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Post Spain's 1978 Constitution Legitimized Franco
Created by John Eipper on 06/13/19 4:41 AM

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Spain's 1978 Constitution Legitimized Franco (Jordi Molins, Spain, 06/13/19 4:41 am)

Paul Preston wrote on June 12th: "The issue raised by the Tribunal Supremo is the notion that [Franco] was head of state since [...] the end of September 1936. That is acceptable only if the initial premise is that the military coup of July 1936 was legitimate. It was not. At that time, the head of the Spanish state was Manuel Azaña."

From a historian's point of view, I fully agree with Sir Paul.

However, in legal terms, Spain's "1978 regime" acknowledges the July 1936 military coup as legitimate and the Spanish Republic as illegitimate after that date. Note: I define "legitimate" as the "acknowledged to be legally valid," and "illegitimate" as "acknowledged not to be legally valid."

My axiom is that a modern, not-at-war State has one, and only one, valid legal code. A legal code cannot be inconsistent with itself (if the legal code states A, it cannot state not-A).

Now, the Spanish constitution states: "(...) Queda [derogado el fuero] del Trabajo, de 9 de marzo de 1938..." (The "fuero del Trabajo", as of March 9, 1938, is abolished).

http://www.congreso.es/consti/constitucion/indice/titulos/articulos.jsp?ini=1&tipo=5

And from:

https://www.boe.es/datos/pdfs/BOE//1936/032/J00125-00126.pdf

...we can see that Franco was nominated as the Spanish Head of Government on September 30, 1936. As is expected, "all laws opposing this nomination are abolished" (5th article).

Since:

According to the Spanish Republican regime, Manuel Azaña was the Spanish Head of Government up to March 3, 1939,

The Spanish Constitution "abolishes" a Francoist law as of March 9, 1938,

and 1938 happens before 1939,

If we use the axiom stated above, I claim the Spanish Constitution, the basis of the Spanish "1978 regime," acknowledges the Francoist regime as the legitimate one, and considers the Spanish Republic regime as illegitimate. The proof is as follows:

By abolishing Francoist laws, the Spanish Constitution de facto considers the Francoist laws were legitimate before the day the Spanish Constitution entered into force. The reason is that by my axiom, one and one only legal code can be valid, at a given point in time. So, it is obvious that the day before the Spanish Constitution entered into force, the legitimate law was the Francoist one. The reason is the Francoist regime was not retroactively abolished before the day the Spanish Constitution entered into force (since always there has to be a valid legal code).

Even more, since the "Fuero del Trabajo," as of March 9, 1938, is abolished, this means the Spanish Constitution acknowledges the Francoist regime was legitimate as of March 9, 1938; otherwise, the "Fuero del Trabajo" could not be abolished, since it would not be valid in the first place. In other words, since the "Fuero del Trabajo" was abolished by the Spanish Constitution, this means the Spanish Constitution considers the "previous legitimate legal code" (the Francoist one) was valid at least as far as March 9, 1938 (you cannot abolish a non-existing law).

Since there can be only one legitimate legal code at any given time, this implies the Spanish Constitution considers the Francoist regime was legitimate as of March 9, 1938 (otherwise, why bothering abolishing an illegitimate law?) it cannot be the Spanish Constitution considers that Azaña was the legitimate President of the Government in 1938. On the contrary, Franco was.

JE comments:  Jordi Molins is certainly not interested in "legitimizing" Franco, but rather in de-legitimizing a constitution which was born of Francoism.  Do I follow your argument, Jordi?  To my mind, the problem is that during the Civil War, Spain did not have one legal code, but two.  Didn't Spain in 1978 have to work with the facts on the ground--especially given the very delicate state of democracy at that time?  Even three years later, with the Tejero putsch, it was far from certain that Spanish democracy would endure.


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  • Thoughts on Franco Exhumation (Angel Vinas, Belgium 06/14/19 3:28 AM)
    Several colleagues have provided useful insights into the debate currently raging in Spain about the preliminary sentence of the Spanish Supreme Court regarding Franco's exhumation. I will address three points.

    1) Acknowledgment of the need to wait for the final decision, which may last a few months longer or even more, on the exhumation itself. This kind of procrastination has been explained because of the alleged protection of the rights of the Franco family in face of the "irreparable" damage which might be caused before the final decision is taken. It means, legally and politically, that those personal rights are put before the general interest as defined by Parliament and Government concurring in the exhumation.


    2) Identification of Franco as head of State from 1 October 1936 to his death. This has caused a furore because it would seem to ignore the realities of the time. It is the point I will discuss in my announced post this coming Tuesday.


    3) Acknowledgment of the legality of the Franco dictatorship, as argued by Jordi Molins. This is a moot point. The Spanish State (as defined by Franco) existed. It was legitimised in terms of both Spanish and international law. One can differ as to when this happened. With Sir Paul Preston I agree that it was recognised as a fully fledged member of the international community by the series of diplomatic recognition in 1939.  I'm not a lawyer but my argument will combine historical facts, precedents and a small reference to legal texts which haven't prominently appeared in the discussion so far.


    My conclusion? For reasons not made explicit (which I find a pity) the magistrates of the Supreme Court have deemed it advisable not to found their decision on any legal text. This is in my view an important omission.


    JE comments:  Looking forward to your longer essay, Ángel.  We'll post it on WAIS, with an English translation shortly after that.



    My outsider's perspective:  the exhumation controversy seems to be doing little more than energizing the nostalgists and neo-Francoists.  Am I off the mark?

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  • More Thoughts on the Spanish Constitution and Franco (Jordi Molins, Spain 06/14/19 4:31 AM)
    John Eipper wrote: "During the Civil War, Spain did not have one legal code, but two."

    I fully agree with John from a historian's point of view. For this reason my axiom emphasized the "not-at-war" adjective: "a modern, not-at-war State has one, and only one, valid legal code."


    However, when a country ceases to be at war, one of the tasks for the corresponding new Constitution is to "put order." In particular, a new Constitution must be drafted in such a way that the axiom above is valid at all times (including the "war times").


    As a consequence, despite the fact that historically there were two legal codes coexisting in time, the Spanish Constitution had to "choose sides." And the Spanish Constitution chose to side with Franco, and away from the Spanish Republic.


    The reason is clear: if the Spanish Constitution abolished a 1938 Francoist law in 1978, this means by definition (you can only abolish a legitimate law; you do not bother with illegitimate laws, since you do not recognize them as valid to start with) that the Spanish Constitution believed in 1938 the legitimate law in Spain was the Francoist one, and not the Republican one (otherwise, the Spanish Constitution would acknowledge two different legal codes at the same time in 1938, which is anathema for a modern Constitution).


    JE comments:  How exactly does the 1978 Constitution describe the Franco era?  Is the Caudillo ever mentioned by name?  I presume not, but wouldn't a constitutional democracy have to acknowledge the non-democratic system that existed prior?

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    • Was Franco Mentioned in the 1978 Constitution? (José Ignacio Soler, Venezuela 06/17/19 5:42 AM)

      When commenting on Jordi Molins's post of June 14th, John E asked regarding Spain, "wouldn't a constitutional democracy have to acknowledge the non-democratic system that existed prior?" He also asked how the 1978 Constitution describes the Franco era.



      First, John's second question: El Caudillo and his regime are not mentioned whatsoever, not by name or by any other means.



      Now to turn to the first question. Is it necessary for a democratic constitution to renounce and deny a previous antidemocratic regime?  Posing that question in the Spanish case is perhaps to overlook the willingness of Spanish society to accept a democratic constitution in place of a dictatorial one. After 40 years, society was still divided between Franco supporters and his adversaries--Nacionales or rebels if you like--and Republicans. A constitutional law to favor reconciliation was essential. To mention or condemn the Franco regime would have been an insurmountable obstacle for the transition.


      Perhaps the only very important concession to conservatives and supporters of the previous regime was to declare that "La forma política del Estado español es la Monarquía parlamentaria." Namely, that the Spanish state would be a parliamentary monarchy, a form otherwise common in other European nations, giving the king a role that many Republicans still today refuse to acknowledge.



      Jordi Molins attempts to discredit the Spanish Constitution by showing that it legitimated the Franco regime when it abolished the "ley del Trabajo de 1938." He ignores other legitimate Republican laws that were in force during the war. In this same constitutional article, other older laws were abolished if they were in conflict with the "constitutional principles presently established." Therefore, the removal of a 1938 law was not only necessary because it was in force for more than 40 years of the Franco regime. This measure was necessary because it might be in conflict with the new constitution.


      JE comments:  A legal quandary:  can you abolish a law without recognizing the legitimacy of a system that enacted it?  I am reminded of a US Civil War contradiction:  Lincoln arrested and exiled some "Copperheads" (Northern Confederate sympathizers) to the US Confederacy--yet he did not recognize the legitimacy of the Secessionist regime.  (See the example of Ohio Copperhead Clement Vallandigham.)


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