Abstract

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 was 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 has to be traced back to Juan Donoso Cort�s, 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.

Shifting legal dogma:

From Republicanism to Fascist Ideology under the Early Franquismo

Agust�n Jos� Men�ndez [1]

�When legality is enough to save society, legality; when it is not enough, dictatorship� [2]

�Our mission was not to challenge the new ways of thinking, as they were the only ones up to the task of protecting humankind from the communist menace, but to treat them carefully and sympathetically, and reorient them to the traditional and Christian ways� [3]

1. Introduction

On April 14^th, 1931, the Spanish people took the streets. Local elections had been transformed into a plebiscite against the monarchy. The candidates of the Republican-Socialist coalition had obtained a landslide victory in the large cities. The King fled the country as a liberal and democratic Republic was proclaimed. As the mild spring day came to an end, the strains of the traditional Spanish Republican anthem (the Himno de Riego) and those of the Marseillaise mingled in the sunset. [4] At a time when Europe was becoming a dark valley of dictatorships and authoritarian governments, this rather unexpected event raised the hopes of European democrats. Only two years before, Spain was an early prey of the dictatorial malaise that shook the old continent. General Primo de Rivera had seized power after a relatively easy golpe in 1923. Quickly, he had embarked upon the institutionalisation of a new authoritarian (and corporatist) regime. However, the world economic crisis revealed the weakness of the so-called dictablanda (�the soft dictatorship�) and precipitated its fall and that of the parliamentary monarch.

By early 1936, hope had given way to tension. The enthusiastic espousal of the Republic had vanished. The hope elicited by the first Republican-Socialist cabinets was not enough to bring forth broad social support to the 1931 Constitution. Moreover, the limited social reforms of the bienio reformador (�the two years of reform�) were almost completely reversed from late 1933 by a series of conservative executives. The access to government of some representatives of an openly corporatist right-wing party in October 1934 was interpreted as a first step towards a Dolfuss� style involution. It unleashed a massive protest. The working-class region of Asturias underwent a full-scale revolution. The army, led by a young official called Franco, quickly crushed the workers. The revolution was defeated, but also the hopes of the more conservative forces of an easy transformation of the Republic. When a broad centre-left coalition obtained a short but decisive victory in the elections of February 1936, the more reactionary elements of the right saw their nightmares come true and ran into the arms of the army and the emergent fascist militias. It was not long before a golpe de estado shattered the Republican order.

In this decisive and turbulent interlude of five years, intellectual life had been much enriched in the country. The coming of the Republic was also the time of a new blossoming of Spanish cultural life. [5] The Republican-Socialist coalition had promoted the arts and letters and had set education as a policy priority. Quite unsurprisingly, most of the intellectuals, whether university professors or modest teachers, were or became committed Republicans.

It was in such a context that a new generation of legal scholars came through. They were truly European-minded jurists. They had been able to study abroad and inject into Spanish academia �European� themes and debates. One could expect that they would tend to stand in support of the Republican order. But as the war started, some chose to become active ideologues of the new regime. The price was to shift their legal dogmatics from constitutional republicanism to semi-fascist revolutionary propaganda. The reward was a chance to shape the rather vague and undefined political and legal philosophy of the victorious rebels.

The purpose of this paper is to explore three basic points. Firstly, it is questioned whether we can seriously speak of a Spanish fascist legal theory. It is here argued that legal scholarship was in the process of being fascistised between 1936 and 1945 [section 2]. This process was only halted by the outcome of the Second World War. Secondly, who were the most articulated �legal philosophers� of the regime? (Or, who were the Fascists?). Paradoxically but quite predictably, a good deal of the official intellectuals of the new regime happened to be former liberal Republicans who turned into radical Franquistas at short notice [section 3]. The two authors that are considered in some detail, Conde and Legaz, had endorsed the liberal constitution of 1931, but were quite ready to become the intelligentsia of the new regime. Thirdly, which were the materials used in constructing a legal and state theory for the new regime? It is argued that they were rather heterogeneous. But one might claim that a key reference is the work of the Spanish counterrevolutionary Juan Donoso Cort�s [section 4]. His work, occasionally quoted, but not much read, was rediscovered by Carl Schmitt in the 1920s. Through him, Donoso became a central reference point, quoted alongside Schmitt himself.

2. Destination Fascism

2.1. An Authoritarian or a Fascist Regime?

If political commentators and intellectuals seemed to agree on something during the turbulent and divisive years of the Republic, it was on the improbability of Spain turning Fascist. Committed Republicans feared a reactionary involution on an authoritarian pattern; a new dictablanda of the style of Primo de Rivera�s regime. Right-wing political forces rallied around the �accidentalists�, conservative groupings that gave tepid support to the 1931 Constitution and favoured a transition to corporativism, but through legal means (a sort of improved version of the Primo dictatorship). As late as October 1937, Manuel Aza�a reaffirmed his belief in the nature of the regime that would come out of an eventual rebel victory:

�There are or might be many Fascists in Spain. But there would never be a Fascist regime. If the rebel movement against the Republic won, we would see the establishment of a military and ecclesiastic dictatorship of the traditional kind�. [6]

However, things turned out to be rather different. Aza�a might have proved right if the golpe had led to quick success, if traditional conservative parties would have kept on being major players and if the Fascist and Nazi support to rebels had been less decisive. But these three factors led to a rather different outcome.

            The golpe resulted neither in the seizure of power by the rebels nor in their defeat at the hands of the legitimate Republican government. The shape of the new regime was, in a way, determined as the war was being fought.

            The sheer length of the war reinforced the power basis of the more radical elements. [7] The anti-Republican coalition was rather heterogeneous, but participants in the golpe had agreed to set aside the question of the shape of the ensuing regime until their actual coming to power. [8] The need of fighting a long war increased the weight that the army carried in the coalition. This ensured a radicalisation of the goals of the rebels. On the one hand, the leading army officials tended to project to the civil war their previous experiences of colonial war in Morocco. It might not be exaggerated to argue that a good deal of the terrible repression can be explained by the characterisation of Republicans as the aboriginal people to be conquered and then exploited or suppressed. [9] On the other hand, some sectors of the military were receptive to German and Italian fascist ideologies. The crucial material assistance offered by Mussolini and Hitler, and the logistical support to be expected from Salazar�s Portugal, only increased the predisposition to consider such regimes as role models. [10]

The rapid expansion of Falange, and its increasingly secure hold on power up to 1942, is to be partially explained by the external setting, in particular the crucial aid of Germany and Italy during the war, and their victories in the early years of the Second World War. However, it is also to be accounted for by the fact that it constituted a safe harbour for those who were shifting sides. This is to be traced back to the superficiality of the Falange�s baroque doctrine, its original willingness to become a broad-based movement, to overcome the class-based and elitist character of monarchical groups. [11]

Moreover, Franco�s eventual leadership was determinant, although rather coincidental. It was only the death of more likely candidates that eased his way to power. General Sanjurjo, who had already attempted a putsch in 1932, happened to die when flying from exile to take the lead in the rebellion. Jos� Antonio Primo de Rivera, the leader of Falange, was arrested by the Republicans and subsequently executed. Franco seized the opportunity and managed to get proclaimed Head of State by the military junta at the end of September 1936. From then onwards, he consolidated his position by gathering all military and political power in his hands. On April 1, 1937 the unification decree merged the main political factions of the rebel camp into a single party. This strengthened Franco�s position signalled the clean break of the new regime with the liberal, parliamentarian model. The ensuing military success in the Northern Front was followed by an initial set of institutional decisions apparently inspired by the Italian Fascist State. On January 1938, Franco formed his first regular Cabinet. The army and the more fascistised members of Falange were allocated the most relevant posts.

            The war had radicalised the stakes. Whether this is sufficient to classify the resulting regime as fascist or totalitarian is still an open question. Indeed, historians, political scientists and other scholars have devoted considerable time and effort to provide answers to such question. [12] In my view, such characterisation is rather tricky. The right answer depends on the purpose of the question and on the period on which we focus. When assessed in a comparative setting (that is, on the background of a family definition of fascism), the early franquismo qualifies as fascist.

            Firstly, the authoritarian characterisation of franquismo tends to be based on an excessively narrow definition of fascism. A comparative study of the phenomenon favours a more encompassing �family� definition. This should be narrow enough to allow us to make distinctions, but sufficiently wide as to encompass the different political regimes that presented a sufficient degree of resemblance. [13] Such an approach allows us to cut through the rhetorical claim to national originality which is characteristic of all pro-fascist regimes.

Secondly, any proper answer needs to be based on the distinction of several periods of Franco�s regime. The sheer length and transformation of the internal and external circumstances makes it necessary to differentiate between several periods and inclinations of the dictatorship. [14] In that respect, it seems beyond doubt that the early or first franquismo, which might be said to have extended from 1936 to 1945, shared a considerable number of the substantive goals, political phobias and symbols of fascist regimes. [15] If one considers the shape of its institutions, the brutality of the repression, and the intense control over economic activities, one might find sufficient resemblance between Franco�s Spain and Mussolini�s Italy or Hitler�s Germany. Franco retained an almost absolute power, which was limited only by the will of the Caudillo himself. From May 1937, Falange (renamed �Falange Espa�ola Tradicionalista y de las JONS�) became the sole-party and sole-trade union. Moreover, the brutal repression that characterised the actions of the rebels from the very beginning of the war continued after March 1939. The actual number of victims would never be determined, as the regime was quite active in suppressing a good deal of incriminatory evidence. [16] However, the figure has been recently estimated as high as at four hundred thousand victims, either executed or imprisoned under inhumane circumstances, which condemned prisoners to death. [17] One should keep in mind that a considerable number of Republicans had already died in the war or left for exile.  Moreover, and despite the rhetorical endorsement of private property, the autarchic economic policy and the transformation of labour relations under the fascist model (the sindicato vertical) gave government an enormous capacity to influence the economy. This was actually used to favour partisans and punish enemies. Finally, the jurisdiction of ordinary courts was severely curtailed by �exceptional jurisdictions� for the purpose of �purging� the administration and punishing political enemies, in physical and material terms. [18]

2.2. Fascist Legal Dogmatics?

            Scepticism towards a fascist involution in Spain was partially grounded on the almost complete lack of a Fascist intelligentsia before the war. Indeed, fascism did not have a warm reception in Spain. This might be explained by reference to the socio-economic circumstances of the country or its political history. However, one should also add that the well-established pedigree of Spanish reactionary thinking might have �crowded out� fascist ideas.

            A look at the intellectual panorama of the early 1930s does not reveal the presence of many Fascists. Liberal Republicans and traditional conservatives dominated the scene.

On the one hand, Liberal Republican thinking blossomed during the late 1920s and 1930s. The foundations of this second golden age of Spanish culture were laid by the Krausist authors of the late nineteenth century. Later on, the opening of Spanish scholars to foreign ideas, through personal stays in foreign Universities and the lecturing of international figures in Spain, had the beneficial effect of europeanising Spanish academia. The Junta de Ampliaci�n de Estudios played a major role by means of financing the stays abroad of a good number of scholars. [19] This explains the reception and engagement with Continental legal philosophy and scholarship, especially with the German tradition.

            On the other hand, the representatives of conservative and reactionary thinking were too attached to neo-scholastic thinking as to provide a good reception to more modern reactionary thinking. Reactionary thinking had an established pedigree in Spain. The liberal flavour of the majority of the first Assembl�e Constituant, las Cortes de C�diz (1808-1814), was counterbalanced by an emergent reactionary, anti-Liberal thought. [20] Partially influenced by the main European figures (e.g. De Maistre or De Bonald) and somewhat inspired by a rather fictive �Spanish� philosophical tradition, these authors rejected Liberalism and advocated a return to a mythic, pre-modern and religious past. From the 1830s, this philosophy was identified with the carlismo, a sketchy set of political dogmas contingently associated with the dynastic dispute over the Spanish crown. The carlismo managed to elicit sufficient support to provoke three civil wars in the course of the nineteenth century, and to remain a major political force in certain parts of Spain up to the 1936 civil war. [21]

Among the philosophers of reaction, one can argue that Jos� Donoso Cort�s offered the more systematic and modern work. [22] However, his writings had only an indirect influence on Spanish reactionaries. His ideas were popularised by French Catholic propagandists and later on by German philosophers. As we will see, Carl Schmitt�s reconstruction of his thought proved determinant of the renewed interest on this author in Spain. [23] The intellectual discourse of reactionary forces was probably more directly influenced by authors such as Balmes, [24] V�zquez de Mella [25] or Ramiro de Maeztu. [26] Quite paradoxically, a major reference of Primo�s dictatorship was Joaqu�n Costa, [27] who was also cheered by Liberals.

            It is only the increasing tension which led to the war and the later �fascistisation� of the regime that explains the rapid transformation of the intellectual panorama. This is reflected in the origins of the intellectuals of franquismo, who were of two main types. [28] On the one hand, were the conservative philosophers, who aimed at shaping and characterising the new regime in the mould of the traditional reactionary and authoritarian model (such as Victor Pradera). [29] On the other hand, were those who endorsed the task of shaping something new, either out of their pre-existing Fascist beliefs (such as S�nchez Mazas or Gim�nez Caballero), or out of a sudden radicalisation (such as Legaz and Conde). As we will see (section III), it was thus not surprising that the newcomers were more prone to a process of rapid induction into fascism.

            This radical turn was fostered from above. On the one hand, academia was among the professions where the impact of purges was highest. The few Republicans who did not leave for exile [30] were silence and repressed. [31] On the other hand, the new regime gave preferential attention to the development of its legal and political theory. In September 1939, a centre of political studies, the Instituto de Estudios Pol�ticos, was founded in the vacant premises of the monarchical Senate. [32] This institution was conceived as a sort of think tank of Falange. In its first five years, under the direction of Alfonso Garc�a Valdecasas, [33] its scholars articulated the most sustained attempt at producing a legal scholarship imbued by the new principles of the regime. Valdecasas wrote in the first issue of the Revista de Estudios Pol�ticos (the main organ of the Instituto) that the aim of the new publication was the �development of a scientific method based on the radical truth of the single party�. [34]

The scholars of the Instituto were active on several fronts. On the one hand, they played a major advisory role in the drafting of several of the �fundamental laws� of the regime. Their influence was considerable in the Ley de Cortes [35]   (1942), but they also had a say in the Fuero de los Espa�oles (1945) [36] and the Ley de Principios del Movimiento (1956). [37] Its affiliated professors were also behind the basic administrative and commercial laws in the 1940s. On the other hand, the Revista de Estudios Pol�ticos published a good number of articles on the radical transformation of Spanish law [38] and also essays on totalitarian legal scholarship. [39] Moreover, two of the best-read and articulated philosophers of the regime, Francisco Javier Conde (Espejo del Caudillaje, 1941 and Representaci�n pol�tica y r�gimen espa�ol, 1945) and Luis Legaz y Lacambra  (Introducci�n al Estado Nacional-Sindicalista, 1939 and Cuatro Estudios sobre Sindicalismo Vertical, 1939), were related to the works of the Instituto and eventually became its directors. [40]

As the more pro-fascist elements of Falange saw their influence diminished, the Instituto also lost ground. In 1942, Serrano S��er, for a period Minister of Foreign Affairs and openly pro-Nazi, fell in disgrace. This suspended the Instituto�s influence until the end of the decade, when Conde came to its directorship. This change in fortune might have been reflected in the creation of a competitor for the Instituto, the new Faculty of Political Science at the University of Madrid in 1943.

            This process of �fascistisation� was slowed down and eventually halted as the likely outcome of the Second World War fell into doubt. Defascistisation was slow and painful, [41] requiring a search for alternative theoretical foundations for the new regime. The theoretical pedigree, once based in its affinities with Nazi Germany and Fascist Italy,) would be now established by reference to corporatist and anti-Communist doctrine. [42] The committed Catholicism of Franco�s regime would be affirmed, with a view of avoiding any association with the worst war crimes of the Nazis and Fascists. The revival of corporatism was reflected in the Fuero de los Espa�oles, a charter containing the rights and duties of Spaniards, not by chance carried into law in 1945.

3. Who were the Fascists? The Radicalisation of Modernisers

            In the previous section, we singled out Legaz y Lacambra and Conde as two of the most articulated and well-read thinkers of the franquista intelligentsia. It is rather interesting to observe that neither of them were archconservatives- on the contrary, they were among the most promising members of the young Republican academia. Although both had a Catholic background, they seem to have firmly endorsed the Constitution of 1931. [43] They can both be said to have developed a constitutional patriotism, reflected in Legaz�s seminal El Estado de Derecho en la actualidad and Conde�s socialist militancy. Both had been able to enjoy the benefits of the Republican cosmopolitan approach, through stays in Germany financed by the Junta de Ampliaci�n de Estudios. However, in the period between 1933 and the beginning of the war, their ideas shifted dramatically, and they led the elaboration of a legal and political theory of franquismo- the so-called nacional-sindicalismo.

            Luis Legaz y Lacambra [44] came from an Aragonese Catholic milieu. He took his law degree at the University of Zaragoza. A prolific writer, he had time to complete several essays on �progressive� Catholic journals whilst still an undergraduate. He moved to Madrid in order to complete his Ph.D. He shifted to more liberal and secular positions as a result of his prolonged stays in Germany, where he made the acquaintance of notables such as Hans Kelsen or Hermann Heller. With the coming of the Republic, he became quite politically active through his membership of right wing but openly Republican parties and groupings, which took positions different from that of the CEDA. In 1933 he published a lengthy article (El Estado de Derecho en la Actualidad, The Rechsstaat now) [45] , which synthesised his outspoken position in favour of a Liberal Republic and his fierce criticism of Bolshevism and Fascism. In November 1933, he stood as a candidate in the general elections for Derecha Liberal Republicana (Liberal Republican Right, led by President Alcal�-Zamora and Miguel Maura), but was defeated, as the moderate right-wing party was sidelined by the CEDA. [46] Thereafter he seems to have focused on his academic career, and by 1935 he became professor at La Laguna. He stayed there only briefly, as one year later he obtained a position at Santiago de Compostela. When the war started, he appears to have been in that city.

Legaz sided with the rebels almost immediately. [47] His was the zeal of a convert. [48] He reported late in his life that he had become a local leader of Falange in the first days of the war. Later on, he was transferred to Santander, a stronghold of the rebels, where he took a prominent position in the Ministry of Labour. Before the end of the war, he had completed a new version of his El Estado de Derecho en la actualidad, in which he repudiated the first, �Republican� edition [49] . He published it together with other essays that aimed at providing the groundwork of franquista legal and political theory. [50]

Legaz was a rather more complex figure. On the one hand, he was highly honoured by the regime. He became the rector of the Universidad de Santiago de Compostela in 1942, a position he will enjoy until he obtained a chair in Madrid in 1960. He was member of the Cortes and eventually became director of the Instituto de Estudios Pol�ticos between 1970 and 1974. On the other hand, he acquired a certain reputation as a relatively open professor amidst the Franquista academia. He even cultivated his friendship with the Spanish exilees (and also with Hans Kelsen). Among his wide publiscations, his Filosof�a del Derecho was well received- and quickly translated into German, a rare achievement for a Spanish monograph. [51] When Franco died, Legaz provided new evidence of his convoluted character. At the same time that he reaffirmed his loyalty to the memory of the dictator, he confided to close friends that his past prevented him from adopting any different position. [52]

            Francisco Javier Conde took his law degree and doctorate at the University of Madrid. He seems to have then moved to the University of Seville, [53] where he was assistant professor of Political Law, a discipline at the crossroads between law and political science. [54] He benefited from scholarships from the Junta de Ampliaci�n de Estudios, which allowed him to spend time in Paris and Berlin. In the latter city he laid the ground for his thesis on Bodin, [55] and made the acquaintance of Carl Schmitt. Conde seems to have originally been a socialist sympathiser. [56] Like many other upcoming legal theorists, he followed Heller�s lectures in Madrid in 1933.

When the war broke out, Conde was a guest lecturer at the University of Berlin, something that must have been rendered possible by Schmitt. Like Legaz, Conde left behind his Republican past and joined the rebel side. [57] He was part and parcel of the pro-Nazi intelligentsia that gathered in the Frascatti, a coffee bar in Madrid apparently named after an Italian chef. [58] He even courted Pilar Primo de Rivera, sister of the Falangist leader and a prominent figure in the Secci�n Femenina, the extremely conservative female branch of the Falange. [59] Quite soon he became an active author, offering a theory of the caudillaje, an adaptation of  the F�hrerprinzip. [60] The pinnacle of his career as the �intellectual-in-residence� of the regime came with his nomination as director of the Instituto de Estudios Pol�ticos in 1948. He aimed at  both turning the theoretical basis of the regime towards a totalitarian path and recruiting a number of intellectuals who were not necessarily well regardedby the regime, as was the case with Garc�a Pelayo [61] or with Linz, who had a brief stay at the Instituto before starting his academic career in Columbia and Yale. [62] However, the political tension that cumulated in 1956 resulted in his being ousted from the Instituto, thereby frustrating his participation in the drafting of the Ley de Principios del Movimiento. In a move typical of the regime, Conde was offered a golden exile as diplomat. After being assigned to embassies in Manila, Montevideo and Ottawa, he managed to become ambassador to the Federal Republic of Germany, where he died in 1974.

            Leaving aside normative assessments, this relatively sudden and abrupt conversion can be partially explained by the fact that the traditional reactionary scholars were not well equipped to produce a radically new legal and political theory. As the regime directed its energies towards fascistisation, only those well read in Fascist and Nazi theories could push forward the half-baked ideas of Spanish reactionary thought into a more coherent and post-modern canon. Both Legaz and Conde knew not only the works of Kelsen and Heller, but also those of Schmitt and the Fascist legal theory. After all, they had spent more time abroad than at home during the troubled years of the Second Republic. [63] At the same time, the sudden and abrupt conversion explains the partial reversal of their stands. Once the international climate changed, and the fascistisation process was halted and subsequently reversed, they were able to reinterpret their arguments into a more traditional authoritarian framework. [64]

4. The Genealogy of franquista Legal Theory: the Schmittian Donoso

The basic elements of the political philosophy of the early franquismo are to be traced back to the main philosopher of antiliberalism in Spain, Jos� Donoso Cort�s. The work of the latter had had an indirect influence on Spanish reactionary thinking, mainly through French Catholic writers and, later on, through Carl Schmitt. [65] The most novel aspects of the theory of Conde and Legaz were taken from the interpretation of Cort�s offered by Carl Schmitt (from the Schmittian Donoso, one might say). The German constitutional theorist knew Donoso�s work quite well. His close knowledge of Spain, his frequent lectures in Madrid and his friendship with many of the upcoming legal philosophers made of him one of the scholastic authorities of the 1930s and 1940s. [66] This dual Donoso-connection explains the ambivalent character of their thinking- that they were simultaneously anchored in traditional authoritarian thought but also open to more radical conceptualisations.     

In order to show the actual influence of the Schmittian Donoso on Legaz and Conde, I will focus on three main issues of their political and legal theory: (1) the justification of the coup d��tat as the way to power, (2) the legitimacy of the new regime and the nature of law and (3) the concept of the nation.

4.1 The politics of coup d��tat: negative and positive legitimacy of force

            Triumph in the civil war was portrayed as evidence of the rightness of Franco and his followers. For months, the ritual of victory parades was repeated and widely reproduced in the press. However, an insufficiency of what has been termed as �legitimacy of origin� was early felt among the rank and file of the regime. [67] The association of nacional-sindicalismo with order was in stark contradiction with its origins in the coup d��tat, where it  aimed at subverting the legitimately established Republican order. Moreover, its religious credentials could be contested on the basis of the brutality of repression.

In December 1938 [68] a Commission was established with the clear objective of �proving� the illegitimacy of the Republican government. Unsurprisingly, the commission came to the conclusion that �extensive fraud� had voided the outcome of the February 1936 elections. [69] More than the actual works of this Commission, what was relevant was the perceived need to add something to �martial� legitimacy. [70]

Legaz and Conde were among the main players in the establishment of the legitimacy credentials of franquismo. Their argument was two-fold. On the one hand, they attacked the legitimacy of the Republican constitutional order, characterising it as an instance of the Liberal Rechsstaat. On the other hand, they argued that the new regime re-established the substantive Spanish constitutional order. The golpe and the war should be reinterpreted as democratic means of restoring the constitutional order, which had been subverted and undermined by the Republic.

4.1.1. The Critique of Parliamentary Democracy

            Legaz raised three main arguments against parliamentary democracy. Firstly, he argued that the days of the democratic Rechtsstaat were gone to the extent that societies did not longer accept the basic preconditions of liberalism. A system based on discussion could not work when participants did not hold any common set of values. The atomistic character of liberal regimes, their acceptance of factions in the form of political parties, would have depleted the social capital needed for the unity of the fatherland, and would have turned deliberation into economic bargaining. [71] Secondly, liberal democracies were not able to mobilise society, to move people to economic sacrifice, and this was becoming essential in order to face the new economic conditions. [72] Finally, Legaz argued that the Rechtsstaat had become a mere fa�ade, and that liberal states were already becoming totalitarian. If that was true, then, the question was not to decide whether we preferred a democratic or a non-democratic state, but rather which totalitarian state was better. [73]

            Conde added a fourth theme, namely, the sterility or incapacity to take decisions of liberal democracies. The formalism characteristic of the Rechsstaat would lead to an �impersonal nomocracy� that would quickly degenerate into anarchy. The late days of the Spanish Second Republic would provide evidence to this point. [74]

            This line of reasoning is clearly inspired by the Schmittian Donoso.

            Donoso Cort�s had become a renegade of political reason in the 1840s. He developed a thorough critique of parliamentary democracy. Human reason was said to be keen on deceiving human beings- its sinful claim to liberate us from faith led into error. [75] This was so for three main reasons, which anticipate Legaz�s and Conde�s argument. Firstly, the liberal commitment to discussion leads to self-dissolving ethical relativism. It puzzles not only our insight that something must be right and wrong, but also undermines any common set of values. [76] Secondly, parliamentary democracy is sterile and self-defeating. A system based on discussion is unable to take and implement decisions, that is, to act; where action is necessary for the survival of the political community. [77] Thirdly, the right answer to practical questions could not come from discussion, because what leads to truth is not the procedure, but the moral rightness of the participants. [78]

On such a basis, concluded Cort�s, �discussion is the name under which death travels when it does not want to be recognised and works de incognito�. [79]

            The apocalyptic language [80] of Donoso seems to have captivated Schmitt. The characterisation of parliamentary democracy as the regime of the burgues�a discutidora (the deliberative bourgeoisie) constitutes one of the essential insights of The Crisis of Parliamentary Democracy, and also underlies his Theory of the Constitution. [81] Schmitt provided a more modern and radical interpretation of Donoso, [82] which opened vistas to a radical and thorough rejection of electoral democracy.

4.1.2. The Legitimacy of the Material Constitution

            The act of force of the golpe of 1936 was then to be regarded as an attempt at showing the emptiness of parliamentary democracy. However, this was not sufficient to establish the legitimacy credentials of the new regime. If liberalism was doomed, not only fascism, but also other political systems (e.g. communism) could be considered as alternatives. A positive theory of the legitimacy of nacionalsindicalismo was thus needed.

            The key argument of Legaz and Conde was that the new regime was the true political regime of Spain. [83] Against the atomistic tendencies of liberal democracies and the atheistic impulses of socialism, it affirmed unity around the true religious form (Catholicism) and fatherland (the imperial Spain) as the only basis for Spain as a political community. [84] These were the �very essences of the national community�, the �essential legal norms� (juridicidad esencial). [85]

Under such a premise, it was possible to interpret the intervention of Franco, sword in hand, as aimed at postulating a new grundnorm of the Spanish legal system. The Caudillo was the guardian of the Constitution, which could not be understood in a formalistic, self-referential way. Order power and not legal power was at the foundation of the Spanish legal system. [86]

Their argument led to a deproceduralisation and rematerialisation of the constitution, so to say. The substance was provided by a �humanitarian totalitarianism�, [87] which turned every political and social truth into a theological one. [88] The scope for state action was almost limitless to the extent that the state was now in charge of the �salvation of the souls of citizens�. [89] Freedom was also transformed. It no longer had to do with Kantian autonomy, but was equated with the opportunity to save one�s soul. This is based on the neat distinction of body and soul. As with heretics, political enemies need to be disciplined so that they can be saved. They must be enlisted in the militia of salvation. [90] Killing them is permitted if done in order to save their soul. [91] It becomes an almost altruistic act, and therefore, the executor obtains a mark of distinction. [92] In such a way, the Civil War can be depicted as a magnificent event, which led to the establishment of peace [93] and the salvation of men. [94]

The positive theory of legitimacy of the franquista legal and political theory is also clearly indebted to Donoso and Schmitt.

The works of Donoso do not provide a clear political blueprint-Schmitt regretted his incapacity to see clear alternatives aside from an unqualified frontal reaction to mass politics. [95] The Spanish reactionary philosopher seems to have been blocked by his anthropological pessimism. [96] However, we can trace back to Donoso the identification of Western civilisation with Catholic dogma. He put forward a thick conception of politics, according to which living together was based on the suppression of difference, [97] on the representation of unity. This was coupled with the sociological hypothesis that social life is only possible under a single authority. [98] He anticipated the attribution to the state of the task of saving individual souls and the redefinition of freedom as a matter of salvation, which compels us to comply [99] with what is defined as the good. [100]

            Schmitt provided Legaz and Conde with a more refined version of Donoso�s argument. On the one hand, the German scholar put forward a constitutional theory which presented the defence of the substantive or essential constitution against the formal one as a matter of postulation of a new grundnorm. This was implicit in Schmitt�s characterisation of the constitution as the actual expression of a will and the dictatorial powers attributed to the pouvoir constituant. [101] As we will see, his organic conception of democracy severed the link between the democratically elected institutions and the people. On the other hand, Schmitt had made a major effort to offer a political reading of the Catholic form. [102] This provided the basic materials with which Legaz and Conde could elaborate their theological conception of politics and their political conception of Catholicism.

4.2. Law and Power: Decisionism and Caudillaje

            For franquista legal and political theory, law should cease to be a formalistic and impersonal social phenomenon and be rematerialised and contextualised. One could say that law should stop being regarded as a special case of general practical reason and rather become a matter of political decision. The liberal theory of law was thus to be replaced by a theory about how law is to be decided.

            The Spanish version of such a theory was the teor�a del caudillaje (closely resembling the F�hrerprinzip, as already hinted). The selected wise are to make decisions. [103] The last word is reserved to the Caudillo. He becomes the holder of sovereignty, and as such, his personal will becomes the wellspring of all laws. [104] The two personalities of the body politic in the liberal tradition were projected over the Caudillo himself, who was both the pouvouir constituant and the pouvouir constitu�. This got rid of any potential limit to his power. [105]

            Even if the conception of sovereignty of the theory of caudillaje was openly decisionistic, it could not rule out the establishment of some more formal legal system, if only for pragmatic reasons. In ordinary times, the Caudillo would rule by law. His legal system would translate the Christian idea of justice into a set of precise and singular statements. [106] This is the core idea of the characterisation of the state as the Church-State (la Iglesia-Estado). The key insight is that of a dual state, in which the law could be determined either by the legal or the moral code. This intellectual construct not only reiterated the theological connotations of the new regime, but also allowed justifying unbound discretion while retaining the form of law. The Caudillo retained an ultimate power to interpret both the moral and the legal code, in his standing as a secular and religious authority. [107]

One could claim that the role model for Legaz�s and Conde�s Caudillo was the Pope. [108] It is not a mere coincidence that Donoso had managed to shape the modern account of the doctrine of the infallibility of the Pope. [109] He transferred to politics [110] his conception of Papal power as a matter of exceptional or emergency powers, as a matter of taking decisions and not making general rules. [111] Thus, in his speech On Dictatorship, he modelled political emergency powers on God�s miracles. [112] Dictatorship is consequently characterised as the means of last resort to achieve order and avoid anarchy. Donoso attributed this power to the �wise�. The right form of dictatorship is the one that comes from above: from the sword -the aristocracy- and not from the dagger- the populace. [113] This reflects his hierarchical conception of society, half way between feudalism and class discrimination.

Schmitt provided a �legalistic� complement to Donoso. He reinterpreted the works of the latter as a forerunner to his recharacterisation of politics as the domain of the exceptional, but connected it more clearly with legal theory. In his early work as legal theorist, Schmitt had focused on the context of the adjudication of norms. [114] He had attacked Kelsenian formalism by stressing the �decisionistic� jump involved in the process of adjudication. His �theological turn� in Political Theology led to his exaltation of the moment of decision as the essence of politics. [115] As we will see in the next section, this will be combined with a radical criticism of the liberal theory of representation and with an opening towards an organic form of representation of the popular will.

The theory of caudillaje was openly inspired by Schmitt, but it retained the less modern flavour of Donoso�s decisionism.

4.3. The Organic Community: the Nation

            The exaltation of the nation, its sacred unity and its �mission� was a characteristic theme of Spanish philosophy, of a reactionary bent and otherwise. [116] This reflected the �incompleteness� of the Spanish nation-state.

            It is thus not surprising that Legaz depicted the nation as the second person of the secular Trinity (the first was the Caudillo and the third the single party, Falange). [117] The organic character of reactionary conceptualisations of the nation was further developed. Legaz defined the nation as a �corpus mysticum� mobilised in pursuit of the �human destiny in the universal�, [118] a characteristically empty phrase taken from the original rhetoric of Falange. The nation aspired to become �an ideal Christian Community founded on love�, [119] something which required its �identification� with the Caudillo in arms. [120]

            The nation as an organic community was easily combined with forms of organic representation. Conde praised this alternative to the liberal, vulgar reduction of representation to the counting of private interests. In a Catholic vein, representation should be about rendering visible what is invisible. [121] It should not be a matter of transmission of will, but of its actual conformation. [122]

National unity was one of the political realities that could be enjoyed under an organic mode of representation. This was to be grounded in the fact that the national community constitutes and defines citizens and not the reverse, [123] so that citizenship could be plainly denied to those who were different, who were constituted in a different way. [124] This organic conception of the nation is at the basis of the substantive conception of constitution and, as I argued, provides the standpoint from which to attack the �treacherous� belief in democratic majorities. The enemy, turned into a radical other, must be eliminated to bring life back into the nation. [125] Afterwards, the masses should be re-educated into the national spirit. [126]

This organic and transcendental conception of the nation is clearly inspired by the �essential� definition of the nation to be found in Donoso. Against the allegedly liberal tendency to place economic interest at the foundations of political community, Cort�s affirmed his conviction that blood was the ultimate basis of politics. [127] From this conception, as was indicated, follows a transcendental, atemporal definition of membership and citizenship and the affirmation of an organic conception of representation.

Schmitt�s influence is easy to discern as regards the definition of representation. The German constitutional theorist had actually established the case for seeing the Catholic Church as the ultimate reservoir of an anti-economic, anti-technological conception of representation. [128] He had also established the groundwork for a concept of organic democracy. Public opinion and rule by acclamation were presented in a favourable light, [129] and habilitated as alternatives against procedural democracy. Finally, his concept of the political was clearly influential upon Legaz and Conde. [130]

5. Conclusions

            This paper has dealt 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 adopted fascism at relatively short notice, among them Francisco Javier Conde and Luis Legaz y Lacambra. This is not that surprising once we take into account that they were better read in Fascist and Nazi doctrine than the traditional philosophers of reaction. Without opening the difficult chapter of personal responsibilities, it is observed that this sudden and relatively brief fascistisation opened the possibility of a later reconstruction of their work into a more classic and convenient pattern. Their personally �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 can be traced back to Juan Donoso Cort�s, the arch-philosopher of reaction in Spain. However, his influence was mediated by Carl Schmitt. It was the German philosopher who rediscovered Donoso, and also who influenced the reading and interpretation of his works.

            Beyond these set of facts, hypothesis and conjectures, it seems to me that the study of the legal theory of franquismo adds evidence to the need of a contextualised analysis of legal dogmatics. On the one hand, memory of the past is a precondition of proper understanding of the present. The works of El�as D�az, [131] Juan Antonio Garc�a Amado, [132] Benjam�n Rivaya, [133] Ricardo Garc�a Manrique, [134] Jos� Antonio L�pez Garc�a [135] or M�nica Lanero Taboas [136] have contributed to the map of the legal production of the late 1930s and early 1940s in Spain. But their audience seems not to have been sufficiently wide. It is not improbable to read rather bland and depoliticised accounts of the period, or to simply get accounts of the works of the authors in which their role as ideologues of franquismo goes unnoticed. [137] On the other hand, there is a need of pushing further the historical, comparative and multidisciplinary assessment of the period. The forgetful character of the Spanish transition to democracy has rendered Spanish citizens, but also Spanish scholars, insensitive to the mostly unintended, but rather sinister, continuities with the past. In that sense, learning from the Spanish past, but in a comparative perspective, seems the unavoidable next step.