This proposed collection builds on the success of Fascism and Criminal Law: History, Theory,Continuity (Hart Bloomsbury, 2015). Based on the particular significance of criminal law in understanding the nature, exercise and representation of State power identified and discussed in that collection, this proposed collection intends to take the discussion further by focusing on the relationship between ideology and criminal law under Italian Fascism,German National Socialism, and other regimes that could be labelled as generically fascist or authoritarian. The collection is thus intended to provide wider and deeper reflection on the ideas, beliefs and political principles that shaped the criminal law of the systems in question,how those systems operated through courts and repressive practices, and how ideological factors influenced the substantive criminal law. The systems considered are explored both on their own terms and in some chapters through comparative analysis, in relation to similar systems and those apparently opposed to them. The collection is also intended to be more extensive than the previous volume, with almost twice the number of contributors,including as before leading experts in the field and a number of emerging scholars.Moreover, this collection will present chapters by common theme to foster comparative and critical reflection across systemic boundaries. The collection took root in a two-day workshop held at the Institute of Advanced Legal Studies in London on the 10th-11thSeptember 2015, entitled 'Anti-Democratic Ideology and Criminal Law under Fascist,National Socialist and Authoritarian Regimes'. The chapters will all be based on original research and, as with the previous collection, will also constitute an important and much needed English language resource providing access to work on legal systems that are currently under-represented in Anglo-American scholarship.
Author(s): Skinner, Stephen (ed.)
Edition: 1
Publisher: Hart Bloomsbury
Year: 2019
Language: English
Tags: Ideology; Fascist regimes; National Socialist regimes; Authoritarian regimes
Acknowledgements
List of Contributors
Introduction: Glancing in the Mirror at Ideology and Criminal Law Under Fascist, National Socialist and Authoritarian Regimes
Stephen Skinner
PART I
BELIEFS, FOUNDATIONS AND IDENTITIES
1.‘Also and Above All a Regime of Justice’. Criminal Law and the Aesthetics of Justice Under the Italian Fascist Regime: The Role of Architecture and the Visual Arts
Luigi Lacchè
Introduction
Primum reprimere
Criminal Justice Implementing the Political Ideology of the New Regime
Fiat iustitia pereat mundus?
Representing Justice: The Role of Architecture and the Visual Arts
Fiat iustitia ne pereat mundus! Some (Provisional) Conclusions
2.Criminal Law in Auschwitz: Positivism, Natural Law and the Career of SS Lawyer Konrad Morgen
David Fraser
Criminal Law in the Criminal State: Re-imagining the Jurisprudence of Nazi Law
History, Law and ‘Murder’ in the Camps: The Continuing Mythology of the Criminal State
Konrad Morgen, SS Judge, and the Law of Killing
Nazi Law, Natural Law, Positivism and the Jurisprudence of Konrad Morgen
Conclusion
3.Nazi Law as Non-law in Academic Discourse
Simon Lavis
Introduction: Non-law and the Third Reich
Constructing the Rupture Thesis: The Genesis of Nazi Law as Non-law
Reproducing the Rupture Thesis: The Persistence of the Non-law Paradigm
Conclusion
4.Nazi Criminal Justice in the Transnational Arena: The 1935 International Penal and Penitentiary Congress in Berlin
Richard F Wetzell
Introduction
Transnational Penal Reform Networks
Three Visions of Nazi Penal Reform
An International Congress in Nazi Berlin
Aftermath: International Criticism
Conclusion
5.Criminology and the Rise of Authoritarian Criminal Law, 1930s–1940s
Michele Pifferi
Introduction: The Historiographical Problem of Continuity or Rupture
Rhetoric and Discourses: The Many Voices of Criminology
The Divide Between Positivist Criminology and Totalitarian Penal Systems
The Constitutional Fallout of Criminology
Conclusion
6.Classifying Law as Criminal in Apartheid South Africa
Marika Giles Samson
Introduction
The Outset of Modern Apartheid: The Two Faces of Law
Criminal Law and the Authoritarian Crackdown
The International Crime of Apartheid
Conclusion
PART II
COURTS, LAWYERS AND REPRESSION
7.Coercion and Consensus: Using the Law to Change ‘the Moral Character of Italians’
Alessandra Bassani and Ambra Cantoni
Introduction
Economic Crimes
Common Crimes
Conclusion
8.The Judiciary and Political Power Under the Fascist Regime in Italy
Riccardo Cavallo
Judges and Fascism: An Open Question
The Judiciary and Political Power in Liberal Italy: An Outline
Aldo Oviglio’s Judicial Reform
The Architect of Fascist Justice: Alfredo Rocco
Dino Grandi’s Reform
Authoritative Voices from the Palace of Justice
In the Fascist Courtrooms
Conclusion
9.National Socialism and the Law in Norway Under German Occupation, 1940–1945
Hans Petter Graver
Introduction
Authoritarian ‘Rule of Law’
The Legal Ideology of the National Socialist Party
Statutory Measures of the Nazi Authorities
Consequences for the Judiciary
National Socialist Law in Action
The Measures Against the Jews
Conclusion
10.The Repression of Lawyers After the Spanish Civil War: The Case of Valencia
Pascual Marzal and Aniceto Masferrer
Introduction
The Military Punishment of the Defeated: Trials Against Republican Lawyers
The Economic Repression
The Professional Purge
Conclusion
Appendices
11.Yukitoki Takikawa (1891–1962) and Legal Autonomy in Interwar Japan
Hiromi Sasamoto-Collins
Criminal Law and Fascism: Unicity and the Decay of Legal Theory
The Takikawa Incident and the Attack on Dissent
Origins and Application of Takikawa’s Criminal Law Theory
Conclusion
PART III
DEVELOPMENT, EXPRESSION AND TENSIONS
12.Punishing the ‘Veterans of Crime’: Recidivism in Fascist Italy’s Rocco Code of 1930
Paul Garfinkel
Introduction
Common Recidivism: Definitions and Discipline
Dangerous Recidivism: Classification and Confinement
Conclusion
13.Anti-democratic Emotions: Crimes of Honour Before and Under the Fascist Regime
Emilia Musumeci
A Law Without Emotions?
Emotions Through the Eyes of Legal Scholars
Inside the Pre-unitarian Codes: The Dominance of ‘Irresistible Force’
During an Outburst of Anger or Intense Pain: The Zanardelli Code
The Indifference of Emotional and Passionate States: The Turning Point of the Rocco Code
Gendered Emotions
Reinventing Honour
Conclusion
14.Criminal Law and the Use of Force: Ideology and State Power in Fascist Italy and England in the Interwar Period
Stephen Skinner
Introduction
Article 53 of the 1930 Penal Code
The Use of Force in English Law
State Power and the Use of Force in Interwar Italy and England
Conclusion
15.The Restless National Security Acts: The Absence of Crimes Against National Security in the 1940 Brazilian Penal Code
Diego Nunes and Ricardo Sontag
Introduction
The Exclusion of Political Offences: Contested Reasons
Double Levels of Legality and Political Crimes (1930–36)
Double Levels of Legality and Political Crimes (1936–40)
Conclusion
16.The Law of Blood: Totalitarianism, Criminal Law and the Body Politic of Second World War Romania
Cosmin Cercel
Introduction
A Legislation of Crisis: Law, State, History
From Authoritarianism to Totalitarianism: The ‘New’ Constitution
Protecting the Nation: Blood, Outlaws and the Body Politic
Dictatorial Law and Order: Nationalism, Subjection and Fascist Ideology
Conclusion
Conclusion: Investigating Ideology and Criminal Law in Legal History
Stephen Skinner
Index
