Franz Kafka: Enemy of the Kafkaesque

It may come as little surprise that Franz Kafka--Czech author of nightmarish and darkly absurd tales about impenetrable bureaucracies, arbitrary and capricious courts, interminable proceedings, and confounding judgments--was a lawyer. Why bother writing about this writer from a century ago in a legal newspaper? Because I'll suggest Kafka has timeless lessons for lawyers and judges; his most important lesson for our purposes, in my opinion, is forever reminding us to avoid the Kafkaesque.

Kafka was raised in a middle-class Jewish family in Prague, and was educated in German (Prague, in the Kingdom of Bohemia, was part of the Austro-Hungarian Empire at the time). He never actually practiced in court, but did obtain a job with the Worker's Accident Insurance Institute for the Kingdom of Bohemia, which was an early workmen's compensation agency, part of a reformist program to address worker discontent. (Mushlin, "I Am Opposed to this Procedure": How Kafka's in the Penal Colony Illuminates the Current Debate About Solitary Confinement and Oversight of American Prisons (2015) 93 Oregon L. Rev. 571, 578, 586 n. 83.)

In that role, Kafka would inspect workplaces and investigate claims for compensation by injured workers. His work at the Worker's Accident Insurance Institute helped shape some of his later work: in investigating claims of a paper-cutting device chopping off workers' fingers at a paper firm, Kafka sketched and took notes about the offending device; he apparently relied on these sketches and notes in devising the Harrow, the torture device that writes a criminal's sentence on his body in the parable In the Penal Colony. (Mushlin, supra, at 578 n. 30; Posner, Kafka: The Writer as Lawyer (2010) 110 Colum. L. Rev. 207, 213.) Kafka wrote nearly all of his fiction during the time he worked at the Worker's Accident Insurance institute. (Posner, supra, at p. 207.) Kafka's work in the law undoubtedly helped inform his view of the potential absurdities and hopelessness of legal and bureaucratic proceedings.

Kafka's most significant legacy for our (law-related) purposes is the concept of the "Kafkaesque," a term all lawyers have likely used or heard at some point in their careers. (See, e.g., People v. Mata Aguilar (1984) 35 Cal.3d 785, 787 ["The right of a criminal defendant to an interpreter is based on the fundamental notion that no person should be subjected to a Kafkaesque trial which may result in the loss of freedom and liberty."]; Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1752-53 ["[I]t cannot be denied that it is an outrageous injustice to use the fact parents deny they have committed a horrible act as proof that they did it. That really is Kafkaesque."]; Nienhouse v. Superior Court (1996) 42 Cal.App.4th 83, 92 ["Under the People's view, the officer could testify as to the first statement, which helps the People, but not the latter, which helps the defendant. We do not believe the voters who passed Proposition 115 intended to engraft in the law this kind of Kafkaesque compartmentalization of truth."].)

"Kafkaesque" is defined by one reference guide as follows:

"Characteristic of the style, tone, and attitudes of the writings of Frank Kafka (1883-1924), and especially the kind of nightmarish atmosphere which he was capable of creating through the pervasive menace of sinister, impersonal forces, the feeling of loss of identity, the evocation of guilt and fear, and the sense of evil that permeates the twisted and 'absurd' logic of ruling powers. His novels The Trial (1925) and The Castle (1926) and the short story In the Penal Colony are particularly noteworthy for such features."

(J.A. Cuddon, Dictionary of Literary Terms & Literary Theory (1999) p. 441.) The term refers to the nightmarish atmosphere or irrationality, arbitrariness, obscurantist bureaucracy, and opacity set out in Kafka's works. Those works often describe the perspective of a visitor to strange realms, often legal or bureaucratic, that the visitor doesn't understand, realms where everyone else seems to know what is going on, but no one bothers to explain to the visitor or just assumes that he should know. In Kafka's world, the inscription above the courtroom or government-agency doors would be the same as the inscription above the gates of hell in Dante's Inferno: "Abandon all hope, ye who enter here."

The paradigmatic Kafkaesque situation is the one faced by the protagonist "Josef K." in Kafka's novel The Trial, where K. is arrested and subjected to a seemingly endless and incomprehensible trial, which takes place in bizarre settings like dingy apartment-building attics, and where the crime for which K. is on trial is never named or explained.

In his short story In the Penal Colony, the commandant in charge of the penal colony carries on a tradition of imposing punishment with a brutal system of torture, carried out on the Harrow, a massive, aging device that moves a giant stylus, which inscribes a prisoner's "sentence" on his body, cutting ever deeper until the prisoner is killed--but, ideally, not before the prisoner achieves some kind of "revelation" about the justice of the sentence being inscribed on his body. The penal-colony commandant remains slavishly devoted to the brutal process even after he has stopped receiving orders or even spare parts to repair the Harrow, because of his unquestioning obedience to tradition.

In his novel The Castle, the protagonist "K." arrives at a village subject to the jurisdiction of an obscure and impenetrable bureaucracy based in the titular castle overlooking the village. No one understands how the bureaucracy in the castle functions or what it actually does, though the bureaucrats in the castle assure the villagers that the bureaucracy is "flawless." The villagers are subject to arbitrary and contradictory edicts from the castle; the villages sheepishly comply with the castle's edicts, no matter how unreasonable or senseless those edicts are.

My suggestion is that Kafka's work depicts a negative--the Kafkaesque--as a way of illuminating the pitfalls the law should attempt to avoid. Among other things, Kafka understood that legal systems, like other living systems, tend to become more knotted and impenetrable over time. Those embedded in the system develop their own language, rituals, unspoken rules and customs--sometimes by adopting, unquestioningly, tradition; sometimes as a result of being sealed off from the outside world, like the bureaucrats ensconced in The Castle.

The legal system--the world of courts, lawyers, judges, government agencies--is often a foreign land for visitors--like K. We have our sacred traditions ("Don't invade the well!"), mispronounced magical Latin incantations ("It's leviOsa, not levioSA!"), special ritual formulae, etc. Like medieval alchemists, we often follow ancient scripts.

As lawyers love to observe, in the law a page of history is worth a volume of logic. We often do and say things because they have always been done and said that way. How often do judges try to explain what voir dire means to prospective jurors? Imagine trying to explain what replevin is to a layperson. What compels us to still use the Anglo-French term demurrer?

Our tendency to cloak simple concepts in foreign clothing is deep-rooted in our legal tradition. But reliance on legalisms, foreign terms, and formalism generally can serve to obscure:

"Formality was not only form, it was also a concept. Judges were not builders of law now, but protectors; they hid the power of the bench in a brier patch of legalism: they concealed their thought processes in jargon. This had two definite advantages. First, it provided a screen of legitimacy against attack from left and right. The judges did not decide cases, out of an exercise of free discretion; it was the law and only the law that determined results. The long list of precedents strung out in the case buttressed this fact. Second, formalism reinforced the judges' claim of sole and exclusive right to expound the law. The law of the judges took on a technical, erudite look. Everyman could not be a lawyer or judge; he was ignorant of legal science."

(Lawrence M. Friedman, A History of American Law (1973) pp. 540-41.)

An updated Kafka story today might involve a judge in California intoning a lengthy string of Anglo-French and Latin phrases as a perplexed litigant looked on, like K., unsure of what legal spells were being cast. Or it might involve a scene where the judge, the prosecutor, and the defense attorney simply spewed Penal Code sections at each other as bewildered parties looked on: "Are you bringing a 1538.5?" "I don't know. But I might file a 170.6." "We have some 1101 issues we need to discuss." "And we need to talk about amending to add a 667(a)." "That's all 352."

There are obviously reasons areas like the law develop their own jargon and lingo: sometimes it's efficiency or ease of reference; sometimes, it's a way of signaling membership in a certain professional community. (Brown et al., Compensatory conspicuous communication: Low status increases jargon use (Nov. 2020) Organizational Behavior and Human Decision Processes, pp. 274-90.) But it also may be a way to cloak insecurity or a lack of confidence in one's own authority or one's actions. (Id. [noting that jargon, acronyms, and legalese are used by individuals unsure of their status or authority as a way to try to signal competence and authority].) The opacity of legalese can act as a screen. (Friedman, supra, at pp. 540-41.) If a decision or action is sound, it should be capable of a clear, simple explanation in everyday language. What overuse of legalese, foreign terms, acronyms, code sections, etc. can do is erect a forbidding wall: the effect is to say, "Members only. Keep out. You wouldn't get it, anyway."

Now, it's easy enough and maybe banal to say that, as lawyers and judges, we should avoid legalese, explain things in clear, simple language, give clear reasons for why we do what we do, etc. Of course everyone would like to be clear, explain their decisions in simple, readily understood terms. But given the nature of legal decision-making, that's not always possible: we must struggle with statutory language, regulations, municipal codes, local rules, precedent, and, yes, received terms of art, which are often in Anglo-French or Latin--stare decisis et non quieta movere, if you will. We have procedures and rituals that are embedded in our system. The law is, ultimately, a deeply tradition-bound (not to say hidebound) enterprise.

But perhaps Kafka can help us by reminding us not to be Kafkaesque: to be aware of our tendencies toward in-group obfuscatory language, our love of acronyms and code sections, our sometimes reflexive devotion to custom and tradition, to think of how what seems natural and taken-for-granted to those of us who reside in the legal world may be strange and baffling to temporary visitors to that world--visitors for whom this entire legal world has been erected in the first place. That is, Kafka helps us consider our particular world from the outside; in doing so, his work helps us reflect on why we say and do the things we do. Ultimately, in my opinion, Kafka's work is a spur to remind us to retain our humanity and common sense, despite the gowns, ceremony, pomp, ritual, and, yes, bizarre incantations sometimes unavoidable in our work.