The overt and striking dominion of the absolute monarch was replaced by a widespread and pervasive microphysics of power, functioning unnoticed in the most minute tasks and actions of daily existence. The focal point of this influential force was a novel ‘technology’: a collection of establishments – such as the hospital, the school, the prison, and the police force – whose disciplinary approaches and regulated examination methods resulted in the cultivation, education, and placement of a subordinate social group in accordance with the capitalist division of labor, ensuring the organized functioning of social and economic activities.
Simultaneously, the power that was conveyed through the continuous surveillance of these newly established institutions resulted in the creation of a distinct form of knowledge about the individuals they influenced. This knowledge, in turn, gave rise to novel manifestations of power and was documented in an expanding system, with photographic records serving as merely a component. In order to comprehend the significance of photography in the documentary practices of these institutions, it was imperative to revisit a comprehensive array of claims regarding the essence and position of the photograph and its overall meaning, as well as various methods and protocols for extracting and assessing ‘truth’ in communication. These entities were developed and integrated into the institutions of the rising bourgeois societies, resulting in the formation of a novel “regime of truth” and a new “regime of sense”.
The law court served as a significant avenue for examining the incorporation of photography within the framework of the’regime of truth’. Within this context, photography assumed the role of a form of evidence, which was contingent upon the prevalence of the’realist mode’ within the communicative structures of capitalist societies. However, within the same location and timeframe, photography was engaged in a separate, seemingly unconnected series of exchanges through which a multifaceted ideological conflict was resolved.
Photography, starting from the mid-nineteenth century, became the subject of a series of legal disputes and rulings that aimed to establish the legitimacy of photographic art and define the boundaries of artistic expression within the field. The legal battles were documented in several forms of media, including professional and amateur photography journals, literature, studio conversation, critics and commentators, government records, and legislative exchanges.
However, it was within the realm of legal proceedings where the challenges were most keenly presented and a resolution was most urgently pursued. The court of law, with its authority to both initiate the discussion and enforce its decision, was responsible for carrying out the challenging ideological task of distinguishing the utilitarian purpose of photography from its artistic role, which was closely tied to its commercial worth. The distinction was necessary in order to ensure that contradictory photographic practices might survive without conflict, and to address the dual challenge offered by the creation of photography to legal and aesthetic categories.
The law, as a protector of morals, became interested in the trafficking of photographic photographs at an early stage. The advent of the carte-de-visite photograph proved to be highly advantageous, as it facilitated the efficient and cost-effective creation of standardized portraits. Additionally, it facilitated the dissemination of pornographic images, leading to the rapid accumulation of substantial wealth by specific photographers within a relatively little period.
The public representatives of the class who devoured these images in private were so much offended that, by 1850, France had enacted a legislation that criminalized the sale of obscene photos in public and imposed a lengthy jail sentence for possessing negatives. However, the primary focus of the interaction between photography and juridical practice did not revolve around the role of the law as a censor. This encounter exhibited not just repressive qualities, but also demonstrated a producing nature. It served as proof of a reality inside the realm of photography, while also highlighting the potential position of photography as the property of a creative subject. The inquiry into the categorization of photography as either art or science throughout the nineteenth century was intricately linked to the governance and oversight of a rapidly expanding photographic sector.
In instances where concerns over reproduction rights emerged, legal intervention was necessary to reconcile a defense contending that the image did not qualify as a work of art and so could not be subject to limited ownership, with a prosecution presenting an opposing argument. Prior to the era of the illustrated press and pictorial journals, when the studio photographer’s main source of income was the sale of reproductions of carte-de-visite photographs of famous individuals, the question of photography’s artistic status was resolved through legal proceedings rather than through artistic debate.
The legal system holds a distinct and unique role within the capitalist social structure. For bourgeois societies, it possesses a dual existence. On one hand, it functions as a mechanism of coercion through its proclamations, restrictions, and sanctions. On the other hand, it exists as an ideology – as a conceptual framework of values that are actively practiced; as a collection of inherent rights that are asserted by the legal system and regarded as inherent, self-evident, and equitable; and as the establishment of a domain of legal entities that are summoned, organized, and subjected to the unrestricted jurisdiction of the law.
The law has a dual essential purpose: firstly, it ensures the effectiveness of production relations, and secondly, it concretely represents and legitimizes the concepts that individuals have regarding their social interactions.
The public representatives of the class who devoured these images in private were so much offended that, by 1850, France had enacted a legislation that criminalized the sale of obscene photos in public and imposed a lengthy jail sentence for possessing negatives.