that incorporates not only criminal prosecution of the leaders of the old regime and a truth and reconciliation commission, but also reparation for the victims of human rights abuses, reformation of state institutions, such as the courts, the police, and the security apparatus, the erection of museums and memorials intended to “preserve public memory of victims and raise moral consciousness about the past abuse,” and even “gender justice,” defined as challenging “impunity for sexual-and gender-based violence” to ensure “women’s equal access to readdress of human rights violations.”14
A Case That Challenges the Rules
Spain, a case of almost complete noncompliance with transitional justice, significantly expands on the critique of transitional justice laid out already by highlighting several important challenges that so far have gone largely unnoticed. First among these is the assumption that coming to terms with the past, through retribution and/or reconciliation, is a prerequisite or precondition for successful democratization. This claim is implicitly stated in the bleak scenarios that have been painted for nations that neglect to dispense justice for the old regime—from undermining the consolidation of the rule of law by perpetuating a culture of impunity, to preventing society from moving forward, haunted by the memories of unaddressed collective traumas, to, worst of all, inviting the recurrence of evil. But there is little in the Spanish experience to support these contentions.
The de facto impunity institutionalized in Spain with the Pact of Forgetting has led some to criticize Spanish democracy for its “impure genesis” (Cardús i Ros 2000: 19), and to link the rise of the politics of forgetting to some of the most unsavory aspects of post-Francoist politics—like a penchant for secret bargaining among the political class, corruption of public officials, militarization of the police force, and even breaches of the rule of law, such as the creation of the Grupos Antiterroristas de Liberación (better known as GAL), the extrajudicial military force that battled Basque separatists during the 1980s (see Ballbé 1983; Buck 1998; Amnesty International 1985). But these claims do not detract from the overwhelming success of democracy in the post-Francoist era. Paradoxically, Spain is one of the most (if not the most) celebrated cases of democratic transition of recent times, with the case becoming something of an obligatory point of reference for democratization scholars. “Spain is a miracle,” marvels Przeworski (1991: 8), while positing Spain as a model for Latin America and post-communist Europe. Linz and Stepan (1996: 5) note that Spain is the paradigmatic example of “democratic consolidation,” understood to mean that juncture in politics when democracy becomes “the only game in town,” just as interwar Germany can be regarded as the paradigmatic example of “democratic breakdown.”
A second challenge to the transitional justice orthodoxy afforded by the case of Spain is the apparent but seldom recognized compatibility between forgetting and democratization. While the transitional justice scholarship sees forgetting as undermining democratization, the Spanish case suggests the very opposite. Interestingly enough, for much of the scholarship on contemporary Spanish politics, democracy consolidated in Spain not in spite of the fact that the past was put aside during the transition but rather because of it (see Share 1986; Di Palma 1990; Gunther 1992; Linz and Stepan 1996; Gunther, Montero, and Botella 2004; Gunther 2007; Encarnación 2008a). The decision not to delve into the past is credited with minimizing political uncertainly about the outcome of the democratic transition, helping integrate the political class around the project of democratic consolidation, especially those forces most likely to disrupt democratization, such as the military, and ending a vicious cycle of hate and recrimination that for centuries had kept stable democracy at bay. These positive by-products of the pact to forget suggest that forgetting and moving on can actually serve as a foundation for democratization.
Third, the Spanish experience pointedly questions the assumption that a legal or ethical treatment of the past during the transition to democracy is always possible and in the best interest of the process of democratization. Instead, Spain suggests that in some cases a political solution that abridges, circumvents, and delays justice against the old regime might be preferable. This hard truth gets us to the question of why forgetting flourished in Spain in the first place. In Spain, the question about what to do about the past was approached not as an ethical or legal challenge, as the transitional justice movement is prone to do, but rather as a political dilemma. This entailed doing what was possible rather than what was right. As seen next, conditions on the ground dictated this overtly political calculation, especially a sociopolitical environment that provided no room for questions about the past to emerge. On the one hand was societal resistance to any revisiting of the past; on the other was the political dynamics and legacy of a state-led democratic transition.
The Traumatic Past
The most popular explanations for the rise of forgetting in Spain all relate to how the traumas of the past affected the political mindset of the Spanish political elite and society at large around the time of the democratic transition. The best known among these “psycho-political” explanations is the theory of memoria traumática (traumatic memory), which stresses that during the transition the Spaniards willed themselves into political amnesia as a direct consequence of the collective traumas inflicted by the Civil War and the postwar period. In essence, this Freudian-inspired theory analogizes Spain to an individual afflicted with a severe case of Post-Traumatic Stress Disorder (PTSD), a condition whose symptoms include reexperiencing the original traumas through flashbacks or nightmares, and avoiding situations or potential situations associated with traumatic past events for fear that they may reoccur. Reams of studies in the Spanish psychological literature support the PTSD diagnosis (Ruiz-Vargas 2002; González Duro; 2003; Mínguez Villar 2004). A comprehensive review of this literature concludes that “the brutal repression imposed upon the losers of the Civil War not only impeded the possibility of overcoming the traumas of the war, it also added an abusive burden of suffering. The politics of terror and silence imposed by the dictatorship created an environment that engendered a veritable epidemic of post-traumatic stress” (Ruiz-Vargas 2006: 1).
Fears about repeating the past, specifically falling back into civil war and dictatorship, were induced not only by the memory of the past but also by how the past had been manipulated by the Franco regime. According to Aguilar (2002: 25), “Francoism instilled a ferocious, obsessive, and omnipresent fear of any repetition of the Civil War,” from which arose a national consensus on nunca más (never again), a phrase meant to convey that Spain would go to any length to avoid becoming embroiled in a similar conflict. A corollary of the nunca más discourse promoted by the Franco regime was the deliberate association of democracy with anarchy and divisiveness and of dictatorship with peace and prosperity. The intention was to legitimize Franco’s contention of having saved Spain from chaos and destruction, a founding myth of the dictatorship, while planting doubts in the public’s mind about the country’s capacity to comport itself under democracy.
Further exacerbating fears about repeating the past was the political violence surrounding the transition. Although the Spanish transition is remembered for a proliferation of elite pacts, like the pact to forget, political violence was quite characteristic of the era. In fact, Spain witnessed more acts of political violence and terror during the transition to democracy than any other nation in Southern Europe or South America, including “revolutionary” Portugal. Especially notable in affecting the collective psyche of the Spanish public was a wave of political assassinations—more than 200 between 1979–1980, most of them perpetrated by Euskadi Ta Askatasuna (ETA, the armed branch of the Basque separatist movement), which eerily resembled the one that preceded the advent of the Civil War. Understandably, as will be seen later, public opinion in Spain for much of the post-transition period suggests that the public has been more concerned with order and stability than with justice and accountability, and regarded the latter as a threat to the former.
Another popular psychopolitical explanation for forgetting revolves around how the general public constructed its memory of the Civil War and its consequences and how this “collective memory” worked to dissuade confronting the past and actually actively encourage a culture of political forgetfulness. A
