A Reading of Kafka's "The Trial"

Robert P. Burns, Northwestern University School of Law, has published Preface for: Kafka's Law: 'The Trial' and American Criminal Justice (University of Chicago Press, 2014). Here is the abstract.

Justice Kennedy famously claimed that Kafka's great work, "The Trial," expressed the reality of the American criminal justice system, at least from the defendant's point of view. This essay, the first sections a book just released by the University of Chicago Press, first summarizes the book's argument that the Justice got it just right, and then provides a close reading of "The Trial." This reading agrees with Hannah Arendt's view that the novel is centrally about institutional issues of justice and that it provides an "organizational gothic" vision of contemporary bureaucratic governance in criminal procedure.

Download the text from SSRN at the link. 

Happy Birthday, Franz Kafka

The July 3, 2013 Google doodle is a tribute to Franz Kafka's "Metamorphosis": see here. Kafka's work is shot through with legal themes. Below, a quick and dirty bibliography.


Glen, Patrick J., The Deconstruction and Reification of Law in Franz Kafka's "Before the Law" and The Trial
Glen, Patrick J., Franz Kafka, Lawrence Joseph, and the Possibilities of Jurisprudential Literature
Kafka, Franz, The New Attorney
Kirchberger, Lida, Franz Kafka's Use of Law In Fiction (Peter Lang Publishing, 1986).
Teubner, Gunther, The Literature Before It Is Law

The Kafka Project

The Writer and the Law

John James Berry, Barry University School of Law, has published The Law, The Writer and The Work: How an Author's Interaction with the Legal System Impacts His Writing. Here is the abstract.

By tracing the lives led by four famous authors and exploring the societies which produced them, this article will show how law affects literature in ways that many readers may not notice. Rather than explore what was expressed by the author, this work will examine the affect the background of the author has on the tone of the works of literature which they produce, the affect the law and their culture's legal system had on their background, and how the characteristics of the cultures and authors reflect the characteristics of the governing legal system. Ultimately, this piece shows that, rather than a society's legal system reflecting its' underlying culture, the power of the law has the ability to shape the culture which it is supposed to serve.

Download the paper from SSRN at the link.

The Origins of Law

Jacques DeVille, University of the Western Cape, has published On Law’s Origin: Derrida Reading Freud, Kafka and Lévi-Strauss in volume 7 of the Utrecht Law Review (April 2011). Here is the abstract.

This article's main focus is 'Before the Law', a text by Derrida on Kafka's Before the Law, in which Derrida also comments on Freud's Totem and Taboo. Freud, in this text, enquires into the origins of religion, morality, social institutions and law. He contends that this origin is to be found in a crime, the killing of the primal father by a band of brothers, followed by the institution of totemism and the incest prohibition. Freud's psychoanalytical account of the origins of the totem and the prohibition of incest has been challenged from various quarters. The article enquires whether Freud's Totem and Taboo and its theory of the primal horde in relation to the origins of law should be dismissed in light of these challenges, or whether some insight can still be gained from it. The second option is affirmed, with Derrida's 'Before the Law' pointing to the importance of reading Freud in a way analogous to Kafka's Before the Law, and more specifically to the need for a reconsideration of the originary nature of the Oedipus complex, so as to arrive eventually at a kind of 'pre-origin' of law.

Download the article from SSRN at the link.

Kafka, Foucault, and Writing as Resistance

Nicholas Dungey has published Franz Kafka and Michele Foucault: Writing as Resistance as a Western Political Science Association 2010 Annual Meeting Paper. Here is the abstract.

One of the most pressing challenges to Foucault's notion of the self and disciplinary power concerns the issue of resistance. If, as Foucault argues, the self is wholly constituted by disciplinary power and practices, then what possibility exists for resistance to such power and practices? While this is a difficult challenge, Foucault insists that resistance is part and parcel with the happening of disciplinary power. In order to illuminate Foucault's observations about resistance I turn to Kafka' letters and diaries. I contend that Kafka wrote as a way of resisting the influence of disciplinary power and practices. Kafka wrote in order to do battle with the forces he found himself constituted by, and in the process, redefine the field of battle, and re-describe the terms and discourse in which the battle was fought. Kafka wrote, and struggled to write, as a way of resisting the domination of disciplinary power operating on him. I contend that Kafka might have been aware, like Foucault, that there was no final victory, no heroic escape or triumph from the battle. Therefore, Kafka wrote not to overcome the battle, but rather as the only legitimate response to the forces of 'isciplinary (sic) power. Writing was Kafka's way of struggling valiantly.

The full text is not available on SSRN.

The Trial

From the New York Times, an account of the legal battle over Franz Kafka literary legacy. The parties: the National Library of Israel and the heirs of Max Brod, who handled Mr. Kafka's estate.

Reza Banakar, University of Westminster School of Law, has published "In Search of Heimat: A Note on Franz Kafka’s Concept of Law," in volume 22 of Law and Literature (Summer 2010). Here is the abstract.

Are Franz Kafka’s descriptions of law and legality a figment of his imagination or do they go beyond his obsessive probing of his neurosis, reflecting issues which also engaged the social and legal theorists of the time? Does Kafka’s conception of law offer anything new in respect to law, justice and bureaucracy, which was not explored by his contemporaries or by later legal scholars? This paper uses Kafka’s office writings as a starting point for re-examining the images of law, bureaucracy, hierarchy and authority in his fiction; images which are traditionally treated as metaphors for things other than law. It will argue that the legal images in Kafka’s fiction are worthy of examination, not only because of their bewildering, enigmatic, bizarre, profane and alienating effects, or because of the deeper theological or existential meaning they suggest, but also as a particular concept of law and legality which operates paradoxically as an integral part of the human condition under modernity. To explore this point Kafka’s conception of law is placed in the context of his overall writing as a search for Heimat which takes us beyond the instrumental understanding of law advocated by various schools of legal positivism and allows us to grasp law as a form of experience.

Download from SSRN at the link.

Anti-Semitism and Religion in Kafka

Arnold Heidsieck, University of Southern California, has published "On Judaism, Christianity, Anti-Semitism in Kafka's the Castle, His Letters and Diaries." Here is the abstract.

In his writings Kafka scrutinized, encouraged by his friend Max Brod, the early 20th-century German-speaking disputes on the ancient Jewish origins of Christianity and attempted an explication of the Christian-Germanic ideology of anti-Semitism.

Download the paper from SSRN here.

Kafka's POV

Arnold Heidsieck, University of Southern California, has published "Kafka's Narrative Innovation and Ethical Intuitions." Here is the abstract.

In his fictions Kafka develops an innovative narrative POV (uni-polar 'self-narration') and a penetrating (near-psychoanalytic) scrutiny of motives. Additionally, throughout his fictions and his non-fiction he works out a contextually rich individualist ethics.

Download the paper from SSRN here.

Franz Kafka's Last Wishes and the Kafka Myths

Professor Lior Strahilevitz (U. Chicago Law School) has an interesting post about Franz Kafka's papers. The famous story about Kafka's papers is that Kafka asked his friend, Max Brod, to burn them after his death. Although Kafka had published a few works during his lifetime, a great many stories, parables, letters, and diary entries were unpublished, as were Kafka's two great book masterpieces, The Trial and The Castle. Brod refused to burn them. Instead, he published them, and Kafka would go on to achieve enormous posthumous fame as one of the greatest writers of the twentieth century.
Should Brod have carried out Kafka's wishes? Lior argues yes:

I have written, and continue to believe, that Brod should have destroyed Kafka’s unpublished works, as per Kafka’s instructions, notwithstanding the immense literary value of the work. Kafka had legitimate privacy and artistic integrity interests in the works that should have been respected, and as their creator he was in the best position to decide upon their fate.

Controversies over the Kafka papers have recently reemerged. The New York Times describes a new issue over Kafka's papers:

When Mr. Brod fled to Tel Aviv from Prague on the last train out in 1939 as the Nazis rolled in, he had with him a suitcase full of Kafka’s documents.
Here, he took up with his secretary, and when he died in 1968, he bequeathed to her the remaining Kafka papers, as well as his own from a rich cultural career. For nearly 40 years, the secretary, Esther Hoffe, held the world of Kafka scholarship on tenterhooks, keeping the documents in her ground-floor apartment on Spinoza Street, some of them piled high on her desk (it was originally Mr. Brod’s), where she typed all day and took her meals.
The last time a scholar was permitted into the apartment was in the 1980s. Later, Ms. Hoffe sold the manuscript for “The Trial” for $2 million. No one knows what remains.
Since her death last year at age 101, her 74-year-old daughter, Hava, has indicated that a decision about the coveted papers will be made in the coming months. While most of the Kafka estate is already in archives in the Czech Republic, Britain and Germany, some may still be inside the scuffed front door of the Hoffe apartment.

Lior's article, The Right to Destroy, 114 Yale L.J. 781 (2005) (SSRN version here, final published version here) argues:

I submit that the K papers and manuscripts should be destroyed, on the basis of any of four rationales. . . .
First . . . A society that does not allow authors to have their draft works destroyed posthumously could have
less literary product than a society that requires the preservation of all literary works not destroyed during the author’s life. Protecting authors’ rights to destroy should encourage high-risk, high-reward projects, and might prevent writers from worrying that they should not commit words to paper unless they have complete visions of the narrative structures for their work. . . .
Second, we might accept an economic rationale. . . . K has an economic interest (via his concern for the welfare of his beneficiaries) in assuring that the value of his published works is not diminished by the conceivably inferior quality of the unpublished works.
Third and relatedly, . . . By destroying his unfinished works, K may wish to send a message to the public that he is not the type of artist who will tolerate, let alone publish, inferior works. . . .
Finally, . . . . If a court decides to bar Brod from destroying K’s unpublished works, it is forcing the departed K to speak when he would have preferred to remain silent.

I don't want to take on Lior's arguments in this post, as I find myself greatly torn over the issue. Respecting the privacy and final wishes of the author is a very important value, but there is also enormous social benefit from society's having an author's papers. Imagine if Kafka's wishes had been granted. Nobody would know of The Trial or The Castle, two of the greatest works of literature ever penned. Maybe there should be a special exception for Kafka since his works are so great. . . .
But there's another interesting issue in Kafka's request to Brod. Lior explicitly states that he is assuming, for the sake of his analysis, that Kafka's instructions to Brod were "unambiguous." But Kafka's instructions were, in fact, not so clear. In a recent book, Why You Should Read Kafka Before You Waste Your Life (2008), James Hawes attempts to deflate many myths about Kafka. Kafka wrote two "wills" to Brod. In his writing desk, Kafka left the following instruction:

Dearest Max, my last wish: Everything that I leave behind in the way of diaries, manuscripts, letters of my own and from others, drawing, etc. (whether in my bookcase, clothes cupboard, writing desk at home or at the office, or in any other place anything may have gotten and you find it) should be burned, completely and unread, as should everything written or drawn in your possession or in the possession of others whom you should ask, in my name, to do likewise. People who do not want to hand over letters to you should at least be made to promise that they themselves will burn them. Yours, Franz Kafka.

Kafka wrote Max another letter shortly before his death, listing his published works and saying that "only the following books count" but that :everything that exists in the way of my writings (publications in journals, manuscripts and letters) is without exception inasmuch as it's possible to get hold of it . . . . all this, without exception, is to be burned and you are asked to do this as quickly as possible by me, Franz."
Hawkes contends, and I agree, that Kafka "didn't mean a word of it." Hawes writes:

Kafka was a lawyer. He knew very well what a binding legal document looked like and that neither of these supposed wills was remotely a real one. Brod claims that he'd even told Kafka flat out, at the time of his first will, that he wouldn't carry out the instructions.

Brod was Kafka's best friend and greatest fan. Brod had helped to establish Kafka's reputation as an author, and it was ironic to ask him to destroy the works. Kafka had shown Brod The Trial and back in 1919, Brod even joked with Kafka that Brod would finish it when Kafka's publisher was demanding novels instead of stories from Kafka.
Kafka was a master of irony. His request to Brod, understood in the context of his work, diaries, and letters (much of which, even more ironically, were subject to his request to burn), is typical Kafka. He was asking the man whom he knew never would burn his papers to do so. He could have asked others to carry out his bidding, but he chose Brod. As in all his works, Kafka raises complex issues of interpretation.
The Hawes book is an interesting read, as it attempts to debunk many myths about Kafka. Among the myths are that Kafka was unknown in his lifetime, that he lived a lonely life, and that he was poor. In fact, Hawes points out that Kafka was well-received in literary circles. Kafka had an active social life. Kafka did have dysfunctional relationships with women, a phenomenon Hawes attributes to Kafka's deep ambivalence about being married and raising a family (which Kafka was afraid would take away time from his writing). Kafka made a very good living and was successful at his job. Hawes also notes that although many view Kafka's living at home for most of his adult life demonstrated that he was a failure, this was in fact the norm for young unmarried professionals. People envision Kafka as a tiny gaunt figure, but he was for most of his life in good shape and was quite tall -- about 6 feet tall, which was much taller than average at the time.
Hawes does go a bit overboard at times, contending that Kafka's Jewishness had little influence in his work. In fact, Kafka's works are suffused with countless tropes, images, and references to Judaism. Kafka wasn't a particularly religious man, but he was fascinated by Judaism and studied it extensively. Hawes also makes much of Kafka's porn collection, using it as a way to deflate critics whom Hawes think put Kafka on too much of a pedestal. The porn consisted mainly of illustrations from a journal called The Amethyst, which seems to have been a literary journal that published "edgy fiction" and erotica. The illustrations, some of which Hawes reproduces in his book, are a little weird, but seem much more arty than pornographic. Hawes seems to be a bit too obsessed in attacking his conception of the Kafka critic who views Kafka as an asexual individual, a pure soul devoted solely to abstract ideas. Such critics do exist, but much commentary about Kafka does not view him in this caricatured manner. Nevertheless, despite Hawes' tendency to overclaim, his book is very entertaining and illuminating about Kafka. Too bad it is marred by Hawes' rather obnoxious tone, as the one-and-only myth-slayer designed to bring Kafka back to earth.
Cross-posted at Concurring Opinions

Kafka's Knowledge of Law

Arnold Heidsieck, University of Southern California, has published "Fictional and Non-Fictional Uses of Administrative, Civil, and Criminal Law by Kafka and His Friends." Here is the abstract.

Kafka studied these three branches of law with several then-prominent academic teachers. But it was his extra-mural association with the legal philosopher Oskar Kraus that gave him a firm grasp of how modern liberal law emerged from the Aristotelian, Roman, and Judeo-Christian concepts of natural and rational law.

Download the entire essays from SSRN here.

Judges Citing Literature

Professor Todd Henderson (U. Chicago Law School) has posted an interesting article on SSRN, Citing Fiction, 11 Green Bag 2d 171 (2008). He provides many illuminating facts about judges citing literary works:

A comprehensive survey of over 2 million federal appellate opinions over the past 100 years reveals only 543 identifiable citations or references to works of fiction. Of these, less than half – 236 – were employed rhetorically to evoke an emotional response in the reader. This type of citation, which I’ll call a "literary" citation, occurs in only about 1 out of every 10,000 federal appellate opinions.

Todd's data is quite interesting, but I disagree with how he frames his essay and some of the conclusions he draws. Todd writes:

[A] central claim of the law and literature movement (which I'll refer to as "the Movement") is that reading fiction can provide judges with knowledge about how to solve real world problems. For example, Professor Martha Nussbaum writes that "the novel constructs a paradigm of a style of ethical reasoning … in which we get potentially universalizable concrete prescriptions by bringing a general idea of human flourishing to bear on a concrete situation." If this is true and the Movement has had a significant effect on law, one would expect to see an increase in the use of literature in judicial opinions, since judges routinely cite to works that have a direct impact on their decisionmaking. We should also expect to see works cited for the reasons the Movement wants them to be – to reveal that the fiction has evoked feelings of pity and empathy for the less fortunate and given a voice to traditionally marginalized segments of society. Neither of these things is true.

Unpacking this paragraph, I see the following claims: (1) whether the law and literature movement "has had a significant effect on law" can be assessed by instances when literature has a "direct impact" on judicial decisionmaking; (2) "central" claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with "knowledge about how to solve real world problems"; and (3) citations will demonstrate whether literature has a "direct impact" on a judge's decisionmaking.

Let's begin with the first claim: Whether the law and literature movement "has had a significant effect on law" can be assessed by instances when literature has a "direct impact" on judicial decisionmaking.

This claim begins with an assumption that having a significant effect should be measured by having a direct impact. But it is unclear why the significant effect must be a direct impact rather than an indirect one. Reading Orwell's 1984 might help shape how judges perceive surveillance and government power. Will it directly affect their decisions? Probably not, if direct effects mean that but for reading Orwell's book, a judge inclined to decide a case one way will now decide it another way. But it might have helped shaped a judge's mindset along with other works of literature and a number of other social and cultural experiences. It might have an indirect effect. The difficulty is that looking for direct impact is far too demanding a requirement.

On to the second claim: "Central" claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with "knowledge about how to solve real world problems"

I quarrel with the argument that a "central" claim of the law and literature movement is to make judges more empathetic or ethical, or to give them "knowledge about how to solve real world problems." I don't think that literature necessarily makes one more moral, ethical, or empathetic. Nor do I think that literature provides specific "solutions" to problems. Literature can provide a critique or commentary about the law. It can develop thinking, reasoning, and interpretive skills. It can provide insight into jurisprudential questions, and it can help people see between the lines, be more nuanced, recognize ambiguity, see different interpretations, and so on.

While there are some in the law and literature movement who have claimed that literature makes lawyers more ethical or empathetic, most have not made such claims. Todd's quote from Martha Nussbaum doesn't suggest she makes these claims. Instead, Nussbaum seems to be saying that literature can contain ethical teachings and that it embodies them in concrete situations. I agree with this. The fact that literature can illustrate an ethical prescription by embodying it in concrete situations doesn't mean that the reader will necessarily agree with the ethical prescription. Moreover, much literature is not dogmatic about any particular ethical or moral view -- it often demonstrates the ambiguities and tensions in various ideas. Literature is not the same as a philosophical or political argument. It is often more suggestive and ambiguous.

Finally, it's time to turn to the third claim that I've parsed out of Todd's essay: Citations will demonstrate whether literature has a "direct impact" on a judge's decisionmaking.

The legal academy has a fetish over citations. Because it is so fun and easy to play around with Westlaw, we can now readily do studies about citations. This data is quite interesting, but it is tempting to make too much of it.

What exactly does the lack of citations to literature mean? First, even if a literary work had a "direct impact" on a judge's decision, I doubt in many cases the judge would admit this. Judges often read and rely on law review articles they never cite. Judges might be informed by history, philosophy, sociology, economics, etc. and might not cite to such works. What would we think of the judge who writes: "For the reasons stated in Dickens' works, I hereby conclude that this case should be decided in favor of the 'little guy'"? Does a judge who is heavily influenced by a particular philosophy need to cite to specific philosophical works? So a judge influenced by Rawls might never cite to Rawls. Judge Richard Posner is influenced by pragmatism, yet he doesn't cite to works by William James or John Dewey in every opinion in which he employs pragmatic ideas. The bottom line is this: Cites don't necessarily prove influence or impact, or the lack thereof. They show how many times something has been cited to. People often read much more into cites than they should.

The influence of literature is quite indirect. It provides ideas and fodder for thought. But rarely does it have a direct bearing on any particular case. It doesn't hold any particular authority over the judge. It's not precedent. It doesn't provide a syllogistic argument or complete analysis of a particular problem. But it still might be influential. A judge might reason, interpret, think, and perceive things differently for having read certain works of literature. There's no easy way to measure this.

So that ends my critique, but on the positive side, I did find some really interesting facts in Todd's article:

* "In the Seventh Circuit, Judges Posner and Easterbrook combined for nearly all citations to fiction, and over 80 percent of all references to George Orwell."

* "On the Supreme Court, Justices Brennan and Douglas accounted for most references to Orwell. Judges have favorite authors or themes, and they cite to them again and again."

* [O]f the 110 Supreme Court justices who have served, only 21 have ever cited to the authors or works in this survey. The leading Supreme Court fiction citers are Justices Douglas, Stevens, Brennan, and Rehnquist, each of whom has cited to fiction around five times. These four justices account for almost 50 percent of all Supreme Court citations to fiction."

* "About half of all citations are about the law’s delay, the definition of legal terms, and the role of courts in our system, not about generating empathy for litigants."

* The most frequently cited authors are "George Orwell (61 citations); William Shakespeare (35); Franz Kafka (34); John Milton (20); Homer, Chaucer, and Oscar Wilde (14 each)."

* "[J]ustices appointed by Democrats or with an otherwise liberal voting record made almost 80 percent of all literary citations."

* "In the Supreme Court, nearly three-quarters of literary citations are in dissenting or concurring opinions (63 percent in dissenting; 27 percent in majority; and 10 percent in concurring). In the circuit courts, by contrast, the reverse is largely true, with about 64 percent in majority opinions and 36 percent in dissenting and concurring opinions."

I'm pleased to see Orwell and Kafka as being among the most-cited literary works. I once wrote about how conceptions of information privacy and computer databases are framed in terms of Orwell and how they might better be framed in terms of Kafka.

Cross-posted at Concurring Opinions.

Franz Kafka & Law Bibliography

There's a good bibliography of writings about Franz Kafka and the law by Christine Corcos, although it was last updated in 1995.

Josef K. -- Justice Denied. Again.

This is something I posted about a month ago on PrawfsBlawg, but it's relevant to this blog too, so I'll cross-post:

Judge Alex Kozinski and his law clerk, Alexander Volokh recently published an opinion by a panel on U.S. Court of Appeals for the 9th Circuit in a law review article. The article is called The Appeal, 103 Mich. L. Rev. 1391 (2005). The judges on the panel were Judges Alex K., Bucephalus, and Godot. No reason is given for the inexplicable delay, as the case was argued and submitted in 1926 but not decided until 2005. And no reason is given why the opinion was published in the Michigan Law Review rather than in the Federal Reporter. Shame on the panel!
The opinion begins:

The late Josef K., a thirty‑something male, claims that "[s]omeone must have slandered [him], for one morning, without having done anything truly wrong, he was arrested." T.R. 3.

The procedural history of this case is complicated and patchy, but what is clear is that, after being rude to his arresting officers, appellant came late to his initial interrogation and disrupted the proceedings. He refused to attend further interrogations, submitted no evidence or brief in his defense and repeatedly accused judicial authorities of corruption and incompetence.

He was apparently convicted, though the conviction does not appear in the record. On the eve of his thirty‑first birthday, K. was taken to a quarry by two guards and executed. "With failing sight K. saw how the men drew near his face, leaning cheek‑to‑cheek to observe the verdict. 'Like a dog!' he said; it seemed as though the shame was to outlive him." T.R. 231. As it has.

K. appeals, alleging unlawful arrest, inadequate notice, due process violations, systemic corruption, ineffective assistance of counsel and actual innocence. We affirm. . . .

The panel denied K.’s claims regarding his arrest:

Even though he was under arrest, K. was still allowed to "carry[] on [his] profession" and was not "hindered in the course of [his] ordinary life." T.R. 17. Also, K. admitted that the arrest "ma[de him] laugh," T.R. 47, and that, to the extent the incident tended to "spread the news of [his] arrest [and] damage [his] public reputation, and in particular to undermine [his] position at the bank," "none of this met with the slightest success." T.R. 48. Without cognizable harm, K. lacks standing to contest his arrest. De minimis non curat lex. . . .

While we're on the subject of trifles, we address K.'s claim that he was arrested without a warrant. At the time of the arrest, K. showed the guard his identification papers and demanded, in return, to see the guard's papers and the arrest warrant. T.R. 8. Not only was he not shown these, he was also told that the guards "weren't sent to tell" him why he was arrested. T.R. 5.

We see no problem. Before ordering an arrest, the authorities "inform themselves in great detail about the person they're arresting and the grounds for the arrest." T.R. 8. They don't "seek out guilt among the general population, but . . . [are] attracted by guilt . . . . That's the Law." T.R. 8‑9; see also Decl. of Penal Colony Officer ("Guilt is always beyond a doubt."); Gerstein v. Pugh, 420 U.S. 103, 113 (1975) (arrest warrant not necessary for arrest supported by probable cause).

The panel affirmed the conviction, denying poor K. justice once again (the first time being his sudden execution):

K.'s only clear claim is that he is innocent. See, e.g., T.R. 47, 148, 213. But how can K. credibly claim innocence when he admits to not knowing the law? T.R. 9. He might as well dispute what the meaning of "is" is. The fuss he makes about how innocent he feels "disturbs the otherwise not unfavorable impression [he] make[s]." T.R. 14. Especially ludicrous is his suggestion that no one can "in general be guilty," as "[w]e're all human after all, each and every one of us." T.R. 213. That's how guilty people always talk.

In any event‑‑and this is the nub of the matter‑‑we fail to see what's so special about being innocent. See Commonwealth v. Amirault, 677 N.E.2d 652, 665 (Mass. 1997) ("[O]nce the [criminal] process has run its course . . . the community's interest in finality comes to the fore."). We will assume, for the sake of argument, that K. did not commit the crime for which he was convicted and executed. Can we be sure that K. did not commit some other, worse crime, that was overlooked? To ask the question is to answer it. The law works in mysterious ways and that which should be done is presumed to have been done. It follows that that which was done needed doing. K. was convicted and executed after a legal process that, as we have seen, is unimpeachable. He must have deserved what he got.

The opinion concludes:

K.'s overarching complaint, that "the Law should be accessible to anyone at any time" and that he has been denied entry to it, T.R. 216, "rings hollow." Alex K., Scholarship of the Absurd: Bob Bork Meets the Bald Soprano, 90 Mich. L. Rev. 1578, 1583 (1992). The very existence of these proceedings has provided an entrance for K. to defend himself. K. has consistently refused to cooperate with court officials' repeated attempts "to straighten out his complex case, regardless of the time and cost." T.R. 251. No one else could gain admittance here, because this entrance was meant solely for him. If he nevertheless remained outside, he has only himself to blame.

This opinion is in flagrant disregard of the law. I am especially outraged that Judge Godot never attended oral argument, and the opinion has been written without any indication he has read the papers or discussed the case with the other panel members. Such a disregard for justice is Kafkaesque, to say the least.

Perhaps the most ironic opinion pertaining to Josef K. is a real one by the U.S. Supreme Court. In Joe Kafka v. United States, 121 S. Ct. 1365 (2001), the U.S. Supreme Court issued its typical one-sentence order, denying certiorari without explanation: “The petition for writ of certiorari is denied.” Recall the parable in The Trial: “Before the Law stands a doorkeeper. . . . The doorkeeper sees that the man is nearing his end, and in order to reach his failing hearing, he roars to him: ‘No one else could gain admittance here, because this entrance was meant solely for you. I’m going to go and shut it now.’” A one sentence denial of cert., without explanation . . . how appropriate for Josef “Joe” K.