A Note on Franz Kafka’s Concept of Law

Sociology of Law, Lund University, Lund, Sweden



The focus of this chapter is on Franz Kafka’s office writings and the images of law and legality in his fiction. Notwithstanding the fact that Kafka lived during early modernity (1883–1924), his writings highlight the role of uncertainty, insecurity, transience and the unknowable. His contemporaries included Hans Kelsen, who during the same period was elaborating the foundations for his Reine Rechtslehre, which is amongst the rationalistic modern theories of the law (Kelsen, Reine Rechtslehre: Einleitung in die Rechtswissenschaftliche Prohlematik. Leipzig, Vienna: Franz Deuticke, 1934). By contrast, Kafka’s concept of law was sensitised to those aspects of the modern project, which were marginalised in the discourse of modernity. In Kafka’s descriptions of events, efforts to employ rational means to control human conduct are continually undermined by a sense of uncertainty, which is lurking just under the surface of everyday life threatening to disrupt the order of things. Expressed differently, rational organization is constantly subverted by the unpredictability of human conduct. The sense of uncertainty and unpredictability is caused by the resilience of the lifeworld in the face of rational attempts at regulating the everyday life .

This chapter is based on ‘In Search of Heimat: A Note on Franz Kafka’s Concept of Law’. In: (2010) Law and Literature 23(3): 463–490.

Much of Kafka’s greatness as an analyst of modern life—of the fusion of bureaucracy and technology as its governing principle—is owed to his office job. (Corngold et al. 2009, p. 9)

When reading Franz Kafka’s novels, short stories and parables, notes Koelb (1989, p. 1), one cannot help wondering: ‘Whatever made him think of that?’ The answer to this question involves, according to Koelb (1989, p. 1), ‘an investigation into rhetoric,’ i.e. into Kafka’s attempt to ‘understand a particular discourse as fully as possible as if one were certain that all its elements were saturated with meaning’. This chapter 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, for example, were 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’ (Koelb 1989, p. 65)—often its opposite—had he not been leading a dual life,1 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 (cf. Gross 2003). In Kafka’s fiction these two separate worlds merge to uncover the inner contradictions of modernity. In The Trial, the priest whom Joseph K. encounters in the cathedral tells him that ‘The right perception of any matter and a misunderstanding of the same matter do not wholly exclude each other’ (Kafka 1978, pp. 238–239). I will argue in the following pages that conflating the ‘right’ perception of a matter and the reverse of its everyday logic, the hallmark of Kafka’s ‘rhetoric’, needs to be explored in the discursive context of his work as a lawyer. The legal aspects of Kafka’s work, admittedly, do not explain his ‘linguistic imagination’ (Corngold 1970, p. 106, cited in Koelb 1989, p. 1) but instead 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 which emphasise the theological, psychoanalytical, ontological, historical, metaphysical and existential interpretations of his fiction at the expense of exploring the role of law in his narratives (cf. Sontag 1966; Litowitz 2002, pp. 113–114). It might indeed be true, as noted by Camus (2004, p. 599), 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’, or private law when searching for a ‘treatment’.2 Is his 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 organisation, notions left unexplored by his contemporaries and by later legal scholars?

This chapter is divided into seven sections. It starts by briefly introducing the notion of Heimat before moving on to sketch the contours of the existing debate on Kafka’s literary work. Next, it argues that his office writings, training and daily work as a lawyer, as well as his career as a bureaucrat, have significance for his fiction. It 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 in The Castle, known only as ‘K.’, is subjected to an ethical form of judgement that lies beyond the scope and jurisdiction of positive law. This ethical form of judgement, which is regarded ordinarily as the sphere of justice, delivers in Kafka’s world what appears as an incomprehensible form of injustice. Shifting the focus of the discussion to The Trial, the chapter shows that Kafka’s law is not only dissimilar to positive law, but also defies categorisation as religious law, natural law or customary law. The chapter 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 rationalisation of modern society. Second, his office writings illustrate that the images of law portrayed in his fiction, which are regarded as his ‘ambivalence about the law’ (Litowitz 2002, p. 106), are based on his experience of working with it as an insider and an outsider at the same time, which allowed him to observe contradictions intrinsic to the internal and external operations thereof. Third, Kafka describes the role of ‘non-rational’3 elements in the formation of modern law and legal institutions. This, however, needs to be studied in the context of his overall writing as a search for Heimat, for the peaceful and harmonious hometown or community to which one can belong and with which one can identify oneself.

1 Heimat

German discourse on Heimat at the turn of the nineteenth century had a romantic undertone lamenting the loss of the idyllic ‘organic’ community brought about by the rise of modern ‘mechanical society’.4 Ferdinand Tönnies (1855–1936) described modernity as the passage from a form of society dominated by Gemeinschaft (community) to one dominated by Gesellschaft (association), i.e. from a social order based on spontaneous and tacit common understandings, close emotional ties, sameness and a strong sense of belonging to a place, to one based on impersonal bonds intrinsic to modern, industrialised urban life (Tönnies 1955). It is also a transformation from a form of social organisation based on interpersonal trust and unofficial sanctions to one based on formal contract and official sanctions. The modern individual, who in the course of this passage remains dependent on both the community and the association, inevitably becomes caught up in the tension between the forces of Gemeinschaft and Gesellschaft. The consequences of this tension for the individual are depicted in many of Kafka’s works. The dilemma of the modern individual in respect to Gemeinschaft is presented against the rural backdrop of The Castle, where K. is neither welcomed nor needed by the village community to which he hopes to belong, and the alienating effects of the impersonal relations of Gesellschaft are portrayed in the urban setting of The Trial, where Joseph K. is virtually an exile in his hometown.

In his short piece ‘Homecoming’ (also translated as ‘I Have Returned’), Kafka sheds Heimat’s artificially romantic and idyllic attributes by conflating the everyday sense of community and belonging with its reverse:

I have returned, I have crossed the front yard and I look round me. It is my father’s old farmstead… Do you feel you belong, do you feel at home? Yes, it is my father’s house, but each object stands cold beside the next, as if each was preoccupied with its own affairs, which I have partly forgotten, partly never known… And I dare not knock at the kitchen door, I only listen from a distance… And since I am listening from a distance, I can catch nothing; all I hear, or perhaps just imagine I hear, is the faint chiming of a clock that floats across to me from my childhood. (Kafka 1979)

Like Gemeinschaft, Heimat is a place of taken-for-granted relations, assumptions, worldviews, intuitively shared values and sentiments—it is not a place for conscious critical reflection, and only outsiders possess the external vantage point required for viewing it critically from a distance. In Kafka’s world, Heimat is described from without, from the standpoint of the outsider, as an estranged space and an alienating experience, and yet the search for its harmony, security and warmth continues in his fiction. This continued search for Heimat may imply the impossibility of redemption, but it may also denote the inescapable dilemma of modern man who, on the one hand, values his personal autonomy and, on the other, needs the security, support and the sense of belonging that only Gemeinschaft can provide. Retaining one’s autonomy as an individual is in conflict with the need to enjoy the ‘warm circle’ of the community, for membership of the community may only be gained at the expense of compromising one’s autonomy (cf. Bauman 2001). The search for Heimat continues also because Gemeinschaft, or the community, is the paradise lost of modernity, a place not available to us but ‘which we would dearly wish to inhabit and which we hope to repossess’ (Bauman 2001, p. 3).

2 Chewing Sawdust

Many attempts have been made to examine Kafka’s legal background and the role of law in his fiction (cf. Umphrey and Sarat 2007; Litowitz 2002; Ziolkowski 2003; Dargo 2006–2007; Glen 2007; Heidsieck 1994; Minkkinen 1994; Robinson 1982). These attempts remain, nevertheless, relatively few in number compared to the vast collection of literature devoted to the study of his life and works, and they are somewhat marginal to legal scholarship (for biographies of Kafka see Brod 1995; Wagenbach 2003; Murray 2004; Robertson 2004). Mainstream studies of Kafka’s works normally present his fiction as an engagement with absurdity, a critique of bureaucracy or a search for redemption, failing to account for the images of law and legality which constitute an important part of ‘the horizon of meaning’ in his fiction.5 Many of his descriptions of the legal proceedings in The Trial 6—metaphysical, absurd, bewildering and ‘Kafkaesque’ as they might appear—are, in fact, based on accurate and informed descriptions of German and Austrian criminal proceedings of the time (Corngold et al. 2009, p. 230; also see Robinson 1982). The significance of law in his fiction is also neglected within legal scholarship, for as Posner (1986) pointed out in some of his earlier writings on law and literature, most lawyers do not consider writings about law in the form of fiction of any relevance to the understanding or the practice thereof.7 Regardless of the concerns of mainstream studies of Kafka with redemption and absurdity, and what lawyers such as Judge Posner might think relevant to law and legal practice, the fact remains that Kafka was an insurance lawyer who, besides being involved in litigation, was also ‘keenly aware of the legal debates of his day’ (Ziolkowski 2003, p. 224).

After receiving his law degree in 1906, Kafka worked for 2 years at the Italian insurance firm Assicurazioni Generali, before joining the Prague-based Workmen’s Accident Insurance Institute for the Kingdom of Bohemia, a quasi-governmental agency that managed the local administration of the Austrian Empire’s compensation system. Although because of his Jewish background he was promoted slowly, he eventually did rise ‘to a high-ranking position (Obersekretär)’ and became ‘a significant innovator of modern social and legal reform in the Crown Land of Bohemia’ (Corngold et al. 2009, p. ix). The Institute was responsible for determining and collecting insurance premiums covering work-related injuries for all types of industrial settings. Kafka remained at the Institute until his resignation in 1922 on the grounds of ill-health, 2 years before his death in the Kierling sanatorium near Vienna.

Over the years Kafka served as an insurance lawyer, he produced a large number of office documents ranging from reports and briefs to speeches and newspaper essays. Eighteen of these documents have been selected, translated into English, edited by Stanley Corngold, Jack Greenberg and Benno Wagner, equipped with commentaries which contextualise and analyse each document separately, and published in a single volume. This collection reveals the extent to which Kafka used material and ideas from his office work to develop his fiction, and how his legal writings were influenced by his general literary style. Greenberg (2009) provides several examples of how Kafka used material from his office writing in his fiction:

In Kafka’s professional writing about insuring quarries, we find what may be a one-to-one correspondence with the location of the ultimate scene in The Trial… The 1914 report on quarry safety described a quarry in which there was “a loose stone block 1m3” and accompanied the text with a photograph. That year Kafka began writing The Trial, which ends in a chilling execution scene in a quarry. (Greenberg 2009, p. 357)

Not as congruent as the quarry of the insurance report and the quarry of the execution site, but suggestive nevertheless, is the relationship between wood planing machines insured by Kafka’s Institute and the torture machine of In the Penal Colony. Planing machines caused many injuries that required workmen’s compensation. In a report directed at technical experts, mechanical engineers and business owners, Kafka wrote of finger joints and entire fingers cut off by square shaft planing machines, presenting a lengthy argument, illustrated with drawings that advocated replacing them with much safer cylindrical-shaft planing machines. (Greenberg 2009, p. 358)

Official documents often carry more than traces of Kafka’s style as a fiction writer—we hear in them what his office writing editors aptly call ‘Kafkaesque echoes’ (Corngold et al. 2009, p. xii). For example, his brief on ‘Risk Classification and Accident Prevention in Wartime (1915)’ ends with the following reference to a German case:

  • A prisoner of war was employed as an operator of a large overhead crane. One day, for no good reason, he set the crane’s hoist motor at full power. When the hoist cable broke, the pulley block shot up into the air and flew into the work place behind, without, as it happened, hitting anyone.

  • There was no doubt that the prisoner of war’s principal intention had been to disable the crane and to disrupt the flow of work. The German authorities recommended that any firm employing prisoners of war make certain that these are not called upon to perform tasks on which the welfare of the operation depends. (Kafka 2009, pp. 332–333)

This ending not only reminds us of Kafka’s story The Penal Colony, but also highlights in Kafka’s special style the precariousness and vulnerability of the normality of daily life.

A number of people, including Kafka himself and Max Brod his friend, biographer and editor of his works, have been responsible for drawing the attention of critics away from Kafka’s legal work. Brod writes, for example, that ‘Franz had always looked on his legal profession solely as a makeshift, and dreamed of other activities’ (Brod 1995, p. 7). Kafka often complained in his diaries and letters that his day job was unbearable and conflicted with his only desire and calling, which was literature (Kafka 1973, p. 279 also see Gross 2003, p. 82). In a letter to his father, he belittled his legal career by writing that he studied law only by default after he failed to find something which was compatible with his ‘self-absorption’ and ‘vanity’ (Kafka 2008, pp. 62–63). In the same letter he famously described his experience of studying law in terms of chewing sawdust: ‘For the few months before the final university exam, my mind was fed with intellectual sawdust which had been chewed by a thousand mouths before’ (Kafka 2008, p. 63). This does not mean that Kafka was not exposed to ideas which were emerging out of the jurisprudence of his day during his studies at the German-speaking Ferdinand Karl University of Prague. Besides taking courses in Roman law, Austrian civil law, constitutional law, economics and trade law and administrative law, Kafka took ‘four courses with Hans Gross, who was a professor in Prague from 1902–1905 – three in criminal law and one on the history of philosophy of law’ (Ziolkowski 2003, p. 225). It is therefore likely that Kafka was familiar with Gross’s idea that ‘it is not the crime but the criminal who is the proper object of punishment’ (Ziolkowski 2003, p. 225), an idea based on criminal psychology which, arguably, later shaped the fate of Joseph K. in The Trial.8

The same idea can be discerned in In the Penal Colony, where a man, who has been condemned to death for falling asleep on duty, is to be executed by ‘the remarkable piece apparatus,’ in reality a deadly and barbarous torture instrument inspired, as noted above, by the dangerous wood-planing machines insured by Kafka’s Institute (Greenberg 2009, p. 358). The condemned man has had no opportunity to defend himself and has no idea about the sentence he is about to receive. The officer in charge of the torture machine, who is incidentally also the judge, explains to ‘the explorer’, who is a stranger on a visit to the penal colony, that ‘There would be no point in telling him. He’ll learn it corporally on his person’ (Kafka 1977, p. 174). The officer nostalgically recalls the days under the Old Commandant when executions brought the community together: ‘[a] whole day before the ceremony the valley was packed with people; they all came to look on’ (Kafka 1977, p. 183) and to celebrate justice being done. To the officer’s regret, the New Commandant is influenced by the women around him, and thus it does not favour this method of punishment, which is why no one attends the executions any longer. Although the New Commandant is powerful enough to stop this brutal practice, he nonetheless does not dare to bring about its demise. In this story, we see how Kafka employs his linguistic imagination to transform the wood-planing machine, which mutilated the fingers of workers who operated them, into a torture instrument. At the same time, he links the idea of a criminal as the object of punishment to a romantic, albeit through his ‘rhetoric’ perverted, sense of justice and the community, lost as the result of the passage from the Old to the New form of social order—a New order which disapproves of the violence of the Old system, but dares not end it. The perversion of justice in the colony mirrors the working conditions of workers operating the planing machines, who, like the condemned man, are kept unaware of their sentence and the punishment they are to receive. It also suggests the inability of the Workmen’s Accident Insurance Institute, presented as the New order in the colony, to put an end to the old practices which might put workers at risk of serious injury. Admittedly, this is not the only interpretation of The Penal Colony, but nevertheless it is one which gains credibility once we place Kafka’s fiction into the context of his office writing and his legal background.

To explore the relationship between Kafka’s concept of law, his overall concern with the human condition and modernity’s search for the community lost, I will focus in the next section on one of his major novels, The Castle, which is often overlooked by those who are interested in his legal ideas in favour of The Trial. I will also make use of The Trial in Sect. 4, where I explore Kafka’s notion of law as a non-state form of legality.

3 The Castle

Kafka’s novel The Castle starts with the late-night arrival of the land surveyor, K., to a village blanketed by snow (Kafka 1998, p. 1).9 On his arrival, K. takes up refuge in a local inn for the night, where he is rudely awakened by the son of a castellan who challenges K.’s right to stay the night in what is the property of the castle. When K. explains that he is the land surveyor summoned by the castle,10 the castellan makes a phone call to the castle to confirm K.’s claim. The castle official first replies that no such person has been summoned, but he calls back a minute later to confirm K.’s story. K. is thus allowed to stay. The next morning, K. leaves the inn, making his way through the snowy streets towards the castle and hoping to get there to clarify the confusion surrounding his visit, but more importantly to assume the duties for which he has been summoned. The castle appears sharply outlined in clear daylight as an untidy and miserable heap of low-lying village houses on the hill. With his eyes fixed on the castle—for nothing else matters to K. but reaching it—he sets off. However, his journey proves to be long:

The street he had taken, the main street in the village, did not lead to the castle hill, it only went close by, then veered off as if on purpose, and though it did not lead any farther from the castle, it didn’t get any closer either. K. kept expecting the street to turn at last toward the castle, and it was only in this expectation that he kept going…. (Corngold 2009, p. 10)

Exhausted by his futile attempt to reach the castle, he takes a sleigh back to the inn. At this point a messenger appears with a letter from a castle official by the name of Klamm,11 notifying K. that he needs to report to the village mayor. The mayor informs K. that he has been summoned by the castle as a result of confused communications between castle authorities; otherwise, they do not need a land surveyor.

K. is neither granted permission to enter the castle nor given direct access to its officials. The castle, nonetheless, acknowledges K.’s presence, apparently facilitates his stay by finding him a position as the janitor in the local school and assigns Barnabas, a messenger from the castle, as the go-between. This proves hardly satisfactory, for K. realises before long that Barnabas does not receive the letters from Klamm but from a clerk; he goes to ‘the offices’, but it is not certain if these are in the castle. Moreover, although he is at the service of the castle, he is uncertain of his messenger status and not sure if the high official, who is referred to as Klamm, is in fact Klamm or only someone who looks like Klamm.

The villagers are alarmed by K.’s defiant attitude towards the rules and conventions that create their community and govern their relationship with the castle, and they view K. with suspicion. He violates the local mores by questioning normal procedures and by endlessly seeking to contact Klamm. For the villagers, especially for the landlady of the inn, who had been briefly Klamm’s mistress, such an important official cannot be approached by a stranger such as K. In a meeting which takes place in the presence of Momus,12 one of Klamm’s village secretaries, who wishes to take a deposition in order to complete the gap in the official records of the castle, the landlady tells K. that ‘Klamm will never speak to anyone he doesn’t want to speak to, no matter how strenuously a certain individual exerts himself and no matter how insufferably he pushes himself to the fore…’ (The Castle, p. 109). However, there is still slight hope for K. Admittedly, the fact that Klamm does not wish to speak to K. is sufficient for continuing to deny K. permission even to come face to face with Klamm, but K. may establish some form of official connection with Klamm through his secretary’s deposition. She tells K.:

In your case the only path leading to Klamm passes through the secretary’s depositions. But I don’t wish to exaggerate, perhaps this path doesn’t lead to Klamm, perhaps it ends long before it reaches him; that decision is made by the secretary at his own discretion. Anyhow, for you this is the only path that does at least lead in Klamm’s direction. (The Castle, p. 112)

K. employs all the means at his disposal to contact Klamm, in order to obtain an audience with him, hoping that Klamm can unlock the doors of the castle for him. All his efforts fail. Towards the end of the novel, K. does come across a castle official by the name of Bürgel at the Herrenhof Inn, in the early hours of the morning while waiting to see one of Klamm’s village secretaries. Bürgel tells him many important things about the inner workings of the world of the castle, about the strange opportunities that can arise and which are almost never utilised, but K. falls asleep during this meeting. Kafka never finished The Castle and the manuscript ends here, but he told Max Brod that he had envisaged the ending as:

The ostensible land surveyor was to find partial satisfaction at last. He was not to relax in his struggle, but was to die worn out by it. Round his deathbed the villagers were to assemble, and from the castle itself the word was to come that though K.’s legal claim to live in the village was not valid, yet, taking certain auxiliary circumstances into account, he was permitted to live and work there.13

The Castle is heavily indebted to The Grandmother, a realist novel by Božena Němcová, a female Czech writer, who lived between 1820 and 1862. Němcová’s tale is about the people of a Czech village who have no access to their overlord in the castle, where German is spoken. Kafka must have read this novel at school where, according to Brod (1995, p. 251), it was used ‘as the basis for instruction in the Czech language’. Although Kafka has borrowed some of the main themes and characters of The Castle from Němcová’s village tale, his story unfolds differently from hers. In Němcová’s version the protagonist, ‘the grandmother’, succeeds against all odds to make contact with the duchess who rules the village, thus obtaining justice. In Kafka’s version, not only justice but also the authority of the village remain out of reach of K., who is, incidentally, a character born out of a report on ‘Fixed Rate Insurance Premiums for Small Farms Using Machinery (1909)’ (Corngold 2009, pp. 74–79). This report deals, among other things, with land surveying and invalid surveys, as well as unsuccessful attempts made by the Institute to mediate the world of farmers (the village) and the ministry in Vienna (the castle).