Post on 25-Oct-2015
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Kafka and the question: Can there be a rule of law?
Peter Fitzpatrick
Birkbeck, University of London
Kafka’s ‘The Problem of Our Laws’: ‘...it is an extremely painful thing to be ruled by laws
that one does not know’. It could also be an extremely painful thing to be lecturing on Kafka
to an audience many of whose members will in all probability know more about him than I
do. But I look forward to it and look forward to talking with you, not just because of the
intellectual conviviality of these events but also because in talking with you I will learn more
about Kafka whom I consider to be a genius in his generative perceptions of the modern
condition, the ‘modern’ so-called.
So far, so unoriginal. Let me continue a little longer in the vein of unoriginality so as to
provide something of the standard views of Kafka’s work and of his idea of law in particular.
That will serve as a prelude to my predictable effort to argue for a contrary view. The very
word ‘Kafkaesque’, so the OED reminds us, denotes horror and despair in the face of the
deepest existential uncertainty, denotes a self-abnegation when confronted with an all-
pervading, tentacular, inscrutable and inescapable power. All of which takes on a focal
intensity when it comes to law – to quote Reza Banakar’s engagement with Kafka and law:
‘...the legal images in Kafka’s fiction’ come with ‘their bewildering, enigmatic, bizarre,
profane and alienating effects’ (1).
The most famed outing for Kafka’s law of course is The Trial, and especially the ‘parable’
that was extracted from the novel under the title ‘Before the Law’. With The Trial we have a
law and a legal officialdom that are elusive and ultimately quite out of reach, yet perplexingly
contained and palpable. One location of ‘the Court’ is in a dingy attic. And in another
location, people engage in sexual improprieties in the court room. The focal character, K,
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experiences these locations and the processes operating in them and is said to have a
competent knowledge of the law. He even feels he should effect his own execution, effect
what is yet the ultimate assertion of power over him. But he is also an outsider, someone
quite apart from the law, someone who professes not to know the court system. And the rules
are also unknown and unknowable. A priest, who is connected to the Court, chastises K for
‘cast[ing] about too much for outside help’ in dealing with his case ‘...especially from
women’ (232 and 233 of the Penguin edition’). More on that later. And in any case K’s guilt
for the unknown offence with which he seems to be charged is all along set and
unchallengeable. K’s perplexity is thence compounded for, as he notes at the beginning of his
ordeal, he ‘lived in a state governed by law..., all statutes were enforced’ (Schocken Edition
7).
So much of this seems to match our own experience and lack of experience of the law. If I
may return to the abstract and indulge in a touch of self-plagiarism:
We know very little of the law that rules us. Every time we take a ride on a bus or
order goods online, for example, we become bound by a complex of laws that we
know not of. And do we not have to seek specific legal decision because the law
is so often found to be uncertain? And can any law in its application to an ever-
changing world ever be certain? Yet we are supposed to live in a society
ultimately ordered and endowed with stability though a rule of law.
Not only that, the seminal authority of the Declaration of the Rights of Man and of the
Citizen in Article 6 would add: ‘Law is the expression of the general will. Every citizen has a
right to participate personally, or through his representative, in its foundation’. But are we
being fooled? Does our right to participate amount to anything more effective than K’s
efforts? And where is there any foundation of law apart from the surpassing power using it?
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These are questions considerably refined in one of your readings: ‘The Problem of Our
Laws’.
Here there is something of the disparity we encountered in The Trial. The laws are not
known. They are ‘kept secret by the small group of nobles who rule us’, nobles who ‘stand’
sovereignly ‘above the laws’ – laws ‘entrusted exclusively into their hands’ (437). And there
is as well an imperative quality to the existence of the nobility: ‘...nobody would dare to
repudiate the nobility… .The sole visible and indubitable law that is imposed upon us is the
nobility, and must we ourselves deprive ourselves of that one law?’ (438). Yet there is a
tradition to the law and it has been studied by the people in its application, so there is a
knowledge of the law, a knowledge which discerns ‘certain main tendencies which permit of
this or that historical formulation; but when in accordance with these scrupulously tested and
logically ordered conclusions we seek to adjust ourselves somewhat for the present or the
future, everything becomes uncertain, and our work seems only an intellectual game, for
perhaps these laws that we are trying to unravel do not exist at all’ (437-8).
With another of our readings, ‘Advocates’, there is something close to the same uncertainty
about knowing the law. Here it is an uncertainty about knowing whether you are within the
domain of the law, whether the surreal courts and corridors reminiscent of The Trial house
the law, whether an incessant and pervasive droning said to be characteristic of ‘a law court’
originated in ‘the place where one happened to be standing’ or whether ‘it came from a
distance’ (449). But, whatever the source of the droning or whatever the uncertainty of being
in law’s domain, there is a startling exhortation which concludes the piece: ‘So if you find
nothing in the corridors open the doors, if you find nothing behind these doors there are more
floors, and if you find nothing up there, don’t worry, just leap up another flight of stairs. As
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long as you don’t stop climbing, the stairs won’t end, under your climbing feet they will go
on growing upwards’ (451).
But even if we were impelled by that beautifully buoyant passage, to what possible effect
the sceptical may ask, given the brooding pervasion of that remote power found in the other
pieces we have considered so far. Could that effect only be the resigned, contemplative calm
of Alexander’s horse, the great Bucephalus, now the learned Dr Bucephalus, who along with
Alexander reached a limit – ‘[e]ven in his day the gates of India were beyond reach’ – who
finds it ‘best to...absorb oneself in law books. In the quiet lamplight, his flanks unhampered
by the thighs of a rider, free and far from the clamor of battle, he reads and turns the pages of
our ancient tomes’ (415). Or perhaps and in a more dismal vein, the possible effect would be
that found in ‘The Refusal’ where the custodian of the village’s law weakly succumbs
whenever his petitions are refused by the representative of a remote authority. And yet,
always ‘yet’ with Kafka, remote authority does not always have the actual last word and its
reach is inevitably limited. So in Kafka’s ‘The Great Wall of China’ we find that there can be
‘no contemporary law’ where ‘long-dead emperors are set on the throne in our villages, and
one that only lives in song recently had a proclamation of his read out by the priest before the
altar’ (MML 54).
That brings us, with a touch of inevitability, to Kafka’s famed and lurid account of the
limits of authority and of its pathology – ‘In the Penal Colony’. The details are perhaps not
best indulged in before your supper but, very briefly (it is one of ‘the longer stories’ that
could not be run off for you for reasons of copyright), the setting is a penal colony in which
there is a machine that executes those who break the law. It does this by inscribing the letter
of the law on their bound bodies and doing so over a long period – twelve hours in all, the
words eventually piercing all the way through the body. The story is about a particular
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execution or attempted execution. The law to be inscribed is ‘HONOR THY SUPERIORS’
(144). It is to be inscribed on the body of a condemned man whose duty it was throughout the
night to salute the door of a captain at regular intervals. He sleeps through one saluting slot, is
caught out by the captain, vigorously resists being arrested by him and, in all, is to be
executed. The main character, however, is an officer who superintends the execution and who
describes the machine to another character, a visiting explorer, in terms of its autonomy and
functional perfection – ‘it works all by itself’ (141): ‘No discordant noise spoiled the working
of the machine’ (154). ‘It is effective in itself’ (154). ‘[M]ovements [of a key section] are
precisely calculated’ (143).The machine was the invention of a former and omnicompetent
Commandant of the colony. The officer proudly shows the Commandant’s plan of the
machine to the explorer who finds it entirely inexplicable.
The range of set determinations of which the machine is the symbol and instrument extends
to the status of the condemned man. His ‘guilt is never to be doubted’ (145). He is entirely
submissive, even taking a compliant interest in the whole proceedings. And with executions
generally, and as the officer claims, ‘just about the sixth hour’ of the machine’s inscribing the
law, a luminous ‘enlightenment’ (more accurately translated as ‘understanding’) shines out of
the face of the condemned when they ‘begin...to understand the inscription’ (150) –
internalise it as it were.
But with this particular planned execution, it soon becomes evident that all is not well with
either the machine or the penal regime that it comprehensively characterised. For a start, the
whole scene has a stark solitariness to it. There is only the officer, the explorer, the
condemned man and a soldier who guards him, all set along with the machine in a desolate
landscape. This contrasts to the glory days when ‘[a] whole day before the ceremony [of
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execution] the valley was packed with people’ (153) wanting to come to it. ‘It was impossible
to grant all the requests to be allowed to watch it from nearby’ (154).
The lack of popular concern and commitment is not the only problem however. There is a
new regime, a new Commandant and it becomes interstitially evident that the colony is
changing and that neither the officer nor the machine fit into the new scheme of things. So,
whereas the machine inevitably required occasional replacement parts, now those parts are
not so forthcoming and the machine now creaks with incipient dysfunctions. Furthermore,
both the condemned man and the soldier supposedly guarding him act in undisciplined,
almost casual ways. Generally, the machine and its concordant regime are no longer the focal
force of the colony but are increasingly marginalised and set apart. It becomes evident, and
repeatedly so, that the new Commandant is much influenced by ‘the ladies’ seemingly always
around him.
The dénouement is as gruesome as it is abrupt. The condemned man is strapped into the
machine but the officer, realising that ‘the time has come’ (160), that all for him is at an end,
frees the condemned man in a farcical scene and substitutes himself in the machine. With that
sacrifice the machine can for one terminal time complete its intrinsic function of dealing
death, of effecting finality. Which it proceeds to do, but in the process its functioning
becomes a horrifying malfunctioning. As the machine fragments, it still performs its final
function but in a way that dissipates the ability of the machine itself to inscribe the law. So
the legal text the officer wants to have inscribed in and through his body, ‘BE JUST’ (161),
itself dissipates as ‘the machine was obviously going to pieces’ (165). It ‘was not writing, it
was only jabbing’, and ‘this was no exquisite torture’ suffused with a radiant ‘enlightenment’
or ‘understanding’ – ‘this was plain murder’: ‘no sign was visible of the promised
redemption’ (165, 166).
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In the final scene, the explorer visits the hidden grave of the old Commandant which
contains this inscription: ‘There is a prophecy that after a certain number of years the
Commandant will rise again and lead his adherents from this house to recover the colony.
Have faith and wait!’ (167). This is something which ‘the bystanders’ seem to find
‘ridiculous’ (167). Towards the end of the story, when the explorer is leaving the colony, the
once-condemned man and the soldier seem desperately to want to go with him. But he repels
them. He does not want to engage with them. Perhaps he is repulsed by the whole experience.
But in any case he is only an explorer.
A footnote on death, on dealing death: which like most academic footnotes concentrates
the most important thing that should be dealt with in a paper, but which isn’t. Death was once
the inexorable culmination and even conclusion of proceedings in the penal colony. The
execution of K in The Trial climaxes that supposedly incomplete novel – an execution that he
felt somewhat impelled to effect himself. The dealing of death becomes ostensibly the
ultimate assertion of the law, at least the law as the instrument of authority. The force of that
authority is starkly set in Kafka’s story ‘The Judgment’ in which a son who is becoming
comfortably involved in life and in the family business in particular – taking over from the
father, kills himself in self-abnegation when the father, as the figure of complete authority,
issues an insane judgment that the son must do so (87-8).
There will be some responsible return to the footnote, but taking up the story in its broad
expanse, we seem to be left with two seemingly opposed notions of law. One (let’s call it law
1) seems to correspond uneasily with standard notions of the rule of law – a law that is set,
predictable, calculable, a law we internalize and live by. Perhaps this is even a law that can
prescribe death if it is not lived by. At least a law that, borrowing Derrida’s coincident
description of law, ‘cuts’ into possibility and ‘violently’ determines what is to be. But what
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Kafka’s story affirms is the impossibility of invariance. As the operative concentration of the
law and life of the colony, the machine is inevitably inadequate. The calculable, the
mechanical, the supposedly predictable are not enough. Without a viably responsive and
incorporative regard for all that may come to the law and affect it, the law will fragment,
dissipate, no longer cohere. And we know from historical instances that the result can, like
that in ‘A Penal Colony’, be a bloody mess and ‘plain murder’. Even, or especially, the effort
to stay the same, or ostensibly the same, calls for this responsive regard. The point is
encapsulated in the advice of the progressive nephew to his aristocratic uncle who is resisting
the transformation that comes with Italy’s Risorgimento: ‘If we want things to stay as they
are, things will have to change’ (2007: 19).
Law then, to ‘be’ effectively law and a rule of law, has (also) to be something else
(besides) law 1, and here we come to what can be called law 2, or as a play on that, law too
because this is a dimension of law that is characteristically relegated to the marginal – a
matter of occasional adjustment to law 1. And law 1, in a further play on the number, would
purport to be the one, the only real, perduring law. Law 2 in Kafka’s colony is aptly enough
only intimated. All we know of the new Commandant is that his law would be opposed to the
machine. It is a law opposed to and undermining of fixity and of the assertion of determinate
completeness in and as law. Law 2 is a law yet and always to be revealed. It is a law ever
accompanied with the prospect of a return of law 1 – a return with, for example, the
resurrection of the old Commandant. And it is a law in relation to which the new
Commandant is in thrall to ‘the ladies’ – much like, it would seem, K in The Trial being
chastised for seeking the guidance of women in pursuing his legal case. If ‘the ladies’ could
also be temporarily relegated to the footnote category, I will return to them after taking these
two dimensions of law to the scene of Kafka’s most famed engagement with the law – that is
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his ‘parable’ ‘Before the Law’, and here I will draw on some, but not many, of the seemingly
numberless engagements with this text.
The prospect is not at first glance a promising one. The original location of the parable is in
The Trial nearing the end when K comes to place, or misplace, some trust in an ostensibly
obliging priest who ‘belong[s] to the Court’ (235 old Penguin ed) and with whom K engages
in the hope of finding some way of influencing the Court or avoiding its jurisdiction. The
priest is quick to disabuse K and says that his ‘particular delusion’ has already been dealt
with ‘[i]n the writings which preface the Law’ (235). As you know, the parable tells or seems
to tell of someone persistently denied any access to the law, to a law that seems ever beyond
him. This is a tightly packed parable, but a summary could go like this: ‘A man from the
country...begs for admittance to the Law’. He begs the official door-keeper, the first in a
hierarchy of keepers who exert exclusive power over entry to the law. This door-keeper
refuses immediate entrance through the open doorway to the law but, and this is crucial, he
does not rule out the possibility of later entry. After a lifetime of waiting by the door and
seeking to persuade the official to let him enter, the man from the country is near death: ‘all
that he has experienced during the whole time of his sojourn condenses in his mind into one
question’. He says to the door-keeper:
‘Everyone strives to attain the law...how does it come about, then, that in all these
years no one has come seeking admittance but me? The door-keeper perceives
that the man is at the end of his strength and his hearing is failing, so he bellows
in his ear: ‘No one but you could gain admittance through this door, since this
door was intended only for you. I am now going to shut it’.
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With that the parable ends and the multitude of interpretations begins, starting with the debate
between K and the priest in Kafka’s novel. The contrary yet co-existing dimensions of law
are encapsulated by the priest at the outset of the debate:
The story contains two important statements made by the door-keeper about
admission to the Law, one at the beginning, the other at the end. The first
statement is: that he cannot admit the man at the moment, and the other is: that
this door was intended only for the man. If there were a contradiction between the
two, you would be right and the door-keeper would have deluded the man. But
there is no contradiction. The first statement, on the contrary, even implies the
second.
There is no ‘moment’ in which we can enter, assuredly know or attain, the law – a law ever
receding from gate to gate, yet a law ‘radiantly’, ‘inextinguishably’ emanant – a law which,
after all, was lurking in the parable on ‘The Problem of Our Laws’: ‘but when in accordance
with these scrupulously tested and logically ordered conclusions we seek to adjust ourselves
somewhat for the present or the future, everything becomes uncertain’ – becomes incapable
of being fixedly enclosed, of having the door shut on it as it were.
This, in short, is law 2 – a law the entry to which has always to be deferred because it
cannot ‘be’ in any amenable, realized form. This is a law which Derrida in his engagement
with Kafka’s text finds to be ‘essentially inaccessible’ (Before 199). So, even as the door of
the law ‘open[s] on nothing, before nothing, the object of no possible experience’ (ref.), and
even as this law for Derrida is ‘still non-existing, a law still ahead, still having to and yet to
come’ (Force 270 – different context). Yet it is not simply a vacuity. For Derrida, ‘before the
law...in Kafka’s sense’ evokes what he calls a law of originary sociability’ which is ‘prior to
all determined law,...but not prior to law in general’ (Friendship 231). This is a law which
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equates to our own particularity, our finitude, as that finitude is related to and realized in our
being-with each other. Like the man from the country, we are enticed by this law, fixed in its
very non-fixity to ‘the inaccessible [that] incites from its place of hiding’ (Before 191). Still,
‘[o]ne cannot be concerned with the law...either at close range or at a distance, without asking
where it has its place and whence it comes’ (Before p.?). Law, that is, still ‘presents or
promises itself’ (Before 199). There must still be law 1 if law is to be realized, determinate
enforceable. As with K in The Trial we may know a knowable law but the law is also and
always beyond us.
In all, law 1 and law 2 are mutually constituting. Each depends integrally on the other. And
any resolution ‘for the time being’ of their competing imperatives can only be temporarily
‘negotiated’ (ref.) – ‘negotiated’ in the sense of figuring a passage between them and not in
the sense of effecting a compromise between them since neither dimension of law, 1 or 2, can
be itself compromised – law provides both an ultimate assurance and an ultimate opening to
being otherwise. The only end of this generative disparity with-in our lives, the only closing
of the ‘door of the Law’, comes with death. It is only when the life of the man from the
country ‘is drawing to a close’ that the keeper can shut the door.
That deals with one footnote. The other concerns ‘the ladies’ of the penal colony or, for K,
the women whom he was chastised for consulting about his case. And here, by way of a
somewhat abrupt summary of our whole proceedings so far, we can call on Hélène Cixous
and her engagement with Kafka’s Before the Law’. Cixous finds here a ‘feminine law’ which
she sets against a masculine law – the masculine as an invariant law having a determined
origin. For Cixous there is an illimitable wildness, a ‘femininity’ generating law – a law
which for Cixous ‘has no material inside’, ‘does not exist’, ‘does not take place’, ‘cannot be
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defined’, but which takes on definition, ‘happens’, in an ‘opening and closing’. Law 1 and
law 2, each and both. And on that gnomic note I bring this talk to an aptly indefinite end.