By Christine Lyons

Garfinkel’s Criminal Law in Liberal and Fascist Italy (Cambridge University Press, 2016) recently received the American Historical Association’s Helen and Howard R. Marraro Prize in Italian history or Italian-American relations.

By expanding the “chronological parameters of existing scholarship,” says the publisher, Garfinkel gives readers a “major reinterpretation of criminal-law reform and legal culture in Italy from the Liberal (1861–1922) to the Fascist era (1922–43),” and—with its wide range of sources—the book “explains the sustained and wide-ranging interest in penal-law reform that defined this era in Italian legal history while analyzing the philosophical underpinnings of that reform and its relationship to contemporary penal-reform movements abroad.”

Garfinkel says while the ideas in the book began as a revised version of his doctoral thesis, it evolved into something completely different over time, and was essentially written from scratch as a distinct project. While Italian history and Italian legal studies have had quite a “robust” debate about Italian penal law reform of this period, Garfinkel says Anglo-American scholars have focused almost exclusively on the influence of Italian criminologist Cesare Lombroso and positivist criminologists—thinkers whose focus was on biological factors to explain criminal behavior. The positivists influence was, according to Garfinkel, overemphasized and created a “skewed picture of Italian legal culture” wherein “most or all penal jurists were either positivists or heavily influenced by them.”  

With this “discrepancy between influence and lack of imprint,” Garfinkel set out to “expand the field” and did so in three ways. “I decided to examine the ideas, debates, and contributions of a much wider cross-section of Italian jurists (most of them not positivists); second, I went further back in time than 1876, when most scholarship tends to begin the discussion (coinciding with Lombroso's seminal work Criminal Man), drawing on both Napoleonic and other bodies of pre-unitary Italian law (that is, prior to unification in 1860); and third, I expanded the field by examining Italian penal-law reform in a broader transnational context.”

It was this transnational context that really helped to made Garfinkel’s book stand out. Since most of the previous scholarship had been not only "Lombroso-centric" but also "Italo-centric," Garfinkel’s widening of the scope to be “pan-European” showed how Fascist penal law against ordinary crime was, he says “far more transnational in form and substance than it was 'fascist' and Lombrosian, as long presumed.”

The book has been extremely well-reviewed, with several reviewers praising the way Garfinkel looks at the history and evolution of Italian criminal justice not only from a historical perspective but from the perspective of legal studies and criminal law practitioners. Garfinkel says it was a most challenging project but having the mentorship and guidance from experts in legal studies and history was invaluable, particularly from Thomas A Green (who helped slate the project for the Studies in Legal History series at Cambridge) and Michal Lobban (the series editor), both of whom were most critically engaged with the project from start to finish.

Since the book’s publication, Garfinkel has spent time during his sabbatical in Rome, taking the book on something of a “mini book tour” and researching a new project on the legal history of the penal institution of internal exile in Italy. The book tour included, he says, five talks and in-depth panel discussions with Italian legal scholars at several Italian universities throughout Spring 2017, including a lecture at the British School at Rome.

Garfinkel’s new project is on internal exile (domicilio coatto) and—like his award-winning current book—breaking new ground in legal studies of Italy in the Liberal to Fascist period. Internal exile, he explains, was a system that was “run primarily by the police with marginal judicial involvement. It allowed the state to exile or punish criminal suspects of various types who either had never been convicted in court or had been convicted previously and were subsequently put under police surveillance as a post-carceral sanction.”

Focusing on the Liberal period and leading to the rise of fascism in Italy, Garfinkel says most of the existing scholarship on internal exile the has been on the Fascist system of internal exile (confino di polizia) which was introduced in 1926. “In studies on both the Liberal and Fascist systems of internal exile, the focus has been almost entirely on political crime. And in the scholarship on the Liberal system, scholars have tended to centre only on occasional political flashpoints—for example, major episodes of social disorder—they’ll go after the rabble-rousers or those who are making trouble.”

While studies on the Fascist system of internal exile have been “more comprehensive,” Garfinkel says that the main concern has been the repression of political dissent rather than ordinary crime. His research interests on criminal justice and ordinary crime position the current project as a completely new contribution, "with an emphasis on ordinary suspects and criminals--who represented a greater and more enduring concern in the eyes of both police officials and penalists--the new project will be the first comprehensive legal history of the Liberal system of internal exile in Italy."

Most of the archival research is taking Garfinkel to the Central State Archive in Rome, looking at original sources that have never been studied. These include “Interior Ministry police files on individual suspects who were sent into internal exile between the early 1870s and end of World War I.” Garfinkel says that the archival material—which he had discovered and sampled several years ago— includes the personal files of suspects and offenders and totals nearly 4000 files in all. He says it’s truly exciting to work on something so potentially ground-breaking, and that he looks forward to seeing where the next phase of the research will take him.