Shifting legal dogma: From Republicanism to Fascist Ideology under the Early Franquismo
Drawing on broad historical insights, this paper accounts for the development of legal doctrine under Franco's regime in Spain; special emphasis is placed on the conformism of liberal intellectual scholars, which helped justify the formal legality of authoritarian rule.
ARENA Working Paper 20/2002 (html)
Agustín José Menéndez
This paper deals with the legal and political theory of franquismo. At the end of the Spanish Civil War, a great number of scholars either left for exile or were silenced. However, some law professors exchanged constitutional patriotism for ideological propaganda and became ideologues of Franco’s regime. There are good reasons to consider that for a period, this new political system was moving towards fascism, and that the companion franquista political and legal theory aimed at being the outlook of a fascist regime. It is also argued that the most outstanding members of its intelligentsia were liberal republicans who turned fascists in relatively short notice, among them Francisco Javier Conde and Luis Legaz y Lacambra. Without opening the difficult chapter of personal responsibilities, it is observed that this sudden and relatively brief fascistisation let open the possibility of a later reconstruction of their work into a more classic and convenient pattern. Their personal tolerant attitude and their occasional double meanings helped this. At any rate, it is pointed that a good deal of the sources of the legal theory of franquismo have to be traced back to Juan Donoso Cortés, the arch-philosopher of reaction in Spain. However, his influence was mediated by Carl Schmitt. It was the German constitutionalist who rediscovered Donoso, and also who influenced the reading and interpretation of his works.
A later version of this article was published in C. Joerges and N. Singh Ghaleigh (eds) (2003) Darker Legacies of Law in Europe - The Shadow of National Socialism and Fascism over Europe and its Legal Traditions, Oxford and Portland, Oregon: Hart Publishing.