We know people with prodigious memories, and yet, lacking in the slightest practical sense and what is more, in the slightest logical intelligence. For their part, we also know people with ephemeral memories, as expired as a day's flower, and, on the other hand, can demonstrate an unusual capacity for reasoning. In turn, we ourselves are testimony to how much or little our memory hides, or, conversely, how stubborn and persistent forgetting is. For this reason, when we forget, memory decrepitates, we put an end to part of our lived existence and we believe that something is decomposing. It is a kind of gradual death, a shadow of progressive extension that gangrenates every room in the brain where our past is hidden. I have always thought that when we talk about memory, we really want to talk about forgetting. We forget names of people, we forget faces, we forget ephemeris. But there was a man, perhaps only one, "Funes the memory man" to whom Borges's fiction granted him an apparent privilege, that of remembering everything that has been with the precision of a geometer.
I alone have more memories than all men have had since the world began. /…/ My memory, sir, is like a garbage dump”. This is how Ireneo Funes speaks, prostrate in his humid room in Fray Bentos (Uruguay), with no option of leaving the room as a result of an accident on horseback, but carrying in his memory everything that has happened and apprehended in the years of life from him In 1886, Funes had created a holistic numbering system, in which each word had a specific sign. He even defied the rules of abstraction and categorization, to search, as Locke had already tried in the twelfth century, for a language so that each object in its own individuality, each stone, each cloud or each strand of grass, would have a name. own: “It was not only difficult for him to understand that the generic symbol /dog/ encompassed disparate individuals of different sizes and different shapes; he was annoyed that the dog at three-fourteen (seen in profile) had the same name as the dog at three-fifteen (seen from the front)”. It is difficult not to smile initially when reading this story, but, in successive re-readings, a natural feeling of helplessness emerges that I will try to describe. Borges, through his unique character, reveals a suspicion that is more than evident and, not for this reason, less verbalized: reality is made up of millions of fragments of materiality and knowledge, scattered without structure, my method, through space and through the world. time, in a preternatural disorder where man has to look for a common place for all of them that gives meaning and even virtue to everything that is contemplated and experienced. Therefore, first there was chaos and then order, or at least order is the logical aspiration of those who seek to order and group knowledge into rational categories. For this reason, Borges is suspicious of Ireneo's ability to think, despite being the omniscient bearer of everything experienced: “Thinking is forgetting differences, it is generalizing, abstracting. In the crowded world of Funes there were only details, almost immediate”. And therein lies the great paradox, Borges again: Funes is probably the dumbest man in the world.
"How all things are interwoven to form the whole, working and living one in the other!" This time it is Goethe's Faust that speaks, and it serves as a starting point for trying to understand how legal systems are built through his General Theory, through the sedimentation of a corpus of notions and principles, from which make sense of the multiple responses required by each assumption and each caso. In the world of Law, and fundamentally in Universities, students feel comfortable in the study of the special parts, abounding in the advantages that memorization of the precept grants, an uncritical and unprejudiced reading of the norm with the only desire to pass after a while a subject. It has been said, and there is no lack of reason, that the study of Law is based on memory, not on the inductive and deductive application of the legal system to reality, seeking the very meaning of justice. There are students and then professionals of the Law who, like Funes, amaze with their precise memory of each article and each law. On the other hand, they often wander unable to understand a legal theory or to develop a scientific discourse, because abstraction is foreign to them. There are tax experts who can endlessly recite an entire tax law, with all its onerous modifications, and yet fail to understand what fiscal policy objectives are being pursued with those rules. And there are also criminal lawyers, commercial lawyers, civil lawyers and even administrators who suffer from the same pathology. There are and that's it. It is verifiable that it is becoming more and more strange for new practitioners of Law to find abstract notions of identity and causality.
But I begin to think that more and more are having trouble finding the common root that gives category to concrete facts, the result of the motorized sectorization of Law in modern times. In a seminar that I have been invited to participate in on the collaborative economy -a tricky name at a time when the forms have defeated the substance, with the risks to freedom of thought that this clumsy involution has-, and amazed by the adamism that some they want to confer on businesses that are formalized through new technologies, the first thing I always do is remember that the exchange, the sale, the lease or the tenant are very old legal institutions, and that the wheel was invented 3.500 years before the birth of Christ. Of course, what changes are the platforms and spaces in which wills are agreed and deals are closed, and it is there where you have to be agile and discover all the possibilities to allow the market, the free market, to operate without prejudice and without interference. But there must be someone who, under the lee of every business on the Internet, seeks an abstraction to the devastating casuistry, who finds an ultimate meaning to all that tinderbox of incoherent realities. There may be legal Funes who know Supreme Court rulings and even unborn bills by heart, since they are photographic hunters of reality, but it will be useless if there are no creators of abstractions or joint ideas. Borges in "The Other Death" when referring to the excess of specialization, to what in philosophy is called pantonomy, expresses that "in the Summa Theológica it is denied that God can make the past not have been", from where Ireneo will be able to capture in his immense well of memory all things and causes. Law, as Science, has to provide categories and notions to those causes and effects, to those realities, until turning them into a General Theory. Because, after all, in the meantime normative modification, what will always remain will be that Theory that, by itself, is barely changeable. If not, even Funes himself recognizes it in a moment of lucidity, a faithful antinomy of Borges' style: "My memory, sir, is like a garbage dump."
Fragmented knowledge and the impossibility of its reflective apprehension by a single individual is the pandemic of the modern world, not only of the world of Law. The modern citizen has become a spectator who is overwhelmed at every moment by news, reports and analysis, without the possibility of developing a minimally reflective thought. For this reason, the new man is a mixture of Nietzsche's wild man and Benjamin's lazy bigard. And for this very reason, as the new man is increasingly reluctant to reflect on theories and intellectual abstractions, he seeks accommodation in the most vulgar gregariousness, selecting those news and information that best serve the spirit of the hive that he has chosen. Imagine, speaking from memory, that Funes wanted to take sides with an ideological faction, one of those that drink from the historical reckoning that our country likes so much. It would be categorically impossible for him to do so, because whoever has all the information, all the material inferences about what has happened, should be incapable not only of the most rudimentary intellectual abstractions, but also of applying moral criteria about good and evil. Perhaps there should be a day when in this country all citizens of Funes would give our knowledge, and even our phobias and factional conjectures, so that he would treasure them as only he did. Modern man “carries around with him an enormous mass of indigestible pebbles that sometimes make a thud in his gut” (Nietzsche). And more and more those stones sound.
And, I did not want to miss the opportunity, to talk about "the curse of Funes", because, and you know it, Funes exists and his name is not Ireneo but Internet. The Internet does not forget. But there is a big difference with Ireneo and that is that while he only perceived and stored empirically demonstrable facts, the Internet also harbors fallacies and lies everywhere. But not everything is online either, for those who have been lost in it for some years. Funes came to plan two great projects: an infinite vocabulary for the natural series of numbers and a useless mental catalog of all the images in memory. “Two considerations dissuaded him: the awareness that the task was interminable, the awareness that it was useless. He thought that at the time of death he would not have finished classifying all the childhood memories. We must rule out as impossible that order is ever imposed on the network, since immediacy has come to stay, with all its advantages but also with all its drawbacks, perhaps the most important being the lack of veracity of much information and the damage that it can cause. And this is where Funes (Internet) and Law (legal data protection) meet again. And so the Right to be Forgotten arises, because, who would have said it, we also have the right to be forgotten about us. Liberal word.