Italian Judges and Judicial Practice in Libya: A Legal Experiment in Multinormativity

The theme of diversity and social inequality emerges strongly in all colonial experiences. One of the main themes of the Italian colonial experience in Libya was the interaction of settlers with local populations. Indeed Libya, differently from the other Italian settlements in Africa, was a “legal laboratory” in which legislators experimented a model of occupation based on collaboration with local populations. It was necessary to create a legal framework that would take into account the multi-ethnic and multi-religious composition of that area. Indeed the country, already before the Italian occupation, was regulated by a multiplicity of rules such as Ottoman law, Islamic law, norms of tribal customary law, Jewish law and customary principles. The paper is focused on the Libyan judicial system, its emergence and evolution during the first part of the Italian colonial period. In Libya the judicial system was created taking into account the race, citizenship and religion of the population. In this situation Italian judges end up having an active role not only for identifying the law that must be applied or for finding the norm most suitable in the specific case (this is what usually happens in civil law systems), but they also end up having an active role in the creation of an ‘Italian-Lybian colonial law’ that had its origin in daily social practice: in this way in spite of any rigid formalism, the judges transformed themselves into ‘law-makers’. To fully understand the legal dynamics that occur within multicultural societies, such as the colonial ones, we must assume that the law’s point of reference is society and not the State. We must also keep in mind that the legal norm of the State is just one of many possible forms in which the law expresses and manifests itself. Law is primarily a social and cultural phenomenon that includes knowledge, beliefs, morals and customs of a society. In this regard, as we will see, the notion of multinormativity can be useful in order to understand the legal dynamics that occur within multicultural societies in which there are “modes of normativity not structured by our idea of law”.