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Post More Thoughts on the Spanish Constitution and Franco
Created by John Eipper on 06/14/19 4:31 AM

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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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