Notes on Kafka's "The Problem With Our Laws"

The Problem of Our Laws Franz Kafka Below, we reproduce in italicised script the text of an essay by Franz Kafka “ The Problem of Our Laws”. Between segments of the essay, we have inserted our gloss on Kafka's observation, based on a libertarian communist perspective. Our laws are unfortunately not widely known, they are the closely guarded secret of the small group of nobles who govern us. We like to believe that these old laws are scrupulously adhered to, but it remains a vexing thing to be governed by laws one does not know. I am not thinking here of various questions of interpretation and the disadvantages that stem from only a few individuals and not the population as a whole being involved in their interpretation. These disadvantages may in any case be overstated. The laws after all are so old, centuries have worked on their interpretation, even their interpretation has in a sense become codified, and while there is surely room still for interpretation, it will be quite limited. Moreover, the nobility has no reason to bend the law against us, if only because the laws were in their favour from the very beginning, the nobility being outside the law, and that is why the laws seem to have been given exclusively into their hands. There is wisdom in this disposition – who could question the wisdom of the old laws? – but it remains vexing for the rest of us. Presumably that is not to be avoided. Even these seeming laws can only be guessed at. It is a tradition that they exist and were entrusted to the nobility as a secret, but it is not more than an old – and by virtue of its age, a plausible – tradition, nor can it be more, because the character of the laws demands that their existence be a matter of secrecy. The content of individual laws is now commonly accessible, but the particular origins and class-based purposes of them is occluded. Suffice it to say that, as Nietzsche and Marx observed in their different ways, both laws and the notion of the rule of law are constructed by the powerful in their own interests, as are the moral and ethical pretexts that confer an apparently 'objective', immutable, and non-falsifiable status on them. All law is the law of contract either social, economic, or both. By whom can we assume that these laws are observed? The powerful, according to Kafka, can be viewed as being simultaneously above the law, the originator and dispenser of the law, and the embodiment of the law. These are not necessarily contradictory 'states of being. To designate the nobility as the embodiment of the law is to say that the law perfectly expresses the agenda of the powerful. This by no means imposes on them the obligation to abide by the laws that they impose on the rest of us. Indeed, the purpose of the rule of law is to impose restrictions on the powerless, so as to sustain the present inequalities. The law becomes its own language, and not only in the sense of relying on linguistic archaisms, Latinisms, the use of arcane terms, and a particular interpretation of words commonly understood to mean something different in everyday usage. Many legal circumlocutions rely on a variant of logic that is particular to the discourse of law, and since this is not easily understood by nonspecialists, in this sense could be said to conform to Kafka's observation regarding the “secret” nature of laws. If we citizens have from time immemorial closely observed the actions of our nobles, if we own books written about them by our forefathers and have in a sense taken their lessons forward; if we think we can discern in these infinitely detailed chronicles certain principles that would appear to suggest the existence of a law here or there; and if we try to govern our behaviour in accordance with these most carefully sieved and ordered conclusions – all this still remains very doubtful, perhaps nothing more than a game of logical inference, because quite possibly the laws we try to guess at don’t exist at all. There is a small body of opinion that upholds this belief and that seeks to prove that if any law exists, then its form can only possibly be: the law is what the nobility do. There is no clue in the behaviour of the powerful as it expressed between and among themselves as to what the purpose of the law might be. Their conduct with each other is not the same as their conduct towards us, although it may superficially appear so. The powerful may steal from each other and otherwise do each other down. However, there is no stronger class solidarity than that expressed by the rich and powerful when their interests are regarded as being collectively threatened by the rest of us. And while it is clear to the analytical and class-conscious observer what the purpose of the law is, this is obscured by the apparently eternal nature of the law, as if we still lived under the divine right of kings. Matters are further obfuscated by the apparent impartiality of the law, which is promoted as a universal tool that can be used in a disinterested fashion to settle disputes between opposing parties that are 'equal under the law'. The reality of existing property relations makes a mockery of this, and we should be clear that in a global society governed by the economy, the notion of property extends to the individual proletarian, whose labour power (part of their human self) is also a commodity to be disposed of. This body of opinion sees only arbitrary acts on the part of the nobility, and disdains the folk tradition, which in its opinion has brought only slight, more or less accidental benefits, and done a great deal of serious harm, since it has given the people a false sense of security towards coming events, and left them helplessly exposed. The harm is indeed undeniable, but the large majority of our people sees its cause in the insufficient weight of tradition, and believes that much more work should be done on it, and that its materials, however vast they appear to us, are still far too small, and that centuries will have to pass before it is sufficient. his view, so pessimistic where the present is concerned, only brightens up with the belief that one day a time will come when tradition and its study will reach full term, everything will have been made clear, the law will have become the property of the people, and the nobility will have disappeared. This is not said with any animus towards the nobility, not at all and not by anyone; better to hate ourselves because we are not yet able to be found worthy of the law. And that is why this on the face of it very attractive opinion, which believes in no law as such, has remained so small, because it completely accepts the nobility and its right to exist. There is a necessary self-contradiction here: a party that would reject the nobility as well as belief in the laws would straightaway have the entire population behind it, but such a party cannot come into being, because no one dares to reject the nobility. We live on the razor’s edge. An author once put it this way: the only visible unquestionable law that has been imposed on us is the nobility, and who are we to rob ourselves of the only law we have? In distrusting the 'folk tradition', we distrust ourselves and lack the confidence we need in our own ability to develop conceptual framework to guide our efforts to overcome class society. We are weighed down by the inertia of “what is, is good”. In this case, “what is” is the existence of the powerful and their exercise of a mechanism by the immutable force of which they are not themselves governed, and which enforces our powerlessness. It might be more accurate to add that it is not only a question of “what is” but also “what has prevailed for time apparently immemorial”. The longevity of a given state of affairs (tradition )confers its own weight and 'respectability', or at least makes the act of imagining an alternative way of living more difficult. It is not only a question of having the courage of our convictions, but also of having the courage to define those convictions and believe that they form the basis of something preferable to the current misery. How often have we heard mantras to the effect of “liberal capitalist democracy may not be perfect, but it is the least bad possible arrangement”. We need to re-define what is possible and how we can realise and strengthen it. Instead of the least bad, the wager of our lives must be on the very best we can hope for. The world we construct will be based on the realisation of the individual and their full capacities within and in relation to other individuals as a series of interlocking social relations that define collective being. In the absence of property, property will not define social relations in the form of law, and consensually-agreed definitions of where I end and you begin will based on our mutual recognition as humans and not commodities. Franz Kafka’s ‘ The Problem of Our Laws ’ – ‘ Zur Frage der Gesetze ’ – was translated by Michael Hofmann. 4