"Der Proceß": Gehts da wirklich um Jura? (Engl.)

Introduction

In dealing with the question of what connections exist between law and literature, one initially observes the following points. Firstly, the law and literature are of similar nature. The producing of either law or literature involves writing, and as scripture both bear a meaning which we as recipients must interpret. As Hélène Cixous simply states: “The law is but a word ”. Secondly, literature almost without exception deals with society or the individual in relation to society and thereby always presents a view of whether this society is just, equal and lawful. The essay will discuss how Franz Kafka’s The Trial deals with justice, equality and society and in doing so try to interpret what the text says about the law in general.

Kafka was not only a writer but also a lawyer by profession. The law appears as a mysterious and superior object in many of his works; one could therefore say that Kafka himself was a connection between law and literature. Thus I will also make use of two other parables, Before the Law and The Problem of Our Laws to stress certain aspects. Yet Kafka considered himself a bad lawyer and his use of the term ‘law’ in the texts may not always mean usual law, but something rather religious or philosophical, in any case manifoldly interpretable. This can also be seen from The Trial, one of his most complex works. The nature of the trial the protagonist has to stand is only seemingly judicial. First, a short synopsis of the novel shall be given.

A synopsis of The Trial

On the morning of his thirtieth birthday Joseph K., bank employee in an unspecified city, in an unspecified year is arrested by three mysterious men without “having done anything wrong” or being charged with an offence. The men introduce themselves as the lowest grades of a high authority unknown to them in detail (the Court) which “as the Law decrees, is drawn towards the guilty .” K. claims his innocence; however, his thoughts and behaviour suggest that he, though defying the men, seemingly possesses a guilty consciousness. To K.’s surprise, albeit under arrest, he can still go work for the bank and carry out the ordinary course of his life.
Nearly every person K. associates with turns out to be part of the Court, yet is little more than an uninformed subordinate. The Court is depicted as an obscure and anonymous institution; omnipresent and progessively endless in its successive stages. One interrogation is held where K. yet slowly driven crazy by his trial attacks the very nature of the Court. However, the trial does not seem to proceed. In fact, the trial never begins, the accusation and charges are never presented, the prosecution never makes its case, and the judgment is never given. The entire trial is absent of anything K. might call ‘legal proceedings’. He is only told that it did not look good for him.
K.’s ambivalent feelings about the Court eventually escalate to an obsession. He acknowledges the trial, but does not confess a guilt. He plans to file a defence plea against a law and a charge he does not know. He refuses the promptings of a priest who advises K. by telling him the parable of a man Before the Law .
After a year has passed, K. sits in his apartment, and awaits his execution, even though no judgment has been given. Two men appear who K. leads to a place out of town, where he is executed according to an efficient and grotesque ritual. From K.’s last contemplation the reader can see that K. still does not realize how illogical the trial is.
Eventually, the reader is left not with the feeling that K. has fallen victim to an error of justice or a terror state, but rather that he has not gained any cognition of something.

The Trial as a piece on the absolute inaccessibility of the law

The Court and the Law can be quickly identified as the key elements of the novel. It will be shown what conception of justice and society, and with it the law in general, arises from the Court and the mysterious Law. Due to the nature of the novel and the dominance of these two key elements, The Trial does not provide for much discussion on equality. This discussion will therefore focus on justice and society, demonstrating that in the end, The Trial can also be understood as a piece on the absolute inaccessibility of the law. First, K.’s relationship to the Court will be analysed.

The inaccessibility of the Court
K. neither knows what he is accused of, nor on which law the charge is based. The right to a fair trial as a main principle of justice is not granted. Though K. realizes that his trial “is not a case before an ordinary court ”, he fails to uncover the identity and nature of the Court. This is due to the fact that the Court’s nature seems intangible and impenetrable. K.’s attempts to understand the Court are doomed from start; it appears as omnipresent, omnipotent and omniscient. As the painter in chapter seven points out to K.: “...Everything belongs to the Court ... and there are Law-Court offices in almost every attic .”
The intangibility of the Court is particularly demonstrated by its progressively endless hierarchy. All the representatives of the Court who K. encounters call themselves “the lowest grades ” and declare that they would not even know their superiors.
“The ranks of officials in this judiciary system mounted endlessly, so that not even adepts could survey the hierarchy as a whole .” This endlessness in the hierarchy moves the Court away from K. and makes it inaccessible as a whole. Paradoxically, it even casts doubt on the Court’s very existence. When everything is the Court, unbounded and unattainable, then at the same time nothing is the Court. K. sees this paradox when he states: “...for it is only a trial [there is only a Court] if I recognize it as such .” It is actually not clear why he does not simply ignore the Court and the trial, having realized this. Either way, K. errs when he thinks that he can – under rules of justice – decline the Court, which does not act on normal procedural law. Since the proceedings of the Court are kept secret from subordinate officials – and K. only meets such officials – the whole trial remains a mystery, both to its representatives and to K. In fact, the trial flies in the face of logic and justice. K.’s “guilt is supposed for the present ”, but no charge is presented, and no trial commences. The presumption of innocence does not exist with the obscure and anonymous Court. This scenario reminds one of the ‘enemy combatants’ currently held at Guantanamo Bay by the U.S. – according to reasonable judicial standards – a sheer mistrial. And the intransparent hierarchies, arbitrary arrests and executions imply another allusion: Readers like Adorno have interpreted The Trial as a foreboding of the nazi terror.

The hopelessness of the trial
That the Court does not recognize ordinary procedural law can also be seen from the fact that “...the proceedings only gradually merge into the verdict .” In K’s. case no verdict is ever given. At some point, he is told that there are three different possible outcomes of the trial: The definite acquittal, the ostensible acquittal and the postponement. However, it becomes clear that there has never been a case of definite acquittal nor of ostensibile acquittal; despite substantial expenditure, the result is always the postponement.
That is, “the case must be kept going all the time, although only in the small circle to which it has been artificially restricted .”
Just as the Court’s nature is endless, the only accessible verdict is the endless trial. A circular movement or death. In the novel, this is the only justice K. can experience. For the reader, who also draws parallels to past and modern terror states, this view of justice is sinister and terrifying. One would almost certainly call a society in which the courts and the laws are inaccessible unjust.
So far, this discussion has only addressed the Court in particular. Above the Court, it seems, is only the Law that is – according to the priest in chapter nine of the novel – “set beyond human judgement .” This statement provides the backdrop for the following discussion.
At this point Kafka’s parable Before the Law, which the priest tells K. comes into play. The priest introduces the parable as part of the writings that preface the Law. Again, a short summary shall be given:
Before the Law stands a doorkeeper, to whom comes a man from the country, begging for admittance to the Law. The doorkeeper refuses, but holds out the prospect that the man may be allowed in later. The door to the Law stands open as usual and the Law should surely be accessible at all times and to everyone, thinks the man. Yet he decides to wait for permission and sits down at the side of it. He waits there for his whole life; all his bribery and persuasion does not change the doorkeeper’s mind. Dying, the man asks the doorkeeper why in all these years that he waited there, though everyone strives to reach the Law, no one else has ever begged for admittance. The doorkeeper replies:
“No one but you could gain admittance through this door, since this door was intended only for you. I am now going to shut it .”

The parable alludes to some problems that accompany the law. Again, one faces a paradox, when dealing with the law.
“Everyone strives to attain the Law ”, though it turns out to be inaccessible. The doorkeeper presents the paradox of a potential but never occuring possibility to access the law by stating that admittance “is possible...but not at this moment .” Though one assumes the existence of a norm that the law shall be accessible to everyone at all times, access to the law is materially impossible. Kafka himself in The Problem of Our Laws suggests why.

The inaccessibility of the laws
Firstly, “the law is but a word” and as scripture per se inaccessible. Interpretation is used to compensate for this gap, but not always successfully. Approaching the law as an object of interpretation will at the same time always be moving away from the scripture, in a certain sense. In The Trial it says:
“The scriptures are unalterable and the comments often enough merely express the commentator’s bewilderment .”
Also, to be read, the law must remain open to interpretation and as a consequence, the law will always drift to a degree, anyway. Of course, if the law can be enforced only via its interpretation, perhaps there is no law. Perhaps interpretation is the law. There is only an interpretation, which has acquired the status of law .

Secondly, continuing interpretation distances the law from the people. As the narrator in The Problem of Our Laws puts it: “Our Laws are not generally known, they are kept secret by the small group of nobles who rule us .”
Nobles in this context refers to those making the laws and those involved in interpreting them. This phrase implies that, with regard to the laws, people are absolutely not all equal, as the knowledge of the law is restricted to a small group. The laws arise from a compromise in which the electorate has legitimised ‘the nobles’ to make them, who then in turn appoint those that interpret them. Both procedures as such distance the laws from the sovereign. The people cannot make use of something they do not know. As a consequence the narrator establishes, that “The very existence of these laws is at most a matter of presumption ”, and “perhaps these laws, that we are trying to unravel do not exist at all .” A scripture that has been far deviated from is an alienated law; an inaccessible law. The obser-vation that these laws might not exist at all, is surely the extreme of inaccessibility. Hélène Cixous has taken up the idea. She concludes with regard to Before the Law: “If the law existed, the man would have entered .”

Thirdly, the obstacles to access the law still remain high. People need to know about their right, who to address to claim it, and of course about the necessary resources. In the parable, the doorkeeper symbolizes the inaccessibility of the law, though it is important to note, that he does not bar the entrance, but only forbids the man to enter. However, the doorkeeper also says that, though he is powerful, he is only the lowest doorkeeper. He presents another hierarchy: “from hall to hall, keepers stand at every door, one more powerful than the other .” One comes to question, whether anyone has ever gained admission to the law, since the doorkeeper himself already cannot bear looking at the guard in the third hall.
Thus, as a matter of interpretation, it can be seen that in The Trial the law is not presented as a reliable and accessible instrument.

Conclusion: Justice, Equality and Society in The Trial
The Trial should surely be classified as a philosophical work, rather than one dealing exclusively with law. On a philosophical interpretation, it shows a society where the individual must acknowledge that his existence is connected with guilt and this guilt has to be sought.
In the context of law, however, the novel does portray justice and society. It seems that in the novel ordinary laws do control everyday life. Yet there is another, superior law. For the society in the The Trial, this is the law.
We have seen that this law is fundamentally incomprehensible, since it is a transcendent law – one that is set beyond human judgement. The law extends to all things, and generally everyone strives to reach it. However, the law can only be inaccessible in the end, for the reasons that have been presented. This may very well be how Kafka (as a writer and a lawyer) perceived the law to be. As reasonable standards demand that the law should be accessible to everyone at all times, one considers this to be unjust. And similarly the Court, which is as unattainable as the Law, ignores any procedural law and fundamental rights of a defendant. Therefore, the trial as well is perceived as arbitrary and unjust. A society which is governed by an unknown law and takes people to an unknown court is surely a terrifying vision. Such a society is considered unlawful. In a bizarre manner, in this society people are equal, with the exception ‘the nobles’ and the ‘superior grades’ no one has ever seen or heard of. People are equal in their yearning to attain the law, and just as equal in their ignorance of it. There is equality in their status as being capativated by the Court and being expected to find their guilt. Kafka, the personification of a connection between law and literature, it seems, presents a rather hopeless view of justice and the law in The Trial. Literature often describes the unjust conditions of a particular society. The Trial shows how the law as a superior object eludes the individiual, while it is at the same time life threateningly close