“On a legal level, a common ‘Weltanschauung’ never existed”

Interview with Ferdinando Mazzarella about the Committee for Italian-German legal relations

In the 1930s, Fascist Italy under Mussolini and National Socialist Germany agreed on closer political cooperation and entered into a military alliance as the so-called Axis powers at the start of the Second World War. A lesser-known fact is that the two countries also endeavoured to form closer ties in the field of law. Legal historian Ferdinando Mazzarella investigates the activities of the ‘Committee for Italian-German legal relations’ at the Käte Hamburger Kolleg. In this interview, he talks about his research and explains how ideological differences between Fascism and National Socialism also affected the field of law.

Professor Mazzarella, from 1937 onwards, German and Italian lawyers collaborated to bring the National Socialist and Fascist legal systems closer together. What led to this?

The relations between German and Italian lawyers were traditionally based on exchange and comparison, but what happened in 1937 was something completely new: the beginning of an institutional collaboration, which had clearly political grounds and aims. On November 2, Reich Minister Hans Frank and Italian Justice Minister Arrigo Solmi inaugurated a Committee for Italian-German legal relations (“Arbeitsgemeinschaft für die deutsch-italienischen Rechtsbeziehungen”), with the aim of promoting the development of the law of the two countries “nach den Grundsätzen der nationalsozialistischen und faschistischen Weltanschauung” (Art. I of the Statute). The Committee was founded one year after the creation of the “Rome-Berlin Axis” and preceded by a year the cultural agreement of 23 November 1938, which expressly confirmed the role of the Legal Committee in Art. VII. In the context of the new political-military alliance, the National Socialist and Fascist governments assigned lawyers the task of building a bridge between the dictatorships. They used the law to cement in an ideal union the destinies “der beiden entscheidenden Revolutionen des 20. Jahrhunderts”, as Frank rhetorically hoped in the inaugural session of the Committee; to demonstrate an alleged harmony between the two “parallel revolutions”, as the new Italian Minister of Justice, Dino Grandi, declared in 1940.

The two ideologies of Fascism and National Socialism certainly have many similarities, but also differences. What obstacles did the lawyers encounter?

Fascism and National Socialism fall into the same historical-theoretical category of totalitarianism. This obviously does not mean that the two ideologies are the same. Hannah Arendt considered the two regimes so different, especially with regard to the role of the party and the aims of the movement, as to exclude the possibility that Fascism was true totalitarianism. Certainly, on a legal level, a “nationalsozialistische und faschistische Weltanschauung” never existed, despite the statutory formulas of the Legal Committee and the triumphalist declarations of politicians. The similarities between the two ideologies ended in a generic program of revolutionary rupture, consisting of a catalog of antagonistic theses: both regimes declared themselves anti-liberal, anti-democratic, anti-Bolshevik, anti-parliamentary, anti-individualist. 

Even the lawyers of the time were widely aware of the differences. In 1936, returning after a travel to Italy, Carl Schmitt explained that there were profound ideological differences between fascist Italy and Nazi Germany, which traced a clear line of demarcation between two different “Weltanschauungen”. Italy was not interested in the racial issue, which was instead the basis of National Socialist “völkisch” law. It also kept faith with the statist “tradition”, relaunching the primacy of the State over every other political element, including the people, who were instead the sole source of National Socialist law.  The well-known disagreement on the value of Roman law, which the Germans considered foreign and impure law, while for the Italians it was a model of harmony, was only the tip of the iceberg. From the ideological differences came divergences in all important legal issues: the distinction between public law and private law, the value of the individual, the nature of the contract, the role of the judge, the meaning of the law, the idea of ​​the Code, the conception of the state and the constitution.

How did these ideas of state and constitution differ? 

Both Fascism and National Socialism became in their own way interpreters of a new constitutional culture, in search of a principle of political unity that would govern the particularism of mass society. Based on their respective ideologies, they developed different constitutional doctrines. The fascist ideology was statist, corporatist and legalistic. Fascism aimed to overcome the crisis of the State through the State, relaunching and strengthening the myth of the State; a corporate state, capable of mediating between conflicting interests, fully realizing the “moral, political and economic unity” of the “Nation”. The National Socialist ideology was instead “völkisch”, racial, judicial. The State was nothing more than a means to an end, which consisted in the preservation and realization of a «Volksgemeinschaft» founded on the homogeneity of blood and race. For Fascism, law was the product of the political will of the State, which was articulated in a hierarchy of formal acts, from statute laws to corporate rules to collective agreements. For National Socialism, law was the “Ordnung des völkischen Gemeinschaftslebens” itself, a set of substantial “values” (“Volksempfinden”, “Rasse”, “Sippe”, “Ehre”, “Blut”, “Boden”, etc.), interpreted widely by the judges and ultimately by the Führer.

Can you give an example of a fascist law that reflects this corporatist spirit?

More than a law, I would remember the thirty Declarations of the Labor Charter of 1927, which fascism elevated to constitutional principles of the State in 1941. The Charter recognized the particular interests of individuals and groups, which however had to be harmonized through the instruments of the corporatist state: collective labor agreements, corporation standards, magistracy of labor, mandatory state rules. Placed before the Civil Code of 1942, the principles of the Charter spread to private law, subjecting property rights, contractual autonomy, employment relationships and economic transactions to the principles of “corporatist solidarity” and distributive justice.

Did the Committee achieve a result? 

No more than the normal results of a high-level scientific collaboration. Italian and German lawyers met in two conferences, in Rome in 1938 and in Vienna in 1939, where they discussed numerous topics, mainly private law. At the end of both conferences, the delegations approved joint resolutions, which symbolized the harmony of the two allies, but which in reality hid days of discussions and disagreements. 

Meanwhile, lawyers from both countries worked on their respective codification projects. The Italians completed the work begun in the aftermath of the First World War, grafting the solidaristic guidelines of corporate ideology onto the individualistic body of private law and thus arriving at the Civil Code of 1942, still in force. The Germans worked on the project of a “Volksgesetzbuch” (VGB), started in 1939 by Frank with the aim of replacing the BGB with a Code that directed the daily life of the “Volksgenosse” according to a “völkisch” law of blood and race. The attempt foundered in the summer of 1944, together with Hitler’s pan-Germanist dream.

What is your approach to the investigation and what sources are you working with? 

My approach is historical-comparative. And I insist in particular on the historical aspect, because a mere comparison could lead to misleading results. It is necessary to contextualize ideologies, historicize legal solutions, grasp the links between the axioms of ideological propaganda and long-term trends, personalize the intellectual path of each lawyer. All this also with the aim of understanding how much of the ideology of the regimes was realistic and historically plausible, and how much was the result of delusional nationalist and anti-Semitic claims. To this end, I believe that research must take into account sources of different nature: the reports of the Italian-German Committee, the legislation and the preparatory works, but above all the works of lawyers, with particular attention to books and reviews published between 1918 and 1945. A next step would be the judicial rulings, in order to measure the impact of theories on daily life.

Elsewhere, with regard to the current resurgence of authoritarianism, you have claimed that “knowledge of legal history is our peaceful weapon against a new barbarity”. How can legal history protect us from this?

The first quarter of the 21st century has unfortunately confirmed that racism and religious conflicts, imperialist greed and the lust for power, authoritarianism and totalitarianism are not isolated parentheses, but a constant in human history and probably a constitutive aspect of humanity. I fear that knowledge of the history of law can do nothing against those who base their existence on those aberrations. But it can do a lot towards an unaware and indifferent majority, which must know how many sacrifices have been made to affirm the culture of democracy and tolerance, and what consequences derive, for everyone sooner or later, from the denial, at every level, of human dignity. Sometimes I am reminded of the words of the Spanish-American philosopher George Santayana, reformulated by Primo Levi, the Italian Jewish writer who survived a year in Auschwitz:“Those who do not remember the past are condemned to live it again”.

The questions were posed by Lennart Pieper.

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Zitieren als:
Ferdinando Mazzarella/Lennart Pieper: “On a legal level, a common ‘Weltanschauung’ never existed”. Interview, EViR Blog, 31.10.2024, https://www.evir.uni-muenster.blog/en/interviewmazzarella/

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