KEYBOARDS GUESTS: OJEA JF and S. RODRIGUEZ PAZ GARCIA.
In this post we present the fundamental contents of the text:
Amado García, Juan Antonio, "Uses history and constitutional legitimacy, "in José Antonio Martin Pallin and Rafael Escudero Alday (eds.), Law and historical memory , Madrid: Trotta, pp. 47-72.
The goal is to open the debate on the position that the author claims.
1. History, legitimacy and effectiveness of the constitutions
The legitimacy of a constitution should be considered from two points of view: the objective or theoretical (which varies according to the doctrine that we address and time when we move) and the social belief based on two essential elements:
1. Essential elements of social order are fair.
2. The vision of state as part of a joint project.
of these elements comes the creation of the concept of "we" that has different livelihoods (language, common culture, etc.) Among which we highlight a common history. However
questioned because the author remain a nation state and because to live together under a unifying constitution in this state called Spain and pick up three theories or visions:
• The cosmopolitan vision would be that could be associated with European Union. In this the English Constitution is as convenient until it reaches the full consolidation of supranational structures.
• Nationalist: It would be the view of Spain considers that the English Constitution is the best block to the English nation based on the idea that it is much more that unites us than divides us.
• peripheral nationalists: would the vision of the Basque Country, Catalonia and Galicia. Which advocates replacing the current constitution, since the English state must give way to other nations that live under.
Cosmopolitans and nationalists defend the current constitution while the peripheral nationalists seek a replacement.
To try to solve this conflict history plays a key role but we must bear in mind that the story is cut and choose.
2. Labels and dilemmas of the left
For a constitution to be effective you must believe in its legitimacy.
Legitimation in Franco is based on Catholic religious legitimacy with an exaltation of Spain as a nation one and indivisible.
The author asks what are the essential beliefs should legitimize the English Constitution and reflects the thinking of the different political about it:
• Right: always with some reluctance to autonomy and bilingualism, conceives history of Spain as the nation's only true and possible.
• Peripheral Nationalism: Based on history to exalt historical struggle with Spain.
• Left: Unable to exit the ideological maze trapped since the transition. Give the defense of the unity of Spain to the right (reminiscent of Franco). Therefore seek refuge in order to legitimize this system in the fairness of the constitutional model that respects the dignity and rights of every citizen and undoubted democratic social content.
The Constitution is deprived of his standing is modified by the Statutes of Autonomy, an emerging conflict difficult solution.
3) The transition and the problem of the historical legitimacy of the English Constitution.
The law of historical memory is left trying to retake the history of Spain as a legitimation of the existing constitutional order, by a route different from the right and his use of history for such purposes.
The Law of Historical Memory has a hidden purpose, "to renew the historical legitimizing the present constitutional order", will connect the current constitution of the Second Republic.
is done to address the fragmentation that was brewing between the history of Spain and other stories "national" wants a new common history based on leaving behind the transition and constitutional legitimacy to link with the Second Republic.
4) Rights of the law.
-Purpose rehabilitation of victims of the Franco regime and recognition of injustice. Many
-existing rights to the victims will be expanded.
"They incorporate some new rights:
• Acquisition of English nationality and grandchildren of those who lost their English nationality or had to give it up as a result of exile.
• Ability to acquire English nationality the voluntary members of the International Brigades.
"The law has a more political than strictly legal.
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