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The Law Above the Law: Benjamin and Kafka

La loi hors la loi : Benjamin et Kafka
The law above the law: Benjamin and Kafka
Vicente Ordóñez

Résumés

L’état d’exception se place hors du système juridique en vigueur tout en émanant de ce même système juridique, auquel il ne cesse jamais d’appartenir. D’après Giorgio Agamben, les mesures exceptionnelles présentent le caractère contradictoire d’« être des mesures juridiques qui ne peuvent pas être comprises dans le domaine du droit ; l’état d’exception apparaît comme la forme légale de ce qui ne peut pas avoir de forme légale ». Le pouvoir souverain, et par conséquent l’État, tient à déterminer de manière définitive ce que sont que l’ordre et la sécurité publique, ainsi que les cas où l’on y porte atteinte, dans quelle situation il faut suspendre totalement la normativité établie et quel est le type d’ordonnancement juridique nécessaire à cet effet. Carl Schmitt ajoute que « l’autorité met en évidence le fait que, pour créer du droit, elle n’a pas besoin d’en avoir le droit ». Ces définitions renvoient aux observations de Walter Benjamin à propos de l’état d’exception comme dispositif de régulation, ainsi qu’aux réflexions de Kafka autour de la loi, ou à la situation de ceux qui se trouvent bloqués dans les camps de réfugiés.

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1Those who try to critically examine the law and the normative systems that challenge their symbolic authority may find, by virtue of a dialectical displacement, that it is the law itself that stands beyond its borders, remaining itself as law: just as there is a point in the curve in which the sense of its curvature changes, the law has the capacity to turn around, suspend the current legal order and impose an arbitrary and exceptional metanormative order.

2In the western legal systems of common law this figure is called ‘state of exception’. First of all, I am going to analyze Walter Benjamin’s concept of ‘state of exception’ from a historical-philosophical perspective. Why precisely Benjamin? Because Benjamin studies the profound meaning of ‘state of exception’ in several of his works, although especially in the last essay he was able to write and complete: the eighteen theses and two fragments contained in On the Concept of History. Furthermore, in this oracular work Benjamin anticipates topics and problems that are inextricably linked with topics and problems of our most immediate reality. That is why I will try to connect his reflections with at least one event that is currently happening: the exceptional situation that, in normative terms, is lived in the refugee camps.

3Nevertheless, it is in literature and, specifically, in Kafka’s work, where some of the most radical reflections on the metanormative character of the law can be found. I use the adjective ‘radical’ because in The Process and in The Castle, but also in the short stories "In the Penal Colony", "The Problem of Our Laws" or "The Great Wall of China", as well as in some passages of his diaries and reports for the Workers’ Accident Insurance Company for the Kingdom of Bohemia, one glimpses the root, origin and foundation of that exceptional disposal by which legality goes beyond its boundaries. To examine, therefore, Kafka’s thinking regarding the rule of law, that self-replicating organism of customary norms, rules, laws and precepts, codes, provisions, exemptions, articles or constitutions, will be the second movement of a work in which I propose to critically think the internal structure of normativity.

1. State of emergency: Walter Benjamin

4Like an underwater cable connecting vast areas that have been temporarily cut off, ‘state of emergency’ permeates Walter Benjamin’s reflections, from Origin of the German Trauerspiel, a work submitted in 1925 to the University of Frankfurt in order to get his Habilitation, to the last of his great texts, On the Concept of History, written shortly before his death on the Franco-Spanish border in September 1940. These reflections are built upon a fragment of the aforementioned essay, perhaps the most complete synthesis of his thought. In thesis number VIII Benjamin writes:

  • 1 W. Benjamin, Über den Begriff der Geschichte, in Werke und Nachlaß: Kritische Ausgabe. Berlin: Suhr (...)

the tradition of the oppressed teaches us that the "state of emergency" in which we live is not the exception but the rule. We must attain to a conception of history that accords with this insight. Then we will clearly see that it is our task to bring about a real state of emergency, and this will improve our position in the struggle against fascism1.

5This paragraph is like a funnel, squeezing the central ideas of Benjamin’s philosophy of history — a discipline he uses to interpret the present time not as something neutral and objective, but as the result of a set of forces that tend towards the realization of an uncertain future, catastrophic or triumphant depending on whether the action of the actors intervening in a particular historical moment is capable of blowing up the power structures projected by the ruling class.

6Why did Benjamin state that the tradition of the oppressed warns us that the state of exception is the rule? Because he thought Europe’s turmoil in the interwar period was perceived to be normal? Benjamin showed that the state of emergency is all-time winners’ rule — the Reichstag arson attack and von Hindenburg’s emergency decree to suspend civil liberties and pursue German communists is the visible tip of an iceberg deeply immersed in the icy waters of history.

  • 2 In Dora Benjamin's typographical manuscript, Benjamin uses the term Unterlegenen, the vanquished, t (...)
  • 3 We can only trust, he writes ironically in 1929, in the IG Farben and the peaceful perfection of th (...)
  • 4 W. Benjamin, Das Kunstwerk im Zeitalter seiner technischen Reproduzierbarkeit (Erste Fassung). GS I (...)
  • 5 W. Benjamin, "Zur Kritik der Gewalt", en GS II / 1, Frankfurt: Suhrkamp, 1991, p. 203. It seems as (...)

7The oppressed or Unterdrückten2, pushed towards the bottomless depths of the abyss, constitute, like those anonymous multitudes of Juan Genovés, the porous substance that shapes the empty time of history’s victors. It is they, the oppressed in an absolute sense, defeated again and again by barbarism and unreason, who live in a state of permanent exception. But who were the winners when Benjamin writes his theses? First of all, the alliance of the powerful Central European industry with fascists regimes3. Indeed, the process of technical industrialization, which reaches its peak with the mass production of corpses in the gas chambers and death camps, not only preserves property relations, but does so through brute force (die offene Gewalt)4. Second, legal power: the monopoly of administrated violence (die verwaltetete Gewalt) is in the hands of the Nobles of the Robe that dominate, master and control outside and beyond the law5.

  • 6 W. Benjamin, Einbahnstraße, in GS IV, 1. Frankfurt: Suhrkamp, 1991, p. 122.

8This system of legal relations left the oppressed ones orphaned. Why? Because the left, in fighting fascism from a progressive position, had bitten the bullet: neither social democracy nor state communism understood that in order to stop the advance of the NSDAP "the lighted fuse must be cut"6. For Benjamin there was no doubt: fascism is not the atavistic residue of an archaic society mystified and mythicized, but the last stage of progress. Paradoxically, the ideology of progress is retro-progressive: the alliance between industry and legal doctrine causes an unparalleled social, juridical and moral setback. What to do in a situation in which any hint of organization of the oppressed seemed doomed to failure?

a) Real ‘state of emergency’

  • 7 W. Benjamin – G. Scholem, Briefwechsel. Frankfurt: Suhrkamp, 1980, p. 316.

9For Benjamin, the most urgent task was a twofold one. In the first place, reality might not be falsified, that is, the oppressed ones should be aware of the military capacity of fascism. This would have helped them to understand the problems related to their historical development as a class. In the second place, thus, the oppressed might know their place in history in order to recognize the hysteria that dominated everything. This would be the second unavoidable task that Benjamin proposed as a means to fight in better conditions against "the forces of darkness"7 and to establish der wirkliche Ausnahmezustand — the real state of emergency —. Now, what are the differences, if any, between the state of emergency in which the oppressed were stuck in time and the ‘real’ state of emergency? Is it possible to speak, not of a state, but of states of emergency?

  • 8 See for instance A. Carrino, "Carl Schmitt and European Juridical Science", in The Challenge of Car (...)

10The concept of ‘state of emergency’ was coined by the Crown Jurist of the Third Reich, Carl Schmitt, in his work Political Theology (1922): "Souverän ist, wer über den Ausnahmezustand entscheidet". Many puzzles of Schmitt interpretation, including the so-called "Carl Schmitt Question"8, take this claim as a starting axiom: sovereign is he or she who decides any kind of severe economic or political disturbance that requires the application of extraordinary measures. A state of emergency need not have an existing order as a reference point because the violation of a law may be excused by necessity (necessitas non habet legem). Necessity exempts from law and justify individuals in doing, as a means to obtain their goals, what is forbidden thereby.

  • 9 Jean Bodin, Les six livres de la République. Paris : Librairie générale française, 1993, p. 160 : " (...)
  • 10 C. Schmitt, Politische Theologie. Vier Kapitel zur Lehre von der Souveränität. Berlín: Duncker & Hu (...)
  • 11 Benjamin made clear the influence that Schmitt's concept of 'state of emergency' has had on his ref (...)

11Much of what Schmitt has written about sovereignty is already to be found in Jean Bodin. Bodin conceived the concept of sovereignty as a supreme, perpetual, and indivisible power, marked by the ability to make law without the consent of any other9. The sovereign was the sole judge of divine and natural law; he or she could tax without consent in emergencies; and could decide that contracts were no longer operative when, in his or her view, a subject had ceased to benefit from them. In this regard, Schmitt highlighted that the exception reveals the essence of the state’s authority: "authority proves that to produce law it need not be based on law"10. When Benjamin, who studied Schmitt’s work in depth11, asserts that the state of emergency is a precept (Regel) among the oppressed, did he refer to a legal system that, emptied of all legal content, is imposed on civil society through force? Probably. The Decree of the Reich President for the Protection of the People and the State, extended indefinitely in the Enabling Act of 1933, represented the synthesis of that state of exception to which I refer in the first place: civil liberties were suspended by virtue of an arbitrary law that the sovereign, represented in the person of the chancellor, applied to his whim. The constitution, therefore, was submitted to a process of normative epoché but, in order not to lead to pure chaos, an arbitrary legality was implemented to allow the authorities to act according the desires of the Führer.

  • 12 K. Marx, A Contribution to the Critique of Political Economy. Moscow: Progress Publishers, 1977. Av (...)
  • 13 K. Korch, Karl Marx. New York: Russell & Russell, III, 3. Available at https://www.marxists.org/arc (...)
  • 14 G. Lukács, History and Class Consciousness: Studies in Marxist Dialectics (trans. R. Livingstone). (...)

12The ‘real’ state of emergency has a very different meaning. First, the historical subject is not represented by the sovereign, but by his antagonist. It is, in fact, the oppressed class in struggle who must rise up in order to subvert status quo. Korsch and Lukács critical sieve is looming in Benjamin’s Marxist interpretation. For Marx, the time of social revolution was the result of the conflict between the material productive forces of society and the existing relations of production within the framework of which they have operated hitherto12. Social conflict includes "the violent overthrow of the existing order of society by the oppressed class"13. The revolutionary self-liberation of the working class through its conscious action necessarily entailed a transformation of the economic-social processes of life. Previously, however, the productive forces might be aware that in their struggle they fight not only against an external enemy, but above all against the devastating effects that the capitalist system of production has on their own class consciousness. That is why the proletariat, says Lukács, "only perfects itself by annihilating and transcending itself, by creating the classless society through the successful conclusion of its own class struggle"14.

  • 15 W. Benjamin, Das Passagen-Werk, GS V, 1. Frankfurt: Suhrkamp, p. 460: "Für den materialistischen Di (...)
  • 16 ibid., p. 573. As Enzo Traverso pointed out, the restitution to the original condition must, moreov (...)
  • 17 M. Löwy, Walter Benjamin: aviso de incendio. Una lectura de las tesis Sobre el concepto de historia (...)

13Benjamin had these ideas in mind when he developed his notion of the ‘real state of emergency’. However, his reflections — due to the precise historical moment in which he writes his theses — did in fact differ from theirs. Just as the pendulum that measured the oscillations of the old seismographs has ceased to be useful, Benjamin suspects that the political arsenal of the left would need a strong dialectical counterweight. It was urgent, on the one hand, to open up the semantic field of the subject of social transformation: it was that plural subject, indefinite and without qualities, it was the oppressed ones who had to become a class for themselves. And who belonged to the oppressed? Not only the proletariat15, but those who have been systematically stigmatized, the nameless and faceless people, the human waste which history is made of: from the Jewish people through the Spartacist League, right up to Blanqui, the martyrs of the Paris Commune or those who integrated the Zapatista uprising of the 1990s. On the other hand, Benjamin considered that the total subversion understood as a radical transformation of the economic-social process of life was not enough: a "historical apocatastasis"16 is needed, a restoration of all things by whose logic the entire past is to be brought into the present. As Michael Löwy pointed out, this utopian state of emergency "is prefigured in all rebellions and uprisings that interrupt, even momentarily, the triumphal courtship of the powerful"17. Is there still a need, then, for a theory of history that allows the oppressed to subvert the status quo and unmask different ways of domination?

b) Refugee camps

14By working on Benjamin’s state of emergency one could not help but wonder whether there is a direct cause-and-effect relationship between the oppressed ones and those who are living in over-crowded refugee camps around the world. Do we have a new incarnation of the oppressed in the refugees? Does international law impose a kind of state of emergency in the camps? Does the project of ‘regional disembarkation platforms’ outside the European Union proposed by European Council President Donald Tusk reproduce the authoritarian policies implemented less than a century ago? After the tortuous experience of the short twentieth century, on the margins of the continent spreads fascist concentrationary regime.

  • 18 However, the number of displaced people by violence is far higher: 63 million. Cfr. A. Betts y P. C (...)

15The situation at the camps is particularly worrying and requires urgent attention. Global refugee numbers are at their highest: 22 million people crammed into camps where they are subjected to inhuman and unacceptable living conditions for survival18. This ghost population is deprived of fundamental rights such as the right to adequate housing, the right to work or freedom of residence and movement. Indeed, in refugee camps, managed by sovereign humanitarian organizations (mainly UNHCR, the controversial UN agency in charge of protecting refugees and those displaced by conflict, natural disasters and so on), a complex regulatory system has been implemented: the administration of the refugees depends on a normative regulation that in its legal form adopts dangerous exceptions. See for instance art. 9 of the 1951 Refugee Convention:

  • 19 See also articles 17, 26, 32 or 33 of the Geneva Convention and article VII of the 1967 Protocol re (...)

nothing in this Convention shall prevent a Contracting State, in time of war or other grave and exceptional circumstances, from taking provisionally measures which it considers to be essential to the national security in the case of a particular person, pending a determination by the Contracting State that that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interests of national security (emphasis added)19.

16As is the case with Benjamin’s state of emergency, the legal dispossession of the refugees is based on an international legal regime that include metanormative clauses by which the rights and freedoms may be suspended in the name of law. Plus, since international law does not represent a limit to the power exercised by humanitarian organizations, normative arbitrariness is embodied as real possibility of camps policy. It is against the hegemony of this international legal regime that, from and with Benjamin, I want to give the fire alarm.

2. Above the law: Franz Kafka

  • 20 See Isolde Schiffermüller interpretation of the Ausnahmezustand concept in the context of The Trial(...)

17The legal concept of ‘state of emergency’ is foreign to Kafka. However, in some of his writings he describes a metanormative structure that indirectly refers to Benjamin’s state of emergency20: i) as the arbitrary application of the law for their own purposes; ii) as the target of the oppressed when they try to overthrow dispossession and escape from the coercive apparatus of the law. In any case Kafka suggests, beyond Benjamin, a third hermeneutical path: iii) a formal legal system in which the law stands above itself, not because of the will of a sovereign or State, but rather of the labyrinthine depths of bureaucracy.

a) The great legal organism

  • 21 F. Kafka, Der Prozeß. Frankfurt: Fischer, 1962, I, p. 3.
  • 22 P. Casanova, Kafka en colère. París: Seuil, 2008, p. 405: "l’arrestation, dans sa forme apparemment (...)

18The first lines of The Trial are perhaps the best synthesis of the metanormativity of the law in its first sense: "jemand mußte Josef K. verleumdet haben, denn ohne daß er etwas Böses getan hätte, wurde er eines Morgens verhaftet"21. An analysis of this proposition shows the following: Joseph K., who has not committed any crime, is nevertheless arrested because a legal investigation has been initiated against him. The start of a court trial presupposes a) anonymous allegation, b) legal complaint, c) successful application to the court and d) initiation of administrative proceedings. As Pascale Casanova emphasized, this is intended to humiliate him and to damage his reputation22.

19The first thing that strikes me is Joseph K.’s innocence: he has done nothing wrong (Böse), anything that can render him liable to prosecution. Nevertheless, proceedings are subsequently instituted against him and he is arrested. Contrary to what one might suppose, the arrest is neither followed by an administrative order, nor does it carry a prison sentence, nor does it even take place in an official agency. It is exceptional: he is arrested in his home and interrogated there.

  • 23 Suetonius, The Lives of the Twelve Caesars. III, LXI: "a poet was charged with abusing Agamemnon; a (...)

20K. believes that those who have initiated judicial proceedings against him simply wanted to defame him, to deprecate and slandering him. The practice of the wilful false accusation shows justice instrumentalization and its arbitrariness, and can be traced back to the time of the ancient Rome. In imperial Rome, denunciations by informers were admitted and rewarded. According to Suetonius, at the time of Tiberius special rewards were voted for the prosecutors, the information of any person was taken, and all offences were capital. The informer, an anonymous agent, informed the magistrate of a crime by means of inscriptio23.

  • 24 E. Fernández, La Inquisición. Procesos y autos de fe en el Antiguo Régimen. Madrid: Sanz y Torres, (...)
  • 25 H. Kamen, The Spanish Inquisition: A Historical Revision. London: Yale University Press, 2014, p. 2 (...)

21It is not, however, Rome, but the inquisitorial trials of the Holy Inquisition that bear a certain resemblance to the trial against K. The inquisitorial procedure was initiated either by prosecution before the court, or ex officio by the judge. The first action taken by the inquisitors was that of appointing a delegate-commissary who thoroughly registered the domiciles of the accused and who, moreover, had the power to seize their goods and belongings. Thus, the indictment initiated the proceedings as such. It should be noted that any person could accuse another: it was enough to make the accusation before authorities taking as witness two persons who were "honest and religious"24. The denunciations were anonymous, and the defendants had no way of knowing the identities of their accusers. There is one final parallel that I want to emphasize: the entire process was undertaken with the utmost secrecy, as much for the public as for the accused —tellingly, the accused were not informed about the accusations that were levied against them25.

22Victim of anonymous allegation, K.’s summary execution after a trial in which any hint of legality is suspended reveals the existence of a transcendent and exceptional normative apparatus. Kafka refers to it as der große Gerichtsorganismus, i.e.: a comprehensive legal system make up of organs and legislative instruments with autonomous capability:

  • 26 F. Kafka, The Trial (trans. M. Mitchell). Oxford: Oxford University Press, 2009, p. 86.

the essential thing was not to attract attention, to stay calm, however much it went against the grain, to try to understand that this great legal organism remained eternally in balance, so to speak. If, of your own volition, you changed something at the place you occupied, you would be cutting the ground from under your own feet and might well fall, whilst the great organism could easily find a replacement for the minor disruption at some other part—everything was interconnected—and remained unchanged, assuming it did not, as was in fact likely, become even more self-enclosed, even more vigilant, even more severe, even more malevolent26.

23The law is, in Kafka, a certain kind of organism — an assertion that should not be understood in a strictly metaphorical sense: the law behaves as a complex biological structure that interacts with its environment, of which it is nourished, with which it is related and by which it is reproduced. Kafka emphasized through the lawyer Huld that in front of this huge organism one remains in suspense. There are only two possibilities: on the one hand, to adapt oneself to law organs and to accept things as they are; on the other hand, to establish personal relations with high officials. There is absolutely nothing else that could be done? Are submission and bribery the only two existing poles? Does not claim K. that he belongs to a free country in which everywhere was at peace and laws were decent and were upheld? Certainly. What actually happens is that K. questions the mechanism that shapes the rule of law, and the mechanism shows itself as it is, i.e., as an all-encompassing, retractable device capable of recomposing, reconfiguring and defending itself. In The Castle this idea is underlined by the county mayor:

  • 27 F. Kafka, The Castle (trans. A. Bell). Oxford: Oxford University Press, 2009, p. 63.

and now I come to a particular feature of our official mechanism. When an affair has been under consideration for a very long time, and even before assessment of it is complete, it can happen that something occurs to settle it, like a sudden flash of lightning at some unforeseeable point, and you can’t pinpoint it later. The case is thus brought to an arbitrary, if usually quite correct, conclusion. It’s as if the official mechanism could no longer stand up to the tension and the years of attrition caused by the same factor, which in itself may be slight, and has made the decision of its own accord with no need for the officials to take a hand27.

  • 28 W. Benjamin, Sobre Kafka. Textos, discusiones, apuntes. Buenos Aires: Eterna Cadencia, 2014, p. 30.

24The bureaucratic apparatus of the castle rests upon an unpredictable and arbitrary authority, coercive and partial. The most astonishing thing about it, once again, is its autonomy (aus sich selbst heraus). Also "In the Penal Colony", the officer sets in motion a singular apparatus — bed, signer and harrow — that works completely alone and acts by itself (arbeitet die Maschine noch und wirkt für sich). This kind of organized totality shows, on the one hand, that the human pieces that make up its structure must conform to its designs; on the other hand, that the problem of infinity regression in law is unsolvable: the current legality is based on a theological legality that, in turn, refers to an unfathomable prehistoric legality. This is otherwise Benjamin’s interpretation: legal authorities are "far beyond the time of the Laws of the Twelve Tables. They refer to a prehistoric world over which a first triumph was written law. And while here written law is in the books of laws, yet secretly, and based on these, the prehistoric world exercises its dominion even more unlimitedly"28. Benjamin feels the laminar structure of the law in Kafka, a law devoid of centre, without starting point that allows us to specify where the general principles of law begin and end, namely, the general normative enunciations that, despite not having been formally integrated into particular legal systems, abstractly collect the content of the law itself as a whole and consolidate the development of a hierarchical and authoritarian bureaucratic apparatus.

  • 29 I agree with Michael Löwy that the analogy between the metanormative arguments in Kafka and the 'st (...)

25Kafka is therefore suggesting that legal systems rest on an autonomous and abstract law. This conception of legality, if not identified, does approach the way in which Benjamin understands the state of permanent exception: an alienating metanormative system that underpins law’s arbitrariness and deprives, in its development, the most disadvantaged people29.

b) Dominance and submission

26The short story "Zur Frage der Gesetze" deals narratively with a certain area of the law linked to Benjamin’s ‘state of emergency’ and ‘real state of emergency’. Kafka stated that

laws are not generally known: they are kept secret by the small group of nobles who rule

  • 30 F. Kafka, "Zur Frage der Gesetze", en Nachgelassene Schriften und Fragmente II: Kritische Ausgabe. (...)

27and dominate (berherrschen) the people. It is an extremely painful thing, the narrator stressed, to be ruled by laws that one does not know. However, it is in the absolute ignorance of the law that, in Kafka’s opinion, lies nobility superiority. Unlike Hegel and Heidegger, for whom the tension between domination and servitude (Herrschaft und Knechtschaft) based on slave’s fear of the death allows the nobles’ suppression of the slaves’ autonomy, Kafka argues that the power of the nobles emanate from the interpretation and the enforcement of the law. Indeed, der Adel steht außerhalb des Gesetzes, i.e., "the nobles stand above the laws"30. Its function, Kafka suggests, is simply to design a normative punishment apparatus, assemble it and activate it: like Aristotle’s unmoved mover or prime mover, the nobles limit themselves to setting justice in motion without its movement influencing them at all.

28Just as Benjamin believed that the alliance between economic and legal power reified the oppressed, Kafka understood that the nobles rule the people through an unknown legal system that strengthened dispossession. Notwithstanding, people suspected that this normative apparatus is articulated from a set of mysterious laws (Schein-Gesetze) that can only be presupposed. According to tradition, they exist and have been entrusted to the nobles in secret and must be kept that way. Is secrecy an indication of the misleading content of the laws? To accept laws’ deception, does it mean to admit that they are based on illusion? Kafka finally reveals the enigma: codes and constitutions, laws and decrees are nothing but dead letter.

29At this point Kafka emphasized that the time will have come when the law itself will belong to the people, and the nobility will vanish (das Gesetz nun dem Volk gehört und der Adel verschwindert). Kafka’s assertion is closely linked with Benjamin’s messianic-marxist argument, namely: if and only the oppressed are able to rise up against the metanormative structure that paralyzes them, they will reach the true state of exception, i.e., a classless society in which dominance and submission will have completely disappeared. Kafka pointed out, however, that the possibility of placing the law at people’s service involved an unsolvable paradox: nobles are not only the personification of the law, they are their most visible manifestation, and therefore any attempt to respect the law and abolish nobility is doomed to failure. Therefore, Kafka momentarily opens the door of hope to the oppressed whom Benjamin summons in anguish: there is a glimpse of the possibility of altering current law and democratizing justice. However, the leaf of that door closes immediately due to the interconnection between law and nobility, two edges that are perhaps nothing more than segments of the same legal plane.

c) Bureaucratic phantasmagoria

  • 31 G. Janouch, Conversations with Kafka (trans. G. Rees). Derek Verschoyle: London, 1953, p. 71.

30A third hermeneutical possibility can be inferred from Kafka’s writings against Benjamin’s interpretation of the concept of ‘state of emergency’: neither is the sovereign the one that ensures pariahs’ dispossession, nor is it the alliance between the status quo and fascism. Kafka presents a rambling administrative system organized according to a strict distribution of spheres of competence, regulated by rules that establish an apparently rational order in which written records guarantee the truth and where detailed regulation, rigidity and strict hierarchization of functions replace the direct and vertical domination of the sovereign. Kafka, using a disturbing image, refers to it as the red tape chains’ of tormented mankind31.

  • 32 H. Kamen, op. cit., p. 270.
  • 33 F. Kafka, The Castle, p. 98.

31Whereas in The Trial, the legal provisions are transferred to a cluster of investigating judges, subordinate civil servants, heads of cabinet, justice employees, officials, ordinances and executioners who, in turn, depend on a network of articles, secret files and codes that embody the space of law, in The Castle — synthesis of the administered world to which Horkheimer points to — power, authority or the state are presented as "an enormous living organisation" (eine große lebendige Organisation) made up of gentlemen, officials, assistants, communication secretaries, clerks and messengers entangled in a bureaucratic web of protocols, official and semi-official acts, bureaux, barriers, control offices, formalities, summonses or nocturnal interrogations. In both cases, the functioning of the legal and administrative system rests on endless written work that reminds, once again, the Supreme Council of the Inquisition. Henry Kamen noted that “the outside world may have been kept uninformed, but internally the flow of information was almost impeccable. The administrative and secretarial apparatus of the tribunal took care to set down on paper even the most trifling business”32. In Kafka’s bureaucratic universe everything leaves a written imprint. "‘There’s been a lot of writing here,’ said K., looking at the files from a distance. ‘Yes, a bad habit’ (…). And the gentleman buried himself in the files and began writing"33. Kafka saw the official writing as a register that allows to define magnitudes, to compute objects and beings and to quantify infinitesimal, namely: writing equals phenomena and facts, and phenomena, therefore, acquire the ontological status of realities as long as they are filed, identified, processed. By whom? Initially by tireless officials who work around the clock. However, these officials depend, in turn, on unreachable supervising authorities (Kontrollbehörden). The mayor sums up the situation for K.: the whole bureaucratic apparatus of the castle is reduced to those authorities of which no one else knows anything.

32The dissolution of the individual in the administrative paperwork is due to the quantification and obsessive engraving of everything that happens. ‘Engrave’ or ‘count’ belong to the same semantic field as ‘write’. In most Indo-European languages ‘write’ originally means "carve, scratch, cut". Derived from Proto-Germanic writan ‘write’ means "tear, scratch". ‘Count’, from Latin computare, derives from PIE root *pau "to cut, strike, stamp." ‘Engrave’, from Proto-Germanic *grabanan ("to dig, delve"), derives from PIE root *ghrebh- (2) "to dig, to scratch, to scrape."

  • 34 ibid. p. 25 (my translation: die Gewalt der unmerklichen Einflüsse jedes Augenblicks).
  • 35 W.G. Sebald, "The Undiscovere'd Country: The Death Motif in Kafka’s Castle". Journal of European St (...)
  • 36 Maurice Blanchot wrote that in Kafka the bureaucracy does not possess a self-evident negative meani (...)

33The etymological analysis highlights "the violent influence of every passing moment"34 to which the land surveyor K. points to. Whether it is the mark left on the record when writing on its surface, or the incision with which data are recorded in a file, writing must always overcome the resistance of the object on which one makes one’s mark. This fact is the result of the will of a being who wants something to be a sign of something else. In The Castle — a nature morte which preclude any hope of regeneration, as Sebald noted35 — the will that wants something to be a sign of something else is the will of an official who interprets any human sign as a thing and therefore seeks to equate them. The equation that the official makes, however, is only possible on condition that the thing is forced to remain contained in the space of representation. The operation by which every human trait is computed and reduced to a graphic engraved on paper shows the discouraging atmosphere and the violence of the bureaucratic nightmare36.

  • 37 F. Kafka, op. cit. p. 65.
  • 38 ibid., p. 154.
  • 39 F. Kafka, "Brief an den Vater", in Nachgelassene Schriften und Fragmente II: Kritische Ausgabe. Fra (...)

34The violence of bureaucratic writing and computation thoroughness, however, give way to the "the disorganized and exorbitantly large number of files"37 because even the most irrelevant detail must be recorded: in the castle "you are always being watched"38, says Olga. The administration of the castle, like Bentham’s panoptic, scrupulously studies the lives of its subjects, produces unembraceable columns of files and extends the mesh of anonymous power to all areas of existence. The bureaucratic apparatus, as the authoritarian figure of the father, nullifies the emancipatory struggle in its unifying deployment39.

35The story "The Great Wall of China" extends the bureaucratic argument by focusing in the strong hierarchical administrative apparatus that imposes an absolute and irrational normativity. Kafka explained that the construction of the wall follows a system of building in sections. This building strategy, he added, generates confusion and anxiety among people:

  • 40 F. Kafka, "The Great Wall of China", in The Great Wall of China and Other Pieces (trans. W and E. M (...)

It is possible that these very considerations, which militated against the building of the wall at all, were not left out of account by the high command when the system of piecemeal construction was decided on. We—and here I speak in the name of many people—did not really know ourselves until we had carefully scrutinized the decrees of the high command, when we discovered that without the high command neither our book learning nor our human understanding would have sufficed for the humble tasks which we performed in the great whole. In the office of the command—where it was and who sat there no one whom I have asked knew then or knows now—in that office one may be certain that all human thoughts and desires revolved in a circle, and all human aims and fulfillments in a countercircle. And through the window the reflected splendors of divine worlds fell on the hands of the leaders as they traced their plans40.

36In this fragment some of the considerations to which I have previously drawn attention to are repeated: secret; indecipherable character of the decisions of those who have enforcement capacity; non-identifiable centre, i.e., failure to reach the office of the command due to an administrative topology based on ubiquity; transcendent and arbitrary character of bureaucracy, in this story under the sinister form of a notion of leadership (Führerschaft) that anticipates the identification between people and Führer that will take place after Kafka’s death. Perhaps resignation, only go on, losing one’s way even more (weiter gehen, weiter sich verirren), would be the only genuine possibility before the hypertrophy of a bureaucratic apparatus that submits and disciplines thanks to an administrative system with no vanishing points.

Conclusions

37Benjamin’s and Kafka’s texts are never exhausted in the interpretable. Benjamin’s philosophy and Kafka’s narrative, like the crystals that are randomly grouped together in a kaleidoscope, give rise to the formation of capricious and almost infinite figures, and each time one looks out through their brocade, one is apprehended in their multicoloured nets. At some point, their work resembles that of the poets Osip Mandelstam and Paul Celan — and not only because no interpretation could exhaust them: like their poetic work, Benjamin and Kafka’s reflections are like messages in a bottle (Flaschenpost) thrown in the hope that somewhere they will reach mainland, heading towards readers with whom their authors will no longer be able to dialogue.

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Notes

1 W. Benjamin, Über den Begriff der Geschichte, in Werke und Nachlaß: Kritische Ausgabe. Berlin: Suhrkamp, 2010, p. 97: "Die Tradition der Unterdrückten belehrt uns darüber, daß der >Ausnahmezustand<, in dem wir leben, die Regel ist. Wir müssen zu einem Begriff der Geschichte kommen, der dem entspricht. Dann wird uns als unsere Aufgabe die Herbeiführung des wirklichen Ausnahmezustands vor Augen stehen; und dadurch wird unsere Position im Kampf gegen den Faschismus sich verbessern. Dessen Chance besteht nicht zuletzt darin, daß die Gegner ihm im Namen des Fortschritts als einer historischen Norm begegnen".

2 In Dora Benjamin's typographical manuscript, Benjamin uses the term Unterlegenen, the vanquished, those who have been ground down as a result of the terrible conditions of history. In any case, both concepts belong to the same semantic field: people repeatedly torn asunder by the space of power. W. Benjamin, op. cit., p. 87.

3 We can only trust, he writes ironically in 1929, in the IG Farben and the peaceful perfection of the Reich's air force, the Luftwaffe. W. Benjamin, "Der Sürrealismus", in Literarische und ästhetische Essays. GS II, 1, Frankfurt: Suhrkamp, 1977, p. 308.

4 W. Benjamin, Das Kunstwerk im Zeitalter seiner technischen Reproduzierbarkeit (Erste Fassung). GS I, 2 Frankfurt: Suhrkamp, 1991, p. 442.

5 W. Benjamin, "Zur Kritik der Gewalt", en GS II / 1, Frankfurt: Suhrkamp, 1991, p. 203. It seems as if being inspired by Kafka. Cfr. F. Kafka, "Zur Frage der Gesetze", in Nachgelassene Schriften und Fragmente II: Kritische Ausgabe. Frankfurt: S. Fischer, 1992, p. 270.

6 W. Benjamin, Einbahnstraße, in GS IV, 1. Frankfurt: Suhrkamp, 1991, p. 122.

7 W. Benjamin – G. Scholem, Briefwechsel. Frankfurt: Suhrkamp, 1980, p. 316.

8 See for instance A. Carrino, "Carl Schmitt and European Juridical Science", in The Challenge of Carl Schmitt (ed. C. Mouffe). London: Verso, 199, p. 190.

9 Jean Bodin, Les six livres de la République. Paris : Librairie générale française, 1993, p. 160 : "la première marque du prince souverain, c'est la puissance de donner loi à tous en général, et à chacun en particulier".

10 C. Schmitt, Politische Theologie. Vier Kapitel zur Lehre von der Souveränität. Berlín: Duncker & Humbldt, 2004, p. 19: "Die Autorität beweist, daß sie, um Recht zu schaffen, nicht Recht zu haben braucht". On the concept of decision, cfr. C. Krockow, Die Entscheidung. Eine Untersuchung Über Ernst Jünger, Carl Schmitt, Martin Heidegger. Frankfurt: Campus Verlag, 1990, passim.

11 Benjamin made clear the influence that Schmitt's concept of 'state of emergency' has had on his reflections in a letter dated December 9, 1930, addressed to Schmitt: "Sie werden sehr schnell bemerken, wieviel das Buch in seiner Darstellung der Lehre von der Souveränität im 17. Jahrhundert Ihnen verdankt", i.e.: "you will very quickly recognize how much my book is indebted to you for its presentation of the doctrine of sovereignty in the seventeenth century". W. Benjamin, Gesammelte Schriften, GS I, 1. Berlin: Suhrkamp, 1974, p. 887.

12 K. Marx, A Contribution to the Critique of Political Economy. Moscow: Progress Publishers, 1977. Available at https://www.marxists.org/archive/marx/works/1859/critique-pol-economy/preface.htm

13 K. Korch, Karl Marx. New York: Russell & Russell, III, 3. Available at https://www.marxists.org/archive/korsch/1938/karl-marx/index.htm

14 G. Lukács, History and Class Consciousness: Studies in Marxist Dialectics (trans. R. Livingstone). Cambridge: MIT, 1971, p. 80.

15 W. Benjamin, Das Passagen-Werk, GS V, 1. Frankfurt: Suhrkamp, p. 460: "Für den materialistischen Dialektiker ist die Diskontinuität die regulative Idee der Tradition von den herrschenden Klassen (also in erster Linie von der Bourgeoisie), die Kontinuität die regulative Idee der Tradition von den Unterdrückten (also in erster Linie vom Proletariat) ".

16 ibid., p. 573. As Enzo Traverso pointed out, the restitution to the original condition must, moreover, "save the vanquished from oblivion". E. Traverso, La historia desgarrada. Ensayo sobre Auschwitz y los intelectuales. Barcelona: Herder, 2001, p. 72.

17 M. Löwy, Walter Benjamin: aviso de incendio. Una lectura de las tesis Sobre el concepto de historia. Buenos Aires: FCE, 2005, p. 100.

18 However, the number of displaced people by violence is far higher: 63 million. Cfr. A. Betts y P. Collier, Refuge: Transforming a Broken Refugee System. Londres: Penguin, 2017, p. 38.

19 See also articles 17, 26, 32 or 33 of the Geneva Convention and article VII of the 1967 Protocol relating to the Status of Refugees.

20 See Isolde Schiffermüller interpretation of the Ausnahmezustand concept in the context of The Trial. In I. Schiffermüller, Franz Kafkas Gesten: Studien zur Entstellung der menschlichen Sprache. Tubinga: Francke Verlag, 2011, pp. 128-133.

21 F. Kafka, Der Prozeß. Frankfurt: Fischer, 1962, I, p. 3.

22 P. Casanova, Kafka en colère. París: Seuil, 2008, p. 405: "l’arrestation, dans sa forme apparemment indécise, n’est rien d’autre que l’instauration d’une coupure entre ceux qui sont accuses et les autres. Elle n’est que le début d’un long processus qui aura pour résultat, au bout du compte, une longe humiliation".

23 Suetonius, The Lives of the Twelve Caesars. III, LXI: "a poet was charged with abusing Agamemnon; and a historian, for calling Brutus and Cassius "the last of the Romans." The two authors were immediately called to account, and their writings suppressed".

24 E. Fernández, La Inquisición. Procesos y autos de fe en el Antiguo Régimen. Madrid: Sanz y Torres, 2018, p. 54.

25 H. Kamen, The Spanish Inquisition: A Historical Revision. London: Yale University Press, 2014, p. 269.

26 F. Kafka, The Trial (trans. M. Mitchell). Oxford: Oxford University Press, 2009, p. 86.

27 F. Kafka, The Castle (trans. A. Bell). Oxford: Oxford University Press, 2009, p. 63.

28 W. Benjamin, Sobre Kafka. Textos, discusiones, apuntes. Buenos Aires: Eterna Cadencia, 2014, p. 30.

29 I agree with Michael Löwy that the analogy between the metanormative arguments in Kafka and the 'state of emergency' may blur what in Kafka is the true 'exception': "l'écrasement de l’individu par les appareils d’État, au mépris de ses droits, est la règle". M. Löwy, Franz Kafka rêveur insoumis. Paris: Stock, 2004, p. 89.

30 F. Kafka, "Zur Frage der Gesetze", en Nachgelassene Schriften und Fragmente II: Kritische Ausgabe. Frankfurt: S. Fischer, 1992, p. 270.

31 G. Janouch, Conversations with Kafka (trans. G. Rees). Derek Verschoyle: London, 1953, p. 71.

32 H. Kamen, op. cit., p. 270.

33 F. Kafka, The Castle, p. 98.

34 ibid. p. 25 (my translation: die Gewalt der unmerklichen Einflüsse jedes Augenblicks).

35 W.G. Sebald, "The Undiscovere'd Country: The Death Motif in Kafka’s Castle". Journal of European Studies, 1972, 2, 22-34, p. 23.

36 Maurice Blanchot wrote that in Kafka the bureaucracy does not possess a self-evident negative meaning: "to his friend Oskar Baum Kafka writes the following, which demands reflection: 'To judge by myself, the bureaucracy is closer to the original human nature than any other social institution' (June 1922, the time of The Castle)". M. Blanchot, De Kafka a Kafka. Mexico: FCE, 1991, 168. Probably, as José González pointed out, Kafka's perception of bureaucracy changes with time. In J.M. González García, La máquina burocrática. Afinidades electivas entre Max Weber y Kafka. Madrid: Visor, 1989, pp. 84-90. However, in Kafka's stories and writings resonates the echo of the gigantic apparatus of bureaucracy and the rational systematization of all statutes regulating life; i.e., resonates the echo of Alfred Weber. Cfr. A. Weber, "Der Beamte", in Die neue Rundschau, 21 Berlin, 1910, pp. 1321-1339.

37 F. Kafka, op. cit. p. 65.

38 ibid., p. 154.

39 F. Kafka, "Brief an den Vater", in Nachgelassene Schriften und Fragmente II: Kritische Ausgabe. Frankfurt: S. Fischer, 1992, p. 212

40 F. Kafka, "The Great Wall of China", in The Great Wall of China and Other Pieces (trans. W and E. Muir). London: Secker and Warburg, 1946, p. 86.

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Vicente Ordóñez, « The Law Above the Law: Benjamin and Kafka »TRANS- [En ligne],  | 2019, mis en ligne le 09 avril 2020, consulté le 11 août 2020. URL : http://journals.openedition.org/trans/3881; DOI: https://doi.org/10.4000/trans.3881

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Vicente Ordóñez

Docteur en philosophie, Vicente Ordoñez s’intéresse à la relation entre philosophie, esthétique et activisme politique. Il enseigne actuellement à l’Université de Valence et enseigne dans les universités Jaume I de Castellón et appartient au Centre for Applied Philosophy, Politics and Ethics [CAPPE] de l’ Université de Brighton (Royaume-Uni). Son livre El ridículo como instrumento político (2015) a reçu le Prix National de l’Essai de l’Universidad Complutense de Madrid.

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