Kafka and Legal Indeterminacy

As a fascinating supplement to the debate over the "objectivity" of law that we'll begin this week, I have assembled some stuff by and about the author Fraz Kafka. Kafka's writing about the law expresses, in powerful fiction, much of what Pierre Schlag and other critical legal scholars express in their theoretical writings.

In stories like The Penal Colony, the Castle, and of course, The Trial, Kafka has characters trapped in a system of rules and laws they know very little about. Often, they don't even know what they've done to get them in trouble with the law, nor do they know exactly WHO is responsible for the laws and their enforcement. "The Law," for Kafka, is often a mysterious topoi, a place with unclear standards for admission, membership, innocence and guilt.

Within Kafka's famous legal novel, The Trial, there is another story, entitled "Before the Law."

BEFORE THE LAW stands a doorkeeper. To this doorkeeper there comes a man from the country and prays for admittance to the Law. But the doorkeeper says that he cannot grant admittance at the moment. The man thinks it over and then asks if he will be allowed in later. "It is possible," says the doorkeeper, "but not at the moment." Since the gate stands open, as usual, and the doorkeeper steps to one side, the man stoops to peer through the gateway into the interior. Observing that, the doorkeeper laughs and says: "If you are so drawn to it, 'just try to go in despite my veto. But take note: I am powerful. And I am only the least of the doorkeepers. From hall to hall there is one doorkeeper after another, each more powerful than the last. The third doorkeeper is already so terrible that even I cannot bear to look at him." These are difficulties the man from the country has not expected; the Law, he thinks, should surely be accessible at all times and to everyone, but as he now takes a closer look at the doorkeeper in his fur coat, with his big sharp nose and long, thin, black Tartar beard, he decides that it is better to wait until he gets permission to enter. The doorkeeper gives him a stool and lets him sit down at one side of the door. There he sits for days and years. He makes many attempts to be admitted, and wearies the doorkeeper by his importunity. The doorkeeper frequently has little interviews with him, asking him questions about his home and many other things, but the questions are put indifferently, as great lords put them, and always finish with the statement that he cannot be let in yet. The man, who has furnished himself with many things for his journey, sacrifices all he has, however valuable, to bribe the doorkeeper. The doorkeeper accepts everything, but always with the remark: "I am only taking it to keep you from thinking you have omitted anything." During these many years the man fixes his attention almost continuously on the doorkeeper. He forgets the other doorkeepers, and this first one seems to him the sole obstacle preventing access to the Law. He curses his bad luck, in his early years boldly and loudly; later, as he grows old, he only grumbles to himself. He becomes childish, and since in his yearlong contemplation of the doorkeeper he has come to know even the fleas in his fur collar, he begs the fleas as well to help him and to change the doorkeeper's mind. At length his eyesight begins to fail, and he does not know whether the world is really darker or whether his eyes are only deceiving him. Yet in his darkness he is now aware of a radiance that streams inextinguishably from the gateway of the Law. Now he has not very long to live. Before he dies, all his experiences in these long years gather themselves in his head to one point, a question he has not yet asked the doorkeeper. He waves him nearer, since he can no longer raise his stiffening body. The doorkeeper has to bend low toward him, for the difference in height between them has altered much to the man's disadvantage. "What do you want to know now?" asks the doorkeeper; "you are insatiable." "Everyone strives to reach the Law," says the man, "so how does it happen that for all these many years no one but myself has ever begged for admittance?" The doorkeeper recognizes that the man has reached his end, and, to let his failing senses catch the words, roars in his ear: "No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it."

I'd love to see some discussion about what you think this story means. Here are some quotes from legal scholars about how to interpret Kafka's work:

One scholar writes about how Kafka's characters stand in relation to the law:

Kafka's ambivalence about the law gets played out in his fiction, where the law vacillates between the sacred and profane. Most of Kafka's writings on the law - including the major novels The Trial and The Castle - are about victims
who seek the law as if it were a symbol of protection, order, and acceptance. Yet Kafka's characters never reach the law, instead shuffling between doorkeepers and administrators, always desperately hoping that justice will somehow be found, and in the end it usually turns out that the law is a disappointing mess of elusive rules endlessly administered by petty bureaucrats. In extreme stories such as "The Problem of Our Laws" (Glatzer, p. 437) and "The Refusal" (Glatzer, p. 263), the search for law turns up nothing but empty rhetoric, but the more prevalent theme in Kafka's fiction is that the law involves an exhausting process of endless delay, typified in the haunting parable " Before the Law" (Pasley, p. 148), where the protagonist dies while awaiting permission to enter the law.

...and...

Kafka's legal fiction is also distinguished by his refusal to provide a crusading protagonist who achieves justice by wielding the sword of the law to strike down oppression. Whereas popular novels like Harper Lee's To Kill a Mockingbird and John Grisham's A Time to Kill tell the story of an outsider who is unjustly accused of a crime and somehow manages to find an ally within the legal system, Kafka's outsiders never find a champion - instead, they internalize their subjugation to the point where they expect and even learn to enjoy having their claims denied. Kafka suggests a dark world where injustice not only remains unchallenged but is also actively experienced as normal. This sentiment is expressed brilliantly in the short story "The Refusal" (Glatzer, p. 263), where the townspeople breathe a sigh of relief when their demands are refused by the lowly official who governs the town. Such characters have only an inchoate and vague sense of their own exploitation, and they seem doomed by an inability to challenge the system in which they are caught up, a state of mind that Kafka illustrates in the final act of [*108] The Trial, where the central character leads his executioners to the place where he will be
slaughtered.

[Douglas E. Litowitz, "Franz Kafka's Outsider Jurisprudence," Law and Social Inquiry, Winter, 2002]


Speaking specifically of the "Before the Law" parable, one scholar writes:

"Franz Kafka's many commentators disagree about the identity of the protagonist of "Before the Law," the extended parable that serves as THE TRIAL'S centerpiece. Is it (a) the man from the country; (b) the guardian at the door; or (c) Joseph K. himself, the "hero" of The Trial, who, according to some, serves as an unwitting and obtuse doppelganger of the man from the country (more on K. in a moment)? Although good cases have been made for a, b, c, or all three, in my view, the real protagonist of "Before the Law" is the Law itself.

To begin with, whatever (or whoever) the Law may be, it has undeniably mystical--even spiritual--trappings. The man from the country, we are told, "perceive[s] a radiance that streams immortally from the door of the Law" (214). More to the point, Joseph K. hears the parable not in a court of law but in a cathedral, and it is a priest, not a lawyer or a judge, who tells it to him. In the end, however, the supreme function of Law in "Before the Law" is to define and deconstruct the very human relationships between the man from the country, the doorkeeper, and ultimately Joseph K. The process is twofold.

The Law is master; the doorkeeper is servant. On the other hand, the doorkeeper also accepts bribes. And yet--Kafka's parables are anything but simple--he says, "I take this only to keep you from feeling that you have left something undone" (214). is he committing an unlawful act or not? When he gives the supplicant a stool, when he answers his questions, and finally when he announces that he will shut the door, is he acting under orders or of his own volition? These are open questions that Kafka chooses not to answer.

The same ambiguity surrounds the actions of the man from the country. His supreme goal in life is clearly to give himself over to the will of the Law, and yet he pursues this goal by making a series of free choices: he leaves home; he accepts the doorkeeper's stool; he interrogates the doorkeeper's fleas; he grows old before the gate. And in the end, the man from the country chooses not to be a gate crasher.

Mirrors both reflect and reverse. In like manner, the Law simultaneously makes of the doorkeeper and the man from the country doppelgangers and opposites (the doorkeeper appears to be immortal; the man from the country withers dismally with age and dies). This double function of Law is hidden from The Trial's uncomprehending Joseph K., who in fact plays the roles of both the man from the country and the doorkeeper. Like the man from the country, K. seeks admittance to the Law. But like the doorkeeper, he unwittingly denies himself admittance by stubbornly protesting his innocence. Interestingly, the twofold relationship between human law and the Law in The Trial parallels the relationship between the man from the country and the doorkeeper. As the mystical or metaphysical doppelganger of human law, the Law is also its opposite. Only by admitting his guilt can Joseph K. be "saved" by the Law. This is the novel's central irony.

[The Explicator, Fall 2002 v61 i1 p39(2): Kafka's The Trial. (Critical Essay) Steven Carter. Full Text: COPYRIGHT 2002 Heldref Publications]

This will be a fun unit. Enjoy the discussion.