Fabricating Invisibility on Media and in the Courts


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April 28, 2022

Fabricating Invisibility on Media and in the Courts

A dilemma of democratic life

  • Axel Honneth
  • courts
  • images
  • Media
  • visibility
Photo: Monument in Pere LaChaise Cemetery Paris. From "Le Magasin Pittoresque", 1861 Le Magasin Pittoresque. Source: WikiCommons: https://commons.wikimedia.org/wiki/File:Silence_(7171406043).jpg
Photo: Monument in Pere LaChaise Cemetery Paris. From “Le Magasin Pittoresque”, 1861. Source: WikiCommons.

Images v. Visibility 

The study of visibility is not the study of images, even though it includes it, and even though Images mediate and objectify visibility. 

Images are objects. They are addressed by semantics, syntactics, semiotics (Eisenstein, Barthes, Panofsky, Peirce). 

Visibility is part of a theory of action. Visibility can be seen as the result of the action of making visible (an action which I call “monstration”).

There are examples of visibility that are not about images. For example: Why do we know so little about Jesus’ brothers? (Because a god is not meant to have kinship). Is the Muslim scarf a means of invisibility for women? (Hiding them from sight.) Or a sign of high visibility? (Like brandishing a flag in the public sphere of western countries). 

Social Institutions Devoted to Visibility

Examples: Since antiquity, theater is conceived as a viewing machine. Psychoanalysis confronts visibility to the very notion of the “un-conscious.” Art, since Marcel Duchamp is whatever is exhibited, monstrated, in a museum or gallery. Publics in general are performing media whose visibility takes the form of demonstrations, parades, festivals, fairs; and last, but not least, media, (including cinema as enactment of, and inspiration for Goffman’s theory of visibility), and also the judiciary system.

The numerous institutions that ensure visibility are often interconnected, and it is quite banal to navigate from one type of visibility to the other. Thus, the ethnographic films by Jean Rouch (“Les maitres fous.” “Lion hunting ”), which translate ritual dramaturgies were already equipped with their own visibility, into filmic visibility, and this filmic visibility, is in turn translated by Jean Genet (Les nègres) into theatrical visibility. Similarly, any court trial is a form of theater (dialogues, monologues), involving a documentary function (reconstitution of facts) and an ancient ordeal ritual (reading innocence or Guilt on the face of the accused).

Learning to Distrust Visibility = The Main Languages of Visibility

Theater and Ethology are the main languages in which visibility is discussed in our culture. Theater provides the language of “stage,” “Front region,” “back region,” “impersonation,” “mask,” and “persona.” Ethology provides the language of hunters and hunted, predators and preys. All use obscurity to hide themselves or their purposes. Their transforming of their visibility, their size, their colors, provides such notions as “camouflage” and “decoy.” Both languages express a distrust of visibility. Theater is related to the issue of pretense. Ethology is related to the issue of Deceit. 

In fact, many of the major authors who deal with visibility invite us to distrust it. This starts with Plato’s cavern, Plato’s warning against “theatrocracy,“ and continues with Marx‘s false consciousness, Freud’s critique of the misperception of the self (as opposed to the unconscious ), Debord‘s attack on the society of spectacle, Barthes’ noting that connotations are nothing but mythologies that have been made invisible, and Daniel Boorstin’s critique of the deceit inherent in “pseudo events.” And classically it is to be found in the work of Machiavelli, who knowingly initiates the prince to the art and timing of deceit, not to speak of the various religious traditions that require us to practice Iconophobia. 

Beyond the Mere Distrust of Visibility: An Exploration of the Role of Visibility in Politics

Yet amongst the many authors who addressed the issues of political visibility, some have been more interested in exploring it than in condemning it. I should mention Foucault, when he described “surveillance” as some sort of Damocles’ sword. I should mention disciples of Bourdieu who, like Nathalie Heinich, commenting on Leo Lowenthal and Violette Morin, analyzed the visibility of certain individuals in terms of a negotiable “symbolic capital,” and as the result of ‘strategies of “distinction.” Visibility here becomes a instrument of social control, or currency.

But the main explorers of visibility include first of all those who, in analyzing the public sphere, relied either implicitly or explicitly on a model in which the theatrical metaphor was not a mere invitation to distrust. Such authors include Hannah Arendt and the notion of “appearing in public”; Habermas and the very notion of “publicity”; and most of all Erwin Goffman, whose sociology is a systematic theory of society as theater. 

Among other thinkers whose influence I wish to acknowledge are Jacques Rancière and his view of politics as an interpreter’s performance, and last but not least, Axel Honneth, whose “struggle for recognition” is quite often a struggle for Visibility. 

The Importance of Axel Honneth: Regard, Respect, Recognition

Recognition is often expressed in terms of “regard” or “disregard,” a notion which originally comes from the French where it means “glance,“ “gaze,” “stare.” In other terms, to regard someone is, first of all, to look at someone. Not to be looked at, is not to be regarded, to be disregarded, to be dismissed. The same etymology of looking is also found in the word “respect.“ Disregard is exactly what the African American writer Ralph Ellison bemoans in his novel The Invisible Man. Ellison is not seeking a symbolic capital à la Bourdieu. He is seeking visibility as recognition of his worth as a human being. Thus, in terms of Ralph Ellison, Honneth would be not only a theorist of a “struggle for recognition,” but also the theorist of a “struggle for visibility.” 

The notion of “recognition” is suggestive by its very ambiguity

To recognize means “to identify” (the way you recognize someone in the street). To recognize means “to respect”(the way you respect someone’s suffering). To recognize finally means “to confess” (the way you confess a crime, or a wrong doing) 

I insist on this exploration of Axel Honneth‘s approach to visibility because I believe it is essential to the subject I wish to address. Let me summarize it in reference to a German film, which is roughly contemporary to the work of Honneth. This film was directed by Chritian Petzold and written by Harun Farucki. The main character is a woman who has survived concentration camps in which medical experiments destroyed her face. Aesthetic surgery gives her a new face and she returns to Berlin to meet her former husband, a husband, who we understand betrayed her. This husband 

  1. Does not recognize her, does not identify her, does not see her as his former wife 
  2. Does not recognize the suffering she went through, does not want to know about this suffering 
  3. Does not recognize his own role in the process that led to the deportation of his wife

This film was called “Phoenix, “ in reference to a bird capable of being born again, of being reborn from its own ashes. The story this paper will tell does not concern a “Phoenix,” but somehow the issues are the same. 

Creating and Invisibility

There are major institutions of visibility: institutions that control the modes and registers of visibility; institutions that can force visibility upon you. These institutions also have the power of equating invisibility, irrelevance and inexistence. The two institutions I will discuss are the media and the judiciary system. Their power is particularly significant when they address events. Here is a pragmatic question inspired by Austin: How do you do or undo events by making situations visible or invisible?

 Media and Invisibility 

Events are particularly vulnerable to the power of visibility. An event only exists when it is inscribed in some discourse, when it serves as the object of some conversation. An event could therefore be defined as a composite being that combines (a) a situation, and (b) the visibility of that situation, whether this visibility is simultaneous to the situation, or emerges retrospectively. 

Let me point here to Bishop Berkeley’s famous example of a tree that collapses somewhere, in the middle of a forest. This is no event unless someone is aware of the fall of the tree and shares this awareness. When two planets collide with each other, this is no event, unless there is a community of astronomers capable of discussing it. There is an event only when the collapsing tree is the potential object of an exchange.

Let us now turn to media that abstain from mentioning some event. Is it absurd to condemn these media for their silence? Can we say that without their report this could not be an event? In fact, No.

There are other ways for a situation to be shared or discussed than those offered by official media. Of course, those who share a situation. In the absence of media, can only confer on it a lesser visibility. Yet this visibility, nevertheless exists. The concerned situation is seen as a relevant by someone, and thus becomes an event. And there are also other media that confer visibility to similar situations. Not providing visibility is therefore an act. This act involves the responsibility of making invisible something that is an event. 

Judiciary System and the Notion of a Trial: Trial as Visibility

The judiciary institution is often reduced to only two of its main roles: that of rendering justice and that of applying law. But the judiciary institution has another significant role. It is one of providing visibility. A trial is first of all a collectively constructed display. This construction occurs on a social stage, in public, and according to precise norms. Facts must be reconstituted in their sequence, a sequence whose nature resembles historiography or journalism, but a sequence that differs from historiography and journalism because it is meant to emerge under our eyes.

Thus, an important thing one needs to know about a trial is not how it ends — is there an acquittal or a condemnation? — but how it reaches such a conclusion. In a way the major feature of a trial is the trial itself, what in French we call “un procés,“ a procedure that is rule-bound and that is meant to allow, before any verdict is issued, a faithful rendition of what happened. A trial is always a spectacle. Like theater, it is a machinery of vision, an optical instrument, an apparatus meant to make both itself and the situation at hand transparent. 

 Yet, there are many ways of preventing a trial from enacting this goal of transparency. A simple one is conducting the trial behind closed doors. Another consists in delegating to experts the power of deciding that certain moments of the trial should not be public. A third and radical one consists of preventing the trial from happening altogether, and thus confiscating the visibility it involves. 

 As Victor Turner has shown, such a confiscation may entail dire consequences. Like those rituals that Victor Turner used to call “social dramas” our modern trials are moments when a conflict that was made public, and escalated into a full crisis, is resolved through a public reiteration of norms and according to these norms. Of course, “social dramas” may fail; their solution to a crisis may seem unbalanced, inadequate to the norms, unfair to one of the parties.

But much worse than such a failure, there is a situation in which the crisis that triggered the trial in the first place is both made public and left unattended. This is an extreme form of disregard. Confiscating a trial is thus much worse than performing a failed social drama. The crisis at hand is not only left unsolved. It is not even recognized. Turner warns us that this lack of recognition may trigger a process of “dismemberment of society.“ It might also trigger a “struggle for recognition.”

How to Reinstate an Eliminated Visibility

Blocking a court trial from taking place, and suppressing the visibility it provides, is particularly significant when this visibility has been first denied by the media. Often those who go to court are seeking a visibility that has already been denied by the media. They are trying to use the tribunal as a second chance, as a medium, as a site of visibility. If one after the other of all sites of visibility are denied. How can a situation be known?

Internet media are dismissed as populist, conspiracy-prone, etc. Yet could one see these media as the last resource? When events are pushed in the background by being downgraded into “human interest stories,” and when court trials are cancelled, what possibility is left, but that of using social media? 

Introducing a Critical Case Study

The case study that follows tries to explore such possibilities . It is one of the torture and assassination of a French retired doctor called Sarah Halimi, and of the refusal by the court to submit her murderer to a trial. 

The story of Sarah Halimi’s assassination faced the institutions of public visibility (the media, the courts). Why did such institutions choose to fabricate invisibility? I have told the story in another paper (Dayan, D: “Cachez cet assassin que je ne saurais voir” Paris, 2022.) I’ll only summarize it here before asking questions about the how and why of this confiscated trial. 

The Halimi Trial Scandal — an example of enforced invisibility followed by a battle for visibility (a struggle for recognition?

A human interest story or an anti-Semitic execution?

Why did the media decide that a terribly significant story was no more than a “human interest story?” Everybody in France knew that the torture and assassination of Dr. Halimi was part of a long sequence of Jewish murders: Ilan Halimi (tortured and killed by those who proudly called themselves “the gang of barbarians”; children of the Toulouse Jewish school shot in the head by a jihadist; Clients of the Porte de Vincennes kosher “Hypermarket” massacred as a group, and after Sarah Hamili’s ordeal, the assassination of Mireille Knoll, and the lynching of Jeremy Cohen who died, while trying to flee a mob. 

Why was the dimension of the crime anti-Semitic rejected against the evidence of months of anti-Semitic harassment of the victim by the murderer? (It was reinstated since.)

Why was it necessary for militants and activists to mobilize in order for the murder to receive some attention? Why did they need to use op-eds and Internet media in response to the silence of major media? `

Why did the magistrate not impound the cell phones of the murderer? 

Why did the magistrate refuse to proceed to a reconstitution of the chain of events? 

Today, we know that the murderer reached the apartment of the victim, jumping from balcony to balcony at a time when the magistrates tell us he was supposedly too drugged to think clearly. We know the murderer, Mr. Kabili Traore started his acrobatic prowess from a flat that was not his own: a flat that neighbors had lent to him for the occasion. We know that there were policemen stationed at the foot of the building during more than one hour of torture and screams; and that these policemen never intervened. 

Why did they abstain from intervening? And why were the neighbors who lent their flat to the murderer not indicted as accomplices to the murder? 

Why was it necessary to constitute a multiparty parliamentary commission of investigation for all this to be known? Why were the hair-raising results of the parliamentary investigation silenced by most media? Why, going beyond mere silence, was this parliamentary commission explicitly attacked by newspapers like le Monde

Le Monde objected to the very existence of this commission, saying that it was a case of the legislative power infringing on the privileges of the judiciary power, and therefore a somehow unconstitutional action. This argument was quite interesting. It was wrong for three reasons: 

  1. Without this Parliamentary commission, the truth on the procedural omissions of the magistrate in charge would have remained unknown, preventing the public to ask whether such omissions were just mistakes resulting from mere sloppiness or expressions of bias.
  2. The existence of parliamentary commission is a recognized procedure, fully accepted by the constitution. 
  3. And rightly so, because it embodies the very principle of “the rule of law“(“état de droit”) by enabling legislators to check out how the laws they have elaborated are applied by magistrates. 

Why — most of all — was the magistrate capable of deciding the murderer would not be submitted to trial. Her argument was that the murderer was under the influence of drugs, at the moment of assassination and the victim of a crisis of temporary madness. But there was a battle between psychiatric experts on the nature of this temporary madness. (“bouffée delirante ,“ a notion that comes from the psychiatric nosography of Magnan, in the XIX century). There was disagreement as to whether a “bouffée delirante” could be diagnosed in retrospect many months later. There was also disagreement as to whether this “bouffée delirante“would exclude responsibility. Yet the court decided there would be no trial. “One does not submit a mad man to trial.” 

Why, in comparison with similar crimes, whose authors were actually submitted to a trial, even when they were under the influence of drugs, and in fact condemned, was it necessary to skip this particular trial? What was the meaning of cancelling the moment of visibility offered by a trial.?

I would suggest in conclusion that these are the kinds of questions that Axel Honneth helps us answer.

Daniel Dayan, has been a fellow of the Marcel Mauss Institute (School of Advanced Study in the Social Sciences) and a professor at the Levinas European Institute. Dayan has been Research director at CNRS-Paris, and a visiting professor at Sciences-Po and the universities of Stanford, Geneva, Tel Aviv, and Oslo. He has also been an Annenberg scholar at the University of Pennsylvania, and for many years a visiting  professor of Sociology at The New School.  He is the author of numerous books and articles, including the classic study, Media Events: The Live Broadcasting of History, co-authored with Elihu Katz.


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