GOTTA READ KAFKA: NINE REASONS WHY KAFKA IS CRUCIAL FOR THE STUDY OF LAW

• Date: 10 December 2003
• Pages: 89-117
• DOI: https://doi.org/10.1016/S1059-4337(03)31004-X
• Published date: 10 December 2003
• Author: Klaus Mladek

GOTTA READ KAFKA: NINE REASONS

WHY KAFKA IS CRUCIAL FOR THE

STUDY OF LAW

Klaus Mladek

ABSTRACT

The figure of the “Kafkaesque” in law serves often as a stand-in for

something like “perverted justice” and ranks prominently among the legal

profession as a whole. But we should not soothe ourselves with such obvious

clich´es surrounding the “Kafkaesque,” rather we must continue to pursue

the disturbing challenge Kafka poses for the analysis of the law. It is clear

that Kafka’s texts hit a certain nerve of modern law that reacheswell beyond

these familiar punchlines. It is the task of this article to uncover some of the

reasons why Kafka strikes such a strong cord with both legal scholars and

people outside of academia alike.

1. THE PERFORMATIVE POWER OF JUDGMENT

“Judge!Kill!”(H218).JudgingforKafkaalwayscarriesthegravestconsequences.

In Kafka, the order of language passes with ease into an order of reality.Kafka time

and again explores the performative dimension of linguistic acts as he consistently

points to the profound complicity among grammar, thought and judgment. In the

footsteps of Nietzsche’s puns on gerecht (just) and ger¨acht (avenged) or tun (to

do) and T¨ater (perpetrator), Kafka repeatedly exploits and perfects the particular

Studies in Law, Politics, and Society

Studies in Law, Politics, and Society,Volume 31, 89–117

Copyright © 2004 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(03)31004-X

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90 KLAUS MLADEK

economy of the German language. The shifts and changes from urteilen (to judge)

to verurteilen (to sentence) and aburteilen (to condemn) or from Recht (the law),

Gericht(thecourt)andGerechtigkeitto richten (to judge) or hinrichten (to execute)

populate Kafka’s prose through and through. Judging, sentencing and condemning

are directly correlated to each other as the performance or speech act of passing

down a judgment can have the most devastating effects.

As Kafka’s famous letter to his father from 1919 shows, Kafka views the

authoritarian commands and judgments of his father as far more humiliating than

his actual deeds.1Consider also Kafka’s short story The Judgment (1912) where

the ailing father is suddenly revived and then in a surprising turn sentences his

son “to death by drowning”2(ST 87). The shocked son complies and jumps off a

bridge. Kafka’s stance towards the concept of judgment can be summarized with

a short passage that he wrote in November 1917. In this passage, Kafka envisions

a family counsel in a room through which a continuous flow of fellow men pass,

who witness only fractions of the whole deliberations, but then nevertheless

have to pronounce judgments. Kafka remarks on the judgments they are able to

pass down: “The human judgment about human actions is true and void, that

is at first true and then void.[...] True is the judgment about the word, void the

judgment in itself. Would they have wanted to judge conclusively and truthfully,

they would have become part of the family counsel and thus again unable to

judge. Only the party can truly judge, but as a party it cannot judge. Therefore

there is no possibility of judgment in the world, but only its shimmer” (H 64).

Either one is indifferent and too distant to judge competently or one takes part

of the counsel and hence loses his impartiality. The dilemma of uninformed

distance vs. competent partiality remains irreconcilable. Partial justice confronts

impartial injustice, every “fellow man” (“Mitmensch”) must therefore leave

the room without pronouncing a judgment or become part of indeterminable

deliberations.

Can there even be such as thing as a final decision? Is Kafka’s insistent

challenge for the authority of all judgments. The final decision is always a “mad”

concept for Kafka, it would resemble the impossible closure of the text or the end

of the semiotic chain; to enter the room is to reopen the case, to engage in de-

liberations and thus lose the ability to judge “objectively.” Kafka, as this example

demonstrates, is more interested in the minute process, the spatial configuration

and the situational contexts of judging than in a general theory of judgment.

The gestures of declamation, the mimics of pronouncement, the distance of the

judge to the accused or the sudden change in the perception of the power relation

are consistently much more important for Kafka than deliberate argumentation

or the rational weighing of facts. Kafka invites the legal scholar to analyze the

efficacy of the situational, performative dimension for a legal theory of judgment.