1. Introduction
The aim of this article is to introduce an international audience to some of the earliest writings of the Italian constitutional lawyer, Costantino Mortati (1891–1985). Later a member of the Constituent Assembly (1946–1948) and of the Constitutional Court (1960–1972), Mortati was a key figure in the legal and political thinking of the 20th century in Italy. His early works, well-known to an Italian audience yet still removed from the international debate, are especially significant to understand the transition of Italy from the liberal era (1861–1922) to the Fascist regime (1922–1945).
Ever since Giovanni Sartori’s analysis, scholars have been aware of the possibility for authoritarian regimes to use the notion of ‘constitution’.Footnote 1 Basic laws have been reformed or entirely replaced by new ‘constitutions’ in all sorts of illiberal regimes: the assertion that the regime was founded on a nominal ‘constitution’ has often been a strategy to gain legitimacy and public recognition, despite the earlier association of the concept of constitution to liberal systems of government.
In these cases, the separation of powers, which if reasonably well-functioning generates some degree of mutual control and ‘balance’ between the legislative, the executive, and the judicial power,Footnote 2 is fundamentally tilted in favour of the executive, the ‘most dangerous branch’.Footnote 3 Authoritarian constitutions invariably entail a considerable concentration of power in the hands of the executive. To quote Kim Lane Scheppele, ‘[l]oosening the bonds of constitutional constraint on executive power through legal reform is the first sign of the autocratic legalist’ and ‘[t]he move from hardball democrat to legalistic autocrat is achieved by undermining constitutionally entrenched checks on executive power’.Footnote 4 A growing body of literature has focused on the penetration of authoritarian and executive-dominated elements in several modern legal systems, including some former liberal democracies.Footnote 5
In this article, I examine how Mortati tried to make sense of the far more profound transformation that Italy faced during the fascist era. Between 1931 and 1944, Mortati resorted to an unusual combination of old and new notions to explain the transition. On the one hand, he used the innovative notions of ‘governing function’ and ‘political direction’ to conceptualise the executive-leaning reforms of the fascist era. On the other hand, even at the height of the regime, he kept asserting that the separation of powers still characterised the Italian system, to the point of comparing the considerable strengthening of executive prerogatives under fascism to the rise of Cabinet-based governance in the United Kingdom. In other words, Mortati took stock of the rise of executive dominance in Italy while at the same time maintaining that the country remained a Rechtsstaat based on some degree of separation of powers.
A certain tendency to stick to old formal concepts even in the wake of profound societal transformation is a well-known characteristic of lawyers’ thinking. However, Mortati’s assertion of formal continuity and persistence of separation of powers may also have been aimed at legitimising rather than simply explaining the regime. As we will see later in the article, this is an accusation which, as the downfall of fascism approached, he had to face directly.
The article is structured as follows. I first explain the context of the legal transformation of Italy from 1922 onwards, quickly recapitulating the main steps of the process, and introducing the figure of Mortati in paragraph 2. Mortati’s writings are analysed in detail in paragraph 3. Finally, some thoughts are offered on interpreting Mortati’s early ideas and why he combined new categories with the traditional concept of separation of powers in paragraph 4.
2. Breaking a liberal constitution: the transformation of Italy (1922–1939)
On 31 October 1922, Benito Mussolini was sworn in as prime minister of the Kingdom of Italy, marking the beginning of a brutal dictatorship which lasted for more than twenty years. The fascist era had consequences of the first magnitude for the Italian constitutional system, which was largely bent to the needs of the regime. Here I quicky recapitulate the main phases of this evolution.
The transformation did not happen in a sudden, momentous constituent phase. On the contrary, it was a process which slowly but steadily changed the domestic constitution.Footnote 6
The 1848 constitution, the so-called Albertine Statute, had long been interpreted as establishing a parliamentary regime.Footnote 7 Specifically, the prime minister and the ministers were appointed by the monarch, but by a constitutional convention already established in the 1850s, the lower house (the ‘Chamber of Deputies’) could force the government to resign. The house was elected through a two-round plurality system (with the exception of the 1882–1892 decade). The franchise was initially restricted to the upper echelons of society: for a time, criteria of wealth and literacy ensured that only the upper-middle class was allowed to vote. The ruling liberal elite gradually extended voting rights to previously disenfranchised males. In 1912, the electorate was expanded to all men aged 21 or older who could read and write, and to men over 30 who had completed military service; these rules were first applied in the 1913 elections. Finally, in 1919, universal male suffrage (all men over 21) was introduced alongside a new electoral system based on proportional representation.
In the absence of specific procedures of amendment, the constitutional practice interpreted the Statute as flexible. This made the overhaul of the system possible via ordinary legislation. Already in 1923, a new electoral law granted a two-thirds majority to the largest party. As fascists intimidated supporters of rival parties and manipulated the 1924 general elections, this new law secured them full control over the Chamber of Deputies. Slightly afterwards, two Acts significantly enhanced the powers of the Prime Minister, renamed ‘Head of Government’ (n 2263/1925), and of the government (n 100/1926), conferring wide legislative and regulatory powers to the executive and depriving the Parliament of any power of oversight on the executive. In 1926, the remaining representatives of the opposition lost their seats in the Chamber of Deputies as they were declared disqualified: what remained of political pluralism was suppressed for good. A special Tribunal to adjudicate political crimes was also constituted in 1926. By 1929 the Fascist Party had decisively entered the Italian constitution as two Acts (n 2693/1928 and 2099/1929) made the main organ of the Party, the Grand Council of Fascism, a public institution. The Grand Council was the body which had reunited the main leaders and officers of the Fascist Party since 1923, but the reform made it part of the Italian state. After 1929, the Grand Council enjoyed several advisory powers, especially in constitutional areas: all legislation concerning the composition and powers of the Parliament and of the executive, unions and corporations, and relations with the Catholic Church had to be discussed in the supreme assembly of the Party before being reformed. Moreover, according to yet a new electoral law (1928), lesser organs of the Party were to propose lists of candidates to be then examined by the Grand Council and later exposed to a plebiscite (only a yes-or-no to the single list of fascist candidates was allowed). Many candidates came from ‘corporations’ (bodies associating workers and employers by profession), the main link between the Party and the civil society and a powerful tool to break unions. Finally, in 1939 came the repeal of the Chamber of Deputies, substituted by the Chamber of Fasces and Corporations. The new Chamber was now plainly unelected, as membership depended on being a high-ranking party or corporation official and did not actually hold the legislative power, but merely cooperated with the executive in drafting legislation.Footnote 8
At the end of the process, the Italian form of government had changed decisively. Yet, the regime often reformed the existing institutions, bending them to its needs, rather than getting rid of them for good: the Crown, the House, administrative bodies like Ministries, ordinary and administrative courts, were all preserved.
To a certain extent, some institutions of the previous era kept a certain amount of autonomous power: specifically, the Crown remained in principle capable of removing Mussolini from office and commanded the separate loyalty of the army.Footnote 9 The fascist regime never reached the unfettered degree of control over the state and society that other totalitarian experiences were able to achieve during the 20th century, and when the time came in 1943, these royal prerogatives would indeed contribute to Mussolini’s eventual downfall.Footnote 10
Still, these were exceptions. For the most part, the institutions of the liberal era were transformed into empty shells and bent to the desires of the regime.
The lawyers of the day thus found themselves in a progressively unfamiliar environment. How to make sense of this deep transformation and what role were the lawyers supposed to play under the new regime?
There was no unified response to these questions, but several different stances.Footnote 11
Some areas of law, especially private law, remained relatively untouched because of their technical and abstract nature and because of the deep ‘conservatism’ of judges and practitioners: these were reluctant to dismiss their centuries old notions and institutions.Footnote 12
Public lawyers, on the other hand, were more affected. As the authoritarian regime tolerated little opposition, they could hardly criticise the ongoing change, even assuming they were willing to. A large group run away into formalism: by exploiting the formal persistence of bodies and institutions of the liberal era, they tried to show continuity between the old and the new.Footnote 13 This allowed them to separate the everlasting and purely juridical form from the contingent political substance. For instance, ordinary laws, now largely lacking support by a democratically elected assembly, could be seen by lawyers as equal to their predecessors because they still had the ‘form’ of legislation (approval by a reformed ‘Chamber’, royal assent, and ranked on top of the hierarchy of norms). Formalists could thus operate as if mere reforms rather than a ‘constitutional revolution’ had happened.
Other lawyers recognised and even endorsed this revolution: they actively tried to formulate new notions and concepts to explain and justify the deep changes to the structure of the state.Footnote 14 They were, so to speak, the lawyers of the regime. One of Mortati’s advisors, Sergio Panunzio, belonged to this group.
Finally, yet another group, often made up of younger lawyers trained during the fascist era, tried to do both: keep using the concepts of the liberal era (the separation of powers, the guarantee of rights, the centrality of parliamentary legislation) to explain the functioning of the regime, but at the same time elaborate new notions when necessary. Mortati, a key figure to understand the uncertainties of Italian public lawyers of the time, belonged to this last group.Footnote 15
Mortati was a long-lived and very influential lawyer,Footnote 16 with a substantial impact on Italian constitutional law.Footnote 17 His tripartition of territory, people, and sovereignty, for instance, is still today the standard way for Italian lawyers to understand the constitutive elements of the state.Footnote 18 Apart from being a scholar, he was elected to the Constituent Assembly in 1946 among the Christian-Democrats. He was a member of the inner committee that prepared the draft of the constitution, which the plenary then revised.Footnote 19 From 1960 to 1972 he also served as a judge in the Constitutional Court.
Thus, Mortati was not only a jurist of the regime, but also a ‘father of the constitution’, a judge, and an influential scholar whose views evolved as time went by.
It is on the first phase of his thinking that I focus here. The main object of analysis is the monograph L’ordinamento del governo nel nuovo diritto pubblico italiano (‘The government in the new system of Italian public law’, 1931),Footnote 20 Mortati’s first book and a major attempt to conceptualize the transition from the liberal to the authoritarian state. More limited space is devoted to a later academic article, Esecutivo e legislativo nell’attuale fase del diritto costituzionale italiano (‘The executive and the legislative in the current phase of Italian constitutional law’, 1941)Footnote 21 and to a post-war exchange with the prominent Christian-Democrat politician Mario Scelba.
This emphasis on the first decade of Mortati’s academic life marks a departure from the current literature: a series of recently published essays and book chapters in English, by both Italian and foreign scholars, has focused on another one of Mortati’s major contributions, namely his book of 1940 La costituzione in senso materiale (‘The constitution in a material sense’).Footnote 22 There, influenced by legal institutionalists like Maurice Hauriou,Footnote 23 Santi Romano,Footnote 24 and even Carl Schmitt,Footnote 25 Mortati engaged with the rise of political parties as the key institutional actors of the time.Footnote 26
The phase I would like to focus on, however, partly predates the idea of the material constitution. For foreign lawyers it is a still unexplored period in Mortati’s thinking. Yet, it is also a crucial one. It was the phase in which Mortati, as already mentioned, tried to conceptualise the shift from the liberal to the authoritarian state and the coexistence of elements from the former and from the latter: was the ongoing transformation an evolution of the previous liberal regime or was it better to think about it as an entirely different form of government? In the next paragraph I look at how he understood the transformation of Italy in his writings.
3. Governing function and political direction in Mortati’s early writings
We can now examine the already mentioned ‘The government in the new system of Italian public law’ (1931) and ‘The executive and the legislative in the current phase of Italian constitutional law’ (1941). At the end of this paragraph, I also briefly expose the contents of a revealing exchange between Mortati and Scelba of 1944, when fascism was on the brink of collapse.
A. ‘The government in the new system of Italian public law’ (1931)
‘The government in the new system of Italian public law’ was Mortati’s conceptualisation of the changes that the Italian form of government had experienced since 1922. As mentioned, Italian public lawyers were struggling to understand whether what was happening was a legal revolution or a mere reform of the state.Footnote 27 The monograph exposes Mortati’s views on this issue: as anticipated, he made use of both concepts of the foregone liberal constitution (especially that of separation of powers) and of new notions, tailored on the novelties of the time (in particular, the concepts of ‘governing function’ and ‘political direction’).
The book was structured in two parts. To begin with, a conceptual framework to analyse the changes in Italian public law was introduced: this exposition of Mortati’s constitutional theory is particularly interesting to our aims and I will return to it in a moment. The second and longer part was instead devoted to an in-depth analysis of the transition from the liberal to the fascist state. Various aspects of governmental action were considered: the Head of Government, his relations to the Crown and other governmental institutions (Ministers and Grand Council of Fascism in particular), governmental powers in peace and wartime, internal security, diplomatic relations, special powers in the state of exception, auxiliary organs. Some general concluding remarks were added as a final chapter.
Reverting to the first part of the book, Mortati immediately started with an analysis of the governing function. He drew a line dividing the government from the executive: in Montesquieu’s classic tripartition, the latter was meant to execute, to enforce legal commands. However, modern states were also characterised by a fourth function, namely the governing function. This was meant as the task of identifying a set of political goals that all state powers, despite their differentiation, were meant to pursue together. In other words, while the separation of powers differentiated state bodies by function, the governing function ensured unity by assigning common goals to pursue via legislation, administration and adjudication. Thus, this function of the state identified the main (political) directives to be followed by all the bodies: one institution would perform a function of oversight by choosing the aims that the state will pursue.
The governing function did not coincide in Mortati’s view with legislation: although general directives were sometimes identified through statutes, in other cases, like in the sphere of international relations, the identification happened through other instruments, like treaties or unilateral actions.Footnote 28
More generally, the trias politica dividing between bodies that create (legislative), apply (executive), or adjudicate (judiciary) was unable to explain the power of identifying the basic values of the legal system. To use Mortati’s wording, Montesquieu’s separation of powers did not single out the institution in charge of choosing the ‘political direction’ (indirizzo politico) of the state.Footnote 29 He who oversaw the political direction held the governing function, a power of identification of aims and values that had to be understood as a fourth function of the State.
This theoretical apparatus, and most notably the notion of governing function, is not entirely Mortati’s brainchild. He was influenced by scholars like Rudolf SmendFootnote 30 and the already mentioned Sergio Panunzio, his former mentor.Footnote 31 According to Smend, the main function of the State was integrating individuals in a community of shared authorities, procedures, values and even symbols.Footnote 32 This presupposed the clear identification of the aims pursued by the State to which all the diverse public bodies had to conform. The integration of conflicting social interests via unitary state action is absorbed by Mortati. Panunzio too had stressed the need for coordination of both diverse societal organisations and separate public bodies towards common aims, something that, he asserted, the previous tradition of 19th century constitutional scholars had neglected. Mortati, as Panunzio recognised later, had aptly incorporated and developed this idea in his work.Footnote 33
A crucial difference instead separates Mortati’s governing function from Schmitt’s fundamental political decision: according to the latter, the ultimate choice which defines the identity of a legal order is made once and for all in extra-legal circumstances.Footnote 34 Mortati’s governing function performs its role in ordinary circumstances: it governs the everyday life of people, not merely extreme cases. The power to act in the state of exception does not have a foundational role from this perspective, but only a remedial one (it will preserve the political direction of the state in case of danger).Footnote 35 Moreover, the content of the political direction can change: ‘integration’, ‘political direction’ and ‘governing function’ are dynamic concepts, conceived to conceptualise changes in society the time.Footnote 36 On the other hand, once set Schmitt’s constitutional identity would require an act of constituent power to be changed.
What Mortati tries to describe was not a purely political power of direction, a mere identification of general goals with no binding effects. It was a legal power, and it performed its role through juridical acts: ‘act’ was meant as a (usually written) binding expression of will from a public body. Mortati had in mind a series of juridical acts which included primary legislation and secondary regulation, but also interpretive statements, appointments and dismissals of hauts fonctionnaires, budgetary powers, committees’ evaluations and opinions, annulments and overruling of administrative acts by superior offices.Footnote 37 Altogether, these ‘acts’ instantiated the governing function.
Mortati was careful in explaining the specific characteristics of the acts of government: he echoed a distinction between acts of government (actes de gouvernement) and acts of mere administration drawn by the French Conseil d’État during the 19th century.Footnote 38 The two groups were not different in form, but in scope and motives: the former were political in nature.Footnote 39 One could not predetermine what would count as an act of government: the same act may or may be one depending on whether it was enacted by the governing body or not.Footnote 40
The political nature of an act is hard to define. In some cases, it is more evident: the head of state’s decision to dissolve the legislature, for instance, typically is a political act. In other circumstances, the line is harder to draw. Take, as an example, a relatively recent judgement by the Italian Constitutional Court: according to the Court, the power enjoyed by the executive under Article 8(3) of the current Constitution to reach an agreement with representatives of religious groups, is an act of government (atto politico).Footnote 41 This includes the power to even refuse starting talks with the association representing atheists and agnostics in the country (UAAR).Footnote 42 The executive’s decision to start talks with religious minorities is less clearly a political act than the President’s dissolution of the Chambers. Still, as long as it identifies the political direction of the legal system, it is an act of government, rather than the mere execution of a preexisting directive. Indeed, Mortati maintained that political acts were not administrative acts, in which the enacting authority performs a merely executive function, applying an already determined content: to him, governing meant more than merely executing and acts of government regarded the free identification of the aims of the state, while mere administrative acts only concerned the means to reach already determined aims.Footnote 43 The acts through which the governing function was performed were inherently political.
Consequently, Mortati also claimed that acts of government were exempt from review by other public bodies: if they were object of review, the governing function would move to the reviewing body.Footnote 44 That acts of government would be exempt from judicial review was at the core of the concept of actes de gouvernement since its inception in French law. However, by inserting the governing function in the picture, Mortati generalised the lack of review to all other powers: the conceptual impossibility of mechanisms of review was not a feature of administrative acts adopted by bureaucracies alone, but a general characteristic of the acts of the governing body, be it a parliament, the executive, the monarch, or anyone else. Also, Mortati ordered the branches hierarchically, with the governing body on top and the others following this lead.Footnote 45
In Mortati’s view, in every state a single institution would necessarily hold the function of government and determine the political direction. The institution holding the ultimate power of political direction could in principle be composite, but only if its components were ‘homogeneous with each other and if, even within such a complex body, the different wills are graded differently, so that one is placed as prevailing’.Footnote 46
Thus, no state ever had a proper equilibrium between powers. Even the classic parliamentary systems born in the 18th and 19th centuries were inevitably dominated by an institution performing the governing function, the parliament itself, in his view. In classic parliamentary systems the monarch was progressively deprived of his governing function, and this shifted to the assembly.Footnote 47 This was, in turn, the longa manus of the emerging bourgeoisie of the early industrial age.
Crucially, Mortati pointed out that the age of parliamentary dominance was well over in 1931. The emergence of new social groups and of mass political movements heralding conflicting social needs had irremediably disrupted the social homogeneity of the 19th century assemblies. With the twilight of bourgeois parliaments and the advent of parties representing irreconcilable constituencies, new institutions were needed to reconcile them. What followed in Mortati’s view was the rise of the executive as the holder of the governing function: only the executive, from his point of view, was able to effectively address the various demands coming from a more composite society.
To exemplify this shift of the governing function from the legislature to the executive, Mortati briefly considered the evolution of the British form of government between the late 19th and the beginning of the 20th century, arguing that the rise of mass-parties in Britain entailed a direct link between the prime minister and the electors. The House of Commons lost the governing function in favour of the Cabinet: the latter now received a strong mandate directly from the voters and based on a coherent manifesto. The majority in the House, in turn, received from the Cabinet directives on how to implement it: unitary political direction came from the latter and was simply applied by the former. The royal opposition had mere functions of control. This was a total reversal of the 19th-century purely parliamentary form of government, in which the political direction was up to the House. The Cabinet was in that era a mere executive body of Parliament, while by the 1930s it was a proper government. In Mortati’s view, the British constitution had therefore solved the issue of unity in political direction by strengthening the Cabinet and its leader.Footnote 48
Mortati also described the French Third Republic, in which the governing function remained in his view in the hands of the Parliament (and of its extremely fragmented and weak majorities).Footnote 49 Weimar’s Germany too was considered by Mortati as an example of parliamentary governing function, despite the emergency powers of the President.Footnote 50
The rest of the book was a detailed analysis of the Italian government after the already mentioned reforms of the 1920s, and of the decisive strengthening of the executive in Italy. This meticulous scrutiny is beyond the scope of this paper, and I will not summarise it here. We are more interested in the last chapter of the book, in which a few general conclusions on the new system of Italian public law were drawn.
After the deep transformation of the 1920s, in Mortati’s view the governing function had moved away from the institutions of the liberal era and concentrated into the hands of the Head of Government. As in the UK, the executive was now the core of the state: it identified the political direction and had a direct link with the people. Differently from Britain, however, this link was not represented by the election of the supporting majority in the Commons, but rather by the ability of the Head of Government to understand, interpret, and harmonise the needs and will of social forces. Elections were now plebiscites approving the list of the only remaining party, the Fascist party, to the lower House. Through plebiscites and through a variety of organisations connected to the party (corporations in particular), the new system of government linked the head to the body, the Duce to the people. Of course, the titanic task of being Head of Government could only be performed by someone endowed with ‘superior political abilities’: only an extraordinary, miraculous leader could be Head of Government. Mortati, who had carefully avoided political irrationalism in his analysis, was ultimately forced to end his book by depicting a Schmittian figure, a political sorcerer performing the miracle of restoring unity by reconciling opposing social interests.Footnote 51
Here one can see how Mortati managed to navigate in between the legal formalists of his time, who kept using the notions of the liberal era to explain the transformation of Italian law, and the lawyers of the regime, who urged for the creation of a new public law. On the one hand, the liberal theory of the separation of powers was still used by Mortati to describe the context of fascist Italy. On the other hand, he also theorised a fourth function besides the three classic ones (governing, together with legislating, executing and adjudicating) and saw the shift of this fourth function from the parliament to the head of government as the defining trait of the age. Old and new notions complemented each other.
B. ‘The executive and the legislative in the current phase of Italian constitutional law’
Most of the views expressed in Mortati’s monograph of 1931 were iterated in ‘The executive and the legislative in the current phase of Italian constitutional law’, first uttered as a public speech in Macerata in 1940 and later published in 1941 as a scholarly article.
By that time, the legal context had changed again, in particular because of the dissolution of the Chamber of Deputies, substituted by the unelected Chamber of Fasces and Corporations (1939). Indeed, the essay started with Mortati wondering about the consequences of this reform for his usual target, the separation of powers: did it entail the repeal of the separation in Italy? Not quite. In Mortati’s view, there still was room for a differentiation of functions between constitutional bodies in fascist Italy, and even the need for a certain degree of independence. The very ‘essence of the fascist state’ (verbatim) lied in the attempt to reconcile some degree of recognition of individual rights with the general interest as determined by the supreme bodies of the state.Footnote 52 Thus, the total collapse of separation of powers would be incompatible with the goals and essence of the fascist regime. The reform of the Chamber and the new power of the Head of Government to indirectly appoint and dismiss its members was not enough to consider the independent legislative as definitively erased from the system, as the latter still participated in the elaboration of legislation and its decisions were not directly conditioned by the executive.Footnote 53
The Head of Government held the governing function and was beyond any doubt the dominating figure, but other constitutional bodies existed and cooperated with him. Common ideological adherence to the Fascist Party and the power of the Head of Government to identify the political direction allowed to blend the activity of other constitutional bodies (especially the Chamber of Fasces and Corporation and the Grand Council of Fascism).Footnote 54
Again, with a certain degree of formalism and fictionalism, Mortati ended the essay by firmly reasserting that some version of the separation of powers was therefore still preserved in the new system:
The conclusion that can be drawn from the investigation undertaken is that the principle of the separation of powers can only be implemented and become effective insofar as there exists, and is reproduced as faithfully as possible in the legal order, a social structure that is both complex in its composition and relatively homogeneous in the political aims that inspire it. From this point of view, the fascist regime created the best conditions for a fruitful application of the principle itself and for the achievement of the purposes connected with it; purposes that consisted in preventing the abuses inherent in the concentration of functions in the same hands, and in ensuring that the ordinary action of the state was carried out with respect for the limits, both formal and substantial, set by the legal order.
Of all modern one-party regimes, the Italian is the only which also preserved in its organisation the essential elements of the modern state, the only able to reconcile the need for quick and unitary state action and the variety of mechanisms through which this is put into practice, and so to realise a transformation that has been called a conservative revolution, in which the genuinely Roman political wisdom of its creator is reflected.Footnote 55
This was, in the end, the result of Mortati’s reflection: the concentration of powers in the hands of the executive (rectius, the government) was embraced to tame social pluralism and the threat this represented for the unity of the state. In Mortati’s view, Cabinet dominance in the UK and fascist authoritarianism in Italy were different responses to a common problem.
C. Mortati’s correspondence with Mario Scelba (1944)
‘The executive and the legislative’ would be discussed in a later exchange between Mortati and a prominent Christian-Democratic leader of the post-war era, Mario Scelba. Later a controversial Minister of the Interior (1947–1953) and Prime Minister (1954–1955), in 1944 Scelba was the powerful vice-secretary of the Christian Democratic party. In this capacity, on December 26, 1944 he addressed a letter to Mortati, who had just applied for party membership.
Before possibly approving his application, Scelba asked for clarification concerning Mortati’s writings. Scelba’s questions largely focused on ‘The executive and the legislative’ and specifically on some lines, like those mentioned just above, in which Mortati seemed to approve of the fascist organisation of governmental powers.Footnote 56
Mortati answered with a defensive letter, arguing that he had always tried not to comment on the organisation of the fascist state and that, when he did, like in the essay under discussion, he provided the most restrictive possible interpretation of the powers of the executive. In his letter to Scelba, in other words, Mortati presented what might have been an analytical point, the observation that the fascist regime had largely shifted the balance of powers towards the executive without totally removing the other institutions, as a normative one, a hidden form of opposition to the regime.
Also, Mortati asserted in his letter that the essay had to be read together with his monograph of 1931, insofar as it described a series of reforms responding to the social needs of the time, similar to those adopted in other countries, and destined to survive the end of fascism. Mortati was referring here to the centralisation of power in the hands of the head of the government, his supremacy over the other members of the cabinet, the disentanglement between the governing function and the monarch, and finally, to the diminution of the powers of the parliament, something which Mortati ‘still deemed true today, although in the sense that these powers must be limited via a larger role for the instruments of direct democracy’.
It is hard to tell whether this was a long-lasting personal conviction or simply an ex-post rationalisation of his writings which better fitted the political needs of the moment. In late 1944, the political climate had changed enormously and several jurists who had been prominent figures during the fascist era had come to abandon their previous views and moved towards new political groups, especially because of the military catastrophe the regime had led the country to. Mortati, too, seemed to have significantly changed his mind on the events of previous decades.Footnote 57 Although he kept interpreting the transformation of the executive as the one long-lasting legal innovation of the regime even in the wake of its downfall, he was also particularly keen to stress his enduring analysis of the regime in terms of separation of powers. This ambiguity was useful to distance himself from the accusation of possibly having been a lawyer of the regime.
4. Conclusion
In this article I have examined the explanation given by Mortati to the transformation of Italian public law during the fascist era, one which involved a colossal shift of power from other constitutional actors, especially the legislature, to the executive and its leader.
Perhaps the most interesting conclusion one might draw is that in Mortati’s analysis both new and old notions coexist as lenses through which exploring the transition.
On the one hand, Mortati developed the innovative notion of ‘political direction’ to denote the power to dictate a coherent set of global aims to be reached by all public bodies. Once the political direction had shifted to the executive, the latter transmogrified into a governing power: a proper function of governing substituted the old task of executing the directives of the legislature.
These new notions, political direction and governing function, share a common flavour: they describe reforms which sought unity over division. The singling out of a leading institution in charge of identifying common social goals beyond partisan divides was in Mortati’s mind the solution given in Italy to the social fragmentation of the early 20th century. So did the new function of ‘governing’ in the hands of the domineering executive of the 1920s and 1930s. The way in which the executive obtained these powers and the distribution among social actors of burdens and benefits which resulted from its actions were left out of the picture. What mattered was the building of a solid constitutional structure which would ensure unity.
On the other hand, however, Mortati insisted on the persistence of at least some degree of separation of powers in the Italian public law of the 1920s and 1930s. This is surprisingly formalistic: the remainders of the liberal system in the fascist era were limited to the point of being immaterial, and it would have been more accurate to define Italy as a full-fledged authoritarian regime, with only a thin façade of constitutionalism. As previously mentioned, some autonomous power outside the Fascist party existed, in particular the Crown, and the regime never became a proper totalitarian system. Yet, it seems excessive to argue that fascist Italy was really similar to a liberal system based on the separation of powers. The fascist legal system was more authoritarian than constitutional.
Then why would such a perceptive jurist insist on form over substance not only in 1931, but even more perplexingly in 1941?
One explanation may lie in the attitude typical of lawyers to preserve previous categories to interpret current events: relics from the past existing in name only often haunt the minds of jurists like eerie spectres.Footnote 58 Still envisaging some separation of powers in the Italian system of 1940 was remarkably close to chasing a ghost.
However, and besides such general cultural trait, two other explanations are possible too, both revealed in Mortati’s exchange with Scelba in 1944: either a hidden attempt to give the reformed system the most liberal possible interpretation, as Mortati himself argued in self-defence, or on the contrary an implicit legitimisation of the regime via a patent of ‘constitutionality’. The latter is the accusation that Sartori, from whom we started, made against an entire generation of scholars:Footnote 59
when the time of trial comes, one discovers that what the ‘pure’ jurists have really been doing – under the shield of their juridical indifference to meta-juridical matters – was to pave the way for allowing unscrupulous politicians to make a discretionary use of power under the camouflage of a good word
Whether or not Mortati was sincere in his reply to Scelba is probably a question that cannot be answered with complete certainty. However, the effect of his writings, whether intended or not, seems to have been to justify rather than restrain the regime. The association of the venerable notion of separation of powers to the innovative idea of a political direction conferred stability and continuity to the transition, a cloak of reassuring constitutional legality.
Even the comparison made in 1931 between the Italian reforms of the 1920s and the growing power of the British Cabinet seems not only questionable, given that Britain was still a democracy at the time, but also indirectly useful to the regime. By qualifying the Italian regime as germane to the Westminster model, the international prestige of the latter would extend to the former.
As a result, Mortati’s understanding of the fascist era is paradigmatic not only of the cultural tendency of lawyers to blend new ideas and old relics, but also of the legitimising power which legal scholarship, willing or not, often has.
Acknowledgements
An early version of this article was previously published as Orlando Scarcello, Authoritarian Constitutionalism: an Oxymoron? The Case of Costantino Mortati’s Early Writings (1931–1940) Jean Monnet Working Paper 3/21 – NYU School of Law. A heartfelt thank-you goes to Nicola Lupo, Rafał Mańko and Nausica Palazzo for their comments on the early draft. Thanks are also due to Fulco Lanchester and the Fondazione Paolo Galizia in Rome for their support, and for granting access to the archive of Costantino Mortati. Finally, special thanks also go to all the participants of the Authoritarian Encounters symposium, as well as to the reviewers of the European Law Open. The author is an affiliate member of NOVA School of Law (NSL) and of Research & Development Centre on Law and Society (CEDIS), Universidade NOVA de Lisboa (UNL), 1099-032 Lisbon, Portugal.
Competing interests
The author has no conflicts of interest to declare.
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