Legislating Memory: Democratization and Transitional Justice in Spain

While the world witnessed the emergence of around thirty new democracies in the final decades of the twentieth century, Spain’s transition from a dictatorship in the 1970s has been positioned as a paradigm for other countries under authoritarian regimes. The nation’s success story not only lies within the restoration of standard political liberties and the rule of law following General Francisco Franco’s death in 1975, but also the new system’s ability to unite multiple ethno-territorial identities within a single political framework. Despite the overwhelming positive perception of Spain’s transition to democracy, the nation has received considerable criticism for choosing to move forward with democracy while simultaneously looking away from its history with the pacto del olvido — the pact of forgetting. This choice to turn a blind eye to the violence of its Civil War and repression of the opposition under Franco generated backlash about Spain’s failure to address historical injustices, and whether that choice calls the success of Spain’s transition as a “full” transition to democracy into question. In the following decades, scholars and human rights activists have called for “transitional justice” — the missing piece to Spain’s success story and a new wave of legislation rooted in remembering.

Spain’s transition to democracy calls for unique praise for various reasons: “the authoritarian regime had not been forced to capitulate through military defeat or near defeat (as in Portugal or Greece) or deep economic crisis (as in the former Soviet Union); and because of the fact that the Spanish transformation was a largely nationally owned, nationally led change that was not the result of external support or pressure (as in various parts of Latin America).” Its democratization utilized the same institutional mechanisms that supported Franco’s regime and brought Spain to its best years since its Golden Age in the 16th and 17th centuries. In the period between then from 1812-1975, Spain endured six different constitutions, seven military coups, four royal abdications, two dictatorships, and four civil wars. The adoption of the democratic Constitution in 1978 marked the end of the 1939-1975 dictatorship of Franco, the victor of the final civil war. More than forty years later, Spain emerged prosperous in nearly all dimensions: economically, with the world’s second-largest tourism industry in terms of visitors; politically, with a high-ranking established democracy; and socially, with the greatly improved status of women. Another feat of Spain’s transition was its creation and institutional accommodation of seventeen autonomous communities within its singular political framework, which still allows for regional home rule that embraces the existence of different languages, political traditions, and identities throughout Spain. The nation overcame significant difficulties, particularly in its economy, while transitioning to democracy, but still faces challenges today with the high cost of living and unemployment rates exacerbated by the 2008 recession and COVID-19 pandemic. Nonetheless, Spain reclaimed its place on the international stage and paved a path of lessons to be learned for emerging democracies.

The most significant criticism of Spain's transition to democracy is the improper rehabilitation of victims of Francoist repression, which questions whether or not Spain has completed its transition in entirety. Barriers to justice for the victims of the regime were embedded within law. The notorious example, which is yet to be repealed despite calls from the United Nations in 2013, is the 1977 Amnesty Law. While this law enabled most of the political compromises found in the 1978 Constitution, it also helped conceal the memory of the “Spanish Holocaust”: the political reprisals undertaken by Franco against the opposition at the end of the civil war, including thousands of executions and the creation of concentration and labor camps. The 1977 law offered amnesty to the old regime, justifying the lack of investigation or prosecution of Francoist human rights violations. In this period of forgetting, various civil society organizations, like the Asociación para la Recuperación de la Memoria Histórica, and smaller-scale efforts by regional governments worked to help victims of Franco’s regime. However, Congress did not condemn the Franco dictatorship until 2002, and it took until 2007 to introduce legislation to move forward with justice. 

The Historical Memory Law (Act 52/2007) was a first attempt to address this dark history, aiming to offer reparations to the victims of the civil war and dictatorship. Measures to preserve the memory of the atrocities endured by victims included renaming streets currently given to members of the Franco regime and funding the exhumation of mass graves by non-governmental organizations. Even with these first steps falling short of comprehensive justice, the act was never fully realized – fueling more stagnation in the way forward. Shortly after the act was passed, the Partido Popular, Spain’s conservative party, repealed it for a lack of funding once it came into power. However, parliament eventually built upon this legislation’s objectives and passed the Democratic Memory Law in 2022. This fulfilled many of the recommendations from the United Nations, including the creation of a census and national DNA bank to help identify the remains of tens of thousands of people in unmarked graves. The new law also created a public prosecutor’s office for “human rights and democratic memory” to investigate past violations and recognize those who have worked to defend democratic memory. Despite the progress Spain made in implementing this new law, its central value of fostering democratic memory still cannot be realized as it did not abolish the 1977 Amnesty Law that protects perpetrators from prosecution. The continued existence of the 1977 Amnesty Law directly contradicts the objectives of the new offices created by the 2022 Democratic Memory Law, which calls into question whether democratic memory can be enforced to serve justice or if it is a merely symbolic phrase.

Spain’s delay in dealing with the ghosts of its past and providing justice to the victims of human rights violations has caused many critics to label Spain as a “low-intensity democracy.” However, Spain is not alone in only making rehabilitative efforts retrospectively — comparisons can be drawn to other established democracies who are still creating new efforts to open their past to scrutiny in recent years. Examples in Europe include Norway (2018), Finland (2019) and Sweden (2020), which have established commissions to investigate injustices against Indigenous peoples. To deepen its democracy and address the criticism questioning its full transition, Spain must continue to stay on this trajectory of embedding its memory into law and take greater action to reconcile its past injustices. This is integral to fortifying what Spain's democratic constitution outlines -- preventing a repetition of history and protecting living memory -- in order to fuel a more just future. New attempts like the Democratic Memory Law of 2022 can not adequately achieve their goals and serve justice to victims while coexisting with blanket amnesty laws like that of 1977. Continued coexistence only signals symbolic legislative memory rather than laws dedicated to dismantling legislation that obstructs the memory of victims. With a Constitution designed to embrace the multiplicity of its various regional communities, Spain must fortify this initiative with more concrete legal measures to provide justice to those oppressed by Franco. Beyond rectifying its past, Spain would deepen its position as a model for future transitions to democracy by emphasizing the importance of reconciling crimes of the old regime in order to have a strong new democratic system with full protections for all its people.

Ashley Ganesh is a junior at Brown University, concentrating in Economics and International and Public Affairs. She is a staff writer for the Brown University Undergraduate Law Review and can be contacted at ashley_ganesh@brown.edu.

Veronica Dickstein is a sophomore at Brown University studying International and Public Affairs. She is a staff editor for the Brown Undergraduate Law Review and can be contacted at veronica_dickstein@brown.edu.