ADIR - L'altro diritto

ISSN 1827-0565

The history of Rocco Code in the Italian Republic

Sarah Musio, 1999


Usually the urge to change a criminal code follows some major political and social transformations. The Rocco Code, though indubitably consistent with the authoritarian political culture of the years of its adoption, proved in fact to be much more than a 'fascist code'.

The first chapter of the research, analyzing the development and the content of the Code, points both at its liberal and at its authoritarians elements. Legal technicality, a new trend in the criminal reflection, opposed both to the positivist and to the socialist perspectives, was probably the other reason of the longevity of the Rocco code. As described in the second chapter, the institutional transformations in Italy do not lead to the abandon of the Rocco code also because of the very separation of the criminal reflection from the political and social trends: a fundamental feature of Legal technicality. Politics and ideology where not going to rule the criminal reflection, and once purged of its more authoritarian elements, the Rocco code could well remain in force.

And indeed the main reform projects, the legislative interventions and the decisions of the Constitutional Court, as presented in chapter three, do not changed the fundamental structure of the code. For different reasons the changes to the Code adopted from the 50's to the 70's, despite the relevant social transformations of those years, had not the systematic and political relevance required to change its overall feature.

It is only at the beginning of the seventies that a new trend seems to appear. Legal technicality is out of date, the constitutional principles seem now to be able to affect the criminal system and the 'international reform movement' appear to be the new standard: criminal law should become the extrema ratio in criminal policies.

In fact, as shown by the reflection presented in chapter four, this strong cultural trend could not reach the lawmakers. The criminal doctrine was left isolated and its proposals failed to affect the legislator, apparently more interested in the reform of the legal procedure.