• Alfredo Rocco

Transformation of the State

Updated: Feb 5


Pp. 327-332 Schneider, Herbert W. Making the Fascist State. New York, NY: Oxford University Press, 1928.


http://mtdaportal.extra.hu/books_kulf/schneider_herbert_making_the_fascist_state.pdf


From the legal point of view there is no doubt that the years 1925 and 1926 mark a decisive step towards the transformation of the state. Undoubtedly also January 3, 1925, marks a principal date in this field. . . . The anti-national reaction of the second semester of 1924 gave fascism the clear feeling that the time had come for it to govern alone and to transform the state or to accept the failure of the revolution. Given this alternative, there could be no doubt of the choice, and Mussolini, with the infallible intuition which comes to his aid in the most critical moments, in his speech of the third of January, which was the necessary complement to the March on Rome and was therefore eminently revolutionary, opened the new phase of the revolution, the phase of fascism's realization and its creation of the fascist state. . . .


Nevertheless the historic value attributable to the third of January, 1925, as decisive in the realization of the fascist state, does not rob the preceding period of change and collaboration of its important reforms. Especially in 1923 a notable work of revision of the legislative order 328 of the state was carried out by the government on the strength of the full powers obtained from Parliament. . . .

From this point of view the first place undoubtedly belongs to the reform of the schools prepared and carried out with rigid coherence and indomitable energy by Giovanni Gentile, which radically changed the whole school system, from the primary schools to the universities and which was not merely a reform of organization and routine but of spirit and method. From the agnostic school, which the liberal democratic state had created, devoid of moral content, without ideal scope, a mere supply store of opinions, arose the school that educates not merely the intellect but the soul, a school with a religious and national content, worthy of the new history of Italy, which is capable of understanding and realizing it... . .


Beside Honorable Gentile's school reform stand the financial reforms of Honorable De Stefani; technical reforms, to be sure, but contributing powerfully to the financial order of the state, and leading to the rehabitation of the budget, the indispensable preliminary of Italian financial and economic reconstruction. Suffice it to recall the revision of taxes, which at last have a definite and organic order, the revision of the law for the general state accounts, which has established an iron control over the expenditures of a government which has come out of the revolution a most cautious and orderly administrator; and finally the reform of the organization of the bureaucratic hierarchy, which gave Italian administration an order perhaps not flawless, but at least an order in a field which for some time had become the favorite field for the activities of private interests and demagogic pretenses.


Lastly we must not overlook the reforms carried out in the administration of justice, among which the most important are those in the organization of the judiciary, especially the unification of the Courts of Cassation, a long-standing aspiration, but never realized because of the insuperable opposition of local interests which the parliamentary regime could not and would not resist.


But after these technical reforms come the political ones. . . . The conquest of the state by fascism necessarily led to its transformation. Gradually but incessantly . . . first in fact and then in law, the fascist state is being formed, totally different in form and content from the liberal state.


I say fascist state and not national state, as some do, for this term is more comprehensive and exact. The fascist state is the state that brings the legal organization of society to its maximum of power and coherence. And society according to the fascist idea is not a mere sum of individuals, but an organism having its own life, its own ends, transcending those of individuals, and its own spiritual and historic value. The state too, the legal organization of society, is, according to fascism, an organism distinct from the citizens who at any given time compose it, and has its own life and its ends higher than those of individuals, to which those 329 of individuals must be subordinated. The fascist state is therefore the truly social state. . , . When one says the fascist state is the national state, one tells the truth about present Italy, which is a national type of society, but not about the Italy of tomorrow nor about present England, France, Japan, and United States of America, for in these cases a fascist state would be an imperial state. . . .


The fascist state has its own morals, religion, its own mission in the world, its own function of social justice and lastly its own economic tasks. Hence the fascist state must defend and diffuse morality among the people; must occupy itself with religious problems and hence profess and safeguard true religion, that is, the Catholic religion. It must live up to the world-civilizing mission entrusted to peoples of high culture and great traditions, which means using all the means of political, economic and intellectual expansion beyond its boundaries. It must enforce justice among classes, prohibiting the unlimited self-defense of classes. Finally it must promote the increase of production and wealth, using, where it is expedient, the powerful spring of individual interests, but also intervening, when it is expedient, with its own initiative. . . .


The fascist state is the truly sovereign state, dominating all the forces existing in the country and subjecting all to its discipline. . . . This theory of the sovereign state is really not new, for the whole legal school of public law professes it. This school has always taught that sovereignty ,is not of the people but of the state, a principle asserted in all the writings of all the teachers of public law, foreign and Italian, and also of our jurists, who then called themselves liberals or democrats in politics, without really raising the doubts implied by the patent contradiction in which they became involved. .


. . Superiority of ends, supremacy of force: these two terms sum up the idea of the fascist state. The whole new fascist legislation tends to realize this conception of the state. . . .


The legislative reforms carried out during the first four years of the fascist government have had a great importance on this internal transformation of the state. I have already noted the decisive value of the school reform from this point of view. In creating a school that educates character, propagates religious sentiment, forms the national consciousness, the state has undertaken tasks which formerly it regarded as extraneous. But no less important are the laws protecting maternity and infancy, and above all the National Work of the Balilla. This great institution is preparing to give a military and national education to our youth, from seven to eighteen years of age, by means of an uninterrupted work carried on in and out of school, which in a short time will radically transform the spirit and character of the Italian people. Thus Italy, by virtue of the War and of fascism, after centuries of indiscipline and indolence, is becoming a great military and warlike people. , The reform of the legal codes, already authorized by Parliament, and at last on the way to realization, will also contribute to giving the state that concrete content which it has hitherto lacked. In the civil and penal codes the state will assert itself as the guardian of morals and of the family. Again in the civil code and in the commercial code the protection of private property, the indispensable instrument for building up savings and the regulation of credit will be regarded as essential state functions. In the civil, commercial and penal codes the political and economic interests of the nations will be strongly guaranteed, as is the duty of the state. In the penal code, the code of criminal law procedure as well as in the law for public safety, the necessity of the repressive and preventive defense of society and the state against crime will find a prominent place and adequate treatment. Lastly, in the code of civil procedure the administration of justice will no longer be considered as a passive function of exclusively private interest, but as one of the highest activities of the state, having the eminently political aim of guaranteeing social peace and of rendering to each his due.


But the reform which in my opinion has most contributed to giving the fascist state its physiognomy and fascist action its concrete social content, is and will remain the reform embodied in the Law on the Legal Discipline of Collective Labor Relations and its related legislative regulations. This law puts an end to the traditional state agnosticism in matters of conflicts between groups and classes, and regards the enforcement of social justice as a problem, which it must resolve in its own realm and by its own forces. By this law the state finally gives a stable order to the relations between groups and classes, facing them in the position of judge and arbitrator, thus preventing one from oppressing another and their struggles from leading to the anarchy, poverty and slavery of the citizens. But besides solving the problem of substituting justice for class self-defense, the new syndical legislation also solves the problem of the organization of Italian society on an occupational basis. The democratic system of atomistic suffrage, ignoring the producer and recognizing only the citizen, though it was able to be of service in destroying the social and political organization of the eighteenth century, which had been surpassed by the social and economic evolution of the times, had no reconstructive virtue whatsoever. . . . When the system had been carried to its extreme consequences and had done its worst damage, threatening to overturn the whole of modern civilization into a universal anarchy, the problem of a reorganization of society, no longer on the basis of the individualistic atomism of the French Revolution, but on the basis of an organic view of society, became imperative. The solution of this problem is one of the most important tasks of the fascist state, and by the Law of April 3, 1926, and the regulations of July first of the same year, it has been resolutely faced, for they organically regulate the whole institution of syndicalism. . . .


And in this connection . . . we must not forget the law instituting provincial economic councils, by which the state is supplied with an adequate means for exercising its economic functions, which it has hitherto lacked, since in the provinces the state was represented by many organs, but was absent precisely in the economic field. . . .


To restore to the state the full exercise of its sovereignty means above all to reënforce the executive power. The executive power in fact is the most genuine expression of the state, the essential and supreme organ for its activity. . . . By a series of legislative provisions the powers of the government are being directly reënforced. To this group of laws belong: the law on the powers and prerogatives of the Head of the Government, Prime Minister, and Secretary of State; the law on the extension of the powers of prefects; and lastly, the law on the institution oîpodestà in municipalities and the substitution of appointive for elective municipal councils. The law permitting the executive power to issue legal norms, thus bridging a gap in the constitution of the Kingdom which was made for a small state in a historic period of slow evolution of economic and social life, gives the possibility of exercising the legislative power in certain cases, even in the field normally reserved for Parliament, to the government, the permanent and supreme organ of sovereignty. . . . By giving the government the power in cases of necessity of issuing norms having the force of laws, the approval of laws is made possible which would never be passed by ordinary parliamentary procedure, on account of the opposition of particular hostile interests. . . . The deepest significance of the law on the powers of the Head of the Government is that it freed the government, by a formal legal provision, from its dependence on Parliament, reconsecrating the principle, already contained in the Constitution but by long traditions neglected, that the Government of the King is derived from the regal power and not from Parliament, and must enjoy the confidence of the King, the faithful interpreter of the needs of the nation.


Thus the elective Chamber becomes what it is, viz., only one of the modes by which the needs and sentiments of the country are made manifest, and not the only and decisive one. In a period when the life of a great people has become highly complex, it is no longer possible to give to electoral representation, based on an atomistic suffrage, an absolute value in the government of the nation. . . .


The fascist state has worked this transformation; it has asserted its own dominion over all the forces existing in the country, coordinating them all, incorporating all and directing all of them to the higher ends of national life. A series of laws reasserts this necessary superiority of the state. To this series belongs the law on secret associations which aims to put under the control of the state all associations that exist in the land, and which aims to be a general regulation, in the most limited and moderate form, of all associations as such, . . . though it has hit especially a particular association, the Masonic orders, which had taken root in the state and which in a thousand ways held fast and dominated it.

To the same class of provisions belongs the law on the press, which aims to restrain one of the saddest spectacles in recent Italian life. In fact an immense force such as the press is, had been built up in Italy claiming the right to remain beyond the law and irresponsible. . . . The press has a high and noble function, but the establishment in the state of a force above the state, uncontrolled and irresponsible, could no longer be tolerated.


And the same thing may be said in connection with the Law on the Legal Regulation of Collective Labor Relations. . . . The phenomenon of syndicalism is an insuppressible aspect of modern life; the state can not ignore it, but must know it, regulate it and dominate it, dominate it with that spirit of absolute impartiality which is characteristic of it, thus being the guardian of the general and supreme interests of the nation and not, as it is regarded by Marxist materialism, the representative of an oppressive class.


Lastly, to this cycle of laws restoring the sovereignty of the state over minor groups, belongs also the law on the legal profession. . . . The professions, even the noblest and traditionally greatest, like that of the lawyers, are but parts of the state organism, have public functions which they exercise in the name of the state, and hence can not be independent of its control. Precisely such a control, within the most careful and discreet limits, has been established by the recent reform of the legal profession.

Thus is being realized Mussolini's formula: ' Everything for the state, nothing outside the state, nothing against the state.' This does not mean, as some claim to believe, the constitution of an all-powerful state, that absorbs and oppresses everything. No, our conception of the state is rather that of a sovereign state above individuals, groups and classes; but with the clear and explicit presupposition that the state must use this sovereignty not to carry on a work of oppression but rather to realize higher ends. In the superiority of its ends, in the fulfilment of its mission of perfecting men morally and civilly, at home and abroad, rests the reason for its superior powers. Thus the power of the state, far from oppressing citizens, is reflected on them beneficently. Citizens were never happy in a weak and miserable state. On the contrary, only by means of the state can a citizen find the paths of his own welfare and fortune."