Kafka was a lawyer by training. At the age of 25, two years after getting his law degree, he began work at the Kingdom of Bohemia’s Workers’ Accident Insurance Institute, where he devoted himself to the implementation of the law on statutory occupational insurance, adopted by Austro-Hungary in 1887—three years behind Germany and eleven years ahead of France.footnote1 Kafka specialists are divided as to whether his legal career hindered or helped his literary work. His diaries and letters offer evidence to support both views, which should not be surprising, since there is barely a single affirmation from his pen that is not immediately reconsidered from another point of view. Thus he famously wrote that his legal studies involved living on sawdust, already chewed over by thousands of mouths—but promptly added that, ‘in a certain sense’, this was exactly to his taste.footnote2 This way of turning over the cards, not stopping at the first meaning of a fact or symbol but always examining them from the reverse perspective, is the hallmark of the legal mind—or, more precisely, of the art of the trial, which is entirely governed by the rule of audi alteram partem: hear the other party.
This first rule of the art of law is known today as the adversarial principle—in French, the principe du contradictoire. It is an ambiguous term, since consideration of the opposite point of view doesn’t annul the first viewpoint but puts it to the test of truth, allowing the party defending it to rebut in turn the arguments made against it. In other words, the principle is valid only to the extent that it is at the service of the law of non-contradiction: that a thing cannot both be and not be at the same time. In the course of legal proceedings, the play of these successive ‘speaking againsts’ thus takes place on a terrain of rules that cannot themselves be contradicted and which are based in law. The parties have to submit to the same law for the trial to proceed; it is this common submission that allows them to exchange words, rather than blows.
The law—Gesetz in German, meaning that which is set down—thus gives human life its institutional foundation. When it is trodden underfoot, we sink into the depths of unreason. So it was for the high mountain bridge, the protagonist and narrator of its namesake story, when a foolish traveller, imagining he is testing the bridge’s solidity, ‘jumps hard with both feet together on the small of its back’. The bridge, put to this test, turns over to see what is happening. ‘I had not fully turned around’—the bridge itself is speaking—‘when I fell, falling to pieces, broken and impaled on the sharp rocks which until then had always looked up at me so peacefully from the raging waters.’footnote3 Where it affects the generational order that underpins the structure of the law, this ‘turning over’ produces those infanticidal parents who figure so frequently in myth and religion. According to that order, sons should bury their fathers. But here it is fathers who seek to bury their sons, projecting their own death drive onto their offspring. This type of parent is also encountered in daily life, not least in the academic world, where they don’t assassinate their descendants but condemn them to oblivion in order to affirm their own omnipotence and to escape the generational chain. Such is the case with the father of Georg Bendemann, the central character in Kafka’s story, ‘The Judgement’, when he issues his condemnation: ‘At bottom you were an innocent being, but beneath that you were a diabolical one! . . . And therefore take note: I sentence you now to death by drowning!’ Georg immediately carries out the order, going to—where else?—a bridge, whose function of carrying human life he turns into a discreet instrument for his own death.footnote4
Our institutional foundation can also be undermined in another way, when the law is not overturned but unknowable. ‘It is a torture’, Kafka wrote, ‘to be governed by laws of which one is ignorant’, for one who doesn’t know the laws is abandoned to the arbitrary reign of power and its representatives, real or supposed.footnote5 One could legitimately ask oneself if these laws really exist or whether they merely express the whim of those in office. This is the experience of totalitarian systems, whose resources Kafka’s work unveils. In a state of law, even in an empire like Austro-Hungary, it is still possible to call on the support of the law to limit the obliteration of the weak by the strong. Kafka thus dedicated his professional life to drafting legal documents to make the best possible protective use of the Austro-Hungarian law on industrial accidents. All known law that leaves itself open to interpretation is thereby a source of liberty.
Kafka extends this freedom of interpretation to his readers like a lifebuoy to keep reason afloat in the universe of his stories. Every reader can find a new meaning in them, but none can claim to exhaust their sense. This profusion is foreign to the totalitarian order, which aims to empty out the sources of interpretation, to prevent anyone from appealing to the law in order to affirm their own subjecthood. Such a regime plunges its citizens into a world of unreason, where their survival depends upon the shifting allegiances of the authorities to whom they look for protection while exposing themselves to manipulation. Kafka makes us live this plunge, while at the same time mobilizing our freedom as reader-interpreters. He gives us the poison and its antidote simultaneously, reminding us of the irreducible aspect of humanity which in each of us resists determinism.