Kafka's Law

After an era where vade mecum's included kitty litter such as God is My CoPilot (the big guy's presumably flattered to share the joystick) and the Business Secrets of Attila The Hun (the latter was presumably a hit at Bear Stearns) it was nice this morning to encounter 'In Search of Heimat: A Note on Franz Kafka's Concept of Law' by Reza Banakar in (2010) 22 Law and Literature  on SSRN.

Banakar asks

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?

He uses Kafka's newly-fashionable "office writings" - Franz Kafka: The Office Writings (Princeton University Press, 2009) edited by Stanley Corngold

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.

Banaker examines

Kafka's "rhetoric" while paying special attention to his day job as an insurance lawyer and a bureaucrat and to his legal and clerical writings, which show he borrowed material from the cases he was involved in to develop some of the characters, settings and images in his fiction. Joseph K. and his inexplicable experience of the law in The Trial were, for example, born out of an actual legal case, while Gregor Samsa and his bizarre transformation into an insect in Metamorphosis were inspired by Kafka's daily work experience. Would Kafka have thought the way he did, constantly striving "to interpret discourse that looks like one thing but might well be another" – often its opposite – had he not been leading a dual life, practicing law during the day and producing fiction during the night? His day job as an insurance lawyer and his nighttime preoccupation as a fiction writer both involved creative writing, one belonging to the world of modern work, the other to art. In Kafka's fiction these two separate worlds merge to uncover the inner contradictions of modernity. ...

The legal aspects of Kafka’s work do not, admittedly, explain his "linguistic imagination", but throw new light on the link between law and his images of legality. They also challenge some of the previous readings of Kafka's work that emphasize the theological, psychoanalytical, ontological, historical, metaphysical and existential interpretations of his fiction at the expense of exploring the role of law in his narratives. It might indeed be true, as noted by Albert Camus, that Kafka's novel The Trial is "the diagnosis", while "The Castle imagines a treatment". This should not, however, distract us from also considering the significance of Kafka's choice of criminal proceedings when making "the diagnosis", and private law when searching for a "treatment". Is Kafka's choice of law arbitrary or does it resonate a concern with the rise of modernity which engaged legal and social theorists of the time? More importantly, does Kafka offer an insight into the complexity of the relationship between modern law, justice and bureaucratic forms of organization, not explored by his contemporaries or by later legal scholars?

I wonder about assumptions regarding modernity, law and bureaucracy (irrational, indifferent or otherwise), given the omnipresence of law and procedure in steam age writers such as Stifter, Balzac, Fontane and Dickens.

Meanwhile, after coffee with Bill, I'm doing a fast re-read of The Big End of Town: Big Business and Corporate Leadership in Twentieth Century Australia (Cambridge University Press, 2004) by Grant Fleming, David Merrett & Simon Ville before looking at How Terrorism Ends: Understanding the Decline and Demise of Terrorist Campaigns (Princeton University Press, 2009) by Audrey Cronin.