Dissertations, Theses, and Capstone Projects

Date of Degree

9-2019

Document Type

Dissertation

Degree Name

Ph.D.

Program

Latin American, Iberian and Latino Cultures

Advisor

Paul Julian Smith

Committee Members

Carlos Riobó

Oswaldo Zavala

José Calvo González

Subject Categories

Legal History | Spanish Literature

Keywords

Derecho y Literatura, Teoría narrativista del Derecho, Mateo Alemán, Guzmán de Alfarache, Imitatio Jurídica, Minas de mercurio de Almadén, Galeote, Novela Picaresca

Abstract

In 1593, the Judge Mateo Alemán was in charge of inspecting the quicksilver mines of Almadén in Spain to report on the situation of its workers, prisoners of the Crown, and galley men forced to work in the mercury exploitation. After one month of work, the assignment was cancelled, Alemán was forced to retire from his research, and his work was lost in the archives of the Habsburgs. A few years later, in 1598, Alemán published his famous best seller, El Guzmán de Alfarache.

Alemán’s legal Report, finally found and published in 1966 by Germán Bleiberg, is a narrative text with its own literary identity. The text is an example of the practical application of the new legal methodology prompted by the movement Law and Literature, either in its construction as in its further analysis. A real proof of the so called “Narrative Theory of Law”. Alemán organized his Report with the aim of conveying a story, using literary and rhetoric tools to give voices to characters who narrate their lives in texts susceptible of being analyzed as Literature. Alemán elevates the category to this people –Foucault’s infamous men or docile bodies- by granting them a voice; creating characters who actually don’t have one. The Report founds its grounding through the topic of the punishment of these galley men, because it is the consciousness on this historic reality what drives Alemán to confront his task. The judge sides against a punitive technic, half way between the Medieval and Modern periods, that uses the subjects in benefit of society, forming docile bodies, needed in times of war and threaten by loss of international political power. Alemán fights with his fragile potestas and auctoritas to establish spaces of conflict according to Lefebvre, where he defends his stance with the tools at his disposal. Literature permeates the legal Report with the evident purpose of creating consciousness and opinion. The reader therefore discovers a text susceptible to being analyzed according to the parameters of literary criticism.

Simultaneously, if Literature entered Alemán’s legal Report, the Law will do the same in the pages of his Guzmán de Alfarache to grant the novel with the legal legitimacy needed to develop two very singular purposes: the indictment against the current socio-political situation, and the social redemption –never religious or canonical- of the mistreated figure of the pícaro. This new approach of El Guzmán uses the Law to bestow a critical and committed nuance to the voice of the rogue, portraying him as a victim of his contemporaneity and advocate of his plea. The reader sees a text full of legal implications that aims to reach the specific purpose that the Report never attained. The novel uses the Law to present this new subject, product of an emergent modern society that exposes his case, using a forensic terminology, with the aim of denouncing a society and institutions that lay on corruption and morally reprehensible practices. Alemán was unsuccessful as a powerless servant of the Crown, but very successful as an author. Through his literary counter-archive work he managed to give information and light; to make public episodes that the officiality condemns to the silence of the archives; and finally, to impulse humanity, compassion and, to some extent, the truth, contributing to the formation of other kind of discourse. A new discourse that confronts the already existing one denounced by Foucault.

Both texts represent the symbiotic tension between Law and Literature, two disciplines that nourish reciprocally, by aiming to achieve the same purposes. Alemán’s legal Report is law, narrative, stories, rhetoric and poetry at the same time. The novel uses Law wisely and subversively as a natural legitimatizing tool, and exposes its formal plaint, leaving to the discretion of the reader the final verdict to the pícaro, conforming thus an alternative judicial procedure to Guzmán, this other galley man. This verdict may be more benevolent to the new character and more rigorous to the institutions where he thrives. This may be a not-guilty verdict that, although only in fiction, will present a strong resistance from inside the system and will have the virtue of creating an ideological counter-archive, driving forward the society and with it, the Law. A consciousness of Literature as an impulse of society, and also as a jurisprudential precedent, -non-legal, but enormously valid for the progress of the legislative and judicial processes- emerges from this thesis. In conclusion, if this work started arguing that Law is the source of Literature –the legal imitatio-, meaningfully, Literature also becomes a source of Law and an essential factor of its interpretation. We are confronting a new jurisprudence, an old precedent, gentle and tenacious that molds the decisions of men and women and with them, the entire society.

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