Judicial 'Truth' and Historical 'Truth': The Case of the Ardeatine Caves Massacre

Abstract

This paper looks at the relationship between “judicial truth” and “historical truth” from a legal realist perspective. It starts from analysis of a specific case, which is used to highlight the problems arising from the “judicialization” of contemporary history. The case is taken from the Italian post-war experience and consists of a complicated set of controversies which all ensued from the same chain of events: the partisan attack on via Rasella and the Nazi massacre of the Ardeatine Caves (Rome, March 23, 1944). The judgments rendered in these cases are particularly interesting, not only because they extend over a long period of time and span the entire legal system (involving criminal and civil trials), but also because they delineate various judicial “truths” which interact with the interpretation of the same events given by historians. The paper shows how these judicial “truths” were created, how much they varied, and what is their relationship with the projects of identity-building politics. Finally, starting from the analysis of defamation cases against historians, the authors argue that courts should exercise self-restraint in reviewing the results of historical researches and should not be considered as a forum of last resort for the resolution of academic controversies.