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Volume 12, Number 1 (1988) reprinted by permission Legal Studies Forum Franz Kafka's Trial as Symbol in Judicial Opinions* SCOTT FINET Cleveland-Marshall College of Law** "Someone must have traduced Joseph K.,With this sentence Franz Kafka opens The Trial,2 a fictional account of an individual's unfortunate encounter with an irrational legal system. Although K. believes the legal system to be fair, predictable and rational,3 his encounters with that system show the system to be arbitrary and unfathomable. This article will show how judges make references to The Trial in published decisions as a symbol of their commitment to the shared value of rational choice. Their references to The Trial seem to be an effort to resolve, on a symbolic level, the contradictions between the ideology of an orderly, rational legal decision making process and the sometimes incongruent workings of that process. This is not to say that the decision making process is or is not always predictable and based on rational choice, but that judicial decision makers, in an effort to legitimize themselves and the process, attempt to convince those affected by their decisions that the process is predictable and based on the shared value of rational choice. divided into three main branches:4 traditional criticism of literary works that deal with lawyers, courts and legal doctrine; the study of values and human rights from a literary perspective;5 and the interpretation of legal language through the techniques of contemporary literary criticism.6 The focus of this article can be most accurately described by the second category, works that concentrate on values and human rights. It is not, in any sense, a traditional criticism of The Trial. This work is not intended to be a contribution to the growing effort to interpret written legal communication using the tools of contemporary literary criticism such as hermeneutics or deconstruction.7 While these tools may or may not, at some level of abstraction, be relevant to this article, a somewhat lower level of abstraction is intended. In contrast to the efforts to interpret legal texts using the tools of hermeneutics and deconstruction, this article follows a different line of inquiry. It examines how individual judges, who are rendering decisions, interpret a literary work and incorporate the work in their decisions to reflect their commitment to the shared value of rational choice and a rational decision making process. Nearly all of the explicit sources cited in judicial opinions are traditional legal sources, i.e. cases, statutes and secondary source materials. Occasionally, nontraditional sources are cited, including works from the field of literature. An example is Franz Kafka's Trial. Contemporary judges can see themselves, and the process in which they play an integral role, mirrored in the fictional judicial proceedings of The Trial. Because it is a work of fiction, The Trial has no utility as legal precedent and is not the basis for judicial decisions. Rather, references to The Trial operate on a symbolic level. Symbols are useful devices in the process of integrating social groups. A symbol can appeal to some common value within an otherwise disparate group, helping the group to unite. The symbol acts somewhat like a catalyst. Tillich describes some types of integrating symbols: "Symbols are the main power of integrating [social groups]: a king, an event, a document in the political realm of representative symbolism, an epic work, architectural symbols, a holy figure, a holy book, a holy rite in religion."8 A nation's flag is an example of a symbol with the power to integrate groups of individuals. The Trial is a textual type of symbol, similar to the holy book symbol mentioned by Tillich. The Trial is a fictional account of an individual's arrest, trial, conviction and execution on charges that are never explained to him. The Trial has many potential meanings.9 This ambiguity of meaning has resulted in a profusion of interpretation.10 This body of criticism and interpretation is often as inconsistent and contradictory11 as the story itself. For example, two legal scholars have recently used Kafka's work (and their strongly contrasting interpretations of that work) as the focal point for a debate on the nature of human motivation.12 Interpretations of The Trial cover a spectrum from the highly abstract to the literal. Various abstract interpretations, for example, see The Trial as: a story of guilt on a metaphysical level;13 "a quasi-abstract story of man's mental and spiritual collapse ... nervous breakdown or psychotic episode";14 or a story of an innocent man plagued by an unyielding god similar to the story of Job.15 One of the more frequently occurring abstract interpretations views The Trial as a quest or search for information, knowledge or Truth. Pondrom, for example, notes that "K. in The Trial is an archetypal figure reenacting the mythic search for crucial information ..."16 about the nature of the charges against him. K. sought that information so that he could provide testimony in his own defense. Pondrom further states that Joseph K. is "a man asking a question or series of questions," and that "we perceive the essential features of K. to the extent to which we see him as a symbol of man or a certain kind of man."17 Pondrom is referring to the type of individual who seeks crucial information, knowledge or Truth.18 Judicial opinions that cite The Trial provide interpretations that are remarkably similar to the quest or search theme.19 Examples of essentially literal interpretations of The Trial can be found in Franz Kafka's Use of Law in Fiction 20 by Kirchberger and in The Law of the State in Kafka's The Trial21 by Robinson. Kirchberger calls her interpretative approach "essentially philological, based on a close examination of Kafka's texts with a view to ascertaining what his words mean in their context."22 This "mundane method ... leads to results in support of the idea that Kafka ... is concerned in his novels ... not so much with ultimate truth as with the art of writing absorbing fiction."23 According to Kirchberger The Trial depicts the process by which K. gradually becomes enmeshed in an elaborate clandestine legal organization "which employs corrupt warders, oafish inspectors and examining magistrates."24 Kirchberger calls this system the "unfamiliar jurisprudence"25 and notes that "the reader is led only by degrees into the sphere of a strange 'jurisprudence' with which the populace is largely unfamiliar."26 Another example of an essentially literal interpretation of The Trial is Robinson's The Law of the State in Kafka's The Trial.27 Robinson attempts to demonstrate how The Trial is a criticism of the law and legal community of the Prague of Kafka's time (and courts and law in general). In doing so, Robinson does not "deny or denigrate the mytho-poetic qualities of Kafka's work.28 Robinson analyses The Trial chapter by chapter and demonstrates how the legal system that K. encounters is paralleled with and parodies the Austro-Hungarian courts and legal system that Kafka knew. Among the parallels are a similarity in the criminal procedure system,29 the right to counsel,30 the absence of pretrial detention in all but the most serious cases,31 the perceived shortcomings of trial by jury,32 and widespread bribery.33 In the cases discussed below,34 judges cite The Trial to demonstrate that, unlike the illegitimate judiciary described by Kafka, they will resolve the search or quest via the process of rational choice. demonstrate their commitment to the shared belief in the utility of informed, rational, intelligent choice. The act is one of self- legitimization.35 This process of legitimization takes place within the decision making environment described by Feldman and March36 who show that decision makers often gather, organize and provide information beyond the optimal point.37 Decision makers try to show that they are committed to the value of intelligent, choice,38 and "appropriate attitudes about decision making."39 Decision makers are functioning in an environment that values intelligent choice and believes that additional information facilitates intelligent choice. Decisions that exhibit characteristics of these shared values are more likely to be considered legitimate. The citation of information is an acknowledgement of information's role in decision making and an attempt to legitimize decisions and those who make decisions.40 The thesis of Feldman and March extends to appellate judicial decision making.41 The audience for a judicial opinion is both immediate and distant. At one level, judges supply information to the individuals involved in the case to satisfy them. The individuals directly involved are the audience for this information. To outsiders, the authors of decisions supply information about their commitment to rational choice. Everyone who reads the case, as well as those immediately affected by the decision, needs to concur with the overall legitimacy of the outcome. The relationship between shared, community values and the law is important.42 Shared values originate in the larger community and are then reflected in the law in general and specifically in judicial opinions. "Something becomes a value to everyone in the community only if the community, acting as such, affirms it as such.43 Subjecting an individual to the will of the group requires the group to conclude that its needs are more important than the individual's. Sax continues by stating that, "[w]hat the content of such collective values or preferences should be, however, ... cannot be identified any more than the values of an individual."44 Nor can these values be unassailably defended. However, he concludes that, "[i]f there is to be a place for the expression of civic values, the only means available (unhappily, perhaps) is through the decision-making apparatus of the state."45 While the state may not be the only means available, it is the primary means for the expression of collective values. The judiciary is one of the state's most highly visible apparatuses for decision making. Judges realize and act on the realization that adherence to the shared value of rational decision making is necessary to legitimize the process and their role in the process. interpretation that has been written by commentators about The Trial, judicial references to The Trial are generally consistent. In the cases discussed below, judges write about individuals trapped in a bureaucratic or legal web of confusion and ambiguity. In these cases, judges put themselves in the position of providers of information or knowledge and providers of decisions based on this superior information or knowledge that is applied with the apparatus of rational decision making. They do so in order to adhere to the shared value of rational choice (even though collective choice may not necessarily be preferable to individual choice). For example, in Eisel v. Secretary of the Army, 46 the court provided the necessary information so that the plaintiff could avoid a situation similar to Joseph K.'s when he searched unsuccessfully for information about the nature of his circumstances. The court identified the proper forum for the plaintiff who sought a hearing for release from military service in order to "help prevent the Kafkaesque specter of supplicants wandering endlessly from one jurisdiction to another in search of a proper forum, only to find that it lies elsewhere," 47 and cited The Trial as a symbolic example of this type of situation. A counter example can be found in U.S. v. Notorianni.48 In this case, the court compared the defendant with "Joseph K. (in Kafka's novel The Trial)."49 The defendant, Notorianni, was confronted by a government agent in an airport. The agent stated that he was conducting a narcotics investigation and asked if he could search the defendant's luggage. The defendant agreed and narcotics were found in the luggage. The court noted that unlike Joseph K., the defendant Notorianni was fully informed about the nature of the investigation proceeding against him. In this case the court decided against the defendant. In the cases that refer to The Trial one often encounters the supplicant who seeks information and resolution to his or her quest just as Joseph K. did in The Trial. The role of the information seeker can be played by the plaintiff or the defendant. Judges cite The Trial to demonstrate that they, unlike the illegitimate court in The Trial, are committed to the shared value of rational choice and that they will provide a resolution to the supplicant's search. Their interpretations of The Trial are similar to the interpretations provided by Pondrom, 50 who sees The Trial as a quest or search for information, and Kirchberger,51 who sees The Trial as a portrayal of an illegitimate judiciary. The central theme in the decisions that cite The Trial is incomplete or insufficient information about the nature of the proceedings in which they are enmeshed. For example, in Beit v. Probate and Family Court Department, 52 the court compares an attorney who has been sanctioned by the court with Joseph K. The court cites a passage in The Trial in which K. sets out to discover what powers the court may bring to bear on him: "[C]onscious of his own rights, he asked through the The attorney, Beit, failed to appear for a scheduled trial and did not obtain a timely continuance. The judge assessed costs against Beit. On appeal the court decided the attorney had been properly sanctioned because the judge felt that, despite arguments to the contrary, the attorney had sufficient information about the consequences and nature of the proceedings with which he was faced. In general, in the cases that cite The Trial, judges sympathize with those who lack information about the nature of the crime they are charged with or the nature of the proceedings against them. After drawing analogies between Joseph K.'s predicament in The Trial and the aggrieved party in the case they are deciding judges rule in favor of the party who has been deprived of or denied important information. For example, the court in Ridge v. Police and Firefighters Retirement and Relief Board54 noted that the plaintiff had not been given adequate notice of possible adverse findings and consequences of an administrative tribunal. The court stated that this secrecy practiced by the agency was contrary to the Due Process Clause and compared the withholding of information to the situation that Joseph K. faced in The Trial.55 Situations similar to this can be found in Halloway v. Frey56 and in State v. Palamia.57 The defendant in Halloway was not properly notified of the proceedings against him. The judge said the lack of official notification of an action against him would nullify the requirement of service of process and "lead to the nightmare situation envisioned by Kafka in The Trial."58 The court in Palamia described how police detained the defendant without giving a reason for the arrest. The court compared this situation with The Trial: "We submit that it is antithetical to the principles of aIn other words, lack of notice, lack of knowledge of the nature of the proceedings one is faced with, and in a broader sense, lack of information are antithetical to the shared belief in the value of a rational decision making process. Lack of information corrupts and destroys that process. Judges consider K.'s fate in The Trial an undesirable result, a result that they do not want to repeat in the case they are deciding. They insist that the missing but necessary information be provided to produce a result that is consistent with the shared value of rational choice, a result that does not occur in The Trial. For example, in Dowd v. Calabrese,60 a civil case, the court compared a situation where a government agency refused to provide defendants with relevant information and documentation with The Trial.61 In the cases that cite The Trial judges often depict bureaucratic government agencies in an unfavorable light. Their misdeeds relate to the denial or the withholding of information and are often compared with the unyielding court in The Trial. In Creamer v. Raffely, 62 the court describes The Trial as "the archetypal encounter of the ordinary mortal with the capriciousness and irrationality of modern bureaucracies."63 The court found that a city's policy of subjecting anyone incarcerated on any offense to strip and body cavity search fits within this description. The majority decision in the case In re William L.64 affirmed the termination of parental rights based on the mother's incapacity to provide essential parental care. The dissent in the case pointed out the need for judges to consider human nature and the needs of those affected by their decisions. The dissent cited a passage from The Trial in which Kafka describes how the judiciary that K. must deal with is isolated from the populace because of an insistence on secrecy:65 " ... yet confronted with quite simple cases, or and warns the majority of the illcgitimizing consequences of ignoring shared values. By citing Kafka's example of a judicial system gone awry, the dissent symbolically endorses and demonstrates an understanding of the need for judicial decision makers to adhere to values shared with those affected by their decisions. This demonstration, whether explicit or implicit, of commitment to the shared value of rational choice is the essence of judicial citation of The Trial. court is the realm of complete knowledge, Truth with the capital letter..."67 and this realm is beyond the limits of K.'s knowledge.68 She states that The Trial stands as a symbol of man's intrinsic inability to know completely or to judge finally."69 This is unacceptable from a judicial decision maker's point of view. As the dissenting judge in In re William L.70 concluded, "We who sit as appellate judges must always guard against becoming emotionally isolated from human nature and the human consequences of our decisions."71 The use of references to The Trial demonstrates that judges realize that judicial decisions must be consistent with and integrate values shared among those directly affected by the decisions, as well as informed onlookers. First among those shared values is the central value of rational choice. The alternative to rational decision making is the legal system described in The Trial: isolated, incomprehensible and irrelevant to Joseph K. and utterly unhelpful in his search for information and meaning. suggestions. All errors are mine alone. ** The Author was a member of the University of Illinois College of Law Library staff when this article was written. 1. Franz Kafka, The Trial (New York: Random House, 1956), 3. 2. Id. 3. Id. at 7. 4. William H. Page and Richard H. Weisberg, "Foreword: The Law and Southern Literature, The Law and Southern Literature Symposium," Mississippi College Law Review 4 (Spring 1984): 165-166. 5. See, for example, "Symposium: Terror in the Modern Age: The Vision of Literature, the Response of Law", Human Rights Quarterly 5 (May 1983): 109. 6. See, for example, "Interpretative Symposium," Southern California Law Review 58 (January 1985): 1, and "Symposium: Law and Literature," Texas Law Review 60 (March 1982): 373. 7. For a recent example of an introduction to the application of deconstructive techniques to legal texts, see J. M. Balkin, "Deconstructive Techniques and Legal Theory," Yale Law Journal 96 (March 1987): 743. 8. Paul Tillich, "The Meaning and Justification of Religious Symbols," in Religious Experience and Truth: A Symposium, (New York: New York University Press, 1961): 5-6 9. Christian Goodden, "Points of Departure," in The Kafka Debate (New York: Gordian Press, 1977): 8. 10. Bert Nagel, Franz Kafka, (Berlin: Erich Schmidt, 1974): 7. Nagel's 1974 estimate: over ten thousand secondary works on Kafka. 11. Angel Flores, The Kafka Problem, (New York: Octagon Books, 1963): ix-x. 12. See, Robin West, "Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner," Harvard Law Review 99 (December 1985): 384, Richard Posner, "The Ethical Significance of Free Choice," Harvard Law Review 99 (May 1986): 1431, and Robin West, "Submission, Choice, and Ethics: A Rejoinder to Judge Posner," Harvard Law Review 99 (May 1986): 1449. 13. Joan Mellen, "Joseph K. and the Law," Texas Studies in Literature, 12 (1970-71): 295. 14. Simon Lesser, "Breaks in Perspective in Franz Kafka's The Trial," German Quarterly, 36 (1963): 31. 15. Donald Kartiganer, "Job and Josef K.: Myth in Kafka's The Trial," Modern Fiction Studies, 8 (1962-63): 31. 16. Cyrena Pondrom, "Kafka and Phenomenology: Josef K.'s Search for Information", Wisconsin Studies in Contemporary Literature 8 (1967), 78, at 84. 17. Id. 18. Pondrom gives the literary examples of Telemachus, Faust, and Job, supra note 16 at 84. 19. See text accompanying footnotes 46-65. 20. Lida Kirchberger, Franz Kafka's Use of Law in Fiction, (New York: Peter Lang, 1986). 21. Martha Robinson, "The Law of the State in Kafka's The Trial", ALSA Forum 6 (1982), 127. 22. Supra, note 20 at 9-10. 23. Id. at 11. 24. Id. at 66. 25. Id. a t 46. 26. Id. a t 52. 27. Supra, note 21. 28. Id. at 128. 29. Id. at 129. 30. Id. at 132. 31. Id. at 132. 32. Id. at 135. 33. Id. at 137. 34. See text accompanying footnotes 46-65. 35. Belief in the usefulness of rational decision processes is a central value in western culture. To the extent that decision makers can demonstrate adherence to this value (and other primary values) they can demonstrate that their decisions are legitimate. See text accompanying footnotes 38-40. 36. Martha Feldman and James March, "Information in Organizations as Signal and Symbol", Administrative Science Quarterly, 26 (June 1981), 171. 37. Id. at 175. The optimal point is the point at which the marginal expected return from additional investment in information that will improve a decision equals the marginal cost of acquiring that information. 38. Id. at 177-178. 39. Id. at 177. 40. Id. at 178. 41. Peter Harris, "Difficult Cases and the Display of Authority," Journal of Law, Economics and Organizations 1 (Spring 1985), 209. 42. See, for example, Fiss, "The Death of the Law?", Cornell Law Review 72 (November 1986), 1. 43. Joseph Sax, "The Legitimacy of Collective Values", Colorado Law Review 56 (Spring 1985) 537, at 552. 44. Id. at 557. 45. Id. at 557. 46. Eisel v. Secretary of the Army, 477 F.2d 1251 (1973). 47. Id. at 1258. 48. U.S. v. Notorianni, 729 F.2d 520 (1973). 49. Id. at 523. 50. Supra, note 16. 51. Supra, note 20. 52. Beit v. Probate and Family Court Department, 434 N.E.2d 642 (1982). 53. Id. at 643, citing The Trial at 290, (supra, note 1). 54. Ridge v. Police and Firefighters Retirement and Relief Board, 511 A.2d 418 (D.C.App. 1986). 55. Id. at 425. 56. Holloway v. Frey, 202 S.E.2d 845 (1973). 57. State v. Palamia, 470 A.2d 906 (N.H. 1983). 58. Holloway v. Frey, supra note 35, at 847. 59. State v. Palamia, supra note 36, at 909. 60. Dowd v. Calabrese, 101 F.R.D. 427 (1984). 61. Id. at 437. 62. Creamer v. Raffety, 699 P.2d 908 (Ariz. App. 1984). 63. Id. at 921. 64. In re William L., 383 A.2d 1228 (1978) 65. Id. at 1250-1251, citing The Trial at 148-49, (supra, note 1) 66. Pondrom, supra note 16 67. Id. at 88. 68. Id. at 88. 69. Id. at 93. 70. In re William L., supra note 64. 71. Id. at 1250. |
