It is rather well known that - as far as legal reforms were concerned - the Italian Penal Code is still, in a largely revised form, the Penal Code introduced in 1930 and named after the Minsiter of Justice, Alfredo Rocco. Rocco had devised the legal reform in the general context of his "reform of the state" - a key moment on the establishment of the Fascist Regime and the ultimate goal of the Nationalist Group that had in Rocco one of its most influential leaders - even if the practical formulation of the Code had been handled for the most part by Alfredo's brother Arturo, who was, unlike the first, more of a lawmaker and less of an ideologist.

Now, the so called Rocco Code, which had in fact been composed over around five years under the supervision of another jurist, Vincenzo Manzini, was in various aspects a sound and necessary update of the 1889 Zanardelli Code. It suffered of course from the general inspiration that the fascist doctrine of the state and Rocco's own beliefs.

I won't really go into details on the various problems with specific points of the Code. It had been subject to numerous revisions and talks of replacing it had begun already during the formulation of the Italian Republican Constitution and covering the entire debate would be beyond my knowledge. But I'll try to shed some light on its "fundamental flaws" that flow back to Rocco's concept of the modern State.

Rocco's formative years and the years of his first political experience were marked by the belief that a crisis of the liberal system was taking place and that its most prominent symptom was a crisis of the parliamentary institutions. Many attempted a solution to the issue (essentially by cohorting the mass forces of the age - socialists and catholics) into the parliamentary establishment, while others believed that there was no way (or reason) of involving the masses with the Parliamentary system – that the democratic institutions were proper of a liberal-oligarchic system and that the rise of the mass participation to political life signalled the need for a “new State”. As Alfredo Rocco had explained in 1914: The parliamentary system was dead and the Giolitti system which had followed was proof that it was gone for good. And with it had gone all that small, arcadic world of sensitivities, that couldn't be conceived without nostalgia, for it had had its beauty and its poetry: the cult of reason, love of freedom, faith in justice... The parliamentary system, which was to say the political predominance of assemblies of delegates elected by the people, of intermediaries non governing and irresponsible, born, for specific reasons, in England, spread in Europe during the primacy of the rationalistic philosophy and of idealism […] had absolved its purpose; what was to come next? No one could say. The Giolitti system had been only a moment of the great evolution, that would result in the new political regime of tomorrow. Rocco's “new state” wasn't one where the masses took active part to the political life of the nation; rather a state that solved the problem of masses by lifting and compelling them into the institutions of the state – the only possible rise from their natural condition of disperse individualism. By the end of 1920 according to Rocco, this dissolution was dramatic and the body of the state was day by day dissolving in a plethora of minor aggregations, parties, associations, leagues, unions. But those individuals, amorphous masses, despite dominating the political life of the time, were nothing unless parts, organs of the state body. Organization of society was the quid of the State. Rocco stressed the organizing role of the executive power over the masses, and in fact the prominence of the executive in its own right, as the defining function of a modern state.

As we saw, the Legal reform was a moment of the reform of the state institutions; the creation of that "New State" that had been the defining myth of the Nationalists in the early XX century. Fascism, following in this the nationalist elaboration, didn't see the State as the product of the will of the people, or the community, or any sort of agreement, nor as an instrument for the elite. Building the Fascist State was not step one in a process but the end goal. As Giuseppe Bottai explained in 1930, within the State one saw the realization of the highest moral values of their life and thus moved beyond everything within them that was partial: personal gain, interest, life itself if needed. Within the State one could see displayed in act the highest spiritual values: continuity beyond [the limitations of] time, moral greatness, enlightening mission for oneself and for others: therefore [the fascists] said … that the State was the ideal synthesis of material and immaterial values of one's ancestry and was the concrete form of the past and present generations.

Thus the State, the Fascist State that is, was everything: the organism that served as summary and collection of all individualities. Nothing meaningful existed outside of Fascism: nothing outside of the Regime, everything within the Regime ad for the Regime; discussion and critical thinking could exist only within the Regime, within boundaries, within Fascism, not against Fascism, within the Party, not against the Party, within the Fascist State, not against the Fascist State. As such, the State was the end in itself.

From the point of view of the law system, the Fascist State was a juridical state based on internal law. Without much detail, the doctrine of juridical state was a (relevant, especially in the German area, and of course largely championed in Italy by A. Rocco) alternative to that of natural right, that posited that individual rights came from the state, which is to say that every right was a concession of the state to individuals, made for the state's own interest, as it was interest of any organism that its organs functioned properly. The source of individual right was thus a deliberate self limitation of the state right. Or, in Rocco's own words, “individual freedom came not from a state of natural right, but from a self-imposed limitation of the State [right], which is to be a concession made by the State for its own [Rocco's italics] interest”. But Rocco extended this idea to a functional approach to the State, where individuals were “organs of the society's ends” and the “organized society” became the State.

As for internal law, it's better to start from its counterpart, which is the one we are now more familiar with – law that prescribe us things to do and not to do. Law that doesn't prescribe us what we must be or hold true or believe. External law punishes infractions but does not argue on the ethos of the punished. Internal law requires the individual to identify his personal values with the law, to accept the state values as the right values. Again with Bottai, the citizen […] was the member of a community within which they attained their whole existence … holding in their soul, at any moment, State as a moral value […] always subordinating themselves to national interest, either spontaneously or for the vigilant oversight of the political authority that […] affirmed itself.

Merging the two principles together you obtain the core concept of a totalitarian state – a grandiose construction, embodiment of the nation, empowered with the ability to determine at will who was a citizen and to strip any rights away from those who did not (or could not) participate of the State ethos.

Now, if you behead the totalitarian state by taking away its central inspiration - which is to say introducing a democratic constitution based more on a "natural right" view of the law - then you may argue that there is no harm in keeping around those laws which do not appear to require immediate alteration. You may also argue otherwise, which is the reason why this has remained a contentious issue for a long time.

 

I want to address another point though, concerning more in general this kind of question. And I'll do this in a second post for reasons of space.