- Theorizing the Language of Law
Law transforms reality, de iure and de facto, inasmuch as it attempts to bridge the gap between that which is done de facto and that which is regulated de iure. It is standard practice, for Alfonso X of Castile,1 to reinvent the means of writing the law. He does not limit himself to compiling or revising existing legal statutes; rather, he elevates the corpus of the law to the level of juridical science. Dominating the meaning of the word—its hermeneutics and its relation to truth, lies, rhetoric, history, and poetry—is also the key to dominating juridical discourse itself and its capacity for creating certainty. Or, at least, for controlling uncertainty. Uncertainty, that is to say, the ambiguity in the interpretation of the relationship between words and things, appears to be one of the targets of Alfonsine juridical science.
It is in the institutions that one can best study this desire for control. In particular, the need for control becomes visible in the court and the places related to it (the palace, chamber, or bedroom), codified by the law in order to put justice into action, in the representation of power, in cultural exchange, in education, and in recreation. Here legislation acquires a special significance with respect to the word, to narration, and to rhetoric. This is a philological problem: How does one compose and administer a text capable of controlling its own interpretation? How does one transpose this same dynamic to the institutions? How does one transmit this notion from the institution to those who inhabit it and who are, after all, the subjects of the legal science?
It is therefore fitting to examine legislation about legal discourse, which is, in itself, the theory of law—not, however, in its abstract aspects but rather in the concrete elements of the formation of a legal vocabulary, in the way in which words, whose semantic and hermeneutic problems are clear, give life to this legal vocabulary. How is legal discourse constructed? In what way is it transmitted? What are the consequences of its dissemination? In what way is the law in charge of words, in particular, those expressed in the institutions?
Perhaps the problem is philological, in the sense supposed by Giambattista Vico. Vico, in his Principi per una scienza nuova [1: 10] proposed that the study of philosophy, as a science of truth could not exist independently without a philology, the origin of the conscience of certainty (coscienza del certo). Attaching myself, then, to this idea of certainty (although not, of course, from Vico’s perspective) throughout this study I shall call “the space of certainty” the theoretical and conceptual construction (which is of both a philological and textual character) stipulated by the legislator in an attempt to control the distinct concepts related to the legal word, its institutional statute and its legal, moral, and cultural hermeneutics. I shall thus attempt to understand the meaning of this space of certainty, in what way it has been constructed, and how it affects legal, political, social, and cultural mechanisms. [End Page 64]
Law and King
In the first title of the first Partida, Alfonso outlines the virtues of the laws.2 In addition, this first law discusses the overall structure of the Siete partidas, as if, in fact, they were nothing more than a lengthy and virtuous discourse about the law. It makes sense as the Partidas are not only a legal code capable of being enforced but also an enormous manual on legal theory. The law(s) and legal doctrine, then, come together to form the first expression of legal science. Going further than compilations of Roman law such as the Liber augustalis,3 further than the scientific expressions of jurisprudence of specialists from Bologna, the Île-de-France, and Orleans utroque iure,4 the Partidas—and I should like to insist on this—can be considered a constitutional legal text. In this sense the Partidas attempts to regulate the actual material from which the laws are made: language. Put another way, the text of the Partidas is at once legality, establishment, and discussion of legal language...