Terms and Conditions: Bernard Edelman, “The Law Seized by Photography” (edited by Harun Farocki und Hanns Zischler, for Filmkritik, no. 218, February 1975)

For issue 218 (February 1975) of Filmkritik, editor Harun Farocki and his friend and comrade-in-arms, the actor, author and translator Hanns Zischler, compiled a dossier with two texts on the theory of photography translated from French: André Bazin’s essay on the “Ontology of the Photographic Image” and an excerpt from Le droit saisi par la photographie (literally: The Law Seized by Photography, translated as The Ownership of the Image for the 1979 English translation by Elizabeth Kingdom) a groundbreaking book by Marxist legal and literary scholar Bernard Edelman, published by Maspero in Paris in 1973. The chapter “La forme marchande de la création” (The commodity form of artistic creation) was translated by the author and filmmaker Renate Sami, together with Hanns Zischler. The editors Farocki and Zischler (or maybe only one of them) contributed a short introduction to this text and then added digressive “annotations”, a small collection of found texts on the history of photography and law. This compilation is now documented here in its entirety, partly because Edelman’s book from 1973 has proven to be a crucial, indispensable hinge between Marxist legal theory and the concept of the “legal form”, as developed by Yevgeny Pashukanis in the 1920s, and current discourses on the relationship between political economy, legal systems and image ontologies in thinking about the conceptual framing of Terms and Conditions. The discovery of this translation, initiated and supervised by Farocki and Zischler, is therefore of great significance for the project. Just as Edelman was able to document how bourgeois law in the 19th century “was ‘seized’ and ‘surprised’ by photography and film” (Farocki/Zischler), the question from today’s perspective is how operative and navigational, photographic and post-photographic images in the context of machine learning and “artificial intelligence” force the law to undertake a new “abstract theoretical work”. (Tom Holert)

Harun Farocki and Hanns Zischler [Introductory Notes to the German translation (by Renate Sami and Hanns Zischler) of Bernard Edelman’s Le droit saisi par la photographie (Filmkritik, no. 218, February 1975, p. 58)]:

In 1842, the large landowners in the Rhineland tried to impose a law on wood theft on the poor farmers who collected broken branches and twigs for their fires. This simple law prompted Karl Marx to write a biting pamphlet on law and politics.

Similarly, Edelman starts with a tiny detail: a photograph, and suddenly arrives at quite unexpected “views” on the law.

Your face belongs to you? And if it is photographed, who owns the image of your face? Your body? Of your house, your garden? And … your life?

A simple legal question. Recorded in thousands of lawsuits, in hundreds of judgments. Because you know: Pictures, photos, movies can be sold. But to be able to sell them, you first have to determine who the owner is.

Civil law was “seized” and “surprised” by photography and film in the 19th century. The economic reality of photography and film forced the law to solve completely unexpected legal problems. A legal solution was needed. The law produced the solution.

How? By means of abstract theoretical work. A whole system of categories constituting the ideology of law was made to dance: the person, the thing, property in itself, property in the thing, and, highest of all, the legal subject.

Edelman substantiates everything with documents: historical, economic and juridical.

Law is in the midst of “work” at the moment when it is surprised by photography, and one can see that legal ideology is indeed necessary for the functioning of law. One can even put forward the thesis that bourgeois ideology is based on juridical ideology.

A theory of juridical practice is to be developed; and even more fundamentally: the entire philosophy contained in law, which law cannot think, but by which it is dominated, is to be grasped juridically.

This theoretical procedure with law leads to the discovery of a rupture and its consequences: law is caught in the trap of its own practice, is called into question by that which it is supposed to sanction: by economic practice.

Law is therefore an important site of class conflict.