Ideology and Criminal Law under Fascist, National Socialist and Authoritarian Regimes

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. 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 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 inunderstanding the nature, exercise and representation of State power identified anddiscussed in that collection, this proposed collection intends to take the discussion further byfocusing on the relationship between ideology and criminal law under Italian Fascism, German National Socialism, and other regimes that could be labelled as generically fascist orauthoritarian. The collection is thus intended to provide wider and deeper reflection on theideas, 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 ideologicalfactors influenced the substantive criminal law. The systems considered are explored bothon their own terms and in some chapters through comparative analysis, in relation to similarsystems and those apparently opposed to them. The collection is also intended to be moreextensive 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 andcritical reflection across systemic boundaries. The collection took root in a two-dayworkshop 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 originalresearch and, as with the previous collection, will also constitute an important and muchneeded English language resource providing access to work on legal systems that arecurrently under-represented in Anglo-American scholar "With populist, nationalist and repressive governments on the rise around the world, questioning the impact of politics on the nature and role of law and the state is a pressing concern. If we are to understand the effects of extreme ideologies on the state{u2019}s legal dimensions and powers {u2013} especially the power to punish and to determine the boundaries of permissible conduct through criminal law {u2013} it is essential to consider the lessons of history. This timely collection explores how political ideas and beliefs influenced the nature, content and application of criminal law and justice under Fascism, National Socialism, and other authoritarian regimes in the twentieth century. Bringing together expert legal historians from four continents, the collection{u2019}s 16 chapters examine aspects of criminal law and related jurisprudential and criminological questions in the context of Fascist Italy, Nazi Germany, Nazi-occupied Norway, apartheid South Africa, Francoist Spain, and the authoritarian regimes of Brazil, Romania and Japan. Based on original archival, doctrinal and theoretical research, the collection offers new critical perspectives on issues of systemic identity, self-perception and the foundational role of criminal law; processes of state repression and the activities of criminal courts and lawyers; and ideological aspects of, and tensions in, substantive criminal law" "L'avant page de titre indique : "With populist, nationalist, and repressive regimes increasing around the world, questioning the impact of politics on the state and the role of law is a pressing concern. If we are to understand the effects of extreme ideologies on the state's legal dimensions and powers--especially the power to punish and to determine the boundaries of permissible conduct through criminal law--it is essential to consider the lessons of history. This timely collection explores how political ideas and beliefs influenced the nature, content, and application of criminal law and justice under Fascism, National Socialism, and other authoritarian regimes in the twentieth century. Bringing together expert legal historians from four continents, the collection's sixteen chapters examine aspects of criminal law and related jurisprudential and criminological questions in the context of Fascist Italy, Nazi Germany, Nazi-occupied Norway, apartheid South Africa, Francoist Spain, and the authoritarian regimes of Brazil, Romania and Japan. Based on original archival, doctrinal and theoretical research, the collection offers new critical perspectives on issues of systemic identity and the foundational role of criminal law; processes of state repression and the activities of criminal courts and lawyers; and ideological aspects of, and tensions in, substantive criminal law.""--Jaquette "With populist, nationalist, and repressive regimes increasing around the world, questioning the impact of politics on the state and the role of law is a pressing concern. If we are to understand the effects of extreme ideologies on the state's legal dimensions and powers--especially the power to punish and to determine the boundaries of permissible conduct through criminal law--it is essential to consider the lessons of history. This timely collection explores how political ideas and beliefs influenced the nature, content, and application of criminal law and justice under Fascism, National Socialism, and other authoritarian regimes in the twentieth century. Bringing together expert legal historians from four continents, the collection's sixteen chapters examine aspects of criminal law and related jurisprudential and criminological questions in the context of Fascist Italy, Nazi Germany, Nazi-occupied Norway, apartheid South Africa, Francoist Spain, and the authoritarian regimes of Brazil, Romania and Japan. Based on original archival, doctrinal and theoretical research, the collection offers new critical perspectives on issues of systemic identity and the foundational role of criminal law; processes of state repression and the activities of criminal courts and lawyers; and ideological aspects of, and tensions in, substantive criminal law"-- Provided by publisher