Entrenched Legal Conservatism & Postwar Italy’s Failure of Transitional Justice

• In Event: Human Rights Around the World

Abstract

Holding former authoritarian regime officials and collaborators accountable is never an inevitable product of the transition to democracy. The literature on transitional justice has explored the numerous factors that affect the likelihood of post-transition trials and convictions for former officials’ involvement in human rights abuses. Some scholars highlight changes in the balance of power (Pion-Berlin 1994), while others focus on shifts in the dominant legal paradigm (Gonzalez Ocantos 2014, 2016). In this paper, I contribute to this literature by exploring the reasons for the failure of transitional justice in post-WWII Italy from 1945 to the early 1960s. I show that the failure to hold former Fascist officials accountable for their human rights abuses resulted from the enduring dominance of conservative legal factions within key judicial institutions, such as the Court of Cassation, the Constitutional Court, and the High Council of the Judiciary, long after the transition to democracy. Conservative elements on these institutions deployed a literal interpretation of the legal texts to undermine any attempt at accountability against those responsible for the Fascist regime's atrocities. The interpretive approach applied by these conservative elements was in line with long-lasting adherence to an Italian variant of traditional legal positivism. This legal philosophy conceived of the judicial branch as an arm of the state, rather than a bulwark of accountability. Under the Fascist regime, Italian legal professionals had successfully married this legal philosophy with complacency or outright support for authoritarian politics. Therefore, the failure of transitional justice in post-WWII Italy shows that changes in a country’s political leadership, and even, to an extent, democratic reforms may fall short of bringing about transitional justice. Without institutional reforms that specifically target key institutions overseeing the judicial branch and produce significant personnel changes, transitional justice might be doomed to fail. In addition, the Italian case contributes interesting insights to the literature on transitional justice, given the role of foreign occupation in the transition to democracy and the dilemmas of reconstruction following the end of military conflict.

Author

• Lucia Manzi, SUNY Plattsburgh