Click Here to read Spain's Political Identity at a Crossroads – Part 1.
A crowd gathers in Madrid in protest of a proposal to move the remains of the late dictator Francisco Franco from the Valley of the Fallen to the Almudena Cathedral in Madrid.[1]
Overview
Over the last two decades, Spanish society has reckoned with the enduring effects of Francisco Franco’s dictatorship, which lasted from 1939 following a violent civil war until Franco’s death in 1975.[2] Government officials enacted laws and policies to reconcile past cultural wounds resulting from atrocities committed during the Civil War and the subsequent dictatorship. Specifically, this article will focus on the Ley de Memoria Histórica (the “Law of Historic Memory”), enacted in 2007, and the Ley de la Memoria Democrática (the “Law of Democratic Memory”), enacted in 2022.[3] Each law represents a way in which Spain’s lawmakers sought to ease unsettled concerns, which remain at the center of Spanish political apprehensions. As seen in the general elections held in June of 2023, many Spaniards still fear the looming threat of far-right politics echoing similar values imposed during the Francoist era.[4]
Historical Background
To understand the significance of both the Law of Historic Memory and the Law of Democratic Memory, it is necessary to understand Spain’s political history. Central to the motivation behind both laws are the lasting effects of the dictatorship of Francisco Franco.[5] Franco ascended into power following a nationalistic military coup which started the Spanish Civil War (1936-1939) and remained in power until his death in 1975.[6] During the second half of the 1970s, Spanish political forces facilitated what is now referred to as the “Transition to Democracy.”[7]
A major milestone for the transition to democracy was the Amnesty Law of 1977 (Ley de Amnistía).[8] Lawmakers agreed across the entire political spectrum, from far left to far right, to prevent investigations into crimes and atrocities committed during the Civil War and throughout the Franco dictatorship.[9] The Amnesty Law of 1977 was an effort to move toward reconciliation and past deep-seated wounds between political forces.[10] This law allowed for negotiations through compromise, leading to establishment of a democratic constitutional monarchy set forth in the Spanish Constitution of 1978.[11] Spanish law makers believed the Amnesty Law of 1977 would facilitate the transition to democracy by forgoing reconciliation of past political crimes committed during the Civil War and Franco’s dictatorship. However, while Spanish politicians pushed forward a metaphorical campaign of forgetting, Spanish citizens still have not forgotten and remain divided about its past.[12] As such, modern Spanish democracy developed under the pacto del olvido or “pact of forgetting.”[13] The pacto del olvido resulted in a cultural trade-off that ignored the reconciliation of past wounds in exchange for a smooth transition into a democratic monarchy.[14] The Law of Historic Memory and the Law of Democratic Memory broke the pacto del olvido by legally recognizing the past atrocities and violent history of the Civil War and subsequent Franco dictatorship.
Twenty-First Century Legislative Reconciliation
Almost thirty years after the transition to democracy, Spanish parliament approved the Law of Historic Memory in December 2007.[15] Efforts to pass the Law of Historic Memory were spearheaded by José Luis Rodríguez Zapatero, the President of the Socialists Workers’ Party (Partido Socialista Obrero Español), the governing majority from 2004 to 2011.[16] The Zapatero administration led efforts to enact this law as “belated memory politics” or post-transitional justice.[17] The Law of Historic Memory formally denounced Franco's fascist regime, mandated local governments responsible for the exhumation of bodies from mass graves created during the Civil War, ordered the removal of Franco-era symbols, and declared Franco-era military trials illegitimate.[18] The Popular Party (Partido Popular) opposed the Law of Historic Memory, arguing the law would resurface past troubles.[19]
In 2022, fourteen years since enacting the Law of Historic Memory, the Spanish government under Pedro Sánchez’s PSOE coalition government, approved the Law of Democratic Memory.[20] Spanish legislators intended for the Law of Democratic Memory to prevent loopholes and strengthen the 2007 Law of Historic Memory by widening the range of prosecutable crimes arising from the Franco dictatorship and thereby broadening the possible class of people who qualify as victims.[21] The Law of Democratic Memory also further empowers the government’s responsibility to search and exhume mass unmarked graves from the Civil War.[22] Additionally, the law proposes to repurpose the Valley of the Fallen as a site of remembrance for those who lost their lives during the Civil War and throughout the Franco dictatorship.[23] Most notably, the Law of Democratic Memory outlaws the entire Franco-era governing structure, as opposed to simply condoning the regime as in the 2007 Law of Historic Memory.[24]
Both iterations of law formally delegitimize any remaining ties between modern Spain and the Francoist regime of Spain’s dictatorial years. Spain’s transition to democracy depicts a modern political success story of reconciliation. However, the Law of Historic Memory and the Law of Democratic Memory reignite concerns for Spaniards who view “forgetting” the country’s complex history as a worthy exchange for temporary cooperation among political factions in building a democratic foundation. Additionally, critics believe the laws represent a grand symbolic gesture which glosses over complexities of difficult conversations and accountability.[25]
Although the pacto del ovlido model of reconciliation may have been key in the successful transition to democracy, the cracks in this foundation are evident. Spanish society still fears the rise of far-right political movements and are concerned to see far-right ideas back in mainstream politics. The Law of Historic Memory and Law of Democratic Memory not only renounce anti-democratic ideas, but also create value in truthful recordkeeping, recording eyewitness statements, and exhuming mass graves. Both laws try to cultivate a coherent and truthful history to avoid future abuses of power.
The path towards reconciliation does not stop with legislation or symbolic gestures, albeit important in the process of remembrance. As echoed by critics, enacting a grand symbolic law does not replace difficult conversations. At this point, Spanish society finds itself at a crossroads in which the political culture is forcing itself open to reconcile and acknowledge the past. A legal framework alone is simply insufficient to achieve this goal. All sectors of Spanish society must join to understand modern the country’s political identity through a truthful retelling of history and meaningful political action.
[1] Oscar del Pozo, photograph of demonstrators in Madrid, in News Desk, Spain Rules Franco Regime ‘Illegal’ with New ‘Democratic Memory Law’, Spain in English (July 15, 2022), https://www.spainenglish.com/2022/07/15/spain-rules-franco-regime-illegal-with-new-democratic-memory-law/.
[2] John S. Richardson et al., Spain: The Civil War, Encyclopedia Britannica (last visited 8 Apr. 2024),https://www.britannica.com/place/Spain/The-Civil-War.
[3] Ley 52/2007 de 26 de diciembre, por la que se reconocen y amplian derechos y se establecen medidas en favor de quienes padecieron persecución o violencia durante la guerra civil y la dictadura [hereinafter Ley 52/2007]; Ley 20/2022, de 19 de octubre, de Memoria Democrática [hereinafter Ley 20/2022].
[4] This article focuses on ways in which Spanish lawmakers enacted laws to create opportunities for reconciliation and ease concerns of reemerging far right ideas still present, however, recognizing that nationalism, specifically Catalonian nationalism, is a central concern for Spaniards as Pedro Sánchez attempts coalition building by seeking support from Junts. See Barney Jopson, Catalan fugitive Carles Puigdemont Demands Amnesty to Support Spanish Leader, Financial Times (Sept. 5, 2023), https://www.ft.com/content/5d3ada9c-a330-4be3-a4fe-ae5920a93e76; c.f. Guy Hedgecoe, The Beginning of the End? Catalan Amnesty Stirs Up a Political Storm in Spain, Politico (Sept. 15, 2023, 4:00 AM), https://www.politico.eu/article/spain-catalan-amnesty-stir-up-political-storm/; see generally Pablo Aldrey, Letter: Catalan Amnesty Will Not Foster Genuine Reconciliation, Financial Times, (Nov. 8, 2023), https://www.ft.com/content/d6d00eda-1002-498a-9f40-642e237f74bd; but c.f. Mikel Jaso, Spain Is Doing Something Brave, New York Times (Jan. 8, 2024), https://www.nytimes.com/2024/01/08/opinion/spain-sanchez-amnesty-law.html.
[5] Madeleine Davis, Is Spain Recovering Its Memory? Breaking the Pacto del Olvido, 27 HUM. RTS. Q. 858, 859 (2005).
[6] Richardson et al., supra note 2.
[7] Id.
[8] Peter Burbridge, Waking the Dead of the Spanish Civil War: Judge Baltasar Garzon and the Spanish Law of Historical Memory, 9 J. INT'l CRIM. Just. 753, 754 (2011).
[9] Id.
[10] Id.
[11] Id. at 753.
[12] Id. at 754.
[13] Davis, supra note 5.
[14] Id. at 863.
[15] Ley 52/2007, supra note 3.
[16] Davis, supra note 4, at 859; see also Paul Haven, Spanish MPs Pass Law Denouncing Franco Regime, The Guardian (Oct. 31, 2007), https://www.theguardian.com/world/2007/nov/01/spain.international2.
[17] Davis, supra note 4, at 859. According to Davis, “belated memory politics” encompasses official policies of truth and justice as well as societal attempts to interpret the past. Id.
[18] Haven, supra note 16; Ley 52/2007, supra note 3.
[19] Id.
[20] Ley 20/2022, supra note 3; Mark Nayler, In Spain, Can Truth Ever Bring Reconciliation?, Foreign Policy (Nov. 20, 2022, 5:59 AM), https://foreignpolicy.com/2022/11/20/spain-franco-mass-graves-truth-reconciliation/.
[21] Reuters, Spain's Democratic Memory Bill to Honour Dictatorship Victims, Reuters (July 20, 2023, 11:53 AM), https://www.reuters.com/world/europe/spains-democratic-memory-bill-honour-dictatorship-victims-2021-07-20/.
[22] Id.; Ley 20/2022, supra note 3.
[23] Sam Jones, Old Wounds Are Exposed as Spain Finally Brings Up the Bodies of Franco’s Victims, The Guardian, (Oct. 9, 2021, 12:15 PM), https://www.theguardian.com/world/2021/oct/09/spain-bodies-franco-victims-dictator-mass-graves; Ley 20/2022, de 19 de octubre, de Memoria Democrática.
[24] Ley 20/2022, supra note 3; Nayler, supra note 20.
[25] Id.
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