The words of Justice and the long italian transition (1943-1958)
| Autor | Antonella Meniconi |
| Páginas | 155-184 |
The words of Justice and the long Italian transition (1943-1958)
Antonella Meniconi
Discourse is not simply that which translates struggles
or systems of domination, but is the thing for which and
by which there is struggle, discourse is the power which
is to be seized. (M. Foucault, The Order of Discourse).1
1. Introduction; 2. To speak in a courtroom; 3. Judicial speeches of transition; 4.
To write judgments in times of change; 5. Conclusion: words matter
1. Introduction
My paper explores how the language of magistrates is one of the keys to
interpreting the Italian transition to democracy. The period between 1943
(the fall of Fascism) and 1958 (when the new Superior Council of the Judi-
ciary, the Consiglio Superiore della Magistratura, was created) was decisive
for the construction of the new Italian democratic system. In the debate at
the Constituent Assembly (1946-47) the “democratic” integrity of the judi-
ciary was much discussed. In particular, the credibility of the upper ranks
was questioned especially by left-wing anti-fascist parties, also in relation to
the dilatory attitude of the Corte di Cassazione (Court of Cassation) in pro-
claiming the results of the referendum, on the choice between monarchy and
republic. Those judges, and especially those at the top of the judicial pyramid,
had been trained and had operated during Fascism thus it was asked: what
would be their degree of “loyalty” to the new democratic system?
First of all, the purge of the magistrates closest to the regime (as more
incisive; indeed, on the basis of accurate research, historiography has now as-
certained it was limited to a few cases and not always exemplary. During the
entire period, about four hundred magistrates out of a thousand cases exam-
ined were subjected to purge proceedings, which amounted to bringing about
ten percent of the entire judiciary to trial before the commissions. However,
1 Foucault (1981) 52-53.
155
ANTONELLA MENICONI
156
of these only a few dozen were effectively expelled from the judiciary, while
some preferred to avoid the shame of going to trial by requesting and obtain-
ing a retirement from the judiciary, but then returned, in some cases, to the
judiciary in subsequent years.2
Moreover, it was a curious game of parts; those who participated, ratio-
, in the purging commissions of the various administrations (special
rules provided for this) were magistrates which created a sort of double role
centrality.3
The issue of democratic integrity was strongly re-proposed because of the
role that the judiciary itself played concretely in the application of the Togliat-
ti Amnesty of 1946 (launched only a few weeks after the referendum), where
the Court of Cassation (in particular Section II) was accused of excessive leni-
ency towards those who were accused of collaborationism.
More generally, as far as the application of the sanctions against Fascism
was concerned, starting from a stricter approach by the Corti d’Assise Straor-
dinarie (Extraordinary Assizes Courts) and the special section of the Court of
Cassation of Milano near the end of the war, the orientation of the judiciary
soon tilted in favour of a moderate application of the new sanctions, despite
the circulars issued by the various Ministers of Justice (Umberto Tupini and
Palmiro Togliatti) ordering the application of the legislation against Fascism
“with speed and rigour”. A sort of “resistance” by the judiciary to the pun-
ishment of crimes committed by Fascists marked the transition phase be-
“human”, of the high magistrates to distance themselves from the mentality,
network of relations and extra-legal considerations with which they were im-
bued during the Fascist era, emerged with force. In this sense the continuity
between Fascism and the new Republic did not only pass through a continuity
of rules and regulations, but also of mentality, of culture. Moreover, also the
power relations within the judiciary and the relationship with politics were
marked by continuity, even if in a different constitutional system. Ultimately,
the relationship between justice (State) and citizens, i.e. an authoritarian one,
changed almost not at all.
Thirteen years after 1948 (the year of the new Constitution), in 1961, a
2 Meniconi (2017), also for the bibliography.
3 As Massimo Pilotti (see below) president of the purge Commission of the Ministry
of Foreign Affairs.
Para continuar leyendo
Solicita tu prueba