Fascism and the Rocco Code

The Rocco Code of 1930 was introduced under the Fascist regime that lasted from 1922 to 1943. This regime began with a will to control Italian society through repressive measures (Canali, Reference Canali and Bosworth2009) and developed into a brutal system, allied with the Nazis. Authoritarian in style, that is, putting the state and its interests above individuals and their liberties, Mussolini's Fascist regime strove for a corporatist, absolute dominance of all aspects of Italian life in such a way that it is generally considered to be the first totalitarian order.Footnote ⁵ The regime actively pursued aggressive foreign policies and was domestically violently repressive of press and workers' freedoms, dissent and political opposition (Knox, Reference Knox2002; Gentile, Reference Gentile2002; Paxton, Reference Paxton2004; Bosworth, Reference Bosworth2006). Indeed, according to R. J. B. Bosworth, in his leading study of Fascist Italy, the regime was a ‘vicious and retrograde tyranny’ whose actions at home and abroad ‘must bear responsibility for the premature death of a million people’ and which ‘holds a prominent place in the black book of human misdeeds in the twentieth century’ (Bosworth, Reference Bosworth2006, pp. 1–4).

The 1930 Penal Code replaced the preceding Zanardelli Code of 1889, which came into force in 1890 and was unified Italy's first penal code (Vassalli, Reference Vassalli1974, p. 1037; Pulitanò, Reference Pulitanò2007, p. 85). The Rocco Penal Code was not, though, the only law code formulated by the Fascist regime, which also introduced a new Code of Penal Procedure in 1930 and a new Civil Code and Code of Civil Procedure in 1942. Whereas recent commentators have considered that the two civil codes were not so influenced by Fascist ideology, the Code of Penal Procedure was profoundly permeated by authoritarian ideology and significantly reduced the rights of suspects (Delitala, Reference Delitala1960; Watkin, Reference Watkin1997, p. 42).Footnote ⁶ Of the four, only the Penal Procedure Code has been replaced by a new code, introduced in 1989,Footnote ⁷ with the other codes being retained but adapted and amended.

It is also important to recall at the outset that the Italian Penal Code is not the only law in Europe with a difficult, even undemocratic origin. Just as other Italian codes also stem from the Fascist era, elsewhere in Europe examples can be found of penal codes which, after the fall of a dictatorship, were retained and revised for transitional periods, but in contrast with Italy were later replaced, such as in Germany, Spain and some post-communist states (Bolle, Reference Bolle1999, p. 393; Riera, Reference Riera1996). The current Portuguese Penal Code began as a draft under the Salazar regime, but was reworked before entering into force under the democratic order (Bolle, Reference Bolle1999, p. 393; de Figueiredo Dias, Reference de Figueiredo Dias1995). Similarly, older examples of leading European penal codes, subsequently held up as models, did not stem from democratic orders, such as the Bismarckian and Napoleonic codes (Bolle, Reference Bolle1999, p. 394). Indeed, in Italy, although the 1889 Zanardelli Code was much praised at the time of its introduction as a model of liberal and criminologically classical legislative drafting and went on to be influential on penal codes abroad (including Turkey and Australia), it was not itself unproblematic nor the product of a democratic legal order in today's sense (Pulitanò, Reference Pulitanò2007, p. 85; Vassalli, Reference Vassalli1960, p. 269). Even laws in common law systems, which are deemed to have longer democratic traditions, are not without politically problematic origins: nineteenth- and early twentieth-century British statutes were passed by a parliament that was not democratic in a twenty-first-century sense; key aspects of Anglo-American common law have stemmed from judicial decisions rooted in deeply political and ideological worldviews, as the critical legal history scholars have highlighted (Gordon, Reference Gordon1984; Kelman, Reference Kelman1987, pp. 213–41); and some commentators have shown how certain twentieth-century Anglo-American legal practices were not conceptually or substantively different from those in contemporaneous authoritarian states (Lustgarten, Reference Lustgarten, Joerges and Ghaleigh2003; Fraser, Reference Fraser2005; Ewing and Gearty, Reference Ewing and Gearty2000).Footnote ⁸

The Italian Penal Code is thus not an isolated case of a law with problematic origins, but it is nevertheless a prominent example of a current criminal code with an overt and ongoing link to the Fascist past. Yet critical engagement with the Code has to identify and situate its Fascist dimensions in the complex landscape of more or less democratic and authoritarian legal norms across a range of political systems over time.Footnote ⁹ Also, although on the one hand the Code was introduced under the Fascists and may be associated with that regime in simple terms of its origin, on the other hand the substantive connections between the Rocco Code and Fascism, together with the question of what makes them politically problematic, are less simple. While a full comparative analysis of the Rocco Code's provisions in relation to preceding Italian law, contemporary law in other countries, and later law is an essential part of this analysis, it must for present purposes fall beyond the scope of this article.Footnote ¹⁰ Instead, this article will limit itself to an overview of the Code's genesis, some key examples of its original Fascist characteristics, and an outline of postwar reforms and the Code's authoritarian residue in order to provide the foundations for its principal theoretical argument.

At the time of the Code's introduction, it seems that Minister Rocco's intention was to lay the foundations for a new era of criminal law that would support the Fascist regime and move away from previous liberal principles. He is quoted as declaring, in 1927, when outlining his plans for the new code, that:

Yet despite Rocco's claims, the extent to which the original Rocco Code was distinctively Fascist or authoritarian, or in line with the preceding Zanardelli Code, or otherwise innovative, is a matter of considerable debate.Footnote ¹² The Rocco Code in some ways represented major progress from its predecessor, in its improved precision and internal coherence (Vassalli, Reference Vassalli1960, p. 270; 1974, pp. 1048–49; Wise, Reference Wise, Wise and Maitlin1978, p. xlv), and was welcomed by some as a great step forward (e.g. Battaglini, Reference Battaglini1933–34). When assessing its ideological content, some commentators emphasise that the Code's Fascist influences were mainly confined to a limited number of specific crimes in its Special Part, so that it cannot really be said to have been a distinctively Fascist code overall (Delogu, Reference Delogu1945; Bettiol and Mantovani, Reference Bettiol and Mantovani1986). Others concede that the Code was distinctively authoritarian (thus demonstrating a central attribute of Fascism) in key respects, even though these were not ideologically systematic or peculiar to Italy at the time and the most authoritarian elements of penal law were contained in the special laws that existed alongside the Code (for example Cattaneo, Reference Cattaneo1981, pp. 108–109; Marconi, Reference Marconi1981; Nuvolone, Reference Nuvolone1981, pp. 39, 45). More generally, despite its debateable ideological coherence and character, the Rocco Code was introduced under Mussolini as part of the regime's efforts to develop a new legal order, which involved the interaction of legislative and institutional elements.Footnote ¹³

The Code's more clearly identifiable ideological orientation included a new understanding of the law–citizen–state relationship, which focused on the primacy of the state and sought to reformulate the previous tenets of enlightened and classical criminal law resulting from the eighteenth century (Cattaneo, Reference Cattaneo1981). Fascist understanding of criminal law shifted from the idea of a state–citizen contract under which the power to punish was conceded to the collectivity within limits, to a conceptual model in which the power to punish derived from and existed solely in order to protect and uphold the state, and needed no other theoretical justification (Manzini, Reference Manzini, Nuvolone and Pisapia1981, p. 91). In this light, although much is made by some commentators of the fact that the Rocco Code retained the principle of legality at its heart, confirming in its first article that there could be no punishment without law and thus appearing to adhere to a fundamental liberal value, in fact the Fascist order meant that that principle and the very idea of law changed from their eighteenth-century sense of a guarantee of liberties and a restriction on the state's power to punish, to an authoritarian conception in which law was to be exalted as the expression of state power over its subjects (Piasenza, Reference Piasenza1979, p. 272; Pulitanò, Reference Pulitanò2007, pp. 88–89; Neppi Modona, Reference Neppi modona2007, pp. 983–1005).

Furthermore, the Code's style and structure were also distinctive as compared to the previous Italian Penal Code, and are said to be evidence of the Fascist influence. The Code was drafted in a particular, so-called ‘technical-legal’ (tecnico-giuridico) style, which was intended to develop a new type of penal code focusing on the primacy of law and punishment over the universalist or anthropological concerns of previous criminological theory, both classical and positivist (Vassalli, Reference Vassalli1960, p. 274; Musio, Reference Musio2005, chapter 1). Although not in itself authoritarian, this style was the product of Fascist efforts to develop a new style of criminal law, with the aim being to achieve a legal purity that would allow for criminal law to be enforced in the interests of the state without being tied to a particular conception of criminality. The result was a code that nodded to the need for the classical concept of moral fault, but which ignored it in several offences and, as considered below, in its provision for preventative measures based on a determination of dangerousness (real or political) without the need for prior fault (Vassalli, Reference Vassalli1974, pp. 1044–46).

With regard to its structure, the Code was set out in a way that represented the Fascist regime's political priorities. Whereas post-enlightenment criminal law generally placed crimes against life and physical integrity first, the Rocco Code structured its specific offences, contained in Book II of the Code, in an ideologically motivated hierarchy (Mantovani, Reference Mantovani2007, p. xlviii). This began with crimes against the state, followed by crimes against the public and legal administration, religious belief, public order, economy and industry, morality, racial health, and the family, before coming at last to crimes against the person and property. Again, although this ordering might not be uniquely Fascist in its inherent hierarchy of values (Marconi, Reference Marconi1981), it nevertheless reflects the regime's focus on the state and general priorities.

The Code was also distinctively authoritarian in many of its specific provisions. As emphasised in Wise's analytical overview, the Rocco Code was ‘harsh, vindictive [and] atavistically brutal’, due to its general increase in the levels of punishment, including basic penalties, and through its use of aggravating factors to increase sentences, in addition to its provision for ‘security measures’ that could be used to impose preventative detention (Wise, Reference Wise, Wise and Maitlin1978, p. xxxv; Vassalli, Reference Vassalli1974, pp. 1044–46). In terms of offences, the Rocco Code was characterised by its introduction of, for example, crimes protecting the state, repressing dissent and press freedom, protecting the family and race (including the criminalisation of abortion), and prohibiting strike action in order to uphold the Fascist corporate view of economic activity (Vassalli, Reference Vassalli1974, pp. 1065–69; Wise, Reference Wise, Wise and Maitlin1978, pp. xxxi–xli; Pulitanò, Reference Pulitanò2007, pp. 85–105).Footnote ¹⁴ Consequently, although the Rocco Code is considered not to have been as totalitarian or harsh as contemporary Nazi criminal law and cannot be categorically labelled, it was distinctively authoritarian in key dimensions and reflected significant aspects of Fascist priorities (Wise, Reference Wise, Wise and Maitlin1978, p. xxxii; Mantovani, Reference Mantovani2007, pp. xlvii–lii).

With the fall of Fascism, the end of World War II and the birth of the democratic Republic, Italy took steps to address the least tolerable elements of the Rocco Code but did not entirely replace it. An emergency decree of 1944 led to a first, limited wave of partial reforms, which were followed over the years by further amendments and abolitions (Mantovani, Reference Mantovani2007, pp. lii–liii). As a result, aspects of the Code's General and Special Parts still revealed direct connections with the original Rocco Code long after the war, and some still do today. These connections and associations include both substantive elements and other continuities in terminology and classification from law introduced by the Fascist regime. Although the full details of the original and residual extent of Fascist influences on the substance of the Code would require lengthy exposition,Footnote ¹⁵ five examples are briefly considered here in order to show ways in which the Code's Fascist dimensions were addressed, both completely and partially.

The first example is the place of the death penalty in the Penal Code and how it has acted as a ‘barometer’ of Italian criminal law's passage from a liberal, to a Fascist, to a democratic order. Abolished by the liberal Zanardelli Code, it was reinstated in 1926 and confirmed for the most serious crimes under Articles 17 and 21 of the Rocco Code (del Giudice, 2007, pp. 88, 91), such as leading an armed revolt against the state under the original terms of Article 242,Footnote ¹⁶ or aggravated homicide (such as homicide to conceal another crime, parricide, or homicide with an element of sexual violence) under the original terms of Article 576.Footnote ¹⁷ Whilst recourse to the death penalty was not unusual in Europe at the time, its reinclusion in the Rocco Code is held up as an example of the latter's severity in contrast to the previous, post-Beccarian, more humane penal provisions in Italy and a distinctively intimidatory, Fascist element (Crespi, Forti and Zuccalà, Reference Forti and Palonen2008, pp. 59–60). The death penalty was then abolished again by the 1944 emergency decree, confirmed by Article 27 of the democratic Constitution of 1948, and replaced in the Penal Code with life imprisonment, although retained for certain military crimes under Article 241 of the Military Penal Code until it was repealed for reasons of incompatibility with the ECHR in 1994 (Crespi et al., Reference Crespi, Forti and ZuccalÀ2008, p. 84). In this respect, therefore, a particularly authoritarian aspect of the Code was swiftly removed.

The second example involves Chapter II, Title II of Book II, which covers crimes by individuals against the public administration. These include, among other offences, Article 336, violence or threats against a public official; Article 337, resisting a public official; and Article 338, violence or threats against a political, administrative or judicial body. Recent Italian commentary points out that under the Zanardelli Code, these offences were not applicable if the public official had brought about the resistance or threats by arbitrarily exceeding his or her powers (del Giudice, 2007, p. 459). The Fascist authors of the Rocco Code, however, removed this limitation in order to allow for the enforcement of unconditional obedience to the state. As part of the 1944 emergency revisions after the fall of Fascism, the Code was amended to reintroduce the restriction on these offences included in the Zanardelli Code,Footnote ¹⁸ again illustrating how an authoritarian dimension of criminal law was rectified.

A third example is from the Rocco Code's specific provisions aimed at enforcing a particular set of moral values through the protection of the family, values which current commentary identifies closely with the Fascist political agenda. By way of illustration, the original Code contained specific offences aimed at preserving the sanctity of marriage, such as Articles 559 and 560, which punished with imprisonment offences of adultery and the keeping of a mistress. The former was declared invalid by the Constitutional Court in 1968–1969 and the latter in 1969 (del Giudice, 2007, p. 706). More seriously, Title X of Book II of the Code contained provisions on crimes against ‘the integrity and health of the stirpe [a word indicating family, or race]’, which regulated maternity and strictly prohibited abortion. Although a leading voice in postwar commentary on the Code questioned the significance of Title X, arguing that it was concerned solely with preserving the birth rate and health of the population, rather than being a set of racial laws along the lines of the Nazi criminal code, its aim to enforce a particular set of family and moral values was clearly in line with Fascist ideology, even if, as Delogu points out, some of its provisions derived from the pre-Fascist code (Delogu, Reference Delogu1945, p. 186). Although racial laws were passed by the Fascists later in the 1930s they were not part of the Code, a fact relied on by Delogu to argue that the Rocco Code was not an explicitly racist law and that its provisions on the stirpe were therefore not politically problematic (p. 186). Nevertheless, subsequent commentators agree that this section bore an unmistakably Fascist stamp and it was eventually entirely repealed in 1978 (del Giudice, 2007, p. 702). Again, this example shows how the Code was revised to remove an authoritarian dimension, but in this instance the revision took over thirty years to be completed.

The fourth example is drawn from Title I, Book II of the Penal Code on Crimes Against the Personality of the State. This section of the Code originally contained crimes ‘aimed at repressing acts of political and ideological dissent deemed capable of damaging the Italian State’Footnote ¹⁹ (del Giudice, 2007, p. 337; Crespi et al., Reference Crespi, Forti and ZuccalÀ2008, pp. 633–38). After a range of offences of revolt and insurrection, treason, espionage, and incitement to disaffection, come the particular offences under Articles 269 and 270. Article 269, which criminalised the spreading of rumours abroad aimed at undermining the prestige and reputation of the state, was a clear example of the Fascist drafters' aim of upholding the authority and glory of the state. Article 270, which punished activities related to ‘subversive associations’, is considered to be a paradigm example of the Fascist regime's declared intention to crack down on political parties and other organisations opposed to it, particularly (given its original wording which included reference to the dictatorship of a social class) the communist party (del Giudice, 2007, pp. 371–72; Crespi et al., Reference Crespi, Forti and ZuccalÀ2008, pp. 691–97). According to recent commentary, the offences in this part of the Code were not removed after the war, but were largely deemed to have been impliedly repealed by the Constitution and were not applied, until that is they became useful in the fight against terrorism in the 1970s (del Giudice, 2007, pp. 371–72; Ferrari, Reference Ferrari1981). However, this part of the Code was finally revised in 2006, apparently due to a belated recognition of the conflict the provisions represented in relation to the Constitution and prevailing liberal democratic values, with changes including the repeal of Article 269 and revision of Article 270 to remove the explicit focus on communist activity and reorient it towards violent threats to the state (del Giudice, 2007, p. 338). This example thus illustrates an even longer process of reform and, more importantly, indicates how originally authoritarian provisions became useful to the democratic state in a period of emergency. In this regard, there were clear substantive continuities in the Code and its application long after 1943.

The fifth and final example is Article 53 on the legitimate use of arms, (a key provision challenged by the applicants in the Giuliani case, mentioned in the ‘Introduction’ above). Unlike the last four examples, this provision has not been amended in an explicit reform even though it is clearly authoritarian in origin and character. This provision of the Rocco Code specifically exempts from punishment a public official who uses a weapon or other means of physical coercion, if it is necessary to do so to repel an act of violence or overcome some other form of resistance, in order to carry out an official duty. Under the Zanardelli Code, a similar provision was included under the articles relating to the fulfilment of a duty, legitimate defence and necessity, providing public officials an extra margin of action but only within the terms of those specific forms of justificatory defence. Under the Rocco Code, the drafters made the provision distinct, in order to emphasise the significance of state authority and power (Crespi et al., Reference Crespi, Forti and ZuccalÀ2008, p. 205). Even so, despite the broad terms of Article 53, it seemed prima facie at the time of the Code's introduction that the criminal courts would still have to determine whether any force used by state agents was in fact legitimate under the Code. In reality, however, Article 16 of the Criminal Procedure Code meant that police or military personnel could not be prosecuted for any use of arms without the authorisation of the Minister of Justice, a political officer appointed directly by Mussolini. Consequently, under the Fascists the legal system was stacked in favour of state agents, with the justificatory provision of Article 53 representing more of an inherent presumption than a form of defence that would need to be relied on (Ploscowe, Reference Ploscowe1945, p. 246).

As it stands today, Article 53 is a controversial throwback to the authoritarian era. Most commentators point to the reservation in the first line of Article 53, which states that it applies if the preceding two articles on legitimate defence or fulfilment of a duty do not, in order to show that its scope is limited; other commentators maintain that it is autonomous in its application and constitutes an additional justificatory provision for state agents (Crespi et al., Reference Crespi, Forti and ZuccalÀ2008, p. 205; del Giudice, 2007, pp. 141–42). More serious is the fact that Article 53 still does not contain a requirement of proportionality in relation to the force used. However, given its authoritarian origin and apparent condonation of disproportionate force, the article has been interpreted restrictively in postwar doctrine and practice, in the light of the Constitution and the ECHR, with a requirement of proportionality read into it (Crespi et al., Reference Crespi, Forti and ZuccalÀ2008, p. 207; del Giudice, 2007, p. 142; Skinner, Reference Skinner2003, pp. 243–44). The article itself and its bare terms nevertheless constitute a surviving element of authoritarian law, albeit interpreted through the filter of constitutional and human rights provisions.

These examples illustrate postwar Italy's strategies for dealing with the Rocco Code in the absence of a general replacement: some repeals and explicit amendments over a long period, and some requalification and interpretation of provisions to ensure compatibility with the democratic norms set out in the Constitution and ECHR.Footnote ²⁰ This is not to say that reform projects have been lacking, for numerous proposals have been put forward over the decades since the end of the war, but have not been implemented.Footnote ²¹ This has been due to a range of factors, including lack of political will, flaws in the proposals, the weakness of coalition governments and, significantly, the particular strains and crises that Italy has faced in the form of political terrorism, such as the ‘years of lead’ period of terrorist activity in the 1970s, and the ongoing struggle with organised crime (Palazzo and Papa, Reference Palazzo and Papa2000, pp. 198–201; Musio, Reference Musio2005, chapters 2 and 3; Pulitanò, Reference Pulitanò2007, pp. 102–103). In these difficult circumstances it has sometimes been convenient for the authorities to have recourse to some of the stringent, authoritarian, provisions that were still available in the Rocco Code (as indicated above), supporting the view that a certain ‘Fascistic’ mentality survived (Ferrari, Reference Ferrari1981; Marconi, Reference Marconi1981, p. 136; Dondi, Reference Dondi, Bosworth and Dogliani1999, p. 155). There has at the same time been a tendency in academic commentary to focus on the cleansing effects of amendments to the Code and liberal-democratic interpretation, to reinterpret the presence of the principle of legality in the Rocco Code and its technical-legal style in order to argue that the Code is not so authoritarian or problematic, and to downplay the Code's origins in the name of expediency (see especially Piasenza, Reference Piasenza1979; Neppi Modona, Reference Neppi modona2007; also Pulitanò, Reference Pulitanò2007, pp. 90–105; Wise, Reference Wise, Wise and Maitlin1978, p. xxxii). Consequently, although the predominant view in academic commentary is that the Rocco Code is no longer the same as, or even comparable to, the original code (for example Pulitanò, Reference Pulitanò2007, p. 103), it is nevertheless a Code that has Fascist roots, is at odds with the needs of a modern pluralistic democracy,Footnote ²² and retains disturbing echoes of the Fascist past in its structure and aspects of its residual terms.

The survival of a key area of law with Fascist connections reflects the widely recognised fact that Italian democratisation after World War II did not lead to a clean break from the Mussolini years (Bull and Newell, Reference Bull and Newell2005, pp. 4–9; Duggan, Reference Duggan, Duggan and Wagstaff1995, pp. 1–24).Footnote ²³ Indeed, the conflictual driving forces in postwar Italy of anti-fascism and anti-communism, on top of the long-lasting divisions along these ideological lines flowing from the internal conflict at the war's end (Ginsborg, Reference Ginsborg1990, pp. 72–120),Footnote ²⁴ mean that issues of Fascist connections (although not the only conflictual forces at play in modern Italy nor evident in homogeneous forms) are still relevant and a source of sociopolitical tension today (Bosworth, Reference Bosworth2006, chapter 18; Foot, Reference Foot2009, chapters 3, 5 and 7). Although it has been noted that for some Italians such matters are merely a detail in the country's complex political ‘topography’ (Jones, Reference Jones2008, pp. 4–7), much as Fascist buildings are part of many Italian cityscapes,Footnote ²⁵ they are nevertheless still deeply rooted sources of conflict.Footnote ²⁶

Such issues are particularly important in contemporary Italy given the recent composition of its governing coalition, which included the post-Fascist Alleanza Nazionale party of Gianfranco Fini, who became deputy prime minister under the leadership of Silvio Berlusconi, and the treatment of the Fascist past by key coalition members (Dondi, Reference Dondi, Bosworth and Dogliani1999, pp. 154–56; Bosworth, Reference Bosworth2006, pp. 557–60). This included efforts to downplay the negative associations of Fascism and to recast it as a respectable political movement acting in Italy's best interests by comparison with the misdeeds of other states and political groups, especially Stalinist Russia and communist partisans in Italy (Pivato, Reference Pivato2007, pp. 87–101; Stoltzfus and Bosworth, Reference Stoltzfus, Bosworth and Bosworth2009, pp. 566–85).Footnote ²⁷ This sort of comparative argumentation, highly controversial in Italy, echoes the very relativising process that Habermas found so disturbing in Germany twenty years earlier and which triggered an explosive outcry about relations with the Nazi past (Habermas, Reference Habermas1988). Moreover, the fact that Fascism remains a bitterly divisive and dangerous political force in Italy has also been in the spotlight of public attention following key moments of social conflict in recent years.Footnote ²⁸

Drawing all of the above points together, the suggestion here is that the connections between the Penal Code and the Fascist past are identifiable and significant at two levels. One such level, outlined here but requiring further engagement, is the Code's substantively authoritarian content, both historically and in terms of its effects and continuities today, in the Code and the modes of thinking it supports. At another level are the contextual and associative sociopolitical resonances of the Code's connections with the Fascist past, through its name, structure, origin and lineage. Focusing on this second level of significance, the argument here is that the connection with the Fascist past is meaningful and problematic due not only to (not insignificant) reasons of political antipathy, but also to reasons that are identifiable in terms of legal theory.

The Italian Penal Code, the Fascist past and legal theory

Perhaps the best-known analysis of the legitimacy or otherwise of authoritarian law is contained in the Herbert Hart and Lon Fuller debate, and its subsequent reprisal by scholars such as David Dyzenhaus (Hart, Reference Hart1958; Fuller, Reference Fuller1958; Dyzenhaus, Reference Dyzenhaus1996; Reference Dyzenhaus1997; Reference Dyzenhaus1999). The Hart–Fuller debate arose in the late 1950s specifically with regard to questions about the validity of Nazi criminal law, and Dyzenhaus's work began with similar questions about the law under the South African apartheid regime, before focusing on law in the Weimar Republic and other systems under stress. In essence, and as is well known, whereas Hart argued for a distinction between law as it is and ideas of what law ought to be, in order to uphold a positivist interpretation of law which separated its procedural validity and applicability from moral judgments about its content and substantive legitimacy, Fuller (and subsequently Dyzenhaus) argued that questions of legality cannot be separated from questions of legitimacy, and therefore that the interpretation and application of law have to be understood in relation to a broader moral framework if law is to be of value in society.

The argument presented here, however, is not about the nature of law in terms of its content and compatibility with acceptable morality, substantively or procedurally, nor is it about whether law that could be deemed authoritarian can bear the name of law, or satisfy the rule of law. Rather, the argument here is that there is more to the relationship between law, its legitimacy and democracy than the former's procedural and substantive attributes as assessed and applied according to the latter's tenets. This article argues instead that law's significance and perceived legitimacy, and thus its relationship with democracy, reside not only in how it is made, what it contains and what it is made to do, but also in what it projects, what it is perceived to represent, and what it recalls.Footnote ²⁹ Law's history is an essential element of all of these.

In its historical and current contextuality, the argument is influenced by the work of Habermas, due to his analysis of the relationship between history and democracy, highlighted above, and because of his analysis of the tension between the facticity of law and its validity (that is between law's institutional administration and enforcement, and its contextually bound and bounded legitimacy) in a way that tries to place that analysis within an integrative conception of social life (Habermas, Reference Habermas and Rehg1996, pp. 9, 20, 30, 80–81).Footnote ³⁰ The argument is also influenced by Habermas's vision of communitarian democracy, to the extent that democracy's potential and aspirational evolution into a revitalised form of sociopolitical organisation must be anchored in law, and in shared perceptions of that law's legitimacy (pp. 104, 458).Footnote ³¹ In this light (although the aim is not to present a strict application of Habermasian theory to the issues under discussion) the two branches of the argument are presented as tensions, in order to express the idea that there may be incompatibilities, conflicts and divergences between the operation of a legal order and wider perceptions of its meanings and impact. The first tension considered here is between an internal analysis of law's functionality, and law's external symbolic power and narrative locus (see ‘Law's symbolic power and the narrative locus’ below); and the second is between pragmatic amnesty in the application of law, and the broader social role of memory in legal and political life (see ‘Law and history, memory and amnesty’ below).

Tainted law: facing the violent past and democracy

The above critique of the Italian Penal Code, which has underlined the importance of law's history, together with this very process of discursive critical engagement, serve to support the formulation of a new conceptual model called ‘tainted law’. This model is intended to ground and orientate critical discussion of law and democracy where they are affected by shadows of the anti-democratic past. This last stage of the argument is based on the intellectual position that critical engagement with the law–democracy relationship at the conceptual level is both an academic responsibility and a vital part of democracy's sociopolitical discursive framework, which is essential to its survival. With that broader view in mind, this model is intended to be applicable to the Italian Penal Code and more generally.

The conceptual model of tainted law is developed here by drawing on two theoretical sources. The first of these is Kalyvas's work on the politics of the extraordinary in democracy, which focuses on the origins of democratic orders. Kalyvas has recently argued in support of theoretical engagement with the origins of democratic orders, in order to bring ‘the politics of beginnings and foundings to the center of the study of democracy’ (Reference Kalyvas2008, pp. 4, 295). Casting points of democratic origin in terms of a concept of the extraordinary (based on an ‘eclectic’ reading of Weber, Schmitt and Arendt), Kalyvas has sought to find a way of engaging with the processes of forming democratic polities and related law (although his principal focus is political), in order to address the question of legitimacy and to refocus discussion on foundational ‘normative ideals’ (p. 8). As part of this, he has eschewed a narrow jurisprudential approach that would omit ‘the realm of the symbolic [including] the transformation of shared meanings, the radical reorientation of collective and individual values, and the construction of new political identities’ (p. 5). This approach, it is suggested here, can be used to support the argument that engaging with the extraordinary origins of democracy requires engagement with the extraordinary origins of law, and that those origins are of ongoing importance in evaluating the relationship between law and democracy, precisely because of such wider symbolic and shared meanings.

The second theoretical source for tainted law is the work of Cover, Sarat and Kearns on the relationships between law and violence, particularly with regard to law's origins when they can be said to constitute a form of foundational violence. In this respect it is suggested here that an authoritarian order that is rejected but thereby represents the transformative point of reference in a subsequent democratisation process can be understood in these terms as a form of foundational violence (Cover, Reference Cover1986, pp. 1606–607; Sarat and Kearns, Reference Sarat, Kearns, Sarat and Kearns1995, pp. 3–4). The term ‘violence’ is used as a signifier of forms of (contested) force, which in relation to the Fascist regime mean that the idea of foundational violence is used in a more concrete and identifiable senseFootnote ⁴⁰ than rhetorical (compare Cover, Reference Cover1986) or mythical/mystical (compare Benjamin, 1921/1996; Derrida, Reference Derrida1990). The significance of this appellation is, though, less in the labelling of the originating regime and more in the effect that such labelling has: as violence is a negative term, with its connotations of hurt, force and domination, the importance of identifying a foundational violence is that resulting law can be said to be marked by it or, in other words, to be tainted (Skinner, Reference Skinner2009, pp. 140, 145). In this light, the word ‘taint’ has been chosen because it indicates a stain or blemish, a trace of some bad or undesirable quality, discredit, dishonour or disgrace, and – perhaps most significantly – a contaminating or corrupting influence.Footnote ⁴¹ The suggestion is that law deriving from, or connected with, a violent authoritarian regime such as Fascism is tainted, both because of the effect of such foundational violence on it, and because of its contaminating effect (actual or potential) on the politico-legal structure in which it exists.Footnote ⁴²

Historical, foundational violence in law can thus be read as providing a reference point for evaluating law's legitimacy at later stages of democratic development and for providing parameters for law's construction of the future. The anti-democratic order that is rejected is, by way of that rejection, a foundational indicator of what the new democracy must not be, must not become, and must also not forget. Historical violence can thus be a positive constitutive force in democracy. Yet where such a rejection is incomplete and legal residues remain, taint by the undemocratic past that could disrupt, or threaten, the legitimacy of law, its relationship with democracy, and thereby the democratic credentials of the current legal order and its institutions, is a taint that demands attention. In that sense foundational violence is negatively constitutive, representing a past shadow from which subsequent law must be kept free. In this regard, the conceptual structure of tainted law is put forward as a way of encapsulating the history–law–democracy dynamic and to articulate its politically disturbing dimensions. It provides a way of orientating analysis, both in terms of objects and a methodology for engaging with them.

First, with regard to its objects, tainted law is concerned with law that appears to have been produced, or absorbed and ‘sanitised’, by a democratic order but which is connected, explicitly or implicitly, with the anti-democratic past. Such a connection, or connections, may be significant in substantive terms as well as at more sociopolitically qualitative levels. As the above study of the Italian Penal Code has shown, the substantive basis for critical study is essential, but the law's wider symbolic and narrative resonances are significant above and beyond law's functional dimension.

Tainted law may also take various forms, discretely or in combination. For example, the taint may involve a substantive connection between law today and the law of the problematic past, in terms of surviving legal provisions or a continuity in law's conceptual substrata (compare Fraser, Reference Fraser2005; Lustgarten, Reference Lustgarten, Joerges and Ghaleigh2003). The law may be tainted through another form of direct connection with that past, due for example to its descent from it, or due to an explicit association with it, such as a procedural or institutional link. Alternatively, law may be tainted implicitly through other traces within it of the violent past, such as resonant names, terms, structures or categories, with or without active conceptual continuity. Taint in law may be unattenuated, or could in part be assuaged by doctrinal or other interpretative practices that seek to rectify or temper it. Nevertheless, it is suggested here, the gravity of the past or foundational violence may be such that the taint, be it explicit or implicit, substantive or associative, is indelible: it cannot be ignored.

Second, an analysis of tainted law has to be grounded on a particular sort of study. The aim of tainted law as a conceptual structure is to provide a jurisprudential platform for questioning democratically problematic law, based on examination of historical and current sociopolitical conditions in order to establish the context in which law's (normative and conceptual) substantive, symbolic, narrative and memorial significations operate, and thus why they matter. This requires comparison over time and, as Fraser has indicated, comparison across legal orders so as to identify and assess distinctions and continuities (Fraser, Reference Fraser2005). It also requires a cross-disciplinary approach that draws on law and related theory, as well as politics and history. As such, like the Habermasian approach, it seeks to focus on law and its legitimacy in a way that integrates and imbricates legal analysis with contextual forces.

Consequently, as it has been shown, the construction and conservation of democracy require an ongoing critical relationship with the anti-democratic past.Footnote ⁴³ This is not to say that a democratic order can only exist in a constant state of anguished reflection, nor that it entails a historicist, deterministic attachment to the values prevailing at a particular foundational moment.Footnote ⁴⁴ Rather, it does suggest that law in democracy needs to be appraised in terms of values based on a historical line that must not be crossed, a critically constructive appraisal central to ensuring that democracy and the rule of law remain meaningful (Raymond, Reference Raymond1998, p. 1196; Bell et al., Reference Bell, Campbell and Ní Aoláin2007, p. 83).