Previous posts in this discussion:
PostWas Franco Mentioned in the 1978 Constitution? (José Ignacio Soler, Venezuela, 06/17/19 6:26 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.)