Legally blind

The Guatemalan author Oswaldo Salazar burst on to the literary scene with From the Darkness, originally published in Spanish as Por el lado oscuro, recounting the story of a notorious murder in 1939. Piecing the crime together from newspaper reports culled from a press in thrall to the then authoritarian dictator Jorge Ubico, Salazar realised that – when it came to the law – the truth has a closer relationship with fiction than we may think

THERE IS A reason for the obvious paraphrase pronounced by Michel Foucault at the famous conferences he gave at the Catholic University of Río de Janeiro from 21 to 25 of May 1973. On that occasion, the French philosopher placed the truth before the discursive constructions of legal thought. Of course, coming from a Foucault post-Order of Things, we have to assume his Nietzschean critique of metaphysics, and as such, the objective and naïve possibility of the truth. So, when I say “the novel” I am referring, precisely, to the truth in the archeological sense that Foucault forged throughout his truncated career.

Historically, the human being (at least those of us who identify ourselves thus centrally or peripherally in this nebulous niche of time that we call the “West”) has doubted that which is most like or closest to him. At this point, it could be sufficient to develop a complete discourse about otherness; nevertheless, the courses taken by discourse take us, rather, along the path of words themselves and, above all, the formal configurations of words that we use to name, explain and justify the things we see, do, or want others to do. And I say that we have always doubted these things that are closer to us, because it is enough to look at the history of western thought, in order to come to a rapid accusation of that explicit will to substitute all those things that talk about the experience of daily life: myth, legend, oral tradition, and, at the individual level, memory, opinion and everything that expresses our own subjectivity from its partial perspective.

Western man has learned to live, you might say, in the middle of the road between different discourses, adopting one and reserving the other for the moments in which circumstance demands the latter’s characteristic features. Human questions, that have to do with people in their personal and social issues, for example, have been sifted through an infinity of distinct discursive networks that measure, calculate, enclose, signal, the terrain of the account that brings them together in their original condition. One of them, probably one of those that most assist the solitary and ambiguous path of the novelist, is memory. I am thinking equally about personal memory as well as that which comes from within familial tradition or from those ambits that surround individuals’ upbringing and conscious growth.

Oral tradition

In Guatemala, a country where writing and the publishing industry have still not joined forces, the oral tradition fomented within the family, barrio, town, ethnic group and even the city is of capital importance. Some things, for example criminal history, or the country’s judicial history, are not commented on unless it is in the protected bosom of the home or personal confidences. Now (but this is very recently), the rise of the tabloids dishes up day by day an immediate chronicle of the criminal atrocities that take place in Guatemala. However, the following day that crime we believed to have been the most perverse and twisted is substituted by yet another and the former is forgotten about with astonishing rapidity. Even those crimes curiously named “notorious”, over which the population demands clarification and punishment, are lost in the incessant dynamic of accumulation.

So it is that, through such alternative routes, the news of a crime remembered more by its name than by its pathological characteristics reached me. I am speaking, obviously, about the “gourd poisoning”. My parents, both born during the 14-year rule of the Ubico regime, passed on to me the ambiguous, imaginative if not fantastic, and inexact story heard by a child from grown-ups speaking about something he or she does not understand. It was about a story with no place, without a precise time, the sort of story that begins at the end and goes, more or less, in this way: “Ubico shot her … It’s because she poisoned her husband and El Hombre, Ubico, did not pardon her … they killed her … The whole of Guatemala was following the case.” And when one investigated for more details (those that are good when you need help to make situations and psychologies believable) the elderly went silent. Nothing more was known. Someone dared to invent something that he thought he had heard at a moment difficult to specify. And so the story became even more mysterious.

But then in the concrete case of the Ubico regime, the channels of information were, if not official, almost official. The government’s daily newspaper, El Liberal Progresista, carried complete information about the achievements of Señor Presidente. For its part, El Imparcial pursued the canons of exactitude and objective (forgive the tautology) impartiality. And the officialist Diario de la Policía Nacional, concerned itself with crime reports to the point of explaining, almost didactically, the horrors “corrected” by justice. So, then, in the face of the silence of older people, the search for more information about the case in question soon focused on this press that filled little by little the gaps of time, places, names, occupations, and everything that had resulted from the fantasy of those who, for years, had relied on their memory. But here things had already changed.

Discursive limits

In general, journalistic reportage seeks to gather the facts; but in the case of a crime, those “facts” are no more than the account of an incident: the discovery of a corpse, the capture of someone who declares himself innocent etc.; all of them circumstances that make us suppose there is a story behind them. In that era, journalistic reportage was not practised – as happens today – with the reconstruction of that story that the news only supposes and leaves to the imagination of the readers. Journalists, who were very scrupulous when it came to possible flights of the imagination, allowed themselves when it came to dealing with something that involved justice to be restrained with discursive limits imposed by what was then the conflicting force – the arm of justice, the national police. When read carefully, reportage of that crime is an almost exact copy of the police report that appears in the trial proceedings. This was, I imagine, politically correct for the journalists at that time: to maintain a loyalty that was surely scrutinised by Ubico’s forces of order.

Now then, a daily (even more so when it is official or officialist), when it edits a news report, chooses its words, the synthetic, shocking phrase, and the focus that is given to that register of an enigmatic act, and does so always within the framework of a morality that is nothing more than that of the society it is destined for. In the case of the gourd crime, the headline of El Imparcial was: “Entire family kills head of household with gourd full of insecticide and poisonous larvae. Innocent blamed.” In this headline is encoded the morality of a society that has at its base a family whose hierarchy is formulated on rigid paternal lines. Beneath these words what is really being communicated? The act as it really is? The opprobrium about a crime? Or rather, the anarchic sense of a criminal act that, over and above taking the life of a man, seeks to break the clear and rigid structures of an authority that is until now unquestioned? This objective “account” already brings with it, then, an interpretation like a theatre backdrop full of meaning. And from there is created a “scandal” that “outrages” a peaceful society. But this is just the beginning. Here there is nothing more than the preparation of a public opinion in favour of validating the normative limits imposed by that same society. It is here, precisely, where the final discourse – the legal – is put together.

When Foucault chooses to refer to legal thought more in formal terms that in merely discursive terms, it is not by chance. He speaks about the legal “forms”. What does this mean? In philosophy, the term “form” again takes us to the classic problems of logic and Aristotelian metaphysics. It is possible to speak of form when, like a presupposition, we judge to be real the difference between what is contained and its container. A same content can be presented with distinct containers. We are not going to discuss here if the form, as the constitutive principle of its content, naturally belongs or not to that content (in which case the form, as well as what it contains, would be unique and any other constituent formation would tend to fade in favour of that which is con-substantial with what is contained). This problem is even more superfluous when we speak of “discursive formations”. What has been said can have infinite forms of being said. What is recounted, equally, can be referred to in many forms within and even outside the strictly narrative terrain.

Now then, from its Greek beginnings, the form has an essentialist, we might say socratic, vocation. This means that it is directly linked with the project of truth, that is, with the desire to come to know once and for all, beyond any doubt, that something is what we think it is. We are saying, then, that the pretension of truth is comparable to the will to identify between thinking and the results of knowing how to see, of the method. This is how myths are reduced to philosophical arguments and how daily accounts, when they have transgressed what has been said before by the law’s preventative character, are reduced to “legal forms”. For that reason, in his Río de Janeiro conferences, Foucault tells us: “Here is the general panorama of the theme I am trying to develop: legal forms and, therefore, also their evolution in the field of penal law, as the place of origin of a determined number of forms of truth.” In his historical analysis, the French philosopher shows how some of these forms of truth are defined starting with penal practice. Two of these practices (that, from the 15th to the 18th century embraced other domains of truth, namely, geography, botany, zoology and economy, are those denominated survey (enquête) and examination.

Invented analysis

The first, which should be understood as “survey” (encuesta) in the sense of the “investigative collation of data”, has accumulated, throughout the centuries, complex techniques of inquiry in order to know who has done what, in what conditions, and at what precise moment. But this is only the beginning of the “formation” of legal truth. What is missing is the analytical step. “In the 19th century,” Foucault tells us, “very surprising forms of analysis were also, equally, invented, starting with juridical, judicial, penal problems … Such forms of analysis led to the birth of sociology, psychology, psychopathology, criminology, psychoanalysis.” And it is surprising to ascertain that these forms of analysis “were born directly linked to the formation of a determined number of political and social controls…”

On this occasion it interests me to refer, especially, to the survey (enquête), given that that is the penal practice from where the process of “formation” of the truth in a determined case begins. And that formative process, precisely through the essentialist route of the search for truth that follows, mixes up the originally narrative character of a delinquent act. The establishment of the “responsibilities” (ascribed, moreover, to individuals understood as “subjects” upon whom the law falls) is the beginning of the imposition of a causal logic upon the flow of facts, and the moment in which, also, a model of the functions of the distinct individuals who take part in the plot’s action is applied.

The survey is the lense that distorts the narrative fact in such a way that it coincides with the model foreseen by the law in which someone is a victim and another the victimiser, where there are accomplices and witnesses and an accusatory part and those who testify. And the conducting thread uniting all these voices that do not recount but merely confirm the logic of the assignment of responsibilities is (it could be no other), the truth.

The novel, for its part, when it enters facts that have become known by their legal rationality, seeks to move back to the moment in which this pact of truth between the voices of the legal discursive cast has still not been established. In sum, it seeks to return the narrative character to that which has been fragmented, frozen, renamed, reconstructed in its logical sense, by the analytical route. And thus, in this strictly aesthetic calling, the novelist hands back the ambiguity, the incomplete character, the fluidity, to the fact. But above all, what it does is strip it of “truth”.

FOUCAULT, M. (1999): Estrategias de poder. Barcelona: Paidós.
Primera plana del miércoles 12 de abril de 1939.
Foucault, Op. Cit., p. 172.
Ibid, p. 173.

Oswaldo Salazar is the author of From the Darkness and a philosopher who teaches at the Universidad Francisco Marroquín in Guatemala. He has also written extensively for newspapers. His philosophical specialism is the work of the French philosopher Michel Foucault. This essay, “The Novel and Legal Forms”, was prepared for a round table on Central American literature at Canning House in London on 12 November 2007.