie prescience, he warned of a slippery slope from eugenics to euthanasia killings: ‘Will this action stop at children not yet born? Would it not be possible to imagine cases where the respect due to human life itself is no longer preserved?’102 The second speaker, Count Candido Mendes de Almeida, president of Brazil’s Council of Penitentiary Administration, opposed the resolution in the name of humanitarianism. Brazil’s penal legislation and practice, he explained, did not permit ‘any violation of the convicted person’; Brazil therefore opposed a measure that represented a ‘mutilation of the human body’. For this reason, he demanded a roll-call vote, recording the votes country by country, through a written request signed by 21 delegates (mostly from Latin America and Eastern Europe), as required by the Congress’s regulations.103 A roll-call vote was something that President Bumke, mindful of the previous day’s fiasco, was determined to avoid at all costs, and he therefore pleaded with Mendes de Almeida to withdraw his request.104 After two delegates, the Spaniard Quintiliano Saldana and the Romanian Nicolas Jorgulescu, submitted a formal amendment that sought to gut the resolution by removing all references to castration and severely restricting sterilisation,105 the head of the Romanian delegation, Vespasian Pella, came to Bumke’s aid by suggesting the following compromise: that the request for a roll-call vote be withdrawn but that members who had reservations about the resolution could notify the Bureau of the Congress, which would include a list of their names in the published proceedings.106 Overruling objections, Bumke seized on this compromise proposal and proceeded to a vote by a show of hands on the Saldana–Jorgulescu amendment, which was supported by only 29 delegates and thus defeated. This was immediately followed by a vote (by a show of hands) on the resolution itself, which was adopted by a large majority, since the Germans made up more than half the Congress’s delegates. The Secretary General then informed the assembly that about 30 delegates had submitted a card or paper indicating 100 Naville report to plenary meeting, Actes, 1a: 296–499; Proceedings, 472–74. 101 Intervention by VH Rutgers, Actes, 1a: 499–501; Proceedings, 474–77. 102 Actes, 1a: 500; Proceedings, 476. 103 Intervention by M de Almeida, Actes, 1a: 501–02; Proceedings, 477. The list of delegates who signed the petition for a roll-call vote is printed in a footnote in: Actes, 1a: 507; Proceedings, 482–83. 104 Remarks by President [Bumke], Actes, 1a: 502–04; Proceedings, 477–79; original German text: BA, R22/1301, fols 79–83. 105 Intervention by Gütt: Actes, 1a: 504–05; Proceedings, 479–80; Saldana-Jorgulescu amendment: Actes, 1a: 506; Proceedings, 481–82. 106 Interventions by Pella, Actes, 1a: 506–07; Proceedings, 482–83.

98  Richard F Wetzell that they had ‘reservations or objections’ in regard to the resolution.107 This list included delegates from Austria, Belgium, Spain, Portugal, much of Eastern Europe (Poland, Czechoslovakia, Romania, Latvia, Lithuania) and almost all Latin American countries represented at the Congress (Bolivia, Brazil, Chile, Peru, Venezuela).108 Although the list of objectors did not contain any British names, the opposition of the entire British delegation to the resolution had already been declared in the section. The French language proceedings record that, right after the vote: The President [Bumke] is noticing, to his regret, that several members are preparing to leave the hall. He does not know their motives, but would like them to know that they will miss particularly interesting moments, since we will have to deal … with all remaining [resolutions]. Thereafter, he is supposed to give his concluding address and would greatly regret … if all this would take place in a half-empty hall.

This remark suggests that a great number of delegates were leaving the meeting.109 With the exception of the humanisation question – where the plenary session was informed of the section’s failure to agree on a resolution110 – all remaining resolutions were passed by ­acclamation,111 and Bumke closed the Congress with a speech that concluded with a gratuitous mention of Hitler: ‘I express the hope that our Congress, according the wishes of our Führer, who honoured us with a telegram, may have success, that our foreign guests may leave us with many agreeable impressions’.112

Aftermath: International Criticism While almost 100 congress delegates, including more than 70 foreigners, participated in a one-week study tour of German prisons led by Gürtner and Freisler,113 critical articles began to appear in the international press, notably in Britain, the United States, Belgium, the Netherlands, Sweden, Switzerland, Austria, Czechoslovakia, Poland and Spain.114 Two days after the Congress, The Times of London, which had carried almost daily articles on its deliberations,115 wrote that the Congress had ended ‘in the atmosphere of confusion and haste which characterized it from the beginning’: Among foreign delegates who were dissatisfied with the conduct of the congress, the ensuing rush in the section work … was attributed in the first place to the … time taken up by the voluntary lectures of German Government spokesmen in defence of National Socialist ideas. The other main complaint was the overwhelming majority represented by the German delegation, who numbered some 450, whereas all the foreign delegates together did not total 300. This gave an absurdly 107 Actes, 1a: 509–11; Proceedings, 484–86. 108 The list of dissenting delegates is printed in a footnote in Actes, 1a: 511; Proceedings, 486. 109 Remarks by the President [Bumke], Actes, 1a: 511; paragraph omitted in Proceedings, 485. 110 Actes, 1a: 527–33; Proceedings, 500–05. 111 Actes, 1a: 511–27; Proceedings, 486–500. 112 Closing speech of President, original German text in Actes, 1a: 534–41; English translation in Proceedings, 505–11. 113 ‘Receptions, visites, excursions et voyage d’etudes’, Actes, 1b: 156–81; Proceedings, 592–615. 114 See press clippings and reports from German embassies collected by the Justice Ministry: BA, R22/1299 and R22/1300. The majority of foreign articles were neutral in tone, but at least three dozen articles from the countries listed were highly critical. 115 Unsigned articles ‘from our correspondent’ The Times (19–20, 22–24, 26–28, 30 August 1935).

Nazi Criminal Justice  99 ­ ictatorial position to the Germans and society groups, who were frankly out to push the new d Nazi ideas … The attention of the German public has been concentrated on a motion on sterilization passed … after Dr. Bumke … had refused a request for a vote by nation. It is greeted in the German Press as a great German victory.116

The following day, a group of delegates published a letter to the editor in the London Times to convey their disagreement with the Congress’s proceedings and Nazi penal policy. The five signatories – Sonja Branting (Stockholm), Jean Bastien (Brussels), Eduardo Ortega y Gasset (Madrid),117 Jerome Ferrucci (Paris) and Geoffrey Bing (London) – were lawyers in private practice, a position that freed them from the political considerations that constrained the foreign delegates who served in justice ministries and other official positions. Their letter read, in part: We regret the political turn taken by a congress whose object should be purely scientific. We – together, we believe, with a large proportion of the foreign delegates – are in complete ­disagreement with the bulk of the views imposed upon the congress by the German majority … the fact that the principal item on the agenda of the congress was a demand for the rejection of the reformatory method of penal administration shows the essentially reactionary character of the proceedings … We consider that the block vote of the German delegates forced upon the congress decisions which in no way represented world opinion.118

The critical Times article and letter to the editor greatly irritated the German authorities. Since some foreign delegates were still travelling with Gürtner and Freisler on the study tour of German prisons, the Germans were able to organise a rebuttal by asking the head of the American delegation, Sanford Bates, for a thank-you note that could be publicised. Bates obliged and excerpts from his note were published in the German press.119 No doubt similarly pressed into service, the head of the British delegation, Alexander Paterson, also wrote a letter to the editor of The Times. In this letter Paterson notably sidestepped all substantive issues and focused solely on defending Bumke. Since British delegates had outnumbered those of other countries at the London Congress of 1925, he argued, a similar predominance of German delegates at Berlin was ‘equally intelligible’. Bumke, he continued, ‘was as careful at Berlin’ as his British counterpart had been in London in 1925 ‘to endeavour to secure complete freedom for the expression of opinion from other countries’. Regarding the handling of the sterilisation question, Paterson insisted that Bumke had not refused any request for a nominal roll call. Almeida had withdrawn his request, and ‘a similar suggestion by Mr Saldana’ was supposedly ‘invalidated by lack of sufficient support’. Bumke, he closed, ‘during his five years as president of the International Commission has been so loyal a friend and colleague to us all that we are anxious his reputation for fairness and impartiality should be jealously safeguarded’.120 A similar rebuttal by van der Aa, the IPPC’s secretary general, was published in the German newspaper Der Angriff.121 116 ‘The Treatment of Criminals: Berlin Congress and Sterilization’ The Times (26 August 1935) 9. 117 Brother of J Ortega y Gasset. 118 Letter to the editor, ‘Penal Congress Meeting: German Delegates and Politics’ The Times (27 August 1935) 6. 119 Memo by Lehmann, 10 September 1935, and note by Bates, 28 August 1935, BA, R22/1299, fols 196–98. 120 Letter to the editor, ‘Penal Congress Meeting: Impartiality of the President’ The Times (30 August 1935) 8. Paterson and the English Prison Commission had fairly close relations with their German colleagues, having organised an official exchange with German prison administrators in 1934: see ‘Rapport sur l’echange des fonctionnaries pénitentiaires pratiqué par l’Allemagne et l’Angleterre’, UN Archives, S-0915-011-01. 121 van der Aa in Der Angriff (29 August 1935), quoted in Kolbe (n 18) 258.

100  Richard F Wetzell However, at least in the British press, it was Geoffrey Bing who had the last word on the Congress. In November 1935, The Times reported on a lecture that Bing had delivered at a meeting of the Howard League.122 According to The Times, Bing argued that ‘the real tragedy of the congress was to see Dr Bumke, President of the German Supreme Court, listening to the speeches made in justification of Nazi methods by Herr Goebbels, the Minister of Justice, and others’.123 Only a few years earlier, in 1930, Bing reminded his listeners, Bumke had helped to introduce the International Penitentiary Commission’s ‘Standard Minimum Rules’ for the treatment of prisoners with the remark that these were not sufficient, but only a beginning. Now, Bumke presided over an assembly where a German delegate could ask what it mattered if a few thousand prisoners suffered in a concentration camp … Possibly Dr Bumke and some of his colleagues had felt at the beginning that if they supported the regime they might be able to stem the flood; instead, they only gave a semblance of respectability and decency to a gathering such as the Congress. The lesson to be learnt was that nothing could be achieved by supporting, with a view to modifying, such a regime as the Nazi regime in Germany; the only way was to come out into the open and fight it.124

In retrospect, there can be little doubt that Bing’s judgement was the prophetic one.

Conclusion A.  The Nazi Legal Order: Law or Non-law? The dominant view in Anglo-American jurisprudence after 1945 held that Nazi ideology had so perverted accepted notions of justice that the Nazi legal order lacked the proper ­characteristics of law and could therefore be regarded as ‘non-law’.125 In post-war West Germany, too, a powerful current in legal-historical scholarship argued that the Nazis had ‘perverted’ the justice system and that the Nazi state should therefore be categorised as an Unrechtsstaat (a state defined by its negation of law and justice).126 By contrast, the fact that in 1935 several hundred foreign jurists congregated in Berlin to discuss penal policy with their German colleagues shows that they very much regarded the Nazi legal order as law rather than non-law. Their participation in the 1935 Congress is consistent with David Fraser’s finding, in his survey of the English language legal literature on Nazi law, that many, though by no means all, Anglo-American jurists held the view that ‘Nazi theory and practice fit clearly and ­identifiably into the mainstream of criminal law and criminological discourse’.127 122 The Howard League’s quarterly review also printed a polemically entitled account of the lecture: G Bing, ‘A Congress in Chains’ (1936) 2(3) The Penal Reformer 12. 123 ‘The Nazi Way with Prisoners: Impressions of Berlin Congress’ The Times (21 November 1935) 7. 124 Bing, ‘A Congress in Chains’ (n 122). 125 D Fraser, Law after Auschwitz (Durham, NC, Carolina Academic Press, 2005); S Lavis, ‘The Distorted ­Jurisprudential Discourse of Nazi Law: Uncovering the ‘Rupture Thesis’ in the Anglo-American Legal Academy’ (2018) 31 International Journal for the Semiotics of Law 745; see also Fraser (ch 2) and Lavis (ch 3) in this volume. 126 See, eg, Broszat (n 6); Redaktion Kritische Justiz (n 4). 127 Fraser (n 125) 100.

Nazi Criminal Justice  101 The fact that a critical mass of contemporary foreign jurists did not regard Nazi criminal law as having departed so radically from the mainstream of Western criminal law that it was beyond the pale of transnational cooperation and dialogue suggests that legal historians are well advised not to dismiss Nazi law as non-law but to study its role in Nazi Germany. Without a doubt, the Nazi legal order became increasingly radicalised over the course of the regime. Hence, periodisation is a crucial aspect of the study of the Nazi legal order. If Nazi legal transformations had not made Germany a pariah state in the eyes of most foreign jurists by 1935, that does not mean this did not happen later. However, when exactly the turning point in foreign legal opinion on Nazi Germany came remains to be determined. Considerable evidence suggests that it did not come with the Nuremberg Laws, which were passed a month after the Congress, in September 1935, but only with the outbreak of the war or perhaps even later.

B.  Nazi Criminal Law: Rupture versus Continuity Closely intertwined with the question of whether the Nazi legal order should be treated as law or non-law is the question whether Nazi law was primarily characterised by rupture or continuity with preceding German legal development. Whereas early German post-war accounts mostly stressed rupture, often with an apologetic agenda, German legal histories of Nazi law have been shifting towards an emphasis on continuity for some time. Early post-war versions of the continuity thesis focused on German legal positivism, an interpretation first advanced by Radbruch, which has now been almost universally rejected;128 later versions, as represented by Ingo Müller’s influential book Hitler’s Justice, stressed continuities in the conservative-authoritarian political attitudes of German judges.129 By contrast with both of these interpretations, the analysis of the Berlin Congress that I am advancing here draws on and develops the insights of a more recent strand of research, which focuses on the continuities between Nazi penal policy and the pre-1933 development of the German penal reform movement.130 Specifically, I have sought to demonstrate that key aspects of early Nazi penal reform were congruent with the reform agenda of the so-called modern school of criminal law, which dominated not only the German but also the transnational penal reform movement. These aspects included the introduction of indefinite security measures for habitual delinquents as well as a general shift from the criminal offence to the personality of the offender as the primary criterion for punishment, which Gürtner described as a central goal of Nazi penal reform. On the one hand, this congruence explains why the Congress was able to reach consensus on the majority of questions on its agenda. On the other hand, it was one of the Congress’s ironies that, presented with the perfect opportunity to connect Nazi penal policy to the transnational penal reform agenda, Gürtner, Freisler and Frank delivered strident speeches that minimised such connections. This tension between underlying continuities 128 See Morris (n 7). 129 I Müller (n 8). 130 See K Marxen, ‘Das Problem der Kontinuität in der neueren deutschen Strafrechtsgeschichte’ (1990) 73 Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 287; W Naucke, ‘NS-Strafrecht: Perversion oder Anwendungsfall moderner Kriminalpolitik?’ (1992) 11 Rechtshistorisches Journal 279.

102  Richard F Wetzell and an ideological rhetoric of radical change shows some interesting parallels with recent work on Italy, which has stressed the continuities between the Italian penal reform projects of the Liberal and Fascist eras, including the Rocco Penal Code of 1930.131 Nazi denials of continuities with the pre-1933 penal reform movement also reflected a concerted campaign of Nazi jurists to characterise the Weimar Republic’s penal reformers as a group of weak-kneed humanitarians who were responsible for the supposed ‘emasculation’ of criminal justice, which the Nazis vowed to reverse. In fact, the pre-1933 German and international penal reform movements had never been one-sided, but had long combined reforms that made criminal justice more lenient with reforms that made it more repressive. The Nazi criticism therefore presented a biased picture. It did, however, reveal the main thrust of Nazi penal reform, which was to abandon all humanitarian reforms and stress only repressive measures. This one-sided approach did indeed represent a break from the previous trajectory of the transnational penal reform movement. As we saw, this reorientation was endowed with different meanings by conservative jurists like Gürtner, who viewed it as a return to a tough-on-crime policy, and Nazi activists like Freisler and Frank, who saw penal reform as an ideological battleground in the Nazi fight for the primacy of the German Volk (Freisler) or the German race (Frank) over the individual.

C.  The Transnational Penal Reform Debate: Lines of Conflict and Consensus The Berlin Congress allows us to situate Nazi penal reform within the context of the transnational penal reform movement. The fact that the majority of issues before the Congress led to the passage of resolutions supported by consensus or by large majorities among the national delegations demonstrates a remarkable degree of cohesion and agreement among the transnational community of criminal jurists and prison officials. This transnational consensus included support for the double-track system that combined fixed prison sentences with ‘security measures’ of indeterminate duration,132 as well as support for allowing juvenile courts to impose educational-welfare measures not only on juvenile delinquents but also on ‘morally endangered’ youth who had not broken the law. In short, the Congress’s deliberations reflected a wide-ranging transnational consensus on a penal reform agenda focused on social defence and characterised by the individualisation of punishment based on the ‘dangerousness’ of the offender. Despite the strident rhetoric of some Nazi jurists, many of the penal reforms implemented by Nazi Germany in the regime’s early years were congruent with this transnational penal reform agenda. Two issues before the Congress gave rise to major controversies. The first was the question of what role humanisation and education should play in prison reform. Here the Nazi turn towards retribution and severity clashed with a long-standing tradition of prison reform steeped in humanitarianism and a belief in rehabilitation that was especially strong in Britain and the United States, but also in France, Belgium and Scandinavia. Nevertheless, this conflict was not one in which Nazi Germany found itself isolated; nor did it pit

131 See 132 On

Garfinkel (n 57); see also Garfinkel (ch 12) in this volume. the emergence of the dual-track system as a ‘European criminological approach,’ see Pifferi (n 1).

Nazi Criminal Justice  103 a­ uthoritarian regimes against democratic nations. For the delegations that endorsed severity in the treatment of prisoners were not limited to those of Fascist Italy and authoritarian Hungary and Poland, but also included two democratic countries, namely Switzerland and the Netherlands. Nevertheless, it is fair to say that the majority of democratic countries supported the humanitarian tradition of prison reform. The second issue that sparked controversy – eugenics – presents an even stronger case that penal policy disagreements at the Congress did not reflect a conflict between authoritarian and democratic camps. The sterilisation and castration of criminals was supported not only by delegates from Nazi Germany but also by their Scandinavian, Swiss, Dutch and American colleagues. The opposition came from the British delegation, but mostly from the delegations of Catholic countries and regions, including Austria, Spain, Portugal, Eastern Europe and Latin America; the influence of Catholicism was decisive even in Fascist Italy, which also rejected compulsory sterilisation. Thus, the Congress’s most controversial issue did not reflect a conflict between authoritarian and democratic countries. For although it is tempting to associate compulsory sterilisation with the violent biopolitics of Nazi Germany, in fact, the United States and the Scandinavian countries had strong eugenics movements and compulsory sterilisation programmes, some of which lasted into the 1960s.

D.  Criminal Law and Political Ideology What does our examination of the Berlin Congress tell us about the relationship between criminal law and political ideology? At first blush, the fact that most questions discussed at the Congress resulted in resolutions reflecting a consensus shared by democratic and authoritarian countries seems to suggest that ideology was not a major factor. But if we probe the subject further, we find that the agenda of the transnational penal reform movement was politically ambivalent. As mentioned before, the reformist goal of individualised punishment in the service of social defence comprised reforms that made punishment more lenient for some offenders (such as juvenile delinquents) even as it envisaged much harsher penal measures for other categories of offenders (such as habitual criminals). The reform agenda therefore contained both humanitarian emancipatory and highly repressive elements. It would be wrong to assume that the humanitarian elements were implemented by democratic countries, while the repressive ones were implemented by dictatorships. The reformist goal of individualising punishment in order better to protect society against crime was in many ways a ‘package deal’. For the logic of categorising offenders meant that the system was designed to separate less dangerous from more dangerous offenders and to treat them differently. Nevertheless, a case can be made that authoritarian regimes were willing to adopt more radical repressive measures than democratic countries. The eventual escalation of the use of death sentences in Nazi Germany would fall into this category. Likewise, authoritarian regimes were willing to go further in eliminating due process guarantees, as illustrated by Nazi Germany’s abolition of the ban on the use of analogy in criminal law. In this sense, Nazi criminal law represents an extreme case that reveals the dangers that were inherent in the transnational penal reform agenda. Criminal law is always a balancing act between repressive measures designed to protect society against crime and due process guarantees designed to safeguard the rights of the individual. Since the modern school of criminal

104  Richard F Wetzell law called for more interventionist measures than the classic nineteenth-century penal codes, those due process guarantees became even more important. In the hands of political regimes that placed the welfare of the ‘national community’ (usually defined to exclude political, social or ‘racial’ enemies of the people) above individual rights and human dignity, the modern school’s reform agenda could be used to create a criminal justice system that imposed the most terrible repression. It would be nice if we could take comfort in the thought that such a radicalisation of the penal reform agenda could only occur in authoritarian political regimes such as Nazi Germany. Yet as James Whitman has demonstrated, even the Nazis’ injection of race into criminal law, through the criminalisation of marriage between Jews and gentiles in the infamous Nuremberg Laws of 1935 had a parallel in American anti-miscegenation laws, which Nazi jurists explicitly drew on in drafting their own legislation.133 More generally, as Laurence Lustgarten has shown, there are, in fact, many ‘unsettling and controversial areas of analogies and connections between Nazi policies in a particular area and those adopted in liberal states’.134 In that sense, the study of Nazi criminal law in its transnational context should be of interest not just to students of legal history but to anyone who cares about criminal justice in our own time.

133 JQ Whitman, Hitler’s American Model: The United States and the Making of Nazi Race Law (Princeton, NJ, Princeton University Press, 2017). 134 L Lustgarten, ‘“A Distorted Image of Ourselves”: Nazism, Liberal Societies and the Qualities of Difference’ in N Singh Ghaleigh and C Joerges (eds), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Legal Traditions (Oxford, Hart Publishing, 2003) 114.

5 Criminology and the Rise of Authoritarian Criminal Law, 1930s–1940s MICHELE PIFFERI*

Introduction: The Historiographical Problem of Continuity or Rupture This chapter is focused on the possible relations between criminological theories and the rise of authoritarian criminal law systems (in particular in Fascist Italy and Nazi Germany), as well as on their historiographical interpretations. I am particularly interested in investigating, with the method of comparative legal history, the rhetoric and arguments employed by criminologists and legal historians to emphasise the clear connections between scientific criminology and Fascist or Nazi laws, for example, to stress the line of continuity between Franz von Liszt’s theories and concentration camps or, on the contrary, to underline the deep theoretical and teleological divide between criminological ideas and totalitarian penal regimes. At the outset it is worth clarifying what the concept of criminology will be understood to mean in the chapter. I do not refer to criminology as a purely empirical social science discipline, different from criminal law. I rather refer to criminology as the new methodological approach to the core issues of criminal law and penology advocated by many reformers between the 1870s and the Second World War. To give a few examples, Raffaele Garofalo’s Criminology1 was about his theory of temibility and the problem of free will, Josè Ingenieros’s Criminologia2 dealt with comparative sentencing methods and individualisation of punishment, Frederick Howard Wines’s The New Criminology3 suggested the indeterminate sentence system in the United States, and Maurice Parmelee’s Criminology4 was a comprehensive rethinking of the criminal justice system. Their idea of criminology, of its goals and its field of research, was strictly related to the comprehensive administration of criminal justice. I will use the word in this same sense. The continuity approach openly unveils the inherent contradictions and risks of the ­criminological reform movement since its very beginning in the last decades of the * I would like to thank Lucia Zedner, Pietro Costa, and Stephen Skinner for helpful comments on an earlier version of the manuscript. Thanks are also due to the anonymous reviewers as well as the colleagues who attended the London conference for their thought-provoking questions and comments. 1 R Garofalo, Criminology (Boston, Little Brown & Co, 1914). 2 J Ingenieros, Criminologia (Madrid, Daniel Jorro, 1913). 3 FH Wines, The New Criminology (New York, Press of the James Kempster Printing Co, 1904). 4 M Parmelee, Criminology (New York, Macmillan, 1918).

106  Michele Pifferi nineteenth century and highlights the dangers of repressive exploitations, without any counter-limits, of penological ideas based on special prevention, dangerousness, categorisation of offenders and distinctions between normal and abnormal, corrigible and incorrigible criminals.5 This view, however, neither accounts for the variety of criminological positions between the 1920s and 1940s, nor clarifies why criminological ideas, which were internationally shared and long debated, took on such an authoritarian vein only in some countries and not in others, nor, finally, provides insightful explanation of the different contribution (or perversion) of criminology in Fascist Italy and Nazi Germany. Even though it is surely important to identify some ‘authoritarian traits’ whose roots can be found in penal liberalism and whose legacy still casts a shadow on current legal systems, an overemphasis on continuity runs the risk of oversimplifying the complex role played by criminology in reforming penal systems. Moreover this interpretation, on the one hand, tends to conceal the limits and failures of liberal penal systems grounded on classical retributive principles, while, on the other, to play down the penal achievements brought by the criminological movement (for example, in terms of suspended sentences, conditional discharge, probation or parole, juvenile offenders, the treatment of the mentally abnormal and recidivists).6 Historians have deeply investigated the roots of the rise of totalitarianism in the aftermath of the First World War, demonstrating the many factors that led to or contributed to those phenomena, which were neither unexpected nor mysterious consequences of a complex cluster of social, economic and political circumstances.7 Legal historians have also studied the formation and characteristics of authoritarian penal systems, stressing their elements of continuity or rupture with the previous liberal models.8 Within this debate, an even more specific and problematic question concerns the degree of involvement (not to say of responsibility), of the Italian Positivist School in the formation of the Fascist

5 See, eg, J Renneberg, Die kriminalsoziologischen und kriminalbiologischen Lehren und Strafrechtsreformvorschläge Liszts und die Zerstörung der Gesetzlichkeit im bürgerlichen Strafrecht (Berlin, Veb Deutscher Zentralverlag, 1956) 102–18; D Döllin, ‘Kriminologie im “Dritten Reich”’ in R Dreier and W Sellert (eds), Recht und Justiz im ‘Dritten Reich’ (Frankfurt am Main, Suhrkamp, 1989); more recently L Lustgarten, ‘“A Distorted Image of Ourselves”: Nazism, “Liberal” Societies and the Qualities of Difference’ in C Joerges and N Singh Ghaleigh (eds), Darker Legacies of Law in Europe. The Shadow of National Socialism and Fascism over Europe and its Legal Traditions (Oxford, Hart Publishing, 2003); N Rafter, ‘Criminology’s Darkest Hour: Biocriminology in Nazi Germany’ (2008) 41 The Australian and New Zealand Journal of Criminology 287. 6 See L Radzinowicz, ‘Cesare Beccaria and the English System of Criminal Justice: a reciprocal relationship’ in Atti del Convegno Internazionale su Cesare Beccaria (Torino, Accademia delle Scienze, 1966) 66. 7 See generally R Evans, The Coming of the Third Reich (London, Allen Lane, 2003); GL Mosse, The Crisis of German Ideology: Intellectual Origins of the Third Reich (New York, Grosset & Dunlap, 1964); R De Felice, Le interpretazioni del fascismo (Roma–Bari, Laterza, 1995); E Gentile, Le origini dell’ideologia fascista, 1918–1925 (Bologna, il Mulino, 1996). 8 On the Italian experience see, eg, M Sbriccoli, ‘Le mani nella pasta e gli occhi al cielo. La penalistica italiana negli anni del fascismo’ in M Sbriccoli, Storia del diritto penale e della giustizia. Scritti editi e inediti (1972– 2007) (Milano, Giuffrè, 2009); G Neppi Modona and M Pelissero, ‘La politica criminale durante il fascismo’ in L Violante (ed), Storia d’Italia. Annali 12: La criminalità (Torino, Einaudi, 1997); L Lacchè (ed), Il diritto del Duce. Giustizia e repressione nell’Italia fascista (Roma, Donzelli, 2015); for an insightful discussion of this historiography see MN Miletti, ‘Giustizia penale e identità nazionale (A proposito di Il diritto del Duce. Giustizia e repressione nell’Italia fascista, a cura di Luigi Lacchè, Roma, Donzelli, 2015)’ (2016) 45 Quaderni fiorentini per la storia del pensiero giuridico moderno 683. On criminal law in Nazi Germany see, eg, G Werle, Justiz-Strafrecht und polizeiliche Verbrechensbekämpfung im Dritten Reich (Berlin, de Gruyter, 1989); T Vormbaum, ‘Strafjustiz im Nationalsozialismus. Ein kritischer Literaturbericht’ (1998) Goltdammers Archiv für Strafrecht 1; T Vormbaum, A Modern History of German Criminal Law (Berlin, Springer, 2014) 172–208; J Vogel, Einfluss des Nationalsozialismus auf das ­Strafrecht (Berlin, BWV, 2004).

Criminology and Authoritarian Criminal Law  107 penal regime, and of German (bio)criminology in Nazi laws. Apart from the considerable differences between these two developments, which are examined below, the idea of authoritarian criminal law systems as a reception and implementation of criminological theories has been questioned as too simplistic and requiring more distinctions as well as a more in-depth historicisation.9 To avoid the limits of both exceptionalism (namely the idea that the rise of totalitarian legal regimes was an unexpected and unforeseeable parenthesis)10 and continuity, different criminological approaches of the 1920s–40s are analysed in this chapter with the purpose of differentiating those reforms whose enactment was attributable to the criminological movement from those which were the peculiar expression of a totalitarian radicalisation.11 To understand the influence of criminological theories on authoritarian regimes and vice versa, to realise how much of von Liszt’s, Ferri’s or Jiménez De Asúa’s original ideas were really embodied or incorporated by Fascist and Nazi laws, the very notion of criminology should be analysed within a broader framework. Not only should the weight of the overall political context on the jurisprudence and legislation of that period be taken into consideration, but criminology itself should be understood as part of more general legal orders that changed deeply as a consequence of the authoritarian turn. Rather than being conceived as an autonomous discipline separate from criminal justice, criminology was thought of as a new methodological and theoretical approach to reform criminal justice in many respects: it was part and parcel of what Nicola Lacey has defined ‘criminalisation’,12 and should be historicised as such. Therefore, when both criminal law and penal systems were affected by radical political and philosophical changes, criminology too changed its scope and approach. In particular, given the reformers’ purpose to change fundamentals of criminal responsibility and penology between the 1870s and the 1930s, the effect of criminology should also be analysed and historicised in its interplay with the constitutional tenets of the Rechtsstaat, which were also reframed by authoritarian regimes and impinged upon key issues of criminal justice such as, for example, the separation of powers, the principle of legality, judges’ powers and limits, and the purpose of punishment.13 Thus, the ‘radicalisation’ of criminology as a totalitarian repressive tool implies a deep divide between Ferri’s or von Liszt’s positions 9 See especially, on the Positivist School, E Musumeci, ‘The Positivist School of Criminology and Italian Fascist Criminal Law: a Squandered Legacy?’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015) 56–58; Miletti (n 8) 698–703; F Colao, ‘“Un fatale andare”. Enrico Ferri dal socialismo all’“accordo pratico” tra fascismo e Scuola positiva’ in I Birocchi and L Loschiavo (eds), I giuristi e il fascino del regime (1918–1925) (Rome, Roma TrE-Press, 2015) 155–57. On German criminology, see eg, RF Wetzell, Inventing the Criminal: A History of German Criminology, 1880–1945 (Chapel Hill, NC, University of North Carolina Press, 2000); M Löhnig, ‘Die v Liszt-Schule im totalitären Kontext’ in A Koch and M Löhnig (eds), Die Schule Franz von Liszts. Sozialpräventive Kriminalpolitik und die Entstehung des modernen Strafrechts (Tübingen, Mohr Siebeck, 2016). 10 Compare MA Livingston, ‘Criminal Law, Racial Law, Fascist Law: Was the Fascist Era Really a “Parenthesis” for the Italian Legal System?’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015). 11 On the combination of continuity and radicalisation as the key to interpreting Nazi criminal law and ­criminology see Vormbaum, A Modern History (n 8) 179 (in relation to criminology) and 261–64. 12 See N Lacey, ‘Historicising Criminalisation: Conceptual and Empirical Issues’ (2009) 72 Modern Law Review 936; N Lacey, ‘Legal Constructions of Crime’ in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (Oxford, Oxford University Press, 2007). 13 On the fruitfulness of this approach see N Lacey, ‘The Rule of Law and the Political Economy of Criminalisation: An Agenda for Research’ (2013) 15 Punishment & Society 349.

108  Michele Pifferi and Fascist or Nazi use of some of their ideas, especially in terms of limits, both theoretical and empirical, to the notions of individualisation of punishment, social dangerousness and prevention. The breaking point lies in the constitutional balance between criminology and rule of law, which was reshaped differently by the two totalitarian regimes. Even though this tension between individual safeguards and social defence was an inherent characteristic of the criminological movement since its very beginning, by the late 1920s and early 1930s it arose as the fundamental issue jeopardising the core of fundamental rights and the bases of liberal democracy.14 The chapter is divided into three parts. First, it briefly analyses different arguments used by criminologists, critically reconsidering the assertion of a connection between their theories and the rise of authoritarian regimes. Secondly, it pinpoints some significant differences that make the interpretation of a legacy of criminology to penal totalitarianism more problematic. Thirdly, it suggests shifting the perspective towards a constitutional level and argues that the weakening of the separation of powers was maybe one of the less evident but most critical problems regarding the relation between criminology and the rise of penal authoritarianism.

Rhetoric and Discourses: The Many Voices of Criminology There are at least four different layers or perspectives that should be considered in­ analysing criminologists’ discourses about the role of their own discipline in totalitarian penal regimes. First, there is the viewpoint of the more fervent supporters of scientific criminology, such as Enrico Ferri or (in a less enthusiastic tone) Aschaffenburg, who saw in the coming of authoritarian systems the last chance to give effect to their proposed reforms, which until then they had not been politically capable of implementing.15 Beyond the veil of enthusiasm for what the regimes were finally enacting, we cannot disregard the fear of criminologists that they would be overtaken by new political trends in instituting reforms. Only by stressing the importance of their theoretical legacy (namely the ascription as Fascist or Nazi reforms of the conceptual revolution of criminal law that they had inaugurated since the 1880s, in particular with regard to measures of security), could the Positivist School have survived the rise of these regimes without disappearing. Secondly, the viewpoint of authoritarian scholars (such as Alfredo Rocco,16 Georg Dahm and 14 See A Overbeck, Grenzen der Individualisierung im Strafrecht. Rektoratsrede (Freiburg, Druckerei, 1928); Q Saldaña, ‘Punishment and Measure of Security (A Sequel to the Congress of Brussels)’ (1927) 4 Revue internationale de Droit pénal 26; H Drost, Das Problem einer Individualisierung des Strafrechts (Tübingen, ­ JCB Mohr, 1930); H Drost, Das Ermesses des Strafrichters. Zugleich ein Beitrag zu dem allgemeinen Problem Gesetz und ­Richteramt (Berlin, Carl Hehmann, 1930); H Drost, ‘Autoritäres Strafrecht?’ (1933) 4 Recht und Leben. Wochen-Beilage der Vossichen Zeitung; F Exner, ‘Development of the Administration of Criminal Justice in Germany’ (1933) 24 Journal of the American Institute of Criminal Law and Criminology 248. See M Pifferi, ­Reinventing Punishment. A Comparative History of Criminology and Penology in the Nineteenth and Twentieth Centuries (Oxford, Oxford University Press, 2016) 232–36. 15 See E Ferri, ‘Fascismo e Scuola Positiva nella difesa sociale contro la criminalità’ (1926) 36 La Scuola Positiva 241; G Aschaffenburg, ‘Neue Horizonte?’ (1933) 24 Monatsschrift für Kriminalpsychologie und Strafrechtsreform 162. 16 A Rocco, ‘Relazione a SM il Re del Ministro Guardasigilli (Rocco) presentata nell’udienza del 19 ottobre 1930-VIII per l’approvazione del testo definitivo del Codice Penale’ in Codice penale e codice di procedura penale (RD 19 ottobre 1930-VIII) preceduti dalle rispettive Relazioni ministeriali (Turin, Utet, 1930) esp 3–23.

Criminology and Authoritarian Criminal Law  109 Friedrich Schaffstein,17 or Wilhelm Sauer)18 should be taken into consideration. Their argument (especially at the beginning of the authoritarian turn) was to present the repressive change in criminal policy as a cluster of measures aiming not at overturning the entire system but rather at achieving the purpose of social defence put forward by criminology, by substituting an efficient punitive system for the old-fashioned and detrimental approach of penal individualism. However, in contrast to any criminological idea, they theorised the need to re-establish retributivism to redress the imbalance of the penal system, which leaned too far towards special prevention. Thirdly, there was the perspective of (more or less) conservative criminal law scholars (such as Jerome Hall19 and Heinrich Drost),20 or of Social Democratic reformers (such as Gustav Radbruch).21 Already in the late 1920s and 1930s, these thinkers had perceived the risks that were hidden behind the humanitarian and rehabilitative side of criminological proposals, and warned of the danger of abandoning the principle of legality (nulla poena sine lege) and the separation of powers in the name of the individualisation of punishment. Finally, there is the perspective of those ardent advocates of criminological reforms influenced by positivist theories (such as Luis Jiménez De Asúa22 or Leon Radzinowicz),23 or those more moderate and non-positivist criminologists (such as Hermann Mannheim and Max Grünhut),24 who fled from totalitarian regimes and, after their fall, tried to draw a clear distinction between the right (and maybe still relevant) claims of criminology and their inappropriate, ‘dark’ exploitation by totalitarianism. All these perspectives offer different interpretations of the relation between criminology and Fascist or Nazi criminal law systems; all of them are partly true and partly influenced by a specific rhetorical purpose. To understand the role played by criminological theories in the formation of authoritarian penal systems, these opinions should be compared and critically examined. If, for example, we analyse Ferri’s essay on ‘Fascism and the Positive School in the Social Defence against Criminality’, published in 1926, we can easily recognise that his rhetorical effort distorts the truth and disguises the differences between Rocco’s draft penal code and positivist ideas. Ferri’s thesis is that between Fascism and the Positivist School there is a relation of ‘­apparent antagonism but final consensus’ and that, even though Fascism originally imposed itself as an anti-positivist movement, there was a theoretical as well as practical agreement on the most important issues.25 These affinities could be summarised in four main points. 17 G Dahm, ‘Autoritäres Strafrecht’ (1933) 24 Monatsschrift für Kriminalpsychologie und Strafrechtsreform 162; G Dahm and F Schaffstein, Liberales oder autoritäres Strafrecht? (Hamburg, Hanseatische Verlagsanstalt, 1933). 18 W Sauer, ‘Criteri del giudice nell’applicazione della pena per una lotta efficace contro il reato’ (1939) 10 Rivista di diritto penitenziario 610. 19 J Hall, ‘Nulla poena sine lege’ (1937) 47 Yale Law Journal 165. 20 Drost, ‘Autoritäres Strafrecht?’ (n 14); Drost, Das Problem einer Individualisierung (n 14). 21 G Radbruch, ‘Autotitäres oder soziales Strafrecht?’ [1933] in G Radbruch, Gesamtausgabe (ed A Kaufmann) vol 8, Strafrecht II (Heidelberg, Müller Verlag, 1998). 22 L Jiménez De Asúa, ‘El derecho penal totalitario en Alemanya y el derecho voluntarista’ (1947) 7 El Criminalista 63. 23 L Radzinowicz, The Roots of the International Association of Criminal Law and their Significance. A Tribute and Re-assessment on the Centenary of the IKV (Freiburg, Max-Planck-Institut für Ausländisches und Internationales Strafrecht, 1991). 24 See R Hood, ‘Hermann Mannheim (1889–1974) and Max Grünhut (1893–1964)’ in J Beatson and R ­Zimmermann (eds), Jurists Uprooted: German-Speaking Emigré Lawyers in Twentieth Century Britain (Oxford, Oxford University Press, 2004); see also C Bernoth, ‘Max Grünhut’ in M Schmoeckel (ed), Die Juristen der Universität Bonn im ‘Dritten Reich’ (Köln, Böhlau, 2004). 25 Ferri (n 15) 241.

110  Michele Pifferi The first was the strong reaction against the overemphasis on individualism characterising the classical liberal school. From the very beginning the adherents to the Positivist School (and more broadly to the international criminological movement) stated that it was necessary to establish a new balance between individual guarantees and the right of society to be protected from crimes. Many fundamentals of penal liberalism (such as the rights of the defendant – in dubio pro reo, – presumption of innocence, right to appeal, right to remain silent, trial by jury) were questioned because of their inefficacy, inconsistency and unfairness in relation to the real purpose of criminal law, which was that of social defence. According to Ferri, rather than the rights of the individual against the state, the highest needs of the social body had to be reaffirmed. Accordingly, the cornerstone of Fascism, namely the primacy of the state over the individual, was certainly consistent with this theory.26 Ferri’s second point was the substitution of the notion of legal responsibility for that of moral responsibility: according to him, social defence could not depend on moral guilt because, by so doing, the more dangerous subjects (lunatics, ‘abnormal delinquents’, criminals with psychological diseases) avoided punishment by reason of their incapacity. Whoever commits a crime should be considered responsible regardless of their intent, because what really matters is their dangerousness. The individual dangerousness inferred from both the offence and the personality of the offender should be the measure of any criminal sanction, a general notion encompassing both punishments and measures of security. In this sense the notion of ‘universal responsibility’ for all of the criminals asserted by an idealist Fascist philosopher such as Giuseppe Maggiore was similar.27 Ferri’s third key point was the priority given to prevention over repression: he clearly indicates that Fascism had quickly carried out those reforms that the Positivist School had unsuccessfully tried to implement in the previous 40 years through scientific and political propaganda. The fourth point stressed by the Italian criminologist was that, by shifting the prison administration from the jurisdiction of the Ministry of the Interior to that of the Ministry of Justice, Fascism was in line with the positivist demand for individualisation of punishment to be realised under the jurisdiction of the judiciary and not the administrative branch of government. Even in the draft codes of criminal law and criminal procedure, Ferri appreciated the adoption of many measures, which had been demanded by the adherents to his School for years, such as, for instance, the introduction of measures of security, the abolition of the jury and indeterminate sentences for habitual offenders.28 Ferri was certainly right. Fascism enacted measures that the international criminological movement (and not just the Italian Positivist School) had claimed for decades and that had never been applied in Italy. Nonetheless, those same measures were not a characteristic trait of the Fascist penal system alone, nor can they be considered authoritarian solely because of their implementation by an authoritarian regime. Many of those reforms had been enacted since the late-nineteenth century in many states without being labelled ‘authoritarian’; on the contrary, they were presented as a sign of progress and a step forward towards a more modern and humanitarian penal system. The so called dual-track system, 26 Ferri’s favourable opinion on the reintroduction of the death penalty in the Rocco Code, after his previous abolitionist position, can be interpreted on this basis: see E Tavilla, ‘Ordine biologico e ordine morale. Appunti sulla riflessione criminologica italiana in tema di pena di morte (sec XIX)’ (2016) 10 Historia et ius (paper 25) 9. 27 G Maggiore, ‘Attualismo e responsabilità legale’ (1924) 34 La Scuola Positiva 365. 28 See Colao (n 9) 151–54; L Radzinowicz, Adventures in Criminology (London, Routledge, 1999) 22–24.

Criminology and Authoritarian Criminal Law  111 namely ­measures of security in addition to punishment, for instance, had been discussed as a peculiar European method to deal with dangerous offenders since the 1880s, and had been adopted, among others, in the Norwegian Penal Code of 1902 and in the Prevention of Crime Act of 1908 in the United Kingdom.29 Indeterminate sentencing, not only for dangerous and ‘unreformable’ offenders, had been the ordinary system in the United States since the 1890s.30 The idea of (and the need for) preventive justice had characterised all the international penological debate since the 1880s, stirred up by the spectre of increasing recidivism.31 Finally, and more generally, many reformers, who certainly cannot be defined as authoritarian (for example, the Belgian Adolphe Prins32 and Roscoe Pound33 in the United States), had been openly criticising penal individualism and its implications since the last decades of the nineteenth century. Each of these points was a tenet of criminological theories, but none of them can be considered a vehicle of authoritarian changes in criminal law, unless we consider the entire criminological movement as authoritarian or totalitarian. The case of Ferri’s effort ‘to arrange an accommodation, genuine or opportunistic, or both’ with the new regime and to build ‘a bridge between bygone positivism and the ruling Fascist legal establishment’34 reveals the weakness of arguments based on the idea of a criminological matrix of totalitarian criminal justice in Italy. Ferri’s essay on ‘Fascism and the Positive School’ ‘contained contradictions which could not be satisfactorily sorted out and the more he tried to do it the more strained and disingenuous his attempt appeared to be’.35 The potential exploitation of the principles of individualisation and social defence as a repressive means by totalitarian regimes, especially against political offenders, exacerbated the ambiguities that had characterised penal welfarism since its beginnings in the nineteenth century. Even purpose-oriented penal theories, in addition to the systems of special prevention and social defence that were the cornerstones of criminological movements between the nineteenth and twentieth centuries, turned out to be fertile ground in which totalitarianism could easily take root. However, significant theoretical distinctions between pre- and post-authoritarian criminology, as well as the impact on criminal law of the great political divide between liberalism and totalitarianism,36 cannot be overlooked if we want to avoid the risk of an overly simplistic and superficial assessment of the complex contribution of the multifaceted criminological movement to penal modernity. As argued, Nazism and Fascism did not break with the tradition of penal liberalism but represented a sort of ‘radicalisation’ and ‘syncretism’ of ideas that were already embedded 29 Pifferi (n 14) ch 6. 30 See SJ Barrows (ed), The Indeterminate Sentence and the Parole Law (Washington, Government Printing Office, 1899); E Lindsey, ‘Historical Sketch of the Indeterminate Sentence and Parole System’ (1925) 16 Journal of the American Institute of Criminal Law and Criminology 9. 31 See, eg, P Marchetti, ‘Le “sentinelle del male”. L’invenzione ottocentesca del criminale nemico della società tra naturalismo giuridico e normativismo psichiatrico’ (2009) 38 Quaderni fiorentini per la storia del pensiero giuridico moderno 1009. 32 A Prins, La défense sociale et les transformations du droit pénal (Brussels, Misch et Thron, 1910). 33 R Pound, ‘The Causes of Popular Dissatisfaction with the Administration of Justice’ (1906) 29 Annual Report of the American Bar Association 395. 34 Radzinowicz, Adventures (n 28) 20. 35 ibid 22. 36 See P Costa, ‘Lo “Stato totalitario”: un campo semantico nella giuspubblicistica del fascismo’ (1999) 28 Quaderni fiorentini per la storia del pensiero giuridico moderno 61.

112  Michele Pifferi in legal culture.37 Rocco plainly explained that the new Code did not adhere to any of the opposing criminological schools, but, being grounded ‘on the real needs of collective life, that is of social demands and political opportunities and conveniences’, the reformed Code ‘had taken from each school only what was good and true in them’.38 Fascist ideologists and jurists had no purpose creating a new logical and theoretically consistent legal system, but rather had the intent of forging a system that, by combining different theories, could satisfy the deep needs of society and the state.39 The dilemmas and contradictions of criminology that had arisen since its origin gradually undermined the bases of penal liberalism and weakened the fragile equilibrium of certainty in the law and the individual guarantees on which it rested. Nonetheless, it would be misleading to trace the cause of totalitarian penal systems to criminological theories.40 Politically totalitarian regimes exploited the most authoritarian side of social defence and compounded the crisis of penal individualism, but they went well beyond the proposals of criminological movements. As Radzinowicz noted, on the ‘road to catastrophe’, the Soviets and the Nazi legislators (but the same can be said for Italian Fascism) imported and ‘ruthlessly expanded’ certain ideas put forward by the Positivist School or thematised by the International Union of Penal Law, such as the state of danger, measures of social protection, and measures of security: as he wrote, ‘it is painful to note how the two “Evil Empires” shared in the spoils of some of the end-products of the modern criminological doctrine’.41 If there were inherent perils in the theories of reformers such as von Liszt, Ferri, Prins and van Hamel, there were also essential differences between totalitarian criminal law and criminological theories.

The Divide Between Positivist Criminology and Totalitarian Penal Systems The dividing line between the claims of reform in criminal law and penology put forward by adherents to scientific criminology since the 1870s (expressed in many international prison congresses, as well as the bulletins of the International Union of Penal Law and other specialised journals and publications) and the tenets of totalitarian penal systems, concerns key points of criminological theory. A few examples can illustrate this. The kind of individualisation adopted by the Rocco Code was very limited compared with the more extreme demand put forward by radical reformers at the turn of the twentieth century.42 As Rocco wrote when presenting the final draft of the Code, he introduced judicial and administrative individualisation ‘with the greatest caution and prudence possible’, giving 37 T Vormbaum, ‘Il diritto penale nazionalsocialista’ in T Vormbaum, Diritto e nazionalsocialismo. Due lezioni (Macerata, EUM, 2013) 41–42; Vormbaum, A Modern History (n 8) esp 205–08 and 259–64; L Ferrajoli, Diritto e ragione. Teoria del garantismo penale (Rome, Laterza, 1996) 259; Sbriccoli, ‘Le mani nella pasta’ (n 8) 1009–10. 38 Rocco (n 16) 9. 39 ibid. 40 T Stäcker, Die Franz von Liszt-Schule und ihre Auswirkungen auf die deutsche Strafrechtsentwicklung (Baden-Baden, Nomos, 2012) 151–60. 41 Radzinowicz, The Roots (n 23) 91. 42 P Garfinkel, Criminal Law in Liberal and Fascist Italy (Cambridge, Cambridge University Press, 2016) 448–70 suggests interpreting the Rocco Code as the final and more sophisticated example of what he defines the moderate social defence approach, which was different from Ferri’s radical positivist theory.

Criminology and Authoritarian Criminal Law  113 the judiciary a broader discretion to adjust any rigidity of the law (by means of mitigating and aggravating circumstances) and to control and preside over the execution of sentences. But he clearly asserted that, ‘avoiding the excesses of the principle of individualisation’ he rejected ­indeterminate sentencing, which represented a real contradiction, because either ­punishment is determined or it is not punishment.43 The Nazi criminal law system espoused the idea of a predisposition to delinquency rather than the effect of the social environment,44 and it was authoritarian but not social (in Radbruch’s terms). As the individual surrendered himself entirely to the racially characterised nation-state, the personality of offenders, their classification and their individualised treatments were completely neglected in favour of a political conception of every crime as a violation of vital community interests, and a criminal law that emphasised the offence rather than the offender.45 According to Radbruch, the core starting point of criminology since Lombroso’s theories, namely the centrality of criminal man over crime, was denied. Moreover, both the Italian Fascist Code and the Nazi scholars neglected Ferri’s idea of legal responsibility based on the social dangerousness of offenders rather than on their free will: ‘the notion of penal legal responsibility’, as Rocco pointed out in his report, based on individual mental capacity and the consciousness and voluntariness of action, ‘will continue to dominate today, as it has dominated for centuries, the system of our penal legislation’.46 Similarly Sauer, describing in 1939 the criteria that should be followed by German judges in deciding punishments, emphasised the importance of considering the criminal intention of the offender. Sauer remarked that the new German realistic concept of guilt kept together the traditional past-oriented notion of responsibility and the modern future-oriented idea of prevention, or, in other words, the moral condemnation of malice and the offender’s subjective social d ­ angerousness.47 This notion of responsibility harmonised and synthesised previous contrasting ideas in a way that not only combined classical retribution and positivist individualisation of punishment, such as was suggested by among others Raymond Saleilles,48 but also epitomised Nazism’s determination to overcome theoretical disputes and build an entirely renovated penal system founded on completely different, and often not coherent, philosophical tenets, consistent with the project of a new Nazi legal order (Rechtserneuerung).49 The purpose of reformation is usually almost completely rejected by Nazi jurists,50 in line with the conviction that 43 Rocco (n 16) 22. 44 See A Lenz, ‘Kriminogene Disposition und Struktur’ in A Elster and H Lingemann (eds), ­Handwörterbuch der Kriminologie und der anderen strafrechtlichen Hilfswissenschaften, vol 2 (Berlin, Verlag von Walter de Gruyter, 1936). 45 See Radbruch, ‘Autoritäres oder soziales Strafrecht?’ (n 21) 232–33; G Radbruch, ‘Strafrechtsreform und Nationalsozialismus’ in G Radbruch, Gesamtausgabe (ed A Kaufmann) vol 9, Strafrechtsreform (Heidelberg, CF Müller Juristischer Verlag, 1992) 332. 46 Rocco (n 16) 5, 13–14. 47 Sauer (n 18) 612. 48 R Saleilles, The Individualization of Punishment (Boston, Little Brown & Co, 1911) 275–76. 49 On the contradictions of this pattern of responsibility attribution, based on an ethical notion of guilt for the criminal’s way of life regardless of philosophical disputes about free will and, at the same time, oriented towards a biologically grounded aim of social security, see the discussion between Filippo Grispigni and Edmund Mezger collected in F Grispigni and E Mezger, La riforma penale nazionalsocialista (Milan, Giuffrè, 1942). 50 See JW Jones, The Nazi Conception of Law, Oxford Pamphlets on World Affairs 21 (Oxford, Oxford University Press, 1939) 29; G Rusche and O Kirchheimer, Punishment and Social Structure (New York, Russell & Russell, 1939) 191 (ch XI ‘New Trends in Penal Policy Under Fascism’ is one of the chapters written by Otto Kirchheimer and added to Georg Rusche’s original manuscript).

114  Michele Pifferi crime is caused by structural and organic inclination: elimination of the offender, who is conceived of as an enemy of the community and a traitor, as well as preventive police measures against dangerous (categories of) individuals overshadowed reformers’ previous goals of special prevention and reintegration.51 Ideas of free will and wilfulness were considered conditions of guilt, and crime and criminal intent were viewed as ‘the main object of the offensive action of the authorities’,52 also because any liberal and rationalistic distinction between law and morality was denied.53 According to the key notion of Willensstrafrecht, namely the crucial ­importance of intentionality in criminal law, in a totalitarian state any deterministic approach implying the bad influence of society or external factors upon individual character was rejected.54 The idea of criminal responsibility was based on the notion of the offender as a member of the national community (Volksgemeinschaft), and of crime as a violation of a social obligation, a betrayal of the duty of fidelity to the community and, therefore, a wilful self-exclusion from it.55 By committing a crime (especially a serious one), the criminal freely decides not to follow his destiny as a fellow of the community, reveals his a-sociality, and his dangerousness, and the penalty therefore simply and cruelly makes visible the rupture of the social-racial tie between individual and community (conceived as an ethnic entity).56 As Roland Freisler pointed out at the International Congress of Criminology held in Rome in 1938, Nazi Germany not only did not waive punishment in its traditional meaning (as many criminologists claimed),57 but on the contrary, elevated the retributive value of punishment to the moral meaning of atonement and, moreover, considered the punishment a value judgement about the offender by the community.58 According to the evaluations of Radbruch and Sauer (the former an opponent of Nazism, the latter a supporter of it), Nazi criminal laws represented a conservative step back from, rather than a development of, criminological theories. In this sense, the position of Hans Frank against ‘the confusions of the so-called psychoanalysts, Marxists, and flatterers of the criminal world’, which are to be deplored and considered as ‘ridiculous aberrations of

51 M Dürkop, ‘Zur Funktion der Kriminologie im Nationalsozialismus’ in U Reifner and BN Sonnen (eds), Strafjustiz und Polizei im Dritten Reich (Frankfurt, Campus Verlag, 1984) 105. 52 O Kirchheimer, ‘Criminal Law in National-Socialist Germany’ (1939) 8 Studies in Philosophy and Social Science 444. 53 On Nazi morality embodied in law see R Gross, ‘Guilt, Shame, Anger, Indignation: Nazi Law and Nazi Morals’ in AE Steinweis and RD Rachlin (eds), The Law in Nazi Germany. Ideology, Opportunism, and the Perversion of Justice (New York, Berghahn Books, 2013). 54 See Rusche and Kirchheimer (n 50) 184. 55 See W Gleispach, ‘Willensstrafrecht’ in A Elster and H Lingemann (eds), Handwörterbuch der ­Kriminologie 1069; K Klee, ‘Il nuovo codice penale svizzero e il diritto penale del Terzo Reich’ (1939) 10 Rivista di diritto penitenziario 922. 56 See M La Torre, La ‘lotta contro il diritto soggettivo’. Karl Larenz e la dottrina giuridica nazionalsocialista (Milano, Giuffrè, 1988) 326–34; M La Torre ‘A National-Socialist Jurist on Crime and Punishment’: Karl Larenz and the so called “Deutsche Rechtserneuerung”’ (1994) 25 Rechtstheorie 57. 57 See F Puglia, Il diritto di repressione (Milano, tipografia del commercio, undated [but after 1882]) 13; E Hafter, ‘Pena e misura di sicurezza’ in Per il Cinquantenario della ‘Rivista Penale’ fondata e diretta da Luigi Lucchini (Città di Castello, Tip. dell’Unione Arti Grafiche, 1925) 237; P Dorado Montero, ‘Rapport présenté sur la première question’ in Actes du Congrès Pénitentiaire International de Washington – octobre 1910. Rapports sur les questions du programme de la section de la législation pénale et de la section des questions pénitentiaires, vol 2 (Groningen, Bureau de la Commission pénitentiaire internationale, 1912) 67. 58 R Freisler, ‘L’esperimento delle misure di sicurezza in Germania’ in Atti del I Congresso Internazionale di ­Criminologia vol 1, Relazioni generali e discussioni (Rome, Tipografia delle Mantellate, 1939) 187.

Criminology and Authoritarian Criminal Law  115 a former time’, seems to confirm the divide between positivist criminology and totalitarian criminal law.59 Such a divide could be summarised in the difference between the paradigm of the ‘­criminological type’ of offender and the paradigm of the ‘normative type’ of offender.60 With the Nazi Tätertyp (type of offender) theory, von Liszt’s key idea of punishing the criminal rather than the crime was turned in a different, and according to him indefensible, direction: the offender was not examined as an individual, in order to find the best rehabilitative or neutralising treatment, but was evaluated in terms of his capability of being reintegrated into the community. The offender was assessed and described as a public enemy, a public danger and his typification revealed both his guilt for the criminal act in a retributive way, and his guilt for his overall lifestyle.61 The paradigm of the normative type of offender, one of the most innovative theories of Nazi bio-criminology, was strictly intertwined with the ideology of the national community and was used to provide scientific legitimisation for the marginalisation and extermination of harmful groups.62 Even though both Ferri and von Liszt aimed at substituting the offender’s criminological qualities for his crime, they were not able to identify those qualities other than through the analysis of the criminal act, nor to eliminate a typology of offences in favour of a typology of offenders. No radical shift from crime to criminal was concretely realised and positivist criminologists remained anchored to a liberal platform, grounded on the nullum crimen principle and the idea that the offence was the prerequisite symptom of any character-based individualisation of punishment. Nazi jurists elaborated normative types of offenders not on the basis of criminals’ individual bio-psychological nature, but according to both the definition of crimes formulated by the legislator and the legal conscience of the national community. The criminal type elaborated by Nazi jurists was considered ‘the shadow of the legal definition of crime’63 or its soul, as it was neither a psychological or character-based type nor a criminological type, but a normative type, related to the criminal act, namely a category that was hidden within the norm and had to be gathered by the judge, in his capacity as the voice of sound ­popular s­ entiment.64 59 H Frank, ‘Problemi di diritto penale e dell’esecuzione penale’ (1938) 9 Rivista di diritto penitenziario 426. 60 See, eg, G Guarnieri, Il delinquente tipo (Milan, F.lli Bocca, 1942); AA Calvi, Tipo criminologico e tipo normativo d’autore (Padua, Cedam, 1967); M Frommel, ‘Die Bedeutung der Tätertypenlehre bei der Entstehung des § 211 StGB im Jahre 1941’ (1980) 35 Juristen Zeitung 559; K Marxen, Der Kampf gegen das liberale Strafrecht: eine Studie zum Antiliberalismus in der Strafrechtswissenschaft der zwanziger und dreissiger Jahre (Berlin, Duncker & Humblot, 1975) 208–11. 61 See E Mezger, ‘Die Straftat als Ganzes’ (1938) 57 Zeitschrift für die gesamte Strafrechtswissenschaft 675. 62 J Simon, ‘Kriminalbiologie und Strafrecht von 1920 bis 1945’ in H Kaupen-Haas and C Saller (eds), ­Wissenschaftlicher Rassismus. Analysen einer Kontinuität in den Human- und Naturwissenschaften ­(Frankfurt, Campus Verlag, 1999) 244–45; see also A Baratta, Positivismo giuridico e scienza del diritto penale. Aspetti teoretici e ideologici dello sviluppo della scienza penalistica tedesca dall’inizio del secolo al 1933 (Milan, Giuffrè, 1966) 64–66. 63 G Dahm, Der Tätertyp im Strafrecht (Leipzig, Theodor Weicher, 1940) 37; see also the review by G Bettiol (1940) Rivista italiana di diritto penale 462. According to the Nazi jurists who theorised the Tätertyp, specific categories of offender should be identified with their offences: they are not considered as individuals who, due to varying criminogenetic factors which should be examined, ended up committing a crime, but they are and embody (inherently, organically, in their essence and soul) a specific type of offender (eg, according to Nazi criminal law, a violent offender or a criminal damaging the national community). This theory was debated and questioned even by other Nazi jurists; see P Bockelmann, ‘Aussprache’ (1941) 60 Zeitschrift für die gesamte Strafrechtswissenschaft 417. 64 See E Mezger, ‘Tatstrafe und Täterstrafe, insbesondere im Kriegsstrafrecht’ (1941) 60 Zeitschrift für die gesamte Strafrechtswissenschaft 361. On the role of the judge in the Nazified penal system, see H Henkel, Strafrichter und Gesetz im neuen Staat. Die geistigen Grundlagen (Hamburg, Hanseatische Verlagsanstalt, 1934); and H Henkel, Die

116  Michele Pifferi Moreover, while positivist criminological types were essentially preventive types oriented towards special prevention, the Nazi normative types were both repressive and preventive, encompassing not only preventive measures but also repressive and retributive ­punishments.65 In a totalitarian regime, there should be no distinction between perpetrator and crime: the subject, who is conceived of not as an autonomous individual but exclusively as a living and active member of the ethical state, either spiritually conforms to the fundamental values of the state, or can be punished because of what he is (or is not) within the Nazi community, because of his guilt not for a specific act but for his whole way of living (Lebensführungsschuld), that is, his being a member of the legal community with an impoverished and degenerate legal conscience.66 If we look at the Rocco Code, and above all at the Nazi criminal laws, what Ferri tried to celebrate as a victory of his School seems rather to be a reversion to a retributive, repressive rationale of punishment. Many tenets of criminology were betrayed, and measures that had been thought of to facilitate the reformation of the criminal were transformed into methods of bare neutralisation or elimination. It is true that penological and criminological reforms had always been characterised by an ambiguous swing between social defence and reformation of the criminal, but totalitarian criminal law did more than simply exploit the darker side of criminology: it distorted and changed it deeply. The Nazi law of 28 June 1935, by modifying §2 of the German Criminal Code, dismantled the principle nullm crimen sine lege and replaced it with the new nullum crimen sine poena, allowing the judge to punish whatever act deserved to be punished according to the ‘people’s sound feeling’ (gesundes Volksempfinden) and allowing analogy.67 It may represent one of the worst episodes of penal totalitarianism and, even though the Supreme Court (Reichsgericht) showed ‘a remarkable restraint in the use of §2 in contrast to the practice of the lower courts’,68 it broke a limit that had never been broken in the modern era of legality. Criminology had nothing to do with that law. Jiménez De Asúa pointed out that such a voluntarism distorted von Liszt’s (and a more generally criminological) idea that the criminal rather than the crime should be punished, because it looked not at the personality of the offender but at their criminal intent, as it was revealed by external behaviours and facts.69

The Constitutional Fallout of Criminology My last point concerns the constitutional effect of criminological theories on the separation of powers, the gradual erosion of this principle, and its consequences on the rise of ­authoritarian regimes. My argument is that this is the least visible but most ­problematic Unabhängigkeit des Richters in ihrem neuen Sinngehalt (Hamburg, Hanseatische Verlagsanstalt, 1934); G Dahm, ‘Richtermacht und Gerichtsverfassung im Strafrecht’ (1941) 60 Zeitschrift für die gesamte Strafrechtswissenschaft 287. 65 See G Bettiol, ‘Azione e colpevolezza nelle teorie dei “tipi” di autore’ in G Bettiol, Scritti giuridici, vol 2 (Padua, Cedam, 1966) 535; on Bettiol’s criticism of Fascist and Nazi criminal law see G Marinucci, ‘Giuseppe Bettiol e la crisi del diritto penale negli anni Trenta’ (2008) 37 Quaderni fiorentini per la storia del pensiero giuridico moderno 325. 66 E Wolf, Vom Wesen des Täters (Tübingen, Mohr, 1932). 67 See Gleispach (n 55) 1070–71. 68 Kirchheimer (n 52) 448–52. 69 Jiménez De Asúa, ‘El derecho penal totalitario’ (n 22) 113.

Criminology and Authoritarian Criminal Law  117 outcome of the criminological movement. By rethinking the allocation of sentencing powers in order better to adjust punishment or treatment to the personality of the offender, criminologists undermined the principle nulla poena sine lege, broadening the discretion of the judiciary and, above all, the jurisdiction of the (prison) administration over individual freedom. This is proved, first and foremost, by the debate on judicial or administrative sentencing powers that stood at the core of the international criminological movement for decades. This can be seen, for instance, in the discussion, which involved both courts and scholars in the United States, of the role given to prison boards by indeterminate sentence laws,70 or in the proposal of the late 1930s of a ‘disposition tribunal’.71 Other contributions to this discussion were, on the one hand, the proposal for individualising criminal procedure in order to give the judge the concrete means to investigate the entire life of the accused and form a reliable opinion about their character72 and, on the other, the European dispute over the judicial or administrative nature of security measures and the need to judicialise the execution of the sentence, in which evaluations and decisions on dangerousness, reformation, or long-lasting neutralisation of convicts were at stake.73 All these measures, in different ways, impinged on the principle of separation of powers, whose constitutional rigidity with regard to punishment was deeply affected and altered by criminology. The rise of authoritarian regimes took advantage of this weakened constitutional framework in criminal law as a reaction against or an exacerbation of it. In the early 1930s in Germany the penal and penological problem took on a clear constitutional approach. Drost criticised the overemphasising of the principle of individual prevention because of its neo-inquisitorial effects with an overly wide discretion given to courts and executive officers to the detriment of both legal certainty and penal uniformity.74 An advocate of the principle of legality, he stressed the need to define boundaries and limits to the individualisation of punishment, and warned against the increasing application of fluid legal concepts to diagnose offenders’ dangerousness and foresee their rehabilitation, which were leading to the cancellation of ‘the boundaries between law-making and application of the law’ and aimed to cancel even those ‘between justice and administration’.75 As Drost remarked, the separation of powers was vanishing, and ‘the Rechtsstaat was on the point of being transformed into a social administrative state (sozialen Verwaltungsstaat)’.76

70 Pifferi (n 14) ch 4. 71 See N Cantor, ‘A Disposition Tribunal’ (1938) 29 Journal of the American Institute of Criminal Law and ­Criminology 51; H Mannheim, The Dilemma of Penal Reform (London, George Allen and Unwin, 1939); SB Warner and HB Cabot, Judges and Law Reform (Cambridge, MA, Harvard University Press, 1936); SB Warner and HB Cabot, ‘Changes in the Administration of Criminal Justice During the Past Fifty Years’ (1937) 50 Harvard Law Review 583. 72 See B Franchi, ‘Il principio individualizzatore nell’istruttoria penale’ (1900) 10 La Scuola Positiva 641; E Florian, ‘Sulla natura giuridica di talune nuove facoltà del giudice penale’ (1910) 1 Rivista di diritto e procedura penale 737. 73 See C Stoos, ‘Zur Natur der sichernde Massnahme’ (1911) 8 Monatsschrift für Kriminalpsychologie und ­Strafrechtsreform 368; F von Liszt, ‘Die “sichernden Maßnahmen“ in den drei Vorentwürfen’ (1910) 1 ­Österreichische Zeitschrift für Strafrecht 3; see also the reports on the 4th Question at the Ninth International Penal and Prison Congress held in London in 1925 in Actes du Congrès Pénitentiaire International de Londres, Aoút 1925, Rapports sur les questions du programme de la première section: Législation, II (Groningen, Bureau de la Commission ­pénitentiaire international, 1925) 337 ff. 74 Drost, Das Problem einer Individualisierung (n 14) 21; Drost, Das Ermesses des Strafrichters (n 14) 199. 75 Drost, Das Problem einer Individualisierung (n 14) 22. 76 ibid.

118  Michele Pifferi The prevailing aspiration to individualise norms demanded the abandonment of the old liberal notion of freedom from the state and implied the search for a new balance between freedom and social ties, between the individual and the community. Modern criminal policy, as Drost summarised, existed in a state of conflict: on the one hand, the widening of judicial discretion for the sake of individualisation, and on the other, the legal constraints of arbitrariness in favour of individual rights. Criminal policy pressed for a prevailing reforming approach. Conversely, the ideas of the Rechtsstaat embodied the principle of limits.77 The preventive ideal came into constitutional conflict with the principles of the Rechtsstaat and triggered an opposition between the targets of criminal policy and the needs of legality, whose point of greatest tension lay in the judge’s discretion, both at trial and in sentencing. The challenge of criminology, as Drost argued, mainly consisted of bringing together measures of special prevention and guarantees of the Rechtsstaat.78 The dilemmas aroused by criminology remained to be faced and the rise of totalitarian regimes made finding a solution more difficult. Reviewing Drost’s book, Max Radin recognised that the tenets of the Classical School were overcome ‘and the “Free Law” movement in Germany and France took as its principle the cardinal doctrine of modern criminology that acts cannot be standardised and that punishment must be individual’. However, he stressed that criminological theories did not simply mean a return to the discretionary justice of the past, because there was ‘no sympathy or affinity between the theories that resulted in the torture chamber and the stake, and the ideas that animated von Liszt and Saleilles, Lombroso and Ferri’.79 The constitutional conundrum of criminology had to be solved and its risks avoided, but reformers’ ideas could not simply be ignored or rejected because, as Franz Exner pointed out in 1933, they had already transformed the ‘liberal criminal practice into a social one’.80 The new direction of criminal justice determined by positivist criminology favoured both reformation of offenders and social defence against incorrigible offenders, but also brought about ‘the partial abolition of many a guarantee of individual freedom, which formerly was considered indispensable’.81 The constitutional implications of rejecting penal liberalism consisted in ‘the extension of judicial determination by which the individual, more than previously, is exposed to the judgment and therefore to the eventual arbitrariness of state organs’, extension of administrative powers, abandonment of the jury, limitations on procedural rights, restrictions on publicity of the trial, curtailment of the right of appeal, limitations on the judge’s power to use the defendant’s arguments, and the greater power given to the prosecution.82 The new approach went beyond theoretical contrapositions and jeopardised the very existence of the Rechtsstaat.83

77 Drost, Das Ermesses des Strafrichters (n 14) 215, 226. 78 ibid 199. 79 M Radin, ‘Review of Das Ermessen des Strafrichters by H Drost’ (1931) 22 Journal of the American Institute of Criminal Law and Criminology 633. 80 Exner (n 14) 258. 81 ibid 259. 82 ibid. 83 E Kern, Der Rechtstaatsgedanke im Strafrecht und Strafverfahrensrecht von der Reichsgründung bis zur Gegenwart (Freiburg, Speyer & Kaerner, 1933); more generally see C Schmitt, ‘Nationalsozialismus und Rechtsstaat’ (1934) 63 Juristische Wochenschrift 713; see also, with particular reference to the law allowing punishment by ­analogy, CH McIlwain, ‘Government by Law’ (1936) 14 Foreign Affairs 185.

Criminology and Authoritarian Criminal Law  119 In 1933 Dahm and Schaffstein openly theorised the foundations of an ­authoritarian criminal law system, radically opposed to both penal liberalism and socialism, whose ­alliance was, they argued, responsible for the uncritical leniency of criminal justice.84 Their programme was a criticism of both penal individualism, due to the overemphasis on individual rights and underestimation of social security, and individualisation, especially because the criminological movement, by putting too much emphasis on special prevention, had altered the separation of powers and increased the discretion of the judiciary, which had however been wrongly used only in favour of the offender. By exploiting the rhetoric of weak criminal justice caused by a misuse of special prevention, Dahm and Schaffstein called for a return to general prevention, namely to retributivism and deterrence, and the restoration of the tri-partition in criminal law. To them, the Fascist Rocco Code, that was basically a reaction against the Positivist School of criminology despite Ferri’s efforts to show the opposite, represented a model to be imitated due to its return to a repressive, retributive ideology. Dahm’s and Schaffstein’s manifesto was just a first step, and certainly not the most significant or radical, towards the building of the Nazi totalitarian penal system, but it clearly foreshadowed the premises and possible consequences of a drastic, constitutional legal renovation. Although scientific criminology and liberal penal thought disputed many issues for decades, they could find theoretical compromises within the common framework of the Rechtsstaat:85 they both were, as Mario Sbriccoli put it, types of what he defined ‘penalistica civile’, ie, a culture of criminal law committed to ‘civilising’ the entire society by means of a more civilised criminal law system.86 In 1931 Eberhard Schmidt, a reformer and follower of von Liszt, realised that German criminologists and criminalists were at a crossroads. They had a choice between evolution, by completing the reformative path inaugurated by von Liszt, which was still in line with liberal principles and the Rechtsstaat, or revolution, by following the Fascist example of the Rocco Code or Bolshevik Criminal Code, in which ideas of individual freedom and guarantee were waning.87 The Nazi regime and, in a different way, Fascism were laying the foundations for totalitarian states, in which criminal law was one part, albeit crucial, of an overall political and social project to overcome the constitutional order and build the Führerstaat or the new Fascist state.88 German criminal law, like the whole legal system, gradually abandoned any formalism and, above all, the principle of legality, to conform its structure and contents to the Führer’s will, which cannot be exclusively limited to or

84 Dahm and Schaffstein (n 17) 14–18; Dahm, ‘Autoritäres Strafrecht’ (n 17) 173–74; see Marxen (n 60) 101 ff; MA Cattaneo, Terrorismo e arbitrio. Il problema giuridico nel totalitarismo (Padua, Cedam, 1998) ch 3; B ­Feldmüller-Bäuerle, Die strafrechtliche Kieler Schule (Hamburg, Verlag Cr Kovac, 2010); Pifferi (n 14) 236–39. 85 See H Donnedieu de Vabres, La politique criminelle des états autoritaires (Paris, Librairie du Recueil Sirey, 1938) 18; RF Wetzell, ‘From Retributive Justice to Social Defense: Penal Reform in Fin-de-Siècle Germany’ in S Marchand and D Lindenfeld (eds), Germany at the Fin de Siècle: Culture, Politics, and Ideas (Baton Rouge, LA, Louisiana State University Press, 2004) 74–75. 86 M Sbriccoli, ‘La penalistica civile: teorie e ideologie del diritto penale nell’Italia unita’ in M Sbriccoli, Storia del diritto penale e della giustizia. Scritti editi e inediti (1972–2007) (Milano, Giuffrè, 2009) 562–73. 87 E Schmidt, Strafrechtsreform und Kulturkrise (Tübingen, Mohr, 1931) 14 and 19. 88 See R Freisler, ‘Der Wandel der politischen Grundanschaungen in Deutschland und sein Einfluss auf die Erneuerung von Strafrecht, Strafprozess und Strafvollzug’, English version in JS vd Aa (ed), Proceedings of the XIth International Penal and Penitentiary Congress, held in Berlin August 1935 (Bern, Bureau of the International Penal and Penitentiary Commission, 1937).

120  Michele Pifferi expressed by predetermined and enacted laws. As Werle argues, the Führerwille, namely the idea that the entire legal spectrum should embody Hitler’s will and conviction as the supreme interpreter of popular feeling, represents the key point for understanding the Nazi penal system.89 The overlapping of criminal law and police law within the area of penal justice goes far beyond the overcoming of the separation of powers and the rule of law, with its corollaries of legal provisions and judicial decision as conditions of punishment. The lawbased ‘normative’ state and the discretionary ‘prerogative’ state were, as Fraenkel argued, two distinct faces of the dual state, within which both criminal law and police law were part of a comprehensive political repressive project of war on crime based on the Führerprinzip as the new constitutional tenet.90 Which role did criminology play in this legal renovation? How was it used and exploited by totalitarian penal systems? Which continuities and which ruptures can be seen in criminological theories before and after the rise of Nazism and Fascism? The summary of the differences between Fascist and Nazi criminal law written by Dahm in 1935 gives us an insight into the character and scope of criminal law and criminology within the new totalitarian state. The political conceptions of individual and society were different: the Nazi state was based on the national community (Volksgemeinschaft) of ‘Blut und Boden’ (‘blood and soil’), the mystical charisma of the Führer whose decision always embodies the will of the people, and on racial-biological identity, while Italian Fascism exalted the absolute power of the state (not of the racial community of people) expressed by a law and order policy grounded on legality as a means to strengthen the authority of the state itself.91 While Nazism had a biological character and Hitler’s doctrine was mystical, Italian Fascism had a juridical character and was a logical and rational edifice.92 Nazism in Germany and Fascism in Italy explicitly wanted to frame new constitutional models,93 different from liberal systems and so completely absorbing that criminal law and criminology cannot be examined as independent disciplines, as they were deeply moulded by this new legal framework.94 89 Werle (n 8) 681–89. See also F Neumann, Behemoth. The Structure and Practice of National Socialism, 1933–1944 (London, Victor Gollancz, 1943) 369–74. 90 E Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (New York, Oxford University Press, 1941); also D Fraser, ‘Afterword – Through the Looking Glass: Thinking About and Working Through Fascist Criminal Law’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015) 202–03. Fraenkel’s interpretation was challenged by Neumann (n 89) 382–84, who argued that the political system of National Socialism is not a state, because ‘if a state is characterized by the rule of law … we deny that law exists in Germany’ and therefore Fraenkel’s thesis is questionable because ‘we believe that there is no realm of law in Germany, although there are thousands of technical rules that are calculable’. According to Neumann, ‘if the National Socialist structure is not a state … I venture to suggest that we are confronted with a form of society in which the ruling groups control the rest of the population directly, without the mediation of that rational though coercive apparatus hitherto known as the state’. 91 See G Dahm, Nationalsozialistisches und faschistisches Strafrecht (Berlin, Junker und Dünnhaupt Verlag, 1935); Donnedieu de Vabres (n 85) chs 1–6. 92 Donnedieu de Vabres (n 85) 11. 93 O Lepsius, ‘The Problem of Perceptions of National Socialist Law or: Was There a Constitutional Theory of National Socialism?’ in C Joerges and N Singh Ghaleigh (eds), Darker Legacies of Law in Europe. The Shadow of National Socialism and Fascism over Europe and its Legal Traditions (Oxford, Hart Publishing, 2003); P Caldwell, ‘National Socialism and Constitutional Law: Carl Schmitt, Otto Koellreutter, and the Debate Over the Nature of the Nazi State, 1933–1937’ (1994) 16 Cardozo Law Review 399. 94 See M Frommel, ‘Von der Strafrechtsreform zur “Rechtserneureung”’ in H Rottleuthner (ed), Recht, ­Rechtsphilosophie und Nationalsozialismus. Vorträge aus der Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) in der Bundesrepublik Deutschland vom 11 und 12 Oktober 1982 in Berlin (West) (Wiesbaden, F Steiner Verlag, 1983).

Criminology and Authoritarian Criminal Law  121 As one of the many levers used to build a totalitarian penal strategy, criminology provided the intellectual resources to advocate racial hygiene, construction of types of criminals, and elimination of dangerous offenders.95 Bio-criminology, which had been the prevailing approach among German criminologists since the 1920s, contributed to identifying those unreformable offenders who had to be not only excluded from society but even physically eliminated, by providing pseudo-scientific arguments to transform an assessment of social and racial (dis)value into a biological judgement.96 The importance of criminology as ‘sister science’ and complementary discipline of criminalistics was clearly acknowledged97 and the responsibility of many jurists and criminologists in leading and fostering this Nazi turn in criminology into an instrument of racial selection and political oppression is undeniable.98 In Italy, too, Lombrosian anthropology and its developments were fraught with dangerous potential and susceptible to being exploited by Fascist racial laws both in the colonies and at home. Similarly, the social defence ideal was perfectly coherent with Mussolini’s idea that punishment’s purpose should not be vindictive retribution but rather ‘uniquely defence carried out by means of intimidation and amendment’.99 As Rocco clarified in his report on the Penal Code, in the Fascist conception, the right to punish is nothing else than a right of self-preservation and defence of the State, nascent with the State itself, analogous to but substantially different from the right of defence of the individual and with the purpose of ensuring and granting the fundamental and prerequisite condition of life in common.100

What is not equally unquestionable is the line of continuity linking Lombroso’s, Ferri’s or von Liszt’s theories to what criminology became or meant in totalitarian contexts. Certainly during the Nazi regime, as Otto Kirchheimer pointed out, ‘all the guarantees for which liberalism had struggled since the end of the eighteenth century have been destroyed’, but ‘the new criminal practice is not motivated primarily by criminological viewpoints, but by a specific social educational function’.101 To transform the repressive potential of criminology into Nazi and Fascist laws and policies, to arouse the degeneration of those theories on racial differentiation which were, at that time, a scientifically grounded commonplace, something more and something different would have to occur.102 To combine all these 95 See N Wachsmann, ‘From Indefinite Confinement to Extermination: “Habitual Criminals” in the Third Reich’ in R Gellately and N Stoltzfus (eds), Social Outsiders in Nazi Germany (Princeton, NJ, Princeton University Press, 2001); N Wachsmann, Hitler‘s Prisons. Legal Terror in Nazi Germany (New Haven, CT, Yale University Press, 2004) 46–54, 128–39. 96 See, eg, H Schneickert, Einführung in die Kriminalsoziologie und Verbrechensverhütung (Jena, Gustav Fischer, 1935); E Lersch, ‘Die Strafrechtliche Verwertung der Kriminalbiologischen Gutachten’ (1931) 3 Mitteilungen der Kriminalbiologischen Gesellschaft 41; EH Rosenfeld, ‘Die Strafrechtliche Verwertung der Kriminalbiologischen Gutachten’ (1931) 3 Mitteilungen der Kriminalbiologischen Gesellschaft 55. See generally M Burleigh and W Wippermann, The Racial State: Germany 1933–1945 (Cambridge, Cambridge University Press, 1991). 97 See E Seelig, ‘Kriminologie’ in A Elster and H Lingemann (eds), Handwörterbuchund der anderen strafrechtlichen Hilfswissenschaften, vol 2 (Berlin, Verlag von Walter de Gruyter, 1936) 75–76. 98 Dürkop (n 51) 101–04; Wachsmann, Hitler’s Prisons (n 95) 68–83; more generally KH Jarausch, ‘The Conundrum of Complicity. German Professionals and the Final Solution’ in AE Steinweis and RD Rachlin (eds), The Law in Nazi Germany. Ideology, Opportunism, and the Perversion of Justice (New York, Berghahn Books, 2013). 99 F Grispigni, ‘La funzione della pena nel pensiero di Benito Mussolini’ (1942) 83 Rivista penale 651, 653. 100 Rocco (n 16) 8. 101 Rusche and Kirchheimer (n 50) 181–82. 102 Mussolini and other ideologues of the regime were very critical of the Nazi racial theories until 1938, and for different reasons racial ideas elaborated by positivist criminologists had only a very limited and marginal impact on Fascism, as argued by E De Cristofaro, ‘Dalla difesa della stirpe alla difesa della razza. La via italiana alla biopolitica’ (2015) 45 Materiali per una storia della cultura giuridica 329.

122  Michele Pifferi different factors (such as the social defence principle, security measures for dangerous offenders, individualisation of punishment, criminal anthropology, etc) in totalitarian policies and make them part of Nazi and Fascist regimes, new political conditions as well as social and economic circumstances were required. Nazi and Fascist revolutions,103 with their views on individual, community and state, with their imperial expansionist aims, their use of technical rationality as a way to control the masses through terror, their conception of the enemy,104 channelled and exploited different ideas and forces (criminology included) towards the same totalitarian purpose.105 If the idea of selection was in a certain way inherent in criminological theories, its potentiality to ratify extermination could develop only under the influence of ideological conditions and within the changed political and constitutional totalitarian framework, when the limits and checks characteristic of the liberal system were swept away.106

Conclusion If some criminologists, fervent adherents of Fascism and Nazism, contributed to shape penal regimes, criminology as a whole, with its variety of approaches and currents of thought, cannot be held responsible for the degeneration of criminal law in Nazi and Fascist systems. Nonetheless, one of its most dangerous (and maybe so far less studied) characteristics in terms of its contribution to the rise of totalitarian regimes, lies neither in the emphasis on the dangerousness and personality of the criminal, nor in the priority given to prevention, but in the weakening of the liberal constitutional balance in sentencing powers, namely in the attribution of a wider sentencing discretion to the judicial and administrative branches. The reasons for the constitutional fallouts of criminology are complex. Here I shall confine myself to stressing the importance of a historical rethinking of this constitutional dimension of the problem. From this perspective, the position of Hall, the American criminal law scholar who, in 1937, called for a retention of the nulla poena sine lege principle, and admonished against ‘the sweeping inroads of Positivism upon liberal government generally’, can be better understood. Even though ‘the abolition of law’ took place first in the treatment of juveniles for good reasons, ‘the possibilities of this movement are now apparent’, because ‘the abolition of nulla poena provides a sieve through which can flow not only humanity and science but also repression and stupidity’.107 Hall does not criticise the criminological

103 On the historiographical interpretation of both Italian Fascism and Nazism as two different and p ­ eculiar revolutions as well as two distinctive totalitarian experiences see, eg, R De Felice, Intervista sul fascismo ­ (Rome–Bari, Laterza, 1975) 39–41; E Gentile, Fascismo. Storia e interpretazione (Rome–Bari, Laterza, 2005) ch 5; E Gentile, ‘Fascism in Italian Historiography: In Search of an Individual Historical Identity’ (1986) 21 Journal of Contemporary History 179; Mosse (n 7) ch 16. 104 See H Marcuse, ‘State and Individual Under National Socialism’ in H Marcuse, Technology, War and Fascism. Collected Papers of Herbert Marcuse, vol 1 (D Kellner ed) (London, Routledge, 1998). 105 eg, with regard to the Italian racial laws, G Israel and P Nastasi, Scienza e razza nell’Italia fascista (Bologna, il Mulino, 1998) 76–77, 100–02. 106 See Simon, ‘Kriminalbiologie und Strafrecht’ (n 62) 227; J Simon, ‘Kriminalbiologie – theoretische Konzepte und praktische Durchführung eines Ansatzes zur Erfassung von Kriminalität’ in Justizministerium des Landes Nordrhein-Westfalen (ed), Kriminalbiologie (Düsseldorf, 1997). 107 Hall (n 19).

Criminology and Authoritarian Criminal Law  123 movement as a whole, but realises how dangerous the gradual erosion of legality (ie, the rule of law and the separation of powers) could be in an authoritarian political context. His criticism was directed, in particular, at those criminologists, in the United States as elsewhere, who still demanded wholly indeterminate sentencing, with complete elimination of prescribed penalties, the role of the judge entirely confined to the conduct of the trial, and administrative prison boards in sole charge of the sentencing phase. The ‘exploitation of criminology’ by totalitarianism exacerbated the inconsistencies of modern penology, and even after the restoration of democracy some ambiguities rose to the surface again. Criminological theories are often accused of having prepared the ground for anti-liberal, repressive, totalitarian penal systems, as if these theories were a ‘foreign body’ that liberalism had contested until the rise of totalitarian regimes. According to this view, Fascism and Nazism rejected liberal individualism and, by so doing, adopted some criminological measures that in liberal political systems had been somehow theorised but almost never applied. From this perspective, criminology, too, takes on anti-liberal traits. My suggestion is to consider criminology as an inherent part of penal liberalism and a clear manifestation of its contradictions, as a by-product of that same liberal penal culture to which the Classical School also belonged and which also had authoritarian traits even before the rise of totalitarian regimes.108 Adherents of criminological movements made every effort to reform the traditional liberal penal system and their theories surely were intended to undermine some of its fundamentals, such as free will and legality of punishment. Yet, even when they made proposals for or were able to enact radical changes, such as for instance Jiménez De Asúa’s Ley de vagos e maleantes, which introduced the possibility of punishing dangerousness without crime,109 they considered that their reforms were still consistent with penal liberalism, whose tenets were modified and tuned to social changes but not completely overturned or rejected. Somehow they felt like successors of a tradition that was in need of rethinking, in terms of a shift from over-individualism to social defence, from crime to the criminal, and from responsibility to dangerousness. N ­ onetheless, they were not suggesting a political turn: they demanded a reshaping of boundaries and broadening horizons of criminal law, they called for changes in the penal law tenets of the Rechtsstaat – especially in terms of allocation of sentencing powers, rethinking of legality and social defence – but they never questioned the constitutional framework within which the reformed criminal law should operate. Von Liszt’s famous definition of criminal law as the Magna Carta of the criminal, albeit ‘skewed’110 and radically different from F ­ euerbach’s liberal notion of legality as a guarantee for the individual,111 seems to 108 If this does not mean that the repressive potential of criminology should be ignored (as I have tried to examine in Reinventing Punishment), it could maybe provide an interpretation of the partial recognition of some Nazi laws by other Anglo-American (and European) criminologists (see D Fraser, ‘“The Outsider Does Not See All the Game …”: Perceptions of German Law in Anglo-American Legal Scholarship, 1933–1940’ in C Joerges and N Singh Ghaleigh (eds), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Legal Traditions (Oxford, Hart Publishing, 2003)). Preventive detention was not typically Nazi, but was a provision shared by many legislations and jurists, and so it is not so strange that, eg, Mannheim did not criticise the German law on habitual criminals. What was typically Nazi was its application and use, because it was a piece of a bigger mosaic in which old components were reshaped into a new constitutional framework. 109 See L Jiménez De Asúa, ‘Un saggio legislativo sulla pericolosità senza delitto (La legge spagnola sui vagabondi e malviventi del 4 agosto 1933)’ (1933) 39 La Giustizia Penale 429; see also Pifferi (n 14) 201–02. 110 Vormbaum, A Modern History (n 8) 123. 111 See S Ehret, ‘Strafrechtsbegrenzung durch das Gesetzlichkeitsprinzip bei Franz von Liszt?’ (1996) 79 Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 340.

124  Michele Pifferi substantiate this interpretation.112 This was the main divide between criminology and both Fascist and Nazi criminal law systems, which, on the contrary, were premised on political revolutions. As I have argued in this chapter, a different and still more problematic issue concerns the gradual erosion of the balance of powers upon which both Rechtsstaat and rule of law were grounded and the related relaxation of its checks and balances to the detriment of individual guarantees. The separation of the principle of legality in two separate and distinct parts, of which only the nullum crimen was retained while the nulla poena was abandoned or deeply attenuated, the different allocation of sentencing powers with a growing judicial discretion and an increased responsibility given to administrative bodies, and the prevailing importance of prevention over repression in the rationale of punishment are different examples of criminology’s constitutional effect. The consequence of these theories and reforms was a general weakness of the penal constitutional framework, which inevitably favoured the rise of authoritarian regimes. Fascist and Nazi revolutions took advantage, in their rhetoric as well as in their strategies to gain consensus, of the need to restore an effective criminal justice after (and, especially at the beginning, against) the failures and unsatisfactory results of the combination of the classical penal school’s theories and positivist criminology. The recognition of continuities between pre- and post-totalitarian penal regimes involves a rethinking of the whole of penal liberalism and its light and shade,113 and not a Manichean refutation of positivist criminology as if it were radically opposed to liberal (or classical) penal thought.

112 See RF Wetzell, ‘Introduction. Crime and Criminal Justice in Modern Germany’ in RF Wetzell (ed), Crime and Criminal Justice in Modern Germany (New York, Berghahn Books, 2014). 113 See, eg, D King, In the Name of Liberalism. Illiberal Social Policy in the United States and Britain (Oxford, Oxford University Press, 1999); W Naucke, ‘NS-Strafrecht: Perversion oder Anwendungsfall moderner ­Kriminalpolitik?’ in W Naucke, Über die Zerbrechlichkeit des rechtsstaatlichen Strafrechts. Materialen zur neueren Strafrechtsgeschichte (Baden-Baden, Nomos Verlagsgesellschaft, 2000).

6 Classifying Law as Criminal in Apartheid South Africa MARIKA GILES SAMSON*

Introduction When is law ‘criminal law’? Are there specific qualities that inhere to make a law criminal, as opposed to civil, or administrative? If there is no objective standard for the classification of law, who gets to decide on a law’s classification, and to what extent are such choices ideological? Given that criminal law offers a structured mechanism for collective social condemnation and the deprivation of liberty, these foundational questions have potentially profound consequences, particularly in authoritarian regimes where criminal law is used as a tool to repress political pluralism. In this chapter, I will identify how South Africa’s apartheid regime instrumentally applied the categories of administrative and criminal law in an effort both to mask and to enforce apartheid ideology. This will set the stage for my main argument, that the regime’s ­classification of many political activities as criminal set off a much wider battle for normative dominance, in which criminal law was used domestically in an effort to support apartheid, and internationally to condemn it. By apartheid rule, I address the period from the election of the National Party in 1948 through to its eventual defeat in South Africa’s racially inclusive elections in 1994. This is not to imply that apartheid policy – those policies intended to create racial hierarchies for the benefit of the white settler population – emerged only in 1948. On the contrary, much of the foundation for apartheid was laid in the decades before.1 However, the project of apartheid was undeniably consolidated and intensified in the second half of the twentieth century. Apartheid South Africa is a useful comparator for the other national case studies in this collection in that unlike, say, Francoist Spain or the Third Reich, it did not set out to be an authoritarian state. Centralised power was not a foundational element of apartheid’s plan,

* The author is grateful for thoughtful feedback received on earlier drafts of this paper from Eliza Bateman, Fréderic Mégret, Stephen Skinner, the attendees at the September 2015 conference that led to the publication of this volume, and the two anonymous referees. 1 The report of the Truth and Reconciliation Commission (TRC Report) provides a detailed chronology of what it terms ‘apartheid’ legislation that stretches back to the mid-nineteenth century: South Africa, Truth and ­Reconciliation Commission of South Africa Report (Cape Town, Truth and Reconciliation Commission, 1999) vol 1, ch 13, 448–77.

126  Marika Giles Samson and the evolution into a nakedly authoritarian regime was a response to sustained domestic resistance to its rule. Moreover, criminal law in apartheid South Africa did not occupy the deeply symbolic place held by, for example, the Rocco Code in Fascist Italy. Rather, apartheid was meant to be, above all, an administrative regime: of racial classification, of occupation zones and property law, of municipal by-laws, of labour and employment law, and of differential political rights.2 In other words, apartheid was primarily intended to be an organisational system. For the proponents of the apartheid system, the normative case for apartheid – the inherent inequality of the races – was obvious, and it was only as it became clear over the following decades that the majority of the population accepted neither the racial premise nor the organisational that efforts to enforce it became transparently punitive. South Africa perceived itself, and wished to be perceived, as a rule of law state in a recognisable, Western sense: it maintained a constitutional separation of powers (although heavily skewed towards the legislative branch); it exercised power based on statutes passed by an elected parliament; and it operated with an internal logic and systematicity that defied accusations of arbitrariness. If one was able to overlook the disenfranchisement of the majority of its citizens, South Africa looked like a model Western state. It also curried the favour of Western allies by positioning itself as a regional bulwark against communism during the Cold War. Except, of course, a political project that savagely disadvantaged the vast majority of South Africans was by its nature illiberal, and quickly came to be unsustainable absent authoritarian rule. When nominally administrative penalties did not suffice to compel compliance, the regime adopted formal criminal law to repress political opposition. The international legal reaction followed a similar trajectory. This evolution occurred over three overlapping phases. First, at the outset of a­ partheid, the legal architecture of apartheid was administrative, although its imposition and enforcement was experienced as ‘criminalising’ to the majority of the population who were disadvantaged by their racial classification or zoning restrictions. Over time, as the government persisted in imposing apartheid on an unwilling populace, it turned to criminal sanction as a means of enforcing administrative compliance. Ultimately, however, this phase of enforcement largely backfired, as evidenced by a broad refusal to comply with apartheid laws and heightened political resistance. In the second phase, as the population rose up against its subjugation, an increasingly authoritarian regime enacted explicitly criminal laws to repress the uprising itself. In this phase, the apartheid regime endeavoured to recharacterise as criminal a wide swath of inherently political activities, including peaceful protest, membership in oppositional organisations and the establishment of political parties, and attendance at public (and many private) gatherings, among many others. By extension, the government also sought to identify as criminals (often by labelling them as communist subversives and terrorists) those who participated in such activities. In the second section, I interrogate the mixed results of this phase of criminalisation, both within South Africa and internationally. 2 The TRC Report classified apartheid legislation into the following categories: basic apartheid laws; the workplace; security legislation; political representation; education; and urbanisation. The original post-1948 ‘basic apartheid laws’ are listed as the Prohibition of Mixed Marriages Act, Act No 55 of 1949; the Immorality Amendment Act, Act No 21 of 1950; the Population Registration Act, Act No 30 of 1950; and the Reservation of Separate Amenities Act, Act No 49 of 1953. This group of laws is sometimes referred to as ‘petty apartheid’.

Law in Apartheid South Africa  127 In the third section, I consider the international characterisation of apartheid itself as ‘criminal’, specifically as a crime against humanity. I address the extent to which this characterisation of apartheid engendered international pressure and the role that it played in the apartheid regime’s demise. In doing so, I will examine how the criminalisation of apartheid itself operated on a rhetorical, diplomatic, and legal level.

The Outset of Modern Apartheid: The Two Faces of Law I begin by addressing a threshold question: what makes a particular law criminal? A common way of thinking about criminal law is that it is one way in which a society defines and responds to a particular kind of deviance. Yet as commentators have noted, this common definition risks circularity, because the particular deviance addressed by criminal law encompasses those activities defined as deviant by the criminal law: in other words, criminal deviance is what the criminal law says it is.3 A bit more is revealed as one considers the particular mechanisms of social control under criminal law: that is, the kind of social disapprobation that comes with the characterisation of one’s behaviour as ‘criminal’ and the associated imposition of criminal law penalties, including the surrender of property through fines and penalties, the surrender of one’s liberty through imprisonment and, in states where capital punishment is practised (such as apartheid South Africa), the surrender of one’s life. Criminal sanction differs both structurally and normatively from civil damages in that it is expressed as a condemnation by the collectivity of the state against the perpetrator resulting in punishment, rather than as a remedial award in favour of a successful claimant. Criminal punishment is, in turn, justified in various ways, most commonly to enforce and vindicate social norms, or to avoid social harm through prevention and deterrence, or simply to punish a breach of legal rules. Each of these theories invites a necessary ­consideration of the nature of the rule: how entrenched is the social norm being enforced, and how important is it that it be vindicated through law? Does the breach of the underlying social norm cause harm? And does its breach warrant punishment and if so, what kind? Sometimes a rule ticks all three boxes: it reflects a strong social norm deserving of legal protection, the breach of which is both inherently harmful and justifies penal sanction. At other times, the perceived legitimacy of a law may well be determined by the view one takes of the function of criminal law. Let us consider, as a very simple example, the apartheid-era prohibition of marriage between persons of different races. When it was passed in 1949,4 the underlying norm may or may not have been at least somewhat established, given that sexual relations between people of different races had been prohibited since 1927.5 The marriage prohibition also had 3 See, eg, C Wells and O Quick, Lacey, Wells and Quick: Reconstructing Criminal Law, 4th edn (Cambridge, Cambridge University Press, 2010) 5. 4 Prohibition of Mixed Marriages Act 1949. 5 Immorality Act, Act 5 of 1927. The underlying norm may have been embraced by many whites, but likely not by the majority of the population. In referring to and quoting from contemporary texts I, like many scholars, adopt apartheid-era racial descriptions for the purpose of legal specificity. In this respect, ‘white’ refers to the enfranchised settler population; the indigenous African population of the region is referred to as ‘African’, ‘black’, or ‘native’; and ‘coloured’ refers to the mixed race peoples, mainly of the Cape region, who were classified separately under the Population Registration Act 1950.

128  Marika Giles Samson a practical dimension: to permit mixed marriages, at least in conjunction with the normal cohabitation of spouses, would have led to administrative difficulties in maintaining segregated residential zoning. However, in the absence of an entrenched apartheid mentality that believed that interracial sex was immoral, and that mixed-race neighbourhoods were unnatural, the case that such marriages were inherently socially harmful is harder to make. And in the absence of any perceived harm, it becomes much harder to justify retribution through criminal law. That is the case unless, of course, criminal sanction is justified solely on the basis of the law-breaking itself. The fusion of this kind of retributive, positivist model of criminal law can yield a self-sustaining, if perverse, logic: the breach of rules that are validly made (according to the prevailing theory of positive law and constitutional order) must be punished in order to preserve, if not the particular rule or the values or utility it encompasses, then the idea of rules in general. This fusion existed in apartheid South Africa, where the prevailing concept of law was grounded in Austinian legal positivism, an approach summarised by John Dugard in 1978: The notion of law as the command to a political inferior coupled with a sanction, the view that ‘the existence of law is one thing; its merit or demerit is another’, Austin’s harsh strictures directed at civil libertarians, and the declaratory nature of the judicial function are the components of the legal philosophy of the average South African lawyer.6

This approach, in turn, was made manifest through a doctrine of parliamentary supremacy to which Bench and Bar rather mechanically adhered.7 This, of course, is a bit of theoretical sleight-of-hand on the part of the state, inviting the populace to ignore the content, or injustice, of a particular law in favour of an abstract sense of ‘Order’ created by the general ‘Law’. This ‘Order’ is then often reified as ‘the rule of law’ and, in turn, contrasted, rather simplistically, with anarchy.8 The trick is designed to convince the public to scrutinise neither the content of the particular law, nor the virtue of the process by which it was created, and is, presumably, most effective when neither the substance nor the process is particularly controversial.

6 J Dugard, Human Rights and the South African Legal Order (Princeton, NJ, Princeton University Press, 1978) 396. 7 Dugard, ibid, 393 notes that: ‘South African lawyers are peculiarly prepared to accept as law anything that calls itself by that name or is printed at government expense in the Government Gazette’. The adherence of the Bench has been well canvassed in the work of Dugard and others, including D Dyzenhaus, Hard Cases in Wicked Legal Systems (Oxford, Clarendon Press, 1991); and D Dyzenhaus, Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (Oxford, Hart Publishing, 1998); and C Forsyth, ‘The Judges and Judicial Choice: Some Thoughts on the Appellate Division of the Supreme Court of South Africa since 1950’ (1985) 12 Journal of Southern African Studies 102. 8 Many authors have distinguished between the rule of law and rule by law. B Tamanaha quotes Chinese law professor Li Shuguan in differentiating the two: ‘[t]he difference … is that under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law can serve as a mere tool for a government that suppresses in a legalistic fashion’: BZ Tamanaha, On the Rule of Law: History, Politics, Theory (New York, Cambridge University Press, 2004) 3 (fn omitted). It is useful, in assessing whether a government by rule of law has in fact been established, to consider the degree to which the executive and legislature are willing to subject themselves to the same rules as those whom they govern. The vastly differentiated legal rights and responsibilities of apartheid South Africa, particularly along racial lines, makes this rather complicated to assess, but the regular ouster of judicial supervision of both executive action (particularly in the area of security detention) and legislative output (the systemic repudiation of judicial review of legislation) tends to undermine claims that the apartheid regime was a rule of law state.

Law in Apartheid South Africa  129 By contrast, the laws of apartheid South Africa were deeply controversial in both origin and content, and so at least part of the population was never going to be distracted by this sleight of hand. At its source, South African law suffered from a fatal flaw obvious to, at the very least, the non-white majority of the population. In a system that allows only whites to vote and to stand for election,9 parliamentary supremacy is the functional equivalent of white supremacy. Grounded in an ideology of racial superiority and entitlement, white supremacist rule in South Africa was not just rule by a government that happened to be composed of white people. It was rule by and in the interests of whites.10 The white minority reserved the best of the country for themselves: control of natural resources; the most and the best land on which to live and farm; decent education; the right of labour to organise; as well as access to and design of modern infrastructure.11 This led to obvious injustices ab initio, and laws that in purpose or effect perpetuated those inequalities were met with ­resistance and disobedience. Moreover, for the individuals experiencing disadvantage under apartheid law, law was not some abstract totality owed a sort of reflexive deference simply because it expressed sovereign command or some crude form of democratic functioning. Rather law was experienced in its particulars: in specific claims or charges, in relocation and segregation, in limited educational and employment opportunities, in the denial of political rights. Nor did the Law deliver the promised Order in their lives: rather, it imposed disruption and personal restriction and indignity on a daily basis. Apartheid law was, in this way, two-faced. To those who benefited from it, or at least who accepted its underlying premises, it felt like an administrative system, and this was the image that it sought to project. For those who suffered under it, it felt like criminal law, albeit one that held no normative relevance for them. Substantively, criminal law theorists often contrast offences that are mala in se, wrongful or evil in themselves (commonly cited examples include murder or theft) and those that are mala prohibita, wrongful because – and only because – they breach a particular rule or regulation. Much of the legal architecture underpinning the apartheid project was, except perhaps to the most hardline apartheid ideologues, always closer to the mala prohibita end of the spectrum. Many offences could only be seen as mala in se to the extent that the moral and social legitimacy of apartheid had already been fully internalised. For example, being present outside one’s racially designated residential zone, or failing to produce a pass upon demand is not, on any objective definition, mala in se, but rather a violation of the rules of a particular, and frankly peculiar, social structure, ie, mala prohibita. In theory, and in many societies, not all mala prohibita acts are criminal: regulations can be breached, and such breaches addressed, without criminal sanction. However in the legalism of apartheid South Africa, the line between mala in se and mala prohibita was, at the very least, indistinct. 9 Racially based disenfranchisement was established by the Representation of Blacks Act, Act No 12 of 1936; the Asiatic Land Tenure (and Indian Representation) Act, Act No 28 of 1946; and the Separate Representation of Voters Act, Act No 46 of 1951. All of these statutes purported to assign a specified number of white parliamentarians to represent each of these groups, although any pretence that blacks were actually being represented was eliminated in 1959 with the passage of the Representation between the Republic of South Africa and Self-Governing Territories Act (Promotion of Bantu Self-Government Act), Act No 46 of 1959. 10 P Parker and J Mokhesi-Parker, In the Shadow of Sharpeville: Apartheid and Criminal Justice (New York, New York University Press, 1998) 3. 11 eg, the Black Land Act 1913 reserved 87% of South African land for white ownership.

130  Marika Giles Samson This distinction might not matter had there been no blurring of the line between criminal law and administrative regulation, but this is precisely what the apartheid regime did. For example, the statutes that assigned each person to a racial group12 and restricted their rights of residence and movement accordingly13 did not, on the whole, read as criminal statutes. Moreover, the prosecution of cases under pass law statutes did not always proceed according to ordinary criminal procedure. When a black person was arrested in an urban area for being ‘an idle or undesirable person’, for example, he was required to ‘give a good and satisfactory account of himself ’ before a Commissioners’ Court in order to avoid being sent to a work colony or removed to a government-designated homeland. This was a form of internal exile that was both reminiscent of ancient forms of penal sanction (not to mention the Italian Fascist practice of confino) and consistent with the internal logic of a regulatory regime governing residential zoning.14 On the other hand, the laws in question specified that those who failed to comply with the scheme, for example by failing or refusing to produce their pass, were ‘guilty of an offence’ and could be, depending on the nature of the violation, fined, or imprisoned, or both.15 In submissions before the Truth and Reconciliation Commission (TRC), some senior members of the judiciary also openly characterised the enforcement of many ­apartheid laws as criminal: Racial segregation of all public amenities and the ban on mixed marriages and interracial sexual intercourse were also enforced by criminal prosecution … Criminal prosecutions conducted under these laws were conducted primarily in magistrates’ courts and in specialized courts such as commissioners’ courts.16

These ‘specialised courts’ would be the functional equivalent of administrative tribunals in other jurisdictions, which would not traditionally have the jurisdiction to impose criminal sanctions. This blurring of the boundaries between criminal and administrative law also sometimes resulted in the burden of proof being misplaced, such as in cases where the ‘accused’ was required ‘to prove they were not leading “an idle, dissolute or disorderly life”’, or risk imprisonment.17 Where a breach of a nominally administrative statute led to criminal sanction, the experience for those penalised was undoubtedly one of being treated as a criminal. This criminalising effect was distinct from (though not unrelated to) the more commonly discussed discriminatory effect of such laws, and included the indignity of arrest and detention and, upon conviction, imprisonment or payment of a fine, with all of the attendant social and economic dislocation.18 As such, the criminal consequences added insult to what 12 Population Registration Act 1950. 13 Movement and residence had been restricted as early as 1913, but the rules were consolidated in the Blacks (Urban Areas) Consolidation Act, Act 25 of 1945 and further regulated by the Group Areas Act, Act 41 of 1950. Collectively known as the ‘pass laws’, they remained in effect until 1986. 14 Parker and Mokhesi-Parker (n 10) 36. 15 eg, s 18 of the Population Registration Act 1950 and s 34 of the Group Areas Act 1950. 16 I Mahomed, A Chaskalson, MM Corbett, HJO van Heerden and PN Langa, ‘Legal System in South Africa 1960–1994’ (1998) 115 South African Law Journal 21, 25. 17 Parker and Mokhesi-Parker (n 10) 36. 18 Arrest for pass law violations was common. In 1976, for example, 268,985 people were arrested for ‘influx control’ offences: Mahomed et al (n 16) 24 (fn 7). A similar number of arrests, 262,905, is recorded for 1983: ­International Commission of Jurists, South Africa: Human Rights and the Rule of Law (London, Pinter Publishers, 1988) 12.

Law in Apartheid South Africa  131 was undoubtedly a serious human rights injury. That families could be split up due to the regulation of residence and movement is similar to the type of dislocation and social disruption that accompanies imprisonment. This criminalising effect was not an unintended consequence of the law. The dogged enforcement of the apartheid regime was intended to manifest all of the theories of criminal justice: to vindicate the rules per se; to operate as a general and specific deterrent; to physically prevent recidivism; and to affirm the underlying social norm of racial segregation. This last point is a crucial one: one of the reasons why the apartheid laws were enforced through penal sanction was in order to affirm, in the strongest possible terms, apartheid ideology. Compliance with, for example, zoning and pass laws, was fundamental to the apartheid project. As such it warranted an effort, through criminal law, to pressure the population to normalise and internalise racial segregation and hierarchy, if not by force of persuasion, then through the application of legal force through criminal law enforcement. It seems extraordinary to imagine that the regime sought to create, through punishment, a broad population of ‘good (apartheid) citizens’ among non-white South Africans. More likely, criminalisation was meant to validate the system with whites: by backing regulation up with criminal sanction, the state sought to convince the population that apartheid was something grounded in the most important values of South African society. In this respect, it bears remembering that the core mission of apartheid, according to its architects, was not a system of discrimination for discrimination’s sake; rather it presented itself as a system of separate development, purportedly for the benefit of all races. On the whole, however, criminalisation backfired, at least with respect to the nonwhite majority. Those structurally disadvantaged by apartheid were unwilling to internalise its norms, and saw through apartheid’s ‘separate but equal’ lie. The grinding indignity of apartheid and the application of police power largely had the opposite effect, leading to a fundamental schism in the prevailing morality and, if anything, undermining the goals of criminal justice. As a group of senior judges noted in their submission before the South African TRC: The most common way for an African person to encounter the legal system and the courts was in the context of the criminal enforcement of apartheid laws. In the circumstances, it was hardly surprising that law, law-enforcement agencies such as the police and the administration of justice generally lost their legitimacy in the eyes of the majority of South Africans. A further effect was to reduce, for the majority, the stigma that generally attaches to prosecution and imprisonment (emphasis added).19

Thus, not only did criminal law enforcement lose its moral sting for the non-white majority, by the early 1960s, opposition movements had adopted a strategy of deliberate and conscientious law-breaking. In his statement from the dock at the 1964 Rivonia trial, Nelson Mandela explained the legal choice faced by ‘the African people’: All lawful modes of expressing opposition to this principle [of white supremacy] had been closed by legislation, and we were placed in a position in which we had either to accept a permanent state of inferiority, or to defy the Government. We chose to defy the law. We first broke the law in a



19 Mahomed

et al (n 16) 25.

132  Marika Giles Samson way which avoided any recourse to violence; when this form was legislated against, and then the Government resorted to a show of force to crush opposition to its policies, only then did we decide to answer violence with violence.20

With no realistic prospect of acquittal, Mandela refused to play the state’s game in the Rivonia trial, transcending the guilty/not guilty binary to question the very legitimacy of the apartheid state. In doing so, he used the trial as an opportunity for what one author has called ‘epistemic resistance’,21 exploiting his presence within the inner sanctum of the criminal justice system to question the authority of that system and the government that it served, to contest the very values that it was meant to vindicate. Of course, by the time of the Rivonia trial, the apartheid regime itself had moved beyond the mere enforcement of apartheid regulation to an effort to regulate the political sphere as a whole, thereby redoubling its strategy of apartheid inculcation through criminal law enforcement.

Criminal Law and the Authoritarian Crackdown Given Mandela’s assessment that to obey apartheid law was tantamount to accepting ‘a  permanent state of inferiority’, it is not surprising that the majority of the population were unwilling to submit to Law’s authority. The apartheid state’s sleight of hand, in which specific instantiations and experiences of law were to be sublimated to the ideal of Law, had not succeeded in apartheid South Africa, at least not politically.22 Moreover, it was becoming increasingly apparent that, as the voices of political dissent grew stronger and more broadly persuasive, Law was failing to deliver on its minimal promise of Order. If the apartheid project was to survive, an increasingly forceful assertion of its legal authority was required. It was at this juncture – the fork in the road at which the government chose force as its primary means of asserting normative dominance – that the government became authoritarian or, perhaps more accurately, abandoned any pretence that it was not. If in the earlier phase the government had sought to encourage legal compliance, in this phase it would insist on utter submission to the apartheid project. The design and enforcement of criminal law was one of the main conduits through which this agenda was accomplished. In this phase, the connection between subject matter and criminal sanction in South  Africa became increasingly tenuous, as the reach of mala prohibita was stretched further and further from the core of a credible code of moral or social transgression to a wide range of vaguely defined political crimes. Within days of the 1960 Sharpeville ­Massacre,

20 Mandela’s speech is reproduced in full as part of Professor D Linder’s ‘Famous Trials’ project, available at: www.famous-trials.com/nelsonmandela/709-preparedtodie. 21 AK Allo, ‘The Courtroom as Site of Epistemic Resistance: Mandela at Rivonia’. Article first published online 21 April 2016 in Law, Culture and the Humanities, available at: doi.org/10.1177/1743872116643274. 22 There is significant evidence, however, that it succeeded legally, and that the Bench and Bar of South Africa fully acquiesced in the prosecution of apartheid through legal mechanisms and institutions. See especially Dugard, Human Rights and the South African Legal Order (n 6); A Sachs, Justice in South Africa (Berkeley, CA, University of California Press, 1973); and Dyzenhaus, Hard Choices in Wicked Legal Systems (n 7). This is also reflected in the TRC Report, Vol 4, ch 4, which was the subject of extensive analysis in Dyzenhaus, Judging the Judges, Judging Ourselves (n 7).

Law in Apartheid South Africa  133 a protest against the pass laws that had ended with the police shooting and killing 69 people (including 10 children) and which led to mass protest all over the country, the government had declared a state of emergency. Within weeks, it had passed legislation that both banned the two main black opposition groups, the African National Congress (ANC) and the Pan-African Congress (PAC), and increased penalties for certain offences under the Riotous Assemblies Act.23 In 1962, further legislation was passed, empowering the President to impose restrictions on movement and even social gatherings.24 Notoriously, the 1962  legislation also created the offence of sabotage, the definition of which included damaging ‘the maintenance of law and order’.25 This was clearly the forerunner of the 1967 Terrorism Act, in which the following offence was created: 2. (1) any person who – (a) with intent to endanger the maintenance of law and order in the Republic or any portion thereof, in the Republic, or elsewhere commits any act or attempts to commit, or conspires with any other person to aid or procure the commission of or to commit, or incites, instigates, commands, aids, advises, encourages or procures any other person to commit, any act; … shall be guilty of the offence of participation in terroristic activities and liable on conviction to the penalties provided for by law for the offence of treason.26

It is worth pausing for a moment to appreciate what this provision does, legally and rhetorically: in a single provision, the regime equated any threat to law and order with ‘terrorism’ and then penalised that threat as treason. In creating these linkages, the regime purported to justify extremely heavy penalties for what could be relatively minor acts of civil disobedience or political protest. However, this scheme also served a powerful rhetorical function: it signalled that those charged were responsible for the prevailing social chaos, thereby endeavouring to shift the blame for any resulting hardship from the government to the accused. Furthermore, by branding political opponents traitors and terrorists, it tied social order to absolute loyalty to the prevailing (apartheid) legal order, which it equated with the state itself. As unrest continued throughout the 1970s and 1980s, other offences would be created27 and existing offences would be redefined, often to the point of absurdity.28 Yet, the overall purpose of this political legislation was clear: to criminalise political planning, expression, 23 Unlawful Organisations Act, Act No 34 of 1960. Commenced 7 April 1960, just 16 days after Sharpeville. There were also significant restrictions on civil liberties prior to Sharpeville, particularly on public gatherings (Riotous Assemblies Act, Act No 17 of 1956); protest and political opposition (Criminal Law Amendment Act, Act No 8 of 1953), backed up with significant penalties, including corporal punishment. 24 General Law Amendment Act (Sabotage Act), Act No 76 of 1962. 25 ibid s 21(1)(b). 26 Terrorism Act, Act No 83 of 1967. The minimum sentence for this crime was five years; the maximum was the death penalty. 27 This body of law was overhauled and consolidated in the Internal Security Act, Act No 74 of 1982, which provided an expanded general framework for the banning of organisations, publications and people (including a prohibition on attending any sort of meeting or of being quoted in the press). Section 54(2) of the Act prohibited the causing of ‘prejudice or interruption’ to any ‘industry or undertaking’ if it was for the purpose of ‘effecting social, political, constitutional or economic change’. 28 eg, the Riotous Assemblies Amendment Act, Act No 30 of 1974, removed the requirement that gatherings be public in order to be banned; thus a gathering of two people in a private home could fall under the ambit of ‘riotous assembly’.

134  Marika Giles Samson or action by anyone external and opposed to the apartheid regime. In this way, the criminal law was used as a primary framework for the repression of political dissent, all in an effort to preserve and enhance the authority of the regime. Briefly put, the regime used criminal law to implement its authoritarian agenda, in a form that, in important ways, deviated from ordinary understandings of criminal law.

A.  Criminal Law Without the Procedural Trimmings While the normative resonance of criminal charges was limited among the non-white community, such charges were effective in one significant respect: they created the conditions for significant periods of detention and incarceration, and even the potential application of the death penalty. These penalties made opponents physically unavailable for anti-government activities: no meetings or rallies, no strategic planning, no speeches at home or abroad. In short, where criminal law could not deter activism, it would exercise absolute physical control to contain it. However, the regime seemed to want to have its cake and eat it too: to reap the symbolic and physical benefits of labelling political opponents as criminals and detaining them, while often seeking to eschew the responsibilities and burdens of criminal prosecution. Repeatedly, the government passed legislation evincing a complete disinterest in being held to the higher procedural and evidentiary standards that criminal justice, including ordinary South African criminal justice, would have required. Indeed, in many instances, it sought to avoid the imposition of any judicial review whatsoever. Starting in 1961, provision was made for the Attorney-General to issue an order requiring anyone arrested for ‘any offence’ to be held without bail or otherwise, initially for 12 days,29 explicitly displacing the courts’ jurisdiction to grant bail, a power considered to lie at the core of habeas corpus jurisdiction. Within two years, the 12-day detention rule was expanded to 90 days for anyone suspected of a political crime or of having ‘any information relating to the commission of an offence or the intention to commit any such offence’; this detention was ‘for interrogation’, initiated on the sole authority of a ­commissioned police officer without a warrant, and prohibited access to counsel or visitors of any kind.30 This statute specifically provided that ‘no court shall have jurisdiction to order the release from custody of any person so detained’.31 By 1965, detention was extended to 180 days, with the possibility of renewal.32 Solitary confinement, extensive interrogation and physical abuse were common during these detentions, as were rearrests immediately following release. Ordinary criminal procedure was also often displaced for those charged under these political statutes. For example, those charged with sabotage were not eligible for

29 General Law Amendment Act, Act No 39 of 1961, s 4. 30 General Law Amendment Act, Act No 37 of 1963, s 17 (commonly known as the ‘90-day detention law’). Detainees could be suspected of ‘having committed or intending or having intended to commit any offence’ under the Suppression of Communism Act, the Unlawful Organisations Act, or the offence of sabotage. 31 ibid, s 17(3). 32 Criminal Procedure Amendment Act, Act No 96 of 1965, s 6. This statute did, at least, permit a detainee to apply to a court for bail after 90 days in the absence of any charges being laid.

Law in Apartheid South Africa  135 trial by jury,33 their trials could be relocated at will, the prosecution could proceed summarily without any preparatory examination (the equivalent of a preliminary ­hearing) and, in a remarkable rejection of the principle of ne bis in idem, an acquittal on sabotage charges would ‘not preclude the arraignment of the person acquitted on any other charges arising out of the acts alleged in the [sabotage] charge’.34 The 1967 Terrorism Act included the same provisions,35 as well as providing for the arrest and indefinite detention for interrogation of any person who ‘is withholding from the South African Police any information relating to terrorists or to offences under this Act’.36 Moreover, despite South Africa portraying itself as a rule of law state with a functional separation of powers, the courts of South Africa were willing to accommodate these departures from normal criminal procedure and the circumscription of their jurisdiction, often by accepting the government’s characterisation of enforcement activities under these statutes as ‘administrative’ rather than criminal.37 This characterisation was far from legally benign. In criminal prosecutions, the government bears the burden of justifying its action by proving its case against a suspect. Different standards of proof might be applied at different stages but the general logic, that the government bears the burden of justifying a deprivation of liberty remains the same. By contrast, a policy of judicial deference prevails in administrative law; that is, there is a general presumption of validity of government action and it is an applicant for judicial review who would bear the generally high burden of demonstrating invalidity. In a state with a virtually impermeable doctrine of parliamentary supremacy, there was no room for challenging the validity of state action that was prima facie enabled by statute. Due to South African courts interpreting enforcement activities through the deferential lens of administrative law, as opposed to criminal justice, they frequently enabled the government to have it both ways, to pair criminal condemnation with a significantly lightened evidentiary load. One of the most (in)famous examples of this can be found in the decision of the Appellate Division in Roussow v Sachs38 in which a prisoner (future judge of the Constitutional Court, Albie Sachs), who had been held in solitary confinement under the 90-day detention law, sought a declaration that he was ‘entitled to at least the same rights and liberties while in custody as are enjoyed by awaiting-trial prisoners or other nonconvicted persons’, including access to adequate exercise and to a supply of reading and writing materials. The law was silent on whether a detainee had such rights. At the first level, the Cape Provincial Division had granted the order sought, noting that the deprivation of that right amount to punishment, and that it would be ‘surprising to find that the Legislature intended punishment to be meted out to an unconvicted prisoner’.39 In other words, 33 The jury system would be abolished altogether in 1969, although according to Albie Sachs, given that juries were ‘racially constituted’ and thus ‘only white persons could feel that they were being tried by their peers’, this was not seen as regressive in itself: Sachs (n 22) 235. 34 General Law Amendment Act (Sabotage Act), Act No 76 of 1962, s 21(4). 35 Terrorism Act, Act No 83 of 1967, s 5. 36 ibid, s 6. The only oversight for this scheme was the Minister of Justice – judicial review was specifically excluded – who was to be furnished once a month with the reasons that the detainee should not be released. 37 eg, see Parker and Mokhesi-Parker (n 10) 36; Dugard, Human Rights and the South African Legal Order (n 6) 343; Forsyth (n 7) 105–08. 38 Roussow v Sachs 1964(2) SA 551 (A). 39 The judgment of the Cape Provincial Division was unreported, but is quoted in Dyzenhaus, Judging the Judges, Judging Ourselves (n 7) 68.

136  Marika Giles Samson the court below had interpreted the legislation through the lens of c­ riminal procedure. The Appellate Division, however, took a different view, reading the statute in light of what it understood to be its administrative purpose. As such, it held that the provision in question was premised on an expectation that the detainee would incriminate himself under interrogation, tacitly accepting that the court should not interfere with that objective, an interpretation that, according to Dyzenhaus, ‘ran counter to the general principles of South African criminal law’.40

B.  The Arbitrariness of Criminal Law Classification Of course, outside the bubble of South Africa’s authoritarian logic, it was obvious that large swaths of what the regime had branded as criminal were not only not inherently criminal activities, but were manifestations of fundamental human rights as recognised by a number of international human rights instruments, such as the civil and political rights of free expression,41 free association42 and freedom of assembly.43 The contrast could hardly have been sharper between the control of such activities as mala prohibita and an emerging international consensus that, far from being mala at all, these were fundamental to human dignity. In addition, many of the evidentiary and procedural rules that the regime had set aside in its prosecution of political activities were also fundamental due process rights guaranteed by international human rights law.44 In the final analysis, did the characterisation of inherently political activities as crimes in this phase ‘work’ to cement the authority of the apartheid regime? Pragmatically, and in the short term, it did: it permitted the state, under the guise of criminal law, to detain and incarcerate its political opponents in significant numbers, and to send many more into exile, effectively demobilising and silencing this resistance to apartheid. However, normatively, the criminalisation of political resistance largely failed to convince the majority of the population that organised opposition to apartheid was behaviour worthy of criminal condemnation. Moreover, the authoritarianism of this phase, set against a pre-existing backdrop of racial discrimination that had already attracted international disapproval, compounded the tension between South Africa and the international community. This schism would lead, ultimately, to the criminalisation of the apartheid regime itself.

The International Crime of Apartheid Apartheid was a remarkable anachronism. The National Party came to power in 1948, the same year in which the United Nations General Assembly (UNGA) adopted the Universal 40 ibid 68. 41 Universal Declaration of Human Rights (UDHR), art 19; International Covenant on Civil and Political Rights (ICCPR), art 19. 42 UDHR, art 20; ICCPR, art 22. 43 UDHR, art 20; ICCPR, arts 21 and 22. 44 UDHR, arts 8, 10 and 11; ICCPR, arts 14 and 15.

Law in Apartheid South Africa  137 Declaration of Human Rights (UDHR). While apartheid rule was ongoing in South Africa, the international community was translating the general guarantees of the UDHR into binding obligations through the adoption of a number of significant human rights treaties: most pertinently, the Convention on the Elimination of Racial Discrimination in 1965, and the following year’s International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. (These latter two are often bundled together and referred to as the International Bill of Rights.) It was therefore inevitable that, having openly adopted racial segregation and disenfranchisement as a core element of its national project, the apartheid regime would attract international scrutiny. From 1952 to 1990, UNGA passed annual resolutions condemning apartheid and by 1974, South Africa had been suspended from the General Assembly. Voluntary, and ultimately mandatory, arms embargoes would be promulgated by the Security Council in 1962 and 1977 respectively,45 and a number of countries imposed economic sanctions and trade restrictions.46 However, in this section I focus less on these obviously political responses and instead concentrate on one particular form of international condemnation: the characterisation, starting in 1966, of apartheid as a crime against humanity. Prior to 1966, resolutions condemning apartheid tended to express ‘regret’ and ‘concern’ that the South African government had failed to ‘reconsider governmental policies which impair the right of all racial groups to enjoy the same rights and fundamental freedoms’.47 The international law case against apartheid (or, put another way, the legal entitlement of the international community to ‘express concern’) centred on the alleged violation of­ Articles 55 and 56 of the UN Charter, according to which UN member states (including South Africa) had pledged themselves to promote, among other things, ‘universal respect for and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’.48 Thus, at least at the outset, the world’s objection to apartheid was based primarily on racial discrimination. After the shock of the Sharpeville Massacre, international concern intensified. This is reflected in the more severe language of UNGA’s 1961 resolution on apartheid, which condemned apartheid as ‘reprehensible and repugnant to human dignity’ and called upon states to consider sanctions.49 The following year’s resolution established a Special Committee on Apartheid and provided states with a detailed list of punitive measures to consider with regard to South Africa, including breaking off diplomatic relations and imposing travel and trade embargoes. 45 In 1964, the UN Security Council passed Resolution 191 (S/5773, 18 June 1964), which (among other things) called for all Member States to cease the sale and shipment to South Africa of all arms and ammunition (para 12). In 1970, the Security Council adopted Resolution 282 (S/RES/282, 23 July 1970), which, in response to ongoing violations of the arms embargo called upon all states to ‘strengthen’ the embargo. Finally, in 1977, the Security Council adopted the first mandatory arms embargo in Resolution 418 (S/RES/418, 4 November 1977), stating that ‘all states shall cease forthwith any provision to South Africa of arms and related materiel of all types, including the sale or transfer of weapons and ammunition, military vehicles and equipment, paramilitary police equipment, and spare parts for the aforementioned, and shall cease as well the provision of all types of equipment and supplies and granted of licensing arrangement for the manufacture or maintenance of the aforementioned’. 46 eg, the United States’ Comprehensive Anti-Apartheid Act of 1986 (HR 4869, 99th Congress). 47 See, eg, UNGA Resolution 1248 (XIII), adopted 30 October 1958. 48 Charter of the United Nations, Art 55(c). 49 UNGA Resolution 1598 (XV), 15 April 1961.

138  Marika Giles Samson A chronological review of the records of the Special Committee on Apartheid and the text of the resolutions on apartheid adopted by the General Assembly after 1960 indicate a growing alarm with the repression, through criminal law, of political dissent.50 Arrests and prosecutions under the Terrorism Act were singled out for particular condemnation. This repression was clearly a significant factor in the characterisation of apartheid as a ‘crime’, although it was certainly not the only one.51 The ‘crime against humanity’ language then became standard form for successive resolutions, until amplified in a significant resolution on apartheid adopted in 1970, which declared that ‘the policies of apartheid of the Government of South Africa are a negation of the ­Charter of the United Nations and constitute a crime against humanity’.52 The preamble to Part F of the 1970 resolution noted ‘with indignation the continued persecution and torture of African patriots and other opponents of apartheid by the government of South Africa under the Terrorism Act of 1967 and other ruthless repressive legislation’.53 This resolution increased momentum for the drafting of an International Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention), which was adopted by the General Assembly in 1973.54 The stated purpose of the Apartheid Convention was to ‘make it possible to take more effective measures at the international and national levels with a view to the suppression, and punishment of the crime of apartheid’. In other words, the treaty aimed to operationalise the international condemnation of apartheid. However what, if any, was the value in declaring apartheid to be a crime against humanity? At a basic level, there was a rhetorical value in calling the apartheid regime ‘criminal’. As John Dugard puts it: ‘[th]e Apartheid Convention was the ultimate step in the condemnation of apartheid as it not only declared that apartheid was unlawful because it violated the Charter of the United Nations, but in addition it declared apartheid to be criminal’.55 50 A detailed timeline is set out in ‘South Africa and the United Nations 1946–1990’, South African History Online, available at: www.sahistory.org.za/topic/united-nations-and-apartheid-timeline-1946-1994. 51 The particular timing of the first reference to apartheid as a crime against humanity, indicates that this shift was more likely triggered by apartheid and apartheid-like policies taking hold beyond South Africa’s borders: UNGA Resolution 2144 (XXI), 26 October 1966 condemning apartheid expressed a broader regional concern, and explicitly recalled two resolutions in late 1965 that had referred to apartheid and apartheid-like policies as a ‘crime against humanity’, namely UNGA Resolutions 2022 (XX) of 5 November 1965 on the subject of threatened white minority rule in what was then Southern Rhodesia (present day Zimbabwe), and 2074 (XX) of 17 December 1965, on South West Africa (present day Namibia). The first of the two precursor resolutions did not actually use the word ‘apartheid’, although it did refer to ‘the policies of racial discrimination and segregation’. The second resolution, on South West Africa, which was under South African control at the time, explicitly referred to apartheid, condemning ‘the policies of apartheid and racial discrimination practised by the Government of South Africa in South West Africa, which constitute a crime against humanity’. 52 UNGA Resolution 2671 (XXV), 8 December 1970, Part F, para 1. At the same time, the inclusion of apartheid in instruments pertaining to crimes against humanity was spreading. There was a reference to apartheid in the Convention on the Non Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, UNGA Resolution 2391 (XXIII), adopted 26 November 1968, which, at Art I(b), precludes the application of a statutory limitation to ‘[c]rimes against humanity … and inhuman acts resulting from the policy of apartheid’. 53 UNGA Resolution 2671 (XXV), 8 December 1970, Part F. 54 UNGA Resolution 3068 (XXVIII), 30 November 1973: the Apartheid Convention. 55 J Dugard, ‘Convention on the Suppression and Punishment of the Crime of Apartheid’, United Nations ­Audiovisual Library of International Law (United Nations, 2008), available at: www.un.org/law/avl. Note, eg, the text of Art I of the Convention (emphasis added): ‘1. The States Parties to the present Convention declare that apartheid is a crime against humanity and that inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination, as defined in Art II of the Convention, are crimes violating the principles of international law, in particular the purposes and principles of the Charter of the United Nations, and constituting a serious threat to international peace and security’.

Law in Apartheid South Africa  139 This was an example of international legal construction of criminal deviance. Criminalisation both summarised and amplified the argument that South Africa was acting illegally, deepening the pariah status of South Africa on the world stage, and putting any rationalising argument beyond the reach of law and legal reasoning. Criminalisation sought to elevate and vindicate the norms and values that apartheid was accused of violating, particularly in the area of human rights and (indigenous) self-determination, and added a new criminal dimension to an arsenal of expressive disapproval that must have started to run low on sufficiently strong words. Moreover, the criminalisation of apartheid carried with it the threat that individual South African leaders might be held personally accountable for the actions of the apartheid regime, perhaps even subject to a criminal trial reminiscent of the trials of members of the Nazi Party following the Second World War. The Apartheid Convention explicitly referred to personal responsibility for crimes against humanity. The first reference is in the requirement that States Parties ‘declare criminal those organizations, institutions and individuals committing the crime of apartheid’.56 States Parties are then called upon to adopt legislative, judicial and administrative measures to prosecute, bring to trial and punish in accordance with their jurisdiction persons responsible for, or accused of, the acts defined in Art II of the present Convention, whether or not such persons reside in the territory of the State in which the acts are committed or are nationals of that State or some other State or are stateless persons.57

Four decades ago, it is not clear what measures states might have been expected to adopt to prosecute perpetrators of apartheid. At that time, about 20 years before the revival of international criminal law as a field of practice, international criminal prosecutions were largely unknown outside territories occupied by a military victor.58 Yet the actual capacity to prosecute members of the regime was perhaps less important than the general expression of a willingness, even aspiration, to hold individuals accountable for apartheid. This expression of willingness may well have put some pressure on individual actors on the ground to consider the extent of their personal loyalty to an increasingly internationally discredited regime; this was a question not only of whether they would bear the stigma of criminalisation but also the risk, however small, of eventual prosecution. It also amplified the condemnation of states that had maintained a relationship with South Africa, putting them on notice that they were perceived as collaborating with an outlaw regime. A further effect of the Apartheid Convention was to overcome an effective legal ­stalemate. Prior to the adoption of the new criminalising approach, the international law case against South Africa was based on a violation of Articles 55 and 56 of the UN Charter. South Africa’s international law response to that case had been to point to a different provision,­ Article  2(7) of the UN Charter, which sets out the principle of non-interference in the

56 Apartheid Convention, Art I(2). 57 ibid Art IV(b). 58 It is perhaps for this reason that one of the most forceful critics of the Apartheid Convention, Professor H Booysen, wondered whether the labelling of apartheid as a crime was not an effort to legalise aggression against South Africa, given that, in his estimation, ‘[t]he object and purpose of the convention can only be achieved by aggression’. H Booysen, ‘Convention on the Crime of Apartheid’ (1976) 2 South African Yearbook of International Law 56, 91.

140  Marika Giles Samson domestic affairs of sovereign states,59 arguably a more important and robust norm of peaceful international relations. The ambitious language of the 1970 UNGA resolution, which sought to describe apartheid as ‘a negation of the Charter of the United Nations’, evinces a desire on the part of UNGA to transcend this impasse. Moreover, while the earlier identification of apartheid as a grave violation of human rights might otherwise have operated as a normative bar to absolutist notions of state sovereignty, international human rights law was still considered to be a largely consensual system, and South Africa had signed on to none of the relevant human rights treaties (and had even abstained in the vote on the UDHR). In other words, South Africa had specifically not fettered its sovereignty on human rights grounds, save perhaps in relation to the more general references in the UN Charter. In contrast, the nascent field of international criminal law held some promise. The International Military Tribunal proceedings at Nuremberg had successfully established that crimes against humanity were so deeply offensive to universalist notions of basic human decency that their inherently criminal nature transcended national boundaries. Thus, national laws made in violation of these norms would not operate as a bar to prosecution.60 Given the level of international exasperation with South Africa’s intransigence evident in the language of the condemnatory resolutions, the criminalisation of apartheid was undoubtedly a last desperate effort to pierce the national veil. The characterisation of apartheid as a crime against humanity was controversial, largely due to the particular geopolitics that generated the Convention. As some critics of the Apartheid Convention have pointed out, the three states that led the charge on the adoption of the Convention, Guinea, Nigeria and the USSR, were all states known to be antipathetic to South Africa.61 The Convention was adopted over the objections of some significant Western powers, including the United States and the United Kingdom, and to this day, the Apartheid Convention has never been ratified by any Western state.62 Furthermore, internally, some parts of South African society persist in rejecting the characterisation of apartheid as a crime against humanity. FW de Klerk, who negotiated the end of apartheid and, for his efforts, shared the Nobel Peace Prize with Nelson Mandela, decried the Apartheid Convention and the characterisation of apartheid as a crime as recently as 2015: Both the resolution and the Convention were political initiatives of the Soviet Union – which had itself committed real crimes against humanity that involved the slaughter of millions of people. In 1976, when the Convention came into force, 23 of the 31 signatories were, according to ­Freedom House, ‘not free’. Six were ‘partly free’ – and only two were ‘free’. Ironically, South Africa

59 ibid 91–93 on the question of sovereignty. 60 The Constitution of the International Military Tribunal, as annexed to the Declaration of London 8 August 1945, as amended by the Protocol of 6 October 1945 (commonly referred to as the ‘Nuremberg Charter’) specifically defines crimes against humanity as ‘inhumane acts committed against any civilian population, … or persecutions on political, racial or religious grounds … whether or not in violation of the domestic law of the country where ­perpetrated’ (Art 6(c), emphasis added). This has the effect of suspending the principle of nulla poene sine lege and, by permitting criminal sanction for activities not unlawful (and perhaps even specifically permitted or required) at the time or in the place they occurred, transcending both sovereignty and time itself. 61 Booysen (n 58) 95. 62 C Lingaas, ‘The Crime Against Humanity of Apartheid in a Post-Apartheid World’ (2015) 2 Oslo Law Review 86, available at: dx.doi.org/10.5617/oslaw2566. However, a review of the available travaux préparatoires, does not reveal any strong objection in principle to the criminalisation of apartheid by Western states: see, eg, Report of the Third Committee, A/8880, 13 November 1972, para 24.

Law in Apartheid South Africa  141 was classified as ‘partly free’ – and had a better human rights score than 27 of the signatories. The 109 states that subsequently joined the Convention included none of the core democracies – not even staunch supporters of the ANC like Sweden and Norway. According to the United States delegate: ‘Deplorable as it is, we cannot, from a legal point of view, accept that apartheid can in this manner be made a crime against humanity. Crimes against humanity are so grave in nature that they must be meticulously elaborated and strictly construed under existing international law’. The idea that apartheid was ‘a crime against humanity’ was, and remains, an ‘agitprop’ project initiated by communists to stigmatise white South Africans by associating them with genuine crimes against humanity – which have generally included totalitarian repression and the slaughter of millions of people.63

Even if the criminalisation of apartheid was, on some level, a piece of Soviet agitprop, it was effective as such in no small part because apartheid fitted comfortably within the definition of a crime against humanity. De Klerk’s standard for ‘totalitarian repression and the slaughter of millions of people’ – asserting essentially that anything short of the Shoah or Stalin’s purges would not qualify as a crime against humanity – is a rather selective view, and legally baseless. The legal definition of a crime against humanity has included, to varying degrees of specificity, various acts when committed as part of ‘a systematic attack against a civilian population’,64 including imprisonment or other severe deprivations of physical liberty;65 torture;66 and persecution of any identifiable group on, among others, political, racial, national, or ethnic grounds.67 What defines a crime against humanity is not the scale, but rather the systematicity of the attack, in whatever form, against a specific kind of target, a civilian population. In that light it is hard to deny that the apartheid regime persecuted the non-white ­majority of South Africa for almost half a century, and they most certainly did so systematically. They created a bureaucracy of racial segregation and degradation, and criminalised the everyday failure to internalise and surrender oneself to that bureaucracy. When the disenfranchised majority refused to adapt to their ‘permanent state of inferiority’ and inevitably rose up, the regime criminalised the uprising. That the attack came, as often as not, with handcuffs and charging sheets, in courtrooms and jail cells, with vague laws and absurd ones, made it no less of an attack. Also, whatever its origins, the notion of apartheid as a crime is not a relic of history. When the Statute of the International Criminal Court (Rome Statute) was adopted in 1998, ‘the crime of apartheid’ was listed as one of the constitutive acts of crimes against ­humanity.68 63 FW de Klerk, ‘Afrikaans identity under huge pressure’, speech to the Bondsraad, Voortrekker ­Monument, Pretoria, 29 May 2015. Text online on Politicsweb at: www.politicsweb.co.za/news-and-analysis/ afrikaans-identity-under-huge-pressure--fw-de-kler. 64 See the definition from the Nuremberg Charter, as well as the definition in Art 7 of the 1998 Statute of the International Criminal Court (Rome Statute), which is considered to be reflective of customary international law. 65 Rome Statute, Art 7(1)(e). 66 ibid Art 7(1)(f). 67 ibid Art 7(1)(h). 68 ibid Art 7(1)(j). For a detailed account of how apartheid qualifies as a crime against humanity, see RC Slye, ‘Apartheid as a Crime Against Humanity: A Submission to the South African Truth and Reconciliation C ­ ommission’ (1999) 20(2) Michigan Journal of International Law 267. The contrary view, that apartheid was not, legally speaking, a crime against humanity prior to its inclusion in the Rome Statute is set out in P Eden, ‘Role of the Rome Statute in the Criminalization of Apartheid’ (2014) 12 Journal of International Criminal Justice 171.

142  Marika Giles Samson As a crime against humanity, apartheid sits, alongside genocide, war crimes and the crime of aggression as one of ‘the most serious crimes of concern to the international community as a whole’.69 This, in turn, reinforces the claim that apartheid was a transgression so serious that it could not be considered a matter of domestic jurisdiction, a position in diametric opposition to the regime’s historic argument against non-interference under Article 2(3) of the UN Charter. The inclusion of apartheid as a Rome Statute crime also removed it from its original context, southern Africa, and in doing so, formally internationalised it.70 In its Elements of Crimes, the ICC distinguishes the crime of apartheid not by geography, but rather by its political context: ‘an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups’, with the perpetrator committing inhumane acts with the intent ‘to maintain such regime by that conduct’.71 While the characterisation of crimes in other contexts as ‘apartheid’ remains controversial,72 it is quite likely that, if ever charges are laid for the crime of apartheid, the first person charged will not be South African.

Conclusion During the 50 years following the Second World War, as the international human rights system waxed and European colonial rule waned, the National Party endeavoured to build a system of racially segregated economic and political development in South Africa. However baffling to modern eyes, this project was sincerely promoted as an exercise in self-­determination, a way for all races to coexist peacefully on the southern tip of the African continent, free from the threat of communist domination. This sincerity was acknowledged by the TRC: [T]he Commission … affirms its judgement that apartheid, as a system of enforced racial discrimination and separation, was a crime against humanity … At the same time, the Commission acknowledges that there are those who sincerely believed differently and those, too, who were blinded by their fear of a Communist ‘total onslaught’.73

69 Rome Statute, Preamble. 70 Prior to the adoption of the Rome Statute, there was considerable debate over whether apartheid as criminalised by the Apartheid Convention was geographically bound: see Eden (n 68) 177. 71 ICC Elements of Crimes, ICC-ASP/1/3, 123. 72 Most notably, the characterisation as ‘apartheid’ of certain dimensions of the Israeli–Palestinan conflict by, among others, John Dugard, in his capacity as United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories: Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967 (UN Doc A/HRC/4/17, 29 January 2007). Notably, another noted South African jurist, Richard Goldstone vehemently disagrees with this characterisation, most succinctly in ‘Israel and the Apartheid Slander’ The New York Times (1 November 2011). The situation of Palestine is currently under preliminary examination at the ICC, and while the charges being contemplated have not been specified, the Office of the Prosecutor has reported receiving ‘information regarding the purported establishment of an institutionalised regime of systematic discrimination that allegedly deprives Palestinians of a number of their fundamental human rights’: Report on Preliminary Examination Activities 2017 (4 December 2017) para 63, available at: www.icc-cpi.int/itemsDocuments/2017-PE-rep/2017-otp-rep-PE_ENG.pdf. 73 TRC Report, Appendix to Vol 1, ch 4, para 1.

Law in Apartheid South Africa  143 Apartheid South Africa marks an important historical and ideological crossroads, between colonial and post-colonial rule, between tribalism and pluralism, between East and West, between ideals of state sovereignty and multilateralism, between authoritarianism and liberalism. Both within South Africa and beyond, the battle over apartheid was a battle for normative dominance and control, steeped in idealism and ideology on all sides. In this chapter, I have argued that one of the ways in which this battle was waged was through the criminal law, both domestically and internationally. The use of criminal law was as much a rhetorical device as a pragmatic one. Within South Africa, the apartheid legal order sought to conceal its punitive effects, first by the assertion of itself as mere social organisation, and later, as a buttress against chaos and violence. In both phases, the regime sought to avail itself of the advantages of administrative law, particularly judicial deference, while eschewing the procedural and evidentiary responsibilities of criminal law. In this way, the legal structures of apartheid are a case in point on the potential fluidity of legal classification. Yet this case also, perhaps, demarcates the outer limits of this fluidity. While efforts to conceal the violence of apartheid itself may have succeeded among the beneficiaries and believers of apartheid within South Africa, they never achieved any traction among the majority of the population, and proved highly unsuccessful internationally. As such, the story of criminal law in apartheid South Africa is as much a story of resistance as it is of authority, and as much about the limitations of criminal law as it is about its power. As the apartheid regime became increasingly authoritarian, it not only expanded the ambit of criminal law well beyond the normal boundaries of mala in se, it criminalised that which, internationally, had been declared to be expressions of fundamental human rights. It was at this point that, in the eyes of the international community, apartheid’s law became transgressive – criminal – in itself. As the apartheid regime criminalised that which the international community had sacralised, it drew the gaze of international criminal law. The criminalisation of apartheid came to pass through the alliance of the majority of South Africans and the international community against the regime and under the banner of human rights. After a long and hard fought battle, human rights ideology ultimately prevailed over the regime’s apartheid ideology and authoritarian tactics. This was a struggle for normative dominance, both inside and outside South Africa, expressed, at least in part, in legal terms, with both the regime and its opponents trying to label the other as ‘criminal’. In the end, it was against apartheid itself that the charges would stick.

144

part ii Courts, Lawyers and Repression

146

7 Coercion and Consensus: Using the Law to Change ‘the Moral Character of Italians’ ALESSANDRA BASSANI AND AMBRA CANTONI

Introduction After seizing power in 1922, the Fascist regime brought its revolution to fruition in the 1930s. The regime utilised instruments of repression to protect its hold on power, and there are two areas wherein this was particularly evident: its interventionist policy, and the complex strategies it used to form social consensus.1 In order to achieve this revolutionary political endeavour, the regime used the law as an instrument to intervene in and transform reality. A key example of this can be seen in the radical legislative reforms undertaken by Alfredo Rocco starting in 1926, which need no explanation here.2 There are many ways for the law to influence reality. As far as this chapter is concerned, we shall examine criminal law, and specifically the repression of ‘political’ crimes which were punished by the Special Tribunal for the Defence of the State. In a previous paper, we analysed the crime of espionage, namely the disclosure of political secrets. We were able to demonstrate clearly how Mussolini used criminal law to enact repressive measures, which were not intended so much to punish conduct that put the state in danger, but rather to punish ‘enemies’3 who were seen as dangerous to the regime because of what they represented. This gave the regime the space it needed to implement flexible strategies as it reacted to domestic and international circumstances and events, such as the dissemination of propaganda by communists who had taken refuge in France, separatist

1 G Melis, ‘Introduzione’ in G Melis (ed), Lo Stato negli anni Trenta. Istituzioni e regimi fascisti in Europa (Bologna, il Mulino, 2008). The spirit of the Fascist regime can be summed up in the words of Mussolini himself: B Mussolini, ‘Fascismo’ in Enciclopedia italiana, XIV (Rome, 1932–51) 847: ‘Fascism stands for liberty. And for the only liberty worth having, the liberty of the State and of the individual within the State’. 2 A Aquarone, L’organizzazione dello Stato totalitario (Turin, Einaudi, 1965); M Sbriccoli, ‘Caratteri originari e tratti permanenti del sistema penale italiano (1860–1990)’ in L Violante (ed), Storia d’Italia. Annali 14: Leggi, diritto, giustizia (Turin, Einaudi, 1998); G Neppi Modona, ‘Principio di legalità e giustizia penale nel periodo fascista’ (2007) 36 Quaderni fiorentini per la storia del pensiero politico moderno 983; L Lacchè, ‘Tra giustizia e repressione: i volti del regime fascista’ in L Lacchè (ed), Il diritto del Duce. Giustizia e repressione nell’Italia fascista (Rome, Donzelli, 2015) IX–XXXVIII. See also P Garfinkel, Criminal Law in Liberal and Fascist Italy (Cambridge, Cambridge University Press, 2016) and ch 1 by Lacchè in this volume. 3 E Musumeci, ‘The Positivist School of Criminology and Italian Fascist Criminal Law: a Squandered Legacy?’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015) 56.

148  Alessandra Bassani and Ambra Cantoni movements in the northeastern regions, changes in European alliances and the Spanish Civil War.4 Indeed, the Special Tribunal was able to use political crime as an effective cover for the repression of all types of conduct. In this chapter, we shall examine the decisions issued by the Special Tribunal following the enactment of two laws at the end of the 1930s which significantly expanded its jurisdiction to include violations of currency legislation and the most serious common crimes. There is no doubt that such an expansion had already been written into the Tribunal’s DNA the moment it was created, especially as Rocco saw it. As Sbriccoli pointed out, this is an inherent characteristic of power: The politicization of common crimes is not so much the result of a deliberate, well-thought-out choice on the part of lucid, perverse jurists, but rather the natural outcome of the progressive absolutization of power and the bureaucratic elephantiasis that that necessarily entails.5

Our previous analysis warrants further exploration. Luigi Lacchè has explained how ‘the Special Tribunal, created to defend Fascism and state security … was one of the regime’s most significant political innovations’ and established ‘a constitutional order of political justice’.6 Recent historiographical work has also provided a good deal of information on which to reflect, concerning both the composition and organisation of the Special Tribunal,7 as well as the instruments used to neutralise dissent: violation of the principle of legality;8 a mix of legal and extra-legal devices;9 and the use of criminal psychiatric hospital.10 These contributions allow us to have a comprehensive understanding of the Special Tribunal’s rulings.11 In giving form to reality, the effectiveness of law ‘lies … in producing a social form that becomes governable because it has been completely recreated’.12 In order to bring its social form to fruition, Mussolini’s political system had to ‘forestall any formation of a popular opinion with political connotations and close off all political spaces in which such an opinion might find expression, thereby preventing any possible friction with 4 A Bassani and A Cantoni, ‘Il segreto politico nella giurisprudenza del Tribunale speciale per la difesa dello stato’ in L Lacchè, Il diritto del Duce. Giustizia e repressione nell’Italia fascista (Rome, Donzelli, 2015). 5 M Sbriccoli, Crimen laesae maiestatis: Il problema del reato politico alle soglie della scienza penalistica moderna (Milan, Giuffrè, 1974) 263. 6 Lacchè, ‘Tra giustizia e repression’ (n 2) XXII and XXV. 7 A Meniconi, ‘La magistratura e la politica della giustizia durante il fascismo attraverso le strutture del ministero della Giustizia’ in L Lacchè (ed), Il diritto del Duce. Giustizia e repressione nell’Italia fascista (Rome, Donzelli, 2015); LP D’Alessandro, ‘Per una storia del Tribunale speciale: linee di ricerca tra vecchie e nuove acquisizioni’ in L Lacchè (ed), Il diritto del Duce. Giustizia e repressione nell’Italia fascista (Rome, Donzelli, 2015). 8 S Skinner, ‘I reati contro lo Stato e l’intreccio tra fascismo e democrazia negli anni venti e trenta del Novecento: vilipendio, libello sedizioso e la sospensione della legalità’ in L Lacchè, Il diritto del Duce. Giustizia e repressione nell’Italia fascista (Rome, Donzelli, 2015). 9 C Poesio, ‘Il confino di polizia, la “Schutzhaft” e la progressiva erosione dello Stato di diritto’ in L Lacchè (ed), Il diritto del Duce. Giustizia e repressione nell’Italia fascista (Rome, Donzelli, 2015) 95. 10 M Petracci, ‘La follia nei processi del Tribunale speciale per la difesa dello Stato’ in L Lacchè, Il diritto del Duce. Giustizia e repressione nell’Italia fascista (Rome, Donzelli, 2015). 11 See also S Vinci, ‘La politica giudiziaria del fascismo italiano nella giurisprudenza del Tribunale speciale per la difesa dello Stato (1926–1943)’, available at: www.historiaetius.eu (2016) 10, paper 14; J Torrisi, Il Tribunale Speciale per la Difesa dello Stato: il giudice politico nell’ordinamento dell’Italia fascista (1926–1943) (Bologna, BUP, 2016); and M Franzinelli, Il Tribunale del Duce. La giustizia fascista e le sue vittime (1927–1943) (Milan, Mondadori, 2017); E Gallo, Il Tribunale Speciale per la difesa dello Stato e il suo ambiente politico-culturale (Rome, Stilgrafica, 1980) 11. 12 A Garapon, Del giudicare. Saggio sul rituale giudiziario (Milan, Raffaello Cortina, 2007) 53.

Coercion and Consensus  149 the government’13 through political confinement14 and exclusion from normality.15 According to Colarizi, the repression that was carried out in the 1920s was thus followed by the use of mass persuasion techniques in the 1930s, operating through a ‘consensus machine’ which could help form a new Fascist order.16 The Special Tribunal for the Defence of the State was one of the key cogs in that machine: ‘Without the aid of symbolism and ritual, the law would remain an unreal, illusory idea: it needs symbolism in order to be transformed into a concrete e­ xperience’.17 To determine the Special Tribunal’s influence on Italian society, we thought that it was necessary to examine how the Tribunal enforced the law once its powers were significantly expanded in the second half of the 1930s and following the outbreak of war, with a focus on the two selected spheres of currency legislation and serious common crimes. This function of concretising the ideal through judicial action, combined with its sheer symbolic power, allows us to interpret the Tribunal and its jurisprudence from three points of view: first, it justifies the fact that the Tribunal continued to exist even after the enactment of the Penal Code and the Code of Penal Procedure, the reform of the assize courts, and the ‘normalisation’ of the judiciary;18 secondly, it explains the role it played in the 1930s as a sort of ‘control room’, picking and choosing which cases to handle, and which to leave to the ordinary courts;19 and above all, it clarifies how the expansion of ‘political’ crimes served to create a favourable public opinion of the regime. However, in so doing it is important to remember that the Fascist regime did not choose to destroy legality, but rather to falsify it: such was made clear by Calamandrei shortly after the fall of the regime, when he spoke of a ‘vulgar presumption of Machiavellianism’.20 An important concept to keep in mind when analysing any legal manifestation of Fascism21 is that of a ‘false-bottom regime’, involving ‘planned’ and ‘legal illegality’22 of which the experience of the Special Tribunal provided a clear example. 13 S Colarizi, L’opinione degli italiani sotto il regime 1929–1943 (Rome–Bari, Laterza, 2000) 4; Gallo (n 11) 5. 14 C Poesio, Il confino fascista. L’arma silenziosa del regime (Roma–Bari, Laterza, 2011). 15 Petracci (n 10) 218–23. 16 Colarizi (n 13) passim. 17 Garapon (n 12) 53. 18 See M Meccarelli, ‘Outside Society: Political Emergency, Widening of the Penal System and Regimes of ­Legality in the Late Nineteenth Century. A Comparison between Italy and France’ in L Lacchè and M Stronati (eds), Beyond the Statute Law: The ‘Grey’ Government of Criminal Justice Systems (Macerata, eum, 2011) 39–40. 19 L Lacchè, ‘The Shadow of the Law: the Special Tribunal for the Defence of the State between Justice and P ­ olitics in the Italian Fascist Period’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015) 26: ‘The investigating judges (giudice istruttore or commissione istruttoria) of the Special Tribunal were empowered to divert many cases to the ordinary tribunals, or to acquit certain defendants’; Lacchè, ‘Tra giustizia e repressione’ (n 2) XXV. 20 P Calamandrei, ‘Costruire la democrazia (premesse alla Costituente)’ in M Cappelletti (ed), P Calamandrei, Opere giuridiche, vol 3 (Napoli, Morano, 1968) 130. Similarly, Costa pointed out that ‘the terminology of the rule of law was not expunged from the regime’s rhetoric, nor was the rule of law abolished; instead, they preferred to suspend the pendulum on the pole of authority, rather than on that of the guarantee of rights’: P Costa, ‘Pagina introduttiva (Il principio di legalità: un campo di tensione nella modernità penale)’ (2007) 36 Quaderni fiorentini per la storia del pensiero politico moderno 16. See also S Skinner, ‘Fascist by Name, Fascist by Nature? The 1930 Italian Penal Code in Academic Commentary, 1928–46’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015) 61. 21 Neppi Modona, ‘Principio di legalità e giustizia penale nel periodo fascista’ (n 2); and Skinner, ‘I reati contro lo Stato e l’intreccio tra fascismo e democrazia’ (n 8). 22 Calamandrei, ‘Costruire la democrazia’ (n 20) 131: ‘Fascism was the regime of adulterated legality, of legal fraud organised by authority’; P Calamandrei, ‘La funzione parlamentare sotto il fascismo’ in N Bobbio (ed), Scritti e discorsi politici Vol II – Discorsi parlamentari e politica costituzionale (Florence, La Nuova Italia 1966) 329–31.

150  Alessandra Bassani and Ambra Cantoni In any case, this jurisdictional body must be studied from a perspective that combines the state-sponsored illegality so clearly described by Calamandrei with the Tribunal’s repressive and propagandistic nature. The very creation of the Special Tribunal was linked to propagandistic needs as well as to the regime’s relationship with popular opinion. Indeed, Rocco justified its establishment by constructing a narrative in which the Italian people themselves wanted extraordinary repressive measures to be taken against opponents of the regime.23 Even the death penalty, which was reintroduced with the establishment of the Special ­Tribunal, ‘was designed to intimidate, but also to serve an important symbolic function’.24 In that regard, it has long been clear to historiographers that ‘in every modern totalitarian regime – and such was the case for Fascism as well – there has always been a very close correlation between consensus and violent repression’.25 Such a two-fold dynamic allowed the Fascist regime to take root and grow within Italian society,26 thanks in part to the use of violence and the cult of virility, which helped create a sort of mass fascination among the population.27 It was again Calamandrei who observed that the regime maintained its dual role in institutions: the unification of party with state was only achieved in the person of the Duce. At every other level there were two faces, with one being the reassuring, traditional constitutional monarchy – ‘which remains on stamps like a coat of arms’28 – and the other being the menacing, coercive and armed Fascist Party.29 What role did the Special Tribunal for the Defence of the State play in this dual political order?30 The Special Tribunal had a ‘role as a propagandistic showcase’:31 it presented an image and acted as a brand for the regime. The regime implemented a ‘blend of legal and extra-legal devices’ in order to ‘falsify legality’,32 and the function of the Special Tribunal in this mix can only be understood when looked at through the lens of a ‘­repression/consensus’ dynamic. The regime made a conscious decision to adopt a ‘­strategy of duality’ in its legal system right from the start, which gave rise to the many apparent ambiguities associated with the Special Tribunal: it was made up of militia members and magistrates (first military magistrates, then ordinary ones);33 it maintained

23 Lacchè, ‘Tra giustizia e repressione’ (n 2) XXI. See Atti Parlamentari, Camera dei Deputati, Legislatura XXVII – Sessione 1924–26 – Documenti – Disegni di legge e Relazioni, Vol XX, Roma 1929, no 1100, Disegno di legge presentato dal Capo del Governo, Ministro Segretario di Stato Ministro della guerra (Mussolini) e dal Ministro della giustizia e degli affari di culto (Rocco) – Provvedimenti per la difesa dello Stato (9 novembre 1926), 2: ‘it is clear that if the State doesn’t quickly intervene in order to prevent and to repress, people will take the initiative spontaneously, deeply offending the law’s majesty and the State’s sovereignty’. 24 Lacchè, ‘The Shadow of the Law’ (n 19) 20; and S Skinner, ‘Tainted Law? The Italian Penal Code, Fascism and Democracy’ (2011) 7 International Journal of Law in Context 423. 25 M Canali, ‘Repressione e consenso nell’esperimento fascista’ in E Gentile (ed), La modernità totalitaria. Il fascismo italiano (Rome–Bari, Laterza, 2008) 57. 26 Colarizi (n 13) 3. 27 A Aquarone, ‘Violenza e consenso nel fascismo italiano’ (1979) 10(1) Storia contemporanea 145, 146. 28 Calamandrei, ‘Costruire la democrazia’ (n 20) 131. 29 Calamandrei, ‘La funzione parlamentare’ (n 22) 355–56; M Gregorio, Parte totale. Le dottrine costituzionali del partito politico in Italia tra Otto e Novecento (Milan, Giuffrè, 2013) 157–89. 30 The role of the Special Tribunal has not yet been considered from this perspective: see Canali (n 25) 75–76. 31 AL Klinkhammer, ‘Was there a Fascist Revolution? The Function of Penal Law in Fascist Italy and Nazi Germany’ (2010) 15 Journal of Modern Italian Studies 390, 395. 32 Lacchè, ‘Tra giustizia e repressione’ (n 2) XXVII; Poesio, ‘Il confino di polizia’ (n 9) 95. 33 Calamandrei, ‘La funzione parlamentare’ (n 22) 330; D’Alessandro (n 7) 162–73.

Coercion and Consensus  151 a wartime military criminal code in peacetime; and as we shall see, it prosecuted the exportation of foreign currency, rapes and infanticide as political crimes, seemingly without ever violating the rule of law.34

Economic Crimes The history of the Italian economy in the 1930s is marked by several key events which led lawmakers to establish that violations of currency legislation were to be considered political crimes, and that as such, they were to fall under the jurisdiction of the Special Tribunal. An examination of these events sheds light on the measures taken by the Fascist government to gain popular consensus (albeit only among some segments of the population), in addition to demonstrating how the regime relied on regulatory and political instruments to establish an ‘effective’ repressive apparatus for economic crimes. There is no doubt that the end of 1933 and the early months of 1934 marked a turning point in the history of Italy’s economy and its currency policy.35 Contrary to what most Western countries were doing at the time, in the three-year period between 1930 and 1933, the Italian government had adopted a laissez-faire approach to economic policy, foreign trade and currency policy.36 There were many who had strongly supported such an approach at the time, including Felice Guarneri,37 who was a senior manager at Confindustria and Assonime.38 Indeed, in a 1931 speech, Guarneri had declared that any measure of control over foreign trade and currency would have led to disastrous results for the Italian economy. Confindustria continued to support this position in 1931 and 1932. Around the end of 1933, however, Giovanni Agnelli39 wrote an article for La Riforma Sociale entitled ‘Per la ripresa delle esportazioni’ (‘On export recovery’), wherein he stated that foreign trade could not be left to individuals, but rather necessitated regulation through agreements that responded to ‘a higher will in the public interest’. He even went so far as to lay out practical proposals for state-run foreign trade. Though they left Italian industrialists divided, Agnelli’s proposals had been launched in a moment of stark economic crisis and thus could not be ignored. Italy was facing an extremely unfavourable balance of payments and the Bank of Italy’s gold reserves were continuing to diminish drastically due to a lack of emigrant remittances, inexistent revenues from tourism and transportation, and the

34 Calamandrei (n 22) 331: ‘it leaves the old laws unchanged and at the same time it rids itself of their observance’. 35 A Gagliardi, L’impossibile autarchia. La politica economica del fascismo e il Ministero scambi e valute (Soveria Mannelli, Rubbettino, 2006) 25 ff; G Raitano, ‘I provvedimenti sui cambi in Italia nel periodo 1919–1936’ in GC Falco (ed), Ricerche per la storia della Banca d’Italia, vol VI (Bari, Laterza, 1995) 270–76. See also G Basini, ‘La legislazione monetaria italiana nelle crisi tra le due guerre’, available at: www.historiaetius.eu (2016) 10, paper 2. 36 Gagliardi (n 35) 18–25; G Tullio, ‘La politica commerciale durante il fascismo’ in D Fausto (ed), Intervento pubblico e politica economica fascista (Milan, FrancoAngeli, 2007); AO Hirschmann, Potenza nazionale e c­ ommercio estero. Gli anni trenta, l’Italia, la ricostruzione (Bologna, il Mulino, 1987) 164–80. 37 Gagliardi (n 35) 19–20; L Zani, Fascismo, autarchia, commercio estero (Bologna, il Mulino, 1988) 75. 38 Confindustria is the main association representing manufacturing and service companies in Italy. It was founded in 1910 by Italian entrepreneurs to represent and safeguard the interests of industry. Assonime is the association of Italian joint stock companies, established in 1910 as a research centre by a group of industrialists and financiers. 39 Gagliardi (n 35) 31. Of the same opinion as Agnelli was Alberto Pirelli, then president of Assonime: see Gagliardi, ibid, 31; Zani (n 37) 83.

152  Alessandra Bassani and Ambra Cantoni a­ bsolute failure on the part of the government to prevent capital flight in the years leading up to the publication of Agnelli’s article.40 On top of the economic crisis, the Italian ­government was also preparing to go to war in Ethiopia, which entailed yet more costs that would have to be dealt with.41 Faced with these two problems, Mussolini realised that in order to obtain the financial resources necessary to afford such an effort, he would have to change Italy’s trading system and react to the protectionist policies of other states. Thus, the government decided to approve new rules on currency exchange and the introduction of foreign currencies into the country with a ministerial decree issued in February 1934, which established that anyone who imported foreign currencies into Italy had to declare it to the customs authority and pay a customs duty. In the months that followed, the government and the Ministry of Finance took further legislative action to prohibit operations in foreign currency. Specifically, companies and banks were forbidden to export Italian currency, and banks, companies, corporations and institutions were required to report their foreign currency holdings to the Bank of Italy, as well as any foreign debt that they owned. Nonetheless, these measures still proved to be completely ineffective. As a result, Royal Decree no 1942/1934 was issued in December 1934 to introduce much more stringent restrictions on the use of foreign currency. This decree stated that all foreign currencies present in Italy were to be purchased by INCE (Istituto Nazionale per il commercio con l’estero, or National Institute for Foreign Trade)42 and that all payments for goods purchased abroad were to be made by it through the Bank of Italy. Thus, the Fascist government had moved from a heavily laissez-faire approach in the period between 1930 and 1933 to a system of control run by several public institutions.43 This decree was soon followed by other measures which ended up establishing a system that involved several government entities in the management of foreign exchange. However, confusion ensued, as these entities had conflicting and often overlapping powers. Above all, this situation was extremely detrimental to companies, institutions and corporations that engaged in foreign trade. For example, in a secret police report found in the Duce’s classified correspondence, the author expressed disappointment with the relationships between the Bank of Italy, the Ministry of Finance, the Ministry of Corporations and the National Institute for Foreign Trade, complaining that they were ‘beset with an indescribable confusion that negatively affected production and trade … and that they currently amounted to nothing short of obstructionism’.44

40 F Guarneri, Battaglie economiche tra le due guerre (Bologna, il Mulino, 1988) 179–82 and 258, 266; V Giura, ‘L’Impresa etiopica: riflessi internazionali economici e sociali’ in D Fausto (ed), Intervento pubblico e politica economica fascista (Milan, FrancoAngeli, 2007) 160–61; Tullio (n 36) 339–40; ML Cavalcanti, ‘La politica monetaria del fascismo’ in D Fausto (ed), Intervento pubblico e politica economica fascista (Milan, FrancoAngeli, 2007) 481; Colarizi (n 13) 83–99; Hirschmann (n 36) 166. 41 GW Baer, La guerra Italo-etiopica e la crisi dell’equilibrio europeo (Bari, Laterza, 1970); G Maione, L’imperialismo straccione. Classi sociali e finanza di guerra dall’impresa etiopica al conflitto mondiale (1935–1943) (Bologna, il Mulino, 1979) 107; Giura (n 40) 143–68; Cavalcanti (n 40) 476–79; AJP Taylor, The Origins of the Second World War (London, Hamish Hamilton, 1961). 42 On INCE see Gagliardi (n 35) 66; Raitano (n 35) 277. 43 Gagliardi (n 35) 18–23; Raitano (n 35) 265–332; Tullio (n 36) 362; Cavalcanti (n 40) 476–92; Hirschmann (n 36) 164–80. 44 Arch Centrale Stato (ACS), Fondo Ministero Interni, Direzione Generale Pubblica Sicurezza, Divisione Polizia Politica 1927–1944, busta 172, Istituto Nazionale Cambi, Rapporto del 7.4.1935.

Coercion and Consensus  153 To address these serious problems, the Sovrintendenza allo scambio delle valute (­Superintendency of Foreign Exchange) was created in May 1935. This government body reported directly to the head of government, and Mussolini appointed Felice Guarneri as superintendent. This was a purely political decision, as Guarneri – a manager of Confindustria who up until a few months earlier had been a steadfast supporter of laissez-faire foreign trade policy – would provide the government with guaranteed collaboration on the part of industrialists and peaceful relations with the ‘corporations’.45 Above all, Guarneri’s appointment satisfied the regime’s totalitarian ambitions: indeed, he was a ‘pure technocrat’ with no ties to politics and no political weight. As such, he was ‘personally and directly controlled by Mussolini … he was allowed to study a problem … but he was not allowed to enter into the merits of political decisions’.46 This new government body was in charge of regulating imports, foreign trade and the transfer and distribution of foreign currencies. The goal was to rationalise and streamline a system that up to that point had shown itself to be seriously lacking in a number of areas. The Superintendency was also in charge of coordinating import and export services, as well as regulating the purchase of raw materials from abroad on behalf of the government. Yet, despite these measures, the economic situation became even more complicated in ­November 1935, when the League of Nations condemned Italy for attacking Ethiopia and imposed economic sanctions on the country in accordance with article 16 of its Covenant.47 In such an emergency, the Superintendency acquired a key role in Italian economic policy, and in December of the same year it was transformed into the Under-secretariat for Trade and Foreign Exchange. As Mussolini himself stated, the goal of this change was to grant the office greater dignity and prestige, especially because it would now also be engaging with foreign governments.48 In reality, not only did the Under-secretariat acquire more autonomy than other government bodies, it also took over some of their duties: indeed, it was now in charge of governing foreign trade policy and currency policy.49 To understand fully this new institution’s administrative and political role, as well as the influence it had over the formation of popular opinion, it is important to remember that it ultimately had the final say over which goods were to be imported and exported: in other words, it decided which economic sectors could continue to import their raw materials from abroad, and which could no longer do so; similarly, it determined which Italian goods could be exported; and in addition, the Under-secretariat, acting through its subordinate bodies, was in charge of paying foreign suppliers. Thus, it is easy to see just how central a role it played in Italian economic policy.

45 Zani (n 37) 76–77. 46 ibid 76. 47 The Covenant of the League of Nations (1919), Art 16: ‘Should any Member of the League resort to war in disregard of its covenants under Articles 12, 13 or 15, it shall ipso facto be deemed to have committed an act of war against all other Members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations, the prohibition of all intercourse between their nationals and the nationals of the covenant-breaking State, and the prevention of all financial, commercial or personal intercourse between the nationals of the covenant-breaking State and the nationals of any other State, whether a Member of the League or not’. Yale Law School, The Avalon Project, Documents in Law, History and Diplomacy, available at: avalon.law.yale. edu/20th_century/leagcov.asp. 48 Guarneri (n 40) 115. 49 ibid 116; see also Zani (n 37) 79.

154  Alessandra Bassani and Ambra Cantoni Mussolini strongly supported the creation of the Under-secretariat with Guarneri at the helm, but Azzolini (governor of the Bank of Italy) and the ministers from the National Council of Corporations were not so enthusiastic. Indeed, they saw this new institution take on new powers to the detriment of the government bodies under their management.50 Despite such opposition, the Minister of Finance, Thaon di Revel, paid no heed to the discontent expressed by the Bank and by his fellow ministers. Instead, in February 1936, he presented a document to the Grand Council of Fascism wherein he stated that importation could not be left to the private sector because too many non-essential goods were still being imported into Italy. According to the Minister, this was no way for private businesses to conduct themselves, as it went ‘contrary to the public ethic of Fascism’51 – an ethic which instead required a policy of autarky. Indeed, the Minister believed that this was the only economic system that could prevent Italy from being blackmailed by the countries that had imposed sanctions, and a state was truly free only when it did not have to succumb to such threats from abroad. With that as a starting point, Thaon di Revel set forth three principles: Italy’s gold reserves were not to be touched; the Fascist state could not allow private entities to hold reserves of foreign currency for private gain; and foreign trade was to be declared ‘a public function regulated and controlled by the government’.52 The Grand Council of Fascism reviewed the Minister of Finance’s report and passed a resolution on 4 February 1936, wherein it was stated that, ‘having examined the problem of foreign trade in accordance with Fascist economic doctrine, … . [the Grand Council hereby] recognizes foreign trade as a function of public interest which justifies direct control on the part of the Corporative State’.53 Though there were some dissenting voices,54 this decision was met with approval on the part of experts and politicians at the time, some of whom considered it an absolutely innovative proposition.55 In reality, however, it merely confirmed what had already been the prevailing state of affairs; after all, the fact that the Duce’s classified correspondence contained secret police reports on the government bodies in charge of trade and currency policy spoke volumes about Mussolini’s interest in these areas, not to mention the fact that the Superintendency of Foreign Exchange reported directly to the head of government, which was an unequivocal sign of the fundamental role that this office was to play in the political landscape of the time. Although the Grand Council’s resolution simply confirmed an existing situation, it nonetheless represented a turning point: finally, the groundwork had been laid in unequivocal terms for a future where violations of currency legislation could be prosecuted as political crimes. Indeed, with this resolution, the Fascist Party’s main body – which was also an advisory body to the government – decided that currency policy and foreign trade were to fall under the government’s policy decisions (as opposed to the authority of the Bank of Italy). Thus, they became predominantly political issues, meaning that any violation of legislation on these matters now became a political offence. 50 On the Superintendency, the Under-secretariat, the Bank of Italy and other institutions see Guarneri (n 40) 114, 122; also Zani (n 37) 84–92. 51 Gagliardi (n 35) 74. 52 ibid 74; Tullio (n 36) 380–88. 53 Partito Nazionale Fascista, Il Gran Consiglio del Fascismo nei primi quindici anni dell’era Fascista (Bologna Stabilimenti Poligrafici Editori de ‘Il resto del Carlino’, 1938) 602–03. 54 Zani (n 37) 94. 55 ibid 95–96.

Coercion and Consensus  155 This new approach to the regulation of foreign trade and currency policy was also important in that it represented a necessary preliminary step towards a new phase of control in these matters. Initially, the government had been preoccupied with winning consensus on its economic initiatives (culminating in the propaganda campaign that was launched once economic sanctions had been imposed); thus, it had sought to adopt policies that would please certain segments of the population. Now, however, the regime was intent on laying the groundwork for a new phase, one of repression. To this end, the Under-secretariat for Trade and Foreign Exchange was transformed into a Ministry in 1937, which was a logical part of Mussolini’s plan: doing so definitively stripped the Bank of Italy of authority over currency policy and transferred it to the Ministry, which would also now be in charge of INCE. Of course, this transformation of the Under-secretariat did not suddenly make its existing problems disappear, but Royal Decree no 794/1938 (which concerned the procedure for determining violations) did grant new powers to the new Ministry, including the task of determining any violations of legislation on foreign trade and currency (at the time, such violations were deemed to be of an administrative nature).56 The decree also set up a commission at the Ministry which could advise it on monetary penalties to be imposed when it had to rule on a case. Another step towards a more pronounced policy of repression can be found in Royal Decree no 1928, issued in 1938. For the first time, this decree introduced cases of violations which were to be considered crimes punishable by restrictions on personal freedom.57 Nonetheless, despite these measures, the government was still not convinced that these punishments could effectively repress those who attempted to circumvent legislation on foreign trade and currency. Although more significant violations could result in punishments that placed restrictions on personal freedom, such as house arrest or imprisonment, there were still Italians ‘who, heedless of the national interest and enticed by personal gain, have dedicated themselves to these criminal ways which deserve to be punished more severely’.58 Consequently, in 1939 the Italian government decided that the actions taken against violations of currency legislation were not effective enough, and that they could and should be strengthened when dealing with those who harmed the national economy by betraying Fascist morals and ideology for their own personal interest. Thus, an effective system of repression had to be developed – one that could serve as an example for all those who planned on enriching themselves at Italy’s expense. To that end, the government formally asked the Parliament to approve a new law that would take the principle expressed in February 1936 to extremes, marking a serious change of direction in the way the regime looked at the role of currency policy and foreign trade in the pre-war Italian economy. In order to achieve the government’s goal in the international political situation of the time, it was not enough to impose punishment on those who were guilty of illegal conduct as mere criminals in order to set an example to others. It was now

56 G Magno, ‘Le sanzioni penali per il contrabbando dell’oro e delle valute’ [1940] Rivista penale 137, 138. 57 M La Torre (ed), Collezione celerifera, Anno 1939 (Rome, Stamperia Reale di Roma, 1939). Art 9 provided that the offender could be arrested and referred to the Commission for house arrest (confino), while Art 10 provided that in some circumstances breach of currency regulations could be punished by up to three years’ imprisonment; Lacchè, ‘Tra giustizia e repressione’ (n 2) XXVII. 58 Camera de Fasci e delle corporazioni, Atti delle Commissioni legislative riunite, I, Discussioni dal 22.5.1939 al 5.10.1940 (Rome, Tipografia della Camera 1940) 108–14.

156  Alessandra Bassani and Ambra Cantoni necessary for the investigation of these offences (which for all intents and purposes were political in nature) as well as the infliction of punishment to fall under the authority of a jurisdictional body that carried the right weight in Italian society. Based on this reasoning, it was logical to conclude that any violations of laws on foreign currencies and foreign trade could and had to be regarded as crimes against the personality of the state, and that the offenders deserved to face the same court and the same punishment as ‘traitors’.59 In that sense, the previously adopted measures were not effective enough and so, in order to solve the problem of the illegal trading of currencies once and for all, the Special Tribunal was the only body that could effectively deal with this kind of crime with the requisite appearance of severity. In fact, only the Special Tribunal had the authority and means to ‘intimidate’ and warn people through its rulings. Looking at these issues more closely, it is apparent that the Fascist government had to find new solutions to two kinds of problems: a legislative one, because it had to think of a new way to discipline violations of foreign currency law and foreign trade legislation; and a judicial one, because it had to enforce the law on currency violations if it was to attain its economic and political aims. This new law was the solution to both problems. It solved the legislative issue because this law represented the last phase in the evolution of the juridical nature of violations of foreign currency laws: they started out as administrative infractions and developed into violations against the personality of the state, that is, political crimes. It also solved the judicial problem by establishing that the Special Tribunal had jurisdiction over these new political crimes. Thus, the Parliament enacted Law no 1097 in July 1939, which established that anyone who fraudulently traded in, subtracted or concealed foreign moneys or means of payment from the state, or who endangered the Italian currency, was to be fined and imprisoned, for a minimum of 15 days or a maximum of 12 years. According to this law, the length of imprisonment increased to 24 years if there were aggravating circumstances. The law also called for the death penalty if these crimes were committed in association with the enemy in order to bring significant harm to the Italian economy.60 The decisions handed down by the Special Tribunal therefore taught Italians to behave themselves, as it was clear that anyone who was accused of illegally introducing, selling or concealing foreign currencies in Italy for an amount over 10,000 lire would be immediately arrested by the police. The arrest warrant would be issued by the investigating judge of the Special Tribunal, and the defendant would be imprisoned and could be sentenced according to the wartime military criminal code. In so doing, the Fascist government gave the Special Tribunal the perfect chance to fulfil its judicial, political and pedagogical nature: through its intimidating and cautionary decisions, the Special Tribunal could in fact enforce the law on currencies and support the political economy of the government, while at the same time teaching Italian citizens the rules of Fascist moral conduct. The guiding principles of Law no 1097/1939 had been made clear while it was under discussion in the Chamber of Deputies and Senate. An examination of the sentences handed down by the Special Tribunal for violations of that legislation reveals that the Tribunal took those very principles and made them its own. Indeed, these rulings clearly demonstrated 59 Senato del Regno, Resoconti delle discussioni, XXX Legislatura, anno 1939, Vol unico (Rome, Tipografia del Senato, 1949) 33–39. 60 L 1097/1939, Art 1.

Coercion and Consensus  157 how the judges resorted to questionable interpretations of the law so that this legislation could apply to even the most dubious of cases. Not only were the rulings meant to serve as a warning to Italian citizens, they were also meant to ‘intimidate’ them through the infliction of very severe punishments. This interpretation can be evidenced by reference to the case of Messrs Sala and ­Bonacina, who were arrested (with six others) by the Guardia di Finanza (the customs and excise police) in Milan in November 1939 while attempting to sell £853 and $103 (for the amount of 101,391 Italian lire).61 The Special Tribunal judges sentenced B ­ onacina to six  years’ ­imprisonment62 and Sala to four years for simply having attempted63 to participate – together and with others64 – in the fraudulent trade in foreign currencies and for having driven down the exchange rate of Italian currency such that it had brought harm upon the Italian economy. The Special Tribunal ruled that such conduct was to be punished with the utmost severity because it was the equivalent of committing ‘parricide’.65 The defence had argued that no actual fraud had been committed, as only the completion of the act could constitute fraud, and as such there was no actionable offence in this case. However, the Court ruled that ‘fraud’ was committed any time a conscious act of volition led to wrongful conduct in violation of the law. In other words, any time there was wrongful conduct, there was fraud. With the support of academic opinion,66 the Special Tribunal was able to take one of the constituent elements of this crime and empty it of all meaning, thereby enabling it to rule that there was always an element of fraud. Once again, the Special Tribunal had respected the letter of the law, though it had done so by interpreting it to its own advantage.67 Another example clearly demonstrated the Special Tribunal’s role as an instrument of repression combined with propagandistic and pedagogical aims: the case of Fiorentino Macajone. This Fascist Party official (gerarca) from Sicily was severely punished after being accused (along with many others) of trading in foreign currency in violation of the 1939 law. Though the value of the foreign currency in which he had traded was a paltry amount (just  over 50,000 lire), he was sentenced to eight years’ imprisonment, based on a calculation that the Special Tribunal did not specify in its ruling.68 Naturally, it did not go unnoticed that Macajone was a local Fascist Party secretary and that his section was ‘in charge of ensuring that the laws for the defence of the State are obeyed’.69 In this way, the judges of the Special Tribunal (who also had the task of teaching Fascist morals to Italians) performed their duties to the fullest, showing how the judicial system would pursue anyone who betrayed Italy: even someone like Macajone, who had not only betrayed the nation as a citizen, but above all as a Fascist Party official. 61 ACS, Fondo Tribunale Speciale per la Difesa dello Stato (TSDS), busta 654, imp Bonacina, Sala e altri, fasc I, ff 84–91. 62 Bonacina was also a recidivist, or a habitual repeat offender, a form of conduct punished more severely by the Penal Code. 63 Art 56 Penal Code. 64 Art 110 Penal Code. 65 ACS, Fondo TSDS, busta 654, imp Bonacina, Sala e altri, fasc I, f 89. 66 Magno (n 56) 154. 67 ACS, Fondo TSDS, busta 654, imp Bonacina, Sala ed altri, fasc I, f 89. 68 Ministero della Difesa, Il Tribunale Speciale per la Difesa dello Stato. Decisioni emesse nel 1940 (Rome, ­Ministero della Difesa, 1994) no 65/1940, 534–40, 538. 69 ibid 538.

158  Alessandra Bassani and Ambra Cantoni

Common Crimes With Law no 582 of 1940 (entitled ‘Rules for an increase in punishment for crimes committed by taking advantage of circumstances that depend on the state of war’), the government established that the most serious common crimes against the person – homicide, rape, robbery, extortion and false imprisonment – were to fall under the authority of the Special Tribunal for the Defence of the State if they had been committed by ‘taking advantage of circumstances related to the state of war’. The state of war connected with the aggravating circumstance of time, place or person which were such as to impede public or private defence (Article 61(5) Penal Code) was shrewdly used by the Court in order to pick and choose which cases to handle and to issue long prison sentences.70 This law also introduced harsh increases in punishment and increased the use of the death penalty. Though this decree was certainly the product of an exceptional moment in Italy’s history,71 it also carried through a plan that had clearly been in place since 1926: inflict swift and exemplary punishment on anyone who could be defined as an ‘enemy’ of or ‘traitor’ to Fascism.72 The same function could have been performed by the ordinary assize courts, which up to that point had had jurisdiction over common crimes. The choice to grant the Special Tribunal this authority was therefore all the more revealing. Indeed, it was the culmination of a deliberate strategy that aimed to combine repression with propaganda so as to disseminate specific messages. Far from being afraid of defeat, in 1940 the regime was convinced that it would emerge victorious in the war; by expanding the Special Tribunal’s powers in a moment of emergency, it made it clear who and what constituted a Fascist man or woman. This pedagogical and propagandistic function had to be carried out by a tribunal that was created by the regime itself; it could not be left to the ordinary courts, which were part of the constitutional system that Fascism had inherited from the Italian Liberal state. The Special Tribunal’s activity was perfectly in line with the ‘aspiration to regenerate the habits and character of the Italians’.73 As demonstrated above, because of this pedagogical function, the target of repression was not the anti-Fascist political crime itself, but rather the individual who committed it.74 This meant that the range of punishable acts that could fall under the Special Tribunal’s authority – in other words, political crimes – was expanded to include all types of conduct. The Special Tribunal’s very nature allowed it to target any kind of conduct: not only the most obvious, such as the disclosure of political secrets, which would result in repressive measures being implemented against traitors and 70 Art 1, Law no 582 of 1940. Lex – Legislazione italiana (Turin, Utet, anno XXVI-1940 January–June) 904. 71 M Meccarelli, ‘Paradigmi dell’eccezione nella parabola della modernità penale. Una prospettiva storico-­ giuridica’ (2009) 2 Quaderni storici 493. 72 D’Alessandro (n 7) 157: ‘From the moment of its [the Special Tribunal’s] creation, the defence of Fascism and state security became practically the same thing’. 73 L Benadusi, Il nemico dell’uomo nuovo. L’omosessualità nell’esperimento totalitario fascista (Milan, Feltrinelli, 2005) 15–16: ‘The aspiration of regenerating Italians, in their habits and their character, combined with the ­totalitarian intention of forming a “type of man, the new man, the whole man: this was to be the same for the family, society and State”’. 74 F Colao, ‘I processi ai “maggiori esponenti di idee contrarie al governo nazionale” prima dell’istituzione del Tribunale Speciale per la difesa dello Stato’ in L Lacchè (ed), Il diritto del Duce Giustizia e repressione nell’Italia fascista (Rome, Donzelli, 2015) 48–49; Musumeci (n 3) 56; Musumeci (n 3) 41: ‘according to Ferri criminal law would have to be reformed on the basis of the following guidelines [including] recognising the importance of the criminal instead of the abstract crime’.

Coercion and Consensus  159 spies, but also any conduct deemed ‘non-Fascist’ which, even when it was not a ‘political crime’ in the technical sense, could become one through an ‘unofficial practice of outright illegality, which aimed to empty the laws written in codes of any real substance’.75 As we shall see, the skilful use of legal fiction and strict compliance with procedures would cause ‘legality to go from being a guarantor of freedom to an instrument of reactionary authority’.76 In practical terms, this change meant that the Special Tribunal could extend its reach beyond the political crimes that would have logically fallen under its authority to include those men and women who did not conduct themselves in a way befitting of a Fascist. Furthermore, it had the freedom to choose cases which would make particularly effective propaganda. Thus, the existence of this court alongside the ordinary court system made perfect sense: both court systems would implement repressive measures, but as it was the only court of its kind in all of Italy, the Special Tribunal would have the key role77 of choosing which ‘non-Fascists’ to bring to trial and which to leave to the ordinary courts, basing its decision on specific pedagogical and propagandistic needs. Once again, there were ‘two faces’ of justice. The regime never shied away from falsifying legality78 – indeed this was one of its defining characteristics. In this way, the Special Tribunal was able to impose its authority over these cases by resorting to the wording of the law, which spoke of a ‘crime committed by taking advantage of the state of war’. To cite but one example, this meant that any crimes committed in places that had outdoor lighting until 1940, but which were then subject to compulsory blackout once Italy entered the war, would come before the Special Tribunal.79 In this regard the police were diligent: whenever a crime was committed in the evening in an area with no lighting, they would report it to the Special Tribunal in Rome. The Special Tribunal’s public prosecutor would then request confirmation that a blackout was in place: in some cases, this was provided by the podestà (mayor’s office) while in others the same police force that had reported the crime would carry out an inspection to verify the blackout. Only if the answer was affirmative would the prosecutor then proceed to bring charges: this was a fiction through and through.80 The Special Tribunal even ruled on the murder of some officials who had been watching over wheat stockpiles in order to prevent grain from being stolen, because the victims were in the open countryside at night in order to ‘fulfill a duty made necessary by wartime needs’,81 and under such circumstances their ability to defend themselves had been impeded.

75 Calamandrei, ‘Costruire la democrazia’ (n 20) 131. 76 ibid 129. 77 Lacchè uses the expression ‘strategic hub’, see ‘Tra giustizia e repressione’ (n 2) XXV. 78 Musumeci (n 3) 52. 79 About the ‘night’ see M Sbriccoli, ‘Nox quia nocet. I giuristi, l’ordine e la normalizzazione dell’immaginario’ in M Sbriccoli (ed), La notte. Ordine, sicurezza e disciplinamento in età moderna (Florence, Ponte alle Grazie, 1991) 11–15; and L Lacchè, ‘Loca occulta. Dimensione notturna e legittima difesa: per un paradigma del diritto di punire’ in M Sbriccoli (ed), La notte. Ordine, sicurezza e disciplinamento in età moderna (Florence, Ponte alle Grazie, 1991) 136–37. 80 See below in the cases of Angela Laurenzi and the Andreani brothers: the public prosecutor requested confirmation that there were no sources of light at the scene of the crime, where there had been lights before war broke out: ACS, Fondo TSDS, busta 816, imp Laurenzi Angela, fasc I, f 40; ACS, Fondo TSDS, busta 776, imp Andreani Andrea e Carlo, fasc II, ff 11 and 13. 81 ACS, Fondo TSDS, busta 851, imp Miduri Carmelo, Filippo e Salvatore, fasc I, f 122.

160  Alessandra Bassani and Ambra Cantoni Another circumstance that led to a case coming before the Special Tribunal was when the head of a family was absent because he was fighting on the front lines. If the lone wife was raped and the children terrorised, it was considered worthy of the Special Tribunal’s attention and punished with 28 years’ imprisonment.82 Such cases were particularly indicative of Fascist ideological views on women. A Fascist woman was a wife first and foremost in order to be a mother: procreation within the legitimate family unit was one of the central tenets of Fascism.83 As a result, Fascist legislation privileged married men and prolific families, repressed prostitution (which was strictly regulated), and provided assistance to mothers and children.84 Any men who violated the sanctity of ‘chaste wedlock’ were not Fascists: they were to face severe punishment, and if the case was such that there was a way to make an example of the transgressors, then the punishment was to be handed down by the Special Tribunal. Similarly, any woman who violated the Fascist image of motherhood would also face punishment from the Special Tribunal. For instance, there was the case of a mother who killed her own illegitimate daughter by drowning her in a bucket: she was sentenced to death (which was then commuted into life imprisonment), not only because she had committed an unimaginable crime, but also because that crime was the consequence of her immoral conduct as an unmarried mother.85 The Special Tribunal did not unleash its repressive violence based on the gravity of the crime: the principle of proportionality in sentencing was avoided thanks to the provisions of the Rocco Code and the law of 1940. Two particularly relevant cases had to do with a succession of robberies committed during blackout hours in Catania and Genoa.86 In both cases, the Special Tribunal handed down a sentence of death by firing squad, which was carried out immediately after sentencing. News of the execution was to be posted in all the town halls throughout the kingdom. In both cases, due to the combination of a continuing offence87 and the aggravating circumstances set forth in the law of 1940,88 some of the accused were sentenced to death. In the first example, in Catania, three friends pretended to be police officers in order to rob passersby of their groceries and the contents of their wallets, which they then used to buy food and carouse at a tavern. On at least one occasion they drew a gun, but they never fired any shots. In the other example, in Genoa, six accomplices committed robberies, burglaries and caused harm by taking advantage of the evening and night-time hours; they too had drawn a gun, without ever firing a shot. 82 ACS, Fondo TSDS, busta 701, imp Piucci Arcangelo, fasc I, ff 31–34. 83 V de Grazia, Le donne nel regime fascista. Il fascismo ha emancipato le donne? (Venice, Marsilio, 1993) 11: ‘The Fascist regime drew on the support of the family’s and the Catholic Church’s authority in order to force women to play the traditional roles of mother and housewife’. 84 On the importance of family politics for the regime see: M Minesso, Stato e infanzia nell’Italia contempornea. Origini, sviluppo e fine dell’Onmi 1925–1975 (Bologna, il Mulino, 2007) 49–125; de Grazia (n 83) 74–88. 85 de Grazia (n 83) 191–93: ‘The Lateran Pact, which tied the Catholic Church and the Italian State in a nuptial rite, together with Pio XI’s “Casti Connubi”, set the institution of marriage in a prominent role’. 86 ACS, Fondo TSDS, busta 799, imp Orestano Carlo, Caruso Antonio, Stancarelli Angelo, fasc I, f 85. ACS, Fondo TSDS, busta 676, imp Pavese Alberto, Grisanti Clemente, Celle Gerolamo, Casazza Vittorio, Vercese Mario e Forlani Silvio, fasc I, f 19. 87 Covered by Arts 61, 81 and 628 Penal Code. 88 ACS, Fondo TSDS, busta 799, imp Orestano Carlo, Caruso Antonio, Stancanelli Angelo, fasc I, f 108; Ministero della Difesa, Il Tribunale Speciale per la Difesa dello Stato. Decisioni emesse nel 1940 (Rome, Ministero della Difesa, 1994) sent no 177/1940, 624–31, 631. The report about Carmelo Miduri’s execution was ordered to be posted in every city hall of the kingdom: see ACS, Fondo TSDS, busta 851, imp Miduri Carmelo, Filippo e Salvatore, fasc I, f 120.

Coercion and Consensus  161 The clearly disproportionate punishment on the one hand and the spectacular nature of the criminal procedure on the other both served to achieve the repressive and propagandistic goals of the Special Tribunal. In the above-mentioned cases, the criminal proceedings were transferred to the places where the crimes had been committed: a measure that was justified by stating that ‘these crimes had caused exceptional alarm in the places where they were committed’.89 However, in the words of Shakespeare, it was ‘much ado about nothing’. A characteristic that was frequently shared by these offenders was that they typically led a life of excess on the margins of society. That life was reconstructed in minute detail by the Special Tribunal, either by requesting records from an offender’s place of origin or through testimony. When it came to passing sentence, the judgment not only contained a reconstruction of the events that had led to the crime, but also told the life story of the offender – indeed, it amounted to a public condemnation of the life they had lived up to that moment.90 In almost all cases the offenders had already confessed to the crime, but that did not stop the Special Tribunal from reconstructing – in what was merely a show of objectivity – all the steps that had led up to that moment: their family origins, the environment in which they had lived, the experiences that had shaped them. Thus, it came out that the man who had raped the wife of a soldier deployed to the front lines was already known to the police for his vagrant ways, his drunkenness and for disturbing the peace.91 And the woman guilty of killing her child had been an unmarried mother who had hidden the existence of her illegitimate daughter from her recently wedded husband.92 The robbers from Catania had met while serving time in a military prison, became friends,93 and used the loot from their robberies to ‘carouse’ in taverns and to buy ‘two chickens’. In reading the records, the Special Tribunal’s pedagogical function is evident: it was not just a court that inflicted punishment, but also a pulpit from which the regime could explain to the Italian people who was Fascist and who was not.94 Indeed, there was still hope for absolution for those who ran into legal problems if they could prove they were faithful Fascists who led a regular life – the Special Tribunal might choose to use the ‘flexibility’ at its disposal in order to administer punishment as it saw fit, or forego punishment altogether if the accused was not ‘on the margins’ but rather someone who was integrated in Fascist society. In that case, the regime would make a show of its fairness and of the fact that it abided by the rules.

89 ACS, Fondo TSDS, busta 799, imp Orestano Carlo, Caruso Antonio, Stancanelli Angelo, fasc I, f 93. ACS, Fondo TSDS, busta 676, imp Pavese Alberto, Grisanti Clemente, Celle Gerolamo, Casazza Vittorio, Vercese Mario e Forlani Silvio, fasc I, ff 39–40. 90 Musumeci (n 3) 39. 91 ACS, Fondo TSDS, busta 701, imp Piucci Arcangelo, fasc I, f 7: ‘Piucci is depraved and lazy, addicted to wine and to vagabondage, and of violent character, and he has been cautioned several times and put under special police surveillance’. 92 ACS, Fondo TSDS, busta 816, imp Laurenzi Angela, fasc I, ff 56–58 (sent no 37/1943): ‘It appears that Laurenzi, after an adventurous life, had found a husband and was lawfully wedded to Salvatori Pietro, who after the marriage became aware of the existence of the little girl and on learning that the woman who looked after her no longer wanted to do so, he told Laurenzi to admit the child to some sort of institution or even give her to strangers: and until she did so she was not to return to the village with the girl’. 93 ACS, Fondo TSDS, busta 799, imp Orestano Carlo, Caruso Antonio, Stancarelli Angelo, fasc I, f 89. 94 See E Gentile, ‘Partito, Stato e “Duce” nella mitologia e nell’organizzazione del fascismo’ in E Gentile (ed), Fascismo. Storia e interpretazione (Rome–Bari, Laterza, 2002).

162  Alessandra Bassani and Ambra Cantoni An example of this can be seen in the case of two brothers acquitted of a murder which had (of course) taken place during blackout hours.95 A reading of the judgment suffices to show how the Special Tribunal exhibited laudable restraint, ruling that there was insufficient evidence to convict them of the crime.96 In examining the court records, it emerges that the key witness was a young waitress who was just 15 years old, and who had seen one of the defendants with the victim shortly before the murder. During the investigation, she provided a detailed reconstruction of what she had seen and recognised the defendant beyond any doubt.97 Nonetheless, during the hearing she appeared so confused and scared that the judge – who described her as ‘a local maidservant’ – was led to believe that she was of unsound mind.98 Above all, we learn from the records that the two brothers were first-wave squadristi (members of a Fascist squad): their father had served as vice-podestà (deputy mayor) in the city where the crime had been committed, and he had written a letter to the President of the Special Tribunal.99 The records also show that the girl was then charged with perjury due to what she had stated during the investigation.100

Conclusion Historiographers have shown how both totalitarian and democratic regimes in the 1930s relied on economic intervention and mass communication strategies to respond to the crisis that was facing the Liberal state. The strategies they implemented were aimed at maintaining their hold on power101 through a combination of repression and the formation of popular opinion. Such strategies manifested themselves perfectly in the Special Tribunal’s rulings if we consider some of the key concepts that were essential to its operation. First, there was the dual nature of the regime, which had hollowed out monarchical and liberal institutions, reducing them to mere shells of what they once were, and then allowed them to operate in parallel with Fascist Party institutions. While it was true that the Fascist institutions became more stable over time, it was also true that they never lost their menacing and violent revolutionary image. These two ‘souls’ could only converge in the person of the Duce, and in 1931 the Special Tribunal fell under his control.102 Secondly, this institutional duality was closely connected to the regime’s constant desire to falsify legality 95 ACS, Fondo TSDS, busta 776, imp Andreani Andrea e Carlo, fasc I, f 121: ‘the murder was committed when the murderess took advantage of the special conditions of darkness due to the war and because the victim, due to those conditions, was especially vulnerable. These factors give rise to the competence of this special organ of justice’. 96 ACS, Fondo TSDS, busta 776, imp Andreani Andrea e Carlo, fasc I, f 133: ‘the evidence is so defective and weak as not to appear to the [Tribunal] to support a conscientious affirmation of responsibility’. 97 ACS, Fondo TSDS, busta 776, imp Andreani Andrea e Carlo, fasc I, ff 119–20. 98 ACS, Fondo TSDS, busta 776, imp Andreani Andrea e Carlo, fasc. I, f. 132: ‘the testimonies appeared to be unconvincing due both to the psychological state of the girls themselves, little village servants, who made the panel doubt their mental capacity, and to the uncertainties in what they said’. 99 ACS, Fondo TSDS, busta 776, imp Andreani Andrea e Carlo, fasc II, ff 60–61: letter from Marcello, the father of the accused, to the President of the Special Tribunal. 100 ACS, Fondo TSDS, busta 776, imp Andreani Andrea e Carlo, fasc I, ff 137–38. 101 See Melis (n 1); and Skinner, ‘I reati contro lo Stato e l’intreccio tra fascismo e democrazia’ (n 8). 102 Statute no 674/1931: see Gallo (n 11) 11; G Neppi Modona and M Pellissero, ‘La politica criminale durante il Fascismo’ in L Violante (ed), Storia d’Italia. Annali 12: La criminalità (Turin, Einaudi 1997) 772; Lacchè, ‘Tra giustizia e repressione’ (n 2) XXIII.

Coercion and Consensus  163 by enacting ‘false-bottom’ laws, the aim of which was to convey reassuring messages both within and beyond Italy’s borders. Thirdly, it is important to remember that the regime’s decisions were driven by a desire to create an image – a need to portray itself in a way that could earn the public’s consensus and shape society through ethical paradigms.103 As Emilio Gentile pointed out in his insightful commentary, the education of the masses was an absolutely central issue to the regime’s policy: [W]e believe in a fascism … that does not leave out any good Italian [emphasis added] from the purview of politics … there is this totalitarian need that is born of Fascism’s very desire to reformulate a new morality, a new way of life for all Italians.104

These three perspectives thus provide a ‘critical’ interpretation of the Special Tribunal’s rulings. The second half of the 1930s witnessed the regime exert progressively more control over the economy as a key part of its politics. This led to the classification of a new type of misconduct, namely violations of the regime’s economic and currency policy, which were initially considered administrative infractions and then became outright crimes against currency legislation. In 1939, they were officially classified as political crimes, and naturally this meant that they would fall under the repressive authority of the Special Tribunal. Once the war broke out, the most serious common crimes were placed under the Special Tribunal’s authority, giving this court control over practically all spheres of human conduct. This was accomplished through a legal fiction which, just as in 1926, took advantage of an emergency: in this case, the state of war. The Special Tribunal abided by the fiction – the ‘vulgar presumption of Machiavellianism’ – by insisting on formalities. Such was evident by the exchange of documents between local authorities and the public prosecutor’s office, which was designed to cover up the real reason behind choosing cases to bring to the regime’s highest court, where a show could be put on for all to see. The regime even went so far as to guarantee defendants the right to defence counsel;105 it also defined the type of conduct that could be punished and meted out punishment within the limits of the ‘law’ (nullum crimen, nulla poena sine lege). However, all these aspects – the right to defence counsel, the definition of the crime, the meting out of punishment – had been emptied of any real meaning. They acted merely as a ‘false bottom’ under which the Court could operate essentially as it wished.106 The accused were to face exemplary punishments, and the sentences were to be handed down after building up a case of facts and circumstances that, technically speaking, were fully within the limits of the law; alternatively, they were to be absolved based on legally incontrovertible evidence. In reality, these methods simply covered up politically motivated decisions: the rulings were meant to punish those who failed to conduct themselves  – or had never conducted themselves – in a way befitting of Fascists, just as they aimed to 103 Gentile, ‘Partito, Stato e “Duce”’ (n 94). 104 N D’Aroma ‘Il popolo nel fascismo’ (Rome, 1932) 88 quoted in E Gentile, ‘Partito, Stato e “Duce” nella mitologia e nell’organizzazione del fascismo’ in E Gentile (ed), Fascismo. Storia e interpretazione (Rome–Bari, Laterza, 2002), 161. 105 ACS, Fondo TSDS, busta 851, imp Miduri Carmelo, Filippo e Salvatore, fasc I, ff 133–36 for the lawyer’s allegations. 106 D’Alessandro (n 7) 173: ‘a kind of amphibian-institute equipped to adapt itself to the progressive requirements of a regime under construction’.

164  Alessandra Bassani and Ambra Cantoni absolve those who in the past had served the regime. In such an approach, there was no difference among those who made an attempt on the life of the King or the Duce; those who disclosed military or political secrets; those who were accused of defeatism; those who, out of greed, refused to fulfil their duty of helping the national economy; those who raped the wife of a soldier; those who killed their own children or a regime official; or those who committed robberies by pretending to be police officers. Those guilty of such conduct were not Fascists – they were traitors to the nation, and for this reason they were to be severely punished as an example. The history of the laws studied in this chapter and the way they were applied thus show how the regime used the criminal law in order to try and create the perfect ‘Fascist Man’ and ‘Fascist Woman’. In 1936 the Fascist Party exerted its political influence to transform contempt for the national economic interest into a political crime. As a natural consequence, in 1939 this crime fell into the jurisdiction of the Special Tribunal, which considered it to be as serious as parricide. Moreover, the most serious common offences became political crimes because jurisdiction over these cases was attributed to the Special Tribunal and not because a law was passed establishing a change in their nature. In this way, the rule of law was not touched directly, but it was still overturned because it was the jurisdiction that defined the nature of a crime and not vice versa. Mussolini stated that Fascism was ‘action and thought’. The Special Tribunal was one of the instruments through which the regime transformed its ideology into action.

8 The Judiciary and Political Power Under the Fascist Regime in Italy RICCARDO CAVALLO

Judges and Fascism: An Open Question Since the 1960s, Italy has experienced a long and heated debate on the relationship between politics and judges under the Fascist regime. Among the many scholars who have analysed this issue, two Italian historians stand out: Renzo De Felice and Alberto ­Aquarone. De Felice’s viewpoint was moderately optimistic, arguing that judges had merely been superficially influenced by Fascism and had not undergone a real ‘­fascistisation’.1 On the contrary, Aquarone’s approach was more problematic. He claimed that the judiciary, regardless of its complicity with the Fascist regime, did not have power to oppose or resist it.2 Despite the difference in opinions, both scholars seemed fascinated by the memoirs and biographical books published in the 1950s.3 Under the topic of Fascism, these books claimed that the vast majority of judges were indomitable or in any case ‘intimately antifascist’. This view may have underestimated the problem of ‘fascistisation’ of the judiciary by assuming that although judges were directly or indirectly put under pressure (as evidenced by circulars from the Minister of Justice), they were capable of respecting the sense of justice and legality. As a result, these scholars stressed a low level of fascistisation and essentially ignored the fundamental role of judges during the dictatorship. They had framed the discussion of the problem in lenient terms that effectively justified the ­judiciary’s conduct. Even though some scholars have underlined the compliance4 between judges and Fascism, the above approach has mainly generated some myths that are still embedded in 1 R De Felice, Mussolini il fascista. II. L’organizzazione dello Stato fascista (Turin, Einaudi, 1968) 344–45. 2 A Aquarone, L’organizzazione dello Stato totalitario (Turin, Einaudi, 1965) 240–42. 3 AC Jemolo, ‘La magistratura: constatazioni e proposte’ in Per l’ordine giudiziario (Milan, Giuffrè, 1946) 29–36; S Jacini, Il regime fascista (Milan, Garzanti, 1947); M Berutti, Un magistrato indipendente e altri racconti di vita e costumi giudiziari contemporanei (Milan–Rome, Gastaldi, 1950); DR Peretti Griva, Esperienze di un giudice (Turin, Einaudi, 1956). 4 G Neppi Modona, ‘Diritto e giustizia penale nel periodo fascista’ in L Lacchè, C Latini, P Marchetti and M Meccarelli (eds), Penale, Giustizia, Potere. Metodi, Ricerche, Storiografie. Per ricordare Mario Sbriccoli (Macerata, EUM, 2007) 341, 376; and G Focardi, Magistratura e fascismo. L’amministrazione della giustizia in Veneto 1920–1945 (Venice, Marsilio, 2012).

166  Riccardo Cavallo the ongoing historical debate about the judiciary under Fascism, as well as in legal culture generally. Allegedly, the judges used their autonomy and independence to put a stop to the degeneration of the legal system under the regime. This view has been supported by reference to the establishment in 1926 of the Special Tribunal for the Defence of the State, which has traditionally been considered as the only institution specifically responsible for the suppression of political opponents (‘inner enemies’). The Tribunal had the ability to prevent the ordinary courts5 from competing with it in its role as the ‘test-bed’ of Fascism.6 Another topic used as evidence of judicial ‘innocence’ is the matter of the purges carried out in the early years of the regime, leading to the removal of some judges. Due to this process, for fear of retaliation or threats, the judges were almost totally aligned with the regime’s dictates because they had no alternative. Subsequently, for a period of 30 years, two additional legal scholars have studied this issue. The late legal historian, Mario Sbriccoli, focused his analysis on the role of legal doctrine and its theoretical application.7 Simultaneously, Guido Neppi Modona analysed the judicial policy adopted by the regime and the approach of judges towards it.8 The essays of these two distinguished scholars represent a significant step in analysing the effects of Fascism on the judiciary. For example, Sbriccoli’s work studied the responsibility of legal scholars, while Neppi Modona’s work reviewed the interpretation and application of criminal law as the judiciary submitted to political forces. This area of research has inspired many other scholars who have since tried to investigate the real nature of judicial power during Fascism. As a result, scholars have analysed every legal and institutional aspect of the Fascist regime (including legislation, academic commentary and judgments). In particular, studies have reviewed the role played by the Supreme Court judges both before and during Fascism9 as well as the judicial development of labour law under the regime.10 Further research has addressed the workings of the judiciary from the Liberal era to the Second World War.11 Lastly, examination of ‘Fascist Justice’12 within the ‘Fascist State’13 has also been investigated. This research has thus bolstered the extensive debate on the role of judges during Fascism and yet, despite these various studies, this could still be considered an open-ended question.14 5 In Italy, the ordinary courts (giustizia ordinaria) deal with civil and criminal matters at first instance (Tribunal) and second (Court of Appeal). On the contrary, the Italian Supreme Court (Corte di Cassazione) is the court of last instance. 6 Jemolo (n 3) 29. 7 See M Sbriccoli, ‘Le mani nella pasta e gli occhi al cielo: La penalistica italiana negli anni di fascismo’ (1999) 28 Quaderni fiorentini per la storia del pensiero giuridico moderno 817. 8 G Neppi Modona, ‘La magistratura e il fascismo’ (1972) 3 Politica del diritto 563; Neppi Modona, ‘Diritto e giustizia penale nel periodo fascista’ (n 4) 341–78; G Neppi Modona, ‘Principio di legalità e giustizia penale durante il fascismo’ (2007) 36 Quaderni fiorentini per la storia del pensiero giuridico moderno 983; G Neppi Modona, ‘­Quali giudici per quale giustizia nel ventennio fascista’ in L Garlati (ed), L’inconscio inquisitorio. L’eredità del codice Rocco nella cultura processualpenalistica italiana (Milan, Giuffrè, 2010). 9 M Meccarelli, Le Corti di cassazione nell’Italia unita. Profili sistematici e costituzionali della giuridisdizione in una prospettiva comparata, 1865–1923 (Milan, Giuffrè, 2005); O Abbamonte, La politica invisibile. Corte di ­Cassazione e magistratura durante il fascismo (Turin, Giappichelli, 2003). 10 GC Cocteau, La magistratura e i conflitti di lavoro durante il fascismo (Milan, Feltrinelli, 1978). 11 A Meniconi, Storia della magistratura italiana (Bologna, il Mulino, 2012). 12 L Lacchè, ‘Tra giustizia e repressione: i volti del regime fascista’ in L Lacchè (ed), Il diritto del Duce. Giustizia e repressione nell’Italia fascista (Rome, Donzelli, 2015) IX–XXXVIII. 13 G Melis, La macchina imperfetta. Immagine e realtà dello Stato fascista (Bologna, il Mulino, 2018). 14 ibid 342–70; and Focardi (n 4).

The Judiciary and Political Power  167 In order to inquire beyond existing commentary on this topic, it is important to examine whether the judiciary was a restraining factor in the anti-democratic drift under Fascism. Also, and to the contrary, if the judiciary operated in favour of the regime, it is necessary to consider the problematic relations between the judiciary and political power within the framework of Fascist legislation. As part of this analysis, the judiciary is assumed to act as the public body responsible for the protection of the rights of citizens according to the rule of law. This study will thus examine the actual role of the judiciary under Fascism and how it functioned under the traditional principle of the separation of powers. In particular, considering that background, this chapter aims to shed new light on an ‘old’ question: were judges independent and guided by the democratic principles of the previous Liberal regime or was their role functional to the Fascist regime? To find an answer to this question, one must examine the extent of the Fascist regime’s anti-democratic ideology. In addition, one must consider the ideology that actively connected the judges and the whole ‘judicial machine’, such as the Minister of Justice, the Supreme Court and other institutions. The enquiry thus becomes twofold: (1) whether the judges under the Fascist regime were ideologically independent from political power; and (2) how they could have been ideologically independent from political power. Several factors will be examined in this study. First, in order to understand both the continuities and ruptures within the Liberal system as well as the subsequent authoritarian regime, the relationship between politics and judges before and after the ‘Fascist revolution’ must be reviewed. Second, this study will analyse all legislative reforms of the judicial system enacted by the Fascist regime, particularly innovations related to the courts’ function and the judges’ careers. Thus, this analysis will attempt to assemble the various tiles of the Fascist judicial mosaic: the laws adopted by the ‘moderate’ Minister of Justice Aldo Oviglio, the organic, judicial reforms of the more radical minister Dino Grandi, and the role of Alfredo Rocco, the true architect of Fascist justice. Third, this chapter will review how the ‘judicial machine’ functioned, as evidenced by the speeches and work of its most important actors, namely the ministers of justice Aldo Oviglio, Alfredo Rocco, Dino Grandi, and the President of the Supreme Court, ­Mariano d’Amelio. Finally, the chapter will analyse what happened in the ‘Fascist courtrooms’, including some of the most significant criminal judgments. This part of the chapter shows how judges followed the directives imposed by the Minister of Justice, especially in the application of law in individual cases. This demonstrates how criminal law facilitated the construction of ‘Fascist justice’. Inevitably, legal history inextricably mingles with political history and, as this historical study shows, criminal law has more political influence than any other area of law.15 15 On the peculiarities of ‘Fascist’ criminal law as well as the relationship between legal science and Fascism see  A Mazzacane, ‘La cultura giuridica del fascismo: una questione aperta’ in A Mazzacane (ed), Diritto, economia e istituzioni nell’Italia fascista (Baden-Baden, Nomos, 2002); Lacchè (ed), Il diritto del Duce (n 12); I ­Birocchi and L Loschiavo (eds), I giuristi e il fascino del regime (1918–1925) (Rome, Roma TrE-Press, 2015); MN Miletti, ‘Giustizia penale e identità nazionale (A proposito di Il diritto del Duce. Giustizia e repressione nell’Italia fascista, a cura di Luigi Lacchè, Roma, Donzelli, 2015’ (2016) 45 Quaderni fiorentini per la storia del pensiero giuridico modern 683, 683–84; S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015); P Garfinkel, Criminal Law in Liberal and Fascist Italy (Cambridge, Cambridge University Press, 2016).

168  Riccardo Cavallo

The Judiciary and Political Power in Liberal Italy: An Outline The history of the judiciary in Italy16 is inevitably intertwined with its political and social history.17 In particular, after the unification of Italy and the birth of the Liberal state, the ­liaison dangereuse between judges and politics was proved by their direct appointment by the government. Before examining the main legislative measures (laws, regulations, circulars, etc) approved during the Fascist regime, it is necessary to consider the lengthy and troubled history of relations between the judicial and political powers.18 The question of the legal position of the judiciary seemed to be one of the main knots to  be untied after Italian Unification,19 as evidenced by the actions of legislators who found  it necessary to intervene.20 Among the various Articles of the Albertine Statute (1848)21 – the constitution of the Kingdom of Sardinia promulgated on 4 March 1848 by King Charles Albert and subsequently enforced in the Kingdom of Italy until the end of the Fascist regime – devoted to the judiciary, perhaps the most important for present purposes is Article 69, which focused on the guarantee of immovability.22 The Article stated: ‘Judges appointed by the King, with the exception of judges of municipal districts (mandamenti), are immovable after three years of service’. According to the Statute the ratio legis was to find a solution to the problem of judicial independence by guaranteeing that judges could not be transferred to another rank or office without a legitimate reason.23 This Article did not specify whether the guarantee was limited by rank (ie, first instance, Court of Appeal, and so on) or merely the office of the judge, and permitted a transfer only with a judge’s consent. In other words, the judge enjoyed legal protection against removal from office and against the transfer of cases. The issue of the judiciary had given rise to a heated debate between those on the ­political right and left. This included concerns about the election of judges, which falls beyond the scope of this study. However, beyond these differences of detail, the political power embodied by the government demonstrated a common aim of seeking to control the judiciary, which was a feature of both the right and left wings of government. The Prime ­Minister, Agostino Depretis, leader of the ‘Historical Left’ (Sinistra Storica) had included 16 C Guarnieri, ‘Magistratura e sistema politico nella storia d’Italia’ in R Romanelli, Magistrati e potere nella storia europea (Bologna, il Mulino, 1997) 242; and O Abbamonte, Il potere dei conflitti. Testimonianze sulla storia della magistratura italiana (Turin, Giappichelli, 2017). 17 A Meniconi, Storia della magistratura (n 11). 18 On this issue in the period before Italian unification see P Piasenza, ‘L’irresponsabilità politica della ­magistratura nello Stato liberale. Il Piemonte e lo Statuto (1848–1851)’ (1975) 5 Materiali per una storia della cultura giuridica 533. 19 P Saraceno, Storia della magistratura italiana. Le origini: la magistratura del Regno di Sardegna (Rome, Università di Roma ‘La Sapienza’, 1992–93) 3. 20 M D’Addio, Politica e magistratura 1848–1876 (Milan, Giuffrè, 1966) 8. 21 On the background to the Albertine Statute note G Maranini, Le origini dello Statuto albertino (Florence, Vallecchi, 1926). 22 See generally C Danusso, ‘Decreti e circolari come strumenti di controllo dell’esecutivo sui magistrati’ in F Colao, L Lacchè, C Storti and C Valsecchi (eds), Perpetue appendici e codicilli alle leggi italiane. Le circolari ­ministeriali, il potere regolamentare e la politica del diritto in Italia tra Otto e Novecento (Macerata, EUM, 2011). 23 Immovability could be an illusory guarantee, in that transfers can be punishments or rewards, as troublesome judges could be alternately promoveatur ut amoveatur, that is, promoted so as to be removed. Note L Mortara, Istituzioni di ordinamento giudiziario (Florence, Barbera, 1906) 64.

The Judiciary and Political Power  169 the ­independence of the judiciary in his programme but did not really do anything of significance in this sense. His programme was developed during a period characterised by an emerging and developing movement of working-class associations, pre-cursors of unions. This was considered a social danger by the government that wanted (and succeeded in achieving) judges to consider the members of these associations (internationalists) as affiliates of criminal associations, who should be rigorously punished as a result.24 Similarly, after the unification of Italy, the judiciary also began to request more guarantees of autonomy and independence, which was attributable as well to the most liberal ministers, Giuseppe Zanardelli, Vittorio Emanuele Orlando and Giulio Rodinò. Over time, the strong pressures of the first organised associations of judges led to the creation of the Superior Council of the Magistrature (CSM, founded in 1907),25 the governing body of the judiciary, and the subsequent birth of the General Association of Italian Magistrates (AGMI, founded in 1909).26 The judiciary began gradually to change. In order to ensure the individual independence of judges, a real autonomy was bestowed upon the entire judiciary, which deprived the executive of administrative power over it. This contributed to the gradual disappearance of judges belonging to the ‘Risorgimento generation’, who were originally recruited on the basis of mostly political criteria. The guarantees of autonomy and independence were increasingly strengthened, as demonstrated by a key reform of the Liberal state introduced by Minister Giulio Rodinò (Royal Decree no 1978 of 14 December 1921). The Minister had to accept many of the requests from the AGMI, including conceding the guarantee of immovability to the praetors (a low-ranking category of judges), granting other guarantees to the public prosecutors, accepting the Superior Council of the Magistrature’s electoral system (which was another guarantee of judicial independence), and introducing a different career progression system.27 Unfortunately, he did not approve all of these proposals due to the seizure of power by Fascism. Beyond the normative details of the judicial system, a mixture of conservatism and moralism had always characterised the role of judges. In some ways, a judge was seen as a sort of ‘priest’ who was invested with a high and difficult mission. Anthropologically, the judge has been viewed as ‘cold’ and ‘distant from human passions’,28 entrusted with reason and a supreme morality to protect the reassuring values of the past. However, behind this austerity and aura of sacredness, it is possible to see the lust for power. Moreover, there was often an interchange between judges and politicians. For example, most of the judges in Liberal Italy29 had already been part of the political class and vice versa. Additionally, many judges had become ministerial undersecretaries or Members of Parliament, which generated a dangerous commingling and exchange among positions of power. 24 P Marovelli, L’indipendenza e l’autonomia della magistratura italiana dal 1848 al 1923 (Milan, Giuffrè, 1967) 122, fn 3. 25 The Superior Council of the Magistrature is a constitutional organ acting as the autonomous government of the ordinary judiciary introduced by Vittorio Emanuele Orlando in 1907. It is an organ of self-government, with the aim of guaranteeing autonomy and independence of the judiciary from the other powers of the state, ­particularly from the executive, according to the principle of separation of powers. 26 The General Association of Italian Magistrates, established in Milan in 1909, is the representative body of the judges, without political purpose: note F Venturini, Un ‘sindacato’ di giudici da Giolitti a Mussolini. L’Associazione generale fra i magistrati italiani 1909–1926 (Bologna, il Mulino, 1987). 27 Marovelli (n 24) 276. 28 Abbamonte, La politica invisibile (n 9) 115. 29 C Guarnieri, Magistratura e politica in Italia. Pesi senza contrappesi (Bologna, il Mulino, 1992) 84–85.

170  Riccardo Cavallo In November 1921, the eminent jurist Piero Calamandrei30 gave an inaugural speech at the University of Siena. This speech was significantly symbolic. In the crucial period of transition from the Liberal era to Fascism, he dealt with the problematic relationship between political power and the judiciary. His speech outlined a lucid framework characterised by the reciprocal conditioning that had been ingrained in the judicial system. First, Calamandrei highlighted the various practices of direct and indirect interference with the judiciary by the executive power. According to the jurist, there were several tangible discrepancies between the constitutional principles of the Albertine Statute that recognised the independence of the judiciary. He also highlighted the grim reality that promulgated the dangerous relationship between judges and politics. In addition, Calamandrei emphasised that the behaviour of judges was not entirely immune from forms of connivance with political power. He noted that there was an excessive number of judges desperately looking for intercessions to guarantee their career progression. He described these behaviours as a despicable practice that had always plagued Italian political life. Finally, Calamandrei expressed his thoughts: ‘from the thousands of points in a judicial career that depend on the arbitrary power of government, the terrible weed of Italian political life has taken root, and even become established in the judicial world, namely the recommendation’.31

Aldo Oviglio’s Judicial Reform The first stone in the foundations of the Fascist judicial edifice was placed by Aldo Oviglio, the Italian Minister of Justice from 1923 to 1925, and a member of the moderate wing of the Fascist Party.32 It is possible to argue that the reforms that he introduced did not represent a real break with the judicial system of the Liberal era, based on the Minister’s intention: [M]ore than a radical transformation of the law in force, these are mere adjustments, which however concern the most vital points of the judicial system, including, in particular, the beginning of the career, the promotion system and the organization of the chain of command.33

In other words, despite the apparent desire not to overturn the legal system by force, a change in such crucial areas could only have a profound impact on the entire judicial system, as well as on the establishment of a new class of judges who would gradually replace the old ones ‘inherited’ from the previous system. Despite the declared intent, the measures introduced by Oviglio were, in fact, aiming to neutralise any form of independence, however ­minimal, acquired by the judges in the early-twentieth century under the Liberal legislation and specifically the system designed by Royal Decree no 2626 of 6 December 1865. This point is clear if we briefly retrace the primary measures taken in this matter by Oviglio, which ranged from the abolition of the elective power of the Superior Council of the Magistrature (which was replaced by a designation system exclusively controlled 30 P Calamandrei, ‘Governo e magistratura: discorso inaugurale letto il 13 novembre 1921’ (Siena, S Bernardino, 1922) now in P Calamandrei, Opere giuridiche (Naples, Morano, 1966). 31 Calamandrei, ‘Governo e magistratura’ (n 30) 210. 32 A Meniconi, La ‘maschia avvocatura’. Istituzioni e professione forense in epoca fascista (Bologna, il Mulino, 2006) 92–93. 33 Relazione del Ministro Oviglio al Re sul decreto n 1921 del 14 settembre 1923.

The Judiciary and Political Power  171 by the Minister), to the reduction of offices and judicial bodies (ie, amendment of the districts and suppression of the praetors). At the same time, the discretionary power of the Minister of Justice increased in the appointment and determination of periods of office of the superior judicial ranks (Court of Appeal and Supreme Court), through a redesign of the promotions system. Similarly, the guarantee of immovability after three years of service, which had already been extended to the praetors in 1921, was again reserved only for the ordinary judges. Without analysing the reform in detail, we can understand how in reality these changes contradicted the words of the Minister: not only was the new regime looking for ‘new’ judges, but also the whole apparatus of justice had to become increasingly hierarchical and less independent. To this end, the Fascist regime’s first legislative measure on Judicial Policy (Royal Decree no 1028 of 3 May 1923) was made regarding the dispensation from service of those judges who were ‘unable to serve or incapable or giving poor performance at work’. This dispensation, already in force with regard to other public employees, was extended by an ad hoc measure to all judges for ‘technical reasons’, namely the reorganisation of the judicial districts, which led to the abolition of four out of five Supreme Courts (leaving only one centralised Supreme Court) and six out of 22 Appeal Courts, while the number of first instance Tribunals decreased from 169 to 115. This was an openly malicious way of removing troublesome judges (as usually occurs at the beginning of a new regime and as had already happened during the transition from the pre-unitary states to the Kingdom of Italy), since dispensation from service was possible for generic reasons, such as ‘for redundancy’ or ‘unproductiveness’. Approximately 100 judges were expelled by a commission chaired by the Minister of Justice and organised by the President of the Superior Council of the Magistrature, along with three senior Appeal Court judges. Among the judges removed from office was Lodovico Mortara,34 at that time President of the newly singular Supreme Court and one of the main supporters of a potential liberal reform of the judicial system. The expulsion of such an eminent jurist of the Liberal era was significant: the goal of the regime was not to dismiss all judges from the judicial order, but to eliminate only a part of the judiciary, those clearly more difficult to ‘tame’35 or those playing central roles. Perhaps Oviglio’s affinity with the moderate wing of the Fascist Party had partially driven him to hide the radical nature of these measures. The subsequent Royal Decree no 1921 of 14 September 1923 was inspired by the same principles concerning the status of judges and control by the executive (or rather by the Minister of Justice) over the judiciary was generally strengthened. Conversely, careerism, an atavistic ‘disease’ of the judicial order, was exacerbated by the 1923 reform (Consolidated Text 30 December 1923 no 2786, the so-called ‘Oviglio reform’) through control mechanisms already provided for and strengthened by the judicial system of 1865. In particular, career progression was bound to the judgement of hierarchical superiors during various competitive exams. Therefore, the control by the executive power over the most important offices (whose employees were directly appointed by the Council of Ministers), also ­generated a pervasive control over all other subordinate offices: once controls over those 34 Note M Meccarelli, ‘Giurisdizione penale e legalità nel pensiero di Lodovico Mortara’ (2007) 36 Quaderni fiorentini per la storia del pensiero giuridico moderno 957. 35 On the regime’s judicial ‘purges’ see P Saraceno, ‘Le “epurazioni” della magistratura in Italia. Dal Regno di Sardegna alla Repubblica 1848–1951’ (1993) 3 Clio 515.

172  Riccardo Cavallo who held the top positions were in place it was easy to control those who were subject to them as well. Ultimately, concealed under the apparently technical adjustments was a political intent:36 to strengthen executive powers in order to control hierarchically the careers of judges.37 In this way, from the very beginning Fascism laid the foundations for the future construction of an authoritarian system, whose structure was very different from that of the previous Liberal system. The most obvious change, in addition to those mentioned above, was undoubtedly the unification of the Supreme Court. This novelty, while a response to the necessity of uniformity in the ordinary interpretation of the law, gave the state the opportunity to oversee the judiciary from the top. In exchange, it offered the Supreme Court judges the opportunity to become the final arbiters of legal interpretation, and thus to assume an exceptional power. In other words, it was the beginning of a partnership between political power and the judiciary, which would become gradually stronger and more durable over the years.

The Architect of Fascist Justice: Alfredo Rocco An obviously prominent role in the consolidation of the Fascist judicial edifice38 was Alfredo Rocco.39 As Minister of Justice from 1925 to 1932, which were decisive years for the regime,40 Rocco was the architect of a series of reforms that left an indelible mark on Italian law and transformed the face of the state. Rocco’s role was also decisive in controlling the judiciary. As Minister of Justice, he was granted power over the judges’ careers, including control of their movements and the ability to issue disciplinary measures. Rocco had repeatedly insisted on these aspects of control, since he was well aware that holding these powers meant a strong influence over judicial activity. Therefore, Rocco’s work was focused essentially on promotions and, more generally, on the careers of judges, an approach to systemic controls that came to characterise Fascist judicial policy. Indeed, his successor, Pietro De Francisci, also dealt with this problem and had a clear idea about the possible solution. As he argued on several occasions from July 1932, ‘the idea of a self-governing judiciary was evidently the antithesis of the Fascist conception of Government, like the principle of immovability, as it was a sort of ­“libertarian” prejudice, not only anachronistic but also dangerous’.41 The regime’s suspicion 36 The militarisation of the bureaucracy and the judiciary made by the Oviglio reform of the judiciary was the object of corrosive criticisms by the Liberal jurist Luigi Lucchini: see MN Miletti, ‘Dall’adesione alla disillusione. La parabola del fascismo nella lettura panpenalistica di Luigi Lucchini’ in I Birocchi and L Loschiavo (eds), I giuristi e il fascino del regime (1918–1925) (Rome, Roma TrE-Press, 2015) 311–12). 37 On Fascism’s judicial policy and the status of the judge (career progression, transfers and sanctions, ­disciplinary proceedings), highlighting a line of continuity between the Liberal era and the Fascist regime, see A Pignatelli, ‘I controlli politici sul giudice dallo stato liberale al regime fascista’ (1975) 1 Politica del diritto 103. 38 E Gentile, Il mito dello Stato nuovo dall’antigiolittismo al fascismo (Rome–Bari, Laterza, 1982) 167–204. 39 E Gentile, F Lanchester and A Tarquini (eds), Alfredo Rocco: dalla crisi del parlamentarismo alla costruzione dello Stato nuovo (Rome, Carocci, 2010). 40 G Vassalli, ‘Passione politica di un uomo di legge’ in A Rocco, Discorsi parlamentari (Bologna, il Mulino, 2005) 41. 41 P De Francisci, ‘Stato di previsione della spesa del Ministero di grazia e giustizia, per l’esercizio finanziario dal 1° luglio 1933 al 30 giugno 1934’ in Atti Parlamentari. Camera dei Deputati. Legislatura XXVIII. 1° sessione. ­Discussioni. Tornata del 3 marzo 1933, 7962. On De Francisci see C Lanza, ‘La realtà di Pietro de Francisci’ in I Birocchi and L Loschiavo (eds), I giuristi e il fascino del regime (1918–1925) (Rome, Roma TrE-Press, 2015) 219, fn 17.

The Judiciary and Political Power  173 towards the judiciary thus remained constant, and even after Rocco, the other ministers increasingly tightened controls, effectively neutralising any margin of autonomy and ­independence for the judges. Moreover, it is sufficient to read Rocco’s parliamentary speeches to understand his attitude, as well as that of the regime, towards the judiciary. In his first steps as Minister, Rocco had already faced the thorny issue of judicial independence from the executive. He stated that the principle of the separation of powers should not mean ‘isolation of the powers’,42 but above all, it should mean division in spiritual and/or moral terms. Likewise, in the session of 21 March 1925, Rocco considered reform of the judiciary as one of the ‘most tormented [problems] that has tormented … all Ministers of Justice since 1865’.43 He asked for the organic reform of the judiciary with specific regard to the problem of careers and the economic treatment of judges, which was not to be reduced to a pecuniary matter but also considered as a ‘moral’ one.44 In an attempt to validate the hypothesis that the judiciary was operating without any form of political conditioning, Rocco mentioned legal cases concerning the acquittal of socialist and communist militants, as well as other cases condemning members of the Fascist Party. These cases were often anecdotal and without political significance. For example, a Fascist was sentenced to two-and-a-half years in prison for assault for having cut off the beard of an alleged socialist militant.45 Nevertheless, such cases were invoked to demonstrate the intransigence and rectitude of the regime. In addition, Rocco did not fail to praise the work of his predecessor, Oviglio, for his courage in reforming the districts and diminishing the judicial offices, highlighting the economic and moral benefits of his reform. Beyond these opinions (often extended as courtesies towards the previous ministers), Rocco was especially worried about the organic reform of the judiciary, through modifying the rules concerning recruitment and career progression and, above all, the matter of judicial independence.46 In particular, as Rocco stated several times, judicial independence had to be understood not in the absolute and abstract sense of the term, or as the absolute freedom to act, but in a concrete sense, being a ‘public function’ (and therefore also latently a political one). Although Rocco claimed that he would never directly or indirectly interfere with the activities of the judiciary by eliminating the formal guarantees safeguarding its independence, he concluded that he was still confident that judges’ behaviour would be imposed by the law and by the force of the Fascist regime.47 Evidently, not all judges showed that they were spontaneously guided ‘by the force of the Fascist regime’ if Rocco had to intervene repeatedly with circulars to dictate judicial behaviour. It is sufficient to note the circular of 13 September 1928 on Proceedings on Offences against the Head of Government (Procedimenti per offese al Capo del Governo).48 In this circular, Rocco stated that Public Prosecutors must initiate proceedings against not only 42 A Rocco, Discorsi parlamentari (Bologna, il Mulino, 2005) 128. 43 ibid 149. 44 According to Rocco the judges must be respectful not only of legal norms but also of ‘the spirit of the State’: Meniconi, Storia della magistratura (n 11) 209. 45 Rocco, Discorsi parlamentari (n 42) 152. 46 A Rocco, ‘Introduzione’ in A Rocco, La trasformazione dello Stato. Dallo Stato liberale allo Stato fascista (Rome, La Voce, 1927) 5–31. 47 ibid 248–60. 48 See C Schwarzenberg, Diritto e giustizia nell’Italia fascista (Milan, Mursia, 1977) 164.

174  Riccardo Cavallo the most serious cases, but also minor ones, since even these could jeopardise the prestige of Mussolini. This was not a rare interference in the Fascist era, since the political use of circulars became more and more frequent in order to call on the Public Ministries to persecute crimes of particular relevance to the regime. On the contrary, other circulars, such as those that were strictly confidential, were sent by Rocco to General Prosecutors in order to dissuade them from prosecuting offences against the Head of Government ‘which were not of a certain gravity and did not lead to the punishment provided for by law’.49 Therefore, aside from the good intentions he expressed, Rocco’s attitude towards the judiciary can be summarised by the emblematic words he pronounced in Parliament on 19 June 1925: ‘the judiciary must not engage in politics of any kind. We do not want them to be on the side of government or Fascism but we firmly insist that they must not engage in anti-government or anti-Fascist politics’.50 Although in light of this claim debate about the neutrality of judges under the Fascist regime is ongoing, the view expressed by Rocco is even more emblematic if we connect it with what he said elsewhere, in particular, his words of praise when judges assimilated the Fascist spirit. In fact, Minister Rocco argued not only that the judges embodied ‘the spirit of Fascism’ that ‘has penetrated the judiciary more rapidly than in any other category of officials and professionals’,51 but he also used a series of examples to show how the Supreme Court, as well as lower courts had correctly interpreted and actually (‘through facts’)52 applied that Fascist spirit. Among the many examples, the most interesting relates to a judgment of the Supreme Court regarding an offence against the Head of Government. In this judgment it was stated that: ‘it is not forbidden for citizens to be involved in the political life of the country’ but ‘it is prohibited to hinder the Fascist government’s reconstruction work with offences against national discipline’. According to Rocco, this was the tangible proof that the judiciary had adhered to the rules of the Fascist regime.53 Ultimately, this shows how Alfredo Rocco ‘incarnated the anti-democratic turn more than the moderate Oviglio’.54

Dino Grandi’s Reform Dino Grandi’s reform (1941), rightly defined as ‘completely Fascist’,55 was the last and perhaps the most impressive measure of the regime.56 Its purpose was apparently the 49 C Storti, ‘“Un mezzo artificiosissimo di governo per ottenere con inganno e con vie coperte ciò che apertamente non si potrebbe ordinare”. Le circolari dei ministri di giustizia sul processo penale tra unificazione e fascismo’ in F Colao, L Lacchè, C Storti and C Valsecchi (eds), Perpetue appendici e codicilli alle leggi italiane. Le circolari ministeriali, il potere regolamentare e la politica del diritto in Italia tra Otto e Novecento (Macerata, EUM, 2011) 606. 50 Rocco, Discorsi parlamentari (n 42) 213. 51 ibid 417. 52 ibid 418. 53 AP, Camera, Legislatura XXVIII, Sessione 1929, Discussioni, vol I, 16 May 1929, 311–12. 54 Meniconi, Storia della magistratura (n 11) 195. 55 A Meniconi, ‘Magistratura e ordinamento giudiziario negli anni della dittatura’ in G Melis (ed), Lo Stato negli anni Trenta. Istituzioni e regimi fascisti in Europa (Bologna, il Mulino, 2008) 198. 56 G Neppi Modona and M Pelissero, ‘La politica criminale durante il fascismo’ in L Violante (ed), Storia d’Italia. Annali 12: La criminalità (Turin, Einaudi, 1997) 819–29.

The Judiciary and Political Power  175 r­eorganisation of judicial careers, in particular, by unifying fragmentary legislation issued since 1923. Therefore, on the one hand, the aim was to consolidate the j­udiciary’s dependence on executive power through the creation of tight internal constraints between lower-ranking judges and heads of judicial office and, on the other, to negate all forms of judicial independence and autonomy in order to put the stamp of Fascism on this reform. This purpose was quite evident from reading the report of Minister Grandi57 that accompanied the text of the law presented to the King on 30 January 1941.58 After emphatically stating that only Fascism had faced ‘the problem of the reorganization of the judiciary, their duties and judicial offices with an organic and totalitarian method’,59 Grandi explained that his ambition was not to retrace the different stages of the reform but to announce the main innovations over the previous system. If the first step was the reform of the Codes (a prerequisite for any other change), Grandi stated that the Supreme Court once again played a prominent role, because of its traditional function as the ultimate guardian of legality, in the sense that it had been established with the primary purpose of maintaining ‘the exact observance and uniform interpretation of the law’ and ‘the unity and the national objectivity of law’.60 This usefully highlights the importance of the Supreme Court’s decisions. Although not having a normative relevance, they certainly had an exegetical function that served as a constant guide to the lower judges and, although not comparable with the authentic interpretation of law (usually provided directly by the legislator), could come close to it. Grandi indeed described the Supreme Court as a sort of guiding light, so intense as to illuminate for the judges the thorny path of legal interpretation. This constant light, like a sun around which the judicial planets orbit, can only be singular by virtue of ‘its superb juridical and political sensitivity, in conformity with the essentially renovatory spirit of the Fascist laws’.61 If that was the dominant role of the Supreme Court, we can ask what space was left for the other judges. In any case, apart from their rank, Grandi preferred to talk about judges’ discipline and guarantees, rather than a mere ‘career’, since this profession was not in the Minister’s opinion a mere job, but a kind of vocation. In addition, Grandi insisted on the need to avoid the separation of careers between praetors and other judges, by setting up a single competitive exam to avoid the former being considered as lower ranking. If the Fascist state laid ‘justice as the foundation of every social and individual relationship’,62 it meant that law enforcement had to be applied in the same manner by all judges. In any case, the sine qua non for this principle was the independence of the judiciary. However, this principle assumed a very particular connotation in the framework of the Fascist regime since jurisdiction was not an autonomous power of the state. Also, the judiciary had to shape ‘its activity on the general guidelines of the Government for the exercise of any public function’.63 57 ‘Relazione del Ministro Guardasigilli al testo dell’Ordinamento Giudiziario’ in Gazzetta Ufficiale del Regno d’Italia, 4 febbraio 1941, parte prima, anno XIX. 58 On 30 January 1941, 16 years after the first delegation to the government, the new law on the judiciary was finally approved. 59 ‘Relazione del Ministro Guardasigilli al testo dell’Ordinamento Giudiziario’ (n 57) III. 60 ibid IV. 61 ibid V. 62 ibid IX. 63 ibid IX.

176  Riccardo Cavallo In this sense, even the main guarantee of independence, which consisted of the immovability of the judges, was recognised by Fascism only in theory and was almost entirely neglected or more exactly transposed in terms of administrative discretion.64 Even though there were a number of limitations established by the law (sometimes, the opinion expressed by the Superior Council of the Magistrature was not sufficient and, in other cases, an imperative and unilateral modification was required), the application of the guarantee of immovability often existed only on paper. Moreover judges, like other public officials, were in a relationship of particular dependence with the state, which imposed on them a special code of conduct, not only in the exercise of public office but also in their private lives. Emblematic of this was, for instance, the obligation introduced in 1932 for anyone wanting to become a judge to hold a Fascist National Party membership card, which was made a mandatory requirement in 1940 for members of the judiciary to remain in office. Therefore, these changes were in line with those already made in previous years, especially the 1923 abolition of the electoral system of the Superior Council of the Magistrature and the 1925 prohibition of judges associations, making the exercise of any form of judicial independence impossible. As we can see from these brief notes, the principles inspiring the reform were, on the one hand, the explicit refusal of judicial self-government and, on the other, the establishment of a hierarchical and pyramidal system.65 The judges at the summit of the Supreme Court were charged with the task of selecting the future judges for the Court of Appeal and, in many cases, for the Supreme Court itself. This facilitated the complicity between the Minister of Justice and the judges of the Supreme Court, as well as between the latter and other judges.66 The Minister had to supervise directly or indirectly all judges, districts and public prosecutors, as he held a wide range of powers related to the whole system of judicial career progression (appointments to high-ranking positions, career advances, transfers, promotions and disciplinary sanctions).67 This was in concert with the scaled-down Supreme Court that exhorted lower-level judges to conform to its rulings, thus contributing to a perfectly aligned and uniform judiciary: Like his predecessors Grandi, in his memoirs published after the fall of the regime, wanted to highlight the judiciary’s absolute independence, recalling once again the almost sacred role they played, completely free of any political interference. He argued that the judiciary has fought a hard, tough, silent struggle for twenty years. Defenceless, it found no other support except in its probity and in the law.68

Grandi tried indirectly (and posthumously) to justify the work he carried out during Fascism, by seeking to show its ‘technical’ nature and that it was not devoted to political directives but to absolute, and almost immutable and eternal principles of righteousness and justice. This was despite a reform that, as we have seen, went in a different direction

64 See Pignatelli (n 37) 121. 65 G Zagrebelsky, ‘La magistratura ordinaria dalla Costituzione ad oggi’ in L Violante (ed), Storia d’Italia. Volume 14. Legge diritto giustizia (Turin, Einaudi, 1998) 713. 66 ibid 718. 67 The Minister also had to appoint the First President and the General Prosecutor of the Supreme Court as well as the President and General Prosecutor of the District and the General Prosecutor at the Court of Appeal (Arts 188 and 189). 68 D Grandi (R De Felice, ed), Il mio paese. Ricordi autobiografici (Bologna, il Mulino, 1985) 494.

The Judiciary and Political Power  177 and that we can indeed undoubtedly define a real ‘anti-democratic’ reform, being characterised by a strong authoritarian imprint and a Fascist vision of the judicial role.69

Authoritative Voices from the Palace of Justice As evidenced above, it was necessary to contextualise the judiciary’s work within this complex legal framework, including laws, regulations and circulars.70 The role played by the Supreme Court was particularly influential; after its unification by the regime it became the centre of power in the politics concerning the administration of justice.71 The strong position of the Supreme Court was deeply rooted in Italian history: from the national unification to the establishment of Fascism, its repressive and authoritarian approach in criminal trials had facilitated or even cleared the ground for Fascist reforms. In this context, the ordinary judiciary had also been part of a repressive, complex and well-oiled machine. This was demonstrated by the powers entrusted to the judiciary and to the Special Tribunal for the Defence of the State.72 These powers appeared to have made the judicial system into a tightly woven net from which it was impossible to escape. Under Fascism, the administration of justice had always been a formidable tool for the consolidation of the regime’s political system. Moreover, the mask of legality was used as a cover for all arbitrary acts73 alongside other institutions, such as the police and the army, as part of a wider aim of fascistising the judiciary. In fact, the crucial role of the judge in the ‘Fascist revolution’ can also be inferred from doctrinal interventions. For instance, in the 1930s, Carlo Costamagna wrote in the journal that he directed, Lo Stato74 that ‘the spirit of the Fascist revolution is typically political [a]nd accordingly it seems right to see the judge as the personality who with his will can take command to ensure the life of the community’.75 Costamagna was well known for his ultra-Fascist positions and was also one of the most representative figures of public law doctrine in this era. Similarly, it is informative to note the emblematic words declared by the eminent judge, Giovanni Appiani during the inauguration of the Judicial Year of the Supreme Court on 5 January 1927. Appiani stated that ‘justice is not an absolute concept, but also a political 69 Meniconi, ‘Magistrati e ordinamento giudiziario’ (n 55) 199–200. 70 On Circulars as means of ministerial control over the exercise of criminal prosecution by the judges see Storti, ‘Un mezzo artificiosissimo di governo’ (n 49); on the legal status of circulars see A Fusco, ‘La circolare nella ­giurisprudenza dall’unificazione legislativa alla caduta del fascismo’ in F Colao, L Lacchè, C Storti and C Valsecchi (eds), Perpetue appendici e codicilli alle leggi italiane. Le circolari ministeriali, il potere regolamentare e la politica del diritto in Italia tra Otto e Novecento (Macerata, EUM, 2011). 71 On the political role played by the Supreme Court in supporting the interests of the regime, note Abbamonte, La politica invisibile (n 9). 72 For a general outline of the Special Tribunal see E Gallo, Il Tribunale speciale per la difesa dello Stato e il suo ambiente politico-culturale (Rome, Stilgrafica, 1980); and LP D’Alessandro, ‘Per una storia del Tribunale speciale: linee di ricerca tra vecchie e nuove acquisizioni’ in L Lacché (ed), Il diritto del Duce. Giustizia e repressione nell’Italia fascista (Rome, Donzelli, 2015). 73 E Musumeci, ‘The Positivist School of Criminology and Italian Fascist Criminal Law: a Squandered Legacy?’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015). 74 M Toraldo di Francia, ‘Per un corporativismo senza ‘corporazioni’: “Lo Stato” di Carlo Costamagna’ (1989) 18 Quaderni fiorentini per la storia del pensiero giuridico 267. 75 C Costamagna, ‘L’unità giurisdizionale e le esigenze ‘corporative’ della giustizia’ (1938) 9 Lo Stato 266.

178  Riccardo Cavallo phenomenon, an essential function of the State … it is not a power above or beyond the State or independent from it’. He emphasised that ‘the task of the judge should conform to the new juridical-social order, to the new sense of justice and the changed mentality of the Italian people’.76 This opinion was not rare or only expressed in order to ingratiate himself with the regime, since Mussolini had exercised both direct and indirect political control by appointing the heads of the judiciary and judges who, in addition to distinguishing themselves through their work, had shown absolute fidelity to Fascism. Apart from the aforementioned Appiani (in the meantime appointed as senior legal officer (procuratore generale) at the Supreme Court) another key figure of Fascist legal science77 was the eminent jurist Mariano D’Amelio.78 At the age of 39, he had completed a traineeship in Eritrea and had won the competition to become a judge of the Supreme Court. At the age of 52, he was appointed as the first president of the unified Supreme Court in 1923 (thanks to the ‘forced’ retirement of Mortara).79 Appiani and D’Amelio, who even in their early years (in the Liberal era) had already held prestigious assignments, demonstrated under Fascism unconditional loyalty to the regime, even though Appiani was ‘expelled’ in 1929 (or rather, forced to take early retirement) due to his (even veiled) criticism against the working of the Court directed by D’Amelio.80 During Fascism, their role was decisive because it succeeded in achieving direct control over the judiciary by the executive. In particular, D’Amelio was viewed as a ‘man burdened with many duties in prestigious public bodies, institutions and associations’81 and ­consequently, had a strong political significance. This was due to the direct intercession of Benito Mussolini, as well as the lengthy duration of his appointment. In short, he was the ‘absolute monarch’ of the Supreme Court as evidenced by his service throughout most of the regime’s years in power (1923–41). D’Amelio’s role was vital in building the Fascist state. The Supreme Court’s power extended to the selection of judges. Working in concert with the Minister of Justice, the choice of judges of the Court of Appeal and among them those destined to be part of the Supreme Court, came about through co-optation by commissions composed of judges of the Supreme Court, chosen by the Minister of Justice. The system therefore … accomplished a ­necessary harmony between the Minister and the Supreme Court, and between the latter and the whole judiciary.82

Moreover, D’Amelio underlined a different role for the Superior Council of the Magistrature and its powers of self-government, especially regarding the matter of judicial promotions. Likewise, an important role was also played by the new Public Prosecutor’s Office,83

76 G Appiani, ‘La giustizia nel nuovo Stato’ (1926) L’Eloquenza 13–14. 77 Abbamonte, La politica invisibile (n 9) 131 ff. 78 On the role played by D’Amelio under the Fascist regime see G Cianferotti, Il pensiero di VE Orlando e la giuspubblicistica italiana tra Otto e Novecento (Milan, Giuffrè, 1980) 226 ff; and Abbamonte, La politica invisibile (n 9) 124 ff. 79 L Mortara, Lo Stato moderno e la giustizia (e altri saggi) [1885] (Naples, Edizioni scientifiche italiane, 1992). 80 Abbamonte, La politica invisibile (n 9); and Meniconi, Storia della magistratura (n 11) 311–12. 81 O Abbamonte, ‘Fra tradizione ed autorità: la formazione giurisprudenziale del diritto durante il ventennio’ (2011) 40 Quaderni fiorentini per la storia del pensiero giuridico moderno II 869. 82 Zagrebelsky (n 65) 718. 83 G Bartellini Moech, Il pubblico ministero dallo Stato liberale allo Stato fascista. Significato di un ordinamento (leggi e circolari) 1865–1941 (Rome, Arti grafiche Jasillo, 1966).

The Judiciary and Political Power  179 as delegated by the Executive and under the control of the Ministry of Justice. Ultimately, D’Amelio’s aim was the ‘refurbishment’ of the judiciary as he transformed the institution to reflect the Fascist state. According to D’Amelio, it was necessary to continuously improve on the developments initiated by the regime. Essentially, the regime aimed to give the judiciary ‘ever greater harmony of form and sharpness of thought’.84 The three ideas underlying the Fascist reform of the judiciary can therefore be summarised as follows: (a) unification of the judicial system; (b) complete or partial suppression of special jurisdictions; and (c) planning the judicial reform by returning (albeit only on paper) to the inspirational ideas of 1865, or rather liberal values. These three elements were well documented in history. During an intervention at the First Italian Legal Congress in Rome,85 the National Fascist Union of Lawyers and Prosecutors of Rome organised an event at the Palace of Justice in early October 1932. Some of the most distinguished jurists from the regime assembled to celebrate the tenth anniversary of the March on Rome. Ministers, judges, lawyers and law professors from Italian universities were present for D’Amelio’s speech. At that time, he was President of the Supreme Court. His speech, entitled ‘The Organization of Judicial Institutions in the Regime’s Reforms’ is informative, despite the usual emphatic rhetoric used.86 Specifically, his speech pointedly defined the ongoing judicial reform project that was ingrained with Fascist principles and therefore institutionalised them. Above all, he said, the judiciary’s role had significantly extended to the Supreme Court and had evolved into one that reflected the Fascist goals of the regime. The opening speech by the Minister of Justice, Pietro De Francisci, had underlined the importance of abandoning old dogmatism, or rather the legal formalism guilty of having reduced law to abstraction. Additionally, his speech focused on developing new concepts and categories that were in line with the social and economic changes that had long existed within Fascist society.87 In the same afternoon session D’Amelio’s intervention88 illustrated the main reforms of the judiciary implemented over the past decade by the regime. The Duce did not hesitate to praise De Francisci’s report while also exalting the ‘Romanity’ in its multiple aspects – military expertise, legal organisation and public works. It is significant that the origins of law according to Mussolini were rooted in mythical Roman civilisation, where there was no distinction between law and justice; specifically, the Roman consuls considered the administration of justice as a mission.89 Therefore, this concept in the ­opinion of the Duce was destined to last in time. D’Amelio possessed an innate desire to overcome the deficiencies of previous governments. However, over the course of 50 years, he had managed to launch only

84 Atti del 1° Congresso giuridico italiano. Le relazioni I, 32, a cura del Sindacato nazionale fascista avvocati e procuratori di Roma (Tivoli, Tip Mantero, 1933). 85 Atti del 1° Congresso giuridico italiano: le relazioni (I), le comunicazioni (II), le discussioni (III), a cura del Sindacato nazionale fascista avvocati e procuratori di Roma (Tivoli, Tip Mantero, 1933). 86 On these rhetorical issues see A Santangelo Cordani, ‘La retorica dei procuratori generali all’inaugurazione degli anni giudiziari nella Milano fascista’ in G Cazzetta (ed), Retoriche dei giuristi e costruzione dell’identità nazionale (Bologna, il Mulino, 2013) 315. 87 Atti del 1° Congresso giuridico italiano. Le discussioni III, 12–28. 88 Atti del 1° Congresso giuridico italiano. Le relazioni I, 3–32 and III, 35–41. 89 ibid I, 29–32.

180  Riccardo Cavallo a series of scattered measures without being able to realise substantive reform of the judiciary. The approach used by D’Amelio in his synthetic and, in many ways unilateral, analysis of the history of reforms to the judiciary could be summarised in the motto ‘demolish before reconstructing’.90 D’Amelio’s desire was to highlight the inadequacy and defectiveness of judiciary reforms until the advent of Fascism, and especially after the Liberal era. According to D’Amelio, the matter of judicial reform was extremely urgent. The previous judicial selection process had led to the recruitment of unskilled judges. For example, some judges had failed to enter the ranks of the Public Administration and the judicial career was for them a makeshift solution. In this sense, joining the judiciary was seen as ‘the port where the victims of shipwrecked state careers can take shelter’.91 Similarly, Minister Oviglio had weighed in on the issue of complete or partial abolition of special jurisdictions. For example, these jurisdictions had multiplied in number over the years, increasing his uncertainty: ‘the immense tree of special jurisdictions, which with its ramifications overshadowed ­Italian legal life, had had several branches chopped off by the Government’s wise axe’.92 D’Amelio believed that the real problem lay elsewhere. He sought to remove all causes of crisis in the judiciary. D’Amelio believed that the law of 1865 was mostly in line with Fascist ideology, despite needing some legal modifications. Essentially, the law’s purpose was aimed at a unified concept of jurisdiction. However, being a long and difficult legislative pathway, it was necessary to prepare the groundwork for fundamental and unitary reform. D’Amelio declared ‘the most rational organization of the judiciary is the open Fascist conception’.93 While the new judicial system was being developed, the architectural lines constituting the new Fascist judicial order were also being drawn. The most innovative aspect was, as noted, the unification of the Supreme Court and the subsequent establishment of the Ufficio del Massimario – or ‘maxim’ office – within it, which was charged with identifying the legal principle contained in the Court’s decisions. This was called the ‘maxim’ and was used to make legal interpretation more certain and uniform. The unification of the Supreme Court94 responded to the objective requirements for uniformity in the interpretation of law by the lower courts. In an authoritarian and centralised state, the Supreme Court had the opportunity to closely monitor the judges below it. Even with the changes to the Supreme Court, the reform of the judicial system could not be completed without the simultaneous reform of the Codes: ‘it is not possible, indeed, to create and regulate organs without first knowing exactly what functions they must perform’.95 Accordingly, D’Amelio justified Oviglio’s work by referencing Law no 2718 of 1923. He had ‘purged’ the judiciary of unwanted judges and was able to justify this measure by stating that it was only a temporary suspension of the guarantee of immovability. 90 ibid I, 10. 91 ibid I, 8. 92 ibid I, 11. 93 Atti del 1° Congresso giuridico italiano. Le discussioni III, 37. 94 C Guarnieri ‘La Corte di Cassazione’ in L Violante (ed), Storia d’Italia. Annali 14 Legge Diritto Giustizia (Turin, Einaudi, 1997). 95 Atti del 1° Congresso giuridico italiano. Le relazioni I, 17.

The Judiciary and Political Power  181

In the Fascist Courtrooms If these were the guidelines of the Ministry of Justice and the evolution of the organisation of the judicial system before and under the regime, we must question how the judges actually worked in the courts and, above all, whether and how they had adopted the antidemocratic values imposed by Fascism. In this regard, ordinary judges applied the criminal policy of the regime. Despite the emphasis on the role played by the Special Tribunal for the Defence of the State, it should be noted that it was a political court. This court was established, as was common in other authoritarian states,96 to deal with emergencies, and was also used to overcome the ‘Liberal paradox of Freedom’.97 Over the course of 15 years (1926–40), the Court passed only nine death sentences for 5,619 defendants who appeared before it during peacetime. In total, it handed down 4,596 prison sentences.98 Therefore, since the Special Tribunal had done all the political ‘dirty work’ for the regime, the majority of cases remained in the hands of the ordinary courts, which gave them a conservative and pro-regime stamp in a more underground but certainly pervasive way. In addition to being traditionally conservative, the judiciary played a classist role in many cases. It used its legal weapons by interpreting the law in an authoritarian way in order to hit the popular classes, especially in southern Italy. This led to the consolidation of power by the upper social classes because the landowners had given their support to the government.99 It is undeniable that some judges adopted a technical and formal approach to the law, with the aim of respecting the values of freedom. However, in reality there were not many such decisions, because the respect of liberal principles occurred mostly in criminal cases in the lower courts (Tribunals, Municipal Districts and rarely, Courts of Appeal), that were frequently cancelled by the intervention of the Supreme Court. In most cases, the judges were more obsequious to the values of Fascism; any case of dissent was rare and thus immediately isolated.100 Although there were different degrees of fascistisation among the judges, it was ‘measurable’ across different elements. This included the date of their National Fascist Party enrolment, their relationship with party officials and the related categories of fascist judges (‘parade fascists, protofascists, natural fascists’).101 Above all, as the judges of the Supreme Court were compliant with the inspirational ideas of the regime, their tendency towards homogeneity and uniformity of Fascist values in their decisions progressively influenced the ordinary judges. Essentially, ordinary judges were expected to make certain choices directed at the radical repression of every form of free expression of thought and political dissent. Furthermore, under the Fascist legislation and the 1930 Penal Code there was an exponential increase in the number of crimes compared with the p ­ re-Fascist Zanardelli Penal Code, which meant that Fascist values were being enforced through cases involving these new offences. Also, a gradual increase in the severity of punishment occurred, reducing citizens to the rank of subjects forced into a religious silence. By retracing some 96 HP Graver, Judges Against Justice: On Judges When the Rule of Law is Under Attack (Berlin, Springer, 2015) 151. 97 L Lacchè, ‘The Shadow of the Law: the Special Tribunal for the Defence of the State between Justice and Politics in the Italian Fascist Period’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015) 19–22. 98 See Neppi Modona, ‘Quali giudici per quale giustizia nel ventennio fascista’ (n 8) 212. 99 See G Neppi Modona, Sciopero, potere politico e magistratura (1870–1922) (Bari, Laterza, 1969) 333. 100 Melis, La macchina imperfetta (n 13) 343. 101 Focardi (n 4) 40.

182  Riccardo Cavallo of the decisions related to ‘crimes of opinion’, it is clear that an authoritarian inspiration led to the repression of any form of dissent while it was in a very early stage. For example, the Law no 2263 of 24 December 1925, established offences against the Head of Government (Mussolini). This Law was aimed at recognising his role as being subordinate only to the King and as a result any act committed against the person of the Duce, or ‘his life, his safety and his freedom’ (Article 9) tended to be prosecuted. While it is true that there were some elements of continuity between the jurisprudence of Liberal Italy and the Fascist regime, they were primarily related to formal matters of rights and freedoms, and were mostly limited to the early years of the regime. Subsequently, and despite those early connections, discontinuity prevailed because the judiciary progressively adhered to Fascist principles and values for personal reasons (such as ensuring career progression). Accordingly, the judiciary contributed to the overthrow of liberalism and the affirmation of Fascist values.102 In other areas of law as well, the judiciary had not shown full autonomy and independence. In this sense the field of labour law is emblematic, and in particular cases concerning the right to strike.103 In these cases, especially in a period characterised by numerous revolts and fights organised by trade unions, judges had already distinguished themselves for their reactionary attitudes during the Liberal era. Despite the liberal inspiration of the legislation at that time, often interpreted in a narrowly restrictive manner, judges incriminated every form of ‘conflict’ without any distinction. These cases had anticipated the subsequent criminalisation of strike action under Fascism and demonstrated how the judiciary was once again active in defence of the interests of the ruling class.104 Similarly, the Supreme Court’s jurisprudence was instrumental in the requests for political-economic power. Regarding collective dismissal, the Supreme Court’s austerity continued through a rigid and formal application of the law. Under the pretext of defending the principles of legality, the separation of powers and non-interference with the judiciary, the Supreme Court was able to hand down many decisions that were clearly against the interests of the workers. The judges minimised ‘the scope of freedom of association and demonstration protected, albeit minimally, by the provisions on freedom of work in the criminal code’, electing instead for the primacy of ‘principles of order over those of liberty’.105 All these factors show that whereas during the Liberal era the perhaps imaginary autonomy and independence of the judiciary had been considered weak, the pressures of association, along with the advent of Fascism, progressively diminished what was supposedly left of it. In this legal framework, the political role of the Supreme Court emerged alongside a close relationship between the Minister of Justice and the President of the Supreme Court. The Minister of Justice effectively had institutional control over the judges while the President of the Supreme Court supervised the courts. This political role 102 On the socio-cultural values expressed in case law from 1905 to 1915 and 1925 to 1935 see F Governatori, Stato e cittadino in tribunale. Valutazioni politiche nelle sentenze (Bari, Laterza, 1970); and R Odorisio et al, Valori socio-culturali della giurisprudenza (Bari, Laterza, 1970). 103 Neppi Modona, Sciopero, potere politico e magistratura (n 99); and GC Jocteau, La magistratura e i conflitti di lavoro durante il fascismo, 1926–1934 (Milan, Feltrinelli, 1978). 104 Neppi Modona, Sciopero, potere politico e magistratura (n 99) 40. 105 On the political-ideological dimension of labour conflicts see C Storti, ‘Lavoratori ribelli e giudici eversivi. Sciopero e licenziamento collettivo nella giurisprudenza di Cassazione tra 1900 e 1922’ in L Lacché (ed), Il diritto del Duce. Giustizia e repressione nell’Italia fascista (Rome, Donzelli, 2015).

The Judiciary and Political Power  183 was not confined to the legal field, having borne fruit practically and politically in the overturning of judgments that were not in line with Fascist values. A paradigmatic example of this was a judgment handed down by Judge D’Amelio during his tenure as President of the Penal Supreme Court. In that case, D’Amelio argued that the National Fascist Party and its organs were a fundamental part of the organisation of the state and no longer subject to private law.106 This decision was an important contribution to the birth of the new Fascist jurisprudence because it overturned the previous orientation of the Court of Appeal in Naples.107 More generally, it is useful to analyse, briefly, criminal cases heard by the Supreme Court after 1926. On the subject of crimes of opinion, it is important to understand how this Court accelerated the beginning of a new and daring approach that gradually became dominant jurisprudence. For example, the crime of vilification included a margin of discretion left by the legislator to the judge. This was so extensive that the offence could be interpreted sufficiently widely as to neutralise any form, even latent, of political disagreement. Thus, the offence effectuated the most emblematic example of a so-called ‘blank norm’, one that is extremely flexible and open to interpretation.108 In this sense, two different judgments published in 1926 and 1928 show the new attitude of the Supreme Court acting as a forerunner for Fascism. It is no coincidence that the author of both decisions was Antonio Marongiu, one of the most ardent ‘Fascist judges’ of the time. He had previously served as the President of the Court of Assizes of Emilia-Romagna and was then promoted to the rank of General Prosecutor of the Court of Appeal. He was also the author of a commemorative work concerning the important role played by judges ‘before and after the [Fascist] revolution’.109 This was produced to mark the tenth anniversary of the March on Rome, or rather ‘one of the most important Fascist celebrations’.110 Marongiu’s goal was to demonstrate the judiciary’s devotion to the principles and values of the regime. He collected some significant decisions of the Penal Supreme Court – explicitly those related to crimes against the state and the person of the King. For example, on 1 December 1926, an emblematic judgment was decided in a case of vilification against the Volunteer National Security Militia (Milizia volontaria per la sicurezza nazionale, or MVSN). The MVSN was commonly known as the ‘Black Shirts’ (Camicie Nere) and was considered as ‘an armed body of the Fascist State’.111 Similarly, the decision of 27 January 1928 concerned an alleged crime of outrage against the Fascist trade union of agricultural workers, considering the conduct a ‘contumelious action directly against the National Government’.112 Before the approval of the so-called ultra-Fascist laws in 1926, case law, especially that of the Supreme Court, had incorporated Fascist values and priorities. Essentially, the whole judiciary viewed itself as the epitome of patriotism and state centrality. For example, on 19 October 1925, the Supreme Court issued an exemplary decision regarding the offence 106 Governatori (n 102) 70–71. 107 ibid 69–70. 108 Note S Skinner, ‘Crimes against the State and the Intersection of Fascism and Democracy in the 1920s–30s: Vilification, Seditious Libel and the Limits of Legality’ (2016) 36 Oxford Journal of Legal Studies 482. 109 A Marongiu, Nel decennale della Marcia su Roma. La Magistratura italiana prima e dopo la Rivoluzione (Rome, Tipografia delle Mantellate, 1932) 7. 110 S Falasca-Zamponi, Fascist Spectacle. The Aesthetics of Power in Mussolini’s Italy (Berkeley, CA, University of California Press, 1997) 2. 111 A Marongiu, ‘Supreme Court Decision of 01.12.1926’ (1927) Rivista Penale 446. 112 A Marongiu, ‘Supreme Court Decision of 27.01.1928’ (1928) II Foro Italiano 134.

184  Riccardo Cavallo of vilification of the Italian flag, according to Article 115 of the Zanardelli Code under the section entitled ‘Crimes against the Fatherland’. This case occurred under the presidency of Silvio Longhi and judge Alberto Seganti had authored the judgment. The potential sentence for the crime was imprisonment for three to 20 months. In this case, a man was sentenced for two acts of extracting a green, white and red tricolour handkerchief from the jacket pocket of another citizen, throwing it on the floor and spitting on it. The Supreme Court confirmed the sanction that had previously been imposed in other instances and rejected the accused’s appeal. According to the Supreme Court, it was irrelevant that the simple handkerchief was not a real flag and was devoid of the coat-of-arms of the Savoys, the device at the centre of the Italian national flag at that time. According to the Supreme Court, the law applied to the act of irreverence to the Italian flag and the accused’s conduct constituted vilification of the Italian flag. Despite the absence of the coat-of-arms, this piece of cloth was still a ‘symbol able to talk to the soul of the people the religious language of the fatherland’.113 Therefore, even in this case, the Supreme Court once more had interpreted an article of the Penal Code in a repressive way in order to extend as far as possible the protection of the regime’s values. Moreover, this case reveals that a part of the lower ranks of the judiciary, such as the praetors, disagreed with the pro-regime guidelines chosen by the Supreme Court. This decision was indeed criticised by the pro-regime praetor Francesco Cigolini. Writing in the law review, La Scuola Positiva, Cigolini noted that that decision was ‘a sort of sentimental reaction’114 rather than a judgment based on ‘purely legal criteria’115 in the interpretation and application of the law. These and other decisions116 demonstrated the authoritarian tendency of the highest ranks of the judiciary, especially the Supreme Court, which no longer protected and defended the dignity of the person. On the contrary, they understood their primary role as being to protect and strictly sustain the utmost respect for the regime’s authority.117 These examples demonstrate the complicity between political power and the Supreme Court. Specifically, the Minister of Justice and his collaborators,118 alongside the Supreme Court’s President and his staff, were able to use the technical-legal mask as a method to enforce the values of Fascist ideology. As a result, the judges’ contribution to the regime was not merely passive and unconscious, but rather active and completely conscious.

Conclusion The Latin expression Perinde ac cadaver119 (which can be loosely translated as ‘like a dead body’) was adopted by the Jesuits to describe hyperbolically the absolute submission to the rule and will of superiors, to declare unhesitant obedience to their command and renounce 113 Cassazione penale II sez, 19 october 1925 – Lorenzi (1926) 1–2 La Scuola Positiva 332. 114 F Cigolini, ‘Lo sfregio alla bandiera nazionale’ (1926) 1–2 La Scuola Positiva 330. 115 ibid 331. 116 See Governatori (n 102) 55–96. 117 ibid 81. 118 On the role played by the staff working within the Ministry of Justice see A Meniconi, ‘La magistratura e la politica della giustizia durante il fascismo attraverso le strutture del Ministero della Giustizia’ in L Lacché (ed), Il diritto del duce. Giustizia e repressione nell’Italia fascista (Rome, Donzelli, 2015). 119 FS Merlino, Politica e magistratura dal 1860 ad oggi in Italia (Turin, P Gobetti, 1925) 83.

The Judiciary and Political Power  185 one’s own personality. This expression lends itself to the consolidated idea of a docile and obedient judiciary under the Fascist regime. Regardless of the justification by scholars or their apparent criticism, the traditional approach depicts the judge as a sort of ‘hero’120 or ‘victim’. Nevertheless, some judges succeeded in acting as an obstacle to the degeneration of justice while objectively applying the law. In addition, even the scholar who has accused the judges for their ‘servility’, denouncing the general climate of ‘moral corruption’121 of the time, ultimately exonerates the judges. Studies have also shown the strong continuity between the Liberal era and the Fascist regime. These are based upon the examples of the use of circulars that existed under both systems.122 In a manner of speaking, the continuity thesis examines the world of the judiciary as a separate sphere operating on its own ­regardless of the regime in power (democratic or authoritarian). The intent of this chapter is to demonstrate conclusively a different reality despite the reassuring image. If the regime, at all costs, undeniably attempted to ‘fascistise’ the j­ udiciary, it is also true that the judges were voluntarily complicit in accepting the directives of the regime. These attempts were in the name of a supposed purity that tended to idealise the character of the judge.123 Indeed, the dangerous relationship between the judiciary and political power is apparent when the guiding values of the judiciary are analysed. These attributes were deferential and devoted to the cult of formalism, revealing strongly conservative politics in the social sense. Through judicial policy and pertinent legislation,124 regulations and circulars were issued during the 20 years of the regime in order to regulate relations between the ­judiciary and the executive power. This demonstrates how Fascism sought to bend this institution by making it functional relative to its interests. This was accomplished through intimidation, pressure and expulsions. Similarly, the judiciary’s behaviour can be ­measured by the degree of judges’ faithfulness to the regime. Through examination of the Supreme Court’s jurisprudence, we can understand its ‘political’ role. Namely, the institution at the head of the judiciary during Fascism assumed and demonstrated it was the custodian of the established order125 on subjects of particular political-social value. One example includes the relationship between authority and freedom, which were crucial in directing and pushing the lower judges to adapt their decisions to the regime’s dictates. In point of fact, the Supreme Court was not indifferent or against the regime, but rather its work was considered perfectly functional under the Fascist ideology which had permeated criminal law. This dark framework is worsened by the practice of providing recommendations and the traditional conservatism of the judiciary. Suffice it to say, the consolidated relationship between Minister Rocco and President D’Amelio in the decisive years at the beginning of the regime served as the foundation of the new idea of Fascist Justice. Therefore, the pre-existing nineteenth-century link between politics and the judiciary continued to be evident under Fascism. However, beyond the narrow margin of manoeuvre that existed under Fascism 120 P Calamandrei, Elogio dei giudici scritto da un avvocato [1935] (Milan, Ponte alle Grazie, 1989) 220. 121 Neppi Modona, ‘Diritto e giustizia penale nel periodo fascista’ (n 4) 374. 122 Meniconi, ‘La magistratura e la politica della giustizia’ (n 118) 80. 123 On the idea of independence, neutrality and the apolitical nature of judges more generally see M Luminati, Priester der Themis: Richterliches Selbstverstandnis in Italien nach 1945 (Frankfurt am Main, Klostermann, 2007). 124 Neppi Modona, ‘La magistratura e il fascismo’ (n 8). 125 Meniconi, ‘Magistrati e ordinamento giudiziario’ (n 55) 193.

186  Riccardo Cavallo as under any other authoritarian regime, the judges were not without guilt.126 Examples include their solicitude in asking for favours from their leaders about career progression, promotions, transfers and expressing extreme loyalty to the regime or its devotees. Thus, it is not surprising that in a dictatorial regime the courts are faithful outposts of power. Accordingly, the courts were enabled to adopt an absolutely legalistic approach, thereby surrendering with enthusiasm to the literal interpretation of the law and avoiding the exercise of any political function, with the exception of those who were merely ancillary. This extended not only to the single judge but also to the judiciary in almost its entirety.127 Ultimately, the autonomy and independence of the judges was perhaps only a mythological aspect of the state based on the rule of law in its formal representation, rather than the reality. After all, as it has been written, ‘justice in the Fascist State inevitably is – or becomes – Fascist justice’.128 Hence, it can be argued that there was a clear contradiction in assuming the judiciary was an autonomous and independent order refractory to any political interference. In contrast, the Fascist legislator who approved a set of rules aimed at neutralising any type of autonomy and independence gave the Minister of Justice many faculties to control the judges. The legislative corpus approved during the regime was enormous, ambitious and incisive.129 This was formally aligned with liberal legal tradition; in reality it was perfectly suited to the so-called glorious ‘Fascist revolution’.130 Alfredo Rocco openly underlined the regime’s beginning as a proper ‘revolution, undoubtedly’. This was due to the fact that it was ‘originated by a violent movement of people, culminating with the conquest of power by force, but above all because it had radically changed the legal orders, and also the notion of the State’.131 In spite of the different judicial system and legislative framework (and the values thereof) in force in Liberal Italy and under the Fascist regime, we can conclude that the attitude of the judiciary towards political power was a strong element of continuity: a strong bond that was strengthened even more by the regime. Thus, it is useful to paraphrase Sir Francis Bacon’s famous image of ‘judges must be lions under the throne’132 in light of Italian political and legal history. The judiciary, as well as legal science,133 has never been overwhelmed by political power but it has always operated in a relationship of complicity with it. 126 According to Meniconi, Storia della magistratura (n 11), under the Fascist regime the Ministry of Justice was more or less the occult engine of judicial policy, actually governed by a group of judges who, in turn, determined the fundamental choices of the judiciary. 127 See also G Tarello, ‘Orientamenti della magistratura e della dottrina sulla funzione politica del giurista ­interprete’ in P Barcellona (ed), L’uso alternativo del diritto. Scienza giuridica ed analisi marxista (Bari, Laterza, 1973) I, 73. 128 R Canosa and P Federico, La magistratura in Italia dal 1945 a oggi (Bologna, il Mulino, 1974) 64. 129 G Melis, ‘Le istituzioni italiane negli anni Trenta’ in G Melis (ed), Lo Stato negli anni Trenta. Istituzioni e regimi fascisti in Europa (Bologna, il Mulino, 2008) 92. 130 Although the term ‘revolution’ has a particular meaning in political science it was commonly used by Fascist intellectuals and politicians to define not only the years of Fascism’s birth in Italy but also the general politics of the regime. See also L Klinkhammer, ‘Was there a Fascist Revolution? The Function of Penal Law in Fascist Italy and Nazi Germany’ (2010) 15 Journal of Modern Italian Studies 390. 131 Rocco, ‘Introduzione’ (n 46) 5. 132 Recently this adage was used in the title of a book devoted to English legal history: S Sedley, Lions under the Throne. Essays on the History of English Public Law (Oxford, Oxford University Press, 2015) as well as previously by L Violante, Magistrati (Turin, Einaudi, 2009). 133 P Costa, ‘Lo “Stato totalitario”: un campo semantico nella giuspubblicistica del fascismo’ (1999) 28 Quaderni fiorentini per la storia del pensiero giuridico moderno 61.

9 National Socialism and the Law in Norway Under German Occupation, 1940–1945 HANS PETTER GRAVER*

Introduction On 9 April 1940 Norway was invaded by German troops. The country put up resistance aided by British and French forces, but the invaders quickly occupied the capital Oslo and the main cities of Bergen and Trondheim. The country was placed under German civil administration under the leadership of a Reichskommissar (or Reich Commissioner) by Decree of the Führer concerning the Exercise of Government Authority in Norway, 24 April 1940.1 The Führer vested the Reichskommissar with ‘supreme governmental authority’ and gave him the power to issue laws in the form of orders. The laws and statutes of Norway were to remain in force ‘in so far as is compatible with the fact of occupation’. By 8 June, the whole of Norway was under German rule, and the King and the Cabinet had left the country to continue their resistance as a government in exile based in England. These events led to a five-year term of German occupation and Nazi rule in Norway, under a German civil administration. The occupiers did not limit themselves to purely ­military aims for their occupation and sought to remould Norwegian society into a Nazi state. In this, they had the support of Norwegian collaborators led by Vidkun Quisling, the leader of the Norwegian National Socialist Party, Nasjonal Samling. Norway thus entered the group of states in Europe under fascist rule, with rulers committed to a fascist ideology and to transforming society into a totalitarian fascist state. After initial negotiations with the remaining Norwegian authorities, the Germans decided to establish a Norwegian civil administration based on the Nasjonal Samling. At the same time, the Reichskommissar issued the Order Prohibiting Political Parties in Norway, on 25 September 1940. The order did not apply to the Nasjonal Samling and its subsidiary organisation. On 7 October, the Reichskommissar issued orders concerning the Prohibition of Activities on Behalf of the Royal House of Norway and concerning the Dismissal and * A substantial part of the research behind this chapter was undertaken in the writing of Hans Petter Graver, Dommernes krig: Den tyske okkupasjonen 1940–1945 og den norske rettsstaten (The Judges’ War: The German ­Occupation 1940–1945 and the Rule of Law in Norway) (Oslo, Pax Forlag, 2015). 1 This and other decrees in English translation are reproduced in the collection of R Lemkin, Axis Rule in Occupied Europe, originally published by the Carnegie Endowment for International Peace, Washington 1944, Foundation of the Laws of War Series (Clark, New Jersey, The Lawbook Exchange Ltd, 2008).

188  Hans Petter Graver Transfer of Officials. This in effect made all political opposition to the occupation and to the Nasjonal Samling illegal. The Reichskommissar appointed commissioners as heads of each Norwegian ministry. This was done in understanding with Quisling, and most of the commissioners were members of the Nasjonal Samling. They exercised authority delegated from the ­Reichskommissar and under his supervision. They did not formally take decisions as a council, but they met regularly as a cabinet. Legally, there is no doubt that they were exercising power under German authority under international law. After a short while, the Germans claimed that the war in Norway was over, and that therefore The Hague rules of the 1907 Convention respecting the Laws and Customs of War on Land did not apply. They therefore claimed that these rules did not limit their jurisdiction and right to change the laws of Norway. On 1 February 1942, with German permission, Quisling proclaimed a national government by means of a ‘state act’. This was his coup d’état. He claimed to have jurisdiction based in Norwegian constitutional law and drew parallels to the situation when the constitutional assembly in 1814 declared the existence and independence of the Norwegian state. The declaration was possible because the Danish King had ceded jurisdiction over Norway to the King of Sweden after the Napoleonic wars. In 1942, the previous rulers had again ceded their jurisdiction by going into exile, and Quisling, in his own conception, rose to the occasion of the new ‘constitutional moment’. The Norwegian government in exile, however, refused to recognise this regime as a government, and maintained that the Quisling government based its power on the occupier’s authority, and that this in turn was bound by The Hague rules. Disregarding the legal dispute, these measures gave the Nasjonal Samling a unique position compared with National Socialist parties in other countries in Western Europe occupied by Germany. In Denmark, for instance, which also had a small National Socialist party, the Party never came near to exercising any influence on government, since the Germans accepted that the ordinary political institutions remained in power. In that context, the purpose of this chapter is to examine the role of law, legal policy and legal institutions in the governance of Norway, by the German occupiers and their fascist collaborators in the Nasjonal Samling. Law and legal procedures were a central part of the repression. During the occupation, 417 persons were executed, 325 of these after legal procedures in German and Norwegian courts. The total number of Norwegians imprisoned was 44,000. Most of these were held for a short period in Norway after an administrative decision by the police. Between 9,000 and 10,000 persons were sent to Germany, about a quarter of these after a conviction in a court or under the Nacht und Nebel programme. The remainder were sent to concentration camps or death camps based on administrative decisions. Among these were 776 Jews sent to their deaths, of whom only 38 survived. Of the 1,000 Nacht und Nebel prisoners, 500 died.2 The figures show that the ‘dual state’ was operative also in occupied Norway.3 The SS operated on the side of the German courts as 2 These figures are based on B Nøkleby, Skutt blir den … Tysk bruk av dødsstraff i Norge 1940–1945 (Oslo, Gyldendal Norsk Forlag, 1996) 194; K Ottosen, Liv og død: historien om Sachsenhausenfangene (Oslo, ­Aschehoug, 1995) 139; K Ottosen, Bak lås og slå: historien om norske kvinner og menn i Hitlers fengsler og tukthus (Oslo, Aschehoug, 1993) 9; and K Ottosen, Historien om nordmenn i tysk fangenskap 1940–1945: historien om ­Natzweilerfangene (Oslo, Aschehoug 1995) 50 and 375. 3 E Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (New York, Oxford University Press 1941; reprint The Lawbook Exchange Ltd, 2006).

National Socialism and the Law in Norway  189 in Germany itself, and after the Allied landing in France in July 1944, Hitler decreed that members of the resistance in the occupied countries should no longer be prosecuted, but hunted down and eliminated.4

Authoritarian ‘Rule of Law’ The Nazi and fascist dictatorships of the twentieth century were in a strange sense committed to the rule of law. They were not lawless states. On the contrary, there was a high degree of continuity from the previous regimes, both regarding substantive law, legal thinking and legal institutions. An important feature that distinguished them from their predecessors was the insistence that law be eliminated from the sphere of politics, and that the definition of the boundary lines between law and politics lay in the hands of the politicians, and not in the courts.5 This laid the foundation for the dual state. Even what Fraenkel labels as the ‘prerogative state’ was not devoid of law. The concentration camps and the extermination camps were organised and administered by legal means, albeit with huge gaps between law in books and the law in action.6 Lawyers and judges were a professional body besides the military, which played a significant role in the rise and operation of these regimes.7 An important trait, in addition to the duality of the state, was the instrumentalisation of law. Law was used as an instrument to transform society, to protect the people, as defined by Nazi or fascist ideology, and to destroy its enemies. Robert Barros in a study of judicial failure in Argentina and Chile distinguishes between the following four different forms of state repression and their ­relationship with law:8 1. Extra-judicial repression in the form of punitive acts inflicted by state agents without any prior authority or adherence to judicial or administrative formalities. 2. Administrative repression, which includes detentions and other coercive measures authorised by the state without any prior review or sentence by the courts. 3. Summary or quasi-judicial repression which involves some sort of judicial proceeding, but which departs from normal rule of law standards. 4. Legal repression that involves political repression but proceeds via regular judicial mechanisms that afford full protection from arbitrariness. The same pattern can be seen in the use of legal institutions by the Nazis. In the first two ­categories, the courts are circumvented, the last two involve judges and courts in 4 See L Gruchman, ‘Nacht und Nebel Justiz: Die Mitwirkung Deutscher Strafgerichte an der Bekämpfung des Widerstandes in den besetzten westeuropäischen Ländern 1942–1944’ (1991) Vierteljahrshefte für Zeitgeschichte 379, 393. 5 Fraenkel (n 3) 38. 6 ‘Law’ in these cases is a matter of definition and legal theory, see the contribution by David Fraser in this book; and K Rundle, ‘The Impossibility of an Exterminatory Legality: Law and the Holocaust’ (2009) 59 University of Toronto Law Journal 65. 7 See S Skinner, ‘Conclusion: Repression and Legality’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015) 192. 8 R Barros, ‘Courts out of Context: Authoritarian Sources of Judicial Failure in Chile (1973–1990) and A ­ rgentina (1976–1983)’ in T Ginsburg and T Moustafa (eds), Rule By Law: The Politics of Courts in Authoritarian Regimes (Cambridge, Cambridge University Press, 2008) 167–68.

190  Hans Petter Graver ­ ifferent ways. However, extra-judicial oppression and the use of administrative authority d also involve the courts in the sense that they have a duty to uphold the legality of the actions of state bodies. The Nazis sought to legitimise their extra-legal atrocities by giving them a formal legal basis, at least by formally removing actions of the SS from the jurisdiction of the courts. For the most, this was accepted by the judiciary.9 A consequence of the commitment to law was that members of the legal profession continued their work, but under greatly altered conditions. The rule of law as defined in Nazi and fascist ideology was not the rule of law of the liberal state. Core values of the liberal conception of the rule of law, such as the rulers being bound by law, that all are equal under the law and respect for the integrity of the individual, were undermined or even abolished. One element of the rule of law as we know it, that the Nazis respected, at least in Germany, and to a significant extent in the occupied countries of Western Europe, was judicial independence.10 This means that the judges were not coerced to participate in oppression. They contributed by fulfilling their judicial functions ‘as normal’. The way judges and courts react to support authoritarian rule may also be divided into four main types: one involves clearly departing from the law and the legal role, and the other three involve remaining ostensibly within the law. The first type consists of outright departure from the law to accommodate the needs of the regime. Facts or rules are distorted, overlooked or construed to apply sanctions illegally to opponents of the regime. Such rulings may be the result of pressure on the judge by interference from the executive or other organs of the state, or of an identification of the judge with the interests of the state in oppressing political opposition. In the extreme, there are mock trials in political cases where prosecutors, defenders and judges act out a script that has been written in advance, and where political or administrative leaders have decided who to charge, what to convict them for and how to punish them before a trial is held.11 The second type is the acceptance of the legality of authoritarian measures and the lack of opposition to measures that are formally legal, but that are nevertheless clearly in breach of basic rule of law principles, thus accepting the creation of a ‘dual state’. A major effect is that the police and security forces can terrorise the population with impunity and that victims are deprived of any access to justice. The main criticism of the judiciary by the Truth and Reconciliation Commissions of both South Africa and Chile was their lack of action against internment of persons by the security forces without access to justice.12 The third type of support by courts for authoritarian rule is the unquestioning application of any measure dressed up in a legal form. The most notable examples of this can be found in the interpretation and application of anti-Jewish legislation by the French and Italian courts. ‘The interpretive community’, writes Weisberg, ‘took up that work, made it its own, and on every level created an indigenous system of rationalized persecution’.13

9 See HP Graver, Judges Against Justice: On Judges When the Rule of Law is Under Attack (Berlin, Springer, 2015) 47–48. 10 See HP Graver, ‘Why Adolf Hitler Spared the Judges: Judicial Opposition against the Nazi State’ (2018) 19 German Law Journal 845. 11 See for a detailed description of the political trials held in Czechoslovakia in the 1950s, J Pelikan (ed), The Czechoslovak Political Trials, 1950–1954 (Stanford, CA, Stanford University Press 1971) 137–40. 12 See Graver, Judges Against Justice (n 9) 21–22. 13 RH Weisberg, Vichy Law and the Holocaust in France (Amsterdam, Harwood Academic Publisher 1996) 48.

National Socialism and the Law in Norway  191 This does not mean that the courts were wholly unsympathetic to claims raised against the law by Jewish claimants. They tended, on the contrary, to be lenient to the few who went to court to claim relief from anti-Semitic laws. Nevertheless, by the simple fact of applying the laws, they validated them and thus participated in the general respect for, and execution of, Vichy laws.14 The fourth type of support by courts is the independent recreation of the existing body of law to accommodate the aims and interests of the authoritarian regime. The German courts’ reinterpretation of the German Civil Code to deprive Jews of their status as legal subjects and holders of rights is illustrative of this.15 The judges ‘interpreted enacted law liberally when liberal interpretation furthered Nazi ideology, and strictly when strict interpretation furthered it’.16 Apart from distorting the law, the second, third and fourth ways of accommodating the regime indicated above are all normal parts of regular judging. Judges do not have to change their method or approach to law to support authoritarian policies. Accepting the authority of the legislator, applying legal techniques to sort out the fine details, and interpreting law in light of changed social and political circumstances are all part of a normal legal repertoire. Yet judges seem to give up any thought of independent judicial review under certain conditions. Perhaps what develops is what Michal Bobek describes as some form of mental dependency of judges on the hierarchy within the judiciary, and on legislative and executive authorities, leading to a bureaucratic style of judging.17 This can be a result of extreme situations such as in the Nazi and fascist dictatorships in the twentieth century, or of legacies of the past such as in post-communist states in the twenty-first century. In occupied countries, state institutions are under direct foreign rule. The authority of the occupier rests directly on military supremacy and force. Yet even under these conditions there are aspects of legality, drawn up under the international law of war. International law declares that the occupier should respect the laws and the institutions of the occupied country as far as possible, and maintain law and order in the occupied territories.18 This means that the legal situation in an occupied country is a complex mix between the law of the country at the time it was occupied, the law of the occupying country, international law and measures passed by authorities established by the occupier in the occupied territories. In situations where there is a government in exile, as was the case in Norway, we also have the measures passed by the exiled government for the occupied country. In the following we shall mainly be engaged with Nazi law, that is German law and law passed by the ­Norwegian authorities established by the German authorities in Norway, mainly by the Nasjonal Samling. 14 V Grosswald Curran, ‘The Legalization of Racism in a Constitutional State: Democracy’s Suicide in Vichy France’ (1998–99) 50 Hastings Law Journal 1, 32–33. 15 The most thorough study of this is still B Rüthers, Die unbegrenzte Auslegung: Zum Wandel der ­Privatrechtsordnung im Nationalsozialismus (Tübingen, Mohr Siebeck, 2012; 1st edn 1968) 7. 16 V Grosswald Curran, ‘Law’s Past and Europe’s Future’ (2005) 6 German Law Journal 2005 483, 511. 17 M Bobek, ‘The Fortress of Judicial Independence and the Mental Transitions of the Central European ­Judiciaries’ (2008) 14 European Public Law 99, 108. 18 Convention Respecting the Laws and Customs of War on Land and its annex, Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (The Hague Rules) Art 43: ‘The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country’.

192  Hans Petter Graver

The Legal Ideology of the National Socialist Party The Nasjonal Samling was a small party without representation in Parliament, but was placed in control of the civil administration, albeit under German arms and supervision. It had an anti-democratic, revolutionary platform, which it now sought to impose on the country. Popular support for the Party was negligible, and in the summer of 1940 its membership was less than 4,000. In the national elections in 1933 and 1936 it had obtained approximately 27,000 votes (two-and-a-quarter per cent of the total). Its membership rose rapidly after the German occupation, and approximately 60,000 persons, with a peak of 43,000 at one time, were members of the Party during these five years.19 Most of the population generally regarded the party and its members as collaborators and traitors, and therefore met them with resistance and opposition in various forms. Much of the resistance during the occupation was in fact directed against the Nasjonal Samling and its measures of Nazification, and not against the German occupying forces. This resistance was illegal, and an important part of the work of the police consisted in protecting Party members from harassment and attacks, many of these symbolic in form, like the wearing of paper clips in coat lapels and the wearing of red woollen hats during winter. Nasjonal Samling did not formally break with the existing constitution but claimed that its rule was in conformity with the original spirit of the Constitution. The Constitution made no mention of the political parties or the parliamentary system of government and, according to its original provision, the Prime Minister and the Cabinet were appointed by the King. Nasjonal Samling authors claimed that this showed that the Constitution originally incorporated the leadership principle. The new state was a law-state (Rechtsstaat) based on National Socialism. In defining itself in this way, the Nasjonal Samling regime fell into the pattern of other authoritarian regimes of the time by using law and judicial procedures to exercise their power.20 The old regime had outlived itself and proven the failure of the liberal state, parliamentarism and democracy. The new state therefore had to be created on a new basis.21 This new basis was the community of the Norwegian people, not the individual. The community of the Norwegian people was based in the ‘blood and earth of our tribe’.22 Consequently, the law could not protect the individual, but the community, and the good of the individual must yield to the good of the community. Individual rights were not inalienable and were conferred on the individual, not for her sake, but for the good of the community. In this, the Nasjonal Samling legal theory mirrors the German Nazi constitutional legal theory, where the concept of community was employed systematically to abolish social contradictions from the language of the law.23 Although the new state saw itself as a revolutionary breach with the old regime, there were elements of continuity. The Constitution as such was maintained in force as far as it had not been expressly repealed or modified by new legislation. The power to amend 19 See J Andenæs, M Skodvin and O Riste, Norway and the Second World War (Oslo, Aschehoug, 1966) 71. 20 See S Skinner, ‘Introduction’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015) 5. 21 S Riisnæs, Den nye rettsstat på nasjonalsosialistisk grunn (Oslo, Nasjonal Samlings Rikstrykkeri, 1941). 22 ibid 5. 23 See M Stolleis, The Law under the Swastika: Studies on Legal History in Nazi Germany (Chicago, IL, University of Chicago Press, 1998) 82.

National Socialism and the Law in Norway  193 the Constitution was endowed on the Minister-President. Most laws were left in force, but reforms were made particularly in the field of public law, where the governance structure was changed to accommodate the leading role of the party. Legal scholars emphasised that there were social elements in the law also under the previous regimes, and antitrust legislation and intellectual property legislation were portrayed as examples.24 Also the ideas of racial hygiene and new legislative measures in this field could build on established legal rules on sterilisation of criminals and the mentally deprived. However, law should no longer be subordinated to the liberalism of the previous era, and private law should not be dictated by market forces. Crimes were seen, in accordance with purported old Germanic law, as a breach of loyalty towards the tribe, and the criminal had thus placed himself outside the community. In the fight against criminals, the principle of legality of the liberal criminal law must not be allowed to develop into a criminals’ charter.25 This did not mean that the individual was without rights in the legal order, but these rights were conferred upon the individual as a valuable part of the community, so the rights were in reality protecting the community and not the individual as such. The purpose of the criminal law was to protect the people and the individual against violations of their rights, with acts against the community being considered to be particularly serious. Attention was shifted from the crime to the criminal as a person, and punishment was deemed to be intended to deter and socialise the criminal. Where this was impossible, internment was the only alternative, ‘to free society from such a person’.26 The national-socialist legal writings stressed the independence of the judiciary. Judicial independence was seen not as a child of the French Revolution and the Enlightenment, but as an entrenched principle in old Germanic law. The courts should not, however, meddle in the affairs of the state. Judicial review was considered to be a child of liberalism and its false portrayal of a conflict of interest between the individual and the state. The individual needed no protection from the state, and the courts should thus not review state actions. The judge nevertheless should exercise his function independently, without instructions or orders on how to decide the individual case. Independent judges were in the interests of the community and the people. The judge, as well as the man in the street, should read the purpose of the law from its wording, and develop this purpose in accordance with the spirit necessary to accommodate the vital needs and attitudes of the people.27

Statutory Measures of the Nazi Authorities The administration of justice was under the sphere of influence of the Ministry of Justice. The post as minister of justice was given to Sverre Riisnæs, a young and successful state prosecutor, who joined the Nasjonal Samling in June 1940. Riisnæs showed himself as a hard-working and ideologically minded national socialist. 24 S Østrem, Rettskildenes teori og forhold til det praktiske rettsliv I Rettskildenes teori (Oslo, SSSS Trykk, Skrivemaskinstua Oslo, 1942) xx. 25 ibid 51. 26 Riisnæs (n 21) 12. 27 A Dale [author not stated], Forelesninger i Rettslære (Oslo, SSSS Trykk, Skrivemaskinstua Oslo, 1944) 3.

194  Hans Petter Graver One of the first measures of the newly established Nasjonal Samling Minister of Justice was an attempt to control the composition of the courts. To this purpose several decrees were enacted. The term for the appointment of lay members of the courts and jury members was due to expire by the end of 1940. The Minister issued a decree whereby he gave himself the power to extend the terms on an individual basis, and also to appoint new persons to the list of members. The administration also issued a decree lowering the retirement age for civil servants, including judges, from 70 to 65. The decree empowered the Minister to extend the age of retirement of civil servants, including judges, beyond 65 on an individual basis. These rules gave the Minister the possibility to influence the composition of the courts and to secure judges who were loyal to the regime. The decrees led to a conflict with the Supreme Court, which regarded them as attacks on the independence of the judiciary. The judges wrote a letter in which they declared that the decrees exceeded what the occupier was entitled to do under international law and that they therefore must be regarded as being without legal substance. At this point it was clear that there was no independent legal basis for the orders issued by the commissioners, and that they therefore must be regarded as taking their legality from the German powers. The extent of these, and the right of Norwegian national courts to decide on this issue, was the core of the conflict. The Court also declared that it regarded itself competent to exercise judicial review under Norwegian law, and that this also extended to measures issued by the occupying authorities under international law. This resulted in a sharp letter from the German Reichskommissar, in which he stated that national Norwegian courts were in no position to review the legality of measures taken under the order of the occupying authorities. The Minister refused to revoke the decrees. As a result of this the Supreme Court justices collectively resigned their offices on 12 December 1940.28 Riisnæs recruited new justices for the Court among judges, lawyers and civil servants sympathetic to the regime, and they were appointed with the authority of the Reichskommissar. This court functioned as the Supreme Court for the duration of the occupation. The next measure was the decree of 8 November establishing the People’s Court (Volksgerichtshof). This decree of the Minister of Justice was based on a decree by the ­Reichskommissar of 25 October, ordering that a special court would be established to deal with offences against the decrees prohibiting opposition and political activity. The People’s Court was composed of three judges and in most cases two lay members. In addition to dealing with offences against the two decrees of the Reichskommissar, the Court was also given jurisdiction in cases of offences against the Norwegian Criminal Code, at the discretion of the Attorney General, based on whether the offence was an attack on ‘the state or the Norwegian people’.29 In general, the Code of Criminal Procedure applied also to cases before the People’s Court, albeit with important modifications.30 One important modification was that there was no appeal against rulings by the Court, and another concerned the rules on remand 28 An account of this in English that compares the situations in the Netherlands, Belgium and Norway is given by D Venema, ‘The Judge, the Occupier, his Laws, and their Validity: Judicial Review by the Supreme Courts of Occupied Belgium, Norway and the Netherlands 1940–1945 in the Context of their Professional Conduct and the Consequences for their Public Image’ in M de Koster and D Heirbaut (eds), Justice in Wartime and Revolutions, Europe, 1795–1950 (Brussels, Algemeen Rijksarchief, 2012). 29 Regulation issued by the Ministry of Justice, 8 November 1940 § 1. 30 ibid § 3.

National Socialism and the Law in Norway  195 in custody. Under Norwegian criminal procedure, a court order was necessary in order to hold an accused in custody pending trial. By a decree issued by the Minister of Police on 24 January 1941 this procedure was changed for cases brought before the People’s Court. In these cases, the ordinary conditions for internment did not apply, and the power to decide on imprisonment was given to the police. Later, on 24 October 1942, the police were empowered to employ internment as a ‘security measure’ against a person suspected of offences, and increasingly this measure was used instead of bringing the accused to trial. This formalised the ‘dual state’ in Norway, with the result that most of the oppression of political opposition to the regime was undertaken by special security forces within the police, outside the jurisdiction of the courts.31 On 9 August 1943 a police inspector refused to order two of his subordinates to arrest two women who had evaded the compulsory work-duty. The Germans were enraged by this breach of discipline within the police, and demanded that the inspector, Eilifsen, was brought to stand trial and shot for his insubordination. Norwegian law at that time did not have capital punishment for such offences except for military personnel, and the existing courts could not be trusted to convict Eilifsen in contradiction of established legal principles. Quisling therefore enacted a law that retroactively brought the police force under military law during time of war and established special courts to try such cases under summary proceedings. A trial was held in which Eilifsen was convicted and shot the same night. Later, by a law of 11 May 1944, the system of special courts was extended, and special courts for members of the police, members of the Norwegian Waffen-SS and of the Party Militia were established. The special court for members of the police was also given jurisdiction to try cases against civilians and renamed ‘the general special court’. Such courts were active under declared and undeclared situations of emergency, and in all passed 24 death sentences.

Consequences for the Judiciary As in the other countries that they occupied, the German authorities established military courts to deal with instances of civil resistance against its rule.32 Contrary to the situation in Denmark where the national authorities strived to keep jurisdiction in the national courts in cases where their citizens were involved, there were no such efforts from the Norwegian authorities.33 When the Germans ruled that their military courts, and later an SS court, should deal with offences against their regulations, these courts consequently dealt with all cases against civilians accused of political offences and acts of resistance against the German occupiers.

31 See Fraenkel (n 3). 32 The history of an important part of the German judiciary is presented by R Bohn in his seminal work on the German Reichskommissariat in Norway: R Bohn, Reichskommissariat Norwegen: ‘Nationalsozialistische ­Neuordnung’ und Kriegswirtschaft (Munich, Oldenburg Wissenschaftsverlag, 2000) 91–114. 33 See Graver, Judges Against Justice (n 9) 56–57. The Belgian courts, on the other hand, refused to apply the ­regulations of the German military administration, and violations of these were therefore tried by German courts, see JNME Michielsen, The ‘Nazification’ and ‘Denazification’ of the Courts in Belgium, Luxembourg and the ­Netherlands (Maastricht, University of Maastricht Press, 2004) 36.

196  Hans Petter Graver The military courts only dealt with cases in which the offences were directed against German troops or affected Germany’s military interests. Many acts of resistance were directed not against the Germans, but against the Nasjonal Samling and Norwegian collaborators. These were regarded by the Germans as of a political nature with little military consequence, and such cases should normally have been dealt with in national courts. The Reichskommissar nevertheless took jurisdiction over these cases as well. In his decrees prohibiting political organisations and activities in favour of the King, he decreed the establishment of a special court to handle offences. The power to establish such a court was delegated to the Nasjonal Samling, and a people’s court was subsequently established by the Nasjonal Samling government. The Nasjonal Samling regime also established a price control agency, a special price control police and special courts to deal with rationing and price measures. The courts could impose fines and prison sentences of up to six years for violations of the measures. Due to the circumstances of war, rationing and price control were important economic regulations, and these authorities dealt with a vast number of cases. The attempts by the Nasjonal Samling to Nazify the price control institutions were blocked by the Germans, however, who saw this as a threat to their interest in maintaining economic stability.34 The German interests here coincided with the interests of the Norwegian administration, as well as the resistance and the government-in-exile in London, both of which accepted the legitimacy of the price control institutions. The establishment of these institutions was seen by them as the work of loyal civil servants within the administration, who withstood pressure from the Nasjonal Samling to develop an economic policy to serve their political aims. The personnel serving in the price police and the price courts were not accused of treason or collaboration after the war, and the institutions were even maintained with some reforms for decades in post-war Norway.35 The consequence of the development of special courts to deal with political cases, and cases involving resistance, was that the ordinary courts were mostly not involved in the enforcement of the political and wartime legislation. With the exception of a very small number of cases from 1940 before the establishment of the Nasjonal Samling judicial system, no cases of political resistance were brought before ordinary Norwegian judges. However, this did not stop the Nasjonal Samling from making attempts to Nazify the judiciary. The judges were, mostly unsuccessfully, encouraged to join the Party, with only eight actually doing so. The Party also attempted to take control over the judges’ association. This was part of a general measure to bring the trade unions and trade associations under Nasjonal Samling control. The attempt resulted in the disbanding of many of these organisations and the arrest of a large number of the Norwegian elite but did not succeed in establishing working Nasjonal Samling organisations. As a result of this struggle, the chairman of the judges’ association was removed from his position as a district judge. In all, the Nazi administration removed 14 judges from their positions because they were politically unreliable. The Party had the opportunity to appoint 65 judges, most of whom 34 See O Kolsrud, En splintered stat Regjeringskontorene 1940–1945 (Oslo, Universitetsforlaget, 2004) 209. 35 See on the decision to maintain the institutions, Innstilling fra utvalget til å komme til forslag til lov om håndhevelsen av pris- og rasjoneringsbestemmelsene (Oslo, 1947) 7.

National Socialism and the Law in Norway  197 were Party members. Probably as many as 50 judges and assistant judges were members of the Party during the occupation, or about 20 per cent. This was significantly lower than within the police and prosecution authorities, where membership among the lawyers was as high as 60 per cent.

National Socialist Law in Action As described above, cases involving attacks on the political regime and the interests of the state were tried, in the serious cases, by the German courts, and in other cases by the ­Norwegian People’s court and the special courts. The ordinary courts saw little of the political cases. On the other hand, ordinary criminal cases, and civil cases were tried in the ordinary Norwegian courts. In some cases, this involved enforcing new laws enacted by the Nasjonal Samling regime due to its ideological motives, such as landlord and tenant law and compulsory labour service. These laws were applied and enforced by the courts in the same way as ordinary legislation, without the legitimacy of the law-giving authority of the regime being questioned. In this, the regular courts of Norway fell into the general picture of courts under fascist regimes of application of their law irrespective of its origins and impact.36 The ordinary courts also participated in a general increase of the level of punishment for various offences. As part of the measures to deal with political crimes the Nasjonal Samling established the People’s Court, which was set up to give legal protection to the people as such, in contrast with the ordinary courts that were established to give protection to the ­individual.37 The Court was seen as an important part of the legal construction to combat resistance against the new state, and would have its permanent place in the National Socialist state to come. Its inauguration was on 12 February 1941, and the expectation of it was high. It was from the outset clear that the People’s Court would deal only with the less serious cases that the Germans trusted to Norwegian jurisdiction. There were no efforts by the Norwegian authorities against the German occupiers to secure jurisdiction over all or most cases against Norwegian citizens. Most of the cases tried by the Court were cases of minor political demonstrations of opposition and harassment of members of the Nasjonal Samling. The cases with the harshest punishments were cases of printing and distribution of illegal newsletters, where prison sentences in some cases ran up to four years’ imprisonment.38 A turning point in the development of the Court as an important institution for the National Socialist state came after the shooting of an officer of the border police in August 1942 during an attempt to lead Jewish refugees over the border to Sweden.39 This incident led to the arrest and internment of all male Jews under the pretext that they were a 36 See Skinner, ‘Conclusion’ (n 7) 192. 37 Riisnæs (n 21) 61. 38 Folkedomstolens dommer 1941–1945, document on file in the case against president Pedersen, Oslo politikammer, case no 1947: Olav Bjarne Aalvik Pedersen, Riksarkivet Norway, Landssvikarkivet. 39 See P Madsen, ‘Folkedomstolen – en “skyggedomstol”’ in P Madsen and JH Marthinsen (eds), Festskrift til Helge Paulsen 30. January 1996 (Oslo, Arkivarforeningen, 1966).

198  Hans Petter Graver danger to the state and the people. After the arrest of the border pilot who had fired the shot, there was a general demand by the Germans that he be tried and executed by the Nasjonal Samling authorities. The Attorney General approached the president of the People’s Court to get assurance of his conviction and sentence in advance. The president refused to give such assurance, and stated to the contrary, that based on the files of the case, he had difficulty in seeing the killing as premeditated, which was a condition for applying the death penalty for murder. The Minister of Justice was enraged, but the president of the Court refused to give in. As a consequence, the accused was later tried by the Germans and executed according to German law. This episode led to a lack of confidence in the People’s Court by the Nasjonal Samling authorities. The Court was also generally regarded as too moderate in its punishments, and the police gradually stopped sending cases, preferring to use their power to imprison suspects as a security measure. The Court altogether handled 111 cases against 150  accused.40 Of these, 76 cases were dealt with in 1941, 27 in 1942, five in 1943 and three in 1944. About 30 per cent of the cases resulted in acquittals. Initially, the Court heard only minor cases, as the more serious cases were dealt with by the German courts. This picture prevailed as the Court failed to live up to the authorities’ expectations in the border police case. Generally, its sentences were severe compared with the Norwegian courts before the war, but not unduly so. The judges of the People’s Court were all chosen for their National Socialist sympathies and party membership. They regarded their task as a vocation to promote the National Socialist state. It is therefore remarkable that they nevertheless upheld the ideals of proportionality, rule of law and judicial independence the way they did. There are also other examples of cases where the authorities attempted to pressure the Court to give assurance of the outcome of a case in advance, but where the Court refused. The Court did function as a tribunal for political justice, but this was because of the political nature of the laws it was set up to apply. As the accused was acquitted in 20 per cent of the cases, the outcome of the cases was in no way determined in advance. The special courts have a different history. The first special court to deal with subversive actions was established to deal with the case of Eilifsen, the police inspector who refused to arrest two women for evading compulsory work duty. The Court was composed of three judges; a justice from the Supreme Court and two police chiefs, the chief of the ‘Order Police’ (ordenspolitiet) and the chief of the ‘State Police’, the Norwegian equivalent to the Gestapo. After hearing the evidence, the Court returned a verdict of a prison sentence for Eilifsen. The chief of the state police dissented and voted for the death penalty. When the ruling was brought to the Minister of Justice for confirmation, he refused, and threatened the two in majority that they themselves would be shot if Eilifsen was not sentenced to death. He claimed that the Germans would execute Eilifsen if the Norwegians did not do it, and that this also would have grave consequences for the police. The other police judge changed his vote, and Eilifsen was executed the same night.

40 See the figures in the Government White Paper, Stortingsmelding nr 17 (1962–63) 123. More detailed figures are found in Folkedomstolens dommer 1941–1945 (n 38).

National Socialism and the Law in Norway  199 Special courts were used for cases against members of the police, Waffen-SS and the Party militia, as well as against civilians in special cases. Such courts were established after the bombing of Bergen and Oslo in order to deal with people taking advantage of the war, who were found thieving in the ruins. Special courts were also established in the emergency situation after the liquidation of the chief of the State Police Karl A Marthinsen on 8 February 1945 by members of the resistance. Following this event, the Germans decided to hold summary trials against known members of the resistance. They also demanded that such trials be held by the Norwegian authorities. Two separate Norwegian trials were set up and trials were held against 13 people who were all given death sentences and executed.41 Altogether, the special courts dealt with approximately 25 cases against 50 accused.42 Of these, 16 were cases against members of the resistance, the rest were ‘ordinary’ criminal cases. All 16 of the resistance members were sentenced to death and executed. In the criminal cases, four accused were sentenced to death, three were executed, 23 sent to prison and one defendant was acquitted. In total 19 persons were executed after proceedings in special courts.43 At least 12 different persons served as judges or prosecutors in the special courts. All the cases were major cases involving murder, theft, looting, black market offences and armed resistance against the occupying authorities. Nineteen death sentences were pronounced. For the 16 accused of resistance activities the conviction and death sentence rate was 100 per cent. Taking the other cases into account, the death sentence rate of the courts was 50 per cent, making these courts harsher even than the People’s Court in Berlin with its rate of capital punishment of between 46 per cent and 49 per cent in the years between 1942 and 1949.44 The SS Court in Norway had a death rate of 74 per cent in its political cases, but this number must be seen in relation to the Nacht und Nebel order of 12 December 1941 according to which courts in the occupying countries were only permitted to have jurisdiction in cases where the death sentence was demanded by the prosecution.45 So the rate of 74 per cent indicates that the Court ruled against the prosecution in 26 per cent of its cases against members of the Norwegian resistance. The records show that the 16 political cases were all show trials, where the outcome was determined beforehand, and the judges coerced to perform the trials by orders of the party leaders. In the case against Eilifsen, the ministers Riisnæs (Minister of Justice) and Lie (Minister of the Police) threatened the two judges who initially voted for a prison sentence that they would themselves be shot if they refused to issue the

41 Compilation of cases on file in the case against Georg Daniel de Fine von Krogh Hasle, Oslo politikammer, case no 3664, Riksarkivet Norway, Landssvikarkivet. 42 There are no complete files, and I have had to reconstruct the number of cases based on the trials against participants in such courts after the war. The total number is therefore uncertain, though it is probably complete regarding capital cases. 43 Nøkleby (n 2) 195. 44 RD Rachlin, ‘Roland Freisler and the Volksgerichtshof ’ in AE Steinweis and RD Rachlin (eds), The Law in Nazi Germany: Ideology, Opportunism, and the Perversion of Justice (New York, Berghahn Books, 2013) 73. 45 The head of the chancellery of the court, Kurt Silbermann, gives an account of the number of cases against Norwegians in K Silbermann, ‘Bericht über Organisation, Aufgaben und Tätigkeit des SS-und Polizeigerichts’, on file in the war crime case against the judges Latza, Regis and Kehr, L-sak Oslo politikammer, case no 4028–2030: Latza, Regis, Kehr mfl, Riksarkivet Norway, Landssvikarkivet.

200  Hans Petter Graver death penalty.46 The judges who tried the two cases after the elimination of police chief Marthinsen did this under force. Riisnæs and Lie were present during one of the hearings, wearing firearms and under heavy influence of alcohol.47 The judges knew that they were taking part in a masquerade, and used this as an argument of defence in the trials against them after the occupation. This only made matters worse for them, and they were found guilty of murder in the subsequent trials after the war. Special courts were part of the judicial oppression of both Nazi Germany and fascist states. The main part of the oppression was undertaken outside the scope of the judiciary by security forces and the political police. However, a substantial number of cases concerning political resistance were dealt with by the special courts. Despite their political nature, cases before special courts in Germany were regularly not mere show trials, and the courts had independent powers to determine the guilt and the punishment of the defendants based on the facts presented and the applicable legal rules. Even in the highly politicised trials in Berlin against the July 1944 conspirators, it was an overriding concern of the People’s Court that the law be followed.48 The German judges retained their independence from direct intervention in their handling of cases even after the famous speech of Adolf Hitler in the Reichstag on 26 April 1942, in which he attacked the judges.49 In France, the judicial community were free to protest against measures enacted by the regime.50 In Italy, there was until a relatively late date little pressure on the judges to conform to a particular legal philosophy or to decide cases in a particular way.51 This also applied to the Special Tribunal of Mussolini’s Italy which functioned as a sort of ‘control room’ of the Fascist police and judicial power. Twenty per cent of defendants there were not sentenced.52 The special courts of the Nasjonal Samling were therefore a deviation from the general picture in that they let themselves be used as stages for show trials. Otto Kirchheimer points out that the authority of the judge as a legitimiser rests on the fact that the community is prepared to recognise the judge’s capacity to lend legitimacy or withdraw it from an individual’s act.53 The special courts of Norway had no such capacity to withdraw legitimacy from the claim of the political leadership, in the cases that were brought before them against members of the resistance. The fact that special courts in Norway were used to run show trials marks Norway out as something of a special case. Nazi and fascist rule was hostile

46 Statement by Egil Reichborn Kjennerud on file in the case against Egil Reichborn Kjennerud, Oslo politikammer, case no 4223, Riksarkivet Norway, Landssvikarkivet. 47 Statement by Rolf Holm on file in the case against Reinholdt Gram Breien, Oslo politikammer, dom no 3974, Riksarkivet Norway, Landssvikarkivet. 48 See HW Koch, In the Name of the Volk: Political Justice in Hitler’s Germany (London, IB Tauris, 1989) 213. 49 R Angermund, Deutsche Richterschaft 1919–1945 (Frankfurt am Main, Fischer, 1990) 253–59. 50 See Weisberg (n 13) 49–51. 51 MA Livingston, ‘Criminal Law, Racial Law, Fascist Law: Was the Fascist Era Really a “Parenthesis” for the Italian Legal System?’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015) 88. 52 L Lacchè, ‘The Shadow of the Law: the Special Tribunal for the Defence of the State between Justice and ­Politics in the Italian Fascist Period’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015) 26. 53 O Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton, NJ, Princeton ­University Press, 1961) 178.

National Socialism and the Law in Norway  201 towards the judiciary, but for the most part stopped short of coercing judges in individual cases. Not so in Norway.

The Measures Against the Jews Contrary to established beliefs, racial and anti-Jewish measures were not confined to the German Nazis. Such measures were also part of the policy enacted by fascist authorities without any direct coercion from the Germans. They were furthermore to a large part adopted by legal institutions in accordance with the law. Detailed studies have shown how the law and legal institutions of France and Italy were employed in transforming the law into an instrument of racial persecution.54 In both cases, the anti-Jewish legislation was adopted autonomously by the national fascist authorities, and further developed through legal interpretation by administrative authorities and the courts. In some cases, even the authorities and the courts in occupied countries applied anti-Jewish measures enacted not by national authorities, but imposed as German measures by the occupying authorities. For example, the Netherlands courts applied German measures depriving Jews of legal personality and removing Jews from their businesses, without questioning the legality or acceptability of these measures.55 Similarly, in the Channel Islands, the local authorities cooperated in the enforcement of the German measures against the Jews, often taking the initiative and offering their own, over-inclusive definition of Jewishness.56 The small Jewish population in 1940 in Norway comprised about 2,100 persons, many of whom had entered as refugees from Germany in the 1930s. The German authorities issued the first measures against Jews in Norway in May 1940, when the police were ordered to confiscate radios owned by them. The order was effectuated by the Norwegian police.57 There were discussions among police leaders and the Norwegian authorities, but it was decided that the best course of action was to obey the German order. At the same time, the German occupiers ordered the Jewish congregations of Oslo and Trondheim, the two cities with the largest Jewish populations in Norway, to provide the Germans with lists of Jews together with their names, dates of birth, places of work and addresses. The orders were communicated by the Norwegian police.58 Aside from these measures, there were few examples of provisions or measures against Jews until the spring of 1941. There were some arrests on individual grounds, and measures were taken against some individual Jewish enterprises by the Germans. Bruland estimates that 17 Jews were deported by the Germans from Norway before

54 For France see Weisberg (n 13); and for Italy see MA Livingston, The Fascists and the Jews of Italy (Cambridge, Cambridge University Press, 2014). 55 See Michielsen (n 33) 158–59. 56 See D Fraser, The Jews of the Channel Islands and the Rule of Law, 1940–1945 (Brighton, Sussex Academic Press, 2000) 215. 57 See B Bruland, Holocaust i Norge Registrering Deportasjon Tilintetgjørelse (Oslo, Dreyer 2017) 82. For a general overview in English of the treatment of the Norwegian Jews, see PO Johansen, ‘Norway and the Holocaust’ in H Takala and H Tham (eds), Crime and Control in Scandinavia during the Second World War (Oslo, Norwegian University Press, 1989). 58 Bruland (n 57) 91.

202  Hans Petter Graver the systematic deportations began in November 1942.59 There were also instances of attacks against Jewish establishments and property by gangs of members of the Nasjonal Samling.60 The Norwegian Nasjonal Samling authorities revoked the licences of some Jewish doctors and lawyers on the grounds that they were unfit to practise on political grounds.61 At the end of the year the policy against the Jews sharpened. This time the provisions were issued by the Norwegian authorities. On 2 October 1941, the Ministry issued an order to the county governors to register all property belonging to Jews.62 The order was passed on to the district courts where the registries were kept. Most judges dealt with the request in an orderly manner and gave their reply with the information sought. There were no instances of open protest or refusal from the judiciary, although there were some instances in which the court replied that it could not prioritise dealing with the request for reasons of lack of capacity. From some courts, there was no reply. The Minister of Police issued an order on 10 January 1942 that all Jews should have the letter ‘J’ stamped in their identity cards. At the same time, they were obliged to fill out a questionnaire giving information on their work or profession, property and business engagement. The order included a provisional definition of ‘Jew’, divided into three ­categories: full Jew, half Jew and quarter Jew. Half Jews belonging to a Jewish congregation were to be regarded as full Jews. According to Bruland, altogether 1,582 persons had their identity cards marked.63 This registration was of vital importance to the subsequent ­measures against the Jewish population. On 12 March Quisling enacted a revision of the Constitution and reinstated the old prohibition against Jews entering the Realm. Such a prohibition had been included in Article 2 of the 1814 Constitution, together with a prohibition against Jesuits, but was repealed in 1851. More legislation was to follow. An Act on the confiscation of Jewish property was issued on 26 October 1942.64 Further regulations to the act were issued a month later. These established a special tribunal to handle the liquidation of the estates. The management of the estates was given to hand-picked lawyers who were all sympathetic to the Nasjonal Samling. In this way, the management of confiscated property was kept outside the jurisdiction of the courts. The reason given for this was pragmatic: the bulk of cases would arise in the cities of Trondheim and Oslo with the largest Jewish communities, and the case load would by far exceed the capacity of the courts in these two cities. Apparently, the Nasjonal Samling authorities did not doubt the loyalty of the courts were they to be given the task of liquidating the Jewish estates, but nevertheless chose a different route. On 17 November, a law obligating all Jews to report regularly to the police about their whereabouts was passed. The Act codified the definition of Jew. This definition was based on the German blood-legislation from 1935.65 Any controversy over the categorisation of an individual was to be decided by the Interior Ministry, with a right to appeal to the Minister-President.

59 ibid

98. 159. 61 O Mendelsohn, Jødenes historie i Norge gjennom 300 år, vol 2 (Oslo, Universitetsforlaget, 1986) 46–47. 62 Bruland (n 57) 165. 63 ibid 198. 64 Law of 26 October 1942. 65 Bruland (n 57) 205. 60 ibid

National Socialism and the Law in Norway  203 Following the above-mentioned shooting of a border police guard during an attempt to guide Jewish refugees over the border to Sweden, the authorities carried out mass arrests of all male Jews on 16 October 1942. They were all interned according to provisions enacted the same day empowering the police to enact measures against any person suspected of ‘activities against the state’.66 Later, on 26 November there followed the arrests of women, children and hospitalised Jews, which resulted in the subsequent deportation to Germany on the same day of 529 individuals on the ship Donau. After four days, they were put onto a train which arrived at Auschwitz at 9pm on 1 December. A second mass deportation of 158 individuals was undertaken on 24 February 1943. In total, 776 persons of Jewish origin were deported from Norway, of whom only 38 survived.67 After the deportation in February  1943, Norway was ‘Judenfrei’ except for a few persons married to non-Jewish spouses. The rest of the Jewish population had made it over the border to neutral Sweden. As the deportations took place such a short time after the enactment of the special legislation against the Jews, the bureaucracy was not involved in deciding cases according to the legislation. Jewish estates, however, were liquidated according to the adopted regulation by the special tribunal. Despite these anti-Jewish measures and actions, the Jewish issue was not a central feature in the ideology and policy of the Nasjonal Samling. The Party had its share of individuals who were ferociously anti-Jewish, who publicly spread their views and solution to the ‘Jewish problem’. The Jews were, however, considered as ‘others’ by many also outside the Party. It is in this respect noteworthy that the Norwegian Bar Association did not find it worth mentioning the anti-Jewish measures, nor the deportation of the Jews, in its illegal newsletters reporting on legal developments to its members.68 Anti-Semitism was not a central feature of the writings of the Nasjonal Samling jurists, and Jewish cases were virtually non-existent in the administration and in the courts. The German SS Court in Trondheim tried a case in 1942, in which four Jewish defendants were given death sentences for the publication of illegal newspapers.69 The death penalty was not used in similar cases against non-Jews, so they were given much harsher punishments because of their origin. This is in line with the general practice of German courts in cases against Jews. The Norwegian Supreme Court, on the other hand, found that it was a mitigating circumstance that the defendant was Jewish, in a case where a shopkeeper had sold goods to German soldiers in breach of rationing provisions, because of the difficult situation he was in when the Germans demanded that he sold them the goods they required.70 The Nasjonal Samling Minister of Justice, Riisnæs was a pronounced a­ nti-Semite, but it is difficult to see traces of that in his legal writings. Consequently, even though the regime carried out anti-Semitic actions and readily cooperated with the occupiers in this regard, anti-Semitism did not appear to be a deep part of its ideology. Nevertheless, this provided an area in which willing collaboration could be provided, with no objection from the authorities. 66 ibid 242. 67 ibid 365. 68 The resistance activities of the Bar Association are described in H Bødtker, ‘Den norske Sakførerforening 1933–juni 1941’ in R Christophersen (ed), Den norske Sakførerforening 1933–1958 (Oslo, Den Norske ­Sakførerforening, 1958); and ET Poulsson, ‘Den Norske Sakførerforening juli 1941–mai 1945’ in R Christophersen (ed), Den norske Sakførerforening 1933–1958 (Oslo, Den Norske Sakførerforening, 1958). 69 Mendelsohn (n 61) 68. 70 NRT (Norwegian Court Reports) 1941, 18.

204  Hans Petter Graver

Conclusion This study of the law and the legal practices of the Norwegian National Socialists reveals the same key themes as studies of other fascist and Nazi regimes: the duality of form, the instrumentalisation of law, and the continuity between fascist law and what we regard as law in democratic, rule of law states.71 The legal form was maintained and developed, but operated in concordance with the prerogative state described by Ernst Fraenkel as the dual state. The legal institutions and the law were to a large extent taken over from the predecessor regime, without a high degree of continuity both in personnel and substantive legislation. Political cases, however, were dealt with by especially established institutions with a stronger commitment to National Socialist ideology. The judiciary and legal profession for the most part accepted going about their legal business in the usual way, despite the lack of legitimacy of the new legal measures, and despite the radical break with traditional legal values of the rule of law that the regime represented. To practise the law of the land, whether he or she personally approves of the result of its application, seems to be a stronger part of the judicial ideology than the recognition of inalienable rights and the rule of law.72 The experience of the judicial system in Norway during the Nazi reign shows examples of all four types of contribution of the judiciary to the instrumentalisation of law by authoritarian rulers: breaking the law in show trials; an acceptance of the legality of authoritarian measures; a lack of protest about, and acceptance of, a restriction of the courts’ jurisdiction; and an active use of legal techniques to reinterpret the law to accommodate the aims and interests of the authoritarian regime. Not only the judicial institutions established by the Nasjonal Samling, but also the ordinary courts were involved in this. The ordinary courts accepted the limits on their jurisdiction and did not launch effective protests against the powers allotted to the security police. After the protests by the Supreme Court, the other courts accepted the requirement to operate based on the new rules introduced by the Nasjonal Samling, and they applied subsequent legislation introduced by the regime. The creative reinterpretation of the law to transform it into national socialist law was left to national socialist writers. They on their part employed the same techniques and models that had been introduced under National Socialism into German law. The National Socialist Party of Norway was backed by the force of the Germans and met with widespread resistance in the population. In this way, its situation differed from other fascist parties in a ruling position during the twentieth century, where the Nazi and fascist rulers had the support of a majority of the population, at least in the initial phases. However, the Nasjonal Samling ideology was clearly fascist, portraying the same main traits as its European counterparts. It was nationalist, anti-democratic, anti-communist and anti-Jewish, and based on the idea of leadership from above representing the interests and will of the people as an ethnic and racial entity. Yet there were also clear elements of continuity in law and legal practices. In the fields outside clearly political issues, laws and legal institutions operated as before, without any significant change. The wartime situation made the situation for the Norwegian National Socialist Party special. The country was at war during its whole reign, and thus in a situation where even

71 See 72 See

Skinner, ‘Conclusion’ (n 7) 191. Graver, Judges Against Justice (n 9) 208–12.

National Socialism and the Law in Norway  205 liberal democracy turns to harsh measures to combat potential threats to national security and political unity. The measures it employed must be seen against this background. Nevertheless, the Norwegian experiences contribute to our knowledge about authoritarian regimes and the law in societies with highly developed legal institutions and a tradition of commitment to the values of the rule of law. Like its counterparts in Nazi Germany and the fascist states of Europe, the Nasjonal Samling sought to balance both totalitarian rule, involving brute repression of political opposition, with upholding the institution of an independent judiciary. Law was retained as an important instrument of governance, but the law was transformed to accommodate the values and ideals of National Socialism. This was the case particularly in the field of criminal law, which was to be transformed from an instrument with which to combat crime into an instrument to neutralise and eliminate criminals. In two respects the Norwegian experiences deviate from the general picture. The first of these is the resignation of the Norwegian Supreme Court over the attacks on judicial independence and the controversy over jurisdiction of the Court to review the legality of the measures of the German occupiers. The only other Western European country where judges also resisted the German occupiers was Belgium.73 The Belgian courts openly refused to apply regulations enacted by the military administration. They also refused to recognise the delegation of power to the Belgian secretaries general, who were heads of the Belgian administration, but recognised their measures when they were within the scope of Belgian law. The other point where the experiences in Norway differ from other countries of Western Europe is in the way that the judges of the special courts were used, and let themselves be used, as executors of decisions that had been taken in advance to murder political opponents. With results that – with the knowledge and consent of the judges – were prearranged, these trials therefore fell outside the scope of trials as understood even in the Nazi and fascist sense. In Germany, even Nazi judges regarded it as an ‘absurdity’ to tell a judge what to decide in a case under his jurisdiction.74 The Norwegian National Socialists crossed the line which other Nazi and fascist authorities seemed reluctant to cross: the line between applying ideological and social and psychological pressure on the judiciary as a collective and ordering individual judges to give rulings according to decisions taken in advance by political and administrative authorities.



73 Michielsen 74 See

(n 33) 32–33 and 50–55; and Venema (n 28). Graver, Judges Against Justice (n 9) 44.

206

10 The Repression of Lawyers After the Spanish Civil War: The Case of Valencia PASCUAL MARZAL AND ANICETO MASFERRER*

Introduction After defeating the Republic, the new Francoist regime had a clear and primary o ­ bjective: purging Spanish society of every ideological enemy. The members of the left-wing parties and trade unions, gathered in the so called Frente Popular (Popular Front), were the main targets of the regime’s repressive legislation, and the secret societies – particularly the ­freemasonry – soon joined them, together with the groups evolving from anarchism.1 The two principal legal measures that marked the start of the purge were approved before the end of the Civil War: the Law of Political Responsibilities of 9 February 1939 and the Law for the Purge of Civil Servants of 14 February 1939, to which subsequently the decisive Law for the Repression of Freemasonry and Communism of 1 March 1940 was added.2 ­Nevertheless, even though this stage of political filtering was significant, it was merely preliminary and was not enough for the Francoist authorities. The new state had to seize the moment to eliminate the legacy of the previous political order and shape new citizens who shared the moral, religious, as well as the deontological principles of National-Catholicism. In 1940, a lawyer wrote: National Spain wants ideal men. That’s why a purge of those performing any public or social ­function is being undertaken. Yet it is not enough to filter the individuals constituting a department or forming an institution, or exercising the same profession, one by one, particularly when the purge is limited to a single aspect, the political one. Even if the examination of conduct were to be extended to the morality of the subject, the institution, department or profession to which he

* This work has been undertaken in the context of the research project entitled ‘Las influencias extranjeras en la Codificación penal española: su concreto alcance en la Parte Especial de los Códigos decimonónicos’ (ref DER2016-78388-P), financed by the Spanish Ministerio de Economía y Competitividad. We wish to thank Stephen Skinner who has read drafts of this text. We greatly benefited from his comments and suggestions. Any remaining errors are entirely our own. 1 See, eg, P Rodríguez Cortés, RC Torres Fabra and MI Sicluna Lletget (eds), La represión franquista en Levante: la represión sobre Izquierda Republicana (Madrid, Eneida, 2012). 2 See, eg, M Álvaro Dueñas, Por ministerio de la ley y voluntad del Caudillo. La jurisdicción Especial de ­Responsabilidades Políticas (1939–1945) (Madrid, Centro de Estudios Políticos y Constitucionales, 2006); and G Portilla, La consagración del derecho penal de autor durante el franquismo: El Tribunal Especial para la represión de la ­masonería y el comunismo (Granada, Editorial Comares, 2010).

208  Pascual Marzal and Aniceto Masferrer or she belongs would not, simply because of it, be cleansed. It would be, at the most, an intrinsic purge and, therefore, insufficient.3

Consequently, the social function of the citizen, his role in the organisation of the institutions of the state, would be decisive for the repressive authorities in deciding whether to inspect, more or less carefully, his social and political behaviour. That is why civil servants were one of the main targets of this purge,4 especially primary and high school teachers and university lecturers.5 All administrative personnel of every rank – local, provincial or national – and especially judges and magistrates,6 would also be targets of the purge. Lastly, the different professional corporations, of architects, doctors and lawyers – the latter being the focus of this study – would also undergo a profound internal filtering.7 Generally, the Francoist repression was carried out at three levels: first, a criminal one, in which the military jurisdiction was used to establish the criminal responsibility to be attributed to the Republicans for their military participation during the war, as well as for their political and ideological actions during the conflict and even before its start; secondly, an economic repression in which, through pecuniary sanctions, such as seizure of property, the economic sum of that behaviour was materialised; and thirdly, a professional repression involving the attribution of responsibility by the governing boards of professional associations. The present study will focus on the purge of lawyers in their associations, and more specifically, in the Bar Association of Valencia,8 one of the biggest in Spain.9 In so doing it will seek to show that, with some exceptions, the general ideological tendencies of lawyers meant that many of them were complicit in, and not on the whole particularly harshly repressed by, the Francoist measures after the Civil War. With regard to sources, the content and relevance of the evidence left by the Franco regime’s repression is varied. Each repressive level has its specific sources. For example, summary consejo de guerra (equivalent to courts martial) trials were very brief procedures under military jurisdiction, with little evidence. Of these trials, the most important part was the final judgment summarising the charges against the accused and the penalty imposed. Economic repression was carried out by a special jurisdiction, at the top of which was the National Court of Political Responsibilities. Unfortunately, there is not much evidence about this Court, and the records of proceedings initiated in Valencian territory were destroyed. 3 F Merino Pérez, Depuración de la abogacía (Madrid, Gráfica Universal, 1940) 5. 4 J Cuesta (ed), La depuración de funcionarios bajo la dictadura franquista: 1936–1975 (Madrid, Fundación Largo Caballero, 2009). 5 See AE Recio and MJ Izquierdo García (eds), La revolución educativa en la Segunda República y la represión franquista (Valladolid, Ediciones Universidad de Valladolid, 2014); and Y Blasco Gil and T Saorín Pérez, Las Universidades de Mariano Ruiz-Funes: La lucha desde el exilio por la universidad perdida (Murcia, Editum Ediciones Universidad de Murcia, 2014). 6 On the judiciary, see M Lanero Taboas, Una milicia de la justicia. La política judicial del Franquismo (1936–1945) (Madrid, Centro de Estudios Constitucionales, 1996); P Marzal Rodríguez, Magistratura y república: el Tribunal Supremo (1931–1939) (Valencia, Editorial Práctica de Derecho, 2005). 7 See, eg, A de Juan Castrillo, Los médicos de la otra orilla: la represión franquista sobre los médicos palentinos 1936–1945 (Palencia, Editorial Cálamo, 2005). 8 Although the literal translation of the ‘Colegio de Abogados’ could be ‘School of lawyers’ or ‘College of lawyers’, we will use the US expression ‘Bar Association’ to avoid ambiguity. On the Bar Association of Valencia, see C Tormo Camallonga, El Colegio de Abogados de Valencia: entre el Antiguo Régimen y el Liberalismo (Valencia, Servei de Publicacions de la Universitat de València, 2004). 9 The biggest was that of Madrid, on which see J Tusell Gómez, El Colegio de abogados de Madrid en la transición a la democracia (1970–1990) (Madrid, Ilustre Colegio de Abogados de Madrid, 1993).

The Repression of Lawyers in Valencia  209 Thus, the most valuable documentation used to research the present chapter comprises the records of the purge of lawyers in the Valencia Bar Association. These records are numerous – more than 800 documents – and very well preserved. Each record begins with a sworn statement from the lawyer involved, who recounted his professional, personal and political activity during the war. The Bar Association then appointed an Honour Court to determine the lawyer’s responsibility for the charges that, with reference to other sources (usually police reports and statements of witnesses), were laid against him.

The Military Punishment of the Defeated: Trials Against Republican Lawyers The military jurisdiction employed summary (sumarios) and expedited summary (sumarísimos) courts martial to declare the criminal responsibilities of Republican lawyers deriving from their political and military actions during the Civil War. These judicial organs comprised professional soldiers and militarised jurists, many of whom were lawyers who had fled to the Francoist ‘national zone’ or hidden during the beginning of the war, because they did not share Republican ideals. Therefore, after the Francoist victory, these ­tribunals became an indispensable element of the regime’s repression of its opponents. This is how a colleague, who was both a prisoner of and convicted by one of these courts martial, described it: The members of the Court, who were all military, as I found out later, did not have another mission than that of saying yes to the propositions of the speaker. The prosecutor and attorney completed the bloody theatre, both appointed by the Auditor from a special department of honorary ensigns, all Valencian lawyers who offered themselves voluntarily for such an infamous task; we, the alleged defendants, who did not even know the so-called attorney, before or after the trial, and whom they did not even take the trouble to see or speak to; why, if it is all just an iniquitous taunt? Apart from their names, I don’t know anything, nor do I need to!10

The offences for which the military courts accused the lawyers varied, but many were based on the very common criminal charge of ‘assistance to the military rebellion’. Under this legal cover the accused were charged for different activities, from their affiliation to the parties and trade unions making up the Frente Popular, their actions in the Republican army, their implication in the administration of justice of the so called zona roja (the ‘red zone’, as opposed to the ‘national zone’) or for having collaborated with the authorities in some other way. For similar reasons, having been a member of the governing boards of the Bar Associations during the period of war was also a cause for criminal punishment, as it demonstrated that the convicted had accepted the legitimacy of the Republican regime after the military uprising on the 18 July 1936. There are still no definitive studies that quantify the number of courts martial that the Francoist soldiers implemented during the war and immediate post-war period, or of the participation of the militarised lawyers in them. It is clear, though, that the ­repressive

10 M García Corachán, Memorias de un presidiario (en las cárceles franquistas) (Valencia, Publicacions de la Universitat de València, 2005) 191–92.

210  Pascual Marzal and Aniceto Masferrer ­ echanisms of the army demanded an elevated number of jurists to act as ‘honorary’ m judges and prosecutors in their enormous task of attributing responsibility to the defeated.11 Manuel García Corachán, a persecuted Republican lawyer, indicated his surprise when he witnessed how his former colleagues in the Bar Association of Valencia acted in the military courts: García Fernández, also a lawyer – I don’t remember his first name, nor do I want to, but I do remember he was a perfect villain – had been a fellow party member in the beginning of the Republican Union, of which I was President during the civil war and he a member of the directive, later a soldier under me in the Court Martial of the Demarcation of Levante, of which I was Secretary-Instructor. He even accompanied me, as a confidant, on a trip that I took with my father to Madrid during the last days of the war. On our return I shared with him a sheep I had bought and that I could have kept for myself. I considered him my friend, not suspecting that he was a traitor. And he, perfectly knowing of my impeccable behaviour in all of the positions I occupied, did not even have a comforting phrase to say to my desperate father. He limited himself, unmoved, to assisting the ludicrous trial, possibly even enjoying seeing me seated on the bench of the accused, which is easier than being ashamed, if for a moment he stopped to compare my behaviour to his own, that is in the case that he still has some shame, which I doubt.12

However, we have been able to find records of the majority of courts martial trials of lawyers, whether they were judged individually or collectively.

A.  Trials Against Individual Lawyers In the Valencian case we have evidence of examples of both types of trial, against individual lawyers and groups of lawyers. Of the first type one would be the court martial to which Manuel García Corachán was subjected. This lawyer was accused of being the librarian of the governing board of the Valencia Bar Association at the beginning of the war and, furthermore, of having held the office of captain of the legal department of the Republican army, in which court a deserter had been condemned to death. The lawyer José Ricardo Pujol was also individually judged and convicted, because during the war he had accepted the office of civil magistrate of the Audiencia Territorial (regional court) and the post of president of a special Police Court. As stated in the sentence of the court martial, in the exercise of his duties, he played a moderate role, not having given during this time more than one judgment of irreversible effect, in which five individuals were sentenced to death and sought to resist the sentence being carried out; and although he was prevented from doing so, in agreement with the relatives of the accused and at great risk of losing his life, he delayed its execution as much as he could, with the aim of facilitating the condemned men’s escape, of which he had knowledge and which he was able to achieve for three of them; the remaining two were not able to escape because of difficulties that arose in the prison that are unconnected to the accused, who using the influence he had due to his position, saved the lives of many important right-wing individuals.

11 ibid 191: ‘He says that Viñals, Salinas, Montesinos, Julio Pascual and García Fernández are fiscales (prosecutors), among other lawyers of Valencia, and that it is possible that one of them is the one calling for punishment. They know that we aren’t criminals’. 12 ibid.

The Repression of Lawyers in Valencia  211 Despite all these facts in favour of the Nationalist cause, he was sentenced to life imprisonment, but this was later reduced to 12 years and in 1946 he was reprieved.13 This was because the harshness of the sentences imposed by the war councils after the end of the war and in the immediate post-war period was softening as the years passed. Initially the reduction of punishments and pardons were case specific and depended on the request of each prisoner. However, after the Second World War international pressures and the excessive number of prisoners led to the general pardons of 12 September and 9 October 1945, in which deserters from the army and those convicted of military rebellion and other offences committed during the Civil War were pardoned.14

B.  Trials Against Collective Groups of Lawyers In case number 2398-V-39 the most prominent lawyers involved with the politics of the Frente Popular during the war were examined and, if found guilty, purged. The process was initiated by Court Number Three as a ‘summary emergency trial’. It was presided over by the cavalry lieutenant, Colonel César Boan Callejas and was comprised of officers of various branches of the armed forces: Álvaro Cortes Álvarez, Antonio Osuna Morente, Miguel García Ortiz and in the role of speaker (chair of the panel), Benito Pombo Somoza. The trial started on Saturday 28 October 1939 and the 11 accused15 were all inmates in different prisons in Valencia.16 The process also started against nine other lawyers,17 but finding that they were absent – the majority of them were in exile in France and the UK – the auditor (judge advocate) decided to dismiss the criminal proceedings against them. All of these lawyers were charged with some general and some specific offences. These included the confiscation of the offices of the Bar Association at the beginning of the war, the dismissal of its board and its substitution by other Frente Popular fanatics, and its propagandistic or proselytising work in Spain and abroad in favour of the Republican cause.18 The trial was conducted rapidly, as demanded by the Military Justice Code, in which the majority of the procedural steps were shortened, and in some cases the submission of evidence was suppressed. We know of an anecdote involving one of the accused,

13 Archivo del Colegio de Abogados de Valencia (henceforth ACAV), Expedientes de reincorporación, 1946/47, box 247. 14 Decrees published in the Boletín Oficial del Estado (BOE), 14 September 1945 and 20 October 1945. 15 The accused were Carmelo Roda Llop, Leopoldo Pelechá Guerrero, Enrique García Torres, José Juan Alcaraz, Gonzalo Conejos Fernández, Bartolomé Guile Igual, Jose Feo García, Jesús Cabedo Torrens, Enrique Domenech Solis, Vicente Alfaro Moreno and Vicente Gorriz Roselló. 16 For a certain period of time many of them would coincide in the political prison of San Miguel de los Reyes. J Cano Coloma, Vientos contrarios. Recuerdos autobiográficos, Valencia, 1983, 61 notes that ‘don José Mallent and his son don José Mallent Cuadrado, don Adolfo Rincón, the lawyers Ricardo Pujos y Mas, Pepe Feo Gracía, Gonzalo Conejos, Blanes and I, as well as some other colleagues went to stay in that place. Over time Vicente Alfaro also joined us, like me as a former republican alcalde (mayor)’. 17 These lawyers were Luz le Boucher, José Rodríguez Olazabal, Antonio Ferrer Esquerdo, Antonio Monleón de la Lluvia, José Manaut Nogués, José Manaut Viglieti, Rafael Supervía Zahonero, Manuel Alonso Giner and Enrique Muñoz Orts. 18 More detail can be found in the record of the aforementioned case number 2398-V-39; for references to this trial and the sentence imposed see Archivo Histórico Nacional (henceforth AHN), Causa General, Valencia, box 1537, ex 1 fol 61 and ACAV, Expedientes de reincorporación, box 247, 1946/47, which belongs to the file of the lawyer José Feo García.

212  Pascual Marzal and Aniceto Masferrer Gonzalo Conejos, who asked the prosecutor under which law he was being accused and judged and, when the latter did not answer, the accused ‘renounced his defence, stating that they could do as they pleased’.19 In fact, the sentence was handed down one day after the start of the trial, on Sunday 29 October 1939. The judgment exonerated two of the accused, José Juan Alcaraz and Carmelo Roda Llop, as their behaviour was not considered to be criminal. However, the case was referred to the Tribunal Nacional de Responsabilidades Políticas in case any political culpability existed on which an economic sanction could be based. In contrast, two of the other accused, Leopoldo Pelechá and José Feo García were sentenced to 30 years of special imprisonment and a third, Jesús Cabedo Torrens, was sentenced to six years. Finally, the death penalty was imposed on the remaining six accused20 for having committed a crime of rebellion and for their support for the same offence, contained in articles 237 and 238 of the Military Justice Code. Out of these nine lawyers, eight were once again taken to prison and only Jesús Cabedo remained free. On those sentenced to death a penalty of absolute disqualification and civil interdiction was also imposed, in case their punishment was commuted.21 The commotion around this sentence was enormous. Despite the severe censorship and the lack of possibilities to mobilise against a decision that was considered excessively strict, the minutes of the board of the Bar Association recorded an attempt to put pressure on the Dean (the head of the Association) to intervene and ask for the lives of his colleagues to be spared, especially Vicente Alfaro, who was a very popular character in Valencia. However, that was not to be the case. We do not know the identities of the lawyers who demanded to talk to the Dean on 6 November, and who through his secretary set up an appointment for the following Tuesday. However, when the Dean, Eduardo Martínez Sabater realised ‘that many lawyers wanted to attend that day and hour before the governing board, and that such a visit could possibly be interpreted as a meeting convened by the board’, he decided to meet with the Civil Governor (a representative of the government) to present the case to him and state ‘that the governing board did not convene any meeting’. The Governor advised the board to ‘temporarily close the offices of the Bar Association for the entire day’ with the aim of avoiding bigger problems.22 When some lawyers came to the Bar Association and found the doors shut, it made them realise that the institution to which they belonged would not help their colleagues. Again, Manuel García Corachán reflected in his diary on the lack of support for his accused colleagues from the governing board of the Bar Association: I name in my note, I believe for the first time, the Bar Association of Valencia. In that regard I must say that no one did anything for those of us that were imprisoned, not even a minimum gesture that indicated the existence of any relationship with those of us that had fallen into disgrace; on the contrary, a large number of ‘colleagues’, as they cannot be called companions, offered themselves ‘voluntarily’ to execute the degrading tasks of honorary ensigns of the Juridical-Military Corps.23

19 García Corachán (n 10) 283; the annotation relates to 31 October 1939. 20 Bartolomé Guile Igual, Enrique García Torres, Enrique Domenech Solis, Vicente Alfaro Moreno, Vicente Gorriz Roselló and Gonzalo Conejos Fernández. 21 García Corachán (n 10) 283. 22 ACAV, Libro de actas de la Junta de Gobierno, meetings of 6 and 8 November 1939. 23 García Corachán (n 10) 413.

The Repression of Lawyers in Valencia  213 The six death sentences were referred to General Franco as Head of State for their ratification, with the response being that three were confirmed and three reduced: [A]fter having examined the procedure and the newly received documentary evidence, we are aware of the punishment imposed upon Enrique Domenech Solís, Vicente Gorriz Roselló and Enrique García Torres, and the substitution of the same sentence imposed on Vicente Alfaro Moreno, Bartolomé Guillem Igual and Gonzalo Conejos Fernández with one of a lower grade.24

On 28 March 1941, Enrique García Torres and Enrique Domenech Solís were executed in the barracks of Paterna.25 These were not though the only executions. García Corachán again provides us with the names of other executed lawyers: The lawyers, notwithstanding their traditional conservatism, were a large percentage of the convicts, larger than that of other professions that presumed to be liberal. Concerning death sentences, our profession wasn’t badly off either; as to executions I can mention the names that I  remember: García Torre, Domenech, González Armesto, Poyelo, Lara, Cisneros, Aragonés, García Dasí, Peset, Camilleri, and others whose names I don’t recall. Having been a victim, as well, of the same vengeful wrath, I cite the previous names with veneration and I feel somewhat proud that we men of law have paid such a high blood tribute.26

However, we must qualify the words of García Corachán in the sense that the executed lawyers were not killed for being lawyers, but for their participation in the Republican administration of justice, such as the previously noted García Torres, Domenech or Luis Cisneros, who was a court chamber secretary.27 This persecution by the Francoist military authorities of lawyers who had agreed to participate as judges and magistrates in the Republican, popular courts can be attributed to two main reasons. First, they were considered collaborators of the Popular Front politicians; and secondly, as members of the people’s courts, they were also accused of participating in the repression of right-wing criminals or sympathisers with the national cause.

The Economic Repression Complementing the sanctions imposed by the military courts, the Francoist regime devised a specific jurisdiction that would quantify the economic damage caused by the accused to the Patria (fatherland) by professing political ideals different from the values of National Catholicism. Its legal form was set out by the Law of Political Responsibilities (9 ­February 1939) and for its implementation a framework of courts of different hierarchical levels appeared: the National Court of Political Responsibilities, the Juzgados Instructores 24 AHN, Causa General, Valencia, box 1537, exp 1 fol 61. 25 AHN, Causa General, Valencia, box 1537, exp 1 fol 61. It seems that both were executed together, according to García Corachán (n 10) 361. 26 García Corachán (n 10) 289. 27 ibid 393: ‘We always found the news coming from our former prison interesting, especially if it was about friends or people we knew. There was still time to spare to judge and execute don Luis Cisneros, secretary of the division of the High Court of Valencia, with whom I did my internships for my admission to the judicial career; he had done nothing but remain at his post at the service of the legitimate Republican authorities and be a ­republican. See also V Gabarda Cebellán, Els afusellaments al País Valencià (1938–1956) (Valencia, Edicions Alfons El Magnànim, 1993), on the execution of other lawyers who were mainly from the Valencia Bar Association.

214  Pascual Marzal and Aniceto Masferrer ­ rovinciales and Audiencias (regional courts) and Special Civil Courts. There was also an P organ that coordinated the administrative management of all of them called the Administrative Headquarters,28 whose members belonged to the Falange, the army and to the judiciary and were appointed directly by the government. After the actions of the courts martial, the investigation files were remitted to these courts to evaluate economically the extent of the political responsibilities of those convicted. The Law included different sanctions grouped into three sections. The first dealt with so-called ‘restrictive activity’ sanctions, which encompassed the absolute or special disqualification from holding an office (private or public); the second section included the limitative residential sanctions that included estrangement, relegation, confinement and banishment;29 and lastly, the ones that interested the new regime the most were economic, which included the total or partial loss of goods and the payment of a fixed penalty.30 The Law concerned civil responsibility, which military courts did not address, and which was left open in ­criminal convictions with the clause ‘civil responsibility without limit’.31 Concerning this Law the lawyer, Manuel García Corachán, himself a victim of the ­Francoist repression, had some relatively complimentary words from a legal perspective: I had previously read the Law of Political Responsibilities, which I discussed with another lawyer who was in the cell with me; the part that appeared in the press didn’t give me a bad impression, as it did not seem to be badly constructed nor too strict. I need to form an opinion on it, information concerning its application and, especially, to know it completely.32

However, concerning this Law’s practical application we have an important limitation in the Valencian case: a large part of the archival sources has disappeared and today only a few hundred files remain, of which only a few are about lawyers. One of these concerns Mariano Gómez González, a member of the Bar Association of Valencia who attained great importance during the war and was named President of the Supreme Court and who was sentenced by default by the Superior Court of Political Responsibilities to the total loss of his goods.33

The Professional Purge After the end of the war, and with reference to places dominated by the Republican army, the first important Bar Association to perform a purge of its professionals was, 28 Law of Political Responsibilities 1939, Art 18. 29 The expressions extrañamiento (estrangement), confinement and banishment are a long-standing part of the Spanish criminal law tradition. In the 16th and 17th centuries estrangement (also called relegation) was used to get cheap human resources to work in overseas territories (such as Africa) or galleys. Although the meaning of these expressions has changed over time, confinement refers to the obligation to live and move within a limited geographical area, whereas banishment implies the expulsion of someone from his or her land, territory, kingdom or country. 30 Law of Political Responsibilities 1939, Arts 11–17. See generally Dueñas (n 2). 31 This quotation has been taken from the judgment of the court martial trial of the lawyer Emilio Blasco Alcayna: ACAV, Expedientes de reincorporación, box 247. 32 García Corachán (n 10) 83. 33 Unfortunately, this is just one of the few files we were able to find; on this lawyer see P Marzal Rodríguez, Una historia sin justicia: cátedra, política y magistratura en la vida de Mariano Gómez (Valencia, Publicacions Universitat de Valencia, 2009).

The Repression of Lawyers in Valencia  215 naturally, the one in the capital of Spain. In August 1939 the new Dean of the Association, A ­ ntonio Goicoechea, was appointed by the executive. On 25 August 1939, the new governing board unanimously approved the expulsion of its indeseables or ‘undesirable’ colleagues.34 This decision was somewhat surprising because it was made weeks before the Ministry approved the Order of 12 September 1939, which would reform the ­Statutes of the Bar Association of Madrid and, more specifically, those affecting the purge of its members.35 That Order also created some Courts of Honour with broad disciplinary powers. This type of corporative organ with a disciplinary remit already existed in the history of the Spanish advocacy, as recorded by its statutes. However, the reform that was now approved speeded up its purging task. Thereby, these courts in charge of purging lawyers were composed of the members of the Junta de Gobierno (the Bar Association governing board) together with some of the most senior and most recent members of the Bar Association, who had been appointed by the Junta de Gobierno itself. The punishments these courts could impose were several: private reprimand, public reprimand, suspension of the exercise of advocacy for three years and, finally, expulsion from the Bar Association. A brief procedure was established, leaving the possibility of appealing to the Sala de Gobierno (or Government Chamber) of the Supreme Court.36 These Courts of Honour had been common during the dictatorship of Primo de Rivera (1923–30), although they were then prohibited by Article 95 of the Republican Constitution of 1931. Such prohibition was due to the fact that these courts had been created to ensure professional honour, but degenerated on numerous occasions into an instrument of political or corporate revenge because of the lack of procedural guarantees. Hence, most jurists had celebrated their suppression.37 The other large Spanish Bar Association, in Barcelona, would take longer to execute the purge of its members, which did not take place until 20 March 1940, and resulted in the banishment of 45 lawyers. This slower process was due to the fact that the military authorities’ priority was the purge of lawyers in Madrid, since they were the most politically relevant. As the lawyers of Barcelona or Valencia, with few exceptions, had a lower political rank, their purge could wait a few months. Concerning the Valencia Bar Association, ever since it started on its new institutional path at the end of the Civil War in July 1939, one of the main (in some cases obsessive) tasks of its governing board was the purge of its members. The Dean himself, Eduardo Martínez Sabater, who was appointed directly by the executive, informed his colleagues on the day he took office that the ‘important problem of the purge of all the members’ would be addressed, and notified them of the criteria of His Excellency the Minister of Justice concerning the special purge of the professionals, opining that advocates are not public officials and, therefore, the same purge to which all the officials and employees of the State are subjected to should not be performed on them.

34 See the list of such ‘undesirable’ colleagues in Appendix I at the end of the chapter. 35 BOE, 28 September 1939. 36 Shortly after, another Order of 2 October 1939 (BOE, 8 October 1939) clarified some doubts concerning the appointment of the most senior and most recent member by stating that their appointment was not to be made by the general board but by the governing board itself. 37 On this matter, see N Pérez Serrano, Editorial, ‘La Constitución española (9 de diciembre de 1931). ­Antecedentes, texto y comentarios’ (1932) Revista de Derecho Privado 292.

216  Pascual Marzal and Aniceto Masferrer In addition, the Minister, the Carlist Esteban Bilbao Eguía, desired a ‘fast and absolute purge of all the students’.38 With these words two things were made clear: first, that the Law on the Purge of Civil Servants (14 February 1939) would not apply to the liberal professionals; and secondly, that the professional purge would be carried out by the members of that profession.39 With the aim of determining the most effective procedure to follow, the Bar Association of Valencia asked the Bar Associations of San Sebastián, Bilbao, Barcelona, Madrid and Seville, for details of the purges that they had carried out.40 In the case of Seville, the Bar Association had been in a territory dominated by the nationals during the entire war. The purge of its members had thus taken place much earlier. A so-called ‘court of correction’ was created, which decided on 29 September 1937 to banish several lawyers.41 The majority were prestigious lawyers with significant positions in different areas of Republican politics, as recorded in the expulsion order, [said lawyers have militated] in the parties of the Frente Popular and acted … in favour of the Red Government against which National Spain and its glorious Army fights so victoriously, infringements whose notorious severity makes [the lawyers] unworthy of continuing to belong to this illustrious Bar Association.42 38 This purging commitment of the governing board of Valencia happened also, as we have seen, in other big Bar Associations such as those of Madrid or Barcelona. However, it contrasts with what happened in other smaller Bar Associations. In the case of the city of Castellón, according to Sebastián Albiol, there was no corporative purge by the governing board; on the contrary, it tried to help its members, even when they were judged by the military jurisdiction. The reasons that might explain this behaviour were, on the one hand, that the lawyers who were politically involved went into exile and, on the other, that ‘being a Bar Association with so few members, the personal relations – and the ones formed between them by kinship – were very intense, which favoured a certain amount of professional solidarity’: see S Albiol Vidal, El Colegio de Abogados de Castellón (Castellón, Colegio de Abogados de Castellón, 1994) 66. The second reason seems to be more convincing even though the board nevertheless had to eject those who had not been reincorporated as lawyers: Álvaro Pascual-Leone Forner, Manuel Aragonés Cucala and José Castelló-Tárrega Arroyo, who had gone into exile in Mexico, as was common in other Bar Associations. 39 La Vanguardia, 26 March 1940, 10. 40 ACAV, Libro de actas de la Junta de Gobierno, 3 July 1939. The doubt concerning the purging functions of the governing boards spread to the majority of Spanish Bar Associations. For example, the Bar Association of Murcia demanded information from the presidents of the Provincial and Territorial High Court. On 30 November 1939 the Dean of the Bar Association of Murcia, Eduardo Espín explained to its board that ‘concerning the purge that this Bar Association must perform on its members in compliance with the Law of 10 February of the present year, he has visited the presidents of the Provincial High Court of Murcia and the Territorial Court of Albacete to discuss with them the authority by which the Bar Association must perform such purge, as the text of said Law does not specify it. He has informed the board in detail of these conversations and of their result and he now refers to the notification on the 27th of this month by the President of the Provincial Court of Murcia transmitting what His Excellency the President of the Territorial Court of Albacete said to him, explaining the content of the provision (‘Orden’) given by the Directorate General of Justice, whereby the purging tasks are entrusted to governing boards of all Bar Associations’: see C Agullo Benedi, Pequeña y verídica historia del Colegio de Abogados de Cartagena (Cartagena, Ilustre Colegio de Abogados de Cartagena, 1986) 208. 41 These were: Benito Pabón y Suarez de Urbina, Pedro Rico López, Demófilo de Buen Lozano, Luis Fernández Clérigo, Felipe Sánchez Román Gallifa, Justo Feria Salvador, Juan Simeón Vidarte, Rafael de Pina, Milán Antonio Vidal y Moya, José María Cammar y Sala, Manuel Blasco Garzón, Manuel Pérez Jofre de Villegas and José Trellez Salsamendi. 42 J Santos Torres, Apuntes para la Historia del ilustre Colegio de Abogados de Sevilla (Sevilla, Editorial Castillejo, 1994) 145. In the Bar Association of Badajoz, which was briefly dominated by the Government of the Frente ­Popular and which passed into National hands in August 1936, the expulsion of progressive lawyers was also carried out. In this case, the same governing board performed the expulsion of eight of its members: Fernando Miranda Quiñonez, Anselmo Trejo Gallardo, Hermógenes Pacheco Gordillo, José Aliseda Olivares, Juan Simeón Vidarte, Carlos Castillo García Negrete, Luis Barrena and Alonso de Ojeda, the reasons being: ‘for their marxist behaviour during the present movement’ and that ‘they wandered from the right track, cooperating with the unpatriotic work to which bad and traitorous governments gave themselves to destroy Spain’: see Torres, ibid, 219.

The Repression of Lawyers in Valencia  217 On 11 July the new governing board of the Valencia Bar Association had a meeting led by Eduardo Martínez Sabater, who had been appointed by the Minister of Justice. The first and main problem to be discussed, as he reiterated on various occasions, was the purge of his colleagues. Therefore, a decision was made in accordance with the wish of the Dean and the governing board of the illustrious Bar Association of Valencia, to perform the purge of its colleagues as fast as possible, so that those lawyers who are worthy because of their ancestors and behaviour can soon return to the exercise of the profession and, at the same time, to impose suitable punishments on those who deserve it.43

The initial step in the procedure consisted in answering under oath and within eight days a questionnaire that would be given to them. The questions contained in these written interrogations were very similar to those presented to other professional groups and, especially, to public sector workers. The governing board of Valencia took as a model the questionnaire that was forwarded to them by the Bar Association of Madrid, to which only two modifications were made: first, asking the lawyer whether or not he had signed the declaration of protest at the murder of politician and lawyer Calvo Sotelo before the war;44 and secondly, if he had been purged during the ‘red’ government.45 The questions put to the members of the Valencia Bar Association, in addition to requesting their personal information, were the following: 1.

Did you sign the letter of protest that was exhibited in the Bar Association concerning the vile governmental murder of our famous colleague, Calvo Sotelo? 2. How were you qualified on August 1936 by the red committee which, calling itself the governing board, took over the Bar Association? With voice and vote, with voice but without vote, or without voice or vote. 3. Did you subsequently have any sanction imposed on you by the above-mentioned committee? If affirmative, fill in the date and the scope of the punishment. 4. Have you held any of the positions in the so-called governing board that has acted in the place of the Bar Association from 18 July 1936 until the day of liberation? 5. Have you been president, magistrate, member, jury, prosecutor, judge, secretary, official, counsel, auxiliary or agent, as title holder, substitute or intern, of one of the tribunals or courts that have acted after 18 July 1936 until the day of liberation? 6. Have you had any position or have you acted in one of the police stations, secret police committees, prisons, General Security or any of its departments, GPA, anti-fascist police, SIM, Public Health Committee, and other auxiliary bodies of justice – of the police – of the so-called Government of the Republic, from 18 July 1936 until the day of liberation?46

43 ACAV, Libro de actas de la Junta de Gobierno, book 36, board of 11 July 1939. 44 José Calvo Sotelo (1893–1936) was a well-known Spanish politician, Minister of Finance during the Dictatorship of Miguel Primo de Rivera and a leading figure of the anti-republican radical right during the Second Republic. He was assassinated in July 1936 by a unit of the special Republican police unit, the Guardia de Asalto. That incident constituted an immediate prelude to the triggering of the military coup that had been plotted since February 1936, the partial failure of which marked the beginning of the Civil War. 45 ACAV, Libro de actas de la Junta de Gobierno, book 36, board of 11 July 1939. 46 GPA means Grupos de Policía Antifascista (Anti-fascist Police Group), and SIM refers to the Servicio de ­Información Militar Republicano (Republican Military Information Service), which was a kind of Republican secret service.

218  Pascual Marzal and Aniceto Masferrer 7. Have you held any position, or have you been a public servant or employee, since the year 1923 to date, in the central, provincial or municipal administration? If affirmative, fill in the date and form of appointment. 8. Identify political parties and trade union organisations that you have been part of since the year 1923 to date and positions you may have had in these. Specify the enrolment and leaving date for each them. 9. Have you been a candidate, representative or controller in the elections that took place on 16 February 1936? Fill in the names of the candidates you represented or that were conferred on you and their political affiliation. 10. Have you intervened before or after 18 July 1936 in conferences, rallies or other acts of political, social or trade union propaganda, or published articles, booklets or books with the same aim? If affirmative, specify in support of which party, organisation or movement, and the newsletters in which the articles were published. 11. Have you included your name at the foot of any document or message to the Cultural Centre, Alliance of Antifascist Intellectuals for the defence of Culture, Messages to the US, or protests against the bombings or similar? 12. What banking and type of official or particular advisory services have you carried out during the period comprised between 18 July 1936 and the day of liberation? 13. Identify services rendered in favour of the National Movement, during what time period and why. 14. Have you exercised any professional activity during the communist (or ‘red’) ­domination? In which courts and what type of cases have you acted? 15. How much was your total income between July 1936 and April 1939? 16. If you belong or have belonged to the freemasonry: specify rank achieved and positions exercised. 17. Have you made any trip abroad in the period between 18 July 1936 and the day of liberation? Specify the date of departure and return and whether or not it was to the national or red zone. 18. Did you serve in the Red army, police, assault corps, National Republican Guard or militia? Indicate if it was voluntary or because of a corresponding replacement appeal and the rank you achieved. 19. Give names and addresses of the people who can confirm your declarations and the documentary evidence you possess. At the end of the declaration a reference was made to the law of 10 February 1939 on the purge of civil servants, to remind the lawyers that its Article 12 criminalised and punished with professional disqualification the falsification of this type of document. The sworn statement initiated the purging process. Once the questionnaire was filled in and delivered, the board demanded of the local and police authorities the respective reports concerning the lawyers’ political activity during, or even before, the war. Many of them were provided by the ‘Information Squad’ of the Guardia Civil of the Arrancapinos District in Valencia. With this documentation the governing board formulated the statement of objections. These objections were delivered to the suspect lawyer, so he could dispute it with the witnesses and documents he deemed appropriate. Under no circumstances was the rest of the report provided, only the accusations formulated against him. Not even in the case of the prestigious Ernesto Ibañez-Rizo, who had been Dean until 5 August 1936, was the file

The Repression of Lawyers in Valencia  219 provided, despite his repeated requests. The board told him that there was no room ‘to provide the [whole] report, believing that to answer the mentioned statement of objections such examination is not necessary, or appropriate, given the documentary process followed in the purge procedure’.47 When presented with the declaration, the police reports and the arguments of the defence, the board reached its decision.48 With the aim of avoiding a collapse of the administration of justice, which in the immediate post-war months was overwhelmed, the governing board decided provisionally and immediately – that is, even before checking the results of the purge – to qualify (that is, grant a licence to practise) a group of lawyers consisting of those most supportive of the regime. The criteria used to allow some advocates to resume their work as legal practitioners combined, on the one hand, consideration of the treatment that the lawyer had suffered under the Republican authorities during the Civil War and, on the other, the requirements included in the above-mentioned Law of 10 February 1939, that regulated the purge of public officials. As a result, those allowed to practise as lawyers were: 1. The lawyers who were classified by the board of the Frente Popular ‘without voice or vote’ in August 1936.49 2. Those who had been officials of the National Army or served in its ranks as combatants. 3. Those belonging to the Fraternity of Captives in Spain.50 4. The members of the Falange Española Tradicionalista and the JONS (the two main groups that supported Franco). 5. Those who had received a governmental appointment after the Liberation of the city by Franco’s forces. On 17 August, the board approved a list of 125 lawyers who were qualified as legal ­practitioners according to the above-mentioned circumstances, although such agreement added the following warning: The fact of appearing in these lists does not prejudice the definitive purge of those included in it, just as the fact of not appearing in them does not prejudice the purge of the applicants either, as the definitive outcomes concerning this matter will be determined as a consequence of the purge that must be performed and to which absolutely all members shall be submitted. It will start, by analogy with the criteria followed during the purge of the civil servants, with the provisionally qualified lawyers, as the rest clearly adhered to the National Movement.51

It is important to underline the fact that the new Bar Association established after the Civil War had as a primary aim to filter, separate and sanction the lawyers who might possibly be enemies of the new regime. Without wasting time, the Dean, Eduardo Martínez Sabater, 47 ACAV, Expedientes de depuración, box 239. 48 We must also state that the majority of lawyers’ files, given the affinity of many students with the National Movement, recorded only the sworn declaration and the letter of adherence to the Republican board they had to present at the beginning of the war. 49 The lawyers who were classified by the board of the Frente Popular ‘without voice or vote’ in August 1936 were allowed to practise because they were only considered dangerous ideologically and not professionally. By eliminating their ability to vote, the board of the Frente Popular knew that the new governing board of the Bar Association would be composed of progressive, left-wing lawyers. 50 This was because this organisation, created by Franco, included all those who had suffered imprisonment during the war in the area dominated by the Republican government. The fact of having been imprisoned guaranteed that such men adhered to the ideals of the new National-Syndicalist, or National-Catholic regime. 51 ACAV, Libro de actas de la Junta de Gobierno, book 3, board of 17 August 1939.

220  Pascual Marzal and Aniceto Masferrer assumed this task and soon put it into practice, as we have seen. He knew that the governing board over which he presided was competent to conduct the purge, but did not know the extent of its sanctioning faculties.52 The Valencia Bar Association desired a norm such as the Order of 12 September 1939 that modified the Statutes of the Bar Association of Madrid, as well as articles 38 and 39 of its Statutes: [S]o, having constituted the boards into courts, they can rapidly perform the purge of their members, without prejudice to the governing board itself, which without needing to constitute itself as a tribunal, might complete the purge without opening files on those of its members who are absolutely trustworthy and undeniably loyal to the national cause.53

With the aim of extending this inquisitorial task to the whole province, on 3 October 1939 the Dean suggested to the governing board his plan to request the Minister of Justice to suppress the other existing Bar Associations in the province of Valencia, those of Alcira, Sueca and Xátiva, so as to ‘broaden the purge of the lawyers of Valencia to one of all the advocates of the Province’.54 Without a doubt, some suspected the lack of eagerness and harshness with which these small professional associations assessed their colleagues’ responsibilities, which might have allowed some of those sanctioned by the Valencia Bar Association to continue practising law. Also, during September 1939, the purge of colleagues was initiated. It started with those lawyers who were the closest to the National-Catholic ideals of the new regime, who had signed the declaration about Calvo Sotelo, who had collaborated in the Quinta Columna (the ‘fifth column’ of Francoist sympathisers during the battle for Madrid in 1936) or who had been persecuted during the war by the Republican authorities. This explains why the majority finished the process ‘without sanction’, because they fulfilled one of the criteria established by the board on 11 July, or appeared on the list of lawyers provisionally approved 52 According to the minutes of the governing board, the Dean met with the Minister of Justice and the head of this department to ensure that the purge could start without any problems. The secretary of the Bar Association, Lluch Marín, did the same, and was assured by the Minister on 30 September 1939 that this task belonged to the governing boards. 53 ACAV, Libro de actas de la Junta de Gobierno, books 36, 49 and 50. The reform of the Bar Association of Madrid, by the Order of 12 September, also extended to that of Barcelona, as expressly requested by its Dean, José María Alier y Cassi by the Order of 16 March 1940 (BOE, 18 March 1939). 54 ACAV, Libro de actas de la Junta de Gobierno, book 36, board of 3 October 1939. A study of the minutes of the Bar Association of Sueca allows us to draw some conclusions concerning the purge performed there and the distrust of Dean Eduardo Martínez Sabater. First, it seems that, just like in Valencia, the Bar Association of Sueca executed the purge of its members (none of the files remain but this is stated in at least two certificates issued in favour of the lawyers Fernando and Juan Luis Llopis Mezquita, in which it is expressly mentioned that they have ‘been purged by means of the appropriate file which included the verdict of purged without sanction’); secondly, it seems that the enrolments of lawyers coming from other Bar Associations, especially from Valencia, mention and provide certificates about the purge performed in their respective Bar Associations; and thirdly, it seems that even in the mid-1940s the Bar Association of Sueca demanded from some lawyers a ‘Sworn Declaration’ about their actions during the Civil War. Due to these circumstances we can question the suspicion that Dean Eduardo Martínez Sabater had about the diligence with which the smaller Bar Associations performed the filtering and purge of their members. We cannot affirm that it was as rigorous and strict as the purge in Valencia, but we can say that it was performed in line with the rest of the institutions of the New Spain. That is why we believe that the purge became an excuse to try to achieve an old aspiration of the Bar Associations of provincial capitals, that is, to suppress the disloyal competence that these small Bar Associations represented. See Archivo del Colegio de Abogados de Sueca, Actas del Colegio de Abogados de Sueca, October d1939/10 November 1947. On these conflicts, see C Tormo Camallonga, ‘La profusión de colegios de abogados y el grave perjuicio que irrogan. Los Estatutos de 1938 y el conflicto de residencia a propósito de los colegios de Valencia y Sueca’ (2014) 50 Revista Jurídica de la Comunidad Valenciana 5.

The Repression of Lawyers in Valencia  221 on 17 August. However, we must note that only 111 lawyers were granted a favourable outcome to the purge.55 Again, during October 1939, the Dean met the Minister of Justice and demanded anew the suppression of the provincial Bar Associations in order to make the purging task more efficient. However, the Minister avoided the adoption of any measure on this matter and answered with an evasive promise to ‘rapidly resolve the problem of the Bar Associations of the province of Valencia’.56 As a solution was not forthcoming, the Dean presented to the Minister an institutional request concerning the necessity of purging all the lawyers who act in the province but who do not belong to the Bar Association of Valencia, insisting at the same time on the suppression of the Bar ­Associations of the province, as the number of their members was not sufficient for their constitution.57

The silence of the Minister forced the Dean and Secretary to appeal to Madrid again. However, the Minister’s answer was still ambiguous, as he promised them ‘a rapid and efficient solution’. Once more on 3 May 1940, the governing board of the Valencia Bar Association presented a reasoned petition to the Minister ‘complaining about the unlawfulness of the functioning of the Bar Associations of Alcira, Játiva and Sueca, and demanding the purge of the lawyers practising in this province without belonging to the Bar Association of Valencia’.58 The demand received no response. The Law governing the disciplinary exercise against the suspicious Spanish lawyers who did not belong to the Bar Association of Madrid, arrived on 9 November 1939. An order of the Dirección General de Justicia (Directorate General of Justice) expressly approved of the governing boards of the Bar Associations being in charge of performing the personal purge of their members, ‘just as the governing board of the illustrious Bar Association of Madrid has been empowered to inform the department of the Directorate General of Justice of cases involving any sanction’.59 On 9 May 1940 the Honour Tribunal in charge of deciding on the files generated during the purge of the Valencian lawyers was created. This court was formed by the members of the governing board and two lawyers, Evaristo Crespo Azorón as the most senior lawyer and José Mª Palop Medina, as the most junior.60 Nevertheless, the governing board did not agree on the adoption of a decision to start the purge, as it was unsure about the correct procedure that had to be followed to implement any sanctions that might be found necessary. The few norms on this matter introduced after the end of the Civil War and specified in the orders of 12 September and 9 November 1939 relating to Madrid were read and re-read over and again. The normative confusion grew when a few months later, the Order 55 ACAV, Libro de actas de la Junta de Gobierno, book 36, 52–54. 56 ACAV, Libro de actas de la Junta de Gobierno, book 36, board of 12 October 1939, fol 56. 57 ACAV, Libro de actas de la Junta de Gobierno, books 36, 119, board of 27 February 1940. 58 ACAV, Libro de actas de la Junta de Gobierno, books 36, 129 and 134. The meeting of the Dean and secretary with the Minister was to solve ‘everything related to the purge of its members, the constitution and procedure of the courts of honour, sanctions to be imposed, reform of the Statutes, Bar Associations of the province and conditions relating to them and their existence, and, if needed, the transformation of our Bar Association into a provincial one; purge of the lawyers who work outside of the city of Valencia (‘Partidos judiciales’) and how many cases are already initiated’. The answer of the Minister was made public in the board of 25 April 1940. 59 ACAV, Libro de actas de la Junta de Gobierno, books 36, 82, board of 21 November 1939. 60 ACAV, Libro de actas de la Junta de Gobierno, book 36, board of 9 May 1940 ff 139 and 140.

222  Pascual Marzal and Aniceto Masferrer of 16 March 1940 expressly reformed the statutes of the Bar Association of Barcelona on this matter, as had been done in Madrid,61 thus apparently confirming that the Order of 12 September was not applicable to the rest of the Bar Associations in Spain, which had to continue functioning according to the ancient royal ordinance of 16 March 1895. The result of this situation was that on 14 May 1940 the Bar Association of Valencia submitted an enquiry to the Directorate General of Justice as to whether or not the Order of 9 November 1939 was sufficient to accept and resolve the files referred to it, without another court, and without having to follow other special norms except those of free will, judgment and responsibility and with only one ­obligation to communicate to the Directorate General of Justice the cases resulting in a sanction.62

The answer of the Directorate General arrived very soon this time and confirmed ‘the rule that only the governing board is empowered to intervene and resolve the purge files of their members’.63 From that moment, the governing board started performing its sanctioning duty. The most important agreement concerning the purge of the Bar Association was reached by the board on 24 May 1940. In it those who had been most significant in the politics of the Frente Popular were permanently ejected, which resulted in the dismissal of 40 lawyers from the lists of the Bar Association. Additionally, we must stress that this measure was executed without the ‘formation of a purge file, because they considered that, without further ado, [those lawyers] had to be excluded for their distinguished and public behaviour in favour of the republican Marxist Government and against the Bar Association and the other members’.64 The reasons given in this agreement were stated at its beginning: The Governing Board, considering it necessary for the prestige of this illustrious Bar Association to exclude from its lists some of the lawyers who appeared in it before 18th July 1936, of whom some, because of their behaviour, not only of a political nature but also involving extreme ­uncollegiality towards the other lawyers of this Bar Association, distinguished themselves in the assault against the Bar Association, and others whom, following investigation of the revolutionary movement, in direct cooperation with it performed political tasks of so-called popular justice as well as of adherence to the republican Marxist Government, deserve the sanction of expulsion.65 61 In the use of these functions the Bar Association of Barcelona ejected, as agreed by its governing board on 20 March 1940, the students listed in Appendix II at the end of this chapter. The reasons why these students were expelled were very similar to those of the majority of the Bar Associations: participation in the popular courts, in the parties and trade unions of the Frente Popular, or in significantly revolutionary events such as the attempt to occupy the Bar Association or the creation of the Judicial Office. 62 ACAV, Libro de actas de la Junta de Gobierno, books 36, 141. 63 ACAV, Libro de actas de la Junta de Gobierno, books 36, 144: the Order of the Directorate General pointed out that ‘the purging task for those that perform liberal professions such as lawyers and prosecutors must lie in the institutions in the best position to do so and with greater assurance of success’ and that ‘these Bar Associations, through their governing boards whose mission generally ensures the prestige of the profession’ can obtain more information ‘in relation to activities undertaken by their members, not only in moral and professional terms, but also in terms of the social and political order’. 64 ACAV, Libro de actas de la Junta de Gobierno, book 36, board of 24 May 1940, f 148. 65 ACAV, Libro de actas de la Junta de Gobierno, book 36, 148–49. The names of some of these repressed lawyers are listed in Appendix III at the end of this chapter. Interestingly, the annotation inserted after the name of the right-wing Valencian regional leader, Luis Lucia, states: ‘he has been condemned by a Military Court to the death penalty, commuted to thirty years’. The total number of the collegiate repression was as follows: 44 lawyers were ejected; four were suspended for six years (Juan Cucó Gisbert, José Juan Alcaraz, Federico Soro Franco and Carmelo Roda Llop); four were suspended for three years (Jesús Cabedo Torrens, Ángel Fernández Llorca, Antonio Cortina Benajas and Antonio Ineba Forriol); one was suspended for two years (Alejandro Bataller Madramany);

The Repression of Lawyers in Valencia  223 The expulsion of one lawyer in particular, Pedro Ribelles, is especially interesting because it was not due to strictly political reasons, but only because of moral and religious factors, as his values went against the principles of National-Catholicism. In his purge the charges he was accused of were having presented a letter of support to the Republican board using overly enthusiastic and critical terminology directed at the judges and magistrates who had heard his petition for divorce; and secondly, having published during the war a book with the title, Free Marriage.66 The Catholic Church had not welcomed the arrival of the Republic and its new principles, which were deemed threatening to Catholic values (secularism of the state was proclaimed in the Constitution of 1931, and civil marriage and divorce were covered by laws in 1932), especially, as in the present case, when marriage was advocated without any type of limit and in which the spouses united and separated according to their free will (which was also the case in the Family Code approved for Russia in 1926).

Conclusion A distinct relationship between political ideology and criminal law might appear in any society, but it becomes more evident in those that deviate from democratic principles. The dictatorship of Franco was institutionalised as a political regime based on the principles of national-syndicalism and in which the Catholic Church was to have the leading role, hence the regime’s categorisation as National-Catholic. Any political, social and religious activity that was incompatible with those prevailing principles was supposed to be persecuted by criminal law and other repressive legislation. For that purpose, war councils and special jurisdictions were set up, such as that used to prosecute communists and freemasons. In addition, ordinary legislation was also important, especially the Penal Code of 1944, in which the values of the Church were protected in a special way.67 This relationship between repressive legislation and ideology explains several of the consequences and conclusions identified here. seven were suspended for one year (Matías Lorente Pascual, Enrique Martí Ortí, Antonio Pinazo Lacueva, Francisco Romaguera Ruiz, Honorio Alcalá Sánchez, José Miragall García and José Monzó Valiente); five were suspended for six months (Francisco Feliu Devés, Vicente Aparicio Mendaño, Manuel Soler Palmero, José Candel Villora and Fernando Molina García); six were suspended for three months (Arturo Lorente Sánchez, Juan Bautista Martínez Vives, José Ros Mateo, José Payá Espinós, Eulogio Aparicio Diaz-Maroto and Jacinto Gonzálvez Domenech); two were suspended for one month (Pablo A Bertomeu Crespo and José María Campos Rubio); eight were punished with public repression (José Fito Carrión, Alberto Lorente Villalba, Gerardo Marín Ferrer, Joaquín Calabuig Soler, Amado Ballester Millán, Valentín Martínez Marco, Rafael Rico Pérez and Antonio Talens Doñate); and eight were punished with private reprimand (Raúl Puig Lis, Manuel Soriano de Lacy, Ramón Morell Castelló, José M Pizcueta González, Salvador Salom Ahullana, Jacinto Talens Valero, Francisco Calvo Mayoral and José Boquera Serra): see ACAV, Listas de depuración y habilitación, box 246. During the following years some punished lawyers demanded their reincorporation to the Bar Association: Juan García Vallejo, Vicente Donat Sanz, José Ricardo Pujol Más, Manuel Albert Martínez, Leopoldo Pelechá Guerrero, Emilio Blasco Alcayna and José Feo García: see ASLV, Expedientes de reincorporación, box 247. 66 The letter of adherence dated 10 August 1936 is incorporated in his file. The depositions are signed by Pedro Ribelles on 3 November 1941 from the prison of Valencia in which he was imprisoned a month before. Despite its length, his text is of enormous interest in seeking to understand how cut off the majority of Spanish society was from the measures approved by the Republic, such as civil matrimony, divorce and laicism. (ACAV, Expedientes de depuración, caja 243, file of Pedro Ribelles Pla). 67 See further P Marzal, ‘Criminal Law under the Francoist Regime: the Influence of Militarism and NationalCatholicism’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015).

224  Pascual Marzal and Aniceto Masferrer In this chapter, a picture has been presented of the repression carried out against lawyers in Valencia between 1939 and 1940, with reference to how they suffered during the early years of the war between 1936 and 1937. Although figures might not be definitive, they are particularly revealing and enable us to come to some conclusions. The first and main conclusion is that the punishment of lawyers in Republican Spain was much harsher than that performed in the years before the war, because of the number expelled and because of those assassinated or shot; approximately 70 lawyers were executed by the Republican militia – mainly anarchists – while the number of those suspended from office by the Republican governing board of the Bar Association approaches 235.68 Secondly, this difference is due to one main reason: the conservative mindset of the majority of members of this professional body, which was in conflict with Republican ideology and led during the first months of conflict to persecutions, assassinations and other repressive measures against it; whereas in contrast, once the war was over, Spanish lawyers fitted much more easily into the value system of National-Catholicism. This ‘conservative mindset’ can be understood as arising from various factors. In particular, the conservative nature of Spanish law has its roots in the origin of the students who attended law schools. The majority were from the wealthy bourgeoisie, children of landowners or entrepreneurs, whose families had strong religious convictions and whose parents were members or sympathisers with right-wing political parties such as the Derecha Regional Valenciana (the Valencian Regional Right), the Agrarian Right, the Spanish Falange, or the Confederación Española de Derechas Autónomas (CEDA, or Spanish Confederation of Autonomous Right-wing Groups). In addition, during the years after the advance and development of unions such as the Confederación Nacional del Trabajo (the CNT, or National Labour Confederation, an anarcho-syndicalist union) or the Unión General de Trabajadores (the UGT, or General Union of Workers, a socialist union), and left-wing political parties such as the Partido Socialista Obrero Espanol (the PSOE, or Spanish Socialist Workers Party) or the Partido Comunista de Espana (the PCE, or Spanish Communist Party), the majority of jurists became entrenched in their political ideas, fearing that Spain would undergo a revolution as had happened in Russia in 1917. Society was thus divided during the years of the Republic into two irreconcilable sides that would face each other in the fratricidal civil war between 1936 and 1939. The legal profession in the Spain of the 1930s was composed of jurists related ideologically to the above-mentioned conservative and right-wing parties, also including the Comunión Tradicionalista de los Carlitas (Traditionalist Communion of the Carlists).69 68 The repression in the Republican zone was given a propagandistic character by the Franco regime and summarised in the well-known Causa General (General Cause), whose results were published by the Ministry of Justice in Causa General, la dominación roja en España, avance de la información instruida por el Ministerio público (Madrid, Ministry of Justice 1944); the best work on the territory of Valencia is by V Gabarda Cebellán, La represión en la retaguardia republicana. País Valenciano, 1936–1939 (Valencia, Diputación Provincial de Valencia, 1996), whose appendix contains a list of people who were shot; on the concrete figures of repressed lawyers, see the Solemnes honras fúnebres por los abogados muertos del Ilustre Colegio de Valencia (Valencia, 1939), and ACAV, Listas de depuración y habilitación, box 246, document without date. Both sources were used by P  Marzal, Abogacía y guerra civil. El Colegio valenciano en perspectiva comparada (1936–1941) (Madrid, ­Dykinson, 2016) 22–37. 69 This movement was composed of followers of another branch of the Bourbons different from that of King Alfonso XIII, deposed by the proclamation of the Republic in 1931.

The Repression of Lawyers in Valencia  225 Therefore, they were ideologically close to the soldiers who had risen up against the Popular Front government in Africa.70 This conservative ideology of Spanish and more specifically Valencian lawyers had enormous consequences when the military uprising in Valencia failed, triggering the Civil War. These jurists became the target of anti-fascist militias and many of them were murdered, persecuted, imprisoned, lost family members, or had their property seized. Only a few shared the ideals embodied in the Popular Front, and it was they who collaborated in unions, popular courts and other Republican institutions. When the Civil War ended, those who had been persecuted now had the opportunity to take revenge. Therefore, they agreed to collaborate in the war councils, even against their former colleagues. However, most of the lawyers who after the war were targeted in the Francoist purge easily avoided it, because most had refrained from collaborating with Republican institutions, both civilian and military. This explains why, with the exception of some judgments against the main leaders that ended with imprisonment or death, much of the repression against lawyers in the post-war period was very slight. The penalties imposed by the Bar Association limited the condemned to only a few years of disqualification from professional practice, or to public or private reprimand, a kind of merely moral sanction. The same explanation also applies to the Spanish judiciary, anchored mostly in nineteenth-century principles, characterised by a notable conservatism. The judges and magistrates had no problem in continuing to exercise their posts at the end of the war. Furthermore, something very similar happened with the professors in university law faculties, a majority of whom kept their chairs, since – like the practising lawyers – many adhered to right-wing political parties, for example, Mariano Puigdoller, a professor of legal philosophy who was at the same time president of the Traditionalist Communion in Valencia. This explains why the repression suffered by these groups at the end of the Civil War did not have the rigour of that inflicted on other professional groups, such as high-school teachers or postal officials, who were more imbued with progressive and leftist ideas.71 Consequently, the chapter has shown that, even though the Francoist repression of lawyers after the Civil War affected numerous members of that profession, it was in significant part implemented by members of the profession itself due to ideological affinities with the Francoist regime. Moreover, despite some severe aspects, the National-Catholic purge of the legal profession was not systematically repressive, nor as harsh as the persecution suffered by the same Valencian lawyers at the beginning of the civil conflict, in what came to be called the ‘red terror’.72

70 On this matter, see M Lanero Táboas, Una milicia de la justicia. La política judicial del franquismo (1936–1945) (Madrid, Centro de Estudios Constitucionales, 1996); concerning the magistrates of the Supreme Court, see also M Lanero Táboas, ‘La depuración de la magistratura y el ministerio fiscal en el Franquismo (1936–1944)’ (2009) 65 Jueces para la Democracia 39. 71 F Morente Valero, La depuración del magisterio nacional 1936–1943 (Valladolid, Ediciones Ámbito, 1997); JC Bordes Muñoz, El servicio de Correos durante el régimen franquista (1936–1975). Depuración de los funcionarios y reorganización de los servicios postales (Madrid, Ediciones Cinca, Fundación Largo Caballero, 2009). 72 See Marzal, Abogacía y guerra civil (n 68) 22–37.

226  Pascual Marzal and Aniceto Masferrer

Appendices The present list of lawyers judged by the War Council 2398-V-39 constitutes the main ­example of the repression against Valencian jurists at the end of the war. The sad end of several of them, executed by firing squad or imprisoned for many years in Franco’s prisons, has led us to collect them in this documentary appendix as a small tribute.

Appendix I: List of ‘Undesirable’ Colleagues Referred to in Footnote 34 Source: La Vanguardia, 26 August 1939, 9 Luis Jiménez de Asúa, Julia Álvarez Resano, José Rosado Gil, Emilio Baeza Medina, José Antonio Balbontín Guitérrez, Manuel Blasco Garzón, Jerónimo Bujeda Muñoz, Carlos Castillo García Negrete, Antonio Cases Casaña, Luis Fernández Clérigo, Angel Galaza Gago, Féliz Galarza Gago, Antonio Horna Campos, Manuel de Irujo, Victoria Kent Siano, Francisco López de Goicoechea, Marino López Lucas, Aurelio Matilla García del Barrio, Miguel Maura Gamazo, Juan Manuel Mediano Flores, Eduardo Ortega y Gasset, Angel Ossorio Gallardo, Manuel Ossorio Florit, Benito Pabón Suárez de Urbina, Enrique Peinador Prrúa, José María Rodríguez de Rivera, Manuel Betes Bruzos, José Polo de Bernabé y Bustamente, Luis Zubillaga Olaide, Graco Antonio Marsá, Pedro Rico López, Rafael Guerra del Río, Mariano Ruiz Funes, Pedro Gallo Rodríguez, Antonio Sacristán Colás, Felipez Sánchez Román, José Ignacio Aldama Gamir, Juan Sarradell Farrás, José Serrano Batanero, Antonio Vidal Moya, Juan Simeón Vidarte, Tomás Gómez Piñán, Álvaro Albornoz Limiñana, Basilio Álvarez Rodríguez, Niceto Alcalá-Zamora Castillo, Niceto AlcaláZamora Torres, Julio Álvarez del Vayo, Manuel Azaña Díaz, Augusto Barcia Rodríguez Trelles, José Bergamín Gutiérrez, Juan Botella Asensi, Demófilo de Buen Lozano, Gerardo Lacalle Martín, Lorenzo Barrio Morayta, Guillermo Cabanellas Torres, Rafael Barrón del Real, José Ballester Gozalbo, Valentín Casanueva Picazo, Ramón Muñoz Núñez del Prado, José Prat García and Luis Escobar Espino.

Appendix II: List of Expelled Students Referred to in Footnote 61 Source: La Vanguardia, 26 March 1949, 10 Niceto Alcalá Zamora Torres, José Andreu Aballó, José Boronat Recasens, Juan Botella Asensi, Jerónimo Bugeda Muñoz, José María Casals Baltá, Juan Casanellas Ibarz, Juan Casanovas Maristany, Antonio Cases Casan, Epifanio Mª Climent Valdés, Camilo Companys Jover, Luis Companys Jover, Francisco Corbella Alegret, Pedro Corominas Montaña, Armando Cortel Pla, Ignaico Mª Emilio Domínguez, Antonio Fernández Ros, Francisco Fornier Guzmán, Francisco Javier Chaparro Riera, Enrique Galofré Haeffner,

The Repression of Lawyers in Valencia  227 Tomás Gómez Piñán., Ricardo Gordo Fornés, Rafael Guerra del Río, Luis Jayme Zamora, José Juan Serna, José Medina Rodríguez, José Merino Blázquez, Miguel Morales Romero, Ramón Muñoz Núñez del Prado, Gabriel Mur Castan, Ramón Palazón Bertrán, Ramón Pérez Noriega, Segismundo Pérez Verdú, Jesús Pinilla Fornell, José María Pou Sabater, Eduardo Ragasol Serra, José Ramírez López, José Rosado Gil, Pelayo Sala Berenguer, Pelayo Ángel Samblancat Salanova, Mariano Sánchez Roca, Eduardo Sanjuán Albí, Vicente Suárez Vázquez, Carlos Vilarrodona Iglesias, and José Mª Xammar Sala.

Appendix III: List of Lawyers Expelled by the Valencia Bar Association for Collaboration with the Republican Government, as Referred to in Footnote 65 Source: ACAV, Libro de actas de la Junta de Gobierno, book 36, 148–49 Vicente Alfaro Moreno, Manuel Alonso Giner, Emilio Blasco Alcayna, Antonio Boix Roig, José Cano Coloma, Enrique Cerezo Senís, Gonzalo Conejos Fernández, Vicente Crespo Leal, Enrique Domenech Solís, José Feo García, Manuel García Dasí, Enrique García Torres, Juan García Vallejo, Mariano Gómez González, Vicente Gorris Roselló, José Gregori Martínez, Bartolomé Guillen Ygual, Luz Le Boucher Villén, Luis de Luna Ferré, Juan Bautista Llorca Bonet, José Manaut Nogués, Enrique Manaut Viglietti, Carmelo Miquel Ylario, José Miquel Ylario, Ángel Moliner Gimeno, Antonio Monleón de la Lluvia, José Oliag Cáceres, Álvaro Pascual Leone, Leopoldo Pelechá Guerrero, José Ricardo Pujol Mas, Guillermo Recio Amat, José Rodríguez Olazábal, Nicolás Sánchez Esteban, Vicente Sánchez Esteban, Agustín Sánchez Maestre, Rafael Supervía Zaonero, José Tarocher Moya, Faustino Valentín Torrejón, Pedro Vargas Guerendiain and Luis Lúcia Lúcia. Two names were added subsequently: Manuel Albert Martínez and Pedro Ribelles Plá.

228

11 Yukitoki Takikawa (1891–1962) and Legal Autonomy in Interwar Japan HIROMI SASAMOTO-COLLINS

Criminal Law and Fascism: Unicity and the Decay of Legal Theory One of the common features in the countries associated with twentieth-century fascism is a strong centripetal trend, expressive of what Vivian Curran calls unicity.1 The trend is observable in political systems as well as in the general mood of society. The idea of oneness would permeate in a totalitarian state, as in the popularity of the notion of a superior leader, a national history, a particular vision of international relations and social order. The trend towards convergence would entail the exclusion of those who did not fit with this spurious vision of singleness or unicity. Judicial order and legal structures were not immune to this trend. David Fraser sees ‘the  gradual disappearance of the dyadic structures on which liberal legality apparently depends’ in the many fascist states. According to Fraser, ‘Dyadic relationality as embodied in such different concepts as public/private, repression/ideology, or the multiform complexity of social life, are replaced in fascist law by a single vision, a single point of legitimation, and a single function’.2 Different interpretations and practices inherent in a dynamic legal structure needed to be removed. Legal theory however is a means not only of the practitioner’s private enquiry and opinion-forming, but also of communication with colleagues and the general public. Such theory is a personal pursuit but also a crucial form of political engagement. Unicity entails the coerced ‘disappearance’ of theory. In this process, the autonomous sphere of the law would be greatly diminished. It is not surprising that an authoritarian regime purges those who criticise its policy or advocate values which radically contradict its own. Both Italy and Germany, Japan’s allies during the Second World War, introduced legislation to carry out such purges. Many other authoritarian regimes, such as that of Francoist Spain, purged their opponents, i­ncluding

1 V Grosswald Curran, ‘Formalism and Anti-Formalism in French and German Judicial Methodology’ in C Joerges and N Singh Ghaleigh (eds), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Legal Traditions (Oxford, Hart Publishing, 2003) 207. 2 D Fraser, ‘Afterword’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015) 203.

230  Hiromi Sasamoto-Collins judges and law professors. On the surface, the purge of the legal profession in Japan was different from these European examples. The Japanese government did not introduce specific laws or carry out a comprehensive programme to identify and expel dissidents.3 However, it had at its disposal other effective legislation, namely the Peace Preservation Act of 1925, press and other censorship laws, and the Criminal Code itself. The interpretation of these laws became deeply critical for those jurists who increasingly found themselves at odds with the emerging orthodoxy of state law. Japanese law at this time became increasingly an instrument of nationalist vision, and liberal jurists were alert to its danger. The persecution of Yukitoki Takikawa, the subject of this chapter, is especially revealing in this regard, as it represents one of the few high-profile cases in Japan in which an individual’s theory of criminal law was found by the government to be subversive. Several of Takikawa’s books were banned, and the government had him removed from his university. Takikawa’s case is well known for historians of modern Japan as one of the government’s first attempts to quash academic freedom. It is a clear sign of Japan’s turning into a fascistic state, but it remains relatively unexamined in terms of the exact aspects of his theory which were thought to deserve censure. His case also suggests the larger question of the role of legal thought and of the legal profession – judges, bureaucrats and law professors – in opposing or abetting the Japanese authoritarian state.4 In this regard it is important to remember that modern Japanese criminal law was largely influenced by the so-called Classical School pioneered by Enlightenment thinkers such as Cesare Beccaria (1738–94) and Anselm von Feuerbach (1775–1883), then by the criminology oriented Modern School developed by Cesare Lombroso (1835–1909) and Franz von Liszt (1851–1919). Japanese specialists often came to define their own position with reference to these two schools. In Japan’s criminal law history in the early twentieth century the latter achieved ascendancy, as it did in Europe and elsewhere, but Takikawa remained loyal to the key principles of the Classical School. In European legal history, the relationship between the two schools is often described diachronically. First came the Classical School as a product of the Enlightenment movement, revolutionary politics and the rise of the bourgeoisie in eighteenth-century Europe. The School adopted the principle of modern natural law based on the Lockean theory of social contract that each person is endowed with certain inalienable rights and that the

3 Law professors were though kept under informal surveillance. After banning the works of the Tokyo University constitutional theorist, Tatsukichi Minobe (1873–1948) in 1935 for being too liberal, the Education Ministry monitored other law professors and pressured them not to teach Minobe’s theory. See FO Miller, Minobe Tatsukichi: Interpreter of Constitutionalism in Japan (Berkeley, CA, University of California Press, 1965); and H SasamotoCollins, Power and Dissent in Imperial Japan: Three Forms of Political Engagement (Copenhagen, NIAS Press, 2013). 4 On Takikawa’s career and dismissal see Takayoshi Matsuo, Takikawa Jiken [The Takikawa Incident] (Tokyo, Iwanami Shoten, 2005); Takao Itō, Takikawa Yukitoki (Kyoto, Mineruba Shobō, 2003); and Y Takikawa, Gekiryū [Violent Current] (Tokyo, Kawade Shobō, 1963). On Takikawa’s criminal law theory see Ken Naitō, Keihō Riron no Shiteki Tenkai [The Historical Development of Japanese Criminal Law Theory] (Tokyo, Yūhikaku, 2007); and Ken’ichi Nakayama, Keihō no Kihon Shisō [Basic Ideas of Criminal Law] (Tokyo, Seibundō, 2003). On the ­Takikawa Case in English see, eg, BK Marshall, Academic Freedom and the Japanese Imperial University (Berkeley, CA, University of California Press, 1992) 145–57. On the legal profession’s involvement in Japan’s wartime regime see Hiroshi Ono, Yūichi Deguchi and Naoko Matsumoto (eds), Senji Taisei to Hōgakusha [The Wartime State and Japanese Law Professors] (Tokyo, Kokusai Shoin, 2016); and Hirofumi Uchida, Nihon Keihōgaku no Ayumi to Kadai [The History and Challenges of Criminal Law Studies in Japan] (Tokyo, Nihon Hyōronsha, 2008).

Takikawa and Legal Autonomy  231 state’s power to punish must be restrained by the law.5 The principle of legality, nulla poena sine lege (no punishment without law), was its watchword.6 Growing awareness of society as distinct from the state was also central to the School’s theory, and in this spirit Beccaria could assert that the severity of punishment must correspond to social harm.7 The Modern School emerged out of the various crises of ‘modernisation’ in the late nineteenth century, industrialisation, urbanisation and population increase. Such forces made the existing criminal justice and penal system based on the Classical School’s ideas appear highly inadequate.8 The development of natural science also stimulated criminology, which in David Garland’s words, was ‘an avowedly scientific approach to crime, concerned to develop a “positive”, factual knowledge of offenders, based upon observation, measurement, and inductive reasoning, and rejecting the speculative thinking about human character, which had previously informed criminal justice practice’.9 Michele Pifferi describes the transition from the Classical School to the Modern School as a ‘shift from an individualistic idea of criminal justice to one grounded on social defence’.10 If the Classical School had also taken the idea of social defence seriously, its emphasis on ‘general deterrence’ now moved towards ‘the individualization of punishment’. The two schools were introduced into Japan almost simultaneously. The Modern School was promoted by Eiichi Makino (1878–1970), one of the most influential criminal law specialists in Japan in the first half of the twentieth century. Apart from a few earlier supporters, the Classical School was promoted by younger scholars, such as Takikawa and Seiichirō Ono (1891–1986). The fundamental debate that took place in Japan between the two schools was basically the same as in Europe and the United States and concerned the need to find a balance between the two contrasting objectives of criminal law, protecting individual rights from the state’s arbitrary rule and preventing social danger. However, Japanese jurists had to engage with this debate in a different cultural and historical context. The disadvantage of the Classical School was especially acute as the country was without the legacy of the Enlightenment, while the image of society presented by the Modern School looked immediately relevant to the realities of a rapidly industrialising country. When the military-led authoritarian government came to power in Japan in the 1930s, both Makino and Ono began to accommodate to its war policy, with Makino advocating an evolutionary notion of the cultural state (bunka kokka) and Ono a Hegelian and Romanticist notion of the moral state (dōgi kokka).11 Both participated in the pro-government 5 See MP Zuckert, Natural Rights and the New Republicanism (Princeton, NJ, Princeton University Press, 1994) esp ch 7. 6 See PJA Feuerbach, Lehrbuch des gemeinen in Deutschland geltenden Peinlichen Rechts (1801); and T Hörnle, ‘PJA von Feuerbach and his Textbook of the Common Penal Law’ in MD Dubber (ed), Foundational Texts in Modern Criminal Law (Oxford, Oxford University Press, 2014). 7 C Beccaria, ‘On Crimes and Punishments’ in R Bellamy (ed), On Crimes and Punishments and Other Writings (R Davies et al, trans) (Cambridge, Cambridge University Press, 1995) 19–21. 8 T Vormbaum (M Hiley, trans), A Modern History of German Criminal Law (Berlin, Springer, 2014) 109. 9 D Garland, ‘Of Crimes and Criminals: The Development of Criminology in Britain’ in M Maguire et al (eds), The Oxford Handbook of Criminology, 3rd edn (Oxford, Oxford University Press, 2002) 27. 10 M Pifferi, Reinventing Punishment: A Comparative History of Criminology and Penology in the Nineteenth and Twentieth Centuries (Oxford, Oxford University Press, 2016) 3. 11 On Makino see Ken’ichi Nakayama, ‘Makino Eiichi no Keihō Riron’ [‘Makino Eiichi’s Criminal Law Theory’] (1979) 51(4) Hōritsu Jihō 81. On Ono see Naitō (n 4) 359–71; and Yūichi Deguchi, ‘Ono Seiichirō’ in Hiroshi Ono, Yūichi Deguchi and Naoko Matsumoto (eds), Senji Taisei to Hōgakusha [The Wartime State and Japanese Law Professors] (Tokyo, Kokusai Shoin, 2016).

232  Hiromi Sasamoto-Collins Japanese Law (Nihon Hōri) Movement during the war. If they did not promote the war directly, they nonetheless became part of the large intellectual elite that provided theoretical and ideological backing for the government. Takikawa’s resistant advocacy of the Classical School’s ideals was a rare example of non-compliance. Takikawa was also deeply influenced by the thought and example of contemporaneous German jurists, such as Max Ernst Mayer (1875–1923), Hermann Kantorowicz (­ 1877–1940) and Gustav Radbruch (1878–1949), all associated with the Free Law Movement. Both Kantorowicz and Radbruch were staunchly anti-Nazi and they also were purged by the government.12 The Free Law Movement was started as a powerful counter-movement to legal positivism by students of southwest German neo-Kantianism.13 In 1906 Kantorowicz published a short book entitled Der Kampf um die Rechtswissenschaft (The Battle concerning Legal Science) under the name of Gnaeus Flavius. In this and other writings, Kantorowicz asserted that formal law such as statutes and precedents have inherent ‘gaps’ and these must be filled with judicial decisions by the courts. Kantorowicz encouraged judges to pay more attention to those elements outside formal law, such as ‘bills, principles of policy, business customs, inarticulate convictions, [and] emotional preferences’, which may have greater ‘practical importance’ than formal law.14 The empirical aspect of the law was important to the Movement, but even more central was its concern with the grounds of validity of legal norms. In this regard, Kantorowicz adhered to the Kantian distinction between facts and a legal system. For him, this boundary was not fixed, but the conceptual separation of a legal system from the material world was necessary in order to make the law an object of detached investigation. His theory sought to examine this ever-shifting boundary. According to Kantorowicz, to practise theory meant to confront diversity, multifacetedness and the complexity of the law, which may be approached sociologically, politically, scientifically and philosophically.15 Theory also allows the practitioner to approach his own value system and the decision-making process. To pursue theory means that he will remain open to the law’s diverse character, normative, sociological and epistemological. It also means that he asserts his own autonomous intellectual activity. Law is not just about the application of rules nor is it a mere branch of state theory, but is a discipline conscious of its own purposes, methodology and remit. Equally important to the legal science advocated by Kantorowicz is its normative position on the individual: each person possesses certain inalienable rights and should be treated equally by the law. Thus, the ‘law must have a general character if equality before the law

12 See R Mehring, ‘The Decline of Theory’ in AJ Jacobson and B Schlink (eds), Weimar: A Jurisprudence of Crisis (Berkeley, CA, University of California Press, 2000) 314; V Grosswald Curran, ‘Rethinking Hermann Kantorowicz: Free Law, American Legal Realism and the Legacy of Anti-Formalism’ in A Riles (ed), Rethinking The Masters of Comparative Law (Oxford, Hart Publishing, 2001); D Ibbetson, ‘Herman Kantorowicz (1877–1940) and Walter Ullmann (1910–1983)’ in J Beatson and R Zimmermann (eds), Jurists Uprooted: German-Speaking Emigrés in Twentieth Century Britain (Oxford, Oxford University Press, 2004); M Hilderbrandt, ‘Radbruch on the Origins of the Criminal Law: Punitive Interventions before Sovereignty’ in MD Dubber (ed), Foundational Texts in Modern Criminal Law (Oxford, Oxford University Press, 2014); H Leawoods, ‘Gustav Radbruch: An Extraordinary Legal Philosopher’ (2000) 2 Washington University Journal of Law & Policy 489; and F Kantorowicz Carter, ‘Gustav Radbruch and Hermann Kantorowicz: Two Friends and a Book – Reflections on Gnaeus Flavius’s Der Kampf um die Rechtswissenschaft (1906)’ (2006) 7 German Law Journal 657. 13 Vormbaum (n 8) 146–49. 14 H Kantorowicz, ‘Some Rationalism about Realism’ (1934) 43 Yale Law Journal 1240, 1241. 15 H Kantorowicz, Definition of Law (Cambridge, Cambridge University Press, 1958) 79.

Takikawa and Legal Autonomy  233 is to be maintained’.16 This ‘general character’ can be applied to specific cases. Thus, scientific approaches are possible, even necessary, in order to ensure the egalitarian principle. In Kantorowicz’s legal science, there are strong elements of modern natural law, which form a link with the Classical School and with Takikawa’s criminal law theory. The impact of the Free Law Movement in Japan was not exactly the same as in Germany, and Takikawa was not always its uncritical supporter. Nevertheless, Takikawa found irresistible its emphasis on autonomous jurisprudence and its efforts to incorporate diverse human needs into criminal law. Takikawa’s theory therefore exhibits an unmistakable influence of that movement. In Japan the ‘extra-legal’ aspect of the Free Law Movement was promoted by Makino in the area of criminal law. In 1914 Makino asserted that judges should interpret the written law more freely, including by analogy, so that decisions would satisfy the needs of contemporary society even if they might violate some provisions of the written law, thus openly rejecting the principle of legality.17 In Europe, the Free Law Movement was seen as a threat to traditional legal thought and practices and triggered fierce debate, but this debate was largely restricted to the area of private law, and to a lesser degree to public law. In the area of criminal law, no call was made on judges to use discretion to a degree where they could ignore the principle nullum crimen sine lege, until the Nazi regime began to remove the principle from criminal law.18 In Japan, however, aided by Makino’s advocacy, the assault on the principle of legality in criminal law was comparatively swift and far-reaching.19 Some scholars blame the intellectual flexibility of the Free Law Movement for having facilitated the breakdown of the rule of law under the Nazi regime.20 A similar charge may be directed against Japanese wartime jurists who also interpreted the law too freely. ­Nevertheless, how the jurist responds to such flexibility and uses it in his scholarship is a deeply personal matter. Within the Free Law Movement individual philosophy, moral ­principles and ideology shape legal theory, irrespective of its actual application. It is however in criminal law that the contraction of theory under fascist regimes may be most noticeable. This is because criminal law is deeply intertwined with the social structure and culture of each nation. Criminal law is highly ideological. In its attempts to regulate the behaviour of an individual, it is most susceptible to bureaucratic control. Therefore, it is not

16 Kantorowicz, ‘Some Rationalism about Realism’ (n 14) 1241. 17 Makino, ‘Rekishiteki Jijitsu to shite no Hōritsu to Shakaiteki Kihan to shite no Hōritsu’ [‘Law as Historical Facts and as Social Norms’] in Kaoru Nakada (ed), Miyazaki Kyōju Zaishoku Nijū-go nen Kinen Ronbun shū [Essays in Honour of Professor Miyazaki] (Tokyo, Yūhikaku, 1914). See also Nakayama, ‘Makino Eiichi no Keihō Riron’ (n 11) 88. 18 See Vormbaum (n 8) 184. Until around 1919 Takikawa accepted the use of analogy under Makino’s influence (see Naitō (n 4) 301) but later rejected it in his 1936 article: Takikawa, ‘Hanzai no Bōei ka Han’nin no Magna Karuta ka?’ [‘Defence against Crime or the Magna Charta of the Criminal?’] (1936) 18(11) Kaizō, now in Shigemitsu Danō et al (eds), Takikawa Yukitoki Keihō Chosaku Shū [Collected Essays of Takikawa Yukitoki on Criminal Law] ­(hereafter TYKCS) vol 4 (Kyoto, Sekai Shisōsha, 1981) 63. 19 Takikawa speculates that this was due to lower professional conviction in the principle in Japan: Takikawa, ‘Hanzai no Bōei ka Han’nin no Magna Karuta ka’ (n 18) 64. 20 See JM Kelly, A Short History of Western Legal Theory (Oxford, Clarendon Press, 1992) 360–61; and O Behrends, ‘Von der Freirechtsbewegung zum konkreten Ordnungs – und Gestaltungsdenken’ in R Dreier and W Sellert (eds), Recht und Justiz im ‘Dritten Reich’ (Frankfurt, Suhrkamp, 1989) 38. Note also HP Graver, Judges Against Justice: On Judges When the Rule of Law is Under Attack (Berlin, Springer, 2015) 222; and compare Curran, ‘Rethinking Hermann Kantorowicz’ (n 12) 80.

234  Hiromi Sasamoto-Collins surprising that one of the first jurists to be persecuted by the Japanese government was a criminal law professor with a staunch commitment to the law’s autonomy. Focusing on criminal law, my interest therefore is in the legal theories of a dissident Japanese scholar as these may allow us to identify competing definitions of legality and the ideological principles which a fascist state wants to eliminate. In this way we may observe one example of the making of unicity in the legal domain.

The Takikawa Incident and the Attack on Dissent Yukitoki Takikawa (1891–1962) was a Japanese lawyer and professor of criminal law who in the 1920s helped to lay the foundations for the development of Japanese theories of modern criminal law largely based on German jurisprudence. Such theory adopted the Germanorigin tripartite system, active in many civil law countries, including Italy and Spain. In this theory, for an act to be punishable, it has to satisfy three basic requirements: unlawfulness (Rechtswindrig); guilt or blameworthiness (Schuld); and fulfilment of the statutory elements of a crime (Tatbestand).21 The development of the tripartite system was largely influenced by the rise of legal positivism in the nineteenth century, an approach taken from natural sciences but also in response to the increasing importance of state law. Nevertheless, the Enlightenment’s penchant for rationalism and the secularisation of legal theory, and the Kantian distinction between legality and morality were also fundamental to the foundations of the tripartite system. Takikawa was one of the first jurists to adopt this framework and introduce the German concept of Tatbestand into Japanese criminal jurisprudence. Exactly how unlawfulness and the violation of Tatbestand, the statutory elements of a crime, differ from each other constitutes a major question in this theory. Equally important is the interaction between guilt and Tatbestand. Nevertheless, the admission of these concepts encouraged a new generation of Japanese criminal law scholars to scrutinise the purpose and remit of criminal law with unprecedented precision, advancing the study of criminal law as a distinctive discipline. The act, the mens rea and statutes were always central to determining criminality in many traditions, but they were not always separated from each other.22 Identifying them as distinct from each other in an interlocking scheme would highlight inherent tensions in criminal law and alert criminal lawyers to the necessity of theory. Such awareness was especially important in Japan for developing modern criminal law, where two of the key principles that underline modern natural law – law as a process of checking and constraining political power and law as a means of protecting individual liberties – were poorly developed.23 Takikawa’s criminal law theory, especially his ideas of legality, culpability and political crime, was informed by this new trend. The acceptance of the distinctions between

21 Hiroshi Oda, Japanese Law (London, Butterworths, 1992) 392. See also A Eser, ‘Justification and Excuse’ (1976) 24 American Journal of Comparative Law 621. 22 Note Eser (n 21) 623. 23 See Eiko Ikegami, The Taming of the Samurai: Honorific Individualism and the Making of Modern Japan (London, Harvard University Press, 1995) 156–57; DF Henderson, ‘The Evolution of Tokugawa Law’ in JW Hall and MB Jansen (eds), Studies in the Institutional History of Early Modern Japan (Princeton, NJ, Princeton University Press, 1968); and C Steenstrup, A History of Law in Japan until 1868 (Leiden, Brill, 1991).

Takikawa and Legal Autonomy  235 unlawfulness, guilt and Tatbestand enabled him to produce an extremely apt and effective critique of existing Japanese criminal law. Takikawa was born in Okayama Prefecture, central Japan, to a former samurai family. He entered the law school of Kyoto Imperial University in 1912, and worked as a judge before becoming an assistant professor at Kyoto in 1918. Legal education in Japan in the Meiji period (1868–1912) relied heavily on foreign teachers and textbooks. By the time ­Takikawa became a law student, however, legal education was largely conducted by homegrown teachers and the textbooks they produced. Nevertheless, Japanese scholars remained highly alert to legal developments in Europe and elsewhere. Many of them would go abroad, e­ specially to Germany, to finish their education. At Kyoto, Takikawa was taught by Kanzaburō Katsumoto (1866–1923), one of the leading advocates of the Italian school of criminology in Japan, who had studied under Lombroso. Takikawa however decided to go to Germany, and studied under ME Mayer at the University of Frankfurt from September 1922 until the latter’s death in June 1923. When Takikawa resumed his teaching at Kyoto in 1924, Japan was in the throes of intense political and intellectual ferment, and university campuses were major flashpoints. Initially legal education was for producing national bureaucrats, as university education as a whole was thought to serve ‘the interests of the state’. However, the expansion of university e­ ducation and the development of home-grown legal scholarship began to produce professors and students who claimed the autonomy of their discipline and saw Japanese society and politics more critically. This new assertiveness intensified after the First World War when ­Marxism became popular among young scholars and students. The g­overnment’s response was pragmatic compromise but also involved intensifying surveillance. It conceded to the introduction of universal male suffrage in 1925, but also introduced the Peace ­Preservation Act, which made having the mere intent to ‘change the national polity and deny the private property system’ a punishable offence.24 On 15 March 1928 shortly after Japan’s first general election under male universal suffrage, police arrested about 1,600 people, many of them university students and members of the illegal Communist Party, by invoking the Peace Preservation Act. Several university professors, who taught economics and social sciences, were forced to resign from their posts for their connection with the Party. Takikawa was not a member of the Communist Party, but remained a vocal defender of academic freedom, university autonomy and open internationalism. He was the official adviser to the university’s influential Debating Club organised by students who would invite well-known Marxist scholars. He opposed the introduction of military training in the curriculum in 1925, together with his colleagues. He was also an adviser to the society of Chinese students studying at Kyoto at that time.25 He openly defended those students who were arrested during the major communist crackdowns. Nevertheless, none of his activities seems exceedingly radical or subversive. He was a liberal professor at an elite university. He received no overt pressure from the government to curb his activities until 1933. His professorship was that of a prestigious government appointee (chokunin), and he was a member 24 See H Sasamoto-Collins, ‘Facilitating Fascism?: The Japanese Peace Preservation Act and the Role of the ­Judiciary’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015). 25 Takikawa, Gekiryū (n 4) 51.

236  Hiromi Sasamoto-Collins of the higher civil service examination board. His academic life was both typical within his own group and successful in many ways. However, university professors in social sciences were already a target of police surveillance, especially after the 15 March crackdown in 1928.26 In July 1931, the Education Ministry established a team to study ‘thought problems’, and study why so many students were attracted to Marxism. After the Japanese army’s invasion of Manchuria in 1931, Japanese communists aligned themselves with the Soviet-led Communist International (Comintern) which condemned the Japanese action as imperialism. The government’s crackdown on communists intensified. Such suppression coincided with the rise of what Robert Paxton describes as ‘an expansionist military dictatorship’ in Japan in the 1930s.27 Amid Japan’s increasing international isolation, alignment with Nazi Germany and Mussolini’s Italy, and the demise of party politics, new alliances were being formed among the military, national bureaucrats and radical nationalist ideologues. The objectives of each group were not exactly the same, yet they were united in their extreme hatred of the Left (this despite the strong influence of communism and socialism on their thought), and also in their extreme nationalism, reformist zeal, idealisation of the country’s past, expansionist policy, calls for national unity, and anti-modernist and anti-individualistic rhetoric. In this spirit the government in 1932 set up the Kokumin Seishinn Bunka Kenkyūjo (The People’s Spirit and Culture Research Institute) under the jurisdiction of the Education Ministry, to develop a counter-theory to Marxism. Notions of the Japanese Spirit or Japanism (Nihonshugi) were crafted to counter Marxist thinking. With the government’s increasing leaning towards radical nativist ideology,28 the targets of the police crackdowns were mainly social scientists and economists who were directly involved in Marxist theory in their teaching or political activities, but they also extended to those in other areas of the humanities. During one such crackdown in October 1932, the 150 arrested communists included a judge at Tokyo District Court and four other employees at the Court. The case was sensationally exploited as the ‘Red Judge Case’. Some law professors became a target for right-wing charges that it was their legal philosophy that was responsible for the politicisation of the legal profession. The condemnation of Takikawa, which was initiated by right-wingers and picked up by the Education Ministry, took place in this context. In February 1933, Yutaka Miyazawa, a member of the House of Representatives with connections to the radical fundamentalist group Genri Nihonsha (True Japan ­Society), demanded that university professors who were communist sympathisers should be dismissed.29 He singled out four professors, three of whom were law professors: Makino for 26 Marshall (n 4) 145. Many well-known Marxist professors, including Yoshitarō Ōmori (1898–1940) at Tokyo Imperial University, Hajime Kawakami (1879–1946) at Kyoto, and Hiroo Sassa (1897–1948), Tomoyuki Ishihama (1895–1950) and Itsurō Sakisaka (1897–1985) at Kyushu Imperial University, were forced to resign after the 15 March 1928 crackdown. 27 RO Paxton, The Anatomy of Fascism (London, Penguin Books, 2004) 200. 28 On Japanese nationalistic ideology including hōnin ichinyo (the unity of Japanese people and their land), a Japanese equivalent of the Nazi Blood and Soil programme, see JW Dower, War Without Mercy: Race and Power in the Pacific War (London, Faber, 1986) 265; and Takashi Itō, ‘Kyokoku Itch Naikakuki no Seikai Saihensei Mondai’ [‘The Political Realignment of the Period of Unity Government’] (1972) 24(1) Shakai Kagaku Kenkyū 23–24. On Hōnin ichinyo and the anti-individualistic outlook of Takikawa’s opponents and the Japanese Law Movement during the war see Deguchi, ‘Ono Seiichirō’ (n 11) 305–15; and Uchida (n 4) 145–46. 29 Matsuo (n 4) 83, 87; and Marshall (n 4) 158.

Takikawa and Legal Autonomy  237 stating that the Acts on Land and Building Leases (1921) restrict the right to ownership; Izutarō Suehiro (1888–1951), a professor of labour law, for encouraging tenant farmers to unite and seek the revision of the Tenant Law which favoured landlords; Hiromi Arisawa (1896–1988), for using Marx’s work, such as Wage Labour and Capital, and the work by the Soviet revolutionary theorist Nikolai Bukharin (1888–1938) in his classroom teaching; and Takikawa. All taught at Tokyo Imperial University, except Takikawa.30 Miyazawa criticised a lecture Takikawa gave at another university in the previous year about Tolstoy’s views of crime and punishment. In his Resurrection, the Russian author indicates that punishment should not be society’s revenge on the criminal; the criminal should be treated more humanely with compassion and understanding. He also describes judges unflatteringly as preoccupied with personal matters and unconcerned with the predicament of the defendant. Miyazawa attacked Takikawa for introducing Tolstoy’s ideas sympathetically, which he alleged to be an insult to the judiciary and as advocating anarchism. Miyazawa also criticised one of Takikawa’s books, Keihō Dokuhon (A Criminal Law Reader), a commentary on criminal law for a popular readership, for advocating socialism. Keihō Dokuhon was based on weekly lectures Takikawa gave on the radio for three months from January 1932 for the Public Broadcasting House NHK at its Osaka studio. After Miyazawa’s speech in Parliament, Education Minister Ichirō Hatoyama pressured the university to dismiss Takikawa. The law faculty resisted, students protested and the president of the university also refused to dismiss Takikawa.31 In April, the Home Affairs Ministry banned Keihō Dokuhon and his Keihō Kōgi (A Commentary on the Criminal Code), first published in 1929 and revised in 1930, under the 1893 Publication Law, for violating the public peace and order. Takikawa’s case was then referred to the Bunmin Kōtō Bungenn Iinkai (Committee concerning the Positions of Higher Civil Service Personnel), a seven-member committee led by the Prime Minister, which included a member of the Privy Council, the president of the Daishin’in (the present-day Supreme Court in Japan), and the head of the Administrative Court.32 The committee concluded that Takikawa was Marxist. The Education Ministry suspended Takikawa from his post in May, and he was formally dismissed in July.33 The committee’s report is divided into two sections: the first is devoted to demonstrating that Takikawa’s criminal law theory is Marxist; and the section identifies his treatment of three specific topics as subversive and against the country’s ‘pure and beautiful traditions’. These are the crime of internal disturbance (nairan-zai), acts of adultery and parricide.34 30 Transcripts of the 7th Meeting of the Budgetary Committee of the House of Representatives, the Imperial Diet, during its 64th Annual Session, 1 February 1933, published by the House’s Secretariat in Tokyo 2 February 1933, 1–46, available at: teikokugikai-i.ndl.go.jp. 31 Marshall (n 4) 147–57. After Takikawa’s dismissal, all 16 professors of the Law Faculty at Kyoto University submitted their letters of resignation in protest, but eight later withdrew them and resumed teaching (Marshall (n 4) 153). 32 Established in 1931 to protect high-ranking government appointees, including professors at national universities, from political dismissal, the committee became a rubber-stamp body to dismiss those who were thought to be ‘troublemakers’ for the government. Between 1933 and 1939, it dealt with seven cases, three concerning political views, including Takikawa’s case, and four concerning mental illness or bad behaviour. See Matsuo (n 4) 132. 33 After the dismissal and during the war, Takikawa continued to practise as a criminal lawyer. After the war he returned to Kyoto University in 1946 as dean of the law faculty, was elected as the first president of the Criminal Law Society of Japan in 1948, and in 1953 became the president of Kyoto University. 34 The report, which was not disclosed to Takikawa or the public, is preserved in the National Archives of Japan in Tokyo.

238  Hiromi Sasamoto-Collins The main accusation against Takikawa was that he was in sympathy with communist activities. His view that crime cannot be reduced by punishment alone but requires the reform of the economic system, for instance, was taken as evidence that he supported ­Marxist ideology. The committee’s report quoted the following passage as evidence: Crimes are inevitable phenomena akin to illness, poverty, suicide, unemployment, and prostitution which derive from defects of social structure … The battle with crime should be part of a reform of the economic structure of society. To think that punishment is sacrosanct is merely highly conservative and even reactionary.35

Discussing the provisions against internal disturbance, Takikawa defended the motives of those who engaged in revolutionary activities. For him, [t]hey attempt to destroy the present system in order to create a happier society. If they succeed, they will become the rulers … If we take a longer and broader perspective, they are punished not because their motives and actions are wrong but because they are defeated.36

Such statements were found to be highly suspect as was his view that self-defence is a ­universal right inherent in every man and woman, which can be applied to all social institutions.37 Another major accusation against Takikawa was that he was advocating the dissolution of the traditional family system. In his work, Takikawa criticised the existing laws of adultery, and this was also singled out by the committee as an offence. Under the relevant criminal law, only wives were punished for adultery. The wife charged with adultery could be imprisoned, while there was no such punishment for an adulterous husband. Takikawa criticised this provision as unfair to women.38 He went on to advocate the decriminalisation of adultery altogether, saying that adultery concerns morality, and the law should not interfere. This proposal was also interpreted as immoral. Takikawa also criticised the law of parricide. The law of parricide punished descendants who killed their parents or grandparents more severely than the converse or in cases in which the parties were not related. Takikawa recommended the abolishment of this law, saying that the law was unfair to younger members of the family and would create an artificial and confusing situation in family life.39 Both the laws of adultery and parricide were abolished after the Second World War under the new Constitution, the former by the revision of the Criminal Code in 1947, and the latter by its 1995 revision. However, in the late nineteenth century, for the newly centralised Japanese government the family was an administrative unit, and patriarchy and primogeniture were two of its main components. At the turn of the century when industrialisation and mass education made Japanese society appear more divisive and unruly, the bureaucrats and traditionalists would extol the idea of the family as a stabilising social institution.40

35 Takikawa, Keihō Kōgi, rev edn (Kyoto, Kōbundō, 1931) 1. 36 Takikawa, Keihō Dokuhon (Tokyo, Ōhata Shoten, 1932) 125. 37 Takikawa, Keihō Dokuhon (n 36) 97; and Matsuo (n 4) 9. 38 Takikawa, Keihō Dokuhon (n 36) 142–43; Takikawa, Keihō Kōgi (n 35) 264; Takikawa, Keihō Kakuron [The Special Part of the Criminal Code] (Kyoto, Kōbundō, 1931) 31–32. 39 Takikawa, Keihō Kōgi (n 35) 203; Takikawa Keihō Kakuron (n 38) 400. 40 C Gluck, Japan’s Modern Myths: Ideology in the Late Meiji Period (Princeton, NJ, Princeton University Press, 1985) 189.

Takikawa and Legal Autonomy  239 In the 1930s, when economic difficulties, a series of attempted coups and foreign wars intensified domestic anxieties and disorder, it became urgent for the bureaucrats to tighten social control and surveillance. Any suggestion about dissolving this micro-level administrative structure, either the more equal treatment of family members or the decriminalisation of some behaviour, would be anathema to the establishment. As criminal law concerns social conduct, it was inevitable that Takikawa’s liberalism met its strong rebuke.41 Takikawa also asserted that subjective states alone cannot be used to bring a criminal charge. Loyal to the Classical School, he emphasised the importance of concrete evidence in prosecution. Referring to the crime of lèse-majesté, he said that it could not be committed by merely thinking about it. For instance, it is questionable whether or not the crime of lèse-majesté can be established just because the subject makes a passing remark in his diary.42 Such comments posed a threat to the law enforcement authorities who had now begun to override earlier procedures in criminal investigation, aided by the introduction of the Peace Preservation Act. The Act not only weakened the principle of legality and altered substantive criminal law, but also facilitated the government’s recourse to criminal law to shape the civic moral framework. In 1926 it had attempted to revise the Criminal Code of 1907 in order ‘to maintain good morals and manners’ (junpū-bizoku), ‘paying special attention to crimes concerning moral principles such as loyalty and filial piety’.43 Although the plan was aborted, it signalled a change in mood among policymakers towards the rejection of many of the values that Takikawa’s theory stood for, such as the freedom of the individual, the autonomy of jurisprudence, and the separation of legality and morality. His persecution was both an immediate consequence of the government’s crackdown on communism and a clear sign of the decline of criminal law theory in Japan. Takikawa resisted that decline and his work ran directly counter to the ideological preferences of the regime. The persecution of Takikawa took place when calls for national unity were growing among the military, bureaucrats and ideologues. One effective way to create that unity was to identify and attack those who appeared to be incompatible with it. Communists and their supporters fitted the bill. To create this fictional vision of unity the emerging rightwing elite needed ‘enemies within’ or pseudo-foreigners, arbitrary but effective markers to identify those who would threaten the stability of the country. In this process they mobilised the notion of ‘moral principles’ (dōgi) which they claimed to be unique to the country. To question the good intention of the state and the values of the traditional family system and expose the seriousness of the socio-economic problems of the country was thought to be un-Japanese, immoral and dangerous. By linking one’s inner thought and behaviour to state policy, the emerging ruling elite attempted to subvert the individual’s self-identity and to silence substantive criticism. Takikawa’s case was an opportunity for them, and it gave ample warning as to the limits of academic freedom. The case prompted the government and right-wing agitators such as

41 Masao Fukushima, Nihon Shihonshugi to Ie Seido [Japanese Capitalism and the Family System] (Tokyo, Tokyo University Press, 1967) 280. 42 Takikawa, Keihō Dokuhon (n 36) 124. 43 Quoted by Chihiro Saeki and Yoshinobu Kobayashi, ‘Keihō Gakushi’ [‘A History of Japanese Criminal Law’] in Nobushige Ukai et al (eds), Kōza Nihon Kindaihō Hattatsushi [The History of the Development of Modern Japanese Law], vol 11 (Tokyo, Keisō Shobō, 1960) 268–69.

240  Hiromi Sasamoto-Collins Muneki Minoda of Genri Nihonsha to intervene in academic freedom even more directly through the invocation of the Peace Preservation Act and Publication Laws, and also encouraged a climate of verbal and even physical intimidation. Byron Marshall thinks that the Takikawa case is extremely important as it ensured the silence and self-censorship of many university teachers.44 Nevertheless, Takikawa upheld the modern natural law principle that everyone should be treated equally before the law and the Enlightenment notion of criminality that inward thought alone is not enough to justify punishment. A criminal law theory based on these principles was directly antithetical to the notion of legality of the emerging military dictatorship, which claimed that the law was a unilateral order. Fascist law deprives individuals of their fundamental rights, and simultaneously assigns them to a monolithic structure. In this process, the various boundaries which allow individuals to protect their inner life are lifted. The fascist centripetal movement intends to erase individual autonomy. In this process unicity and the erasure of the liberal legal order come hand in hand.

Origins and Application of Takikawa’s Criminal Law Theory Takikawa adhered to some of the basic principles of modern criminal law, such as due process and the principle of legal equality, at a time when state-centred formalism and the popularity of dogmatic positivism began to reject them. Where did his liberal theory come from? The influence of neo-Kantianism on Takikawa through his German mentors ME Mayer and Berthold Freudenthal (1872–1929), both of whom were among those associated with the Free Law Movement, is at least as palpable as Feuerbach’s liberal criminal law and the Marxism which was influencing Japanese intellectuals after the First World War. Takikawa shared with these German neo-Kantian jurists the Kantian dualist theory that fact and value are separate. He also accepted the Kantian epistemology that our knowledge is limited, but that we are also responsible for shaping and testing it. For Takikawa, law constitutes part of an open-ended epistemological world; the legal system is never complete. A statute is always a practical compromise, as there remain perpetual gaps between reality and the ideal, secure and unsecure knowledge. His underlying claim that criminal law has limits in regulating people’s behaviour therefore has Kantian overtones, and this considered scepticism of the efficacy of criminal law was not only a sharp affront to the government, but deeply antagonistic to Makino’s positivism and Ono’s idea of the ‘moral state’. Especially influential and potentially subversive was the notion of cultural norms advocated by Mayer.45 Mayer asserted that there are regulative norms apart from state-sanctioned

44 Marshall (n 4) 157–59. On Takikawa’s recollection of harassment see Gekiryū (n 4) 125–27. Minobe, another dissident law professor, was attacked by a right-wing activist in 1936: Saburō Ienaga, Minobe Tatsukichi no Shisōshi teki Kenkyū [A Study of Tatsukichi Minobe’s Thought] (Tokyo, Iwanami Shoten, 1964) 352. 45 ME Mayer, ‘Rechtnormen und Kulturnormen’ (1903) and ‘Rechtsphilosophie’ in Enzyklopädie der Rechts und Staatswissenschaft von Kohlrausch, Kaskel und Spiethoff (1922). Note also Naohira Takeda, ‘ME Maiyā no Bunkakihan setsu’ [‘Cultural Norm Theory of ME Mayer’] (1957) 6(2–3) Hōgaku 39; and Shizuko Katsura, ‘Max Ernst Mayer (1875–1923)’ (1953) 59(2) Hōgaku Ronsō 11. See also Takikawa, ‘Keihō’ [‘Criminal Law’] in TYKCS, vol 5, 71 (originally (1951) 23(4) Hōritsu Jihō); and ‘Kihanteki Sekininron ni okeru Kitai Kanōsei’ [‘Normative Responsibility and Zumutbarkeit’]’ in TYKCS, vol 5, 365–66 (originally (1950) 11(1) Kōhō Zasshi).

Takikawa and Legal Autonomy  241 ones, which affect our behaviour. Such supra-state norms may be religious, moral, customary, or occupational. These norms cannot be entirely subsumed under state law. On the contrary, for state law to be enforceable, it should be anchored by these non-institutional forces. Mayer was interested in how these cultural norms interact with legal norms, especially the role of value judgement in this process. The idea of crime and a real event are thus connected with each other by human judgement, but in a fashion that is both sociological and jurisprudential. Mayer’s norm theory heightened Takikawa’s awareness of legal autonomy. Thus ­Takikawa translated Mayer’s Kulturnorm as jōri, which was an old Japanese word and can be roughly translated as natural reason.46 The violation of cultural norms to Mayer was the violation of jōri (natural reason) to Takikawa.47 Takikawa’s take on the German tripartite theory therefore has a strong natural law connotation. At the same time for him jōri concerned material ‘living conditions’ and ‘the protection of interests attached to one’s life and living (seikatsu ri’eki)’. Those interests refer to ‘life, body, honour, property, abode, and privacy’ of each person,48 and must be protected by criminal law, where jōri must provide the standards of behaviour for each person not to violate such interests of other people. For him, jōri or cultural norms are crucial factors to assess the validity of state law. Takikawa recognised criminal law’s function to restore personal and social justice, while adhering to the inviolability of basic personal rights based on Feuerbach’s liberal theory. For ­Takikawa, legal science, the sociology of the law and the principle of equality under the law were intertwined. The core of Takikawa’s theory is the view of a human being as a unique entity, a willingness to question the validity of state law and adherence to the principle of legal equality, and these points set Takikawa apart from Makino and Ono. He was a thoroughly ­Japanese jurist who worked within its legal system, but his outlook and intellectual orientation were distinctively cosmopolitan. Takikawa was method-oriented and believed in the value of autonomous criminal jurisprudence. For him critique was a normal part of academic life, since no legal system was perfect and jurists should strive to articulate its shortfalls as clearly as possible. Hence he articulated a warning against the forces of unicity in his own country. He was also able to produce lucid and pithy statements which were accessible to ordinary men and women. This ability was a major threat to the government. Methodological commitment, a liberal world-view and also a sympathy with Marxist criticism of a capitalist society and class oppression, underpinned Takikawa’s criminal law theory, and made him averse to the state monopoly of legal thought and practice. On each of these, the impact of the Free Law Movement is apparent. Key aspects of Takikawa’s thought however combine the influences of both the C ­ lassical School and the Free Law Movement, and include the claim that the act, not intention alone, is subject to censure under criminal law, as well as issues involving cause-and-effect relationships in criminal law and legal science, the issue of criminal responsibility and the issue of political crime. The influence of the Modern School is also palpable. However, he rejected many claims by Japanese positivists such as Makino. His theory also evolved through time,



46 Takikawa,

Keihō Kōgi (n 35) 53. 83. 48 Naitō (n 4) 306. 47 ibid

242  Hiromi Sasamoto-Collins but Takikawa was consistent with his humanist position. In all cases, Takikawa’s commitment was to jurisprudence, not to criminology, and to an assertion of the law’s independence, especially at a time of uncertainty over the foundations of the legal system. We will now look more fully at key aspects of his thought as they contributed to his ostracism.

A.  Offenders by Conviction For Takikawa, as we have seen, criminal law does not interfere in the inner thought of the individual. This is one of the key assertions of the Classical School, and is based on the concept of the person as a unique agent of intention, reflection and choice. Those ­advocates of the Free Law Movement, such as Mayer, Freudenthal and Kantorowicz, expanded the meaning of human subjectivity considerably in the determination of culpability, introducing various normative factors into theory, but also taking into account those hitherto outside criminal law. However, they did not abandon the person-based outlook of the Classical School, as opposed to the society-based outlook of the Modern School.49 In this spirit Takikawa insisted that punishment under criminal law is not a set of measures intended merely to preserve public peace. The Modern School, meanwhile, according to Shigemitsu Dandō, did not see any essential difference between punishment under criminal law and measures of security.50 According to the Modern School, criminal law was an instrument to defend society. The development of industrialisation intensified urbanisation, and economic and social instabilities in the late nineteenth century. How to solve these problems, crime in particular, became an urgent social and political issue. The development of technology and scientific approaches also encouraged legal practitioners to adopt some of these methods in approaching crime.51 Under the strong influence of Darwinism, Lombroso asserted that criminals were genetically conditioned to behave violently. Enrico Ferri (1856–1929) on the other hand claimed that people commit crime not only because of their genetic conditions but also because of the physical and social surroundings of the criminal. Both called for more empirical approaches based on observation. In one sense theirs were attempts to capture and deal with the realities of a human being and his existence in an increasingly complex society. But their views were largely deterministic, and reflected the increasing bureaucratic need for social control in a fluid society. For them criminal law was first of all an instrument of social control and defence. Ferri criticised the notion of free will as an illusion, rejecting the Classical School’s emphasis on the moral responsibility of the criminal.52 Punishment should not be based on a primitive, instinctive view of retribution, but be based on a clear objective of social defence and effective methods. From this perspective, they proposed, for instance, to classify criminals, not crimes, according to the degree of their

49 H Kantorowicz and EW Patterson, ‘Legal Science – A Summary of its Methodology’ (1928) 28 Columbia Law Review 679, 689. 50 Dandō, Keihō Kōyō Sōrōn [A General Theory of the Essence of the Criminal Law] (Tokyo, Sōbunsha, 1990) 603. Compare Pifferi (n 10) for discussion of diversity among penal reform movements. 51 Note Garland (n 9) 20. 52 See E Musumeci, ‘The Positivist School of Criminology and Italian Fascist Criminal Law’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015) 40–41.

Takikawa and Legal Autonomy  243 anti-social character. They sought to find the causes of crime in the particular nature of the criminal. The Modern School’s attack on the Classical School’s view of the individual as too abstract reflects the deepening understanding of human realities, which began to be unlocked by the new sciences, but with the risk of erasing some of the key principles established earlier to protect the individual from the arbitrary use of power by the state and from coercive social power. Such a risk was acute in Japan where the idea of law as a means of protecting individual liberties was not long established, while the new centralisation of the state structure and rapid industrialisation made the idea look unrealistic and irrelevant. In Japan, because its focus was on the criminal, the Modern School was also thought to advocate ‘subjective’ criminal law, as opposed to the ‘objective’ criminal law of the Classical School. It became extremely influential in the country in the early twentieth century,53 and one of its leading advocates Makino claimed that punishment should serve the purpose of rehabilitation. Takikawa strongly objected to Makino’s view. In a repudiation of the policy of using criminal law for educational purposes, Takikawa introduced the concept of Überzeugungsverbrecher (the offender by conviction) proposed by Gustav Radbruch in 1923. Offenders by conviction are ‘criminals who commit a crime because of their moral, religious, and political convictions’.54 According to Radbruch, offenders by conviction should be given lighter sentences than for ordinary crimes, such as confinement for a short period without labour. The offender by conviction is not a common criminal. He commits a crime because he is loyal to values other than those of the state. He is not a lunatic. On the contrary, he possesses the intellectual ability to enquire into many essential questions, scientific, cultural, ethical, religious, or political. Because of the distinctive motivation of the offender by conviction and the strength of his character, Radbruch asserts that offenders by conviction should be treated separately from ordinary offenders. Radbruch’s proposal was criticised, especially by such criminologists as Moritz­ Liepmann (1869–1928) for dubious discrimination.55 However, Takikawa agrees with Radbruch that it is not permissible to attempt to change an offender’s convictions through correctional measures nor should the state attempt to criminalise moral and political belief. Criminal policy has its limits in altering people’s inner thought.56 Society has to detain political criminals in order to protect itself, but this is not the same as punishing them for their beliefs. Criminal law should leave ‘the inner man’ intact. Such opinions imply a vision of society as ideologically pluralistic. Some people may have beliefs and values different from those endorsed by the state or the majority of society. The state has to deal with their activities if their activities transgress the boundaries beyond which social peace may be threatened. However, they have the right to believe in whatever they may think just, even if their beliefs may challenge the values of the state and the majority of society. It is wrong to deny them such a right. Takikawa feels that an emphasis on rehabilitation not only threatens individual freedoms but also the principle of legality, in that the perceived merit of an educative goal could imply

53 Takikawa, Gekiryū (n 4) 26–29. 54 Takikawa, ‘Kakushinhan to Kyōikukei’ [‘The Offender by Conviction and Punishment as Education’] in TYKCS, vol 4, 608 (originally in (1931) 25(4) Hōgaku Ronsō). 55 See RF Wetzell, Inventing the Criminal: A History of German Criminology, 1880–1945 (Chapel Hill, NC, University of North Carolina Press, 2000) 109–15. 56 Takikawa, ‘Kakushinhan to Kyōikukei’ (n 54) 611.

244  Hiromi Sasamoto-Collins the need to avoid limits on appropriate measures.57 Punishment as education however has much larger implications, and Takikawa quotes Karl von Birkmeyer: The principle of legality (nullum crimen sine lege) was won after the bitter experiences and difficult battles of the 18th century. This principle will be taken away from us again in the 20th century, and the individual will be handed over to the unlimited authoritarian rule of government in the name of crime prevention.58

Takikawa agrees. Education and law should not be fused. Abandonment of the principle of legality may herald the arrival of a police state. Takikawa also criticises Makino for claiming that political criminals or offenders by conviction are deviants from accepted norms of behaviour. Takikawa disagrees and says that offenders by conviction are a phenomenon that characterises a society which is changing. Such offenders are a real reflection of social realities. If a criminal theory treats them as ‘deviant’, such theory is untenable. Takikawa thinks that law transcends the state. The state is an organisation with its own political ideology, which in his time reflects the power of capital and the bourgeoisie. Many offenders by conviction do not share that ideology: It is not possible to teach offenders by conviction that the principle of the state is correct, for they are convinced that the principle is wrong. It may be possible to threaten them or remove them from society, but it is impossible to teach them that the principle of the state is superior to theirs.59

To claim that punishment is education is not viable in a pluralistic society where some people may disagree with what the state proclaims. By contrast, Makino did not believe that basic rights, such as the right to life, are inherent in each person, but believed that these rights derive from the spirit of Japanese communal life, manifested in past imperial proclamations and supported by family relations and the state’s endorsement.60 Makino’s advocacy of punishment as education suggests a strong Confucian ethos, but also evolutionary theory and an extremely optimistic view of state power. Makino claimed that the world was moving away from the era of the Rechtssaat towards that of the Kulturstaat, where people are bound together not by a legal system but by cultures unique to a people or race. He asserted that in this climate the view of criminal law as ‘The Magna Charta of the criminal’ must be abandoned, and criminal law must be given a more active role in educating and guiding the people.61 By ‘culture’, Makino had in mind the harmonious family, a deferential but hierarchical social order, and the paternalistic role of the state.62 To Makino, the question of how ‘to create a barrier between the spheres of criminal policy and law’, which was so dear to some advocates of the Modern School, including Liszt,63 seems to have no appeal. His view of the oppressive legislation which was enacted before his own eyes is extremely lax. Makino acknowledges that the

57 ibid 617. 58 ibid. On the Makino–Takikawa debate see Uchida (n 4) 123. 59 Takikawa, ‘Kakushinhan to Kyōikukei’ (n 54) 620. 60 Uchida (n 4) 121–22, 279. 61 Makino, Keihō no Sanjūnen [30 Years of the Criminal Code] (Tokyo, Yūhikaku, 1938) 195–97. 62 Kazuhiko Tokoro, ‘Makino Eiichi’ in Toshitaka Ushiomi and Nobuyoshi Toshitani (eds), Nihon no Hōgakusha [Japanese Jurists] (Tokyo, Nihon Hyōronsha, 1974) 261–63. 63 Vormbaum (n 8) 176.

Takikawa and Legal Autonomy  245 Peace ­Preservation Act punishes offenders by conviction or political criminals extremely severely, but for him the Act involves not the curtailment of civil liberties but is an example of the failure of a policy of education. When new targeted legislation, the Act to Protect and Supervise Offenders by Conviction (Shisōhan Hogo Kansatsu Hō), was introduced in 1936, he was able to praise it as progressive. This law became a key piece of Japanese wartime legal legislation to check dissent, alongside the Peace Preservation Act.64 But for Takikawa, both laws represent a failure of Japanese criminal law to recognise the importance of freedom of thought. Such views were clearly subversive. Takikawa would claim that those who commit the crime of insurrection against the state (nairan-zai) are punished not because their motivation is flawed and their behaviour unacceptable. They are punished because they have lost in their ideological battles with the state.65

B.  The Concept of a Person The phrase nulla poena sine lege (no punishment without law) articulates the principle of legality advocated by the Classical School, reflecting the development of modern natural law, and is attributed to the German legal scholar Anselm von Feuerbach (1775–1833). Feuerbach adopted the utilitarian notion that punishment should act as a warning to protect society from crime, but also adhered to the idea of criminal law developed by earlier thinkers such as Kant and Beccaria that the interiority of the mind of a person was inviolable. They asserted that there should be a clear distinction between the internal thought of a person and the clearly observable signs of the crime, and what criminal law can punish is the latter alone. Takikawa interpreted Feuerbach’s theory as aimed at defending individual liberty, and remained a life-long admirer of his work. The notion of the interiority of the mind of a person is often equated with that of free will. Both Garofalo and Ferri criticised the Classical School for claiming that every person possesses his own free will and for interpreting crime as resulting from the exercise of free will.66 The idea of free will is important to the Classical School. However, the core claim of the Classical School is not the descriptive notion of free will but the normative position of legal equality. The principle of nulla poena sine lege, in the tradition of the Classical School, is intertwined with the normative notion of legal equality, that is, everyone must be treated equally under the law. In reality people differ from each other in various ways such as talent, biological features and conditions, social status and class. However, a legal system must presume, first, the inviolability of a person and second, the applicability of this principle to everyone. For traditional students of the School, such as Takikawa, this normative notion of equality is the core of justice. The principle of nulla poena sine lege is predicated on these normative assumptions. At the same time it is important to acknowledge that the legal equality advocated by the Classical School entails the humanistic and situational concept of a person.

64 Uchida

(n 4) 280. Takikawa’s possible motives note Itō, Takikawa Yukitoki (n 4) 114. 66 Pifferi (n 10) ch 2. 65 On

246  Hiromi Sasamoto-Collins According to Steven Lukes, that concept views a human being as ‘the source of (yet to be discovered) intentions and purposes, decisions and choices, as capable of (yet to be discovered) forms of self-development’.67 A human being has his own internal world, and makes decisions based on his knowledge in time-and-space specific circumstances. This situation is universal regardless of one’s value system and beliefs, social standing and cultural heritage. Valid law must recognise this universal human condition, and have a certain generality that transcends the specificity of the individual criminal. The new sensitivity to the fundamental human situation profoundly affected modern criminal law. Peter Ramsay, for instance, notes that: The abstract concept of the human being as a moral subject, a legal subject, and an egoistic, economic subject – subject of equal worth with all others and responsible for her choices and actions – is at the heart of modern criminal law doctrine.68

Ramsay’s formulation juxtaposes familiar but contrasting images of the human being, purposeful but also conditioned by his environment. It also combines descriptive features of the human being and the constitutional principle of legal equality. Modern criminal law adopts a more realistic view of human nature and existence than that proposed by the Classical School, thanks to the Modern School, but is still grounded in modern natural law. The Classical School had already articulated the fundamental nature of modern criminal law so that, as Pifferi describes it, ‘Social defence theory and individualization had to be harmonized and balanced with individual responsibility and retributionist approaches because abandoning the legality of punishment could easily be turned into a means of discriminatory political marginalization’.69 Such an awareness reflects the lasting influence of the Classical School, and Takikawa, through the Free Law tradition, preserved this ideal. This was a brave and original position, in a country where many jurists interpreted the Free Law Movement as questioning, not endorsing, the constitutional principles addressed by the Classical School. Takikawa understood that the use of theory, or legal science as promoted by the advocates of the Movement, was needed to make the normative notion of legal equality central to criminal law. Early modern Japanese criminal law was largely dictated by the class system, in that the nature and extent of punishment was strongly influenced by one’s status by birth.70 Thus, the open assertion of human subjectivity, that of legal equality, and the fuller acceptance of actus reus were revolutionary. Takikawa’s criminal law theory echoes these radical developments. If his theory was rejected in the 1930s by the regime, it was because the regime looked with disfavour on the notion of human agency and the egalitarian vision of a political community that the theory transmitted.71

67 S Lukes, Individualism (Oxford, Basil Blackwell, 1973) 147. 68 P Ramsay, ‘Pashukanis and Public Protection’ in MD Dubber (ed), Foundational Texts in Modern Criminal Law (Oxford, Oxford University Press, 2014) 206. 69 Pifferi (n 10) 151. 70 When the class system was abolished by the Meiji government (1868), actus reus emerged as one of the central elements of criminality. Thus, the rejection of actus reus under the Peace Preservation Act undid Meiji legal reform, although the dominant factor now was not class but the supposed interests of the state. 71 In this regard a key difference between Japanese experiences and that of Nazi Germany and Fascist Italy might be found in divergent approaches to the significance of written law and the acceptance or rejection of free will and agency.

Takikawa and Legal Autonomy  247

C.  Theories of Norms If the influence of Feuerbach on Takikawa is unmistakable, Feuerbach was also a philosopher of a pre-industrial age. He saw the state as a benign political community created for the purpose of ensuring individual liberties. What he did not foresee was the development of industrial capitalism, its problems and the state’s inability to manage them. His theory of human psychology was also found wanting. It was members of the new generation of the Classical School, such as Karl Binding (1841–1920) and Takikawa’s German mentor Mayer, who provided Takikawa with a more sophisticated theory which enabled him to criticise Japanese criminal law from the Classical School’s universalist position. Takikawa closely followed the development of norm theory from Binding to Mayer. In his norm theory, Binding distinguished norms, as ‘standards for the behaviour of citizens’, from gesetz (statutes), which ‘set standards for the behaviour of the state’ and allow the state to punish those who violate norms and thereby obedience to the state.72 Norms here are rules which are immanent in the political community, which is the state. ‘[T]he legislature, in its discretion, translated’ the norms ‘into legal prescriptions and prohibitions, including, but not limited, to criminal statutes’.73 The norms exist, ‘in theory’, before statutes.74 Unlike Feuerbach who saw a crime as the violation of other people’s rights, Binding saw a crime as a violation of norms. As with the state theory of the Classical School, including that of Feuerbach, Binding’s notion of the state was very abstract and elitist.75 Norms would be more fully discussed by Binding’s successors, including Mayer. And yet Binding’s norm theory laid the foundations of ‘legal science’ in criminal law, by subjugating statutes to a conceptually much larger world. The objective assessment of statutes became possible, as well as the meaning of the authority of the state which produces statutes. The German tripartite system of crime was based on this tension between norms and statutes, and it became the foundation of Takikawa’s own criminal law theory. The distinction between norms and statutes also encouraged jurists to consider the meaning of wrongfulness or unlawfulness in unprecedented depth. Introducing Binding’s norm theory, Takikawa states that the state can only punish the doer in cases in which he has recognised that his act would violate norms and he has actually acted. To punish someone who had no awareness that he was violating norms is tantamount to making an innocent man a victim of idolatry.76

Binding attributes guilt to the will and capacity of the doer, and does not automatically blame the doer for wrongfulness, although the doer remains ‘the cause of wrongfulness’. Binding’s position was positivist based on this dualism,77 but with a strong attachment to

72 Quoted by Takikawa in his ‘Ihō no Ninshiki’ [‘Recognition of Unlawfuless’] in TYKCS, vol 4, 83 (originally in (1919) 2(2–3) Hōgaku Ronsō). 73 MD Dubber, ‘Theories of Crime and Punishment in German Criminal Law’ (2005) 53 American Journal of Comparative Law 688. 74 Eser (n 21) 625. 75 Note Vormbaum (n 8) 129. 76 Takikawa, ‘Ihō no Ninshiki’ (n 72) 83; and Takikawa, ‘Ihō no Ninshiki to Keizaijihan’ [‘Recognition of Unlawfulness and Economic Criminals’] in TYKCS, vol 4, 153 (originally in (1931) 7(1–2) Kōhō Zasshi). 77 See Dubber, ‘Theories of Crime and Punishment’ (n 73) 687–88.

248  Hiromi Sasamoto-Collins the tradition of the Classical School emphasising the will of the individual. Binding thus ‘contributed to the separation of wrongfulness from guilt’,78 one of the key features of the German tripartite system. Whether or not it was a component of the mens rea that the doer knew that he was acting illegally divided the Modern School and the Classical School. The Classical School assumed that individuals, including criminals, possess a mind of their own. If they have committed a crime, it involved their own decision. For this school, therefore, whether or not the doer was aware that he was acting illegally was of crucial importance in determining his culpability. In contrast, the Modern School dismissed, in principle, this notion of the free-willed individual as a principal assumption in defining crime and punishment. The fact that the doer has acted in a certain way already presumes the doer’s guilt. Whether or not the doer was aware of the illegality of his act – the question so essential to the Classical School – is irrelevant to the notion of the social risk of the act with which the Modern School was primarily concerned. Thus, the Modern School claimed that the mens rea does not necessarily require that the doer was aware of the illegality of his act.79 This preoccupation with the idea of social dangerousness would lead to obscuring the concept of a person, ‘a mind–body distinction’ which reflects the idea of ‘human identity as residing in a mental interior’.80 Yet if the Classical School lacks flexibility in dealing with social realities and personal traits, the Modern School has the problem of providing adequate theoretical grounds for constraining the state’s power to punish.81 Takikawa acknowledges that this disagreement between the Classical and Modern schools may be hard to resolve. Yet for him it was important that the doer has known the illegality of his act and acted upon this awareness if he is to be blamed for his action. The Modern School gained popularity in interwar Japan, thanks to the work of its Japanese students including Makino. Whether or not its popularity damaged the Classical School’s notion of legality in 1930s Japan is an open question. Nevertheless reduced emphasis on the interiority of the inner self is unlikely to strengthen the ideological and philosophical foundations of criminal law as a discipline that can counter politics. The appearance then of theoretically minded jurists such as Takikawa may be thought to signal the emergence in Japan of an independent criminal jurisprudence. Takikawa’s legal theory developed under the influence of the Classical School and the new scientific approaches pursued by Mayer and others, including Kantorowicz and Radbruch (and also by some Modern School scholars such as Liszt), but it also signals the emergence of independent-minded jurists.82 For Takikawa, as for Kantorowicz, a fully grounded legal science was an essential means to establish legal autonomy.

78 Eser (n 21) 625. 79 Dandō (n 50) 315. 80 N Lacey, ‘Psychologising Jekyll, Demonising Hyde: The Strange Case of Criminal Responsibility’ (2010) 4 Criminal Law and Philosophy 109, 121. 81 See Pifferi (n 10) ch 10. 82 A critical study of judicial precedents, which is essential for fully-fledged jurisprudence, only began in Japan after the First World War under the influence of the Anglo-American common law tradition. Takikawa, Gekiryū (n 4) 23, speculates that his criticism of one of the Daishin’in’s rulings on the Peace Preservation Act during his 1932 radio broadcast may have offended the authorities.

Takikawa and Legal Autonomy  249

D.  Criminal Responsibility Another facet of Takikawa’s thought with strong political implication concerns responsibility. Takikawa’s theory of guilt was deeply influenced by leading German criminal law scholars such as F v Liszt, who defined crime as an act (Handlung, in the sense of a wilful physical motion) which is typified by a penal provision (Tatbestandsmässigkeit), unlawfulness (rechtswidrig) and guilt (schuldhaft, in the subjective sense). Thereby unlawfulness was related to the objective elements of the act, whereas ‘guilt’ was understood as the subjective prerequisite for a criminal sanction.83

Somewhat surprisingly, Takikawa was disinclined to accept Liszt’s emphasis on psychological elements in clarifying guilt, and moved to a more normative notion. ‘Psychological elements lack commonality’, says Takikawa, quoting E Schmidt.84 Takikawa was especially interested in the notion of Zumutbarkeit (expectancy) developed by one of his Frankfurt teachers, Berthold Freudenthal. The notion concerns the question of what can be expected of the offender in the particular circumstances of his offence.85 However, the content of Zumutbarkeit was controversial. What is the content of the ‘commonality’ that Takikawa refers to? What are the standards based on which we judge the circumstances surrounding the behaviour of the offender as expected (therefore we can attribute guilt to him) or unexpected (therefore we cannot blame him for his action)? Practitioners need such standards in determining criminal responsibility, but who provides such standards? Takikawa identifies three schools of thought since the idea was introduced by Freudenthal in 1922. The first school led by Freudenthal assumes that the standards should come from the offender himself; the criterion is whether or not the offender himself is expected to have acted differently, and guilt should be imputed to him only if he could have avoided the offence.86 The second school led by Goldschmidt and Schmidt introduces the notion of the ‘average man’ and asserts that standards should be based on the ‘average man’ not the offender himself. The central question for this school is to ask whether or not the ‘average man’ is expected to act like the offender.87 The third school led by E Wolf, Metzger and one of Takikawa’s Japanese colleagues, Chihiro Saeki (1907–2006), asserts that the state should provide the standards; the standards are determined by the legal order created by the state. The standards of Zumutbarkeit are determined by neither the offender nor the ‘average’ man, but by an institution which expects people to act or not to act, which is the state.88 Takikawa dismisses all three schools, although he is sympathetic to the first two. Objecting to the first school, he says that its notion of Zumutbarkeit focuses too much on the offender; the standards for Zumutbarkeit do not come from the offender himself, but

83 Eser (n 21) 626. 84 Takikawa, ‘Kitai Kanōsei no Kaiko’ [‘Reflections on Zumutbarkeit’] in TYKCS, vol 5, 425 (originally in (1953) 59(1) Hōgaku Ronsō). 85 Note G Fletcher, The Grammar of Criminal Law: American, Comparative, and International, vol 1 (Oxford, Oxford University Press, 2007) 322. 86 Takikawa, ‘Kihanteki Sekininnon ni okeru Kitai Kanōsei’ [‘Normative Responsibility and Zumutbarkeit’] in TYKCS, vol 5, 371 (originally in 1950 11(1) Kōhō Zasshi). 87 ibid. 88 ibid.

250  Hiromi Sasamoto-Collins from the circumstances in which the offender was located. The normative standards of ­Zumutbarkeit must agree with all those circumstances in which the actor could not but act in the way he did. Takikawa is also critical of the idea of the ‘average man’. He thinks that the notion of the ‘average man’ does not explain anything fundamental. It avoids determining the content of criminal responsibility, and uses the concept of the ‘average man’ in a merely expedient way.89 However, Takikawa directs his severest criticism at the state-as-standards theory, and gives a lengthy repudiation: The theory that the state provides the standards of Zumutbarkeit does not explain anything. Those who support the state-as-standards theory claim that the legal order provided by the state should be used to judge Zumutbarkeit, but their argument is tautological … The Zumutbarkeit we are discussing is already located in the concrete legal order controlled by the state.90

Takikawa quotes Saeki, one of his former colleagues at Kyoto, as saying: The state may expect people to do what the average man cannot do or which may not be commonly possible … At a time of war or national crisis, people may be expected by the state to do things which may not be expected of them in peace time.

Saeki uses this argument to claim that Zumutbarkeit is determined by the state.91 ­Takikawa strongly objects to this view, saying that the state-as-standards theory gives the state excessive priority, obscures the tension between human judgement and concrete circumstances, and ignores the very reason jurists should discuss the existence or non-existence of Zumutbarkeit as a ground for excuse. ‘The standards of Zumutbarkeit’ he reiterates, ‘derive not from the legal order itself but from those concrete circumstances already within the legal order’.92 Such theorisation of Zumutbarkeit is not an assertion of legal positivism, but a method of scrutinising the grounds of legal rules in the Kantian dualist framework. Implicit in it is the view that criminal law should not serve the ends of unitary rule, but be part of an openended quest for rules of behaviour in a civic society where people are expected to behave reasonably. The assessment of reasonableness is based on the assumption that it is possible to speculate on how people commonly behave in certain circumstances. The controlling factor is the principle of equality based on such a concept. In this way the grounds for justification and excuse can be expanded, as appropriate, for closer more equitable examination. Nicola Lacey, in her study of the modern history of English criminal law, observes the shift from ‘manifest criminality’ to ‘subjective criminality’.93 We can see a similar shift in Japan in

89 ibid 374–76. 90 ibid 376. Note also Takikawa, ‘Hanzairon Josetsu’ [‘An Introduction to Criminal Law Theory’] (1938) in TYKCS, vol 2, 112; Hanzairon Josetsu [An Introduction to Criminal Law Theory] (Tokyo, Bunyūdō, 1938). 91 Saeki, Keihō ni okeru Kitai Kanōsei no Shisō [Theory of Zumutbarkeit in Criminal Law], vol 2 (Tokyo, Yūhikaku, 1949) 327. For interpretations of Saeki compare Uchida (n 4) 159–60; and Yūichi Deguchi, ‘Saeki Chihiro’ in ­Hiroshi Ono, Yūichi Deguchi and Naoko Matsumoto (eds), Senji Taisei to Hōgakusha [The Wartime State and Japanese Law Professors] (Tokyo, Kokusai Shoin, 2016) 333–34. 92 Takikawa, ‘Kihanteki Sekininnon ni okeru Kitai Kanōsei’ (n 86) 376. Note also Dandō (n 50) 329. 93 N Lacey, ‘In Search of the Responsible Subject: History, Philosophy and Social Science in Criminal Law Theory’ (2001) 64 Modern Law Review, 350 361. See also Lacey, ‘Psychologising Jekyll, Demonising Hyde’ (n 80) 131; and N Lacey, In Search of Criminal Responsibility: Ideas, Interest, and Institutions (Oxford, Oxford University Press, 2016).

Takikawa and Legal Autonomy  251 Takikawa’s theory, although his view was not widely shared at that time in his own country. According to Takikawa: The ability to take responsibility is the mental ability to determine one’s own act according to jōri (natural reason). Because of this mental ability, we can impute to the actor critical awareness of his own actions. The ability to take responsibility is the foundation based on which we make the doer take criminal responsibility.94

However, if we compare Takikawa’s position with that of Miyazawa, his parliamentary accuser, we begin to see the emergence in Japan of a more ‘nativist’ vision of responsibility that would be much more arbitrary and authoritarian. Miyazawa discussed the issue of criminal responsibility at a parliamentary committee meeting on 1 February 1933, where he attacked Takikawa and other law professors for their ‘subversive’ theory: If we focus on the scope of responsibility based on legal regulations, or we discuss the issue of responsibility based on legal interpretation of whether or not the person has the will (to do something), the scope of responsibility will be naturally restricted even in cases at the local courts. However, I believe that this is a narrowly-defined sense of responsibility. If we follow European and American ways, we might be able to say that one is responsible within the scope of law, within the regulations. However, responsibility in the traditional Japanese sense, or in Asia as a whole, is not legal responsibility; it is extra-legal, all inclusive, general, moral, a broader (daijōteki) responsibility politically … Daijōteki responsibility is the foundation of the state structure, the maintenance of society. Because of this our own teaching has developed as jingi dōtoku (moral responsibility).95

By implication here law as the protection of one’s inner thought is not a priority. For Miyazawa wrongdoing, guilt and responsibility are subsumed under the notion of the wellbeing of Japan and Asia as a whole. The notion of the autonomous individual has all but disappeared, as has the rule of law itself. Miyazawa’s daijōteki responsibility echoes that of Ono Seiichirō’s dogi kokka, and the general claims of the Japanese Law Movement, in which Ono played a central role. In their argument, the individual was no longer the central value as the Classical School asserted or an object of detached analysis as the Modern School claimed, but was given ‘duties’ within a national goal. In this framework, criminal responsibility was no longer legal responsibility, but moral responsibility as dictated by the state. If the Japanese Modern School contributed to the weakening of the principle of legality and the notion of each person’s rights, Japanese Romanticists such as Ono did much the same. Unicity was achieved by rejecting Kantian dualism, the principle of legality and the notion of the inalienable rights of the individual. In this process, these Japanese jurists selectively appropriated legal theories developed in Europe, by the Classical School, the Modern School and the Free Law Movement, but also rejected many of them by resorting to what they claimed to be the traditional values of the country, to create a legal narrative that served the state. Reading Takikawa’s work nearly a century after it was written, one is struck therefore by its bold insistence that legal theory should not always serve the state’s purpose. By so

94 Takikawa, Keihō Kōgi (n 35) 91; also at 88 on Jōri as social awareness. 95 The transcripts of the parliamentary debate (1 February 1933) 18. A Buddhist term of the Mahayana (Great Vehicle) school, daijōteki means a broad view, discarding all minute issues. It has connotations close to that of Manabu Matsumoto’s idea of hōnin ichinyo (the unity of Japanese people and their land), and also to the general claims of the Japanese Law Movement during the war.

252  Hiromi Sasamoto-Collins doing he was proposing a more egalitarian society and participatory democracy. It was this vision of social organisation and of man’s role within it that agitated rabid nationalists such as Miyazawa and Minoda of the Nihon Genrisha, and which clashed with the dominant legal thought of the time that favoured a conservative social structure and a paternalistic state. The Japanese wartime state was predicated on the negation of such individualistic and pluralistic visions of society as Takikawa defended. Some of Takikawa’s points have become outdated,96 but because of his espousal of liberal values his contribution to the development of criminal law theory in Japan is undeniable. In his insisting on the separation between unlawfulness and guilt, his calling for the law’s internal integrity and external autonomy, and in his emphasis on making criminal law more humane and responsive to social needs, we can see the impact in Japan of the Classical School’s emphasis on jurisprudence and the sociological and scientific approaches advocated by the Free Law Movement. The J­ apanese authoritarian regime however could not accept an autonomous legal system nor a legal system based on the principle of legal equality.

Conclusion In closing, we can reflect on Takikawa’s version of natural law, and its enduring powers to guard against hegemonic forces. Natural law is a notoriously complex concept, and varies in emphasis depending on time and place. Uneven development, specific traditions and cultural norms mean that we cannot expect a full convergence in such legal thought and practice.97 Nevertheless, it seems that there were independent legal minds during the interwar and war periods who did conform to certain principles of the law so that the law would remain a distinctively humanistic science. One of them was equality before the law, which is central to the modern conception of natural law. Those dissident scholars, including ­Takikawa, took this and other such principles for granted, in what might be thought of as the natural law of our time. Takikawa as we have seen also criticised some arguments put forward by the Modern School of Criminal Law and Criminology. In his view the school embraced scientific notions of crime and criminal to a degree where the normative notion of the individual in natural law was severely weakened. He criticised the School’s emphasis on the biological and psychological factors specific to an individual. For him the notion of criminal liability solely based on such factors was incompatible with the notion that the same law should be applied to anyone for the same conduct. Individually specific biological or psychological liability does not have the degree of commonalty that the law should demand. In this regard, Takikawa was a loyal student of the Classical School which asserted that a person should be punished not because of his malicious nature but because he had committed an act legally defined as a crime. The illegality of the act must be defined as objectively as possible based on the outward appearance of the act. It is not acceptable that the same

96 The Japanese Criminal Code of 1907 Art 39 stipulates that the act of a person who is not in full mental control is not punished, or the punishment may be reduced. Takikawa asserted that this provision should also apply to an inebriated person. See Dandō (n 50) 280. 97 See AP d’Entréves, Natural Law (London, Hutchinson University Library, 1970).

Takikawa and Legal Autonomy  253 act can be interpreted as legal or illegal solely depending on the subjective aspects of the criminal. At the same time Takikawa asserted that a person should not be held liable for his behaviour when it was practically impossible for him to act in any other way. Both arguments, that the law needs some sort of generality in order to ensure the principle of equality, and that the law should not impose impossible demands, are two of the eight features of modern natural law, as formulated by Lon Fuller.98 These features constitute what Fuller describes as ‘the inner morality of law’. Such an articulation seems to be an attempt by a natural-lawinclined jurist to present the law as a self-reflective and autonomous discipline, independent of the state, where moral debate is integral. The drive towards sceptical clarity, in which Takikawa participated, appears to be a hallmark of modern notions of natural law, which function as a counter-force to sovereign power and promote the basic personhood of the individual. If Ono’s dōgi kokka (moral state) was based on some form of natural law, which may or may not have been derived from his Buddhist belief as some scholars claim,99 it abandoned this role and no longer merits the label of natural law in the framework of the modern nation state. Fascist regimes are not likely to be comfortable with criminal theories which claim their own autonomy and pursue clarity in their own terms. It seems therefore that many of those who were able to resist the deliberate breakdown of the legal system in the various fascist countries were natural law inclined jurists who adhered to their dualistic or pluralistic view of the law. Takikawa was one of them, and he was able to confirm his natural law inclinations through the tripartite system. For the tripartite system appears to be built on the natural law tradition in Germany and in the civil law countries. It may go back as far as Grotius, assuming an abstract or speculative legal order distinct from human and written laws, or positive law, and the role of human reason in shaping this distinction. As such jurists accepted this basic dichotomy, they could deal with positive laws more systematically and critically. The notion of Tatbestand, the idea of the statutory elements which constitute a crime, was a case in point. Higher, general law in the context of modern natural law is influenced by the idea of the inviolability of the inner life of each person, and demands that criminal liability provide the outwardly defined and stipulated elements of a crime in order to protect it. To draw a boundary between the inner life and the outward form of personhood may be always arbitrary, and yet awareness that such a boundary must exist in a legal system may prevent an excess of injurious legal practice and argument. Takikawa’s legal theory adhered to this dualistic conception of criminal law. Japan did not inherit the monotheistic emphasis of natural law of the Judaeo-Christian tradition, but twentieth-century natural law was already broad enough to embrace reason, morality and socio-cultural norms as Mayer asserted, and which Japanese jurists could share. Regardless of origins, the existence of law beyond state law is a powerful counter vision to the power of the state. Some forms of natural law may have contributed to the centripetal, fascist trend, but nonetheless Takikawa was able to produce an effective critique of the Japanese unitary movement, when the legal boundaries between public and private, state and society and 98 LL Fuller, The Morality of Law, rev edn (New Haven, CT, Yale University Press, 1969) ch 2. 99 Yūichi Deguchi, ‘Tōsei, Dōgi, Ihōsei – Ono Seiichirō no “Nihon Hōri” o Megutte’ [‘Control, Morality, and Illegality concerning Seiichirō Ono’s “Japanese Law”’] (2014) 20(20) Tōin Hōgaku 146.

254  Hiromi Sasamoto-Collins state and individual, were breaking down. Among his natural law inclinations were a multilayered conception of the law, adherence to the inviolability of the individual and awareness of the natural fluidity of the legal world, and they constituted a persuasive defence of both the inner life and the legal system when they were most vulnerable. One pressing challenge to Japanese jurists in the early twentieth century was to establish criminal law as an independent discipline so that it could prevent the misuse of power. Another was to recognise the inviolability of basic personhood in a legal system and uphold the principle of legal equality. Many jurists appear to have failed in both tasks in the face of the rise of an authoritarian government. On the other hand, despite some shortcomings, Takikawa’s criminal theory reflects a persistent commitment to these tasks in defiance of the intense ideological and political pressures to which he was exposed.

part iii Development, Expression and Tensions

256

12 Punishing the ‘Veterans of Crime’: Recidivism in Fascist Italy’s Rocco Code of 1930 PAUL GARFINKEL

Introduction In 1930, the framers of Fascist Italy’s new Criminal Code introduced harsh measures for defining and punishing the so-called veterans of crime, reoffenders presumed to represent the gravest danger to the social and political order. The Rocco Code distinguished between two types of repeat offender and prescribed for them far more aggressive and expansive penalties than those outlined in the outgoing Liberal (Zanardelli) Penal Code of 1889. For the first type – which I will refer to as ‘common’ recidivists – the Rocco Code prescribed an increase of up to two-thirds the normal penalty depending on the nature and circumstances of the most recent crime and the case history of the wrongdoer. Even sterner justice awaited those of the second type: ‘dangerous’ recidivists that included newly classified ‘habitual’ and ‘professional’ criminals as well as the ominous sounding ‘criminals by tendency’. In addition to longer prison sentences, these reoffenders were to endure ‘administrative security measures’, indefinite confinement in either an agricultural colony or a workhouse, and only after a prison term had been served. Collectively, these prescriptions greatly enhanced the discretionary power of bench judges; drastically lengthened the punishment for repeaters; and dramatically strengthened the state’s power to repress and prevent common crime in the name of ‘social defence’.1 How did Fascist lawmakers come up with such draconian and such authoritarian measures against reoffenders, and why? To what extent did these measures embody the extreme penological theories of Cesare Lombroso and his so-called Positivist School of Criminology that had emerged in the 1870s? How Italian were these anti-recidivist measures? And how ‘Fascist’ were they? These, to date, have been the central questions guiding scholarship on the Rocco Code. Although very few historians have examined the recidivism

1 For the Rocco Code (henceforth CP 1930) and its statutes on recidivism, see Ministero della Giustizia e degli Affari di Culto, Codice penale (Rome, Istituto Poligrafico dello Stato Libreria, 1930) Arts 99–109, 216–18.

258  Paul Garfinkel statutes closely,2 most scholars have read the Code’s measures against ‘socially dangerous’ criminals in general as essentially and distinctly ‘Fascist’ in both form and substance: they are seen as part of a new, wider set of repressive laws and institutions designed primarily to discipline anti-Fascists and social undesirables and, more broadly, to cement totalitarian control over Italian society.3 While some scholars identify in these measures a rupture with pre-Fascist penal policy, others emphasise continuity. According to many scholars of criminology, the Rocco Code’s anti-recidivist statutes extended the legacy of ideological extremism that they claim had been shaping the Italian legal order since the publication of Cesare Lombroso’s Criminal Man in 1876.4 The measures, they argue, incorporated almost entirely positivists’ radical prescriptions for social defence; and as such, they stood as a ‘victory’ for Lombrosian criminologists over the competing ‘classical school’ of jurisprudence. Despite these differing interpretations, the existing historiography concurs that the Rocco Code’s statutes are distinctively Italian.5 The purpose of this chapter is to revisit and to revise these interpretations on the basis of a fuller study of the available evidence. Existing scholarship examines Fascist penal law reform within an overly narrow historical and ideological framework: it analyses it through the lens of positivist theory and polemics that emerged in the last quarter of the nineteenth century or in the still more recent context of the rise of Fascism. By doing so, it overlooks how the Rocco Code’s anti-recidivist measures might bear the imprint of non-positivist legal thought and legislative precedents both before and after Lombroso; or how they might reflect priorities and legal mentalities of Italian penal reformers who were not strictly ‘Fascist’. This chapter begins to fill these significant gaps by expanding the chronological framework for its study. At the same time, it broadens the geographical one, aware that the current historiography makes the case for the measures’ uniquely Italian nature without analysing them in a wider international context. This chapter also takes a different approach to reading the Rocco Code itself – by scrutinising it more closely and by identifying and investigating different stages in its long evolution. Whereas existing scholarship has examined the 1930 Criminal Code only in its final, official form, this study analyses how it emerged from a protracted, six-year process of authorship, review and revision.6 2 The most comprehensive and useful studies on recidivism in Italy, in fact, are focused almost entirely on the nineteenth century. See especially P Marchetti, L’armata del crimine: teoria e repressione della recidiva in Italia (Ancona, Cattedrale, 2008). 3 See, eg, G Neppi Modona and M Pelissero, ‘La politica criminale durante il fascismo’ in L Violante (ed), Storia d’Italia. Annali 12: La criminalità (Turin, Einaudi, 1997); PA Cavaliere, Il diritto penale politico in Italia dallo Stato liberale allo Stato totalitario: Storia delle ideologie penalistiche tra istituzioni e interpretazioni (Rome, ARACNE, 2008); L Klinkhammer, ‘Was there a Fascist Revolution? The Function of Penal Law in Fascist Italy and Nazi Germany’ (2010) 15 Journal of Modern Italian Studies 390; and C Schwarzenberg, Diritto e giustizia nell’Italia fascista (Milan, Mursia, 1977). 4 See, among others, CF Grosso, ‘Le grande correnti del pensiero penalistico italiano tra Ottocento e Novecento’ in L Violante (ed), Storia d’Italia. Annali 12: La criminalità (Turin, Einaudi, 1997); M Gibson, Born to Crime: Cesare Lombroso and the Origins of Biological Criminology (Westport, CT, Praeger, 2002); and T Pires Marques, Crime and the Fascist State, 1850–1940 (London, Pickering & Chatto, 2013). 5 A limited number of more recent studies have begun to complicate the question of (dis)continuity. See especially M Sbriccoli, ‘La penalistica civile: Teorie e ideologie nel diritto penale nell’Italia unita’ in A Schiavone (ed), Stato e cultura giuridica in Italia dall’unità alla repubblica (Rome, Laterza, 1990); M Sbriccoli, ‘Le mani nella pasta e gli occhi al cielo: La penalistica italiana negli anni di fascismo’ (1999) 28 Quaderni fiorentini per la storia del pensiero giuridico moderno 817; and M Pifferi, Reinventing Punishment: A Comparative History of Criminology and Penology in the Nineteenth and Twentieth Centuries (Oxford, Oxford University Press, 2016). 6 The 1930 Code grew out of initial parliamentary discussions in 1925 in which full powers were granted to the government to reform the penal and procedural codes; two preliminary draft codes (the preliminary project

Punishing the ‘Veterans of Crime’  259 The Rocco Code’s recidivism provisions, this chapter argues, represented neither a Fascist reinvention of Italian penal law nor a triumph for Lombrosian radicalism. Their primary purpose, moreover, was not to criminalise political dissent; and their origin was not exclusively Italian. The anti-recidivist measures in the Rocco Code grew out of domestic penal reform debates, proposals and legislation that long predated Fascism and, in many cases, Lombrosianism. As such, they represented a different strand of legal thought from those with which they have traditionally been identified. The Rocco Code provisions were also closely related to – and sometimes directly inspired by – contemporary anti-recidivist legislation abroad and the debates and resolutions of the international penal reform movement. In making these arguments, this chapter asks us to set aside contemporary interpretations of the Rocco Code as revolutionary, radical and exceptional in its treatment of ‘dangerous’ common crime in general, and of recidivism and habitual crime in particular. At the same time, it invites us to rethink current interpretations of Italian and transnational legal culture more broadly. To describe the dominant strand of legal thought during the period under study, I employ the term ‘social defence’ throughout the chapter. As in my earlier work, my definition of the term differs from the conventional one, so a brief explanation for readers will be helpful here. Traditional scholarship considers social defence to be the invention and exclusive property of the Italian Positivist ‘school’ and as a concept that ‘classical’ jurists, in turn, categorically rejected. Accordingly, social defence has been defined solely in terms of positivists’ ‘modern’ and ‘scientific’ theories of crime and punishment, including the biological causes of criminal behaviour, social dangerousness as the criterion for criminal liability, the offender not the offence as the object of punishment, prevention and individualisation as the aims of penal discipline, and difesa sociale (social defence) itself as the very purpose of criminal law. Previous research has led me to the conclusion that this is too narrow an interpretation of both the origins and the nature of social defence as a penal philosophy.7 Penal jurists’ conceptions of social defence long predated the Italian Positivist School: they date back at least to Napoleon and were inherent in criminal law and reformism since the Enlightenment. At first a vague mixture of ideas about state interventionism, crime prevention, public order and aggressive policing, among other things, social defence gradually evolved into a more complex, coherent and precise set of penological principles to which the great majority of penal reformers adhered into the twentieth century. Prior to Lombroso, so-called ‘classical’ jurists were already developing the principles and language of social defence for the purposes of modernising penal law and building criminal justice systems that could repress and prevent crime effectively. Thus, what distinguished Italian positivists from mainstream legal practitioners was not their invention of social defence or even their adherence to it per se: rather, it was their extremism. For positivists, it was not just a main purpose of penal law, but the only one. For this reason, this chapter qualifies the relationship between the positivist school of criminology, or scuola positiva, and ‘social defence’: Lombroso and his followers are understood to represent only an extreme and relatively recent variant of this long tradition of legal thought. of 1927 and the definitive project of 1929); the recommendations of two governmental review commissions (1927–30); ongoing collaboration with the Italian legal establishment as of 1927; and the debates of international penal reform associations between 1925 and 1930. 7 See P Garfinkel, Criminal Law in Liberal and Fascist Italy (Cambridge, Cambridge University Press, 2016) 6–7, 12–13.

260  Paul Garfinkel Mainstream social defence, in contrast, was more moderate. At its juridical core, it blended entrenched legal principles (for example, moral responsibility and proportionate punishment) with evolving ‘modern’ penological concepts of what I call prevention (new legislative mechanisms to prevent ‘dangerous’ forms of common crime), prophylaxis (specialised penal institutions to rehabilitate dangerous offenders), and paternalism (an interventionist state committed at all costs to preventing crime). By the late nineteenth century, and throughout the Liberal era (1861–1922), Italian penal reformers had reached a broad consensus on how to ‘modernise’ the national penal system according to these principles: a double-track (doppio binario) system of criminal justice in which repressive punishment would suffice for ordinary offenders and preventative ‘security measures’, either in addition to or in lieu of regular discipline, would apply to ‘dangerous’ criminal types. This definition of social defence, then, at once more capacious and more historically comprehensive, offers a more accurate interpretation of difesa sociale than does the existing historiography. At the same time, the term does more than define more precisely the dominant ideas within the Italian legal mainstream in this period: it also, as we will see, reflects the views of jurists and lawmakers in other European countries and within the international penal reform movement on fighting ‘dangerous’ common crime.

Common Recidivism: Definitions and Discipline When Alfredo Rocco and his framers configured the Code’s anti-recidivist prescriptions, they had the chance to draw upon more than a century of legislative precedents in pre- and post-unitary Italy. The 1930 Code’s criteria for defining ordinary recidivism reveal they did just that: just as the nineteenth-century penal codes had done, the Rocco Code recognised recidivism as a (if not the) principal danger to society and prescribed a variety of socially defensive means to neutralise it. For one, it identified recidivism as a distinct legal status that increased the culpability of reoffenders and thus justified more muscular punishments than those for first-time lawbreakers.8 It also adopted the principle of indeterminate recidivism, namely that any second offence – committed at any time after a previous criminal ­conviction – rendered the lawbreaker a legal recidivist.9 This principle represented not a Fascist novelty, but a reversion to the Napoleonic Criminal Code (introduced in French occupied Italy in 1811) and to Restoration-era codes that followed the French model, including the 1859 Piedmontese Code that governed all unified Italy, except for Tuscany, until 1889.10 Much the same genealogy can be traced for the Rocco Code’s other criteria for defining common recidivism. Its benchmark for presuming recidivism by law – only a prior conviction rather than the higher legal standard of time served for a prior offence, thus indicating the failure 8 For a fuller discussion of recidivism statutes in nineteenth-century Italian criminal codes, see Garfinkel, ­Criminal Law (n 7) 122–28, 139–44, 161–64. 9 CP 1930, Art 99. 10 One recent essay incorrectly identified this standard as a Fascist ‘innovation’. See D Brunelli, ‘Recidiva e scuola positiva nella disciplina del Codice Rocco. Spunti di riflessione’ in S Vinciguerra (ed), Il codice penale per il Regno d’Italia (1930) (Padua, Cedam, 2010) xci. For a reprint of the 1810 French Penal Code, instituted in Napoleonic Italy the following year, see S Vinciguerra (ed), Codice dei delitti e delle pene pel Regno d’Italia (1811) (Padua, Cedam, 2002) Arts 56–58. For full references to the Restoration penal codes, see Garfinkel, Criminal Law (n 7) 123–28.

Punishing the ‘Veterans of Crime’  261 of prison punishment both to deter and to reform the offender – followed the examples of Napoleon, various Restoration states, and even the Liberal Zanardelli Code of 1889.11 So too did its recognition and application of the two well-established categories of common recidivism: ‘generic’ (any second offence, regardless of its nature and gravity); and ‘specific’ (a second offence of the same type). In keeping with nearly all its pre-Fascist predecessors, the Rocco Code treated specific recidivism as an aggravating circumstance, and for much the same reason: persistence in a particular criminal act represented a greater social danger than a general inclination to wrongdoing – and thus merited harsher justice.12 The Rocco Code’s prescriptions for punishing common recidivists followed earlier and, in keeping with my earlier definition, socially defensive remedies just as closely. For one, the Code sanctioned automatic increases in punishment for both generic and specific recidivism – just as virtually all penal statutes, draft criminal codes and special law projects in Italy had done from the Napoleonic era to the Great War. Moreover, in prescribing increased punishments for reconvicted recidivists – and even for relapsed misdemeanants – the Codice Rocco followed practices dating back to the 1803 Austrian Code (which governed Lombardy-Venetia until the 1860s) and to Liberal Italy’s first Penal Code of 1889.13 It is true that Rocco’s sentencing guidelines were more severe than those outlined in its 1889 predecessor, but they should not for this reason be labelled ‘Fascist’. In fact, many Restoration-era codes, post-unitary Italian draft codes, and post-1889 anti-recidivist legislative proposals contained measures that were as draconian as – if not tougher than – those included in the final text of the Rocco Code.14 A still closer look at Liberal Italy’s statutes and legislative proposals on recidivism provides further evidence that the Rocco Code’s severity towards repeat offenders was hardly a distinctively ‘Fascist’ trait. The numerous Italian penal code projects drafted between 1864 and 1887, for one, demonstrated that liberal penalists repeatedly aimed to administer harsh justice to relapsed lawbreakers. Prior to 1877, virtually all draft codes allowed bench judges both to exceed prescribed maximum sentences and to pronounce lengthy and onerous terms of post-carceral police surveillance.15 The series of proposed codes presented in the 1880s targeted reconvicted recidivism still more aggressively. Zanardelli’s first draft code of 1883, for instance, lengthened exponentially the prison terms for ‘specific’ recidivists convicted at least three times.16 Although the 1889 Penal Code eventually tempered the penalties for reconvicted criminals, its sentencing guidelines remained rigorous, even for 11 CP 1930, Art 99. For specific references to pre-unitary codes and the 1889 Zanardelli Code (hereafter CP 1889), see Garfinkel, Criminal Law (n 7) 124, 127–28, 161–62. 12 The Rocco Code framers’ adoption of the terms ‘generic’ and ‘specific’ is implicit but unmistakable in the definitions of and penal prescriptions for these reoffenders. See CP 1930, Art 99. For a fuller explanation of these concepts, also see F Giordani, ‘Recidiva’ 1925 (20)1 Digesto Italiano 395, 427–30. 13 For the 1803 Austrian Code, see Codice penale universale austriaco coll’appendice delle più recenti norme generali, 2nd edn, 2 vols (Milan, Imperiale Regia Stamperia, 1815) Pt 1, Arts 37a–37c and Pt 2, Art 388b. For similar measures in Tuscany’s 1853 Code of Misdemeanors, see Garfinkel, Criminal Law (n 7) 128. The inclusion of misdemeanants in general recidivism statutes represented still another Rocco Code reversion to pre-unitary law, akin to that of indeterminate recidivism. 14 See Garfinkel, Criminal Law (n 7) 124, 127–28, 140–43, 176–86; M Speciale, Legislazioni comparate al codice penale italiano (Catania, S Musumeci Barbagallo, 1868) 82–83; M Speciale, Progetti comparati del codice penale pel Regno d’Italia, 2nd edn (Rome, Tipografia del Senato di Forzani e compagno, 1878) 364–85; and M Speciale, Il codice penale pel Regno d’Italia. Studi dei progetti comparati (Rome, C Voghera, 1889–90) 438–45. 15 For specific references, see Garfinkel, Criminal Law (n 7) 139–41. 16 ibid 143.

262  Paul Garfinkel petty reoffenders. So too were the Code’s additional legal sanctions imposed on relapsed wrongdoers, including the denial of conditional liberation and the longer wait to seek legal rehabilitation.17 Several anti-recidivist draft bills presented to Parliament between 1896 and 1910 recommended still tougher penalties against common reoffenders. The ‘accessory’ punishment of ‘relegation’ – a post-carceral security measure to be served in a penal colony – constituted the most severe of these suggested sanctions, and one that could be inflicted on a dramatically expanded range of relapsed criminals. In short, these special law proposals aimed to introduce a second track of criminal justice that could inflict severe, protracted punishment not just on the most dangerous ‘habitual’ offenders, but even on common recidivists as well.18 The 1910 anti-recidivist legislation, introduced in Parliament by then Prime Minister Luigi Luzzatti, offers perhaps the clearest evidence that Liberal legal experts’ stern treatment of common recidivism predated that of their Fascist-era successors. The last of the pre-war anti-recidivist draft bills, Luzzatti’s was not just the boldest reform attempt to date: in its prescriptions against ordinary recidivism, his proposal was also the closest relative – both chronologically and substantively – to the Rocco Code. For one, it was the only pre-war scheme to propose what Rocco and his framers would go on to do several years later: a radical rewriting – and intensification – of the Zanardelli statutes on criminal ­repetition. Together with his Justice Minister Cesare Fani, Luzzatti suggested sharp sentencing increases for both generic and specific recidivism, raising the maximum penalties by up to one-third and one-half, respectively.19 Still longer and tougher maximums were proposed in cases of repeated recidivism: reconvicted offenders were not only to face up to double the normal punishment, but they could also be sentenced to ‘temporary relegation’ for one to five years in a special labour colony, and only after the prolonged prison term had been served.20 Ultimately, Luzzatti’s recommended increases were greater than those formalised in the Rocco Code two decades later: not only did the 1930 statutes prescribe lesser ­maximums

17 ibid 163–64. 18 For particulars on the habitual crime legislative proposals, see ibid, 176–86. In each case, the draft laws aimed to widen the definition of recidivist – turning common into habitual offenders – and to justify security measures and other ‘administrative’ penal sanctions. In 1899, two proposals by then prime minister Luigi Pelloux sought to impose temporary (10 years) and indeterminate relegation. The 1900 Chamber of Deputies Commission that reviewed and revised the second Pelloux proposal reduced temporary relegation from five to ten years. In his November 1900 proposal, then Justice Minister Emanuele Gianturco prescribed indeterminate relegation in all cases and envisaged penal colonies both in Italy and Eritrea. In his 1904 bill, then Prime Minister Giovanni Giolitti fixed relatively indeterminate terms of relegation from five to 15 years. 19 See bill no 599, 29 November 1910, ‘Sull’abolizione del domicilio coatto e sui provvedimenti contro i recidivi abituali pericolosi’ in Camera dei Deputati, Legislatura XXIII, Sessione Unica 1909–913. Raccolta degli atti stampati per ordine della Camera, vol 12 (Rome, Tipografia della Camera dei Deputati, 1913) Art 2 (hereafter CD no 599, 29 November 1910). The bill revised substantially CP 1889 Art 80, which defined and stipulated comparatively milder penalties for generic and specific recidivism. The Zanardelli Code’s provisions for generic recidivism only barred judges from applying the minimum sentence, while specific recidivism was to be punished either with longer stays in solitary confinement or with a prolonged sentence for offenders subjected to discipline that did not require an initial period of cellular isolation. 20 ibid. The bill established, inter alia, new penalties (an increase of one-third to one-half) for reconviction in cases of general recidivism and prolonged sentences (from one-half to double) in those of recidiva specifica so long as those increases did not exceed 30 years of imprisonment. The rules for ‘temporary relegation’, moreover, permitted penal judges to apply the measure liberally. At their discretion, magistrates could pronounce a term of post-carceral relegation so long as any one of the reoffender’s current or prior misdeeds carried with it a minimum six-month term of imprisonment.

Punishing the ‘Veterans of Crime’  263 for both general and specific recidivism, but they also exempted common reoffenders from post-carceral custody.21 It would be anachronistic to conclude from the 1910 sentencing guidelines that Italian Liberals were more ‘fascist’ than the Fascists in formulating their provisions against ordinary recidivism. Instead, the Rocco Code’s strong resemblance to the Luzzatti precedent makes clear that its unquestionably authoritarian nature was neither uniquely nor fundamentally ‘Fascist’ in inspiration. The comparative ‘mildness’ of the 1930 Code points to still another reason why Rocco’s statutes should be understood not as a fundamentally Fascist fiat. Invited by the Justice Minister to analyse the Rocco Code’s preliminary and definitive drafts, jurists representing the courts, university law faculties and provincial lawyer associations – as well as those legal experts serving on official review commissions – welcomed the Fascist state’s clear commitment to implementing a ‘modern’ and muscular dual-track system of punishment. But at the same time, they consistently criticised Rocco’s anti-recidivist measures as ‘excessive’, draconian and vague. Some went even further, openly preferring the Zanardelli Code’s greater linguistic precision and punitive restraint. At least to a limited extent, the sentencing reductions in the final text reveal Rocco’s responsiveness to the concerns of the legal mainstream.22 Hardly a Fascist pronouncement or translation of ‘pure’ ideology into law, the statutes are best understood as a highly authoritarian version of mainstream social defence strategies, both in Italy and abroad, for combating common recidivism. Moreover, they were a product of extensive consultations with a heavily invested legal order whose judgments on the draft codes tempered, even if only slightly, some of the 1930 statutes’ toughest prescriptions. As a clear forerunner to the Codice Rocco, the 1910 Luzzatti–Fani bill undermines conventional assumptions about the Rocco statutes for still another reason: there was nothing specifically Italian about its strategies against common recidivism either. In both its structure and its substance, the 1910 draft law was closely aligned with foreign legislative initiatives and the mainstream social defence views of the international penal reform movement over the previous quarter-century. The inspirational source for Luzzatti’s proposal, much like those that preceded it, came from abroad: France’s relegation law of 1885, which authorised the transportation of hardened recidivists to penal colonies in Guyana and New Caledonia.23 It is from the French legislation that Italian reformers adopted the concept and language of relegation, or relegazione and developed their own legal formulas for inflicting prison and post-carceral punishments on reoffenders. Luzzatti also drew upon subsequent legislative prototypes – such as the 1893 Swiss Penal Code project, the 21 See CP 1930, Art 99, which established up to a one-sixth increase in punishment for generic recidivism, and up to one-half in cases of reconviction. Specific recidivism was treated as an aggravating circumstance that allowed for a maximum 50% increase in the duration of punishment, and up to two-thirds in cases of reconviction. Security measures were limited to ‘criminals by tendency’ and to ‘habitual’ and ‘professional’ offenders either presumed by law or declared as such by a judge under certain conditions. See ibid, Arts 102–05, 108. 22 For an abbreviated collection of jurists’ critiques, see Ministero della Grazia e Giustizia, Lavori preparatori del codice penale e del codice di procedura penale, vol 3, pt 2 (Rome, Tipografia delle Mantellate, 1928) 100–06 (­hereafter MGG, LPCPCPP). Also see the comments by Giovanni Appiani, chair of the ministerial reform commission that reviewed the preliminary project in ibid, vol 4, pt 4, 296. The original and most comprehensive collection of jurists’ commentaries are found in Rome at the Archivio Centrale dello Stato (ACS), Ministero della Grazia e Giustizia (MGG), Gabinetto (Gab), Riforma dei codici (RC), buste (b) 8–11. 23 For an Italian translation of the French legislation, see S Longhi, Per un codice della prevenzione criminale (Milan, Società Editrice ‘Unitas’, 1922) 242–45.

264  Paul Garfinkel 1902 Norwegian Criminal Code and the 1908 British Prevention of Crime Act – which announced protracted penalties for reconvicted wrongdoers within a double-track system of punishment.24 Most influential were the concurrent criminal code projects underway in Germany, Switzerland and Austria just prior to the Great War. A new gold standard in the eyes of mainstream Italian penalists, these blueprints offered the most current strategies for combating common recidivism, including substantial increases in prison punishment and, in the case of the German and Swiss projects, security measures that resembled Luzzatti’s conception of ‘temporary relegation’.25 No less persuasive in the eyes of social defenders were the debates and resolutions of the transnational penal reform movement over the previous quarter-century. The most prestigious and authoritative of these penal reform bodies, the International Prison Congress (IPC) consistently reaffirmed and refined mainstream social defence approaches to common recidivism: legal distinctions between ‘generic’ and ‘specific’ types, stiffer prison terms for recidiva specifica in particular, and post-carceral security measures, at least in some cases, against common reoffenders.26 This transnational consensus only underscores the hybrid lineage – both Italian and international – of the Rocco Code and its statutes on common recidivism. Luzzatti’s proposed measures against common recidivism also undercut the existing scholarly presumption that extreme positivist theories of criminal repetition fundamentally informed the draft law. The evidence makes clear that the imprint of the scuola positiva italiana on the proposal was negligible – and precisely when the criminological movement is thought to have wielded its greatest influence in Liberal legal culture. By upholding the existing legal classifications of common recidivism, just as its predecessors had done, the  1910 proposal disregarded the positivist redefinition of criminal repetition as a pathology rooted primarily in the offender’s bio-psychological constitution. Luzzatti’s reaffirmation of ‘specific’ recidivism, a concept reviled by positivist criminologists, makes this rejection particularly clear. His categorisation reconfirmed the long-standing mainstream social defence view that recidiva specifica revealed not the wrongdoer’s insanity, but a culpable moral ‘perversity’ and criminal ‘impulse’ – and thus a greater social dangerousness – and that it was this that made him worthy of more intense punishment.27 Similarly, the Luzzatti bill’s penal prescriptions ignored positivists’ extreme demands for the indeterminate and purely defensive segregation of all habitual offenders. It reflected instead the mainstream social defence preference both at home and abroad for the ‘progressive’ system 24 See Garfinkel, Criminal Law (n 7) 183–84, 190–91. For the 1893 Swiss project, see A Gautier (trans), Exposé de l’avant-projet de Code Pénal Suisse. Partie Générale (Bale, Georg & Cie, 1893) 44–49. For the 1902 Norwegian Code, see V Manzini, ‘Codice penale norvegese del 22 maggio 1902, entrato in vigore il 1 gennaio 1904’ (1904) 60 Rivista penale 98, 103–04, and especially Art 65. For an Italian translation of the 1908 Prevention of Crime Act, see Longhi (n 23) 212, 246–49. 25 See Garfinkel, Criminal Law (n 7) 190–91. For the 1908 German Project Code, see G Battaglini (trans), ‘Progetto del Codice penale germanico’ (1912) 18 Giustizia penale 399, 560, Arts 42, 87–89. For the Swiss project, see G Battaglini (trans), ‘Progetto preliminare del Code penale svizzero (Aprile 1908)’ (1912) 18 Giustizia penale 759, 1160, Arts 31–32. For the 1909 Austrian draft code, see G Battaglini (trans), ‘Progetto del Codice penale austriaco’ (1911) 17 Giustizia penale 1188, 1455–56, Art 42. For an overview of these projects (in English), see G Battaglini, ‘Some Fundamental Problems of Criminal Politics’ (1912) 3 Journal of Criminal Law and Criminology 347. 26 For the IPC resolutions on recidivism between 1890 and 1910, see NK Teeters, Deliberations of the International Penal and Penitentiary Congresses: Questions and Answers, 1872–1935 (Philadelphia, PA, Temple University Bookstore, 1949) 73–74, 86–87, 95–96, 106–07, 122–23, 148–49. 27 CD no 599, 29 November 1910, 2, 9–11 (Art 2).

Punishing the ‘Veterans of Crime’  265 of punishment long derided by positivists: protracted penal servitude, mandatory ‘rehabilitative’ labour (both agricultural and industrial), and the promise of conditional liberation for ‘reformed’ convicts.28 No more does Luzzatti’s proposal on ‘temporary relegation’, or relegazione temporanea suggest evidence of positivist influence. Its debt to the international penal reform movement has already been made clear above, but it is also worth pointing out its domestic precedents – and ones that predated Lombroso. Luzzatti’s proposal represented penalists’ latest attempt to reform the institution of domicilio coatto – a failing system of police administered internal deportation that targeted suspected recidivists and ex-convicts – by judicialising and expanding the measure to include a wider range of reoffenders. In short, the purpose of temporary relegation was to overhaul a broken penal institution, not to translate positivists’ extreme social defence ideas into law.29 Positivism’s faint imprint on the Luzzatti bill makes sense when we consider the overall decline of the school’s influence on Italy’s post-war penal reform initiatives and debates. The standing of the scuola positiva in the Italian legal order had reached a nadir in the early 1920s and remained weak over the next decade. What precipitated the faction’s freefall was the short-lived and ill-fated attempt by Enrico Ferri, Italy’s leading lawyer-criminologist at the time, to construct a new national penal code according to ‘pure’ positivist principles of crime and punishment. Presented to the Justice Ministry in January 1921, Ferri’s project threatened to overturn not just the 1889 Zanardelli Code but also centuries of Italian legal tradition – and thus turned nearly the entire legal establishment against him and his ‘school’. His extreme proposals to make the offender rather than the offence the object of penal law; to substitute ‘legal’ for moral responsibility as the standard for criminal liability; and to replace fixed, proportional and retributive punishment with indeterminate, individualised and allegedly ‘non-punitive’ defensive ‘sanctions’ met with sharp condemnation and fierce resistance from across the juridical spectrum. The broad coalition of legal experts who resoundingly rejected the Ferri Code, moreover, did more than simply ensure the project’s demise: they articulated a fresh series of counterproposals – rooted in Italian and transnational conceptions of social defence – that would soon lay the groundwork for penal law reform under Fascism. Indeed, this anti-Ferri alliance was well positioned to guide this six-year process of Fascist penal reform, not least because its leading voice was that of criminal law professor Arturo Rocco. The younger brother of Alfredo Rocco, nominated ­Mussolini’s Justice Minister in January 1925, Arturo would become the chief architect of the 1930 ­Criminal Code that bore his brother’s name – and a code in which Ferri and the scuola positiva would play only a marginal role.30 If it is inaccurate to call the Rocco Code’s prescriptions against common recidivism distinctively Fascist, Italian or positivist, then how should they be interpreted? The ­statutes represent a complex, heterogeneous mix of ideas and concepts – pre- and postunitary, Italian and transnational – going back to the early nineteenth century. While they were certainly authoritarian, they did not translate pure ‘Fascist’ ideology into penal law. And  while they are solidly grounded in principles of social defence, they represent the

28 ibid 2–5, 11–13 (Arts 4, 7–9). 29 For a fuller discussion of these reform initiatives, see Garfinkel, Criminal Law (n 7) 173–86. 30 For an extended discussion of the Ferri Code, as well as the Italian legal order’s forceful and virtually unanimous rejection of it, see ibid, 363–88.

266  Paul Garfinkel mainstream strand of that penological thought both at home and abroad, not the extreme version of social defence embraced by Italian positivist criminologists. Similar patterns will emerge as we turn our attention to the other – and more critical – category of ‘dangerous’ recidivists. In the process, what was driving Italy’s legal establishment to define and punish ‘dangerous’ recidivism will become clearer: deep-seated concerns about Italy’s notoriously high rates of crime – especially violent offences – and its standing within the broader transnational penal reform movement.

Dangerous Recidivism: Classification and Confinement The Rocco Code’s treatment of ‘dangerous’ recidivists deserves fresh assessment and still closer scrutiny. Scholars have long presumed that the framers’ conception of ‘habitual’ offenders and indefinite ‘security measures’ designed to segregate them not only came straight from the scuola positiva’s theoretical writings but also were employed as a blunt ‘instrument’ by Mussolini’s dictatorship for nakedly political ends. A fuller reading of the available evidence, however, challenges these long-standing assumptions. Consider, for one, the apparently positivist criminological terms with which ‘dangerous’ recidivists are categorised. Some reconvicted offenders are explicitly defined as ‘habitual’ and ‘professional’ types, classifications long used and promoted by positivists in their criminal taxonomies. But a closer examination of the statutes in both draft and final form reveals that they fit squarely with mainstream conceptions of criminal relapse. Whether ‘habitual’ or ‘professional’, these reoffenders were neither mentally ill nor somatically degenerate, as positivist criminologists had long theorised, but fully conscious and morally corrupted wrongdoers fit for the rigours of regular penal justice. This distinction is particularly clear in the Rocco Code’s standards for determining the legal presumption of habituality: they depended not on the ­offender’s bio-psychological makeup and other subjective factors, in keeping with long-standing positivist suppositions, but principally on objective criteria such as the number and circumstances of previous convictions, the nature and gravity of the most recent offence, and the time lapse between the latest and the previous misdeed.31 Also necessary was the criterion of ‘crimes of the same character’. That the Code’s presumption of habituality would depend on this ‘traditional’ – and mainstream social defence – concept of ‘specific’ recidivism further undercuts the premise of predominantly positivist influence.32 Although these statutes permitted bench judges to evaluate the offender’s personal conditions in some cases, objective criteria were always to be weighed first.33 Much the same can be said for the classification of the ‘criminal by tendency’, or ­delinquente per tendenza, in the Rocco Code: traditionally presumed by scholars to be perhaps the clearest proof of positivist criminology’s imprint on the Codice Rocco, this

31 See CP 1930, Arts 102, 104–05. 32 The CP 1930 did not use the term ‘recidiva specifica’ specifically, but neither did the CP 1889. Both codes referred instead to crimes ‘della stessa indole’ (‘of the same character’), language that rested on the very concept of ‘specific’ recidivism. 33 See CP 1930, Art 103, which established more flexible criteria and lower standards for the ‘judicial’ presumption of habituality according to the magistrate’s discretion; and Art 133, which spelled out the criteria for bench judges to follow when determining punishments.

Punishing the ‘Veterans of Crime’  267 peculiar criminal type actually had very little positivism in it.34 In the 1930 statutes, this delinquent type was not an insane or ‘born’ criminal, delinquente nato, of the positivist imagination, but a mentally competent and fully responsible violent perpetrator whose premeditated acts revealed an ‘inclination to crime’ owing to his ‘particularly wicked character’.35 Even a cursory comparison with the 1921 Ferri Code project – the first occasion on which positivist theories were articulated in statutory language – makes clear that Rocco and his framers did not aim to introduce the positivist ‘born criminal’ into Italian criminal law. Although Ferri did not identify the delinquente per tendenza as a specific genus in his draft code, his concept of criminal proclivity was rooted fundamentally in the body and mind of habitual and insane offenders, all of whom suffered from congenital or ‘acquired’ pathologies and were thus predisposed to crime. Ferri’s legal standards for presuming criminal propensity also prioritised the ‘psycho-physical personality’ of the wrongdoer: for a penal magistrate, subjective factors alone were sufficient to declare an offender’s ‘persistent tendency to crime’.36 In contrast, the Rocco Code required sentencing judges to evaluate the objective circumstances of the crime before considering the offender’s ‘capacity to offend’  – the same standards that applied to all other culpable offenders. By permitting judges to declare a ‘tendency’ to crime even for a first offence, the 1930 Code also separated the very notion of ‘inclination’ from that of criminal habit. It did much the same in cases of legal insanity: non- and semi-responsible offenders were explicitly exempted from this criminal classification.37 The various definitions of the ‘criminal by tendency’ adopted during the six-year process of writing the Rocco statutes offer further evidence that positivist criminological theory was hardly the driving force behind the concept. The initial inspiration for the category came from Alfredo Rocco himself. As early as 1925, when securing Parliament’s blessing to revise Italy’s penal laws, the Justice Minister announced his intention to target in a revised code what he called ‘instinctive’ criminals. These were not to be construed as ‘born’ delinquents, he assured lawmakers, but as exceptionally dangerous violent offenders.38 Thus, Rocco’s original aim was not to write positivist theory into penal law – indeed, he expressed his distaste for those very ideas. Rather it was to remedy Italy’s alleged ‘sad primacy’ in violent crime, the greatest and most enduring preoccupation of Italian legal experts since national unification.39 A second – and significant – driving engine in shaping the final version of the ‘criminal by tendency’ classification were mainstream social defenders in the Italian legal establishment. Invited by Rocco to evaluate the 1927 preliminary project, legal experts from the Bench, Bar and Academy overwhelmingly rebuked the first iteration of this criminal 34 See, for instance, Gibson (n 4) 235–36; and G Divano, ‘Pene e misure di sicurezza dal progetto Ferri al codice Rocco’ (1981) 11 Materiali per la storia della cultura giuridica 339, 386–88. 35 CP 1930, Art 108. 36 See MGG. Commissione Reale per la riforma delle leggi penali, Relazione sul progetto preliminare di Codice Penale Italiano (Libro I) (Rome, ‘L’Universelle’ Imprimerie Polyglotte, 1921) 248–53 and Arts 27, 32–33. In his introduction to the habitual crime statutes, Ferri defines four types of habitual offender, each of which possesses either a congenital or an ‘acquired’ tendency to crime. 37 CP 1930, Arts 108, 133. 38 See Atti parlamentari della camera dei senatori, Discussioni, Legislatura XXVII, prima sessione, 1924–26, vol 4 (Rome, Tipografia del Senato, 1926) 17 December 1925, 4088–89, 4092; and Atti del parlamento italiano, Camera dei deputati, Discussioni, sessione 1924–25 (XXVII Legislatura), vol 4 (Rome, Tipografia della Camera dei Deputati, 1925), 27 May 1925, 3845. 39 For a detailed discussion of Italy’s ‘sad primacy’ in violence, see Garfinkel Criminal Law (n 7) 23–118.

268  Paul Garfinkel type, but not because it failed to embrace positivism. On the contrary, some worried that Rocco’s references to the criminal’s ‘instinctive tendency to offend’ could be misconstrued as the positivist ‘born’ criminal by another name, while others suspected that Rocco, despite his anti-positivist rhetoric, might have been trying to introduce the delinquente nato through the back door.40 The parliamentary commission charged with examining the 1929 progetto definitivo (final draft of the Penal Code) rejected on similar grounds the updated version of the ‘criminal by tendency’, which had been redefined as an offender with a ‘special predisposition to crime’.41 In response to what had become the most controversial and the most revised – and for some jurists the most despised – part of the 1930 statutes on common crime, Rocco and his framers substantially reworked and refined the final version precisely to answer the critiques of the social defence legal mainstream. Given Rocco’s willingness to embrace such a process of review and revision, it is more accurate to read the ‘criminal by tendency’ not as the appropriation of criminological positivism into Italian penal law, but as an attempt to attack the nation’s violent crime affliction – the principal, decades-old preoccupation of the social defence legal mainstream – in the most authoritarian fashion possible. Just as it is erroneous to interpret the Rocco Code’s conceptions of habitual criminality as positivist in origin, so too is it inaccurate to read them as fundamentally ‘Fascist’. Much of the substance of the 1930 reforms, in fact, grew out of mainstream social defence ideas and penal reform initiatives in both Restoration and Liberal Italy. At least in part, the Rocco statutes on habitual crime reflected nineteenth-century juridical views on and legislative responses to vagrancy. Throughout the pre-unitary and early Liberal eras, legal experts ranked idleness, vagabondage and mendicancy among the most dangerous and parasitic forms of property crime – rooted in the offender’s tenacious refusal to work – and punished them with a muscular mélange of repressive and preventative measures in both penal and police (or public security) legislation.42 Rocco’s own definition of ‘professional’ criminality – living off the ill-gotten gains from habitual thieving – followed along similar lines by limiting this category exclusively to property crime. Still other pre-unitary and Liberal-era precedents laid critical foundations for the 1930 statutes on habitual crime. In his early-nineteenth-century writings on recidivism, Tuscan born jurist Pellegrino Rossi, for example, theorised that criminal persistence revealed the wrongdoer’s social­ dangerousness – or, as he termed it, a ‘special culpability’ – and thus justified prolonged and aggravated ­punishment.43 The ideas of Liberal lawyer and legislator Pasquale Stanislao

40 See, for instance, the views of Cassation Court judge Antonio Marongiu in Corte di Cassazione del Regno, ‘Relazione sul progetto preliminare del nuovo codice penale’ (1928) 34 Giustizia penale 26; the appraisals of the appellate courts of Catania, Naples and Rome in ACS, MGG, Gab, RC, b 8, fascicolo (f) 5, sottofascicolo (sf) 7, 11, 15; the criticisms of the provincial lawyer associations of Livorno, Naples and Palermo in ibid, b 10–11, f 7, sf 29, 35, 39; those of the law faculties of Bologna, Modena and Naples in MGG, LPCPCPP, vol 3, pt 2, 121–22, 126; and those of Giovanni Appiani in ibid, pt 4, vol 4, 298–99. Still others questioned the classification on pragmatic grounds, such as the highly arbitrary basis on which judges could pronounce and punish criminal tendency. Some legal experts also deemed the classification gratuitous since the preliminary draft already proposed draconian penalties for both violent and relapsed offenders. See Garfinkel, Criminal Law (n 7) 432–33. 41 See Atti della commissione parlamentare chiamata a dare il proprio parere sul progetto di un nuovo codice penale (Art 2 della Legge 24 dicembre 1925, n 2660) (Rome, Tipografia del Senato, 1930) 143–44, 442–44, 508, 578–79. Also see Garfinkel, Criminal Law (n 7) 443, 445–47. 42 See Garfinkel, Criminal Law (n 7) 128–33, 144–45. 43 See Giordani (n 12) 395, 428; and V Manzini, La recidiva nella sociologia, nella legislazione e nella scienza del diritto penale (Florence, Fratelli Cammelli, 1899) 416–17.

Punishing the ‘Veterans of Crime’  269 Mancini, moreover, are virtually synonymous with the concepts of criminal inclination and iniquity on which Rocco based his delinquente per tendenza: in the introduction to his 1876 draft criminal code, Mancini claimed that the ‘specific’ recidivist’s ‘pernicious persistence in breaking the law’ laid bare an inner criminal ‘impulse’ and ‘character of greater wickedness’ that not only posed an ‘increased danger to society’ but also merited sterner penal justice.44 The closest relatives to Rocco’s worst reoffenders, however, were clearly the ‘dangerous habitual recidivists’ introduced by Luigi Luzzatti in his 1910 draft law: morally responsible repeaters – both felons and misdemeanants – whose dangerousness was determined according to the nature and number of their offences and, in turn, the grounds for inflicting indefinite post-carceral security measures.45 In light of these striking similarities in defining habitual criminality, it is more than reasonable to conclude that the 1910 anti-recidivist proposal provided Rocco and his framers with a crucial – and very recent – legislative blueprint for their own statutes. These critical antecedents, moreover, went beyond Italy’s national borders: foreign initiatives provided the Rocco Code architects additional models for defining habitual crime in penal reform legislation. Just as their counterparts in pre- and post-unitary Italy had done throughout the nineteenth century, penalists elsewhere in Europe consistently employed the language of habitual and professional crime in their reform schemes, especially in anti-vagrancy provisions.46 After the 1885 anti-recidivist law in France, European legal experts defined the habitual criminal in pre-war legislative ventures much as the Rocco Code would do in 1930: as an exceptional class of offender – both morally responsible and socially dangerous – determined principally according to the quantity and character of their transgressions. It was precisely on this basis that British reformers, for one, targeted ‘habitual’ offenders for individualised punishment in the 1908 Prevention of Crime Act; that German criminalists singled out ‘professional habitual criminals’ for similar treatment in their pre-war penal code drafts; and that Swiss and Austrian legal practitioners identified in reconvicted wrongdoers a ‘tendency’ to crime in their contemporaneous criminal code projects.47 These same approaches to defining dangerous ‘habitual’ and ‘professional’ offenders in penal reform legislation continued into the post-war era as well, particularly in the German-speaking countries, Scandinavia and the new nation states of Eastern Europe.48 44 See Progetto del codice penale del Regno d’Italia presentato alla Camera dei Deputati nella tornata del 25 novembre 1876 dal Ministro di Grazia e Giustizia e dei Culti (Mancini) con la relazione ministeriale. Libro primo (Rome, Stamperia Reale, 1877), 223. 45 CD no 599, 29 November 1910, 2–3. Like the Rocco Code, the Luzzatti project offered a more flexible definition of crimes ‘of the same character’ and even included a veritable forerunner of the ‘criminal by tendency’: a reconvicted murderer requiring only one prior sentence for premeditated homicide, attempted murder or manslaughter (Art 2, n 4). A similar type can even be found in the anti-recidivist bill proposed by Emanuele Gianturco a decade earlier. See CD no 86, 22 November 1900, ‘Abolizione del domicilio coatto e provvedimenti preventivi e repressivi della delinquenza abituale’ in Camera dei Deputati, Raccolta degli atti stampati per ordine della Camera. Legislatura XXI, prima sessione 1900–1902, vol 2 (Rome, Tipografia della Camera dei Deputati, 1902) 30 (Art 7, n 4). 46 See, for instance, Speciale, Legislazioni comparate (n 14) 235–37. Also see Longhi (n 23) 288–93, for examples in Belgian (1891) and Norwegian (1900) legislation. 47 See, among others, Garfinkel, Criminal Law (n 7) 190–91; Battaglini, ‘Some Fundamental Problems’ (n 25); and A De Marsico, ‘Le misure di sicurezza nei progetti preliminari germanico, austriaco e svizzero’ (1912) 3 Rivista di diritto e procedura penale 65. 48 In Weimar Germany, the various penal code projects authored between 1919 and 1927 consistently used the term ‘dangerous habitual criminal’. See, eg, G Piffer (trans), ‘Progetto Ufficiale di un codice penale generale tedesco’ (1925) 35 Scuola positiva 190. For the war time and post-war Swiss projects, see Longhi (n 23) 249–52. For projects in the Scandinavian countries, see, among others, Anon, ‘Il progetto di codice penale norvegese’ (1928) 2 Scuola

270  Paul Garfinkel In short, the Rocco Code’s formulations of habitual crime were far more transnational in nature and substance than they were Italian, ‘Fascist’ or Lombrosian. The evidence points in much the same direction when we re-examine the Rocco Code’s disciplinary sanctions against dangerous reoffenders. Those sanctions – indefinite security measures to be served in an agricultural colony or workhouse – are consistently identified in scholarship as (Italian) positivist in origin. According to some historians, they also served primarily as a hammer to achieve purely fascistic political objectives. But a longer and broader view of anti-recidivist legislation – both in and outside Italy – calls these conclusions into question. In Italy, the very idea of security measures, for one, long predated the scuola positiva, let alone Mussolini’s dictatorship in penal law. The 1819 Criminal Code of the Kingdom of Two Sicilies, to cite just one example, had prescribed ‘relegation’ – i­nternment on an island for six to 10 years – as punishment for dangerous reoffenders. So too did similar social defence measures in pre-unitary police statutes that targeted suspected recidivists, including thieves, fraudsters and vagrants. The Modenese Police Regulations of 1854, for instance, permitted the indeterminate detention of recidivist suspects in workhouses, where they would remain until they had been ‘rehabilitated’.49 In the first decade of Italian nationhood, Liberal jurists drew on these various pre-unitary measures when fashioning their own tool of domicilio coatto – the administrative deportation of ‘recidivist’ property and violent crime suspects and ex-convicts to a network of offshore labour colonies. By 1871 – still years before positivist criminologists had emerged as a minority faction within the legal order – such assignments could last for up to five years and be prolonged during the period of preventative confinement.50 This evidence confirms that mainstream social defence penalists, who were usually lumped together as ‘classical’ jurists in the existing scholarship, were developing their own defensive machinery for combating recidivism. Not only were they fashioning these measures specifically against ordinary reoffenders rather than political enemies, but they were doing so in a language that positivists are generally presumed to have invented only after 1876. In the pre-war era, Liberal legal experts continued to develop these anti-recidivist mechanisms, and despite the arrival of the scuola positiva: they did so consistently according to the mainstream principles of prevention, prophylaxis and paternalism that Rocco and his framers would build and innovate upon later. This machinery figured as part of penal reformers’ wider, gradual effort to build an aggressive dual-track criminal justice system that could both repress and prevent dangerous common crime. The 1889 Zanardelli Code represented a significant step in this direction: it prescribed security measures for some ‘habitual’ alcoholic offenders – among the first in Europe, at least on paper – and a revised system of preventative confinement for juveniles.51 Implemented alongside the Penal Code, the 1889 public security statutes introduced an expanded and increasingly judicialised system of domicilio coatto targeting ex-convicts and suspected recidivists

penale unitaria 138, 138–40. And for references to Eastern Europe, see, for instance, L Lucchini, ‘Sul progetto polacco di codice penale’ (1925) 101 Rivista penale 205, 212–13. 49 For a fuller analysis of these pre-unitary measures, see P Garfinkel, ‘Forced Residence in Liberal Italy: A ­Pre-history, 1815–65’ (2011) 16 Journal of Modern Italian Studies 39. 50 See P Garfinkel, ‘A Wide, Invisible Net: Administrative Deportation in Italy, 1863–1871’ (2018) 48 European History Quarterly 17. 51 CP 1889, Arts 48, 53–56.

Punishing the ‘Veterans of Crime’  271 presumed by law to be ‘habitually guilty’ of violent and property offences and thus socially dangerous.52 ­ Subsequently, Liberal reformers’ aim to transform police administered domicilio coatto into a fully judicialised security measure against habitual offenders – the very core of the anti-recidivist laws introduced between 1896 and 1910 – marked a subsequent phase in their efforts to fortify Italy’s existing, if inchoate, doppio binario system of punishment. By the turn of the century, Liberal lawmakers had outlined a fully-fledged dualtrack system for reoffenders that would closely resemble the one later implemented during­ Mussolini’s dictatorship. In 1900, a Chamber of Deputies commission – notable for the ‘classical’ penalists among its members – was the first to prescribe ‘relegation’ as an indeterminate, post-carceral ‘accessory’ penalty and to target ‘habitual criminals’ explicitly for the measure.53 In a subsequent proposal forwarded later that year, then Justice Minister Emanuele Gianturco introduced new procedural weapons that would also anticipate those formalised in the Rocco Code’s system of security measures.54 In each of these anti-recidivist draft laws, culminating in that of Luzzatti–Fani in 1910, Liberal lawmakers’ schemes for instituting jurisdictional security measures were anchored firmly to mainstream not extreme positivist principles of social defence. When we take again a longer and wider view of the pre-war era, we can see that the development of security measures against reconvicted criminals was not simply an Italian pursuit, but a pan-European one. At both the international and the national level, these anti-recidivist initiatives adhered throughout to mainstream not extreme principles of social defence – just as they did in the Italian case. As early as 1857, delegates at one of the first transnational prison congresses recommended workhouses for discharged convicts ‘in danger of becoming recidivists’. They also proposed still more aggressive security measures, most notably new penal institutions ‘between the prison and … complete freedom’ specifically for dangerous reoffenders and others ‘who cannot be improved’.55 In the late nineteenth century, the IPC consistently refined these ideas at the Association’s periodic conferences. Participants at the 1890 gathering, for instance, endorsed special measures against both ‘habitual’ criminals and ‘inveterate vagrants’; members attending the 1900 summit urged relatively indefinite confinement for reconvicted wrongdoers; and those at the 1910 meeting went even further by supporting indefinite penalties so long as they fitted with ‘the prevailing conceptions of guilt and punishment’ – just as Luigi Luzzatti’s anti-recidivist legislation proposed to do just a few weeks later.56 These ongoing international debates and resolutions both reflected and shaped concurrent penal reform projects and legislative acts in various European countries. The 1893 Swiss Penal Code draft, for one, contemplated relatively indeterminate security measures of 10 to 20 years’ internment for habitual offenders. The 1902 Norwegian Criminal Code legalised a similar penalty of five to 15 years – incidentally, the same terms proposed in Giovanni Giolitti’s 1904 draft law in Italy – for dangerous recidivists, while comparable measures were included in both the

52 See Garfinkel, Criminal Law (n 7) 164–68. 53 ibid 178–80. 54 CD no 86, 22 November 1900, Art 12, which anticipated the Fascist ‘innovation’ of allowing the judge to sentence recidivists to relegation as an accessory punishment after initial sentence had been pronounced. This prescription provides further evidence that the Rocco Code’s treatment of habitual crime was not uniquely ‘Fascist’. 55 See NK Teeters, ‘The First International Penitentiary Congresses, 1846–47–57’ (1946) 26 Prison Journal 190. 56 See Teeters, Deliberations (n 26) 168, 184, 191–92.

272  Paul Garfinkel British Prevention of Crime Act (1908) and the pre-war penal code projects in Germany, Austria and Switzerland.57 This flurry of penal reform legislation makes clear that in the decade prior to the Great War, post-carceral security measures against habitual and other ‘dangerous’ offenders – within a dual-track system of punishment – had emerged throughout Europe as the ideal model for ‘modernising’ criminal justice according to mainstream and transnational principles of social defence.58 These measures, furthermore, were being developed in countries where legal experts’ reception of Italian criminological positivism was on the whole hostile, ambivalent or weak.59 A transnational perspective on the punishment of the most dangerous criminal ‘veterans’ is just as critical for the post-war era because it further challenges conventional assumptions of the Rocco Code’s strategies as unmistakably ‘Fascist’ and Lombrosian in content. Both in Italy and abroad, legal experts’ campaigns for aggressive habitual crime measures only intensified after the brutal conflict, and yet their proposals – always conceived within a dualtrack system of punishment – remained grounded in pre-war and mainstream principles of social defence. During Italy’s post-bellum crisis, jurists demanded more forcefully than ever before new weapons to fight dangerous recidivism but rejected almost unanimously Enrico Ferri’s criminal code draft of 1921 as the blueprint for realising them. Much as they had done in their rebuttal to Ferri’s conceptions of common recidivism, legal practitioners rebuked this part of Ferri’s project because of his fundamentally positivist scheme to replace conventional punishment with individualised, indeterminate and purely defensive ‘sanctions’ tailored solely to the dangerous personality of the offender. In their collective repudiation, mainstream jurists instead formulated numerous counter-proposals that consistently reinforced their pre-war social defence preferences: post-carceral security measures within a more robust double-track system of criminal justice predicated upon existing conceptions of guilt and punishment.60 Articulated both before and soon after Mussolini seized power in 1922, these counter-proposals aligned fully with the most recent legislative prototypes – all based on the dual-track model – under consideration in various northern and eastern European states. At the same time, they anticipated the transnational penal reform movement’s resolutions articulated in its first post-war congresses. At the IPC in 1925, for instance, delegates concluded that security measures should be administered by judges, applied to habitual and other dangerous offenders, prescribed indefinitely (albeit with various limitations and mitigations), and served in special penal institutions and colonies.61 At its inaugural conference one year later, the International Association of Penal Law not only made security measures the centrepiece of discussion, it also reaffirmed the IPC’s resolutions from the previous year.62 Taken together, these legislative projects and conference resolutions offer further evidence that the Rocco Code’s habitual crime ­measures

57 For a fuller comparative analysis, see Garfinkel, Criminal Law (n 7) 190–92. 58 On this point, see also Pifferi (n 5) 86–142. 59 See, eg, RF Wetzell, Inventing the Criminal: A History of German Criminology, 1880–1945 (Chapel Hill, NC, University of North Carolina Press, 2000). 60 See Garfinkel, Criminal Law (n 7) 382–86. 61 S Van Der Aa (ed), Proceedings of the IXth International Penitentiary Congress Held in London, August 1925 (Bern, Stæmpfli & CIE, 1927) 365–74. 62 See C de Wiart and J-A Roux (eds), Premier congrès international de droit pénal, Bruxelles (26–29 juillet 1926). Actes du congrès (Paris, Éditions Godde, 1927) 154–251, 536–82, 633.

Punishing the ‘Veterans of Crime’  273 were grounded in mainstream and transnational conceptions of social defence that were fully developed before the consolidation of Mussolini’s dictatorship. Examining the Rocco Code’s habitual crime measures in transnational context is useful for another reason: while the measures themselves were not essentially ‘Fascist’, they help to explain why Italian jurists embraced a penal code that could be considered ‘Fascist’ in many respects: one that punished, among other things, crimes against the ‘personality of the state’ and offences against ‘racial’ purity. They did so not because they had been successfully ‘fascistised’ as a legal order, as scholarship has often suggested, but because their own serious, unflagging concerns about ordinary crime – and dangerous common crime in particular – had been largely satisfied. Security measures (misure di sicurezza) were, in fact, their highest priority and, thus, the principal reason for their enthusiastic endorsement. Not only were misure di sicurezza the most discussed – and widely celebrated – part of the Code during the six-year reform process, they also represented the culmination of the social defence blueprint that both Italian legal experts and their foreign counterparts had been developing for decades. Italian penalists backed the Code also because they saw in Fascism an aggressive, interventionist government poised to end the years of professional frustration and legislative inertia they encountered under Liberal rule, and precisely by introducing a double-track system of penal justice based on home-grown and transnational principles of social defence and congruent with foreign legislative precedents.63 In response to the 1927 preliminary project, one Bolognese lawyer voiced most explicitly his support on these very grounds: he praised the draft precisely because its double-track system resembled those in foreign projects and followed the resolutions of the 1926 International Association of Penal Law congress, where roughly 300 delegates from more than 30 countries urged the implementation of security measures in national penal legislation.64 A transnational perspective also allows us to recognise more clearly a nationalistic rather than a ‘Fascistic’ motivation for jurists’ support of the Rocco Code: the statutes promised to reclaim for Italy its self-proclaimed standing as the ‘world’s teacher’ of criminal law and to reposition Italian penalists as the leaders of the international penal reform movement. As of 1927, the progetto preliminare (preliminary draft of the Penal Code), published immediately in several languages, had quickly become the new standard in international penal reform circles. Legal experts throughout Europe, all of them in non-fascist countries, proclaimed the Rocco Code’s provisions – and particularly those on dangerous common crime – the most complete systemisation of transnational social defence principles to date and, for that reason, a ‘model’ to be both studied and emulated.65 Indeed, it is highly doubtful that the Rocco draft could have achieved this international acclaim if its strategies for defining and punishing dangerous common crime were fundamentally ‘Fascist’, purely (Lombrosian) positivist or exclusively Italian.

63 See Garfinkel, Criminal Law (n 7) 397–98, 403–06, 426–31, 448–56. 64 ACS, MGG, Gab, RC, b 10, f 7, sf 8, ‘Parere delle Commissioni Reali Straordinarie per gli Ordini degli Avvocati e dei Procuratori presso la Corte d’appello di Bologna’, 15 December 1927, 1–2. 65 See, eg, Deuxième Conférence Internationale d’Unification du Droit Pénal (Rome 21–25 Mai 1928), Actes de la Conférence. Publiés par les soins du comité d’organisation de la conférence (Rome, Istituto Poligrafico dello Stato, 1931) 229–37; and S Van Der Aa (ed), Actes du Congrès Pénal et Pénitentiaire International de Prague, Août 1930, 5 vols (Bern, Stæmpfli & Cie, 1931), vol 1a, 32–64, 457–59; and vol 2, 1–113. Also see Garfinkel, Criminal Law (n 7) 451–52.

274  Paul Garfinkel A broader transnational perspective offers yet another benefit when analysing the Rocco Code’s treatment of habitual crime: it underscores the marginal role the leading members of the scuola positiva italiana played in ‘influencing’ the Rocco Code. Discredited and diminished in the aftermath of the Ferri Code debacle, the positivist criminological movement plunged into deep decline and struggled to remain relevant within the Italian legal order. This descent was most evident in the actions of Enrico Ferri, who found himself in the precarious position of having long ridiculed the penal reform views of Arturo Rocco and mocked the dual-track system of punishment as a theoretical and practical abomination. Seeking to restore his reputation, Ferri grovelled at the feet of the Fascist leadership, contorting his long-standing criminological and socialist views so profoundly as to proclaim a philosophical kinship between Fascism and criminological positivism and, most egregiously, to pronounce Mussolini himself as a man of genius. Both in Italy and abroad, Ferri went out of his way to hail the Fascist penal code project as the ‘most developed’ system to date and the blueprint for other nations to follow. Apart from a handful of moderate positivists who had opposed the Ferri Code and warmed to Fascism early on, adherents of the scuola positiva contributed almost nothing to the shaping of the Rocco statutes. Ferri himself was nominated to Alfredo Rocco’s ministerial review commission in 1928 – perhaps a small perk for his personal and political makeover – but his appointment was purely symbolic: he attended only 11 of 71 meetings and, significantly, missed the discussions on dangerous common crime. Others took part in the official review of the 1927 preliminary draft, but they did so as a distinct minority among the chorus of mainstream juridical voices. And they too found themselves in a difficult position, assuming the contradictory position of criticising the Code’s dual-track system of punishment but taking full credit for its social defence features at the same time.66 Their collective stance only highlighted how little influence the positivist movement really exerted in constructing the Rocco statutes: the ‘triumph’ they were claiming for themselves and their particular social defence ideology was, in reality, a major defeat for the scuola positiva.

Conclusion In 1927, the measures against dangerous common crime articulated in the Rocco Code’s preliminary draft quickly emerged as the comprehensive prototype for criminal law reform among legal experts throughout (non-fascist) Europe. Not only that: they also served as a model within the international penal reform movement more broadly. Simple logic tells us that such a reception would not have been possible had the Rocco Code’s provisions been ‘fascistic’ or Lombrosian in a radical or revolutionary way, or had they been at variance with the international penal reform mainstream. This chapter confirms that reasoning with hard evidence and through a comparative analysis of sources never sufficiently examined alongside the 1930 Code. The Rocco Code’s provisions on dangerous common crime, it has argued, should be read as a fundamentally transnational reconfiguration of social defence ideas, some of which dated back to the early nineteenth century and evolved­



66 See

Garfinkel, Criminal Law (n 7) 409–14, 435–36, 442.

Punishing the ‘Veterans of Crime’  275 thereafter both in Italy and abroad. This section of the Code represents an amalgam of penal reform precepts that were simultaneously pre- and post-unitary, liberal and authoritarian, ‘traditional’ and ‘modern’, and Italian and transnational, and in all cases, firmly anchored to mainstream not extreme social defence principles. These precepts were designed, moreover, not to crack down on political opponents, but to combat what in contemporaries’ eyes were the most dangerous forms of common criminality and recidivism above all. Such an interpretation has important implications for our understanding of the Rocco Code as a whole. Traditionally read as a fundamentally ‘Fascist’ penal code, the Codice Rocco is, in reality, a more complicated text whose many parts cannot be accurately painted with the same ideological brush. This chapter in no way seeks to minimise the most ‘­fascistic’ features of the Code, for example, the reformulated crimes against the state and the ‘health and integrity of the race’ in Book II (the ‘special’ part) which have received the most scholarly attention; rather, it illuminates how other and less studied parts of the Code were built on a more complex set of juridical foundations and ideological concerns. There is, in other words, not just one Rocco Code to be interpreted only in a political, positivist or Italian context, but several Rocco codes within the same document. It is also worth pointing out that while complicating existing interpretations of the Code’s ideological identity, this study ultimately serves to amplify traditional arguments about its authoritarian underpinnings. It does so by revealing the Code’s highly authoritarian approaches to punishing common crime: across-the-board sentencing increases, cumulative rather than concurrent punishment, and automatic security measures for certain first-time offenders, among other things. The recidivism statutes thus underscore the dictatorship’s exaggerated emphasis on intimidation, deterrence, severity, and above all the primacy of state over individual rights throughout the Code. There is no doubt that the Rocco Code’s treatment of habitual and other forms of dangerous common crime fits squarely within this intricate, authoritarian and in some ways ‘Fascist’ legal framework. In illuminating the Code in this way, this study also complements more recent scholarship on the theoretical part (Book I) of the Rocco Code, most notably on the principle of legality under Fascism.67 Maintained from the 1889 Zanardelli statutes, this ostensibly ‘liberal’ principle could be easily subverted by the Code’s more illiberal, flexible and authoritarian prescriptions for disciplining offenders. This chapter’s fuller examination of the habitual crime provisions – the vague legal criteria, enhanced juridical discretion, indefinite security measures, and so on – only deepens our insights into the ways in which the ‘legality’ principle could be undermined in order to subject common and political offenders alike to harsh penal justice. Finally, the complex lineage and anatomy of the Rocco Code’s anti-recidivism statutes tells us something important about legal culture in Italy and abroad in the period under study. For one, it shows us that Fascist penal reformers were keenly aware of penal reform legislation and initiatives abroad, deeply sensitive of foreign legal opinion, and heavily invested in claiming for Italy the leadership of the international penal reform movement and regaining

67 See, for instance, G Neppi Modona, ‘Principio di legalità e giustizia penale nel periodo fascista’ (2007) 36 Quaderni fiorentini per la storia del pensiero giuridico moderno 983; and S Skinner, ‘Crimes against the State and the Intersection of Fascism and Democracy in the 1920s–30s: Vilification, Seditious Libel and the Limits of Legality’ (2016) 36 Oxford Journal of Legal Studies 482.

276  Paul Garfinkel its self-proclaimed status as the madre terra, or motherland of criminal law. At the same time, this study reminds us that on questions of defining and punishing ‘dangerous’ forms of common crime – at least before 1931, when the Rocco Code was ­implemented – there was little juridical and ideological distance separating Fascist Italy from its non-fascist counterparts abroad and within the transnational penal reform movement. It would even seem to suggest that legal reformers in non-fascist Europe and the international penal reform movement were far more authoritarian than scholarship has recognised.

13 Anti-democratic Emotions: Crimes of Honour Before and Under the Fascist Regime EMILIA MUSUMECI

A Law Without Emotions? It is only shallow people who require years to get rid of an emotion. A man who is master of himself can end a sorrow as easily as he can invent a pleasure. I don’t want to be at the mercy of my emotions. I want to use them, to enjoy them, and to dominate them.1

This provocative statement was expressed by Dorian Gray, the famous character from Oscar Wilde’s novel published in 1890. In many ways, it summarises the attitudes of legal scholars towards a criminal law in which emotions are matters to be dominated and kept under control, in favour of reason. Traditionally, emotions and passions have been banished from the law or, at least, assimilated with some form of mental insanity. In fact, on the contrary, in the ­courtroom as on an imaginary stage, the emotions of the accused, witnesses, jurors, lawyers and judges, as well as those of the victims or their relatives and the public, run high. Nevertheless emotions, passions and feelings, relegated to the irrational or pathological sphere, are generally thought to be irrelevant to the criminal law itself, based on Enlightenment principles, which have thoroughly permeated this discipline at all levels, from criminal policy choices (what to punish), the concrete assessment of a criminal action (whether to punish), to the imposition of a penalty by the court and its execution (how to punish). Moreover, emotions have not only been contingent upon historical and geographical variables,2 but also and above all connected with the ideology adopted by each legal system, and criminal law, to the extent that it can be considered as a mirror of the society to which it relates, is a particularly fruitful example. In that regard, it is worth noting that in the perfect architecture of the nineteenth-century penal codes, which were comparable in their organisation to a formal royal garden, something inevitably clashes: beside the geometric precision of legal institutions, masterfully shaped like box hedges, the chimerical concept of ‘irresistible force’ and the emotional and 1 O Wilde (J Bristow, ed), The Complete Works. Vol 3 The Picture of Dorian Gray. The 1890 and 1891 texts (Oxford, Oxford University Press, 2005) 85. 2 For research on the History of Emotions see the research centres at Queen Mary University of London, the Max Planck Institute for Human Development in Berlin, and the University of Western Australia.

278  Emilia Musumeci passionate states seem to be like sprouting weeds, so uncontrollable that they cannot easily be eradicated with the herbicide of legal reason. This desire to bring back instinctive and emotional elements into the most reassuring precincts of legal reason is certainly a factor of continuity that reveals the mentality of the jurist yesterday and today: after all, the emotions are still viewed suspiciously. In a hypothetical ‘legal history of the emotions’, the 1930 Italian Penal Code – the so-called Rocco Code passed under the Fascist regime – plays an important role since it contains one of the few examples of a norm (Article 90) specifically dealing with emotions and passions. The focus here will therefore be on emotions and the role they played in the building of a system of criminal law clearly marked by anti-democratic values. The aim of this chapter is thus to investigate the ideological foundations of criminal law under the Fascist regime in Italy through an analysis of the relationship between emotions and criminal law, focusing on doctrine and the evolution of some fundamental concepts (such as irresistible force, outburst of anger and honour) as they appeared in penal codes before and under Fascism. We have deliberately chosen not to analyse in detail judgments issued by the courts, preferring to refer exclusively to the Cienfuegos case, as emblematic of judges’ approach to the issue of a crime of passion in the period from the second half of the nineteenth century to the advent of the Fascist regime. In particular, the chapter will attempt to answer the following questions: (1) As a preliminary (and theoretical) point, is the law only a ‘rational’ system of norms or is it also influenced by ‘irrational factors’? (2) If not only rational, how could emotions and passions influence the ideology underlying the criminal law before and after the advent of Fascism? (3) Was criminal law during the Fascist regime a ‘rational’ and ‘technical’ system indifferent to emotions? (4) How did the crimes of honour during Fascism reflect gender role stereotypes? (5) Could a feeling like honour, as protected by the Rocco Code, reflect Fascist values and anti-democratic principles? For this purpose, the chapter will be divided into three parts. First, it will address the continuity and discontinuity between nineteenth-century penal codes (the pre-unitarian codes and the Zanardelli Code) and the Rocco Code, focusing on the doctrinal debate about the relevance of non-rational elements of criminal responsibility in supposedly ‘rational’ legal systems and the place of emotions and passions. Secondly, it will consider the role played by crimes of honour in the Rocco Code as gendered crimes (uxoricide and ­infanticide). Finally, it will evaluate why and how the feeling of honour is paradigmatic in the construction of an ideologically oriented ‘Fascist’ criminal law,3 denoting the crucial transition from the Liberal era and exemplifying a change not only of political government but also of the legal system’s core values. 3 On the relationship between Fascism and criminal law in terms of ideological continuity and discontinuity with democratic systems, see M Sbriccoli, ‘Le mani nella pasta e gli occhi al cielo. La penalistica italiana negli anni del fascismo’ (1999) 28 Quaderni fiorentini per la storia del pensiero giuridico moderno 817; ‘Il codice Rocco cinquant’anni dopo’ – (1981) Special Issue 1 La questione criminale; S Skinner, ‘Tainted Law? The Italian Penal Code, Fascism and Democracy’ (2011) 7 International Journal of Law in Context 423; and L Lacchè (ed), Il diritto del Duce. Giustizia e repressione nell’Italia fascista (Rome, Donzelli, 2015). On the role played by legal scholars of penal law under Fascism see F Colao, ‘Un “fatale andare”. Enrico Ferri dal socialismo all’“accordo pratico” tra fascismo e Scuola positiva’ in I Birocchi and L Loschiavo (eds), I giuristi e il fascino del regime (1918–1925) (Rome, Roma TrE-Press, 2015); and MN Miletti, ‘Dall’adesione alla disillusione. La parabola del fascismo nella lettura panpenalistica di Luigi Lucchini’ in I Birocchi and L Loschiavo (eds), I giuristi e il fascino del regime (1918–1925) (Rome, Roma TrE-Press, 2015). In addition, for a comparative approach, see S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015).

Anti-democratic Emotions  279

Emotions Through the Eyes of Legal Scholars Before considering the positive law, it is worthwhile to examine the doctrinal debate on the relevance of emotions and passions in criminal law, given that legal scholars with their polemics prepared the ground, as usual, for often radical legislative changes. In 1874 Pietro Ellero (1833–1933), a jurist well known for his strenuous campaign for the abolition of the death penalty, argued that when faced with alarming criminal phenomena such as lust murders the jurist is always unarmed, as the confusion of feelings and emotions is so dangerously close to madness that only psychiatrists could understand these cases.4 Shortly thereafter something began to change. The breach opened by psychiatry in the study of emotions and passions did not fail to affect legal scholars, who were forced to take a position on an issue that was apparently unsolvable and not delegated only to doctors. In this sense Ettore Lombardo Pellegrino (1866–1952), who decided to dedicate a monograph to the matter,5 clearly stated the need for legal scholars to deal with love: ‘the time is ripe for it … There is a worthier work to be done … and it does not belong … to novelists, but jurists’.6 The eminent Tuscan lawyer and politician Pellegrino Rossi (1787–1848)7 was one of the first to understand the importance of emotions for the law. Analysing ‘acts committed by impulse’ he identified three different interior states: cold blood substantially coincident with premeditation; the ‘state of passion’, relating to a crime of passion; and the ‘state of anger’, which should be connected to provocation.8 If this was the first attempt, the most important effort in cataloguing passions from a legal point of view was the authoritative opinion of Francesco Carrara (1805–88).9 Being one of the firmest opponents of the Positive School, he anchored his own interpretation in the concept of free will. Human freedom, he argued, was necessary to overcome the worst tyrant over human beings, namely their passions,10 which were identifiable in two types, ‘blind’ and ‘reasonable’. Only the first of these (such as anger and fear) were able to affect capacity, acting strongly on the will of the subject.11 The reasonable passions (such as love or friendship) on the contrary, leaving intact the capacity of human reasoning, did not involve any reduction of responsibility. Lino Ferriani (1856–1921), not only a judge but also a careful scholar of legal, social and educational issues, followed the teaching of Carrara. In his monograph, significantly entitled L’amore in tribunale (Love in the Courtroom), he declared himself quite open to the interaction between legal science and other disciplines (especially in order to separate the guilty from the innocent in a crime of passion). Nonetheless he

4 P Ellero, La questione sociale (Bologna, Tip Fava e Garagnani, 1874) 395. 5 E Lombardo Pellegrino, L’amore nel diritto (Messina, Tip Dell’Epoca, 1893). 6 ibid 3–4. 7 On Rossi note L Lacchè, ‘Pellegrino Rossi (voce)’ in Enciclopedia Italiana di Scienze, Lettere ed Arti. Ottava Appendice. Diritto (Rome, Istituto dell’Enciclopedia Treccani, 2012) 302–06. 8 P Rossi (with annotations by E Pessina), Trattato di diritto penale (Naples, Rondinella, 1853) 165–68. 9 Note especially P Grossi, ‘Assolutismo giuridico e diritto penale (a proposito di recenti appuntamenti carrariani e della ristampa della “Parte generale” del “Programma del corso di diritto criminale” di Francesco Carrara)’ (1995) 24 Quaderni fiorentini per la storia del pensiero giuridico moderno 469; MA Cattaneo, Francesco Carrara e la filosofia del diritto (Turin, Giappichelli, 1988); P Cappellini, ‘Francesco Carrara e il problema della codificazione del diritto’ (2007) 2 Criminalia 305. 10 F Carrara, Programma del corso di diritto criminale (Lucca, Tip Canovetti, 1863) 16. 11 ibid 147, § 321.

280  Emilia Musumeci identified the jurist as the only one able to turn on ‘the sun of justice’12 and thus distinguish between the blind and reasonable passions, as suggested by Carrara. According to Ferriani love, universally recognised as the most noble of emotions, could suddenly become a sham: ‘the murder that occurs with the halo of love can be the result of a low sensuality or sordid speculation’.13 With different reasoning and the aim of subverting this approach some jurists of the ­Positive School joined the debate. Among others, Enrico Ferri (1856–1929),14 criminologist and lawyer, rejected the distinction promoted by Carrara and conversely affirmed the existence of social and anti-social passions. The first type would correspond to the peaceful coexistence of people, including so-called moral passions, because that morality can be understood as one of the primary functions of human beings living in society. The anti-social passions, on the contrary, lead to a general disintegration in the order that characterises civil society. From this point of view, Ferri claimed that cases in which the act was due to an aberration of a social passion, such as love or justice, should be non-punishable and, conversely, not justifiable if the crime was generated by an anti-social passion, such as revenge, envy or lust.15 The opinion expressed by Ferdinando Puglia (1853–1908) was more categorical and went  to the root of the problem: Carrara’s theorisation was flawed, ab initio, because it was based on the supposed existence of an offender’s moral responsibility, whereas on the contrary it would be possible at most to define it a social responsibility. Given the nonexistence of free will, he argued, it makes no sense to talk about the degree of freedom that is left to the criminal who is prey to his passions; rather, attention should be focused on the danger that the offender could pose to the social order.16 Also Raffaele Garofalo (1851–1934), another well-known exponent of the Positive School, although he came to conclusions in part different from those of Puglia, seemed to be convinced of the diversity in the emotions and feelings of offenders, given his strong opinion that ‘all criminals are … PSYCHICALLY abnormal men; MANY of them are also ANTHROPOLOGICALLY [different from other human beings]’.17 Starting from this shocking assumption, according to Garofalo, offenders were deranged as a form of psychic anomaly that could fluctuate in degree, and their emotions were to be considered, one way or another, to be pathological. These different points of view and the animated debate that ensued show how the question of the relevance of emotions was not at all easy to answer, especially in a legislative framework that was fragmentary, contradictory and lacunose. It is therefore important to analyse how passions and emotions were disciplined by Italian criminal codes.

12 L Ferriani, Tra un processo e l’altro. L’amore in tribunale. Appunti penali (Bologna, Tip Succ Monti, 1889) 170. 13 ibid 136. 14 On Ferri note M Stronati, ‘Ferri Enrico (voce)’ in Enciclopedia Italiana di Scienze, Lettere ed Arti. Ottava Appendice. Diritto (Rome, Istituto dell’Enciclopedia Treccani, 2012). 15 E Ferri, ‘Il delitto passionale nella civiltà contemporanea’ in E Ferri, Difese penali. Studi di giurisprudenza penale. Arringhe civili. Volume III. Leggi penali e tipi di delinquenti. La riforma della giustizia penale. Arringhe civili (Turin, Utet, 1925). 16 F Puglia, ‘Passioni ed emozioni. Loro influenza sulla responsabilità dei delinquenti’ (1882) III Archivio di Psichiatria, Scienze Penali ed Antropologia Criminale per servire allo studio dell’uomo alienato e delinquente 394. 17 R Garofalo, Criminologia. Studio sul delitto, sulle sue cause e sui mezzi di repressione (Turin, Bocca, 1885) 114. Capitals as in the original text.

Anti-democratic Emotions  281

Inside the Pre-unitarian Codes: The Dominance of ‘Irresistible Force’ The question of the relevance of emotions and passions in the assessment of criminal responsibility was obviously not confined to this doctrinal debate but was also present in the first experiences of penal codes in force in the nineteenth century, whose different values inevitably reflected a different approach to emotions, passions and feelings. The first attempt to use strong emotions like honour as an exculpatory circumstance, for the purpose of eliminating or partially reducing the free will of the accused, occurred with the introduction of the concept of ‘irresistible force’ (forza irresistibile).18 In other words, this concept encapsulated the idea that at the time of committing a crime, the accused was prey to violent emotions or passions like anger or jealousy. In nineteenth-century codifications, this was otherwise a demonstration of how, directly or indirectly, emotional and passionate states could affect criminal responsibility, implying a lenient sentence or even an acquittal. Among the nineteenth-century codes a first reference to emotional factors can be identified in the Universal Criminal Code promulgated in 1803 by Francis II.19 This was the third penal code passed in Austria within a few decades, and was also adopted in Lombardy-Venetia until the unification of Italy, clearly influenced by the Constitutio criminalis Theresiana of 1768 and, later, by the General Code on Crimes and their Punishments of Emperor Joseph II of 1787 (the so-called Josephina, the ‘first modern penal code’).20 The 1803 Code included in §2, together with the impossibility of punishing the insane as lacking culpability, other situations that excluded malicious intent, such as being ‘totally deprived of the use of reason’, unintentional drunkenness (or rather, drunkenness not induced to facilitate the commission of the crime), being below the age of responsibility (that is, under 14-years-old), mistake, disturbance of the senses and irresistible force. The latter, for the contemporary positive jurist, seems to invoke the concept of ‘force majeure’, bypassing the physicality of criminal conduct. However, on the contrary, it was a demonstration of how, directly or indirectly, emotional and passionate states could affect volition. Moreover, malicious intent must in fact be understood as the equivalent of contemporary malice (dolo, a form of mens rea encompassing intention and wilfulness), which was considered an essential element of a crime.21 An important role performed by the concept of malice was also reflected in the influence of French legislation in Italy. In addition to the ‘minor’ examples, such as the Penal Code of the Principality of Lucca of 1807, and that of the Principality of Piombino in 1808,22 this

18 Note D Santamaria, ‘Forza irresistibile (voce)’ in Enciclopedia del diritto (Milan, Giuffrè, 1969) XVIII, 5–15; R Crespolani, ‘Forza irresistibile (voce)’ in Enciclopedia giuridica italiana (Milan, Società Editrice Italiana, 1916) VI, III, 350–56; G Belli, ‘Forza irresistibile (voce)’ in Nuovo Digesto Italiano (Turin, Utet, 1938) VI, 113. On the legal debate about irresistible force between the nineteenth and twentieth centuries in Italy see E Musumeci, Emozioni, crimine, giustizia. Un’indagine storico-giuridica tra Otto e Novecento (Milan, FrancoAngeli, 2015) 30–70. 19 On this code’s troubled background note S Tschigg, ‘La formazione del Codice Penale Austriaco del 1803’ in S Vinciguerra (ed), Codice penale universale Austriaco (1803) (Padua, Cedam, 1997). 20 G Tarello, Storia della cultura giuridica moderna. I. Assolutismo e codificazione del diritto (Bologna, il Mulino, 1976) 506. 21 ibid. 22 On these codes note T Padovani, ‘Uno sguardo d’insieme sul Codice penale lucchese del 1807’ in S Vinciguerra (ed), Codice penale per il Principato di Lucca (1807) (Padua, Cedam, 2000); and A Cadoppi, ‘Il primo codice penale

282  Emilia Musumeci was particularly evident in the most important code promulgated in this period, the Law on Crimes and their Punishments of 20 May 1808 no 143, promulgated by Joseph Napoleon in the Kingdom of Naples.23 This law was passed in the context of a series of systematic laws and reforms undertaken with a modernising aim, even though it did not always live up to expectations from the practical point of view, due to the difficulty of uprooting centuriesold structures,24 especially in such a short time (1806–08).25 This legal system, strongly influenced by both the Roman legal tradition and the ‘Lombard model’26 (the project for the Penal Code for the Italic Kingdom of 1806),27 was so rich in definitions and classifications, especially in the general part (dealing with foundational principles and concepts of criminal law) that it appeared to be more a treatise than a code.28 However, although it did not include any reference to irresistible force,29 it did mention anger and resentment (but only if they derived from an insult received) and, quite unusually, it admitted the possibility of invoking as excusatory other passions, thus leaving enough space to appeal to all kinds of emotional and passionate states resulting from provocation or other cases determined by the law. In a more specific way the concept of irresistible force was already regulated by ­Article 64 of the Napoleonic Code (1810), in force also in the Italian peninsula in the territory under French domination as the Code of Crimes and Punishments for the Kingdom of Italy (1811). The Code called for non-punishment in cases where the act was not only committed ‘in a state of madness’ but also if the act was the result of ‘insuperable force or an unsettled state of sentiments’. Subsequently, and clearly inspired by the Napoleonic Code, this concept was included in Italian law in the Penal Code of the Kingdom of the Two Sicilies (1819)30 and in the Sardinian Penal Code (1859),31 where it was specifically italiano. Il codice del Principato di Piombino (1808)’ in S Vinciguerra (ed), Codice penale per il Principato di Piombino (1808) (Padua, Cedam, 2001). 23 See generally A Cavanna, ‘Le leggi penali di Giuseppe Bonaparte per il Regno di Napoli (1808): veduta aerea degli scavi’ in S Vinciguerra (ed), Le leggi penali di Giuseppe Bonaparte per il Regno di Napoli (1808) (Padua, Cedam, 1998). 24 On the pre-Napoleonic period compare R Ajello, Preilluminismo giuridico e tentativi di codificazione nel Regno di Napoli (Naples, Jovene, 1968). 25 Note P Villani, ‘Il decennio francese’ in G Galasso and R Romeo (eds), Storia del Mezzogiorno, v IV, t II, (Rome, Edizioni del Sole, 1986); and G Galasso, Storia del Regno di Napoli. 4. Il Mezzogiorno borbonico e napoleonico (1734–1815) (Novara, Istituto Geografico De Agostini, 2008). 26 A Cadoppi, ‘Una “Pompei” del diritto penale’ in S Vinciguerra (ed), Le leggi penali di Giuseppe Bonaparte per il Regno di Napoli (1808) (Padua, Cedam, 1998). 27 On this project and that of 1809 see E Dezza, ‘Appunti sulla codificazione penale nel primo Regno d’Italia: il progetto del 1809’ in S Vinciguerra (ed), I codici preunitari e il codice Zanardelli (Padua, Cedam, 1993). 28 M Da Passano, ‘La codificazione del diritto penale a Napoli nel periodo francese’ in Vinciguerra (ed), Le leggi penali di Giuseppe Bonaparte per il Regno di Napoli (1808) (Padua, Cedam, 1998). 29 Compare G De Francesco, ‘La forza della ragione e la ragione della storia. Il seducente eclettismo della codificazione penale napoletana’ in S Vinciguerra (ed), Le leggi penali di Giuseppe Bonaparte per il Regno di Napoli (1808) (Padua, Cedam, 1998). 30 Note S Vinciguerra and M Da Passano (eds), Codice per lo Regno delle due Sicilie (1819). Parte seconda. Leggi penali (Padua, Cedam, 1994); and AM Stile, ‘Il codice penale del 1819 per lo Regno delle Due Sicilie’ in S Vinciguerra (ed), I codici preunitari e il codice Zanardelli (Padua, Cedam, 1993). 31 On codification in the Sardinian-Piedmontese kingdom see S Vinciguerra, ‘Breve profilo storico-giuridico del codice penale albertino’ in S Vinciguerra and M Da Passano (eds), Codice penale per gli Stati di SM il Re di Sardegna (1839) (Padua, Cedam, 1993); M Da Passano, L’estensione del codice penale albertino alla Sardegna in S Vinciguerra and M Da Passano (eds), Codice penale per gli Stati di SM il Re di Sardegna (1839) (Padua, Cedam, 1993); and S Vinciguerra, ‘I codici penali sardo-piemontesi del 1839 e del 1859’ in S Vinciguerra (ed), I codici preunitari e il codice Zanardelli (Padua, Cedam, 1993).

Anti-democratic Emotions  283 used by defendants in cases of crimes of passion, based on the fact that irresistible force was used in every case where the crime originated in intense emotions and passions. Similarly, Article 94 of the Sardinian Code (1859) stated: ‘there is no crime if the accused was in a state of absolute imbecility, insanity, or morbid rage, or if there was suddenly a force which could not be resisted’. No references, however, either to irresistible force or to passions and emotions, were to be found in the Penal Code of the Papal State promulgated by ­Gregory XVI in 1832,32 nor in the Grand Duchy of Tuscany’s Code of 1853.33

During an Outburst of Anger or Intense Pain: The Zanardelli Code From this excursus into the pre-unification codes two opposing models emerge in the ­evaluation of the relevance of passions and emotions. On the one hand, asserting the concept of irresistible force, certain emotions were reduced to a pathological element capable of depriving a person of his capacity for self-control, leaving him, even momentarily, prey to his impulses. Consequently, adopting this approach, any kind of crime of passion could be excused. On the other hand, the failure to indicate any reference to irresistible force, or the addition of the adjective ‘external’, seemed to point to the adoption of a more repressive model of responsibility. The addition of this adjective to an irresistible force was indeed aimed at ousting the direct effectiveness of any interior or psychological element, giving importance only to situations externally affecting the accused’s conduct, thus being more akin to today’s concept of duress of circumstances or state of necessity. These ­contrasting approaches and the resulting different legislative provisions created many problems of ­coordination after the Unification of the Kingdom of Italy in 1861. For this reason, after unification, it became necessary to create a criminal code that was valid throughout the national territory. After the temporary application of the Sardinian Code, the Zanardelli Code was approved in 1889, to become the first Penal Code of unified Italy. It made no explicit reference to emotional states and passionate crimes, but its concrete application involved an expansion of the concept of mental insanity to such a point that it de facto included them. In particular, Article 46 stated: ‘a person who, at the time when he committed the crime, was in such a state of infirmity of mind or consciousness as to take away the freedom of his own acts shall not be punishable’. In short, the exclusion of criminal responsibility34 was linked to the accused’s pathological state, so even emotions and a diseased state of mind were considered.35 32 M Da Passano, ‘I tentativi di codificazione penale nello Stato Pontificio (1800–1832)’ in S Vinciguerra (ed), I regolamenti penali di Papa Gregorio XVI per lo Stato Pontificio (1832) (Padua, Cedam, 2000); and T Padovani, ‘Considerazioni sulla “parte generale” del Regolamento Gregoriano’ in S Vinciguerra (ed), I regolamenti penali di Papa Gregorio XVI per lo Stato Pontificio (1832) (Padua, Cedam, 2000). 33 See generally S Vinciguerra and M Da Passano (eds), Codice penale pel Granducato di Toscana (1853) (Padua, Cedam, 1995). 34 On the doctrinal debate about free will and imputability before and after the promulgation of the Zanardelli Code see E Musumeci, Cesare Lombroso e le neuroscienze: un parricidio mancato. Devianza, libero arbitrio, imputabilità tra antiche chimere ed inediti scenari (Milan, FrancoAngeli, 2012) 145–73. 35 G Crivellari, Il Codice Penale per il Regno d’Italia interpretato sulla scorta della dottrina, delle fonti, della ­legislazione comparata e della giurisprudenza. Volume primo. Dell’applicazione della legge penale (Turin, Utet, 1890) CCXLV.

284  Emilia Musumeci Did the abandonment of the disputed concept of irresistible force really put emotions and passions outside the courtroom? Although the language of the new Code deleted the reference to the much stigmatised ‘irresistible force’, passions and emotions were still ­relevant. In fact, Article 51 of the Zanardelli Code declared that they could lead to a lighter sentence. It stated: ‘whoever committed the crime in an outburst of anger or intense pain, caused by unjust provocation’ had to be sentenced to a lenient punishment. The decrease in the sentence allowed by Article 51 was greater in cases of ‘serious provocation’. Overall therefore, in the Zanardelli Code, even though the stigmatised reference to irresistible force had been eliminated, passions and emotions were not immaterial in criminal matters and were significant in favour of the offender, albeit under strict conditions. In that sense, they had to have compromised so severely the conscience and freedom of the offender’s actions that he could be said to fall into the category of total or partial insanity, under Article 46. Alternatively, the offender could use provocation under Article 51 as a mitigating circumstance, but only if the crime was an immediate and proportionate reaction to the unjust provocative act.

The Indifference of Emotional and Passionate States: The Turning Point of the Rocco Code ‘It is a pleasure to read in the newspapers about the crimes of passion, and about the holy (even heroic) vengeance of the betrayed husband … who bumped off the third one [the wife’s lover], was acquitted by the jury, and acclaimed by the public’.36 Thus the jurist and philosopher Pio Viazzi (1868–1914) sarcastically (and with a good dose of moralism) commented on the natural culmination of moral degeneration represented by the spread of sexual offences in the era of ‘triumphant pornography’,37 succeeding well in synthesising the disappointment many felt about the apparently excessive laxity in the way crimes of passion were judged. One of the most emblematic cases of such a crime in this period involved the Chilean student, Carlos Cienfuegos who killed his lover, the Countess Blanche Hamilton on 6 March 1915 in Rome. Cienfuegos, suspecting that his lover was cheating on him, killed her in a fit of jealousy by shooting her in a hotel room. The case is particularly well known for the defensive harangue made by the silver-tongued ‘Prince of the courtroom’, Enrico Ferri, criminologist and pupil of Lombroso. Ferri, in his memorable speech, later published under the title of ‘Amore e Morte’ (‘Love and Death’),38 invoked the insanity defence. He argued that the accused was ‘in a state of vertigo that eclipsed his feelings and his will’, with the theatrical tone typical of the lawyers of the time. The story of Cienfuegos, in the grip of uncontrollable and debilitating emotions, was even compared with the Shakespearean

36 P Viazzi, Sui reati sessuali. Note ed appunti di psicologia e giurisprudenza. Con prefazione del Prof Enrico Morselli (Turin, Bocca, 1896) 190. 37 Viazzi (n 36) 187, used this emphatic expression to describe the culture of low morals and general corruption of his time. 38 E Ferri, ‘“Amore e Morte” – Difesa di Carlo Cienfuegos, uccisore della contessa Hamilton (Corte d’assise di Roma – 7 aprile 1916)’ in E Ferri, Difese penali. Studi di giurisprudenza penale. Arringhe civili. Volume II. I violenti. Figure diverse. Le vittime (Turin, Utet, 1925).

Anti-democratic Emotions  285 tragedy Othello, in which the poor countess Hamilton plays the role of Desdemona. The result was that an explosive mix of honour and jealousy had created in the accused a sort of ‘emotional derangement’, which eliminated his ability to understand and exercise his free will.39 The Cienfuegos case is moreover part of a wider debate on the ‘easy acquittal’ of crimes of passion in the early decades of the twentieth century.40 Despite the precautions that were taken to limit as much as possible the numerous easy acquittals of these sorts of crimes, especially those involving what was called the feeling of offended ‘honour’, in the years before the promulgation of the Rocco Code in 1930 the desire to exclude situations of impunity for crimes generated by emotions and strong passions was quite common in the literature and among the compilers of the new Code. However, the efforts to avoid overly lenient punishment for such offences were often in practice ineffective. In particular, the abuse of the defence of provocation and, above all, the expansion of the concept of insanity, were very frequent. In order to bypass the strict principles imposed by the Zanardelli Code, judges sometimes endorsed the existence of abnormal forms of mental disease, according to the psychiatry of the time.41 As it was not always possible to plead honoris causa, that is, that conduct was a matter of honour, it was quite common to consider the crime of passion as a morbid act, and it was considered as such by Arturo Morselli and the coroner Secondo Laura,42 who talked about a disease called ‘delusion of jealousy’.43 The matter became so urgent as to induce the Minister of Justice, Alfredo Rocco,44 prior to the adoption of the new Penal Code in 1930, to criticise harshly what were considered scandalous acquittals as the fruit of ‘prejudices that still persist, as residues of barbarism or savage tradition’.45 According to the Minister, far from wishing to deny a feeling like honour, a sentiment at the base of the Fascist state, it was necessary to avoid the constant acquittal of those who acted in a state of excitement for passionate reasons, which could threaten ‘the fibre of the Nation’.46 Some years later, the promulgation of the Rocco Code was a real turning point i­ nvolving the introduction of a new norm. Specifically, according to Article 90 of the Rocco Code, it was not possible to invoke ‘emotional and passionate states’ as factors invalidating free will and mental capacity. According to this approach, the irrelevance of emotions and passions only made sense if crime was understood to be a matter of complete indifference

39 ibid. 40 V Vizzini, ‘La nostra fatica. L’art 90 del codice penale e le sue arbitrarie applicazioni’ (1935) Rassegna giuridica nissena 17. 41 FS Fortuna, ‘Gli stati emotivi e passionali. Le radici storiche della questione’ in S Vinciguerra and F Dassano (eds), Scritti in memoria di Giuliano Marini (Naples, ESI, 2010). 42 S Laura, Trattato di medicina legale (Turin, Tip Camilla e Bertolero, 1874) 782. 43 A Morselli, Manuale di Psichiatria ad uso dei medici e degli studenti (Naples, Idelson, 1921) 471. 44 On Alfredo Rocco note P Grossi, Scienza giuridica italiana. Un profilo storico, 1860–1950 (Milan, Giuffrè, 2000) 92–93 and 155–63; P Costa, ‘Alfredo Rocco (voce)’ in I Birocchi, E Cortese, A Mattone and MN Miletti (eds), Dizionario biografico dei giuristi italiani (XII–XX secolo) (Bologna, il Mulino, 2013); M Sbriccoli, ‘Rocco, Alfredo’ in V De Grazia and S Luzzatto (eds), Dizionario del fascismo. II. L–Z (Turin, Einaudi, 2005); and G Chiodi, ‘Alfredo Rocco e il fascino dello Stato totale’ in I Birocchi and L Loschiavo (eds), I giuristi e il fascino del regime (1918–1925) (Rome, Roma TrE-Press, 2015). 45 So Alfredo Rocco stated in the circular quoted by G Gregoraci, ‘La circolare del ministro Rocco ed il problema della imputabilità nei reati passionali’ (1930) I La Scuola Positiva 353. 46 Gregoraci (n 45) 353. Gregoraci endorsed the criminal policy underlying Rocco’s circular.

286  Emilia Musumeci to ­psychological or sociological factors. In particular, Alfredo Rocco, stated during the preparatory work for the Code that emotions and passions can lead to mental disturbances, but since they can lead to the most honest as well as the most dishonest actions, it is always necessary to say that actions should be considered for what they are and then, when we are faced with a crime, there is no need to ascertain whether its origin was an emotion or a passion.47

Article 90 was introduced into the chapter relating to responsibility, which also included the insanity defence, so it must necessarily be read in the context created by Article 85, which opened that chapter and provided that only ‘persons who possess the capacities of intending and willing (intendere and volere) are responsible (imputabile)’. The notion of criminal responsibility or mental capacity48 was based on a mixed model,49 combining a pathological (empirical) dimension with a legal-psychological dimension.50 In this context, moreover, Articles 88 and 89 were included to cover respectively total and partial mental insanity, which had to be interpreted as excluding the conditions identified in Article 90. Since the promulgation of the Rocco Code the concise statement of Article 90 has given rise to controversial interpretation and polemics to the point that its reform or abrogation have often been invoked.51 In general, legal scholars agreed that ‘emotional and passionate states’ in Article 90 included psychological disturbance, excitement or loss caused in an individual following a specific event such as an insult received or the discovery of adultery. The emotional state would thus involve dominance over an individual’s state of mind by a particular passion, leading to a restriction of self-control and reason. Beyond these mostly undisputed generic assumptions, in relation to other issues like imputability and free will or recidivism, the approach of legal scholars interpreting the Rocco Code appeared to be influenced by one or other of the contemporary doctrinal positions (Classical School, Positivist School, Third School).52 Likewise, the opinion of the compilers of the Rocco Code is easy to understand. First, Arturo Rocco,53 who had been arguing in favour of the inclusion of Article 90 in the new Code since his famous inaugural lecture at the University of Sassari in 1910, had adopted the technical-legal doctrine of criminal law. According to the 47 Ministero della giustizia e degli affari di culto, Verbali delle sedute della Commissione. Libro 1 del Progetto preliminare di un nuovo codice penale (Rome, Tip Delle Mantellate, 1929) II, 284. 48 A Crespi, ‘Imputabilità (diritto penale) (voce)’ in Enciclopedia del diritto (Milan, Giuffrè, 1970) XX; G Marini ‘Imputabilità (voce)’ in Digesto delle discipline penalistiche (Turin, Utet, 1992) VI; and G Fiandaca and E Musco, Diritto penale. Parte generale (Bologna, Zanichelli, 2002) 284–89. 49 T Bandini and M Lagazzi, ‘Le basi normative e le prospettive della perizia psichiatrica nella realtà europea contemporanea: l’imputabilità del sofferente psichico autore di reato’ in A Ceretti and I Merzagora (eds), Questioni sull’imputabilità (Padua, Cedam, 1994) 54. 50 See D Pulitanò, ‘L’imputabilità come problema giuridico’ in O De Leonardis et al (eds), Curare e punire, ­Problemi e innovazioni nei rapporti tra psichiatria e giustizia penale (Milan, Unicopli, 1988). 51 For instance recently Article 90 has been defined as ‘a detestable juridical invention’: see O Di Giovine, ‘­Neuroscienze (diritto penale) (voce)’ in Enciclopedia del diritto. Annali (Milan, Milano, 2014) VII. 52 On the debate between the Schools of penal law in Italy (and criticism of the emphasis on it) see M Sbriccoli, ‘Caratteri originari e tratti permanenti del sistema penale italiano (1860–1990)’ in M Sbriccoli, Storia del diritto penale e della giustizia. Scritti editi e inediti (1972–2007) vol I (Milan, Giuffrè, 2009) 604–05. 53 On Arturo Rocco see A De Marsico, ‘Arturo Rocco’ (1942) Annali di diritto e procedura penale 469; G Maggiore, ‘Arturo Rocco e il metodo “tecnico-giuridico”’ in Studi in memoria di Arturo Rocco (Milan, Giuffrè, 1952) II; L  Garlati, ‘Arturo Rocco inconsapevole antesignano del fascismo nell’Italia liberale’ in I Birocchi and L Loschiavo (eds), I giuristi e il fascino del regime (1918–1925) (Rome, Roma TrE-Press, 2015); and L Garlati and MN Miletti, ‘Rocco Arturo’ in I Birocchi, E Cortese, A Mattone and MN Miletti (eds), Dizionario biografico dei giuristi italiani (XII–XX secolo) (Bologna, il Mulino, 2013).

Anti-democratic Emotions  287 i­ ntentions of its followers, that doctrine was focused on removing from the criminal law any possible contamination by anthropological, social and philosophical sciences, in order to go beyond the long-running dispute between the Classical School and Positivist School. In reality, the supposed ‘neutrality’ of the technical-legal approach adopted by Arturo Rocco, and put into practice with the promulgation of the Rocco Code, could be considered a sort of ‘alibi, an excuse to turn their eyes to heaven and avoid having to see what Fascism was doing to ­Italian criminal science’.54 If, as we have seen, Article 90 of the Rocco Code seemed to consider all actions as ‘neutral’ and free of any emotional and passionate factor, elsewhere in the same Code the relevance of certain emotions and passions (primarily honour) was taken into account. This produced a reconfigured hierarchy between them, which was perfectly in line with the ideals espoused by the regime, as well as with what were at the time socially well-defined gender roles.

Gendered Emotions In order to explore this hierarchy of emotions, we will investigate two different kinds of ‘gendered crimes’ in which the feeling of honour was considered differently by penal law: on the one hand, infanticide honoris causa (as the ‘female crime’ par excellence) and, on the other, honour killing (as a typical ‘male crime’). In particular, if emotions and passions could no longer be used as part of the insanity defence in light of Article 90, they could be relevant as mitigating circumstances in other cases (not only infanticide but also ‘lust kidnapping’ and honour killing). The only feeling to be protected was, in other words, honour.

A.  Female Honour from the Pre-unitarian Codes to the Zanardelli Code: Continuity and Change in the Crime of Infanticide The crime of infanticide honoris causa was not a novelty under the Fascist regime, but we can see how it was significantly changed. In particular, it involved both a continuity and discontinuity of elements from before and after the regime. In that regard, in the context of nineteenth-century Italian doctrine, a clear distinction was drawn between two categories of women: as judge Lino Ferriani (1856–1921) claimed, honour, like a divine ray illuminating the dark life of women, was the ideal factor that separated ‘lost women’ from ‘honest women’.55 Thanks to the valorisation of maternal honour, the crime of infanticide gradually underwent a significant change from the legal tradition of previous centuries, in which it had generally56 been defined as murder and sometimes punished with harsher penalties.57 54 Sbriccoli, ‘Le mani nella pasta e gli occhi al cielo’ (n 3) 849. 55 L Ferriani, La infanticida nel codice penale e nella vita sociale (Milan, Dumolard, 1886) 114. 56 Infanticide was punished as an autonomous crime for the first time in the Constitutio Criminalis Carolina (1532). See G Tinunin, ‘L’amore tragico: abbandono e infanticidio nella tarda età moderna’ in L Accati (ed), Madri pervasive e figli dominanti. Dinamiche sociali e violenza nella Controriforma (Florence, European Press Academic Publishing, 2003) 154. 57 On the comparative history of infanticide see T Pedio, La soppressione del neonato per causa di onore (Milan, Giuffrè, 1954) 1–20.

288  Emilia Musumeci In the nineteenth century by contrast, infanticide came to be seen as a separate crime, which could be committed only by a mother and which was increasingly interpreted with a focus on the feeling of honour. This change can be traced to the period after the Enlightenment,58 and especially reading through the work of Cesare Beccaria (1738–94), who in his famous On Crime and Punishments, defined infanticide as the result of the unavoidable conflict in which a woman is placed if she has given in to weakness or violence.59 Beccaria questioned ‘how could one who finds herself caught between disgrace and the death of a being unable to feel what harms it, not prefer the latter to the certain misery to which she and her unhappy fruit would be exposed?’60 This crime was included by Beccaria in the category of ‘crimes difficult to prove’, but although a serious offence, punishment of it was considered too excessive due to its psychophysical context and related social implications.61 Similarly, the renowned jurist and philosopher, Gian Domenico Romagnosi (1761–1835), wondering whether infanticidal mothers were really evil women or not, argued that infanticide originated ‘from an admirable feeling, wrongly employed’.62 In other words, the sentiment of purity and sexual honour were inverted as if in a perverse game of mirrors. This transition influenced the promulgation of nineteenth-century penal codes in which the cause of honour was consequently and problematically63 included as mitigation for the punishment of infanticide. Unlike honour killing (usually a wife-murder committed by her husband to avenge the ‘injury to his honour after a betrayal’),64 in the case of infanticide the cause of honour was a sort of ‘shield’ used by the woman to protect her sexual purity65 and to hide her dishonour with a retroactive and redemptive effect, converting the act from a private sin into a collective drama, in which the infanticidal mother who had ‘saved’ her honour by suppressing her illegitimate offspring became, paradoxically, a heroic figure. In other words, the crime itself was proof of the honour of the woman who had committed it. Consequently, infanticidal women were often sentenced according to their social class or level of ‘social respectability’. For example, an unmarried girl from a good family, who had been ‘seduced and abandoned’ and had killed her child to hide her dishonour, would be punished in a clement way or would be acquitted. On the contrary a prostitute, being already a ‘dishonoured woman’ or rather, a woman already without honour, would be harshly judged. Thus, the concept of female honour ultimately became the key to defining the crime of infanticide itself, so much so that ‘honest’ women could commit infanticide

58 L Garlati, ‘Honour and Guilt. A Comparative Study on Regulations on Infanticide Between the Nineteenth and Twentieth Century’ in MG Di Renzo Villata (ed), Family Law and Society in Europe from the Middle Ages to the Contemporary Era (Cham, Springer Switzerland, 2016) 259. 59 C Beccaria (R Bellamy, ed), On Crime and Punishments and Other Writings (Cambridge, Cambridge ­University Press, 2003) 81. 60 ibid. 61 N Contigiani, Uccidere in famiglia. La lesione dei vincoli di parentela e la difesa dell’ordine civile nella riflessione italiana del primo Ottocento (Macerata, EUM, 2008) 110. 62 GD Romagnosi, Opere di GD Romagnosi riordinate ed illustrate da Alessandro De Giorgi. Vol VII. Scritti sul diritto penale (Palermo-Naples, Pedone Lauriel e Marghieri, 1874) 285, fn 1. 63 See further, L Garlati, ‘La fine dell’innocenza. L’infanticidio nella disciplina dell’Italia post unitaria’ (2012) 1 Corte d’Assise 17. 64 On honour killing between the nineteenth and twentieth centuries see M Cavina, Nozze di sangue. Storia della violenza coniugale (Roma–Bari, Laterza, 2014) 199 (digital edition). 65 On the juridical relevance of female purity see G Cazzetta, Praesumitur seducta. Onestà e consenso femminile nella cultura giuridica moderna (Milan, Giuffrè, 1999).

Anti-democratic Emotions  289 while other offenders – mere ‘bad’ women – were defined as common criminals and as such were to be punished more severely. For this reason, the honour that pertained to infanticide could operate to allow the woman to be reintegrated into society: the woman who had lost her honour could see it given back only through marriage or, surprisingly, through a ­criminal act cancelling the proof of her lost honour.66 By way of a brief comparison with other penal codes, whereas the Napoleonic Penal Code (1810) punished infanticide with the death penalty, the Code of the Grand Duchy of Tuscany (1853), which was famously inspired by the Enlightenment, provided for a milder treatment, but only if the act was committed by the mother. Not only did this Code punish infanticide as an ad hoc crime, distinct from the crime of murder with which it had been until then joined, but it also included detailed provisions relating to it (Articles 316–21). These assigned different penalties depending on the woman’s state of mind, which was to be interpreted in relation to the different stages of pregnancy and childbirth (for example, the penalty was more severe if the woman decided to commit infanticide ‘before she was surprised by the pain of childbirth’ and milder in the opposite case), the subjective element (whether or not the act was malicious), and whether or not the child survived. By the end of the nineteenth century, with the promulgation of the Zanardelli Code (1889) in unified Italy, the definition of infanticide was very different from the protective and innovative model introduced by the Tuscan Code. The most important change was the existence of a crime only if it was committed, as stated by Article 369, ‘to save the offender’s own honour or that of the offender’s wife, mother, daughter (even if adoptive), or sister’. In other words, all the circumstances encompassing ‘illegitimate offspring’, as provided in the Sardinian Code of 1859, here become indispensable elements of the crime. Infanticide was therefore characterised according to two features: on one hand, the crime was viewed as an attenuated hypothesis of murder rather than a distinct crime; and on the other, the honoris causa, which could lead to a lighter sentence, could be invoked by a number of subjects and not only by the mother, with an expansion of the feeling of honour from maternal to familial. This decision was justified by Minister of Justice Zanardelli, who clarified that the dismay and serious discomfort experienced by a woman who gave birth to an illegitimate child was also transmitted to the closest relatives, thus justifying the ­extension of ‘­dishonour’67 to the rest of the family. Overall therefore, with the Zanardelli Code we witness the identification of honoris causa as the sole motive for infanticide.68

B. Infanticide honoris causa in the Rocco Code After the approval of the Rocco Code in 1930, during the Fascist regime the crime of infanticide honoris causa assumed a new shape when compared with the previous codes. This crime was defined in Article 578 (which was to remain in force until it was repealed by Law 442/1981) and become an autonomous type of offence. Simultaneously, crimes 66 R Selmini, Profili di uno studio storico sull'infanticidio: esame di 31 processi per infanticidio giudicati dalla Corte d’Assise di Bologna dal 1880 al 1913 (Milan, Giuffrè, 1987) 35. 67 G Zanardelli, Relazione a SM il Re del Ministro Guardasigilli per l’approvazione del testo definitivo del Codice Penale (Turin, Utet, 1890) 295. 68 EM Ambrosetti, L’infanticidio e la legge penale (Padua, Cedam, 1992) 25.

290  Emilia Musumeci ­ onoris causa (such as homicide, or injury and abandonment of new-borns) were included h in the 1930 Code, as a sign that honour,69 disengaged from the previous conception of the infanticidal mother, had now expanded to take on a different socio-cultural meaning, untied from the specific references to female sexuality (‘sexual honour and purity’)70 that had prevailed for most of the nineteenth century. According to Article 578, ‘whoever causes the death of a new-born immediately after the birth, or of a foetus during labour, in order to save their own honour or that of a direct relative’ was to be punished by imprisonment for three to 10 years. There were therefore numerous innovations compared with the Zanardelli Code. First, the elimination of any direct reference to the mother and the use of ‘whoever’ instead is evident. The crime no longer had a connotation, as in the past, of a crime committed only by the mother, but by all those who gravitate around her, that is, her relatives. The honour in this case was no longer ‘maternal’ or ‘female’ but ‘domestic’. In addition, as an alternative crime to infanticide, the crime of feticide was introduced in order to prosecute any possible act aimed at suppressing the offspring and/or the fetus. These developments can be read in terms of the political order under which they were introduced. With the advent of the Fascist regime, the previous hierarchy of emotions to be considered by law was totally inverted and reconsidered, with obvious implications for the conceptual representation of the criminal woman and her emotions. Crimes were defined in terms of the protection and supremacy of the state; individual rights were protected only in connection with injury to the public sphere; and so, in other words, there was a ‘publicisation’ of individual interests. For example, sexual freedom was protected only as a reflection of the public life of every citizen. Thus, the crime of rape was not an offence against the person, but against ‘public morality and decency’.71 Moreover, it was certainly significant that the Code included crimes relating to ‘family protection’, which were closely tied to a Fascist model of society and family, with its emphasis on strong leaders and breadwinners, and on submissive and subordinate wives.72 In this context, the honour of infanticidal mothers was also translated from the individual to the collective sphere. Every humanitarian implication of the honoris causa, as in Beccaria’s view, was definitively lost. With the approval in 1930 of the Rocco Code, despite its much-vaunted ‘technical perfection’, criminal law became more than ever a powerful weapon in the hands of the state and the protection of the body was affected by new ambiguities. Under the supposed ‘neutrality’ of the law were in fact hidden the core values of the Fascist regime, as demonstrated not only by a strengthening of penal sanctions and an increase in the number of offences, but also by the structure of the Code itself, which mirrored the hierarchy of the protected legal interests. It is no coincidence that,

69 On honour in Italian criminal law note E Musco, Bene giuridico e tutela dell’onore (Milan, Giuffrè, 1974). 70 G Fiume (ed), Onore e storia nelle società mediterranee (Palermo, La Luna, 1988). 71 The crime of rape was punished as a crime against public morality well beyond the end of the Fascist regime and even had the approval of the Italian Constitution of 1948. Despite the abolition of honour killing in 1981, the crime of sexual violence in Italy became an offence against the person only in 1996. On the long history of gender violence in Italy note S Feci and L Schettini, ‘Storia e uso pubblico della violenza contro le donne’ in S Feci and L Schettini (eds), La violenza contro le donne nella storia. Contesti, linguaggi, politiche del diritto (secoli XV–XXI) (Rome, Viella, 2017) 7–39. 72 Note V De Grazia, How Fascism Ruled Women: Italy, 1922–1945 (Berkeley, CA, University of California Press, 1992); and E Musumeci, ‘The Positivist School of Criminology and Italian Fascist Criminal Law: a Squandered Legacy?’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015).

Anti-democratic Emotions  291 after the Code’s general part, came the crimes against the Personality of the State, against the Public Administration, and against the Administration of Justice, as well as other sections comprising every other crime relating to the state sphere. The Code only reached crimes against the person in the twelfth chapter of book II and, in the thirteenth chapter, crimes against property. This organisation was a clear sign of how the individual was essentially nullified, especially if compared with the big machine of the Fascist state, that had to be worshipped, served and protected in every way. In such a framework the imperative seemed to be not so much to ‘preserve the life’ of the individual, as occurred with the Zanardelli Code, but to preserve the health of the individual only as part of the population and, therefore, of the Italic stock (the concept of stirpe, or race). In this sense the Rocco Code contained a chapter on ‘crimes against the integrity and health of the stock’ (stirpe) including, among others, the crime of abortion (punished in the Zanardelli Code as a crime against the person) and many other new crimes related to the interruption of pregnancy (disciplined in an apparently obsessive way by the Fascist legislator with more than five different kinds of crime)73 and reproduction (including the ‘innovative’ crimes of ‘voluntary sterilisation’ in Article 552 and ‘incitement to practices against procreation’ in Article 553). Of particular interest was the inclusion, in Article 554 in that chapter, of the crime of contagion of venereal disease, such as syphilis and gonorrhoea. Sexual behaviour, considered as a function of population growth, was ultimately to do with the availability of individuals, who had to keep their bodies in perfect health and always be ready to create healthy and strong offspring worthy of the great Fascist state. In that sense, the spread of venereal diseases, previously punished as personal injury, became a crime not against the individual but against the state, while the new ‘plague spreaders’ became culprits who jeopardised the ‘development of the power of the progeny and race’.74 The same context can also be seen to explain the regime’s approach towards prostitution, which increasingly became a matter of ‘state prostitution’ under Fascism. The long-standing practice in Italy, albeit with a brief suspension,75 of a tolerant regulatory approach to prostitution, continued with the advent of Fascism, but became stricter. The authoritarian turn from the legislative point of view occured with two decrees of 192376 and above all with the approval of the Consolidated Public Security Law of 1931. Thanks to this, prostitution could only be practised in authorised places, the so-called ‘closed houses’, and prostitutes were subjected to strict surveillance, in line with the regime’s double moral standards.

C.  Male Violence and Honour Killing: A Long Story If these were the emotions of infanticidal women, even those belonging to the so-called stronger sex were not exempted from falling prey to equally lethal passions. The most 73 Arts 545–50 of the Rocco Code penalised ‘abortion without the consent of the mother’; ‘abortion with the consent of the mother’; ‘abortion caused by the mother herself ’; ‘incitement to have an abortion’; and ‘abortive acts on a woman presumed to be pregnant’. 74 E Gentile, Fascismo di pietra, (Rome–Bari, Laterza, 2007) 222. 75 After the regulation of prostitution was approved by the Cavour Law in 1860, its abolition was declared by the Crispi Law in 1880, and a new regulation was introduced in the Nicotera Law in 1891. See M Gibson, Prostitution and the State in Italy, 1860–1915 (London, Rutgers, 1986). 76 RD 25 March 1923, no 846 and RDL 25 March 1923, no 1207.

292  Emilia Musumeci important was undoubtedly the feeling of male honour, understood as a complex combination of sentiments: unlike the sexual honour of women, which coincided with the obsessive myth about female purity, male honour was a much broader concept. As the wife’s body was considered a husband’s exclusive property, male honour was related with an explosive mix of jealousy and self-esteem. This complex feeling was the fulcrum of the male crime of honour and can be considered the forerunner of contemporary femicide. The idea of a husband’s right, of which his sense of betrayal and loss of honour drive him to murderous revenge, is rooted in a gender-based violence, which was not only well established in, but also tolerated and even encouraged by, the criminal law. It is important to remember that usually penal codes only punished adultery77 by the wife, while adultery by the husband was considered a criminal offence only in the case of ‘concubinage’78 (Articles 336 and 339 Napoleonic Code 1810). Also in this regard, official legal doctrine was based, as it was stated in a criminal law treatise of the time, on the view that ‘fidelity in marriage is artificial in the man, natural for the woman’,79 because of insurmountable biological differences (the masculine ‘dynamic force’ and the female ‘natural frigidity’).80 To the supposed physiological diversity were also added social differences: [T]he husband’s infidelity … unless it turns into shameless concubinage, avoids the penalties of open social disapproval for his wife, who has a lot more constraints, and constitutes … a real theft of those sexual compensations she cannot expect from men other than her husband. It is a misappropriation of her property, of her means of satisfying a physiological-emotional need.81

These values and codes of conduct (written or not) regulating the relationship between man and woman were very common at the end of the nineteenth century, which was the final period of honour killing considered as ‘the last seal of patriarchy’.82 Nevertheless, this sort of crime of honour can be considered the quintessential male crime of passion, with all the implications in terms of feelings and emotions involved in it. Despite expectations, the French Revolution had not produced equal rights between men and women, because once the revolutionary winds of freedom and emancipation had faded, as Simone de Beauvoir acutely observed, ‘the bourgeoisie [clung] to the old values according to which family solidity guarantees private property’.83 This was clearly reflected in the celebrated nineteenth-century codification process84 and in particular, in the Napoleonic Civil Code of 1804. In that Code, despite a formal equality between the spouses, the man was still the undisputed ‘head of

77 This was one of the main gender inequalities implemented by the law as noted by G Gambarotta, L’adulterio e la teorica dei diritti necessari (Turin, Bocca, 1898) 182; and E Pazè, Diseguali per legge. Quando è più forte l’uomo e quando è più forte la donna (Milan, FrancoAngeli, 2013) 32–36. 78 On the history of this crime see F Gazzoni, Dal concubinato alla famiglia di fatto (Milan, Giuffrè, 1983). Note also R Isotton, ‘“Il convitato di pietra”. I delitti di adulterio e di concubinato nella codificazione penale italiana: dalla repressione alla depenalizzazione (1889–1969)’ in R Isotton (ed), Tra autorità e libertà. Saggi di storia delle codificazioni penali (Turin, Giappichelli, 2012). 79 Viazzi (n 36) 169. 80 ibid 168 and 169. 81 ibid 170–71. 82 Cavina, Nozze di sangue (n 64) 199. 83 S de Beauvoir, The Second Sex (New York, Vintage Books, 2011) 11–12. 84 P Grossi, ‘Assolutismo giuridico e proprietà collettive (1990) 19 Quaderni fiorentini per la storia del ­pensiero giuridico moderno 505, has highlighted that the eighteenth- and nineteenth-century codification process was ‘forced’ and ‘unnatural’.

Anti-democratic Emotions  293 the family’, demonstrating the persistence of the residues of pre-­revolutionary familism, especially relating to the dissolution of marriage. In such a milieu, the crime of honour, still understood merely as uxoricide, ie, the killing of a wife by her (actually or presumptively) betrayed husband (but not by other relatives), quickly spread across the nineteenth-century codes like a copious ink stain on a precious cloth. The approach generally adopted was, once again, that elaborated by the Napoleonic Penal Code of 1810, in which Article 324(2) stated, as an exception to the general principle of inexcusability of the killing of a spouse (except in the case of self-defence: Article 324(1)) that ‘murder committed by a husband of his wife, as well as of her accomplice, at the moment when he surprised them in flagrante delicto [of adultery] in the conjugal home is excusable’. Along similar lines was Article 712 of the Penal Code of the United States of the Ionian Islands of 1841, which provided a partial excuse, not only for the crime of murder but also for that of serious bodily injury,85 for the husband who discovered his wife in the act of adultery and/or being raped, and committed the crime ‘in the heat of resentment’. Similarly and including also the father of the adulterous daughter, Article 177 of the Penal Laws promulgated in 1808 in the Kingdom of Naples, provided for a reduced sentence (from three to five years in prison) for the husband who murdered his wife surprised in flagrant adultery, because of the ‘righteous pain’ (giusto  dolore) caused to him.86 By contrast, however, Article 351 of the Penal Code for the States of Parma, Piacenza and Guastalla, as well as Article 604 of the Penal Code of the Kingdom of Piedmont-Sardinia of 1839, referred to both spouses. After the unification of Italy, the latter approach of the Penal Code of the Kingdom of Piedmont-Sardinia of 1859, that is applying the exception to both spouses and parents (Article 561), prevailed in almost all the national territory. Exceptions to this were Tuscany, which continued to apply its own code until 1889,87 and the Penal Code of the NeapolitanSicilian provinces. In the latter code, Article 561 firstly abandoned the term ‘spouse’ (coniuge) for an explicit reference to the husband or parent on the one hand, and wife or daughter on the other, respectively surprised in the act of adultery or being raped. Afterwards, however, an article specifically dealing with the case of the wife who kills her husband, or the accomplice caught red-handed committing adultery, was added to it. This equalisation was merely apparent, as the Commission for Legislative Studies revealed the different ratio of the two norms: the woman was considered as having been forced to kill ‘only because of a feeling of jealousy, while her husband avenged himself due to the domestic honour that was violated’.88 Article 377 of the Zanardelli Code partly maintained the same generic term ‘spouse’, with a partial equality between men and women, because it referred to murder committed not only in the act of adultery, but also in the case of concubinage. However, it also included an important change in the extension of the excuse to more people than just the two spouses, since the extenuating circumstance could also be invoked by the ‘spouse’s ascendants or siblings’ for the crime of homicide and/or bodily injuries committed against the ‘accomplice’s spouse, descendant, sister or both of them’. 85 In contrast the crime of ‘blows’ (percosse) and ‘minor injuries’ (lesioni lievi) was completely unpunished (Art 713, last paragraph). 86 See further S Vinciguerra, ‘Una penalistica italiana al servizio della politica francese’ in S Vinciguerra (ed), Le leggi penali di Giuseppe Bonaparte per il Regno di Napoli (1808) (Padua, Cedam, 1998). 87 See further A Aquarone, L’unificazione legislativa e i codici del 1865 (Milan, Giuffrè, 1960). 88 V Cosentino (ed), Il Codice penale del 20 novembre 1859 con le successive modificazioni per le provincie ­napoletane-siciliane e quelle generali per tutto il Regno (Naples, Sarracino, 1879) 286.

294  Emilia Musumeci

D.  Honour Killing in the 1930 Rocco Penal Code Despite the remote origins of honour killing and its inclusion in the nineteenth-century codes, during the Fascist regime this crime assumed a peculiar shape. While the previous codes had, at least formally, equated the two spouses, the protection of male honour in the Rocco Penal Code was understood in terms of family honour and, above all, it was included in a whole chapter of offences defined as crimes of honour. In the Rocco Code, despite the apparent similarity, the shape of honour killing significantly changed. Article 587, incorporated in the broader category89 of crimes of honour (delitti per causa d’onore)90 in its original formulation, provided that ‘whoever causes the death of a daughter’s or sister’s spouse or lover at the moment in which he discovers an illegitimate carnal relationship and in a state of anger caused by the offence to his or her family honour’ was to be sentenced to a term of between three to seven years in prison; all other homicides received a minimum sentence of 21 years. The clear disproportion of punishment is symptomatic of the benevolence towards honour killing showed by the Fascist legislator. This indulgent attitude is even more significant in the authoritarian legal system of the Rocco Code, in which most of the crimes were harshly sentenced (especially if compared with the codifications of Liberal Italy).91 In contrast with the pre-unification codes, a kind of personal honour was replaced with a familial one: if irresistible force and provocation were focused on an individual passion, now honour was a sort of collective and shared feeling and above all, truly masculine. While female jealousy, a sign of feminine sentimentality to be relegated to her private sphere, was not accepted, that felt by men was, on the contrary, one of the pater familias’s public virtues. For this reason, it can be said that despite preceding legislation in which to some extent honour had played a similarly important role, this was the real birth of male honour killing,92 even though it was inevitably linked to a tradition that was much older than the nineteenth century. Even the ranks of the active and passive subjects of the norm were different. A clear equality between spouses established by the Zanardelli Code in terms of a double reference to adultery and concubinage was replaced by the vague expression of ‘illegitimate carnal relationship’. Similarly, the use of the generic term spouse was only theoretically attributable to husband and wife. In fact, that term was more likely used to refer only to the male individual, as is understandable from reading the Article which, specifying that the ‘culprits’ of adultery at the origin of the honour killing would inevitably be female (not only the wife but also the sister or daughter of the murderer). Moreover, if we consider also the general project of Fascist criminal law and its fundamental values in relation to the

89 I Caraccioli, ‘Causa di onore (voce)’ in Enciclopedia del diritto (Milan, Giuffrè, 1960) VI. 90 Among the delicta honoris causa the 1930 legislator included not only honour killing (Art 587), but also ­abortion (Art 551), infanticide and feticide (Art 578) and abandonment of new-borns (Art 592). 91 Compare P Garfinkel, Criminal Law in Liberal and Fascist Italy (Cambridge, Cambridge University Press, 2016) on common elements of ‘moderate social defence’ in criminal law in the Liberal era and under Fascism. See further F Colao, ‘Caratteri originari e tratti permanenti del processo penale dal codice “moderatamente liberale”, al codice “fascista”, al “primo codice della Repubblica”’ in F Colao, L Lacchè and C Storti (eds), Giustizia penale e politica in Italia tra Otto e Novecento. Modelli ed esperienze tra integrazione e conflitto (Milan, Giuffrè, 2015). 92 On the nature of the honoris causa see further R Pannain, ‘Omicidio (diritto penale) (voce)’ in Novissimo Digesto Italiano (Turin, Utet, 1965) XI, 888; and A Casalinuovo, La causa d’onore nella struttura del reato (Naples, Jovene, 1939) 13.

Anti-democratic Emotions  295 definition of gender roles, where the woman as the ‘angel of the hearth’93 was subjected to a strong and virile husband, it is more plausible to assume that the norm disciplining honour killing, as well as injury for reasons of honour, was in fact applied, with very few exceptions, only to uxoricidal and violent men.

Reinventing Honour If this was the context in which honoris causa crimes were culturally accepted and even encouraged, then regardless of the legal framework of that group of norms, the emotional drive of honour killing and the Fascist connotation of this kind of passion emerge clearly. Beyond the elements of diversity (especially due to the heterogeneity of the contexts and the reference values of each code), while infanticide changed significantly, male honour ­killing maintained some element of continuity. This involved primarily the attempt to control and discipline corporeality and sexuality through a strong intervention of the law into the private sphere,94 with physical infidelity being the common element of all the provisions. Besides the noteworthy and rather old distinction95 between internal honour (the personal idea of value that a person has of himself and which was at stake in the injury offences) and external honour or reputation (defined as the actual feeling of esteem of others towards him, and which was outraged by defamation), male honour was distinguished very much from female honour. As well as being culturally acknowledged by society, being deprived of his own honour for a man meant the same as being completely annihilated. In a legal treatise of the late nineteenth century dedicated to crimes of injury to honour in the Zanardelli Code, the author began by paraphrasing the words of Melchiorre Gioia (1767–1829): ‘a man ­without social esteem is like a tree whose leaves and roots have been removed: no longer being able to extract nutriment from the earth or the air, he drops dead from starvation’.96 Male honour, unlike a woman’s sexual honour, which coincided with the obsessive myth of her purity, was a much broader concept, while being in some way attached to it. The right of exclusivity over the body of his wife, which in earlier times was understood as a real property right, became a morbidly sentimental attachment generated by an explosive mix of jealousy and honour attributed to man. Although women were considered able to feel jealousy, this sentiment was understood as being significantly different from that experienced by men as if, in an ideal classification of emotional states, male jealousy was felt at a greater degree of intensity than the female version. A woman’s jealousy was in fact one of the many defects due to feminine sentimentality, all based in the private sphere, while a man’s

93 On the hierarchy between spouses and its juridical consecration see C Cardia, ‘Diritto e famiglia negli anni ’30–’50’ (1999) 28(2) Quaderni fiorentini per la storia del pensiero giuridico modern 853. On women under Fascism see further De Grazia (n 72). 94 On the contamination between public and private spheres and the politics of control of sexual behaviour from the French Revolution to the beginning of the twentieth century see PV Babini, C Beccalossi and L Riall (eds), ­Italian Sexualities Uncovered, 1789–1914 (Basingstoke, Palgrave Macmillan, 2015). 95 See further A Visconti, Onore, reputazione e diritto penale (Milan, EDUcatt, 2011) 230–31. 96 C Armò, Onore ed ingiuria. Studio giuridico ed appunti al nuovo codice penale (Palermo, Carosio, 1890) 5.

296  Emilia Musumeci j­ealousy, inextricably linked to domestic honour and thus his public sphere, was almost a duty to be performed as pater familias.97 It is not surprising that there was such a difference between female and male honour. Although this distinction was not an absolute novelty of the Fascist regime, even so the 1930 legislator emphasised an element already included in the general values adopted by nineteenth-century Italian society to the point of its ‘Fascistisation’.98 The ‘new’ Fascist kind of honour protected by the Rocco Code was in fact perfectly in line with the values of the ‘New Man’ that the regime aspired to create. This was also emblematic in the fight against and strong repression of homosexuals,99 considered in the regime’s eyes as enemies of this model of Fascist Man, a hyper-virile and aggressive warrior-type male in contraposition to the New Fascist Woman, who was completely subjugated to male supremacy and depicted as serving the political function of producing children100 for the Fascist state. After all, what was to be expected if the main model of male was that of the Duce himself, to the point that a sort of holiness was generated around his body during his life and even after his death?101

Conclusion Two major conclusions emerge from this brief analysis of crimes of honour during Fascism in Italy. First, criminal law shaped by the Rocco Code was not, appearances aside, indifferent to emotions and passions. In addition, it imposed and legally protected ‘Fascist’ emotions and passion, or rather some ‘anti-democratic emotions’, for several reasons. Assuming democratic emotions to include those emotions ‘supposed to unite people regardless of their social and ethnic status’102 in line with the French Declaration of the Rights of Man and Citizen, the emotions imposed by the Fascist regime were undoubtedly ‘anti-­democratic’, being perfectly shaped to the exaltation of authoritarian values thanks to the creation of a ‘Fascist criminal law’.

97 On the history of paternal authority see M Cavina, Il padre spodestato. L’autorità paterna dall’antichità a oggi (Roma–Bari, Laterza, 2007); and A Massironi, ‘The Father’s Right to Kill His Adulterous Daughter in the Late Ius Commune’ in Di Renzo Villata (ed), Family Law and Society in Europe from the Middle Ages to the Contemporary Era (Cham, Springer Switzerland, 2016). 98 On this matter and the related problem of acceptance of the regime see G Albanese and R Pergher (eds), In the Society of Fascists. Acclamation, Acquiescence and Agency in Mussolini’s Italy (New York, Palgrave Macmillan, 2012); P Morgan, Italian Fascism, 1915–1945 (New York, Palgrave Macmillan, 2004); and, specifically on the fascistisation of education, see M Isnenghi, L’educazione dell’italiano, il fascismo e l’organizzazione della cultura (Bologna, Cappelli, 1979). 99 See further L Benadusi, The Enemy of the New Man: Homosexuality in Fascist Italy (Madison, WI, ­University of Wisconsin Press, 2012) originally published as Il nemico dell’uomo nuovo. L’omosessualità nell’esperimento ­totalitario fascista (Milan, Feltrinelli, 2005). 100 On the importance of fatherhood see M Salvante, ‘“Less than a Boot-Rag”: Procreation, Paternity, and the Masculine Ideal in Fascist Italy’ in PD Andersen and S Wendt, Masculinities and the Nation in the Modern World: Between Hegemony and Marginalization (New York, Palgrave Macmillan, 2015). 101 A Vacca, Duce! Tu sei un dio! Mussolini e il suo mito nelle lettere degli italiani (Milan, Baldini & Castoldi, 2013); and S Luzzatto, The Body of Il Duce: Mussolini's Corpse and the Fortunes of Italy (New York, Holt, 2005) originally published as Il corpo del duce. Un cadavere tra immaginazione, storia e memoria (Turin, Einaudi, 1998). 102 U Frevert, Emotions in History – Lost and Found (Budapest, CEU Press, 2013) 196. For the concept of ‘democratic emotions’ see also MC Nussbaum, ‘Equality and Love at the End of The Marriage of Figaro: Forging Democratic Emotions’ in J Deigh (ed), On Emotions. Philosophical Essays (Oxford, Oxford University Press, 2013).

Anti-democratic Emotions  297 As is well known, the values of the regime were very different from those synthesised by the (French revolutionary) motto ‘Liberty, Equality, Fraternity’, which was – at least supposedly – at the basis of the modern idea of democracy. There were for instance criminal policy reasons for seeking to avoid impunity for serious violent crimes and to avert possible ‘weakening’ of the vigorous Fascist state. In that regard, the 1930 legislator intended to meet perceived socio-political needs not only rigorously but also pedagogically: the tendency to get excited easily was seen as a symptom of an unacceptable fragility. Consequently, the state had the duty to encourage citizens to control their impulses and emotions.103 This approach could perhaps be seen as running counter to what Alfredo Rocco had stated during the preparatory work, in which he observed that emotions and passions (even noble ones, such as devotion to the Fatherland) were part of human life.104 However, despite the attempt to avoid the danger of a ‘shameful … kind of passionate and romantic justice’105 as had existed under the Zanardelli Code, taking a closer look at the Rocco Code of 1930 it is apparent that it was not as ‘disinterested’ in emotions and passions as it could appear from a superficial reading of Article 90.106 At the same time though, that Article was intended to limit the ‘dangerous power’ of judges and juries, who were too easily influenced by the prodigious loquacity of a lawyer. For this reason, there are those who have recently interpreted Article 90 as falling into a category of ‘magic formulas’107 or quibbles specifically created to subtract, once and for all, the question of the accused’s criminal responsibility from the dreaded arbitrio judicis.108 Moreover, the ambivalent category of honour, declinable, as we have seen, into its male version (uxoricide) and female version (infanticide), was a strong intrusion of extra-legal elements (or rather, emotional) into penal codes fully dominated by the imperative of ensuring that people controlled their passions. In line with Fascist ­ideology,109 the feeling of honour abandoned the individual sphere and became a domestic and collective feeling. This was the demonstration of how not only the regime’s propaganda but also its criminal law, imposing certain emotions and banning others, contributed to the abandonment of democratic values. Far from being considered mere rhetoric, the creation of a state machine with totalitarian vocations also reflected an attempt to establish a specific juridical culture,110 with its own penal and procedural law,111 in order to found a ‘justice system’ 103 GMP Surace, Il delitto d’impeto. Scenari psicopatologici, criminologici e forensi sul crimine efferato da impulso irresistibile (Soveria Mannelli, Rubbettino, 2005) 151. 104 Ministero della giustizia e degli affari di culto, Verbali delle sedute della Commissione. Libro 1 del Progetto preliminare di un nuovo codice penale, II, 284. 105 C Bucolo, ‘Stati emotivi o passionali’ (1957) 62(1) La Giustizia Penale 435. 106 M Mazzanti, ‘Stati emotivi e passionali (voce)’ in Novissimo Digesto Italiano (Turin, Utet, 1971) XVIII, 216. 107 Fortuna (n 41) 366. 108 On the problematic relationship between judges and politics during the Fascist regime note G Neppi Modona, ‘La magistratura e il fascismo’ in G Quazza (ed), Fascismo e società italiana (Turin, Einaudi, 1973); and A Meniconi, Storia della magistratura italiana (Bologna, il Mulino, 2013) esp 147–52. See also R Cavallo, ch 8 in this collection. 109 On Fascist ideology note S Luzzatto, ‘The Political Culture of Fascist Italy’ (1999) 2 Contemporary European History 322; E Gentile, Fascismo. Storia e interpretazione (Rome–Bari, Laterza, 2002) 78; and S Garau, Fascism and Ideology: Italy, Britain, and Norway (London, Routledge, 2015). 110 On the legal culture of Fascism note A Mazzacane, ‘La cultura giuridica del fascismo: una questione aperta’ in A Mazzacane (ed), Diritto, economia e istituzioni nell’Italia fascista (Baden-Baden, Nomos, 2002); P Cappellini, ‘Il fascismo invisibile. Una ipotesi di esperimento storiografico sui rapporti tra codificazione civile e regime’ (1999) 28(1) Quaderni fiorentini per la storia del pensiero giuridico moderno 175; and I Stolzi, ‘Fascismo e cultura giuridica: persistenze ed evoluzioni della storiografia’ (2015) LXXXVII Rivista di Storia del Diritto Italiano 257–285. 111 On procedural law and Fascism see MN Miletti, ‘La scienza nel codice. Il diritto processuale penale nell’Italia fascista’ in L Garlati (ed), L’inconscio inquisitorio. L’eredità del Codice Rocco nella cultura processualpenalistica

298  Emilia Musumeci that was to be so pervasive as to be reflected even in the architecture of the Palaces of Justice112 built during the Fascist regime: ‘the spiritual revolution is reflected in criminal justice for shaping the “new” morality of the Italians’.113 There are clearly good reasons for rejecting the thesis that Fascist legislation was a mere parenthesis114 due to the numerous elements of continuity115 between the ‘Liberal’ period and the regime.116 However, it is also undeniable that Fascist criminal law had its own specificity, reflecting the universe of principles, values and cultural elements typical of the regime:117 the idea of a strong and repressive state; the exaltation of virility and the hierarchy between the sexes; the myth of military courage and sacrifice for the Fatherland; the cult of physical strength and youthfulness; the phobia for the (internal and external) ‘enemy’; the fight against individualism; the predominance of community and family, and so on. Thanks to law118 the regime penetrated and mobilised the private sphere119 of Italian daily life:120 the dictatorship’s totalitarian aspiration to inculcate values and beliefs; to influence private behaviour and extend power over the domestic domain (further examples include the imposition in 1926 of a bachelor, or celibacy, tax on unmarried men, the aggressive policy aimed at increasing the birth rate and the cult of the woman as mother and wife).121 Notably, the Secretary of the Fascist Party, Giovanni Giurati, began the ‘Fascist Decalogue’ with the following commandment: ‘God, Fatherland, Family. Any other feeling, any other duty must be secondary’.122 In such a system of values, the feeling of honour, at the root of the crimes of honour discussed here, strongly influenced by the cultural, political and juridical changes that took place with the advent of Fascism, could undoubtedly be considered a sort of litmus test for the existence of a real ideological foundation of Fascist criminal law.

i­ taliana (Milan, Giuffrè, 2010); and G Chiodi, ‘“Tornare all’antico”: il codice di procedura penale Rocco tra storia e attualità’ in L Garlati (ed), L’inconscio inquisitorio. L’eredità del Codice Rocco nella cultura processualpenalistica italiana (Milan, Giuffrè, 2010). 112 Note Gentile (n 74); and L Lacchè, ch 1 in this collection. 113 L Lacchè, ‘Tra giustizia e repressione: i volti del regime fascista’ in L Lacchè (ed), Il diritto del Duce. Giustizia e repressione nell’Italia fascista (Rome, Donzelli, 2015) XXXVIII. 114 Note MA Livingston, ‘Criminal Law, Racial Law, Fascist Law: Was the Fascist Era Really a ‘Parenthesis’ for the Italian Legal System?’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015) 97. 115 On the rule of law and Fascism see G Neppi Modona, ‘Principio di legalità e diritto penale fascista’ (2007) 36 Quaderni fiorentini per la storia del pensiero giuridico moderno 983. Note also M Pifferi, ‘Difendere i confini, superare le frontiere. Le “zone grigie” della legalità penale tra Otto e Novecento’ (2007) 36 Quaderni fiorentini per la storia del pensiero giuridico moderno 743. 116 MN Miletti, ‘Giustizia penale e identità nazionale’ (A proposito di Il diritto del Duce. Giustizia e repressione nell’Italia fascista, a cura di Luigi Lacchè, Roma, Donzelli, 2015’ (2016) 45 Quaderni fiorentini per la storia del pensiero giuridico moderno 683, 683–84. 117 F Colao, G Neppi Modona and M Pelissero, ‘Alfredo Rocco e il codice penale fascista’ (2011) 1–2 Democrazia e diritto 175. 118 On the repressive use of criminal law under Fascism note G Neppi Modona and M Pelissero, ‘La politica criminale durante il fascismo’ in L Violante (ed), Storia d’Italia. Annali 12: La criminalità (Turin, Einaudi, 1997) 767. 119 M-S Quine, Population Politics in Twentieth Century Europe: Fascist Dictatorships and Liberal Democracies (London, Routledge, 1996) 40. 120 Note J Arthurs, M Ebner and K Ferris (eds), The Politics of Everyday Life in Fascist Italy. Outside the State? (New York, Palgrave Macmillan, 2017). 121 Compare however M Freddosio, ‘The Fallen Hero. The Myth of Mussolini and Fascist Women in the Italian Social Republic (1943–45)’ (1996) 31 Journal of Contemporary History 99; and A Tarquini, Storia della cultura fascista. Nuova edizione (Bologna, il Mulino, 2016) 158–62. 122 See further C Galeotti, Mussolini ha sempre ragione. I decaloghi del fascismo (Milan, Garzanti, 2000).

14 Criminal Law and the Use of Force: Ideology and State Power in Fascist Italy and England in the Interwar Period STEPHEN SKINNER*

Introduction As an instrument of social control criminal law is both prohibitive and permissive. It is prohibitive in its establishment of offences and penalties, and permissive to the extent that it exempts particular persons or forms of conduct from criminal liability, excuses them from responsibility out of sympathy, or justifies certain actions because they are considered to be inherently right. The influence of ideology, as the set of political and philosophical ideas, values and objectives influencing actors and institutions in a system, can be identified in criminal law in both of these functions, in the formulation, hierarchy and severity of crimes and punishments, as well as in the range and scope of exemptions and defences that the law permits. This chapter focuses on the connections between ideology and the permissive function of criminal law under Fascism in Italy during the interwar period by examining how the 1930 Italian Penal Code exempted the use of defensive or coercive force by state officials from criminal sanction. This is based on the rationale that the criminal law’s treatment of the use of force is especially informative about a system’s ideological foundations, because it indicates when and how that system is prepared not just to tolerate but to authorise conduct of the most serious nature – physical harm or even killing – that would in other circumstances be prohibited, and how its regulatory approach indicates its perception of its own status, role and aims. The chapter examines this area of criminal law on the use of force from a comparative perspective, considering the law under Fascism and academic commentary on its ideological character in relation to English criminal law in the same period, analysing both legal examples in their institutional and socio-political context.1 As I have previously

* I thank Jonathan Dunnage, David Fraser, Lindsay Farmer, Marco Pelissero and Rosemary Auchmuty for their comments on previous versions of this chapter. Any errors are mine alone. 1 See, eg, M Löhnig, ‘Comparative Law and Legal History: A Few Words about Comparative Legal History’ in M Adams and D Heirbaut (eds), The Method and Culture of Comparative Law (Oxford, Hart Publishing, 2014) 114–15.

300  Stephen Skinner discussed elsewhere,2 the chapter compares these two apparently distinct systems in order to ground critical engagement with their specificities, overlaps and differences.3 The chapter concentrates on Article 53 of the 1930 Italian Penal Code, which covers the legitimate use of arms by public officials, a problematic and notorious provision in the long-running debate about the extent of that Code’s Fascist content.4 After outlining that provision’s terms and interpretation, the chapter then considers the most similar provisions in interwar England, namely the common law rules on the use of force in the maintenance of law and order. Although current Italian commentary generally agrees that Article 53 bears the distinctive hallmark of Fascism, the aim here is to revisit and question the bases for that interpretation in historical, doctrinal, theoretical and comparative terms, in order to examine what these two examples of criminal law on the state’s use of force in the context of the interwar period tell us about state power, the layers of ideological meaning apparent in them, and the process of exploring the ideology–law nexus. The chapter argues that this historical comparison brings to light important commonalities in the criminal law on the use of force in these two systems, which are evaluated by reference to Max Weber’s famous sociological definition of the modern state in terms of its means, namely the monopoly of physical force in a determined territory and its legitimation through law.5 The chapter also argues that the comparative analysis underlines and relativises the key distinction between these two systems in the degree of permissible force, which arguably reflects a fundamental ideological difference between their conceptions of state and of state–individual relations. Overall and with regard to this collection’s core theme, the chapter argues that this comparative analysis demonstrates that the relationship between ideology and criminal law is not only political, in the form of ideological claims and objectives in the formulation of law, as well as secondary discourse about the law, but also jurisprudential, in terms of how different legal traditions envisage and structure the conceptual order through which political will can be expressed.

Article 53 of the 1930 Penal Code In his ‘Address to His Majesty the King on the Final Draft of the Penal Code’ in ­October 1930, the first Minister of Justice under Fascism, Alfredo Rocco, outlined his version of the 2 S Skinner, ‘Fascist by Name, Fascist by Nature? The 1930 Italian Penal Code in Academic Commentary, 1928–1946’ in S Skinner (ed), Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015); and S Skinner, ‘Crimes against the State and the Intersection of Fascism and Democracy in the 1920s–30s: Vilification, Seditious Libel and the Limits of Legality’ (2016) 36 Oxford Journal of Legal Studies 482. 3 G Fletcher, ‘Comparative Law as a Subversive Discipline’ (1998) 46 American Journal of Comparative Law 683, 695. 4 I have briefly considered Art 53 in previous work on the Italian Penal Code today: S Skinner, ‘Death in Genoa: The G8 Summit Shooting and the Right to Life’ (2003) 11 European Journal of Crime, Criminal Law and Criminal Justice 233, 243; S Skinner, ‘Giuliani and Gaggio v Italy: the Context of Violence, the Right to Life and Democratic Values’ (2010) 1 European Human Rights Law Review 85, 88, 93; S Skinner, ‘Tainted Law? The Italian Penal Code, Fascism and Democracy’ (2011) 7 International Journal of Law in Context 423, 430–31. 5 M Weber, ‘Politics as a Vocation’ in HH Gerth and C Wright Mills, From Max Weber: Essays in Sociology (London, Routledge, 1991) 78. On the influence of this definition in legal history see J-L Halpérin and P Brunet, ‘Legal History and Legal Theory Shaking Hands: Towards a Gentleman’s Agreement about a Definition of the State’ in M Del Mar and M Lobban (eds), Law in Theory and History: New Essays on a Neglected Dialogue (Oxford, Hart Publishing, 2016) 234–35.

Criminal Law and the Use of Force  301 regime’s ideological claims and aims in the sphere of criminal law.6 Central to these were the pre-eminence of the concept of a strong state, rejection of ‘French enlightenment thinking’ and Kantian philosophy, and thus the relegation of individuals to the status of ‘means to social ends’.7 These key points in Rocco’s expression of the Fascist agenda for criminal law8 echoed his earlier exposition of the regime’s ‘political doctrine’.9 As such, they represent a set of core ‘anti-democratic’ ideological tenets within what was nevertheless a rather fluid theoretical framework, which was itself self-consciously limited by the predominant claim that Fascism was primarily concerned with ‘action and sentiment’.10 As the principal architect of Fascism’s doctrines of law and state, Rocco’s statements are the main guide to what Fascist law was (at least theoretically) concerned with, and the most fundamental of these doctrines was the centrality of the state, as a personified actor whose most important attribute was to be its strength.11 However, despite these ideological claims, the extent to which the Fascist regime imposed a distinctive new order through the law, or rather demonstrated continuity from some more repressive attributes of the preceding Liberal order, has been questioned. Although the so-called ‘ultra-Fascist’ laws of 1926 demonstrated the regime’s efforts to consolidate its hold on power, the new Penal Code of 1930 included elements that were indicative of both continuity and developments specific to the regime’s aims.12 Against that backdrop, ­Article  53 of the 1930 Penal Code (a provision that is still in force in an extended form today)13 appears prima facie to reflect the prevailing ideological order at the time of its introduction, in that it explicitly privileged and facilitated the resort to force by public officials. Even so, it does not have an incontestable ideological foundation identifiable either in explicit Fascist claims at the time of codification or in subsequent doctrinal interpretation. To evaluate Article 53’s ideological dimensions, the chapter outlines its terms and applicability, and then constructs a chronological analysis of its ideological dimensions, drawing on the representation of its rationales in the 1930 Code’s preparatory works, and on pre- and post-Second World War academic commentary. 6 A Rocco, ‘Relazione a sua Maestà il Re del Ministro Guardasigilli (Rocco) Presentata nell’udienza del 19 Ottobre 1930-VIII per l’approvazione del testo definitivo del Codice Penale’ in Ministero della Giustizia e degli Affari di Culto, Lavori Preparatori del Codice Penale e Del Codice di Procedura Penale, Vol VII, Testo del Nuovo Codice Penale con la Relazione a Sua Maestà il Re del Guardasigilli (Rocco) (Rome, Tipografia delle Mantellate, 1930). 7 ibid 11–13, 21. 8 See S Skinner, ‘Violence in Fascist Criminal Law Discourse: War, Repression and Anti-Democracy’ (2013) 26 International Journal for the Semiotics of Law 439. 9 A Rocco, ‘La dottrina politica del Fascismo’ (30 August 1925) in Scritti e discorsi politici di Alfredo Rocco, vol III, La formazione dello stato Fascista (1925–34) (Milan, Giuffrè, 1938); also A Rocco, ‘The Political Doctrine of Fascism’ (1926–27) 11 International Conciliation 393, 401–03. 10 Rocco, ‘The Political Doctrine of Fascism’ (n 9) 394; and KHF Dyson, The State Tradition in Western Europe (Oxford, Martin Robertson, 1980) 220–22. 11 P Ungari, Alfredo Rocco e l’ideologia giuridica del fascismo (Brescia, Morcelliana, 1963); and C Schwarzenberg, Diritto e giustizia nell’italia fascista (Milan, Mursia, 1977). See also T Pires Marques, Crime and the Fascist State, 1850–1940 (Abingdon, Routledge, 2016) 79–81. 12 G Neppi Modona and M Pelissero, ‘La politica criminale durante il fascismo’ in L Violante (ed), Storia d’Italia, Annali 12: La criminalità (Turin, Einaudi, 1997); M Sbriccoli, ‘Caratteri originari e tratti permanenti del sistema penale italiano (1860–1990)’ in L Violante with L Minervini (eds), Storia d’Italia, Annali 14: Legge diritto giustizia (Turin, Einaudi, 1998); AL Klinkhammer, ‘Was there a Fascist Revolution? The Function of Penal Law in Fascist Italy and Nazi Germany’ (2010) 15 Journal of Modern Italian Studies 390; P Garfinkel, Criminal Law in Liberal and Fascist Italy (Cambridge, Cambridge University Press, 2016) 389–456. See also chs 5 and 12 in this volume. 13 Skinner, ‘Tainted Law?’ (n 4) 430–31. Art 53 was amended by Art 14 of public order law no 152 of 22 May 1975, which extended the grounds for using force to include various violent crimes.

302  Stephen Skinner

A.  Article 53: Terms and Applicability Article 53 (as codified in 1930) stated:14 Without prejudice to the provisions contained in the two preceding articles, a public official is exempt from liability if, in order to fulfil an official duty, he uses or orders the use of weapons or another means of physical coercion, when he is constrained to do so by the necessity of repelling a violent act or overcoming resistance to Authority. The same provision applies to any person who, when legally requested to do so by the public official, assists him. Legislation determines the other cases in which it is authorised to use weapons or another means of physical coercion.15

Article 53 thus provided a special exemption from criminal liability in addition to Article 51, which provided for the defence of ‘Exercise of a right or fulfilment of a duty’ (an exculpatory provision covering conduct in accordance with a legal right or duty imposed by law or a legitimate order from a public authority) and Article 52, which made provision for ‘legitimate defence’ (necessary and proportionate action by a person in order to defend one of his or another’s legal rights).16 The relationship between Article 53 and the preceding provisions is not entirely clear though, and while some commentators consider that ­Article 53 could apply only if Articles 51 and 52 did not, others have interpreted Article 53 to be autonomous and a distinct exemption.17 More significantly, the broad allowance for the use of force by public officials in Article 53 depended on procedural steps determined by extrinsic political factors. According to Article 16 of the contemporaneous Penal Procedure Code, also introduced under the Fascist regime, any prosecution of public officials for using weapons was subject to authorisation by the Minister of Justice himself.18 Consequently, the question whether or not such a case would even arise, and thus any possible need to rely on Article 53, was ab initio a matter of political discretion.19 The principal aspects of this Article for present purposes though concern its potential applicability, involving the core concept of ‘public official’, and the coercive means permitted. The first of these aspects has been the object of extensive study but, while exhaustive engagement with it falls beyond the limits of this chapter, some key points need to be noted here because they indicate the essentially statist predisposition of Italian law and the 14 All translations in this chapter are the author’s. 15 Other legislation on the use of force was dependent on Art 53 or covered circumstances beyond its terms. For example, the public security law (Regio Decreto 18 June 1931, no 778, Art 24) authorised the use of force to break up public meetings or assemblies if orders to disperse were ignored, but such force could only include weapons if within the scope of Art 53. Other situations beyond Art 53’s scope were covered by specific laws such as the prison regulations (Regio Decreto 18 June 1931, no 787, Art 181), which allowed soldiers and prison guards to use weapons when necessary to prevent the escape of detainees, and other provisions in the public security law (Regio Decreto 18 June 1931, no 778, Art 158) and the Guardia di Finanza regulation (Regio Decreto 6 November 1930, no 1643, Art 93) authorised the use of weapons to prevent unlawful border crossings. See further P Di Vico, ‘Dell’eccesso nell’uso legittimo delle armi’ (1933) 4 Rivista Penale 882, 905–07; and L Stein, ‘Uso legittimo delle armi (Articolo 53 Codice Penale) – Le Autorizzazioni Legali’ (1936) 2 Rivista Penale 1290, 1307–20. 16 Di Vico (n 15) 886 stated that it would be discriminatory if the general defensive provision in Art 52 did not apply to ordinary citizens and public officials alike. 17 Skinner, ‘Tainted Law?’ (n 4) 430. 18 Di Vico (n 15) 907. 19 M Ploscowe, ‘Purging Italian Criminal Justice of Fascism’ (1945) 45 Columbia Law Review 240, 246.

Criminal Law and the Use of Force  303 crucial ideological substructure on which the 1930 Code was grounded.20 Recognition of a distinct status for those performing a public duty connected with the state had been a long-standing feature of Italian law, as part of its civil law tradition ultimately traceable to the influence of French jurisprudential and public law thought on the construction of legal categories. On that basis, the concept of public official was already covered in pre-Fascist penal law, under Article 207 of the Zanardelli Penal Code of 1889, unified Italy’s first national penal code, but this provision was deemed to be problematic because it was at the same time conceptually limited and over-specific in its enumeration of subjects.21 Consequently, the concept was redefined in Article 357 of the 1930 Penal Code to cover ‘employees of the state or another public body who exercise, permanently or temporarily, a public function, be it legislative, administrative or judicial’.22 That provision also included other people performing such a function voluntarily or by obligation, and Article 53 specifically extended its terms to include persons requested to assist a public official.23 The concept of ‘public function’ that was central to the concept of public official was interpreted to mean the carrying out of a duty in order to support the pre-eminence of, and in subservience to, the state and its specific needs. The term ‘public official’ excluded those merely carrying out a ‘public service’ (Article 358 of the Penal Code),24 which was interpreted to mean other sorts of duty or activity supporting the interests of society generally, as distinct from the state.25 The shift in Article 357 to an objective approach based on the performance of a public function was deemed to be a welcome clarification of the law.26 At the same time, this shift was also interpreted as reflecting the ‘pseudo-dogmatic’ approach of Fascist politico-legal ideology to the importance and unifying (or totalising) scope of state activities.27 Indeed, a summary of the concept of public official at the time related it closely to the ‘sovereignty and supremacy’ of the state over subordinate society, and ‘public function’ to the expression of the state’s will, which was deemed to be distinctive due to its attributes of command and coercion.28 In that sense, Article 53 made a special allowance for public officials and those assisting them in exercising a public function,29 by providing additional support for the performance of activities connected with the (Fascist) state’s coercive authority. However, at the same time, it can also be seen as merely clarifying the Zanardelli Code’s approach to both public officials and law enforcement activity, based on a conceptual order that was already inherent 20 eg, S del Corso, ‘Pubblica Funzione e Pubblico Servizio di Fronte alla Trasformazione dello Stato: Profili ­Penalistici’ (1989) 32 Rivista Italiana di Diritto e Procedura Penale 1036, 1037. 21 ibid 1040–41. 22 See also Schwarzenberg (n 11) 190. 23 Di Vico (n 15) 892 notes that this is also fair because Art 652 Penal Code established a general obligation to assist in suppressing disorder and crime. 24 E Altavilla, ‘Uso legittimo delle armi’ in M d’Amelio and A Azara, Nuovo Digesto Italiano, vol 12 (Turin, UTET, 1940) 768; criticised by Di Vico (n 15) 892–93. 25 E Altavilla, ‘Pubblico Ufficiale’ in M D’Amelio and A Azara, Nuovo Digesto Italiano, vol 10 (Turin, UTET, 1939) 997–98. 26 Del Corso (n 20) 1041. 27 F Tagliarini, Il concetto di pubblica amministrazione (Milan, Giuffrè, 1973) 3, cited in Del Corso (n 20) 1037. 28 Altavilla, ‘Pubblico Ufficiale’ (n 25) 993, 996; also A Rocco in Ministero della Giustizia e degli Affari di Culto, Lavori preparatori del codice penale e del codice di procedura penale, Vol IV, Parte 3 (Rome, Tipografia delle ­Mantellate, 1928) 76. 29 L Stein, ‘Uso legittimo delle armi (Articolo 53 Codice Penale) – Considerazioni generali’ (1936) 2 Rivista Penale 697, 710–15.

304  Stephen Skinner not only in the preceding Code, but also more generally in the civil law approach to public (state) activities. According to the contemporaneous commentator, Pietro Di Vico, ‘public official’ in the context of Article 53 had to be understood in terms of that provision’s purpose, and so meant those representing and exercising ‘public force’ who were permitted to use weapons in so doing. This sense of ‘public official’ in relation to the use of force encompassed numerous institutions, including all those classified as forces of ‘public safety’ (pubblica sicurezza) and others who could support them in certain functions.30 The main ‘public safety’ forces included the national police; the militarised police (the carabinieri); and various specialised police forces, including primarily the finance police (Guardia di finanza) and prison guards (Guardia carceraria), but also extending to other units such as forest guards (Guardia forestale). In addition there was the Fascist voluntary militia for national security (MVSN, or milizia volontaria per la sicurezza nazionale);31 various other militias with special duties,32 and the regular armed forces, either acting in support of the ‘public safety’ forces when ordered to do so for public order purposes, or due to a distinct legal duty incumbent on members of the armed forces to suppress any disorder or apprehend anyone committing an offence in their presence.33 In terms of the actual use of force, a key study has indicated that both the police and carabinieri fostered a culture of firmness in their ­relations with the public, preferring robust law enforcement to good public relations.34 Thus, ­Article  53 applied to a wide range of public officials in a context of policing that tended towards the forceful. The second aspect of interpretation of Article 53 addressed here is that it covered the use of weapons or other coercive means subject to two conditions, namely that such use was ‘in order to fulfil an official duty’ and that the official (or citizen called on to assist him) was ‘constrained’ to do so by the ‘necessity of repelling a violent act or overcoming resistance to Authority’.35 While the first condition was similar to the preceding provision in Article 51, Article 53 allowed a specific extension to the context covered by the second condition by including resistance to authority.36 ‘A violent act’ was interpreted to mean any sort of physical force (or threats indicating its imminence) used against the public official to make him breach, perform or not perform an official duty; ‘resistance’ was interpreted to mean any

30 Di Vico (n 15) 890–92. Compare Stein, ‘Uso legittimo delle armi (Articolo 53 Codice Penale) – Considerazioni generali’ (n 29) 714–18. 31 J Dunnage, ‘Continuity in Policing Politics in Italy, 1920–1960’ in M Mazower, The Policing of Politics in the Twentieth Century (Providence, RI, Berghahn Books, 1997) 69. 32 Stein, ‘Uso legittimo delle armi (Articolo 53 Codice Penale) – Considerazioni generali’ (n 29) 715–16. CR Browning, review of J Dunnage, Mussolini’s Policemen (2013) 2 Fascism 271, 272 notes that police forces were reduced in size by the Fascist regime and their numbers supplemented by the Fascist militias. The Fascist regime also set up new political and secret police forces, the ‘Polpol’ and OVRA, although these are not mentioned by commentators on Art 53: see generally M Canali, ‘Crime and Repression’ in RJB Bosworth, The Oxford Handbook of Fascism (Oxford, Oxford University Press, 2009) 221; Schwarzenberg (n 11) 51; and J Dunnage, Mussolini’s Policemen (Manchester, Manchester University Press, 2012) 81. 33 Di Vico (n 15) 891–92. 34 Dunnage, Mussolini’s Policemen (n 32) 37–77; Dunnage, ‘Continuity in Policing Politics in Italy, 1920–1960’ (n 31) 61–62. 35 See generally C Saltelli and E Romano-Di Falco, Commento Teorico-Pratico del Nuovo Codice Penale, vol I – Parte prima (Turin, UTET, 1931-IX) 322–23. Romano-Di Falco had been a member of the drafting committee for the new Penal Code: Schwarzenberg (n 11) 185. 36 Di Vico (n 15) 893–94.

Criminal Law and the Use of Force  305 act intended to avoid or delay compliance with an official order; and both had to be current at the time of the public official’s response.37 The elements of constraint and necessity were interpreted to indicate that no means other than using weapons or other coercive force were possible in such circumstances, although whether the weapons or other means of coercion used had to be those officially provided was debated.38 Significantly, the terms of Article 53 did not explicitly include a requirement of proportionality in the degree of force that a public official might be constrained to use, whereas Article 52 on legitimate defence and Article 54 on the defence of necessity39 both required it. Although the potential vagueness of the term ‘resistance’ had been criticised during the drafting process, it remained in the final version, as did the absence of a proportionality requirement. In the discussion of the draft code, for example, Counsellor Marongiu of the Court of Cassation accepted the clause allowing the use of weapons ‘to repel a violent act’ but was critical of the term ‘resistance to Authority’, arguing that if violent it would be included in the former provision, but if ‘passive’ the use of weapons in response ‘would be an unjustifiable cruelty, which would cause grave offence to the public conscience’40 – in fact, the Court of Cassation subsequently held that Article 53 could not apply to mere passive disobedience or evading arrest.41 Similarly, whereas the absence of a proportionality requirement had also been criticised at the drafting stage,42 the test in Article 53 was said to include proportionality in that the existence of suitable and milder alternative means for dealing with the violence or resistance in question would defeat the purported necessity of a resort to weapons, and a culpably excessive use of force could potentially give rise to a ­separate form of liability.43 Even so, the terms of Article 53 as codified in 1930 did not impose an explicit limit on the use of arms.

37 ibid 895–97; compare Stein, ‘Uso legittimo delle armi (Articolo 53 Codice Penale) – Le Autorizzazioni Legali’ (n 15) 1291–1305. 38 Di Vico (n 15) 899; and Stein, ‘Uso legittimo delle armi (Articolo 53 Codice Penale) – Considerazioni generali’ (n 29) 720–21. See also Stein, ‘Uso legittimo delle armi (Articolo 53 Codice Penale) – Le Autorizzazioni Legali’ (n 15) 1296–97, who argues for the need to leave public officials a margin of discretion. 39 Art 54 allowed necessary and proportionate action to save oneself or another from immediate danger. 40 Ministero della Giustizia e degli Affari di Culto, Lavori Preparatori del Codice Penale e del Codice di Procedura Penale, Volume III Osservazioni e Proposte sul Progetto Preliminare di un Nuovo Codice Penale, Parte 1 (Rome, ­Tipografia delle Mantellate, 1928) 412. Marongiu was a noted pro-Fascist judge: see ch 8 in this volume. The potentially wide scope of the ‘resistance’ clause was also of concern to some of the lawyers and prosecutors commenting on the draft: see ibid 414–15. 41 F Ricca, ‘Alcune osservazioni sull’art 53 del cod Pen’ (1933) 1 Scuola Positiva 320, 321. However, Di Vico, (n 15) 896–97 distinguished between mere disobedience and more serious forms of ‘passive resistance’, such as when members of an assembly refuse to disperse when ordered to do so, in which situation specific laws allowed public officials to use arms: see above (n 15). 42 Counsellor Serena Monghini of the Rome Court of Appeal had called for the addition of a requirement of proportionality in the use of force, and Professor Vanini of the University of Siena had thought the new provision redundant given the scope of legitimate defence: Ministero della Giustizia, Lavori Preparatori del Codice Penale, Volume III (n 40) 413–14. 43 Saltelli and Romano-Di Falco (n 35) 323; Ricca (n 41) 321; Stein, ‘Uso legittimo delle armi (Articolo 53 Codice Penale) – Le Autorizzazioni Legali’ (n 15) 1305–07. According to Art 55 on ‘culpable excess’, if in a situation covered by Arts 51–54 a person exceeded the legal limits of those provisions due to negligence, imprudence or inexperience (as covered by Art 43), the conduct could be punished if it fell within the definition of a crime involving one of those forms of liability. A resort to unauthorised weapons or other means, or a use of authorised weapons that was more than necessary for dealing with the violence or resistance, could possibly be culpably ­excessive. See s­ pecifically Di Vico (n 15) esp 897–904.

306  Stephen Skinner

B.  Article 53: Rationales and Interpretations In ideological terms, Article 53 appears to be a paradigmatically Fascist element of the Penal Code. It had an overtly authoritarian tone, making a special exception for the prima facie unlimited use of force by agents of the state for purposes of law enforcement and overcoming resistance. As such, it could be seen to be a clear example of how the Fascist regime incorporated its violence within the law, an analysis made of the 1926 so-called ‘ultra-Fascist laws’ that could arguably be extended to this apparent facilitation of repressive force through criminal law.44 With its focus on public officials and its restrictive procedural pre-requisite, the provision appeared to favour forces supportive of the regime, including not only the police, carabinieri and army, with which the regime enjoyed close relations,45 but also the newer Fascist forces mentioned above. Moreover, by including ordinary civilians acting in support of public officials, it could also be seen to extend its exemption to any good (Fascist) citizen acting to uphold the law and the state’s authority. As such, the significance of Article 53 arguably involved both the potential application of its terms to concrete situations and their symbolic effect, indicating how the regime’s new order was not only supported by a new penal code, involving more repressive measures and harsher punishments than its predecessor, but also a greater willingness to enforce that order and absorb members of Fascist society into the total Fascist state’s law enforcement mechanisms. However, despite such appearances, Article 53 does not have a clear ideological root and an analysis of contemporaneous and subsequent commentary shows that its ideological dimension has been variously normalised, in terms of universality or the law’s technical neutrality, and problematised, in terms of the law’s ideological aspects as identified in systemic context. To begin with, the provision’s drafting was not explicitly linked with a Fascist rationale. According to the preparatory works for the Penal Code, the provision which became Article 53 was introduced in order to remove interpretative doubts relating to Article 49 of the preceding Zanardelli Penal Code.46 Article 49 had lumped together three different exculpatory measures, namely legitimate defence, necessity and fulfilment of a duty (which would become separate articles in the Rocco Penal Code, specifically Articles 51, 52 and 54) and did not distinguish between measures applicable to ordinary citizens and agents of the state. The generality of Article 49 led to significant uncertainty in interpreting the law, particularly in the case of public officials who used force. The commentary on the final draft of the 1930 Penal Code simply noted the need for clarification, and explained that the wording of the draft for Article 53 covered both defensive action (where someone covered by the provision might protect himself by repelling a violent act) and offensive action (where force might be used to suppress resistance), because both involved a public 44 Compare Schwarzenberg (n 11) 52. 45 Both the police and carabinieri were generally close to and compliant with the Fascist regime: see Dunnage, ‘Continuity in Policing Politics in Italy, 1920–1960’ (n 31) 76–77; and Dunnage, Mussolini’s Policemen (n 32). The regime considered the armed forces as a core attribute of the state and a crucial representation of Fascist strength: eg, G Rochat, ‘Mussolini e le Forze Armate’ in A Aquarone and M Vernazza, Il Regime Fascista (Bologna, il Mulino, 1974). 46 Ministero della Giustizia e degli Affari di Culto, Lavori Preparatori del Codice Penale e del Codice di Procedura Penale, Volume V Progetto Definitivo di un Nuovo Codice Penale con la Relazione del Guardasigilli On. Alfredo Rocco (Roma, Tipografia delle Mantellate, 1929 – Anno VII) para 67, 96–97.

Criminal Law and the Use of Force  307 official having to overcome obstacles to the performance of his public function.47 Although the latter was – according to the official rationale – the major objective in the draft, and the provision’s effect would be to support repressive action in some circumstances, the commentary did not link it overtly with Fascist ideology. Yet, in so doing, by separating state functions and giving them a distinct legal exemption, the focus on state authority was made clear by implication. In the preceding consultation process, the draft had elicited mixed responses from academic and judicial commentators, including observations about its rationale and apparently Fascist orientation. For example, Professor Delitala of the Catholic University of Milan observed that permitting the resort to weapons in circumstances not covered by other provisions, especially legitimate defence, was justifiable as it addressed ‘a social interest of the greatest value’, apparently meaning the preservation of public order in extreme circumstances in which the absence of a requirement of proportionality would not be inappropriate.48 Of particular note with regard to the provision’s ideological orientation, Advocate General Caruso of the Potenza Court of Appeal also focused on the new provision’s justification of overcoming ‘resistance to Authority’, which he identified as being completely opposed to the previous Code’s ‘liberal mentality’ that ‘devalued the authority of the state and its functionaries’. Instead, although whether positively or negatively is unclear, he noted that the draft provision was ‘purely fascist’ in character and a direct emanation of the ‘fundamental principles’ underpinning the new Code.49 However, out of 10 comments on the draft provision this was the only one that explicitly connected it with the regime. This ambivalence was also apparent in academic commentary on Article 53 in the interwar and post-war periods. Commentary on Article 53 during the Fascist period was varied in its treatment of the provision’s rationales. For example, the analysis of Article 53 by Saltelli and Romano-Di Falco in their general commentary on the Penal Code began by outlining the foundational claim that the state’s expression of its will, within the limits of the law, must be obeyed.50 Resistance to the state, they explained, can be overcome either by classifying such acts as crimes or by resorting to coercion in order to ‘remove directly an obstacle blocking the realisation of the state’s will’.51 In their view Article 53 had been introduced to support that objective, but even though it was in line with Rocco’s belief in the strong state as the central force in society, these authors did not explicitly link the provision with Fascist ideology. Similarly, in his commentary Di Vico began by noting the state’s core powers of command and coercion, as well as its duty to achieve a balance in the use of force, by establishing both when it could be used and when acceptable limits would be exceeded.52 Taking a favourable view on the technical balance achieved in the new Penal Code in Article 53, Di Vico did not refer specifically to an ideological connection with the regime.53 With these commentators therefore, Article 53 was not represented explicitly as a



47 ibid. 48 ibid

413. See also Saltelli and Romano-Di Falco (n 35) 323. della Giustizia, Lavori Preparatori del Codice Penale, Volume V (n 46) 413. 50 Saltelli and Romano-Di Falco (n 35) 45. 51 ibid 320–21. 52 Di Vico (n 15) 882. 53 ibid 884. 49 Ministero

308  Stephen Skinner product of a Fascist legal project, but it was nevertheless explained by each of them in a way based on acceptance, even apparent approval, of the basic importance of state power in maintaining order. However, for Leonhard Stein (a retired public prosecutor from Hamburg) in his analysis published in 1936,54 Article 53 represented an essential state power which was directly related to the Fascist regime.55 Starting with an outline of the modern state and its powers, Stein emphasised not only the essential nature of coercive force in upholding the state’s will, therefore ensuring its operation and very existence, but also the need to try to balance the protection of state interests with those of citizens.56 In a brief historical overview of state powers of command and coercion, Stein noted – echoing Rocco – the influence of the French Revolution and the subsequent pre-eminence of individual protection over state needs, particularly during the pre-Fascist ‘democratico-liberal’ period.57 This period, he argued, saw frequent disorder to which the state was unable to respond due to inadequate legal provisions on the use of arms.58 Consequently, Stein noted: Fascism, when it came to power, could not allow this situation to continue, as it had often in times past led to a real weakness, if not impotence, of the State. As befitting the ideas of an authoritarian government endowed with the necessary powers to remove all obstacles to State will on the one hand – and on the other of the ‘rule of law’ with all its guarantees for individual rights – the Fascist Regime was bound to find a solution to the problem that took account of both of these points of view.59

Stein’s observation provides an informative interpretation of the origins of Article 53 that goes beyond Rocco’s own commentary on the draft code and encapsulates both aspects of the Fascist state in politico-legal terms, namely the authoritarian character of the strong state and a purported adherence to the rule of law.60 However, the Fascist concept of the rule of law was not based on the ideas of grounding and limiting state power, but rather on the aims of achieving legal certainty in the expression of state interests and aims, and of using law as an instrument for the effective exercise of political power and social control.61 By explaining that the point of Article 53 was to determine the legal parameters for the use of arms by public officials, not to limit state power and avoid governmental tyranny, but rather to ‘repel the danger of a tyranny of subversive elements against the State’ and establish 54 Stein, ‘Uso legittimo delle armi (Articolo 53 Codice Penale) – Considerazioni generali’ (n 29) 697–701. 55 T Delogu, ‘L’Uso legittimo delle armi o di altro mezzo di coazione fisica’ (1972) 1 Archivio penale 166, 184 explains the perspective of his ‘old friend’ Stein: ‘ex Staatsanwalt exiled from Nazi Germany because he was Jewish, but still the recipient of an Iron Cross from the First World War and indelibly steeped in Prussian authoritarianism even if constrained to take refuge in Italy in the shelter of Arturo Rocco’s paternal shadow; and, moreover, his discourse was written in a political climate very different from today’s’. Delogu’s position is discussed below. 56 Stein, ‘Uso legittimo delle armi (Articolo 53 Codice Penale) – Considerazioni generali’ (n 29) 699–701. 57 ibid 704. 58 ibid 704–05. 59 ibid 706. See also Stein, ‘Uso legittimo delle armi (Articolo 53 Codice Penale) – Le Autorizzazioni Legali’ (n 15) 1296–97 on the need for discretion and 1307 on the view that the state should never tolerate an obstruction to its will. 60 MA Cattaneo, ‘Il Codice Rocco e l’Eredità Illuministico-Liberale’ (1981) 7(1) La Questione Criminale 99; G Neppi Modona, ‘Diritto e giustizia penale nel periodo fascista’ in L Lacchè, C Latini, P Marchetti and M Meccarelli (eds), Penale Giustizia Potere. Metodi, Ricerche, Storiografiche. Per ricordare Mario Sbriccoli (­Macerata, Edizioni Università di Macerata, 2007) 354–55. 61 Note also F Bricola, ‘Teoria generale del reato’ in A Azara and E Eula (eds), Novissimo Digesto Italiano, vol XIX (Turin, UTET, 1979) 32–33.

Criminal Law and the Use of Force  309 the scope of the authorities’ necessarily broad discretionary power in this regard,62 Stein ­highlighted the Fascist conception of ‘rule of law’ as ‘rule by law’. Similarly, in the Nuovo Digesto Italiano in 1940, the expert commentator on Article 53, Enrico Altavilla, like Stein and perhaps unsurprisingly given the official nature of the publication, did not hesitate to link the provision with the Fascist regime. After noting the uncertainties about the use of arms by public officials under the preceding criminal law, he declared in the second paragraph of his commentary that ‘The fascist legislator, with the intention of reinforcing authority, and eliminating every doubt about acting in circumstances in which a strong response is required, decided to create an appropriate norm’.63 He subsequently noted that through Article 53, ‘the legislator, in general and specific form, decided to affirm the right of representatives of authority to use coercion to uphold the law’.64 Again, the explanation of Article 53 was explicitly related to Fascism’s concern with maintaining state authority, enforcing the law and ensuring that its officials could act accordingly. In the post-war period the question of the connection between Article 53 – as well as the Rocco Code generally – and the ideology of Fascism became the object of disagreement among scholars adopting conflicting political and ‘technical-legal’ perspectives on the Penal Code and its ideological and normative content.65 This disagreement was partly about the historical genesis and rationale of Article 53 under Fascism, and partly about that provision’s significance and meaning in the new democratic order. Some post-war commentators ignored or denied political influence on Article 53’s formulation, preferring to interpret it as a normal aspect of state power.66 In contrast, others considered Fascism to be the principal influence on that provision.67 The essence of this debate and doctrinal 62 Stein, ‘Uso legittimo delle armi (Articolo 53 Codice Penale) – Considerazioni generali’ (n 29) 710. 63 Altavilla, ‘Uso legittimo delle armi’ (n 24) 768. 64 ibid 768. 65 Note especially T Delogu, ‘L’elemento politico nel codice penale’ (1945) 1 Archivio penale 161; G Neppi Modona, ‘Tecnicismo e scelte politiche nella riforma del codice penale’ (1977) 17 Democrazia e diritto 664; P Piasenza, ‘Tecnicismo giuridico e continuità dello Stato: il dibattito sulla riforma del codice penale e della legge di pubblica sicurezza’ (1979) 10(3) Politica del diritto 261; M Sbriccoli, ‘Le mani nella pasta e gli occhi al cielo: La penalistica italiana negli anni del fascismo’ (1999) 28 Quaderni fiorentini per la storia del pensiero giuridico moderno 817. 66 eg, F Chiarotti, ‘Appunti sull’uso delle armi per impedire l’evasione’ (1949) 1 Archivio penale 115; A Grieco, ‘Armi (uso legittimo delle)’ in G Azzariti, E Battaglini and F Santoro-Passarelli (eds), Enciclopedia Forense (Milan, Vallardi, 1958); M Iazzetti, ‘Uso delle armi per fatti commessi in servizio di polizia giudiziaria o di pubblica sicurezza e per il mantenimento dell’ordine pubblico’ (1962) Rivista di polizia 113; A Cadoni, ‘Interpretazione ed applicazione dell’Art 53 del Codice Penale’ (1970) Rivista di polizia 129, 130–31; L Alibrandi, L’Uso Legittimo delle Armi (Milan, Giuffrè, 1979) 11–14; F Ardizzone, ‘Uso legittimo delle armi’ in F Santoro-Passarelli (ed), ­Enciclopedia del Diritto, vol XLV (Milan, Giuffrè, 1992) 976; F Lauro, L’Uso Legittimo delle Armi e degli altri Mezzi di Coazione Fisica nell’Ordinamento Italiano, 5th edn (Rome, Laurus Robuffo, 1999); G Amato, ‘Uso legittimo delle armi: la posizione dell’operatore dei servizi di sicurezza, tra la disciplina commune e quella speciale’ (2014) 3 Archivio penale 1. 67 eg, S Camaioni, ‘Rilievi sull’uso legittimo delle armi’ (1985) Archivio penale 113, 113–14; G Fiandaca and E Musco, Diritto Penale – Parte Generale (Bologna, Zanichelli, 1995) 253–54; E Dolcini and G Marinucci, Codice Penale Commentato – Parte Generale (Milan, IPSOA, 1999) 495; A Crespi, G Forti and G Zuccalà, Commentario Breve al Codice Penale, 5th edn (Padua, Cedam, 2008) 205; G Fiandaca and G Leineri, comment on Article 53 Penal Code in G Forti, S Seminara and G Zuccalà (eds), Commentario breve al Codice Penale (Padua, CEDAM, 2017) 233. V Musacchio, L’Uso Legittimo delle Armi (Milan, Giuffrè, 2006) 5–6, appears to reproduce the same points as Alibrandi (n 66), but with a negative changed to a positive, for which the reasons are unclear. On Art 53’s origins and the ‘aura of suspicion’ surounding it in the post-war democratic era note G Ripamonti, comment on Article 53 Penal Code in E Dolcini and GL Gatta (eds), G Marinucci and E Dolcini, Codice Penale Commentato, vol I (Milan, IPSOA, 2015) 960, 961.

310  Stephen Skinner polarisation was primarily evident in two commentaries on the legitimate use of arms from the beginning of the 1970s, the period in which critical reflection on the Rocco Code gained strength.68 The first of these commentaries, by Paolo Pisa (then an assistant professor at the University of Genoa), questioned the extent of ideological influences on Article 53 at the time of its introduction and sought to challenge the neutral rationale that it was designed to clarify and rectify inadequacies in the preceding Penal Code,69 as given by Rocco himself (noted above). Alluding to an existing authoritarian tendency in the control of public order in the Liberal, pre-Fascist period, Pisa argued that the introduction of Article 53 was nevertheless based on a desire to do more than clarify the law as it was under the Zanardelli Code, and was inherently linked with a political rejection of the Liberal order and an effort to strengthen the state under Fascism.70 The special provision on the use of weapons by public officials in Article 53 was part of the same design, he argued, that led to the stiffening of penalties for offences against public officials and the abrogation of the pre-existing exculpatory measure that covered reaction to arbitrary acts by such officials.71 The overarching aim in Article 53 was to extend state power, limit the scope for judicial intervention in subjecting the use of force to scrutiny, and prioritise efficiency in the exercise of public powers over the protection of citizens.72 Ultimately, he argued, due to its ideological foundations Article 53 was not appropriate in the penal code of a democracy and ought to be replaced by the legislature rather than merely reinterpreted by the courts to include a requirement of proportionality.73 The response to Pisa’s article by Tullio Delogu (then a professor at the University of Rome and an influential figure in Italian criminal law) was sharply critical,74 and largely echoed Delogu’s insistence on the technical-legal and apolitical potential of the Penal Code published at the end of the war.75 In essence, Delogu rejected Pisa’s interpretation of ­Article 53 as being inherently political and thus the idea that it was a problem in the ­democratic era. Denying that that provision’s meaning was shaped by any purported ideological intent on the part of the Fascist regime, Delogu insisted instead on the ­ 68 Note particularly Neppi Modona, ‘Tecnicismo e scelte politiche nella riforma del codice penale’ (n 65); and Piasenza (n 65). The rise in critical reflection on the Code in the 1970s appears to have been due to the passage of time since the end of the war, a new generation of legal scholars, and the climate of political contestation in Italy at the time, including an increasing political concern with criminal law reform. The fiftieth anniversary of the Code in 1981 produced a landmark collection of critical reflections in La Questione Criminale: note especially P ­Nuvolone, ‘La Parte Generale del Codice Rocco dopo Cinquant’Anni’ (1981) 7(1) La questione criminale 39; P Marconi, ‘Codice Penale e Regime Autoritario’ (1981) 7(1) La questione criminale 129; and on post-war reflection on the Code in the 1960s–1970s see F Bricola, ‘Considerazioni Introduttive’ (1981) 7(1) La questione criminale 7, 8–14. 69 P Pisa, ‘Osservazioni sull’uso legittimo delle armi’ (1971) Annali della Facoltà di Giurisprudenza dell’Università degli Studi di Genova 145. 70 ibid 147–48. On repressive policing in the Liberal era, the public order crisis of the 1890s, and repressive police practices in the early 1900s see RO Collin, ‘The Blunt Instruments: Italy and the Police’ in J Roach and J Thomaneck (eds), Police and Public Order in Europe (London, Croom Helm, 1985) 189–93; Dunnage, ‘Continuity in Policing Politics in Italy, 1920–1960’ (n 31) 64, 73, 81; J Dunnage, ‘Mussolini’s Policemen, 1926–43’ in G Blaney, Jr (ed), Policing Interwar Europe: Continuity, Change and Crisis, 1918–40 (Basingstoke, Palgrave Macmillan, 2007) 112–13; and Dunnage, Mussolini’s Policemen (n 32) 10–16. 71 Pisa (n 69) 149. This point had been specifically rejected by Delogu, ‘L’elemento politico nel codice penale’ (n 65) 185; see also Skinner, ‘Tainted Law?’ (n 4) 429. 72 Pisa (n 69) 150–52. 73 ibid 188. 74 Delogu, ‘L’Uso legittimo delle armi’ (n 55). 75 Delogu, ‘L’elemento politico nel codice penale’ (n 65).

Criminal Law and the Use of Force  311 narrative that it was introduced to clarify the law and that its technical-legal terms should be interpreted evolutively and teleologically, distinct from their original political context.76 Dismissing concern with law’s ideological foundation as being insurmountably relative, and therefore not an appropriate element of legal analysis (and so not the concern of lawyers), Delogu argued that Article 53 does not bear an indelible mark of any anti-­democratic politics, but instead affirms a basic principle of authority that even a democratic state must uphold.77 In that regard, he concluded, enforcing the law should not be seen in the democratic context as an end in itself, but rather a means to the greater end of protecting and promoting the general interest of society.78 In so arguing not only did Delogu seek to adapt the interpretation of Article 53 to a democratic way of thinking, but also to suggest that even under Fascism the state or public interest had not been unlimited due to the retention of a nullum crimen principle in Article 1 of the Penal Code, which had been the crux of his post-war anti-reform position.79 While that principle certainly distinguished Italian criminal law in this period from the National Socialist use of reasoning by analogy,80 Delogu’s view on it seemed to ignore the Fascist reconceptualisation of legality and the rule of law noted above. Overall therefore, the ideological genesis and status of Article 53 has been presented in divergent ways and, as it has remained in force post-1945, so its ideological character has continued to be contested. In this way the debate about Article 53 can be seen to encapsulate the principal substantive, theoretical and symbolic arguments about the character of the 1930 Penal Code itself and Italian lawyers’ reflection on its place in the country’s legal ­heritage. Crucially, at the heart of this debate about Article 53 is the tension between interpreting it as a specifically Fascist expression of authoritarianism or an unobjectionable example of universal and essential state power in the realm of law enforcement. The apparent uncertainty in this dichotomy, and thus the ideological identity of Article 53 and the extent of its particularity can usefully be assessed through a historical comparison.

The Use of Force in English Law The nature of the law on the legitimate use of arms in the 1930 Italian Penal Code is compared here with the law on the use of force and related institutional developments in a contemporaneous system at a different point on the political spectrum from Fascism, namely democratic Britain and the criminal law in force in England during the interwar period. This comparison indicates that despite that political distinction, there were some broad similarities between the two systems, pointing to commonalities in law enforcement practices. While this supports the view of some Italian commentators on Article 53 about its

76 Delogu, ‘L’Uso legittimo delle armi’ (n 55) 169. Alibrandi (n 66), a key study of reference in the post-war era, essentially agrees with Delogu’s position on these points. 77 Delogu, ‘L’Uso legittimo delle armi’ (n 55) 181, 190, 195, 201. See also Chiarotti (n 66) 115, 121 who noted that while in the reinstated democratic order a key principle in the use of force must be caution, that must be balanced with the wider obligation to protect rights and interests against breaches of the law and uphold respect for the law; similarly Lauro (n 66), whose work was primarily written for the police and carabinieri. 78 Delogu, ‘L’Uso legittimo delle armi’ (n 55) 196. 79 ibid 197; and Delogu, ‘L’elemento politico nel codice penale’ (n 65). 80 Note Skinner, ‘Fascist by Name, Fascist by Nature?’ (n 2) 84.

312  Stephen Skinner unexceptional expression of state coercive power, the key difference between them is apparent in the common law’s approach to the degree of permissible force. As with the preceding section, the terms and applicability of English law are outlined here as well as the more problematic question of its ideological content.

A.  The Common Law Rules: Terms and Applicability The closest equivalent to Article 53 in England was the provision in the common law for the use of force to prevent or suppress the commission of an offence, apprehend an offender, or respond to disorder, which existed in addition to, and was technically distinct from, the similar rules on using force in self-defence.81 This provision was derived from the overarching Crown prerogative power to preserve the King’s Peace, and to prevent and suppress crime, which was entrusted to the Home Secretary and local magistrates, and which all c­ itizens – including as discussed below soldiers and police officers – were required to uphold.82 The similarity with Article 53 lies in the fact that this common law provision could justify use of a weapon or other coercive force to suppress crime or disorder (and overcome opposition or resistance in so doing), and could operate as a general defence to any alleged offence of which the use of force would otherwise be an element. As with the consideration of ­Article 53 above, analysis of this aspect of English law requires consideration of those to whom these rules were applicable, and the degree of force allowed. The common law rules applied to those in official positions as well as to any civilian acting in response to crime or disorder.83 By the 1930s, the main institution with the responsibility for such matters was the police, which had existed in its modern form since 1829, although the regular army could still be called on for support in suppressing disorder if needed as a last resort.84 In this regard the approach of English common law needs to be considered both in terms of its fundamental conceptual differences from Italian law and its inherent tensions. These can usefully be addressed in general and specific terms. Generally, unlike Italian law’s category of ‘public official’, English law had long appeared, or at least claimed, to eschew the conceptual categories of continental systems and especially a hierarchical differentiation between private individuals and those engaged in official, public or administrative positions.85 Although the concepts of the Crown and the King’s 81 WTS Stallybrass, ‘A Comparison of the General Principles of Criminal Law in England with the Progetto Definitivo di un Nuovo Codice Penale of Alfredo Rocco’ Part III (1932) 14 Journal of Comparative Legislation and International Law 233 referred to the legal category of justificatory provisions as ‘privileged occasions’, which included ‘acts done for the advancement of law or justice’; however, he ignored the draft provision that was to become Art 53. 82 eg, O Hood Phillips, The Principles of English Law and the Constitution (London, Sweet & Maxwell Ltd, 1939) 342–43. On a police constable’s duty to prevent a breach of the peace see Duncan v Jones [1936] KB 218. Note also GB Parliamentary Papers, C.4673 (1909) Report of the Departmental Committee on the Duties of the Police with Respect to the Preservation of Order at Public Meetings, paras 7–8. 83 ECS Wade and G Godfrey Phillips, Constitutional Law (London, Longmans, Green & Co, 1933) 174. 84 C Townshend, Making the Peace: Public Order and Public Security in Modern Britain (Oxford, Oxford ­University Press, 1993) 80–111; AH Manchester, A Modern Legal History of England and Wales 1750–1950 (London, B ­ utterworths, 1980) 219–25; M Supperstone, Brownlie’s Law of Public Order and National Security, 2nd  edn (London, Butterworths, 1981) 135, 210, 212; Sir James Fitzjames Stephen, A History of the Criminal Law of England, vol 1 (New York, Burt Franklin, 1883) 200–06. 85 Compare JWF Allison, A Continental Distinction in the Common Law (Oxford, Oxford University Press, 2000) 122–28.

Criminal Law and the Use of Force  313 Peace were long standing, and the legal relationship between Crown and Parliament had been settled in the seventeenth century, by the nineteenth century there was still no generally accepted concept of a distinct ‘state’ in the common law or in British political thought,86 and the rejection of separate legal treatment for those in an official position was a key claim in influential constitutional theory.87 However, by the early twentieth century, and certainly by the 1930s, a public–private distinction was in law and in practice increasingly evident.88 Thus, the common law was based in principle on a conceptual order distinct from Italian law, with a different understanding of central and public authority and without a separate category of ‘public officials’, but in practice operated in a shifting institutional and administrative context that was at odds with that underlying understanding. More specifically and against that backdrop, the legal conceptualisation of those lawfully entitled to use force in a public-oriented or ‘state’ capacity reflected supposedly longstanding common law principles and growing institutional shifts and tensions. The common law position on the use of force had long been that everyone, whether citizen, soldier or police constable, shared the same responsibilities to suppress crime and disorder, and the same powers to use force in doing so.89 This was based on the perceived importance of ‘public defence’, to protect people and property from harm or loss, and the pragmatic aim of ensuring that action could be taken by anyone to uphold law and order. Even though the police had wider powers to use force than ordinary citizens in some situations, such as dealing with misdemeanours in the absence of an arrest warrant, and even though the police and soldiers were disciplined bodies who could lawfully use a wider range of weapons than ordinary civilians, under the basic common law rules all were treated in the same way and were deemed to have the same entitlement to use force in appropriate circumstances for tackling crime or disorder.90 The English common law’s approach was thus grounded on a general claim of equality of legal duties and responsibilities, putting function and action before status. This was influentially expressed by the 1929 Royal Commission on Police Powers and Procedure, set up to investigate alleged wrongdoing by the Metropolitan Police. According to the Commission: The police of this country have never been recognised, either in law or by tradition, as a force distinct from the general body of citizens … the principle remains that a policeman, in the view of the common law, is only ‘a person paid to perform, as a matter of duty, acts which if he were so minded he might have done voluntarily’.91

According to that interpretation, even though the police performed a ‘public office’ or ­function they were not ‘public officials’ with a special status, but were the same as ordinary

86 C Laborde, ‘The Concept of the State in British and French Political Thought’ (2000) 48 Political Studies 540. 87 AV Dicey, Introduction to the Study of the Law of the Constitution (London, Macmillan, 1885). 88 eg, note J Jowell, ‘The Rule of Law Today’ in J Jowell and D Oliver, The Changing Constitution, 3rd edn (Oxford, Oxford University Press, 1994) 59–60. 89 Manchester (n 84) 219–20; S Skinner, ‘Citizens in Uniform: Public Defence, Reasonableness and Human Rights’ (2000) Public Law 266, 272–78. 90 G Marshall, Police and Government (London, Methuen, 1965) 18. 91 GB Parliamentary Papers, Cmnd 3297 (1929) 6, para 15, quoted in TA Critchley, A History of Police in England and Wales (London, Constable, 1978) 201. The source relied on by the Commission is identified by Critchley and by L Lustgarten, The Governance of Police (London, Sweet & Maxwell, 1986) 26 as Stephen (n 84) 494. The 1920 Report on Police Powers focuses on the investigation of crime rather than its prevention and suppression and, while ­covering powers of arrest, does not include the use of force to that end.

314  Stephen Skinner citizens and remained equal before the law.92 Moreover, since their introduction in 1829 the police had not been organised as a single force under central state control, and by the interwar period existed in three main forms: the Metropolitan Police, which was considered to be a distinct force with a close relationship with central government, as well as borough forces and county forces, which were tied to local control structures. However, the extent of local control was unclear93 and became an increasing cause for concern during the industrial unrest of the 1920s and ongoing fears of Communist revolt in the aftermath of the Russian Revolution.94 These factors led to growing pressures towards the centralisation of control over all police forces, to improve efficiency and reduce potentially dangerous local political influences.95 These concerns appeared to be crystallised by a problematic judgment in 1930. The decision in Fisher v Oldham Corporation,96 a case about the civil liability of Oldham borough police authority for false imprisonment by constables of the local police force, represented a landmark in the legal history of policing in England. Rejecting the claim that Oldham Corporation (the administrative authority), which had responsibility for appointing police constables, was liable for their conduct due to a master–servant relationship, McCardie J asserted that a police constable was ‘not the servant of the borough’ but ‘a servant of the State, a ministerial officer of the central power, though subject, in some respects, to local supervision and local regulation’.97 This ruling thus linked police officers with the state, in the sense of central authority, and emphasised their operational independence from local direction.98 The decision was therefore intended to limit the scope of the local authority’s possible liability and thereby the risk that local control might be affirmed ‘over the arrest and prosecution of all offenders’ in ways going against state interests, which McCardie  J stated would ‘involve a grave and most dangerous constitutional change’.99 English law thus appeared to be developing a distinct understanding of a state-centric ‘public official’ in the sphere of policing at odds with otherwise non-statist ideology. With these contextual and legal developments in mind, the last element to be considered here is the degree of force permissible under the common law rules for enforcing the law and public order, which was dependent on the sort of crime involved. Any degree of force necessary could be used to suppress or prevent the most serious sorts of crime, categorised as treason or felony, or to prevent the escape of someone who had committed such an offence.100 For less serious offences, or misdemeanours, only minimal necessary force 92 J Anderson, ‘The Police’ (1929) Public Administration 192, 192; also cited in G Marshall, Police and Government (London, Methuen, 1965) 33. See also Critchley (n 91) 201–02. 93 Marshall (n 90) 30; Lustgarten (n 91) 41. 94 Townshend (n 84) 80–111. 95 C Emsley, The English Police (London, Longman, 1991) 142–45; Lustgarten (n 91) 43–47. Sir Edward Troup (the former Permanent Under-Secretary of State in the Home Office, 1908–22) in ‘Police Administration, Local and National’ (1928) 1 Police Journal 5, argued that the organisation of police in England reflected and should continue to reflect a balance between central authority and local influence or cooperation (the exclusion of which would be ‘contrary to the genius of the English people’, ibid 9). Troup noted as a comparative example the centralised carabinieri in Italy, ibid 6, which he decided would not be tolerated in England, ibid 17, but made no mention of the Fascist regime. 96 Fisher v Oldham Corporation [1930] 2 KB 364. 97 ibid 371, and note 367–70 on the analysis of legal provisions demarcating the extent of local and central authority over the police; see also Lustgarten (n 91) 59. 98 Marshall (n 90) 33–45; Lustgarten (n 91) 47–48, 56–60; Emsley, The English Police (n 95) 164. 99 Fisher v Oldham (n 96) 377–78. 100 Note also JC Smith and B Hogan, Criminal Law (London, Butterworths, 1965) 230–32.

Criminal Law and the Use of Force  315 could be used.101 Importantly in this period whereas a riot was classified as a misdemeanour, it could become a felony at common law if it involved the commission of an offence that was itself categorised as a felony, and under the Riot Act 1714 a disorderly crowd of 12 or more persons who failed to disperse one hour after the reading of a proclamation ordering them to do so became guilty of statutory felony.102 The core of the common law on the use of force was thus necessity in the circumstances, otherwise expressed in terms of reasonableness. The element of necessity was interpreted to require balance, even in the most serious situations, in that ‘the force used must always be moderated and proportioned to the circumstances of the case and to the end to be attained’,103 with some analyses of the law indicating the importance of values of caution and restraint.104 Moreover, the necessity of the force required honesty in the subject’s belief about and response to the situation, and was also interpreted with regard to whether or not an alternative course of conduct had been possible.105 If the reasonableness test was not satisfied, there could be criminal liability for a use of excessive force.106 English law thus encompassed a range of possible agents of the state, as well as ordinary citizens, purported to consider them all in the same way and required, at least in principle, moderation in the use of force.

B.  The Common Law Rules: Rationales and Interpretations When it comes to considering the possible ideological dimensions of the law on the use of force in England and Wales there is a relative dearth of contemporaneous and subsequent commentary engaging with political dimensions of the rules’ origins and objectives. Unlike Article 53 of the Italian Penal Code, the English common law rules were not introduced through codification or legislation with accompanying statements of purpose, and so could not be associated with the political character of a new legal order or government. As long-standing rules that remained the same while the institutional structures and 101 The difference between felony and misdemeanour was not entirely logical: according to AE Rowsell (Chief Inspector, Exeter City Police) in ‘The Powers of a Constable as they Apply to Special Constables’ (1938) 11 Police Journal 45, 47, ‘There is no rule or principle which can be followed, and it is necessary to memorise the categories into which each offence falls’. This discussion of various powers exercisable by private individuals, constables and special constables only mentions force used for breaking open doors, ibid 52–53. Note also CR Hewitt (Chief Inspector, City of London Police) in ‘Felony and Misdemeanour’ (1941) 14 Police Journal 172, 175 and 179. 102 Stephen (n 84) 202–03; Phillips (n 82) 343, 333–34; R Vogler, Reading the Riot Act: The Magistracy, the Police and the Army in Civil Disorder (Milton Keynes, Open University Press, 1991). 103 GB Parliamentary Papers, C.7234 (1893), Report of the Committee appointed to inquire into the Circumstances Connected with the Disturbances at Featherstone on 7th September 1893, 9–10. On the difficulty of ensuring the appropriate degree of force in the circumstances see R v Pinney (1832) 5 Car & P 254, 270. The lack of legal distinction between civil or military status and the reliance on a test of necessary force was also confirmed in GB Parliamentary Papers, C.236 (1908), Report of the Select Committee on the Employment of Military in Cases of Disturbances, iii. Note JH Beale, ‘Justification for Injury’ (1928) 41 Harvard Law Review 553, 557. See also GB Parliamentary Papers, C.2345 (1879) Report of the Royal Commission Appointed to Consider the Law Relating to Indictable Offences 11. 104 GB Parliamentary Papers, C.7234 (1893), Report of the Committee (n 103) 10. 105 ibid 10; Supperstone (n 84) 380 citing RD Isaacs and J Simon, Opinion of Law Officers (18 Aug 1911) on the duty of soldiers called upon to assist the police. 106 GB Parliamentary Papers, C.7234 (1893), Report of the Committee (n 103) 10. On excessive force note R v Pinney (n 103) 270; R v Biggin [1920] 1 KB 213 and Smith and Hogan (n 100) 230–32. There was no specific provision on this point in English law equivalent to Art 55 of the Italian Penal Code.

316  Stephen Skinner socio-political context in which they operated changed, any ideological significance they may have had during the interwar period needs to be sought with regard to their broader systemic setting. One aim of the common law rules on the use of force was to make them applicable to all, treating soldiers, police and civilians alike, emphasising their autonomy of action, in order to facilitate the use of force to suppress crime and disorder. Although couched in the language of tradition, common law egalitarianism, and the rule of law, this rationale had deeper roots in political and judicial concerns about the status and control of the armed forces (mainly long-standing opposition to a standing army), combined with concerns about suppressing disorder, resulting in the universalisation of duties to do so in order to simplify their application and enforcement.107 Thus, although the liberal-democratic order in Britain did not make ideological claims about a strong state and the importance of coercive power, the rules had nevertheless been developed to facilitate social control. In substantive legal terms, considered in context, another aim of the common law was to make the degree of permissible force flexible and dependent on circumstances. This reflected a pragmatic aim of ensuring that anyone acting to suppress crime or disorder could do what was needed, as well as an arguably ambivalent attitude to the use of force in England at the time. In that sense, the requirement of reasonableness was partly in line with an apparent process and culture of reducing the resort to force. Reliance on military support to suppress disorder declined from the end of the First World War in favour of the police, which was supposed to be a non-militaristic force that was not routinely armed, and the use of reasonable force was said to require it to be moderate and proportionate in the circumstances. However, the non-military police of the early nineteenth century had become more military in appearance by the end of that century, and while still not routinely armed the police could respond forcefully to disorder nonetheless.108 Whereas resort to military force had been unambiguously associated with firm (even fatal) repression,109 the supposedly lighter touch of the civil police was not always evident, especially in circumstances involving political meetings and disturbances,110 and as indicated in Fisher v Oldham there was increasing pressure towards centralised control.111 Moreover, in the interwar period there was apparently no explicit reference, or implicit adherence, to the supposedly foundational statement of principles for the Metropolitan Police attributed to the Home Secretary, Sir Robert Peel 107 Skinner, ‘Citizens in Uniform’ (n 89) 272–78. 108 C Emsley, ‘Peel’s Principles, Police Principles’ in J Brown (ed), The Future of Policing (London, Routledge, 2013) 15. 109 C Stanhope Kenny, Outlines of Criminal Law, 13th edn (Cambridge, Cambridge University Press, 1929) 285 cited Lord Haldane, Secretary of State for War in charge of the army from 1905 to 1912 and Lord Chancellor from 1912 to 1915 and 1924, speaking in 1920: ‘The law of England is unswervingly Socialistic. The individual rioter must be shot down rather than be allowed to interfere with the good of the community’. 110 KD Ewing and CA Gearty, The Struggle for Civil Liberties: Political Freedom and the Rule of Law in Britain, 1914–1945 (Oxford, Oxford University Press, 2000) 275–302 and on the ‘Battle of Cable Street’, 302–07 in which police used ‘aggressive’ measures to prevent protesters disrupting a march by the British Union of Fascists; see also RC Thurlow, ‘The Straw that Broke the Camel’s Back: Public Order, Civil Liberties and the Battle of Cable Street’ in T Kushner and N Valman, Remembering Cable Street: Fascism and Anti-Fascism in British Society (London, Vallentine Mitchell, 2000). Dunnage, Mussolini’s Policemen (n 32) 95–99 argues that police practices in the colonial context indicate that repressive force, despite apparent legal restraint, was a common feature under both Fascism and democratic systems. 111 See Townshend (n 84) 80–111.

Criminal Law and the Use of Force  317 in 1829, which have been much emphasised in post-war police discourse.112 While these semi-mythical principles purport to indicate a long-standing ideology of minimal force,113 this was not evident in the 1920s–1930s.114 Overall therefore, while the common law provisions on the use of reasonable force required, at least in principle, that force should not be unlimited, practice suggests that force was not necessarily minimised.

State Power and the Use of Force in Interwar Italy and England A notable and recurrent point of interpretation in the doctrinal commentary on Article 53 of the Italian Penal Code was that it represented a core state power that was essential in any system. As this comparative and contextualised study of Article 53 and the common law has shown, both systems had rules exempting the use of force for the suppression of crime and disorder, and both appeared to share a rationale of upholding central state authority. Article 53 was more explicit in this respect and echoed Fascist politico-legal doctrine emphasising the primacy of authority, making the strong state and its will central to its supposedly new model of social order and legality. Yet such a concern was equally apparent in England, in the context of a system that did not make explicit ideological claims about the importance of state authority and law enforcement, but which had shaped the common law rules to facilitate the use of force to suppress crime and disorder, and which found itself in the interwar period faced by apparently serious threats to security that were deemed to necessitate centralised control. This highlights once more the existence of intersections between politically distinct legal systems and processes of systemic change in this period,115 and the problem of differentiating between identities of states on different points of the political spectrum when issues of public order and security are at stake. In this regard it is important to note that both systems grounded the use of force in law, authorising it and to differing degrees circumscribing it within the bounds of legality or a form of ‘rule of law’. Even though the exact sense of that concept in each system was not the same, Fascism like democracy gave the use of force a legal basis rather than merely allowing arbitrary and unfettered repression.116 The Weberian sociological definition of state in terms of the monopoly of legitimate force thus applies equally to both systems, to the extent that both sought to legitimate their power to resort to force through apparent 112 These principles, or ‘General Instructions’, remain part of official police discourse: see, eg: www.gov.uk/ government/publications/policing-by-consent/definition-of-policing-by-consent. 113 The relevant (supposed) principles are: 1. The basic mission for which police exist is to prevent crime and disorder as an alternative to the repression of crime and disorder by military force and severity of legal punishment; 4. The degree of cooperation of the public that can be secured diminishes, proportionately, to the necessity for the use of physical force and compulsion in achieving police objectives; and 6. The police should use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice and warning is found to be insufficient to achieve police objectives; and police should use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective. 114 Emsley, ‘Peel’s Principles, Police Principles’ (n 108) 11–13 argues that the principles appear to have been formulated by the police historian, Charles Reith in the 1950s. See also I Loader, ‘In Search of Civic Policing: Recasting the “Peelian” Principles’ (2016) 10 Criminal Law and Philosophy 427, 429; and Critchley (n 91) 52–53. 115 See further Pires Marques (n 11) 171; and Skinner, ‘Crimes Against the State’ (n 2) 501–02. 116 Skinner, ‘Fascist by Name’ (n 2) 84.

318  Stephen Skinner legality, or ‘the belief in the validity of legal statute and functional “competence” based on rationally created rules’.117 According to Weber this monopoly represented the common means of the modern state and was the essential attribute by which all states could be described. Although the issue of belief in legality raises questions about public perceptions and beliefs in the legitimacy of force, for present purposes the main point here is state reliance on law to legitimate its own practices. In that sense, just as English criminal law justified the resort to reasonable force for permitted purposes and sought to monopolise the police, as the increasingly predominant institution for using force, within central state control, so Article 53 expressly declared that it covered the ‘legitimate use of arms’. Both systems similarly authorised citizens to use force for these purposes on behalf of the state. Ostensibly therefore both forms of state shared the same means for maintaining law and order as a centralised state function. However, while this similarity demonstrates the descriptive generality of Weber’s definition (which was its purpose), the detail of the legitimation process is revealing. As noted above, the Fascist ‘rule of law’ was merely a way of expressing the importance of state authority in legal form, and even though the rule of law in interwar Britain could be flexible in upholding state power,118 the crucial difference between them lay in their conception of state power itself. The distinction between the law under Article 53 and the common law on the use of force can thus most clearly be seen in the degree of force they permitted.119 This was arguably the principal indicator of each system’s distinct conceptual understanding of the relative merits of the competing aims and values at stake in a situation in which force was used,120 namely the interests and importance of the state and the public official on the one hand, and those of the person against whom force was used on the other. The reason for the proportionality requirement in the common law rules was not clear from official statements of the law, but appears to have been based on a combination of ideas. These included the sense that whoever used force in the name of law and order should, at least in principle, be expected to exercise restraint, partly because there should be a just equivalence between force used and the apparent threat or criminal act against which it was deemed necessary, and partly because of a pragmatic sense that excessive force would be counterproductive in volatile circumstances by aggravating existing tension or antagonising a disorderly crowd, for example.121 The need for proportionality was also arguably based on a nascent sense that the rule of law had a protective function even for offenders. In contrast, despite some indications to the contrary based on the provision’s technical interpretation,122 the specific terms of Article 53 did not explicitly require proportionality. Whereas the common law’s meaning depends on its interpretation in practice, in Italian law there is an important legal and symbolic difference between the express provision of the Penal Code and doctrinal or judicial interpretation of it. In that regard, the wording 117 Weber (n 5) 79; and D Held, ‘Central Perspectives on the Modern State’ in G McLennan, D Held and S Hall (eds), The Idea of the Modern State (Milton Keynes, Open University Press, 1984) 62–63. 118 Skinner, ‘Crimes Against the State’ (n 2). 119 Further contextual work falling beyond the scope of this chapter is needed to investigate how the law was understood by policing institutions and applied by the courts in each system. 120 Dyson (n 10) 206, for whom the concept of state reflects the ideological values in relation to which public authority is exercised. 121 Note, eg, CJ Whelan, ‘Military Intervention in Industrial Disputes’ (1979) 8 Industrial Law Journal 222, 229. 122 See above (n 43) and related text.

Criminal Law and the Use of Force  319 of ­Article 53 indicates original legislative intent.123 Its deliberate wording suggested that any use of arms by a public official could be permissible whenever necessary to overcome violence or resistance to authority. It could be seen to express the idea that any person resisting the state’s authority placed himself or herself completely outside the scope of Fascist legality and the total state, becoming a non-Fascist enemy to be suppressed, or even eliminated if necessary and without restraint. This interpretation arguably echoes Fascist discourse about justifying the death penalty as an extension of the state’s war power and an essential weapon in the fight against crime.124 Above all, the absence of proportionality in Article 53 could be understood to reflect the core of the Fascist ideology of the strong state and its anti-Kantian denial of individual worth,125 reducing individuals to mere means to the state’s ends and considering them expendable if they stood in its way. The crucial point is that while the common law reflected, at least in principle, an ideological acceptance that a core means of state power – and that power itself – could in some circumstances be limited, Article 53, by reflecting the Fascist ideology of the strong state, asserted that state power and authority were unlimited ends in themselves, to be upheld by any means.

Conclusion This analysis of criminal law provisions on the state’s use of force under Fascism, as compared with the common law rules in England in the same period, has shown that when seeking to ‘excavate’ the ideological influences on and content of criminal law,126 it is important to understand that they are multilayered and involve system-specific challenges. First, it is necessary to differentiate among the ideological content of statements of legislative intent, the possible ideological content of the law itself, and the ideological content of political discourse about the law. In the Italian example, the law had a specific point of origin in a process of codification, accompanied by statements of purpose and commentary. While the preparatory works indicated some rationales for Article 53, they did not give an explicit indication of political motives, and while commentary provided more ideological readings of the law, commentators’ claims about Fascist motivations and significance, or the law’s neutral logic, are not conclusive. Contemporaneous commentators’ interpretations may have been due to a desire to please the regime, either by emphasising its goals or likening it to other systems, rather than providing objective analysis, and post-war commentaries were ideologically positioned within the political debate about the 1930 Code’s retention and reform, as well as Italy’s relationship more generally with its Fascist past. The possible ideological origin and content of criminal law may thus be elusive or entangled with the ideology of interpretation and representation. Secondly, where evidence of ideology is unavailable or unclear, it becomes necessary to try to reconstruct legal provisions’ ideological dimensions from other evidence. This was the challenge facing post-war Italian commentary on Article 53, and the analysis of English 123 Compare Pisa (n 69) 188. 124 Skinner, ‘Violence in Fascist Criminal Law Discourse’ (n 8) 45–52. 125 See above (n 7–8) and related text. 126 Compare the discussion in I Loader and R Sparks, ‘Ideologies and Crime: Political Ideas and the Dynamics of Crime Control’ (2016) 17 Global Crime 314, 325–26.

320  Stephen Skinner law developed here, given that the common law rules had long been in force by the interwar period and were not accompanied by statements of official rationales or interpretations specific to the circumstances of that period. This reconstruction process has involved considering the possible ideological bases and inflection of these bodies of law in relation to their longer history, their broader systemic setting and their context. Grasping and evaluating the relationship between ideology and criminal law in this way involves an inductive interpretative process, moving from specific evidence about the law in the context of prevailing circumstances and institutional practices, to a general interpretation of its apparent political and symbolic meaning.127 Yet while this sort of inductive analysis can elucidate legal provisions’ deeper significance, as an effort to recover and interpret the realm of ideas behind the law it nevertheless remains contingent and contestable. Thirdly, this discussion of criminal law in Italy and England, through its comparative dimension, has also underlined the need to consider ideology in the sense of system-specific jurisprudential foundations. A key aspect of the analyses of the two examples of law considered here has been their different approaches to the status of actors, the subjects of the rules on the use of force. Although both systems apparently sought pragmatic effectiveness, extending the rule on the use of force to include all potential actors able to suppress crime or disorder, in order to ensure that that objective could be pursued by as many people as necessary in a given situation irrespective of a priori categories, their starting points were distinct. Italian criminal law, as a codified civil law system, was rooted in a French-­ influenced constitutional and administrative legal model (despite Rocco’s claimed rejection of some post-French Revolutionary principles). The Fascist ideology of the strong state could be fostered through criminal law by building on the pre-existing conceptual model of the statist civil law tradition. Whereas Article 53 focused on public officials, who could call on‘any person’ for assistance and thereby bring them within the scope of this hierarchical exemption, English law purportedly rejected a distinct model of state and its related categories, and preferred (at least in principle) community-based law enforcement in terms of equal citizens under the law. Yet, although the common law was supposedly non-statist, it was not an obstacle to the affirmation of central state authority over law enforcement. It therefore appears that while the inherent ideology of a legal tradition can support political ideology and facilitate its implementation, it is not on its own sufficient to explain ideological changes or – more importantly – to resist them. Overall, this chapter has demonstrated that the ongoing debate about the 1930 Italian Penal Code and its relationship with Fascism can be enriched by considering its provisions and ideological dimensions in transnational context, and how such dimensions might be addressed historically. This comparative and ideological approach has shown both where the law under the Fascist regime was uncomfortably similar to that in a democratic politicolegal system in the area of law enforcement, and where the two bodies of law diverged. Fascism as a socio-political movement was rooted in physical and ideological force and violence, which it incorporated into its criminal law, but force and law are also intertwined in the conceptual fabric and practices of the modern state, as features of all political systems. It is therefore essential to seek to unravel the ideological foundations and influences that shape them, and which indicate the fragile nature of their differences.

127 ibid.

15 The Restless National Security Acts: The Absence of Crimes Against National Security in the 1940 Brazilian Penal Code DIEGO NUNES AND RICARDO SONTAG*

Introduction Political crimes play a key role in the historic comprehension of any authoritarian or totalitarian regime. The Criminal Code issued in 1930 by the Italian Fascist regime, for instance, opens its section (Book Two) on Specific Offences by highlighting crimes against the ‘personality’ of the State (delitti contro la personalità dello Stato), which consolidated a repressive structure directed at the persecution of political dissent. This is equally true for the authoritarian regime established in Brazil on 10 November 1937, the so-called Estado Novo (1937–45). The President of this new regime, Getúlio Vargas, rose to power after a coup d’Etat in 1930. In 1934, his regime promulgated a new Constitution and scheduled new presidential elections for January 1938. Vargas, mobilising the popular mindset by fear of communism, managed to plan a new coup, and in a radio broadcast announced to the nation the new – and authoritarian – 1937 Constitution. The importance assigned to the annihilation of political enemies is noticeable in the new Constitution’s preamble: Taking heed of the Country’s apprehensive state created by communist infiltration, which becomes more extensive and profound as each day passes, requiring radical and permanent solutions … [the President] has decided to ensure the Nation’s unity and respect for its honour and independence; and, for the Brazilian people, under a regime of social and political peace, the required conditions for its safety, well-being and prosperity; by adopting the following Constitution.1

The National Security Act of 1935 and the establishment of the National Security Tribunal (Tribunal de Segurança Nacional) in 1936 introduced a new apparatus for fighting political

* This research was funded by FAPEMIG (January 2017 Demanda Universal) and by UFMG (PRPq May 2016). A preliminary version of this chapter was published in Portuguese in the proceedings of the VII Congresso ­Internacional de Estudos Ibero-Americanos (2008). This chapter is a substantially modified and developed version, presenting new and original research on the sources and new interpretations. 1 Constitution of the United States of Brazil, 10 November 1937, Rio de Janeiro, available at: www.planalto.gov. br/ccivil_03/constituicao/constituicao37.htm.

322  Diego Nunes and Ricardo Sontag enemies in Brazil.2 Under the Estado Novo, in 1937 a statute closed down political parties and criminalised the activities of their members; and a new National Security Act in 1938 enacted new crimes and more severe punishments, such as longer terms of imprisonment and the death penalty. The Brazilian Penal Code in force at the time dated from 1890, shortly after the Proclamation of the Republic in 1889. Following the tradition of the first independent Brazilian Criminal Code of 1830, the 1890 Code’s Special Part (the section on specific offences) opened with a catalogue of political crimes. Moreover, since 1892 several drafts had been proposed with the intent of replacing the not so prestigious 1890 Penal Code,3 all of which also contained a chapter on specific offences, including provisions on political crimes. In 1937, the Estado Novo’s Minister of Justice, Francisco Campos asked José d’Alcântara Machado, a professor at the Faculty of Law of São Paulo, to draft a new code. In 1938 Nélson Hungria, Roberto Lyra, Narcélio de Queiroz and Vieira Braga, led by Minister of Justice Francisco Campos, formed a commission responsible for reviewing Alcântara Machado’s draft code. The resulting report excluded its chapter on political crimes. As a result, the Code enacted in 1940 did not cover such offences. In other words, one of the areas regarded as of major importance in the Estado Novo’s penal reforms was left out. The existence of individual statutes on political crimes, outside criminal codes, was fairly common in the penal law of European authoritarian and totalitarian states. As repressing political enemies played an important role within those regimes’ ideologies, the sections of their codes on offences and punishments invariably opened with political crimes. Therefore, it is not incidental that the Brazilian Penal Code enacted in 1940 was often regarded as liberal, in spite of the Estado Novo’s authoritarian ideology.4 In fact, the absence of political crimes in the 1940 Brazilian Penal Code is unusual not only in comparison with authoritarian and totalitarian codes of that period: probably all European and Latin American codes in force in the 1940s had a chapter or at least a few dispositions on political crimes.5 Consequently, as the general focus of this book is on the relationship between ideology and criminal law under authoritarian regimes, this chapter addresses this issue by focusing on an apparently paradoxical case in the history of Brazilian criminal law, in which there seems to exist a contradiction between the regime’s ideology and its criminal law. 2 See further D Nunes, Le ‘Irrequietas Leis de Segurança Nacional’: Sistema Penale e Repressione del Dissenso Politico nel Brasile dell’Estado Novo (1937–1945) (Macerata, Università di Macerata, 2014) 241–366, available at: u-pad.unimc.it/retrieve/handle/11393/192670/2863/Diego%20Nunes%20tesi%20Leis%20de%20seguran%C3% A7a%20nacional%20UniMC.pdf. 3 On the first of these (1893–99) see R Sontag, ‘Código criminológico’? Ciência Jurídica e Codificação Penal no Brasil 1888–1899 (Rio de Janeiro, Revan, 2014). After 1899, three drafts were proposed: see G Siqueira, Projecto de codigo penal brazileiro (Rio de Janeiro, Jornal do Brazil, 1913); V de Sá Pereira, ‘Projecto de codigo penal’ ­(December, 1927) Archivo Judiciario 4; V de Sá Pereira, ‘Exposição de motivos do projecto Sá Pereira’ (July–August, 1937) Revista de direito penal 18; and J de A Machado, Projeto do Código Criminal Brasileiro (São Paulo, RT, 1938) on his draft of 1937. 4 Although contrast R Sontag, Código e Técnica. A Reforma Penal Brasileira de 1940, Tecnicização da Legislação e Atitude Técnica Diante da Lei em Nelson Hungria (Florianópolis, Universidade Federal de Santa Catarina, 2009), available at: www.tede.ufsc.br/teses/PDPC0931-D.pdf; and C Prando, O Saber dos Juristas e o Controle Penal. O Debate Doutrinário na Revista de Direito Penal (1933–1940) e a Construção da Legitimidade pela Defesa Social (Rio de Janeiro, Revan, 2013). 5 We have examined 39 codes within the collections edited by Marc Ancel and by Jimenez de Asúa (in the 1950s and in the 1940s, respectively). See M Ancel and Y Marx, Les côdes penaux européens. Nouvelle Collection du Comité de legislation étrangère et de Droit international (Paris, Centre français de droit comparé, 1971); L J­ imenez de Asúa and F Carsi Zacarés, Códigos penales iberoamericanos según los textos oficiales. Estudio de legislación comparada (Caracas, Andrés Bello, 1946).

The Restless National Security Acts  323

The Exclusion of Political Offences: Contested Reasons During the passing of the 1940 Penal Code its statement of purpose (Exposição de Motivos) was very brief in justifying such an apparently paradoxical choice, but both opponents and supporters of the Commission’s opinion discussed the topic. The nineteenth-century ­Italian jurist, Francesco Carrara, in a chapter about political crimes in the last volume of his Programma del corso di diritto criminale, stated that: If I encountered an empirical doctrine that changed according to human whims … its study would make me nauseated … But do these absolute principles of criminal law exist in the range of political crimes? I seriously doubt it … Naively I once believed the politics of liberal regimes were not despotic politics: but new experiences have unfortunately shown me that whenever and wherever politics enters the temple’s door, justice escapes in horror through the window, to return to heaven.6

His purpose was to delegitimise a type of crime particularly embedded within contingencies. To some extent, it might be interpreted as a manifesto against political manipulations of law, even by liberal governments.7 Later, Brazilian jurists would appropriate Carrara’s arguments in order to justify the absence of political crimes in the 1940 Penal Code. For example, a few years later Nélson Hungria explained the Commission’s decision to exclude political crimes from the 1940 Penal Code by stating that: ‘The chapter related to crimes against the State was entirely cancelled in order to save the future Code from the instability of the criteria related to this kind of criminality, the object of restless National Security Acts’.8 The ‘instability of the criteria’ used to prosecute such criminality led to a ‘restless’ legislation: the ‘national security acts’ that aimed at the penal repression of political dissent, during the Brazilian authoritarian regime, were difficult to consolidate into a stable system. Hungria expressed his opinion on the subject during a conference in 1954, when he was considered to be an experienced and respected jurist, besides being a judge of the Brazilian Supreme Federal Court. However, in order to understand the absence of political crimes from the 1940 Penal Code, the arguments presented at that time concerning this issue, and the appropriation of Carrara’s opinion by Brazilian legal discourse during the 1940s, we must consider the structure and dynamics of two key concepts: ‘levels of legality’9 and ‘legal regimes of exception’,10 especially after 1930.

6 F Carrara, Programma del corso di diritto criminale, Parte Speciale, vol VII, 2nd edn (Lucca, Tipografia Giusti, 1874) 626, 635. 7 Note Mario Sbriccoli’s historical interpretation of Francesco Carrara’s discourse on political crimes: ‘His decision not to discuss political crime issues had an element of protest’. See M Sbriccoli, ‘Politica e giustizia in Francesco Carrara’ in M Sbriccoli, Storia del diritto penale e della giustizia: scritti editi e inediti (1972–2007), vol I (Milano, Giuffrè, 2009) 486–87. 8 N Hungria, Comentários ao Código Penal, vol IX (Rio de Janeiro, Forense, 1958) 354. 9 M Sbriccoli, ‘Caratteri originari e tratti permanenti del sistema penale italiano (1860–1990)’ in M Sbriccoli, Storia del diritto penale e della giustizia: scritti editi e inediti (1972–2007), vol I (Milano, Giuffrè, 2009). 10 M Meccarelli, ‘Regimes jurídicos de exceção e sistema penal: mudanças de paradigma entre Idade Moderna e Contemporânea’ in A Dal Ri Jr and R Sontag (eds), História do Direito Penal entre Medievo e Modernidade (Belo Horizonte, Del Rey, 2011).

324  Diego Nunes and Ricardo Sontag

Double Levels of Legality and Political Crimes (1930–36) The development of liberal criminal systems comprises a ‘double level of legality’, a ­historiographical category created by Mario Sbriccoli. In Sbriccoli’s opinion, those levels are an ‘original and permanent trait’ of the Italian penal system,11 and the same concept might also be applied to Brazilian law. The ‘double level of legality’ means adapting a penal system, based on legality guarantees, to respond to security demands concerning political dissent and freedom of movement. In Sbriccoli’s analysis, Italian Fascism provides a clear example, because instead of opposing the techniques of the Liberal order, it claimed to be its ­continuity. The differences lie in the way the Fascist levels of legality were stratified. A further historiographical category, which will guide our analysis, is that of ‘exception paradigms’, an expression coined by Massimo Meccarelli.12 By using this category, we are able to understand how ordinariness and extraordinariness (ordinarietà and ­straordinarietà) relate to each other within the structure of penal law. According to ­Meccarelli, emergencies such as political dissent are handled with the use of exceptional measures: again, the Fascist experience13 illustrates how the use of the legality principle might lose its sense of protecting civil liberties, and how emergency legislation plays a role within an authoritarian system. This is also a useful device for interpreting the events of 1930–40 in Brazil because, as in Italy, Brazil reformed its Penal Code and its criminal justice system after passing emergency legislation to repress political dissent. This gave both countries’ penal codification a rather authoritarian imprint and allowed institutions such as the Italian Special Tribunal for the Defence of the State (Tribunale speciale per la difesa dello Stato), and the Brazilian National Security Tribunal (Tribunal de Segurança Nacional), to play a role within their legal systems, although they themselves were biased authorities. As a consequence, in the 1930s, Brazil saw the creation of a parallel system, outside the Penal Code, to repress political dissent. Nevertheless, until the middle of the 1930s there had been no clear rupture with the liberal paradigm of political crime. Some of the essential characteristics of this liberal paradigm established in the nineteenth century were: the altruistic purpose of political criminals; a mitigated prison regime (the so-called custodia honesta,14 a special form of detention without labour, article 42, Act no 38 of 4 April 1935); the prohibition of extradition; and judgment by regular courts (neither military, nor exceptional ex post facto). Within this liberal paradigm political crimes were certainly taken seriously but harsh punishments were seldom considered necessary because every political crime was deemed to have an altruistic purpose, that is, to improve political institutions. In fact, political crimes were considered an ‘evolutive delinquency’: this was the main reason for the relatively benevolent treatment of political criminals. It was deemed nonsense to punish harshly an individual who was altruistic in his purpose, even one who 11 See Sbriccoli, ‘Caratteri originari e tratti permanenti del sistema penale italiano (1860–1990)’ (n 9) 589, 668. 12 M Meccarelli, ‘Paradigmi dell’eccezione nella parabola della modernità penale: Una prospettiva storico-­giuridica’ (2009) 131 Quaderni storici 493. 13 ibid 507–08. 14 E Ferri, Sociologia criminale (Torino, Fratelli Bocca, 1900) 717, 721, fn 1.

The Restless National Security Acts  325 had used inappropriate means. Furthermore, at the time it was commonly accepted that there would only be punishment for the unsuccessful, whereas those who triumphed would instead be regarded as revolutionary heroes. Since the nineteenth century all these considerations  were already present in the Italian ‘civil penal law’ (penalistica civile) tradition. ‘Classical’ and ‘positivist’ thinkers alike generally recognised the distinct character of political crimes.15 However, in order to explore how these concepts contributed to the development of a criminal ideology in the Brazilian penal system under Vargas, it is also necessary to consider the preceding period, since the problems with levels of legality and emergency measures are ‘permanent traits’ of Brazilian law. After the promulgation of the second Brazilian Penal Code in 1890 (during the First Republic, 1889–1930), anarchism became a threat to the Brazilian Liberal regime. A brief analysis will allow us to explore the duality of legality in that period, first within penal law (political crimes were covered in the 1890 Code and by special legislation) and afterwards in ‘extra-penal’ regulations16 regarding the deportation of foreigners. During that period in Brazil, preventive measures were also improved: police activity gained more power, particularly with the introduction of police departments specialising in social and political order (Delegacias de Ordem Política e Social). Moreover, legal scholarship contributed to the legitimation of persecution by distinguishing between political and social crimes (to be more precise, anarchism), a dual repressive model that was later employed by the Vargas regime (although during the 1930s anarchism was already regarded as an obsolete doctrine, and the real problem became communism). In the period from Vargas’s rise to power to the establishment of the Estado Novo, the construction of a penal model for political repression was along similar lines also achieved through special legislation, with the 1935 law being its main element. To explain this transformation, we must outline in general terms the Brazilian experience of this double level of legality and of political crimes in our history of criminal law. This is considered here in two stages: first, the Imperial experience and the relationship between rebellion and slavery; and then the First Republic, when Brazilian law came to differentiate political and social crimes, because of the rise of anarchist ideas within trade unions in cities such as Rio de Janeiro and São Paulo.

A.  The Imperial Experience, 1822–89: Slavery The 1830 Imperial Criminal Code – the first in Brazilian legal history, promulgated eight years after the country’s independence from Portugal – and the 1890 Republican Penal Code – promulgated one year after the Proclamation of the Republic – did not differ 15 Note, eg, the ‘classical’ view of Carrara in F Carrara, Programma del corso di diritto criminale, vol VII (Lucca, Tipografia Giusti, 1871) 619–38; and F Carrara, Programma del corso di diritto criminale, Parte Speciale, vol VII, 6th edn (Firenze, Fratelli Cammelli, 1898) 657–76; and the ‘positivist’ interpretation of Cesare Lombroso regarding anarchists and communists, C Lombroso, Gli anarchici (Roma, Napoleone [1894] 1972). Note also M Sbriccoli, ‘La penalistica civile’ [1990]; ‘Dissenso politico e diritto penale in Italia tra Otto e novecento’ [1973]; and ‘Caratteri originari e tratti permanenti del sistema penale italiano (1860–1990)’ [1998] all in M Sbriccoli, Storia del diritto penale e della giustizia: scritti editi e inedita (1972–2007) (Milano, Giuffrè, 2009). 16 F Colao, L Lacchè, C Storti and C Valsecchi (eds), Perpetue appendici e codicilli alle leggi italiane. Le circolari ministeriali, il potere regolamentare e la politica del diritto in Italia tra Otto e Novecento (Macerata, EUM, 2011).

326  Diego Nunes and Ricardo Sontag radically in their contents, although their political forms were very different. Both codes concentrated their norms on political crimes in the first chapter of Book II on Specific Offences. Those crimes were organised in descending order of severity. First, they covered serious threats against the existence of the state, the Constitution and the emperor (Title I, Chapters I–III, Book II). Subsequently, they covered crimes that do not threaten institutions but the organisation of established powers (moderator,17 executive, legislative and judiciary – Title II, Book II), including crimes against citizens’ civil rights regarding the state, such as electoral crimes (Articles 100–02, under Title III, Book II). Lastly, there were crimes related to traditional political rebellions (Title IV, Chapters I–IV, Book  II) and crimes against the administration of justice.18 Within a system of classification proposed by an important commentator on the 1830 Criminal Code (Thomaz Alves Jr),19­ articles  68–69 and  85–112 cover political crimes, a notion that excluded international crimes against the state (such as war crimes and piracy: articles 70–84), crimes against the public administration (including resistance and disobedience: articles 116–28), and slaves’ crimes (insurrection: articles 113–15). At the time there were also statutes with a political connotation, outside the 1830 ­Criminal Code. An example is the horrenda exceptio, an Act promulgated on 10 June 183520 providing ‘penalties for punishing slaves who kill, injure or commit any other form of physical offence against their masters’. This was an Act with a political connotation because of the owner’s power over the slave, which was an issue in close connection with the maintenance of the social and political order as a whole. However, jurists at the time did not consider those crimes to be part of the same category as the Code’s political crimes, but instead listed them as public crimes (titles I, II, III and IV, Book II). Those crimes were exceptional cases of two ‘particular crimes’ (crimes particulares), namely homicide and injuries (Articles 192–95 and Articles 201–06). Such criminal slaves were considered a danger to the social and political order but were not understood as political criminals. For instance, Thomaz Alves Jr did not classify slave insurrection and the crimes typified in the 1835 Act as political crimes – more precisely, they were deemed to be unclassifiable because both were connected to a contingency, the transient ‘slavery fact’.21 Even if not related to a political crime in the strict sense (slavery was a political problem in the general sense), this can be interpreted as a manifestation of a double level of legality, right at the inception of the modern Brazilian criminal system.

17 Inspired by Benjamin Constant’s ‘Pouvoir Neutre’: see B Constant, ‘Principes de politique applicables à tous les gouvernements représentatifs et particulièrement à la Constitution actuelle de la France [1815]’ in M Gauchet (ed), B Constant: Écrits politiques (Paris, Gallimard, 1997). The office of Moderator is one of the few known examples related to this concept. See C Schmitt, O Guardião da Constituição [Der Hüter der Verfassung] (Belo Horizonte, Del Rey, 2007) 195. 18 Included within Title IV, but since its inception Penal Code commentators have doubted whether these crimes had a political character. 19 Th Alves Jr, Annotações theoricas e praticas ao código criminal II (Rio de Janeiro, Francisco Luiz Pinto e Compª, 1870) 14, 17. 20 Regarding the passing and enforcement of this Act, see JL Ribeiro, ‘No Meio das Galinhas as Baratas Não Tem Razão’: a Lei de 10 de Junho de 1935: os Escravos e a Pena de Morte no Império do Brasil 1822–1889 (Rio de Janeiro, Renovar, 2005). 21 Alves Jr (n 19) 25, 311. The use of the word ‘fact’ connected to ‘slavery’ has a critical tone within Alves Jr’s discourse. See further R Sontag, ‘“Curar Todas as Moléstias com um Único Medicamento”: Os Juristas e a Pena de Prisão no Brasil (1830–1890)’ (2016) 471 Revista do Instituto Histórico e Geográfico Brasileiro 56.

The Restless National Security Acts  327

B.  The First Republic Experience, 1890–1930: Anarchists Both codes, from 1830 and 1890, embraced a liberal paradigm of political crime, but that does not mean they only specified mild punishments. In fact, the differences between paradigms of political crime are not only quantitative in the sense of the amount or severity of punishment (mild or harsh). An example of this is the crime of rebellion provided in the 1830 Criminal Code (article 110), which later scholarship would identify as corresponding to article 109 of the 1890 Penal Code22 within the chapter on ‘crimes against the free exercise of political powers’ (crimes contra o livre exercicio dos poderes politicos). Despite being present in both, the word ‘rebellion’ was interpreted differently in the Imperial and Republican penal codes: during the Empire, rebellion was a crime committed only by slaves and punished harshly, whereas in the Republic rebellion became a stricto sensu political crime, whose corresponding punishments were mild in comparison to those prescribed by the old Code. Scholarship, during both the Empire23 and the First Republic,24 remarked on the one hand that some of the threats against the adopted model of political order were very serious. Yet, on the other hand it also remarked – and this is our point here – that political crimes have a virtuous character.25 Nevertheless, legal provisions covering such crimes experienced important changes during that period: between 1890 and 1930 (the First Republic) several statutes with an undeniable political connotation were passed, including for example decree no 4269 of 7 January 1921 against anarchists,26 which created in Brazilian law the same distinction between political and social crimes that was already recognised in Europe.27 According to jurist Galdino Siqueira, ‘the punishment to be imposed by our courts will not always correspond to the severity of the crime, [if the latter is] clearly social’, even if it is ‘committed by more dangerous agents’.28 In other words, a traditional political criminal was still regarded as virtuous, but an anarchist was not. A few documents presented dogmatic analyses of the Brazilian legislation against anarchism. One example is the ‘General Report’ (Relatório Geral) presented by Brazilian Federal Supreme Court judge João M de Carvalho Mourão at the ‘Penal Law Panel’ of the ‘1923 Law Conference’.29 In this document his main objective was to consider whether or not ‘the legislative decree no 4269 of 1921 on the repression of anarchism satisfies public order requirements regarding incitement to crime, and associations whose purposes are to encourage crimes or commit them’.30 Concerning these two main points, according to 22 G Siqueira, Direito penal brasileiro II (Rio de Janeiro, Jacyntho, 1932) 70. 23 Alves Jr (n 19) 17–18. 24 Siqueira, Direito penal brasileiro II (n 22) 17. 25 On the liberal concept of political crime in Brazil and different concepts of political crime among the Brazilian jurists, see Nunes (n 2) 27–43; and RR Sirotti, ‘Os crimes politicos na doutrina penal brasileira da Primeira República (1889–1930)’ (2017) Revista Brasileira de Ciências Criminais 131. 26 Decree no 4269, of 17 January 1921, Rio de Janeiro (Regulating the Repression of Anarchism), available at: www.planalto.gov.br/ccivil_03/decreto/1930-1949/D22213.htm. 27 A De Benedictis and K Härter, Revolten und politische Verbrechen zwischen dem 12. und 19. Jahrhundert. ­Rechtliche Reaktionen und juristisch-politische Diskurse / Revolts and Political Crime from the 12th to the 19th Century. Legal Responses and Juridical-Political Discourses (Frankfurt am Main, V Klostermann, 2013). 28 Siqueira, Direito penal brasileiro II (n 22) 133. 29 JM de Carvalho Mourão, ‘Congresso Juridico – Secção de Direito Penal – Relatorio Geral Chronica’ (1923) 40 Revista Forense 235, 240. 30 ibid 39.

328  Diego Nunes and Ricardo Sontag Mourão’s brief analysis, the legislator imposed inappropriate restrictions. In his opinion law should repress not only classic anarchist attacks but also other severe crimes, and in order to do so the legislation should present wider legal formulae. Despite the important changes introduced by those statutes and decrees, they did not significantly alter the liberal interpretation of political criminals, because crimes committed by anarchists were considered something else, namely ‘social crimes’. Within this theory, ‘social crime’ was committed not against a specific political form, but against any human order. ‘Social criminals’ were communes hostes omnium (common enemies to all), while ‘political criminals’, although mistaken, were deemed to act with altruistic purposes. Due to these differences, ‘social criminals’ could not receive the same benefits provided to political criminals, such as the custodia honesta, a special form of detention or confinement different from the usual penitentiary regime.31 The very fact that political crimes were inscribed in a code and social crimes in individual statutes, outside the Code, may have helped to strengthen this distinction. Furthermore, because in the imaginary of the period anarchists and immigrant workers were connected, a part of the political repression was put into effect through extra-penal tools, such as the expulsion of foreigners.32 Anarchists were treated differently. Their crimes were considered a threat against the social and political order, and therefore their political connotation was very salient. However, it became necessary to create a new category for them, because political criminals in general were still seen as virtuous.33 The Penal Consolidation, elaborated by Vicente Piragibe and passed in 1932, included in the 1890 Penal Code all extra-code penal statutes in force at that time.34 It is informative to note where the dispositions of the 1921 Act against anarchists (‘social criminals’) were inserted. Despite the scholarly distinction between political crimes and social crimes we have mentioned, several similarities linked these two types of crime. Thus, several dispositions of the 1921 Act were inserted as subdivisions of an article of the Penal Code (article 108), criminalising attempts to ‘amend any article of the Constitution’. The two types of crime were side by side within the Consolidation, but there was a clear difference between the treatments assigned by the liberal conceptions to political criminals, and those assigned to social criminals (enemies of any collective order). Legal scholarship seldom mentioned this issue after 1932. Although according to Franco, anarchist crimes were transformed into political crimes, such as insurrection (articles 107–08).35 31 See further F Colao, ‘Il principio di legalità nell’Italia di fine Ottocento tra “giustizia penale eccezionale” e “repressione necessaria e legale … nel senso più retto e saviamente giuridico, il che vuol dire anche nel senso più liberale”’ (2007) 36 Quaderni fiorentini per la storia del pensiero giuridico moderno 721; and R Bach Jensen, ‘The International Campaign against Anarchist Terrorism, 1880s–1930s’ (2009) 21 Terrorism and Political Violence 99. 32 On the expulsion of foreigners, see Nunes (n 2) 60–74. 33 On the repression of anarchism in general, see Nunes, ibid 44–60. For an account from the perspective of constitutional history, see MP Guerra, Anarquistas, trabalhadores, estrangeiros: o constitucionalismo brasileiro na Primeira República (Curitiba, Editora Prismas, 2015). Within the liberal paradigm, when analysing legal discourse during the First Brazilian Republic, Sirotti (n 25) 292, has pointed to the tension between the defence of the state and the virtuous conception of political criminal. Sirotti also concluded that the concept of political crimes at the time restricted the application of benefits to political criminals, limiting them almost exclusively to dissent that reinforced republican and liberal ideals. 34 V Piragibe, ‘Consolidação das leis penaes: approvada e adaptada pelo decr n 22213 de 14 dezembro de 1932. Codigo penal brasileiro, completado com as leis modificadora em vigor’ (Rio de Janeiro, Jornal do Commercio, 1933). 35 AA Franco, Direito penal. Apontamentos de um curso (Rio de Janeiro, Typ e Lith Almeida Marques & C, 1934) 60.

The Restless National Security Acts  329

C.  The First Period Under Getúlio Vargas, 1930–36: Communists The repression of political divergence, during the Vargas regime, presented a new tone in comparison with the First Republic (1889–1930). In contrast to a diffuse criminality whose political character was denied by the legal system, such as anarchist ‘social crimes’, the Brazilian government began to fight organised political movements, considering their actions as political crimes. On the Left of the political spectrum, a broad front called the Aliança Nacional Libertadora (ANL, National Liberation Front) embraced communists, whose political party had been made illegal, part of the military that opposed Vargas (successors of the Tenentista Movement), and other liberal objectors against the regime. On the Right of it, the Ação Integralista Brasileira (AIB, Brazilian Integralist Action), founded in 1932, consisted of a radical paramilitary organisation inspired by Nazi fascism. Progressively both political movements and organisations came to be regarded as essentially wicked, instead of simply bad choices made by well-intentioned people: first the ANL in 1935, and after the AIB in 1938. The background of law was starting to change, as well as the concept of political criminal. Immediately after the ANL’s foundation in 1935, the government proposed a new bill defining political crimes. During its long debate in Congress and in public opinion, this bill became known as the Lei de Segurança Nacional (LSN, National Security Act), and as the lei monstro (monstrous Act) by those who opposed it. The result of that debate was National Security Act no 38 of 4 April 1935, which defined ‘crimes against the social and political order’. In spite of constitutional provisions that were supposed to protect freedom of thought (Article 113, §9, 1934 Constitution),36 this Act provided open definitions of crimes and reduced procedural and penal guarantees, while also containing special provisions that made the application of criminal law more stringent in the persecution of political enemies. The fact that some of its dispositions provided gentler penalties, in comparison with the 1890 Penal Code, is not enough to establish how stringent the new legislation was. The key point is the flexibility of its applicability – the same strategy used in the 1921 decree on the repression of anarchism, discussed above – which widened its possible uses. Although under this new law the government was not always able to punish harshly, it was able to punish larger numbers of dissenters. With regard to terminology, it is important to note that the 1934 Constitution linked the expression ‘national security’ especially to military issues, and therefore not to criminal law. Thus, the use of this expression to name LSN Act no 38 of 4 April 1935 shows that, to some extent, the repression of political criminals came to be seen as a matter of internal war. This was a significant shift in discourse identifiable in other authoritarian and fascist regimes, and was evident in Fascist Italy for example in Alfredo Rocco’s ‘Relazione al re’ of 1930 (his ‘address to the King’ presenting the new Penal Code).37 The 1935 LSN did not, however, receive much attention from legal scholarship. Among the rare books and articles concerning this issue, the speeches delivered by the famous jurist, 36 Constitution of the United States of Brazil, 16 July 1934, Rio de Janeiro, available at: www.planalto.gov.br/ ccivil_03/constituicao/constituicao34.htm. 37 A Rocco, ‘Relazione del Guardasigilli’ in Ministero della Giustizia e degli Affari di culto, Lavori preparatori del Codice penale e del Codice di procedura penale: Progetto definitivo di un nuovo Codice penale con la relazione del Guardasigilli On. Alfredo Rocco: Relazione sui Libri 2 e 3 del Progetto, vol II (Roma, Tipografia delle Mantellate, 1929).

330  Diego Nunes and Ricardo Sontag Nélson Hungria are particularly significant. In partnership with Roberto Lyra, in 1936 he published his book Compêndio de direito penal, containing a section on general provisions, written by Lyra, and a section on specific offences, that he wrote himself. In this book he classified the 1935 LSN as ‘reactionary’, and his criticism echoed the European scholarship sustaining that the rise of authoritarian and totalitarian regimes represented a setback for civilisation. Criticising Italian jurist Alfredo De Marsico, Hungria eloquently stated that: Criminal law must not be transformed into a scaffold supporting tyranny against individual rights and political freedoms. De Marsico lied to the youth of his country in order to venerate … an impudent dictator. What is currently taking place in Italy is nothing but the local eclipse of democracy, sponsoring the consolidation of Mussolini’s power. Nevertheless, we should be certain that, in the land of Beccaria, in the near future criminal law shall recover from the disruption of its evolution and be restored to the path of legal civilisation.38

Hungria also argued the state should possess instruments to protect itself against ­‘Bakunin’s brutal disciples’ and ‘Moscow’s eye’, to the Left; and against the ‘mystical sigma of native integralism’ (mystico sigma do integralismo indigena), to the Right.39 It is not the case that Hungria completely disagreed with left-wing criticism of the 1935 LSN, stating that ‘the devil is not so ugly as he is depicted to be’.40 Moreover, in Hungria’s opinion ‘the contemporary legislator does not distinguish between anarchist terrorist propaganda, and the simple admiration and diffusion of partisan or sectarian ideas, whose final aims depend on revolutionary or violent processes against the State’.41 Thus, Hungria was among the jurists of the day who relativised the distinction between social and political crimes, considering the concepts of social and political orders to be part of a single class of ‘political-social crimes’. As in the period we covered in the previous part of this chapter, during the first period of Getúlio Vargas’s rule, we can still identify a double level of legality regarding political crimes. Analysing Brazilian parliamentary proceedings, we often encounter references to foreign regulations on this kind of issue. At the time, the debate focused mostly on the Italian response – which concentrated provisions relating to political crimes in a code (the 1930 Rocco Penal Code) – or the German alternative,42 which preserved political crimes in statutes outside the Code. Even though German legislation dispersed political crimes across different Acts, as in Brazil, it also presented unique features: the Nazi regime did not create a new penal code and kept political crimes within the old 1871 Penal Code (occasionally modified by the regime).43 The first important application of the 1935 National Security Act was the temporary suspension of ANL by a presidential decree. This is representative of a constant practice of Vargas’s repression (and a distinctive feature of the punishment of anarchists during the First Republic): the use of administrative law instruments, which are more flexible, for punishment purposes. It allowed the regime to circumvent strict interpretations of criminal law statutes, even those dictating low levels of legal guarantees, such as the 1935 LSN.

38 N

Hungria, Compêndio de direito penal (parte especial) (Rio de Janeiro, Livraria Jacyntho, 1936) 31. 65. 40 ibid 66. 41 ibid 65. 42 See further T Vormbaum, Diritto e nazionalismo. Due lezioni (Macerata, EUM, 2013) 35–37. 43 See further Nunes (n 2) 77–119. 39 ibid

The Restless National Security Acts  331 With the ANL closed, the Communist Party lost its main diffusion channel, which forced it to choose between reorganising itself and planning a revolution. With Comintern support (men, weapons and intelligence), in late November 1935 the Party initiated rebellions in military bases in Natal, Recife and Rio de Janeiro. The military result was disastrous, and by the end of the rebellion those in charge of LSN’s reform had made it stricter and more effective. The purpose of Act no 136 of 1935, passed after only a week of debate, was to punish military and public servants involved in the communist revolt. As it made it easier to dismiss civilians and military servants, the Act allowed the Administration to purge any opposition inside the government. Furthermore, procedures such as the expulsion of foreigners became more flexible. Commenting on this reform, Hungria criticised the political manipulation of law in response to a fear created by the government itself: The Act no 136 of 14 December 1935, promptly approved in a context of alarm generated by a communist revolt (which was presumed to be a symptom of a larger diffusion of Marxist ideology among us, but which was shown afterwards to be an adventure of a small number of restless and hasty individuals who, to win power, would brandish any kind of revolutionary idea), modified a number of Security Act norms in order to inspire fear of a harsher penal reaction, and delineated new patterns of crimes against the political and social order.44

Nevertheless, for the government it was not enough to increase repression in abstracto. It wanted to achieve a faster, more incisive and above all more visible system of political justice. Over the years, the proposals aimed at modifying the 1890 Penal Code presented different conceptions of political crimes. During the last decade of the nineteenth century and the first decade of the twentieth century, the jurist and member of the Chamber of Deputies, João Vieira de Araújo, was very active in drafting proposals for the new republican legislation. In a draft code presented in 1893, he named the first section of the book on Specific Offences ‘On political crimes’,45 choosing this generic expression in reference to the 1891 Republican Federal Constitution.46 In contrast, his draft code was innovative in that it renamed the crime of ‘rebellion’ as ‘insurrection’, a term used in Imperial times to refer to slaves’ actions to gain freedom.47 Commenting on a report on his draft, Araújo48 explained that he named that section ‘political crimes’ in order to give it a wide content, including electoral crimes and piracy. In 1896 and 1899 other laws modified the section of the Code on general provisions but did not alter substantially its chapter on political crimes, retaining the divisions of Title I of the second book on Specific Offences (Sections I–IV and Title II, Chapter I).49

44 Hungria, Compêndio de direito penal (n 38) 76–77. 45 See Sirotti (n 25) 279; and Nunes (n 2) 38. 46 JV de Araujo, ‘Projecto de codigo penal: exposição de motivos’ (1893) 3 Revista acadêmica da Faculdade de Direito do Recife 55, 68–69. 47 ibid 70. 48 JV de Araujo, O projeto do codigo penal e a faculdade de S Paulo (Recife, Pantheon das Artes, 1895) 29. 49 Annaes da Camara dos Deputados, vol VII – sessões de 3 a 30 de novembro de 1896 (Rio de Janeiro, Imprensa Nacional, 1896) 220 and 230. The only amendment they produced concerned a reduction in the number of e­lectoral crimes (chapter II) in the 1896 and 1899 drafts, probably inspired by Act no 35 of 26 January 1892.

332  Diego Nunes and Ricardo Sontag After Vieira de Araújo’s proposals, others tried to establish a new penal code in Brazil. According to Siqueira in his 1913 draft, the difference between political crimes stricto sensu and social crimes should be clearly stated, because in anarchist social crimes ‘the character of relativity, so peculiar to political crimes, is not perceived’.50 On the other hand, Sá Pereira’s 1927 draft for a new penal code adopted the nomenclature ‘political-social crimes’, defining it in the draft’s general provisions section (article 25). While this project homologised social and political crimes, it also refused to consider any collective personal motivation, highlighting its supposed altruistic character in the preamble. Within this preamble, written in 1930, Sá Pereira disagreed with Carrara’s above-noted argument (explicitly quoting him), because if on the one hand political crime is not as stable as common crime, on the other hand state and sovereignty are permanent and long-standing structures, and therefore require an appropriate criminalisation of acts offending them.51 Both Siqueira’s and Sá Pereira’s draft codes adopted a progressive scale, covering crimes against individuals, in the beginning, to political crimes at the end. However, the rise of the Estado Novo would produce notable changes in the planning of penal reform, and on national security legislation.

Double Levels of Legality and Political Crimes (1936–40) In the second phase of the Vargas regime, the government established a special court – the National Security Tribunal (Act no 244 of 11 September 1936) – to judge political crimes during the ‘internecine commotion’, supported by an état de siège decreed by the Senate, which produced the typical legal effects of a state of war. This last change represents another step towards a different paradigm of political crime. It was considered essential to keep the ‘red danger’ alive, as a means to legitimise increasing government power, and as a consequence the état de siège was repeatedly reviewed and renewed between 1936 and 1937. The Estado Novo coup in November 1937 was not exactly a break from the previous period, but the consolidation of a patiently constructed authoritarian and repressive apparatus. Therefore, according to the Minister of Justice, Francisco Campos,52 the 1930 Revolution process ended only in 1937. A few weeks after the forced introduction of a new constitution in November 1937, legislative activity turned its attention towards political concerns. The guidelines for this activity had been drafted during the previous years (1935–36), but with the establishment of the National Security Tribunal and its transformation into a permanent court by the Estado Novo regime, a parallel and well-structured apparatus was consolidated to fight the enemies of the state.

50 Siqueira, Projecto de codigo penal brazileiro (n 3) 128. 51 V de Sá Pereira, Projecto de codigo penal brasileiro (Rio de Janeiro, Imprensa Nacional, 1930) 59. 52 F Campos, O Estado Nacional: Sua Estrutura, Seu Conteúdo Ideológico (Brasília, Senado Federal, [1940] 2001) 41.

The Restless National Security Acts  333

A.  New Special Criminal Laws for a New Regime, 1937–39: The Consolidation of Contingency in National Security With the dissolution of Congress, political parties received special attention. Decree no 37 of 2 December 1937 imposed the extinction of all political parties, making their political activity illegal. According to the Estado Novo’s conceptions, the intermediation between government and people by political parties was not necessary. This was the first step towards changing the relationship between ideology and criminal law: it permitted the criminalisation of all dissent, not only that considered to be left wing. In our view the decree replacing the 1935 LSN produced even more interesting changes. The first aim of decree no 431 of 18 May 1938 (1938 LSN) was to provide a direct response to the Integralista’s revolt, which had occurred during the previous week. Dissatisfaction with recent political developments had inflamed right-wing military and Integralista militiamen, who stormed the President’s official residence and kept Vargas and his family under arrest. The rebels were overthrown and the rebellion, known as the Integralista Putsch, was dissolved. From that moment, the political offensive also directed its efforts against the right wing. The 1938 LSN reorganised the full system of political crimes. However, if due to its severity and temporal coincidence it is often considered a response to the Putsch, it is hard to believe that the system’s full reorganisation could be completed so promptly. Indeed, the new decree coordinated and changed the dispositions from the revoked Acts no 38 and no 136 of 1935, and it is possible to deduce that its introduction had long been planned but was boosted by political events. The new dispositions that the 1938 LSN introduced gave open definitions to a number of crimes, suppressed the mitigation of punishment and increased penalties beyond what had been done in 1935. The main point of the new LSN was the application of capital punishment to several political crimes. In Hungria’s opinion (slightly contradictory with his criticism of authoritarian manipulations of law, as we noted above regarding his 1936 Compêndio and to which we will return later), this modification was perfectly coherent with the new regime: The main task of Estado Novo’s major criminal statute is to protect the State’s interests, which are also interests of the whole society and of the individual as part of the whole society … Thus, it removed the barrier created by liberal tradition, between political crimes and other crimes. It was necessary to abolish the liberal superstition that revolution is an implicit individual right, and Estado Novo did not retreat even facing the extrema ratio: death penalty against armed rebels. Benefits to political criminals were revoked; they will not be given privileged penalties anymore; the custódia honesta was abolished; a special court was established, and it contained procedural rules distinct from ‘ordinary justice’, in order to ensure prompt, harsh and inexorable punishment for political crimes.53

In general, the reform of national security legislation was a crucial step towards the harmonisation of penal law and the consolidation of the new political regime (the Estado Novo). In summary, the 1938 LSN’s authoritarian character was very clear: it served to consolidate a parallel repression system against political dissent; it was the reflex of a strong state, which

53 N

Hungria, ‘O Direito Penal no Estado Novo’ (September 1941) Revista Forense 268.

334  Diego Nunes and Ricardo Sontag should protect the nation from ‘exogenous’ and dangerous doctrines, constituted mainly by Communism and Integralism. Once again, few jurists commented on the new LSN decree. Two of them were involved with the National Security Tribunal, the competent court to judge this type of crime. Eurico Castello Branco, secretary to the National Security Tribunal, wrote the first book on the 1938 LSN. His Anotações às leis de segurança e economia popular54 were nothing but quotations from Hungria’s Compêndio and judgments of the National Security Tribunal mentioning legal dispositions. Branco55 was aware of the simplicity of his work, but his purpose was to disseminate the legislation and the Court’s opinions. Raul Machado, a National Security Tribunal judge, wrote what at the time was the only monograph on the 1938 LSN, whose purpose was to legitimise on scientific grounds the Court’s decisions. In his opinion the 1938 LSN was not original, since its content was present in the statutes and codes of other democratic countries.56 Lists of similar ­European legislation accompanied his analyses of each article, but it is interesting to note the absence of references to authoritarian or totalitarian states. Regarding Italy, for instance, he frequently mentioned the 1889 Penal Code, instead of the 1930 Fascist Penal Code. For him, the fact that several dispositions were enacted by authoritarian or totalitarian regimes was not relevant, because none of them were different from liberal governments’ ­legislation.57 Thus, in Machado’s peculiar approach there were no relevant differences between the chapters on political crimes of the 1889 Italian Penal Code and the 1930 Fascist Penal Code. This literature about the 1938 LSN, produced by agents of the regime, also had its ­exceptions. Most notably, José de Magalhães Drummond authored the last volume of the first edition of the famous Comentários ao Código Penal,58 whose main author was Hungria. Nowadays this is a rare edition, because a volume written by Hungria himself replaced it a few years later.59 It is interesting to note that unlike Machado’s and Branco’s books, Drummond’s was never quoted in National Security Tribunal trials. In fact, Drummond’s analysis of the new legislation was not too kind to Vargas’s regime, noting for example that ‘the distinctive character of the National Security Decree comes to light as one reads its first dispositions, which indicate its sphere of application and accentuate the harshness of its punishments’.60 In contrast to Machado, who had tried to legitimise comparatively the Brazilian National Security Act, Drummond also expressed his opinion that the National Security legislation had not simply copied foreign legislations.61 The strengths of the LSN were underlined by Minister of Justice Francisco Campos, who said that the National Security legislation, the procedural law statute regarding crimes against the political order, and the reform of the competent Court constitute a system whose precision and justice have been proved with excellent results … We could say the problem regarding order does not prevent any good initiatives in the country, as a result of an excellent repressive apparatus – with

54 EC

Branco, Anotações às leis de segurança e economia popular (Rio de Janeiro, Livraria Jacyntho, 1940). 5. 56 R Machado, Delitos Contra a Ordem Política e Social (São Paulo, 1944) 12. 57 ibid 131. 58 J de M Drummond, Comentários ao Código Penal, vol IX (Rio de Janeiro, Forense, 1944). 59 Hungria, Comentários ao Código Penal (n 8). 60 Drummond (n 58) 425. 61 ibid. 55 ibid

The Restless National Security Acts  335 no excesses and no weakness. Crimes against the State are punished rapidly, with serenity, and in a non-partisan way. The times when this type of process would extend for three, five or even ten years, now seem long gone!62

In conclusion, the 1938 LSN prompted a notable change in Brazilian legislation on political crimes. A parallel system, outside the Penal Code, was a strategic move for the government. All political ideologies could be criminalised: this non-partisan approach made it possible to punish all dissidence against Vargas, even ex-allies, such as the AIB.

B.  The Penal Code, 1939–43: Discourses on Stability in Politics and Scholarship Up to this point we have highlighted the construction of a system of repression outside the Brazilian Penal Code, within a process of rupture with the liberal paradigm regarding political crimes. We turn now to show that during the same period several draft codes were prepared, which were intended to replace the 1890 Penal Code. As we previously mentioned, all these drafts contained a chapter on political crimes. In the penultimate of these draft codes, prepared by a commission chaired by Virgílio de Sá Pereira and discussed in Congress between 1927 and 1937, the chapter on political crimes was the last one in its section on ‘specific offences’. This structure symbolically assigned pre-eminence to the protection of individual legal interests and maintained the conception of the altruistic character of political crimes. However, this draft was abandoned immediately after the Estado Novo’s coup. Following that event, in 1938 Campos invited Professor José d’Alcântara Machado to prepare a new draft code. In 1932 Machado had taken part in the paulistas rebellion against the regime established in 1930 by Vargas, and therefore his invitation is as surprising as his posture of alignment with the Estado Novo dictatorship while preparing the new draft code. Such alignment is quite perceptible in regard to political crimes: for example, the inclusion of the chapter on such crimes at the beginning of the section on ‘specific offences’, and the prescription of capital punishment for them.63 In Machado’s opinion, the new chapter on political crimes merely complemented the system recently created, which provided for special punishments, courts and processes. According to Machado, ‘a Code, inherently, is a statute that must persist. It is impossible to make it under momentary [political] contingences or impositions’,64 but there are crimes against the state that must be regulated within the Code. With regard to the death penalty, even though he disagreed with this category of punishment, he admitted having added it to his draft code as ‘a solution in accordance with the requirements of governability’, and justified having done so (as did Jorge Coll and Eusebio Gomez in the draft Argentinian Penal Code of 1939)65 ‘in case the government would want to use the power conferred’ to it by 62 Campos (n 52) 119. 63 Concerning the relationships between the Estado Novo, Alcântara Machado’s draft and the final version of the Penal Code, see M de M Silveira, Revistas em tempos de reformas: pensamento jurídico, legislação e política nas páginas dos periódicos de direito (1936–1943) (Belo Horizonte, Universidade Federal de Minas Gerais, 2013) 286–92. 64 J de A Machado, ‘O projeto do código criminal perante a crítica’ (November 1939) Revista Forense 65. 65 JE Coll and E Gómez, ‘Projeto de Código Penal para a Argentina’ (July 1939) Revista Forense 13.

336  Diego Nunes and Ricardo Sontag the 1937 Constitution.66 There was thus a tension between Machado’s own legal opinions and his project for a new penal code, and possibly he cast aside his own scientific views in recognition of the political dimension of statutory law. Also, the contradiction between his legal opinion on the death penalty and the contents of his draft code might suggest the dissolution of a fundamental civic commitment of nineteenth-century legal discourse, as pointed out by Sbriccoli67 in regard to Italian criminal science. JA Correa de Araújo, a jurist sympathetic to the ideas of the scuola positiva, or positivist school of criminology, approved of the inclusion of capital punishment in Machado’s project. In his opinion, scientific studies could identify incorrigible criminals, for whom the death penalty was nothing but appropriate. Also, Araújo68 argued that the application of the death penalty to political criminals was increasingly possible in countries ‘that adopted authoritarian governments, such as Hitler’s Germany or Fascist Italy’, and according to him its presence in Machado’s draft for a new penal code responded to the Estado Novo’s demands. In 1938 Machado’s draft was reviewed by a commission, and on 7 December 1940 passed into law by a decree, effectively creating the new Brazilian Penal Code. A month before, Hungria, a member of its reviewing commission, had presented a lecture entitled ‘The Estado Novo’s Criminal Law’. Its audience wanted to learn first-hand about the Penal Code that was soon to be decreed. Hungria started his lecture by declaring: ‘I am here to speak about the criminal law of the Brazilian Estado Novo, of which one of the most important innovations is the prevalence of collective interests, when they conflict with the requirements of individual freedom’.69 As we previously mentioned, in this lecture Hungria adopted a different tone from that of his preceding addresses. Due to his former opinion on the distortions inflicted upon criminal law by European totalitarian regimes (particularly those of Germany, Italy and the Soviet Union), and particularly in terms of the regulation of political crimes, he knew this new attitude would astonish his audience: ‘By defending or justifying this new legal-political standard, my words might surprise because I am a mineiro, and every mineiro has drunk from freedom’s milk until it dripped from his mouth’.70 He alluded to freedom as an essential trait of the perceived identity of mineiros, those from the state of Minas Gerais, whose ‘mythical’ origins were deeply influenced by a famous political rebellion (the Minas Gerais Conspiracy, Inconfidência Mineira) against the Portuguese. In that regard, one should not forget that Campos – known as the chief author of the Estado Novo’s 1937 authoritarian Constitution and of Ato Institucional no 1, the first Act of the military dictatorship that controlled the Brazilian government from 1964 – was also a mineiro. According to Hungria,71 ‘The Estado Novo’s first imprint on the criminal legislation was its emphasis on the repression of political crime’, that is, the proscription of any benevolence towards political criminals, including bringing back capital punishment for these 66 Machado, Projeto do Código Criminal Brasileiro (n 3) 25. 67 M Sbriccoli, ‘La Penalistica civile’ in M Sbriccoli, Storia del diritto penale e della giustizia: scritti editi e inediti (1972–2007), vol I (Milano, Giuffrè, 2009) 491–588. 68 JAC de Araújo, ‘A pena de morte no ante-projecto de Código Penal Brasileiro’ (September 1940) Revista Forense 342. 69 Hungria, ‘O Direito Penal no Estado Novo’ (n 53) 265. 70 ibid. 71 ibid 267.

The Restless National Security Acts  337 ­ ffenders against the state, the institution that embodied all collective interests. Hungria72 o always held a position against any ‘right of revolution’, but defending ‘maximum severity’ against political crimes was a clear change of direction in comparison with his former opinions, including his criticism of the death penalty in light of European totalitarian practices, noted above. Hungria’s apparent change of mind, however, might also be interpreted as another manifestation of the technicist approach to legal science he had previously advocated.73 In criminal-legal technicism the jurist’s main task is to analyse systematically and pragmatically the current positive law, in order to bring to light (or construct) its internal logic, but refrain from criticising the political options of lawmakers. The construction of this internal logic must also integrate the underlying elements of law, one of which is the political form of the state. For this reason, Hungria’s new-found opinions on the Estado Novo’s criminal law could also reflect the technicist quest for an internal logic connecting a given form of state and government and its criminal law. Indeed Hungria stated that ‘criminal law is not a purely scientific construct: the political environment in which it is formed must inspire it’,74 and thus it is possible to propose two types of nexus between Hungria’s legal thought and the Estado Novo’s law: one strictly tied to politics and the politics of law, and the other associated with the methodological background of Hungria’s legal thought which, in fact, is a nexus with any political status quo.75 At the time of his lecture in 1940, Hungria’s emphasis on political crimes was understood as a clue that the soon-to-be passed Penal Code would contain a chapter on them, probably prescribing particularly rigorous penalties. However, that is not what happened and, as the legal community soon learnt, the new Penal Code contained no chapter on political crimes. The statement of purpose (Exposição de Motivos) that opened the draft of the Penal Code is silent about this issue,76 and other documents we might expect from the legislative procedure are in fact non-existent, because of the dissolution of the Brazilian Congress. Two main subjects were excluded from the Code: contraventions (contravenções) and political crimes, but only the first omission was formally justified. A few years earlier Brazilian legal scholarship had debated whether there is an ontological difference between crimes and contraventions. While discussing Machado’s bill, its reviewing commission stressed a quantitative difference between crimes and contraventions, not an ontological one. In its own words, contraventions are ‘so minute, varied and versatile’, and so ‘subject to the demands of momentary opportunities and conveniences’, that ‘their exclusion would free the Penal Code from the transitory contingencies of time, to which the works destined to endure 72 N Hungria, ‘A repressão dos delictos políticos’ (April–June 1934) Revista de Direito Penal 113. 73 On Hungria’s technicism see Sontag, Código e Técnica (n 4) 188–94. See more generally RMR Queiroz, A Modernização do Direito Penal Brasileiro. Sursis, Livramento Condicional e Outras Reformas do Sistema de Penas Clássico no Brasil, 1924–1940 (São Paulo, Quartier Latin, 2007); and Prando (n 4) 168–78. 74 Hungria, ‘O Direito Penal no Estado Novo’ (n 53) 267. 75 This correlates to the European historiographical vexata quaestio on the nexus between technicism and authoritarian and totalitarian regimes. In our opinion, the technicist approach is not in essence authoritarian or totalitarian but does allow for a deflation of the jurist’s civilian commitment, as pointed out by M Sbriccoli, ‘Le Mani nella pasta e gli occhi al cielo. La penalistica italiana negli anni del fascismo’ in M Sbriccoli, Storia del diritto penale e della giustizia: scritti editi e inediti (1972–2007), vol II (Milano, Giuffrè, 2009) 1000–32. 76 Indeed, as pointed out by Silveira, Revistas em tempos de reforma (n 63) 291 the Exposição de motivos in general avoided ‘very explicit references to the political context’ when explaining the Penal Code’s choices.

338  Diego Nunes and Ricardo Sontag must not be subject’.77 A code’s durability constitutes a cornerstone of the modern concept of codification.78 Interestingly, the critical debate that followed the Code’s passing, regarding the absence of political crimes from it, concerned the same issue: contingency versus duration. In the view of jurist Siqueira such a ‘towering issue’ as political crimes should not be left out of a penal code.79 The ‘relativity’ of this type of crime could be dealt with by distinguishing between ‘crimes against the Nation’ and ‘crimes against the government’. The former, protecting the ‘State’s conditions of existence’,80 have the necessary stability to be codified. Therefore, only the second type of political crimes could be objectionable, according to Carrara’s famous argument. In Siqueira’s opinion81 concerning this issue, the 1930 Italian Penal Code was a positive example, using the word ‘totalitarian’ in a sense that was not apparently pejorative and quoting totalitarian jurists’ opinions as arguments of authority.82 In his Tratado de direito penal, Siqueira criticised again the complete absence of contraventions and political crimes from the 1940 Penal Code.83 In his opinion, due to this absence the Brazilian legislation was a ‘labyrinth’ that was overly susceptible to ‘practical demands’ – ‘practical’ probably meaning ‘contingent’. Surprisingly, Machado himself was critical towards the 1940 Penal Code. Despite his death in early April 1941, his critical essay against the new Code was posthumously published in the March/April 1941 issue of the law journal, Direito: doutrina, legislação, jurisprudência. A crucial point in Machado’s criticism was the ‘evident lack of affinity between [the code] and the spirit of the current political regime’.84 Machado enumerated several crimes against the nation that were not criminalised by the Code or by any other statute.85 He also denounced the suppression of a chapter on ‘crimes against the personality of the State’, present in his draft but excluded from the 1940 Penal Code.86 Furthermore, in his opinion there was a clear difference between offences against the National Security legislation, and the chapter on ‘crimes against the personality of the State’ suppressed by the reviewing commission. Machado believed that the National Security legislation dealt with matters of a ‘special nature’, and for this reason cases concerning it should be subject to special procedural rules and be heard by ‘a special justice’ (the National Security Tribunal).87 For this reason, he argued that the suppression of his chapter on political crimes would leave an important category of crimes without punishment, such as ‘vilification of the national flag (vilipêndio à bandeira nacional)’.88 77 Campos (n 52) 212. 78 P Cappellini, ‘La Forma-Codice e i Suoi Destinatari; Morfologie e Metamorfosi di un Paradigma della ­Modernità’ in P Cappellini and B Sordi (eds), Codici: una Riflessione di Fine Milennio (Milano, Giuffrè, 2002). 79 G Siqueira, Código Penal Brazileiro (Rio de Janeiro, Jacyntho, 1941) 60. 80 ibid. 81 ibid 61–63. 82 On the semantic uses of the word ‘totalitarian’, see P Costa, ‘Lo “Stato totalitario”: un campo semantico nella giuspubblicistica del fascismo’ (1999) 28 Quaderni fiorentini per la storia del pensiero giuridico moderno 61. 83 G Siqueira, Tratado de direito penal (Rio de Janeiro, Konfino, 1947) 84. 84 J de A Machado, ‘Para a história da reforma penal brasileira’ (1941) Direito: doutrina, legislação, jurisprudência 1, 20–33. 85 ibid 34. 86 ibid 37–38. 87 ibid 33. 88 ibid 34.

The Restless National Security Acts  339 However, it is also important to analyse the other viewpoint. Hungria wrote an essay in response to Siqueira.89 In this essay, he pointed out that the inclusion of political crimes in the Code would disturb its ‘systematic harmony’.90 According to him, the claims for harsh punishments against political criminals could be better managed by the non-codified ‘special legislation’: Galdino has not praised the Code for not regulating political-social crimes. One could reply with Carrara’s famous argument: ‘whenever politics comes in through the temple door, Justice escapes in horror through the window, returning to heaven’. But this is not the real reason: in our current epoch of nonconformity and spirit of rebellion towards political and social institutions, their penal protection demands a very appropriate legislation, since traditional penal law criteria are depleted. Because the new Code did not comprise political-social crimes, it improved in terms of systemic harmony.91

Thus, the relevant difference was not between the Code, which would reflect stable justice demands, and the legislation outside the Code, which would correspond to contingent political demands. That could be true for Carrara’s argument (liberal), but not for the Estado Novo and for jurists like Hungria or Campos (‘not so liberal’). Even before the Estado Novo period, when Hungria criticised authoritarian tendencies in regard to political crimes (for example, the death penalty in the Fascist legislation) within European legislation, he held the opinion that Carrara’s statements on this issue were ‘clearly exaggerated’, because ‘considering the long-lasting stability … of democratic regimes, one can’t deny a strictly legal basis to political crime’.92 Yet, in a 1943 lecture Hungria surprisingly resorted to the same quotation by Carrara. Explaining the absence of a chapter on political crimes in the 1940 Penal Code, Hungria stated that he and his fellow members of the Code’s reviewing commission had suppressed the whole chapter on political crimes because presently it is incompatible with a stable and long-standing system, and increasingly confirms Carrara’s famous idea: ‘whenever politics comes in through the temple door, Justice escapes through the window, returning to heaven’.93

With this motto, Carrara criticised the political manipulation of penal legislation by so-called liberal governments. Did Hungria’s mention of Carrara’s quotation hide a criticism of Estado Novo’s legislation on political crimes (even though he clearly agreed with most of it)? It is hard to say because the lecture’s purpose was to advocate the Code, arguing it was the best possible solution at the time. It seems simpler to admit that Hungria’s use of Carrara’s excerpt was technicist. In other words, it was probably a reference devoid of its original critical purpose against anti-liberal political repression, and therefore purely formal, concerning only the Code’s architecture. The later appropriation of Carrara’s argument by Hungria in his 1943 lecture played an important part in the construction of a historical memory of Brazilian criminal law. It came to indicate a continuous liberal tradition in Brazilian criminal law, including the 1940 Penal Code. In October 1954, during a celebration of the 1940 Penal Code, jurist Osman Loureiro

89 N

Hungria, ‘O Novo Código Penal’ (October 1941) Revista Forense 281. 275. 91 ibid. 92 Hungria, ‘A repressão dos delictos políticos’ (n 72) 112. 93 N Hungria, ‘Evolução do Direito Penal Brasileiro’ (July 1943) Revista Forense 12. 90 ibid

340  Diego Nunes and Ricardo Sontag fully accepted Hungria’s ‘Carrarian explanation’.94 In Loureiro’s opinion, the absence of provisions on political crimes in the 1940 Penal Code was due to a ‘secret belief ’ in the imminent end of the dictatorial government. According to him, because of a ‘hope for a new dawn’ the Commission decided not to codify a ‘dangerous and harsh legislation whose aim was to facilitate contingent political domination, incompatible with our liberal tradition’.95 It is possible to agree with Loureiro that, looking at the facts almost 10 years after the end of the Estado Novo, this indeed seemed to be the case. Yet this laudatory way of looking at the facts does not take into consideration that, in the original context, non-codified legislation was strategically used as an alternative: parallel legality was already very efficient. Indeed, the flexibility of this parallel system was important even after the passing of the 1940 Penal Code: for example, the creation of new political crimes connected to the Brazilian participation in the Second World War, between 1942 and 1945.96 Moreover, Minister Francisco Campos’s statements show the importance given to the strategic use of the non-codified alternative. In an interview on 28 July 1939, Campos anticipated his position on the placement of political crimes inside or outside the Code.97 Machado’s draft code sought to be consistent with the regime. However, the issue concerning political crimes was precisely among the reasons for submitting it to a review: The complete draft [Alcântara Machado’s draft] was delivered to me in September of the previous year [1938], and it is the best project for a criminal code ever drafted in Brazil. However, I thought it necessary to remove from it all matters concerned with contraventions, and also crimes against the political and social order, and crimes against the popular economy, because they are already regulated by statutes outside the code, and in my opinion, given their eminently political character, these issues should not be inserted into a code concerned with ordinary law.98

The distinction between matters of an ‘eminently political’ nature (more suited to the noncodified special legislation) and ordinary issues (more suited to a code) present similarities with Siqueira’s distinction between stability and contingency. Thus, there was a common background between Siqueira’s and Campos’s discourses, although the latter had reverse rhetorical consequences in comparison with the former: it legitimised the exclusion of political crimes from the Criminal Code. Campos’s declaration is very useful for comprehending the dynamics of the double level of legality during the Estado Novo: With the intention of giving the penal code maximum stability, the commission and I thought it would be better to exclude from it all crimes regulated by special legislation and judged by special courts. Thus, the so-called political-social crimes, whose regulation is subjected to frequent adaptations consistent with the demands of a repression that varies according to the types of aggression, are not going to be a part of the Code, remaining separately regulated. For the same reason, contraventions will not be regulated by the Code, because the frequency with which new dispositions must be created would render the Code’s contraventions list permanently incomplete. The commission is drafting a bill for a ‘Contraventions Act’, which will discipline contraventions

94 O Loureiro, ‘A Reforma Penal no Brasil’ (January–June 1955) Revista Brasileira de Criminologia e Direito Penal 49. 95 ibid. 96 Nunes (n 2) 173, 183. 97 Campos (n 52) 142–43. 98 ibid.

The Restless National Security Acts  341 with a criminal nature. The law must be long-standing, and a code always gains efficiency and prestige with the stability of its text.99

Campos’s statement reveals a pragmatic choice: a reliance on the malleability of the special legislation and on its benefits to the efficiency of the Brazilian political repression. The flexibility of the non-codified legislation is not necessarily related to its position in the hierarchy of laws, and in fact both the Code and the special legislation occupy the same place in the hierarchy of norms. However, the adaptation or modification of special laws both avoids the risk of undermining the Code’s systematic architecture and is intended symbolically to preserve the stability of the ‘code-monument’. Consequently, the Commission’s decision was a pragmatic one, especially in comparison with other authoritarian tendencies of the time. For example, by means of its provisions on crimes against the state the 1930 Italian Penal Code symbolically expressed the Fascist ideals of statism, and its section on ‘specific offences’ revealed the Fascist aim of annihilating political enemies, notably in a very severe chapter on ‘crimes against the personality of the State’ (establishing that those accused of them were to be judged by the Special Tribunal for the Defence of the State). However, the main difference between the Fascist regime and the Brazilian Estado Novo does not concern the way in which political crimes were dealt with in the legal system, as harshness of treatment and punishment were also characteristics of Vargas’s regime. Rather, by excluding political offences from the architecture of the Penal Code, the Brazilian Commission gave up the symbolic aspect that was significant in the Italian Code. Within the liberal tradition, the double level of legality was already used to respond to emergencies (not only political), and this means that in some levels of legality the glorious liberal principles contained in codes were often contradicted.100 The main difference here concerns the modalities of relationship between these levels of legality. In the liberal tradition, there are exceptions to the main principles of liberal criminal law. In contrast, in the case of ‘anti-liberal’ Brazilian law, there is not exactly a contradiction of this sort, as the whole system was oriented towards social defence goals. The distinction between the Code’s guidelines and the political crimes sub-system is merely a matter of degree: they present a common general purpose, that is, to improve the social defence against (common and political) criminality, a tendency that was described at that time as a partial change of direction in relation to the precedent ‘liberal laxity’. In an interview we have previously quoted, Campos explained those guidelines: ‘the forthcoming code, guided by the purpose of an effective social defence, will create, by regulating penalties and security measures, a very rigorous apparatus for the repression of crimes’.101 Inside or outside the Code, the purpose is the same, although at distinct levels. As discussed above, if we look at the relationships between the Code and the special ­legislation, there is a rupture. However, looking particularly at the special legislation, although the rupture exists it has a different nature because, on the one hand, the contents of the 1935 National Security Act are not so different in comparison with the 1921 ­Anti-Anarchist Act; and on the other hand, the National Security Tribunal and the whole set of ­repressive 99 ibid 144. 100 See Sbriccoli, ‘Caratteri originari e tratti permanenti del sistema penale italiano (1860–1990)’ (n 9); and Meccarelli, ‘Paradigmi dell’eccezione’ (n 12). 101 Campos (n 52) 144.

342  Diego Nunes and Ricardo Sontag legislative apparatus to enact the 1935 National Security Act are exceptional, whereas the ordinary jurisdiction was used before. As a matter of fact, within a process of rupture there are always several levels of connection between new events and the traditions that preceded them (broadly referred to here as liberal). Consequently, we consider questionable the opinion that the 1940 Penal Code was one more step in a strong and continuous liberal tradition in Brazilian law.102

Conclusion Thus, you find in the codifier a friend of stability and long-standing, essential spiritual goods … whose protection and defence are the duty of the government and its leaders. Codification satisfies this deep impulse of human nature: each generation wants to last beyond the borders defined to it by nature and history.103

These were the final remarks of Campos’s lecture at the Federal Appeal Court in December 1940, a few days after the Penal Code was decreed. The Code was an emblem of stability against contingency: Campos justified its necessity by describing stability as a basic requirement of human nature. Instead of considering the explanations provided by Campos’s statements as adequate historical explanations, we prefer to historicise his claims on human nature within a history of the representations of the law on the relationship between stability and contingency, that is, the different historical forms of demands for stability. In this sense, we should inscribe Campos’s statement within the modern idea of codification, in fact within a specific type of the modern, highly technicised idea of codification (although, simultaneously, the technique would be subordinated to the political producer of legislative norms). Our purpose was to understand the very concepts of stability and contingency within the contingency of legal history. Political crime is closely attached to the concept of contingency, and this raises the question whether or not it is possible to withdraw political crimes from their historical contingency. A certain amount of abstraction is fundamental in order to embody a crime in the systemic structure of a modern penal code (and we are analysing a typical and historical 102 Contemporary historiography is sceptical of similar depictions of the history of Brazilian criminal law: note M de M Silveira, ‘De uma República a Outra: Notas sobre os Códigos Penais de 1890 e de 1940’ (2010) Revista do CAAP 2; Sontag, Código e Técnica (n 4); Prando (n 4); and Nunes (n 2). On this point note A Dal Ri Júnior, O Estado e seus Inimigos. A Repressão Política na História do Direito Penal (Rio de Janeiro, Revan, 2006) 267: ‘the authoritarian tradition that partially influenced the Brazilian criminal legislation was considerably more present in the National Security Act promulgated by Vargas in 1935, than in the code’. The 1940 Penal Code is indeed ‘more liberal’ (or ‘less authoritarian’) than the national security legislation then in force, but that does not mean the 1940 Penal Code is part of a long-standing and continuous Brazilian liberal tradition. In contrast, Prando (n 4) 166 states that ‘Arno Dal Ri Junior … based his opinion on the supposedly liberal political-criminal position of Hungria, arguing the code was free from excessively authoritarian tendencies, securing its place in the liberal penal sphere’. However, in that regard Dal Ri Júnior only mentions a ‘dose’ of liberalism in comparison with national security statutes, which is not incorrect. Whether or not the 1940 Penal Code is part of a long-standing liberal tradition is not central to Dal Ri Júnior’s analysis, which deals particularly with the history of political crimes and not with the history of the Code or its double level of legality (the latter being our own object). This difference in focus is likely to explain why Dal Ri Júnior accepts, at 268, Hungria’s Carrarian argument as the real explanation for the absence of political crimes in the 1940 Penal Code. This critical dialogue with Dal Ri Júnior’s book played an important role in encouraging our research. 103 Campos (n 52) 215.

The Restless National Security Acts  343 kind of demand of abstraction, inscribed within the modern idea of codification). Francesco Carrara dealt with a similar issue in the famous last chapter of his Programma on political crimes. According to him it is very hard to detach political crimes from contingency claims (namely, claims about the repression of political dissent), and for this reason the science of criminal law should not analyse this kind of issue within its systematic and rational architecture. However, despite being pronounced by a liberal, Carrara’s opinion carried strong criticism against the manipulation of law, even by so-called liberal governments. In Brazil, through a number of individual statutes parallel to the 1890 and 1940 Penal Codes the Vargas regime (1930–45) built a repression apparatus against political dissent. A very harsh sub-system of political repression, after 1936 it also became particularly authoritarian, proposing a distinctive representation of political dissent: political criminals were no longer represented as misguided dreamers who should be punished ‘softly’ (at least in the less serious cases), but as enemies of the state who had to be eliminated. Although political crime played a significant symbolic role in the Estado Novo’s identity, its 1940 Penal Code did not absorb the dispersed legislation on political crimes, and this apparent contradiction has generated much confusion. Criminal law saw important changes during Vargas’s regime, because of the contingency of the multiple statutes on political crimes. Simultaneously, vulnerabilities in scholarship and practice invited anti-democratic ideologies. Jurists like Nélson Hungria had authoritarian inflexions (as seen in his lecture ‘The Estado Novo’s Criminal Law’) hiding behind excuses of legal technicism. Other jurists, such as Raul Machado, applied criminal legislation in an authoritarian way, by interpreting it in accordance with the Estado Novo’s ideological statements. We found several references to Carrara’s argument amid addresses and lectures delivered in this period by Brazilian jurists. Carrara’s words were used in order to express the view that a main concern regarding the Code should be the preservation of its systemic structure. Although on the one hand this argument might be seen as rhetorically persuasive, on the other hand Carrara’s discourse was very critical of the political manipulation of law, a criticism that does not appear in the discourse of Brazilian jurists of the 1940s. What we identify in the Brazilian discourse of that period is in fact a technicised version of Carrara’s argument: the same words acquired different performative meanings in different historical contexts. Furthermore, the statements that explicitly removed Carrara’s argument or simply did not quote it were clear about the anti-liberal character of the decision not to include political crimes in the Code. To preserve the Code’s systemic structure also meant to preserve the efficiency of a sub-system that had to change according to political contingencies: the very opposite of the original – performative – sense of Carrara’s quotation. Lastly, as a final remark on the interplay between substance and methodological reflection, we wish to draw attention to the relationships between law and contingencies, and law and politics, from a meta-discourse perspective, that is, regarding the historiographical operation we have carried out. Looking beyond the substance of the above analysis, the nexus of these factors raises questions not only about the theory of criminal law in Brazil in this specific period, but perhaps also about the processes of legal historiography. Although a fully developed contemplation of such matters falls beyond the scope of this chapter, it is worth noting that the role of historians is to connect issues with their historical contingencies, to their contexts. In Carrara’s argument, it is evident that he was dealing with a specific kind of contingency, to the point that historians reading his Annales probably would call

344  Diego Nunes and Ricardo Sontag them histoire événementielle. Nevertheless, contingency – on its several levels – is always constitutive of historiographical operations. Due to the historiographical construction of our research problem, our objective in this chapter was to identify, within a historical – contingent – context, the very representation of the relationship between contingency and stability in legal discourses and practices. The contingency point leads us to another meta-discourse question: the relationship between law and political forms. Indeed, the search for these historical connections is an important methodological guide and allows us to historicise our subjects: for example, the ties between criminal law and criminal justice and the construction of the nation and the state. From the perspective of politics, our topic probably concerns the most critical sector of criminal law. Methodologically, we have identified that legal practices and discourses within different epochs do represent differently the relationship between criminal law and politics: hence the abyss that separates the original sense of Carrara’s argument and the others we have analysed in the Brazilian context. Thus, we have tried to draw attention to the very way in which a historical type of criminal law and its ideology shaped the relationship between law and political contingencies, in other words, to identify as historical contingencies the different forms of this relationship within different legal cultures.

16 The Law of Blood: Totalitarianism, Criminal Law and the Body Politic of Second World War Romania COSMIN CERCEL

Introduction In this chapter I explore two central politico-legal concepts that have marked both the history of the Holocaust and the ideological self-representation of the state in the wake of right-wing authoritarianism in Romania, namely the concepts of ‘organic Nation’ and of ‘blood’, as they appear within the framework of the anti-Jewish Decree Laws passed on 8 August 1940. In so doing I examine the role played by criminal law in devising the conceptual frame crucial for the emergence of such legal notions as well as in the dynamics of policing the limits of the Nation. By scrutinising the legal and the extra-juridical context influencing the emergence of these concepts, I offer a deeper insight into the ideological creeds of the regime of power in Romania at the beginning of the Second World War and shed new light on the politico-legal imaginary of the ‘eliminationist drive’1 nested in Romanian constitutional and criminal law projects. I thus ask, what was the normative function of the concepts of ‘organic Nation’ and ‘blood’ in redefining the constitutional subject and in changing the nature of the constitutional system in place at that time? I address this issue by exploring the historical context of the legislation, the legal and jurisprudential significance of its core concepts, and the deeper symbolic, cultural and discursive significance and normative weight that they convey. Thus, as a matter of historiographical enquiry, I situate this legislation in Romanian history and especially the shift in Carol II’s regime from an authoritarian royal dictatorship to a ‘totalitarian state’.2 The passing of the anti-Jewish legislation, at least formally inspired by the Nuremberg laws,3 and the proclamation of the ‘totalitarian nature’ of the state were part of a political dynamic engendered by the war and political alignment with the Axis. This was, however, also part of a wider internal political and cultural process already at work in ultra-­nationalist 1 A Kallis, Genocide and Fascism: The Eliminationist Drive in Fascist Europe (London, Routledge, 2009). 2 Decree Law for the transformation of the Front of National Rebirth into the Party of the Nation, MOf No 142, 22 June 1940. 3 Ministry of Justice, ‘Report to the Council of Ministers’, MOf No 183, 9 August 1940, 4087–88, 4087.

346  Cosmin Cercel i­deology since the end of the nineteenth century and informing the nation-building process following the First World War. Consequently, I seek to place this legislation within the broader discussion about the autonomous character of the Romanian project of Jewish ­extermination4 and to reflect on law’s role within this process. As a matter of legal analysis, this chapter traces the origins of the legal dispositive through which the limits of the political community were devised by looking at constitutional developments since the late nineteenth century as well as at substantive criminal law in relation to these decrees. In this regard, my argument will follow the ways in which criminal law was construed as a branch of legal practice aimed at protecting not only the form of the state but also its constituents, while participating in a general reconstruction of classical constitutional categories. Accordingly, I examine how criminal law and other spheres of public law linked categories such as dangerousness and foreignness in reconstructing national belonging. By analysing the legal dispositive of the Decree Laws of 8 August 1940, I expose the emergence of a specific thematisation of race at the interface between criminal law and constitutional law. As a matter of jurisprudential enquiry, I address the discourses conveyed in the reconstruction of sovereign power sustaining a legal framework which operated within the boundaries of a ‘state of exception’.5 As such, I emphasise the importance of both legal theory and legal history for an understanding of ‘evil law’. Here I distance myself from Arendt’s reading of totalitarianism as a lawless enterprise,6 and I stress the central place of legality within this context. It is primarily for this reason that my use of the concept of totalitarianism is strictly descriptive and limited to the specific thrust of Carol II’s dictatorial ideology. This ideological stance was not very different from the Italian Fascist theorisation of totalitarianism, that is, of a political doctrine that ‘concerns itself not only with political organization and political tendency but with the whole will and thought and feeling of the nation’.7 For the deeper discursive purposes of this investigation, I borrow key theoretical tools from Louis Althusser. I thus analyse law as an apparatus at the interface between ideology and repression,8 that is, as both part of the reproduction of the relations of production9 and of the exercise of violence that renders ideology operable.10 Perhaps more importantly, I find the relation between the subject and the body of law in this particular context to be a telling example of the ways in which subjection functions.11 Indeed, Althusser’s formula of interpellation is central for understanding how one is a subject of law and is attached to the law through law’s own ideological operation.12 In this respect, I follow Althusser while

4 D Stone, Histories of the Holocaust (Oxford, Oxford University Press, 2010) 36. 5 G Agamben, State of Exception (K Attell trans) (Chicago, IL, University of Chicago Press, 2005 [2003]). 6 H Arendt, Origins of Totalitarianism (New York, Harvest Books & Harcourt, 1985 [1951]) 364–65, 389–92, 464–65. 7 See G Gentile, ‘The Philosophic Basis of Fascism’ (1928) 6 Foreign Affairs 290, 290. 8 L Althusser, ‘Idéologie et appareils idéologiques d’Etat’ in L Althusser, Positions 1964–1975 (Paris, Editions Sociales, 1976) 82. 9 ibid 70–72. 10 ibid 84. 11 ibid 104–08. 12 ibid 120–21.

The Law of Blood  347 insisting on one important caveat, that is, the materiality of ideology and its real existence. In this sense, my analysis follows fascist ideology as embodied in apparatuses and in practices organised around these apparatuses13 and thus seeks to take into account the law’s own effects on reality.

A Legislation of Crisis: Law, State, History On 9 August 1940 the Official Journal of the Kingdom of Romania published two decrees that substantially affected the legal status of citizens of Jewish descent. The first decree14 sought to establish a conceptual framework intended to serve as a basis for future legislation and administrative measures in relation to the Jewish population. The text was meant to operate, by means of a somewhat convoluted definitional strategy, a general discrimination between Jews and what it termed as being ‘Romanians by blood’.15 Not only did it institute Jewishness as a legal category, but it also imposed limitations on Jews’ access to work and public office, as well as acquisition of property. Furthermore, it created special administrative measures related to this new legal status. These prohibitions and prescriptions were protected by a broad range of civil, administrative and criminal law sanctions. The second decree16 was intended to substantiate further this definitional regime, by creating a specific prohibition of marriage between ‘Romanians by blood’ and ‘Jews’. The language employed by this subsequent piece of legislation left no doubt about its aim of prohibiting miscegenation, formulated as a way of protecting the Nation.17 As the publication conventions of the time required, the text of the decree was followed by a statement of reasons drafted by the Ministry of Justice commenting on the legal and political arguments supporting the constitutionality of the proposed legislation. According to these rather succinct arguments brought before the government and the King, the first decree aimed to ‘decipher … the very law of the destiny of the Nation’.18 It ultimately intended to ‘settle justice for the Romanian people’,19 by addressing the ‘Jewish question’20 and thus ‘imposing, through discrimination, the charter of rights of the Romanian people’.21 This second legislative intervention was construed as a mere substantiation of the first, which was imbued with the desire to ‘apply organic nationalism’22 by ‘promoting the nation in its organic and creative elements’23 and through ‘the purification of the nation of its parasitic and heterogeneous elements’.24

13 ibid 104–05. 14 Decree Law concerning the Legal Status of Jews, MOf No 183, 9 August 1940. 15 ‘Report to the Council of Ministers’, 9 August 1940 (n 3) 4081–86, 4083. 16 Decree Law for the Prohibition of Marriages Between Romanians of Blood and Jews, MOf No 183, 9 August 1940. 17 ‘Report to the Council of Ministers’, 9 August 1940 (n 3) 4087–88, 4087. 18 ibid 4081. 19 ibid. 20 ibid. 21 ibid 4086. 22 ibid 4087. 23 ibid. 24 ibid 4088.

348  Cosmin Cercel Before examining the politico-legal significance of these decrees and their power in reshaping the symbolic sphere of citizenship and political belonging in the context of the crisis of the royal dictatorship in Romania, it is useful to situate them within the historical trajectory of the Romanian state. The historical index that the decrees bear, both as a matter of historiography and archival concern, points towards the fateful summer of 1940, a period of time that was particularly charged for this kingdom in Southeastern Europe. This period, from June to September, was inscribed in official history and memory as being marked by crucial transformations including important territorial cessions to the USSR, Hungary and Bulgaria,25 the exchange of populations,26 government reshuffles and regime changes.27 The territorial cessions were followed by the abdication of the King and the appointment of a short-lived government founded on an uneasy alliance between the military and the main fascist political party,28 the Iron Guard. This event made the latter ‘the only fascist movement in Europe outside Germany and Italy to come to power without foreign aid’.29 Thus, the decrees emerged just at the interface between two regimes of power – the royal dictatorship of King Carol II and the fascist dictatorship of 1940 – which provides the crucial starting point for their analysis. To be more precise, Ion Gruia, the Minister of Justice whose signature is present on both pieces of legislation, held office for only a month in that period, as a member of a hastily created government charged with aligning Romania with the Axis powers.30 Facing the French military debacle and the affirmation of Nazi Germany as the new continental hegemon, Romania moved away from ‘the politics of equilibrium’31 followed during the late 1930s and strengthened its ties with the Third Reich by an outright rejection of the Allied guarantees on 1 July 1940.32 This position was to some extent dictated by the increased isolation in which Romania found itself following the loss of its main guarantor of independence, France, as well as by the waves created within public opinion by the politics of appeasement of the late 1930s,33 and Romania’s ambiguous foreign policy since 1936.34 The important geopolitical shifts of the summer of 1940 were perceived to be particularly sensitive in the majority of countries of Central and Eastern Europe and the Balkans. Having emerged largely as a result of the Versailles Treaties on the ruins of the old empires, ­Romania, Yugoslavia, Czechoslovakia, Poland and the Baltic States relied heavily on the stability of international political arrangements. This feature was not only a matter of international relations or international law, but touched upon core aspects of the constitutional structure of the state, such as citizenship and territory. There was thus an important

25 The territorial losses consisted in the transfer of Northern Bukovina and Bessarabia to the USSR following the Ultimatum of 28 June 1940, North-Western Transylvania to Hungary as a result of the Second Vienna Award rendered on 30 August 1940 and Southern Dobrogea to Bulgaria on 7 September 1940 following the Treaty of Craiova: K Hitchins, Rumania 1866–1947 (Oxford, Oxford University Press, 1994) 445–47. 26 V Solonari, Purifying the Nation: Population Exchange and Ethnic Cleansing in Nazi-Allied Romania (Baltimore, MD, Johns Hopkins University Press, 2010) 95–117. 27 D Deletant, Hitler’s Forgotten Ally (Basingstoke, Palgrave Macmillan, 2006) 46–48. 28 Hitchins (n 25) 455–62. 29 E Weber, ‘Men of the Archangel’ (1966) 1 Journal of Contemporary History 101, 103. 30 Deletant (n 27) 12–13. 31 ibid 11–12. 32 ibid 12. 33 ibid 14–15; Hitchins (n 25) 445. 34 R Haynes, Romanian Policy towards Germany, 1936–1940 (Basingstoke, Palgrave Macmillan, 2000).

The Law of Blood  349 nexus between internal and external aspects of sovereignty that was perhaps a central constitutional feature for the countries of the cordon sanitaire in so far as their very existence was linked to the inherent fragility of the Versailles system.35 Further complicating the already complex picture, it is important to note that the post-Versailles status quo was also contested in the region by countries such as Hungary, Bulgaria and, to some extent, Austria, as well as by groups of populations within the borders of the newly created states, such as the Croats, Germans and Slovaks. In the case of Romania, a particularly important issue was the territories acquired in 1918:  Bessarabia, gained from the Tsarist Empire, Bukovina, Banat and Transylvania acquired from Austro-Hungary, as well as southern Dobrogea re-acquired from Bulgaria. These territorial readjustments resulting from the Versailles Treaty were considered in Romania as nothing short of an act of historical justice consisting in reintegrating national provinces to the motherland and thus opening a new stage in the process of nation ­building.36 The realities on the ground were however much harsher than the Romanian State was willing and able to acknowledge. The process of unification was slow, inconclusive and uncertain – a far cry from the nationalist pledges for a swift and long-desired reunion of Romanians of the three states, namely the Austro-Hungarian Empire, Tsarist Russia and the Romanian Old Kingdom. It was marred by political, economic and administrative setbacks, determined both by the nature and scope of the project and the limited resources the Romanian state was able to muster.37 There were also deeper structural tensions traversing Romanian society from the pre-war era, which were yet to find their uneasy political articulation during the interwar period. Looked at closely, these tensions emerged from what we could call the inherent syncretism of Romanian society, which was entangled in the vagaries of an unfinished modernisation, as astutely captured by the Romanian Marxist Dobrogeanu-Gherea in his study, ­Neoserfdom.38 The Romanian case, perhaps not very different from that of other Balkan countries,39 presents an exemplary mixture between relations of production specific to pre-modern settings and modern capitalist relations, ultimately determined by the very backward character of the means of production present in this context.40 The tension between the two  tendencies had certainly marked the earlier history of the country; however, in the general reshuffling brought about by the Great War, it was to be restructured along new discursive lines. What continued to be present was the general economic trend of backwardness in comparison to the Western capitalist model. This was considered to be a central problem by both left- and right-wing analysts of the time and informed the general debates on the future of the polity.41

35 R Bideleux and I Jeffries, A History of Eastern Europe (London, Routledge, 1998) 417. 36 Hitchins (n 25) 276–90. 37 I Livezeanu, Cultural Politics in Greater Romania (Ithaca, NY, Cornell University Press, 1995) 7–8. 38 CD Gherea, ‘Neoiobăgia. Studiu economico-sociologic al problemei noastre agrare’ in CD Gherea, Opere complete, Vol 4 (Bucharest, Editura Politică, 1977 [1910]). On Dobrogeanu-Gherea’s work see A State, ‘­Constantin Dobrogeanu-Gherea’ in A Cistelecan and A State (eds), Plante Exotice: Teoria şi practica marxiştilor români (Bucharest, Tact, 2016). 39 C Aronovici, ‘Neoiobăgia by Constantin Dobrogeanu-Gherea’ (1911) 1 The American Economic Review 572, 573. 40 State (n 38) 39–40. 41 Hitchins (n 25) 366–70.

350  Cosmin Cercel These tensions were also unfolding against a background marked by the specific political openings caused by the Great War. Indeed, the experience of the world conflagration had directly influenced not only the basic constituents of the state – territory and population – but also affected the very structure of the relations of production. It is worth recalling that even before the liberal Constitution of 192342 was adopted, an agricultural reform43 considered among the most radical of its time, save perhaps Soviet Russia, put an end to large estates and subsequently to the political power of the aristocracy.44 Moreover, the change of the electoral system from a vote based on census to universal male suffrage had importantly restructured the political sphere.45 While the scale of the social changes affecting the country during the two decades of the interwar period was not able to do away with the perceived economic backwardness, it nevertheless fuelled a series of new ideological tropes such as the belief in the possibility of overcoming the historical lag through resolute decisions and a greater mobilisation of the country. In this sense, it is apt to note that the diagnosis offered by Hungarian sociologist Oszkár Iászi for the countries of Eastern Europe, that ‘sometimes a war is also a revolution’,46 would apply in the case of Romania. Indeed, the policies devised under the aegis of war reconstruction and unification became part of a trend of reforms that were hampered only by the financial crisis of 1929.47 At that moment, political life in Romania was steadily engulfed in a maelstrom of events affecting its functioning and organisation. The return to rule of King Carol II after a previous renunciation of his right to the throne, on the occasion of a constitutional coup supported by the National Peasant Party, was just the start of a series of political misadventures.48 The economic strain of 1929 ultimately found an uneasy resolution in the macro-stabilisation package negotiated under the auspices of the League of Nations in 1932, with international lenders imposing harsh austerity measures. In reaction to this, industrial actions during the early months of 1933 were organised throughout the country. The state’s response to the railway workers’ strike of 1933 took the form of the institution of martial law. As a consequence, the already outlawed communist movement alongside the trade unions were targeted by military repression49 and criminal law proceedings.50 Also noteworthy here was the initial support offered by the King to the main fascist movement, the Iron Guard, and the affirmation of the latter as an important political force.51 The later refusal of the Guard to acknowledge the King as its leader sparked an open conflict between the monarchy and

42 The Constitution of Romania of 28 March 1923 MOf No 282, 29 March 1923. 43 Statute concerning the Land Reform in Oltenia, Muntenia, Moldova and Dobrogea, 14 July 1921, MOf No 82, 17 July 1921 and Statute for the Land Reform in Transylvania, Crişana and Maramureş, 30 July 1921, MOf No 93, 30 July 1921. 44 Hitchins (n 25) 351. 45 Decree Law of 15 November 1918 on the Elections for the Representative Assembly and the Senate, MOf No 191, 19 November 1918. 46 Oszkár Iászi cited by Bideleux and Jeffries in Bideleux and Jeffries (n 35) 431. 47 Hitchins (n 25) 360. 48 ibid 415; R Haynes, ‘Reluctant Allies? Iuliu Maniu and Corneliu Zelea Codreanu Against King Carol II of Romania’ (2007) 85 Slavonic and East European Review 105, 108. 49 Hitchins (n 25) 417. See also Statute for the authorisation of the State of Siege of 4 February 1933, in MOf No 29, 4 February 1933. 50 A Cioroianu (ed), Comuniştii înainte de comunism (Bucharest, Editura Universităţii din Bucureşti, 2014). 51 Haynes, ‘Reluctant Allies?’ (n 48) 110.

The Law of Blood  351 the fascists,52 laden with consequences for the status of legality during this decade. As such, the government’s attempts at quelling fascist activism were followed by the imposition of martial law and a recurrent use of expedited criminal and administrative measures, as well as by violent reactions on the fascist side, taking the form of political assassinations.53 The general conflictual situation was matched within the sphere of established politics by an increased fragmentation. This trend was further accelerated by the downfall of the pre-war central parties – most importantly by the disappearance of the Conservative Party and the slow demise of the National Liberals. The period was also marked by the affirmation of new forces such as the National Peasant Party, the far-right National Christian Party, the factionalist liberals, and the fascist movement embodied by the Iron Guard.54 Moreover, the King’s approach to politics and public affairs, marked by an authoritarian stand and by constant public scandals, alienated him from his initial supporters, the National Peasant Party, arguably the most prominent democratic force within established politics. Under the conditions of an electoral system based on a ‘majority bonus’55 as set out by the legislation of 1926, the level of fragmentation could no longer be contained and ended up in a political standstill. On the occasion of the 1937 elections, with none of the competing parties able to claim the 40 per cent needed to form a government, and against the background of active opposition by the National Peasant Party, no government could be formed.56 As a consequence, the King, acting within the lax boundaries of the Constitution of 1923, appointed a government supported by the National Christian Party (NCP), despite the latter’s ranking fourth in the elections with less than 10 per cent of the votes cast. Described as ‘a nationalistic and virulently anti-Semitic party of the conservative right’,57 the NCP was the result of a merger between the National Agrarian Party, a minor party originally of a monarchist and conservative outlook which took a more pronounced anti-Semitic stand under the leadership of the nationally acclaimed poet Octavian Goga,58 and the League of National and Christian Defence (LNCD). The latter was an ultranationalist anti-Semitic movement under the leadership of Alexandru C Cuza that dominated the ultranationalist scene of the early 1920s before the emergence of the fascist Legion of Archangel Michael.59 Coming to power on 28 December 1937 with the nomination of Goga as Prime Minister, the NCP-backed government is considered to mark a watershed in ­Romanian politics. Despite its meteoric existence that lasted no more than 45 days, the Goga government was credited with preparing a radical turn, mainly due to its pro-German60 stance

52 Hitchins (n 25) 418. 53 R Clark, Holy Legionary Youth (Ithaca, NY, Cornell University Press, 2015) 99–100. 54 Hitchins (n 25) 417–20. 55 Under this system the party passing the 40% threshold needed to form a government gained extra representation in the Assembly. This was in practice a ‘regime bonus’ because the party organising the elections would get the extra seats. 56 Hitchins (n 25) 420. 57 PA Shapiro, ‘Prelude to Dictatorship in Romania: the National Christian Party in Power, December 1937–February 1938’ (1974) 8 Canadian–American Slavic Studies 45, 45. 58 ibid 48. 59 ibid 49. 60 ibid 70–71.

352  Cosmin Cercel and its adoption of overtly anti-Semitic policies,61 which were both in contrast to the official support for the Versailles Treaty professed by the Romanian state since its signature. ­Moreover, the newly appointed Defence Minister was General Ion Antonescu, who later became the military dictator of the country. A significant number of officials, who were later to be part of his administration starting in September 1940, were also appointed in the lower echelons of the executive.62 Despite the undeniable symbolic weight of this turn, the impact of the Goga government is rather limited. First, although there was a declared change towards a pro-German stance, the activity of the Minister of Foreign Affairs, Istrate Micescu, himself a pro-German, did not change substantially Romania’s international alignment. Indeed, the country reiterated its obligations within the Little Entente as well as its ties with its traditional allies, such as France, Czechoslovakia, Poland and Yugoslavia.63 Second, the internal anti-Semitic policy implemented by the government through a royal decree aimed at the revision of citizenship was swiftly curbed.64 In short, under the guise of clarifying the legal status of citizenship, the decree targeted Jews who had acquired citizenship after 1923 and was aimed at effectively rescinding the status of those unable to clarify their situation by producing new proof of domicile, work and income.65 The legislation was met with strong opposition both from the Jewish population and Romania’s guarantors. While Jewish passive resistance risked bringing the economy to a standstill,66 ‘as Jews boycotted work and withdrew their money from the banks’,67 France threatened to consider itself relieved of any guarantees towards Romania, if the policy was pursued.68 For their part, Britain and the United States stated their dissatisfaction with Romania’s non-compliance with the Minorities Protection Treaty.69 These reactions brought the implementation of the legislation to a halt. However, the failures of the government were not limited to either the anti-Semitic legislation or the ambiguous foreign policy towards Germany. Preparing for the snap elections due in early March, the NCP faced the violent opposition of the Iron Guard. Clashes between the paramilitary militias of the two parties added to the already explosive situation.70 While an agreement was reached between the two groups, mostly based on their shared anti-Semitic and pro-German positions, it came too late to support the NCP’s plan to increase its vote in the coming elections. The King asked for Goga’s resignation while embarking on his own dictatorial project. On 11 February 1938 he declared the Constitution invalid and abolished all political parties, and on 27 February a constitution was passed,71 instituting the regime of royal dictatorship.

61 ibid 73. 62 ibid 46. 63 Haynes, Romanian Policy towards Germany (n 34) 44. As Haynes notes, Micescu’s itinerary in January 1938 did not include any of the Axis capitals. 64 Royal Decree concerning the revision of citizenship of 21 January 1938, MOf, 22 January 1938. 65 ibid arts 9–17. 66 Shapiro (n 57) 73. 67 Haynes, Romanian Policy towards Germany (n 34) 46. 68 Shapiro (n 57) 74. 69 ibid; Haynes, Romanian Policy towards Germany (n 34) 46. 70 Shapiro (n 57) 83. 71 The Constitution of Romania of 1938 in MOf No 48, 27 February 1938.

The Law of Blood  353

From Authoritarianism to Totalitarianism: The ‘New’ Constitution Under the new constitutional arrangements, the King was explicitly identified as the Head of State.72 Such a position was already present in the 1866 Constitution and found its origins in the Belgian Constitution of 183073 which served as a model for the Romanian fundamental law. However, within the Constitution of 1923, the King was referred to only in relation to his ‘constitutional powers’.74 As constitutionalists of the time noted, the reintroduction of this provision was not a mere restatement of a traditional position on this issue, but ‘signifies that the King is not only a symbol, and that he also has a role in governing, of providing indications that have to be established under the form of binding norms’.75 More importantly, the Constitution of 1938 also connected the King to the exercise of legislative powers through an ambiguous formulation, the interpretation of which divided constitutional commentators. Pursuant to article 31, ‘legislative power is exercised by the King through the National Representation divided into two Assemblies: the Senate and the Assembly of Deputies’.76 According to some leading constitutionalists of the time, such as Anibal ­Teodorescu and Paul Negulescu, the King was now ‘a unique legislative organ’ able to legislate both in his own right and through the mediation of the chambers.77 The minority position, following a literal interpretation of the constitutional text, affirmed that the King only exercised executive powers.78 This view was supported by none other than the future Minister of Justice, Ion V Gruia,79 at that time a professor of law at the University of Bucharest. Even despite this disagreement, there was an almost unanimous consensus in interpreting the Constitution as being organised around the figure of the King, who was thus perceived to assure the unity and cohesion of state powers. As Andrei Rădulescu, president of the Romanian highest court, noted on the role of the monarch: ‘by his participation in all the powers of the state he reunites them all in his hand … He represents their link and is the symbol of the organic unity of the state’.80 Given his power to call the Assemblies, the King was once again the key organ in the exercise of legislative power. Unlike in the previous constitutional regimes, the 1938 Constitution dispensed with the obligation of the Assemblies to reunite and function on a fixed date. The King thus retained ‘an absolute right’81 to convoke the legislative corps, limited only by the obligation that this right should be exercised at least once every year. 72 ibid art 30. 73 A Tilman-Timon, Les actes constitutionnels en Roumanie de 1938 à 1944 (Bucharest, Imprimerie Cugetarea, 1947) 32. 74 The Constitution of Romania of 28 March 1923, art 77. 75 Tilman-Timon (n 73) 32. See also A Rădulescu, Noua Constituţie, 2nd edn (Bucharest, Cuvântul Românesc, 1939) 12; P Negulescu, Principiile fundamentale ale constituţiei din 27 februarie 1938 (Bucharest, Atelierele Zanet Corlăţeanu, 1939) 90. 76 The Constitution of Romania of 1938. 77 Tilman-Timon (n 73) 34; Negulescu (n 75) 97; A Teodorescu, Curs de drept administrativ (Bucharest, ­Facultatea de Drept, 1939) 88. 78 The Constitution of Romania of 1938, art 31, § 5. 79 Tilman-Timon (n 73) 34; A Ionasco, ‘La nouvelle constitution roumaine’ (1939) 68 Bulletin de la Société de Legislation Comparée 345, 348. 80 Rădulescu (n 75) 39. 81 Ionasco (n 79) 349.

354  Cosmin Cercel In addition to this feature, the 1938 Constitution also conferred on the King the right to dissolve the representative bodies.82 This was subjected to a single condition with regard to the convocation of the electors and the new Assemblies, but without setting any specific temporal limit to this end, which in fact left the King carte blanche to dissolve the Parliament at his leisure. Furthermore, the Assemblies lost their general legislative initiative, and were called to exercise this right only with regard to ‘laws in the public interest of the state’,83 thus no longer being able to legislate on local or regional matters. For the purposes of constitutional revision, the King retained an exclusive right limited only by a duty to consult the legislative corps on the provisions to be revised. In short, the King was no longer intervening in the legislative process only by means of sanctions but became a central body able thoroughly to affect both the form and substance of the statutes. In relation to the executive power, the King enjoyed the traditional constitutional prerogatives present within the framework of other constitutions as well – such as naming and dismissing ministers, exercising grace and punishment reductions, and being the chief of the army. The existing consensus on the ‘authoritarian nature’84 of the new constitutional regime was also supported by the introduction of a new constitutional provision concerning the King’s right to declare war and conclude peace, as well as by the suppression of a key provision of the 1923 Constitution, namely the fact that all the King’s powers were explicitly instituted by the constitutional text.85 It is this final amendment that captures the inner truth of the regime: the King was no longer bound by the principle of attribution, a fact that itself questions the very nature of constitutional monarchy and the very purpose of the constitutional text. But perhaps one should avoid retrospectively reading into the text of this constitution a logic specific to modern constitutionalism. A simple glance at its entry into force – that is by means of plebiscite – should be a sobering reminder of its historical index. Indeed, this was a text thoroughly embedded in a time marked by political violence86 and the constant use of the ‘state of siege’.87 As many a constitutional lawyer would write at that time, the Constitution ‘was issued by the King’,88 and voted by the people four days later. According to the King’s own words, it was a document that ‘answered to the legitimate exigencies of national necessities’.89 To conclude at this point, in February 1938 we witness a regime change embodied in a constitutional text that was devised and passed ‘in days of danger’,90 and was historically perceived ‘as a reaction to certain excesses of the Right’.91 Following the politico-legal thread towards the passing of the infamous decrees of 8 August, it is important to note the suppression of political parties in March 1938, by means 82 The Constitution of Romania of 1938, art 45. 83 ibid art 31. 84 Ionasco (n 79) 351. 85 The Constitution of Romania of 28 March 1923, art 91; Ionasco (n 79) 359. 86 Clark (n 53) 217–20. 87 Shortly before the plebiscite, the state of siege was declared continuing a long series of such uses of emergency powers. As was always the case, ‘all the powers attributed by laws related to maintaining public order and state security are passed completely to military authorities’: Royal Decree of 11 February 1938, MOf No 34, 11 February 1938. 88 Ionasco (n 79) 346. 89 ibid. 90 Tilman-Timon (n 73) 104. 91 ibid.

The Law of Blood  355 of a royal decree,92 the changes in the electoral legislation,93 and the statute introducing the Front of National Rebirth,94 the only legal party supporting the King and the state. As events spiralled towards war, two subsequent decrees seeking to further the authoritarian features of the state were issued, bearing a direct effect on the symbolic, legal and political meaning of the anti-Semitic legislation. While the King was the central figure of the 1938 Constitution, the body politic of the Nation was also redesigned, in so far as the vote was no longer based on universal male suffrage, but determined by status within the sphere of production.95 Article 61 of the Constitution marks an important moment in this respect. On the one hand, women were granted the right to vote for the formal representative body, while on the other the general principle of belonging to the body politic was that of effectively exercising an occupation. As has been noted, this new framework marked a shift from Nation to the ‘Laborious Nation’,96 creating a direct connection between political participation and economic contribution. This economic contribution was not determined by the static economic status specific to the pre-war census regime, but a dynamic evaluation of the economic potential of individuals qua members of a productive community.97 Moreover, the electors now had to be at least 30 years old and exclusively Romanians.98 A further piece of legislation would also introduce the condition of literacy for the exercise of this right.99 The newly created electoral body was called to rally around the only recognised political organisation, the Front of National Rebirth, an artificial and quite eclectic movement largely reproducing both the ideology and the theatrics of the fascist Iron Guard, yet occupying a very different political space due to its position within the very structure of the state. As such, the Front was devised with the aim ‘to mobilize national consciousness towards undertaking a solidary and unitary Romanian action of defence and elevation of the Fatherland and consolidation of the State’.100 Its overt aim was to instil unity within the body politic and to create a stronger tie between society and the state. Following the French military defeat, the Front of National Rebirth became the Party of the Nation by virtue of a decree law issued on 21 June 1940.101 The apparent marginal change in denomination concealed a new turn within the constitutional regime. The Party of the Nation was thus declared to be ‘a sole and totalitarian party’,102 which ‘guides the moral and material life of the Romanian Nation and State’.103 Beyond the stated intentions of the decree, there also lay an attempt to impose ‘a new political discipline’,104 and to create a new order in which ‘Party and State shall be the

92 Royal Decree of 30 March 1938 in MOf No 75, 31 March 1938. 93 Decree Law of 9 May 1939, MOf No 193, 9 May 1939. 94 Statute for the foundation of the political organisation the Front of National Rebirth, MOf No 293, 16 December 1938. 95 Tilman-Timon (n 73) 49. 96 Ionasco (n 79) 357. 97 ibid. 98 Tilman-Timon (n 73) 49. 99 Decree Law of 9 May 1939, art 5. 100 Tilman-Timon (n 73) 50. 101 Decree Law for the Transformation of the Front of National Rebirth into the Party of the Nation (n 2). 102 ibid art 1. 103 ibid art 2. 104 Ministry of Justice, ‘Report to the Council of Ministers’, MOf No 142, 22 June 1940, 3122.

356  Cosmin Cercel two faces of the same reality, the organized Nation’.105 Subsequent to this legislative intervention, a decree seeking to protect the sole and totalitarian political order of the Romanian state mustered criminal law institutions to defend the regime.106 According to these provisions, any actions against the Party of the Nation ranging from discrediting it to organising or constituting secret organisations with a view to propagating change in the political organisation of the country,107 were criminalised and punished by imprisonment and public destitution. It is worth noting that this legislative intervention explicitly referred to the Party of the Nation and its institutions as parts of a new political organisation of the state. Such a position was surreptitiously endowing the decree of 21 June with a constitutional value by defining the state as part of a totalitarian order.108 This preliminary observation is important for assessing the politico-legal significance of the decrees concerning the status of the Jews, as it raises a question of legality and constitutionality. Indeed, in relation to the Constitution of 1938, which was formally still in force, the decrees of 8 August were substantially in violation of its provisions related to the equality of citizens before the law,109 regardless of the fact that the decrees themselves could not have been challenged before a court. This finding should be problematised further by taking into consideration the diffuse nature of the constitutional provisions in this setting as well as their contextual character. In other words, we should ask what the effective constitution in place was at the time of their enactment and to which extent their enactment was substantially consistent with the existing body of law.

Protecting the Nation: Blood, Outlaws and the Body Politic Before addressing the legal and ideological content of the decree, a number of additional clarifications are needed to situate their meaning historically. The status of Jews in the framework of the decrees needs to be analysed as both a legal and cultural artefact that sought to clarify through its wording and recourse to criminal law the so-called ‘Jewish problem’, a trope specific to anti-Semitic discourse since the nineteenth century. As a consequence, it mirrored a specific political context and a long history of legal exclusion, which was consubstantial to the nation-building process. Following the war of 1877, one of the conditions imposed by the Berlin Treaty110 with regard to the recognition of Romanian independence was the extension of Romanian citizenship to non-Christian inhabitants, including the Jewish population, which was effectively stateless at that time. The response was a de facto non-compliance with the Treaty by means of a constitutional reform instituting draconian

105 ibid (original emphasis). 106 Decree for the Defence of the Sole and Totalitarian Order of the Romanian State, MOf No 142, 22 June 1940. 107 ibid art 1. 108 ‘Report to the Council of Ministers’, 22 June 1940 (n 104) 3123. 109 Art 5 of the Constitution of 1938: ‘all Romanian citizens, regardless of their ethnic origin or religious belief are equal before the law, owing respect and submission’. A spurious argument was made by the Ministry of Justice in supporting the idea that the decree was in fact consistent with the Constitution as the principle of equality would operate only with regard to the duty of respecting the law equally: ‘Report to the Council of Ministers’, 9 August 1940 (n 3) 4084. 110 ‘Treaty between Great Britain, Germany, Austria, France, Italy, Russia, and Turkey for the Settlement of Affairs in the East: Signed at Berlin, July 13, 1878’ (1908) 2 American Journal of International Law 401.

The Law of Blood  357 conditions for naturalisation, which benefited only a small number of Romanian Jews.111 In short, unless they were part of the elite by founding commercial and industrial establishments, Jewish inhabitants had to have produced ‘useful inventions or distinguished themselves, have fought under the Romanian flag, or [been] born and raised in Romania without ever being a foreign subject’.112 The citizenship applicants were required to establish their domicile in Romania, and prove themselves worthy of citizenship. The application in itself required a statement of their revenues, profession or craft. The whole procedure was to be subjected to a decision in the form of an individual statute approved by Parliament. Further complicating the situation, a statute from 1881 prescribing the status of foreigners,113 which blended criminal law, administrative measures and military concerns, introduced the special measure of expulsion of foreigners for matters of public order and national security.114 This opened the way for administrative abuses, as the Jewish populations were left at the mercy of the state’s representative in the territory and of the courts. The only way legally to curb such excesses was by means of an exception within the criminal law proceedings, as the courts were able to contest the expulsion decree only to the extent that it concerned the convict’s status as a foreigner.115 Certainly, the courts were willing to recognise the special status of this intermediary category,116 yet the very legal structure set out indicated a close relation between the exercise of sovereign power and the Jewish population. The decrees of expulsion, as the administrative doctrine understood them, were ‘acts of government’, that is ‘acts connected to the maintenance of the political unity of the state against attacks coming from the interior or exterior’.117 As such they evaded judicial scrutiny by their very nature. The law on the control of foreigners from 1915 came to spell out what was left unarticulated in this practice, by considering Jewish inhabitants who were not under foreign protection to be ‘Romanian subjects’,118 yet not citizens. In this capacity they were exempted from the requirement of holding a residence permit and were not ‘foreigners’ for the purposes of criminal law, yet this quality could still not be proved otherwise than by means of an exception within a criminal trial’s proceedings, a status which inherently connected identity to criminal law.119 It was only the decrees of 1918 and 1919 concerning the status of Jewish subjects and the Constitution of 1923 that opened the way towards Romanian citizenship in accordance with the Minority Treaties. However, this was only partially automatic as proof of domicile and of not having been a foreign citizen was needed. As a matter of form, it was clearly far from the pledged commitment of reducing statelessness, as an administrative procedure was put 111 The principles for naturalisation were set up by the Statute Revising the Constitution of 12 October 1879, MOf No 323, 13 October 1879. 112 Statute Revising the Constitution of 12 October 1879, art 1, § I. 113 Statute for Foreigners of 6 April 1881, MOf No 6, 7 April 1881. 114 JG Cohen, ‘Création des juridictions nationales pour les expulsions des étrangers’ (1934) 5 Bulletin de la Société Roumaine de Legislation Comparée 233, 233. 115 ibid 234. 116 See Curtea de Casaţie, Judgment of 28 October 1897, (1897) Curierul Judiciar, No 2; Cohen (n 114) 235; J Constantinesco, ‘La condition juridique des étrangers et la loi pour l’acquisition et la perte de la nationalité roumaine’ (1936) 6 Bulletin de la Société Roumaine de Legislation Comparée 186, 190. 117 Cohen (n 114) 238. 118 ibid 236. 119 ibid.

358  Cosmin Cercel in place for the recognition of citizenship. Indeed, the 1919 decrees also introduced a delay in the procedure until the end of 1928, which was prolonged for one year in 1932.120 As the NCP-led project of revising the citizenship status attests, the Romanian Jew’s situation was a matter of legal uncertainty. The legal uncertainty befalling Romanian Jews replicated the theoretical and practical difficulties of the ethno-national project within the particular historical context of interwar Romania, that is, a state that was both multicultural and legally dependent on international recognition. The political and legal vagaries determined by the authoritarian turn and the commitment to build a state based on an imagined division between ethnic Romanians and others were just a part of a wider cultural project. As such, seemingly unconnected to the realm of law, from the early years of the interwar period, a thriving academic community of medics, anthropologists and, to some extent, sociologists, embarked on a project of changing Romania according to the tenets of eugenics.121 Organised around two scholarly journals, the Eugenic and Biopolitical Bulletin and the Review for Social Hygiene, these otherwise respected scholars advocated both projects of public health and education and, to various degrees, policies of sterilisation.122 A law thoroughly influenced by the works of Iuliu Moldovan and supported by his position as the leader of the eugenic movement was passed in 1930 and contained provisions related to the regulation of venereal diseases, industrial hygiene and infant care.123 However, more radical changes were related to the criminalisation of abortion through the Criminal Code of 1936 and culminated with the prohibition of miscegenation.124 If for historians such as Maria Bucur, there is little causal connection between this movement and the decrees analysed here,125 perhaps a line of antecedence if not direct determination can be read in, beyond the mere uses of signifiers such as ‘blood’ and ‘purity’ in both the anti-Semitic legislation and the abundant eugenicist literature. As Marius Turda observed: [T]he biologization of national belonging was not merely a primitive simplification of racism or a pseudoscientific distortion of eugenics; it was a defensive response to forms of collective and individual fragmentation brought about by the cultural, political, social, and economic transformations of European modernity during the interwar period.126

Such a discursive strategy embedded at the core of the eugenic hyper-modernist project was what rendered possible the emergence of an ideological metanarrative apt for linking spheres of knowledge and enquiry as distinct as national history, anthropology (and anthropometry) and serology.127 Authors such as Ovidiu Comşia argued quite persuasively that biopolitics had not only to do with assuring the biological assets of a specific group, but ‘in the light of ­biology, man does not appear as an abstract being capable of achieving final values under the 120 ibid. 121 M Bucur, Eugenics and Modernization in Interwar Romania (Pittsburgh, PN, University of Pittsburgh Press, 2002) 2. 122 ibid. 123 ibid 3. 124 ibid. 125 ibid. 126 M Turda, ‘The Nation as Object: Race, Blood, and Biopolitics in Interwar Romania’ (2007) 66 Slavic Review 413, 437. 127 ibid 427.

The Law of Blood  359 ­ rotection of external factors … he appears as being solidary with the genetic ambience of p his ­forefathers’.128 This secret link that keeps together communities over time biologically, is nothing else than the ethnic community understood in biological terms – the ethnos (neamul), the historical subject that should be safeguarded by means of a union with the political nation.129 Yet this community has to be protected, and this is where the connection between biopolitics and criminal law comes into play. As Iordache Făcăoaru noted, ‘by crossbreeding with inferior ethnicities, a people is deprived of its supreme values … even if the foreign ethnicities are equal or superior and the change imprinted on its destiny is favorable … its ethnic being changes its specificity’.130 In continuing this line of thought, he hastens to add ominously that ‘in our country we have minorities that constitute a serious bioethnic threat’.131 These populations are labelled as ‘left-over minorities’,132 with a negative effect on the purity of the Nation. Measures of prohibiting intermarriage and interbreeding, to put an end to miscegenation in accordance with the German model were advocated in a quite detailed manner,133 which seemed to be echoed in the decrees. A first point to be made in relation to the decrees of 8 August is their ambiguous formal standing within the hierarchy of norms. First, it is unclear whether the decrees were issued in the exercise of the legislative or executive power. The constitutional basis present in the preamble of the decrees did not preclude the possibility that the King was acting as a legislator, as some of the leading constitutionalists of the time believed.134 As such, the reference to article 46 traces back to the provision instituting the King’s power to issue decrees endowed with force of law when the Assemblies were dissolved and during the interval between the sessions. However, the nature of the Acts remained uncertain as to whether they were executive decrees with an apparent force of law that could be rescinded by further parliamentary debates, or they contained this specific force inherently as Acts issued in accordance with the King’s own legislative power. In other words, the question was whether they were ‘actual laws’135 or ‘administrative acts of authority’.136 While this might have had little practical importance at that time, it has a clear semiotic weight and historical significance in tracing the author of the decree and the ideological project it defended. In this respect, the decree constantly restated that the provisions had the force of law, an aspect that is indicative of the author’s determination to underline their quasi-legislative status, yet this is far from being conclusive of their character. Furthermore, if the texts are to be read as a continuation of the decree of 21 June, they appear to be part of a more complex legal device able to substantially affect the constitutional structure of the state. Addressing this ambiguity in its relation to the historical context by unveiling its semiotic indeterminacy is central to understanding the jurisprudential aspects of the Holocaust

128 O

Comşia, ‘Biologia şi interpretarea istoriei’ (1938) 9 Buletinul Eugenic şi Biopolitic 257, 258. 261. 130 I Făcăoaru, ‘Amestecul rasial şi etnic în România’ (1938) 9 Buletinul Eugenic şi Biopolitic 276, 280–81. 131 ibid 281. 132 ibid 284. 133 ibid 286–87. 134 Tilman-Timon (n 73) 34; Negulescu (n 75) 97. 135 Tilman-Timon (n 73) 41. 136 ibid. 129 ibid

360  Cosmin Cercel in Romania. Before proceeding to an analysis of the intellectual history informing both the form and content of these decrees, it is important to grasp their substance and especially the ways in which the creation of a new legal status relates to criminal law as a means of enforcement. First, as a matter of principle, the decree of 8 August concerning the status of Jews offered a definition of the Jewish population by reference to Mosaic religion.137 As such, those observing this faith, including those whose parents were of Mosaic religion, even if they themselves were Christians, were considered Jews for the purposes of the decree. Also considered to be Jews were all those who were born out of a mixed marriage in which the father was of Mosaic rite. Moreover, women who converted to Christianity at the latest one year before the organisation of the Party of the Nation were deemed to be Jews.138 Atheists, who were of ‘Jewish blood’,139 were also assimilated to this generic status, obviously in complete disregard of their subjective position towards religion. As a measure of caution, the section concluded that those who were part of the Jewish religious communities were considered to be of Mosaic religion.140 We can already note at this stage how a specific caesura is operated within the body politic insofar as a whole portion of the population was created by means of legal discourse. This operation was supported by a series of specious assumptions about the functioning of faith, religion and ethnicity. Furthermore, it is worth taking into consideration the fact that this text referred explicitly to the organisation of the Party of the Nation as a moment endowed with a specific symbolic significance affecting the status of citizen. This generic sub-population created by the law and as an effect of legal discourse is further divided by the decree into three categories according to the date of obtaining citizenship and variable criteria related to local ties, allegiance and service to the country. As such, a first category consists of the Jews ‘who came to Romania after 30 December 1918’.141 The date is of some significance as it related to the administrative and military unification of the Romanian territories that would later be recognised through the Versailles Treaty. The second category was created through the interplay of a number of considerations essentially related to being granted citizenship by means of an individual or collective law prior to 1918, fighting ‘in the line of fire in Romanian wars on Romania’s side’142 or being either injured or distinguished for ‘acts of bravery’143 in these wars.144 It is thus not a surprise that the number of successful naturalisations was extremely scarce,145 a fact that also influenced the relatively privileged status of this category, in so far as its members were limited in number and already had a specific legal and historical tie with the Old Kingdom. The third category blended both legal incoherence and bureaucratic zeal in an attempt to make sure that there were no individual exceptions to the general concept of Jewishness imposed by the law. As such, it consisted of ‘the Jews who [were] not part of either the first



137 Decree

Law concerning the Legal Status of Jews, art 2(a). art 2(f). 139 ibid art 2. 140 ibid. 141 ibid art 4. 142 ibid art 5. 143 ibid art 5(e). 144 ibid art 1, § III. 145 Livezeanu (n 37) 192. 138 ibid

The Law of Blood  361 or the second category’.146 The three categories of Jewishness were subjected to a number of restrictions regarding the exercise of economic activities, access to holding public offices or being employed by state administration. By and large, it is the first and the third categories that bear the full extent of these restrictions. Thus, Jews belonging to these groups could not be public officials, members of the military, members of the professions that had a relationship of any nature with the public authorities, tutors, members of sports associations or even janitors in public institutions.147 At a first glance, the text aimed to efface the presence in the public space of new Romanian citizens of Jewish origin. It rescinded not only the gains of the Constitution of 1923, but also the obligations subsequent to the Minority Treaties of the Versailles Peace.148 It thus aimed to return to the pre-First World War legal status and to reconstruct a sub-population legally and politically distanced from the state, in a condition close to statelessness. The decree went further by instituting a prohibition on these categories being involved in any form of Romanian nationalist media or propaganda of the time.149 Jews belonging to these categories were also exempted from military service, which in their case was turned into a fiscal charge.150 The reason for this prohibition was that military service represented a ‘duty of honour’,151 of which ostensibly those in these categories were considered incapable. In short, this represented an attempt to create various layers of alienation from the state and, by the same gesture, to exclude a whole range of citizens from the public sphere and especially from those activities which were constitutive of the Nation State, such as public offices or the military. This position transpired in a clearer manner from the somewhat odd prohibitions affecting the private sphere. As such, Jews of any category were also prevented from acquiring rural properties of any sort152 – a provision that put them in a similar position to foreigners. Given the importance of agriculture and rural life in Romania – both in terms of economy and national ideology153 – such a provision clearly sought to cut the Jewish population’s ties with the land and country that the new regime was aiming to construct. Estranging the Jews by legal means also involved micro-political forms of intervening within family life. As such, Jewish fathers who were ‘giving to their [Christian] children an education against the religious or national principles’154 were liable to being denied parental authority. Last, Jews were no longer able to adopt Romanian names.155 A special procedure was instituted with a view to contesting or certifying membership of the Jewish community. A claim to this effect could be brought before an administrative court, yet such an action did not have a suspensive effect on any measure taken in accordance with the decree.156 This indicates further the extent to which the creation of this 146 Decree Law concerning the Legal Status of Jews, art 6. 147 ibid art 7. 148 Treaty between the Principal Allied and Associated Powers and Roumania, 9 December 1919 (1921) League of Nations Treaty Series 335. 149 Decree Law concerning the Legal Status of Jews, art 7(e). 150 ibid art 10. 151 ibid. 152 ibid art 1. 153 Livezeanu (n 37) 10–11. 154 Decree Law concerning the Legal Status of Jews, art 13. 155 ibid art 14. 156 ibid art 19.

362  Cosmin Cercel specific status was a process of interpellation aimed at grounding within the law an identity separate from that of other Romanian citizens. As the Ministry of Justice report attested, the aim of this legislation was to secure ‘the legal and political distinction between Romanians by blood and Romanian citizens’,157 guided by the idea that ‘Romania is a country only for Romanians’.158 Non-compliance with the provisions concerning the prohibition of employment and children’s education was an offence punishable by either correctional imprisonment of up to six months or by means of a fine.159 Non-compliance with all other prohibitions was to be punished with imprisonment for six months to two years.160 It is thus important to note the specific operation of the law, consisting on one hand in the institution of a new status affecting membership of the community and social standing, and on the other the sanction mechanism. The specific politico-legal construction of the Jew was thus a discursive effect emerging at the intersection between public law and criminal law categories. According to this process, a person could be forced into becoming a ‘Jew’ within the meaning of the law, and evading this identity was in itself an offence. This was a distinct move away from the classic criminal law position of criminalising an actus reus and a step closer to criminalising status. It was through the operation of the law that this status was ascribed and the criminal sanctions were used with a view to fixing it. The criminal law mechanism was thus key in securing the stated aim of the legislation, of ‘anchoring’161 both the rules of the state and the ‘concept of Jew’.162 Yet the break with former legislation in this respect was not radical. In terms of the uses of criminal law, the offences created by this decree can be read as a continuation of those stated in the decrees of 21 June concerning the Party of the Nation and the protection of the sole and totalitarian order of the Romanian state. Insofar as the aim was to impose and protect the ‘organised Nation’,163 excluding from the political body and public sphere a whole range of citizens was considered to be a first step towards instituting ‘the rule of the Nation through its creative forces and moral impulses’.164 Protecting the rigid nature of these categories was thus a necessary feature for the functioning of this ideological project. This is not the only affinity that the uses of criminal law in this setting have with previous legislation. It could be argued that the whole purpose of the criminal legislation adopted through the interwar period, with its emphasis on expedited measures and the protection of the constitutional order,165 was a precedent in this respect alongside the legislation directed to the protection of public order. Moreover, the constant presence of the state of siege as a mechanism of repression that was located at the interface between criminal law,

157 ‘Report to the Council of Ministers’, 9 August 1940 (n 3) 4082. 158 ibid 4086. 159 Decree Law concerning the Legal Status of Jews, art 21(b). 160 ibid art 21. 161 ‘Report to the Council of Ministers’, 9 August 1940 (n 3) 4081. 162 ibid. 163 ‘Report to the Council of Ministers’, 22 June 1940 (n 104) 3122. 164 ‘Report to the Council of Ministers’, 9 August 1940 (n 3) 4082. 165 C Cercel, ‘The Enemy Within: Criminal Law and Ideology in Interwar Romania’ in S Skinner (ed) Fascism and Criminal Law: History, Theory, Continuity (Oxford, Hart Publishing, 2015).

The Law of Blood  363 a­ dministrative measures and military intervention shaped a specific practical and conceptual fluidity between these spheres. It is in this sense that perhaps a specific military gaze166 found ­quarters in both administrative and criminal law. The logic of enmity embodied in the practice of screening populations, and the specific discriminative assessment of risk and threat specific to military doctrines, were used to support the criminological knowledge informing criminal legislation.167 Herein lies the peculiarity of the decree, as it ostensibly constructed a category of citizens that was to be effectively cast out of the political and public spheres as a measure of protection of the organised Nation. Investigating further the politico-legal construction of these categories is thus crucial for understanding the symbolic mechanisms at work within the law in imposing a relation of ban168 as formative of the wartime politics towards the Jewish population. Creating a fixed category of a sub-population was intended to be a first step in settling once and for all, in a ‘decisive manner’169 the so-called ‘Jewish question’.170 The prohibition of marriage between ‘Romanians by blood’ and ‘Jews’171 furthered the caesura within the body politic of the organised Nation while at the same time signalling the racial components of these policies. The content of the text is relatively straightforward as it limited itself to prohibiting marriage172 and setting out a procedure for nullifying any that had occurred.173 A number of offences related to non-compliance with these provisions by public officers in the exercise of their functions, members of the public acting as witnesses and, of course, ‘Romanians by blood’ and ‘Jews’ attempting to marry,174 were meant to secure the imagined purity of the Romanian organic nation. Accordingly, both attempts and offences against the law were to be punished by imprisonment for one to five years.175 What was perhaps more striking in the wording of the decree and its stated rationale was the reference to the Status of Jews as a legislative device creating the very category of ‘Romanians by blood’.176 The Minister of Justice’s report is illuminating in this respect, as the first decree is considered to be the ‘law of blood’.177 As he wrote, if the status of Jews is articulated as the law of blood, with this law producing the very hierarchy of rights, it is with the same level of necessity that specific rules are imposed, so as to set aside in an absolute manner the foreign influences that would weaken the nation.178

166 I use this term in its original Foucaultian sense. In Foucault’s words, one can approach the ‘gaze’ as ‘the silent configuration in which language finds support: the relation of situation and attitude to what is speaking and what is spoken about’: M Foucault, The Birth of the Clinic (A Sheridan trans) (London, Routledge, 1989 [1963]) xi. 167 M Neocleous, War Power, Police Power (Edinburgh, Edinburgh University Press, 2014) 31. 168 According to Agamben, ‘we shall give the name ban … to this potentiality … of the law to maintain itself in its own privation, to apply in no longer applying. The relation of exception is a relation of ban’: G Agamben, ­Homo Sacer: Sovereign Power and Bare Life (Daniel Heller-Roazen trans) (Stanford, CA, Stanford University Press, 1998 [1995]) 23. 169 ‘Report to the Council of Ministers’ 9 August 1940 (n 3) 4086. 170 ibid 4082. 171 Decree Law for the Prohibition of Marriages Between Romanians of Blood and Jews, 9 August 1940. 172 ibid art 1. 173 ibid arts 4–6. 174 ibid arts 7–8. 175 ibid. 176 ‘Report to the Council of Ministers’, 9 August 1940 (n 3) 4087. 177 ibid. 178 ibid.

364  Cosmin Cercel

Dictatorial Law and Order: Nationalism, Subjection and Fascist Ideology It is indeed the Nation which is the obscure object hidden in the background of this legislation, one that transpires vaguely and implicitly in the text of the law, yet features as the pivotal point of reference in the proceedings and discussions preceding its adoption. The Minister’s insistence on the subject of the Nation highlights the purposive constitutional aim of the decrees as well as their plural political significance. Accordingly, the status of the Jews ‘springs under the impulse of the implacable destiny of the Nation and formulates the law of defence of the Nation’.179 Under the new conditions set out by the regime change of 1938, and by the proclamation of the Party of the Nation that marked the totalitarian turn in Romanian politics, the break with the traditional conception of the political Nation cannot be clearer. Within this framework, ‘the Nation, in the meaning of constitutional law, has become less than a legal community or a political collective, rather it is a spiritual and organic community grounded on the law of blood’.180 It follows that ‘the defence of the blood constitutes the moral basis for the recognition of supreme political rights’.181 At this stage, it is important to note that both the understanding of Nation and race that feature within the politico-legal rationale offered by the Ministry of Justice are grounded in an ethnicist approach that celebrates cultural, linguistic and spiritual identity rather than a clear-cut conception of nation as directly determined by a biological representation of race. This position is indeed paradoxical, in so far as the avowed aim of the legislation was to secure a sharp distinction between ethnic Romanians and Jews as well as to impose ‘blood’ as the uncontested dividing line between these two categories. The vision of organic nationalism informing this ideological stance is that of ‘a union of the lower powers with the higher powers, a concentration of the productive energies in one sole leading will’.182 In this respect, the criteria used in distinguishing and creating the Jew as a legal category indicate an attempt at excluding these categories from the cultural sphere of the Nation. As such, the religious rite was deemed to be ‘a more restrictive criterion than the biological one’,183 while the element of ‘blood’ was understood as ‘lacking a physical content’,184 and was endowed with an ‘ethical’185 one instead. Indeed, both Nation and blood featured as purely Romanian formulas in addressing the so-called Jewish question.186 As such, the Nation appeared as a ‘tight and unitary community’187 founded on a common destiny and Christianity, and grounded in Romanian blood, thus constituting an unfolding biological project. However, as Gruia noted contradictorily: [W]e have considered Romanian blood as a principal element grounding the Nation; but beyond the physical structure of the blood and the inextricable possibilities of mathematical d ­ etermination

179 ibid 180 ibid

181 ibid. 182 ibid 183 ibid

184 ibid. 185 ibid. 186 ibid 187 ibid

4086. 4082. 4083. 4084. 4082. 4087.

The Law of Blood  365 of its purity, we have come to the purely Romanian formula of considering Romanian blood as an ethnic and moral element.188

These conceptual inconsistencies need to be examined, while keeping in mind the specific functional definition of the concept of ‘blood’ set out in this particular context as ‘its determination is achieved only through the discrimination … of the notion of Jew which attains alongside its legal meaning also a political one’.189 Ultimately the racial and biological detour conflated under the concept of blood revealed another legal category – a fiction hiding the mere political decision of excluding from the political and legal community a group of citizens by depriving them of rights. Yet this detour is not necessarily a manipulative strategy or a mere theoretical inconsistency. Rather, the conceptual tensions it fosters and exposes – that between a political understanding of Nation and a biological one – are evocative of deeper structural failures of articulating within the language of the law different discursive and ideological tropes specific to interwar anti-Semitism and right-wing totalitarianism. The aporia at work should be obvious, in so far as the concept of blood is both an extralegal concept founding the discriminatory policies, yet at the same time it is a purely legal concept derived from the very act of legal discrimination. Such inconclusiveness is however emblematic for the totalitarian use of law as a discourse aimed at legitimising and connecting different layers of ideological justification. Following this line, it is important to explore the specific discursive sites in which the tropes set out in the legislation originate, as well as to unearth the law’s embeddedness in a deeper intellectual and material history of ethnicist ideology and praxis of exclusion. Through this survey, it is important to recall how the heterogeneous character of law in this context – itself being at the intersection between public law and criminal law – opens legal discourse to new uses. A first step in this direction is offered by the very constitutional structure in which the decrees were placed and the ideological position they conveyed. As such, despite their declared and effective attempt at changing the existing framework of fundamental rights, the Ministry of Justice insisted on their consistency with constitutional provisions while playing on the ambiguity of the 1938 Constitution in so far as it granted equality before the law in terms of duties and envisioned the establishment of an organic nation. Read through this lens, we can trace a line of continuity at the level of the ideological stance supported by the February Constitution and embedded in the subsequent practice of royal dictatorship. This position is legible from the very enactment of the Constitution which was passed under the slogan of ‘Rescuing Contemporary Romania’.190 For constitutional lawyers of the time the pre-eminence of the Nation as a constitutional subject alongside the King was common knowledge in so far as the 1938 Constitution ‘affirms for the first time the precedence of the Romanian Nation within the state, given its m ­ ajoritarian and creative character’.191 In this respect the emphasis on the Nation is reinforced by its character of being ‘creator of the State’,192 that is, constituting both the historical and formal basis of sovereignty. This explicitly shows the collectivist ethos imbuing this arrangement 188 ibid. 189 ibid. 190 C Iordachi, ‘A Continuum of Dictatorships: Hybrid Totalitarian Experiments’ in A Costa Pinto and A Kallis (eds), Rethinking Fascism and Dictatorship in Europe (Basingstoke, Palgrave Macmillan, 2014) 245. 191 Ionasco (n 79) 346. 192 ibid 347.

366  Cosmin Cercel and the break it produced with the universalism of the previous constitutional settlement as ‘the individualism of the French revolution and that of our Western influenced constitutions of 1866 and 1923 is replaced by the solidarity demanded by the present times’.193 The King himself talked of the creation of a ‘healthy and prosperous community’194 as the aim of the constitutional project. This was to be achieved by raising national consciousness and by protecting the unity of the country. At the same time, the Constitution introduced alongside the Charter of Rights a number of duties. The Nation was not only a subject of constitutional law, but also an object of constitutional provisions that imposed limits and effectively determined its form. This structure was protected by criminal law provisions that found their way into the hierarchy of norms in the constitutional text itself. As such, Romanians, in so far as they were bound by the fundamental law, did not only owe a duty of allegiance to the country,195 but were prevented from questioning the form of government, the redistribution of property, or discussing class struggle.196 In order to further emphasise the gravity of these duties, while at the same time highlighting the extent to which criminal law was used in different settings, the Constitution stated that the death penalty could be imposed in times of war, and in times of peace in the case of crimes against the sovereign, brigandry followed by murder, political assassination or for high treason.197 The duality at work in these opening articles is illuminating: on one hand the Nation was presented together with the King as a central constitutional element, while on the other its constituents, the people, were first interpellated through their duties. Before being citizens endowed with rights, they were subjects of the Nation State and of the King. Such a position was perhaps not entirely new within either legal ideology or political thought in Romania. Rather it resonated with a diffuse and pervasive constitutional imaginary already present before the enactment of the new constitution and following closely the nation-building process during the interwar period, yet it bore testimony to the ways in which the royal dictatorship was less a moment of rupture with state practices and more part of a slow authoritarian drive befalling Romania since the end of the Great War. As Constantin Iordachi perspicuously observed, the Carol II regime, despite being anti-­Legionary in character, ‘appropriated several fascist tropes and trappings in its political style and r­ hetoric’.198 This appropriation was, of course, as any form of cultural intervention, creative as the specific traits of the regime were not only organised around the idea of Nation, but also the state and the King feature as prominent elements that were not present in Romanian fascist ideology except during its incipient years. Yet, this hybrid middle-ground between unalloyed fascism and the authoritarian projects latent during the interwar period can offer us an even deeper insight both into the functioning of the mechanisms specific to dictatorial regimes as well as into the appropriation of the law. Without a doubt, before the fascist takeover in the autumn of 1940, the medium of this encounter was primarily that of the law. True, as it has been noted, the Carol regime



193 ibid

363. 363–64. 195 The Constitution of Romania of 1938, art 4. 196 ibid art 7. 197 ibid art 15. 198 Iordachi (n 190) 244. 194 ibid

The Law of Blood  367 was built on a haphazard amalgamation of fascist tropes, ‘such as the cult of the predestined leader, the single party, corporatism, para-militarism, the socialisation of youth through political mobilisation “from above” and … anti-Semitism’.199 Yet, for obvious reasons, these positions are doubled and transformed by the centrality of the state and the figure of the King. As such, the monarch was ‘celebrated as a charismatic leader who would bring salvation to the national community’.200 It is thus the dual body of the dictator King, that of being both a charismatic leader in the sphere of politics and at the same time a sovereign from a constitutional and legal standpoint that renders the law open to fascist and organicist ideology without any form of mediation. The ambiguities highlighted above with reference to the criteria used in defining Jewishness or ‘blood’ are testimony to this confusion between Movement and State, and among law, politics and conflict. The figure of the sovereign as depicted by the official propaganda was itself evocative of this trend. As such the King was presented ‘as a modernizing monarch, a protector of national culture, a legislator, a military commander, a predestined leader and a guarantor of law and order’.201 Carol II’s posturing as a legislator and a military leader were grounded in both the King’s support for the Criminal Code of 1936 and the harsh repressive policies set out from 1933. There is thus a clear line of continuity between the protection of constitutional order already present in the criminal legislation, the presence of the military in both public and legal life as part of the heterogeneous mechanism of the state of siege, and finally the full assertion of totalitarianism in the last year of the dictatorship. Moreover, while the eugenicist project did not find a clear and unmediated reflection within the realm of law, it was part of a wider epistemic turn opened by the very operation of the legal political machinery of the interwar period. Within the structure of this epistemic apparatus, aimed at tackling through a series of institutional, political and discursive strategies the specific questions raised by the plural, multicultural, class-divided reality of the interwar Romanian state, we can find a specific coupling between eugenics and law as forms of grounding the Nation in both politically and biologically fixed categories. Yet where biology seemed to fail in securing an uncontested formula for the purity of Romanian blood or indeed race,202 law was able to deliver an operational, albeit paradoxical, conceptual framework supported by criminal law sanctions.

Conclusion On 6 September 1940, Carol II abdicated203 after entrusting Marshal Ion Antonescu with unrestricted powers.204 During the following years Romania joined Germany in the war against the USSR and the Allies and wrote one of the darkest chapters in modern history.

199 ibid 249. 200 ibid. 201 ibid. 202 Solonari (n 26) 69. 203 See ‘King Carol II’s Manifesto to the Romanians of 6 September 1940’ in I Scurtu, România şi marile puteri 1933–1940: Documente (Bucharest, Editura Fundaţiei România de Mâine, 2000). 204 Decree of 6 September 1940 investing the President of the Council of Ministers with Full Powers and regarding the Royal Prerogatives, MOf No 208, 8 September 1940.

368  Cosmin Cercel For a short period of time, between September and January, the country was ruled by a dual dictatorship in which power was distributed between a fascist-led government and the Conducător,205 replicating to some extent the distinction between ideology and repression present in the former constitutional setting. The persecution of the Jews took at this time both illegal and state-sanctioned forms, insofar as the fascist movement was militating for direct action. The short-lived alliance between the military and the Iron Guard ended with an open conflict in which the military quelled the fascist rebellion. At the end of this struggle, a new regime emerged, in which the state power was concentrated in the hands of the military leader. Until the insurrection of 1944 when Antonescu was deposed, Romania turned against Nazi Germany and joined the Allied war effort, no fewer than 34 anti-Jewish pieces of legislation – most of them Decree Laws – were issued. This legislation was devised to support the process of so-called ‘Romanianisation’, that is, the nationalisation of Jewish assets and the limitation of Jewish participation in the national economy.206 Within this framework, numerous decrees used their own definitional strategy in clarifying the status of Jews.207 However, the Decrees of 8 August 1940 remained in force until being abrogated from the date of their publication by a statute of 19 December 1944. During this time, they represented a generic framework to which various administrative and criminal law measures referred in the absence of a special provision, a droit commun of subjection. As foreign observers hoped at the time of their enactment, ‘[the decrees’] vague terminology, combined with traditional corruption of local bureaucracy would mitigate the radical legal provisions’.208 Yet these observations, while factually true to some extent, do not deprive this legal framework of its ideological impact and politico-legal significance just as their uneasy enforcement does not ultimately mitigate the fact that as a matter of law a whole category of citizens was excluded collectively from the legal community. The ambiguous legal nature of these decrees that transpires in their form – are they acts of authority in the exercise of executive powers or of legislative powers? – and substance – do  they conceal a constitutional framework? – is exemplary for the uses of law within modern totalitarian ideology. It thus signals a symbolic uncertainty in which it could be tempting to read ‘a return to an original pleromatic state in which the distinction among the different powers (legislative, executive, etc) has not yet been produced’.209 Yet, by bringing together both constitutional ideology and criminal law repression and conflating them in a formal aporia, what is exposed in this operation is the sovereign command in its dual ­meaning, that of being force of law and at the same time administrative and military order, just as it is an echo of the diffuse dominant ideology.

205 Decree of 14 September 1940 through which the Romanian State becomes a national legionary state, MOf No 214 bis, 14 September 1940. 206 ŞC Ionescu, Jewish Resistance to ‘Romanianization’, 1940–1944 (Basingstoke, Palgrave Macmillan, 2015) 38. 207 ibid 39–41. 208 ibid 37. 209 Agamben, State of Exception (n 5) 6.

Conclusion: Investigating Ideology and Criminal Law in Legal History STEPHEN SKINNER

The chapters in this volume have offered a range of perspectives on the possible c­ onnections between ideology and criminal law under Fascist, National Socialist and authoritarian regimes. As they have all proposed their own historical and historiographical conclusions on the areas of criminal law or criminal justice examined, the aim here is not to try to essentialise them to a set of key points, but to offer a brief outline of some of the main thematic and methodological connections. This is intended to highlight some elements of common ground and to indicate some potential foundations for future studies. Part I comprises six chapters engaging with questions of ‘Beliefs, Foundations and Identities’. The first three chapters, on the concept of justice under Fascism (1) and the nature of law under National Socialism (2 and 3), argue that, rather than being grounded solely in repressive force or, in the German case, what has retrospectively been deemed such an unacceptable abuse of law that it must in fact be considered non-law, both of these regimes constructed their identities around their own understanding of the importance of law and a particular concept of justice. Unpalatable as it may seem to consider either system in such terms, the essential message of these chapters is that the regimes’ own perspectives must be considered, so as to start to perceive the deeper frameworks of belief that contributed to the regimes’ formation and operation. This involves examining the fundamental aim of Fascism to construct itself as a ‘regime of justice’, rhetorically, legally and architecturally, and therefore seeking to grasp its reconceptualisation of justice as an instrument of worldchanging power. More problematically, the chapters on National Socialism point not to the regime’s exceptional or temporally unique nature in legal terms, but its adherence to a form of legality and thus the spectral question of human agency and moral responsibility in law’s deployment. The next two chapters (4 and 5) on Nazi criminal justice and authoritarian criminal law in transnational perspective both highlight how these regimes had much in common with preceding and contemporaneous ideas about, and uses of, criminal law under other systems of government, both authoritarian and democratic. These two chapters introduce an essential methodological step, echoed in subsequent chapters, to show how the apparent ideological characteristics of law in one system can only be fully grasped through a comparative lens. Importantly, the last two chapters in part I (5 and 6), both argue that the use of criminal law, and systemic identities, must be considered in relation to uses of other branches of law if ideological factors are to be fully elucidated. This includes both the erosion of the separation of powers in constitutional terms that permitted ­totalitarian uses of ­criminal law

370  Stephen Skinner to be unleashed (5), and the shift to criminal rather than a­ dministrative measures under South African apartheid to enforce state ideology and gradually constitute an authoritarian regime (6). Part II on ‘Courts, Lawyers and Repression’ highlights the role of courts and the significance of the legal profession in relation to the formulation and implementation of state ideology, as well as resistance to it. The first two chapters (7 and 8) address the courts and judges under Italian Fascism and how that regime was able to rely on a system that purportedly respected the rule of law. By examining the politicisation of economic and common crime by the Special Tribunal for the Defence of the State (7), and the complicity between the judiciary and the Mussolini regime (8), both chapters underline how the courts were means by which Fascist ideology could be implemented, both through overtly political judgments and through deference to the regime. Similarly, the following two chapters (9 and 10) highlight the complicity of judges and lawyers with the regimes in wartime Norway and Francoist Spain. In the case of National Socialist occupied Norway, this was partly due to a formal adherence to the law irrespective of its ideological content (9), and in Francoist Spain this was partly due to the socio-political values that many lawyers shared with the NationalCatholic regime (10). The legal profession’s role was not always the same though, and two of the chapters in part II include evidence of some judicial resistance to the Fascist (8) and National Socialist authorities (9). Moreover, two chapters show how some ­(practising and academic) lawyers held and sought to promote values that were unacceptable to their countries’ authoritarian regimes (Francoist Spain in 10 and  authoritarian Japan in 11), leading to repressive measures against them. As the last chapter (11) demonstrates in the context of interwar Japan, the theoretical formulation of criminal law’s conceptual order could support or resist repression, and could become the crucible in which a regime’s ideological commitments were tested and demonstrated. The chapters in part III on ‘Development, Expression and Tensions’ address questions of substantive criminal law under three different regimes, namely Italian Fascism, and authoritarian Brazil and Romania. They all demonstrate the importance of analysing criminal law, and of seeking to excavate its ideological dimensions, with reference to longer, wider and deeper historical, comparative and systemic factors. The first three chapters (12, 1­ 3 and 14) examine the 1930 Italian Penal Code (the ‘Rocco Code’) introduced under Fascism and make similar interconnected arguments. They each recall that grasping the significance of the Rocco Code needs to take into account both its roots and continuities with preceding criminal laws in Italy, and two of them (12 and 14) address the significance of comparison with other systems (thus sharing an approach with chapters 4 and 5). These three chapters argue that while temporal and transnational comparison can point to common ground across periods and systems, it can also bring to light the Rocco Code’s distinctive attributes that can be linked with Fascist ideology. The last two chapters in part III move the discussion beyond Italy to Brazil and ­Romania. The penultimate chapter (15) situates Brazilian criminal law under the Vargas regime in relation to international theories about political crime and the regime’s response to it, ­focusing on the implications of forms of law (codified or non-codified). As with the first three chapters in this part (12, 13 and 14), this chapter highlights the importance of transnational connections, but also emphasises the contingent effects of local political objectives

Conclusion  371 and repressive practices. The final chapter (16) analyses the connections between state ideology and criminal law by investigating them in the broader political and legal landscape of authoritarian Romania during the Second World War. Like the other chapters in this part it examines specific ideological developments at the national level, but the key methodological step here is to investigate the deeper significance of criminal law in its connection with the constitutional order, the ideological construction of the nation and citizenship, and the ways in which forms of law reflected deeper ambiguities in the locus of governmental power. In so doing, the chapter develops an integrated theoretical and systemic analysis that shares an approach similar to that adopted in chapter 14, as well as chapters 1, 2, 5 and 6 in part I. Ideology, as discussed in the Introduction, is an elusive and contested concept, but as these chapters show it can usefully signify the beliefs, values, political programmes and world-views that informed and influenced the content and application of criminal law under the various regimes considered. Fascist, National Socialist and authoritarian regimes seized, held and exercised power in specific contexts through a combination of law and politics, as well as individual, collective and institutional conduct. Seeking to identify and explore the ideological factors that were foundational, or at least influential, in these regimes’ formulation and uses of criminal law in particular cannot be undertaken mono-dimensionally: aspects of culture and symbolism; mentality and practice; comparison across periods and systems; intra-systemic and cross-disciplinary analysis; as well as the roles of legal professionals and institutions all need to feed into the investigatory process. As these chapters show, this can be done in various ways, and much remains to be done. The history of these regimes, including their origins, their aims, claims and practices and their legal dimensions continue to demand critical attention – and in the volatile socio-political conditions that are apparent around the world today, this is a more pressing concern than ever.

372

INDEX Aa, Simon van der, 81, 82, 88, 94, 99 abortion, 291, 358 Accetti, Carlo, 31 Adrian VI, Pope, 16, 20 adultery, 237, 238, 286, 292, 293, 294 Agnelli, Giovanni, 151–2 Alacaraz, José Juan, 212 Almeida, Candido Mendes de, 97, 99 Altavilla, Enrico, 309 Althusser, Louis, 2, 346–7 Alves, Thomas Jr, 326 Ambrose, Saint, 30 anarchism, 207, 224, 325, 327–8, 329, 330, 341 Antonescu, Ion, 352, 367, 368 apartheid: authoritarianism and, 125–6 Convention, 138–41 personal responsibility, 139 crime against humanity, 136–42 embargoes, 137 ICC Statute, 141–2 ideology and, 143, 370 inter-racial marriage, 127–8, 130 objectives, 125–6, 142 parliamentary sovereignty, 129 period, 125 Riotous Assemblies Act (1960), 133 Rivonia trial (1964), 131–2 Sharpeville Massacre (1960), 132–3, 137 South African criminal law authoritarian crackdown, 132–4 classification, 5, 125–43 no procedural safeguards, 134–6 outset, 126, 127–32 Special Committee on Apartheid, 138 specialised courts, 130 Terrorism Act (1967), 133, 135 torture, 138 two faces of law, 127–32 United Nations and, 136–40 Appiani, Giovanni, 15–17, 20, 21, 31, 177–8 Aquarone, Alberto, 165 Araújo, JA Correa de, 336 Araújo, João Vieira de, 331 architecture: Italian aesthetics of justice, 9, 22–31, 298 state art, 23

Arendt, Hannah, 346 Argentina, 189, 335 Arisawa, Hiromi, 237 Aschaffenburg, G, 108 Association Internationale de Droit Pénal (AIDP), 80–1 Assonime, 151 Auschwitz, 34, 35, 37, 40–1, 44–9, 55, 56 Austin, John, 51, 128 Austria: 1935 Berlin IPC and, 98 eugenics and, 103 penal codes, 281 recidivism, 264, 269 Versailles Treaty and, 349 authoritarian criminal law: ciminology see criminology decay of legal theory, 229–30 Italy see Italian criminal justice; Rocco Code Japan see Japan interwar Nazism see Nazi criminal justice Norway see Norway under Nazi occupation Romania see Romania South Africa see apartheid; South Africa Spain see Spain under Franco unicity, 229 Azzolini, Vincenzo, 154 Bakunin, Mikhail, 330 Bardi, Pier Maria, 26 Barros, Robert, 189 Bassani, Alessandra, 5, 147–64 Bastien, Jean, 91, 99 Bates, Sanford, 88, 93–4, 99 Bauman, Zygmunt, 35 Beauvoir, Simone de, 292 Beccaria, Cesare, 230, 245, 288, 330 Belgium: 1830 Constitutional model, 353 1935 Berlin IPC and, 92, 94, 98 judges in Nazi occupied Belgium, 205 prison reform, 102 Berlin Treaty (1877), 356 Bilbao Eguia, Esteban, 216 Binding, Karl, 247 Bing, Geoffrey, 91, 99, 100 bio-criminology, 107, 115, 121, 259, 264

374  Index biopolitics, 103, 120, 358–9, 364–5, 367 Birkmeyer, Karl von, 244 Black Shirts, 183 Boan Callejas, César, 211 Bobek, Michal, 191 Bolivia: 1935 IPC and, 98 Braga, Vieira, 322 Branco, Eurico Castello, 334 Branting, Sonja, 99 Brazil: 1st Republic, 327–8 1935 Berlin IPC and, 94, 97, 98 1937 Constitution, 332, 336 custodia honesta, 324 death penalty, 332, 333, 335–6, 337, 339 état de siège, 332 independence, 325 National Security Tribunal, 321–2, 324, 332, 334, 338 penal codes, 322 political offences, 6, 321–44 1822–89, 325–6 1890–1930 anarchism, 325, 327–8 1930–36, 324–32 1936–40, 332–42 1937–39 national security legislation, 332–5 1939–43 Penal Code, 335–42 anarchism, 325, 327–8, 330, 341 communists, 329–32 double levels of legality, 332–42 exclusion, 322, 323 historical contingency, 342–4, 370–1 slavery, 326 Vargas regime, 6, 321–44, 370 WWII, 340 Bruland, B, 201–2 Buchenwald, 35, 40, 42 Bucur, Maria, 358 Bukharin, Nikolai, 237 Bulgaria: 1935 Berlin IPC and, 89 Versailles Treaty and, 348, 349 Bumke, Erwin, 77, 81, 94, 97–8, 99–100 Cabedo Torrens, Jesús, 212 Caesar, Julius, 16 Calamandrei, Piero, 149, 150, 170 Calzini, Raffaele, 27, 28–9 Campigli, Massimo, 29 Campos, Francisco, 322, 332, 334–5, 336, 339, 340–2 Canada: 1935 IPC and, 89, 94 Cantoni, Ambra, 5, 147–64 Carol II, King of Romania, 345, 346, 348, 350, 351, 352–5, 366–7 Carrà, Carlo, 29

Carrara, Francesco, 279, 280, 323, 332, 338, 339–40, 343–4 Caruso, Advocate General, 307 Carvalho Mourão, João M de, 327–8 castration: criminals, 94–7, 103 Catholic Church: eugenics and, 96, 103 Spain under Franco, 4, 207, 213, 220, 223, 224, 370 Cavallo, Riccardo, 5, 165–86 Cercel, Cosmin, 6, 345–68 CERD, 137 Channel Islands: anti-Jewish measures, 201 Charles Albert, King of Sardinia, 168 Chile: 1935 IPC and, 88, 98 judicial failure, 189, 190 China: 1935 IPC and, 89, 94 Cicero, Marcus Tullius, 29, 31 Cigolini, Francesco, 184 Cisneros, Luis, 212 Classical School: 1930s–40s criminology and, 118, 123 Brazil and, 325 Italy, 258, 259, 286 Japan and, 230–3, 239, 241, 242–3, 245–8, 251–2 Colarizi, S, 149 Coll, Jorge, 335 Comintern, 236 communism: Brazil, 321, 325, 329–31, 334 Francoist Spain, 207, 218, 223, 224 interwar UK, 314 Italy, 10, 147, 173 Japan, 235–6, 238, 239 Romania, 350 South Africa, 126, 141, 142 Comşia, Ovidiu, 358–9 Conejos, Gonzalo, 212 Confindustria, 151, 153 Confucianism, 244 Conti, Primo, 29, 30 contractualism, 14, 230–1 corporatism, 19, 367 Cortes Álvarez, Alvaro, 211 Costamagna, Carlo, 177 Craven, Cecely, 88 Crespo Azorón, Evaristo, 221 crimes against humanity: apartheid, 127, 136–42 definition, 141 Nuremberg MIT, 140 crimes of passion see emotions criminal law see also specific countries and ideologies

Index  375 classification, 5, 125–43 ideology and, 3–6, 369–71 criminal responsibility: 1930s–40 criminology, 114 Italy: crimes of passion, 278, 281, 283, 286, 297 Takikawa criminal law theory, 241, 249–52 criminology: 1870s–1930s, 105 1930s–40s assessment, 122–4 constitutional fallout, 116–22 Nazi/Fascist criminal law and, 5, 105–24 plurality of discourses, 108–12 positivist differences, 112–16 rupture v continuity, 105–8 separation of powers, 117, 124, 369–70 decay of legal theory, 229–34 Takikawa, 240–52 Curran, Vivian, 229 Czechoslovakia: 1935 Berlin IPC and, 89, 92, 98 eugenics and, 96 Romania and, 352 Versailles Treaty and, 348 Dachau, 35 Dahm, Georg, 84, 108–9, 119, 120 D’Amelio, Mariano, 17, 167, 178–80, 183, 185 Dandō, Shigemitsu, 242 Darwinism, 242 Dazzi, Arturo, 29 De Cesare, Nicola, 28 De Felice, Renzo, 165 De Francisci, Pietro, 20, 172, 179 De Gasperi, Alcide, 10 de Klerk, FW, 140–1 De Marsico, Alfredo, 330 death penalty: apartheid South Africa, 134 Brazil, 332, 333, 335–6, 337, 339 Italian abolitionism, 279 Italian Fascism, 15–16, 156, 158, 319 Special Tribunal for the Defence of the State, 18, 150, 160–1 Napoleonic Code, 289 Nazi criminal justice, 85–6, 336 occupied Norway, 195, 198–9, 200, 202, 203 Romania, 366 Spanish lawyers under Franco, 212–13, 224 DeCoste, F, 75 Delaquis, Ernst, 81, 96 Delierneux, Adolphe, 92, 93, 94 Delitala, Professor, 307 Della Valle, Lelio, 16 Delogu, Tullio, 310–11

Denmark: 1935 IPC and, 89, 94 Nazi occupation, 195 Depretis, Agostino, 168–9 Dettori, Domenico, 25 Di Vico, Pietro, 304, 307 Dobrogeanu-Gherea, Constantin, 349 Drei, Enrico, 25, 30 Drost, Heinrich, 109, 117–18 Drummond, José de Magalhães, 334 dual track system, 89–90, 110–11, 204, 263, 270, 272, 274 Dugard, John, 128 Dworkin, Ronald, 52–5 economic crimes: Italian Fascism, 151–7, 163 Ellero, Pietro, 279 emotions: Italian criminal justice and, 6, 277–98 Cienfuegos case, 278, 284–5 continuities, 278 gender, 278, 287–96 honour crimes, 291–6 infanticide, 287–91 irresistible force, 281–3 pre-unitarian codes, 281–3, 291–3 Rocco Code, 278, 284–7, 289–91, 297 Zanardelli Code, 278, 283–4, 285, 289, 295, 297 Italian legal scholarship, 279–80 law and, 277–8 Engels, Friedrich, 2 England see United Kingdom Enlightenment, 230, 234, 301 equality before the law see legal equality espionage, 147 Estonia: 1935 IPC and, 94 Ethiopia: Italian invasion, 153 eugenics, 86–7, 94–8, 103, 358, 367 euthanasia, 35, 40–1, 42, 50, 97 Exner, Franz, 93, 118 Făcăoaru, Iordache, 359 false imprisonment, 158, 314 Fani, Cesare, 262, 263, 271 Fascism: decay of legal theory, 229–30 generic Fascism, 3 ideology, 3 Italy see Italian criminal justice; Italian Fascism Japan see Japan interwar unicity, 229 Ferdinand I, Emperor, 16–17, 20 Ferri, Enrico, 107–13, 115–16, 118, 119, 121, 242, 245, 265, 267, 272, 274, 280, 284 Ferriani, Lino, 279–80, 287

376  Index Ferrucci, Jerome, 92–3, 99 Feuerbach, Anselm von, 123–4, 230, 240, 245, 247 fiat iustitia et pereat mundus, 15–22 fiat iustitia ne pereat mundus, 21–2, 31–2 Fichera, Francesco, 25 Fichte, Johann Gottlieb, 21 Finland: 1935 IPC and, 89, 94 Finnis, John, 54 Fontana, Lucio, 29 Fraenkel, Ernst, 35, 62, 63–6, 69, 71, 72, 73, 74, 75, 120, 189 France: 1935 Berlin IPC and, 89, 92, 94, 96 anti-Jewish legislation, 190 architecture of justice, 9 Declaration of the Rights of Man, 296 Enlightenment, 301 eugenics, 96 family and property, 292 Free Law movement, 118 legal model, 260, 261, 263, 303 Napoleonic Code, 282, 292 occupation of Italy, 260 penal code, 281–2 penal internationalism and, 80 prison reform, 102 recidivism, 269 Revolution, 292, 297, 308 Romania and, 352 Francis II, Holy Roman Emperor, 281 Franco, AA, 328 Francoism see Spain under Franco Frank, Hans, 84, 86–7, 101–2, 114–15 Fraser, David, 5, 33–57, 75, 229 free association: Italian courts under Fascism and, 182 Free Law Movement, 232–3, 240, 241, 246, 251–2 freemasons, 207, 218, 223 Freisler, Roland, 84–6, 87, 101–2, 114 Freudenthal, Berthold, 249 Fuller, Lon, 55, 73, 74, 253 Hart-Fuller debate, 62, 66–70, 75 Funi, Achille, 29 Futurism, 25, 29 Garau, Salvatore, 3 García Corachán, Manuel, 209–10, 212, 214 García Ortiz, Miguel, 211 García Torres, Enrique, 212 Garfinkel, Paul, 6, 257–76 Garland, David, 231 Garofalo, Raffaele, 105, 245, 280 gender: French Revolution and, 292

Italian honour crimes and, 278, 287–96 adultery, 292 infanticide, 287–91 male violence, 291–5 pre-unitarian codes, 291–3 reinventing honour, 295–6 Rocco Code, 294–6 property and, 292 Gentile, Emilio, 9, 163 Gentile, Giovanni, 14, 22 Germany: Free Law movement, 118 holocaust see Shoah inter-war criminology, 108–12 July 1944 conspiracy, 200 Nazism see Nazi criminal justice; Nazism penal internationalism and, 80 penal model, 264 Tatbestand, 234–5, 253 tripartite theory, 234, 241, 247, 253 Weimar penal reform, 78, 80 Giles Samson, Marika, 5, 125–43 Gioia, Melchiore, 295 Giurati, Giovanni, 298 Goebbels, Joseph, 100 Goga, Octavian, 351–2 Goicoecha, Antonio, 215 Gomez, Eusebio, 335 Gómez González, Mariano, 214 Gramsci, Antonio, 2 Grandi, Dino, 167, 174–7 Gratian, Emperor, 30 Graver, Hans Petter, 5–6, 187–205 Greece: 1935 IPC and, 94, 95 Gregory XVI, Pope, 283 Griffin, Roger, 3 Griselli, Italo, 30–1 Gross, Raphael, 34, 50, 52 Grotius, Hugo, 253 Gruia, Ion, 348, 353, 364–5 Grünhut, Max, 109 Guarneri, Felice, 151, 153, 154 Guinea: Apartheid Convention and, 140 Gürtner, Franz, 77, 82–4, 85, 86, 87, 101–2 Gütt, Arthur, 94, 96 habeas corpus, 134 Hague Convention (1907), 188 Hall, Jerome, 109, 122–3 Hamel, Gerard van, 80 Hart, HLA, 42, 51, 52 Hart-Fuller debate, 62, 66–70, 75 Hatoyama, Ichirō, 237 Hegel, Georg, 14, 21–2, 31

Index  377 Himmler, Heinrich, 38–9, 40, 44, 46, 48, 50 Hitler, Adolf: 1935 Berlin IPC and, 98 criminology and, 120 judiciary and, 200 legality of orders, 41, 42, 44, 46, 48, 50, 52 Norway and, 187 rise to power, 68 Hoess, Rudolf, 41, 42 Holocaust see Shoah honour crimes: Italy: gender stereotypes and, 278, 287–96 infanticide, 287–91 overview, 6, 287–96 pre-unitarian codes, 291–3 reinventing honour, 295–6 Rocco Code, 294–6 Howard League for Penal Reform, 88, 89, 100 Hungary: 1935 Berlin IPC and, 89, 94, 103 Versailles Treaty and, 348, 349 Hungria, Nélson, 322, 323, 330, 331, 333, 334, 336–7, 339–40, 343 Iászi, Oszkár, 350 Ibañez-Rizo, Ernesto, 217–18 ideology see also specific countries and ideologies concept, 1–3 criminal law and, 3–6, 319–20, 369–71 indeterminate sentencing, 111, 117 India: 1935 IPC and, 88 infanticide, 287–91 Ingenieros, Josè, 105 International Association of Penal Law, 272 International Bureau for the Unification of Penal Law, 91 International Congress of Criminal Anthropology, 79 International Congress of Criminology (Rome, 1938), 114 International Covenant on Civil and Political Rights (ICCPR, 1966), 137 International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966), 137 International Criminal Court: apartheid and, 141–2 International Penal and Penitentiary Commission (IPPC), 79, 80–1, 82, 87–8, 100 International Penal Congress, 264, 271 International Penal Congress (1925), 272 International Penal Congress (1935, Berlin): aftermath, 98–100 context, 81–2

controversies, 88–9, 102–3 criminal eugenics, 94–8, 103 delegates, 77, 88–9 double-track system, 89–90 Frank’s speech, 84, 86–7 Freisler’s speech, 84–6 funding, 82 Gürtner’s speech, 82–4 international criticism, 98–100 monster trials, 90–1 Nazi Berlin and, 87–98 Nazi continuity thesis, 101–2 Nazi non-law and, 100–1 Nazi speeches, 82–7 law and order, 82–4 Volk and race, 84–7 organisation, 87–9 overview, 5, 77–104 political ideology and criminal law, 103–4 records, 89 security detention, 90 sterilisation/castration of criminals, 94–7 transnational debate, 102–3 transnational networks, 79–82 treatment of prisoners, 92–4, 100, 102–3 tumultuous conclusion, 97–8 youth justice, 90 international penal reform: networks, 79–82, 271 International Penitentiary Congress (London, 1925), 81 International Penitentiary Congress (Prague, 1930), 81, 89 International Union of Penal Law, 112 Internationale Kriminalische Vereinigung (IKV), 80–1 Iordachi, Constantin, 366 Italian criminal justice: 1803 Austrian Code, 261 1819 Sicilian Criminal Code, 270 1859 Sardinian Code, 283, 289 1889 Zanardelli Code abortion, 291 Brazil and, 334 crimes against Fatherland, 184 crimes of passion, 278, 283–4 honour, 295 infanticide, 289 legality principle, 275 male violence, 293 recidivism, 261–2, 270–1 replacing, 265 Rocco Code and, 257, 263, 275 state use of force, 303 1930 Penal Code see Rocco Code

378  Index 1935 Berlin IPC and, 89, 94, 103 1941 Grandi reforms, 174–7 anti-Jewish legislation, 190 architecture of justice, 9, 22–31, 298 authoritative contemporary commentators, 177–80 cases, 181–4 common crimes, 158–62 concept of justice, 5 continuities, 324 criminology, 106, 112–16 constitutional fallout, 116–22 death penalty, 15–16, 18, 150, 156, 158, 160–1, 319 dual track system, 263, 270, 272, 274 economic crimes, 151–7 emotions and, 6, 277–98 eugenics, 96, 103 fiat iusticia et pereat mundus, 15–22, 31–2 honour crimes see honour crimes infanticide, 287–91 internal exile, 130 judges see judiciary (Italy) law transforming reality, 147–51 legality principle, 18 Napoleonic Code, 259, 260, 261 adultery, 292 gender equality, 292–3 infanticide, 289 male violence, 292–3 Oviglio reforms, 170–2 Piedmontese Code (1859), 260 positivism, 106–7, 259, 265–6, 267 recidivism see recidivism regime of justice, 17–20, 25, 29, 369 repression strategies, 10–12 Rocco reforms, 172–4 role of ideology, 3 rule of law and, 32, 370 security detention, 90, 110–11 sentencing policy, 160–1 special jurisdictions, 180 Special Tribunal see Italian Special Tribunal for the Defence of the State strike actions, 182 use of force see state use of force vilification crime, 183–4 Italian Fascism: Black Shirts, 183 currency policy, 151–7, 163 dual political order, 150, 162 education of masses, 163 false bottom regime, 149, 163 ideological purges, 229 image of motherhood, 160 invasion of Ethiopia, 153

Japan and, 236 new man, 22, 296 political conception of individual and society, 120 squadristi, 11, 12, 162 trade, 151–7 values, 297, 298 Ventennio, 9 Italian Special Tribunal for the Defence of the State: common crimes, 148, 158–62 creation, 148, 150 death penalty, 18, 160–1, 181 dual political order, 150–1 economic crimes, 151–7, 163 expanding jurisdiction, 5, 148, 158–9 historiography, 148 influence, 149 pedagogical function, 161 political court, 181 political crimes, 147–8 procedures, 161–2, 163 role, 158–9, 181, 324 sentencing, 160–1, 181 symbolic power, 149 test-bed of Fascism, 166 Italy: 1930 Penal Code see Rocco Code civil law tradition, 234, 303 Classical School, 258, 259, 286 criminal law see Italian criminal justice Fascism see Italian Fascism French legal model, 303 inter-war criminology, 108–12 Japan: 1935 IPC and, 89 Classical School and, 230–1, 239, 241, 242–3, 245–8, 251–2 family system, 238, 239 Free Law Movement, 232–3, 240, 251–2 interwar see Japan interwar Modern School, 230–1, 241, 242–3, 246, 248, 251, 252 natural law and, 253 Japan interwar: adultery, 237–8 criminal law and Fascism, 229–34 fascist allies, 236 intellectual context, 235 legality principle and, 233 lèse-majesté, 239 Marxism, 235–8, 240 parricide, 237–8 purges of lawyers, 230

Index  379 Takikawa case, 6, 230, 234–54 attack on dissent, 234–40 Takikawa criminal law theory, 240–52 concept of persons, 245–6 criminal responsibility, 249–52, 253 norm theory, 247–8 offenders by conviction, 242–5 values, 370 Jesuits, 184–5, 202 Jews: Channel Islands, 201 France, 190 German Civil Code and, 191 holocaust see Shoah Italy, 190 Netherlands, 201 occupied Norway, 188, 197–8, 201–3 Romania, 6, 345–6, 347, 351–2, 356–63 anti-Jewish legislation, 356–63 definition of Jew, 360–1 Jiménez de Asúa, Luis, 107, 109, 116, 123, 226 Jorgulescu, Nicolas, 97 Joseph II, Emperor, 281 judiciary: failures in authoritarian states, 190–1 Italy see judiciary (Italy) Nazi Germany, 200 occupied Belgium, 205 occupied Norway, 189–90, 194, 195–7, 198, 205, 370 resistance, 195–6, 203, 370 judiciary (Italy): associations, 169 cases, 181–4 Fascism and, 5, 165 controlling personalities, 177–80 historiography, 165–7 objectives, 179 Grandi reforms, 174–7 guidelines, 180, 181 history of political relations, 168–70 independence, 168, 169, 170–7, 185–6 legal interpretation, 180 moralism, 169 Oviglio reforms, 170–2, 173, 180 Rocco reforms, 172–4 servility, 184–5, 370 values, 181–4 Justinian, Emperor, 30 Kant, Immanuel: facts and legal systems, 232 Italian Fascism and, 15–16, 22, 301 legality and morality, 234, 240, 250 legality principle, 51, 245

let justice rule, 20–1 morals and politics, 21 Perpetual Peace, 20–1 right and justice, 17 subjectivity, 1 Kantorowicz, Hermann, 232–3, 248 Katsumoto, Kanzaburō, 235 Kelsen, Hans, 51, 52 Kerrl, Hanns, 85 Kirchheimer, Otto, 121, 200 Koch, Ilse and Karl Otto, 42–3 Kogon, Eugen, 42–3 Kreis, Wilhelm, 26–7 Kristallnacht, 73 Lacchè, Luigi, 5, 9–32, 148 Lacey, Nicola, 107, 250 Latvia: 1935 IPC and, 98 Lavis, Simon, 5, 59–76 Le Corbusier, 28 leader principle (Führerprinzip), 49, 50, 55, 69, 120 League of Nations, 80, 153 legal equality, 63, 232–3, 240, 241, 245, 246, 252, 253, 254, 356, 365 legality principle: 1930s–40s criminology and, 117 American criminology, 122–3 authoritarian criminology and, 123–4 Feuerbach, 245 Italian courts under Fascism and, 182 Japan and, 231, 239, 240 Nazi justice and, 83, 115, 116, 119–20, 233 Shoah, 33–57 rule of recognition, 35, 42, 51 Takikawa on, 244 Leoni, Francesco, 25 Libera, Adalberto, 23 liberal democracy: threats, 4 Lie, Jonas, 199–200 Liepmann, Moritz, 243 Liszt, Franz von, 80, 84, 107, 115, 118, 119, 121, 123–4, 230, 249 Lithuania: 1935 IPC and, 94, 98 Locke, John, 230–1 Lombroso, Cesare, 79, 113, 118, 121, 230, 242, 258, 259, 265, 274 Longhi, Silvio, 96, 184 Longinus, Gaius Cassius, 16 Loureiro, Osman, 339–40 Lublin, 40–1 Lukes, Steven, 246 Lustgarten, Laurence, 104 Luther, Martin, 16 Luzzati, Luigi, 262, 263, 264–5, 271 Lyra, Roberto, 322, 330

380  Index Macajone, Fiorentino, 157 Machado, José d’Alcântara, 322, 335–8, 340 Machado, Raul, 334, 343 Maggiore, Giuseppe, 110 Magna Carta, 123, 244 Makino, Eiichi, 231–2, 233, 236–7, 241, 243, 244–5, 248 Mancini, Pasquale Stanislao, 267–8 Mandela, Nelson, 131–2, 140 Mannheim, Hermann, 109 Manzini, Vincenzo, 11, 19 Manzù, Giacomo, 29 Maraini, Antonio, 29 Marongiu, Antonio, 20, 183, 305 Marthinsen, Karl, 199, 200 Martínez Sabater, Eduardo, 212, 215, 217, 219–21 Martini, Arturo, 29, 30 Marussig, Guido, 29 Marx, Karl, 2, 237 Marxism, 2, 235–8, 240 see also communism Marzal, Pascual, 6, 207–27 Masferrer, Aniceto, 6, 207–27 Massari, Eduardo, 19 Matteotti, Giacomo, 12 Mayer, Max Ernst, 232, 235, 240–1, 247, 248 Meccarelli, Massimo, 324 mens rea, 234, 248, 281 Metzger, Wolfgang, 249 Mexico: 1935 IPC and, 89 Micescu, Istrate, 352 Minoda, Muneki, 240, 252 Miyazawa, Yutaka, 236–7, 251, 252 mock trials, 190 Moldovan, Iuliu, 358 monster trials, 90–1 morality: Dworkin and legality of Shoah, 52–5 Italian judiciary, 169 law and, 51–2 Fuller, 253 Hart-Fuller debate, 66–70 Japan, 239 Kant, 234 moral state, 253 natural law, 63, 253 Nazism, 56 Morgen, Konrad, 5, 34–5, 36, 38–52, 55–7 Muller, N, 92 Mussolini, Benito: architecture and, 28 definition of Fascism, 17 dual political order, 150, 162 judiciary and, 178, 179, 370

on justice, 19, 31–2 model of masculinity, 296 offences against, 182 political strategy, 148–9 prosecuting policy and, 174 Rocco and, 13 seizure of power, 12 speeches, 14–15, 17, 19, 23, 31–2 trade policy, 152, 153–4 transformative ideology, 14–15, 18 use of criminal law, 147 visit to Monza, 17, 19, 23 Musumeci, Emilia, 6, 277–98 Nacht und Nebel, 188, 199 Napoleon, Joseph, 282 Napoleon I, 30 natural law: Classical School, 230–1 Hart-Fuller debate, 66–70 Japan and, 253 legal equality, 246, 252, 253, 254 Nazism and, 49, 63, 64, 66–70, 72, 74 Takikawa, 240, 241, 252–3 Naumann, Bernd, 45 Naville, François, 94–5, 96, 97 Nazi criminal justice: 1935 Berlin IPC, 5, 77–104 Brazil and, 330 concentration camps contextualising, 37–8 Dworkin and legality, 52–5 international views of, 93 law/history dichotomy, 37–8, 42–3 legal apparatus, 35–7 misrepresentative historiography, 42–8 continuity thesis, 101–2 corruption prosecutions, 38–42, 43, 45, 48, 49, 55, 56 criminal state, 59–61 criminal law in, 33–5 criminology, 106, 107, 112–16 bio-criminology, 121 constitutional fallout, 116–22 death penalty, 85–6, 336 euthanasia, 41, 50 form of legality, 369 Führerprinzip, 49, 50, 55, 69, 120 Jews, 191 judiciary, 200 legality of Shoah, 5, 34–59 legality principle and, 83, 233 natural law and, 49, 63, 64, 66–70, 72, 74 non-law see non-law Nuremberg Laws, 74, 104, 345

Index  381 penal reform law and order vision, 82–4 rupture thesis, 78–9, 100–1 transnational networks, 79–82 visions, 82–7 Volk and race, 84–7 People’s Court, 200 positive law, 41, 46, 101 Reich Citizenship Law, 54 rule of recognition, 35, 42, 69 rupture discourse, 61–76, 77–8, 101–2 SS Judge Konrad Morgen, 34–5, 36 contextualising, 38–42 law/history dichotomy, 42–3, 46 legal theory of ethos, 48–52 legality principle, 55 misrepresentative historiography, 42–8 Nazism see also Shoah dual state, 63–6 historiography, 78 ideological purges, 229, 232 ideological world view, 3 Japan and, 236 legal ideology, 192–3 Norway see Norway under Nazi occupation prerogative state, 35, 63–5, 71, 73–4, 120, 189, 204 Romania and, 348, 351–2, 367–8 rupture theory, 77–8 SS, 33–5, 36, 38–42, 43, 49, 50, 55 ne bis in idem, 135 Negulescu, Paul, 353 neo-Kantianism, 232, 240 Neppi Modona, Guido, 166 Netherlands: 1935 IPC and, 89, 94, 95, 96 anti-Jewish measures, 201 eugenics, 94, 103 Neumann, Franz, 62–4, 65, 69, 71, 74, 75 New Zealand: 1935 IPC and, 88 Nigeria: Apartheid Convention and, 140 non-law: Arendt on, 346 Hart-Fuller debate, 62, 66–70, 75 Nazi law, 59–76 academic discourse, 59–61, 100–1 Fraenkel’s Dual State, 62, 63–6, 69, 72, 73, 75 historiography, 75–6 Kristallnacht, 73 Neumann’s Behemoth, 62–4, 69, 72, 75 persistent paradigm, 71–4, 75 rupture thesis, 61–76, 77–8, 101–2 Nuremberg laws, 74 prerogative state, 35, 63–5, 71, 73–4, 120, 189, 204

Norway: 1935 IPC and, 94 Apartheid Convention and, 141 Nazi occupation see Norway under Nazi occupation recidivism, 264, 271–2 security detention, 111 Norway under Nazi occupation: 1940 invasion, 187 authoritarian rule of law, 189–91 case law, 197–201 collaborators, 6, 187, 188, 192–7 concentration camps, 188, 189 continuities, 204 criminal procedures, 194–5 death penalty, 195, 198–9, 200, 202, 203 instrumentalisation of law, 204 Jews, 188, 197–8, 201–3 judiciary, 194, 195–7, 198, 205, 370 military courts, 195–6 Nasjonal Samling, 187–8, 191, 192–8, 202–5 Nazi legal ideology, 192–3 Nazi rule, 5–6, 187–205 People’s Court, 194 cases, 197–8 prerogative state, 204 price control, 196 resistance, 204 retroactive law, 195 security detention, 195 show trials, 199–200, 204 special courts, 195, 196, 197 cases, 198–201 statutory measures, 193–5 summary trials, 199 Novecento art, 29 Novelli, Giovanni, 93 nulla poena sine lege see legality principle Nunes, Diego, 6, 321–44 Nuremberg tribunals, 39, 44, 49, 62, 65, 72, 140 Ono, Seiichirō, 231–2, 251, 253 Orlando, Vittorio Emanuele, 169 Ortega y Gasset, Eduardo, 99 Osuna Morente, Antonio, 211 Oviglio, Aldo, 167, 170–2, 173, 180 Pagano, Giuseppe, 23 Palop Medina, José, 221 parliamentary sovereignty: apartheid and, 129 Parmelee, Maurice, 105 Parri, Ferruccio, 10 passions see emotions Paterson, Alexander, 88, 92, 93, 99 Pauer-Studer, Herlinde, 34–5, 39, 43, 44, 50, 51, 52, 56

382  Index Paxton, Robert, 3 Payne, Stanley, 2–3 Peel, Robert, 316–17 Pella, Vespasian, 91, 97 Pellegrino, Ettore Lombardo, 279 Pendas, Devlin, 46 Pertini, Sandro, 10 Peru: 1935 IPC and, 98 Piacentini, Marcello, 22–9, 31 Piacentini, Pio, 24 Pifferi, Michele, 5, 105–24, 231, 246 Pini, Carlo, 30–1 Piragibe, Vicente, 328 Pisa, Paolo, 310 Piso Caesonimus, Lucius Calpurnius, 16 Pius XI, Pope, 96 Poland: 1935 IPC and, 89, 94, 98, 103 Romania and, 352 Versailles Treaty and, 348 police: Brazil, 325 criminal and police law, 120 England, 312–17 Francoist Police Court, 210 Italy, 270, 304 Japan, 236, 244 occupied Norway, 188, 190, 192, 195–204 preventive measures, 114, 268, 325 South Africa, 131, 133, 135 SS criminal police (RSHA), 36, 37 Pombo Somoza, Benito, 211 Popenoe, Paul, 94 populism, 4 pornography, 284 Portugal: 1935 IPC and, 89, 98 eugenics and, 103 positivism: American criminology, 122 Austin, 128 Brazil and, 325 emotions and, 280 Free Law Movement, 232–3 German tradition, 78 Hart-Fuller debate, 66–70 Italian Fascist justice, 106–7, 265–6, 267 Italy, 259, 267 Japan, 232–3, 241 Kelsen, 51 morality and law, 51–2 Nazism and, 48, 50–2, 56–7, 63, 72, 101 Nuremberg MIT, 44 South Africa, 128

totalitarian criminology, 108–16, 124 tripartite system and, 234 Pound, Roscoe, 111 prerogative state, 35, 63–5, 71, 73–4, 120, 189, 204 Prins, Adolphe, 80, 111 prisoners: 1935 Berlin IPC and, 92–4, 100, 102–3 Pritt, Dennis, 89 prostitution, 160, 238, 288, 291 Puglia, Fernandino, 280 Puigdoller, Mariano, 225 Pujol, José Ricardo, 210 Quaroni, Giuseppe, 25 Queiroz, Narcélio de, 322 Quisling, Vidkun, 6, 187, 188, 195, 202 race see also Jews 1935 IPC and, 84–7 apartheid, 125–43 CERD, 137 Nazi criminal justice, 84–7 US laws, 54, 104 Rachlin, Robert, 61, 71, 73, 74 Radbruch, Gustav, 78, 101, 109, 113, 114, 232, 243, 248 Radin, Maz, 118 Rădulescu, Andrei, 353 Radzinowicz, Leon, 109, 112 Ramsay, Peter, 246 Ranelletti, Eutimio, 20, 21, 22, 31 Rapisardi, Ernesto, 23, 25 Rapisardi, Gaetano, 25 recidivism: 1930 Rocco Code, 6, 257–76 assessment, 274–6 common recidivism, 260–6 dangerous recidivism, 266–74 development, 260–6, 270–3 historiography, 258 objectives, 259 positivism, 265–6 social defence, 259–60, 270 veterans of crime, 257 Austria, 264, 269 French law, 269 internationalism, 272–4 Norway, 264, 271–2 penal models, 263–4, 269, 271–2 Switzerland, 263–4, 269, 271 United Kingdom, 264, 269, 272 Reinecke, Gunther, 33 Ribelles, Pedro, 223 Riisnæs, Sverre, 193, 199–200, 203

Index  383 riots, 133, 315 Rocco, Alfredo see also Rocco Code 1930 Address to the King, 329 Architect of Fascist justice, 172–4 authoritarian criminology, 108–9, 112–13, 119, 121 concept of justice, 21 crimes of passion and, 285, 286 Fascist revolution, 186 implementing Fascist ideology, 12–19, 22, 27 influence, 265 legislative reforms, 147 judiciary, 172–4 role, 167, 185 Special Tribunal, 148 state use of force, 300–1, 308 Rocco, Arturo, 19, 172–4, 265, 286–7 Rocco Code (Penal Code, Italy, 1930): abortion, 291 Brazil and, 330, 334, 338, 341 continuities, 102, 182, 186, 370 crimes of passion and, 278, 284–7 criminal justice implementing ideology, 12–22 double track system, 90 effect, 181–2 Fascist measures, 275 historiography, 258, 309–11 honour killings, 294–6 individualisation, 112–13 infanticide, 289–91 legality principle and, 83 political crimes, 321, 341 recidivism, 6, 257–76 state use of force, 299–311, 317–19 theoretical basis, 119, 121 Roda Llop, Carmelo, 212 Rodinò, Giulio, 169 Romagnosi, Gian Domenico, 288 Roman law, 29, 30, 179 Romanelli, Romano, 29 Romania: 1866 Constitution, 353, 366 1923 Constitution, 350, 351, 352, 353, 354, 357, 361, 366 1935 Berlin IPC and, 89, 95, 98 1938 Constitution, 352, 353–6, 364, 365 abortion, 358 agriculture, 350, 361 allies, 352, 367–8 anti-Jewish laws, 6, 345–6, 347 criminal law, 362–3 definition of Jew, 360, 364, 368 discourse, 364–7 miscegenation, 347, 359, 363

objectives, 364, 368 scope, 356–63 anti-Semitism history, 356–7 interwar, 351–2 blood, 347, 358–9, 363, 364–5 citizenship, 356–63 crisis legislation, 347–52 death penalty, 366 eugenics, 96, 358 Fascism, 348 holocaust, 359–60 interwar political maelstrom, 350–2 interwar social change, 350 military service, 361 Nazism and, 348, 351–2, 367–8 organic nationalism, 347, 364–7 territorial losses, 348 totalitarianism, 345–68, 371 discourse, 364–7 Versailles Treaty and, 348–9, 352 minorities, 361 new territories, 349, 360 WWI, 350 WWII, 367–8 Romano-Di Falco, E, 307 Rosselli, Carlo, 10 Rossi, Pellegrino, 267, 279 Rossi de Paoli, Paolo, 25 Rosso, Giulio, 29 Ruffini, Francesco, 14 rule of law see also non-law core values, 190 Italian Fascism and, 32, 308, 318, 370 Nazism and, 47, 118, 119, 233 occupied Norway, 189–91 pre-Nazi period, 78 separation of powers, 124 South Africa, 126, 128 threats, 4 use of force in English law, 316 rule of recognition, 35, 42, 51 Rundle, Kristen, 61, 71, 73–4 Rutgers, VH, 97 Sa Pereira, Virgílio de, 332, 335 Sachs, Albie, 135–6 Saeki, Chihiro, 249, 250 Saldana, Quintiliano, 95–6, 97, 99 Saleilles, Raymond, 113, 118 Saltelli, C, 307 Salvemini, Gaetano, 10 Santagata, Antonio Giuseppe, 29

384  Index Santos Torres, J, 216 Sanuto, Marino, 16 Sardinia, 168 Sasamoto-Collins, Hiromi, 6, 229–54 Sauer, Wilhelm, 109, 113, 114 Sbriccoli, Mario, 17, 119, 148, 166, 324, 336 Schäfer, Ernst, 93 Schaffstein, Friedrich, 84, 109, 119 Schelling, Wilhelm von, 21 Schmidt, Eberhard, 119, 249 Schmidt, Edgar, 93 security detention, 90, 110–11, 195 Seganti, Alberto, 184 Selva, Attilio, 29 separation of powers, 108, 117, 124, 182, 369–70 Severini, Gino, 29, 30 sex offenders: castration, 94, 95 Shakespeare, William, 284–5 Shoah: blood, 345 contextualising, 38–42 historiography, 35–6, 75 legal apparatus, 35–7 legal theory, 48–52 legality, 5, 34–59 Dworkin and, 52–5 misrepresentative historiography, 42–8 non-law, 71, 74 organic nation, 345 politico-legal concepts, 345 prerogative state, 65 Romania, 359–60 Siqueira, Galdino, 327, 332, 338, 340 Sironi, Mario, 23, 28, 29 Skinner, Stephen, 1–6, 299–320, 369–71 slavery, 53, 54, 55, 325–6 social contract, 85, 230–1 Solis, Domenech, 212 Sontag, Ricardo, 6, 321–44 Sotelo, Calvo, 217, 220 South Africa: apartheid see apartheid judiciary, 190 positivism, 128 rule of law, 126 Truth and Reconciliation Commission (TRC), 130, 131, 190 United Nations and, 137 Soviet Union: 1935 IPC and, 89 Apartheid Convention and, 140 Criminal Code, 119 positivism, 112 Romanian territories and, 348

Spain: 1935 IPC and, 89, 94, 95, 98 civil law tradition, 234 eugenics and, 96, 103 Francoism see Spain under Franco Spain under Franco: Barcelona Bar Association, 215, 216, 220 list of expelled students, 222, 226–7 court records, 208–9 criminal law instrument, 208 economic repression, 208, 213–14 Madrid Bar Association, 215, 216, 221 list of undesirable colleagues, 215, 226 military trials against Republican lawyers, 208, 209–13 collective groups, 211–13 death penalty, 212–13, 224 individual lawyers, 210–11 objectives, 125, 207–9 professional purge of lawyers, 6, 208, 214–23, 229–30 records, 208–9, 214 repression methods, 208 repression of lawyers, 6, 207–27 revolutionary ideology, 224 targets, 207–8 Valencia, 6, 207–25 Valencia Bar Association, 208, 209, 211, 212, 214, 215–23 list of expelled lawyers, 227 values, 370 state use of force: English law interpretations, 315–17 interwar common law, 6, 311–17 Italian comparisons, 317–19 police status, 312–15 prerogative powers, 312 proportionality, 315, 317, 318–19 scope including status of police, 312–15 Rocco Code, 6, 299–311 English comparisons, 317–19 exemption from criminal liability, 302 interpretations, 306–11 scope including public official concept, 302–5 Weber, 300, 317–18 Stein, Leonhard, 308, 309 Steinweis, Alan, 61, 71, 73, 74 sterilisation: criminals, 94–7, 99, 103, 193 Stolleis, Michael, 57, 73, 74 Stone, Dan, 75 strike actions, 182 Suehiro, Izutarō, 237

Index  385 Sweden: 1935 IPC and, 89, 94 Apartheid Convention and, 141 Switzerland: 1935 IPC and, 94, 96 eugenics, 96, 103 recidivism, 263–4, 269, 271 Takikawa, Yukitoki, 6, 230, 231, 232, 233, 234–54 technical-legal approach, 11, 19, 184, 286–7, 309–11 Teodorescu, Anibal, 353 Terragni, Giuseppe, 23 Thaon di Revel, Paolo, 154 Thompson, Willie, 3 Tolstoy, Leo, 237 Tozzi, Mario, 29 Tracy, Antoine-Louis-Claude Destutt de, 1 Turati, Filippo, 10 Turda, Marius, 358 Ulpian, 29 United Kingdom: 1929 Royal Commission on Police Powers and Procedures, 313 1935 Berlin IPC and, 89, 92, 94, 95, 98–100 Apartheid Convention and, 140 eugenics, 96, 103 false imprisonment, 314 prerogative powers, 312 public-private distinction, 312–13 recidivism, 264, 269, 272 recognition of Nazi law, 54 riots, 315 Romania and, 352 security detention, 111 state use of force, 6, 311–17 United Nations: apartheid and, 136–40 United States: 1935 IPC and, 89, 92, 94, 96 Apartheid Convention and, 140, 141 architecture of justice, 9 criminology, 122–3 eugenics, 94, 96, 103 indeterminate sentencing, 111, 117 miscegenation laws, 54, 104 post-slavery laws, 54

prison reform, 102 recognition of Nazi law, 54 Romania and, 352 sentencing, 105 slavery, 53, 55 Universal Declaration of Human Rights (UDHR), 136–7 use of force see state use of force USSR see Soviet Union utilitarianism, 85, 245 Vargas, Getúlio, 6, 321–44 Velleman, David, 34–5, 39, 43, 44, 50, 51, 52, 56 Venezuela: 1935 IPC and, 98 Versailles Treaty (1919), 348–9, 352, 360, 361 Viazzi, Pio, 284 Vigni, Corrado, 31 vilification crimes, 183–4 Visconti di Modrone, Marcello, 22–3 Vormbaum, Thomas, 61, 71, 72–3, 74 Wachsmann, Nikolaus, 37, 55 Waldmann, Kurt, 93 Weber, Max, 300, 317–18 Weingartner, James, 56 Weisberg, RH, 190 Werle, G, 120 Wetzell, Richard, 5, 77–104 Whitman, James, 104 Wilde, Oscar, 277 Wilke, Gustav, 91 Wines, Enoch, 79 Wines, Frederick Howard, 105 Wirth, Christian, 40–1, 42 Wittmann, Rebecca, 44–8, 55 Wolf, E, 249 women see gender Woodley, Daniel, 3 youth justice: 1935 Berlin IPC, 90 Yugoslavia: 1935 IPC and, 95 Romania and, 352 Versailles Treaty and, 348 Zanardelli, Giuseppe, 27, 169, 181 Zanardelli Code see Italian criminal justice

386