6.1.a Dialogue as Law

Dialogue has always been a regulatory form. It is necessary to foundational divisions: to distinguishing lawyer from philosopher, common law from canon law, jurist from prince, and so on. Dialogue makes such distinctions visible: It instantiates them. In the biblical text, the economy of the dialogue works so that alternating voices arrive to regulate life on earth. The first five books of the Bible, the Torah or the Pentateuch, are a long, developing dialogue between God and men, and between God-sent men and other men whose purpose is to announce and formalize a universal law not bound by time.

We might say here that dialogue is at the heart of the foundation of law: To put it in its starkest terms, dialogue founds law, and thus founds all norms (law in the broadest sense). But dialogue is also subject to particular laws. If dialogue is a regulatory form, engaging in it has always been a highly regulated process. It does not happen by itself, but according to rules, both soft and hard – the distinction is Lorraine Daston’s.Footnote ⁵ These rules – or laws – allow one to recognize that what is taking place is a dialogue and not – for instance – a harangue, a monologue, or a cacophony. Dialogue in written form always respects the law of linearity of the linguistic sign (Saussure). It assigns each of the individuals in the dialogue their own moment of enunciation. The laws of dialogue regulate its time, its enunciation, its authority. Dialogue thus belongs to a world of the predictable. Literary dialogues, philosophical dialogues, instances of interrogation, theatrical dialogues create the sensation that one is in a culture of conversations whose interactions must be repeated in a particular way. A given theatrical dialogue may appear very different when the actors change, or when the stage changes, or even when the edition changes, but – even if performance is by definition not predictable – the words are composed to be predictable.

Regulating dialogue is no easy matter. This is because humans in general are very bad at listening to a full set of arguments before jumping to conclusions and interrupting the interlocutor – as a Spaniard, I can aver with no shame that an unregulated dialogue generally leads to a deafening polyphony and dissonance next to which Schönberg’s Harmonielehre would pale. But once it is regulated, it becomes an extraordinary political and legal artifact for the definition of knowledge and for power generally.

6.1.b Dialogue in Performance: The Regulatory Force of the Affective Space

This does not mean that dialogues function in a sterile void. The elements that shape theatrical dialogues appear in all dialogues: All dialogues require alternation; they require different voices, they require conclusions and choral understanding, they require dialectics.Footnote ⁶ Dialogue requires performance, and performance elements themselves contribute to dialogue’s regulatory function. In the Homeric agora, for instance, Telemachus needs to hold the staff to speak (Od. 2), so that actual dialogue may take place and then political and legal decisions can be made. This simple regulation – an object points to the right to speak and engage in discussion – creates the very dynamics in the circulation of power; power is invested in the staff itself. The staff is also a divine attribute – the staff-bearing God, Hermes, or Mercury, who is not only the messenger of the gods, but also Philology’s husband – the ruling of the gods and their interpretation are married till death do them part.Footnote ⁷

Dialogues require a place where all this can happen. They unfold not only through performance but also through performance in specific spaces. It would be wrong to envision performative space only through the Aristotelian concept of ópsis (ὄψις) which has to do with vision, or, in Latin spectaculus, what there is to be seen: Riccoboni translates it as apparatus; William of Moerbeke calls it uisus.Footnote ⁸ For performative spaces – the spaces in which dialogue takes place – are affective spaces. Aristotle seems to recognize that ópsis is affective, but his ideas about ópsis produce a certain frustration because he is so confused about the relationship between ópsis and affect. In some cases, the philosopher understands in an eye-opening way how the objects visible on stage, those things that are there to limit the action to a production of space, are charged with emotional and affective power (1453b1–3). But then he seems to contradict himself, for he says that it is much better when those emotions and affects derive directly from the fable or plot (the mythos, Latin translators always call it fabula). Just a few lines later (1453b7–8) Aristotle says that it is splendid that feelings like fear or compassion derive from ópsis. But then he writes that ópsis is less artistic, and also very expensive! He recognizes the power of the affective space, but does not want it roaming freely; he wants it well scripted and inscribed in the plot, with action governing passion.

What is an affective space?Footnote ⁹ Affects, Deleuze declared, are “tout mode de pensée qui ne représente rien” (all modes of thought that represent nothing).Footnote ¹⁰ When we say affective space, there seems to be a contradiction, because we are talking about something called space in which nonrepresentational thinking (affects) happen. And yet one feels that affects occur in space.

One cannot really quantify affect. But one might say that some spaces are more affective than others. From a merely intuitive perspective, affective space is the physical space where the volume of affects seems so extraordinary and hypertrophic that affects – as passions and emotions – seem to take hold of all the actions. In the affective spaces of institutional performance, affects steer the movement of those cohabiting in this space, even while this movement responds to or triggers a technical or scripted modality of communication. Certain kinds of affect are central to the regulatory power of dialogue.

Performance may be connatural to the production of affective space, but this does not mean that to produce affective space dialogue must literally be performed, as in a theater. Nontheatrical dialogue – while purely verbal – also relies on the production of affective space.

Indeed, affective space is crucial not only to the meaning of the dialogue but also to dialectical elements: It participates in generating the mood of reasoning and argumentation. Mood is sometimes dismissed as peripheral, but it is not at all peripheral. A couple of examples: In Cardinal Nicholas de Cusa’s Trialogus de Possest, the three interlocutors are not together at first. Only Bernardus and Johannes seem to be together and willing to engage in a conversation with Cardinalis, who is none other than Nicholas himself. It is February 1460 (Nick is only fifty-nine), in the thick of the disputes between the cardinal and the Duke of Austria, Sigismund, who would fight him and imprison him for a few days in April of that year. Bernard of Krayburg (Bernardus) and Giovanni Andrea Bussi de Vigevano (Johannes) find the cardinal sitting by the fireplace. Nicholas looks at them placido vultu (with a calm face), telling them that it is too cold, in fact colder than other days, and that they should approach the fire and tell him why they have such serious expressions.Footnote ¹¹ Here, the dialogue itself configures the affective space: the fireplace, the distance between Bernardus and Johannes on one side and Nicholas sitting placidly on the other, the doubt about whether they should approach him.

This stream of affects, produced by the space, is entangled with questions of power. Here, the one in danger – Nicholas – is precisely the one who seems so calm and peaceful sitting by the fireplace, concerned only with the question of whether this February is colder than previous Februaries. In the dialogue, the three of them will delve into the question of the Can-Be (possest, which recent French translators and editors render as povoir-est, not less confusing than the Latin), and therefore the question of the power of God. A purely technical philosophical interpretation that ignored space would obscure the fact that the affective-spatial circulation of political and legal power is at odds with the forms of power circulation predicated by imperial actors and scripted in dialogue.

Let’s look at another example: the river in which Phaedrus and Socrates cool their feet in the dialogue that has Phaedrus’s name. They are going to discuss important questions about the immortality of the soul, but what they really need to do is to walk and cool their feet. It’s hot out there, and – can one philosophize in this heat? This reference to the heat, their feet, and the river is so crucial to the meaning of the philosophical dialogue that it would probably cease to exist if the feet of those philosophers were not bare and wet.

All those elements exist deictically: The dialogue points to them but does not quite show them. The dialogue does not tell you, here is the fireplace, and the mantel is like that, and the fire is crackling, and there are pictures on top of it, nor (even better) does it show them as a simulacrum there, on stage before your eyes. The dialogue does not tell you anything other than the name of the river. But it is essential to the dialogue to imagine it: shallow enough to just cover the feet up to the ankles and no more (one cannot philosophize with the water up to the neck, except metaphorically). These elements of place are ghosts, phantasmata in Greek, that must be imagined by being matched to one’s experiences with a fireplace or a shallow river (with a few small fish, hardly a school, trying to avoid your feet). In other words, they are neither an object nor an idea, but rather the affective ectoplasm of one’s experiences or imaginations.

That experience invites you to identify with characters in the dialogue. Theoretically, you might identify with any of the characters. But this apparent freedom also serves a regulatory function. For dialogues are framed to allow readers initially to identify with the doctrinally incorrect position precisely so that they can be brought to reject that position – so that they can feel that they have arrived at the doctrinally correct position on their own (while the dialogue was of course always leading them there). I will offer an example. John Wycliff, the famous fourteenth-century priest and church reformer, as well as author of political-legal treatises, was also the author of another Trialogus or dialogue of three. He imagined a trialogical scene with a “solidus philosophus,” a “captiosus infidelis,” and a “subtilis theologus.” The first one, Alithia the solid philosopher, speaks; the second one, Pseustis the clever unbeliever, objects; and Phronesis the subtle theologian decides.Footnote ¹² Pseustis may momentarily persuade readers, but Phronesis helps them see that they were mistaken. The endgame is a series of doctrinal sentences laying out the conceptual, social, political, and economic meaning of Christian doctrine.

Alithia (truth) and Pseustis (liar) are character names that derive from the tradition of debate or dispute poetry in the Middle Ages, while the name Phronesis is of Aristotelian descent and indicates not just practical wisdom, but also prudence, which is a dianoetic virtue that has an extraordinary value in medieval political theory.Footnote ¹³ But this is almost Hegelian dialectics, in which theses and antitheses need to be addressed by somebody who has the power of synthesis – who can put in practice a multifaceted prudence that includes political, ethical, and philosophical analysis. Phronesis will be in charge of conveying a synthetic truth and making it portable: Readers can ultimately become Phronesis and think and express themselves as him.

Thinking as him also means partaking of the affective space, getting involved in this creation of a phantasmic place where feelings, emotions, and affects of a certain kind necessarily happen. Nicholas’s placid face when he looks at the others from the fireplace is exactly the kind of expression that can transmit tranquility and draw the reader’s focus to the complicated matter for discussion. In the midst of political turmoil involving the very person who seems to be so calm, the readers are drawn by that calm to attend in calm themselves. The cooling of the philosopher’s feet transmits to the reader the daily experience of philosophy: Philosophizing is not an activity that takes place in a given, hieratic space, but in a placid, cool everywhere. Wycliff may give readers the sensation that they have been thrust into the middle of polarized polemics, torn between truth and lie. But the text also helps readers feel affectively that prudence is central and available to anyone – as Aristotle suggested in his Ethics to his son – and therefore that his sentences are portable: capable of being transferred, owned, and used by others.

6.1.c The Affective Space beyond the Script: Turning off the Lights of Literary History

The dialogues I have referred to, one could say, are literary dialogues. They belong in a generic storage room well described and ordered by the institution we call literary history. It is a boring institution that plays nevertheless a very important role in the organization of knowledge, and it is at the center of the narratives that produce literature itself. Furthermore, literary history is an apparatus that delimits the range within which literary artifacts operate: By designating genres and establishing their rules, literary history also permits and extols intergeneric relations; literary history defines the modes of exchange, relationship, and transformation within a certain space, not unlike a topological theory. Literary history also allows us to say, “well, this is literature,” and to be certain that by doing it we are also understanding the cordon sanitaire that exists between this act of intellectual creativity and other acts of intellectual creativity – law, for instance. Establishing the limits and generic characteristics of some literary objects activates them only within their own network, where they do whatever work they need to do, while we can sing from the top of the cliff: Suave, mari magno turbantibus aequora ventis, e terra magnum alterius spectare laborem.Footnote ¹⁴

What happens when we turn off the lights of literary history? Literary dialogues turn out to be not only literary; they cannot be constrained within the literary canon. Philosophical dialogues turn out to be not just philosophical. It is like the museum at night. Objects become alive and start doing all sorts of things and keeping all sorts of conversations while we sleep in the peace of our thresholds – Homeric heroes used to have their beds made in a threshold of the palace, probably to be protected by the lintel. What happens when literary history is not watching, is that all things are mixed up, and that in our dreams the literary and the nonliterary start conversations (dialogues, as it were) that shape some of the ways we will think at sunrise.

What we learn from turning off the lights of literary history is that affect is not always so tame. Wycliff may use the affective space to draw readers toward prudence. But the history of dialogue is – I would argue – the history not only of affective space as a regulator but of the permeability of the affective space: On one side enter the formalization and regulation of dialogue, and, on the other side enter improvisation, unscripted action, unpredictable affect. The affective space of the dialogue cannot be entirely controlled by implicit directives. It is in fact so vast that it cannot be contained by any kind of organizational principle or institution. Affects are unpredictable: They happen without specific forms of representation, without even being named, qualified, or described.

Dialogues are thus central producers not only of regulatory affect but also of the kind of affective space where unpredictable things can happen. The prevalence of the affect is what makes a dialogue so powerful in its performance: Affect opens up the dynamics of thinking, rather than enclosing it within action and teleological plot. Dialogues are also, as a form, especially good at illuminating the unpredictability of affective space. They show us the fabrication of affective space in action, as it is happening in the theater of the dialogue, as it arises. Appearing to belong to a world that is fully scripted, dialogues highlight the affective space by revealing the tension between scriptedness and affect. The scripted, predictable words are shaped by and issue in a world of unpredictable affects. Telemachus’s staff may be a tool of power, signifying the rules of dialogue. It may effectively found law. But it may also foster trepidation, doubt, love, and a thousand and one other unpredictable effects.

6.2.a Dialogue and the Production of Legal Truth

I will now turn from dialogue as law and the laws of dialogue generally to look specifically at dialogue in the lawscape. Rituals, linguistic formulae, forms of power circulation, and reasoning are some of the scripted modalities of legal communication, all carefully set up to organize the judicial process in its entirety. The court of law operates according to fictions and rituals. I say fiction with the utmost respect. Fiction, here, does not mean that something is not true, or that it is a lie, or even that it is a kind of literary genre. There is nothing truer than a court of law. My notion of fiction is in conversation with Yan Thomas’s work on the artifices of truth.Footnote ¹⁵ Because the court of law is not a spontaneous element of nature, but rather an institution, it is by necessity artificial, fabricated, fictionalized, just as all artifices of truth are fictionalized. Legal ritual, for its part, does two things. First, it reassures those meeting in specific legal spaces that everything is going to happen according to plan, time, procedure, and proper movement. Second, it establishes its own myth, its own narrative: self-contained and with a clear, auto-poetic etiology. Fictions and rituals guarantee that the dialogue taking place inside the court of law is going to produce something we call truth.

Dialogue is central to the ritual production of legal truth. Here we can see with particular clarity the limits of Bakhtin’s conception of the dialogic. For legal dialogue is one of the most powerful scripted modalities for organizing law: for controlling the lawscape and all those subject to it. How do we talk about dialogue in the court of law? Interrogation – one could easily object – is hardly dialogue. But here is where things get perhaps more interesting. In his Diálogo en la muerte del marqués de Santillana (ca. 1458), Pero Díaz de Toledo describes dialogue as a conversation between someone who asks and someone who responds.Footnote ¹⁶ Interrogations certainly take the form of a dialogue. At the same time, the questioner and the respondent are entirely distinct from each other, with power on one side and subjection on the other. The questioner creates the script for the respondent. And often the interrogation is, quite literally, scripted in advance: The interrogator follows the formula laid down in the interrogation manual.

Like dialogue generally, legal dialogue does its work in part through performance and the affective space. In law (as Peters suggests), space and performance operate together: through (for instance) the architecture of the courtroom, the atmosphere of viewing and being viewed, of hearing and being heard. Affective space in law is crucial for the constitution of the lawscape or the legal atmosphere (as Philippopoulos-Mihalopoulos also calls it): the affective universe of the law, outside which there is nothing. Law, in other words, takes place through affective microperformances. These are governed by a concentrate of dialogue, with extraordinary consequences for the judicial process. These operations can be seen in action with particular clarity in the microperformances that pervade the inquisitorial system and its many articulated arms, not least in the sacrament of confession.

6.2.b The Confessionary

The Fourth Lateran Council of 1215 mandated that all Christians confess at least once a year in front of a confessor and speaking the same language.Footnote ¹⁷ During the thirteenth century and (still more) in the fourteenth, inquisitors – who had acquired an extensive knowledge of diverse spiritualities active in many different places – began to regulate these legally mandated dialogues between the Christian subject and the confessor.Footnote ¹⁸ In this legislative moment in particular, we can begin to understand the importance of the techniques of law-writing: how these techniques in fact – without necessarily changing any technical vocabularies – open the door to a juridification of the world – the complex construction of a system meant to manage a wild lawscape. They do this in part through the scripting of dialogue.

Confession involves the celebration of the sacrament of reconciliation in a private setting through oral utterance. Though the place of confession has changed over time – there have been many different formulae for making sure that the direct contact between confessor (in lieu of God) and penitent are undisturbed – confession always happens in a specific location that deploys its own universe of affects, emotions, and feelings. Let us call this setting a confessionary. The confessionary became over time an artifact, a small private stage where the actors arrive from different places to engage in dialogue. There, the confessor and the penitent can be isolated from other people, to protect the privacy of the penitent – but also the privacy of the dialogue and the administration of both penance and absolution.

After the Council of Trent, which devoted many canons to the question of confession, Cardinal Carlo Borromeo ordered some modifications of the process of confession (the ritual). At the same time, he ordered the creation of a beautiful piece of furniture, reasonably portable, that is heavily protected and enclosed.Footnote ¹⁹ Later on, it would come endowed with a latticework window to separate the confessor from the penitent and avoid sexual contact. (In Spanish, those priestly sexual predators were called frailes solicitantes).Footnote ²⁰ The canons of the Second Vatican Council removed the latticework and most of the private elements, with the aim of establishing a true dialogue between the confessor and the penitent. They meet under the lintel, in the threshold, to facilitate the dialogue, as the French Catholic authorities explain in their definition of the confessional: “On tend aujourd’hui, en beaucoup d’endroits, à choisir un lieu plus propice au dialogue entre le prêtre et le pénitent pour la célébration de ce sacrement.”Footnote ²¹ One genealogy of confession could be told from the perspective of this portable stage in which the penitent has been conducted from the spectacle of public penance or their private, unidirectional conversation with God to a private dialogue within a space and stage that contains it, offering different degrees of intimacy between the penitent and the confessor.

Those are elements that envelop the dialogic experience of confession through the configuration of space and place. But texts also importantly shape the experience of confession. Confession handbooks began to appear after the Fourth Lateran Council, and (still more) after the (heavily glossed) codification of Raymond of Penyafort’s Summa de Penitentia et Matrimonio. Just as inquisitorial handbooks insist on the specific questions the inquisitor must ask and the answers the interrogated may give, so confession handbooks insist on the specific questions the confessor must ask and specific answers penitent may give. Alfonso X’s vernacular code of legislation from the second half of the thirteenth century – the Siete Partidas (of which more later), and in particular the First Partida – contains forty-five laws specifying the rules of confession (from 1.4.17 to 1.4.46). This includes the kind of questions the confessor must ask (Partidas 1.4.26), and the ways the confessor must pescudar: that is, engage in an inquest into the sins of the penitent (Partidas 1.4.25).Footnote ²² In this same section in the Partidas, we learn that confessing is a performance in time (in the moment) and, specifically, a performance of the body. Therefore, confessions must take place in person and orally, not by letter or through a messenger. This is because body language does not lie (Partidas 1.4.30).

The Siete Partidas are particularly important to the history of legal dialogue and its dominion over the body for two reasons. First, they combine canon and civil legislation in a single royal codification. As a result, royal and civil jurisdiction expands to many different branches of the law, thus covering the whole universe of law. Second, the Siete Partidas are written in the Castilian vernacular (Spanish, if you wish). In this, they are unlike canon law in general.Footnote ²³

Elsewhere, I have studied the importance of the decision to legislate in the vernacular.Footnote ²⁴ Briefly, canon law in the Spanish vernacular – as inaugurated in the Siete Partidas – created a novel sensation of communication between laypeople and confessors. The Partidas do not seem to have been available between the death of Alfonso in 1284 and the moment in which they were first promulgated (with amendments) in 1348. However, around 1316, perhaps in Salamanca, a certain Martín Pérez published a Libro de las confesiones. This handbook tailors the questions to be asked to the specific penitent, mandating that the confessor consider the social, economic, and professional circumstances of the penitent. The book was widely read and copied, as well as summarized in numerous manuscripts.

It would take too long to explain how this handbook and others depend on canon law, on glosses, and on the professorial tradition of certain schools.Footnote ²⁵ The point I want to make here is that we can see in them how the microperformance of confession micromanaged legal subjects precisely through differentiation and specificity. These dialogues, which governed the microperformance of confession through specific questions and potential answers, served two functions. First, while allegedly serving the spiritual health of the penitent, they in fact served the spiritual strength of the universal church. Second, they helped confessors gain exact knowledge of their communities’ customs, habits, social relations, forms of spirituality, and so on. In short, they served knowledge as power.

Antonio García y García, the first editor of the Libro de las confesiones, used to say that Martín Pérez’s book constituted a radiography of medieval society because of the interconnection between the questions to be asked and the social, economic, or political position of the penitents. But it is not a radiography. The handbook purports to identify the actor and the social and professional roles those actors play, so that the confessor can immediately identify their lifestyles, their sins, and so on. But all of the questions are framed to identify a set of predetermined identities. The confessor must ask these specific questions because he must fit every legal subject into the handbook’s prescribed taxonomy of legal subjecthood.

As Peter Linehan wrote in his review of García y García’s edition, whatever there is in the Libro de las confesiones, it certainly does not describe the intricacies of 1316 Salamanca (or any other place, for that matter): It is, in fact, no more correct for Salamanca than for Southend-on-Sea (which, surprisingly, is a coastal city in Essex). For its entire apparatus of ideas about social, economic, political, and professional identities derives not from the people of Salamanca but from canon lawyers of the 1250s. It is not a description but a recipe. In other words, this fake radiography represents a mandate for a well-structured society in which actors are connected to actants – that is, to the narrative roles available through the canon lawyers’ dry, unnuanced understanding of narrative actions.Footnote ²⁶

Among the handbooks, the Libro de las confesiones is especially illuminating for numerous reasons. First, it is a vernacular handbook whose audience – Martín Pérez proudly explains – is composed of clerics who cannot read Latin (illiterati), and who are therefore particularly in need of correct practical and theoretical knowledge to guide their work in the confessional. (He in fact explicitly excludes those who do know Latin or may be well versed in the intricacies of canon law, rather comically dismissing them as readers.) Second, the Libro is – like confession itself – extraordinarily oral in its style: it addresses the perplexed confessor in the singular second person (tú, the singular “you”). Third, it works, in a sense, algorithmically. All dialogic procedures take the conditional form: If the penitent says X, then you say Y. This means that the confessor must not only engage in a careful analysis of the penitent before asking questions, but also that he must choose the question appropriate to the penitent’s answers. In other words, not only do the answers depend on the questions: The questions depend on the answers. Fourth, these algorithmic dialogues depend on the highly granular social distinctions the text identifies. These granular distinctions create the sensation that the Libro contains a comprehensive account of the social order generally (an account that many of the “illiterate” confessors must have realized was ill-matched to reality, but is often incredibly funny and entertaining: Who wouldn’t want a jongleur in their confessional if he looked like the jongleur in the handbook?)

Two other reasons that the Libro is especially illuminating – and especially pertinent here – have to do with its specifically legal character. First, Martín Pérez recognizes that this dialogue, which takes place in the confessionary, is essentially of a legal character. The confessionary is the threshold between earth, where the penitent lives, and heaven, from which descends the law that governs confession. Therefore, this piece of furniture – the confessional – is a sort of vessel connecting two spaces that otherwise have no physical connection. In this sense, all confession is nothing other than a rehearsal of the last judgment, in which all sins are weighed and a final sentence issued. Second, the confessor appears there not just as someone who has the capacity to give penance and absolve sins but also as a sort of preliminary judge who determines the specific legal status of the sin and – where a court must make a further determination – decides which court is the appropriate one. In the dozens of situations involving excommunication where the confessor does not have jurisdiction to make a decision and impose a penance, he must know which court has jurisdiction over the case.

6.2.c Inquisitions

Confessionary interrogations and questionnaires were in fact inseparable from the legal machinery of thirteenth- and fourteenth-century inquisitions: For instance, the inquisitions in southern France starting around 1230, when Gregory IX asked the Dominicans to do “quaedam inquisitiones” to better repress the emergence of heresies against the canons of the Fourth Lateran Council of 1215; or the grandes inquisitions of 1245 and 1246; or the inquisitions recorded by Jacques Fournier, the bishop of Pamiers, in the first quarter of the fourteenth century.Footnote ²⁷ The archives contain a detailed register of the interrogations: snippets of dialogue taking place between inquisitors and the inhabitants of places from Foix to Béziers, from Albi to Toulouse. The inquisitors register these interrogations not only as a service to the widening control of the church but because they themselves have become actors in a drama that represents the multidirectional desire of inquisitorial curiosity.Footnote ²⁸

Inquisitorial curiosity is always filled with a strange violence. It forces the inhabitants of villages (sometimes full villages) to explain what they believe, how they believe what they believe, and their lives and habits. At the same time, it attempts to reduce singular or communitarian forms of spirituality to a doctrine of beliefs. The interrogations result in few trials, but the manuscripts constitute a body of knowledge that allows the church to establish what orthodoxy means and reconfigure the Christian subject.Footnote ²⁹ In the records of the Inquisition, interrogation appears as dialogue, but also as a product of the voracious drive of the interrogator.

The dynamic of the desire of dialogue – the desire to perform dialogue – can be seen clearly in the Siete Partidas. The Third Partida is devoted to procedural law, and chapter 16 of that Partida is about interrogation. Law 26 in chapter 16 of the Third Partida regulates the interactions that produce witness deposition. After taking the oath according to the Spanish custom (Partidas 3.16.25), the judge must take the witnesses, one by one, to a separate space, away from the rest of the parties involved, with only the company of a learned notary (“algunt escribano entendido”). The Partida underscores the importance of the affective environment. The judge, it explains, must listen to the witness very calmly or mansamente (which is an adverb that can also translate as “meekly”). The judge’s countenance must inspire peace of mind and reflect absolute absence of antagonism. Likewise, the judge must remain fully engaged with the witnesses, listening to them without interrupting them and looking straight at their faces. It is in these precise and favorable conditions of controlled emotion that the witness can now speak, with the sensation that interrogation has been replaced with conversation or dialogue.

And yet a fundamental barrier separates the witness from the judge: Even though they seem to speak the same language, this language is filled with polysemic potentiality. The dialogue is profoundly diglossic. A thirteenth-century glossator of the Justinian Code puts it in a very clear way – and Alfonso also explains something similar in the Seventh Partida : “verba legis debent intelligi secundum propriam significationem, non secundum usum communem loquendi” (“the language of the law must be understood according to its technical characteristics, not according to the common usage of the words”).Footnote ³⁰ In other words, recognizing that the interrogator and interrogated do not speak the same language, the Partida insists that the judge translate the words of the witness into technical legal language to arrive at a correct understanding: one that conforms with orthodoxy.

Of course, the spoken word is not reproducible in writing. No notary could replicate it in written discourse. The spoken word is usually agrammatical: The witness testifies in solecisms, imprecisions, syntactic and semantic fragments, and so on. No matter how peaceful and emotionally stable the conditions in which the deposition takes place may be, living voice, because it is alive, is always raw. Therefore, judges, lawyers, and notaries feel the need to process it, to edit it. The initial editing takes place orally, with the judge translating immediately during the interrogation itself and then transferring this oral translation to writing. The Partida explains this rather theatrically, offering a script for the judge or notary: “Now listen to me, for I wish you to hear if I understand you well,” the judge must say,

A complex process of grammaticalization is going on – a negotiation between the judge, the notary, and the witness – in which the judge and notary transform the witness’s speech into orthodox terms, first orally, and then in writing. A process of refinement and purification results in the dead voice (vox mortua) of the text. But recognizing the role of dialogue reminds us that the dead voice is always in dialogue with the viva vox iuris: the living voice of the sovereign, the lex animata. The text is the result of not a single living voice but of the interaction of several living voices, collaborating and negotiating to produce an archivable object that can be used as proof. The process guarantees its survival and future utility for law.

6.2.d Oña v. Frías: Reconstructing the Affective Space

Few things are more boring than surveying. And yet owning land, or enjoying land by any means – rental, usufruct, colonization, and so on – is primarily a question of surveying.

Surveying is what sets in motion the pesquisa or inquisitio (hereafter, inquest) that put the Monastery of San Salvador de Oña before the city of Frías in 1280–1281.Footnote ³¹ The jurisdictions of the monastery and city are different: The monastery is an abadengo jurisdiction whose head is the abbot; Frías is a realengo jurisdiction belonging to the king. However, looking at the map of the dispute – prepared by Isabel Alfonso and Cristina Jular – we can see the extent to which the two territories overlap.Footnote ³² Many of the more than 100 witnesses summoned by the two parties to give testimony about links of dependence, customs, taxes, and infractions come from the same places. These are two powerful domains very close together, sometimes sharing the very same territory.

Looking only at the final manuscript representing the pesquisa, one might miss two important things. First, there must have been other versions of the documents that transmit this pesquisa, given the crossed references contained in the extant manuscript that do not find resolution in this manuscript.Footnote ³³ Second, there were almost certainly conversations among the witnesses that do not appear in the recorded dialogues: conversations in which the attorneys, arbiters, and witnesses discussed the possible questions in advance and decided on the kinds of answers they would provide.

Pesquisas, inquests, are slow, they take time, sometimes generations. The Oña v. Frías inquest is, visibly, a very long undertaking.Footnote ³⁴ The manuscript condenses time in a way that obscures the oceans of nonrepresentable thoughts and affects that are part of this investigation. For how long have the inhabitants of this region been talking about the inquest, and how? What did they feel about it? Did the inquest make them feel less connected to people from the same villages and populations on the other side of the dispute – people they certainly knew well, since they were neighbors and frequented the same parishes? What did they think and feel about the jurisdictional powers deployed to question them? What did they think and feel about their own answers? The manuscript is silent on such things. We might treat this as a limit to interpretation: We should say nothing of this because our only evidence is textual and documentary and we cannot speculate based on what is not in the texts or documents (argumentum ex silentio). Or we might see in these palpable silences an opportunity for interpretation: But how?

We would need to stretch the surface of the manuscript, enlarge it to register the time of the inquest: not, however, the time of the official events (these are recorded in the manuscript) but the time of the nonevents, all the time lost in translation, all the time that has fallen between the folds of the manuscript. There are various ways we might begin to imaginatively reconstruct that nonrecorded time. For instance, the various materialities of the many documents that compose the manuscript – produced in different times and places before they were bound together – can tell us much about the lives that participated in the construction of the manuscript: Binding has made them appear to be of the same age, but not to the paleographical eye, the eye of the material historian. Another way to imaginatively reconstruct that nonrecorded time – that long period during which the inquest was proceeding in the background like white noise – is dialogue itself.

We know from the Partidas that the judge both produces a particular affective space for the interrogation and translates the dialogue into orthodox legal terms. We know from handbooks like Martín Pérez’s Libro de las confesiones that confession is subject to a set of rules: that these rules are a central means of juridifying the populace, interpellating subjects into the orthodox machinery of the law, allowing law to penetrate the daily social economy of their lives. We know that a manuscript like the one recording the inquest strips the event of all of its dialogic and affective texture. But we also know that – even while the Partidas or handbooks like Pérez’s or records like that of the inquest attempt to contain affect through the control of dialogue – dialogue in the confessional or the courtroom in fact takes place in a true vernacular very different from that processed by judges and notaries. We know that, in the confessional or the courtroom, affect in fact roams freely.

Whatever their official purpose, texts like these allow us to investigate the affective space of legal dialogue. Reconstructing dialogue and affect is not easy. But to understand the legal event, we must reestablish – by stretching out the surface of the manuscript and activating our historical imagination – the order and affective spaces of the dialogue: its actual time, the play of questions and answers, the possible requests for clarification or equivocations, the questions about circumstances later redacted. (Did you see this happen? Have you heard it? When did you say you learned this? And so on.) We must reestablish the moment in which the witnessing process, by interrupting the lives of those to be questioned, also annoys them (they should be doing their shop work, or laboring, or surveying their own lands, or harvesting the wheat). In other words, we should read the documents and let them speak but – thanks to Hayden White – we know documents do not speak by themselves: They need our help.Footnote ³⁵ We need to insert ourselves into the affective space, share the threshold with the people whose names, jobs, links of dependence, and other civic details we may know but whom we do not really know because legal process has fulanized them (laundered them), turning them into a John or Jane Doe of sorts.Footnote ³⁶

In the Oña v. Frías inquest, we have a few glimpses of all this, perhaps pale ones, but nevertheless glimpses. The witness testimony presented by Frías is quick and efficient. The notaries who have recorded those depositions have limited themselves entirely to the substantia, the direct information essential to the case. The testimony presented by Oña gives us more: We see not only the witnesses’ answers – the substance of the events – but also the questions that they have been asked, and how these change from one witness to the other. Oña’s attorneys and the notaries who recorded this testimony are much more detail-oriented: They strive to make visible the law’s affective spaces doing the political and legal work they do. But even among the Frías witnesses – so sober and so soberly reported – we can see something that may show us the wider affective space of the dialogue. I will give only one example:

Domingo de Vascuñuelos mobilizes his memory, looking a few generations back – to his grandfather and to other elders in the village. The information he provides is both imprecise and precise: people talking, memories being activated, living voices becoming dead voice becoming living voices again by dint of remembrance. The inquest unveils previous dialogues, networks of information passed through family ties and beyond, communities of informants who are in permanent and ongoing dialogue outside the courtroom. In this ongoing dialogue lies a truth, sometimes represented as fama (fame, rumor): the crucial foundation of any inquisitorial investigation.Footnote ³⁸ Through those snippets of reported memory, we can begin to see the true duration of the legal proceeding and have access to elements that do not appear as actions in the document itself, but that lie in the background, appear on the threshold. We can begin to see the world of affects in which legal things happen not just as actions but as passions.