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The Law before its law: Franz Kafka on the (Im)possibility of Law's Self-reflection

Published online by Cambridge University Press:  06 March 2019

Gunther Teubner

Extract

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Before the Law stands a doorkeeper. A man from the countryside comes up to the door and requests admittance to the Law. But the doorkeeper says that he can't grant him admittance now. The man thinks it over and then asks if he'll be allowed to enter later. “It's possible” says the doorkeeper, “but not now.” Since the gate to the Law stands open as always, and the doorkeeper steps aside, the man bends down to look through the gate into the interior. When the doorkeeper sees this, he laughs and says: “If you're so drawn to it, go ahead and try to enter, even though I've forbidden it. But bear this in mind: I'm powerful. And I'm only the lowest doorkeeper. From hall to hall, however, stand doorkeepers each more powerful than the one before. The mere sight of the third is more than even I can bear.” The man from the country has not anticipated such difficulties; the Law should be accessible to anyone at any time, he thinks, but as he now examines the doorkeeper in his fur coat more closely, his large, sharply pointed nose, his long, thin, blank tartar's beard, he decides he would prefer to wait until he receives permission to enter. And the doorkeeper gives him a stool and lets him sit down at the side of the door. He sits there for days and years. He asks time and again to be admitted and wearies the doorkeeper with his entreaties. The doorkeeper often conducts brief interrogations, inquiring about his home and many other matters, but he asks such questions indifferently, as great men do, and in the end he always tells him he still can't admit him. The man, who has equipped himself well for the journey, uses everything he has, no matter how valuable, to bribe the doorkeeper. And the doorkeeper accepts everything, but as he does so he says: “I'm taking this just so you won't think you've neglected something.” Over the many years, the man observes the doorkeeper almost incessantly. He forgets the other doorkeepers and this first one seems to him the only obstacle to his admittance to the Law. He curses his unhappy fate, loudly during the first years, later, as he grows older, merely grumbling to himself. He turns childish, and since he has come to know even the fleas in the doorkeeper's collar over his years of study, he asks the fleas too to help him change the doorkeeper's mind. Finally his eyes grow dim and he no longer knows whether it's really getting darker around him or if his eyes are merely deceiving him. And yet in the darkness he now sees a radiance that streams forth inextinguishably from the door of the Law. He doesn't have much longer to live now. Before he dies, everything he has experienced over the years coalesces in his mind into a single question he has never asked the doorkeeper. He motions to him, since he can no longer straighten his stiffening body. The doorkeeper hat to bend down to him, for the difference in size between them has altered greatly to the man's disadvantage. “What do you want to know now,” asks the doorkeeper, “you're insatiable.” “Everyone strives to reach the Law,” says the man, “how does it happen, then, that in all these years no one but me has requested admittance.” The doorkeeper sees that the man in nearing his end, and in order to reach his failing hearing, he roars at him: “No one else could gain admittance here, because this entrance was meant solely for you. I'm going to go and shut it now.”

Type
Articles
Information
German Law Journal , Volume 14 , Issue 2 , 01 February 2013 , pp. 405 - 422
Copyright
Copyright © 2013 by German Law Journal GbR 

References

1 Franz Kafka, The Trial 215 (1998). For critical comments I am grateful to the participants at a seminar given by Christoph Menke in Frankfurt in the summer semester 2011.Google Scholar

2 Derrida, Jacques, Before the Law, in: Derrida, Acts of Literature 186 (1992).Google Scholar

3 “Abyss” - this is how Jacques Derrida describes the disrupting effects of legal self-reflection, Jacques Derrida, Force of Law: The Mystical Foundation of Authority, 11 Card. L. Rev. 919, at 993 (1990).Google Scholar

4 Giorgio Agamben, in: Clemens et al. (eds.), The work of GIORGIO Agamben 13 (2008). identifies the “man from the country” of the parable with Josef K., the protagonist of The Trial‥ Google Scholar

5 Rudolf Wiethölter, Ist unserem Recht der Process zu machen? in: Honneth et al. (ed.), Zwischenbetrachtungen: Im Process der Aufklärung. Jürgen Habermas zum 60. Geburtstag, (our law is to make the process? In: Honneth et al. (ed.), Interim considerations: In the process of enlightenment. Jürgen Habermas on the 60th Birthday) 794 (1989).Google Scholar

6 For the paradoxes of self-reference which emerge in legal self-reflection, see Niklas Luhmann, Law as a Social System 459–463 (2004).Google Scholar

7 Concerning the madness of the Law, careful diagnoses are to be found in Rainer Maria Kiesow, Das Alphabet des Rechts (The Alphabet of Law) (2004).Google Scholar

8 Kafka, , supra note 1 at 215.Google Scholar

9 Id. at 223.Google Scholar

10 Id‥ Google Scholar

11 Reza Banakar, In Search of Heimat: A Note on Franz Kafka's Concept of Law, 22 Law & Literature 463, 467 (2010); Stanley Corngold ed., Franz Kafka: The Office Writings IX (2009).Google Scholar

12 The German Free Law Movement was a school of thought at the beginning of the 20th century which had also considerable influence on the American legal realism. It stressed the role of intuitive judgment in court decisions, see Franz Wieacker, A History of Private Law in Europe (1996), § 29, III 3 c.Google Scholar

13 Franz Kafka, The Shorter Stories 401 (1971). (emphasis by me).Google Scholar

14 i.e., from the perspective we have adopted, the paralysis of the self-reflection of the Law that is triggered by the foundational paradox and by the decision-making paradox of the lawGoogle Scholar

15 Derrida, supra note 2 at 214.Google Scholar

16 “Paradoxes are (it can also be formulated thus) the only form in which knowledge is unconditionally available. They take the place of the transcendental subject to which Kant and his successors had attributed a direct access to knowledge which is unconditional, a priori valid, and intrinsically self-evident.” (translation by Lewis, Alison) Niklas Luhmann, Die Religion der Gesellschaft (The religion of the society) 132 (2000).Google Scholar

17 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life 55 (1998).Google Scholar

18 Derrida, , supra note 2 at 208.Google Scholar

19 Agamben, , supra note 17 at 185.Google Scholar

20 For more detail on this subject see Gunther Teubner, Self-Subversive Justice: Contingency or Transcendence Formula of Law?, 72 Modern Law Review1 (2009).Google Scholar

21 As is well known, Kant located the power of judgment not in the sphere of pure reason, nor in the sphere of practical reason, but defined it as a means of combining the two parts of philosophy to a single whole, Immanuel Kant, Kritik der Urteilskraft (Critique of Judgment) 84 (1992).Google Scholar

22 Jacques Derrida supra note 3 at. 969m 1044. This triggered great irritation in the deconstructivist camp, Cornelia Vismann, Das Gesetz ‘DER Dekonstruktion’ (The law of ‘THE deconstruction'), 11 Rechtshistorisches J. 250–264 (1992).Google Scholar

23 Agamben, Derrida, supra note 2 at 971.Google Scholar

24 Franz Kafka, The Complete Stories 8 (1972). Google Scholar

25 Niklas Luhmann, Art as a Social System 19 (2000).Google Scholar