Policy Papers


The legal profession and social activism: the Italian ‘long 1968’

Maria Malatesta |

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Executive Summary

  • On 12 December Italy commemorated the 40th anniversary of the Piazza Fontana terrorist attack, which started a period of violence between 1968-80, the effects of which continue to reverberate throughout Italian politics and society.
  • Historians and sociologists currently tend to assume that the professional middle classes in Western societies have long abandoned old ideas of public vocation and are only interested in improving their own economic and social positions.
  • However, the processes of social conflict and social change initiated in Italy in 1968 suggest that this is not always so.
  • Academic lawyers connected to the Socialist Party played a leading role in drafting and enforcing the Workers' Statute of 1970, which guaranteed trade-union freedoms, prohibited dismissal without just cause, and protected health and safety in the workplace.
  • The progressive wing of the judiciary took a firm stance against police repression and the muzzling of free expression as public order began to break down after 1969.
  • A minority among the judiciary even became active in enforcing laws protecting the environment, workers' health and safety, and tenants' rights.
  • Meanwhile, radical lawyers were active in the defence of students, workers and leftist militants.
  • Taken as a whole, the activism of radical lawyers had a decisive role in the birth of the 'society of rights' which can be considered the enduring achievement of the Italian 'long '68'.

Introduction

There is a tendency today to recount the history of the modern professions in terms of a perennial struggle of groups and individuals committed to improving their social status, increasing their income, and strengthening their position of power in society. According to this interpretation, professionals are members of the establishment who act on the basis of selfish motivations and have forgotten the ideals and public vocation that should be a fundamental component of their work. Today the professions are accused of contributing to the 'decline of public spirit' which many consider to be the central drama of contemporary Western societies.

Yet this has not always been so. Italian socialist doctors and Russian populist doctors of the nineteenth century devoted their lives to improving the conditions of the lower classes, and American radical lawyers of the 1960s fought to defend civil rights, providing key examples of professionals who detached themselves from the establishment and sided with those who sought to change society. Moments of crisis facilitate the radicalisation of at least some professionals, and 1968 was one such moment also in Italy.

In the countries where the protest movement of '68 was most turbulent, notably the United States, France and Italy, many young doctors, lawyers, magistrates, architects, as well as teachers and academics, joined the protests and chose the route of political commitment. They did so in various ways. They developed critical theories and adopted new practices which helped change society. They sought to change their own professions by eliminating their more traditionalist aspects, and they laid the basis for a new relationship between the professions and society. The processes by which the young in the different professions were radicalized had many features in common, as well as many differences according to the profession and the national context.

The Italian 'long 1968'

In Italy the events of 1968 began a process of change which impacted enormously on a society still marked by authoritarian institutions inherited from the fascist past and permeated by traditionalist cultures. The decade between 1968 and the murder of the ex- Prime Minister and leader of the Christian Democratic Party, Aldo Moro, kidnapped on 16 March 1978 by the Red Brigades and killed after 55 days of imprisonment, displayed a wholly contradictory pattern. A programme of reforms unprecedented in the country's twentieth-century history radically changed Italian society. These reforms were the result of a popular movement of a breadth and depth previously unknown, in which students and intellectuals were decidedly in the minority with respect to the great worker protests that erupted especially in the factories of the industrialized north. But the reforms undertaken by centrist coalition governments under the stimulus of the socialists and the communists had a twofold meaning. They were on the one hand a response to demands from below for a new culture of rights; on the other, they were instruments to curb social conflict.

The reform laws enacted between 1968 and 1978 helped eliminate the legacy of fascist legislation and introduced new freedoms. They were intended to protect the most vulnerable social groups and give them parity and equality (the Workers' Statute, the protection of working mothers, the right to vote at the age of 18); to restore the decision-making powers removed from individuals by the state (divorce, abortion, conscientious objection, freedom to give contraceptive advice); to close mental hospitals (abolished in 1975 by the Basaglia-Ongaro law); finally, in 1978, to extend healthcare to all citizens with the creation of a National Health Service. A reforming wind also blew through the legal order, where the fascist inheritance was even more evident. For the first time, the rights of suspects were protected by authorizing the presence of a defence lawyer during questioning; there was an extension of cases in which bail was granted (the so-called Valpreda Law); and finally, beginning in 1974, there was reform of criminal proceedings.

This reformist drive peaked between 1969 and 1973, when it began to break down under the impact of a public-order campaign prompted by extreme-right-wing bomb outrages and red terrorism. The complex and dramatic nature of the Italian 'long '68' resides, in fact, in the immediate counter-reaction that it provoked from forces that refused to accept change. Two years of worker and student struggle was ended on 12 December 1969 in Piazza Fontana, Milan, with the first of the bombings perpetrated by the right with the complicity of the secret services. The prolonged violence culminated in 1980 at Bologna railway station, where on 2 August 1980 a bomb killed 85 people and left hundreds wounded. The terrorism of the fanatical right was matched by that of the extremist left, who struck at individuals representing the establishment or guilty of contributing to reform policies they saw as incorporating revolutionary tendencies: for this reason, legal practitioners (judges, lawyers, and lecturers in labour law) were among its main targets.

Beginning in 1974, a year of bloodshed which saw two tragic right-wing terrorist attacks (Piazza della Loggia, in Brescia, and the Italicus train close to Bologna), the resistance to the reformist drive turned into outright counter-revolution. The emergency legislation enacted between 1974 and 1978 extended preventive detention measures and gave the police exceptional powers. The Reale Law (22 June 1974, no. 152 repealed by referendum in 1978) was the most complete expression of that period of emergency. In response to this reaction, numerous practitioners of law changed trajectory, giving rise to new configurations and new cultures, as well as new hierarchies. Thus the 'long '68' brought latent conflicts to the surface: not only setting conservatives against radicals, but also splitting the ranks of left-wing lawyers.

Academic lawyers and the Workers' Statute

The law enacted in 1970, called the Workers' Statute (Statuto dei lavoratori), is an emblematic example of the twofold meaning assumed by the reform process of those years. It was a decisive part of the strategy adopted by the institutional left to regain its influence over the workers in the great factories of the north, who were strongly attracted to new, non-institutionalized political formations. But it also represented a radical improvement in blue-collar workers' rights. The Workers' Statute was one of the main areas of action by radical lawyers after 1968, as well as a source of conflicts among them as a result of diverse political alignments.

The idea of the Statute, a charter to protect workers in the large factories still in the hands of authoritarian and paternalist industrialists, first arose in the 1960s, but it took shape under the pressure of the workers' struggles of 1968-69, during which the role of the traditional trade unions was greatly undermined by the advent of organizations representing the rank-and-file directly. The charter was the work of the Socialist Party, and was carried forward by professionals specializing in labour law, most notably Gino Giugni, then director of the legislative office of the Ministry of Labour, and Federico Mancini, professor of labour law at the University of Bologna and subsequently member of the European High Court of Justice.

The Socialist lawyers argued that collective bargaining must be regulated, for which purpose they chose the unionization of industrial conflict; that is, bringing the workers' struggles of 1968-69 under control by increasing the power of the trade unions. To many others this choice appeared conservative, because trade unions were at that time one of the main targets of protest, and it did not initially find favour with the Communist Party. The PCI pursued a neo-constitutionalist line, intending to bring political debate into the factory through the party and not through the unions. And it criticised the Statute because it had scant constitutional backing. This view was supported by Communist-leaning lecturers in labour law who gravitated around Rivista giuridica del lavoro. But, as Mancini objected, if the battle for rights in the factory was not conducted with the support of the unions, it was doomed to failure. In the end, agreement was reached in parliament between the various factions on the left, and the law was voted through. It enshrined certain basic principles, such as that of trade-union freedom in workplaces, the prohibition of dismissals without just cause, and the protection of workplace health and safety.

The Workers' Statute, which applied to large and medium-sized factories, had two effects in the legal field. It was the reason for the political emergence of academic experts in labour law, who became consultants to various governments on labour policies, and consequently figured among the main targets of the Red Brigades. Yet at the same time, the Statute, by giving the trade unions new power in factories, diminished the role which had been performed by judges in workers' protection prior to 1970: the trade unions changed strategy, preferring to resolve disputes over dismissals by extra-judicial and conflictual means, resorting to judges only when their position was weak and did not permit other types of settlement.

The radicalisation of judges

The worker protests and police repression of 1968-69, which continued during the years of terrorism, exposed the legal field to all the social and political conflicts in the country. The judiciary was thus directly confronted both by the ongoing reform process, and by the forces which opposed it and received support from certain other institutions of the state. This intensified pressures on the judiciary, which had already been evident in 1964, when Magistratura Democratica (MD) had been founded as a new section of the Associazione Nazionale Magistrati to promote democracy and equal opportunity in the judiciary and its career structure.

The MD became radicalized by the exacerbation of social conflict. It adopted a firm stance against the massive repression of protest by the police and by the conservative establishment in the judiciary, and against the exponential increase in cases muzzling free expression. On 30 November 1969, the MD Congress in Bologna voted in favour of a motion condemning the arrest of Francesco Tolin, managing editor of Potere operaio, the newspaper of the extreme-left political group of the same name. The motion came into the hands of Tolin's defence lawyers, who read it out in court, provoking a great outcry.

Twelve days later, the Piazza Fontana bomb attack perpetrated by neo-fascists with the support of elements in the secret services, highlighted the existence of two opposed judiciaries: one aligned with the establishment and acting as its right arm in repressing student and worker protests and covering up subversive plots; the other, a group of judges accused of flanking the extreme left and of supporting the anarchists whom the police had initially arrested for planting the bomb. The conflict between the two sides became so fierce that some of the founders of MD left the association for fear of being labelled 'extremists'. On 20 December 1969, the day of the internal split, MD opted for radicalisation. It pursued this road by theorizing what it termed 'alternative justice': arguing for a shift in emphasis away from a legal framework set out by statute to one more responsive to case law, that is shifting power from the legislature to the judiciary.

As protests grew more severe, the judges of MD passed from theory to action, endeavouring to eliminate social inequalities and to correct the flaws of the social system. There was great media interest in the so-called 'assault magistrates' (pretori d'assalto), the judges who brought proceedings to defend the environment against pollution by factories, as well as to protect the health of workers and the rights of evicted tenants. The scandal provoked by these cases was enormous and reverberated in the media. Much criticism was made of the political function being performed by the magistracy, and its role as a substitute for an ineffectual political class. As well as defending the vulnerable, they also began to bring prosecutions against the secret services for corruption and conspiracy. However, this struggle waged by judges against the establishment achieved only modest results and was hindered in manifold ways. The alliance between the establishment and the conservative branch of the judiciary led to constant pressure being exerted on the MD judges, who were often removed from investigations which they themselves had begun and repeatedly subject to disciplinary measures as punishment for their political activism.

Moreover, in the mid-1970s the leftist magistracy was traversed by the same conflict that afflicted the left in general during the years of terrorism. It was torn between the need to defend the freedoms that '68 had helped consolidate and the need to combat terrorism. Enactment of the Reale Law provoked heated debate in the country, and also in the legal field, where judges, lawyers, university lecturers, and experts on case law argued about the best means to defeat terrorism. MD chose the civil-liberties route, opposing the emergency legislation because it was detrimental to individual rights, and opposing the repression of terrorism with trials conducted on only circumstantial evidence. This reversed the position taken up by the Communist Party, which assumed a direct role in the struggle against red terrorism, mounting mass campaigns and effectively collaborating with the investigating judges, in order to show its transformation into a law-and-order party, ready to enter the government. Thus the MD's stand on civil liberties estranged those judges closest to the Communists. In 1977, a new student movement distinct from that of '68 became very prominent in the country and set off a chain of dramatic events, from the killing in Bologna of the student Francesco Lorusso by the police, to the charges of terrorism brought against a group of intellectuals, among them the well-known philosopher Toni Negri. In the same year, at its congress in Rimini the MD came close to schism, which was only narrowly averted by a compromise agreement.

The radicalisation of lawyers

The wind of radicalisation affected lawyers too, and, as with judges, produced conflicts and internal divisions. Italian lawyers were for the most part a conservative body aligned with the centre-right political parties. The events of 1968-69 led the FESAPI (Italian federation of lawyers' syndicates, founded in 1964) to engage in discussion on the new role of the lawyer in a changing society and policies to reform the legal profession. The conference of Italian lawyers held in Perugia in 1973 was a turning point. Alfredo De Marsico, who had been Minister of Justice in 1943 during the Fascist regime, attacked leftist judges and the politicization of the legal field and ended his speech with an apologia for Fascism. There was a massive reaction from democratic lawyers, and from 1973 until the end of the 1970s, the FESAPI was strongly radicalized.

Radical lawyers were directly involved in the defence of students, workers, and leftist militants, a task undertaken by different generations. There was first the generation of lawyers born during the Fascist regime, who were about forty years old in '68. These lawyers were not generally linked with the Communist Party, but rather with the Radical Party (engaged since the 1950s in a struggle for civil rights), and they acted as a bridge to the students in the law faculties who became lawyers from 1971 onwards. Between 1968 and 1971 'legal-political collectives' were organized in numerous Italian cities to give legal assistance to indicted militants. However, these collectives were not all of the same nature. In Milan in 1971 a national network of lawyers and militants was created, which specialized in assisting prisoners and defending their rights. Some lawyers who worked with Soccorso rosso (Red Assistance) were indicted for collusion with the revolutionary and violent Red Brigades (formed in 1970 to fight for a revolutionary state). Meanwhile, in Bologna in 1971 an organization was created, some of whose members were young lawyers who had begun their careers in the Law Faculty of the local university, had extreme leftist views and were involved in political demonstrations against the neo-fascist movement and the emergency legislation. However, it avoided the direct political involvement which characterized Soccorso rosso.

When the trials of the Red Brigades began, Italian lawyers, radical and otherwise, were faced with an entirely new situation. The terrorists refused to be defended by lawyers, their purpose being to challenge the existence of the trial itself as a manifestation of the power of the state. Moreover, many lawyers who had been threatened by the terrorists refused to act as court-appointed defenders, notwithstanding insistence by the Consiglio Nazionale Forense (National Bar Association) that the exercise of defence, even if dangerous, was a lawyer's unavoidable duty. In 1976 the first trial of the Red Brigades opened in Turin, in which the 'historical leaders' of the group were prosecuted, and the lawyer Fulvio Croce, who had assumed defence of the terrorists as president of the local bar association, was murdered by other Brigade members. The issue of the court-appointed defence counsel thus became even more dramatic. After dozens of refusals, twenty lawyers at last agreed to defend the accused. They were professionals with very different backgrounds: Bianca Guidetti Serra had been a partisan during the Second World War and was a leading representative of the feminist movement, whilst Vittorio Caissotti di Chiusano was the lawyer of the Fiat company and the Agnelli family. All these lawyers accepted an onerous task in regard to defendants who rejected them and adopted an entirely unprecedented form of behaviour. The court-appointed counsel eventually accepted the Red Brigades' decision to defend themselves and consequently restricted their role to guaranteeing the legality of the trial, without interfering in the self-defence mounted by the accused. In this trial 29 defendants were condemned, most of them with life sentences, while 15 were acquitted.

Thirty years on

In the thirty years following 1968, turmoil continued in the legal profession because Italy persisted in a state of constant emergency. The radicalisation of part of the Italian magistracy in '68 turned out to be a good proving ground for addressing the challenges raised by the Mafia emergency of the 1980s and 1990s, and by the collapse of the political system under the weight of its own corruption. A section of the magistracy, some of whose members paid in blood for their action against the Mafia, continued to perform an independent role in regard to a delinquent political system, and thus became protagonists in the eyes of public opinion and the media. In the early 1990s, on the initiative of a pool of Milanese judges, the political class which had governed Italy since the end of the 1970s was accused of corruption and put on trial. The judiciary therefore performed a political role of prime importance and was mainly responsible for the fall of the so-called 'First Republic'.

Whilst for the judges it was paradoxically easier to maintain an independent and progressive stance, the radical lawyers tended to return to the establishment. With the period of militancy now concluded, a considerable number of young lawyers became successful professionals. Criminal lawyers especially gained high public visibility in the trials over Mafia organized crime and political corruption, contending with the judges to win the attention of the media. The popularity that Forza Italia, the centre-right party headed by Silvio Berlusconi, enjoyed among lawyers in the mid-1990s even included some who had previously professed left-wing principles and had been activists in 1968. Similarly, some labour lawyers responded to the deterioration of working conditions in post-industrial society simply by placing themselves in the service of the new culture of flexibility. Once again blood flowed when the labour-law expert Marco Biagi was murdered in 2002 by the new Red Brigades because he had been a pro-flexibility advisor to the Minister of Labour during the second Berlusconi government.

Today, the Italian legal field reflects all the contradictions of a country traversed by a dramatic political crisis. Silvio Berlusconi has failed to gag the judiciary despite the mobilization of his television channels and newspapers against the 'red judges'. The latter have done their duty by subjecting Berlusconi to trials for offences committed in the exercise of his business, trials which have concluded with Berlusconi's sentencing or acquittal for lack of evidence under the statute of limitations. For these reasons, Berlusconi has accused the judges of being communists, ranging against them his personal lawyers, some of whom have then become deputies or senators. In their guise as parliamentarians belonging to the majority coalition they have made a decisive contribution to the enactment of laws designed to protect Berlusconi in the judicial proceedings brought against him. The prime minister's other objective has been to reform the judiciary and its organ of self-government, the Consiglio Superiore della Magistratura, his purpose being to reduce its independence from the executive. The reform has not yet been undertaken, but the intention is to emulate the French model by separating the career of examining judge from that of adjudicating judge. Berlusconi's judicial policy has split the ranks of the lawyers, many of whom look with favour on a reform of the judiciary which will reduce its power. But the lawyers who disagree with Berlusconi have not overtly expressed their dissent, for the American model of the business lawyer wholly identified with his/her profession and out of contact with the wider society has recently become more common in Italy.

Conclusions

The radicalisation of Italian lawyers during and after '68 and their commitment to the exercise of their profession was only partly new. Although most of the profession had usually aligned with the establishment, and indeed had come to terms with the Fascist dictatorship, in various periods of the country's history small minorities had previously undertaken independent, critical activity. In the late-nineteenth and early-twentieth centuries, socialist lawyers had defended workers arrested during strikes and demonstrations in defence of their rights, whilst during the Fascist period dissident lawyers had opposed the regime and joined the partisans in their armed struggle against the Nazis. Also, under the post-war conservative Christian Democrat governments, lawyers had joined the Communist Party in defence of workers. Thus the radical lawyers of '68 were in many ways resuming and regenerating this tradition of political activism and enriching it with fresh notions on the role their profession should play within a changing society.

However, in Italy, as in Germany, 1968 initiated a more prolonged, turbulent period which continued until the end of the 1970s. In both countries, the protest gave rise to extreme forms of left-wing radicalisation against the establishment. But in Italy, unlike in Germany, the wind of reform was immediately opposed by neo-fascist terrorist groups whose collusion with the state secret services has now been definitively proven during the course of many trials mounted against the extreme-right perpetrators of the bomb attacks of the time. The distinctive feature of the Italian '68 is therefore that it initiated a period in which so-called 'opposing extremisms' confronted each other in a growing spiral of violence, amid the destabilization of democratic institutions.

A minority of university law lecturers, magistrates and lawyers chose to take an active role in the process of social change. They contributed to the emergence of new legal cultures in the field of labour law, family law and criminal law, and lent their expertise to the launching of social reforms. In their capacity as legal practitioners, they also defended social and political rights and supported disadvantaged groups. Whilst magistrates mounted investigations into environment and health issues, and sought to uncover the truth about alleged conspiracies behind the terrorist bombings, lawyers created collectives in defence of students and workers arrested by the police during demonstrations and strikes.

The positive effects of the 'long 1968' are today misconceived by large sections of Italian public opinion, and by political forces determined to reconstruct the memory of those years by recalling only the violence of the conflicts that followed. Nevertheless, the changes that '68 wrought in social rights, social theory and social practice did not come to a halt, and had far-reaching effects on the modernisation of Italian society. Taken as a whole, the activism of radical lawyers had a decisive role in the birth of the 'society of rights' which can be considered the enduring achievement of the Italian 'long '68'.


Further Reading


Austin Sarat and Stuart Scheingold (eds), Cause Lawyering, New York: Oxford University Press, 1998.

Liora Israël, L'arme du droit, Paris: SciencesPo Les Presses, 2009.

E. Palombarini, Giudici a sinistra. I 36 anni della storia di magistratura democratica, una proposta per una nuova politica per la sinistra, Rome: Edizioni Scientifiche Italiane, 2000.

Bianca Guidetti Serra con Santina Mobilia, Bianca la rossa, Torino: Einaudi, 2009.

'BBC On This Day: 12 December': 1969: Deadly bomb blasts in Italy.

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