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Introduction

William Faulkner’s famous dictum that “the past is never dead; in fact, it is not even past” aptly captures how the past looms over contemporary Spanish politics. In 2007, the Congress of Deputies approved the Law of Historical Memory with the intention of reconciling the dark legacy of the Spanish Civil War (1936–1939), that epic interwar showdown between democracy and fascism generally regarded as a dress rehearsal for World War II, and the dictatorship of Generalissimo Francisco Franco, whose 1936 coup against the popularly elected Second Republic set the Civil War in motion. Scores of mass killings committed by both sides of the conflict (the right-wing Nationalists and the left-leaning Republicans) earned the Spanish Civil War worldwide infamy. But the violence of the Franco dictatorship, less known outside Spain, was just as brutal and horrific. Franco ruled Spain with an iron fist for nearly four decades, from his declaration of victory over the Republican army on April 1, 1939 to his death of natural causes on November 20, 1975, with the bulk of the violence falling disproportionately during the early years of the dictatorship. With the major democracies of the day (Britain, France, and the United States) at war with Germany’s Nazi regime, Franco undertook a vicious policy of limpieza (cleansing) that resulted in the execution and imprisonment in concentration and labor camps of hundreds of thousands of left-wing sympathizers. This bloody campaign gave Franco bragging rights of being the Cold War’s most successful anticommunist crusader.

Spain’s encounter with the past in 2007 was long overdue given the unorthodox handling of the political excesses of the Civil War and the Franco dictatorship during the 1977 democratic transition. To coincide with the restoration of democracy, the national parties from the right and left negotiated the so-called “Pact of Forgetting” with the intention of letting bygones be bygones. As a consequence of this informal agreement no one was put on trial for the political crimes of the old regime or disqualified from playing a role in the politics of the new democracy, since the pact was accompanied by a broad amnesty law that granted immunity for all political crimes committed prior to 1977. The contrast with Spain’s sister Southern European dictatorships, Greece and Portugal, whose transitions to democracy roughly coincided with the Spanish transition, is striking. The members of Greece’s Colonels’ regime (1967–1974) were hauled off to court on charges of high treason, resulting in death sentences for the top military leadership, sentences later reduced to life in prison. Portugal’s Salazar-Caetano regime (1932–1974) was subjected to a policy of “lustration” intended to purge the state and society of authoritarianism. The purging began with the military and was gradually extended to the civil service and authoritarian collaborators in the business community, the media, and the Catholic Church.

Another consequence of the Pact of Forgetting was to thwart any attempt at “truth-telling” like Argentina’s Nunca Más (Never Again), the report by the National Commission on the Disappearance of Persons that chronicled the human rights abuses of the military dictatorship between the years of 1976 and 1983 and that launched several analogous efforts across South America, and South Africa’s landmark Truth and Reconciliation Commission (TRC), which examined the sins of apartheid. Furthermore, the pact to forget effectively precluded an official condemnation of Franco’s military coup in 1936 and even a memorial and an official apology to the many victims of the old regime. Adding insult to injury, the pact facilitated the survival of numerous monuments across the Spanish territory honoring Franco, including the infamous El Valle de los Caídos, Franco’s megalomaniacal monument on the outskirts of Madrid to his Nationalist crusade, which today houses his remains and those of José Antonio Primo de Rivera, founder of the Spanish fascist organization Falange, who was executed by the Republicans during the Civil War.¹ The upkeep of Franco’s burial site is underwritten by the Spanish state, including, until 2007, a mass held by Benedictine monks on the anniversary of his death.

Instead of justice and truth, forgetting and moving on prevailed in Spain. For decades into the new democracy the memory of the past, especially that of the Civil War, appeared to have vanished among the usually contentious Spanish political class. The only occasion that merited a reference to the past was to stress the importance of not talking about it. In 1977, in anticipation of the first democratic elections since 1936, communist leader Santiago Carrillo, the most prominent member of the democratic opposition to the Franco regime, noted that “In our country, there is but one way to reach democracy, which is to throw out anyone who promotes the memory of the Civil War, which should never return, ever. We do not want more wars, we have had enough of them already.”² Yet more unexpected is that the pact to forget succeeded in turning the past into a taboo among ordinary Spaniards, by making discussions of the violence of the Civil War from either side of the conflict and the political repression of the Francoist era inappropriate and unwelcome in almost any social context. Commenting on the apparent disappearance of the memory of the Civil War among the Spaniards, the Economist noted in 2006: “The pact of forgetting has meant that mere mention of the Civil War has been kept of out everything, from politics to dinner-party conversations.”³

Oddly enough, for a piece of legislation generally seen as an act of deferred justice against the Franco regime (Aguilar, Balcells, and Cebolla-Boado 2011), the 2007 Law of Historical Memory is remarkably short on accountability. Indeed, the law left in place much of the status quo about the past introduced by the Pact of Forgetting. Although the law offered reparations to those victimized by past injustices and condemned the Franco regime as “illegitimate,” it did not overturn the 1977 amnesty law, making it highly unlikely that anyone associated with the old regime will ever face prosecution on human rights charges. Ironically, today in Spain only those seeking to bring former Franco officials to justice are risking prosecution in connection to the crimes of the Franco regime. In 2010 a court indicted “Super Judge” Baltazar Garzón, the maverick magistrate who gained worldwide fame in the late 1990s for his audacious indictment on human rights abuses of Chilean General Augusto Pinochet, on charges by the conservative group Manos Limpias that Garzón had abused the powers of his office by attempting to use the Law of Historical Memory to prosecute former Francoist officials.⁴ Garzón was eventually acquitted, but other charges forced him to relinquish his judicial post, thereby ending all meaningful efforts to bring justice to the Franco regime.⁵

More striking is that the Law of Historical Memory did not automatically nullify the verdicts of those sentenced by Francoist tribunals, including the kangaroo courts created after the end of the Civil War in 1939, which convicted thousands of people for simply having supported the Republican government, nor did the law call for the organization of a truth commission to examine the human rights abuses committed during the Civil War and the Francoist period. To its credit, the law mandates removal from public spaces of monuments that glorify either of the sides that fought the Civil War (a stipulation that applies mostly to the numerous monuments honoring Franco and his regime, including those in Catholic churches, a reflection of the symbiotic relationship that developed between the old regime and the Catholic Church), but it protects monuments that possess “historical and cultural significance,” including Franco’s burial site at El Valle de los Caídos.

The Lines of Inquiry

The rise and persistence of the politics of forgetting in Spain pose important questions about how nations settle a “dark” past and the consequences of the polices put in place to deal with that past for the emerging democratic regime. Foremost among these questions is why the reluctance to adopt conventional means for dealing with the political excesses of the old regime, such as political trials and a truth commission? What explains this apparent case of Spanish exceptionalism? And what has been the legacy for Spanish democracy and society at large of the deliberate repression of the memory of the violence and political excesses of the Civil War and the Franco dictatorship entailed in the pact to forget? Did the absence of justice and truth prove to be a hindrance to democratization in Spain? These questions gain much significance when we consider, first, the bundle of contradictions, ironies, and paradoxes embedded in the case itself.

Given its troubled history, Spain was an unlikely candidate for adopting a strategy of forgetting and moving on. A voluntary agreement to repress the memory of a violent past would be remarkable for any society, but especially for Spain, a country notorious for its anarchic character, polarized parties, and rebellious civil society, and hence a longstanding scholarly reputation for being “different,” a euphemism for unfit for democracy that darkly hinted at the Spaniards’ propensity for violence, revenge, and recrimination (Wiarda 1973). Predictably, the forecasts issued by scholars for Spain around the time of Franco’s death failed to foresee the rise of a collective will to forget. By and large, these forecasts warned about the return of the old habits that for centuries have nourished the well-known myth of the two Spains: a country tragically divided into two halves that can never find a way to get along. These sentiments were perfectly captured by historian Richard Herr (1971: 27), writing in the twilight of the Franco era:

Spain’s future is still wrapped in mystery. Like every country that has been ruled recently by a strong man, it is subject to the question, after he goes what? For Spain this anxiety is especially keen because it has a long history of political instability, going back to the nineteenth century. Spaniards have appeared by nature rebellious and politically mercurial. Indeed their recent striving for economic betterment has been interpreted as a sublimation of the energy that they would normally devote to political agitation, a sublimation forced upon them by the ban on politics. Should the ban end, many persons, both friends and enemies of Franco, anticipate that Spaniards will return to their former habits.

Moreover, social science theories would have predicted that Spain after Franco was destined for a robust encounter with some form of reckoning with the past. Arguably, the most reliable variable for understanding whether justice against the old regime would be part of the transition is the extent to which state-sponsored violence and repression penetrated the social fabric (see Borneman 1997; De Brito et al. 2001; Hite and Cesarini 2004). From this perspective ensues the popular hypothesis that the more violent and repressive the legacy of the previous regime, the more vigorous and comprehensive the attempt at justice will be. There is much logic to this thinking, since an especially repressive regime is likely to embolden citizens to demand justice from the new democratic regime during the transition while creating a powerful incentive for the new government to want to hold the old regime accountable for its crimes.

Assumptions linking the legacy of violence and repression of the old regime to the dispensation of justice during the transition are powerfully challenged by Spain, which under Franco endured far more violence and repression than either Portugal and Greece or South America’s infamous bureaucratic authoritarian regimes (Argentina, Brazil, Chile, and Uruguay), countries that all underwent some kind of reckoning with the past. To be sure, the lion’s share of the violence and repression that gave Franco notoriety took place in the early 1940s, so that by the mid-1970s the worst memories of the Franco regime were receding into history. But the regime remained repressive and violent through its last days, a point often overlooked by studies of the late Franco era (Townson 2007). As will be seen later, in its final years the Franco regime turned quite repressive, especially after the 1973 assassination of Admiral Carrero Blanco, Franco’s designated political heir, which triggered the return of political executions and restrictions on civil society organizing and public mobilization not seen in decades.

Also noteworthy is that while stubbornly refusing to look into the dark history of human rights abuses under Franco, Spain since the democratic transition has accumulated an outstanding record of complying with international human rights conventions. Spain is a signatory to all the major international human rights accords, including the International Covenant on Civil and Political Rights, the accord that tabulates the first half of the rights and freedoms enshrined in the Universal Declaration of Human Rights, which Spain signed in April 1977, in the midst of the transition to democracy, and the European Convention on the Prevention of Torture, which it signed in 1987. A plethora of national laws prevent torture and inhumane treatment, including a ban on the death penalty, which has not been carried out in Spain since Franco’s passing.

On some human rights fronts, such as expanding the rights of ethnic and sexual minorities, Spain has led rather than followed the international community. It has been a leader in extending home rule to culturally distinct communities such as the Basques and the Catalans, arguably the most autonomous of Europe’s “stateless peoples,” a development that ensued from the recognition of different nationalities within the Spanish territory in the 1978 Constitution. In 2005, Spain became only the fifth country in Western Europe, and the first Catholic-majority country in the world, to enact samesex marriage legislation that makes no distinction in the right to marry and adopt between homosexual and heterosexual couples. This landmark law influenced the expansion of gay rights in the Iberian-Latin world, including, most notably, legalization of same-sex marriage in Argentina and Portugal in 2010 and in Uruguay in 2013.

Most ironic of all, however, is the prominent role Spain has played in popularizing the practice of prosecuting former despots. Judge Garzón’s 1998 indictment of General Pinochet established the principle of “universal jurisdiction,” which holds, in a nutshell, that some crimes are so heinous that they offend all of humanity and are therefore prosecutable by any nation. In 2005, the Constitutional Court, Spain’s highest court, ruled that a lower court could proceed in investigating crimes of genocide, murder, and torture committed by the military during Guatemala’s Civil War, arguing, to the delight of human rights activists everywhere, that “The principle of universal jurisdiction takes precedence over the existence of the national interest.” These actions further burnished Spain’s reputation as a human rights trailblazer while highlighting an apparent double standard (if not outright hypocrisy) in how Spain regards the issue of the crimes of an old regime: forgetting for itself and prosecution for everybody else.⁶ Wilder Tyler, legal and policy director for Human Rights Watch, highlighted this double standard when noting: “Spain is an obligatory reference to many countries in the process of democratic transition. I do not understand why Spain does not apply to itself the same standards of justice that it demands of other countries.”⁷

But it is the manner in which the Spanish experience so boldly flies in the face of the “transitional justice” movement that makes any investigation into the rise and consequences of Spain’s politics of forgetting so compelling. Transitional justice refers not only to the measures undertaken during the period of democratization to bring accountability to the previous regime for its human rights abuses, but also, as seen next, to a set of normative theories about the importance of “coming to terms with the past” (see Kritz 1995; Ignatieff 1996; Rosenberg 1996; Crocker 1999; Tutu 1999; Teitel 2000; Boraine 2006). Due to this movement’s influence—it has largely shaped an international consensus on the need for emerging democracies to confront their past—leaving the depravity of the old regime unpunished or unexamined is no longer an acceptable option for any respectable member of the international community.

Unsurprisingly, given the impunity embedded in the 1977 Pact of Forgetting and the 2007 Law of Historical Memory, Spain has been denounced in international forums as something of a transitional justice outlaw.⁸ In 2002, the United Nations cited Spain as a state that has yet to properly address its past and urged the country to lift its amnesty law, arguing that it contravened state duties to prosecute, prevent, and punish human rights abuses. Major human rights organizations including Amnesty International, Human Rights Watch, and the International Commission of Jurists have criticized the 2007 Law of Historical Memory for failing to conform to international justice standards. In the view of these organizations, the shortcomings of the law, especially the persistence of legal protections against prosecutions, “prevent the truth from emerging and treat the victims of human rights abuses as passive elements.”⁹

The Age of Transitional Justice

Although often thought of as a new phenomenon, transitional justice is as old as the rise of democracy in the modern world. During the French Revolution, an era of unprecedented democratic ferment, the newly declared Republican government agonized over the fate of King Louis XVI, before finding him guilty of “crimes against the people” and handing him the most gruesome of sentences: death at the guillotine. What is new about transitional justice is its emergence as the linchpin of a new morality in international politics, one that regards human rights as above domestic laws, customs, and conditions and respect for human rights around the world as a matter of concern for the international community as a whole. Such developments explain talks about the advent of “the age of transitional justice” (Philpott 2007: 2), sustained by an expansive “transitional justice industry” (Theidon 2009) led by human rights activists, leading political theorists and legal experts, multilateral organizations like the United Nations and the International Criminal Court (ICC), NGOs such as Human Rights Watch, Amnesty International, the International Commission of Jurists, and the American government, which under the George W Bush administration made justice against the Saddam Hussein regime a centerpiece of its democratization policy in Iraq.

More important, the rise of transitional justice has generated widespread claims about the advent of universal standards of justice and accountability for departing authoritarian regimes. Benhabib (2009: 695) notes that transitional justice exemplifies “the transition from international to cosmopolitan norms of justice.” Whereas norms of international law “emerge through treaty obligations to which states and their representatives are signatories,” cosmopolitan norms, according to Benhabib, “accrue to individuals considered as moral and legal persons in a worldwide civil society.” In this way, “cosmopolitanism” self-limits or self-binds the sovereignty of states by obliging them to treat their citizens in accordance with human rights standards. This willingness of states to conform to the postulates of transitional justice is thought to take place in a variety of ways, but almost all of them emphasize the role of international norms and values in shaping domestic practices and behaviors.

While some scholars emphasize how the willingness of governments to sign international law treaties empowers domestic human rights stakeholders to press for accountability for outgoing authoritarian regimes (Simmons 2009), others emphasize the phenomenon of contagion in the international arena. Sikkink (2011) highlights a “cascade of justice” in international politics in the years since the end of the Cold War prodded along by countries copying one another and by multilateral institutions such as the ICC and ICTJ. Others highlight the international “diffusion” of human rights norms that takes place through “socialization,” defined as “the crucial process through which a state becomes a member of the international society” (Risse and Sikkink 1999: 11). Socialization emerges “not in isolation but in relation to and in interaction with other groups of states and international non-state actors,” and its goal is “for actors to internalize norms, so that external pressure is no longer needed to ensure compliance.” Such external pressure includes “strategic bargaining,” “moral consciousness-raising,” and “shaming” (11–13). Key to the success of socialization is the work of “transnational action networks” that operate across national boundaries in creating and enforcing human rights norms and practices by linking international and domestic actors (Keck and Sikkink 1998).

There is, to be sure, no consensus within the heterogeneous transitional justice movement on what bringing accountability to an old political regime actually entails. But at least two very distinct models can be identified. These models represent the two intellectual wings that dominate the transitional justice movement: “retribution” and “reconciliation.” Although often deemed polar opposites, both models make the case for coming to terms with the past as a democratization imperative, by linking retribution and reconciliation to such outcomes as helping to consolidate the rule of law, enhancing democratic values, bringing dignity to those victimized by political violence or repression, purging the body politic of the memory of political trauma, and preventing history from repeating itself. Failure to confront the past, out of political expediency or societal apathy, is presumed to lead to the emergence of a weak or flawed democracy, one unable to garner much support among the citizenry because of the impunity afforded to the old regime, and vulnerable to painful eruptions of memory that ensue from having repressed a past that was never properly examined and exorcised.

Retribution Versus Reconciliation

As the name itself implies, retribution promotes vigorous prosecution of the old regime. “Crimes against humanity” is usually the charge, which places the genesis of retribution in the landmark Nuremberg International Tribunal, the ad hoc court convened by the victorious Allies in 1945–1949 to prosecute former Nazi officials for the horrors of the Holocaust. At the conclusion of the trials, Nuremberg prosecutors were successful in obtaining verdicts that included the death penalty for 12 high-ranking Nazi officials, 10 of whom were hanged on gallows erected at the courthouse where the trials were held, and in putting on trial lesser actors such as doctors, lawyers, and industrialists affiliated with the Nazi regime. This achievement accounts for Nuremberg’s reputation as having served “an important exemplary and jurisprudential function” for how nations should confront the misdeeds committed or sponsored by a prior regime (Judt 2002: 161), even as the legacy of the trials remains the subject of debate among historians (Rabkin 1999; Hirsch 2008; Rodden 2008).¹⁰

Foremost among the virtues linked to retribution is strengthening the rule of law by boosting the principle of equality under the law and due process for all parties in society since it demonstrates that no one is above the law. The absence of prosecution, by contrast, is thought to undermine the rule of law by perpetuating tolerance of a culture of impunity and disregard for human rights. Garton Ash (2002: 269) notes that “the fact that the torturers or the commanders go unpunished, even remain in office, compromises the new regime in the eyes of those who should be its strongest supporters.” At a more practical level, making former despots pay for past political misdeeds is thought to serve as a deterrent against future human rights abuses. According to this view, trials not only enforce moral norms, they also drive home the point about the consequences of wrongdoing. This was a key rationale behind the staging of the Nuremberg trials in the first place. At the end of World War II, several British and American politicians, including Winston Churchill, favored swift execution of the main architects of the Nazi regime without due process. But as U.S. Secretary of War Henry Stimson, a strict legalist, observed in making the winning argument in favor of political trials over extrajudicial killings, “We should always have in mind the necessity of punishing effectively enough to bring home to the German people the wrongdoing done in their name, and thus prevent similar conduct in the future” (Cooper 2009: 92).

Prosecuting the previous regime is also seen as necessary for rooting democratic values in society and encouraging ordinary citizens to support these values. Behind this association of justice and democracy is the belief that dispensing justice against an old regime can act as a teaching moment capable of transforming public attitudes. According to Teitel (2000: 3), transitional justice contributes to the “defining feature” of democratic transitions by grounding within society “a normative shift in the principles underlying and legitimizing the exercise of state power.” Accordingly, it is widely assumed by transitional justice proponents that “the better the transitional justice, in the sense of having more vigorous, morally engaged and pedagogically adequate trials, the better the democratizing outcome will be” (Pendas 2008: 58).

Reconciliation’s chief concern is establishing an official record of the human rights abuses of the old regime rather than prosecuting that regime. South Africa’s TRC is widely regarded as the paradigmatic example of reconciliation.¹¹ Because of the primacy accorded to truth-telling, reconciliation advocates have been known to support partial or full amnesty for members of the old regime, something generally regarded as anathema by retribution advocates. As noted by Benomar (1993: 5), “tactical and prudential considerations,” such as whether new democracies can survive convicting and punishing the previous regime, generally underpin any decision to forgo prosecution. But the driving force of reconciliation resides in truth-telling itself, as a means to shift attention in the dispensing of justice against the old regime away from the perpetrators of human rights abuses and toward their victims, with trials often seen as too legalistic to adequately convey the suffering of the victims. Aukerman (2002: 71) contends that “while trials may have moments of high drama, their formalism and rigidity can also make them excruciatingly boring.”

A desire for truth-telling also stems from the belief that only a complete accounting of the horrors of the past can bring about societal catharsis from the trauma inflicted by large-scale human rights abuses. “The truth will set you free” is a popular refrain among reconciliation advocates that features prominently in the work of transitional justice organizations. According to Boraine (2006: 20), “Documenting the truth about the past, restoring dignity to victims and embarking on the process of reconciliation are vital elements in the creation of a just society.” The catharsis that the truth is meant to achieve is also generally seen as a precondition for forging ahead with the future, with that future usually a stand-in for democracy. Rosenberg (1996: xviii) has argued that “nations, like individuals, need to face up to and understand traumatic past events before they can put them aside and move on to a normal life.”

Reconciliation is also animated by the idea that developing a consciousness about past abuses can prevent future abuses. Analyzing the importance of remembrance to the transitional justice movement, Garton Ash (1998: 35) notes that many scholars have made coming to terms with the horrors of the past a necessity for “redemption” for past wrongs and for avoiding “the recurrence of evil.” Such arguments echo the post-Holocaust German concept of Vergangenheitsbewältigung, broadly understood to stand for “mastering” the past for the purpose of avoiding its reoccurrence (Maier 1988; Herf 1997; Langenbacher 2005). Analogous views are evident in Western political philosophy running from Greek philosophers (Plato in particular) to the Spanish-American philosopher George Santayana, who is credited with the popular aphorism “Those who cannot remember the past are condemned to repeat it.”¹²

Last, but not least, reconciliation is premised on the view that justice is intrinsically intertwined with forgiveness, an assumption that draws from the Christian tradition and that has granted religion and reconciliation “an elective affinity” (Philpott 2007: 2). Indeed, for some, the use of religion in discussions of reconciliation represents one of the most overt displays of “public religion in the modern world” (Casanova 1994). According to South African archbishop Desmond Tutu (1999: 52), the TRC’s charismatic chairman, “justice is being served when efforts are being made to work for healing, for forgiveness, and reconciliation.” From this thinking emerged what has been termed “restorative justice,” a victim-centered process of political reconciliation that aims to empower and restore the dignity of victims (Braithwhite 2002). It requires that human rights abusers assume responsibility for their misdeeds by offering the kind of apology that leads to a dialogue between the offender and the victim. In doing so, restorative justice brings “victim, perpetrator and community together to determine what is needed to put right what is wrong” (Nagy 2002: 325).

Whether they favor retribution or reconciliation, transitional justice advocates are in agreement that the transition to democracy is the most appropriate time for nations to confront a difficult and painful past. The core message from what has been termed “the transitional justice culture” is that “the moment of transition is the golden opportunity to forge a new, democratic social contract, and that the new democratic future envisaged by that contract will be possible, and will last, only by using the law to confront and overcome the repressive and abusive past” (Golob 2008: 127). This view is underpinned not only by the obvious symbolic importance of the transition to democracy as a marker of a new political destiny but also by the realization that the transition could well be the only opportunity for confronting the past. “It’s now or never” is another ubiquitous phrase among transitional justice activists in making the case for attending to the past during the transition to democracy. Behind this popular claim is the worry that delaying or deferring justice can result in neglecting to confront the past by allowing other problems to crowd the political agenda (like fixing the economy or drafting a new constitution). There is also the fear that the passage of time can weaken societal resolve for justice by allowing time to claim the memory and lives of those most directly affected by the crimes of the old regime.

Transitional Justice and Its Critics

Both as a theory and as practice, transitional justice has invited a host of controversies. Among the most compelling critiques of transitional justice is the philosophical view that some crimes are so heinous and incomprehensible as to be beyond the capacity of the law to find ways to repair the damage they cause and/or to overcome the traumatic legacy they leave in their wake, an argument echoed in Hannah Arendt’s eloquent contention in The Human Condition (1958: 214) that “we are unable to forgive what we cannot punish and we are unable to punish what has turned out to be unforgivable.” Certainly, Arendt was not arguing against confronting evil deeds—far from it. Rather, she was warning about the limitations of man-made mechanisms to cope with such heinous crimes as genocide. As such, Arendt’s views on prosecuting human rights abusers stand at odds with the perception of transitional justice as a transformative force capable of bringing closure about a difficult and painful past.

Most criticisms of transitional justice, however, are more precise and tend to focus on one of the two models above for coming to terms with the past. Arguably, the most noted criticism of retribution is the potential danger of morphing into revenge, which in turn can make transitional justice the source of conflict and recrimination rather than peace and reconciliation. For this reason, many advocates of criminal prosecution for human rights abusers support the principle of “selective prosecution” when deciding whom to go after for punishment for the old regime’s crimes. Inaugurated with the Nuremberg Tribunal, and revived by the military trials in Argentina in the mid-1980s, selective prosecution aims at bringing justice to the individuals most directly responsible for the violence and abuses of the old regime (usually heads of state, high-level military officers, and directors of security and intelligence) rather than everyone involved in the repression of society.

Criticism of reconciliation has been more widespread, a reflection, perhaps, of the popularity of truth commissions. Some have decried the abrogation of justice entailed in the exchange of truth for amnesty that characterizes South Africa’s TRC, while others have lamented the conflation of religion and politics injected into the process of reconciliation, another legacy of the TRC. Crocker (2000: 6) has noted that Archbishop Tutu’s ideal of “social harmony” is not only “impractical” and “unrealistic” but also “morally objectionable,” because no truth commission or any other government body should “force people to agree about the past, forgive the sins committed against them, or love one another” (6). In voicing these concerns, Crocker implicitly advocates for the right of those on whom irreparable moral harm has been inflicted to withhold forgiveness and perhaps even harbor bitterness and resentment toward their abusers.

A more general criticism of reconciliation is that it is a very poor substitute for justice. By and large, this criticism reflects the structural nature of truth commissions. These bodies are generally defined as much for what they do—to establish the “official” truth about specific historic events—as for what they do not do (see Rotberg and Thompson 2000; Rosenberg 1996; Hayner 2001). Truth commissions usually lack the power to punish or prosecute human rights abusers; they also are seldom empowered to implement whatever recommendations are issued in the final report. The extent to which recommendations for reforms and reparations made by a truth commission make it into law is usually left to the discretion of the politicians, who often have little incentive to see them implemented since this often entails significant political risks. All of this has led many to downgrade expectations about what truth commissions can actually accomplish. Ignatieff (1996: 112) writes that, at most, truth commissions can be expected “to reduce the number of lies that can be circulated unchallenged in public discourse.”

Another criticism of reconciliation is whether the ambitious objective of creating a national narrative about the past that is supported by a broadly shared collective memory about historical events is of actual use to democracy. As observed by Müller (2002: 19), “In the end we may have to accept that contested, conflicting, and competing memories are an inevitable legacy of transitions to democracy. But that in itself might not be such a bad thing; after all, democracy itself is a form of contained conflict—and as long as memories remain contested, there will be no simple forgetting or repression tout court.” Müller adds (19) that “rather than aiming for some elusive social consensus in which one narrative of the past is enthroned, arguing about the past within democratic parameters and on the basis of what has been called an ‘economy of moral disagreement’ might itself be a means of fostering social cohesion.”

Truth commissions have also been criticized for the troubled conjoining of history and memory, as suggested most pointedly in the popular concept of “historical memory,” which falsely implies that history and memory are always comfortably aligned. Those responsible for compiling the final report of a truth commission generally base their findings on personal testimony rather than on rigorous historical research. The former is prone to manipulation and politicization, and, in any case, is highly subjective and notoriously fallible. This privileging of personal testimony over actual historical fact-finding generally reflects the desire of truth commissions to serve as a vehicle for victims’ voices to be heard and recorded for posterity. As argued by Jelin (2003: 54), articulating victims’ voices is an essential part of the reconciliation process since it works against the image of those abused by the old regime as “passive victims.” But for others, reliance of truth commissions on personal testimony poses the risk of memory replacing history, which in turn can lead to misrepresenting rather than representing the past. For Müller (2002: 19), “memory has turned into a secular religion, or at least an ‘ersatz metaphysics,’ which feeds on a new emotionalism, and gives rise to endless grievance claims couched in the language of personal memories.” A “soft-therapeutic concept of memory,” even a kind of “boundless mnemonic subjectivism,” takes the place of “traditional, hard historical approaches and truths.”

A harsher indictment of truth commissions is that an excessive emphasis on memorializing the past can effectively prevent countries from moving on. Augé (2004: 88) has theorized that humans, either as individuals or as a community, have a duty to remember as well as to forget: “Those who were subjected to it (a traumatic past), if they want to live again and not just survive, must be able to do their share of forgetting, become mindless, in the Pascalian sense, in order to find faith in the everyday again and mastery over their time.” Analogizing remembering to gardening, Augé contends that memories are like plants: “there are those that need to be quickly eliminated in order to help others burgeon, transform, flower.” In a similar vein, the political commentator David Rieff has decried the emergence in the transitional justice movement of a “memory fetish” that can create historical distortions that do little to bring about political reconciliation and can in fact help perpetuate discord and war, while praising the capacity of forgetting for allowing countries to move forward.¹³

A different type of critique of transitional justice comes from within the movement itself and calls attention to zero-sum arguments in which retribution is seen as preferable to reconciliation and vice versa, by arguing that no single model of transitional justice can deliver a successful coming to terms with the past; that this can only be secured through a combination of things. The ICTJ advocates a “holistic approach” to transitional justice, a proposal that incorporates not only criminal prosecution of the leaders of the old regime and a truth and reconciliation commission, but also reparation for the victims of human rights abuses, reformation of state institutions, such as the courts, the police, and the security apparatus, the erection of museums and memorials intended to “preserve public memory of victims and raise moral consciousness about the past abuse,” and even “gender justice,” defined as challenging “impunity for sexual-and gender-based violence” to ensure “women’s equal access to readdress of human rights violations.”¹⁴

A Case That Challenges the Rules

Spain, a case of almost complete noncompliance with transitional justice, significantly expands on the critique of transitional justice laid out already by highlighting several important challenges that so far have gone largely unnoticed. First among these is the assumption that coming to terms with the past, through retribution and/or reconciliation, is a prerequisite or precondition for successful democratization. This claim is implicitly stated in the bleak scenarios that have been painted for nations that neglect to dispense justice for the old regime—from undermining the consolidation of the rule of law by perpetuating a culture of impunity, to preventing society from moving forward, haunted by the memories of unaddressed collective traumas, to, worst of all, inviting the recurrence of evil. But there is little in the Spanish experience to support these contentions.

The de facto impunity institutionalized in Spain with the Pact of Forgetting has led some to criticize Spanish democracy for its “impure genesis” (Cardús i Ros 2000: 19), and to link the rise of the politics of forgetting to some of the most unsavory aspects of post-Francoist politics—like a penchant for secret bargaining among the political class, corruption of public officials, militarization of the police force, and even breaches of the rule of law, such as the creation of the Grupos Antiterroristas de Liberación (better known as GAL), the extrajudicial military force that battled Basque separatists during the 1980s (see Ballbé 1983; Buck 1998; Amnesty International 1985). But these claims do not detract from the overwhelming success of democracy in the post-Francoist era. Paradoxically, Spain is one of the most (if not the most) celebrated cases of democratic transition of recent times, with the case becoming something of an obligatory point of reference for democratization scholars. “Spain is a miracle,” marvels Przeworski (1991: 8), while positing Spain as a model for Latin America and post-communist Europe. Linz and Stepan (1996: 5) note that Spain is the paradigmatic example of “democratic consolidation,” understood to mean that juncture in politics when democracy becomes “the only game in town,” just as interwar Germany can be regarded as the paradigmatic example of “democratic breakdown.”

A second challenge to the transitional justice orthodoxy afforded by the case of Spain is the apparent but seldom recognized compatibility between forgetting and democratization. While the transitional justice scholarship sees forgetting as undermining democratization, the Spanish case suggests the very opposite. Interestingly enough, for much of the scholarship on contemporary Spanish politics, democracy consolidated in Spain not in spite of the fact that the past was put aside during the transition but rather because of it (see Share 1986; Di Palma 1990; Gunther 1992; Linz and Stepan 1996; Gunther, Montero, and Botella 2004; Gunther 2007; Encarnación 2008a). The decision not to delve into the past is credited with minimizing political uncertainly about the outcome of the democratic transition, helping integrate the political class around the project of democratic consolidation, especially those forces most likely to disrupt democratization, such as the military, and ending a vicious cycle of hate and recrimination that for centuries had kept stable democracy at bay. These positive by-products of the pact to forget suggest that forgetting and moving on can actually serve as a foundation for democratization.

Third, the Spanish experience pointedly questions the assumption that a legal or ethical treatment of the past during the transition to democracy is always possible and in the best interest of the process of democratization. Instead, Spain suggests that in some cases a political solution that abridges, circumvents, and delays justice against the old regime might be preferable. This hard truth gets us to the question of why forgetting flourished in Spain in the first place. In Spain, the question about what to do about the past was approached not as an ethical or legal challenge, as the transitional justice movement is prone to do, but rather as a political dilemma. This entailed doing what was possible rather than what was right. As seen next, conditions on the ground dictated this overtly political calculation, especially a sociopolitical environment that provided no room for questions about the past to emerge. On the one hand was societal resistance to any revisiting of the past; on the other was the political dynamics and legacy of a state-led democratic transition.

The Traumatic Past

The most popular explanations for the rise of forgetting in Spain all relate to how the traumas of the past affected the political mindset of the Spanish political elite and society at large around the time of the democratic transition. The best known among these “psycho-political” explanations is the theory of memoria traumática (traumatic memory), which stresses that during the transition the Spaniards willed themselves into political amnesia as a direct consequence of the collective traumas inflicted by the Civil War and the postwar period. In essence, this Freudian-inspired theory analogizes Spain to an individual afflicted with a severe case of Post-Traumatic Stress Disorder (PTSD), a condition whose symptoms include reexperiencing the original traumas through flashbacks or nightmares, and avoiding situations or potential situations associated with traumatic past events for fear that they may reoccur. Reams of studies in the Spanish psychological literature support the PTSD diagnosis (Ruiz-Vargas 2002; González Duro; 2003; Mínguez Villar 2004). A comprehensive review of this literature concludes that “the brutal repression imposed upon the losers of the Civil War not only impeded the possibility of overcoming the traumas of the war, it also added an abusive burden of suffering. The politics of terror and silence imposed by the dictatorship created an environment that engendered a veritable epidemic of post-traumatic stress” (Ruiz-Vargas 2006: 1).

Fears about repeating the past, specifically falling back into civil war and dictatorship, were induced not only by the memory of the past but also by how the past had been manipulated by the Franco regime. According to Aguilar (2002: 25), “Francoism instilled a ferocious, obsessive, and omnipresent fear of any repetition of the Civil War,” from which arose a national consensus on nunca más (never again), a phrase meant to convey that Spain would go to any length to avoid becoming embroiled in a similar conflict. A corollary of the nunca más discourse promoted by the Franco regime was the deliberate association of democracy with anarchy and divisiveness and of dictatorship with peace and prosperity. The intention was to legitimize Franco’s contention of having saved Spain from chaos and destruction, a founding myth of the dictatorship, while planting doubts in the public’s mind about the country’s capacity to comport itself under democracy.

Further exacerbating fears about repeating the past was the political violence surrounding the transition. Although the Spanish transition is remembered for a proliferation of elite pacts, like the pact to forget, political violence was quite characteristic of the era. In fact, Spain witnessed more acts of political violence and terror during the transition to democracy than any other nation in Southern Europe or South America, including “revolutionary” Portugal. Especially notable in affecting the collective psyche of the Spanish public was a wave of political assassinations—more than 200 between 1979–1980, most of them perpetrated by Euskadi Ta Askatasuna (ETA, the armed branch of the Basque separatist movement), which eerily resembled the one that preceded the advent of the Civil War. Understandably, as will be seen later, public opinion in Spain for much of the post-transition period suggests that the public has been more concerned with order and stability than with justice and accountability, and regarded the latter as a threat to the former.

Another popular psychopolitical explanation for forgetting revolves around how the general public constructed its memory of the Civil War and its consequences and how this “collective memory” worked to dissuade confronting the past and actually actively encourage a culture of political forgetfulness. A central feature of the public memory of the Civil War during the transition to democracy was the notion of “collective culpability,” which argued, in a nutshell, that both sides of the conflict were equally guilty. Aguilar (2002) has compellingly argued that while at the inception of democracy Spaniards could not agree on the causes of the Civil War, they shared an understanding of the war as a national tragedy, and more specifically as a guerra fraticida (fratricidal war), a conflict between brothers that had torn the nation apart and for which everyone bore equal blame. This problematic view of the Civil War—it overlooks Franco’s violent military coup in 1936 and the fact that the Nationalist side committed the bulk of the killings, to say nothing of the postwar repression imposed by Franco—made revisiting the Civil War during the transition seem redundant and even counterproductive.

The notion of collective culpability was given considerable credibility after it was embraced by the democratic opposition to the Franco regime to justify its acceptance of the politics of forgetting. Around the time of the transition, leading left-wing leaders promoted the idea that the Civil War was best understood not as a result of Franco’s assault on a popularly elected government or of the ideological struggles of the era, but rather as un error histórico (a historical error) that grew from an act of collective madness that produced no winners or losers, only victims. As seen later, although the left nowadays no longer subscribes to the idea of collective culpability—in fact, it generally deems it a myth—the idea remains central to the opposition of many Spaniards, especially but not exclusively those of a right-wing persuasion, to any revisiting of the past, including a truth commission.

Yet another psychopolitical school of thought regards forgetting as a necessity for moving forward, and more concretely as an imperative for constructing a tabula rasa on which to build a democratic future. This argument, which applies most directly to the behavior of the political class during the transition, echoes what Nietzsche (1983: 62) referred to as “active forgetting,” which he defined not as a simple failure of memory but rather as a concerted effort to repress the memory of selective events from the past in order to envision possible futures. More specifically, for Nietzsche (61), active forgetting entailed purging the mind of those traumatic events that are likely to “return like a ghost and disturb the calm of a later moment.” Santos Juliá—Spain’s leading intellectual historian, who has vigorously defended the decision of the political elites to set the past aside during the transition against the criticism that this amounted to an act of wanton disregard for history and truth-telling—is most closely associated with this line of thinking.

According to Juliá (2003), forging a democratic project in Spain hinged on the capacity of the political class to echar el pasado al olvido (cast the past into oblivion) by enacting the 1977 amnesty law. Yet this action did not mean the politicians were condemning Spain to political amnesia. Amnesia, Juliá argues, implies involuntary loss of memory; amnesty indicates a decision to forget the past, arrived at after deliberate consideration of that past. Therefore, in defending forgetting Juliá has characterized as “grotesque” the idea that in the post-transition period Spain has lived under “a pact of silence” and that the history of the Civil War and the Franco dictatorship has been turned into a taboo.¹⁵ Juliá has also criticized memory activists, such as the Association for the Recuperation of the Historical Memory, for failing to recognize that even before the transition all the political forces had come to the realization that a general amnesty was indispensable for getting democracy off the ground, and for failing to appreciate that amnesty was essential for creating the democracy that today allows society to press demands for remembering the past.¹⁶

Last but not least is the provocative notion that political forgetting in Spain is rooted in the country, especially the political elite, having emerged from dictatorship with pointed lessons about past political mistakes and ready to apply these lessons to the present. This view draws heavily upon the theory of “political learning,” which sustains that “all people, followers and leaders alike, are capable of learning from experience, and political actors rarely weather economic depressions, internal wars, or the violent collapse of a form of government unchanged” (Bermeo 1992: 274). The most talked-about lesson that the politicians drew from history as they undertook to democratize Spain in 1977 was that too much bickering and too little compromising aborted the previous attempt at democratization during the interwar Second Republic. Thus, a pact to forget was embraced by both left and right as an insurance policy against a similar outcome. According to García Cárcel, the agreement to “disremember recent history,” embodied an agreement of “prudence” and “auto-controls” about the perils of looking backwards arising from an obsession with “historical failure.”¹⁷

A less self-evident historical lesson was that Spain had indulged in revenge and retaliation in handling the sins of the old regime in previous instances of regime transition. Therefore, when confronted with the conundrum of what to do about Franco’s political crimes, an effort was made to correct past excesses of transitional justice. It is notable, as Aguilar (2001: 98) points out, that the democracy established in 1977 is the only political regime in the twentieth century in Spain “that has not called prior regime leaders to account.” The Second Republic held the leaders of the Primo de Rivera dictatorship (1923–1930) accountable, as did Franco, with the leadership of the Republic, and as did General Miguel Primo de Rivera’s regime with the Restoration regime (1874–1931). Especially notable is the retribution policy implemented by the Republicans in 1931, which ended both the Restoration period and the Primo de Rivera dictatorship. The Republicans denied amnesty to the leaders of the Primo de Rivera dictatorship, forced the abdication of King Alfonso XIII, charged him with high treason, and created a commission to establish political responsibilities (as a prelude to future trials) that even some Republicans criticized as “too harsh” (Payne 1993: 40–42).

Not surprisingly, the psychopolitical explanations highlighted above are suggestively echoed, whether directly or indirectly, by the rationalizations offered by the politicians for their decision to forgo justice toward the Franco regime. Virtually all the major political figures of the transition stressed the need to avoid abrir viejas heridas (opening old wounds), a surgical metaphor intended to convey both the pain and the danger of engaging in any revising of the past and the benefit of forgetting and moving on in securing both democracy and peace. No other occasion proved itself more adequate for making these justifications than the parliamentary debate that led to the enacting of the 1977 amnesty law, the legal-institutional backbone of the Pact of Forgetting. Politicians of every political stripe made the point that forgetting was the only way to break the cycle of violence, war, and recrimination that for centuries had defined Spanish politics and to consolidate peace. One of the most moving speeches was that of labor leader Marcelino Camacho, who, speaking on behalf of the Spanish Communist Party, observed (Aguilar 2002: 196):

How could those of us who had been killing each other have made the peace if we had not erased the past once and for all? For us, in the same way as in the settlement of the injustices committed over these forty years of dictatorship, amnesty is a national and democratic policy, the sole measure which might close that chapter of civil wars and crusades. We, that is to say, the Communists, who have suffered so many outrages, have buried our dead and our resentments.

Nor it is surprising that the politicians’ justifications for overturning the Pact of Forgetting in 2007 were couched in terms of the nation having finally overcome the traumas of the past due to thirty years of peaceful democratic co-existence. As Carlos García de Andoin, federal coordinator of the Roman Catholic wing of the Spanish Socialist Party, noted before the vote that enacted the 2007 Law of Historical Memory, “During the transition remembering the past meant re-opening divisions that we were not ready to deal with. The era was delicate and we needed to concentrate on reconciliation and leaving the past behind. Thirty years later things are very different, remembering no longer threatens the stability of the democratic system.”¹⁸

Those who today champion a more truthful and ethical treatment of the past have expressed similar sentiments. Carlos Castresana, the lead prosecutor in the Pinochet case, and today an internationally renowned human rights lawyer, noted around the time of the parliamentary debate about the Law of Historical Memory:¹⁹

The years of democratic transition were spent in a permanent state of anguished necessity of having to choose the least bad of bad options, which culminated in the untruthful process that gave us back our freedom. But is has been a while since that situation of emergency has been overcome. The prosperous democracy of today is sufficiently mature to handle the truth, in spite of those who deny this with their words and deeds. Our silence today is no longer mandatory, as it was during the transition. The truth about the past is the compensation that we owe those who made the miracle of our transition possible with the sacrifice of their silence.

The Nature of the Transition

A second driving force behind the rise of forgetting in Spain was the nature of the transition, a far less studied factor and arguably a more compelling one than the traumatic past. For one thing, psychoanalytical explanations derived from the traumatic past cannot explain why, after fears about the past had vanished from the public consciousness with the consolidation of democracy by the early 1980s, both the government and the general public remained firmly wedded to forgetting. Ironically, the heady days of forgetting came not when public opinion showed Spaniards to be most fearful about the future (the earliest years of democratic transition, between Franco’s death in 1975 and the enactment of a new democratic constitution in 1978), but during the long reign of the Spanish Socialist Party during the 1980s and 1990s, when unprecedented political stability and economic prosperity prevailed.

Several aspects of the democratic transition of great consequence to how matters about the past were handled in Spain are highlighted in this study, the first being the limitations on political justice imposed by a transition to democracy born in the very structures of the authoritarian regime. Unlike other transitions to democracy that preceded it in Southern Europe (Greece and Portugal), and subsequent ones in Latin America and the post-communist world, the authoritarian regime in Spain was not defeated or humiliated in a foreign war, toppled from power by its foes in civil society, or brought to its knees by economic failure or external pressure. Instead, Spain’s authoritarian regime was gradually transformed into a democracy from the inside out by reformers operating within the authoritarian government, including, ironically enough, Franco’s hand-picked successor, King Juan Carlos, and relying on the authoritarian regime’s own legal and political institutions, many of which survived the transition to democracy virtually intact (see Carr and Fusi 1981; Maravall 1981; Malefakis 1982; Gunther 1992).

The ramifications of the democratic self-reformation of the authoritarian regime for the disposition of the past after Franco’s passing were significant. Implicit in the left’s acceptance of a democratic transition orchestrated by the authoritarian regime and assisted by existing legal and political frameworks was willingness to forgo retribution against the old regime. This exchange of “amnesty for democracy” was introduced with the 1976 Law of Political Reform, enacted by the Francoist parliament (without representation from the opposition), which simultaneously ended the authoritarian regime and put the country on the path toward democracy by legalizing political parties and independent trade unions and scheduling free elections, Spain’s first in four decades. Predictably, the law had nothing to say on the issue of political justice against the old regime. Amnesty for the old regime was institutionalized with a law by the new democratic parliament in 1977. The timing of this law in Spain is significant because, unlike other cases, it meant that amnesty was enacted not by the outgoing authoritarian regime but by its democratic successor.

A second focus of our analysis is the ethos of political consensus that permeated the transition to democracy and that accounts for Spain’s reputation as the paradigmatic example of a “pacted,” “brokered,” and “negotiated” transition (Share 1986; Linz and Stepan 1996; Gunther 2007; Encarnación 2008a). Numerous factors underscored elite consensus during the transition, starting with the urgent need for intra-elite collaboration in order to confront all the intractable problems that over the course of centuries had made democracy an uphill struggle—from finding a constitutional role for the monarchy, to meeting the Catholic Church’s demands for some kind of public function in the polity, to accommodating demands for self-governance from nationalist-separatist regions. The latter was especially taxing; after all, granting limited autonomy to the Basques and Catalans was a leading cause behind Franco’s uprising against the Second Republic in 1936, by projecting the sense that Spain was coming apart at the seams. Regional autonomy was even more explosive an issue during and after the democratic transition since Franco’s repression of Spanish ethnic minorities had engendered a separatist, terrorist movement in the Basque Country anchored around ETA that was determined to engage the state in a prolonged armed conflict with the goal of establishing an independent Basque state.

But the main inducement for consensus may well have been the desire of the political class to make the democratic transition an unambiguous marker between “old” and “new” Spain, with the old representing anything associated with pre-transition Spain and the new focused on democracy and Europe. This desire for remaking Spanish political identity was most intense within the left, which explains why the politics of forgetting flourished not during the transition during the late 1970s (when Spain was ruled by a center-right government led by former Francoist leaders who had every reason to fear any process of transitional justice), but rather under socialist rule during the 1980s and 1990s. During those years, the socialist administration endeavored to reimagine Spain as a modern, forward-looking European nation. The pact to forget aided this dual project of modernization and Europeanization by obscuring the things that for decades had set Spain apart from the rest of Europe, especially the Civil War and the Franco dictatorship, and by encouraging a forward-looking culture that did not appreciate remembrances of the past, especially things in Spanish history—like the Civil War and the Franco dictatorship—that stood in the way of Spaniards’ perception of themselves as Europeans.

The Organization of the Study

The rest of this book is organized as follows. Chapter 1 provides an overview of the Pact of Forgetting that stresses what the pact stood for, how it was made to operate, and what historical events it sought to obscure from the public memory. Chapter 2 revisits the years of democratic transition (1975–1981) for the purpose of illustrating how the transition to democracy conditioned the rise of the Pact of Forgetting by limiting the capacity of the democratic opposition to make justice demands against the old regime and by enhancing the ethos of consensus born with the transition. Chapter 3 examines the endurance of the Pact of Forgetting under the socialist administration of Prime Minister Felipe González (1982–1996), which implemented the policy of desmemoria (disremembering) to modernize political institutions and reinvent national identity.

Chapter 4 looks at the puzzling absence of civil society opposition to the rise of the Pact of Forgetting throughout the transition and consolidation of the new democratic regime, a discussion that emphasizes both societal complicity with the political class and the legacy of the transition. Chapter 5 explores the birth of the movement for the recuperation of the historical memory, an unintended consequence of General Pinochet’s arrest in London in 1998 on orders from Spain. Chapter 6 discusses the enactment of the 2007 Law of Historical Memory, a dramatic reversal of a three-decade-old commitment to forgetting the past led by a new generation of left-wing leaders not politically socialized in the struggle against Francoism and not beholden to the political compromises of the democratic transition.

Chapter 7 mines the Spanish experience with coping with the past, together with comparative evidence from other democratizing states in Latin America and post-communist Europe, for lessons about scholarly debates on transitional justice and democratization. Much of the discussion emphasizes the need to adopt a more nuanced and pragmatic 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.