The Fascist constitution

Abstract

Although contemporary legal historiography still struggles to talk about a constitution in reference to the fascist regime, the thesis of this essay is that a fascist constitution really existed. And not only because Mussolini’s regime undermined the Statuto Albertino with repeated legislative reforms, but above all because the constitutional solutions adopted by fascism – even if antidemocratic and therefore aberrant – answered to questions that belonged to the juridical debate of the early twentieth century in Europe; respect to which they were not negation, but a sad possible declination. The centrality of the political direction, the prescriptive content of the constitution, the question of its rigidity and the unsolved struggle for primacy between State and constitution, were all issues that questioned the entire European constitutional doctrine after WWI. And even the need to redefine a new balance between individual rights and collective interest must be considered a characteristic topos of that debate. The essay’s conclusions therefore lead to a renewed interpretation of the doctrines of the twentieth-century constitution, based on the marked differences between the elaboration carried out between the two world wars and the one produced, instead, in the second part of the century.