Kafka's Law:

Kafka's Law: "The Trial" and American Criminal Justice

by Robert P. Burns

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The Trial is actually closer to reality than fantasy as far as the client’s perception of the system. It’s supposed to be a fantastic allegory, but it’s reality. It’s very important that lawyers read it and understand this.” Justice Anthony Kennedy famously offered this assessment of the Kafkaesque character of the American criminal justice system in 1993. While Kafka’s vision of the “Law” in The Trial appears at first glance to be the antithesis of modern American legal practice, might the characteristics of this strange and arbitrary system allow us to identify features of our own system that show signs of becoming similarly nightmarish?
With Kafka’s Law, Robert P. Burns shows how The Trial provides an uncanny lens through which to consider flaws in the American criminal justice system today. Burns begins with the story, at once funny and grim, of Josef K., caught in the Law’s grip and then crushed by it. Laying out the features of the Law that eventually destroy K., Burns argues that the American criminal justice system has taken on many of these same features. In the overwhelming majority of contemporary cases, police interrogation is followed by a plea bargain, in which the court’s only function is to set a largely predetermined sentence for an individual already presumed guilty. Like Kafka’s nightmarish vision, much of American criminal law and procedure has become unknowable, ubiquitous, and bureaucratic. It, too, has come to rely on deception in dealing with suspects and jurors, to limit the role of defense, and to increasingly dispense justice without the protection of formal procedures. But, while Kennedy may be correct in his grim assessment, a remedy is available in the tradition of trial by jury, and Burns concludes by convincingly arguing for its return to a more central place in American criminal justice.

Product Details

ISBN-13: 9780226167503
Publisher: University of Chicago Press
Publication date: 09/02/2014
Sold by: Barnes & Noble
Format: NOOK Book
Pages: 192
File size: 260 KB

About the Author

Robert P. Burns is professor at the Northwestern University School of Law. He is the author of The Death of the American Trial.

Read an Excerpt

Kafka's Law

The Trial and American Criminal Justice

By Robert P. Burns

The University of Chicago Press

Copyright © 2014 The University of Chicago
All rights reserved.
ISBN: 978-0-226-16750-3


A Reading of The Trial

The great epiphanic work actually can put us in contact with the sources it taps. It can realize the contact. The philosopher or critic tinkers around and shapes images through which he or another might one day do so. The artist is like the race-car driver, and we are the mechanics in the pit; except in this case, the mechanics usually have four thumbs, and they have only a hazy grasp of the wiring, much less than the drivers have.... [W]e delude ourselves if we think that philosophical or critical language for these matters is somehow more hard-edged and more free from personal index than that of poets or novelists.

—Charles Taylor

Art may not have the power to change the course of history, but it can provide a perspective on historical events that needs to be heard, even if it is seldom heeded.... After all the temporary influences that once directed the course of history have vanished, great art survives and continues to speak to each generation.—Dave Brubek


Legal themes pervade Kafka's writing. He himself was a lawyer, working for a short time in civil and criminal litigation and for a longer time as a claims adjudicator and what we might call a "risk-manager" in a state-controlled disability insurance company. Kafka's protagonist, Josef K., protests, much as we might, that he "lived in a state governed by law [and] ... all statutes were in force." Josef K.'s complacent belief does not, of course, prevent him from descending into a legal nightmare. My argument is that The Trial represents a critique of and a warning about features, tendencies, and latent dangers of the modern legal world, that those dangers are becoming more threatening for us, and that Kafka's vision illuminates dangers that lurk in any large modern legal system, including ours, as Justice Kennedy intimated. And, as the quote from Charles Taylor recounted above suggests, before we theorize about the legal world, it is wise to spend some time with the artists.

As I will explain at greater length below, modern people experience their world on different levels. As Winton Marsalis put it, explaining a distinctively modern American form of music, "Everything is always going on, all of the time." Kafka represents all of these levels of experience in his novel. This leads him to write a deliberately uninterpretable parable, in the sense that there exists no single account, distinct from the story itself, which can adequately capture the conflicting perspectives and experiences embedded in the tale, and which most fairly reveals our actual concrete experience of the world. The novel is thus impervious to any one "systematic interpretation":

For what Kafka has done as a writer is to fuse into a unique literary style all the discrete elements of modern experience[,] ... elements which in our daily life are fragmented and incoherent, although never wholly absent. In The Trial Kafka welds into a continuous associative chain the daily bureaucratic routine of Josef K.; the stylizations of a court of law; and the primitive, almost superstitious level of existence at which humanity, fearing the chaotic freedom of its own consciousness, generated the notion of Law in the first place.

Much like the contemporary American trial at its best, The Trial seeks to show what cannot otherwise be said and is designed to prevent reductionist reinterpretations. We come away from the novel with an understanding that cannot be reformulated in more theoretical language. And so it is imperative to begin with an account of the story itself.

The title of Kafka's masterpiece is Der Process. Though I shall follow convention here, "The Trial" is in many ways a misleading translation. As Miriam Damaska explains, continental procedure does not have an institution that directly parallels an American trial. The latter is a relatively compressed and plenary event, with only rare interlocutory interventions by higher courts, at the end of which a judgment is entered. In continental procedure, there are no such sharp discontinuities. The appellate court frequently intervenes in the proceedings in the trial court. There are seldom temporally discrete trials. Rather, the "process," which is tightly controlled by the examining magistrate, continues on as a kind of investigation, punctuated by hearings, until the magistrate thinks he has enough to decide the case. Kafka exaggerates these features of continental procedure for effect. His "process" is relatively "informal" but moves relentlessly, like a very fast-flowing glacier. (It's over in exactly one year, from K.'s arrest to his execution ... or murder.) In a key scene late in the book, a priest, who turns out to be a prison chaplain and apologist for the law, tells K., "The judgment is simply delivered at some point; the proceedings gradually merge into the judgment" (213). K.'s lawyer tells another anxious client that "in some cases the final judgment comes unexpectedly from some chance person at some random moment" (197). Further, much of the dialogue in the novel makes more sense if the American reader simply substitutes "process" for "trial," since the latter term cannot but carry its local associations.

The Plot of The Trial

JOSEF K.'S ARREST AND INITIAL INTERROGATION. The Trial opens with a scene that is at the same time ominous and ridiculous. Famously, the first sentence reads, "Someone must have slandered Josef K., for one morning, without having done anything wrong, he was arrested" (1). Upon waking, K. notices that he is being observed through the window by an old lady who lives across the way, who is later joined by others, just staring at him. K. is "on stage" right from the beginning, a central theme of the book. The "officials" throughout the book (K. himself turns out to be an official, a role player, in the bank where he works) are exhausted by the roles they play. "The traditional topos of the world as a stage is taken literally by Kafka.... The reader is simultaneously in the audience and in the mind of the principal actor." Two "guards" enter Josef K.'s bedroom to "arrest" him. K. realizes too late that by addressing the first guard, "he had, in a sense, acknowledged the stranger's right to oversee his actions" (4). This inability to act, this inclination to "go with the flow," to move things along in the direction set by outside forces is another central theme of the book. It applies both on the psychological and the legal levels. The guards' names are Willem and Franz, echoing the names of the German monarchs (of Prussia and Austria-Hungary) who were, as Kafka wrote The Trial, in the process of plunging Europe into the unimaginable nightmare of the First World War, just as the guards begin K.'s personal nightmare. (They soon receive a whipping [in a closet at Josef K.'s bank!] after Josef K. complains about their conduct, just as the most powerful Eastern European czars, emperors, and kaisers were soon to be ignominiously removed from office.) Again, the account is both threatening and ridiculous: when Kafka read the first chapter of his book to his friends, he was laughing so hard that he had to stop.

The guards order him to stay in his room and refuse to tell him why he is being held. They seem a foolish and corrupt duo: they take an interest in K.'s nightshirt and, implying that he will actually be in custody, offer to take care of all his undergarments to prevent them from pilfering by the venal prison bureaucracy. Having eaten K.'s breakfast themselves, they ask for money to buy him a small breakfast at the "filthy all-night café" nearby. K. is at a loss to understand what is happening:

What sort of men were they? What were they talking about? What office did they represent? After all, K. lived in a state governed by law, there was universal peace, all statutes were in force; who dared assault him in his own lodgings?

He is half-tempted to consider it a thirtieth birthday joke, but thought that dangerous: "if this was a farce, he was going to play along" (7). K. looks for and eventually finds his birth certificate (though initially can only find his bicycle license!), as proof of his "identity." (Again, the suggestion is that K.'s identity is exhausted by his place in the bureaucratic institutions of the empire.) The guards are dismissive and claim they are lowly employees whose only strength is their "knowledge" that the higher authorities never err. The law is, after all, attracted by guilt and "informs itself" about the guilty. To K.'s claim that this "Law" exists only in their minds, they confidently and threateningly retort, "You will feel it eventually." In a parody of the maxim, "Ignorance of the law is no excuse," they dismiss K.'s claims of innocence: after all, if he doesn't know the law, they reason, how can he be sure of his innocence! (And so here another theme is begun. Because we are in some ultimate sense fallen or sinful, and so "guilty," if there is no knowable law, we can be convinced that we have violated that unknowable law and our experienced "guilt" exploited against us.)

K. thought of just walking out, but was concerned that they might grab him and "once subdued he would lose any degree of superiority I might still have over them. Therefore he preferred the safety of whatever solution would surely arise in the natural course of things" (emphasis added). Hannah Arendt observes, in her essay honoring the twentieth anniversary of Kafka's death, that to treat legal processes as natural and so inevitable leads in only one direction, as do all natural processes, to death. Only human beings acting together politically can provide a new beginning in human affairs, a quality she calls "natality." As we will see, the law is resolute in preventing that from happening.

An inspector summons him to the next room, where a typist, Miss Burstner, lives, and the guards insist that he wear a black coat for the hearing, a demand to which he acquiesces "to speed things up." (K.'s impatient desire to quickly get to the end of things is, throughout the novel, a factor in his getting to his own end.) "You're no doubt greatly surprised by this morning's events," began the inspector. When K. thoughtlessly says, "Not greatly surprised," the inspector repeats his statement as a question, "Not greatly surprised?" (taking K.'s statement as an admission of guilt). K. then tries clumsily to extricate himself from the inspector's twisting each of his statements with another accusatory question (13). K. consoles himself with the thought that the matter must not be all that important because he "can't think of the slightest offense of which I might be accused." And he protests that he still doesn't know who is accusing him and is sure the matter can be easily cleared up. The inspector insists that K. is quite wrong and adds the truly shocking assertion: "These gentlemen and I are merely marginal figures in your affair, and in fact know almost nothing about it.... I can't report that you've been accused of anything, or more accurately, I don't know if you have. You've been arrested, that's true, but that's all I know." He then gives K. some overbearing "advice": "Think less about us and what's going to happen to you, and instead think more about yourself. And don't make such a fuss about how innocent you feel." In effect, the magistrate tells K., "there must be something you feel guilty about, not so?" and begins the steps by which the object of the "process" is forced back on his own psychological resources. (K.'s lawyer will tell him that this is precisely the goal of the process in which K. will find himself enmeshed.)

Then another vignette of verbal slapstick: when K. says he wants to call his friend the public prosecutor, the inspector tells him that it makes rather little sense to do so. K. is close to apoplectic: "What sense is there in telephoning a lawyer when I've supposedly been arrested? Fine, I won't telephone." "But do," said the inspector, "... please telephone." "No, I no longer wish to" (15). A period of silence is followed by K.'s offer to shake hands and end on a note of reconciliation, an offer that the inspector declines, while telling K. he need not despair, "You're under arrest, that's all. I was to inform you of that, I've done so, and I've noted your reaction. That's enough for today, and we can take our leave, temporarily of course." He then tells K. that this "arrest" in no way prevents him from going to work and otherwise going about his business. In a final nightmarish surprise, it turns out that three other men who had been standing in the room admiring pictures were in fact low-level clerks from the bank, whose presence the inspector claims to have arranged to aid K. to return to the bank inconspicuously. K. is shocked, "and stared at the three in amazement." K. catches a cab to the bank with the three clerks, though he notes, in another dreamlike touch, that he never saw the inspector and the guards leave, "the inspector had diverted his attention from the three clerks, and now the clerks had done the same for the inspector" (19). Nightmare and paranoia join hands.

This summary doesn't begin to do justice to the details in the first scene and to the grim humor it contains. A reader often doesn't know whether to laugh or cry. It does, as we have noted, set some of the legal leitmotifs of the novel. One critic observed that the rhythm of Kafka's work is a rhythm of questions, not of assertions. Questions, never fully answered, yield other questions. Is K. as innocent as he claims, a claimed innocence that, in its absoluteness and self-certainty, evinces a kind of thoughtlessness? Is the guilt that the law is drawn to just a universal sinfulness that a decent legal regime should have nothing to do with, a conclusion close to the heart of Arendt's interpretation of the novel. What is real here, and what is a dream? (These are questions that can be asked of both K. and the law.) Does the unreality of the law mirror K.'s unreality, his lack of inwardness, in his exhaustion by his role? After all, the arrest is not really an arrest, the charges are not really charges, and the investigator doesn't seem to know what he is investigating. He "does his duty" without really knowing its purpose (17). His task is only to record K.'s reactions (16). Does K. have the ability to break out of the maddening situation into which he is thrust, and if so, how? If he is unable, is it because of who he has chosen to become or is it an unavoidable human fate? He continues to submit to the often-preposterous demands of the guards and inquiries of the inspector, preferring "the safety of whatever solution would surely arise in the natural course of things."

K.'S FIRST (AND ONLY) PUBLIC "HEARING." K. next hears by telephone that a "small inquiry" would take place on the next Sunday in a distant and unfamiliar neighborhood and that he could expect similar events regularly. K. realizes that he didn't ask the time of the hearing, but tells the bank vice president that "it's not that important" and resolves to appear at nine, the time court is usually held. K. resolves not to seek anyone's help in preparing for the hearing, keeping it all "in his head," so to speak (38). Another nightmarish touch: he is late, finds himself rushing, doesn't know the building number, and the tenements on the street, themselves teeming with urban life, are almost identical (38). He enters a building with various courtyards and staircases without knowing where the courtroom is. As he ascends the stairs, he is, in a hellish way, clawed at by angry-looking children "with the pinched faces of grown tramps." After another set of bizarre and preposterous twists and turns, K. is finally led into a "medium-sized room with two windows," crowded by people "dressed in black, in old, long, loosely-hanging formal coats," surrounded by "an elevated gallery just below the ceiling that was likewise fully occupied" (42). They appear to be some kind of jury, or at least a lay audience. Eventually, a "fat little man" addresses K., reproaching him for being an hour late. K. dismisses his own lateness, an act of assertion that is greeted by applause from people on the right half of the hall. "'These people are easily won over,'" thought K. as he contemplated how to win over those on the left side. (He believes initially, and foolishly, that he can actually be listened to, that the "other side" can hear and be heard.)

"So, said the examining magistrate," suggesting that the law had not quite so unerringly "informed itself" of the situation, "You're a house painter?" something K. indignantly denies (44), provoking riotous laughter from his allies on the right side of the audience. K. then lectures the magistrate expansively that he himself doesn't take the proceedings seriously, is immune from injury at the court's hands, and is speaking only for others who may endure what has befallen him (47). Cheered by the applause of the crowd, K. then gives a speech recounting the "public disgrace" he has been forced to endure at the hands of the corrupt guards and the "mindless arrogance" of the inspector, while maintaining, in a gesture of aloofness, that the matter has caused him only "some unpleasantness and temporary annoyance" (48). K. claims to be "completely detached from this whole affair, so I can judge it calmly," this after slamming his fist down on his table.


Excerpted from Kafka's Law by Robert P. Burns. Copyright © 2014 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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Table of Contents


Chapter 1. A Reading of The Trial
Chapter 2. Institutional Perspectives on The Trial
Chapter 3. Echoes of Kafka Today
Chapter 4. Spaces of Freedom in American Law?


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