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An Open and Shut Case: Not Publishing Kafka

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An Open and Shut Case: Not Publishing Kafka

  1. Kafka The Trial Notes Der Process, later as Der Prozess Kafka himself always used the spelling Process; Max Brod, and later other publishers, changed it. See Faksimile Edition and the discussion at de:Diskussion:Franz Kafka/Archiv#Prozeß vs. Proceß and de:Diskussion:Der Process#Schreibweise und Artikelname.

Czech novelist Milan Kundera, Testaments Betrayed Harper Perennial (August 2, 1996) Another alleged "testament betrayed" involves Max Brod, Kafka's friend and literary executor, accused here of promoting an image of Kafka as saintly martyr. Because of Brod, Kundera argues, Kafka's works tend to be read either as autobiographical or as religious allegories instead of as "the real world transformed by an immense imagination." First serial to the New York Review of Books.

Have you noticed I almost sound like a lawyer? 151
The rules for painting the various levels of officials are so numerous, so varied, and above all so secret, that they simply aren’t known beyond certain families. There in that drawer, for example, I have my father’s notes, which I show to no one. But only someone who knows them s equipped to paint the judges. Nevertheless, even if I were to lose them, I still carry so many rules in my head that no one could ever dispute my right to the post. 151

The final verdicts are not published, not even the judges have access to them; thus only legends remain about ancient court cases. These tell of actual acquittals, of course, even in a majority of cases; you can believe them, but they can’t e proved true. Nevertheless they shouldn’t be entirely ignored; they surely contain a certain degree of truth, and they are very beautiful; I myself have painted a few pictures based on legends. 154

I assume these legends can’t be cited in court?” The painter laughed. “No, they can’t.” 154

Passage on the cases being filed away, not even the judges can read them, the cases become legends and may not be cite in court, 111, 115

He had a list of those trials right here in his drawer—with this he tapped some compartment or other in his desk—unfortunately he couldn’t show him [K.] the documents, since they were officially secret. 112-13.
He had set to work immediately, and the first petition was already nearly finished. It was very important, for the first impression made by the defense often influenced the whole course of the proceedings. Unfortunately, and he [the lawyer] felt he must point this out to K., on some occasions initial petitions were not even read by the court. They were simply put in the file with a note that for the time being the hearings and surveillance of the accused were much more important than anything put n writing. If the petitioner pressed the issue, it was added that once all the evidence had been collected, and prior to the verdict, this petition would be considered as well, together wit all other documents of course. Unfortunately that wasn’t true either in most cases; the first petition was generally misplaced or completely lost, and even if it was retained to the very end, the lawyer had only head this by way of rumor of course, it was scarcely even glanced at. All that was regrettable, but not entirely without justification; K must not overlook the fact that the proceedings are not public, they can be made public if the court considers it necessary, bu the law does not insist upon it. As a result, the court records, and above all the writ of indictment, are not available to the accused and his defense lawyers, so that in general it’s not known, or not known precisely, what the first petition should be directed against, and for that reason it can only be by chance that it contains something of importance to the case. 113

For in general the proceedings are kept secret not only from the public but from the accused as well. Only insofar as possible of course, but to a very large extent it does prove possible. For even the accused has no access to the court records, and it’s very difficult to ascertain during the interrogations which documents are involved, particularly for the defendant, who after all is timid and disconcerted, and disconcerted, and distracted by all sorts of cares. 115

In fact in earlier days there were even cases of stolen files 115
The gradations and ranks of the court are infinite, extending beyond the ken even of initiates. 118

Then one day you come home one day to find on our desk all the many petitions you submitted so diligently and with such great hopes in he case; they’ve been returned; since they can’t be transferred to the new stage of the trial, they’re worthless scarps of paper. But that doesn’t mean the trial has been lost . . . 121life

The portrait painter’s explanations of K’s two options, apparent acquittal and protraction. Both prevent conviction, but not arrest and not freedom, or only temporary freedom. 156-59 on apparent acquittal. Certification of innocence 156-57
In the law, which I’ve never, mind you, 153
Before the law architecture 39
Letter of intro 136

That’s the Law. 9

Not even bothering to read it 130

Doesn’t look at sheet of paper 129

Secrecy, files 112-117

Stuffing various papers under him without looking at them 89

Admittedly, the petition meant an almost endless task. One needn’t be particularly faint of heart to be easily persuaded of the impossibility of ever finishing the petition. Not because of laziness or deceit, the only things that keep the lawyer from finishing, but because of all its possible ramifications, his entire life, down to the smallest actions and events, would have to be called to mind, described, and examined from all sides. 127
Files returned to sender without ever having been read, 121

He called him ‘the Specter from the Countryside.’” 89

There may be various valid reasons why the petition isn’t finished yet,” said the merchant. “And my petitions, by the way, later proved to be entirely worthless. I even read one of them myself through the good graces of a court clerk. It was scholarly all right, but in fact contained nothing of substance. A lot of Latin for the most part, which I don’t understand, then several pages of general appeals to the court, then flattery of certain individual officials, who weren’t in fact named but could have been deduced by anyone familiar with the court, then self-praise on the lawyer’s part, combined with an almost canine servility before the court, and finally analyse of legal cases from ancient times were supposedly similar to mine. Of course these analyses, so far as I could tell, were very carefully done. 177
K. listened critically and coolly, as if he had been commissioned to mentally record everything, render an account of it at a higher level, and file a report. 195
He was no longer a client, he [Block] was the lawyer’s dog.” 195
So he ordered them [Titorelli’s paintings] taken into his office and locked them in the bottom drawer of his desk, to store them safely away from the president’s eyes for at last the next few days. 165
Dust 163
In an actual acquittal, the files relating to the case are completely discarded, they disappear totally from the proceedings, not only the charge, but the trial and even the acquittal, everything is destroyed. An apparent acquittal is handled differently. There is no further change in the files except the adding to them the certification of innocence, the acquittal, and the grounds of acquittal. Otherwise, they remain in circulation; following the law court’s normal routine they are passed on to the higher courts, come back to the lower ones, swinging back and forth with larger or smaller oscillations, longer or shorter interruptions. These paths are unpredictable. Externally it may sometimes appear that everything as been long forgotten, the file has been lost, and the acquittal is absolute. No initiate would ever believe that. No file is ever lost, and the court never forgets. Someday—quite unexpectedly—some judge or other takes a closer look at the file, realizes that the case is still active, and orders an immediate arrest. I’m assuming here that a long time has passed between the apparent acquittal and the new arrest; that’s possible, and I know of such cases; but it’s equally possible that the acquitted individual leaves the court, returns home, and find agents already there, waiting to rest him again. 158-59
First, then, apparent acquittal. If that’s what you want, I’ll write out a certification of your innocence on a sheet of paper. The text of such certification was handed down to me by my father and is totally unchallengeable. Then I’ll make the rounds of the judges. I know with the certification. Let’s say I start by submitting the certification I’m painting now, this evening, when he comes along for his sitting. I submit the certification to him that you’re innocent and act as a personal guarantor for your innocence. It’s not a mere formality, it’s a truly binding surety.”


You, however, leave the court a free man.” “So I’m free,” K. said hesitantly. “Yes,” said the painter, “but only apparently free, or more accurately, temporarily free.” 157-58
Some critics think the entire novel is written in legalese and that the characters are not differentiated. The translator Breon Mitchell thinks the voices are varied and individual.

Much of Kafka's work was unfinished, or prepared for publication posthumously by Max Brod. The novels The Castle (which stopped mid-sentence and had ambiguity on content), The Trial (chapters were unnumbered and some were incomplete) and Amerika (Kafka's original title was The Man who Disappeared) were all prepared for publication by Brod. It appears Brod took a few liberties with the manuscript (moving chapters, changing the German and cleaning up the punctuation), and thus the original German text was altered prior to publication. The editions by Brod are generally referred to as the Definitive Editions.

According to the publisher's note[46] for The Castle,[47] Malcolm Pasley was able to get most of Kafka's original handwritten work into the Oxford Bodleian Library in 1961. The text for The Trial was later acquired through auction and is stored at the German literary archives[48] at Marbach, Germany.[47]

Subsequently, Pasley headed a team (including Gerhard Neumann, Jost Schillemeit and Jürgen Born) in reconstructing the German novels and S. Fischer Verlag republished them.[49] Pasley was the editor for Das Schloß (The Castle), published in 1982, and Der Prozeß (The Trial), published in 1990. Jost Schillemeit was the editor of Der Verschollene (Amerika) published in 1983. These are all called the "Critical Editions" or the "Fischer Editions." The German critical text of these, and Kafka's other works, may be found online at The Kafka Project.[50] This site is continuously building the repository.

There is another Kafka Project based at San Diego State University, which began in 1998 as the official international search for Kafka's last writings. Consisting of 20 notebooks and 35 letters to Kafka's last companion, Dora Diamant (later, Dymant-Lask), this missing literary treasure was confiscated from her by the Gestapo in Berlin 1933. The Kafka Project's four-month search of government archives in Berlin in 1998 uncovered the confiscation order and other significant documents. In 2003, the Kafka Project discovered three original Kafka letters, written in 1923. Building on the search conducted by Max Brod and Klaus Wagenbach in the mid-1950s, the Kafka Project at SDSU has an advisory committee of international scholars and researchers, and is calling for volunteers who want to help solve a literary mystery.[51]

In 2008, academic and Kafka expert James Hawes accused scholars of suppressing details of the pornography Kafka subscribed to (published by the same man who was Kafka's own first publisher) in order to preserve his image as a quasi-saintly "outsider".[29]

In 2010 a series of boxes containing writings, letters and sketches of the author thought to be lost were opened. Among the writings was a short story by Kafka.[52

Gilman, Sander (1995). Franz Kafka, the Jewish Patient. Routledge. ISBN 9780415913911.

^ Corngold, Stanley et al., (eds.) Franz Kafka: The Office Writings. Princeton, Princeton University Press, 2009.

^ a b Banakar, Reza, "In Search of Heimat: A Note on Franz Kafka’s Concept of Law" (October 19, 2009) Law and Literature, Vol. 22, Fall 2010.

In Search of Heimat: A Note on Franz Kafka's Concept of Law
Reza Banakar

University of Westminster - School of Law

Law & Literature, Vol. 22, No. 2, Fall 2010

U. of Westminster School of Law Research Paper No. 10-15

Are Franz Kafka’s representations of law and legality figments of his imagination, or do they go beyond his obsessive probing of his neurosis to reflect issues that also engaged the social and legal theorists of his time? Does Kafka’s conception of law offer anything new in respect to law, justice, and bureaucracy that was not explored by his contemporaries or by later legal scholars? This paper uses Kafka’s office writings as a starting point for re-examining the images of law, bureaucracy, hierarchy and authority in his fiction - images which are traditionally treated as metaphors for things other than law. The paper will argue that the legal images in Kafka’s fiction are worthy of examination, not only because of their bewildering, enigmatic, bizarre, profane, and alienating effects or because of the deeper theological or existential meanings they suggest, but also as exemplifications of a particular concept of law and legality which operates paradoxically as an integral part of the human condition under modernity. To explore this point, the paper places Kafka’s conception of law in the context of his overall writing, which the paper presents as a series of representations of the modern search for a lost Heimat. Kafka’s writing, the paper argues, takes us beyond the instrumental understanding of law advanced by various schools of legal positivism and allows us to grasp law as a form of experience.

This essay first sketches the contours of the existing debate on Kafka’s literary work. Next, it argues that Kafka’s office writings, his training and daily work as a lawyer, and his career as a bureaucrat have significance for his fiction. The essay then explores the ways in which Kafka’s legal work shaped his ideas about law and legality, focusing on his unfinished novel, The Castle. Like Josef K. in The Trial, the protagonist of The Castle, known only as “K.,” is subjected to an ethical form of judgment that lies beyond the scope and jurisdiction of positive law. This ethical form of judgment, which is ordinarily regarded as the sphere of justice, delivers what in Kafka’s world appears to be an incomprehensible form of injustice. Shifting its focus to The Trial, the paper goes on to show that Kafka’s law is not only dissimilar to positive law, but also defies categorization as religious law, natural law, or customary law. The paper ends by making three interrelated points: First, Kafka’s notion of law takes us beyond a Weberian concern with the rise of bureaucracy and the rationalization of modern society. Second, Kafka’s office writings illustrate that the images of law in his fiction, which critics regard as expressing his “ambivalence about the law,” are based on his experience of working with the law as an insider and an outsider at the same time. This dual perspective allowed Kafka to observe the contradictions intrinsic to the internal and external operations of law. Third, Kafka’s work reveals the role of “non-rational” elements in the formation of modern law and legal institutions. This occurs, however, in the context of Kafka’s numerous representations of the search for Heimat, the peaceful and harmonious community to which the modern individual would like to belong and with which he or she longs to identify.
Number of Pages in PDF File: 29

Franz Kafka, Der Prozess. PT2621.A26 P752 1995

Der Prozess : Roman

Franz Kafka ; mit einem Kommentar von Heribert Kuhn.

Author: Kafka, Franz 1883-1924

Published: Frankfurt : Suhrkamp, 2000.


LIBRARY WEST General Collection

PT2621.A26 P7 2000  

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