Omar Encarnación has written a gripping account of Spain’s remarkable transition to democracy despite its refusal to impose justice on the Franco regime. He tells the fascinating story of the years following the death in 1975 of Francisco Franco after four decades in power, when his hand-picked successor, King Juan Carlos, and a Francoist Prime Minister, Adolfo Suárez, worked to put Spain on the path toward democracy. He explains how and why the Right and Left endorsed a Pact of Forgetting and a 1977 amnesty law that confined the crimes of the civil war and Franco dictatorship to the past so that democracy could take root. As the author says, the purpose of the Pact of Forgetting was to “keep memory from encumbering transition” (p. 27).
While Encarnación demonstrates the success of Spain’s democracy in the absence of retributive justice against the fascist regime, he acknowledges the costs. For example, “the pact of forgetting exacted a high price on Spanish democracy . . . none more obvious than on prolonging the suffering of Franco’s victims” (p. 197). He concludes that “the three decades Spain took to begin to confront the legacy of its dark history, with the 2007 law of historical memory, reveal that coming to terms with the past is not as static or formulaic a process as the transitional justice movement would suggest” (p. 188). By demonstrating Spain’s successful transition in the absence of justice, and by examining the many factors contributing to Spain’s experience, Encarnación has made an important contribution to the transitional justice and democratization literatures.
The author argues convincingly that Spain pulled off this feat for at least five main reasons. First, Spain avoided imposing justice out of fear that doing so would derail the fragile transition to democracy. Specifically, those in government were concerned that if threatened, the military would take over. Any move toward justice against the old regime “would have put the nascent democracy in mortal danger” (p. 69). Second, Spaniards and their politicians were afraid that conflict between competing factions would erupt into civil war, and all agreed that the horrors of Spain’s 1930s Civil War must be avoided at all costs. As Encarnación explains, Spaniards viewed it as a “war of collective madness that produced no winners and losers, only victims” (pp. 28–29). This fear was exacerbated by the pretransition assassination of Franco’s handpicked successor, Carrero Blanco, in 1973, and later reinforced by the attempted military coup in 1981.
The third factor, according to Encarnación, was the erroneous belief that all sides were responsible for the Spanish Civil War and its atrocities. This belief proved a disincentive to calls for justice against Franco’s regime, even though, as the author demonstrates, it bore the most responsibility for the war, for wartime killings, and for violent repression during the decades of his rule. It is, of course, true that all sides in Spain’s Civil War committed atrocities and this “collective culpability” contributed to the lack of will to confront the past. Fourth, according to Encarnación, Spaniards had mixed feelings about the legacy of the Franco regime, and this led to ambivalence about the need to hold officials accountable for the violations they committed (pp. 119–20).
Fifth, there was widespread support from nearly all parties for the Pact of Forgetting and the 1977 amnesty law. Encarnación provides polling and election data in support, but the most convincing evidence comes from the description of the 14 years of rule by the Spanish Socialist Workers’ Party (PSOE) from 1982 to 1996. The PSOE government declined to push for justice even when in power, and even after the democracy was safely entrenched and serious fears of violence breaking out had ebbed (p. 88). After winning power, the PSOE reiterated that it “firmly believed that delving into the past created nothing but trouble” (p. 81).
Encarnación supports his arguments with first-person accounts, voting data, polling data, and a robust analysis of the political factors interacting in Spain’s transition. For example, when discussing the fear that motivated the Left’s endorsement of the Pact of Forgetting and amnesty law, he quotes a leader in PSOE saying that “we forgot about what the right wing had done on the condition that it did not repeat the same behavior” (p. 69). He points out that 93% of those voting in parliament supported the amnesty legislation (p. 72). He cites the opinion piece of Socialist Prime Minister Felipe González in El Pais to show the importance the government placed on joining Europe (pp. 89–90). These and many other first-person accounts support the author’s arguments and add a richness to the overall narrative.
Encarnación paints a detailed portrait of the political interplay between the Left and Right that preserved the pact of forgetting. For example, he describes the political compromises that resulted in the constitutional monarchy, a more limited but still powerful role of the Catholic Church, and the allowance of some self-rule for Spain’s regional governments in Catalonia, Galicia, and the Basque country (pp. 74–76). As he states, “With the past conveniently tucked away with a commitment to forget, Spanish politicians were able to secure compromises on all the pivotal issues” (p. 74).
The author analyzes the “complicity of civil society” in the “strategy of forgetting” (p. 102). This absence of a grassroots movement for justice demonstrates that “one variable that is hard to predict [is] societal impulses toward justice and accountability” (p. 188). He points out that justice movements in other countries have been driven to a large degree by civil society, a point I argue strongly in my research on Latin American justice efforts. This phenomenon may be a factor that explains the Spanish case even more than Encarnación acknowledges. By giving opposition voices full voice in democratic institutions, the Spanish transition to democracy may have silenced civil society’s calls for retributive justice.
Encarnación may overstate the extent to which Spain’s example can teach generalizable lessons about democratizing without justice. While he argues that Spain disproves the argument from some transitional justice scholars that justice is necessary for successful transition, he acknowledges that Spain’s experience is exceptional. He recognizes that the “pact of forgetting is unique” (p. 27) and that “Spain is a miracle” (p. 17). He also recognizes the fact that most of the violence and repression took place three decades or more before democratization began, and this is not typical of other transitions. The transition was driven significantly by the fact that the amnesty strategy in Spain was enacted by the democratic successor regime, with the participation and support of nearly all sides, and not by the outgoing repressive regime. This makes Spain’s experience more like South Africa’s and less like Latin American transitions.
This critique does not take away from Encarnación’s argument that transitional justice is inextricably linked to domestic political factors. It is certainly true that the author’s work on this point teaches crucial and generalizable lessons. He effectively refutes the transitional justice literature to the extent that it portrays transitional justice strictly as a legal choice isolated from domestic political and social considerations. However, he may paint transitional justice scholars as having too narrow an appreciation of this point. There are indeed transitional justice scholars whose work emphasizes the complexity of transitional justice and its link to domestic political and social factors, such as Eric Stover, Kieran McEvoy, Laurel Fletcher, Harvey Weinstein, and Brian Grodsky, to name but a few.
Encarnación uses a rather narrow conceptualization of transitional justice, limiting its meaning to retribution/punishment or reconciliation. Transitional justice can, of course, include these elements, but as I have tried to show in my work, justice is a far more complex and robust concept. Indeed, the transition to democracy in Spain may have quieted calls for justice for a time because democracy itself was seen as a form of justice. If the crimes of the Franco regime included the removal of its opposing political parties from power in the Civil War and then repressing their voices for four decades, then establishing a democracy in which those parties have full voice and participation is an ideal form of restitutive justice. Even some separatists were appeased in the democratic transition through the political compromise that granted several regions limited home rule. As I have argued in my own research, justice is a complex political process, and perhaps when parties who have been excluded from government for decades are given full rights to participate, at least that injustice is remedied. Full democracy is the perfect remedy for the crime of political exclusion.
A look at Latin America shows evidence of the overlap between justice and political voice. When Chile elected Michelle Bachelet, a former political prisoner and torture survivor, as president, this was perhaps a form of justice for all those who struggled for a voice during the Pinochet regime. In El Salvador, the former insurgent organization, the Farabundo Martí para la Liberación Nacional (FMLN), changed its tune on the repeal of that country’s amnesty law upon winning greater political power. In Guatemala, where the democratic transition has been more troubled, we see an attorney general, Claudia Paz y Paz, forced from office for pursuing justice against the former president, Rios Montt.
Encarnación argues that the Spanish case demonstrates that “[d]omestic circumstances can take precedence over international human rights norms in shaping how states settle a dark past” (p. 187). I would argue that domestic circumstances do not take precedence over human rights norms, but the processes used to implement these norms must be built from domestic social and political circumstances. While our books examine fundamentally different questions, our conclusions are strikingly similar. We both urge a “more nuanced and pragmatic understanding of justice” and a “mixture of approaches [that] might lead to better results” (p. 26). Democracy Without Justice in Spain is an excellent contribution to this endeavor.
