International Journal of Law in Context


Tainted law? The Italian Penal Code, Fascism and democracy

Stephen Skinnera1

a1 School of Law, University of Exeter1


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

(Online publication November 11 2011)


1 This article is based on papers presented at the British Legal History Conference (Exeter, July 2009, with the assistance of funding from the Society of Legal Scholars), the European Society for Comparative Legal History Inaugural Conference (Valencia, July 2010) and the 9th International Roundtable for the Semiotics of Law (Poznan, September 2010). I thank participants at each event for their valuable observations (especially Dirk Heirbaut, Lorie Charlesworth and Valerio Nitrato Izzo) and am particularly grateful to the following for commenting on various drafts of this article: Catherine Dupré, Richard Ireland, David Fraser, Michael Livingstone, Jenny McEwan and Thomas Watkin. Any errors are my own.