OBITUARY: Professor Francisco Toms y Valiente

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The Independent Online
Spanish public life has suffered a devastating blow in the death at the hands of an ETA terrorist of Professor Francisco Toms y Valiente in his office at the Autonomous University of Madrid. His murderer could hardly have chosen a victim more representative of all that was best in the new democratic Spain.

The sense of loss extends well beyond Spain itself. Although a British press preoccupied with the resumption of the IRA bombing campaign has found little space for anything other than the fact of his assassination, Toms y Valiente was a man who deserves at least as much attention for the matter of his life as for the manner of his death.

Born in Valencia in 1932, he studied at Valencia University, from where he graduated in 1955. Specialising in legal and institutional history, his first appointment was to the University of La Laguna in Tenerife, from where he moved to a chair in the Law Faculty at Salamanca in 1964. It was during the Salamanca years, which lasted until his appointment as Professor of the History of Law at the Autonomous University of Madrid in 1980, that he began to acquire his reputation as an innovator in the field of Spanish legal history.

Traditionally this had confined itself to the Middle Ages, and was highly formalistic. One of the great achievements of Toms y Valiente was to carry it into the age of the Habsburgs and the Bourbons, and subsequently into the 19th century. He was also a pioneer among Spanish legal historians in turning to the archives for new sources of information.

His investigations resulted in a series of pioneering studies which did much to renovate the study of Spanish law and institutions. His 1963 book on the institutionalisation of the Favourite in 17th-century Spain (Los validos en la monarqua espanola) has became a standard source of reference for a topic which in recent years has attracted growing attention from historians of Early Modern Europe. Later works on such subjects as the sale of offices, the disposal of church property, the history of torture, and on different aspects of Spanish penal law and institutional history, reveal a remarkable capacity to combine the precision of the legal historian with a deeply felt sense of the social and cultural context in which laws were made and institutions operated.

His writing, too, was informed by the tolerance and the respect for humane values which characterised his attititude to life, and did so much to shape his career as he came into prominence after the death of Franco. During the Franco years his liberal ideals and his refusal to remain silent brought him into conflict with the agents of the regime and the university authorities; but, as he proudly records in the introduction to one of his books, if he had problems with the Rector, the Dean, the Ministry and the police, not a single incident marred his relations with his students.

His prestige as a jurist and scholar made him a natural candidate for a post on the newly founded Constitutional Tribunal, to which he was appointed in 1980. He served on this for 12 years, the last six of them as its president. In this capacity he made an enormous contribution to the shaping of the new Spanish democracy. In decision after decision he spoke up for tolerance, moderation and reason.

His background and training enabled him to set the problems of contemporary Spain into a historical perspective, with enormously beneficial effects for the development of the new Spanish consensus. In particular, his Valencian origins and his awareness of the rich contribution of pluralism to the history of Spain made him exceptionally sensitive to, and understanding of, the aspirations of the Catalans and the Basques. This in turn enabled him to play a critical part in devising the constitutional arrangements which guaranteed the autonomy of the different regions within the framework of the modern Spanish monarchy. But it also marked him down as an obvious target for those who had no respect for dialogue and compromise, and would stop at nothing in their pursuit of outright independence.

After retiring from the Constitutional Tribunal in 1992 he returned to academic life, and was full of ideas for new historical projects. His appointment at the beginning of this year as a permanent member of the Council of State gave him great pleasure, not least because it offered him the opportunity to pursue his historical vocation while enabling him to make his voice heard on the constitutional issues of the day.

If Toms y Valiente was the civic conscience of Spain, and was increasingly perceived as the symbol of the 1978 constitution in which its democracy is enshrined, he was also the most unassuming of men and the liveliest of companions. With an inner tranquillity rooted in a happy marriage and a family of four children, he was always alive to the concerns of others, and had a great capacity for enjoying life. Music and the cinema gave him special pleasure, and he was a splendid conversationalist.

In the last article which he wrote for El Pas, an article in which he characteristically wrote of the need to defend the democratic state against those who would overthrow it with the gun and the bomb, he penned what in retrospect can be read as his epitaph: "Every time they kill a man in the street, they kill a little of each one of us."

Francisco Toms y Valiente, historian and jurist: born Valencia 7 December 1932; Professor of the History of Law, Autonomous University of Madrid 1980-1996; married Carmen Lanuza (four children); died Madrid 14 February 1996.