The place of the public notary: How the engine of the capitalist state operates through material and legal arrangements

Introduction

Stepping into a public notary immediately triggers memories of another time, a time when offices filled with objects, -seals, documents, printers, typewriters and archives, and people, -lawyers and clients coming and going on their business, was the norm. Notaries evoke images of colonial European institutions, or of early 20th century state bureaucracies in a developing country. Notaries in Colombia have the quality of bringing you to a past that is yet as current and present as ever. The house of the notary is the house of seals and stamps. It is a place with an identity of its own, full of formalities and procedures, a space of its own time.

Notaries have gained surprisingly little attention as spaces where substantive issues of law are discussed. They have gone under the radar of socio legal analysis, not only in Colombia but also in Latin American scholarship with a civil law tradition. Notaries do not deal with legal controversies such as courts or administrative bodies, but instead follow procedures and the fulfillment of legal formalities. This fact has led legal scholars to conceive notaries as uneventful, devoid or empty of law. It is believed that these are not spaces for discussing and conceptualizing substantive issues of law, but rather for following formalities and red tape procedures. In addition, Notarial law is still dominated by dogmatism in the region.

The notary public in civil law countries has powers that reach further than those of common law notaries. In Colombia, its responsibilities and powers are established by the executive branch (see Decree 960 of 1970). The notary him/herself must be a lawyer or legally trained person who is licensed by the state to perform acts in legal affairs. Notaries are vested as public officers with the authentication power of the state, and the documents they stamp serve as evidence in legal affairs to both private and public entities. Amongst his/her powers is the drafting, taking, and recording of legal instruments for private parties that, once notarized, become public documents (article 3).

This article posits the notary public as an important actor in Colombian institutional and legal architecture. It does so first by paying attention to the space of the notary as a place of legality, key in the production of legal knowledge practices, where the offices and their internal spatial arrangements, the intervention of human and non-humans actors (legal parties, the notary and his/her staff, as well as the tools used such as documents, files, stamps, etc.), the ideas reproduced and circulated, and the mundane and uninteresting events happening therein, produce a particular understanding of the law. These arrangements provide a sense of timelessness, order and permanence to the otherwise informal, spontaneous, and mutable actions of human life, thereby reaffirming law’s role in the configuration of state’s authority and legitimacy (Jeffrey, 2019).

Second, the paper analyzes the ways in which the notary, through the arrangements mentioned above, is key in recreating/articulating the spatial distinction between private and public spheres. In the notary, this distinction is blurred, revealing hybrid compositions of private acts being formalized to become intelligible to the state, and manifestations of the public materializing as private objects/acts. These mutations have spatial implications, as they rearrange and transform the relations at stake. For example, the issuing of a land title deed by the notary transforms perceptions, interactions, and spatial practices of actors on how a territory is ordered by assigning individual rights of ownership to private parties. Likewise, the formalization of a union between persons by obtaining a marriage certificate at the notary transforms societal perceptions and legal status of a household, as well as the relations within this space. However, these mutations from private to public and vice versa are not absolute. Rather, what is most interesting about the notary is the “mingling” between private and public, which as this paper suggests is facilitated by the materiality of the space of the notary itself.

By paying attention to the space of the notary and the interactions that happen therein, the paper uncovers the notary as an important institution in the development of today’s capitalism in peripheral societies of legal production (Lopez-Medina, 2004). The notary plays a key role in articulating the operations of market and state, particularly in the reproduction and legitimization of current modern liberal epistemologies, from political economy to government (Riles, 2011). The work performed at the notary, where parties and documents are individualized through seals and stamps, helps articulate western legal ontologies that gravitate around mainstream notions of persons (an individual) and things (economic assets) (Pottage and Mundy, 2004). This article tells a story that is more complex than the notary as just another instantiation of power that dissolves into bureaucratic procedures, micro-management practices (Sharma and Gupta, 2009), and the reproduction of state’ structural violence (Gupta, 2012). In fact, if one is in the lookout to account for macro social power relationships in bureaucratic institutions that perpetuate inequality, (for example, in the executive, legislative or judicial branch), one might entirely miss what happens in this proceduralist, often uninteresting, archaic and heavily formalized setting of the notary. This is precisely what makes the notary even more interesting (Silbey, 2005).

My analysis is influenced by a trend in socio legal analysis that, based on STS (Science and Technology Studies) and more so on ANT (Actor-Network-Theory) analytical and methodological insights (Levi and Valverde, 2008), proposes a radical departure from modern epistemologies, which make a sharp distinction between objects (reserved for natural science to study) and subjects or social agents (as the subject matter for the social science and the humanities) (Latour, 1993). ANT’s insights challenge the distinction between nature and culture as the cognitive framework used to explain how the world is held together. Instead, it pushes us to follow the rich web of associations between human and non-human actors and their crucial role in the production of knowledge (Law, 1992). Knowledge is then a process of “heterogeneous engineering” in which bits and pieces from the social, technical, conceptual and textual are fitted together and so converted (or “translated”) into a set of equally heterogeneous scientific products. From this perspective, legal knowledge, just like scientific knowledge, can be understood as one of the ways in which the world is assembled. ¹

One of ANTs important contributions in the study of law has been in calling attention to the material and technical aspects of law as elements worth theorizing (Riles, 2005). These elements, often taken for granted by legal scholars as uninteresting, flat or boring, play an important role in the making and operations of the law (Latour, 2010). In this way, materials such as documents, folders, forms, case files, and seals, as well as actors like legal experts (lawyers, judges), parties, buildings and offices, legal processes and ideas, assemble in particular configurations that help gain perspective of their crucial role and agency in shaping legal knowledge practices.

Works focusing on legal documents and files in the context of judicial proceedings, whether in the French Conseil d’Etat (Latour, 2010), the Dutch lower criminal court (Van Oorschot and Schinkel, 2015) or the Argentinian Supreme Court (Barrera, 2018), describe important processes of enunciation (Latour, 2010), authentication and translation (Van Oorschot and Schinkel, 2015), and authority and legitimization (Barrera, 2018). The analysis of these materials elicits a variety of responses and effects (Riles, 2006), some of which are also present in the handling of notary documents and files. However, unlike the court documents, notarial documents are not the materialization of a dispute between parties or the result of any inquisitorial proceeding. Rather, they are essentially stamped and sealed documents. Therefore, notarial seals and stamps hold a particular importance and significance. Seals and stamps (and the process they are involved in), are conceptualized in this paper as tools that have an agency in themselves and play a crucial role in the constitution of legal knowledge practices at the notary.

This study on notaries is based on three sources: First, fieldwork visits carried out to four notaries, located in Bogotá, el Socorro (Santander) and Barranquilla, during February 2008, November 2009, December 2011 and December 2015. In each of these visits, sometimes over the course of several days, officials explained to me the different processes carried out at the notary and showed me the tools they used in their everyday actions (seals, charts, stamp papers, biometric identification technology, typewriters -still used today at the notary -, books, archives, and computers). I also spent time observing their interactions with visitors undertaking different activities, from authentications of documents to the making of a land deed or will. Each of the four notaries I visited varied in size and number of staff hired. In each notary the spatial distribution was also very different but their tasks and responsibilities as well as their every-day routines were pretty much the same.

Secondly, I conducted four in depth-interviews with notaries in Bogotá, Socorro and Barranquilla, between February 2008 and June–July 2020. These interviews were done over the course of several days during or after my visits. The last in depth-interview was completed during the COVID pandemic in June-July of 2020. This last interview was finished through various sessions of voice-recorded messages via WhatsApp, as an in-person interview was difficult at that time.

Thirdly, I used my personal experiences visiting public notaries. Since 2008 when I first became interested in notaries for theoretical inquiry, I have gone countless times to a notary as any other Colombian would. Contrary to the experiences of red tape procedures and long waiting hours most people have at these places, I often find myself amazed by the particularities of these houses and their transformative potential.

From the data collected and the analysis put forward, the organization of this paper goes as follows: In the first part I provide a description of the institution of the notary in Colombia and its geographies. The second section explains why the notary is often thought of as a space of empty law. Next, I explain the ways in which the notary articulates the private and public as two spatially differentiated orders, and the hybridization and murkiness involved in this. Following, I provide a description of the role played by the notary, and in particular the effect of the notarial seal in the making of persons and things and its relationship with authority. Finally, I contest the idea of public faith as the main self-identifying feature used by notaries to differentiate themselves from the tools they use, and instead present this concept as a legal fiction that legitimizes the notary’s existence. I conclude with general remarks about the role of the notary in the Colombian legal landscape and the contributions the analysis of the notary has to offer to legal geography.

The geographies of notaries

The canvas of notaries in Colombia is wide and diverse, their geographies quite heterogeneous. The houses of the notary vary in status, which is both reflected in and a product of location. There are notaries in fancy office buildings, large colonial houses, and even shopping malls and airports. Notaries provide a public service, heavily regulated by the government through the Superintendencia de Notariado y Registro or Supernotariado (a national executive body in charge of overseeing the notaries’ activities). The Supernotariado not only authorizes a notary to move from one location to another, but also classifies notaries into categories: tier 1 notaries, usually located in main cities or state capitals; tier 2, generally in middle-sized urban centers; and tier 3, located in small towns that cover rural or semi-rural districts. ²

Whereas tier-3 notaries are often subsidized by a notarial common fund, big notaries located in main cities are able to collect large amounts of money from charging a fee or tariff for every act done at the office. The source of their income varies from a simple authentication stamp to a percentage of corporate capital in acts of incorporation from big companies that, under law, are required to formalize their legal existence through a public deed. A tier-1 notary can make up to 10,000 deeds a year, with an important fee charged for notarial services that vary according to the act’s net worth. In addition, the notaries that make the most deeds can hire up to 35 people as part of the staff that assists a single notary; this staff includes accountants, lawyers, secretaries, and real estate appraisers, amongst others.

The category of the notary usually coincides with the number of deeds made. A tier-1 notary usually makes between 1500 or 2000 deeds and up to 10,000 deeds a year; a tier-2 usually makes between 1000 to 1500 and a tier-3 less than 1000. There are a few exceptions when a tier-1 notary makes fewer deeds, and therefore receives subsidies to keep operational, as in the case of notaries located at airports. There are also tier-3 notaries making more than 2000 deeds a year from low-income government housing projects. As a notary interviewed recognizes, “money is found in deeds [as opposed to other acts such as authentications]” so it is in the notaries’ best interest to issue as many deeds as possible. The amount of revenue tier-1 notaries can make does not only help subsidize low-tier notaries, but also contributes to cover the expenses of the judiciary branch. Notaries contribute 12.5% of their earnings to the state (Law 1819 of 2016).

Under administrative law, the notary is not an institution, but an individual person. They are private individuals with public functions. The Supernotariado monitors the notarial activity (it exercises control over administrative as well as notarial acts), establishes the times of operation, sets the notarial fee or tariffs, and authorizes the notaries’ location. ³ For everything else, the notary operates as any other private office. The notary must hire its own staff and manage its own resources. It pays rent and personnel and furnishes each office. Each house of the notary gets the notary’s personal touch. Its decoration, staff, appliances and even its website vary depending on the notary’s choices. As an interviewed notary puts it: “I hire people with pretty and kind faces, so that customers feel comfortable when they come to the notary”. Another notary adds, “one has to look for a convenient location, make sure that the office is comfortable, with comfy chairs, and also that the notary is efficient and reliable, so that it becomes attractive for people to come”. To a large degree, notaries as private businesses try to attract customers and maximize profits. However, the instances in which the state intervenes (fixing fees and overseeing their activities) makes the notary a private enterprise with a certain degree of protection against market’s fluctuations.

Notaries are elected by a council made of high officials from both the executive and judicial branch (Consejo Superior de la Carrera Notarial or Consejo del Notariado). The Colombian Constitution of 1991 established that notaries should be elected by the council based on a public examination (art. 131). However, it was only until 2008 that this public examination, designed to elect notaries based on their merits, was finally regulated. The examination is based on a point system that makes it relatively easy to anticipate what candidate could win the place as notary. Having acted as notary before, having a position as a professor at law school in civil or commercial law, or having published an academic book, are all activities that are well regarded under the point system of the evaluation and makes the person a suitable candidate for the position. Only those elected through the public examination based on merit are part of the notarial tenure track (carrera notarial). Once officially named notary, after having won the examination, they can seek promotion to a higher tier notary or can apply to change notaries, often to a more profitable one, until reaching forced retirement age at 70.

Despite the constitutional mandate of 1991, notaries were elected directly by the executive branch until the 2008 regulations, either by the president or by local authorities for tier-2 or tier-3 notaries. Notaries continue to be elected by government officials for temporary placement. Those named pro tempore for the position, as in the case of death or retirement of the main notary, after a while become permanent for the position, having met a highly rewarded requirement-that of previous experience-in the notarial exam. These cases become controversial when there is competition to become an important notary, when the nominee is publicly known to be friends with the government, or his or her placement is understood as a payment for political favors. ⁴

Regardless of criticisms for electing political friends to fill positions as notaries, the notaries (if successful) do have to nourish political and social connections. Friends in particular sectors such as banking or construction are specially well regarded, as many of the legal activities done by these actors involve at some stage or another having paperwork done at the notary. For example, in the constitution of encumbrances such as mortgages over real state property or the drafting of corporate statutes. As a notary puts it: “Undoubtedly one must have good friends that seek your services, as in any other activity in life. Now, if you have amongst your golf-friends, people in the construction business, then go play golf with them. Relationships are important in this job”. To be successful as a notary is to take advantage of this privileged position and make your way up. If notaries do so, their job can become very lucrative indeed. In this way, notaries can also amass an important amount of social and political capital.

The geographies of notaries in Colombia exist in intimate relationship with the person of the notary and are embedded in constant and fluid micro negotiations of power and privilege. In the Colombian legal scenario, as in other post-colonial societies where the legitimacy of government is built upon a very particular and sophisticated array of circulation of papers and bureaucratic procedures (Hull, 2012; Mathur, 2016), the notary plays a key role in the materialization of an over legalistic public culture.

My focus will now shift from the person of the notary to engage with non-human actors such as the tools, technologies, processes, and ideas used within the space of the notary.

In the next section l discuss how the notary has been thought of as a space empty of law, arguing instead that this institution plays an important role in the production of legal knowledge practices.

Space of empty law

The notary does not have the power or jurisdiction to resolve any substantive issues of law. It does not make laws or any sort of regulation, nor does it elaborate the content of the private acts. Contrary to the judiciary, the notary does not solve any controversies in matters of law. The person or the parties voluntarily bring all the matters that come before the notary in mutual agreement. In case of controversy or dispute, the notary does not partake in the act, and it is up to the parties to bring it before a judge. This failure to discuss substantive issues of law may lead to the conclusion that notaries are spaces devoid of law. However, the discussion in this section reveals that rather than just applying legal procedures, notaries play an important role in the fulfillment of people’s substantive rights.

Over the years, notaries have incorporated new activities apart from those related to the issuance of public deeds or other private acts (e.g. birth certificates or authentications). Today, all private acts that involve the authorization of the state and do not involve controversy, like marriages or inheritance settlements, are slowly moving away from judge to notary. However, as clarified by a notary, what notaries do is different from a judge: It is not a “proceso pero un trámite”, literally, is not a process [as a judicial process] but a procedure [as a legal procedure]. A legal procedure involves a standard and legally valid course of action to have an act recognized by the state.

The notary does not make the act. It is presented before him/her, and he/she is only responsible for the formalities needed for the act to be valid. The law does not make the notary responsible for the content of the act or the manifestation of the parties. ⁵ However, it is unclear how far the notary can go into securing that the act is issued following the procedures established by law and the formalities the act requires. Some notaries argue fervidly in favor of the rule establishing their lack of responsibility for the content of the act, while others argue that notaries ought to exercise certain control over the acts they notarize.

Those in favor of a more substantial approach to the work done by the notary argue that the notary has the legal obligation to provide legal counseling to the parties and to avoid the act becoming void. ⁶ According to this position, the notary must review the content of the documents to tell parties if they fulfill all the legal requirements. The notary could go as far as to deny the act when, based on evidence before her/him or perceived by her/him in the moment of celebrating the act, results in an illegal act with null effects.

The implication of the discussion of the powers of notaries and their control over the legality of the act is important in terms of the impact such decisions have on ordinary people. Elsewhere I have described the documentary practices of campesinos drafting papers as if they were land deeds (Latorre, 2015). These documents, called cartaventas, are usually accompanied by the notary stamp authenticating the person’s name and signature. Often when I asked notaries why they would stamp such a paper knowing that campesinos mistakenly thought these papers were land deeds or had some sort of legal value when in fact they were not and had none, they used article 9, the non-responsibility-for-the-content-of-the-act rule. In their own words, they were not responsible for the content of the private act contained in the document, but only for the person’s name and signature.

In this case, as Kennedy (1975) suggests, to maintain the stark division between form and substance allows for some sort of corrupt mechanism that not only maintains the fake purity of these ideas but operates, in this case, to deceive campesinos of the actual rules to obtain a land deed. By giving these documents some sort of perceived legality, this allows the notary to collect their tariff for authenticating the document.

This same practice sounds objectionable to other notaries interviewed. In their conception, the notary has the legal obligation to inform the parties of the illegality of the act before they submit it to him/her. From the perspective of a notary explaining this situation to me, “if someone approaches the notary to sell a house, and one has the suspicion this person is incapable to complete the act because one has the impression he/she does not fully understand what is at stake, one can refuse to authorize the act”. Another notary reacting to the example of the cartaventa document adds, “if a campesino comes to me with this private document using it as a deed to sell the land, that’s repugnant to me. God! after all the structure and education one has…”. These notaries, formalist lawyers for the most part, are often times unaware that their preconceptions and believes may also influence the outcome of what private arrangements get recognized or not under the law.

Ultimately, the notary does more than just apply the legal procedure (with the formalities required) to validate the act. He/she has the power to decide upon the materialization of such acts and with it, influence the fulfillment or denial of rights to the parties involved. These decisions may determine the legal recognition of a person and his/her legal capacity to transact with assets or to inherit those assets. Regardless of how close the notary sticks to the non-responsibility-for-the-content-of-the-act rule, his/her decision on every single act that gets notarized is essential to the fulfillment of the parties’ rights. In the space of the notary, the difference between form and substance is blurred, and in many instances the form is the substance and the substance the form.

I will now explain the notary’s relationship with the conceptualization of private and public spheres within law and its ambiguous yet very important role in the characterization of this divide.

The murkiness between public and private

I have always had the feeling that notary offices sometimes look more like a community center than a legal office despite their formal arrangements and the regimented behavior inside this institutional setting. People come to the notary to formalize before the state some the most important actions in their life cycles: births, deaths, marriages, wills, adoptions, and many others. It is a space where families, friends and lawyers intermingle and where all sorts of intimate difficulties are negotiated and resolved: family feuds, infidelities, disputes over unrecognized children, financial problems, etc. At the same time, it is a space open to celebration, as reflected in parties thrown by the newly wed at the door of the notary, the faces of a couple that just bought their first house, or the joy of a father that comes to register his child (Figure 1).OPEN IN VIEWER

Such display of lively events, more suitable to other scenarios, contrasts with the formal arrangement and disciplined behavior of these houses. It is in this uneven mélange of private life events and disciplinary practices that the notary does his/her job. Visitors to the notary must undertake a range of different actions before they can culminate their transactions. When entering these houses, they carry new and old documents (old deeds, certificates of registrations, real property tax certificates, or copies of the identification card) under their arms; staff and visitors spend hours scrutinizing document drafts. To record an action at the notary, a citizen must bring their ID, leave their fingerprint and signature on the paper, and pay the sum of money required to cover the notarial fees charged for each transaction.

At the notary for every private action required by the state to get formalized there is a document that contains it. One’s success at the notary is measured by getting the right stamp or seal in the document. This time the seal is not displayed in the national coat of arms hanging on in the background wall of the notary, or as part of the national flag decorating the room. Instead, it accompanies the papers that represent important life events. Once stamped with the notary’s seal the document conveys a whole new meaning as this event is now knowledgeable to the state. At the notary, the private act has become public.

Ironically, this role of turning private actions to public ones materializes in documents, contrasting with the murkiness in the identity of the notary itself, which is neither private nor public. The law states that the notary is not a public official or an entity ascribed to the executive (as it was in the past), but a person with a public function to exercise the principle of decentralization by collaboration under administrative law. According to the law, when the state is unable to provide the specialized legal services required or its organization and the infrastructure is too costly or has the potential to become inefficient under public management, it can delegate this function to a private individual, in this case the notary. ⁷ However, in practice the status of the notary as a private party with public functions has multiple legal exceptions: notary public are elected by a public body (Consejo de Notariado); have a tenure track system (carrera notarial) as public officials; their activities are monitored by an executive entity (the Supernotariado); they are responsible for crimes committed by public officers; and they could be subject to administrative investigation for their conduct.

Notaries, having so many similarities with public officials and as important as they are to the state, are not fully considered part of the state. As argued by a notary, “we exercise a public function, but we are not paid by the state, so there is not a labor relationship with subordination”. Similarly, as some of them appeal to only intervening on matters of procedure and not on issues of substantive law, they conceptualize their position as not playing a substantial role in the characterization of private and public orders. They prefer to see themselves as counselors or intermediaries, neither private individuals nor the state. It is as if the notary would consciously ignore the important role he/she has in the configuration of key legal ideas related to the fulfillment of right for individuals and the legitimation of the state’s authority. Furthermore, the ambiguous figure of the notary, the bearer of the public faith that provides legal weight to private acts (in Spanish, fedatario), becomes an external source of validation and legitimacy of the state before its citizens. In this sense, the state’s source of legitimacy does not come from within it but from a private actor with public powers.

Despite the murkiness of the status of the notary and the complex operations involved in making private acts public, through the stamping of the seal on the document the relationship between private and public orders is materialized. Where to draw the line separating the public and private orders, or even whether it makes sense to draw a line, is a question that has captured the imagination of many legal scholars in many areas of law. ⁸ What is relevant for the purpose of this article is to call attention to the fact that such relationship between private and public orders is performed at the level of the micro-interactions between parties that occur at the notary, and through the techniques and tools used within this space, such as the stamping and sealing of documents. The document, once stamped, becomes the agreement under which people attending the notary maintain and accept the cognitive constructions fabricated by the law of the division between public and private orders.

Even though the processes undertaken at the notary help reproduce both private and public orders, there are always practices that resist or subvert these configurations. The cartaventa written by campesinos to transfer land, or the grandmothers registering their grandchildren as their own, are examples of how these distinctions between private and public are obviated or bypassed. Notaries constitute a trademark of the Colombian legal landscape. Their murky character and the flaws in their operations and processes help to maintain them as porous, heterogeneous, uneven and creative legal spaces (Painter, 2006).

In the next section, I will explain how through the operations of the notary the state is able to create its citizens, properties and build its authority.

Making persons and things: Making of authority

As Christian Lund explains, what is at stake behind the social production of both citizenship and property is not only a direct claim to membership of polities or access to resources, but the constitution of political authority. Therefore, concrete struggles over property and citizenship enable understandings of the dynamics of authority or state formation (Lund, 2016: 1201). However, such dynamics do not only happen in relation to the emergence of new political identities, forms of authority or relations of control over the production of property rights (Lund, 2016). Rather, the relationships that make citizenship, property and authority also result from conceptualizations of the person and the thing that have become essentialized under western legal thought (Pottage and Mundy, 2004). Until now we have seen how the notaries’ stamping of the seal on documents becomes essential to recreate the public-private configuration. However, it also allows for a double process that develops and consolidates. The notary public shows how in these spaces there are particular assemblages of human and non-human actors that consolidate both citizenship and property, and their constitutive role in the production and maintenance of state’s authority. For the analysis of this section, I draw from Marilyn Strathern’s ideas on individuation and reification (1999).

According to Strathern, in contrast to that of persons from Papua New Guinea, the individualized Euro-American person is recognizable in the individualized body with its unique characteristics, especially of the face. “[The notion of portrait draws on this convention] insofar as a principal medium is precisely the individual’s body features. When other kinds of references are made to bodily character, they may be used as substitutes for body representations” (1999: 172). This operation of recognizing someone by their bodily features, in particular that of the face, is what the notary does when, for example, he/she looks at the Photo ID to authenticate a private act condensed in a document. The notary determines that the photograph is that of the person before him/her. Several other features complement the process: the name, signature, fingerprint, and ID number. Together, they allow the notary to affirm that the person described in the document matches the physical characteristics seen in the person. Similarly, in deeds documents, the individuation of the person through his/her bodily features is also present. Parties coming before the notary are fully identified by their name, residence, confirmation of having attained the required legal age, marital status, and identification number. Such characteristics serve as coordinates to locate each individual person that is taking part in the event recorded in the deed.

As for things such as land, the formalization of the transaction to sell and purchase land through the deed recreates Strathern’s second process, that of reification. ⁹ Like persons, land as the object of the transaction is not defined in the deed title by its internal qualities, such as the number of things found on it, inanimate elements (rocks, air or water), or animated elements (flora and fauna). Land is also not defined by the constitutive elements of nature that compose land (oxygen, nitrogen, or carbon) or by the type of biological relationships taking place on the plot of land (kinship relations, plant-human relations, or animal-human relationships, among others). Rather, land is individualized using the same relational techniques that we use to distinguish ourselves as individuals (by our external features and in relation to others). The plot is distinguished relative to other plots of land by establishing its boundaries and limits. In the land deed the plot’s limits, its dimensions, and its previous legal history, are techniques used to individuate land; land that later can become unified or subdivided.

At the notary, just as we use devices such as signatures, photos, and ID cards to distinguish ourselves, for land documents such as previous deed titles, property registration recordings (a device very similar to a person’s medical record), and property tax certificates are used.

The formalization of life events at the notary does not only make for the individualization of parties and things. Through these operations the parties mutually recognize each other and recognize the state as a different kind of person. For such recognition to take place, a differentiation between persons must be clearly enforced. Seals are the techniques that guarantee formal individuation and ultimately allow for this kind of mutual recognition. Primarily, between the parties who are citizens involved in private relationships. Secondly, a recognition of the state and the institutional and legal arrangements that constitute it as a different kind of person with different capacities and knowledge.

The authority granted to the state stems precisely from recognizing it as a different kind of person bearing a different kind of seal, a seal that is gained by submitting our bodily presence to the spatial arrangement of the notary. In there, people acquire a new sense of perception of what is significant (Clarkson, 2014). Parties who bring before the notary some of their most intimate events are required to partake in the formalization regime taking place at these offices. For instance, oaths are taken with observance to formal requirements. In some cases, documents are read out loud in presence of the different parties, witnesses, and the notary; everyone must record their presence in the event. Dress codes are expected to be followed by attendants (Bourdieu, 1986).

Such arrangements grant the state authority and allow the notary, as representative of the state, to authorize and give a binding force to this relationship between persons. After this experience, the seal stamped by the notary on the paper is of a different material and conceptual quality. It has not only made the transaction knowledgeable to the state, but it has served to build its legitimacy and authority.

I will now explain the relationship between the notary and the instrument (the sealed document). The notary places tremendous importance on the instrument and yet can distance him/herself from the instrument’s own agency by using the fiction of public faith.

The instrument: The fiction of certainty and security

The actions of the notary and those of the staff revolve around the making of “the instrument”, the document notaries stamp with a seal. When in conversation with a notary, I asked him about the close relationship I observed between the notary and the “instrument”, he was quick to add to my observation with the following argument, “The instrument [pointing to a document], call it however you like: a document, a piece of clay, a papyrus, or a microchip, can change. The instrument, the technology, can change over time, but who is going to guarantee that the instrument is authentic, who is going to provide the parties with the certainty that what is contained there is truly the original, or that the original is kept in x location? The instrument can change, the technology can change, but the notary remains. The notary is the only one who could provide legal certainty and security to the act.”

Public faith is defined as the function given by the state to the notary to give faith to the authenticity of private acts that the notary exercises on its behalf by constitutional mandate and by virtue of the cooperation between private and public sector. (Constitutional Court, Decision C-1508 of 2000). Therefore, the public faith invested in notaries allows the law to assume that both the manifestations of the notary and those of the parties before the notary, contained in sealed documents, are true and legally valid. As such, the public faith could be conceptualized as a legal fiction, external to law itself but core in its functioning (Fuller, 1930).

A legal fiction can be defined as a factual statement propounded with a complete or partial consciousness of its falsity (Fuller, 1930: 369). This is not to attest that the act to which the notary provides public faith is false, but instead that the action to which the notary provides public faith makes the act true and factual in the legal world. It is performatively real, in the sense that it is through a long chain of interactions between actors, such as state and non-state institutions (e.g. banks), other notaries, legal experts, documents and stamps, amongst others, that the fact is assembled as true and real.

It is no wonder that the notary is inclined to see so many phenomena (informal land ownership, for example) as non-existent if they are not properly notarized by his/her seal. Moreover, the idea of conceiving the public faith of the notary as unattached from the instrument (whether it is a sealed document or an encrypted file), as the notary suggested, helps maintain the fiction that the notary, the bearer of public faith, by appearing to be completely detached from the instruments used, is the only one who could attest to the certainty and security of the act.

Public faith, as an abstract faculty only invested in the person of the notary and the document as mere tool are important elements in these assemblages that determine which facts exist and are valid. Instead of helping order social, economic, or political phenomena public faith, like other legal fictions, constitute those phenomena by providing the frames through which social actors (the notary, the lawyer, the parties) apprehend social realities (Riles et al., 2010). Therefore, public faith rather than an abstract quality invested in notaries is part of a very particular configuration of actors, ideas, and artifacts that in relation with one another create the realities to which notaries attest.

In this configuration the notary experiences certain inherent indeterminacies while trying to preserve the authenticity and certainty contained in the instrument, as well as maintaining the fiction of public faith. For example, the instrument could be forged or the notary could be a corrupt official that provides public faith to illegal acts, a practice seen in Colombia, much to the discredit of notaries. ¹⁰ These indeterminacies that show the artificial character of such configurations are usually dealt with scorn or excess by notaries. The use of tools such as photographs, barcodes, fingerprints, electronic signatures, or serial numbers self-reproduce profusely and/or become more sophisticated (now biometric technology and blockchain systems). However, their use never renders the complete knowledge of the person, internal motives or intrinsic qualities not visible or distinguished by these devices. Similarly, for the case of land, the deed that allows for its individuation into plots by setting the boundaries on the paper never renders the complete knowledge of the land itself. Notaries often go into real trouble determining the boundaries of a plot, especially of those found in old deed documents where natural boundaries move or change over time. Overall, despite the notary’s efforts to provide the act with certainty, the person, the thing, or the transaction that the document intends to represent is never fully captured nor the complete accuracy of tool use guaranteed.

The importance of the instrument: Sealing the union

Regardless of these discrepancies, notaries are particularly sensitive to safeguard the tools they use. The notary’s seal must always be kept at the notary house. The state requires notaries to keep the documents and deeds they make filed, bound and stored in a safe place. They are often stowed in special rooms, some of which are temperature-controlled, away from dust and humidity. An expert in sewing and binding documents must go to the notary to organize and bind the deed documents together into books. Each book containing deeds must be opened and closed within an official minute. Despite the fact that these documents contain private acts, and that the parties must pay a fee to obtain the deed, these documents are state property. The original must never leave the house of the notary and the notary oversees safekeeping.

Notaries are aware of the value these instruments carry; deeds are especially cared for as they can represent money. ¹¹ However, there is something more valuable in these sealed documents. When we partake in the formalization practices that happen in these houses, we implicitly maintain and accept the cognitive constructions fabricated by law. By gaining the document stamped with the notarial seal we give in to recognize the world before us as modelled by law. We can now view, almost instinctively, the interrelation of both public and private orders, the individuation of persons and things, and the state’s authority and the legitimacy provided to it by the notary, the bearer of public faith. All these phenomena lay the foundations for the market and the state to be understood not as the product of particular legal, social, and technical arrangements but as pre-existing entities. In other words, the imprinted image left by the seal stamped in the document is now our mental imprint, upon which our own knowledge practices are modeled and acted. That is the true value of the instrument, and that is why it is so carefully protected.

Conclusion

How to approach the notary in a post-colonial society immersed in an over legalistic public culture, where the legitimacy of the state feeds of and is built upon papers and bureaucratic procedures? Contrary to my sense of amazement when stepping inside one of these houses, the notary has received heavy criticism from different sides of the political spectrum. For example, for free-economy enthusiasts notaries are an archaic institution aimed at maintaining the status quo, blocking access to ownership and hampering capital growth (Aliaga et al., 2007). For regulatory-state supporters the notary is seen as a hotspot for privilege and profit, exploiting a public service that should be accessible to all citizens (Avella et al., 2020). For critics from both sides, I hope to have made a compelling argument that these places deserve much more attention for theoretical inquiry. Examination of the work done at these houses helps us better understand the functioning of the capitalist state for several reasons.

The notary is a place of legality key in the production of legal knowledge practices. Through its observation and analysis, we can appreciate the arrangement of different mechanisms through which law is productive of space and space shapes understandings of the legitimacy and the importance of law. To understand these conceptualizations fabricated by law with spatial implications, this paper uses the insights from STS and ANT. These approaches expand our comprehension of both law and space to include the agency and role of actors other than humans and human agency in the configuration of world events. They revisit our understanding of materiality and highlight the constant, hybrid (human/non-human) and complex process of becoming.

In studies that focus on the relationship between law and space, law can be treated in a rather disembodied and detached way (although not always). The analysis advanced in this paper makes us rethink the presence of law in important ways. First, it focuses on the concrete micro-level interactions that happen between parties: ideas, tools, techniques and practices (e.g. the stamping and sealing of documents) that reveal how entities such as the person, the asset, or the state are the result of particular configurations of diverse materials (not simply human) from the legal, the social and the technical. Secondly, it highlights the relational quality of the mutual constitution of law and materiality to disrupt the perceived coherence, order and stabilizing character that law brings to the configuration of these entities. (Jeffrey, 2019: 568).

Interestingly, the notary is able the disguise him/herself of the important role he/she plays in articulating some of these configurations. For example, reinforcing the idea that the notary only intervenes on matters of procedure and not on issues of substantive law or their self-identification as counselors or intermediaries, neither a private individual nor the state. These traits of the role of the notary public are part of the assemblages of actors, ideas, and tools that in relation with one another create the realities to which the notary and those visiting these houses respond to and recreate.

The notary is key in the formalization of our most private acts (births, dead certificates, marriages). Through him/her, by his/her action of stamping the notary’s seal on the document, these acts become public, knowledgeable to the state and to other entities. Once the document is stamped, it becomes the agreement under which people attending the notary maintain and accept the cognitive constructions fabricated by the law, dividing both public and private orders. By the action of stamping the seal and making the act public, the relationships at stake might also be transformed. For example, the issuing of a deed might change perceptions and practices of actors regarding the territory, or a marriage certificate might transform societal perceptions, legal status of a household, and even relations within this space. Nonetheless, this relationship between public and private orders is a complex and murky one.

In addition, concrete legal knowledge practices at the notary illustrate the emergence of both persons, and things. These two categories are central in articulating the relationships between citizenship, property, and authority. At the notary, persons and things are constituted through the micro material and legal processes of individuation and reification. It is in these processes, in which both human and non-human actors play a key role, as well as in the performative and aesthetics practices occurring at the notary, that the state’s authority is validated and legitimized.

The importance of the instrument and the concept of public faith stand out as key elements in the assemblages that constitute the reality to which the notary attests. Despite the tremendous importance notaries place on the instrument, the focus is on the concept of public faith rather than in the tools used; they are considered to be devices without agency in themselves. Public faith allows the notary to fictionally distance his/herself from the agency and performativity of the instrument and allows him/her to remain as the key figure in the process. The notary is only one who could attest to the certainty and security of the act, the bearer of public faith.

However, as the Colombian legal landscape remains, these assemblages are always contingent. Citizens might not entirely partake in the private public/division enacted at the notary. The sealed document could simply be forged, or the notary can provide public faith to a false act. The notary seems unaware these devices and techniques upon which he/she relies never render the complete knowledge of the person, the asset, or the transaction. The notary responds to these inherent contingencies either with scorn, not acknowledging the world outside the office, or with a profuse use of seal, stamps, and other more advance tools. However, as I have illustrated, these legal constructions are as lively, temporal and variable as the reality that the notary attests to. Yet, the notary succeeds in maintaining them as stable and unquestionable as possible. Hidden in the apparently boring and procedural work done at these houses is where the real importance of the notary public is found.