“We Don’t Ever Transgress”

Here are some leftovers from previous posts, on privacy/desire/creepshots, and Lacan:

Russell Grigg, translator of The Other Side of Psychoanalysis, on the meaning of “other side” (in French, “l’envers”): “translated here as ‘the other side,’ also carries the meaning of ‘back,’ ‘verso,’ ‘lining,’ ‘underside,’ ‘flipside,’ ‘underneath,’ ‘bad side’–connotations of the unseen, even the obscene, which ‘the other side’ in English barely suggests” (9). (This may be of some help to those of us who have struggled to understand what  Žižek means when he discusses the “obscene underside” of ideology).

The “other side” also refers to the first book Lacan read as a child: The Story of Half a Chicken. The image of half a chicken was in profile.”You didn’t see the other side, the cut one, the one where the truth probably was… What does that mean? It means the truth is hidden, but perhaps it is only absent” (56).

On law and the master’s discourse:

“Take the dominant in the master’s discourse, whose place is occupied by S1. If we called it ‘the law’ we would be doing something that has great subjective value and that would not fail to open the door to a number of interesting observations. It is certain, for example, that the law–I mean the law as articulated, that very law within whose walls we are finding shelter, this law (cette loi) that constitutes the law (Ie droit) must certainly not be taken as a homonym for what may be spoken of elsewhere under the heading of justice. On the contrary, the ambiguity and the trappings that this law adopts by virtue of the fact that it derives its authority from justice is very precisely a point on which our discourse can perhaps give a better sense of where its real resources are, I mean those that make the ambiguity possible and bring it about that law remains something that is, first and foremost, inscribed in the structure. There are not thirty-six ways to make laws, whether motivated by good intentions, justice, or not, for there are perhaps laws of structure that make it the case that the law will always be law located in this place that I am calling dominant in the master’s discourse.”


If you spend the day reading and thinking about “creepshots” and Reddit and publicity and privacy and you open up Clement and Grigg’s book to the first chapter, you might find yourself startled by the title of the essay (by Jacques-Alain Miller): “On Shame.” Startled because “shame” is the term you have been circling around, not quite able to remember how to theorize.

Privacy has a lot to do with shame. We wear clothes to cover “private parts,” and consider unwanted proximity and touching as “invasions of privacy.” Homes are the great allegorical units of privacy in American law. So much work falls to the the walls that separate the home’s inside from its outside. Things that can be done safely inside cannot be done outside. New police technologies make clear the stakes of this public/private distinction: can police spy, via infrared technology, into the home, provided that the walls are not physically breached? Shame, shamefulness, shamelessness: can we even think these terms without the conceptual anchor of the home, which in America is a building owned by a head of a family?

And, of course, we have noted that the characteristic of the Reddit creep is his shamelessness. And in the aftermath of the outing of “Violentacrez,” the central question has been that of the public shame to which he was exposed.

So the notion that Lacan, in Seminar XVII is talking about “shame” in a law school, while outside some version of “dope, guns, and fucking in the streets” is going on: maybe this should interest us.

Even more so when we come across this passage: “What analysis shows, if it shows anything at all… is very precisely the fact that we don’t ever  transgress. Sneaking around is not transgressing. Seeing a door half-open is not the same as going through it” (19).

Jacques-Alain Miller on shame: “Shame is an affect that is eminently psychoanalytic and belongs to the same series as guilt.” But shame is different than guilt. And shame seems to be the central affect of our contemporary moment: which is not to deny that we may be losing our inclination–if not our capacity–to feel ashamed. Is this the meaning of reality television? “When he wanted to locate the analytic discourse in the context of a current moment of contemporary civilization, Lacan chose to conclude his seminar with the term shame and not guilt” (12).


An important aspect of the “creepshots” case is that it is fundamentally about photography. This leads us to back to Jane Gaines, and in particular to her discussion of a famous copyright case involving the still new technology of photography in the late 19th century. In a fortuitous coincidence, 1884, the year of Picture of Dorian Gray’s publication, was also the year in which Oscar Wilde became the object of a copyright suit heard before the U.S. Supreme Court Burrow-Giles Lithographic Co. v. Sarony (42). Reading Burrow-Giles historically raises a series of questions:

What is the origin of the notion that a person, whether author or subject of the work, is ‘revealed’ in that representation? And second, how is the epistemological claim that a personality is ‘revealed’ in the work then translated into the legal claim of ownership in the work? How do we find the author in the photographic work in order to establish that he, rather than the machine, created the photograph itself? (44)

The photographic subject’s physical likeness itself, Gaines writes, “stakes out a property claim by means of its self-evidence.” Shouldn’t this subject “have property in the one thing he indisputably owns, that is, property in himself?” (44-45).

The photographer-artist’s claim to ownership of the image was not inevitable. Other contenders vied for the status of “author” of the photograph:  for example, nature (the source of light), technology (the photographic apparatus itself), or the subject photographed. Bernard Edelman’s research reveals that in France, photography took French law by surprise, and that during the “period of disequilibrium” that followed, French courts hosted debates about how to properly attribute photography.

French jurists initially dismissed out of hand the notion that the photographer might be granted the same protections for his works as those enjoyed by the painter. Gaines quotes Edelman: “For French law, the crucial question was whether or not the mechanical product could be said to have anything of ‘Man’ in it at all. An authored work (it was argued) is imbued with something of the human soul, but a machine-produced work is completely ‘soulless'” (46). But this reflex led almost immediately to its negation, as can be seen in two statements by French minister Alphonse Lamartine in the 1840s:

“It is because of the servility of photography that I am fundamentally contemptuous of this chance invention which will never be an art but which plagiarises nature by means of optics. Is the reflection of a glass on paper an art? No, it is a sunbeam caught in the instant by a  manouevre. But where is the conception of man? Where is the choice? In the crystal, perhaps. But one thing for sure, it is not in Man.”

Later, Lamartine would reverse his position: photography, he came to realize, was “better than art” because it was “a solar phenomenon in which the artist collaborates with the sun” (46). Behind this reversal, Gaines and Edelman agree, rested material motivations; the law came quickly to accept the permanence of photography, and thus legal ideology was forced to play catch-up. French lawyers struggled to create a conceptual paradigm within which a “soul” could be discovered within the mechanical act, the “soulless labor” of operating a camera. The subject (the photographer-artist) invests the photograph with something of himself, “with the combination of humanness and particularity that we have come to call the ‘original conception’”: in other words, the creative subject and his work must become “indivisible.” Photography must be rendered an act of production rather than reproduction;  what was before a “machine act of retrieval and duplication… of the real world before the camera” becomes an original work of art. “As the creative subject is brought to bear on the object before the lens,” Gaines writes, “a wholly new thing is produced from the merger of creative subject and object. And this new thing is the artistic or intellectual property” (47).

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