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Volume 6, Number 2 (1982) reprinted by permission Legal Studies Forum THE LAW OF THE STATE IN KAFKA'S THE TRIAL by MARTHA S. ROBINSON* explications of his novel The Trial1 display an inventive zeal of extraordinary proportions. The book, unfinished though it is, has been interpreted variously and at length as a metaphysical statement about human fate, a dissertation on original sin, an exposure of the corruption of modern capitalism, an anatomy of neurasthenia, an illustration of the absurdity of human existence. The points of view from which its critics have approached it are many and diverse; the aspects the critics have scrutinized run the gamut from epistemological method and semiotics to Kafka's, use of gesture and the role of his female characters.2 Oddly enough, however, considering the intensity of concentration needed to have produced this mass of material, one finds in it only an occasional and fleeting reference to the setting of the story, the real world of courts and lawyers in which the author lived.3 Yet whatever structure the novel has is provided by that world or a parody of it. What may have helped to obscure this is Kafka's tendency in his letters and notebooks to use the trial motif metaphorically. It is as a law court that he sees his 1914 meeting with Felice Bauer, his fiancee, to break off their engagement, and his farewell letter to Felice's parents next day is sent, he says, from the place of execution.4 In the undelivered Letter to His Father in which Kafka describes the tortured relationship that seems always to have existed between them, he refers to "this terrible trial that is pending" between the father and his adult children.5 In these often quoted passages, as in many others, the trial is clearly a metaphor for a private ordeal, but I think it is a mistake to conclude that Kafka never uses the term in a literal sense. There is also metaphor and ambiguity in Kafka's references to law. In his lexicon, law may mean the law of God, or of nature, or the institutionalized law of the state. Sometimes it seems to mean all three, as in his aphorism On the Law which reads: The hunting dogs are playing in the courtyard, but the hare Will not escape them, no matter how fast it may be flyingThe same commingling of figurative and literal usage is found in his well-known parable The Problem of Our Laws which begins: Our laws are not generally known; they are kept secret byThus far, as in most of this little essay, Kafka appears to be speaking allegoricaRy, but a few lines later he makes an observation only too applicable to the law of the state: ...the laws are very ancient; their interpretation hasWhatever else it may be, this is a statement of fact well known to twentieth-century lawyers. Franz Kafka the writer was also a lawyer. His frequent use of the law and the trial as analogies indicates a frame of reference many lawyers share, for the readiest references are always to those with which one is most familiar. At the same time, comparisons for the sake of analogy implicity recognize the reality and actual potential of the things compared. My purpose in this article is to show how Kafka recognized, followed, and commented on the reality of the criminal law and theory of his day in The Trial. This is not in order to deny or denigrate the mytho-poetic qualities of his work, but rather to identify the model from which it draws and a level on which it can be read. Kafka received the degree of Doctor of Jurisprudence from the Karl-Ferdinand German University in Prague, in July 1906. Like many law students today, he also worked in a law office, drafting legal documents, during his last term at the University; for a year following his graduation he worked in the criminal courts. Thereafter until 1922 when, suffering from tuberculosis, he became too ill to work any longer, Kafka held an important quasi-legal position in a large insurance company in Prague concerned with workers' compensation for industrial accidents.9 There can be no doubt of his familiarity with legal theory and with the Austro-Hungarian system of courts and court officialdom in pre-war Czechoslovakia. It is this system in caricature that has enmeshed The Trial's central character, Joseph K., a thirty-year-old Chief Clerk of a large City bank. One finds him already there in the opening sentence: "Someone must have traduced Joseph K., for without having done anything wrong he was arrested one fine morning." The arresting officers, two buffoons with larceny in their hearts, have unceremoniously entered his rooms; they intercept his breakfast tray and devour his breakfast, then when he is dressed take him to be interviewed by an Inspector who is installed in the adjoining room. Protesting his innocence, K. demands to know who accuses him, but the Inspector replies that he knows hardly anything about the case. K. asks whether he may telephone his lawyer and is told that he may. The Inspector adds, however, that he sees no sense in it unless K. has private business to consult the lawyer about, but that K. should certainly telephone if he wishes. K. now does not want to call a lawyer; he suggests to the Inspector that instead of bothering any more about the justice of the affair they shake hands and regard it as over and done with. Stating coldly that the matter cannot be settled in this way, the Inspector ignores K.'s outstretched hand and prepares to leave, but as he departs advises K. not to give up hope - that he is only under arrest, nothing more. "I was requested to inform you of this," he says, "I have done so, and I have also observed your reactions. That's enough for today -You'll be going to the Bank now, I suppose."10 K. expresses surprise that he is free to go, but the Inspector explains that although K. is under arrest, this need not hinder him at present from leading his ordinary life. In part, this apprehension and arrest scene has parodied what might actually have happened, and in some details it follows the law quite accurately. Under the Habsburgs, the Czech legal system had been completely Germanized. The criminal procedure of Kafka's day, like that of other nations of continental Europe, provided for a division of criminal proceedings into two stages: (1) the preliminary examination, the rules of which were borrowed from the inquisitorial system, and (2) the trial, which allowed for all the safeguards commonly associated with the accusatory system such as publicity, the right to counsel, confrontation of witnesses, oral testimony, and a jury.11 Proceedings were set in motion by an accusation which might be made by either the public prosecutor or a private party. Should the public prosecutor abandon the criminal action, the aggrieved individual could take it up instead.12 Thus without knowing anything about it, Joseph K. could quite well have been privately accused of wrongdoing by someone - one of his clients, perhaps, or a rival at the Bank - and the matter, still unknown to him, would have been referred to an examining magistrate for investigation. The Magistrate, a judge of an inferior court, had extensive powers to hear witnesses, inspect premises, order domiciliary searches, and proceed with an arrest. The accused would not necessarily be informed in the early stages of the investigation, nor would the proceedings be made public.13 Since Joseph K. was not apprehended in the commission of a crime and, considering his position at the Bank, there was no reason to fear he would flee, he probably would not have been arrested until inquiries had indicated a likelihood of guilt. There is therefore a good reason for Franz and Willem, the men who apprehend K. in his rooms, to tell him as they do that before the authorities would order such an arrest they must be quite well-informed about the reasons for the arrest and the person of the arrestee. "Our officials, so far as I know them," says Willem,The idea that Court officials are drawn toward the guilty, and its implication that K. must therefore be guilty, has been viewed as metaphysical by commentators. In this view Willem's statement is taken to mean that the Court is a mysterious, suprajudicial body whose accusations in themselves constitute evidence of a crime.15 It is, of course, arguable that Kafka saw a parallel between metaphysical guilt viewed by transcendent authority and the accusation of an individual by the State. It is also possible that he intended to point up a perceived irrationality in the apparently rational routine procedure of secret investigation prior to the arrest. The warder, however, states what is true as a matter of law: if upon investigation the Magistrate is drawn toward an individual by evidence of guilt, he must then send out the arresting officers. To Willem's statement that this is the Law, K. replies that he does not know this Law, whereupon the other warder, Franz, interrupts to observe, "See ... he admits that he doesn't know the Law and yet he claims he's innocent." "You're quite right, but you'll never make a man like that see reason," Willem replies.16 At first reading, this exchange may seem to be, as K. finds it, merely nonsensical gabble, but it is neither nonsense nor necessarily the expression of a high moral principal as it has seemed to some critics. Those who assume that the Law referred to is moral or divine, not the law of the state, theorize that Joseph K.'s ignorance of the Law here serves as his indictment: he condemns himself by offering his ignorance as proof of his innocence.17 But the warders are really saying only that one who does not know the law cannot possibly know whether it has been violated. This is a truism. No criminal law could successfully function if ignorance of the law were a defense, and the Austrian Penal Act of 1945, an outgrowth of the Criminal Code of 1852 which would have applied in K.'s time, specifically provides that ignorance of the Act concerning felonies may not be used as a ground of exculpation.18 One commits the crime by intentionally doing the forbidden evil act, whether or not one knows it is forbidden. One of Kafka's characteristic talents is his ability thus to gloss the self-evident with absurdity. Another is his skillful use of humor. Max Brod, his literary executor and long-time friend, writes that Kafka's friends laughed uproariously when he read the first chapter of The Trial to them; that Kafka himself laughed so much there were moments when he could not read any further.19 Much of the hilarity must have been generated by the antics of the warders Franz and Willem, for they behave throughout their encounter with Joseph K. like a clownish vaudeville team, oddly dressed, one fat, one thin, popping in and out of K.'s room while engaging in swift repartee. Willem keeps clapping K. on the shoulder and butting his fat belly against him "in an almost friendly way." Blandly helping themselves to K.'s breakfast, they offer to bring him more from the coffee house across the street - if he has any money. They suggest with mock generosity that he turn over his fancy nightshifts and underwear to them since otherwise it will all be stolen at the depot he is headed for, and they gravely superintend his dressing himself for the interview with the Inspector but are outwitted by K., who feels that he gets the better of them when he slyly foregoes his bath. The entire scene is a classic burlesque that can be read as a statement of Kafka's perception of the police and their bumbling yet sinister ways. This perception returns in a later chapter when after K. has accused Franz and Willem of attempted bribery and they are being flogged for their wrongdoing, their chief complaint is that now they have lost their chances of promotion to be floggers themselves.20 In the course of K.'s interview with the Inspector, several things occur that have invited speculation by Kafka critics. One is K's failure to telephone his lawyer. That he had a right to do so was acknowledged by the Inspector and this accords with Austrian law which from 1873 onward recognized the accused's right to counsel at all stages of a criminal proceeding. The function of counsel during the preliminary stage was, however, extremely limited. The lawyer could not take part in the interrogation of the accused or in the hearing of witnesses, but could only call matters to the judge's attention, examine questionable documents, if any, and advise the client on how to respond as the matter progressed.21 Under the circumstances, since the Inspector was not questioning but merely making an arrest, K.'s lawyer, had he been present, could have done virtually nothing. The Inspector's advice about the call is therefore understandable, and K.'s failure to make it requires no esoteric explanation. Another matter often commented on and pressed for meaning is that at the end of the interview K., although under arrest, finds himself free to go about his business and lead his ordinary life. There is actually nothing extraordinary about this, and while it can be given a symbolic interpretation it needs none. In the Continental system of criminal law, pretrial detention was an exceptional measure. Only when guilt was highly probable and the offense was major, when there was danger that the accused would flee, tamper with the evidence, or repeat the offense would detention have followed an arrest.22 Failure to detain K. indicates that these factors were apparently not involved, and serves to make K.'s ultimate execution all the more grotesque and problematic. What is truly extraordinary in the arrest scene is the location of the interview and the cast of characters observing it. When he confronts K., the Inspector has set up an office in the bed chamber of a female roomer in the boarding house where K. lives. A white blouse dangles from the latch of her open window and snapshots are stuck into a mat hanging on the wall. The warders seat themselves on a chest draped with an embroidered cloth. There could, in other words, be no more inappropriate a place for a formal notification of arrest. This is one of the many instances where Kafka presents the world slightly askew, as if one were seeing it in a distorting mirror,23 and this gives a comic as well as a bizarre aspect to the scene. I think it also reveals the author's opinion of the rich and magisterial trappings of judicial proceedings which would have been especially elaborate in the pre-war Austro- Hungarian world. Like the attic in the tenement where K.'s first formal interrogation will take place, the bedroom is quite unsuitable for the proceeding, but the arrest is made nevertheless and is fully as authoritative as if it had been made in the usual public office. What matters is what is done, not where it is done; underneath all the gilt and marble of a Palace of Justice, the same makeshift quality and shabbiness inhere. The night table beside the roomer's bed has been pushed into the middle of the floor to serve as a desk. K. must stand while the Inspector sits at ease, his legs crossed and one arm resting on the back of his chair. During the interview the Inspector absent-mindedly fidgets with a matchbox or presses his hand on the table and seems to be measuring his fingers, the perfect picture of the bored public official, perfunctorily doing his duty, completely indifferent to the person involved or the outcome. But while the Inspector is a type Kafka must have been familiar with and all lawyers recognize, others in the room or observing it from outside are a strangely assorted lot. They include three young men, subordinate employees at K.'s Bank. The Inspector has apparently detained them for the interview, and this suggests that they have been questioned during the investigations preceding K.'s arrest. There is the lazy Rabensteiner, the stupid Kullich, and the toady Kaminer who has a facial twitch that causes him to seem to be forever smiling. These young men wander about the bedroom during the interview, looking at the snapshots on the wall or gazing at the proceedings aimlessly. The Inspector says they are there for K.'s convenience, to accompany him when he returns to the Bank. From a window across the street an old woman and an even older man had watched with senile inquisitiveness while the warders confronted K. in his room. Now a large, informally dressed man joins the old people and together they observe the interview proceedings attentively from their window, finally going out of the house to see K. depart when he leaves for the Bank. These observers and the young clerks distract and annoy Joseph K. intensely. Although there is the typical Kafkaian ambiguity about their function in the scene, a possible explanation is that they illustrate the undesirable consequences the writer anticipated if preliminary criminal proceedings were made public. Unlike the trial which would be conducted in the full glare of publicity, the preliminary investigation under the Austrian Code remained secret as it had been since the Medieval period.24 While there were, and are, persuasive reasons for this secrecy, including the ideal that the private investigation ensures that only those accusations sound in fact and law go to trial or become known in the community, when Kafka was writing a strong current of opinion had arisen against it.25 Whether his intention was to show the error of this opinion by bringing in the bank clerks and the curious old people who detract from rather than add to the proceedings is, of course, conjectural, but it would have been relevant for him to do so. A few days after his arrest, K. is informed that a short inquiry into his case will take place the following Sunday. He goes to the address he is given and finds it to be a crowded tenement, on a poor street of identical high grey houses. After an hour's frantic search K. finds the Court of Inquiry on the top floor. In the anteroom a young woman is washing clothes in a tub; she waves him through to the courtroom which is packed with people, most of them bearded men whom K. would have mistaken for people at a political meeting had it not been for their old black Sunday coats and the badges they wear that identify them as Court officials. A gallery crowded with even less well-dressed people surrounds the room; it is so close to the ceiling that most of the spectators cannot stand upright. The air is very thick and K. finds it difficult to see:in the dimness, dust, and reek. The Examining Magistrate reproves K. for being late, though no time had been specified for the inquiry, and is confused as to K.'s identity, thinking him to be a house painter. K. cannot restrain his indignation at this, and upbraids the Magistrate saying that his mistake is typical of this trial. He eloquently denounces the entire proceeding from its beginning and concludes by saying there can be no doubt that behind his arrest and today's interrogation there is at work a great organization that has at its disposal a judicial hierarchy, the significance of which is that innocent persons are accused, senseless proceedings are put in motion against them, and innocent people, instead of being fairly examined, are humiliated in the presence of public assemblies. He then rushes out of the hall, but is stopped at the door by the Examining Magistrate who tells him: "Today you have flung away with your own hand all the advantages which an interrogation invariably confers on an accused man.."26 Everything about this episode indicates a parody of the official private, interrogation: the inappropriate place, crowds peering from the cramped gallery, the Magistrate's desk an inadequate table set at a slant on the very edge of a crowded platform, his only records a scribbled dog-eared notebook. The Examining Magistrate, a fat, little, wheezing man more interested in talking with bystanders than in questioning K., apparently without authority to control the audience and easily humiliated, is a caricature of the highly trained professional judge who would normally have conducted such proceedings.27 The bearded men who pack the floor of the hall may be intended to represent the political aspect of criminal proceedings, but their apparently official status, the erratic way they follow and seemingly are swayed by the proceedings, and the buzz of their conversation as they begin to analyze the situation after K. rushes out of the room, suggest that they are meant to parody the jury, which, when Kafka was writing, was under attack and would soon be abandoned. Restored by the Austrian code of 1873 after its suppression twenty years earlier, the jury did not gain general acceptance by legal scholars. Hans Gross, a former judge and one of Kafka's professors at the German Univeristy, writing shortly after the turn of the century speaks of the institution of the jury as a Utopian dream.28 Its shortcomings were thought to be, first, that jurors being ignorant of the simplest psychological principles for evaluating various means of proof were unable to grasp the significance of evidence and decide difficult factual questions; and second, that their political independence was a myth since they were easily dominated by government and swayed by skillful counsel and the press.29 Kafka may well have shared his professor's views. In his fifth, sixth, and seventh terms at the University, he spent sixteen hours a week listening to Hans Gross's lectures on criminal law and procedure.30 It is inconceivable that he would not have been influenced by this brilliant scholar whose erudition was stupendous and whose work on Criminal Psychology is still a basic text. The entire interrogation scene can be read as a criticism of the existing investigative process not only because of K.'s denunciation but also from the standpoint of one of Gross's keenest observations: Every fundamental investigation must first of all again this identical, fatiguing contrary observation:Exactly this could have been said about Joseph K. and the Examining Magistrate, between whom there is never established any understanding of what the other thinks the inquiry is all about. K. assumes that he is expected to return to the Court for further interrogation the next Sunday, but when he arrives he finds the place deserted except for the young woman he had met in the antechamber. She identifies herself as the wife of the court usher, the man charged with maintenance of the apartment that houses the Court and also serves as their home. Accompanied by the wife, K. goes into the empty courtroom; he finds it looking even more sordid than before. On the Magistrate's table are several. dusty tattered volumes K. supposes are law books but discovers instead that one is a cheap salacious novel, the other contains an indecent picture. "It's so horrible here," says the usher's wife, who tells K. she is being pursued by one of the law students in the court and has also attracted the attention of the Examining Magistrate.32 Flirtatiously she seats herself on the platform, takes K.'s hand, and offers to help him however she can. K. is at first reluctant to accept either her attentions or her help, but is becoming increasingly interested when the scene is suddenly cut short by the entrance of the woman's admirer, the law student. During K.'s interrogation the previous Sunday, this young man had made a disturbance by amorously assaulting the usher's wife in the courtroom; now when he returns he embraces her and boldly carries her off, purportedly for the Examining Magistrate. Later her husband will talk with K. about the situation which, he says, is constantly being repeated and he is powerless to prevent. Wilhelm Emrich, a percipient critic and admirer of Kafka, has suggested that the role of the usher's wife as a character is to represent Woman living in conflict with the court, as contrasted to Woman standing outside it (Fraulein Burstner, the roomer whose bedroom was requisitioned by the Inspector) and Woman succumbing to the court's power (Leni, whom K. will meet in the home of his lawyer).33 But it seems to me unnecessary for her to represent anything except herself; there are reasons enough to bring her into the story to give Joseph K. someone to interact with, and for the author a scene in which to introduce a theme long a favorite of writers satirizing lawyers and judges-that of the lechery and pruriency of men of the law.34 The tradition of representing lawyers and judges as great womanizers probably antedates the Commedia dell'arte of the Renaissance, but it unquestionably became widely established in that medium. For several centuries, one of the stock characters of the Commedia was Doctor Graziano, a Bolognese lawyer noted for his gullibility and malapropisms, and above all for his unremitting lechery. Nineteenth and early twentieth century novels and plays carried on the tradition which Kafka must have felt had an element of truth sufficient to justify its perpetuation. K.'s encounter with the usher's wife is the occasion for a return to the subject of bribes introduced in the first scene with Franz and Willem. Later when K. found them being flogged as a result of his denunciation, he tried to get them off by offering a bribe himself. Now when the usher's wife offers to help K., the one thing he finally says she can do for him is inform the Examining Magistrate that nothing will cause him to bribe the court officials, that any attempt to induce him to do so will be quite hopeless.35 Bribery, besides being a matter on Joseph K.'s mind, seems to be a commonplace in the judicial system. This is not the sort of thing one can verify in the law books, but it probably had a basis in fact sufficient to justify Kafka's ironic comment. Some years ago, a California trial court rendered a not-guilty judgment in the case of a recent emigre from central Europe who was tried for the crime of offering a bribe to a police officer to induce him to drop charges against her son; her successful defense was that in her country bribery had long been an accepted part of the judicial system and hence she could not be deemed to have had the necessary intent to commit the crime. The bribery theme is again briefly repeated when K. discovers that the Law Court offices are located in an attic above the court room; perhaps it is not for lack of money that the offices are so poorly housed, he thinks, but because the court officials pocket the money before it can be used for the purposes of justice.36 Joseph K. leaves the empty courtroom after the departure of the usher's wife and will not be seen in Court again. Had Kafka finished the novel, K. might have been subjected to several additional judicial interrogations, although apparently the actual trial was never intended to take place.37 Though there will be no more judicial proceedings for K., his increasing concern with his case moves the novel on to its end at his execution. His experiences and encounters along the way furnish the reader with continuing insights into court personnel and effect. The usher returns as K. stands looking at a sign written in a childish hand showing the way to the Law Court offices, which K. wishes to see if only to assure himself that the inside of this legal system is as loathsome as its external aspect. The usher conducts him upstairs, and as they enter K. almost falls, for behind the door is an extra step like a trap for the unwary. In the shabby waiting-room, even on Sunday, there are people humbly waiting for some word about their cases. One is reminded of Dickens's ill-fated Richard Carstone, the mad Miss Flite and Mr. Gridley, whose infatuation with the suit of Jarndyce vs. Jarndyce led them to haunt the Court, going there daily in the vain hope of hearing something, anything, about their prospects. Although Kafka became a great admirer of Dickens, he does not appear to have read Bleak House at the time of the writing of The Trial 38 and the similarity of his ironic observation of those who wait seems to indicate the similarity of the effects of legal systems everywhere on people's lives. K. and the usher walk through the corridors of the offices, but ultimately the fetid air, reminiscent of the bad air in the courtroom, so sickens K. that he requires physical assistance and even then is barely able to reach the door and leave. This entire scene with its obvious criticisms of the law is enlivened by Kafka's particular brand of wry humor. An office guard is wearing a sword in an aluminum sheath; he struts about with hasty but very short steps, presumably resulting from gout. Some offices are partitioned off from the lobby with ceiling-high wooden rails where officials stand looking out at the people. One thinks of cages and cage dwellers in a zoo. A court attache explains the unbreathable air as partly the result of washing of all sorts hung up to dry in the offices, since "you can't prohibit the tenants from washing their dirty linen."39 One may ask what function a court serves other than that of providing a place for washing dirty linen. The attache opens a skylight to let in fresh air, but so much soot falls in that she has to close it at once. The Chief of the Information Bureau wears conspicuously stylish clothes bought for him by the other employees so that he can make a good impression, but he spoils it by laughing. Joseph K., however, sees nothing to laugh at. Up to this point he has maintained a casual, light-hearted attitude toward his case. From now on he takes it seriously and becomes progressively isolated and obsessed. K.'s uncle, having heard about the case in a round-about way, comes rushing in from the country to help. "The first thing to grasp," K. tells him, "is that this is not a case before an ordinary court."40 There have been suggestions of this from the beginning, but here is an explicit statement which will be reinforced by later references. Should it be taken to mean that Kafka's model is something other than the Austrian court system of his day, is some imaginary metaphysical system, or perhaps the Vehmic courts of the later Middle Ages? I think not, for despite distortions, the points of similarity with the Austrian system are too great, the ironic commentary too pertinent. The inspiration of the Vehmic courts is suggested by Meno Spann in his short critical biography of Kafka.41 It is true that these ancient tribunals centered in Westphalia exercised criminal jurisdiction and were composed of the free men of the community, to whom the bearded, black-coated men assembled at' K's interrogation might be comparable. But they acted in total secrecy without spectators unlike Kafka's Court of Inquiry, and most important, there would have been no place in them for the lawyer Huld, to whom K.'s uncle insists he go, and who by temperament and profession is unquestionably modern. The Czechoslovakian lawyer of Kafka's day was far better educated than an American counterpart. Law students spent three and one-half to four years in University in rigorous study of law, attending lectures for twenty hours a week in subjects ranging from Roman Law to statistics and devoting one term to a study of the humanities. At the end of these studies the student was required to pass a difficult state examination, after which one could enter upon preparatory service, a sort of apprenticeship for receiving some practical training. On its completion, a second difficult state examination had to be passed.42 Lawyer Huld, it is to be noted, is Doctor Huld, indicating that he became a doctoral candidate at some point in his Univeristy career, probably after passing the first state examination qualifying him for the Juris Doctor degree. This is a purely academic degree, unnecessary for law practice, but often sought because of the prestige it conferred. K.'s lawyer is thus a prestigious one, likely to have the influential friends at Court he boasts of; he also has the foibles and personality traits that one who knows lawyers will instantly recognize as characteristic. Huld is ill when the uncle brings K , to him, and he is proud that the Chief Clerk of the Court is also visiting him. When K. returns for consultations in his office the lawyer either does all the talking or gravely sits behind his desk gazing at the floor, now and then ponderously handing out some empty admonition. When he talks, he brags of his friends among the judges, of his experience, of difficulties encountered and victories won. He does nothing, his erudition swallowed up by his garrulity, and he leaves K. confused and dissatisfied. In actuality, however, no lawyer could have done very much for K. during the preliminary stage of the case, for, as I pointed out earlier, while the accused was authorized to employ a lawyer to take care of the preservation of rights at this stage, counsel could not take an active part in the hearings. Doctor Huld has K's first plea almost ready to be filed, but he observes that there is no hurry about it, and this was probably true. Under Austrian procedure, pleas entered by defense counsel became critically important only if an investigation led to a trial, and this has not occurred in Joseph K.'s case. The responsibility for authorizing a trial rested with the judge in charge of the investigation, who decided whether there was sufficient evidence of the guilt of the accused to warrant it. If this determination was made, the complete dossier of the case would be transmitted to a higher ranking judge who would preside at the trial and would himself examine the defendant and witnesses before counsel for either prosecution or defense would be allowed to question them. Pleas would be entered and arguments made after the presentation of evidence.43 Huld's boast of wide acquaintance with the judges is thus not entirely irrelevant, for they held the key to a discharge or acquittal. Kafka presents them through Huld's eyes, and through Leni, the lawyer's nurse and housekeeper, and Titorelli, the court portraitist. All of them see judges as men who are vengeful, dishonest, bad-tempered, unpredictable and, above all, vain. In K.'s eyes they have already been cast as great lechers. In theory, the judge in a civil law country was then, as now, an educated lawyer who, having passed his second state examination with a high mark, had applied for appointment to the judiciary, a career service. Normally the successful applicant was appointed to begin in the lowest court, but had hopes in time of being promoted to a higher one.44 In the period of which Kafka writes, the Austrian Ministry of Justice had plenary power over judicial appointments and promotions and this was undoubtedly exercised in some cases so as to justify Kafka's obviously low opinion of those who were chosen. As time passes without any activity in his case, K. becomes increasingly anxious and distrustful of Huld. At the suggestion of one of the Bank's clients, he visits the mysterious painter of judges, Titorelli, who offers to help. Then, resolved to dismiss Huld, he goes to the lawyer's home where he encounters another of Huld's clients, a tradesman named Block who tells K. about his own case which has been pending some five years. Neither of these episodes is fully worked out. Kafka seems to have intended to develop K's relationship with Titorelli in later chapters,45 and the chapter in which Block appears was never finished. Hence these episodes are somewhat unsatisfactory both as to symbol and story, but the conversation with Block serves to introduce a theme that for many years dominated the debate among European scholars of competing theories of criminality. Block says he was one of those waiting in the lobby of the court offices the day K. came through, and that after seeing K. the others declared he would soon be found guilty for it is commonly believed by those accused of crime that one can tell from a man's face,46 especially from the line of his lips, how his case will turn out. A variant of this idea is. reflected in Lawyer Huld's subsequent observation that accused men are always the most attractive, so much so that one experienced in such matters can pick out, one after another, all the accused men in the largest of crowds.47 When Kafka was writing this, European thought on the subject of criminology for more than thirty years had been riven by controversy between two schools, the polemic being whether the criminal is born so or is produced by circumstances. On the one side were the followers of Enrico Ferri, founder of Criminal Sociology who set out to demonstrate that crime is the product of a variety of physical and social forces. On the other side were adherents of the school of Criminal Anthropology, which, influenced by its precursor, phrenology, postulated the born criminal recognizable by certain anatomical signs reminiscent of primitive humans.48 Founder of the school, the Milanese physician and Darwinist, Cesare Lombroso, discovered in his own studies a verification of conclusions reached in an 1844 study of convicts in the prison at Toulon: writing in 1876,49 Lombroso stated that among the physical characteristics of criminals is disproportionate development of mandibles and cheekbones - the 1844 study had found that enormous jaws and masticatory muscles are characteristic. Lombrosols seminal work, The Criminal in Relation to Anthropology, Jurisprudence and Psychiatry, went through five editions; the last, the edition of 1900, would have been the one Kafka knew. His opinion of Lombrosian theory that physical appearance connotes criminality is indicated by Block who calls the idea that guilt can be read in the lines of a man's lips a silly superstition. But then one must remember, Block says, "people are too tired and distracted to think and so they take refuge in superstition."50 The debate among the scholars will be fated to continue for a time, but Kafka has slyly had his pithy say. The more the thought of K's case oppresses him, the more ambiguous its nature and Kafka's references to the Law become. In the famous legend of the Law, told in the penultimate chapter, Kafka is obviously writing about the law of God or Nature, but in Joseph K.'s reflections on his case at this time, one cannot be sure what law is involved, and in the last chapter of the book Kafka deliberately obscures his intent. Two men are leading K. through the streets to his execution when a policeman approaches, but K. avoids him instead of asking for help. Is the policeman an officer of the State, opposed to the mysterious power that has jurisdiction of K.'s case? Kafka refuses to tell us. Originally he wrote the passage as follows: They went along several paths mounting upward. ThereHe then rewrote the passage in its present published form: They went through several steeply rising streets, in himself and the policeman he started to run, and hisBy here deleting all reference to the State, Kafka could have meant that the law of the police and the law of Joseph K.'s executors are one and the same. He leaves us to wonder about this, but not about his opinion of the law of the state. In what has gone before he has clearly told us that the police are corrupt, judges are disreputable and vain, lawyers are long on talk but short on performance, some self-evident rules of law are absurd, and the places in which law is administered are sordid and bizarre. He has demonstrated how the investigative process fails when the participants fail to define their goals, and how undesirable inside observers of it can be. He has demolished the theory of the born criminal whose physical appearance is condemnation, and has shown the profoundly demoralizing effect on a person of an accusation of crime. Kafka should not be grudged a retreat into ambiguity at the end. |
