Cover

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Title Page, Copyright, Epigraph

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pp. i-vi

Table of Contents

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pp. vii-x

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Introduction: An Outline of the Project

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pp. 1-18

The first half of this book is expository. The second half is interpretive.

The first half attempts to identify, categorize, and summarize all of Kafka’s fiction about law and legal systems. This includes all of his published and unpublished works that deal squarely with the law as a central motif, as well those stories that might be described as law-related for dealing with subjects that indirectly touch on law, such as matters that are political, administrative, and quasi-judicial. I will refer to this corpus of texts...

Part I: Exegesis

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1. Kafka’s Life in the Law

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pp. 21-37

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...

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2. Isolating the Relevant Texts

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pp. 38-56

This chapter seeks to identify the particular works where Kafka dealt with the topic of law and legal systems, so that we can isolate these key texts for our discussion. This may sound like a straight-forward task, but it isn’t. Rather, it requires that we make a series of interpretive decisions about which texts to include and which to exclude.

For one thing, there is a preliminary question about how to define the topic of “law” so that we can identify a story as dealing with “law.” For example, should we include Kafka’s stories that...

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3. Narrative Summaries

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pp. 57-67

We have isolated Kafka’s key works dealing with modern law, which I have labeled as “Kafka’s legal fiction.” It is now time to summarize the narrative elements of these stories so that we are all on the same page, so to speak. These following summaries are deliberately succinct, as these works will be discussed in more detail in Part II of this book.1

“The New Advocate”

“The New Advocate” is a two-paragraph parable published during Kafka’s lifetime. Kafka obviously felt strongly about it, since he...

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4. Kafka’s Target—Modern Law

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pp. 68-80

Modern law, like modern science and modern medicine, is a specific manifestation of “modernity,” understood as both a historical epoch and an intellectual orientation. In the broadest sense, modernity can be understood as a change in ideas and social practices brought about by rapid advances in industrialization and science from the mid-seventeenth century to the mid-twentieth century. The scientific successes of Galileo, Newton, and Leibniz were paralleled by a commitment among philosophers to apply the same...

Part II: Interpretation

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5. Modern Law Has Come Unmoored from Its Normative Grounding

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pp. 83-100

None of Kafka’s protagonists make it to a hearing in front of a judge. Their hope of admission to the law is perpetually denied. In the parable “Before the Law,” a man waits for admission to the law until his death, at which point he imagines that the law has radiance, but the reader has no way of knowing if the radiance is real or merely a projection of his wish for some kind of divine or transcendent grounding for the law. In “An Imperial Message” (a fragment from “The Great Wall of China”), a man imagines that...

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6. Modern Law Is Inherently Dystopian

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pp. 101-112

Kafka’s legal fiction adopts a perspective sometimes referred to as third person limited, meaning that the reader can understand the thoughts of the protagonist but not the thoughts of others. This heightens the sense of estrangement because we are within the mind of the central figure as his search for law comes up empty. He finds no justice, no day in court, no chance to encounter his accusers—in other words, no legal system worthy of the name. We follow his search for justice, and we feel his disappointments...

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7. Modern Law Inverts Punishment So That It Predates the Crime

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pp. 113-126

The legal systems depicted by Kafka have done away with the presumption of innocence. In the story “In the Penal Colony,” the officer who administers the penalty and considers himself judge, jury, and executioner of the colony, tells the foreign explorer, “My guiding principle is this: Guilt is never to be doubted.”1 Similarly, in The Trial, Josef K. is informed that the court is attracted to guilt even if the person has not done anything demonstrably wrong. And in “Knock on the Manor Gate,” the protagonist is imprisoned...

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8. Modern Law Fails to Accept the Ambiguity of Texts

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pp. 127-145

Kafka was trained in the Austrian Civil Code of 1811, which supplied rules for the interpretation of legal texts. Section 6 of the code said that courts should not impose any interpretation other than the plain meaning of the words; if any confusion still existed, a court must look to the intention of the legislature, then to similar cases, and then to the natural principles of right.1 Notice that the interpretive directive is framed as a prohibition: thou shalt not interpret the text in any other way. The idea here is to set sufficient limits...

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9. Modern Law Is Comic and Carnivalesque

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pp. 146-158

Humor can be found everywhere in Kafka’s work, once the reader is trained to look for it. And it is an important and often overlooked component of his critique of modernity and modern law. It is widely known that when Kafka read the first chapter of The Trial to his friends, both Kafka and his audience were laughing. They were listening to a story about a man arbitrarily arrested, condemned, and then executed without getting a chance to appear before a judge—and they were laughing. This would hardly seem...

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Conclusion: Was Kafka Correct about Modern Law?

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pp. 159-168

The central claim of this book is that Kafka is an important thinker with a unique vision of modern law as a social institution. This claim is somewhat broader than what is typically found in the existing legal scholarship. As I pointed out in the introduction, Kafka’s legal fiction has often been used to illuminate a particular aspect of modern law (say, the law of punishment), but he was not considered to have anything to say globally or at a metalevel about modern law as an institution. If I am correct, Kafka is not merely a...

Notes

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pp. 169-186

Index

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pp. 187-196

Back Cover

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