The Fascists and the Jews of Italy: Mussolini's Race Laws, 1938–1943 [1 ed.] 110702756X, 9781107027565

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The Fascists and the Jews of Italy Mussolini’s Race Laws, 1938–1943 From 1938 until 1943 – before the German occupation and accompanying Holocaust – Fascist Italy drafted and enforced a comprehensive set of antisemitic laws. Notwithstanding later rationalizations, the laws were enforced and administered with a high degree of severity and resulted in serious, and in some cases permanent, damage to the Italian Jewish community. Written from the perspective of an American legal scholar, this book constitutes the first truly comprehensive survey of the Race Laws in the English language. Based on an exhaustive review of Italian legal, administrative, and judicial sources, together with archives of the Italian Jewish community, Professor Michael A. Livingston demonstrates the zeal but also the occasional ambivalence and contradictions with which the Race Laws were applied and assimilated by the Italian legal order and ordinary citizens. Although frequently depressing, the history of the Race Laws also involves numerous examples of personal courage and idealism and provides a useful and timely study of what happens when otherwise decent people are confronted with an evil and unjust legal order. Michael A. Livingston is Professor of Law at the Rutgers-Camden School of Law. Professor Livingston has published extensively on tax law, comparative law, and other subjects, including articles in the Yale Law Journal, the Cornell Law Review, the Texas Law Review, and the American Journal of Comparative Law. He has taught at Tel Aviv University, Bar Ilan University, the University of Graz, and Cornell University, and he has lectured at various universities in Italy, Israel, and the United States. Professor Livingston’s course on Law and the Holocaust, which has been taught in three different countries, is one of the few of its kind in American law schools.

Studies in Legal History Editors Sarah Barringer Gordon University of Pennsylvania Holly Brewer University of Maryland, College Park Michael Lobban London School of Economics

The books published in this, the book series of the American Society for Legal History, are dedicated to the understanding of law as both a product of and contributor to history. They explore the ways in which law shapes all aspects of society, including culture, the uses of power, and the development of the economy. They also examine how social, cultural, intellectual, and economic forces affect the development of legal ideas and legal instruments. They look at the people who shape the law, and how laws influence human choices over time. The books published in this series take a variety of methodological and theoretical approaches, and cover a broad geographical and chronological span, including the Americas, Europe, and the wider world, from ancient times to the present day. They are united in being work at the cutting edge of legal historical research, written by scholars who are dedicated to enriching our understanding of the nature of historical and legal change.

The Fascists and the Jews of Italy Mussolini’s Race Laws, 1938–1943

MICHAEL A. LIVINGSTON Rutgers-Camden School of Law

cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sao ˜ Paulo, Delhi, Mexico City Cambridge University Press 32 Avenue of the Americas, New York, ny 10013-2473, usa www.cambridge.org Information on this title: www.cambridge.org/9781107027565 © Michael A. Livingston 2014 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2014 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication Data Livingston, Michael A. The Fascists and the Jews of Italy : Mussolini’s Race Laws, 1938–1943 / Michael A. Livingston. pages cm. – (Studies in Legal History) Includes bibliographical references and index. isbn 978-1-107-02756-5 (hardback) 1. Race discrimination – Law and legislation – Italy – History – 20th century. 2. Jews – Legal status, laws, etc. – Italy – History – 20th century. 3. Antisemitism – Italy – History – 20th century. 4. Italy – Ethnic relations – History – 20th century. 5. Fascism – Italy – History – 20th century. I. Title. kkh2467.m56l58 2013 342.4508ʹ73–dc23 2012051262 isbn 978-1-107-02756-5 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate.

Contents

Preface 1 2 3

Introduction: On the Historical Significance of the Leggi Razziali Legislation: Race, Religion, and the “Italian Model” of Antisemitism Administration: Expansion, Evasion, and the Problem of Institutional Conflict

4

Adjudication: Theory, Practice, and the Role of Judicial Personality

5

The Daily Plebiscite: How Local Officials and Ordinary Italians Responded to the Race Laws From Perpetrators to Victims: The Question of Jewish Responses Conclusion: Implications of the Race Laws for Italy, the Legal Profession, and the Study of Racial Statutes

6 7

page ix 1 22 75 120 160 197 225

Bibliography

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Index

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vii

Preface

This book is an example of how easily an activity undertaken for pleasure – what the Italians aptly call divertimento – can become central to one’s professional existence. On a summer night in 2001, unable to get a train reservation, I rented a car in Florence and drove to Milan with a three-hour stopover in Ferrara, a city I knew from The Garden of the Finzi-Continis (and very briefly my honeymoon) but had no further experience with. I walked along the ramparts leading to the Jewish cemetery and resolved that, one way or another, I would investigate the experience of the Italian Jews during the Fascist era on a systematic level. A few months later the Holocaust Museum in Washington announced a fellowship competition, listing Italy as one of the countries whose archives were being microfilmed but that had not yet been studied. Ten years later, an American tax scholar finds himself publishing a book on the Italian Race Laws, and much of his other teaching and research revolving around themes emerging from the project. The book is also a good example of how different it is to study a subject in detail and to approach it in a casual manner. Most of us grow up with a certain set of assumptions about the Nazi and Fascist eras in general and the Holocaust in particular. The Germans were bad, the Italians were good, the French were somewhere in between. The Race Laws were at best half-hearted and at worst comical in nature, the real trouble starting only when the Germans arrived. It is traumatic and at times disillusioning to discover how incomplete, and sometimes outright false, these generalizations are. Yet there is a deeper love for a country, like a person, that comes when one accepts its limitations and begins to see it as it is rather than as one would like it to be. If I can no longer accept the idea of “the good Italian” (italiani brava gente) quite as readily as I once did – and if I have to force a smile when people say that “there is no antisemitism in Italy” – I can also appreciate much better the survival of ix

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the Italian Jewish community, and the ability of many if not all Italians to learn from the country’s mistakes and try to build a better world. A project of this nature requires assistance from more people than can possibly be named. A first thank you must go my Dean, Rayman Solomon, for allowing me to spend the better part of a decade on a project unrelated to my previous research interests and of less than obvious practical import. My research assistants/associates at Rutgers, including Charlotte Levins, Zoha Barkeshli, Rebecca Mamone, Matan Shmuel, Marissa Sharples, Allison Pavero, Nicholas Dibble, Shefali Jaiswal, Erica DiMarco, and others, and those in Italy, including Martina Salvante, Laura Brazzo, and Alessandra Borgese, likewise deserve special praise. Michele Sarfatti and Liliana Picciotto at the Center for Contemporary Jewish Documentation (CDEC) in Milan were an indispensable source of advice and encouragement from my first trip a decade ago until today. Avvocato Guido Fubini in Turin, until his death in 2010, provided generously of his time and extraordinary energy, all the while providing a model of humanistic Judaism that seeks to make the world a better place without showing bitterness even toward those who deserve it. The staff of the Archivio Centrale dello Stato in Rome, together with the regional archives in Ferrara and Turin and the various Jewish collections (UCEI and ASCER) in the capital, were unfailingly helpful and polite if at times not quite understanding why an American law professor would be interested in their materials. Victoria De Grazia, Jonathan Steinberg, Fabio Levi, Richard Weisberg, and Assaf Likhovski were kind enough to read all or part the manuscript, in some cases more than once, and provide invaluable comments. Presentations to the faculties of Rutgers-Camden, Tel Aviv University, and the Hebrew University in Jerusalem allowed me to try out new ideas and see where my existing ones didn’t work. Special thanks to Cesare Belluzzi for reviewing the draft with a special eye toward the inevitable errors in Italian legal terminology and usage, and to Marco Greggi, Sara Gattazzo, and Anna Zoppellaro, also at the University of Ferrara, for their timely support. Benton Arnovitz, Wendy Lower, and the staff of the United States Holocaust Memorial Museum provided technical and moral encouragement at various stages of the project. Eric Crahan and Lewis Bateman at Cambridge were invariably supportive editors, while Debbie Carr, Kaeko Jackson, and Debi Leak provided invaluable secretarial assistance, as did Anne Dalesandro, Gloria Chao, and the staff of the Rutgers law library. Finally, I would like to thank my wife, Anne Weiss, and my children, Ben and Daniel, for their help and encouragement and simply for putting up with me during the decade or so that it took to complete this project. It is not easy to live with a husband (father) who fills boxes with obscure documents, or who interrupts conversations to see how a word he just heard would best be translated into Italian. It is my hope that this book will justify their as well as my investment, and perhaps teach us all a lesson about tolerance and what happens when it disappears.

1 Introduction: On the Historical Significance of the Leggi Razziali

On the banks of the Tiber, in the center of Rome, stands the main synagogue of the city, an imposing structure surrounded by pleasant, palm-laced gardens. The size and location of the building at first create an impression of stability, even calmness, an impression enhanced by the balmy weather that envelops central Italy most of the year. Only upon turning the bend in the river does one begin to notice unusual things. A first sign is the carabiniere, a machine gun slung over his shoulder, guarding the entrance to the building.1 Closer observation, and a bit of Italian or Hebrew, reveal the tablet that memorializes the Roman Jews killed following the deportation of October 1943 and at later stages of the European Holocaust. A truly careful observer may notice the church, across the street from the synagogue, with its admonition (in Hebrew) to return from the Jews’ erroneous ways and embrace the one true faith. Some visitors may linger in the alleys behind the synagogue that constitute the oldest continuous Jewish community on the planet but were also the site of one of its greatest betrayals. From 1938 to 1945, the Italian and then the German governments launched an assault on the Italian Jewish community from which it has never entirely recovered. The most violent part of this assault took place between 1943 and 1945 when German occupation forces, with not insignificant Italian help, deported and killed about seven thousand Jews from Rome and other Italian cities and towns. But the assault on the Italian Jews did not begin in 1943. From 1938 to 1943, the Italian government, led by Fascist dictator Benito Mussolini, imposed a series of laws that excluded Jews from the country’s schools, armed 1

The historical link is not always direct: security measures were enhanced following a 1980s terrorist attack but suggest the continuing uneasiness of the Jewish community sixty-five years after the war. See generally Mario Toscano, Ebraismo e antisemitismo in Italia: dal 1848 alla guerra dei sei giorni (Milan: Franco Angeli, 2004).

1

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forces, and large sectors of public and quasi-public employment; placed severe limitations on their real and personal property; prohibited marriages between Jews and “Aryans” even where both partners practiced the same religion; and generally attempted to separate Italian Jews from the economic, social, and cultural life of the Italian nation.2 Some Italians protested or simply ignored these laws, or else resisted them in a more passive manner. But many others observed them, and over time – even before the German occupation – the laws tended to become more rather than less rigorous in application. Although the Race Laws (at least until 1943) were not themselves genocidal in nature, the laws helped to facilitate the Italian Holocaust by weakening the Jewish community and gathering extensive information about its membership and characteristics. The Italian Race Laws are shrouded in a sort of historical mist, resulting partially from postwar revisionism but largely from their own historical context. Because we now know that the laws were followed by a larger, infinitely more brutal assault on the Jews, there is a tendency to see them as an intermediate phase, useful primarily to set the stage for later events. This in turn has led to two related fallacies. The first – what might be called the “Good Italian” fallacy – holds that the Race Laws were never really that terrible, that they existed on paper but were not fully enforced, or that they could at least be evaded by those with the wit and persistence to do so. The second – what might be called “The Garden of the Finzi-Continis” fallacy – recognizes the seriousness of the Race Laws but sees them as part of an inevitable progression toward the Holocaust, a reading that also suggests, however indirectly, that Italian Jews were unreasonably slow or timid to respond to the threat that engulfed them.3 Both of these assumptions are incorrect: The Race Laws were by and large enforced, and yet the progression toward the Holocaust would have appeared neither inevitable nor even likely to most of the participants in the summer of 1943, when the Anglo-American invasion of Sicily initiated a chain of events that led to the fall of Mussolini, the German occupation of northern Italy, and the Italian Holocaust. Indeed, had the Allies landed in northern rather than southern Italy – an operation that was at least theoretically possible – there might have been no Italian Holocaust at all, and the Race Laws would have remained the dominant event in modern Italian Jewish history. Scholars, no less than passive observers, have been affected by external factors. Since the Italian Jewish population in the 1930s (about forty thousand) was smaller than that of a medium-sized Polish or American city, scholars are understandably interested in Italy largely for what it has to say about 2

3

The racial laws continued in effect in the northern portion of the country, with significant modifications, from 1943 to 1945. For the most part, this book emphasizes the pre-1943 period. On the relationship between the pre- and post-1943 eras, see Chapter Five. See Giorgio Bassani, Il Giardino dei Finzi-Contini (Turin: Einaudi, 1962). A film version, directed by Vittorio de Sica, appeared in 1970. The issue of postwar interpretations is discussed further in Chapter Seven.

Introduction: On the Historical Significance of the Leggi Razziali

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the broader Holocaust experience. This in turn has led to two principal academic themes. The first is the German–Italian relationship and the role of Nazi Germany in demanding or encouraging Italy to adopt its own racial laws. This German–Italian theme has also been extended to Axis-occupied countries, including France and the Balkan countries, where the Italian army occasionally frustrated Nazi attempts to deport Jews to Auschwitz and other extermination camps. The general conclusion of these studies is that the Germans did not pressure Italy to adopt racial laws of its own, but that the Italian army – for a variety of reasons – did resist German pressure to deport third-country Jews in a significant number of cases, saving the lives of numerous Jews in the process.4 This behavior is often contrasted with that of France and other countries, who appear to have been rather more enthusiastic about the deportation program, although this difference sometimes resulted from political and military conditions rather than differing attitudes toward Jews themselves. Scholars have likewise expressed substantial interest in the response of the Catholic Church, and especially Pope Pius XII, to the Holocaust. Although the Church is not strictly speaking an Italian institution, the pope and most high-ranking Vatican officials were Italians throughout the 1930s and 1940s, so that academics have inevitably focused on Italy – despite its relatively small Jewish population – in attempting to explain the Church’s behavior in this era. While the issue is hotly debated, the prevailing conclusion is that the Vatican itself did relatively little to protect Jews – or at least those Jews who had not already converted to Catholicism – but that individual churchmen sometimes did much more, and that the Italian Church ranked relatively high as compared to other countries on this latter score.5 Together with the above, there is a smaller although still impressive body of work on the general question of Italian Jews during the Fascist era, of which the books by Renzo De Felice (1961) and Michele Sarfatti (2000) remain the most comprehensive.6 Although many of these works discuss the period between 1938 and 1943, that period is typically one subject in a longer study, so that a relatively small number of books – nearly all in Italian – focus specifically on the 1938 Race Laws. Most of these works were written by historians rather 4

5

6

There were no deportations from Italy itself prior to 1943. On the differences between Italian and German treatment of Jews, see generally Jonathan Steinberg, All or Nothing: The Axis and the Holocaust 1941–43 (London: Routledge, 1990). Other scholars have been somewhat more skeptical of Italian military behavior as we shall see. For a comprehensive study on the Vatican and the Holocaust in Italy, see Susan Zuccotti, Under His Very Windows: The Vatican and the Holocaust in Italy (New Haven: Yale University Press, 2000). On the Church and the Holocaust generally, see Michael Phayer, The Catholic Church and the Holocaust, 1930–1965 (Bloomington: Indiana University Press, 2000). On the Church and the Jews in the centuries preceding the Holocaust, see David I. Kertzer, The Popes against the Jews: The Vatican’s Role in the Rise of Modern Anti-Semitism (New York: Knopf, 2001). Renzo De Felice, Storia degli ebrei italiani sotto il fascism, 4th ed. (Turin: Einaudi, 1988); ` persecuzione (Turin: Einaudi, Michele Sarfatti, Gli ebrei nell’Italia fascista: vicende, identita, 2000). Both the DeFelice and Sarfatti books are available in English translation.

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than lawyers, so that they quite understandably emphasize the political and social context of the Race Laws rather than the drafting and interpretation of specific legal provisions. The books were likewise written for a predominantly Italian audience and devote relatively little space to comparative issues.7 This book takes a somewhat different approach. It emphasizes the Race Laws rather than the Holocaust era, and – while there will certainly be occasion to discuss the role of the Church and the German connection – neither of these is a principal theme of the work. Where the book does discuss the Holocaust period, it emphasizes those aspects of the anti-Jewish program, notably the provisions affecting Jewish property, that remained primarily under Italian control in this period. The book also differs from previous works in adopting a comparative law/legal history perspective in contrast to the political/social history that is dominant in the field. The goal is less to tell the chronological story of the Race Laws than to situate the laws within our existing understanding of racism and race legislation and, in turn, to determine what if anything the Italian experience can add to that understanding. A secondary goal is to situate the laws within Italian (and especially Italian legal) history: to determine what effect, if any, the specifically Italian character of the laws had on their drafting, implementation, and enforcement. A third and final goal is to assess the behavior of law and lawyers faced with an evil or destructive legal regime, but one that afforded significant opportunity for legal and personal choices. 7

In suggesting that this book differs from existing scholarship on the Italian Race Laws, I do not deny that there is a great deal of previous research on the subject. The most comprehensive works are by DeFelice and Sarfatti (see note 6), although the former is somewhat out of date and has been criticized for understating the degree of antisemitism in the country. Among the more important works originally written in English are Steinberg, All or Nothing; Meir Michaelis, Mussolini and the Jews: German-Italian Relations and the Jewish Question in Italy, 1922–1945 (New York: Oxford University Press, 1978); and Alexander Stille, Benevolence and Betrayal: Five Italian Jewish Families under Fascism (New York: Picador, 1991). Books in Italian include national studies by Alberto Cavaglion, Enzo Collotti, and Liliana Picciotto, together with studies of particular regions by Enzo Collotti, Silva Bon, Fabio Levi, and numerous journal articles. A more recent work, written in French and available in Italian, is Marie-Anne Matard-Bonucci, L’Italie fasciste e la pers´ecution des juifs (Paris: Editions Perrin, 2007). See also Francesco Germinario, Fascismo e antisemitismo: progretto razziale e ideologia totale (Rome: Laterza, 2009). These and many other works will be cited at appropriate places in this book. While all of these are very solid works and many are outstanding, it must be remembered that many emphasize the Holocaust rather than the Race Laws period, and the great majority take a traditional historical rather than a legal or a juridical approach; that is, they typically employ a narrative rather than a subject matter focus and do not consider the process of legal (including judicial, administrative, and legislative) decision making in the manner common for legal scholars. By contrast, most juridical works have either consisted of brief articles or – in rarer cases – longer treatments of one aspect of the problem (judicial behavior, the behavior of lawyers in a particular region, etc.) rather than truly comprehensive studies (see notes 18– 22). Without detracting anything from these other works I believe it fair to say that this book considers issues and problems not been previously considered in equivalent detail, especially in an English-language volume.

Introduction: On the Historical Significance of the Leggi Razziali

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The choice of these goals means that the book will be organized thematically rather than chronologically and that there will be numerous digressions into issues that appear narrow or technical in nature but that are important for understanding the operation of the laws and their effect on the broader legal system. It means further that the principal source materials will be the official legal documents – legislation and legislative history, administrative decisions, and judicial opinions – that the Italian state used to create and enforce the Race Laws during the years in question. Where appropriate, I will supplement these materials with a variety of primary and secondary sources, including letters, correspondence, and the files of national and local Jewish organizations, in an effort to determine the real-world impact of the Race Laws and the Jewish response to them. But the principal focus will remain on the laws themselves. Against the background of these sources, I will pose three principal questions. The first – what might be called the “universal” question – relates to the nature of the Italian Race Laws and how they differed from racial and antisemitic statutes in other countries and at different times. Among the issues that arise here are the question of content (what features did the laws have in common with other racial statutes, and which features were unique to the Italian situation) and of change (did the Race Laws become stricter or more relaxed with the passage of time, and is this progression likewise common to racial statutes or unique to the Italian situation). Of particular interest here is the relationship between antisemitism and racism directed against nonwhite peoples.8 Italy is unusual in that, at more or less the same time that 8

While there is a substantial amount of work on the history, culture, and anthropology of racism as a phenomenon, and a number of very good works by legal scholars describing particular racial regimes as I will detail, only rarely have these lines of inquiry been combined, in the form of detailed comparative studies that consider the nature of racial laws applied against different groups in different historic circumstances. This limitation appears to result in large part from the compartmentalization of scholarship, the laws restricting different groups having typically arisen in different places and at different times, and (perhaps) from a certain competition for victim status, in which each group is loath to admit that another group’s suffering could in any sense be comparable to its own. By considering a country that enacted and enforced both anti-Jewish and anti-black laws in roughly the same time period, I hope to correct at least part of this deficiency. For a classic study of race and culture, see Pierre L. van den Berghe, Race and Racism: A Comparative Perspective, 2nd ed. (New York: John Wiley & Sons, 1978). On the history of antisemitism, see generally Leon Poliakov, The History of Anti-Semitism: From Mohammed to the Marranos, trans. Natalie Gerardi (New York: Vanguard Press, 1974); George L. Mosse, Toward the Final Solution: A History of European Racism (New York: Howard Fertig, 1978). For an interesting effort by an American legal scholar to confront the issue of race and culture, see Ariela Gross, “Beyond Black and White: Cultural Approaches to Race and Slavery,” Columbia Law Review 101 (2001). For contemporary historical scholarship on the role of law in the maintenance of racially discriminatory systems, see, e.g., David Dyzenhaus, Hard Cases in Wicked Legal Systems: Pathologies of Legality, 2nd ed. (Oxford: Oxford University Press, 2010) (South Africa); Jane Dailey, The Age of Jim Crow: A Norton Documentary History (New York: W. W. Norton, 2008) (United States); Alejandro de la Fuente, A Nation for All: Race, Inequality, and Politics in Twentieth-Century Cuba (Chapel Hill: University of North Carolina

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it was drafting the antisemitic laws, it was preparing laws and regulations dealing with its newly expanded African empire, including the present-day countries of Ethiopia, Somalia, Eritrea, and Libya. Fascist propaganda made a strong and explicit connection between the danger to the Italian race posed by Jews and Africans; many of the same practical issues, notably the definition of race and the treatment of mixed marriages, also arose in both contexts. What affect did the African experience have on the nature and content of the Race Laws, and how were parallel problems dealt with under the two sets of laws? What happened when the two laws intersected, as in the case of Jews in the African colonies and (less frequently) Africans in Italy proper? What, if any, are the parallels between the German and Italian race laws and non-European race statutes, such as the American Jim Crow or South African apartheid laws? The second – what might be called the “Italian” question – concerns the special features of Italy and how they affected the nature and (especially) implementation of the Race Laws. Italy has a reputation for disrespect of central authority and a certain laxness or inconsistency in the enforcement of laws, although these factors are sometimes overstated. The country also has a relatively small Jewish community and – while it is hardly a stranger to anti-Jewish feeling – a somewhat weaker history of organized antisemitism, at least in the modern era, than its northern neighbors. What adjustments if any did the Race Laws draftsmen make to accommodate these special features, and were they successful in achieving the intent of the laws? Were the laws successfully enforced, and – to the extent they were not – did this failure result from a lower level of antisemitism, from the inefficiency of the Italian bureaucracy, or from some other factor? How did these outcomes differ as between different laws, governmental entities, and geographical regions, and how did the Italian experience as a whole differ from that in other countries? What effect, if any, did the historically religious rather than racial emphasis of Italian antisemitism have upon the laws, especially in cases like conversions or mixed marriages when the religious and racial approaches were most likely to differ? The third – what might be called the “legal” question – concerns the role of law and the legal profession in the creation and implementation of the Race Laws. As compared to Hitler’s Germany or Stalin’s Soviet Union, Fascist Italy offered at least a limited amount of independence to judges and lawyers, and a courageous few used this independence to ameliorate or limit the damage resulting from the laws. But others expanded them – and, by providing technical assistance in drafting and interpreting the Race Laws, lawyers were indispensable in making the laws effective. Italian legal philosophy, which reflected a strong positivist influence and envisioned (at that point in time) a relatively restricted range for judicial interpretation, may also have conspired to make the laws more effective and resistance more difficult. What effect did these Press, 2001) (Cuba). A further comparative perspective is provided by Vivian Grosswald Curran, “Racism’s Past and Law’s Future,” Vermont Law Review 26 (2004).

Introduction: On the Historical Significance of the Leggi Razziali

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factors have on the Race Laws, and how did they differ from other countries? Did the formally legal character of the laws, notwithstanding their apparent immorality – which in any case is likely to be more visible now than it was at the time – help to explain their reception by the Italian population and the Jews themselves? What are the lessons for the training of future lawyers and the prevention of further Holocausts? Although I emphasize governmental sources, no study of the Race Laws would be complete without some mention of the response by ordinary Italians and by the Jews themselves. Accordingly, I have included two chapters (Five and Six) that discusses these issues, although here again emphasizing verifiable, written correspondence from individuals and organizations, especially those with legal implications, rather than postwar recollections. The first of these chapters (Chapter Five) also considers the local administration of the Race Laws in two Italian cities (Ferrara and Turin), providing a balance to national sources and raising the always important issue, in Italy, of regional differences. The organization of the book reflects the concerns related above. Following this introduction, the ensuing three chapters are organized on an institutional basis. Chapter Two emphasizes the drafting of the Race Laws, and Chapter Three addresses their administration by the Demorazza9 and other parts of the Italian bureaucracy and Chapter Four their interpretation by the judicial system. As a general rule, these chapters emphasize selected areas of interest, like the treatment of mixed marriages and the provisions regarding Jewish businesses, rather than a broad historical survey. Chapter Five considers the issue of general Italian (local and national) responses, and Chapter Six considers the behavior of the Jews themselves. Chapter Seven presents my conclusions regarding the principal themes and subjects outlined above. It is my hope that this scheme will permit those who agree with my analysis to benefit from it, while those who disagree will be free to reach their own conclusions based on the original sources. I suggested above that I will be taking a primarily legal or juridical approach to the Race Laws, involving detailed examination of laws, judicial opinions, and administrative decisions. This approach may be jarring to some readers, in two distinct but related ways. The first involves the choice of source materials. As a lawyer, I will place a disproportionate emphasis on unusual or borderline cases, such as attempted evasions of the restrictions on Jewish property or cases involving interreligious marriages, in the hope that these “extraordinary” cases 9

Ministero dell’Interno, Direzione generale per la demografia e la razza (Interior Ministry, Department of Demography and Race), the government agency charged with primary jurisdiction over the Race Laws. Most of the employees of the Demorazza – a relatively small number – appear to have been career bureaucrats rather than individuals chosen for their antisemitic or other ideology, although the long-time director, Antonio Le Pera, had somewhat stronger antisemitic credentials. See Chapter Five.

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can shed light on the “ordinary” operations of the provisions in question. This methodology will be familiar to law professors, who regularly teach strange or improbable decisions in order to illustrate the workings of the day-to-day legal system. It may seem stranger to nonlawyers, who will wonder why, against a backdrop of war and genocide, we should worry what a usufruct was or how the law dealt with various bizarre permutations in mixed marriage cases. But I think that it is precisely such cases that enable us to investigate the theory and practice of the Race Laws and to place them in a continuum of contemporary and later racial statutes. Borderline or “hard” cases are especially important if we wish to determine the strictness with which the laws were enforced and the attitude of the participants – both Italian authorities and Jewish victims – to them. Chapter Five, which focuses on enforcement of the Race Laws in two cities (Ferrara and Turin), will to some degree restore this balance by emphasizing the large number of routine cases that, while less intellectually significant, were perhaps more typical of day-to-day experience. A second objection is more philosophical in nature. In applying legal methodology to the Race Laws, some may object that I have taken the laws too seriously, treating them as valid legal provisions when they will strike many as illegitimate or even criminal in nature. To consider this argument, a bit of background is useful. Broadly speaking, there are two approaches to the study of law and the Holocaust. One view, loosely associated with theories of natural or immutable law, views the Holocaust as a fundamentally illegal or extralegal phenomenon – a sort of collective murder and robbery – that should not be dignified by attributing to it the language of law and legal reasoning. This is the view suggested although never precisely stated by Lon L. Fuller in his famous exchange with H. L. A. Hart regarding the legality of various formally adopted but substantively immoral laws – involving “Aryan” Germans as well as Jews – taken by the Nazi regime (“[t]o me there is nothing shocking in saying that a dictatorship which clothes itself with a tinsel of legal form can so far depart from the morality of order, from the inner morality of law itself, that it ceases to be a legal system”).10 A similar view has been attributed to the German scholar Gustav Radbruch, whose “jurisprudence of values” (Wertungsjurisprudenz) was in part a response to the excessive positivism that was thought to have paved the way for German judicial acceptance of Nazi legislation during the 10

Lon L. Fuller, “Positivism and Fidelity to Law – A Reply to Professor Hart,” Harvard Law Review 71 (1958), 660. I take some liberties with the Hart-Fuller debate in that their exchange concerned legal philosophy rather than historic analysis. It must also be noted that Fuller never adopts a full-fledged natural law position, although he does suggest that he – in contrast to Hart – finds credible that the radical positivism of German legal thinking helped to facilitate Nazi abuses (ibid., 657–61). For a provocative study of jurisprudence and the Holocaust, emphasizing the importance of the Holocaust as a legal (and not merely extra-legal) phenomenon, see David Fraser, Law after Auschwitz: Towards a Jurisprudence of the Holocaust (Durham: Carolina Academic Press, 2005).

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Third Reich.11 A version of this outlook is reflected each time that we, in day-to-day parlance, refer to the Nazis as “criminals” and the Holocaust as a “crime against humanity” or with similar words. Although most commonly applied to the Holocaust itself – that is, the deportation and extermination of the Jews during the 1941–5 (1943–5 in Italy) period – this view is frequently extended to the less extreme antisemitic actions, such as property confiscations, bans on mixed marriages, and other losses of political and civil rights that preceded the extermination program (i.e., the Nuremberg Laws in Germany and equivalent legislation in other countries). Indeed, there is a broader tendency to treat the entire Fascist era as illegal or aberrational in nature, an attitude reflected in postwar French and Italian commentators who viewed the Vichy and Sal`o regimes (although not the pre-1943 Fascist government) as inherently illegitimate and all or some of their (especially political) actions as lacking proper legal status.12 An alternate view, loosely associated with legal positivism, suggests that the Holocaust era legislative provisions were in fact laws, albeit evil and unjust ones: The tools of legal analysis are thus correctly applied to these provisions even though the laws were immoral in nature and one might hope that they will remain isolated and discredited phenomena. This is in essence the position taken by Hart in his exchange with Fuller, where he expresses concern that the confusion of law and morality will ultimately weaken respect for law and create unnecessary confusion between the disciplines, or, put differently, that a law may be too immoral to be respected but does not thereby lose its status as law.13 This latter view has historical, if not jurisprudential, validity in that the antisemitic measures were generally speaking viewed as laws by those propagating and (in many cases) those victimized by them, and – at least until the point of actual murder – bore formal aspects of legal phenomena such as enactment by legislatures, administration by executive agencies, and (within certain limits) interpretation by judicial bodies. It is also surely worth noting that the Holocaust itself originated in a country that (together with Italy itself) was noted as a stronghold of legal positivism, although in fairness racially 11

12 13

For a provocative series of papers on the Hart-Fuller exchange and Radbruch’s role in provoking that exchange, see “Symposium: The Hart-Fuller Debate at 50,” N.Y.U. Law Review 83 (2008), 993. For the classic (prewar) statement of Radbruch’s philosophy, see Gustav Radbruch: “Legal Philosophy,” in The Legal Philosophies of Lask, Radbruch, and Dabin (Cambridge: Harvard University Press, 1950), 43–224. Radbruch’s philosophy and his arguable change of heart in response to the Nazi experience find an Italian reflection in the work of Piero Calamandrei, whose prewar views were tested by the experience of Fascism; see Chapter Four. See Chapter Seven. H. L. A. Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review 71 (1958), 615–21. Positivism is generally associated with the view that law is what the sovereign power acting in the appropriate manner says it is, even though it may be viewed as contrary to religion, morality, or other values. Prewar Germany – and to a slightly lesser extent Italy – were especially identified with legal positivism, although there were contrary trends, as seen in the work of Giorgio del Vecchio and other scholars. See Chapter Four.

10

The Fascists and the Jews of Italy

discriminatory statutes and other large-scale denials of human rights, including the American Jim Crow laws and apartheid in South Africa, have existed in countries with a wide range of legal and political systems and situated at various places along the natural law versus positivism divide. Each of the views above are amply reflected in the Holocaust field, with the former (illegal or extralegal) view perhaps more strongly represented among those who study Germany and Eastern Europe and the latter (legal) interpretation more strongly represented among those who study France, Italy, and other Western European nations, where antisemitism took an initially less genocidal form and the appearance of legality tended to be maintained for a longer period. There is also a temporal distinction, with the period before June 1941 typically being viewed with a more “legal” lens and the extermination program itself as more “extralegal” in nature. Put a little bit differently, most scholars agree that the Holocaust ceased at some point to follow legal procedures and could no longer be effectively understood by reference to legal terms and analysis, but the question of when and where this point was reached varies substantially between different scholars and different countries. Without taking sides in the jurisprudential debate, I believe that the Italian case is one in which a legal analysis is particularly fruitful, at least for the period before September 8, 1943, when Italy remained an independent country and there was as yet no extermination program as opposed to discrimination policy.14 A juridical approach seems to be consistent with the behavior of the Italian authorities, who enacted and administered the laws by means not wholly dissimilar from those used for other statutes, and of the Italian Jews themselves, who at least superficially complied with the laws although viewing them as unjust or even illegitimate in most cases.15 It is difficult if not impossible to understand the behavior of the oppressors or their victims without recognizing that both viewed the laws as having formal legal sanction even if many obviously had moral or ethical qualms about them. It is likewise questionable to view the Race Laws (or the entire Fascist period) as anomalous or extralegal in character when each had numerous precedents in European and Italian history and shared features with race-based statutes in other parts of the globe. Indeed, as one prominent scholar has noted, most of the individual anti-Jewish provisions in Germany (and by extension Italy) had already existed in one place or another in Europe, so that the laws were in many respects a reversion to earlier practice rather than a new departure.16 14 15

16

See the historical survey later in this chapter. As compared to Germany, where a large-scale bureaucracy was established to deal with Jewish issues, the agency charged with administering the Race Laws (the so-called Demorazza) was rather small, and much enforcement took place through the regular prefects, police, and judicial system. For a side-by-side comparison, showing provisions of German anti-Jewish laws and their antecedents in canon (i.e., church) law, see Raul Hilberg, The Destruction of the European Jews, 3rd ed. (Teaneck: Holmes & Meier, 2003), 7–9. Many of the provisions cited by Hilberg,

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I should also note the appearance of a number of influential studies of law and lawyers in the Holocaust that serve as partial models for this study. A particularly provocative work is Richard Weisberg’s book Vichy Law and the Holocaust in France, published in 1996. Weisberg, an American legal scholar and a leader in the law and literature movement, discusses the interpretation and application of the antisemitic laws that were in effect in France (including Vichy France and German-occupied parts of the country) during the period 1940–4. These laws were in many aspects similar to the existing German and Italian versions but bore a distinctly French stamp and, as Weisberg demonstrates, were frequently interpreted in a manner more stringent than the equivalent German provision. According to Weisberg, this seemingly anomalous situation resulted from a peculiar mix of antisemitism and French legal/philosophical tradition, under which the Jews were viewed as “Talmudic outsiders” whose tradition of legalistic manipulation required application of the most aggressive measures to prevent evasion of the law. Weisberg traces French behavior in a variety of contexts ranging from the trial of Leon ´ Blum to the application of individual legal provisions, notably in the mixed marriage and “who is a Jew” contexts: Of particular significance is his finding that French liberals as well as conservatives frequently shared a similar, religiously and culturally based hostility toward the Jews.17 A jurisprudential approach is similarly taken by Ingo Muller in Hitler’s Justice: The Courts of the Third Reich (1992). Muller notes, for example, how German judges frequently anticipated Hitler’s wishes by, for example, refusing to permit mixed marriages even before they were prohibited by legislation, and by imposing unnecessarily harsh (and frequently death) sentences on Jews in cases where the law did not call for them.18 Muller’s book is especially interesting for noting the interplay of legal and extralegal methods in the Nazi state, as when Jews and others were sentenced to prison and then taken to concentration camps upon expiration of their terms. Weisberg’s and Muller’s conclusions arguably have limited relevance for Italy, which has a very different legal and political history (and arguably a somewhat weaker or at least different antisemitic tradition) than Germany or

17 18

including prohibition of interreligious marriage, a ban on Jewish employment of Christian servants and exclusion of Jews from public positions, were the same or similar under the Italian Race Laws. Richard H. Weisberg, Vichy Law and the Holocaust in France (Newark: Harwood Academic Publishers, 1996), 6–36, 196–240, 386–429. Ingo Muller, Hitler’s Justice: The Courts of the Third Reich (Cambridge: Harvard University Press, 1992), 90–119. See also Michael Stolleis, The Law under the Swastika: Studies on Legal History in Nazi Germany (Chicago: University of Chicago Press, 1998). For an argument that the Holocaust in Germany can be understood as a “legal” phenomenon – that there is no solid, unbridgeable line between the Nazi conception of law and our own – see Fraser, Law after Auschwitz, 12 (“It is the very normality of the Holocaust and of the legal basis of the Holocaust that challenges us”).

12

The Fascists and the Jews of Italy

France. Nevertheless, their methodology – a detailed analysis of judicial decisions and, in Weisberg’s case, legislation and administrative rulings, and their relationship to the broader legal order – seems to me highly appropriate. In particular, I share Weisberg’s sense that the Holocaust must be considered in a sophisticated manner that takes into account each nation’s legal and intellectual traditions rather than in a linear fashion that asks whether a country was “more” or “less” antisemitic on a single, unitary scale. Although different countries inevitably raise different issues, I hope to duplicate Weisberg’s achievement for another society, and to continue a process that will lead to a richer comparative literature and a deeper understanding of the law and the Holocaust problem. Although there is no precise equivalent to Muller’s or Weisberg’s book for Italy, a number of authors have begun to probe the response of Italian lawyers and judges to the Race Laws and (in turn) the effect of those laws on the Italian legal system. One recurrent theme is the uneasy relationship between the racial statutes, which distinguished between individuals on the basis of biology, and Roman Law (diritto romano) – the historical basis of the Italian legal system – which had traditionally been understood to emphasize the universal and neutral character of law.19 A related topic is the place of the Race Laws in Italian Jewish history, which had previously witnessed numerous legal disabilities until the final and (prior to the Race Laws) seemingly irreversible emancipation of the nineteenth century.20 On a more practical level, a number of authors have examined the behavior of Italian lawyers, law firms, and bar associations, who – notwithstanding their later denials – were often ambivalent or even enthusiastic about the Race Laws and Fascism in general.21 Finally, several works have appeared in recent years on the behavior of judges and professors called on to interpret and (sometimes) promulgate 19

20

21

See, e.g., Olindo De Napoli, “Razzismo e diritto romano: una polemica degli anni Trenta,” in Contemporanea: rivista di storia dell’800 e del ’900 (2006), 35–63. An attempt was made to resolve this antithesis by emphasizing the supposedly racial and antisemitic character of ancient Rome (ibid., 55–63). This issue is especially significant as it affects one’s broader understanding of Fascism and its implications for the postwar Italian legal order; see Chapter Six. See, e.g., Guido Fubini, La condizione giuridica dell’ebraismo italiano, 2nd ed. (Turin: Rosenberg & Sellier, 1998), 63–82; Salvatore Mazzamuto, “Ebraismo e diritto dalla prima emancipazione all’et`a repubblicana,” in Storia d’Italia annali XI: gli ebrei in Italia, ed. Corrado Vivanti (1997), 1767–1827. Fubini’s book in particular will constitute an important source in Chapter Four. See, e.g., Il diritto di fronte all’infamia nel diritto: a 70 anni dalle leggi razziali, ed. Loredana Garlati and Tiziana Vettor (Milan: Giuffre, 2009) (papers presented at conference held by the University of Milan law faculty); Le leggi razziali e gli avvocati italiani: uno sguardo in provincia, ed. David Cerri (Plus, 2010) (meeting sponsored by Pisa bar association); A Settant’anni dalle leggi razziali: profili culturali, giuridici, e istituzionali dell’antisemitismo, ed. Daniele Menozzi and Andrea Mariuzzo (Rome: Carocci, 2010) (conference sponsored by the Region of Tuscany and various local institutions). Each of these collections (and particularly the first) also contains essays on legal and philosophical issues raised by the Race Laws; an essay by Garlati on the role of natural law (giusnaturalismo) in Italian legal thought and its relationship to the Race

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the Race Laws and other Fascist era legislation.22 With few exceptions, the works above have examined one or another aspect of the Race Laws and the Italian legal system, or have done so as part of a broader study; there is to my knowledge no full-length work, in English or Italian, that deals comprehensively with the question of law, lawyers, and the Race Laws. Still, the questions posed by these and other authors are of utmost importance: This book is less a negation of their collective efforts than an effort to explore their insights in a more complete and systematic fashion. The book proceeds in topical rather than chronological order, and so a bit of historical background may be useful. Jews have lived in Italy for more than two thousand years, making the Italian Jewish community the oldest if rarely one of the largest in Western Europe. While some Jews, particularly in Rome, trace their lineage to the ancient world, a larger number are descended from immigrants who arrived (directly or indirectly) from Spain or Portugal following the expulsions from those countries in the late fifteenth century, or (more recently) from Germany or other northern European countries. These varying strains of immigration have contributed to the diverse character of Italian Jews, who are divided between so-called Sephardic Jews (roughly those of Iberian origin), Ashkenazic Jews (German or Eastern European origin), and a third group variously called Italian or native Jews, although these lines are fluid and, by this point, most Italian Jews probably reflect some mixture of two or more different groups.23 A fourth group, consisting of Jews from Libya, Iran, and other non-European countries, arrived primarily after 1945 and hence is not directly relevant to our study. Like their European brethren, Italian Jews have hardly been immune from discrimination or persecution: Indeed, the term ghetto is an Italian (or more properly, Venetian) word, and the ghetto walls in most Italian cities did not come down until various times in the nineteenth century. Nevertheless, there is a sense that modern Italy, if not exactly welcoming, has on the whole been somewhat more tolerant of Jews than other European nations – or at the very

22

23

Laws is especially provocative. The behavior of the Italian legal profession and the reliability of postwar memories are discussed further in Chapter Four. See, e.g., Giuseppe Speciale, Giudici e razza nell’Italia fascista (Turin: G. Giappichelli, 2007) (discussing judicial interpretation of the Race Laws); Ernesto De Cristofaro, Codice della persecuzione: i giuristi e il razzismo nei regimi nazista e fascista (Turin: G. Giappichelli, 2008) (comparing attitudes in Germany and Italy); Antonella Meniconi, La “maschia avvocatura”: istituzioni e professione forense in epoca fascista 1922–1943 (Bologna: Il Mulino, 2006) (treating Race Laws as one example of the behavior of the Italian legal profession during the Fascist era); Giuseppe Acerbi, Le leggi antiebraiche e razziali italiane ed il ceto dei giuristi (Milan: Giuffre, 2011) (comprehensive survey of pre- and post-1943 eras). A useful summary of recent scholarship is Silvia Falconieri, “Consensi e Rimozioni: la dottrina giuridica italiana e la legislazione razziale fascista,” in Mennozi and Mariuzzom A settant’anni dalle leggi razziali, 183. Additional sources are discussed in Chapter Four. The nature of the Italian Jewish community, and its implications for the issue of Jewish resistance to the Race Laws, is discussed further in Chapter Five.

14

The Fascists and the Jews of Italy

least has avoided the large-scale, violent persecutions that characterized many of these countries at different points in their history. Post-unification Italy – at least until the 1930s – was also unique among major European powers in lacking a modern, politically organized antisemitic movement, as existed in Germany, France, Russia, and other countries in the late nineteenth and early twentieth centuries. This difference resulted, most likely, from the small number and (by European standards) assimilated character of Italian Jews, together with the at least nominally liberal values associated with Italian unification, rather than from any inherent moral superiority on the part of the Italian people. It is also true that the Catholic Church – both more dominant and more institutionally “Italian” in the past than it has since become – continued to preach what by today’s standards would be considered antisemitic doctrine throughout this period. Finally, any general analysis must be subject to extensive regional differences, the Jews of, say, Turin, having been earlier and more completely emancipated than those of Rome.24 Notwithstanding these differences, Italian Jews prior to the racial laws felt as safe as or safer than virtually any Jewish community in the world and would have been literally stunned to learn what awaited them a few years later. The sense of security and well-being among the Italian Jews was if anything increased by the circumstances of the country’s unification in the 1860s and 1870s. The country was unified under the leadership of Piedmont (Piemonte), one of the more progressive if not necessarily liberal regions, and over the opposition of the Church, the Austrian Empire, and other conservative forces. In the new Kingdom of Italy – as in Piedmont under its most recent constitution – Jews had equal rights with their fellow citizens, and many rose to important positions in business, government, and even military circles. Indeed, because the Church initially refused to recognize the Italian state and ordered its adherents to refrain from participating in political activities, Jews were arguably in a superior legal position than practicing Catholics, in a country where the latter constituted a large majority.25 It must be noted that this was in many respects an unstable situation and gave rise to not inconsiderable resentment in Catholic circles, which helped provide the background for the later antisemitic measures. 24

25

The Jews were expelled from most of southern Italy in the late fifteenth or early sixteenth centuries, following closely upon their expulsion from the Iberian peninsula. See generally Cecil Roth, The History of the Jews of Italy (Philadelphia: Jewish Publication Society of America, 1946), 245–88. While some small communities were subsequently reestablished, notably in Naples, the great majority of modern Italian Jews has lived in Rome or further north. Vatican directives in 1874 and 1877 had refused to recognize the Italian State and ordered practicing Catholics to refrain from participating in it. The Church relaxed its opposition to political participation after World War I, allowing the People’s Party (Partito Popolare Italiano, PPI) to be formed in 1919. The 1929 Lateran Treaties resolved the issue of the Church’s temporal power and led to a substantial relaxation of Church–state tensions.

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Fascism came to power in 1922, following a victory in World War I that appeared to many Italians more like a defeat, and in an atmosphere of increasing chaos resulting from land seizures by returning soldiers and organized violence against socialists and others on the part of Fascist squadristi (squad members or, more colloquially, thugs) in the postwar era. At the start Fascism took an ambivalent attitude toward Italian Jews, then about forty thousand persons, and several Jews achieved prominence within the Fascist movement. Exactly when and how this attitude changed has been debated. Some scholars believe that antisemitism was inherent in Fascism and simply took time to manifest itself. Others trace the problem to the signing of the Lateran Treaties in 1929, which reestablished the special relationship of the Catholic Church with the Italian state and meant that the Jewish community, as opposed so far to individual Jews, was no longer on a wholly equal plane.26 Still others mark the turning point from the Italian invasion of Ethiopia (1935) and the Spanish Civil War, which heightened Italian racial consciousness and caused Italy to identify more closely with Nazi Germany as a friend and ally.27 Although there was little if any German pressure regarding racial matters, this period saw an overall deepening of the Italian-German relationship, which tended to embolden the advocates of a more overt antisemitic policy and reduce the influence of the western democracies and others who might tend to oppose this policy. It should be noted that before, during, and in some cases after the Race Laws period – even when there was no official anti-Jewish policy – a small but determined current of antisemitic thought flourished on the fringes of Italian intellectual life. While some theorists, most notably Guido Landra, advanced a racial theory parallel to that in Nazi Germany, others favored a more “spiritual” or “Mediterranean” approach, which drew upon religious and cultural traditions in suggesting an irreconcilable difference between the Italian and Jewish worldviews. The figure of Julius Evola, a somewhat eccentric intellectual who has aptly been described as “to the right of fascism,” is especially identified with 26 27

See Fubini, La condizione giuridica dell’ebraismo italiano, 51–62. On “scientific” racism in Italy, and the connection between anti-Jewish and colonial policies, see Nel nome della razza: il razzismo nella storia d’Italia 1870–1945, ed. Alberto Burgio (Bologna: Il Mulino, 1999); Giorgio Israel, Il fascismo e la razza: la scienza italiana e le politiche razziali del regime (Bologna: Il Mulino, 2010). The question of when exactly Mussolini turned against the Jews is the subject of extensive debate. An emerging body of work suggests that the turning point came earlier than previously thought, in the early 1930s or even before that, and that much of the change was attributable to Mussolini’s personal views as opposed to political opportunism: From this perspective there was arguably no “change” at all but a coming to fruition of long-held attitudes under appropriate circumstances. See generally Giorgio Fabre, Mussolini razzista: dal socialismo al fascismo: la formazione di un antisemita (Milan: Garzanti Libri, 2005); Claretta Petacci, Mussolini segreto: diari 1932–1939 (New York: Rizzoli, 2009), 422–5 (entries for October 9 and 11, 1938; Mussolini calls Jews “pigs” [porci] and “reptiles” and adds with some prescience: “I’ll kill them all!”); but see ibid., 424–5 (Mussolini makes similarly hostile if less violent comments about French and some Italians as well).

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The Fascists and the Jews of Italy

these efforts.28 The names Telesio Interlandi and Giovanni Preziosi likewise deserve mention although lacking Evola’s intellectual cachet. Although Evola remained primarily a theorist, the first two men were to become involved on a more practical level, Interlandi as editor of the antisemitic publications Il Tevere and La Difesa della Razza and Preziosi as (eventually) head of the antisemitic bureaucracy in the post-1943 era.29 Conservative circles within the Church itself – if less overtly hostile – likewise reflected what by today’s standards would probably be considered antisemitism, worrying about the influence of Jews on Italian society and calling for what has been described with a touch of irony as “amicable segregation” (segregazione amichevole) between the two communities.30 How important these theories were to the Race Laws remains a disputed question, and (until 1943 at least) the laws were administered primarily by bureaucrats rather than by “philosophical” anti-Semites. But they helped to create the environment in which the laws were enacted and enforced, and provided them with an intellectual legitimacy and authentic “Italian” character notwithstanding postwar efforts to depict them as merely a foreign import. As is often the case in such movements, action was preceded by words. The years 1936 to 1938 witnessed a broad press and propaganda campaign against the Jews, emphasizing the supposedly disproportionate influence of the Jews in Italian society and their alleged links with anti-Fascist elements in and outside 28

29

30

See Francesco Cassatta, A destra del fascismo: profilo politico di Julius Evola (Bollati Boringhieri, 2003); Gianni Scipione Rossi, Il razzista totalitario: Evola e la leggenda dell’antisemitismo spirituale (Rome: Rubbettino, 2007). Evola continued to develop his thought until his death in 1974. For an excellent, English-language summary of Italian racist thought, see Aaron Gillette, Racial Theories in Fascist Italy (London: Routledge, 2003). Gillette is particularly effective in describing the conflict between “Nordic” racism, which followed a more or less German model, and the Mediterranean variety, which tended to be more cultural in nature. As a general rule the latter view was triumphant, but the strands remained fluid and the result was a bad one for the victims in either case. An even more comprehensive summary is provided in Israel, Il fascismo e la razza, which divides Italian antisemitism into numerous currents including “spiritualistRomanic” racism, biological racism, political racism, and other categories, in some cases so tied to the idiosyncrasies of their individual proponents that it is difficult to place them on a spectrum (all ibid., 233–87). The question of antisemitic theory merges with broader questions about the nature of Fascism, which remained something of a composite regime until 1943, dominated by Mussolini but retaining significant aspects of Catholic and even monarchist influence; while postwar apologists tend to regard this period as authentic Fascism and the later, post-1943 era as a German imposition, it is also possible to see Fascism as having revealed its true nature – in antisemitism and other matters – only in this later, generally harsher era. See text accompanying notes 35–8. See generally Ruggero Taradel and Barbara Raggi, La segregazione amichevole: “La Civilta` Cattolica” e la questione ebraica 1850–1945 (Rome: Editori Riuniti, 2000). An authoritative source on Vatican attitudes toward the Jews is Giovanni Micoli, “Santa Sede e chiesa italiana di fronte alle leggi antiebraiche del 1938,” Studi Storici 3 (1988). On the evolution of Italian thought on Jews and Judaism in the 1930s, see generally Valerio Marchi, “‘L’italia’ e la ‘questione ebraica’ negli anni trenta,” 3 Studi Storici 811 (1994).

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the country. The ideological campaign culminated in the July 1938 issuance of the so-called Manifesto of the Racial Scientists, an unusual document that (inter alia) announced that there existed a pure Italian race or people (una pura “razza italiana”) that was of essentially Aryan origin, that race was a purely biological concept, that the Jews were not to be considered part (non appartengono) of the Italian people, and that it was time for the Italians to declare themselves openly racist (francamente razzisti) in their political and social policy.31 In the fall of 1938, the Fascist Grand Council followed this up with a full and comprehensive package of antisemitic laws. In a number of separate enactments, subsequently repeated in a single unified text, these “Provisions for the Defense of the Italian Race” took a major step toward eliminating Jews from the political, social, and cultural life of the Italian nation. All Jews were immediately banned from public elementary and secondary schools and from Italian universities, as students or as teachers, although certain university students were allowed to complete their degrees.32 The law similarly barred Jews from membership in the Fascist Party and employment in various public or quasi-public entities. Marriages between Jews and Aryans were prohibited, with Jews for this and other purposes defined to include anyone with three Jewish grandparents, even if they were otherwise irreligious or even a practicing Catholic. (Various factors, relating primarily to religious or community identification, were used as “tiebreakers” in cases where an individual had two Jewish grandparents.) The laws also restricted Jewish ownership of real and personal property and otherwise limited economic activities of Jewish citizens, although exempt status (discriminazione) was to be available from these latter provisions for combat veterans, original members of the Fascist Party, and various additional categories of “meritorious” individuals as defined under the law. Foreign-born Jews were subjected to even harsher restrictions with the goal of their eventual removal from the country altogether. A special bureaucracy, the Race and Demography Office (Demorazza), composed primarily of career bureaucrats although including some more ideological antisemites, was set up in the Interior Ministry to handle administration and interpretation of the Race Laws, jurisdiction over which was specifically withheld from the 31

32

The document was officially titled “Il fascismo e i problemi della razza” but has become universally knows as the “Manifesto degli scienziati razzisti.” A full text is quoted in Michele Sarfatti, Mussolini contro gli ebrei: cronaca dell’elaborazione delle leggi del 1938 (Turin: S. Zamorani, 1994), 18–20. The Manifesto and the ensuing laws were accompanied by an intensified propaganda campaign much, although by no means all, of which appeared in the pages of a new periodical, La Difesa della Razza, which began publishing in August 1938; the latter included a substantial amount of anti-black as well as anti-Jewish propaganda and frequently linked the two. See generally Francesco Cassatta, La Difesa della Razza: politica, ideologia, e immagine del razzismo fascista (Turin: Einaudi, 2008). These provisions are described in greater detail in Chapter Two. Razza can also be translated as “people,” but “race” is customary in this context.

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Italian courts, although Mussolini himself (who also served as Interior Minister) retained ultimate power and personally decided a surprising number of cases of exemption and other cases.33 The drafting and administration of the Race Laws is, of course, the principal theme of this book; this discussion can serve only as a general background. But it may be useful to clarify certain broad points at the outset. The first is that – notwithstanding postwar rationalizations – many or most of the Race Laws were, in fact, enforced, albeit with different degrees of enthusiasm and (in most cases) without the violent antisemitic agitation that characterized the equivalent period in Germany and other countries. In particular the laws regarding schools, employment, and mixed marriages appear to have been rather rigorously followed, although the first had the ironic result of the dramatic expansion of Jewish schools, which arguably increased the Jewish consciousness of the newly dismissed students. A higher degree of laxity appears to have attended the laws regarding Jewish property, partly because it is easier to evade laws affecting property than those affecting one’s person, and partly because the Fascists – who tended to exaggerate the Jewish role in the economy – were loath to take actions that might negatively affect the stock and other financial markets. This created the unusual state of affairs in which Jewish street hawkers were thrown out of work, for failure to obtain the requisite licenses, whereas wealthy Jews could continue to own large amounts of stock without government interference. (This “vertical inequity” may also account for some of the conflicting reports about the nature and intensity of the Race Laws: Most books and memoirs were written by well-educated, northern Italian Jews, which may explain the persistence of popular myths about Italian behavior toward Jews in this period.)34 How particular provisions were or were not enforced, and what factors accounted for these differences – subject matter, geography, time period, the institution (courts, bureaucracy, local police, and prefects’ offices) in question – will constitute a major theme of the ensuing chapters. A second point is that, as time passed, the general trend was toward harsher rather than laxer enforcement of the Race Laws. This is reflected in the files of the Demorazza, which show a reduction in the percentage of exemption applications granted during the years 1939 to 1943 together with other, more subjective indications of a hardening of attitudes toward the Jews in this period. Part of this change is attributable to Italy’s entry into World War II (June 1940) and the corresponding identification of the Jewish community with the regime’s physical as well as its psychological enemies. Institutional pressures reinforced this tendency: Having promulgated the Race Laws, the government began to look foolish if it did not enforce them, and the racial bureaucracy inevitably 33 34

The nature and function of the Demorazza are to be discussed further. The Jewish community of Rome has historically been somewhat less prosperous, albeit more numerous, than that of the northern Italian cities.

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sought new people and activities to which the laws could be applied. As the war began to go badly for Italy, the persecution intensified, culminating in the May 1942 “work call up” (precettazione al lavoro) and the June 1943 proposal, never formally implemented, for a “total mobilization” of Jewish labor in state-directed work camps. Although the former was enforced spottily and the latter preempted by Mussolini’s overthrow, these proposals suggest a clear intensification of the antisemitic campaign, and the possibility that Italian Jews would have found themselves in some form of concentration camps even in the absence of German occupation.35 These changes too are discussed further in the ensuing chapters. In the event, the Allies invaded Sicily in July 1943, followed by Mussolini’s overthrow on July 25 and an armistice between the Allies and the new Badoglio government, which was announced on September 8, 1943. (The Race Laws remained in effect during this interim period.) At this point, the northern twothirds of Italy, including the vast majority of the Jewish population, was occupied by Nazi Germany, and the story of Italian Jews became part of the larger story of Holocaust, death, and survival in German-dominated Europe. Yet even here, the break with the past was not total. Fascist militias, organized by the new Italian Social Republic (RSI), assisted the Germans in capturing and deporting Jews, while the Germans themselves relied on a Fascist era census in identifying their Jewish victims.36 A reconstituted bureaucracy, headed by the fanatical antisemite and longtime regime propagandist Giovanni Preziosi, was charged with the administration of a new and more extreme set of antiJewish laws, under which Jews were treated as an enemy race and subject to physical internment as well as complete property confiscation. Liliana Picciotto has estimated that of the nearly seven thousand identifiable Italian Jews killed in the Holocaust – about 20 percent of the prewar total – just fewer than half were initially arrested by Italian police or paramilitary forces, a figure that would be higher if the October 1943 deportations from Rome were excluded.37 35 36

37

See generally Sarfatti, Gli ebrei nell’Italia fascista, 183–7. The RSI, also known as the “Republic of Sal`o” or simply “Sal`o,” was headed by Mussolini although subject to a significant measure of German influence. A copy of the principal antisemitic legislation adopted by the RSI is found at the Fondazione Centro di Documentazione Ebraica Contemporanea (CDEC) website, http://www.cdec.it/home2.asp?idtesto=589 &idtesto1=647&son=1&figlio=558&level=5. On the confiscation of Jewish property see generally Commissione per la ricostruzione delle vicende che hanno caretterizzato in Italia le attivita’ di acquisizione dei beni dei cittadini ebrei da parte di organismi pubblici e privati: Rapporto Generale (hereinafter Anselmi Committee Report), April 2001; Ilaria Pavan, Tra indifferenza e oblio: le consequenze economiche delle leggi razziali in Italia 1938–1970 (Milan: Le Monnier, 2004). The continuity between Fascist antisemitic policy before and after 1943 is discussed in greater detail in Chapter Five. See Liliana Picciotto, Il libro della memoria: gli ebrei deportati dall’Italia (1943–1945) (Milan: Mursia, 1991), 29, table 1.1.e (citing a figure of 6,806 victims, of whom 1,951 were arrested by Italians, 2,444 by Germans, 332 by Germans and Italians together, and 2,079 unknown). The total number of victims rises to more than 8,500 when those who died in detention or were

20

The Fascists and the Jews of Italy

While the majority of the Italian population was arguably sympathetic to the Jews – and in numerous cases protected and sheltered them from their “nazifascist” oppressors – only the Allied victory in the spring of 1945 saved the Italian Jews from total destruction.38 Together with historical background, it may be useful to provide further background on the institutions and decision-making processes that will be discussed in the succeeding chapters. The principal responsibility for the enforcement of the Race Laws fell to the Demorazza in the Interior Ministry as described above. Although charged with enforcing an openly racist policy, the Demorazza – which had no more than about forty employees devoted to racial matters – appears to have been composed at least partially of career bureaucrats rather than ideological antisemites, some of whom were drawn from the staff of the demography office that existed before the Race Laws.39 The Demorazza was moreover essentially a Rome-based operation and relied on the regular police and prefects’ offices (questura and prefettura) in each province for the day-to-day enforcement of the racial program. Indeed, the failure to establish a large-scale, ideologically committed antisemitic bureaucracy, on the model of the German SS and similar groups in other countries, will be observed to

38

39

missing after the war are included, and still higher if those killed in the so-called Dodecanese Islands (primarily Rhodes), then under Italian jurisdiction, are included. See Liliana Picciotto Fargion, “The Shoah in Italy: Its History and Characteristics,” in Jews in Italy under Fascist and Nazi Rule, 1922–1945, ed. Joshua Zimmerman (New York: Cambridge University Press, 2005), 219. For a sophisticated treatment of the armistice and the onset of the German occupation, see Elena Agarossi, A Nation Collapses: The Italian Surrender of 1943 (Cambridge: Cambridge University Press, 2000). Like everything else involving the Fascist era and the Resistance, the behavior of ordinary Italians during the Holocaust is the topic of furious debate. Particularly vehement has been the discussion of the role of the Catholic Church, which – while the Church was headquartered on the Italian peninsula – has ramifications for a much wider area. Probably the most thorough study of the issue, Under His Very Windows, by Susan Zuccotti, concludes that – while there were unquestionably many individual Catholics who assisted Italian Jews during the Holocaust – there was no general Vatican directive on the subject and Pope Pius XII maintained a generally diffident posture. However, Zuccotti’s position has been challenged by supporters of Pius XII, and the issue – together with the broader question of the Church’s action or inaction during the Holocaust – is unlikely to be resolved until such time (if any) as the complete Vatican archives are released. An internal document suggests that the Demorazza, in May 1941, employed about seventy individuals, including support staff, of whom nine worked on general matters, twenty-six on specifically racial issues, and the remainder on demography, citizenship, or other areas. Elenco del Personale, May 22, 1941, Archivio Centrale dello Stato, Ministero dell’Interno, Direzione Generale Demografia e Razza: Affari Diversi (1938–1945) B. 14, N. 30000/R. That is not to say that the office was lenient in its interpretation of the laws or that it did not involve substantial controversy, especially at the top: indeed, at least one leadership change (the replacement of the “Mediterraneanist” Antonio Le Pera as director in 1942) had some ideological overtones although also reflecting personal conflicts. See Gillette, Racial Theories in Fascist Italy, 174–5. But it does suggest an important difference in the resources allocated to the racial program as compared to Germany and other countries.

Introduction: On the Historical Significance of the Leggi Razziali

21

constitute a significant difference between the Italian and German models of antisemitism – not necessarily a weaker or more sympathetic, but a very different organizational model, which parallels broader differences between Fascism and Nazism and was to have important consequences for the Italian Jews.40 The discussion of the Demorazza leads to a further point about the division of authority in the Fascist state. A starting point for the study of Fascism is the notion of a composite regime, with the Church and the monarchy – at least until 1943 – retaining a role that would have been unthinkable in Hitler’s Germany or Stalin’s Soviet Union.41 Closely related is the notion of an evolving system, with a tendency toward greater harshness (if never quite approaching that of Hitler or Stalin) with the passage of time. Each of these will constitute important themes of this study: We will observe the Demorazza, for example, being frustrated by the finance or other ministries, or by the indifference of local prefects, in a way that seems surprising for a “totalitarian” country and may contribute to a sense that the race laws were half-hearted or unserious in nature. None of this is necessarily the case, but here again there are vital differences between Italy and other countries, which provide significant insights into Italian history and the broader Holocaust era. Finally – and at the risk of some “spoiler” effect – it is worth inserting an early word about the Italian judiciary. While Italian judges did not as a general rule impede the progress of the Race Laws, there were important exceptions, and the judiciary retained a measure of independence that was probably greater than that of the bureaucracy (and certainly greater than that of contemporary German jurists). Many of the findings of Muller, Weisberg, and other scholars will thus be only incompletely relevant to the Italian situation.42 On the other hand, the very independence of Italian judges leads to a painful question: Given the many opportunities for resistance – with or without a capital “R” – why did the laws remain so successful, and why was more not done to ameliorate them? The question will be observed to be both persistent and difficult, and the line between “resistance” and “collaboration” to be blurrier and more elusive than is commonly recognized.

40 41 42

These differences, together with those described in the following paragraph, are discussed further in Chapter Three. See Chapter Three. This issue is discussed further in Chapter Four.

2 Legislation: Race, Religion, and the “Italian Model” of Antisemitism

The Race Laws were enacted in the fall of 1938, the culmination of an ongoing propaganda campaign and the publication, several months earlier, of the so-called Manifesto of the Racial Scientists, which established their essential philosophical basis.1 The draftsmen2 faced two major challenges. The first was philosophical in nature: how to draft a coherent and enforceable set of antisemitic laws in a country that, at least since unification, had abjured official antisemitism and had little if any experience with race as opposed to religion as a juridical concept. The second was a practical challenge: how to draft laws that accomplished their purpose while causing a minimum amount of conflict with the preexisting legal and economic order. This problem was especially pressing with respect to mixed marriages and the “who is a Jew” issue, where the teachings of the Roman Catholic Church suggested a religious rather than a racial definition of Jewishness and accepted interracial marriages so long as they were consecrated within the Church. A parallel challenge applied in the economic area, where the government wanted to restrict Jewish influence but without causing undue damage to the country’s economic health or private 1 2

See Chapter One. The authorship of the Race Laws has been the topic of some debate, but the consensus appears to be that Mussolini and his deputy, Guido Buffarini Guidi, played a direct and substantial role in the editing if not the original drafting of the laws. See Michele Sarfatti, Mussolini contro gli ebrei: Cronaca dell’elaborazione delle leggi del 1938, 53–61 (Turin: S. Zamorani, 1994). The drafting of the Nuremberg Laws in Germany appears to have followed a similar process, with Hitler closely supervising his draftsmen and, in several cases, intervening to personally add or subtract language with his own pen. One significant difference is that the German laws to some degree responded to problems that had already arisen in the courts and bureaucracy (e.g., mixed marriages and the problem of half- or quarter-Jews) while the Italian laws were largely created against a blank slate. See Saul Friedlander, Nazi Germany and the Jews: Volume I, The Years of Persecution, 1933–1939, 146–51 (New York: HarperCollins, 1977). I have used the term “draftsmen” to reflect the reality of an essentially male authorship.

22

Legislation: Race, Religion, and the “Italian Model” of Antisemitism

23

business interests. On a more political level, the draftsmen had to strike a fine balance in adopting laws that – although plainly influenced by the German example – would appear authentically “Italian” in nature and not be seen to compromise the country’s political and cultural independence. To accomplish these conflicting goals, the authors of the Race Laws adopted the classic strategies of the legislative draftsperson: a detailed, intricate system of rules and exceptions and – in more difficult cases – a dash of deliberate ambiguity that left borderline problems to be resolved by courts and administrative agencies.3 The draftsmen further overlay the new system with a sort of gigantic transitional rule which exempted certain “meritorious” Jews (ebrei discriminati) from some of the Race Law provisions, particularly those that concerned business or economic activities. These exemptions were limited to the individuals and their immediate families, so that – while perhaps easing the initial shock – the exemptions would eventually disappear and leave all Italian Jews equally subject to the laws. Because of the existence of the discriminazione provisions – and because of a more general image of Italians as relaxed or tolerant in racial matters – it is often assumed that the Race Laws were weak or watered down in nature, and that life became difficult for Italian Jews only after the German occupation. In fact, a good case can be made for the opposite position: that the various unique features of the Italian laws made them more rather than less effective, rendering them more palatable to the domestic audience and enabling them to fit smoothly with the existing legal order as understood by judges, administrators, and ordinary Italian citizens. The Italian laws also served as a model, if a sometimes imperfect one, for other countries that were subsequently to draft anti-Jewish statutes but that (like Italy) had social and cultural features that differed from the German situation. This chapter considers the drafting of the Italian Race Laws, arguing that the laws should be seen as a model for an alternate form of antisemitic statute, emphasizing religion and culture over purely genetic factors and aimed at separation rather than immediate elimination of the offending minority, and not as a weakened or adulterated version of a German original. Instead of reviewing the entire statute, the chapter emphasizes two specific areas – the mixed marriages/who is a Jew issue and the restrictions on Jewish ownership of real property and certain businesses – that best exemplify challenges faced by the draftsmen and the ways in which they resolved them. Attention is also devoted to the discriminazione provisions, which in the author’s view represented a successful if cynical strategy to divide the Jewish community 3

On the allocation of power between courts and bureaucracy, see Chapter Four. Special commissions were instituted to resolve the issue of Aryan status and the question of exemptions for “meritorious” Jews. See Nicola Rondinone, Il “Tribunale della Razza” e la magistratura, in Loredana Garlati and Tiziana Vettor (eds.), in Il Diritto di fronte all’infamia nel diritto: a 70 anni dalle leggi razziali 195–2005 (Milan: Giuffr`e, 2009).

24

The Fascists and the Jews of Italy

by initially exempting those Jews most likely to challenge the laws and to attract popular sympathy in doing so. Following this, the chapter considers the influence of external factors, including the Nuremberg Laws, the Catholic Church, the Italian experience in Africa, and (to a somewhat lesser extent) the American and other racial laws, concluding that – while no single factor played a dominant role – each was significant in affecting the nature and development of the racial scheme. The chapter concludes by considering the historical significance of the Race Laws as a model for at least temporarily nongenocidal but still highly destructive racial programs, and as an example of the power of lawyers and legal thinking in creating evil as well as good results. From a Racial to An (at Least Partially) Religious and Cultural Model: the Mixed Marriage and “Who is a Jew” Provisions Like most racial statutes, the leggi razziali contained core and peripheral provisions. The core consisted of rules designed to prevent the physical mixing of Jewish and “Aryan” Italians, by forbidding mixed (i.e., interracial) marriages, separating the two races in schools, universities, and various forms of social organizations, and so forth.4 The periphery consisted of rules that sought to reduce the supposed economic and cultural power of the Jewish community, by banning Jews from specified occupations or from the ownership of more than specified amounts of property.5 There was an inevitable overlap between these two categories, since the prohibition of, for example, specified occupations resulted in both economic damage and physical separation; but they remained conceptually and operationally distinct. Interestingly, the discriminazione provisions applied, for the most part, to the peripheral but not to the core provisions, so that the distinction was important in practical as well as theoretical terms. The challenges faced by the draftsmen began with the core provisions, notably the prohibition of mixed marriages and the distinct but related issue of who was defined as a Jew under the laws. This issue proceeded from an initial contradiction: While the laws were in theory based upon race or ethnicity rather than religion, there was no reliable definition of Jewishness that did not 4

5

Regio decreto-legge 17 novembre 1938-XVII, n. 1728: Provvedimenti per la difesa della razza italiana [hereinafter RDL n. 1728], Art. 1–9, 11–12; Regio decreto-legge 5 settembre 1938, n. 1390: Provvedimenti per la difesa della razza nella scuola fascista. Race has been defined as “a family, tribe, people, or nation belonging to the same stock.” An alternate definition is “a class or kind of people unified by shared interests, habits, or characteristics.” Webster’s Online Dictionary, www.merriam-webster.com (2012). Most modern scholars believe that the concept of race is either altogether invalid or is to be understood as reflecting social rather than biological factors. See Chapter One. Razza in Italian can also be translated as “people” but the convention – reflecting at least superficial adoption of a biological rather than a purely religious definition of Jewish, Italian, and other terms – is to translate it as “race.” RDL n. 1728, Art. 10, 13.

Legislation: Race, Religion, and the “Italian Model” of Antisemitism

25

depend upon religious records or their absence, in the first place. The same issue had been faced in Germany but was magnified in Italy by the more immediate presence of the Church, which regarded converted Jews as Christians and had no religious basis for distinguishing them from other Catholics. The issue was particularly pronounced with respect to mixed marriages, prohibition of which (at least when celebrated by a Catholic priest) would directly contradict the Church’s authority over marriage as had been recognized in the 1929 Lateran accords. The issue had symbolic as well as practical importance, since the Italian people, while having a long history of discrimination based upon religious difference, had little if any experience with intra-religious racial laws. Since these issues presented such an obvious theoretical and practical problem, it is worth considering their legislative history in somewhat greater detail, as reflected in the Demorazza correspondence files and in the ever-changing legislative drafts. These documents suggest two main themes: a tendency to consider religious and cultural as well as racial evidence, and (what is closely related) an almost obsessive focus on the status of Jewish converts to Catholicism, who appear to have received more attention than the rather larger number of ordinary, unconverted Jews to whom the laws applied. While not all of these concerns were reflected in the final legislative language, they suggest the thought patterns and institutional pressures that went into creating it and give some hint of the differences between the Italian laws and those in Germany and other countries.6 As related above, these differences generally suggest not the watering down of a preexisting external model, but the creation of a new, uniquely Italian approach to the antisemitic problem. Legislative Drafts: Hypotheticals, Tiebreakers, and the Absence of a Mixed-Race Category An example of both the above tendencies is contained in the legislative history of the Race Laws definition of Jew, which has been preserved in surprising detail and is accompanied by a detailed series of handwritten notes and diagrams.7 6

7

The provision as drafted provided that Jews included anyone with two Jewish parents, even if they belonged to another religion; who had one Jewish and one foreign parent; who had a Jewish mother and an unknown father; and who, although having only one Jewish parent, either belonged to [appartenga a] the Jewish religion, was registered with a Jewish community, “or had made, in any other way, a demonstration of Jewishness” (ovvero abbia fatto, in qualsiasi altro modo, manifestazione di ebraismo). A person with only one Jewish parent would not be considered Jewish if, as of October 1, 1938, they belonged to another religion. RDL n. 1728, Art. 8. The number of intermarried couples and their offspring was by no means insignificant in the 1930s. See Marie-Anne Matard-Bonucci, “L’Italia fascista e la persecuzione degli ebrei,” 142, Table 5 (2008) (citing an aggregate Demorazza figure of 6,820 mixed marriages among 15,609 total marriages affected although noting that most of these did not identify with the Jewish community). The ensuing documents are from Archivio Centrale dello Stato, Ministero dell’Interno, Direzione Generale Demografia e Razza: Affari Diversi (1938–1945) (hereinafter “Demorazza”), b. 1, ff. 1 and 2. The diagrams are reproduced later in this chapter. Because the November 1938 Race

26

The Fascists and the Jews of Italy

The most intriguing of these are a series of “family tree” sketches (Figures 1–8) that attempt to delineate between Jews and Aryans in cases involving one or more mixed marriages in past generations. The issue here is, technically speaking, the “who is a Jew” rather than the mixed marriage question, but the two are closely related.8 The sketches use circles or balls to indicate individuals and solid lines to indicate the existence of a marital relationship, as in typical family tree diagrams.9 The handwritten notations proceed to “keep score” regarding the Jewish or Aryan affiliation of the members of each generation, either assigning them to particular groups or raising unresolved questions in the more difficult cases. (It appears to have been decided by this point that there would be no hybrid or Mischlinge category – an important distinction from the German model – so that “tiebreakers” or one kind or another would be required in borderline cases.)10 Figure 1 presents a simple case: the children of a married couple, each of whom had two Jewish parents, who have a total of four Jewish grandparents and are hence of pure Jewish blood (sangue ebrea pura).11 By contrast,

8

9

10

11

Laws were generic in nature and left many important issues unresolved – and because the Demorazza files frequently juxtapose documents written at different times – a number of these documents date from 1939 and even 1940: They are included in this chapter for thematic reasons and because they concern the underlying content of the Race Laws rather than their application to specific cases, which is discussed in Chapter Three. The definition of Jew for Race Law purposes is related to but conceptually distinct from the mixed marriage issue, the latter concerning the question of who is permitted to marry and the former the status of the children of the marriage and their descendants, together with that of the non-Jewish (and in some cases the Jewish) spouse. In practice, the issues tend to overlap, so that (for example) a policy that considered converts to Catholicism after a specified date to remain Jewish for Race Laws purposes might also affect the validity of their marriages to other Catholics after that date, while a policy that respected (or did not respect) the validity of certain marriages would have implications for the status of the marriage’s offspring. The ensuing discussion considers primarily the “who is a Jew” problem but with implications for both questions. The distinction between Jews and Aryans is at times hard to establish in the diagrams. In certain instances, Jews appear to be indicated by darkened circles and Aryans by white or incompletely darkened circles while in other diagrams the distinction is less clear. It is possible that there were differences in color or shading of the original documents that do not show up in photocopied versions. The analysis is not affected as the diagrams are accompanied by written notes that explain the racial/religious affiliations of the relevant individuals. German law distinguished between so-called full Jews; Mischlinge of the first degree (generally speaking, those with two Jewish grandparents) and those of the second degree (one Jewish grandparent), who were subject to various levels of discrimination. See Saul Friedlander, Nazi Germany and the Jews, Volume I: The Years of Persecution (hereinafter “Friedlander, vol. I”) (New York: Harper Perennial, 1997), 149–50. Figures 1–4 are part of a handwritten memorandum bearing the simple title “Definizione di ebreo” (Definition of Jew), which, in turn, is attached to a larger bundle of documents, including typed and handwritten papers and copies of newspaper articles and other previous documents, bearing the similarly generic title “Commenti alle questioni sulla razza” (roughly, Comments on Race Matters). The documents appear to consist of a conceptual reflection or “brainstorming” of the definitional question before it had been finally resolved, what in Britain or America would be called legislative history or in French travaux preparatoires. Demorazza b. 1, f. 1.

Legislation: Race, Religion, and the “Italian Model” of Antisemitism

27

figure 1. Definizione di ebreo [Definition of Jew], suggested treatment of full-blooded Jews (four Jewish grandparents). Demorazza b. 1, f. 1.

28

The Fascists and the Jews of Italy

in Figure 2, three Jewish grandparents result in 75 percent Jewish blood, which will nonetheless cause the children to be considered pure Jews (ebrei puri).12 These results are more or less intuitive, and so far consistent with the Nuremberg Laws. Things get interesting in Figure 3, which presents two alternate cases of 50 percent Jewish blood (i.e., two Jewish grandparents), resulting from either (1) the marriage of one person having two Jewish and the other two “Italian” parents13 or (2) the marriage of two persons, each of whom was the product of a mixed marriage (one Jewish and one Aryan parent). A footnote, barely visible at the bottom of the page, indicates that these would be treated as mixed race individuals (misti) under the German laws but does not appear to reach a decision with respect to the Italian legislation.14 Similarly, Figure 4 presents the case of children with three Aryan and one Jewish grandparent (i.e., 75 percent Aryan blood) and concludes that they are therefore Italian (quindi italiano), although it must have been known to the draftsmen that these would likewise have been considered second degree Mischlinge under the German theory.15 How were borderline (i.e., 50–50 and perhaps 75–25) cases to be resolved? What specifically was to be done with Jews who had converted to Christianity, and thus remained “biologically Jewish” but were religiously part of the Catholic community? A further series of sketches (Figures 5–8), found slightly later in the Demorazza files and apparently in the same handwriting, hint at the complicated thought process that went into resolving these questions.16 Figure 5 reflects ongoing doubt regarding the treatment of the children of mixed marriages, who are represented by the phrase “mixed children” (figli misti) and underneath it the phrase “Jews [or] non-Jews for purposes of the law?” (a senso leggi ebrei . . . non ebrei?).17 The document also includes a number of unresolved questions that appear to concern, inter alia, the treatment of unmarried adults in a larger family and the extension of Jewish or Aryan status to second-order relatives.

12 13

14 15 16

17

Ibid. The repeated lapsing from “Aryan” to “Italian” is an interesting indication of the drafters’ mindset, and an obvious indication that they did not view Jews as genuine Italians. Such attitudes die very slowly. In a correspondence preceding one of my own Italian trips, an archivist wrote to me that her facility had “materials pertaining to Jews and also Italians affected by the racial laws,” or words to that effect. Demorazza b. 1, f. 1. Ibid. Similar to the previous drawings, Figures 5–8 are handwritten and appear in a group of typed and handwritten documents this time bearing the title lavori preparatori [i.e., travaux preparatoires or legislative history.] Three immediately preceding sketches, which discuss complex family structures but do not address issues mentioned in the text, are omitted. Demorazza, b. 1, f. 2. Ibid.

Legislation: Race, Religion, and the “Italian Model” of Antisemitism

29

figure 2. Definizione di ebreo [Definition of Jew], suggested treatment of three-quarter Jews (three Jewish grandparents). Demorazza b. 1, f. 1.

30

The Fascists and the Jews of Italy

figure 3. Definizione di ebreo [Definition of Jew], questions regarding treatment of 50 percent Jews (two Jewish grandparents). Demorazza b. 1, f. 1.

Legislation: Race, Religion, and the “Italian Model” of Antisemitism

31

figure 4. Definizione di ebreo [Definition of Jew], suggested treatment of one-quarter Jews (one Jewish grandparent). Demorazza b. 1, f. 1.

32

The Fascists and the Jews of Italy

figure 5. Questions regarding treatment of figli misti [mixed children]. Demorazza b. 1, f. 2.

Legislation: Race, Religion, and the “Italian Model” of Antisemitism

figure 5 (continued)

33

34

figure 5 (continued)

The Fascists and the Jews of Italy

Legislation: Race, Religion, and the “Italian Model” of Antisemitism

35

Figures 6–8 present a series of increasingly complex hypotheticals involving Jews who were baptized (battezzato) and converted on various different dates, and raise the question of the treatment accorded to their offspring, whose biological and religious affiliations would accordingly diverge from one another. Thus, Figure 6 describes the situation resulting from the marriage of a Jew and an Aryan some time before 1938, whose children then proceeded to marry either Jews (case 1) or Aryans (case 2), resulting in various mixes of Jewish and Aryan blood in the next two generations.18 Although the sketches are somewhat ambiguous, they appear plainly to be taking into account three different factors – biology, religion, and family name (cognome) – in allocating individuals between the Jewish and Aryan categories, as well as distinguishing between baptisms and conversions undertaken prior to the imposition of the laws and those made too late (“non fatto in tempo” or “non fatto prima del 1 ott”) to have a legal effect. Similarly, Figure 7 considers a number of individuals in the same family, all of whom were religiously Christians (“religiosamente tutti cristiani”) but who were biologically mixed and had Aryan family names: As in Figure 5, the treatment of these individuals for legal purposes (giuridicamente) is simply left blank.19 Figure 8 considers a further hypothetical of individuals proceeding from an initial union of an Aryan and a converted Jew, who were thus religiously Christian (albeit some with “late” baptisms) but biologically mixed and bearing a Jewish surname; in this latter case, the issue appears to be resolved in favor of Aryan status.20 What is noteworthy about these sketches is less the results, which were in any case superseded by the published statute, than the reasoning process. Rather than modifying the Nuremberg Laws, it seems clear that the draftsmen are rethinking the issue of mixed marriages and the definition of Jew essentially from scratch. It seems equally clear that, notwithstanding the nominally “racial” character of the laws, the authors are setting up what is in effect a multifactor scoring system, in which an individual’s race, religion, and even their family name are taken into account in determining what legal category a person should be placed in.21 It is true that in certain cases race trumps religion, especially when a person belongs 75 percent or more to one racial group and the relevant baptisms or conversions came too late to be legally effective. This was also true in the final legislation, which theoretically proceeded from a racial approach but treated the offspring of mixed marriage according to a multipart, 18 19 20 21

Ibid. Ibid. Ibid. The exclusion of a mixed race or Mischlinge category – more or less inevitable under a purely racial system – appears to have been accomplished relatively early in the process. Cf. Friedlander, vol. I, pp. 149–50 (describing German racial classifications).

36

The Fascists and the Jews of Italy

figure 6. Treatment of offspring of marriage between Jew and Aryan before 1938, when the Race Laws first came into effect. Demorazza b. 1, f. 2.

Legislation: Race, Religion, and the “Italian Model” of Antisemitism

37

figure 7. Treatment of children who were of Christian religion but had biologically mixed parentage. Demorazza b. 1, f. 2.

religious or cultural test.22 But it is noteworthy that, from relatively early in the drafting process, the authors were considering religious and cultural factors 22

See note 6. The importance of religious and cultural tests, and the emphasis on cultural considerations in the legislative history, cause me to disagree in emphasis if not analysis with Michele

38

The Fascists and the Jews of Italy

figure 8. Treatment of offspring of marriage between Aryan parent and converted Jew. Demorazza b. 1, f. 2.

Sarfatti, who sees the Race Laws as having adopted a primarily “racial-biological” approach ` perto the Jewish problem. See Michele Sarfatti, Gli ebrei nell’italia fascista: vicende, identita, secuzione (Turin: Einaudi, 2000), 159–61. My own view – which I suspect others may share – is that an essentially traditional discourse lay below the surface of the nominally “scientific”

Legislation: Race, Religion, and the “Italian Model” of Antisemitism

39

(e.g., family names) together with more purely racial logic, and (as best one can determine) attempting to minimize the conflict between secular and religious categories whenever it was possible to do so. Far from a hasty, watered-down version of the German precedent, one sees a rather sophisticated – if at times clumsy – effort to establish a largely new model.23 While race often trumps religion, the opposite is also sometimes true, a fact indicated by an interesting memorandum that appears in the Demorazza files accompanying Figures 1–4. This memorandum, which appears in both a typed and a handwritten form, considers some of the same potential conflicts as the sketches and makes an explicit allusion to the differences between the German and Italian approaches. According to the memorandum, “the presence of elements of the Jewish race in the Kingdom from remote to more recent times, the lack of legal dispositions regarding race, and the uncertain dispositions by ecclesiastical authorities regulating marriages between different religions, have given rise in the Italian and Jewish populations [sic] to the following factual situations.”24 The memorandum then proceeds to list five different situations, ranging from pure Jews (i.e., those with four Jewish grandparents) to 75 percent Jews (three Jewish grandparents) to more ambiguous cases (50 percent Jews who are the product of a marriage between a Jew and an Aryan; 50 percent Jews who are the product of a marriage between two mixed-blood parents; and 25 percent Jews resulting from the marriage of one Aryan and one mixed-race parent).25 A footnote recognizes that, “according to the German theory,” the two 50 percent cases would be considered either Mischlinge or pure Jews “because of the assumed predominance of the Jewish blood (plasma ebreo) over the German.”26 Thus, the text continues, taking account solely of biological criteria, one would presumably place the 75 percent Jews or Aryans with their respective categories and treat the 50–50 cases as mixed-race persons. “But integrating biological criteria with the racial superiority of Italian blood and with [one’s] personal ethical, religious, and political manifestations” (emphasis added), a different result would be achieved. The memorandum then proceeds to propose a test – similar to that eventually adopted – in which the

23

24 25 26

statute. For a thoughtful treatment of the combination of racial, national, and religious elements in Fascist antisemitism, noting the hybrid nature of Italian thinking and its differences from the German model, see Gene Bernardini, “The Origins and Development of Racial Anti-Semitism in Fascist Italy,” Modern History 49 (1977). It must be noted that even the “racial” test was to some degree religious in nature, since it depended upon church records to establish the identity of one’s ancestors, a problem also encountered in Germany. In this sense, the racial test might better be described as a test of the religion of one’s ancestors, while the religious test emphasized one’s own religious identify. On the response of the Christian churches to anti-Jewish measures in Germany, see Friedlander, vol. I, pp. 83–7, 326–8. Memorandum, Definition of Jew [Definizione di Ebreo], Demorazza, b. 1. f. 1. Ibid. The memorandum uses the term “Italian” for Catholic or Aryan throughout. Ibid. The footnote notes accurately that membership in the Jewish faith has historically been determined by the religion of the mother, although the precise relevance of this point is unclear.

40

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100 and 75 percent Jews would be considered Jewish, but all of the remaining categories (i.e., 50 or 25 percent Jews, that is, most of the likely disputed cases) are to be presumed Aryans unless they manifest one of the five indicia of Jewishness contained in the memorandum.27 The memorandum is fascinating because it suggests the adoption of a partially religious or cultural as opposed to a purely biological approach, and adds two further logical corollaries to that approach. The first is that there is to be no Mischlinge or mixed-race category. (One can be a genetic hybrid, but a religious hybrid – at least in 1938 – was somewhat less probable.) The second, more fascinating difference is the notion that Italian-ness, in its racial and cultural manifestations, is inherently stronger than Jewish identity, so that essentially all borderline cases will be presumed to be Aryans unless a conscious choice has been made to affiliate with the Jewish community. This is philosophically inconsistent with the German system, which tended to regard any significant presence of Jewish blood as contaminating, and (by extension) any biological model: If Jewishness is a disease or poison, it seems strange to assume that a 50 or 25 percent Jew will be rendered inoffensive by his or her failure to take positive steps to identify with the Jewish community, behavior that has religious or cultural but no biological significance. None of this suggest that the Italian approach was “softer” or more forgiving than that in other countries – rather that it had a somewhat different philosophical basis, and was anchored in religious and cultural conceptions of Jewishness rather than a truly scientific racial model. The Demorazza Correspondence: Of Mixed Marriages and “Innocent” Spouses I have noted that the draftsmen seemed disproportionately focused upon the mixed marriage problem, which they tended to approach (like other issues) from a religious rather than a purely racial perspective. A key to this emphasis may be found in the Demorazza correspondence file.28 The large majority of the letters, many of which were prepared or forwarded by Vatican or other 27

28

The criteria are membership in a Jewish community on or after January 1, 1938; profession of Judaism after 1931; marriage to a Jewish spouse after October 1, 1938; children educated in or professing the Jewish religion after October 1, 1938; or individuals “who otherwise provide clear evidence of activity in the Jewish community” (che abbiano comunque prove manifeste di attivit`a nel campo ebraico). Ibid. Religious and cultural factors also affected the treatment of some individuals under the Nuremberg Laws but the balance tended to emphasize racial criteria. A more systematic discussion of the Vatican correspondences, including a personal appeal from Pope Piux XI to Mussolini and the King on the mixed marriage problem, is contained in Susan Zuccotti, Under His Very Windows: The Vatican and the Holocaust in Italy (New Haven: Yale University Press, 2000), 49–51, 64–5. I generally agree with Zuccotti’s analysis of these issues although perhaps differing in emphasis, see note 99. The Church’s influence on the Race Laws is discussed in the text accompanying notes 95–102.

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Church officials, concern the effect of conversions to Catholicism and the mixed marriage issue. While many or even most of the suggestions in the letters were ultimately rejected, they provide important insights into the mindset of the draftsmen and the issues that they considered important during and after the drafting process. A repeated theme is the problem of the “innocent” Catholic spouses of converted or unconverted Jews, together with their minor children, who were allegedly being victimized by the Race Laws despite their Catholic religion and the absence of any ongoing identification with the Jewish community. The problem was especially difficult when the father was treated as a Jew, and therefore deprived (in the absence of discriminato status) of the ability to support financially his otherwise Catholic family. Indeed, this situation was arguably even worse than that faced by full or ordinary Jews, since an ordinary Jew might conceivably ask support from the organized Jewish community, which a convert would find difficult to do. Thus, a letter written in July 1940 by Luigi Cardinal Maglione, the Vatican Secretary of State and forwarded to the Interior Minister by Father Pietro Tacchi Venturi, who served as a sort of unofficial intermediary on racial and other matters, describes the damage to the “prestige and authority” of a racially Jewish parent in a mixed family, together with economic damage resulting when the father is a professional without discriminato status and hence unable to provide for the family in the way he had been able up to that point. “It is easy to understand that this state of things is the cause of dislocation and ruin for many of the mentioned families,” the letter continues, “who, except for the head of the family, are of Aryan stock [stirpe], in that the same Heads of Family are denied any or almost any possibility of such work, which even under the Charter of Labor is considered as ‘a social obligation.’” The letter suggests an amendment providing that discriminato status be granted to individuals in this situation, even if they otherwise lack the “exceptional merit” required by the law. According to the letter, this change would be justified by both its religious and its ameliorative social consequences; that the people in question had raised their children as Catholics and were indeed frequently themselves baptized Catholics “is a fact that cannot but have a great weight in [their] favor.”29 Describing a similar situation, although in more personal and emotive terms, was a letter from a private Italian citizen, forwarded by Tacchi Venturi directly 29

Letter from Luigi Cardinal Maglione to Father Pietro Tacchi Venturi, July 25, 1940, forwarded with covering letter to Hon. Guido Buffarini-Guidi, Undersecretary of State for Internal Affairs, Jul. 26, 1940, Demorazza b. 1, f. 1. The letter is cited by Zuccotti together with subsequent Vatican documents suggesting that – despite several rumors to the contrary – nothing substantive was done to address the problem. S. Zuccotti, Under His Very Windows, p. 65. These and the ensuing letters were written after the legislation was already in effect; they are included in this chapter because of their underlying themes and because they requested amendments to the legislation and a time when it was still fluid.

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to Mussolini in December 1940, and requesting discriminato status for a Jew in a racially mixed family. The forwarding note, handwritten by Tacchi Venturi, asks the Duce to “Listen, I pray you, to this honest father, although of the Jewish race [di razza ebraica bens`ı] but married to an Aryan Christian with Aryan and good Christian children. . . . Only you can grant him [discriminato status] and with it sustenance for the entire family” the brief cover letter concluded.30 Roughly parallel themes are reflected in an internal memorandum dated October 4, 1939, bearing the title “Family Unity and Mixed Marriages,” which argues that racially identified Jews, who had converted to Catholicism and whose spouses and children were entirely Catholic, might be treated as non-Jews for purposes of the law. “In other words,” the memorandum states, “when in a family all of the elements of nationality, religion and race are consistent for all members of the family, with the sole exception of the father or mother [who is] of Jewish origin, superseded [superato] however by complete assimilation, that single member of the family, the father or the mother, should also be considered not of the Jewish race. . . . This concession would be important to the family and demographic order and for reasons of family unit and would correspond to the spirit which has guided the legislator in all racial policy.”31 A two-page Note for the Duce, apparently written by Guido Buffarini Guidi, the effective Interior Minister,32 picks up on similar themes, noting that “it is a widely diffused opinion that the harmony of [mixed] families has been profoundly disturbed by the application of the racial provisions” and suggesting that the problem might be corrected by the granting of Aryan or discriminato status to the remaining racially Jewish, but religiously Catholic, parent. The note is especially intriguing, in that it specifically makes reference to a popular German solution to this problem, that is, the option for the Aryan partner to dissolve the marriage, but appears to opt for a different solution.33

30

31 32

33

Note from Father Pietro Tacchi Venturi addressed simply to “Duce,” Dec. 15, 1940, forwarding handwritten letter (likewise addressed to Mussolini but apparently with copy provided to the Vatican) from Guido Morelli, July 13, 1940, Demorazza b. 1, f. 2. At least one additional letter was sent by Tacchi Venturi on this subject, this time to Antonio LePera, the Demorazza director, in May 1941. Promemoria, Family Unity in Mixed Marriages, Oct. 4, 1939, unsigned memorandum in Demorazza files, Demorazza b. 1, f. 2. Mussolini held the Interior and several other portfolios with the effective minister as his theoretical deputy. Buffarini Guidi, who held a law degree and is said to have had mixed feelings about the racial laws, was executed by the Resistance in 1945. Ministero dell’Interno, Direzione generale per la demografia e la razza, Il Sottosegretario di Stato [i.e., Buffarini Guidi], Appunto per il Duce, Demorazza b. 1, f. 2. The Note also mentions a so-called Hungarian approach, that is, giving Aryan status to the racially Jewish spouse, and proposes a possible similar solution. Ibid., 1.

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It is important to note that few if any of the modifications suggested by the Vatican were adopted by the government, a situation that has led some observers to conclude that the Italian laws were essentially racial rather than religious in character. Yet, many similar themes – the reliance on religious and cultural as well as purely racial tests, the use of “tiebreaker” criteria to resolve 50–50 or even certain 75–25 situations,34 the assumption that Catholic (Italian) religious and cultural identify could trump Jewish origins in borderline cases – were reflected in the final law. The differences between the Vatican and the Italian government thus appear to have represented a question of degree rather than a sharp, categorical divergence between religious and racial models, a point we shall have occasion to revisit below. The Mixed Marriage Rules and the “Italian Model” of Race Legislation The legislative history of the mixed marriage “who is a Jew” provisions suggests a sophisticated and by and large successful effort to adapt a system of physical separation between Jews and Gentiles to Italian circumstances. In particular, the laws differed from the German model in their emphasis on religious affiliation (although this was not wholly insignificant in Germany) and in their assumption – which likewise contrasted with German practice – that the Catholic or “Italian” element overcame the Jewish element in close or contested cases. These differences appear to have been based, in large part, on the traditionally religious rather than racial nature of Italian antisemitism and the pragmatic rather than fanatical bent of the Fascist anti-Jewish campaign. The practical result of these changes was somewhat limited, affecting primarily mixed-race persons who were usually treated as Aryans rather than Jews or Mischlinge under Italian law: They made no difference to “purebred” Italian Jews, and indeed the latter do not figure prominently in the discussion. The philosophical difference is perhaps greater. Taken together, the Italian “innovations” suggest, if not the wholesale substitution of a religious for a racial model of antisemitism, then at very least a hybrid model, in which religious or cultural factors are used to resolve close cases and the background discussion – even when the racial model wins out – tends to be conducted in religious/cultural terms. Historically speaking, these factors suggest a relatively high degree of continuity with earlier forms of antisemitism and, perhaps, a somewhat reduced degree of hysteria regarding the Jewish danger and its capacity 34

The Mischlinge or meticcio (mixed race) issue also existed in the African colonies, but for both philosophical and practical reasons the concept was not transferred to the domestic Race Laws. See generally Gianluca Gabrielli, “Un aspetto della politica razzista nell’impero: il ‘problema dei meticci’,” in Passato e Presente, 41 (1997), 77–105. A meticcio concept was introduced, together with numerous other changes, in the post-1943 period.

44

The Fascists and the Jews of Italy

to infect even those with a Christian upbringing or a significant amount of non-Jewish blood. The theory of a religious/cultural discourse, under a veneer of racial theory, is also consistent with the correspondence files. As noted above, a recurring theme of such correspondence is the notion of sincere or well-meaning Catholics, notably the Aryan spouses of Jewish partners, who have been inadvertently caught up in the Race Laws dragnet, as opposed to those openly and willfully professing their Jewish faith. This lapsing into essentially religious terminology (guilt and innocence, intentional and accidental error, etc.) suggests that many Italians, including some in the government, viewed the laws as an effective re-imposition of traditional religious antisemitism rather than a radical new breakthrough. This analysis is further supported by the many references to earlier Italian practices as well as to laws in third countries that at this time were frequently based more on conservative Catholic doctrine rather than German-style racial theories.35 Guido Fubini’s view of the Race Laws as the culmination of a process that began with the Lateran Treaties (denial of group equality leading to denial of individual equality), rather than an “out of nowhere” phenomenon, appears at least partially validated by this evidence. Perhaps the most significant deviation from the religious model was the institution of the October 1, 1938, cutoff date for the offspring of mixed marriages, following which conversions to Catholicism would be without effect and converted individuals would continue to be treated as Jews under the laws. Although resulting in considerable friction with the Vatican, this provision appears to have been aimed primarily at last-minute conversions having the principal purpose of evading the laws and does not necessarily represent a fundamental shift from the religious/cultural approach in other parts of the law. We shall return to this theme in our general discussion of the Vatican and the Race Laws. While the religious or cultural aspect of the Italian laws gives them an arguably less violent, genocidal character than the German approach, it does not mean that they were invariably softer or more lenient in character, or that a solid line can be drawn between the two different systems. This is particularly true, since a religious model suggested the importance of separating practicing Catholics (including converted Jews) from obstinate or still-professing Jews who might exert a destructive or negative influence upon them – a separation 35

A particular mention is made of Hungary, although Hungarian laws by this time reflected a racial as well as a religious component. See generally Randolph L. Braham, The Politics of Genocide: The Holocaust in Hungary (Detroit: Wayne State University Press, 1981). It must be noted that the hybrid, partially cultural nature of the Race Laws refers to laws as enacted and enforced in the pre-1943 era rather than the philosophical antisemitism described in Chapter One: the latter included more overtly racial elements that were arguably expressed after 1943 and might have become more dominant had Fascism remained in power. See note 104 and the accompanying text.

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that would be difficult to achieve while any “full-blown” Jews still remained in the country. The logic of separation reaches its logical extreme in a memorandum written by Buffarini Guidi, suggesting that the existing Race Laws might eventually be supplanted by a scheme under which converted Jews were integrated into Italian society and the remainder were simply expelled from the country. The author demonstrates a humane touch by suggesting that various economic incentives rather than brute force be employed to encourage the Jews to leave the country before the final date.36 This memorandum is significant because it suggests that, from an early date and without German pressure, the Italian government was toying with the idea of a more radical and potentially brutal solution to the Jewish problem. Differing versions of this proposal appear on at least two separate occasions in the Demorazza files, together with a full statutory draft, suggesting that it was not a mere vagary but a recognition that an “intermediate” level of antisemitism would be difficult to maintain indefinitely and an eerie foreshadowing of the more aggressive anti-Jewish policy yet to come. Conflicting Goals and Creative Ambiguity: The Business and Property Rules The mixed marriage and “who is a Jew” rules reflected a conflict between a racial view of Jews and Judaism, which found expression in the German precedent and the Manifesto of the Racial Scientists, and a religious one, which was more consistent with Italian history and the teachings of the Catholic Church. Conflicting pressures are likewise observed in the economic provisions, including restrictions on Jewish participation in business and the liberal professions and the limitations on their ownership of real property. Here, the issue is not so much a conflict with external authority as an internal contradiction. While wishing to reduce Jewish influence, the Fascist government also feared the negative economic consequences that might result from such a reduction – consequences that, given the prevailing antisemitic mood, they tended frequently to exaggerate. As a more general matter, the Fascists liked to 36

Ministero dell’Interno, Direzione generale per la demografia e la razza, Il Sottosegretario di Stato [Buffarini Guidi], “To the Duce,” undated document in the Demorazza files, Demorazza b. 1, f. 2. The memo suggests a three-point plan including (1) “legal equalization [parificazione] of those Jews who by marriage with aryans, Christian education of their children, religious conversion and political activity in keeping with the directives of the Regime provide a sufficient guarantee [that they will] conduct, without danger, their activities in the organizations and institutions of the Regime” together with (2) expulsion of all remaining Jews and (3) an absolute ban on Jewish immigration or reentry into the country. According to the memorandum, implementation of this plan “would permit us within six or seven years to hear no more of Jews and Judaism, other than in historical memory.” Buffarini Guidi’s status as Mussolini’s deputy suggests that his ideas reflected official thinking on at least a theoretical level.

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portray themselves as defenders of private property and were reluctant to take steps that smacked of socialist-style confiscation or expropriation measures.37 These issues had also existed in Germany, but they were magnified by Italy’s relative economic weakness and the somewhat more conservative nature of its economic policy. To these philosophical issues may be added a further, practical problem. Since money moves more easily than people, it is generally speaking easier to evade restrictions on financial activity than on, for example, attendance in school or marriage outside one’s racial or ethnic group. Financial restrictions thus tend to require a greater enforcement effort and a more sophisticated administrative structure than other forms of racial legislation. Given the Italian bureaucracy’s relatively limited resources – and, perhaps, the somewhat lower priority that was attached to this area of activity – a number of difficult choices would have to be made. Finally, the business provisions – even more so than the mixed marriage or the “who is a Jew” issues – tended to implicate other portions of the Italian legal system, creating precedents that might be dangerous or destructive in other areas. For example, rules voiding transfers of property by Jews in order to evade the Race Laws might create precedents for voiding other, less problematic transfers, while rules attributing control of a corporation to its Jewish stockholders might lead to application of a similar “look-though” rule in other cases. The provisions likewise created a significant potential for bureaucratic conflict, implicating government agencies responsible for corporations, pensions, and other matters along with the Demorazza itself. The draftsmen thus had to be careful that, in their pursuit of the Jews, they did not undo the overall legal and administrative order. The result of these conflicting pressures was a rather ungainly and incomplete set of rules, which at first glance appear to be weaker and more susceptible to evasion than the personal status provisions. This weakness was arguably enhanced by the less rigorous or at least slower style of law enforcement in Italy as compared to northern Europe, together with the superior economic resources – and hence greater evasive capacity – available to wealthier as opposed to poorer Jews. Notwithstanding these limitations, the business provisions were to prove successful at impoverishing a very substantial portion of the Italian Jewish community, if somewhat less so at breaking up the large concentrations of wealth that were supposedly their object. To the extent that the provisions failed to achieve their objectives, it was almost invariably the result of bureaucratic clashes and conflicting policy goals rather than any particular sympathy on the part of the Italian authorities toward the beleaguered Jews.

37

For an excellent treatment of the business provisions generally, see Ilaria Pavan, Tra indifferenze e oblio: le conseguenze economiche delle leggi razziali in Italia (Milan: Le Monnier, 2004).

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The Drafting of the Business Provisions: General Themes In discussing the business provisions, it is useful to divide them into two categories: those that prohibited Jews from the exercise of specified businesses and professions and those that restricted their ownership of property (notably real property) to specified numerical limits. The business/profession portion was further split between Articles 10 and 13 of the law. Article 10 barred Jews from serving in the military (art. 10(a)), as guardians or administrators (tutore o curatore) of non-Jewish children (art. 10(b)), and as owners or managers (proprietari o gestori) or in other management roles in any business that was either found to be interested in the national defense or else employed 100 or more persons (art. 10(c)). Article 13 barred Jews from employment in a variety of public or quasi-public (parastatali) entities or in businesses that were primarily dependent on such entities in order to achieve their business goals.38 The real property rules were contained in Articles 10(d) and (e) of the law. These prohibited Jews from owing land (terreni) with an aggregate assessed value (estimo) in excess of 5,000 lire and urban real estate (fabbricati urbani) having a taxable value (imponibile) in excess of 20,000 lire.39 The real estate and some (but not all of) the business rules did not apply to Jews having discriminato status, while the remaining provisions of the Race Laws (prohibition of mixed marriages, expulsion from Italian schools, etc.) applied regardless of such status.40 The drafting of these provisions presented many difficulties, which for sake of convenience may be divided into three categories. The first was a question of scope: How far were the new laws to extend, and what would happen when (like the mixed marriage rules) they conflicted with other, preexisting concepts of Italian law? For example, precisely what businesses would Jews be excluded from, and what would happen in cases, including Jews who provided services as independent contractors rather than employees or those who owned businesses but entrusted their management to non-Jews, which were outside the literal language of the law but were arguably contrary to its spirit? To some extent these were administrative rather than legislative issues, but many of them were foreseeable at the outset, and hence became the subject of debate and discussion from relatively early in the drafting process. The second set of issues concerned the evasion problem, especially for property restrictions. Since the Race Laws were preceded by a series of antisemitic 38

39 40

The Italian economy in the Fascist era – and for several decades thereafter – included and was arguably dominated by a number of quasi-public entities, especially in the industrial, energy, and other strategic sectors. The official exchange rate in this period was approximately 20 lire to the dollar although the actual economic rate appears to have been higher. RDL n. 1728, Art. 14.

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declarations, newspaper articles, and so forth, many Jews had begun taking steps to avoid them even before the legislation was introduced. These steps involved a variety of creative strategies, including the division of property between different family members, transfers to charitable organizations and/or non-Jewish individuals, and use of societa` anonime (corporations) in order to avoid or evade individual property limitations. The issue was important, because in the absence of anti-evasion measures – or with their delay until later in the administrative process – all or most of the property restrictions might be rendered ineffective. Finally, the draftsmen had to consider the indirect or collateral consequences of the Race Laws, and their effect on other legal arrangements. Of particular importance was the treatment of the Jews, many of whom would be dismissed from employment, for purposes of pensions and severance payments under Italian law. Together with these substantive issues, there were an inevitable number of procedural problems, such as who would have the principal authority to implement the restrictions on real property, what valuation formula would be used, and what would happen in situations (e.g., Jewish-owned property that was subject to a mortgage held by non-Jews) that affected the rights of Aryan as well as Jewish investors. As in the “who is a Jew” area, the question of who decides was often closely related to the question of how they decided, and had important implications for the overall structure of power in the Fascist state. It may be useful to add a word about legislative process. The general approach of the draftsmen, which appears to be rather typical of Italian legislation in this period, was to remain silent about many “borderline” issues in the initial legislation, but to address them aggressively in a series of regulations (norme), circulars, and other documents which followed closely upon the original enactment.41 The line between “legislation” and “regulation” as Americans use these terms is thus frequently unclear. My general approach has been to include items in this chapter when they were issued early in the process and involved the anticipation of problems rather than a response to specific fact situations, and leave later administrative or judicial interpretations to Chapter Three or Four as appropriate. The overall pattern – a leaky and imperfect structure but with a clear exclusionary purpose, and a tendency to resolve nearly all important questions in favor of toughness rather than leniency – is in any case consistent throughout. 41

This tendency was exacerbated by the laws’ initial passage as a decree law (decreto legge), which was not subject to the full procedural requirements of an ordinary law. Decree laws were common in the Fascist era but – in part because of their perceived abuse – became somewhat less popular in the postwar era. See Mauro Cappelletti, John Henry Merryman, and Joseph M. Perillo, The Italian Legal System: An Introduction (Palo Alto: Stanford University Press, 1967), 70, 74.

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Legislative Intent and the Trend Toward Expansion: The Rules on Jewish Professionals As indicated above, the November 1938 legislation barred Jews from employment in a variety of public or quasi-public entities or in businesses dependent on such entities to achieve their business goals.42 Jews were likewise prohibited from serving as owners or managers in any business that was interested in the national defense or that employed 100 or more persons.43 Although suggesting an intention to exclude Jews from major economic enterprises, these rules were sketchy in nature and did not list the specific types of business in question or the issue of liberal professions (doctors, lawyers, and so forth) which were practiced by many Italian Jews. In July 1939, additional legislation was enacted, which included a detailed list of prohibited professions together with rules for its application. These new rules restricted Jewish employment in no fewer than seventeen different activities, ranging from doctors, lawyers, and journalists to agronomists and industrial or agricultural experts (perito agrario and perito industriale).44 Jews who had acquired discriminato status were permitted to continue their professional practices but were to be listed in auxiliary rosters (elenchi aggiunti) that clearly identified them as Jews, and were prohibited any form of professional association with non-Jewish partners. Those who lacked such status were to be listed in separate rosters (elenchi speciali) and their practice was limited exclusively to Jewish clients. To prevent any delay in application of the new policy, non-Jewish clients were permitted to terminate their relationship with Jewish professionals even before their cancellation from the regular professional rosters.45 The 1939 legislation was itself somewhat general in nature and left additional interpretive questions, including the treatment of professions not specifically mentioned and of arrangements whereby Jews – although not formally controlling (say) a pharmacy or a doctor’s office – might continue to provide these or similar services in a more indirect or unofficial manner. Further issues arose regarding the interaction of the professional and real estate rules, notably in the case of pharmacists, who frequently owned the pharmacy as well as providing professional services. A number of these issues are addressed in succeeding chapters.46 Notwithstanding these limits, the 1939 legislation was significant for two reasons. First, the new rules established a clear pattern – already expressed in other areas – of expanding rather than contracting the scope of the 1938 42 43 44 45 46

RDL n. 1728, Art. 13. Ibid., Art. 10. Legge 29 giugno 1939-XVII, n. 1054, Disciplina dell’esercizio delle professioni da parte dei cittadini di razza ebraica, Art. I. Ibid., Art. 25. See Chapter Three.

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legislation. It is especially notable that the rules extended the Race Laws to professions (agronomist, architect, commercialista) having only the most distant relationship to national security or the physical mixing of races. Second, the rules suggested a legislative purpose of excluding Jews from any position of importance, however small, in the national economy. Where it contained gaps or omissions, the law thus encouraged courts and administrators to extend its prohibitions to new and unanticipated activities should the need arise. Finally, the new legislation suggested the limitations of the discriminazione rules. On a superficial level, discriminati Jews were treated better than their compatriots, permitted to continue their practice with respect to both Jewish and non-Jewish clients. But even this practice was subject to numerous regulations, the Jews both being listed separately and denied any form of professional cooperation with their Aryan colleagues. The entire exception was in any event transitional in nature, being limited to an ageing group of “meritorious” individuals and their immediate families.47 The professional rules were thus consistent with the general nature of the business provisions: incomplete and at times contradictory, but with a reasonably clear underlying policy, and a pattern of progressively constricting the areas of activity available to Italian Jews. Discrimination, Persecution, and the Problem of Collateral Legal Provisions: The Matter of Pension and Indemnity Payments The sudden dismissal of a large number of individuals from employment immediately raises the question of future sources of support for themselves and their families. In Italy, this problem expressed itself most immediately in the issue of pension and severance payments. At first glance, this might appear a strange issue, since a country which enacted such draconian antisemitic measures would not ordinarily be expected to worry much about forfeiture of pension rights. But the question was to prove a difficult one for two reasons. First, Italian labor legislation, which in some cases predated the Fascist era, had made a point of requiring old age and disability payments. The pension issue thus presented a potential clash between the race and labor laws and the bureaucracies that applied them. Second, at least some officials appear to have taken seriously the idea that the Race Laws – unlike the German anti-Jewish program – were discriminatory but not persecutory in nature, having the goal of reducing Jewish political influence but not causing individual suffering on an economic level. Denying pension rights to the dismissed employees was arguably inconsistent with this concept. To resolve this issue, the Race Laws included two brief, closely related provisions. First, the law provided that permanent public employees (dipendenti 47

See text accompanying notes 80–4.

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dello Stato in pianta stabile), who were dismissed from employment pursuant to Article 13, would be permitted to claim the full rights to pensions and indemnity payments (trattamento di quiescenza) otherwise provided by law. Public employees who had not otherwise completed adequate years of service – an idea which appears to be equivalent to our concept of “vesting” – would receive the minimum pension provided by law provided that they had been employed for ten years. In other cases, they would receive a proportional indemnity which was equal to one-twelfth of their final salary for each year of service completed.48 These same provisions were also extended to dismissed employees of the PNF (Fascist Party), regional and parastatali organizations, and other entities covered by Article 13.49 A similar provision was included with respect to Jewish notaries in the June 1939 legislation, although the formula for those serving less than ten years was computed in a different manner.50 A related question arose with respect to employers that were not covered by the rules above. Section 22 of the law provided, somewhat elliptically, that these employers “will pay [to the dismissed employees] the payments (allowances) or the indemnities (gli assegni o le indennit`a) envisioned by their own regulations or by the rules which regulate the employment relationship in cases of dismissal or discharge for reasons unrelated to the employee’s will.” The June 1939 legislation was even vaguer, leaving the question of social insurance (previdenza) payments for dismissed Jewish professionals to be addressed by subsequent legislation.51 The pension provisions suggest that – while the Race Laws were rarely motivated by sympathy or solicitude for the Jewish victims – they were often subject to conflicting legal and political pressures. Thus, the seemingly generous or at least nonpunitive nature of the pension rules reflects the clash between policies and jurisdictions inherent in the issue, together with a practical worry that Jews might become an economic burden, rather than any particular humanitarian concern. This is consistent with the broader pattern under which the Race Laws – although typically becoming harsher with the passage of time – sometimes yielded precedence to bureaucratic interests or conflicting principles of law. The payment of pensions and indemnities, while denying the Jews further employment, likewise reflected the distinction between transitional leniency and long-term harshness that was a persistent feature of the racial policy: A similar approach was reflected in the marriage cutoff date and the discriminazione rules. 48 49 50 51

RDL n. 1728, Art. 21. Ibid., Art. 22. Ibid., Art. 29. Ibid., Art. 31. The treatment of dismissed journalists was based on special arrangements applying to this profession, again based on the assumption that the Jews had been dismissed contrary to their will (Article 30). The resolution of these and other issues is discussed further in Chapters Three and Four.

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Whatever the reason, the vagueness of the pension provisions left many issues unsettled, including the treatment of Jewish professionals; voluntary dismissals (i.e., dismissal of Jews by private employers which was not required, but was indirectly encouraged, by the Race Laws); pensions accruing to foreign Jews; and various computational issues. This “creative ambiguity” – leaving an issue essentially unresolved while the underlying mechanism of the law continues to move forward – was likewise characteristic of the Race Laws. Because the law was so nebulous, courts and administrators retained the freedom to resolve these issues in a number of different ways, and they were to prove an important test of attitudes toward the Race Laws in the months and years to come.52 Indifference and Bureaucratic Turf: The Norme Di Attuazione Like the employment limitations, the 1938 legislation stated the restrictions on Jewish ownership of businesses and real property in only the most general terms, requiring the interested agencies to begin work almost immediately on implementing regulations. Many of these concerned procedural issues: valuation, timing, the mechanism of real estate confiscation and payment, and the powers and composition of the bodies that enforced these rules. But there were also substantive questions, especially involving corporations and similar entities which – in Italy as in other western countries – have a legal identity independent of their individual owners. In particular, questions arose regarding the treatment of Jews who acted as passive owners of stock in Italian corporations, and about various arrangements, including life interests or property subject to mortgage or other debts, in which the economic interest in property was shared between Jewish and non-Jewish parties. Most of these questions were resolved by the so-called Norme di Attuazione (Rules of Application), a further decree law that was promulgated on February 9, 1939. Once again the Demorazza files, together with those of the Ente di Gestione e Liquidazione Immobiliare (Real Estate Management and Liquidation Agency [EGELI]) and the Finance Ministry (Ministero delle Finanze), permit us to reconstruct the drafting procedure in some detail. The files reveal a process that – while manifesting relatively little gratuitous cruelty or overt antisemitism – is preoccupied with technical and “turf” issues and almost wholly indifferent to the human impact of the (still partial) expropriation policy. In true bureaucratic fashion, the agencies are primarily focused on jurisdictional and administrative problems, including who will have primary responsibility to gather information about Jewish property;53 where the funds resulting from 52 53

See Chapters Three and Four. See, e.g., Ente di Gestione e Liquidazione Immobiliare (EGELI), Note to his Excellency the Minister of Finance, n. 00683, Dec. 18, 1939, Archivio Centrale dello Stato, Ministero delle Finanze, Servizio Beni Ebraici (hereinafter “MDF/SBE”) b. 18, f. 10 (stating that the EGELI had reached an agreement in principle with the Land Credit Institutes [Istituti di Credito Fondiario] regarding the creation of a system to ascertain the juridical status and proceed to

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sale of the confiscated property will be deposited;54 and the relative status and importance of the various bodies that will administer the laws on a dayto-day basis.55 A number of letters volunteer the services of one or another public or private agencies to manage confiscated property or to administer a portion of the new requirements.56 Only occasionally, if at all, is there a reference to the fairness of the underlying process or its consequences for the Jewish victims. Yet bureaucratic haggling did, in some cases, result in significant delays in application of the rules, and in at least one specific case (that of stock ownership) prevented the adoption of a truly effective rule, altogether.57 Three issues capture the spirit of the drafting process: the matter of mortgages and other loans, the division of real estate into permitted and excessive portions, and the stock ownership question. These are considered in turn. Mortgages and other loans – A recurring issue under the Race Laws concerned the treatment of Jewish real property that was subject to mortgages, liens, and similar interests held by Aryan creditors. This issue was significant, because it affected the interests of non-Jews as well as Jews: a confiscation of mortgaged property without regard to a non-Jewish creditor’s interests could conceivably cause more damage to the creditor than the property owner. Yet

54

55

56

57

the management and sale of confiscated Jewish property). The EGELI was the entity charged with management of confiscated real estate under the Race Laws. See, e.g., Letter from Governor of the Bank of Italy and Chief of the Ispettorato per la difesa del risparmio e per l’esercizio del credito to the Minister of Finance: Ente di gestione e di liquidazione immobiliare, N. 5703, MDF/SBE b. 18, f. 12, pos. N.28/G.1 (suggesting the use of various credit institutes including the Cassa di Risparmio di Trieste to represent the EGELI in specific geographic areas). See, e.g., Letter from the Minister of Finance to the Ministry of Internal Affairs: Conversione in Legge del R. decreto-legge 9 febbraio 1939, n. 126, Apr. 16, 1939, MDF/SBE b. 18, f. 12, Pos. N.28/G.1 (objecting, inter alia, to a proposed statutory provision that would provide for the equalization (equiparazione) of the EGELI to regular state agencies in the collection of taxes). See note 54; Letter from Minister of Finance to Confederazione Fascista Lavoratori dell’Agricoltura: Gestione e vendit`a della propriet`a ebraica immobiliare, Prot. No. 6112, Apr. 14, 1939, MDF/SBE b. 19, f. 19 (rejecting as premature a proposal by the agricultural workers’ confederation to provide for colonization and management of confiscated Jewish real property). The phenomenon of the exploitation (sfruttare) of the Race Laws for private gain is discussed further in Chapter Five. See text accompanying notes 66–70. Once again, similar conflicts existed in Germany, with the Nazi government reluctant – at least at the outset – to punish Jews in ways that might cause serious damage to the German economy. Thus, despite boycotts, Aryanization campaigns, and sporadic violence, some businesses continued to be owned or controlled by Jews as late as 1938 despite the generally deteriorating situation of the Jews during this period. However, the balance of these different considerations was much more heavily weighted in Germany against the Jews, and after Kristallnacht (November 1938) an order was issued banning all Jewish business activity in the Reich. See Friedlander, vol. I, note 10, at 69–71 (initial reluctance), 232–9 (ongoing Aryanization campaign), and 257–61 (final liquidation of Jewish economic activity).

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protecting these interests, depending upon the method chosen, might establish disturbing precedents for the greater body of Italian law. The Norme di Attuazione tried to reconcile these divergent interests but placed a clear emphasis on the creditors’ rights. To reduce the possibility of evasion, the rules first prohibited Jewish owners from taking out new mortgages or similar debts (ipoteche) after the effective date of the new provisions and before the allocation of their property has been completed by the EGELI.58 Mortgages existing before that date were to remain in effect, but were wherever possible to be included in the portion of property that was transferred to the EGELI (the so-called quota eccedente) rather than the portion (the quota consentita) remaining in the Jewish debtor’s hands.59 The EGELI was then to assume responsibility for payment of such debts together with the amount of compensation owed to the former Jewish owner, with the difference that amounts owed to creditors were to be paid in cash rather than the long-term, low-interest obligations used to pay the Jews.60 The rules thus attempted simultaneously to prevent evasion of the law while assuring that existing mortgage debts were paid off together with, or well prior to, the amounts owed to the expropriated Jews. This is consistent with the overall pattern of the business provisions, in which rules were frequently drafted so as to reduce conflicts with non-Jewish parties or with more general principles of Italian law, but rarely if ever out of concern for the individual Jews themselves. The legislative history of this provision provides an interesting insight into the mindset of the Race Laws draftsmen. In several exchanges between the EGELI, the Finance Ministry, and other relevant agencies, the principal comments are either technical in nature (avoidance of repetition, contradictions between articles, etc.) or involve suggestions to protect additional kinds of creditors not mentioned in the original draft. For example, various correspondences address the problem of unsecured creditors (creditori chirografari),61 redevelopment loans,62 and the danger that the EGELI may acquire property

58

59

60 61

62

Regio Decreto Legge, 9 febbraio 1939-XVII, n. 126: Norme di attuazione ed integrazione delle disposizioni di cui all’art. 10 del R. decreto-legge 17 novembre 1938 XVII, n. 1728, relative ai limiti di propriet`a immobiliare e di attivit`a industriale e commerciale per i cittadini italiani di razza ebraica, Art. 5. Ibid., Art. 19. With respect to property that remained in the Jewish owner’s hands (the quota consentita), creditors could proceed under the usual legal provisions, but were required to obtain documentation as to the Jewish or Aryan character of the debtor concerned (Art. 9). Ibid., Art. 38. Discriminati Jews were exempt from the real estate limitations. See, e.g., Ministero delle Finanze, Director General of the Treasury, Report to the Minister of Finance: Schema di R. decreto-legge riflettante la propriet`a immobiliare degli ebrei, Feb. 6, 1939, MDF/SBE b. 18, f. 3, at 2 (suggesting proposed legislation would cause unwarranted distinctions in the treatment of different unsecured creditors). See Ministero delle Finanze, Direzione generale delle imposte dirette, Memo to Capo di Gabinetto di S.E. il Ministro: Provevedimenti per la difesa della razza, Prot. No. 112, Jan. 4, 1939,

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with debts exceeding its value63 – all issues of concern to creditors (or the EGELI) rather than to the Jewish owners. Still further comments suggest that the existing rules be extended to prevent the leasing as well as debt encumbrance of property subject to the law. The general tone is thus of a slow but steady strengthening of the provisions and of their coordination with other laws, in particular a concern that the laws cause minimal distortion to existing business law and practice. The attitude toward the victims appears neither hostile nor solicitous, but essentially indifferent. Allocation of real estate – One limited example of concern for the victims is observed in the rules regarding allocation of real estate between the quota eccedente and the quota consentita, that is, the portion of real estate to be confiscated and that which could be retained by the Jewish owner.64 Under Article 19 of the norme, the local revenue office (ufficio tecnico erariale) was to divide the owner’s real estate between the two categories “taking account, as far as possible, of the preferences manifested by the interested parties in their [original] declaration or in a subsequent statement declaration presented in the allotted time.” A 10 percent leeway, up or down, was to be permitted in the computation of the two “when necessary to avoid a harmful division (un dannoso frazionamento)” of the real property in question. Where a parcel of real estate was either incapable of division or could not be divided without causing serious economic damage (senza grave pregiudizio economico), the entire property was to be destined for confiscation. The allocation of parcels between the quota eccedente and the quota consentita was also among the issues that could be appealed to the provincial commissions established under the laws.65 The 10 percent rule, and the ability to indicate a preference for retained property, suggest a degree of administrative flexibility and at least a superficial concern for the interests of the Jewish owners, but in a limited number of situations and (as the final part indicates) only insofar as it did not conflict with the interests of other, non-Jewish parties. The provision was moreover vague and in some respects confusing: its interpretation was to prove a continuing challenge throughout the Race Laws period. The problem of passive stock ownership – On the business as opposed to the property side, the most immediate issue was the nature of Jewish interests affected. The 1938 law referred somewhat ambiguously to the termination of Jewish interests as proprietari o gestori (owners or managers) of the indicated

63

64

65

MDF/SBE b. 18, f. 1, at 2 (stressing need to protect entities who have extended mutui di bonifica (i.e., redevelopment or improvement loans). See, e.g., Osservazioni su Alcuni Punti Fundamentali, 8th observation, p. 4 (“passivit`a eccedenti il valore degli immobili”), undated memorandum in Finance Ministry files, MDF/SBE b. 18, f. 1. This section refers to divisions of property made as part of the expropriation process. The following section discusses divisions of property by means of voluntary transfers by the Jewish owner. Ibid., Art. 24.

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companies, adding further that Jews could not assume the direzione (direction or management) of such companies or assume the office of either amministratore (director) or sindaco (auditor).66 The law did not clarify whether indirect control, as by ownership of stock in a corporation without holding a nominal management role, would be affected.67 The question of stock ownership was both significant and difficult. Prohibition of Jewish stock ownership would plainly make the law more effective: it seemed odd to revoke licenses for Jewish peddlers but permit them to continue to own stock in major industrial enterprises. But it involved large, perhaps insuperable enforcement problems. These included both procedural challenges (there was at the time no general public record of stock ownership in the country) and substantive issues (forcing Jews to sell their shares might cause serious short-term harm to the stock market and alienate the regime’s many supporters in the Italian business community). The problem was especially significant since Jews might be tempted to incorporate existing businesses for the express purpose of evading the Race Laws, or withdraw from management positions in existing corporations while retaining a dominant ownership position. Indeed, the transfer of real estate to new (or old) corporations might provide a means for evading the real estate as well as the business management rules. Notwithstanding the significance of the problem, the draftsmen ultimately backed down, one of the relatively few times that competing considerations were permitted to overcome, at least temporarily, the imperatives of the antiJewish policy. Thus, while the Norme extended the prohibitions to include Jews who owned a sole proprietorship (azienda individuale) or served as members with unlimited responsibility (soci a responsibilita` illimitata) in a nonstock company (societa` non azionarie) – roughly the equivalent of an American general partner – no such extension was made to the owners of corporate stock. The law thus adopted the rather odd position of excluding Jews from relatively minor professions while permitting them, at least in theory, to own a large or even a majority interest in the country’s biggest companies. How this happened is an interesting story, both for its own significance and for the light it casts on the conflicts created by the Race Laws and how they were 66

67

RDL n. 1728, Art. 10(c). The affected companies included those involved in national defense or employing one hundred or more persons. Article 13 prohibited any employment in public or quasi-public entities and did not distinguish between management or other roles. In a modern business corporation, control is generally exercised by the Board of Directors and by professional managers chosen by the board for that purpose. Shareholders exert indirect influence, by electing the directors and (depending upon the jurisdiction in question) retaining the right to approve or disapprove certain major decisions. While small shareholders’ role is limited, large shareholders may retain considerable influence, particularly if the directors are personal acquaintances who in practice fulfill the owners’ wishes. This is especially true in small companies or those with concentrated stock ownership, as is especially common in the Italian economy. See generally William A. Klein and John C. Coffee, Jr., Business Organization and Finance: Legal and Economic Principles, 10th ed. (New York: Foundation Press, 2007).

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resolved. Administrative and technical problems were plainly an important factor: there was simply no easy way to trace the Jewish or Aryan ownership of stock in public corporations without major changes in the operation of the Italian financial markets. This point was explained in a June 1939 letter to the Demorazza from the Ministry of Corporations, responding to a proposal that corporations not be considered Aryan firms if all or part of their stock were held by Jews: In this regard this agency would point out that, while for individual firms or else for nonstock companies it is possible to check if the capital is or is not in Aryan hands, the same cannot be said for the capital holdings stock of stock corporations, because the latter, divided as it is into individual stocks, circulates freely and can therefore pass in any moment from own owner to another.

The letter continues to explain that, for these same reasons, stock corporations had been excluded from the original legislation, an exclusion that had been confirmed by the Ministry of Finance in response to a written inquiry.68 Although the administrative problems were daunting, to an outside observer they do not appear overwhelming. For example, the tracing problem could have been dealt with by a requirement that the Jews themselves declare their stock holdings, backed by substantial penalties for failure to do so and (perhaps) accompanied by the full or partial confiscation of Jewish shares, a solution suggested by the governor of the Bank of Italy in a December 1938 letter.69 The availability of such solutions suggests the possibility of other, less technical reasons. For example, it is possible that the draftsmen feared the negative effects on the stock market of a sudden forced sale of Jewish holdings, or even the transfer of Jewish assets to other countries, although this was difficult under the then prevailing laws. Bureaucratic interests also weighed heavily: the finance and corporations ministries may have feared that stock ownership would provide a wedge under which the Demorazza asserted control over a large part of the economy. Given these concerns the “compromise” solution – keeping Jewish capital invested in Italy but without management power – was optimal from the government’s standpoint. 68

69

Letter from Ministero delle Corporazioni, Direzione Generale del Commercio, to Ministero dell’Interno and Ministero delle Finanze: Certificati di attestazione di razza, Prot. No. 158, June 10, 1939, MDF/SBE b. 18, f. 3 Computerized stock holdings would presumably reduce this problem today. Letter from Governor of Bank of Italy to Finance Minister, December 6, 1938, MDF/SBE, b. 18, f. 5. Tracing or attribution (“look-through”) rules are a not uncommon feature of contemporary American law. See, e.g., Internal Revenue Code sec. 951 et seq. (“subpart F rules”) (requiring inclusion of certain income of a controlled foreign corporations (CFC) for U.S. income tax purposes although the income is not distributed to shareholders). Subsequent legislation tightened the restrictions on Jewish owners but never fully addressed the problems indicated above. See generally I. Pavan, Tra indifferenza e odio, pp. 77–84. The debate over stock corporations is discussed further in Chapter Three.

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If other issues suggest a tendency toward continual expansion of the Race Laws, the stock ownership problem provides a case study in their limitations – and absurdity. The result was a law that made it impossible for Jews to attend public schools or sell trinkets on the street, but at least theoretically possible to own substantial chunks of the national economy. Indeed, it is possible that some Italian Jews died, after 1943, while remaining nominally wealthy.70 Transfers of Property and the Evasion Problem Perhaps the greatest test of the Race Laws draftsmen came in their response to the possible transfer of real estate or business interests by Jewish parties and – what was essentially the same issue – the intentional avoidance or evasion of the business-related provisions. As indicated, this problem arose even before the laws were enacted, and was to plague courts and administrators throughout the Race Laws era. The techniques of evasion were as many and various as the rules they were attempting to evade. Among the preferred ones were the transfer of real estate to other family members, with the goal of dividing a property into smaller parcels that were below the legally established limits; transfers of real estate or business interests to sympathetic non-Jewish owners, with some effective interest (or at very least a trusted promise) being retained by the Jewish party; transfers to community or charitable organizations, again frequently with some sort of retained economic interest; and the use of corporations (societa` anonime) as a means to disguise Jewish ownership and hence to evade the intended effect of the business rules. This issue was closely related to the problem of liens and mortgages, since the taking out of a new mortgage or similar debt was itself a strategy for converting real estate interests into cash or notes not susceptible to the new limitations. The draftsmen had to approach this issue carefully, both to protect the interest of the (often non-Jewish) transferees and because such transfers might be unobjectionable – or even desirable – if undertaken under certain specified circumstances. The draftsmen began with a simple concept: transfers of real property and business interests subject to the Race Laws would be prohibited until the valuation and confiscation processes had run their respective courses.71 Almost immediately, however, various exceptions and qualifications appeared. Thus, the Norme di Attuazione provided exceptions allowing the transfer of real 70

71

The Italian Social Republic (Repubblica di Sal`o) enacted a broader nationalization of Jewish property after 1943, although enforcement here too was inconsistent. The effect of the Race Laws on different economic and social classes is discussed further below. R.D.L. 9 febbraio 1939-XVII, n. 126, Art. 5. The law also prohibited the taking out of new mortgages during this period, and stated that new leases of real property would be valid only for the remainder of the year in which property was transferred to EGELI. These rules could be waived in “special circumstances” by the Finance Ministry, in which case the property would count against the quota consentita for the transferor. Parallel rules applied to the transfer of business interests.

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estate to non-Jewish spouses; to children who were not treated as Jewish under the Race Laws; and to organizations having educational or assistance purposes. To be effective, such transfers had to be made within 180 days of the effective date.72 Similar exceptions applied to the transfer of business interests (Art. 55), together with an additional rule allowing for the subsequent sale of all or part of a business to non-Jewish persons or to “regularly constituted” companies (Art. 58), in which case the amount of compensation paid to the Jews was to be invested in registered debt obligations (titoli nominativi di consolidato) reminiscent of the obligations used to pay for confiscated real estate. These latter transfers required approval by the Ministry of Finance and were consistent with the policy of placing Jewish businesses in Aryan hands as quickly as possible: Thus, they were less exceptions than alternate methods for achieving a desired result. When the businesses were not voluntarily transferred under one of the above provisions, the Finance Ministry was to arrange for its own sale or else for the liquidation of the Jewish enterprise, as it deemed appropriate under the circumstances in question.73 Like the mortgage rules, the transfer provisions reflected ongoing tensions between different agencies and substantive policies, tensions which continued to manifest themselves after the initial legislation was drafted. Three issues in particular emerged: the issue of retroactive application; the problem of “good faith” Aryan purchasers, and the intersection of the property transfer with the mixed marriage rules. At certain points, these issues were important enough to require a personal decision by Mussolini – who, it must be said, devoted a surprising amount of time to seemingly small details of law and administration in this area. Thus, in an appunto (note) to the Duce in late 1939, the Ministry of Finance asks the leader’s opinion regarding a retroactive effective date for the rules pertaining to real property transfers, noting that a prospective date would permit anticipatory transfers designed to evade or avoid the law but that a retroactive rule might have negative effects on third parties (that is, Aryans) who acquired property in later transfers.74 Similar concerns are reflected in a note to the Finance Minister, dated February 7, 1939, just before release of the Norme.75 Intra-agency comments address the transfer issue in still greater detail, alluding 72 73

74

75

Ibid., Art. 6. Ibid., Art. 54–67. The rules in the text did not apply to the ownership of shares in stock corporations, or (conversely) to companies owned by Aryans but employing Jewish directors or managers, in which case the laws ceased to be applicable once the Jewish manager was dismissed. Ibid., Art. 58, 67. Companies subject to the law were to be managed by a provisional administrator (commissario di vigilanza) throughout the period between their identification as Jewish businesses and disposition of the entity. See Ministero delle Finanze, Appunto per il Duce: Quesiti relativi All’attuazione del R. decreto legge 17 novembre 1938–XVII, n. 1728 concernente i provvedimenti per la difesa della razza italiana, 3rd quesito, MDF/SBE b. 18, f. 3 (undated document in the Finance Ministry archives). See Ragoniere Generale dello Stato [General State Accountant], Appunto per l’On Gabinetto di S.E. il Ministro: Norme di attuazione R.D.L. 7 novembre 1938, n. 1728, Art. 1, Feb. 7, 1939,

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once again to the problem of “good faith” purchasers and noting potential abuses of the interfamily transfer provisions, together with various inconsistencies with inheritance laws and creditors’ rights.76 Here as elsewhere, the principal themes reflected coordination of conflicting provisions and the rights of “innocent” Aryan third parties: the situation of the affected Jews was a decidedly secondary concern. Similar themes were reflected in comments by other agencies. The retroactivity issue presented both legal and practical challenges. Retroactive legislation was inconsistent with the usual Italian practice and risked creating a dangerous precedent. Yet it seemed inevitable given the attempts by Jewish owners to adjust their affairs so as to negate or reduce the effect of the Race Laws. For example, while the Norme permitted only completed transfers to non-Jewish parties, Jews frequently transferred property with some form of retained income or management interest, or (in the case of real estate) attempted to divide a larger property into several smaller units that would avoid the prospective limitations. That such attempts achieved a critical mass in 1938–9 is suggested by a letter that the Ministry of Justice received from a Judge on the Turin Court of Appeals, stating that Jews in his city – even before formal adoption of the Race Laws – had begun to transfer property and otherwise undertaken steps to blunt the intended effect of its rules. The letter, which came complete with supporting documentation, proceeded to describe various transactions by which Jews were allegedly attempting to evade the laws, ranging from direct transfers of real property to children or other family members to substitution of Aryan for Jewish managers in previously Jewish-controlled corporations. In several of these cases, the letter suggested that the judiciary would be unable to counter these steps on its own, and called for new legislation in order to do so.77 While this letter was unusually combative, it accurately describes the scope

76

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MDF/SBE b. 18, f. 3 (suggesting ineffectiveness of existing limitations on property transfers). The note is directed simply to “The Minister” and located in the Finance Ministry archives. See Osservazioni sul progetto di decreto-legge contenente norme di attuazione ed integrative delle disposizioni di cui all’ art. 10 del R. decreto legge 17 novembre 1938-XVII n. 1728, relative a limitazioni della propriet`a immobiliare e della partecipazione in aziende industriali e commerciali di cittadini appartenenti alla razza ebraica: Osservazioni Generali, pp. 1–8, 12–13, MDF/SBE b. 18, f. 1 (undated and unsigned document containing 32 pages of detailed comments on the transfer and related issues and found in the Finance Ministry archives). True to the bureaucratic nature of the review process, the document also includes 15 pages of technical comments on issues ranging from proper cross-references to avoiding excessive repetition to the appropriate identification and status of the affected agencies. Ibid., 20–32. Letter from G. Ricci, Primo Presidente, Corte d’Appello di Torino, A Sua Eccellenza il Ministro di Grazia e Giustizia [Minister of Justice]: Atti compiuti da ebrei al fine di eludure le restrizioni di carattere patrimoniale delle leggi razziali, Nov. 24, 1939, MDF/SBE b. 18, f. 1 The letter appears to have been widely distributed and copies show up in various locations, as described in Chapter Four. Many of the evasion techniques used by Jews during the Race Laws period bear an uncanny resemblance to contemporary estate planning techniques, providing an interesting

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of the transfers (donazioni) issue which was to plague the Italian courts and bureaucracy throughout the Race Laws period, and the difficulty of separating it from broader legal doctrines. A more detailed account of the letter, and of Italian judicial attitudes toward the Race Laws and their interpretation in general, is included in Chapter Four. Reprise on the Business and Property Provisions Taken as a whole, the business provisions reveal similarities to but also important differences from the mixed marriage and “who is a Jew” rules. As a general rule, the business legislation tended to be more incomplete and tentative in nature, leaving a large number of interpretive issues and (at least where wealthier Jews were concerned) a somewhat wider room for evasion efforts. This difference is apparent with respect to the transfer issue, where only very basic provisions were contained in legislation, leaving judges and bureaucrats to improvise solutions or apply other, pre-existing legal and administrative norms. Most dramatic were the rules regarding stock ownership, where bureaucratic clashes and administrative difficulties left open a rather substantial loophole. The judicial and administrative resolution of these and similar ambiguities will occupy much of the following chapters. Based on the above, it is tempting to suggest that the business provisions (the so-called peripheral rules) were a less important priority than the “core” rules pertaining to physical separation. Yet it must be remembered what the limitations in the business rules were caused by. Most resulted from conflicts of one variety or another – between legal provisions (for example, the mortgage problem), between jurisdictions (for example, the pension issue), or between the theoretical goals of the Race Laws and the reality of Italian economic life (for example, the stock attribution question) – rather than compassion or leniency toward the Jewish victims. Because of the technical complexity of business and commercial laws – and because it is easier to move money than people – these conflicts were somewhat more frequent than in the personal status area. It is also unclear whether the ambiguities were a sign of failure or success in the drafting process. It is not unusual – nor is it always undesirable – for a statutory scheme to leave important questions unanswered. Indeed, such “creative ambiguity” is often a quasi-deliberate legislative strategy. The Race Laws, if confusing in some details, were clear in their underlying purpose: to reduce or eliminate Jewish economic and political influence while minimizing the effect, to the extent possible, on “Aryan” Italians and the overall legal system. Courts, administrators, and individual Italians thus had a reasonably good indication of how to resolve borderline problems, which was more often than not against the Jewish parties. Indeed, the history of the Race Laws was to be one of more severe interpretation with each passing year, with the basis for comparison without neglecting the obvious difference in political and social context, as we will see.

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Demorazza and other entities filling in the statutory gaps to build an ever more complete, comprehensive structure of discrimination and exclusion. In this respect, at least, the Race Laws draftsmen did their job well, and made the assault on the Italian Jews far easier than it would have been in their absence. To appreciate the draftsmen’s contribution, consider what might have happened had they failed to address, for example the issue of mortgages and other types of real property liens at the initial stage. Courts and administrators would then have been required to permit such evasion or to have created new, potentially haphazard doctrines that – together with occupying a very substantial amount of resources – might have impeded the more general operation of debtor and creditor law and caused substantial inconvenience to non-Jewish litigants. A good bit of this was to happen anyway (see Chapter Four), but even a minimally skillful drafting process was able to “contain” the damage and effectively disenfranchise the Jews while the remainder of the legal system proceeded more or less as before. The draftsmen’s role in creating the Race Laws thus cannot be said to have been merely technical in nature, but was vital to the success of the enterprise, in much the same way that a competent legislative counsel is vital to the success of a new tax statute; with the difference that the result was not an equal or proportionate sacrifice but the economic destruction of an entire portion of society.78 One striking aspect of the legislative history is the rather dry and businesslike – one is tempted to say boring – tone of the documents, a tone sufficiently legalistic and methodical that the reader almost forgets that one is dealing with the systematic pauperization of an entire people and the prelude (although it was not known at the time) to their attempted physical annihilation. Although there is relatively little overt antisemitism in the documents, there is likewise little if any empathy for the victims, or any particular effort to ease their economic plight. Indeed the overall flavor of the documents seems more appropriate to a piece of tax or business legislation than a prelude to one of history’s greatest crimes. This tone of studied indifference is a repeated theme in the Race Laws, and we shall have occasion to revisit it in later chapters.79 78

79

On the importance of drafting skill in the legislative process, see F. Reed Dickerson, Fundamentals of Legal Drafting (Chicago: American Bar Foundation, 1986); cf. Cappelletti, Merryman, and Perillo, The Italian Legal System, 198–239 (on the “Italian style” in legislation). To say that the Race Laws were enforced in an indifferent or bureaucratic way arguably constitutes a difference from the German and (to some extent) French experience, in which antisemitic laws appear to have been administered with a high degree of enthusiasm, and ordinary interpretive principles were frequently exceeded in the zeal to expand the anti-Jewish measures. See, e.g., Ingo Muller, Hitler’s Justice: The Courts of the Third Reich (Cambridge, MA: Harvard University Press, 1991), 90–119 (describing efforts by the German courts and bureaucracy to anticipate or expand anti-Jewish measures beyond their literal scope); Richard H. Weisberg, Vichy Law and the Holocaust in France (New York: NYU Press, 1996), 196– 240, 386–429 (describing similar and in some cases even more creative efforts in Vichy France). Part of this difference may be attributable to the failure to create a genuinely independent

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Transitioning to Racism: The Role of the Discriminazione Provisions That the Race Laws constituted a well thought-out rather than a haphazard program of race discrimination – albeit one subject to conflicting policy goals – is perhaps most apparent from its exemption provisions, the so-called discriminazione rules. Here, as in other cases, a seemingly generous provision was in fact quite limited in nature, and in the long run appears to have strengthened rather than weakened the implementation of the new racial program. The basic structure of the discriminazione concept was set forth in Article 14 of the Race Laws.80 Pursuant to this provision, the Interior Ministry was authorized, on a case-by-case basis, to declare specified provisions of the Race Laws inapplicable to individuals in one of seven named categories. These included families of soldiers who had died in one of four Italian wars (the Libyan war, the First World War, and the Ethiopian and Spanish conflicts), as well as individuals who were wounded, volunteered for service, or were decorated in one of the above wars; received a Merit Cross or higher award for service in such conflicts; were wounded “in the Fascist cause” (della causa fascista); were enrolled in the Fascist Party in 1919–22 and the second half of 1924; had participated in the brief war in Istria (Yugoslavia) following the First World War (legioniari fiumiani); or had otherwise demonstrated exceptional merit (abbiano acquisito eccezionali benmerenze), to be determined by a threemember commission composed of representatives of the Interior Ministry, the Fascist Party, and the Italian armed forces. The acquisition of discriminato status was sufficient to remove the beneficiary from the effect of Article 10, that is, the prohibitions regarding military service, provision of care to aryan children, and the business and real estate provisions; Article 11, which deprived Jewish fathers of parental rights over non-Jewish children in certain cases; and Article 13(h), regarding employment by private insurance companies. The remaining rules, including the prohibition against mixed marriages, school attendance, and employment in various public or quasi-public entities (i.e., the remaining provisions of Article 13) remained fully applicable. Where discriminato status was obtained, the same status applied to the individual’s immediate family, although this extension was to be required only for the families of dead soldiers and optional in other cases. There was no appeal process or judicial review. Because the discriminazione rules potentially exempted a large number of Italian Jews from the Race Laws, they are sometimes taken to indicate the

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antisemitic bureaucracy in Italy with the authority to circumvent generally applicable norms and procedures, see Chapter Three. Yet even in the absence of such institutions – and allowing for the arguably weaker history of organized antisemitism in modern Italy – the Race Laws succeeded in achieving most of their intended goals. An exempt individual was said to be discriminato (pl. discriminati), while the concept was referred to as discriminazione. To avoid confusion, I have generally used the singular term unless a group of individuals (e.g., family members) is at issue.

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leniency of the laws and their lack of seriousness as compared to racial laws in other countries. The sense is created of rules which – while tough or even cruel on the books – were in practice relatively easy to avoid. Although this argument is tempting, it is unconvincing on several levels. First, discriminato status, as suggested above, only applied to one portion of the Race Laws, generally speaking the rules relating to business and property ownership and not those pertaining to schools, mixed marriages, and so forth – the “periphery” rather than the “core” of the Race Laws, to use my earlier parlance. An exempt person and his family were thus still effectively treated as non-Italians and physically separated from the remainder of the population, even if they temporarily retained some economic rights. Indeed, even employment in most public or quasi-public entities was forbidden to them, although exceptions were later provided regarding law and other professions.81 Second, by limiting exempt status to the “meritorious” individual and his immediate family, and by making such merit dependent upon activities (military service, membership in the Fascist party, etc.) henceforth closed to Jews, the law ensured that the discriminazione provisions would be a temporary rather than a permanent exception. The Demorazza files are filled with unsuccessful applications for discriminato status based on the activities of older family members rather than those of the applicant himself. When these older relatives died, the exemption would die with them. Third, as Michele Sarfatti has noted, the Demorazza files suggest that discriminato status became more and more difficult to obtain with the passage of time, with a declining percentage of applications being accepted after 1940 and virtually none after February 1942.82 Indeed, one internal report from this era suggests the blanket denial of all pending applications as a way to improve the efficacy of the Race Laws – and, one suspects, conveniently to dispose of unwanted paperwork. Together with the limitation to immediate family members, these actions assured that the exemptions would phase out even faster than originally anticipated. Given the limited and temporary nature of the discriminazione provisions, it seems reasonable to describe them less as a form of leniency than as essentially a transitional rule, under which the Race Laws were applied immediately to the majority of Italian Jews but with a delayed effective date – at least where the business provisions were concerned – for families that were lucky enough to have a “meritorious” or otherwise favored individual within the meaning of the laws.83 As is typically the case of transition rules, the underlying effect 81 82

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See text accompanying note 38. ` persecuzione, pp. 163–4 (citing a M. Sarfatti, Gli ebrei nell’Italia fascists: Vicende, identita, total of 2,486 of 6,494 applications for exemption having been accepted by January 1943 with all but 10 percent of acceptances taking place in 1939 or 1940). Transition rules are a regular feature of tax and other legislation that has large and unanticipated consequences for a significant number of people. See generally Jeffrey H. Birnbaum and Alan

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was to strengthen rather than weaken the laws, by dividing the Jewish community and by avoiding the negative publicity that might have resulted if (for example) a noted war hero had been forced to sell his property the first year following adoption of the laws. A similar “divide and conquer” strategy was used repeatedly during the Holocaust era, including the distinction between foreign and domestic Jews in France and Holland, between “essential” and “nonessential” Jews in East European ghettos, and so forth, often with great if extraordinarily cruel effect.84 Indeed, the Nuremberg Laws themselves contained a number of exceptions, including an exception for certain military veterans, which were similar to the Italian rules, although these were later disregarded. Here as in other instances, the Race Laws – far from a bumbling or incompetent effort – deployed a rather sophisticated and well-tested series of legal strategies, and the skills of the Race Law draftsmen are vital to their success. Nuremberg, Jim Crow, and the Italian African Colonies: A Note on “External” Models for the Race Laws Having completed a brief tour of the Race Laws, it may be useful to revisit the question of external influences upon the draftsmen and the models they used in preparing the statute. Of these the German antisemitic (Nuremberg) laws are the most frequently cited – and indeed the differences between Italian and German approaches are an important theme of this study. But the authors could draw upon numerous other precedents, ranging from the American South to previous antisemitic statutes to Italy’s own African colonies. The Catholic Church, important in many countries but physically based in only one of them, was another important influence. What was the effect of these various models, if any, on the Race Laws and their implementation? Before addressing the question of external influence, it is worth pausing for a moment to consider what it means. A law may influence another law in a number of different ways. On the most basic level, the existence of a law in one jurisdiction may serve as ideological inspiration for the adoption of a parallel law in another. This is what is usually meant by saying, for example, that the Nuremberg Laws served as a model for the Italian or Vichy racial laws, or (for that matter) that the British or American constitution served as a model for other democracies. On a more advanced level, a previous law may serve as a technical guide or model for the resolution of specific problems, or the adoption of specific language, in a later statute. This is related to the first kind of influence, but distinct, implying a closer legal relationship but also

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S. Murray, Showdown at Gucci Gulch: Lawyers, Lobbyists, and the Unlikely Triumph of Tax Reform (New York: Random House, 1987). See Raul Hilberg, The Destruction of the European Jews, 3rd ed. (Teaneck: Holmes & Meier, 2003), 600–32 (Netherlands), 645–703 (France).

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suggesting the possibility of influence across different time periods or subject matters. For example, a tax law may borrow technical concepts (anti-abuse rules, a distinction between civil and criminal fraud, etc.) from a securities statute, although the laws have different purposes and it is unlikely that one law “inspired” the adoption of the other in a political sense. Finally, two laws may have different subject matters and technical approaches but serve as part of a common political program, like the progressive income tax and antitrust laws in the United States, both of which were aimed at breaking up large concentrations of wealth but which otherwise proceeded on more or less separate tracks. These types of influences frequently overlap, but they are conceptually distinct, and express themselves in varying degrees in different cases. The Nuremberg Laws This distinction between different kinds of influence may help to clarify the question of external effects on the Race Laws, beginning with the Nuremberg Laws and other German statutes. There can be no question that the Race Laws draftsmen were familiar with the Nuremberg Laws and that, in several instances, the German law provided the starting point for their thinking.85 There were also various efforts, over the years, to coordinate the two racial programs on a philosophical and technical level.86 Yet from the start, the two schemes varied sharply, reflecting the differences in situations but also in drafting philosophy, with the Italian laws reflecting a somewhat more religious and cultural rather than racial approach to the “Jewish problem” and, at least for a time, appearing to take the distinction between discrimination against and persecution of the Jews somewhat seriously. These differences were most apparent in the mixed marriage provisions, but showed up elsewhere as well. For the moment, it seems most accurate to say that the 85

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See text accompanying notes 7–27 (on the mixed marriage and “who is a Jew” problems). A more systematic comparison of the German and Italian laws (in Italian) is included in Valerio DiPorto, Le leggi della vergogna: norme contro gli ebrei in Italia e in Germania (Florence: Le Monnier, 2000). Among the most noteworthy of these was publication of a journal, Diritto Razzista, which included articles in Italian and German although the translations appear to have been somewhat imperfect. On efforts to coordinate German and Italian racial policy, see Silvia Falconieri, “Consensi e rimozioni: la dottrina giuridica italiana e la legislazione razziale fascista,” in A settant’anni dalle leggi razziali: profili culturali, giuridici, e istituzionali dell’antisemitismo, ed. Daniele Menozzi and Andrea Mariuzzo (Rome: Carocci, 2010), pp. 183, 193–98. The issue of coordination is discussed further in Aaron Gillette, Racial Theories in Fascist Italy (London and New York: Routledge, 2002), although noting that these efforts were not always especially successful: in particular the “Mediterranean” as opposed to “Nordic” racists in Italy tended to be skeptical of excessive German influence and were often successful in reducing or limiting such influence, at least until 1943. See ibid., 145 (“the dislike of Nordic and Germanic racial theories was so intense among many powerful fascist scientists and government bureaucrats that Mediterraneanists, nativists, and other anti-Germanic theorists continued to exert substantial influence”).

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German laws served as an ideological inspiration (albeit competing with other sources) and part of a common political program with the Italian Race Laws, but provided only limited guidance in resolving technical or other issues. The Italian Colonies and Other Antiblack Statutes The question of colonial laws reflects a similar if more attenuated pattern. A bit of background is necessary here. At approximately the same time that it undertook its anti-Jewish campaign, Italy was busily expanding its African empire, to include Ethiopia as well as Somalia, Libya, and other previous territories. This imperial expansion – together with the increasingly apparent phenomenon of racial mixing, which was a political embarrassment for the Fascist regime – occasioned a new body of legislation, the so-called laws for the tutela (protection) of the Italian race in the colonies, which for the most part predated the Race Laws. What was the relationship between these programs, and how if at all did they influence each other’s development? The answer depends, once again, on what type of influence is intended. The ideological link between the two programs was certainly substantial, and on a propaganda level they were effectively combined in La Difesa della Razza and similar publications, which emphasized the dual threat of the Jews (internally) and African and other nonwhite peoples (externally) to Italian and European existence. The pages of such publications were frequently filled with articles that linked these two existential dangers, and racist caricatures of Jews and Africans (mostly Ethiopians) often appeared side-by-side in its pages.87 Indeed, there is a significant body of scholarship suggesting that the Race Laws received an historical impetus from the invasion of Ethiopia, which heightened the nation’s racial consciousness at the same time that it distanced it from the Western democracies.88 Some of the more distinctive features of Italian racism, including sometimes bizarre efforts to distinguish the Italians from other Mediterranean peoples, may also result from this historical circumstance. With respect to legal or technical influence – that is, the actual drafting of the Race Laws – the relationship is more elusive. The colonial laws and the leggi razziali inevitably shared a number of common elements, including 87

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The most famous of these publications, La Difesa della Razza, was published from 1938 to 1943. Its covers in particular have become infamous as physical manifestations of Italian racism, often combining anti-Jewish and anti-African stereotypes designed to suggest the twin dangers facing the Italian people. See generally Franceso Cassata, “La Difesa della Razza”: Politica, ideologia, e immagine del razzismo fascista (Turin: Einaudi, 2008). It has similarly been argued that the Spanish Civil War provided a spur to racism, isolating Italy from the Western powers and (perhaps) heightening the perceived need to distinguish Italians from the Spanish and other Latin peoples. For a collection of articles analyzing Italian racism (including anti-Jewish and anti-African varieties) as a unified subject see Nel nome della razza: Il razzismo nella storia d’Italia 1870–1945, ed. Alberto Burgio (Bologna: Il Mulino, 1999). The theoretical basis of the Race Laws and the interaction between different types of racism are discussed further in Chapter One.

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prohibitions against interracial marriages and extramarital relationships (sometimes ignored in practice) and other provisions designed to preserve the dominant position of white, Christian Italians and prevent mixing of the races which was considered dangerous on both physical and moral grounds.89 There was also a modest but not insignificant correspondence between the Demorazza and the Italian colonial office, regarding philosophical issues and practical problems, such as the status of Jews in the Italian colonies (most notably Libya) or the Falasha Mura (black Jews) in Ethiopia. Notwithstanding this contact, the laws appear to have developed for the most part on separate tracks, a result of bureaucratic divisions and practical differences, the African laws constituting a form of discrimination against the overwhelming majority of the population and the Race Laws against an extremely small, but supposedly influential, homegrown minority. For example, the property issue, which was so important in the Race Laws, appears to have been of secondary importance in the African case, with the bulk of energy being devoted to efforts to prevent miscegenation and to maintain the distinction between European “citizens” and African “subjects” in symbolic and substantive terms. Likewise, the issue of the madamato, or the African mistress of an Italian male who might also maintain a (white) wife and family in Italy, had no precise parallel in the anti-Jewish policy.90 In sum, the colonial laws – like the Nuremberg Laws but in a somewhat more indirect manner – shared certain ideological assumptions with the Race Laws and were presented as part of a common program on both an intellectual and a propaganda level. But the level of technical coordination appears to have been limited, probably even more so than that of the German statutes, resulting from the different nature of the practical problems confronted and the different bureaucracies assigned to draft and administer the relevant statutes.91 89 90 91

Early drafts of the Race Laws bear the word tutela (protection), like the African law, in place of the subsequent difesa (defense) of the Italian race or people. A brief reference to the madamato problem was made in a judicial opinion regarding mixed marriages under the Race Laws, see Chapter Four. The lack of systematic coordination between racial policies is suggested by an exchange in 1939, in which the Demorazza appears to have requested information about racial decisions in Libya, and the AOI and the colonial ministry responded that it was already sending such materials. Memorandum from Ministero dell’Africa Italiana, Direzione Generale degli Affari Politici, Prot. No. 104003: Provvedimenti riguardanti la politica della razza, May 7, 1939, Demorazza b. 11, f. 26. On racial and other policy in Italian East Africa, see generally Angelo Del Boca, Gli italiani in Africa orientale, Vol III: la caduta dell’impero (Rome: Laterza, 1992); Luigi Goglia and Fabio Grossi, Il colonialismo italiano da Adua all’impero (Rome: Laterza, 2006). The similarities and differences between Italian anti-Jewish and anti-African racial policies are considered in Angelo del Boca, “Le leggi razziali nell’impero di Mussolini,” in Il regime fascista: storia e storiagrafia, ed. A. Del Boca, M. Legnani, and M. Rossi (Rome: Laterza, 1995); Luigi Preti, Impero fascista africani ed ebrei (Milan: Mursia, 1968); and various essays in A. Burgio (ed.), Nel nome della razza: Il razzismo nella storia d’Italia 1870–1945. An interesting perspective on the two policies is provided by the problem of Jews living in colonial territories. While the number in Italian East Africa was too small to be of great significance, that in Libya (controlled by Italy from

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Still more indirect was the influence of non-European laws, like the Jim Crow laws in the American South or the emerging but not yet fully developed apartheid system in South Africa. To the extent that these systems affected the Italian laws, it was primarily by means of a two-step process via the Nuremberg Laws and other preexisting antisemitic statutes.92 These systems shared many common goals with the Italian Race Laws and resulted in some provocative parallels, although the difference in political and social contexts makes the comparison problematic on some level. For example, the concept of discrimination without persecution – a seeming contradiction but honestly believed in by at least some participants – has eerie echoes of the “separate but equal” concept in the United States, which was ultimately discredited but held sway for a substantial period.93 The structure of the Race Laws, which included a core of provisions (the prohibition of mixed marriages, separate schools, etc.) aimed at preventing miscegenation and a periphery of rules aimed at economic and other contacts, likewise had much in common with these other laws, although the definitional and other rules were in many cases significantly different.94 Indeed, the overall Italian approach, which involved a program of separation and exclusion but (until 1943) not physical genocide, was in some respects closer to the American or South African that to the fully developed German model. The issue here appears to be less one of direct influence than of two systems confronting similar issues and, on occasion, resolving them in similar ways. We will have occasion to discuss these and other parallels between

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1911 to 1943) was larger (about 20,000) and more economically important. Neither of these precluded an unhappy fate: after some debate a version of the Race Laws was extended to Libya and – following a German-led reconquest of the country in 1942, ensuing deportations, and postwar pogroms in 1945, 1948, and 1967 – by the 1970s the Libyan Jewish community had essentially ceased to exist. See generally Maurice M. Roumani, The Jews of Libya: Coexistence Persecution Resettlement (Eastbourne: Sussex Academic Press, 2009). For a brief but provocative treatment of the parallels between American and German racism, see Bill Ezzell, “Laws of Racial Identification and Racial Purity in Nazi Germany and the United States: Did Jim Crow Write the Laws That Spawned the Holocaust?” in Southern University Law Review 30 (2002). Ezzell, who apparently wrote the piece as a law student, notes tantalizing similarities and differences between the Nuremberg Laws and various state statues but (apparently for reasons of time and money) does not attempt research in the German archives to determine which if any American sources were used. See also Judy Scales-Trent, “Racial Purity Laws in America and Nazi Germany: The Targeting Process,” in Human Rights Quarterly 23 (Baltimore: Johns Hopkins University Press, 2001). See C. Vann Woodward, The Strange Career of Jim Crow, 2nd ed. (New York: Oxford University Press, 1966), 67–191. These and other parallels between the two countries are discussed in Chapter Seven. A particularly fascinating difference is in the definition of the relevant minority, with American law generally adopting the “one drop rule” under which any “Negro” blood subjected one to discrimination and the Nuremberg Laws adopting a one Jewish grandparent standard. The Italian laws, as described above, following a still different (but much closer to the German) standard. It has been noted that, had the American rule applied in Europe, a substantial proportion and perhaps a majority of the population in some countries would have been considered Jewish.

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different racial statutes, together with the broader question of universal rules applying to such statutes, in subsequent chapters. Religious Antisemitism and the Vatican Role The distinction between different types of influence may also be useful in evaluating the role of the Catholic Church, a subject hinted at above but not yet considered systematically. This issue is tricky and difficult, because there was no single Catholic opinion on any issue: In an overwhelmingly Catholic country it is possible to trace a wide range of attitudes to any particular “Catholic” source.95 One must be especially careful to avoid creating an identity between the Vatican, an essentially political institution, and the Church as a whole. This is particularly true in Italy, where people commonly distinguish between the popular Church and the Vatican hierarchy, and where the latter, with its often aristocratic origins, was more conservative and arguably more antisemitic than the Church as a whole. Still a further distinction must be made between the 1938 Race Laws, which the Church – if not necessarily enthusiastic about – by and large acquiesced in, and the post-1943 killings and deportations, which many Church figures (if not necessarily the Vatican hierarchy) actively opposed. In purely technical terms, the Church’s principal intervention was with regard to the mixed marriage/“who is a Jew” question: more specifically, the treatment of Aryan (that is, Catholic) spouses in interreligious marriages and (in some cases) their children. A related issue was the validity of conversions to Catholicism, which from the Church’s perspective were always valid but which were without legal effect if made after the October 1, 1938, cutoff date. These issues involved a clear philosophical difference between the Church and the Fascist government, as well as a direct conflict with the 1929 Lateran Treaties, which generally deferred to the Church in these matters.96 With respect to these issues the Church took an at least formally strong stand, although it did not succeed in changing the underlying rules. These differences, and the lengthy correspondences about them, are frequently cited as evidence of the two sides’ fundamentally different outlooks and the alleged irreconcilability of Catholic attitudes with modern, race-based antisemitism.97 Yet, the technical issues do not tell the entire story. First, it must be remembered that the Church’s intervention concerned only a limited category of mixed marriages and did not affect the laws as applied to the substantial majority of the Jewish community. With respect to conversions, the disagreement 95

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Notably, Guido Fubini, in his book on the legal status of Italian Jews, refers to the Fascist-era legislation as the “return to inequality” rather than a wholly original concept. Guido Fubini, La condizione giuridica dell’ebraismo italiano (Turin: Rosenberg & Sellier, 1998), 51, 63. See text accompanying note 6. The conversion rule applied only to the offspring of mixed marriages. See note 99. Subsequent releases of documents have tended to confirm the Church’s nearexclusive concern on the issue of converted Jews. See Alessandro Visani, “The Jewish enemy: Fascism, the Vatican, and anti-Semitism on the seventieth anniversary of the 1938 race laws,” Journal of Modern Italian Studies 14 (2009), 168–83.

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concerned only those made at the last minute and (in the draftsmen’s view) with the probable intent of evading the racial laws: arguably an effective date issue, if a significant one, rather than an irreconcilable philosophical issue. (Similar cutoff dates existed in other areas of the Race Laws.)98 This does not mean that the issues at stake were insignificant, or that the Church’s views were not strongly held: only that the area of disagreement was relatively narrow in the context of the overall legislation.99 The differences with respect to specific issues must also be seen in the context of the overall structure of the law, which – as we have seen – frequently adopted a religious or at least a cultural definition of Jewishness and, in many cases, enacted rules similar to those which had applied to Jews before the unification of Italy and the loss of the Church’s temporal power during the nineteenth century.100 To invert the previous distinction, it may be said that the Church attempted in many cases to influence the technical application of the Race Laws: but it is less clear that it objected to their underlying philosophical basis, or in any event that it expressed this opposition in a clear and consistent manner. This is not to suggest that there is no difference between traditional Catholic antisemitism and the twentieth-century version, or to deny that many Church figures provided substantial assistance to Italian Jews in the subsequent Holocaust era.101 But it may serve to keep these differences in perspective.102 (See Footnote on Next Page) 98

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See, e.g., text accompanying notes 74–77 (regarding effective dates and potential retroactivity of the business provisions). The author’s personal examination of letters released by the Vatican suggests that a great majority concerned Jewish converts. In taking this position I do not intend to disagree with Susan Zuccotti, who appears to have done the most systematic research in this area, that the Church suffered a significant setback on this issue. S. Zuccotti, Under His Very Windows, pp. 51, 65. Rather I believe – and I think Zuccotti would agree – that this setback must be seen in the context of a widespread Vatican acquiescence in the Race Laws and similar laws in other countries, driven partly by political expedience but also by widespread sympathy on the part of many Church figures for the goals and policies of the initial antisemitic statutes, if not for the subsequent extermination policy. Zuccotti herself states that, with limited exceptions, “Vatican officials wrote as if they took it for granted that their role was to intercede only for converts. . . . They were diplomats before they were moral leaders.” Ibid., 69. On the Vatican and the Race Laws see also Giovanni Miccoli, “Santa sede e ehiesa italiana di fronte alle leggi antiebraiche del 1938,” in Studi Storici 3 (1988), 821–902. On the similarity of German (and Italian) anti-Jewish provisions to rules previously adopted by the medieval church, see Raul Hilberg, The Destruction of the European Jews (Teaneck: Holmes & Meier, 2003), 7–9. See Zuccotti, Under His Very Windows, pp. 300–26. The issue of the Church and the Holocaust, in Italy and elsewhere, is bitterly contested and involves many issues beyond the scope of this book For a sample of the literature, see Saul Friedlander, Pius XII and the Third Reich: A Documentation (New York: Knopf, 1966); Michael Phayer, The Catholic Church and the Holocaust, 1930–1965 (Bloomington: Indiana University Press, 2000); David I. Kertzer, The Popes against the Jews: The Vatican’s Role in the Rise of Modern Anti-Semitism (New York: Knopf, 2001). For the Church’s efforts on behalf of Italian Jews in the post-1943 era – an account that has been challenged by some subsequent authors–see Renzo de Felice, Storia degli ebrei italiani sotto il fascismo, 4th ed. (Turin: Einaudi, 1988), 477–86, 628–32. The Vatican

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Conclusion: On the Race Laws as a Distinct “Italian” Model for Racial Statutes Having observed the drafting process in several areas, and evaluated some of the more important philosophical and technical influences on the Race Laws, it is possible to state some tentative conclusions. Rather than a slapdash project or a clumsy effort to “squeeze” a German product into an Italian container, the Race Laws appear to have constituted a reasonably well-thought-out effort to reconcile these conflicting influences and create a legislative structure that could achieve its goals with minimum damage to the existing legal order. It seems likewise clear that the compromises reflected in the Race Laws – the treatment of mixed marriages, the somewhat ambiguous business provisions, the distinctions between discriminati and non-discriminati Jews – reflect less a weakening of the antisemitic concept than its adaptation to a new and a different society. Taken together, they indicate not a watered down or neutered racial program, but an alternate model, based on the physical differentiation of Jews and Christians and the gradual destruction of Jewish economic and cultural influence, but with a relative minimum of physical violence and (at least until 1943) without the ultimately genocidal impact of the better known German model. In this respect, they arguably had more in common with the restrictions imposed on Jews by the medieval Church and by many European governments until the mid-nineteenth century, and arguably even with the American Jim Crow or South African apartheid statutes, than with the German model in its fully developed form: or perhaps it is more accurate to say that they combined elements of each of these systems without precisely resembling any specific one of them.

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released selected documents pertaining to the war years in the 1960s and 1970s, and has released some additional documents since, but without really resolving the issue. See Actes et documents du Saint-Si`ege relatifs a` la periode de la Seconde Guerre Mondiale, www.vatican ´ .va/archive/actes/index_fr.htm. It is important to note that the tension between racial and religious models existed also in Germany, where the Nuremberg Laws – although in theory based exclusively on racial criteria – determined the Jewish or Aryan status of one’s ancestors at least partially on the basis of church records. See note 23. There is likewise evidence that many individual Germans, at least in the prewar era, accepted or actively supported the Nuremberg legislation but were less enthusiastic about Kristallnacht and other acts of antisemitic violence – an attitude consistent with traditional religious antisemitism and, it may be noted, not entirely different from that of many Italians after 1938. See Friedlander, vol. I, pp. 162–7, 294–8. The difference is in the degree of importance accorded to racial as opposed to religious characteristics and in the ultimate resolution of these tensions, which in Germany resulted in unrestrained anti-Jewish violence and in Italy, at least until the German occupation (September 1943), did not. These distinctions, in turn, relate to underlying differences in the Nazi and Fascist movements, their ideologies, and the organization of the respective parties and states, no less and perhaps more than differences in the level of antisemitic feeling on the part of the various populations. This and related issues are discussed in Chapter Three.

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The religious influence on the Race Laws suggests a particular comparison with France and other countries where religious as opposed to racial concepts played an important role. Yet several features noted by Weisberg in France, including the distrust of Jews as “Talmudic outsiders” and the sense that antisemitic laws must be especially harsh to combat them, seem largely absent in the Italian case, although we will observe the latter concept filtering in during the enforcement stage.103 On the other hand, it is undeniable that the Italian laws, unlike the French, were drafted before any military conquest or occupation and under little if any political pressure to conform to outside concepts. Here again the operative theme is the integrity and (if one may use such a term) authenticity of the Italian model, which was obviously influenced by the antisemitic climate of the late 1930s but developed its own original and effective way of adapting to that climate. It must be remembered that the description above – and throughout this book – concerns the Race Laws as enacted and applied during the years 1938– 43 rather than the full ideological range of Fascist antisemitism or the full range of possibilities that this ideology might have given rise to under different conditions. Indeed, the “intermediate” level of anti-Jewish policy was to prove impossible to maintain after September 1943, when it was overtaken by a more overtly genocidal approach in the northern half of the country and discarded, after an uncomfortable interim period, in the remainder. Whether this harsher policy would eventually have been instituted even in the absence of the German invasion – or whether the Race Laws might have eventually faded into disuse or even irrelevance – is impossible to know, although the post-1943 behavior of Italian police, prefects, and other officials suggest the former is at least as likely as the latter. The point is that none of this could be foreseen in November 1938, and there seems a very reasonable chance that, had they been allowed to run their course, the pre-1943 model of the Race Laws could have remained in effect for a substantial period of time, with dire albeit not deadly consequences for the Italian Jews and their families.104 To recognize the integrity of the Italian model rather than seeing it as a paler reflection of Northern European policies has provocative implications in several areas. These include the relationship between race- and religious-based forms of antisemitism (the Race Laws, which include elements of both, help us to conceptualize the similarities but also the tensions between these models); between antisemitic laws and laws that discriminate against nonwhite peoples (the laws, being discriminatory but not genocidal in nature, remind us of the 103 104

See R. Weisberg, Vichy Law and the Holocaust in France, pp. 386–429. The suggestion that the Race Laws could have survived for an indefinite period – itself a form of historical conjecture – does not deny the existence of factors that, over a long period of time, tend to push an “intermediate” racial statute in the direction of stricter enforcement or eventual collapse. Indeed, the Race Laws themselves arguably provide an example of this process. See Chapter Three.

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essential continuity between these concepts); between Fascism and Nazism; and between Italy and the remainder of Europe. These and related themes are developed further in Chapter Seven. Finally, the Race Laws remind us of the capacity of law and lawyers to create evil as well as good in a society. The tools employed by the Race Laws draftsmen – legislative compromises, transition rules, a dash of creative ambiguity when necessary – are not essentially dissimilar from those that would be used by a draftsperson in writing a tax, environmental, or other contemporary statute. Yet these tactics were both necessary and sufficient for the operation of what most of us would regard as a cruel and even a barbaric statute. By providing a veneer of legitimacy to the antisemitic program, and a ready-made interpretive and enforcement mechanism, the rules made it far more likely that the program would achieve its intended goal. So much has been written about the irrational or criminal basis of the Holocaust that we tend to forget that it began with dry, technically precise statutes that appeared as valid to their draftsmen – and perhaps even, for a time, to their victims – as any legal provision. Law may have contributed, in a belated and rather limited way, to repairing the damage occasioned by these activities. But it helped, just as surely, to create them.105

105

For a powerful argument that the Holocaust must be considered part of law rather than “outside” of law – and that this fact must be recognized if the postwar legal system is to deal with it effectively – see David Fraser, Law After Auschwitz: Towards a Jurisprudence of the Holocaust (Durham: Carolina Academic Press, 2005). The similarities and differences between my approach and that of Prof. Fraser are discussed further in Chapter Seven.

3 Administration: Expansion, Evasion, and the Problem of Institutional Conflict

Given the formal similarities between the Race Laws and antisemitic statutes in other countries – and notwithstanding the distinctions noted in Chapter Two – observers tend to focus on differences in administration and enforcement. Yes, it will be said, the leggi razziali contained many of the same provisions as the Nuremberg Laws or the anti-Jewish laws in Vichy France – but they tended to be enforced less strictly, so that the effect was less harsh than in these other countries. This difference in enforcement is variously ascribed to a supposedly lower degree of Italian antisemitism; to a tradition of lax or inefficient administration of law generally, or to the relatively small and well-integrated nature of the Italian Jewish community. This relatively benign image of the Race Laws is influenced by the later German occupation, when a majority of Italians appear to have been unenthusiastic about the Nazi extermination program, it being reasoned that a population which disliked a foreign antisemitic policy must have been similarly resistant to the domestic variety. This tends to predominate in films and other popular depictions of the Fascist era: Among ordinary Italians it is so common that after a time one begins to recite it by heart.1 The perception above, part of a broader perception sometimes referred to as italiani brava gente or “the good Italian” myth, is a good example of the difference between history and memory. For the clear weight of historical evidence suggests that the Race Laws – and especially the “core” provisions related to schools, employment, and mixed marriages – were enforced with a depressing degree of regularity, and that they seriously and perhaps irreparably damaged the Jewish community even before the 1943 armistice and subsequent German occupation. Indeed, this view has if anything strengthened with the passage of time, so that recent studies tend to be more conclusive about the

1

The postwar treatment of the Race Laws is discussed in Chapter Seven.

75

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enforcement of the laws (and correspondingly more skeptical regarding the “good Italian” theory) than earlier inquiries. But dispensing with popular mythology, or arguing whether Italians were “good” or “bad” toward the Jews, is hardly the end of the matter. Although a simplistic, benign view of the Race Laws is plainly untenable, it is clear that there were substantial differences between the Italian experience and that in other countries, together with important variations – between different regions, different categories of laws, and even different types or classes of Jews – within the country itself. For example, there is reason to believe that the provisions regarding Jewish property and businesses were enforced rather less strictly than those involving schools and employment, and that enforcement in certain areas of the country, particularly Rome, was more consistent and enthusiastic than in other, more peripheral regions. There is likewise evidence that the antisemitic program, if it did not (until 1943) provoke organized resistance, was a somewhat lower institutional priority for the Italian than for the German or the Vichy French governments, with inevitable effects on the intensity of enforcement and the corresponding ability to avoid or evade the laws. Whether these differences resulted from differing attitudes toward Jews, from institutional factors, or from different historic patterns of law and administration remain very much open questions. The point is that the debunking of one myth should not be an excuse for creating another, and that a simple linear analysis should give way to a richer, multidimensional portrait. When historians seek to understand the attitude toward a law, they often focus on extreme or unusual cases, in which the law was fuzzy or unclear and a decision maker (whether judge, bureaucrat, practicing attorney, or private citizen) had to make a decision on its application. For example, if we wanted to know whether a government was serious about combating tax avoidance, we might study cases involving clever tax shelters that were within the letter of the law but contrary to its spirit. If we wanted to gauge the response to race or gender discrimination, we might study cases involving “borderline” issues like affirmative action, discrimination by private clubs, and so forth rather than more simple or obvious fact patterns. The point is to use these admittedly atypical cases in order to describe or comprehend the rules that apply in the (presumably larger) number of ordinary situations. This type of research is especially valuable when one is seeking to measure the attitudes and biases of decision makers, which are most likely to express themselves in indeterminate or “hard” cases. This chapter considers the administration of the Race Laws, relying primarily on the archives of the Demorazza and other agencies, and emphasizing difficult or borderline cases as explained in the preceding paragraph. A particular emphasis is placed on issues arising in the business and property area, including limits on Jewish ownership/management of real property; on participation in designated businesses; and on employment in specified professions. The business area is fascinating both because it involves conflicting policy goals

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(pursuit of the antisemitic policy versus protection of private property and avoiding damage to the economy) and because those who own property are, almost by definition, in a better position to evade or avoid laws than those who do not.2 Enforcement of property restrictions thus tends to require a greater degree of effort, and lead to a larger number of conflicts with other portions of the legal system, than do simple exclusionary rules. The chapter also considers a smaller number of decisions involving the rules involving foreign Jews, which raised a number of interesting issues involving treaty obligations, conflict of laws, and related problems. By examining the resolution of these “contested” areas, we can glean important insights into the overall system, and the priority accorded to the Race Laws in comparison with competing interests and goals. It will be noted that some issues discussed in this chapter (mixed marriages, the pension rules, the treatment of stock corporations) are the same or similar to those in the preceding chapter. Many underlying patterns, including a tendency toward expansion of the laws but also toward bureaucratic and interagency conflict, are also similar. The difference is that – instead of dealing with a limited time period and a relatively small number of draftsmen – we are now dealing with a larger number of actors and a more extended time focus. Thus, rather than observing unitary patterns, we will begin to see differences depending upon the time of the decision, the institutional actor and/or geographic region at stake, and the subject matter of the law. Along with public officials, we will begin to see the importance of ordinary Italians, as protectors and betrayers of individual Jews and (as is always the case in the real world) the first line of enforcement of the legal system in general. The question of popular attitudes will here be examined in a relatively narrow number of areas, most relating to the real estate and business rules, and at a national level. A more detailed study of behavior in two Italian cities (Ferrara and Turin) is included in Chapter Five. It will be observed quickly that the “good Italian” myth fares poorly in our study. Yet cultural differences and bureaucratic inertia – notably the failure to establish a wholly independent and single-minded antisemitic agency on the model of the German SS – did account for a somewhat less complete and consistent pattern of enforcement than obtained in other countries, and placed Italian Jews (at least until 1943) in a somewhat different situation from Jews in those countries. Here, as in the original legislation, the Race Laws were an 2

See Chapter Two. As in Chapter Two, I do not suggest that my approach is wholly novel or that no other scholars have considered the administration of the Race Laws: many, notably Michele Sarfatti at a national level and Fabio Levi, Silva Bon, and Enzo Collotti at a regional level have done so. I do suggest that my perspective and emphasis are somewhat different from theirs, and that – by combining a detailed study of “borderline” cases at the legislative, administrative, and judicial levels – I can reach somewhat different insights. For an interesting study of administrative approaches to the Race Laws, emphasizing the Interior Ministry, see Stefano Caviglia, “Un aspetto sconosciuto della persecuzione: l’antisemitismo “amminstrativo” del Ministero dell’Interno,” in Rassegna Mensile di Israel, 1938: le leggi contro gli ebrei (1988) (Special Ed.) 233–74.

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Italian original: neither decent nor humane but not perfectly evil either, and reflecting many of the same underlying contradictions as the Fascist regime itself. Borderline Issues: Creative Interpretation and the Trend Toward Stricter Enforcement Given the relatively brief character of the 1938 laws, the bureaucracy was required to address numerous issues that were either omitted or incompletely addressed in the legislation or the principal norme – to fill in gaps, as it were, in the legislative and regulatory structure. These included situations, like quasi-public corporations and certain liberal professions, which straddled the line between permitted and prohibited activities, together with others, like Jews who provided services under independent contractor or supply contract arrangements, which were permitted under the literal language of the law but seemed inconsistent with its spirit. In still further cases, the bureaucracy felt compelled to respond to real or anticipated evasion by the Jews or their sympathizers. Many of these same problems had arisen at the legislative stage, but were left unresolved or else resolved in a broad manner that left room for substantial administrative discretion How the bureaucracy responded to these problems provides insight into its mindset and (implicitly) that of the broader Italian population of which they were a part. The ensuing pages will consider a number of these instances, beginning with “borderline” cases and proceeding to issues – notably pensions and stock corporations – that involved a more fully developed clash between different policies and actors. As in Chapter Two, the general approach is to proceed directly to the evidence, postponing an analysis of the relevant institutions and conflicts until the end of the chapter. A recurring theme of the chapter will be the differing perspectives of the various agencies called upon to interpret the racial laws. Not surprisingly, the agency with primary responsibility for the laws, that is, the Race and Demography Office (Demorazza) of the Interior Ministry, will often be observed to adopt a more severe interpretation of the laws while others (notably the Finance Ministry) will sometimes appear more “lenient” in nature. Yet these institutional differences rarely reflected any sympathy or concern for the Jewish victims, and the overall pattern was one of increasing harshness with the passage of time. Professions and Small Businesses: Ambiguous Cases and Interaction with Other Race Laws Provisions As described in Chapter One, the Race Laws banned Italian Jews from ownership or management of enterprises in businesses deemed vital to national defense or which employed one hundred or more persons (Article 10), as well as employment in public or quasi-public entities or in businesses that were

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primarily dependent on such entities in order to achieve their business goals (Article 13). These laws and the ensuing norme similarly barred Jews from the practice of law, medicine, pharmacy, and numerous other professions, except for practices that were limited to an exclusively Jewish clientele. An exception to most of these provisions was to be provided for Jews who had obtained discriminato status, although in such cases the Jews were to be listed in auxiliary rosters and were prohibited from undertaking any form of professional association with non-Jewish colleagues.3 Two interpretive questions quickly arose. The first was the application of the rules to businesses and professions that were not literally covered by the original law, but seemed consistent with its spirit, including small businesses with national security implications and professions having similar functions to those on the original list. The second was a series of issues involving pharmacies, many of which were owned and operated by Jews and which raised a series of issues relating to professions, real estate, discriminato status, and the laws applicable to foreign Jews. Each of these involved important questions of theory and practice, most but not all of which were to be resolved against the Jews with the passage of time. One of the first questions to arise was the precise boundary of the ownership and employment rules, particularly the rules that relied on qualitative concepts like the public nature of an activity or its importance to national security. This problem proved especially difficult, because the economy of Fascist Italy was characterized by a large number of quasi-public bodies nearly all of whose functions could, in some way, be deemed important to national security or the public interest. Indeed, depending upon the interpretation provided, nearly all significant business activity could be denied to Jews under one or another provision of the original law. One recurring issue was whether the exclusion of Jews should be limited to large, national firms or extended to more local entities, on the theory that a particular economic sector – regardless of the size of the enterprise – was inherently public in nature and should accordingly be off-limits. Thus, a memorandum to the Interior Minister in February 1939 asks whether the prohibition on Jewish employees, previously applied to the management of banks of national interest (amministrazioni delle banche di interesse nazionale) should also be extended to employees of smaller credit institutions (aziende di credito) “in recognition of the delicate functions that are carried out by the[se] institutions.”4 The issue was complicated by the fact that the Race Laws – although not directly 3 4

See Chapter Two. Appunto per S.E. Il Sottosegretario di Stato, no. 9623, Feb. 14, 1939 with attached handwritten note, Feb. 15, 1939, Raccolta di Massime, Archivio Centrale dello Stato, Ministero dell’Interno, Direzione Generale Demografia e Razza: Affari Diversi (1938–1945) (hereinafter “Demorazza”) b. 2, f. 11. Buffarini Guidi (“Il Sottosegretario”) served as the effective Interior Minister although Mussolini held the official portfolio.

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addressing these smaller institutions – were phrased in language similar to previous banking laws that had applied to them. The Demorazza ultimately ruled that the new laws should be extended to these entities. A similar result obtained for the scientific and technical directors together with an employee of the vaccines section at the Naples Serotherapic Institute, on the theory that the Institute was an “auxiliary establishment of significant interest to war production” (stabiliment[o] ausiliar[e] . . . di maggior interesse per la produzione bellica) as well as to independent insurance agents, who were treated as employees of the insurance companies although they were legally independent of the companies and paid on a commission basis.5 The insurance case is noteworthy in that the query regarding treatment of independent agents originated with the Fascist League of Credit and Insurance Businesses (Confederazione fascista delle Aziende di Credito e della Assicurazione): one of a large number of cases in which Fascist unions, commercial bodies, and so forth made inquiries that resulted in an expanded application of the Race Laws.6 The professional rules gave rise to similar problems, even after their “clarification” in supplemental 1939 legislation.7 A first question regarded the exclusion of Jews from activities not included in the original list, but which arguably were of equal importance or (what appears no less significant) visibility, particularly in the larger cities. Here, the Demorazza and local authorities showed a marked tendency toward expansion of the law, extending the prohibition to a large number of activities, ranging from tax advisors to rag-pickers, that were either wholly unmentioned or only indirectly suggested in the original racial laws. Thus a Demorazza file, compiled in the spring of 1939 although including some later entries, contains administrative inquiries on the right of Jews to continue working as (inter alia) actors, public appraisers, customs agents, stock commission brokers, travel agents, herbalists (erborista), uniform-makers, and small drug producers. All of these issues were eventually decided against the Jews although none was addressed directly in the original statute. Where the rules were clear, they were typically given the most restrictive application possible, as when discriminati Jews (who were permitted to work as journalists) were denied the right to work as directors or editors of their publications, or when jewelers were denied a forty-day extension to liquidate their businesses. Only the profession of book reshelver (collocatore di libri) was permitted without limits and even then only to discriminati Jews. Many of the decisions appear to 5

6

7

Appunto per S.E. Il Sottosegretario di Stato, no. 461, April 6, 1939, with attached handwritten note, Raccolta di Massime, Demorazza b. 2, f. 11; Appunto per S.E. Il Sottosegretario di Stato, no. 189, April 9, 1939, with attached handwritten note, Raccolta di Massime, Demorazza b. 2., f. 11. Interestingly, the confederazione and the initial Demorazza inquiry were more sympathetic to the agents, suggesting that they were independent in nature, although this logic was (predictably) rejected at a higher level. See ibid. (handwritten notes by on and attached to the initial Demorazza inquiry). See Chapter Two.

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have been made in summary fashion, with the single word “No!” or “Niente!” (“no, “nothing,” or “no way” in Italian) frequently scribbled across the inquiry as a sort of instant justice without any effective method of appeal.8 No profession seemed small enough to escape attention. Further rulings considered the fate of Jewish tax advisors, doorkeepers, tourist pilots, and even street vendors (commercianti ambulanti) and rag-pickers who required commercial licenses to engage in their activities.9 Only the tax advisors escaped, a pyrrhic victory since the exercise of their function required authorization of the Finance Ministry which was unlikely to be granted under the prevailing circumstances. Jews were permitted to serve as doormen only if they had discriminato status or Aryan families and, even then, only for buildings occupied exclusively by Jews. Perhaps because of its unusual visibility, the issue of Jews in the entertainment (spettacolo) industry received disproportionate attention. An initial exclusion of Jews from the acting profession was subsequently extended to (inter alia) authors, librettists, translators, scenographers, directors, and members of the orchestra, chorus, or dance corps (corpo di ballo) and even technical or maintenance personnel. Financial participation by Jews in the entertainment sector was likewise prohibited.10 Because discriminato status entailed an exemption from many business provisions, the two areas of law frequently interacted, most notably with respect to Jewish-owned pharmacies. Indeed, the matter of pharmacies is a sort of microcosm of the Race Laws as a whole, involving issues of ownership, employment, foreign Jews (a number of these appear to have been involved in the business), and transfers or evasions by Jewish business or property owners as well as the discriminazione problem. The story of Rina Bemporad, a pharmacist in a town near Livorno in coastal Tuscany, is a case in point. Trying to stay ahead of matters, Dott.ssa Bemporad 8

9

10

See Esercizio Professionale, Raccolta di Massime, Demorazza b. 2, f. 11 (cite individual documents). A majority of these and other Demorazza rulings were made in handwritten form making it difficult to trace their source and effectiveness, but in the absence of internal appeals they appear to constitute final decisions. See, e.g., Appunto per l’Eccelenza il Sottogretario di Stato, May 17, 1940, Raccolta di Massime, Demorazza b. 2, f. 11 (tax advisors); Appunto per il Sottosegretario di Stato, no. 2076/30 R., April 2, 1941, Raccolta di Massime, Demorazza b. 2, f. 11 (doorkeepers); Memorandum from Air Force Ministry to Demorazza, received Jan. 24, 1939, Box B1, Demorazza b. 7, f. 24 (tourist aircraft). The issue of commercio ambulante is discussed further below. Appunto per S.E. il Sottogretario di Stato, No. 732/24, June 24, 1939, and attached handwritten note, Raccolta di Massime, Demorazza b. 2, f. 11 (actors); Racial Provisions in the Entertaiment Sector, Memorandum from Demorazza to Prefects, Public Security Administration, Prime Minister’s Office, and others addressees, No. 1549/24, June 18, 1940, Miscellaneous Items (Affari Diversi) Demorazza b. 3, f. 13 (other activities); Appunto per L’Eccelenza il Sottogretario di Stato, Demorazza No. 1535/24, July 10, 1940, Raccolta di Massime, Demorazza b. 2, f. 11 (financial participation). More extreme rules, including a ban on performance or reproduction of Jewish creative works, were enacted in 1942.

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first inquired in 1939 if – were she to be denied discriminata status – she might pursue the alternate option of continuing to own the pharmacy while appointing an Aryan as its managing director (direttore responsabile). Both the Health Administration, which noted that such divided arrangements were permitted under the applicable health legislation, and the initial Demorazza review recommended a favorable ruling.11 But the Demorazza changed its mind, concluding (1) that the health legislation had as its purpose the encouragement of nonpharmacist owners and had no relevance to the Race Laws, and (2) that permitting arrangements of this type might eventually result in a Jewish and Aryan pharmacist engaging in professional collaboration or even in the effective subordination of the Aryan to the Jewish professional – precisely the type of relationship that the Race Laws were intended to avoid. Accordingly, the request was rejected.12 Still more complicated were a number of cases involving foreign-born pharmacists. Foreign Jews were, as a general rule, subject to more stringent limitations than their Italian coreligionists, with the ultimate purpose of removing them from the country altogether. In the interim, however, the application of several Race Laws provisions was unclear: and, given that pharmacists generally were in short supply and many were subject to the draft, an argument for retaining the foreign Jews could be made. Despite these conditions, this question appears to have been uniformly answered in the negative. Such was the case for Paolo de Fischer di Bela, a baptized Jew and Croatian citizen working at a pharmacy in Zara, although he had worked for some time at his job, and his application was supported by the relevant local authorities.13 The same result obtained for Francesco Grosz, an interned Hungarian Jew who wanted to work in a pharmacy in Montereale whose Aryan proprietor had been drafted into the armed forces and who had been unable to locate another Aryan pharmacist who could take his place. The Demorazza noted that foreign Jews were permitted to provide professional services only for other Jews and (even then) only if they belonged to a state with which Italy had a reciprocal treaty: As neither obtained in this case, the request was denied.14 11 12

13 14

Appunto per S.E. il Sottosegretario di Stato, Demorazza No. 1135/24, December 2, 1939, Raccolta di Massime, Demorazza b. 2, f. 11. Appunto per S.E. il Sottosegretario di Stato, Feb. 3, 1940, Raccolta di Massime, Demorazza b. 2, f. 11. The ruling also notes that the Ministry of Corporations had shared the opinion of the health administration (Direzione Generale della Sanit`a) but rejects the views of both agencies, thus asserting the Demorazza’s jurisdictional independence as well as a strict interpretation of the laws. Memorandum from Demorazza to Public Security Administration, No. 240/30 R., May 3, 1942, Demorazza b. 7, f. 24(I). Memorandum from Demorazza to the Public Security Administration, No. 2194/30 R., May 14, 1941, Demorazza b. 7, f. 24 (I).

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Combining the problem of foreign Jews with the issue of pharmacy transfers was the case of Ernesto Rosenfeld, a German Jew who owned a pharmacy in Guardamiglio, near Milan, and was required to leave Italy under terms of the Race Laws by June 15, 1939. He sought to sell the pharmacy to an Aryan purchaser but appears to have encountered doubts from the purchaser regarding the legality of the sale under the new laws, which required special approval for the sale of commercial property by Jews. As in the Bemporad case, the health bureaucracy and an initial Demorazza review supported Rosenfeld’s application, noting that pharmacies performed a public rather than private function and were generally regarded as professional rather than commercial properties. The Demorazza’s final answer was slower in coming. In a series of documents written during the first six months of 1939, the agency either deferred consideration of the issue or affirmatively blocked the proposed sale, although there was a willing buyer and although the purpose of the law – to prevent Jews from evading the limitations on ownership of real property by sales to Aryan buyers – was by and large irrelevant to a foreign Jew who was being expelled from the country. While sales of this type were eventually permitted, it is unclear whether this relief came in time to help Rosenfeld, who was required to leave the country several months before the eventual ruling. The indifference toward Rosenfeld’s situation was captured by a memo to the Demorazza from the public health administration, which noted that, should the sale not be approved, “the demand for local pharmaceutical services would not suffer any damage in that the pharmacy itself would have to be put at auction, and could remain open under the direction of an [appointed] manager until the auction was completed.”15 The professions cases suggest two patterns that were to prevail throughout the administrative and much (although not all) of the judicial interpretation of the Race Laws. The first was a tendency to decide close cases against the Jewish parties, a tendency that appears to have accelerated rather than slackened with passage of time. The second was a tendency to expand the laws beyond their original terms, especially when the expansion appeared consistent with existing 15

See Appunto per la Direzione Generale per la Demografia e la Razza, Ministero dell’Interno: Direzione Generale della Sanit`a Pubblica, No. 20546/16781, April 4, 1939, Demorazza, b. 7, f. 24(I). In all the Rosenfeld file contains not fewer than nine different documents by the latest of which, in the late Spring of 1939, the sale had still not been permitted. Memorandum from Demorazza Prefect of Milan concerning Dr. Rosenfeld Ernesto, Pharmacist in Guardamiglio, Demorazza, b. 7, f. 24(I) (undated document but appearing immediately following document dated May 27, 1939, in the Demorazza files). For the ultimate (favorable) resolution of the issue, coming at least five months after Rosenfeld’s scheduled departure date, see Memorandum from Demorazza to Ministero delle Corporarazioni: Direzione Generale delle Associazioni Professionali, “Farmacie di propriet`a di ebrei: Vendit`a [agli] ariani,” No. 1163/24, Demorazza, b. 7, f. 24(I) (also undated but responding to inquiry of November 9, 1939) (pharmacies were not commercial property and hence not subject to the anti-alienation rule).

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rules or was necessary to avoid situations (e.g., Jews working together with, or in superior positions to, Aryan employees) that were arguably inconsistent with the legislative purpose. Mitigating if not exactly balancing these tendencies were a rather slow pace of administration and an incipient pattern of interagency differences, with the Demorazza tending to call for stricter interpretation and other bodies – notably those responsible for economic prosperity or the welfare of particular industries – taking an opposite tack. These patterns are visible at the legislative stage, but they become clearer here, together with a certain variability or randomness of enforcement: For example, the rules regarding retail trades and entertainment (spettacolo) appear to have been expanded somewhat more rapidly than the rules in other areas, resulting perhaps from the increased visibility of these latter professions.16 The professions cases also suggest the increasing overlap of provisions as time went on. This was particularly true of the cases involving Jewish pharmacies, which implicated the real estate, transfer, and discriminazione provisions and frequently the rule regarding foreign Jews. While the clash of different provisions sometimes helped Jews, it more often redounded to their harm, creating a web of negative outcomes that reinforced one another with only a marginal link to the original rules. The growth of just such a “web” is, ironically, a sign of a healthy and thriving statute17 – with the unfortunate result that this particular statute was slowly but surely eliminating the Jews from Italian life. Legislative Intent and the Form and Substance Problem: Domestics, Hotels, and Supply Contracts The professional exclusions represented an incremental expansion of existing rules to cover other, similar situations. In a second category of cases a more 16

17

A Demorazza compendium, undated but containing references to events through the spring of 1941, included a more complete list of activities from which all or else non-discriminati Jews were henceforth to be banned, including most of the activities noted in the text together with additional items including (inter alia) the use of public libraries; the possession of radios; various commercial (notably stock market-related ) and agricultural activities; the possession of fishing and hunting licenses; and the raising of migratory birds. Questioni Ebraiche Varie: Massime, undated compendium of restrictions on Jews under the Race Laws, Raccolta di Massime, Demorazza b. 2, f. 11. The compendium also suggested that a rule was under consideration to ban even discriminati Jews from operating pharmacies with non-Jewish customers, and alluded to conflicts with other agencies over the permissibility of partial donations of property by Jews to non-Jewish relatives or charitable organizations (see Ibid, 10, 12). See Dennis M. Patterson, Law and Truth 158 (1996) (citing Willard van Orman Quine, “Two Dogmas of Empiricism,” in From a Logical Point of View 20, 20–46 (1953), for the proposition that science is a “web of belief” in which the truth of statements depends upon their relationship to previous true statements and suggesting that such an approach might be extended to law as well). In fairness to Patterson (and Quine), no legal theory holds up particularly well in the perverse world of Fascist jurisprudence, and many serve only to make things worse, see Chapter Seven. The behavior of the legal, medical, and other professions under the Race Laws is discussed in Chapters Four and Five.

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creative interpretation was called for. These included situations in which certain activities, while falling outside the original legislation, seemed inconsistent with its underlying policy; and others in which a transaction, although permitted by the rules, was similar in economic terms to prohibited transactions. In contemporary American terms, we would refer to these, respectively, as “legislative intent” and “form and substance” problems. Because these situations required a particularly aggressive assertion of interpretive authority – and because they involved issues of legal theory as well as practical problems – they provide an especially interesting test of the bureaucracy’s attitude toward the racial laws. A good example of the intent problem was the rule against Jews employing Aryan domestic or household servants (domestici). This rule was included in the original 1938 legislation (Article 12), but contained little if any detail, and did not address the types of work or the degree of personal contact required for the prohibition to take effect. But it did address a central purpose of the Race Laws: to avoid situations that placed Aryans (and especially Aryan women) in a dependent or subservient position with respect to Jewish employers, and to minimize social interaction between the races. Given this purpose and the attendant fears, there was a tendency to give the domestici rule an especially broad reading. Thus, with little if any statutory basis, the prohibition was extended to cover such diverse activities as drivers, doormen, cooks, and gardeners, although curiously not less skilled occupations such as farm workers (contadini and braccianti), cowhands, laundresses, or dressmakers. These exclusions appear to be explainable either on the basis of the less intimate connection that they implied or, perhaps, as compromises to avoid the large-scale (Aryan) unemployment that might result from a stricter rule. Mixed families could retain Aryan domestics only under special conditions which were to be evaluated on a case-by-case basis.18 Similar to the domestici issue was a prohibition against Jewish-owned hotels and pensioni (boarding houses), which raised parallel concerns of physical separation and avoiding situations that placed Aryans under the direction or control of individual Jews. This issue was overlooked entirely in the 1938 legislation, but was addressed in 1940 in response to a specific request from Mussolini: The ensuing rules banned Jewish ownership of such facilities together with Jewish attendance at Aryan-owned establishments. An exception permitted discriminati Jews to operate facilities for exclusively Jewish guests, and an additional rule provided for separate Jewish areas at water resorts.19 18

19

See generally Demorazza, Letter to Prefects, “Domestici al servizio di ebrei,” No. 24000/4D/15752, Feb. 4, 1939, Demorazza, b. 2, f. 11 (activities covered and not covered by the domestici rules); Demorazza, Telegram to Prefects, No. 56079, Nov. 30, 1938, Demorazza, b. 2, f. 11 (treatment of racially mixed families). The issue of resorts might seem trivial to foreigners but must be understood in the context of middle class Italian culture, in which a period in montagna or al mare is seen by many as a necessity rather than a luxury. The issue was complicated by the large number of foreign Jews who lacked permanent residences and lived full-time in hotels, boarding houses, or similar

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From the beginning, the rules raised a series of interpretive problems. A first issue involved Aryans with Jewish spouses who continued to operate hotels and resorts. A second concerned establishments nominally owned by Aryans but that continued to have Jewish employees or simultaneously to host Jewish and Aryan guests. The former issue was resolved with the odd rule that Jewish spouses were permitted so long as they did not cohabit with the Aryan manager. Most of the others were eventually decided against the Jewish parties.20 An interesting feature of the hotel problem issue was the incipient conflict between the ministry of tourism, which feared the economic impact of the loss of Jewish hotel guests, and the Demorazza, which was predictably less sympathetic. While this issue was for the most part (as usual) resolved against the Jewish parties, in early 1939 the issue of financial assistance to Jewish hotel operators was still being debated, suggesting the incomplete nature of enforcement and the difficulty of separating the Race Laws from other economic and social policies.21 Similar tensions were to be observed in other substantive areas.

20

21

facilities. The use of the term pensione (boarding house) in this context should be distinguished from the English term for retirement benefits, although the words share common linguistic roots. See Demorazza, Memorandum to Public Security Administration, 2181/30R, May 2, 1941 regarding Margherita Strobenz in Polgar, Demorazza, b. 11, f. 27 (Aryans having Jewish spouses could obtain hotel or boarding house licenses permitted to operate hotels only when marriage has been annulled or dissolved or the couple are not cohabiting); cf. Demorazza, Promemoria per il R.mo Padre Tacchi-Venturi, No. 1615/24, regarding Signora Paola Rollman in Strauss (undated but following documents dated June 1940), Demorazza, b. 11, f. 27 (Jews including foreign and discriminati Jews may manage hotels only for Jewish or foreign guests); but see Demorazza, Memorandum to Prefect of Bolzano, No. 1913/24, March 25, 1941, regarding Col. Riccardo Gandolfo for the minor children Elena and Maria Grazia, Demorazza, b. 11, f. 27 (expressing no objection to granting of boarding house license on behalf of minor children to whom a facility in Merano had been transferred, where neither the children’s mother or other Jewish relatives lived on the premises). The prohibition was eventually extended from Jewish owners to employees including manual laborers and porters at hotel establishments. Questioni Ebraiche Varie: Massime, undated compendium of restrictions on Jews under the Race Laws, Raccolta di Massime, Demorazza, b. 2., f. 11, at 5. See, e.g., Memorandum from Director General for Tourism to Demorazza, No. 8684, Feb. 11, 1939, Demorazza, b. 11, f. 27 (asking Demorazza’s opinion regarding propriety of debt assistance payments (contributi su interessi passivi) to a Jewish-owned hotel in Grado that were necessary to prevent the hotel’s bankruptcy). On the potential damage of the Race Laws to the hotel business, see Letter to Demorazza from the Minister of Popular Culture, “Norme restrittive per gli appartenenti all razza ebraica, March 21, 1940, Demorazza, b. 11, f. 27 (expressing concerns of Director General for Tourism that the percentage of Jews among foreign hotel guests “is not insignificant” and that the Race Laws might accordingly cause financial damage to the hotel and resort industries). A less sympathetic view was displayed in an unsigned letter to the Demorazza which complained that Cortina d’Ampezzo (a fashionable resort located in the Dolomite Mountains) was “literally packed” (zeppa) with Jews in the summer to the point that people in Venice think of Cortina “as a small branch office [succursale] of Tel Aviv,” presumably allowing for a substantial difference in scenery. Unsigned letter, No. 1107, dated May 10, 1939, Demorazza, b. 11, f. 27.

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The domestici and hotel areas suggest a “penumbra” of rules and regulations that extended outward from the core, literal provisions of the original 1938 legislation. At the same time, there emerged a number of more technical problems that – while seemingly narrower in nature – threatened the equal enforcement of the laws and (in extreme cases) raised the specter of deliberate avoidance of the Race Laws by Jewish parties. Here, too, the response was not long in coming. One ongoing issue – familiar to anyone who has ever paid social security taxes22 – was the treatment of Jews who provided services as independent contractors rather than nominal employees. This problem was especially acute, as many Italian municipalities had contracts with Jewish individuals and businesses to provide a range of labor and materials. Thus, in 1939, it was learned, presumably with some embarrassment, that the Public Security Administration had contracted with Jewish firms to provide supplies for military barracks (casermaggio), the contracts apparently having been initiated before the Race Laws were in effect. The cities of Turin and Ancona likewise discovered that Jewish legal experts had been involved, respectively, in litigating a successful case against a water supply company and in negotiating a contract for the provision of spinning wheels to the Ancona prison, while the Ospedale al Mare in Venice had contracted with the Levi Morenos company for its regular coffee supply. While rules regarding such arrangements were inconclusive – one provision allowed public entities to cancel contracts with Jewish firms, while another implied that discriminati Jews were exempt from this and related provisions – but the transactions seemed inconsistent with the spirit of the Race Laws and were arguably indistinguishable from cases in which equivalent services were provided by Jewish employees. Indeed, a precedent allowing such arrangements might provide a way to avoid the prohibitions against Jewish employment with public entities altogether.23 The Demorazza predictably ruled against Jewish participation in the provision of supplies for military barracks, “given the delicate nature of the service which necessarily involves knowledge of delicate information regarding the stationing of military units.”24 In the remaining cases the results were more 22 23

24

See Internal Revenue Code sec. 3401 (defining employer, employee, and various additional terms). See Appunto per S.E. il Sottosegretario di Stato, Demorazza No. 745/24, and attached handwritten note (June 8, 1939), Demorazza, b. 2, f. 11 (military barrack supplies); Appunto per S.E. il Sottosegretario di Stato, Demorazza No. 24000.4/R.A., and attached handwritten note (April 16, 1939), Demorazza, b. 2, f. 11 (Turin); Appunto per S.E. il Sottosegretario di Stato, Demorazza No. 731/24, and attached handwritten note (June 3, 1939), Demorazza, b. 2, f. 11 (Ancona); Appunto per S.E. il Sottosegretario di Stato, Demorazza No. 648/24, and attached handwritten note (May 20, 1939), Demorazza, b. 2, f. 11 (Venice). In the Turin case, the lawyer had served as consultant to the municipality itself while in Ancona he had assisted the (Aryan) supplier. Appunto per S.E. il Sottosegretario di Stato, Demorazza No. 745/24, (June 8, 1939) and attached handwritten note, Demorazza, b. 2, f. 11.

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mixed, the Venice and Turin cases being held against Jewish participation but the Ancona case appearing to have been decided in an opposite manner. In the latter case, the Demorazza simply avoided the evasion problem, holding that nothing in the law prevented discriminati Jews from engaging in business or supply relationships with the public administration.25 The problem of supply contracts suggests pressure to extend the Race Laws to cover transactions that were formally outside the statute but had similar economic or political substance. But it also suggests the difficulty in doing so, when the laws were vague and Jewish interests took a variety of legal and economic forms that could not always be eliminated at a single stroke. As in any legal context, these problems became greater as one moved up the economic scale, resulting in the strange situation that the laws – supposedly intended to curb Jewish economic influence – were in fact more easily and consistently applied against poor Jews than rich ones.26 To the pattern of aggressive interpretation of the Race Laws must thus be added a countervailing pattern of evasion and avoidance, especially at higher income levels, and especially when property rather than personal status was at issue. The interaction between these two opposing tendencies marks a recurring theme of the Race Laws and their enforcement, one that we will witness again in other areas. Collateral Issues and Conflict of Laws: The Pension Benefits Problem Although in theory applying to a small minority of the population, the Race Laws were not entirely self-contained. Instead, the changes created by the laws reverberated through the legal system, creating ripples that threatened to disturb established laws or practices in a variety of substantive areas. While these issues could often be resolved by individual or ad hoc measures, there was a danger that such resolutions would clash with other goals and policies of the Italian legal order, and create precedents that might have dangerous implications in other, unrelated cases. We have previously observed this problem on a theoretical level, in our discussion of positivism, natural law, and the Roman Law tradition;27 but it had a practical side, as well. An interesting example of this problem – and less trivial than might first appear – was the issue of pensions and severance payments for Jews dismissed from employment pursuant to the Race Laws.28 This issue was especially 25 26

27 28

Appunto per S.E. il Sottosegretario di Stato, Demorazza No. 731/24 (June 3, 1939), and attached handwritten note, Demorazza, b. 2, f. 11. A similar situation prevails in modern American law, where wealthy taxpayers are more likely to employ sophisticated tax avoidance strategies than their less wealthy counterparts. See generally Michael A. Livingston & David S. Gamage, Taxation: Law Planning and Policy, 2nd ed. (LexisNexis, 2010), 499–524 (discussing tax avoidance and tax shelter limitations). See Chapter One. The pension issue was significant both because labor reform legislation constituted an important part of the Italian legal order and because a liberal interpretation might require payments to

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fascinating because it involved a clash between the Fascist-era race and labor laws, and because its ambiguous legislative treatment left an unusually wide range of possible interpretations. The collateral nature of this issue also meant that the Demorazza shared jurisdiction with the Finance Ministry and other government agencies. As we have observed, the pension issue was addressed by Articles 21 and 22 of the 1938 laws, which took a superficially moderate approach to the problem although doing little or nothing to ameliorate the effects of the sudden firings.29 These same provisions, “insofar as [they are] applicable” (in quanto applicabili), would be extended to employees of other entities, including the Fascist Party, provincial and local governments, quasi-public entities, banks, and insurance companies, that were required to dismiss Jewish employees the Race Laws.30 Where these rules did not apply, the relevant employers “will liquidate, to the employees dismissed from service, the payments or the indemnities [gli assegni o le indennit`a] envisioned by their own regulations or by the rules that regulate the employment relationship for cases of dismissal or firing against the employees’ will,” a somewhat less generous treatment. The language above plainly had a thrown-together quality, and it did not take long before various interpretive issues arose. A case in point were railway and tram workers (agenti ferro-tramviari) who were dismissed from employment pursuant to Article 13(c). These workers had their own pension fund, which required that the workers have completed twenty-five years of service and have reached the age of sixty for train workers (agenti attivi) or sixty-five for office workers (agenti sedentari) in order to qualify for a pension. In other cases, a departing worker was entitled only to a refund of previous contributions. The fund likewise provided for a one-time severance payment (indennita` di buona uscita) that was substantially less generous than that provided under Section 21. The question arose whether the railway workers were subject to the first paragraph of Article 22, which extended the principles of Article 21 (i.e., the ten-year and the ratable indemnity rules) to the relevant entities, or the second paragraph, which allowed the entities to follow their ordinary, usually less generous procedures. There was

29

30

Jews for a substantial period after their dismissal from employment. A large number of judicial decisions on the Race Laws concerned the pension issue in its various manifestations, see Chapter Four. Article 21 provided that Jews dispensed from State employment as a result of the Race Laws would be entitled to the normal treatment upon dismissal (trattamento di quiescenza) provided by Italian law, with the additional proviso that those who had not otherwise completed the necessary statutory period would receive a minimum pension if they had completed at least ten years of employment. In other cases they would receive an indemnity or severance payment equal to the number of twelfths of their final salary which was equivalent to the years they had been employed. Article 22 addressed the problem of quasi-public entities. See Chapter One. Italian law has historically distinguished between public and private employees with respect to pension rights.

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obvious room for interpretation, since Article 22 extended the Article 21 principles to quasi-public entitles only “insofar as [they are] applicable,” a term which it did not define, and made no specific reference to the railway industry. The question was duly submitted to the interested agencies, each of which seemed to come up with a slightly different answer. According to the Finance Ministry’s General Accounting Department (Ragioneria Generale dello Stato), the dismissed agents were entitled to nothing more than a refund of their previous contributions, as the railway pension fund had an insurance function and could not be expected to take on greater responsibilities than envisioned in its legislative charter. The Ministry of Corporations took a similar view, arguing that dismissal of the Jews constituted an act of force majeure (forza maggiore) not covered by the insurance arrangement: If more generous treatment was sought, it should come from the employers themselves rather than the fund. The Ministry of Communications took a marginally more generous position, agreeing on the pension issue but finding that the workers were entitled to ratable severance payments (indennita` di buon uscita) under the explicit language of Article 22.31 But the Finance Ministry’s Office of Fiscal Coordination and Legislative Studies disagreed, finding that the legislative history of Article 21 indicated a specific intent to override the usual rules of the entities in question and provide more generous treatment to the dismissed employees. In adopting the “insofar as applicable” language of Article 22, the draftsmen had intended to extend analogous treatment to employees of quasi-public entities that had equivalent pension systems. “It is a question,” the office wrote, “of an exception evidently inspired by the opportunity to render less serious the [financial] condition of the released personnel.”32 The memorandum further noted that the railway pension fund provided for the payment of pensions after ten years 31

32

See Ministero delle Finanze, Ragioneria Generale dello Stato, Memorandum to Ufficio di Coordinamento Tributario e di Studi Legislativi: Trattamento degli agenti ferrotramviari di razza ebraica – R. decreto-legge 17–11–1938-XVII, no. 1728, July 12, 1939, Archivio Centrale dello Stato, Ministero delle Finanze, Servizio Beni Ebraici [hereinafter ACS, MdF, SBE] b. 19, f. 22 (General Accounting Office); Ministero delle Corporazioni, Direzione Generale del Personale della Previdenza e del Collocamento, Memorandum to On. Ministero delle Communicazioni: Trattamento degli agenti ferrotramviari di razza ebraica esonerati del servizio in esecuzione del R.D.L. 17 novembre 1938-XVII, no. 1728, March 7, 1939, ACS, MdF, SBE b. 19, f. 22 (corporations ministry); Ministero delle Communicazioni, Ispettorato Generale delle Ferrovie Tramvie e Automobili, Memorandum to On. Presidenza del Consiglio dei Ministri: Trattamento degli agenti ferrotramviari di razza ebraica, esonerati in esecuzione del R.D.L. 17 novembre 1938XVI [sic], n. 1728, April 11, 1939, ACS, MdF, SBE b. 19, f. 22 (communications ministry). See Ministero delle Finanze, Ufficio di Coordinamento Tributario e di Studi Legislativi, Memorandum to Presidenza del Consiglio dei Ministri: Trattamento degli agenti ferrotramviari di razza ebraica, August 31, 1939, at 2, ACS, MdF, SBE b. 19, f. 22. The memorandum was signed by the Finance Minister, suggesting that it represented the official opinion of the Ministry. A second memorandum, dated September 30, 1939, restated the same position.

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of service to employees who were physically unable to continue working as a result of injury, arguing that juridical and physical impossibility of employment should be equivalent for purposes of the statute. The memorandum specifically rejected the “insurance” argument, finding that a contractual relationship existed between the Jews and the employing entities and that the pension funds merely served as financial intermediaries for fulfilling the employer’s contractual obligations.33 The issue was deemed significant enough that it was ultimately considered by the office of the Prime Minister (that is, Mussolini) itself.34 In a memorandum that adopted the logic and much of the language of the legislative studies department, the office held in favor of the dismissed employees on both the pension and severance pay issues. The decision further held that the relevant payments should be made by the pension fund itself and not by the employers, as had been suggested by the corporations ministry: Any changes in this arrangement would require new legislation.35 Together with interpretive issues, the pension rules resulted in a nagging series of conflict-of-law problems. One question involved the interaction of the Race Laws, which stripped Jews naturalized after January 1, 1919, of their citizenship, and employment law, which provided for the forfeiture of pension rights upon the loss of citizenship.36 The employment laws plainly did not envision a mass, involuntary revocation of citizenship like that presently occurring: How should this situation be dealt with? Once again the answer depended upon whom you asked. The Interior Ministry favored a strict application of the forfeiture rule, although issues arose regarding the implementation of the rule while the citizenship revocation process was still in effect.37 But the Finance Ministry’s office of legislative 33 34

35

36 37

Ibid, p. 4. See Presidenza del Consiglio dei Ministri: Gabinetto, Memorandum to Ministero delle Communicazioni, Ispettorato generale delle ferrovie tramvie e automobili and Ministero delle Corporazioni, Direzione generale del personale, della previdenza e del collocamento: Trattamento degli agenti ferrotramvieri di razza ebraica, November 16, 1939, ACS, MdF, SBE b. 19. f. 22. The actual decision was signed by “Il Sottosegretario di Stato,” i.e., Buffarini-Guidi rather than the Duce himself, although there is a suggestion Mussolini reviewed it. Ibid. Ibid., 2. Even this decision did not finally resolve the ferrotramvieri issue: an additional series of memos concerns the applicability of the rules to employees of private contractors who performed services on Milan tram and bus lines. The Ministry of Finance eventually held that such employees were not subject to the Race Laws at all, although it added that “intuitive political reasons may counsel special provisions with regard to Jewish employees.” Ministero delle Finanze, Ufficio Studi Legislativi, Memorandum to Ministero delle Communicazioni, Ispettorato Generale delle Ferrovie, Tramvie ed automobili: Leggi razziali Azienda tramviaria di Milano, March 8, 1941, ACS, MdF, SBE b. 19, f. 22. This rule applied, inter alia, to certain Austro-Hungarian citizens naturalized after World War I. The position of the Interior Ministry is cited in Ministero delle Finanze, Direzione Generale del Tesoro, Memorandum to Ufficio di Coordinamento Tributario e di Studi Legislativi: Applicazione del R.D. Legge 17 Novembre 1938, n. 1728, recante proveddimenti per la difesa della razza, May 6, 1939, ACS, MdF, SBE b. 19, f. 22.

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studies again disagreed, noting that the forfeiture rule applied only to voluntary renunciations of citizenship or those resulting from improper behavior of the relevant individuals. As neither of these facts obtained in the instant case and the Race Laws were silent on the issue, the rule seemed inapplicable. After rejecting no fewer than three different drafts on the subject, the office ruled in favor of a retention of the disputed pension rights.38 If the professions and domestici issues demonstrate the tendency toward expansion of the Race Laws, the pension problem suggests potential roadblocks to that expansion, together with the difficulty of separating the Race Laws from the remainder of the Italian legal system. While the laws could be segregated in a special bureaucracy and insulated from outside review, their operation raised collateral issues that could not be decided without reference to other statutes or administrative bodies. These collateral issues, in turn, required the participation of additional institutional actors, each with their own agendas and their own bureaucratic “turf” to protect, that might complicate interpretation and slow down or temporarily ameliorate the enforcement process. Such problems were particularly significant with respect to financial or monetary issues, where the number of actors – notably the Finance Ministry – tended to be greater than for marriage or other personal status matters. A strange dichotomy arose, under which Jews had few allies in defending their individual liberties but might have rather more luck, at least for a time, in protecting their property. Of arguably limited significance in the pension area, this dichotomy was to become more pronounced when dealing with Jewish-owned businesses, corporations, and property transfers and similar evasion tactics, as observed below. The pension issue hints at a problem that was to plague the Race Laws throughout their existence: What to do when the laws conflicted with other, frequently more long-standing aspects of the Italian legal structure? A problem with any new enactment, this issue was especially pronounced for the Race Laws, which contradicted basic principles of Italian law, such as the equality of citizens and the sanctity of contractual arrangements, together with institutional arrangements like the 1929 Lateran Treaties and various agreements with foreign countries. This issue has already been observed in Chapter Two in connection with the mixed marriage problem. The issue was to expand at the administrative stage, with conflicts of law now buttressed by agency rivalries and competing institutional interests. A further example of the conflict of laws problem is the case of ebrei stranieri (foreign Jews). From the beginning, the Race Laws distinguished between Jews 38

See Ministero delle Finanze, Ufficio di Coordinamento Tributario e di Studi Legislativi, Memorandum to On. Direzione Generale del Tesoro: Leggi razziali – perdit`a della pensione, July 4, 1939, ACS, MdF, SBE b. 18, f. 3. The previous drafts of the memorandum were deemed to tread on the jurisdiction of the Interior Ministry and progressively restricted until a brief, one-page document was left; the earlier versions have the word sostuito (replaced) scrawled across them and were apparently never sent.

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who were Italian citizens and those – including some who became citizens after the First World War – whom it regarded as foreign. By and large, the laws were harsher with respect to foreign Jews, calling for their expulsion from Italy by March 1939 and imposing harsh restrictions while they remained in the country.39 Yet in some cases foreign status might be beneficial, enabling one to escape or avoid certain Race Laws prohibitions, particularly if they violated international comity or existing treaty obligations. In other cases it was preferable to be subject to Italian law, since neighboring countries – notably Germany, Austria, and later France – often had more stringent antisemitic laws. All in all, it was a situation characterized by a high degree of ambiguity, and it was to result in a maze of confusing and contradictory policies throughout the Race Laws era. This issue, which frequently involved the courts as well as administrative agencies, is discussed further in the following chapter. The Evasion Problem and the Specter of Conflicting Economic Interests Until this point we have observed the Jews largely as victims, with the Race Laws expanding or stalling according to their own momentum or internal bureaucratic conflicts. But the Jews – contrary to some postwar stereotypes – also took active steps to protect themselves and their resources. This is a significant ideological as well as legal issue, because the concept of Jewish cleverness (furbizia) was important in Italian antisemitism, while the (seemingly contradictory) accusation of passivity has also been leveled at Jews in the Holocaust period.40 A bit of background may be helpful here. One of the inevitable challenges faced by any system of forced property transfers, whether partial confiscation like an ordinary tax system or more complete confiscation like the Race Laws, is the evasion problem. Both logic and experience suggest people will adopt a variety of strategies before acquiescing to the surrender of their assets. While it is possible to combat such strategies, as any tax lawyer knows, it is also costly and difficult, and provides a good test of the legal system’s determination in enforcing its norms. As might be expected, the Italian Jews employed a variety of methods in attempting to evade the business and property restrictions. These included temporary or permanent transfers to non-Jewish persons, transfers to charitable 39

40

Art. 24. The expulsion order did not apply to those who entered Italy before 1919, were married to Italians, or were over 65 (Art. 25). Despite these rules, five thousand or more foreign Jews remained in the country in 1940, many of whom were later subject to internment. Michele ` persecuzione (Turin: Einaudi, 2000), Sarfatti, Gli ebrei nell’italia fascista: vicende, identita, 170–75. For two views on the passivity issue, see Raul Hilberg, The Destruction of the European Jews, 3rd ed. (Teaneck: Holmes & Meier, 2003); Yehuda Bauer, Rethinking the Holocaust (New Haven: Yale University Press, 2001). This issue is of Jewish resistance is discussed further in Chapter Five.

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or community organizations, often with a retained economic interest (e.g., a continued right to use the property or income from it), and the creation of stock corporations in an effort to disguise or conceal Jewish ownership.41 As might also be expected, the authorities attempted, both by means of general principles and interventions in specific cases, to combat such evasion. In some cases these efforts were unsuccessful, and Jews succeeded (at least for a time) in holding on to their assets. Yet here again, such failures appear to have resulted more from resource limitations and interagency conflict than sympathy toward the Jews or intentionally lax enforcement; and (over time) the freedom of maneuver available to the Jews became more and more restricted. Indeed, the evasion issue is a microcosm of the Race Laws as a whole: a mixture of gratuitous harshness and rampant inefficiency, with Jews playing for time as the circle closed, slowly but inexorably, around them. A first issue involved evasive transfers of property. As we saw in Chapter Two, the Race Laws prohibited individual Jews from owning land having an appraised value in excess of 5,000 lire or urban real estate exceeding 20,000 lire.42 The rules applied to both residential and commercial property. The most obvious way to avoid these provisions was to transfer property to another party that was not subject to these rules. In the simplest version a Jew might sell his home or business outright to a non-Jewish friend, partner, or relative, possibly retaining some kind of informal management or other interest together with the promise or at least the hope that all or a portion of the property would be returned when and if the laws were repealed. A more sophisticated plan involved the gratuitous transfer (donazione) of property to another individual or to a communal or charitable organization, but with the right to what estate lawyers call a “usufruct” (usufrutto in Italian) – the right to continue living in a home, continue to receive income from the property, etc. – being retained by the donor indefinitely or for a specified period of time.43 Since the rules were applied on an individual basis, there was also the possibility of dividing the property among other (Jewish) family members, 41 42

43

See Chapter Two. Art. 10(d), (e). The actual statutory terms were estimo (appraised value) for land [terreni] and imponibile (taxable value) for urban real estate [fabbricati urbani]. There were approximately 20 lire to the dollar in the 1930s at the official rate but probably more in economic terms. The parallel between avoidance techniques under the Race Laws and those employed by contemporary trust and estate lawyers are striking: although not surprising since, conceptually speaking, a tax (especially a property tax) is simply a form of partial confiscation. For example, the transfer of property with a retained economic interest is generally known as a “2036” transaction under American estate law, after the relevant section of the tax code, and other techniques (transfers to relatives, use of corporations, etc.) are similarly popular in the current era. The difference, of course, is the equal application of the laws and their legislative purpose. See generally Regis W. Campfield, Estate Planning and Drafting, 3rd ed. (West, 2007) (teaching materials on estate planning and tax reduction methods); Internal Revenue Code sec. 2036 (transfer with retained life estate (usufruct) generally treated as incomplete for gift and estate tax purposes).

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so that each individual lot was small enough to escape application of the laws. Each strategy involved a certain level of trust on the part of the donor, since the arrangements had varying degrees of formality and there was often no guarantee of the property’s subsequent return or continued enjoyment of the items at issue; but in the circumstances such arrangements were usually preferable to the available alternatives. Anticipating the enactment of new limitations, whose general existence if not details were widely hinted at in the media and elsewhere, Jews began transferring property to each category of potential recipients – family members, non-Jews, charitable organizations and in some cases corporations – even before the enactment of the Race Laws.44 The November 1938 legislation was silent about the problem, but the norme di attuazione, adopted in February 1939, contained two provisions. First, the norme prohibited the sale, gratuitous transfer, or mortgaging of real property that was subject to the new limitations without express authorization of the Interior Ministry, which was to be given only in special circumstances. Transfers in violation of this provision, and which exceeded the amount of real estate permitted to Jews under the law, were without legal effect.45 Second, as a limited exception, the rules permitted for a 180-day period transfers (donazioni) to either (1) spouses or descendants who were not themselves considered to be Jewish under the Race Laws, or (2) organizations “having the goal of education or welfare” (che abbiano fini di educazione od assistenza).46 The norme did not elaborate as to what types of organizations would qualify under the latter provision or the conditions that might be placed upon the transfers. However, a telegram from the Interior Ministry to prefects set an aggressive tone, instructing that the real estate rules be enforced with “full and complete dispatch and inflexible application” (che . . . abbiano piena completa sollecita et inflessibile applicazione).47 Whether because of the complexity of the issues involved, or simply the slow pace of the bureaucracy, there were few cases involving the transfer limits in the first year after enactment. In 1940 and 1941, however, a large number of administrative decisions began to appear in the files of the Demorazza, the Finance Ministry, and other interested agencies. An initial problem regarded the definition of individuals and organizations that qualified to receive transfers 44

45

46 47

A letter to the Demorazza and other interested agencies from a prominent Turin judge, warning of these anticipatory transfers and calling for aggressive new legislation to counteract them, is discussed with the remaining judicial materials in Chapter Four. Regio Decreto-Legge 9 febbraio 1939-XVII, no. 126, Norme di attuazione ed integrazione delle disposizioni di cui all’art. 10 del R. decreto-legge 17 novembere 1938-XVII, n. 1728, relative ai limiti di propriet`a immobiliare e di attivit`a industriale e commerciale per i cittadini italiani di razza ebraica, Art. V. Ibid., Art. VI. See Telegram from Interior Minister [i.e., Buffarini Guidi] to Prefects, No. 4389, Feb. 8, 1939, Demorazza b. 7., f. 24 (XLVI) (10)(1).

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under the 180-day rule. For individual recipients, the biggest problem was demonstrating the non-Jewish character of the recipient, a problem that became more difficult as progressively more complex types of transfer were envisioned. A novel and creative example was presented by one Irma Zamorani, who attempted to transfer property to the unborn and apparently unconceived children of the marriage between her daughter and an Aryan husband, the children (although not their mother or their grandmother) qualifying as Aryans under the definitions of the Race Laws. Finding that Article Six of the norme “contains an exceptional rule . . . that can only be interpreted restrictively” and that “authorizing the transfer above would provide a means to the Jewish recipient [an apparent reference to the daughter] to evade the property restrictions to which she is subject for a potentially long and indeterminate period,” the Demorazza rejected the transfer.48 By contrast, the Demorazza did permit a transfer to the conceived but as yet unborn grandchild of Giuseppe Forti, whose son was married to an Aryan woman, the approval being conditioned upon the baptism of the child within 10 days of his birth.49 Transfers to discriminati Jews were dealt with more easily: There being no statutory provision for such arrangements, the Demorazza uniformly rejected them.50 Definitional issues likewise arose with respect to institutional recipients – issues that often pitted the donees and their protectors in the Italian bureaucracy, who were happy to have such unexpected contributions, against the Demorazza, who saw them primarily as a means for evading the Race Laws. One unusual case involved the Collegio Internazionale della Consolata per le Missioni Estere in Turin, which operated autonomously although it was nominally part of the Sacred Congregation for the Propagation of the Faith (Propaganda Fide), and which maintained religious missions in Kaffa, Ethiopia, as well as in the British territories of Kenya and Tanganyika. Was this within the definition of organizations “having the goal of education or welfare,” to which donations from Jews could be accepted? The Religions Administration of the Interior Ministry, to whom the question was originally posed, held it was but 48

49

50

See Demorazza, Letter to Ministero delle Finanze, Direzione Generale per Il Coordinamento Tributario e per gli Affari Generali, No. 1518/24: Donazione Zamorani, May 8, 1940, Demorazza b. 7., f. 24. The Finance Ministry had asked for the Demorazza’s opinion on the issue although initially focusing on the religious status of the unborn children rather than the evasion problem. Also mitigating against the transfer was the existence of a usufruct for the donor although the Demorazza ruling did not reach this second issue. The use of the plural word for unborn children (nascituri) suggests the children in question had not yet been conceived. See Demorazza, Note to S.E. Il Prefetto di Firenze, No. 1201/24: Donazione Forti Giuseppe in favore di nascituro, Jan. 15, 1940, Demorazza b. 7, f. 24 XLVI. The transfer was approved despite the presence of a usufruct that appears to have been overlooked by the agency; see later discussion. See, e.g., Letter from Demorazza to Prefect of Rome: Donazioni d’immobili tra ebrei – istanza di Bianca Sraffa Ved. Della Pergola, residente in Roma Via II Settembre 98 E., Jan. 10, 1940, Demorazza b. 7, f. 24. (holding that Article 6 applies only to Aryan descendants and not to discriminati Jews).

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asked for the opinion of the Demorazza. The latter was more circumspect: In a handwritten note, it noted the strict conditions that applied to such transfers and expressed doubt whether these had been met.51 The Demorazza likewise rejected the proposed donation of a building by Signora Lina Fo`a in Navarra to the City of Milan to be used by the Museum of Italian Fashion, finding that the donee failed to qualify as an educational or welfare organization, and a donation by one Giulia Treves fu Tobia to the Collegio Missionario Antonio Rosmini, whose work was conducted primarily overseas and did not directly benefit Italian citizens.52 Perhaps the most frequently arising transfer issue was the usufrutto (usufruct) problem. Because retained interest transfers permit a donor to claim to have parted with property while continuing to enjoy at least temporary use or benefit from it, they constitute a rather obvious form of evasion, and the Demorazza sought early on to block them. The problem was that, under Italian law, a usufruct had historically been treated as part of the property retained by the transferor rather than part of the property transferred to the recipient. Under conventional principles of statutory interpretation, a rule barring transfers of property thus had nothing to say about the retention of this type of interest, whatever their practical impact. The Finance and Justice ministries, who were first called upon to examine the issue, took the position that the transactions should be permitted. According to the Finance Ministry, “such a reserve is precisely the contrary of an act of alienation because it is instead a limitation brought to an act of alienation (donation).”53 The Finance Ministry further noted that there was nothing in 51

52

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See Ministero dell’Interno, Direzione Generale dei Culti, Letter to Demorazza, no. 5967/539RD: Donazione da parte di cittadini di razza ebraica, July 7, 1939, Demorazza b. 7, f. 24 XLVI (opinion of Religions Administration); Ministero dell’Interno, Divisione Razza, Risposta al Telespresso April 19, 1939, No. 309451/88: donazione da parte di israeliti italiani, September 4, 1939, Demorazza b. 7., f. 24 XLVI (opinion of Demorazza). Pursuant to the Race Laws, Jewish foundations could continue to exist on condition that they serve an exclusively Jewish clientele; those that attempted to serve both Jews and Aryans were required either to devote themselves exclusively to Jewish causes or else to liquidate. See Ministero dell’Interno, Gabinetto dell’Eccellenza il Ministro, Appunto per La Direzione Generale della Amministrazione Civile, date unclear but received at Demorazza April 18, 1941, Demorazza b. 7, f. 24. Because of the relatively small number of foundations serving exclusively Jewish causes, most of the donazioni cases appear to have involved aryan (i.e., non-Jewish) charities. See Demorazza, Note to Ministero delle Finanze, Direzione Generale per il Coordinamento Tributario, gli Affari Generali e il Personale, No. A/296: Leggi razziali – Donazione della Signora Lina Fo`a in Navarra al Comune di Milano, March, 16, 1949, Demorazza b. 7, f. 24 XLVI; Demorazza, Note to Direzione Generale dei Culti, Nol. 1076/24: Donazione Treves Giulia fu Tobia, Dec. 1, 1939, Demorazza b. 7, f. 24 XLVI. Each of these two cases also involved a usufruct or other retained interest. See Ministero delle Finanze, Ufficio Studi Legislativi, Letter to Demorazza, No. B.29430: Leggi Razziali – Donazione Lattes Alberto fu Davide, Aug. 16, 1940, Demorazza b. 7, f. 24 XLVI, at 2. The Justice Ministry’s position, which occurs to have coincided with that of the Finance Ministry, is cited on page three of the letter.

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the history of the 1938 or 1939 legislation that suggested an intention to bar usufrutto transactions; if such was the Demorazza’s purpose, the Ministry stated in a subsequent letter, it should properly seek new legislation.54 The Demorazza was predictably of another view. Regarding the usufrutto arrangement as a quintessential avoidance transaction – and notwithstanding the Finance Ministry position in the same case – the agency issued a onesentence note confirming that “by superior order [per disposizione Superiore], there may not be permitted the acceptance of donations arranged by Jews with reserve of a usufruct or otherwise conditioned.”55 The Demorazza applied this same rule in other cases, in some cases overruling the Finance Ministry, while in others raising the matter sua sponte in transactions that had been referred for other reasons. For example, in June 1940, the Finance Ministry wrote a letter approving a donation of property by Elisa Segre´ to the Elvira Segre´ Nursery School in Modena, although the property was subject to a usufrutto and further subject to revocation if the donor were to be successful in obtaining discriminata status. The Demorazza quickly fired off a letter rejecting the transfer.56 By contrast, when the widow Eugenia Garda attempted to transfer real estate to her daughter with reserve of a usufrutto and subject to a mortgage debt, the Finance Ministry wrote the Demorazza because the recipient was the product of a mixed marriage, appearing to take for granted that neither the usufrutto nor the mortgage were enough to vitiate the transaction. Raising the issue of its own accord, the Demorazza rejected the transaction.57 Only in unusual cases did the agency display any flexibility, as when the widow Teresita Stein donated a one-half interest in real estate with reserve of usufrutto to the Ospedale Maggiore di Milano, the remaining half interest 54

55

56

57

See Ministero delle Finanze, Direzione Generale per il Coordinamento Tributario gli Affari Generali e il Personale, No. 18–2517: Leggi razziali: Donazione Lattes Alberto fu David, Feb. 6, 1941, Demorazza b. 7, f. 4 XLVI. See Demorazza, Letter to Ministero delle Finanze, Direzione Gen. per il Coordinamento Tributario, ecc. ecc., No. 1866/24: Donazione Lattes Alberto fu Davide, Jan. 22, 1941, Demorazza b. 7, f. 24 XLVI. “Superior Order” in this context likely means the Duce himself. See Ministero delle Finanze, Ufficio Studi Legislativi, Letter to Ministero dell’Interno, Direzione Generale della Demografia e della Razza, No. 16308: Leggi razziali – Donazione della Signorina Elisa Segre’ all’Asila Infantile di Migliarana e Budrione, June 15, 1940, Demorazza b. 7, f. 24 XLVI (approving transfer despite conditional nature and usufrutto but forwarding to Demorazza because of political sensitivity of the case); Demorazza, Note to Ministero delle Finanze, Dir. Gen. per il Coordinamento Tributario ecc., No. 1612/24: Donazione Segre’ Elisa, Aug. 4, 1940, Demorazza b. 7, f. 24 XLVI (rejecting transfer because of presence of usufrutto). See Ministero delle Finanze, Ufficio Studi Legislativi, Letter to Ministero dell’Interno, Direzione Generale per la Demografia e per la Razza, No. 17521: Leggi razziali – Donazione della signora Eugenia Garda fu Davide, July 8. 1940, Demorazza b. 7, f. 24 XLVI (Finance Ministry letter forwarding case to Demorazza because of presence of mixed marriage issue); Demorazza, Note to Ministero delle Finanze, Direzione Generale per il Coordinamento tributario ecc., No. 1705/24: Donazione Eugenia Garda, Aug. 16, 1940, Demorazza b. 7, f. 24 XLVI (rejecting donation because of reserve of usufrutto). To emphasize the point the word contra (“opposed” or “rejected”) is scrawled across the Finance Ministry letter.

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having previously been donated by her husband and thus already in posses` of the case,” sion of the donee. “Given the unusual character [particolarita] the Demorazza wrote a memorandum in December 1939 recommending the transfer be allowed. Even this limited exception was rejected at the ministerial level.58 Given the large number of issues involved, it is perhaps not surprising that the usufrutto issue eventually found its way into the Italian judicial system.59 In December 1940 the Consiglio di Stato, sitting in Rome, considered a donation of real estate by Professor Leo Guetta to the Ente Comunale di Assistenza di Venezia, the donation including the reserve of a usufrutto to the donor who also committed to pay taxes and expenses on the property for its duration.60 The donee originally accepted the gift, but was ordered by the local prefect to return it following the Interior Ministry’s initial ruling prohibiting acceptance of conditional gifts by Jewish donors. The donee appealed, arguing that it should be permitted to accept the gift or in the alternative that the usufrutto – which was a small fraction of the overall value of the property – should be stripped from the donor without affecting the validity of the transfer. The appellant’s argument relied on both the literal language of the statute and on the Ministry of Finance’s opinion in favor of usufrutto transactions.61 58

59

60 61

See Demorazza, Note to Gabinetto di S.E. Il Ministro, No. 1251/24: Donazione Teresita Stein, Jan. 16, 1940, Demorazza b. 7, f. 24 XLVI (recommending acceptance of the proposed transfer despite the general rule against usufrutto transactions; Ministero dell’Interno, Gabinetto di S.E. il Ministro, Letter to Direzione Generale della Demografia e la Razza, No. 25750: Teresita Stein ve. Maggioni – Donazione all’Ospedale Maggiore di Milano, Jan. 30, 1940, Demorazza v. 7., f. 24 XLVI (rejecting transfer because of presence of usufrutto). The exactitude with which the Demorazza applied Article 6 is demonstrated by the case of Ernesto Cal`o, who sought to transfer real property to his Aryan grandchildren with a usufrutto, until the donees reached adulthood, to be divided between a Jewish and a Catholic facility. Only the latter was permitted. Ministero dell’Interno, Divisione Razza, Note to Prefect of Firenze: Donazione da parte di ebrei: art. 6 R.D.L:. 9/2/1939 n. 126, Jul. 19, 1939, Demorazza b. 7, f. 24 XLVI. Because this case relates directly to issues discussed in this chapter, it is considered at this point. Most judicial decisions, together with historical background on the Fascist era magistratura, are discussed in Chapter Four. The Consiglio di Stato, equivalent to the French Conseil d’Etat, considers cases involving one or more governmental parties. See Chapter Four. Ente Comunale di Assistenza di Venezia c. Prefetto di Venezia, Consiglio di Stato, sec. 5, No. 795, Nov. 26, 1940, at 2–4. A complete copy of the decision is found at Demorazza b. 7, f. 24 XLVI. A copy of the appellant’s brief, and additional documentation regarding the case, are contained in the same file. An appeal regarding another usufrutto case had apparently been filed with the Consiglio di Stato but was withdrawn in the spring of 1940. See Prefettura di Bologna, Letter to Ministero dell’Interno, Direzione Generale della Amministrazione Civile with copy to Direzione Generale per la Demografia e la Razza, No. 21987: Bologna – Ritiro San Pellegrino – Donazione Padoa, July 3, 1940, Demorazza b. 7, f. 24 XLVI (noting decision by Girolamo Garibaldi Padoa to withdraw appeal for revocation of the Prefect’s decree prohibiting acceptance of conditional gift to the San Pellegrino facility). Further judicial decisions are discussed in Chapter Four.

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The court held in favor of the prefect (i.e., the Demorazza) and ordered the property returned to the donor. According to the court, the law spoke simply of gifts and did not mention the reserve of a usufrutto, which tended by its very nature to cause the enjoyment of property to remain with the Jewish party for the remainder of his or her life. The administrative authority was thus within its rights in finding that a gift having this donative purpose (animus donandi) did not merit acceptance by the donee under the racial laws. This was particularly true given the “exquisitely political” nature of the subject matter and the absence of any illegal behavior or assertion of excessive power (eccesso di potere) on the part of the prefect or the Interior Ministry. Indeed these agencies appeared to have been motivated by “the intention not to indulge malicious (cunning) efforts at evasion of the concrete purpose of Fascist law” (l’intendimento di non indulgere a maliziosi tenativi di evasione della volont`a concreta della legge fascista).62 Thus the legislative purpose as well as the language of the statute itself supported the prefect’s position. A less weighty, if revealing, issue involved the matter of foundations that bore the name of the Jewish donor. While the law permitted transfers to educational and welfare organizations, having a building or collection carry a recognizably Jewish name was apparently more than the bureaucracy could bear. Thus, for example, the Demorazza in March 1941 rejected an arrangement under which the survivors of the Avv. Giacomo Sacerdote had donated his collection of music books to the Turin public library, the donor’s name being noted on the collection itself and on a memorial tablet, despite the fact that the donation represented one of the few collections of its kind in the country and the arrangement itself had been in effect since 1922. The Demorazza ruled that, while donations by Jews to public entities could remain in effect, their names were not to be recorded in any way, including tablets, titles of prizes, and names of scholarships; even the mention of their names in the communal budget was henceforth to be avoided.63 A similar result obtained for a donation by the Baroness Weil Weiss, who wished to contribute funds for construction of a Mothers’ and Infants’ Home in the town of Pavia bearing the name of her late husband. This donation was to be accepted only if made in the donor’s maiden name and excluding any mention of the person she wished to honor.64 62 63

64

Ibid., p. 6. See Ministero dell’Interno, Direzione Generale per la Demografia e la Razza, Letter to R. Prefettura di Torino, No. 2100/30: Lasciti di Ebrei, March 17, 1941, Demorazza b. 7, f. 24 XLVI; Letter to Demorazza from R. Prefettura di Torino, Citt`a di Torino – Lasciti di ebrei, date unclear but received at Demorazza March 23, 1941, Demorazza b. 7, f. 24 XLVI. See Ministero dell’Interno, Gabinetto dell’Eccellenza il Ministro, Letter to Prefect of Pavia, No. 901–30: Pavia – Donazione Weil Weis di una “Casa Madre e del Bambino,” March 6, 1941, Demorazza b. 7, f. 24 XLVI. The issue of donations to public facilities appears to have occasioned a fair amount of internal disagreement within the Demorazza: in at least two cases an initial positive decision was subsequently reversed, the ubiquitous word no or niente scrawled over the initial decision and a new negative decision prepared, although in the second case the

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Issues like the naming rules might appear to give the transfer provisions a trivial or even comic flavor. But the cruelty of the Race Laws should not be forgotten even in this context. In the midst of the donazioni files appears the case of one Isaaco Bondi who asked for an exception permitting his only son, who suffered from infantile paralysis and did not have other living relatives, to be admitted after his father’s death to the Isituto dell’Addolorata in Rome, which was restricted to Aryans under the racial laws. The single word niente is scrawled across the top of the request.65 Mortgages, Leases, Exchanges: Collateral Issues in the Sale of Property To prevent Jews from selling properties that would otherwise be subject to confiscation, the Race Laws early on adopted a rule prohibiting such sales without the express permission of the Demorazza. As we have previously observed, one evasive technique involved the gratuitous transfer of property. Another, still larger category of cases concerned the issue of mortgages and other liens with respect to Jewish-owned property. Mortgages pose a problem for any system of confiscation because a loan secured by real estate transforms the latter, economically speaking, into the equivalent of cash. By defaulting on the loan, and allowing the property to pass to the creditor, the owner might accomplish an effect similar to a sale while avoiding the sale prohibition.66 The obvious solution was to adopt a rule prohibiting the taking out of new mortgages on Jewish property. Yet this solution left numerous questions, notably the treatment of mortgages taken out before the effective date of the Race Laws, which might have the same evasive effect but which lacked an illicit motive, and whose cancellation might cause greater damage to the (primarily non-Jewish) lenders than to the Jewish

65

66

agency appears to have changed its mind again and permitted the donation. See Demorazza, Letter to Direzione Generale Della Amministrazione Civile, No. 1200/24: Acqui – Ricovero Ottolenghi – Donazione, Jan. 14, 1940, Demorazza b. 7, f. 24 XLVI (refusing to permit an additional donation of real estate by one Arturo Ottolenghi to already-existing Ottolenghi Old Age Home of Acqui); Demorazza, Letter to Ministero dell’Educazione Nazionale, No. 979/24: Lola Lorme, September 26, 1939, Demorazza b. 7, f. 24 XLVI (appearing to permit donation of Goldoni collection to Biblioteca Goldoniana in Venice by an Austrian Jew who had translated Goldoni’s work into German, the Education Ministry having committed to avoid insofar as possible any mention of the donor). See Ministero dell’Interno: Direzione Generale per la Demografia e la Razza, Appunto per Il Sottosegretario di Stato: No. 16659 Ben., May 5, 1941, Demorazza b. 7, f. 24 (1) XLVI. An earlier request had been made on Bondi’s behalf in November 1938 and offered to donate a parcel of real estate in order to cover the costs of his son’s admission to a similar institution; the request was addressed directly to the Duce and bears a stamp indicating that he personally reviewed it. Letter addressed to Duce from Procuratio Generalis Servorum a Charitate in Urbe, Nov. 9, 1938, bearing stamp “V. da S.E. Il Capo del Governo,” Demorazza b. 7, f. 24(1) XLVI. The existence of mortgage debts, together with doubts about the donee’s qualification under Article 6, was cited by the Demorazza as a reason for rejecting at least one gratuitous transfer (donazione). See note 57.

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owners. A fear of backdated mortgages – a common avoidance technique – contributed further to this concern. Together with these theoretical issues were numerous practical problems, such as when a change of term or interest rate constituted a “new” mortgage, the distinction between secured and unsecured creditors, and how to value property subject to a mortgage interest. All these are common problems in business life, but took on new significance under the Race Laws As described in Chapter Two, the norme provided that taking out of new mortgages (ipoteche) on Jewish real estate was prohibited until the final allocation of the property between permitted and excess shares (quota consentita and quota eccedente) was completed.67 Preexisting mortgage debts remained in effect but were subject to special rules, which provided that creditors could proceed against Jewish debtors in a normal manner with respect to (1) mortgage debts (crediti ipotecari) entered into before the effective date and (2) other debts, also entered into before the effective date, which had a secured lien interest with respect to the relevant real estate (aventi privilegio speciale sull’immobile) (Article 8).68 In other cases (e.g., unsecured or subsequent debts), such proceedings were to be prohibited until the division between permitted and excess shares: at that time the permitted share would be treated like any other real estate and the excess share would pass to the EGELI, who would take responsibility for the debt and reduce the price paid to the Jewish owner by a corresponding amount.69 The intent of these rules was to freeze the situation existing at the time of legislation, so as to protect bona fide creditors while preventing evasion by the Jewish owners. The rules above were logical but generic in nature, and did not resolve the underlying tension between the non-Jewish lenders, who had an economic interest in seeing the Jews hold on to their property and repay the loan, and the Demorazza, which was predictably indifferent to such concerns. Thus it is not surprising that numerous conflicts arose. The situation of Lina Fo`a Navarra, who owned property on Via Anfiteatro in Milan, exemplifies this phenomenon. Before the advent of the Race Laws, Foa had taken out three separate mortgages totaling 299,000 lire in principal on the property. After she defaulted on several interest payments – and having already rejected two separate proposals on her behalf – the bank agreed to permit her to take out a relatively modest settlement mortgage (mutuo di sistemazione) 67

68 69

Regio Decreto-Legge 9 febbraio 1939-XVII, no. 126, Norme di attuazione ed integrazione delle disposizioni di cui all’art. 10 del R. decreto-legge 17 novembere 1938-XVII, n. 1728, relative ai limiti di propriet`a immobiliare e di attivit`a industriale e commerciale per i cittadini italiani di razza ebraica, Art. V. Ibid., Art. 8. These proceedings would terminate, with respect to the excess share, upon the division into permitted and excess portions. Ibid., Art. 21. Whenever possible, mortgaged property was to be included in the excess portion (i.e, the part which passed to the EGELI rather than that retained by the Jewish owner). Ibid., Art. 19.

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in an amount necessary to cover her existing arrears. The arrangement made business sense because of the relatively high value of the property and was clearly preferable to the likely alternative, i.e., foreclosure followed by auction sale of the property.70 Because Foa was Jewish, the bank was concerned that the changes might constitute a new mortgage in violation of the racial laws. Accordingly it wrote to the Interior Ministry, emphasizing the economic logic of the transaction and seeking a ruling authorizing the settlement proposal. The files suggest that the transaction was allowed to proceed.71 The Foa case is revealing, suggesting that the Race Laws had become so recognizable a part of the legal order that the sale or mortgage issue was frequently raised by one party to a transaction of its own accord. Indeed, this happened in several cases. Thus, the footwear vendor Allo Stivale d’Italia in Rome, whose previous location had been subject to demolition, asked permission to purchase a new location from a company having at least one Jewish manager.72 Another letter asked permission to sell property of a formerly Jewish company now in liquidation, suggesting that the alternative was a default on debts to the detriment of the company’s (non-Jewish) creditors.73 The resolution of these cases is unclear. Some issues were so esoteric that even the Demorazza seemed uncertain how to respond. A Venice notary, asked to record the sale of a yacht by a Jew, inquired of the harbor master whether and how the transaction should be recorded. The issue was duly relayed to the Merchant Marine Authority and (eventually) the Demorazza, which requested higher instructions before proceeding.74 Still further cases involved transfers of cars, aircraft, and similar items, which – although not specifically prohibited by the law – were arguably inconsistent with its spirit; many such transfers were prohibited.75 70

71

72 73

74

75

See Letter from the Director, Credito Fondario della Cassa di Risparmio delle Provincie Lombarde, to Ministero degli Interni, Direzione Generale Affari Generali, Feb. 14, 1940, Demorazza b. 7, f. 24(1) XLVI, at 2 (“This proposal would merit favorable reception given its practicality and convenience, also relieving this Institute of the need to resort to real estate execution procedures with the consequent risks of an auction sale”). The letter was received on Feb. 19 by the Demorazza which forwarded it to the Finance Ministry two weeks later. Demorazza files do not indicate how the issue as resolved; by contrast Foa’s file at the Ministry of Finance is empty but contains a subject item indicating a “nulla osta” (no objection) to the transaction. ACS, MdF, SBE, b. 35 (Fo`a Navarra Lina). See Letter to Demorazza from Armando Bonafoni, Calzature Allo Stivale d’Italia, Nov. 23, 2938, Demorazza 7.24. See Prefect of Imperia, Memorandum to Onorevole Ministero Dell’Interno, Direzione Generale per la Demografia e Razza, n. 2610: Istanza liquidatore della Societ`a Collettiva “Nuova Italsoja,” Dec. 14, 1939, Demorazza 7.24(1). See Ministero dell’Interno, Demorazza, handwritten note to the acting Interior Minister, No. 24000 4RA 326: Trapasso di navi di propriet`a di ebrei, Feb. 2, 1939, Demorazza 7.24(1). The documents do not specify how this issue was eventually decided. See Demorazza, handwritten note No. 109485: Trasferimento di autoveicoli tra ebrei ed ariani, June 22, 1939, Demorazza b. 7, f. 24(1) (prohibiting transfers of automobiles designed to avoid

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One fascinating line of decisions involved a proposed exchange of real estate between Italian Jews and other (non-Jewish) Italians who owned property in other countries. The idea was an appealing one: Jews who owned real estate in excess of the permitted limits would exchange it for real estate owned by nonJewish Italians in other countries, who wished to return home but might have trouble selling the foreign property for legal or economic reasons. That many of the Italian Jews might soon be leaving Italy themselves made the proposal even more beguiling. The idea of an exchange was particularly attractive to Italians resident in Egypt, whose future in an effective British protectorate looked increasingly uncertain as the war approached. Although economically attractive, the concept of an exchange raised troubling issues under both the Race Laws, which prohibited real estate sales by Italian Jews, and the equally stringent Fascist era regulations regarding foreign economic activity by Italian citizens. In particular there was the fear that such exchanges might provide the Jews with a form of assets (in this case, foreign real estate) that was no longer subject to Italian control and which might later be sold or transferred to other, non-Jewish Italians thereby undermining the stated policy of isolating the Jews from the rest of the Italian economy. The issue was sensitive enough that a note was prepared requesting Mussolini’s personal opinion on the matter, although it is unclear whether the note was ever delivered, and there is no evidence that the scheme was actually approved.76 The issue of sales (as opposed to exchanges) of foreign real estate surfaced again in 1942, with at least four institutional actors – the Demorazza, the Ministry of Foreign Affairs, the Ministry of Exchange and Currency (Ministero per gli Scambi e le Valute), and eventually the judicial system – becoming involved in the matter; here again there is no evidence of the transaction proceeding.77

76

77

the prohibition on employing Aryan drivers); but see Demorazza, handwritten note No. 4098: Trapasso di velivoli di propriet`a di ebrei ad ariani, Mar. 16, 1939, Demorazza b. 7, f. 24(1) XLVI (permitting Jewish pilots of tourist aircraft to transfer them to non-Jews “by superior determination”). See Ministero delle Finanze, Appunto per il Duce, Alienazione di beni immobili e di aziende di propriet`a di ebrei, ACS, MdF, SBE. b. 3, f. 1. Although not reaching a formal decision, the document is skeptical of the proposal, noting that the proposed exchanges would be contrary to the policy of racial separation and would have currency implications (riflessi di carattere valutario) since the proposed transactions might delay or forestall the importation of foreign currency by the overseas Italian involved. The document is itself undated but bears a handwritten note stating that it was “delivered to His Excellency the Minister the 19th of July 1939. His Excellency has also withheld the statement of the Committee [ha trattenuto anche l’esposto del Comitato].” See Ministero per gli Scambi e per le Valute, Letter to Federazione Nazionale Fascista dei Proprietari di Fabbricati, No. 57027/108: Compravendita di immobili all’estero, July 3, 1942, Demorazza b. 7, f. 24 (postponing decision on the matter pending resolution of judicial proceedings). Previous documents suggest this case involved a proposed sale by an Italian Jew to an Aryan buyer, both of them resident in Italy.

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Like the pension issue before them, the sale and donazione cases suggest the difficulty of containing the Race Laws in a single bureaucracy, separate from the mainstream of Italian law and administration. Problems like mortgages and usufrutti involved various parties – banks, charitable organizations, and various public entities – as well as the unfortunate Jews themselves, and required decisions by numerous agencies (the Ministry of Finance, the Education Ministry, even the office of currency exchange) as well as by the Demorazza bureaucracy. Each of these agencies faced a choice between ignoring or “massaging” existing precedents or else reconciling themselves to the prospect of evasion by the very people (i.e., wealthy or at least middle class Jews) the laws were intended to affect. While the majority of these conflicts were resolved against the Jewish parties, the speed and completeness of such resolution depended upon the specific ideological issues and institutional players at stake in each individual case. Although some decisions affected only Jews, others carried the potential for permanent distortion of Italian legal norms. Second, the transfer cases – like those involving supply contracts, domestici, and other issues – suggest the interplay of legislative and administrative action that are characteristic of the Race Laws. While certain issues were decided in the Jews’ favor, the overall pattern was of administrative extension of the laws to new areas that were either analogous to those covered by the legislation or simply involved activities that, by their size or public prominence, had attracted the attention of the Demorazza and other government agencies. At some point the law as written became less important than what both the government and the Jews themselves understood to be its purpose: exclusion of the Jews from Italian economic and social life, a purpose that was achieved with increasing thoroughness in each passing year.78 Finally, the transfer problem suggests the overall range and breadth of the Race Laws enforcement effort and the number of people involved, directly or indirectly, in it. In each city a lengthy list was prepared of Jewish-owned properties and of real or proposed transfers that might evade or impede the administration of the laws. These lists were based in part on the returns (denuncie) that Jews were required to file under the laws, but also received substantial 78

Together with the transfer and mortgage issues, there arose numerous mechanical problems under the real estate provisions, many of them having an implicit equity or fairness component. A frequent example involved divisions of property, whether between Jewish and non-Jewish co-owners or between the portion that could be retained by the Jewish owner (the so-called quota consentita) and that required to be sold. The valuation of Jewish property also remained a difficult issue throughout the Race Laws era. Despite repeated attempts to specify a uniform valuation method, controversies inevitably arose with respect to computation of the valuation formula; its fairness in particular cases; and the question of who, if anyone, had the authority to make these decisions. A particular area of contention concerned the impact of intervening changes in the real estate market on valuations that had been conducted using the mechanical system provided under the original statute, an issue which sometimes led to litigation. See Chapter Four.

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assistance from a bevy of non-Jewish informers, both individual and corporate. Denunciations were especially important with respect to evasive transactions.79 An unseemly number of public and private organizations likewise “volunteered” to assist in the administration of the antisemitic program and/or in the ownership and management of the newly confiscated Jewish property.80 This unhappy pattern was to continue after 1943, when full rather than partial confiscation of Jewish property and (eventually) the arrest and deportation of Jews themselves was at issue. In at least two cities, Turin and Trieste, the effort to denounce evaders began before the laws were even in effect. Trieste had for most of its recent history been part of Austria and had an unusually strong reputation, by Italian standards, for antisemitic feeling (it is no accident that Mussolini made his most prominent discourse on racial policy in the city). True to form, the prefect of the city wrote to the Demorazza on November 16, 1938, noting the increasing number of sales, transfers, and the like being undertaken by Jews in an effort to evade the Race Laws and citing the potentially negative effects of these efforts. The letter noted that, while the issues mentioned were of national dimension, “[they] have here a special character because of the notable density of the Jewish population.”81 Turin, a city with a more liberal tradition but also a strong Fascist movement – together with a disproportionate number of Jewish property owners – was if anything more assertive.82 Other cities, including some with relatively small Jewish populations, undertook similar efforts.83 These and other aspects of the local enforcement of the Race Laws are discussed further in Chapter Five. 79

80 81

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See Chapter Five. Reports of evasive transactions were sometimes presented “in bulk” by local prefects and sometimes regarded individual tips from paid or unpaid informers. For an example of the latter phenomenon, see Letter from Prefect of Rome to Demorazza, Prot. No. 16788: Angelo Cantoni fu Vittorio, israelita, Dec. 23, 1938, Demorazza b. 7, f. 24 (noting that “from a confidential source” it had become known that Cantoni had tried to evade the race laws by selling real estate to a company controlled by his Aryan son-in-law). A longer discussion of this phenomenon is found in Chapter Five. See Letter from Prefect of Trieste to Ministero dell’Interno, No. 0318–7301: Questione razziale, Trasferimenti propriet`a immobiliari, Nov. 16, 1938, Demorazza b. 7, f. 24., at 2. For the definitive work on the Jews of Trieste during the Fascist era, see Silva Bon, Gli ebrei a Trieste ` persecuzione, e risposte (Gorizia: Librerie Editrice Goriziana, 2000). 1930–45: identita, The efforts of one appellate judge to combat evasion in Turin are discussed further in Chapter Four. Turin was to diverge from Trieste and other cities in that several members of its judiciary undertook a substantial if not always successful effort to restrict the application of the racial laws. For a major work on Turin during the Race Laws period, emphasizing the day-to-day application of the racial provisions, see Fabio Levi, L’ebreo in oggetto: l’applicazione della normativa antiebraica a Torino 1938–1943 (Turin: S. Zamorani, 1991). See, e.g., Letter from Prefect of Mantova to Demorazza, Prot. No. 2520: Trasferimenti di immobili da israeliti ed altri, Dec. 7, 1938, Demorazza b. 7, f. 24 (describing large number of transfers made in anticipation of racial laws and failure of the then existing rules to prevent them).

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The Societa` Anonima Question: Jurisdictional Conflict, Public Opinion, and Emergence of the “Fairness” Issue One limitation of the real property and business rules is that they emphasized individuals rather than corporations, and – while prohibiting Jews from managing large or “vital” enterprises – did not include a rule attributing the assets of a corporation to its Jewish shareholders. As observed previously,84 this omission was not an oversight, but the outcome of lengthy and at times heated discussions between the Demorazza, the Ministry of Finance, and other affected agencies.85 Nevertheless, there was a logical inconsistency in a law that stripped street peddlers of their licenses while allowing the owners of large, internationally known corporations to escape without consequences. The law also presented substantial planning opportunities, since by the use of corporations Jews could hope to avoid, at least for a time, both the business and real property rules. The societa` anonima (corporation) problem expressed itself in two principal ways. The first involved corporations that were established with the specific purpose of evading the Race Law restrictions on the ownership of particular kinds of property (usually real estate) by individual Jews. Conceptually, these cases were a subdivision of the more general transfer problem, but raised special issues because of the stock ownership problem. A second issue involved corporations that were large or important enough to trigger the limitations on direct Jewish control – the so-called business as opposed to property limitations – but in which Aryan managers or directors were substituted for their Jewish predecessors, the latter maintaining an indirect role either through stock ownership or (it was alleged) by means of informal 84

85

See Chapter Two. The discussion in this chapter emphasizes the application of this rule to specific fact situations. Here, as elsewhere, many issues faced by the Demorazza parallel those in contemporary tax avoidance, where individuals often seek to avoid taxes by placing their assets in a corporation, which has a separate legal existence for tax and other purposes. To combat evasion the laws sometimes employs so-called “look-through” rules, i.e., rules attributing income or other tax attributes of a corporation directly to its shareholders, even though this is arguably inconsistent with the corporation’s separate existence. See, e.g., Internal Revenue Code sec. 951 et seq. (“subpart F rules”) (requiring inclusion of certain income of controlled foreign corporations for U.S. income tax purposes although the income is not distributed to shareholders). The failure to include such a rule was an important limitation of the Race Laws business provisions. The motives of the Race Laws draftsmen in rejecting a “look-through” rule have been the subject of scholarly debate. Some observers believe that the policy reflected a more general reluctance to take any action that would damage the Italian economy at a time of widespread deprivations resulting from economic sanctions and the economy’s general backward state. At least one author has suggested that these fears have been exaggerated, the danger of capital flight and other related problems having been dealt with effectively by other measures. See Ilaria Pavan: Tra indifferenze e oblio: le conseguenze economiche delle leggi razziali in Italia (Milan: Le Monnier, 2004), 77–84.

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control over the nominal corporate officials. This issue became increasingly important as the list of prohibited businesses was expanded, either by law or administrative fiat, until virtually all significant enterprises were off-limits to Italian Jews.86 Notwithstanding these problems – most of which appear to have been recognized from an early date – neither the laws nor the norme adopted a rule on passive stock ownership. Yet even this was not the last word on the subject. Thus a memorandum from the Demorazza director to the Interior Ministry in September 1939 continues to object to the certification of firms as “Aryan” despite the presence of Jewish stockholders, saying this approach was consistent with existing law but inconsistent with Demorazza practice, and asking that the matter be reexamined on the basis of this information.87 The issue continued to be discussed in later years but does not appear to have reached a satisfactory conclusion. If the finer points of Italian corporate law were hard for the Demorazza to accept, they were to prove even harder for the general population, which had predictable trouble understanding why the Jews – having been declared enemies of the Italian nation – continued to own significant chunks of its economy. A small army of delatori (informers) bombarded the agency with reports of Jews who were “evading” the business provisions by means of corporations and similar arrangements. These reports were particularly plentiful in cities like Rome or Turin that had a relatively large number of Jewish retail establishments: given the high visibility of this issue the reports appear to have been even more numerous than with respect to the real estate issue.88 The reports came from a variety of sources, including Fascist organizations, competitors, past or present employees, and ordinary citizens who noticed Jews conducting businesses that were (or were thought to be) prohibited under the laws. They reflect a strange mix of legal analysis and personal malice, balancing sophisticated descriptions of evasive transactions with a mock ironic tone expressing satisfaction that yet another Jewish trick has been uncovered and its perpetrator unmasked. Often, they misstate the law and confuse different, unrelated provisions of it. Many contrast the activities of Jewish speculators and profiteers, who were exempt from military services, with those of patriotic 86

87

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The Race Laws barred Jews from serving as owners or managers (proprietari o gestori) or in other management roles in any business that was either found to be interested in the national defense or else employed one hundred or more persons (Art. 10(c)). An additional rule barred Jews from employment in a variety of public or quasi-public [parastatali] entities or in businesses that were primarily dependent on such entities in order to achieve their business goals (Art. 13). See Chapter Two. Ministero dell’Interno, Direzione Generale per la Demografia e la Razza, Il Direttore Generale, Appunto per Il Sottosegretario di Stato, Sept. 14, 1939, Demorazza b. 11, f. 28. Certificates of Aryan status were required for companies performing public contracts. The most comprehensive treatment of the informers phenomenon is Mimmo Franzinelli, Delatori: spie e confidenti anonimi: l’arma segreta del regime fascista (Milan: Mondadori, 2001).

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Italians who were engaged in a difficult and painful war effort. Some list the author’s war record, party membership, and so forth as proof of their Fascist bona fides. A series of correspondences regarding two Roman Jewish families provides an instructive case in point. The first, the Coens, owned a wholesale clothing and fabric business in the capital while the second, the Castelnuovos, had more diverse interests in clothing, furniture, and household effects. To avoid or limit the application of the Race Laws, each transformed their businesses into one or more stock corporations, having primarily or exclusively Aryan boards of directors but retaining at least partial Jewish ownership and (or so it was said) continuing participation in the day-to-day management of the enterprises. The denunciations of this strategy came early and often – at least half a dozen for the two families combined – and from a variety of sources. Some of the reports were brief and offered simple, straightforward descriptions of the evasion phenomenon: In the “textile” sector the wholesale trade is almost totally owned by Jews and a good part of the retail. There are reports of a series of transformation that have taken place in the form of doing business by these firms and in the larger stores with the tendency to form themselves into stock corporations [societa` anonime], admitting Aryan elements in the boards of directors; among the most important transformations appear to be those of the Castelnuovo and Coen firms.89

Other letters, written by past or present employees or other mistakenly trusted individuals, provided detailed information regarding stock ownership, boards of directors, and similar items, although some of these details proved incorrect or exaggerated upon further examination.90 Still further letters were emotional or sarcastic in tone, punctuating their reports with italic or capitalized sections that asked how it was possible for Jews to retain such power and influence in a supposedly antisemitic country.91 Similar letters were 89

90

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Aziende commericali ebraiche di Roma, anonymous note in Demorazza files, dated Nov. 28, 1938, Demorazza b. 11, f. 28. It is not entirely clear whether this note is a denunciation from a single source or a composite of denunciations that was prepared by a public official; the absence of letterhead or other official markings suggests the former. See Letter to “illustrious gerarca [local party boss]” from Simoni Peraldo, Roma, Feb. 6, 1939, Demorazza b. 11, f. 28 (employee provides detailed information on transformation of Castelnuovo firms and alleges retaliation against Aryan employees); cf. Letter to His Excellency Achille Starace, Secretary of the P.N.F., Nov. 25, 1938, from the employees of the firm S.A.I.T.A. previously Coen, Demorazza b. 11, f. 28 (employees of Coen firm complain that transformation of business had taken place without their knowledge and express fears for their future there). A later police report cast doubt on some of Peraldo’s assertions, although the general information regarding the transformation of the Castelnuovo firms appears to have been correct. See Letter to Demorazza from Police Chief of Rome, Prot. No. 442/21626: Societ`a Anonima Castelnuovo e C. – Roma, Sept. 11, 1939, Demorazza b. 11, f. 28. See, e.g., “In the year 1940 Rome is a Jewish fiefdom [feudo ebraico],” anonymous and unsigned letter in Demorazza files, Demorazza b. 11, f. 28. The letter notes the “ABSOLUTE PREDOMINANCE OF THE JEWS IN THE COMMERCIAL TEXTILE AND MISCELLANEOUS

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written about other Roman businesses, especially in the retail sector.92 Even Jews themselves were not innocent of the phenomenon. A Jew in Bologna, while bemoaning his own suffering under the Race Laws, denounced a Jewish company for (in his view) abusing them.93 As in the case of property transfers, the efforts to identify “fictitious” corporations tended to become more systematic with the passage of time, with individual denunciations giving way to police or prefects’ reports and (in some cities) comprehensive lists of businesses said to be avoiding the Race Laws by one means or another. Local and national Fascist organizations frequently assisted in compiling these lists, which in the larger cities included dozens of

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CLOTHING FIELD” (capitalized in original) and lists the Coens and Castelnuovos among a large number of Jewish businesses that have evaded the Race Laws by one means or another. The letter lists what it says are the principal commercial streets of Rome, including such wellknown locales as Campo dei Fiori, Piazza Venezia, and Via del Tritone, and expresses outrage that these have become “infested” with Jewish merchants, asking “How was it possible to transfer all of this GHETTO to the best streets of Rome?” and suggesting the legal and business techniques it says were used to achieve this result. Ibid., 1. See, e.g., All’Onorevole Ministero dell’Interno [sic] – Direzione Generale della Razza [e] I Commissari dirigenti gli Uffici di P.S. di Porta Pia – S. Eustachio – Trionfale (anonymous and undated note received by Rome police department and a copy of which is attached to Letter from R. Questura di Roma to Demorazza and other public agencies, No. 073253 Cat. E.3, Soc. An. Coperfil, con sede in via del Paradiso n. 20, July 14, 1941, Demorazza b. 11, f. 28). The note cites one DiSegni Pacifico [sic], owner of three Roman gift and woolen goods shops, who it says had transferred ownership of the stores to two separate societa` anonime in anticipation of the racial laws. “We ask ourselves how and why,” the letter asks, “in the current historic and political moment, while the international Jewish gang arms the guns that kill our children and our brothers, the noted Jewish businessman and speculator Di Segni Pacifico is permitted to have in Rome, by means of fictitious stock corporations and eager [Aryan] name-lenders [compiacenti prestanomi], three shops for the wool and gift article trade at [addresses of the stores are omitted.]” The letter is significant for its criticism of Aryan collaborators and because its author apparently took the time to visit the Rome court house (Tribunale di Roma) in order to verify the transactions described in the letter. See Letter to Chief of Police and Party Secretary, undated and bearing unclear handwritten signature, received June 7, 1939, Demorazza b. 11, f. 28. Although hardly sympathetic from today’s viewpoint, the letter, written by a young professional from Bologna, captures the contradictory emotions of a Jew who has suffered under the Race Laws but still wishes to demonstrate his loyalty as an Italian citizen: “I am an Italian, I feel Italian, I have never loved and felt for anything except my beautiful Italian homeland . . . The struggle against the Jews completely overwhelms me: I discover that in fact I am Jewish and not Italian. The blow was great, I cried and became desperate . . . I look around . . . I see that those who do not have a liberal profession like me but are of my race, have recovered, are actually making out well, doing better than before. I refer to the industrialists. They have changed names and created stock corporations. A series of Aryans provides a cover [fa da copertina] for these gentlemen. . . . ” The letter then proceeds to denounce a Jewish pharmaceutical firm that it says has evaded the Race Laws in this manner. Ibid., 1–2.

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firms.94 In some cases, the same information bounced back and forth between police, prefects, and the Demorazza for an extended period, suggesting the large number of individuals involved in the enforcement effort but also a certain delay or confusion regarding administrative roles. Thus, the Coen transactions were reported to the Demorazza in letters from the Rome Prefect’s Office (prefettura) on December 20, 1938; again on June 8, 1939; and also appear in a longer letter from the Rome Police Chief to the Prefect’s Office and the national Public Security Administration in September 1940, which also made its way to the Demorazza in 1941.95 Newspapers picked up on similar reports and were themselves cited in letters from irate citizens, so that a sort of integrated legal, journalistic, and popular campaign against the Jews – even when they were within the letter of the 1938 law – began to take effect. Although such pressures did not always succeed in stamping out evasive tactics, they reduced the Jews’ room for maneuver which each passing year, and the information gathered was to prove invaluable when still more stringent measures were enacted under the German occupation. While meticulously gathering information about evasive techniques, official reports tended to adopt a more cautious tone than letters and newspaper articles, noting the importance of Jewish firms to the local economy and the technical difficulty of imposing a rule based on stock ownership or indirect participation in management. For example, a letter from the prefect of Alessandria, a medium-sized city in northwest Italy, cites with apparent favor a plan to replace the Jewish managers of a knitted goods firm with a combination of Aryan and discrimininati individuals, adding that “I believe it appropriate to inform you that the functioning of this company is not without importance for the economy of this city and particularly for the large amount of manpower employed [by them].”96 The letter does not suggest that there is to be any change in the ownership or day-to-day operation of the corporation. There is 94

95

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See Letter from Rome Police Chief to Ministero dell’Interno, Direzione Generale della Pubblica Sicurezza and Rome Prefect’s Office, No. 075444: Trasformazioni fittizie di Aziende ebraiche in ariane, Sept. 27, 1940, Demorazza b. 11, f. 28 (forwarding six pages of information regarding fictitious transformations of Jewish firms into nominally Aryan-controlled corporations, originally received from the Fascist Shopkeepers Union [Unione Fascista dei Commercianti] and other sources). A copy of the same letter was sent to the Demorazza in July 1941. See Letter to Demorazza from Prefect of Rome, Prot. No. 14338: Cessione Ditta Fratelli Coen, Dec. 20, 1938, Demorazza b. 11, f. 28; Letter to Demorazza from Prefect of Rome, Prot. No. 3156: S.A. Italiana Tessuti Abbigliamento Coen, June 8, 1939, Demorazza b. 11, f.8; Letter from Rome Police Chief to Ministero dell’Interno, Direzione Generale della Pubblica Sicurezza and Rome Prefect’s Office, No. 075444: Trasformazioni fittizie di Aziende ebraiche in ariane, Sept. 27, 1940, Demorazza b. 11, f. 28. See Letter to On. Ministero dell’Interno, Gabinetto, from Prefect of Alessandria, Prot. No. 5232, Societ`a SAVES – Nuovo Consiglio di Amministrazione composti di ariani, Dec. 5, 1938, Demorazza b. 11, f. 28. An unsigned memorandum in the Demorazza files addresses the issue of Jewish-owned textile firms more comprehensively, noting that “[t]hese firms are of great importance for the [military] supply industries and also for small retail customers, not only for their commercial and distribution function but also for their financial role, since the Jews

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also evidence that wealthy or powerful Fascists profited handsomely from the sale or reorganization of Jewish businesses, often taking over management or director positions vacated by the previous Jewish personnel, and were in no particular hurry to advocate a more stringent application of the laws. Indeed, the alleged leniency and corruption in the administration of the business provisions was a prominent theme of the newspaper reports, with articles and letters bearing headlines such as “Aryan masks on a Jewish face” and “How we should put a stop to the Jewish scheme in stock corporations.”97 These same allegations would give rise in 1940 to a more sustained journalistic campaign, suggesting that Italy was “losing” the war against the Jews and calling for new, more aggressive action to reverse this trend.98 The conflicting pressures with respect to Jewish businesses are captured in a police report regarding the situation in Ancona, a medium-sized industrial city on the Adriatic coast, written in October 1940. The report highlights the alleged dominance of the city by the Jews, who until 1938 represented “the controlling element [la parte dirigente] in all manifestations of city life” and were widely resented by the local population although the latter were powerless to correct the problem. But it also suggests the difficulties in correcting this problem, including the importance of the Jews in the textile and other sectors and the large number of Aryans who continue to be employed by Jewish firms. According to the report, these factors contributed to a slow, gradual application of the Race Laws notwithstanding an aggressive journalistic campaign and the absence of any particular weakness or sympathy on the part of those charged with administering the laws: The provisions called for by the press have suffered some delay, not because the Authorities delegated to [enforce] them demonstrated weakness or sympathy. The Authorities, worried perhaps about the imbalances [squilibri] that a hurried decision could have brought in the field of labor and employment, in order not to create temporary unemployment, have gradually applied the provisions of the Regime in this matter, not least that regarding the exile of various Jews from Ancona and the internment of others.99

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are predominantly cash purchasers and sellers on liberal, long-term credit.” The memorandum expresses fears regarding the economic consequences of a rapid sale or Government takeover of these enterprises, recommending instead the recapitalization of the firms with Aryans holding all or most of the voting stock. See “Promemoria,” undated and unsigned document in Demorazza files, Demorazza b. 11, f. 28. A handwritten notation indicates the document was reviewed by Antonio LePera, the Demorazza director during the relevant period. Gino Sottochiesa, “Aryan masks on a Jewish face: The lessons of the “Levi case” in Torino,” Demorazza b. 11., f. 28 (undated article contained in the Demorazza files); Gino Sottochiesa, “How we should put a stop to the Jewish scheme in stock corporations,” Il Tevere, Sept. 17, 1940, Demorazza b. 11, f. 28. This campaign is discussed in the following section. Letter from General Inspector for Public Security, Bologna, to Chief of Police, Rome, Prot. No. 795: Ancona – elemento ebraico, Oct. 6, 1940, Demorazza b. 11, f. 28, at 3.

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These conflicting institutional interests also reflected themselves in ongoing efforts to amend the laws so as to restrict the use of the societa` anonime as an evasion technique. One especially creative draft suggested that Jews not be permitted to exercise voting rights with respect to more than one-third of the shares in stock corporations, together with parallel limitations that would apply to a broader category of business enterprises.100 Another memorandum suggested that Jewish firms be recapitalized, with nonvoting stock assigned to the previous Jewish owners and preferred voting stock, together with management of the company, allocated to new Aryan investors.101 The Bank of Italy suggested that Jewish shares be entrusted to a specially formed credit institute with partial compensation to the Jewish owners.102 While a predictable response to the evasion problem, such efforts ran up against some of the same problems as the original laws, that is, the difficulty of gathering information on stock holdings, the persistence of interagency rivalries, and (perhaps) the fear that aggressive legislation would result in more economic and political problems than it was worth. To some extent the government fell victim to its own ideology: having exaggerated the Jewish role in the economy for propaganda purposes, it now nourished equally exaggerated fears of the economic effects of Jewish exclusion, which at least temporarily made it more difficult to enforce the antisemitic policy. The societa` anonima issue suggests the special difficulty of enforcing the Race Laws with respect to Jewish property and businesses, and constitutes perhaps the premier example of successful evasion during the pre-1943 era. Yet the reasons for this incomplete enforcement should be kept clearly in mind. They appear to relate, for the most part, to conflicting goals and bureaucratic infighting rather than to any particular sympathy for the Jewish owners or even a coherent argument for their exemption. In particular the clash between the Demorazza and the Finance and Corporations Ministries, which had competing institutional interests and (it would appear) different ideological perspectives, played an important role. The direction of change must also be taken into account: for all its limitations, the bureaucracy was by 1940–1 100

101

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See Text Proposed by Ministry of the Interior and Not Accepted by Ministry of Finance, Art. 11 and Art. 12, Demorazza b. 7., f. 28 (undated document contained in the Demorazza files). An additional handwritten note suggests that the document had been reviewed [riveduto] by the Ministry of Justice but does not say if it was approved. See “Promemoria,” undated and unsigned document in Demorazza files, Demorazza b. 11, f. 28. The stated goal of this proposal was to provide Aryan control of the relevant enterprises without causing excessive economic disturbance or involving the Government directly in ownership or management of the firms. The parallel to contemporary planning techniques, in which companies are frequently recapitalized for estate or tax planning reasons, is once again uncanny: with the obvious difference that (one hopes) the contemporary planning is conducted under somewhat less onerous conditions. Letter from Governor, Bank of Italy, to Count Paolo Thon di Revel, Ministry of Finance, December 6, 1938, ACS, MdF, SBE b. 18, f. 5.

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well on the trail of the remaining Jewish-owned businesses, with popular opinion pushing it toward more aggressive action even when the law as written was silent on the matter. It should further be remembered that the post-1943 rules, enacted during the German occupation but administered by an essentially Italian bureaucracy, confiscated all Jewish property and (to the extent successfully enforced) rendered previous protections effectively irrelevant.103 Notwithstanding its unusual character, the stock issue thus confirms rather than refuting the principal themes of this chapter: that the Race Laws were sometimes slowed down by internal conflicts but almost never by concern for Jewish victims, that they had a “penumbra” of administrative enforcement beyond their original terms, and that the trend was toward stricter rather than laxer enforcement with the passage of time. The issue of stock corporations also highlights the uneasy balance between legal and extra-legal mechanisms that characterized Fascist antisemitic policy. Even when the law was silent, popular opinion (or at least that portion which was publicly expressed) encouraged the bureaucracy to interpret the rules in an expansive way, and – when this was not possible – constituted an additional source of economic and psychological pressure on the Jews, so that in practice their situation was worse, not better, than would appear from reading the laws as written. This pattern – which appears to be typical of racial statutes in several countries – is one that we shall see again. Finally, the societa` anonima problem demonstrates the perverse effect of the Race Laws, which tended to be extremely effective when applied to poor or middle class persons but encountered greater difficulty with the relatively small number of wealthy Jews, whose assets could more easily be hidden, moved, or otherwise concealed from the authorities. This “vertical equity” issue – to use the modern parlance – was to become an increasing target for critics of the Race Laws and their enforcement, as observed in the ensuing sections.104 “Are We Losing The War On the Jews?”: Criticism of the Race Laws Bureaucracy and the Proposed 1940 Amendments The societa` anonima problem, and specifically the role of informers, highlight an unpleasant reality. While the Race Laws imposed a crushing burden upon the Jewish community – and while many Italians remained indifferent or even 103 104

See Chapter Six. The quintessential example of the victimization of poor Jews is the treatment of Jewish street peddlers (commercianti ambulanti), who were a significant feature of the Italian (and especially Roman) scene. Since such commerce required a public license, the revocation or suspension of licenses was sufficient to throw entire families into immediate destitution. National and local files are filled with references to the damage caused by the harsh enforcement of these provisions; letters from ordinary Italians (including some Jews) likewise ask why poor Jews are hit hard by the Race Laws while their wealthier co-religionists are able at least temporarily to evade them. See Chapter Five.

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at times sympathetic – for a small but vocal minority the laws did not go far enough. This was particularly true of the business provisions, which to some observers were too slow to be implemented and too easily and visibly avoided. The most dramatic expression of this sentiment was a series of articles appearing in the Roman newspaper Il Tevere, a notoriously antisemitic publication, under the provocative headline “Are we losing the war on the Jews?”105 While implicating the entire antisemitic program, the article focused special attention on the EGELI, the entity charged with implementation of the real estate provisions. According to the article, after two years of these laws, virtually none of the targeted property had been confiscated and the Jews continued to own substantial amounts of real estate, a result (or so the newspaper argued) of Jewish evasive tactics combined with rampant inefficiency and lack of enthusiasm in the administration of the program. The paper expressed similar criticisms of the policy regarding stock corporations. In order to correct this situation, the newspaper proposed rapid and strict corrective action.106 Such a direct attack could hardly go without a reply, and indeed the EGELI responded rather forcefully, blaming the delays on forces beyond its control and (more specifically) on the language of the original legislation, which it said created unrealistically slow procedures for the confiscation process. The agency even went so far as to propose corrective legislation, which it said would provide it with the necessary powers to proceed more effectively.107 Perhaps not surprisingly these new suggestions – like the Interior Ministry’s own proposals with respect to stock corporations – ran into problems of their own, provoking additional bureaucratic resistance and raising significant policy issues. Once again the Finance Ministry led the opposition, arguing that many of the proposals were inconsistent with the intent of the original Race Laws, while others would exceed the statutory authority of the EGELI or otherwise result in unnecessary legal or administrative difficulties.108 105

106 107

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Il Tevere, April 1940, copy in ACS, MdF, SBE b. 18, f. 12. Il Tevere, whose longtime publisher was Telesio Interlandi (see Chapter Two), functioned as a sort of quasi-official Party outlet, although its influence (like that of almost everything involving Fascist antisemitism) has been debated. See generally Meir Michaelis, “Mussolini’s unofficial mouthpiece: Telesio Interlandi – Il Tevere and the evolution of Mussolini’s anti-Semitism,” Journal of Modern Italian Studies 3:3 (1998), 217–40. Ibid., p. 1. See Ente di Gestione e Liquidazione Immobiliare (EGELI.) , Letter to His Excellency the Minister of Finance: Progetto di riforma alla legge N. 126 del 9.2.1939, June 6, 1940, ACS, MdF, SBE b. 18, f. 12, Pos. N.28/G.1. The two-page letter was accompanied by several pages of proposed changes, including legislative language and explanations, suggesting that the EGELI took the accusations seriously and put a high degree of effort into disproving or correcting them. Despite various changes in procedures, the EGELI appears to have continued moving slowly throughout the pre-1943 period, see I. Pavan, Tra indifferenza e oblio, pp. 140–6. See Ministero delle Finanze, Direzione Generale per il Coordinamento Tributario gli Affari Generali e il Personale, Ufficio Studi Legislativi, Memorandum to Ministero di Grazia e Giustizia, Prot. No. B. 17707, Progetto di riforma alla legge N. 126 del 9.2.1939, ACS, MdF, SBE b. 18, f. 12, Pos. N.28/G.1.

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The “Are we losing?” series and EGELI response suggest the interplay between legal and extra-legal forces in the enforcement of the Race Laws, together with the emerging gap between antisemitic ideologues and the more pragmatic bureaucracy charged with applying the laws. Rather than a simple clash between the Jews and the government, a multidimensional picture emerges, with propagandists, journalists, and some citizens urging tougher enforcement while portions of the bureaucracy exercised a restraining or at very least a retarding influence. The role of the Finance Ministry – previously observed in connection with the societa` anonima and donazione issues – is especially noteworthy here. Yet as in previous cases, the seeming frustration of the ideologues should not be taken as a sign of permanent defeat. Although the EGELI was never to become a model agency, it – along with other parts of the Race Laws bureaucracy – became increasingly assertive with the passage of time. The radicals’ real moment was to arrive with the onset of the German occupation and the Sal`o government, when the ideologues were finally put in charge of the antisemitic program and a more ruthless, German-style approach to property and other matters was adopted. Conclusion: Individuals, Institutions, and the Elusive but Persistent Question of National Differences Having observed the administration of the Race Laws in several contexts, it is possible to reach certain broad conclusions. As a general rule, the laws appear to have been enforced rather strictly, with a tendency to resolve all or most borderline cases against the Jews and, indeed, to extend the laws to a “penumbra” of cases not explicitly covered by the original statutory language – a tendency that accelerated with the passage of time. The principal exceptions to this rule regarded Jewish businesses and real property, and appear to have resulted from conflicting laws or policies and (especially) bureaucratic or “turf” disputes rather than any lack of enthusiasm for the laws or sympathy for their Jewish victims. The pension, donazioni, and societa` anonima cases are the most obvious examples of this phenomenon. This uneasy admixture of enforcement and evasion, in turn, produced considerable agitation among both Jewish and non-Jewish observers, but no immediate change in policy, although there was an overall trend toward harsher rather than laxer enforcement in all areas. Only with the Allied invasion and the onset of the German occupation in September 1943 was this uneasy balance overturned, in favor of substantially harsher measures in the occupied North and eventual repeal of the Race Laws in the liberated areas. The findings above provide little support for the “good Italian” myth or for the suggestion that Italians are inherently less antisemitic than their northern European brethren. Yet it would be a mistake to ignore national differences or assume that all racist or antisemitic legal regimes operate in an identical

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fashion. What is significant here is not so much the existence of differences between Italy and other countries, which are inevitably present, as the nature of these differences and the reason for their existence. Historical generalizations are always risky. But if one can be made, it would be this: that the differences between Italy and other countries appear to have been more institutional than attitudinal in nature, and to have resulted less from an inherently lower level of Italian antisemitism than from significant differences in the way the Italian and German (or other) governments organized and pursued their anti-Jewish campaigns. Of particular importance is the Italian failure to establish a single governmental or extra-governmental body, akin to the German SS, with a fanatical devotion to the antisemitic program and the authority to pursue that program regardless of, or with a uniformly higher priority than, competing goals.109 This point is particularly important when we consider the role of bureaucratic divisions and inertia in slowing down enforcement of the laws despite the absence of much demonstrable sympathy for the Jews, at least in the pre-1943 period. In this sense, the differences between Italian and German antisemitism parallel the more general differences between Nazism and Fascism: not a moral superiority on the Italian side, but a different model of the authoritarian state, with a somewhat less complete concentration of power and (arguably) a reduced willingness or ability to step outside pre-existing structures in order to achieve its goals. It is noteworthy in this respect that many of the same substantive issues which plagued the Race Laws (transfers of Jewish property, the use of stock corporations, etc.) appear to have existed in 1930s Germany, where the issues were not so much resolved as superseded by more direct legal and extra-legal measures – the former often following upon the latter – that rendered the earlier problems irrelevant.110 That these issues persisted in Italy is a sign, not of higher morality or even of lower bureaucratic efficiency, but of a more or less conscious choice as to the organization of the state and (perhaps) a somewhat lower priority assigned to antisemitism as opposed to other, competing priorities.111 109 110

111

A small Italian SS, reporting to German officers, was created during the German occupation. See, e.g., Saul Friedlander, Nazi Germany and the Jews: Vol. I, The Years of Persecution: 1933–1939 (New York: Harper Perennial, 1998), 280–93 (noting that Nazi regime moved for the complete liquidation of Jewish wealth and business enterprises, the expulsion of remaining Jews from German schools, and similar measures only after the November 1938 Kristallnacht pogrom). On the difference between German and Italian treatment of the Jews, emphasizing the behavior of Italian forces outside the country but with some references to internal events as well, see Jonathan Steinberg, All or Nothing: The Axis and the Holocaust 1941–1943 (London: Routledge, 1990). Not surprisingly, the conclusions herein reflect those of other, more comprehensive studies of Fascism in general. See, e.g., Alberto Aquarone, L’organizzazione dello stato totalitario (Turin: Einaudi, 1965); Sabino Cassese, Lo stato fascista (Bologna: Il Mulino, 2010); Lo stato fascista, ed. Marco Palla (Milan: La nuova Italia, 2001); Renzo De Felice, Mussolini il duce: Vol. 2: Lo stato totalitario (Turin: Einaudi, 1981). See also Renzo De Felice, Le interpretazioni del fascismo (Rome: Laterza, 1969); Emilio Gentile, Fascismo: storia e interpretazione

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The findings above are subject to several qualifications.112 The most important of these relate to time limitations and the difficulty/impossibility of predicting future events. The turn toward harsher enforcement of the leggi razziali after 1941, including the precettazione al lavoro (work brigades) and other policies, is well known. Michele Sarfatti has suggested that, had his regime not fallen, Mussolini may have been headed toward the internment and potential expulsion of all Italian Jews in the spring and summer of 1943, even without the German occupation113 It must be remembered, in this context, that it took Nazi Germany five years to move from initial anti-Jewish measures to Kristallnacht and another three years to all-out extermination: No one can say, with any certainty, that Italy would not have followed a similar path. Culture and religion, as well as institutional arrangements, remain important in determining the parameters of any racial program. Indeed, institutional arrangements are themselves an important aspect of national culture, albeit one that is arguably more mutable than attitudinal differences. A second qualification concerns the origins and behavior of the Demorazza and other agencies assigned responsibility for the application and enforcement of the Race Laws. I noted in Chapter One that the Demorazza was essentially Rome-based and, except at the very top, appears to have been staffed at least partially by career bureaucrats rather than people chosen for their ideological commitment to the antisemitic cause.114 However – and notwithstanding some excellent scholarship on particular aspects of Demorazza decision making – there is to my knowledge no full-length, comprehensive history of the agency.115

112

113

114 115

(Rome: Laterza, 2001). A good collection of Fascist documents, in English, is Jeffrey T. Schnapp, A Primer of Italian Fascism (Lincoln: University of Nebraska Press, 2000). It must be noted that not all of these works agree with the (necessarily brief and incomplete) analysis contained in this book, or for that matter with each other. But the composite character of Italian Fascism – in particular the persistence of the Church and monarchy as alternate sources of influence in the pre-1943 era – and the evolution of the regime in a generally harsher and more dictatorial direction with the passage of time, are common themes. The entire issue of German-Italian differences – not to mention the comparison to France, Hungary, and other nations with at least nominally independent antisemitic programs – is complex and fraught with difficulty. It can be especially difficult to separate the role of national stereotypes – German brutality, Italian inefficiency, etc. – from actual facts and events, all the more so since these stereotypes are frequently reflected in postwar representations and even in some scholarship This issue is discussed further in Chapter Seven. ` persecuzione, pp. 185–7. See Michele Sarfatti, Gli ebrei nell’Italia fascista: Vicende, identita, Whether the proposal for a “total mobilization” of Jewish labor would have proceeded as planned, and with what consequences for Italian Jews, is a matter of speculation. See Chapter One. A useful article on the Interior Ministry (including but not limited to the Demorazza) – rightly concluding that it enforced the laws severely in the great majority of cases – is Stefano Caviglia, “Un aspetto sconosciuto della persecuzione: l’antisemitismo “amminstrativo” del Ministero dell’Interno,” Rassegna Mensile di Israel, 1938: le leggi contro gli ebrei (1988) (Special Ed.) 233–74. The work of Aaron Gillette, although concerned primarily with ideology rather than practice, also provides numerous useful insights. See Aaron Gillette, “Guido Landra and the

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Further research on this issue would be extremely valuable in evaluating Italian behavior and the comparison with other countries. Finally (as always) is the need for further comparative work, in particular on the issue of Jewish property and businesses, to evaluate the differences between Italy, Germany, and other countries with respect to this issue. The role of institutional arrangements is of particular interest to lawyers, who have traditionally ascribed high importance to procedure and (to borrow an Anglo-Saxon parlance) pride themselves on having established governments of “laws and not men.” Yet the legal, procedurally correct nature of a racist system – while avoiding some short-term excesses of a full-blown criminal enterprise – may in the long run make the system stronger rather than weaker, giving it a legitimacy and predictability that make enforcement more consistent and injustices more difficult to correct. It is to this problem, and the response of Italian jurists to the Race Laws, that we now turn.

Office of Racial Studies in Fascist Italy,” Holocaust & Genocide Studies, 16(3) 357–75 (2002). Finally the better general histories of Jews under Fascism, notably that of Michele Sarfatti, include numerous discussions of Demorazza philosophy and decision making. Still, more detailed work on the agency would be a useful contribution.

4 Adjudication: Theory, Practice, and the Role of Judicial Personality

One of the key decisions taken by the Fascist government in 1938 was to place jurisdiction over the Race Laws in a series of special administrative bodies and to deny a right of appeal to the regular Italian courts, a decision which was extended and clarified in later amendments.1 This arrangement was not accidental: Although Fascist Italy was by no means a democracy, its courts contained many judges appointed prior to the Fascist era, and the judiciary could not yet be depended upon to pursue a consistent antisemitic policy.2 1

2

See Regio Decreto-Legge [RDL] 17 novembre 1938-XVII, n. 1728, Art. 26 (“The questions relative to the application of the present decree shall be resolved, case by case, by the Minister for the Interior, the interested ministries having an opportunity to be heard, and subject to the opinion of a Commission to be appointed by him. The provision is not subject to any appeal, either by administrative or judicial means [non e` soggetto ad alcun gravame, sia in via amministrativa, sia in via giurisdizionale]”). See Nuovo Dizionario Giuridico, ed. Federico del Giudice, 6th ed. (Naples: Esselibri, 2001), 674, 709 (definition of gravame). Following judicial decisions that asserted a broader judicial role in interpreting the Race Laws, it was provided still more explicitly that the Interior Minister was to have exclusive competence in any decision pertaining to race, specifically as to decisions regarding the Jewish or non-Jewish character of any individual (appartanenza alla razza ebraica), and that the decisions of the Ministry did not require explanation and were not appealable. The opinions of the Commission upon which the Ministry’s decisions were to be based were to be explained in writing, but these explanations were to remain secret. See Norme Integrative del R. decreto-legge 17 novembre 1938 (XVII n. 1728), July 13, 1939, XVII, n. 1024. Neither the original law nor the subsequent amendments prevented a large and growing jurisprudence on Race Laws issues, as described. The composition and operation of the race commission are discussed in Chapter Two. On the Fascist era judiciary, see generally Claudio Schwarzenberg, Diritto e giustizia nell’Italia fascista (Milan: Mursia, 1977); Antonella Meniconi, La “maschia avvocatura”: istituzioni e professione forense in epoca fascista (1922–1943) (Bologna: Il Mulino, 2006). A more focused but important source is Paolo Ungari, Alfredo Rocco e l’ideologia giuridico del fascismo (Brescia: Morcelliana, 1963). Legal philosophy and its relationship to the Race Laws are discussed further in Chapter One.

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Yet problems of interpretation could not be so easily contained. Collateral issues inevitably arose, as when workers fired because of the Race Laws sought pension and severance benefits, or when Jews were forced to sell property that served as security for a mortgage or other type of loan. There were also cases in which the Race Laws clashed with other legal rules or principles, such as the equal rights of citizens or the presumption against retroactive legislation. Finally, the issue of jurisdiction might itself give rise to litigation, with courts asserting the right to decide controversies that the bureaucracy preferred to keep inside its own walls. Any or all of these issues might wind up in the judicial system despite the government’s best efforts to contain them. Because the scope for judicial action was relatively narrow – and because the Government could effectively override unfavorable decisions by means of new legislation – the Italian courts played a relatively limited role in the long-term evolution of the Race Laws. Yet the judicial perspective remains historically significant, for the magistratura included a broader cross section of society than the Demorazza or other specialized bodies, and its decisions provide a unique insight into the attitude of ordinary Italians toward the Race Laws and their enforcement. Judicial decisions also constitute a fascinating case study in the power of legal institutions to restrain or restrict unjust legislation and, conversely, of the power of such legislation to confound or corrupt those institutions. Finally, the Italian judiciary – even more so than the bureaucracy – was to a large degree continuous after the war, so that the attitudes manifested by Fascist era judges were in many cases similar to those which found expression in the postwar world. By reconstructing the dilemma faced by Italian judges in applying the Race Laws, we can learn something about the more general nature of legal systems when confronted with evil, together with the unique and special features of the Italian response. This chapter considers the questions above, using as its principal texts the actual decisions of Italian courts which were called upon to interpret the Race Laws between 1938 and 1945.3 A particular emphasis is placed on the courts 3

In keeping with my focus on the period before September 8, 1943 (i.e., prior to the German occupation), most of the cases are from this period. I should note that several previous authors have conducted surveys of Race Laws jurisprudence, including at least two full-length volumes. Giuseppe Acerbi, Le leggi antiebraiche e razziali italiane ed it ceto dei giuristi (Milan: Giuffr`e Editore, 2011); Giuseppe Speciale, Giudici e razza nell’Italia fascista (Turin: G. Giappichelli, 2007). There are also several capable, briefer treatments, among the most significant of which are Guido Fubini, La condizione giuridica dell’ebraismo italiano (Turin: Rosenberg & Sellier, 1998), 63– 82; Salvatore Mazzamuto, Ebraismo e diritto dalla prima emancipazione all’eta` repubblicana, Storia d’Italia, Annali 11: Gli ebrei in Italia, ed. Corrado Vivanti, vol. II (Turin: Einaudi, 1997), 1767, 1786–94; and Maria Rosaria Lo Giudice, “Razza e giustizia nell’Italia fascista,” in Rivista di Storia Contemporanea (1983), 70–90, and a number of interesting collections, including Il diritto di fronte all’infamia nel diritto: a 70 anni dalle leggi razziali, eds. Loredana Garlati & Tiziana Vettor (Milan: Giuffre 2009) and Daniele Menozzi & Andrea Mariuzzo, A settant’anni dalle leggi razziali: Profili culturali, giuridici, e istituzionali dell’antisemitismo (Rome: Carocci,

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in Turin, a city of about 1 million inhabitants in northwest Italy, which had an unusually assertive judiciary together with a reasonably sized (approximately forty-three hundred in the 1938 census) Jewish community and accordingly gave rise to a disproportionate amount of litigation.4 By emphasizing this area I hope to examine the judicial process in more detail than would be possible at a national level and to consider the factors that made it possible for some judges to interpret the Race Laws in a manner that at least temporarily softened their impact on the Jewish victims.5 Where possible I have attempted to find decisions that – for reasons of geography, politics, or differences in legal theory – resolved similar issues in different or opposing ways. This section is thus less a survey of “typical” cases than a discussion of difficult or extraordinary decisions that raise the issue of the Race Laws and their place in Italian law most forcefully. Following the discussion of original documents above, I consider the broader lessons that may be gleaned from them. These include, in no particular order, the question of explanation (were the differences in judicial approaches the result of regional variations, political disagreements, or the personality of individual judges), implication (what can we learn from the Race Laws about the nature of the judicial function and the capacity of judges to restrain evil or unjust laws), and comparison (how did the Italian response differ from that of the German, French, and other judiciaries faced with similar legislation and

4

5

2010), 183–204. Finally, there are a number of interesting comparisons between racial regimes in Nazi Germany and Fascist Italy, see, e.g., Ernesto DeCristofaro, Codice della persecuzione: I giuristi e il razzismo nei regimi nazisti e fascista (Turin: G. Giappichelli, 2008) (emphasizing the role of legal theory); Le leggi della vergogna: norme contro gli ebrei in Italia e Germania, ed. Valerio DiPorto (Milan: Le Monnier, 2000) (comparison of statutes). While these authors consider a number of cases not discussed here, the larger themes that they identify, including the distinction between a more liberal approach frequently although not always identified with the Turin courts and a more conservative or state-oriented approach identified with other actors, are by and large consistent with those identified in this chapter. My own survey is based primarily on original research in the semiofficial legal reporters (primarily the Foro Italiano and the Giurisprudenza Italiana) of the period together with a smaller number of cases taken from secondary sources or institutional archives; reflecting my common law background I have discussed the facts and contexts of these cases in somewhat more detail, and provided somewhat more of my own analysis, than previous scholars. For a comprehensive study of the Race Laws in Turin, see L’ebreo in oggetto: l’applicazione della normativa antiebraica a Torino 1938–1943, ed. Fabio Levi (Turin: S. Zamorani, 1991). ` For a national overview, see Michele Sarfatti, Gli Ebrei nell’Italia fascista: Vicende, identita, persecuzione (Turin: Einaudi 2000). The emphasis on Turin carries the risk of overstating the degree of resistance or at least skepticism toward the Race Laws on the part of the Italian judiciary. I should accordingly restate, if it needs restating, that I am attempting to identify what I believe to be significant trends in Race Laws jurisprudence rather than provide a scientific evaluation of judicial attitudes which, given the relatively small number of decisions, is probably not possible in any case. I should add that the emphasis on Turin is perhaps less a matter of choice than necessity: a disproportionate number of cases originated in the city, probably reflecting the assertive nature of the Jewish community and the persistence of (relatively) liberal traditions in the city even during the Fascist era, see below.

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what do these differences, in turn, tell us about the answers to our first two questions). Where appropriate I will also consider how the resolution of the same issues differed among judicial, bureaucratic, and other actors. This organizational scheme means that certain interpretive issues, and several relevant secondary sources, will be postponed until we have had occasion to examine the primary evidence of the decisions themselves.6 The impatient reader is welcome to peek ahead, although my own view is that it is best to consider the original materials and only then proceed to the (inevitably more contentious) analysis. The Judicial Response: Strict Construction vs. Broader Legislative Purpose One Court, Two Approaches: Turin, 1938–9 The dilemma that the Race Laws posed to the Italian courts may be observed from a pair of documents produced by the same court, albeit different judges, within a six-month period in 1938–9 (i.e., the first year following promulgation of the laws). The first is a memorandum sent to the Ministry of Justice by presiding judge (primo president) Ricci of the Turin Court of Appeals on November 24, 1938, discussing the proliferation of techniques allegedly being used by Jews to evade the property restrictions of the Race Laws, and calling for immediate steps to restrain them. The second is the court’s decision in the case of Rosso c. Artom, Judge Peretti-Griva presiding, generally considered the most eloquent statement on behalf of a narrow, restrictive interpretation of the laws. By comparing the language and philosophy of these two documents, one can begin to understand the crisis provoked by the Race Laws, and the range of possible responses to it. The Ricci Memorandum: Prevention of Evasion and the Achieving the Intent of the Race Laws On November 24, 1938 – just as the relevant portions of the Race Laws were taking effect – presiding judge Ricci of the Turin Court of Appeals wrote a somewhat unusual letter to the Ministry of Justice in Rome. The purpose of the letter was to inform Ministry officials of various attempts at avoidance of the Race Law property restrictions on the part of Jewish citizens that, the judge believed, required immediate action by the executive if the laws were to have their intended effect. In particular, Judge Ricci was concerned about transfers of real property, subject to the Race Law restrictions on Jewish ownership, that might be difficult or impossible to undo once the laws were in

6

This organizational scheme also means that we will be considering judicial decisions on many subjects encountered in previous chapters. Administrative decisions on these subjects, and citations to relevant archives, are found in those chapters.

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effect. The introductory portion of the letter, translated into English, read as follows:7 I believe it my duty to bring to Your Excellency’s attention what has been orally referred to me by the President of the local Tribunale [trial court] in relation to the above-indicated subject of this letter, for whatever provisions you may in your wisdom consider useful to adopt, or for whatever proposals may seem to you appropriate regarding transitional rules to be included in the regulations concerning the Race Laws that are soon to be in effect. No sooner had one begin to hear of the restrictive dispositions that were to be adopted with respect to the Jews, and especially after notice of the statement of principles adopted by the Fascist Grand Council, than the Jews residing in this area began quickly to seek out strategies for avoiding or rendering inapplicable both the rules regarding industrial and commercial businesses and those regarding real property.

The letter then proceeded to describe three types of transactions by which the Jews were allegedly attempting to evade the laws, including substitution of Aryan for Jewish managers in corporations previously controlled by Jews;8 requests for relief from restraints on alienation of real property, with the evident intention of transferring the property to non-Jewish owners or dividing it into parcels sufficiently small to remain under Jewish ownership; and actual transfers of property to children or other family members, again with the intent of dividing it into parcels small enough to remain in Jewish hands under the laws. According to the letter, while the first of these ruses might be dealt with by political means (i.e., by placing pressure on the Aryan managers who had cooperated in making the transactions possible), the second and third required transitional provisions to prevent the evasive measures from becoming irreversible. The letter proceeded to suggest such provisions, proposing that gratuitous transfers of real property by Jews from September 1, 1938, be considered to be fraudulent (in frode della legge) and accordingly devoid of legal effect, with a similar rule for transfers of property subjected to liens (a titolo oneroso) in this period. Lest the reader think that Ricci was acting alone, the letter takes pains to indicate that the presiding judge of the Tribunale had done his best to prevent these techniques from succeeding, but in some cases had been unsuccessful, “and to these few cases there must be added all of those . . . for which the authorization of the Tribunale is not required.” Indeed, the original letter enclosed three lists, which I unfortunately have been unable to locate, of evasive transactions which had been presented to the Tribunale for its approval. 7

8

Letter from Corte d’Appello di Torino: Prima Presidenza to Sua Eccelenza il Ministro di Grazia e Giustizia, Prot No. 1727: Atti Compiuti da ebrei al fine di eludere le restrizioni di carattere patrimoniale delle leggi razziali, Nov. 24, 1938, Demorazza b. 7, f. 24. The Race Laws prohibited Jewish management of several categories of businesses, but did not include an equivalent rule for Jewish shareholders. See Chapter Three.

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The letter concludes with a further statement of the author’s responsibility in this matter: Of all this I have considered it my duty – as stated above – to inform Your Excellency, giving notice, because of the evident political repercussions that the indicated attempts at evasion have had, also to His Excellency the Prefect of this Province.

The Ricci letter is one of those rare documents that, after the passage of seventy years, is as fresh as one written yesterday morning. It is also a very difficult document to characterize. The letter is plainly unsympathetic to the Jewish parties and – if its recommendations were all carried out – the Race Laws would have been even harsher than they actually were. The emphasis is entirely on the evasive actions by the Jews and their collaborators, without the slightest sense of the injustice of the underlying provision. Yet, a number of more ambiguous features of the letter stand out. The first is its dry, technical tone, which seems more attuned to a corporate law seminar than a prelude to the European Holocaust. Indeed the techniques described in the letter, including the use of “dummy” corporations and the transfer of property in order to evade governmental restrictions, are strikingly similar to contemporary tax and corporate law planning strategies, notably those used to avoid the estate tax and other property levies. Even Judge Ricci’s proposed solution – to adopt a retroactive effective date barring evasive transactions from the time that the original law became known – is essentially the same that I used to use as a congressional staffer to prevent evasion of new restrictions in tax law. If one substituted the words “1986 Tax Reform Act” for “Italian Race Laws” and “Philadelphia” for “Turin,” not very much else would change. A second, equally ambiguous feature relates to Judge Ricci’s behavior. Although surely infelicitous in its context, that behavior seems unobjectionable and perhaps even admirable when evaluated from a purely legal viewpoint. A law has been duly proposed and enacted; that law is being evaded by deliberate and calculated means unanticipated by the draftsmen; a legal actor with knowledge of the evasion proposes steps to reduce or eliminate such activity in the future. In almost any other context, this would appear to us acceptable or even admirable behavior. Indeed, Ricci’s willingness to step out of his judicial role and propose amendments to the law, rather than permit continued avoidance or “strong arm” the law so as to achieve his desired result, would seem almost idealistic in most situations. It is also noteworthy that the letter contains no indication of overt antisemitism, although it does suggest that the Jews are being rather clever and manipulative in their strategies. Again, if the words tax evaders were substituted for Jews, and the forum shifted a few degrees in time and space, the letter might not read much differently. Finally, the Ricci letter demonstrates the cooperation between judicial and bureaucratic entities that was characteristic of the racial laws, and the difficulty of drawing a clear line between institutional entities in evaluating them.

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The Ricci letter, with its formal adherence to legal norms but seeming indifference to their human consequences, is typical of one judicial approach to the Race Laws, what the lawyer Guido Fubini has called the governmental orientation (orientamento governativo) as opposed to the liberal orientation of certain more progressive judges.9 This attitude, whose combination of legal rigor and moral blindness calls to mind the character Javert in Hugo’s Les Mis´erables, was perhaps the most common judicial approach to the race legislation. But it was not the only one, as the following decision makes clear. Rosso c. Artom: Derogation From General Principles and Need for “Strict Construction” If the Ricci letter stands for a more pro-government, unsympathetic interpretation of the Race Laws, the decision in Rosso c. Artom is its opposite.10 The case, decided by the Turin Court of Appeals on May 5, 1939, is indeed the principal statement of hostility or at the very least skepticism toward the Race Laws within the Italian legal system.11 As is so often the case for important decisions, the case arose from unusual factual circumstances. Artom, the Jewish party, owned real estate that was the subject of a joint tenancy (comunione ereditaria) under Italian law, the remaining interest in the tenancy being held by a non-Jewish person. In order to effect a dissolution of the joint tenancy, she requested that the property, which was not easily divisible, be sold and proceeds of the sale distributed among the parties. The question was whether this sale, or the part of it attributable to the Jewish tenant, was subject to the limitations on alienation of real property by Italian Jews contained in the Race Laws.12 If this were the case, the sale would require special approval from the appropriate administrative bodies, and the transaction contemplated by the parties could not proceed as scheduled. The court, with Judge Peretti-Griva presiding, held for Artom on all the relevant counts. The opinion began by stating the standard under which the Race Laws should be interpreted in the case of a potential conflict with other provisions of law. According to the court, the relevant portions of the Race Laws constituted restrictions on the juridical capacity of Italian citizens and, more specifically, were derogations from the principle of full civil and political rights for Italians of other than Catholic faith dating to 1848; as such the provisions, “notwithstanding their character as public law,” had to be strictly (i.e., narrowly) interpreted. Applying this methodology, the statutory language, which prohibited alienations of real property during the relevant period but did not mention sales in pursuit of the division of a joint tenancy – a situation 9 10 11 12

G. Fubini, La condizione giuridica dell’ebraismo italiano, 73. 64 Foro Italiano 915 (Corte d’Appello di Torino 1939). The question of the court and Judge Peretti-Griva’s attitude toward the laws, and whether it may justifiably be classified as a form of “resistance,” is discussed further in this chapter. See Chapter One.

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that was in any event substantially different from that of an ordinary sale – could not be extended to cover this latter case. The court added that, if the sale in question were prohibited, it would result in damage to the non-Jewish party who would be stuck in an indissoluble joint tenancy and receive no immediate financial benefit for their interest. In addition to the statutory interpretation issue, the court considered the question of jurisdiction, superficially its power to determine whether Artom (the nominally Jewish party) was indeed Jewish pursuant to the Race Laws. The statute appeared to restrict its authority in this matter, stating that the interpretation of the laws was to be within the exclusive jurisdiction of the Ministry of the Interior and that “the provision is not subject to any right of appeal either in an administrative or judicial manner” (non e´ soggetto ad alcun gravame sia in via amministrativa sia in via giurisdizionale). According to the court, in the absence of a clear statement to the contrary, this provision was to be interpreted as applying only to purely administrative decisions and not to those which had implications for the judicial capacity of citizens under civil law (“trattasi di deliberare sulla capacit`a giuridica dei cittadini ad ogni effetto di diritto civile”) as in this case.13 Indeed, the court subsequently proceeded to a de novo determination of Artom’s racial status, finding that – as the child of a mixed marriage who was baptized before the October 1, 1938, cutoff date – she was not Jewish under the Race Laws, in the first place. Rosso c. Artom is fascinating less for its holding, which is rather technical in nature, than for its style of reasoning, which is striking for a court in a totalitarian state. At no point does the court criticize the Race Laws or the Fascist government, either directly or indirectly. Yet the entire thrust of the case is to treat the Race Laws as a derogation from broader, more enduring principles of Italian law and to interpret them as narrowly as possible under the circumstances. This is most apparent in the first part of the decision, which states directly that the laws, being derogations from the judicial capacity of Italian citizens and specifically from those provisions granting civil rights to non-Catholics, ought to be subject to strictissimae interpretationis.14 A similar feel pervades the jurisdictional portion of the court’s opinion, which would limit the Demorazza to a relatively narrow category of cases, and even to the discussion of Artom’s racial status, which gives the maximum possible import to ecclesiastic actions and (by extension) the minimum possible capacity to state officials to interpret or overturn them. Indeed, the court seems almost anxious to reach these issues, several of which are not really necessary to resolve the controversy, and all of which are without exception decided against the state. In this respect, the decision is the logical opposite of the Ricci letter, using a 13 14

64 Foro Italiano at I, 919. Strict construction, in Latin or English, refers uniformly to narrow or restrictive rather than broad interpretation. Thus, a scholar who seeks a narrow interpretation of the U.S. Constitution is referred to as a “strict constructionist.” See Black’s Law Dictionary, 4th ed. (West, 1968).

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relatively technical case to make a judicial statement about the Race Laws and, wherever possible, to limit rather than increase their scope.15 Yet Rosso c. Artom – if admirable on many levels – is also problematic in several respects. By interpreting and applying the Race Laws, the Court implicitly accepts their legitimacy; its project, at least superficially, is to integrate the Race Laws while causing the least possible damage to the existing legal order, rather than to declare them fundamentally illegitimate or nonlegal in character.16 The arguments advanced tend to emphasize potential dangers of an adverse holding to non-Jewish parties or the legal system rather than to the Jewish community as a political or social entity. These may simply be clever argumentative strategies, and the overall direction of the opinion is clearly in favor of the Jewish litigant. But the tone remains respectful and even technical in nature, with the inevitable implication that – where no baptism or other “rescue” was effective – the laws would be applied as written. These comments are not intended to take anything away from the opinion or Judge Peretti-Griva’s courage in writing it. But they give an idea of the dilemma faced by judges in the Race Law cases, and the difficulty of restricting or limiting these rules without appearing to legitimize them and the underlying system that produced them.17 Finally, Rosso c. Artom gives a sense – if a potentially misleading one – of the differences between the Italian judiciary and that in other countries during the same era. It is difficult to picture a German court, perhaps even a French one, coming out with a similarly defiant opinion. Yet the difference arguably reflects institutional and “turf” battles more than a profound divergence in attitudes toward the Jews themselves, and (as we shall see) made relatively little difference to the victims in the long run.

15

16

17

The interpretation of Rosso c. Artom as a deliberate attempt to undermine the Race Laws – for whatever reason – is further supported by biographical sources regarding Judge Peretti-Griva, as we shall see. On a goal of statutory interpretation as the integration of new decisions with the minimum possible damage to the existing “web” of legal outcomes, see Dennis Patterson, Law and Truth (New York: Oxford University Press, 1996), 151–79, citing W. V. O. Quine, “Two Dogmas of Empiricism,” in From a Logical Point of View (Cambridge, MA: Harvard University Press, 1953), 10–46. The holding in Rosso c. Artom was partially overruled by subsequent legislation, which clarified that the Interior Ministry (i.e., the Demorazza) had exclusive jurisdiction to determine the status as a Jew (appartanenza alla razza ebraica) of any individual pursuant to the Race Laws. See note 1. However, this provision too was subject to substantial interpretation. See, e.g., Pennati c. Pettorelli Lalatta, 68 Foro Italiano I, 302 (Trib. Milano 1942) (holding that authority of Interior Ministry extends only to determination of membership in Jewish race and not to all of the resulting consequences of that determination); cf. Gottlieb, 95 Giurisprudenza Italiana 307 (1943) (question of membership in the Jewish race is within the exclusive competence of the Interior Ministry and may not be decided by the relevant professional commission). The response to Rosso c. Artom, and its critique by one well-known author, are discussed further in the text accompanying notes 89–91.

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Enforcement and Evasion Techniques: Turin and Beyond The Ricci letter and the holding in Rosso c. Artom may be said to define two poles in Race Laws jurisprudence, with most decisions falling somewhere along this continuum. Many of the same issues that are present in these documents are reflected in a subsequent line of cases concerning Jews who (unlike Artom) adopted more or less deliberate strategies for evading the property restrictions of the Race Laws, either by making transfers (donazioni) to other individuals or organizations or by adopting the form of a corporation (societa` anonima or societa` per azioni) in order to frustrate application of these rules. These are similar to the transactions Judge Ricci referred to, and indeed to those observed in previous chapters, although the results were not always those that he might have preferred. Among the earliest cases to arise was Levi c. Societa` focolari automatici impianti termici e Ditta Colombo, decided by the Court of Appeals of Milan in January 1942 and appealed to the Corte Suprema di Cassazione in Rome (i.e., the highest general appeals court) thirteen months later.18 Levi involved a merchant of furnaces (focolari), previously operating as a sole proprietorship, who had incorporated his business apparently with the intention of evading Race Law restrictions on conduct of specified businesses by Jews, which were under consideration although not yet in effect at the time.19 In pursuance of this plan, Levi had assigned various property to the corporation (SAFAIT) together with several contracts with the Colombo firm for the supply of heating-related goods and services. The law as written prohibited Jews from occupying certain management positions, but did not reach corporations merely by virtue of Jewish ownership.20 The issue in the case was the validity of this arrangement. The Cassazione refused to accept the validity of the corporate structure, which it held to be a simulazione, that is, the use of a legal form for improper purposes and hence unrecognizable under Italian law.21 According to the court, Levi’s intent to evade the Race Laws could be demonstrated even though the laws were not yet in effect at the time of the arrangement, and even though there was normally a presumption against the simulazione concept being applied to the advantage of a party (Colombo) who had participated in the relevant transaction. Nor was the normal respect accorded to the corporate form applicable when the corporation had been created for an illicit purpose in the first place. According to the court’s opinion, “this thesis [i.e., the distinction between a corporation and its individual owners] rests exclusively on the legitimacy of the goals of the corporation” (questa tesi poggia esclusivamante sulla liceit`a 18 19 20 21

Levi c. Societa` focolari automatici impianti termici e Ditta Colombo, 65 Foro Italiano I, 550 (Corte Suprema di Cassazione 1942). Regio Decreto-Legge 17 novembre 1938-XVII, n. 1728, Art. 10(c). See Chapter Two. See Nuovo Dizionario Giuridico, ed. Federico del Giudice, 6th ed. (Naples: Esselibri, 2001), 1286–7. The simulazione issue was first raised on appeal.

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dei fini della societ`a anonima), and could not be ascribed to an entity formed with the deliberate intention of evading a provision of public law.22 Levi serves as an interesting counterpoint to Artom, involving a very different view of the Race Laws and their relationship to the broader legal system. While Artom took pains to justify a narrow interpretation of the Race Laws, Levi seemed anxious to expand them to cases arguably not covered by the literal language of the laws but which were (in the court’s judgment) inconsistent with its spirit. Indeed the court’s willingness to apply the simulazione concept – an independent legal doctrine which was subject to various interpretations and was not even raised in the lower courts – showed a readiness to fill gaps in the statute in a way not contemplated even by the Ricci letter, which sought governmental action precisely to avoid the need for such aggressive judicial positions. It must be conceded that Levi involved rather different facts (i.e., a deliberate evasion rather than a collateral consequence) and was decided at a different time and in a different city than Artom; these facts as much as judicial philosophy may account for the difference in outcomes. But the difference in approaches is striking. What is frightening about Levi is that – from a purely legal standpoint – it appears difficult to condemn it. That a private party should be able to avoid the intended effect of a statute by creating an essentially fictitious corporation, with no purpose other than the evasion of the law, would seem to be at war with the most elementary conceptions of statutory interpretation and the judicial role. Indeed, were we dealing with, for example, tax evasion rather than the Italian Race Laws, Levi might well stand as a more convincing and admirable decision than Artom or the other cases that were held in favor of the Jewish litigants. One of the most celebrated U.S. tax cases, decided in roughly the same era as Levi, contains strikingly similar language about the corporate form and the implied necessity of a legitimate business purpose for adopting it.23 Like the Ricci letter once again, Levi illustrates the perverse world of racial statutes, in which assertive, purpose-oriented interpretation seems cruel and unjustified and a rather narrow, hyper-technical reading of the statute strikes us, with the perspective of two generations, as both fair and responsible. A similar process of technically competent but morally insensitive jurisprudence may be observed in Polli c. Gugenheim, decided by the Tribunale di Genova (Genoa) in 1941 and subsequently affirmed by the Genoa Court of 22

23

65 Foro Italiano at I, 552. It is unclear whether Levi ended the use of corporations as a technique for avoiding the Race Laws or (more likely) only in those cases of which administrators were aware. This is especially true as the decision came relatively late (1942) and more stringent anti-Jewish measures were adopted after 1943. See Chapter Two. Gregory v. Helvering, 293 U.S. 465 (1935). Interestingly, Levi – a judicial opinion – takes a harsher attitude toward the corporations problem than the Finance Ministry and other administrative agencies; see Chapter Three. A generic approach, under which the bureaucracy is seen as inherently harsher in its interpretation of the Race Laws and the judiciary as inherently more lenient, is accordingly difficult to maintain.

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Appeals (1942) and the Cassazione Civile (1943).24 Gugenheim involved a Jewish husband who had transferred real property to his wife, a non-Jew, in June 1939. Italian law dating to the Roman era prohibited such inter vivos transfers between spouses, apparently for fear that they would be used as a debt-evasion mechanism. The Race Laws restricted the amount of real property that could remain in Jewish hands but included an exception which allowed Jews to transfer real property to non-Jewish spouses or descendants rather than sell it to the government liquidation agency (EGELI) as was the usual procedure in such cases.25 The question was whether this exception applied in cases where the real property in question was less than the amount permitted to remain in Jewish hands under the statute (the so-called quota consentita) and thus would not have been subject to transfer to EGELI in any case. All three courts that heard the case decided against Gugenheim, for essentially the same reasons. According to the courts, the legislative purpose (ratio legis) was to create a limited exception from the rule prohibiting inter vivos transfers, to be applied in cases where the property would in the absence of the transfer have eventually been sold to the EGELI and thus been outside the Jewish owner’s possession (and also his creditors’ reach) in any case. There was accordingly no reason to apply the rule in cases where the property remained subject to the owner’s control. This legislative purpose was sufficient to outweigh the apparent meaning of the statutory language, which referred simply to real property transfers and did not distinguish between the portion of property permitted to remain in Jewish hands and the portion (the so-called quota eccidente) required to be transferred to the EGELI. The rule prohibiting inter vivos transfers was furthermore a long-standing principle of Italian law that should take precedence in a conflict with the narrower, more limited Race Laws. The Court of Appeals added, without apparent irony, that an opposite holding would give Jewish owners an advantage over non-Jewish citizens, since the former would be permitted alienations of property prohibited for their compatriots. Gugenheim differs from Levi, although it has faint echoes of Artom, in that it involves the rights of a third party (Gugenheim’s creditors) as well as a conflict between Jewish citizens and the Italian state. But the decision turns Artom on its head. Where Artom had cited the illiberal or discriminatory purpose of the Race Laws as a reason to interpret them narrowly, Gugenheim used the same purpose as a reason to expand them, apparently never considering the possibility that it was the Race Laws themselves, rather than the statutory exceptions to them, which ought to be strictly construed. The decision also does not consider, or willfully ignores, the real-world effect on the Jewish 24

25

Polli c. Gugenheim e Lottero, 66 Foro Italiano I, 1072 (Tribunale di Genova 1941), aff’d sub nom Gugenheim c. Polli , 67 Foro Italiano I, 95 (Corte d’Appello di Genova 1942), aff’d 68 Foro Italiano I, 383 (Corte Suprema di Cassazione 1943). See Chapter Three.

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owners, who might find it difficult to transfer only a portion of the affected real estate, or the possibility that the Race Laws might be amended to apply a more restrictive limitation or even full expropriation of Jewish property – exactly what happened in the later, post-1943 period.26 Taken together, Artom, Levi, and Gugenheim exemplify the different approaches taken by Italian judges to the Race Laws, but also the difficulty of “situating” these approaches as a matter of legal theory. The range of interpretive methods (literal, purposive, etc.) appears to be similar in all cases, and all seem to agree that the Race Laws – if a legitimately enacted part of Italian law – are in some sense a derogation from broader, preexisting legal principles. Yet the conclusions that different judges draw from these methodologies are vastly different in form and content, and in many cases not particularly sympathetic to the Jewish litigants or their problems. It may be that the answer lies in the judges’ personal or political outlooks rather than their judicial philosophies, a possibility we shall consider in some detail later in the chapter. Geography and timing also play an important, if not easily definable, role. But the limitations of legal theory as a tool for restricting unjust outcomes – indeed, the seeming capacity of such theory to rationalize good and bad results with more or less equal effectiveness – is already apparent. As time went on, these limitations would only become more visible. The Race Laws Meet the Labor Laws: The Pensione Decisions The transfer cases, involving intentional or effective evasions of the Race Laws, were in many ways atypical. But the dilemma that they posed was reflected in numerous other cases. These included cases involving direct conflict between the Race Laws and other provisions (matrimonial law, property law, etc.), jurisdictional disputes between the Demorazza and other courts or agencies, and an additional category involving what might be called collateral consequences, such as whether and to what extent employees fired pursuant to the Race Laws were entitled to pension and severance payments (pensioni) under 26

Not all decisions involving property transfers were decided in as clear-cut a manner as the cases above. Consider, for example, Catella c. Raudino, decided by the Turin Court of Appeals on July 28 1943, i.e., three days after Mussolini was overthrown in Rome but before the armistice with the Allies and almost two years before the Race Laws, at least in northern Italy, would cease to be effective. Catella was a suit for compensation due to a mediator who had negotiated a sale of real estate by an Italian stock corporation (societa` per azioni) several of whose shareholders, but not managers, were Jewish under the Race Laws. The defense argued, inter alia, that the sale was prohibited by the Race Laws because of the Jewish character of the corporation. The court disagreed, noting that the language of the Race Laws did not extend to societa` per azioni even if all of the stock was controlled by Jews, and refrained (without further discussion) from extending the law beyond its stated terms. Catella is an unusual case, both because of its timing and because it involved primarily a collateral issue rather than the application of the Race Laws themselves; but it demonstrates that Italian courts were anything but consistent in applying a purposive as opposed to literal interpretation of the property rules.

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Italian law. As might be expected, a majority of these cases were ultimately decided against the Jewish parties. But a surprising number were held in their favor, and the cases (like those described above) display an eclectic mix of legal and policy arguments rather than a uniform pattern of racist or antisemitic rhetoric. Among the more interesting if depressing examples of “collateral” jurisprudence are the so-called pensioni cases. As described in previous chapters, the Race Laws prohibited Jews from working for public and quasi-public (parastatali) entities; for a variety of specifically named industries, and for still other private firms that relied upon direct or indirect governmental support, a concept defined so broadly that it eventually included almost any large industrial enterprise.27 Many were summarily fired. Under their employment contracts and generally applicable provisions of Italian law, most of these employees were entitled to pensions or severance pay upon the termination of employment, with an exception being provided if the firing resulted from improper or unsatisfactory behavior by the employee – what we would probably call dismissal for cause. The Race Laws themselves provided for pensions to be paid to the dismissed employees under seemingly reasonable terms, but did not address various interpretive issues, including the treatment of foreign Jews or Jews who were dismissed at their employers’ discretion although this was not required by the literal language of the law.28 The laws also did not address the question of jurisdiction, that is, who would have the right to decide cases about pension rights of dismissed Jewish employees, in the first place. Not surprisingly, these matters were often the subject of litigation in Italian courts, requiring the courts both to resolve specific issues and to state some general principles for approaching the laws. Perhaps the best known of the pensioni cases is Falco c. Banco di Napoli, decided by the Consiglio di Stato in July 1941.29 Falco was a Jew who had been dismissed from employment with the Bank of Naples pursuant to the Race Laws. When denied the pension to which he was otherwise entitled upon dismissal, he sued. The bank argued that the court had no jurisdiction over the case since, according to the terms of the Race Laws, questions arising under the laws were subject to exclusive jurisdiction of the Interior Ministry (i.e., Demorazza) without right of appeal.30 In the alternative, the bank argued that 27 28

29

30

Regio Decreto-Legge 17 novembre 1938-XVII, n. 1728, Art. 13. Ibid., Art. 21, 22. The issues discussed in this chapter are generally distinct from the computational matters resolved in the legislative or regulatory processes described in Chapters Two and Three. Falco c. Banco di Napoli, 66 Foro Italiano III, 249 (Consiglio di Stato 1941). The Consiglio di Stato, which parallels the French Conseil d’Etat, is the highest court for administrative matters. Because of its role in protecting citizens from excesses of government power, it was perhaps more solicitous of Jewish claims than other Italian courts. The Corte dei Conti is the highest court for pensions, public expenditures, and various other matters. See note 1 and the accompanying next.

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the case should have been heard by the Corte dei Conti, which tended to take a more pro-government stance.31 The court, in a strongly worded opinion, held that it had jurisdiction to hear the case. Using language reminiscent of Rosso c. Artom, the court said that “the appeal to judicial organs constitutes a fundamental guarantee granted by the legal order to every subject of law . . . the rules which deny the judicial [power] should, consequently, be interpreted with special caution” (il ricorso agli organi giurisdizionali costituisce garanzia fondamentale concessa dall’ordinamento giuridico a ogni soggetto di diritto . . . le norme che negano il giudice vanno, conseguentemente, interpretate con speciale cautela).32 Interpreting the statute in this light, it was apparent that the Interior Ministry (Demorazza) was intended to have exclusive jurisdiction only over the determination of “who is a Jew” which was the central issue of the Race Laws, and not over further consequences (consequenze ulteriori) that might arise indirectly from them. “We would otherwise arrive,” said the court, “at the absurd result that the Interior Minister could decide ad libitum, without any procedural guarantee and without possibility of subsequent judicial control, civil controversies in the matter, for example, of the nullification of mar` of riage, of the denial of rights [privazione], of family law [patria podesta], ownership of real estate, and so forth, as well as controversies of a criminal nature, relating to various criminal acts contemplated by the racial laws.”33 The reported decision was accompanied by a note apparently written by Prof. A. C. Jemolo, which emphasized the parallels with Artom and questioned the legality of various attempts, made after Artom was decided, to restrict the courts’ jurisdiction with respect to specific issues arising under the Race Laws.34 The courts’ jurisdiction in pension cases was further vindicated by the Corte di Cassazione in Moscati c. Cassa depositi e prestiti, decided later in 1942.35 Moscati had been dismissed from employment as a schoolteacher and sued for her pension rights. The Corte dei Conti held that the issue was under the exclusive jurisdiction of the Interior Ministry and dismissed the case. According to the Corte dei Conti, given the “predominantly political purpose and character” (scopo ed impronta prevalentemente politica) of the Race Laws, a judicial organ would be poorly equipped to substitute its judgment for that of a political 31 32 33 34

35

See note 36 and accompanying text. 66 Foro Italiano at III, 251. Ibid., III, 251. Ibid., III, 250 n. 1. The note appears as a footnote following the heading and capsule description of the case and is signed with the initials A.C.J. which are Jemolo’s personal initials. The same author wrote a more detailed critique of a parallel decision, see note 36. Jemolo’s approach to the Race Laws, and its place in his broader philosophy, is discussed further below. Moscati c. Cassa depositi e prestiti, 67 Foro Italiano I, 817 (Corte Suprema di Cassazione 1942), rev’g 66 Foro Italiano III, 92 (Corte dei Conti 1941). The Corte di Cassazione is the highest general appellate court.

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body on such matters. The Cassazione disagreed, holding that the Interior Ministry’s exclusive jurisdiction extended only to issues that were relevant to the specific political purpose of the legislation and not to the economic or other consequences that arose indirectly from it. The Corte dei Conti decision was accompanied by a more extensive note by Prof. Jemolo, which posited the right to judicial appeal as a central aspect of the Italian judicial system and argued that derogations from this right ought to be made only upon clear indication of a contrary legislative will – probably the most forceful critique of the Race Laws after Artom itself.36 The jurisdictional issue having been settled, the courts proceeded to decide a number of pension-related cases, so that they eventually constituted one of the most common subjects of Race Laws jurisprudence.37 While these cases were frequently technical in nature, they are noteworthy both for their logic and their holdings, often at least superficially favorable to the Jewish litigants. Redounding particularly to the Jews’ advantage was the notion of the “political” purpose of the Race Laws, which several courts contrasted with the “economic” issues at stake in pension litigation. Thus, in its 1942 decision in Cons. agr. prov. Vercelli c. DeBenedetti,38 the Cassazione referred to the legislative purpose of the employment restriction, “which is not based on hostility to workers, but is designed to eliminate the danger of eugenic disturbances to the Italian race” (che non e` in odio al personale, ma e` diretto ad eliminare pericoli di perturbazioni eugenetiche nella razza italiana) and that accordingly should be interpreted so as to preserve rights that normally adhere to those dismissed from employment.39 The court held that employees of quasi-public entities, who were dismissed from employment by reason of their race, were entitled to ` and payments to compensate both seniority payments (indennita` di anzianita) for dismissal without adequate notice (indennita` di preavviso), together with a relatively favorable method of computing these amounts. Similarly in the case of Societa` Vigano´ c. Gasviner, the Cassazione stated that “the race law, which is inspired solely by political ends, could not interfere with (non puo´ incidere su) economic relationships” such as pension rights that were held by employees involuntarily dismissed from service under existing Italian law.40 The court affirmed a decision of the Rome Court of Appeals, holding that severance payments (indennita` di licenziamento) were due to foreign Jews who were required 36

37 38 39 40

Note, “Su una pretesa privazione di giurisdizione” [“On an alleged denial of jurisdiction”], 66 Foro Italiano III, 92 n. 1 (1941). The Falco case was decided after the Corte dei Conti opinion but before the Cassazione’s decision in Moscati. The impact of Jemolo’s comments is difficult to evaluate although the Cassazione appears to have followed several of his arguments. Jemolo’s role and philosophy are discussed further in this chapter. Some of these cases were decided before Falco and Moscati, but simply assumed the courts had jurisdiction to decide the relevant issues. 68 Foro Italiano I, 83 (Corte Suprema di Cassazione 1942). Ibid., I, 85. 65 Foro Italiano I, 1217, 1218 (Corte Suprema di Cassazione 1940).

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to leave the country under terms of the Race Laws, although the treatment of such workers was not addressed by the statutory language.41 A parallel if somewhat ironic theme was the lack of individual culpability on the part of Jewish employees, with the Race Law–related firings often being compared (for employment law purposes) to involuntary changes affecting the employee’s status rather than to voluntary departures or dismissals resulting from malfeasance of the person in question. The Cassazione’s opinion in Gasviner is perhaps most explicit, analogizing the Race Laws dismissals to cases involving the death of the employee or the bankruptcy of the employer, situations which likewise did not involve discretionary firings by the employer but in which pension rights were protected by Italian law. The Tribunale decision in the same case featured a longer list of analogies, including death or illness of the employee, the military draft, and so forth. More or less similar references are found in other cases. It should be noted that – while sometimes protecting pension rights of Jews who were dismissed from employment – the courts did little to relax the severity of the dismissals themselves. Thus the Turin Court of Appeals, in its decision in DeBenedetti, affirmed a private employer’s right to dismiss even those Jews who were not required to be fired under the statutory language, so long as the Jews received the same pensions as would be paid to an Aryan dismissed under similar circumstances.42 The Cassazione in Goldstaub v. Societa` anonima infortuni stated the same point, adding that the individual in question (a Jew who had received discriminato status) would be entitled to the lower pension attributable to an ordinary dismissal rather than the somewhat higher pension paid following a dismissal under terms of the Race Laws.43 While lacking the drama of the transfer cases, the pensioni decisions thus reflect a similar kind of ambivalence. Once again courts enforced the Race Laws without any obvious sympathy for the Jewish victims. But they seem to have recognized that the laws were in some sense a derogation from the preexisting legal order and – especially where their own jurisdiction was at stake – attempted to interpret them in a manner that caused minimal damage to established legal norms. Put more bluntly, the courts combined a rather admirable concern for law and legal principles with an equally pronounced indifference to the real-world, human implications of the Race Laws. Particularly interesting is the courts’ distinction between individual Jews, who are described as lacking in culpability and entitled to fair if not advantageous treatment, and Jews as a 41 42

43

Based on the lower court opinion, the holding appears to apply to old-age severance payments but not those relating to failure of notice. The Court of Appeals decision is noted at 65 Foro Italiano I, 599 (1939). The Cassazione held that DeBenedetti was employed by a quasi-public entity (ente parastatale) and thus subject to an obligatory dismissal. It should be noted that the Court of Appeals holding would have narrowed the group of employees subject to obligatory dismissal and thus would have potentially benefitted other Jewish employees, although not helping DeBenedetti herself. Goldstaub v. Societa` anonima infortuni, 66 Foro Italiano I, 672 (Corte di Cassazione 1941).

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group, who are to be removed from society to ensure the “eugenic” protection of the Italian race. This curious dichotomy, which appears to have sources in traditional Catholic attitudes that predate the Fascist period,44 provided judges with a means to reconcile the widespread inequity of the Race Laws with the perceived need to do justice in individual cases. It is a dichotomy that shows up repeatedly in historical accounts of the Race Laws, and we shall have occasion to revisit it in later chapters.45 44 45

See Chapter One. The jurisdictional issues arising in the pension area find a parallel in cases dealing with real estate valuations by the Corporation for Real Estate Management and Liquidation (EGELI), which was responsible for administering the partial confiscation of Jewish property during the Race Laws era. Under the laws, Jews were permitted to own land having an aggregate assessed value (estimo) of not more than 5,000 lire together with urban buildings having a taxable value (imponibile) of not more than 20,000 lire, real estate in excess of these amounts (the so-called quota eccidente) being required to be sold to the EGELI for eventual transfer to non-Jewish owners. RDL 17 novembre 1938-XVII, n. 1728, Art. 10(d), (e). The Jewish owners, in turn, were to be compensated under a formula that emphasized the use of long-term, low-interest bonds rather than immediate cash payments. The valuation process was conducted, in the first instance, by the local tax offices (ufficio tecnico erariale) based on a rather mechanical formula of 80 times estimo for land and 20 times imponibile for urban buildings. If these figures did not reflect economic reality, an appeal was permitted to one of the several regional commissions established for this purpose, which was to proceed to a direct estimate of the value of the property based on the median of prices of the past five years reduced by a factor of 20 percent. The property owner might also appeal to the regional commissions regarding the choice of property to be included in the quota eccidente; the divisibility or indivisibility of particular property; the computation of the 80 and 20 percent formulas, and various ancillary issues. RDL 9 febbraio 1939-XVII, n. 126, Arts. 20, 23–31. While most of these issues were resolved at the administrative level, litigation inevitably arose concerning some of these matters and the courts’ jurisdiction to resolve them. A representative if not necessarily typical case was EGELI c. Morpurgo, 67 Foro Italiano I, 536 (1942), decided by the Cassazione in April 1942. Morpurgo involved a property owner who challenged a mechanical valuation by the EGELI and asked the Provincial Commission (in this case, Gorizia) to undertake a direct estimate of the property’s value. The Commission undertook a revaluation of the property, which among other factors took into account the existence of an easement ` that tended to reduce the value of the property remaining in Morpurgo’s hands and (servitu) increase the value of the property being transferred to the EGELI. The Commission also ordered the required sum to be paid in cash by the EGELI instead of the long-term bonds specified by the statute, and issued an additional order regarding the future legal relationship between the retained and transferred properties. The Cassazione held that the revaluation was within the Commission’s jurisdiction, the regional commissions having authority to consider all relevant factors and not merely challenges to the application of mechanical formulae by the tax office. However, the court found that the Commission had exceeded its authority by ordering a cash payment and by purporting to regulate the future relationship between the properties, decisions which were not delegated by the statute and (in any case invaded a function normally reserved for the regular judiciary. Reflecting a somewhat less sympathetic attitude was Sinigaglia c. EGELI, 68 Foro Italiano I, 577 (1943) which reached the Cassazione in February 1943. Like Morpurgo, Sinigaglia involved a request for a revised estimate by a Provincial Commission, but which a different Commission (Bologna) had rejected because of the failure to identify specific errors in the

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Conflict of Laws and the Special Role of the Church: The Judicial Application of the Mixed Marriage Provisions The pensioni and transfer decisions each involved what might be called collateral consequences of the Race Laws, that is, situations that were either unforeseen or incompletely foreseen by the draftsmen but which were caused, directly or indirectly, by the existence of the laws. A more clear-cut conflict of laws issue was presented by the mixed marriage provisions. As suggested in Chapter Two, the mixed marriage issue was from the beginning the touchiest under the Race Laws, because authority over marriage was shared with the Roman Catholic Church under the 1929 Lateran Treaties and because baptized Jews and their children, although in many cases Jewish under the Race Laws, remained full-fledged Catholics in the eyes of the Church.46 There was accordingly a substantial number of potential marriages that were permitted by the Church but prohibited by Italian law. Although many or even most such cases were dealt with at the administrative level, a not insignificant number made it to the courts. Judicial issues also arose with respect to interreligious or religiously ambiguous marriages conducted outside of Italy, which posed a conflict between the Race Laws and obligations undertaken by the Italian State under international law. An interesting if quirky example of the mixed marriage problem is the case of Valabrega & Cerruti, decided by the Tribunale of Turin in May 1940.47

46 47

original, mechanical calculation – i.e., the opposite of the Morpurgo approach. Citing its own jurisdictional limitations, the Cassazione upheld the decision. The real estate cases, like so many under the Race Laws, are difficult to characterize. As in the pensioni decisions, there is plainly some respect for the idea of procedural fairness, as seen, for example, in Morpurgo’s insistence that all relevant factors be included in the valuation process. The willingness to assert jurisdiction in such cases (with the notable exception of Sinigaglia), together with the insistence on at least superficially correct procedures, has faint echoes of Artom, Falco, and similar decisions. Yet the courts seem more interested in technical accuracy than the fate of Jewish owners, who are being stripped of their property and sometimes livelihood in return for plainly inadequate compensation. Once again it is difficult to escape an impression of studied indifference: the courts intervene where a broader legal principle is at stake, or (perhaps) to prevent a manifest and easily avoidable injustice, but do little or nothing to challenge the overall structure of the racial program. Even the concern for procedure seems weirdly out of place under the circumstances, as if the courts were dealing with voluntary transactions rather than a systematic confiscation program. It should be remembered that, while the law at this point required only a forced partial sale of Jewish real property, the records established during this process facilitated the total confiscation of Jewish property undertaken during the Sal`o period (see Chapter Six). See Chapter Two. Imp. Valabrega & Cerruti, 66 Foro Italiano II, 62 (Tribunale di Torino 1940), aff’d 66 Foro Italiano II, 149 (Corte d’Appello di Torino 1941). The “Imp.” notation stands for imputati and indicates a criminal case. The case and the controversy it created are discussed at some length in Silvia Falconieri, Consensi e rimozioni: la dottrina giuridica italiana e la legislazione razziale fascista in D. Menozzi and A. Mariuzzo eds., A settant’anni dalle leggi razziali, 183–204 (2010). 183, 193–8.

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Valabrega and Cerruti had been married in June 1939, in contravention of the Race Laws, since he (Valabrega) was Jewish and she (Cerruti) was an Aryan under the laws. When subjected to criminal prosecution the couple interposed, as a defense, the existence of a national amnesty granted in February 1940 which allegedly covered their case. According to the couple, the marriage act – while concededly illegal when undertaken – was an instantaneous act (reato instantaneo) that had already been completed prior to 1940 and hence was subject to the amnesty provision. The state argued that the marriage was an ongoing criminal act (reato permanente) that continued even after the date of the amnesty and hence could not be absolved by it. Cerruti was pregnant at the time of the decision and, as the court tartly observed, might become so again. The court, Judge Pratis presiding, held in favor of the defendants, finding the marriage act to have been instantaneous in nature and hence susceptible to the subsequent amnesty provision. According to the court, for a criminal act to be continuing rather than instantaneous in nature, the act and not merely its consequences must be of an ongoing nature and the guilty party must have the legal capacity to terminate the behavior in question without necessity of reciprocal action by other parties. Neither of these was true in the instant case, since the couple’s cohabitation was not an independent legal act but merely “the effect of the effect” of the original marriage, and as a Catholic marriage was in any case indissoluble under then existing Italian law.48 The court further cited the precedent of bigamy which – although plainly contrary to law – had generally been considered an instantaneous act by previous courts and commentators. The Turin Court of Appeals affirmed in an opinion of January 21, 1941 (Judge Manzoni presiding), reiterating the bigamy parallel and stating that the criminal act committed by the couple “had exhaust[ed] itself with the celebration of the marriage” (si consuma colla celebrazione di matrimonio) although its effects might continue for an indefinite period.49 An article by Prof. Domenico Rende, published together with the Tribunale decision, disagreed with the court’s decision, stating that bigamy was in his view “100 percent permanent” and that marriages forbidden by the Race Laws should be treated in a similar manner. Professor Rende added that the policy of the Race Laws was to protect “the integrity of the race” and the production of children and grandchildren resulting from a mixed marriage constituted an ongoing violation of this interest.50 48 49 50

There was no legal divorce in Italy until the 1970s. 66 Foro Italiano at II, 149. Note, “Se il matrimonio di cittadino ariano con persona non ariana costituisca reato istantaneo o permanente,” [“If the marriage of an Aryan citizen with a non-Aryan constitutes an instantaneous or permanent offense,”] 66 Foro Italiano II, 62 (1940). Prof. Rende’s opinion was not merely academic in nature as he was also a presiding judge of the Corte di Cassazione (the highest general appeals court) at that time. Some of the intensity of his case note may be

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The ambiguities of the mixed marriage provisions are similarly observed in the case of Goranic c. Vatta, decided by the Trieste Court of Appeals in February 1942 and upheld by the Cassazione the following year.51 Goranic was a Croatian Jewish woman who had married Vatta, an Aryan Italian, in Italy in 1931, that is, before the promulgation of the Race Laws. At the time of the wedding, Austrian law prohibited marriages between Jews and Christians but Italian law permitted them. Vatta sued to have the marriage annulled, arguing that Goranic lacked capacity under Austrian law to enter into the marriage and, alternatively, that the Race Laws should be applied retroactively so as to expunge the marriage. The trial court held the marriage invalid, and Goranic appealed. The Court of Appeals reversed and held the marriage valid under Italian law. According to the court, under the 1902 Hague Convention, the capacity to marry was to be determined according to the law of the marriage site rather than that the country of origin. Since Italian law in 1931 permitted interreligious marriages, the Austrian law was not relevant to the case. The court further refused to apply the Italian Race Laws to the case at hand, citing “the fundamental legal principle of the non-retroactivity of law” and the resulting need for an express statement, together with appropriate transitional provisions, if this principle were to be overridden.52 The Cassazione affirmed in a decision of May 19, 1943, agreeing with the Court of Appeals that the Race Laws affected existing personal and family relationships “but not to the point of absorbing validly established facts and the legal rights associated with them” (non fino al punto da assorbire i fatti validamente compiuti ed i diritti che vi si ricollegano).53

51 52

53

gleaned from his description of Valabrega and Cerruti’s marriage as “a madamato [i.e., the African mistress of an Italian colonialist] with the appearance of legality” and worthy of no greater legal status. Goranic c. Vatta, 68 Foro Italiano I, 290 (Corte d’Appello di Trieste 1942), aff’d, 68 Foro Italiano I, 930 (Corte Suprema di Cassazione 1943). 68 Foro Italiano at I, 292. Interestingly, the opinion suggests that the prosecutor (pubblico ministero) agreed that the Tribunale should be reversed, although presumably the husband (Vatta) did not agree. 68 Foro Italiano at 931. Also involving a conflict between Italian and foreign law, although this time in a business context, was Harth c. Ditta Villain e Fassio, 66 Foro Italiano I, 795 (Tribunale di Trieste 1941). Harth involved a dispute over control of property that had been originally held by a Rumanian citizen, which had been subject to a forced sale in Austria following German occupation of that country in 1938, but at the time of the decision was situated in Italy. Citing the 1905 Hague Treaty and general principles of international law, the court held that the Jewish owner (Harth) retained his rights over the property, the German order transferring control and appointing a receiver for the property lacking legal effect in Italy and the principle of reciprocity requiring that Harth, a Rumanian citizen, be treated in the same manner as would an Italian citizen in that country. Harth is not strictly speaking a Race Laws case, involving the impact of German rather than Italian law; but it indicates a similar reluctance to override established principles of international law even in cases involving Jewish property.

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Valabrega & Cerruti and Goranic c. Vatta are interesting examples of the conflicts between the Race Laws and the main body of Italian jurisprudence, especially with regard to the mixed marriage provisions. Both cases are held in favor of the Jewish litigant(s), and (in Valabrega & Cerruti especially) the court makes a fairly aggressive interpretation in order to reach it. Many observers, together with Prof. Rende, would probably regard a marriage as an ongoing act, and it seems unlikely the authors of the amnesty in question intended to cover this case. Goranic c. Vatta is similarly forceful in rejecting the idea of retroactive application of the Race Laws or the application of non-Italian law (even if consistent with Italian policy) to a domestic case. But it is hard to know how much to make of these cases. Valabrega & Cerruti concerns a Catholic marriage, albeit one involving a racially Jewish partner, and is decided on the basis of a rather arcane point of law rather than a generally restrictive interpretation of the racial provisions. It is thus hard to be sure whether we are dealing with a genuine dispute about the Race Laws or with a technical issue that happens to affect the outcome of a Race Laws case.54 Goranic is similarly quirky in nature, and the rather unsympathetic position of Vatta, who was attempting to escape a ten-year marriage in a country with no legal divorce, likewise make it hard to draw general conclusions from the case. It is perhaps noteworthy that the first (although not second) of these decisions was produced by the Turin judiciary, although there are too few reported cases to establish a definite pattern. One striking aspect of Valabrega & Cerruti and Goranic c. Vatta is the degree to which the Race Laws became part of the normal texture of Italian law almost immediately upon their enactment. Although both cases are ultimately decided in favor of a “narrow” or “restrictive” interpretation of the Race Laws, the methodologies applied in interpreting the laws appear to be similar to those that would be used for other provisions. Clashes between the Race Laws and other legal rules are decided using the same essential tools – the importance of the provision, the order of legislation, the location of the relevant activity – that would apply in other conflict of law cases. Indeed the further one reads, the more the laws appear mundane or even predictable in their application, the courts demonstrating neither an aggressive zeal to expand them or – with the probable exception of the Turin court in Rosso c. Artom – a particular enthusiasm for restricting their influence. Of course, this lack of enthusiasm is itself significant: as scholars like Ingo Muller and Richard Weisberg have pointed out, the courts in Germany and later France appear to have exhibited greater alacrity in expanding or extending the sweep 54

Pointing somewhat in the direction of the former thesis (i.e., a restrictive interpretation of the Race Laws) is the court’s insistence that criminal provisions be interpreted according to their literal terms “whatever may be the reason for a rule or the goal that the legislator set out to achieve with it” (qualunque sia la ragione di una norma o il fine che con essa il legislatore si e` prefisso di raggiungere); 46 Foro Italiano at II, 66.

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of antisemitic legislation.55 In this admittedly somber competition, the Italian courts, by their very lack of creativity, may actually come out ahead. Yet it is hard to escape that the judiciary, together with many Italians, viewed the Race Laws as an occasion for neither great celebration or particular anger: but rather, as simply a part of the natural order of things. Finally, it is worth repeating that – to the extent that there was a special solicitude for the mixed marriage cases – it appears to have resulted primarily from a concern for church–state and (to a lesser degree) foreign policy considerations rather than concern for individual litigants. The pattern observed in Chapter One, in which the Race Laws faced resistance to the extent that they stepped on Catholic toes but relative acquiescence in stepping on Jewish ones, thus largely repeats itself at the judicial level. This resistance is by no means insignificant, but it remains highly selective in nature, and raises the question why – if resistance was indeed legally feasible – it was not extended to a broader category of victims.56 55

56

See Ingo Muller, Hitler’s Justice: The Courts of the Third Reich (Cambridge, MA: Harvard University Press, 1991); Richard H. Weisberg, Vichy Law and the Holocaust in France (London: Routledge, 1996). Muller finds – notwithstanding postwar efforts at rationalization – that German courts and judges were frequently ahead of Nazi antisemitic policies, for example refusing to approve interreligious marriage even before they were legally forbidden and imposing draconian sentences for trivial violations of the Nuremberg laws. Weisberg’s analysis is even more disturbing: far from weakening German laws he finds that French jurists and administrators frequently strengthened them, a behavior he attributes in varying measure to the “dessicated Cartesianism” of French legal thought in the period but also to a particular view of the Jews, who were seen as Talmudic masters who would take advantage of any available leeway in order to avoid the intended effect of the laws. By contrast, one of the frustrating aspects of the Italian Race Laws is that they did such extensive damage to the Jewish community even in the absence of a specifically anti-Jewish interpretive theory on the part of most relevant actors and notwithstanding active skepticism toward the laws by a small but vocal minority of judges: the overt prejudice described by Muller and Weisberg thus appears to be an important but perhaps not a necessary condition for racial laws to be effective. A similar example of church–state conflict is Ric. P.M. c. Brezovsek e Rudez, 68 Foro Italiano II, 142 (Corte di Cassazione 1942). Brezovsek involved a couple, the husband of Yugoslav origin, who wished to be married but had not obtained the necessary certification from the Interior Ministry under the racial laws. The couple were married in a Trieste church in 1940 but (according to the opinion) intended to give their marriage canonical but not civil effect, the marriage having been subsequently reported to the civil authorities only because of an error by the local priest. Upon report of the marriage, the husband was charged with criminal violation of the Race Laws. The court accepted the erroneous transmission theory and dismissed the criminal complaint. Brezovsek, like Valabrega & Cerrutti, accepts an arguably dubious legal theory in order to avoid punishing an already married couple for undertaking the marriage. In this respect it constitutes a further restrictive interpretation of the Race Laws in the mixed marriage area. Yet here again, a Catholic marriage, already completed and sanctified, is at stake: indeed it is unclear from the opinion if the husband or wife were actually Jewish or had merely failed to provide adequate documentation in order to negate this possibility. The case may thus be better categorized as a further example of deference to Catholic religious authority, rather than as an extension of grace or clemency to Italian Jews.

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Borderline Cases and the Problem of Legislative Purpose Together with issues involving conflict of laws or collateral consequences, the courts decided a number of cases that were more “internal” to the Race Laws, that is, where the issue was the interpretation of the Race Laws themselves rather than their relationship to some other legal provision. Because of the narrow jurisdiction afforded the courts in Race Laws matters, these cases are relatively rare, most such issues being decided by the Demorazza or other administrative agencies.57 When such cases did arise, they tended to be decided against Jewish litigants, with the legislative purpose or intention of the laws sometimes being cited as a reason for extending the meaning of the statute beyond its stated terms. An interesting if unhappy example of this tendency is the Jona case, decided by the Consiglio di Stato in July 1940.58 Jona involved an officer in the Italian army who was dismissed from his position as a result of the Race Laws. The officer argued that he was exempt from dismissal because he had received discriminato (i.e., exempt) status under the laws.59 The basis for this argument was a declaration of the Fascist Grand Council, dated October 6, 1938, which indicated that military service was prohibited only for Jews who lacked such status, together with the original decree law (decreto-legge) of November 7, 1938, which suggested the same result.60 The appellant argued that subsequent legislation, which required the dismissal of all Jews regardless of discriminato status, was inconsistent with these precedents and hence invalid. According to the appellant the law of November 1938, being fundamental for the race policy, had a constitutional character and thus could not be modified by ordinary legislation. The court rejected these arguments and upheld the dismissal. According to the court, the declarations of the Grand Council had value as general principles which could be invoked in doubtful cases or in the absence of positive legal norms, but could not serve to override express and contrary legal provisions

57 58 59 60

For additional decisions regarding the mixed marriage provisions, see Imp. Picciulin, 47 Foro Italiano II, 40 (Pretura di Gorizia 1941) (only couple, and not person performing the ceremony, subject to penalty if they celebrate marriage of an Italian and a foreign citizen without first receiving racial certification from the Interior Ministry); Pennati c. Pettorelli Lalatta, 48 Foro Italiano I, 301 (Tribunale di Milano 1942) (process of annulment of the transcription of an interracial marriage must be suspended by the courts until the Interior Ministry has ruled on a challenge regarding the racial status of one of the couple’s parents). See note 1 and the accompanying text. Jona c. Ministero della Guerra, 66 Foro Italiano III, 18 (Consiglio di Stato 1940). See Chapter One. A decreto-legge is a provision initially adopted by governmental decree, which becomes permanent upon ratification by the legislature as an ordinary statute. The practice appears to have been especially common in the Fascist era. The Grand Council, although originally a party rather than a state body, assumed important legislative functions during the Fascist era, although its actions still required ratification by the (by now largely rubber-stamp) parliament.

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(“hanno soltanto valore di principio . . . , invocabili nei casi di dubbi ed in mancanza di norme di diritto positivo che, nelle specie, invece, esistono”).61 The 1938 act further lacked the requisite declaration to attain constitutional status and was thus capable of modification by subsequent legislation. The court added that, in cases where the government had intended to maintain a distinction between discriminati and remaining Jews – for example, in the case of real property limitations and conduct of certain professions – it had explicitly stated so in the relevant legislative provisions. Noting the dearth of judicial precedent on these issues, the opinion included an extensive footnote regarding scholarly opinions with respect to both of these interpretive questions.62 Jona was a literal-minded decision which applied the Race Laws with neither sympathy nor interpretive flair. A willingness to extend the laws beyond their literal terms may be observed in Invernizzi, originating in Rimini and decided by the Cassazione in July 1942.63 Invernizzi involved a boarding house (pensione) that hired three Aryan domestics to meet the needs of forty Jewish children and their Jewish governess (istitutrice), for which services the boarding house was paid on a monthly basis. The boarding house owner was not Jewish. The law stated that “those belonging to the Jewish race may not have as [subordinate] employees [alle proprie dipendenze], in the role of domestics, Italian citizens of the Aryan race.” Since the domestics were employed by the Aryan boarding house owner, rather than the Jewish boarders, the literal language of the law appeared to be satisfied. The Cassazione upheld the Rimini trial court and found the defendants guilty of a violation of the Race Laws. Citing the lower court, the court stated that the 61 62

63

66 Foro Italiano at III, 20. Ibid., 19 notes 1–3. Similar to Jona was Drapschind c. Provincia Apuania, 68 Foro Italiano I, 932 (Corte di Cassazione 1943). Drapschind involved a foreign Jew who qualified to remain in Italy under a limited exception, contained in the November 1938 law, pertaining to Jews who were over 65 years of age or married to Italian citizens as of October 1 of that year. (The remainder of the foreign Jews had at least in theory been expelled from the country altogether.) The appellant argued that the failure to make any mention of foreigners in the laws regulating exercise of professions by Italian Jews (June 29, 1939) created an implication that those Jews who had been permitted to remain in the country were free to exercise their professions on the same basis as Jews who were exempt under other provisions. The court rejected this argument, holding that the permission to remain in the country constituted a limited exception for residence purposes only that did not extend to the right to conduct a professional activity nor to parity with Jewish citizens who were permitted to conduct such activity under separate legal provisions (“riservava ad essi un trattamentto pi`u favorevole, ristretto alla residenza, che non si estendeva al diitto di svolgere la loro attivit`a professionale, neppure a parit`a con i cittadini di razza ebraica che, in virt`u di altre succesive disposizioni di carattere ugualmente eccezionale, potevano esercitare sotto determinate condizioni la loro professione”). Ibid., 932. The court backed its holding with the general observation, arguably inconsistent with Jona, that subsequent racial provisions “assumed (presupponeva) the provisions already adopted with respect to foreign Jews with the fundamental law of 1938,” and had to be interpreted in the light of those earlier provisions. Ric. Invernizzi, 68 Foro Italiano II, 25 (Corte Suprema di Cassazione 1942).

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underlying policy of the law was to protect Aryan employees from serving in a subordinate relationship to Jews (“una subordinazione . . . di cittadini italiani di razza ariana ad appartenenti alla razza ebraica”) in the domestic context.64 This being the legislative purpose, the absence of a formal employment relationship between the Jewish boarders and the Aryan domestics was not determinative. The court further argued that the boarding house situation was distinct from that of an ordinary hotel because of the more continuous, intimate relationship that the former implies; in contrast to a hotel, at which the clients regularly come and go, a boarding house domestic would thus find herself “continuously subject” (continuamente sottoposto) to the demands of the Jewish clients and hence in violation of the Race Laws. The court added, in a footnote, that an opposite holding would as a practical matter lead to relatively easy evasion (elusione) of the provision in question, by the mere stratagem of having a nonJew serve as the official employer of individuals in practice subject to Jewish control.65 Jona and Invernizzi are significant in that they involve the interpretation of the Race Laws in a context by and large independent of the offsetting factors – corporate or business law, church–state relations, etc. – seen in the mixed marriage and transfer cases. When these ancillary factors were absent, the courts appear to have demonstrated somewhat less sympathy for the Jewish litigants, and indeed to have been willing to make either rather strict, literal readings of the laws (as in Jona), or else fairly expansive legislative purpose arguments (as in Invernizzi), in support of holdings against them. Invernizzi, with its suggestion of Aryan supremacy as the underlying purpose of the Race Laws, is particularly striking in this regard. These results suggest that the favorable holdings in other cases were more likely the result of competing legal and philosophical considerations than a reflection of truly systematic dislike for the Race Laws or empathy for their Jewish victims. To be sure, the number of cases here is small, and the conclusions necessarily tentative; but the evidence that does exist points clearly in this direction. One case that did demonstrate a somewhat higher degree of sympathy for Jewish litigants, together with a tendency toward a narrower, more literal reading of the Race Laws, was Martinotti c. Segre, which was decided – perhaps not surprisingly – by the Tribunale of Turin in 1939.66 Segre concerned a partnership (associazione) between a Jewish and a non-Jewish professional that was 64

65 66

Ibid., 25. One of the difficulties with the Invernizzi case is that the Italian word dipendenza can be interpreted as referring to a relationship of dependence or subordination, on the one hand, or an employment relationship, on the other, according to the circumstances in question. In this case, the statutory meaning would appear to be closer to “employment” but is read by the court to mean something closer to “subordination,” at least where domestics are concerned. See Harper Collins Sansoni, Italian Unabridged Dictionary (London: Collins Reference, 1981), 1544. 68 Foro Italiano at II, 25 n. 1. Martinotti c. Segre, 65 Foro Italiano I, 447 (Tribunale di Torino 1939).

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dissolved pursuant to the Race Laws in August 1939.67 The issue related to the division of the partnership property. The non-Jewish partner (Martinotti) argued that he should be allowed to continue the business in his individual capacity, since a liquidation would be prejudicial to his interests and inconsistent with the spirit of the Race Laws which were directed exclusively against Jews. The Jewish partner (Segre) argued that the business should be liquidated and the proceeds distributed between the former partners on a proportionate basis. The court, Judge Villari presiding, rejected Martinotti’s argument and held that the business should be liquidated. According to the court, the Race Laws were motivated by important public policy concerns but did not envision the protection (tutela) of private interests. Moreover the laws – while barring professional collaboration between Jews and Aryans – did not address the issue of property rights upon dissolution of such a partnership, which were accordingly to be addressed under general principles of law and applying a criterion of equality between the former professional associates. The court then proceeded to Martinotti’s fallback position: that (if the business was liquidated) the assets should be distributed piece-by-piece rather than in a block sale as argued by Segre. Following a rather lengthy discussion of relevant principles, the court remanded the case for an expert determination as to whether it would be more reasonable to conduct a bloc sale or an in-kind, asset-by-asset distribution. Segre is a difficult decision to characterize. On the one hand, the case presents a clash between the Race Laws and Italian commercial and property law, with the latter holding sway unless specifically overridden by the former. In this sense it is similar to the conflict of laws opinions seen in previous cases rather than an internal application of the Race Laws. Yet Martinotti’s underlying argument – that the Race Laws should as a general rule be interpreted so as to privilege Aryan over Jewish interests – seems reasonable under the circumstances, and the court goes out of its way to reject it, even going so far as to assert that “no right of preferential treatment” ([n]essun diritto a trattamento preferenziale) may be attributed to Martinotti over Segre in distributing the partnership assets.68 This is hardly an inevitable conclusion in dealing with a racially discriminatory statute, and the court’s emphasis on it gives the case a slight flavor of Rosso c. Artom: It may not be entirely coincidental that the case was decided in the same city and during the same year as Artom. Even if this comparison is not entirely persuasive, Segre – as compared to Invernizzi, Jona, and similar cases – stands for a narrow, literal reading of the Race Laws and a reluctance to extend them beyond their specific terms. 67 68

The business is described as a radiological institute and it appears that the partners were medical doctors, although this is not specified. Ibid., 448.

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Evaluating the Decisions: Ideas, Institutions, and the Elusive Role of Personality Having considered a significant number of Race Laws cases, in a variety of subject areas, we can state at least some tentative conclusions. By and large, they are not happy ones. Although not overtly antisemitic, Italian courts were in general largely indifferent to the fate of the Jews under the pre-1943 racial laws. It is true that, with rare exceptions, they were not noticeably enthusiastic about the laws, and viewed them (properly, I think) as a derogation from broader principles of Italian jurisprudence. But for the most part they did not seriously question the laws’ legitimacy and applied them according to their literal meaning in the majority of cases. There was some reluctance to extend the Race Laws beyond their stated terms, and the laws frequently gave way in conflicts with older, more established legal provisions, particularly in areas (e.g., property transfers or mixed marriages between practicing Catholics) that were arguably peripheral to the principal purposes of the legislation. There was likewise a strong solicitude for proper legal procedures, particularly when they involved the courts’ own traditional areas of jurisdiction. But these seem better explained as a respect for law and legal process, admirable on its own terms but not unusual in judicial actors, than as a particular opposition to the racial program or concern for its victims.69 Indeed, the insistence on proper procedures, while slowing down the laws in some cases, also had the effect of legitimizing them in the eyes of lawyers, judges, and ordinary Italians. Although the overall picture is bleak, there are some noteworthy exceptions. Cases like Falco c. Banca di Napoli, Martinotti c. Segre, and especially Rosso c. Artom took forceful stands in favor of a narrow interpretation of the Race Laws – positions that reflected at least some degree of moral courage and seem difficult to explain on the basis of technical considerations alone. Reading between the lines of these decisions, one senses at least an incipient distaste for the racial laws, and the judges appear to go out of their way to find reasons to restrict or impede them. The language in these decisions, emphasizing the exceptional nature of the Race Laws and their derogation from Italian traditions, is especially striking for opinions that were written after nearly two decades of Fascist rule. That a disproportionate number of such cases were decided in Turin, a city noted for its independent streak, suggests that – if not resistance in its very purest sense – we may at least be dealing with a different and more skeptical approach to the racial laws. Beyond the decisions themselves, it is noteworthy that – for a group of largely obscure cases affecting a relatively small number of people – the Race Laws decisions attracted so much attention. 69

Cf. M. R. Lo Giudice, “Razza e giustizia nell’Italia fascista,” Rivista di Storia Contemporanea (1983), 88–90 (suggesting that judges who sought to limit the Race Laws often appeared to do so out of distaste for their jurisprudential and procedural implications rather than solicitude for the Jews themselves).

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Judges like Peretti-Griva and distinguished lawyers like Jemolo and Calamandrei found themselves participating in controversies concerning the division of joint tenancies or the valuation of modest real estate with the enthusiasm that would normally be associated with high questions of law or policy.70 The controversy also expressed itself in the pages of Italian law reviews, and in a number of rather heated academic exchanges.71 As we have noted, a good part of this excitement related to jurisprudential issues and perceived threats to judicial independence rather than any special human sympathy for the Jews themselves.72 Still, it suggests that something more than technical issues were at stake, and important principles and values were at issue for both sides of the argument. The Dynamics of Legal Decision Making: Who, Where, and Why Rather than focusing on the majority of cases, it may be useful to concentrate on the exceptions: the lawyers and judges who, although unable to prevent enactment of the Race Laws, took at least some kind of action to restrict their consequences. What was the legal and moral basis for their actions, and why (particularly for those who were not themselves Jewish) were these issues important enough to command their attention? To the extent that such people differed from other participants in the legal system, did these distinctions result from differences in politics, legal theory, or the personality of the individuals involved, or are we dealing with random phenomena to which no pattern can be ascribed? Did the individuals in question act out of concern for the Jewish victims or for their own, more self-interested reasons? What if anything are the 70

71

72

Calamandrei served as counsel or co-counsel for the Cassazione decisions in Goldstaub (1940), Fubini (1942), and Paggi (1943). Jemolo served as counsel in Sinigaglia (1943) and also wrote at least two scholarly comments on Race Laws cases, as described in the text. See notes 34, 36, and 50 (citing articles by Jemolo and Rende); note 90 (citing article by Galante Garrone following Rosso c. Artom). Although the articles cited above (with the exception of Rende) were as a general rule sympathetic to the Jewish position, this attitude – any more than the position taken by a few liberal judges – was not necessarily representative of legal academia or the broader Italian public. The existence of two scholarly journals (Diritto Razzista ` on the subject of racial law and the publication of at least one (largely and Razza e Civilta) supportive) treatise on the subject provide evidence of a substantial acquiescence if not active support on the part of a large part of the legal community, not to mention the less elevated commentary flowing from La Difesa della Razza and other mass market publications. Among the repeated themes in the new “scholarly” publications was the necessity of considering race in determining an individual’s juridical status and the implications of this new test for the overall legal system. For a summary of academic and popular commentary on the Race Laws, see “Documenti della legislazione antiebraica: il commento delle riviste razziste,” in Rassegna Mensile di Israel, 1938: le leggi contro gli ebrei (Special ed.) (1988), 199–218. On the role of Italian legal scholars, including some who were enthusiastic about the Race Laws and a smaller number who remained skeptical, see Silvia Falconieri, Consensi e rimozioni: la dottrina giuridica italiana e la legislazione razziale fascista in D. Menozzi and A. Mariuzzo eds., A settant’anni dalle leggi razziali, 183–204 (2010). See text accompanying notes 16–17.

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lessons of the Race Laws for lawyers and judges faced with similarly unjust legislation in the future? Because of the relatively small number of people involved in this effort, it is possible to investigate the phenomenon in some detail. Essentially we are discussing a small circle of lawyers and judges, several of them in Turin but others in different parts of the country, who appear to have acted out of a more or less coherent set of legal and institutional commitments. These included a commitment to a traditionally liberal if often highly elitist vision of Italy, based on concepts such as an independent judiciary and the equal rights of citizens, which drew upon natural law, Roman Law, and other pre-Fascist sources and appears to have been especially strong in Piedmont, where the modern version of this ideology had been most assiduously nurtured;73 a more specific commitment to the separation of the religious and political spheres, although the participants differed in their attitudes toward religion and secular society; and a strong and arguably self-interested belief in the independence of the judiciary and the maintenance of its traditional status and prestige in Italian society. Some of these individuals also had a strong independent or even contrarian streak that enabled them to pursue their agendas without hope of very much support or even sympathy in broader legal circles. These factors varied in importance between different actors, and not all were present in all cases. But they appeared often enough to command our notice; together, they gave the activities the character of a coherent and even a quasi-organized movement rather than a collection of unrelated individual actors. The following pages evaluate these issues in greater detail, considering the role of legal and political ideology, institutional factors, and personality in explaining the behavior of the relevant individuals and why it was not more widespread. Although it is powerful, I have tried to resist the temptation to ascribe contemporary values or otherwise idealize the individuals concerned, together with the related tendency to impose postwar categories, such as the debate as to what constituted “resistance” and “collaboration,” on the historical record.74 Indeed, one of my principal findings is the unsatisfactory nature of the resistance/collaboration dichotomy, and the high degree of ambivalence 73

74

I am using “liberal” here in its nineteenth-century sense and not as an alternative to “conservative” as in twentieth-century America. Many if not most nineteenth-century liberals would be quite conservative by today’s standards. I have tried, in particular, to be careful in my use of the term “resistance” which has a specialized and highly contested meaning in Italy. In this connection I do not and cannot claim that the pre-1943 behavior of figures like Peretti-Griva, Jemolo, or Calamandrei constituted organized, capital “R” Resistance in the same sense as those who took up arms or went into exile in protest against Fascism (although some of these people did become Resisters in this latter sense after 1943). But I believe it is equally na¨ıve to treat such people as “collaborators” solely because they acted within rather than outside the existing political system. The histories of the Italian Resistance are too numerous to list here; a useful recent volume is Santo Peli, La resistenza in Italia: Storia e critica (Turin: Einaudi, 2006). The resistance-collaboration dichotomy is discussed further Chapter Five.

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that pervaded the behavior of even the more sympathetic Italian judges (and others) during the Fascist era. The chapter concludes with a comparison to other situations, in Europe and elsewhere, in which lawyers have been confronted with evil or unjust laws, and lessons for future lawyers confronted with similar challenges. The Magistratura and the Historic Role of Piedmont To appreciate the judicial response to the Race Laws, one must first understand something of the Italian judiciary and its traditions. The Italian judiciary (magistratura) has historically constituted a prestigious, frequently independentminded body in a manner that is only partially comparable to its British or American counterparts.75 One who chooses a career in the magistratura generally does so for life; it is not uncommon, even in present-day Italy, for judges to be buried in their togas, which are regarded as almost regal symbols of authority and importance. As Claudio Schwarzenberg has noted in his study of Fascist era jurisprudence, the magistratura retained a reasonable degree of independence throughout the 1920s and 1930s, although it is true that relatively few judges challenged the government in a meaningful or consistent way. Even in the late 1930s, the courts were far from completely “fascistized”: while a majority of judges eventually joined the Party with varying degrees of enthusiasm there was no effort to require membership until relatively late in the Fascist era, and those who did not join faced a competitive disadvantage with respect to assignments and promotions but little or no prospect of actual dismissal.76 Judicial independence appears to have been stronger in several of 75

76

See generally Thomas Glyn Watkin, The Italian Legal Tradition (Sudbury: Dartmouth Publishing Co., 1997), 115–121; Mauro Cappelletti, John Henry Merryman, and Joseph M. Perillo, The Italian Legal System: An Introduction (Stanford: Stanford University Press, 1967), 102–9. The role of the magistratura in helping to bring down the Christian Democratic party through the tangentopoli scandal, and mounting a strong if as yet unsuccessful challenge to former Premier Silvio Berlusconi, suggest its continuing importance in the (vastly changed) circumstances of the postwar period. See generally C. Schwarzenberg, Diritto e giustizia nell’Italia fascista, pp. 162–76. Schwarzenberg quotes Peretti-Griva, in his postwar memoirs, to the effect that “[T]he magistrate who did not bend [to Fascist pressure] might see a case removed in order to be entrusted to a more docile colleague, might see himself incur the disfavor of a superior and know that they would count his resistance against him in reviews and when he aspired to a better position; but [he] did not have to fear for his own bread.” Ibid., 165, quoting Domenico Ricardo Peretti-Griva, Esperienze di un magistrato (Turin: Einaudi, 1956), 17. Schwarzenberg’s analysis should not be taken as indicating that the majority of judges were anti-Fascist in outlook or particularly courageous in temperament: to the contrary, as he himself suggests, one of the major reasons that the Fascists did not place extreme pressures on the judiciary was that a majority of judges did pretty much what the government would have wanted anyway. Ibid., 167 (“But, if it remains true that the Italian judges, in their near totality, did not make themselves complicit in the illegality of the regime, it remains also true that they gave, in a more or less marked manner, their explicit adhesion to the totalitarian system”; Ma, se e` vero che i magistrati italiani, nella loro quasi totalit`a, non si resero complici dell’illegalismo del regime, resta pur vero che costoro diedero,

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the lower courts (and perhaps the Consiglio di Stato) than in the Cassazione, and was arguably stronger in regions like Piedmont, which had a preexisting monarchist tradition and was at a substantial geographic distance from the center in Rome. In addition to the special status of the judiciary, one must consider Italian political tradition. Italy was unified by men – Garibaldi, Mazzini, Cavour – who envisioned the country as a liberal if elitist constitutional monarchy with equal rights for its citizens, inspired by the French model although modified in accordance with local traditions.77 (The Church was excluded from a public role in this period by state action but also by the pope’s refusal to permit practicing Catholics to participate in Italian political life, a situation that did not change until after World War I.) This vision was reflected in the 1848 constitution of Piedmont-Sardinia, with its emphasis on the equal rights of all citizens regardless of religious confession, and continued to exercise a strong hold on the judicial mind even after the Lateran Treaties. That is not to say that judges were necessarily less antisemitic than other Italians, or those in Piedmont less than in other regions: There was always a strong Fascist movement in the area, and it is worth remembering that the Ricci letter as well as the decision in Rosso c. Artom were produced here. But it is at least arguable that the balance of competing forces was different in this region, and that ideology and temperament each played a role in this development.78

77

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in manierea pi`u o meno marcata, la loro esplicita adesione al sistema totalitario). The point is, rather, that the judiciary operated with a relatively high level of institutional independence, so that those judges who were inclined to take a less compliant position were comparatively free, as contrasted with many other Italians, to do so. The relative independence of the judiciary arguably distinguishes Fascist Italy from Nazi Germany and other countries with racial laws, but the distinction should not be overstated: Ingo Muller’s work suggests that the judiciary retained a fair amount of leeway in Germany and typically employed it so as to broaden rather than narrow the scope of persecutions. See Ingo Muller, Nazi Justice: The Courts of the Third Reich, 90–120 (discussing German courts’ role in expanding and in a significant number of cases anticipating legislative rules against mixed marriages and other aspects of the racial program). The term “liberal” must be seen in an Italian context and not confused with its contemporary American usage. See note 73. Even with this qualification, the statement must be treated as a generalization: there were substantial differences between Garibaldi, Mazzini, and Cavour’s political attitudes, not to mention those of later generalizations, and the issue of Church and State, among others, has to some degree never been fully resolved in an Italian context. See generally A. C. Jemolo, Church and State in Italy 1850–1950 (Oxford: Blackwell, 1960). Piemonte, which as its name suggests is mountainous in nature, is noted for the independent, taciturn nature of its citizens which depart rather dramatically from the usual image of Italy. When visiting the region I am sometimes reminded of the story of the New England witness who was asked on cross-examination if he had lived in the same town for his entire life. “Not yet,” the witness replied. I am not aware of an Italian version of this joke; but if there were it would likely be set in the region. Cf. Carole Angier, The Double Bond: A Biography of Primo Levi (New York: Farrar, Straus and Giroux, 2002), xv (other Italians often refer to piemontesi as pesci morti and the region as il frigorifero d’Italia).

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The liberal tradition and concern for judicial independence are recurring themes in the opinions which sought to restrict the reach or scope of the Race Laws. For example, in Rosso c. Artom, Judge Peretti-Griva emphasizes both the derogation from the equality principle inherent in the Race Laws and (in his view) the absurdity of preventing courts from considering all issues that are vital to resolving a case before them. Similar statements appear in the other decisions. That these views were limited to a relatively small portion of the Italian judiciary – and that they were frequently expressed without any obvious expression of sympathy for the Jewish victims – only renders more provocative the question of why and how they came to be expressed at all. Natural Law, Positivism, and the Role of Legal Theory In addition to institutional factors, one must consider the role of legal theory and doctrine. Although riven with disputes and at times bordering on incoherence, Fascist legal thought did have certain recurring themes. According to Schwarzenberg, these included three outstanding elements: a preference for positivist as opposed to natural law theory, which Italian Fascism shared with Nazi Germany by which it was heavily influenced; a related preference for legislative as opposed to judicial or administrative solutions to legal problems; and an emphasis on direct state action unrestrained by courts or other intermediaries.79 Since the Race Laws violated individual rights as previously understood, and frequently substituted legislative solutions for judicial action, it is perhaps not surprising that they provoked their strongest opposition among those who rejected this extreme positivist turn and continued to adhere at least in part to a natural law or natural rights philosophy. This natural law approach was sometimes buttressed by implicit or explicit appeals to Roman Law (Diritto Romano), the historical antecedent of the Italian legal system, which had generally emphasized the universal and neutral aspect of law and thus arguably conflicted with a racial approach. Jurists and academics who opposed an expansive interpretation of the Race Laws frequently began by noting the laws’ derogation from what had previously been considered to be universal or natural principles of law.80 79

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See (Claudio Schwarzenberg, Diritto e giustizia nell’Italia fascista, pp. 207–18 discussing themes and contradictions of the effort to develop a uniquely Fascist jurisprudence). Positivism generally refers to the notion of law as that which is specified by the legitimate lawmaking authority, while natural law theory emphasizes the existence of universal norms that are consistent across different times, places, and legal systems. These themes are discussed further in Chapter One. On natural law concepts and their relative ineffectiveness in restraining the Race Laws and racial thought generally, see Loredana Garlati, Dal giusnaturalismo alle leggi antiebraiche: ascesa e declino del principio d’ugaglianza: la parabola di un’utopia, L. Garlati and T. Vetto (eds.), Il diritto di fronte all’infamia nel diritto: a 70 anni dalle leggi razziali, at 3–34. A similar pattern applies to Diritto Romano: although this issue gave rise to an interesting academic debate in the 1930s – and efforts to resolve the contradiction by asserting the racial character

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Yet it is perhaps a mistake to ascribe too much significance to this debate. As scholars have noted, positivism is essentially a descriptive tool, which understands law as the reflection of certain realities but does not mean than any particular law is justified on this basis.81 Moreover, the natural law opposition to the Race Laws cannot be taken for granted, particularly in an Italian context. As Guido Fubini has noted, the laws of the various Italian states had for centuries extended rights to Christian persons that were denied to their Jewish compatriots, a situation that presumably seemed moral or natural to those creating these laws; indeed, virtually every Race Laws provision had some precedent in medieval or early modern Italian history.82 Well into the twentieth century, conservative authors continued to find religious and philosophical reasons for excluding Jews from civil society, even when existing laws allowed them to participate. Natural law concepts existed in Germany, France, and other countries although arguably with somewhat less force in Italy: The regimes in these and other parts of the world had little difficulty finding religious or philosophical authorities to support and even encourage discriminatory programs. The most that can be said is that the positivist turn in Italian law – along with institutional pressures and a strong tradition of religious if not racial antisemitism – provided a particular cast to the Race Laws and complicated the efforts of skeptics to frame a coherent response. The Role of Personality: Peretti-Griva, Jemolo, Calamandrei Although ideology plainly matters, there is an inescapable personal component to the decision to take a critical posture, which remains important even in situations (like the Race Laws) where the criticism is accompanied by a degree of ambivalence, and where it entails psychological or professional rather than direct physical consequences. In particular, an independent or contrarian streak – a willingness to go it alone despite the lack of outside encouragement – appears to characterize such actors. This independent streak is particularly

81

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of Roman thought were largely unconvincing – there is little evidence that it posed an effective resistance once the Government decided on an overtly antisemitic policy. See Olindo De Napoli, Razzismo e diritto romano: una polemica degli anni Trenta, Contemporanea: Rivista di storia dell’800 e del ‘900 (Bologna: Il Mulino, 2006), 35–63. That said, it seems plausible that a sort of residual or submerged loyalty to principles of Roman and natural law – together with the 1848 constitution and the institutional traditions of the pre-Fascist bench and bar – played a role in decisions like Rosso c. Artom and (more generally) in the behavior of a segment of the legal profession during Fascism, together with a vital role in postwar Italian jurisprudence. See H.L.A. Hart, “Positivism and the Separation of Law and Morals,” in Harvard Law Review 71 (1958); cf. Lon L. Fuller, “Positivism and Fidelity to Law – A Reply to Professor Hart,” Harvard Law Review 71 (1958). See G. Fubini, La condizione giuridica dell’ebraismo italiano, pp. 25–50. As if in recognition of this situation, Fubini titles his chapter on the Race Laws “the return to inequality between citizens” (il ritorno alla diseguaglianza dei cittadini) rather than a new conceptual breakthrough.

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important when it coincides with religious ideology or legal and political philosophy, so that the two factors reinforce each other in carving out a principled if sometimes lonely position. An interesting example of this process may be seen in the biography of Domenico Riccardo Peretti-Griva, the presiding judge in Artom and an important figure in the Turin judiciary of the period. Born into a modest middle class family in an upland town in Piemonte, Peretti-Griva was known throughout his career as a judge who emphasized practical over theoretical solutions and seemed almost to enjoy provoking the wrath of whoever the powers-that-be were at the time. Among his more famous decisions are a case in which he sentenced several Fascists to lengthy prison terms for assaulting a local political opponent and a series of postwar opinions that ultimately paved the way for the first Italian law on divorce (that one of his decisions involved a divorce of the actor Roberto Rossellini contributed further to his fame). Four years after Artom he would openly join the Resistance and become a mentor to a younger generation of anti-Fascist lawyers and advocates.83 Peretti-Griva was also an accomplished professional photographer, emphasizing portraits of rural landscapes and ordinary people, whose work continues to be displayed in Italy and around the world. His son-in-law, Alessandro Galante Garrone – admittedly a less than unbiased source – entitled a short biography of him Una Spina Dorsale (Backbone).84 The independent, slightly contrarian spirit displayed by Peretti-Griva was reflected in the experience of other attorneys and legal scholars who represented Jews in Race Law cases or supported their position (if indirectly) in academic articles. Among these the names of Piero Calamandrei, Arturo Carlo Jemolo, and (eventually) Galante Garrone himself stand out in particular. Calamandrei, who represented the Jewish parties in Goldstaub and other cases, is an especially fascinating if at times ambiguous case study. Professor of Law at the University of Florence and a key figure in the drafting of both the postwar constitution and the 1942 Code of Civil Procedure, as well as the founder of an important postwar journal (Il Ponte), Calamandrei represented the tradition of pre-Fascist 83 84

I take no position on whether Peretti-Griva’s pre-1943 activities may properly be termed resistance, although it seems extreme to call them collaboration either. See note 74. On Peretti-Griva’s jurisprudence and life story, see generally Domenico Ricardo Peretti-Griva, Esperienze e riflessioni di un magistrato (Milan: Guanda, 1953) (thematic memoir and statement of his judicial philosophy); Alessandro Galante Garrone, “Una Spina Dorsale,” Nuova Antologia, n. 2208 (1998), 42–53 (biographical reflections compiled by Galante Garrone regarding his late father-in-law). On the career of Galante Garrone – inspired in part by this father-in-law’s example – see note 89. Peretti-Griva’s personnel file, which maintained by the Italian Ministry of Justice, captures the courage but also the contradictions of his career: He remained in good standing throughout the Fascist era but attracted some negative attention because of his relatively late inscription in the Fascist party and for failing to inform his colleagues in advance of the holding in Rosso c. Artom, while in the postwar era he was honored for his post-1943 behavior. Ministero di Grazia e Giustizia [now Ministero della Giustizia], file #70641: Peretti Griva Domenico (various documents).

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Italian jurisprudence that remained intact if hardly untouched by the Fascist era and the messy, frequently corrupt postwar world that followed it. For him, a distaste for the Race Laws appears to have been part of a broader distaste for the degradation of law and morals during the Fascist era, a degradation that offended him particularly as a proceduralist and a believer in absolute principles of law that would be followed, regardless of their individual results, in all cases. That said, the Race Laws provoked something of a philosophical crisis for Calamandrei, who (like Peretti-Griva) remained at his post throughout the Fascist era although identifying with the Resistance after 1943. In the postwar era, he was to resolve this crisis by calling upon the judge to exercise substantive rather than merely formal justice, using the mythical figure of Antigone as a model for one who saw beyond the role of the lawyer as technician to the larger role of the citizen in advancing principles of justice that underlay the overall legal system.85 The story of Arturo Carlo Jemolo reflects similar themes, although his religious and personal philosophy differed in many respects from that of Calamandrei. The son of a Piedmontese mother and a Sicilian father, his mother descended from a converted Jewish family, Jemolo was to become the leading historian of the relationship between Church and state in modern Italy.86 His interest in the Race Laws appears to have sprung not from a secular or antireligious philosophy, but rather from a strong sense of the appropriate balance between Church and state and the laws’ violation of that concept, together perhaps with an awareness of own Jewish roots that persisted throughout his life and exercised a significant if at times ambiguous influence on his thought.87 85

86 87

A sympathetic description of Calamandrei’s personal and philosophical development is provided in Galante Garrone’s Introduction to Piero Calamandrei, Diario 1939–45, Vol. I, ed. Giorgio Agosti (1982), XXXIII–CXLIX. In particular Galante Garrone emphasizes Calamandrei’s evolution from an insistence on the necessity to apply inflexible principles of law in all cases, which he contrasted to the caso per caso (case by case) jurisprudence that was a product of the emerging totalitarian states, to a more subtle position that emphasized, in Calamandrei’s own words, “a new system of law, founded un a new social basis, wider and more human” (una nuova legalit`a, fondata su un nuovo assetto sociale, pi`u vasto e pi`u umano) – an evolution that appears to have been based, in no small part, on the experience of the Italian Race Laws. Ibid., CXXVII. Calamandrei himself addresses the Race Laws at several places in his diary, although it is not a major theme of the work. For example, the entry for April 9, 1940, discusses Calamandrei’s successful defense of a case involving the cancellation of a discriminato Jew (Fubini) from the lawyer’s registry, asserting that things had gone so well that “[t]he most fascist [member of the panel], V______ shook my hand at the end saying to me: “You have taught us many things” (Ella ci ha insegnato molte cose). Ibid., 145. Calamandrei’s behavior with respect to Fascism and the Race Laws in the pre-1943 era has been the subject of extensive debate in recent years, with some questioning the degree of his anti-Fascist commitment; see note 91. See note 77. See generally Arturo Carlo Jemolo, Anni di Prova (Florence: Passigli, 1991) (autobiographical memoir with preface by Francesco Margiotta Broglio); see also Arturo Carlo Jemolo, “Presentazione alla prima edizione,” in G. Fubini, La condizione giuridica dell’ebraismo italiano,

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The story of Peretti-Griva, Calamandrei, and Jemolo is especially fascinating because of the role that conflicting institutional and personal loyalties played in each case. All three men could be said to maintain personal loyalties – Calamandrei to the law, Jemolo to his notion of liberal or skeptical Catholicism, Peretti-Griva to the judicial role and the traditions of his beloved region – that predated and were arguably deeper than that to Fascism and its legal manifestations. Without taking anything away from the courage of these individuals, it would appear that their behavior was made easier or at least more feasible because it could be expressed in the context of a conflicting loyalty rather than simple obstinacy or personal revulsion at a distasteful statute. The pull of these conflicting loyalties also reinforced the sense of being – if hardly in the majority – at least not completely alone, and provided a network and a plan of action when the moment came. Although the story of Peretti-Griva, Calamandrei, and Jemolo is in some respects an uplifting one, it also demonstrates the ambiguities of resistance and collaboration and the controversies that remain open more than six decades after Fascism collapsed. In part, this ambiguity was political: All the individuals mentioned remained in their positions throughout the Fascist era rather than resigning or leaving the country. In part, it was ideological in nature: In mounting internal challenges to the Race Laws, judges and lawyers were participating in the same legal process that created them, and inevitably conceded a degree of legitimacy to the legislation they professed to abhor. This was indeed a dilemma faced by all those who attempted (or later claimed to have attempted) to ameliorate the harsher effects of Fascism “from the inside,” especially in the pre-1943 period when the organized resistance was small. While it is facile to criticize such people from a distance of two generations there is no question that their behavior involved serious moral and political compromises, which were to provide the basis for bitter recriminations in the postwar period. Perhaps for this reason, Jemolo, Calamandrei, and Peretti-Griva make relatively brief mention of the Race Laws in their postwar diaries and memoirs, suggesting that they regarded the laws as one part of a larger societal evil rather than a separate legal or political cause, but also that they may have been embarrassed by their failure to take a more overtly critical position at an earlier date.88 The decision in Rosso c. Artom, with which we began this discussion, provides an interesting case in point. Artom constituted a potential threat to the Race Laws because it asserted the jurisdiction of the courts over virtually any interpretive issue arising under the laws, notably the definition of a Jew, which was vital to the entire statutory structure. It is thus not surprising that, shortly

88

pp. 7–17 (introduction to original (1974) edition of Fubini’s book on the legal condition of Italian Jews). I am indebted to Paolo Borgna for this latter observation.

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after the court’s decision, the government modified the Race Laws to provide for still more exclusive administrative jurisdiction over the “who is a Jew?” question, effectively negating the better part of the opinion. This subsequent adjustment (and effectively Artom itself) were in turn the topic of a powerful critique in the Rivista di Diritto Matrimoniale (Review of Matrimonial Law) written by none other than Alessandro Galante Garrone, then a budding jurist and a few years later to become Peretti-Griva’s son-in-law as well as a leading figure in postwar Italian life.89 Galante Garron’s law review article – a forceful defense of Artom and arguably an indirect attack on the Race Laws – was subsequently reported in Diritto Razzista, a Fascist journal that was devoted to the Race Laws and that (not surprisingly) tended to take a rather unsympathetic view of the Jews and their condition. Many years later, Galante Garrone found himself accused of having collaborated with Fascism because of his citation in a pro-government journal.90 The accusation appears unconvincing, and the author subsequently retracted it. But the affair serves to dramatize the dilemma faced by those who opposed or sought to restrict the Race Laws from within the legal system, and the danger that their efforts would contribute to the legitimacy of the very oppressive system that they claimed to oppose. Calling such men collaborators seems extreme and even cowardly – and yet it is not quite right to call them unqualified heroes, either. The reality is there was a continuum of resistance, collaboration, and much in between: What can be said without question is these men faced the same test as their colleagues and did better than the great majority of them, and that a good deal can be learned from asking why.91 89

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A young magistrate at the time of Rosso c. Artom, Galante Garrone was to become a major figure in the Resistance, when he was one of the founding members of the Giustizia e Liberta` movement, and one of the most respected people in postwar Italy, where he served as a judge, professor (of history), and a prolific and respected author. For a sample of his philosophy and a suggestion of his contribution to postwar Italy, see Alessandro Galante Garrone, Piccoli discorsi sulla liberta` (Reggio Emilia: Diabasis, 1996); Alessandro Galante Garrone with Paolo Borgna, Il mite Giacobino: conversazione su liberta` e democrazia (Rome: Donzelli, 1994). See Alessandro Galante Garrone, Note, “Questioni sulla appartanenza alla razza ebraicacompetenza dell’autorit`a giudiziaria e amministrativa- I nati da matrimonio misto – I catecumeni,” Rivista di Diritto Matrimoniale Italiana (1939), 409–18; cf. Claudio Schwarzenberg, “Cinquant’anni fa: le leggi razziali e i provvedimenti antisemiti,” Il diritto di famiglia e delle persone (1989), 349, 383. It should be noted that the original accusation by Schwarzenberg resulted by all accounts from error rather than malice, and was indeed retracted in a later article in the same journal. See Claudio Schwarzenberg, “Tra il sonno della giustizia e la memoria dell’offesa: ancora a proposito delle leggi antisemite durante il regime fascista,” Il Diritto della famiglia e delle personne (1991), 305, 310–15. But the issue of what constituted resistance or collaboration remains plainly very much alive some sixty-plus years after the end of the war. The ambivalence or mixed motives reflected in the text finds echoes in other sources. A recent conference sponsored by the Pisa Bar Association (ordine forense) and Scuola Superiore dell’Avvocatura found a rather disheartening pattern of collaboration or even enthusiasm

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The successes and failures of Peretti-Griva, Calamandrei, Jemolo, and others raise the question of what can be done to train future lawyers and judges so as to prevent or at least discourage future Holocausts. It does not seem that the answer lies in more sophisticated legal theory. Positivism, natural law, and statutory interpretation theory all seem capable of serving evil ends: although Calamandrei’s postwar work, together with the structural innovations of the Italian Republic (notably creation of a constitutional court and a highly imperfect but still-functioning democratic system) constitute a good faith effort to restore the balance.92 Institutional factors – the independence and professionalism of judges and the persistence of competing religious, ethical, and other loyalties rather than blind obedience to the state – are perhaps more promising. Indeed, it is these institutional factors, rather than any inherent Italian goodness or decency, that appear to constitute the principal difference between the judiciaries of Italy and Germany in a similar era, although these differences too can be and have been exaggerated under the influence of

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for the Race Laws and other Fascist measures in that city, one frequently at odds with the postwar recollections of lawyers, judges, and other members of the profession. See David Cerri, “La giustificazione legal,” in Le leggi razziali e gli avvocati italiani: uno sguardo in provincia, ed. D. Cerri (Plus, 2010). Calamandrei himself, who was teaching in nearby Florence for most of the relevant period, comes in for a somewhat ambiguous treatment. Ibid., 26 (noting Calamandrei’s post-1943 resistance efforts but asking whether his description of the Race Laws as an unwanted German import may have been “more ‘expedient’ [‘conveniente’] than realistic.” The courage but also the ambivalence of Calamandrei, Galante Garrone, and other figures who tried to “contain” the Race Laws are described further in Silvia Falconieri, “Consensi e Rimozioni: la dottrina giuridica italiana e la legislazione razziale fascista,” in D. Menozzi and A. Mariuzzo eds., A settanti’anni dalle leggi razziali, pp. 193, 198–204. A still more comprehensive survey of the Italian bench and bar is found in Giuseppe Acerbi, Le leggi antiebraiche e razziali italiane ed il ceto dei giuristi. Acerbi finds that, while a significant number of Jewish and non-Jewish lawyers challenged the Race Laws, the clear majority failed to do so, although he appears to attribute this behavior more to the latent appeal of tribalism or ethnocentrism in all societies rather than to any special flaw in the Italian character. Ibid., 123–8 (lawyers), 129–36 (judges), 137–53 (professors), and 226–32 (analysis and comments). See note 85. On interpretation in postwar Italy, and Calamandrei’s role, see Mauro Cappelletti, John Henry Merryman, and Joseph M. Perillo, The Italian Legal System: An Introduction (Stanford: Stanford University Press, 1967), 240–77. On the parallels between statutory interpretation in Nazi Germany and the postwar United States, see Richard A. Posner, “Courting Evil,” The New Republic, June 17, 1991 (reviewing Ingo Muller, Hitler’s Justice: The Courts of the Third Reich). Postwar reforms in Germany to some degree parallel those in Italy, including separation of powers, creation of a constitutional court, and maintenance of an imperfect but still functioning democratic system: although these changes are arguably insufficient to contain or cordon off the damage of the previous era they have at least contributed in some fashion to preventing its recurrence. See David Fraser, Law after Auschwitz: Toward a Jurisprudence of the Holocaust 3–17 (Durham: Carolina Academic Press, 2005) (postwar legal systems have attempted to portray the Holocaust as aberrant or “illegal” in nature but must face the fact that it took place under the color of law and there is no unambiguous discontinuity between the our own legal system and the system that produced it).

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postwar propaganda It may that the question is unanswerable, or reducible to issues of character and personality that are beyond our capacity to plan and compensate for. Still, by providing an example of evil laws being interpreted by decent if imperfect men, the Race Laws can help us to frame the question.93

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Perhaps the most famous scholarly treatment of this question in a North American context is Robert Cover, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1975). The differences in time and political/legal system obviously make the comparison to Fascist Italy an imperfect one. Still, Cover’s description of the antislavery judges and the choices they faced – applying the law, resisting it, or “cheating” by pretending the law states something it does not – are eerily similar to those faced in the 1930s and 1940s. Ibid., 6.

5 The Daily Plebiscite: How Local Officials and Ordinary Italians Responded to the Race Laws

Chapters Two through Four have emphasized the application of the Race Laws in “close” or difficult cases, in an effort to determine the attitudes of lawyers, administrators, and other Italians toward them. A potential limitation of this approach is that, in accentuating strange or unusual cases, one may lose sight of the normal or ordinary run of events – what Italians call the quotidiano – that affects a larger number of people. There is also a danger that legal abstractions may understate the impact of the leggi razziali, since (almost by definition) they are limited to formal rules and procedures and cannot capture the extraor quasi-legal practices that always accompany racial statutes. Finally, the preceding chapters have emphasized national sources, since most decisions of any difficulty were referred to Rome by local authorities. Some of the flavor of day-to-day life under the Race Laws may accordingly have been lost. This chapter attempts to correct the biases above by adopting a narrower focus. Instead of the entire country, the chapter emphasizes the experience of two cities, Ferrara and (to a somewhat lesser extent) Turin, during the Race Laws era.1 In particular, the chapter emphasizes those issues – the behavior of police, prefects, Fascist organizations, and the general Italian populace – that can be difficult to measure at the national level. These local archives are supplemented by selected national sources, notably the Segreteria Particolare del Duce or Mussolini’s personal secretariat, which emphasize the responses of individual people and businesses rather than large, national organizations. By discussing individual Italian cities, the chapter also makes a first effort at

1

I chose Ferrara and Turin because of personal familiarity; because they offer a contrast between cities of different size and location; and, in the case of Ferrara, because there was not a truly comprehensive survey previously available. A number of previous studies do exist in Turin and various other cities, as discussed in this chapter.

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assessing differences in local and regional responses and the variables that account for these differences. Both this chapter and Chapter Six, which discusses Jewish responses, diverge somewhat from the “legal” or “juridical” emphasis in the preceding pages. I included them because I wanted to add a level of detail and immediacy that was not possible in the preceding materials. In this sense, I am attempting to balance the approaches of “macro” and “micro” history, although the book as a whole remains somewhat weighted toward the former.2 There is some unavoidable overlap between these chapters and previous items (and between the two chapters themselves). Prefects and police chiefs corresponded regularly with Demorazza officials, while Jewish responses to the laws frequently provoked new legal developments, new responses from non-Jewish Italians, and so forth. It is hoped that this overlap is justified is by the insights and perspective resulting from a more focused inquiry. Background: Resistance, Collaboration, and the Value of Local Studies The concept of local or regional studies has a distinguished pedigree, both in general historical research and with respect to fascism in particular. In Italy, these include books by Fabio Levi, whose research emphasizes the city of Turin, discussed further below; Enzo Collotti, author of a lengthy compendium on the Race Laws in Tuscany, as well as a shorter national study; Silva Bon, whose work emphasizes Trieste in the northeast; and other authors.3 In Italy, as in other countries, an emphasis on local archives is often combined with an emphasis on the response of “ordinary” people and petty officials as well as national figure. The work of Robert Gellately and Detlev Peukert on Nazi Germany are two further examples of this genre.4 While not ignoring national archives, these books typically provide a window on individual responses, including those of police, local administrators, and private citizens that is difficult or impossible to achieve at a national level. Peukert’s work is especially fascinating because it analyzes factors that led individual Germans to oppose or collaborate with the Nazi regime. His book, 2

3 4

Microhistory, which may involve the history of individual towns, villages, or even ordinary individuals, has become an important strand in historiography during the past forty years. The concept of microhistory is related to the so-called history of everyday life (Alltagsgeschichte) which developed during the same period. Such history is often used to balance the history of “great men” or “great events” that previously dominated the field. The work of historians like Natalie Zemon Davis and John Darnton in France, or Detlev Peukert in Germany, are examples of these genres. Peukert’s work is discussed further at the text accompanying note 5. See notes 86–87 and the accompanying text. See Robert Gellately, The Gestapo and German Society: Enforcing Racial Policy 1933–45 (Wotton-under-Edge: Clarendon Press, 1992); Robert Gellately, Backing Hitler: Consent and Coercion in Nazi Germany (New York: Oxford University Press, 2002); Detlev Peukert, Inside Nazi Germany: Conformity, Opposition, and Racism in Everyday Life (New Haven: Yale University Press, 1982).

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Inside Nazi Germany: Conformity, Opposition, and Racism in Everyday Life, includes a graph with two axes, the x-axis delineating the sphere in which dissident behavior took place (private or public/political) and the y-axis measuring the scope of the individual’s criticism (partial or general) of the Nazi regime. According to Peukert’s graph, as one moves further out along these two axes – as the individual’s criticism becomes more general in scope and as he or she moves from the private to the public or political sphere – the individual’s dissident behavior becomes more extreme, beginning with nonconformist behavior and proceeding to refusal, protest, and finally active resistance to the regime.5 Together with studies of the broader German and other European populations, there are numerous works on the response by Jews themselves to discrimination, persecution, and (eventually) extermination; these works, together with my own insights on the Italian situation, are discussed in Chapter Six.6 Ferrara: Local Factors, Extra-Legal Methods, and the Essential Continuity of the Race Laws Ferrara is a city of over 100,000 inhabitants7 located in the Emilia-Romagna region about halfway between Florence and Venice, and thirty miles north of Bologna, which is the regional capital. The city has a distinguished artistic history, owing to the presence of the D’Este dukes, together with an equally long history of aristocratic government. In the past century it has witnessed a high degree of political and economic extremism, with a largely middle class and historically conservative city – at least in the prewar days – anchoring a traditionally poor and uneducated agricultural hinterland. Ferrara had an important role in the Fascist movement and produced a number of key Fascist leaders, of whom the most famous was Italo Balbo, an early Mussolini lieutenant and air force commander who was killed in an aerial engagement in 1940. The Jewish community of Ferrara was historically disproportionate in both size and importance. Although the community has been traced to the 1200s or earlier, its greatest impetus came with the arrival of Sephardic (Spanish and Portuguese) Jews who were expelled from those countries in 1492 and 1497, respectively, together with others expelled from various parts of Italy in a similar period. It is said to have numbered more than three thousand persons at its peak in the sixteenth century and produced numerous important 5

6 7

D. Peukert, Inside Nazi Germany, p. 83. The graph is a simplifying tool and does not represent Peukert’s entire analysis, which is exceedingly rich and detailed, taking account of factors as diverse as age, class, religion, and the impact of racial and other propaganda on everyday behavior in Nazi Germany. His book is, moreover, an attempt to examine dissident behavior in Germany as a whole rather than attitudes toward Jews in particular, although the two are obviously related; my ensuing discussion is intended as a though experiment rather than as a criticism (or for that matter endorsement) of Peukert’s work. See Chapter Six. The population was about 120,000 in the Race Laws era and 130,000 today.

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personalities including Isaac Lampronti (1679–1756), the author of a famous Talmudic encyclopedia, along with a significant publishing industry. Harder times came with the advent of papal rule and the institution of a ghetto in the early seventeenth century, but the community rose rapidly in wealth and prominence with Italian unification and numbered more than seven hundred souls at the onset of the racial laws. Although most of the community was middle class, there were by the early twentieth century a number of prominent Jewish landholders, and (perhaps for this reason) it appears that Fascist sympathies ran deeper among Ferrara Jews than those of other Italian cities. As if to emphasize this point, the Fascist mayor ` of Ferrara was a Jew, Renzo Ravenna, until 1938. It must be noted (podesta) that – as in the rest of Italy – this history did little to protect the community: antisemitic persecutions were if anything more stringent than elsewhere in Italy, and more than seventy Ferrara Jews died in the Holocaust.8 The Race Laws and Holocaust in Ferrara have been documented in a number of books and movies, the most famous of which (albeit fictional in nature and at times rather inaccurate) is Giorgio Bassani’s The Garden of the FinziContinis and the associated film directed by Vittorio De Sica.9 This section has a narrower purpose: to identify a few distinctive themes in the application of the Race Laws in Ferrara during the period 1938–43, emphasizing the role of official and popular attitudes and how these differed from other parts of Italy. I rely primarily on official documents, but use memoirs and other secondary sources where appropriate.10 8

9

10

On the general history of Italian Jews, see Cecil Roth, The History of the Jews of Italy (Jewish Publication Society of America, 1946); Attilio Milano, Storia degli ebrei in Italia (Turin: Einaudi, 1963). A good twentieth century history is Mario Toscano, Ebraismo e antisemitismo in Italia: dal 1848 alla guerra dei sei giorni (Rome: F. Angeli, 2004). For a small but helpful book on the Ferrara Jews specifically, see Matteo Provasi, Ferrara ebraica: una citta` nella citta (Ferrara: 2G Editrice, 2010). Giorgio Bassani, Il giardino dei Finzi-Contini (Milan: Mondadori, 1962). The book and in particular the movie of Finzi-Contini have been criticized as factually inaccurate and unrepresentative of the experience of the Ferrara Jews, although inevitably influencing popular perception: ` tutto falso” (it’s As one guide whispered to me during a visit to the Ferrara Jewish museum, “E all made up). The principal archives are those of the Prefettura (prefect’s office) and Questura (police chief) from the period 1938 to 1945. Much of the secondary work on Ferrara has, not surprisingly, emphasized outstanding personalities such as Renzo Ravenna or Italo Balbo, although this work still provides important insights and perspectives. See, e.g., Ilaria Pavan, Il podesta` ebreo: la storia di Renzo Ravenna tra fascismo e leggi razziali (Rome: Laterza, 2006); Paolo Ravenna, La famiglia Ravenna: notizie e documenti su Margherita, Bianca, Gino, Alba, Renzo e Lina Ravenna dall’8 settembre 1943 alla fine della seconda guerra mondiale (Ferrara: Corbo, 2001); Alessandro Roveri, Tutta la verita` su Quilici, Balbo, e le leggi razziali (Ferrara: Este, 2006). There is also a significant collection of published and unpublished materials at ISCOFE (Istituto di storia contemporanea di Ferrara), the Ariostea Library in Ferrara, and local bookstores. See, e.g., Comune di Ferrara and others, Le leggi razziali del 1938: Ricordare perch`e non accada mai pi`u: Atti del Convegno di Ferrara 20 Novembre 1988 (1988); materials cited at note 65.

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Analysis of the Ferrara archives reveals three principal themes. The first is the interplay of local and national factors, with local conditions – notably the real or perceived economic prominence of the Jews and the presence (until 1938) of a Jewish podesta` – coloring both the enforcement of the laws and popular attitudes. The second is the relationship between legal and extra-legal initiatives, with nonlegal or even illegal activities – antisemitic propaganda, private acts of intimidation, and organized or quasi-organized acts of violence – supplementing and in many cases anticipating actual anti-Jewish legislation. This phenomenon is observable at the national level, but becomes far more so when seen from the perspective of a local prefect’s or police office. Finally, there is the essential continuity between the pre- and post-1943 eras, with archives moving seamlessly from one period to another, and information gathered during the Race Laws period proving invaluable in the roundups and deportations to come. This too was noted above, but becomes that much clearer at the local level, especially given the instances of pre-1943 violence in Ferrara that form a bridge between the Race Laws and Holocaust eras. I consider these issues in turn. Indifference, Pettiness, and Increasing Severity: The “Feel” of the Race Laws in Ferrara Background: the Jewish community and the Jewish podest`a – Fascist Italy was a highly centralized state in which the most important decisions tended to be made in Rome and the most important local positions were appointed rather than chosen by the local populace. This was especially true for the Race Laws, the administration of which was concentrated in the Interior Ministry (Demorazza) with relatively limited discretion to local prefects and police offices. This situation was magnified by the absence of expertise on the subject on the part of local officials, with the Race Laws bureaucracy being concentrated in Rome and relying, for the most part, on regular prefects and police chiefs to enforce the laws in each city and province.11 Notwithstanding the above – and given the profound and longstanding differences between the various Italian regions – the Race Laws, and Fascism itself, necessarily took on a different flavor in different parts of the country. These variations expressed themselves less in different resolution of the same issues than in the emphasis placed on the issues in the first place, with the business provisions attracting more attention in the larger urban centers and issues of personal status (schools, mixed marriages, etc.) predominating in the smaller cities and towns. There were also significant differences of intensity, with the Race Laws attracting more bureaucratic energy in places with more 11

Italy is organized into regions (regioni), provinces (province), and cities and towns (comuni), a scheme that is largely unchanged since the 1930s. However, the powers of local entities – if still limited by North American standards – are today a good deal more extensive than they were in the Fascist era.

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Jews, or a stronger tradition of antisemitism, than in other locations. Finally – and most dramatically – there were differences in what might be called the nonlegal or extra-legal side of the Race Laws, ranging from antisemitic press and propaganda campaigns to acts of individual or group violence against Jewish people or property. In Ferrara, administration of the Race Laws was colored by two factors in particular. The first was the real or perceived economic power of the Jewish community, which although small in numbers was especially well integrated, and included a number of individuals with extensive landholding or other economic interests.12 The second, and related, factor were the conservative or even pro-Fascist sympathies of a significant portion (albeit probably not a majority) of the Jewish community, which by most accounts were more extensive in Ferrara than other cities. The most famous Jewish Fascist was ` who was friendly with various leaders of surely Renzo Ravenna, the podesta, the movement and was removed from office only in 1938. The presence of a Jewish mayor does not mean that the city lacked antisemitism, but does suggest its particular character: indeed, Ferrara was a center of assertive Fascist activity, and its anti-Jewish persecutions were actually to be worse than in many other cities. The existence of a well-integrated, relatively prosperous Jewish community, ` means that the anti-Jewish together with the presence of a Jewish podesta, campaign from the beginning took on a particular flavor in Ferrara. This was especially true in the pre-November 1938 era, when there were intense antisemitic press, propaganda, and even graffiti campaigns but as yet no formal Race Laws. While such activities took place in all Italian cities, in Ferrara they became difficult to separate from attitudes toward Ravenna himself, who had many vociferous defenders but whose presence was inevitably perceived as an insult by some Fascists. The campaign against Ravenna dated from as early as 1936, and he resigned in March 1938, the remaining Jewish officials in Ferrara being removed shortly thereafter.13

12 13

More so than other cities, these interests often involved rural properties in the Ferrara or surrounding provinces, rather than (or in addition to) urban real estate. The personal saga of Ravenna, which by and large pre-dates the Race Laws, has been told several times and need not be repeated here. See note 10. The story remains significant for its indication of the position of the Ferrara Jews and the way it colored subsequent attitudes toward Jews in the city. On the situation of the Ferrara Jews following Ravenna’s departure, and the continuing purge of Jewish officials in the city, see Memorandum from Prefect of Ferrara to On. Ministero dell’Interno, Roma, No. 2314: Situazione degli israeliti in Ferrara, Sept. 2, 1938, Archivio di Stato di Ferrara [hereinafter AdS Fe], Prefettura di Ferrara: Gabinetto, cat. 30, b. 1, f. 1 (highlighting the dismissal, pending dismissal, or withdrawal from consideration of four Jews from official or quasi-official positions and stating that “the few other Jews” occupying positions of importance would be treated in similar fashion). The purge of Jews in Ferrara was no small issue: an undated document in the Ferrara archives lists no fewer than 35 positions in the city, ranging from city council member to a director of the Bank of Italy, that

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Detail, pettiness, and the radio issue – Following Ravenna’s dismissal and the enactment of the Race Laws, Ferrara settled into a pattern not wholly dissimilar from other cities, but with several distinctive characteristics. The most significant relates to the pattern of sporadic violence and intimidation that accompanied the Race Laws even before 1943, and which appears to have been somewhat more extensive in Ferrara than in other equivalent locations.14 This phenomenon is discussed in the following section. There were also more subtle, but nonetheless distinctive, patterns in the enforcement of the Race Laws themselves. For example, the issue of foreign Jews, of major importance in Rome, Turin, and other big Italian cities was largely absent here. Business-related issues, such as the rules regarding professional activities and the ownership of large enterprises, also had a lower profile, although real estate questions were somewhat more prominent. These patterns do not appear to reflect any special liberalism on the part of the Ferrara police or prefect’s offices, but rather the relative absence of the underlying forms of enterprise. What remained were a rather large number of decisions involving personal status issues (mixed marriages, “who is a Jew,” etc.); smaller or pettier commercial questions, such as the issue of commercio ambulante (street or pushcart vendors) and domestici (maids or other domestic workers forbidden to Jews under the Race Laws); and what might be called security or ideology issues, including Jewish-authored books and newspapers, possession of radios by Jews, and other similar items. Much of the effort appears to have gone into surveillance activities rather than the enforcement of actual laws: There is a steady flow of reports on the activities of prominent and not-so-prominent members of the Jewish community, and one group of Jews is reported for sitting in a cafe´ with what appeared to the observer to be an arrogant attitude.15 The predominant impression is one of pettiness, cruelty, and (to some degree) boredom rather than large-scale ideological struggle. If one issue captures the spirit of the Race Laws in Ferrara, in all its pettiness and tragicomic aspect, it is probably the matter of Jewish-owned radios. In the Spring of 1941, the police headquarters (questura) received instructions to confiscate all radios (apparecchi radio) owned by Ferrara Jews, an order that appears to have been duly executed.16 A series of interpretive

14

15 16

were occupied by Jews although the same names often appears in more than one position. AdS Fe, Prefettura di Ferrara: Gabinetto, cat. 30, b. 1. f. 1. A significant exception is the city of Trieste, in the far northeast, which was historically part of Austria and had an antisemitic tradition stronger than most of the country. See generally Silva ` persecuzione, risposte (Gorizia: Editrice Goriziana, 2000). Bon, Gli ebrei a Trieste: Identita, This incident is discussed later in this chapter. See Telegram to Police Chiefs [Questori Regno] from Minister Senise, Feb. 16, 1941, AdS Fe, Questura di Ferrara: Gabinetto, b. 1, f. 4 (ordering the confiscation of all radios owned by non-discriminati Jews); Note to Prefects [Prefetti Regno] from Minister Senise, Feb. 21, 1941, AdS Fe, Questura di Ferrara: Gabinetto, b. 1, f. 4 (ordering confiscation of radios owned by

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questions immediately arose. What would happen, for example, to discriminati Jews or Jews in mixed marriages, where the radio was nominally owned by the non-Jewish party? What about radios owned by foreign or stateless Jews or by schools and other Jewish-controlled organizations? What if the radio had been purchased on credit from an Aryan supplier and the payments had not yet been completed? What would happen to the confiscated radios? Would they be given to poor Aryan families, wounded soldiers, or simply be held until some as yet indefinite future date? Could Jews sell or transfer the radios to a non-Jewish party before confiscation, and if so, whom? What about radios that had been specially formatted to receive only approved Italian broadcasts? A pattern emerged under which most of the issues were ultimately resolved against the Jewish parties, with local officials being given progressively less room for maneuver in each passing year. For example, the confiscation order did not originally apply to discriminati Jews, and documents from the winter and spring of 1941 are filled with questions regarding the treatment of these cases. By later in the same year it was clear discriminati Jews were subject to the order.17 The same was true of treatment of specially formatted radios and radios owned by foreign Jews and Jewish organizations.18 In each case

17

18

non-discriminati Jews of Italian nationality, not including mixed marriages, and suggesting that the prefects may permit exceptions with ministerial approval). The reference appears to be to Carmine Senise who was the national chief of police in the relevant period. The issue of radios is discussed primarily in the archives of the police headquarters (questura) in Ferrara rather than the prefect’s office (prefettura), although some documents appear to have been referred by the former to the latter. The police and prefects’ offices had differing responsibilities and organizational structures, but typically worked together on racial issues. See Telegram to Regia Prefettura di Ferrara from Minister Senise, Oct. 20, 1941, AdS Fe, Questura di Ferrara: Gabinetto, b. 1, f. 4 (clarifying that confiscation order now applies also to discriminati Jews). A subsequent note indicates that the Interior Ministry, upon application by the local Prefect, could permit the use of radios in exceptional cases only to Jews “who have [demonstrated] undeniable merit toward Regime and Country” (che abbiano innegabili benemerenze verso Regime e Paes`e); Letter to Prefects’ Offices from Ministero dell’Interno, Direzione Generale della Pubblica Sicurezza, Nov. 24, 1941, AdS Fe, Questura di Ferrara: Gabinetto, b. 1, f. 4. See Letter to Prefects’ Offices and Questura di Roma from Ministero dell’Interno, Direzione Generale della Pubblica Sicurezza: Sequestro apparechi radio agli ebrei anche se discriminati ed alle famiglie miste, Nov. 4, 1941, AdS Fe, Questura di Ferrara: Gabinetto, b. 1, f. 4 (revoking the previous exceptions for crystal [a galena] radios and radios with tubes capable of receiving exclusively local broadcasts and also extending confiscation to Aryan spouses in mixed marriages); Telegram from Minister Senise to Prefects’ Offices, Mar. 4, 1941, AdS Fe, Questura di Ferrara: Gabinetto, b. 1, f. 4 (extending confiscation order to foreign and stateless Jews); Letter from Ministero dell’Interno, Direzione Generale della Pubblica Sicurezza, to Prefettura di Ferrara: Apparecchi radio in possesso degli ebrei, Mar. 12, 1941, AdS Fe, Questura di Ferrara: Gabinetto, b. 1, f. 4 (extending compensation order to Jewish nurseries and hospices). The case of specially formatted radios is interesting in that the entire basis for the confiscation of radios appears to have been the danger of accessing foreign broadcasts, a danger that was essentially absent for the radios in question; notwithstanding this the exemption was revoked.

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the ultimate decision was made in Rome, suggesting a rigid central control over decision making but also a gradual expansion of the laws in response to questions arising in local offices. This is not to say that no compromises were made. For example, Aryan spouses in a mixed marriage were for a time permitted to retain their radios, although this rule was eventually limited to those spouses who manifested the appropriate “Fascist sentiments,” and Jews were permitted to sell or transfer their radios to Aryans in certain cases.19 But these decisions too were made primarily at the national level, albeit following extensive local inquiries and the investment of substantial energy in local enforcement efforts. Confiscated radios were for a time turned over to wounded soldiers or poor Aryan families but in many cases appear to have languished in police custody until the law was no longer in effect.20 While seemingly trivial, the issue of radios demonstrates several important aspects of the Race Laws in a small- to medium-sized city like Ferrara. The first is the extraordinary amount of energy devoted to such a relatively minor issue, which results partly from national policy but also (one suspects) from the relative absence of competing matters and the correspondingly large amount of time available for smaller problems. The second is the tight national control of even the pettiest administrative details, so that local officials – while vital for their enforcement and information-gathering efforts – ultimately had relatively little discretion with respect to major policy decisions. Finally is the steady constriction of the activities permitted to Jews throughout the Race Laws era, a pattern previously observed at the national level but even more apparent from local documents. The pattern is especially noteworthy since the prohibition on radios was not strictly speaking part of the original Race Laws, but appears to have been added at the enforcement level. 19

20

See Letter to Prefects’ Offices from Ministero dell’Interno, Direzione Generale della Pubblica Sicurezza, Nov. 24, 1941 (providing for return of radios confiscated from mixed families “only if the Aryan members of said families demonstrate fascist sentiments” (soltanto se individui ariani componenti dette famiglie risultino sentimenti fascisti); Telegram from Minister Senise to Prefects’ and Police Offices, Apr. 6, 1941, AdS Fe, Questura di Ferrara: Gabinetto, b.1, f. 4 (allowing Jews who had not yet completed payment for confiscated radios to reach accord for their return to Aryan sellers or to sell confiscated radios to Aryan persons). See Telegram to Prefects’ Offices from Minister Senise, May 10, 1942, AdS Fe, Questura di Ferrara: Gabinetto, b. 1, f. 4 (confiscated radios should be delivered to federations of Fasci di Combattimento to be offered to hospitals housing sick and wounded soldiers); but see Letter from Ministero dell’Interno, Direzione Generale della Pubblica Sicurezza Sezione II to Prefects of Siena, Salerno, Palermo, Ferrara, Belluna, Genova, and Savona, Jul. 27, 1942, AdS Fe, Questura di Ferrara: Gabinetto, b. 1, f. 4 (excluding radios confiscated from Jews from the previous order). Confiscated radios were returned to Jews in August 1943, in the period between the fall of Mussolini and the German occupation, with an exception for confiscations made from people who were found to be listening to enemy broadcasts. See Telegram from Minister Senise to Questore di Ferrara, Aug. 14, 1943, AdS Fe, Questura di Ferrara: Gabinetto, b. 1, f. 4. The archives do not indicate what steps if any were taken after September 1943.

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Expansion and evasion: the domestici problem – The same basic pattern – tight central control, a preoccupation with small or trivial issues, and a gradual but steady increase in the severity of the Race Laws – is visible in the issue of Aryan servants (domestici) in Jewish homes. As noted in Chapter Three, the laws prohibited such arrangements but left numerous issues unclear, including the specific functions covered and the cases, if any, under which exceptions might be permitted. Because of the relatively high level of prosperity among many Ferrara Jews, the issue came up with special frequency in the town. Although in some respects similar to the radio problem, the domestici issue was complicated by various evasion strategies. A particular concern was the phenomenon of Jews who, denied the ability to retain Aryan servants in their own homes, took up residence in hotels or pensioni where they received similar services from the (Aryan) hotel staffs. A related concern was domestics who, unable to perform their previous duties for Jewish employers, were hired to provide more specialized services not covered by the terms of the legislation.21 The Demorazza early took the position that the prohibition included skilled activities such as drivers, doormen, cooks, and gardeners, although not less skilled occupations such as farm workers, cowhands, dressmakers, and so forth: but the creativity of Jewish families was often a step ahead of the national office. Not surprisingly, the Demorazza took a dim view of both kinds of transaction. Thus, a telegram from the Interior Ministry, received by the Ferrara prefect’s office March 16, 1941, notes that benestanti (well-off) Jews, “to frustrate the provision that prohibits their maintaining Aryan servants,” have taken up residence in hotels and calls for the prefects to proceed “gradually and with appropriate tact” to correct this situation.22 Some eighteen months later, in November 1942, a similar letter from the Demorazza called attention to the rehiring problem, noting that Jewish families were hiring female domestics in the guise of, for example, secretaries, typists, and ironers and males as nurses, clerks, and so forth, and calling for “more assiduous and strict vigilance” leading to punishment of the offending parties.23 These communications were duly received by the Prefect’s Office and forwarded to Police Headquarters for appropriate action. Nevertheless, the tone of the letters, the fact that they were received (respectively) three or four years after promulgation of the laws, and 21

22 23

Demorazza, Letter to Prefects, “Domestici al servizio di ebrei,” No. 24000/4-D/15752, Feb. 4, 1939, Box A1, DR 1.12 (activities covered and not covered by domestici rules). The exclusion of the latter appeared to be based on the less intimate relationship that they suggested, or (perhaps) on the fear of increased unemployment if the rules were extended to them. See Chapter Three. See Telegram from Minister Buffarini to Prefects’ Offices, No. 16882/442 P.S., Mar. 16, 1941, AdS Fe, Prefettura di Ferrara: Gabinetto, cat. 30, b. 1, f. 12. See Letter from Demorazza to Prefects’ Offices, No. 4726: Domestici ariani al servizio di ebrei, Nov. 8, 1942, AdS Fe, Prefettura di Ferrara: Gabinetto, cat. 30, b. 1, f. 12, doc. 006. These cited letters were sent to all Prefects’ Offices and found in the Ferrara archives.

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the absence of detailed local follow-up suggests a certain lack of enthusiasm or at least efficiency in the local enforcement of these rules. Further sources of tension were the various administrative exemptions that permitted Jews to maintain domestic servants in specified cases. One important exemption allowed Jews in mixed marriages to maintain domestic services under “special conditions” at the discretion of the Public Security Authority. A further rule allowed qualified nurses to work for Jews but limited to cases of “suitably confirmed necessity” (necessit`a debitamente compravata).24 While the Ferrara archives contain limited materials on this subject, there are implicit suggestions that such exemptions were granted with exceptionally high frequency in some cities, resulting in some consternation at the national level. Thus, a letter from the Demorazza to the Prefects’ Offices, dated April 29, 1943, reiterates that the agency has become aware of frequent evasions of the domestici rules and calls for application of “strictest severity” (stretto rigore) in the release of authorizations under the law.25 The letter was passed to Ferrara police headquarters “with a request to conform to superior directives and for more rigorous determination [of the applicable exemptions].”26 The persistence of evasion strategies does not mean that the prohibition against domestic servants went unenforced: Even a casual perusal of the Ferrara police files provides numerous examples of Jews cited for violation of this provision.27 Indeed, at times the rule was administered with an exactitude bordering on the comical. Provincial towns with few if any Jews were required to certify as to the absence of Aryan servants in Jewish homes, and the Jewish Community of Ferrara was queried as to whether the community itself had any Aryan employees.28 The issue appears to have been one of inconsistent rather than systematically lax enforcement, with clever or simply lucky individuals evading the rules and other, less fortunate Jews caught in the dragnet. 24

25 26

27

28

See Note from Prefect of Ferrara to Mayor, Provincial Commissioners, Police Chief, and Comandante Gruppo CC.RR., n. 3080, Nov. 30, 1938, AdS Fe, Prefettura di Ferrara: Gabinetto, cat. 30 “EBREI”, b.1, f.12., doc. 048. See Letter from Demorazza to Prefects’ Offices, no. 778: Domestici Ariani al servizio di ebrei, Apr. 29, 1943, AdS Fe, Prefettura di Ferrara: Gabinetto, cat. 30 “EBREI”, b.1, f.1, doc. 005. See Note from Prefect of Ferrara to Police Chief, Gab. 2522: Domestici Ariani al Servizio di Ebrei, May 17, 1943, AdS Fe, Prefettura di Ferrara: Gabinetto, cat. 30 “EBREI”, b.1, f.1, doc. 004 (quoting from Demorazza letter and appending request to conform to superior directives). See, e.g., Questura di Ferrara, Morning Report to Prefect, April 1, 1940, AdS Fe, Prefettura di Ferrara: Gabinetto, cat. 30 “EBREI”, b.1, f.12, doc. 012 (citing three Jews, ages 33, 60, and 84, for violation of the domestici prohibition). See Letter from Comune di Bondeno, Provincia di Ferrara, to Prefect of Ferrara, Dec. 5, 1938, AdS Fe, Prefettura di Ferrara: Gabinetto, cat. 30 “EBREI”, b.1, f.12, doc. 030 (certifying that there are no Aryan domestics working for Jews in that territory); R. Questura di Ferrara, Note to Prefect’s Office, Gab. No. 06633: Personale ariano alla dipendenza di comunit`a israelitiche, May 21, 1942, AdS Fe, Prefettura di Ferrara: Gabinetto, cat. 30 “EBREI”, b.1, f.12, doc. 009 (certifying that the Jewish Community of Ferrara has no Aryan employees).

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Like the radio issue, the domestici problem demonstrates the three- or foursided nature of the Race Laws enforcement process, with police and prefects’ offices having to contend with the Jewish population, on the one hand, and the Demorazza bureaucracy – which almost always called for stricter enforcement – on the other.29 From this perspective, the enforcement or nonenforcement of specific provisions appears to be less a function of the inherent “anti-” or “philo-Semitism” of the relevant officials than the complex interplay of bureaucratic interests and abilities that played itself out on a daily and weekly basis. Of special interest are the numerous reminders from the national office to adopt a more rigorous anti-evasion policy, reminders which implicitly suggest a certain lack of enthusiasm or at least efficiency on the part of local authorities. Whether such inefficiency resulted from sympathy for individual Jews or from the overextension of administrative resources – or whether it was simply a figment of the Demorazza’s imagination – is difficult to tell.30 It is noteworthy that evasions appear to have been carried out primarily by better-off or at least more sophisticated individuals, which is consistent with the theme observed at the national level, namely, that rules aimed at the business- or property-owning classes were often less effectively enforced (or at least more easily evaded) than those aimed at the working or middle classes. Status issues and information gathering – Together with radios, domestics, and other enforcement matters, a large portion of the local prefect’s time was take up with definitional or status issues, primarily mixed marriages, the “who is a Jew” problem, and the grant or denial of discriminato status. Although the ultimate resolution of these issues was delegated to a national commission, the prefects became involved in funneling requests for declarations of Aryan status and grants of discriminazione to the relevant authorities as well as conveying their decisions to the interested local parties. While seemingly routine in nature these processes were by no means devoid of issues or controversies, and the opinions of the Prefect – if not always persuasive – were a vital part of the process. The case of Emilio Teglio provides an interesting example of this give-andtake process. According to Teglio’s file, the Segretario Federale31 recommended 29 30

31

Interventions by local Fascist institutions, who also called for stricter enforcement, sometimes added still a further dimension, as discussed later in this chapter. For the role of sympathy on the part of ordinary Italians, Letter to Prefect of Ferrara from the Governor General of Libya, Feb. 17, 1940, AdS Fe, Prefettura di Ferrara: Gabinetto, cat. 30 “EBREI”, b.1, f.12, doc. 015 (forwarding with approval a letter from one Giusepppina Punzetti Manarini requesting that a domestic assistant be permitted to her friend, Vanda Pesaro Levi, whose husband had died and who was according to the letter in poor health). The files do not indicate if the request was granted. However, the existence of the letter, and the fact that it would be forwarded with approval by a public official (albeit one some distance from the scene), suggest something of the conflicting pressures to which local police and prefects were subject. The Federale (or Segretario Federale) was a nationally appointed official with a significant local role during the Fascist era. The national commission is described in Chapter Four.

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a grant of discriminato status to Teglio, but the Prefect, in a note of July 20, 1940, expressed a negative recommendation, stating that Teglio “has none of the requirements among those fixed by the law for being discriminated.” A further letter from the Demorazza, dated August 14, 1940, asked the Prefect to reevaluate this finding taking into account voluntary wartime service by Teglio’s father in the nineteenth century, but the Prefect responded that Teglio continued to lack any requirements for discrimination and that it lacked sufficient information to evaluate the significance of his father’s earlier service, Apparently unconvinced, the Demorazza granted discriminato status to Teglio and his family on October 24, 1940. A note appended to Teglio’s file states that his son Ugo was interned in early 1941 for “maintain[ing] a hostile attitude toward the directives of the regime and associating with co-religionists [who were known as] fomenters of defeatist propaganda.”32 While the Ferrara Prefect was not without power in status cases, he was careful to observe the limits of his authority, and tended to repeat the opinions of the national office in the most literal way possible. In this era before photocopiers, a popular method was to make a carbon copy or simply retype the Demorazza’s instructions, with conforming changes, and pass them on to the police chief or other local official on the Prefect’s own stationery.33 This method, also observed in connection with the domestici problem, served to transfer responsibility for enforcement to the recipient official – the equivalent of the American “passing the buck” – although it does suggest a rather limited discretion on the part of the relevant local officials.34 32

33

34

See Prefettura di Ferrara, Collection of documents relating to application for discriminati status of Teglio Emilio, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 2, f. 21, doc. 055. The files contain two otherwise identical collections of the documents, which appear to have been retyped from the original letters and combined in a single document. The item with respect to Ugo Teglio was appended to the second copy. Similar “streamlined” files were maintained for other applicants. The grant of discrimination does not encompass article 10(a) of the legislation pertaining to military service. See, e.g., Letter from Demorazza to Prefects and other addressees, No. 1320/24: Accertamenti di Razza – Discendenti di matrimonio misto – R.D.L.17.XI.1938 XVII n. 1728, Mar. 9, 1940, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI,” b. 2, f. 21, doc. 008 (clarifying revised methods for determining race of descendants of mixed marriages); Letter from Prefettura di Ferrara to Podest`a (Mayor) and Provinical Commissioners, N. 534: Accertamenti di razza – Discendenti di matrimonio misto – R.D.L. 17/11/1938-XVII n. 1728, Mar. 31, 1940, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 2, f. 21, doc. 028 (letter from prefect repeating essentially verbatim the instructions in the previous document). In this case, differences in spacing, etc. suggest the document was retyped but content and phrasing remain almost identical. The limits on the prefects’ jurisdiction are suggested by a memorandum from the Demorazza in March 1942 following the institution of changes in the procedure for certifying the racial status of children of mixed marriages. The memorandum specifies, inter alia, that the prefects are to accept certification requests only from the appropriate public officials; that the Interior Ministry is to be informed of factual changes that might affect the grant of discrimination or the determination of Aryan status; that the Ministry was to be informed of all mixed marriages

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If their decision-making powers were restricted, the prefects’ offices were an invaluable source of information to the national authorities. The archives of the Ferrara Prefect are filled with a seemingly endless series of reports to the Demorazza and other agencies, regarding the number of mixed marriages and discriminazione cases; violations of the laws and their punishment; and the general situation of the Jews at regular intervals. The reports indicate the level of repression that was present even in the supposedly benign era of the pre1943 Race Laws. For example, a report of March 23, 1942 – eighteen months before the German occupation – refers to nine “public security measures” already adopted with respect to local Jews, including four individuals who were interned at unspecified locations, four sent to concentration camps (campi di concentramento, the term used in the report), and one warning (ammonizione) provision. This is in addition to more prosaic numbers including 687 total Jews per the most recent census; 448 Jews currently present, of whom 360 were non-discriminati and 88 had discriminato status; 135 descendants of mixed marriages and 97 others whose requests for discriminazione or declaration of Aryan status remained pending; three people who had not filed declarations of their Jewish status but were considered Jewish anyway; and four descendants of mixed marriages who, for unspecified reasons, had not bothered to request a declaration of Aryan status. The report further includes an assessment of the overall situation regarding the Jews in Ferrara, stating that “the Jews present [in Ferrara] have generally speaking not given cause for notice . . . also because [they are] attentively monitored and supervised” and concludes that “[a]ll in all, one could thus conclude that the behavior demonstrated by the Jews of this province is completely normal.”35 Even when it did not lead to more immediate

35

or other interracial unions; and similar items. A measure of local independence was called for in the request that the Ministry be informed of “news items which, in the Prefect’s judgment, may be useful to the Ministry of the Interior, either for an eventual revision of the provisions adopted, or for having a more precise awareness of the moral and social character [figura] of the Jews and mixed race persons . . . taking into account or otherwise reflecting the current state of war.” Letter from Demorazza to Prefects’ Offices, Prot. N. 131/30.R.: Accertamenti di razza – Provvedimenti per la difesa della Razza italiana, Mar. 6, 1942, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 2, f. 21, doc. 002. See Letter from Prefect of Ferrara to Ministero dell’Interno: Gabinetto, Provvedimenti per la difesa della razza.-Situazione degli ebrei nella provincia di Ferrara, Mar. 23, 1943, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 2, f. 21, doc. 063. Other documents add further details including the names of the interned and deported individuals. The cited document was one of a long chain of reports received or sent by the Ferrara Prefect during the Race Laws era, some of which merely transmitted information but others of which, as above, expressed positive or negative opinions with respect to the relevant applications. In the former category see, e.g., Memorandum from Comune di Ferrara, Servizi Demografici: Anagrafe to Prefetto di Ferrara, No. 19923/10952: Documentazione razziale di discendenti da matrimonio misto, Jul. 18, 1940, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI,” b. 2, f. 21, doc. 092 (transmitting documentation submitted by 45 descendants of mixed marriages for purposes of defining their racial status); Memorandum for Comune di Ferrara, Servizi Demografici: Anagrafe, to Prefettura di Ferrara, N. 14303/25949: Determinazione Razziale, Sep. 5, 1940,

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repressive measures, information of this type was to prove invaluable to the Nazis and their Fascist sympathizers when discrimination and selective acts of repression turned to deportation and extermination in the post-1943 era. Ideological and cultural purges – Beyond personal status issues and reports to the Demorazza, a large amount of the police and prefect’s time were devoted to what might be called ideological or cultural antisemitism, a policy which at times reached absurd lengths. The campaign against Jewish books, authors, and others in the publishing industry provides an interesting case in point. In 1938, a memorandum arrived from the Ministry for Popular Culture directing the prefects to identify all periodicals based in each province together with information regarding the Jews, if any, who were employed by such periodicals. A second memorandum requested similar data regarding other aspects of the publishing industry, including the production of paper, the sale of used books, private libraries and reading rooms, music publishers, and “all entities that have an activity relating to the nonperiodical press.” The latter memorandum further requested a list of all publications with Jewish authors, whether of Italian or foreign origin.36 Lists were duly assembled by the Ferrara Police Chief and forwarded to the Prefect in the same year, including the names of nine fixed book and stationery stores (cartolibrai), three ambulatory booksellers, and nine printers in Ferrara itself (there were also others in the surrounding towns). The lists also indicated eleven periodical publications, one of which, the Proceedings of the Ferrara Academy of Science, was listed as having three honorary and twelve ordinary Jewish partners together with one convert to Christianity, and two others (one psychiatric and one historical journal) were listed as having one Jewish participant each, in the latter case none other than the deposed podesta` Renzo Ravenna himself. The remaining activities appear to have included no one of identifiable Jewish origin.37 As always, there were

36

37

AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 2, f. 21, doc. 097 (submitting six documents relevant to determination of racial status of one Lelio Reggio). The detailed nature of the local reports, including census reports, taxpayer and property lists, and the subjective assessments above were of substantial assistance to the Germans and their Fascist collaborators when they began roundups of Italian Jews after September 1943; see later in this chapter. See Ministero delle Cultural Popolare: Direzione Generale della Stampa Italiana to Prefects’ Offices, Circular No. 19198: Razza Ebraica, Sept. 9, 1938, Prot. 2385, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 36, b. 161, f. I, ins. h (periodical publications); Ministero della Cultura Popolare, Direzione Generale per il Servizio della Stampa Italiana Div. III, Circular to Prefects’ Offices, N. 101, Nov. 23, 1938, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 36, b. 161, f. I, ins. h (booksellers and related activities). The second document appears to have been a modified version of an earlier memorandum, and the Ferrara Prefect requested information from the police chief regarding the Jewish presence in the publishing and bookselling trades prior to its receipt. See R. Questura di Ferrara, Memorandum to Ferrara Prefect, N. 2435: Editori-librai-cartolibraiInformazioni sul personale di razza ebraica (all. 1), Oct. 19, 1938, and the attached list, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 36, b. 161, f. I, ins. h, Div. Gab. 011111 (confirming

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the inevitable interpretive questions, such as the ability of discriminati Jews to continue serving as editors, an issue later resolved (as was by now typical) in favor of a harsher interpretation.38 There is evidence of increasingly harsh application of the rules with the passage of time, but also some foot dragging by local officials, notably after 1943 when a more systematic effort to exclude books by Jewish and “enemy” authors was made.39 Once again the arbitrary and petty nature of the campaign, which invested substantial energy in an arguably peripheral issue, are

38

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than no publishers, booksellers, or owners of stationery stores were themselves Jewish or had any Jewish employees); R. Questura di Ferrara, Memorandum to Ferrara Prefect, N. 2385: Pubblicazioni periodiche-personale ebraici, Oct. 20, 1938, and the attached list, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 36, b. 161, f. I, ins. h, Div. Gab. N. 010882 (listing periodicals published in the Province with information regarding Jewish participation in each one). A subsequent memorandum listed five publishing companies, three used bookstores, and one kiosk at the Ferrara railway station, together with one private library and one antiquarian bookshop, all safely in Aryan hands. R. Questura di Ferrara, Memorandum to Ferrara Prefect, N. 013003: Enti aventi un’attivit`a inerente alla stampa non periodica – Personale di razza ebraica, Dec. 26, 1938, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 36, b. 161, f. I, ins. h, Div. Gab. 013003. See Ministero della Cultura Popolare: Direzione Generale per il Servizio della Stampa Italiana, Memorandum to Prefects’ Offices: Giornalisti Ebrei, Oct. 18, 1939, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 36, b. 161, f. I, ins. h, Div. Gab. 2435 (relaying Demorazza decision providing that discriminati Jews could not be permitted to serve as managers or editors (direttori responsabili) of periodical publications, even if they were listed in the special professional register for Jewish journalists permitted under the law). See Memorandum from Ministero della Cultura Popolare: Direzione Generale Stampa e Radio Interna to Provincial Chief [Capo Provincia] of Ferrara, N. 3496, Apr. 18, 1944, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 36, b. 161, f. I, ins. h (requesting confiscation (sequestro) of all books by Jewish authors or authors belonging to enemy countries); Note from Capo della Provincia to Questore di Ferrara, No. 4638, Apr. 29, 1944, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 36, b. 161, f. I, ins. h, Div. Gab. 4658 (relaying same request to the Ferrara police chief). The typed text of the first letter, which appears to have been a form used for various provincial chiefs, states that “it does not appear that this Prefecture has complied with the disposition contained in circular number 1103” regarding confiscation of the indicated books; these words are crossed out and less menacing language, stating simply that “the Ministry of Popular Culture has requested” the confiscation, is written in its place. Yet another telegram from the same Ministry, dated April 24, 1944, refers to the “absolute ` of removing works by Jewish and enemy authors from the necessity” [inderogabile necessita] shelves. A list of prohibited authors, found in the archives of the Ferrara Prefect, includes more than seven hundred authors, the overwhelming majority of which seem to have Jewish names. List of Undesirable Authors (Elenco di Autori Non Graditi), received May 18, 1944, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 36, b. 161, f. I, ins. h. The elimination of books with Jewish authors took place in several different stages, proceeding from the elimination of Jewish texts in Italian schools in 1938 to the prohibition of new publications and, finally, to the elimination of books from libraries in May 1942; the Ferrara documents suggest that this process remained incomplete some two years later. See generally Michele Sarfatti, Gli ebrei nell’Italia ` persecuzione (Turin: Einaudi, 2000), 195, 197–8. The continuity, or fascista: Vicende, identita, discontinuity, between the pre- and post-1943 Race Laws in Ferrara and elsewhere is discussed further below.

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its most striking features. But the application of the rules remained rigid, and they succeeded in eliminating or sharply reducing the Jewish presence in the publishing sector even before the German occupation.40 Related to the books and libraries campaign was the effort to expel Jews, including those with discriminati status, from the entertainment (spettacolo) field. A July 1940 memorandum from the Demorazza suggests the extent of the ban, requiring exclusion of Jews from activities including (inter alia) authors, librettists, translators, directors, dancers, stenographers, members of the chorus, “actors of any rank,” and even such nonprofessional positions as technicians, cleaning, or other custodial personnel.41 A memo from the Ferrara Police Chief to the Prefect’s Office, written twelve days later, assures “the most rigorous observance” of the Demorazza’s orders.42 In addition to policing specific sectors, the authorities engaged in a broader effort to prevent corrupt or “defeatist” Jewish opinions from infecting the general population. This effort was assisted by a small army of informers who apparently had little else to do than report on Jewish meetings or habits.43 A single incident captures the spirit of this phenomenon. On July 10, 1942, the 40

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A fascinating memorandum from the Interior Ministry, Public Security Agency, addressed to the “prefects of liberated Italy” but found in the archives of the Ferrara police department, discusses the sensitive issue of reintroducing Jewish and other books following the end of the Fascist era. Reflecting the general confusion of the postwar era, the memorandum notes the “unjustifiable compression of the freedom of thought” occasioned by such laws, but also the difficulty of drafting new laws designed to correct the existing situation, and calls upon the prefects to “trust in [affidarsi a] the sense of discretion and responsibility of the organs to whom is committed the execution” of the relevant measures. The memorandum is dated October 12, 1944, but was received by the Ferrara Prefect in August 1945, after the end of the war. Memorandum from Ministero dell’Interno, Direzione Generale della Pubblica Sicurezza, to Prefects of Liberated Italy, No. 12977.5: Opere di autori di razza ebraica e sequestro di stampati ecc., Oct. 12, 1944, AdS Fe, Questura di Ferrara: Gabinetto–Cat. 22, b. 1, f. 4. Finding the right “balance” between antisemitism and other policies was sometimes a difficult problem even during the Fascist era: A 1941 telegram to the prefects’ offices requests the confiscation of the current edition of Il Tevere, an especially antisemitic publication, because of an excessively bitter criticism of the enforcement of the racial laws. The telegram further requests that local publications refrain from addressing similar subjects. Telegram to Prefects’ Offices from Ministro Pavolini, Jun. 7, 1941, Prot. 3070, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 36, b. 161, f. I, ins. h. See Memorandum from Demorazza to Prefects and Other Addressees, No. 1549/24: Provvedimenti razziali nel settore dello spettacolo, Jun. 18, 1940, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 2, f. 26, doc. 003. See R. Questura di Ferrara, Memorandum to Prefect, N. 1122: Provvedimenti razziali nel settore dello spettacolo, Jun. 30, 1940, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 2, f. 26, doc. 002. One problem with informers’ reports in Ferrara – a problem previously observed in other cities – is that they were often more enthusiastic than accurate. See, e.g., Memorandum from Police Chief to Prefect of Ferrara, Nov. 10, 1940, N. 09790: Anonimo a carico di ebrei, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30, b. 2, f. 23, doc. 001 (finding numerous factual inaccuracies or misleading statements in a two-page letter, signed only “Long Live the King,” which had been sent to the Prefect’s Office).

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Prefect of Ferrara received a letter from the Political Investigations office of the Voluntary Militia for National Security (MVSN) with a single, one-word subject: “Jews.” According to the letter, “various Jews are meeting at the caffe´ “Ferrario” [on] Via Giovecca corner [of] Via Bersaglieri del Po, seated at the small tables along the street, in friendly conversations, smiling, very elegant, giving the sense of great well-being [benestare] in these times of war. Their attitude of indifference to the life of the Nation is anything but in keeping with the times.” In order to exclude any possibility that “these Jews” might engage in political activity, the letter added, they were being subjected to surveillance by the writing party.44 Commerce, professions, and real estate – As a general rule, commerce and the professions occupied less time in Ferrara than in larger cities, but they did not escape attention altogether. The issue of Jewish real estate was a particular concern given the large holdings of some of the wealthier Ferrara Jews in this sector: although this issue was largely handled by a national agency, the EGELI, local governments played a significant role in identifying local properties and monitoring their values.45 Significant, if relatively small, archives are also devoted to Jewish-owned societa` anonime, to the donazioni (gift or transfer) issue, and to the matter of prizes and awards that either bore Jewish names or were destined for Jewish recipients.46 Thus, for example, the Premio Luzzatto, a competitive prize for medical students which was named for a Jewish professor and awarded by the Arcispedale Sant’Anna in Ferrara, was required to delete any reference to the professor in accordance with the racial laws.47 As in many such cases, the hospital appears to have initiated 44

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See Letter to Prefect of Ferrara from Milizia Volontaria per la Sicurezza Nazionale, Comando 75 Legione, Ufficio Politico Investigativo, N. 364/B/2: Giudei, Jul. 10, 1942, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 3, f. 34, doc. 001 The use of the word giudei, an uncomplimentary term for Jews roughly equivalent to the English “yids” or “kikes,” exemplifies the spirit of the times. Handwritten notes by the Prefect’s Office forward the Militia’s letter to the Police Chief: The writing is partly illegible but appears to request that the police identify the Jews in question and take other appropriate action. Ibid. EGELI stands for Ente di Gestione e Liquidazione Immobiliare (Real Estate Management and Liquidation Agency), the entity charged with management of confiscated Jewish property. The EGELI’s character and operations are described in the preceding chapters. Among the responsibilities required to be carried out at the provincial level were the collection of information on Jewish-controlled businesses; the division of these firms into those which implicated national defense, those with 100 or more employees, and those which fit into neither of the above categories; and supervising the sale or liquidation of firms in the first two categories. See Memorandum from Ministero delle Corporazioni, Ufficio Speciale, to Prefects and Presidents of Provincial Councils of Corporations, Mar. 2, 1939, n. 12: Applicazione del R.D.L. 9 febbraio 1939.XVII n. 126, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b.2, f. 20. See Memorandum from Ministero della Cultura Popolare: Direzione Generale per il Servizio della Stampa Italiana to Prefect of Ferrara, Nov. 7, 1939, No. 26066, Oggetto: Premio Luzzatto, Ads Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 2, f. 20, doc. 009 (the prize could be offered only if it deleted any reference to Luzzatto name).

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the correspondence with the Prefect on this question, asking how this uncomfortable situation should be handled.48 Universities likewise were required to verify the Aryan status of both donors and recipients of academic scholarships, even after the general expulsion of Jews from Italian higher education.49 The expulsion of Jewish professionals was likewise carried out by the provincial Fascist confederations in cooperation with local and national authorities.50 The impact of the Race Laws was by no means limited to wealthier Jews. As at the national level, the Ferrara archives contain a significant number of items relating to middle- or lower-class individuals, from exclusion of Jews from service as firemen (vigili del fuoco)51 to the revocation of licenses for an extraordinary range of activities, including carrying weapons, leasing out rooms, operating garages and public bathrooms, and the sale of items ranging from precious gems to clothing to rags (stracci), which was an important occupation of the Jewish lower classes.52 The issue of street vendors (commercio ambulante) received special attention. Two particular items 48

49

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See Letter from President, Arcispedale Sant’Anna Ferrara, to Prefect of Ferrara, Sep. 13, 1939, No. 6295, Oggetto: Premio Luzzatto, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 2, f. 20, doc. 010 (requesting instructions how to proceed given that the person for whom the prize was named (Prof. Alberto Michelangelo Luzzatto) was a Jew). Although the policy against Jewish names was clear, the organization resorted to somewhat evasive language in a subsequent correspondence, proposing to eliminate the prize’s secondary goal of honoring the memory (richiamo) of Prof. Luzzatto but never quite announcing a new name for the honor. Letter from President, Arcispedale Sant’Anna Ferrara, to Prefect of Ferrara, Jan. 13, 1940, No. 19, Oggetto: Premio Luzzatto, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 2, f. 20, doc. 008. See Letter from R. Universit`a degli Studi “Italo Balbo” Ferrara to Prefect of Ferrara, Feb. 24, 1943, N. 1261: Accertamenti Razziali, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 2, f. 20, doc. 017 (requesting that Prefect verify the Aryan status of nine donors together with six recipients of academic scholarships). See Memorandum from Confederazione Fascista dei Professionisti e degli Artisti, Unione Provinciale di Ferrara, to Ministry of the Interior, Prefect of Ferrara, and various other addressees, Mar. 13, 1940, No. 149, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 1, f. 1, doc. 014 (communicating cancellation of Jewish engineers, pharmacists, and others from professional registers pursuant to Race Laws). See Letter from Commander of the Provincial Corps of Firefighters of Ferrara to Ferrara Prefect, N. 1068: R. Decreto Legge 17/11/1938 XVII n. 1728 recante proveddimenti per la difesa della razza, Apr. 12, 1939, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 2, f. 17, doc. 005 (assuring that no Jewish “element” is present in the Ferrara fire department). See, e.g., Memorandum from Ministero dell’Interno, Direzione Generale della Pubblica Sicurezza to Prefect of Ferrara and other addressees, No. 10.22061, 12982: Licenza di caccia col fucile ad ebrei discriminati, Dec. 5, 1940, AdS Fe, Questura di Ferrara: Gabinetto-Cat. 22, b. 1, f. 4 (directing that hunting licenses, which under previous directives had been permitted to discriminati Jews, should upon expiration no longer be renewed); Ministerial Circular No. 33019/10 (copy) May 8, 1940, AdS Fe, Questura di Ferrara: Gabinetto-Cat. 22, b. 1, f. 4 (clarifying that Jews were not permitted to lease rooms and that existing contracts to this effect needed to be revoked); Memorandum from Ministero dell’Interno, Direzione Generale della Pubblica Sicurezza, to Prefects Offices, n. 10.18854.12982: Ebrei azionisti di societ`a anonime esercenti servizi pubblici di piazza e di noleggio da rimessa con autoveicoli, Dec. 4, 1941,

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involved the issue of local authority to grant exemptions for hardship cases and the matter of licenses transferred from Jewish vendors to Aryan spouses. The latter was generally resolved by prohibiting transfers unless the license had been granted to the Aryan spouse prior to the Race Laws.53 The former went through several ministerial permutations although, here again, the trend was toward a progressively more complete exclusion of Jews from the indicated activity.54 While most of these issues were decided by bureaucrats in Rome, the comprehensive nature of the rules, and the gratuitous cruelty of their administration, is best visible at the local level. Particularly noteworthy are the number of rules that were implemented by administrative fiat, often by the national police bureaucracy (Direzione Generale della Pubblica Sicurezza) rather than the Demorazza itself: The case of ambulatory commerce is a particular but hardly exclusive example of this phenomenon.55

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AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 22, b. 1, f. 4 (withdrawing licenses from Jewishowned firms maintaining public transport services); Memorandum from Ministero dell’Interno, Direzione Generale della P.S., n. 10.17405/12982: Ebrei – commessi di oreficeria, Nov. 2, 1941, AdS Fe, Questura di Ferrara: Gabinetto-Cat. 22, b. 1, f. 4 (confirming prohibition against Jews in trade of precious objects and clarifying that the prohibition extends also to jewelry store sales clerks); Telegram from Minister Bocchini to Prefects’ Offices, N. 57097/10 (undated copy), AdS Fe, Questura di Ferrara: Gabinetto-Cat. 22, b. 1, f. 4 (prohibition against tailoring and sale of military garments and collection of used garments for resale); Memorandum from Ministero dell’Interno, Direzione Generale della P.S. to Prefects’ Offices, N. 10.14476/12982.26, Jun. 4, 1942, AdS Fe, Questura di Ferrara: Gabinetto-Cat. 22, b. 1, f. 4 (prohibition against commerce in rags (stracci) of material other than wool). See Letter from Ministero dell’Interno, Direzione Generale Pubblica Sicurezza Sezione III, to Prefects Offices, No. 10.18300/12982: Ebrei ed ariani coniugati con persone di razza ariana – Certificato di iscrizione, Nov. 11, 1941, AdS Fe, Questura di Ferrara: Gabinetto – Cat. 22, b. 1, f. 4. See Memorandum from Ministero dell’Interno to Prefects Offices, Apr. 1, 1940, No. 10.12602/12982: Licenza di commercio ambulante agli appartenenti alla razza ebraica, AdS Fe, Questura di Ferrara: Gabinetto – Cat. 22, b. 1, f. 4. (grant of licenses to Jews for ambulatory commerce was to be determined on a case-by-case basis); Telegram from Minister Bocchini to Prefects Offices, Jul. 30, 1940, N. 54299/10, AdS Fe, Questura di Ferrara: Gabinetto – Cat. 22, b. 1, f. 4 (Public Security Authority prohibits grant of licenses to Jews, including Jews with discriminati status, for ambulatory commerce with respect to any type of article); Telegram from Minister Senise] to Prefects Offices, Dec. 31, 1940, AdS Fe, Questura di Ferrara: Gabinetto – Cat. 22, b. 1, f. 4. (reaffirming the general ban but authorizing discretionary exception for Jews having dependent families [che hanno famiglia a carico]. On the trend toward a progressively more complete ban of Jews from ambulatory commerce and other regulated activities, see M. Sarfatti, note 39, 197–9. A further area in which the police received broad discretion was hotels and resorts, particularly those located in strategically sensitive areas, as many of them – being located primarily in the mountains or near the waterfront – inevitably were. See, e.g., Telegram from Regia Questura di Bolzano to Police Headquarters, July 21, 1943, N. 016846: Soggiorno di ebrei in localit`a marine o di lusso, AdS Fe, Questura di Ferrara: Gabinetto – Cat. 22, b. 1, f. 4. (all towns in the province of Bolzano being considered militarily important and the town of Merano is treated as a deluxe (di lusso) resort under applicable rules Jews are banned from residing anywhere in the province). While the exclusion from resorts was both harsh and gratuitous,

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A slightly more comical example of the comprehensiveness of the Race Laws, together with the bureaucratic problems in their enforcement, was the effort to purge Jewish names from the Ferrara telephone directory. Because the purge included the names of Jewish businesses as well as individuals – and because the telephone companies lacked the necessary “expertise” to distinguish Jewish from Aryan names – the project was less simple than might appear, requiring an extensive back-and-forth process before each new edition of the directory could be issued. A letter from the telephone company to the Ferrara Prefect’s Office in May 1943, asking the Prefect to remove Jewish names from a list of new telephone subscribers, suggests the extent of cooperation that was required in this area.56 That the request had to be made twice, the second request asking the Prefect’s “utmost kind urgency” (massima cortese urgenza) in responding, suggests the limitations of this process together with the large number of competing demands on the Prefect’s time.57 Conclusion: on the interplay of local and national factors – The Ferrara archives offer no great surprises: Outcomes are generally consistent with those at the national level, and, indeed most, close issues were sooner or later referred to the Demorazza for resolution. What is gained is a sense of the look and “feel” of the Race Laws in a medium-sized city, and how ordinary Italians – police, prefects, private citizens – responded to them. Some of the features observed, notably the press and propaganda campaigns surrounding the departure of ` were unique to the city. Other aspects – an Renzo Ravenna as the city’s podesta, emphasis on small or even trivial problems, a large amount of time devoted to reporting and recordkeeping functions, and a slavish if not always enthusiastic pursuit of goals identified at the national level, rarely limited by sympathy for the Jewish victims but often subject to resource or other constraints – are probably typical of other similar-sized places. Ferrara thus demonstrates the importance of local factors, but also some significant global trends, which – although not unique to the city – are easier to observe and analyze at the provincial level.

56

57

it also exemplifies the sort of strange, even bizarre contradictions that characterized the Race Laws. Thus, a circular from the Public Security Administration, written in June 1943, provides that Jews (including discriminati Jews) are to be banned from deluxe seaside properties and other deluxe resorts (localita` marine o di villeggiatura di lusso), but provides an exception for those displaced by Allied air raids and permits Jews with legitimate medical needs to visit other (presumably less luxurious) resorts for a 30-day renewable period at the discretion of the local authorities. These rules did not apply to racially mixed families, although the Jewish members of such families were subject to the rules if they attempted to stay alone in the designated areas. Letter from Ministero dell’Interno, Direzione Generale della P.S., to Prefects and Police Headquarters, Jun. 9, 1943, No. 10.38913, AdS Fe, Questura di Ferrara: Gabinetto – Cat. 22, b. 1, f. 4. See Letter from T.I.M.O. (Societ`a Telefoni Italia Media Orientale) to Prefettura di Ferrara, N. 1561: Abbonati ebrei e Ditte ebraiche da togliere dall’elenco abbonati al telefono, May 11, 1943, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 2, f. 29, doc. 059. Ibid.

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The Ferrara archives may also serve to redress the balance “hard” and “easy” cases in the preceding chapters. Courts and administrative agencies necessarily deal with borderline cases and evasion efforts. Reading the decision in Rosso c. Artom, or the Demorazza’s deliberations regarding stock corporations, one could get the idea that the Race Laws were legally and politically contested throughout the pre-1943 era, with numerous evasion efforts that the bureaucracy was hard-pressed to keep up with.58 The Ferrara archives suggest that – while there were inevitably borderline issues – these were by and large the exceptions, and most rules were enforced according to and in many cases beyond the letter of the law.59 For ordinary Italians, the Race Laws may well have been arbitrary and petty, and at times even tedious in nature – but they were also enforced and respected, no more but certainly no less than any other law. Propaganda, Intimidation, Violence: The Role of Extra-Legal Activities in the Anti-Jewish Persecutions As in all racial statutes, one cannot evaluate the Race Laws solely on the basis of their written terms. Together with the laws as written, there was inevitably a “penumbra” of unwritten rules and regulations which extended the system beyond its official terms. In the first instance, this may simply be a matter of aggressive interpretation by public officials, as when bureaucrats extended the rules regarding domestic servants, ambulatory commerce, or businesses and professions beyond their stated terms. Beyond this lay action by private or unofficial actors, as when Italian companies fired Jews they were not required to dismiss under the Race Laws, or when private citizens refused to associate with Jews even when there was no rule preventing them from doing so.60 Threatening or harassing gestures, such as antisemitic propaganda, graffiti, or demonstrations constituted a further level. At the outer rim of the circle, there was frequently a layer of violence.61 58 59

60 61

See Chapters Three and Four. The role of the police and security apparatus in extending the reach of the Race Laws, often by means of administrative decisions having little if any link to the legislation itself, is an expecially interesting aspect of the Ferrara archives. On the role of police and administrative bodies (notably the Interior Ministry) in extending the Race Laws beyond their original terms, see Stefano Caviglia, “Un aspetto sconosciuto della persecuzione: l’antisemitismo “amministrativo” del Ministero dell’Interno,” in Rassegna Mensile di Israel, 1938: le leggi contro gli ebrei, Special ed. (1988), 234–52. See Chapter Three. The coexistence of legal and extra-legal means of enforcement, frequently including statesponsored or -tolerated violence, is a common feature of racial statutes. See Martin Gilbert, Kristallnacht: Prelude to Destruction (London: Harper, 2007) (describing 1938 Kristallnacht riots); C. Vann Woodward, The Strange Career of Jim Crow, 2nd ed. (New York: Oxford University Press, 1966), 114–15, 173–4 (describing lynchings of African-Americans in post– World War I era and revival of the lynching phenomenon in the early 1960s). On the centrality of violence to Fascism, notwithstanding later denials, see generally Michael R. Ebner, Ordinary Violence in Mussolini’s Italy (Cambridge: Cambridge University Press, 2010).

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Mythology has it that the Italian Race Laws were nonviolent in nature, the Jews being in physical danger only following the German occupation in the fall of 1943. While this may have been true in parts of Italy, it was rather less so in Ferrara, where an undercurrent of symbolic and substantive violence accompanied the racial program even before enactment of the 1938 laws.62 Beginning with isolated events, the violence accelerated during the war years and – although the progress was hardly linear – found its ultimate expression in the actual deportation and murder of Jews during the occupation period. The violence, large and small, is catalogued in official documents and in the writings of Jews who survived the period in Ferrara, for whom it constituted a searing and unforgettable memory. The most famous (if hardly the only) example of antisemitic violence was the sacking of the historic Ferrara synagogues on the evening of September 21, 1941, an act that – although not lethal in nature – constituted a clear step beyond discrimination and toward physical destruction of Jews and Jewish property. The religious and artistic heritage of the synagogues, which even today draw crowds of visitors, magnified the significance of this attack. A report from the police chief to the Ferrara Prefect, written the day after the assault, captures the significance of the attack but also the curiously mixed response it received from local officials and the general population: The [patriotic] demonstration having broken up, a group of Fascists, moving suddenly into Via Mazzini, succeeded in penetrating the building in which are located the Italian, German, and French rite Jewish temples and the residence of the rabbi, Leone Leoni, damaging, amidst hostile shouts at the Jews, the furnishings of two of the said temples. The public [police] forces quickly intervened and obtained the orderly breakup of the said Fascists, preventing the burning of several sacred objects [arredi sacri] brought by them into the piazza for that purpose. The population which witnessed the incident remained indifferent.63 62 63

The city of Trieste, with its Austrian heritage and strong antisemitic traditions, constitutes a more extreme example of this phenomenon. See notes 63 and 86 and the accompanying text. Memorandum from R. Questura di Ferrara to Prefect’s Office, Sep. 22, 1941, No. 07907: Manifestazione antiebraica, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 2, f. 32, doc. 001. While the official report tries to play down the incident, the spirit of the times was indicated by the behavior of a Fascist official sent to investigate the incident who – apparently becoming impatient with the rabbi’s protests – physically slapped (schiaffegiare) him. Ibid. The rabbi survived the war and filed a formal report concerning the incident, including the official’s behavior, in 1945. See Report of Questore di Ferrara to Procura del Regno, Oct. 23, 1945, n. 03129: Saponaro Giuseppe fu Filippo e di Dicolla Isabella, etc., Ads Fe, Prefettura di Ferrara: Gabinetto – Cat. 30 “EBREI”, b. 1, f. 1. The synagogue attack in Ferrara appears to have been essentially a local event although similar events did take place in a number of other cities, notably in Trieste, where the synagogue was seriously damaged in 1942 and a series of acts of violence and intimidation took place throughout the war years. See Silva Bon, Gli ebrei a ` persecuzione, risposte, 201–41. Trieste: identita,

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The synagogue attack was the most notable in a series of popular anti-Jewish expressions, including antisemitic graffiti (scritte murali), demonstrations, and journalistic campaigns, that complemented and in many cases preceded the actual anti-Jewish laws. While to some degree encouraged by Fascist propaganda, they were at times difficult for the authorities to control, and were monitored closely by local officials. Graffiti campaigns appear to have been especially popular in Ferrara, dating from the period before the full-fledged antisemitic campaign, although at that time they were treated as isolated events.64 The Race Laws period was also characterized by numerous individual acts of violence which, while insufficient to bear mention in official reports, are recorded in speeches, memoirs, and other recollections by Jews who survived the era. The testimony of Giorgio Bassani, the noted author, is a case in point. As a student in Ferrara during the Race Law years, Bassani recalled a regular diet of insults, beatings, and intimidation by other Ferrara youths, including some he had counted as friends before the onset of the anti-Jewish campaign.65 In such cases, the sense of humiliation and isolation – of having been abandoned by those one assumed to be one’s colleagues and countrymen – appears to have been as or more painful than the actual assaults. Similar memories are reported by other observers and in other cities.66 64

65

66

See, e.g., Memorandum from Prefect of Ferrara to Ministry of the Interior, July 11, 1936, N. 1582: Scritte murali contro gli ebrei, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 1, f. 1. doc. 154 (recording overnight appearance of graffiti on several Ferrara buildings stating “Long Live Mussolini–Down with the Jews,” which was erased the next day but later reappeared in other locations). Interestingly, given the course of later events, the Prefect’s Report denies the existence of a serious Jewish problem in Ferrara, and says that the graffiti incident had been attributed little importance (scarsa importanza) by the local population. Ibid., 4. On the activities of Bassani, already a young man in the Race Laws era, see generally Alessandro Roveri, Giorgio Bassani e l’antifascismo (1936–43) (Ferrara: 2G Editrice, 2002). Together with quasi-autobiographical works such as Il Giardino dei Finzi-Contini, Bassani addressed the Race Laws in poems, essays, and other fora, emphasizing the sense of isolation (of Jews and other outsiders) that is at the core his literary work. See, e.g., “Le leggi razziali,” Accademia Nazionale dei Lincei: Consequenze culturali delle leggi razziali in Italia (May 11, 1989 (1990), 41 (poem read by Bassani at convention discussing cultural consequences of the Race Laws). On the Jewish school in Ferrara, where Bassani taught following enactment of the Race Laws, see Anna Maria Quarzi, Una scuola nella guerra: La scuola media israelitica di Via Vignatagliata (Ferrara: Istituto di Storia Contemporanea, 1996), 79. On antisemitic violence before September 1943, see generally M. Sarfatti, note 39, 200–7, 201 n. 327. Sarfatti cites a number of instances of nonlethal violence in Ferrara, including beatings, slappings, and other incidents, that either preceded or accompanied the synagogue assault. Ibid. A disproportionate amount of the violence described by Sarfatti appears to have taken place in the northeastern portion of the country, notably Trieste and Ferrara but also including Venice, Padova, and other cities. Some observers have suggested that the intensity of anti-Jewish persecutions was especially high in this area, which is geographically close to Germany and Austria and arguably reflects a stronger central European influence. It is also true that the northeast was among the last areas evacuated by the Germans in 1945, allowing correspondingly more time to carry out deportations and murders in the 1943–5 period.

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Change and Continuity: Anti-Jewish Measures before and after September 1943 The issue of antisemitic violence brings to mind the question of timing, specifically, the relationship between events before and after September 8, 1943. Historians have traditionally distinguished between the Race Laws or Italian phase until 1943 and the Holocaust or German phase thereafter, the former having been marked by economic and social persecution and the latter by physical extermination. In the extreme version this has expressed itself in the notion of an absolute discontinuity between the two eras, complete with different terminology (fascisti vs. “nazifascisti”) and different postwar legal regimes for dealing with victims of the two eras. Recent scholars (notably Michele Sarfatti) have questioned this analysis, noting the continuity of bureaucratic efforts and documentary evidence of Mussolini’s plans for arrest and internment of Italian Jews even before the German occupation.67 But the imagery remains attractive, appearing as it does to diminish Italian responsibility for the worst excesses of the period, and – if intellectually dubious – retains a popular hold. That Sarfatti is correct – that there was an essential continuity between the Race Laws and Holocaust eras notwithstanding important differences between them – is best observed at the local level. The continuity is demonstrable on both a formal and a substantive level. In a formal sense there is simply no clear line between bureaucratic decisions before September 1943 and those which came after that date. In Ferrara, as at the national level, the files of the Prefect, Police Chief, and other agencies are continuous before and after 1943, often with little if any indication of intervening events. For example, the Prefect’s files on elimination of Jewish names from the Ferrara telephone directory continue without interruption from May to December 1943, despite the fall of Mussolini, the Badoglio period, and the beginning of the German occupation coupled with initiation of the R.S.I. (Sal`o) regime in the intervening months.68 The campaign against Jewish authors and publishers was likewise continuous across the 1938–45 period, although there is evidence of harsher application, including the compilation of a more systematic list of undesirable authors, after 1943.69 67 68

69

See ibid. 185–87 (citing plans for the large-scale internment of Italian Jews which were aborted by Mussolini’s fall from power in July 1943). This issue is discussed further below. See Letter from T.I.M.O. (Societ`a Telefoni Italia Media Orientale) to Prefect of Ferrara, May 2, 1943: Abbonati ebrei e Ditte ebraiche da togliere dall’elenco abbonati di telefono (submitting draft list of new telephone subscribers with request to indicate the Jewish names); Memorandum from Prefect of Ferrara to T.I.M.O. Management, Sept. 2, 1943, N. 1758: Indirizzi delle ditte industriali da eliminare dagli elenchi (providing list of industrial firms to be cancelled from the telephone directory); Memorandum from Ufficio provinciale delle corporazioni (Ferrara) to Prefect of Ferrara, Dec. 30, 1943, N. 10 Ris: Inserzione nominativi di razza ebraica dell’elenco telefonico (identifying Jewish-named individual as sole proprietor of Ferrara company), all AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 2, f. 29, doc. 125. See notes 36–40 and accompanying text.

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Nor is there always a substantive discontinuity between the pre- and post1943 eras. This is most clear in the area of information. While there were no systematic deportations of Jews before 1943, information gathered in this period – from census reports, taxpayer lists, and regular prefect and police reports, together with denunciations and other private sources – provided a detailed portrait of the Jewish community that was to prove invaluable in identifying and arresting Jews in the period following the German occupation.70 Liliana Picciotto Fargion has demonstrated that about half of these arrests, at a national level, were conducted by Italian or mixed German-Italian rather than exclusively German patrols. Even when Germans conducted the arrests, they were typically based on information garnered from Italian sources.71 The Ferrara archives suggest a similar continuity at the local level, although there is an undeniable change in tone and emphasis after 1943, including significant conflicts between the German and Italian authorities and a new and substantially more vigorous anti-Jewish policy, with respect to both persons and property, than in the preceding period.72 70

71

72

For examples of the detailed record-keeping regarding Jewish people and property in Ferrara in the pre-1943 period, see, e.g., AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 2, f. 15, doc. 1–2: Censimento ebrei – Dipendenti consorsi ed enti locali (communications with public and quasi-public entities, in conjunction with the national Jewish census, to ensure that none employ any Jews); AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 1, f. 11, doc. 10: Contribuenti di razza ebraica (containing a list of 259 Jews holding real property in Ferrara with estimated rental value of each property and taxes paid on that property); AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 2, f. 21: “Accertamento razza – Nati da matrimonio misto” (containing individual determinations of racial status together with regular “situation” reports listing number of discriminati and non-discriminati Jews, progress of determinations regarding uncertain cases, and lists of Jews already punished or warned for security reasons). The contents of one such report, dated March 23, 1943, are discussed in greater detail text accompanying note 27. The census itself was concluded in 1938 and included information on the name, parents’ names, date and place of birth, citizenship, and profession of 703 (740 in the province) Ferrara Jews. See Liliana Picciotto Fargion, “The Shoah in Italy: Its History and Characteristics,” in Jews in Italy under Fascist and Nazi Rule: 1922–1945, ed. Joshua D. Zimmerman (Cambridge: Cambridge University Press, 2005), 209–23. See generally AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 3, f. 37: “Operazioni pagamenti appartenienti razza ebraica; Sequestro beni ebraici” (files relating to confiscation of Jewish property in Ferrara Dec. 1943 – Aug. 1944). As an example of German-Italian differences, the files suggest that German soldiers were in the habit of unilaterally seizing Jewish property in Ferrara with or without notice, a situation which inevitably led to confrontations with the nominally sovereign Italian (RSI) authorities. See, e.g., Memorandum from Capo della Provincia to Comandante Nucleo P.T.I. (Guardia di Finanza), Apr. 19, 1944, N. 713: Beni degli ebrei sequestrati, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 3, f. 37, doc. 024 (describing the unannounced arrival of several German soldiers and their subsequent confiscation of the home of the Jew Zamorani and requesting information as to whether the soldiers were authorized to take such action). Differences of this type should not obscure the essential cooperation between Italian and German authorities which was vital to the success of the new policies including large-scale deportations of Jewish persons and systematic confiscation of Jewish property, two processes which – if theoretically distinct – as a

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The gap between pre- and post-1943 antisemitic policies is also bridged, if only in part, by the precettazione al lavoro (compulsory labor brigades) introduced in 1942.73 The new provisions were enforced by the Ferrara Prefect and Police offices with what appears to be the same slavishness to central dictates, if not necessarily efficiency, that applied to previous rules.74 Even when imperfectly enforced, the rules remain significant because they required even more rigorous record-keeping and marked a transition from discrimination to physical separation and (eventually) deportation of individual Jews, in which local authorities were also to prove important actors. The periodic outbreaks of antisemitic violence in pre-1943 Ferrara – a direct consequence of antisemitic agitation and propaganda – constitute a further intermediate phase between “mere” discrimination and direct physical action.75 Although much of this violence was arguably symbolic in nature, and although the authorities sometimes watched it with a wary eye, it set a precedent for extra-legal activity and conditioned the population for more extreme measures. It must be cautioned that continuity does not mean inevitability. Nothing in the pre-1943 Race Laws made it inevitable that the Germans would occupy northern Italy and import their particular brand of exterminationist antisemitic policy to the region. My point is not to deny possible alternatives, but to argue that what actually did happen exhibits substantial continuity on an ideological

73

74

75

practical matter often went hand-in-hand. Thus a memorandum from the Chief of Province to the Provincial Finance Officer and the Ferrara police chief in February 1944, while ostensibly devoted to the confiscation of Jewish property in the town, assigns to the police headquarters the responsibility “to construct a unit [nucleo] that will take care of the arrest of Jews still free in the provincial capital and the province, arresting whomever belongs or has belonged to the Jewish race. . . . This group may, indeed must, avail itself of all possible information to reach people and property in all of the provincial territory and indicate how much has been transferred out of the province.” Memorandum from Capo della Provincia to Questore di Ferrara and Intendente di Finanza Ferrara, Feb. 1, 1944, Sequestro beni ebraici, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 3, f. 37, Div. Gab. 223, doc. 045. It must be noted that the same document suggests significant delays in the confiscation process and further suggests that, as of February 1944, relatively little Jewish property in Ferrara had been successfully taken. Ibid. On the deportations from Ferrara, see generally M. Provasi, note 8, at 113–16. See M. Sarfatti, Gli ebrei nell’Italia fascista: Vicende identita` persecuzione 183–87. A more radical proposal for the “total mobilization” of Jewish labor failed to materialize with the fall of Mussolini in July 1943. See, e.g., Memorandum from Demorazza to Prefects’ Offices, Aug. 5, 1942, N. 534/30R: Precettazione degli ebrei a scopo di lavoro, AdS Fe, Prefettura di Ferrara: Gabinetto-Cat. 30 “EBREI”, b. 3. f. 35, doc. 030 (instructions to prefects on rules for application of the work brigades [precettazione] program); Elenco degli ebrei di nazionalit`a italiana e straniera appartenti alle classi del 1907 al 1925 inclusa, da mobilitare per il servizio del lavoro obbligatorio – sesso maschile (List of Jews of Italian and foreign nationality born from 1907 through 1925, to be mobilized for obligatory labor service (masculine), AdS Fe, Prefettura di Ferrara: GabinettoCat. 30 “EBREI”, b. 3, f. 35, doc. 031 (undated list in Ferrara Archives including 71 Jews to be called up under the program). See text accompanying notes 60–6.

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and a practical level: ideologically, because the social and economic exclusion of the Jews from Italian society paved the way for their physical isolation, and practically, because information and habits acquired in the earlier period made immeasurably easier measures undertaken in the latter. At the national level, it is perhaps possible to overlook or minimize this functional continuity. At the local level, it is unmistakable.76 On the Significance of Local Differences: Ferrara, Turin, and Other Italian Cities Studying one city in depth carries the danger that the location studied will be unrepresentative in one or more ways. For reasons of time and space, I was unable to conduct an equivalent study in all Italian cities. However, I did devote a significant amount of time to one additional place: Turin, a large industrial city77 in the Piedmont region of northwest Italy, currently the fourth largest in Italy and (after Milan) the second most important industrial center. Together with the work of other scholars,78 this research provides at least some opportunity for comparison. Turin differs from Ferrara in numerous respects. Along with its larger size and greater industrial prominence (notably the Fiat automobile company), the city has a long history as an intellectual and cultural center, with Jewish authors – Carlo and Primo Levi, Natalia Ginzburg, and others – playing an important role, especially in the postwar period. Turin was the capital of the Kingdom of Piedmont-Sardinia, which spearheaded Italian unification, and the first capital of a united Italy: as such it retains a strong independent streak and (perhaps) a sense of superiority or at very least distance with respect to the rest of the country. Reflecting this independent streak, and perhaps the geographic distance from Rome, the antifascist resistance was unusually well developed in Turin and its surrounding areas, although the city also had a large and vocal Fascist contingent. The Jewish community of Turin also differs from that in Ferrara and most Italian cities in several respects. The first is size. Although there are today fewer than a thousand Jews in the city, in the late 1930s, there were (depending on the measure used) between thirty-eight and forty-five hundred, making it one of the three largest communities (with Rome and Trieste) then in the country. The composition of the community was also different, including a larger percentage of working class and foreign-born Jews but also a not insignificant number of 76

77 78

For the record of one prominent Jewish family in Ferrara during the Holocaust period, see ` survived the war although several note 10. Paolo Ravenna and his father, the former podesta, relatives did not. For a gripping treatment of resistance and reprisals in Ferrara, albeit focusing on broader “Italian” rather than specifically Jewish issues, see Antonella Guarnieri, Ferrara 1943: Nuova interpretazione della lunga notte (2G Libri, 2005). The population was between 600,000 and 700,000 in the Race Laws era. It peaked at about 1.2 million in the 1970s and has dipped below 1 million since. See note 80.

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wealthy or upper middle class persons, who were to become a convenient target during the Race Laws era. In particular, Jews played a significant role in commerce and the professions and owned a disproportionate if still small aggregate percentage of real estate, consisting primarily of urban properties in contrast to the rural interests held by some Ferrara Jews. The Turin Jews, and especially the upper classes, were also distinctive in their culture and attitudes. Although as in Ferrara many had Iberian ancestry, the Piedmontese Jews had over the years become a rather cohesive community, with their own language (a Jewish-influenced version of the Piedmontese dialect) and cultural traditions.79 Owing to French influence and the relatively liberal attitudes of the Savoy monarchs, they had left the ghettos a generation or more ahead of many Italian Jews and tended to take a measure of political and social equality more or less for granted. Perhaps for this reason, the Turin Jews were responsible for a disproportionate percentage of the formal challenges to the Race Laws and their enforcement, together with a large number of Resistance figures. It must be noted, with sadness, that these efforts were not entirely successful: About four hundred Jews from Turin and surrounding areas were deported, of whom the great majority did not survive the war. Perhaps owing to the high degree of self-consciousness among the Turin Jews, there is an unusual amount of documentation regarding the Race Laws and Holocaust in the city. A series of books by Prof. Fabio Levi provide a rigorous scholarly treatment, while literary descriptions of Jewish life in Turin by Primo Levi and others – mostly written after the war but describing life before it – are also plentiful.80 (The introductory chapter of The Periodic Table is especially noteworthy for its sardonic treatment of Piedmontese Jewish culture.) While not ignoring these sources, I focused my own attention, as in Ferrara, on official documents notably the Prefettura (Prefect) archives, which provide an original, day-to-day account of the application of the racial laws.81 In evaluating the Turin archives, many themes are similar to those observed in Ferrara. These include the interplay of local and national factors; the use of legal and extra-legal methods against the Jewish community; and the essential 79 80

81

Turin is by far the largest city, Jewish and otherwise, in the Piedmont region. See L’ebreo in oggetto: l’applicazione della normativa antiebraica a Torino 1938–1943, ed. Fabio Levi (Turin: S. Zamorani, 1991); Le case e le cose: la persecuzione degli ebrei torinesi nelle carte dell’EGELI 1938–45, ed. Fabio Levi (Turin: Einaudi, 1998). The literary reference is to Primo Levi, Il Sistema Periodico (Turin: Einaudi, 1975), 3–29. Archivio di Stato Torino, Prefettura di Torino: Gabinetto, b. 561: Difesa della Razza. (hereinafter Ads To Pref.). My archival research was supplemented by research at the Istituto piemontese per la storia della resistenza e della societ`a contemporanea (ISTORETO), which has a function similar to that of the ISCOFE in Ferrara; conversations with local figures; and the secondary sources cited above. Avvocato Guido Fubini, for many years chief lawyer of the Italian Jewish community and author of several works on the Race Laws and Holocaust era, was an especially helpful source.

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continuity between the Race Laws and Holocaust periods, which is even more visible in a large urban center. Yet significant differences are also apparent. A first difference is the routine and bureaucratic nature of enforcement, with more formal methods of decision-making replacing the largely ad hoc procedures in Ferrara and a somewhat higher level of discretion exercised by local decision makers. The subject matter also differs in important respects. Whereas in Ferrara the emphasis was largely on individual matters, in Turin greater attention was devoted to businesses, professions, and the issue of foreign Jews, both in internal decision making and in external correspondences. The presence of a significant number of foreign-born Jews, who were subject to a different and generally harsher legal regime in many respects, was a particularly important difference.82 A second difference relates to public opinion and its expression. While in Ferrara the majority of denunciations and other reports were individual and seemingly random in nature, in Turin, organizations – Fascist syndicates, professional unions, newspapers – often took the lead, so that at times there appeared to be almost a three-sided procedure involving the Jews, the government bureaucracy, and organized or semi-organized groups urging more aggressive and rapid enforcement.83 This difference reflects the size of the city, but also a higher degree of ideological awareness, with the “Jewish problem” one of several issues that were contested between various factions throughout the relevant era. A third and final difference relates to the Jews themselves. While in Ferrara there was relatively little organized resistance to the Race Laws, in Turin such action was more common, ranging from simple administrative petitions or litigation to a variety of increasingly sophisticated strategies, often with the assistance of sympathetic non-Jews, designed to avoid or limit the effect of the racial provisions.84 As one might expect, these efforts tended to be concentrated in the middle- to upper-class portions of the Jewish community and were of 82

83

84

See, e.g., R. Questura di Torino, Memorandum to S.E. Il Prefetto di Torino, Sept. 23, 1939, Prot. N. 13898, Oggetto: Ebrei stranieri, AdS To Pref (listing foreign Jews in province including 203 who have left the country, 45 with the right to remain, 53 who have applied for extensions from expulsion, and 20 in transit). In the post-1943 era, Turin was large enough to merit creation of its own Regional Center for the Defense of the Race, although the city fell to the Allies before it had time to accomplish much. See, e.g., Partito Nazionale Fascista: Federazione dei Fasci di Combattimento Torino: Il Segretario Federale, Memorandum to S.E. Il Prefetto Torino, Oct. 17, 1939, Prot. N. 30607/3, Oggeto: Ebrei Discriminati, AdS To Pref (asking Prefect to forward a list of discriminati Jews so that the Party could undertake appropriate surveillance measures). See, e.g., Letter to His Excellency the Prefect from Prof. Giorgio Falco, Apr. 10, 1942, AdS To Pref (asking permission to continue using public libraries to complete research on various subjects). The author, whose wife and daughters were not considered Jewish, had been a professor at the University of Turin and dismissed pursuant to the Race Laws. There is no indication as to whether the request was granted. The issue of Jewish resistance is discussed in Chapter Six, and judicial decisions (many originating in Turin) in Chapter Four.

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less significance for the working class population. The efforts did not usually succeed, and they generated a forceful, negative response on the part of less sympathetic judges, bureaucrats, and Fascist organizations. But they remain an important part of the story, and suggest the importance of local differences in evaluating and understanding the Race Laws. The picture of Turin that emerges from the Prefect archives is by and large consistent with that described by previous scholars, who have considered the issue in greater depth. The most comprehensive treatment is found in a pair of books edited by Fabio Levi, a professor at the University of Turin, and including essays by Levi, Daniela Adorni, Giuseppe Genovese, and other authors. The first of these, L’ebreo in oggetto (The Jew in Question), focuses primarily on the period 1938–43, while the second, Le case e le cose (The Houses and the Things), emphasizes confiscation of Jewish property as reflected in the EGELI archives. Taken together, the two books paint a rather depressing picture of the Race Laws era in Turin, which were enforced with dreary uniformity if varying degrees of enthusiasm and came to be seen as routine by both Jews and government officials even before the onset of the German occupation in the fall of 1943. The involvement of all levels of government, including the police and judiciary as well as the public administration, and the gradual increase in severity with the passage of time are important themes of these studies. The attention paid to business as well as personal issues, even before the outright confiscations of the post-1943 era, is another recurring motif.85 An examination of the Race Laws in Ferrara and Turin thus reveals a number of consistent themes but also substantial differences in subject matter, public opinion, and local Jewish response. These result, in varying measures, from the differing size and composition of the relevant communities; from differences in regional history and culture; and, perhaps, from more random or quirky factors, like proximity to the border (accounting in part for the large number of foreign Jews in Turin) and the disproportionate role of Turin Jewish intellectuals. Differing allocation of enforcement resources, and differing levels of organization in the Jewish (and non-Jewish) communities, were also important factors. A similarly mixed pattern is visible in studies conducted in other regions. While some of these differences relate to deep-seated historical tendencies, many – like the differences observed above – involve more immediate factors such as the size and wealth of the Jewish community, the level of commercial competition, and the organization and priorities of the local Fascist Party. For 85

See Daniela Adorni, “Modi e luoghi della persecuzione (1938–1943),” 39–117 (describing enforcement of the antisemitic norms in business, real estate and the professions, with additional notes on the local courts (Tribunale), work brigades, and the domestici issue), and Fabio Levi, “Il signor questore e gli ebrei: Dalle relazioni periodiche del questore di Torino al capo della Polizia (1938–1942),” 147–157 (excerpts from local police reports), in L’ebreo in oggetto, ed. F. Levi.

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example, Silva Bon’s excellent study of the Race Laws in Trieste notes the effects of that city’s relatively large Jewish population and Austrian political heritage, which pointed toward increased antisemitism, but also the negative response of portions of the local population to the persecutions, and sometimes vigorous efforts by the Jewish community to defend itself.86 A two-volume work on Tuscany, edited by Enzo Collotti, notes the significance of antisemitic campaigns in journalism and the universities in a region historically perceived as an intellectual and cultural center.87 While similar issues – the balance between national and local considerations, the tension between legal and extra-legal methods, and the question of continuity/discontinuity between the pre- and post-1943 eras – are at play in all cities, the outcomes are often different, and the “feel” if not the essence of the Race Laws differs considerably between them. Local Differences and National Trends: Identifying an “Italian” Response to the Race Laws The Construction of Popular Attitudes The experience of Ferrara, Turin, and other cities above permits us to reach some tentative conclusions regarding the effect of local circumstances on the Race Laws. Because of the rather rigid central control over interpretation of the laws, substantive decisions varied relatively little between the cities. But the “look” and “feel” of the laws was different because of various factors, including but not limited to the size and location of the city in question; the allocation of enforcement resources; and the behavior of the local Jewish community in resisting, or not resisting, the ongoing persecutions. In all cities, the laws as written were complemented by an ongoing pattern of nonlegal or extralegal persecution of the Jews, although this too took somewhat different forms, involving a rather systematic campaign by Fascist organizations in Turin and Trieste and somewhat more sporadic activity, albeit including violence, in Ferrara. In no city was there a bright line between the Race Laws and Holocaust eras, but the progression from one era to another depended upon local factors and often took different forms. The experience of the various cities is also significant with respect to popular attitudes. While there were undoubtedly differences in the type and extent of antisemitism in each city, what might be called structural factors (composition of the Jewish community, organization of the local Fascist party, nature and 86

87

` persecuzione, risposte (Gorizia: Editrice Silva Bon, Gli ebrei a Trieste 1930–1945: Identita, Goriziana, 2000). See also Maura E. Hametz, “The Ambivalence of Italian Antisemitism: Fascism, Nationalism, and Racism in Trieste,” Holocaust and Genocide Studies 16(3) 376–401 (2002). Razza e fascismo: La persecuzione contro gli ebrei in toscana (1938–1943), ed. Enzo Collati (Florence: Giunta, 1999). Similar volumes exist for Romagna, the Trentino, and numerous other regions.

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extent of commercial competition) appear to have been as or more important than an inherently “high” or “low” level of anti-Jewish feeling in the city. Indeed, it is not entirely clear that a background or neutral level of antisemitism, independent of these other factors, can be identified at all. All cities had their share of antisemites and (usually rather fewer) Jewish sympathizers; but the relationship between them played out in various different ways. This pattern of complex, even ambivalent responses – of behavior that reflects the interaction of various impulses rather than a simple continuum of pro- or anti-Jewish attitudes – is familiar to those who have studied parallel events in other European countries. For example, Detlev Peukert, in evaluating responses to the Nazi regime in Germany, suggests a matrix involving individual attitudes and organizational context. The more general the individual’s criticism of the regime, and the more public the institutional context, the more likely a person’s private doubts were to translate themselves into active resistance.88 A similar graph for Italy might include Peukert’s factors together with further items that would require a third or even fourth or fifth dimension. In addition to organizational context and attitude toward the Fascist regime, one would have to make room for geographic differences, attitudes within and toward the Catholic Church, economic self-interest, and, arguably, the time period in question, with the progress from peace to war at first strengthening but eventually weakening support for the regime’s policies or (more accurately) polarizing the population between a minority of ever-more virulent antisemites and a majority to whom this appeal became gradually less effective. The behavior of specific professions (lawyers, military, etc.) was further conditioned by attitudes, beliefs, and institutional structures peculiar to the profession.89 Attitudes toward Jews obviously played a role, but one that was conditioned by and, I suspect, frequently overwhelmed by one or another of the remaining factors. Many of the same factors were present in Germany, while others (notably geography) appear to be especially prominent in an Italian context. The interaction of factors and the persistence of local differences do not mean that it is impossible to identify any national patterns or that there are no differences between Italy and other countries. Perhaps the best description is this: an overall pattern of what might be called studied indifference, punctuated by occasional expressions of sympathy and somewhat more frequent outbursts of hostility, together with a disturbing though not universal tendency to take personal advantage of (sfruttare) Jewish losses, notably in the business area. 88 89

Peukert, Inside Nazi Germany, 83. For example, the behavior of lawyers and judges appears to have been conditioned by legal philosophy (natural law vs. positivism, liberal/individualist vs. conservative/statist outlook) as well as individual temperament, see Chapter Four, while the military was significantly influenced by its pre-Fascist, royalist leanings. See Jonathan Steinberg, All or Nothing: The Axis and the Holocaust 1941–43 (London: Routledge, 1990), 240–1. The issue of national differences and the Holocaust is discussed further in Chapter Three.

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(I once heard an Italian scholar refer to this pattern as profonda indifferenza – profound indifference – a seeming oxymoron but that captures the spirit of the times better than anything else I have heard.) These behaviors were plainly inconsistent with the notion of the “good Italian,” as described in previous chapters, or the idea that Italians are inherently less antisemitic than their northern European neighbors.90 Yet neither were they uniformly negative – and antisemitism does appear to have occupied a somewhat less central place in the Italian consciousness that it occupied in Germany and some other countries. Perhaps the most salient conclusion is the difficulty of making generalizations at all, when so much of people’s reaction varied depending upon the factors identified above, and was filtered through organizational structures that make it difficult or impossible to trace individual attitudes to specific outcomes. A National Perspective on Popular Attitudes: The Segreteria Letters Both hostility and indifference, together with rarer but not insignificant demonstrations of sympathy, are on display in the Segreteria Particolare del Duce, which contains the numerous letters sent to Mussolini by ordinary Italian citizens, some of which received personal responses but most of which were referred to other government officials or simply left unanswered. The correspondences are significant less for their effect on government policy, which appears to have been marginal, than for the window they provide on Italian thinking which – while inevitably subject to a degree of self-censorship – shines through in surprising diversity. Not surprisingly, the largest number of letters express support for the government and its antisemitic policy, not infrequently urging that the policy be pursued with yet greater severity. A particularly salient example is a letter from Prof. Domenico B_____ at the University of Bari, written in August of 1938, and 90

The issue of comparative behavior in the Holocaust is an extremely sensitive one, given the different political and military situations that obtained in the various countries and the difficulty of separating actual facts from prevailing national stereotypes. Thus, while most non-Italian observers have tended to attribute rather better behavior to Italians than, for example, Germans, Poles, or even French citizens in this period, it is sometimes unclear how closely they focus on the Italian situation: when they do so, it tends to be on the post-1943 period and (frequently) on Italian-occupied territories, which were under the control of the Italian army rather than the domestic bureaucracies responsible for Italy itself. There is also, perhaps, a certain desensitizing process by which scholars who have studied the areas of mass killings in east and central Europe come to regard Italy, with its smaller Jewish community and more ambiguous mix of antiand philo-semitic tendencies, as almost idyllic by comparison. For an unusually sophisticated effort at comparison between German and Italian behavior, emphasizing events outside Italy but with some discussion of the internal dynamic as well peninsula, see Steinberg, All or Nothing, pp. 220–41 (suggesting that a combination of historical, ideological, and structural differences between the two countries accounted for differing behavior in this period); but see Davide Rodogno, Fascism’s European Empire: Italian Occupation during the Second World War (Cambridge: Cambridge University Press, 2006), 363–4 (suggesting Steinberg may have overstated certain aspects of Italian policy toward Jews in occupied territories).

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urging that the Jews being completely excluded from public activities rather than being allowed a proportionate (1/1,000) ratio as some had proposed. The professor also urged that the citizenship law be amended to clarify that Jews were residents (conviventi) in Italy rather than full-scale componenti of the national entity.91 Other letters contain denunciations of individual Jews who had thus far avoided the Race Laws or whose behavior was not covered by them.92 One correspondent, in a handwritten letter addressed only to “Duce/Roma,” got right to the point: “Duce, ti prego, sii inesorabile coi Giudei italiani” (Duce, I beg you, be relentless with the Italian kikes”), he or she wrote, signing the letter without apparent irony: “A Christian.”93 More encouraging, if morally ambiguous, were letters asking favorable treatment of individual Jews deemed indispensable to a particular office or enterprise. No less a figure than the President of Fiat, Senator Giovanni Agnelli, wrote to Osvaldo Sebastiani, the Duce’s special secretary, asking that an exemption be made for one Giuseppe DeBenedetti, who served as chief executive (amministratore delegato) of the Vetrocoke industrial corporation and was said to be essential to its success. Also noteworthy is the encouraging if ambiguous response, Sebastiani relating the Duce’s opinion that DeBenedetti can “stay calm” (stare tranquillo) despite the impending Race Laws.94 Although clearly preferable to denunciations, this genre of “good Jew” letters implicitly accepted the regime’s racial policy, calling for its relaxation only in exceptional cases.95 91

92

93 94

95

Letter from Prof. Domenico B_______ Universit`a degli Studi di Bari, Aug. 8, 1938, Segreteria Particolare del Capo del Governo: Carteggio Riservato [hereinafter SPD], b. 146. In accordance with standard practice I have abbreviated the names of letter writers where the contents might be embarrassing and the individual is not already identifiable from the context. Denunciations ranged from the individual to the group and the simple to the creative. See, e.g., SPD b. 143, f. 264, Aug. 18, 1938 (record of correspondence from Renato M_______ who “says that the director of the Local Railways Corporation, Ing. Salvatore P______, of Jewish race and religion, has always demonstrated his opposition to Fascism;” cf. SPD b. 146, Aug. 13, 1940 (anonymous tip “concerning the absolute predominance of Jews in the commercial textile and variety clothing sector in the major commercial centers of Roma [with] related conclusions and proposals”). Anonymous letter (undated), SPD b. 141, f. 13. Letter from Giovanni Agnelli, President of FIAT, to Comm. Dr. Osvaldo Sebastiani, Segretario Particolare di S.E. il Capo del Governo, Sept. 22, 1938, SPD b. 141, f. 78 (requesting that DeBenedetti be permitted to retain his position); Letter from Sebastiani to Agnelli, Sept. 27, 1938, SPD b. 141, f. 78 (“the Duce, taking note of your [letter] of 22 September, has authorized me to tell you that Ing. De Benedetti can remain calm.”) Not everyone was happy with this response: the same file also contains a memorandum from the Secretary of the Fascist Party, Achille Starace, to Sebastiani, written two days later (Sept. 29), saying that Starace had learned of the reassurance and reminding his correspondent rather coldly that “DeBenedetti is a Jew.” The compromises inherent in being regarded as a “good Jew” are suggested by another document concerning a certain Jung or Iung, commended for telling his coworkers at the I.R.I. conglomerate that the Italian Jews “must accept [the Race Laws] like good soldiers, in the certainty that Mussolini cannot be wrong [non puo` sbagliare], and that the antisemitic provisions conceal a very important goal for the good of the Nation.” According to the document, the

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Outright protests, although rarer, did exist. Like hostile correspondences, these ran the gamut from general to specific and reasoned to emotional in nature. Thus, a letter from one Carlo A_______ in Palermo, objects to proposals for the expulsion and/or ostracism of Italian Jews, which, he says, “[are] not welcomed by the sound majority [sana maggioranza] of our people” and “[are] not compatible with our traditions.” The letter then proceeds to list a number of Jews that the author has met in his work for Assicurazioni Generali, a prominent insurance company, and who seem to him particularly worthy of praise.96 Still more direct and forceful is an anonymous letter from “a Black Shirt [Camicia nera] in the purest sense of the word,” who rather presciently suggests that by adopting German-style antisemitism “we are going to lose our precious independence [nostra bella indipendenza] and one day we will become aware of the consequences.”97 The Segreteria files also contain evidence of a mixed response on the part of the silent majority of the population. Thus, a note from the P.S. (Pubblica Sicurezza) in September 1938 states that the antisemitic campaign “is not meeting with too much sympathy among the Genoese public,” while a similar note indicates that “in Ivrea [near the Swiss border] the provisions taken against the Jews are openly disapproved of [biasimati] by the majority of the population.”98 It should be noted that these reports, like many others in this section, date from the early days of the Race Laws, in some cases before the laws were codified: The general tendency was toward harsher enforcement and (perhaps) less tolerance for dissent as time went on. Conclusion: History, Memory, and the Limits of the Resistance/Collaboration Dichotomy Postwar mythology fares no better at a local than at a national level. Among the many myths dispelled are the belief that all Italians suffered equally under Fascism; that the great majority of Italians cooperated in resisting the nazifascisti and the allegedly alien policies they brought with them (the very term nazifascisti implies a substantial if not total discontinuity between the

96

97 98

I.R.I. employees who heard Jung’s presentation “were left admiring and moved.” Anonymous note contained in SPD files, Nov. 23, 1938, SPD b. 142, f. 157 . The reference may have been to Guido Jung, a Party member and former Minister of Finance, although the file does not specify. Letter from Carlo A_______ to Osvaldo Sebastiani, Segretario Particolare di S.E. Il Capo di Governo, Aug. 5, 1938, SPD b. 141 [fascicoli nominativi]. The Race Laws did not in fact provide for the expulsion of Italian as opposed to foreign Jews although deportations were undertaken in the post-1943 period; see later in this chapter. “Sana maggioranza” can also be read as “healthy” or “sane” majority although these appear less likely meanings. Anonymous and undated letter, SPD b. 146, f. 402. Surrounding correspondences suggest that the letter was sent in the summer or fall of 1938. Note from P.S. Ivrea, Sept. 10, 1938, SPD b. 146, f. 402; Note from P.S. Genova, Aug. 8 1938, SPD b. 146, f. 402.

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pre- and post-1943 eras and is itself part of this mythology); and, indeed, the very concept of the resistance/collaboration dichotomy and the absolute conflict between good and evil it suggests. Rather than two diametrically opposed camps, there were numerous shades of behavior and various types of resistance (passive and active, violent and nonviolent) that are difficult to map along one single axis. While deflating postwar mythology the chapter also shows the danger of generalizations of any kind. There was no single “Italian” response to the Race Laws, but a series of infinitely varied responses depending upon the time, place, individual, and the provision in question. Memory may be unitary, but history is infinitely varied: a useful reminder to those – like the Fascists themselves – who wish to apply it to serve their own ends.

6 From Perpetrators to Victims: The Question of Jewish Responses

Resistance, Collaboration, Amidah: A Primer on Jewish Behavior During the Holocaust The preceding chapters have relied primarily on perpetrator documents, that is, documents prepared by the creators/enforcers of the Race Laws rather than their intended victims. Yet, a comprehensive treatment cannot avoid discussing the victims. This is true for theoretical and practical reasons: to treat the Jews as passive observers, or to exclude them from the definition of “Italians” altogether, dehumanizes them and implicitly concedes the justice of the Fascist cause. Yet in addressing this issue one encounters a wide range of methodological issues, for which some additional background – and a brief digression on Holocaust era scholarship outside Italy – are necessary. One of the greatest difficulties in Holocaust scholarship is providing an adequate voice to victims as opposed to perpetrators. The perpetrators left a huge volume of documents which – while surely making the work of Holocaust deniers more difficult – means that the story will tend to be told from their perspective. By contrast, the victims were largely disorganized and, when they did fight back, for reasons of time or safety frequently preferred to put as little as they could in written form. There is also a sense among some historians that victim testimonies, especially those taken after the war, are unreliable in describing prior events. For these and other reasons, much of the early history of the Holocaust was based on perpetrator documents, and the victims’ perspective has only recently established itself in the scholarly mainstream.1

1

For a sense of the change in attitudes toward victim testimonies, see Raul Hilberg, The Destruction of the European Jews, 3rd ed. (Teaneck: Holmes & Meier, 2003), xv (preface to 1961 ed.) (“Not much will be read here about the victims. The focused is placed on the perpetrators.”); cf. Yehuda Bauer, Rethinking the Holocaust (New Haven: Yale University Press, 2001), 25

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The issue of perspective is especially important as it relates to Jewish resistance. While understandable at times, a reliance on perpetrator documents may tend to make Jews appear as passive, cowardly, and even collaborating in their own fate. Exclusion of victims’ perspective may likewise tend to dilute the Jewish nature of the catastrophe, which comes to be seen instead as a subpart of German, Russian, or another country’s history. Because a relatively high percentage of Italian Jews survived the war – and because the perpetrators and victims spoke the same language – Italian scholarship has been characterized by a somewhat better balance between perpetrator and victim sources than that in other countries, but the potential for imbalance remains.2 Perhaps because of its reliance on perpetrator sources, early Holocaust scholarship was generally skeptical regarding the issue of Jewish resistance. The most important early work on the subject, Raul Hilberg’s book The Destruction of the European Jews, suggested that armed Jewish resistance to the Holocaust was sporadic in nature and did not seriously interfere with the planning and execution of the extermination program. Hilberg suggested a number of reasons for this outcome, emphasizing the lack of Jewish military tradition and the experience with previous persecutions which had ultimately been fended off or at least survived without resort to armed force.3 Hilberg’s definition of resistance implicitly emphasized the armed variety and – understandably for a general work on the Holocaust – devoted only limited attention to Italy. Not surprisingly, Hilberg’s thesis has been the subject of strong disagreements, with subsequent writers stressing the various instances of armed struggle (most notably in the Warsaw Ghetto) but also the role of nonviolent resistance, as demonstrated by activities such as the failure to comply with deportation orders, the forging of documents, and even the keeping of surreptitious diaries or other records to preserve the memory of that which had been destroyed. To describe such activities, Israeli scholars developed the term Amidah, a Hebrew word which means literally “standing up” or (more figuratively) “steadfastness” and also happens to be the name of the central prayer in morning, afternoon, and evening services. In shifting the emphasis from armed confrontation to alternate forms of resistance, these scholars tended to reach a somewhat more positive conclusion regarding the Jewish response in extremis,

2 3

(“Because the [written] documentation is largely one-sided, that is, German, survivors’ testimonies are crucial to understanding the events of the period.”) Saul Friedlaender’s two-volume work on the Holocaust makes extensive use of victim testimonies although emphasizing contemporaneous diaries rather than postwar memories. Saul Friedlaender, Nazi Germany and the Jews 1933–39 (London: Harper Collins, 1997); Saul Friedlaender, The Years of Extermination: Nazi Germany and the Jews 1939–45 (London: Harper Collins, 2007). Most Eastern European Jews spoke Yiddish, a language which is frequently inaccessible to scholars in Western countries, and even to many Israelis. See R. Hilberg, The Destruction of the European Jews, pp. 1104–8.

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and (perhaps not coincidentally) to provide an image of European Jews more consistent with the prevailing philosophy in the postwar Jewish world. The significance of the Amidah concept is described by Yehuda Bauer in his 2001 book, Rethinking the Holocaust: What does Amidah include? It includes smuggling food into the ghettos, mutual selfsacrifice within the family to avoid starvation or worse; cultural, educational, religious, and political activities taken to strengthen morale; the work of doctors, nurses, and educators to consciously maintain health and moral fiber to enable individual and group survival; and, of course, armed rebellion or the use of force (with bare hands or with “cold” weapons) against the Germans and their collaborators.4

Together with Amidah Bauer notes, a related, quasi-religious concept known as the sanctification of life (kiddush ha’chaim) – a play on the traditional kiddush hashem or sanctification of God – which has been traced to the Warsaw Ghetto and includes most of the nonviolent activities included in the Amidah approach. Although generally sympathetic to these concepts, Bauer also notes their limitations, and calls for a balanced view neither overly triumphalist or pessimistic regarding the resistance phenomenon.5 Special Features of the Italian Jewish Situation The models used by Hilberg, Bauer, and others were developed primarily in response to events in Russia, Poland, and other central or eastern European countries where most of the Holocaust took place – and, not coincidentally, where most contemporary American (and Israeli) Jews originated. For these reasons, the models may be incompletely applicable to the Italian Race Laws and the Jewish response to them. It may be worth a further digression to consider the special features of the Italian situation and their relevance to the equation. First, the models apply primarily to countries in which the Holocaust followed immediately upon German invasion (as in Russia), or following a period of harsh physical persecutions that were then succeeded by actual genocide (as in Poland and to some extent Germany itself). By contrast, the Race Laws period in Italy involved a regime of legal discrimination but as yet no systematic physical threat to the Jewish population. The nature of the persecution, and opportunities for resistance, were accordingly quite different in each case. Second, the Italian Jewish community differed from those in other countries in several important respects. The most commonly noted feature of the Italian Jews is their high level of cultural assimilation and corresponding economic 4 5

Y. Bauer, Rethinking the Holocaust, p. 120. See ibid., 166. (“It is important to strike a reasonable balance between nostalgic hero worship of Jews during the Holocaust and attempts to downplay all forms of Amidah.”)

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status (frequently middle to upper middle class rather than overwhelmingly poor as in Eastern Europe) together with a high degree of participation in national life. But the Italian community was also distinguished by its Jewish religious heritage (primarily Sephardic or Mediterranean rather than Ashkenazic or Northern European in origin) and its community organization (all synagogues and religious organizations remained exclusively Orthodox in nature although most individual Jews were nonobservant and many were indifferent or even hostile to religious tradition).6 The effect of these differences is sometimes unclear: an assimilated community can be economically stronger but politically weaker than a more distinct one, and Sephardic Jews – if historically more open to outside influences than their Ashkenazi counterparts – retain a proud tradition of independence and have experienced more than their share of deprivation and persecution. Italian Jewish authors like Giorgio Bassani and Primo Levi describe a world open to external influences but in which Jews remained aware, sometimes intensely so, of their special origins and unique historical position.7 Finally, there must be taken account the corporate structure of the Italian community, which then and now had an official charter and legal status. While at times facilitating persecution, this structure was to offer Jews at least some opportunity to frame a coherent response during the Race Laws era and to recover once the war was over. The bottom line is that, while Italian Jews were a relatively small and assimilated community, they had a strong warehouse of traditions to call upon, and were rather less far removed from the ghetto – both literally and figuratively – than is now commonly perceived. Both their history and institutional structure differed in significant ways from those of the more numerous and better known Jews of Northern and Eastern Europe. These and other features must be taken into account in evaluating the behavior of Italian Jews during the Race Laws and Holocaust era.

6

7

The Italian community includes Ashkenazic, Sephardic, and “Italian” components but it seems fair to say the Sephardic or at very least non-Ashkenazic strain is dominant. See generally Cecil Roth, The History of the Jews of Italy (Philadelphia: Jewish Publication Society of America, 1946); Attilio Milano, Storia degli ebrei in Italia (Turin: Einaudi, 1963). The response of the Jewish Community to the Race Laws and Holocaust is discussed in Michele Sarfatti, Gli ebrei ` persecuzione (Turin: Einaudi, 2000), 207–24. nell’Italia fascista: vicende, identita, See Primo Levi, Il sistema periodico (Turin: Einaudi, 1975), 3–21 (describing the experiences of his family as experienced and recounted in the prewar years); Giorgio Bassani, Il Giardino dei Finzi-Contini (Turin: Einaudi, 1962), 14–24 (describing background of the (fictional) FinziContini family and contrasting it with the protagonist’s rather more modest background). It must be noted that these portrayals, if taking account of the unique features of the Italian Jews, are not uniformly positive: Levi titles his chapter “argon” to suggest the inert character of his family and community, while Bassani describes the Finzi-Contini (and to some extent, the protagonist’s own family) as obsessed with the past and unable to confront the challenge of the racial laws. Ibid.

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From Theory to Practice: Types and Strategies of Italian Jewish Resistance The following pages are intended to provide a representative, if hardly exhaustive, survey of Jewish resistance activities in the Italian Race Laws and Holocaust period.8 For convenience, I have divided activities by the type of resistance (national and local, group and individual, violent and nonviolent) involved. This typological breakdown also suggests a chronological distinction, since both persecution and resistance were largely nonviolent in the pre-1943 period, while the Italian Resistance as a broad-based, military phenomenon dates mostly from the period after September 1943. Because there is relatively little such material in Ferrara, I have relied heavily upon the archives of national Jewish organizations, most notably that of the Union of Italian Jewish Communities (UCII, later UCEI), together with the Roman Jewish community, which was and is the largest in Italy. I have also included several items from the Segreteria Particolare del Duce, this time pertaining to Jews who wrote signed or anonymous letters about the Race Laws. This being primarily a book about the juridical side of the Race Laws, I devote disproportionate although not exclusive attention to the activity of law and lawyers in this period.9 Because of its broader focus, this discussion is somewhat more diffuse and argumentative than the preceding materials, and (perhaps) a bit less objective; it likewise blurs certain distinctions (national vs. local, the pre- versus post1943 periods, etc.) that are observed above. The issue of Jewish resistance is important enough to justify this inconsistency, and I trust the reader will forgive me these excesses. Nonviolent Resistance/Amidah: Schools, Charities, and Emigration Perhaps the most common form of Amidah in the pre-1943 period was the maintenance and reinforcement of Jewish communal activity under the Race Laws. The most important challenge was the exclusion of Jews from Italian public schools and universities after 1938. Almost overnight the community was required to create or vastly expand its own elementary and secondary schools to meet the needs of several thousand students, many of whom previously maintained little connection with the organized Jewish community and some of whom did not consider themselves Jewish at all.10 That it responded 8 9

10

A more comprehensive treatment of this issue is found in M. Sarfatti, Gli ebrei nell’Italia ` persecuzione, 207–24. fascista: vicende, identita, This chapter discusses primarily the efforts of Jewish lawyers and litigants, while Chapter Four focuses on the legal system as a whole; but this is an imperfect distinction, and there is some inevitable overlap between the chapters. According to Michele Sarfatti, the Jewish community ultimately created thirty-five schools or courses of study (twenty-two elementary and thirteen intermediate or commercial schools) involving several thousand students. Of these, the vast majority had not previously attended

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forcefully and for the most part successfully to this challenge is attested by a variety of sources. In an essay from the collection Una scuola nella guerra, Anna Maria Quarzi describes the Jewish middle school (Scuola Media Israelitica) at Via Vignatagliata 79 in Ferrara, where Giorgio Bassani taught and which is today noted by a plaque in the improbably fashionable ghetto. The author quotes Paolo Ravenna, the son of the deposed podesta` and subsequently a lawyer in postwar Ferrara, on the challenges but also the benefits of his new academic environment: We had been banished [allontanati] from so-called official Italy and entered completely unprepared into a new dimension: that of an unknown country in which we walked forward a little bit at a time discovering values that were new to us like liberty and antifascism. A slow, complex discovery, but which permitted us to feel no longer isolated, to aspire to break out [uscire] from the psychological enclosure that had hit us in the moment we were expelled. . . . In via Vignatagliata was formed a new spirit that would leave its imprint on all of our future.11

The archives of the Rome Jewish community – many times larger than Ferrara but reflecting similar pressures – are similarly full of materials regarding the sudden need for independent Jewish schools. An essay by Bice Migliau describes the situation in the capital, where the existing elementary school increased quickly from 450 to 764 students and an intermediate school, including several different tracks and more than four hundred students, had to be established essentially overnight. While noting the participation of various prominent academics in the establishment/expansion of the Roman schools, Migliau also suggests the high quality or at very least high morale of the resulting environment, noting that students gathered a half century later “[were] unanimous in remembering a unique kind of school, in which an entire generation

11

Jewish schools and indeed the latter did not exist at all in many locations. Sarfatti notes the challenges faced by the underfunded and inexperienced Jewish schools but also some compensating advantages, notably the presence of many overqualified teachers who had been dismissed from university or similar positions with the onset of the racial laws. He further notes the ironies of the situation including the ambivalence of many parents toward their children receiving a religious as well as a secular education: the latter problem was apparently resolved in at least one city (Rome) by providing two hours of fixed religious instruction per week, an arrangement ironically similar to the treatment of Catholic education in modern Italian schools. See ibid., pp. 219–21. Paolo Ravenna, “Bassani insegnante negli anni Trenta,” in Bassani e Ferrara – le intermittenze del cuore, eds. A. Chiappini and G. Venturi (G. Corbo, 1995), quoted in Anna Maria Quarzi, Una scuola nella guerra: la scuola media israelitica di Via Vignatagliata 79 (Ferrara: Istituto di Storia Contemporanea, 1996), 257, 262. The Ferrara schools demonstrate the triumphs but also the tribulations of the Jewish situation: while a preexisting nursery school (asilo) and elementary school could be expanded with the help of some public funds, an intermediate school was opened only in 1941, was interrupted by the work call-up (precettazione) in 1942, and was closed down completely in 1943 under the German occupation and the RSI government. Ibid.

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was educated under the direction of teachers who had tried to give the best of themselves in times that were becoming continually more difficult.”12 Contemporary documents bear out the comprehensive nature of the effort if not the (inevitably rosy) recollections. The minutes of the (Jewish) Intermediate Schools Administrative Committee contain numerous discussions of funding, personnel, and other relevant issues, including certain ideas that seem na¨ıve or even bizarre in retrospect: a proposal for an agricultural school in central Italy stands out in this category.13 The issue of religious instruction was also discussed at some length, including the question of whether a non-rabbi was qualified to provide such instruction. The resolution was positive but with the stipulation that the rabbi must personally approve the individual chosen.14 The Italian Jewish community also faced a challenge in providing economic assistance to Jews who had lost their jobs or were otherwise unable to support themselves as a result of the Race Laws. The small size of the community, 12

13

14

See Bice Migliau, “Le Scuole Ebraiche di Roma del 1938,” in Le Leggi razziali e la comunita` ebraica di Roma 1938–1945, eds. Venzo and Migliau (part of Viaggi nella memoria series and published jointly by the Archivio di Stato di Roma and the Archivio Storico della Comunit`a Ebraica di Roma), 25–6. Although there is an inevitable tendency toward idealization in subsequent recollections, Migliau also notes the contradictions and disappointments of the Roman effort: in order to associate with the national middle schools association (ENIM) the school was required to appoint an Aryan director, while an attempt to secure Government support for a plan to send Jewish students to Italian universities was dramatically overtaken by the deportation of Jews from Rome in October 1943. Ibid. It is also noteworthy that Migliau, like Quarzi in Ferrara, emphasizes the secular quality of the schools rather than their specifically Jewish character, a theme which distinguishes the Italian from the Eastern European experience but in no way undermines the courage or commitment inherent in the Italian effort see later discussion. See Letter from Dante Almansi, President of the UCII, to Comunit`a Israelitica di Roma, Apr. 7, 1941, Prot. No. 560/41, Archivio Storico della Comunit`a Ebraica di Roma (hereinafter ASCER), Comunit`a Israelitica di Roma, Amministrazione Contabilit`a e Fisco (hereinafter CIR: ACF), Corrispondenza: Commisione Agraria 1941–42, b. 85, f. 7 (suggesting possible acquisition of facilities for an agricultural school in central Italy); Letter from Ada Coen Saralvo to Professor Colombo, May 4, 1941, ASCER: CIR: ACF: Corrispondenza: Commissione Agraria 1941–42, b. 85, f. 7 (suggesting a possible site near Perugia). See Verbale della riunione del comitato amministrativo delle scuole medie del 22 ottobre 1942, ASCER: CIR: ACF: Corrispondenza: Giunte 1941–43, b. 85, f. 1, pp. 1–2. The difficult economic straits of the community are referenced indirectly in the same minutes, when a member of the committee suggests the need to gather accurate information regarding requests for scholarships (sussudi) for tuition payments by needy families. Ibid., 3. See also Letter from President to Professor Anselmo Colombo, Feb. 2, 1940, ASCER: CIR: ACF: Corrispondenza: Consiglio e Giunte 1938–1940, b. 85, f. 9 (discussing costs and benefits of religious instruction and after school programs for students especially those in outlying areas). In addition to these controversial issues, the minutes of committee meetings deal with mundane matters such as budgets, hiring, and facilities in the manner of an American school board; indeed the minutes continue until the spring of 1943 little if any overt concern about the course of future events. See, e.g., Verbale della riunione del comitato amministrativo delle scuole medie del 3 luglio 1942, ASCER: CIR: ACF: Avvisi – Misc. 1919–1920; 1930–1943, b. 107, pp. 1–4 (discussing the appointment of teaching personnel for the 1942–3 academic year).

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and its relatively limited experience in dealing with large numbers of destitute people, were formidable obstacles. Nevertheless, the community appears to have made a determined if not always successful effort, at least in the larger cities. Thus, minutes of the Jewish Charitable Agency (Deputazione Israelitica di Carit`a) in Rome, June 29, 1943 – about one month before the collapse of Mussolini’s government – discuss a wide range of charitable programs ranging from food, clothing, housing, and medical assistance to assistance for emergency cases (e.g., refugees) and expenditures totaling nearly 250,000 lire. Many of the funds bear Hebrew names such as Sciomer Emunim (keeping faith), Ghemilud Hasadim (providing charity), and the like.15 There was ample need for such services given the high level of un- and underemployment, especially in Rome, where the community was on the average less affluent than in the north and faced severe unemployment resulting (inter alia) from the denial of licenses to Jewish street peddlers.16 A notice posted two years earlier, in May 1941, invites “all unemployed persons (men and women) that are looking for work . . . to present a written application to the Welfare Office [Ufficio Assistenza] of this Community specifying their name [and] father’s [name], address, age, the work which they are willing to do (porter, carpenter, smith, tailor, housework [donna di casa], maid, etc.) and that from which they are up to this moment unemployed.”17 At times, the economic deprivation took on a tragicomic air: Several employees of the Jewish community wrote to the Chief Rabbi in early July 1943, asking that their vacations be reduced by half so that they could retain the additional income.18 Charitable as well as scholastic efforts were conducted in near total ignorance of future events: An addendum to the June 1943 minutes notes a modest improvement in financial situation as compared to prior years, with no indication whatsoever that Jews would be deported from the Roman ghetto to Auschwitz in less than six months’ time.19 15 16

17

18

19

See Deputazione Israelitica di Carit`a, Verbale dell’Adunanza del Consiglio del 29 Giugno 1943, ASCER: CIR: ACF: Corrispondenza: Giunte 1941–1943, b. 85, f. 1. The especially difficult situation of the Roman Jews is recognized by Sarfatti, who however also notices similar situations in Venice and other cities. He sums up the overall (pre-1943) situation by saying that “the persecution involved a definite average impoverishment of the Jewish community as a whole and a strong impoverishment of broad strata of it.” M. Sarfatti, ` persecuzione, 223. On the impact of the Race Gli ebrei nell’Italia fascista: vicende, identita, Laws in Rome see Camera di Commercio di Roma and Unione delle Comunit`a Ebraiche Italiane, Gli effetti delle leggi razziali sulle attivita` economiche degli ebrei nella citta` di Roma (2004). Notice, Domande di lavoro da parte dei disoccupati [applications for work by the unemployed], May 23, 1941, ASCER: CIR: ACF: Avvisi – Misc. 1919–1920; 1930–1943, b. 107 (underlining in original). The notice is written in oversized script suggesting that it was intended for posting on a wall or similar surface. Letter from employees to Chief Rabbi I. Zolli, Jul. 6, 1943, ASCER: CIR: ACF: Avvisi – Misc. 1919–1920; 1930–1943, b. 107. The employees’ signatures are handwritten and their names and religions (Jewish or Christian) could not be identified by the author. See Deputazione Israelitica di Carit`a, Estratto del Verbale dell’Adunanza del Consiglio del 29 Giugno 1943, ASCER: CIR: ACF: Corrispondenza: Giunte 1941–43, b. 85, f. 1 (noting

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Assistance to needy Jews took place at the national as well as local level. For example, the DELASEM (Delegazione per l’assistenza degli emigranti ebrei) in Genoa provided assistance to foreign- and (eventually) Italian-born Jews who wished to depart the country, assistance which continued in clandestine form after the German occupation and the beginnings of the deportation policy.20 Whether to classify these activities as resistance (Amidah) is a difficult and perhaps impossible question. They involved no direct challenge to the Race Laws but rather a grudging adjustment to life in their shadow. Most of the activities were of a secular rather than a specifically religious character.21 It must also be conceded that conditions facing Italian Jews remained less dire than those facing Jews in Poland or other occupied countries even before the onset of deportations. Yet, in some respects, the psychological pain was greater, given the previous history of the community and the almost complete unexpectedness of the racial campaign. Moreover, the activities described – schools, culture, charitable assistance (tzedaka), and so forth – are precisely those included in the definition of Amidah as used by Bauer and other scholars. In this sense – and without in any sense romanticizing the community or its behavior – the activities of many Italian Jews appears to meet the broader definition of resistance put forth by these scholars, all the more impressive because of the small size of the community and the sudden, unexpected turn in its fortunes. Lawyers, Litigation, and the Liberal Professions The response of (primarily non-Jewish) judges and legal scholars to the Race Laws was considered in a previous chapter.22 Because there were a significant number of Jewish lawyers in pre-1938 Italy, the issue also provides an interesting case study of the extent and limitations of Jewish resistance. The same applies, at different levels, to the remaining liberal professions (doctors, pharmacists, etc.): While the Race Laws generally restricted Jewish professionals to

20

21 22

an increase in fund balances over previous years). Documents from the 1938–41 period show a somewhat more tenuous position as the community struggled to deal with the combined shock of the expulsion from the schools and the sudden destitution of many members of the community, but also a resolute spirit in meeting these challenges. See, e.g., Osservazioni sul bilancio preventivo per l’esercizio 1941, ASCER: CIR: ACF: Avvisi – Misc. 1919–1920; 1930–1943, b. 107 (undated and unsigned document) (noting “greatly reduced income” of the community and suggesting strategies for reducing spending and administrative expenses in order to meet this challenge). The activities of the DELASEM are discussed in Alexander Stille, Benevolence and Betrayal: Five Italian Jewish Families under Fascism (New York: Macmillan, 1991). The organization was originally intended to assist refugees from foreign countries but took on a broader function as time went on. Zionist groups were also active in emigration to Palestine (Israel) in the 1930s and after 1945, although this escape route was largely cut off in the early 1940s. See notes 10–14 and the accompanying text (discussing Jewish schools). See Chapter Four.

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working on behalf of Jewish clients, there were various exceptions, and even those professionals who were forced to close their official practices did not necessarily remain wholly inactive.23 Thus, there was somewhat more room for maneuver with respect to professional exclusions than, for example, the rules pertaining to mixed marriages or public schools. A frequent response of Jewish professionals was to continue in effective practice by collaborating with one or more non-Jewish colleagues. This phenomenon, which required the assistance of sympathetic non-Jews, was in some parts of the country so widespread as to constitute a quasi-organized pattern of legal evasion. One common strategy involved eliminating the Jewish professional from the name of the firm while continuing to provide services as an independent contractor or outside counsel. At times, this was coupled with a written or unwritten commitment to restore the official relationship when and if the laws changed.24 Arrangements of this type were the professional equivalent of the transfer of real estate so as to avoid the effect of the new ownership limitations, which resulted in the Ricci letter and the case of Rosso c. Artom, described in Chapter Four. A more assertive response was to challenge the Race Laws or their application directly, either on one’s own behalf or on behalf of one’s fellow citizens. Fascist Italy being a nondemocratic state – and the likelihood of overturning the Race Laws as a whole being essentially nonexistent – the usual strategy was to contest the interpretation of a particular rule rather than its underlying existence. These efforts sometimes took the form of judicial challenges (litigation), especially in areas where a rule had been extended beyond its terms by the bureaucracy (for example, real estate) or where the Race Laws clashed with other provisions of the Italian legal order (as in the pension area). As observed in Chapter Four, these efforts achieved some successes, although typically with regard to collateral rather than core provisions of the Race Laws, and with judicial successes sometimes reversed by subsequent legislation.25 Still another strategy was to intervene directly with the police or administrative agencies. This strategy was particularly common with respect to employment limitations, such as denial of licenses to Jewish peddlers (commercio ambulante), which often involved administrative rulings rather than direct legislation and where (perhaps) the limited resources of the victims made a sophisticated legal challenge less feasible. The UCII (Unione delle Comunit`a Israelitiche Italiane, the main national Jewish organization) in particular made a series of administrative appeals on behalf of ambulatory vendors as well 23 24

25

The most significant exception was for discriminati Jews, although this exception was itself subject to various limitations. See Chapter Three. This strategy, or a variant of it, resulted in at least one important litigation, see text accompanying notes 30–2. Another tactic was intentional backdating of documents so that transfers of real estate would appear to have taken place before the statutory cutoff date. The similarity to ordinary tax avoidance techniques is once again striking. See Chapter Four.

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as doctors, lawyers, and other professions, although without notable success. These efforts took the form of letters to the affected government agencies (e.g., the Ministry of Finance, Ministry of Education, and others) alternating with less formal, ad hoc interventions. The UCII also wrote a more generic letter to the Interior Ministry which – although studiously avoiding the word “protest” – described the unfairness of the Race Laws in considerable detail and expressed, albeit in indirect terms, the community’s sense of betrayal at these outcomes.26 In some cases, a combination of self-help measures and professional legal assistance resulted in at least temporary success for individual members of the community. In spring 1940, in Rome, a group of fourteen apparently unrelated Jewish doctors was prosecuted on the charge of unauthorized practice of medicine in response to a complaint by the provincial branch of the Fascist doctors’ union.27 The prosecutors alleged that, notwithstanding their removal from the official medical register pursuant to the racial laws, the doctors had continue to treat Aryan patients in various circumstances. The court eventually acquitted nine of the fourteen doctors, one because of insufficient evidence, six because they were found not to have committed the acts complained of, and two because, having obtained discriminato status, their treatment of Aryan patients was not a criminal activity. The remaining five were convicted and subjected to a fine of 2,200 lire each plus costs, although execution of this penalty was suspended for a five-year period given the nature of the offenses and defendants’ lack of previous criminal records.28 Arguably more interesting than the result in this case was the sophistication of the arguments advanced by the defendants, including failure to provide notice of their removal; the allegedly delaying effect of filing a judicial appeal; and a series of intricate statutory interpretation arguments, together with more mundane positions regarding the distinction between regular and “emergency” medical practice and other similar matters.29 Although these arguments were not always successful, they suggest a high degree of organization and legal planning, albeit coupled with a certain naivete´ regarding the fairness of the laws and the ability to achieve justice in the existing legal system. A similar if more complex case involved the lawyer Salvatore Fubini of Turin, a discriminato Jew who published a newspaper advertisement seeking a collaborative relationship with colleagues in other cities. When his discriminato status was revoked by the Interior Ministry – apparently as punishment for the above – Fubini challenged the revocation on various grounds, including improper exercise of administrative power, violation of the right to defend one’s 26 27

28 29

The contents of this letter are discussed text accompanying notes 43–50. Tribunale Penale di Roma, Alessandro Coen et al., Mar. 18, 1941, located in Archivio Storico dell’Unione delle Comunit`a Ebraiche Italiane, fondo Attivit`a dell’UCII dal 1934 [hereinafter UCII] b 85C (1939–1943), f. 85C-5, sf. Professionisti: Comunit`a: Medici. Additional cases on the Race Laws are discussed in Chapter Four. Ibid., 25. Ibid., 4–23.

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self against criminal or administrative charges, and extension of the revocation to his mother who was not involved in the action complained of. He further argued that discriminazione was a form of personal status (status personae) that could not be negated because of subsequent events.30 While not all of these arguments were successful, the outcome is arguably less significant than the assertiveness of Fubini’s strategy and the sophistication of his appeal.31 The presence of Calamandrei, one of the country’s best known leading legal scholars, as a plaintiffs’ attorney suggests an especially high level of organization and coordination with prestigious (and in this case non-Jewish) figures, although the motives for such participation were sometimes ambiguous, as discussed above.32 It must be noted that cases like Fubini created important precedents in criminal and administrative law and the relationship between judicial and administrative power; these rather than their specifically Jewish aspect may account for the attention they received. The efforts of Mario Falco, professor of ecclesiastical law and friend and colleague of Prof. A. C. Jemolo – whom we have likewise seen in a previous chapter – merit similar attention. After being dismissed from his employment because of the Race Laws, Falco continued to stay involved in Race Laws litigation including an appeal regarding the financial conditions of his dismissal from his own teaching position.33 Falco, together with Ugo Forti and others, was likewise involved in a series of ongoing correspondences regarding the more general progress of Race Laws litigation, appeals, and statutory interpretation issues (these correspondences are described further in the discussion of national Jewish organizations, below).34 Because they involve explicit challenges to the application of the Race Laws, the efforts of lawyers and legal scholars probably come closer to the conventional definition of resistance – albeit nonviolent resistance – than educational or welfare projects. It must be conceded that such efforts tended to be uncoordinated and scattershot in nature, and many were attempts to protect one’s self or a small circle of associates rather than the community at large. In most cases 30

31 32

33

34

Fubini e Segre c. Ministero dell’Interno, Consiglio di Stato, April 15, 1942, located in UCII, b. 85C, f. 85C-5, sf. Ricorsi vari. Accepting Fubini’s arguments with respect to jurisdiction but unsure of the merits, the Consiglio di Stato remanded the case to the trial court; the issue was not finally resolved until 1949 by which point it was essentially moot. See Giuseppe Speciale, Giudici e razza nell’italia fascista (Turin: G. Giappichelli, 2007), 92–94. The Consiglio di Stato is the highest court for administrative matters. See text accompanying note 30. See Chapter Four. Interestingly, Calamandrei’s postwar memoirs make no reference to this decision, although they do discuss a previous decision in which Calamandrei defended Fubini against similar charges before an administrative panel. Piero Calamandrei, Diario 1939–45, vol. I (Giorgio Agosti, ed.), 145. Calamandrei’s judicial philosophy and role in Race Laws cases are discussed further in Chapter Four. Falco c. Ministero dell’educazione nazionale, Consiglio di Stato, copy of decision in UCII b. 85C, f. 85C-5, sf. Ricorsi vari. The appeals by Falco and other university professors are discussed in G. Speciale, Giudici e razza nell’italia fascista, 110–14. See notes 38–42 and the accompanying text.

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they sought to change the interpretation of the laws rather than the underlying statutory provisions, thereby implicitly accepting the legitimacy of the rules and the government that created them. None of them approached the level of risk involved in joining an antifascist organization or (after 1943) participating in the armed Resistance. Many if not most of the efforts were ultimately unsuccessful. Yet if not always heroic, the activities of lawyers and other professionals do suggest that an opposite view of Jews under the Race Laws – as meekly submitting to oppression and (later) extermination – is untenable. Faced with an unexpected and increasingly untenable situation, they sought to challenge those aspects of the laws that remained susceptible to challenge and to make common cause with non-Jews who shared an interest in doing so. The overall approach – a mixture of evasive measures and challenges to interpretations/applications while avoiding direct confrontation with the race bureaucracy or the Fascist regime – is still more understandable when one recalls that the persecution was as at this stage moral and financial rather than physical in nature, and was perceived as a quasi-permanent state of affairs rather than an intermediate stage or a prelude to more drastic sanctions. Indeed, the strategies adopted by Jews in Fascist Italy are in many respects similar to those adopted by other groups, including African Americans in a roughly contemporary era, who faced similar challenges.35 These issues are discussed further below. The Role of the National Jewish Organizations The dilemmas facing the Jewish community – collaboration, resistance, survival – are best captured in the experiences of the UCII, the national body representing Italian Jewry in this era.36 The UCII had been reorganized in 1930 along lines acceptable to the Fascist regime and is generally considered to represent the more establishment, mainstream side of the Jewish community. The organization professed a rather obsequious public loyalty to the regime and officially accepted, albeit with obvious reluctance, the broad outlines of its racial policy. Yet its documents also reveal numerous steps to improve the lot of the Jewish community under the Race Laws, as well as repeated efforts to secure the least damaging interpretation that was realistic under the circumstances. The UCII and its successors also provided a formally unbroken institutional continuity, which enabled Italian Jewry to reestablish itself after the war somewhat faster and more completely than it otherwise could have.37 The UCII’s efforts with respect to the Race Laws may be divided into three parts. First, the organization played an important role in coordinating 35

36 37

Any comparison of this sort must allow for substantial differences in historical circumstance as well as differences between a democratic and authoritarian state. See text accompanying note 60. The successor organization is today known as the UCEI (Unione delle Comunita` Ebraiche Italiane). See Chapter Seven.

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educational, charitable, and emigration efforts throughout the 1938–43 period. This coordinating role remained important, although the activities themselves were typically conducted by local communities or national organizations, like DELASEM, which had more specific functions. Second, the UCII functioned as a sort of clearinghouse of news and personal contacts for Jews who sought to ameliorate the effects of the Race Laws, either by litigation or by appeals to administrative agencies. This included gathering information on the application of the laws and, at times, placing lawyers or other experts in contact with those who needed their assistance. For example, extensive information on the Rome doctor’s litigation, the Fubini and Falco cases, and other similar controversies is found in the UCII archives, together with letters and correspondences sharing information about such cases or helping to plan later challenges.38 Additional memoranda discussed the interpretation of the laws, apparent errors in drafting, and potential strategies for coping with them.39 Lawyers working on cases affecting the Race Laws, in turn, frequently turned to the UCII or its individual members for advice and encouragement. For example, a letter dated December 22, 1941, from Ugo Forti, a lawyer and professor based in Naples, to the head of the UCII, Dante Almansi, includes a copy of an appeal by Prof. Jona of Turin (discussed above) together with an apparently unrelated question regarding the treatment of part-time workers (avventizi) by the Ministry of Finance.40 Forti and Almansi also appears to have become involved in other issues including, for example, the delaying effect (effetto sospensivo) of appeals of cancellation of Jewish lawyers from the professional registers, an important issue in such cases.41 Falco was likewise involved in devising legal strategies regarding the treatment of Jewish academics, like himself, and others including the denial of licenses for street peddlers, as described below.42 38 39

40

41 42

See notes 27–32 and the accompanying text. See, e.g., memorandum regarding differential treatment of discriminati and other Jewish professionals for purposes of professional registers, UCII b. 85B (1938–1939), f. 85B-4, sf. Varie: professionisti; memorandum (Dec. 16, 1938) regarding possible allocations of property by discriminati and other Jews for purposes of the real estate provisions including mathematical examples, UCII, b. 85B, f. 85B-4, sf. Varie; memorandum noting possible technical errors in various portions of Race Laws, UCII b. 85B, f. 85B-4, sf. Varie. Several of these items are unsigned and undated and appear to have been compiled by UCII attorneys or other staff for internal discussion purposes, as is typical of lawyers preparing a case. Letter from Avv. Prof. Ugo Forti to S.E. Dante Almansi, Dec. 22, 1941, UCII b. 85C, f. 85C-5, sf. Dipendenti statali inamovibili. Forti (1878–1950) was a professor of administrative law who had signed the Manifesto degli intelletuali promoted by Benedetto Croce in 1925 and was later appointed to a postwar reform commission. Almansi, who had a Fascist past and was later to prove controversial for his behavior during the 1943 deportation of Jews from Rome, became UCII president in 1939. Letter from Ugo Forti to Dante Almansi, Feb. 19, 1940, UCII b. 85C, f. 85C-5, sf. Professionisti: Privati (expressing doubts regarding delaying effect but urging an appeal be filed in any case). See note 45 and the accompanying text. With respect to the treatment of Jewish academics, see Excerpt from Acts N. 386/41, Mar. 6, 1941, and Excerpt from Acts n. 411/41, Mar. 7,

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Third, and most daring, the UCII on occasion petitioned the government directly, taking pains to profess its loyalty to the regime but then seeking interpretations that, if accepted, would have substantially weakened the laws. The most prominent of these efforts was a series of letters drafted by Avv. Aldo Ascoli, who served as vice president of the UCII, to the Interior Ministry in the period following the adoption of the Race Laws in the fall of 1938. Although phrased in polite terms – and accepting, with reluctance, the validity of the original legislation – the letters plainly set forth the misery into which the Race Laws had plunged the Italian Jewish community and, whenever possible, called for reinterpretation and even the revision of the harshest provisions. Thus, a letter of February 21, 1939, written on UCII stationery and addressed to the Minister of the Interior, describes the deep and abiding despondency into which adoption of the Race Laws had plunged the Italian Jewish community:43 But, and may we be permitted to make our voices heard, we are today experiencing an inexpressible sadness, a profound discomfort in noticing how gradually there appears to be manifested and realized a plan for the annihilation [annichilimento] of our small and fervent community. We do not protest, but express with dignity the growing anxiety in our hearts in witnessing the unfolding of this program that drives to desperation a category of citizens, judged inferior to others only because they belong to a religious confession that is not that of the majority . . . We do not protest, but may we be permitted to reveal how little by little the coexistence of the Jews in the sphere of national life has been made more difficult, by the thickening of this atmosphere of suspicion and slander that have poisoned public opinion, going beyond the expressed intentions of the Government which is fixed and precise in its legal directives [that are] intended for the greater political and unitary good of the Nation.44

The letter continues further in this vein, striking an almost acrobatic balance between a resigned acceptance of the law and a harsh denunciation of its implementation. The strongest criticism is reserved for local officials who, it is suggested, have applied the law in an unjustifiably harsh and arbitrary manner: Sporadic episodes have also taken place, in various cities, of lack of understanding, by various local Authorities, of the Governmental provisions, so that in some cases there has been noted a rigidity much more painful in application, especially of those

43

44

1941, UCII b. 85C, f. 85C-5, sf. Dipendenti statali inamovibili (correspondence between Mario ` of Italian Falco and Dante Almansi regarding the legal status and job security [inamovibilita] university professors). Letter, Unione delle Comunit`a Israelitiche Italiane (UCII) to S.E. il Ministro Segretario per l’Interno, Feb. 21 1939, n. 330, in UCII, b. 85B, f. 85B-4, sf. Rapporti con le Autorit`a: Varie. The letter carries the signature “P. La Presidenza” (for the directors) as is common for letters expressing the official views of the organization. The letter was found in a chain of communications that were drafted by Avv. Ascoli and appears to have been written by him although his name does not appear on this copy. Ascoli served as Vice President of the UCII until 1939. Ibid., at 3–4.

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[provisions] relative to domestic employees [citations omitted] for whom there are at times demanded costly and difficult documentation.

... In some cities there has not been granted for the current year the full or partial renewal of previous licenses to small tradesmen [piccoli commercianti],45 exposing them to anxious situations under the torment of having to cease their customary modest work; and there is tolerated or suggested the introduction of identifying signs for Jewish commercial enterprises or of other [signs] that specified the presence of stores not belong to them; and even, as in Trieste, notices in public businesses specifying that for reasons of hygiene it was not permitted “to spit on the ground or welcome Jews and dogs.”46

The letter assumes a more open advocacy role with respect to new provisions that were at that time planned but not in effect: The very recent provisions for the limitation of real property and industrial and commercial activity, impoverishing the sources of income, also weaken the administrations of the [Jewish] communities, which no longer have direct and sufficient means to provide for the new needs of those affected: there is coming to be created a mendacity to which we do not know how to find a remedy, and we forecast, with extreme discomfort, the specter of poverty for many families. There is talk now of further impediments to the activity of professionals and artists, who moreover – until now carefully sifted with the goal of achieving a fixed working homogeneity in the various professional registers of the Kingdom – are numerically very scarce but have dense family units to support. On the other hand, a provision that could – with all the precautions desired by the government organs – preserve in their inscriptions and in their possibility to exercise their professions, the few who still belong to such guilds, especially those with discriminati status, we do not think would interfere with the limiting principles of the recent legislation and would not throw so many people into the humiliating predicament of sudden poverty.47

After continuing along these lines for some ten pages, the letter concludes with a plea for reassurance to Italian Jews, coupled with a rather transparent criticism of the racist philosophy that underlay the new legislation: We therefore appeal to our Government, to the noted goodwill and high justice of the Duce, [for] a word that will serve to reassure us regarding the fate of our coreligionists 45 46

47

The reference appears to hand or pushcart traders (commercianti ambulanti) who required licenses to conduct this activity. See Chapter Three. Ibid., 7, 8. A similar balancing act is observed in discussing the Jewish Community’s response to the Manifesto of the Racial Scientists, stated that the Jews were no longer a part of the Italian people. “We could not support [aderire a] this specification which denied any value to the secular and spiritual participation of our community in the fortunes of the Imperial Fascist Homeland . . . but we accepted [it].” Ibid., 2. Ibid., 6–7. The letter appears to be referring to additional rules on professionals that had yet to be enacted at this point.

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in this tragic hour for us, in which there appears more evident our responsibility as leaders, our duty to protect and explain, to preserve order and represent. And sure of the honesty of our intents and our acts, we implore that our voice be heard and there be preserved the tranquility of spirit of our poor, good, humble coreligionists, that there be protected their ethical and material existence, and that there be reassured this small national entity that has combined in one single heartbeat love of Nation [Patria] and respect for God, equal Father of all.48

The February 21 letter captures, in a single document, all of the contradictions inherent in the organized Jewish response to the Italian Race Laws. While phrased in polite and even obsequious terms – and pointedly denying that the Jews “protest” any aspect of the laws – the letter proceeds to do exactly that, detailing the unfairness and negative consequences of the laws and calling for their reevaluation in indirect yet inescapable terms. That the letter focuses on issues that were still subject to change (local ordinances, the press campaign, the as yet incomplete real property and professional limitations), rather than challenging the underlying validity of the laws, seems more a concession to reality that a compromise of principle. In substance if not necessarily in tone,49 the strategy is not much different than that which might be adopted by any lawyer who was seeking to blunt the effect of a disastrous but no longer reversible legal decision. Of course, Ascoli and the UCII had little if any bargaining power, and there is little if any evidence that their proposals had any impact: but it cannot in fairness be denied that they tried. Ascoli himself had met with Antonio LePera, director of the Demorazza, on at least two previous occasions to discuss the implementation of the Race Laws, a transcript of the meetings being included in the UCII files.50 These were obviously meetings between unequal parties, and notwithstanding the broad range 48

49

50

Ibid., 11. The letter, which reflects an entirely understandable mood of desperation, was somewhat ambiguous in its requests. While the principal request was that the central Government intervene to prevent unfair and unintended interpretations of the Race Laws, there was also a plea for assistance in emigration and even a suggestion that some Jews might be settled in the new East African colonies, a proposal that had indeed been mooted in 1938 but never further pursued. Ibid., 5–6, 9–10. The tone of letters to Mussolini and other high officials was uniformly polite or even obsequious, reflecting the tradition of the time, and (in this author’s opinion) should not be taken as indicating any special weakness or obsequiousness on the part of the Jews. See discussion later in this chapter. See Colloquio del Avv. Ascoli, Vice-Presidente dell’Unione, con S.E. Le Pera (Direzione generale Demografia e Razza), 22 Dicembre 1938, UCII, b. 85B, f. 85B-4, sf. Rapporti con le autorit`a: Min. Int. Demorazza; Colloquio del Vice-Presidente Ascoli con S.E. Antonio Le Pera, Direzione Generale Demografia e Razza, 25 aprile 1939, UCII, b. 85B, f. 85B-4, sf. Rapporti con le autorit`a: Min. Int. Demorazza. See also Letter and attached pro-memoria, Il Vice Presidente (Avv. Aldo R. Ascoli) to S.E. Antonio Le Pera, R. 1642, Nov. 23, 1938, UCII b. 85B, f. 85B-4, sf. Rapporti con le autorit`a: Min. Int. Demorazza (noting absence of LePera from scheduled meeting and asking for additional audience as well as making further interpretive points); Letter and attached pro-memoria, Il Vice Presidente (Avv. Aldo R. Ascoli) to S.E. Antonio Le Pera, R. 1718, Dec. 1, 1938, UCII b. 85B, f. 85B-4, sf. Rapporti con le autorit`a: Min. Int. Demorazza

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of issues discussed – including mixed marriages, domestici, the discriminazione process, and the treatment of Jews wishing to emigrate – once again there is little evidence that Ascoli persuaded LePera to make any significant changes in the laws or their interpretation. Indeed, it appears LePera failed to show up for one scheduled meeting and delayed at least one other, and that Ascoli pursued him unsuccessfully on several occasions to arrange a further colloquy. Many of LePera’s answers were evasive in nature, and Ascoli displayed a certain naivete´ in his questions, repeatedly seeking assurances regarding measures that were soon to be resolved in a negative manner. (The letter above appears to have been in part a reflection of Ascoli’s frustration regarding such issues.) But the effort remains significant, suggesting an organized Jewish community that – if at times na¨ıve and perhaps excessively deferential – was acutely aware of the dangers surrounding it and attempted, albeit within clearly prescribed limits, to do something about them. Also noteworthy is the position of the Italian government, which treated Ascoli with formal respect although it did not respond in a substantive manner to his principal complaints. The Ascoli letter and colloquy, which concerned the Race Laws generally, were supplemented by a large number of interventions on specific issues undertaken by the UCII and the local communities. These interventions ranged from middle-class issues such as real estate and domestic servants to the treatment of street peddlers (commercio ambulante) and other modest occupations, where the victims were less able to muster a challenge using their own resources. For example, the UCII appears to have secured a three-month delay in the denial of street peddler licenses to Roman Jews in the winter of 1940–1 – hardly a dramatic breakthrough but hardly a passive approach to the problem, either.51 A number of other communications concerned diverse issues including the treatment of domestic servants, the provisions regarding Jewish professionals, and other similar problems.52 While these efforts likewise registered only modest

51

52

(attaching written memorandum and requesting a further meeting so as to discuss additional issues). See, e.g., Letter (March 7, 1941) from Giuseppe Costi, Davide Enriquez, and four other signatories to On.le Presidente delle Comunit`a Israelitiche d’Italia, UCII, b. 85C, f. 85C-5, sf. Provvedimenti razziali: Ritiro licenza venditori ambulanti (thanking the UCII for helping to obtaini a three-month extension of rules regarding ambulatory commerce in Rome and asking for help in securing a further extension); cf. Letter from Mario Falco to Eccellenza e carissimo Presidente [i.e., of the UCII], Feb. 18, 1941, UCII, b. 85C, f. 85C-5, sf. Provvedimenti razziali: Ritiro licenza venditori ambulanti (noting that latest extension is set to run out and asking what further action is planned on this matter). See, e.g., Letter from Aldo Ascoli to Dr. Dante Almansi, President of the UCII, Sept. 1, 1940, UCII b. 85C, f. 85C-5, sf. Provvedimenti razziali: Ritiro licenza venditori ambulanti (attaching copy of memorandum to Ministry of Interior regarding ambulatory commerce and further discussing meeting with police official regarding unemployed domestic servants); Letter to President of the Camera dei Fasci e delle Corporazioni, S.E. Costanzo Ciano, President of the Senate S.E. Giacomo Suardo, and other officials from La Presidenza UCII, May 23, 1939, UCII, b. 85B, f. 85B-4, sf. Rapporti con le autorit`a: varie and UCII, b. 85B, f. 85B-4, sf. Varie:

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successes, they were frequently energetic and well-informed and by no means passive or defeatist in their approach to the Race Laws. The participation of lawyers and other experts lent a degree of sophistication to the efforts, although arguably at the cost of conceding greater legitimacy to the Race Laws than they in fact deserved. While the UCII tried to maintain an appearance of overall unity, at times there were severe tensions between the national leadership and local groups. An exchange of letters originating with the Jewish community of Florence provides an extreme example of this problem. In Fall 1938, a group of proFascist Florentine Jews circulated a memorandum calling upon the recipients to disassociate themselves from the official Jewish community, which they said had failed to draw an adequately sharp line “between Italian Fascists of Jewish religion and global, masonic, democratic, antifascist Judaism” and had fallen under influence of “that international Zionism [that is] absolutely antithetical to Mussolinian and Fascist Italy.”53 The UCII responded with a memorandum which forcefully denied the charges, and suggested that the attack “reveals a singular incomprehension of the present moment and an absolute lack of tact and discernment.”54 According to the UCII memo, the “arbitrary, unfounded, and ridiculous” accusation of insufficient patriotism was intolerable; to the contrary “one should keep in mind that the Union, quietly, simply, and with dignity, acts and operates without rest for the common good inspiring trust and firmness in the [local communities].”55 The incident suggests the resiliency of the UCII leadership, but also the psychological strains on its members and the tenuous nature of its substantive position, caught between pro- and antiFascist elements within the Jewish community and against the background of the government’s increasingly aggressive antisemitic policy. The archives of the Jewish community of Rome – the largest and most important in Italy – reveal a similar pattern of superficial acquiescence mixed with constant if carefully circumscribed efforts on behalf of Jewish victims. The scholastic and charitable activities of the community were described in a previous section.56 Together with these extraordinary activities, the community continued to deal with all of the ordinary aspects of Jewish public life, attempting to maintain a semblance of normality under conditions of extreme

53

54 55

56

professionisti (requesting liberalizing changes in rules regarding Jewish professionals while they were still at the legislative stage). Letter from Presidenza of the UCII to Directors of the Union and Presidents of the Italian Jewish Communities, Prot. 1829, Dec. 19, 1938, UCII b. 85B, f. 85B-3, sf. Comunit`a: circolari. The previous circular is quoted in the text of the UCII letter. Ibid., 1–2. Ibid., 2. The activities of a small band of diehard Jewish Fascists were to result in confusion and embarrassment to 1943 and beyond. The publication La Nostra Bandiera (Our Flag) was especially associated with this group. See text accompanying notes 7–11. These materials are included here because of the size of the Roman community and its national importance.

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adversity. At times, the conflict between mundane and extraordinary gives the archives an almost surreal quality. Documents regarding financial relief and emigration efforts are juxtaposed with scholarship competitions and orders to buy matza for the coming Passover holidays.57 A bank writes seeking adjustment of mortgage arrangements involving the Jewish community, ten weeks before the fall of Mussolini and four months before the beginning of the Italian Holocaust.58 The strain on the organization, created to deal with ordinary religious issues and suddenly facing an all-out assault on Jewish existence, is obvious. Yet a pattern of determined if carefully restricted activity, a refusal to give in to what must have been psychologically and even physically overwhelming circumstances, emerges. It must be reiterated that the community had no reliable knowledge, at this point, of the coming occupation and deportation, and appears to have believed the current situation would continue for an indefinite period.59 Do the efforts of the UCII and individual communities constitute resistance (Amidah) as described in the preceding sections? As in the case of lawyers and other professionals, the efforts were not very dramatic as compared to the activities of Jewish partisans in Eastern Europe or members of the armed Resistance. Nearly all of them took place in the context of at least superficial acceptance of, and in some cases actual sympathy for, the underlying Fascist regime. Outright heroism was rare. Yet the efforts seem far from collaboration or passive acquiescence, either. In a situation of totalitarian rule, and facing virtually total indifference from the broader Italian population, the Jewish organizations did what they could to ameliorate the situation of individual Jews and ward off or at least postpone still harsher measures. While maintaining a public face of loyalty and even obsequiousness, they sought openly to blunt the effect of the Race Laws and tolerated or encouraged efforts to blunt them still further. In contrast to the activities of individual lawyers and professionals, their efforts were undertaken on behalf of the overall Jewish community, often with no direct benefit to the individuals involved. Indeed, they were not always entirely unsuccessful in their efforts, although even these small successes were to be nullified by the post-1943 German occupation and the Sal`o government. This last point suggests one of the major difficulties in evaluating the behavior of Jewish organizations, what might be called the “20–20 hindsight” problem: The knowledge, available to us but not the Jews of that period, that 57

58

59

See Notice of Competition (Avviso di Concorso) for scholarships for the 1938–9 academic year, Foundation Lelio Prof. Della Torre, Nov. 6, 1938, ASCER: CIR: ACF: Avvisi – Misc. 1919–1920; 1930–1943, b. 107; List of Matza (Pane Azzimo) Prices for Passover 5699, Mar. 6, 1939, ASCER: CIR: ACF: Avvisi – Misc. 1919–1920; 1930–1943, b. 107. See Letter from Director, Rome branch, Bank of Monte dei Paschi di Siena to the Jewish Community of Rome, Servizio di Tesoreria, May 7, 1943, ASCER: CIR: ACF: Circolari – Misc. 1936–1938; 1941–1943, v. 109, f. 1. See text accompanying note 60.

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the Race Laws would culminate in a policy of extermination that eventually engulfed all of the European Jews. Armed with this knowledge, we are likely to find it futile to have attempted to cooperate with the Fascist government or to have sought limited exceptions to fundamentally unjust laws. Yet Italian Jews – if surely having some inkling of the unhappy fate that had befallen their European coreligionists – had no way to know that it would engulf them as well. Probably, most imagined that the Race Laws (and perhaps Fascism itself) would eventually wear themselves out, and Italy would return sooner or later to its liberal traditions: something like what actually happened to Franco’s Spain and might have happened in Italy itself had Mussolini (like Franco) stayed out of the conflict and the war been fought elsewhere in Europe. From this ex ante perspective, the strategy of formal acceptance coupled with substantive undermining of the Race Laws seemed a not unreasonable, or in any event the least bad, of the available options. Under a different set of circumstances, the strategy might have succeeded. The hindsight problem finds parallels, if inevitably imperfect ones, in the experience of other minority groups. Until the early 1950s, when African Americans successfully challenged the entire “separate but equal” structure, a frequent civil rights strategy was to accept the reality of segregation but seek to ameliorate its effects – by demonstrating, for example, that separate facilities were not really equal, or seeking to prevent lynchings or other especially brutal forms of racial oppression. Even after Brown v. Board of Education, the civil rights movement continued to plead its case before all-white or nearly all-white courts and legislatures, implicitly conceding the legitimacy of entities organized and operated along racist, exclusionary lines. White liberals similarly fought apartheid in the South African courts well before it was overthrown in the 1990s. Yet no one would refer to these leaders as collaborators or cowards because they worked within what was from today’s perspective an essentially unjust system. It is obviously a stretch to compare the UCII leaders with Martin Luther King, Jr., or Thurgood Marshall: and the realities of a Fascist state, which offered far fewer options than the United States, make these comparisons unconvincing in any case. Nor should the UCII or similar groups be equated with those who were active in openly antifascist or other armed (or unarmed) resistance movements. My point is simply that historians must avoid judging people on the basis of later, then-unknowable events and outcomes. In its own time and context, the behavior of the Italian Jews was no less reasonable – in some cases more so – than that of other groups and individuals subject to similar pressures, including many in our own era.60 60

On the dilemma faced by King and others who protested against segregation in the United Stated, see, e.g., Derrick Bell, Race, Racism and American Law, 4th ed. (New York: Aspen, 2000), 656–8 (discussing King’s distinction between just and unjust laws and willingness to pay a penalty for disobeying the latter). Similar dilemmas were faced in South Africa and other

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Toward Armed Conflict: Jews in the Anti-Fascist Movements and Post-1943 Resistance This being a book about the Race Laws, I have focused on the response of Jewish individuals and organizations to specific antisemitic measures rather than to Fascism in general, and emphasized the role of official rather than informal or underground actors. Some (although hardly a majority of) Italian Jews expressed a broader antifascism, which in many cases preceded enactment of the Race Laws. The disproportionate participation of Jews in antifascist movements – allowing for the fact that the movements, especially in the early years of Fascism, tended to have very small memberships overall – has been documented by several authors, and has indeed been cited as one (although hardly the only) reason for Mussolini’s antisemitic turn in the late 1930s. Because of the high degree of assimilation this activity typically involved participation in secular rather than specifically Jewish organizations, many with a communist or other left-leaning philosophy.61 If Jews were overrepresented in early antifascist movements, they were still more so in the armed Resistance against the Germans and their Italian collaborators after September 1943. The disproportion expressed itself both in overall participation and at the leadership level: several leaders of the CLN (Comitato di Liberazione Nazionale, the umbrella Resistance organization) as well as of individual factions were of identifiably Jewish origin. While some of these had Zionist or other Jewish sympathies, the great majority participated out of Italian patriotism and a range of primarily left-wing political loyalties, both within and outside the Italian Communist Party (Partito Comunista Italiano [PCI]). In this sense, Italy resembled France and other Western European countries rather than those of Eastern Europe, where resistance movements were more likely to be segregated on religious lines. In contrast to the activities of the UCII and local communities, Jewish participation in the antifascist Resistance movements constitutes an unambiguous example of opposition to evil. Whether to classify it as specifically “Jewish” in nature is a more difficult problem. Some scholars have purported to trace such

61

countries. See David Dyzenhaus, Hard Cases in Wicked Legal Systems: Pathologies of Legality, 2nd ed. (New York: Oxford University Press, 2010). There are a seemingly limitless number of sources on the Italian Resistance, although it can sometimes be difficult to separate the reality from postwar myths. For a useful anthology, see Stanislao Pugliese, Fascism, Anti-Fascism, and the Resistance in Italy: 1919 to the Present (Lanham: Rowman & Littlefield, 2004). For two of the more prominent recent works, see Giorgio Bocca, Storia dell’Italia partigiana, settembre 1943-maggio 1945 (Milan: Mondadori, 1997); Claudio Pavone, Una guerra civile: saggio storico sulla moralita` nella Resistenza (Turin: Boringhieri, 1994). A useful source on the entire era is Dizionario del fascismo, S. Luzzatto and V. De Grazia, eds. (Turin: Einaudi, 2005). In addition to anti-Fascists, there was a smaller but not insignificant number of Jewish Fascists, see note 55. Postwar mythology and the limitations of the resistance/collaboration dichotomy are discussed in Chapter Four.

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behavior to a more general tradition of liberalism and social justice embedded in Jewish teachings and communal life – an attractive idea that makes the Resistance appear both secular and Jewish at the same time. Yet such explanations risk being overbroad and cannot explain, for example, the experience of traditional religious Jews, of the small but not insignificant number of Jewish Fascists, or, for that matter, the rightward drift of many postwar Jewish communities.62 Perhaps the most that can be said is that antisemitic policies were an additional factor activating an existing tendency toward resistance in certain sectors of the Jewish community and – especially after 1943 – in extending it, if only because of the absence of other choices, to the remaining sectors. Once again, there is no single model of “resistance” behavior but a series of different factors that express themselves differently depending upon time, place, and the sector of the community in question: the difference between history and memory is especially important in this context. Individual Jews and the Race Laws: More on the Segreteria Files A window on Jewish attitudes toward the Race Laws and Fascism in general is provided by the Segreteria Particolare del Duce, or Mussolini’s personal secretariat, which was previously cited in connection with non-Jewish attitudes.63 A recent study by Iael Orvieto has divided Jewish letters to the Duce into three categories: supplication, that is, requests for exemption from the laws (typically discriminato status or classification as an Aryan or non-Jew); declaration, that is, statements of the injustice or suffering caused by the Race Laws, whether or not accompanied by requests for relief; and letters by young men asking permission to enlist in the armed forces. Other scholars have found a similarly wide range.64 In reading the letters one is struck first by their obsequious, fawning style, together with the apparently genuine affection many Italian Jews had 62 63

64

On the history of Italian Jews in the twentieth century, see generally Mario Toscano, Ebraismo e antisemitismo in Italia: Dal 1848 alla guerra dei sei giorni (Rome: F. Angeli, 2004). See Chapter Five. Additional evidence of Jewish responses to the Race Laws and Holocaust are provided by the archives at Yad Vashem, the Israeli Holocaust museum, including numerous witness statements (dafei-ed) filed by Italian Jews after the war. Given the greater trauma associated with these events, these tend to emphasize the post-1943 deportation era, although there is some mention of the earlier Race Laws, as well. Yad Vashem Archives, File 039/14. See Iael Nidam-Orvieto, “The Impact of Anti-Jewish Legislation on Everyday Life and the Response of the Italian Jews, 1938–1943,” in Jews in Italy under Fascist and Nazi Rule, 1922– 1945, ed. Joshua D. Zimmerman (Cambridge: Cambridge University Press, 2005), 158–81. Cf. Paola Frandini, Ebreo, tu non esisti: le vittime delle leggi razziali scrivono a Mussolini (Piero Manni: San Cesario di Lecce, 2007) (edited collection of letters written by Jews in the Segreteria archives). A longer version of Nidam-Orvieto’s study is “Lettere a Mussolini: Gli ebrei italiani e le leggi antiebraiche,” in La Rassegna Mensile di Israel: saggi sull’ebraismo italiano del Novecento, ed. Liliana Picciotto (2003), 321–46. On letters of supplication in a different historical context, see Natalie Zemon Davis, Fiction in the Archives: Pardon Tales and Their Tellers in Sixteenth Century France (Stanford: Stanford University Press, 1987).

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(or pretended to have) for the Fascist leader. Letters – some addressing Mussolini in the tu (personal) form – laud the Duce’s wisdom, beneficence, and other attributes, and present their case in the manner of a child pleading with a father or other family member. The authors virtually never criticize the laws directly, but argue that they have had erroneous or unintended consequences which, had they been brought to the Duce’s attention, would surely have been corrected. Based on these and similar features, it would be easy to conclude the authors were weak and obsequious in the face of the Race Laws, and did not act forcefully or courageously on their own behalf. Yet the polite tone of the letters should not obscure their significance. Like the Ascoli letter above, many correspondences – if obsequious or even fawning in style – are surprisingly forceful in content, condemning the injustice of the Race Laws in explicit terms. This was especially true in the early years, when it appeared the laws might be temporary in nature, or that loyal or Fascist Jews would be excluded from their application. As Orvieto puts it: Because the racial laws were perceived as an alien imposition, they were thought to be a temporary hardship. Therefore, many Jews thought it would be possible to convince the authorities to alleviate their personal or collective situation by bringing forward rational explanations and arguments.65

Nor was outright protest wholly unheard of, especially in 1938–9 when the laws were first taking shape. A fascinating example was a letter written by Prof. Dott. Ruggero Ascoli, a urologist in Genoa, in response to the journalistic propaganda campaign that preceded adoption of the laws in November 1938.66 Written in a combative, feisty manner, the letter takes issue which virtually all of the major points of the campaign, arguing inter alia that there is no such thing as a pure Italian or (for that matter) a pure Jewish race, that the supposedly unassimilable character of the Jews was belied by the large number of mixed marriages, and that Mussolini himself had on prior occasions 65

66

Iael Nidam-Orvieto, “The Impact of Anti-Jewish Legislation,” 176. The suffering of ordinary Jews under the Race Laws is a frequent theme in Orvieto’s article. In a perverse twist, such suffering was sometimes cited in favor of stricter enforcement against wealthy or powerful Jews, who had avoided the laws that their coreligionists were subject to. Not surprisingly, this argument was most frequently made by non-Jews, although similar resentments existed within the Jewish community. See, e.g., Anonymous Letter to Eccelenza Cav. Benito Mussolini, Ministro della Marina [i.e., Secretary of the Navy], Mar. 23, 1941, Segreteria Particolare del Capo del Governo: Carteggio Riservato [hereinafter SPD], b. 143, f. 245 (citing rumors that radios and telephones will be taken from Jews and calling for equally aggressive action against a high-ranking admiral whose wife was said to be of Jewish origin). The letter was signed “An Honest Italian, who wants the law equal for everyone” and contained antisemitic references suggesting that the author was not Jewish. Letter from Prof. Dott. Ruggero Ascoli, Aug. 4, 1938, SPD b. 146 [fascicoli nominativi.] The letter appears to have been written originally to the editors of Regime Fascista and subsequently brought to the Duce’s attention, accounting for its presence in the SPD files. See Telegram from [Osvaldo] Sebastiani to S.E. [Roberto] Farinacci, Cremona, Aug. 12, 1938, SPD b. 146 (“[The] Duce received and examined the letter on the fifth of this month”).

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specifically rejected the concept of racial purity. At times the tone borders on the ironic, the author suggesting that, if inbreeding were the issue, the new racial policy should be extended to Sicilians and Piedmontese as well as to the Jews.67 Certainly, one cannot fault the courage of Olga DeBenedetti, a single woman from Turin who came to Rome demanding a meeting with Mussolini to discuss the Race Laws; there is no indication that such a meeting was held.68 Sometimes the letters border on the incongruous, expressing combinations of emotions that seem odd or contradictory with the perspective of seventy years. Thus, a letter written in Paris in January 1938 counsels the Duce to be “very prudent” in addressing the problem of Jews, who it says are “stronger than you [may] believe,” then helpfully suggests the Jews be sent to Ethiopia where they would be of best use to the new Empire. The letter is signed “A Jew who is expressing [interpreta] the thinking of the majority.”69 A letter signed by eighteen members of the Committee of Italians of Jewish Religion (Comitato degli italiani di religione ebraica) in December 1937 says that the signatories would joyously offer up “any sacrifice, even the supreme sacrifice [olocausto]” for the good of the nation, and yet they did not know how to respond to “this suspicion [i.e., the antisemitic campaign] that envelops us and torments us.”70 A somewhat more prosaic conflict was faced by David Prato, the Chief Rabbi of Rome, who wrote to the Duce’s special secretary, Osvaldo Sebastiani, seeking an urgent meeting in the fall 1938, apparently to discuss the incipient racial 67

68

69

70

Ibid., 3. A similar, if less erudite, protest letter was sent by one Vittoria Levi to Dott. Vito Mussolini, the Duce’s grandnephew and an editor of Il Popolo d’Italia, requesting that a correction be published noting that the historic separation of Jews from Italian society was involuntary in nature and recognizing the contribution of Jews to the Risorgimento and the development of modern Italy. In Levi’s own words, “[D]o whatever you want . . . tell us also, if you like, that we Jews belong to an inferior and degraded race . . . but don’t say, in the name of God, that we are not Italians like you!” Letter from Vittoria Levi to Dott. Vito Mussolini, Jul. 16, 1938, SPD b. 146. See Note from Segreteria Particolare del Duce to Interior Ministry (name of individual recipient unclear): Olga De Benedetti – Torino, May 1940, SPD b. 141 (stating that De Benedetti had told her parents she was going to Rome as a tourist and planned to remain until she was received by the Duce and reassured of the temporary nature of the Race Laws or, failing that, until she was arrested). There was some confusion as to how to deal with De Benedetti: an internal memorandum described her as “calm, but I don’t believe mentally healthy,” but her background appeared normal and she had no previous record of antifascist activity. Anonymous Letter to M. Mussolini, Jan. 1938, SPD b. 146. The letter is written in Italian although it bears a Paris dateline. The letter refers to “millions” of Jews suggesting that the author included German, Italian, and possibly other Jews in the group slated for resettlement. Letter to Mussolini from Committee of Italians of Jewish Religion, Dec. 5, 1937, SPD b. 146. The use of the word Holocaust (olocausto) to describe the Jewish tragedy in Europe was, of course, not common before 1945; nonetheless, the use of the term makes the letter jarring from today’s perspective. The organization in question appears to have been particularly assimilationist in character and not necessarily representative of the overall Jewish community.

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laws. While observing the appropriate formalities, Prato also reminded his correspondent to exclude from consideration the 26th and 27th of September, which coincided with the Jewish New Year. Even in the worst of times, some things could not be compromised.71 Like the UCII and other official correspondences, the Segreteria letters suggest the importance of perspective in assessing Jewish behavior in the Race Laws and Holocaust era. From the vantage point of a twenty-first-century democracy, it is easy to criticize these letters as obsequious or implicitly collaborationist in nature. Yet they depict a Jewish community that – far from being passively resigned to its fate – had a sharp and surprisingly accurate understanding of what was happening to it and took reasonable if not especially inspired steps, within the limits of its power, in an attempt to reduce its losses. The Segreteria letters also remind us, yet again, of the dangers of evaluating past behavior with knowledge of subsequent events. Neither the Jewish nor non-Jewish letters envision the collapse of Mussolini, the German occupation, or other events of the post-1943 era: all appear to believe that the regime and its policies will endure forever. Few display awareness of events in Germany or elsewhere in Europe. Indeed, in their mix of obsequiousness and assertiveness, pathos and anger, the letters from Jews are in many respects similar to those from the broader Italian public, with the obvious difference that the Jews wrote as victims rather than observers and were necessarily that much more desperate in their appeals. Neither Jews nor Christians appear particularly heroic, nor does either appear to be uniformly evil or cowardly: perhaps the most striking impression is just how normal, to both groups, the Race Laws quickly came to be. The Italian Example and the Mythology of Jewish (and Italian) Resistance The Jewish response to the Race Laws thus reveals a complex and varied story, different from both the facile condemnations of armchair critics and heroic fantasies of the postwar era. Rather than a uniform pattern of collaboration or resistance, one sees a continuum of responses, depending upon the time period in question and the segment – economic, political, generational – of the Jewish population involved. The various forms of resistance (Amidah), ranging from the creation of Jewish schools to litigation in Italian courts to participation in the armed Resistance movements, are all on display, as are inevitable displays of human weakness and an equally inevitable tendency toward denial regarding the nature of the antisemitic program and the essential goodness of the Italian people and state. Like the rest of the Italian population, there is a significant although not an absolute difference in Jewish behavior between the pre- and

71

Letter from David Prato, Rabbino Capo di Roma, to S.E. [Osvaldo] Sebastiani, Segretario Particolare di S.E. il Capo del Governo, Sept. 20, 1938, SPD b. 144, f. 281.

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post-1943 era, with the important difference that the Jews – who were marked for death in the later period – had little choice which side to be on. The Italian experience suggests the importance of national differences in evaluating Jewish resistance efforts. The characteristic features of Jewish behavior in Italy, including an emphasis on passive resistance (until 1943) and a relatively high degree of coordination with non-Jewish groups and individuals, reflect the unique features of the Italian Jews but also the nature of Italian antisemitic policy and the options available to confront it. Even after 1943, the situation in Italy – a large and popular Resistance movement which permitted identification of Jewish with Italian goals – was vastly different from that faced in Poland, Russia, or other countries in Eastern Europe. Jewish behavior was further conditioned by the Sephardic heritage and the experience (especially in Rome) of living for centuries under direct church rule, a situation without exact parallel in any other European country.72 These factors indicate that it may be fruitless to speak of a single “Jewish” response to the Holocaust, and that one must think instead of a series of responses dependent upon local conditions and the historic experience of the country and community in question. The Italian experience likewise suggests the dangers of evaluating Jewish behavior according to the needs and standards of the postwar era. The tendency to place an exaggerated emphasis on armed resistance, and ignore other forms of nonviolent resistance or Amidah, has been noted in a previous section.73 The post-1945 era, with its tendency to emphasize Jewish particularism (especially in Israel) may likewise result in the ignoring or downgrading of individuals who asserted their rights as Italians, Frenchmen, or members of other national groups rather than in specifically Jewish terms. From a postwar perspective, this may appear to have been na¨ıve or misguided. From the perspective of the 1930s, when Israel did not exist and European Jews did not speak a common language or share a fully developed national consciousness, they appear rather less so; or at least, no more so than other realistically available alternatives. Neither were efforts to protect Jews by working “within the system,” as in the case of lawyers who sought more lenient interpretations of the Race Laws, necessarily cowardly or ineffective in nature. None of this is intended to whitewash Italian Jewry or to deny that it had its share of na¨ıve, selfish, or simply incompetent or opportunistic individuals: rather to suggest that the behavior of Italian Jews must be judged, not according to the political or psychological needs of postwar observers, but with reference to its own time, place and historical context. Finally – and more prosaically – the Race Laws suggest the difficulty of evaluating Jewish behavior on the basis of perpetrator documents. For example, 72 73

On Papal-Jewish relations, see generally David I. Kertzer, The Popes against the Jews: The Vatican’s Role in the Rise of Modern Anti-Semitism (New York: Knopf, 2001). See text accompanying notes 4–5. A postwar perspective may also tend to downplay the influence of the apparently “legal” albeit immoral status of anti-Jewish measures on Jewish behavior. See Chapter Seven.

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the Demorazza files tend to overemphasize people in mixed marriages and (perhaps) those who continued to place faith in the regime, while the files of Jewish organizations and individuals offer a somewhat more nuanced perspective. In Italy, this imbalance is relatively easy to correct because the Jewish (“victim”) testimonies are written in the same language and there are good if not always comprehensive archives in which to consult them. In other countries, the imbalance may be more difficult to restore, and require a creative imagination or the use of less reliable or even unwritten sources. Even when written sources are available one must consider the biases of these sources – notably the tendency of memoirs to be written by wealthier, more assimilated Jews rather than their poorer or more religious cousins – and adapt one’s analysis accordingly.

7 Conclusion: Implications of the Race Laws for Italy, the Legal Profession, and the Study of Racial Statutes

Chapter One posed three principal questions regarding the Italian Race Laws. The first, the so-called Italian question, concerned the uniqueness of the Race Laws and their alleged differences from German and other antisemitic laws. The second – what was described as the universal question – concerned the lessons of the Race Laws for our general interpretation and understanding of racial statutes. The third concerned the role of law and lawyers in the racial program. Many related questions, including the issue of resistance (both Jewish and non-Jewish) and the problem of postwar restitution and reparations, have presented themselves at various points in the intervening chapters. This chapter will attempt to answer these questions. It will proceed from specific to more general themes, beginning with the first (Italian) problem, proceeding from there to the role of lawyers and the reparations issue, then circling back to the second (universal) question. The last question also provides an opportunity to consider the issue – first raised in Chapter Four – of the lessons of the Italian experience for the prevention of future Holocausts, including the role of personality, legal theory, and religious or ethical values in the equation. A chapter of this kind inevitably involves some repetition of themes articulated in previous chapters as well as some dependence on previous sources, which the chapter generally refrains from re-citing. It is to be hoped the author can be forgiven this repetition and, perhaps, a degree of “ahistorical” speculation in the interest of learning broader lessons and providing direction for future researchers. The “Good Italian” Myth: the Race Laws and the Question of Italian Exceptionalism The most frequently debated issue about the Race Laws is their relationship to the antisemitic laws in Germany and other European countries. Were the laws 225

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a foreign import, destined to wither on Italian soil, or were they a uniquely Italian phenomenon with roots in the country’s own history? This is part of a broader argument about Fascism, which depending upon the observer was either a historical anomaly (Benedetto Croce), the last stage of decadent capitalism (a prevalent Marxist interpretation), a bastard version of socialism (as some revisionist scholars assert), or a variety of other explanations that appear regularly in books, newspapers, and academic papers. The debate is particularly pointed with respect to the Race Laws, for the so-called mito del bravo italiano – the notion that Italians, for a variety of religious and cultural reasons, are less prone to violence and hatred than their northern neighbors – depends in no small part upon the outcome. The preceding chapters suggest a complex, nuanced answer to this question. Certainly, the idea of Italian nobility – that Italians are inherently less racist, less prejudiced, or less petty than people in other countries – fares poorly in these pages. While many Italians behaved admirably in the Race Laws and Holocaust era, others (including some Italian Jews) plainly did not, enforcing the laws with gusto and exploiting them for personal advantages. Nor was the bumbling but lovable image of some books and movies accurate: the laws were by and large enforced as written, although the wealthy were (as always) better able than the poor to evade them. Yet if the myth of Italian nobility fares poorly, there remain important differences in the nature and enforcement of antisemitic measures between Italy and other countries. As a general rule, these differences appear to result less from reduced antisemitism than from differences in the institutional structures – legislative, administrative, and judicial – which were responsible for day-to-day application of the laws in each country. In particular, the failure to create and maintain a separate, ideologically motivated entity with broad responsibility for the racial program, on the model of the German SS, was of extreme significance.1 The particular characteristics of Italian Fascism, which was dictatorial in nature but tolerated a higher measure of judicial and administrative independence than Nazi Germany or Stalinist Russia, are also relevant here. Finally, the nature of Italian antisemitism – traditionally more religious than racial in nature and with a somewhat perverse faith in the ability of Italian culture to “cure” the Jewish disease if given sufficient time – is another important factor. Each of these factors contributed to an enforcement pattern which, if not necessarily more lenient, appears to have been somewhat less predictable and consistent than that in other countries. Further research on the enforcement of the Race Laws in different regional and institutional settings, and on

1

See Chapter Three. The Demorazza was small in size and appears to have been staffed largely with prewar bureaucrats, at least until 1943. Local administration was left largely to the prefects or police.

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the relationship of the laws to other Fascist initiatives, would be potentially quite useful.2 Extending the above only slightly, it may be argued that the entire debate regarding the “Italianness” of the Race Laws – like that regarding the Italian character of Fascism itself – is to a certain degree wrongheaded. Rather than a purely Italian or foreign phenomenon, the Race Laws were arguably part of a larger historical pattern in which Italy has adjusted to (and at times initiated) broader trends in European thought and behavior, but expressed them in a distinctive and peculiarly Italian manner, and subject to the often inconsistent enforcement and flexibility of interpretation that characterize the country’s legal and administrative structure. From this perspective, it is no ` of the Race Laws than more productive to assess the “Italianness” (italianita) to debate whether Italian communism was really communism; whether postwar Italy was really democratic in the same sense as France or Britain; or (for that matter) whether Italy is a genuinely “European” country in the first place. The answer to all these questions is both “yes” and “no”: and the challenge for researchers is not so much whether European or Italian elements prevail in a general sense, but how the process of “Italianization” itself plays itself out in specific cases and historical periods. Here again, the Race Laws appear not an historic anomaly, but a quintessentially Italian story with important implications for other subjects.3 Law, lawyers, and the Race Laws Chapter One noted the continuing debate about the role of law in the Holocaust, with some observers preferring to see the Holocaust (if not the entire Fascist period) as an essentially criminal enterprises outside the normal course of law and legal institutions. The debate became particularly strong following the postwar Nuremberg Trials, which established the concept of crimes against humanity and specifically rejected the argument of formal legality (“I was only following orders”) as a defense to criminal charges. While on some 2

3

For a provocative study of the behavior of the Italian military, and the comparison with Nazi Germany, see Jonathan Steinberg, All or Nothing: The Axis and the Holocaust 1941–43 (London: Routledge, 1990). For a more recent source differing with Steinberg – and rather more skeptical about Italian behavior toward Jews in the occupied foreign territories – see Davide Rodogno, Fascism’s European Empire: Italian Occupation During the Second World War (Cambridge: Cambridge University Press, 2006), 362–407. See also MacGregor Knox, Common Destiny: Dictatorship, Foreign Policy, and War in Fascist Italy and Nazi Germany (Cambridge: Cambridge University Press, 2000) (attributing differences between the two countries primarily to historical and institutional factors but not discounting ideological differences between them). The Race Laws also remind us that “harmonization” between Italian and European norms – in the Fascist era or today–may not always be beneficent in nature. See generally Christian Joerges and Navraj Singh Ghaleigh, Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and Its Legal Traditions (Oxford: Hart, 2003).

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level a theoretical discussion, this debate has practical consequences regarding the legal effect of decisions by relevant governments and the issue of postwar compensation.4 The tendency to treat the Holocaust and its antecedents as illegal or criminal in nature may or may not be valid for Germany and the German-occupied countries, especially in the 1941–5 period when a genocidal as opposed to discriminatory program was in effect. For Italy – at least until September 1943 – this approach seems to me much more questionable, both as a historical matter and as a question of legal philosophy. Even after 1943, I am concerned that the approach may cause more harm than good. A consistent theme of this book has been the importance of law and legal institutions in understanding the Race Laws. It is not merely that the laws took the form of legal enactments, were carried on the statute books as such, and (subject to certain special jurisdictional provisions) were interpreted by courts and administrative agencies in a manner similar to other legal rules. It is that the behavior of those who were caught up in the maelstrom – lawyers, judges, Demorazza officials, often the Jews themselves – is difficult or impossible to understand without recognizing that they saw the Race Laws, although perhaps unjust in nature, as legal enactments having the formal and even substantive legitimacy that adheres to such provisions. This is as true of lawyers and judges who defended Jews or sought to restrict application of the Race Laws as of those who promulgated and supported them. The tools that all these actors utilized were essentially legal in nature, and even the most formidable philosophical argument against the Race Laws – that they violated the norm of equal treatment of citizens and the presumption against retroactive legislation – was juridical in origin.5 The issue of Jewish response is especially poignant here. Historians of the Holocaust era often marvel at the alleged passivity of the Jewish victims, implicitly accusing them, if not of collaboration, then of something approaching complicity in their own destruction. Opponents of this view tend to emphasize the physical danger to Jews who resisted and the tradition of passive, nonviolent behavior that is said to have been dominant in the prewar Jewish communities. According to this view, the failure to resist more forcefully was not a result of 4

5

See text accompanying notes 10–19. In Italy the issue of legality concerns primarily the RSI (Sal`o) as opposed to the pre-1943 Fascist regime, which is generally conceded to have been a legal, if not necessarily moral, Italian government. In making this point, one must be aware of the distinction between those sought to restrict application of the Race Laws “within the system,” like Jemolo, Calamandrei, and others, and the underground (pre- and post-1943) which challenged the legitimacy of the entire system. Because of the greater ambivalence associated with the prior position, I have generally avoided using the term “resisters” or “resistance” for it, although I think it is unfair to term such people collaborators, either. See Chapter Four. Even those wholly outside the system would likely have objected to the perversion of the Fascist era judiciary and legal profession rather than claiming that they were not in at least a formal sense “law.”

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cowardice, but a rational calculation that measured likely costs and benefits of resistance and – at least until the very last moments – found that the former outweighed the latter.6 One problem with both these analyses is that they ignore the role of law and its impact on human behavior. Most of us, if we have not received extensive indoctrination in civil disobedience – a concept that has greater resonance in North America than continental Europe anyway – are brought up to obey the laws and those who seem to have legitimate authority to enforce them. People who are pulled over by the police on American or European highways nearly always stop, even though they know that some people are pulled over for reasons (race, age, etc.) that are not relevant to their driving or that the rules may be administered in an arbitrary manner. Part of this is no doubt the fear of punishment; but I don’t think all of it is. It also reflects a learned habit of obeying laws and rules: a habit which is vital to life in civilized society, and which is reinforced by others even if we occasionally stray from it. I think that this tendency to respect laws – particularly among middle class or otherwise “respectable” people – goes a long way to explaining Jewish behavior in the Race Laws and Holocaust period. It is important to remember that antisemitic laws were by no means unprecedented but had been part of life for much of Italian history.7 Indeed, at least until 1943, it was by no means clear what form resistance could take, or whether open resistance as opposed to amelioration/cooperation was the wiser course. Nor was this argument limited to Jewish circles. To this day, heirs of the various anti-Fascist movements debate their different approaches, with some arguing that even legal challenges were a form of collaboration and only those who remained underground qualify as true resisters.8 The power of law is also relevant to the Race Laws’ effects. Many observers have noted the factors – a small Jewish population, the lack of an organized antisemitic movement, the tradition of noncooperation with authority – that supposedly made the Race Laws weaker than antisemitic legislation in other countries. But an opposing reality must be confronted: notwithstanding these countervailing factors, the Race Laws were highly successful at destroying or damaging the Italian Jewish community, possibly beyond repair, even before the German invasion. Part of this anomaly is no doubt attributable to false assumptions, that is, there was probably more antisemitism, and perhaps less of a tendency toward resistance/noncooperation, than many Italians like to 6 7

8

See sources cited in Chapter Six. On the similarity between medieval and early modern canon (church) law and the antisemitic laws of the 1930s, see Raul Hilberg, The Destruction of the European Jews, 3rd ed. (Teaneck: Holmes & Meier, 2003), 7–9. While Hilberg emphasizes German laws many of the provisions that he mentions, including prohibition of interreligious marriage, a ban on Jewish employment of Christian servants, and exclusion of Jews from public positions were the same or similar in Italy. See Chapter Four.

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believe. But the history of the Race Laws is also a demonstration of the power of law and legal institutions, and their ability to compel results even when they are inconsistent with the better parts of a country’s traditions. Both the technical skill of lawyers, who extended the Race Laws to numerous unforeseen and borderline situations, and the anomalies of legal resistance, which tends to validate the very laws it challenges, must be taken into account here. These are lessons we are prone to forget, but of which the Race Laws serve to remind us. Whether and how far to extend a legal analysis of the Holocaust era remains an open question. Many scholars believe the Nazis, while first enacting at least formally legal Nuremberg Laws, “stepped outside” the law after 1941, when they murdered six million Jews without formal judicial process, and perhaps before that date, when they initiated the compulsory euthanasia and other arguably extra-legal measures. A similar view in Italy might distinguish between the pre- and post-1943 periods or, in the latter era, between property confiscations and denial of citizenship rights (which took at least nominally legal form) and the actual deportations (which arguably did not). I remain personally skeptical of this distinction, since – as repeatedly noted above – there was a substantial continuity between pre- and post-1943 policies, and it is likely most participants believed that even the deportations, if morally odious, were made pursuant to the law as they understood it. It may be that these are philosophical questions that cannot be resolved by factual references. But the deportations were the culmination of a very long process: whether or not they themselves were legal in nature, they were unquestionably facilitated by the work of law and lawyers over an extended period. To say that the Race Laws were “legal” is not to say that they were just or legitimate in any sense, but rather that they had the form and at least the superficial content of law and that one cannot understand the behavior of anyone in the process without recognizing this fact. In this sense, I believe that they should remain subject to legal analysis whether one adopts a “positivist” or “natural law” approach to the subject, although it is surely relevant that Italian jurisprudence maintained a positivist emphasis throughout the Fascist period.9 Even for those Italians (notably Catholics) who were inclined toward a natural law outlook it is not clear that a majority saw the Race Laws as violating underlying legal or moral premises, although several did allude to such premises in their arguments. Here again, one must be careful to avoid 9

See Chapters One and Four. My conclusion regarding the need to see the Race Laws and Holocaust as “inside” rather than “outside” law finds echoes in the work of David Fraser, although requiring some adjustment for the differences between German and French behavior (emphasized by Fraser) and the Italian case. I am perhaps somewhat less radical than Fraser in that I am willing to leave open the question of whether Germany (and to some extent other countries) “stepped outside the law” at a certain point in the deportation and extermination process: but with respect to the period emphasized in this book, i.e., the period of discrimination but not yet extermination, I am substantially in agreement. David Fraser, Law after Auschwitz: Toward a Jurisprudence of the Holocaust (Durham: Carolina Academic Press, 2005).

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confusing postwar rationalizations with events at the time, and substituting post-hoc moral judgments from the behavior and motivations of the actual participants. Restitution and Reparation: The myth of Universal Suffering and the (Inevitable?) Limits of Corrective Action If the Race Laws teach us important lessons about the power of law, they also remind us of its limitations. Nowhere is this more apparent than in the story of postwar reparations – or the lack thereof – for damage sustained by Jews during the Race Laws and Holocaust period.10 Here the legal system that proved so creative in extending and expanding the Race Laws proved equally if not more creative in delaying or avoiding compensation, so that the issue remains largely unresolved almost seventy years after the event, and may remain so indefinitely. Like the Race Laws themselves, the failure of reparations11 resulted in part from the peculiar circumstances of Fascist Italy and the postwar settlement. That settlement enshrined the Resistance mythology and its supposed distinction between the majority of Italians, who tolerated Mussolini but eventually turned against him, and a small minority of so-called nazifascisti who collaborated with Fascism during the German occupation. A corollary of this mythology was the notion that all or nearly all Italians suffered from the excesses of Fascism, so that it was difficult for any individual subgroup to claim special 10

11

While the Race Laws were repealed and the principle of restitution was affirmed by the Constitution of the Italian Republic (1947), in practice it has proved difficult or impossible for most Italian Jews to obtain restitution of lost money and property – or even recognition of their unique suffering – in the postwar era. This difficulty appears to have resulted less from overt antisemitism than from a combination of legal and bureaucratic impediments and, perhaps, an ambivalence on the part of the Jews themselves about asserting claims too aggressively, a process the historian Fabio Levi has aptly described as “benevolent inertia.” Fabio Levi, “La Restituzione dei beni,” in Il ritorno alla vita: vicende e diritti degli ebrei in Italian dopo la seconda guerra mondiale, ed. Michele Sarfatti (Florence: Giuntina, 1998), 77, 91. Remedial legislation, including pension and annuity payments for victims of racial persecution, compensation for wartime losses (danni di guerra), and indemnities resulting from a 1961 agreement with (West) Germany eventually provided some assistance, albeit subject to numerous conditions and delays. A blue-ribbon panel chaired by a distinguished parliamentarian issued a detailed report on the spoliation of Jewish property during the Race Laws and Sal`o eras in 2001, which was significant in recognizing Italian responsibility for such losses and implicitly rejecting the myth of national innocence in this period: but the report has yet to result in meaningful compensation efforts. Presidenza del Consiglio dei Ministri, Commissione per la ricostruzione delle vicende che hanno caratterizzato, in Italia le attivit`a di acquisizione dei beni dei cittadini ebrei da parte di organismi pubblici e privati: Rapporto Generale [Anselmi Commission Report], April 2001. I use “reparations” in this paragraph to include both the return of specifically identified property (properly called “restitution”) and generic reparation payments. While theoretically distinct, these concepts tend to merge in actual practice.

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victim status in the manner of, for example, Jews in Germany or Japanese Americans in the United States.12 The concept of universal suffering, with its strong Catholic resonance, received practical sanction from the Italian courts and bureaucracy, who required Jews to satisfy an extraordinary number and variety of tests in order to receive compensation for lost property, employment, and so on. That the courts and especially the bureaucracy were often staffed by the same people who administered the Race Laws, and who were perversely clever in finding reasons to deny compensation, made things still worse. It must be added that many Jews, having been lucky to escape with their lives, were understandably concerned with economic and social reintegration and that reparations remained low on their list of priorities for some time after the war; when the issue was raised again in the 1990s had lost much of its moral and political urgency. Yet the failure to pay systematic reparations is not unique to Italy, and cannot be attributed solely to antisemitism or the peculiar limitations of the Italian legal system. Part of the answer lies in the dynamics of reparations themselves. Reparation, legally speaking, has roots in tort and criminal law, involving monetary compensation for damages that were suffered as a result of another party’s wrongful conduct. (The claims also sometimes involve a contractual element.) To make a claim of this type, one must argue that the conduct complained of was extraordinary in nature and that the victim suffered some particular harm as a result of that conduct.13 If the conduct is widely distributed throughout the society, or if a very large class of people suffer from it, it becomes correspondingly more difficult to establish this harm and (not entirely coincidentally) more expensive to pay the relevant claims. This legal difficulty is often complemented by a perverse political dynamic: the more prevalent and persistent the behavior complained of – antisemitism, racism, etc. – the stronger and more persistent the resistance to acknowledging the behavior and providing financial compensation. Advocates of reparations thus face the anomalous situation that small or trivial wrongs may be relatively easy to correct while large ones – precisely because they are so widely dispersed in the relevant society – may be less susceptible to compensation. A further anomaly is that reparation claims have a tendency to be paid only after very substantial delay, when many of the people who suffered from the alleged wrongs are either already dead or dying 12

13

In the words of Roberto Finzi, if Fascism was (per Benedetto Croce) a “parenthesis” in Italian history, the Race Laws were by extension a “parenthesis within a parenthesis” and not worthy of much attention. Roberto Finzi, “Da perseguitati a ‘usurpatori’: per una storia della reintegrazione dei docenti ebrei nelle universit`a italiane,” in Il ritorno alla vita, pp. 95, 99. I am mixing metaphors a bit by using American language in an Italian context. The concept of reparations for human rights violations being relatively recent in origin, the differences between the common law and civil law systems are perhaps less prominent in this area, making this lapse somewhat more forgivable.

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(the claims may also become more manageable in volume at this point).14 The impact of these factors varies from case to case, but their nature is remarkably consistent. While the Italian case has many special features, it is broadly speaking consistent with this pattern. Indeed, many similar elements are present in other reparations cases. For example, the situation following the issuance of the Matteoli Report in France, which has a larger number of Jews and arguably a stronger antisemitic tradition than Italy, is in many respects similar to that following the Italian Anselmi Commission.15 The arguments made for (and against) reparations to African Americans, a case involving a still larger group and longer history, are eerily similar to those made in the Italian and French cases.16 This does not mean that reparations efforts are hopeless. Important victories have been won in several cases, including the Swiss banks litigation in the United States, reparations to Japanese Americans resulting for wartime internment, and (earlier in time) German reparations to Israel and other countries (including Italy to a limited extent).17 But it is hard to escape that law is often more efficient at committing human rights violations than at compensating them: the Italian case is a sad but hardly a unique reminder of this fact. Although efforts at monetary compensation have been inconclusive, Italy has fared somewhat better in what might be called cultural compensation, that is, an increased sensitivity to racism and antisemitism that results directly from 14

15

16 17

An interesting parallel is provided in the United States, which has made reparation payments for the internment of Japanese Americans during World War II – a plainly immoral action but one involving a relatively limited and discrete group – while so far avoiding reparations for slavery and other depredations faced by African Americans, a far more extensive pattern of behavior and one involving a much larger number of victims. The reasons for this difference are numerous, but appear to relate to the differences mentioned in the text (ease of identification, number of victims, specific nature of legal harm, etc.) rather than any sense that the treatment of African Americans was less grievous or significant than that of the Japanese. On restitution and reparations, see generally “Symposium; The Jurisprudence of Slavery Reparations,” Boston University Law Review 84 (2004). Republique Francaise, Mission d’etude sur la spoliation des Juifs de France [Commission Matteoli], Rapport General, 2000. The German situation with regard to reparations is to some extent unique, since the great majority of Jewish survivors who claimed and/or received reparations were outside the country after 1945. For those areas in which the German situation most closely paralleled that in Italy – for example, the question of Jewish professors and others fired from their jobs because of their Jewish origins – the behavior of postwar Germany presents many interesting parallels with the Italian case. See Ingo Muller, Nazi Justice: The Courts of the Third Reich (Cambridge: Harvard University Press, 1991), 236 (only 17 percent of university professors dismissed by the Nazis were ever recalled to their former positions). See note 14. It must be noted that the latter two cases came as a result of legislated or negotiated (that is, political) rather than judicial settlements, while the Swiss banks litigation settled only as a result of political pressure on the American side. See generally Michael Bazyler, Holocaust Justice: The Battle for Restitution in America’s Courts (New York: NYU Press, 1995).

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the Race Laws and Holocaust experience and that is a significant if sometimes fraying part of the postwar Italian consensus. This sensitivity is reflected in books, films, and (more recently) educational materials, such as the program for “il giorno della memoria” (January 27), which have as a major theme the experience of Jewish suffering during the 1938–45 era. There are also research centers, museums, and other similar institutions that keep alive the memory of the Race Laws and Holocaust, although often as a subset of Fascist abuses rather than in a uniquely Jewish context.18 While not strictly speaking a form of restitution, this cultural evolution is an important response to the Race Laws, and appears to find parallels in Germany, the United States, and other countries in Europe and the outside world.19 Core, Periphery, and the Tendency to Increased Severity: Toward a Comprehensive theory of Racial Statutes One of the principal goals of comparative law is to develop theories and principles which – subject to the inevitable qualifications of time, place, and culture – offer at least some hope of general application.20 Although the Italian Race Laws were the product of a particular time and place, they share many features with other antisemitic and racial statutes and have implications beyond their own historical circumstances. The Race Laws are particularly interesting because, as discriminatory but not (at least in their pre-1943 incarnation) 18

19

20

Among the more famous books to deal with the Holocaust are Primo Levi’s memoir Se questo e’ un uomo (Eng. Survival in Auschwitz) (Francesco de Silva, 1947; Turin: Einaudi, 1958) and, less directly, Il sistema periodico (Turin: Einaudi, 1975) and Giorgio Bassani’s Il giardino dei Finzi-Contini (Turin: Einaudi, 1962). Better known films include Vittorio De Sica’s version of Finzi-Contini (1970) and, more recently, Roberto Benigni’s La vita e` bella (“Life Is Beautiful”) (1997) and Ettore Scola’s Concorrenza sleale (“Unfair Competition”) (2001). Educational efforts include regular Holocaust curricula and visits to relevant historical sites: it is commonplace to see Italian children, few if any of whom are Jewish, visiting Holocaust-related locations like Fossoli or San Sabba or simply synagogues and Jewish archives. Museums have a somewhat more checkered history: there have been numerous proposals for Holocaust-related centers in Milan, Ferrara, Rome and other cities but most have been slow to come to fruition, resulting from the usual mixture of financial and bureaucratic obstacles and, perhaps, a sort of ideological exhaustion as survivors die and the era fades further into history. On Italian films and the Holocaust, see Millicent Marcus, “Return of the Repressed: Italian Film and Holocaust Memory,” in The Jews in Italy under Fascist and Nazi Rule 1922–1945, ed. Joshua D. Zimmerman (Cambridge: Cambridge University Press, 2005), 321–9. For a comprehensive study of postwar Italian responses to the Holocaust era, see Robert Gordon, The Holocaust in Italian Culture, 1944–2010 (Stanford: Stanford University Press, 2012). Explicit and implicit apology, together with various forms of cultural behavior, have been cited by scholars as an important part of the reconciliation process. See generally Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (Baltimore: Johns Hopkins University Press, 2001). See Mary Ann Glendon, Paolo G. Carozza, and Colin B. Picker, Comparative Legal Traditions: Text, Materials, and Cases on Western Law, 3rd ed. (Eagan: West, 2007).

Conclusion: Implications of the Race Laws for Italy

235

genocidal provisions, they provide a conceptual link between the antisemitic laws in Germany and other European countries, on the one hand, and laws directed against African and other nonwhite groups, on the other. That Italy itself maintained a series of racial laws in its African colonies, at roughly the same time as the anti-Jewish laws, makes the comparison that much more intriguing. The Race Laws share many features with similar laws in other countries, although they had many distinctive aspects as well. Like many parallel statutes, the laws contained both a core and a periphery, the former consisting of laws pertaining to the physical separation of the races (prohibition of interreligious marriage, exclusion from schools and other public facilities, etc.) and the latter consisting of laws (e.g., restrictions on real estate or other property ownership) that were designed to reduce or eliminate Jewish economic and political power. It is interesting in this context that the principal exception to the laws, the so-called discriminazione provisions, applied largely to the latter but not the former category. This is by no means a hard and fast categorization, and many provisions (e.g., the exclusion of Jews from specified occupations) had simultaneous elements of physical separation and economic restriction. But the distinction between core and periphery remains a useful and intriguing analytic tool. Is such a structure inevitable? It seems clear that other antisemitic laws of the 1930s, including the Nuremberg Laws in Germany and equivalent statutes in Vichy France and other countries, contained many similar provisions, including rather rigid programs of physical separation and no less aggressive – but sometimes more easily avoidable – rules regarding money and property. (Even in Nazi Germany, the complete liquidation of Jewish businesses was ordered only after Kristallnacht, some three years after the Nuremberg Laws). This is hardly surprising, as the laws arose from common philosophical origins, and subsequent laws (including those in Italy) were influenced although as we have seen not controlled by the German model. More tantalizing, if riskier, is the parallel to statutory schemes involving different countries and racial groups. The American segregation (“Jim Crow”) laws provide an interesting case study. The best known of these laws concerned physical separation: separate schools, public accommodations, and even drinking fountains, together with strict anti-miscegenation laws. Like the Race Laws in Italy, these laws were enforced by a mixture of legal and extra-legal means, although the duration of the laws and the number of people affected were much greater in the American context.21 But there were also formal or informal rules that excluded African-Americans from businesses, professions, and ownership of real property outside prescribed areas, some of which predated the written 21

See generally Derrick Bell, Race Racism and American Law, 4th ed. (New York: Aspen, 2000); C. Vann Woodward, The Strange Career of Jim Crow, 2nd ed. (New York: Oxford University Press, 1966).

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laws and many of which continued in effect, to one degree or another, even after the laws were repealed. This is not to say that the balance was the same in both cases. The economic situation of Italian Jews in 1938 being much further advanced than that of African-Americans after the Civil War, the economic rules appear to have played a greater role in Italy (and Germany) than the United States, which retained more of a singular focus on the miscegenation issue. Nor was the definition of minority status the same in all cases: indeed, the application of the American “one drop” rule in Europe would have resulted in much or all of the Christian population being subject to the racial laws.22 Yet there are sufficient similarities to command attention and warrant further research. If the language of the Race Laws suggests parallels with other racial statutes, their enforcement and administration yield still further insights. Students of the Race Laws have generally concluded that – although the laws arguably generated less enthusiasm than their German or French equivalents – over time they tended to be enforced more rather than less strictly, with exceptions being restricted or eliminated and a higher and higher percentage of disputed cases being decided against the Jewish parties.23 In part, this resulted from specifically Italian trends, such as the increasing harshness of Fascism and the need to find a scapegoat as the war went from bad to worse for the Italian side. Yet here too common themes are discernible. Research on the American South suggests that the Jim Crow laws were originally rather lax, unwritten affairs until formally legislated in the late 1800s, and that the laws became more rather than less severe with passage of time.24 The South African apartheid laws were similarly a matter of largely unwritten tradition until the Nationalist Party government began legislating and enforcing them, with ever increasing severity, after World War II. Increased severity was unquestionably the rule in Germany, where the antisemitic program culminated in all-out genocide. This is not to suggest that things always get worse, or that it is impossible to reverse a momentum toward racism once it takes hold. (The American and South African cases are obvious evidence to the contrary.) But there may be a turning point after which a racial program – if it is not terminated altogether – tends to become more rather than less severe in nature. This appears to result from a combination of bureaucratic forces (institutions are created to carry out the racial program and have a strong incentive to expand that program in order to justify their existence) and, perhaps, from the perverse tendency of race-based policies to confirm the stereotypes on which they were 22

23 24

See generally Ian Haney Lopez, White by Law: The Legal Construction of Race, revised ed. (New York: NYU Press, 1996). On the promise of comparative legal history in the race area – and why there isn’t more of it – see generally Ariela Gross, “Race, Law, and Comparative History,” Law and History Review (2011), 549. ` persecuzione See Chapter Three; Michele Sarfatti, Gli ebrei nell’Italia fascista: vicende, identita, (Turin: Einaudi, 2000). See C. Vann Woodward, The Strange Career of Jim Crow, 67–109.

Conclusion: Implications of the Race Laws for Italy

237

originally based. The imagined enmity of the victim group (Jews, blacks, etc.), and the perceived “cleverness” of their evasion strategies, likewise become a self-fulfilling prophecy. These cases are admittedly quite different, and a comprehensive typology of racial statutes requires further research. But the parallels are stronger, perhaps, than scholars of either racism or antisemitism would like to admit: by providing an example of cruel but not overtly genocidal discrimination the Race Laws can help to bridge this intellectual gap and provide the basis for future study. Resistance, Collaboration, and the Prevention of Future Holocausts The study of the Race Laws is often a depressing enterprise, but against this discouraging background there are some bright spots. In particular, the behavior of individual Italians – lawyers, judges, and ordinary citizens, both Jewish and Christian – who sought to restrict or ameliorate the Race Laws provides some basis for optimism. Even this behavior sometime had mixed motives, a phenomenon observed particularly in the legal profession: and yet it remains preferable to the available alternatives. What factors contributed to the decision to behave in a more positive manner, and what lessons can be learned for future generations? Political affiliation was not necessarily determinative, although it was obviously easier for a committed antifascist to express such opposition. Nor was one’s personal attitude toward Jews, insofar as it can be identified, necessarily crucial. Many lawyers, prelates, and others who assisted Jews came from conservative sectors of society and may be assumed to have grown up with attitudes not especially different from those who behaved differently. By contrast, the Demorazza, which was notably unsympathetic, was (at least until 1943) staffed largely with professional civil servants rather than ideological antisemites in any systematic sense. Indeed, it is not even clear that people who assisted Jews were necessarily better or more noble than those who did not. There were many committed antisemites who were otherwise idealistic and self-sacrificing, and others who helped Jews out of a variety of selfish and selfless motives. If political affiliation was not necessarily determinative, neither was legal theory, at least not when divorced from personal characteristics and a broader religious or philosophical outlook.25 It is, of course, true that some judges, like Peretti-Griva, cited juridical principles like the equal treatment of citizens, the problem of retroactive legislation, and so forth in restricting the Race Laws. It is likewise true that scholars like Jemolo and Calamandrei saw a connection between their own legal philosophies and opposition to the Race Laws. Yet advocates of more expansive interpretation had little difficulty locating alternate principles, no less modern or sophisticated in nature, that could be cited in favor of their positions. Indeed, as seen in Chapter Four, intent-based or 25

See Chapter Four.

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“purposive” interpretation of statutes – arguably the most advanced theory at the time – was frequently cited in favor of a broader reading, since the purpose of the laws was to restrict Jewish influence and a narrower interpretation would tend to frustrate that goal.26 More than ideological differences, it appears that institutional factors played an important if not always decisive role in determining individual behavior. Two factors stand out: the degree of professional independence, and the persistence of religious and other nonlegal or traditions that enabled one to resist injustice without appearing disloyal to the country or its underlying values. Where these factors were stronger the likelihood of resistance was generally speaking higher, and where they were lower it tended to be correspondingly depressed.27 The nature of the Fascist era legal system, and the traditions that motivated Italian lawyers and judges in this period, were discussed in Chapter Four. These include the incomplete “fascistization” of the bench and bar; the continuing monarchist and nineteenth-century liberal traditions, notably in Piedmont and other regions far from the geographic center of the country; and, arguably, the tradition of strong regional loyalties, which Fascism struggled to overcome but never completely succeeding in doing. To these must be added the persistence of a Catholic intellectual tradition which, although more a matter of religious/political philosophy than a purely “legal” theory as such, clearly influenced men like Jemolo, Calamandrei, and Peretti-Griva to take a dim view of Fascist racial policy.28 The extent of these values and loyalties appears at least partially to distinguish Italy from other European countries – although they existed elsewhere – and (more immediately) to distinguish those sectors of Italian society that offered more and less effective resistance to the racial program.29 One lesson of the Race Laws, then, might be that institutional loyalties are more important than legal theory and that – if we wish to prevent similar outrages – we should pay more attention to such factors. This is admittedly an amorphous but not wholly meaningless recommendation. For example, in drafting constitutions for emerging nations, emphasis could be placed on 26 27

28 29

Ibid. The role of personal courage should likewise not be diminished: something which is difficult but not necessarily impossible to teach as training programs for soldiers, athletes, and others can attest. Certainly, for Peretti-Griva and others, what we call “courage” was most likely a combination of inherited and environmental factors. Catholic attitudes find a measure of legal expression in natural law theory, although the relationship is at times a distant one. See Chapter Four. On judicial behavior in Germany, see Ingo Muller, Hitler’s Justice: The Courts of the Third Reich; Michael Stolleis, The Law under the Swastika (Chicago: University of Chicago Press, 1998). On the difference between German and Italian attitudes, especially in a military context, see Jonathan Steinberg, All or Nothing: The Axis and the Holocaust 1941–43. The behavior of Italian judges, and possible reasons that it differed from that in Germany, France, and other countries, is discussed further in Chapter Four.

Conclusion: Implications of the Race Laws for Italy

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institutional arrangements – the independence of the judiciary, the content of the law school curriculum, even such seemingly mundane matters judicial pay or the life tenure of judges – as much as or more than legal philosophy and similar “big picture” issues. Some, although by no means all, of these things were actually done in postwar Italy: The creation of the Constitutional Court, not to mention the broader democratic system, may be understood at least in part as responses to the Fascist experience of which the Race Laws were a not insignificant part.30 The education of lawyers and other legal professionals is also important here. Law schools could devote more energy toward developing a sense of loyalty to the profession – and overriding moral principles – rather than encouraging students to think of law as a purely “service” enterprise.31 Incentives could be modified so that talented and independent-minded individuals are encouraged to spend at least part of their careers in public service, and have freedom to follow their own consciences without fear of financial or other negative consequences. (Life tenure and reasonable pay for judges are an important first step.) None of these changes guarantee that lawyers or judges will resist unjust or evil laws in the future. But they are surely a promising start. The role of religion is likewise significant. Religion has often been a force for evil in the modern world, and it is inescapable that the Race Laws – notwithstanding their patina of “scientific” racism – had a powerful religious basis.32 Yet religion (and specifically Catholic tradition) were also important in providing at least some people with an alternate source of authority and a basis for corrective action. The key, once again, appears to be the maintenance of a degree of religious pluralism and the separation, insofar as possible, of religious authority from excessive political influence. In this area, both Italy and the United States have some distance to travel Perhaps the most compelling lesson of the study is the thin line between resistance and collaboration and the ambiguity of human behavior under conditions of extreme stress. While the “right” response to the Race Laws seems obvious to us today, it was perhaps less so to the actual participants, and the behavior of individuals and institutions often depended more on personality and institutional setting than abstract intellectual categories. There is a lesson in humility here, which is applicable to laymen no less than scholars and 30

31

32

On the postwar Italian legal system, see Mauro Cappelletti, John Henry Merryman, and Joseph M. Perillo, The Italian Legal System: An Introduction (Stanford: Stanford University Press, 1967). Chapter Seven, on the Italian style of interpretation and its postwar changes, is of particular relevance. See Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge, MA: Belknap Press, 1995). There is no real Italian equivalent to this book, but Calamandrei’s book on judges – notwithstanding the continuing debate on his behavior in the Fascist era – provides an interesting counterpoint. Piero Calamandrei, Elogio dei giudici scritto da un avvocato, 4th ed. (Milan: Ponte alla Grazie, 1959). See Chapter Two.

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foreigners no less than Italians (or Jews). The search for truth goes only so far: a bit of decency and compassion, what Italians call misericordia and Jews call rachmanes, are sometimes more important. Not knowing what vision of the right will ultimately triumph, perhaps the best we can do is to build a society in which no one person or organization can impose their vision of truth on the rest of us. With luck, and God’s help, perhaps that will be good enough.

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Index

African Empire, Italian, 6 racial laws as compared to those in Italy itself, 67–68 similarities and differences from domestic Italian Race Laws, 234–237 African-Americans comparison of resistance strategy to that of Italian Jews, 217 failure to obtain reparations for slavery and Jim Crow erasa, 233 Alessandria report regarding Jewish economic activity in, 111 Almansi, Dante interventions on behalf of Jews affected by Race Laws, 210 Amidah activities of Jewish organizations qualifying as, 217 as synonym for nonviolent resistance, 199 legal activities qualify as type of, 209 whether activities of Italian Jewish community qualify as, 205 Ancona report regarding Jewish economic activity in, 112 Anselmi Commission, 233 apartheid (South Africa), 6, 10 common features and differences from Italian Race Laws, 234–237 comparison of anti-apartheid movement with resistance by Italian Jews, 217 comparison to Italian Race Laws, 70

Ascoli, Aldo letter to Demorazza complaining of effects of Race Laws, 211–213 meetng with Antonio LePera regarding Race Laws, 214 authors and publishers, Jewish campaign against in Ferrara, 174–176 Badoglio Government, 19 Bassani, Giorgio as witness to anti-semitic behavior in Ferrara, 183 Buffarini Guidi, Guido, 42 memorandum suggesting eventual separation of Jews from Italian society, 45 business restrictions as applied to quasi-public entities, 80 as common provision of racial statutes, 236, 237 competing influences on, 23 contribution of lawyers to, 62 enforced less stringently than “core” provisions, 76 general approach of draftsmen to, 48 legislation regarding Jewish professionals, 49–50 legislative treatment of stock ownership for purposes of, 58 reasons for sometimes inconsistent enforcement of, 113–114 secondary importance in Ferrara, 166 statutory provisions, 47 treatment in norme di attuazione, 52–55

261

262 Calamandrei, Piero ambiguities in position of, 156 evaluation of performance during Race Laws, 155 role in Salvatore Fubini litigation, 208 role of religion and morality in determining behavior, 236–238 charitable foundations as recipients of transferred property, 95–97 transfers to foundations bearing Jewish names, 100 charities, Jewish as means of resisting the Race Laws, 203–205 CLN (Comitato di Liberazione Nazionale), 218 Committee of Italians of Jewish Religion, 221 Confiscation of Jewish property, 19 conflict of laws application to pension provisions, 92 as reflected in judicial decisions on mixed marriages, 142 Cons. Agr. Prov. Vercelli c. DeBenedetti, 135 Consiglio di Stato decision in usufruct case, 100 Croce, Benedetto, 226 “cultural compensation,” 233–234 DELASEM (Delegazione Assitenza Emigrati), 205 Demorazza (Race and Demography Office), 7, 76 as expanding list of prohibited professions, 81–86 as taking a stricter view of Race Laws than other agencies, 78 behavior of not necessarily determined by anti-semitism, 237 clash with Finance and Corporations ministries over stock corporations, 107–108 composition and character of, 21 concentration of power in, 164 conflict with tourism ministry over Jewish-owned hotels, 86 correspondence with Vatican on mixed marriage issue, 42 creation of, 17 difference with Finance and Justice ministries regarding usufruct transactions, 98

Index files reflect conflicts regarding mixed marriage issue, 25 files show reduced frequency of exemptions granted, 18 need for more study of, 119 treatment of foreign exchange transaction, 104 Deportations Italian role in, 19 doctors, Jewish partially successful litigation on behalf of, 207 domestic servants (domestici) as interpreted in Invernizzi decision, 145 employed by Jews under Race Laws, 84–87 prohibition on Jews employing Aryan domestics in Ferrara, 171, 176 education, legal role in preventing future holocausts, 239 educational institution as core provision of Race Laws, 24 Educational institutions expulsion of Italian Jews from, 17 EGELI (Ente Gestione e Liquidazione Immobiliare) archives reflect confiscation of Jewish property in Turin, 190 newspaper article criticizing handling of real estate confiscations and government response, 116 treatment of mortgages by, 53–55, 103 employment restrictions administration of rules applied to Jewish professionals, 78–84 application of in Ferrara, 177–179 as “peripheral” provision of Race Laws, 24 institution of, 17 entertainment (spettacolo) campaign against Jewish participation in Ferrara, 176 expansion of prohibited activites in, 81 Ethiopia Italian invasion of, 15 evasive transactions, 101 general approach of draftsmen to, 47–48 legislative treatment of, 61 letter by Judge Ricci to Ministry of Justice regarding, 123–125 transfers of property as type of evasion, 93–101 Evola, Julius, 15

Index

263

Exempt status (discriminazione), 17 exemption (discrimination) as applied to Jewish professionals, 79 as applied to journalists and library employees, 79–80 exemption (discriminazione), 23 application of rules for allocating exemptions in Ferrara, 174 as applying to peripheral but not core provisions of Race Laws, 24 effect on possession of radios in Ferrara, 168 general structure of legislative provisons, 63–65 limited benefit to Jewish professionals, 50 request from Vatican, 42 limited effectiveness of, 65

comparison of Vichy regime with Italian Race Laws, 237 difficulty of obtaining reparations in, 233 Race Laws as differing from anti-semitic laws in, 73 Weisberg’s theories about, 11 Fubini, Guido on continuity between Race Laws and earlier practices, 44 on differing orientations of Race Laws judges, 126 precedents to Race Laws noted by, 153 Fubini, Salvatore litigation following revocation of discriminato status, 208 Fuller, Lon L., 8

Falco c. Banco di Napoli, 133 Falco, Mario interventions on behalf of academics and street peddlers, 210 participation in Race Laws litigation, 208, 210 Fascism rise to power and turn to anti-semitism, 15, 17 differences from Nazism, 117 Ferrara administration and enforcement of Race Laws in, 162–187 historical background on city and Jewish community, 163 overall themes in application of Race Laws in, 164 summary of lessons learned from study of Race Law archives in, 181 Finzi-Continis, The Garden of limitations of description of Race Laws in, 163 Florence, Jewish community of, 215 foreign Jews (ebrei stranieri), 17 contradictory provisions applicable to, 93 pharmacies owned by, 83 relative absence in Ferrara, 166 treatment for purposes of pension rules, 92 Forti, Ugo interventions on behalf of Jews affected by Race Laws, 208–210 participation in Race Laws litigation, 208, 210 France, 75 comparison of Vichy and Salo’ regimes, 9

Galante Garrone, Alessandro, 157 Garden of the Finzi-Continis, The, 2 German occupation, 185–187 Germany, 76 comparison of governmental structure to Fascist Italy, 21 conclusions regarding German-Italian differences and reasons for them, 225–227 continuity in anti-semitic policies before and after German occupation, 185–187 difference in philosophy between German and Italian laws, 23 difference in philosophical approach as reflected in pension provisons, 50 differences from Italian legal regime, 6 German-Italian relationship, 3, 15 higher level of violence in, 18 institutional differences from Italy during Race Laws era, 159 Muller’s theories about, 11 occupation of northern Italy, 75 reasons for German-Italian differences in severity of racial program, 117 role in Italian Holocaust, 19 giorno della memoria, 234 Goldstaub c. Societa’ anonima infortuni, 136 Good Italian Myth (italiani brava gente), 2 as reflection of difference between history and memory, 75 conclusion regarding unconvincing nature of, 225–227 little support for in administrative record, 116 Goranic c. Vatta, 140

264 Hart, H.L.A., 8, 9 Holocaust, Italian general description, 19–20 hotels and boarding houses, 86 hotels, Jewish-owned enforcement of rules against in Ferrara, 169–171 Il Tevere (newspaper), 16 articles criticizing pace of real estate confiscations and government response, 116 independent contractors, 88 informers (delatori) role in enforcement of stock corporation provisions, 111 significance for enforcement of business and property rules, 106 Innocent spouses as theme in Race Laws correspondence, 41 “Italian model” of anti-semitism as basis for racial discrimination, 40 emphasis on religious and cultural factors in, 45 Race Laws as an example of, 72–74 institutional factors role in preventing future holocausts, 238–239 Interlandi, Telesio, 16 Invernizzi, 144 Italian Communist Party (PCI), 218 Italian Jews history of, 13–14 special features that affected response to Race Laws, 199–200 Italian Social Republic (RSI) role in Italian Holocaust, 19 Japanese-Americans as recipients of reparation payments, 232 Jemolo, Arturo Carlo ambiguities in position of, 156 comment on Falco case, 134 evaluation of performance during Race Laws by, 155 relationship with Mario Falco, 208 role of religion and morality in determining behavior, 238 Jewish professionals strategies for resisting the Race Laws, 206 Jim Crow Laws (United States), 6, 10

Index common features and differences from Italian Race Laws, 234–237 compared to Italian Race Laws, 69–70 Jona, 143 judiciary (magistratura) evaluation of performance in Race Laws era, 159 general character of Fascist-era judiciary, 21 overall character in Fascist era, 151 role in interpreting Race Laws, 123 significance of structure in accounting for behavior during Race Laws, 240 kiddush ha-chaim (sanctification of life) as synonym for nonviolent resistance, 199 La Difesa della Razza (journal), 16 Landra, Guido, 15 Lateran Treaties, 25, 44 and judicial decisions on mixed marriages, 138 as source of tension between Church and Italian Government, 70 conflict of law implications, 92 law and lawyers significance for understanding behavior of perpretrators and victims in Race Laws and Holocaust eras, 227–231 lawyers, Jewish strategies for responding to Race Laws, 209 legal philosophy limitations in explaining behavior during Race Laws, 238 role in explaining Race Laws decisions, 153 legal positivism role in explaining Race Laws decisions, 153 LePera, Antonio meetng with Aldo Ascoli regarding Race Laws, 214 Levi c. Societa’ focolari automatici impianti termici e Ditta Colombo, 129 Levi, Primo description of Turin Jewish life, 188 local studies application to different regions of Germany and Italy during Nazi and Fascist periods, 191–193 significance for determining interplay of local and national factors, 181 value of in studying Nazi and Fascist regimes, 161–162

Index Maglione, Luigi Cardinal, 41 Manifesto of the Racial Scientists, 17, 22 Martinotti c. Segre, 146 Matteoli’ Report (France), 233 Ministry of Finance clash with Demorazza over stock corporations, 107–113 conflict with other agencies over pension rules, 91 difference with Demorazza regarding usufruct transactions, 98 response to proposed 1940 amendments, 114 Treatment of stock ownership by, 57 mixed marriages, 2 as core provision of Race Laws, 24 Church’s attitude toward, 22 correspondence between Vatican and Demorazza regarding, 42 enforcement of rules against in Ferrara, 173–174, 181 in Italian colonies as compared to mainland, 68 in United States (Jim Crow Laws) and Italy, 69 judicial decisions regarding, 142 prohibition of, 17 prohibition of as common feature of racial statutes, 235 mortgages use as potential evasion technique, 101–103 Moscati c. Cassa Depositi e Prestiti, 134 Muller, Ingo, 11 contrast of Italian to German philosophy described by, 142 relevance of theories to Italy, 21 Mussolini, Benito authority over racial designations, 18 imposes racial laws, 1 letters from Italian Jews, 219–222 letters from ordinary Italians regarding the Race Laws, 193–195 office called to resolve pension interpretation issue, 91 opinion sought on proposed exchange transaction, 104 natural law, 8 role in explaining Race Laws decisions, 153

265 Norme di Attuazione (Rules of Application), 52–58 treatment of evasive transfers, 95 Nuremberg Laws, 75 Italian model as emphasizing religion rather than race as in, 45 Race Laws as independent project rather than Italian version of, 74 Nuremberg Laws (Germany), 9 differences from Italian laws in definition of Jew, 35, 40 effect on Race Laws, 67 parallels to Italian laws in definition of Jew, 28 pension benefits administrative interpretation by Demorazza and other agencies, 88–92 judicial decisions concerning, 132–137 legislative provisions pertaining to, 50–52 Peretti-Griva, Judge Domenico Riccardo ambiguities in position of, 156 evaluation of performance during Race Laws, 154 presiding judge in Rosso c. Artom, 126 role of religion and morality in determining behavior, 238 significance of decision in Rosso c. Artom, 152, 154 pharmacies, Jewish-owned treatment by Demorazza, 81–83 Piedmont (Piemonte) special character of judiciary in, 151, 152 Polli c. Gugenheim, 130 positivism, legal, 9 Prato, Rabbi David, 221 Preziosi, Giovanni, 16 role under Salo’ Government, 19 professionals, Jewish administrative treatment of cases involving, 78–84 propaganda, anti-semitic examples in Ferrara and other cities, 183 property restrictions, 2 allocation of real estate for purposes of, 55 application of in Ferrara, 178 as “peripheral” provision of Race Laws, 24 as common provision of racial statutes, 236, 238 contribution of lawyers to, 62 enforced less stringently than “core” provisions, 76

266 property restrictions (cont.) evasive transactions under the, 58–61 general approach of draftsmen to, 45–46 institution of, 17 reasons for sometimes inconsistent enforcement of, 116 relative laxness of enforcement of, 18 statutory provisions pertaining to real property, 47 transfers of property as way of avoding, 95 treatment in norme di attuazione, 53 treatment of mortgages for purposes of, 55 treatment of real property exchanges, 104 treatment of real property mortgages, 101–113 Provisions for the Defense of the Italian Race, 18 Radbruch, Gustav, 8 radios restrictions on Jewish possession in Ferrara, 166–168 railway and tram workers treatment under pension provisions, 89–91 Ravenna, Renzo as Fascist podesta’ of Ferrara, 165 religion role in preventing future holocausts, 239 Rende, Prof. Domenico article on mixed marriage decisions, 139, 151 Repubblica Sociale Italiana (RSI) (Salo’ Government) continuity of policies with previous regime, 184 resistance and collaboration, general ambiguities as expressed in behavior of key legal figures, 156 difference between reality and mythology as reflected at a local level, 196 difficulty of drawing line between, 21 factors accounting for in Germany and Italy, 191–193 in Turin and Piedmont, 187–191 previous studies in Germany and Italy, 162 role of Jews in national resistance organizations, 219 summary of factors accounting for differences in behavior, 237–240 unsatisfactory nature of distinction, 149

Index resistance and collaboration, Jewish discussion by scholars outside of Italy, 197–199 effect of legal categories on, 229 in general, 197–224 special features of the Italian situation, 199–201 varying responses as reflected in Segreteria letters, 219–222 restitution and reparations difficulty of obtaining in Italy and other countries, 231–234 Roman Catholic Church anti-semitism in pre-modern period, 14 attitude toward mixed marriages, 22, 25 attitude toward mixed marriages as influencing judicial decisions, 142 conservative circles in, 16 evaluation of effect on Race Laws, 71 response to Holocaust, 3 Roman Law (diritto romano), 12 as argument for restricting Race Laws, 152 Rome, Jewish community of archives describe careful but persistent resistance efforts, 216 charitable and welfare efforts undertaken by, 204 Rosso c. Artom, 126–128 significance of decision in, 152 schools, Jewish as means of resisting the Race Laws, 201–203 Segreteria Particolare del Duce letter from Italian Jews, 219–222 letters from ordinary Italians show range of responses to Race Laws, 193–195 Societa’ Vigano’ c. Gasviner, 135 Soviet Union comparison of governmental structure to Fascist Italy, 21 differences from Italian legal regime, 6 Spanish Civil War, 15 stock corporations (societa’ anonime) proposals for new legislation regarding, 113 use in evading Race Laws and government response, 108 street vendors (commercio ambulante) added to list of prohibited activities, 81 interventions by UCII on behalf of, 207 treatment of in Ferrara, 179 UCII intervention on behalf of, 214

Index supply contracts, 88 Tacchi Venturi, Father Pietro, 41, 42 telephone directory elimination of Jewish names in Ferrara, 180 “total mobilization” of Jewish labor (proposal), 19 Trieste evasive transactions and informers in, 106 study of Race Laws in, 191 Turin (Torino) application of Race Laws in and differences from Ferrara, 187–190 disproportionate number of skeptical cases decided in, 147 emancipation of Jews in, 14 evasive transactions and informers in, 106 special characteristics of Jewish community in, 188 Turin Court of Appeals and interpretation of Race Laws, 128 Tuscany study of Race Laws in, 191 UCII (Unione delle Comunita’ Ebraiche Italiane) Interventions on behalf of Jews affected by Race Laws, 207, 215 usufruct (usufrutto) transactions treatment by Demorazza and other agencies, 100

267 Valabrega & Cerrutti (judicial decision), 139 Vatican correspondence with Demorazza on mixed marriage issue, 42 evaluation of effect on Race Laws, 70–71 influence on final draft of Race Laws, 43 victim testimonies importance in evaluating issue of Jewish behavior, 224 violence, anti-semitic outbreaks in Ferrara and other cities, 182–183 Weisberg, Richard, 11 relevance of theories to Italy, 21, 141 “who is a Jew”, 23 consideration in legislative history of Race Laws, 40 application of rules for determining in Ferrara, 174 work brigades (precettazione al lavoro), 19 as demonstrating continuity between preand post-1943 policies, 186 significance for determining Mussolini’s anti-semitic intentions, 118 World War II Italian entrance (June 1940), 18