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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.