Theories of Law and Justice of Fascist Italy
| Published date | 01 December 1937 |
| Date | 01 December 1937 |
| DOI | http://doi.org/10.1111/j.1468-2230.1937.tb00017.x |
| Author | Julius Stone |
THE
MODERN
LAW
REVIEW
VOl.
I
DECEMBER,
1937
No.
3
THE
INCIDENCE
OF
JURY
TRIAL
DURING
THE
PAST
CENTURY
At page
144
of the last number of
THE
MODERN
LAW
REVIEW
the figure for jury trials in
1935
is quoted as
a6
per thousand
judgments.
This
should have read
e06,
thus justifying the author's
comment that in
1935
jury trials in the county courts had
practically ceased to exist.
THEORIES
OF
LAW AND
JUSTICE
OF
FASCIST ITALY
INTRODUCTORY
DEOLOGICAL analysis is a hazardous activity at the quietest
of
times on the most innocuous
of
topics.
At
least thrice as
great as this minimum is the hazard which must be felt by
the writer
of
the following pages. For these are
no:
the quietest
of
times-rather are they times made terrible
by
the clash
of
idea upon idea, and
of
sword upon 'swoid as the ruthless and
truthless arbiter between them. Nor is Fascism the most innocu-
ous
of
topics that might be chosen by one who believed that ideas
I
I78
MODERN
LAW
REVIEW Dec.,
1937
might
still
repay analysis-rather
is
it
among the most aggres-
sive, disruptive and disquieting forces at work in the modern
world.
No
caveat
can give immunity from these incidental hazards.
Yet there
is
one grave hazard which is not properly incidental to
the task the writer has undertaken. This article is concerned
only with fascist
theories
of law and justice; with what those
who guide the destinies of fascist Italy profess to think about
what they do.
It
is not concerned with the divergence between
what they
do
and what they
profess.
It
must not be assumed
therefore, that because theories are here stated and analysed at
their face value the writer is innocent of the extent to which
performance, and indeed, even sincere endeavour may fall short
of profession.
This warning
is
all the more necessary since the prevailing
approach to Fascism in democratic literature is precisely the one
which the present writer seeks to avoid. The prevailing approach
proceeds along the following path. Fascist theories may be more
advanced than those
of
the most progressive democracies, but
fascist practice falls far behind the practice even of the
most
backward democracies. The corporative state in theory,
so
it is
said,
is
one thing, the fascist syndicalist and corporative actualities
are quite another. Now this prevailing approach takes for
granted that fascist theories of social organisation, and of law
and justice are theories highly advanced when compared with
those of the great democracies.
It
is this very assumption which
the present article seeks to probe.
Do
the component theories of
Fascism, even ignoring the deficiencies
of
practice, represent any
novel or progressive contribution
to
our theories of the social
order?
It
will surely be of the utmost significance, if, as the writer
has come to believe, the high sounding ideas
of
the corporative
state resolve themselves on analysis into ideas which, for the
most part, have long been commonplace in modern democracies,
and which for the rest, are remarkable only because of their
extremely reactionary character.
I.
THE
COMPONENT
IDEAS
OF
FASCISM
An inquiry into fascist theories, whether in the juristic, politi-
cal
or
economic fields, is a very difficult one. The constantly
repeated claim of fascist political leaders is that they have not
proceeded on any theories at all, that theirs
is
a philosophy of
action and not of words, that they meet each situation as
it
arises, and that theories with them are produced by solutions,
not solutions by theories. After their policy on the particular
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