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The tensions between judicial and executive authorities regarding so-called Gypsies in fin de siècle Germany and Italy reveals an inherent contradiction between the universalist dictates of the modern Rechtsstaat and the requirements of building a national state free of perceived outsiders. The frustration of executive authorities with judicial authorities who insisted on protecting the universalist individual enshrined in law pushed executive authorities to utilize the 'state of exception' to achieve their vision of the national community. Rather than choosing to create illiberal laws that would expressly exclude Gypsies from the national body, and would resolve the tension with the judiciary, authorities in Germany and Italy instead chose to go around the law by treating Gypsies as an exception not subject to the law. The state of exception not only deprived those labelled as Gypsies of a method of resistance, since many were able to use unwilling courts to protect them from over-zealous executive authorities, but also created a group of stateless people, persecuted and lacking basic human rights.

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In both Germany and Italy before WWI, populations labelled as Gypsies found themselves in a “state of exception” which aimed at their elimination from the nation-state by targeting them with policies emanating from the executive. Both states adhered to the liberal idea of equality before the law, but used the flexibility provided by executive authority to pressure Gypsies to leave the state. After WWI, both Germany and Italy were forced to retain “Gypsies” inside the state as a result of changing geopolitical circumstances. However, in fascist Italy before WWII, executive authorities continued to operate in a “state of exception” and ceased adhering to the rule of law, interning Gypsies in concentration camps and seeking to eliminate them through forced assimilation. In Weimar Germany, legislative policies sought to eliminate Gypsies through bringing them inside of the law. The contradiction between increasingly racialized notion of Gypsy inassimilability and forced assimilation’s inevitable failures certainly laid the groundwork for extreme measures in both places during WWII.

No abstract