Law & Literature, Vol. 22, No. 2, Fall 2010
29 Pages Posted: 23 Mar 2010
Date Written: 2010
Are Franz Kafka’s representations of law and legality figments of his imagination, or do they go beyond his obsessive probing of his neurosis to reflect issues that also engaged the social and legal theorists of his time? Does Kafka’s conception of law offer anything new in respect to law, justice, and bureaucracy that was not explored by his contemporaries or by later legal scholars? This paper uses Kafka’s office writings 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. The paper 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 meanings they suggest, but also as exemplifications of a particular concept of law and legality which operates paradoxically as an integral part of the human condition under modernity. To explore this point, the paper places Kafka’s conception of law in the context of his overall writing, which the paper presents as a series of representations of the modern search for a lost Heimat. Kafka’s writing, the paper argues, takes us beyond the instrumental understanding of law advanced by various schools of legal positivism and allows us to grasp law as a form of experience.
This essay first sketches the contours of the existing debate on Kafka’s literary work. Next, it argues that Kafka’s office writings, his training and daily work as a lawyer, and his career as a bureaucrat have significance for his fiction. The essay then explores the ways in which Kafka’s legal work shaped his ideas about law and legality, focusing on his unfinished novel, The Castle. Like Josef K. in The Trial, the protagonist of The Castle, known only as “K.,” is subjected to an ethical form of judgment that lies beyond the scope and jurisdiction of positive law. This ethical form of judgment, which is ordinarily regarded as the sphere of justice, delivers what in Kafka’s world appears to be an incomprehensible form of injustice. Shifting its focus to The Trial, the paper goes on to show that Kafka’s law is not only dissimilar to positive law, but also defies categorization as religious law, natural law, or customary law. The paper ends by making three interrelated points: First, Kafka’s notion of law takes us beyond a Weberian concern with the rise of bureaucracy and the rationalization of modern society. Second, Kafka’s office writings illustrate that the images of law in his fiction, which critics regard as expressing his “ambivalence about the law,” are based on his experience of working with the law as an insider and an outsider at the same time. This dual perspective allowed Kafka to observe the contradictions intrinsic to the internal and external operations of law. Third, Kafka’s work reveals the role of “non-rational” elements in the formation of modern law and legal institutions. This occurs, however, in the context of Kafka’s numerous representations of the search for Heimat, the peaceful and harmonious community to which the modern individual would like to belong and with which he or she longs to identify.
Keywords: Kafka, Heimat, Gemeinschaft, community, Gesellschaft, rhetoric, rationality, literature, state law, living law, legality, justice, authority, bureaucracy, positivism, socio-legal
JEL Classification: K1, K3, K4
Suggested Citation: Suggested Citation
Banakar, Reza, In Search of Heimat: A Note on Franz Kafka's Concept of Law (2010). Law & Literature, Vol. 22, No. 2, Fall 2010; U. of Westminster School of Law Research Paper No. 10-15. Available at SSRN: https://ssrn.com/abstract=1574870 or http://dx.doi.org/10.2139/ssrn.1574870
By Reza Banakar