Race and Empire: The Legitimation of Italian Colonialism in Juridical Thought
Author(s): Olindo De Napoli
Source: The Journal of Modern History, Vol. 85, No. 4, New Directions in Legal and
Constitutional History (December 2013), pp. 801-832
Published by: The University of Chicago Press
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Race and Empire: The Legitimation of Italian
Colonialism in Juridical Thought*
Olindo De Napoli
Università degli Studi di Napoli Federico II
Problems of Methodology and Definition
Many scholars would agree that, however it is structured, colonial domination
contains within itself a racist principle, and that as a result—to remain within the
juridical realm—every differentiation made between citizens and subjects is inherently racist. According to Giorgio Rochat, one of the pioneers in the study of
the phenomenon, Italian colonialism was “saturated with racism and abuse of
power, which are preliminary conditions for all colonial conquests, because the
very idea of wanting to dispose as one wishes of the fate of a people that is militarily weaker is profoundly racist and oppressive.”1
This general affirmation raises a number of questions. First of all, we need to
ask whether the existence of racism is something that scholars can discern only
a posteriori, on the basis of canons that are not always easily discernible,2 or
whether it was in some manner noticed or theorized at the time in question. In
other words, if it is true that colonialism is always inherently racist, we need to
ask ourselves whether it represents itself as racist and whether the discourse that
legitimates it is founded on race.3
*Translated for The Journal of Modern History by Lydia G. Cochrane. I am grateful
to Elena Bacchin for having encouraged me and for following the redaction and revision
of this essay with intelligent observations.
1
Giorgio Rochat, Il colonialismo italiano ðTurin, 1973Þ, 222.
2
It seems to me that often studies of racism encounter a difficulty of definition right
from the start and that the problem is pressing in the case of comparative studies. See, for
example, Robert Ross, “Reflections on a Theme,” in Racism and Colonialism: Essays on
Ideology and Social Structure, ed. Robert Ross ðThe Hague, 1982Þ, in which the author
proposes to exclude homophobia from the category of racism, given that homosexuality
is not genetically passed on to one’s descendants. In a direction quite contrary to the
superposition of concepts of racism and sexism, see Anna Rossi-Doria, “Antisemitismo e
antifemminismo nella cultura giuridica,” in Nel nome della razza: Il razzismo nella storia
d’Italia 1870–1945, ed. Alberto Burgio ðBologna, 1999Þ, 455.
3
In connection with problems of self-representation and rhetoric in Fascist juridical
culture, see Aldo Mazzacane, “La cultura giuridica del fascismo: Una questione aperta,”
in Diritto economia e istituzioni nell’Italia fascista, ed. Aldo Mazzacane ðBaden-Baden,
2002Þ.
The Journal of Modern History 85 (December 2013): 801– 832
© 2013 by The University of Chicago. 0022-2801/2013/8504-0003$10.00
All rights reserved.
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De Napoli
That question is even more to the point if we consider that for a long time racist and nonracist were quite normal divisions in scholarly debate. It was only
after World War II that the term “racist” was so clearly stigmatizing that almost no one with a racist mind-set presented himself as such. Jean-Paul Sartre,
for example, stated that antisemitism before the Second World War was categorized as being of the order of opinions, whereas it now belongs within the order
of crime.4 In an investigation of a time in which it was not inherently shameful
to declare oneself a “racist” or to expound on the biological and psychic differences between the various races—even to do so explicitly in terms of superiority
and inferiority—the question of whether the colonialist movement and the colonialist sensibility represented themselves as racist seems unavoidable.5
Once the presence of a declared racist option is verified, one needs to ask how
that option was expressed in the period under consideration, beyond the nominalism that is inevitable in all categorizations: that is, we need to ask what types
of political and juridical mechanisms were activated. Not all racisms are equal:
there can be a racism that does not permit direct contacts with those who are
“different”—the “subject” population in the present case—but there can also be a
racism within a context of continual exchanges and mingling.6 From a theoretical point of view, in some cases racism can conform to an evolutionist
paradigm, relying on the idea that it is the duty of the superior races to raise
the inferior races to their own state of civilization,7 but in others it can reflect
a biological determinism that holds differences to be naturally insuperable
and that dictates that the betterment of the inferior race is impossible, if not
politically erroneous. Or there can be a veiled prejudice of “condescension on
the basis of race” that can be defined as “racialism.” These distinctions are
frequent in the human sciences.8 Different types of racism can have common
4
Jean-Paul Sartre, Réflexions sur la question juive ðParis, 1947Þ, in English translation by George J. Becker as Anti-Semite and Jew ðNew York, 1948; distribution Pantheon, 1995Þ. On the shift from “scientific racism” to the new, contemporary forms of
racism, see the summary in Michel Wieviorka, Le racisme, une introduction ðParis,
1998Þ, esp. chap. 1.
5
A similar historiographical problem regarding the use of the category “totalitarian”
is posed in Pietro Costa, “Lo ‘stato totalitario’: Un campo semantico nella giuspubblicistica del fascismo,” Quaderni fiorentini per la storia del pensiero giuridico moderno 28 ð1999Þ: 61–174, esp. 63, 64.
6
Barbara Sòrgoni, Parole e corpi: Antropologia, discorso giuridico e politiche sessuali
interrazziali nella colonia Eritrea: 1890–1941 ðNaples, 1998Þ, 255–56. See also Ann
Laura Stoler, Carnal Knowledge and Imperial Power: Race and Intimacy in Colonial Rule
ðBerkeley, 2002Þ.
7
See Claude Lévi-Strauss, Race et histoire ðParis, 1952Þ, in English translation as Race
and History ðParis, 1952Þ.
8
See, for example, the entries “Racialism,” in Andrew M. Colman, A Dictionary of
Psychology ðOxford, 2006Þ, 612; “Racialism,” in A Dictionary of Sociology, ed. John
Scott and Gordon Marshall ðOxford, 2005Þ; “Racism,” in Blackwell Dictionary of Po-
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803
features, however. According to Pierre Bourdieu, the nucleus of all types of
racism is the “essentialist” logic that consists in objectivizing, through language, the diversities of various groups; and precisely in order to escape that
kind of logic, Bourdieu proposes the notion of social field as the real basis for
relations.9 Analyses that attempt to find an analytical unity in the phenomenon do not omit investigation of the diversity of forms and contents, at times
concluding that a variety of types of racism can easily coexist in a given society:
racists do not disdain syncretism.10 In contrast to the various proposed analyses
of the different mechanisms of racism, a Marxist school influential in Italian
historiography has theorized the reductio ad unum of the phenomena classifiable under the term “racism.” Unlike those who seek a unitary definition of the
phenomenon in order to study its concrete historical manifestations, the Italian
school seems also to accentuate the unitary nature of the manifestation and the
causes of racism ðand sexismÞ, which it invariably discerns in Marxist terms of
class conflict and capitalistic accumulation.11
What I propose here is a concrete investigation of the various juridical and
political mechanisms of Italian racism. I intend to remain within a juridicalpolitical discourse, without venturing into the social history of the phenomenon—which, where Italy is concerned, has for a number of years begun to
attract the attention of scholars, for which I refer readers to Nicola Labanca’s
excellent synthesis.12
The study of juridical thought between the nineteenth and twentieth centuries
is particularly useful for a more general comprehension of Italian culture. As
has been observed, the modern state is a product of the jurists.13 In Italy the
jurist class made up the foundations of the new unified state,14 and juridical
litical Science, ed. Frank W. Bealey ðOxford and Malden, MA, 1999Þ. Pierre Bourdieu has
pointed out that the current use of the term “ethnicity,” a term steeped in “substantialist”
logic, clearly conveys the traditional concept of race: Pierre Bourdieu, Raisons pratiques:
Sur la théorie de l’action ðParis, 1994Þ, in English translation as Practical Reason: On the
Theory of Action ðStanford, CA, 1998Þ.
9
Pierre Bourdieu, Méditations pascaliennes ðParis, 1997Þ, 87, in English translation
as Pascalian Meditations ðStanford, CA, 2000Þ; Bourdieu, Raisons pratiques; Ragioni
pratiche ðBologna, 1995Þ, 7ff. and 45ff.
10
Michel Wieviorka, Le racisme: Une introduction, in Italian translation as Il razzismo ðRome and Bari, 2000Þ, 34 –36.
11
For the theory of the unitary nature of the racist phenomenon, see Alberto Burgio,
“Per la storia del razzismo italiano,” in Nel nome della razza, ed. Burgio, 19–29. Among
those who express perplexity at the comprehensive use of the category, see George M.
Fredrickson, Racism: A Short History ðPrinceton, NJ, 2002Þ.
12
Nicola Labanca, Oltremare: Storia dell’espansione coloniale italiana ðBologna,
2002Þ, 369ff.
13
Ernst Forsthoff, Rechtsstaat im Wandel ðStuttgart, 1964Þ, 77.
14
From the liberal period on, the relative majority of members of parliament were
men of the law, a situation that continued in the Fascist era: see Fulvio Cammarano and
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reflection constantly accompanied the political choices that were made, giving
them a scholarly grounding. That characteristic derived in turn from the paradigm of juridical studies themselves, which, based on Pandectistics,15 were considered “science,”16 in the root sense of the term, and, as such, were believed
to be “neutral.”17 Sociology and humanistic culture in general have begun to
reflect—with Michel Foucault and Pierre Bourdieu at the forefront of this
trend—on the “powerful effects” of a scientific discourse that sets up a hierarchy among forms of knowledge, on the role of “scientific” language in the
“struggle for classification,” and in particular on the performative nature of that
language.18 In the case of Italian colonialism, as we shall see, juridical culture
played a particularly fundamental role in this connection.
With these premises in mind, in the pages that follow I shall attempt to provide an overall view of Italian colonialism in a comparative perspective, seeking to suggest some elements in a history that does not reduce racism to a unified and unvarying phenomenon, but rather attempts to take into consideration,
in a diachronic perspective, elements of both continuity and fracture.
“Thought Shall Win Africa”: Juridical Discourse on Race
at the Origin of Italian Colonialism
The “race” problem was posed explicitly from the very beginning of Italian colonization during the formative years of the postunification state. In political debate, demographic discourse about a race that was expanding and needed new
space obscured all concrete discussion of the country’s problems, for which new
Maria S. Piretti, “I professionisti in Parlamento ð1861–1958Þ,” in Storia d’Italia ðTurin,
1996Þ, vol. 10, I professionisti, ed. Maria Malatesta, 523–89, esp. 553, 554. See also
Francesca Tacchi, Gli avvocati italiani dall’Unità alla Repubblica ðBologna, 2002Þ.
15
Pandectistics was a trend in nineteenth-century juridical culture that originated in
Germany and spread throughout Europe; it renewed the study of law through a return to
the texts of Justinian’s Corpus Juris Civilis, particularly the book of Pandectae. See the
critical synthesis by Aldo Mazzacane, “Pandettistica,” in Enciclopedia del diritto ðMilan,
1981Þ, vol. 31.
16
On the theme of scienza, which is fundamental for framing the entire problem of the
history of law in the construction of the Italian state in the ottocento, see Aldo Mazzacane,
“Scienza e nazione: Le origini del diritto italiano nella storiografia giuridica di fine ottocento,” in La cultura storica italiana tra otto e novecento ðNaples, 1987Þ, 115–32.
17
See Luigi Ferrajoli, La cultura giuridica nell’Italia del novecento ðRome and Bari,
1999Þ, 35–36.
18
See Michel Foucault, Il faut défendre la société: Cours au Collège de France ð1975–
1976Þ ðParis, 1976Þ, in English translation as “Society Must Be Defended”: Lectures at the
Collège de France, 1975–76, ed. Mauro Bertani and Alessandro Fontana, trans. David
Macey ðNew York, 2003Þ, in Italian translation as “Bisogna difendere la società” ðMilan,
1998Þ; Pierre Bourdieu, Ce que parler veut dire: L’économie des échanges linguistiques
ðParis, 1982Þ, in English translation as Language and Symbolic Power ðCambridge, 2008Þ,
in Italian translation as La parola e il potere: Economia degli scambi linguistici ðNaples,
1988Þ, 121–31.
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805
African colonies did not represent a solution.19 The rhetoric of publicity used a
sort of “social-imperialist harangue” ðas it was perspicaciously definedÞ to link
the problems of Italian emigration with the need for colonies to be populated.20
A nationalism that was positivist, imperialist, and in some sense “popular” was
a “directional axis of bourgeois culture” in Italy.21 But how to legitimate the
colonial enterprise from a juridical point of view?
It was Pasquale Stanislao Mancini, “one of the leading ideologists of the national movements,”22 who first described the connection between colonialism
and racism in strictly juridical terms. A lawyer and a politician of the Left, as a
jurist Mancini was considered from the mid-ottocento to be the founder of the
modern doctrine of the right of nations,23 “the recognized foundation of a new
European public law.”24 He had the merit of clothing the concept of nation ðwhich
had been indefinite and discussed only on the historical-political levelÞ in a coherent juridical garb by granting the nation “the monad of international law.”25
Recent studies have thrown light on the inexorability of this concept on the European level in the late nineteenth-century elaboration of international law.26
See Romain Rainero, L’anticolonialismo italiano da Assab ad Adua ð1869–1896Þ
ðMilan, 1971Þ, 183.
20
“The idea of somehow creating new decompression valves by means of the acquisition of a colonial empire, hence of protecting social order from the wave of underoccupied proletarians, met with a certain success and a vast popularity. This socialimperialist harangue obviously also constituted a moral alibi in connection with a broad
policy of colonial acquisition”: Wolfgang J. Mommsen, “Società e politica nell’età
liberale: Europa 1870–1890,” in La trasformazione politica nell’Europa liberale, 1870–
1890, ed. Paolo Pombeni ðBologna, 1986Þ, 32.
21
Silvio Lanaro, Nazione e lavoro: Saggio sulla cultura borghese in Italia 1870–1925
ðVenice, 1979Þ, 85.
22
Sergio Romano, “L’ideologia del colonialismo italiano,” in Fonti e problemi della
politica coloniale italiana: Atti del convegno Taormina-Messina, 23–29 ottobre 1989,
2 vols. ðRome, 1996Þ, 1:22.
23
Pasquale S. Mancini, Della nazionalità come fondamento del diritto delle genti:
Prelezione al corso di diritto internazionale e marittimo pronunziato nella R. Università
di Torino dal professore Pasquale Stanislao Mancini nel di 22 gennaio 1851 ðTurin,
1851Þ, later reprinted in Pasquale S. Mancini, Diritto internazionale: Prelezioni con un
saggio sul Machiavelli ðNaples, 1873Þ.
24
Romano, “L’ideologia del colonialismo italiano,” 22. See also the observations of
the jurist Francesco Ruffini, who, during World War I, thinking of the postwar reorganization, saw in Mancini’s juridical doctrine of nationality “the only article of scientific exportation that our literature of public law has produced during the course of
the ottocento”: Francesco Ruffini, “Nel primo centenario della nascita di Pasquale
Stanislao Mancini,” Nuova Antologia ðMarch 16, 1917Þ: xi, quoted in “Pasquale Stanislao Mancini,” in Dizionario biografico italiano, henceforth abbreviated as DBI.
25
See Pietro Costa, Civitas: Storia della cittadinanza in Europa, 4 vols. ðRome and
Bari, 2001Þ, vol. 3, La civiltà liberale, 211–13.
26
See Luigi Nuzzo, “Disordine politico e ordine giuridico: Iniziative e utopie del
diritto internazionale di fine ottocento,” Materiali per una storia della cultura giuridica
2 ð2011Þ: 319–37.
19
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In his doctrine of nationality Mancini attributed great importance to race as
an “expression of an identity of origin and of blood” and as a genuinely constitutive element of the nation. From this point of view, he could even state
that it is by membership in a race that “the Nation most resembles the Family.”27
In the culture of the age of the Risorgimento and the late nineteenth century,
the term “nation” bore strong connotations of the idea of a community of descendants.28 Mancini’s metaphor of the family confirms that reading. Racial
unity was a substratum “of physical and moral qualities that one has in common
with one’s own brothers”; even more, it was “the most tenacious link among individuals of the same extraction in comparison to those who are extraneous to
it.”29 To be sure, as has been observed, the racial element counted in Mancini’s
idea of nation, but within a vision where “the consciousness of nationality,” a
sentimental value, was predominant.30
Concerning the colonial enterprise, in the 1880s Mancini stated that it was
justified morally by the need to bring civilization to the African populations and
to join with the generous works of the other European nations, but he also considered it to be justified juridically. Speaking of colonial domination, he stated:
“That relationship is just as legitimate in international society as the relationship
that is called tutelage is legitimate in private law: tutelage of those who are incapacitated by age, or by weakness of mind; similarly, it is not incompatible with
the principle of the independence and the equality of all human creatures.”31
This argument proposes a parallel between institutions of private law and
institutions of public law, and it intimates that the African populations should
be considered inferior in that they were less advanced in evolution or even
mentally incapacitated. The image of colonized peoples as childish was fairly
widely diffused in fin de siècle European culture.32 The framing paradigm was
that of Darwinian evolution, and the rhetoric was that of the burden:33 colonialism was a weight necessarily borne by the civilized peoples.
After long service in Parliament, working above all in the fields of penal law
and reform of the law codes, Mancini served twice as Minister of Foreign Affairs in the Depretis government. This led, in 1882, to his inauguration of Italy’s
27
Mancini, Della nazionalità come fondamento del diritto delle genti.
Alberto M. Banti has devoted a number of studies to the racial aspect of the
nineteenth-century concept of nation: see Alberto Mario Banti, La nazione del risorgimento: Parentela, santità e onore alle origini dell’Italia unita ðTurin, 2000Þ; and
Banti, “La nazione come comunità di discendenza: Aspetti del paradigma romantico,”
Parolechiave 25 ð2001Þ: 115–41.
29
See Atti del Parlamento italiano, 1887, Discussioni, 4:4295.
30
Costa, Civitas, vol. 3, La civiltà liberale, 211–13.
31
Mancini, Della nazionalità come fondamento del diritto delle genti, 23.
32
See Lévi-Strauss, Race and History.
33
Obviously, I am referring to the later and famous poem of Rudyard Kipling, “The
White Man’s Burden” ð1899Þ.
28
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colonial foreign policies.34 To those who accused him of betraying his belief
in the right of nations, Mancini responded that in Africa there were no nationalities and that the peoples of Europe had a mission of peaceful civilization.35
A later speech in Parliament reflected a similar discourse: “How can we close
our eyes to this generous competition, which is now manifested among all the
great nations of Europe, to take part in a sort of common and joint enterprise
of world-wide civilizing; in a high educational mission of such a large part of
the human species that lives in the vast African continent?”36 It was Italy’s duty
to join the other European nations in a “highly worthy crusade of civilization
against barbarity.”37
In that same period, Third Republic France was at the peak of its celebration
of its mission civilisatrice, and according to Alice Conklin the very concept of
civilization was particularly French.38 Thus Mancini must certainly have had in
mind the imperial policies of lands north of the Alps and, in particular, their
imperial doctrine regarding African subject peoples, who must be elevated both
morally and materially.
The thought of this great Italian jurist is useful for an understanding of some
aspects of the culture of an entire epoch, as his theory used a logical and linear
line of argumentation to bind together concepts such as “race” and “nation” that
were open to different interpretations and were potentially undefined juridically. Making the nation the subject of international law and giving it a coherent juridical expression within a general theorization of the relevant material
represented a genuine qualitative advance, however.
Giovanni Bovio, an intellectual and a jurist from Puglia, a philosopher of a
democratic and enlightenment formation, a man involved in Freemasonry and
in liberal causes, and the ideologist of the “evolutionist” Republicans39 and the
extreme Left, seemed to stand on the other side in the debate concerning the
legitimacy of the Italian colonial enterprise. Bovio arrived at the University of
Naples in 1872, where he became “one of the most beloved teachers.”40 Concerning his involvement in the debate on Italian colonialism, which was lively
even in Radical circles,41 one brief text, as significant as it is little known, stands
For biographical details, see “Pasquale Stanislao Mancini” in DBI.
See Roberto Battaglia, La prima guerra d’Africa ðTurin, 1958Þ, 147.
36
Camera dei Deputati, Atti Parlamentari, Legislatura XV, Discussioni, tornata del
27 gennaio 1885.
37
Ibid., Legislatura XVI, Discussioni, tornata del 30 giugno 1887.
38
Alice L. Conklin, A Mission to Civilize: The Republican Idea of Empire in France
and West Africa, 1895–1930 ðStanford, CA, 1997Þ, 2–3.
39
A group that opposed the intransigents and relied much on the Rivista repubblicana
of Alberto Mario and Arcangelo Ghisleri.
40
See Alfonso Scirocco, “Giovanni Bovio,” in DBI.
41
Raffaele Colapietra, “Correnti anticolonialistiche nel primo triennio crispino
ð1887–1890Þ: L’atteggiamaento di Giovanni Bovio,” Belfagor 9 ð1954Þ: 560–74.
34
35
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out: Bovio’s 1887 inaugural lecture at the Regia Università di Napoli, “Il diritto
pubblico e le razze umane.”42 According to Bovio, the better races transform
or eliminate the worse ones, which, without the former, would never have
a chance to “elevate themselves to science and enter into the atmosphere of
universal history.” Civilization has the right to expand not only with science
but also with violence, because there is no recognizable “right to barbarity.”43
While it is true that he proposed a vision of history in which the struggle between races was normal, Bovio saw the goal of that process as the transformation of those inferior races. The violence of the superior races over the inferior
ones, in fact, was one means for the betterment of peoples.44 Social Darwinism
is evident in the ideas that history shows that “the law of selection takes place
among individuals and among races, the best of which prevails”45 and that the
Caucasian type prevails everywhere just as “thought prevails.”46
Bovio considered the inferiority of certain races to be a scientific datum, to
the point that he presented non-Caucasian races as prehistoric and even extrahistoric types. Such types were not able to produce ius humanum, as they
were not thinking beings; and “those who think are free; those who do not,
serve.”47 Assertions of the sort were typical in a period in which the existence
of local civilizations was denied, especially in Africa, placing the populations
to be dominated outside of history. Bovio’s thought was thus firmly located
within an ethnocentric climate in which, to borrow a phrase from Claude LéviStrauss, people preferred “to reject out of hand the cultural institutions—ethical, religious, social or aesthetic ½— which are furthest removed from those
with which we identify ourselves.”48
Bovio justified colonization as the bearer of thought, law, and civilization. In
anticipation of objections, however, he outlined the arguments that could be
42
See the quotation from Bovio given in Labanca, Oltremare, 58.
Giovanni Bovio, Il diritto pubblico e le razze umane ðNaples, 1887Þ, 7–8.
44
On Bovio’s philosophy of history, which was based on a mathematical determination of historical periods, see Giovanni Bovio, Corso di scienza del diritto ðNaples,
1877Þ. See also Scirocco, “Giovanni Bovio,” in DBI.
45
Bovio, Il diritto pubblico e le razze umane, 8. It was Romolo Prati who noted the
Darwinian nature of Bovio’s justification of Italian colonial aggression: see Romolo Prati,
“Darwin e Saati,” Cuore e critica ðMarch 1887Þ: 40ff., quoted in Rainero, L’anticolonialismo italiano, 171. On the ambiguity of the relationship between Darwinism and
racism, see George L. Mosse, Toward the Final Solution: A History of European Racism
ðNew York: Fertig, 1978; Harper & Row, 1980Þ, in Italian translation as Il razzismo in
Europa dalle origini all’olocausto ðMilan, 1992Þ, 80–82, where Mosse stresses that
Darwin was not personally racist and that his thought was “simplified” by racists.
46
Bovio, Il diritto pubblico e le razze umane, 9.
47
Ibid., 25.
48
Lévi-Strauss, Race and History, 12. See, in particular, his explanation of “false
evolution,” 14. On the Italian press of the time, see Michele Nani, Ai confini della
nazione: Stampa e razzismo nell’Italia di fine ottocento ðRome, 2006Þ, 49.
43
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opposed to his reasoning: a people that had just attained liberty from foreign
domination would not have the right “to offend the right of the other nations,
which are of men and not of beasts.” To this Bovio responds that “nation truly
resides where there is a State and where there is movement of thought.” He
cites an example, not by chance referring to Ethiopia, already at the time the
target of Italian expansionist aims: “The despotism of a Negus indicates master
and subjects, not State and nation. Or will you deny the rights of expanding
civilization to admit the right of anthropophagy and a common Venus?”49
Colonialism brought betterment to subjected peoples, according to one of the
topoi of colonial ideologies, which meant that the right to expansion bore connotations of paternalism. Ideas of the sort were similar to those expressed not
long after regarding the British Empire by Lord Cromer, who stressed that the
empire was for its subjects, and not the subjects for the empire.50 For Bovio,
from the juridical point of view colonialism was a mission for the expansion of
law against savage customs. In his opinion, in fact, there could be no “right to
barbarity,” according to an expression that he took the opportunity to use even
on the occasion of a parliamentary discussion of Assab.51 The total lack of law
in the black continent—that is, of the law as constructed through the long centuries of history in Western Europe52—and of the nation, the subject creator of
that law, was the foundation of the right to expansion of the “better race.” In the
final analysis, this was an argument that became juridical on the level of international law: for Bovio, in fact, there existed only a public law, “that of civilization that pours forth.” Outside of that there existed only “pretenses of law,”
which in concrete terms became iniquities, “iniquitates iuris.”53 Those pretenses
were derived from abstract egalitarian concepts. At this point the orator directly
addressed Africa: “And you, enormous Africa, black Africa, black within yourself and before civilization, even you will open up before the thought that presses
you and searches you, the thought that draws vigor from resistance and does not
retreat before the trial of those centuries that, succeeding one another, hid you
all the more from searchers.”54 His reasoning concludes on a poetic note: “Oh,
thought will win, will win over Africa, will fly over the desert, sit amidst the
unknown and examine it thoroughly, and will seem both formidable and merciful. Do not say that it will take revenge—ignoble word—say that it will win, that
49
Bovio, Il diritto pubblico e le razze umane, 9.
Robert L. Tignor, “Lord Cromer: Practitioner and Philosopher of Imperialism,”
Journal of British Studies 2 ð1963Þ: 142–59, esp. 145.
51
See Battaglia, La prima guerra d’Africa, 331.
52
For a deconstruction of the conception of the universality of the European historical
experience, see the now classic Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference ðPrinceton, NJ, 2000Þ.
53
Bovio, Il diritto pubblico e le razze umane, 12.
54
Ibid., 10.
50
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its victory is justice, is redemption, and that it will carry history to where there
is legend, the thinker to where there is the savage, the school to where there is
fetishism.”55
In the expansive impulse of thought, violence was an acceptable accident
because “when the effects are good, science justifies the causes and pardons the
shocks that produce sparks.” On the other hand, force should not be used as an
end in itself but should have as its purpose a project of civilization: “Force for
the sake of force is violence; force for civilization is reason.”56 The inferior
races had no right to political independence because they were not capable of
producing thought and law.
Regarding the problem of the use of violence, the scholar of international law
Enrico Catellani disagreed with these ideas, proposing instead a humanitarian
vision of colonialism that excluded violence in the name of the “right to life and
to property of every human being, in every corner of the earth.” However, even
Catellani was in favor of colonial expansion, because imperialism led to one
global civilization, and he agreed with Mancini and Bovio on the juridical premise that “the right of nationality is not for all.” Journals north of the Alps discussed the same topics of the legitimacy of the use of violence in the goal of
bringing civilization to lands in which only fanaticism and brigandage reigned.
Even if “spilled blood” proved to be necessary, the Revue des Deux Mondes
asserted, “who could say this was a poor use of force?”57
Africans without a Nation, Italians without a State
To return to Bovio: at the end of his inaugural address in Naples, after having
justified the Italian colonial enterprise in theory, he surprisingly declared himself against it. In Italy, in fact, the church, despite the recent achievement of
Italian unification, kept up constant interference in public affairs, to the point
that no one could claim that the process of the formation of the Italian state had
been completed. This made the task of exporting civilization still unthinkable.
Arguments of this sort fitted in with Bovio’s anticlerical intellectual history
when he took part in the “anti-council” of Naples in 1869. As a philosopher,
Bovio harshly criticized the impotence of the founders of the liberal state where
the church was concerned: the founders of the national state should “oppose to
that power our public law in all its grandeur and dignity.” But on the contrary,
“they hesitated,” and the result was a mutilation of internal law that produced
a return to being like “children before the ancient power of Rome.”58 We see
55
Ibid., 10–11.
Ibid., 8.
57
Conklin, A Mission to Civilize, 13. The Catellani quote earlier in the paragraph is
from Enrico Catellani, Le colonie e la Conferenza di Berlino (Turin, 1885), 40.
58
Bovio, Il diritto pubblico e le razze umane, 19.
56
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here a return to the theme of the child-people, a category under which Bovio,
unlike Mancini, inscribed Italians as well. Ancient Rome was both the model
and the point of comparison that served to disqualify contemporary political
conditions: “Superstrong Rome, because Rome of Law . . . that Rome was
distant from this one not only in time but also in soul and intellect; that one
was as if mistress of all parts of law, even of colonial law, a not small part of
Roman public law. . . . The colonizing people par excellence, the people that
first established the colonial science of law, was the juridical and political people—the Roman people.”59
Given the distance between the Italy of Bovio’s time and the Roman mind,
the colonizing mission of postunification Italy obviously faced an “obstacle not
yet surpassed.”60 Exporting civilization was in fact possible only “when a fully
achieved country is involved.”61 Similar arguments, founded on the distinction
between country and state and based on the theme of the right to expansion,
were widespread in Anglo-Saxon publicity regarding empire in the late nineteenth century. One example may be found in the theories of John R. Seeley,
according to whom colonialism is justified as the expansion of a state that is “the
Nation” and “not the Country.”62
In short, for Bovio colonialism was in itself juridically licit and even necessary, but it was not so for Italy, which still had to become a state. From the
theoretical viewpoint, however, colonialism was perfectly justified and the central point of the argument for it was clearly racist.
In his Neapolitan inaugural address, Bovio described a clearly sexualized image of Africa as an enormous void, one that thought, which “presses and delves
into,” was to fill and fecondate—an immense black space that must be opened
up to the domination of superior Europeans, represented metaphorically as
“thought.” That image clearly reflected a widely diffused sentiment encouraged
by the propaganda of the colonialist movement. A number of years later the
monthly L’Oltremare, which in 1927 had taken the place of the Rivista coloniale as the organ of the Fascist Colonial Institute,63 showed Africa on its cover
as an enormous unexplored void, interrupted here and there by signs of ancient
civilizations and by palm trees and ferocious and exotic animals. A fascination
for the “frontier” made the African colonies increasingly appealing for “mass
59
Ibid., 13–14.
Ibid., 20.
61
Ibid., 13.
62
John R. Seeley, The Expansion of England: Two Courses of Lectures ðLondon:
Macmillan, 1883; Chicago: University of Chicago Press, 1971Þ, 49.
63
On the Fascist Istituto Coloniale, see Alberto Aquarone, “Politica estera e organizzazione del consenso nell’età giolittiana: Il Congresso dell’Asmara e la fondazione
dell’Istituto coloniale italiano,” Storia contemporanea 1, 2, and 3 ð1977Þ: respectively,
57–119, 291–334, 549–70.
60
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consumption.” Moreover, the attraction to the exotic was not politically neutral:
it accompanied domination.64 Thus the image that Bovio used expressed a taste
for the exotic that lasted into the Fascist era.
There were jurists who supported the rights of nations and, at the same time,
supported colonialism; there were also intellectuals who saw the legitimation of
a policy of dominion as a problem but at the same time publicized the principle
of national self-determination. Mancini and Catellani justified Italian colonialism by arguing that the Africans have no nation; Bovio seemed to oppose colonialism by stating that the Italians have no state. When the two positions are
carefully analyzed, it is clear that their rhetorical strategies differed but were
much more juridical than they seem at first glance.
Mancini and Bovio have been presented as contradictory personalities.65 It
is true that, for example, Bovio was bitterly criticized in Republican circles.66
In the late nineteenth century, however, when the construction of the unified
state had been achieved, many liberal thinkers ðand even democrats and radicalsÞ declared themselves favorable to the colonial enterprise. We need to remember that an aversion for a hierarchized vision of the relations among peoples is, in the final analysis, a recent, twentieth-century acquisition springing
from a progressive view of culture. A historiographic debate that began some
years ago has focused on the dichotomy between the nationalism of the early
ottocento, which fought against oppression and for liberal constitutions, and
that of the end of the century, which turned toward aggressive and chauvinistic policies—or, to put it in Eric J. Hobsbawm’s terms, the dichotomy between
the German and the French national models.67 The cases discussed here show
that, according to the biographies of many prominent figures of the time, that
dichotomy was not perceived. To be sure, national patriotism was transformed
into racial pride, as Catellani noted,68 but this was felt to be a natural development. Moreover, with the achievement of unification, was not Italy moving toward becoming absorbed in the historic flux—in the “generous competition,”
as Mancini put it—of the great nations of Europe, all of which were imperialist?
The contradictory nature of Italian colonialism after the Risorgimento seems
in all ways similar to that of Republican France of the same period, beginning
with the consideration that for the imperialistic impulse founded on its mission
64
See Labanca, Oltremare, 155–57.
Romano, “L’ideologia del colonialismo italiano,” 21.
66
See Arcangelo Ghisleri, Le razze umane e il diritto della questione coloniale
ðBergamo, 1888Þ, an extract from the review Cuore e critica, and Battaglia, La prima
guerra d’Africa, 331–39.
67
See Federico Chabod, L’idea di nazione, ed. Armando Saitta and Ernesto Sestan
ðBari, 1961Þ; Eric J. Hobsbawm, Nations and Nationalism since 1780: Programme, Myth,
Reality ðCambridge, 1990Þ.
68
Enrico Catellani, “Gli imperialismi d’oggi e l’equilibrio politico del domani,”
Rivista coloniale 11 ð1906Þ: 350ff.
65
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813
civilisatrice, “the French managed to obscure the fundamental contradiction
between democracy and the forcible acquisition of an empire,” as Conklin argues.69 The question can be read differently, however: for the French, who
held their acquisitions regarding individual rights to be the expression of a universal ethics, it was completely natural to consider themselves “masters of the
earth” and guardians of “superior notions,” as Jules Ferry stated to Parliament
in the early 1880s.70 Regarding Tunisia, a French colony from 1881 on, the official doctrine that supported the legal structure of the protectorate stated that
the Bey was free precisely thanks to the French protectorate, which raises the
question of the type of liberty constructed by European liberalism and by international law throughout the centuries.71 For many in Italy as in France, democracy and imperialism were not felt to be contradictory terms. The distinction between countries ðor peoplesÞ and states, in an evolutionary framework,
was totally functional from that viewpoint. Moreover, even if in Great Britain
some liberals were opposed to imperialism, in many respects the contradiction
between imperialism and liberalism had been resolved: the “protean ideology”
of British imperialism occupied a permanent space in liberal ideology and discourse regarding the “imperialism of free trade,” even in its various interpretations.72 Even the unease of the liberals after the occupation of Egypt was resolved
within the liberal ideology with an appeal to the classic themes of progress and
a guarantee of foreign interests. For this reason, many English liberals saw the
1880s as a watershed moment.73
Recent works have stressed the general ambivalence of European liberalism
in its attitude toward rights and colonialism, an attitude that can also be explained in psychoanalytical terms.74 The European framework suggests not concentrating on judging contradictory individual figures or particular policies but
rather discerning a more general trend in European liberalism that originated
from some of its internal premises. This is the much more complex question of
“liberal racism.”
Liberal Racism: The Myth of Progress and Differentialist Practice
What law should pertain to natives? That question lay at the center of debate
among the experts on colonial law beginning in the late nineteenth century. The
Italian jurists refused the principle of one justice, which they considered an ex69
Conklin, A Mission to Civilize, 2.
Ibid., 13.
71
Nathaniel Berman, Passion and Ambivalence: Colonialism, Nationalism, and International Law ðLeiden and Boston, 2012Þ, 416–17.
72
John Darwin, The Empire Project: The Rise and Fall of the British World-System
ðCambridge, 2009Þ, 305–6.
73
Ibid., 104 –5. See also the classic John Roach, “Liberalism and the Victorian Intelligentsia,” Cambridge Historical Journal 13, no. 1 ð1957Þ: 58–81.
74
Berman, Passion and Ambivalence, 412ff.
70
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pression of the French Enlightenment.75 That orientation was based on a wellknown decision of the French Cour de Cassation of 1865 that had asserted, as
a principle, that legislation follows the flag: this was the criterion of the territorial nature of juridical norms according to which all individuals subject to
the same state power were subject to the same laws.76 In ideal terms, that system was a consequence of an explicitly assimilationist ideology: the true aim
of French colonial policy was to shape a hundred million citoyens.
Renzo Sertoli Salis explains how, precisely in reaction to Enlightenment egalitarianism, the Italian colonial juridical system sought inspiration in a different
and differentialist criterion based on the principle of “respect for indigenous
law, with the one reservation of colonial public order.”77 As he notes, “It was
precisely in the final years of the last century that a lively reaction occurred
against those methods—founded, as has been stated, on principles of the unity
of the nature of man—that tended to bend the entire globe under the same
political, administrative, and civil regime.”78
One model for the Italian doctrine was the Congrès International de Sociologie Coloniale held in Paris in 1900.79 Affirming the need for knowledge
of and respect for the various indigenous systems of law, that congress promoted a differentiation between the codes and jurisdictions intended for citizens and those intended for subject populations, in particular stressing the need
for “drawing up a Penal Code for the use of the indigenous population.”80
According to Sertoli Salis, the Paris congress signaled the decline of the assimilationist theory. Even Mariano D’Amelio, perhaps the most brilliant of
the jurists trained in the colonies, execrated the French example. Commenting
on a provision in the Eritrean Civil Code of 1909 stipulating that when a native
woman marries a citizen she acquires citizenship, but when widowed she returns to subject status, D’Amelio contended: “In this way Italy remains immune
to the error that France now laments regarding the assimilation of colonial
subjects as citizens, which reached the point of automatically creating in its
Renzo Sertoli Salis, La giustizia indigena nelle colonie ðPadua, 1933Þ, 3.
Luciano Martone, Giustizia coloniale: Modelli e prassi penale per i sudditi d’Africa
dell’età giolittiana al facismo ðNaples, 2002Þ, 6.
77
Sertoli Salis, La giustizia indigena nelle colonie, 5.
78
Ibid.
79
Although the first theorization of the concept of “assimilation” goes back to the time
of the French Revolution, a fundamental text is Arthur Girault, Principes de colonisation
et de legislation coloniale ðParis, 1895Þ. The 1900 Congrès was fundamental for the
elaboration of French policies, even though some protested that those who supported assimilation were unable to agree among themselves about what should be meant by the
term. On these questions, see Martin Deming Lewis, “One Hundred Million Frenchmen:
The ‘Assimilation’ Theory in French Colonial Policy,” Comparative Studies in Society
and History 2 ð1962Þ: 129–53.
80
Martone, Giustizia coloniale, 6.
75
76
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Race and Empire
815
colonies a new body of Frenchmen about whom subsequently ½France did not
seem satisfied.”81
Similarly, for the great jurist Santi Romano, one of the most influential men
of law in Italy in the early novecento, the impossibility of assimilation was very
clearly based on race. According to him, the need to distinguish between citizens and subjects was “almost indispensable whenever the indigenous people
are of a race different from the inhabitants of the metropolis,” and making that
distinction was in the interests of both the colonizing country and the indigenous population itself.82
The topic of racial diversity formed the core of differentialist arguments
and led to an evaluation of the “civilization gap” on which the legitimation of
domination and the separation of juridical space in the colonies were based.83
The colonial judge Ranieri Falcone spoke explicitly in his Disegno di codice
penale of the need for a “racial code” to safeguard “our ethnic and political supremacy.”84 Falcone held a law valid for all to be inconceivable because every
people—every race—had to have regulations that were born of its particular
historical experience and that were most appropriate for it. An insistence on
racial difference was the legitimating discourse in the organization of juridical matters in the colonies. For the jurists who commented on and sought to
direct Italian colonial policy, reasoning of the sort adopted assumed the paternalistic rhetoric of “respect of indigenous juridical traditions.”85 The actual
situation was quite different. One extreme sign of the contradiction between
the declaration of respect for indigenous juridical traditions and the actual effects of differentialism was the reintroduction of corporal punishment and death
sentences in the colonies—for natives alone, of course. This is what made it
possible, in a liberal age, to conceive of “a penal system with strongly racial
characteristics”86 in homage to the principles of the positive school of penal
81
Mariano D’Amelio, “Colonia Eritrea,” in Enciclopedia giuridica ðMilan, 1913Þ,
vol. 3, pt. 2, 1,057.
82
Santi Romano, Corso di diritto coloniale impartito nel R. Istituto di scienze sociali
C. Alfieri di Firenze ðRome, 1918Þ, 1:124 –25. See also Carlo Bersani, “Forme di appartenenza e diritto di cittadinanza nell’Italia contemporanea,” Le carte e la storia 1
ð2011Þ: 60–61.
83
Pietro Costa, “Il fardello della civilizzazione: Metamorfosi della sovranità nella
giuscolonialistica italiana,” Quaderni fiorentini 33–34 ð2004–2005Þ: 173.
84
Falcone, quoted in Martone, Giustizia coloniale, 24.
85
Luciano Martone was thus quite right when he stressed, quoting the jurist Ernesto
Cucinotta, that “the always declared and always violated respect of indigenous law
was . . . the constant rule of a system of racial separation, which was presented, however, ‘not as an expression of the law or power of the empire but rather as a faithful echo
of the needs and demands of the new road of progress and the civilizing mission of the
State’ ”: Martone, Giustizia coloniale, 24, note.
86
Ibid., 30.
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law.87 In 1910, one exponent of that school, Raffaele Garofalo, insisted on the
need for a penal code that would establish differentiated penalties because of
the racial differences that existed in the colonies: “It was really not possible
not to take into account the effect of a given penal threat on people who have
ideas, sensibilities, and traditions quite different from our own, so that one penalty or another, either in its nature or its severity, might turn out to be totally
inefficacious or else disproportionate or intolerable for the indigenous population.”88
According to Ferdinando Martini, the first civil governor of the colony of
Eritrea, the death penalty was the only punishment capable of deterring the gravest sorts of blood crimes. Obviously, the argument applied only to natives. Moreover, for the indigenous population imprisonment would have been more insupportable than capital punishment, which thus represented a lesser penalty.
In differentialist juridical discourse there was a full affirmation of the superiority of European law—that is, of the law of the colonizing nations—accompanied by an assertion of the “ethnicity” of that law, which made it inapplicable to the inferior African populations. This was an implicit renunciation
of the juridical civilizing mission of the Italian people, inspired by the myth
of Imperial Rome, that held the exportation of Roman law—that is, European
and continental civil law—as the first of civilizing works. That very rhetorical
construction had of course played a major role in the jurists’ justification of the
colonial enterprise.89
Differentialist juridical discourse ended up contradicting the idea of the juridical civilizing mission, however.90 It was claimed that Italy had a juridical
mission, but when the death penalty and corporal punishment were instituted
only for natives, it signaled the failure of that mission. Differentialism, imbued
as it was with European ethnic presuppositions, was the very opposite of the
idea of that mission as it had been elaborated in France. Renunciation of the
“juridical mission,” in my opinion, was one of the most important distortions91
of a colonial law that was characterized structurally by both a tendency to establish limits and unbridgeable distances and by the need to incorporate the
87
See Maria L. Sagù, “Sui tentativi di codificazione per la colonia Eritrea,” Clio 4
ð1986Þ: 601.
88
Raffaele Garofalo, “Il codice penale della colonia Eritrea,” Rivista coloniale, anno 4
ð1909Þ: 134.
89
See Guido Alpa, La cultura delle regole: Storia del diritto civile italiano ðRome
and Bari, 2000Þ, 266.
90
See Luciano Martone, Diritto d’oltremare: Legge e ordine per le colonie del Regno
d’Italia ðMilan, 2008Þ, 4 –5.
91
For general reflections on the distortion of European law in the colonies, see Nani,
Ai confini della nazione, 49.
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817
colonial subjects themselves, with whom the dominators shared a common juridical space that, consequently, had to be differentiated.92
The jurists could not avoid sensing a contradiction between the juridical civilizing mission and the differentialist choice. They sought some sort of mediation
between the two and, once again, they found it in the evolutionist paradigm.
Ranieri Falcone, speaking before the Colonial Congress of Asmara of 1905,
defended a dualistic choice. He argued that “the differentiation of the law . . .
will do much to attenuate the difficulties of the colonial legislator, whose duty it
is to take into account the variety of customs, religions, institutions, and traditions of the multiform indigenous people. The action of time, and then that of
the men whose duty it is to govern or to administer justice, will eventually remove all dualism between metropolitan law and indigenous law, thanks to the
unification of the laws.”93
It was precisely the elaboration of the five colonial codes—in which Falcone
participated—that hastened “Italy’s civilizing task.”94 What was needed, according to Falcone, was a “gradual process for the juridical betterment and the
education of an inferior human species.” Race played a role in evaluating that
inferiority, as did ethical and religious convictions and the varying levels of
intelligence of the peoples who made up the mosaic of the Eritrean population.
The judges Ranieri Falcone and William Caffarel stressed the need for a gradual evolution of juridical civilization, and they expressed hope that the Eritrean
colony would have a legislation of its own, “different, where necessary, from
that of the motherland.” They did not fail to note, however, the colonizers’ duty,
“with slow and gradual progress, to evolve indigenous awareness toward our
more complex and more elevated concepts of law.”95
The natives of the colonies occupied a position on the evolutionary scale—“a
long staircase with many steps”—that was inferior to that of Europeans, but no
one denied that natives were capable of rising on that scale.96 Moreover, suggestions coming from English nineteenth-century liberalism did not exclude a
path of civil and juridical development of the Indians that would lead them to
independence.97 Like Mancini, Falcone and Caffarel followed evolutionist concepts in picturing the Africans as children in comparison with Europeans, who
were adults. Liberal colonialism belongs within the framework of a philosophy
92
See Sandro Mezzadra and Enrica Rigo, “Diritti d’Europa: Una prospettiva postcoloniale sul diritto coloniale,” in Oltremare: Diritto e istituzioni dal colonialismo all’età
postcoloniale, ed. Aldo Mazzacane ðNaples, 2006Þ, 175–204, esp. 178–80.
93
Atti del Congresso coloniale italiano in Asmara, 122.
94
Ibid., 123.
95
Ibid., 133.
96
Ibid., 121–22.
97
Mezzadra and Rigo, “Diritti d’Europa,” 178.
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of history that believes in progress, “one of the most frequented crossroads of
the period.”98 Juridical differentiation was to be temporary, in the expectation
that the natives would progress, and that meant that progress had to be gradual.
The year 1911 brought the war in Libya. Contemporary public opinion was
stampeded by an increasingly intense press campaign praising the resources of
that North African land but also founding colonial aspirations on a need to
redeem the nation after the defeat of Adua in 1897. The Pascolian myth of the
“great proletariat” that was to launch itself into the colonial enterprise was imbued with Socialist-leaning rhetoric that implied that the colonies would be
an outlet for a poor but prolific land and that Italian colonialism was a demographic colonialism, different from the plutocratic imperialism of both France
and England.99 Given that context, in the second decade of the twentieth
century the war in Libya provided juridical culture with an opportunity for a
colonialist discourse founded on the exaltation of blood and race.100 In trade
union circles Sorel’s pronouncements, drawn from the myth of the “revolutionary war,” began to circulate. The “workers’ imperialism” that they proposed became one of the ideological premises of Fascism.101 Historians have
discussed the true consistency of an “Italian model” of colonialism, at times
locating the particular motivation of Italian colonialism in a search for internal
prestige.102
To summarize colonialism in the age of liberalism from the viewpoint of
juridical ideology: in general, the jurists who justified Italian expansion forcefully insisted on the idea of the civilizing mission, which seems to me to represent a principal theme that returns in an entire publicity campaign bridging the
nineteenth and twentieth centuries, along with the topic of a search for new lands
for emigrant workers. That insistence brought Italy closer to France, the country
that best represented the mission civilisatrice and an imperial grandeur that Italians could observe close at hand. Italy spelled out the idea of the civilizing mission differently from the French, however, and Italian intellectuals criticized
France for its policies of assimilation. Italians found it inconceivable to make
“citizens” of subjects in any manner whatsoever. A civilizing mission without
assimilation might seem to be one of the paradoxes of the colonialist ideology in
Italy. From the point of view of “indigenous policies,” in fact, Italians seemed
Costa, “Il fardello della civilizzazione,” 174.
Giovanni Pascoli, La grande proletaria si è mossa ð1911Þ, reprinted in Pascoli,
Patria e umanità: Raccolta di scritti e discorsi ðBologna, 1923Þ. See also Labanca,
Oltremare, 376–80.
100
See Giulio Cianferotti, Giuristi e mondo accademico di fronte all’impresa di
Tripoli ðMilan, 1984Þ.
101
See Zeev Sternhell, Naissance de l’idéologie fasciste ðParis, 1989Þ, and The Birth
of Fascist Ideology ðPrinceton, NJ, 1994Þ, 163–77.
102
See Nani, Ai confini della nazione, 46; Labanca, Oltremare, 473ff.
98
99
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Race and Empire
819
to express a much greater admiration for the British Empire, and particularly for
its pragmatic ability to dominate and administer. Even if France was the empire
that Italians implicitly had in mind, they held the British model to be the one
to imitate. According to Mariano D’Amelio, writing in 1913, the British represented “modern Romans,”103 and in fact the English too often defined themselves as “new Romans.”104 In two essays published in the early twentieth century and reprinted on several occasions, the Irish jurist James Bryce, former
Under-Secretary of State for Foreign Affairs under Gladstone in the 1880s, proposed a close political and juridical comparison between the Roman Empire and
the British Empire in India, focusing in particular on the problem of “fusion”
with “the provincials” and on the diffusion throughout the world of juridical
systems promoted by the two empires.105 Between the eighteenth and nineteenth
centuries, the British, with an awareness of being the true heirs of the Romans,
also harbored a fondness for Italy, and reference to the Roman tradition became
a cliché not only of the culture of travel but also of political rhetoric.106 Where
Italy is concerned, it is clear that attributing the epithet of “new Romans” to the
English also functioned as a way to set up a model for Italian political colonization. The English—according to contemporary parlance in Italy—dominated
by insisting on differences without universalist and abstract illusions; their policies were not derived from the egalitarian concepts of the Enlightenment. What
is more, racial difference was a criterion that was formally considered to be
crucial in the administration of the British colonies.107 This is why Italian juridical ideology brought together a strong idea of civilizing mission with the theory
and practice of an ideology of difference imbued with racism. Italian juridical
ideology was a hybrid.
I want to emphasize that jurists, in harmony with a general historical picture
that sees them as playing a preponderant role in the construction of the late
nineteenth-century state, made notable contributions to establishing the idea of
mission. Indeed, as Bovio had pitilessly stressed—against the objections of some
anticolonialist currents—Italy did not have a great deal of civilization that it
could export. It was held back by the fragility of a liberal construction that was
D’Amelio, “Colonia Eritrea,” 1,055.
See Robert L. Tignor, “Foreword to the Second Edition,” in Jürgen Osterhammel,
Colonialism: A Theoretical Overview ðPrinceton, NJ, 2005Þ; Tignor, “Lord Cromer.”
105
James Bryce, “The Ancient Roman Empire and the British Empire in India,” and
“The Diffusion of Roman and English Law throughout the World,” in James Brice,
Studies in History and Jurisprudence, 2 vols. ðOxford, 1901Þ. The topic has been treated
recently in Krishan Kumar, “Greece and Rome in the British Empire: Contrasting Role
Models,” Journal of British Studies 51, no. 1 ð2012Þ: 76–101.
106
See John Pemble, The Mediterranean Passion: Victorians and Edwardians in the
South ðOxford: Clarendon Press; New York: Oxford University Press, 1987Þ, 64 –84.
107
See Philippa Levine, The British Empire: Sunrise to Sunset ðHarlow and New
York, 2007Þ, in Italian translation as L’impero britannico ðBologna, 2009Þ, 114 –15.
103
104
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De Napoli
often threatened by antisystem forces and by the incomplete construction of
the state, to say nothing of such immense social problems as the southern question and illiteracy. I believe that without the intervention of a class of jurists
who were also authoritative in the area of politics, the idea of mission would
have been emptied of meaning. It was the jurists who emphasized that Italy’s
mission was above all one of juridical civilization: it lay in the exportation of
the superior juridical civilization derived from Roman law, of which Italians
were the natural heirs. Arguments of the sort were characteristic of the Fascist
period from the start: “After the Rome of the Caesars, that of the Popes, there
is today a Rome, the Fascist Rome, which, simultaneously ancient and modern,
demands the admiration of the world.”108 For many intellectuals, the new Fascist Rome was above all a juridical civilization: Rome had given its juridical
principles to the world. All the more reason for Fascist jurists to harp on the
theme “Roma fortissima, perchè Roma del Diritto” ðRome ultra-strong, because
Rome of LawÞ, to use Bovio’s words. Moreover, one of the areas in which the
Rome of the Caesars and the Rome of Il Duce were in fact similar was, precisely, that of colonial law, the law that had made the existence of the Roman
Empire possible after its military conquests and that the jurists of the Ventennio valued highly.109
Fascist Colonial Racism between Continuity and Discontinuity
According to a well-established historiographical thesis, at its start the Fascist
regime brought no substantive changes to colonial policy of the liberal age.
More than anything, a change occurred in the formal codes of that policy and
in a radicalization of official language and political symbolism.110
The regime wavered on the question of citizenship: in 1933 a relatively assimilationist law was passed for Somalia and Eritrea conceding Italian citizenship in a number of cases of meticci, or children born of mixed unions.111 That
108
Speech given March 18, 1934, before the Quinquennial Assembly of the Fascist
Regime, now available in audio in Renzo De Felice, Mussolini, multimedia edition ðTurin,
2001Þ.
109
On the colonial juridical studies that flourished under Fascism, see Olindo De
Napoli, La prova della razza: Cultura giuridica e razzismo in Italia negli anni trenta
ðFlorence, 2009Þ, 1–2; Silvia Falconieri, La legge della razza: Strategie e luoghi del
discorso giuridico fascista ðBologna, 2011Þ. See also Gennaro Mondaini, “Il diritto
coloniale italiano nella sua evoluzione storica ð1882–1939Þ,” in Studi di storia e diritto
in onore di Carlo Calisse, 3 vols. ðMilan, 1940Þ, 3:17–36.
110
See Luigi Goglia, “Sulla politica coloniale fascista,” Storia contemporanea 1
ð1988Þ: 35–53; Goglia, “Note sul razzismo coloniale fascista,” Storia contemporanea 6
ð1988Þ: 1,223–66.
111
On the legge organica no. 999 of 1933, see Giulia Barrera, “Patrilinearità, razza e
identità: L’educazione degli italo-eritrei durante il colonialismo italiano ð1885–1934Þ,”
Quaderni storici 109 ð2002Þ: 32–53. See also De Napoli, La prova della razza, 3–18.
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orientation was decisively disavowed in 1934, when Benito Mussolini personally assumed responsibility for the ministry that controlled the colonies ðlater the
Ministero per l’Africa ItalianaÞ and then declared war on Ethiopia. After the
conquest of that country, management of colonial policies changed course, turning in particular against persons of mixed race and ða detail that is not often
notedÞ against women. The legge organica for the empire112 confirmed a 1933
provision that established loss of citizenship and acquisition of subject status for
an Italian woman who married a native. Furthermore, the decree barred children
of mixed blood who had not been legally recognized by their Italian fathers
from acquiring citizenship. A later provision ð1937Þ penalized Italian citizens in
the colonies who maintained relations “of a conjugal character”—that is, stable
relations of an intimate nature—with native women ðin fact, the decree referred
generically to “subjects”Þ. In this new and racist vision, African women could,
at most, be considered a sexual outlet for Italian men.113
This was a radical change, and it happened in a very short period of time:
there was something like a legislative shock prompted by the war and by Fascist
Italy’s new imperial awareness in which the racist laws had “a disruptive effect
on the principles of government . . . and implied their redefinition.”114 In 1940
the total exclusion of persons of mixed race from citizenship was passed into
law.115 Carlo Costamagna, a jurist and a Fascist politician, but one who maintained a certain independence, noted this change of course and this internal
contradiction within the regime. He pointed out that Italian legislation had been
“in the past fairly uncertain because of the phenomenon of meticciato,” beginning with the Eritrean civil code that was never put into effect and extending as
far as the organic law for Eritrea and Somalia of 1933, which admitted persons
of mixed blood to citizenship under certain conditions. According to Costamagna, “Our legislative policy reflected an influence from French colonial legislation, which, after the Great War, had been reshaped in a sense favorable to
meticciato, in view of a policy of assimilation ðlaws of November 16, 1914, for
Indochina, November 5, 1928 and November 4, 1930Þ. Only after the acquisition of Ethiopia and the foundation of a colonial empire worthy of the name did
the Italian legislator take on, with different criteria, the problem of the purity and
the prestige of the metropolitan race.”116
112
Law 1019 of June 1, 1936.
De Napoli, La prova della razza, 63–80. See also Ruth Iyob, “Madamismo and
Beyond: The Construction of Eritrean Women,” in Italian Colonialism, ed. Ruth BenGhiat and Mia Fuller ðBasingstoke, 2005Þ, 217–38.
114
Aldo Mazzacane, “Il diritto fascista e la persecuzione degli ebrei,” Studi storici 1
ð2011Þ: 115. See also Olindo De Napoli, “The Origin of the Fascist Laws under Fascism:
A Problem of Historiography,” Journal of Modern Italian Studies 17, no. 1 ð2012Þ:
106–22.
115
Law of May 13, 1940, no. 822.
116
Carlo Costamagna, “Razza,” in Dizionario di politica, vol. 4, ed. Partito Nazionale
Fascista ðRome, 1940Þ, 28.
113
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De Napoli
Historiography has not always grasped the break between the 1933 orientations and those of 1936–37.117 In reality, in the area of racism Fascism made
a public display of a continuity that did not exist. This may even be one of the
most interesting aspects of the Fascist regime, where it shows itself as not
monolithic and not always consistent. Between the policy of the early 1930s regarding indigenous populations and that of the latter half of that decade there
is a clear fracture, despite the deafening and monotonous chorus of politicians
and jurists who proclaimed Fascism’s continuity in colonial policies and in racism. If we look closely at the history of colonial racist law, the turning point
was not in 1922, but rather in 1935. Despite this, continuity was the leitmotif
of Fascist rhetoric where colonial racism was concerned. In juridical culture as
well, Fascism was not one homogeneous block; it proposed a shifting synthesis
of stubbornly held traditions ðwhat Pietro Costa has called “vischiosità tradizionalistiche”Þ and modernizing and palingenetic impulses.118 The mid-1930s
represents the moment at which these latter tendencies began to take hold, both
more generally and from a juridical point of view.
By that time, the paradigm for racism had begun to take increasingly clear
inspiration from a new source. No longer drawing on nineteenth-century evolutionism to view Africans as children who were the proper objects of the paternalistic mission of the white race, it shifted instead to a clearer determinism
in which black people were biologically and eternally inferior.119 Moreover, if in
the homeland antisemitic racism was shot through with spiritualistic notes, colonial racism seemed to be a bare biological discourse.120 Not that a certain racial hierarchization did not exist in the colonies as early as the liberal period;121
but what we need to grasp is that the gap between the juridical culture and actual
legislation in 1935 signified a passage to a new paradigm of racism, hostile to
117
In his analysis of how the racist viewpoint penetrated the concept of citizenship,
Pietro Costa sees a line of continuity between the 1933 legislation and imperial legislation after 1936: see Costa, Civitas, vol. 4, L’età del totalitarismi e della democrazia,
283. In contrast, the research of Giulia Barrera clearly shows an awareness of the
changes in 1935–36 in interviews with Eritrean women who lived through that period:
Giulia Barrera, “The Construction of Racial Hierarchies in Colonial Eritrea: The Liberal and Early Fascist Period ð1897–1934Þ,” in A Place in the Sun: Africa in Italian
Colonial Culture from Post-Unification to the Present, ed. Patrizia Palumbo ðBerkeley,
2003Þ, 81–115. See also Gianluca Gabrielli, “Il razzismo coloniale italiano tra leggi
e società,” Quaderni fiorentini per la storia del pensiero giuridico moderno 33–34
ð2004–2005Þ, 2 vols., 1:343–58, esp. 354–58; Richard Pankhurst, “Lo sviluppo del razzismo dell’impero coloniale italiano ð1935–1941Þ,” Studi piacentini 3 ð1988Þ: 175–95,
esp. 175–76.
118
Costa, Civitas, vol. 4, L’età dei totalitarismi e della democrazia, 218.
119
See Francesco Germinario, Fascismo e antisemitismo: Progetto razziale e ideologia totalitaria ðRome and Bari, 2009Þ.
120
See Roberto Maiocchi, Scienza italiana e razzismo fascista ðFlorence, 1999Þ, 241ff.
121
See Barrera, “The Construction of Racial Hierarchies.”
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823
promiscuity and explicitly renouncing the slightest hint of juridical civilization.
Now natives were not “children” or minors that the guidance of the civilized
whites could induce to ascend, evolve, or be “transformed,” as Bovio put it, but
rather were populations belonging to a race that was and would remain biologically inferior. The law, at that point, was no longer a wealth to be offered, even
if by imposition, but simply an instrument of domination. If colonial discourse
had long basked in the idea of a pro tempore differentiation of laws in the expectation that the savages would evolve to the level of European juridical and social forms, by the mid-1930s Fascist imperialism, with its new racism, asserted
that progress of the sort was impossible.122 Fascist law was also structured on
the basis of a relationship with disciplines distant from the law, such as the biological sciences, in a general reordering of the encyclopedia of knowledge. This
meant that the new colonial juridical concepts were impacted by sciences traditionally held to be unrelated to law, such as biology and anthropology.123 The
anthropologist Lidio Cipriani, who was a member of the Race Office of the
Ministry of the Interior, responded with a “firm no” to the question of whether
the indigenous peoples of Africa were capable of progress.124 Humanistic studies
were engaged in these cultural tempests as well. The historian Raffaele Ciasca,
for example, made use of botanical comparisons to depict Fascist colonial policies against persons of mixed race, stating that it was important to learn from
the experience of other colonizing countries “the extent to which the inferior
mixed races ½il metticiume have hampered the work of profound penetration of
the metropolis in the colonies, given that the fruit of the grafting of civilization
on barbarity is often ashes and poison.”125
In my opinion, an emphasis on the impossibility of evolution and a tendency
toward determinism, accompanied by hostility toward racial promiscuity, represented a substantial change from the liberal position on racism. More generally, we can note the shift from a philosophy of history based on the myth of
According to Barbara Sòrgoni, at the beginning of the twentieth century “some
exponents of the juridical world were in agreement in considering the ‘less civil’ characteristics of the colonized societies to be of environmental origin, hence open to betterment. Those characteristics would progress, however, with such slowness as to put off
to an indefinite future any eventual right of citizenship for colonial subjects”: Sòrgoni,
Parole e corpi, 252.
123
See Mazzacane, “La cultura giuridica del fascismo,” 5–6.
124
Quoted in Francesco Cassata, “La difesa della razza”; Politica, ideologia e immagine del razzismo fascista ðTurin, 2008Þ, 231.
125
Raffaele Ciasca, Storia coloniale dell’Italia contemporanea: Da Assab all’Impero
ðMilan, 1938Þ, 707. The word tòsco is an archaic term for poison: Ciasca is referring to a
line in the poem of Giosuè Carducci, “non crescono arbusti a quell’aure, o dan frutti di
cenere e tòsco” ð“Per la morte di Napoleone Eugenio,” 1877Þ. In the post-Fascist era Ciasca
was a senator representing Democrazia Cristiana and president of the Istituto Italiano per
la Storia Moderna e Contemporanea.
122
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De Napoli
progress to a conception based on the idea of history as the result of a struggle between civilizations or races and on an obsession with decadence and
degeneration.126 A new racism lent legitimacy to juridical discourse on imperialism, with enormous consequences—as we shall see—from the juridicalpolitical point of view.
An Odd Couple: Totalitarianism and Colonialism
The imperialist assertion of Italian racial supremacy in Africa became a formula used in support of a genuine Fascist revolution in law and dogmatics.
In the late 1930s and the 1940s that revolution was predicted by a number of
jurists who escape facile classification within the current of thought known as
“Fascism of the Left,”127 which traced its origins to Fascist syndicalism and
theorized a new antibourgeois revolt.128 This revolution in the law moved in a
substantialist, antiformalist, and anti-idealist direction, and it was to lead the
Italian juridical system to a closer resemblance to National Socialist Staatsrecht
involving a Fürerprinzip by which the words of Il Duce would be taken as a
genuine source of law and an interpretive criterion for their sources. That “new
law,” in fact, would be born of the new “jurists of the empire” whom Costamagna called on Italian universities to start forging. Here lies the fundamental
connection between juridical racism and colonialism in its Fascist imperial
version. The right to empire, according to Costamagna, “withers away” in the
hands of those whom he ironically called legisti to signify that he was speaking
of jurists who remained tied to the old formalistic dogmas and were incapable of
understanding the intimate dynamic of the Fascist substance of the “new law.”
Such men had shown the most absolute “indifference for the ends” and now were
unable to serve the Fascist revolution. Costamagna writes:
126
See, for example, the influence in this period of Oswald Spengler, in particular, his
Der Untergang des Abendlandes: Umrisse einer Morphologie der Weltgeschichte ðVienna, 1918Þ, 2 vols. ðMunich, 1922Þ, in English translation as The Decline of the West,
2 vols. ðNew York, 1939Þ. Spengler’s early works were translated into Italian on the
initiative of Benito Mussolini: Michael Thöndl, “Der ‘neue Cäsar’ und sein Prophet: Die
wechselseitige Rezeption von Benito Mussolini und Oswald Spengler,” Quellen und
Forschungen aus italienischen Archiven und Bibliotheken 85 ð2005Þ. On the topic of the
degeneration of Italian scientific culture, see Claudio Pogliano, L’ossessione della razza:
Antropologia e genetica nel XX secolo ðPisa, 2005Þ. On racism as narration of the history of the war between the races, see Foucault, Il faut défendre la société; “Society Must
be Defended”; Bisogna difendere la società, 61–77.
127
See Giuseppe Parlato, La sinistra fascista: Storia di un progetto mancato ðBologna,
2000Þ.
128
Anti-bourgeois polemics were the main thrust of the “Fascist cultural revolution”
of the late 1930s and involved “an unprecedented deployment of propagandistic means”:
Renzo De Felice, Mussolini: Il duce, 2 vols. ðTurin, 1981Þ, vol. 2, Lo stato totalitario
1936–1940, 100.
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825
These men have not felt the Revolution: they serve, for the most part, as mercenaries,
not as volunteers. They serve with the same narrow-minded and arid spirit with which
they had been formed in the cult of the rights of man in a utilitarian and materialist
climate. . . . They have rejected the vital shock, the spiritual catharsis of the new revolution, or rather they have been rejected by it. Only a virtuosity of a poor alloy; not an
outburst of passion, not a lightning bolt of faith. And for that reason, law, which is the
superior expression of the creative spirit in the political order, withers in their hands.129
Pietro De Francisci, an eminent scholar of Roman law ðpublic law in particularÞ, a papyrologist, and the Fascist Ministro di Grazia e Giustizia ðMinister of
Grace and JusticeÞ from 1932 to 1935, spoke of the “new law” in similar terms.130
Inaugurating the first Italian Juridical Congress in 1932, he proposed the need
for a “new dogmatics” that would represent “a body of principles put to the service of a practical interest and having an instrumental value in respect to a given
juridical order.”131 In this context, laws constitute only “the endpoint of a process that exists beyond the law,” that is, within political organization. Dogmatics must be founded not on presumed universal principles, as asserted in liberaldemocratic doctrines, but on particular and concrete principles, which meant
those asserted by Fascism.132 When De Francisci returned to academic life in the
years of state racism ðfrom 1936 on where colonial racism was concernedÞ, he
worked—clearly in ways that were consistent with his studies and with the theoretical position outlined above—to reconcile Roman law, traditionally considered law with a universalist vocation, with the new racist laws that were on the
regime’s agenda.133
It should be noted that the thought of Carl Schmitt, which the review directed
by Costamagna, Lo Stato, began to introduce into Italy, influenced theorization
about the osmosis between law and politics—and the consequent loss of autonomy of the formal construction of the law.134 In reality it was the cultural
climate of the entire period of Fascism in the 1930s and 1940s that urged revolt
against the traditional juridical forms that had arisen in the liberal era and drew
sustenance from formalism. Formalism lacked “awareness of the voluntaristic
element,” which was founded on value judgments rather than formal procedures: “It is in fact an illusion of pure dogmatics that the operations by means of
129
Carlo Costamagna, “I giuristi dell’Impero,” Lo stato: Rivista di scienze politiche e
giuridiche 4 ð1939Þ: 243. See also Costamagna, “Sempre su la dogmatica,” Lo stato:
Rivista di scienze politiche e giuridiche 4 ð1939Þ, 251, a text that is interesting for its
references to the law of National Socialism, which had broken with the rule of law.
130
See C. Lanza, “Pietro De Francisci,” in DBI.
131
Pietro De Francisci, “Ai giuristi italiani: Discorso inaugurale del Io Congresso
giuridico italiano,” Lo stato: Rivista di scienze politiche e giuridiche 10 ð1932Þ: 681.
132
Ibid., 678–79.
133
This development is reconstructed in De Napoli, La prova della razza, 111–34.
134
See Wolfgang Schieder, “Carl Schmitt und Italien,” Vierteljahreshefte für Zeitgeschichte 37 ð1989Þ: 1–21.
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De Napoli
which concepts, general principles, and the rules destined to resolve a concrete
case that are derived from norms are simply procedures of formal logic.”135
Italian juridical historiography regarding Fascism has often made pronouncements against formalism, understood as supine obedience to Fascist law
on the part of Italian magistrates.136 On the contrary, an attentive analysis shows
that the Fascist revolution in the law—the imperialist and racist law that aimed
at introducing a sort of Führerprinzip in Italy—was in substance completely
antiformalist.137 In short, it can be called “totalitarian law”—a totalitarian law
that found legitimacy, in Costamagna’s mind, in the new imperial reality. “A
party that governs a nation in totalitarian fashion is a new event in history,”
Mussolini had stated, and Stefano M. Cutelli, a jurist much less influential than
those who have been mentioned thus far but who had a notable visibility after
the antisemitic developments of 1938, stated that such words ought to “awaken
a good will in all those who still lazily sleep on the old dogmatics of law.”138
Among the countless references to an antiformalist totalitarian law in the late
1930s I have cited Cutelli because, more than any other writer, he linked totalitarian law, antiformalist revolt, and racism precisely on the basis of the
norms of colonial racism, and he analyzed them in this way from the very start
in his review, Il diritto razzista.139 It was Costamagna, however, who identified
the connection between imperialist colonialism and Fascist “new law.” After the
conquest of the empire, jurists were expected to give strong support to a new
project and a new idea of law based on different general organizing principles.
In this sense, according to the interpretive key that I propose here, the new colonial racism and the antisemitic laws that followed it and were in some ways
connected to it became, in the Italian juridical experience, the premise and the
impetus for a totalitarianization of the regime.140
135
De Francisci, “Ai giuristi italiani,” 678. See also Pietro De Francisci, “La missione
del giurista,” in Atti della Società italiana per il progresso delle scienze: XVI riunione,
Perugia, 30 ottobre–5 novembre 1927 ðPavia, 1928Þ.
136
For example, see Paolo Grossi, “Pagina introduttiva,” Quaderni fiorentini per la
storia del pensiero giuridico moderno 28 ð1999Þ: 1–5; Grossi, “Pagina introduttiva ða
sessanta anni dalle leggi razziali del 1938Þ,” Quaderni fiorentini per la storia del pensiero
giuridico moderno 27 ð1998Þ: 1–9; Grossi, Mitologie giuridiche della modernità ðMilan,
2001Þ.
137
For reflections in this second direction, see De Napoli, La prova della razza, 234–39;
Ferdinando Treggiari, “Questione di stato: Codice civile e discriminazione razziale in una
pagina di Francesco Santoro-Passarelli,” in Per saturam: Studi per Severino Caprioli, ed.
Giovanni Diurni et al., 2 vols. ðSpoleto, 2008Þ.
138
Stefano M. Cutelli, “Rassegna della legislazione,” Il diritto razzista 1 ð1939Þ: 73.
139
See Giancarlo Scarpari, “Una rivista dimenticata: ‘Il diritto razzista,’ ” Il Ponte 1
ð2004Þ: 112 – 45; De Napoli, La prova della razza, 234 –39.
140
The importance of the experiment of new colonial racism for the later development
of antisemitism is stressed, for one, by Neil MacMaster, Racism in Europe, 1870–2000
ðBasingstoke, 2001Þ.
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The effect of totalitarianism taking hold of the Fascist regime was to move it
closer to National Socialism; the laws against the Jews represented the apex of
that shift.141 Il Duce and some in the extremist wing of Fascism were attracted
by the fact that the “scientific” nature of the racist theories gave German National Socialism a coherence that Italian Fascism seemed to lack.142 Moreover,
around 1935, Hitler ðwho up to then Mussolini appeared to consider only his imitatorÞ began to represent the example of an all-out totalitarianism, given that
he had concentrated all powers in his hands and left the traditional forces only
a highly limited and conditioned space—something that had not happened in
Italy, where the Crown, the army, and the Catholic Church confined the Fascist
regime within certain limits.143
Traditionally, the distinctive traits of totalitarianism are held to be an ideology
that claims to explain and comprehend all social phenomena; the permanent
mobilization of the masses; an integral politicization of social relations; a tightly
repressive control; and a total monopolization of political power.144 Historians
who study this model have often seen Fascism as gradually losing its ideological
coherence due to inadequate attempts to mobilize the political arena and, above
all, to occupy it completely. As early as 1951, Hannah Arendt, a noted expert on
the origins of totalitarianisms, did not consider Italian Fascism to be a totalitarian regime ðunlike Stalinism or National SocialismÞ,145 and the Italian regime
gradually came to be presented as an incomplete or limping totalitarianism.
A revision of that thesis has recently been proposed that stresses that all
totalitarian experiments have been incomplete or imperfect when compared to a
theoretical model of perfect totalitarianism ðas seen in George Orwell’s novel,
1984Þ. One can rightly use the term “totalitarian” for the Italian Fascist regime,
looking beyond its problematic results to consider its “totalitarian method” of
governing. The category of totalitarianism, that is, can be understood on the
basis of the political dynamics put into motion more than by the results obtained, which may be partial.146
This can be seen in the events analyzed here. The new imperialist and antisemitic racism was the basis for putting forward a change of direction toward
141
Alberto De Bernardi, Una dittatura moderna: Il fascismo come problema storico
ðMilan, 2001Þ, 270.
142
Pierre Milza and Serge Berstein, Le Fascisme italien: 1919–1945 ðParis, 1980Þ,
218ff.
143
On the intepretation of Fascism as an imperfect totalitarianism, see Alberto Aquarone, L’organizzazione dello stato totalitario ðTurin, 1995Þ.
144
Juan J. Linz, “Totalitarian and Authoritarian Regimes,” in The Handbook of Political Science, ed. Fred I. Greenstein and Nelson W. Polsby ðReading, MA, 1975Þ.
145
Hannah Arendt, The Origins of Totalitarianism ðNew York, 1951Þ.
146
Emilio Gentile, La via italiana al totalitarismo: Il partito e lo stato nel regime fascista
ðRome, 2008Þ, in English translation as The Italian Road to Totalitarianism ðLondon,
2004Þ. See also Totalitarianism and Political Religions: Concepts for the Comparison of
Dictatorships, ed. Hans Maier, trans. Jodi Ruhn, 3 vols. ðLondon, 2004–7Þ.
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De Napoli
totalitarianism in the juridical system, with a clear setting aside of the juridical
principles traditionally asserted and the old systematic arrangements, beyond
any effective success of such a project. In other words, totalitarian dynamics
were put into motion within juridical culture.
A first aspect of this state of affairs can be seen in the phenomenon of the
biologizing of the juridical, hence in its loss of autonomy in connection with the
positive sciences. The biologizing of the juridical corresponded to the occupation of an institutional and cultural space by a politics that increasingly took
inspiration from the criteria of positive science. Commenting on the first legislative provisions in the colonies in the 1930s, Mariano D’Amelio noted that
“anthropological truth” prevailed over juridical presumption. Similarly, the anthropologist Giuseppe Sergi asserted that “knowledge of the physical and psychic characteristics of men, of the natural processes of development, and of
customs and institutions, constitutes the foundation of legislative and juridical
policy.” Despite a constant stream of works written to present Italian racism as
“spiritual,” biological elements were inexorably introduced into laws. The criteria for identifying Jews in the laws of 1938 and 1939 were biological; many of
the provisions that regulated the lives of the colonial populations were inspired
by biological considerations.
Second, given pressures to interpret the racial laws according to their spirit
and beyond their mere forms, doctrine was oriented so as to feature, as a source
of law, the will of the head of state as it was expressed in the speeches of
Il Duce. This was in line with the Führerprinzip as theorized in Germany, and
in fact recent studies in political science have reevaluated the figure of the
charismatic leader and his will as the cornerstone of totalitarian regimes.147
To be sure, antisemitism and the laws against the Jews had a specificity and a
juridical expression of their own with respect to the colonial racism under
examination here. With the conquest of Ethiopia, Italy had officially become an
empire and a racist state, but it was not to be taken for granted that it would
move from discrimination against African natives to discrimination aimed at
Jews, because the two groups involved different problems.
Jews, in fact, were woven into the fabric of Italian society, economy, and
culture; integration was strong, including at the political level, given that many
Jews were Fascists. In contrast, the indigenous populations of the African colonies had always lived in a condition of subordination and difference in comparison with the Italians ðone need only think of the absence of any form of
representation of the subject populationsÞ. All of these considerations can be
translated into juridical terms by saying that African natives were subjects
ðalthough Libya had a “Libyan citizenship” that in reality differed little from
subject statusÞ, whereas the Jews were Italian citizens. This presented a further
147
Michael Halberstam, Totalitarianism and the Modern Conception of Politics
ðNew Haven, CT, 2004Þ.
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Race and Empire
829
problem for the racist action of Fascism. The difficulty inherent in antisemitic
laws was to persuade public opinion to accept them. Philosophic theories, “scientific” assertions, and geopolitical, historic, economic, and even juridical theories arose to justify them. In humanistic culture, “spiritualistic” theses helped
make racism acceptable in a cultural area not prone to biological determinism,
while leaving biological requisites for applying anti-Jewish laws uncontested.148
In colonial racism, on the other hand, few saw any problem with a rough and
deterministic biological discourse.
Although some differences of opinion remain, most of the historiography is in
agreement on the idea that the racist colonial and anti-Jewish laws together
represented a sign of an acceleration of totalitarianism, a phase that Robert O.
Paxton calls the stage of “radicalization or entropy.”149 Mussolini and the Fascist
elites shared a vision of imperialist colonial and antisemitic racism as a factor
that had operated continuously in the service of the totalitarian process. In order
to assert that vision they sometimes used propaganda to impose a view of the
history of Fascism without any moments of fracture on the theme of race.
A historiographic question of particular importance lies in the connection
between imperialism, “new racism,” and totalitarianism. It seems to me that this
is an important point for the interpretation of the history of Italian law in the
1930s and the 1940s that has seldom been made in international historiography
on colonialism. Indeed, even in theorizations and comparisons of the many colonial experiences,150 the specific nature of the Italian experience of constructing an empire precisely when totalitarian dynamics were active in the country
has been unrecognized or understated.
Italy is in fact considered to be the only totalitarian country among the
imperialist countries of Europe ðalthough much has been written about the vain
ambitions of Italian imperialismÞ. Or, to be more precise, Italy was the only one
of the totalitarian countries that constructed an overseas empire,151 given that
Germany had already lost its colonies at the end of the Great War.152
148
See Gianni Scipioni Rossi, Il razzista totalitario: Evola e la leggenda dell’antisemitismo spirituale ðSoveria Mannelli, 2007Þ; Olindo De Napoli, “El problema filosófico
del racismo fascista desde la perspectiva de la cultura juridica,” Fronesis 3 ð2008Þ: 119– 47.
For some of the theses of the jurists who created colonial racism, see Ilaria Pavan, “La cultura penale fascista e il dibattito sul razzismo ð1930–1939Þ,” Ventesimo Secolo 17 ð2008Þ:
45–78; and De Napoli, La prova della razza, 1–101, 205–11.
149
Robert O. Paxton, “The Five Stages of Fascism,” Journal of Modern History 70,
no. 1 ð1998Þ: 20–21.
150
See, for example, Crawford Young, The African Colonial State in Comparative
Perspective ðNew Haven, CT, 1994Þ; Osterhammel, Colonialism; Devleena Ghosh and
Paul Gillen, Colonialism & Modernity ðSydney, 2007Þ.
151
A similar argument can be found for the Japanese empire in Louise Young, Japan’s Total Empire: Manchuria and the Culture of Wartime Imperialism ðBerkeley,
1998Þ.
152
This point is valid except when a connection is made between the Nazi expansion
in Europe and the colonial policies of the European empires: see, for example, Mark
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830
De Napoli
What dynamics set off totalitarian juridical discourse in the colonies? Of
course, we need to avoid a deterministic attitude that deduces the existence of
a “totalitarian colonialism” from racist and totalitarian discourse. As always, there
were gaps between public discourse, representations, and juridical and administrative practice. Historiography has just begun to shed light on the phenomenon
of administrative power. On the one hand, there was a desire to create a new class
of young functionaries, “true Fascists” chosen from among ex-combatants; but
on the other hand, incongruent situations in the chain of command, duplications of
job descriptions, and abuses of power persisted.153 Despite these discrepancies,
totalitarian and racist discourse had an effect on the administration and on the
judicial world, beginning with differences in awareness among functionaries and
jurists as a class. The question remains of what sort of dynamics were created
within the administration of life in the colonies and how those processes differed
from the juridical and administrative functions in lands administered as colonies
by nontotalitarian powers.
Some Remaining Considerations
A few marginal notes still need to be made about the analysis proposed here of
the history of Italian colonialism. First among these is an observation on the
culture of the jurists. These men were not—at least, not entirely—a class of
technicians with no stake in the political options that were in play. Individuals
clearly emerge, men who combined professional responsibility and parliamentary involvement with juridical and political theorization ðwith regard to colonialism, this was true of jurists as distant in time as Mancini and CostamagnaÞ.154 Despite the stereotyped ways in which jurists represented their
Mazower, Hitler’s Empire: How the Nazis Ruled Europe ðNew York, 2008Þ, esp. 576–97.
Instead, the differences between colonial and Nazi policies of extermination are stressed
in Robert Gerwarth and Stephan Malinowski, “Der Holocaust als ‘koloniar Genozid’?
Europäische Kolonialgewalt und nationalscozialistischer Vernichtungskrieg,” Geschichte und Gesellschaft 33 ð2007Þ: 439–66. For a clear contrast between the juridical and
“telluric” organization of overseas empires—thanks to reference to the struggle between
Behemoth and Leviathan—see Carl Schmitt, Der Nomos der Erde im Völkerrecht des Jus
Publicum Europaeum ðCologne, 1950Þ. See also Filippo Ruschi, “Leviathan e Behemoth:
Modelli egemonici e spazi coloniali in Carl Schmitt,” Quaderni Fiorentini per la storia
del pensiero giuridico moderno 33 –34 ð2004–5Þ: 379– 462.
153
Chiara Giorgi, L’Africa come carriera: Funzioni e funzionari del coloniamismo
italiano ðRome, 2012Þ, 175–82. “Imperfect colonial totalitarianism” is a topic treated in
Nicola Labanca, “L’impero del fascismo: Lo stato degli studi,” in L’impero fascista:
Italia ed Etiopia ð1935–1941Þ, ed. Riccardo Bottoni ðNaples, n.d.Þ, 35–61.
154
It is truly significant that when Costmagna searched for Italian precursors of
Fascist racism, he cited Mancini: see Carlo Costamagna, “Razza e nazionalità,” Lo stato:
Rivista di scienze politiche e giuridiche 4 ð1939Þ: 248 –49.
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Race and Empire
831
roles in the ottocento and even earlier, doctrine is not neutral. To the contrary, in
the forms in which we have seen it, doctrine argued for a colonial policy and a
racist definition of that policy.
In their own way, such forms remained juridical in nature. Mancini’s metaphor, drawn from private law, of tutelage of the incapable; the assertion of the
nation as the only recognized subject of international law; Bovio’s emphasis
on the construction of the state; the differentialist idea proposed by other scholars of the positive school of penal law; the vision of Costamagna and others that
the general principles of the law had changed with Fascism—all are discursive
formulations that belong ðand in this the jurists complied with their professed
missionÞ within the juridical field.
Second, throughout the liberal age, Italian juridical thought was well integrated within the international context, using themes and arguments that were
widespread at the time in all European lands, and this in spite of the fact that
Italian colonialism was a late development in comparison to those of other
lands. ðMoreover, Italy and Germany were the last among them in the process
of constructing the state.Þ
Finally, Italy is extremely interesting as a case study precisely because in the
Fascist age we can grasp the connection, constructed within juridical debate, between racist colonial law and totalitarianism—a connection that is hard to grasp
elsewhere. It has recently been stated that the colonial state may not have been
the mechanism for crushing rocks that Crawford Young has theorized,155 but
rather an administrative machine that, when possible, preferred to compromise
with existing situations. In this view, massacres of subjects were the exception,
not the norm. I believe that we must ask whether a scheme of this sort functions if the colonizing country under examination is undergoing a move to totalitarianism in the homeland and can be conceived of—as was actually the case
with Italy after 1935—in the state of permanent mobilization defined as war. It
is not superfluous to emphasize here that the cornerstone of Fascist religiosity,
especially after the mid-1930s, was an attempt to inculcate in the Italian people
the idea of being citizen-soldiers.156
Historians have barely begun to throw light on the question of how such a
doctrine managed to influence and change the dynamics of public adminis155
See Young, The African Colonial State. Against Young’s theses, see Bruce J.
Berman, “The Peril of Bula Matari: Constraint and Power in the Colonial State,” Canadian Journal of African Studies 3 ð1997Þ: 556–70. For a different perspective on the
colonial state, see Osterhammel, Colonialism, 49–68. On Italy, see Costa, “Il fardello
della civilizzazione,” 171, where Costa reflects on the one-way direction of juridical
command between the center and the periphery.
156
See Emilio Gentile, “Fascism as Political Religion,” Journal of Contemporary
History 25 ð1990Þ: 229–51.
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832
De Napoli
tration in the Italian colonies in the way that colonial jurisprudence did.157 In
short, totalitarian colonialism is a path that remains to be trodden.
One thing that we still need to examine is the break that took place during
the 1930s. The regime not only became more radical at that time but racism
changed as well. Rather than speaking of a Fascist racism arising in that period,
we should speak of a change of paradigm in racism. That shift consisted in an
affirmation that black people could not evolve as a race; in an aversion to the
mixing of races, understood as a form of racial degradation; and in a more strictly
totalitarian ideology that highlighted the need for white supremacy and avoided
arguments for paternalism. If nineteenth-century racism stated that the African
race was a historical zero, totalitarian racism asserted that it was a future zero.
This difference needs to be noted. The problem is not just to measure the intensity of scorn for the Other but also, and more importantly, to grasp the diversity
of forms that such scorn can inhabit.
157
On how the law began to invade the sphere of private life and sentiments, see
Giulia Barrera, “Sex, Citizenship, and the State: The Construction of the Public and
Private Spheres in Colonial Eritrea,” in Gender, Family, and Sexuality: The Private
Sphere in Italy 1860–1945, ed. Perry Willson ðBasingstoke, 2004Þ, 157–72. On some
interesting comparative aspects of the early racist norms in the colonies established by
the Fascist regime, see Iyob, “Madamismo and Beyond,” 237.
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