1.14 / May Days

Social Work: Politics, Police, and the Law in Art, Part 3

By Matthew David Rana May 5, 2010
Patrick Bernier and Olive Martin. X&Y vs. France: The Case of a Legal Precedent at the Ecole des Beaux-Arts in Paris, 2007. Photo: Bernier and Martin.

Unmarking Equality’s Others: Bernier and Martin’s X&Y vs. France 

Who is the subject of the rights of man?—Jacques Rancière1

Rarely have I felt more vulnerable than in the fall of 2007 at the Oakland International Airport, when I was informed by a Southwest Airlines ticketing agent that I had been placed on the Transportation Security Administration’s “watch list.” Subject to extra screening, I boarded the plane that day under scrutiny not because of a bad matching algorithm or a vague entry for another selectee. My name was on that list because my father, a legal citizen of the United States born in Pakistan, was on the list as well. That day, my narrative was suddenly rewritten according to the “us” vs. “them” endgame of the war on terror. I was marked, forced into view as being somehow foreign, suspicious and a potential threat to be sent away.

I was seized by an intuition of what Michel Foucault describes as the power of governing agencies over life: the capacity of the State to “make live and let die.”2 Between the arbitrary exercise of authority and my resistance to it, I was confronted with the fact that I did not have full control over how I “play” on the stages of security and nationality, citizen and non-citizen, or the legitimating and de-legitimating forms of visibility that constitute where and how we can legally exist.                

X&Y vs. France: The Case of a Legal Precedent is a work begun in 2007 by French artists Patrick Bernier and Olive Martin, in collaboration with two lawyers: Sylvia Preuss-Laussinotte, a specialist in immigration law; and Sébastien Canevet, a specialist in intellectual property. Together they developed a legal argument whereby undocumented immigrants, posited as co-authors and guardians of immaterial, site-specific artworks, can avoid deportation through the application of laws relating to intellectual property and cultural heritage. The work consists primarily of the two lawyers performing the closing argument of a fictional deportation hearing before an audience, who have been given a copy of the dossier plaidoirie, the brief customarily given to presiding judges containing the legal precedents for the argument being presented. Throughout their performance, the two lawyers draw on human rights frameworks such as the right to participate in the cultural life of a community, legal definitions of immaterial artworks (taken from artists such as Robert Barry and Lawrence Weiner), and various precedents related to the case. These include a decision relating to author’s rights in which the Russian composer Frederic Chopin was granted posthumous citizenship due to the fact that much of his oeuvre was produced in France.3

Although each performance of X&Y vs. France varies slightly depending on the venue and its audience, in substance, the argument remains the same.4 It can be summarized as follows: a French/European artist Y is co-author with an undocumented immigrant X of a site-specific dematerialized artwork, of which X is the sole guardian. The integrity of the artwork depends both on its location, France, and on X’s ongoing interpretation of it. As the carrier of a “work of the mind, bearing the mark of the author’s personality,” X is entrusted with this work for life, and another seventy-five years after death, at which time the work can ostensibly enter the public domain. To deport X would thus destroy the work, thereby violating the right of the French/European artist Y to prevent unauthorized alteration and dissemination of his/her intellectual property. As a further reflection of the case’s framework, X&Y vs. France is considered by the artists to be an immaterial artwork in the form of an oral argument, of which the two lawyers are also the guardians and interpreters.5 As a result, the lawyers periodically shift from defending their anonymous clients to defending themselves, making their arguments in the first person. After each lawyer makes their concluding remarks, they, along with the artists, open the floor to the audience for questions and extended discussion.

The argument has never been tested in a court of law and while the artists have no intention of doing this themselves, they suggest that the tools the argument provides can be plausibly employed as a kind of last resort for individuals facing deportation. To this end, it is worth noting that X&Y vs. France can be purchased as an artwork. However, the conditions of the sale implicate whoever purchases the work in bringing the argument to court: upon purchase the buyer agrees to commission a site-specific, immaterial work (existing within the precise framework of X&Y) between an established European artist and an individual facing possible deportation. Additional funding from the sale is also earmarked to pay the two lawyers to argue the case in front of a judge.

Bernier and Martin developed this work in 2007 following Bernier’s failed curatorial experiment in 2004, in which he attempted to secure safe passage to England for several immigrant storytellers by framing them as interpreters of immaterial artworks by established French artists.6 X&Y vs. France was produced during a yearlong residency at Les Laboratories d’Aubervilliers, an institution devoted to supporting artistic and interdisciplinary research, set in a rapidly growing Parisian suburb. According to the artists, the environment of Aubervilliers was particularly significant to the development of the work, as it is a kind of crossroads and destination for undocumented immigrants as well as for foreign students and asylum seekers.7

New York Times coverage of the 2005 riots in French suburbs.

The first performance of the work took place on the heels of a series of riots that occurred in the Parisian suburbs in November of 2007. This recalled a three-week period of unrest two years prior, when the death of two French youths of African descent at the hands of police sparked violence in the suburbs of Paris and 274 towns throughout France. Implementation of the Pasqua laws in the 1990s instituted changes in visa requirements, which caused a significant number of legitimate immigrants to become subject to deportation.8 By 2005, France’s immigration policies had become among the most restrictive in Europe. Fallout surrounding these laws was exacerbated by comments made by then Interior Minister Nicolas Sarkozy, who called for a “war without mercy” on suburban “scum,” linking the violence to immigration and the country’s rising Muslim population.9 While a number of the rioters were first- and second-generation immigrants from North African and Islamic countries, the issues underlying the riots were far more complex than “culture clash.”

Immigrants from France’s former colonies in Africa and the Americas are among the most culturally, economically, and politically excluded groups in Europe and are subject to widespread racial discrimination and xenophobia.10 Colloquially referred to as members of the “visible minority,” France’s immigrant population is not simply barred from legitimating forms of visibility within the public sphere, but is forced into view as “illegitimate” and a threat.11 Sarkozy’s statement, “France, love her or leave her,” attests to the country’s integrationist policies in which ethnic and cultural differences are subordinated to cultivating a homogeneous, if not mythic, national identity. Largely ignoring the country’s lengthy history as a colonial power extending throughout parts of Africa, the Caribbean, and North America, the period from 2005 to 2007 represented a moment in which French culture was reframed by way of an emphasis on a secular heritage that was uniquely French. The events spanning that time offered the government an opportunity to once again tighten immigration policies and further nationalist discourses, including in 2007 the establishment of “deportation target numbers” and the founding of a Ministry of Immigration and National Identity.12

At the same time that increased restrictions on immigration were being implemented, a parallel movement to expand the regulation of intellectual property was taking place. In 2006, the French government instituted a series of new laws criminalizing digital file sharing and the reproduction of copyrighted works for private use.13 Last year, attempts were made to establish a government agency whose purpose was to monitor the internet activity of citizens with the aim of preventing the unauthorized sharing of intellectual property—defined here as a work of the mind bearing the mark of the author’s personality.14 While copyright law has to some degree been standardized internationally since the 19th century, French law remains distinct from its international counterparts in that it is defined according to the rights of the author.15 This includes the “moral right” of integrity, which, for example, protects works of art, music, and literature against unauthorized alteration. Initially intended to protect authors from exploitation by publishers, these and other such laws have been invoked in recent years to limit open-source and peer-to-peer practices and encourage competitive innovation among computer software developers.

This double movement between immigration and intellectual property produces the context in which Bernier and Martin’s project operates. In the words of the artists, it is an “open-sourcing of French national identity,” that reflects a historical understanding of French culture as more fluid than recent discourse suggests.16 Indeed, when paired with concerns surrounding intellectual property, the reduction of immigration to a cultural debate—that is to say, its framing as a threat to the State and national identity—not only demonstrates how this debate reproduces an economic logic of of flexible accumulation, but also demonstrates the various modes of visibility produced within the public sphere that are both in plain view and out of sight.

It is precisely this expanding and narrowing, inclusion and exclusion of what is visible, sensible, and sayable that philosopher Jacques Rancière has described as the politics of aesthetics. For Rancière, this “distribution of the sensible” is the way that forms of sense perception, in which an individual may be included or excluded, recognized or unrecognized, are distributed among a population. Aesthetics simultaneously reveal the existence of a world held in common by a community, and the delimitation of roles, spaces, and times within the community itself. As both a means of inscription within spheres of visibility, and a way of acquiring legitimacy within those spheres, aesthetics condition who can do and say what, as well as when and where. In other words, it is a way of gaining recognition as members who have a say, stake, and share in the community. The notion of politics forwarded by Rancière, therefore, is a politics of the subject in constant negotiation with received modes of visibility. By drawing on the ways that laws can be redeployed by different actors, often to opposing ends and in ways that perhaps contradict the law’s original application, X&Y vs. France calls into question the forms of visibility that immigration policies and the language of human rights are themselves based upon.

Patrick Bernier and Olive Martin. Sylvia Preuss-Laussinotte and Sébastien Canevet  in X&Y vs. France: The Case of a Legal Precedent at the Ecole des Beaux-Arts in Paris, 2007. Photo: Cédric Schönwald.

Julia Kristeva, writing on the historical definition of foreigners, states that: “in order to found the rights that are specific to the men of a civilization or a nation―even the most reasonable and the most consciously democratic―one has to withdraw such rights from those that are not citizens, that is, other men? [...] Between the man and the citizen there is a scar: the foreigner.”17  Here, immigrants and foreigners are reduced to a scar on the body politic, embodying the memory of a wound inflicted by their own exclusion. While human rights are considered fundamental, they nonetheless demand articulation at the level of the State, which reserves the power either to recognize or withhold them. Undermining governmental claims to distribute justice or capacitate individuals equally breaks the nexus between the rights of the citizen and rights of the human from the moment of its inception.

As individuals existing outside the realm of legal protections, but to whom the law nevertheless applies, immigrants without documentation are thus thought to reside at the center of a crisis of State power, economics, and law. In a “bare” state of domination, and unrepresented within traditional frameworks of citizenship, nationality, and human rights, immigrants—as the rightful subjects of protections that they are denied—throw the very concepts of the State and legal sovereignty into question.

As a model for legal recourse that exists in relationship to but is nevertheless outside of traditional human rights discourse, X&Y vs. France points to the shortcomings of this line of thought.18 The argument does not propose a transfer of rights from those who have them to those for whom rights have been denied. X is never granted rights (or, one might say, subjecthood under the law) through his/her collaboration with Y. In fact, X only gains legal protections through an acknowledgement of the rights of the French/European artist. As such, the work destabilizes the binary that is instituted within humanitarian and human rights discourse between the capacitated, citizen-subject of human rights and the biopolitically dominated and incapacitated non-citizen unable to exercise the rights that they ostensibly have. Bernier and Martin refuse to reiterate the logic wherein immigrants are viewed as the excluded yet rightful subjects of legal protections that are afforded citizens. Similarly, they refuse the figure of the immigrant put into view as an incapacitated body in a state of domination whose humanity is restored through the actions of the non-governmental organization or the politically engaged artist/collective. In this case, X is not only framed as a subject that is in between, but as a subject that negotiates as well.

This irresolvable tension that is created between X and Y is not only the tension between who is recognized as legitimate or illegitimate—and the very conditions of that recognition—but it is also the tension between X and X; that is, of a subject becoming non-identical to itself as the incapacitated subject of humanitarian largesse. Rather than simply measuring the gap between citizen and “scar,” the work populates immigration debate with an unstable network of ambiguous actors—at once both artwork and artist, interpreter and author, European and non-European, illegitimate and non-expellable—resisting inscription within the field of visibility as illegitimate subjects who exist outside of the law’s purview and the protections of rights.

Patrick Bernier and Olive Martin. Sylvia Preuss-Laussinotte and Sébastien Canevet in X&Y vs. France: The Case of a Legal Precedent at the Ecole des Beaux-Arts in Paris, 2007. Photo: Marc Domage.

A documentary image from the project’s first performance at the École des Beaux-Arts in Paris provides further insight into the way in which the project complicates these forms of visibility within immigration debates. A woman and man appear before us, both white, both dressed in the formal black robes and white bavettes worn by lawyers in the European court. However, they are decoupled from the proper context of the courtroom. They stand and sit, respectively, in front of four slate slabs bearing the marks of multiple inscriptions and erasures. It is against this backdrop that they argue on behalf of an X who is also out of view, photographically displaced and anonymous. Viewing this image, one is prompted to ask, “Who are the photographically displaced and anonymous individuals invisible in the context of the courtroom?” The absence in the image of what would appear as legible immigrant bodies likewise poses a series of questions. Among them: Whom do we expect to have been removed from the image? What do illegal bodies look like? How do we recognize them?

Bringing the vocabulary of law, intellectual property, and human rights to bear on a situation in which they are denied, Bernier and Martin do not simply denounce the law or verify that rights exist. Nor do they voice a humanitarian “wrong” of statelessness, displacement, and social and political exclusion. In fact, this image―like the legal argument itself―projects two competing worlds: a world wherein rights are valid, and a world wherein they are not. Neither of these worlds corresponds directly to a true world, an idealized or authentic space that confirms the positive truth of human rights or establishes the link between human and citizen. Rather, both of these worlds are here contained within a single world—our world—with which we are forced to reckon. Indeed, it is a precarious world in which immigrants, asylum seekers, Creoles, and Muslims are alternatively forced into view as threats or as subjects who neither have rights nor the means to exercise them. It is a world in which laws governing intellectual property can plausibly apply to bodies―thereby conferring on them an uncertain and provisional status, the merits of which are open to debate. In the chalky artifacts on the blackboard, we see the vague outlines of bodies, as well as the traces left by those who wiped them from the surface. We can read these marks, not as a forced removal from the public sphere or political processes, but as the erasure of the forms of visibility that deny the full content of equality: the unmarking of equality’s others.


Singing the Net, a new video installation project by Patrick Bernier and Olive Martin, opens May 8 and runs through June 13 at Yerba Buena Center for the Arts.

Patrick Bernier was born in Paris in 1971. Olive Martin was born in Liège, Belgium, in 1972. They have collaborated for several years and developed a multidisciplinary work combining writing, film, photography, and performance.

Bernier studied Art and Philosophy at the Sorbonne in Paris, and Martin studied Art History and Fine Art at Toulouse University. They met at the École des Beaux-Arts de Paris in 1996, and both graduated with honors, in 1999 and 2000 respectively. Since 2001, Bernier has been actively engaged in an association dedicated to the solidarity of migrant workers in Nantes, where he gives juridical support and help with writing, fighting for equality of rights and the freedom of movement. Martin approaches in her work the notion of identity; she is interested in its detours and porosity. She pursues the idea of a "whatever singularity" (as developed by the philosopher Giorgio Agamben) in her photographs, films, and installations.

They are artists-in-residence in San Francisco through Artnow International in collaboration with the Kadist Art Foundation from January through May 2010.


  1. Rancière, Jacques. Dissensus: On Politics and Aesthetics, ed. Steve Corcoran trans. Steve Corcoran (London: Continuum, 2010), 62.
  2. Foucault, Michel. “Governmentality” in Power: Essential Works of Foucault 1954-1984 Vol.3, ed. James D. Faubion trans. Robert Hurley et al. (New York: The New Press, 2000).
  3. The case was made as a way of protecting Chopin’s family, who were French citizens, from exploitation by a German publisher seeking the reproduction rights to his sheet music.
  4. In addition to being presented at art colleges and institutions, X&Y vs. France has been performed in several other kinds of venues throughout France and Europe, including local libraries, city councils, anarchist fairs, and conferences dealing with intellectual property. There is also a dedicated project website, where users can access video documentation of the performance staged in 2009 at the Pompidou Center, and download a pdf copy of the dossier plaidoirie: http://www.plaidoiriepourunejurisprudence.ne
  5. Bernier, Patrick, and Martin, Olive, in conversation with the author, San Francisco, CA, March 2010
  6. In 2003, Bernier was invited to participate in the exhibition “I Am a Curator,” by the Swedish artist and curator Per Hüttner for the Chisenhale Gallery in London. Bernier’s project “failed” in that it was proposed to the gallery, but was rejected. Bernier subsequently self-published “A Tale for Creating a Legal Precedent,” a fictional account of a deportation hearing told in the first person by a woman involved in a collaboration similar to that of X & Y. http://plaidoiriepourunejurisprudence.net/spip.php?article18
  7. Bernier, Patrick, and Martin, Olive, in conversation with the author, San Francisco, CA, March 2010
  8. Guiraudon, Virginie. “Immigration Policy in France” in http://www.brookings.edu/articles/2002/0101france_guiraudon.asp
  9. http://www.nytimes.com/2008/02/08/world/europe/08iht-france.4.9879388.html?scp=1&sq=%22war%20without%20mercy%22%20Sarkozy&st=cse
  10. For a more comprehensive discussion of race relations and immigration in France, refer to: Fanon, Frantz. Black Skin, White Masks trans. Richard Philcox (New York: Grove Press 2008); Silverman, Maxim. Deconstructing the Nation: Immigration, Racism, and Citizenship (London: Routledge 1992); and Fysh, Peter, and Wolfreys, Jim. The Politics of Racism in France (New York: Palgrave Macmillan 2003).
  11. Indeed, in reference to immigration and suburban violence, Sarkozy declared in 2008, “the very idea of the nation is at stake.
  12. http://www.nytimes.com/2007/06/12/world/europe/12iht-france.4.6112573.html?_r=1&scp=9&sq=immigration%20france&st=cse
  13. DADVSI laws were an attempt by the French government in 2006 to ratify strict European Union laws governing copyright. The French Constitutional Council ruled DADVSI implementation unconstitutional. “The French Copyright Law Changed by Constitutional Council” EDRI-Gram in http://www.edri.org/edrigram/number4.15/dadvs
  14. For example, Hadopi, which is both a law and government agency in France instituted in 2009 to monitor the activities of internet users to prevent digital file sharing and downloading of copyrighted materials. “Hadopi Law Close of Creating a Dangerous Precedent” EDRI-Gram in http://www.edri.org/edri-gram/number7.4/hadopi-law-france
  15. Through the Berne Convention in the 19th century and the establishment of institutions such as the World Intellectual Property Organization in 1996
  16. Bernier, Patrick, and Martin, Olive, in conversation with the author San Francisco, CA, January 2010
  17. Kristeva, Julia. Strangers to Ourselves, trans, Leon S. Roudiez. (New York: Columbia University Press,1991), 97
  18. Ong, Aihwa. “(Re)Articulations of Citizenship” PS: Political Science and Politics, Vol.38, No.4 (October 2005), 698.

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