In one of the moving tributes to Valerie Kerruish posted on Critical Legal Thinking[1] shortly after her passing away, Emilios Christidoulidis wrote that “(h)er magnum opus The Wrong of Law, which she spent the last two decades of her life writing, remains devastatingly unfinished.” Its publication[2], with so much love and care besorgt by Uwe Petersen, will not change this, except perhaps for the devastation wrought by this unique maze of philosophies, logics, laws, cultures and case studies. Yes, the book is devastating, because no one, not even Valerie herself, would be able to wrap it up or map it out, let alone review it. Yet, precisely this trekking through a landscape without a preset destination, with just that one question ‘where to stay the philosophical night?’ – turns the text into an invitation to join Kerruish’s trails for a while. It transforms its infinite deferral of closure into an energising rather than a devastating force. So let me accept this generous invitation by just joining one salient trail of hers, reflecting on a core phrase by which she characterises her endeavours: law catching itself by surprise, thus surprising and being surprised in one fell swoop.
By dint of this very core phrase, WoL is reminiscent of a provocative book by Bernard Edelman, Le droit saisi par la photographie.[3] The title translates as ‘law snapped (caught by surprise) by photography’.[4] The author – (at the time) a legal practitioner and a legal philosopher inspired by Marx – provides “a crucial, indispensable hinge between Marxist legal theory and the concept of the “legal form”, as developed by Yevgeny Pashukanis in the 1920s (…).”[5] Of its contents, I can only give the briefest of abstracts here. It all starts with a question that I (not Edelman) purposively put in a first-person mode: To whom belongs my face? You may be inclined to think: to me. But in the course of the 19th century, through the technical invention of photography, it became possible for a photographer to claim ownership of a picture he made of my face. Not much later, a market for photographs originated, on which not only this singular picture of mine could be offered for sale, but thousands and thousands of copies, too. In spite of my right to my face – and quite similar features which, at present, the European Regulation (EU) 2016/679 catches (by surprise) as ‘personal data’ – the profits of the picture of my face go not even to the photographer but to the photographic industry. My face has become a commodity. So already in the 19th century, “(t)he economic reality of photography and film forced the law to solve completely unexpected legal problems. (…) 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.”[6] Looming large in the background is the question how, by which processes and through which forms, law transforms the real world in which I am in a singular way ‘faced’ – remember: the first meaning Locke attributes to ‘property’ – into a bunch of legal objects from which I am ‘effaced’. To accomplish this, law must create forms that allow one to appropriate what is already appropriated, and cover up the traces of its operations. This, I submit, is very close to what Kerruish calls ‘the wrong of law’.
In her own words, pregnant of the fear to be misunderstood:
‘‘The ‘wrong’ in my idea of the wrong of law inheres in modern law’s incapacity to surprise itself in thinking itself as right. That is not wrong at all in the universe of legal discourse or ‘virtual reality’ as it has been called. Law is law and its way of thinking itself as right is part and parcel of what it is. If the idea of the wrong of law thus seems to come into conflict with ‘the wrong of law’ in the sense of modern law’s conception of ‘right’ and ‘wrong’, the ambiguity of form is its saving grace.”[7]
This ambiguity is, for instance, what turns ‘public realm’ into ‘public property’ and all sorts of entities, from fertilized human ova[8] over labour unions to multinationals and states, into legal subjects. I will return to the example of (Belgian) labour unions shortly. The ambiguity of the economic versus the moral considerations driving the Court of Justice of the European Union in its robust effort to exclude extraction of stem cells out of human ova in laboratory from patentability under EU law, was the topic of a paper I can only refer to, but not summarize, here.[9] As regards public realms, since the rise of neo-liberalism in the previous century, with notable exceptions[10] their development took place through the hands of private rather than public property. A Dutch PhD thesis in architecture neatly identifies the problem:
“This privatisation of development in urban areas did not just affect the process but also the outcome; the appearance and use of public spaces. Within the urban renaissance agenda, a strong emphasis was put on the aesthetisation of space in order to attract the desired businesses, investors and people with a high disposable income. The objective in private management regimes appears to be on reducing risk by putting a strong focus on surveillance, safety, tidiness and the exclusion of undesirable behaviour, all of which reduces the diversity, vitality and vibrancy of spaces in order to welcome tourists and middle-class visitors […].”[11]
But covering up traces is not erasing traces. As for Edelman, the stakes of his book are:
“(…) to grasp law in the very discourse that is proper to it. Better: we intend to ‘surprise’ it in its discourse as it, itself, got surprised by photography and cinema. We will surprise it in its decomposition / re-composition, in the process of absorption of these new modes of coming to grips with the real.”[12]
Something very similar Kerruish tries to do in WoL on a larger, though equally Marxian, canvass: “Thought surprising itself is a conditio sine qua non of my idea of the wrong of law. Its surprises are surprises of which thought is both subject and object, both that which surprises and that which is surprised.”[13] And again, both joining and critically distancing herself from Hegel: “Thought surprising itself as sine qua non of the wrong of law is not directed to ‘the event’, does not place it between the ‘it’ and the ‘self’ of thought surprising itself.”[14] Kerruish and Edelman are united (by Pashukanis) in regarding Marx’s analysis of the double character of commodity as the paradigm of the kind of ‘wrong’ inherent in law. That socio-economic relationships can reshape the use value of a commodity as an exchange value and hypostatise the latter as a natural state of affairs is for both authors an eye-opener that allows them to extend Marx’s characterisation of commodities as ‘fetishes’ to rights. Only, where Edelman focuses on the subjects related to each other by these rights[15], Kerruish chooses to investigate the relationships themselves and reveal how law gets ‘at odds with itself’ by the ambiguity of its form. And so:
“Modern law is meant to displace metaphysical/logical ideas, arguments and procedures by its doctrine and process for the purpose of maintaining the social order of which it is a part. (…) The form of law is a form of social and power relations of a time and place. It is also a product of formalization and it is a form that makes itself its own content.”[16]
Yet, her most elaborate case study (Kartinyeri v The Commonwealth of Australia) is, ultimately, on “(…) the dynamic of capital in the hierarchy of entities to which modern law accords personality.”[17] The case was (briefly summarized) about the constitutional validity of the so-called Bridge Act (1997), which excluded two specific places from the scope of the (wider and older) Aboriginal Heritage Protection Act (1984). The latter provided mainly procedural rather than hard proprietary rights. These turned out to uphold law as a form all right, but offered poor protection when it came to the spiritual traditions of the Ngarrindjeri women connected to one of the specific places, Hindmarsh Island, where a business couple had plans (and permissions) to develop a marina project.
The ambiguity of attributing legal personhood is perhaps best illustrated by two highly politicised phenomena in which law is forced, as it were, to acknowledge its own wrong. One is the status of trade unions in Belgium, who, for decades now, have consistently refused to accept legal personality.[18] The last attempt (July 2025) to impose this status by legislation, advanced by employers’ organisations and right wing political parties, was curbed by massive protests of employees, their associations, as well as the Council of State.[19] It was regarded as an assault on the political power of trade unions, as it would (i) oblige them to reveal their financial resources, (ii) make them liable for losses caused by strikes and other actions with economic impact, (iii) exclude non-‘recognised’ unions from socio-economic deliberations and negotiations. The Council of State opined that the proposal was not only dangerous but also constitutionally unlawful for being incompatible with the foundations of social democracy. What we see here, I think, is that the law becomes at odds with its own wrong: it ‘snaps’ the ambivalence of its very form. All of a sudden it comes to light that what is politically meant and institutionally designed as legal protection of citizens is the very weak spot where the driving forces of a capitalist economy, in particular its imperial and colonial ‘viruses’ try to enter the body politic. It cannot come as a surprise that they make victims among those whose citizenship is either in jeopardy or in limbo (or both): migrants, low-wage workers, ethnic minorities, women, etc. At the same time, however, illustrating the ambivalence of this imbalance, we witness successful invocations of legal form – imposing duties of care, payments, and responsibilities to protect on non-committed players on the (global) market – that appear to have at least temporary effects in terms of real protection.[20]
The second example works the other way around to a similar conclusion. In various countries, activists in environmental protection have achieved legislation that attributes legal subjectivity not only to animals and plants, but also to rivers, mountain ridges, coral reefs and, generally, ‘landscapes’.[21] The status of legal personhood is often expressed in terms of rights of such non-human entities, which are allegedly correlate with obligations on the part of human entities to protect the ‘life’, i.e., the existence of the former. This approach steers away from treating nature as an object to be managed for the sake of (common) human interests. “(L)egal provisions framed in terms of the rights of nature would send the message that nature is not to be exploited.”[22] However, here again, the legal form generates ambiguous implications. Suppose the river Maas, fed by rain water rather than melting glaciers, is attributed (passive) legal personhood by the countries in its basin: France, Belgium, and The Netherlands. In civil law, this status comes with rights as well as duties, to be exercised, presumably, by some board overseeing the interests of the river. If it purports to be effective, it will put together a budget from payments by industry, farmers, civilians, be they imposed or voluntarily made. Now the river Maas, due to extreme rainfall, suddenly floods the historic centre of Maastricht, causing huge damage. Should the board of the river acknowledge liability of the river and, by implication, the duty to pay damages to the city of Maastricht? An affirmative answer may well cause the river to fail, absorbing the protection budget for many years to come.
In both these examples we may recognise what Kerruish calls ‘the wrong of law’, brought to light by this twofold genitive in the phrase ‘surprising law’: “the space of and for the wrong of law.”[23]
Bert van Roermund is Professor (em.) of Philosophy of Law and Political Philosophy at Tilburg University, The Netherlands.
References
Edelman, B. (1980 [1973]). Le droit saisi par la photographie. Eléments pour une théorie marxiste du droit. Postface de Paul Q. Hirst, Paris: Chr. Bourgois Éditeur.
Hohfeld, W. (1978 [1919,1923]). Fundamental legal conceptions as applied in judicial reasoning and other legal essays. Ed. W. W. Cook, New Haven: Yale University Press.
Kerruish, V. (2025). The Wrong of Law. Metaphysics, Logics and Law’s Claim of Right. Ed. U. Petersen, Abingdon – New York: Routledge.
Kurki, Visa A. J. (2022). ‘Can Nature Hold Rights? It’s Not as Easy as You Think.’ Transnational Environmental Law 11 (3): 525-552.
Leclercq, E. (2018). Privatisation of the Production of Public Space (Vol. 8). Delft: A+BE. Architecture and the Built Environment
Van Roermund, B. (2013). ‘The embryo and its rights: Technology and teleology.’ German Law Journal 14 (10): 1939-1958.
[1] https://criticallegalthinking.com/2022/07/25/valerie-kerruish-1943-2022/ , visited Nov. 11th, 2025.
[2] (Keruish 2025), hereinafter referred to as WoL with page numbers.
[3] (Edelman 1980 [1973]).
[4] The 1979 English translation by Elizabeth Kingdom English is titled The Ownership of the Image.
[5] As the Haruck Farochi Institut notes. See https://www.harun-farocki-institut.org/en/2024/08/30/bernard-edelman-the-law-seized-by-photography-edited-by-harun-farocki-und-hanns-zischler-for-filmkritik-no-218-february-1975/, visited Nov. 11th, 2025.
[6] Ibid.
[7] WoL, 5.
[8] Cf. CEU C-34/10, ECLI:EU:C:2011:669 (Brüstle vs Greenpeace).
[9] Cf. (Van Roermund 2013).
[10] Spoorpark in my home town Tilburg (the Netherlands) is one. See https://spoorparktilburg.nl/history/
[11] (Leclercq 2018) 17.
[12] (Edelman 1980 [1973]) 39-40. My translation, BvR.
[13] WoL, 201. See also WoL 225ff, in particular section 7.3.
[14] Ibid., 233.
[15] Cf. (Hohfeld 1978 [1919,1923]) for one way of detailing such relations.
[16] WoL, viii and ix.
[17] Ibid., 195.
[18] But for a very restricted, procedural personhood.
[19] In fact the Council repeated its 2021 advice.
[20] Cf. the Urgenda decision in the Netherlands, at https://www.urgenda.nl/en/themas/climate-case/. Also
[21] Paradigmatic is Aotearoa New Zealand regarding the Whanganui River (2017) as a legal subject, which is seen by Maori people as their living ancestor.
[22] (Kurki 2022).
[23] WoL 251.
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