Italy boasts a distinguished group of legal historians, such as Guido Neppi Modona, Luigi Lacchè, and Floriana Colao, who have spent many decades explicating nineteenth and twentieth century criminal law. The results of their research have not been sufficiently integrated into the grand narrative of modern Italy, perhaps because these scholars are most often affiliated with law schools rather than history departments. Criminal Law in Liberal and Fascist Italy, therefore, promises to provide a useful guide to this overlooked field. In a work that reaches back to the period of the restoration and ends with fascism, Paul Garfinkel focuses on three issues that were thought to explain the supposedly high rates of crime in Italy: recidivism, juvenile delinquency, and alcoholism. To trace the relevant debates among jurists and members of Parliament, he analyzes not only the two criminal codes of modern Italy—the Zanardelli Code of 1889 and the Rocco Code of 1930—but also numerous more specialized proposals debated in Parliament, only a few of which were ever translated into penal law.

Garfinkel argues that one unified legal approach, which he labels “moderate social defense,” characterized the entire era from the fall of Napoleon until the Rocco Code. He defines “moderate social defense” as a two track system that combined criminal law, based loosely on liberal Beccarian principles, with preventive “security measures,” often enforced by police (13). This approach held wide appeal for members of Parliament, who saw rising crime as a threat to state security. This interpretation is repeatedly juxtaposed to what Garfinkel characterizes as the current historical consensus that “positivists [came] to dominate the Liberal legal order” before World War I and “triumphed” under Mussolini's dictatorship (3–4). He also rejects claims that fascist political ideology shaped the Rocco Code.

In its methodology, this book is an example of “internal” institutional history, in which ideas engender other ideas in a process seemingly untouched by outside forces. Comparably little attention is paid to the markedly different state structures that fostered “moderate social defense” or to factors such as class, race, and gender. Furthermore, Garfinkel mischaracterizes previous scholarship, which has in fact not identified criminal anthropology as the main factor shaping penal law. Legal historians have not characterized the Zanardelli Code in those terms; even Cesare Lombroso himself bemoaned the failure of this major piece of legislation to incorporate his theories. Although some scholars do attribute certain articles in the Rocco Code to the influence of positivist legal thought, the law as a whole has never been characterized as primarily Lombrosian. Instead, historians have documented criminal anthropology's strong impact on institutions outside of the judiciary such as prisons, criminal insane asylums, and the police.

In addition, the concept of “moderate social defense” is so broad as to flatten both the real changes that occurred over time and the sharp differences among jurists in each era. The reader does not learn, for example, of the radically liberal nature of many sections of the Zanardelli Code, most notably the abolition of the death penalty. This measure conflicted with mainstream penal thought in the old regime states as well as under fascism, which reimposed capital punishment. That the Zanardelli Code went through five drafts over 20 years points to the many divisions within a legal community fragmented by theoretical doctrine and political affiliation. Garfinkel does admit that pragmatism, rather than a coherent theoretical approach, underlay the passage of certain pieces of legislation.

Garfinkel's elastic definition of “moderate social defense” becomes most problematic in his insistence that the Rocco Code, and even the 1926 Public Security Law, were not fascistic. Tracing the continuities between the liberal era and Mussolini's dictatorship has preoccupied many historians, and the book legitimately points out instances in penal law. But what does that mean? Rather than proving that the Rocco Code was moderate, this continuity can be read in the opposite way: as a sign of the contradictions and controversies within a prewar legal community that did not succeed in ridding Italy of many repressive measures. A case in point was Italy's unusual policy of domicilio coatto, which allowed police to exile suspected criminals to island penal colonies, with very limited judicial intervention. Declared “moderate” by Garfinkel, domicilio coatto was hotly contested by many liberal and socialist jurists during the 50 years after unification and, indeed, provided a blueprint for the notorious fascist policy of confino that, beginning in 1926, swept up leftists, republicans, liberal Catholics, homosexuals, common criminals, and other “social outsiders” and exiled them to police camps. Although it may be true that the jurists who applauded Rocco were not all fascists, it is imperative, especially today, to analyze how they created a climate conducive to dictatorship rather than to absolve them of responsibility.