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Post Spanish Supreme Court and the Franco Ruling
Created by John Eipper on 07/15/19 6:55 PM

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Spanish Supreme Court and the Franco Ruling (Francisco Rodriguez Jimenez, Spain, 07/15/19 6:55 pm)

The following communiqué was issued by the Spanish Association of Contemporary History:


[My English translation]:

The Association of Contemporary History believes that, beyond the specific question of the exhumation of the dictator's remains, the Supreme Court's reasoning goes against the majority opinion among historians about Francisco Franco's tenure as Spain's head of state, placing its beginning on October 1, 1936. On that date in Spain there was only one head of state, the president of the Second Republic, Manuel Azaña. This is an indisputable fact.

To question this, as the Supreme Court does, implies legitimization in fact, a posteriori, of a coup d'état on July 18, 1936, which began a civil war, with hundreds of thousands of deaths, and a brutal repression that cost tens of thousands of others their lives.

Suspending the exhumation, especially with the aforementioned argumentation, constitutes an offense to the victims; to the depository of the national will, the Spanish Parliament, which approved the exhumation; to the democratic government of the nation, which ordered it; and to the collective civic and democratic conscience of Spain and the world.

But there is more. In a number of European countries that have had to face the legacies and traumas generated by antidemocratic dictatorships, such as Fascist Italy, Nazi Germany, and Vichy France, the question of how far historians go toward becoming "authorities" in the determining or conditioning of legal proceedings and government regulations is a matter of debate. All of this can be debatable. BUT WHAT HAS NOT COME UP IN ANY OF THESE COUNTRIES IS THE CONTRARY NOTION: THAT IT IS THE JUDICIAL POWER THAT DETERMINES THE "HISTORICAL TRUTH."

This is an unprecedented intrusion that the Spanish Supreme Court alone has resorted to. And under no circumstances should the possible implications of this fact be ignored. For instance:

1. It could affect the academic freedom of historians, forcing them at some point in the future to let their research findings be compromised by outside forces contrary to the rigors and ethics of their profession.

2. It makes Spain, its judiciary and, by extension, its democracy appear backward compared with the rest of Europe.

3. It opens the way to a judicialization of history, with consequences that are as unpredictable as they are disturbing.

For all these reasons, this Association considers it absolutely necessary that there be a complete and unambiguous rectification of the annotated decision of the Supreme Court.

Starting with the latest sentence...if not complete rectification of the whole order...it is important to specify that the imbroglio occurred basically because the Supreme Court wandered into the realm of historians, without properly checking what the Academy has already established as a fact: there was only one legal head of state in October 1, 1936, Manuel Azaña. That same day Franco was proclaimed likewise as head of state of the rebels, and therefore he was "head of state" of those territories under his control. How can the legal and the rebel aspirant of that status can be put on the same level? Isn't it important to distinguish between the threatened democratic regime and the proto-fascist group which strove to set up a dictatorship?

The general context is likewise mentioned in the AHC communiqué. Let's reflect on this. Hitler took power legally and then started to dismantle Germany's legal democratic order, using "legal" and illegal measures to weaken or literally destroy their democratic opponents. By the same token, Apartheid in South Africa was likewise legal--a rule to be obeyed by citizens. Right?

Following the Spanish Supreme Court case, could any German judge declare an order, describing Nazism as a "legal regime" without explaining the rest of the story, of what happened before and after 1933? Of course, someone could dare to say that, but I assume that many voices would immediately rise against that statement. The same would apply to those thinkers or judges who stated that Apartheid was legal, without properly explaining the reasons for arriving at such an outrageous "legal situation."

Isn't the historian's craft (Bloch) to provide well-detailed explanations, containing the ins and out of historical facts (most of the times with grey tones...rather than the binary white and/or black). This situation reminds me of a old Spanish proverb: "Zapatero a tus zapatos" (something like if you are a butcher you more probably would not dare to tell the shoemaker how he or she should work; or vice versa, usually the shoemaker would not pretend to be more knowledgeable about meat qualities than the butcher). In other words: it seems to me that in this specific Supreme Court decision, the judges wandered recklessly into the always complex arena of historical events. They did so by removing one of the most important factor of an accurate historical narratives, nuances. Were they biased by "Franco's legal order" established on October 1, 1936? A regime which purposely, and during almost 4 decades, strove to distort the events and demonize the Spanish Second Republic (barring all their problems and weaknesses, the most important democratic effort of Spain's modern era, until 1978).  Curiously enough, some pro-Franco authors have been lately doing something similar: demonizing the Spanish Second Republic, without explaining the extremely adverse context for this democratic venture, ignoring their advances and describing 1978 as the only democratic process in Spain's contemporary history. By doing so, the continuities (of course there were likewise many differences, as the world had also changed noticeably) and connections between 1931-36 and 1978 are neglected. A bridge broken, which tends to be substituted by a distorted equation: Franco was really the great "modernizer" and therefore he was the pivotal factor for the consolidation of democracy in Spain after his death. That said, without explaining the details of his 38 years of authoritarian, despotic rule, would be similar hyperbole as saying that "Hitler's regime or Apartheid were legal...according to their respective legal contexts."

JE comments:  Great to hear from Francisco Rodríguez Jiménez, who is soon to come to Washington DC for a visiting appointment at American University.  The Spanish Supreme Court decision hinges on a central question:  is the historical truth subject to judicial review?  I would argue that this is what courts often do, in matters of judicial precedent, contracts, and the like.  It is necessary to determine "what happened" in order to apply the law.

Is the Academy of Contemporary History's protest based on the Supreme Court encroaching on its turf, or that the judiciary made the wrong judgment?

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  • Spain's Supreme Court and the Franco Ruling (José Ignacio Soler, Venezuela 07/17/19 6:06 AM)
    A few weeks ago, in June, there was a pointless controversy, which generated some exaggerated reactions, regarding Franco's status as Chief of State in 1938, before the end of the Civil War in 1939, as claimed by the Spanish Supreme court in a judgment.

    In this controversy some illustrious politicians and Spanish government officials, as well as some WAIS colleagues, expressed their indignation, describing Spain's judicial system as infamous, ridiculous, and insulting.

    Yet there is an ironic and unexpected twist in the fact that the Spanish Abogacía del Estado--State Attorney--in a lawsuit for the ownership of a property, a residence of the Franco family, stated recently that "since 1938--before the end of the Civil War--it was used by Franco as Chief of the State." This is another recognition, this time by the Socialist government itself.

    It seems that historical facts overlap and outweigh all ideological prejudices.

    JE comments: Isn't it the other way around, that ideology tends to outweigh the historical facts?  One related example:  Trump has accepted the reality of climate change--for his Irish golf course:


    I'm still unclear on why "predating" Franco's rule to 1938 has a connection to the exhumation controversy.  Can someone explain?

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    • Franco, Maduro, and the "Two Heads of State" Conundrum (Carmen Negrin, France 08/13/19 5:50 AM)
      The fact that certain people consider that the Spanish Civil War started in 1933 and not in 1936, is comparable to the thesis that Franco became head of state in 1936 and not on 1 April 1939 or even on 14 December 1955 when the UN finally gave in. The date could possibly be postponed until Franco's death, when the legal government of the Spanish Republic decided to end. One could also say that there were two heads of state, one legal and the other not, and probably there could be arguments about which one is the legal one.

      It all depends on who or what you want to believe.

      The French Third Republic recognized Franco's government the minute Azaña resigned, at the end of February 1939, as though the government disappeared with him.  The UK did likewise; however later they refused to recognize him as a UN Member State arguing that the government was illegal because it had been put in place thanks to Nazi-Fascist forces.

      One can also consider that although there were more than 2000 people killed in the Canary Islands, and there was no war there, because thanks to the assassination of Balmes, the war never really got started, there was only a "resistance" or according to others a "guerrilla."

      As mentioned on some other occasion, the UK in particular had been trying since almost the beginning of the civil war and in particular when Franco had occupied more than half the country, to find a legal argument to recognize his leadership. But they themselves regretted having to admit that there was a difference between de jure and de facto law, and thus they lamented in writing that they were not yet able to recognize him officially when he so requested during the war.

      I suppose that, if you were in an occupied zone and governed by the occupying rebel forces, you would tend to say that they were de facto, if not officially, governing.  Thus, whether you liked him or not, the head of (the) state would be the one leading, at least where you are living, specially if the occupation goes on for almost 40 years.

      This is probably the criteria retained in the case of the estate mentioned by José Ignacio Soler (July 17th), although of course, there are also presumably other legal arguments to the choice of the date. It is obviously not the criteria retained by the judge who has in fact also worked as a lawyer for the Franco Foundation and for the family. One could wonder why he was picked, but that is another matter.

      The debate on the choice of the date is far from being silly. It shows the need to clarify certain historical facts. It also clearly demonstrates first the ignorance or the will to ignore these facts, and second it says a lot about a person's understanding of these historical events.

      Franco himself talked about the glorious victory day of April 1st. If he was already in charge of the state before that, what was he fighting against? Windmills? "Rebels" as he called them once he rewrote history? The so-called "rebels" happened to be the only legal ones in the conflict.

      I guess historians still have a lot of work ahead of them and the necessary "effort of memory," because it is an "effort," and still has a long way to go in Spain, especially now with Vox being brought into the mainstream.

      I suppose that in a few years, depending on who wins the supposedly on-going negotiations in Venezuela, one will say that Maduro was President until a certain date or Guaidó became President on the same date.

      JE comments:  I'm trying to wrap my head around the Spain-Venezuela analogy.  If we accept the notion that Franco was a usurper who became "legitimate" through violence alone, then who is the Franco equivalent in Venezuela?  By many accounts Guaidó has a stronger legal standing than Maduro.

      Ultimately, as Carmen Negrín suggests here, it will be a question of who prevails in Venezuela.  As the Chileans say, por la razón o la fuerza (by reason, or by force).

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  • on Historical Revisionism (Eugenio Battaglia, Italy 07/18/19 4:27 AM)
    In his detailed post Francisco Rodríguez Jiménez (15 July) reported on the Spanish Association of Contemporary History's claim that the Supreme Court cannot determine the "historical truth."

    Outstanding; I subscribe to this view.

    However the AHC probably lives in a dream world. Almost all over Europe the judicial powers determine the "historical truth," and even jail those who do not conform their research and books to the "politically correct" official history of the winners.

    Russian President Medvedev in June 2008 during a meeting Russia-EU at Khansky-Massisk stated: "Revisionism is not permissible."

    On the contrary, progress and the real truth in historical knowledge comes only though continuous research and revisionism, as any newly discovered document may completely change the understanding of a fact.

    There is an interesting article, 4 July 2018, by Murray N. Rothbard of the Mises Institute: "The Case for Revisionism (and Against a priori History)."

    JE comments: There is revisionism and there is Revisionism.  The capital-R latter version tends to be used in the pejorative sense, particularly as shorthand for Holocaust denial.  There is also a strong association between Revisionism and conspiracy theory, such as Roosevelt "allowing" Pearl Harbor or 9/11 as a CIA job.

    Eugenio, does revisionismo have the same negative connotations in Italy? 

    But what is historical scholarship other than an ongoing process of revision?

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    • Historical Revisionism...and a Medvedev Quote (Boris Volodarsky, Austria 07/20/19 4:05 AM)

      I feel obliged to briefly comment on Eugenio Battaglia's post of 18 July.

      The Russia-EU summit of June 2008 took place in the town called Khanty-Mansiysk, a freshly refurbished settlement in Western Siberia with an extreme climate. Temperatures jump from -50°C to +35°C. Usually, it is rather cold there all the year round. I do not know why it was decided to have a high-level meeting in such a place, but at the end of June 2008 European mandarins like José Manuel Barroso and Javier Solana gathered there to discuss business with the new president of Russia, Dmitry Medvedev.

      As a matter of fact, Medvedev never stated that "Revisionism is not permissible." His speech was rather positive and constructive, but he also mentioned that "We consider the soft line taken towards attempts to make heroes of Nazi collaborators and revise pages in Europe's twentieth-century history unacceptable. We discussed this and met with full understanding on these issues."

      Speaking at the joint press conference following the summit, Barroso said: "So, as President Medvedev quite rightly pointed out, our meeting was very constructive. In a friendly, open atmosphere, we discussed the most sensitive issues, including the desire of some to rewrite history, including the history of Nazism in Europe. Let me say clearly: the EU is opposed to totalitarianism in any form. Thus the position of the European Union, of countries that are members of the European Union, is this: we oppose totalitarianism in all its forms, including Soviet totalitarianism. We are not directing these remarks at Russia. We call for democracy, and we recognize the contribution made by Russia, at that time--by the Soviet Union, in the fight against Nazism. And we very much appreciate this contribution."

      Concerning the Spanish Supreme Court, any Supreme Court, it has never been its remit to determine a "historical truth." A Supreme Court is the final court of appeal for civil and criminal cases. According to the Registry of the Supreme Court of the United Kingdom, for example, it hears cases of the greatest public or constitutional importance affecting the whole population. I generally doubt that any authority can "determine the historical truth." (As the epigraph to my new book, I use the words of Sir Paul Preston from one of his WAIS posts: There is no such thing as the final judgement of history.)

      JE comments:  Enough time has gone by to form a judgment on Medvedev's legacy.  Boris, can you give us a sense of how his presidency is remembered among the Russian people?  Is he considered a milquetoast placeholder for Putin, or is there nostalgia for that brief period when Putin was not the Supreme Leader?

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      • Dmitry Medvedev, Corruption, and Russian Public Opinion (Boris Volodarsky, Austria 07/21/19 3:27 PM)
        As usual, JE asked a very good question, "Is [Dmitry Medvedev, Russian Prime Minister and former President] considered a milquetoast placeholder for Putin, or is there nostalgia for that brief period when Putin was not the Supreme Leader?"

        I believe Cameron Sawyer would be the right person to answer, but to the best of my knowledge some percentage of the Russian population and even a few representatives of the elite thought, when Putin appointed Medvedev to replace him for one term, that perhaps the new man could do something. Not too many people thought so, but still.

        I remember there were a lot of discussions in the international media whether Medvedev was a temporary replacement and, as John has put it, a milquetoast placeholder for Putin or a statesman in his own right, and I even took part in a rather long Al-Jazeera program at the end of August 2010 entitled "A difficult summer for Putin" (see WAIS post of 9 September 2010) with Riz Khan and the Russian-American journalist Maria Lipman. Masha and I, we both predicted that Putin would re-take the presidency in the next election cycle, which indeed happened.

        It seems that since Putin returned to the Kremlin, Medvedev, still a member of the tight circle of trusted personalities around the president (to my mind, there are only two really close to Putin--Victor Zolotov, his longtime personal bodyguard, and Medvedev), as a public figure Medvedev almost disappeared. The situation dramatically worsened with the public screening of the documentary on YouTube known in English as "He is not Dimon to you!"


        It was by Alexei Navalny's Anti-Corruption Foundation in March 2017. "Dimon" is a colloquial form of the name Dmitry.

        According to the authors, Medvedev embezzled something like $1.2 billion US dollars (that is, it is claimed he has them in funds and assets) and owns villas, various real estate and other luxury properties in different parts of the world including Italy and secret bank accounts in overseas safe havens. Wikipedia notes that an April 2017 poll found that 45% of surveyed Russians support the resignation of Medvedev while 33% of respondents were against. Newsweek reported that "An opinion poll by the Moscow-based Levada Center indicated that 67 percent held Putin personally responsible for high-level corruption."

        I do not think Medvedev really "embezzled" anything. Like officially the second person after the tsar and a satellite or a courtier very "close to the body" of the ruler, as they say in Russia, Medvedev believes that some part of the kingdom belongs to him thanks to his position together with some exclusive rights. It is like if a US president wants a mistress, he has a mistress, if he wants a tower in New York, he has a tower. If a sheikh wants ten wives, he has them, and if he wants ten palaces, he has them too. So what's wrong if a Russian premier has it all? In Tuscany, Dubai and in the Crimea--towers, palaces, yachts and vineyards. This is the mentality of the Russian elite formed in the past 19 years.

        JE comments:  Boris Volodarsky's last point is chilling.  If l'Etat c'est moi, is there really such a thing as stealing?

        Click below for Boris's 2010 WAIS post, with links to his appearance on Al-Jazeera:



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