In Search of Heimat: A Note on Franz Kafka’s Concept of Law
2010; Routledge; Volume: 22; Issue: 3 Linguagem: Inglês
10.1525/lal.2010.22.3.463
ISSN1541-2601
Autores Tópico(s)Kierkegaardian Philosophy and Influence
ResumoAbstractAre 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 reexamining the images of law, bureaucracy, hierarchy, and authority in his fiction—images that 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 that 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.Keywords: KafkaHeimatGemeinschaftcommunityGesellschaftrhetoricrationalityliteraturestate lawliving lawlegalityjusticeauthoritybureaucracypositivismsociolegal Notes* I am indebted to Richard Weisberg from whose comments and suggestions this paper has benefited. I am also grateful to George Dargo for his helpful comments on the final draft of this paper.1. Stanley Corngold et al., eds., Franz Kafka: The Office Writings (Princeton: Princeton University Press, 2009), at ix [Google Scholar].2. Clayton Koelb, Kafka’s Rhetoric: The Passion of Reading (Ithaca: Cornell University Press, 1989), 1 [Google Scholar].3. Id.4. Id., at 65.5. Kafka probes the duality of his identity and of his daily experiences in several places. In “My Neighbour,” for example, he reveals the tension between his two types of work and writing, and in “A Crossbreed,” he examines his split personality: half kitten, half lamb. See Kafka, Description of a Struggle and other Stories (London: Penguin, 1979) [Google Scholar].6. Ruth V. Gross has developed this point in “Kafka’s Short Fiction,” in The Cambridge Companion to Kafka, Julian Preece ed. (Cambridge: Cambridge University Press, 2003) [Google Scholar].7. Franz Kafka, The Trial, Willa and Edwin Muir, trans. (London: Penguin, 1978), 238–39 [Google Scholar].8. Stanley Corngold, “Kafka’s Die Verwandlung: Metamorphosis of the Metaphor,” 3 Mosaic 106 (Summer 1970) [Google Scholar], cited in Koelb, supra note 2.9. For overviews of various interpretations of the works of Kafka, see Susan Sontag, Against Interpretation and other Essays (New York: Doubleday, 1966), 8 [Google Scholar]; and Douglas E. 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For a discussion of the relationship between Heimat and Kafka’s novel The Castle, see Elizabeth Boa, “The Castle,” in Preece, supra note 6 at 61–79.15. Ferdinand Tönnies, Community and Association (Gemeinschaft und Gesellschaft) (London: Routledge and Kegan Paul, 1955) [Google Scholar].16. Franz Kafka, “Homecoming,” in Description of a Struggle and Other Stories, Willa and Edwin Muir, trans. (London: Penguin, 1979), at 140 [Google Scholar].17. Zygmunt Bauman, Community: Seeking Safety in an Insecure World (Cambridge: Polity, 2001) [Google Scholar].18. Id. at 3.19. See, e.g., Martha M. Umphrey et al., “The Sacred in Law: An Introduction,” in Law and the Sacred, Austin Sarat et al. eds. 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The process of interpretation is, to borrow from Hans-Georg Gadamer ( Truth and Method (London: Continum, 2006) [Google Scholar]), the reader’s dialogue with the text, which brings the text’s horizon of meaning face to face with the reader’s preconceptions of the world in general and of the text in particular. This also means that the meaning of a text is never fixed, never complete; a text is always open to reinterpretation, and its meaning is continuously subject to negotiation and constantly evolving.22. The Trial is a mistranslation of the original German title Der Prozeß, which means “The Proceeding.”23. Corngold et al., supra note 1 at 230. See also Robinson, supra note 19.24. Richard Posner, “Law and Literature: A Relation Reargued,” 72 Virginia Law Review 1351, 1356–57 (1986) [Google Scholar]. 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His choice of the name Klamm for K.’s official contact with the Castle is, therefore, most probably not accidental, particularly because Klamm turns out to be a shadowy figure who regularly visits the village and because the letter brought by the messenger identifies Klamm as K.’s point of contact with the Castle.45. The choice of the name Momus shows Kafka’s sense of humor. Momus is the Greek god of mirth, but whenever he speaks in The Castle, everyone becomes serious. See Robertson, supra note 20 at 40.46. Kafka, supra note 41 at 109.47. Id., at 112.48. Quoted in Willa and Edwin Muir’s translation of The Castle (London: Vintage Books, 2005), 7 [Google Scholar].49. Brod, supra note 20 at 251.50. Corngold et al., supra note 1 at 74–79.51. Weisberg, supra note 24 at 135.52. See Koelb, supra note 2.53. Max Weber, Wirtschaft und Gesellschaft: Grundriss der verstehenden Soziologie (Mohr: Tübingen, 1922) [Google Scholar].54. 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