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1 Race and Empire: The Legitimation of Italian Colonialism in Juridical Thought Author(s): Olindo De Napoli Source: The Journal of Modern History, Vol. 85, No. 4, New Directions in Legal and Constitutional History (December 2013), pp Published by: The University of Chicago Press Stable URL: Accessed: 06/10/ :10 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact The University of Chicago Press is collaborating with JSTOR to digitize, preserve and extend access to The Journal of Modern History.

2 Race and Empire: The Legitimation of Italian Colonialism in Juridical Thought* Olindo De Napoli Università degli Studi di Napoli Federico II Problems of Methodology and Definition Many scholars would agree that, however it is structured, colonial domination contains within itself a racist principle, and that as a result to remain within the juridical realm every differentiation made between citizens and subjects is inherently racist. According to Giorgio Rochat, one of the pioneers in the study of the phenomenon, Italian colonialism was saturated with racism and abuse of power, which are preliminary conditions for all colonial conquests, because the very idea of wanting to dispose as one wishes of the fate of a people that is militarily weaker is profoundly racist and oppressive. 1 This general affirmation raises a number of questions. First of all, we need to ask whether the existence of racism is something that scholars can discern only a posteriori, on the basis of canons that are not always easily discernible, 2 or whether it was in some manner noticed or theorized at the time in question. In other words, if it is true that colonialism is always inherently racist, we need to ask ourselves whether it represents itself as racist and whether the discourse that legitimates it is founded on race. 3 *Translated for The Journal of Modern History by Lydia G. Cochrane. I am grateful to Elena Bacchin for having encouraged me and for following the redaction and revision of this essay with intelligent observations. 1 Giorgio Rochat, Il colonialismo italiano ðturin, 1973Þ, It seems to me that often studies of racism encounter a difficulty of definition right from the start and that the problem is pressing in the case of comparative studies. See, for example, Robert Ross, Reflections on a Theme, in Racism and Colonialism: Essays on Ideology and Social Structure, ed. Robert Ross ðthe Hague, 1982Þ, in which the author proposes to exclude homophobia from the category of racism, given that homosexuality is not genetically passed on to one s descendants. In a direction quite contrary to the superposition of concepts of racism and sexism, see Anna Rossi-Doria, Antisemitismo e antifemminismo nella cultura giuridica, in Nel nome della razza: Il razzismo nella storia d Italia , ed. Alberto Burgio ðbologna, 1999Þ, In connection with problems of self-representation and rhetoric in Fascist juridical culture, see Aldo Mazzacane, La cultura giuridica del fascismo: Una questione aperta, in Diritto economia e istituzioni nell Italia fascista, ed. Aldo Mazzacane ðbaden-baden, 2002Þ. The Journal of Modern History 85 (December 2013): by The University of Chicago /2013/ $10.00 All rights reserved.

3 802 De Napoli That question is even more to the point if we consider that for a long time racist and nonracist were quite normal divisions in scholarly debate. It was only after World War II that the term racist was so clearly stigmatizing that almost no one with a racist mind-set presented himself as such. Jean-Paul Sartre, for example, stated that antisemitism before the Second World War was categorized as being of the order of opinions, whereas it now belongs within the order of crime. 4 In an investigation of a time in which it was not inherently shameful to declare oneself a racist or to expound on the biological and psychic differences between the various races even to do so explicitly in terms of superiority and inferiority the question of whether the colonialist movement and the colonialist sensibility represented themselves as racist seems unavoidable. 5 Once the presence of a declared racist option is verified, one needs to ask how that option was expressed in the period under consideration, beyond the nominalism that is inevitable in all categorizations: that is, we need to ask what types of political and juridical mechanisms were activated. Not all racisms are equal: there can be a racism that does not permit direct contacts with those who are different the subject population in the present case but there can also be a racism within a context of continual exchanges and mingling. 6 From a theoretical point of view, in some cases racism can conform to an evolutionist paradigm, relying on the idea that it is the duty of the superior races to raise the inferior races to their own state of civilization, 7 but in others it can reflect a biological determinism that holds differences to be naturally insuperable and that dictates that the betterment of the inferior race is impossible, if not politically erroneous. Or there can be a veiled prejudice of condescension on the basis of race that can be defined as racialism. These distinctions are frequent in the human sciences. 8 Different types of racism can have common 4 Jean-Paul Sartre, Réflexions sur la question juive ðparis, 1947Þ, in English translation by George J. Becker as Anti-Semite and Jew ðnew York, 1948; distribution Pantheon, 1995Þ. On the shift from scientific racism to the new, contemporary forms of racism, see the summary in Michel Wieviorka, Le racisme, une introduction ðparis, 1998Þ, esp. chap A similar historiographical problem regarding the use of the category totalitarian is posed in Pietro Costa, Lo stato totalitario : Un campo semantico nella giuspubblicistica del fascismo, Quaderni fiorentini per la storia del pensiero giuridico moderno 28 ð1999þ: , esp. 63, Barbara Sòrgoni, Parole e corpi: Antropologia, discorso giuridico e politiche sessuali interrazziali nella colonia Eritrea: ðnaples, 1998Þ, See also Ann Laura Stoler, Carnal Knowledge and Imperial Power: Race and Intimacy in Colonial Rule ðberkeley, 2002Þ. 7 See Claude Lévi-Strauss, Race et histoire ðparis, 1952Þ, in English translation as Race and History ðparis, 1952Þ. 8 See, for example, the entries Racialism, in Andrew M. Colman, A Dictionary of Psychology ðoxford, 2006Þ, 612; Racialism, in A Dictionary of Sociology, ed. John Scott and Gordon Marshall ðoxford, 2005Þ; Racism, in Blackwell Dictionary of Po-

4 Race and Empire 803 features, however. According to Pierre Bourdieu, the nucleus of all types of racism is the essentialist logic that consists in objectivizing, through language, the diversities of various groups; and precisely in order to escape that kind of logic, Bourdieu proposes the notion of social field as the real basis for relations. 9 Analyses that attempt to find an analytical unity in the phenomenon do not omit investigation of the diversity of forms and contents, at times concluding that a variety of types of racism can easily coexist in a given society: racists do not disdain syncretism. 10 In contrast to the various proposed analyses of the different mechanisms of racism, a Marxist school influential in Italian historiography has theorized the reductio ad unum of the phenomena classifiable under the term racism. Unlike those who seek a unitary definition of the phenomenon in order to study its concrete historical manifestations, the Italian school seems also to accentuate the unitary nature of the manifestation and the causes of racism ðand sexismþ, which it invariably discerns in Marxist terms of class conflict and capitalistic accumulation. 11 What I propose here is a concrete investigation of the various juridical and political mechanisms of Italian racism. I intend to remain within a juridicalpolitical discourse, without venturing into the social history of the phenomenon which, where Italy is concerned, has for a number of years begun to attract the attention of scholars, for which I refer readers to Nicola Labanca s excellent synthesis. 12 The study of juridical thought between the nineteenth and twentieth centuries is particularly useful for a more general comprehension of Italian culture. As has been observed, the modern state is a product of the jurists. 13 In Italy the jurist class made up the foundations of the new unified state, 14 and juridical litical Science, ed. Frank W. Bealey ðoxford and Malden, MA, 1999Þ. Pierre Bourdieu has pointed out that the current use of the term ethnicity, a term steeped in substantialist logic, clearly conveys the traditional concept of race: Pierre Bourdieu, Raisons pratiques: Sur la théorie de l action ðparis, 1994Þ, in English translation as Practical Reason: On the Theory of Action ðstanford, CA, 1998Þ. 9 Pierre Bourdieu, Méditations pascaliennes ðparis, 1997Þ, 87, in English translation as Pascalian Meditations ðstanford, CA, 2000Þ; Bourdieu, Raisons pratiques; Ragioni pratiche ðbologna, 1995Þ, 7ff. and 45ff. 10 Michel Wieviorka, Le racisme: Une introduction, in Italian translation as Il razzismo ðrome and Bari, 2000Þ, For the theory of the unitary nature of the racist phenomenon, see Alberto Burgio, Per la storia del razzismo italiano, in Nel nome della razza, ed. Burgio, Among those who express perplexity at the comprehensive use of the category, see George M. Fredrickson, Racism: A Short History ðprinceton, NJ, 2002Þ. 12 Nicola Labanca, Oltremare: Storia dell espansione coloniale italiana ðbologna, 2002Þ, 369ff. 13 Ernst Forsthoff, Rechtsstaat im Wandel ðstuttgart, 1964Þ, From the liberal period on, the relative majority of members of parliament were men of the law, a situation that continued in the Fascist era: see Fulvio Cammarano and

5 804 De Napoli reflection constantly accompanied the political choices that were made, giving them a scholarly grounding. That characteristic derived in turn from the paradigm of juridical studies themselves, which, based on Pandectistics, 15 were considered science, 16 in the root sense of the term, and, as such, were believed to be neutral. 17 Sociology and humanistic culture in general have begun to reflect with Michel Foucault and Pierre Bourdieu at the forefront of this trend on the powerful effects of a scientific discourse that sets up a hierarchy among forms of knowledge, on the role of scientific language in the struggle for classification, and in particular on the performative nature of that language. 18 In the case of Italian colonialism, as we shall see, juridical culture played a particularly fundamental role in this connection. With these premises in mind, in the pages that follow I shall attempt to provide an overall view of Italian colonialism in a comparative perspective, seeking to suggest some elements in a history that does not reduce racism to a unified and unvarying phenomenon, but rather attempts to take into consideration, in a diachronic perspective, elements of both continuity and fracture. Thought Shall Win Africa : Juridical Discourse on Race at the Origin of Italian Colonialism The race problem was posed explicitly from the very beginning of Italian colonization during the formative years of the postunification state. In political debate, demographic discourse about a race that was expanding and needed new space obscured all concrete discussion of the country s problems, for which new Maria S. Piretti, I professionisti in Parlamento ð Þ, in Storia d Italia ðturin, 1996Þ, vol. 10, I professionisti, ed. Maria Malatesta, , esp. 553, 554. See also Francesca Tacchi, Gli avvocati italiani dall Unità alla Repubblica ðbologna, 2002Þ. 15 Pandectistics was a trend in nineteenth-century juridical culture that originated in Germany and spread throughout Europe; it renewed the study of law through a return to the texts of Justinian s Corpus Juris Civilis, particularly the book of Pandectae. See the critical synthesis by Aldo Mazzacane, Pandettistica, in Enciclopedia del diritto ðmilan, 1981Þ, vol On the theme of scienza, which is fundamental for framing the entire problem of the history of law in the construction of the Italian state in the ottocento, see Aldo Mazzacane, Scienza e nazione: Le origini del diritto italiano nella storiografia giuridica di fine ottocento, in La cultura storica italiana tra otto e novecento ðnaples, 1987Þ, See Luigi Ferrajoli, La cultura giuridica nell Italia del novecento ðrome and Bari, 1999Þ, See Michel Foucault, Il faut défendre la société: Cours au Collège de France ð ÞðParis, 1976Þ, in English translation as Society Must Be Defended : Lectures at the Collège de France, , ed. Mauro Bertani and Alessandro Fontana, trans. David Macey ðnew York, 2003Þ, in Italian translation as Bisogna difendere la società ðmilan, 1998Þ; Pierre Bourdieu, Ce que parler veut dire: L économie des échanges linguistiques ðparis, 1982Þ, in English translation as Language and Symbolic Power ðcambridge, 2008Þ, in Italian translation as La parola e il potere: Economia degli scambi linguistici ðnaples, 1988Þ,

6 Race and Empire 805 African colonies did not represent a solution. 19 The rhetoric of publicity used a sort of social-imperialist harangue ðas it was perspicaciously definedþ to link the problems of Italian emigration with the need for colonies to be populated. 20 A nationalism that was positivist, imperialist, and in some sense popular was a directional axis of bourgeois culture in Italy. 21 But how to legitimate the colonial enterprise from a juridical point of view? It was Pasquale Stanislao Mancini, one of the leading ideologists of the national movements, 22 who first described the connection between colonialism and racism in strictly juridical terms. A lawyer and a politician of the Left, as a jurist Mancini was considered from the mid-ottocento to be the founder of the modern doctrine of the right of nations, 23 the recognized foundation of a new European public law. 24 He had the merit of clothing the concept of nation ðwhich had been indefinite and discussed only on the historical-political levelþ in a coherentjuridicalgarbbygrantingthenation the monad of international law. 25 Recent studies have thrown light on the inexorability of this concept on the European level in the late nineteenth-century elaboration of international law See Romain Rainero, L anticolonialismo italiano da Assab ad Adua ð Þ ðmilan, 1971Þ, The idea of somehow creating new decompression valves by means of the acquisition of a colonial empire, hence of protecting social order from the wave of underoccupied proletarians, met with a certain success and a vast popularity. This socialimperialist harangue obviously also constituted a moral alibi in connection with a broad policy of colonial acquisition : Wolfgang J. Mommsen, Società e politica nell età liberale: Europa , in La trasformazione politica nell Europa liberale, , ed. Paolo Pombeni ðbologna, 1986Þ, Silvio Lanaro, Nazione e lavoro: Saggio sulla cultura borghese in Italia ðvenice, 1979Þ, Sergio Romano, L ideologia del colonialismo italiano, in Fonti e problemi della politica coloniale italiana: Atti del convegno Taormina-Messina, ottobre 1989, 2 vols. ðrome, 1996Þ, 1: Pasquale S. Mancini, Della nazionalità come fondamento del diritto delle genti: Prelezione al corso di diritto internazionale e marittimo pronunziato nella R. Università di Torino dal professore Pasquale Stanislao Mancini nel di 22 gennaio 1851 ðturin, 1851Þ, later reprinted in Pasquale S. Mancini, Diritto internazionale: Prelezioni con un saggio sul Machiavelli ðnaples, 1873Þ. 24 Romano, L ideologia del colonialismo italiano, 22. See also the observations of the jurist Francesco Ruffini, who, during World War I, thinking of the postwar reorganization, saw in Mancini s juridical doctrine of nationality the only article of scientific exportation that our literature of public law has produced during the course of the ottocento : Francesco Ruffini, Nel primo centenario della nascita di Pasquale Stanislao Mancini, Nuova Antologia ðmarch 16, 1917Þ: xi, quoted in Pasquale Stanislao Mancini, in Dizionario biografico italiano, henceforth abbreviated as DBI. 25 See Pietro Costa, Civitas: Storia della cittadinanza in Europa, 4 vols. ðrome and Bari, 2001Þ, vol. 3, La civiltà liberale, See Luigi Nuzzo, Disordine politico e ordine giuridico: Iniziative e utopie del diritto internazionale di fine ottocento, Materiali per una storia della cultura giuridica 2 ð2011þ:

7 806 De Napoli In his doctrine of nationality Mancini attributed great importance to race as an expression of an identity of origin and of blood and as a genuinely constitutive element of the nation. From this point of view, he could even state that it is by membership in a race that the Nation most resembles the Family. 27 In the culture of the age of the Risorgimento and the late nineteenth century, the term nation bore strong connotations of the idea of a community of descendants. 28 Mancini s metaphor of the family confirms that reading. Racial unity was a substratum of physical and moral qualities that one has in common with one s own brothers ; even more,it was the most tenacious link among individuals of the same extraction in comparison to those who are extraneous to it. 29 To be sure, as has been observed, the racial element counted in Mancini s idea of nation, but within a vision where the consciousness of nationality, a sentimental value, was predominant. 30 Concerning the colonial enterprise, in the 1880s Mancini stated that it was justified morally by the need to bring civilization to the African populations and to join with the generous works of the other European nations, but he also considered it to be justified juridically. Speaking of colonial domination, he stated: That relationship is just as legitimate in international society as the relationship that is called tutelage is legitimate in private law: tutelage of those who are incapacitated by age, or by weakness of mind; similarly, it is not incompatible with the principle of the independence and the equality of all human creatures. 31 This argument proposes a parallel between institutions of private law and institutions of public law, and it intimates that the African populations should be considered inferior in that they were less advanced in evolution or even mentally incapacitated. The image of colonized peoples as childish was fairly widely diffused in fin de siècle European culture. 32 The framing paradigm was that of Darwinian evolution, and the rhetoric was that of the burden: 33 colonialism was a weight necessarily borne by the civilized peoples. After long service in Parliament, working above all in the fields of penal law and reform of the law codes, Mancini served twice as Minister of Foreign Affairs in the Depretis government. This led, in 1882, to his inauguration of Italy s 27 Mancini, Della nazionalità come fondamento del diritto delle genti. 28 Alberto M. Banti has devoted a number of studies to the racial aspect of the nineteenth-century concept of nation: see Alberto Mario Banti, La nazione del risorgimento: Parentela, santità e onore alle origini dell Italia unita ðturin, 2000Þ; and Banti, La nazione come comunità di discendenza: Aspetti del paradigma romantico, Parolechiave 25 ð2001þ: See Atti del Parlamento italiano, 1887, Discussioni, 4: Costa, Civitas, vol. 3, La civiltà liberale, Mancini, Della nazionalità come fondamento del diritto delle genti, See Lévi-Strauss, Race and History. 33 Obviously, I am referring to the later and famous poem of Rudyard Kipling, The White Man s Burden ð1899þ.

8 Race and Empire 807 colonial foreign policies. 34 To those who accused him of betraying his belief in the right of nations, Mancini responded that in Africa there were no nationalities and that the peoples of Europe had a mission of peaceful civilization. 35 A later speech in Parliament reflected a similar discourse: How can we close our eyes to this generous competition, which is now manifested among all the great nations of Europe, to take part in a sort of common and joint enterprise of world-wide civilizing; in a high educational mission of such a large part of the human species that lives in the vast African continent? 36 It was Italy s duty to join the other European nations in a highly worthy crusade of civilization against barbarity. 37 In that same period, Third Republic France was at the peak of its celebration of its mission civilisatrice, and according to Alice Conklin the very concept of civilization was particularly French. 38 Thus Mancini must certainly have had in mind the imperial policies of lands north of the Alps and, in particular, their imperial doctrine regarding African subject peoples, who must be elevated both morally and materially. The thought of this great Italian jurist is useful for an understanding of some aspects of the culture of an entire epoch, as his theory used a logical and linear line of argumentation to bind together concepts such as race and nation that were open to different interpretations and were potentially undefined juridically. Making the nation the subject of international law and giving it a coherent juridical expression within a general theorization of the relevant material represented a genuine qualitative advance, however. Giovanni Bovio, an intellectual and a jurist from Puglia, a philosopher of a democratic and enlightenment formation, a man involved in Freemasonry and in liberal causes, and the ideologist of the evolutionist Republicans 39 and the extreme Left, seemed to stand on the other side in the debate concerning the legitimacy of the Italian colonial enterprise. Bovio arrived at the University of Naples in 1872, where he became one of the most beloved teachers. 40 Concerning his involvement in the debate on Italian colonialism, which was lively even in Radical circles, 41 one brief text, as significant as it is little known, stands 34 For biographical details, see Pasquale Stanislao Mancini in DBI. 35 See Roberto Battaglia, La prima guerra d Africa ðturin, 1958Þ, Camera dei Deputati, Atti Parlamentari, Legislatura XV, Discussioni, tornata del 27 gennaio Ibid., Legislatura XVI, Discussioni, tornata del 30 giugno Alice L. Conklin, A Mission to Civilize: The Republican Idea of Empire in France and West Africa, ðstanford, CA, 1997Þ, A group that opposed the intransigents and relied much on the Rivista repubblicana of Alberto Mario and Arcangelo Ghisleri. 40 See Alfonso Scirocco, Giovanni Bovio, in DBI. 41 Raffaele Colapietra, Correnti anticolonialistiche nel primo triennio crispino ð Þ: L atteggiamaento di Giovanni Bovio, Belfagor 9 ð1954þ:

9 808 De Napoli out: Bovio s 1887 inaugural lecture at the Regia Università di Napoli, Il diritto pubblico e le razze umane. 42 According to Bovio, the better races transform or eliminate the worse ones, which, without the former, would never have a chance to elevate themselves to science and enter into the atmosphere of universal history. Civilization has the right to expand not only with science but also with violence, because there is no recognizable right to barbarity. 43 While it is true that he proposed a vision of history in which the struggle between races was normal, Bovio saw the goal of that process as the transformation of those inferior races. The violence of the superior races over the inferior ones, in fact, was one means for the betterment of peoples. 44 Social Darwinism is evident in the ideas that history shows that the law of selection takes place among individuals and among races, the best of which prevails 45 and that the Caucasian type prevails everywhere just as thought prevails. 46 Bovio considered the inferiority of certain races to be a scientific datum, to the point that he presented non-caucasian races as prehistoric and even extrahistoric types. Such types were not able to produce ius humanum, as they were not thinking beings; and those who think are free; those who do not, serve. 47 Assertions of the sort were typical in a period in which the existence of local civilizations was denied, especially in Africa, placing the populations to be dominated outside of history. Bovio s thought was thus firmly located within an ethnocentric climate in which, to borrow a phrase from Claude Lévi- Strauss, people preferred to reject out of hand the cultural institutions ethical, religious, social or aesthetic ½ Š which are furthest removed from those with which we identify ourselves. 48 Bovio justified colonization as the bearer of thought, law, and civilization. In anticipation of objections, however, he outlined the arguments that could be 42 See the quotation from Bovio given in Labanca, Oltremare, Giovanni Bovio, Il diritto pubblico e le razze umane ðnaples, 1887Þ, On Bovio s philosophy of history, which was based on a mathematical determination of historical periods, see Giovanni Bovio, Corso di scienza del diritto ðnaples, 1877Þ. See also Scirocco, Giovanni Bovio, in DBI. 45 Bovio, Il diritto pubblico e le razze umane, 8. It was Romolo Prati who noted the Darwinian nature of Bovio s justification of Italian colonial aggression: see Romolo Prati, Darwin e Saati, Cuore e critica ðmarch 1887Þ: 40ff., quoted in Rainero, L anticolonialismo italiano, 171. On the ambiguity of the relationship between Darwinism and racism, see George L. Mosse, Toward the Final Solution: A History of European Racism ðnew York: Fertig, 1978; Harper & Row, 1980Þ, in Italian translation as Il razzismo in Europa dalle origini all olocausto ðmilan, 1992Þ, 80 82, where Mosse stresses that Darwin was not personally racist and that his thought was simplified by racists. 46 Bovio, Il diritto pubblico e le razze umane, Ibid., Lévi-Strauss, Race and History, 12. See, in particular, his explanation of false evolution, 14. On the Italian press of the time, see Michele Nani, Ai confini della nazione: Stampa e razzismo nell Italia di fine ottocento ðrome, 2006Þ, 49.

10 Race and Empire 809 opposed to his reasoning: a people that had just attained liberty from foreign domination would not have the right to offend the right of the other nations, which are of men and not of beasts. To this Bovio responds that nation truly resides where there is a State and where there is movement of thought. He cites an example, not by chance referring to Ethiopia, already at the time the target of Italian expansionist aims: The despotism of a Negus indicates master and subjects, not State and nation. Or will you deny the rights of expanding civilization to admit the right of anthropophagy and a common Venus? 49 Colonialism brought betterment to subjected peoples, according to one of the topoi of colonial ideologies, which meant that the right to expansion bore connotations of paternalism. Ideas of the sort were similar to those expressed not long after regarding the British Empire by Lord Cromer, who stressed that the empire was for its subjects, and not the subjects for the empire. 50 For Bovio, from the juridical point of view colonialism was a mission for the expansion of law against savage customs. In his opinion, in fact, there could be no right to barbarity, according to an expression that he took the opportunity to use even on the occasion of a parliamentary discussion of Assab. 51 The total lack of law in the black continent that is, of the law as constructed through the long centuries of history in Western Europe 52 and of the nation, the subject creator of that law, was the foundation of the right to expansion of the better race. In the final analysis, this was an argument that became juridical on the level of international law: for Bovio, in fact, there existed only a public law, that of civilization that pours forth. Outside of that there existed only pretenses of law, which in concrete terms became iniquities, iniquitates iuris. 53 Those pretenses were derived from abstract egalitarian concepts. At this point the orator directly addressed Africa: And you, enormous Africa, black Africa, black within yourself and before civilization, even you will open up before the thought that presses you and searches you, the thought that draws vigor from resistance and does not retreat before the trial of those centuries that, succeeding one another, hid you all the more from searchers. 54 His reasoning concludes on a poetic note: Oh, thought will win, will win over Africa, will fly over the desert, sit amidst the unknown and examine it thoroughly, and will seem both formidable and merciful. Do not say that it will take revenge ignoble word saythatitwillwin,that 49 Bovio, Il diritto pubblico e le razze umane, Robert L. Tignor, Lord Cromer: Practitioner and Philosopher of Imperialism, Journal of British Studies 2 ð1963þ: , esp See Battaglia, La prima guerra d Africa, For a deconstruction of the conception of the universality of the European historical experience, see the now classic Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference ðprinceton, NJ, 2000Þ. 53 Bovio, Il diritto pubblico e le razze umane, Ibid., 10.

11 810 De Napoli its victory is justice, is redemption, and that it will carry history to where there is legend, the thinker to where there is the savage, the school to where there is fetishism. 55 In the expansive impulse of thought, violence was an acceptable accident because when the effects are good, science justifies the causes and pardons the shocks that produce sparks. On the other hand, force should not be used as an end in itself but should have as its purpose a project of civilization: Force for the sake of force is violence; force for civilization is reason. 56 The inferior races had no right to political independence because they were not capable of producing thought and law. Regarding the problem of the use of violence, the scholar of international law Enrico Catellani disagreed with these ideas, proposing instead a humanitarian vision of colonialism that excluded violence in the name of the right to life and to property of every human being, in every corner of the earth. However, even Catellani was in favor of colonial expansion, because imperialism led to one global civilization, and he agreed with Mancini and Bovio on the juridical premise that the right of nationality is not for all. Journals north of the Alps discussed the same topics of the legitimacy of the use of violence in the goal of bringing civilization to lands in which only fanaticism and brigandage reigned. Even if spilled blood proved to be necessary, the Revue des Deux Mondes asserted, who could say this was a poor use of force? 57 Africans without a Nation, Italians without a State To return to Bovio: at the end of his inaugural address in Naples, after having justified the Italian colonial enterprise in theory, he surprisingly declared himself against it. In Italy, in fact, the church, despite the recent achievement of Italian unification, kept up constant interference in public affairs, to the point that no one could claim that the process of the formation of the Italian state had been completed. This made the task of exporting civilization still unthinkable. Arguments of this sort fitted in with Bovio s anticlerical intellectual history when he took part in the anti-council of Naples in As a philosopher, Bovio harshly criticized the impotence of the founders of the liberal state where the church was concerned: the founders of the national state should oppose to that power our public law in all its grandeur and dignity. But on the contrary, they hesitated, and the result was a mutilation of internal law that produced a return to being like children before the ancient power of Rome. 58 We see 55 Ibid., Ibid., Conklin, A Mission to Civilize, 13. The Catellani quote earlier in the paragraph is from Enrico Catellani, Le colonie e la Conferenza di Berlino (Turin, 1885), Bovio, Il diritto pubblico e le razze umane, 19.

12 Race and Empire 811 here a return to the theme of the child-people, a category under which Bovio, unlike Mancini, inscribed Italians as well. Ancient Rome was both the model and the point of comparison that served to disqualify contemporary political conditions: Superstrong Rome, because Rome of Law...that Rome was distant from this one not only in time but also in soul and intellect; that one was as if mistress of all parts of law, even of colonial law, a not small part of Roman public law....the colonizing people par excellence, the people that first established the colonial science of law, was the juridical and political people the Roman people. 59 Given the distance between the Italy of Bovio s time and the Roman mind, the colonizing mission of postunification Italy obviously faced an obstacle not yet surpassed. 60 Exporting civilization was in fact possible only when a fully achieved country is involved. 61 Similar arguments, founded on the distinction between country and state and based on the theme of the right to expansion, were widespread in Anglo-Saxon publicity regarding empire in the late nineteenth century. One example may be found in the theories of John R. Seeley, according to whom colonialism is justified as the expansion of a state that is the Nation and not the Country. 62 In short, for Bovio colonialism was in itself juridically licit and even necessary, but it was not so for Italy, which still had to become a state. From the theoretical viewpoint, however, colonialism was perfectly justified and the central point of the argument for it was clearly racist. In his Neapolitan inaugural address, Bovio described a clearly sexualized image of Africa as an enormous void, one that thought, which presses and delves into, was to fill and fecondate an immense black space that must be opened up to the domination of superior Europeans, represented metaphorically as thought. That image clearly reflected a widely diffused sentiment encouraged by the propaganda of the colonialist movement. A number of years later the monthly L Oltremare, which in 1927 had taken the place of the Rivista coloniale as the organ of the Fascist Colonial Institute, 63 showed Africa on its cover as an enormous unexplored void, interrupted here and there by signs of ancient civilizations and by palm trees and ferocious and exotic animals. A fascination for the frontier made the African colonies increasingly appealing for mass 59 Ibid., Ibid., Ibid., John R. Seeley, The Expansion of England: Two Courses of Lectures ðlondon: Macmillan, 1883; Chicago: University of Chicago Press, 1971Þ, On the Fascist Istituto Coloniale, see Alberto Aquarone, Politica estera e organizzazione del consenso nell età giolittiana: Il Congresso dell Asmara e la fondazione dell Istituto coloniale italiano, Storia contemporanea 1, 2, and 3 ð1977þ: respectively, , ,

13 812 De Napoli consumption. Moreover, the attraction to the exotic was not politically neutral: it accompanied domination. 64 Thus the image that Bovio used expressed a taste for the exotic that lasted into the Fascist era. There were jurists who supported the rights of nations and, at the same time, supported colonialism; there were also intellectuals who saw the legitimation of a policy of dominion as a problem but at the same time publicized the principle of national self-determination. Mancini and Catellani justified Italian colonialism by arguing that the Africans have no nation; Bovio seemed to oppose colonialism by stating that the Italians have no state. When the two positions are carefully analyzed, it is clear that their rhetorical strategies differed but were much more juridical than they seem at first glance. Mancini and Bovio have been presented as contradictory personalities. 65 It is true that, for example, Bovio was bitterly criticized in Republican circles. 66 In the late nineteenth century, however, when the construction of the unified state had been achieved, many liberal thinkers ðand even democrats and radicalsþ declared themselves favorable to the colonial enterprise. We need to remember that an aversion for a hierarchized vision of the relations among peoples is, in the final analysis, a recent, twentieth-century acquisition springing from a progressive view of culture. A historiographic debate that began some years ago has focused on the dichotomy between the nationalism of the early ottocento, which fought against oppression and for liberal constitutions, and that of the end of the century, which turned toward aggressive and chauvinistic policies or, to put it in Eric J. Hobsbawm s terms, the dichotomy between the German and the French national models. 67 The cases discussed here show that, according to the biographies of many prominent figures of the time, that dichotomy was not perceived. To be sure, national patriotism was transformed into racial pride, as Catellani noted, 68 but this was felt to be a natural development. Moreover, with the achievement of unification, was not Italy moving toward becoming absorbed in the historic flux in the generous competition, as Mancini put it of the great nations of Europe, all of which were imperialist? The contradictory nature of Italian colonialism after the Risorgimento seems in all ways similar to that of Republican France of the same period, beginning with the consideration that for the imperialistic impulse founded on its mission 64 See Labanca, Oltremare, Romano, L ideologia del colonialismo italiano, See Arcangelo Ghisleri, Le razze umane e il diritto della questione coloniale ðbergamo, 1888Þ, an extract from the review Cuore e critica, and Battaglia, La prima guerra d Africa, See Federico Chabod, L idea di nazione, ed. Armando Saitta and Ernesto Sestan ðbari, 1961Þ; Eric J. Hobsbawm, Nations and Nationalism since 1780: Programme, Myth, Reality ðcambridge, 1990Þ. 68 Enrico Catellani, Gli imperialismi d oggi e l equilibrio politico del domani, Rivista coloniale 11 ð1906þ: 350ff.

14 Race and Empire 813 civilisatrice, the French managed to obscure the fundamental contradiction between democracy and the forcible acquisition of an empire, as Conklin argues. 69 The question can be read differently, however: for the French, who held their acquisitions regarding individual rights to be the expression of a universal ethics, it was completely natural to consider themselves masters of the earth and guardians of superior notions, as Jules Ferry stated to Parliament in the early 1880s. 70 Regarding Tunisia, a French colony from 1881 on, the official doctrine that supported the legal structure of the protectorate stated that the Bey was free precisely thanks to the French protectorate, which raises the question of the type of liberty constructed by European liberalism and by international law throughout the centuries. 71 For many in Italy as in France, democracy and imperialism were not felt to be contradictory terms. The distinction between countries ðor peoplesþ and states, in an evolutionary framework, was totally functional from that viewpoint. Moreover, even if in Great Britain some liberals were opposed to imperialism, in many respects the contradiction between imperialism and liberalism had been resolved: the protean ideology of British imperialism occupied a permanent space in liberal ideology and discourse regarding the imperialism of free trade, even in its various interpretations. 72 Even the unease of the liberals after the occupation of Egypt was resolved within the liberal ideology with an appeal to the classic themes of progress and a guarantee of foreign interests. For this reason, many English liberals saw the 1880s as a watershed moment. 73 Recent works have stressed the general ambivalence of European liberalism in its attitude toward rights and colonialism, an attitude that can also be explained in psychoanalytical terms. 74 The European framework suggests not concentrating on judging contradictory individual figures or particular policies but rather discerning a more general trend in European liberalism that originated from some of its internal premises. This is the much more complex question of liberal racism. Liberal Racism: The Myth of Progress and Differentialist Practice What law should pertain to natives? That question lay at the center of debate among the experts on colonial law beginning in the late nineteenth century. The Italian jurists refused the principle of one justice, which they considered an ex- 69 Conklin, A Mission to Civilize, Ibid., Nathaniel Berman, Passion and Ambivalence: Colonialism, Nationalism, and International Law ðleiden and Boston, 2012Þ, John Darwin, The Empire Project: The Rise and Fall of the British World-System ðcambridge, 2009Þ, Ibid., See also the classic John Roach, Liberalism and the Victorian Intelligentsia, Cambridge Historical Journal 13, no. 1 ð1957þ: Berman, Passion and Ambivalence, 412ff.

15 814 De Napoli pression of the French Enlightenment. 75 That orientation was based on a wellknown decision of the French Cour de Cassation of 1865 that had asserted, as a principle, that legislation follows the flag: this was the criterion of the territorial nature of juridical norms according to which all individuals subject to the same state power were subject to the same laws. 76 In ideal terms, that system was a consequence of an explicitly assimilationist ideology: the true aim of French colonial policy was to shape a hundred million citoyens. Renzo Sertoli Salis explains how, precisely in reaction to Enlightenment egalitarianism, the Italian colonial juridical system sought inspiration in a different and differentialist criterion based on the principle of respect for indigenous law, with the one reservation of colonial public order. 77 As he notes, It was precisely in the final years of the last century that a lively reaction occurred against those methods founded, as has been stated, on principles of the unity of the nature of man that tended to bend the entire globe under the same political, administrative, and civil regime. 78 One model for the Italian doctrine was the Congrès International de Sociologie Coloniale held in Paris in Affirming the need for knowledge of and respect for the various indigenous systems of law, that congress promoted a differentiation between the codes and jurisdictions intended for citizens and those intended for subject populations, in particular stressing the need for drawing up a Penal Code for the use of the indigenous population. 80 According to Sertoli Salis, the Paris congress signaled the decline of the assimilationist theory. Even Mariano D Amelio, perhaps the most brilliant of the jurists trained in the colonies, execrated the French example. Commenting on a provision in the Eritrean Civil Code of 1909 stipulating that when a native woman marries a citizen she acquires citizenship, but when widowed she returns to subject status, D Amelio contended: In this way Italy remains immune to the error that France now laments regarding the assimilation of colonial subjects as citizens, which reached the point of automatically creating in its 75 Renzo Sertoli Salis, La giustizia indigena nelle colonie ðpadua, 1933Þ, Luciano Martone, Giustizia coloniale: Modelli e prassi penale per i sudditi d Africa dell età giolittiana al facismo ðnaples, 2002Þ, Sertoli Salis, La giustizia indigena nelle colonie, Ibid. 79 Although the first theorization of the concept of assimilation goes back to the time of the French Revolution, a fundamental text is Arthur Girault, Principes de colonisation et de legislation coloniale ðparis, 1895Þ. The 1900 Congrès was fundamental for the elaboration of French policies, even though some protested that those who supported assimilation were unable to agree among themselves about what should be meant by the term. On these questions, see Martin Deming Lewis, One Hundred Million Frenchmen: The Assimilation Theory in French Colonial Policy, Comparative Studies in Society and History 2 ð1962þ: Martone, Giustizia coloniale, 6.

16 Race and Empire 815 colonies a new body of Frenchmen about whom subsequently ½FranceŠ did not seem satisfied. 81 Similarly, for the great jurist Santi Romano, one of the most influential men of law in Italy in the early novecento, the impossibility of assimilation was very clearly based on race. According to him, the need to distinguish between citizens and subjects was almost indispensable whenever the indigenous people are of a race different from the inhabitants of the metropolis, and making that distinction was in the interests of both the colonizing country and the indigenous population itself. 82 The topic of racial diversity formed the core of differentialist arguments and led to an evaluation of the civilization gap on which the legitimation of domination and the separation of juridical space in the colonies were based. 83 The colonial judge Ranieri Falcone spoke explicitly in his Disegno di codice penale of the need for a racial code to safeguard our ethnic and political supremacy. 84 Falcone held a law valid for all to be inconceivable because every people every race had to have regulations that were born of its particular historical experience and that were most appropriate for it. An insistence on racial difference was the legitimating discourse in the organization of juridical matters in the colonies. For the jurists who commented on and sought to direct Italian colonial policy, reasoning of the sort adopted assumed the paternalistic rhetoric of respect of indigenous juridical traditions. 85 The actual situation was quite different. One extreme sign of the contradiction between the declaration of respect for indigenous juridical traditions and the actual effects of differentialism was the reintroduction of corporal punishment and death sentences in the colonies for natives alone, of course. This is what made it possible, in a liberal age, to conceive of a penal system with strongly racial characteristics 86 in homage to the principles of the positive school of penal 81 Mariano D Amelio, Colonia Eritrea, in Enciclopedia giuridica ðmilan, 1913Þ, vol. 3, pt. 2, 1, Santi Romano, Corso di diritto coloniale impartito nel R. Istituto di scienze sociali C. Alfieri di Firenze ðrome, 1918Þ, 1: See also Carlo Bersani, Forme di appartenenza e diritto di cittadinanza nell Italia contemporanea, Le carte e la storia 1 ð2011þ: Pietro Costa, Il fardello della civilizzazione: Metamorfosi della sovranità nella giuscolonialistica italiana, Quaderni fiorentini ð Þ: Falcone, quoted in Martone, Giustizia coloniale, Luciano Martone was thus quite right when he stressed, quoting the jurist Ernesto Cucinotta, that the always declared and always violated respect of indigenous law was...the constant rule of a system of racial separation, which was presented, however, not as an expression of the law or power of the empire but rather as a faithful echo of the needs and demands of the new road of progress and the civilizing mission of the State : Martone, Giustizia coloniale, 24, note. 86 Ibid., 30.

17 816 De Napoli law. 87 In 1910, one exponent of that school, Raffaele Garofalo, insisted on the need for a penal code that would establish differentiated penalties because of the racial differences that existed in the colonies: It was really not possible not to take into account the effect of a given penal threat on people who have ideas, sensibilities, and traditions quite different from our own, so that one penalty or another, either in its nature or its severity, might turn out to be totally inefficacious or else disproportionate or intolerable for the indigenous population. 88 According to Ferdinando Martini, the first civil governor of the colony of Eritrea, the death penalty was the only punishment capable of deterring the gravest sorts of blood crimes. Obviously, the argument applied only to natives. Moreover, for the indigenous population imprisonment would have been more insupportable than capital punishment, which thus represented a lesser penalty. In differentialist juridical discourse there was a full affirmation of the superiority of European law that is, of the law of the colonizing nations accompanied by an assertion of the ethnicity of that law, which made it inapplicable to the inferior African populations. This was an implicit renunciation of the juridical civilizing mission of the Italian people, inspired by the myth of Imperial Rome, that held the exportation of Roman law that is, European and continental civil law as the first of civilizing works. That very rhetorical construction had of course played a major role in the jurists justification of the colonial enterprise. 89 Differentialist juridical discourse ended up contradicting the idea of the juridical civilizing mission, however. 90 It was claimed that Italy had a juridical mission, but when the death penalty and corporal punishment were instituted only for natives, it signaled the failure of that mission. Differentialism, imbued as it was with European ethnic presuppositions, was the very opposite of the idea of that mission as it had been elaborated in France. Renunciation of the juridical mission, in my opinion, was one of the most important distortions 91 of a colonial law that was characterized structurally by both a tendency to establish limits and unbridgeable distances and by the need to incorporate the 87 See Maria L. Sagù, Sui tentativi di codificazione per la colonia Eritrea, Clio 4 ð1986þ: Raffaele Garofalo, Il codice penale della colonia Eritrea, Rivista coloniale, anno 4 ð1909þ: See Guido Alpa, La cultura delle regole: Storia del diritto civile italiano ðrome and Bari, 2000Þ, See Luciano Martone, Diritto d oltremare: Legge e ordine per le colonie del Regno d Italia ðmilan, 2008Þ, For general reflections on the distortion of European law in the colonies, see Nani, Ai confini della nazione, 49.

18 Race and Empire 817 colonial subjects themselves, with whom the dominators shared a common juridical space that, consequently, had to be differentiated. 92 The jurists could not avoid sensing a contradiction between the juridical civilizing mission and the differentialist choice. They sought some sort of mediation between the two and, once again, they found it in the evolutionist paradigm. Ranieri Falcone, speaking before the Colonial Congress of Asmara of 1905, defended a dualistic choice. He argued that the differentiation of the law... will do much to attenuate the difficulties of the colonial legislator, whose duty it is to take into account the variety of customs, religions, institutions, and traditions of the multiform indigenous people. The action of time, and then that of the men whose duty it is to govern or to administer justice, will eventually remove all dualism between metropolitan law and indigenous law, thanks to the unification of the laws. 93 It was precisely the elaboration of the five colonial codes in which Falcone participated that hastened Italy s civilizing task. 94 What was needed, according to Falcone, was a gradual process for the juridical betterment and the education of an inferior human species. Race played a role in evaluating that inferiority, as did ethical and religious convictions and the varying levels of intelligence of the peoples who made up the mosaic of the Eritrean population. The judges Ranieri Falcone and William Caffarel stressed the need for a gradual evolution of juridical civilization, and they expressed hope that the Eritrean colony would have a legislation of its own, different, where necessary, from that of the motherland. They did not fail to note, however, the colonizers duty, with slow and gradual progress, to evolve indigenous awareness toward our more complex and more elevated concepts of law. 95 The natives of the colonies occupied a position on the evolutionary scale a long staircase with many steps that was inferior to that of Europeans, but no one denied that natives were capable of rising on that scale. 96 Moreover, suggestions coming from English nineteenth-century liberalism did not exclude a path of civil and juridical development of the Indians that would lead them to independence. 97 Like Mancini, Falcone and Caffarel followed evolutionist concepts in picturing the Africans as children in comparison with Europeans, who were adults. Liberal colonialism belongs within the framework of a philosophy 92 See Sandro Mezzadra and Enrica Rigo, Diritti d Europa: Una prospettiva postcoloniale sul diritto coloniale, in Oltremare: Diritto e istituzioni dal colonialismo all età postcoloniale, ed. Aldo Mazzacane ðnaples, 2006Þ, , esp Atti del Congresso coloniale italiano in Asmara, Ibid., Ibid., Ibid., Mezzadra and Rigo, Diritti d Europa, 178.

19 818 De Napoli of history that believes in progress, one of the most frequented crossroads of the period. 98 Juridical differentiation was to be temporary, in the expectation that the natives would progress, and that meant that progress had to be gradual. The year 1911 brought the war in Libya. Contemporary public opinion was stampeded by an increasingly intense press campaign praising the resources of that North African land but also founding colonial aspirations on a need to redeem the nation after the defeat of Adua in The Pascolian myth of the great proletariat that was to launch itself into the colonial enterprise was imbued with Socialist-leaning rhetoric that implied that the colonies would be an outlet for a poor but prolific land and that Italian colonialism was a demographic colonialism, different from the plutocratic imperialism of both France and England. 99 Given that context, in the second decade of the twentieth century the war in Libya provided juridical culture with an opportunity for a colonialist discourse founded on the exaltation of blood and race. 100 In trade union circles Sorel s pronouncements, drawn from the myth of the revolutionary war, began to circulate. The workers imperialism that they proposed became one of the ideological premises of Fascism. 101 Historians have discussed the true consistency of an Italian model of colonialism, at times locating the particular motivation of Italian colonialism in a search for internal prestige. 102 To summarize colonialism in the age of liberalism from the viewpoint of juridical ideology: in general, the jurists who justified Italian expansion forcefully insisted on the idea of the civilizing mission, which seems to me to represent a principal theme that returns in an entire publicity campaign bridging the nineteenth and twentieth centuries, along with the topic of a search for new lands for emigrant workers. That insistence brought Italy closer to France, the country that best represented the mission civilisatrice and an imperial grandeur that Italians could observe close at hand. Italy spelled out the idea of the civilizing mission differently from the French, however, and Italian intellectuals criticized France for its policies of assimilation. Italians found it inconceivable to make citizens of subjects in any manner whatsoever. A civilizing mission without assimilation might seem to be one of the paradoxes of the colonialist ideology in Italy. From the point of view of indigenous policies, in fact, Italians seemed 98 Costa, Il fardello della civilizzazione, Giovanni Pascoli, La grande proletaria si è mossa ð1911þ, reprinted in Pascoli, Patria e umanità: Raccolta di scritti e discorsi ðbologna, 1923Þ. See also Labanca, Oltremare, See Giulio Cianferotti, Giuristi e mondo accademico di fronte all impresa di Tripoli ðmilan, 1984Þ. 101 See Zeev Sternhell, Naissance de l idéologie fasciste ðparis, 1989Þ, and The Birth of Fascist Ideology ðprinceton, NJ, 1994Þ, See Nani, Ai confini della nazione, 46; Labanca, Oltremare, 473ff.

20 Race and Empire 819 to express a much greater admiration for the British Empire, and particularly for its pragmatic ability to dominate and administer. Even if France was the empire that Italians implicitly had in mind, they held the British model to be the one to imitate. According to Mariano D Amelio, writing in 1913, the British represented modern Romans, 103 and in fact the English too often defined themselves as new Romans. 104 In two essays published in the early twentieth century and reprinted on several occasions, the Irish jurist James Bryce, former Under-Secretary of State for Foreign Affairs under Gladstone in the 1880s, proposed a close political and juridical comparison between the Roman Empire and the British Empire in India, focusing in particular on the problem of fusion with the provincials and on the diffusion throughout the world of juridical systems promoted by the two empires. 105 Between the eighteenth and nineteenth centuries, the British, with an awareness of being the true heirs of the Romans, also harbored a fondness for Italy, and reference to the Roman tradition became a cliché not only of the culture of travel but also of political rhetoric. 106 Where Italy is concerned, it is clear that attributing the epithet of new Romans to the English also functioned as a way to set up a model for Italian political colonization. The English according to contemporary parlance in Italy dominated by insisting on differences without universalist and abstract illusions; their policies were not derived from the egalitarian concepts of the Enlightenment. What is more, racial difference was a criterion that was formally considered to be crucial in the administration of the British colonies. 107 This is why Italian juridical ideology brought together a strong idea of civilizing mission with the theory and practice of an ideology of difference imbued with racism. Italian juridical ideology was a hybrid. I want to emphasize that jurists, in harmony with a general historical picture that sees them as playing a preponderant role in the construction of the late nineteenth-century state, made notable contributions to establishing the idea of mission. Indeed, as Bovio had pitilessly stressed against the objections of some anticolonialist currents Italy did not have a great deal of civilization that it could export. It was held back by the fragility of a liberal construction that was 103 D Amelio, Colonia Eritrea, 1, See Robert L. Tignor, Foreword to the Second Edition, in Jürgen Osterhammel, Colonialism: A Theoretical Overview ðprinceton, NJ, 2005Þ; Tignor, Lord Cromer. 105 James Bryce, The Ancient Roman Empire and the British Empire in India, and The Diffusion of Roman and English Law throughout the World, in James Brice, Studies in History and Jurisprudence, 2 vols. ðoxford, 1901Þ. The topic has been treated recently in Krishan Kumar, Greece and Rome in the British Empire: Contrasting Role Models, Journal of British Studies 51, no. 1 ð2012þ: See John Pemble, The Mediterranean Passion: Victorians and Edwardians in the South ðoxford: Clarendon Press; New York: Oxford University Press, 1987Þ, See Philippa Levine, The British Empire: Sunrise to Sunset ðharlow and New York, 2007Þ, in Italian translation as L impero britannico ðbologna, 2009Þ,

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