Crime and the Fascist State, 1850-1940 1848933991, 9781848933996

Table of contents :
Crime And The Fascist State, 1850–1940
Contents
Acknowledgements
List Of Figures And Tables
Introduction
1 The Science Of Crime
2 Italy And The Universality Of Repression
3 Fascism As Social Defence
4 A New Space Of Repression
5 Earthly Hells And Purgatories
Conclusion
Notes
Works Cited
Index

Citation preview

CRIME AND THE FASCIST STATE, 1850–1940

Studies for the International Society for Cultural History

Series Editors:

Anu Korhonen Birgitta Svensson Editorial Board: Chris Dixon

Titles in this Series 1 Statistics, Public Debate and the State, 1800–1945 Jean-Guy Prévost and Jean-Pierre Beaud 2 A History of Emotions, 1200–1800 Jonas Liliequist (ed.) 3 A Cultural History of the Radical Sixties in the San Francisco Bay Area Anthony Ashbolt 4 Breast Cancer in the Eighteenth Century Marjo Kaartinen

Forthcoming Titles McLuhan’s Global Village Today: Transatlantic Perspectives Carmen Birkle, Angela Krewani and Martin Kuester (eds)

CRIME AND THE FASCIST STATE, 1850–1940

by Tiago Pires Marques

First published 2013 by Pickering & Chatto (Publishers) Limited Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business © Taylor & Francis 2013 © Tiago Pires Marques 2013 To the best of the Publisher’s knowledge every effort has been made to contact relevant copyright holders and to clear any relevant copyright issues.  Any omissions that come to their attention will be remedied in future editions. All rights reserved, including those of translation into foreign languages. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. british library cataloguing in publication data Marques, Tiago Pires, 1973– author. Crime and the fascist state, 1850–1940. – (Studies for the International Society for Cultural History) 1. Punishment – Europe – History – 19th century. 2. Punishment – Europe – History – 20th century. 3. Punishment – Europe – Social aspects. 4. Punishment – Europe – Political aspects. 5. Fascism – Italy – History. 6. Fascism – Spain – History. 7. Fascism – Portugal – History. I. Title II. Series 364.6’094’09034-dc23

ISBN-13: 978-1-84893-399-6 (hbk) Typeset by Pickering & Chatto (Publishers) Limited

CONTENTS

Acknowledgements List of Figures and Tables

vii ix

Introduction 1 The Science of Crime 2 Italy and the Universality of Repression 3 Fascism as Social Defence 4 A New Space of Repression 5 Earthly Hells and Purgatories Conclusion

1 15 41 69 109 135 171

Notes Works Cited Index

177 207 221

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ACKNOWLEDGEMENTS

This book is based on a PhD thesis developed at the European University Institute under the guidance of Peter Becker. His knowledge helped to improve this research enormously. It is to him that I address my first words of gratitude. Other people contributed both directly and indirectly to this book: Pedro Tavares de Almeida, Laurent Mucchielli, René Lévy, Diogo Ramada Curto, António M. Hespanha, Christian Joerges, Dario Melossi, Richard Wetzell, Pierre-Henri Castel, António Matos Ferreira and Anu Korhonen. A grant from the Portuguese Ministry of Foreign Affairs and a scholarship from the Foundation of Science and Technology (Portugal) financed this research. I am grateful to these institutions.

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LIST OF FIGURES AND TABLES

Figure 2.1: International Congresses of Criminal Law, Criminology and Penitentiary Science

56

Table 2.1: Expertise credentials represented in the International Penal and Penitentiary Congresses 52 Table 2.2: Assignment of reports according to the expertise credential or institutional status of the participants in the International Congresses of Penal and Penitentiary Science (1925–35) 54 Table 3.1: Stages of the transformation of the state/fascist revolution according to Alfredo Rocco 83 Table 4.1: Number of individuals in penal institutions (Italy, 1931–9) 113 Table 4.2: Correspondence between criminal responsibility, the legally defined anthropological types and the types of sanctions in the penal code of 1930 119

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INTRODUCTION

On 7 April 1926 Violet Gibson, an Irish woman in her early fifties, waited for Mussolini at the piazza del Campidoglio in Rome, where he had just inaugurated an international congress of surgeons. Having positioned herself near the passage through which the duce would leave the site, she raised the pistol with ‘firm and straight hand’ and shot at the duce’s head. According to the eminent criminologist Enrico Ferri, soon before the attempt a group of students started to sing the fascist anthem, la Giovinezza. Had Mussolini not raised his head ‘in a mystical gesture so characteristic of his personality’, he would have been shot in the head. Instead, he escaped with only a small injury to his nose and Italy was saved.1 Besides a hardening of the xenophobic feelings fostered by the fascists, this attempt on Mussolini’s life was in itself of little political consequence.2 Yet it made a profound impression on the now ageing Enrico Ferri, who had previously expressed great shock to his students when a conspiracy against Mussolini’s life was discovered in early November, 1925. Ferri’s interest in the attempt was now clearly centred on the person behind it, whom he accepted to become the defence advocate. In 1927 he published an article on Violet Gibson in the Revue Internationale de Droit Pénal, developing an analysis of her personality in line with the conceptual framework of the criminological school to which he himself had made such significant contributions – the Scuola Positiva.3 However, the most significant part of the article is the episode that Ferri narrates in the closing pages. Indeed the criminologist tells us that, in the aftermath of the shooting, he joined the examining magistrate, the public prosecutor and a forensic expert on a visit to Mussolini’s office in order to verify whether his nose was healing well. According to Ferri, during this visit Mussolini took him aside for a more private conversation. Fearful of losing the favour of the duce – as he later confesses in the text – Ferri was presented with an opportunity to explain that he was to defend Violet Gibson, at the request of her sister, but that he undertook to do so only because he was fully convinced that she was ‘alienated’. To his surprise Mussolini told him that he was confident that, with Ferri, she would be defended with the ‘serenity of science’. It was thus with enthusiasm and optimism that Ferri concluded his article.4

–1–

2

Crime and the Fascist State, 1850–1940

Ferri was right to be optimistic. Indeed, two experts declared Gibson mentally ill – concretely, suffering from ‘systematized delusion’ (or in another formulation ‘chronic paranoia with hallucinations’).5 This was on the basis of a previous failed attempt committed by Gibson against a girl and a suicide attempt just the year before: allegedly she wanted to ‘repeat Isaac’s sacrifice’.6 These incidents proved sufficient to dismiss both the political and religious reasons that Gibson claimed as having motivated her action.7 Science had stopped Mussolini’s punishing hand, and thus it was possible that Violet Gibson, after shooting the duce, be sent to England in the care of her family and then to an asylum for the mentally ill. Although it is likely that diplomatic pressure played a significant part in this episode and that Ferri overestimated the role of science in the upshot of Gibson’s case, its evocation by Ferri is revealing of the fascist regime, the evolution of criminal law and of the positivist school of legal thought. The most immediate observation to be made is that, despite the fact that penal positivism had initially been associated with politically progressive ideals – with some of its most pre-eminent members belonging to the Socialist Party – in the late 1920s there was a movement of convergence between fascism and the positivist school of penal thought. On the one hand, more than revealing Mussolini’s interest in science, this episode shows us that for the duce the way of science and that of reason of state could, at least sometimes, cross. Furthermore, it revealed that in his eyes the positivist school embodied a certain ideal of science and that Enrico Ferri was still one of its foremost advocates. This book addresses issues that, at first sight, would appear quite heterogeneous – the codification of penal codes, fascist ideology, scientific concepts of criminals and their sanctioning by different agencies of the state, theories on the connections between the judicial machinery and the police and the development of a few international institutions working on penal matters. It argues that, despite the revolutionary rhetoric of fascism, the ‘fascist revolution’ was, to a great extent, developed from within the structures of the state itself. This is not a novelty, at least since the studies of Renzo De Felice on the Italian politic elite of the period and the importance of legal reforms in the construction of the fascist state. However, this book adds on this view by arguing that the new penal code served symbolically as the political constitution that, formally, the regime never had. Breaking with social contract theory, fascist penal law condensed the notion of the state as a super-person opposed to individuals through a characteristically private relationship. In addition, the reform of repressive institutions allowed the construction of a virtually totalitarian system of repression without breaching the law. Another crucial argument of the book is that penal reform in Italy rooted in a transnational criminological culture and was tightly entangled with the wave of penal reforms observed in the interwar period. Juridical institutions such as the ‘habitual delinquent’, ‘dangerousness’ and the corresponding indeter-

Introduction

3

minate sentences, as well as preventive arrest and custody in police prisons, were then brought into the core of juridical codes and were thus fully legitimized. The main objective of this study is to shed light on the ways fascism and penal reform related in both authoritarian and democratic countries in the interwar period.

The Code of the ‘Fascist Revolution’ and the Transnational Criminological Culture Before starting our analysis, it is helpful to underline the interest of the fascist government in criminal law, which, albeit having an autonomy and a consistency of its own, was part of a more embracing interest in law in general, as will become clear later on in this study. For Ferri this interest was easy to understand: in 1927, in a lecture on the project of a new penal code, named the Rocco Code after Alfredo Rocco, Mussolini’s first Justice Minister, he argued that penal codes were the highest expression of the state’s political power. They manifested such power not only symbolically but in everyday life, functioning as a practical guarantee of the good order of society.8 Furthermore, in his view, the regime, which he vigorously supported, acting out of the same presupposition, made the code project a blueprint of the fascist ideological orientation.9 Following this line, criminal law was related with the state in terms of a mediation of its will, on the one hand, and of discipline and rationalization of its power, on the other. Mediation was thus, first and above all, a translation of a state project for society. In reality, this idea appears to have been widely shared, extending to penal actors placed outside the positivistic circles in which Ferri moved. For example, Bruno Franchi, a jurist and director of the penitentiary of Florence, viewed in the penal legislation of 1926 ‘not a simple reform, but the code of a new order’. Similarly, the Justice Minister, Alfredo Rocco, formulated very clearly the same idea: ‘penal laws are the most direct expression of State power … a basic notion for all and unquestioned by the doctrine’.10 Throughout the codification debate, this idea was indeed expressed by many jurists. For example, Mariano D’Amelio, president of the Court of Cassation, senator, vice-president of the Senate and president of the parliamentary commission for the reform of the penal code, echoed Rocco’s words when he mentioned that the reform of penal codes is always a consequence of a particular historical event, generally linked to great wars. The Napoleonic codes, the German penal code – which followed the Franco-Prussian War – and Italy’s Statuto and codes of 1866 stood as the irrefutable examples of this. In the same line of thought, the then ongoing reform was tightly linked to the First World War and was about to give Italy a juridical unity that the ‘unified fatherland’ did not yet have.11 Again, Enrico Ferri was more straightforward when discussing the relation between the penal reform and the new political regime: ‘Each and every revolution has its

4

Crime and the Fascist State, 1850–1940

own penal code’, he declared in a speech on the penal code project delivered at the University of Rome.12 He added that just as the Napoleonic Code reproduced the characteristics of the aftermath of the French Revolution, the new Italian penal code consecrated the conquests of the ‘fascist revolution’. And both shared with the Soviet Penal Code of 1921 the crucial characteristic of virtually all post-revolutionary codes, that is, the aggravation of penalties as a means of strengthening the authority of the state and enforcing the new social order.13 It is known that the fascist regime produced no formal constitution, and that even the fundamental text of Carta del Lavoro was not vested with juridical force. Could not it, then, be the case that the penal code was accorded the function of formalizing juridically the raison d’état of the regime? In other words, was the Rocco Code meant to stand as a sort of fundamental code of the fascist state? A sheer positive answer to these questions collides with the notion, current in legal history, of the force of the juridical traditions. In the Italian case, in particular, it contradicts what is known about the many continuities of the penal system throughout the history of modern Italy. In addition, penal reform in Italy was well rooted in an international criminological culture. As a matter of fact, not long before Gibson’s attempt against Mussolini, on August 1925, more than 600 people from 57 countries gathered in London to discuss the ways in which states should deal with the problem of crime. The occasion was the ninth International Penitentiary Congress and the first of this kind to be held since the beginning of the First World War. Its participants hailed from a considerable variety of professions and activities, ranging from jurists (magistrates and lawyers) and ministerial officers to prison governors, chaplains and doctors, and from law and medicine professors to prison wardens and representatives of philanthropic associations. The presence of dignitaries of the host states and some high-rank official representatives of other participant states, as well as the locations in which these meetings took place, testified to the political importance of the congresses. Eventually, Ferri hailed this congress as the international consecration of the positivist penal doctrines that he had defended for decades. In subsequent meetings, the approved resolutions for penal reform pointed out, as a main reference, the Italian penal reform in the making. Even in the heyday of the fascist regime, Italian penologists and criminologists were not isolated from the international networks of penal experts that had formed, with variable degrees of institutionalization, in Europe and America since the nineteenth century. This applies both at the level of institutional and inter-personal relations, and at that of the exchange and joint fashioning of criminological and penal concepts. In sum, this is a study on institutional and conceptual design taking place in various sites. One of its basic arguments is that the events described apropos of the attempt against Mussolini’s life, although referring to a specific political setting, are linked to a transnational scene through concrete, identifiable, threads.

Introduction

5

Accordingly, the specific thematic and chronological boundaries of this work are defined along the lines of this configuration: that is, taking into account the intersection between the Italian penal history in the 1850s and the late 1930s, broadly considered, and the dynamics of the international penal movement. As far as the Italian case is concerned, this engenders a focus upon the making of the penal code and its links with the various coercive institutes linked to it. Chronologically, the focus is placed mainly upon the period spanning the years 1925 to 1935. While the former marked both the start of the codification process in Italy and the organization of the London Penitentiary Congress, the latter date refers to the Berlin Penal and Penitentiary Congress (these congresses will hereafter be designated IPPC). Indeed, as we will see in the final chapter of this study, this congress signalled an internal divide within the transnational scene, a divide rendered evident by the irreconcilable positions taken vis-à-vis the more aggressive topics of the discourse on social defence and the open demise of the legality principle carried out by the Nazi regime. As this same divide was verified in the Italian penal field in the closing years of the 1930s, it would certainly be interesting to follow these shared developments. However, the latter would demand another type of fashioning of the historical object. Virtually, with this broad transnational scene losing its cohesion, a more symmetrical model relating the Italian and the German cases would be better equipped to address these issues than would the asymmetrical configuration placed, here, at the core of the analysis. This implies that some crucial aspects of the fascist penal legislation, such as the anti-Semitic laws of 1938 and the judiciary reform of 1941, cannot be considered here. Further, other important issues are given a secondary importance in the economy of this study, not on account of any consideration of their intrinsic importance, but because they also call for another form of historical objectification. It is namely the case of the code of criminal procedure, which, with all its practical importance, stayed at the shadow of the debates regarding the substantive penal law, both in Italy and in the agenda of the international penal movement. In the same way, the important question of the racist laws organizing the penitentiary system of colonies must be left untreated, as this entered neither the agenda of the lawmakers involved in the Italian codification process, nor in those of the analysed international organizations.

Criminal Codification as a Historical Object The relations between juridical tradition (together with the institutional procedures linked to it) and politics form a recognizable tension, which constitutes the subject of this study. Indeed, when we take into account the heavy ideological investments of the fascist government in the penal domain, this entanglement

6

Crime and the Fascist State, 1850–1940

of the Italian penal reform in a widely shared penal culture cannot but generate some questions. First of all, did fascism create a new penal regime reflecting its ideology? If the answer to this question was affirmative we could expect Italy to have stayed at the margin, rather than at the centre, of the international penal movement. However, all evidence points in exactly the opposite direction: in the years of the Rocco reform, Italian penologists sought to reinforce their links and position within the international networks formed to deal with the penal question. While Italy had been central to the classical juridical tradition and the positivist movement in the nineteenth century, after a period of decay and loss of prestige, in the 1920s it appears to have recovered much of that prestige and furthermore to have emerged as an inspiration for other countries. Should we then conclude that the discourses of the fascist politicians on the fascistization of the penal system were almost purely rhetorical and that, despite a few touches on the façade of the juridico-penal building, the changes of the penal system derived ultimately from transformations that occurred within the liberal, and thus also transnational, juridical tradition? In this case, how deep were these transformations really? With specific regard to the Italian case, these questions meet a long-running debate on the continuity and discontinuity of the fascist penal reform vis-à-vis the Italian juridical tradition. In the aftermath of the Second World War the issue of the continuity/discontinuity of the Rocco Code acquired some political urgency, as it became necessary to assess how ‘fascist’ the penal code was in the view of its possible substitution. Having kept the great principles of the liberal tradition – the principle of legality, the non-retroactivity of the law, the prohibition of incriminating by analogy and the principle of accountability based on personal responsibility – and benefiting from an aura of technical perfection, the Rocco Code managed to make its way through the Republican period.14 Thus placed in continuity with the classical tradition, criticisms of the code sought to underline that it had also included some truly positivist concepts. Security measures, for example, were sanctions that could be applied as an alternative or in complement to the sentence, characterized by the fact that their duration, instead of being prefixed at the moment of the sentence, depended on the recognition by a judge that the dangerous state had ceased. For the critics of the code, this and other institutes viewed as juridical novelties were combined with the above-mentioned classical principles, creating serious inconsistencies. In the late 1960s and in the 1970s, pressure to effect a profound reform of the penal code increased. But now criticisms emphasized precisely the elements of continuity of the Rocco Code with the authoritarian penal reforms of the late liberal period. From this moment, it is possible to schematize this debate into four significant periods: (1) Late 1960s and 1970s. The historical analyses of the Rocco Code centred on the interplay of juridical technique, ideology and politics, and on the histori-

Introduction

7

cal role of the technico-juridical school of penal thought. In general, this penal code was considered to develop the legislative trends of the late liberal period in Italy, albeit cancelling the more socially progressive elements that juridical socialism had then brought into the penal scene.15 (2) Early 1980s. The debate on the penal code of the fascist regime focused, now, on the relations between the guarantistic principles it maintained, fascist ideology and the logic of exceptions to legality. The Rocco Code was placed in a juridical continuum with the basics of the liberal penal system and its ‘normal penal order’. Nonetheless, it was observed that the fascist penal legislation gave further development to the logic of exceptions already present in nineteenthcentury Italy, either kept external to the code or incorporated into this as derogations to the legality principle.16 (3) Early 1990s. The theme of technique was again brought to the fore of the analysis of this code, but now in connection to the political and social role of penologists. On this account, the Rocco Code, even though formally keeping many continuities with the liberal juridico-penal tradition, was, by means of certain concept of technique, set open to political instrumentalization by penologists supporting the fascist regime.17 (4) Late 1990s and early 2000s. The question was now addressed within a considerably wider frame. One the one side, the Rocco Code was set in connection with the whole criminal politics of the fascist period; on the other, this period was placed within a broader chronological axis, an operation that aimed at apprehending the permanent traits of Italian penality. On these grounds, while at the systemic level and at that of the juridical tradition, the fascist penal legislation was still to be viewed as continuous to that of late liberalism, some significant changes in the Rocco Code, vis-à-vis its predecessor, were now brought to evidence. These resulted from the incorporation of norms hitherto articulated at the margins of the penal code (and amounting to such permanent traits of Italian penality); and the fabric of norms out of fascist ideology, the impact of which was now considered much more than a matter of inconsequent rhetoric.18 Before moving on towards a methodological reflection, I would like to make a few comments on this debate that spanned more than three decades. In general, it was fashioned by the question: how fascist was the Rocco Code and related penal legislation? Even when not explicitly formulated, this question constituted the running theme of these analyses. Ultimately, the later studies clarified that much of what the former authors had identified as the elements of continuity of the fascist penal code with the liberal penal order lay, not exactly in the penal code as such, but in its relation with other normative and institutional configurations, namely that of police and extraordinary legislation of an eminently authoritarian, anti-liberal, character. Additionally, traced back to preunitary Italy and remaining active in the post-war period, more than a specificity

8

Crime and the Fascist State, 1850–1940

of the fascist period, these constituted permanent traits of Italian penality. Yet here a new question emerges: how specifically Italian were these traits in which the fascist regime encountered the potential to develop a penal law suitable for its repressive needs? And, in this sense, were they really alien to the broader enlightened penal tradition? Expanding beyond the confines of the Italian case, the inquiry on the Rocco Code must now include these questions. Yet another methodological issue is of paramount importance here. The question of how fascist is the Rocco Code? was always formulated, more or less explicitly, against the backdrop constituted by the concept of ‘juridical tradition’ (i.e. how new was the penal code of 1930 with regard to the juridical tradition?) However, and although central to the analyses above, this concept was never problematized in a historical way, that is, approached from the viewpoint of its construction, representation and mobilization by the penal actors. In contrast with these views, I would like to argue that this rather a-historical evocation of tradition, thereby suggested to act ex machina on the codification process, is, in reality, a reflex of the legitimizing devices of jurists, and that it impedes a full historicizing of the practices of juridical codification which is at stake here. As far as the continuity of the juridical tradition throughout different political periods is concerned, other studies on penal codes in the universe of the civilian tradition have reached similar results, albeit not without a few internal contradictions. The work of Pierre Lascoumes, Pierrette Poncela and Piere Lenoël, Au nom de l’ordre (1989), an exhaustive study of the French revolutionary and Napoleonic criminal legislation, is a good example of this, and is interesting to compare with the analysis above. Building on the idea that the law can be understood as a system of values and interests protected by sanctions, in Au nom de l’ordre, incriminations are viewed as a means of protecting certain institutions and fundamental beliefs considered, in a given historical situation, as fundamental for the ordering of society. The historical study of law is thus equated with the analysis of the juridical formalization of values and interests to which the legitimate political power decides to accord a ‘particular protection’.19 In this case, this methodological orientation gave way to an analysis centred on incriminations (i.e. sanctioned patterns of behaviour) and respective sanctions (the system of penalties). While the latter was approached mostly in a descriptive manner, the analysis of incriminations deserved greater attention. Concretely it was carried out as an observation of the rationalities underlying them, through the uncovering of the principles of coherence and intelligibility that structure the legal texts. In practice, the rationalities underlying incriminations were determined on the basis of the values and interests they protected.20 As a consequence of the application of this methodology, the Napoleonic Penal Code elaborated between 1801 and 1810 was described as a reformulation of the preceding one and in continuity with it, despite having been authored by a

Introduction

9

new generation of jurists and out of a quite different political programme. Even while the code of 1810 is described as an attempt to rethink its ‘model’ with a more practical orientation, the authors concluded that it introduced no significant reform. This ‘fundamental continuity’ was justified with the maintenance of the hierarchy of protected values and interests, with the identical categorization of offenses, and with the similar scale in the measuring of the gravity of sanctions.21 All in all, this study of the French penal legislation implies that, once the model was set, the political investments on the penal order did not really originate significant ruptures in the juridical order. This becomes evident in the comparison of the 1791 penal code with the Napoleonic one: even when according a particular ideological matrix to each one of them – the former aiming at securing the triad ‘democracy, laicism and perfectibility’, the latter targeting the values of ‘empire, family and business’ – the authors viewed a substantial juridical identity linking the two texts.22 In the end, their expressed objective of departing from the intentions and justifications stated by the lawgivers and ascertain the rationalities implied by the actual juridical norms resulted in the reinstatement of tradition as the main driving force within the juridico-penal field, and in its practical disengagement from the criminal policies that succeed the foundational moment of modern penality. Henceforth, the latter emerges as the only historical moment in which the political rationales were translated into substantive aspects of the penal system. In the light of the above discussion on the Rocco Code, ultimately pertaining to the tradition set by the Napoleonic Penal Code, this search for its foundational moment has a somewhat disconcerting implication: that, notwithstanding the fact that the Rocco Code was so heavily invested by the fascist state to the point of being presented as a summoning of its values and a reaction to the classical school, it remains substantively a juridical embodiment of the values of enlightened jus naturalism.23 From a historical point of view, these considerations allow us to highlight what seems to constitute the almost structural resistance of modern juridical codes to become an object of historical analysis, as this is limited to the moment of the paradigmatic foundation of a certain juridical order, usually associated with a political revolution. This ‘law of the code’ thus remains substantially untouched by historical events. Viewed as a great bloc formed, in its essential aspects, once and for all, this concept of law calls for an origin, a moment of foundation of which it stands as a faithful memory. The code thus appears difficult to historicize, retaining a tradition in such a pure form that it does not belong to any historical time in particular. Drifting from model to model, willing to apprehend the code in all its historical connections, historians will eventually seek the supposed root cause of codified law – the first code, the model. This fits particularly well with many of the approaches on the Rocco Code. In matter of fact, and independently of

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Crime and the Fascist State, 1850–1940

the degree one may attribute to the impact of fascism on criminal law, it follows from these interpretations, namely those constructing on the notion of ‘instrumentalization’, that fascism acted on the juridical body as an external force that did not affect it in its innermost features. This study benefits immensely from the now long-running debate within Italian legal historiography. Nevertheless, the importance that the law, in general, and the penal legislation, in particular, had for Mussolini’s government, the connection of Italy with the international penal movement, and the challenge of reassessing the question of continuity/discontinuity from a historical stand demand another type of approach on this issue. Instead of taking as point of departure a self-evident, fixed concept of ‘juridical tradition’ used as a hermeneutical tool, it is important, at this point, to consider codification itself as a historical object. To be sure, codification consisted of a series of practices that took place in specific political, professional and academic contexts, and involved a large number of actors with different status, intellectual prestige, ratios and interests. Codification was certainly conditioned, even structured, by the juridical tradition, and the fascist lawmakers invented no juridical institutes anew. However, they certainly used the materials at their disposal to fabricate a new juridico-institutional synthesis, for the sake of which they mobilized certain resources instead of other possible ones. Thereby, more than simply instrumentalizing the inherited juridico-penal order to their ends, they recomposed the syntax of the penal institutions, an operation that bears a properly creative dimension. In this approach, tradition is placed at the core of the historical problem: why and how was a consensus on the permanence of the juridical tradition obtained? Simultaneously, we must ask what new institutional arrangements and kinds of practices did the juridical tradition, now roughly understood as a historical agent, produce. In this historically oriented approach, much of the debate on the continuity or discontinuity of the liberal legal tradition under fascism loses importance. Indeed, a position with regard to this question appears to depend solely on the elements one considers to form the ‘core of the juridical tradition’, a judgment that, because of its doctrinal nature, is more juridical in nature than historical. From the viewpoint of the historian, as Pietro Costa rightly observes, juridical tradition is, first and above all, the discourse of jurists, that is, the ensemble of utterances of this particular professional and scientific community.24 This implies that, instead of featuring as the tradition’s more or less mechanical effect, the fabric of law is thus tightly linked to the very representations of juridical tradition that, among other elements, lawmakers and jurists construct and mobilize.25 In this way, we can approach criminal codes as historically constituted objects, avoiding their reduction to a few basic principles and categories more or less constant throughout changing social and political contexts.

Introduction

11

Towards a Political Anthropology of Interwar Europe This reflection on the debate on the continuity versus discontinuity of penal law in the fascist regime leads us to a final methodological remark: fascism is no more a consensual and self-evident concept than ‘juridical tradition’. The nature of fascism has indeed been at the centre of scholarly analyses for decades, with quite frustrating results. Over and above the failure to provide an uncontested answer, the debates involving historians and political scientists have showed, more decisively, that the question is approached from theoretical standpoints that vary too greatly to even allow a minimum consensus on a definition. Historian Aristotle Kallis has mapped this debate efficiently, distinguishing two types of approaches – diachronic and epochal. The diachronic paradigm takes fascism as an ideology continuous with nineteenth-century ideologies of revolutionary ultra-nationalism, opposed to Enlightenment individualism and liberalism, which culminated in interwar Italy. During this period, fascism qua ideology expanded in Europe, incorporating new elements according to the different national contexts. From this perspective, in each one of these contexts it is possible to identify the ideological core of fascism: the same combination of rejections (namely, anti-liberalism, anti-capitalism, anti-socialism), ultra-nationalism, authoritarianism and, in different degrees and styles, charismatic forms of leadership and racist policies. In contrast, epochal approaches emphasize the diversity of so-called ‘fascist’ political experiences according to specific national contexts, as well as the inconsistency of fascism as ideology. Historians working on these grounds also underline the disparate nature of elements combining in interwar right-wing, authoritarian, regimes, even when these referred explicitly to fascism. Last, and perhaps as the crucial argument, even in Italy the development of the fascist regime occurred at the expense of the initial ideology of the fascist movement. It namely implied a process of state institutionalization and the corresponding repression of nonstate forms of political violence, as well as the neutralization of rival concepts of fascism. Kallis takes a well-argued compromise solution, arguing for a dialectical approach to fascism. In this way, he says, the two levels of analysis – diachronic and epochal – may provide deeper insight into, first, how inter-war fascism constituted a period- and context-specific articulation of a broad ideological genus, shaped under the dialectics of ideas, actions and reactions to the outside world; and, second, how the experience of this ‘fascism’ can be exploited fruitfully in order to shed light on the diachronic mould from which it derived, historically and intellectually.26

In the study that follows, this distinction and the related compromise solution have some pertinence: the codification process – epochal – was key in defining, or re-defining, fascist ideology – diachronic – in the context of its institutionalization. However, this study points out the necessity of understanding fascism as

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Crime and the Fascist State, 1850–1940

part of a wider configuration and beyond the contents, diachronic and epochal, of its definitions. As we will see, an approach on fascist Italy from the perspective of criminal codification in a transnational setting reveals a set of values, norms and other contextual factors that moulded and limited the contents of evolving notions of fascism as well as their institutionalizing possibilities. Therefore, while centred on the Italian case, this book reads more as an attempt to develop a political anthropology of interwar Europe than yet another contribution to the debate on the nature of fascism. The leitmotif of this study resides in the observation that the period covering the development of the Italian Penal Code of 1930 – i.e. the time bracket 1925– 30 – coincided with the fabric and expansion, at an international plane, of an Italian penal model. In order to build on this hypothesis, this volume integrates a historical analysis of that code with an inquiry into a certain type of expert network – namely networks which acquired a strong institutionalized character, and involved actors both linked to administration and justice apparatuses and others less bound by official obligations. Chapter 1 focuses on the development of an international scene of expert debates and design of the norms underlying the reform of penal institutions. It is argued that this arena created the value of scientific, to the detriment of juridical, forms of criminal repression. This chapter combines an analysis of codification principles and practices since the Enlightenment and a comparative approach on national responses, in the nineteenth century, with the problem of recidivism. Against this backdrop, the international debate on dangerousness and indeterminate sentencing allows us to observe a significant transformation in shared perceptions on the nature of criminality and disorder and the ways the state was to tackle them through science and the law. Chapter 2 further explores this analysis, albeit now focusing on the interwar period and taking the Italian case as a vantage point. It shows that, during the 1920s and the 1930s, a vast and intricate institutional network was formed at an international level to work on what we can call the penal question. Armed with a diversified arsenal of instruments – associations and bureaus, congresses, periodical publications, the edition of criminological and penal studies, rules for the administration of prisons, projects of an international criminal court, etc. – this network assembled the representatives of a high number of countries with very different political regimes. It represented a sort of penal international, from which the USSR was significantly excluded, that responded to precise historical circumstances with the contours of a political, moral and socio-economic crisis. Chapter 3 focuses on the changing practices of penal codification in Italy after the fascist takeover of power, in 1922, and during the years of construction of the fascist regime. With crime gradually emerging as an offense against the state, criminology became a sort of political idiom. Through the technical-

Introduction

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juridical school of legal thought, highly influential in Italy and abroad from the 1910s to the 1930s, criminal institutions became gradually viewed as a matter of defence of the rights of the state, as if this were a private person threatened by other private persons (criminals and disorderly individuals). This privatistic turn in the concept of codification combined with the idea that state control could not seek justice, but aimed at neutralizing risk through interconnected institutions of social defence. Chapter 4 analyses the juridical, moral, religious and scientific representations of criminals in Italy during the 1920s and 1930s. I address here the institutional and political consequences of the newly codified concepts of criminal responsibility and dangerousness, namely those linked to the figures of the ‘habitual delinquent’ and the ‘delinquent by tendency’ consecrated by the Italian Penal Code of 1930. This chapter highlights that the penal institutions created by the fascist state helped to shape a vision of the society built on the concepts of danger and state protection. Combined with a plurality of biological, sociological, religious, sexual and gender-related themes, these concepts eventually crystallized around certain target groups considered as particularly deserving of the attention of the state. A thus contextualized analysis of criminal reform provides a suitable frame for the development of a political anthropology of fascism. Lastly, in chapter 5, I expand this line of inquiry beyond the Italian case. More specifically, I analyse the penetration of the new juridical categories and sanctions in other countries and some of their institutional consequences. Criminology constituted a new cognitive framework on the nature of society and the state, and had, therefore, an important political significance in the 1930s. The centrality of the notion of ‘dangerousness’ in the penal system must indeed be related, not only with specifically juridical and criminological changes, but, more broadly, with a new political form of responding to a perceived crisis. Perceptions of crisis, as well as responses to it, were strongly dependent on power relations and institutions, but no less on cultural meanings. At the juncture of culture and politics, criminal eugenics provides a fine observatory of the different ways of relating political and cultural perceptions of disorder and their possible remedies. Now, to fully grasp the nuances besides juridical norms and institutional reforms, it is particularly helpful to compare Italy with other European countries, including those departing from its remedies – namely Nazi Germany in the case of criminal eugenics – and those revealing similar cognitive and cultural frames, and institutional responses. Also with a Catholic background and a split between conservatives and positivist progressives, Portugal and Spain fall into the latter category. The fact that, in the 1920s and the 1930s, they also experienced right-winged dictatorships makes a comparison with Italy all the more interesting, allowing us to disentangle the cultural factors at play in the new politico-symbolic configurations of social order from the more specific ideological elements.

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1 THE SCIENCE OF CRIME

Criminal Codification: Between ‘Justice’ and ‘Good Government’ Legal codification has been generally treated as a historical process that, despite having older intellectual and institutional roots, began in the mid-eighteenth century and extended over the first few decades of the nineteenth century. It is not possible, nor particularly useful here, to enter into an analysis of the many subtleties of a process embracing a great many countries in Europe and America, a considerable variety of religious and philosophical backgrounds and just as many political, institutional and social settings. Nonetheless, it is important to summarize some of the crucial aspects of criminal codification as a historical process. First of all, legal codes, in the sense of ensembles of unitary and systematic norms exhausting all the juridical relations considered to form a given juridical field, are a historical novelty of the nineteenth century and can be distinguished from other types of law compilations.1 Codification had thus, from its very onset, a properly formal, or technical, side: it pursued an ideal of systematic unity and coherence. It implied the formulation of economic criteria in the organization of the law, a labour that had its theoreticians and supporters in England and in a few countries of Continental Europe. In sum, the form of the code must be understood within a simultaneously scientific and political enterprise. It is also from this viewpoint that we can look at the fundamental concept that each and every offense and the respective sanction must be defined by the law – the so-called ‘principle of legality’. Yet this technical demand, long well entrenched within some sectors of the juridical professions, namely those intent upon ordering the legal sources and in recovering the Roman law, became particularly active when it was called to respond to a proper political claim – the centralization of power in the state. Absolutist monarchs and their entourage led in this enterprise. It has been held that over the course of the Enlightenment and the nineteenth century there existed codification attempts whenever there was a serious interest and a corresponding political capacity to centralize political power in the state (e.g. Prussia, Austria, Lombardy, Piedmont, Florence) and, conversely, codification was lack-

– 15 –

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Crime and the Fascist State, 1850–1940

ing where that effort was politically unimportant (e.g. Venice and Naples).2 In reality, codification ideally aimed, aside from the economic principles referred to above, at the derogation of all other jurisdictions competing with the state. This implied, of course, the recognition that state law followed a ratio of its own that superimposed on tradition and, additionally, that such a state ratio was rendered manifest through the work of legislators, with which judges were to comply. At stake in the codification enterprises was the actual curtailment of juridical particularisms, which were mainly local (linked to customary law), social (dependent on social status) and institutional (defining special jurisdictions).3 It is thus easy to understand that the full development of this movement eventually took place only in the revolutionary and post-revolutionary contexts of the late eighteenth and early nineteenth centuries. Their ideological orientation and specific contents could not fail to be marked indelibly by the main social actor leading these transformations – the bourgeoisie. The influence of the bourgeoisie is most evident in the substantial reduction of the differences between the various juridical subjects characterizing the medieval and Old Regime law. The unification of the juridical subject actually constituted a precondition of the task of juridical simplification and systematization, a process undoubtedly linked to the exclusion from the field of private law, and particularly from commercial law, of all subjective predicates foreign to the logic of the contract and the trade bond.4 We can add that this type of conceptual and institutional operation also had a profound impact on the penal law. In matter of fact, it fostered the postulate of a subject endowed with a principle of action free from concrete living conditions – a ‘free will’ – and partaking of the core ethical values with which the bourgeoisie, generally speaking, identified. While the penal law was subtracted from all private and religious jurisdictions, the old theme of punishment thus came to be viewed in terms of a relationship between an abstracted individual and an also increasingly abstract, depersonalized, notion of State. Having emerged as a fundamentally doctrinal problem, the penal question took the form of a well-defined set of problems. What is the objective of punishment? Who has the right to punish and on what grounds? Who can be punished? What kinds of penalties are admissible and recommendable?5 In France, expressing the loss of legitimacy of the Old Regime penal order, the need to answer these questions through the codification of criminal law was presented by the États Généraux, on the eve of the French Revolution, as an uppermost priority. The assembly and systematic organization of penal norms had, as their most immediate objectives, the enforcement of the principle of legality, the territorial standardization of the law and the replacement of the aristocratic system of justice with an equalitarian model.6 The principle of legality was adopted, first and foremost, as a way of countering the wide discretionary power of magistrates in their interpretation and enforcement of laws, viewed by

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the reformers as a cause of uncountable acts of arbitrariness and injustice. Later crystallized into the formula nullum crimen, nulla poena sine praevia lege (‘no crime, no punishment without a previous penal law’), it transformed completely the role of judges in trials, virtually revolutionizing the criminal field.7 With the implementation of the system of the jury in 1791, which delegated on the latter the task of reaching a verdict in matters of fact, as opposed to matters of law, judges were left with the function of ‘opening the law’ (‘il faut qu’il [le juge] ouvre la loi’, in the words of penal reformer Lepeletier de Saint-Fargeau) and applying it rigorously.8 Thereby, and from the viewpoint of the organization and legitimacy of political powers, the constitutive function of justice moved from magistracy to the legislative power. The Napoleonic Penal Code of 1810 introduced a derogation vis-à-vis this legal rigidity, in certain cases allowing the consideration of so-called ‘attenuating circumstances’. The logic of aggravating and attenuating circumstances accounted for the contexts in which crimes were committed, and casual factors such as recidivism, alcoholism and motivations. As the analyses of Michel Foucault have shown, these factors introduced the interest in the personal characteristics of the criminal, alongside his act, as being at the core of the penal system, thus creating a tension that eventually crossed the penal practices throughout the nineteenth century.9 However, this logic could be mobilized only insofar as the accused person was considered a capable subject of the political contract and, thus, criminally accountable. This takes us to yet another important feature of the Napoleonic Penal Code: in this point breaching with the abstract notion of citizenship implied by the penal code of 1791, Book 2 of the former defined the basic conditions of responsibility, albeit only to re-enact the old maxim that ‘alienation’ was incompatible with penal sanctions (an observation absent from the penal code of 1791).10 Indeed, the penal legislators of the Napoleonic period regulated these conditions by establishing a zone of exclusion: added to the criterion of age, which the penal code of 1791 already embraced, its article 64 excluded alienation (démence) and actions carried out under effect of ‘irresistible forces’ from the domain of punishable crimes.11 The Enlightenment and classical penal law relied on the fundamental presupposition of a shared rationality – functioning as an abstract identity – between the supposed signatories of the social contract. Indeed, punishment was justified with the argument that offenders, having surrendered part of their freedom through the social contract in order to exit the chaos of nature and obtain the advantages of social life, had consented to their punishments. Thereby a result of a rational choice, in the eyes of some penologists of the period, punishment was an actual right inherent to citizenry. This left, of course, the ‘irrational’ persons outside the reach of punishments juridically codified according to the contractual ratio.12 Thus, in the classical era of codification, at the specific level

18

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of lawmaking, the gaze upon the criminal took the basic binary form of ‘mentally sane’ (responsible) versus ‘alienated’ (irresponsible). Alienation constituted an exclusionary category with regard to the world of the penal law, excluding certain types of individuals from its devices and machinery, and constituting the universe of mental pathologies as one separated – in its concepts, institutions, procedures and actors – from the juridical universe proper. In reality, the alienated individual was not only outside the penal jurisdiction, but was furthermore excluded from the range of the legality principle itself. This constituted a steady feature at the centre of the civilian legal traditions and of the school of penal thought which later became known as ‘classical’. In the early 1900s, referring to this tradition, the Italian penologist Ugo Conti offered an adroit summary of its spirit and effects: ‘So Man is normal or abnormal for the effects of the penalty. Normal when the social character of Man prevails; abnormal instead when the opposite characters prevail’.13 This kind of pre-qualification imposed on individuals entering the judicial domain was thus based on a binary judgment leading to the exclusion of those deemed to be ‘alienated’ (and later in the nineteenth century identified with the ‘abnormals’). Two important tendencies derived from this structuring aspect of the criminal field. On the one hand, it was implied that all subjects of a criminal procedure, and of penal sanctions, be viewed as having the same anthropological background as any honest citizen (a shared nature captured through concepts of ‘free will’ and ‘moral sense’). On the other, there also emerged scientific discourses on the nature of the criminal to be developed outside the juridical field and often in competition with jurists. Indeed, criminological discourses continued to evolve over the nineteenth century and, as historian Peter Becker has sustained, the process of naturalization of the criminal’s moral stigmata, departing from the figure of the ‘professional criminal’ – a sort of negative mirror reflection of the respectable, bourgeois, citizen – preceded, and even prepared, their juridification, which occurred only late in the nineteenth century.14 Instead, the identification of the ‘social goods’ to protect and the circumstances of criminal acts belonging in the universe of the free will subject was left to legislators and jurists as a matter requiring proper juridical competence. Like the discourses on criminals, this task of legislators and jurists was generally conceived of as a ‘science’.15 To employ the words of a magistrate in the Napoleonic period, the makers of the penal code were called to derive their legislative activity from the knowledge of the ‘uncountable multiplicity of actions’ that countered the ‘general interest’. Perceived indeed as scientists of the public order, legislators charged with the penal codification were enjoined to approach their object – i.e. all the acts against the public order – as an eighteenth-century naturalist might proceed on his own terrain, that is to say, by naming and classifying objects. Likewise,

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‘general interest’ was also invested with something close to an objective nature. The task of defining its content did not belong to penal lawgivers, who were, instead, to proceed as if ‘general interest’ was a reality exterior to the working of codification. Through prohibition and repression, the lawgiver gave the latter some shape, through a negative mirror reflection. Thus, his role was not so much that of founding, or re-founding, an order, but again, that of cataloguing acts that threatened that pre-given order. His function was to square certain types of sanctions within a system of procedural forms, and relate them, as organically as possible, with other substantive norms, so that the judicial decision would rigorously reflect the fundamental principles of the juridical order, as well as the penal logic underlying the particular incrimination in cause.16 Although this centring of the juridical system on codes is a distinctive feature of the tradition initiated with the codification processes in a few enlightened monarchies and during the French Revolutionary period, this political rationale cannot be understood without taking into account its developments in the common-law world. In England, for example, the penal question had been approached, since the eighteenth century, by way of several initiatives aimed at the consolidation of law. Some of these measures sought to obtain a full codification of criminal law, a movement that can be traced back to the beginning of the 1830s and, due to its lack of success, remains recurrent up to the present. In a study on an English attempt to codify the criminal law between 1833 and 1845, Lindsay Farmer formulated some important remarks on the meaning of penal codification in the context of state modernization in England. Viewed as a juridico-institutional domain in need of a profound and urgent reform, criminal law has stood at the frontline of the political debate since the 1760s. Because it involved the application of force by the state, some jurists considered that it was to be consolidated through codification, a process that, just as in the French case, implied the identification of the general principles of the politico-juridical order and the articulation of law according to these principles.17 Farmer’s main point is that, independent of its actual enforcement and besides its breaking with the common-law tradition, the project of a penal code in the 1830s and the 1840s testifies to a change in the concepts of sovereignty, law and government in England. Such a change had its clearest expression in Jeremy Bentham’s theorization of a ‘legislative science’ being connected to the political idea of the legislator’s sovereignty. Constituted by the courts from particular juridical situations, the norms that formed the web of the common law were, in Bentham’s eyes, irretrievably linked to particularisms. They therefore appeared unsystematic and of no utility for the ‘good government’ of the country. Countering this, ‘legislative science’ aimed at turning legislation into the voice and the instrument of a sovereign power that rationalized, in a scientific way, its governing action, and thereby became a ‘detailed and continuous regula-

20

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tion of human condition’.18 In sharp contrast to the organic, institutionally based nature of legislative creation in the common-law tradition, legal norms, obtained through ‘scientific work’, were to be imposed by an instance exterior to institutions. Instead of constituting their mould, institutions themselves were to be formed by the law. Neither Bentham nor the commissaries wanted to modify the substance of common law, but instead to construct an internally coherent penal system, endowed with an organic character reflecting the coherence of the principles of which the code was a logical development. This implied that the principles at the basis of the penal order were to be formulated in advance. Theoretically, the code thus guaranteed all individuals the possibility of verifying the logical correspondence of norms with the ‘universal’ principles from which they derived. In this line of thought, politically speaking, the most important part of the code was the preliminary, where the norms of general application – regarding the types of punishment, capacity, intention, agency and participation – were enunciated. Yet, criminal law was to have an important normative role in the guidance of individual behaviour, hence the concern for transparency.19 Therefore, just as it allows us to understand the nature and meaning of the English codification project, the Benthamian rationalization sheds light onto the Revolutionary and Napoleonic criminal codification. In matter of fact, in the latter case, the desired accordance of the penal code with the Declaration of Human Rights, and with the police and administrative laws, shows us precisely the image of a legislator who, more than giving the nation a code of crimes and punishments, aimed at the scientific formulation of a normative image of society and, through the language of law, sought to construct a complex policy regarding the use of force by the state. As Paoli Prodi suggestively remarked, the state ratio gave place to a sort of ‘State wisdom’ and the Napoleonic codes, concretely, emerged as new ‘abridgements of human wisdom’.20 This combination of politics and science can also be analysed in terms of a secularization process. In reality, while the logic of political centralization implied the denial of all penal capacity to the Catholic Church, and the logic of science, constructed on a utility principle, recommended the criminalization of a minimum possible of wrongs, the intersection of these two strands enhanced the definition of an ensemble of acts that, although reproachable, were not considered as crimes. This process brought about a better distinction between the terrain of sin and immorality, mostly linked to private life – the control of which was to pertain more to the Church than to the State – and that of delinquency. Generically speaking, this was signalled mainly by the decriminalization of religious offenses, which the authors of Au nom de l’ordre viewed as one of the starkest discontinuities between the penal code of 1791 and the penal order of the Old Regime, and also by the decriminalization of acts between consenting adults that, albeit held

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as immoral and even despicable, were considered not to affect the social body in a way to justify a penal sanction as long as they were kept private.21 However, this secularizing tendency did not necessarily imply a more secularized society. On the contrary, the fact that, in the countries following the civilian model, the state could count with such an important agency of control as the Catholic Church, constituted the actual factor allowing the decriminalizing of some of the ‘immoral’ acts of this kind. A significant example of this is the case of homosexuality, decriminalized in the Napoleonic Penal Code and in those codes that followed it as a model, in contrast with the common law and the Germanic traditions, where homosexuality remained a crime until the twentieth century.22 Even within the field of the penal law, and alongside this relative secularization of incriminations, divergent tendencies were observed in this respect: as some historians have observed, throughout the nineteenth century, a process of transfusion of moral values and concepts into the penal domain took place. This can be easily observed in the juridical construction of the penal subjects along a unitary concept of ‘guilt’, which had an obvious religious matrix. Furthermore, starting in the early nineteenth century, the concepts of ‘public morality’ and ‘public scandal’ were well articulated within the penal and police jurisdictions, allowing the state to exercise some control in the domain of morality.23 Yet another tendency along these lines must be briefly discussed, namely the overall conceptualization of the fundaments and legitimacy of the penal law. Indeed, in reaction to the late eighteenth century move towards an identification of the substance of the penal law with the political will of the lawgiver, by the mid-nineteenth century, scholars in the field sought to dispel the implications of a historical rooting of the penal law, with all the relativization and the possibility of arbitrariness it carried. Italy constitutes, in this respect, a paradigmatic case, by virtue of the authority that the theoretical work of Francesco Carrara had on the penal doctrine of the post-Risorgimento period.24 In his juridical masterwork – the much-quoted Programma del corso di diritto criminale, which served as a manual for several generations of jurists in the second half of the nineteenth century – Carrara sustained that, while in its fundaments, the penal law had an ‘absolute nature’, the function of legislators was merely to interpret it, and that of jurists was to develop it technically. The ‘right to punish’, Carrara argued, descends from ‘order’s eternal law’. Were the law derived from the state or from the lawgiver’s will, it would be no more than a product of ‘human caprice’.25 However, not all the normative parts forming the penal codes had an absolute character. This was, in reality, limited to the so-called general part of codes. In the course of the nineteenth century, a metaphysical concept of truth, juridical technique and force was to constitute the three new pillars of the penal jurisdiction, as opposed to the combination of politics, science and force that had emerged with the Enlightenment to redefine punishment. From a sociologi-

22

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cal point of view, this doctrinal development was a reflex of the autonomization of the juridical professions, mainly those linked to the academia, vis-à-vis the political institutions.26 This secular movement of de-politicization of the law and its gradual monopolization by experts constituted a general trend in the European juridical culture of the nineteenth century.27

Recidivism and National Solutions In the nineteenth century, most Western countries sought to implement the Enlightenment premises of punishment. These built on the principles of legality (nulla poena sine lege), of a fair retribution with regard to the gravity of the committed crime and of rehabilitation of criminals. Additionally, these principles related, explicitly, to the notion of individual free will, a foundational concept of the new political and socio-economic order of liberalism. However, from the onset of the liberal juridical–penal order, reformers and politicians portrayed, recurrently, these metaphysical tenets as inadequate in the face of social realities. They attributed such limitations primarily to changes in crime patterns, with chronic recidivism featuring as a serious and increasing threat to social order. France was one of the first countries to adjust its penal legislation to the penitentiary regime, with a bill dated 28 April 1832 establishing recidivism as an aggravating circumstance. Half a century later, the problem, still unsolved, justified a hardening of the measures against recidivists. Indeed, the result of a bill dated 27 May 1885 was that recidivists, including those convicted for petty crimes, offenses against the moral and vagrancy, were deported to penal colonies.28 In this system, recidivism was an aggravating circumstance: dependent solely on a formal statement by a judge, it was regardless of the personality of the delinquent and, to a great extent, of the nature of the crime. While jurists considered these laws peripheral to the penal code, in the international debates, France remained as the example of a strictly juridical, and thus formal, response to the problem of recidivism.29 Italy took a different approach to the problem. Inspired by pre-unification experiments, from the 1860s the Italian penal system incorporated sanctioning procedures formally attributed to the police and prison administration. The Public Security Bill of 1865 shaped so-called ‘police law’ (diritto di polizia), remaining at the margin of penal legislation, but from it emerged a newly codified sub-system of coercive measures with an afflictive character. Juridically non-penal, they had an eminently preventive function, implying in concrete their possibility to be used independently of the perpetration of a crime.30 Police law thus preceded the so-called positivist school in the recommendation of ‘dangerousness’ and ‘suspicion’ as the determining criteria for the employment of force in the name of the state. Establishing its own procedural forms, with a funda-

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mentally administrative nature, and directly dependent on the executive power, this parallel track of state force emerged as an autonomous system of sanctions.31 The codification of the first penal code of post-unification Italy (1889) was also the first serious attempt to coordinate the penal system with that of police. By the new Bill of Public Security (1889), the two main sanctions of police were the ‘warning’ (ammonizione) and the ‘internal exile’ (domicilio coatto). Article 96 submitted both those ‘habitual idle and vagabonds’ (gli oziosi ed i vagabondi abituali) capable of working and without means of subsistence and the so-called ‘defamed’ (diffamati), to the ‘warning’. The latter included all persons absolved for lack of proofs but designated through ‘public voice’ (voce pubblica) as ‘habitually guilty’ of certain crimes. However, the notion of ‘habit’, incorporated into police law, encountered much resistance among jurists: before the penal code of 1930, no less than five projects consecrating the category of ‘habitual delinquent’ by law were attempted, yet none successfully enforced.32 Only in 1930 did the ‘habitual delinquent’, together with the ‘delinquent by tendency’, enter the penal code. Besides political and ideological reasons, a possible factor for the late codification of these categories may be found in the economically convenient mass employment of detainees, in both prisons and police detention camps, in public works.33 Indeed, a clear juridical codification along the lines of ‘dangerousness’ would call for a more resolute correctional or eliminatory approach. Western European countries adopting penal codes in the nineteenth century were closer to the French than to the Italian solution, as they opted for a juridical sanctioning of recidivism, through laws peripheral to the code. The Portuguese and Spanish cases – to which I will return in chapter 5 – are good examples of this. Both countries implemented their respective penitentiary systems in the 1880s, which, similarly to France, included a system of penal work in overseas colonies. In 1881, the Portuguese government abolished deportation and public works for life and regulated penal colonies, a sign that such penalties were to be subordinated to the penitentiary system, established by law in 1867. After the opening of Lisbon Central Penitentiary, in 1885, recidivists and ‘incorrigible’ criminals were indeed subject to a period of penitentiary discipline before being sent to penal colonies in Angola, where they were used as workers and settlers in inhospitable places. The penal code of 1886 re-established transportation as a penalty alternative to penitentiary detention in the cases of serious offenses, and several laws in the 1890s extended deportation to ‘incorrigibles’, ‘recidivists’ and ‘vagrants’.34 A fully rehabilitative system was conceived solely for child and juvenile delinquents, with an emphasis on agricultural penal colonies (Vila Fernando in 1895; and António Macieira in 1913), even while the practice may have fallen short of intentions. In sum, a politico-economic, pragmatic rationale – the use of criminals as settlers and workers – eventually prevailed over the correctional ideals of the penitentiary.35

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The Spanish case presents similar practical features, despite having a different juridical setting. Countering a well-rooted practice, the penal code of 1870 abolished penal work as a sanction and paved the way for the implementation of a penitentiary system.36 Between 1884, when Madrid’s Model Penitentiary was inaugurated, and the early 1890s, prisons following the panoptical scheme multiplied over the Spanish territory.37 Nonetheless, penal work in overseas colonies such as Mindoro (in the Philippines) and Ceuta and Melilla (in North Africa), were integrated into the penitentiary system by means of the adoption of the so-called Walter–Crofton regime.38 Also known as the ‘gradual system’, this penitentiary regime established that prisoners passed through various stages, from isolation to gradually more lenient penal sanctions, which, in their later phase, amounted to a regime of penal work in the colony.39 At this stage, the convicted enjoyed a status close to that of a free settler. In this instance, recidivism was approached with a pragmatic eye, namely as a means of improving the Spanish presence and its workforce in colonized territories. As some historians observed, for all its modernizing presentation, this pragmatic approach to punishment, in Spain as much as in Portugal, reveals a striking continuity with the Old Regime.40 It is worthwhile noting, however, that in both Portugal and Spain, from the 1880s, criminal anthropology with a strong reference to the Italian masters became popular among model prison directors and, in some cases, politicians and lawmakers.41 By installing criminological laboratories in model penitentiaries, Portuguese and Spanish prison directors made a significant contribution to the development of a scientifically constructed notion of ‘dangerousness’. In Portugal, for example, criminal anthropology inspired a number of observation practices, such as skull measurements, criminological photography and systematic clinical observation, regularly performed in the anthropometric offices of its two penitentiaries (Lisbon and Oporto). The First Portuguese Republic, started in October 1910, encouraged the development of criminal anthropology in prisons and expanded it to correction houses for child and juvenile offenders. In the 1910s, being a penitentiary director was a highly regarded position, as suggested by the fact that the two directors of the Lisbon penitentiary, Rodolfo Xavier da Silva and João Gonçalves, both doctors, at various times also had ministerial functions. Other notorious Republican politicians, such as the psychiatrists Júlio de Matos and Miguel Bombarda, also articulated the concept of ‘dangerousness’ in their political views and proposals. Although not specifically attached to Italian criminal anthropology, their views on mental illness and its relation to criminality were strongly influenced by hereditary and degeneration theories. Placing a strong emphasis on the ‘dangerousness’ of the mentally ill, they pledged to build highly secured psychiatric hospitals and to maintain close communication channels between the asylum and the penitentiary.42

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English and Scottish criminal law punished recidivism severely, establishing penal aggravations as serious as imprisonment for life or an indeterminate term for certain types of crimes (e.g. larceny and counterfeiting money). In certain cases, the first offense was tried as a misdemeanour and a relapse as felony, which implied an aggravation. Again, the Prison Act of 1898 established that certain prisons were to have a section for ‘habitual offenders’ with exceptional penitentiary rules, where convicts sentenced to more than seven years in prison were to serve part of their sentences. A few years later, the Penal Servitude Bill of 9 June 1904 took this penitentiary practice into the legal domain proper by regulating the treatment of ‘habitual delinquents’. Under this law, a third conviction in certain offenses took the criminal to a regime of ‘penal servitude’ for a certain number of years. However, in case a judge considered that the ‘habitual offender’ led a criminal or dishonest life, this period of detention was indeterminate in duration. Likewise, in the United States, recidivists were subject to harsh measures. In the penal codes of the states of Dakota, California and New York, for example, a second conviction for any offense, even in the case of ordinary larceny, was aggravated on account of recidivism. Additionally, in the state of New York a judge could formally declare certain criminals as ‘professional’ or ‘habitual offenders’.43 To summarize, recidivism and the corresponding ‘incorrigible criminals’ were century-old problems, born with the penitentiary system itself. Raising doubts about the capacity of criminal law and the penal institutions to deal with growing criminality, recidivism emphasized the impotence of politicians and institutions to solve the problem.44 As a result, statesmen, lawmakers and penal reformers invested in the creation of new settings in which to develop and legitimize responses to recidivism. We must consider two different types of responses: on the one hand, schools of penal thought, often linked to a national group, but always proselytizing at an international level; and, on the other, formal networks linking experts from different countries. Let us look at these interlinked devices.

A Transnational Penal Arena Throughout the nineteenth century, the objectives and forms of punishment were the object of unending debates, which, in turn, affected great juridical and institutional reforms in most of Europe and America. From the 1820s on, these debates and reforms evolved around the central theme of the ‘penitentiary’, generically understood as the most civilized, scientific and useful site of punishment. And here, international congresses had a crucial, though often neglected, role. In the suggestively titled International Penitentiary Congresses and the Advances Linked to them (Les congrès pénitentiaires internationaux et les progrès qui s’y rattachent), published in the early 1900s, William Tallack, a leading English penologist of his time and secretary of the prestigious Howard

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Association for more than thirty years, established a direct causal link between the proposals of the congresses and the ‘progresses’ of the various national penitentiary systems. ‘Progress’ was to be understood as a greater humanity in punishment, less frequent resort to corporal penalties and the improvement of prison conditions, alongside the active encouragement of work and good behaviour in prison. Above all, it implied the rejection of all penitentiary regimes prior to the period of the congresses: neither the ‘promiscuity’ typical of Old Regime prisons, nor the classical and religiously motivated solitary confinement of American coinage. Against the former, the prison reform movement had opposed the ‘advantages of isolation’ and the classification of prisoners; against the latter, it opposed a more balanced system, where isolation was complemented with ‘edifying influences’ such as work, exercise and instruction.45 Larger scale tendencies – such as the gradual abolition of the death penalty and deportation, the substitution of imprisonment by other kinds of punishment (fines, probation, etc.), an increased attention to prevention in the form of both the treatment of juvenile delinquents and the social rehabilitation of liberated prisoners – all these ‘advances’ were attributed to the influence of congresses. Further, many other more localized changes were estimated to be linked to the congresses in sub-areas of the penal field: the organization of work in such a way as to preclude competition with work carried out in freedom, the instruction of prison wardens and employees, the architecture of prisons and the identification of criminals. For each one of these manifestations of ‘progresses’, one or several model countries or systems were presented: Switzerland and Great Britain for the protection of liberated prisoners; France, Italy, Sweden and Holland for penitentiary work; Italy, Belgium and Germany for the instruction of prison employees; and Sweden, Denmark and France for prison architecture.46 This description of the international movement contained an implicit view on the process of change of the penal system, its goals and the role of the international congresses. In reality, it implied, as both a process of change and as a goal, the idea of a progressive normalization of penal systems in the various countries, operated by the transfer of the best of each country to all the others, a transfer with regard to which the congresses were to function as a mediator. Other penologists of the time, however, construed a slightly different picture. According to them, criminal phenomena were increasingly viewed as complex and varied in their causes, equally demanding increasingly complex penal solutions. The transfer of models no longer sufficed, if it had ever done, and new forms of tackling the penal question were required. For some observers in the 1880s and the 1890s, the International Congress on the Prevention and Repression of Crime including Penal and Reformatory Treatment held in London, in 1872, and the series of congresses that followed were a clear response to that necessity, revealing a new logic of international cooperation regarding

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criminal issues. Speaking of that inaugural London congress, the Portuguese penologist João da Silva Matos, for instance, viewed in the issues to be addressed in the following congresses – divided into the three sections of Legislation, Penitentiary Administration and Prevention – a certain consciousness of the increase in complexity attributed to the penal question.47 In his opinion, after 1872, the International Penitentiary Congresses responded chiefly to a growing disbelief in the efficacy of applying the same models to different situations (later called International Penal and Penitentiary Congresses or IPPC). These congresses were based on a more scientific understanding of the phenomenon of criminality and, being ‘official’ – as Silva Matos labelled them in contrast to the preceding congresses – that is, including official representatives, they were part of a new form of cooperation between public authorities and private persons. However, despite pointing out these discontinuities, Silva Matos placed this enterprise within the series of international congresses which had begun with the Frankfurt Congress of 1846, the first true international penal congress to have been organized. Before 1872, two other congresses of the kind followed that of 1846, one in Brussels (1847), the other in Frankfurt (1857). Initially promoted by an English philanthropist, Whitworth Russel, and by the influential prison reformer and Belgium Prisons General Inspector, Éduard Ducpétiaux, the congresses aimed, from their very outset, to establish collaboration between private actors and state authorities. Regardless of this, however, they were of a completely private character and, instead of pursuing a direct influence over state authorities, they placed the emphasis on the conquest of public opinion, as was clearly indicated in the opening discourses of the international penitentiary congresses of 1846 and 1847.48 In the preliminary observations to the procedures of the Frankfurt Congress (1846), after indicating the conquest of the public opinion as the main strategy to be followed, Carl J. A. Mittermaier stated that the aim of the congress was that of ‘establishing the necessary consensus to ensure the adoption of the best form of imprisonment’.49 Thus, many of the penal reformers of the time attempted to find and promote the diffusion of the best models. The ‘model’ was virtually found in the English penitentiary of Pentonville, inaugurated in 1842, which, according to a historian of prison architecture, became the ‘most copied prison in the world’. Countries like Prussia, Saxony, Russia, Holland, France, Austria, Denmark, Sweden and Portugal built penitentiaries following the Pentonville model.50 Indeed, during a large part of the nineteenth century, the prevailing concept in penal reform was that of the ‘model’ – a given way of administering punishment, which was often linked to a certain architectural figure of prison considered to encapsulate the most scientific form of punishment. An analysis of the penal discourses in the bracket 1820–70 shows that these trends were often part of what we can call utopias of order and civilization,

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which were pursued via the regeneration of the popular strata and the setting-up of a new symbolic order. The latter was to be achieved mostly through a certain representation of the state and a certain self-representation of the political elites. A good example of this is the emphasis placed on the topic of ‘civilization’ and on the implied necessity of a demarcation of punishment vis-à-vis the ‘barbarous’ style of the Old Regime.51 Another example is certainly that of the self-representation of bureaucrats as characterized by a personality where moral reliability and the capacity for scientific objectivity went hand in hand. This quest for a scientific way of sanctioning fostered, undoubtedly, a scientifically oriented approach to criminal law in general. A sign of this lies in the much-vaunted idea that criminal law was to be pursued in a comparative and cosmopolitan way. Significant of this, for example, was the foundation in France, in 1869, of the Société de Législation Comparée. Yet, though progress was ensured, it was not always linear. After the pristine days of the Roman and canonical law, cosmopolitanism had vanished from the realm of law, and science was thereby seriously compromised. However, new conditions began to favour a new move and here the French played a crucial role: the codification movement, its spread through the Napoleonic invasions and the primacy of French as diplomatic language were depicted as the main agents of this process. It was, then, the task of ‘science’, ‘propaganda’ and ‘similitude’ to restore the universalistic/cosmopolitan character essential to law.52 The intended proximity between the internationally articulated penal policies and the generic concept of ‘science’ manifested in various ways. Most importantly, it underlay the constitution of a ‘penitentiary science’, a new field of knowledge linked to the movements of codification of penal law, to the consolidation of criminal law as an autonomous discipline within law courses, and to the centrality of the penitentiary as a means of both punishing and disciplining the ‘dangerous classes’, to which certain characteristics of ‘science’ were attributed. Again, the scientific approach to the policies of punishment revealed itself in the importance accorded to prison and criminal statistics, considered to provide the knowledge necessary to the control of the ‘dangerous classes’. Lastly, the connection between punishment and science implied that the condition for the efficacy of the penal institutions relied on knowledge of the ‘nature’ of the criminal. In consequence, the whole discourse on punishment was intertwined with those discourses that, one way or another, transported the figure of the criminal as their object of knowledge. To varying degrees, according to different contexts and individuals, these discourses included phrenology, physiognomy, hygiene, forensic medicine, statistics, philosophy and political economy. From the 1870s, ‘penitentiary science’ acquired a certain autonomy from these disciplines, a factor that must be considered in light of the changing nature of the international congresses. Referring to the London IPPC of 1872, Edwin Pears, its official speaker, observed that, in contrast with the preceding meet-

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ings, this had been essentially ‘a gathering of experts from nearly every civilized nation on one special set of questions’. Additionally, ‘the official delegates were in almost every case prison officials usually of the highest standing, and of the greatest authority on criminal questions in their respective countries’.53 By allowing a close collaboration between recognized experts and official authorities, the congress, instead of being composed of philanthropists, now principally included prison directors, high court judges, professors of criminal law and deputies from countries who were devoting attention to the penal issues. Brought into being by the initiative of the government of the United States, the officially declared objective of the congress was to collect reliable prison statistics, to gather information, and to compare experience as to the working of different prison systems, and the effect of various systems of penal legislation; to compare the deterrent effects of various forms of punishment and treatment, and the methods adopted both for the repression and prevention of crime.54

In order to meet these objectives, the organizing committee addressed a very comprehensive questionnaire to the governments represented in the congress. The questions ranged from detailed issues regarding the administration of prisons, their infra-structural conditions and regime – including labour, schooling, edifying readings, religious and medical care – to the social characteristics of prisoners and the existence and functioning of aid societies for liberated prisoners. Attention to detail, ‘rather than mere generalities of prison and reformatory management’, was, indeed, yet another intended characteristic of this Congress.55 The logic of cooperation between public and private entities was fully developed with the creation of a permanent commission – the International Penitentiary Commission. In 1874, a body consisting of ten non-official representatives of a few countries, who were acting by virtue of a mandate from the London Congress, opted to take an ‘official character’. Its president invited the governments to appoint delegates to attend the next session of the commission and, in 1875, twelve states were officially represented, a number which grew steadily – fifteen in 1900, twenty-two in 1914 and thirty in 1939.56 Exclusively composed of official delegates of the adhering governments, and meeting once a year, the commission was charged with the publication of a bulletin, in French, containing the legislation, law projects and reports regarding prison administration, reports concerning the questions admitted into the agendas of the international congresses, and the articles produced by the commission and considered to have a general interest. In addition, the commission was to organize an international penitentiary statistic, and set the date, the locale, the programme and the regulation of the international congresses to be held at five-yearly intervals. The financing of its activities was to be provided by the adhering states, the contributions of each one of these being calculated proportionally to the respective number of inhabitants.57 In sum, the

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science of penal sanctions could no longer be identified with a few institutional models, and little emphasis was placed on the conquest of public opinion. Punishment had become an issue for governments and experts. During the 1880s, characteristically the decade during which the so-called ‘social question’ acquired its full political significance within the second phase of European industrialization, two other international organizations with similar objectives were created. One of these was closely linked to the Italian positivist school and its activity was particularly evident in the International Congress of Criminal Anthropology (hereafter, designated ICCA), held every five years from 1885 onwards. The other was the International Union of Penal Law (International Kriminalistische Vereinigung, hereafter designated as IKV), officially founded in 1889, also focusing its activity on the organization of international congresses, and held every three or four years starting in 1890. These two organizations differed sharply in many aspects. While the ICCA was largely the terrain of doctors, and only secondarily of jurists, those organized by the IKV were strictly the domain of jurists.58 The ICCA was mainly interested in the questions regarding the aetiology of the criminal persona and in the institutionalization of positivist criminological theories, thereby focusing on both criminological theories and prison management and reform. It excluded, however, the strict juridico-penal issues.59 In turn, the IKV did not show a particular interest in discussing purely criminological issues, its field of intervention amounting instead to the great orientations of penal law. Closely linked to the figures of its eminent three founders – the prestigious penologists Franz Von Liszt (German), Adolphe Prins (Belgian) and Gerard Anton Van Hamel (Dutch) – the IKV sought to demarcate itself from the ICCA, even if it embraced criminal anthropological topics and concepts. And within the ICCA – the organizing committee of which included Lombroso, Ferri, Garofalo, Sergi, Tarde, Lacassagne and Kraepelin – the fundamental criminological assumptions of the Scuola positiva could not really be thrown open to question, as Lombroso and disciples made clear.60 Although of a constitutive international vocation, the IKV was fundamentally a product of a German-speaking/Northern European axis, while the ICCA was arguably more closely linked to the struggles between the Italians and French for leadership in the criminological movement. However, both organizations shared some important characteristics. Both were dependent on a few leading figures, and they were, to a great extent, marked by an elitist spirit.61 In a like manner, their way of operating, when compared to that of the IPPC, seems much less rigorous. Historian Leon Radzinowicz described the latter’s procedures with great concision:

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The preparation and deliberations of the Congresses followed a carefully thoughtout pattern which helped enormously to avoid overlapping and to sharpen the focus on the basic issues involved. To be more precise, the agenda was made up usually of four sections: penal legislation; penal administration; preventive means; children and minors. A section would, on the average, contain between four and seven questions. A question would usually be covered by between seven and ten reports, thus leading to about two hundred reports. Each section had a chairman and every question had one or two rapporteurs. All questions of every section would ultimately find their way to the meeting of the general assembly, be reviewed afresh and concluded by carefully worded recommendations.62

In the light of this example, the ICCA appears nothing short of chaotic, while the IKV stayed, in terms of organizing capacity, somewhere in between these two organizations. Yet another feature linked the ICCA and the IKV: the First World War precipitated them into collapse, to a large extent confirming the fragility of their structure and forms of operating. No wonder, then, that, generally speaking, the international penal movements of the interwar period stood, in their structure and functioning, closer to the model of the IPPC than those of other organizations. At any rate, this configuration, overtly developed to pursue a scientific form of sanction, provided privileged grounds for the search of a new type of solution for the problem of recidivism.

Imagining Repression Anew The debate on sentences with no pre-fixed duration was just as critical for the international penal organizations as the debate on recidivism. Both topics were commonly connected in terms of disease and its remedy. Until the mid-1890s, penologists discussed them separately. After this period, they became increasingly connected, until finally forming one and the same problem of how to punish ‘habitual criminals’. As we will see below, the IKV played a leading role in this process. The idea of indeterminate sentences first emerged, in the modern period, with the correctional doctrines of punishment developed in the mid-nineteenth century. In its modern form, it is attributed to the German reformer August Roeder. Yet, a few penologists from the realm of common law were also distinguished promoters of this penal concept: it was in the IPPC held in the United States that the concept was most prevalent.63 Again, the first few countries to include variants of this punitive form were, significantly, countries belonging to the common-law tradition: the United States, Australia, New Zealand and Transvaal. Adding to the Penal Servitude Bill (1904),64 England gave a decisive step in this way with the Prevention of Crime Act (1908), establishing indeterminate penal sentences for juvenile delinquents as a corrective method and a defensive method for ‘dangerous criminals’.65

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By the time these laws were passed in England, the countries belonging to the civilian tradition addressed recidivism as a juridical aggravation responding to an increased culpability (the above example of France) or, for certain types of crimes or contraventions, as a police and administrative problem (the Italian model). In a few countries with penal codes, a new type of sanction began to take shape: named ‘security measures’, it can first be found in the project of the Swiss Federal Penal Code, elaborated by Charles Stoos and published in 1893. In 1905, the new Norwegian Penal Code ascribed this type of coercive measure for the mentally disabled. This designation could then be found in the writings of self-proclaimed positivist reformers. In these cases, reformers conceived them as strictly technical solutions, to be applied on ‘dangerous criminals’ by doctors in the name of social defence.66 In contrast, when integrated into penal codes, ‘security measures’ were to be pronounced in court by a judge who would take into account expert advice. For most penologists belonging to the civilian tradition, coercive measures indeterminate in their duration constituted a serious contradiction with the core principles of the system. However, the problem of recidivism rendered these penologists increasingly inclined to view them as a possible solution. The debate on the interlinked topics of recidivism, habit in crime and institutional responses carried out in the IKV from the late 1880s until the First World War is particularly enlightening of this tendency. In contrast with the topic of indeterminate sentences, recidivism was a key issue right from the start. In the resolutions of the first congress (Brussels, 1889), the IKV addressed the question of the fight against recidivism as follows: The Union considers that the current system for the repression of offenders is defective in principle and totally inadequate to combat recidivism. Among the defects of this system, feature mainly: 1 – the lack of classification, [and] the uniformity of treatment of habitual offenders and occasional offenders; 2 – the abuse of too short sentences, which effects that offenders return to society without the latter being sufficiently protected.67

Van Hamel estimated that another major weakness of most systems of repression consisted in approaching recidivism as an aggravation of culpability. This meant that the system ignored ‘the true character of habitual delinquents’. In his speech on the subject, he advocated the need to distinguish different types of recidivists: corrigible and incorrigible ‘habitual delinquents’, as well as those guilty of vagrancy.68 In the second congress (Bern, 1890), the same organization stated that the ‘hardened recidivists’ (récidivistes endurcis) should be considered either as ‘degenerate’ or ‘professional criminals’.69 Again, in Christiania, in 1891, the

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Union articulating the concept of ‘habitual delinquents’ as an acquired notion encouraged governments to develop statistics on recidivism according to standardized criteria so as to allow comparison. Furthermore, penal reform was to be carried out in such a way that the sentence did not establish the penitentiary treatment applied to ‘incorrigible habitual delinquents’ once and for all. In these cases, penitentiary treatment was to be adapted to the personality of the delinquent, observed during the period immediately after the conviction.70 This argument raised the issue of ‘habit in crime’ within the discussion on recidivism. Indeed the two following congresses formulated questions calling a discussion on the ‘habitual criminal’.71 In Christiania, Van Hamel, always at the frontline of this debate, defended the idea that, among the ‘incorrigible’, there existed anthropologically distinct individuals by cause of degeneration. This topic was now clearly linked with a new sanctioning system. Using statistics on recidivism in France, Italy and Germany, Van Hamel sustained that, more than the number of criminals, it was the number of recidivists that caused the increase of criminality; and, second, that most recidivists engaged in different types of crimes. This suggested that recidivists constituted a type of criminal and that penal systems were to respond accordingly. In line with this, Van Hamel defended a system in which the assignment by a judge of the status of recidivist to a criminal opened up the possibility of applying a sentence indeterminate in duration. However, in view of the strong resistance found on the part of most jurists present at the conference, no minimum agreement was achieved.72 The following conference (Paris, 1893) was a turning point in the approach to the matter. The question now asked by the IKV specifically regarded the admissibility of indeterminate sentences. After recapitulating the evolution of the problem in the three preceding meetings, Van Hamel – again an appointed discussant of the topic – defended that, after a period of experimentation on ‘habitual criminals’, indeterminate sentences could be extended virtually to others. Van Hamel noted the strongly polemical nature of the issue in theoretical debates in Europe. In contrast with the European controversy, he emphasized the penal law in fifteen states of the EUA – ‘laws which have been used to develop the nature of the institution and also to recommend its introduction in other countries’.73 However, he also signalled that, in these cases, indeterminate sentences applied, not to ‘habitual criminals’, but to young delinquents; and not in prisons, but in specific confinement institutions within a correctional frame. In his eyes, these sentences constituted, therefore, a measure in favour of the delinquent, whereas the IKV’s debate regarded the concept of indeterminate sentencing for ‘dangerous’ and ‘incorrigible criminals’ with the aim of protecting the society.74 Instead of simply looking at the American model, it was necessary to turn it into a new type of sanction. The new sanction should be applied after a

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certain number of juridical convictions, the declaration of the status of ‘habitual criminal’, and aimed to contain the criminal’s dangerousness.75 In the IKV as well as in other international meetings, Franz Von Lizst sustained a similar position.76 The other appointed discussant on the question – Adolphe Prins, also a prominent figure of the IKV – considered that indeterminate sentences were, in principle, a historical turning point and a rupture with the juridical tradition. Prins made similar remarks on the correctional ethos of indeterminate sentences in the EUA, illustrating his argument with the example of the Elmira correction house in New York.77 Precisely because of this, he could not agree with Van Hamel: the principle of indeterminate sentencing was totally inappropriate to prisons. It was understandable for young delinquents and irresponsible criminals, but not for convicted adults, irrespectively of their being recidivists and dangerous. For these, he advocated the French system, i.e. an aggravation of sentences by cause of recidivism.78 Most of the participants followed Adolphe Prins. Van Hamel and Garofalo – who was also for the implementation of indeterminate sentences – recognized that the assembly was clearly against their position and the issue remained, once more, unsolved.79 History repeated itself in the following year, in Anvers.80 At the same time, the issue was discussed in the IPPC. In this regard, the International Penitentiary Congress of Paris, in 1895, can also be viewed as a decisive turning point in the debate: it was the moment at which the issue of recidivism shifted from the section devoted to penitentiary administration to that of legislation. This suggests that the issue was no longer considered a problem of penitentiary administration or regime, but a legal issue to be addressed by lawmakers. To the same question regarding the penal treatment of recidivists, the IPPC responded with a statement to the effect that deportation was useful for those convicted to long sentences, to ‘obstinate recidivists’ and ‘habitual delinquents’, a resolution that corresponded to a standardized version of the French criminal policy started in the 1880s (namely through the Bill of 24 May 1885).81 The 1900s and the early 1910s brought a significant change of attitude towards both the notions of ‘habitual criminal’, ‘indeterminate sentences’ and legal responsibility.82 The IKV’s 10th congress, held in Hamburg in 1907, formulated the question from which developed the full consequences of this logic: should the category of ‘dangerous state’ (état dangereux) extend to certain types of recidivists, thus replacing ‘a too exclusive concept based on the pursued act’?83 By then, this tendency to reframe the problem of recidivism through the concept of ‘habit’ was verified also in the IPPC, as in the resolution voted in the Washington Congress of 1910 recommending specific institutions for the prolonged detention of ‘habitual alcoholic criminals’.84 In 1910, the IKV discussed once more the issue of recidivism and corresponding sanctions. Assembled in Brussels, its members agreed on the necessity of creating ‘special measures of social security’ against ‘dangerous habitual delin-

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quents’ in view of one or more of the following elements: legal recidivism, life habits and hereditary and personal antecedents manifested in criminal acts.85 This rephrasing of the problem reinforced the main elements characteristic of the IKV’s debate on recidivism. On the one hand, it tightened the bond between the notions of ‘habit’ and ‘dangerousness’. On the other hand, it fully acknowledged the refusal of jurists to consecrate the principle of indeterminate sentences by inserting some of its content into a new penal sanction – security measures. In the following congress (Copenhagen, 1913), the IKV attempted to stabilize a definition of the individuals on whom to apply the security measures. While different categories of individuals emerged as a potential target for the new sanction – recidivists, alcoholics, beggars and vagrants – the Bureau decided to focus on recidivists, considered the most problematic. After analysing the French penal legislation and that of some American states, all territories with legislation declaring a criminal ‘habitual’ on account solely of former condemnations, the IKV’s assembly opted for a system combining this criterion with the appreciation of the subjective state of the criminal. In the domain of sanctions, the IKV recommended that security measures were to follow the sentence (instead of merely replacing it), were to be qualitatively different from the sentence and were to have a maximum duration.86 In sum, taking bits and pieces from various traditions, prison experiments and theoretical propositions, the IKV eventually created a new form of repression. In turn, the new sanction implied the definition of its target population, in this case to be found in ‘habitual criminals’. However, the IKV was unable to agree on a practical recommendation regarding the precise nature of the new sanction, as well as on the content of the latter category. Commenting on the place of recidivism in nineteenth-century criminological discourse, legal historian Bernard Schnapper remarked that during the nineteenth century ‘this social danger has been the object of such reflection and awareness that, from the First World War, the problem seems posed in immutable terms’.87 While this applies to the perceived issue of recidivism, viewed in the light of the connected debate on indeterminate sentences carried out in the transnational penal arena, Schnapper’s statement demands further qualification. Indeed, initially conceived as an instrument for the correction of criminals – by definition to be applied to corrigible delinquents and children – the concept of the ‘indeterminate sentence’ mutated from a correctional to an eliminatory instrument, particularly fit for the incorrigible recidivists, often mentioned as ‘habitual criminals’. In other terms, the recidivist had gained the consistency of a truly anthropological issue in need of an adequate institutional response. Criminal anthropology, in particular that developed by Lombroso in Italy, and by Lacassagne in France, provided, if not an entirely convincing general theory of criminals, at least the grounds on which the criminal as a deviant anthropological type became thinkable.

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The ‘Anthropological Judgment’ The transactions of the first International Congress of Criminal Anthropology in Rome in 1885 provide an excellent approach to Lombrosianism widely considered. This is a concept that explicitly refers to the doctrine of Cesare Lombroso, but that can also stand for the failed attempt to construct a discipline of knowledge based on the morphological typology of criminals in the 1880s and 1890s. Testifying to criminal anthropology at the peak of its vitality, the congress transactions reflect the various investments in this scientific project and portray it more as a theory in motion, with its diverse competing actors and styles, than as the rigid and uniform theory that follows from the great treatises that are generally presented as their epitome. Responding to a set of questions previously formulated and divided into the two sections of criminal biology and criminal sociology, this congress was indeed characterized by a multiplicity of short interventions that may strike us in its lack of theoretical unity, mainly in the disparity of the themes discussed. On the biological side, these themes ranged from contributions to classificatory systems of delinquents, madness, epilepsy, the utility of criminological museums, to the influence of temperature and nutrition on criminality and the means to fight recidivism. The domain of so-called sociology featured topics such as the introduction of the concepts fashioned by criminal anthropology in the penal codes, their application in courts and prisons, the protocols for the intervention of medical experts in criminal processes and statistical data on crime and its repression by the penal institutions.88 Alongside the debates, the meeting included an exhibition – the so-called First International Exhibition of Criminal Anthropology. From its catalogue, incorporated into the congress transactions, we learn that Lombroso was by no means alone in collecting objects related to the world of crime. As many as forty-three exhibitors contributed, among other criminalia, skulls and wax masks of ‘epileptics, morally mad and alienated criminals’; conceptual grids for the examination of delinquents; the works of the leading criminologists (such as Lombroso, Garofalo, Puglia and Ferri); statistic tables on the movement of crime; drawings made by ‘epileptics’, criminals and ‘madmen’; and portraits of ‘the degenerated’, ‘arsonists’, ‘the morally mad’, ‘parricides’, ‘uxoricides’, ‘thieves’, ‘rapists’, ‘pederasts’ and ‘crooks’. One could also find on display sections of brains conserved in gelatine; fragments of skin covered with tattoos; skeletons of delinquents; the conserved heads of two ‘nihilists’; maps showing the distribution of ‘political crimes in association’ (a concept overtly referred to historical revolutions); instruments for skull measurement; the skulls of suicidal persons and prostitutes; brains; and wax masks of prostitutes. The exhibition included also the brains of human fetuses in different stages of their evolution; the manuscripts of Carlino Grandi (a child murderer condemned in Florence in 1876); the brain and head of criminal Giona

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la Gala conserved in alcohol, as well as his tattoos and the biliar calculus found at the time of his autopsy; the brain of another criminal named Gasparone; the sculptured pieces of a ‘paranoid, mad-pederast’ that were considered to resemble ‘primitive sculptures’; and many other objects, tables and maps.89 This apparently chaotic display of objects fitted well with the structure of the anthropological congresses, which followed a few practical requirements. These can be subsumed into the following principles: to expose or imply an aetiology of the criminal behaviour or of the criminal nature and its different types; to offer or imply a system of classification of criminals in relation to the theory of causes of the diverse criminal personalities; and to display a certain number of objects susceptible to relation with such causes or with a given system of classification. Unifying these three elements, and thus constituting the point of convergence of these interventions, there featured that which Ferri synthesized well as the ‘anthropological judgment’90 – a cognitive operation that departed from the visible signs and objects linked to criminals and allowed the deduction of the type to which each and every one of them belonged. This process of type finding was thought to automatically guarantee access to the factors that had brought about a given kind of criminal nature. Indeed, as we can see in the systems of classification proposed, criminal types were derived from the varieties and the impact of their causal factors, and sometimes even equated with them. Sometimes, types and causes were simply not distinguished, as in the placing of the ‘innate psychosis’ alongside the ‘epileptics’ and the ‘morally mad’, as well as the whole category of ‘criminals by acquired organic defaults’, for which Lombroso did not propose any types whatsoever. While this is evident in the case of Lombroso, whose classification was based precisely on the quality of the causal factors of the criminal types, it is even more salient in that of Antonio Marro, where the gravity of the causes assessed delinquents as distributed according to five ascending categories which altogether dispensed with a label other than the causal factor itself. The same reasoning applies to the classification proposed by Ferri: All criminals, regardless of their anthropological type, present a psychological common trait: they have an abnormal impulsiveness of action by absence or weakness of resistance to criminal impulses, internal or external; abnormal impulsivity which may result from hereditary degeneration (congenita), a subsequent psychopathological condition, or a transient, more or less violent, psychic disturbance. Between the five main types of criminals, there is no absolute separation and, therefore, no intermediate types; and one progresses, through a sort of circular gradation, from the instinctive criminal, to the occasional criminal, to the criminal by passion, and to the insane criminal, finding similarities between these types because of their contiguity in this anthropological scale.91

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Historian Renzo Villa understood that Lombrosianism was, first and above all, a semiotic method intended to aid research on the criminal nature and the criminal world.92 In other words, rather than the criminological theory itself, it was the ‘anthropological judgment’ that occupied the central place of this discursive configuration. Theory was, of course, a key element of such configuration; however, it relied more on a certain number of beliefs and axioms – the existence of a ‘criminal nature’, the concept of degeneration, the idea of an atavistic resemblance of criminals with ‘primitives’, the notion of an internal disorder inherent to the criminal that was manifest in morphological signs – rather than on a shared body of knowledge. Central as it was to criminal anthropology, the incapacity of achieving a consensual system of classification of criminals perhaps best testifies to its theoretical limitations. However, while it never achieved a satisfactory degree of scientific consensus, criminal anthropology was kept as praxis based on the ‘anthropological judgment’, which presupposed the possibility of a theory of ‘criminal nature’, more than it depended on a concrete theoretical model. In this line of thought, while the theory remained an open project, a void to be gradually filled, the universe of morphological signs and objects was brought to the forefront of the criminological praxis. In reality, these provided prototypes of the particular categories proposed by criminal anthropologists, with the double function of attesting their reality and presenting the models for the future recognition of the types to which the real criminals belonged. As an illustration of this, we can say that it was certainly according to this kind of reasoning that Ferri showed up in the Rome ICCA with the skull of a ‘homicidal-suicidal’ accompanying his then recently published book L’omicidio-suicidio (1883), which he also put on display; and in a similar vein, Lombroso presented manuscripts of a category of criminals with ‘innate psychosis’ that he called ‘mattoids’ (mattoïdes).93 With the primary function of justifying the project of criminal anthropology, the gathering of objects related with that world became the warrant of a theoretical debt to be paid in the promising future of this scientific project. So, quite understandably, in its initial stage, the accumulation of this kind of material constituted one of the privileged means of conquering a status in the field. This becomes evident by looking again at the above-mentioned exhibition appended to the First International Exhibition of Criminal Anthropology: instead of being based on samples – e.g. testifying to the various criminal types – the quantity factor in the display of objects, often of the same kind or conceptually undifferentiated, was of crucial importance. For example, rather than presenting a few examples of each of his criminal types, Lombroso showed a scientific treasure constituted of 100 skulls – 70 of delinquents (without any further specification) and 30 of ‘epileptics’ – 300 photographs of ‘epileptics’, 300 photographs of German criminals and 200 manuscripts of ‘mattoids’, among other objects; while Lacassagne put on a display consisting of as many as 2,000

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tattoos copied on cloth. Although many other criminal anthropologists contributed similar objects taken from their private collections, on these grounds no one could really compete with the two leading criminologists. This material constituted an epistemic capital, and the high scientific status of Lombroso and Lacassagne was also based on its relative dimension when compared to that of the other actors in the field. Historian Susan Regener rightly observes that criminological knowledge manifested itself in the objects through the mere gazing at them. These objects had a symbolic value Regener calls ‘trophyzation’, that is, of displaying the victory of science over crime, on the one hand, and, on the other, the victory of Lombroso’s criminal anthropology over his scientific rivals.94 An alternative and also plausible interpretation is that of Giorgio Colombo, who argues that the museum also had a political meaning, that of fostering the hope that the unified Italy would be capable of departing from its past – symbolically expressed by the atavistic criminal forms – and, hand in hand with science, lead in the way of progress.95 At any rate, these factors considered, it becomes easy to understand the primacy of criminological museums within the project of criminal anthropology. But perhaps more importantly, the objects proved the existence of a ‘natural’ criminal world in the society and the reality of a theorizable criminal nature independent of the concrete cognitive conditions of the scientist and previous to the conceptualization of such a nature. This was all the more plausible as Lombroso considered that criminal nature did not always produce visible phenomena. A brief excursion through the central Lombrosian theme of ‘epilepsy’ can be illustrative of these aspects. For the co-founder of criminal anthropology, it was not due to its statistical significance that epilepsy was important: it was considered to represent only 5 per cent of the prison population in Italy. However, it was crucial in that it constituted a sort of quintessence of the criminal nature. After comparing this percentage with that of the epileptics among the ‘normal’ population – 5 epileptics for each 1,000 ‘honest citizens’ – and verifying that the regions that provided the largest contingents of criminals were also those with the greater numbers of epileptics, Lombroso concluded that these were to be understood, together with two other criminal types by ‘innate organic defect’ – the ‘morally-mad’ and the ‘born criminals’ – within the ‘epilepsy family’. The centrality of epilepsy derived also from the fact that it was positioned at the juncture between the two main factors causing the various criminal personalities, namely lesions of the brain and atavistic irruptions in certain individuals.96 Signifying a replacement of all ‘affectivity’ and ‘moral sense’ by mere ‘impulses’, epilepsy was thus the very expression, in civilized societies, of the primitive human past and its disorderly forces. Michel Foucault has shown how the convulsions in the old Christian topic of diabolical possession became, by a mechanism of displacement, the actual

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prototype of madness, bringing hysteria and epilepsy to the centre of nineteenth-century psychiatry.97 This model also found a close translation into the criminological domain: dissociated from convulsions as its ever-present sign, epilepsy and hysteria were turned into the common structure of the various anthropological criminal types, which, rather than representing qualitatively different personae, corresponded to the diverse intensities in the manifestation of the ‘criminal nature’.98 Indeed, in Criminal Woman, Lombroso explicitly compares epilepsy and hysteria to underline their similarities: ‘Readers will have noticed the many analogues between hysteria and epilepsy. The convulsions of hysteria so closely resemble epileptic fits that the only way to distinguish them is by the scarcity of urine in the former’.99 Although only appearing in the 4th edition of Criminal Man (1889), the epileptic eventually became the basic element of precisely that kind of otherness that existed primarily within the boundaries of civilized society rather than in an ancient time or in some exotic part of the world. Criminal stereotypes can thus be viewed as the emanations of that natural world of crime in the society imagined by late nineteenth-century criminal anthropologists. And epilepsy, either manifest in convulsions or other impulsive acts, was the actual primeval manifestation of such a world. The greater part of Lombroso’s article on ‘epilepsy’ and ‘moral madness’ in prisons and asylums was devoted to providing proof of the existence of a link between the two ‘morbid forms’ of the epileptics and the ‘morally mad’, as a way of grounding the reality of an ‘epilepsy family’. These proofs were basically morphological, namely the similarities in the shape of skulls; and physiognomic, with the face constituting a sort of screen on which were revealed the ‘irresistible impulsive tendencies’ of these two ‘morbid’ types. Eventually, the accumulation of proofs in the form of skulls and physiognomic representations gained an additional importance in the light of the belief that, in some cases, epilepsy had no visible manifestations other than the inclination to crime proper or ‘innate immoral tendencies’.100 The notion of ‘epilepsy without convulsions’ – or ‘hidden epilepsy’ (epilessia larvata) – was thus the conceptual alibi that allowed a bridging of the gaps created by the lack of evidence, not only in the relation between epileptic episodes and the perpetration of crimes, but also, due to the nodal place occupied by epilepsy in the Lombrosian model, in the connection between the occurrence of criminal acts and the existence of somatic signs.101 Indeed, by theorizing a signification without a significant, a thing without a corresponding phenomenon, Lombroso affirmed the existence of criminal natures endowed with such a sort of ontology that rendered them independent from their acts.102 This kind of operation anchored criminology in a naturalized social reality.

2 ITALY AND THE UNIVERSALITY OF REPRESSION

Criminal Positivism and Penal Utopia In the last chapter, I argued that the perceived necessity to imagine new forms of repression preceded the science of criminals. I also suggested that, despite their intersection zones, before the First World War the science of sanctions and the science of criminals evolved on somewhat parallel tracks. I would like now to develop this latter point before turning to the ways in which the two ‘sciences’ were made to relate in view of the design of new penal institutions. In Italian historiography, penal positivism and criminal anthropology have long been treated as topics that, because their importance expands well beyond their own specific fields, should be viewed as proper cultural artefacts characteristic of Italy in the last few decades of the nineteenth century. In particular, Lombrosianism has been viewed as one of the main Italian cultural exports of the period, an aspect that has fostered a significant number of studies, by both Italian and non-Italian historians.1 In Italy, Renzo Villa acknowledged this aspect when speaking of the way in which Lombroso, ‘the most translated Italian scientist of his time’, was, at the peak of his international fame, cherished as a ‘glory of Italy’ and how his public extended well beyond the academia.2 And Delia Frigessi, in a fundamental work of science history devoted to the criminology of Cesare Lombroso, introduced her analysis with remarks on his international notoriety.3 Even though Italian criminology has to be understood in the context of post-Risorgimento Italy, and while it was internationally recognized as a disciplinary school proper, the viewpoint privileged by some of these studies should now be reassessed in the light of what has been said on the international networks of penologists. Three basic elements characterize the approaches based on the concept of a ‘school’. The first of these is the assumption that the penal and criminological disciplines were shaped by a conflict of schools of thought: while penology was characterized by the clash between the classical and the positivist schools – the former of liberal, the latter socialist/reformist imprint – a fracture with a properly transnational nature, criminology, in turn, was

– 41 –

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internally differentiated along the opposition between an Italian and a French school. The second of these elements, which is somehow the logical implication of the idea of a clash of schools, is the notion of an irreducible specificity of the Italian criminological school. This assumption has sometimes led historians to take the claims of criminologists as to the originality and singularity of Italian criminal anthropology at face value. And the entire construction of the genius of Lombroso appears to have been functional to such claims – hence the centrality traditionally attributed by historians to the alleged founder of the sciences of crime. This centrality constitutes the third steady element of many studies on the history of criminology. At the same time, some of these studies argue that the competition between schools was, rather than a reflex of substantive differences of discourse on the same object, part of a strategy of distinction.4 To be sure, such a strategy was based on proper disciplinary claims: that the Italian school focused primarily on the delinquent, even when it considered the social causes of crime; that it was developed under the specific historical conditions of post-Risorgimento Italy; and that it stemmed from a deep-rooted tradition that went from Beccaria to Lombroso.5 Thus, while scientifically justified, such distinction was carried out with strong nationalist overtones. It was Ferri, for instance, who never ceased to announce, to the joy of his Italian audiences, the superiority of Italy ‘in the scientific thought charged with the regulation of human justice’.6 That Ferri’s strategy, as well as those of penologists from other countries, in view of the scientific consolidation of criminology followed the lines of nationalities, is indicative of the importance of the international arena in the constitution of criminology itself. Indeed, the international setting enabled the lines of demarcation between the competing groups of penologists to adopt national contours, even when it was known that a school named after a country did not represent all the penologists of that country. Also acknowledging this link between the constitution of national schools and the international context, Renzo Villa centered his periodization of Italian criminal anthropology on the first few ICCAs. According to Villa, the first congress, held in Rome in 1885, was the acme of the formation period of the Italian criminal anthropology as a discipline, a crucial moment for the building of its academic status and network organization; however, it also signalled the beginning of a crisis, with its failure to impact significantly on the penal code of 1889, and with the constitution by Ferri of an interlinked, although clearly distinguished, positivist school of penology (the Scuola Positiva). In Villa’s opinion, this crisis was confirmed by the second ICCA (Paris, 1890), in which the clash between a so-called French School, led by Lacassagne, and the Italian one signified, in practice, the impossibility of fulfilling the vow contained in Lombroso’s project of turning criminal anthropology into a scientific discipline. From that moment on, Lombrosianism was marked by a succession of institutional fail-

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ures, by the narrowing of its disciplinary range, mainly with regard to doctors and forensic psychiatrists. Lombrosian statements became more a certain point of view than a discipline of knowledge.7 Lombrosianism declined rapidly after the death of Lombroso in 1909 and by the end of the First World War it was already a thing of the past, despite maintaining followers in criminologists such as Mariano Patrizio and Benigno di Tullio, together with Lombroso’s own daughters, Paola Marzola and Gina Lombroso, and his sons-in-law and closest collaborators, Mario Carrara and Guglielmo Ferrero. But while Lombrosianism became a relic cherished by a somewhat eccentric family and a few disciples, and thus an easy target for the new candidates to the status of criminologists and penal scientists, positivist penology maintained some credibility and resisted the blows of the so-called technical–juridical school of penal thought (sometimes referred to as the Third School) that emerged in Italy in the late 1900s. The relative independence of the scuola positiva vis-à-vis Lombrosianism, the conquest of places in the academia by jurists formed in positivism and Ferri’s growing international prestige and chameleonic political qualities explain much of this resilience. The relative independence of the positivist school of penology from Lombrosian criminal anthropology had both theoretical and more practical, or organizational, grounds. Positivist penology predicated penal sanctions on a strictly utilitarian concept of ‘social defence’ understood as the need to protect the constitutive elements of the society and guarantee its organic functioning. Penal sanctions entered the vaster ensemble of the measures taken by the state to address aggression towards the society and threats made against it. Such measures included preventive as well as reactive sanctions and were preferably to take the form of political initiatives to reduce the causes of crime, significantly called the ‘penal substitutes’, to a minimum. Criminal law was, therefore, subsumed within a ‘criminal sociology’ in which knowledge of the causes of crime – which Ferri admitted to be economic, social and biological – led, through a scientifically established, and thus irretrievable, relation, to a given set of measures.8 As Renzo Villa also reminds us, the concept of ‘social defence’ was not intrinsically linked to Lombrosian criminal anthropology. In matter of fact, it was already present in a tradition that can be traced back to several authors of the classical school.9 Only with Garofalo and Ferri was it linked to criminal anthropology in the late 1870s and early 1880s: inasmuch as the latter had a legitimizing potential for the conceptions based on the idea of social defence, for criminal anthropologists Ferri’s doctrine of social defence offered their theories the possibility of practical articulation. The relation between Ferrian social defence and Lombrosian biological criminology thus appears to have been much more one of a historically conditioned association – a sort of symbiosis – or of mutual appropriation, than one of strict causality. However, a certain degree

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of mutual influence is also to be considered. Indeed, we should not minimize the fact that Ferri himself attributed his initiation in the study of the positivist philosophy to Roberto Ardigò and Cesare Lombroso, alongside his master in criminal law, Pietro Ellero, whom he succeeded in the University of Bologna.10 This relative theoretical independence had its most visible organizational facets in the creation of a periodical autonomous from the Lombrosian circle as soon as 1881 – La Scuola Positiva – and by means of investment, on the part of Ferri and his associates, in more strictly penal congresses, in which Lombroso and his closest collaborators did not participate. While, as we have seen, for many criminologists and penologists, the congresses were a privileged opportunity to showcase new concepts and solutions on the use of the state’s coercive powers, no one formulated this better than Enrico Ferri himself. In 1925, he addressed his students at the University of Rome, highlighting three events he considered of utmost importance in the field of criminology that year. The first was the beginning of the process of penal reform with the law project authorizing the Minister of Justice to change the penal code and other important penal laws. In turn, the other two events were tightly linked to the international initiatives in the penal field. One had been the International Conference of Judiciary Police in New York, where, according to Ferri, Ottolenghi had successfully called attention to the thrusting Italian scientific police. The other was to be found in the International Penitentiary Congress in London.11 The high importance Ferri attributed to these congresses derived from the fact that they constituted an adequate setting to create innovation and overturn tradition.12 In previous writings, Ferri had already voiced this concept of a well-established relation between what he called the superseding of misoneismo – a neologism proposed by Lombroso meaning the ‘aversion for what is new’ – a feeling and a position he attributed to the mainstream of the academia and of the other actors in the penal field and the international movement. Ferri started to present such a connection in a more systematic way in the 1910s. In a speech delivered in 1911 in the same room of the University of Rome, for example, he announced that after the first ‘misoneistic aversions’, new concepts of social defence began to create roots among the public opinion, the doctrine and the legislation, on the one hand; and, on the other, in a number of international initiatives. While this emphasizes the relation between juridico-penal innovation and the international movement, it also highlights the equation that Ferri established between the former and Italian positivist criminology. In 1911, Ferri spoke of the ‘partial but repeated’ victories of the positivist criminological school in a way that suggested that the congresses’ agendas, their deliberations and their authorities adhered to the positivist school. This was an attempt to persuade his students that its main teachings had been adopted within all the main international instances.13 It was namely the case of the International Union of Penal

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Law, which, in the Brussels Congress in 1910, had altogether moved, according to Ferri, to an intermediary position between the classical and the positivist schools. Therein, the most significant victories had been, one the one hand, the adoption of the concepts of ‘dangerous delinquents’ – in the sense of habitual or multi-recidivist delinquents – and those of ‘unbalanced delinquents’, ‘degenerates’ and ‘born criminals’. On the other hand, Ferri viewed a triumph in the passing of a resolution according to which national legislations were to establish ‘special social security measures against dangerous delinquents’ on account of both their state of legal recidivism and their ‘life habits’, a concept including the criminal ‘hereditary and personal antecedents’.14 In Italy, Ferri expected to see the entire penal system restructured along positivist lines. At the centre of this reform was to feature a new penal code, the formation of which was actually initiated in 1919, upon the invitation of the then Justice Minister, Ludovico Mortara, under the supervision of Ferri himself. Entirely developed according to the principles of the positivist school, the so-called Ferri Project, published in 1921, is an invaluable document for the history of criminal codes, as it shows a logic of codification which is an alternative to that of the classical and neo-classical tradition.15 Indeed, charged by the government with the task of presiding over a commission of penologists for the making of a new penal code, Enrico Ferri took the opportunity to finally rebuild the penal system anew according to the doctrine he had been helping to shape since the late 1870s. The project was left incomplete, with only the Preliminary Dispositions (articles 1 to 10), title 1 relating to the offenses (articles 11 to 17) and title 2 referring to the delinquent (articles 18 to 38), being published. All these titles belonged to book 1 of the project, for which a final title regarding the sanctions was foreseen. The project guidelines, as presented by Ferri, were a direct response to the perceived social conditions and the new features of criminality. Ferri stated that the new penal code should target the ‘habitual’ and ‘minor delinquents’ as the main social threats. Accordingly, all repressive measures were largely aimed at impeding the repetition of criminal acts. In the project, the expiatory and retributive principles based on individual responsibility that grounded the classical and neo-classical tradition were abolished, so that punishment as such would be completely wrested away from the new system of sanctions. In fact, replacing the ‘penalty’, a word removed from the Ferri Project, the concept of ‘sanction’ was itself a programme of criminal policy. Freed from all moral and religious connotations of retribution, expiation, vengeance and even punishment, the notion of ‘sanction’ was intended to be neutral, and thus to better fit a certain representation of scientific value than that of ‘penalty’. As Ferri put it, the sanction was a mere social reaction – otherwise comparable to that of physical and biological phenomena – to an action. In this sense it could be envisaged alongside other types of social reactions (i.e. sanctions, such as those of administrative and civil character), and even with extra-juridical reactions, namely public opinion.16

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In this context, the penal code was the juridical document in which a specific type of sanction was defined. This type of sanction characterized the form of state intervention that took place following the commitment and discovery of a crime. Graduated along three increasingly severe forms – reparatory, repressive and eliminatory – penal sanctions were to depend almost exclusively on the dangerousness of the criminal. Reparatory sanctions applied when the offense was small, it did not seriously offend the ‘primordial feelings of piety and probity’ and the delinquent was not dangerous. They included the publication of the sentence and, in case of a judicial pardon, the reparation of the damage. This was a kind of sanction on which positivists often insisted, since it could substitute, in many cases, the short prison sentences considered to favour the moral corruption of persons convicted for petty crimes. In turn, repressive sanctions were prescribed to the cases in which the offender appeared dangerous, either because of the committed crime or because of precedents and the nature of his personality. They implied a more rigid form of personal coercion such as, for instance, temporary confinement in an institution of detention. At the top of the scale, eliminatory sanctions were to be applied whenever the delinquent presented ‘dangerousness in its highest degree’, justifying his segregation from society for life or for an indeterminate length of time.17 This vision of the use of coercion on the part of the state imposed a whole different rationale from that of the existing penal code, in line with the declared objective of the Minister of Justice Ludovico Mortara of proceeding to a substantial reform of the criminal law system.18 Sanctions were to be entirely dependent on a judgement establishing the degree of probability in the repetition of the crime. Therefore, instead of departing from the juridical goods to protect – an aspect that received scant attention on the part of the positivist commission – the codification of crimes and sanctions was, in this project, entirely predicated on the classification of criminals. Three distinctions structured the project: these were between ‘occasional’ and ‘habitual delinquents’; adults and minors; and common and politico-social delinquents.19 The latter distinction best demonstrates the priority attributed to the subjective elements of the crime, that is to say, those linked to the personality and motives of its author, to the detriment of attention paid to the act itself and the ‘juridical good’ harmed. In reality, the fundamental principle here was that ‘the decisive element is always constituted by the psychological and personal motives determining the author of the crime’.20 Based on this, article 13 of the project established as politico-social offenses those committed exclusively for political motives or for the sake of the collective interest, meaning by this all those motives and objectives pursuing the social and economic improvement of the society, which were to be considered superior to those of a purely egoistic nature. In this regard, the difference between these types of offenses and common crimes had in the ‘objective difference of the fact’ a secondary element.

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Observing that in the penal code then in force (the so-called Zanardelli Code, in force since 1889) it was the ‘fact’ that characterized political crimes, which placed them within the category of ‘crimes against the security of the State’, Ferri defended that, on the one hand, these were not always political in their motivation, and that, on the other hand, many offenses then considered common could have exclusively political motivations. For example, Ferri argued, crimes against political liberties and freedom of cult, as well as those against freedom of work, were generally political in nature. However, practical confirmation of this demanded the verification of the determining motives, to which the objectivity of the act was thereby subordinated.21 Fitting in with these criminal types, Enrico Ferri established four varieties of sanctions: those applied following common offenses committed by adults (individuals above 18 years old); those for politico-social offenses committed by adults; those for offenses committed by minors; and those regarding the crimes committed by adult individuals ‘in a state of mental illness’.22 The differentiation of sanctions along these lines was solely qualitative, a feature that actually broke with the twofold logic of classical punishment. Here Ferri observed a tendency towards a uniform penalty – imprisonment – to be graduated according to the single criterion of time duration, which was to be proportional to the crime committed and, only secondarily, the imposition of different kinds of penalties – such as forced work and transportation, and death – the application of which depended on the types and the gravity of the crime. In sharp contrast with this, in the Ferri Project the personality of the delinquent was to be the only criterion used to decide the type of sanction to be applied. As to the length of sanctions, indeterminacy became the leading principle, with suspension being conditioned upon the cessation of the threat posed by the criminal.23 Henceforth, in the work of the Ferri Commission, penal law became, or was ideally to become, a pure technique of sanctions. Enlightened juridical codification pursued an ideal of universality embodied both in the core of political principles, which by definition were to be valid for all humanity, and in the idea that the descriptive and normative contents of the code be organized along the lines of a scientific ratio. Yet, the elements of scientificity and universality contained in the Enlightenment concept of codification was displaced from the politico-scientific definition of the substantial values to protect through the penal law to the sanctioning system itself. As we saw in chapter 1, this shift accorded entirely with the great tendencies of penal reform in Western countries. In addition, Ferri and other self-proclaimed positivist penologists used examples from institutional practices, mainly in the common law world, and standards set by the international penal movement, to justify their proposals. In this sense, the Ferri Project was not only an expression of a political and disciplinary configuration specific to Italy but expressed, in a radical form, a process in which many agents from different countries of the Western world were involved.

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The ‘Universality of Repression’ The London Penitentiary Congress of 1925 was welcomed by the congress attendants with particular enthusiasm and expectation. After the last congress, in Washington in 1910, this largest and most visible of all international events related with the public discussion of crime and the penal measures to face it, had already been twice attempted with no success. First the war, then an openly acknowledged lack of organizing capacity had interrupted the five-yearly periodicity recommended by the statutes of its executive bureau – the International Penitentiary Commission. The congress agenda was apparently as varied as its participants. Laid out as a set of questions, divided into the three categories of legislation, administration and prevention, it included issues such as the extension of arbitrary powers of judges, the alternatives to imprisonment, the importance of implementing scientific laboratories in prisons for the study of criminals, the classification of prisoners, the treatment of recidivists, the fight against international crime, the protection to be given to children in ‘moral danger’, and many other general and more specialized topics. When the International Penitentiary Commission added the qualification of penal to the designation of its congresses in 1930, it was only acknowledging a de facto situation which had gradually emerged since the 1890s. Indeed, the Prague and Berlin congresses, of 1930 and 1935 respectively, were named International Penal and Penitentiary Congresses (IPPC), validating the gradual shift of focus from the issues of prison administration into the juridical underpinnings of penal systems.24 Additionally, the inclusion, also in 1930 and 1935, of a fourth section of debate devoted to Children and Minors formalized the field of juvenile delinquency as yet another domain of intervention. To be sure, this was not a complete novelty, for some pre-war congresses had already included a similar section. Nevertheless, this move restated the view that the congresses were an occasion for discussion which went beyond prisons and, more importantly, the perspective that the possible objects of penal intervention extended over a vast set of social phenomena, thus extending the penal question beyond the legally defined spheres of crime and punishment. Yet another sign of this orientation was the relative emancipation of the commission vis-à-vis the organization of congresses. This happened mostly after 1926, the year in which a documentation centre was created – the Permanent Bureau, the headquarters of which were in Bern. After this point, the commission and the Permanent Bureau became, in their own way, a sort of joint research centre for criminological and penal issues. Together they carried out studies that took the form of ‘enquiries, special studies, proposals, drafts, or memoranda, on certain questions of detail’.25 From 1931 on, the commission’s periodical publication – the Bulletin de la Commission Pénitentiaire Internationale – started publishing studies and proposals on its own initiative, and some of them in collaboration with the League of Nations.

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By 1942, the official objectives of both the IPPC and the Commission were, retrospectively, voiced as follows: From the very outset it has been the aim of the Congresses and the Commission to form gradually, by the joint efforts of official representatives, men of penal practice and science, and philanthropic organisations, a universal conscience, as it were, regarding the problems of crime and prison, and thus to arrive at the internationalisation of certain principles or standards, by submitting proposals to the governments, who should examine them and introduce them by degrees into their legislations. 26

The main objective of the commission can thus be summarized as the pursuit of universal forms of punishing, to be implemented by direct influence on governments. ‘Universality’ and ‘science’ were viewed as mutually implied. The coming into being of these congresses was thus closely linked to the idea that penal intervention was a matter of science, which, as such, had to be developed in universalistic terms. In its turn, the International Union of Criminal Law was re-established in 1924 with the new name of the International Association of Criminal Law. This retrieval was mainly due to the joint efforts of the French penologist, Donnedieu de Vabres and the Spanish criminologist, Quintiliano Saldaña, who was also well known at the time. Despite the fact that the old union had, as we have seen, a strong Germanic character, the new association, at first sight more linked to national juridical traditions belonging to the Napoleonic paradigm, was placed in continuity with its pre-war predecessor.27 Indeed, the new association attempted to link the ‘penal theoreticians and practitioners’ of different countries to a ‘benefactor solidarity’ and to impact on the penal reform movement, mostly by contributing studies on criminal sociology and criminal policies.28 One of its declared objectives was to ‘favour theoretical and practical international penal law, in view of building a universal penal law, and of coordinating the rules of the criminal procedure and instruction’.29 Based in Paris, the International Association of Penal Law was closely linked to the French Société Générale des Prisons. Not surprisingly, the International Association committed itself to following the French Société’s example of political neutrality and scientific independence.30 The official publication of the association – Revue Internationale de Droit Pénal – was to contain doctrinal articles, reports on the association’s work in progress and information on the legislative and jurisprudential developments in the states represented therein. In reality, it was successful in this objective, publishing articles by many of the established and emerging authorities in the field, covering a wide range of issues – from the new biological advances in criminology to the impact of Freud’s work in the understanding of ‘criminal personality’, among other topics. In the constitutive assembly of the association, the Romanian professor of penal law, Vespasien Pella, summarized enthusiastically its spirit and goal: ‘Le but éloigné, mais suprême, que nous devons tous poursuivre: l’universalité de la répression!’31 The idea of developing ‘a universal penal law’ and the aim of the

50

Crime and the Fascist State, 1850–1940

‘coordination of the rules of the criminal procedure and instruction’ had been a distinctive feature of the pre-war International Union of Penal Law (IKV). In fact, the notion can be traced back to the project of the Vergleichende Darstelung des Deutschen und Ausländischen Strafrechts, a series of fifteen volumes published between 1905 and 1908 at the initiative of the IKV and other criminological institutions. Its objective was described as obtaining ‘a reliable and exhaustive review of the basic law principles of all the major civilized states and to provide comparative presentations of the most important topics pertaining to the field of criminal law’.32 This project was promoted by the Ministry of Justice to be used as a source for a new penal code of the German Empire. Von Liszt, however, intended to go further and establish, on the basis of this kind of comparative operation, the pillars for an international penal legislation, later described both as the ‘unification of the penal codes’ and the ‘universalizing of the penal law’.33 In the context of the post-First World War period, this endeavour was restored and subordinated to the construction of a ‘peaceful world order’, as its Vice-President, Quintiliano Saldaña, solemnly declared, his remarks followed by enthusiastic applause.34 This eventually proved to be more than mere rhetoric. Some of the association’s members attempted, through concrete initiatives, to link their work on penitentiary science and penal law to the idea of a ‘peaceful world order’. It is particularly important here to highlight the initiative of one of its most prominent members, Vespasien Pella, quoted above. The author of a project for an international criminal court, he became the major promoter of a conference gathering the commissions of several countries in which new penal codes were being redacted. Just a year later, in 1928, this conference was followed by another of a similar nature, and, until 1940, six more conferences were organized. Participation was initially restricted to the countries with ongoing projects for new penal codes – Belgium, Spain, Greece, France, Italy, Poland, Romany, Yugoslavia and Czechoslovakia.35 The so-called Conferences for the Unification of Penal Law were thus born, eventually constituting the terrain on which the project of an international criminal court set its roots. In 1930 these conferences emerged as a permanent bureau, headquartered in Bucharest. Initially limited to the states that were elaborating new penal codes, as mentioned above, the Bureau extended both its dimension and its range of action. Rooted in the core of the civilian tradition and anchored by the main countries to emerge from the postwar political reconfiguration, these congresses were particularly auspicious as to the possibility of revitalizing the codified criminal law.36 The new countries that emerged from the war were, of course, undergoing a process of institutional re-building, including the re-building of their penal institutions; this, together with their status as cutting-edge cases in the emerging forms welfare state, must have favoured the idea that they were privileged terrains for penal experimentation. The fact that, at least theoretically, the institutional

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blockages to penal reform were weaker in these new countries, was itself a good sign as to the possibilities for criminological and penal innovation. Although the official organs of the international penal organizations sought to sustain the idea that much had changed in the penal systems of the Western world during the preceding thirty years, the notion that a qualitative jump was needed to face the new challenges of the time became paramount. For the supporters of this view, this was due not so much – or not only – to the insufficiencies of criminology, but mainly to the fact that the bulk of the penal reforms sustained by ‘science’ had, in reality, fallen short of being applied. The reasons for this were many and varied locally. However, the institutional blockages and the war were generally considered as having a great share of responsibility in this. The objective of the Conferences for the Unification of Penal Law, as initially declared, was to submit their conclusions – which took the form of ‘resolutions’ – to the governments of the participating states, so that they could take them into account when reforming their penal codes. The workings of these conferences were to be carried out, similarly to their predecessors, through debates in specialized commissions, followed by a generalized and conclusive debate in the plenary assembly, these discussions being entirely reproduced in the conference procedures.37 Their agendas contained issues belonging, on the one hand, to the field of criminal law with an international dimension (delicta iuris gentium). Included here were topics such as international recidivism, extradition and certain crimes of international nature (terrorism, war propaganda, falsification of money, traffic in slaves, women and children and piracy).38 On the other hand, the conferences were intent on focusing on the ‘essential principles of the general part of the Penal Codes’, the choice of the topics falling initially on attempt and complicity and on legitimate defence and the state of necessity.39 Although these three organizations stood at the front line of international networking within the penal field, during the interwar period, other associations of international character continued their work or were formed, and were often connected with the former. These were either more focused – such as the International Commission of International Police, based in Vienna, and the International Institute of Sociology, the agenda of which included the sociological forecast of crimes for the sake of prevention – or more generalist in their scope, such as the Howard Association (instituted in London, in 1866, for the ‘promotion of the best methods of the treatment and prevention of crime’) and the International Law Association (also based in London).40 This was also the period in which several national research agencies of criminology were brought into being: the Società di antropologia e sociologia criminale in Italy, the Kriminalbiologische Gesellschaft in Austria, the Société de profilaxie criminelle in France, an agency with the same name in Belgium and the Institute for the Scientific Treatment of Delinquency in England, among a few others.41 Significantly,

52

Crime and the Fascist State, 1850–1940

these agencies were connected in the form of an international federation. The League of Nations also touched on a few criminal and penal problems. In reality, it sought to contribute to the international fight against certain types of crime, namely, the traffic in children, women, drugs and obscene publications. In order to meet the objective of a progressively standardized criminal law, the three main international organizations mobilized a great number of persons, amongst whom the different functions necessary to the working of congresses were distributed. While in the International Congresses of Penal Law and in the International Conferences for the Unification of Penal Law, alongside some diplomats and political representatives, these actors were invariably sorted out from the diverse juridical professions – law professors, magistrates, government officials from the ministries of Justice and Interior, and advocates – in the International Penal and Penitentiary Congresses the range of activities related to the diverse national criminal fields was significantly vaster (see Table 2.1). Table 2.1: Expertise credentials represented in the International Penal and Penitentiary Congresses Sections/Year Expertise credentials Public officials

1925 1930 1935 30 33 35

Magistrates

27

23

34

Law professors

32

38

45

Advocates

11

2

9

Police officials

2

0

3

Prison directors

6

12

8

Directors of correction houses

5

8

1

Prison doctors

5

1

0

Doctors/medicine professors

7

3

7

11

9

2

0

Representatives of philantropic/ 25 patronage associations Representatives of juridico-scientific 6 associations

Totals 98 (21.9%) 84 (18.8%) 115 (25.7%) 22 (4.9%) 5 (1.1%) 26 (5.8%) 14 (3.1%) 6 (1.3%) 13 (2.9%) 55 (12.3%) 8 (1.7%) 446 (100%)

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Indeed, besides the kinds of actors cited above, prison governors, reformatory supervisors, doctors and medicine professors, representatives of philanthropic and patronage associations, as well as representatives of other juridico-scientific associations – all composed the great assemblies that characterized them. However, by no means were their voices uniformly heard: prepared by a commission constituted of members with juridical professions, the debates were based on reports entrusted selectively, and according to considerations of expertise, to these different types of actors. The distribution of the task of preparing these reports thus helped to construct a certain structure characteristic of the IPPC. It is important to look briefly at this structure, for it can give us some indications as to the evolution of penitentiary science – which, as we saw, was a project largely linked to the international scene and pursued by the then half-century old organization – and on the relation between juridical expertise and the criminological sciences. Yet let us first use this information to better characterize this particular series of congresses in the interwar period. Taking the references to the expertise credentials of the authors of reports as an indicator of the intended division of work in the penitentiary congresses, we observe that the section of ‘Legislation’ was ascribed, in great part, to law professors and magistrates, and to a lesser degree to government officials and senior civil servants; that the section of ‘Administration’ was attributed mainly to government officials and senior civil servants, followed at distance by law professors and prison governors; that the section of ‘Prevention’ was also a domain of law professors, helped by government officials and senior civil servants, magistrates and representatives of philanthropic and patronage associations; and, finally, that the section of ‘Children and Minors’ had magistrates as its major protagonists, followed by government officials and senior civil servants, and, with also some meaning, by law professors, representatives of philanthropic and patronage associations and reformatory supervisors. Prison governors had some influence in the section of ‘Administration’. Also with an active, albeit much less significant, participation there were doctors and medicine professors, mainly in the sections of ‘Administration’ and ‘Prevention’. The representatives of philanthropic and patronage associations had some importance in the London Congress, mainly in the section of ‘Prevention’. However, their contribution with reports declined sharply thereafter. Only very rarely were police officials and representatives of other juridico-scientific associations called to author reports on the issues debated, the former being limited to the issues of ‘Administration’ and ‘Prevention’ (and ‘Children and Minors’ in just one case) (see Table 2.2).

Sections/Year Legislation Expertise credentials 1925 1930 1935 Government officials and senior civil servants 8 6 3 Magistrates 13 5 15 Law professors 17 19 19 Advocates 4 0 3 Police officials 0 0 0 Prison governors 1 1 0 Reformatory supervisors 0 0 0 Prison doctors 0 0 0 Doctors/Medicine professors 0 0 0 Representatives of philanthropic 5 0 0 /patronage associations Representatives of juridico3 0 0 scientific associations

Prevention

Children

14 3 5 3 0 4 3 4 4 6 1

17 33 56 7 0 2 0 0 0 5 3

0

0

17 4 5 0 0 10 0 1 2

0

1

15 2 10 0 2 6 0 0 2

1

7

46 9 20 3 2 20 3 5 8

2

14

8 11 10 4 2 1 2 1 3

1

5

9 4 8 0 0 0 1 0 0

0

5

5 7 12 3 0 2 0 0 4

3

24

22 22 30 7 2 3 3 1 7

–

–

– – – – – – – – –

1

6

3 10 6 2 0 1 7 0 1

0

3

12 10 4 3 1 0 1 0 1

1

9

15 20 10 5 1 1 8 0 2

Total 1925 1930 1935 Total 1925 1930 1935 Total 1925 1930 1935 Total

Administration

Table 2.2: Assignment of reports according to the expertise credential or institutional status of the participants in the International Congresses of Penal and Penitentiary Science (1925–35)

54 Crime and the Fascist State, 1850–1940

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55

In sum, as the Table 2.2 illustrates regarding the aggregation of all reports given in the three congresses of the interwar period, the bureaucratic and juridical professions clearly prevailed. These professions were mostly linked to the central coordination of penal and penitentiary systems (government officials and senior civil servants), with court activities (magistrates and advocates) and with the doctrinal elaboration and teaching of criminal law (university professors). The more empirical functions of prison administration had an evident subordinated place. All in all, the congresses were much more ‘penal’ than ‘penitentiary’, at least in terms of the most solicited credentials of expertise. Similar observations can be made with reference to the relative weight of the juridical and medical professions, of which the latter was also clearly secondary. Added to this, it is important to note that even in the sections in which prison governors and doctors were called to give opinions, jurists were the most represented. These observations are indicative of how penitentiary science, conceived as a realm of knowledge relatively autonomous from criminal law, as it was in the nineteenth century, either suffered some decline or was incorporated into the field of competences of jurists.42 The same applies to what some historians have analysed as a situation of competition for influence in the criminal field between jurists and doctors. In fact, with the disappearance of the ICCA, with regard to which there is indeed evidence of such a rivalry, in the interwar period jurists appear, to a much larger degree, to have administered, rather than concurred with, the discourses articulated by the medical professions and possibly to have integrated some of the criminological competences that hitherto were claimed by doctors. Added to the fact that the international penal arenas where doctors traditionally prevailed never recovered the importance they had before the First World War, this suggests a certain general trend towards the incorporation of the criminological discourse by the juridical and the administrative professions.

The Agenda of Social Defence in the Interwar Period Continuing this line of thought, I would like to argue that, after the war, criminological themes emerged only in connection with – and subordinated to – more strictly penal issues. A glance at the ensemble of agendas of the various congresses is illustrative of this. Indeed only three of the seventy-eight questions submitted to discussion can be considered criminological, namely, those of the International Penitentiary Congress of London in 1925 regarding the ‘Special detention for recidivists and the Installations for the study of criminals’ [in prisons], and that of the Prague Congress in 1930 on the ‘International cooperation for the study of criminality’.43

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Crime and the Fascist State, 1850–1940

Though almost entirely devoted to penal issues, there were, however, significant differences of agenda. Reflecting the different objectives behind each one of these three penal organizations, their agendas show that, in the transnational penal field, some degree of specialization occurred, and, accordingly, that a few discursive sub-domains within the vast field of penality were constituted (Figure 2.1).

1840

1850

1860

1870

Penitentiary Science

1880

1890

Criminology

1900

1910

Penal Law

1920

1930

1940

1950

Unification of Penal Law

Figure 2.1: International Congresses of Criminal Law, Criminology and Penitentiary Science. Sources: J. S. Van Der Aa (ed.), Actes du Congrès Pénal de Londres, Août 1925, 4 vols (Berne: Bureau de la Commission Pénitentiaire Internationale, 1927); Actes du Congrès Pénal et Pénitentiaire International de Prague, Août 1930, 5 vols (Berne: Bureau de la Commission Pénitentiaire Internationale, 1931); Actes du Congrès Pénal et Pénitentiaire International de Berlin, Août 1935, 5 vols (Berne: Bureau de la Commission Pénitentiaire Internationale, 1936).

To sum up, as the IPPC tended to focus on the more general aspects of the penal systems, and also on protective, rather than strictly repressive, forms of state intervention in society, we can safely say that they fostered a wide concept of criminal policy that linked together the juridico-penal concepts with some social, and sometimes economic, issues of the political agendas of the time. The International Congresses of Penal Law, in turn, while also focusing on the systemic aspects of national penal systems, placed a far greater emphasis on procedural questions. Initially, the International Conferences for the Unification of Penal Law also covered some basics of the penal systems. However, after 1933 they seem to have intently specialized on incriminations with an international range.44

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Finally, the League of Nations developed a humanitarian point of view within the criminal field by both promoting the Standard Minimum Rules for the Treatment of Prisoners and insisting on the repression of certain types of international crimes against persons. Indeed, in 1931, applying a resolution taken by its general assembly, the General Secretary developed contacts with the scientific organizations that treated the penal and penitentiary questions at an international plane, and, from then on, the League of Nations served as a mediator between the international penal organizations and the states.45 A concrete outcome of these contacts can be found in the Standard Minimum Rules for the Treatment of Prisoners, a product of the collaboration between the International Penitentiary Commission and the League of Nations. But it was with the Bureau and the Conferences for the Unification of Penal Law that the latter established the closest links. The conferences appealed to the League of Nations several times to exercise its influence on the states.46 Over the course of the 1930s, the League of Nations eventually developed its vocation regarding intervention in the criminal field, which took place mainly in the domain of terrorism and that of the endangered infancy.47 However, there also existed a set of themes common to these various organizations. These can be captured, schematically, in three main points: security measures; questions regarding the territoriality of the penal law; and the duties of protection implied by penal repression.

Security Measures Discussed in the meetings of all three international penal organizations, security measures were a relatively recent, albeit not new, juridical figure. It was closely linked to the concept of ‘social defence’ as one of the main legitimizing principles and objectives of the state’s right to punish. Placing the emphasis on both the preventive character of penal repression and on the priority of the society’s right to its existence over that of the single individual, the doctrine of ‘social defence’ advocated an individualized ‘treatment’ of criminals to be the focus of penal intervention. Accordingly, and contrasting with the concept of ‘general prevention’ – a euphemism for the classical notion of ‘intimidation’ – this doctrine was intent on promoting ‘special prevention’. The juridical figure that would allow ‘special prevention’ to be operational within the penal order was that of ‘security measures’. Although such measures were generally to be applied to individuals who had committed at least one crime, they enabled judges to detach some of the usual penal instruments used on individuals – mainly imprisonment and surveillance – from the crimes committed and predicate them solely on the degree of danger that these individuals were considered to represent. Thus relying on a fundamental conceptual dissociation between personal responsibility (or individual guilt) and social dangerousness, security measures were advocated as an alternative to the classical penalties

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Crime and the Fascist State, 1850–1940

(dependent on the subjective guilt of criminals). Additionally, they allowed for the doubling of the proper punitive measures with confinement for indeterminate lengths of time, in case penal rehabilitation was sensed to have failed. This doctrine appears to us as radicalization of the correctionalist approach developed with nineteenth-century penitentiaries, albeit now taken into the domain of juridical codification rather than remaining restricted to that of penitentiary (disciplinary) treatment and incorporating a segregative sector, to employ David Garland’s terms, for the ‘incorrigible’.48 From the classical juridical doctrine, it retained the idea that the crime constituted the main index of the criminal’s personality. However, it called for – rather than it being based upon – the building of knowledge on the criminal, hence its appeal to the positivists. Importantly, this juridical figure also brought into the penal field a whole set of new themes related to the higher degree of prevention that could be guaranteed through the biological and moral improvement of the population. Addressed in its own right as a new juridical concept to be analysed theoretically and in all its practical implications, the institute of security measures fostered discussions on the legitimacy of the application of coercive measures without an accomplished crime, the definition of penal responsibility, the treatment of delinquent children, the sterilization of criminals and the extension of the state’s sphere of intervention for the sake of the protection of society. To be sure, protection involved hygiene, sexuality and the family. Accordingly, it rooted the penal debate in the discourses on the dysgenic consequences of the First World War and of the older, and deeper ‘evils of civilization’. A whole new horizon in the political debate – one closely linked to a new discipline in a formation known as ‘criminal eugenics’ – was thereby opened within the core of the penal question.

The Territoriality of Penal Law The ‘humanitarian point of view’ taken by the League of Nations, with its focus on the crimes against human dignity, echoed in the juridically anchored notion of ius gentium (law of the people), placed midway between natural and positive law, and, in contrast with the latter, going beyond the borders of states. Linked to questions relayed to the traffic of slaves, women and children, the concept of ius gentium was used in debates of the various organizations to sustain the necessity of international cooperation to repress these crimes and as an argument for the establishment of an international criminal jurisdiction.49 Together with the above-mentioned types of criminal traffic, crimes such as the forgery of money and papers of value, traffic in drugs and ‘obscene publications’, sea and air piracy, terrorism and ‘anarchist attempts’, falsification of passports and carriage of weapons, formed a newly perceived criminal domain – the delicta iuris gentium – for which the ‘universal morale and the international cultural community’ demanded a punitive intervention. In a world of

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increased mobility and economic interdependence, all these crimes appeared as a serious threat to the states. Such a menace required adequate responses in the forms of increased surveillance, new types of incriminations and new sanctions. Above all, these new forms of danger should entail new forms of action by way of increased international collaboration in the domains of policing and justice within which institutions such as an international criminal court and a standard extradition treaty would be the invaluable instruments. However, the design of these practical measures was to go hand in hand with doctrinal elaboration, as the revision of the principle of territoriality was rendered necessary.50

A ‘Humanitarian and Social Point of View’ Referring to the Standard Minimum Rules for the Treatment of Prisoners, the International Penal and Penitentiary Commission declared that ‘these rules do not in their entirety describe a model condition of things, but they serve to indicate the minimum conditions which should be observed in the treatment of prisoners from the humanitarian and social point of view’.51 Although in their concern with the living conditions of prisoners they prolonged the philanthropic impulse of the eighteenth and nineteenth centuries, in their more socially aware and state-based forms of intervention in the domain of minor delinquency – through both repression and protection – these rules did constitute a somewhat new ‘humanitarian’ point of view. While this was most evident in the interventions of the League of Nations in the penal domain, it was also present in the discourses developed within the meetings of the other organizations. For the International Penal and Penitentiary Commission it was implied by a certain sense of duty in providing social protection, which, side by side with repression, should be part of criminal policies. This combination emerged very clearly in the sections of Prevention and Children. In contrast, the ‘humanitarian and social point of view’ is less evident in the International Congresses of Penal Law, which was more focused on strictly juridical issues. However, we have seen that a commitment to contribute to world peace by means of a certain juridical standardization and cooperation in the fight against crime was declared at the moment of the association’s post-war re-foundation. Such a commitment constituted a major motif for the creation of the International Conferences for the Unification of Penal Law, where these goals were systematically pursued, and was formally brought to the attention of its members in its last congress before the war.52 Together with the growing importance given to the crime of abandonment of family, with the perceived urgency of a greater intervention of the state in society for the sake of crime prevention, this concern for world peace gave the penal question a significance well beyond the mere reform of criminal law.

60

Crime and the Fascist State, 1850–1940

Overall, these various enterprises embodied a critique of the fundamentals of the penal classical tradition inherited from the liberal nineteenth century nation-states. This becomes particularly clear, of course, in the case of the security measures (with their disjunction from an evaluation of the subjective guilt of criminals), in the related discussions regarding the indeterminate sentences and also in the questioning of the principle of the non-retroactivity of the penal law, as it was implied by the centrality of the concept of ‘dangerousness’. All these issues, when applied, certainly countered some of the most important classic procedural and substantive individual guarantees. Linked as they were to the idea that ‘social defence’ was the main justification for punishment, they clearly stated the primacy of society, represented by the state, over the individual. In addition, while the concept of ‘the guarantees in the treatment of prisoners’ can be viewed as a development of a nineteenth-century philanthropic stand, its codification as a juridical figure, alongside the repressive/protective role of the state towards endangered infancy, reveals that a new conception of the state itself was beginning to emerge in these debates. As David Garland rightly puts it, this conceptual and strategic combination of care and social protection formed the basis of a ‘welfarist penality’.53 It is in the light of this proto-welfare concept of the state that the emergence of the eugenic debates is to be viewed. Lastly, the new emphasis on the issues that questioned the principle of territoriality – ‘one of the axioms of the [classical] penal law’ – entailed if not a thorough derogation of such principle, at least its combination it with other rationales.54 The full significance of this can only be understood in the light of the important remarks that historian Lindsay Farmer makes on the centrality of the question of territoriality within classical penal law, namely its embeddedness in a particular physical space. Together with this physical legal landscape, the issues of criminal jurisdiction concern what Farmer calls its ‘metaphysical landscape’, that is, ‘the various criteria according to which the conceptual structure of the law is organized’. The metaphysical landscape of law includes an ‘imaginary space’, i.e. ‘the space within which law is seen as the fundamental social institution, within the bounds of which its truth holds sway over those of economy, politics, science’; more than geographical space, ‘it is a way of imagining a shared way of life, common values and community’.55 It is clear that the discussions on the issues of territoriality fostered new – at least imagined or desired – metaphysical landscapes in the criminal field. Such landscapes were cast in the terms of a horizon of standardized, ‘purely scientific’, procedures and ultimately as an international criminal jurisdiction.56

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In Search of a Penal Model The idea that the First World War had had an important role in the shaping of new forms and dimensions of crime was now a central topic in criminological discourses. It was part of the metaphysical landscape of penal reform. Some of the actors involved in this process, at the international level, attempted to go beyond vague statements and provide detailed studies on the effects of war upon criminality. A representative example is that of the Hungarian professor, Ervin Hacker, who, in an article published in 1927, presented statistics to prove that, in the aftermath of the First World War, the number of crimes had increased drastically. This, he argued, was due to fact that once discharged from the military service, many soldiers lost their sense of responsibility and discipline, and, as they were accustomed to violence, became particularly prone to turning into criminals. In addition, during the years 1914–18, the number of crimes committed by women and children had risen, mostly in the form of crimes against property. Although the period following the war saw a slow return to normality, Hacker claimed that the phenomenon caused a very worrying increase in juvenile delinquency.57 For similar reasons, the war was also identified as having aggravated other problems of order, such as terrorism and anarchism. Traditionally merged with common criminality, the idea remained that these various attempts against the social order were, to a large extent, reciprocally implied. The dangers of revolution and anarchy, which also had deep-seated roots in the criminological discourses, now loomed largest in the Russian Revolution, which seemed to announce to the liberal–capitalist world that a more extreme form of danger was real. Accordingly, revolution was now sometimes perceived of as the end point of continuous series of threats posed to order. But besides the war, ‘civilization’ itself brought new forms of danger. The uncontrolled growth of cities, the development of cinema, the circulation of ‘obscene publications’, the growing interconnectedness of countries, favouring international crime – all these and other ‘evils of civilization’ abounded among the topics that emerged in the discourses on the root causes of crime. As far as the new face of disorder was concerned, the subject of war and its consequences, often described in terms of an overall moral corruption, saturated the penal debates in Italy and reflected in the report on the penal code signed by Alfredo Rocco.58 This feature was not particularly characteristic of Italy but extended to most European countries. However, in Italy, a discourse establishing a link between social disorder and the First World War gained enormous momentum and is actually indistinguishable from the rise of fascism. Additionally, in Italy and abroad, the politicians and penologists who engaged in such reform shared the idea that the instruments of state control inherited from the liberal period were not sufficient to deal with the new problems of mass society disorder.

62

Crime and the Fascist State, 1850–1940

It is against this backdrop that we must understand the growing importance of Italy as a penal model. The symbolic and effective site of a juridical tradition central to the enlightened reform, and thus solid and prestigious when placed side by side with other European countries, fascist Italy carried out a vigorous penal reform. However, and as paradoxical as this may appear, one main ingredient of this reform resided precisely in the strong reassertion of the classical tradition. In this respect, Italy differed sharply from the states which overtly rejected the classical tradition, such as the USSR in 1926, and some years later, Nazi Germany. While, on the one hand, the discourse on the synthesis of the two schools of penal thought – classical and positivist – supposedly realized by the Rocco Code appealed enormously to the European penologists, on the other hand, Italy appeared quite bold when compared to the juridically conservative France, for example. In reality, more than the vague setting-up of a reference point, the presentation of Italy as an example was the result of a collectively concerted enterprise involving high-rank Italian politicians and penologists. Its impulse can be traced to the very core of fascist ideology, which contained a proper universalistic theme to be rendered manifest in the export of the most notable fascist institutions. From the onset of the ‘fascist revolution’ to the late 1930s, this motive featured prominently in Mussolini’s speeches.59 This characterization of fascism as a universal model was extended concretely to the penal code by Mussolini himself. In the preface to a publication of the political writings and speeches of Alfredo Rocco, Mussolini stated indeed that ‘the Rocco Code is severe and, at the same time, human: the Rocco Code set the foundations of all that which will be the development of future codes, some of which are now defined’.60 The political will to turn Italy into a model of penal institutions was enthusiastically received by the juridical professions.61 Alfredo Rocco was undoubtedly the great instigator of this enterprise, which was signalled by concrete initiatives taken since the early stages of the codification process. For example, the project of the penal code issued in 1927 was immediately translated into French, allowing it to enter international debates, in particular the third Conference for the Unification of Penal Law held in Rome the following year,62 and there is also evidence that the Ministry of Justice sent copies of the definitive text and its report over to jurists of other countries.63 In practice, the propaganda for the Rocco Code relied on the commitment of that which Pietro Costa called the ‘militant jurists’.64 In the International Penitentiary Congress of London, in 1925, two of the four official delegates were the two leading personalities of the neo-classical school of penal thought. These were Arturo Rocco and Vincenzo Manzini, who together with Edoardo Massari and the Minister of Justice, became the crucial actors in the making of the penal code. The fourth official delegate was Enrico Ferri.65 These and other militant jurists actually dominated in the Italian delegations of the international congresses of

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this period.66 In the conferences of the International Association of Penal Law, the official orientation in matters of criminal policy was also heavily represented.67 Yet, more important for the construction of an Italian penal model were the Conferences for the Unification of Penal Law, particularly the one of 1928 in Rome. Significantly, all the main figures of the official penology were present as part of the Italian delegation: Arturo Rocco, Vincenzo Manzini, Edoardo Massari, Ugo Aloisi, Mariano d’Amelio, Enrico Ferri, Rafaelle Garofalo and a few others.68 As a result of the initiative of these politicians and jurists, from 1928 to 1935, an Italian penal model took form. We can synthesize its main features into the following three items: the juridical codification of security measures; the creation of surveillance judges; and the development of the institutional channels between the three sanctioning apparatuses of justice, police and administration.

The Juridical Codification of Security Measures In 1926, Ferri and other advocates of the new sanction had managed to create a platform of consensus on principles until then judged radical, and therefore inapplicable, by most penal reformers. In the IPPC, penologists obtained this agreement by the systematic linking of science with penal experimentation in England and the United States; in the International Association of Penal Law, this occurred through the restoration of the notion of ‘security measures’ in virtually the same terms as in 1913. Ferri’s commitment to the view of a scientific form of punishing eventually turned into active support of the official position on the security measures about to appear in the Rocco Code. Indeed, Ferri engaged in making the propaganda of the Rocco project the most advanced piece of penal legislation due to the extension it gave to the security measures. This became especially clear in the two first Conferences for the Unification of Penal Law. In the first of these (1927), the penologist presented a motion by means of which the conference acknowledged that the Rocco project was to be taken as a model by other countries and included the topic in the agenda of the following meeting.69 Unanimously approved, the Ferri motion took the issue of the security measures into the second Conference for the Unification of Penal Law, conveniently held in Rome in 1928. Now backed by some of the most influential penologists of the fascist regime, Ferri’s position became strong enough to ensure that the Rocco project was literally translated into the text of the first resolution adopted by the conference. Divided into three parts, the topic of the security measures was discussed according to their juridical nature and general organization, their different types, and their execution. Part 1, comprehending the main principles of the sanctions was articulated in six clauses overtly corresponding to articles 200, 203, 204, 205, 206 and 207 of the Italian project of the penal code published in 1927. Whilst allowing for a margin of national adaptation in certain cases, the

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conference thereby helped to affirm a notion of ‘social dangerousness’ close to the Ferrian concept of pericolosità sociale.70 This success was appropriately capitalized upon in Rome in order to obtain further legitimacy for the Rocco Code. In the parliamentary commission over which he presided, D’Amelio referred to the Rome conference in order to reassure those deputies and senators fearful that the security measures would endanger the individual liberties.71 And Alfredo Rocco, addressing the king in the report of the definitive text of the penal code, referred to the same conference with the argument, again in favour of the codification of the security measures, that these had been set as a model for other states: These are the so-called security measures for which the code that is submitted to the High approval of Your Majesty has provided a discipline so wide, so detailed and precise that it was singled out as a model for legislators in many states of Europe in the recent international congress of criminal law held in Rome in May 1928.72

The question of the security measures was tightly connected with the other two topics mentioned above – the surveillance judges and the combining of the various coercive institutions of the state.

The Creation of Surveillance Judges Decreed by a judge together with the sentence or in the time of its execution, the security measures implied that judges watched over the execution of sentences. The primary function of this kind of control was to allow a judge to evaluate the effects of the penalty, or the security measure, over the convict in order to determine the further enforcement of security measures.73 The codification of this new institute – the surveillance judge – entered the transnational penal agenda in the 1930s. In the IPPC of Berlin in 1935, the form and range of intervention of the surveillance judge constituted the first question of section 1 (legislation). The official commentary to the approved resolutions read that while the view formerly prevailed that the judge had merely to examine the case submitted to him and to pronounce the verdict, it has recently been considered that, once the sentence has been pronounced, the judge must not cease to take an interest in the execution of the penalty and a fortiori in the execution of measures of security … The new Italian penal legislation has already to a certain extent introduced supervision by the judge over the execution of the penalty. The question is to what extent and in what manner is admissible and practicable, without creating differences with the prison authorities (administrative authorities) or seriously impeding the prompt and effective action of the execution itself.74

In the institutional configuration under construction, the juridical and the administrative functions were, to some extent, blurred in a new notion of the judge. Entrusting the judges with administrative competences allowed them to over-

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see the execution of sentences and prevent all useless employment of force by prison officials, a move which was unanimously read as an individual guarantee. Conversely, judges now granted juridical legitimacy to an otherwise contested execution of sentences. This twofold dimension of the magisterial function was even more visible in the new sanction of security measures. While the intervention of judges itself became a guarantee of juridical correctness, and therefore also of political legitimacy, an overtly administrative form of punishment, such as the security measures, became possible under condition of being enforced by magistrates.

The Development of the Institutional Channels between the Three Sanctioning Apparatuses This question, treated explicitly at the Berlin Congress, was also reflected in the agendas of other international conferences, namely the Congress of Penal Law in Athens (1936), and that of Paris (1937). Yet, with the principle of the intervention of judges in the execution of sentences well entrenched in the international standards, the topic was approached essentially through the viewpoint of the connection of their functions with the prison administration. And, here, alongside the Italian model, other solutions were examined, namely the Finnish law of 27 May 1932 on ‘dangerous recidivists’ and penitentiary courts created in Poland and Czechoslovakia.75 At stake in the discussion of these examples was the mode of integration of the judicial power in the prison administrative system: should such integration take the form of a single magistrate operating within the terrain of administration? Or was it, instead, to be carried out through the creation of a new hybrid institution composed of judicial and administrative elements (the penitentiary tribunal)? Cutting-edge penal Italy pointed at the former. Less clear remained the connections between the judicial institutional setting and police apparatuses, further developed by the Italian penologists and lawmakers of the period. Nonetheless, the security measures, due to their administrative character, took some penologists to draw a distinction with the sanctions employed by the police in its function of keeping the public order. While the notion of crime allowed consideration of the relation between penalties and security measures, it was that of danger that enabled the relation of the latter and the police measures in a functional distinction. One of the best expressions of this can be found in the report by the Spanish professor of penal law, Inocencio Jimenez, in the Prague Penitentiary Congress of 1935 on a question regarding the security measures: the delimitation of these different possibilities presents technical difficulties. They arise because of the vagueness of these concepts, some of which are still young for science; at the moment the difficulty also stems from the fact that these possibilities and procedures are intertwined in practice.

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Crime and the Fascist State, 1850–1940 However, if we are looking for concrete solutions starting from the current law, we can try a differentiation, which is intended to refine the concepts. It is especially important to separate security measures from police measures, on the one hand, and from sentences, on the other. … Here is our synthesis: Social danger: police measures. Simple criminal threat: security measures. Danger with responsibility: sentence.76

This scheme encapsulated the nodal part of the thought developed in the 1930s on the coercive institutions of states abiding by the rule of law. Structured along the concepts of responsibility and danger, it theorized three relatively independent sanctioning tracks: police, security measures and penal sentences. The functional combination of penal sentences and security measures, the recourse to concepts of criminal dangerousness and social dangerousness (a distinction of Ferrian coinage), and the autonomy attributed to the security police as a sanctioning system proper, each defer to the Italian penal experience. In sum, on the eve of the First World War, the debate on forms of fighting recidivism had reached the point at which indeterminate sentences and the related habitual criminals gained the nature of evidence. Prominent eclectic penologists like Van Hamel and Liszt had, since the early days of the IKV, recommended the juridification of the indeterminate sentences and, before the war, they started to appear in a few penal codes. Yet, the late 1920s and the 1930s were undoubtedly the period of the juridical institutionalization of security measures. This was the case in the following countries, although this is not an exhaustive list: the Soviet Union in 1927, Spain in 1928 and 1931, Yugoslavia in 1929, Belgium in 1930, Italy and Mexico in 1931, Poland in 1932, Germany and Denmark (now through a new penal code) in 1933, Uruguay in 1934, China in 1935 and Portugal in 1936.77 Ferri and Rocco acknowledged that Italy was not the first country to apply the security measures, and was not even the country that had employed the measures in the most comprehensive way: in the early 1920s a few Latin American countries, such as Argentina in 1922 and Peru in 1924, had incorporated this sanction into their penal codes. And the Soviet Union in 1926 had gone much farther than Rocco’s project in the application of the principle of the penal accountability of all delinquents independently of any consideration of their responsibility, in the place given to the security measures and, consequently, in the superseding of the classically oriented mindset that traditionally structured liberal penal systems.78 Now, all these more radical solutions were either too embedded in local social realities to be considered transposable to other countries (e.g. the Latin American penal solutions) or irredeemably tainted with

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ideological motives in breach with the classical juridical tradition (the Soviet Union). Instead, Italy presented its reforms as a development of the latter rationale, thus guaranteeing that the problems of disorder and crime that concerned politicians and penal reformers were given a proper answer without calling into question their political foundations and the pillars of Western juridical culture.

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3 FASCISM AS SOCIAL DEFENCE

Criminal Reform and the Construction of the Fascist State The fascist government abandoned the Ferri Project of 1921 and presented the new code as a mere reform of the penal code of 1889. In addition, the topic of the continuity of tradition played a most crucial role in the codification process. The school of legal thought under the aegis of which the new code was developed was called ‘neo-classical’, and traditional penalties were not only maintained, but actually given further emphasis by the fascist legislators. However, before analysing the significance of penalties and of the neo-classical school1 for the fascist repressive system (chapter 4), it is necessary to tackle a preliminary question: why did the fascist regime keep a criminal code instead of simply adopting the Ferri Project, easily adaptable to the repressive necessities of a strong, authoritarian, state? In this section, I argue that the reasons were strategic, ideological and cultural. In the course of the analysis, it will become apparent that criminal codification became, in fact, a central element in the construction of the fascist state. Criminal reform was, first of all, part of a general strategy for the seizure of the state by the fascist militants. This is particularly well illustrated by the role of Alfredo Rocco in the state reform during the 1920s. Historians of fascism have indeed been unanimous in according great importance to the role of Alfredo Rocco in that process. Among them, Renzo De Felice, in his classical biography on Mussolini, placed enormous emphasis on the ideological and legislative activities of the guardasigilli, whom De Felice considered to have played a prominent role in the group called the ‘fellow-travellers’ (fiancheggiatori) – themselves thought to have been the decisive actors of the transformation of ‘fascism as a movement’ into ‘fascism as a regime’. This group was formed by personalities belonging to the old political class and the bureaucratic state, who were generally moderate, ideologically conservative and loyal to the liberal constitution. Viewing fascism as an opportunity to conquer power within the state apparatus, ‘they kept their trust in Mussolini and let themselves be fasciticized’.2 The fact that, by 1925, Alfredo Rocco had become one of the major personalities of the fascist elite is well documented by his inclusion in the list of

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the very few figures that, according to the opposition’s press, could succeed the duce. Renzo De Felice observes that the fact that Rocco was defined by some as a ‘technician’ and by others as a ‘conservative’ implied no contradiction. In reality, it is quite significant of the position Rocco occupied within the fascist restricted elite and allows us to understand its actual centrality: from the 1910s on Rocco had set to conquer and politically represent what he called the ‘grey zone’ between proletarians and the higher bourgeoisie, of whom a substantial proportion would eventually identify themselves with the Conservative Party.3 Now, facing the more radical branch of fascism, the mass forming this ‘grey zone’ longed for the maintenance of much of that conservative tradition. And Rocco appeared to be the right man to guarantee, through a well-settled compromise, a certain degree of continuity, apparent or real, with that tradition. Again, for Mussolini he constituted an invaluable help in the fascist conquest of the state, since he could favour the conquest to the regime of both the bureaucrats and of that ‘grey zone’ he spoke of. At the same time, Rocco served his political strategy of neutralizing the radical bases of the fascist movement, thus avoiding the formation of a competing fascist elite outside the state apparatus. Only a few months after Alfredo Rocco’s appointment as Minister of Justice, Mussolini declared to the Chamber of Deputies that to him ‘is due most of the legislative development of the revolution’.4 From a juridical point of view, the years 1925 and 1926 constituted, in the words of the guardasigilli, the decisive stage in the transformation of the state. On 3 January 1925 the parliamentary sessions were suspended upon Mussolini’s commitment to giving a new electoral law to the country. Such law was indeed the logical consequence of this political event: according to Rocco, the parliamentary system had ceased functioning since the electoral principle of proportional representation was adopted. In his view, this principle favoured coalition governments formed by diverse party minorities, leading to the instability and the consequent inefficiency he diagnosed as constituting the major evils of Italy. This state of affairs was to be overcome through a return to the system of majority representation, which was overtly intent upon favouring the control of Parliament by the executive power, thus dismantling the still existing resistance to the fascist government. It was in this political climate that the first few proposals of a legal reform at the service of the transformation of the regime were presented, discussed and approved in the Chamber of Deputies. One of them – the bill on the ‘reordering of the discipline of press’ (riordinamento della disciplina della stampa) – aimed at enabling a more efficient political control of the press. A further three were personally authored by Rocco, one of them comprising the delegation to the government of the faculty of reforming the penal code, the code of penal procedure, the laws of judiciary ordering and public security (pubblica sicurezza), and that of modifying the civil code. Another one of these bills established new

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measures against secret societies, with the freemasons as its main target.5 And yet another bill allowed the dismissal of all public officials who, inside or outside their offices, gave no guarantees as to their trustworthiness or strayed away from the political directives of the government.6 In early November 1925, some newspapers announced the discovery and repression of a conspiracy against Mussolini’s life, plotted by a former socialist deputy, Tito Zaniboni, and a military of high rank, Luigi Capello. The announcement was followed by harder repressive measures, together with the passing of laws against political opposition and the concentration of power in the government. A new law was enacted to establish the revocation of citizenship in the cases of political exiles (legge sui fuorosciti). Additionally, new legislation extended the attributions and faculties of the executive power (legge sulle atribuzione e prerogative del capo del Governo Primo Ministro Segretario di Stato), and gave the government the competency to promulgate juridical norms (legge sulla facoltà del potere esecutivo di emanare norme giuridiche). The law was to reshape the foundations of the exercise of political power, and again the practicalities of legal design had been entrusted to Alfredo Rocco. The acceleration and completion of the legislative process started in the early days of that year was equally important. In reality, although approved in May and June by the Chamber of Deputies, the projects mentioned about the regulation of the press, the reform of codes and of the judiciary career, on secret societies, and on the political discipline of bureaucracy, encountered resistance in the Senate. However, after the Zaniboni conspiracy they were approved with little discussion.7 By the end of January 1926, the juridical building of the fascist dictatorship was close to completion. During that year, and following three failed attempts on Mussolini’s life, the fascist elite had consolidated its encroachment upon the state. One of the means deployed by the fascists to do just this was the creation of a political court – the Tribunale speciale per la diffesa dello Stato. The Provvedimenti per la difesa dello Stato of 25 November 1926, once again carrying the signature of the guardasigilli, created this political tribunal and established its specific jurisdiction and a peculiar system of penalties. This bill made any attempt on the life or personal freedom of the king or the regent, the queen, the crown prince and the prime minister, and a series of crimes established by the penal code, punishable by death.8 By the same token, all individuals belonging to illegal parties, associations or organizations became punishable with confinement up to ten years and with the perpetual interdiction of exercising public functions. The propaganda of forbidden doctrines also entered the jurisdiction of the Special Court; just as did the divulgation, in foreign countries, of data on the internal conditions of the state, considered to be false, exaggerated or biased, or with the aim of harming the prestige and the interests of the nation. For this latter case, the Provvedimenti established confinement of up to fifteen years, a

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sentence eventually accompanied by the perpetual interdiction of exercising public functions, the loss of citizenship and the confiscation of property. The Special Tribunal was to be based on both the army and the fascist militia. Presided over by a high rank military, or by a high rank official of the Volunteer Militia for National Security (Milizia volontaria per la sicurezza nazionale), it was constituted of five judges, chosen from within the Volunteer Militia, and a speaker from the officialdom of the military jurisdiction. Set as an exceptional court with a limited duration of five years, the Special Tribunal could be convoked by the Minister of War when and where ‘necessity’ required. It was the responsibility of the Minister of War to determine its concrete composition, command and localization. In terms of procedure, the Special Tribunal followed the wartime norms of the Military Penal Code, all the faculties therein accorded to the chief-in-command being conferred also to the Minister of War. Lastly, its verdicts were not susceptible to appeal or any other means of impugnation. They could only be re-appreciated by the Special Tribunal itself.9 During the same year, 1926, Alfredo Rocco was again called to make a decisive contribution to the building of the fascist regime, this time through the passing of corporate laws, integrating trade unions and patronage associations into state-controlled corporations. The bulk of his legislative working would finish two years later, with the constitutional legalization of the Grand Council – a party organ working in the shadow of the government – and the making of a new electoral law. Attributing the faculty of designating the deputies to the Grand Council, this law completed the process of juridification of the fascist takeover of the state.10 The full normalization of the regime came with the resolution of the dispute between the government and the papacy on the political statute of the Papal states and the Vatican. Rocco was a crucial mediator in the negotiations between the fascist government and the Vatican, eventually leading to the Lateran Pacts, in 1929, crucial in the conquest of Catholics to the cause of the fascist regime.11 Criminal codification was part the fascist strategy of endowing the state with law-designed institutions, instrumental for the repression of threats to public order and, at the same time, capable of guaranteeing the allegiance of liberal elites and the middle class to the regime. Yet, this strategic motive is inseparable from properly ideological themes. Thus when, in the beginning of 1930, a German student addressed Mussolini’s Minister of Justice, Alfredo Rocco, asking bibliographical advice for a doctoral thesis on the relations between the reform of criminal law and the fascist doctrine of the state, the answer, promptly given, was that, in absence of a specific bibliography on the subject, the student should turn to the ministerial report that accompanied the definitive project of the penal code approved in 1930. In addition, it was advised he should look at a few general works on fascism, amongst which Rocco’s own La trasformazione

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dello Stato featured prominently alongside Mussolini’s Scriti e discorsi. Thereby, Rocco acknowledged the politico-ideological stand of the code and implicitly declared himself the main link between fascist ideology and the penal reform.12 Though much of the actual code has been considered the result of the work of his brother, Arturo Rocco,13 its epithet as the Rocco Code has been used in reference to the guardasigilli della rivoluzione, as Alfredo Rocco was sometimes called, and consecrated Rocco’s perception of his own importance in the making of the text. Eventually, such an epithet came to transmit the idea that Mussolini’s minister had himself authored the code. And, in fact, even before its enforcement, the idea of Alfredo Rocco’s authorship following inspiration from Mussolini was repeated, almost ritually, by many of the persons consulted in the process of its elaboration. While the code reflects the work of many individuals and was the result of compromises, both at the level of its great underlying principles and at that of actual norms, there is little doubt that Alfredo Rocco played a major role in its making. He was indeed the main promoter of the penal code and a fundamental pivot between the fascist ideology and the field, described as technical, of penal law. For Rocco, the fascist seizure of power was to be carried out mainly through law reform. In the introduction to La trasformazione dello Stato, Rocco dwelt extensively on the relations between fascism and his own juridical working. This relationship was developed mostly through the polarity revolution/ conservation, which affected a central concept of Rocco’s coinage, that of ‘conservative revolution’. As Jean-Pierre Faye rightly argued of this concept, it was the term ‘revolution’ that was the most problematic and, therefore, demanded the bulk of Rocco’s argumentative efforts. Alluding to the initial dissent on the concept of ‘fascist revolution’, he justified its use with a retrospective assessment of the achievements of fascism. In his view, fascism should be called a ‘revolution’ in that it had radically changed the institutional order and the notion of State. Additionally, fascism had replaced the old ruling class and heralded a profound transformation in the ‘psychology of the masses’. Henceforth, the concept of ‘revolution’ should be divested from all connotations of violence, insurrection and popular turbulence with which it was commonly associated.14 This implied that the revolutionary nature of fascism was not be sought in the fascist movement itself, nor in the historical events leading to Mussolini’s seizure of power, inasmuch as the March on Rome symbolized the revolutionary rupture with the old order, but in the process of construction of the fascist state. When applying the term to those inaugural events, Rocco made very clear that ‘the revolution is not an end in itself but a necessary means towards the creation of a new order’. On these grounds he distinguished the ‘fascist revolution’ from the Bolshevik one: whereas in the latter a revolutionary impulse gave rise to something different from its ‘motives’, fascism was a revolution that realized

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its own ideology. In contrast with the Russian Revolution, fascism could thus be called a ‘revolution’ only ex post.15 At this point, it is important to inquire into the precise contents of this ideology, which Rocco explicitly acknowledged as being inconsistent to serve as a historical motor, but which, nevertheless, was thought to be there from the start. What was the secret of this revolution that revealed its nature only in the moment of fading out into a regime? The key to answer these questions may be found in Rocco’s introduction to La Trasformazione dello Stato, namely in his observations on the ‘intimate revolutionary virtue’ of fascism: I place in the novel juridical and moral arrangement created by fascism its intimate revolutionary virtue. In fact, a revolution does not deserve such a name if it does not create a new system of public law and a new spirit of the people.16

In other words, fascism was first and above all a juridical transformation which went hand in hand with a similar change in the mentality of the ‘people’. The genus of the fascist revolution had a juridical nature that consisted in the formation of a new order, defined by the public law, and a collective conscience. To be sure, for Rocco, the concept of ‘juridical’, as applied to pinpoint the ‘essence of fascism’, focused entirely on the issue of the state. In effect, he talked little of fascism and much of the fascist state. The fascist State is indeed that which realizes, in its maximum potency and cohesion, the juridical organization of the society. A society, in the concept of Fascism, is not a chaotic ensemble of individuals, but an organism, with its own life and its own ends, which transcend those of individuals, and with its own spiritual and historical value.17

According to this view, fascism was a highly developed form of social organicity realized under the auspices of a state acting as a ‘principle of order’, that is, a pure organizing force. The fascist state was therefore the sole ‘truly social’ state, and this independently of the concrete historical societies it organized. A city, a nation or an empire could, therefore, embody the fascist state. In this line of thought, the predicate ‘national’, as applied to the Italy of his time, referring to a specific historical situation, did not capture the essence of fascism. The fascist state – he continued – was a general and abstract condition that was verified ‘every time a society organizes strongly as a state for the realization of the perpetual ends of the species’.18 In this respect, Paolo Ungari has noticed how ‘the logical and sentimental core’ of Rocco’s theory of the fascist state, relying on a kind of a-historical formulation, had the nature of a truly juridical myth.19 It was through the lenses of such myth that Rocco actually read the history of Italy as an endless fight between order and disorder. However, and despite all this emphasis on the juridical nature of the fascist state, Rocco made clear that this was not to be viewed as a pure juridical form.

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According to him, such a concept had actually been the great mistake of liberalism. In sharp contrast with the liberal ideology, the fascist state injected a ‘content’, expressed in the notion of ‘social organicity’ and in its juridical forms: ‘The fascist state has its moral, its religion, its political mission in the world, its function of social justice, and, lastly, its economic programme.’20 This concept of state as both a force of order and the vehicle of a moral order was, at the time, theorized as the ‘ethical state’ by personalities such as Giovanni Gentile and Alfredo Rocco himself. Before analysing in more depth the consequences of the fascist ‘ethical state’ in the criminal domain, let us turn to the stated notion of a ‘political mission in the world’. As we will see next, this is closely related to the international promotion of Italian repressive institutions and their eventually being recognized as a standard for state reform.

Criminology as a Political Idiom The social, economic and political situation in the period that preceded and accompanied the criminal policy of fascists has been analysed at great length in Italian historiography. It would thus be somewhat redundant to approach these widely known topics once again. It is, however, important to note that, at least since the emergence of criminal anthropology, significant gaps have existed between the statistical knowledge of criminality and the political discourse and widespread representations regarding the criminal phenomena. While statistics showed that, in general, crime rates dropped since unification, anxiety regarding crime grew to a level that, as the turn of the century approached, has been described as moral panic.21 This contrast is particularly striking in what regards the case of blood crimes, which, even though decreasing steadily since the 1880s, coexisted with the vulgarization of the image of the much feared ‘born criminal’.22 To a large extent, the same applies to the anxiety caused by juvenile delinquency, mostly in the 1910s and 1920s: the numbers of convictions of minors point to a decrease of juvenile delinquency after the turn of the century and, in the 1920s, after its rise immediately after the war, crime rates among minors still remained far below those of the 1890s. However, the fear of immoral, deviant and criminal children became increasingly present in political and scientific discourses.23 These contrasts must be explained by the combined effect of social and economic transformations, and the social anxieties that accompanied them, as well as by the discursive elaborations of both politicians and criminologists. But yet another determinant factor must be considered: penal and security policies themselves. This aspect is approached summarily by Mary Gibson apropos of the misperceptions generated by the fluctuation and changing criteria of statistical registration of crimes. As an example, the sharp rise in criminality verified in the 1890s can be accounted for, at least partially, on the basis of improved statistical

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notations; and the moral panic regarding juvenile crime in the 1910s may have been fuelled by a lag in the publication of statistics regarding the late years of the nineteenth century.24 Another dimension of the effect of criminal policies on the perception of criminality resides, of course, in the actual categorization of crimes and contraventions. The larger number of incriminations implemented by the penal and police reform of 1889, when compared to the pre-existing legal order, is itself a powerful factor in explaining the higher crime rates of the 1890s.25 In this sense, since official statistics reflected legal categories already, the political definition of crimes preceded the apprehension of social phenomena. When fascists came to power, the necessity of endowing the state with more extensive legislative means to fight criminality was a topic of political discourse of considerable historical precedent. Rocco could, therefore, present the reform of the penal code, together with other penal measures, as something of great urgency without this being read as political opportunism. These reforms were welcomed, instead, as an efficient response of the government to the then urgent problems of social disorder. After the sharp rise of criminality immediately after the war, statistics indicate a slight decrease in the number of crimes in the few years that followed the March on Rome. But only in the 1930s would the crime rates lower in a significant way.26 However, without ever referring to concrete statistics, Alfredo Rocco spoke, quite imprecisely, of a significant rise of crime rates in the postwar years and claimed that the rise to power of the fascists was accompanied by a decrease in all types of crime, particularly blood crimes.27 He attributed this to a variety of causes – social, economic, moral and political – that, combined in a complex way, fostered criminality.28 In this field, the only thing he was sure of was that the social conditions created by the war had been a major catalyst for crime. This was particularly clear in the case of minor delinquents, whose criminal activities had been fuelled by the distance of family and a largescale abandonment of school, together with the poor economic conditions of post-war times. The actual nature of juvenile delinquency had changed, Rocco argued. Instead of being constituted of small crimes against property, juvenile delinquency was increasingly characterized by violent, and more cunning and sophisticated, forms of patrimonial crimes. Blood crimes were also becoming more frequent. In both cases, the characteristic note was no more an ‘occasional nature’, but ‘habit’ and ‘professionalism’.29 For Alfredo Rocco, despite the decrease in all types of crime, crime rates were still much above what he considered admissible in an orderly society.30 However, the fulcrum of the question of order resided elsewhere: the immediate post-war years had shed light on the state’s incapacity to fight delinquency with ‘pure repressive and penal’ measures. And this applied, with particular specificity, to the ‘serious and preoccupying phenomena of habitual delinquency, juvenile delinquency and that carried out by dangerous, mentally-ill persons’.31

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In other words, it was not so much the quantitative aspects regarding the evolution of crime that were cause for concern, as the new forms in which it manifested, together with the lack of means to fight these relatively new ‘criminal types’. This was evident, for instance, in the treatment of the problem of recidivism as a matter regarding the type of ‘habitual delinquents’. Though Rocco advocated a hardening of penal measures against recidivists, he clarified that, in reality, what had augmented, and therefore what he strongly wanted to fight, was not so much recidivism as such but ‘habitual delinquency’. He acknowledged the difficulty of establishing a clear-cut concept of ‘habitual delinquent’; however, he placed the criminal rather than her or his acts at the centre of penal discourse.32 Together with this category, the other two types that Rocco pointed out as constituting the new forms of the criminal phenomenon and thus, the main motives of concern – ‘juvenile delinquents’ and the ‘dangerous mad delinquents’ – materialized a concept of ‘potential danger’ that, more than repression, called for preventive measures. No wonder, then, that in what concerned the criminal policy, the priority lay in the development of what the guardasigilli called the ‘measures of crime prevention’.33 Within these, police forces were to play a major part, and the promulgation of a new set of police regulations was indeed the first significant political act within the criminal field. In fact, from the onset of the fascist regime, police forces – so-called prefetti – were to occupy a central position within the state apparatus. Their important role as keepers of social order and state institutions, mainly in the peripheral zones of the country, bestowed on them a political status they had never enjoyed before. Although this new status was formerly enacted by the bills of Public Security (1926 and 1931), it is best testified by two circular letters in which Mussolini addressed himself to the prefetti. In one of them, dated 12 November 1926, the role of the prefetti is said to have ceased to be limited to the mere supplemental role of taking measures in cases of urgency – which, in normal circumstances, were ascribed to other organs of the justice system – and are now endowed with ‘a functional and organic competence destined to ensure, through ready action, the satisfaction of public needs related with the protection of order and security’. As Mussolini immediately clarified, the concept of ‘protection of order’ included the ‘objective national arrangements, economic and social, constituted within the State’ (ordinamenti obbiettivi nazionali, economici e sociali, costituiti nello Stato); whereas, for that of ‘protection of security’ he meant ‘the defence of citizens and their goods’.34 After thus establishing the general directives that were to reshape the major features of the figure of the prefetto, Mussolini authored a second circular, dated 5 January 1927, with the declared objective of ruling the daily activity of the prefetti in the provinces, during politically regular times. He started by solemnly reaffirming that the prefetto was the highest representative of state authority in

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the provincial districts, as well as the direct representative of central government. This was aimed specifically at the Fascist Party, for, as the duce immediately clarified, after the initial stages of the ‘revolution’, the party’s provincial representatives were to submit themselves to the authority of the prefetti in order to avoid the fragmentation of power. Conversely, ‘the prefetto is to be strongly engaged in the defence of the regime against all those who attempt to undermine it or to weaken it’.35 Backed by the state laws, the prefetti were given the important mission of securing the fascist regime. This was to be combined with the maintenance of order against the remainders of squadrismo, the fascist paramilitary squads active between 1918 and 1924 and known as the Blackshirts, which, in 1927, Mussolini considered anachronistic. Thus, the repression of what was left of the movement that took Mussolini to power entered a domain of issues designated as ‘public order’. Essentially defined as a police matter in its most immediate aspects, from that moment ‘public order’ was to be pursued through prevention rather than through repression: ‘In any case, the fascist prefetto prevents through his vigilant action; he prevents by attacking all kinds of causes susceptible to trouble public order. A timely prevention obviates a costly and late repression’.36 A basic condition of ‘public order’ was that the order which Mussolini named the ‘moral order’ (l’ordine morale) remained secure. Guaranteed through the functions of administration and assistance of the prefetti, the maintenance of ‘moral order’ depended on the creation of consensus among citizens.37 It included, namely, the good administration of public funds, the depuration of bureaucracy, the protection of the veterans of war, the organization of local cultural events and the ‘moral assistance’ of those who, among the poorest, were considered deserving, with a particular focus on youths. The figure of the prefetto was thus called to fulfil a number of functions that were central to the regime – political, administrative and moral – which, in turn, were to be well coordinated with that of the preservation of public order. Regarding the overall criminal policy, the political measures and discursive strategies more closely linked to the construction of the fascist state thus tended to privilege prevention rather than repression. Nevertheless, at least in theory, the institutions destined to the execution of penal sentences were not disregarded. Alfredo Rocco and the commentators of the penal system close to the regime emphasized the improvements brought by the government since the fascist take-over of power. In this domain, one of the first measures taken by Mussolini’s government was the transfer of prison administration to the domain of the Ministry of Justice, a task hitherto ascribed to the Ministry of Internal Affairs. Besides this, according to the guardasigilli, the last few years had seen a general improvement of prison administration, particularly evident in the separation of minors and ‘mad delinquents’ from the rest of the prison population.

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In addition, a special institution of confinement for ‘instinctive delinquents’, located in Santo Stefano, was under construction. In this new prison, which was to tackle the problem of ‘dangerous criminals’, many of them ‘absolutely incorrigible’, new forms of surveillance were to be enforced.38 In 1925, Luigi Rusticucci, an observer of the penal system close to the regime, stated that the reform of judiciary districts, together with local needs, effected the suppression of a significant number of prisons. Additionally, in view of the abolition of cellular confinement, an important sum of 150 million lire had been ascribed to the transformation of penitentiaries. According to him, Italian prisons had improved significantly, no longer being places of repression but ‘real clinics’ where delinquency was studied in the light of ‘science’.39 And, according to the official sources, in the period of the criminal codification, corresponding to the second half of the 1920s, the budget for the new penal institutions and the reform of a few existent ones saw an extraordinary increase. In these years, new prisons were constructed in Bari, Caltanisseta and Avezzano, and new reformatories for young delinquents were set up in Airola and Cagliari. Larger budgetary sums were made available for the penal asylum of Aversa, the penal sanatorium of Montesarchio, the prisons of Palermo, the correction house of Turin, the penal hospital for consumptive persons of Pianosa and the penitentiary of Milan. At the same time, the salaries of prison staff were also raised. Signalling the modernizing thrust of the government in this domain, in 1928 the old Direzione Generale delle Carceri (Directorate General of Prisons) was changed into the Direzione Generale degli Istituti di prevenzione e di pena (Directorate General of the Institutions of Prevention and Punishment).40 According to Rusticucci, by 1925 the only valid critique of the penal system was that there were too many liberties in prisons and that punishment was not sufficiently afflictive.41 However, this was an issue belonging to the realm of penal codification and as such, was soon to be revised. The above justifications for the reform of penal and police institutions carried out in the early 1920s show that criminal positivism and the language of social defence provided the leading politicians of the fascist regime with a new semantics of social disorder. Concepts such as the ‘born criminal’, the ‘habitual offender’, the ‘instinctive delinquent’ and the potentially dangerous juvenile delinquent were not unanimously accepted among penal professionals. However, they were integrated into an interpretative frame according to which politicians and institutional reformers approached the issue of social disorder. Evolving at least since the 1870s, with fascism they eventually came to the core of a political theory of the state. Indeed, to a large extent, fascism was presented as a pure embodiment of the principle of order. This had several implications. First, it implied an ethics of strength, obtained by the entire subordination of individual interests to

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the collective ‘derivation’ of the notion of the citizen from the state. Politically, Rocco added, such a concept was exactly the opposite of the ‘individualistic ideology’ of the French Revolution.42 Perfectly combining form and content, the fascist state appeared to be best defined through the idea of synthesis, which was conveyed through the idea of ‘encompassing and surmounting contradictions’. In this sense, the concept of ‘synthesis’ replicated, first, in the ways fascism was conceptually related to the other modern forms of political organization, namely democracy and socialism, and also in the historical process that moved from liberalism to fascism: ‘the fascist state contains and supersedes Liberalism: it contains it because it uses liberty when it is useful; it supersedes it, because it hinders liberty when it is harmful’. Secondly, the idea of synthesis reverberated in a concept to which were attributed both a political and a juridical status. Contrarily to liberalism, ‘the fascist state is truly sovereign, in the sense that it dominates all existing forces in the country and subjects them to its discipline’.43 Here, a synthesis was made between the juridical and political concepts of the state as present in the classic juridical school of public law (i.e. that developed in the liberal period). According to Rocco, this current of juridical theory was pregnant with an unsolved contradiction: the notion that, in political terms, sovereignty resided in the people, whereas, in its juridical form, sovereignty was an attribute of the state. By ascribing sovereignty entirely to the state, thus assembling its juridical and political sides, a satisfying synthesis could be achieved between the political and juridical dimensions of the concept of sovereignty. And such a concept would, in turn, prepare for the emergence of a more harmonious political form. This conflation between the political and the juridical elements of the concept of sovereignty can be traced, in Rocco’s theoretical work, at least in three other variants, all clearly formulated in the important Perugia speech of 1928. One of them lay in the fact of the whole issue of political regime being read through juridical lenses. Distinguishing between liberalism, democracy, socialism and fascism, Rocco defined the first as the regime in which the key issue was the individual right to freedom; the second as that in which the main question was the right to govern the public domain; and the third as that in which the central problem was the right to economic justice. Despite these differences, for Rocco, the three regimes had in common the crucial fact of being founded upon the rights of individuals and/or classes, thus affecting the prevalence of what he called ‘the interests of singular entities’. In contrast, the fascist state encapsulated the interests of the collective, which were to prevail, without any concession, over those of particular entities, whether individuals, groups or classes.44 A second variant of this conceptual conflation can be found in his use of the concepts of ‘order’ and ‘disorder’, as the central hermeneutical category of political analysis, and in that of ‘State justice’ (giustizia di Stato) as the fulcrum of his political theory. Here, Rocco resorted to the arguments developed in his

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nationalist phase, restoring his view on social conflict and class struggle as a problem of individual self-defence irretrievably leading to disorder and anarchy. As Paolo Ungari argues, in Rocco’s juridical thought, class struggle was depicted as a ‘public offense’ that the state should harness within the frame of juridical institutions. In this light, it was clear to him that fascism had been called to overcome ‘class self-defence’ through what he named giustizia di Stato.45 From this vantage point, the historical period that preceded fascism was read as ‘anarchy’, while the ‘forces of order’, which nevertheless persisted throughout this period, gained a juridical value that was now to be fully developed by the fascist state. This third variation on the theme of sovereignty, supposedly based on the synthesis of its formerly separated political and juridical elements, mainly regarded the Catholic Church. In reality, Rocco considered that, throughout the centuries of anarchy that marked Italy’s past, the Church had been the sole element guaranteeing order and unity in society. Later on, in the First Italian Juridical Congress (1932), Alfredo Rocco actually voiced the idea that the only ‘organization’ that, due to its truly ‘popular’ character, could be compared to the fascist state was the Catholic Church. To be sure, for Rocco, ‘popular’ was to be clearly distinguished from ‘liberal’ and ‘democratic’.46 The development of a fascist political theory from this concept of sovereignty implied, in reality, that the ‘fascist revolution’ was identified with the process of its own juridification, that is to say, the juridical articulation of the ‘principle of order’ historically carried by the state and the Church. In this light, the idea that the law was considered to be the main instrument of a revolution that promised to re-establish order becomes clear, and hence his central notion of fascism as a ‘conservative revolution’. In other words, the conditions for the maximal conservation of society were to emerge from legislative activity, an idea also phrased in terms of development of the ‘organic essence’ of society and empowerment of its organizing principle – the state. This had a simple practical consequence: in accordance with the superiority of its ends, the state should maintain a force superior to all other elements in society. As Rocco very plainly declared, all the new legislation thus aimed at adjusting the means – the state force – to the ends, which he named the ‘ethical content of the state’.47 This line of argumentation allowed Rocco to link his juridical reforms with the political acts that preceded them and, eventually, to legalize them. According to Rocco, in the course of history a process of ‘accumulation of forces’ had prepared the way for the juridical empowerment of the state. Therefore, even while the existing legal order did not comprehend the concrete forms in which the ‘accumulation of forces’ took place, they could be justified ex post as part of such process. In La trasformazione dello Stato, however, Rocco used this reasoning mostly to place his reforms in a functional relation with those carried out

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by the fascist government before the decisive 3 January 1925, the date of the suspension of parliamentary activity and the turning point towards dictatorship. On these grounds, Rocco considered that the legislative reforms of the first four years after the March on Rome – namely those regarding the education system, the institutions for the protection of maternity and infancy and the creation of the Balilla – effected the ‘internal transformation of the state’. Now, the ‘internal transformation of the state’, in which Rocco viewed the renewal of the ‘spirit and character’ of the nation, was to go hand in hand with the more technical reforms. These still belonged to the phase of ‘accumulation of forces’. Only after this process achieved a certain degree of development could the following phase of ‘formalization of the ends of the state’ begin. And this would be best accomplished through the juridical form that guaranteed the highest possible degree of systematicity and promised greater longevity – the code. According to Rocco, the codification of the ‘ends of the state’ was to be combined with the process, also considered essential for the ‘fascist revolution’, as he theorized it, of the ‘external transformation of the state’. This referred to the ensemble of legislative acts destined to restore the state sovereignty in its wholeness, by overcoming the restrictions, controls and the ‘multitude of singular interests’ that liberalism imposed upon it. This meant, specifically, the reinforcement of the executive power, which the guardasigilli viewed as the most efficient organ of political action and, therefore, the most genuine expression of the state. The electoral reform and, above all, the bill attributing to the government the faculty of creating juridical norms, together with that on the attributions and powers of the prime minister, aimed precisely at concentrating the bulk of political power in Mussolini’s hands, thus effecting what he named the ‘external transformation of the state’.48 In La trasformazione dello stato, Rocco presents the laws he designed in the view of that ‘transformation’, according to a criterion that is partly chronological, partly thematic. In reality, he seeks to render evident the four stages of the transformation of the state that he describes in the Introduction: the technical reform, the internal transformation of the state, the external formalization of the ends of the state and the external transformation of the state. Rocco articulated this scheme within a politico-juridical theory of the ‘fascist revolution’. This, in turn, was viewed as unfolding along the lines, respectively, of a primeval revolutionary impulse, a phase of ‘accumulation of forces’ and a final stage of full development of fascism, a historical process that he linked tightly with that of its juridification. If we cross these two planes regarding the construction of the state and that of the unfolding of the fascist revolution, we obtain a scheme that allows us to see clearly where Rocco placed the codification of criminal law and how this was related to its politico-juridical context (see Table 3.1).

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Table 3.1: Stages of the transformation of the state/fascist revolution according to Alfredo Rocco

1922–5

Technical reforms – De Stefani financial reform – Reform of the judiciary districts – Unification of the Cassazione Internal transformation of the state – Reform of the education system – Bills on maternity and infancy – Creation of the Balilla

Accumulation of forces

 Juridical formalization of the ends of the state Reform of codes – Penal code – Code of penal procedure – Bills on the judiciary organization – Modifications of the civil code

1925–7

Social reform – Bill on the juridical discipline of the work relations between collective agents – Bill on the new work discipline and creation of the corporative state Full development/ juridification of the External transformation of the state fascist revolution Laws of state defence – Bill on secret societies – Bill on political exiles – Bill on bureaucracy – Bill on state defence Constitutional reform – Bill on the faculty of the executive power of emanating juridical norms – Bill on the attributions and powers of the prime minister

Parallel to the process of the ‘external transformation of the state’, the codification of law followed chronologically, and also formalized, the ‘internal transformation of the state’. In effect, the new legal codes appear to lie in the same plane of the bills that created the corporative state, which Rocco regarded as fundamental for the construction of the fascist regime. From this, it followed that legal codes had the prominent function of synthesizing the ends of the fascist state. Whilst many other laws were viewed as mere instruments, codes were thought as a point of arrival – in Rocco’s own terms, they gave the fascist state the ‘concrete content’ that it lacked. His view on this was best summarized in the idea that through

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the civil and penal codes, the state affirmed itself as the guardian of morality and family order. In addition, through the civil and commercial codes, it protected private property and credit discipline; through the civil, penal and commercial codes, it defended the economic interests of the nation; with the penal code and that of penal procedure, it assured the defence of the society and the state. Finally, through the code of civil procedure, the state was supposed to formalize a new concept of justice administration. No longer serving private interests, for Rocco, criminal justice was now to be recast as the noblest domain of state life.49 We can thus argue that the criminal code was to occupy a symbolically prominent function in the fascist state, virtually that of a political constitution. At any rate, it set the state at the centre of a cosmic drama – the struggle between order and disorder – therefore giving it a proper mythical texture. In addition, Rocco’s report on the definitive text of this code suggests that criminal law had yet another function. In fact, in the closing paragraphs of the introductory part of this text, Rocco underlined that the new code also endowed the so-called ‘civil sanctions’ with new discipline. The logic of the reform was here to eliminate, in this sanction, all traces of private penalties that, according to the Minister of Justice, civil sanctions still had, and simultaneously extend them from a few offenses to virtually all crimes committed, since virtually every crime entailed moral damage that required direct compensation. In order to do just this, Rocco’s main concern had been to ensure that these sanctions could be effectively enforced through the appropriation by the state of the belongings of criminals and their restitution to their respective victims. He then concluded as follows: Thus, through the new discipline given not only to the penal issues specifically, but also to those regarding civil sanctions and administrative security measures, the new penal code that I submit to the Sovereign approval of Your Majesty signals a real and profound transformation of our penal law, which will be, from now on, proper criminal law, not only merely repressive, but at once repressive and preventive, and a criminal law not solely penal, but also civil and administrative.50

For Rocco it was thus a whole new paradigm of state coercion that was about to emerge, a change that could be worded as a transformation of a restricted penal law into a much more encompassing ‘criminal law’, through which the state would act as an orderly force. And the institutional expressions of this transformation were clearly defined, first, in the relation between the criminal and the victim, henceforth to be mediated exclusively by the state; and second, in a more intricate weaving of strictly penal norms with administrative and civil ones.

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The State as a Private Person Under Mussolini, this mythical construction of the state thus acquired a juridical formulation. The technical-juridical school of penal thought played a crucial role in this process. Let me briefly analyse this apparently paradoxical combination of juridical rationality and mythical thinking. Since the mid-nineteenth century in Europe the liberal notion of the law based on the social contract, and centred on the individual will, was questioned by new doctrines emphasizing the state as the source of juridical order. Reflecting the impact of Hegel’s philosophy, nations were viewed as the historical expression of the absolute Idea in motion, actualized through a dialectical movement gradually more enveloping in its syntheses. The real historical actors were to be found in national collectives rather than in individuals. Accordingly, historical consciousness was articulated by the kind of institution that corresponded most directly to nations – states themselves. Triumphing over the typical Kantian notion of individual consciousness as the site of all imperatives of morals and justice – which had predominated in the first half of the century – states were to be viewed as the true carriers of the normative order of societies.51 In Italy, the highly influential doctrinal elaborations of Francesco Carrara – the last major theoretician of the Italian Classical School – with his notion of the ‘absolute nature’ of the juridical order in general, and of penal law in particular, mediated the reception of Hegelian philosophy right up to the fascist period. In this line of thought, legal codes were presented as the perfect expression of a state reason that was inherently organic and in harmony with the nation. In Italy, a singular historical circumstance rendered this juridico-metaphysical fiction particularly useful: it provided a unifying discursive fiction and a lens through which a greatly disparate social reality could be normatively put together.52 It was in this context that, more specifically, the so-called German pandectistic entered in Italy in the late nineteenth century, an import that had an enormous impact in the penal field. Set up in the view of the formation of an entirely organic system of private law out of the Roman Justinian law (the Pandectas), the pandectistic movement was also closely linked to a state-based unifying political project – that of Bismarck Germany.53 Although generally described as a pure method, the pandectistic movement effected important displacements in the field. Mostly, it accentuated the tendency to turn juridical studies into a matter of scientific expertise and reinforced the ascendant of private law, viewed not only as the work of the lawmaker, and therefore a result of his political will, but also as a product of science. On this account, Cesare Salvi observes that, under the influence of the pandectistic, the relation of the jurist with the legal text was inverted: while hitherto the latter had legitimized the exegetic function of the

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former, from now on it was the scientific work of the jurist that, by dispensing rationality onto the juridical body, legitimized the normative force of the code.54 Although initially linked to private law, the pandectistic, contemporary to the reshaping of the constitutional and administrative law into a juridical science, also provided the conceptual bases to public law.55 Eventually the paradigm of a juridical science thus constituted prevailed over a concept of law as praxis developed by the courts, by the administration or even as a politico-legislative technique of the Parliament. In Italy, the translation of the pandectistic movement into the criminal field was largely undertaken by the above-mentioned Arturo Rocco, brother of Alfredo Rocco, and also a leading jurist and law professor. An evident sign of this lies in the emphasis that Rocco gave to the private law as a source of concepts to be used in the criminal field. In 1910, in what is generally recognized as the founding text of the technical-juridical school of legal thought in Italy – Il problema e il metodo della scienza del diritto penale – Arturo Rocco presented private law and, secondarily, administrative and procedural law as the models for a reshaping of the ‘science of the penal law’.56 Considering that the then existing state of the art showed serious scientific imperfections, Arturo Rocco emphasized the urgency of articulating the concept of ‘juridical relation’ in the frame of the penal law. Hitherto absent from the latter, such concept was to be sought in the above-mentioned legal fields.57 As a major implication of this concept, punishment was to become a procedure involving two parts, both endowed with juridical personality: the person-state and the criminal. Well rooted in the tradition of public law (giuspubblicistica) which had been led by Vittorio Emanuele Orlando since the late nineteenth century, the concept of a ‘state personality’ resulted from a complex metaphoric evolution in which biologizing, organic motives intersected with spiritual and ethical ones; this compound emerged as an anthropomorphic vision of the state even before the fascist period. Now this notion was given an extensive doctrinal development by Arturo Rocco through the theory of the ‘penal juridical relation’ (rapporto giuridico penale).58 As Ferri rightly observed, the privatistic concept of the contract was now to inform the novel theory and procedures of punishment. Indeed, this contract refers to the juridical relation between the state and the criminal and must be distinguished from the liberal notion of a contract between the citizens, delegating to the state a part of their freedom as a counterpart of the benefits of living in society. The second main implication of applying the pandectistic to the criminal domain regarded the concept itself of the practice of penal law: its study by jurists and enforcement by courts had its specific object in the positive penal law of the state, or, in other words, in the normative system that actually exists in the state. In this context, that which had formed the core of the penal question since the Enlightenment, namely the issue of the fundament of the state to punish,

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was considered exhausted and deprived of practical importance. The systematic articulation of the concept of ‘state personality’ now emerged as the main pillar of the reformed discipline of penal law, which allowed the rationalizing of the the penal relations between state and citizen, the state and the accused and the state and the offended person.59 Indeed, instead of the classical concept of penal law, solely structured upon notions of crime and punishment, Arturo Rocco defended its reconstruction with the ‘penal relationship’ as the main organizing motive. Juridical technique, conceived as a means of effecting such a rationalization and eradicating all impressions of arbitrariness in the penal law, became crucial in this mythical articulation. In addition, by identifying the fundaments of the right to punish with the state ratio itself, and with its main operative concept being that of the ‘personality of the state’, the neo-classical school opened the penal domain to politics and to science as no doctrine had ever done before. The new penal legislation also fitted well with the key fascist idea of a ‘conservative revolution’. Because it echoed tradition and, at the same time, was well adapted to the new social and political conditions, in Alfredo Rocco’s view the criminal code was the highest expression of fascism. Therefore, the code was ‘politically revolutionary’, although the ‘revolution’ in which it was rooted only aimed to enforce an already existing order, one with deep-seated roots in the national juridical tradition. At the same time, this discourse allowed the idea of an overall juridical continuity to be sustained. As we will see next, such a discourse was a paramount legitimizing device within the juridical field, all the more important as real innovations were under way.

Making a Criminal Code The criminal code was elaborated through the expedient of legal delegation by the Parliament on the government. At the onset of the criminal codification process, Alfredo Rocco declared that only a minor and technical reform was at stake: only ‘simple touches’ (semplici ritocchi) and ‘prudent corrections’ (prudenti emendamenti) were demanded. Thus, he continued, ‘the whole system and the general physiognomy of the code will remain unchanged and the fundamental principles and characteristics of penal institutions will be left untouched’.60 Legal delegation in view of declaredly minor and technical reforms had been used before, namely in the fabric of the code of 1889. Yet, under fascism, rather than an exceptional recourse used to tackle the more technical problems, this expedient became the normal procedure of lawmaking. Indeed, the 1923–8 bracket allowed the legal transformation of the liberal state into the fascist state.61 In its concrete formulation, the Rocco Code was authored by a commission of jurists appointed by Mussolini and the Minister of Justice, and presided over by Arturo Rocco. Then described as being of a purely technical nature, it

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was implied that the function of the commission consisted in a mere unfolding of the great principles sketched by the Minister of Justice.62 The major corporations in the juridical field – magistrates, university professors and lawyers – were then consulted, and various actors from civil society were heard. The documentation regarding the making of the penal code features letters of private persons addressing Alfredo Rocco and Mussolini, almost always calling for a more severe repression of offenses against the family.63 At the end of the process, a parliamentary commission was also called to express a view on the project. Conveniently, this commission was presided over by senator Mariano d’Amelio.64 The codification process left behind an important pile of documents. Furthermore, a significant part of them were published in several volumes. Let us look briefly at the some crucial features of the various steps of codification. In Parliament, a specialized commission delivered a report stating that the two main problems were the defence of the rights of the state in the face of individuals and the construction of a system of protection of the new aspects of economic life.65 The clauses that were perceived as introducing novelties in the penal order were welcomed, in particular those regarding the principle of dangerousness, the security measures and the category of ‘habitual delinquents’. In the latter the commission viewed the juridical formulation of the concept of ‘born criminal’, so dear to the Italian criminal anthropology. Yet, overall the code would become a synthesis of the two schools of penal thought, classical and positivist. The result of a century-old elaboration and experience, and a product of the work of illustrious penologists, the definition of crimes was to be left untouched, save for the fulfilling of gaps corresponding to the small number of new incriminations. According to this commission, the issues belonging to the general part of the code, regulating sentences and other repressive measures and thus deemed to respond more directly to the challenges posed by the new problems of disorder, were more closely linked to the concrete historical situation.66 In the debate in the Senate a diversity of opinion emerged in a much clearer way. This was evident from the onset, in that the senatorial commission on the penal code declared that it had not reached a consensus as to the basic principles of the project, therefore presenting two reports instead of one. The difference of points of view took the form of a clash between the classical and positivist schools. Speaking on behalf of the latter, Raffaele Garofalo emphasized the idea of continuity between the future code and the penal code of 1889. For Garofalo this was a very positive aspect. The famous criminologist began his speech by praising Rocco for reforming the few issues that experience had shown to be in need of reform instead of making a new penal code. According to him, serious gaps would now be addressed, namely in the domains of juvenile delinquency, ‘mad criminals’, recidivism and ‘habitual delinquents’, but none of these touches affected the inherited penal order in a substantial way.67

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In contrast to this view, deputy Alfonso De Blasio, who stood for the classical school, vehemently rejected Rocco’s statement that the modifications proposed were just ‘corrections and touches’. On the contrary, behind these ‘corrections and touches’, he argued, there were basic questions that continued to divide the two penal schools sharply. And these amounted specifically to the fundaments of criminal responsibility, the forms and length of punishments and the extension given to the security measures. On these grounds De Blasio repeatedly denounced what he called the ‘pretended conciliation between the two schools’, which, in his opinion, only served the predominance of the security measures over the classical, repressive, penalties and favoured the search for the external causes of crimes to the detriment of the measuring of individual guilt, thus entailing a shift of focus from the ‘evilness’ (malvagità) of criminals toward their dangerousness.68 Other aspects deserving criticism were the treatment given to political offenses and the range of power ascribed to the judges. Indeed, he noted that the new penal legislation would accord the judges a ‘dangerous discretionary power’. On the same grounds, he criticized the desired individualization of punishments. Taken together, these measures would substitute the law by the judge and effect a return to the Old Regime.69 The discussion of these reports in the Senate focused almost exclusively on this issue of the continuity or discontinuity of the reform with the liberal penal order, a question reflected in the problem of the clash, or the conciliation, between the two schools. In response to De Blasio, Rocco acknowledged that, in matters of penal procedure, there were indeed issues of sharp divergence, namely the role and status of the prosecuting counsel. However, he argued, the dissent between the two commissions was more apparent than real and, at any rate, more theoretical than practical.70 He also recognized that the problem of the free will versus the determined will of criminals was an important issue upon which the entire system of sanctions depended. But then, ‘truth stays always in the middle’, and this idea encountered a tight institutional correspondence in the ‘double-track system’ (doppio binario): penal sentences and measures of security should be admitted as sanctions, the former remaining as the fundamental means of social defence. As to their respective functions, Rocco argued that penalties were basically intimidating. Addressed to all citizens in both the moment of the threat, solely by featuring in the penal code, and in that of their execution, penalties reinforced the will to respect the law through the instillation of fear. In contrast, security measures had an exclusively individual character and aimed mostly at defending society from ‘dangerous persons’.71 The speeches that followed continued to blur the differences between the two schools. Mariano D’Amelio further developed the thesis of their conciliation and Garofalo intervened again to pick up on the idea that what was not possible to solve in theory was about to be overcome by the practice.72

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After the parliamentary debate, a commission was formed to develop the ‘technical and political directives’ depicted by Alfredo Rocco. The eighteenmonth work of this commission eventually resulted in a first full draft of the penal code – Progetto preliminare di un nuovo codice penale – officially published in October 1927.73 According to Rocco, the making of a preliminary project was a methodological novelty in juridical codification. He called upon a restricted number of well-known Italian penologists to collaborate with him and guarantee a greater uniformity of supervision, rapidity and organicity. Mussolini himself is said to have intervened in the formation of this commission, closely supervising his minister’s appointments. In Rocco’s words, the ‘great authority’ of the commission resulted from the personal engagement of the duce.74 It was at this moment that Arturo Rocco was called to lead the technical commission.75 Assisted by his fellow professor of penal law, Edoardo Massari, Arturo Rocco was also in collaboration with a number of penologists highly placed in the ranks of the state: Antonio Gismondi (president of the Sezione della Corte d’Appello di Roma), Ugo Aloisi (counselor of the Corte d’Appello), Eugenio Jannitti and Alfredo Jannitti (substitute general prosecutors of the Corte d’Appello), judge Ruffo Mangini and Enrico Romano (substitute Attorney General)76. The lack of documentation regarding this commission means we are unable to assess the real impact of the work of each one of these penologists on the draft of the code project. Credited to have developed the directives imposed by Mussolini and by the Minister of Justice, Arturo Rocco is sometimes acknowledged as the material author of the code draft.77 After the publication of the preliminary project, a new commission was formed to examine it. Regarding the methodology of codification, Rocco clarified that while the phase of the preliminary project counted with a small number of collaborators working swiftly under one single direction, the stage leading to the definitive code should instead be marked by a lengthy and critical examination. The ministerial commission – as it was officially named – was thus substantially larger than its predecessor, incorporating members of the magistracy, high-rank scholars and advocates. The function of this ‘authoritative council of eminent men’, as Rocco put it, was only consultative. It was indeed clear that instead of a new project, the aim here was solely to revise the already existing code and the formulation of ‘suggestions’. Taking these into account, the government would then have the final word as to the definitive layout of the penal code.78 At the request of Alfredo Rocco, representatives of the academia, of the provincial courts (corti di appello or the sezione di corti d’apello) and corporations of advocates and prosecutors sent reports on the preliminary project to the Ministry of Justice. These texts were made available to the public in a systematized and abridged form, as they were published as part of the Lavori preparatori del

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Codice penale e del Codice di procedura penale (volume 3, four parts). In this publication, the opinions of these entities were divided in two parts, one treating the general part of the code, the other dedicated to the remaining parts, respectively, on offenses and sanctions, and on contraventions. Each of the articles on which an opinion was expressed deserved an individualized treatment, so that around each one of them the views of these entities were grouped and ordered according to their provenience: magistracy, universities and advocates. Thus filtered by official agents close to the executive power, in order to deliver a less biased picture of the views of these actors on the reform project, these reports should be compared with the original documentation collected in the state archive. In fact, when looking at this almost randomly piled documentation, we get a clear notion of the work of normalization carried out by state agents until its publication. Responding to a simple call to give an opinion on a lengthy penal code project, the many persons who sent letters interpreted their task in different ways. Some were grieved that they were unable to base their work upon a questionnaire or a report explaining the changes, many focused on the ‘novelties’ to declare their approval or draw a criticism, while others simply summarized the new project. Thus left unguided, the reports focused on a wider range of issues than those discussed in the commissions. Because of this, concrete incriminations were in these cases, much more than in other instances of the codification process, an object of analysis. This still unfiltered documentation thus acquires an important meaning as far as the views of professional corporations, representatives of civil society and private persons on the penal reform taken by the fascist government are concerned. To begin with the academia, when we browse the letters sent by university law professors, it becomes evident that the reform was perceived as one introducing a great many novelties. The idea most recurrently expressed is that there was a clear hardening of the repressive system, manifested mainly in the aggravation of penalties, in the introduction of new types of sanctions – the security measures – and in the re-establishment of capital punishment. Although the latter merited many criticisms, these texts are marked by an overall approval of the reform. Other aspects repeatedly mentioned were the wide discretionary powers attributed to judges, the abolition of permanent cellular confinement and the new types of crimes protecting religion, public morality and the good customs.79 The continuous or discontinuous character of the project with the inherited juridico-penal order was also a privileged parameter of analysis. Some scholars considered the project an immediate product of the fascist regime, one inspired by the ‘genius’ of Mussolini..80 Others, such as the representatives of the University of Macerata, saw the security measures as a scaling down of classical principles regarding moral responsibility and the triumph of the ‘sound’ positivist doctrine of the material responsibility of all persons independent of their

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personal responsibility.81 As elsewhere, the idea of a fundamental continuity marked much of these discourses, once again built upon the acknowledgement that, all in all, the basic classical tenets regarding moral responsibility had prevailed over the innovations.82 There were no starkly expressed disagreements with the general directives of the reform, save for a notable exception: an alleged ‘minority’ of the Faculty of Jurisprudence of the University of Sassari. Indeed, after a statement of approval focusing on the opportunity of a hardening of penalties and the widening of the powers of judges, its report reads that ‘the minority of the Faculty expresses its profound dissent from this trend, which appears to be based on an ideological conception of the power of the state, rather than on the practical necessities of criminal law’.83 This statement is significant for a number of reasons. First it indicates that, among jurists, and among law scholars in particular, there was no absolute consensus, as the official discourse had attempted to depict. The fact that this actual statement was suppressed from the published version of the opinions in the Lavori preparatori is a clear sign that some degree of textual manipulation contributed to the appearance of consensus. Most significant of all, however, is what such suppression shows us a contrario sensu: while in the University of Sassari it was possible to attach such a straightforward expression of dissent to an otherwise approving report, in the other cases only partial and dispersed criticisms were allowed to figure in the reports sent over to the Ministry of Justice, covered under an almost ritual, often sycophantic, statement of approval. We can at least wonder about the authenticity of these statements. At any rate, many criticisms were made. To focus only on the most recurrent ones, the idea that the norms regulating the criminal responsibility were too complicated, and therefore difficult to be applied in court, was repeatedly expressed. For some of the critics, the problem did not so much reside in the norms themselves as in the ‘mentalities’, which, formed within the classical tradition, would not be capable of adapting to the new way of conceiving the matter.84 Other points of disagreement were the ‘excessive hardening of penalties’, the ‘exaggerated development of the security measures’, the concept of ‘delinquent by tendency’ (delinquente per tendenza) and the re-establishment of the death penalty. Many professors, although they thought that the general lines of the reform were correct, were of the opinion that it had just gone too far in the way of repression. Interestingly enough, even the representatives of the positivist school – as reports signed by Ferri and by Eugenio Florian illustrate – criticized the institutionalization of concepts that had long been dear to positivists in these terms. For example, although in favour of the anthropological distinction of delinquents, Florian opposed the concept of delinquente per tendenza, in which he saw an avatar of the Lombrosian ‘born criminal’.85

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Advocates and prosecutors, many of them represented in fascist syndicates (as the Sindicato fascista dei procuratori dei distretti riuniti di Cagliari e Lanusei, the Sindicato fascista degli avvocati e procuratori di Catania, the Sindicato fascista forense di Pisa, etc.), often expressed a great enthusiasm for the code project. Many praised the ‘Italian character of the code’, sometimes quoting Rocco regarding its avant-garde status in the international circles of penologists.86 Linked to this theme was the suggestion that the code signalled a sort of moral re-foundation of the country. According to the representatives of the advocates of Trieste and Istria, who viewed in the code a ‘fundamental legislative act’ of the regime, the reform sanctioned the ‘profound revision of social and moral values that took place in the national consciousness’.87 In the same line of thought, those of Milan eulogized a code deemed as characteristic of a strong state and the creator of a new order.88 Others echoed this theme by explicitly referring to the fact that the war and the fascist revolution had brought about a new conception of the individual on the face of the state.89 This had not only hardened the ways whereby the state was to employ force for the sake of its self-defence, it had also affected the ‘national consciousness’.90 In turn, some magistrates, represented through the reports signed by the presidents of the provincial courts (corti di appello), addressed more or less severe criticisms, namely on the concept of ‘tendency delinquent’, as in the cases of the provincial courts of Florence, Rome and Naples, while others supported the innovation.91 However, the keynote marking the reports of the magistracy is undoubtedly, and eventually to a higher degree than in the case of the two other juridical corporations, of support and sheer eulogy. Technical perfection, organicity, the overcoming of the clash between the two schools of penal thought and the urgent reinforcement of the authority of state – all of these were among the achievements that magistrates viewed in the code project. Furthermore, this had been obtained without compromising the ‘ethico-juridical’ – that is, the ‘classical’ – concept of crime.92 In other words, the continuity of the juridical order had been conveniently ensured.

Definitions of Order The most characteristic aspect of the codification process was the opening of the penal discussion to the whole of society. Indeed, in the more advanced stage of codification, the government invited virtually all citizens to pronounce on the project and compiled the many letters sent by various types of actors within civil society.93 However, in contrast with the reports of the juridical corporations, these ‘observations’, as they were officially called, were not published. Among the entities that expressed opinions on the project we can find religious and moral associations,94 medical and eugenic societies,95 civic associations,96 cor-

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porative fascist associations,97 regional groups of citizens and single individuals. Amongst the latter group, very often addressing themselves directly to Benito Mussolini, we can find letters and writings of priests, doctors, lawyers, magistrates and anonymous citizens, men and women alike. These generally focused on very specific issues within the terrain of incriminations: offenses against the Catholic cult and against the family, doctrinal writings on the juridico-penal nature of venereal contagion and of homosexuality. Even though a few of these letters focused on political crimes, the vast majority of them dealt with issues of ‘morality’, generally demanding new incriminations or the aggravation of penalties for already existing crimes. Yet, more than their content, these letters are striking in what they reveal about efforts to emotionally mobilize the population for the cause of criminal repression. In view of this, the recurrence of the topic of the death penalty in these writings gains a particularly important meaning. Anonymous citizens encouraged the re-adoption of capital punishment, as in the case of a Sicilian woman demanding the gibbet for adulterous husbands and wives.98 However, some persons also took the opportunity to express their opposition to this penalty.99 This is what happened in the case of Luigi Lucchini, a pre-eminent professor of penal law belonging to the classical school, who, having been left outside the codification process, also took the opportunity to manifest his disagreement with regard to the restoration of this form of punishment.100 In a subsequent stage of the codification process, Rocco elaborated a second project of the penal code, which he called the ‘definitive project’ (progetto definitivo). It was on this text that an extended parliamentary commission worked. Composed of deputies and senators, this was also a purely consultative commission. Here, dissonant voices were heard, mainly that of De Blasio, once again criticizing what he considered to be the ‘unlimited powers’ conferred to the judges. And, again, his targets were the category of ‘tendency delinquents’ and the newly codified sanction of the security measures, where he viewed a serious rupture with the classical penal postulates.101 Eventually, De Blasio expressed his agreement with the adoption of the controversial security measures, shifting the fulcrum of his criticism to its administrative, rather than juridical, nature.102 Here the debate lost much of its practical poignancy and became more strictly doctrinal. A major underlying motif in the codification process derived from the idea that that which was at stake was the definition of the juridical goods indispensable to the social order that the state was therefore to protect. As we have seen in the previous chapter, the technical–juridical school of legal thought translated this concept from the domain of private law into that of criminal law. In many respects, the new method only developed a premise already contained in the Enlightenment projects of codification. Yet, this approach to the task of codification also created a space within which it became possible to articulate

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a moral agenda, the contents of which were often voiced by non-experts who pronounced their views on the matter of crimes and punishments. In this line of thought, the government welcomed, as we have seen, the opinions of private persons and professional and civic associations asking for the juridical protection of certain values with strong moral overtones. Indeed, Catholic militants, movements for the defence of morality, groups of citizens and private persons all concurred in the request of new incriminations. These inevitably focused the values of the Catholic cult, the family, sexual integrity, the moral and, in some cases, the ‘future of the race’ and political order, as opposed to what was commonly perceived as ‘anarchy’.103 The making of the Rocco Code actually testifies to the moral crusade characteristic of these years under the fascist regime. The opinion of members of civil society and penal actors whose opinions were compiled in the state archives indicate massive approval for the new incriminations. Sometimes these linked explicitly the idea of a reinforcement of the protection of family and public morals with the notion that criminal law protected the social values, translated into ‘juridical goods’, defining ‘order’. It was namely the case of the University of Genoa, which, through a vocabulary reminiscent of that of the technical–juridical school, voiced the opinion that the ‘love of the fatherland’ was well expressed in the Rocco Penal Code project precisely through the protection of the ‘goods’ of morality and family.104 This emphasis on morals was actually in accordance with the view that classical norms on personal responsibility ought to prevail over positivistic ones. In this sense, and in sharp contrast with the Ferri Project, the Assembly of Advocates of Milan viewed the penal code as an expression of the ‘moral consciousness of the nation’.105 Just as the protection of public morals and of family had encountered a coercive backing by way of the new incriminations, this moral elevation of Italians could not proceed without a clear reinstatement of the concept of individual moral responsibility for one’s acts. On account of these two factors, there was indeed some truth in the words of a citizen who, asking for the immediate imprisonment of sexual molesters caught in the act, declared that ‘today the law is [the same as] morals’ (oggi il Diritto è Morale!).106 This widening of the range of crimes into a domain hitherto considered as specific to morality did not occur without difficulties. In reality, some of the personalities consulted manifested their hesitation as to where the line between a crime and an immoral act should be traced. The University of Sassari, for example, approved the new crime of ‘violation of the duty to provide family care’ (violazione degli obblighi di assistenza famigliare) established by article 570 of the project; however, it expressed its concern as to a possible intrusion of the state in the private sphere of the family.107

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But despite these difficulties, codification had been carried out along the lines of codification as it emerged in the Enlightenment: the designation of the values, interests and institutions to protect, and their ranking in a symbolic hierarchy and their specification into clusters and species of ‘juridical goods’, the contravention of which then engendered certain sanctions. Incriminations thus carried a tension between their function of naming a wrong committed by an individual, or a group of individuals, that threatened society and an expressive dimension of the order that actually exists in the normal conditions of social life. This tension derived from the logic of the penal code itself in the context of the civilian tradition, which sets a negative, rather than positive, definition of order. Nevertheless, the idea of constructing a symbolic order through the penal code was significantly accentuated by the fascist lawmakers, though otherwise in accordance with Rocco’s doctrine of the penal code as an embodiment of the ‘ends of the State’.108 To be sure, this constituted one of the distinctive traits of the penal code vis-à-vis the bills on public security police, much more centred on the efficacy of repression than on the symbolic enunciation of the core values of society. In a way, public security was viewed as ‘juridical good’ per se, and as an important means to justify a wholly autonomous sanctioning system which, removed from the penal jurisdiction, could be developed almost entirely in consideration of efficacy. As to incriminations proper, they were designed on account of a double criterion of repressive efficacy and the symbolic expression of the social values as conceived by the fascists. Aside from the hierarchy of values mentioned above, this expressive function of the penal code was rendered clear through the concept of ‘state personality’, which undoubtedly offered a stronger representation of the state than the replaced formula of ‘state security’ ever did. This is all the more evident as crimes falling within this category entailed particularly harsh penalties, chief amongst them being capital punishment. Traditionally, the category of crimes against the state covered three distinct fields: the external dimension of state sovereignty, that is, its international authority and national autonomy; the state’s internal sovereignty, or the concrete institutional organization of political power; and the basic rights of citizens in their relationship with the state.109 In the civilian tradition, the Old Regime category of laesa maiestas (literally ‘injured majesty’) had been substituted by that of ‘security of the State’, which dispelled the despotic overtones associated with the former concept. Thereby, the countries adopting the Napoleonic Penal Code as their model also contrasted with the Anglo-Saxon and Germanic world in this regard, as the latter maintained the old category, close to that of laesa maiestas, of high treason.110 According to this line of thought, breaking with the liberal tradition of the nineteenth century, the notion of ‘state personality’ adopted by the fascist lawmaker restored the subjective connotation of laesa maiestas. Through this process of juridical

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personalization of the state, the criminal law as a right of mediation between individuals was then turned into a right of the state to self-defence reminiscent of the Old Regime.111 The most evident imprint of this concept on the Rocco Code was the extension and the centrality given to the category of ‘offenses against the personality of the state’. Additionally, and although the ideological stand manifested in the general hardening of penalties, this strong link between the death penalty with the attempts against the state personality depicted the fundamental asymmetry of forces between the state and single individuals. Lastly, the re-baptized category, developed in all its potential in the jurisdiction of the Special Tribunal for the Defence of the State, allowed for the connection of the latter with the penal system. In this case, the logic of naming wrongs and that of the symbolic expression of order reinforced one another. Yet the coordination of the two ratios underlying incriminations was not always so harmonious. A good example of this is the debate evolved around the criminalization of homosexuality. The detailed analysis of Lorenzo Benadusi can be used here to illustrate this point. Indeed, after the Zanardelli Code decriminalized homosexuality for the whole of the Italian territory, the penal code project of 1927 included it in the list of offenses against sexual honour. This restarted an old-century debate on the legitimacy and opportunity of this incrimination which, in the civilian tradition, had been generally solved following an abolitionist orientation. To be sure, this did not testify to any particularly more positive attitude towards homosexuality, revealing instead a different strategy of repression. In practice, coinciding with the countries where the Catholic Church was strongest, abolition meant the deferral of the policing of homosexual acts to the jurisdiction of the clergy in the modern period, that is to say, to the terrain of morals and private life.112 This regime of ‘repressive tolerance’ relied on the liberal basic dichotomy between public versus private.113 As far as the state was concerned, and notwithstanding an indirect penal and police repression, the strategy that followed was to leave these ‘unspeakable vices’ (vizi innominabili)114 unnamed, as the Justice Minister Zanardelli openly declared in his report to the code.115 In contrast, reflecting the fascist ideology of the state’s mission in promoting the creation of a ‘new man’, within an overall project of rendering the nation more ‘virile’, the technical commission charged with the draft of the Rocco Code introduced the new crime of homosexuality: Article 528 – Homosexual Relations Anyone who performs acts of lust with a person of the same sex, or lends himself to such kind of acts, shall be punished if from the fact results public scandal, with imprisonment from six months to three years. The punishment shall be imprisonment from one to five years: If the culprit, being more than 21 years old, commits the fact on a person under 18 years of age; If the fact is committed by habit, or is profit-oriented.116

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Homosexuality was thus to be punished, even when the acts were committed in private; nonetheless, ‘public scandal’ was still a constitutive element of the crime. In practice, this amounted to a symbolic naming of the ‘vice’, and it was as such that the measure was criticized and eventually repudiated. In this domain, three types of arguments emerged. First, it was feared that the new incrimination might promote the idea that homosexuality was widespread behaviour in Italy, a message that ran counter to the image of virility that fascists wanted to transmit. This argument appeared in the report of the ministerial commission and, again, in that of the Justice Minister.117 Second, it was argued that to render the existence of this crime dependent of ‘public scandal’ amounted to a practical decriminalization of homosexual practices whenever these did not produce such scandal.118 Lastly, it was also implied that to incriminate homosexuality might produce the effect that the accused persons to be considered ‘normal’, since only those responsible for their acts could be punished.119 In reality, although the actual repression of homosexuality was strongly desired by virtually all the participants in this debate, the inconvenience of naming the ‘vice’ in a juridical text outnumbered the repressive gains that could be obtained thereby. ‘Some things, the less they are mentioned, the better it is’, summarized the ministerial commission. In view of this, other means of repression were particularly recommended. Apart from the Catholic Church and the local mechanisms of social control, the state maintained an invaluable recourse: the security police could exercise an effective repression of homosexuals without ever publicizing their acts or even naming them. This was recalled by some actors in the debate. And indeed, during the 1930s, the police sanctioning system was systematically employed against homosexuals.120 The adoption of a repressive strategy in which the refusal to name homosexuality featured as a crucial constitutive element was eventually confirmed. In sum, the aim of spotting the dangers posed by individuals to society thus implied the construction of what we can call a juridical fiction of that society, that is, the thematization of the latter as an ensemble of ‘juridical goods’ to be protected through the state coercive apparatus. Although this procedure was, as we have seen, deeply rooted in a scientific vision of governmental practice, it was not carried out with the objectivity and coldness usually attributed to science. At least in this case, considerations of political opportunity as to the messages transmitted by the content and form of incriminations were taken into account. One of the reasons for this was that codified crimes – hitherto ideally taken in their own objectivity – were increasingly viewed as irretrievably linked to criminals. In other words, the lawmaker was more than ever before willing to consider the subjectivities indicated by criminalized behaviour. In this light, the combination of the categories of ‘guilt’ and ‘alienation’ allowed for a considerably broader range of criminal subjectivities.

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Theoretically, the classical penalty remained at the centre of this system of sanctions. Throughout the codification process, the Minister of Justice repeated the idea that, although penalties and security measures coexisted for the sake of social defence, the former were still the most important. To be sure, their importance was not to be measured by the number of articles regarding each of these types of sanctions, for it could be argued that those consecrated to the security measures outnumbered those relative to the penalties. (Indeed, Ferri used this argument as a proof that in the new code the influence of the positivist school prevailed over that of the classical school.)121 Similarly, the importance of the penalty was not based on its being applicable to the greater part of criminals. In reality, whereas virtually every criminal qualified for the security measures, the irresponsible were not liable to penalties. In fact, the relative importance of the penalty was depicted otherwise: unlike the security measures, penalties were addressed not to delinquents but to all citizens, as their objective was to create a ‘motif ’ in the community capable of guaranteeing respect for the law. In this line of thought, the measure of the penalty’s efficiency was not given by the small number of cases in which the law was broken but by the immense majority of those in which it was observed. The main functions of penalties were thus to intimidate potential criminals and to eliminate, temporarily or definitively, those who had broken the law.122 It was with regard to this view of punishment that the minister sustained, in overt agreement with Garofalo, the necessity of preserving cellular segregation even in the cases of life sentences. He thought that this was the best way to deal with the perpetrators of the terrible crimes against children in Rome and other cities that had occurred in the then recent past. Speaking in the Chamber of Deputies before the series of attempts against Mussolini’s life – which ultimately justified the restoration of capital punishment – the minister resorted to these cases to back the harsh penalties he proposed. In reality, such crimes were to bring the death penalty to the forefront of the penal debates again, as, in Rocco’s view, it was the ‘most perfect’ of all penalties, realizing in an optimum manner their intimidating and eliminatory functions.123 To the objection that the person was always an end in itself and not a means – a maxim that Rocco linked to Kantianinspired liberal thought – he responded that the First World War, and the ‘fascist revolution’ thereafter, had inverted the terms of the problem. If this sacrifice was imposed on the most exemplary citizens, why not apply it on those who, on account of their crimes, were the least deserving of pity and consideration? If soldiers could be considered as a means of the state why not a convicted criminal?124 To be sure, the ‘fascist revolution’ had turned this war rationale into a political guideline, for, in Alfredo Rocco’s words, ‘we believe that the individual is a means and not and end, that society has its own ends, which transcend the life of the individual, and to which individual ends are subordinated’.125 It thus becomes

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clear that for Rocco the penalties, and chief among them capital punishment, represented this ‘transcendence’ of society over the individual. In fascist political discourse, the state was the receptacle of such transcendence. In reality, words similar to those of Rocco were pronounced by Mussolini in a discourse delivered to the first Five-Year Regime Assembly (Assemblea Quinquennale del Regime) in Rome in 1929: ‘The State is not only present, but is also past and, fore and foremost, future. It is the State that, transcending the short limit of individual lives represents the immanent consciousness of the Nation.’126 The same idea of the relative character of the individual vis-à-vis the state, and, indeed, of all other constitutive elements of society, was also thematized through the vocabulary of the ‘absolute state’ and that of the ‘ethical state’, as we can read in the entry on fascism that Mussolini wrote for the Enciclopedia Italiana Treccani: For fascism the State is the absolute in face of which individuals and groups are the relative. Individuals and groups are conceivable as long as they are in the State. The liberal State does not conduct the game nor the material and spiritual development of the collective, but limits itself to register the results; the fascist State has an awareness of its own, a will of its own, on account of which it is called an ‘ethical State.127

The concepts of ‘absolute’ and ‘ethical state’ conveyed a vision of inclusion of all elements of society within the state and their complete subordination to the state rationale. It is in this light that we must read the use of the notion of transcendence of the state over the individual. At times, these concepts are given an overtly religious coloration. For example: Fascism is a religious conception, in which Man is viewed in his immanent relationship with a superior law, one with an objective Will that transcends the singular individual and raises him up to the level of a conscious member of a spiritual society.128

In the penal field, the penal function of transmitting a message of transcendence was not new. As Neppi Modona rightly observed, the late classical school, which had in Francesco Carrara its main authority and in his jus rationalism its main source of inspiration, sustained that the penal law descended from the divine and that it, as such, derived ultimately from an ‘absolute reason’. What was new in fascism was that these ideas of ‘absolute’ and of ‘transcendence’ were identified with the state, its positive law being nothing other than its direct emanation.129 Thus, when Alfredo Rocco declared that the penal laws were the ‘most direct expression of state power’, this was not only a theory of penal law but was also a political statement containing a specific vision of the state.130 Indeed, punishment was to be understood as a sign of state transcendence. On this account, the religious concept of ‘guilt’ as a debt to be paid to a transcendent being maintained all its use. In reality, it was the actual concept whereby such an idea was

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translated into the penal system and, therefore, one to be kept at its core. We can thus say that the fascist ideology of the state impacted in a determinant manner on the relation between guilt and responsibility, and on the coercive consequences of certain types of crimes. But fascist ideology also reveals, at least symbolically, the categories of crimes. In the official report of the new penal code, the Minister of Justice argued that criminal codification amounted to the analytical development of general norms, conceived by the political power to protect certain ‘juridical goods’ by means of protective incriminations.131 While this echoed the influence of the technicojuridical school, the above analysis suggests that this understanding was actually enacted through strategic new incriminations, as well as the mobilization of professionals and lay citizens for the cause of the criminal code. The work of offense categorization is thus highly revealing of how codification was instrumental to reconnect the domain of law, not only with politics, but also with the core values, namely moral values, that the regime wanted to protect. In this perspective, a brief comparison with the penal code of 1889 is enlightening of the symbolic function attributed to the new criminal legislation. From the Zanardelli Code to the Rocco Code, the categories of crimes increased from ten to thirteen. Part of this work consisted in a further specification of those defined in the preceding code. This was the case for offenses against the good customs and the order of the family, which, in the Rocco Code, gave way to offenses against morality and the good customs and offenses against the family. In reality, lawmakers obtained important symbolic effects through a few linguistic adaptations without modifying the structure of incriminations substantially. Still, the hierarchy and the content of the titles in the part of code concerning the definition of crimes and their respective sanctions, book 2, underwent significant changes. Title 8 defined a whole new type of crime – offenses against the public economy, industry and trade – and was followed by the three titles regarding, respectively, public morals, the health and integrity of the race and the family, all of which had an obvious ideological content. Placed within the ensemble of titles regarding the state and the last two ensembles concerning patrimony and persons, these four intermediary titles (8, 9, 10 and 11) defined a zone between the strictly public and the strictly private juridical goods. In fact, this zone, bordered by the public economy and the family, constitutes, along with the concept of ‘personality of the state’, a major feature of this code when compared to its predecessor.

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The Syntax of Repression Practices Echoing the doctrine of his brother Arturo Rocco, in his speech to the Chamber of Deputies in 1925, the Minister of Justice presented the security measures as a major novelty, albeit not without first establishing the differences between these measures and the police sanctions. These differences boiled down to two aspects: first, police measures were ante factum, i.e. they preceded the crime, while the security measures were post factum, since they could be actuated only after the perpetration of an offense; second, the security measures were attributed to the judicial authorities (magistrates), while the police measures remained a competency of administrative authorities.132 The concern in drawing this distinction derived, of course, from the traits that the two sanctions had in common and from the risk that their respective boundaries become blurred. Indeed, both were dependent on evaluations of ‘individual dangerousness’ and had the objective of prevention. Additionally, and independently from the different organs of the state to whom they were trusted, both were administrative in nature, thus the acts they implied had wide margins of discretionary power, were indeterminate in duration and could be revoked at any time. Due to these identifying traits, the security measures undoubtedly presented the most problematic question of the entire codification process. The newly proposed institute, and secondarily the control of penalties by the novel figure of the surveillance judge, relocated the judge as the main entity of justice administration. It was certainly no coincidence that the juridical reform proper was preceded by the reform of careers in the judiciary, with the objective of engaging the best jurists and allowing for a swifter ascension of young magistrates to the highest positions of the magistracy. In the Chamber of Deputies, Alfredo Rocco declared the urgency of improving the economic conditions of magistrates, lauding the task of judging as a ‘superhuman mission’. Indeed, a new rhetoric on the functions and qualities of judges, which was otherwise in line with a tendency observed in international penal congresses, was articulated in Parliament. Rocco talked of the magistracy as a sort of priesthood, the exercise of which went hand in hand with ‘a kind of spiritual isolation full of hard sacrifices and difficult renunciations’.133 While the liberal politicians claimed the thought of Beccaria as the foundation of the modern penal system, the widening of the powers of judges was perceived as a change in its premises. For example, the representatives of the Universty of Sassari spoke of a derogation of Beccaria’s ‘idyllic system’.134 Magistrates were the real, symbolic as well as functional, beneficiaries in the redistribution of power within the juridico-penal system; in turn, the prison administrative officials appear to have been those most affected by this reconfiguration. The competences of the surveillance judge were undoubtedly an encroachment upon the terrain of prison administration and were viewed as such by prison governors. Though

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acquiescing in the principle of control of the execution of penalties by magistrates, the Directorate General of Prisons and Reformatories (Direttorio Generale delle Carceri e dei Riformatori) argued that prison directors should continue to govern the crucial aspects of prison life, such as the determination of disciplinary sanctions, the permission to work in the open air and the placement of the convicted persons within the different institutions of confinement.135 Speaking on behalf of the same Direttorio, otherwise a fascist creation, Bruno Franchi, director of the prisons of Florence and an enthusiastic fascist, went even farther in the critique of this new magistracy. In Franchi’s view, the surveillance judge, instead of turning prisons from administrative into judicial institutions, would only charge them with further bureaucracy and virtually impede their functioning.136 Franchi was particularly critical of the idea that the classification of convicts carried out by a magistrate preceded and determined their placement in the different types of prisons and prison sections. Such a notion, he argued, departed from the presupposition that the prison population could be divided into anthropologically homogeneous groups, an assumption contradicted by that which he had observed in practice. According to him, prisons had an immensely diverse population: ‘consumptive persons’, ‘pederasts’, ‘chronic persons’, ‘mad men’, ‘persons with diverse professions’, ‘persons abnormally constituted’, ‘persons belonging to rival criminal associations’. These were ‘anthropologically diverse individuals’, he argued. Additionally, ‘anthropologically similar individuals’ often manifested different behaviour, and the delinquents changed throughout the different stages of their sentences. From this he concluded that the classification of inmates could not coincide with that of criminals, and that the former was to be carried out already, and solely, during the expiation of penalties and security measures. The classification of criminals was therefore a matter of practical administration and did not belong in the penal code.137 To substitute what Franchi called the ‘apriorism’ of the formal and impersonal definition of crime by the definition thought to be substantial and personal with regards to the tried person was thus a serious mistake. While both systems weakened the ‘penitentiary function’, the latter also had the disadvantage of questioning the authority of prison governors within the view of detainees. Franchi went further in this argument and spoke of a sign of mistrust with regard to the prison administrative body, something he thought to be paradoxical in the view of Mussolini’s formal claim to the dignity of the ‘administrative function’, as opposed to the ‘old, demagogic, mistrust and to legal romanticism, a cultural and historical derivative of jus naturalism’.138 Prison officials were also high representatives of the state and carried out a mission of defence against the ‘criminal classes’ of society. While Bruno Franchi continued in the attempt to persuade Alfredo Rocco and his collaborators to suppress the surveillance judge (giudice di sorveglianza) from the definitive text of the penal code, the president

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of the Direttorio in 1928, Aldo Lusignoli, proposed that the figure of the prison governor be turned into a true magistrate – an ‘execution magistrate’ (magistrato di esecuzione). Yet, like Franchi, he thought that the distribution of convicts over the different types of institutes should emerge from the practice of administration and, accordingly, be a matter of prison regulations instead of a juridical matter and, as such, attributed to the magistracy.139 Overall, these criticisms reveal the estrangement felt by the prison officialdom with regard to the introduction of the penitentiary matters in the penal code. That this novelty was viewed more as a transfer of power to another professional body than an imposition of a new praxis on the prison administration is rendered clear by the proposal of attributing the status of magistrates to prison governors. But it also derives from the insistence on the idea that, despite being exercised by a judge, this new competence had an administrative, rather than juridical, rationale. Significantly, Franchi attributed this unhappy innovation to the influence of Enrico Ferri, in his outdated concern for the guarantees of both the individuals and of the society as a whole.140 In reality, the positivist school, in its quest for a scientific model of sanctioning, and departing from a critique on the methods of executing sentences based on utilitarian considerations, had also raised the question of the quantities and the forms of force that were to apply in prisons. The positivist critique had ultimately raised the question of the global coordination of the system and, at least indirectly, of the legitimacy of its composite parts, including prison praxis. The blurring of the juridical and the administrative functions in the figure of the judge was indeed the solution that Ferri advocated. Entrusting the judges with administrative competences allowed them to oversee the execution of sentences and prevent all useless employment of force by prison officials, a move which was unanimously read as an individual guarantee. Conversely, judges now granted juridical legitimacy to an otherwise contested execution of sentences. This twofold dimension of the magisterial function – to guarantee a minimum of jurisdicity in the administration of punishment and thus legitimize it – was even more visible in the new sanction of the security measures. While the intervention of judges became a guarantee of juridical correctness in itself, and therefore also of political legitimacy, an overtly administrative form of punishment, such as the security measures, became possible under condition of being enforced by magistrates. In this regard, the diverse shades in the positioning and arguments of the various juridical corporations that were formally consulted by the government apropos of the security measures – the magistrates, the university departments of penal law and the advocates – are highly significant. Magistrates were by far the most enthusiastic regarding the adoption of the new sanction. Among them it was agreed that this was the most important innovation of the Rocco pro-

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ject. The novelty did not lie in the measures themselves – which in some cases were already effected on the basis of administrative and police regulations – but in their attribution to the judges as part of their judicial competences.141 This substantial innovation was formally translated by the inclusion of the system of security measures within the penal code. A new ‘complete juridical ordering’ was, in the view of these magistrates, brought to light within that of the classical penal code. For some critics quoted by the Supreme Court (Corte di Cassazione del Regno), the former constituted a sort of second code contained within the latter. This did not preoccupy the Court: what was in question was no longer a penal code, strictly speaking, but a ‘true criminal code’, that is, ‘a code of defence against delinquency’, a model that comprehended repressive as well as preventive sanctions. In reality, both of them featured as a competence of magistrates, the distinction between repression and prevention becoming difficult to establish. The penal law and the ‘security law’ (diritto di sicurezza) used the same instruments to pursue a common objective: social defence against delinquents.142 This ‘security law’ disposed of much vaster means than the classical penal law. This was acknowledged by many of the courts that pronounced an opinion on the issue. First, this new system allowed judges to apply coercive measures on persons that had hitherto been out of their reach: the minor, the mad, the alcoholic and even ‘the person who, while not specifically committing a crime, shows the depraved will to commit it’.143 Second, it provided adequate means to target the ‘habitual, professional and tendency delinquent’.144 Third, these means – and mainly security measures – were much more varied and flexible than penalties. They could be either personal or pecuniary, with the former taking the forms of confinement and surveillance; they could be established before the sentence and independently of this being a conviction or an absolution; and lastly they had an indeterminate duration, which was dependent solely upon the cessation of the ‘state of danger’.145 For many of the magistrates consulted, the innovation imposed a substantial reform of other sections of the penal system. While the Court of Appeals of Turin, for instance, demanded a thorough reform of the judiciary ordering, that of Palermo reiterated the need to ‘educate’ the judges and prepare them to apply these new norms entirely predicated on ‘social dangerousness’.146 The idea that the security measures required newly specialized institutions was also widely shared, for even if these were already conveniently adapted along the lines of this policy, they were not yet sufficient. Among the institutions required, the most urgent were those for minors. Additionally, the enforcement of the new sanctions was conditioned upon the organization of agricultural colonies, and the construction of rehabilitation houses (case di cura) and asylums for the mentally ill.147 In fact, the high demand in infrastructures implied by the system of security measures was one of the most important sources of scepticism on the part

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of the academia and the advocates. The great detail in their juridical regulation was largely responsible for these practical difficulties: how, indeed, to distinguish clearly the cases belonging in an agricultural colony (colonia agricola), in a workhouse (casa di lavoro), in a house of rehabilitation and custody (casa di cura e custodia), in a judiciary mad-house (manicomio giudiziario) or in a judiciary correction house (riformatorio giudiziario)? The penal code project required, in fact, a complex institutional network, the components of which, largely still to be created, did not have very clear distinctive traits.148 The academia tended to emphasize the newness of the security measures more than the magistracy did: for example, the University of Cagliari viewed the inclusion of the administrative security measures in the project as its major characteristic, differentiating it from all past codes;149 so did the Catholic University of Milan150 and that of Palermo.151 Professor Sabatini, speaking on behalf of the University of Urbino, voiced a similar opinion: security measures, the juridical ordering of which, together with that on habit, professionalism and the instinctive tendency to commit crimes, as well as the criminal’s dangerousness, even when compared with foreign projects, are indeed innovations that should be considered the maximum value of the Italian Project.152

Also in line with these opinions, Professor Ugo Conti, from the University of Pisa, was somewhat more precise in the evaluation of the degree of newness of the security measures: it was their inclusion in the penal code in a systematic way, rather than in the partial and ‘unexpressed’ form of the Zanardelli Code, that constituted their relative novelty.153 A consequence of this – as was also observed by one of the universities consulted – was that this institute and the vocabulary associated with it, which evolved largely around the concept of ‘dangerousness’, was extended from the restricted circle of a few scholars to all those involved in the enforcement of the penal law.154 In practice, this considerably augmented the range of weapons against the most serious forms of delinquency.155 In other words, the newly codified security measures allowed the state to take control of the criminals that, having committed a crime, were not rehabilitated by their sentences. The codification of the security measures thus had two interrelated advantages: on the one hand, it ensured the defence of society against those criminals whose dangerousness was less visible than in the ‘most serious cases’;156 on the other, it transferred the sanctioning of the latter from the domain of police and administration to that of the judicial power, a move which was read as a guarantee for those subjected to the security measures. However, whilst according to this account the juridical formulation of the security measures was viewed as an individual guarantee in the face of state powers, it was more frequently viewed as posing a threat toward the individual taken in charge by the administrative machinery. This was mostly the perspective of

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the advocates, as they responded to the inquiry set by the Ministry of Justice. Although accepting the benefits of the new institute, the representatives of the advocates of Alessandria, for example, declared the urgency of developing regulating norms as to their application, in order to impede ‘abuses and degenerations’.157 A similar concern was voiced by the commission of the advocates of Milan, for whom much was still to be clarified by the code of penal procedure. In reality, the security measures were, in substance, measures of police, which, together with their reliability on the sole principle of dangerousness implying an ‘eminently subjective evaluation’, raised the concern that they could be subverted and threaten the enlightened individual guarantees. However, for the commission this was only a minor concern – the fact that they were attributed to the judicial power and the trustworthiness of the government behind them dispelled any doubts.158 Thus, and although the security measures raised an important theoretical debate, the question was discussed mainly at a practical level. How could the individual guarantees with social defence be reconciled in the actual enforcement of this sanction? How could the security measures be fashioned so that they had a specificity of their own and simultaneously combine with the already existing institutions in a coherent arrangement? And how could the principle of individualization they implied be translated into the institutional domain? The juridical articulation of the judgement on individual dangerousness, with concrete consequences in terms of the use of force by the state, was indeed one of the great novelties of this penal code. To be sure, it led the judge to proffer a statement on the personality of the delinquent, to pronounce that which some called a ‘psychological judgment’ (un giudizio psicologico).159 In the same line of thought, in 1928 the Minister of Justice explained to the deputies that on account of the Zanardelli Code, the deliverance of expert opinions in court gave rise to an inconvenient display of public discussions between experts, who were thus cornered into performing as advocates of the parts. Against this system of adversarial expertise (perizie di parte), Rocco sought to eliminate the technical judgment from the court, limiting it to the procedural phase of instruction and turning the expert into an auxiliary of the judge. With judges now at the juncture of the various pieces forming the judicial machinery – the sentence, its application, the evaluation of dangerousness and, indirectly, the expert statement – the prosecutor-general Moretta, speaker of the Court of Appeals of Genoa, was entirely justified to say that this reform opened a ‘new era of the punitive Italian magistrate’ (nuova era del magistrato punitivo italiano).160 In sum, more than a whole new set of institutions, what was at stake in this reform was the syntax of the state powers of coercion. Given a pivotal position between the old system of penalties and the new system of the security measures, the figure of the judge became the vantage point to rethink that syntax. In the light of this, it becomes easy to understand the centrality accorded to the pen-

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alty in its classical form, as well as the maintenance of the core principles of the Enlightenment concepts of punishment, namely that of nullum crimen, nulla poena sine lege. Indeed, fostering a perception of institutional continuity among the juridical corporations, they allowed the simultaneous introduction of significant innovations, as well as the juridical formulation of hitherto uncodified practices and the restoration of old institutes. This allows us to say that juridical continuity was not merely an illusion, but a desired reality, necessary for the reception and articulation of what was actually new.

4 A NEW SPACE OF REPRESSION

Guilt, Responsibility and Madness The trial of Violet Gibson, the woman who attempted to assassinate Mussolini in 1926 (see introduction), was perhaps the first process in which the politicopenal ratio analysed in the previous chapter was clearly stated. Judged by a court ad hoc, the Special Tribunal for the Defence of the State, its sentence of 10 May 1927 judged her guilty. Yet she was also declared as alienated and, on this basis, sent over to England, where this evaluation was reinstated by the English experts.1 Commenting on this case, Enrico Ferri considered that by virtue of these measures the court had accepted his point of view against that of the public prosecutor. However, Ferri implied that this did not go without a systemic contradiction. How could an alienated person be considered guilty of something? Guilty and alienated. Just as any follower of the classical school, Ferri saw an insurmountable contradiction between the two terms of Gibson’s sentence, and observed justly that a similar concept informed the treatment of responsibility in the penal code then in project. Overtly resorting to Gibson’s case to pinpoint the flaws of the penal code project – as if Gibson had been tried under its aegis – Ferri quoted its article 81: No one is to be punished for an act foreseen by the law as a crime, if at the time the act was committed the person was not accountable. The person who has the capacity to understand and to will, is accountable.2

While this article was meant to rule what the jurists called the criminal’s ‘generic penal capacity’ and Ferri’s criticism focused mainly on the exaggerated complexity that its combination with other norms on the criminal responsibility would entail in practice – against the simplicity needed for the sake of ‘social defence’ – he also mentioned its clash with the ‘scientific’ approach of the Scuola Positiva. His argument was that Violet Gibson, for example, was capable of willing and understanding but could not be considered accountable, as she actually was not considered accountable by the court that let her return to England.3

– 109 –

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Ferri’s remarks place a most significant point in evidence: in Violet Gibson’s trial, albeit preceding the coming into force of the Rocco Code, the latter principles on personal responsibility had already been applied. This contrasted with two similar cases in about the same period: the first failed attempt against Mussolini in 1925 and the killing of deputy Casalini in 1926. The penal historian and commentator at the time of the events, Ugo Spirito, suggested that one of the most salient characteristics of the Special Tribunal for the Defence of the State created some months after this first failed attempt, at least when compared with the political courts of the liberal period, was precisely the absence of the jury, hitherto considered indispensable mainly for political crimes as a guarantee of impartiality.4 According to Spirito, the change of view of Alfredo Rocco and of the Italian group working in the International Penal Law Association with regard to the institute of the jury was also directly linked with that event. Initially supportive of the institute of the jury, this group turned to a version thereof in which its popular element was substantially mitigated (the so-called system of scabinato). Some months after, the verdict of the popular jury on the homicide of Casalini declaring its alleged author, a man called Corvi, irresponsible and thus absolving him from penal sanctions, revived the debate on the jury. Newspapers close to the regime, such as the Popolo d’Italia, the Tevere and the Tribuna pronounced the jury an institution characteristic of the demo-liberal system and contradicting fascism.5 Subtracted from the penal institutions proper, Corvi was, however, to suffer an arguably harsher ordeal. Submitted to the security measures on account of his ‘mental illness’ (infermità di mente), he was interned in an asylum. Entrusted to an administrative institution, he was subject to the political power, undoubtedly more than would have been the case had he been sent to a prison. Spirito analysed his condition as follows: As long as the justice system, after elaborate investigation and with all the precautions and safeguards of a public trial, acquitted him [the accused person], a simple administrative measure was enough to convict him, despite acquittal … [In contrast], with a declaration of mental illness and the consequent security measures, the criminal no longer has the right to be called a man. And what code would ever allow a person to kill spiritually?6

From this, we can infer that for the fascist government the problem resided in the message that the sanctions transmitted at least as much as in the actual sanctioning of the criminal. The acquittal of personal responsibility in a crime implied by a sentence of absolution for irresponsibility posed a serious problem when the harmed good was the state. In this light, Gibson’s sentence – ‘guilty and alienated’ – derived a strong message from her act and simultaneously endowed it with political meaning. Her ‘guilt’ expressed her personal involvement in the crime and an objective relationship with the state, here personified by the duce

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himself. It was on this basis that the declaration of guilt did not contradict the medical verdict of ‘alienation’: the former was a juridical statement of the transcendence of the juridical good she had harmed, the state; the latter opened the way for a pragmatic fashioning of the concrete coercive measures to apply on her according either to a ‘scientific’ or a ‘political’ ratio, or the combination of both. With hindsight, Gibson’s sentence thus contained much of the rationale of the penal regime to come by the hand of the Rocco Code. In the domain of sanctions, it announced the dual system of sentences and administrative security measures. At this point intersecting with the classical tradition of penology, the fascist ideology of the state required that sentences remained at the node of the coercive relationship between the state and individuals. A few important consequences were extracted from this principle, some in accordance with the classical principles of punishment, others in clear contrast to them. In the former group belonged the rejection of indeterminate sentences, as they did not give to the community a clear and immediate representation of the consequences of crimes. Thus considered to diminish the efficacy of general intimidation, indeterminacy was then declared ‘antithetical’ to the concept of penalty.7 The latter group of principles featured Rocco’s recommendation to the judges that the severity of sentences be determined according to the social condition of the criminal: at the basis of this argument was the idea that while for a person of the lower social strata a few days of imprisonment could be a soft punishment, to those belonging in the higher classes the same sanction entailed a complete moral and material ruin.8 Eliminated from the codified criminal law of liberalism, this principle of social differentiation in the application of punishment was then to enter the domain of criminal justice through the enlargement of the discretionary powers of the magistracy. In sum, in order to render this repressive strategy operational, a profound transformation in the view of human nature contained in the penal code took place. This view will be termed as the juridical anthropology of the code. Guilty and alienated – this superseding of the classical dichotomy between the responsible and the irresponsible through what appeared as an impossible conjunction formed the core of fascist juridical anthropology. This allowed a new combination to be effected, that between personal responsibility and a tendency, by habit or instinct, to commit crimes. The ensemble of criminal laws issued at the end the codification process covered this newly defined space of punishment, in which the boundaries between guilt and alienation, levelled as equally threatening to the state, were blurred, if not altogether wiped off. The penal code of 1930 came into force on 1 July 1931, together with the new Code of Penal Procedure, a new Bill of Public Security (Legge di pubblica sicurezza) and the Regulation of the Institutes of Prevention and Punishment (Regolamento per gli istituti di prevenzione e di pena). Eventually these juridical texts were complemented by the Decree on the Court for

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Minors, dated 20 July 1934. Each of these measures concurred in the codification of the evaluation practices of individual dangerousness and, accordingly, the distribution of individuals to specialized institutions. While the serving of sentences could rely on the infrastructures of the old prison system, just as police confinement did on the inherited system of colonies, the above quoted penal actors observed, sceptically, that the security measures required the creation of new institutions or the conversion of old ones. However, the scepticism of jurists and scholars as to the applicability of the sanctions lost much of its force in the face of the data on the institutions forming the security measures network provided by Alberto Marucci in the Dizionario di criminologia.9 Indeed, Marucci refers to the fact that on 31 December 1937 there existed in Italy as many as thirty-nine institutions for the application of the security measures. They were fashioned as follows: For men: 4 agricultural colonies 3 workhouses (case di lavoro) 7 judiciary mad-asylums (manicomî giudiziarî) 1 house of care and custody (casa di cura e custodia) 14 judiciary correction houses (riformatorî giudiziarî), divided into autonomous establishments and sections of the re-education centres (stabilimenti autonomi and sezioni dei Centri di rieducazione) 2 judiciary sanatoria (sanatorî giudiziarî) 2 discipline houses (case di rigore) 1 house for the disabled (casa per minorati fisici) For women: 1 agricultural colony 1 workhouse (casa di lavoro) 1 house of care and custody (casa di cura e custodia) 1 correction house (riformatorio giudiziario) Altogether, these institutions had the capacity to receive 8,889 inmates. According to the official statistics, between the coming into force of the new penal norms (1 July 1931) and the last day of 1937, a total of 16,147 individuals entered these institutions and 8,459 were released from them. On 31 December 1937, a total of 7,193 detained persons were counted as being subject to security measures. The numbers of individuals entered in the ensemble of the penal institutions, particularly when the individuals entered in prisons to serve penal sentences are compared with those enduring security measures, is indicative of the actual importance of the latter. Indeed, according to the official data, the

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numbers concerning the security measures, especially in 1936 and 1937, came very near those regarding the serving of sentences (see Table 4.1). Table 4.1: Number of individuals in penal institutions (Italy, 1931–9) 1931 1932 1933 1934 1935 1936 1937 1938 1939

Preventive custody Penal sentence Measures of security 253,172 5,147 287,441 4,913 260,152 5,841 296,416 4,391 2,786 259,721 3,614 2,657 249,461 2,971 2,671 211,131 2,776 2,722 327,036 3,390 214,033 3,727

The juridical text that regulated the distribution of persons over diverse types of institutions, as well as the concrete modalities of their practice, was the Regulation of the Institutes of Prevention and Punishment.10 According to this law, the agricultural colonies, the workhouses, the judiciary mad-asylums, the house of care and custody and the judiciary correction houses served as the basic institutions in this system of sanctions, while the discipline houses were to receive individuals from agricultural colonies resilient to their ‘order and discipline’, and the judiciary sanatoria those suffering from tuberculosis or with a predisposition to this illness (article 257). In the institutional network for the serving of penal sentences, besides the ordinary penitentiaries, it was also foreseen that special institutions would be used according to the characteristics of the convicts. Each of these three sub-systems of the penal system – the ordinary penal institutions, the special penal institutions and those for the enforcement of the security measures – had well-codified disciplinary regimes of their own in this Regulation, and their supervision was the responsibility of different administrative authorities, structured in different ways. Each sub-system contained further specifications. For example, article 261 prescribed that the judiciary sanatoria be directed by doctors who specialized in tuberculosis, and the judiciary mad-asylums and the house of care and custody by alienists. In contrast, the other institutions for the enforcement of the security measures were entrusted to administrative officials ‘with particular experience in the re-adaptation of the detained’.11 Yet, overall, the various disciplinary regimes were fashioned to be quite similar in their functioning. This is most striking when we compare the discipline of the penal institutions strictu sensu with that of the institutions for the security measures. Indeed, the restrictions implied by detention in the security measures – regarding the forms of internment, use of personal goods, correspondence, visits, etc. – albeit submitted to regulations internal to the institutions, were explicitly those regarding the application of sentences. Additionally, just as in the latter

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case, ‘internees’ (interni, i.e. those persons submitted to the security measures) could be placed under diurnal and/or nocturnal isolation when required by the competent judiciary authority. There was also an obligation to work; and the law dictated that the clothing and feeding regimes, both exhaustively regulated, were exactly the same. The Regulation also included a detailed normative body – almost a code within the code (the whole chapter 11) – on the disciplinary methods of both types of institutions. All the articles referring to the procedural aspects of disciplinary sanctions in the application of sentences were extended to the security measures. There were slight differences only in the forms of the disciplinary rewards and punishments allowed: in the regime of the security measures, for instance, all the same punishments of the system of sentences were prescribed, save for cellular isolation with the feeding regime of bread and water and the use of blankets. The ways of addressing the delinquents were differentiated according to their status in the process (accused or convicted) and to the system of sanctions to which they were subject: the accused persons under preventive detention, as well as the ‘internees’, were to be called by their family name, while those convicted under penal sentences were to be treated by their registration number.12 In the face of this new penal regime, the evaluation of personal dangerousness had become a crucial task for the magistracy, as it now had two types of entry in the penal system: it was the central praxis in the system of the security measures. Additionally, and most importantly, it featured in the formation of the judgement of the delinquent in court. By virtue of the new penal code, judges could pronounce a person not guilty and, based on the sole criteria of dangerousness, submit her to security measures, which might or might not entail detention. The security measures were strictly dependent on the previous ascertainment by a judge of ‘social dangerousness’, which, in certain cases could be ‘presumed’ by the law (pericolosità sociale presunta). In principle, ‘social dangerousness’ and the correspondent sanction of the security measures should be declared by the judge along with the judicial sentence, either of conviction or absolution. However, they could be applied in three other circumstances: (1) after a conviction, during the execution of the sentence or in case the convicted had voluntarily subtracted himself to the penalty (an escape, for example); (2) in case of absolution whenever the quality of ‘person socially dangerous’ was presumed by the law; and (3) anytime in the cases established by the law. Additionally, in certain cases this sanction could be applied in the phases of instruction and during the trial for certain categories of persons: minors, the mentally ill, habitual alcoholics and drug addicts.13 In summary, the potential domain for the application of the security measures was immense, covering practically every individual submitted to a judicial process in each of its phases. Such a domain extended well beyond that of sentences, as security measures could befall persons not yet tried and those absolved

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of their accusations. Their application guaranteed them an elasticity that the sentences lacked. This was verified not only in the wide spectrum of possibilities with regards to the types of institutions, as seen above, but also in the security measures’ length, which was solely dependent on the judge.

Policing the Margins of Social Order In 1909, penologist Ugo Conti published a vehement testimony on the squalid living conditions observed in the detention colonies he had visited in the islands of Ustica and Lipari, which he opened with a quote from Dante’s Inferno in the Divine Comedy: I saw a swarm of muddy people in the quagmire, or men full of filth of a lifetime of dirt, wear, gambling, fights, sexual corruption, alcoholism, crime of all kinds, the most hellish things you can imagine in the middle of a sea and under a sky of paradise!14

Conti was referring to a repressive practice observed at least since the mid-nineteenth century, which had become particularly important as a means of political repression during the social and political crisis of the late 1890s. This practice was called ‘house arrest’ (domicilio coatto) and amounted to the relegation to a colony set in one of eight islands – Ustica, Lipari, Lampedusa, Favignana, Pantelleria, Ponza, Ventotene and Tremiti. Critical of the actual forms of enforcement of this sanction, Conti suggested that, instead of pursuing a rehabilitative ideal through work, house arrest was in practice a ban to a space of no law. In this context, he referred to the difficulty in obtaining a conditional release, the complete negligence of the economic state of the ‘forced person’ (coatto) and the lack of preoccupation in improving his working skills, so that, when the person in question was finally released, his situation was one of sheer calamity. Additionally, an individual entered in this chain of procedures and sanctions found virtually no judiciary guarantee and was practically abandoned to the arbitrariness of the authority allowed to pronounce a judgment on his ‘dangerousness’.15 Under fascism the situation did not get better. In reality, then as much as in the late liberal period, these colonies appear to have left an overwhelming impression of constituting a space that, despite being ultimately fashioned and legitimized by the law, was, in reality, completely alien to the sphere of legality. In the memoirs of his passage through a few penal colonies in Southern Italy, writer Carlo Levi expressed this idea in a particularly eloquent manner: Christ never came here, nor time, nor the individual soul, nor hope, nor the link between cause and effect, reason and history. Christ did not come, as the Romans had not arrived, who presided over the great roads and who had not entered the mountains and forests, nor the Greeks, who flourished on the sea of Metapontum and Sybaris: none of the brave men of the west brought down here his sense of the time

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Motivated by his political activities against the fascist regime, Levi’s detention formally had the status of ‘police confinement’ (confino di polizia), the new name of ‘house arrest’ to which Conti referred. His testimony expresses well the relative strangeness of the police and the judiciary systems to one another. Yet, we can safely say that these two sanctioning systems were further entangled during the fascist years. Let us then take a perspective on the specific targets of the police sanctioning system, its functioning and the ways the police and the judiciary systems were combined. In chapter 3, I approached the topic of the police sanctioning system – as we have seen, a typical late liberal coercive institution – from the viewpoint of its repressive potential vis-à-vis the so-called ‘dangerous classes’. Striving to supersede the notion of class, the fascist regime revised the law of public security, adding a more detailed account of the disorderly and suspicious behaviour to be tackled through police detention. The main operative institute was that of defamation (diffamazione), i.e. the designation of someone by the ‘public voice’ (voce pubblica) as ‘habitually guilty’ of acts such as ‘offenses against the personality of the State or the public order, and threat, violence or resistance against the public authorities’, ‘offenses against the integrity and the health of the race committed by persons exercising a sanitary activity’, ‘offenses of homicide, arson and personal injuries, and offenses of theft, usury, robbery, extortion, fraud and exploitation of disabled persons’, among others. In addition, in the same article, police sanctions extended to these cases whenever a penal process had ceased due to lack of proof.17 Besides these cases of defamation, the authorities of public security were enabled to sanction, on their own initiative, the ‘idle persons’, the ‘habitual vagabonds’ capable of working and without means of subsistence or suspected of living on the revenues of criminal acts and, once again, the persons designated by the ‘public voice’ as ‘socially dangerous’ or as presenting a threat to the political order of the state.18 Police confinement could be applied for a period of one to five years in two different ways. One of them consisted of the obligation to take a serious work in a different district from that in which the ‘confined’ (confinato) normally lived, of appearing regularly before the Authority of Public Security and in a series of injunctions and prohibitions defined for a less serious police sanction, the ‘warning’ (ammonizione). The other took the form of detention in a colony.19 The major innovations of the police sanctioning system in the fascist period thus evolved precisely around the institution of the confino. On the one hand, the confino was detached from the growing scale of police sanctions – which in

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the liberal period necessarily started with the ammonizione – thus becoming an autonomous police sanction. On the other hand, the concept of one’s ‘dangerousness to the State’ as one of the circumstances determining its application was also a crucial fascist innovation. Thus, while in the late liberal period the political use of the house arrest was declared as exceptional and provisory, now its avatar, the political police confinement, was thoroughly normalized, thus entering the regular institutional functioning of the state.20 A third major novelty must also be highlighted: the complete subtraction of the police sanctioning system from the sphere of judicial power.21 Indeed, while the application of the warning had hitherto been a competence of a judge or a judicial representative, now, at the operative core of the police system of sanctions stood the prefect (prefetto) and the quaestor (questore), who exercised, at the provincial level, the Authority of Public Security, and superintended over the chiefs of the local offices of public security (capi degli uffici di pubblica siccureza). It was the responsibility of the quaestor, for example, to start a process of ‘warning’: with a written report, he denounced to the prefect the ‘idle persons’, the vagabonds and those designated by the ‘public voice’ as dangerous to the social or political order of the state, as well as those defamed. The prefect then convoked the Provincial Commission, which was to pronounce the sanction to apply on the accused. Thus tightly linked to the communities through the institute of defamation, in its jurisdiction and procedures the police repressive system was fundamentally local. But it was as much embedded in local life as it was political. Indeed, a series of institutional links connected it with the executive power and with the fascist militia, institutionalized in 1923 with the name of Volunteer Militia for National Security (Milizia volontaria per la sicurezza nazionale). Presided over by the prefect, the Provincial Commission was composed by the quaestor, the king’s procurator (procuratore del Re), the province commandant of the carabinieri (a military police force) and a high-ranking official of the Volunteer Militia. A commission of appeal was set in direct dependence of the Ministry of the Interior.22 It is now important to look at the ways the police and the judiciary repressive systems were linked. Although fashioned to work independently, these were given a few, albeit crucial, institutional connections. Indeed, the promulgation of each one of these bills was accompanied, or shortly preceded, by an authorization to the government to coordinate the new law with the other coercive systems. This had happened in 1888, just before the publishing of the Bill on Public Security of 1889, and again under fascism, as a law dated 22 January 1928 authorized the government to square the Bill on Public Security of 1926 with the new codes (penal and of penal procedure). From this work of ‘coordination’ resulted the Bill of Public Security of 1931. Similarly, the Bill for the Defence of the State of 1926 was harmonized with the codes, namely in the definition of the respective

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jurisdictions, a work otherwise trusted to two leading penologists of the technical–juridical school, Vincenzo Manzini and Edoardo Massari. These were also the authors of the ensemble of norms that regulated the transition between the period of force of the Zanardelli Code and the new penal regime, a task crucial for the internal coordination of the sentences and the security measures.23 Although a person could be subjected simultaneously to a penal process and to a police procedure, when he or she was submitted to actual sanctions, either penal or police-related, the other process still in course was suspended. Designed as alternatives to one another, these systems communicated, however, at two points. One of these points was the transformation of the contraventions to the ammonizione and the confino in penal contraventions, which led the individual first caught in the web of the police to enter the penal machinery. The other was the special surveillance carried out by the Authority of Public Security on a released ex-convict. At the local level, the various authorities were notified of the release, upon which they exercised the surveillance required as a security measure. Two other channels between these sanctioning systems were inventoried by historians Neppi Modona and Marco Pelissero. First was the possibility of substituting the custodial measures of the juridico-penal system by an immediate police arrest, followed by the submission of the concerned person to a process leading to the sanction of police confinement.24 Carried out with a purely administrative logic and thus deprived of the classical juridical guarantees, this option allowed a much swifter and more efficient neutralization of those deemed as ‘dangerous’ to society and/or the political regime.25 Second, it became a current practice that those absolved from the Special Tribunal for the Defence of the State be submitted to the Authority of Public Security in order to let it decide on whether police measures should be imposed or not.26 Simultaneously an autonomous domain for the enforcement of sanctions and an entrance door, or a backup, to other coercive institutions, the security police guaranteed the omnipresence of state force subordinated to no other criteria than those of utility and interest. Another connection was established between the penal system proper and the police system of sanctions – one of a conceptual and symbolic nature, but no less important for the practical integration of these different types of coercive systems. Vincenzo Manzini, in his Tratatto di diritto penale, sheds light on this crucial aspect. Discussing the newly established juridical figure of ‘state personality’, Manzini argued that, the state constituting the most ‘preeminent juridical person’, it required a penal protection different from that accorded to all the other juridical persons.27 For Manzini, the state was actually a ‘real person’, the substance of which he defined as the ‘state organization’,28 having its own proper ‘interests’ to protect. These related to its existence, independence, potency, prosperity, prestige and dignity.29 The offenses against the state personality thus had, in Manzini’s eyes, a different nature from that of all other types of offenses: they

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constituted what he called ‘police offenses’ (reati di polizia). And, as such, they justified a ‘direct’ form of coercion, namely police intervention and war, as well an ‘indirect’ one, that is to say, the enforcement of penal sanctions with all the usual judicial guarantees. The particular nature of this kind of crime also impacted on the structure of incriminations proper. Indeed, according to Manzini, the incriminations established in the leading title of the special part of the Rocco Code deferred, almost always, to ‘danger’ rather than to a real done damage. In reality, he concluded, they were listed as crimes in the penal code only for obvious political reasons: it was important to state them. In summary, the concept of ‘dangerousness’ now occupied the operative core of all the main systems of state coercion, namely the penal and the police systems, and enabled them to be fully entangled. Ideally the state coercive system was, indeed, to operate as schematized in Table 4.2. Table 4.2: Correspondence between criminal responsibility, the legally defined anthropological types and the types of sanctions in the penal code of 1930 Criminal responsibility

Legally defined anthropological types

Types of sanctions

[Not dangerous delinquents] Imputable

Dangerous delinquents (either convicted or absolved)

Penalties

Delinquents by habit, by profession and/ or by tendency Minors of 14

Security measures

Not imputable Mentally-diminished persons Persons accused Dangerous persons but not yet tried Pre-delictum

[Delinquents without crime]

Police

This prompted the emergence of a unifying discourse regarding these hitherto rather estranged institutions. In the early 1940s, for example, the entry on ‘dangerousness’ in the Dizionario di criminologia presented the concept as the result of an all-encompassing evolution of the penal law from the mere act of revenge to a rational self-defence of the society. In order to deal with the diversity of threats posed to the state, its coercive apparatus was clearly differentiated into various sub-systems, each one of them dealing with persons through cognitively and institutionally diversified practices. Besides the more or less official, legally based, versions of the fascist criminal policy, these sub-systems were, in fact,

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referred to an overall economy of sanctions, the terms of which can be apprehended mostly by the symbolic investments made on each one of them. In this sense, it is important to look at Barbara Spackman’s analysis of fascism as a discursive regime. Showing that police confinement (confino di polizia) – with the term confino literally meaning border – was cast in medical terms, namely in Mussolini’s rhetoric, Spackman argues that this type of sanction actually conveyed the sense of an externalization of the sources of ‘infection’ of the social body.30 Besides the obvious functionality of the confino – mainly in what concerns the elimination of the political opposition – its ideological underpinnings are clear, as it served ‘to perpetuate the fantasy of an organic unity of the people’.31 While police confinement thus amounted to a purgatory expulsion of an ‘infecting agent’, the other sanctioning instruments appear to have been given a slightly different function. Largely the most codified system of sanctions, the judicial penal apparatus, rather than merely expelling the disturbing agents of society, allowed for real processes of objectifying and naturalizing danger, namely through its new institutes of the ‘habitual delinquent’, the ‘professional delinquent’ and the ‘delinquent by tendency’. The naturalizing capacity of the law was clearest in the figures of the ‘presumed habit’ to commit crimes and the ‘presumed danger’, in which a given number of relapses automatically led to the labelling of ‘habitual delinquent’. Yet even when the intervention of the judge was required to evaluate the accused, such an assessment now took the form of a purely juridical, rather than medical, intervention.

The Enemies of the State In this new configuration, the judge was called to become a psychologist, with psychology pushing psychiatry into narrower confines. Turned into an expert on dangerousness, the new code amplified the word of the judge to the detriment of that of the expert. This outcome had already been analysed by some actors within the codification process. Professor Mirto from the University of Messina, for instance, speaking on the Rocco Project, stated that it should be considered that the assessment of the instinctive tendency to commit a crime could not emanate from a psychiatric survey, but from a purely psychological survey, derived from the crime, from the objective and subjective aspects of the latter, as well as from the personal notes of the offender, being reserved to the judge, who, according to his conviction, would be called to give that qualification to the offender.32

It is outside the scope of this study to analyse the evaluation practices of social dangerousness. Instead, in order to develop the analysis of criminal reform as a culturally embedded and political process, as well its consequences, we should now turn to the ways the Rocco Code helped to reshape the concepts of crimi-

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nals and, more broadly, how the codification process defined the enemies of the order that criminal laws were called to protect. Nothing expressed better the interweaving of the state institutions of repression with the criminological programme of the 1930s than the Criminal Museum created by Alfredo Rocco and the Dictionary of Criminology issued, in two volumes, in 1943. After a long period where criminological museums were discredited, Alfredo Rocco created in 1931, the same year of the enforcement of the new penal codes, a great museum of this kind – the Museo Criminale. This was the first official criminological museum in Italy, since all the preceding ones, and most notably that of Lombroso in Turin, had had a private character.33 Installed in the old papal prison of Savella e Torre di Corte Nona, the museum was inaugurated on 18 September 1931 and immediately opened to criminal scientists. The museum was organized in five sections: the first of these addressed the execution of crimes, and was subdivided into the two departments of ‘violence’ and ‘fraud’, according to the category of crimes and the form of their perpetration; a second section consisted of the investigations of the judiciary police, namely the gathering and analysis of the clues and traces that led the latter to the criminal; the third section regarded penal execution, and was also subdivided into a department on the penal execution proper and another one on the effects of the sanctions on convicts; lastly, the museum included a section on the re-education of minors, containing photographs, documents and other instruments designed according to the ‘new criminological methods inaugurated by the regime’.34 Organized along the different stages of a judicial process, this museum contrasted sharply with that of Lombroso’s in Turin. Here four sections had been set out, yet it had been designed to entirely cover the various ‘natural’ dimensions of the criminal personae. Lombroso’s museum included an osteological section, containing skulls and skeletons of animals and humans, with human specimens coming from both criminals and ‘normal persons’, originally from the diverse regions of Italy and representative of various races. One could see a physiognomic section with wax and plaster masks and photographs of criminals, and a third section dedicated to brains, physical anomalies (ears in particular) and tattoos. Lastly, a fourth section set out to cover the psychological dimension of criminals, and included a collection of weapons and instruments employed in crimes, and works and traces left by the criminals during their detention period, such as ceramic objects, graffiti and writings.35 In sum, while the penal law had virtually no impact in the display of the materials in Lombroso’s museum, it is clear that in that set-up by Rocco, the penal code and the set of practices that it put in motion constituted its actual organizing principle. Speaking at the moment of its inauguration, the criminologist Giovanni Novelli took this line of thought further and established a causal

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link between the Museo Criminale and the new institution of the surveillance judge.36 While a connection was openly established between the new functions of surveillance of the judge and the setting-up of a scientific display of materials regarding the criminal in the form of the museum, the criminologist also conveyed the intention to go beyond this empirical level of knowledge. Indeed, the museum served this latter objective, as it allowed the systematic comparison of the features of criminality and criminal repression in diverse countries. This will to integrate the criminological museum with the repressive institutions of the state was fully realized in 1936, with the creation of a Centre of Penitentiary Studies (Centro di studi penitenziari Alfredo Rocco). In fact, the museum was turned into one of the constitutive parts of this centre, which also included a school for the formation of prison functionaries, a school to form the agents of custody, a chair of penitentiary law and a department for the study of national and international statistics (for the scientific research on the detained and to serve as a mediator in the relations with other penological entities). Additionally, the centre had a specialized library and was designed to be the seat of national and international associations working in the field. Another significant outcome of the impact of the new criminal legislation on criminal knowledge is the Dictionary of Criminology of 1943, edited by three prominent criminologists of the period (Eugenio Florian, Alfredo Niceforo and Nicola Pende). The Dictionary accorded a considerable space to entries with a typically institutional nature, such as the whole ensembles on Crimes, criminals, social defence, that on Science and penitentiary institutions and that on Penal process and judicial psychology, just to mention a few. More interestingly, the dictionary constitutes an invaluable barometer of the effects the Rocco legislation on the constitution of concepts regarding crimes and criminals. Although arranged in alphabetical order, the entries resulted from a diversity of points of view, corresponding to each one of the titles seen in the figure, and ranging from the more philosophical aspects of crime and punishment to the technical issues of criminal science. The entries covered a wide spectrum of social and natural phenomena, as well as different criminological traditions, disciplinary fields, institutional domains and expert techniques. The dictionary thus reveals a very wide concept of the criminal phenomena and conveyed a holistic view of criminology. As much as the legal sanctions analysed above codified the legitimate forms and employment of state force, we can say that the dictionary organized a vision of the social world. And as in the design of sanctions, ‘danger’ was at the core of a perspective over the whole society. This connection can be best illustrated by the attempts to square a new criminological classification of criminals with the classification established by the penal code. Enrico Altavilla’s treatment of the classification of criminals in the Dictionary of Criminology is a fine example of this. In fact, Altavilla addressed this issue in two entries, one on the Delinquents

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in connection with the special part of the code, the other titled, more generically, Classification of offenders. As he explained, the former was only rendered possible to articulate within a book on criminology as a result of the new symptomatic concept of crime. Certain types of crime, defined in the special part of the code, now appeared as an index of a given criminal personality. In this line of thought, Altavilla admitted, for example, that because of certain particular impulses, some individuals tended to certain crimes, contributing to the phenomenon of recidivism. He considered that these were often ‘delinquents by tendency’ that usually became ‘habitual’ or ‘professional delinquents’. However, he considered that this criterion of diagnosis was to be completed through an exam on the personality of the criminal, in which the evaluation of ‘dangerousness’ occupied the most important place. Instead of focusing on the ‘juridical goods’ they had harmed, delinquents were to be classified according to their degree of ‘dangerousness’. Additionally, the classification of crimes was to reflect the impact of this logic: ‘Hopefully today’s classification of crimes will be changed into another based purely on the infringed and endangered right’.37 Yet, the general part of the code comprehended another type of classification, which, according to Altavilla, followed rather closely the one that he considered as the most scientific. After presenting his classificatory scheme, he actually drew a set of correspondences with the penal code, pointing out also the objectives pursued by the sanctions established for each one of these types. In reality, it was the criminological classification that incorporated that of the code, not the other way around, as claimed by Altavilla. The classification of criminals was thus directly dependent on the latter having committed a juridically defined crime. As a result, the persons that entered the coercive machinery of the state through the police track did not undergo this process of juridical labelling. Ultimately, the only thing that linked the vagabonds, the idle, the petty criminals, the homosexuals and the political dissidents was the system of sanctions put in motion against them. Even so, the dictionary admitted a new category destined precisely to cover this heterogeneous population of the police colonies – the ‘criminals without crime’ (delinquenti senza reato). According to the author of this entry, this was a concept imported from countries of Iberian culture, namely Spain and countries of Latin America. Not exactly juridical in nature, it served to designate the ‘criminally dangerous’ persons, namely the vagabonds, beggars and petty criminals. In sum, it was the category fit for the population targeted by the security measures of police.38 Alongside these criminal types largely depicted along the guidelines of the criminal legislation, we encounter other groups and categories of individuals defined biologically, psychologically, socially or by a combination of more than one of these parameters. Not primarily defined as criminals, from the standpoint of ‘dangerousness’, these individuals and groups were nonetheless considered as

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part of the object of criminology. Due to the impact of war and the ‘evils of modernity’, entire categories of the population were potentially dangerous. This was the case for minors, as it was manifested in the discourses of criminologists and politicians analysed in chapter 3, and, to some extent, also that of women. The category of minors as a site of potential criminal danger had long been an important topic in the criminological discourses. The First World War revived it and the mainstream criminology in the interwar period accorded the issue of minors a great deal of attention. Also a major concern in the criminal policy of the fascist years, new penal institutions emerged in the late 1920s and the early 1930s. In 1929, a specialized magistracy for minors was instituted. Yet the major step in this field consisted in the setting-up of a great centre of re-education (the Centro di rieducazione, 1934). This complex included four institutes, all working in the same building of the Court of Minors: an observation centre (Istituto di osservazione), which received abandoned minors under 18, detained by the Authorities of Public Security, or waiting for a judiciary sanction or the internment in a correction house, with the objective of submitting them to a scientific exam in order to determine their personal characteristics and ascertain the best means for their rehabilitation; a re-education house (Casa di rieducazione) also for persons under 18 who had acquired ‘immoral habits’ and ‘deviant forms of behaviour’ and were in need of moral correction; a judiciary reformatory (Riformatorio giudiziario) for minors considered ‘socially dangerous’ who should undergo a security measure; and a prison (carcere) for detained minors.39 This set of institutes undoubtedly allowed the gathering of an unprecedented amount of information on juvenile and minor delinquents. Based on the compilation of individual identity cards, the recollection of data fell upon the environmental, mostly family related, the physical and the psychological factors. This enabled the construction of a set of indexes and analytical tools, such as the series of environmental and physio-psychic anomalies, the ordering of cases on the base of their frequency, tables indicating the correspondence of cases with the environmental and physio-psychic anomalies, indexes of the ‘associative intensity’ and the identification of groups of delinquents.40 These instruments were then used in the calculation of an ‘index of dangerousness’ in which were considered a diversity of variables ranging from the occupation, health and habits of the parents, to the scholar performance, the stability of the place of residence and the contact with foreigners.41 Gender played a non-negligible part in the evaluation of potential dangerousness. However, save for the fulfilling of the fatherly role, and despite the fact that the great majority of criminals were men, the focus was placed mainly on women. The Dictionary counted a significant number of entries regarding women specifically, either on account of the direct danger they represented or as motif for criminal acts (namely in the case of sexual offenses). While, for example, there

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is an entry titled ‘Woman (sexual stages)’ (Donna ( fasi sessuali)), there is not a corresponding one for men. In reality, since crime was predominantly a male phenomenon, it was the exception that called for a differentiated treatment. The type of criminality characteristic of women was here linked to their sexual and economic life. The former accounted for crimes of honour, jealousy and vengeance; the latter for those of theft, abortion, infanticide, personal lesions and homicide.42 Only the widening of the sphere of the economic type of crimes among women was perceived as a relative novelty. Indeed, while in pre-First World War criminal anthropology female criminality had been usually associated with the perceived proximity of women to the ‘natural world’, expressed through prostitution, with the impact of war and ‘modern life’, and the corresponding tendency of women to withdraw from the household and compete with men in the ‘struggle for survival’, the ‘feminine type of criminality’ tended to come closer to that of men.43 The new social conditions thus imposed further specific knowledge on women, for these now added some traits of manly dangerousness to those that derived from their specific nature. In reality, ‘modern life’ was far from having severed the supposed strong ties of women to nature: they only built on them, producing a specific modulation of the ‘typically female natural traits’. On this account, the criminological discourse on women of the interwar period reveals itself to be fundamentally continuous with that of turn-of-thecentury criminal anthropology, further developing the naturalizing dimensions of a supposedly typical female criminality. Thus, in line with the older criminological representations of female criminality, it was maintained that what was proper of women in their anti-social reactions was that these coincided, at least in tendency, with the most salient manifestations of their sexual life.44 Whereas men, once arrived at the adult state, had only to provide to their conservation – the ‘male type of criminality’ ultimately deriving from this function – women were oriented towards reproduction. This entangled them in the cycle of preparation for fecundation and, with menstruation, the undoing thereof, in a relentless process viewed as ‘a new Penelope’s web’ and thought to cause an important physical and psychical trauma. Although these phenomena generally had no external manifestations, they became more serious in the cases of unmarried women. For these, each menstruation signalled that a new opportunity to be fertilized was lost, this ‘warning’ being received by many in a gradually ‘melancholic’ way with the passing of years.45 However, fecundation also brought about its dangers, for parturition, with all its natural side-effects – lesions, loss of blood and pain – rather than the social, symbolic and economic conditions of women, was believed to constitute the root cause of infanticides. The author remarked that the Rocco Code acknowledged such a ‘specific natural condition of women’ when, through its article 578, it drew a distinction between homicide and infanticide, establishing

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the latter as an attenuating circumstance vis-à-vis the former. Nonetheless, this regime now required the immediacy of the act, imposing in general a harsher penal regime than that contained in the Zanardelli Code.46 Lastly, a potential of danger resided also in the periods of transition in the woman’s biological cycle. It was so with puberty and menopause. In these phases the impact of the biological factor on ‘the woman’s behaviour’ was such that, according to an author, a debate was held between psychiatrists and jurists on the possibility of placing women in these conditions within the category of ‘semimadness’ (semi infermità mentale) or, alternatively, to codify these states as generic attenuating circumstances. At this point, the author remarked that, as women spent a great part of their lives in one of these states, this implied the juridical presumption of a diminished responsibility for ‘the woman’ as such and her total inclusion in the domain of madness. And this contrasted with both the empirical data and the nuclear principles of the codified penal law. Thus, as far as the most radical legislative proposals were concerned, the juridical tradition appears to have once more acted as a check on the discourses formed in the scientific domains linked to criminology. Nonetheless, these were undoubtedly enhanced by the juridically articulated concept of ‘dangerousness’, and proliferated, in its most naturalizing forms, throughout the terrain it opened in the juridical field. In the same line of thought, other categories and population groups were taken as objects suitable for the Dictionary of Criminology on account of their ‘dangerousness’. An example would be the gypsies, whose nomadic way of life, resistance to state control – mainly in the forms of resistance to identification, military service and payment of taxes – and ‘prolific character’ lent them the epithet of a ‘social plague’.47 Tancredi Galimberti, the author of on entry on gypsies in the Dictionary, argued that the kind of behaviour of which they were more often accused – vagrancy – was no longer a crime, at least since the Zanardelli Code. Nonetheless, representing a ‘social danger’, they had also since then been kept under the close surveillance of the Authority of Public Security, therefore constituting an obvious target for the police sanctioning system. According to the Rocco Code, gypsies could be held responsible for crimes and contraventions such as the violation of the legal obligation to give assistance to minors or the trouble of the public order. However, as Galimberti also states, the prison system had no capacity to back the application of these norms, so that police sanctions were to remain the preferential means of coercion to deal with this population.48 Homosexuals were the object of a similar logic and a similar treatment. Although it ended up not being criminalized, homosexuality entered the Dictionary out of the logic of ‘social dangerousness’. It is, however, interesting to note that the emphasis was placed more on the effects that the social marginalizing of homosexuals had on their social status and conduct than on their ‘intrinsically abnormal nature’, which had been a recurrent topic among criminal

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anthropologists. Some degree of uncertainty as to the validity of this judgment and with regard to the responsibility of the homosexual for her or his condition had indeed replaced the sheer abnormalizing discourse of the late nineteenth century. In this respect, the Dictionary read, for example, that ‘there are homosexuals who present a high level of moral consciousness and intellectual qualities above average’.49 Yet this did not impede the same author to depict homosexuality as a matter for the police and as a criminogenic factor, a position that actually replicated that of the fascist lawgiver. At the same time, the stigma cast upon those recognized as homosexuals was deemed to place them in a track of increasingly serious forms of deviance. And crime was only a few steps down this slipway: due to the simple fact of being obliged to hide his or her homosexuality, resulting in social isolation, and on account of his or her being unprotected by the law, homosexuals were particularly susceptible to engaging in criminal acts.50 Thus, while it was kept out of the list of crimes, the view on homosexuality as a danger factor rendered it important even within the penal domain, as it could enter the evaluation of personal dangerousness and help to qualify criminals for the security measures. At any rate, homosexuals were easily controllable by the police, which was entitled to act against a behaviour that ‘offended the moral consciousness of the society’. And its sanctions, namely police confinement, indeed appear to have constituted the privileged means used in their repression.51 Lastly, the concept of ‘instinct’ was newly articulated with regard to an old topic – that of the popular versus ‘dangerous classes’. Objectified into a multiplicity of categories, ‘dangerousness’ became less strongly connected with the popular strata as such. Yet this did not imply the disappearance of the ‘popular danger’ from penological discourses. The analysis carried out above on the formation of the institutes of the ‘habitual delinquent’ and the ‘delinquent by tendency’ actually reveals a higher a degree of codification of the topic of ‘popular danger’. The concept of ‘habit’, midway between one’s socially defined living conditions and the physical translation of the latter into somatic traits, gave much leeway for developments of the bio-sociology of the ‘poor classes’ that, in many respects, had encapsulated the scientific programme of criminal anthropology. However, particularly idiosyncratic of the new discursive configuration of the 1920s and the 1930s was the setting up of psychology as a screen mediating between the social and biological determinants and their behavioural outcomes. In this line of thought, Alfredo Niceforo, author of a book entitled Anthropology of the Poor Classes (Antropologia delle classi povere) and of the entries in the Dictionary most directly related with this issue, is a good example of this update of criminal anthropology. Developing the premises of the latter, Niceforo committed himself to study the relations between delinquents and their economic, cultural and professional environment from the viewpoint of the formation of particular physical and psychological signs in criminals. He thus divided the

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population into two main strata on account of wealth, culture and profession, and proposed an analysis of the ‘lower class’ by way of a grid in which the biological and the psychological inquiry occupied the most prominent position. Each one of two classes were thus turned into separated criminal universes.52 The rigidity of the social boundaries implied by this approach was mitigated through the resource to Pareto’s studies on the circulation of the ‘superior elements’ of the lower strata and the ‘lower elements’ of the upper strata. This allowed Niceforo to supersede the stark rigidity of the sociological dualism implied by criminal anthropology. Nonetheless, it also enabled him to conclude that violent crimes were characteristic of the ‘inferior class’ while the criminality of the ‘superior class’ – to employ his own terms – was based on fraud and cunning. Within these two segments of the population, other distinctions were drawn, namely the profession and position in the relations of production. Resorting to official statistics, Niceforo reached the conclusion that the profession providing the highest number of convicted criminals were the peasants and shepherds, that the group with the highest index of crimes against persons were the working classes, and that the proportion of criminals among the dependent workers was almost five times that of employers and managers.53 From this Niceforo derived the conclusion that poverty, extreme fatigue and certain specific qualities developed by one’s profession explained the differences observed between these groups. Yet they constituted only a secondary causal factor, for the main one was to be found in the ‘primitive character’ of the lower strata, which reflected on the psyche of each individual in the form of a lack of the inhibiting mechanisms that civilization had developed in those belonging to the ‘upper class’. Inspired by other criminologists of the interwar period, Niceforo argued that the concept of ‘latent criminality’ accounted for primitive psychological formations, strongly marked by egoistic, anti-social and even criminal impulses.54 In contrast with Lombroso’s theory of the ‘born criminal’, every single person was, in this light, a latent criminal. However, in its practical implications, the two theories came very close: uninhibited by civilization, it was among the lower strata that the immoral and criminal impulses flared up most frequently. Thus reinterpreted in these vaguely psychoanalytical terms, the theory of atavism was reshaped to match the psychological bent of the new criminology. Furthermore, it now had a clear institutional juncture – the ‘delinquent by tendency’ – for even though the concept of ‘instinct’ was ultimately cancelled from the definitive version of the new juridical figure, it was clearly present in the minds of penologists. Vice and virtue, primitive instincts and the inhibitions brought by civilization: more than any specific theory, this had been the conceptual scheme behind the creation of the ‘delinquent by tendency’. To be sure, the ideological bias of this notion now surfaced with great clarity, as the theory of the two civilization speeds differentiated according to class revealed as the his-

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torico-sociological side of the psychology-based aetiology of the ‘delinquent by tendency’. In this new configuration, Lombrosianism was actually recast in psychological terms, and this allowed it also to articulate a juridical language. For practical matters, all this etiological discussion became rather secondary. Yet it enabled the deployment of a series of equations: political dissident = corrupted minor = hysterical woman = nomad = homosexual = worker = the poor = delinquent by tendency = danger. These were the enemies of the ‘ethical state’, not a sociological ensemble of persons, but the result of the plurality of possibilities to establish moral equivalences opened by the placing of the concept of ‘dangerousness’ at the centre of the penal system. Overall, ‘dangerousness’ was tantamount to a psychologized concept of evil, and it was in the terms of a particular inclination towards evil that the enemies of the state were to be viewed.

Energies of the Body Social On 19 October 1930, Alfredo Rocco submitted the definitive text of the penal code to Parliament, grounding it in a long report. This text reads as a summary of most of the themes that Rocco and his collaborators developed since the codification process had begun in 1925. Nonetheless, in this report there was a clear reinforcement of the fascist rhetoric associated with the penal code. For example, in one of the first statements of the report, Rocco declared that among the most important monuments of this legislation will remain the criminal law reform, ‘an imposing manifestation of the power of the juridical Italian genius, which the new national consciousness created by war and fascism freed from any influence of foreign ideas and traditions, orienting it towards more originally and purely Italian concepts’.55 While this quote displays a rhetoric we had already come across, with the new penal code as an expression of fascist ideology and punishment as one of the highest manifestations of the power of the state over individuals, others are relatively new, or at least gained greater emphasis. One of them resides in the accentuation of nationalist motives at the expense of those regarding the international character of penal science. For Rocco, the Italian character of the code had prevailed, and the suggestion was made that the codification process was, after all, a process of the purification of Italian penal law from all foreign influences. Additionally, the theme of war, which was central to fascist rhetoric but which in the penal field had hitherto remained in the shadow of other motives, came to the fore of penological argumentation. While the argument that the war had entailed profound economic, social, political and psychological transformations that demanded the strengthening of the society’s means of defence had already been used, now war was explicitly invoked to sustain the re-establishment of the death penalty.56

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Throughout the text, these two elements – the ‘Italian character of the code’ and the bellicose motive – are central to Rocco’s rhetoric and take various forms. The ‘Italian character of the code’ was articulated mostly along the theme of the Italian juridical tradition; while the second came up in the topic of the First World War as a sort of founding event which remained at the backdrop of the penal code. Their function becomes clear in the light of the general scheme of the report, indelibly marked by an oscillation between the announcement of ‘novelties’, sometimes considered as truly ‘revolutionary’, and the reassurance that nothing crucial in the penal order had been touched. Again, continuity and discontinuity were the central categories organizing the official discourse on penal reform. Nonetheless, tradition – which was, of course, intent on passing an image of continuity – was mobilized mostly to justify doctrinal or institutional novelties. In fact, when the concept of the right to punish changed from the Zanardelli Code to the code about to be approved – from a jus naturalist and contractualist one to another based upon the right of conservation and defence of the state – this only meant, according to Rocco, the establishment of a connection with a tradition that, instead of Carrara and Pessina, could be traced back to Romagnosi and Carmignani, and that had given rise to the Italian anthropological school of criminology.57 In this case ‘tradition’ served to institutionalize a penal sanction that did not belong in the precedent penal code. At this point, it is interesting to see how this reform, and the law in general, was viewed in the First Italian Juridical Congress. Promoted by the Fascist National Union of Lawyers and Attorneys (Sindacato Nazionale Fascista degli Avvocati e Procuratori) as part of the commemorations of the first decade of the March on Rome, starting on 5 October 1932, the Sindacato consisted of a great assembly of the juridical professions who had been assembled with the expressed aim of presenting and celebrating the legislative reforms carried out so far by the fascist regime and to assess their range and implications. Inaugurated by Mussolini himself, the congress opened with a solemn speech by the Minister of Justice that succeeded Alfredo Rocco in 1931, Pietro De Francisci. The leitmotif of De Francisci’s speech amounted to the idea the law is a product of the state’s will, with the state conceived as a concrete reality that stays above the law.58 This concept of the relations between the state and the law – the ‘fascist concept’, according to the Justice Minister – was presented as a radical breach of that promulgated by the liberal state. Additionally, it had been the concept staying at the backdrop of the ensemble of legal reforms undertaken by Mussolini’s government. Now, with the new codes and regulations published and enforced, the official discourse on these legal texts changed drastically: instead of the small ‘corrections and touches’ of Rocco’s early speeches on the reform to come, De Francisci defended the idea that what had taken place in the domains affected by the reforms did not fall short of a true revolution. ‘To a new reality a new dog-

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matic’, he declared after identifying that new reality with the ‘fascist revolution’ that occurred in the 1920s.59 And this could not go with mere touches to the juridical structure, as he clearly stated in his speech.60 This idea of rupture with the liberal tradition was particularly emphasized with regard to the penal field. In this domain, three reports were presented to account for the changes that had occurred: one, by Ugo Aloisi, on the penal code and on the code of penal procedure; another one, signed by Silvio Longhi, on the preventive, penal and assistance institutions for released convicts or internees; and a third one, authored by Giovanni Novelli, on penitentiary law.61 In line with a tendency verified in the later stages of codification, Ugo Aloisi placed emphasis on the new ‘juridical goods’ protected by the codes. These were presented, of course, as a direct emanation from the fascist ideology: the state personality, the state religion, public economy, the integrity and health of the race and family order.62 Aloisi explicitly invoked the famous Mussolinian formula – ‘Everything within the State, nothing outside the State, nothing against the State’ – as the basis of the newly enforced protection of the state personality. And echoing the concept of the ‘ethical State’, Aloisi highlighted the abandonment of ‘liberal agnosticism’ and the links with the politics of education of youth carried out by the regime, allegedly consecrated by these codes. At the same time, however, he argued that the penal protection of the Catholic cult was nothing more than a reconnection with a pre-Zanardelli Code tradition that was part of the post-Risorgimento patrimony, since a decree dated 19 October 1870 already punished the offenses on the ‘State religion’.63 Silvio Longhi stressed the idea that the combination of institutions of repression with those of prevention reflected that the clash between the two schools has been overcome. Together with the abolition of cellular confinement, this meant, in his eyes, a superseding of the ‘old ways’ of the penal system.64 A great emphasis was then placed on the welfare dimension of the reform, namely, the integration of the strict penal measures within a wider programme of assistance to ex-convicts and of social intervention in the moral, economic and educational domains. Here, and somehow at the juncture of these three domains, much importance was given to psychological orientation in the choice of one’s profession. Further, the reformed penal system took charge of the inculcation of a sense of duty, dignity and the cult of family and the nation.65 Lastly, Giovanni Novelli sought to prove that the driving idea behind the fascist penal reform was that of fighting delinquency, mainly through education and social integration. According to Novelli, who quoted Mussolini on this specific point, the principle of fighting delinquency through education and integration were present from the onset of the fascist program.66 Novelli viewed the functional differentiation of the three types of sanctions – sentences, security measures and police sanctions – and their simultaneous

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coordination as a strong statement about the fundamentally integrative aim of the newly shaped penal system. In this line of thought, Novelli presented the reinforced patronage councils (consigli di patronato) as a key piece in the fascist penitentiary order as, in the penologist’s words, they prolonged the security measures in free society. And the same was applicable on the crucial collaboration of private entities and religious institutions in the instruction of the inmates of penal and preventive institutions.67 When viewed in light of what now appeared as a typical fascist discourse on the law, these latter points acquire a crucial importance. Indeed, Novelli’s point regarding the centrality, in the penitentiary system, of control institutions acting in the free society echoed in the more general idea voiced by the now retired Alfredo Rocco in the same congress of jurists – that of a form of government obtained by the multiplication of the ‘contact organs’ between the governing elites and the ‘masses’. This, Rocco argued, had been achieved by Mussolini’s ‘sensitivity to the psychology of the masses’, a personal gift of the duce that was about to become embodied in the juridical ordering of the state.68 Rocco’s view fitted well with the new Minister of Justice’s discourse on the nature of fascist law in general. Nonetheless, a few topics, and even certain vocabulary, present in his overture speech to the congress, strike us as relatively novel. One of those topics amounts to the above-mentioned idea of law as a pure product of the state’s will and power. Thus, whilst for Alfredo Rocco the law was an expression of the state viewed as an abstract principle of order, now it was bluntly depicted as an instrument of the state. In this sense it was a direct reflex of the state power: ‘The greater the power and wider the activity of the State, the larger and more complex is the legal order’.69 Another theme – and this time one fostering a whole new type of vocabulary – can be summarized in terms of a vitalist theory, not only of the society, but of the law itself. While society had been frequently thematized as a living body composed of functionally differentiated parts, now this kind of vocabulary was also present in the discourse on the law and its connection with the exercise of sovereignty: The fascist State, sovereign State operating on all moments of reality, represents the effort to regulate most efficiently all the energies that develop within the national society; and it is a sovereign State expressing its will in the force of the law, by means of which it tends to implement a system of political, economic and ethical ends and interests, superior to all particular interests and ends. … In this context, the field of cyclical relationships between the individual and the State, between the individual and groups with different activities and interests, those of these groups among themselves and between the groups and the State, is a field crossed by waves of energy that in its life the State must conduct and discipline according to its higher ends.70

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An instrument of the sovereign state, the law was thus the means through which this acted, in the social body, as a regulator of the ‘energies’ that circulated between the different components of that ‘body’. Instead of Rocco’s battlefield between order and disorder, the ‘social body’ was viewed as a field crossed by more or less random fluxes of energy. Seen thus, the mission of the state was to tame these fluxes in view of an optimal utilization of their potential. And this was declared as much a ‘juridical problem’ as it was political. Departing from the specific problem of crime, the penal imaginary now expanded to the nation, understood as an organic compound. The new space of repression was, in reality, the whole of society.

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5 EARTHLY HELLS AND PURGATORIES

The Law of Penitentiary Cities Before the juridical setting establishing a juncture between penalties and security measures formally entered into penal codes, the latter already existed as a penitentiary practice and impacted on the design of new types of confinement institutions. A fine example of this can be found in the German penitentiary of Brandeburg Havel-Görden, the construction of which started in 1933, a few years before the penal code that consecrated the security measures in Germany was published, and finished in 1935. Similarly to the congresses of criminal anthropology of the late nineteenth century, in which attendants were guided in study excursions throughout the diverse archetypical sites of the criminal anthropological knowledge – the prison, the asylum for the mentally ill and the museum – in the penitentiary congresses of the interwar period, congressmen were given a tour of the penitentiary institutions considered as the most important by the official authorities.1 During the Berlin congress, the visit to the Brandenburg penitentiary undoubtedly constituted the highlight of that excursion. In the procedures of the congress we can read as follows: The new penitentiary for men, the newest and most modern, is located about 30 km from Berlin and 6 km from the town of Brandenburg and is surrounded by pine forests. It was built from 1928 to 1935 for those sentenced to imprisonment (Zuchthausstrafe). There are also special areas for those undergoing security detention (Sicherheitsverwahrung). In this new construction, the panoptical system was abandoned, as indeed for the construction of other modern prisons, and preference was given to rectangular building as having advantages in terms of technical operations. Between various buildings communication channels were provided that avoid all transport through open courtyards. With regard to the materials used for partition walls, glass was largely used, which greatly facilitates monitoring. Thus it becomes possible to control the corridors from several workshops and workplaces at a time. … The normal capacity of the facility is planned for 1,800 prisoners, including 1,036 for the convicted admitted to detention in common spaces and 764 inmates in isolation during the night.

– 135 –

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Crime and the Fascist State, 1850–1940 Workshops, equipped with modern machines, allow the employment of inmates in the following activities: weaving, sewing, binding, stationery, shoemaking, upholstery, metalwork, carpentry, manufacture of mats and matting. Several hundred prisoners are assigned to domestic services, to gardening and farming, while hundreds more men are busy in their cells at different kinds of work. The management strives to occupy as many prisoners as possible in agricultural work and improvement of land, not only because this kind of work has a very positive influence in the execution of sentences, but also because workshops that currently exist can occupy about a third of all prisoners. The hospital has 80 beds: there is a special section for men with declared tuberculosis and infectious diseases, an operating room, a laboratory for the application of X-rays, an electro-therapeutic section and a disinfection facility. It should be noted here again that a research institute biological criminology came into being.2

Thus presented as a cutting-edge prison, destined to supersede the old panoptical model, the Brandenburg penitentiary was, above all, conceived as a well-fenced and well-guarded autonomous citadel. Rather than a great one-piece optical machine, this prison was fashioned as an internally differentiated space. It included different blocs for different kinds of criminals, which, in turn, were attributed different occupations. Of the Benthamian figure of the panopticon as understood by Michel Foucault, this complex maintained its vaguely utopian element, which represents at once the ‘counter-city’ and the ‘perfect society.3 However, the same cannot be said of individualization and isolation, which was originally foreseen as the appropriate option for less than half of the prison population: in contrast to the classical panoptical prison, ideally oriented towards the placing of criminals in individual cells, the Brandenburg penitentiary was basically designed to favour groupings according to different labour occupations. Additionally, surveillance was no longer mainly aimed at individuals but at these differentiated groups of inmates. This required a new type of surveillance, one optimally allowing the control of multiple working spaces at the same time. And glass – transparent, and thus guaranteeing both the functional differentiation of working spaces and the apprehension of its organic totality – was to substitute the opacity of concrete or the optical deceitfulness of iron bars. Interconnectedness was indispensable for the functioning of this complex as a well-fenced organism, and hence there were corridors between buildings to avoid open air transition. Separated from the prisoners by glass only, a small army of guards, in contrast to the ideally small number of monitors of the classical panoptical bloc, patrolled the prison territory, guaranteeing both its internal order and the good functioning of the various labour units. A combination of old-style fort walls with surveillance towers, circumvented by a steep moat with new techniques to spot tentative fugitives maintained, with the help of dogs, the overall security of the compound.

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A few years later, in 1939, a short article appeared in the Revue International de Droit Pénal, announcing that the Italian government had decided to substitute the prison of Regina Coeli, for men, and that of Mantellati, for women, by a vast ensemble of new buildings that would take the name of Penitentiary City. Indeed, a royal decree dated 5 September 1938 authorized the expenditure of 30 million lire for the first phase of the construction, the total cost of which was estimated at approximately 100 million lire. According to the above notice, this project resulted from two necessities: that of adapting prisons to ‘the new rules of penitentiary science’, and that of replacing the old prison of Regina Coeli, which, according to the new plan for the urban reorganization of Rome, was to disappear. The article concluded by mentioning the intention of the Italian government to participate in this project in order to show the members of the following penitentiary congress, scheduled for 1940 in Rome, ‘Italy’s efforts in its fight against criminality’.4 The Second World War impeded both the realization of this congress and the realization of the project. However, it was also conceived of as a citadel to integrate the new developments of penitentiary science, in which the double-track system featured prominently. In its abandonment of the classical panoptical principle, the fascist penitentiary city shared the logic of the Brandenburg prison. At this point, it is important to note that the French prison of Fresnes, inaugurated in 1898, presents, in its structure and functioning, many similarities with the Brandenburg penitentiary. In a monograph on this true penitentiary citadel, historian Christian Carlier describes it as a sort of criminopolis.5 More specifically, in an article on the history of prison architecture, Sergio Lenci analysed the prison of Fresnes as a departure from the panoptical scheme: the priority of the separation of the detainees into groups, according to their age and crime category, over surveillance from a single vantage point; the prevalence of a serial structure of cells and blocs over the nuclear arrangements typical of the panopticon (a feature linked to the availability of a large number of functionaries to exercise surveillance with low costs); the transition in the style of the façade from the neo-gothic to a more sober style underlining the purely functional character of the building; and the focus on the internal specialization of the architectonic complex, as a means of enabling the prosecution of penitentiary treatment in its different stages.6 However, it is highly revealing that the Italian project of the città penitenziaria was fashioned, not only within the already existing legal frame, but precisely to apply it. To a large extent, it was to stand as the visible outcome of the fascist penal policy and codification. In accordance with the governmental directives, the project foresaw real urban spaces where, at least theoretically, the entire penal careers of the diverse types of detainees could take place. Ideally, they were to confirm the exercise of the repressive function of the state deployed in juridi-

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cal terms, here including justice administration and the communication with the public. Significantly, the latter was to be carried out through the Criminal Museum, rather than through direct observation of citizens and deputies, as in the original scheme of the panopticon.7 Let us now return to what was conceived as the constitutional law of this kind of territory. This demands that the reference to so-called penitentiary science be analysed at greater length. Developed in the nineteenth century as the field of knowledge that took as its object the functioning of penitentiaries, the main challenge of penitentiary science was to combine discipline, schooling, moral and religious instruction and work with a view to the ‘rehabilitation’ of prisoners. Championed in Italy by Beltrani-Scalia, penitentiary science reached its apogee in the 1870s and declined thereafter. Although the theme of ‘rehabilitation’ remained central, the debate as to the best combination of elements to obtain it lost much of its momentum, as the rigid disciplinary systems of the nineteenth century were largely discredited and the role of religion in the reform of criminals became increasingly secondary. In reality, it was the actual idea of ‘rehabilitation’ that was more and more questioned and scrutinized. Together with the notion of the failure of the prison rendered manifest through recidivism, the belief in the existence of ‘incorrigibles’ and ‘constitutional criminals’, whilst not always given scientific credibility, effected some loss of interest on the part of penologists with regard to the topic of ‘rehabilitation’. From the classical recipe concerning the reform of criminals, only work, in reality, remained a central question. The entry on ‘prison work’ (lavoro carcerario) in the Dictionary of Criminology is revealing of this. With the issue of penitentiary work now approached through the new bio-psychological language, it was argued that the ‘idleness’ of detainees leads to the deterioration of neuropsychic and organic energies of the individual; idle life in prison may also determinate or co-determinate serious morbid manifestations; lastly work must be recognized for its therapeutic efficacy (occupational therapy) for the mentally handicapped (and in general for the mentally ill).8

Basic rules of penitentiary work were stated as follows: • work must be subordinated to the demands of the penitentiary order and not vice versa • detainees are to be assigned to different types of work according to those they exercised previously • penitentiary work must, as much as possible, be similar to work in freedom • detainees must not be placed in a better situation than that of free workers

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• penitentiary work must be productive in order to maintain its dignity • detainees must be remunerated, albeit at a value inferior to that of the corresponding salaries in free life • although confinement institutions should have machinery and modern technological means of production, work itself must not be mechanical, for this does not improve the physical, spiritual and technical ‘energies’ of detainees; work must instead be adapted to the detainees in order to obtain both a moral and economic output • the organization of work demands a large leeway of discretionary power in order to guarantee the best possible redistribution of its potential.9 In addition, as an overarching principle, work was to be extended to all types of subjects of the penitentiary system and, with the exception of incapacitating illness, independently of the specific condition of the person. This meant specifically that even the detainees who, by virtue of a disciplinary sanction were submitted to cellular isolation, as well as those in preventive custody, were to be put to work. Further, work did not spare those enduring security measures, even in the case of minors, the psychically or physically handicapped (minorati psichici o fisici) and those detained in judiciary sanatoria. In these cases, however, differentiated working regimes were to be established, mainly to soften work compared to that carried out by convicts to penal sentences.10 In its closing paragraphs, the entry read that these prescriptions corresponded to the actual coordinates to regulate the penitentiary system issued by the fascist government along with the Rocco Code – the previously mentioned Regolamento per gli istituti di prevenzione e di pena (1931).11 Commenting on this regulation, the author emphasized the elements of penitentiary work that were analogous to work in freedom, namely the eight-hour working day, the norms concerning rest in holidays, and the system of assurances on labour accidents, invalidity, old age and tuberculosis. Characteristic of penitentiary work was, instead, the fact that it was directed by state commissioners (even when employers were private agencies); that it was preceded by a period of instruction; the distribution of workers by the Ministry of Justice over diverse categories according to the type of occupation and capacity and productivity of the detainee; and the remuneration of the penitentiary worker at a value inferior to that of the free worker in a proportion decided upon after the establishment of their juridical condition. In reality, the income retained by the penitentiary worker must have been substantially inferior to that of his homologous worker in freedom, since a part of it was destined to cover sustenance expenses.12 We therefore encounter an intended relation of homology between penitentiary work and free work. Two additional concerns underlie the organization of

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penitentiary work. One of them can be phrased as the principle of full occupation of detainees. Indeed, even in times of unemployment, as that period happened to be, the population of the penitentiary city was, at least ideally, to be fully occupied. Whenever confinement institutions could not guarantee the productive use of this workforce, the unemployed were to be absorbed by the public administration machinery. This was the object of a law dated 19 May 1932. Another major concern related to penitentiary work was to avoid competition with free work. A few measures were taken to mitigate the negative effects of competition. First, the liberal logic of making penitentiary work complementary to free work was further developed. Pre-fascist Italian law had already established the employment of detainees on poor land, upon the improvement of which they would be yielded to free workers. Additionally, the types of production carried out in these institutions could be easily adjusted to the economic characteristics of their environing sites (e.g. a penitentiary located in the zone of a certain industry should not produce the same products).13 Overall, together with the rationalization on the matters of revenue, these considerations reveal an effort to codify the connections, the communication channels – in sum, the kind of porosity – between the penitentiary system and free society, which, as we have seen, affected the supposed relation between social classes and categories of delinquents.14 The intended institutional porosity between prison and free life was closely accompanied by a theoretical effort regarding the correspondence between the social structure and the structure of the prison world. In this light it becomes evident that the set of categories that emerged with the Rocco Code to allow an anthropological judgment within the frame of the juridico-penal system, as analysed in chapters 3 and 4, served precisely this kind of translation. Concepts such as ‘habitual delinquent’, ‘delinquent by tendency’ and the diverse categories of irresponsible persons made possible an analogical relation between the position occupied by a given individual in free society and the specific site in which she would be placed within the penitentiary system. The intervention of the surveillance judge constituted the necessary complement to the efficacy of this operation, also allowing a certain mobility within the internally differentiated penitentiary city. In fact, conceived as organically structured, society had in the penitentiary city a sort of intensified version, a kind of subcity, which, in turn, was also to be organically related to the whole social complex. In this line of thought, rather than an influence on the making of criminal legislation, the renewed biological criminology must be viewed as a complement to it: while the juridical concepts became the moulds allowing the translation from the free world to the penitentiary city, ‘constitutional normotypes’ can be viewed as the moulds enabling the vertical disposition of criminals within the latter. At any rate, whether the instruments fashioned by biological criminology were used in practice or remained a reservoir of conceptual tools piling up in a new

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‘criminal museum’, they both derived from the same basic political disposition: an organic society must have a corresponding organic penal system. Historian Pietro Costa observed that the hierarchical principle was central to the fascist ideology regarding the organization of society: a major characteristic of the form of social organicism proper of Italian fascism, it was a means of creating at both the institutional and the economic levels a ‘coextension and a coincidence of state order and social organization’.15 The hierarchical principle thus appears also as impacting on the design of the penitentiary system itself. That work became the main theme along which the relation of the prison world with the environing society was thought became evident, not only in Italy, but in the transnational penal arena. The clearest expression of this was the Berlin Penal and Penitentiary Congress (IPPC) of 1935, where the second question of the section concerning prison administration, its explanatory commentary and obtained resolution read as follows: Second question What influence does industrial and agricultural unemployment have on the work of the prisoner in a time of crisis and by what means can the harmful consequences which it causes be avoided or reduced? In fixing the standard of life of the prisoner, must account be taken of the standard of life of the population in general? … Resolution Unemployment in free industry exerts in times of crisis a very unfavourable influence on the labour conditions in penal establishments not so much on agricultural as on industrial work. Prison work playing an important part in the execution of punishment and lack of work having the most pernicious effect on the prisoners’ character and outlook, sufficient work must be provided for them. For this reason the following measures are recommendable: 1. Protection of prisoners’ work by legislation by which the respective state departments shall be obliged to have specified work for public needs, for example the exploitation of scrap material, performed by prisoners and to supply a certain amount of what is needed from penal establishments in so far as such articles are manufactures there. 2. Employment of more prisoners on public works, in particular on agricultural work, on the cultivation of unreclaimed land and on similar works, due regard being taken of the interests of free labour. 3. Replacement of machine work by hand work where this can be done with consideration for the particular features of the trade and without impairing the quality of the goods produced and the training of the prisoners. Industrial occupation of prisoners is to be distributed on as many branches of industry as possible, in order to avoid the evils of competition. Where lack of work cannot be avoided all means must be taken to employ the physical and mental activity of the prisoners as for instance: increase of the hours of instruction, the institution of special courses of study, frequent change of reading matter, longer duration of walks, the practice of athletics, etc.

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Crime and the Fascist State, 1850–1940 In determining the conditions under which the prisoner must live, the conditions of living of the free population must be taken into consideration. They must therefore be as simple as possible, provided that the prisoner retains his health and working capacity.16

Never before in an international congress of this kind had a question and respective resolution addressed the topic of the relations between prison economy and living standards and those of society in such a straightforward way. Understandably, Georg Rusche and Otto Kirchheimer, two sociologists linked to the Frankfurt School working in the 1930s, viewed in this congress the overt and blunt formulation of what they described, after the eighteenth-century penal theoreticians, as the principle of less eligibility of the prison, that is, the requirement that life in prison be less eligible than the worst living conditions in freedom.17 In Punishment and Social Structure (1939) the authors maintained that, with the various historical forms of punishment being determined by the variations of offer and demand in the labour market, in modern times prison conditions followed these kinds of variations closely. These were necessarily reflected in living standards, with high rates of unemployment provoking their deterioration, and low rates of unemployment effecting their general rise. Thereby, the prison functioned as a gatekeeper of the market labour system: less eligible than the life of the poorest workers, it guaranteed wages were kept at their lowest possible level.18 To be sure, once again the Italian delegation presented a law then recently issued by the government to serve as an international model – precisely the Regulation for the institutes for the prevention and punishment (Regolamento per gli istituti di prevenzione e di pena) of 1931.19 Filippo Saporito was, in this case, the official delegate charged with the propaganda of the Italian solution. Yet other penologists took part in this endeavour, namely Giovanni Novelli, the previously mentioned judge in a high-rank court and general director of the Institutions of prevention and penalty. Novelli approached the topic of work through the viewpoint of the humanization and individualization of penalties (a question also formulated in the second section of the Berlin Congress). Like many other Italian penologists of the time, Novelli presented the Italian penal legislation as an embodiment of the ideal of a simultaneously scientific and humanitarian treatment of penitentiary work.20 Although he considered that education, the organization of libraries, the assurance of good health, hygiene, religion and, in well-controlled conditions, some means of recreation, all contributed to humanize and individualize penalties, he clearly accorded work the first place in view of these ends.21 Fore and foremost, Novelli emphasized the topic of the reorganization of penitentiary life in accordance with free society. Indeed the same organic, or at least hierarchical, principle we have observed behind that endeavour can be analysed in Novelli’s report.22 Yet, equally as important is the reference to legislation as a means, along with science, of organizing penitentiary work. The

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importance of such reference becomes particularly salient when we take into account that it was actually opposed to the Enlightenment and liberal forms of approaching the question. Referring to this period, Novelli stated that between the walls of the prison, the execution of sentences was very hard and laws left wide discretion powers to directors, who had the task of ensuring discipline in every way and mortified detainees through all kinds of moral and material offenses.23

In light of this, what for the nineteenth-century liberal regimes had appeared as a great progress in the way of humanization, now took the aspect of a dehumanizing system, with its oppressing architecture, insufficient nourishment, depressing isolation, humiliating work and ‘the kind of discipline that transformed Man into a thing’.24 It was precisely against this discretionary power of prison directors, by effect of which, within the walls of prisons hermetically closed to society, persons were turned into ‘things’, that a new form of right was in process of construction. In reality, this new juridical form – penitentiary law – went hand in hand with both the idea of a scientific humanization and individualization of sanctions; and with the centrality and complexity of work organization in penitentiary life. This link becomes even clearer in the entry, signed by the same Giovanni Novelli, in the Dictionary of Criminology. Here Novelli departed from the observation that in the preceding few years, although rooted in the writings of Beccaria and John Howard, penitentiary law (diritto penitenziario) had acquired an autonomous status.25 Until then, jurists had let the questions regarding the execution of penalties to the ‘social, biological or pedagogical scientists’, leaving their concrete procedures in a sort of juridical limbo. But now a new juridical setting launched the solid pillars of a complete ordering of the penitentiary city. In Italy, a journal of penitentiary law, the Rivista di diritto penitenziario, was created in 1929. And, according to Novelli, its main principles were fully articulated, for the first time, with the reform of 1930. These principles amounted to the individualization in the execution of sentences and to the recognition of subjective rights to the convicts and internees. The former element was directly linked, on the one hand, with the increasing complexity of the penitentiary system, which now consecrated diverse regimes (penalties, security measures, sanctions indeterminate in length and type, different working occupations and conditional release).26 The latter drew upon what in the international penitentiary congresses was called the ‘humanitarian point of view’:27 the notion that a conviction did not completely abolish the juridical personality of the convict and that, therefore, the personality had interests and rights to be protected.28 In his report presented to the Berlin IPPC, Novelli further developed the notion that the individualization in the execution of sanctions was inexorably linked to that of a one-to-one relationship between state and individual. He

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presented this point of view when criticizing two principles of penitentiary organization that served as a counter-model to his argument. One of them consisted in the self-government of the detainees within the prison walls, as observed in Mexico, a system in which the detainees took charge of the maintenance of order and of their own discipline. The other was the automatic concession of rewards to convicts according to their progression in the serving of sentences.29 Against both systems, Novelli argued that the two pillars for the new, modern, penal systems amounted to the supremacy of the state and the ‘scientific principles of individualization’. In this context, Novelli thus presented the Rocco Code as a model in the codification of this kind of individualized relationship between state and criminal.30 In this regard, it is interesting to note that one of the few criticisms that Ferri made of the Rocco Code project was that it imposed a privatistic logic on the penal law. The presuppositions and the exaggerated abstract style that Ferri encountered in the neoclassical school were characteristic, he argued, of a conception of the relation between the punishing state and the punished criminal as being entirely private in nature – in every way similar to that of two contenders whose mutual obligations had been broken. According to Ferri, this privatistic concept of the penal law emerged in Italy just before the First World War, ‘depriving our legal disciplines from the original characteristics of Latin thought, of which the Roman jurists gave unsurpassed example’.31 This critique was based on the argument that, while the private, constitutional, administrative and international branches of the law regulated the juridical relations as forms of the ‘normal’ activity of persons in society, criminal law was a science based on the personality of the delinquent and, therefore, responding to the ‘abnormal’ acts of persons. As an example, and save for a few exceptional cases (minority, madness, inebriety, etc.), the main institutes of the private law – such as property, the contract and the testament – were considered juridical entities independent of the physical and psychological characteristics of subjects. The central actor of the penal field being the criminal, by definition moved into an ‘abnormal’ behaviour by all kinds of social and subjective determinants, this privatistic logic could not, of course, be transposed into the criminal domain.32 The importance of the concept of ‘State personality’ for the reformulation of the penal question, when compared to the terms in which it emerged in the eighteenth century, has already been extensively dwelt upon in this study.33 However, these considerations on penitentiary law allow a further exploration of this aspect. Indeed, it was hardly by chance that the juridical concept of the free subject of criminal law was reformulated along the lines of private law. In reality, the prison emerged as the privileged terrain for the affirmation of the authority of the person-state over the criminal and the deviant, and the concept of penal retribution remained fundamental for this statement of authority. But this also became the case with a certain codified disposability of the individual

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by the state. These indeed constituted the main two vectors of the conceived direct relationship between state and person within the penal system. In this relationship at one extreme stood the person-state; at the other, a new juridical subject – the subject of penitentiary law. Instead of the administered subject of the liberal prison, residing in a space of no-law, either this was fashioned by discipline or not; that is, instead of the ‘object’ that Novelli spoke of, a new subject had emerged – the subject of a private, albeit unequal, juridical relationship. In this crucial feature of penitentiary law, Italy was accompanied by other countries. In Greece, for instance, an autonomous office functioning in the Ministry of Justice was created, by a law dated 10 March 1926, to watch over the system of penitentiary work. And Belgium took the same path, creating a similar bureau solely dedicated to penitentiary work in 1931.34 The other chief constitutive element of the new juridical field – the rights of detainees and a jurisdiction charged with guaranteeing them – was developed in other countries around the same period. Examples of this new jurisdiction can be found in countries in which penitentiary courts were set up during this period, like Finland, Poland and Czechoslovakia. In contrast, other countries had recently adopted an institution similar to the Italian surveillance judge. According to Ugo Conti, it had been the case in England, France, Germany, Spain, Yugoslavia, Holland, Russia, Poland, the United States of America, Peru, Argentina, Mexico, Brazil, China and Japan.35 The Italian delegation thus viewed their country’s solution being again presented as an international standard. In this domain, the international penal movement, besides constituting an arena for the exchange of these concepts and formulation of standards, also made a significant contribution towards the creation of penitentiary law by providing, with the Standard Minimum Rules for the Treatment of Prisoners, its bill of fundamental rights.

Inequality Utopias and the Eugenic Temptation The establishment of the reformed Italian penal system as an institutional model at the transnational plane reflected the need of states to institute forms of social control more flexible and pervasive than those rendered possible in the frame of the liberal rule of law. On the other hand, it indicated the path towards their incorporation into the juridical system without creating an institutional rupture. This was all the more important given that some institutions were perceived as constituting a serious breach with the classical tradition. Chief amongst these were the security measures. In this sense it was argued that although the principle of legality was never overtly called in question, the concept of legality itself suffered important changes. In reality, rather than being referred to the political entities and the processes inherent to the creation of norms, legality concerned the intervention of a

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judge in the coercive procedure. Magistrates were no longer to stand as mediators of the legislator’s will and the guardians of the political legitimacy of the system of penal norms, but to act as the actual purveyors of juridical legitimacy to the acts of force exercised in the name of the state. We have argued that this concept of the legality principle was crucial for the development of penitentiary law, which emerged as the main legacy of the transnational configuration formed by Italy and the international penal movement analysed in the course of this study. Penitentiary law opened up a new juridical space within that defined by the liberal political setting. While the latter was historically based on the political myth of the social contract, legal codification provided its most powerful realization. Expressed through a set of abstract norms, the law had become tightly dependent on the fiction of equality among citizens, a truly constitutive element of that political fiction. Formed through a contract among citizens of equal free will, the political community implied the alienation of a part of individual liberty for the sake of the common good. The state becoming the trustee of this contract, it was given the function, among others, of restoring the order of the social compact whenever it was broken by an illegitimate act, namely a crime.36 In the penal domain, punishment was thus formulated as a symbolic restoration of order following the break of the social contract among citizens, the terms of which were to be found in codified law. This kind of logic, however, relied on a fundamental dissociation, and effected an also crucial displacement in the symbolism of punishment with regard to that of the Old Regime: the dissociation between the pronouncement of the sentence and its practical execution; and a displacement of the moment of right from the latter to the former, to employ a term which comes from both juridical doctrine and sociological analysis.37 Indeed, while the sentence pronounced by a judge was still part of the contractual system of legality, with the judge constituting the vehicle whereby the word of the legislator was heard anew in the crucial moment of the restoration of order, it inserted the offender into a space where that word was no longer needed. Translated into the abstract equivalent of the offence committed, the sentence, generally in the form of time in prison, exhausted its symbolic political function in the moment of its pronouncement. Thus, strictly speaking, the actual execution of punishment, in sharp contrast to the ritualized forms of the late Old Regime, for example, did not belong in the symbolic space of the political community constituted through the contract. The space of the prison thus became a sort of space of no-law, thereby let open to other rationalities crucial for the practical government of the political and social system emerging in the Western societies of the early nineteenth century.38 Foucault’s view of the penitentiary as the terrain in which a disciplinary ratio appeared in its most intense form is built upon the crucial idea that the execution of punishment was actually subtracted to the logic of the law. To be sure, in

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Discipline and Punish, panopticism and disciplinary regimes do not derive from any kind of juridical logic; in reality, they do not even pertain to the sphere of the state. They are described instead as forms of social organization and rationality that disseminated, at a micro-level, through the social body and invested, in a discontinuous way, some of the crucial institutions of society. The new type of subject needed in the social compact organized by capitalism – i.e. the provider of pure workforce – was thus created outside the sphere of the state and its law. It is not by chance that panopticism and discipline are described, in the work of Foucault, as infra-penal and part of a counter-law.39 In reality, as Melossi and Pavarini have argued, the actual execution of the sentence takes place, rather than in the horizontal structure of the formal contract, within an apparatus of vertical relations of subjection. Thus, coupled with the ‘contractual reason’ that gives form to the codified law, and ultimately to the sentence – but that also expires in the moment it is pronounced – discipline then occupies the stage of punishment.40 By singling out a set of analogies between discipline in the penitentiary and discipline in the factory, Melossi and Pavarini argue that the penitentiary, developed within the frame of the codified penal law of liberalism, constituted the result of the rationalization of a dual analogy: ‘prisoners must be workers, workers must be prisoners’.41 Independent of the degree to which it actually colonized the prison space in each specific historical situation, penitentiary discipline configured the utopia of a mechanism that would automatically process the transformation of offenders of the liberal order into formally ‘rehabilitated’ citizens and, substantially, into a useful workforce. In its form, it matched up well with practical arbitrariness and with the effort to keep the penitentiary living standards at their lowest possible level (the so-called principle of less eligibility of the prison). Construed as a space of exception with regard to the political community, the penitentiary thus emerges as the real behind the bourgeois fiction of formal equality. However, even as a fiction, equality, relentlessly questioned by the uncontrollable phenomenon of recidivism, and increasingly surrounded by the theories of degeneration, atavism, epilepsy, hormonal irresistible behavioural determinations, differentiated instinctive tendencies and then pseudo-scientific racism, became more and more difficult to sustain. Nonetheless, the rationalizations of the criminal anthropologists, constructing the criminal as an irreducible other of civilized society, and those of the penal positivists, arguing for a system of measures of social defence in open rupture with the classical (i.e. liberal) juridico-penal system, still belong in this paradigm of the contract. As an example, Enrico Ferri’s penal views had some utopian overtones, namely in the idea that ‘penal substitutes’, a vast array of social and economic measures with a vaguely protectionist and welfarist general outlook, would eventually render the penal system unnecessary. However, even in the best

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of cases societies would still have to deal with an irreducible ensemble of criminals. Well in tune with his Lombrosian heritage, for Ferri the criminal world was ultimately synonymous with ‘abnormality’, even while, similarly to Durkheim, its very existence, as long as kept at a small scale, was a normal aspect of societies. Ferri can indeed be placed at the turning point between the liberal paradigm of punishment and the need to depart from it, in virtue of a growing perception that the state had to invest and rationalize the space of penality proper. His concept of a scientific organization of sanctions, from which a few juridical elements of guarantee of some individual rights were not absent, is the very expression of this need. At the same time, the main criticism Ferri formulated on the project of the Rocco Code – that, due to its contractual nature, it instituted a privatistic relationship between the state and the convict or internee, thus perverting the basic notion of the contract – is all too revealing of the fact that penal positivists still gravitated in the orbit of liberal constitutionalist thought. This privatistic relationship constituted, in reality, the basis upon which penitentiary law, conceived as a contractual, albeit unequal, juridical relation, was developed. In its shaping, the concept ‘State personality’ was, at least at some point of its process of formation, a logical pre-condition. At any rate, our analysis shows that historically the juridical personalization of the state constituted a stage of that process. At the other extreme of this relation, the two half-juridical, half-anthropological figures central to the newly codified penal law featured prominently: the ‘habitual delinquent’ and the ‘delinquent by tendency’. Relapse in crime, dangerousness and evilness became the vectors operating the translation between the society of the horizontal contract among citizens and the society of the penitentiary contract. Concentrating these attributes at their highest degree, now in the abstract terms of a certain notion of psychology, the constitution of these juridico-anthropological figures was indeed, as most of the penal actors involved in the codification process underlined, the crucial topic at stake in the making of the new code. The concrete historical situation of Italy, a nation trying hard to construct itself out of stark social and regional contrasts, turned this endeavour of codifying inequality into a highly valued political enterprise. In addition, the ideological centrality of the concept of the ‘person-state’ in fascist ideology, Italy’s prestige as one of the strongholds of the modern penal tradition and the know-how of its penologists in matters of codification turned it into a more-than-likely candidate to play a leading role in the formation of a penitentiary right, the need of which was, in reality, felt by many other countries. The strategic move of favouring the continuity of the legal tradition – well expressed in the rejection of the Ferri Project of 1921 – was, of course, essential to the emergence of Italy as a penal model within the world of civilian law.

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In Italy, as elsewhere, penitentiary law corresponded to the need felt by the ruling classes to abandon the liberal utopia of formal equality and the aspiration to carry out a juridical codification of inequality. This took the form of a penal law articulated along the concept of dangerousness. Yet, other types of normative discourses oriented towards the same objective emerged within this political configuration. A prominent example of this can be found in Nicola Pende’s constitutionalist eugenics, systematically exposed in his Bonifica umana razionale (1933), and analysed by Francesco Cassata as a kind of ‘biological totalitarianism’.42 In this text, Nicola Pende, a leading figure of the renewed criminology dear to the fascist regime, theorized an organically differentiated society commanded by the state. The utopian elements of this vision emerge from his declared aim of obtaining, with the individual elements at the disposal of the state, a social body that, by reaching a sort of energetic optimum, would perform at its highest possible level of productivity. Opposed to the uniformizing approach of the Soviets, Pende presented Italian fascism as the carrier of this vision, from which all industrialized countries were to benefit: Before God and before the law, men can and must out of necessity be considered equal, but in the face of the individual human biology and psychology, there are no equal but dissimilar individuals and unequal, i.e. individuals or groups of individuals dissimilar and unequal, i.e. individuals or groups of individuals different from each other for their physical and psychological capacities, as a result of the sum of their muscle values, moral values, intellectual values, calculable, marketable, usable in social reality, that is, in the large market of human values. And as for freedom, it is always for the individual who lives in the social aggregate, regardless of how primitive the latter is; yet the more civilization progresses, the more freedom must be conditioned, i.e. reduced and regulated according to the needs of the community and the unitary life of the state organism, of which the individual is a part. And especially we Italians, who thanks to the Fascist revolution gave perhaps a decisive blow in the forms of thought, which henceforth will rule the world, against the above-mentioned and anything but immortal principles of the French Revolution, while keeping us with healthy balance away from the homogenizing exaggerations and already in the process of revision of Soviet communism, we the Italian will be today more than any other people able to understand that even the traditional freedom in the choice of a profession, of a trade, of the form of productive activity of individual citizens, should henceforth be strictly controlled and regulated by the state.43

In one stroke, Pende naturalized the differences between individuals, justified theologically the regulatory power of the state and legitimized the curtailment of individual freedoms, which he considered a necessary consequence of ‘civilization’. It is also crucial to note the religious reference in Pende’s quote, something to which I will return later in this chapter. It has been noted that the political projects adhering to eugenics, although ranging the whole political spectrum, revealed, even in their most inclusive versions, many traits of a uto-

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pia for unequal societies.44 Indeed, thematizing inequality in terms of biological and psychological individual traits, eugenic movements generally proposed a set of measures oriented towards the strengthening of the classes considered to carry the best genetic stock, as well as the improvement of those less favoured by nature (so-called positive eugenics). In addition to this, in some cases, this was to be accompanied by the blockage of reproduction in the case of persons considered to carry transmissible degenerative characteristics, concretely through sterilization (negative eugenics). Following the example of the United States, where some states had applied compulsory sterilization since the late nineteenth century, in the 1920s and the 1930s, several countries adopted policies of sterilization of mentally ill persons or those considered ‘feeble-minded’: this was the case in Sweden, Denmark, Finland and few Swiss cantons. In the 1920s and 1930s, the number of American states adopting sterilization measures increased significantly. In the mid-1930s, about 20,000 legal sterilizations were performed, a number that raised to around 36,000 in 1941.45 In 1933, the Nazi regime passed the Law for the Prevention of Hereditary Diseased Offspring, promoting the eugenic sterilization of mentallyill individuals, the ‘feeble-minded’ and persons suffering from other kinds of psychological or physical disabilities.46 Two years later, Berlin received the last IPPC before the Second World War, with the topic of criminal eugenics coming to the fore of debate. To fully understand the fate of criminal eugenics in the international debates on penal reform, it is necessary first to explore the articulation of the vitalist themes it carried, along with the notion of biological inequalities to be taken into account in the design of institutions, in a cultural environment so strongly marked by Catholicism as Italy. A comparison with two other cases, Portugal and Spain, with similar institutional developments and a comparable religious background, will allow us to develop a concept of Catholic vitalism, as an overriding theme in the scientific, juridical and political culture of Southern European authoritarian regimes. It will also give us grounds to distinguish Italian fascism from similar kinds of political regimes.

Catholic Vitalism: Portugal, Spain and Italy In 1927 Alfredo Rocco referred to Portugal as one of the forerunners of the new trends in criminology for having established, in the early 1890s, deportation of vagrants and incorrigibles on account of their dangerousness.47 In the first few decades of the twentieth century, the principle of dangerousness expanded in new directions. Among the first few measures of the First Portuguese Republic, spanning the period between 1910 and 1926, featured the creation of a new system of courts and confinement institutions for child and young delinquents

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(Tutorias da Infância), the construction of high security prisons and the creation of agricultural colonies for ‘dangerous offenders’.48 Examples include the construction of Monsanto Prison (Cadeia de Monsanto), in 1914 and the Agricultural Penal Colony of Sintra (Colónia Agrícola Penal de Sintra), in 1915. The onset of Estado Novo, in 1926, an authoritarian and conservative regime with fascist traits, was accompanied by the emergence of new institutions based on similar principles. Chief among them, the Police of Public Security (Polícia de Segurança Pública) had its own detention facilities, the so-called ‘colonies for vagrants and incorrigibles’, namely those of Mitra and Pisão.49 The legal codification of dangerousness in 1936, with a bill on prison reform designed by the criminal law professor, José Beleza dos Santos, thus acquired a higher juridical dignity than the preceding administrative prison regulations. In fact, the Bill of Reorganization of prison services became the first set of norms, in Portugal, referring explicitly to a form of penitentiary law. It was in this context that a new type of sanction was implemented, the ‘security penalties’ (penas de segurança). Following closely the Italian double-track system, this sanction can be viewed as a local interpretation of the standard penal measures recommended by the international penal and penitentiary congresses.50 From 1921, Mendes Correia, a doctor and a leading exponent of physical anthropology in Portugal, directed the Scientific Research Institute in Anthropology (Instituto de Investigação Científica de Antropologia), in Oporto, which formed a generation of criminologists. The above-quoted Italian Dictionary of Criminology published in 1943 mentioned the Portuguese criminologist as one of the founders of the ‘new criminal anthropology’. This label referred to a rebirth of Lombrosian criminal anthropology, now enriched with the new developments in the field of endocrinology, considered crucial to classify and understand the behaviour of various types of criminals. Rather than focusing on the shape of the head and on facial traits, the new criminologists constructed biological and psychological types shown in body types (‘biotypology’), from which behavioural characteristics could be inferred.51 Solidly anchored in Lombrosian criminal anthropology, from the 1920s, Portuguese criminology made its core references the works in endocrinology and ‘biotypology’ by Giacinto Violla, Achille de Giovanni and Nicola Pende, as it becomes salient in a number of scientific journals addressing criminology and related issues.52 The Italian reference to Portuguese institutions and personalities are significant of the active participation of the Portuguese delegates in the international penal organizations, and, more importantly, of an affinity between the two countries in the ways of addressing the criminal question. A similar line of thought can also be developed for the Spanish case, as the juridical and institutional approaches to the issue of dangerousness and social defence followed a similar pattern.

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Unlike Portugal and Italy, Spain remained neutral during the First World War. However, its economy was strongly affected by the influenza epidemics in 1919 and, during the 1920s, by the colony wars in Spanish Morocco. The decade was also marked by the conservative dictatorship of Primo de Rivera, supported by the army, the monarchy, the Catholic Church and a significant proportion of the social elites. Although this conservative turn was interrupted, in 1931, by the leftist Second Republic until the onset of Franco’s regime in 1939, politically, Spain in the 1920s is comparable with the construction period of the fascist regime in Italy. Spain also participated actively in the international penal and criminological debates. Criminologists with a juridical background, such as Quintiliano Saldaña and Mariano Ruiz-Funes, were then internationally respected authorities in the field, contributing to the renewal of criminal anthropology through their publications, their involvement in criminology research laboratories and their participation in congresses. Saldaña, in particular, had a central role in the development of criminology in Spain: a university professor of penal law and criminal anthropology in Madrid, director of the School of Criminology (Escuela de Crimonología) and founder, in 1918, of the Museum-Laboratory of Criminology (Museo-Laboratorio de Criminología de la Facultad de Ciencias Jurídicas y Sociales de la Universidad Central), he directed criminological journals and published a great number of articles and books on related topics. Both Saldaña and Ruiz-Funes explored the implications of endocrinology for the development of a science of criminals, based on the construction of ‘biotypes’, the assessment of dangerousness and a pragmatic notion of sanctions based on the principles of social defence and prevention.53 Together with penologists Cuello Calón and Galo Ponte, Saldaña was charged by Primo de Rivera to redact a new penal code. The three jurists designed the new code along some of the current international standards. For instance, the Spanish Penal Code of 1928 became the first, in Southern Europe, to implement security measures for ‘dangerous offenders’, alongside the classical penalties, and was particularly harsh on its application of the death penalty.54 Breaking the strict legality principle and, simultaneously, turning the Ferrian principle of social defence subsidiary to the liberal logic of penalties based on personal responsibility, this code reflected and announced the Italian code in the making. Nonetheless, in contrast with the latter, it failed to generate consensus among both the jurists and the more radical psychiatrists. For instance, doctor Antonio Vallejo Nágera – later known for his experiments on Franco’s war prisoners in whom he sought to identify the ‘communist gene’ – complained, in 1929, that the new code was ‘anti-psychological’. According to the psychiatrist, who criticized the expert contest system between the involved parts, giving the judge the last word on the issue of the criminal’s dangerousness, the code prolonged the ‘bureaucratic’ mentality that characterized classical penal law.

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However, he also acknowledged the attempt of the lawmakers to keep up with modern science and praised the fact that code gave more decisional leeway to judges in the application of sanctions.55 Yet, while this was undoubtedly a major innovation, like Portugal, the Spanish specialty in penal matters was its network of institutions for child and juvenile offenders. In 1918 a system of juvenile courts (Tribunales tutelares de menores) was created for minors of 15, in combination with specialized confinement institutions.56 Largely based on the positivist theories of preventive social defence, in these courts judges recurred extensively to psychological and psychiatric methods: rather than a crime, the offense was an act of rebellion against the society on the part of the ‘predisposed’, ‘degenerate’ or ‘mentally ill’ young delinquent. As such, rather than being punished according to the gravity of the offense, the minor was to be ‘treated’ and virtually ‘healed’. Sanctions were thus, in principle, indeterminate in duration, conditioned as they were on the success of the treatment. Judges also had the capacity of suspending the rights of fathers or tutors deemed to have failed in their educational duties. In sum, as historian Pedro Trinidad Fernández rightly sustained, the system of juridical guarantees was replaced by a medically inspired sanctioning system that gave an immense power to the judge.57 Rivera’s regime reinforced this system, extending to 16 the age of the minors processed by these courts. Nonetheless, little is known of the minors judged in places without juvenile courts, which, according to Cuello Calón, constituted the most frequent situation.58 In these cases, juveniles were judged in ordinary courts. Only under the Second Republic, with the new penal code of 1932, was the system extended to the whole of the Spanish territory. The Republican regime brought important changes to the penal system and had a visible impact on criminological institutions and knowledge. The political significance attributed to the penal code is patent in the immediate derogation of the penal code of 1928 and the quick elaboration of a new one, in which penologists closer to the regime, such as Jiménez de Asúa and Antón Oneca, participated. Inspired by the humanitarian penal positivism of Dorado Montero, the Republican criminal code took a more moderate stand on penalties: the capital punishment was abolished along with a number of aggravating circumstances; and new institutions, such as parole and conditional sentences (condena condicional) came into being. However, a new law, entirely predicated on dangerousness and social defence, was approved in 1933, affecting the penal landscape in a way described by some authors in terms of rupture with the past – the Vagrancy Act or, more literally, the Bill of Vagrants and Troublemakers (Ley de Vagos y Maleantes). Let’s turn our focus now to this highly significant bill. The Vagrancy Act defined a number of categories of dangerous individuals, to which it prescribed a security measure independently of any committed crime. The law attributed to judges, helped by expert psychiatrists, the possibility of declaring as ‘in state of

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dangerousness’ (en estado peligroso) the following categories of individuals, among others: habitual vagrants, troublemakers, pimps, those incapable of justifying the origin of money in their possession, professional beggars, gamblers, alcoholics and drug addicts, those who hid their true name, recidivists in any kind of crime and those who revealed a conduct leading to crime. Security measures varied in their nature and length, ranging between fines, expulsion from the Spanish territory (in the case of foreigners) and internment in different kinds of institutions. These varied among three types: institutions with a work regime and agricultural colonies (Establecimiento de regimen de trabajo o colonias agrícolas); institutions of custody; and ‘temperance houses’ (Casa de templanza). Vagrants, troublemakers and all those deemed to be recovered through work discipline were to be interned in work institutions or agricultural colonies for an indeterminate duration, which should not, however, exceed three years. This regime, strongly predicated on education through work, covered the vast majority of cases. In turn, custody institutions were reserved for foreigners awaiting expulsion, individuals with signs of an ‘inclination to delinquency’,59 recidivists and dangerous delinquents, for a period up to five years. Lastly, ‘healing isolation’ (asilamiento curativo) in a ‘temperance house’ was reserved for drug addicts and habitual alcoholics.60 Signed by the Republican politician, Manuel Azaña, the law was discussed in the Constituent Cortes in July 1933. Leading penologists of the time, namely Jiménez de Asúa and Ruiz-Funes, intervened in the design of the bill, which was eventually approved by all represented political parties.61 While the concentration camps of Franco’s regime have been subject to relevant studies,62 the application of this law during the Second Republic remains yet to be studied. Nonetheless, some evidence points to its enforcement on a significant scale. In 1934, an illustrated journal called Estampa, published in Madrid, lauded the accomplishments of such a ‘progressive law’ in an article entitled ‘The First Concentration Camp for Vagrants and Troublemakers’. The article reported that in this camp, situated in Alcalá de Henares, near the Spanish capital, about 300 ‘vagos y maleantes’ were interned, whereas in the whole of the territory around 3,000 persons were subject to security measures in common prisons.63 The affinities between the three countries in the ways of tackling criminal dangerousness become even more salient when we look at their approach to criminal eugenics. Although the more radical developments of eugenics had virtually no expression in Portugal, from the last decade of the nineteenth century some of its topics were well received among the political elites and in certain scientific circles. The eugenic discourse flourished under a pre-existing concern over ‘social hygiene’, materialized in campaigns of medical prevention and assistance to the poor. In the republican, anarchist and socialist milieus, the idea of intervening in the environment in order to promote the quality of the genetic stock gained momentum. At the scientific level, French neo-Lamarckism

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had far more impact in the interpretation of the evolutionary theory in Portugal than the rediscovery, in 1900, of Mendel’s works on the transmission of hereditary traits.64 Neo-Lamarckian scientists, such as the French biologists Félix Le Dantec, defended an environmental version of eugenics, centred on the improvement of the living conditions of the poor as a means of favouring the quality of their offspring. Yet, in the 1900s, coinciding with the most active years of the anticlerical and secularizing campaigns of the republican regime, a new type of eugenic proposal emerged, stressing the necessity of controlling marriage and reproduction. The militant republican psychiatrist, Miguel Bombarda, defended the institution of a ‘marriage booklet’ (livrete de casamento), in which occurrences of mental illnesses and venereal diseases would be signalled, virtually grounding an official impediment to marry. A similar kind of proposal was discussed in Parliament in the beginning of 1910 with no legal outcome. In the 1910s, however, the question of the ‘booklet’ emerged once again, mostly by initiative of the Portuguese leading expert in social hygiene, Ricardo Jorge, albeit now focusing on prostitution and the problem of syphilis, and once more with no practical consequences.65 Among the domains in which the eugenic proposals flourished, mental illness and crime occupied a prominent position. However, even the most radical republican militant psychiatrists, such as Miguel Bombarda, Júlio de Matos and Egas Moniz, opposed the sterilization of so-called ‘degenerates’: by the standards of eugenics, coercive internment had favourable consequences and could thus be used as a surrogate measure.66 Again, juvenile delinquency and prostitution provided grounds to the eugenic debate. For example, in 1915, Mendes Correia argued that eugenics would help to lower the number of young offenders, and it was also with a concern for the improvement of the race that Father António de Oliveira reformed correction houses of the First Republic.67 Republican politicians promoted the regulation and medical inspection of prostitutes, with the argument, among others, that controlling the transmission of syphilis and other diseases would help to improve the genetic quality of the population. At this point, it is interesting to observe that, fighting to make prostitution illegal, the Catholics who as such participated in this debate also hailed the eugenic argument. However, rather than focusing on social hygiene, they argued that the privileged means to block the action of ‘dysgenic factors’ resided in the moral education of children and women, as well as in the containment of extra-marital sexuality.68 In Great Britain and some Northern European countries, the high birth rates of the poor classes constituted the core issue of the eugenic movement. In these cases, the eugenic discourse had a strong neo-Malthusian imprint, emphasizing the application of contraceptive methods on the poor.69 In contrast, in Portugal, neo-Malthusian practices had few supporters even in the Republican ranks. In reality, eugenic themes were covered by a wider preoccupation with ‘social

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hygiene’, which included topics such as exercise, ‘occupational hygiene’ and ‘hygiene of maternity and infancy’. It was with this perspective that new movements of scientists and political militants interested in eugenics appeared in the 1920s and the 1930s. The medical campaigns of the Portuguese League of Social Prophylaxis (Liga Portuguesa de Profilaxia Social), founded in 1924, articulating that which they called ‘positive eugenics’, in contrast with the measures focused on preventing the procreation of ‘degenerates’.70 In the late 1930s, a few eugenic projects centred on heredity flourished, under the patronage of Salazar’s regime of Estado Novo. This was the case of the Genealogical Psychiatric Archive, in the Faculty of Medicine in Lisbon (Arquivo Genealógico da Clínica Psiquiátrica da Faculdade de Medicina de Lisboa) and of the Portuguese Society of Eugenic Studies, created in Coimbra in 1937. But these were relatively isolated initiatives with no significant applications and no continuity after the war. In sum, just like their Italian masters, and even while not dismissing entirely the concepts of ‘atavism’ and ‘degeneration’ in their accounts of criminality and mental illness, Portuguese doctors and criminal anthropologists were indeed more concerned by the dysgenic impact of environmental factors than by the hereditary transmission of their defective traits. When we compare the Portuguese and the Spanish cases, the impact of the political environment as a modulating factor in the eugenics debates becomes quite striking. Indeed, the differences of political history between the two countries – with Spain being ‘conservative’-rightist oriented in the 1920s and ‘progressive’-leftist oriented until at least the civil war, in 1936–9 – produced a different chronology in the approach of eugenics. But despite such difference, in both countries ‘progressive’ republicans looked more favourably at measures of marriage control, which could be placed under the banner of ‘negative eugenics’, whilst conservatives, opposed to contraception and birth control on religious grounds, tended to promote a notion of ‘hygiene of the race’, both physical and moral. Let us take a quick look at the Spanish case. In a book published a year before the end of Rivera’s regime, Joaquín Noguera, a literature professor and a jurist in Madrid, referred to a seminar in eugenics he had organized at the Faculty of Medicine of the Spanish Central University. The seminar was to take place during the winter of 1928–9, with the help of two Catholic priests, Father Sureda and Jesuit Father Laburu.71 Noguera mentioned that his chief objective was to promote a fine combination of ‘moral’ and ‘organic convenience’. According to him, the course encountered a large public. As a consequence, the ecclesiastic authorities prohibited the priests from intervening, and soon after, the government put an end to the initiative.72 In the same book, defining eugenics as ‘the improvement of the race through the selection of hereditary characters, physical, intellectual and moral’, Noguera argued that degeneration was a major cause of the raise of criminality.73 This observa-

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tion, linking the issue of the ‘state of the race’ with the criminal question, had, as a logical consequence, the sterilization of the mentally ill and recidivists.74 This measure was to be combined with the implementation of the prenuptial certificate, an authorization passed by doctors, in the name of the state, guaranteeing that the applicants for marriage were free of ‘dysgenic’ diseases or conditions.75 The now influential criminologist Jiménez de Asúa was also in favour of the prenuptial certificate. Other personalities opposed the prenuptial certificate, but were in favour of a form of eugenics described, as in Portugal, in terms of ‘hygiene of the race’ and included, for example, the moral and health education of young persons who should not have children. One such supporter was Gregorio Marañon, a doctor specializing in endocrinology and its relations with psychology, and one of the leading authorities in Spanish ‘biotypology’. Writing after the instauration of the Second Republic in a preface to a book on the prenuptial certificate, Marañon stated that the new regime had at least made possible a debate that Rivera’s government – ‘at service of a pharisaic moral’ – had impeded.76 In turn, the author of the book he prefaced, Doctor Francisco de Haro, aimed at offering a well-grounded scientific argument for the approval of measures impeding procreation by the mentally ill, epileptics and persons affected by tuberculosis, syphilis or other transmissible diseases, for the ‘good health of the race’. In order to achieve this, the possibility of marriage was conditional on a health certificate passed by what he proposed to call Official Eugenic Cabinets.77 On the opposite side of the barricade, Catholic intellectuals and scientists refused that which they considered as a form of neo-Malthusianism. Writing in the 1930s, these authors stood for the ‘Christian doctrines’ and against the practices already observed in some Nordic countries. The conditioning of fertility through the prenuptial certificate interfered with the Catholic notion of marriage, even in the case of criminals and the mentally ill.78 Some of these authors mentioned only the necessity of a stricter moral education and the improvement of the moral and living conditions of families. Others went farther in this direction and argued for the necessity of favouring the procreation of the ‘select’, that is, the portion of the population showing evidence, in their physical traits and moral behaviour, of carrying the ‘best genetic stock’.79 Along these lines, Vallejo Nágera, for example, defended the commitment to generate a ‘Hispanic caste, ethnically improved and spiritually perfect’.80 To obtain this, politicians were to favour the fecundity of the ‘select’ along with the morality of family life. This was more efficient than adopting the measure of negative eugenics, which was scientifically questionable and harmful in the light of the defended pronatalist policy.81 In the same spirit, Fernández-Ruiz, a doctor close to Franco, defended a form of ‘social gynaecology’, meaning the improvement of women’s fertility for the welfare of the ‘Hispanic race’, and, waving Biblical quotes, manifested a strong opposition to all measures of birth control, neo-Malthusianism and abortion.82

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These ideas were further developed and applied already under Franco’s regime.83 Together with Mussolini’s measures to improve birth rates and Salazar’s campaigns of moral education, they constitute an example of a view of society as a differentiated organism, the vitality of which was to be improved through moral and health campaigns and a pronatalist policy.84 All three of them emphasized the racial importance of the family and accorded the law the role of transmitting moral values. The role of Catholicism thus looks decisive in the shaping of this particular version of eugenics. Significantly, in 1930 Pope Pius XI issued the encyclical Casti Connubii, which addressed explicitly the eugenic question. Its two leading principles amounted, first, to ‘not killing innocents’ (which in practice ruled out abortion) and, second, to not using sterilization as a penalty or as a form of prevention of future crimes.85 Nevertheless, the encyclical admitted the legitimacy of impeding the transmission of hereditary defaults. This was, however, to be obtained by means of dissuasion of the individuals considered particularly prone to have a ‘defective progeny’. For the Church, at stake in this question was the legitimacy of the state to dispose of the body organs of individuals, and here the encyclical was adamant: ‘Public authorities, then, have no direct authority on the body parts of the subjects’.86 Furthermore, individuals themselves could not dispose of their own organs beyond their ‘natural ends’, namely by mutilating or destroying them. As a hypothesis, we can argue that what mattered for the Catholic authorities was the preservation of a certain natural zone of the human person, rather than a concern with the problem of the relation between state and individual. Thus untouchable both by the state and by the individual, body organs could not be disposed of in the name of any rationale other than that of their ‘natural ends’.87 This theological stand matched perfectly with the scientific considerations of the Italian penologists and criminologists of the period. Vincenzo Manzini, for example, subscribed to the official Catholic condemnation of sterilization (reaffirmed by decree of 24 February 1940). Significantly, Manzini also refers to the formal condemnation in 1942, through inclusion in the index, of a book by the protestant writer, Wolfgang Stroothenke, Erbpflege und Christentum (Eugenics and Christianity), who argued that sterilization was not contrary to Christianity since true Christian charity consisted in developing a ‘race of strong and intelligent Men without sparing energy and money with useless and degenerate beings’.88 Even in the heyday of fascist totalitarianism, criminologists interpreted the ‘people’s feeling’ as fundamentally averse to sterilization. In this regard, the Dictionary of Criminology of 1943 stated that the most exquisite feeling of our Latin people is thus strongly opposed to the adoption of certain prophylactic methods against crime that some exotic nations adopted, methods that we discuss instead from the biological point of view, since they are of utmost importance for the hygiene of the race, such as, for example, castration, sterilization or elimination of certain offenders and certain psychopaths.89

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In reality, the specific entry of the Dictionary on sterilization suggests that these notions impregnated the constitution of scientific knowledge itself. Its author invoked the religious and moral questions raised by sterilization and castration. These, and in particular the latter, clashed with the ‘dignity’ of individuals, even if practised for the welfare of the collective. A sterile or castrated individual – he added – was in the eyes of the society a ‘diminished’ person (un minorato).90 In addition, he invoked the above quoted encyclical – together with another document issued by the Vatican on 25 September 1933 – as an authoritative argument against this kind of measure. The latter approached a topic in which scientific and moral doubts intersected with great acuity: given the lack of complete certainty as to the hereditary transmission of mental and physical anomalies in all the cases, and thus the possibility of ‘defective’ parents generating ‘normal’ offspring, eugenic sterilization could not be admitted.91 On the other hand, the author claimed, now on more strictly scientific grounds, that pathological characteristics in the domain of sexuality were generally linked to the more enveloping ‘degenerative criminal tendencies’. Through this typically Lombrosian argument, the author thus asserted the difficulty of establishing cases in which the motive to commit crimes had a purely sexual nature.92 Nonetheless, while this was the general principle, some exceptions were admitted. In one of them – sterilization carried out to obtain concrete therapeutic results – the consent on the part of the person submitted to the procedure was in demand.93 The other exception was articulated in clearly gendered terms: castration could be admitted for ‘defective’ women with a ‘hyper-erotic libido’ in order to avoid illegitimate pregnancies and the ill-treatment of their children; in contrast, castration was ruled out for ‘young men’ in any case.94 The author concluded by overtly taking a Catholic point of view, according to which sterilization with a medical and political-criminal end was allowed, but only in exceptional cases.95 The emphasis on the topic of male castration adds to this Latin, if not specifically Catholic, approach to eugenics an Italian particularity. This is all the more striking as we take into account that the Rocco Code actually created the new crime of ‘induced impotence’ (impotenza procurata): its article 583 criminalized all consented causing of a lesion in order to impede either a sexual relation or procreation.96 While this measure is, in part, to be interpreted in the light of the pronatalist policy of the fascist regime, the strongly emotional rejection observed among criminologists lends itself to a cultural-cum-ideological interpretation. At least since George Mosse’s studies on the representations of masculinity in Italian politics and culture in this period, it is clear that a certain ideal of virility played a crucial role in fascist ideology.97 In a similar line of thought, Barbara Spackman’s analysis of the politico-symbolic importance of Mussolini’s body conveys a pertinent interpretation of the fascist ideal of virility as a rhetorical element and, more importantly, a fantasy acting as a social ‘binding mechanism’. According to Spackman, Mussolini’s charisma was built, to a great extent, on

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the image of a male body fantasized as ‘unfragmented, uncastrated, unmutilated, whole’. In a context perceived as one of disorder and decay, the Duce’s supervirility represented, through carefully orchestrated public performances, the ideal of wholeness of the social body. Spackman argues that the ‘totalitarian’ body is thus a virile one not because the Duce, manly man that he was, happened to be its model; rather, the Duce’s body is virile because it is ‘totalitarian’, because of the function that it serves in relation to the social body that it represents.98

Yet not all totalitarian and authoritarian leaders of the time relied that strongly on personifying an ideal of virility. According to Mosse, Hitler, although promoting an ideal of Arian masculinity, presented himself more as a religious symbol than a virile man of action involved in the activity of common people.99 And Salazar in Portugal embodied more a certain notion of Catholic virtue than the ‘triumphant masculinity’, to employ Mosse’s terms, characteristic of Mussolini’s public presentations. We can, therefore, introduce a nuance to Spackman’s interpretation: virility was not exactly a reflection of a totalitarian ideology, but a style. It was the duce’s style, strongly rooted in Italian culture, of representing the social body as a total, sublime body. Spackman further argues that the reproduction of such a sublime body became, in many respects, a national undertaking.100 Such a statement indeed echoes in the criminal domain: the harsh penal code was deliberately intent on presenting a codified analogue of the state as person. The intersection of the criminal question with the topic of eugenics, through the criminalization of ‘induced impotence’ and the support of positive eugenics, suggests that the code and its satellite laws incorporated the regime’s ideal of virility. Even if we give credit to a denouncement that flared up more than once in this period, according to which Italy (but also France) practised penal sterilizations and castrations, the secrecy and illegality of such acts, if they occurred, only reinforce the hypothesis that the official refusal of negative eugenics, especially when performed on men, had a strong politico-symbolic value.101 The Rocco Code, construed simultaneously as an embodiment of the Italian values and the ordering power of the fascist state, and as a super-person in a direct and domineering relationship with the subject individuals, appeared as a juridical analogue of the leader’s virile strength. Legal codification was thus not only contradictory to the leader’s charisma, but went hand in hand with its gradual strengthening. Emerging as a product of the will of Italians, their character, values and moral standards, the criminal code appeared as the ‘ethical’ voice of a virile person-state. The politico-symbolic function of criminal law, and in particular of the code, constitutes the specificity of the Italian case. Yet, it may also account, at least in part, for its capacity to stand as a model for countries with political, socio-economic and cultural similar features.

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Criminal Eugenics and the End of Consensus In the international debate on the security measures, a new theme emerged in the criminal field: if criminals were, at least partially, biologically determined and could thus transmit criminal tendencies to their offspring; and if the state had the right to defend society from criminal danger, could and should it not then take the appropriate measures in view of this end? This constituted the central question of ‘criminal eugenics’. Discussed at length in the domains of criminology and eugenics in the 1930s, the issue of sterilization of criminals entered the juridico-penal debates of that which we have called the transnational arena, when penologists were asked to classify the types of security measures. In the Prague IPPC, Thédore Rittler, a professor of penal law at the University of Innsbruck, answered this question with a scheme of five categories: the security measures relating to the physical integrity of individuals; those targeting freedom; those targeting public and private rights; those targeting honour; and those befalling property.102 The act of sterilization could be understood to fall within the category of security measures attempting against the physical integrity of individuals. By including sterilization in this latter category of the security measures, Rittler approached the issue with typically liberal lenses. Accordingly, he had a critical stand on its application. However, rather than a question of principle, he justified his opposition to the measure on account of the lack of solid scientific knowledge at the time of the congress.103 At any rate, the issue became relevant as a matter of juridical codification and, in the following penitentiary congress (Berlin, 1935), it was formulated as an autonomous question, the first in section 3 (Prevention): ‘In what cases and according to what rules should sterilization be applied in the modern penal system, whether by castration or by vasectomy or salpingectomy [surgical methods of sterilization, respectively, of men and women]?’104 The commentary that preceded the adopted resolution, in the congress procedures, condensed perfectly the project and problems of criminal eugenics: According to an opinion which has recently become widespread, it is necessary, in order effectively to combat criminality, to include sterilization in some form or other among the measures of criminal policy. For instance, it is recommended as a measure of security in order to avoid the relapse of criminals who have committed offenses against morals, possibly as a substitution for internment in an ordinary or special penitentiary establishment, or as a measure of eugenics in order to prevent a criminal of abnormal constitution from begetting children. Can sterilization be regarded as admissible, and then as advisable? Should any distinction be made between the more and the less radical methods of application? These are some of the points which should be examined when dealing with this question. Moreover several countries have already introduced this measure into their legislation by more or less recent laws and have thus been able to gain experience, while in a number of other countries its introduction is contemplated by recent draft laws.105

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In most of the reports delivered on the question, two distinctions emerged as crucial for the debate that followed: eugenic sterilization versus castration; and consented sterilization/castration versus compulsory sterilization/castration. Indeed, the positions of the national speakers and of the participants in the discussion were distributed along the various possible combinations of these concepts. Both of medical nature, two main features distinguished these two types of intervention: while sterilization aimed at impeding reproduction without interfering with the sexual instinct, castration was specifically aimed at the latter with the objective of eliminating it. Secondly, sterilization was not generally considered as a form of mutilation whilst castration was viewed as such even by those who advocated it. Thus, these distinctions immediately deferred to two different domains in the criminal field. Sterilization was linked to the sphere of ‘abnormals’ who could reproduce and increase the number of potential criminals. In turn, castration concerned that of sexual criminals presenting a danger of relapsing and those considered to be led to crime by their sexual instincts.106 The speaker charged with synthesizing the various reports, the Swiss François Naville, professor of legal medicine in Geneva, took an overtly declared position in favour of both eugenic sterilization and castration, consented and compulsory. Naville invoked the Swiss experience in ‘therapeutic castration’, according to him first carried out in Zurich in 1892 by Auguste Forel. It was also in Switzerland that the first scientific debate, in an assembly of doctors, on the advantages of the sterilization and castration of ‘psychopaths’ took place. Again, in Naville’s country, these procedures had been carried out systematically since the early 1900s, allowing the ‘best medical studies’ he knew to be produced.107 He thus presented Switzerland as the model to be followed. To this Naville added Denmark, which, by a law of 1929 authorized castration whenever an ‘abnormal sexual excitation’ led persons to commit crimes. Denmark also permitted eugenic sterilization on interned ‘abnormals’ of an adult age.108 Additionally, Naville presented the Nazi law of 24 November 1933 – the so-called Law against Dangerous Habitual Delinquents – and declared the need to ‘complement’ it with other measures. Specifically, this law allowed the castration of males over 21 to be added to the penalty whenever the criminal was convicted for more than six months for a crime against morality. Included here were ‘coercive excitation to debauchery’, abuse of a woman deprived of will or alienated, attempts against the morals on a minor, rape, public acts contrary to morals and physical injuries committed in a sexual relation for the satisfaction of a sexual appetite. Incest and the acts committed on a dependent person remained excluded, because these were supposed to rely more on the verification of certain conditions favourable to the occurrence of these crimes than on ‘sexual deviancies’ proper; and the ‘crime of homosexuality’, since it was believed that in these cases castration not only did not halt depravation, it actually stimulated the ‘passive instincts’.109

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Naville also mentioned the objections to this kind of ‘preventive procedure’. As far as sterilization was concerned, one of the most frequent arguments was that of the insufficiency of scientific knowledge on the hereditary transmission of criminal tendencies. Arguments of a religious nature were also mobilized by speakers from Holland, Belgium and Hungary. Lastly, doubts were also voiced on the question of consent, which moved, yet again, to the domain of free will. However, for the advocates of criminal eugenics, if the state had the right to kill, imprison, condemn to forced work and deprive a person of his or her civil rights in the name of society’s welfare, it should also be allowed to impede the ‘ill’ or ‘degenerate’ criminals from procreating.110 In other words, if the state had the right to take a person’s life and freedom, it also had the right to act upon the body of the offender. This implied a clear departure from typically liberal thought, of which Naville was, in reality, very conscious. Indeed, to this he added: ‘The fact that castration is a mutilation doesn’t stop us, since it aims a therapeutic effect. Neither does the fact that this surgery surely has a punitive and afflictive nature’.111 Naville recognized that, in view of the existing laws, in the vast majority of countries this kind of intervention was impossible. It was thus necessary to create new laws – and here he referred concretely to the penal codes and to ‘medical law’ (droit médical) – in order to obtain the necessary conditions for the enactment of these procedures.112 In the section charged with the discussion of the question these criticisms were further elaborated and formalized into three positions: • The regulation of consented sterilization and castration in the frame of penal law and the admission of these two procedures also on a compulsory basis.113 • The same principles with a differentiated treatment of individuals according to the offences committed.114 • A principled opposition to these measures, particularly when carried out in the frame of penal law.115 Voted in the section of Prevention, the first of these systems was adopted with a ‘vast majority’ and was taken to debate in the congress general assembly. Yet here this proposal not only did not attain a minimum consensus among all congressmen present, it actually created a profound fracture in the project of the ‘universality of repression’. The arguments repeated against this measure were very similar to those mentioned above. Additionally, the idea of castration, and for some penologists also the concept of sterilization, as a mutilation – thus against the ‘modern’ concept of the penal law – and that of both sterilization and castration as an illegitimate intervention either on nature or against ‘the plan of the Divine Providence’, here gained an enormous emphasis.116 In some cases these procedures were overtly declared as clashing with the basics not only

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of the penal law system but with the ‘mentality’ of the represented country. The congressmen opposed to the adoption of these measures as a resolution then attempted to render the voting nominal. This strategy failing, the text of the above-quoted resolution – a development of the principles proposed by François Naville and Arthur Gütt – was approved, also with a ‘vast majority’. Shortly before the voting, Quintiliano Saldaña gave voice to the feeling on the gravity of the question at stake. Nonetheless, among the normative set of principles referring to this question, the congress voted that the favourable preventive-therapeutic results from castration achieved relative to sexual disorders in cases involving a leaning toward criminality, ought to cause all States to amend or supplement their respective laws, so as to facilitate the performance of such operations upon demand or with the consent of the person concerned, in order to free that person from a disordered sexual inclination which might bring in its train the committing of sexual crimes.117

Safeguarding the distinction between sterilization for eugenic reasons and castration, the congress further establishes that ‘compulsory castration may be coordinated with other measures of security provided by the existing law’, whereas ‘compulsory sterilization for eugenic reasons is a recommendable measure of prevention, as it will reduce in the future the number of abnormal persons from among whom criminals are recruited to a great extent’. The same resolution emphasized that these ‘protective measures’ should nonetheless be ‘justified by serious guarantees’, to be contemplated in national legislations and undertaken through a ‘thorough investigation of the case by a committee of jurists and medical men’.118 Upon the passing of the resolution, its irreducible opponents left the assembly in protest. If we look at the list of their names,119 we can observe that the approval of this resolution entailed a considerable number of countries to take an official position of protest. Significantly, these formed a belt that went from Central Europe to the Iberian Peninsula and included some Latin American countries. Together with the nature of the argumentation, this geographical pattern suggests a penal zone particularly susceptible to the influence of the Catholic Church. Let us now turn again to fascist Italy. Italian penologists had almost no expression in this debate. Silvio Longhi, their official speaker concerning this question, declared himself in favour of eugenic sterilization where this was carried out with consent, but thoroughly reproved compulsory sterilization and castration.120 Save for this report, no Italian intervened or took a position. In this respect, Italy can be put together with France and England, two other countries central to the Western juridical tradition that had no clear and relevant stand on the matter. The triumph of the most radical proposal can, to a large extent, be attributed to the fact that the congress was held in Germany, composed largely

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of German penologists and doctors, and to this demise of the central actors of the transnational penal arena. This takes us to an important point regarding the meaning of the debate on criminal eugenics in the Berlin IPPC of 1935. Although relatively marginal to the overall penitentiary debate then underway – as we saw, it was brought up as a derivation of the topic of the security measures – the division created in the congress general assembly constituted a crucial fracturing line in the project of the ‘universality of repression’. It is my hypothesis that this was not so much on account of a stark opposition to the most radical proposals in criminal eugenics, but of the different function desired for the repressive system in the respective societies and, accordingly, its connections with a more encompassing view of politics. The ambiguities of the Italian delegation on the issues of sterilization and castration of criminals, as well as those critical stands on the matter justified by the lack of scientific certainties, rather than by a principled reasoning, are expressive of the weight of these functional and political factors in the shaping of the position of the representatives of these countries in the debate. In practice, they complemented criticisms constructed on the basis of considerations about the dignity of persons. To be sure, the fracture revealed by the Berlin Congress cut across the relative consensus construed at the transnational plane around the topic of punishment since the 1870s. It did so not exactly in terms of basic, non-negotiable, juridical principles, but in a way that concerned the formulation proper of what legal historian Giovanni Tarello defined as the ‘penal question’.121 As a hypothesis, we can say that in Italy and in the countries identifying themselves with the model it represented, the penal question, departing from its classical enlightened/liberal terms of why and how to punish in a formally contractual society, was articulated as follows: why and how to punish in a substantially organic society? This did not imply the abandonment of the contractual fiction, but rather its refashioning in order to bring the irredeemable inequality among individuals and classes into the sphere of the state symbolic order. Nor did this reformulation of the penal question lead to a complete juridification of the space of repression. On the contrary, in Italy, aside from the political courts set up by the fascist regime, the juridical homologation of penitentiary discipline was accompanied by the expansion of an already existent space of no-law – the police sanctioning system. In reality, as we have seen in chapter 4, the police system of sanctions further expanded its function as a safeguard valve with regard to individuals considered not only harmful, but completely useless to society or, as in the medical idiom of Mussolini, viewed as ‘infecting agents’ of the ‘social body’.122 The emergence in the transnational scene, even if episodic, of the scheme regarding the connection of security police with the judicial sanctioning system, together with the institutional developments in the field of police observed in other cases in the early

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1930s, allow us to hypothesize that a similar phenomenon occurred in other countries belonging to Italy’s sphere of influence. The cases of Spain, with the sanctioning track created by the Ley de Vagos y Maleantes, and that of Portugal, where a similar sanctioning network was introduced with the creation of the Polícia de Segurança Pública, are striking examples of this.123 In other words, in a great many countries of the Western world, and independently of the political regime, the classical principle of legality underwent a profound revision and was refashioned to allow for more flexible institutions of repression. Thus, at least until the mid-1930s, instead of a sharply differentiated positioning with regard to the principle of legality – creating a supposed fissure between totalitarian and democratic penal systems – it is the approach to criminal eugenics that best captures the differences between penal projects and policies, Nazi Germany included. In this line of thought, Stefan Khül has provided a consistent argument on the mutual influences between German and American eugenicists in the interwar period, before and after the onset of Nazism.124 At the same time, it is certainly possible to oppose this axis – to which we can add some Nordic and other English-speaking countries – to that centred in France and the Napoleonic civilian tradition.125 However, as we come closer to the end of the decade, some fundamental differences, in terms of the classical principle of legality, between the penal systems of authoritarian regimes and other political models became more and more pronounced. Then, the Revue internationale de droit pénal published articles critical of the penal systems of ‘authoritarian’ or ‘totalitarian’ states. Émile Rappaport, for example, asserted the existence of a wide gap between the penal system of Nazi Germany and those of the other countries; and the French professor and state counsellor, Pierre de Casabianca, denounced the existence of ‘exceptional courts in totalitarian states’, a label he attributed to Italy and Germany.126 And in 1938, the French professor H. Donnedieu de Vabres published La politique criminelle des États autoritaires, an analysis of the Italian, the German and the Soviet penal policies virtually constituting the first systematic formulation of a juridico-penal fracture between democratic and authoritarian states. Here, however, Italy’s political approach to Germany and the growing tensions in Europe played an obvious role in this conceptualization. Interestingly enough, the divisions created by the different positions with regard to the principle of legality in the penal domain can also be observed in Italy, where calls for a break with the liberal tradition and the adoption of a penal philosophy similar to that of Nazism were now trying to make themselves heard.127

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Irreducible Inequalities, Differentiated Inclusion The above analysis of criminal codification in a transnational perspective sheds light on different textures of interwar right-wing experiments, allowing us to grasp some of their symbolic features, namely aspects of gender representations, fantasies of virility and fertility, imaginary relationships between the state and individuals, religious arguments, concepts of work and social class, the hierarchical nature of the body social and the perceived threatening agents of order. The meta-political and ethical plane constituted by these elements may provide new grounds to better understand similarities and differences between fascism and German National Socialism. Such differences are suggested, for example, by the different positioning of penal reforms in the Berlin IPPC of 1935, strongly invested by the Nazi authorities.Comparing the positions of the German and Italian speakers on the issue of work and living conditions of the prison population, Rusche and Kirchheimer stated that they amounted to ‘nothing more than the old principle that the living standard in the prisons must not be above the lowest level of that of the free population’.128 However, in light of the proceedings of the congress, this statement is not completely accurate. While it reflects the German position,129 it flattens and oversimplifies that of the Italian representatives. Although admitting a readjustment of the living conditions in prison in accordance with the variations of the living standards in free society, an important nuance characterized the position of the latter: The Italian report requires the adaptation of the life of prisoners to the requirements of hygiene. The number of calories needed for a healthy condition must be ensured. Treatment should be based on an individual biological method. The living standard of prisoners must match that of the free population groups to which they generally belong. In times of crisis, a reduction of the quality of life should be pursued only if the standard of living of the free population falls also, so as to guarantee that prisoners do not benefit from any privilege. One should, however, avoid a harshness that prisoners would suffer alone, because in that case there would be an unintended aggravation of sentences.130

In other words, the logic of a correspondence between the social structure and the structure of the penitentiary population also served as a grid to approach the question of the standard of life in prison. Eventually, the resolution adopted, although a softer version and despite the opposition of most speakers of other countries, was closer to the homogeneous treatment proposed by the Germans than to the differentiating principle defended by the Italians.131 In reality, an overall influence of Italian penology over this resolution can rather be found in the section concerning work. This impact is visible in the already mentioned differentiation of penitentiary work forms in order to render applicable the principles of the full employment of prisoners and of individualization in the execution of

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sentences. Indeed, although the reports from other countries also encouraged a diversification of penitentiary work, mainly in the sense of distancing it from industrial production and including agricultural and land improvement work, the terms of the above resolution encapsulate the main principles developed in Italy in this domain. And the concrete solution of putting prisoners to work on the improvement of insalubrious land was a practice that had been current, and codified, in the Italian peninsula for a long time.132 We can thus hypothesize that whenever moral, religious and even legal impediments halted governments from engaging in programmes of negative eugenics – namely in countries where the Catholic Church had a strong influence on the political and social elites, and which generally belonged to the civilian legal tradition – the idea of an irreducible biological differentiation of the body social appeared to be an inevitable point of departure, in contrast to those in which such impediments were weaker or absent. Thus, in the former cases, eugenics connected well with a strongly organic vision of society, the ‘natural’ differentiation of which would absorb and capitalize the irreducible ‘natural’ differences between individuals and between social classes. Such a project was to be carried out, among other forms of social control, through a ‘scientific’ orientation of persons to a professional activity, in which both the individual ‘natural’ skills and the economic needs of the society would serve as the main criteria. Emerging in the discourses of many penologists from Italy and other Latin countries, the worst danger to an orderly society in modern times was to be found in this ‘amorphous mass’ that could not be integrated within the organic social body and thus contribute to its optimum of production. We have seen how individualization of sanctions, besides the practical indeterminacy in their duration, actually meant, in the frame of the Italian penitentiary law, the differentiation of coercive labour, associated with a particular disciplinary regime. The analogies between this concept of penitentiary law and that which historians have singled out as ‘Latin eugenics’ are therefore quite striking, with the latter illuminating the political and economic dimension of the former. In the view of Latin eugenics and of the organic vision of the society that it shared with fascist ideology, penitentiary law emerges as a specific mode of dealing with the least profitable elements of society. Undoubtedly, at the time of its creation penitentiary law shared with fascism and eugenics the same pathos of optimizing all social forces available to the state. The old combination of contractual law and penitentiary discipline had long imploded, generating recidivism and proving unable to capture a non-negligible diversity of deviances, thus releasing great ‘social energies’ (to employ Pende’s concept). By substituting the old penitentiary with a penal city, the state could organize a much more efficient productive compound. In order to achieve this, the state entered the penitentiary space and endowed it with a properly juridical

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order. Penitentiary law was precisely the instrument allowing the state to proceed, at the most problematic level of society – the criminal and deviant worlds – with this unequal distribution of forces. Reinterpreted through these lenses, individuality, well integrated within the social organism and subjected to an intelligent principle identified in the state, was itself an economic value. Accordingly, its rights were to be secured. In this regard, it is highly significant that some of the last remarks in Pende’s Bonifica umana razionale were in the way of criticizing the ‘pretensions and utopias’ of obtaining a ‘pure race’ in Nazi Germany and in the United States of America. Pende, aside from the fact that he did not believe in a ‘pure race’, considered that the most important thing to do as a response to the crisis of his time was to fight the assault of the ‘amorphous mass’, which he actually considered to be more threatening to society than the existence of ‘abnormals’ and criminals.133 This reveals, not only the different kind of eugenics that Pende was advocating, compared to that defended in Germany and in the United States, but also the type of connection with penal coercion that he envisaged. Yet, more important here is the way in which this stand actually illuminates a way of responding to the problems of mass industrialized societies that crossed fascism and other corporatist views of the society, certain proto-welfare policies, as well as eugenics and the very organization of the penitentiary system. Emphasizing differentiated inclusion within the socio-economic compound, in this kind of ratio the individual body became the basic political unit. As such, it was insulated from further fragmentation.

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CONCLUSION

In the course of this study, I have argued that an approach to the criminal policy of the Italian fascist government from the standpoint of the international penal movement and, conversely, a perspective on the latter taking the former into account, sheds light onto significant aspects of both. This approach unveils, specifically, a shared history between penal Italy in the 1920s and the 1930s and institutional reform in other countries. In other words, there was a zone of intersection between the institutionalization of fascism in Italy and other processes of state reform in Europe. These processes involved various types of elements, ranging from political and juridical ideas to religious concepts, which formed both the perceptions of the socio-economic crisis of the period and the attempted responses. This configuration may be termed ‘transnational’, not merely in the sense of a perspective on a plurality of national scenes, but an actual zone of contact where agents from different national and institutional backgrounds interacted.1 Indeed, I argued that criminal policy under the rule of fascism, and the codification of the penal code in particular, form a relational configuration with the international penal movement and other national cases of penal reform. For the actors involved in this process in interwar Italy, the First World War signified a rupture with a time past and imposed more vigorous, qualitatively different, means of repression. However, these means of repression were to be found within the Italian ‘tradition’. The new system could thus be presented as revolutionary, but at the same time, and more than ever before, as being in tune with the Italian jurisprudential and penal history. The official rhetoric that accompanied the making of the penal code closely followed the key fascist idea of a ‘conservative revolution’. Because it echoed tradition and, at the same time, was well adapted to the new social and political conditions, the code was viewed as the expression of fascism. Therefore, the penal code was ‘politically revolutionary’, although the revolution in which it was rooted only aimed to enforce of an already existing order, one inscribed in the national juridical tradition. Although it is arguable that these topics were, to a large extent, part of the rhetorical devices of a regime that wanted to display an image of authority and force through an investment in the criminal field, it is, however, undeniable

– 171 –

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that some of the major elements of the regime’s ideology and functioning were present in the actual fabric of the code: the transfer of the legislative function to the executive power, the corporative rationale, the recurrent display of consensus and, we could add, the effort of emotional mobilization in order to prepare the way for a hardening of the state’s repressive action. In addition, it was argued that the penal code was vested with a major politico-symbolic function: that of synthesizing the values and core concepts, not of the fascist movement as such, but of fascism institutionalized as State. It was the case, namely, of the notion of the state as a private, transcendent, person, in a direct relationship with its subjects, of the encroachment of the law on territory hitherto viewed as moral and private and the definition of the enemies of the symbolic order thus construed. I also argued that, in the period being analysed, criminology became a political idiom. Understood as the ensemble of perceptions and discourses on crimes and criminals, criminology articulated the representation of an orderly society viewed as symmetrical to the disorderly world of crime and moral corruption. In addition, evolving into a totalizing perspective on society, including definitions of its political, ethical, moral and religious values, and subordinating the exercise of legitimate violence to their protection, criminal codification was crucial in the evolution of the historical self-definition of fascism and in delegitimizing the non-state remnants of fascism as a militant movement. Old and new at the same time, the fascist state broke, on the one side, with the classical model based on the dichotomy of accountable/unaccountable persons, with its institutional correspondence in that of the juridico-penal system versus the administrative system; and, on the other, with the positivist proposal of conflating the two poles of this dichotomy on the conceptual as much as on the institutional plane. Evolving from the responses to recidivism, concepts linked to the repetition of crimes – ‘habitual delinquents’, ‘professional delinquents’ and ‘delinquents by tendency’ – formed the central vector according to which the system of criminal justice was conceived. In Italy, in the domain of practices, these concepts were tightly linked to the security measures and, to a lesser extent, to the restoration of the death penalty and the differentiation of criminals according to their social status. The juridical articulation of these concepts, mainly based on the concepts of the individual and social dangerousness, generated a great cognitive potential of social reality in the penal system. We have seen how this aspect was reflected very specifically in the creation of an official criminological museum and in the making of the Dictionary of Criminology, both of which were structured as typical juridico-penal concepts. In addition, criminal codification gave the fascists an important momentum to organize political control of society. This was not only done from the standpoint of the state, but from that of the rule of law. Indeed, the making of the Rocco Code constituted an opportunity to link the core of the juridico-penal system

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with a few devices that had been formed at its margins, namely certain penitentiary regulations and police procedures. By establishing new and tighter links between the executive power and penal institutions, between these and police, the administration apparatus, welfare agencies, families and the local communities, the fascist state developed an institutional chain enabling the transcendent word of state law to descend and penetrate into novel zones of social life. In this sense it was argued that although the principle of legality was never overtly called into question, the concept of legality itself suffered important changes: rather than being referred to the political entities and the processes inherent to the creation of norms, legality now concerned the intervention of a judge in the coercive procedure. Magistrates were no longer to stand as mediators of the legislator’s will and the guardians of the political legitimacy of the system of penal norms, but to act as the actual purveyors of juridical legitimacy to the acts of force exercised in the name of the state. I have also argued that this concept of the legality principle was crucial for the development of penitentiary law, which emerged as the main legacy of the transnational configuration formed by Italy and the international penal movement. As Giorgio Agamben rightly observed with regard to the same period, sovereign power was no longer defined by the legitimacy and capacity of establishing the law (nomos), but of deciding on the connections of the human beings under his power with the constituted field of the law, that is, of inscribing the exception on the juridical corpus. In the steps of Carl Schmitt’s doctrine – contemporary with the construction of the fascist state – the exception to the law that is the management of the polarity law – no-law, rather than the constitution of the law or its total effacement, thus emerged as the actual mark of the sovereign.2 However, it is necessary to qualify Agamben’s statements by stressing that the concept of the law itself changed in its content and function: through the new role attributed to judges and the codified notions of security and police measures, the law became sufficiently open and malleable as to render its suspension unnecessary. Rather than being based on the possibility of a permanent state of exception as a response to threats on the social and political order, the fascist law fostered the ambition of anticipating all possible risks to order through the articulation of spaces of no-law by and within juridically legitimized institutions. Thus, in the wide leeway for decision on penal matters it opened for the sake of individualization and social defence, historically the fascist law presents itself as a law with no exceptions. Let us also highlight a crucial aspect related to the formation of penitentiary law, and therefore also constituting part of this legacy: the juridico-penal codification of a substantial inequality among persons. As we have seen, for specific historical reasons and also as part of the dynamics of the juridico-penal field, the fascist regime extended the domain of accountable persons. This had its clearest institutional realization in the so-called ‘double-track system’ (of penal-

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ties and security measures), which relied on the judicial judgment regarding the moral corruption of one’s soul (or psyche). Placed at the core of the penal system, psychological judgments facilitated the articulation of the juridico-penal and administrative-penal procedures, both of which were at the core of the modern state. The opposition of these two worlds was noted in Italian juridical scholarship. Pietro Nuvolone, for example, referring particularly to the double-track system, observed a stark contrast between ‘the world of values and the world of nature, the realm of freedom and that of necessity’.3 The world of values stood, of course, for the penal sphere proper, while that of nature and necessity amounted to complex security measures. Whereas this scheme was already present in the classical dichotomy responsibility/irresponsibility, it was now articulated within the domain of responsible persons. This generated a sort of universe of the ‘abnormal’ within that of ‘normal’ persons. Additionally, hitherto implemented by means of a medical diagnosis that subtracted the irresponsible persons from the juridico-penal field, this binary scheme was now to be articulated through a judicial judgment. As we have seen, this was rendered possible by the translation of the biological and social determinants formulated by the late-nineteenth-century criminal anthropology into a psychological idiom with strong moral and theological overtones. Thus countering the secularizing movement implied by both the classical view of the individual defined by his free will and the positivist exculpating etiology of the criminal, ‘embodied evilness’ became a central category in criminal codified law. This was most evident in the concept of the ‘delinquent by tendency’, which appears particular to the Italian case. Nonetheless, the notion of ‘embodied evilness’ permeated other juridical categories, which resisted the Second World War and probably influenced certain welfare penal systems in the second half of the twentieth century.4 Representing the state in the face of the threat posed by the criminal, judges became entitled to pronounce sentences with little sense of social reflexivity and to condemn persons to various circles of earthly hell and purgatories.5 The transnational construction and propaganda of Italy as a penal model shows that, in a good number of countries, criminology and penal codification served a comparable politico-symbolic purpose, sometimes cutting across different political regimes, as the Spanish and Portuguese cases suggest. Shared by agents positioned at different points of the political spectrum, criminological concepts such as ‘social defence’ and ‘delinquents by tendency’, which, in the past, were subject to political, moral and religious dispute, now formed the ethical, or meta-political, grounds on which the reform of the liberal state became thinkable. It is only by looking at the various positions with regard to the question of eugenics that we can trace clear political and ideological lines within the penal domain. Lastly, for many reformers the ‘penitentiary city’ became the ideal image of this newly ordered, total, social space, emerging as a zone of intersection between

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the forces of the state and those of untamable deviancy defined by criminology. Placed between these forces, a set of mediations, conceived in scientific and juridical terms, was to allow the production of a political and economic utility. Behind the juridical reconnection operated by penitentiary law between the sovereign state and the criminal lay the idea that society should profit from the forces contained by its outcasts. Applied to the fascist state, it is easy to recognize a similar pathos in the episodes in which Mussolini faced his attempted murderers, namely that carried out by Violet Gibson in the course of which he was wounded in the nose. Eventually the duce found momentum in the attempts of 1925 and 1926 to strengthen his charisma and the institutionalized power of the fascist regime. In the case of Gibson’s attempt, Mussolini also showed how, in the face of danger, he embodied state force by responding through the language of both science and the law.

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NOTES

Introduction 1.

2. 3. 4. 5.

6. 7. 8. 9. 10.

11.

12. 13. 14.

E. Ferri, ‘Il Progetto Rocco di Codice Penale Italiano. Prolusione, detta il 22 novembre 1927 nell’Aula Magna dell R. Università di Roma’, in E. Ferri, Principii di diritto criminale. Delinquente e delito nella scienza, legislazione, giurisprudenza in ordine al Codice penale vigente – Progetto 1921 – Progetto 1927 (Turin: UTET, 1928), p. 825. R. D. Felice, Mussolini il fascista. L’organizzazione dello Stato fascista, 1925–1929 (Turin: Einaudi, 1995 [1968]), pp. 200–1. E. Ferri, ‘La personnalité de Mlle. Violet Gibson, qui, le 7 avril 1926, blessa par un coup de revolver Benito Mussolini’, Revue internationale de droit pénal, 3:3 (1927), pp. 230–8. Ibid., p. 238. In 1984 Richard O. Collin published a study on Violet Gibson with the original title The Irish Baron’s Daughter and Mussolini’s Nose, translated into Italian as La donna che sparò a Mussolini and published in 1988. On the medical diagnosis during this process, see R. O. Collin, La donna che sparò a Mussolini (Milan: Rusconi, 1988), p. 114. Ferri, ‘Il Progetto Rocco di Codice Penale Italiano’, p. 825. Ferri, ‘La personnalité de Mlle. Violet Gibson’, p. 230. See also Collin, La donna che sparò a Mussolini, pp. 10–11 and p. 93. Ferri, ‘Il Progetto Rocco di Codice Penale Italiano’, p. 810. Ibid., p. 813. My translation of: ‘sono le leggi penali espressione più diretta del potere statale … ed è nozione elementare per tutti, indiscussa nella dottrina’. A. Rocco, ‘Gerarchia’, September 1927, quoted by B. Franchi, ‘Estratto del Bollettino dell’Amministrazione carceraria, Roma, 1 gennaio 1928’, p. 1, Archivio Centrale dello Stato, Rome, Ministerio di Grazia e Giustizia. Gabinetto (hereafter ACS MGG.G), busta (envelope) 7, fascicolo (file) 2, sottofascicolo (subset) 8 (hereafter, respectively, b., f., sf.). Similar ideas were expressed recently by historians of the penal system. See G. Neppi Modona and M. Pelissero, ‘La politica criminale durante il fascismo’, in L. Violante (ed.), Storia d’Italia. Annali, 12 (Turin: Einaudi, 1997), pp. 759–849, on p. 780. ‘Relazione generale dell.’On. Mariano d’Amelio’, in Lavori preparatori del codice penale e del codice di procedura penale, vol. 1 (Rome: Ministero della Giustizia e degli Affari di Culto, 1928), p. 184. Ferri, ‘Il Progetto Rocco di Codice Penale Italiano’, p. 813. Ibid., p. 813–14. G. Neppi Modona describes this process as a ‘rescue operation’ conducted by the academic establishment, which was faced by the predisposition of politicians to eliminate – 177 –

178

15.

16.

17.

18.

19. 20. 21. 22. 23.

24.

Notes to pages 7–10 the clearest ideological references to fascism from the Penal Code. The double-track system, for example, was maintained, and its special part suffered very few modifications. See G. Neppi Modona, ‘Tecnicismo e scelte politiche nella riforma del codice penale’, in Democrazia e diritto, 4, 17:4 (1977), pp. 661–84, on p. 674. G. Amato, Individuo e autorità nella disciplina della libertà personale (Milan: Dott. A. Giufrrè, 1967), pp. 261–2; M. Sbriccoli, ‘Dissenso politico e diritto penale in Italia tra Otto e Novecento’, in Quaderni fiorentini per la storia del pensiero giuridico moderno, 2 (1973), pp. 607–702; Neppi Modona, ‘Tecnicismo e scelte politiche’, pp. 666–9; G. Neppi Modona, ‘Legislazione penale’, in F. Levi, U. Levra and N. Tranfaglia (eds), Storia d’Italia. Annali, 2 (Florence: La Nuova Italia, 1978), pp. 584–607, on pp. 591–4; E. R. Papa, ‘Criminologia e scienze sociali nel dibattito europeo sulla “scuola italiana” di antropología criminale (1876–1900)’, in E. R. Papa (ed.), Il positivismo e la cultura italiana (Milan: Franco Angeli, 1985), pp. 15–45, on pp. 39–45; G. Neppi Modona, ‘Diritto penale e positivismo’, in E. R. Papa (ed.), Il positivismo e la cultura italiana (Milan: Franco Angeli, 1985), pp. 47–61, on pp. 59–61; R. Treves, ‘Il rinnovato interesse per il socialismo giuridico in Italia’, in Papa (ed.), Il positivismo e la cultura italiana, pp. 391–403. G. Fiandaca, ‘Il codice Rocco e la continuità istituzionale in materia penale’, in La questione criminale, 7:1 ( January–April 1981), pp. 67–88, on p. 68; T. Padovani, ‘La sopravivvenza del codice Rocco nella “Età della decodificazione”’, in La questione criminale, 7:1 ( January–April 1981), pp. 89–98, on p. 91; M. A. Cattaneo, ‘Il codice Rocco e l’eredità illuministico-liberale’, in La questione criminale, 7:1 ( January–April 1981), pp. 99–110, on p. 102; P. Marconi, ‘Codice penale e regime autoritario’, in La questione criminale, 7:1 ( January–April 1981), pp. 129–37, on p. 131; C. Ghisalberti, La codificazione del diritto in Italia. 1865–1942 (Bari: Laterza, 1985), pp. 224–6. M. Sbriccoli, ‘La penalistica civile. Teorie e ideologie del diritto penale nell’Italia unita’, in A. Schiavone (ed.), Stato e cultura giuridica in Italia dall’unità alla repubblica (Rome and Bari: Laterza, 1990), pp. 147–232, on p. 226; C. Guarnieri, ‘L’ordine pubblico e la giustizia penale’, in R. Romanelli (ed.), Storia dello Stato italiano dall’Unità a oggi (Rome: Donzelli editore, 1995), pp. 365–405, on pp. 389–92; P. Costa, ‘La giuspubblicistica dell’Italia unita: il paradigma disciplinare’, in R. Romanelli (ed.), Storia dello Stato italiano dall’Unità a oggi (Rome: Donzelli editore, 1995), pp. 89–145, on p. 127. M. Sbriccoli, ‘Le mani nella pasta e gli occhi al cielo. La penalistica italiana negli anni del fascismo’, in Quaderni fiorentini per la storia del pensiero giuridico, 28 (1999), pp. 817–50, on p. 828; Neppi Modona and Pelissero, ‘La politica criminale durante il fascismo’; M. Sbriccoli, ‘Caratteri originari e tratti permanenti del sistema penale italiano’, in L. Violante and L. Minervini, Storia d’Italia. Annali, 14 (Turin: Einaudi, 1998), pp. 487–551. P. Lascoumes, P. Poncela and P. Lenoël, Au nom de l’ordre. Une histoire politique do code pénal (Paris: Hachette, 1989), p. 11. Ibid., pp. 74–6. Ibid., p. 174. Ibid., p. 85; p. 196. Several legal historians of the time of the fascist codification actually voiced this idea. See, for example, G. Allegra, Dell’abitualità criminosa nel codice penale vigente. Parte speciale (Milan: Casa Editrice Francesco Vallardi, 1933), p. 72; and U. Spirito, Storia del diritto penale italiano, vol. 2 (Rome: C. De Alberti, 1925), p. 172. P. Costa, Lo stato immaginario. Metafore e paradigmi nella cultura giuridica italiana fra ottocento e novecento (Milan: Giuffrè Editore, 1986), p. 6.

Notes to pages 10–18

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25. As Lindsay Farmer puts it, ‘the law is always also a process of representation – it can never lose its metaphorical character. Just as maps recreate space by the use of imaginary or scientific devices, the law, in the form of doctrine or academic treatises, must be capable of representing itself ’. In Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law, 1747 to the Present (Cambridge: Cambridge University Press, 1997), p. 2. 26. A. A. Kallis, ‘Studying Inter-War Fascism in Epochal and Diachronic Terms: Ideological Production, Political Experience and the Quest for Consensus’, in European History Quarterly, 34:1 (2004), pp. 9–42, on p. 11.

1 The Science of Crime 1.

2. 3. 4. 5.

6. 7.

8. 9.

10. 11. 12. 13.

G. Tarello, Storia della cultura giuridica moderna (Bologna, Il Mulino, 1974), p. 20; G. Tarello, Cultura giuridica e politica del diritto (Bologna, Il Mulino, 1988), pp. 41–2. Also on the characterization of modern legal codes, Pierre Lascoumes et al. observed that, despite the existence of earlier compilations of laws (some of them actually designated as penal codes), as well as projects of codification and proposals for the classification of offenses, these generally had a private character and, at any rate, were not provided with the ‘force of law’. Moreover, these texts also inventoried offenses for which there was no incriminating legal text but which could, in practice, originate a penal process. In other words, the principle of legality, crucial within the set of values that the form of code sought to guarantee, wasn’t yet the fundament of the penal order implied by these texts. In the authors’ view, this aspect allows us to trace a dividing line between them and the modern codes. Lascoumes, Poncela and Lenoël, Au nom de l’ordre, pp. 35–7. U. Petronio, ‘Book review of G. Tarello, Storia della cultura giuridica moderna (Bologna: Il Mulino, 1974, pp. 651)’, in Quaderni fiorentini, 7 (1978), pp. 500–8. On the notion of ‘juridical particularism’, see Tarello, Storia della cultura giuridica moderna, pp. 28–9. Ibid., p. 37. Ibid., p. 382. On the penal question see also M. Sbriccoli, ‘Giustizia criminale’, in M. Fioravante (ed.), Lo Stato moderno in Europa. Istituzioni e diritto (Bari and Rome: Laterza, 2002), pp. 163–205, on pp. 193–4. Lascoumes, Poncela and Lenoël, Au nom de l’ordre, pp. 44–6. This formula was coined by jurist Paul Johann Feuerbach (1775–1833), who was born in Jena and was the author of the project for the penal code of Bavaria, which served as a model for several countries during the nineteenth century. Lascoumes, Poncela and Lenoël, Au nom de l’ordre, p. 106. M. Foucault, ‘L’évolution de la notion d’ “individu dangereux” dans la psychiatrie légale du XIXe siècle’, in Dits et écrits, vol. 3 (Paris: Gallimard, 1978/1994), pp. 443–64, on p. 463. On this see also F. Ewald, L’État providence (Paris: Bernard Grasset, 2001), pp. 411–12. Foucault, ‘L’évolution de la notion d’ “individu dangereux”’, pp. 451–2. Code pénal de 1810, in appendix to Lascoumes, Poncela and Lenoël, Au nom de l’ordre, pp. 371–94. M. D. Dubber, ‘The Right to be Punished: Autonomy and its Demise in Modern Penal Thought’, in Law and History Review, 16:1 (1998), pp. 113–46, on pp. 113–15. My translation of: ‘Così l’uomo è normale od anormale per l’effetto della penalità. Normale, quando prevalgono i caratteri dell’uomo sociale; anormale, quando prevalgono, comunque, i caratteri contrarii’. U. Conti, ‘La pena e il sistema penale del codice ital-

180

14.

15. 16. 17.

18. 19. 20. 21. 22. 23. 24.

25. 26. 27. 28. 29. 30.

31. 32.

33.

Notes to pages 18–23 iano’, in E. Pessina (ed.), Enciclopedia del diritto penale italiano, vol. 4 (Rome, Milan and Naples: Società Editrice Libraria, 1909), p. 20. P. Becker, ‘The Criminologists’ Gaze at the Underworld: Toward an Archaeology of Criminological Writing’, in P. Becker and R. F. Wetzell (eds), Criminals and their Scientists: The History of Criminology in International Perspective (Cambridge: Cambridge University Press, 2006), pp. 105–33, on p. 113, 126. Tarello, Storia della cultura giuridica moderna, p. 383. P. Rosanvallon, Le modèle politique français. La société civile contre le jacobinisme de 1789 à nos jours (Paris: Editions du Seuil, 2005), pp. 89–105. L. Farmer, ‘Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833–45’, in Law and History Review, 18:2 (2000), pp. 397–425, on pp. 405–7. Ibid., p. 409. Ibid., pp. 411–16. P. Prodi, Uma história da justiça. Do pluralismo dos tribunais ao moderno dualismo entre a consciência e o direito (Lisboa: Estampa, 2002), pp. 403, 436. Lascoumes, Poncela and Lenoël, Au nom de l’ordre, pp. 40, 85. L. Benadusi, Il nemico dell’uomo nuovo. L’omosessualità nell’esperimento totalitario fascista (Milan: Feltrinelli, 2005), pp. 97–8. Prodi, Uma história da justiça, pp. 448–51; T. Pires Marques, Crime e castigo no liberalismo em Portugal (Lisboa: Livros Horizonte, 2005), pp. 104–6. C. F. Grosso, ‘Le grandi correnti del pensiero penalistico italiano tra Ottocento e Novecento’, in L. Violante (ed.), Storia d’Italia. Annali, 12 (Turin: Einaudi, 1997), pp. 7–34, on p. 10; and T. Padovani, ‘La tradizione penalistica toscana nel codice Zanardelli’, in S. Vinviguerra (ed.), I codici preunitari e il codice Zanardelli (Padova: CEDAM, 1999), pp. 397–408, on p. 401. F. Carrara, Programma del corso di diritto criminale, vol. 1, 6th edn (Lucca: Tip. Canovetti, 1886), pp. 52–4. P. Bourdieu, ‘La force du droit. Eléments pour une sociologie du champ juridique’, in Recherches en sciences sociales, 64 (September 1986), p. 3. A. M. Hespanha, Cultura jurídica europeia. Síntese de um milénio (Mem Martins: Publicações Europa América, 2003), p. 248. Conti, ‘La pena e il sistema penale del codice italiano’, p. 750. G. A. Van Hamel, ‘Report’, in Bulletin de l’union internationale de droit pénal, 4 (1894), pp. 275–6. On the police system of sanctions, the book by G. Corso, L’ordine pubblico (Bologna: Il Mulino, 1979) still constitutes an invaluable reference. See also Amato, Individuo e autorità nella disciplina della libertà personale, pp. 288 and following; G. Fiandaca, ‘Misure di prevenzione (profili sostanziali)’, in Digesto delle Discipline Penalistiche, 8 (Turin: UTET, 1994), pp. 108–25; Neppi Modona and Pelissero, ‘La politica criminale durante il fascismo’, pp. 773–6; pp. 795–7; M. Gibson, Born to Crime: Cesare Lombroso and the Origins of Biological Criminology (Westport, CT: Praeger, 2002), pp. 152–61. Fiandaca, ‘Misure di prevenzione’, pp. 108–9. The project Bonsai (17/11/1899), the project Gianturco (22/11/1900), the project Ronchetti (30/1/1904), the project Luzzatti (19/10/1901) and the Ferri project of 1921. See Alfredo Rocco, La Trasformazione dello stato. Dallo Stato Liberale allo Stato Fascista (Roma: La Voce, 1927), p. 231. See below, pp. 102–8, 132–3.

Notes to pages 23–8

181

34. The Bill of 21 April 1892 on vagrants and recidivists, see Pires Marques, Crime e Castigo no Liberalismo em Portugal, pp. 123–4. 35. Pires Marques, Crime e Castigo no Liberalismo em Portugal, p. 66. 36. F. Cadalso y Manzano, Iniciativas penitenciarias en España. Conferencia pronunciada el día 27 de Abril de 1926 (Madrid: Imprenta de Julio Cosano, 1926), p. 11. 37. At least twelve penitentiaries were built after the Madrid model prison. See P. Trinidad Fernández, La defensa de la sociedad. Cárcel y delincuencia en España (siglos XVIII–XX) (Madrid: Alianza Editorial, 1991), pp. 183, 186. 38. J. Soler y Labernia, Nuestras cárceles, presidios y casas de corrección (Madrid: Imp. De Gabriel del Horno, 1906), p. 143. 39. Q. Saldaña, La Reforma de los Jóvenes delincuentes en España (Madrid: Imprenta del Asilo de Huérfanos, 1925), p. 19. 40. M. Paz Alonso and A. M. Hespanha, ‘Les peines dans les pays ibériques (XVIIe–XIXe siècles’, in Transactions of the Jean Bodin Society, 3ème partie, Europe depuis le XVIIIe siècle (Brussels: De Boeck Université, 1989), pp. 195–225, on p. 214. 41. On the Spanish penitentiary system in this period see Soler y Labernia, Nuestras cárceles, presidios y casas de corrección, p. 114. The importance of criminal anthropology in Spain is attested to by a significant number of studies. See, for example, L. Maristany, El gabinete del doctor Lombroso (Delincuencia y fin de siglo en Espãna) (Madrid: Editorial Anagrama, 1973), pp. 84–91; F. Alvarez-Uría, Miserables y locos. Medicina mental y orden social en la España del siglo XIX (Tusquets Editora, 1983), pp. 217–21; and Trinidad Fernández, La defensa de la sociedad, p. 266. For a synthesis of the Portuguese context, see T. Pires Marques, Crime e castigo no liberalismo em Portugal, pp. 114–19. 42. Pires Marques, Crime e castigo no liberalismo em Portugal, pp. 119–22. 43. Conti, ‘La pena e il sistema penale del codice italiano’, p. 761. 44. B. Schnapper, Voies Nouvelles en Histoire du Droit. La justice, la famille, la répression pénale (XVIème–XXème siècles) (Paris: Presses Universitaires de France, 1991), pp. 313– 53. On mass recidivism as the main penal problem of late liberalism, see also D. Garland, Punishment and Welfare: A History of Penal Strategies (Aldershot and Brookfield: Gower House, 1987), pp. 61–6. 45. W. Tallack, Les congrès pénitentiaires internationaux et les progrès qui s’y rattachent ([s.n.], [s.l.], [s.d.] [early 1900s]), pp. 2–3. 46. Ibid., pp. 1–6. 47. See J. da Silva Matos, Reforma Penitenciaria. Passado e Presente (Lisbon: [s.n.], 1885), p. 12–13; J.-G. Petit, Ces peines obscures. La prison pénale en France 1780–1875 (Paris: Fayard, 1990), p. 137. 48. C. J. A. Mittermaier, ‘Observations Préliminaires’, Débats du Congrès Pénitentiaire de Francfort-sur-le-Mein, 28, 29 et 30 septembre 1846 (Paris: Imprimerie de E. Marc-Aurel, 1847), p. viii; Van Meenen, ‘Discours d’ouverture’, Débats du Congrès Pénitentiaire de Bruxelles. Session de 1847. Séances des 20, 21, 22 et 23 septembre (Paris: Imprimerie de E. Marc-Aurel, 1847), p. 23. 49. Mittermaier, ‘Observations Péliminaires’, p. viii. 50. N. Johnston, The Human Cage: A Brief History of Prison Architecture (New York: Walker and Company, 1973), p. 34. 51. Pires Marques, Crime e castigo no liberalismo em Portugal, pp. 82–3. 52. J.-L.-E. Ortolan, Cours de législation pénale comparée. Introduction historique. Histoire du droit criminel en Europe depuis le XVIIIe siècle jusqu’à ce jour. Analyse du cours de 1839– 1840 (Paris: Joubert, 1841), pp. 279–80.

182

Notes to pages 29–32

53. E. Pears, ‘Preface’, in E. Pears (ed.), Prisons and Reformatories at Home and Abroad: The Transactions of the International Penitentiary Congress Held in London July 3–13, 1872 (London: Longmans, Green, and Co., 1872 – Nendeln/Liechenstein, Klaus Reprint, 1979), p. xiv. 54. Pears, ‘Preface’, p. xiii. 55. Ibid., p. xv. 56. E. Delaquis (ed.), ‘L’œuvre de la Commission Internationale Pénale et Pénitentiaire. 1872–1942’, in Bulletin de la Commission internationale pénale et pénitentiaire. Recueil de Documents en Matière Pénale et Pénitentiaire, publié par … (Berne: Staempfli & Cie., 1942), p. 119. 57. Ibid., pp. 57–8. 58. Nonetheless, the congress of 1901 had a very significant presence of jurists. See M. Kaluszynski, ‘The International Congress of Criminal Anthropology: Shaping the French and International Criminological Movement, 1886–1914’, in P. Becker and R. F. Wetzell (eds), Criminals and their Scientists, pp. 301–16, on p. 312. 59. M. Kaluszynski, ‘Identités professionnelles, identités politiques: médecins et juristes face au crime au tournant du XIXème et du XXème siècle’, in L. Mucchielli (ed.), Histoire de la Criminologie Française (Paris: Harmattan, 1994), pp. 215–33, 228. 60. L. Radzinowicz and R. Hood, History of English Criminal Law, vol. 5, The Emergence of Penal Policy (London: Stevens and Sons, 1986), p. 20. 61. See L. Radzinowicz, The Roots of the International Association of Criminal Law and their Significance: A Tribute and a Reassessment on the Centenary of the IKV (Freiburg: MaxPlanck-Institut für ausländisches und internationales Strafrecht, 1991), p. 9. 62. Ibid., pp. 20–1. 63. In Cincinnati (1870) and Washington (1910). This is salient during the debates in the following congress, in London (1872). See Pears (ed.), Prisons and Reformatories at Home and Abroad; L.-C. Guillaume and E. Borel, Actes du Congrès Pénal et Pénitentiaire International de Washington. Octobre 1910, publiés a la demande de la Commission Pénitentiaire Internationale, vol. 1 (Budapeste and Berne: Bureau de la Commission Pénitentiaire Internationale, 1913, Nendeln/Liechenstein, Klaus Reprint, 1979). 64. Conti, ‘La pena e il sistema penale del codice italiano’, p. 761. 65. Garland, Punishment and Welfare, pp. 18–27, 242. 66. A. Marucci, ‘Misure di sicurezza (Teoria)’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 2 (Milan: Casa Editrice Dottor Francesco Vallardi, 1943), pp. 560–3, on p. 560. 67. My translation of: ‘L’Union estime que le système actuel concernant la répression des récidivistes est défectueux en principe et absolument insuffisant pour combattre la récidive. Parmi les défectuosités de ce système elle signale surtout: 1 – le manque de classification, l’uniformité du traitement des délinquants d’habitude et des délinquants d’occasion; 2 – l’abus des peines trop courtes, qui a pour effet que les récidivistes rentrent dans la société sans que celle-ci soit protégée d’une façon suffisante.This recommendation was adopted by unanimity.’ Anonymous report, in Bulletin de l’union internationale de droit pénal, 1 (1889), p. 170. 68. G. A. Van Hamel, ‘Report’, in Bulletin de l’union internationale de droit pénal, 1 (1889), p. 102. 69. ‘Question’, in Bulletin de l’union internationale de droit pénal, 2 (1890), p. 24.

Notes to pages 33–7

183

70. ‘Recommandations’, in Bulletin de l’union internationale de droit pénal, 3 (1892), pp. 324–5. 71. ‘Questions’, in Bulletin de l’union internationale de droit pénal, 4 (1894), p. 35; and ‘Report’, in Bulletin de l’union internationale de droit pénal, 5 (1896), p. 170. 72. G. A. Van Hamel, ‘Report’, in Bulletin de l’union internationale de droit pénal, 3 (1892), pp. 295–305, on pp. 297–304. 73. Van Hamel, ‘Report’, in Bulletin de l’union internationale de droit pénal, 4 (1894), pp. 266–7. 74. Ibid., p. 268. 75. Ibid., pp. 274–8. 76. R. F. Wetzell, Inventing the Criminal: A History of German Criminology, 1880–1945 (Chapel Hill, NC, and London: The University of North Carolina Press, 2000), pp. 77–8; R. F. Wetzell, ‘From Retributive Justice to Social Defense: Penal Reform in Finde-Siècle Germany’, in S. Marchand and D. Lindenfeld (eds), Germany at the Fin de Siècle: Culture, Politics, and Ideas (Baton Rouge, LA: Louisianna State University Press, 2004), pp 59–80, on pp. 72–3. 77. A. Prins, ‘Report’, in Bulletin de l’union internationale de droit pénal, 4 (1894), pp. 287– 312, on pp. 289–90. 78. Ibid., pp. 292–4. 79. Anonymous report on the debate, in Bulletin de l’union internationale de droit pénal, 4 (1894), pp. 366–76, on p. 376. 80. A. Gautier, ‘Report’, in Bulletin de l’union internationale de droit pénal, 5 (1896), pp. 62–6, on p. 63. 81. Conti, ‘La pena e il sistema penale del codice italiano’, p 700. This law was also discussed in the IKV. See anonymous report, in Bulletin de l’union internationale de droit pénal, 20 (1913), pp. 401–16, on p. 402. 82. For a detailed discussion of these changes in the IKV during this decade, see Wetzell, Inventing the Criminal, pp. 79–90. 83. Conti, ‘La pena e il sistema penale del codice italiano’, p. 704. 84. Resolutions in Actes du Congrès Pénal et Pénitentiaire International de Washington. Octobre 1910, vol. 1 (1979), p. 440. 85. Anonymous report in Bulletin de l’union internationale de droit pénal, 20 (1913), pp. 401–27, on p. 401. 86. Ibid., pp. 518–20. 87. My translation of: ‘il n’est pas douteux qu’au cours du XIXème siècle ce danger social a fait l’objet d’une prise de conscience, d’un mûrissement tel que depuis la première guerre mondiale le problème paraît posé dans des termes immuables’. Schnapper, Voies Nouvelles en Histoire du Droit, p. 313. 88. Actes du premier Congrès International d’Anthropologie Criminelle. Biologie et Sociologie. (Rome, novembre 1885) (Turin, Rome and Florence: Bocca Frères, 1886–7). 89. ‘Catalogue des pièces composant la première exposition internationale d’anthropologie criminelle’, in Actes du premier Congrès International d’Anthropologie Criminelle, p. 502. 90. E. Ferri, ‘Conclusions des rapporteurs. Section de Biologie de Criminelle. En quelles catégories doit-on diviser les délinquants et par quels caractères essentiels, organiques et psychiques, peut-on les distinguer? Rapport de …’, in Actes du premier Congrès International d’Anthropologie Criminelle, p. 10. 91. My translation of: ‘Tous les criminels, quel que soit leur type anthropologique, présente ce caractère psychologique commun: qu’ils ont une anormale impulsivité d’action par

184

Notes to pages 38–41

absence ou faiblesse de résistance aux impulsions délictueuses, internes ou externes; impulsivité anormale qui peut dériver ou d’une dégénération héréditaire (congenita) ou d’une condition psychopathologique successive, ou d’une perturbation psychique transitoire, plus ou moins violente. Entre les cinq principaux types de criminels, il n’y a pas de séparation absolue et, par conséquent, il y a des types intermédiaires; et l’on va, par une sorte de gradation circulaire, du criminel instinctif au criminel d’habitude, au criminel d’occasion, au criminel passionné, au criminel aliéné, avec des ressemblances entre ces types, raison de leur contiguité dans cette échelle anthropologique.’ Ferri, ‘Conclusions des rapporteurs. Section de Biologie de Criminelle’, pp. 9–10. 92. R. Villa, Il deviante e i suoi segni. Lombroso e la nascita dell’antropologia criminale (Milan: F. Angeli, 1985), p. 217. 93. ‘Catalogue des pièces composant la première exposition internationale d’anthropologie criminelle’, in Actes du premier Congrès International d’Anthropologie Criminelle, pp. 502–7. 94. S. Regener, ‘Criminological Museums and the Visualization of Evil’, in Crime, History and Societies, 7:1 (2003), pp. 43–56, quoted by M. Gibson and N. H. Rafter, ‘Introduction’, in C. Lombroso, Criminal Man, trans. and intro. M. Gibson and N. H. Rafter (Durham, NC, and London: Duke University Press, 2006). p. 27. 95. See G. Colombo, La scienza infelice: Il museo di antropologia criminale di Cesare Lombroso (Turin: Bollati Boringheri, 2000 1975), p. 10. 96. C. Lombroso, ‘De l’épilepsie et de la folie morale dans les prisons et dans les asiles d’aliénés’, in Actes du premier Congrès International d’Anthropologie Criminelle, pp. 18–19. 97. M. Foucault, Les anormaux. Cours au Collège de France. 1974–1975 (Paris: Gallimard/ Seuil, 1999), p. 208. 98. A good synthesis of Lombroso’s classification of criminal types, including its evolution over the five editions of L’uomo criminale, can be found in Gibson and Rafter, ‘Introduction’, Criminal Man, on pp. 9–12. 99. C. Lombroso and G. Ferrero, Criminal Woman, the Prostitute, and the Normal Woman, trans. and intro. M. Gibson and N. H. Rafter (Durham, NC, and London: Duke University Press, 2004), p. 238. 100. Lombroso, ‘De l’épilepsie et de la folie morale dans les prisons et dans les asiles d’aliénés’, p. 18. 101. A full chapter in the 4th edition of Criminal Man entitled ‘Physiology and Etiology of Epilepsy’ accounts well for this centrality. Lombroso, Criminal Man, pp. 260–6. 102. Lombroso developed these ideas into a theory of ‘hidden epilepsy’ (epilessia larvata) in his 4th edition of Criminal Man. As Mary Gibson also observes, ‘epilepsy became a universal substructure of all criminal behavior, enveloping both moral insanity and atavism’. See Gibson, Born to Crime, pp. 25–6.

2 Italy and the Universality of Repression 1.

2.

On this, see for example, D. Pick, Faces of Degeneration: A European Disorder, c. 1848–c. 1918 (Cambridge: Cambridge University Press, 1989); M.-C. Leps, Apprehending the Criminal: The Production of Deviance in Nineteenth Century Discourse (Durham, NC, and London: Duke University Press, 1992); Gibson, Born to Crime; M. Gibson, ‘Cesare Lombroso and Italian Criminology: Theory and Politics’, in P. Becker and R. F. Wetzell (eds), in Criminals and their Scientists, pp. 137–58. Villa, Il deviante e i suoi segni, p. 21.

Notes to pages 41–9 3. 4.

5. 6.

7. 8. 9.

10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30.

31.

185

D. Frigessi, Cesare Lombroso (Turin: Einaudi, 2003), p. xiii. On the false antagonism between the Italian and the French schools, see L. Mucchielli, ‘Naissance et déclin de la sociologie criminelle (1880–1940)’, in L. Mucchielli (ed.), Histoire de la Criminologie Française (Paris: Harmattan, 1994), pp. 287–312, on pp. 287–94. See E. Ferri, Sociologia Criminale, Quinta edizione riveduta ed ampliata. Com note a cura di Arturo Santoro, vol. 1 (Turin: Utet, 1929), pp. 2–13. See E. Ferri, Giustizia penale e Giustizia sociale. Prolusione al corso di Diritto e Procedura Penale detta nell’Aula Magna dell’Università di Roma il 12 gennaio 1911 (Rome: [s.n.], [s.d.]), p. 29; and E. Ferri, Lezioni di Diritto e Procedura Penale Raccolte stenograficamente nella R. Università di Roma. Anno Accademico 1925–1926 (Rome: [s.n.], 1927), p. xi. Villa, Il deviante e i suoi segni, pp. 14–16 and p. 207. The issue of the ‘penal substitutes’ was developed at length in his masterwork. See Ferri, Sociologia Criminale, vol. 1, pp. 472–552. For example, Romagnosi and Francesco Poletti. See Villa, Il deviante e i suoi segni, p. 210. The relations between criminal anthropology and positivist penology are addressed in Frigessi, Cesare Lombroso, pp. 197–207; and Gibson, Born to Crime, pp. 12–18, 34–8 and 210–1. Ferri, Sociologia Criminale, vol. 1, p. xx. Ferri, Lezioni di Diritto, p. iv. Ibid., p. xix. Ferri, Giustizia penale, pp. 7–9. Ibid., p. 7. E. Ferri, Progetto preliminare di codice penale italiano per i delitti (libro I). Relazione del presidente Enrico Ferri. Approvata dalla Commissione (Milan: F. Vallardi, 1921). Ferri, Progetto, p. 76. Ibid., p. 77. Decree of 14/9/1919 quoted by Ferri, in Progetto, in the preface and on p. 1. Ferri, Progetto, p. 6. Ibid., p. 27. Ibid. Ibid., p. 18. Absolute indeterminacy was nonetheless restricted to sanctions implying personal segregation. Other types of sanctions could have a fixed measure. See Ferri, Progetto, p. 77. See Delaquis (ed.), L’œuvre de la Commission, p. 67. Ibid., p. 82. Ibid., p. 68. Presentation note, in Revue internationale de droit pénal, 1ère année, 1:1 (1924), pp. 1–2, on p. 2. Ibid., p. 1. ‘Statuts de l’Association Internationale de Droit Pénal’, in Revue international de droit pénal, 1:1 (1924), pp. 17–20, on p. 17. On the Société Générale des Prisons see M. Kaluszynski, La République à l’épreuve du crime. La construction du crime comme objet politique. 1880–1920, La République à l’épreuve du crime. La construction du crime comme objet politique. 1880–1920 (Paris: L.GD.J., 2002), pp. 207–21. ‘The distant but supreme goal we all must pursue: the universality of repression!’ See the report on the constitutive general assembly, in Revue internationale de droit pénal, 1ère année, 1:1 (1924), pp. 3–16, on p. 12.

186

Notes to pages 50–7

32. The Ministry of Justice, promoter of the project, quoted by Robert von Hippel in Deutsches Strafrecht Allgemeiner Teil, vol. 1, 1925, and translated by Radzinowicz, The Roots of the International Association of Criminal Law, p. 23. 33. Radzinowicz, The Roots of the International Association of Criminal Law, pp. 23–4. 34. See report on the constitutive general assembly, in Revue internationale de droit pénal, 1ère année, 1:1 (1924), p. 11. 35. M. Potulicki (ed.), ‘Members List’, in I Conférence Internationale d’Unification du Droit Pénal. (Varsovie, 1er–5 Novembre 1927). Actes de la Conférence publiés par ... (Paris: Librairie du Recueil Sirey, 1929), pp. 3–7. 36. See the report on the constitutive general assembly, in Revue internationale de droit pénal, 1ère année, 1:1 (1924), pp. 3–16, on pp. 11–12. 37. Potulicki (ed.), ‘Statues of the Conferences’, I Conférence Internationale d’Unification du Droit Pénal, pp. 10–13. 38. ‘Avant-propos’, in Comité d’Organisation de la Conférence, Conférence Internationale d’Unification du Droit Penal (Rome, 21–25 mai 1928). Actes de la Conférence publiés par les soins du … (Rome: Istituto Poligrafico dello Stato, 1931), pp. 5–6, on p. 6; and H. Donnedieu de Vabres (ed.), ‘Avant-propos’, Conférence Internationale d’Unification du Droit Pénal. Sous les Auspices du Gouvernement de la République Française (Paris, 27–30 décembre 1931), Actes de la Conférence publiés par ... (Paris: Librairie du Recueil Sirey, 1933), p. 3. 39. Potulicki (ed.), ‘Questions soumises à la Conférence’, in I Conférence Internationale d’Unification du Droit Pénal, p 15. 40. See W. Tallack, ‘Preface to the First Edition’, in Penological and Preventive Principles, with Special Reference to Europe and America (London: Wertheimer, 1896 [1889]), p. vii. 41. R. Monaco, ‘Associazione internazionali penali e penitenziarie’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 1 (Milan: Casa Editrice Dottor Francesco Vallardi, 1943), pp. 90–3, on p. 92. 42. In this regard, it is interesting to compare the programmes of the interwar congresses with the questionnaire sent over to the states participating in International Congress on the Prevention and Repression of Crime in London, 1872, which gave rise to the International Penitentiary Congresses. Indeed, most of the sixty-nine questions focused on issues of penitentiary administration (‘Prisons and Reformatories at Home and Abroad’, in Pears (ed.), Prisons and Reformatories at Home and Abroad, pp. 1–5). Even when the debates were divided into the specialized sections of Legislation, Penitentiary Administration and Prevention (and later Children and Minors), the issues of penitentiary administration appear to have been dominant, at least in the first few congresses. 43. This number does not include the questions presented in the International Conference for the Unification of the Penal Law in Brussels in 1930, the procedures of which were not available for consultation. 44. For a detailed analysis of the division of labour between these international organizations, see T. Pires Marques, Mussolini’s Nose: A Transnational History of the Penal Code of Fascism (PhD dissertation, European University Institute, 2007), pp. 340–2. 45. M. Lopez-Rey Arrojo (ed.), ‘Message adressé au Secrétaire Général de la Société des Nations’, in Conférence Internationale d’Unification du Droit Pénal. Sous les Auspices du Gouvernement de la République Espagnole. (Madrid, 14–20 Octobre 1933). Actes de la Conférence publiés par Manuel Lopez-Rey Arrojo (Paris: Editions A. Pedone, 1935), pp. 335–8, on p. 338. 46. It was the case of a resolution addressed to the General Secretary of the latter with the final objective of achieving the ‘universal repression’ of the crimes relative to the ius

Notes to pages 57–62

47. 48. 49.

50. 51. 52.

53.

54. 55. 56. 57. 58. 59.

60.

61.

62.

63.

64. 65.

187

gentium and that of war propaganda. See Donnedieu de Vabres (ed.), ‘Résolution en faveur de l’élaboration de conventions internationales pour la répression des délits du droit des gens et de la propagande de guerre’, in Conférence Internationale d’Unification du Droit Pénal, p. 300. This shows in several studies and recommendations published in the series Publications de la Société des Nations, IV – Questions sociales (Genève: Société des Nations, 1930–7). Garland, Punishment and Welfare, p. 242. Association Internationale de Droit Pénal, Projet de statut d’une cour de justice criminelle internationale précédé d’une ‘Introduction’ de M. le Conseiller Megalos A. Calloyanni et du rapport de M. Vespasien V. Pella (Paris: Éditions Godde, [s.d.]). Potulicki (ed.), ‘Rapports sur les travaux de la 1ere séance’, in I Conférence Internationale d’Unification du Droit Pénal, pp. 10–12, on p. 11. ‘Preliminary Observations, Rules for the Treatment of Prisoners’, in Bulletin de la Commission internationale pénale et pénitentiaire, 5 (1930), pp. 7–21, on p. 7. See Comte Carton de Wiart and J.-A. Roux (eds), ‘Rapports’, in Quatrième Congrès International de Droit Pénal (Paris 26–31 juillet 1937). Actes du Congrès publiées sous la direction du ... (Paris: Librairie Marchal et Billard, 1939), p. 17. Garland, Punishment and Welfare, pp. 74–89; and D. Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Oxford: Oxford University Press, 2001), pp. 27–52. Potulicki (ed.), ‘Avant-propos’, in I Conférence Internationale d’Unification du Droit Pénal, p. 1. Farmer, Criminal Law, Tradition and Legal Order, pp. 16–17. See the report on the constitutive general assembly, in Revue internationale de droit pénal, 1ère année, 1:1 (1924), pp. 3–16, on p. 13. E. Hacker, ‘The Influence of the World War on Crime’, in Revue internationale de droit pénal, 4ème année, 1:1 (1927), pp. 95–109, on pp. 108–9. A. Rocco, ‘Relazione a S.M. il Re del Ministro Guardasigilli’, in Codice Penale. Relazione e R. Decreto 19 ottobre 1930, Anno VIII, n. 1398, pp. 5–62, on p. 6. B. Mussolini, quotes in B. Biancini (ed.), Dizionario mussoliniano. 1500 affermazioni e definizioni del Duce su 1000 argomenti scelte e disposte in ordine alfabetico di soggetto (Milan: Ulrico Hoepli, 1942), pp. 200–1. B. Mussolini, ‘Prefazione’, in A. Rocco, Scritti e discorsi politici, vol. 1, La lotta nazionale della vigilia e durante la guerra (1913–1918) (Milan: Dott. A. Giuffré, 1938), pp. x–xi, on p. x. As a representative example of this, see ‘Commissione Reale Straordinaria per l’Ordine degli Avvocati di Pisa. Estratto del verbale di adunanza del di 9 dicembre 1927 (VIº)’, in ACS MGG.G, b. 11, p. 4. Ministère de la Justice et des Affaires de Culte, Avant-Projet d’un Nouveau Code Penal Italien. Octobre 1927 – V (Traduction du texte original italien) (Rome: Provveditorato Generale dello Stato, 1928). In a letter dated 22 November 1929, the ambassador of Poland in Italy confirmed the reception of one of these copies, which, in the ambassador’s words, were being examined by jurists ‘all over the world’. See letter from the ambassador of Poland to Rocco dated 22/11/1929, in ACS MGG.G, b. 11. Costa, ‘La giuspubblicistica dell’Italia unita’, p. 127. J. S. Van Der Aa (ed.), Actes du Congrès Pénitentiaire International de Londres. Août 1925, vol. 1b, p. 28.

188

Notes to pages 63–4

66. Featuring prominently among the so-called militant penologists: Arturo Rocco, Edoardo Massari, Vicnenzo Manzini, Silvio Longhi, Alfredo De Marsico, Giuseppe Maggiore, Ugo Aloisi, Arturo Santoro and Alessandro Stoppato. In Sbriccoli, ‘Le mani nella pasta e gli occhi al cielo’, p. 848. We can add Mariano D’Amelio (president of the corte di cassazione, vice-president of the senate and an inconditional supporter of the Justice Minister’s criminal policy), Rafaelle Garofalo, Giovanni Novelli (president of section in tribunale di cassazione) and the criminal anthropologists Benigno di Tulio (secretarygeneral of the Italian Society of Criminal Anthropology and Psychology) and Filippo Saporito (professor and health inspector at the service of the Ministry of Justice). In the IPPC of Prague (1930), the official delegates were Ugo Conti, Silvio Longhi, Giovanni Novelli and Edoardo Massari. See ‘Rapports’, in J. S. Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Prague. Août 1930, 5 vols (Berne: Bureau de la Commission Pénitentiaire Internationale, 1931), vol. 1b, p. 21. In that of Berlin: Giulio Battaglini, Ugo Conti, Giovanni, Arturo Rocco, Filipp Saporito, Benigno di Tullio. See ‘Rapports’, in Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, Août 1935, 5 vols (Berne: Bureau de la Commission Pénitentiaire Internationale, 1936), vol. 1b, pp. 34–5. 67. As an example, in the International Conference of Penal Law in 1929, the Italian delegation was composed of Rafaelle Garofalo, Ugo Aloisi, Edoardo Massari and Silvio Longhi. See members list, in Comte Carton de Wiart and J.-A. Roux (eds), Deuxième Congrès International de Droit Pénal (Bucarest 6–12 Octobre 1929). Actes du Congrès publiées sous la direction ... (Paris: Librairie des Juris-Classeurs, 1930), p. 29. 68. See members list, in Comité d’Organisation de la Conférence, Conférence Internationale d’Unification du Droit Penal (Rome, 21–25 mai 1928), p. 11. 69. See discussions, in Potulicki (ed.), I Conférence Internationale d’Unification du Droit Pénal. (Varsovie, 1er–5 Novembre 1927), p. 135. 70. Such a concept was made operative in the penal domain through the principles contained in article 2 of the resolution: ‘Les mesures de sûreté ne peuvent être appliquées qu’aux personnes socialement dangereuses, qui ont commis un fait prévu par la loi comme infraction, encore qu’elles ne soient pas responsables, ou pas punissables’ (‘Security measures are to be applied solely to the socially dangerous persons who committed an act defined by law as an offense, even if they are not responsible and, therefore, not punishable’). Article 4 is a good example of an explicit evocation of the Italian project: ‘Dans l’application des mesures de sûreté on doit observer, quant à l’usage du pouvoir discrétionnaire du juge, la disposition du premier alinéa de l’art. 133 du Projet du Code pénal italien’ (‘In the application of security measures it must be observed, in the use of dicretionary power of judges, the provision of the first paragraph of the article 133 of the Italian Penal Code Project’). See recommendation, in Comité d’Organisation de la Conférence, Conférence Internationale d’Unification du Droit Penal (Rome, 21–25 mai 1928), pp. 229–31. 71. Lavori preparatori del codice penale, vol. 6 (1930), p. 225. 72. My translation of: ‘Sono questi le così dette misure di sicurezza delle quali il codice che viene sottoposto all’Alta approvazione della Maestà Vostra ha fornito una disciplina così ampia, così dettagliata e precisa da potere essere additata a modello ai legislatori di molti Stati di Europa nel recente Congresso internazionale di diritto penale tenutosi a Roma nel maggio del 1928.’ Rocco, ‘Relazione a S.M. il Re del Ministro Guardasigilli’, p. 8. 73. This was otherwise remarked, with concern, by some congressmen present in the International Congress of Penal Law in Rome (1928). See Lavori preparatori del codice penale, vol. 6, p. 225.

Notes to pages 64–74

189

74. ‘Resolutions’, in Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1b, pp. 78–9. 75. L. Belym, ‘Le juge doit-il intervenir dans l’exécution des peines et des mesures de sûreté? Rapport présenté par …’, in Revue internationale de droit pénal, 13:3 (1936), pp. 334–9. 76. My translation of: ‘La délimitation de ces différentes possibilités entre elles présente des difficultés techniques. Elles surgissent du fait de l’imprécision de ces concepts, dont quelques-uns sont encore jeunes pour la science; au moment la difficulté découle aussi du fait que ces possibilités et procédures s’enchevêtrent dans la pratique. Néanmoins, si nous recherchons des solutions concrètes et en partant de la légalité actuelle, nous pouvons essayer une différentiation, qui ait pour but d’affiner les concepts. Il nous importe surtout de séparer la mesure de sûreté de la mesure de police, d’une part, et de la peine, d’autre part. … Voilà notre synthèse: Danger social: Mesure de police. Simple danger criminel: Mesure de sûreté. Danger accompagné de responsabilité: Peine.’ Jimenez, ‘Rapport’, in J. S. Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Prague, vol. 2, pp. 43–50, on pp. 44–5. 77. Apart from the Spanish and the Portuguese cases, I used the Italian Dictionary of Criminology published in 1943, which treated the issue of the security measures with considerable length and detail, as a source. See Marucci, ‘Misure di sicurezza (Teoria)’, p. 560. 78. Ferri, Principii di diritto criminale, pp. 787–9.

3 Fascism as Social Defence 1. 2. 3. 4. 5. 6. 7. 8.

9. 10. 11. 12. 13. 14. 15.

See above, chapter 2, pp. 43, 62. Felice, Mussolini il fascista, pp. 8–9. Ibid., p. 163; E. Gentile, ‘Alfredo Rocco’, in F. Cordova (ed.), Uomini e volti del fascismo (Rome: Bulzoni Editore, 1980), pp. 305–36, on p. 305. Mussolini, ‘Prefazione’, p. xi. Rocco, La Trasformazione dello stato, pp. 45–60. This is an almost literal translation of the wording of the law, quoted by Felice, Mussolini il fascista, p. 121. Felice, Mussolini il fascista, pp. 139–43. Inconcrete articles of the Zanardelli Code then in force: 104, 107, 108, 120 and 252, par. 2, ‘Provvedimenti per la difesa dello Stato – legge 25 novembre 1926, n. 2008’, in Raccolta ufficiale delle leggi e dei decreti del Regno d’Italia, vol. 9 (Turin: Stamperia reale, 1926). G. di Luna, ‘Tribunale speciale per la difesa dello stato’, in Dizionario del fascismo, 2 vols (Turin: Einaudi, 2005), vol. 2, pp. 738–43. A. Aquarone, L’organizazione dello Stato totalitario (Turin: Einaudi, 1965), p. 152. Felice, Mussolini il fascista, note 3, p. 414. Letter of Joachim Scherrier dated 11/1/1930 followed by Alfredo Rocco’s draft dated 23/1/1930, in ACS MGG.G, b. 11, f. 2, sf. 1. Gentile, ‘Alfredo Rocco’, p. 335. J.-P. Faye, Introduction aux langages totalitaires. Théorie et transformation du récit (Paris: Hermann, 2003), pp. 73–6. Rocco, La Trasformazione dello stato, p. 7.

190

Notes to pages 74–80

16. My translation of: ‘io pongo nel nuovo assetto giuridico e morale creato dal Fascismo la sua intima virtù rivoluzionaria. Una rivoluzione, in realtà, non merita tal nome, se non mette capo ad un nuovo sistema di diritto pubblico e ad un nuovo spirito del popolo.’ Rocco, La Trasformazione dello stato, pp. 5–6. 17. My translation of: ‘Lo stato fascista è infatti lo Stato, che realizza al massimo della potenza e della coesione l’organizzazione giuridica della società. E la società, nella concezione del fascismo, non è una pura Osma di individui, ma è un organismo, che ha una sua propria vita e suoi propri fini, che trascendono quelli degli individui, e un proprio valore spirituale e storico.’ Rocco, La Trasformazione dello stato, p. 16. 18. Rocco, La Trasformazione dello stato, pp. 16–17. 19. P. Ungari, Alfredo Rocco e l’ideologia giuridica del fascismo (Brescia: Morcelliana, 1963), p. 56. 20. Rocco, La Trasformazione dello stato, p. 17. 21. Gibson, Born to Crime, p. 14. 22. Ibid., p. 13. 23. Ibid., p. 179. 24. Ibid., p. 178. 25. Ibid., p. 13. 26. Rocco, La Trasformazione dello stato, p. 295. 27. D. Melossi, Stato, controllo sociale, devianza. Teorie criminologiche e società tra Europa e Stati Uniti (Milan: Bruno Mondadori, 2002), p. 70. 28. Rocco, La Trasformazione dello stato, p. 216. 29. Ibid., p. 224. 30. Ibid., p. 295. 31. Ibid., p. 216. 32. Ibid., pp. 229–30. 33. Ibid., p. 216. 34. Ministero dell’Interno, Bolletino ufficiale. Legislazione e disposizioni ufficiali, 33–4 (1926), pp. 722–3, Aquarone, L’organizazione dello Stato totalitario, p. 100. 35. For this, the prefetti already disposed the necessary means, which had been constituted by the Law of Public Security and the Provisions for the State Defence. See Aquarone, L’organizazione dello Stato totalitario, p. 486. 36. Aquarone, L’organizazione dello Stato totalitario, pp. 486–7. 37. Ibid., p. 487. 38. Rocco, La Trasformazione dello stato, p. 274. 39. L. Rusticucci, Nelle galere. Studio di Clinica criminale, preface E. Ferri (Naples: Società Editrice Partenopea, 1925), pp. 8–10. 40. Segretariato Generale. Direzione del Resoconto e degli Studi Legislativi (ed.), La Legislazione Fascista 1922–1928, vol. 1 (Rome: Tip. Della Camera dei Deputati, 1929), p. 375. 41. Rusticucci, Nelle galere, p. 10. 42. Alfredo Rocco, ‘Politica e diritto nelle vechie e nelle nuove concezione dello Stato’, in Nuova antologia (1 December 1931), pp. 356–70, quoted by Ungari, Alfredo Rocco, p. 64. 43. My translation of: ‘lo Stato fascista contiene il liberalismo e lo supera: lo contiene, perchè si serve della libertà quando essa è utile; lo supera, perchè raffrena la libertà quando è danosa ... lo Stato fascista è lo Stato veramente sovrano, quello cioè che domina tutte le forze esistenti nel paese e tutte sottopone alla sua disciplina.’ Rocco quoted by Ungari, Alfredo Rocco, p. 18. 44. A. Rocco, ‘Prolusione a Perugia’, ACS MGG.G, p. 13.

Notes to pages 81–8

191

45. Ungari, Alfredo Rocco, pp. 16 and 56. 46. Intervention of A. Rocco, in ‘Il I Congresso Giuridico Italiano’, in Rivista di Diritto Penitenziario, 3:5 (September–October 1932), pp. 1051–120, on. p. 1100. 47. Rocco, La Trasformazione dello stato, p. 19. 48. Ibid., pp. 20–3. 49. Ibid., p. 21. 50. My translation of: ‘Così, colla nuova disciplina data non soltanto alla materia penale propriamente detta, ma anche a quella delle sanzioni civili e delle misure amministrative di sicurezza, il nuovo codice penale che sottopongo alla Sovrana approvazione della Maestà Vostra segna una vera e profonda trasformazione del nostro diritto penale che sarà d’ora innanzi un diritto criminale non più soltanto repressivo, ma insieme repressivo e preventivo, e un diritto criminale non più soltanto penale, ma insieme civile e amministrativo.’ Alfredo Rocco, ‘Relazione a S. M. Il Re del Ministro Guardasigilli. Presentata nell’udienza del 19 ottobre 1930 – VIII per l’approvazione del testo definitivo del Codice Penale’, in Codice Penale (Rome: Ministero della Giustizia e degli Affari di Culto, 1930), pp. 5–62, on p. 13. 51. F. Catroga, ‘O sociologismo jurídico em Portugal e as suas incidências curriculares (1837–1911)’, in Universidade(s). História, Memória, Perspectivas. Actas do Congresso de História da Universidade, vol. 1 (Coimbra: Comissão Organizadora do Congresso ‘História da Universidade’, 1991), pp. 399–414; Pires Marques, Crime e castigo no liberalismo em Portugal, p. 45. 52. C. Salvi, ‘La giusprivatistica fra codice e scienza’, in A. Schiavone (ed.), Stato e cultura giuridica in Italia dall’unità alla repubblica (Rome and Bari: Laterza, 1990), pp. 233–73. 53. On the pandectitsic movement, see A. M. Hespanha, Panorama histórico da cultura jurídica europeia (Mem Martins: Europa-América, 1997), pp. 185–95. 54. Salvi, ‘La giusprivatistica fra codice e scienza’, p. 236. 55. The pandectistic was otherwise influential in the Italian school of public law. Its central figure, Vittorio Emanuele Orlando, recognized the conceptual debt of the scuola giuspubblicistica to this originally privatistic juridical doctrine. Salvi, ‘La giusprivatistica fra codice e scienza’, p. 237. 56. Synthetic accounts of the so-called technical–juridical school of legal thought, as part of the penal culture of the pre-fascist and fascist periods, can be found in Grosso, ‘Le grandi correnti del pensiero penalistico italiano tra Ottocento e Novecento’, pp. 18–22; and Sbriccoli, ‘Caratteri originari e tratti permanenti del sistema penale italiano’, pp. 517–28. 57. Arturo Rocco, ‘Il problema e il metodo della scienza del diritto penale’, in Rivista di diritto e procedura penale, 1 (1910), pp. 497–521 and pp. 561–82, on pp. 561–2. 58. Costa, Lo stato immaginario, pp. 240–60. 59. Arturo Rocco, Appunti storici su la dottrina dei diritti soggettivi in materia penale e dei rapporti di diritto pénale (Turin: Fratelli Bocca, 1913), pp. 4 and 9. 60. My translation of: ‘Per tal guisa rimarrà imutato il sistema e inalterata la fisionomia generale del codice e resteranno intatti i principi e i caratteri fondamentali degli istituti penali’. Rocco, La Trasformazione dello stato, p. 217. 61. Aquarone, L’organizzazione dello Stato totalitario; Felice, Mussolini il fascista, pp. 161–3; p. 297. 62. A. Rocco, Overture speech before the Commissione per la riforma del codice penale, 30 November 1927, in ACS MGG.G, b. 1, f. 2.

192

Notes to pages 88–92

63. The reports of the juridical professions are assembled in the Lavori preparatori del codice penale, vol. 3 (1928); those of other actors of civil society can be consulted in ACS MGG.G, b. 7 and b. 11. 64. On the work of the parliamentary commission, see Lavori preparatori del codice penale, vol. 6. 65. Lavori preparatori del codice penale, vol. 1, p. 39. 66. Ibid., pp. 40–50. 67. Ibid., pp. 187–95. 68. Ibid., pp. 198–9. 69. Ibid., p. 207–9. 70. Ibid., p. 262. 71. Ibid., pp. 262–3. 72. Ibid., pp. 277–83. 73. This information is given by Alfredo Rocco in his speech to the ministerial commission. See Alfredo Rocco’s speech to the ministerial commission (untitled), in ACS MGG.G, b. 1, f. 2, p. 2. 74. Alfredo Rocco’s speech to the ministerial commission (untitled), in ACS MGG.G, b. 1, f. 2, p. 1. 75. Arturo Rocco’s academic speech, delivered at the University of Sassari in 1910 is generally pointed out as its moment of birth. See Neppi Modona, ‘Diritto penale e positivismo’, p. 60. 76. ACS MGG.G, b. 1, f. 2, p. 2. 77. Sbriccoli, ‘Le mani nella pasta e gli occhi al cielo’, p. 826. His influence in the more advanced stages of the codification process can otherwise be traced in a letter he addressed to Saltelli, a head of cabinet of the Minister of Justice, with precise indications on the wording of an article. Letter de Arturo Rocco to Saltelli dated 12 August 1929, in ACS MGG.G, b. 11, f. 2, sf., n. 1. 78. Alfredo’s Rocco speech to the ministerial commission (untitled), in ACS MGG.G, b. 1, f. 2, p. 4. 79. See ACS MGG.G, b. 9. 80. ‘Relazione sul progetto preliminare di un nuovo codice penale. Agosto 1927 Anno V del prof. Ugo Conti alla Facoltà Giuridica della R. Università di Pisa’, ACS MGG.G, b. 9. Or, in the same line of thought: ‘R. Università di Napoli. Facoçtà di Giurisprudenza. Relazione della Commissione incaricata dell’esame del “Progetto Preliminare d’un nuovo Codice penale”’, 1928, ACS MGG.G, b. 9, p. 3. 81. Facoltà di Giurisprudenza della R. Università di Macerata. Relazione sul progetto preliminare del nuovo codice penale’, in ACS MGG.G, b. 9, p. 8. 82. See, for example, ‘R. Università di Firenze. Facoltà di Giurisprudenza, Voto a S.E. Ministro della giustizia sul progetto preliminare di un nuovo codice penale’, 1928, in ACS MGG.G, b. 9, p. 9; ‘R. Università di Napoli. Facoltà di Giurisprudenza. Relazione della Commissione incaricata dell’esame del “Progetto Preliminare d’un nuovo Codice penale”’, 1928, in ACS MGG.G, b. 9, p. 3; ‘Relazione sul progetto preliminare di un nuovo codice penale. Agosto 1927 Anno V del prof. Ugo Conti alla Facoltà Giuridica della R. Università di Pisa’, in ACS MGG.G, b. 9, p. 14; ‘R. Università di Genova. Facoltà di Giurisprudenza’, in ACS MGG.G, b. 9, p. 1. 83. This statement does not appear in the corresponding site regarding the general appreciation of the University of Sassari. See Lavori preparatori del codice penale, vol. 3, pp. 71–2.

Notes to pages 92–5

193

84. ‘Facoltà di Giurisprudenza della R. Università di Macerata. Relazione sul progetto preliminare del nuovo codice penale’, ACS MGG.G, b. 9, p. 4. 85. Report signed by Eugenio Florian integrating that of Regia Università di Torino, ACS MGG.G, b. 9, p. 7. 86. See ‘CP: Commissioni Reali Avvocati e Procuratori esaminati – Originali – Pareri’, in ACS MGG.G, b. 11, f. 2, sf. 12, p. 4. 87. ‘Commissione Reale Straordinaria per l’Ordine degli Avvocati di Trieste e dell’Istria, Note sul Progetto preliminare del nuovo codice penale, Trieste’, 1928, in ACS MGG.G, b. 10, f. 2, p. 1. 88. ‘R. Commissione Straordinaria per il Collegio degli Avvocati di Milano. Relazione sul progetto preliminare di codice penale’, 1927, in ACS MGG.G, b. 10, f. 2, p. 3. 89. ‘Sindacato Fascista degli Avvocati e Procuratori di Catania. Parere sul Progetto preliminare di un nuovo codice penale’, 1928, in ACS MGG.G, b. 10, f. 2, p. 19. 90. ‘Commissioni Reali dell’Ordine degli Avvocati e Procuratori e Sindicato fascista Avvocati e Procuratori di Napoli. Osservazioni sul Progetto di un nuovo codice penale Parte generale’, in ACS MGG.G, b. 11, f. 2, sf. 1, p. 1. 91. ACS MGG.G, b. 8, n. 8, f. 8. 92. These appreciations can be found throughout the opening ‘Osservazioni e proposte di carattere generale’, in Lavori preparatori del codice penale, vol. 3, pp. 1–40. 93. This material can be found in in ACS MGG.G, b. 7, f. 1 and f. 2; and ACS MGG.G, b. 11, f. 2. 94. For example, the Azione Cattolica Italiana/Segretariato Centrale per la Moralità, the Comitato Nazionale Italiano per la pubblica moralità, the Consorzio delle Università/ Comunità Israelitiche Italiene, the Associazione Nazionale Antiblasfema, the Adunanza generale italiana per la pubblica moralità a Trento, the Istituto giuridico della famiglia. 95. The Associazione italiana di medicina legale and the Società italiana di sessuologia, demografia ed eugenica. 96. The Federazione italiana per il suffragio e diritti civili e politici delle donne Istituti e scuole italiene dei sordomuti, the Reale Automobile Club d’Italia, the Cassa Nazionale d’Assicurazione per gli infortuni sul lavoro. 97. The Associazione Fascista Commercio Enologico. 98. Anonymous letter dated 7 March 1930 with stamp from Palermo, in ACS MGG.G, b. 7, f. 2, sf. 1. 99. Among others, see ‘Carta a Rocco de Ferdinando Lambert (decano degli avvocati di Puglia)’ dated 19 October 1927; ‘Carta de Mariano Rosatti [philosopher] alla Commissione per l’esame del nuovo codice penale’, dated 3 December 1927; and ‘Carta de cittadini a Benito Mussolini’, dated 2 December 1927; in ACS MGG.G, b. 7, f. 2, sf. 8. 100. ‘Estratto di lettera del Prof. Lucchini’, in in ACS MGG.G, b. 7, f. 2, sf. 8. 101. See Lavori preparatori del codice penale, vol. 6, pp. 158–60. 102. Ibid., p. 260. 103. See, for example, ‘Azione Cattolica Italiana. Segretariato Centrale per la Moralità, Note, rilievi e proposte sul progetto preliminare di un nuovo codice penale’, 1928, in ACS MGG.G, b. 7, f. n. 2, sf. 8, pp. 3–14; Filippo Maria Tinti, Delitti contro la Religione Cattolica. Osservazioni e proposte sul progetto del nuovo Codice Penale, Estrato dell’Araldo di Bari n. 9 del 26 febbraio 1928 (6), in ACS MGG.G, b. 7, f. n. 2, sf. 8; Mario Telesca D’Amantra, Stato e anarchismo. Al Ministro Guardasigilli, April 1928, in ACS MGG.G, b. 7, f. n. 2, sf. 8, 1928; ‘Comitato Nazionale Italiano per la pubblica moralità, Torino, 4 aprile 1927’, in ACS, ACS MGG.G, b. 7, f. n. 2, sf. 7; Padre Mario Telesca D’Amantea,

194

Notes to pages 95–9

Della provocazione nel reato di violenza carnale. Studio del nuovo codice penale, Salerno, January 1928, in ACS, ACS MGG.G, b. 7, f. n. 2, sf. 7; petition of citizens from Catania dated 13 September 1927 and petition of the Associazione Nazionale Antiblasfema in order to incriminate the practice of cursing, in ACS, ACS MGG.G, b. 7, f. n. 2, sf. 7; Adunanza generale italiana per la pubblica moralità a Trento for the penalization of moral offenses, censorship, abortion, neo-Malthusianism and prostitution, in ACS, ACS MGG.G, b. 7, f. n. 2, sf. 7; and various letters of private persons asking for new incrimination in the domain of the sexual moral, in ACS, ACS MGG.G, b. 11, f. 2, sf. 1. 104. ‘R. Università di Genova. Facoltà di Giurisprudenza’, in ACS, ACS MGG.G, b. 9, f. 2, pp. 2 and 11. 105. ‘R. Commissione Straordinaria per il Collegio degli Avvocati di Milano. Relazione sul progetto preliminare di codice penale’, 1927, in ACS, ACS MGG.G, b. 10, f. 2, p. 11. 106. ‘Letter of Antonio Martini’, dated Palermo, 9 December 1927, in ACS, ACS MGG.G, b. 7, f. 2, sf. 8. 107. Lavori preparatori del codice penale, vol. 3, p. 41. 108. See above, pp. 82–3. 109. E. Pessina, ‘Dei delitti contro lo Stato’, in Enciclopedia del diritto penale italiano diretta dal Prof. Enrico Pessina, vol. 6 (Rome, Milan and Naples: Società Editrice Libraria, 1909), p. 4. 110. Ibid., p. 116. 111. M. Foucault, Surveiller et punir. Naissance de la prison (Paris: Gallimard, 1975), p. 65. 112. Benadusi, Il nemico dell’uomo nuovo, pp. 99–107. 113. G. Dall’ Orto, ‘La “toleranza repressive” dell’omosessualità. Quando un attegiamento legale diviene tradizione’, in Arcigay nazionale (ed.), Omosessualità e Stato (Bologna: Cassero, 1988), pp. 37–57, quoted by Benadusi, Il nemico dell’uomo nuovo, p. 106. 114. The expression was used by a doctor, G. Bruni, in a text entitled ‘È necessaria la repressione penale dei delitti contro natura?’, Appendice a M. A. Raffalovich, L’uranismo. Inversione sessuale congenital. Il processo Oscar Wilde (Turin: Bocca, 1896), p. 111, quoted by Benadusi, Il nemico dell’uomo nuovo, p. 104. 115. Benadusi, Il nemico dell’uomo nuovo, p. 103. 116. My translation of: ‘Articolo 528 – Relazioni omosessuali Chiunque ... compie atti di libidine su persona dello stesso sesso, ovvero si presta a tali atti, è punito se del fatto derivi pubblico scandalo, com la reclusione dai sei mesi ai tre anni. La pena è della reclusione da uno a cinque anni: Se il colpevole, essendo Maggiore degli anni ventuno, cometta il fatto su persona minore degli anni diciotto;Se il fatto sia commesso habitualmente, o a fine di lucro’. See Progetto preliminare di un Nuovo Codice Penale (Rome: [s.n.], 1927). 117. Benadusi, Il nemico dell’uomo nuovo, pp. 115–16. 118. ‘R. Commissione Straordinaria per il Collegio degli Avvocati di Milano. Relazione della Commmissione’, 1927, in ACS MGG.G, b. 10, f. 2, p. 51. 119. ‘R. Università di Napoli. Facoltà di Giurisprudenza. Relazione della Commissione’, 1928, in ACS MGG.G, b. 9, f. 2, p. 34. 120. G. Goretti and T. Giartosio, La città e l’isola. Omosessuali al confino nell’Italia fascista (Rome: Donzelli, 2006), pp. 230–6. The same authors present statistics regarding the use of police confinement against homosexuals for the period 1926–43. See La città e l’isola, pp. 261–5. 121. See Ferri, ‘Il Progetto Rocco di Codice Penale Italiano’, p. 822. 122. Rocco, La Trasformazione dello stato, p. 294.

Notes to pages 99–105

195

123. Ibid., p. 297. 124. Ibid., p. 298. 125. My translation of: ‘Noi crediamo che l’individuo sia mezzo e non fine, che la società abbia fini suoi propri, che trascendono la vita dell’individuo, e a cui i fini individuali debbono subordinarsi.’ Rocco, La Trasformazione dello stato, p. 297. 126. Mussolini, ‘Discorso pronunciato alla I assemblea Quinquennale del Regime in Roma, 10 marzo, 1929’, in Biancini (ed.), Dizionario mussoliniano, p. 224. 127. My translation of: ‘Per il Fascismo lo Stato è un assoluto, davanti al quale individui e gruppi sono il relativo. Individui e gruppi sono “pensabili” in quanto siano nello Stato. Lo Stato liberale non dirige il gioco e lo sviluppo materiale e spirituale della collettività, ma si limita a registrare i risultati; lo Stato fascista ha una sua consapevolezza, una sua volontà, per questo si chiama uno Stato “etico”.’ Mussolini, ‘Fascismo’, Enciclopedia Italiana Treccani, vol. 14 (1932), quoted in Biancini (ed.), Dizionario mussoliniano, p. 226. Mussolini’s entry is available at: B. Mussolini et al., ‘Fascismo. Enciclopedia italiana (1932)’, in Trecanni.it, http://www.treccani.it/enciclopedia/fascismo_(Enciclopedia_ Italiana)/ [accessed 27 March 2013]. 128. My translation of: ‘Il Fascismo è una concezione religiosa, in cui l’uomo è veduto nel suo immanente rapporto con una legge superiore, con una Volontà obiettiva che trascende l’individuo particolare e lo eleva a membro consapevole di una società spirituale’. Mussolini, ‘Fascismo’, in Enciclopedia Italiana Treccani, vol. 14 (1932). According to the historian Amedeo Benedetti, this article was authored by Giovanni Gentile and Gioacchino Volpe. See A. Benedetti, L’Enciclopedia Italiana Treccani e la sua biblioteca, in Biblioteche Oggi, Milan, 8 (October 2005), pp. 39–46, on p. 43. Historian George Mosse places great emphasis on the religious dimension of Italian fascism. See G. L. Mosse, The Fascist Revolution: Toward a General Theory of Fascism (New York: Howard Fertig, 2000), p. 3. 129. Neppi Modona, ‘Tecnicismo e scelte politiche’, p. 665. 130. See above, p. 82. 131. Rocco, ‘Relazione a S. M. Il Re del Ministro Guardasigilli’, p. 14. 132. Rocco, La Trasformazione dello stato, pp. 268–9. 133. Ibid., p. 288. 134. See ‘R. Univsersità di Sassari. Facoltà di Giurisprudenza. Relazione sul progetto preliminare di un nuovo codice penale’,1928, in ACS MGG.G, b. 9, f. 2, pp. 13–14. 135. ‘Ministero della Giustizia e degli Affari di Culto. Direzione Generale delle Carceri e dei Riformatori’, 1928, in ACS MGG.G, b. 7, f. 2, sf. 8, p. 17. 136. ‘Bruno Franchi, Relazione sugli art. 141, 143, 144, 148 progetto C.P., 508 C.P.P, 19/1/1928’, in ACS MGG.G, b. 7, f. 2, sf. 8, p. 1 and pp. 4–10. 137. ‘Bruno Franchi’, in ACS MGG.G, b. 7, f. 2, sf. 8, pp. 10–11. 138. My translation of: ‘la vecchia diffidenza demagogica e di quel romanticismo giuridico, derivato culturale e storico del giusnaturalismo. Franchi’, in ACS MGG.G, b. 7, f. 2, sf. 8, p. 14. 139. ‘Osservazioni e proposte del Direttorio del Gruppo “Funzionari Carceri e Riformatori” sulle disposizioni del progetto del nuovo Codice Penale, riguardanti l’esecuzione delle pene e delle misure di sicurezza’, dated 1 October 1928, in ACS MGG.G, b. 1, f. 2, sf. 1. 140. ‘Bruno Franchi’, in ACS MGG.G, b. 7, f. 2, sf. 8, p. 15. 141. Lavori preparatori del codice penale, vol. 3, p. 369. 142. Ibid., pp. 366–8. 143. The Corte d’Appello di Genova quoted articles 52 and 61 of the preliminary project. See Lavori preparatori del codice penale, vol. 3, p. 371.

196

Notes to pages 105–13

144. Article 106, in Lavori preparatori del codice penale, vol. 3, p. 171. 145. Ibid., p. 372. 146. Ibid., pp. 371–2. 147. See for example, ‘Corte di Cassazione del Regno’, in Lavori preparatori del codice penale, vol. 3, p. 368; and ‘Corte d’Appello di Palermo’, in Lavori preparatori del codice penale, vol. 3, p. 372. 148. Ibid., p. 376. 149. Ibid., p. 375. 150. Ibid., p. 382. 151. Ibid., p. 391. 152. My translation of: ‘le misure di sicurezza, il cui disciplinamento giuridico, insieme a quello che riflette l’abitualità, la professionalità, la tendenza istintiva a delinquere e la pericolosità del delinquente, costituisce materia affatto nuova, anche riguardo ai progetti esteri, da reputarsi il pregio massimo del Progetto italiano.’ Lavori preparatori del codice penale, vol. 3, p. 398. 153. Ibid., p. 394. 154. Ibid., p. 384. 155. Ibid., p. 398. 156. Ibid., p. 391. 157. Ibid., p. 399. 158. Ibid., p. 403. 159. Ibid., p. 371. 160. Ibid.

4 A New Space of Repression 1.

According to Richard O. Collin, Mussolini himself intervened in the process so that the sentence would be innocence on account of irresponsibility. Collin does not refer, however, to the conjunction of the pronouncement on her guilt and mental illness. See Collin, La donna che sparò a Mussolini, pp. 132–3. 2. Ferri, Principii di diritto criminale, p. 826. 3. Ibid. 4. U. Spirito, Il nuovo diritto penale (Venice: ‘La nuova Italia’ Editrice, 1929), p. 139. 5. Ibid., p. 140. 6. My translation of: ‘Mentre la giustzia, dopo elaborata indagine e com tutte le cautele e le garanzie di un pubblico processo, lo assolveva, un semplice atto di ordinaria amministrazione era sufficiente a condanarlo, nonostante assoluzione. ... Con la dichiarazione di infermità di mente e com le conseguenti misure di sicurezza, non si riconosce più al delinquente il diritto di chiamarse uomo. E quale codice potrebbe mai consentire di uccidere spiritualmente?’ Spirito, Il nuovo diritto penale, pp. 141–2. 7. Rocco, La Trasformazione dello stato, p. 302. 8. Ibid., p. 300. 9. A. Marucci, ‘Misure di sicurezza (Statistiche)’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 2, pp. 567–9. 10. ‘Regolamento per gli istituti di prevenzione e di pena’, in Leggi e Decreti del Regno d’Italia, 3 (1931), pp. 3491–607. 11. Ibid.

Notes to pages 114–21

197

12. See articles 268, 269, 271, 277, 278 and 280, in ‘Regolamento per gli istituti di prevenzione e di pena’. 13. See articles 203, 204 and 205, in ‘Regolamento per gli istituti di prevenzione e di pena’. 14. My translation of: ‘Vidi genti fangose in quel pantano o uomini lordi del putridume di una vita di sporcizia, di usura, di giuco, risse, corruzione sessuale, alcoolismo, delitti d’ogni genere; tutto quanto si può immaginare di più infernale, in mezzo a un mare e sotto a un cielo di paradiso!’ Conti, ‘La pena e il sistema penale del codice italiano’, p. 791. 15. Conti, ‘La pena e il sistema penale del codice italiano’, p. 792. 16. My translation of: ‘Cristo non è mai arrivato qui, né vi è arrivato il tempo, né l’anima individuale, né la speranza, né il legame tra le cause e gli effetti, la ragione e la Storia. Cristo non è arrivato, come non erano arrivati i romani, che presidivano le grande strade e non entravano fra i monti e nelle foreste, né i greci, che fiorivano sul mare di Metaponto e di Sibari: nessuno degli arditi uomini dell occidente ha portato quaggiú il suo senso del tempo che si muove, né la sua teocrazia statale, né la sua perenne attività che cresce su se stessa. Nessuno ha toccato questa terra se non come un conquistatore o un nemico o un visitatore incompreensivo … Parliamo un diverso linguaggio: la nostra lingua è qui incomprensibile.’ C. Levi, Cristo si è fermato a Eboli (Milan: Mondadori, 1945/1969), p. 15. 17. Article 165, in ‘Testo unico delle leggi di pubblica sicurezza’, in Leggi e Decreti del Regno d’Italia, 3 (Turin: Dalla Stamperia reale, 1931), pp. 3356–426. 18. Article 164, in ‘Testo unico delle leggi di pubblica sicurezza’. 19. Articles 180, 185 and 186, in ‘Testo unico delle leggi di pubblica sicurezza’. 20. Corso, L’ordine pubblico, p. 285. 21. Guido Corso analyses this change of competence as a process of administrativization of the police system of sanctions. See Corso, L’ordine pubblico, p. 283. 22. Articles 182 and 184, in ‘Testo unico delle leggi di pubblica sicurezza’. 23. ‘Norme di attuazione, transitorie ecc. Relazione di Manzinni correta dal prof. Massari’, in ACS MGG.G, b. 11, f. 2, sf. 13. 24. Allowed by article 182 of the Bill of Public Security of 1931. 25. Modona and Pelissero, ‘La politica criminale durante il fascismo’, pp. 795–6. 26. Ibid., p. 796. 27. V. Manzini, Trattato di Diritto Penale Italiano. Quinta edizione aggiornata dai professori P. Nuovolone e G. D. Pisapia, vol. 4, ed. P. Nuovolone (Turin: Utet, 1961), p. 14. 28. Ibid., note 2 on p. 14. 29. Ibid., pp. 15–16. 30. See B. Spackman, Fascist Virilities: Rhetoric, Ideology, and Social Fantasy in Italy (Minneapolis, MN, and London: University of Minnesota Press, 1996), pp. 146–7. 31. Ibid., p. 147. 32. My translation of: ‘[dalle disposizioni che lo contemplano] dovrebbe ritenersi che la valutazione della istintiva tendenza al delinquere non potrebbe promanare da indagine psichiatrica, ma da un’indagine puramente psicologica, desunta dal delitto, dai suoi contorni obiettivi e subiettivi, e dale note personali del reo, e riserbata al giudice, il quale, secondo il suo convincimento, sarebbe chiamato a dare quella qualificazione al reo.’ See ‘Università di Messina’, in Lavori preparatori del codice penale, vol. 3, p. 123. 33. Besides Lombroso’s museum, it also featured the museum constituted mainly of the collection gathered by Pasquale Penta, the first official professor of criminal anthropology at the University of Naples, organized by his successor, Angelo Zucarelli; as well as those established in the prisons of Mantellate (organized by Achille Doria) and Carceri Nuovi

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34. 35. 36. 37.

38. 39. 40. 41. 42. 43.

44. 45. 46.

47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58.

59. 60.

Notes to pages 121–31 (created by Ottolenghi). See E. Florian, ‘Musei criminali’, in in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 2, pp. 579–81, on p. 581. Florian, ‘Musei criminali’, p. 581. E. Florian, ‘Museo di Antropologia Criminale (Università di Torino)’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 2, pp. 581–2, on p. 582. Novelli quoted by Florian, ‘Musei criminali’, pp. 579–80. E. Altavilla, ‘Delinquenti in relazione alla parte speciale del codice penale’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 1, pp. 229–31, on p. 230. G. A. Belloni, ‘Delinquenti senza reato’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 1, pp. 232–4, on p. 232. G. Novelli, ‘Riformatori Giudiziari’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 2, pp. 869–72. R. Trasimeni, ‘Statistica qualitativa della deliquenza minorile’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 2, pp. 952–60, on p. 952. Ibid., pp. 957–8. V. M. Palmieri, ‘Donna (fasi sessuali)’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 1, pp. 270–2, on p. 270. M. Gibson, Prostitution and the State in Italy, 1860–1915 (New Brunswick, NJ, and London: Rutgers, 1986), pp. 22 and 25; S. Trombetta, Dei delitti e delle donne. Criminalità femminile e internamento nell’Italia dell’Ottocento (PhD dissertation, European University Institute, 2002), pp. 22–38 and pp. 52–74. Trombetta, Dei delitti e delle donne, pp. 35–8; and Gibson, Born to Crime, p. 88. Palmieri, ‘Donna (fasi sessuali)’, p. 270. The new regime considered the killing of a newborn in the first five days after the birth an infanticide, this labelling entailing an attenuation of the penalty. Palmieri, ‘Donna (fasi sessuali)’, p. 271. T. Galimberti, ‘Zingari’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 2, pp. 1050–3, on p. 1052. Galimberti, ‘Zingari’, p. 1053. C. Musatti, ‘Omossessualità’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 2, pp. 602–5, on p. 603. Musatti, ‘Omossessualità’, p. 605. Ibid. See above pp. 98, 123. A. Niceforo, ‘Classi e categorie sociali’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 1, pp. 157–61, on p. 159. Ibid., p. 160. A. Niceforo, ‘Criminalità latente’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 1, pp. 207–9, on p. 208. Rocco, ‘Relazione a S. M. Il Re del Ministro Guardasigilli’, p. 5. Ibid., p. 11. Ibid., p. 12. P. De Francisci, ‘Discorso inaugurale del I Congresso giuridico italiano, tenuto in Campidoglio il 5 ottobre 1932, X, alla presenza del Duce’, in ‘Il I Congresso Giuridico Italiano’, in Rivista di Diritto Penitenziario, 3:5 (September–October 1932), pp. 1051–120, on p. 1051. Ibid., p. 1056. Ibid., p. 1052.

Notes to pages 131–6

199

61. U. Aloisi, ‘Le riforme fasciste nel campo del diritto e della procedura penale. (Relazione Aloisi)’, in ‘Il I Congresso Giuridico Italiano’, Rivista di Diritto Penitenziario, 3:5 (September–October 1932), pp. 1051–120, on pp. 1080–2; S. Longhi, ‘Istituti di prevenzione, di pena, di assistenza nella legislazione fascista. (Relazione Longhi)’, in ‘Il I Congresso Giuridico Italiano’, on pp. 1082–3; G. Novelli, ‘Le realizzazioni nel campo delle riforme penitenziarie fasciste. (Relazione Novelli)’, in ‘Il I Congresso Giuridico Italiano’, Rivista di Diritto Penitenziario, 3:5 (September–October 1932), pp. 1051– 120, on pp. 1084–7. 62. Aloisi, ‘Le riforme fasciste nel campo del diritto’, p. 1080. 63. Ibid., p. 1081. 64. Longhi, ‘Istituti di prevenzione, di pena, di assistenza’, p. 1082. 65. Ibid., p. 1083. 66. Mussolini, Party Programme of December 1921, quoted by Novelli, ‘Le realizzazioni nel campo delle riforme penitenziarie fasciste’, p. 1084. 67. Ibid., pp. 1085–6. 68. Alfredo Rocco, ‘L’unico regime popolare del mondo è quello fascista’, in ‘Il I Congresso Giuridico Italiano’, in Rivista di Diritto Penitenziario, 3:5 (September–October 1932), pp. 1051–120, on p. 1100. 69. De Francisci, ‘Discorso inaugurale’, p. 1059. 70. My translation of: ‘Lo Stato fascista, Stato sovrano operante su tutti i momenti della realtà, rappresenta lo sforzo di disciplinare nel modo più utile tutte le energie che si svolgono nella società nazionale; ed è Stato sovrano, che esprime la sua volontà nella forza del diritto, col quale tende ad attuare un sistema di fini ed interessi politici, economici ed etici superiori ai fini ed interessi particolari ... In questa congiuntura, il campo delle relazioni cicliche fra individuo e Stato, fra individuo e gruppi di attività e interessi, di questi gruppi fra loro e fra i gruppi e lo Stato, è un campo percorso da onde di energia che per la sua vita stessa lo Stato deve dirigere e disciplinare secondo i suoi fini superiori.’ See De Francisci, ‘Discorso inaugurale’, p. 1059.

5 Earthly Hells and Purgatories 1. 2.

See Villa, Il deviante e i suoi segni, pp. 24–35. ‘Le nouveau pénitencier pour hommes, le plus récent et le plus moderne, est situé à 30 km environ de Berlin et à 6 km de la ville de Brandeburg; il est entouré de forêts de pins. Il fut construit de 1928 à 1935 et est destiné aux condamnés à la réclusion (Zuchthausstrafe). Il y a en outre des quartiers spéciaux pour ceux qui doivent subir l’internement de sûreté (Sicherheitsverwahrung). Dans cette nouvelle construction, on a abandonné le système panoptique, comme du reste pour la construction d’autres prisons modernes, et on a donné la préférence à la forme rectangulaire des bâtiments comme présentant des avantages au point de vue de l’exploitation technique. Entre les divers bâtiments, on a prévu des voies de communication qui évitent tous les transports à travers des cours ouvertes. En ce qui concerne les matériaux employés pour les parois de séparation, on a fait usage dans une large mesure du verre, ce qui facilite grandement la surveillance. Ainsi il devient possible de contrôler depuis les corridors plusieurs ateliers et places de travail à la fois. …

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3.

4. 5. 6. 7.

8. 9. 10. 11. 12.

13. 14. 15. 16. 17. 18.

Notes to pages 136–42 La capacité normale de l’établissement est prévue pour 1800 détenus, à savoir 1036 condamnés admis à la détention en commun aussi durant la nuit et 764 condamnés isolés pendant la nuit. Les ateliers, pourvus de machines modernes, permettent d’occuper les détenus dans les métiers suivants: tissanderie, couture, reliure, papeterie, cordonnerie, sellerie, serrurerie, menuiserie, fabrication de nattes et de paillassons. Plusieurs centaines de prisonniers sont affectés à des services domestiques, à des travaux de jardinage et travaux agricoles, tandis que plusieurs autres centaines d’hommes sont occupés dans leurs cellules à différents genres de travaux. La direction s’efforce d’occuper un nombre aussi considérable que possible de détenus à des travaux agricoles et d’amélioration de terres, non seulement parce que ce genre de travail a une influence très favorable dans l’exécution des peines, mais aussi parce que les ateliers existant actuellement ne peuvent occuper qu’un tiers environ de tous les détenus. L’hôpital compte 80 lits: il y existe une section spéciale pour les hommes atteints de tuberculose ouverte et de maladies contagieuses, une salle d’opération, un laboratoire pour l’application des rayons X, une section électro-thérapeutique et une installation de désinfection. Il faut relever encore qu’on a crée ici un institut de recherches crimino-biologiques.’ Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1b, pp. 159–61. Foucault, Surveiller et punir, pp. 239 and 289. On this see also D. Melossi and M. Pavarini, The Prison and the Factory: Origins of the Penitentiary System (Totowa, NJ: Barnes & Noble Books, 1977/1981), p. 148. ‘Informations diverses’, in Revue internationale de droit pénal, 1:1 (1939), p. 233. C. Carlier, Histoire de Fresnes, prison ‘moderne’. De la genèse aux premières années (Paris, Syros, 1998), pp. 177–207. On this see also Johnston, The Human Cage, p. 43. See S. Lenci, ‘Tipologie dell’edilizia carceraria’, in M. Cappelletto and A. Lombroso (eds), Carcere e società (Venice: Marsilio Editori, 1976), pp. 336–70, on pp. 352–6. ‘Concorsi per alcuni edifici degli Istituti di prevenzione e di pena dell’urbe’, in Architettura. Rivista del sindacato nazionale fascista architetti, 17:8 (August 1940), pp. 393–412. G. F. Falchi, ‘Lavoro carcerario’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 1, pp 506–8, on p. 506. Ibid., p. 506. Ibid., p. 507. See above, pp. 111–2, 142. According to the article 145 of the Rocco Code, that income could descend to 1/3 of the stipulated salary, in practice a value to be decided by the surveillance judge. See Falchi, ‘Lavoro carcerario’, p. 508. Falchi, ‘Lavoro carcerario’, pp. 507–8. Niceforo, ‘Classi e categorie sociali’, pp. 157–61. Costa, Lo stato immaginario, pp. 264–5. Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1b., pp. 83–5. Melossi and Pavarini, The Prison and the Factory, p. 59. A general overview of this theory, its construction and appropriations can be found in Dario Melossi’s introduction, in G. Rusche and O. Kirchheimer, Punishment and Social Structure (New Brunswick, NJ, and London: Transaction Publishers, 1939/2003), pp. ix–xlv.

Notes to pages 142–9

201

19. General report on the second question of the second section, Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1a, p. 160. 20. General report on the second question of the second section, in Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1a, p. 187. 21. G. Novelli, ‘Rapport présenté par …’, in Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 3, pp. 78–97, on p. 94. 22. Novelli, ‘Rapport’, p. 81. 23. Ibid., p. 79. 24. Ibid., ‘Rapport’, p. 79. 25. G. Novelli, ‘Penitenziario (diritto)’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 2, pp. 664–71, on p. 664. 26. Ibid., pp. 667–8. 27. See above, pp. 59–60. 28. Novelli, ‘Penitenziario (diritto)’, p. 670. 29. Novelli, ‘Rapport’, p. 96. 30. Ibid., p. 86. 31. Ferri, Principii di diritto criminale, p. 66. 32. Ibid., p. 68. 33. See above, pp. 87, 97, 118 and 131. 34. General report on the second question of the second section, in Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1a, p. 158. 35. U. Conti, ‘Rapport présenté par …’, in Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 2, pp. 1–9, on p. 4. 36. On this, see Garland, Punishment and Welfare, pp. 17–18. 37. Melossi and Pavarini, The Prison and the Factory, p. 184. 38. A. V. Capelli, La buona compagnia (Utopía e realtà carceraria nell’Italia del Risorgimento) (Milan: Franco Angeli, 1988), pp. 351–2. 39. Foucault, Surveiller et punir, pp. 259 and 287. 40. Drawing on Pashukanis, the authors view in the crime the creation of a sort of contract post factum, of which the punishment is the due retribution. However, even in this interpretation it is again only the sentence, not its actual execution, which partakes of the ‘contractual reason’. Melossi and Pavarini, The Prison and the Factory, p. 184. For a similar reasoning, see Garland, Punishment and Welfare, pp. 18–19. 41. Melossi and Pavarini, The Prison and the Factory, p. 188. 42. F. Cassata, Molti, sani e forti. L’eugenetica in Italia (Turin: Bollati Boringhieri, 2006), pp. 188–211. 43. My translation of: ‘Di fronte a Dio e di fronte alle leggi gli uomini possono e debbono per necessità considerarsi uguali, ma di fronte alla biologia e psicologia umana individuale non esistono uguali, ma individui dissimili e disuguagli, cioè individui o gruppi di individui dissimili e disuguagli, cioè individui o gruppi di individui diversi gli uni dagli altri, per capacità fisiche e psichiche, per somma di valori muscolari, di valori morali, di valori intelletualli, calcolabili, commerciabili, utilizzabili nella realtà sociale, cioè nel grande mercato dei valori umani. E quanto alla libertà, essa è sempre per l’individuo, che vive nell’aggregato sociale, per quanto primitivo esso sia, tanto più poi se è civilmente progredito, una libertà condizionata, cioè ridotta e regolata dalle esigenze della collettività e dell’organismo statale a vita unitaria, di cui l’individuo fa parte. E noi italiani sopratutto, che oggi in grazia della rivoluzione fascista abbiamo dato un colpo forse decisivo per la forma di pensiero, che d’ora innanzi dominerà il mondo, ai suricordati e tutt’altro che immortali principi della rivoluzione francese, pur mantenendoci con

202

44.

45. 46. 47. 48. 49. 50.

51. 52. 53.

54. 55. 56. 57. 58. 59. 60. 61. 62.

63.

64.

Notes to pages 150–5 sano equilibrio lontani dalle esagerazioni uniformizzatrici e già in via di revisione del comunismo sovietico, noi italini saremo oggi più di ogni altro popolo in grado di comprendere come anche la tradizionale libertà nella scelta dell’ufficio, del mestiere, della forma di attività produttrice dei singoli cittadini, debba d’ora innanzi essere severamente controllata e regolata dall’intervento dello Stato.’ See N. Pende, Bonifica umana razionale e biologia politica (Bologna: Licinio Cappelli, 1933), pp. 141–2. R. A. Soloway, Demography and Degeneration: Eugenics and the Declining Birthrate in Twentieth-Century Britain (Chapel Hill, NC, and London: The University of North Carolina Press, 1999), pp. 73–4; and D. J. Kevles, In the Name of Eugenics: Genetics and the Uses of Human Heredity (Cambridge, MA, and London: Harvard University Press, 2001), pp. 76 and 85. Kevles, In the Name of Eugenics, pp. 112 and 116. Ibid., p. 116. Rocco, La Trasformazione dello stato, p. 231. A. H. de Oliveira Marques, História da Primeira República Portuguesa. As estruturas de base (Lisboa: Iniciativas Editoriais, 1978), p. 451. See S. Pereira Bastos, O Estado Novo e os seus vadios: contribuição para o estudo das identidades marginais e da sua repressão (Lisboa: Publicações Dom Quixote, 1997), p. 126. ‘Reorganização dos serviços prisionais. Decreto-lei nº 26643’, in Diário do Governo, n. 124, 1ª série (28 de Maio de 1936), 1937. See P. Cannat, ‘Le système pénitentiaire du Portugal’, in H. Donnedieu de Vabres and M. Ancel (eds), Les grands systèmes pénitentiaires actuels (Paris: Recueil Sirey, 1950), pp. 287–97, on pp. 287–8. A. Niceforo, ‘Criminologia’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 1, pp. 209–21, on p. 220. See D. Ramada Curto, ‘Contributions to a History of Criminal Anthropology’, in Portuguese Studies, 14 (1998), pp. 104–21, on pp. 116–7. Among other works, we can cite: Q. Saldãna, La Criminologie Nouvelle (Paris: Presses Universitaires de France, 1929); M. Ruiz-Funes, Endocrinología y criminalidad (Madrid: Javier Morata, 1929). L. San Martin Losada, El Codigo penal de 1928: su Estudio y Comparación con el de 1870 (Madrid: Imprenta Clasica Española, 1928). A.Vallejo Nágera, ‘La psiquiatría en el nuevo código penal’, in El Siglo Médico, 3931 (13 April 1929), p. 2. Trinidad Fernández, La defensa de la sociedad, p. 341. Ibid., pp. 342–6. E. Cuello Calón, Criminalidad Infantil y Juvenil (Barcelona: Bosch, 1934), p. 80. A. Rodríguez Dranguet, Defensa social: tratamiento de los peligrosos: legislación de vagos y maleantes: ley y reglamento (Madrid: Góngora, 1935), p. 203. Ibid., p. 202. Ibid., pp. 212–20. J. Rodrigo, Los campos de concentración franquistas: entre la historia y la memoria (Madrid: Siete Mares, 2003); J. Rodrigo, Cautivos: campos de concentración en la España franquista, 1936–1947 (Barcelona: Crítica, 2005). ‘El primer campo de concentración de vagos y maleantes’, in Estampa, 18 August 1934, cited by M. Barragán-Lancharro, Blog, published on 11 March 2011, at http://historiademonesterio.blogspot.fr/2011/03/manuel-azana-en-plena-oratoria-uno-de.html [accessed 29 March 2013]. A. L. Pereira, Darwin em Portugal: Filosofia, História, Engenharia Social (1865–1914) (Coimbra: Almedina, 2001), pp. 483 and 493. It is interesting to compare this kind of

Notes to pages 155–8

65. 66. 67.

68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78.

79. 80. 81. 82. 83. 84. 85.

86. 87.

88. 89.

203

eugenics with that based on the discoveries of Mendel, influent in the United States and Great Britain. See Kevles, In the Name of Eugenics, p. 69. I. Liberato, Sexo, Ciência e Exclusão Social. A tolerância da prostituição em Portugal (1841–1926) (Lisboa, Livros do Brasil, 2002), pp. 133–5. Pereira, Darwin em Portugal, pp. 492–4. E. Moniz, A vida sexual: Fisiologia e Patologia, revista e aumentada, 8th edn (Lisboa: Casa Ventura Abrantes, 1901/1929), p. 273. See A. Mendes Correia, Crianças delinquentes. Subsídios para o estudo da criminalidade em Portugal (Coimbra: Typ. França Amado,1915) cit. Liberato, Sexo, Ciência e Exclusão Social, p.111; and A. de Oliveira, Criminalidade e educação (Paris and Lisbon: Livrarias Aillaud and Bertrand, 1918), pp. cx–cxviii. Liberato, Sexo, Ciência e Exclusão Social, pp. 133–5. Soloway, Demography and Degeneration, p. 85. Liga Portuguesa de Profilaxia Social, Historial, at http://www.lpps.pt/contents. php?t=1x1&i1=HISTORIAL [accessed 30 March 2013]. J. Noguera, Moral, Eugenesia y Derecho, intro. G. Marañón (Madrid: Javier Morata, 1930), p. xviii. Noguera, Moral, Eugenesia y Derecho, p. xx. Ibid., p. 61. Ibid., p. 166. Ibid., pp. 157, 200. G. Marañon, ‘Prólogo’, in F. de Haro, Eugenesía y matrimonio. El certificado médico prenupcial (Madrid: Javier Morata, 1932), p. 11. F. de Haro, Eugenesía y matrimonio, p. 22. E, Montero y Gutiérrez, Neomalthusianismo, eugensía y divorcio (Madrid: Imprensa Nacional Juan Bravo, 1932), p. 70; E. Pérez Hervada, Los males del alma y Eugenesía (La Coruña: Imprensa Morat, 1934), pp. 50–5. A. Vallejo Nágera, La asexualización de los psicópatas (Madrid: Ediciones Medicina, 1934), p. 117. Ibid., p. 5. Ibid., p. 117. C. Fernandez-Ruiz, Eugenesía y esterilidad (San Sebastián: Editorial Española, 1939), pp. 17, 137–8. S. Cayuela Sánchez, La biopolítica en la España franquista (PhD dissertation, Universidad de Murcia, 2011), pp. 60–72. I. Flunser Pimentel, ‘A assistência social e familiar do Estado Novo nos anos 30 e 40’, in Análise Social, 34:151/2 (1999), pp. 477–508. Pope Pius XI, Casti Connubii. Del Matrimonio Cristiano in ordine alle condizioni, ai bisogni, ai disordini presenti della famiglia e della società. Lettera encíclica di Sua Santità Papa Pio XI (Rome: Unione Donne di azione cattolica, 1930/1937), p. 46. My translation of: ‘Le pubbliche autorità, poi, non hanno alcuna potestà diretta sulle membra dei sudditi’, Pope Pius XI, Casti Connubii, p. 47. The theological grounds of this view appear to rely once again on the authoritative precepts of Saint Thomas, for whom the means to prevent ‘evil’ could not include corporal lesions. Pope Pius XI, Casti Connubii, p. 47–8. Manzini, Trattato di Diritto Penale Italiano, p. 237n. My transalation of: ‘la più squisita sentimentalità di nostra gente latina è poi assolutamente contraria all’adozione di certi metodi di profilassia contro la delinquenza che alcune esotiche nazioni hanno adottato e che per noi risultano altresì discutibili dal

204

Notes to pages 159–62

punto di vista biologico e di speciosa importanza igienica razziale come, ad es., la castrazione, la sterilizzazione o la eliminazione di certi delinquenti e di certi psicopatici’. G. G. Perrando, ‘Antropologia criminale’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 1, pp. 53–72. 90. P. Manunza, ‘Sterilizzazione (Eugenetica)’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 2, pp. 960–72, on p. 971. 91. This was otherwise the position of the Italian League of Hygiene and Mental Prophylaxis (Lega italiana di Igiene e profilassia mentale), which, in May 1938, deliberated similarly on the matter. Manunza, ‘Sterilizzazione (Eugenetica)’, p. 970–1. 92. These positions reflected those of the major criminologists of the time, as Santo De Sanctis, and of the eugenic associations active since the 1920s. Manunza, ‘Sterilizzazione (Eugenetica)’, p. 970–1. See also the entry by V. M. Palmieri, ‘Impotenza (Procurata)’, in E. Florian, A. Niceforo and N. Pende (eds), Dizionario di criminologia, vol. 1, pp. 432–5, on p. 434. For a historical analysis, see Cassata, Molti, sani e forti, pp. 135–40. 93. Manunza, ‘Sterilizzazione (Eugenetica)’, p. 972. 94. This procedure was intent upon divesting these women of their sexual instinct, contrasting with simple sterilization, which, since it guaranteed that they would not fall pregnant, could instead function as a stimulant to increase sexual activity. Manunza, ‘Sterilizzazione (Eugenetica)’, p. 971. 95. Manunza, ‘Sterilizzazione (Eugenetica)’, p. 972. 96. See Palmieri, ‘Impotenza (Procurata)’, pp. 432–5. 97. G. L. Mosse, L’immagine dell’uomo. Lo stereotipo maschile nell’epoca moderna (Turin: Einaudi, 1997), pp. 207–37. 98. Spackman, Fascist Virilities, pp. 154–5. 99. Mosse, L’immagine dell’uomo, p. 220. 100. Spackman, Fascist Virilities, p. 155. 101. D. Camporredondo Fernandez, ‘Rapport présenté par ...’, in Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 4, pp. 14–22, on p. 19. This statement is a literal reproduction of that of the Spanish criminologist, Vallejo Nágera: ‘In Italy and France a large number of castrations and sterilizations were practised, albeit always in breach of the law and with no eugenic ends.’ According to the criminologist, they targeted sexual offenders. ‘En Italia y en Francia se han practicado numerosas esterilizaciones y castraciones, pero siempre al margen de la ley y con otros fines que los eugenésicos’, in Vallejo Nágera, La asexualización de los psicópatas, p. 37. 102. T. Rittler quoted in L. Cornil, ‘Report on the First Question of Section I’, in J. S. Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Prague, vol. 1a, pp. 43–7. 103. T. Rittler quoted in Cornil, ‘Report on the First Question of Section I’, p. 43. 104. ‘Questions’, in Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1b, p. 86. 105. ‘Commentary’, in Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1b, p. 87. 106. Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1a, pp. 313–49 and pp. 496–511. 107. He referred namely to those of Oberholzer (1911), Frank (1925), Hackfield (1933) and Wolff (1934). F. Naville, ‘General Report on the First Question of section III’, in Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1a, pp. 313–27, on p. 319.

Notes to pages 162–6

205

108. Naville, ‘General Report on the First Question of Section III’, p. 316. 109. Ibid., pp. 317 and 344. On the Nazi sterilization law, see Wetzell, Inventing the Criminal, pp. 254–60. 110. Naville, ‘General Report on the First Question of Section III’, p. 322. 111. Ibid., pp. 322–3. 112. Ibid., pp. 324–5. 113. François Naville and Arthur Gütt German, general director in the Ministry of Internal Affairs of the Reich and penal law professor in Berlin. 114. Nicolas Jorgulescu Romanian, doctor, university professor and medical adviser in the Justice Ministry in Bucharest. 115. C. Metod Dolenc, Yugoslavian, university professor in Ljubljana and Spanish criminologist Quintiliano Saldaña. See Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1a, pp. 348–9. 116. See Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1a, pp. 348–9, pp. 496–509. 117. See Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1a, pp. 87–8. 118. See Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1a, p. 88. 119. Ferdinand Kadecka (Austria) – official delegate; F. Collin, Léon Cornil, Paul Cornil and J. Rubbrecht (Belgium) – the first three official delegates; Federico Nielsen Reyes (Bolivia) – official delegate; Cândido Mendes de Almeida (Brazil) – official delegate; V. De Porto-Seguro (Chile) – official delegate; Quintiliano Saldaña (in the name of Spain) – official delegate; Paul Mintz (in the name of the delegation of Leetonia) – official delegate; Karolis Zalkauskas (in the name of the delegation of Lithuania) – official delegate; Alberto Benavides Canseco (Peru) – official delegate; Stefan Glaser, Georges Sliwowski, W. Wolter and Hélène Wiewiorska (Poland) – only W. Wolter being an official delegate; José Beleza dos Santos (Portugal) – official delegate; H. Aznavorian, Georges Chiriac, J. Jonesco-Dolji, Nicolas Jorgulescu, Vespasien Pella, Constantin Ratescu, Georges Solomunescu (Romania) – with the exception of the latter, all official delegates; Emile Lány (Czechoslovakia) – official delegate; J. T. Carillo Marquez and Ramon Vargas (Venezuela) – official delegates. See ‘Liste des membres du congrès’, in See Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1b, pp. 9–42. 120. ‘General Report to the First Question of Section III’, Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1a, p. 315. 121. See above, p. 165. 122. See above, p. 120. 123. Rodríguez Dranguet, Defensa social, pp. 197–220; and E. Monteiro, ‘La politique criminelle sous Salazar: approche comparative du modèle État autoritaire’, in Archive de Politique Criminelle, 20 (1998), pp. 141–60. 124. S. Kühl, The Nazi Connection: Eugenics. American Racism, and German National Socialism (Oxford: Oxford University Press, 1994), especially on pp. 53–63 and pp. 77–84. 125. On France’s exceptionalism with regard to the eugenic programmes of the interwar period, see L. Mucchielli, ‘Criminology, Hygienism, and Eugenics in France, 1870– 1914: The Medical Debates on the Elimination of “Incorrigible” Criminals’, in P. Becker and R. F. Wetzell (eds), Criminals and their Scientists, pp. 207–29, on pp. 228–9.

206

Notes to pages 166–74

126. E. S. Rappaport, ‘Le futur code pénal du troisième Reich’, in Revue internationale de droit pénal, 12ème année (1934), pp. 279–303; P. de Casabianca, ‘Tribunaux d’exception des Etats totalitaires’, in Revue internationale de droit pénal, 14ème année (1937), pp. 235–47. 127. Legal historians such as Neppi Modona, Mario Sbriccoli, Cesare Salvi and Pietro Costa have described this trend, contrary to the principle of legality, among the more radical militant jurists, such as Giuseppe Maggiore and Sergio Pannunzio (in the penal field, Giuseppe Maggiore, defended the application of the principle of analogy for crimes not defined in the law). See Sbriccoli, ‘La penalistica civile’, p. 226. 128. Ibid., p. 188. 129. Although also referring to the need to preserve standards of hygiene, the German report read: ‘In principle, the standard of life of inmates must not be higher than that of the poorest citizens’ ‘Par principe, le standard de vie des détenus ne doit pas être plus élevé que celui des citoyens les plus pauvres’. See general report on the second question of the second section, in Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1a, p. 165. 130. See general report on the second question of the second section, in Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, vol. 1a, p. 166. 131. See general report on the second question of the second section, in Van Der Aa (ed.), Actes du Congrès Pénal et Pénitentiaire International de Berlin, pp. 164–7. 132. This feature has long been singled out by various historians of the Italian penal system. See, for example, D. Melossi, ‘Carceri’, in F. Levi, U. Levra and N. Tranfaglia (eds), Storia d’Italia. Annali, 1 (Florence: La Nuova Italia, 1978), pp. 81 and 83; and S. Carrafiello, ‘The Tombs of the Living’: Prisons and Prison Reform in Liberal Italy (New York: Peter Lang Publishing, 1998), pp. 105–8. 133. Pende, Bonifica umana razionale, pp. 227–32.

Conclusion 1. 2. 3.

4.

5.

M. Werner and B. Zimmermann, ‘Penser l’histoire croisée: entre empirie et réflexivité’, in Annales HSS, 1 (2003), pp. 7–36, on pp. 18–19. G. Agamben, Homo sacer. Il potere sovrano e la nuda vita (Turin: Einaudi, 1995), pp. 31–2; and G. Agamben, État d’Exception (Paris: Éditions du Seuil, 2003), pp. 56–70. My translation of: ‘la contrapposizione è netta: una contrapposizione tra il mondo dei valori e il mondo della natura, tra il regno della libertà e quello della necessità’. P. Nuvolone, ‘La parte generale del codice Rocco’, La questione criminale, 7:1 (January–April 1981), p. 39. After the Second World War, at the last International Penal and Penitentiary Congress (Hay 1950), the penal treatment of ‘habitual delinquents’ was included in the list of topics to be debated (section 2, question 2). Although the cumulative system of penalties and security measures was refused, the congress declared that the traditional penalty was not adequate for this type of criminal and should be replaced by a relatively indeterminate sentence. See T. Sellin (ed.), Douzième Congrès Pénal et Pénitentiaire International. La Haye, 14–19 août 1950. Actes publiées par le Secrétaire-Général du Congrès Dr. …, vol. 1 (Berne: Bureau de la Commission Pénitentiaire Internationale, 1951), p. 627. Markus Dirk Dubber’s observations on the departure from the enlightened ideal of an empathic identification between judges and judged throughout the nineteenth century penology also points to this lack of social reflexivity in the practice of judging as structural to the modern penal systems. See Dubber, ‘The Right to Be Punished’, p. 145.

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INDEX

absolutism and penal law, 15–16, 20, 24, 28 Agamben, Giorgio, 173 Aloisi, Ugo, 63, 90, 131 Altavilla, Enrico, 122–3 anti-Semitic laws of 1938 (Italy), 5 atavism (theory of ), 39–40, 128. 147 Azaña, Manuel, 154 Beccaria, Cesare, 42, 102, 143 Becker, Peter, 18 Beltrani-Scalia, Martino, 138 Benadusi, Lorenzo, 97 Bentham, Jeremy, 20 Bismarck, Otto von, 85 Blasio, Alfonso De, 89, 94 Bombarda, Miguel, 24, 155 Bill of 24 May 1885 on recidivism (France), 34 Capello, Luigi, 71 Carlier, Christian, 137 Carrara, Francesco, 21 Carrara, Mario, 43 Casabianca, Pierre de, 166 Cassata, Francesco, 149 Catholic Church and penal reform, 20–1 Carta del Lavoro, 4 Centre of Penitentiary Studies (Centro di studi penitenziari Alfredo Rocco), 122 civilian tradition of the law, 8, 49 and Napoleonic codes, 3–4, 8–9, 17, 20, 96 classical juridical tradition, 6–7, 60 and fascist Italy, 67, 85, 88, 111, 131

and Nazi Germany, 62 and the Soviet Union, 62, 67 codification, 15, 19 and the Enlightenment, 12, 15, 47 Colombo, Giorgio, 39 common-law tradition, 19, 47, 96 and the international penal organizations, 63 Conti, Ugo, 18, 106, 115, 145 correctionalism, 23–4, 31, 33–5, 58, 124, 138, 155 Correia, António Mendes. 155 Costa, Pietro, 62, 141 criminality in Italy, 36, 45, 75–6, 61, 122, 128, 137 criminals see juvenile delinquency; mental illness; recidivism classification of, 37–40, 46, 102–8, 123 and ‘moral madness’, 37, 39–40, 83 ‘born criminals’, 39, 45, 88, 92 ‘criminals without crime’ (delinquenti senza reato), 123 ‘dangerous criminals’, 31–4, 45–6, 66, 79, 89, 106, 127, 151–2 ‘habitual criminals’, 77 concept of, 2, 23, 123 ‘incorrigibles’, 23–5, 32–3, 35, 58, 138, 150–1 ‘instinctive delinquents’, 79 juridical codification of, 88–93, 105, 120, 148 ‘mattoids’, 38 and penal responses, 31–5, 45–6, 105 and the Prison Act of 1989 (England), 1898 ‘politico-social criminals’, 46

– 221 –

222

Crime and the Fascist State, 1850–1940

‘professional criminals’, 25, 32, 105, 120, 123 ‘sexual criminals’, 124, 162, 164 ‘delinquent by tendency’ (delinquente per tendenza), 92–4, 105, 120, 123, 128–9, 148 criminal anthropology (Italy), 30, 35–47, 75, 88, 125, 127–8, 135, 174 in Portugal, 24, 151 in Spain, 24, 151–2, 157 criminal museums, 39, 121 criminal positivism see criminal anthropology; French school of criminal anthropology; Italian positivist school criminal responsibility, 6, 17–8, 109 and the concept of ‘free will’, 16, 18, 22, 89, 92, 110 and the concept of ‘guilt’, 20–1, 23, 89, 98 Cuello Calón, Eugenio, 152–3 D’Amelio, Mariano, 3, 63–4, 88 ‘dangerousness’ and gender, 124–6 and gypsies, 126 and homosexuals, 126–7 and minors, 124 and the Prevention of Crime Act of 1908 (England), 31 and social class, 127 in Norway, 32 in Portugal, 24, 151 in Spain, 24, 152–4 in Switzerland, 32 concept of, 2, 22, 31–5, 45, 60, 64, 66, 88, 102, 105–6, 112–29, 149, 172 index of, 124 ‘dangerous classes’, 28 Dante, 115 death penalty, 26, 91–2, 94, 99 Declaration of Human Rights, 20 ‘degeneration’ and recidivism, 32–3, 45 concept of, 38 Dorado Montero, Pedro, 153 double-track system, 89, 99, 111, 137, 151, 173–4 Ducpétiaux, Éduard, 27 Durkheim, Émile, 148

Elmira correction house (New York), 34 endocrinology, 151–2 and biotypology (or constitutional types), 140, 149, 151, 157 epilepsy, 37–40 eugenics, 60, 93, 150 criminal eugenics, 13, 150 and the international penal arena, 161–6 in England, 164 in Germany, 162, 164–5 in Italy, 159–60, 164 in France, 160, 164 in Portugal, 154–6 in Spain, 156–7 ‘Latin eugenics’, 158–9, 168–9 and Catholicism, 150, 155–9, 163, 168 and neo-Malthusianism, 155–7 in Denmark, 150, 162 in England, 155 in Finland, 150 in Germany, 150, 169 in Italy, 168–9 in Sweden, 150 in Switzerland, 150, 162 in the United States, 150, 169 Farmer, Lindsay, 19, 60 fascism concept of, 11, 72–5, 101, 132–3, 149 and Catholicism, 81, 97–8, 131, 149–50 and the concept of ‘ethical state’, 75, 81–3, 99–101, 129 and the concept of fascist revolution’, 2, 73, 82–3, 87 and the concept of ‘state personality’, 86–7, 96–7, 101, 118, 131, 143–4, 148 and the crime of laesa maiestas, 96 and the French Revolution, 149 and magistrates, 102–4, 107, 111 and National Socialism, 167–9 and paramilitary squads (squadrismo), 78 and the penal code, 7, 10, 84, 130, 132 and prisons, 78–9, 102–3, 112–3 and the ‘race’, 5, 11, 95, 101, 116, 131, 157–8, 169 and the repression of homosexuality, 97–8, 126–7 and the Russian Revolution, 73–4, 149 and state reform, 69–75, 81–4

Index Faye, Jean-Pierre, 73 Felice, Renzo De, 2, 69–70 Ferrero, Guglielmo, 43 Ferri, Enrico, 1–2, 30, 36–8, 42–7, 62–3, 66, 99, 104, 109–110, 144, 148 Ferri Project of a Penal Code (1921), 44–7, 69, 95, 148 First Italian Juridical Congress, 81 First World War and criminality, 61, 66, 124 and dysgenic consequences, 58 and penal reform, 3, 129–30, 171 Florian, Eugenio, 92, 122 Franchi, Bruno, 103–4 Francisci, Pietro De, 130 Franco, Francisco, 152, 158 French Revolution and penal codes, 4, 8, 20 French School of criminal anthropology, 42 Freud, Sigmund, 49 Frigessi, Delia, 41 Forel, Auguste, 162 Foucault, Michel, 39, 136, 147 Garland, David, 58, 60 Garofalo, Raffaele, 30, 36, 63, 88, 99 Gentile, Giovanni, 75 Gibson, Mary, 75 Gibson, Violet, 1–2, 4, 109–10, 175 Gismondi, Antonio, 90 Gonçalves, João, 24 ‘good government’ (concept of ), 19 Grandi, Carlino, 36 Gütt, Arthur, 164 Hacker, Ervin, 61 Hamel, Gerard Anton Van, 30, 33–3, 66 Haro, Francisco de, 157 Hegel, Georg W. F., 85 Hitler, Adolph, 160 homosexuality decriminalization of, 21 repression of, 94, 97–8, 126–7, 162 Howard Association (England), 51 Howard, John, 143 hysteria, 40, 129

223

indeterminate sentences, 3, 31, 60, 66, 111, 143 and the common law tradition, 25, 31 and the Ferri Project, 46–7 and the International Union of Penal law, 32–5, 60 in Spain, 153 Institute for the Scientific Treatment of Delinquency (England), 51 International Commission of International Police, 51 International Conferences for the Unification of Penal Law, 50–2, 56–7, 62–3 international crime, 48, 52, 57 international criminal court, 50, 59 International Congresses of Criminal Anthropology, 30–1, 36–40, 56 International Congress on the Prevention and Repression of Crime including Penal and Reformatory Treatment, 26 International Institute of Sociology, 51 International Law Association, 51 International Penal and Penitentiary Commission, 29, 48, 57, 59 International Penal and Penitentiary Congresses, 5, 25, 27–9, 31, 44, 48–9, 53, 55–6, 62–5, 141–2, 161–5, 167 International Union of Penal Law (International Kriminalistische Vereinigung), 30–1, 44–5, 49, 50 International Association of Penal Law (since 1924), 49, 63 International Congresses of Penal Law, 52, 56, 65–7 Italian positivist school, 1–2, 22, 43–7 and fascism, 2, 79, 88, 91, 104, 109 Jannitti, Alfredo, 90 Jannitti, Eugenio, 90 Jimenez, Inocencio, 65 Jiménez de Asúa, 153–4, 157 judiciary reform of 1941, 5 juridical socialism, 7 juridical tradition concept of, 6–9, 11 juvenile delinquency, 23, 26, 31, 45, 58, 75–7, 79, 88, 105, 124, 153 institutions for juvenile delinquents

224

Crime and the Fascist State, 1850–1940

in England (Prevention of Crime Act of 1908), 31 in Italy, 79, 124 in Portugal, 155 in Spain, 153 Kallis, Aristotle, 11 Kant, Immanuel, 85, 99 Khül, Stefan, 166 Kirchheimer, Otto and Rusche, Georg, 142, 167 Kraepelin, Emil, 30 Kriminalbiologische Gesellschaft (Austria), 51 Law of 24 November 1933 (Law against Dangerous Habitual Delinquents) (Nazi Germany), 162 Laburu, Father, 156 Lacassagne, Alexandre, 30, 35 Lascoumes, Pierre, 8 Lateran Pacts (1929), 72 Le Dantec, Félix, 155 Lenci, Sergio, 137 Levi, Carlo, 116 Ley de Vagos y Maleantes (Bill of Vagrants and Troublemakers), 153–4, 166 Longhi, Silvio, 131, 164 Lucchini, Luigi, 94 Lusignoli, Aldo, 104 League of Nations, 48, 52, 57 Lenoël, Pierre, 8 Liszt, Franz Von, 30, 34, 50, 66 Lombroso, Cesare, 30, 35–6, 38–9, 40–4, 121, 128–9, 148, 151 Mangini, Ruffo, 90 Manzini, Vincenzo, 62–3, 118–9, 158 Marañon, Gergorio, 157 Marro, Antonio, 37 Marzola, Paola, 43 Massari, Edoardo, 62–3, 90, 118 Matos, João da Silva, 27 Matos, Júlio de, 24, 155 Melossi, Dario, 147 Mendel, Gregor, 155

mental illness, 17 and crime, 47, 77, 88, 98, 105, 110, 112–3, 126 and eugenics, 150 Mittermaier, Carl J. A., 27 Modona, Neppi, 118 Moniz, Egas, 155 Mortara, Ludovico, 45 Mosse George, 159 Mussolini, Benito, 1–2, 4, 62, 70–3, 77–8, 87–8, 90–1, 94, 99–100, 110, 131, 159–60, 165, 175 attempts against, 1–4, 71, 99, 109–11, 175 Naville, François, 162, 164 Niceforo, Alfredo, 122, 127–8 neo-classical school of penal thought see technical-juridical school of penal thought Noguera, Joaquín, 156 Novelli, Giovanni, 121, 131, 142–4 Nuvolone, Pietro, 174 Oliveira, Father António de, 155 Oneca, Antón, 153 Orlando, Vittorio Emanuele, 86 Ottolenghi, Salvatore, 44 pandectistic, 85 Pareto, Vilfredo, 128 Patrizio, Mariano, 43 Pavarini, Massimo, 147 Pears, Edwin, 28 Pelissero, Marco, 118 Pella, Vespasien, 49, 50 penalty concept of, 45, 58, 64, 89 penal code Belgium, 50 Czechoslovakia, 50 Germany (1933), 135 Greece, 50 France, 50 Italy of 1889 (Zanardelli Code), 47, 97, 101, 106–7, 118, 126, 130–1 of 1930 (Rocco Code), 3–4, 7, 9, 30, 63, 87–101, 111, 119

Index military, 72 Poland, 50 Romany, 50 Spain, 50 of 1928, 152 of 1932, 153 Soviet Union (1921), 4 Yugoslavia, 50 penal deportation in France, 22 in Portugal, 23 in Spain, 23–4 penal sanctions types of, 46–7 and social class, 111 Pende, Nicola, 122, 149, 169 penitentiaries and the panopticon, 135–6 in Portugal, 23–4 in Spain, 24 models of, 26–7, 135–8, 174–5 penitentiary law, 143–8, 151, 168 penitentiary science, 28, 53, 55, 137–8 penitentiary work, 26, 137–43, 167 Pius XI, Pope, 158 police law, 20, 22, 65–6 sanctions, 23, 77–8, 98, 102, 115–20 Polícia de Segurança Pública (Public Security Police) (Portugal), 151, 166 Poncelat, Pierrette, 8 Primo de Rivera, Miguel, 152, 156 principle of legality (nullum crimen, nulla poena sine praevia lege), 6, 15–17, 108, 145–6, 172–3 and totalitarian states, 166 principle of less eligibility of the prison, 142, 147, 167 principle of the non-retroactivity of penal law, 6, 60 Prins, Adolphe, 30, 34 protection of liberated prisoners, 26, 57, 131–2 psychiatry, 40, 120 psychology, 120, 122, 127–9, 148–9, 158, 174 of the masses, 73, 132 psychosis, 37–8

225

public morality, 16, 21, 78, 91, 93–8, 157 public opinion and criminal repression, 45, 93–8 Public Security (Pubblica sicurezza) (Italy) Bill of Public Security of 1889, 23 fascist laws of, 70, 111–2, 117–8 institutions of, 124, 126 Puglia, Ferdinando, 36 Radzinowicz, Leon, 30 Rappaport, Émile, 166 recidivism, 12, 22, 123, 138, 172 and the international penal organizations, 31–5 international, 51 in Czechoslovakia, 65 in England, 25 in France, 22 in Italy, 23, 77, 88 in Poland, 65 in Portugal, 23 in Scotland, 25 in Spain, 24 in the United States, 25 see also criminals Regener, Susan, 39 religious offenses, 20, 131 Rittler, Théodore, 161 Rocco, Alfredo, 3, 61–2, 66, 69–78, 80–4, 87–90, 93, 96, 98–101, 110, 121, 129–30 Rocco, Arturo, 62–3, 73, 102, 86–7 Roeder, Auguste, 31 Romano, Enrico, 90 Ruiz-Funes, Mariano, 152, 154 Rusche, Georg and Kirchheimer, Otto, 142, 167 Russel, Withworth, 27 Rusticucci, Luigi, 79 Sabatini, Guglielmo, 106 Saint-Fargeau, Lepeletier de, 17 Salazar, António de Oliveira, 156, 160 Saldaña, Quintiliano, 49, 50, 152, 164 Salvi, Cesare, 85 Saporito, Filippo, 142 scientific police, 44 Schmitt, Carl, 173

226

Crime and the Fascist State, 1850–1940

Scuola Positiva see Italian positivist school Schnapper, Bernard, 35 secularization, 20 and criminal responsibility, 21 and the juridical professions, 22 security measures, 32, 35, 57–8, 60, 63–5 in Argentina, 66 in Belgium, 66 in China, 66 in Denmark, 66 in Germany, 66 in Italy, 66, 88–92, 102–8, 110, 112–5 in Mexico, 66 in Norway, 32 in Peru, 66 in Poland, 66 in Portugal, 66 in Spain, 66 in the Soviet Union, 66 in Switzerland, 32 in Uruguay, 66 in Yugoslavia, 66 Sergi, Giuseppe, 30 Silva, Rodolfo Xavier da, 24 social contract (theory of ), 2, 17, 86, 146–8, 165 ‘social defence’ concept of, 43, 60, 79, 109, 173 and the Rocco Code, 106–7 Socialist Party (Italian), 2 Società di antropologia e sociologia criminale (Italy), 51 Société de Législation Comparée (France), 28 Société de profilaxie criminelle (France), 51 Société Générale des Prisons (France), 49 Soviet Penal Code of 1921, 4

Spackman, Barbara, 120, 159–60 Special Tribunal for the Defence of the State (Italy), 71, 97, 109, 110, 118 Standard Minimum Rules for the Treatment of Prisoners, 57, 59, 145 Statuto of 1866 (Italy), 3 sterilization of criminals, 58, 150, 158–9, 161–3 of ‘degenerates’, 155, 158–9, 161–3 of the ‘feeble-minded’, 150 Stoos, Charles, 32 Stroothenke, Wolfgang, 158 Sureda, Father, 156 surveillance judge, 63–5, 102–3, 105, 122, 140, 145 suspicion, 22, 116 Tallack, William, 25 Tarde, Gabriel, 30 Tarello, Giovanni, 165 technical-juridical school of penal thought (‘Third School’), 43, 62, 69, 85–7, 94, 118, 144 territoriality of penal law, 57–9 and delicta iuris gentium, 51, 58 Trinidad Fernández, Pedro, 153 Tullio, Benigno di, 43 Ungari, Paolo, 74, 81 Vabres, Henri Donnedieu de, 49, 166 Vallejo Nágera, Antonio, 157 Villa, Renzo, 38, 41–2 Volunteer Militia for National Security (Italy), 72, 117 Zaniboni, Tito, 71