1936 წლის 18 ივლისის სახელმწიფო გადატრიალება და მისი ლეგიტიმაციის მცდელობა ფრანკოს რეჟიმის პირველ პერიოდში
Loading...
Date
2019
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
უნივერსალი
Abstract
The legitimization of 18 July 1936 coup d’etat was one of the most important tasks of Francoist lawyers. They had to prove that the creation and existence of a Popular front government was illegal. They sought to justify the uprising as a legal act of “resistance” against tyrannical authorities on the basis of various political and juridical ideas; to argue that based on the principles of administrative and military law the basic duty of the army was guarding the nation “under the attack of the government”; within the categories of criminal law, to give the qualification of “legal defence” (extreme necessity) to the “military uprising”, which releases from the criminal responsibility. In 1938 Franco's minister of internal affairs Ramón Serrano Suñer, signed an order establishing a commission tasked with approving the illegitimacy of the current Spanish government on July 18, 1936. The 23 members of the commission had to substantiate with “credible evidence” the thesis that “the rebellion was not an act against the government or against the law.” The article discusses in detail the document which was elaborated by the Commission, so-called “Dictamen,” according to which not only Popular Front’s rise to power, but also the origins of the republic itself were illegal and the constitution was not a “fundamental statute of the country.” There were also listed “crimes” committed by the government. The “right of resistance” (ius resistendi) was one of the important argue for justifications of the coup. The activities of Sabino Alvarez Gendin (University of Oviedo) are distinguished in this direction. His arguments had a specific purpose – to justify the military uprising by legal and traditional principles, that is, the right of rebellion as a response on the oppress by tyrannical government, is a universal right and at the same time it is typical of the traditional nature of Spaniards. Based on various theories, Gendin argued that enslaved people have the legal right to rebel against the government, but there are three essential requirements: when all peaceful and legal measures are exhausted, when there is a high probability of success, and when the uprising is proportional measure. The first two requirements according of Gendin were clear, as for to the third, it was less proportional considering of results, but the victory of communism in Spain would have resulted in more terror than in the civil war. Thus, according to Gendin, the sacrifice was worth it. The statements of Ignacio de Lojendio (University of Seville) are also noteworthy in regard with the right of resistance. The difference between Gendin and Lojendio is in the source of inspiration. Lochendio’s views fit in the frames of philosophy of history, while the question of government’s legitimacy shifts to the background. The right to rebel according of him is not an ethical and moral obligation, but a natural act of necessity. Isaiah Sanchez Tejerina (University of Salamanca) is a prominent author in justifying the uprising in terms of “legal defence.” In his view, the national uprising was an example of collective execution of legal defence (though it is an individual act by its nature). According to him, the uprising was at the same time proportional and necessary measure. Another aspect of the justification of uprising was the issue of army’s duty. According to lawyer Jaime Masaveu, the army should protect the nation, because it is a “natural social essence”, while the state is a “political superfetation.” In the case of a dilemma, a soldier defends the “nation” even if it means going against the state. So this postulate goes back to the argument of the illegitimacy of the Republican government. In the field of international law the positions of Jose de Yanguas Messia and Pedro Cortina Mauri are interesting.
Description
Keywords
Coup d'État, Legitimization, Francoist Regime
Citation
III International Symposium for Young Scholars in the Humanities (Symposium proceedings)