Tainted law? The Italian Penal Code, fascism and democracy

Abstract

The current Italian Penal Code is the direct descendant of the 1930 Rocco Code. Originally a hybrid of authoritarian and liberal elements, but revised and reinterpreted in the post-war Republic, the Code was nevertheless introduced under the Fascists and has not been definitively reformed or renamed. Given such roots, this article argues that the Code’s legitimacy can be questioned by considering the significance of the Fascist past in terms of the Code’s symbolic, contextually narrative and memorial dimensions. On this basis the article develops a concept of tainted law in order to ground and direct analysis of law in relation to the anti-democratic past, arguing that critical engagement with the connections between law and the darker episodes of twentieth-century politico-legal history is vital to the construction and conservation of democratic legal systems today.