Preliminary Programme

Scholarship on the Rocco Code can generally be divided into two distinct groups. The first, with a principal focus on high politics and political repression, has presumed a violent rupture between criminal law under Mussolini and that of the Liberal regime which ruled Italy from national unification in 1861 to the Duce’s March on Rome in 1922. The second, advanced by historians of both criminology and the law, has interpreted the 1930 Rocco Code as a compromise between rival juridical camps: the “classical school” (those who championed the Enlightenment-era legal philosophy of Cesare Beccaria) and the “positivist school” (those who promoted the criminological precepts of Cesare Lombroso). In so doing, these scholars have argued for an essential continuity between Liberal and Fascist criminal law, but a continuity that favored positivist conceptions of crime and punishment and therefore represented a “victory” for Lombrosian criminologists. These approaches, I would argue, need to be reconsidered. First and foremost, the existing historiography has centered almost exclusively on doctrinal debates and rhetoric, not on the actual practice of criminal law. Moreover, it has ignored the decade of the 1920s, especially the critical five-year period in which jurists drafted, debated and revised the Rocco Code. Perhaps most importantly, scholarship has failed to interpret the Fascist criminal code in a wider international context. As a result, historians have neglected to examine the extent to which pre-Fascist penal law – both Italian and foreign – influenced the content of the Rocco statutes. At the same time, they have overlooked the subsequent appeal of those statutes outside Italy and what it tells us about the Rocco Code’s relationship to international penal-reform discussions in the 1930s. By reassessing Fascist criminal law in both its national and transnational contexts, my paper proposes to begin addressing these issues and thereby to challenge longstanding assumptions about the meaning and broader significance of the Codice Rocco. (Show less)

Johann Eichhorn was arrested in January 1939 after a failed attempt to rape a twelve-year-old girl. An intensive criminal investigation ensued during which the five unsolved murders and the sexual assaults were incorporated into the charges against him. The investigation lasted until October that year, followed by a two-day trial at the Munich Special Court (Sondergericht) at the end of November that ended in his execution in the early hours of the following morning (1 December). Like many sexual miscreants before (and after) him, Eichhorn was in reality a pathetic figure from a culturally poor and brutalised background with limited education and horizons. Even a cursory reading of the mass of evidence contained in the hundreds of files related to this and other cases shows that there was little to distinguish Eichhorn from his milieu. My study shows how the different agencies consciously distorted this ‘ordinary’ Eichhorn to create the sexual deviant who stalked and therefore endangered the Volksgemeinschaft. The authorities, to fit the received trope of the ‘sex murderer’- even where this led to contradicting the earlier forensic and medical findings - manipulated the evidence. The sources not only offer an insight into how forensics and law actively constructed the ‘sex murderer’ as a social phenomenon, they also show how this particular case was utilised for personal advancement by ambitious professionals, and by the Nazi state itself as it took the country into war in 1939. All those involved in pursuing Eichhorn to the death chamber, from the police officers and forensic experts to the ambitious young prosecutor and the judge, had an interest in his transfiguration into a ‘sex murderer’. The case ultimately furthered their careers. Furthermore, Eichhorn’s arrest, subsequent trial and execution provided a public display by the regime of its ruthless determination to exterminate from its midst enemies of the Volksgemeinschaft. Placed in a regional context (although the case found a national echo), the Nazi state also became a beneficiary of Eichhorn’s fate. It offered the Nazi Party in Bavaria an opportunity to cement the Volksgemeinschaft by mobilizing the population into a Wehrgemeinschaft (defence community) in the early weeks of the war. (Show less)

Dictators tend to view the criminal law in instrumental terms, but how they use the criminal sanction varies with the circumstances. In addition to domestic factors (such as the needs of the labour market, or threats to the regime or public order), international considerations may also play a part. These might include the desire to attract foreign investment or to develop or maintain a good reputation or standing for one’s country. At the same time, to the extent that domestic officials and experts maintain ties with foreign colleagues, they may become conduits for the importation of policy ideas and practices. Furthermore, the impact of either a concern with reputation or the importation of ideas may be substantial or involve only the way criminal justice is presented to the outside world. Such a gap between rhetoric and reality is common in the law and courts of authoritarian states in the age of globalization, but arguably this is a much older phenomenon.

My paper will explore the ways that international connections and the concerns of relevant actors (including dictators) about foreign perceptions affected the development of criminal justice in the first decades of Soviet power. It will contrast three distinct periods—the 1920s, which to a large degree continued late Tsarist Russia’s attempt to develop courts and prisons that would be respectable in Europe, and a time when specialists maintained strong ties with colleagues abroad; the 1930s and early 1940s, when the USSR turned inward, specialist ties abroad were broken, and criminal policy became subordinated to other policy goals, yet reputation still mattered; and the post-War years (1946 to 1960), when the USSR’s new role in the Eastern Europe and the world stage produced a new concern about reputation and face that had fundamental implications for criminal justice, notwithstanding the lack of a revival of international ties among specialists. (Show less)

The existing historiography of criminal justice under National Socialism falls largely into two strands of interpretation. One strand has focussed on the “perversion” of criminal justice under the Nazi regime, viewing 1933 as a radical break and usually concentrating on political justice and the persecution of racial minorities. The other strand has looked for continuities across 1933, but claims to have found them in specifically German factors – such as the right-wing judiciary or German legal positivism – along the lines of the “Sonderweg” interpretation of German history. What this historiography has neglected are lines of continuity across 1933 that were not specifically German (or right-wing), but connected to the international penal reform movement that drew together legal reformers across Europe since the turn of the century. The projected paper proposes to place criminal law reforms during the prewar Nazi years in the context of this international penal reform movement in order to show that Nazi developments were neither as isolated from international developments nor as disconnected from the mainstream Weimar reform traditions as is often assumed.

The paper will use the XI. International Prison Congress that was held in Berlin in August 1935 as a lens for examining both Nazi attempts to gain legitimacy for their legal reform by connecting them to international trends and the attitudes of the foreign jurists toward Nazi justice. The paper will then examine the attitudes of Nazi criminal law reformers toward the international penal reform movement, Italian fascist and Soviet criminal justice, and legal developments in other European countries through a cross-section of legal journals, monographs, commission reports, and published lectures. Preliminary research points to two main theses. First, even though Nazi jurists condemned the Weimar penal reform movement as “liberalistisch” and overly humanitarian, substantial parts of the Nazi reforms were drawn from the agenda of this international reform movement. Second, by the same token, even though 1933 most certainly marked a rupture in the history of the international penal reform movement, foreign reactions to legal developments in prewar Nazi Germany were not uniformly hostile but, at least for a while, often quite ambivalent. (Show less)