understanding about justice in times of transition. For all its virtues, and there are many, transitional justice is not the panacea for democratization many of its advocates make it to be—in some cases alternative approaches or a mixture of approaches might in the end yield better results. Transitions to democracy come in many forms, some more compatible with transitional justice than others, and they leave in their wake different configurations in the balance of power of the new regime and divergent stocks of residual authoritarian power profoundly affecting what is possible with respect to the political excesses of the old regime; to say nothing of the fact that public attitudes about an anguished past can vary dramatically from country to country.
CHAPTER 1
History, Politics, and Forgetting in Spain
Spain’s Pact of Forgetting conforms to the definition of a “political pact” offered by the democratization literature as “an explicit, but not always explicated or justified, agreement among a select set of actors which seeks to define (or better redefine) rules governing the exercise of power on the basis of mutual guarantees for the vital interest of those entering into it” (O’Donnell and Schmitter 1986: 37). As such, political pacts bring together a small number of elite actors for the purpose of settling issues that bring them into conflict with one another. Traditionally, the making of political pacts in the context of democratization has been done behind closed doors, with nary an opportunity for the general public to weigh in on the decisions being negotiated on their behalf by the political elite (see Encarnación 2005). This unappealing aspect of political pact-making can lead to important decisions about the emerging democratic regime being made before a single free vote has been cast. Not surprisingly, political pacts have been linked to a host of negative and unintended consequences for democratization, from marginalizing civil society groups, such as the labor movement (Karl 1987), to allowing for the transfer of authoritarian vices into the new democratic regime (Hagopian 1992), to promoting corporatist, exclusionary and even undemocratic modes of policy-making (Przeworski 1991).
Yet Spain’s Pact of Forgetting is unique. Unlike most political pacts negotiated during a democratic transition—including Spain’s own Moncloa pacts, the landmark set of accords that committed the government, the national parties, and elements in civil society such as the labor movement and employers’ groups, to collaborate in the making of economic policy—the Pact of Forgetting was never formalized and publicly discussed. No text was ever drafted by those entering into the pact, and no mechanisms were ever stipulated to facilitate its enforcement, including penalties for those choosing not to obey the pact or to walk away from it. Therefore, notwithstanding some legal underpinnings such as the 1977 amnesty law, the Pact of Forgetting is best regarded as an “informal institution,” understood as norms that regulate political conduct (Helmke and Letvisky 2006). More tenuous than formal institutions, informal institutions nonetheless create considerable predictability in the behavior of political actors.
At the heart of the Pact of Forgetting was not forgetting per se (such a goal would have been unattainable under almost any circumstances), but rather a desire by the political class to prevent the memory of certain historical events from encumbering the transition to a new democratic regime. In the wake of Franco’s death in 1975, this objective was to be achieved, first, by not holding anyone accountable for any political crime committed prior to the transition to democracy. This is the most formal (and controversial) part of the pact since it was backed by a comprehensive amnesty process that offered immunity from prosecution to anyone associated with the authoritarian regime and elements within civil society that opposed the authoritarian regime. Another component of the pact committed the government and its opposition to refrain from pursuing public policies that would awaken longstanding historical controversies, such as who bore ultimate responsibility for the Civil War: the Nationalists or the Republicans.
Another component of the pact was not to use the past as a weapon in political deliberations by committing political actors to treading carefully in situations that could be politically divisive, such as the observation of an important historical anniversary like the start of the Civil War. Making an issue of anyone’s past political affiliations (such as attempting to disqualify someone from participating in the politics of the new democracy because of having belonged to a political organization deemed offensive to democratic sensibilities) was also implicit. Former members of the old regime have benefited the most from this provision, since they have been allowed to participate in democratic politics without having their Francoist past thrown back at them. But the provision has also been useful to the left by obscuring the radical background of many leftwing leaders.
More generally, the Pact of Forgetting aimed at arriving at something of a consensus about Spanish history, especially the Civil War. Although the memory of the Civil War remained polarized, for the main actors of the democratic transition the conflict came to be understood as a guerra de locos (war of collective madness) that produced no winners and losers, only victims. In this problematic formulation, both sides bore equal responsibility for the Civil War, which made it redundant to ascribe blame to any particular group in society. The important thing was to ensure that a similar conflict would never happen again, and the best way to achieve that result was to forget and to look to the future. Building a consensus about the past also entailed recognizing that partisan bickering rested deeply in Spain’s past democratic failures and that keeping disagreement to a minimum was the best way to ensure a stable democratic regime. In the democratic period, this consensus about the Civil War was embraced by the entire political class save for extremist elements, such as ETA, for whom the memory of the Civil War became a tool to rationalize its continuing use of political violence against the Spanish state. ETA’s “war memory,” according to Muro (2009: 667), was anchored upon the brutality of the Franco regime against the Basques but also on notable historical distortions, such as the view that “the Basques had suffered a bloody war that did not concern them.”
To be sure, there was less of a historical consensus among those agreeing to the terms of the pact to forget about the Franco dictatorship. Unlike the Civil War, the dictatorship had a clear oppressor (the right) and a clear victim (the left). As observed by Humlebaek (2005: 78), “while the pact of silence with regard to the Civil War was based on equilibrium between the parties, since both sides had taken part in the atrocities of the war, the pact was not characterized by the same harmony insofar as it concerned the Franco regime.” This reality made the Pact of Forgetting inherently fragile and vulnerable to a defection from the left, as was eventually the case. It also explains how the pact itself would be characterized during the years of forgetting. While those on the left have been more prone to refer to the Pact of Forgetting as a “pact of silence,” a necessary evil induced by the traumas of the past and the exigencies of the transition, those on the right have been more inclined to refer to the pact as “a pact of reconciliation” intended to prevent repetition of past political mistakes.
None of what the Pact of Forgetting stood for, however, entailed official censorship or restrictions on intellectual inquiry into the Civil War or the Franco dictatorship by the general public, journalists, and academics; in fact, such inquiry has actually thrived in the post-transition years, a point readily conceded by academics, even those whose works have a liberal bent.1 In stressing the point that the Pact of Forgetting has not entailed censorship, Juliá (1999a: 117) has observed that cultural policy in post-Franco Spain has been “unhampered by ideological compromise” and that historians have been able “to delve into the past as they saw fit.” Valls (2007: 156) writes that after the democratic transition “historians were able to investigate the Civil War and the Franco dictatorship freely, and publications on both periods grew in number and established numerous factual and interpretative approaches that are accepted today by the vast majority of the professional community of historians in Spain.” Boyd (2008: 135), noting the surge in interest in the Civil War since Franco’s passing, estimates that by 1986 the bibliography of the Civil War in Spanish included some 15,000 titles.
