POLITICAL AUTONOMY IN SPAIN. A REPUBLICAN SOLUTION

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IL POLITICO

Rivista Italiana Di Scienze Politiche

marzo de 1977

POLITICAL AUTONOMY IN SPAIN

A REPUBLICAN SOLUTION

 

 

 

 

 

I. When a country is about to enter a period of constitutional change, it is only logical and desirable that its scholars have recourse to the study of Comparative Constitutional Law. For without necessarily forsaking the realities of their own country — they may also find in foreign legal systems such institutions as to be included with success in the new basic laws that are being framed. This means, among other things, that the attitudes are not to be taken seriously of those that, as a matter of principle, are always ready to criticize any institution whose origins can be traced back to foreign legal systems.

This, which can be said about foreign Comparative Law, is all the more valid if we take a Historic Comparative approach of the Law of one’s own country. Thus, although the latter will be chronologically separated from present times, it is nonetheless nearer in another sense; because it has constituted a previous stage in the historical process to which any country is submitted.

On the other hand, this does not mean that the new texts cannot have an innovating character; for, as far as the structures of State power are concerned, for instance, they should be based on the principle of relativity rather than on that of the absolute. They do not necessarily have to follow a historic model; on the contrary, they should be founded on empiricism rather than on apriorism (1). As Ch. Durand would say, positive law does not always have to be of a geometric nature; in any case, positive results should have the primacy over theoretic elaborations. Otherwise, the danger exists of abstract constructions being made — either because they are rationally homogeneous or because they try to embody all the features that have historically characterized a given « form of State » — but which do not adjust to reality. Actually, difficulties begin to arise when this reality is forced to adapt to a historic model (2).

At this point, this author intends to bring to a head now the Spanish Republican Constitution of 1931, for a double reason: a) The « innovating » character it had in its days, and b) at the same time because of the value it could have in the coming years — in as much as the Spanish reality has not essentially changed in respect to the 1930s — as an already built model of a would-be solution to the question of peripheral nationalisms. Although often inspired in foreign constitutional systems, it also presented features which were fully original, such as: the division of powers between the central government and the constituent governments, and above all, the idea of the regional will as the origin of political autonomy.

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