October 24, 2020

The law of the pendulum and the Magna Carta | Babelia


Professor Joaquín Varela dedicated the bulk of his long and profitable research and teaching life to the study of Spanish historical constitutionalism. His readers eagerly awaited the overview that could be expected from the author of more than two hundred and a half works on the subject. After his death, the manuscript of this is finally published. Constitutional history of Spain edited in the care of his disciple and also an expert on the matter, Ignacio Fernández Sarasola.

Each text of our constitutional history has a bibliography ad hoc, reinforced by the publication of the meritorious collection of nine monographs on the different Constitutions directed by Miguel Artola and published by Iustel publishing house. These monographic works have not been translated into overviews beyond the already classic studies of Luis Sánchez Agesta, Joaquín Tomás Villarroya and other brief approaches to the subject. The method followed by Joaquín Varela in this work is to submit the different constitutional texts to the quadruple examination of their doctrinal sources, of their dogmatic part consisting of the regulation of rights and freedoms, of their organic aspect with the description of the powers and main institutions of the State, and the historical-political context in which the Constitutions arise and live.

The study begins with the consideration of the constitutional debate in the last third of the 18th century, the Charter of Bayonne and the Cadiz Constitution of 1812. It is followed by the analysis of Elizabethan constitutionalism (Royal Statute of 1834, Constitutions of 1837, 1845 and the non nata 1856), the two texts of the revolutionary six-year term (Constitution of 1869 and constitutional project of the First Republic), to continue with the careful analysis of the text of 1876 and its evolution until it was put in parentheses by the dictatorship of Primo de Rivera in 1923 The book continues with a leisurely study of the Republican Constitution of 1931, the Fundamental Laws of the Franco regime, despite not constituting a Constitution in the strict sense, and the transition process, until culminating in the current Constitution of 1978.

Joaquín Varela points out the contrast between a progressive constitutional tradition (1812, 1837, 1856, 1869), characterized by the recognition of the idea of ​​national sovereignty, the sensitivity regarding the enumeration of fundamental rights and freedoms and the curtailment of the power of the Crown, and another conservative, of greater validity in the History of our liberalism (Royal Statute of 1834, 1845, 1876), characterized, among other features, by the recognition of an idea of ​​an internal Constitution, favorable to equip the Crown and the Courts as supports of sovereignty. The regulation of the religious question will have to be another point of contrast between one and another tradition. Likewise, it is worth highlighting the greater propensity to centralism of moderate constitutionalism, in contrast to the tendency towards municipal and provincial autonomy on the part of the progressive. A succession of Constitutions that reveals the failure of our liberal past to offer constitutional texts of consensus that allowed the alternation in power of the different political parties and ideologies of Spanish history. Consensus constitution finally achieved with the 1978 text, something that had also been achieved with the 1837 Constitution and, to a large extent, with the 1876 Canovista.

When looking for the ties of the current Constitution with our past, the author underlines the preferential connection with a progressive tradition and, especially, with the republican Constitution of 1931. It was not for nothing then that an attempt was made to transcend the liberal rule of law dominant in our history, despite its occasional imperfections, the social and democratic state of law, enshrined in the Second Republic and in our current democracy.

Among many other suggestions present in the book, attention should be drawn to the insertion of our constitutional history in the European and American course of constitutionalism, well taken into account by the intellectual and political protagonists of our liberal and liberal-democratic past, both from the doctrinal and legal point of view. Also noteworthy is the call for attention to the supposed carousel of constitutional texts that would be visible in our contemporary history as a consequence of that lack of consensus.

In any case, and regardless of whether the number of texts is exceeded by a country as significant in constitutional history as France, it should be noted the fact of the long influence of the transactional Constitution of 1837, whose text and spirit are present in the texts of 1845 and 1876, as well as the long validity of both the 1876 text, the result of the understanding between the conservative party of Cánovas del Castillo and the liberal party of Sagasta, as well as the 1978 Constitution. The book closes with an informed balance of the development of political law, in parallel to the evolution of our constitutionalism.

The enormous work of Joaquín Varela is subsumed in this fundamental study on the constitutional history of Spain. A work that will become an obligatory reference for our constitutionalists, historians, political scientists, and very especially, as the author wished in his introduction, in a book that would be attractive to read for a cultured public, curious about a fundamental aspect of our past.

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