Free Will, Wills and Trusts, and Trusting the Author

Nili Cohen, Tel-Aviv University, has published The Betrayed (?) Wills of Kafka and Brod at Law & Literature 1-21.  Here is the abstract.

The endeavor to trace the will of the deceased and respect it accordingly is the central concern of this essay. It deals with the wills of Franz Kafka and Max Brod, each of whom separately left written wishes about how to dispose of Kafka’s manuscripts after they die.

In the months prior to his death Kafka explicitly expressed his wishes regarding the fate of his manuscripts in two letters addressed to Brod (which were never actually sent) in which he was instructed to set them on fire. Through his disregard of Kafka’s instructions Brod clarified that he acted out of a twofold loyalty: to the public (the literary and cultural value of the manuscripts) and to Kafka himself (his true wish was otherwise).

Brod himself expressed his wish regarding the fate of Kafka’s manuscripts in gift letters addressed to Ilse Hoffe, as well as in his wills. The issue of the title to Kafka’s manuscripts was discussed in Israeli court and ostensibly decided, in 1974 after Brod’s death, in favor of Ilse Hoffe. However, the matter returned to court upon her death in 2008. This time the court ruled that Kafka’s manuscripts did not belong to Ilse Hoffe or her heirs.

An appeal against the court’s decision is currently pending. Kafka’s wish is different than Brod’s wish, nevertheless they are linked by a conceptual thread. Both wishes could potentially detract from the manuscripts’ cultural value: Kafka by destroying them and Brod by privatizing them. In both cases a tension prevails between the private interest of autonomy and the public interest of preservation of cultural assets and their accessibility. The question of how to interpret the wishes of Kafka and Brod is examined by reference to the issue of free will and “liberating bonds” in the story of Odysseus and the sirens (also following Kafka’s version), by examining the idea of the author’s “moral right,” by focusing on the interrelations between text-author-interpreter, and by reference to the account of law as reflected in Kafka’s writings.

The complete text is not available from SSRN