van de Berge and Gaakeer on Rereading Kafka's The Trial: Responsibility, Reflection, and the Case of the Dutch Childcare Allowance Scandal

Lukas van de Berge, Utrecht University Faculty of Law, and Jeanne Gaakeer have published Rereading Kafka's The Trial: Responsibility, Reflection, and the Case of the Dutch Childcare Allowance Scandal. Here is the abstract.

As standard interpretation has it, Kafka's novel The Trial depicts how an innocent and defenceless individual is crushed by powerful and absurdly bureaucratic institutions. No wonder, therefore, that The Trial is often linked to the British Post Office Scandal, the Australian Robodebt Scheme, the Dutch Childcare Allowance Scandal and other such affairs that rendered many people helpless in their fights against flawed systems and disinterested governments. This paper explores the significance for judicial ethics and legal practice of an alternative interpretation of The Trial-and of Kafka's works more in generalthat has been most compellingly proposed by Walter H. Sokel. An important conclusion will be that Sokel's alternative understanding of Kafka and the Kafkaesque yields even more important insights into the workings of modern law and government than the standard interpretation.

Download the article from SSRN at the link.

Solove and Hartzog on Kafka in the Age of AI and the Futility of Privacy as Control @DanielSolove @hartzog @gwlaw @BU_Law @BULawReview

Daniel J. Solove, George Washington Law School, and Woodrow Hartzog, Boston University Law School, Stanford Law School Center for Internet and Society, are publishing Kafka in the Age of AI and the Futility of Privacy as Control in volume 104 of the Boston University Law Review. Here is the abstract.

Although writing more than a century ago, Franz Kafka captured the core problem of digital technologies – how individuals are rendered powerless and vulnerable. During the past fifty years, and especially in the 21st century, privacy laws have been sprouting up around the world. These laws are often based heavily on an Individual Control Model that aims to empower individuals with rights to help them control the collection, use, and disclosure of their data. In this Essay, we argue that although Kafka starkly shows us the plight of the disempowered individual, his work also paradoxically suggests that empowering the individual isn’t the answer to protecting privacy, especially in the age of artificial intelligence. In Kafka’s world, characters readily submit to authority, even when they aren’t forced and even when doing so leads to injury or death. The victims are blamed, and they even blame themselves. Although Kafka’s view of human nature is exaggerated for darkly comedic effect, it nevertheless captures many truths that privacy law must reckon with. Even if dark patterns and dirty manipulative practices are cleaned up, people will still make bad decisions about privacy. Despite warnings, people will embrace the technologies that hurt them. When given control over their data, people will give it right back. And when people’s data is used in unexpected and harmful ways, people will often blame themselves. Kafka’s provides key insights for regulating privacy in the age of AI. The law can’t empower individuals when it is the system that renders them powerless. Ultimately, privacy law’s primary goal should not be to give individuals control over their data. Instead, the law should focus on ensuring a societal structure that brings the collection, use, and disclosure of personal data under control.

Download the article from SSRN at the link.

Ramshaw on The Song and Silence of the Sirens: Attunement to the "Other" in Law and Music @translat_improv

Sara Ramshaw, University of Victoria Faculty of Law, is publishing The Song and Silence of the Sirens: Attunement to the ‘Other’ in Law and Music in Law and the Senses: HEAR. Here is the abstract.

Employing Homer’s story of Odysseus and the Sirens, and Kafka’s and Blanchot’s reinterpretations, this text explores ‘attunement’ as an imperfect listening that tunes its ear to the inaudible and unknowable ‘other’; resisting attempts to fully control or make selective our listening, and thereby inviting justice to be done. Compared to Kafka’s law, understood as a relentless and unceasing ‘droning noise’, the origin of which is unlocatable, justice as attunement is read here through a Derridean deconstruction of law and musical improvisation to suggest that, instead of endeavoring to harness and control the sonic like Odysseus did, it should be permitted to sing – ‘throats rising and falling, … breasts lifting, … lips half-parted’ – in the place between song and silence, where listening is always a listening-with.

Download the article from SSRN at the link.

Publishing Kafka @thenation @evankindley

Evan Kindley examines Franz Kafka's desire to have his works destroyed after his death, his literary executor Max Brod's decision to disregard that command, and the result of Brod's decision, here, in an essay for The Nation.

Brod, in particular, felt a “fanatical veneration” for his friend’s talent and took it as his mission to combat the depressive Kafka’s extreme reluctance to publish his work. “I wrested from Kafka nearly everything he published [during his lifetime] either by persuasion or guile,” Brod recalled. “At times I stood over him like a rod, drove him and forced him…again and again by new means and new tricks…. What mattered to me was the thing itself, the helping of a friend even against the wish of the friend.” When Kafka finally did publish a book—the 1912 short-story collection Meditation—Brod was there to give it one of its few reviews, which included the following statement: “I could easily imagine someone getting hold of this book and finding his whole life altered from that moment on, and realizing he would become a new person.”

An Animation of Kafka's Before the Law @openculture

From Open Culture: an animation of Franz Kafka's parable Before the Law (from The Trial).

Happy Birthday, Franz Kafka

Happy Birthday to Franz Kafka, born July 3, 1883 (died June 3, 1924).

Law is quite the theme of Kafka's life (and death).

On Wednesday July 1, an Israeli court ruled that his papers belong to the National Library of Israel, rather than to the daughters of Kafka's friend Max Brod's secretary (did you follow that?) The legal battle between the daughters and the government of Israel over who should dispose of the papers began in 2008.

Here's a short bibliography on law and literature in Franz Kafka.

Li-Ching Chang, The Research of Comparison Between Law and Literature: As Illustrated by Kafka's "The Trial"

Patrick Glen, The Destruction and Reification of Law in Franz Kafka's "Before the Law" and The Trial

Patrick Glen, Franz Kafka, Lawrence Joseph, and the Possibilities of Jurisprudential Literature

See also this bibliography (NB: not updated since 1995).

There have been several movie versions of Kafka's novel The Trial, most notably by Orson Welles (1962) and Martin Scorsese (1985). Films have also been made of The Castile, in 1968 (West German), 1994 (Russian) and Austrian (1997).  Steven Soderbergh directed Jeremy Irons in the film Kafka (1991), in which Irons as Kafka investigates the murder of a co-worker and uncovers the doings of a secret group tied to violence.

"A book must be the axe for the frozen sea within us.”
--Franz Kafka

Surveillance and Fiction

Sam Frank discusses how surveillance leads to "noveliz[ation of] our lives." He suggests turning to literature to understand this phenomenon--specifically to novels such as Joshua Cohen's Book of Numbers, Dave Eggers' The Circle, or the classic The Trial, by Franz Kafka. More here at The Intercept.

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