Lawyers and Literature
James R. Elkins
Kafka's "Before the Law"
Frank Kafka, "Before the Law," in Nahum N. Glatzer (ed.), Franz Kafka: The Complete Stories and Parables 3-4 (New York: Quality Paperback Book Club, 1971)(Willa & Edwin Muir trans.):
BEFORE THE LAW stands a doorkeeper on guard. To this doorkeeper there comes a man from the country and prays for admittance to the Law. But the doorkeeper says that he cannot grant admittance at the moment. The man thinks it over and then asks if he will be allowed in later. "It is possible," says the doorkeeper, "but not at the moment." Since the gate stands open, as usual, and the doorkeeper steps to one side, the man stoops to peer through the gateway into the interior. Observing that, the doorkeeper laughs and says: "If you are so drawn to it, just try to go in despite my veto. But take note: I am powerful. And I am only the least of the doorkeepers. From hall to hall there is one doorkeeper after another, each more powerful than the last. The third doorkeeper is already so terrible that even I cannot bear to look at him." These are difficulties the man from the country has not expected; the Law, he thinks, should surely be accessible at all times and to everyone, but as he now takes a closer look at the doorkeeper in his fur coat, with his big sharp nose and long, thin, black Tartar beard, he decides that it is better to wait until he gets permission to enter. The doorkeeper gives him a stool and lets him sit down at one side of the door. There he sits for days and years. He makes many attempts to be admitted, and wearies the doorkeeper by his importunity. The doorkeeper frequently has little interviews with him, asking him questions about his home and many other things, but the questions are put indifferently, as great lords put them, and always finish with the statement that he cannot be let in yet. The man, who has furnished himself with many things for his journey, sacrifices all he has, however valuable, to bribe the doorkeeper. The doorkeeper accepts everything, but always with the remark: "I am only taking it to keep you from thinking you have omitted anything." During these many years the man fixes his attention almost continuously on the doorkeeper. He forgets the other doorkeepers, and this first one seems to him the sole obstacle preventing access to the Law. He curses his bad luck, in his early years boldly and loudly; later, as he grows old, he only grumbles to himself. He becomes childish, and since in his yearlong contemplation of the doorkeeper he has come to know even the fleas in his fur collar, he begs the fleas as well to help him and to change the doorkeeper's mind. At length his eyesight begins to fail, and he does not know whether the world is really darker or whether his eyes are only deceiving him. Yet in his darkness, he is now aware of a radiance that streams inextinguishably from the gateway of the Law. Now he has not very long to live. Before he dies, all his experiences in these long years gather themselves in his head to one point, a question he has not yet asked the doorkeeper. He waves him nearer, since he can no longer raise his stiffening body. The doorkeeper has to bend low towards him, for the difference in height between them has altered much to the man's disadvantage. "What do you want to know now?" asks the doorkeeper; "you are insatiable." "Everyone strives to reach the Law," says the man, "so how does it happen that for all these many years no one but myself has ever begged for admittance?" The doorkeeper recognizes that the man has reached his end, and to let his failing senses catch the words, roars in his ear: "No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it."
The parable leaves me with questions ringing in my ear; I imagine them (coming from you and from me) as they cascade forth:
– what is this? why are we reading it? no reason to beat around the bush, get to the basics: is there some purpose in reading this? what am I supposed to do with this?
– another cut at it: what can I carry away with me from this reading of “Before the Law”? of this so-called parable?
– off stage (right): who is Kafka? why does he write this way? if he wants this story (parable) to mean something why doesn’t he just tell me what it means?
– off stage (left): what is The Law? is this supposed to be a “symbol” or something? a “symbol” of what? why are literary folks always so enamored with symbols?
The curtain slowly begins to descend on our little parable, but the questions still tumble forth:
– what is a parable? how does one of these things work? (what/how did you know about parables before you read this one?)
– what, if anything, do you have to say about Kafka’s little parable? (and what would you think about someone who might try to “interpret” it? isn’t just “reading” it enough?)
– does it matter (and how) in your reading of the Kafka parable that you happen to be a law student?
"One of Kafka's favourite pieces was a short parable, entitled 'Before the Law', which was printed no less than three times: in the almanac Vom Jungsten Tag, in the Jewish weekly Selbstwehr, and in the ninth chapter of The Trial. Critics, including Kafka himself, have ever since busied themselves with making sense of this paradoxical story." Franz Kuna, Kafka: Literature as Corrective Punishment 132 (Bloomington: Indiana University Press, 1974).
How is one to make sense of Kafka's parable, "Before the Law"? Joyce Carol Oates, in her foreword to the Quality Paperback Book Club edition of the "complete stories and parables" contends that "Franz Kafka's stories and parables are not at all difficult to read and to understand. (To explain--that is another matter: but a peripheral one.) In fact, one might claim that alone among the greatest of twentieth-century writers Kafka is immediately accessible. His unique yet powerfully familiar world can be entered by any reader and comprehended feelingly at once, regardless of background or literary training." [Joyce Carol Oates, "Kafka as Storyteller," in Nahum N. Glatzer (ed.), Franz Kafka: The Complete Stories and Parables ix-xxi, at ix (New York: Quality Paperback Book Club, 1971)] How would you, after reading "Before the Law" try to defend Oates claims about the parable being accessible and offering a world that is "powerfully familiar"?
As you try to map out strategies for reading, interpreting, and putting the Kafka story to use, of what help is it to know that the story is often referred to as a parable? [Locating the Parable]
My Webster's Seventh New Collegiate Dictionary provides the following definition: "a usu. short fictitious story that illustrates a moral attitude or a religious principle." "Before the Law" is certainly short, and it appears to be fictitious, but what "moral attitude" does it illustrate?
If Kafka is interested in talking about "moral attitudes" why doesn't he simply tell us what those attitudes are and why we should be interested in them? Why take the risk that a reader might misinterpret the story when he can simply tell us in a straightforward way what he wants us to know? Growing up in in Kentucky, I was sometimes told, "don't beat around the bush, get to the point." What kind of problems do you foresee for readers who take this admonition too seriously?
Richard Sherwin presents another version of the Kentucky admonition: "People prefer stories neat. Recognizable characters, familiar motives, and recurring scenarious of conflict and resolution are typical elements of our workaday narrative world." [Richard K. Sherwin, Law Frames: Historical Truth and Narrative Necessity in a Criminal Case, 47 Stan. L. Rev. 39, 40 (1994)][Sherwin goes on to note: "Forces beyond our reckoning and control--forces like chance, fate, or even illusion--seem to have no place in the legal system. For how could we judge in a universe that does not recognize human agency? What could judgment mean in a world without motivation and intentionality, in a world where things just happen? Without order and certainty about the past (historical truth) and the present (narrative necessity) there is no place for us. Fear of human obsolescence and chaos may thus make even the lie a haven." Id. at 80.]["Lawyers and legal scholars can learn to assess more candidly their own and others' meaning making habits. This includes evaluating omissions, inconsistencies, and plotlines that flow from deep (usually hidden) beliefs and assumptions about what truth and justice are and how they operate in the world. These beliefs in turn often stem from subconsciously assimilated story forms, myths, and popular images. If this is so, we need to recognize and assess the effect of these ingrained preferences on how we tell stories as well as on how we hear them, being particularly alert to the exploitation of instinctive preferences for narrative techniques like causal linearity, story closure, and tantalizing scripts and stereotypes." Id. at 81-82]
John Bonsignore, a close friend and a marvelous teacher, admitted to beginning all of his law courses (Bonsignore taught in an undergraduate legal studies program) with Kafka parables. John is also honest enough to report that the vast majority of his students disliked Kafka, some even hated his parables, which he found " a rare intensity of feeling (though negative) in a place as prosaic as a classroom." [John Bonsignore, In Parables: Teaching Through Parables, 12 Legal Stud. F. 191 (1988)]. Why would students, with a taste for reading all kinds of texts, develop such intense feelings about Kafka's parables?
If you are going to attempt to get beyond reading and actually interpret the Kafka parable, you've got to figure out where to begin. There are two rather obvious strategies that come immediately to mind: (i) Start with the more abstract, philosophical question--what is this parable about? (ii) If you are predisposed against abstract, philosophical questions--as are a fair number of law students--then you might search though the parable to identify characters, events, and any other discrete elements you can locate.
How does a reader get beyond mere reading, recording of words, naming of characters, ascertaining the plot? Thomas C. Oden, writing about Kierkegaard's parables asks, perhaps rhetorically, whether Kierkeggard's parables are "mere entertainment, revealing the comic side of human pretenses" or perhaps, they are "subtle poetry, with virtually inexhaustible levels of meaning?" Thomas C. Oden, “Introduction,” to Thomas C. Oden (ed.), Parables of Kierkegaard vii-xviii, at ix. (Princeton, New Jersey: Princeton University Press, 1978). Oden goes on to note, that in reading Kierkegard's parables, readers are, "in a sense taken unawares into potentially new levels of insight when they identify vicariously first with the character who poses the dilemma and then with the developing circumstances of the plot that metaphorically bestows some unexpected angle of vision on the dilemma. So the readers often do not quite grasp what has hit them in this fantasized situation until they move more deeply into the self-examination that the parable elicits and requires. Thus, it should be remembered that, however witty these stories may be, Kierkegaard's purpose was not simply to amuse, but to edify, to upbuild (opbygge), to draw his readers into self-awareness, to sensitize moral and spiritual consciousness to the task and gift of authentic human existence." Id. at xii.
footnote: Edify. Not a word I use every day, but one I remember from Robert Pirsig's Zen and the Art of Motorcycle Maintenance (New York: William Morrow and Co., 1974)(a book that, left to my own whims, would be required reading in law school). In Zen and the Art of Motorcycle Maintenance, Pirsig talks about edification as one of the goals he has in mind for what might be called mini-lectures on philosophy that he identifes with the old-time Chautauqua. Here's the way Pirsig puts it:
What is in mind [for Zen and the Art of Motorcycle Maintenance] is a sort of Chautauqua--that's the only name I can think of for it--like the traveling tent-show Chautauquas that used to move across America, this America, the one that we are now in, an old-time series of popular talks intended to edify and entertain, improve the mind and bring culture and enlightenment to the ears and thoughts of the hearer. The Chautauquas were pushed aside by faster-paced radio, movies and TV, and its seems to me the change was not entirely an improvement. Perhaps because of these changes the stream of national consciousness moves faster now and is broader, but it seems to run less deep. The old channels cannot contain it and in its search for new ones there seems to be growing havoc and destruction along its banks. In this Chautauqua I would like not to cut any new channels of consciousness but simply dig deeper into old ones that have become silted in with the debris of thoughts grown stale and platitudes too often repeated. . . . Now the stream of our common consciousness seems to be obliterating its own banks, losing its central direction and purpose, flooding the lowlands, disconnecting and isolating the highlands and to no particular purpose other than the wasteful fulfillment of its own internal momentum. Some channel deepening seems called for." [pp. 15-16][Much later in the narrative, there is comment on the "series of lecture-essays," a "sort of Chautauqua" which has, Pirsig says, turned out to be "so hugh and difficult. Like trying to travel through . . . mountains on foot." p. 172]
I have tried to make explicit my intention that Lawyers and Literature foster reflection and introspection. Some of the readings for the course are quite explicit in this regard, others push us to reflection by a more indirect route. Consider, the Kafka parable, as Thomas C. Oden does Kierkegaard's parables as the kind of "indirect communications" which "confront us with a choice between possibilities of self-understanding, so that in the process of having to choose, we discover ourselves, or something of ourselves. Parable is indirect both because it tends to 'deceive the hearer into the truth,' and because it inconspicuously requires us to make imaginative choices, so that in doing so we are in some sense offered the possibility of more fully choosing to become ourselves." Oden, at xiii.
A Kierkegaard parable:
It is related of a peasant who came to the Capital, and had made so much money that he could buy himself a pair of shoes and stockings and still had enough left over to get drunk on—it is related that as he was trying in his drunken state to find his way home he lay down in the middle of the highway and fell asleep. Then along came a wagon, and the driver shouted to him to move or he would run over his legs. Then the drunken peasant awoke, looked at his legs, and since by reason of the shoes and stockings he didn't recognize them, he said to the driver, "Drive on, they are not my legs." [S. Kierkegaard, The Sickness unto Death, p. 187]
Kafka on Parables: "Many complain that the words of the wise are always merely parables and of no use in daily life, which is the only life we have. When the sage says: 'Go over,' he does not mean that we should cross to some actual place, which we could do anyhow if the labor were worth it; he means some fabulous yonder, something unknown to us, something too that he cannot designate more precisely, and therefore cannot help us here in the very least. All these parables really set out to say merely that the incomprehensible is incomprehensible, and we know that already. But the cares we have to struggle with every day: that is a different matter. Concerning this a man once said: Why such reluctance? If you only followed the parables you yourselves would become parables and with that rid of all your daily cares. Another said: I bet that is also a parable. The first said: You have won. The second said: But unfortunately only in parable. The first said: No, in reality: in parable you have lost." [The Basic Kafka 158 (New York: Pocket Books, 1971)]
John Bonsignore, a friend, colleague, and gifted teacher, introduced me to the pedagogy of and continued need for parables. His writing on the pedagogy of parables has been influential in my decision to use them in Lawyers and Literature. [See John J. Bonsignore, In Parables: Teaching Through Parables, 12 Legal Stud. F. 191 (1988)]
Kafka, as a university student, "first studied chemistry for a whole fortnight, then he took German for one term, then law--this last only as a makeshift, with no preference for it . . . . A plan to continue his German studies in Munich . . . was never carried out. Law he took up with a sigh because it was the school that involved the least fixed goal, or the largest choice of goals–the bar, the civil service–that is to say, the school that put off longest making a decision and anyhow didn't demand any great preference. On the subject of Kafka's dislike of the study of law, which he never attempted to conceal, I find the following entry in his diary of (1911): 'Out of an old notebook: Now in the evening, after studying since six o'clock this morning, I noticed how my left hand clasped the the fingers of my right hand for a few moments, in sympathy.' " [Max Brod, Franz Kafka: A Biography 40-41 (New York: Schocken Books, 1937)]
"On July 18, 1906, Kafka obtained his doctorate in jurisprudence at the Imperial and Royal Karl-Ferdinand German University of Prague.
He did the usual so-called year in the courts, i.e. the unpaid practice in the law courts which those lawyers who intend to be called to the bar have to go through. Kafka never had any intention of following a legal career–he used this year only as a breathing space after the strain of the examinations, and also as a breathing space in which to look round for a properly paid job. . . . [W]hen it came to the point of choosing a profession, Franz postulated his job should have nothing to do with literature. That he would have regarded as a debasing of literary creation. Breadwinning and the art of writing must be kept absolutely apart, a 'mixture' of the two, such as journals, for example, represents, Kafka rejected–although at the same time he never laid down dogmas, but merely withdrew, as it were, with a smile, explaining that 'I just can't do it.' . . .
What we both strove after with burning ardor was a post with a 'single shift'--that is, office from early morning till two or three in the afternoon . . . ." [Id. at 78-79]
Footnote: "[W]ith a brutal directness Kafka willed himself into the slavery of a certain kind of office-work. Brod interprets this as a noble, misguided effort to keep his art pure and uncommercial; another line of critics argue the influence of the bureaucracy on the stories. But the plain question is: why the particular job, so carefully studied for? How does it manage to be for years the daily occupation of the man who is thinking up those stories?" [Paul Goodman, Kafka's Prayer xvii (New York: Hillstone, 1976)]
"Parable serves as a laboratory where great things are condensed in a small space." [Mark Turner, The Literary Mind 5 (New York: Oxford University Press, 1996)]
A parable uses ordinary language to explain the unknown. They rely upon imagery and ordinary experience to engage the reader. A parable moves the reader from the known to the mysterious. "At the heart of the parabolic method lies a recognition of the power of language . . . to awaken the imagination, to stir the will, to shape our very understanding of reality and to call us into being and response." [Nicola Slee, Parables and Women's Experiences, 80 Religious Educ. 232, 235 (1985)]
"A parable is an extended image, or word-picture, drawn from experience. It is created for the purpose of making an analogy with something that is unknown to us. By using what we know of the ordinary experience as our model, we can construct analogies by which to comprehend the unknown." [Charles T. Davis, Parables; commentary previously posted on the web, now removed][permission to quote from the commentary was graciously given by Professor Davis, now retired, from Applachian State University][Professor Davis goes on to point out that: "Parables do not intend to convey information. They act as pointers or direction markers."]
One reader's response to the parable: "We write to expose the unexposed. If there is one door in the castle you have been told not to go through, you must. Otherwise, you'll just be rearranging furniture in rooms you've already been in. Most human beings are dedicated to keeping that one door shut. But the writer's job is to see what's behind it, to see the bleak unspeakable stuff, and to turn the unspeakable into words–not just into any words but if we can into rhythm and blues." [Anne Lamott, Bird by Bird: Some Instructions on Writing and Life 198 (New York: Anchor Books/Doubleday, 1995)]
"It is a truism that the prisoner always knows more about the prison keeper than the prison keeper knows about him. But the deeper human tragedy is that the prisoner, who knows so much about the prison keeper, runs the risk of becoming like him. There may be a certain degree of 'equality' in this appropriation, but it is always self-destructive. And, ultimately, it is the prison keeper who wins because his onetime charge now generalizes his old guard's habits of mind farther into the future than the life of his former guard. This freezes the flow of human emotions into habits of mind that have already proved to be destructive. The gods of life must expect something more from the prescient prisoner. Perhaps this thing is only a refusal to impose on the future the smallnesses of mind that have been imposed on the past and on the present." [James Alan McPherson, A Region Not Home: Reflections From Exile 168 (New York: Simon & Schuster, 2000)]
Biblical teachings are often expressed in the form of parables. A web search on "parables" and "interpretation" indicates that a vast majority of websites that focus on parables deal with Biblical parables. [On Biblical parables, see generally, John Dominic Crossan, The Dark Interval: Towards a Theology of Story (Niles, Illinois: Argus Communication, 1975); Sallie McFague, Speaking in Parables: A Study in Metaphor and Theology ( Philadelphia: Fortress, 1975); Nicola See, Parables and Women's Experiences, 80 (2) Religious Education 232 (1985)]
For an excellent introduction to parables and the argument that they are of use to a philosophically sophisticated reader see: Thomas C. Oden, "Introduction," to Thomas C. Oden (ed.), Parables of Kierkegaard vii-xviii (Princeton, New Jersey: Princeton University Press, 1978).
On the use of parables in legal scholarship, see David M. Zlotnick, The Buddha's Parable and Legal Rhetoric, 58 Wash & Lee L. Rev. 957 (2001); Robert A. Burt, Constitutional Law and the Teaching of Parables, 93 Yale L.J. 455 (1984).
On the ending of "Before the Law," consider the following commentary by a 19th century, Pennsylvania lawyer, Daniel Agnew, who served on the Supreme Court of Pennsylvania:
Law! All-pervading—inscrutable energy! Who can comprehend or measure it? When darkness profound brooded over space, and all matter lay in unshapen chaos—before sun, moon, or stars had risen, or forms of loveliness had enraptured sight—law had its being—immortal, invisible, incomprehensible—its seat the bosom of Jehovah, its form the voice of God. Flowing out with his attributes, keeping pace with nature, and filling infinity, it baffles human inquiry. Man’s finite faculties stop at the threshold, and fail to solve its mystery.
[Daniel Agnew, The Spirit and Poetry of Law. An address, delivered originally in aid of the Soldiers’ relief society of Beaver, Pa., revised and delivered before the students and faculty of Mt. Union college, Ohio, October 1st, 1865, and published at their request. By the Hon. Daniel Agnew, LL.D. 3 (Philadelphia: Sherman & Co., Printers, 1866)]
The Deconstruction and Reification of Law in Franz Kafka's "Before the Law" and The Trial
Patrick J. Glen, Southern California Interdisciplinary Law Journal
Kafka: Before the Law (1996)
Luiz Costa Lima, Crossroads
Waiting Before the Law: Kafka at the Border
Henk van Houtum, Social & Legal Studies
The Law Before It Is Law: Franz Kafka on the (Im)possibility of Law’s Self-Reflection
Gunther Teubner, German Law Journal
Franz Kafka's Outsider Jurisprudence
Douglas E. Litowitz, Law and Social Inquiry
Franz Kafka, Lawrence Joseph, and the Possibilities of Jurisprudential Literature
Patrick J. Glen, Southern California Interdisciplinary Law Journal
Franz Kafa's Literature and the Law
Catherine Harwood, LL.M. thesis, Victoria University of Wellington [New Zealand]
Blind Men and the Elephant