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).

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. 

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.

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Kafka had published a few works during his lifetime, a great many stories, parables, letters, and diary entries were unpublished, as were Kafka's two great book masterpieces, The Trial and The Castle.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

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.