Janusâ Third Face?: The Spanish Constitutional Court at the Crossroads of History

Ãngel Aday JimÃ©nez AlemÃ¡n

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Chapter 6 Janusâ Third Face?

The Spanish Constitutional Court at the Crossroads of History

In: Comparative Constitutional History

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Ãngel Aday JimÃ©nez AlemÃ¡n

Ãngel Aday JimÃ©nez AlemÃ¡n
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Type:: Chapter

Pages:: 219â248

DOI:: https://doi.org/10.1163/9789004523739_008

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Abstract

This chapter analyses how the Spanish Constitutional Court has used history and how the Court has responded when confronted with history. The chapter shows that, paradoxically, the Constitutional Court does not hesitate to use history to support its interpretations of the Spanish Constitution, but it fights to maintain complete neutrality when ruling on historical events. The chapter begins by briefly reviewing legal and constitutional interpretation in Spain and the long and intense tradition of upholding the principle of freedom of interpretation. The chapter then analyses the two sides of the historical method used by the Constitutional Court: the figure of the historical legislator and recourse to the constituent process. As the chapter shows, despite their limited value, appeals to these two interpretative instruments within constitutional doctrine are widespread. The chapter next turns to examine cases in which the Court has been called upon to prosecute historical events related to the Spanish Civil War and the Holocaust. The chapter concludes that the Court has recognised the guiding value of the historical method while clarifying that the constitutionality of a rule does not depend on its history. In addition, the Court has insisted on its duty to refrain from making value judgments about historical facts in its rulings.

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Comparative Constitutional History

Volume Two: Uses of History in Constitutional Adjudication

Series:Â History of European Political and Constitutional Thought, Volume: 10

Cover Comparative Constitutional History

E-Book ISBN:: 9789004523739

Publisher:: Brill

Print Publication Date:: 25 Nov 2022

Subjects

Front Matter

Part 1 Framing the Problem

Part 2 Historical Precedents and Inter-constitutional Interpretation

Part 3 A Matter of Narratives

Part 4 New Democracies and Illiberal Regimes

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Chapter 6 Janusâ Third Face?

The Spanish Constitutional Court at the Crossroads of History

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Comparative Constitutional History

Volume Two: Uses of History in Constitutional Adjudication

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Chapter 6 Janusâ Third Face?