Race and Empire: The Legitimation of Colonialism in Italian Juridical Thought

Race and Empire: The Legitimation of Italian Colonialism in Juridical ThoughtAuthor(s): Olindo De NapoliSource: The Journal of Modern History, Vol. 85, No. 4, New Directions in Legal andConstitutional History (December 2013), pp. 801-832Published by: The University of Chicago PressStable URL: http://www.jstor.org/stable/10.1086/672530 .

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Race and Empire: The Legitimation of Italian
Colonialism in Juridical Thought*
Olindo De NapoliUniversità degli Studi di Napoli Federico II

Problems of Methodology and Definition

Many scholars would agree that, however it is structured, colonial dominationcontains within itself a racist principle, and that as a result—to remain within thejuridical realm—every differentiation made between citizens and subjects is in-herently racist. According to Giorgio Rochat, one of the pioneers in the study ofthe phenomenon, Italian colonialism was “saturated with racism and abuse ofpower, which are preliminary conditions for all colonial conquests, because thevery idea of wanting to dispose as one wishes of the fate of a people that is mil-itarily weaker is profoundly racist and oppressive.”1

This general affirmation raises a number of questions. First of all, we need toask whether the existence of racism is something that scholars can discern onlya posteriori, on the basis of canons that are not always easily discernible,2 orwhether it was in some manner noticed or theorized at the time in question. Inother words, if it is true that colonialism is always inherently racist, we need toask ourselves whether it represents itself as racist and whether the discourse thatlegitimates it is founded on race.3

*Translated for The Journal of Modern History by Lydia G. Cochrane. I am grateful

1 Giorgio Rochat, Il colonialismo italiano ðTurin, 1973Þ, 222.2 It seems to me that often studies of racism encounter a difficulty of definition right

from the start and that the problem is pressing in the case of comparative studies. See, forexample, Robert Ross, “Reflections on a Theme,” in Racism and Colonialism: Essays onIdeology and Social Structure, ed. Robert Ross ðThe Hague, 1982Þ, in which the authorproposes to exclude homophobia from the category of racism, given that homosexualityis not genetically passed on to one’s descendants. In a direction quite contrary to thesuperposition of concepts of racism and sexism, see Anna Rossi-Doria, “Antisemitismo eantifemminismo nella cultura giuridica,” in Nel nome della razza: Il razzismo nella storiad’Italia 1870–1945, ed. Alberto Burgio ðBologna, 1999Þ, 455.

3 In connection with problems of self-representation and rhetoric in Fascist juridicalculture, see Aldo Mazzacane, “La cultura giuridica del fascismo: Una questione aperta,”inDiritto economia e istituzioni nell’Italia fascista, ed. Aldo Mazzacane ðBaden-Baden,2002Þ.

to Elena Bacchin for having encouraged me and for following the redaction and revisionof this essay with intelligent observations.

The Journal of Modern History 85 (December 2013): 801–832© 2013 by The University of Chicago. 0022-2801/2013/8504-0003$10.00All rights reserved.



That question is even more to the point if we consider that for a long time rac-ist and nonracist were quite normal divisions in scholarly debate. It was only

802 De Napoli

after World War II that the term “racist” was so clearly stigmatizing that al-most no one with a racist mind-set presented himself as such. Jean-Paul Sartre,for example, stated that antisemitism before the Second World War was catego-rized as being of the order of opinions, whereas it now belongs within the orderof crime.4 In an investigation of a time in which it was not inherently shamefulto declare oneself a “racist” or to expound on the biological and psychic differ-ences between the various races—even to do so explicitly in terms of superiorityand inferiority—the question of whether the colonialist movement and the co-lonialist sensibility represented themselves as racist seems unavoidable.5

Once the presence of a declared racist option is verified, one needs to ask howthat option was expressed in the period under consideration, beyond the nomi-nalism that is inevitable in all categorizations: that is, we need to ask what typesof political and juridical mechanisms were activated. Not all racisms are equal:there can be a racism that does not permit direct contacts with those who are“different”—the “subject” population in the present case—but there can also be aracism within a context of continual exchanges and mingling.6 From a the-oretical point of view, in some cases racism can conform to an evolutionistparadigm, relying on the idea that it is the duty of the superior races to raisethe inferior races to their own state of civilization,7 but in others it can reflecta biological determinism that holds differences to be naturally insuperableand that dictates that the betterment of the inferior race is impossible, if notpolitically erroneous. Or there can be a veiled prejudice of “condescension onthe basis of race” that can be defined as “racialism.” These distinctions arefrequent in the human sciences.8 Different types of racism can have common

4 Jean-Paul Sartre, Réflexions sur la question juive ðParis, 1947Þ, in English transla-
tion by George J. Becker as Anti-Semite and Jew ðNew York, 1948; distribution Pan-theon, 1995Þ. On the shift from “scientific racism” to the new, contemporary forms ofracism, see the summary in Michel Wieviorka, Le racisme, une introduction ðParis,1998Þ, esp. chap. 1.
5 A similar historiographical problem regarding the use of the category “totalitarian”is posed in Pietro Costa, “Lo ‘stato totalitario’: Un campo semantico nella giuspub-blicistica del fascismo,” Quaderni fiorentini per la storia del pensiero giuridico mod-erno 28 ð1999Þ: 61–174, esp. 63, 64.

6 Barbara Sòrgoni,Parole e corpi: Antropologia, discorso giuridico e politiche sessualiinterrazziali nella colonia Eritrea: 1890–1941 ðNaples, 1998Þ, 255–56. See also AnnLaura Stoler,Carnal Knowledge and Imperial Power: Race and Intimacy inColonial RuleðBerkeley, 2002Þ.

7 See Claude Lévi-Strauss, Race et histoire ðParis, 1952Þ, in English translation asRaceand History ðParis, 1952Þ.

8 See, for example, the entries “Racialism,” in Andrew M. Colman, A Dictionary ofPsychology ðOxford, 2006Þ, 612; “Racialism,” in A Dictionary of Sociology, ed. JohnScott and Gordon Marshall ðOxford, 2005Þ; “Racism,” in Blackwell Dictionary of Po-



features, however. According to Pierre Bourdieu, the nucleus of all types ofracism is the “essentialist” logic that consists in objectivizing, through lan-

Race and Empire 803

guage, the diversities of various groups; and precisely in order to escape thatkind of logic, Bourdieu proposes the notion of social field as the real basis forrelations.9 Analyses that attempt to find an analytical unity in the phenome-non do not omit investigation of the diversity of forms and contents, at timesconcluding that a variety of types of racism can easily coexist in a given society:racists do not disdain syncretism.10 In contrast to the various proposed analysesof the different mechanisms of racism, a Marxist school influential in Italianhistoriography has theorized the reductio ad unum of the phenomena classifi-able under the term “racism.” Unlike those who seek a unitary definition of thephenomenon in order to study its concrete historical manifestations, the Italianschool seems also to accentuate the unitary nature of the manifestation and thecauses of racism ðand sexismÞ, which it invariably discerns in Marxist terms ofclass conflict and capitalistic accumulation.11

What I propose here is a concrete investigation of the various juridical andpolitical mechanisms of Italian racism. I intend to remain within a juridical-political discourse, without venturing into the social history of the phenome-non—which, where Italy is concerned, has for a number of years begun toattract the attention of scholars, for which I refer readers to Nicola Labanca’sexcellent synthesis.12

The study of juridical thought between the nineteenth and twentieth centuriesis particularly useful for a more general comprehension of Italian culture. Ashas been observed, the modern state is a product of the jurists.13 In Italy thejurist class made up the foundations of the new unified state,14 and juridical

litical Science, ed. FrankW. Bealey ðOxford andMalden,MA, 1999Þ. Pierre Bourdieu has

9 Pierre Bourdieu, Méditations pascaliennes ðParis, 1997Þ, 87, in English translationas Pascalian Meditations ðStanford, CA, 2000Þ; Bourdieu, Raisons pratiques; Ragioniratiche ðBologna, 1995Þ, 7ff. and 45ff.10 Michel Wieviorka, Le racisme: Une introduction, in Italian translation as Il raz-

ismo ðRome and Bari, 2000Þ, 34–36.11 For the theory of the unitary nature of the racist phenomenon, see Alberto Burgio,

Per la storia del razzismo italiano,” in Nel nome della razza, ed. Burgio, 19–29. Amongose who express perplexity at the comprehensive use of the category, see George M.redrickson, Racism: A Short History ðPrinceton, NJ, 2002Þ.12 Nicola Labanca, Oltremare: Storia dell’espansione coloniale italiana ðBologna,

002Þ, 369ff.13 Ernst Forsthoff, Rechtsstaat im Wandel ðStuttgart, 1964Þ, 77.14 From the liberal period on, the relative majority of members of parliament wereen of the law, a situation that continued in the Fascist era: see Fulvio Cammarano and

pointed out that the current use of the term “ethnicity,” a term steeped in “substantialist”logic, clearly conveys the traditional concept of race: Pierre Bourdieu, Raisons pratiques:Sur la théorie de l’action ðParis, 1994Þ, in English translation as Practical Reason: On theTheory of Action ðStanford, CA, 1998Þ.

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reflection constantly accompanied the political choices that were made, givingthem a scholarly grounding. That characteristic derived in turn from the para-

804 De Napoli

digm of juridical studies themselves, which, based on Pandectistics,15 were con-sidered “science,”16 in the root sense of the term, and, as such, were believedto be “neutral.”17 Sociology and humanistic culture in general have begun toreflect—with Michel Foucault and Pierre Bourdieu at the forefront of thistrend—on the “powerful effects” of a scientific discourse that sets up a hier-archy among forms of knowledge, on the role of “scientific” language in the“struggle for classification,” and in particular on the performative nature of thatlanguage.18 In the case of Italian colonialism, as we shall see, juridical cultureplayed a particularly fundamental role in this connection.With these premises in mind, in the pages that follow I shall attempt to pro-

vide an overall view of Italian colonialism in a comparative perspective, seek-ing to suggest some elements in a history that does not reduce racism to a uni-fied and unvarying phenomenon, but rather attempts to take into consideration,in a diachronic perspective, elements of both continuity and fracture.

“Thought Shall Win Africa”: Juridical Discourse on Race

at the Origin of Italian Colonialism

The “race” problem was posed explicitly from the very beginning of Italian col-onization during the formative years of the postunification state. In political de-bate, demographic discourse about a race that was expanding and needed newspace obscured all concrete discussion of the country’s problems, for which new

Maria S. Piretti, “I professionisti in Parlamento ð1861–1958Þ,” in Storia d’Italia ðTurin,1996Þ, vol. 10, I professionisti, ed. Maria Malatesta, 523–89, esp. 553, 554. See also

15 Pandectistics was a trend in nineteenth-century juridical culture that originated inGermany and spread throughout Europe; it renewed the study of law through a return tothe texts of Justinian’s Corpus Juris Civilis, particularly the book of Pandectae. See thecritical synthesis by Aldo Mazzacane, “Pandettistica,” in Enciclopedia del diritto ðMilan1981Þ, vol. 31.

16 On the theme of scienza, which is fundamental for framing the entire problem of thehistory of law in the construction of the Italian state in the ottocento, see AldoMazzacane“Scienza e nazione: Le origini del diritto italiano nella storiografia giuridica di fine ottocento,” in La cultura storica italiana tra otto e novecento ðNaples, 1987Þ, 115–32.

17 See Luigi Ferrajoli, La cultura giuridica nell’Italia del novecento ðRome and Bari1999Þ, 35–36.

18 See Michel Foucault, Il faut défendre la société: Cours au Collège de France ð1975–1976Þ ðParis, 1976Þ, in English translation as “Society Must Be Defended”: Lectures at theCollège de France, 1975–76, ed. Mauro Bertani and Alessandro Fontana, trans. DavidMacey ðNew York, 2003Þ, in Italian translation as “Bisogna difendere la società” ðMilan1998Þ; Pierre Bourdieu, Ce que parler veut dire: L’économie des échanges linguistiquesðParis, 1982Þ, in English translation as Language and Symbolic Power ðCambridge, 2008Þin Italian translation as La parola e il potere: Economia degli scambi linguistici ðNaples1988Þ, 121–31.

Francesca Tacchi, Gli avvocati italiani dall’Unità alla Repubblica ðBologna, 2002Þ.


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African colonies did not represent a solution.19 The rhetoric of publicity used asort of “social-imperialist harangue” ðas it was perspicaciously definedÞ to link

Race and Empire 805

the problems of Italian emigration with the need for colonies to be populated.20

A nationalism that was positivist, imperialist, and in some sense “popular” wasa “directional axis of bourgeois culture” in Italy.21 But how to legitimate thecolonial enterprise from a juridical point of view?It was Pasquale Stanislao Mancini, “one of the leading ideologists of the na-

tional movements,”22 who first described the connection between colonialismand racism in strictly juridical terms. A lawyer and a politician of the Left, as ajurist Mancini was considered from the mid-ottocento to be the founder of themodern doctrine of the right of nations,23 “the recognized foundation of a newEuropean public law.”24 He had the merit of clothing the concept of nation ðwhichhad been indefinite and discussed only on the historical-political levelÞ in a co-herent juridical garb by granting the nation “the monad of international law.”25

Recent studies have thrown light on the inexorability of this concept on the Eu-ropean level in the late nineteenth-century elaboration of international law.26

19 See Romain Rainero, L’anticolonialismo italiano da Assab ad Adua ð1869–1896Þ
ðMilan, 1971Þ, 183.
20 “The idea of somehow creating new decompression valves by means of the ac-quisition of a colonial empire, hence of protecting social order from the wave of un-deroccupied proletarians, met with a certain success and a vast popularity. This social-imperialist harangue obviously also constituted a moral alibi in connection with a broadpolicy of colonial acquisition”: Wolfgang J. Mommsen, “Società e politica nell’etàliberale: Europa 1870–1890,” in La trasformazione politica nell’Europa liberale, 1870–1890, ed. Paolo Pombeni ðBologna, 1986Þ, 32.

21 Silvio Lanaro, Nazione e lavoro: Saggio sulla cultura borghese in Italia 1870–1925ðVenice, 1979Þ, 85.

22 Sergio Romano, “L’ideologia del colonialismo italiano,” in Fonti e problemi dellapolitica coloniale italiana: Atti del convegno Taormina-Messina, 23–29 ottobre 1989,2 vols. ðRome, 1996Þ, 1:22.

23 Pasquale S. Mancini, Della nazionalità come fondamento del diritto delle genti:Prelezione al corso di diritto internazionale e marittimo pronunziato nella R. Universitàdi Torino dal professore Pasquale Stanislao Mancini nel di 22 gennaio 1851 ðTurin,1851Þ, later reprinted in Pasquale S. Mancini, Diritto internazionale: Prelezioni con unsaggio sul Machiavelli ðNaples, 1873Þ.

24 Romano, “L’ideologia del colonialismo italiano,” 22. See also the observations ofthe jurist Francesco Ruffini, who, during World War I, thinking of the postwar reor-ganization, saw in Mancini’s juridical doctrine of nationality “the only article of sci-entific exportation that our literature of public law has produced during the course ofthe ottocento”: Francesco Ruffini, “Nel primo centenario della nascita di PasqualeStanislao Mancini,” Nuova Antologia ðMarch 16, 1917Þ: xi, quoted in “Pasquale Sta-nislao Mancini,” in Dizionario biografico italiano, henceforth abbreviated as DBI.

25 See Pietro Costa, Civitas: Storia della cittadinanza in Europa, 4 vols. ðRome andBari, 2001Þ, vol. 3, La civiltà liberale, 211–13.

26 See Luigi Nuzzo, “Disordine politico e ordine giuridico: Iniziative e utopie deldiritto internazionale di fine ottocento,”Materiali per una storia della cultura giuridica2 ð2011Þ: 319–37.



In his doctrine of nationality Mancini attributed great importance to race asan “expression of an identity of origin and of blood” and as a genuinely con-

806 De Napoli

stitutive element of the nation. From this point of view, he could even statethat it is by membership in a race that “the Nation most resembles the Family.”27

In the culture of the age of the Risorgimento and the late nineteenth century,the term “nation” bore strong connotations of the idea of a community of de-scendants.28 Mancini’s metaphor of the family confirms that reading. Racialunity was a substratum “of physical and moral qualities that one has in commonwith one’s own brothers”; even more, it was “the most tenacious link among in-dividuals of the same extraction in comparison to those who are extraneous toit.”29 To be sure, as has been observed, the racial element counted in Mancini’sidea of nation, but within a vision where “the consciousness of nationality,” asentimental value, was predominant.30

Concerning the colonial enterprise, in the 1880s Mancini stated that it wasjustified morally by the need to bring civilization to the African populations andto join with the generous works of the other European nations, but he also con-sidered it to be justified juridically. Speaking of colonial domination, he stated:“That relationship is just as legitimate in international society as the relationshipthat is called tutelage is legitimate in private law: tutelage of those who are in-capacitated by age, or by weakness of mind; similarly, it is not incompatible withthe principle of the independence and the equality of all human creatures.”31

This argument proposes a parallel between institutions of private law andinstitutions of public law, and it intimates that the African populations shouldbe considered inferior in that they were less advanced in evolution or evenmentally incapacitated. The image of colonized peoples as childish was fairlywidely diffused in fin de siècle European culture.32 The framing paradigm wasthat of Darwinian evolution, and the rhetoric was that of the burden:33 colo-nialism was a weight necessarily borne by the civilized peoples.After long service in Parliament, working above all in the fields of penal law

and reform of the law codes, Mancini served twice as Minister of Foreign Af-fairs in the Depretis government. This led, in 1882, to his inauguration of Italy’s

27 Mancini, Della nazionalità come fondamento del diritto delle genti.28 Alberto M. Banti has devoted a number of studies to the racial aspect of the

nineteenth-century concept of nation: see Alberto Mario Banti, La nazione del risor-gimento: Parentela, santità e onore alle origini dell’Italia unita ðTurin, 2000Þ; andBanti, “La nazione come comunità di discendenza: Aspetti del paradigma romantico,”Parolechiave 25 ð2001Þ: 115–41.

29 See Atti del Parlamento italiano, 1887, Discussioni, 4:4295.30 Costa, Civitas, vol. 3, La civiltà liberale, 211–13.31 Mancini, Della nazionalità come fondamento del diritto delle genti, 23.32 See Lévi-Strauss, Race and History.33 Obviously, I am referring to the later and famous poem of Rudyard Kipling, “The

White Man’s Burden” ð1899Þ.



colonial foreign policies.34 To those who accused him of betraying his beliefin the right of nations, Mancini responded that in Africa there were no nation-

Race and Empire 807

alities and that the peoples of Europe had a mission of peaceful civilization.35

A later speech in Parliament reflected a similar discourse: “How can we closeour eyes to this generous competition, which is now manifested among all thegreat nations of Europe, to take part in a sort of common and joint enterpriseof world-wide civilizing; in a high educational mission of such a large part ofthe human species that lives in the vast African continent?”36 It was Italy’s dutyto join the other European nations in a “highly worthy crusade of civilizationagainst barbarity.”37

In that same period, Third Republic France was at the peak of its celebrationof its mission civilisatrice, and according to Alice Conklin the very concept ofcivilization was particularly French.38 Thus Mancini must certainly have had inmind the imperial policies of lands north of the Alps and, in particular, theirimperial doctrine regarding African subject peoples, who must be elevated bothmorally and materially.The thought of this great Italian jurist is useful for an understanding of some

aspects of the culture of an entire epoch, as his theory used a logical and linearline of argumentation to bind together concepts such as “race” and “nation” thatwere open to different interpretations and were potentially undefined juridi-cally. Making the nation the subject of international law and giving it a coher-ent juridical expression within a general theorization of the relevant materialrepresented a genuine qualitative advance, however.Giovanni Bovio, an intellectual and a jurist from Puglia, a philosopher of a

democratic and enlightenment formation, a man involved in Freemasonry andin liberal causes, and the ideologist of the “evolutionist” Republicans39 and theextreme Left, seemed to stand on the other side in the debate concerning thelegitimacy of the Italian colonial enterprise. Bovio arrived at the University ofNaples in 1872, where he became “one of the most beloved teachers.”40 Con-cerning his involvement in the debate on Italian colonialism, which was livelyeven in Radical circles,41 one brief text, as significant as it is little known, stands

34 For biographical details, see “Pasquale Stanislao Mancini” in DBI.35 See Roberto Battaglia, La prima guerra d’Africa ðTurin, 1958Þ, 147.
36 Camera dei Deputati, Atti Parlamentari, Legislatura XV, Discussioni, tornata del
27 gennaio 1885.37 Ibid., Legislatura XVI, Discussioni, tornata del 30 giugno 1887.38 Alice L. Conklin, A Mission to Civilize: The Republican Idea of Empire in France

and West Africa, 1895–1930 ðStanford, CA, 1997Þ, 2–3.39 A group that opposed the intransigents and relied much on the Rivista repubblicana

of Alberto Mario and Arcangelo Ghisleri.40 See Alfonso Scirocco, “Giovanni Bovio,” in DBI.41 Raffaele Colapietra, “Correnti anticolonialistiche nel primo triennio crispino

ð1887–1890Þ: L’atteggiamaento di Giovanni Bovio,” Belfagor 9 ð1954Þ: 560–74.



out: Bovio’s 1887 inaugural lecture at the Regia Università di Napoli, “Il dirittopubblico e le razze umane.”42 According to Bovio, the better races transform

808 De Napoli

or eliminate the worse ones, which, without the former, would never havea chance to “elevate themselves to science and enter into the atmosphere ofuniversal history.” Civilization has the right to expand not only with sciencebut also with violence, because there is no recognizable “right to barbarity.”43

While it is true that he proposed a vision of history in which the struggle be-tween races was normal, Bovio saw the goal of that process as the transforma-tion of those inferior races. The violence of the superior races over the inferiorones, in fact, was one means for the betterment of peoples.44 Social Darwinismis evident in the ideas that history shows that “the law of selection takes placeamong individuals and among races, the best of which prevails”45 and that theCaucasian type prevails everywhere just as “thought prevails.”46

Bovio considered the inferiority of certain races to be a scientific datum, tothe point that he presented non-Caucasian races as prehistoric and even ex-trahistoric types. Such types were not able to produce ius humanum, as theywere not thinking beings; and “those who think are free; those who do not,serve.”47 Assertions of the sort were typical in a period in which the existenceof local civilizations was denied, especially in Africa, placing the populationsto be dominated outside of history. Bovio’s thought was thus firmly locatedwithin an ethnocentric climate in which, to borrow a phrase from Claude Lévi-Strauss, people preferred “to reject out of hand the cultural institutions—eth-ical, religious, social or aesthetic ½—� which are furthest removed from thosewith which we identify ourselves.”48

Bovio justified colonization as the bearer of thought, law, and civilization. Inanticipation of objections, however, he outlined the arguments that could be

42 See the quotation from Bovio given in Labanca, Oltremare, 58.43 Giovanni Bovio, Il diritto pubblico e le razze umane ðNaples, 1887Þ, 7–8.
44 On Bovio’s philosophy of history, which was based on a mathematical determi-
nation of historical periods, see Giovanni Bovio, Corso di scienza del diritto ðNaples,1877Þ. See also Scirocco, “Giovanni Bovio,” in DBI.

45 Bovio, Il diritto pubblico e le razze umane, 8. It was Romolo Prati who noted theDarwinian nature of Bovio’s justification of Italian colonial aggression: see Romolo Prati,“Darwin e Saati,” Cuore e critica ðMarch 1887Þ: 40ff., quoted in Rainero, L’anticolo-nialismo italiano, 171. On the ambiguity of the relationship between Darwinism andracism, see George L. Mosse, Toward the Final Solution: A History of European RacismðNew York: Fertig, 1978; Harper & Row, 1980Þ, in Italian translation as Il razzismo inEuropa dalle origini all’olocausto ðMilan, 1992Þ, 80–82, where Mosse stresses thatDarwin was not personally racist and that his thought was “simplified” by racists.

46 Bovio, Il diritto pubblico e le razze umane, 9.47 Ibid., 25.48 Lévi-Strauss, Race and History, 12. See, in particular, his explanation of “false

evolution,” 14. On the Italian press of the time, see Michele Nani, Ai confini dellanazione: Stampa e razzismo nell’Italia di fine ottocento ðRome, 2006Þ, 49.



opposed to his reasoning: a people that had just attained liberty from foreigndomination would not have the right “to offend the right of the other nations,

Race and Empire 809

which are of men and not of beasts.” To this Bovio responds that “nation trulyresides where there is a State and where there is movement of thought.” Hecites an example, not by chance referring to Ethiopia, already at the time thetarget of Italian expansionist aims: “The despotism of a Negus indicates masterand subjects, not State and nation. Or will you deny the rights of expandingcivilization to admit the right of anthropophagy and a common Venus?”49

Colonialism brought betterment to subjected peoples, according to one of thetopoi of colonial ideologies, which meant that the right to expansion bore con-notations of paternalism. Ideas of the sort were similar to those expressed notlong after regarding the British Empire by Lord Cromer, who stressed that theempire was for its subjects, and not the subjects for the empire.50 For Bovio,from the juridical point of view colonialism was a mission for the expansion oflaw against savage customs. In his opinion, in fact, there could be no “right tobarbarity,” according to an expression that he took the opportunity to use evenon the occasion of a parliamentary discussion of Assab.51 The total lack of lawin the black continent—that is, of the law as constructed through the long cen-turies of history in Western Europe52—and of the nation, the subject creator ofthat law, was the foundation of the right to expansion of the “better race.” In thefinal analysis, this was an argument that became juridical on the level of in-ternational law: for Bovio, in fact, there existed only a public law, “that of civ-ilization that pours forth.” Outside of that there existed only “pretenses of law,”which in concrete terms became iniquities, “iniquitates iuris.”53 Those pretenseswere derived from abstract egalitarian concepts. At this point the orator directlyaddressed Africa: “And you, enormous Africa, black Africa, black within your-self and before civilization, even you will open up before the thought that pressesyou and searches you, the thought that draws vigor from resistance and does notretreat before the trial of those centuries that, succeeding one another, hid youall the more from searchers.”54 His reasoning concludes on a poetic note: “Oh,thought will win, will win over Africa, will fly over the desert, sit amidst theunknown and examine it thoroughly, and will seem both formidable and merci-ful. Do not say that it will take revenge—ignoble word—say that it will win, that

49 Bovio, Il diritto pubblico e le razze umane, 9.
50 Robert L. Tignor, “Lord Cromer: Practitioner and Philosopher of Imperialism,”
Journal of British Studies 2 ð1963Þ: 142–59, esp. 145.51 See Battaglia, La prima guerra d’Africa, 331.52 For a deconstruction of the conception of the universality of the European historical

experience, see the now classic Dipesh Chakrabarty, Provincializing Europe: Postco-lonial Thought and Historical Difference ðPrinceton, NJ, 2000Þ.

53 Bovio, Il diritto pubblico e le razze umane, 12.54 Ibid., 10.



its victory is justice, is redemption, and that it will carry history to where thereis legend, the thinker to where there is the savage, the school to where there is

810 De Napoli

fetishism.”55

In the expansive impulse of thought, violence was an acceptable accidentbecause “when the effects are good, science justifies the causes and pardons theshocks that produce sparks.” On the other hand, force should not be used as anend in itself but should have as its purpose a project of civilization: “Force forthe sake of force is violence; force for civilization is reason.”56 The inferiorraces had no right to political independence because they were not capable ofproducing thought and law.Regarding the problem of the use of violence, the scholar of international law

Enrico Catellani disagreed with these ideas, proposing instead a humanitarianvision of colonialism that excluded violence in the name of the “right to life andto property of every human being, in every corner of the earth.” However, evenCatellani was in favor of colonial expansion, because imperialism led to oneglobal civilization, and he agreed with Mancini and Bovio on the juridical prem-ise that “the right of nationality is not for all.” Journals north of the Alps dis-cussed the same topics of the legitimacy of the use of violence in the goal ofbringing civilization to lands in which only fanaticism and brigandage reigned.Even if “spilled blood” proved to be necessary, the Revue des Deux Mondesasserted, “who could say this was a poor use of force?”57

Africans without a Nation, Italians without a State

To return to Bovio: at the end of his inaugural address in Naples, after havingjustified the Italian colonial enterprise in theory, he surprisingly declared him-self against it. In Italy, in fact, the church, despite the recent achievement ofItalian unification, kept up constant interference in public affairs, to the pointthat no one could claim that the process of the formation of the Italian state hadbeen completed. This made the task of exporting civilization still unthinkable.Arguments of this sort fitted in with Bovio’s anticlerical intellectual historywhen he took part in the “anti-council” of Naples in 1869. As a philosopher,Bovio harshly criticized the impotence of the founders of the liberal state wherethe church was concerned: the founders of the national state should “oppose tothat power our public law in all its grandeur and dignity.” But on the contrary,“they hesitated,” and the result was a mutilation of internal law that produceda return to being like “children before the ancient power of Rome.”58 We see

55 Ibid., 10–11.56
Ibid., 8.57 Conklin, A Mission to Civilize, 13. The Catellani quote earlier in the paragraph is
from Enrico Catellani, Le colonie e la Conferenza di Berlino (Turin, 1885), 40.58 Bovio, Il diritto pubblico e le razze umane, 19.



here a return to the theme of the child-people, a category under which Bovio,unlike Mancini, inscribed Italians as well. Ancient Rome was both the model

Race and Empire 811

and the point of comparison that served to disqualify contemporary politicalconditions: “Superstrong Rome, because Rome of Law . . . that Rome wasdistant from this one not only in time but also in soul and intellect; that onewas as if mistress of all parts of law, even of colonial law, a not small part ofRoman public law. . . . The colonizing people par excellence, the people thatfirst established the colonial science of law, was the juridical and political peo-ple—the Roman people.”59

Given the distance between the Italy of Bovio’s time and the Roman mind,the colonizing mission of postunification Italy obviously faced an “obstacle notyet surpassed.”60 Exporting civilization was in fact possible only “when a fullyachieved country is involved.”61 Similar arguments, founded on the distinctionbetween country and state and based on the theme of the right to expansion,were widespread in Anglo-Saxon publicity regarding empire in the late nine-teenth century. One example may be found in the theories of John R. Seeley,according to whom colonialism is justified as the expansion of a state that is “theNation” and “not the Country.”62

In short, for Bovio colonialism was in itself juridically licit and even neces-sary, but it was not so for Italy, which still had to become a state. From thetheoretical viewpoint, however, colonialism was perfectly justified and the cen-tral point of the argument for it was clearly racist.In his Neapolitan inaugural address, Bovio described a clearly sexualized im-

age of Africa as an enormous void, one that thought, which “presses and delvesinto,” was to fill and fecondate—an immense black space that must be openedup to the domination of superior Europeans, represented metaphorically as“thought.” That image clearly reflected a widely diffused sentiment encouragedby the propaganda of the colonialist movement. A number of years later themonthly L’Oltremare, which in 1927 had taken the place of the Rivista colo-niale as the organ of the Fascist Colonial Institute,63 showed Africa on its coveras an enormous unexplored void, interrupted here and there by signs of ancientcivilizations and by palm trees and ferocious and exotic animals. A fascinationfor the “frontier” made the African colonies increasingly appealing for “mass

59
Ibid., 13–14.60 Ibid., 20.61 Ibid., 13.62 John R. Seeley, The Expansion of England: Two Courses of Lectures ðLondon:
Macmillan, 1883; Chicago: University of Chicago Press, 1971Þ, 49.63 On the Fascist Istituto Coloniale, see Alberto Aquarone, “Politica estera e orga-

nizzazione del consenso nell’età giolittiana: Il Congresso dell’Asmara e la fondazionedell’Istituto coloniale italiano,” Storia contemporanea 1, 2, and 3 ð1977Þ: respectively,57–119, 291–334, 549–70.



consumption.”Moreover, the attraction to the exotic was not politically neutral:it accompanied domination.64 Thus the image that Bovio used expressed a taste

812 De Napoli

for the exotic that lasted into the Fascist era.There were jurists who supported the rights of nations and, at the same time,

supported colonialism; there were also intellectuals who saw the legitimation ofa policy of dominion as a problem but at the same time publicized the principleof national self-determination. Mancini and Catellani justified Italian colonial-ism by arguing that the Africans have no nation; Bovio seemed to oppose co-lonialism by stating that the Italians have no state. When the two positions arecarefully analyzed, it is clear that their rhetorical strategies differed but weremuch more juridical than they seem at first glance.Mancini and Bovio have been presented as contradictory personalities.65 It

is true that, for example, Bovio was bitterly criticized in Republican circles.66

In the late nineteenth century, however, when the construction of the unifiedstate had been achieved, many liberal thinkers ðand even democrats and rad-icalsÞ declared themselves favorable to the colonial enterprise. We need to re-member that an aversion for a hierarchized vision of the relations among peo-ples is, in the final analysis, a recent, twentieth-century acquisition springingfrom a progressive view of culture. A historiographic debate that began someyears ago has focused on the dichotomy between the nationalism of the earlyottocento, which fought against oppression and for liberal constitutions, andthat of the end of the century, which turned toward aggressive and chauvinis-tic policies—or, to put it in Eric J. Hobsbawm’s terms, the dichotomy betweenthe German and the French national models.67 The cases discussed here showthat, according to the biographies of many prominent figures of the time, thatdichotomy was not perceived. To be sure, national patriotism was transformedinto racial pride, as Catellani noted,68 but this was felt to be a natural develop-ment. Moreover, with the achievement of unification, was not Italy moving to-ward becoming absorbed in the historic flux—in the “generous competition,”as Mancini put it—of the great nations of Europe, all of which were imperi-alist?The contradictory nature of Italian colonialism after the Risorgimento seems

in all ways similar to that of Republican France of the same period, beginningwith the consideration that for the imperialistic impulse founded on its mission

64 See Labanca, Oltremare, 155–57.65
Romano, “L’ideologia del colonialismo italiano,” 21.66 See Arcangelo Ghisleri, Le razze umane e il diritto della questione coloniale
ðBergamo, 1888Þ, an extract from the review Cuore e critica, and Battaglia, La primaguerra d’Africa, 331–39.

67 See Federico Chabod, L’idea di nazione, ed. Armando Saitta and Ernesto SestanðBari, 1961Þ; Eric J. Hobsbawm,Nations and Nationalism since 1780: Programme,Myth,Reality ðCambridge, 1990Þ.

68 Enrico Catellani, “Gli imperialismi d’oggi e l’equilibrio politico del domani,”Rivista coloniale 11 ð1906Þ: 350ff.



civilisatrice, “the French managed to obscure the fundamental contradictionbetween democracy and the forcible acquisition of an empire,” as Conklin ar-

Race and Empire 813

gues.69 The question can be read differently, however: for the French, whoheld their acquisitions regarding individual rights to be the expression of a uni-versal ethics, it was completely natural to consider themselves “masters of theearth” and guardians of “superior notions,” as Jules Ferry stated to Parliamentin the early 1880s.70 Regarding Tunisia, a French colony from 1881 on, the of-ficial doctrine that supported the legal structure of the protectorate stated thatthe Bey was free precisely thanks to the French protectorate, which raises thequestion of the type of liberty constructed by European liberalism and by in-ternational law throughout the centuries.71 For many in Italy as in France, de-mocracy and imperialism were not felt to be contradictory terms. The distinc-tion between countries ðor peoplesÞ and states, in an evolutionary framework,was totally functional from that viewpoint. Moreover, even if in Great Britainsome liberals were opposed to imperialism, in many respects the contradictionbetween imperialism and liberalism had been resolved: the “protean ideology”of British imperialism occupied a permanent space in liberal ideology and dis-course regarding the “imperialism of free trade,” even in its various interpreta-tions.72 Even the unease of the liberals after the occupation of Egypt was resolvedwithin the liberal ideology with an appeal to the classic themes of progress anda guarantee of foreign interests. For this reason, many English liberals saw the1880s as a watershed moment.73

Recent works have stressed the general ambivalence of European liberalismin its attitude toward rights and colonialism, an attitude that can also be ex-plained in psychoanalytical terms.74 The European framework suggests not con-centrating on judging contradictory individual figures or particular policies butrather discerning a more general trend in European liberalism that originatedfrom some of its internal premises. This is the much more complex question of“liberal racism.”

Liberal Racism: The Myth of Progress and Differentialist Practice

What law should pertain to natives? That question lay at the center of debateamong the experts on colonial law beginning in the late nineteenth century. TheItalian jurists refused the principle of one justice, which they considered an ex-

69 Conklin, A Mission to Civilize, 2.70 Ibid., 13.
71 Nathaniel Berman, Passion and Ambivalence: Colonialism, Nationalism, and In-
ternational Law ðLeiden and Boston, 2012Þ, 416–17.72 John Darwin, The Empire Project: The Rise and Fall of the British World-System

ðCambridge, 2009Þ, 305–6.73 Ibid., 104–5. See also the classic John Roach, “Liberalism and the Victorian In-

telligentsia,” Cambridge Historical Journal 13, no. 1 ð1957Þ: 58–81.74 Berman, Passion and Ambivalence, 412ff.



pression of the French Enlightenment.75 That orientation was based on a well-known decision of the French Cour de Cassation of 1865 that had asserted, as

814 De Napoli

a principle, that legislation follows the flag: this was the criterion of the terri-torial nature of juridical norms according to which all individuals subject tothe same state power were subject to the same laws.76 In ideal terms, that sys-tem was a consequence of an explicitly assimilationist ideology: the true aimof French colonial policy was to shape a hundred million citoyens.Renzo Sertoli Salis explains how, precisely in reaction to Enlightenment egal-

itarianism, the Italian colonial juridical system sought inspiration in a differentand differentialist criterion based on the principle of “respect for indigenouslaw, with the one reservation of colonial public order.”77 As he notes, “It wasprecisely in the final years of the last century that a lively reaction occurredagainst those methods—founded, as has been stated, on principles of the unityof the nature of man—that tended to bend the entire globe under the samepolitical, administrative, and civil regime.”78

One model for the Italian doctrine was the Congrès International de Soci-ologie Coloniale held in Paris in 1900.79 Affirming the need for knowledgeof and respect for the various indigenous systems of law, that congress pro-moted a differentiation between the codes and jurisdictions intended for citi-zens and those intended for subject populations, in particular stressing the needfor “drawing up a Penal Code for the use of the indigenous population.”80

According to Sertoli Salis, the Paris congress signaled the decline of the as-similationist theory. Even Mariano D’Amelio, perhaps the most brilliant ofthe jurists trained in the colonies, execrated the French example. Commentingon a provision in the Eritrean Civil Code of 1909 stipulating that when a nativewoman marries a citizen she acquires citizenship, but when widowed she re-turns to subject status, D’Amelio contended: “In this way Italy remains immuneto the error that France now laments regarding the assimilation of colonialsubjects as citizens, which reached the point of automatically creating in its

75 Renzo Sertoli Salis, La giustizia indigena nelle colonie ðPadua, 1933Þ, 3.76
Luciano Martone,Giustizia coloniale: Modelli e prassi penale per i sudditi d’Africa
dell’età giolittiana al facismo ðNaples, 2002Þ, 6.77 Sertoli Salis, La giustizia indigena nelle colonie, 5.78 Ibid.79 Although the first theorization of the concept of “assimilation” goes back to the time

of the French Revolution, a fundamental text is Arthur Girault, Principes de colonisationet de legislation coloniale ðParis, 1895Þ. The 1900 Congrès was fundamental for theelaboration of French policies, even though some protested that those who supported as-similation were unable to agree among themselves about what should be meant by theterm. On these questions, see Martin Deming Lewis, “One Hundred Million Frenchmen:The ‘Assimilation’ Theory in French Colonial Policy,” Comparative Studies in Societyand History 2 ð1962Þ: 129–53.

80 Martone, Giustizia coloniale, 6.



colonies a new body of Frenchmen about whom subsequently ½France� did notseem satisfied.”81

Race and Empire 815

Similarly, for the great jurist Santi Romano, one of the most influential menof law in Italy in the early novecento, the impossibility of assimilation was veryclearly based on race. According to him, the need to distinguish between cit-izens and subjects was “almost indispensable whenever the indigenous peopleare of a race different from the inhabitants of the metropolis,” and making thatdistinction was in the interests of both the colonizing country and the indige-nous population itself.82

The topic of racial diversity formed the core of differentialist argumentsand led to an evaluation of the “civilization gap” on which the legitimation ofdomination and the separation of juridical space in the colonies were based.83

The colonial judge Ranieri Falcone spoke explicitly in his Disegno di codicepenale of the need for a “racial code” to safeguard “our ethnic and political su-premacy.”84 Falcone held a law valid for all to be inconceivable because everypeople—every race—had to have regulations that were born of its particularhistorical experience and that were most appropriate for it. An insistence onracial difference was the legitimating discourse in the organization of juridi-cal matters in the colonies. For the jurists who commented on and sought todirect Italian colonial policy, reasoning of the sort adopted assumed the pa-ternalistic rhetoric of “respect of indigenous juridical traditions.”85 The actualsituation was quite different. One extreme sign of the contradiction betweenthe declaration of respect for indigenous juridical traditions and the actual ef-fects of differentialism was the reintroduction of corporal punishment and deathsentences in the colonies—for natives alone, of course. This is what made itpossible, in a liberal age, to conceive of “a penal system with strongly racialcharacteristics”86 in homage to the principles of the positive school of penal

81 Mariano D’Amelio, “Colonia Eritrea,” in Enciclopedia giuridica ðMilan, 1913Þ,
vol. 3, pt. 2, 1,057.
82 Santi Romano, Corso di diritto coloniale impartito nel R. Istituto di scienze socialiC. Alfieri di Firenze ðRome, 1918Þ, 1:124–25. See also Carlo Bersani, “Forme di ap-partenenza e diritto di cittadinanza nell’Italia contemporanea,” Le carte e la storia 1ð2011Þ: 60–61.

83 Pietro Costa, “Il fardello della civilizzazione: Metamorfosi della sovranità nellagiuscolonialistica italiana,” Quaderni fiorentini 33–34 ð2004–2005Þ: 173.

84 Falcone, quoted in Martone, Giustizia coloniale, 24.85 Luciano Martone was thus quite right when he stressed, quoting the jurist Ernesto

Cucinotta, that “the always declared and always violated respect of indigenous lawwas . . . the constant rule of a system of racial separation, which was presented, how-ever, ‘not as an expression of the law or power of the empire but rather as a faithful echoof the needs and demands of the new road of progress and the civilizing mission of theState’”: Martone, Giustizia coloniale, 24, note.

86 Ibid., 30.



law.87 In 1910, one exponent of that school, Raffaele Garofalo, insisted on theneed for a penal code that would establish differentiated penalties because of

816 De Napoli

the racial differences that existed in the colonies: “It was really not possiblenot to take into account the effect of a given penal threat on people who haveideas, sensibilities, and traditions quite different from our own, so that one pen-alty or another, either in its nature or its severity, might turn out to be totallyinefficacious or else disproportionate or intolerable for the indigenous popula-tion.”88

According to Ferdinando Martini, the first civil governor of the colony ofEritrea, the death penalty was the only punishment capable of deterring the grav-est sorts of blood crimes. Obviously, the argument applied only to natives. More-over, for the indigenous population imprisonment would have been more in-supportable than capital punishment, which thus represented a lesser penalty.In differentialist juridical discourse there was a full affirmation of the su-

periority of European law—that is, of the law of the colonizing nations—ac-companied by an assertion of the “ethnicity” of that law, which made it inap-plicable to the inferior African populations. This was an implicit renunciationof the juridical civilizing mission of the Italian people, inspired by the mythof Imperial Rome, that held the exportation of Roman law—that is, Europeanand continental civil law—as the first of civilizing works. That very rhetoricalconstruction had of course played a major role in the jurists’ justification of thecolonial enterprise.89

Differentialist juridical discourse ended up contradicting the idea of the ju-ridical civilizing mission, however.90 It was claimed that Italy had a juridicalmission, but when the death penalty and corporal punishment were institutedonly for natives, it signaled the failure of that mission. Differentialism, imbuedas it was with European ethnic presuppositions, was the very opposite of theidea of that mission as it had been elaborated in France. Renunciation of the“juridical mission,” in my opinion, was one of the most important distortions91

of a colonial law that was characterized structurally by both a tendency to es-tablish limits and unbridgeable distances and by the need to incorporate the

87 See Maria L. Sagù, “Sui tentativi di codificazione per la colonia Eritrea,” Clio 4
ð1986Þ: 601.
88 Raffaele Garofalo, “Il codice penale della colonia Eritrea,” Rivista coloniale, anno 4ð1909Þ: 134.

89 See Guido Alpa, La cultura delle regole: Storia del diritto civile italiano ðRomeand Bari, 2000Þ, 266.

90 See Luciano Martone, Diritto d’oltremare: Legge e ordine per le colonie del Regnod’Italia ðMilan, 2008Þ, 4–5.

91 For general reflections on the distortion of European law in the colonies, see Nani,Ai confini della nazione, 49.



colonial subjects themselves, with whom the dominators shared a common ju-ridical space that, consequently, had to be differentiated.92

Race and Empire 817

The jurists could not avoid sensing a contradiction between the juridical civi-lizing mission and the differentialist choice. They sought some sort of mediationbetween the two and, once again, they found it in the evolutionist paradigm.Ranieri Falcone, speaking before the Colonial Congress of Asmara of 1905,defended a dualistic choice. He argued that “the differentiation of the law . . .will do much to attenuate the difficulties of the colonial legislator, whose duty itis to take into account the variety of customs, religions, institutions, and tradi-tions of the multiform indigenous people. The action of time, and then that ofthe men whose duty it is to govern or to administer justice, will eventually re-move all dualism between metropolitan law and indigenous law, thanks to theunification of the laws.”93

It was precisely the elaboration of the five colonial codes—in which Falconeparticipated—that hastened “Italy’s civilizing task.”94 What was needed, ac-cording to Falcone, was a “gradual process for the juridical betterment and theeducation of an inferior human species.” Race played a role in evaluating thatinferiority, as did ethical and religious convictions and the varying levels ofintelligence of the peoples who made up the mosaic of the Eritrean population.The judges Ranieri Falcone and William Caffarel stressed the need for a grad-ual evolution of juridical civilization, and they expressed hope that the Eritreancolony would have a legislation of its own, “different, where necessary, fromthat of the motherland.” They did not fail to note, however, the colonizers’ duty,“with slow and gradual progress, to evolve indigenous awareness toward ourmore complex and more elevated concepts of law.”95

The natives of the colonies occupied a position on the evolutionary scale—“along staircase with many steps”—that was inferior to that of Europeans, but noone denied that natives were capable of rising on that scale.96 Moreover, sug-gestions coming from English nineteenth-century liberalism did not exclude apath of civil and juridical development of the Indians that would lead them toindependence.97 Like Mancini, Falcone and Caffarel followed evolutionist con-cepts in picturing the Africans as children in comparison with Europeans, whowere adults. Liberal colonialism belongs within the framework of a philosophy

92 See Sandro Mezzadra and Enrica Rigo, “Diritti d’Europa: Una prospettiva post-
coloniale sul diritto coloniale,” inOltremare: Diritto e istituzioni dal colonialismo all’etàpostcoloniale, ed. Aldo Mazzacane ðNaples, 2006Þ, 175–204, esp. 178–80.
93 Atti del Congresso coloniale italiano in Asmara, 122.94 Ibid., 123.95 Ibid., 133.96 Ibid., 121–22.97 Mezzadra and Rigo, “Diritti d’Europa,” 178.



of history that believes in progress, “one of the most frequented crossroads ofthe period.”98 Juridical differentiation was to be temporary, in the expectation

818 De Napoli

that the natives would progress, and that meant that progress had to be gradual.The year 1911 brought the war in Libya. Contemporary public opinion was

stampeded by an increasingly intense press campaign praising the resources ofthat North African land but also founding colonial aspirations on a need toredeem the nation after the defeat of Adua in 1897. The Pascolian myth of the“great proletariat” that was to launch itself into the colonial enterprise was im-bued with Socialist-leaning rhetoric that implied that the colonies would bean outlet for a poor but prolific land and that Italian colonialism was a demo-graphic colonialism, different from the plutocratic imperialism of both Franceand England.99 Given that context, in the second decade of the twentiethcentury the war in Libya provided juridical culture with an opportunity for acolonialist discourse founded on the exaltation of blood and race.100 In tradeunion circles Sorel’s pronouncements, drawn from the myth of the “revolu-tionary war,” began to circulate. The “workers’ imperialism” that they pro-posed became one of the ideological premises of Fascism.101 Historians havediscussed the true consistency of an “Italian model” of colonialism, at timeslocating the particular motivation of Italian colonialism in a search for internalprestige.102

To summarize colonialism in the age of liberalism from the viewpoint ofjuridical ideology: in general, the jurists who justified Italian expansion force-fully insisted on the idea of the civilizing mission, which seems to me to repre-sent a principal theme that returns in an entire publicity campaign bridging thenineteenth and twentieth centuries, along with the topic of a search for new landsfor emigrant workers. That insistence brought Italy closer to France, the countrythat best represented the mission civilisatrice and an imperial grandeur that Ital-ians could observe close at hand. Italy spelled out the idea of the civilizing mis-sion differently from the French, however, and Italian intellectuals criticizedFrance for its policies of assimilation. Italians found it inconceivable to make“citizens” of subjects in any manner whatsoever. A civilizing mission withoutassimilation might seem to be one of the paradoxes of the colonialist ideology inItaly. From the point of view of “indigenous policies,” in fact, Italians seemed

98
Costa, “Il fardello della civilizzazione,” 174.99 Giovanni Pascoli, La grande proletaria si è mossa ð1911Þ, reprinted in Pascoli,
Patria e umanità: Raccolta di scritti e discorsi ðBologna, 1923Þ. See also Labanca,Oltremare, 376–80.

100 See Giulio Cianferotti, Giuristi e mondo accademico di fronte all’impresa diTripoli ðMilan, 1984Þ.

101 See Zeev Sternhell, Naissance de l’idéologie fasciste ðParis, 1989Þ, and The Birthof Fascist Ideology ðPrinceton, NJ, 1994Þ, 163–77.

102 See Nani, Ai confini della nazione, 46; Labanca, Oltremare, 473ff.



to express a much greater admiration for the British Empire, and particularly forits pragmatic ability to dominate and administer. Even if France was the empire

Race and Empire 819

that Italians implicitly had in mind, they held the British model to be the oneto imitate. According to Mariano D’Amelio, writing in 1913, the British rep-resented “modern Romans,”103 and in fact the English too often defined them-selves as “new Romans.”104 In two essays published in the early twentieth cen-tury and reprinted on several occasions, the Irish jurist James Bryce, formerUnder-Secretary of State for Foreign Affairs under Gladstone in the 1880s, pro-posed a close political and juridical comparison between the Roman Empire andthe British Empire in India, focusing in particular on the problem of “fusion”with “the provincials” and on the diffusion throughout the world of juridicalsystems promoted by the two empires.105 Between the eighteenth and nineteenthcenturies, the British, with an awareness of being the true heirs of the Romans,also harbored a fondness for Italy, and reference to the Roman tradition becamea cliché not only of the culture of travel but also of political rhetoric.106 WhereItaly is concerned, it is clear that attributing the epithet of “new Romans” to theEnglish also functioned as a way to set up a model for Italian political coloni-zation. The English—according to contemporary parlance in Italy—dominatedby insisting on differences without universalist and abstract illusions; their pol-icies were not derived from the egalitarian concepts of the Enlightenment. Whatis more, racial difference was a criterion that was formally considered to becrucial in the administration of the British colonies.107 This is why Italian juridi-cal ideology brought together a strong idea of civilizing mission with the theoryand practice of an ideology of difference imbued with racism. Italian juridicalideology was a hybrid.I want to emphasize that jurists, in harmony with a general historical picture

that sees them as playing a preponderant role in the construction of the latenineteenth-century state, made notable contributions to establishing the idea ofmission. Indeed, as Bovio had pitilessly stressed—against the objections of someanticolonialist currents—Italy did not have a great deal of civilization that itcould export. It was held back by the fragility of a liberal construction that was

103 D’Amelio, “Colonia Eritrea,” 1,055.
104 See Robert L. Tignor, “Foreword to the Second Edition,” in Jürgen Osterhammel,
Colonialism: A Theoretical Overview ðPrinceton, NJ, 2005Þ; Tignor, “Lord Cromer.”105 James Bryce, “The Ancient Roman Empire and the British Empire in India,” and

“The Diffusion of Roman and English Law throughout the World,” in James Brice,Studies in History and Jurisprudence, 2 vols. ðOxford, 1901Þ. The topic has been treatedrecently in Krishan Kumar, “Greece and Rome in the British Empire: Contrasting RoleModels,” Journal of British Studies 51, no. 1 ð2012Þ: 76–101.

106 See John Pemble, The Mediterranean Passion: Victorians and Edwardians in theSouth ðOxford: Clarendon Press; New York: Oxford University Press, 1987Þ, 64–84.

107 See Philippa Levine, The British Empire: Sunrise to Sunset ðHarlow and NewYork, 2007Þ, in Italian translation as L’impero britannico ðBologna, 2009Þ, 114–15.



often threatened by antisystem forces and by the incomplete construction ofthe state, to say nothing of such immense social problems as the southern ques-

820 De Napoli

tion and illiteracy. I believe that without the intervention of a class of juristswho were also authoritative in the area of politics, the idea of mission wouldhave been emptied of meaning. It was the jurists who emphasized that Italy’smission was above all one of juridical civilization: it lay in the exportation ofthe superior juridical civilization derived from Roman law, of which Italianswere the natural heirs. Arguments of the sort were characteristic of the Fascistperiod from the start: “After the Rome of the Caesars, that of the Popes, thereis today a Rome, the Fascist Rome, which, simultaneously ancient and modern,demands the admiration of the world.”108 For many intellectuals, the new Fas-cist Rome was above all a juridical civilization: Rome had given its juridicalprinciples to the world. All the more reason for Fascist jurists to harp on thetheme “Roma fortissima, perchè Roma del Diritto” ðRome ultra-strong, becauseRome of LawÞ, to use Bovio’s words. Moreover, one of the areas in which theRome of the Caesars and the Rome of Il Duce were in fact similar was, pre-cisely, that of colonial law, the law that had made the existence of the RomanEmpire possible after its military conquests and that the jurists of the Venten-nio valued highly.109

Fascist Colonial Racism between Continuity and Discontinuity

According to a well-established historiographical thesis, at its start the Fascistregime brought no substantive changes to colonial policy of the liberal age.More than anything, a change occurred in the formal codes of that policy andin a radicalization of official language and political symbolism.110

The regime wavered on the question of citizenship: in 1933 a relatively as-similationist law was passed for Somalia and Eritrea conceding Italian citizen-ship in a number of cases of meticci, or children born of mixed unions.111 That

108 Speech given March 18, 1934, before the Quinquennial Assembly of the Fascist
Regime, now available in audio in RenzoDe Felice,Mussolini, multimedia edition ðTurin,2001Þ.
109 On the colonial juridical studies that flourished under Fascism, see Olindo DeNapoli, La prova della razza: Cultura giuridica e razzismo in Italia negli anni trentaðFlorence, 2009Þ, 1–2; Silvia Falconieri, La legge della razza: Strategie e luoghi deldiscorso giuridico fascista ðBologna, 2011Þ. See also Gennaro Mondaini, “Il dirittocoloniale italiano nella sua evoluzione storica ð1882–1939Þ,” in Studi di storia e dirittoin onore di Carlo Calisse, 3 vols. ðMilan, 1940Þ, 3:17–36.

110 See Luigi Goglia, “Sulla politica coloniale fascista,” Storia contemporanea 1ð1988Þ: 35–53; Goglia, “Note sul razzismo coloniale fascista,” Storia contemporanea 6ð1988Þ: 1,223–66.

111 On the legge organica no. 999 of 1933, see Giulia Barrera, “Patrilinearità, razza eidentità: L’educazione degli italo-eritrei durante il colonialismo italiano ð1885–1934Þ,”Quaderni storici 109 ð2002Þ: 32–53. See also De Napoli, La prova della razza, 3–18.



orientation was decisively disavowed in 1934, when Benito Mussolini person-ally assumed responsibility for the ministry that controlled the colonies ðlater the

Race and Empire 821

Ministero per l’Africa ItalianaÞ and then declared war on Ethiopia. After theconquest of that country, management of colonial policies changed course, turn-ing in particular against persons of mixed race and ða detail that is not oftennotedÞ against women. The legge organica for the empire112 confirmed a 1933provision that established loss of citizenship and acquisition of subject status foran Italian woman who married a native. Furthermore, the decree barred childrenof mixed blood who had not been legally recognized by their Italian fathersfrom acquiring citizenship. A later provision ð1937Þ penalized Italian citizens inthe colonies who maintained relations “of a conjugal character”—that is, stablerelations of an intimate nature—with native women ðin fact, the decree referredgenerically to “subjects”Þ. In this new and racist vision, African women could,at most, be considered a sexual outlet for Italian men.113

This was a radical change, and it happened in a very short period of time:there was something like a legislative shock prompted by the war and by FascistItaly’s new imperial awareness in which the racist laws had “a disruptive effecton the principles of government . . . and implied their redefinition.”114 In 1940the total exclusion of persons of mixed race from citizenship was passed intolaw.115 Carlo Costamagna, a jurist and a Fascist politician, but one who main-tained a certain independence, noted this change of course and this internalcontradiction within the regime. He pointed out that Italian legislation had been“in the past fairly uncertain because of the phenomenon of meticciato,” begin-ning with the Eritrean civil code that was never put into effect and extending asfar as the organic law for Eritrea and Somalia of 1933, which admitted personsof mixed blood to citizenship under certain conditions. According to Costa-magna, “Our legislative policy reflected an influence from French colonial leg-islation, which, after the Great War, had been reshaped in a sense favorable tometicciato, in view of a policy of assimilation ðlaws of November 16, 1914, forIndochina, November 5, 1928 and November 4, 1930Þ. Only after the acquisi-tion of Ethiopia and the foundation of a colonial empire worthy of the name didthe Italian legislator take on, with different criteria, the problem of the purity andthe prestige of the metropolitan race.”116

112 Law 1019 of June 1, 1936.113 De Napoli, La prova della razza, 63–80. See also Ruth Iyob, “Madamismo and

Beyond: The Construction of Eritrean Women,” in Italian Colonialism, ed. Ruth Ben-Ghiat and Mia Fuller ðBasingstoke, 2005Þ, 217–38.

114 Aldo Mazzacane, “Il diritto fascista e la persecuzione degli ebrei,” Studi storici 1ð2011Þ: 115. See also Olindo De Napoli, “The Origin of the Fascist Laws under Fascism:A Problem of Historiography,” Journal of Modern Italian Studies 17, no. 1 ð2012Þ:106–22.

115 Law of May 13, 1940, no. 822.116 Carlo Costamagna, “Razza,” inDizionario di politica, vol. 4, ed. Partito Nazionale

Fascista ðRome, 1940Þ, 28.



Historiography has not always grasped the break between the 1933 orien-tations and those of 1936–37.117 In reality, in the area of racism Fascism made

822 De Napoli

a public display of a continuity that did not exist. This may even be one of themost interesting aspects of the Fascist regime, where it shows itself as notmonolithic and not always consistent. Between the policy of the early 1930s re-garding indigenous populations and that of the latter half of that decade thereis a clear fracture, despite the deafening and monotonous chorus of politiciansand jurists who proclaimed Fascism’s continuity in colonial policies and in rac-ism. If we look closely at the history of colonial racist law, the turning pointwas not in 1922, but rather in 1935. Despite this, continuity was the leitmotifof Fascist rhetoric where colonial racism was concerned. In juridical culture aswell, Fascism was not one homogeneous block; it proposed a shifting synthesisof stubbornly held traditions ðwhat Pietro Costa has called “vischiosità tradi-zionalistiche”Þ and modernizing and palingenetic impulses.118 The mid-1930srepresents the moment at which these latter tendencies began to take hold, bothmore generally and from a juridical point of view.By that time, the paradigm for racism had begun to take increasingly clear

inspiration from a new source. No longer drawing on nineteenth-century evo-lutionism to view Africans as children who were the proper objects of the pa-ternalistic mission of the white race, it shifted instead to a clearer determinismin which black people were biologically and eternally inferior.119 Moreover, if inthe homeland antisemitic racism was shot through with spiritualistic notes, co-lonial racism seemed to be a bare biological discourse.120 Not that a certain ra-cial hierarchization did not exist in the colonies as early as the liberal period;121

but what we need to grasp is that the gap between the juridical culture and actuallegislation in 1935 signified a passage to a new paradigm of racism, hostile to

117 In his analysis of how the racist viewpoint penetrated the concept of citizenship,Pietro Costa sees a line of continuity between the 1933 legislation and imperial legis-
lation after 1936: see Costa, Civitas, vol. 4, L’età del totalitarismi e della democrazia,283. In contrast, the research of Giulia Barrera clearly shows an awareness of thechanges in 1935–36 in interviews with Eritrean women who lived through that period:Giulia Barrera, “The Construction of Racial Hierarchies in Colonial Eritrea: The Lib-eral and Early Fascist Period ð1897–1934Þ,” in A Place in the Sun: Africa in ItalianColonial Culture from Post-Unification to the Present, ed. Patrizia Palumbo ðBerkeley,2003Þ, 81–115. See also Gianluca Gabrielli, “Il razzismo coloniale italiano tra leggie società,” Quaderni fiorentini per la storia del pensiero giuridico moderno 33–34ð2004–2005Þ, 2 vols., 1:343–58, esp. 354–58; Richard Pankhurst, “Lo sviluppo del raz-zismo dell’impero coloniale italiano ð1935–1941Þ,” Studi piacentini 3 ð1988Þ: 175–95,esp. 175–76.
118 Costa, Civitas, vol. 4, L’età dei totalitarismi e della democrazia, 218.119 See Francesco Germinario, Fascismo e antisemitismo: Progetto razziale e ideo-

logia totalitaria ðRome and Bari, 2009Þ.120 See RobertoMaiocchi, Scienza italiana e razzismo fascista ðFlorence, 1999Þ, 241ff.121 See Barrera, “The Construction of Racial Hierarchies.”



promiscuity and explicitly renouncing the slightest hint of juridical civilization.Now natives were not “children” or minors that the guidance of the civilized

Race and Empire 823

whites could induce to ascend, evolve, or be “transformed,” as Bovio put it, butrather were populations belonging to a race that was and would remain biolog-ically inferior. The law, at that point, was no longer a wealth to be offered, evenif by imposition, but simply an instrument of domination. If colonial discoursehad long basked in the idea of a pro tempore differentiation of laws in the ex-pectation that the savages would evolve to the level of European juridical and so-cial forms, by the mid-1930s Fascist imperialism, with its new racism, assertedthat progress of the sort was impossible.122 Fascist law was also structured onthe basis of a relationship with disciplines distant from the law, such as the bio-logical sciences, in a general reordering of the encyclopedia of knowledge. Thismeant that the new colonial juridical concepts were impacted by sciences tradi-tionally held to be unrelated to law, such as biology and anthropology.123 Theanthropologist Lidio Cipriani, who was a member of the Race Office of theMinistry of the Interior, responded with a “firm no” to the question of whetherthe indigenous peoples of Africa were capable of progress.124 Humanistic studieswere engaged in these cultural tempests as well. The historian Raffaele Ciasca,for example, made use of botanical comparisons to depict Fascist colonial pol-icies against persons of mixed race, stating that it was important to learn fromthe experience of other colonizing countries “the extent to which the inferiormixed races ½il metticiume� have hampered the work of profound penetration ofthe metropolis in the colonies, given that the fruit of the grafting of civilizationon barbarity is often ashes and poison.”125

In my opinion, an emphasis on the impossibility of evolution and a tendencytoward determinism, accompanied by hostility toward racial promiscuity, rep-resented a substantial change from the liberal position on racism. More gen-erally, we can note the shift from a philosophy of history based on the myth of

122 According to Barbara Sòrgoni, at the beginning of the twentieth century “some
exponents of the juridical world were in agreement in considering the ‘less civil’ char-acteristics of the colonized societies to be of environmental origin, hence open to bet-terment. Those characteristics would progress, however, with such slowness as to put offto an indefinite future any eventual right of citizenship for colonial subjects”: Sòrgoni,Parole e corpi, 252.
123 See Mazzacane, “La cultura giuridica del fascismo,” 5–6.124 Quoted in Francesco Cassata, “La difesa della razza”; Politica, ideologia e im-

magine del razzismo fascista ðTurin, 2008Þ, 231.125 Raffaele Ciasca, Storia coloniale dell’Italia contemporanea: Da Assab all’Impero

ðMilan, 1938Þ, 707. The word tòsco is an archaic term for poison: Ciasca is referring to aline in the poem of Giosuè Carducci, “non crescono arbusti a quell’aure, o dan frutti dicenere e tòsco” ð“Per lamorte di NapoleoneEugenio,” 1877Þ. In the post-Fascist era Ciascawas a senator representing Democrazia Cristiana and president of the Istituto Italiano perla Storia Moderna e Contemporanea.



progress to a conception based on the idea of history as the result of a strug-gle between civilizations or races and on an obsession with decadence and

824 De Napoli

degeneration.126 A new racism lent legitimacy to juridical discourse on impe-rialism, with enormous consequences—as we shall see—from the juridical-political point of view.

An Odd Couple: Totalitarianism and Colonialism

The imperialist assertion of Italian racial supremacy in Africa became a for-mula used in support of a genuine Fascist revolution in law and dogmatics.In the late 1930s and the 1940s that revolution was predicted by a number ofjurists who escape facile classification within the current of thought known as“Fascism of the Left,”127 which traced its origins to Fascist syndicalism andtheorized a new antibourgeois revolt.128 This revolution in the law moved in asubstantialist, antiformalist, and anti-idealist direction, and it was to lead theItalian juridical system to a closer resemblance to National Socialist Staatsrechtinvolving a Fürerprinzip by which the words of Il Duce would be taken as agenuine source of law and an interpretive criterion for their sources. That “newlaw,” in fact, would be born of the new “jurists of the empire” whom Costa-magna called on Italian universities to start forging. Here lies the fundamentalconnection between juridical racism and colonialism in its Fascist imperialversion. The right to empire, according to Costamagna, “withers away” in thehands of those whom he ironically called legisti to signify that he was speakingof jurists who remained tied to the old formalistic dogmas and were incapable ofunderstanding the intimate dynamic of the Fascist substance of the “new law.”Such men had shown the most absolute “indifference for the ends” and now wereunable to serve the Fascist revolution. Costamagna writes:

126 See, for example, the influence in this period of Oswald Spengler, in particular, hisDer Untergang des Abendlandes: Umrisse einer Morphologie der Weltgeschichte ðVi-
enna, 1918Þ, 2 vols. ðMunich, 1922Þ, in English translation as The Decline of the West,2 vols. ðNew York, 1939Þ. Spengler’s early works were translated into Italian on theinitiative of Benito Mussolini: Michael Thöndl, “Der ‘neue Cäsar’ und sein Prophet: Diewechselseitige Rezeption von Benito Mussolini und Oswald Spengler,” Quellen undForschungen aus italienischen Archiven und Bibliotheken 85 ð2005Þ. On the topic of thedegeneration of Italian scientific culture, see Claudio Pogliano, L’ossessione della razza:Antropologia e genetica nel XX secolo ðPisa, 2005Þ. On racism as narration of the his-tory of the war between the races, see Foucault, Il faut défendre la société; “Society Mustbe Defended”; Bisogna difendere la società, 61–77.
127 See Giuseppe Parlato, La sinistra fascista: Storia di un progetto mancato ðBologna,2000Þ.

128 Anti-bourgeois polemics were the main thrust of the “Fascist cultural revolution”of the late 1930s and involved “an unprecedented deployment of propagandistic means”:Renzo De Felice, Mussolini: Il duce, 2 vols. ðTurin, 1981Þ, vol. 2, Lo stato totalitario1936–1940, 100.



These men have not felt the Revolution: they serve, for the most part, as mercenaries,not as volunteers. They serve with the same narrow-minded and arid spirit with which

Race and Empire 825

they had been formed in the cult of the rights of man in a utilitarian and materialistclimate. . . . They have rejected the vital shock, the spiritual catharsis of the new rev-olution, or rather they have been rejected by it. Only a virtuosity of a poor alloy; not anoutburst of passion, not a lightning bolt of faith. And for that reason, law, which is thesuperior expression of the creative spirit in the political order, withers in their hands.129

Pietro De Francisci, an eminent scholar of Roman law ðpublic law in particu-larÞ, a papyrologist, and the Fascist Ministro di Grazia e Giustizia ðMinister ofGrace and JusticeÞ from 1932 to 1935, spoke of the “new law” in similar terms.130

Inaugurating the first Italian Juridical Congress in 1932, he proposed the needfor a “new dogmatics” that would represent “a body of principles put to the ser-vice of a practical interest and having an instrumental value in respect to a givenjuridical order.”131 In this context, laws constitute only “the endpoint of a pro-cess that exists beyond the law,” that is, within political organization. Dogmat-ics must be founded not on presumed universal principles, as asserted in liberal-democratic doctrines, but on particular and concrete principles, which meantthose asserted by Fascism.132 When De Francisci returned to academic life in theyears of state racism ðfrom 1936 on where colonial racism was concernedÞ, heworked—clearly in ways that were consistent with his studies and with the theo-retical position outlined above—to reconcile Roman law, traditionally consid-ered law with a universalist vocation, with the new racist laws that were on theregime’s agenda.133

It should be noted that the thought of Carl Schmitt, which the review directedby Costamagna, Lo Stato, began to introduce into Italy, influenced theorizationabout the osmosis between law and politics—and the consequent loss of au-tonomy of the formal construction of the law.134 In reality it was the culturalclimate of the entire period of Fascism in the 1930s and 1940s that urged revoltagainst the traditional juridical forms that had arisen in the liberal era and drewsustenance from formalism. Formalism lacked “awareness of the voluntaristicelement,” which was founded on value judgments rather than formal proce-dures: “It is in fact an illusion of pure dogmatics that the operations by means of

129 Carlo Costamagna, “I giuristi dell’Impero,” Lo stato: Rivista di scienze politiche e
giuridiche 4 ð1939Þ: 243. See also Costamagna, “Sempre su la dogmatica,” Lo stato:Rivista di scienze politiche e giuridiche 4 ð1939Þ, 251, a text that is interesting for itsreferences to the law of National Socialism, which had broken with the rule of law.
130 See C. Lanza, “Pietro De Francisci,” in DBI.131 Pietro De Francisci, “Ai giuristi italiani: Discorso inaugurale del Io Congresso

giuridico italiano,” Lo stato: Rivista di scienze politiche e giuridiche 10 ð1932Þ: 681.132 Ibid., 678–79.133 This development is reconstructed in De Napoli, La prova della razza, 111–34.134 See Wolfgang Schieder, “Carl Schmitt und Italien,” Vierteljahreshefte für Zeit-

geschichte 37 ð1989Þ: 1–21.



which concepts, general principles, and the rules destined to resolve a concretecase that are derived from norms are simply procedures of formal logic.”135

826 De Napoli

Italian juridical historiography regarding Fascism has often made pro-nouncements against formalism, understood as supine obedience to Fascist lawon the part of Italian magistrates.136 On the contrary, an attentive analysis showsthat the Fascist revolution in the law—the imperialist and racist law that aimedat introducing a sort of Führerprinzip in Italy—was in substance completelyantiformalist.137 In short, it can be called “totalitarian law”—a totalitarian lawthat found legitimacy, in Costamagna’s mind, in the new imperial reality. “Aparty that governs a nation in totalitarian fashion is a new event in history,”Mussolini had stated, and Stefano M. Cutelli, a jurist much less influential thanthose who have been mentioned thus far but who had a notable visibility afterthe antisemitic developments of 1938, stated that such words ought to “awakena good will in all those who still lazily sleep on the old dogmatics of law.”138

Among the countless references to an antiformalist totalitarian law in the late1930s I have cited Cutelli because, more than any other writer, he linked to-talitarian law, antiformalist revolt, and racism precisely on the basis of thenorms of colonial racism, and he analyzed them in this way from the very startin his review, Il diritto razzista.139 It was Costamagna, however, who identifiedthe connection between imperialist colonialism and Fascist “new law.” After theconquest of the empire, jurists were expected to give strong support to a newproject and a new idea of law based on different general organizing principles.In this sense, according to the interpretive key that I propose here, the new co-lonial racism and the antisemitic laws that followed it and were in some waysconnected to it became, in the Italian juridical experience, the premise and theimpetus for a totalitarianization of the regime.140

135
De Francisci, “Ai giuristi italiani,” 678. See also Pietro De Francisci, “La missionedel giurista,” in Atti della Società italiana per il progresso delle scienze: XVI riunione,Perugia, 30 ottobre–5 novembre 1927 ðPavia, 1928Þ.
136 For example, see Paolo Grossi, “Pagina introduttiva,” Quaderni fiorentini per lastoria del pensiero giuridico moderno 28 ð1999Þ: 1–5; Grossi, “Pagina introduttiva ðasessanta anni dalle leggi razziali del 1938Þ,”Quaderni fiorentini per la storia del pensierogiuridico moderno 27 ð1998Þ: 1–9; Grossi,Mitologie giuridiche della modernità ðMilan,2001Þ.

137 For reflections in this second direction, seeDeNapoli,Laprovadella razza, 234–39;Ferdinando Treggiari, “Questione di stato: Codice civile e discriminazione razziale in unapagina di Francesco Santoro-Passarelli,” in Per saturam: Studi per Severino Caprioli, ed.Giovanni Diurni et al., 2 vols. ðSpoleto, 2008Þ.

138 Stefano M. Cutelli, “Rassegna della legislazione,” Il diritto razzista 1 ð1939Þ: 73.139 See Giancarlo Scarpari, “Una rivista dimenticata: ‘Il diritto razzista,’” Il Ponte 1

ð2004Þ: 112–45; De Napoli, La prova della razza, 234–39.140 The importance of the experiment of new colonial racism for the later development

of antisemitism is stressed, for one, by Neil MacMaster, Racism in Europe, 1870–2000ðBasingstoke, 2001Þ.



The effect of totalitarianism taking hold of the Fascist regime was to move itcloser to National Socialism; the laws against the Jews represented the apex of

Race and Empire 827

that shift.141 Il Duce and some in the extremist wing of Fascism were attractedby the fact that the “scientific” nature of the racist theories gave German Na-tional Socialism a coherence that Italian Fascism seemed to lack.142 Moreover,around 1935, Hitler ðwho up to then Mussolini appeared to consider only his im-itatorÞ began to represent the example of an all-out totalitarianism, given thathe had concentrated all powers in his hands and left the traditional forces onlya highly limited and conditioned space—something that had not happened inItaly, where the Crown, the army, and the Catholic Church confined the Fascistregime within certain limits.143

Traditionally, the distinctive traits of totalitarianism are held to be an ideologythat claims to explain and comprehend all social phenomena; the permanentmobilization of the masses; an integral politicization of social relations; a tightlyrepressive control; and a total monopolization of political power.144 Historianswho study this model have often seen Fascism as gradually losing its ideologicalcoherence due to inadequate attempts to mobilize the political arena and, aboveall, to occupy it completely. As early as 1951, Hannah Arendt, a noted expert onthe origins of totalitarianisms, did not consider Italian Fascism to be a totalitar-ian regime ðunlike Stalinism or National SocialismÞ,145 and the Italian regimegradually came to be presented as an incomplete or limping totalitarianism.A revision of that thesis has recently been proposed that stresses that all

totalitarian experiments have been incomplete or imperfect when compared to atheoretical model of perfect totalitarianism ðas seen in George Orwell’s novel,1984Þ. One can rightly use the term “totalitarian” for the Italian Fascist regime,looking beyond its problematic results to consider its “totalitarian method” ofgoverning. The category of totalitarianism, that is, can be understood on thebasis of the political dynamics put into motion more than by the results ob-tained, which may be partial.146

This can be seen in the events analyzed here. The new imperialist and anti-semitic racism was the basis for putting forward a change of direction toward

141 Alberto De Bernardi, Una dittatura moderna: Il fascismo come problema storico
ðMilan, 2001Þ, 270.
142 Pierre Milza and Serge Berstein, Le Fascisme italien: 1919–1945 ðParis, 1980Þ,218ff.

143 On the intepretation of Fascism as an imperfect totalitarianism, see Alberto Aqua-rone, L’organizzazione dello stato totalitario ðTurin, 1995Þ.

144 Juan J. Linz, “Totalitarian and Authoritarian Regimes,” in The Handbook of Po-litical Science, ed. Fred I. Greenstein and Nelson W. Polsby ðReading, MA, 1975Þ.

145 Hannah Arendt, The Origins of Totalitarianism ðNew York, 1951Þ.146 EmilioGentile, La via italiana al totalitarismo: Il partito e lo stato nel regime fascista

ðRome, 2008Þ, in English translation as The Italian Road to Totalitarianism ðLondon,2004Þ. See also Totalitarianism and Political Religions: Concepts for the Comparison ofDictatorships, ed. Hans Maier, trans. Jodi Ruhn, 3 vols. ðLondon, 2004–7Þ.



totalitarianism in the juridical system, with a clear setting aside of the juridicalprinciples traditionally asserted and the old systematic arrangements, beyond

828 De Napoli

any effective success of such a project. In other words, totalitarian dynamicswere put into motion within juridical culture.A first aspect of this state of affairs can be seen in the phenomenon of the

biologizing of the juridical, hence in its loss of autonomy in connection with thepositive sciences. The biologizing of the juridical corresponded to the occupa-tion of an institutional and cultural space by a politics that increasingly tookinspiration from the criteria of positive science. Commenting on the first legis-lative provisions in the colonies in the 1930s, Mariano D’Amelio noted that“anthropological truth” prevailed over juridical presumption. Similarly, the an-thropologist Giuseppe Sergi asserted that “knowledge of the physical and psy-chic characteristics of men, of the natural processes of development, and ofcustoms and institutions, constitutes the foundation of legislative and juridicalpolicy.” Despite a constant stream of works written to present Italian racism as“spiritual,” biological elements were inexorably introduced into laws. The cri-teria for identifying Jews in the laws of 1938 and 1939 were biological; many ofthe provisions that regulated the lives of the colonial populations were inspiredby biological considerations.Second, given pressures to interpret the racial laws according to their spirit

and beyond their mere forms, doctrine was oriented so as to feature, as a sourceof law, the will of the head of state as it was expressed in the speeches ofIl Duce. This was in line with the Führerprinzip as theorized in Germany, andin fact recent studies in political science have reevaluated the figure of thecharismatic leader and his will as the cornerstone of totalitarian regimes.147

To be sure, antisemitism and the laws against the Jews had a specificity and ajuridical expression of their own with respect to the colonial racism underexamination here. With the conquest of Ethiopia, Italy had officially become anempire and a racist state, but it was not to be taken for granted that it wouldmove from discrimination against African natives to discrimination aimed atJews, because the two groups involved different problems.Jews, in fact, were woven into the fabric of Italian society, economy, and

culture; integration was strong, including at the political level, given that manyJews were Fascists. In contrast, the indigenous populations of the African col-onies had always lived in a condition of subordination and difference in com-parison with the Italians ðone need only think of the absence of any form ofrepresentation of the subject populationsÞ. All of these considerations can betranslated into juridical terms by saying that African natives were subjectsðalthough Libya had a “Libyan citizenship” that in reality differed little fromsubject statusÞ, whereas the Jews were Italian citizens. This presented a further

147 Michael Halberstam, Totalitarianism and the Modern Conception of Politics
ðNew Haven, CT, 2004Þ.


problem for the racist action of Fascism. The difficulty inherent in antisemiticlaws was to persuade public opinion to accept them. Philosophic theories, “sci-

Race and Empire 829

entific” assertions, and geopolitical, historic, economic, and even juridical the-ories arose to justify them. In humanistic culture, “spiritualistic” theses helpedmake racism acceptable in a cultural area not prone to biological determinism,while leaving biological requisites for applying anti-Jewish laws uncontested.148

In colonial racism, on the other hand, few saw any problem with a rough anddeterministic biological discourse.Although some differences of opinion remain, most of the historiography is in

agreement on the idea that the racist colonial and anti-Jewish laws togetherrepresented a sign of an acceleration of totalitarianism, a phase that Robert O.Paxton calls the stage of “radicalization or entropy.”149 Mussolini and the Fascistelites shared a vision of imperialist colonial and antisemitic racism as a factorthat had operated continuously in the service of the totalitarian process. In orderto assert that vision they sometimes used propaganda to impose a view of thehistory of Fascism without any moments of fracture on the theme of race.A historiographic question of particular importance lies in the connection

between imperialism, “new racism,” and totalitarianism. It seems to me that thisis an important point for the interpretation of the history of Italian law in the1930s and the 1940s that has seldom been made in international historiographyon colonialism. Indeed, even in theorizations and comparisons of the many co-lonial experiences,150 the specific nature of the Italian experience of construct-ing an empire precisely when totalitarian dynamics were active in the countryhas been unrecognized or understated.Italy is in fact considered to be the only totalitarian country among the

imperialist countries of Europe ðalthough much has been written about the vainambitions of Italian imperialismÞ. Or, to be more precise, Italy was the only oneof the totalitarian countries that constructed an overseas empire,151 given thatGermany had already lost its colonies at the end of the Great War.152

148 See Gianni Scipioni Rossi, Il razzista totalitario: Evola e la leggenda dell’antisem-itismo spirituale ðSoveria Mannelli, 2007Þ; Olindo De Napoli, “El problema filosófico
del racismo fascista desde la perspectiva de la cultura juridica,”Fronesis3 ð2008Þ: 119–47.For some of the theses of the jurists who created colonial racism, see Ilaria Pavan, “La cul-tura penale fascista e il dibattito sul razzismo ð1930–1939Þ,” Ventesimo Secolo 17 ð2008Þ:45–78; and De Napoli, La prova della razza, 1–101, 205–11.
149 Robert O. Paxton, “The Five Stages of Fascism,” Journal of Modern History 70,no. 1 ð1998Þ: 20–21.

150 See, for example, Crawford Young, The African Colonial State in ComparativePerspective ðNew Haven, CT, 1994Þ; Osterhammel, Colonialism; Devleena Ghosh andPaul Gillen, Colonialism & Modernity ðSydney, 2007Þ.

151 A similar argument can be found for the Japanese empire in Louise Young, Ja-pan’s Total Empire: Manchuria and the Culture of Wartime Imperialism ðBerkeley,1998Þ.

152 This point is valid except when a connection is made between the Nazi expansionin Europe and the colonial policies of the European empires: see, for example, Mark



What dynamics set off totalitarian juridical discourse in the colonies? Ofcourse, we need to avoid a deterministic attitude that deduces the existence of

830 De Napoli

a “totalitarian colonialism” from racist and totalitarian discourse. As always, therewere gaps between public discourse, representations, and juridical and adminis-trative practice. Historiography has just begun to shed light on the phenomenonof administrative power. On the one hand, there was a desire to create a new classof young functionaries, “true Fascists” chosen from among ex-combatants; buton the other hand, incongruent situations in the chain of command, duplications ofjob descriptions, and abuses of power persisted.153 Despite these discrepancies,totalitarian and racist discourse had an effect on the administration and on thejudicial world, beginning with differences in awareness among functionaries andjurists as a class. The question remains of what sort of dynamics were createdwithin the administration of life in the colonies and how those processes differedfrom the juridical and administrative functions in lands administered as coloniesby nontotalitarian powers.

Some Remaining Considerations

A few marginal notes still need to be made about the analysis proposed here ofthe history of Italian colonialism. First among these is an observation on theculture of the jurists. These men were not—at least, not entirely—a class oftechnicians with no stake in the political options that were in play. Individualsclearly emerge, men who combined professional responsibility and parliamen-tary involvement with juridical and political theorization ðwith regard to co-lonialism, this was true of jurists as distant in time as Mancini and Costa-magnaÞ.154 Despite the stereotyped ways in which jurists represented their

Mazower,Hitler’s Empire: How the Nazis Ruled Europe ðNewYork, 2008Þ, esp. 576–97.

153 Chiara Giorgi, L’Africa come carriera: Funzioni e funzionari del coloniamismoitaliano ðRome, 2012Þ, 175–82. “Imperfect colonial totalitarianism” is a topic treated inNicola Labanca, “L’impero del fascismo: Lo stato degli studi,” in L’impero fascista:Italia ed Etiopia ð1935–1941Þ, ed. Riccardo Bottoni ðNaples, n.d.Þ, 35–61.

154 It is truly significant that when Costmagna searched for Italian precursors ofFascist racism, he cited Mancini: see Carlo Costamagna, “Razza e nazionalità,” Lo stato:Rivista di scienze politiche e giuridiche 4 ð1939Þ: 248–49.

Instead, the differences between colonial and Nazi policies of extermination are stressedin Robert Gerwarth and Stephan Malinowski, “Der Holocaust als ‘koloniar Genozid’?Europäische Kolonialgewalt und nationalscozialistischer Vernichtungskrieg,” Geschi-chte und Gesellschaft 33 ð2007Þ: 439–66. For a clear contrast between the juridical and“telluric” organization of overseas empires—thanks to reference to the struggle betweenBehemoth and Leviathan—see Carl Schmitt,Der Nomos der Erde im Völkerrecht des JusPublicum Europaeum ðCologne, 1950Þ. See also Filippo Ruschi, “Leviathan e Behemoth:Modelli egemonici e spazi coloniali in Carl Schmitt,” Quaderni Fiorentini per la storiadel pensiero giuridico moderno 33–34 ð2004–5Þ: 379–462.



roles in the ottocento and even earlier, doctrine is not neutral. To the contrary, inthe forms in which we have seen it, doctrine argued for a colonial policy and a

Race and Empire 831

racist definition of that policy.In their own way, such forms remained juridical in nature. Mancini’s met-

aphor, drawn from private law, of tutelage of the incapable; the assertion of thenation as the only recognized subject of international law; Bovio’s emphasison the construction of the state; the differentialist idea proposed by other schol-ars of the positive school of penal law; the vision of Costamagna and others thatthe general principles of the law had changed with Fascism—all are discursiveformulations that belong ðand in this the jurists complied with their professedmissionÞ within the juridical field.Second, throughout the liberal age, Italian juridical thought was well inte-

grated within the international context, using themes and arguments that werewidespread at the time in all European lands, and this in spite of the fact thatItalian colonialism was a late development in comparison to those of otherlands. ðMoreover, Italy and Germany were the last among them in the processof constructing the state.ÞFinally, Italy is extremely interesting as a case study precisely because in the

Fascist age we can grasp the connection, constructed within juridical debate, be-tween racist colonial law and totalitarianism—a connection that is hard to graspelsewhere. It has recently been stated that the colonial state may not have beenthe mechanism for crushing rocks that Crawford Young has theorized,155 butrather an administrative machine that, when possible, preferred to compromisewith existing situations. In this view, massacres of subjects were the exception,not the norm. I believe that we must ask whether a scheme of this sort func-tions if the colonizing country under examination is undergoing a move to total-itarianism in the homeland and can be conceived of—as was actually the casewith Italy after 1935—in the state of permanent mobilization defined as war. Itis not superfluous to emphasize here that the cornerstone of Fascist religiosity,especially after the mid-1930s, was an attempt to inculcate in the Italian peoplethe idea of being citizen-soldiers.156

Historians have barely begun to throw light on the question of how such adoctrine managed to influence and change the dynamics of public adminis-

155 See Young, The African Colonial State. Against Young’s theses, see Bruce J.
Berman, “The Peril of Bula Matari: Constraint and Power in the Colonial State,” Ca-nadian Journal of African Studies 3 ð1997Þ: 556–70. For a different perspective on thecolonial state, see Osterhammel, Colonialism, 49–68. On Italy, see Costa, “Il fardellodella civilizzazione,” 171, where Costa reflects on the one-way direction of juridicalcommand between the center and the periphery.
156 See Emilio Gentile, “Fascism as Political Religion,” Journal of ContemporaryHistory 25 ð1990Þ: 229–51.



tration in the Italian colonies in the way that colonial jurisprudence did.157 Inshort, totalitarian colonialism is a path that remains to be trodden.

832 De Napoli

One thing that we still need to examine is the break that took place duringthe 1930s. The regime not only became more radical at that time but racismchanged as well. Rather than speaking of a Fascist racism arising in that period,we should speak of a change of paradigm in racism. That shift consisted in anaffirmation that black people could not evolve as a race; in an aversion to themixing of races, understood as a form of racial degradation; and in a more strictlytotalitarian ideology that highlighted the need for white supremacy and avoidedarguments for paternalism. If nineteenth-century racism stated that the Africanrace was a historical zero, totalitarian racism asserted that it was a future zero.This difference needs to be noted. The problem is not just to measure the inten-sity of scorn for the Other but also, and more importantly, to grasp the diversityof forms that such scorn can inhabit.

157 On how the law began to invade the sphere of private life and sentiments, seeGiulia Barrera, “Sex, Citizenship, and the State: The Construction of the Public andPrivate Spheres in Colonial Eritrea,” in Gender, Family, and Sexuality: The PrivateSphere in Italy 1860–1945, ed. Perry Willson ðBasingstoke, 2004Þ, 157–72. On someinteresting comparative aspects of the early racist norms in the colonies established bythe Fascist regime, see Iyob, “Madamismo and Beyond,” 237.



Race and Empire: The Legitimation of Colonialism in Italian Juridical Thought

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