During his discussion on “Criminology and the rise of authoritarian criminal law (1930s-1940s),” Michele Pifferi offered a nuanced look at the relationship between criminological theories and the advent of the fascist and Nazi penal systems.
Beginning with an introduction of the historical discourse surrounding criminology and authoritarianism during the 1930s and 1940s, Pifferi took particular interest in the connections made by criminologists of the era between positivism and authoritarian criminal law. Citing fascist criminologist, Enrico Ferri, he identified the similar theoretical notions underpinning both positivist criminology and fascism. In particular, he emphasized the positivist concept of the right of a society to be protected from crime, also known as social defense, and its appeal to fascist thinkers due to the ideology’s ‘cornerstone’ of ‘the primacy of state over the individual.’ He also noted Ferri’s observation that fascism was able to implement reforms that positivist criminologists had failed to achieve, including the notion of ‘prevention over repression.’
Pifferi was cautious not to attribute the formation of fascist and Nazi penal code theory to criminology, and made clear that certain positivist concepts, including indeterminate sentencing, had also been implemented in non-authoritarian governments. Importantly, he observed that the implementation of a penal measure by an authoritarian government does not make the measure itself authoritarian. However, he did note that the existing systems of penal liberalism were ‘undermined’ by criminological thought, as elements of the criminological school played a role in crippling key liberal concepts, such as individual guarantees in the legal system.
Perhaps most uniquely, Pifferi linked positivist criminology to the erosion of constitutional separation of powers in the fascist and Nazi regimes; a development that he argued is ‘the less visible but most problematic outcome of the criminological movement.’ While authoritarian legislators did not implement positivist thought in its original conception, but rather in ‘distorted’ forms, positivist concepts including social defense and penal individualism led to an extraordinary amount of discretion placed in the hands of judges. Pifferi believes that these concepts so weakened the separation of powers that criminal law systems were primed to succumb to the rise of authoritarian regimes.
Pifferi’s discussion raises some intriguing questions. Is it fair to claim that the application of criminological ideas assisted the rise of authoritarian power, or could there instead have been a coevolution of ideas? Is it safe to adopt a criminological theory that places the focus of crime on the individual? Or can such theories lend legitimacy to politically motivated ideas of who should be classified as a criminal?
Ultimately, Michele Pifferi’s work is a stark reminder of the onus of responsibility that criminologists bear. Working in a critical subject area that significantly impacts society and its citizens, we have a responsibility to remember the power of our ideas, and the ways in which they may be interpreted and implemented by those in power.
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