Il principio di legalità fascista: un’ipotesi interpretativa

This essay revisits a question that continental legal historians have long debated yet never settled: whether the criminal law elaborated under Italian Fascism, and crystallised in the Rocco Code of 1930, may properly be called 'authentically Fascist'. Taking Arturo Rocco's 1910 manifesto of legal technicism (tecnicismo giuridico) as its point of departure, it argues that his professed separation of juridical science from philosophy, criminology and politics amounted to a 'soft' variant of legal formalism: beneath the mantle of technical neutrality lay the subordination of law to political power — a subordination realised in full under the regime whose Code his brother Alfredo, as Minister of Justice, politically shaped. The essay challenges the 'dogmatic brake' thesis and the related claim that the principle of legality (nullum crimen sine lege) bridged the liberal tradition and tempered the Code's authoritarianism. Under Fascism, it contends, legality performed none of its democratic guarantee functions, furnishing instead a formal veneer over vague offences, judicial subordination and a pervasive publicisation of individual interests. Rejecting the 'parenthesis' reading while acknowledging deep continuities, it situates the Positive School's selectively appropriated — and squandered — legacy within the distinctive specificity of Fascist criminal law.