The legal foundations of the Francoist regime

Manin Iaroslav V. ORCID: 0009-0008-2214-8686 PhD in Law Associate Professor; Presidential Academy; Higher School of Economics 82 Vernadsky Ave., office building 2, Moscow, 119571, Russia manin-yv@ranepa.ru Other publications by this author

Burenko Konstantin Andreevich ORCID: 0009-0004-2402-0927 Independent researcher 76 Vernadsky Ave., Moscow, 119454, Russia byre5002@gmail.com

Authoritarian regimes ^[1] have occurred in various eras around the world, Spain was no exception: ^[2] in this state, the monarchical form of government had a special content. ^[3] The sovereign was represented by a ruler who actually possessed unlimited power, but de jure relied on the constitutional foundations of the relevant political regime contained in seven normative legal acts of the Spanish state (1936-1947), and later the Kingdom of Spain. (1947 – 1975) ^[4],[5]. A study of these documents, outlined below, allows us to assert that the regime of Francisco Franco relied on forced labor and pseudo-democratic institutions: the legislative advisory body, the institute of popular vote, and others. ^[6] About these seven "pillars" of the Spanish political regime in 1936 – 1975 ^[7] – the Spanish laws legalizing the power of Francocod Paulino Ermenehildo Teodulo Franco Baamonde, ^[8] as the legal foundations of his rule, a study presented to the reader. ^{[9] [10]}

The authors of the article used dialectical, logical, historical, formal legal, deduction, induction, analysis, synthesis, modeling and other methods of cognition. The scientific novelty of the presented work lies in the originality of the presented text, based on the analysis of Spanish normative legal acts, conclusions and the work itself, which contains fundamentally new information on the subject of research.

The study of the topic of the article is insignificant, the general theoretical basis of the scientific work was formed by the positions of O.S. Makarova, who formulated the signs of totalitarianism, as well as M.V. Nagalina, who developed the theory of democracy. Other researchers, for example, P.S. Antonenko, N.A. Anikeeva, Yu.V. Vasilenko, D.A. Krelenko, O.N. Lobanova, A.A. Orlov, M.A. Petrov, M.H. Posas, and so on, have developed the concept of Spanish authoritarianism. In addition, the contribution of foreign scientists to the study of F.'s dictatorship should be noted. Franco: V. Booher, Z. Dujisin, W. Ikeda, D. Melo, G. Ruiz, S. Sanchez, R. Teixeira, V. Sampedro Ramo, C. Taracha, P. Fuente, S. Wildeboer.

The Francoist political regime had as its legal foundations seven normative legal acts – Spanish laws, adopted in the process of the formation of this system of state power, characterized by the fragmentation of constitutional norms, their vagueness and incompleteness, the absence of a constitution as such. ^[11] This contributed to the abuse of law by the executive branch, which placed the courts and the legislature under its control in the context of the uncontrolled exercise of state powers by an authoritarian leader. The constitutional legislation of Spain was reduced to the level of separate normative legal acts, some of which were proclaimed as equal in status to the basic law of the state, but did not become such. ^[12] The legal fiction made it possible to formalize the authoritarian regime with the help of democratic institutions. ^[13]

The Charter of Labor of March 9, 1938

(Fuero del Trabajo) ^[14]

The Charter regulated labor relations, however, it was the first key act that established the legal foundations of the Franco regime. The preamble referred to the fact that this act was adopted in emergency wartime conditions, which explained the need to establish an undemocratic regime in Spain. It was about giving public interests and principles a dominant role in labor law, which is more a branch of private law than public law; it has both private and public principles that relate differently in different jurisdictions and different historical conditions, respectively. Here, in Francoist Spain, the principles of liberal democracy and Marxist materialism were rejected, Catholicism was declared one of the pillars of the Francoist state, and it was even affirmed that the state was a "totalitarian instrument protecting the integrity of the Motherland," thus the right declared the totalitarian nature of the political regime in Spain and set it an appropriate vector of development - publicly -the legal one that defined the basis of the nature of labor law. ^[15]

Labor has received the status of both rights and duties. Every Spaniard, except the crippled, carried this social obligation. However, the forms of implementation of this duty were left to the discretion of the subjects of labor law themselves, such implementation was allowed within the limits permitted by law, and the work itself was carried out for the benefit of human development and the national economy. ^[16] The state defended the right of Spaniards to work, supporting the workers in every possible way. This led to the provision of social guarantees to workers and employees. They were granted the right to annual paid leave and limited working hours. The institutions of family and religion were separately protected: religious holidays were established as non-working days, and married women were freed from work in the workshop and factory. The remuneration for the work should have been sufficient for decent household management. ^[17]

Based on the Charter, capital was an instrument of production, and the enterprise was the basic unit of the economy. Lending was allowed on non-insurable terms. A social insurance system was also guaranteed to provide for the disabled, pensioners, mothers, the internally unemployed and representatives of other socially vulnerable groups of the population. National production had to be carried out in the interests of the nation. From now on, undermining the production process has been declared a criminal act. The act in question adhered to the principle of public punishment for labor offenses, implying the responsibility of subjects of labor relations to the state and the nation, and not to each other, which was a manifestation of a departure from private law principles in labor law. On the other hand, the State was prohibited from carrying out entrepreneurial activities without special need, and private property and private initiative were recognized and protected. The family's property was separately protected: she was not subject to arrest, and the family itself was endowed with inalienable rights that stood above any written law. ^[18]

The Charter of Labor, the foundation of the Franco regime's labor law, enshrined national syndicalism based on the principles of unity, totalitarianism and hierarchy (stratification of society). All workers and employees were united in syndicates, including those in the liberal professions. The syndicate had a hierarchical structure with the state as its head, and the leading positions in it could only be held by members of the ruling party, the Spanish Traditionalist Phalanx of Unions of the National Syndicalist Offensive. The state was obliged to conduct its economic policy through syndicates, in exchange for which they pledged to act for the benefit of him and the Nation. Syndicates have been granted the right to create social and professional institutions that go far beyond the role of simple production of goods and services. The Charter required the adoption of a law on syndicates in order to specify the legal status of these subjects of law in Francoist Spain. In the conclusion of the law in question, it was noted that the state would protect Spanish workers inside and outside the country, and employment for young participants in the civil war on the side of nationalist forces was separately guaranteed.^[19]

Thus, the studied document launched the process of forming a legal system that served the political regime. It is no coincidence that the first fundamental law was a regulatory legal act related to the field of labor law. This fact shows that the Franco regime was initially determined to oppose the construction of a rule-of-law state in Spain, since public law interference in the branch of private law was directly demonstrated, and the branch of labor law itself became part of public state (constitutional) law. For the Franco regime, labor relations were not private legal relations between employees and employers: labor was primarily supposed to serve the interests of the state and national ideology, and only then was private property allowed to be protected, which was a pillar of corporatism. Corporatism represented the close interaction of the business class with the state, while the former were the reliable support of the latter, which was established by the Charter of Labor through syndicates. The Spanish state involved private property in economic turnover under the pretext of supporting entrepreneurship, creating the illusion of a market-based economy used for the gradual nationalization of entrepreneurial activity. Entrepreneurs were motivated to work at the expense of their own production facilities, which were not leased from the state and amortized at the expense of their owner.

Thus, the relatively free labor of entrepreneurs was allowed in a private household operated by a dictatorial regime based on a private owner. Expropriation of this property and business would lead to a reaction from the economically efficient population and undermine the stability of the Francisco Franco regime. The inclusion of private capital in the production of goods and services created, with universal labor service, a separate social stratum, a privileged part of society that was interested in supporting the established political regime due to the regalia provided and the opportunity to receive income from entrepreneurial activities without having labor obligations (without performing labor service).

The Law on the Establishment of the Spanish Cortes of July 17, 1942

(Ley de creación de las Cortes Españolas) ^[20]

The law was passed because of the expected Allied victory in World War II, which put Franco in front of the need to simulate the functioning of democratic institutions in Spain. However, according to the law, the Cortes were not a legislative body, their role was limited to legislative functions without prejudice to the powers of the head of state. The second article established a list of persons who were ex officio procurators (members of the Cortes). Among them were ministers, the Chairman of the Supreme Court, the chairmen of national syndicates and a number of others. Some persons were elected to the Cortes by municipalities, boards of state bodies and other organizations that, according to this law, had representation in the Cortes. The head of state, at his own discretion, could appoint persons to the Cortes who had special services to Spain.

If the procurator was ex officio, he lost his mandate in the Cortes upon termination of the relevant position. The head of State could at any time revoke the mandate of the procurators appointed by him. The remaining persons were elected for a three-year term with the right to re-election, provided that they remain members of the organization that nominated them to the Cortes. The Head of State formed the leadership of the Cortes, which included the Chairman of the Cortes, the Vice-Chairman of the Cortes and the secretaries of the Cortes.

The candidate for the procurator's office had to be an adult Spaniard who was not affected by political rights. The principle of the inviolability of the procurators was established, their detention was allowed only with the approval of the chairman of the Cortes or if the procurator was caught in the act of committing a crime. In the second case, the fact of the prosecutor's detention was reported to the Chairman of the Cortes.

Chairman Cortesov formed commissions for the plenary sessions, supervised their work, and also organized the plenary sessions, that is, determined their program. The plenary session was convened to discuss draft laws, as well as at the discretion of the Chairman of the Cortes, with the consent of the Government.

The tenth article listed a list of issues on which the adoption of laws was necessarily accompanied by consultations with the Cortes. It is quite large, but the effect of this rule of law was significantly reduced due to the Cortes' lack of the right to prohibit the adoption of the law, since this authority fully belonged to the head of state.

It was further stated that the laws were submitted to the plenary session by the commissions. According to the twelfth article, the commissions had the residual powers of the Cortes, which did not concern the discussion of the laws listed in the tenth article. In times of war or emergency, the Government could regulate matters under the jurisdiction of the Cortes by decree (articles 10 and 12).

Similarly, on the basis of simple hearings, the Cortes participated in the process of ratifying international treaties, legally unable to influence this process.

The Chairman of the Cortes sent the law to the Head of State after its discussion, and the head of State was authorized to return it to the Cortes for further discussion. The law established that, in agreement with the Government, the Cortes had to develop their own regulations.

Thus, the law did not establish a full-fledged and independent legislative body in Spain. The body issued for him was a law-making body, directly subordinate to the executive branch represented by the Government and the head of state. Also, the formation of Cortes was completely under the control of the executive branch of government, and even the municipal procurators were directed by the executive branch of municipalities. The population was completely excluded from the process of forming Cortes, and the electoral order was used not as an instrument of direct democracy, but as an instrument for nominating a candidate from a government body or corporation under their leadership. ^[21]

The Cortes were used to ensure the stability of power and protect those to whom it was delegated and those who usurped power. The status of a member of this state body provided special privileges to those who ensured the position of Francisco Franco. The procurators were the mainstay of the head of state, his confidants who supported the dictator's authority. The Cortes represented a political rather than a legal state institution. They created the illusion of deliberative, collegial decision-making, with absolute unity of command. The head of the Spanish state, like the Pharaoh, was embodied in the procurators, who personified the avtokrator.

The Spanish Charter of July 17, 1945

(Fuero de los Españoles) ^[22]

The document was adopted on the eve of the Potsdam Conference in order to support the imitation of the democratic nature of the Spanish legal system and the recognition of the principle of the rule of law in this country. ^[23]

He established the personal rights of Spaniards, as well as their duties. Political rights were minimally affected in it: only freedom of speech was secured, provided that there were no encroachments on the foundations of the state system. In addition, all the rights specified in the law affected only Spanish citizens, foreigners and stateless persons did not enjoy similar protection.

The preamble to the Charter proclaimed that this document was drafted by the Cortes, but this is an incorrect judgment, since the Cortes could only discuss bills without having legislative capacity on their own. The will to adopt this law came from the executive branch, as well as other legislative acts of Francoist Spain. This document established the following duties of Spaniards: service to the Motherland, loyalty to the head of state and obedience to the laws, defense of the Fatherland with weapons in their hands, engaging in public activities, supporting children by their parents, raising children by their parents and ensuring that they receive education, and receiving education. The existence of these duties was aimed at ensuring the activities of Spaniards in the interests of the state and the family.

A significant number of personal rights were proclaimed. Equal rights for Spaniards were established, regardless of their class and personal status. The right to privacy of correspondence, protection of honor, freedom of movement within the country, the right to legal security, inviolability of the home, limitation of the period of detention and a number of others were established. Social rights were also established: to work, social security, private property, and decent pay, continuing the norms of the Labor Charter of March 9, 1938. Deprivation of citizenship was generally prohibited, but it was allowed when a Spaniard committed treason or entered state civil or military service in a foreign country. The rights of Spaniards established by articles 12, 13, 14, 15, 16 and 18 could have been restricted through a government decree, a law that defined the limits of restrictions and their duration.

The state established Catholicism as the state religion and even banned all demonstrations except those conducted by this church, thus Francoism officially consolidated Spain as a clerical state. The Charter prohibited the use of retroactive force of criminal law, and also confirmed that a conviction for a crime is possible only by a court verdict. Citizens were not allowed to be detained without a proper reason, and the detention itself could not exceed 72 hours, after which the citizen had to be either released or handed over to a judicial authority.

Based on the above, in Spain in 1945, a document was adopted that approved the basic rights and obligations of Spaniards. However, this document did not fully reflect all the rights and freedoms, and a number of them (political) were not granted to Spaniards. In addition, the existing rights and freedoms are also not fully reflected, to a large extent they are described in general terms. The law also contains the obligation to obey the head of state personally, which indicates the undemocratic nature of the state system, since thus the source of power in the state is recognized as a lifelong and unaccountable head of state, and not the people, who exercise their powers directly or through their representatives.

The Charter consolidated the personal power of Francisco Franco, as well as declared the basic rights and freedoms of Spaniards, consolidated their actual lack of freedom, completing the registration of class inequality. The ruling class received privileges, while the rest secured some personal rights that somewhat limited arbitrariness, which was necessary to replace legislative regulation in various areas of government with regulatory legal acts of the executive branch, which essentially replaced the legislative branch. The system of separation of powers was nominal. In fact, the head of state was the legislator.

The Law on the National Referendum of October 22, 1945

(Ley del Referéndum Nacional) ^[24]

The adoption of this law fits into the tendency of the Francisco Franco regime to externally imitate democratic institutions at the legal level. A referendum is one of the key instruments of direct democracy, and no country calling itself a democracy can avoid having the institution of a referendum in its legal system.

This law introduced a new formal element of the democratic regime in Spain, namely a national referendum. The preamble of this law stated that all Spaniards were given the opportunity to promote public affairs through natural families, municipalities and trade unions, and basic laws were passed to protect the nation from "deviations", giving more powers to representative bodies, that is, the opportunity for citizens to participate in government. The State religion was re-registered through the provision that representative bodies operated within the framework of the system of Christian associations. The law declared that the subjective will of the rulers could displace the will of the nation, and therefore the institution of a national referendum was introduced, which, based on this law, was supposed to prevent the occurrence of such situations. A referendum was appointed by the head of state on the adoption of bills that had been discussed in the Cortes, if they were particularly important, or if public interests required a referendum. Such a referendum should have been held among all Spaniards over the age of 21, regardless of gender. The law also stated that the Government was authorized to issue additional orders for conducting a population census and implementing this law. This was the end of the provisions of this law, in addition to the preamble, it contained only three articles with one sentence each.

The small scope of the law created a situation in which the institution of a referendum was not sufficiently developed. The law itself established a vague wording describing the basis for holding a referendum, and gave the regulation of the institution of a referendum to the executive branch at a subordinate level. As a result, the principle of separation of powers was violated, because this institution was implemented entirely administratively by the executive branch, that is, by the head of state and the government completely under his control. Under the conditions of the authoritarian regime, the executive branch reduced the institution of a referendum to a meaningless bureaucratic procedure from the point of view of expressing the people's will, used by the authorities only in their political interests. The Franco government was not aimed at allowing a real popular initiative in holding a referendum, as a result of which the people were deprived of the opportunity to initiate a referendum, and the law established this as the exclusive authority of the head of state. Thus, the legal meaning of the referendum procedure was lost, which carried the expression of the will of the people, which was impossible here. The people could not determine the issues to be put to a referendum. In addition, there were problems with the results of the referendum. The counting of votes in the authoritarian regime was carried out biasively, numerous violations were committed, and administrative resources were widely used. In the end, the referendum in Francoist Spain had the result that was planned by the executive branch and satisfied its interests. ^[25]

The institution of a referendum in the Francoist regime did not carry any special legal significance. This was only an external form of giving legal force to pre-prepared decisions of the executive branch, and the referendum procedure itself could not influence the final adoption or rejection of such decisions, it pursued other goals that lay in the political rather than the legal plane.

However, this law is interesting, among other things, because its preamble directly indicated the fact of the promulgation of the basic laws. These laws referred to the three previous laws discussed in this article above. Consequently, since the adoption of the fourth Fundamental Law of the Kingdom, the Francoist legal system has begun to recognize the existence of this concept of constitutionalism, within which not one basic law, but several constitutional acts operated.

The referendum was a tool for legitimizing the norms of law in form, without giving them legitimacy in essence. It was necessary to substantiate the legality of Francisco Franco's rule, as well as the applied legal structure of power, and to relieve social tension.

The Law on the Succession of the Leadership of the State of July 27, 1947

(Ley de Sucesión en la Jefatura del Estado) ^[26]

This law is of particular importance because it returned Spain to a monarchical form of government after the period of the Second Spanish Republic. However, Francisco Franco was explicitly declared head of state for life, which proves the authoritarianism of the regime in question. The establishment of the monarchy was a matter of the future, and in 1947 the purpose of the law was to strengthen the stability of the Francoist regime. The preamble stated that this law is the Constitution of Spain. However, it is not accepted in the scientific community to consider it as such in reality. The law itself is not called a "Constitution", "Basic Law", etc. In addition, the law regulated only a small part of the object of constitutional law: it affects only the sphere of public authorities, and among them — the post of head of state, the Royal Council, their order of interaction with the Cortes (regulation of executive power) and the actual issue of the form of government. The legal status of Spanish citizens and other branches of government is not fixed in this document in any way, these subjects are regulated by other legislative acts. The Regency Council was supposed to receive the powers of the head of state after the post of head of state was vacant. The law described its composition. Among others, it included the chairman of the Cortes. For him to make decisions, there had to be a quorum, which was at least two-thirds of the total number of members, including the Chairman or Vice-Chairman of the Royal Council.

The Royal Council is an advisory body of the executive branch, designed to assist the head of state in making important decisions. Its decisions took precedence over those of all other advisory bodies. The Cortes also belonged to them, therefore, this law implies the absolute priority of the executive power over the legislative in the Francoist regime. The Royal Council included the Chairman of the Royal Council, the most senior Catholic prelate from the Cortes, the highest Lieutenant General of the armed forces, the Chairman of the Supreme Court, the Chairman of the Council of State, representatives of municipalities, university rectors and a number of others. The chairman of this body was the Chairman of the Cortes, and he was appointed by the head of state. Consequently, the Royal Council was subordinate to the head of state. Decisions were made by a majority of the members present (at least half of the total number), and the chairman's vote was decisive.

The head of state could at any time present to the Cortes the candidacy of the king or regent, as well as withdraw it, even if the Cortes had already accepted it. The candidate had to be a man at least 30 years old, a Catholic, possess the necessary qualities to occupy the throne and swear an oath to the laws of Spain and the principles of the National Movement. In the event of the termination of the head of State's rule, the Regency Council was to exercise the powers of the head of state, and under his leadership, the Government and the Royal Council would meet to determine the king's candidacy and propose it to the Cortes. The candidacy would have to be submitted until the Cortes approve it. Starting with the third vote, a three-fifths majority, rather than a two-thirds majority, would have been required to confirm the King. After the election of the King, the Regency Council resigns its powers, which are transferred to the elected King.

The order of succession to the Spanish throne was also determined. The principle of primogeniture was established, the eldest line had priority over the youngest, and within the same line, the closest degree of kinship had priority. Men had priority over women, and women could not rule, they could only transfer the right of succession to the next heir. In the case of the minor or incapacity of the heir to the throne, a regent was appointed for the period of his incapacity.

Concessions of succession rights, abdications after the appointment of a successor, and marriages of the king and his immediate heirs were announced by the royal council, as well as sanctioned by the Cortes. The Head of State, on the recommendation of the Royal Council, could exclude those who were incapable of governing or unworthy from the royal candidacies. The issue of the king's incapacity was decided by the Royal Council, and then the decision on this issue was approved by the Cortes.

The Law on the Succession of the Leadership of the State established that the Basic laws of Francoism are the Spanish Charter, the Charter of Labor, the Law on the Establishment of the Cortes, as well as the law under consideration and the Law on the National Referendum. Later, other laws could have been passed in this category, and from now on, the repeal and amendment of these laws required a national referendum. In this capacity, it was never carried out, since the Fundamental Laws were not repealed or changed in the future, only new ones were adopted. However, for the adoption of this law, as well as the Organic Law of 1966, a referendum procedure was carried out, which in these cases was optional. The law on the succession of state leadership carries the risk of the Regency Council retaining power after the end of the presidency of the head of state: the king's candidacy had to be approved by the Cortes; there is a legal gap in the law that did not provide a clear interpretation of the rules of law, in case, after the third vote, 60% of the votes were not received to elect the king. While this situation persisted, the Regency Council was vested with the authority of the head of state.

It should also be noted that the head of state in the Francoist regime was given the authority to influence the approval of the king on the throne in the person of his successor. Nevertheless, based on this law, the stability of Francoism after the death of the dictator is questionable, because it was assumed that after the death of Caudillo, all power would pass to the Regency Council, and the approval of the new monarchical regime would be the responsibility of people unrelated to Franco family relations and without his influence. Consequently, this law confirms that the legal foundations of the regime in question served to strengthen the power of Francisco Franco specifically during his lifetime and did not provide sufficient guarantees for the preservation of the Francoist regime after the death of the head of state. Moreover, the law directly indicated a certain transformation of the regime from a personalistic dictatorship into a different political system, which would be headed by the monarch.

Thus, in Spain, a system of Fundamental Laws of the Kingdom was formed and legally formalized, which became the unconsolidated Constitution of Spain. It cannot be called unwritten, since the Fundamental Laws were proclaimed as the Main Ones, and also, due to belonging to the Romano-German legal family, the acts of constitutional law of Francoism were characterized by a uniform source of law — the constitutional law. The status of these laws differed from the usual ones, and they had a complicated procedure for changing or repealing them. ^[27]

Meanwhile, the succession to the throne returned Spain to the monarchy, proclaiming the Spanish Kingdom, which applied the principle of innovation of the sovereign, endowed with power by the elite of the state. This made it possible to ensure the interests of the ruling class without actually and legally taking into account the interests of the Spanish people, who could get a new dictator, or the first among equals in a group of political leaders. However, the normative legal act in question also provided the opportunity for a transition to a formal monarchy, which essentially develops democratic institutions and transforms into a traditional form of government, but with symbolic significance.

The Law on the Principles of the National Movement of May 17, 1958

(Ley de Principios del Movimiento Nacional) ^[28]

This law fixed in one place the key principles on which the activities of the Francoist regime were based. They can be divided into three main groups: doctrinal, organic, and programmatic principles. In general, the law described in detail the program of actions for a special legal entity — the National Movement.

The National Movement is a collection of political and public organizations that were the mainstay of the Franco regime's power. It included the ruling party, the Spanish Trade Union Organization, youth and women's organizations. All civil servants and persons who held public positions took the oath of allegiance to the principles of this movement. Doctrinal principles defined the meaning of Spain's legal system. They cannot be called directly applicable legal norms, but rather they can be characterized as the ideals that the functioning of Francoist law, the state and society was aimed at achieving. In total, the law defined six principles of this type:

1) the principle of unity of freedom and greatness of Spain and the Spanish nation;

2) the principle of observing the Law of God and maintaining Catholicism as the state religion;

3) the principle of protecting the institution of marriage and peace between the nations inhabiting Spain;

4) the principle of armed defense of the unity, integrity and independence of Spain;

5) the principle of subordination of individual and collective interests to the common good, legislative protection of Spaniards;

6) the principle of the existence of the family, the municipality and the trade union as pillars of the national community.

The basic organic principles of the foundations of the state system were established:

Firstly, the Spanish people constitute a national State that adheres to the principles of the National Movement and is a traditional, Catholic, social and representative monarchy in its form of government.;

Secondly, the representative nature of the political system, the people participate in law-making activities through the family, trade unions and municipalities.

The program principles established the rights of Spaniards, as well as prescribed specific government actions in pursuance of the principles of the National Movement and the common good.:

First, the right of Spaniards to independent justice, educational benefits, social benefits, as well as equal distribution of national income and tax burden;

secondly, the right to work and support private initiative;

thirdly, the subordination of economic values to social values (the activities of enterprises are based on common interests and goals, and internal relations in the enterprise should be based on mutual loyalty and fairness);

Fourthly, the principle of the welfare state (its activities are aimed at improving the physical and moral health of Spaniards, encouraging the development of agriculture, industry, scientific, maritime and naval activities).

The law in question notes that national principles are permanent and unchangeable, and the law itself logically continues the law on the inheritance of state leadership (which is called the "Basic Law" in the text of the 1958 Law, and is thus recognized as the leading one). All government agencies and other organizations were required to act in accordance with the principles of the National Movement, which were contained in the oath when entering the civil service. Any law or by-law that contradicted National Principles was invalid.

Thus, this law formalized the ideological basis of the Franco regime and placed it in a key place in the Spanish system of law and state. This is the source of the Francoist state's ideology. From now on, all Spanish law and the activities of the Spanish state authorities had to comply with the national ideology of Francoism. Francoist law fixed the principles of nationalism, the leading role of Catholicism, the protection of the institution of the family, the protection of the Fatherland, the priority of public interests over private, corporatism, as well as a number of socio-economic rights. The principles of Francoism laid the foundation for dictatorship, because the authoritarian regime used ideology to justify the positions of leaders based on their will, and not on the will of the people or on legitimate law.

The Organic Law of the State of January 11, 1967

(Ley Orgánica del Estado) ^[29]

Special importance was attached to the adoption of this law, and a national referendum was held for this purpose. The preamble of the law listed all the previous Fundamental Laws of the Kingdom, but recognized that this legislation was imperfect, and the final institutionalization of the political regime was required by more detailed regulation of the powers of public authorities in the development of the provisions of previous laws; the law included ten sections.

Section 1 (national State) regulated the foundations of national sovereignty, which was indivisible and inalienable; the objectives of the State's activities; as well as the colors of the national flag.

Section 2 (Head of State) proclaimed the unshakeable authority of the head of State, as well as granted him a wide range of powers. The Head of State was a representative of the Nation.

Section 3 (Government and Nation) separated the posts of Head of State and Chairman of the Government, who was appointed for a five-year term by decision of the Head of State. The Head of State formed the Government on the proposal of the Chairman of the Government. In the event of the death of the Prime Minister, the powers passed to the Vice-Chairman, and if this was not possible, to the minister, who was elected by the head of state. The Government was responsible to the Head of State, and the Prime Minister and the Ministers were jointly responsible for the decisions taken by the Council of Ministers. The issues of judicial responsibility of Government members were under the jurisdiction of the Supreme Court.

Section 4 (The National Council) stipulated that this body was the collegial representative of the National Movement. This gave him the authority to maintain and promote these principles in Spanish society. The composition of the National Council was established, most of the members were appointed by the head of state, and were also elected from the provinces. It was pointed out that a separate organic law should have been adopted to regulate the activities of the National Council.

Section 5 (Judicial power) He consolidated the independence of the judiciary and judges, which, however, was carried out on behalf of the head of state. The judges were irremovable. The activity of courts of general jurisdiction in criminal, civil, labor, and administrative disputes was regulated by the Organic Law on Judicial Power. The systems of military and ecclesiastical courts were singled out separately. The Chairman of the Supreme Court supervised judicial activities. The Prosecutor General, as an intermediary between the Government and the courts, was also listed in the section on the judiciary, thereby giving the judiciary a general focus on protecting public rather than private interests.

Section 6 (Armed forces) described the branches of the armed forces, including the forces of public order. This section provided for the existence of the National Defense Council, which included the Prime Minister, military ministers, as well as the main military leaders. The Council made joint decisions to ensure national security. The High Command was also responsible for coordinating the actions of the land, sea and air forces.

Section 7 (State authority) He regulated the activities of the national executive branch. She had to adhere to national principles and applicable laws. The National Economic Council was an advisory body on important issues of national economic development. Acts of the executive authorities could not contradict the laws, as well as regulate matters under the jurisdiction of the Cortes, unless this was directly provided for by law. The authorities and officials were responsible for their decisions in accordance with the procedure established by law.

Section 8 (Local Government) established the administrative and territorial division of Spain into provinces, which were an association of municipalities. Municipalities exercised power in the subjects of their jurisdiction, without contradicting the interests of the national administration. The representative bodies of municipalities were formed in an elective manner.

Section 9 (Relations between the highest executive authorities) indicated that the Cortes, in addition to participating in legislative activities, resolved issues related to the succession to the throne, were informed about changes in the composition of the government, and performed other duties assigned to them by Fundamental Laws. The law went on to describe procedures involving both the Government and the Cortes. For example, the state budget was drawn up by the government, and the Cortes approved it. The head of state acted as an intermediary between different authorities, while being above them and enjoying immutable authority. First of all, he settled disputes about jurisdiction between different courts. The Head of State also appointed the Chairmen of the Supreme Court, the State Council, the Treasury Court of the Kingdom and the National Economic Council. Consequently, the judiciary was dependent on the head of State.

Section 10 (Appeal of the contrafuero) established that the contrafuero (a normative legal act contrary to the principles of the National Movement or Fundamental Laws) could be appealed during an appeal to the Royal Council on behalf of the head of State. This action was under the jurisdiction of the National Council or the Standing Committee of the Cortes (regarding government regulations). The complaint was submitted to the Royal Council, after which it made a decision on the disputed document and notified the head of state about it. If the Royal Council decided to repeal the disputed act, this decision was immediately published in the official newspaper for publication of the National Assembly "Boletín Oficial del Estado" indicating the reasons for the cancellation of such an act. Also, before submitting any draft law to a referendum, the head of state was obliged to instruct the National Council to verify the existence of grounds for appealing the draft law. If this body identified the existence of such grounds, it was obliged to launch a procedure to block the enactment of this law. A special law provided for more detailed regulation of the appeal process against regulatory legal acts.

The final provisions confirmed the lifelong nature of the power of the head of State, as well as his leadership of the National Movement. After the death of the head of state, these powers passed to the king, who could, on his own instructions, transfer the leadership of the National Movement to the head of the government.

The considered law had a special role in the Fundamental Laws of the Kingdom. After its publication, within four months, it was ordered to codify the Fundamental Laws, and all provisions that contradicted the Organic Law of the State became invalid. In addition, the 1967 Law was declared the Basic Law, as such it replaced the 1947 Law on Succession to the Throne. Consequently, the 1967 law was recognized as having greater legal force than the other sources of the unconsolidated Spanish Constitution. Thus, the legal basis of Francoism acquired its final form, in which it existed until the death of Francisco Franco. The adoption of the 1967 law completed the legal formalization of Francoism, the legal institutionalization of the Francoist regime and the registration of its state institutions and the legal status of the individual took place. From now on, the Fundamental Laws of the Kingdom represented a stable set of basic laws of Spain, which ensured the functioning of the authoritarian Franco regime and the regulation of the subject of constitutional law in Spain instead of a real democratic Constitution, while mimicking a democratic state with a strong head of state, in the future a dualistic monarchy. ^[30]

The Organic law defined the foundations of the constitutional system, clarifying the previously established order of government; it marked the consolidation of the dictatorship, the unity of the system and the structure of the state mechanism, setting it up as a single organism.^[31]

The fundamental laws of the Kingdom, as rightly noted by M.H. Posas really consolidated the authoritarian regime, so it can be argued that the legal system of Francoist Spain was the legal system of a personalistic autocracy. ^[32] Legal science confirms the conclusions of political scientists who give the regime of F. Franco describes a similar characteristic in terms of categories of the political regime. ^[33] Meanwhile, one cannot agree with the author that the institutions of the transitional period were democratic in fact, they retained an authoritarian character for a long time, which contributed to maintaining order in the country.

Examining the autocracy of Francisco Franco, one can conclude that he was not a king, but was a sovereign, based on the content of his actual and legal powers, which is emphasized in a number of other studies that should be agreed with. ^[34] The dictator's rule should not be attributed to the period of the "republic", since this form of government implies the existence of appropriate legal institutions that appeared later. At the same time, the Spanish monarchy in a later period, as N.E. Anikeeva notes, actually developed a republican form of government. ^[35] We propose to consider the Francoist period as a monarchical period with an appropriate form of government, which is confirmed by other researchers of the history of the Spanish state. ^[36] In addition, the use of forced labor should be noted as one of the signs of the Spanish totalitarianism of the Francoist period, from which representatives of the ruling class were freed, who were the mainstay of the head of state, who distributed regalia among the representatives of the elite, who embodied the leader. The quasi-democratic institutions - the quasi-parliament and the pseudo-plebiscite - legitimized the power of the Spanish dictator, who used them to grant privileges to his trusted representatives, the procurators (members of the legislative advisory body), as well as in order to reduce social tension and give tyranny the form of democracy through the use of legal fictions.