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What does a tubercular Czech Jew, born and raised in Prague, who

died in June 1924, have in common with a Maronite Catholic of mixed

Lebanese and Syrian descent, born and raised in Detroit during the 1950s

and 1960s, and who currently haunts the streets of twenty-first century New York City? If the Czech Jew is Franz Kafka and the Maronite Detroiter is Lawrence Joseph, there are far more similarities than one may expect considering the expanse of time and space separating their lives and experiences. 1 Both studied and eventually practiced law: Kafka in the context of insurance, employment, and workers compensation, and Joseph with the international law firm of Shearman & Sterling.2 Kafka was a short story writer and novelist while Joseph is an acclaimed poet and novelist.3 In both of their literary works, law and legal themes are often at the center of their writings. Nonetheless, the writers differ significantly in how they depict the law in their works.

Joseph’s writing on the law, especially his novel and exposé Lawyerland, is intimately connected with the practice and experience of law in the late twentieth and early twenty-first centuries. 4 Although the anecdotes and vignettes presented in Lawyerland draw back the curtain of the law and expose it to the light of the non-lawyer world, there is nothing inherently bizarre or absurd about the world of Lawyerland. Lawyerland is a work of realism, not necessarily nonfiction, as the prefatory reader’s note * Adjunct Professor of Law, Georgetown University Law Center; Attorney, United States Department of Justice. The views and opinions expressed herein do not represent those of the federal government or the Department of Justice. The author would like to thank Lawrence Joseph for his gracious and insightful comments on initial drafts of this article, and the staff at the Southern California Interdisciplinary Law Journal for their extraordinary work in editing and publishing this piece.

1. For biographical information on Kafka and Joseph, see Patrick J. Glen, The Deconstruction and Reification of Law in Franz Kafka’s “Before the Law” and The Trial, 17 S. CAL. INTERDISC. L.J. 23, 27–33 (2007); Lawrence Joseph Faculty Profile, ST. JOHN’S UNIV. SCH. OF LAW, http://www.stjohns.edu/academics/graduate/law/faculty/Profiles/Joseph (last visited Oct. 10, 2011).

2. See sources cited supra note 1.

3. See sources cited supra note 1.


48 Southern California Interdisciplinary Law Journal [Vol. 21:47 makes clear: it is a truthful work, even if not a factual work.5 Clothed in this guise, this work has been pivotal—as no review has failed to note—in fully understanding the operation, shortcomings, inconsistencies, and contradictions of law and its practice in contemporary America. In short, Lawyerland is a book that clearly and emphatically takes aim at the law and lawyers, even as it disavows any intent to explicate or rationalize what it finds. Thus, the law of Lawyerland is a recognizable law, even if this law leaves a great deal to be desired.

The law of Kafka, on the other hand, bears little resemblance to the regimented system and practice depicted in Lawyerland. As Judge Richard Posner stated, “‘Law’ in Kafka’s fiction is, for the most part, not law as we think of it, a system of rules; it is malevolent whimsy.”6 Based on this view and interpretation of Kafka’s law, Judge Posner has consistently argued that whatever Kafka’s writings might be about, they do not, in any meaningful way, engage in questions pertaining to the law or legal themes.7 Regarding Kafka’s unfinished novel, The Trial, Judge Posner argues that the use of law acts only as a frame of reference or symbolic lens through which other, more personal, themes may be explored and refracted.8 The Trial is not about a trial, nor is it about due process, criminal procedure, or

5. Id. at A Note To The Reader.

6. Richard A. Posner, The Ethical Significance of Free Choice: A Reply to Professor West, 99 HARV. L. REV. 1431, 1432 n.8 (1986) [hereinafter Posner, A Reply to Professor West].

7. See, e.g., RICHARD A. POSNER, LAW & LITERATURE (rev. & enlarged ed., 1998) [hereinafter POSNER, LAW & LITERATURE]; Posner, A Reply to Professor West, supra note 6;

Richard A. Posner, Law and Literature: A Relation Reargued, 72 VA. L. REV. 1351 (1986) [hereinafter Posner, A Relation Reargued].

8. See, e.g., POSNER, LAW & LITERATURE, supra note 7, at 134 (“People often think that the point of The Trial is how awful it is to be arrested, charged with an unspecified offense by a secret court whose inscrutable proceedings tend to drag on interminably, and then clandestinely and summarily executed; that in short it is a book about the perversion of legal justice. I don’t read it so.”); Posner, A Reply to Professor West, supra note 6, at 1447 n.42 (“Reading The Trial... you cannot believe that the ‘court’—with its rickety tenements, erotic overtones, and functionaries with funny clothes—has much to do with government, notwithstanding Kafka’s borrowings of many details of Austro-Hungarian criminal procedure.... [The court] seems nothing so worldly as an organ of state power.”); Posner, A Relation Reargued, supra note 7, at 1358 (“Most scholars... do not think that the novel’s legal aspects have more than a symbolic significance.... The literary significance of The Trial is unlikely to derive from its descriptions of Austro-Hungarian criminal procedure.

Very few of Kafka’s readers have any interest in Austro-Hungarian criminal procedure or, for that matter, in due process of law (the failure to notify the protagonist of the charge against him and to accord him a proper hearing before his execution are, of course, flagrant violations of due process....”).

2011] The Possibilities of Jurisprudential Literature 49 law at all; for Judge Posner, “[t]he heart of The Trial lies elsewhere... in K.’s futile efforts to find a human meaning in a universe, symbolized by the court, that has not been created to be accommodating or intelligible to man but is arbitrary, impersonal, cruel, deceiving, and elusive.” 9 Likewise, Kafka’s famous parable Before the Law is not simply about a man coming to find the Law, but about “a universe in which all is unintelligibility, dislocatedness, alienation, [and] human isolation.”10 Similarly, In the Penal Colony is only ostensibly concerned with the lack of due process and execution. 11 The story is not a jurisprudential allegory, but rather is concerned with the isolation of the officer in his attempts to bring others into line with his view regarding an elaborate mechanized killing machine and its benefits.12 Judge Posner’s reading of Kafka’s writings on the law is neatly summed up by Robin West, professor of law and philosophy at Georgetown Law: “These stories just can’t be telling us something about law, because law is a ‘system of rules,’ and what Kafka describes is more like ‘malevolent whimsy.’”13 Judge Posner, of course, is not alone in critiquing the readings of Kafka’s work that have focused on the legal themes in those writings to the exclusion of other possible interpretations. But his limiting interpretation is not the dominant one in academia. Professor West, for instance, has used Kafka’s writings to critique Posner’s own economic accounts of law and legal institutions.14 Regarding The Trial, Justice Anthony Kennedy of the United States Supreme Court stated that it “is actually closer to reality than fantasy as far as the client’s perception of the system,” and that “[i]t’s supposed to be fantastic allegory, but it’s reality. It’s very important that lawyers read it and understand this.”15

9. POSNER, LAW & LITERATURE, supra note 7, at 135.

10. Id. at 135–36.

11. Id. at 129.

12. Id.

13. Robin West, Submission, Choice, and Ethics: A Rejoinder to Judge Posner, 99 HARV. L. REV. 1449, 1452 (1986) (internal citation omitted) [hereinafter West, Submission, Choice, and Ethics].

14. See Robin West, Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner, 99 HARV. L. REV. 384 (1985).

15. Terry Carter, A Justice Who Makes Time to Read, and Thinks All Lawyers Should, Too, CHI. DAILY L. BULL., Jan. 26, 1993, at 2.

50 Southern California Interdisciplinary Law Journal [Vol. 21:47 What accounts for these differences of opinion about Kafka’s work?

Of course, reasonable minds may differ, but is there something more fundamental at play that results in a sharp dichotomy being drawn in interpretations of Kafka’s writings on the law? First, Judge Posner’s interpretations of Kafka often seem incorrect and fail to take into account the work as a whole. For instance, his interpretation of the officer’s isolation and inability to convince others of his position in In the Penal Colony fails to account for what is perhaps the story’s most important aspect—the phrase, “Be Just!” that the officer passes on himself.16 Second, regardless of whether or not Judge Posner’s interpretations are conceivable or permissible, he offers no compelling rationale for limiting the range of interpretations of Kafka’s works to nonlegal, philosophical, and sociological interpretations. This is especially troubling considering that Kafka’s life was spent studying and practicing law. Any attempt to minimize the importance of Kafka’s own experiences and background to his writing, and to, essentially, ignore the many mentions and depictions of law, is nothing other than “reading by political fiat,”17 unsupported by an objective engagement with the text.

Finally, and most importantly in the context of the instant Article, the different views of Kafka held by Judge Posner, on the one hand, and Justice Kennedy, on the other, are the result of perspectival differences in their approach to the texts under review. Judge Posner’s view is academic, judicially oriented, and prejudiced at the outset toward a very specific understanding of law—law as a well-ordered system of rules, capable of operating rationally, efficiently, and justly. His view is from the bench, from the interior of a system he has spent the majority of his life acting within, and thus gives an interpretation of law as one initiated into its mysteries. Most importantly, from this perch, law is something objective and definite—not amorphous, mysterious, or absurd. Justice Kennedy is no less one of the initiated than Judge Posner, yet his statement clearly evinces a perspective distinct from Judge Posner’s—that of the litigant or other legal subject. Justice Kennedy’s quote reflects a transference of perspective, a disrobing of sorts. By offering this specific view of Kafka, Justice Kennedy is not quoted as “Justice Kennedy,” or even as a lawyer, but rather as one outside the system desperate to understand and operate

16. See FRANZ KAFKA, In the Penal Colony, in THE METAMORPHOSIS, IN THE PENAL COLONY, AND OTHER STORIES 191, 219 (Willa Muir & Edwin Muir trans., Shocken Books 1995) (1948) [hereinafter KAFKA, In the Penal Colony].

17. West, Submission, Choice, and Ethics, supra note 13, at 1452.

2011] The Possibilities of Jurisprudential Literature 51 within the system of law. His quote arises from the perspective of the man from the country, humbly waiting unto death before the Door of the Law,18 or Joseph K., sitting bewildered in his landlady’s sitting room charged with a phantom crime by a mysterious entity.19 Law in this view is subjective, superficial, mysterious, arbitrary, and absurd. If there is a system from this perspective, it is not ordered, but chaotic.

The important point here is that the law is the same in either case—it is only the view that has changed. The same system manifests itself differently when experienced in different veins, whether it is the judge interpreting and applying the law, the lawyer arguing the law, or the litigant subjected to the law. Judge Posner and Justice Kennedy’s interpretations of Kafka are complementary, not contradictory; they represent two sides of the same coin. Likewise, Kafka’s writings on the law are complementary to Joseph’s writings on the law, specifically, Lawyerland. 20 The starkest differences in the way Kafka and Joseph depict the law can be interpreted as simply perspectival shifts in the description of the same system. Kafka approaches law from the outside looking in, as the anxious litigant bowed at the knees before “The Law,” whereas Joseph approaches law from the inside, as the lawyers and judges of the court view and experience the law, in all its mundane detail. Reading Kafka and Joseph together highlights the competing and superficially exclusive characterizations of the law that may arise from multiple perspectives of the same context. Thus, where a judge or lawyer may not deem law a system of “malevolent whimsy,”21 a litigant appearing before that judge very well might see it as such, even though there is no objective difference in the law to which they are each referring.

The difference is one both of experience and perspective.

The main focus of this Article is to provide a reading of Kafka and Joseph that synthesizes their works, culminating in a unitary but multifaceted interpretation of law. To this end, Section II addresses Kafka’s main writings on the law, including The Trial, 22 Before the Law, 23 The

18. In Before the Law, Kafka uses “the Law” to refer to a place; references in this Article to “the Law” with the word law capitalized should be construed accordingly. See FRANZ KAFKA, Before the Law, in THE COMPLETE STORIES 3–4 (Nahum N. Glatzer ed., 1946) [hereinafter KAFKA, Before the Law].

19. See generally FRANZ KAFKA, THE TRIAL (Breon Mitchell trans., Shocken Books 1998) (1925) [hereinafter KAFKA, THE TRIAL].

20. JOSEPH, supra note 4.

21. Posner, A Reply to Professor West, supra note 6.

22. KAFKA, THE TRIAL, supra note 19.

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