Kafka's Indictment of Modern Law

Douglas E. Litowitz

• Publisher: University Press of Kansas
• Year: 2017
• Print ISBN: 9780700624737, 9780700624737
• eBook ISBN: 9780700624744
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

The legal system is often denounced as “Kafkaesque”—but what does this really mean? This is the question Douglas E. Litowitz tackles in his critical reading of Franz Kafka’s writings about the law.

Going far beyond Kafka’s most familiar works—such as The Trial—Litowitz assembles a broad array of works that he refers to as “Kafka’s legal fiction”—consisting of published and unpublished works that deal squarely with the law, as well as those that touch upon it indirectly, as in political, administrative, and quasi-judicial procedures. Cataloguing, explaining, and critiquing this body of work, Litowitz brings to bear all those aspects of Kafka’s life that were connected to law—his legal education, his career as a lawyer, his drawings, and his personal interactions with the legal system. A close study of Kafka’s legal writings reveals that Kafka held a consistent position about modern legal systems, characterized by a crippling nihilism. Modern legal systems, in Kafka’s view, consistently fail to make good on their stated pretensions—in fact often accomplish the opposite of what they promise. This indictment, as Litowitz demonstrates, is not confined to the legal system of Kafka’s day, but applies just as surely to our own.

A short, clear, comprehensive introduction to Kafka’s legal writings and thought, Kafka’s Indictment of Modern Law is not uncritical. Even as he clarifies Kafka’s experience of and ideas about the law, Litowitz offers an informed perspective on the limitations of these views. His book affords rare insight into a key aspect of Kafka’s work, and into the connection between the writing, the writer, and the legal world.

PART I

Exegesis

1

Kafka’s Life in the Law

Kafka was born in 1883 and died of complications from tuberculosis in 1924, shortly before his forty-first birthday, but he was connected to law for the entirety of his adult life. Kafka majored in law during his university years from 1901 to 1906, he was a law clerk in 1907 and worked briefly at an insurance agency in the same year, and then in 1908 he settled into a position as an attorney for the Workers’ Accident Insurance Institute for the Kingdom of Bohemia in Prague, a job he held from 1908 to 1922, when he took a final medical leave.

Kafka’s diaries and letters express profound boredom with legal education and the practice of law. But despite these outward protestations, or perhaps because of them, he often wrote about the law, not only in his best-known novel The Trial and the short story “Before the Law,” but also in many published and unpublished manuscripts that we will shortly examine. By most accounts, Kafka was a rather undistinguished law student, but in practice he was a diligent and accomplished lawyer who was repeatedly promoted. He kept to a schedule of working at the office from 8 AM to 2 PM, so his writing was done mostly at night or during medical leaves. As we shall see, one of Kafka’s greatest achievements was to function as a legal insider during the day and then write about the legal system from the perspective of outsiders at night.

Kafka studied law at the Karl-Ferdinand University in Prague (more generally referred to as Charles University in Prague), obtaining a doctorate in law. Being a “doctor of jurisprudence” meant that others referred to him as “Dr. Kafka,” a term that garnered respect and is inscribed on his gravestone. The university at that time was divided into German and Czech divisions, although the German unit that Kafka attended was more prestigious, since at that time, prior to Czech independence following World War I, German was the official language of government and business.

Kafka’s program of study and transcript have been preserved, and they clearly indicates that he studied Roman law and legal history, economics, and canon law, as well as typical courses in criminal law, commercial law, administrative law, and international law.¹ To earn the degree, Kafka had to pass three state examinations administered by professors at the university, and he wrote a thesis entitled “German and Austrian State Law, Common Law, and Political Economy.”²

Kafka made no secret of his dislike for law. In his letters and diaries, he referred to Roman law as “disgusting” and meaningless,³ and he said that the study of law involved chewing sawdust that countless students had already chewed.⁴ The study of law was not Kafka’s first choice; he originally picked chemistry but was deterred by the laboratory work, and then furtively explored the idea of studying philosophy and German language and literature, before finally settling on law. In explaining this move, he professed an indifference to all of the subjects taught at the university, or as he would later describe the decision, “It was a matter of finding a profession that would be most likely to allow me to indulge this indifference without injuring my vanity too much. Law was the obvious choice.”⁵ Yet despite Kafka’s professed boredom with and disinterest in law, he ended up writing a great deal about law, and there is a sense in which his writing—certainly in comparison to other writers of legal fiction—mirrors the density, terseness, and formality of legalese. His stories and letters are peppered with legal terms, at times referring to his childhood as a trial, admitting that his lengthy letter to his father was full of lawyer’s tricks, and referring to his broken engagement as a court proceeding.⁶ Much of his novel The Castle reads as contrasting passages where each side makes arguments in favor of their interpretation of events or documents, very much in the manner of legal briefs. Even if Kafka professed indifference toward law, or claimed that it was solely a meal ticket for him, his writing reveals a deep fascination with law and legal systems.

After obtaining the doctorate, passing the state exams, and completing his clerkship, Kafka was ready for employment. With the help of an uncle, Kafka found a position at an insurance agency, the Assicurazioni Generali, where he worked long hours. His job application has been preserved to this day, and it includes a curious statement that he had no intention of remaining in the legal profession; it is not clear whether he meant this earnestly or merely said it as a strategy to get the job, that is, to demonstrate a commitment to insurance rather than law.⁷ But in any event, Kafka disliked the insurance position in large part because of the long hours, which prevented him from writing at night, though he did express to friends an interest in insurance law, and he would soon end up spending his career in the field of workers’ compensation, which is a type of insurance.

At this juncture in his life, Kafka had been writing for his own enjoyment and for a small circle of friends, most notably Max Brod, a classmate Kafka met at the university after a lecture where Brod spoke on Schopenhauer and was critical of Nietzsche, whom Kafka defended. The two became best friends for the remainder of Kafka’s life. Brod was a tireless promoter of Kafka’s fiction, and after Kafka’s death, Brod assumed the role of literary executor, editor, archivist, and biographer. Largely through Brod (who had a successful literary career well before Kafka’s), Kafka was exposed to literary circles in Prague and became increasingly serious about writing for a public audience, and it was also through Brod’s connections that Kafka came to the attention of publishers and received positive reviews and a prestigious award for his writing. Both Kafka and Brod had law degrees and held daytime jobs (Brod worked for the post office) and wrote at night and on holidays.

When it became clear that the insurance job left Kafka very little time for writing, he immediately plotted an alternative route by taking courses at the Prague Commercial College in the newly emerging field of workers’ compensation insurance. One course was taught by a man who would soon be Kafka’s boss as managing director at the Workers’ Accident Insurance Institute for the Kingdom of Bohemia in Prague (the “Institute”), the local branch of the newly formed governmental agency that administered workers’ compensation schemes throughout Austro-Hungary. Although Jews were not generally hired by the Institute (there was only one other), Kafka had a connection that he likely exploited: the Institute’s head was the father of a childhood friend. Presumably, this led to Kafka being hired at the Institute in 1908. He would earn steady promotion until his retirement in 1922, when he was permanently disabled from tuberculosis. All told, Kafka was employed at the Institute in a legal capacity for fourteen years.

The Institute

The Institute was a newly created bureaucratic arm of the Austro-Hungarian Empire, formed at the turn of the century to administer a nascent workers’ compensation scheme. The Institute was semigovernmental in the sense that the government chartered it, yet it was funded as a private concern based on contributions from private employers. In its formative years (before Kafka’s arrival), the Institute ran at a severe deficit because employers’ contributions were based solely on the number of employees, a figure that employers would drastically underestimate; later, the employers’ mandatory contributions were keyed to classification of businesses according to risk factors in addition to the number of employees, resulting in a higher rate of contributions (in other words, the Institute became increasingly viable during Kafka’s tenure). Kafka’s duties at the Institute included tasks that we would normally associate with a lawyer who works for a state workers’ compensation agency, including “classifying businesses according to their risk quotient,” “organizing inspections,” “[drafting] appeals against the companies’ objections,” and “represent[ing] the Institute in court.”⁸ The court system that governed workplace accidents and insurance assessments was a highly decentralized network of local administrative offices, panels, and tribunals. In addition to his work in the Institute’s central office in Prague, Kafka was assigned a territory of Northern Bohemia where he inspected factories and determined the risk quotient for workers. On these trips, much of his time was spent wandering around the industrial towns and observing how the workers lived, gathering material that would later surface in his fiction.⁹ At one point, Kafka wrote to his best friend, Max Brod, about the endless industrial accidents:

In my four districts—apart from all my other jobs—people fall off the scaffolds as if they were drunk, or fall into the machines, all the beams topple, all embankments give way, all ladders slide, whatever people carry up falls down, whatever they hand down they stumble over. And I have a headache from all these girls in porcelain factories who incessantly throw themselves down the stairs with mounds of dishware.¹⁰

Many commentators have made the obvious point that this line of work affected Kafka’s fiction, both in his depiction of alienated outsiders and in the formal legal style of his fiction. Interestingly, Kafka’s writings from the Institute have been preserved, and some of them (a rather small number, actually) show a marked similarity to his fiction. One oft-cited example is the similarity between his passage from an Institute report (appearing first below) and a passage from his story “In the Penal Colony”:

Not only all precautionary measures but all safety devices as well have failed in the face of this danger, either because they have proved to be totally insufficient, or because they have on the one hand lessened the danger (by securing the blade-slot with automatic blade-guards or by a diminution in the size of the blade-slot itself) but on the other hand actually increasing it by not leaving enough space for the wood shavings to fall through, so that the blade-slot becomes clogged and the plane operator frequently incurs an injury to his fingers when he attempts to free the slot of the shavings.¹¹

It was a huge affair. The Bed and the Designer were of the same size and looked like two dark wooden chests. The Designer hung about two meters a bove the Bed; each of them was bound at the corners with four rods of brass that almost flashed out rays in the sunlight. Between the chests shuttled the Harrow.… Both the Bed and the Designer have an electric battery each.… As soon as the man is strapped down, the Bed is set in motion. It quivers in minute, very rapid vibrations, both from side to side and up and down.¹²

Both of these passages are extremely dense and flat, as if refusing to rise above the descriptive mode for some type of normative assessment; that is, the morality has been carved out.

At other times, Kafka could be a staunch defender of insurance and workers’ rights. Consider also the following passage in the Institute’s Annual Report for 1908 where Kafka summarizes the changes that the Institute wanted to make to the existing “inadequate” law: “[Once the law is changed], the Institute will no longer be met with open and covert hostility from both sides, as unfortunately so often happens today, since people have become accustomed to viewing the Institute as the originator of all shortcomings in accident insurance, while it is only the guiltless representative of a law that is perhaps inadequate, and in this case, inadequately interpreted as well.”¹³ At the same time, Kafka’s black humor seeps through his official writings, such as when he wrote in the annual report that during the years before it obtained adequate funding from employers, “the Institute seemed to simply be a corpse, whose only living element was its growing deficit.”¹⁴

Perhaps the Institute most affected Kafka in terms of how the injured workers accepted their injuries as inevitable, something that Kafka conveyed to friend Max Brod: “How modest these men are; instead of storming the Institute and smashing it to little pieces, they come and beg.”¹⁵ In addition, the records of the Institute reflect that there were situations where employers sought to subvert or outright cheat the Institute, and there was at least one occasion where Kafka had to bring a criminal action against a business that fraudulently classified itself in a manner to pay an inadequate amount of workers’ insurance. In any event, Kafka spent his entire adult life working at the Institute, his only other work experience being the previous position in an insurance company and brief tenures at his father’s “fancy goods” store (e.g., accessories), not to mention a brief stint managing an asbestos factory in an ill-fated family venture, which will be discussed later in this chapter. The crucial point with respect to Kafka’s experience as an attorney is that the Institute shaped his view of the law by exposing him to injured workers caught up in a bureaucratic maze, but however much he complained about this job (and he complained disproportionally in comparison to the demands of the job), he kept the job, and there is no indication that he sought other employment.

Indeed, despite Kafka’s oft-repeated complaints that the office is a “horror,” and that “writing and office cannot be reconciled,” the truth of the matter was that Kafka had a good job and was well treated and well compensated.¹⁶ He was steadily promoted, from deputy clerk in 1908, to trainee in 1909, to law clerk in 1910, to vice secretary in 1913, to secretary in 1919, to chief secretary in 1922. After only two years at the Institute, he was already writing large sections of its annual report, and he was made head of the Appeals Department, which handled objections by employers about the risk assessment placed on their companies. In his third year, he was authorized as an accredited representative of the Institute. By all accounts, Kafka was well liked at the Institute, particularly by his mentor, with whom he could discuss literature. It is true that Kafka was only one of two Jews at the Institute, and he told Max Brod (who was inquiring about a possible position at the Institute for another Jew) that the Institute would simply not consider any more Jews. But toward Kafka, there did not appear to be any measurable anti-Semitism, and the Institute gave Kafka repeated raises and plentiful time to recuperate from his illness. By one contemporary estimate, he earned the modern-day equivalent of $90,000 for a thirty-six-hour, six-day workweek in a public secto...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Introduction: An Outline of the Project
• Part I: Exegesis
• Part II: Interpretation
• Conclusion: Was Kafka Correct about Modern Law?
• Notes
• Index
• Back Cover