Was there a fascist revolution? The function of penal law in fascist Italy and in Nazi Germany

Abstract

Did the fascist seizure of power cause a revolutionary change in the administration of justice in Italy? Did the fascist dictatorship transform the judicial institutions it inherited from liberal Italy? During the early phase of seizure of power (1923–1926), the fascist regime deployed existing instruments to influence judges and prosecutors by means of Ministerial instructions, threats of disciplinary measures or denial of career advancement. The first major innovation came with the creation of a Special Tribunal for Crimes Against the State in 1926, to punish anti-fascist activities and opinions. Although there is still a great deal of research to be done on the working of the ordinary courts, there is considerable evidence that both the courts and the magistrates were subject to an effective process of ‘fascistization’ and recent studies illustrate how the ordinary administration of justice provided an effective support mechanism for the more overt apparatus of repression carried out by the police, the fascist militia and, in the case of the occupied or annexed territories, the army. Although there were many striking similarities with Nazi policies, especially when it came to the working of the Special Courts, the fascist dictatorship was always less radical than its German equivalent and the differences became increasingly evident after 1939.