Judges and legislators in Italian transitional justice (1943-1948)

Over the last few decades, scholars have been focusing increasingly on the issue of transitional justice in many countries. Italy is not an exception: several studies have been devoted to the period from fascism to republic (1944-1948). The contribution of the historians has been massive: most attention has been dedicated to the results of the justice processes (that have been generally considered too indulgent). However, jurisprudential aspects are still awaiting to be fully investigated. In particular, a good vantage point in order to evaluate the relationship between legal sources from a practical perspective would be a juristic investigation about Italian transitional justice. The paper aims to give an insight into the interaction between judges and lawmakers in managing the Italian legal system during the transition from authoritative regime towards democracy. In that period, the structure of law was particularly complex because it involved general and exceptional laws, on the one hand, and ordinary and special judges, on the other. After the fascist regime collapsed, the normative power was undertaken by provisional governments (D. Lgs. Lgt. 25th july 1944 n. 151). At first, the prevalent goal was to severely punish the crimes and abuses committed during the fascist regime (1922-1943) and the German military occupation (1943-1945). Political forces adopted exceptional measures (typical of repressive regimes), that departed from general law: for instance, they provided retroactive sanctions, introduced presumed responsibility and established special courts (D. Lgs. Lgt. 27th July 1944 n. 159 and D. Lgs. Lgt. 22nd April 1945 n. 142). However, it soon became apparent that the goal to achieve peace and democracy was arising amongst post war society, which led to the amnesty of the 22nd June 1946. It was up to the ordinary and special courts to balance out the punishment for past crimes and the achievement of reconciliation. In the prosecution of the individuals involved with the former regime, they enforced the laws promulgated by Italian provisional governments, according to the democratic rule of law. In several cases, judges became the real lawmakers: special courts and the Court of cassation created further exceptions to the already exceptional laws introduced by provisional governments (for instance, the exclusion of several individuals from presumed responsibility). The paper is based on a case study on justice processes regarding past crimes demonstrating the role of the judging in strengthening the democratic rule of law, with particular regard to crimes committed by collaborators during the German occupation, that were in the forefront of public opinion. A relevant area worthy of study concerns the imputability of young collaborators (art. 98 c.p.): here the need to balance general and exceptional law was fundamental. The paper is devoted to the Italian transitional justice, but it could be opened up to include both transnational and interdisciplinary perspectives in order to share and compare the findings.