Who Owns Kafka?

Before the Law

Kafka’s afterlives.


When Franz Kafka was dying, he left very specific instructions: “Everything I leave behind me in the way of notebooks, manuscripts, letters, my own and other people’s, sketches and so on, is to be burned unread and to the last page.” Kafka was 40 at the time of his death from tuberculosis in 1924 and not yet a famous writer. He had published only two collections of short stories, one novella, and a few scattered texts in obscure Czech literary magazines, all of it to scant notice. Most of what we now know as the Kafka oeuvre—including all three of his novels and the majority of his short fiction—was marked for obliteration.

The person charged with executing this merciless sentence was Max Brod, Kafka’s closest literary friend. Both men had been denizens of a small but lively community of largely Jewish, German-speaking Czech writers known as the Prague Circle. The pair had met as students at Charles University in Prague in 1902 and bonded immediately; they traveled together, collaborated on an unfinished novel, and influenced each other’s writing in myriad ways. “We completed each other,” Brod later remembered, “and had so much to give one another.”

Brod, in particular, felt a “fanatical veneration” for his friend’s talent and took it as his mission to combat the depressive Kafka’s extreme reluctance to publish his work. “I wrested from Kafka nearly everything he published [during his lifetime] either by persuasion or guile,” Brod recalled. “At times I stood over him like a rod, drove him and forced him…again and again by new means and new tricks…. What mattered to me was the thing itself, the helping of a friend even against the wish of the friend.” When Kafka finally did publish a book—the 1912 short-story collection Meditation—Brod was there to give it one of its few reviews, which included the following statement: “I could easily imagine someone getting hold of this book and finding his whole life altered from that moment on, and realizing he would become a new person.”

This was the dynamic, then, between Kafka and Brod: the reluctant genius and the relentless promoter. Knowing this, Kafka’s infamous instructions look a little different—not proof of a perverse drive toward self-destruction so much as a final hedge. As Benjamin Balint notes in Kafka’s Last Trial, his new history of the writer’s legacy and the endless complications it has entailed:

It was as though even in self-renunciation Kafka was beset by indecision. He left the execution to Brod, the very man who since the beginnings of their friendship felt that Kafka’s self-condemnation was several shades too harsh.

Perhaps Kafka didn’t really want his work destroyed, but wasn’t sure that he wanted it published, either. Or perhaps he wasn’t sure what he wanted; or what he wanted was not to decide.

Such half-decisions and ambivalence are a recurring motif in the story Balint tells in Kafka’s Last Trial. The actors include not only individuals like Kafka and Brod and their heirs, but nation-states and scholarly institutions, each one jockeying for position and the moral high ground, denouncing the others’ intentions and telling different stories about what is really at stake. In this saga, moments of resolution and fidelity are rare. The norm is hesitation, equivocation, and ambiguity.

Brod, of course, did not burn Kafka’s writings. Instead, he published them in a series of editions that he prepared himself, working from the often fragmentary unfinished manuscripts that Kafka left behind. He also wrote the first biography of Kafka, three separate critical studies of his work, various memoirs of their friendship, and, in 1954, a theatrical adaptation of The Castle. Though Brod continued to turn out books of his own, by the time he reached middle age, he was already seen as an adjunct to Kafka. “In the eyes of the world,” Irving Howe wrote in 1947, Brod “has become a mere figure in the Kafka myth; he has lost independent existence.”

Brod died in 1968 in Tel Aviv. He had emigrated there almost three decades earlier, in 1939, following the Nazi annexation of Czechoslovakia (and after attempting, unsuccessfully, to land a teaching job in the United States with a letter of recommendation from Thomas Mann). In Tel Aviv, he befriended Esther Hoffe, a fellow German-speaking Czech refugee. Hoffe became Brod’s secretary, but she was more than that: He called her “my creative partner, my most stringent critic, my help-mate and ally.” Hoffe didn’t receive a salary, but in return for her work, Brod bequeathed her all of the Kafka manuscripts, as well as appointing her literary executor of his own estate.

Legally, there is some question as to whether these items were Brod’s to give. Some were clearly his property, like the personal letters and the manuscripts that Kafka had given him during his lifetime. But many other items were things that Brod had seized from Kafka’s desk after his death; furthermore, insofar as he had a legal right to these documents, it was only in order to destroy them. Nevertheless, after Brod’s death, Hoffe took possession of the manuscripts, along with Brod’s papers, and stored them in safe-deposit boxes in a Tel Aviv bank as well as in her apartment (where, according to one reliable eyewitness, they were in frequent contact with her many cats).

This is where a personal matter becomes clouded by official intrigue, and the story becomes Kafkaesque, in the colloquial sense. In 1973, the state of Israel attempted to prevent Hoffe from selling several pieces of Kafka’s correspondence with Brod. The Kafka papers, they argued, were Jewish cultural assets and thus protected under the Israeli Archives Law of 1955, affecting documents and artifacts “which, irrespective of where they are found, are deemed relevant to the study of the nation’s history, its people, the state, and society.” An Israeli family-court judge ruled in favor of Hoffe, granting her the right to do as she liked with her property. When Hoffe died in 2007, at the age of 101, she left the Kafka manuscripts, along with control of the Brod estate, to her daughters, Eva and Ruth. At this point, Israel took action again, challenging the probate of her will and once more claiming that the Kafka papers were cultural assets and, thus, state property. The case dragged on for years until, in 2016, it was finally decided by Israel’s Supreme Court, which ruled that the Brod and Kafka materials were, in fact, cultural assets and must be transferred to the National Library of Israel.

Especially since the Second World War, when his works were taken as prophecies of Nazi and Soviet totalitarianism, Kafka has been read as the poet of arbitrary authority. In his works, particularly The Trial and The Castle, mysterious bureaucratic organizations reach out and crush the hopes of hapless individuals. While it is tempting to view Israel’s actions as an example of just such authoritarian overreach—and this is certainly how the Hoffes saw it—from another point of view the government’s position is reasonable. Leaving aside the issue of whether the collection belonged specifically in Israel, the state’s broader contention was that Brod’s and Kafka’s papers belonged not in private hands but in an archive—i.e., that literary artifacts have a cultural importance that exceeds their monetary value, and therefore they deserve to be public property. There was a legal rationale for this as well as a literary one: Brod had stipulated in his will that he wanted his papers placed in a “public archive in Israel or abroad.” Neither Hoffe nor her daughters followed this request, preferring to hoard the materials (Brod’s and Kafka’s alike) for themselves. This, alongside the cultural-asset argument, proved to be a key point in the state’s case: The Hoffe family had violated Brod’s wishes. Instead of entrusting his work and Kafka’s to the public, they had secreted it away and exploited it for their own financial gain.

The problem was not just that the Hoffes were selling Kafka’s papers; it was also the identity of the buyer. In 1988, Esther Hoffe put the manuscript of The Trial up for auction, where it was purchased, via an intermediary, by the German Literature Archive in Marbach for £1 million—at the time, the highest price ever paid for a modern manuscript. The archive presumably planned to buy further Kafka artifacts, if not the entire collection, from the Hoffes; it was thus named as an interested party in Israel’s suit against them.

The Marbach archive’s position in the case was a delicate one. While it had the financial resources to buy Kafka’s manuscripts and the scholarly resources to process and maintain them, there were obvious political reasons why the acquisition of an important Jewish writer’s papers by a German institution might be questioned. Israeli scholars attacked the archive in the press. “They say the papers will be safer in Germany,” the Israeli historian Otto Dov Kulka wrote in 2010. “The Germans will take very good care of them. Well, the Germans don’t have a very good history of taking care of Kafka’s things. They didn’t take good care of his sisters”—all three of whom were killed by the Nazis. Elsewhere, the issue was linked to the larger one of Israeli statehood: “[T]he struggle to keep Brod’s archive in Israel is one of the most important of the struggles over our continued existence here,” the literary scholar Nuri Pagi insisted in 2011.

The German Literature Archive “could not risk the appearance of ‘seizing’ cultural heritage from the Jewish state,” Balint notes, even as it insisted that Kafka, who wrote in German and was influenced primarily by German literature, should rightfully be considered a German author. German Kafka scholars, for their part, objected to the Israelis’ nationalist argument (although, of course, it was in their own national interest to do so). “To speak here of Israeli cultural assets seems to me absurd,” Reiner Stach, the author of a definitive three-volume Kafka biography, wrote in a German newspaper. “In Israel, there is neither a complete edition of Kafka’s works, nor a single street named after him. And if you wish to look for Brod in Hebrew, you have to go to a second-hand bookshop.”

Balint backs up Stach’s assertion: “Kafka never became part of the Israeli canon, or of the project of national revival,” he writes. “There has never been a Kafka cult in Israel, as there was in Germany, France, the United States, and elsewhere.” He ascribes this not only to the Israeli resistance to German-language literature after the Holocaust, but also to the national ideology of hardy self-sufficiency, which was in sharp contrast to Kafka’s worldview:

Concerned with the practical demands of agriculture, urban planning, and social welfare, the first generation of Israelis had no ear for either the masochistic strains in Kafka’s imagination or his sensibility of failure. Kafka’s stories somehow didn’t befit the spirit of the Israeli Jew, to whom Joshua and King David seemed closer than Joseph K. or Gregor Samsa.

Of all the knotty literary, political, historical, and legal issues involved in the Hoffe case, Balint, who is an Israeli citizen, is clearly most compelled by the question of Kafka’s Jewishness, and what bearing it may have on Israel’s attempt to claim his work as a cultural asset. That claim makes a good deal of sense in the case of Brod, who was a passionate Zionist even before he emigrated to Tel Aviv and spent the final decades of his life there.

With Kafka, however, the evidence for an elective affinity with Zionism, or even with Jewishness, is mixed. Like Brod, Kafka was born into a basically secular Jewish family. In an unsent letter to his father, Kafka refers to his Jewish heritage as “an insufficient scrap…a mere nothing, a joke—not even a joke…. It all dribbled away while you were passing it on.”

As an adult, Kafka made inconsistent efforts to reclaim his Jewish identity. He was passionately interested in Yiddish folk music and theater, and, toward the end of his life, became consumed by the study of Hebrew. Kafka attended the 11th World Zionist Congress in Vienna in 1913 (he was in the city on business anyway), but he was largely indifferent if not hostile to political expressions of Jewishness. In a letter to his fiancée, Felice Bauer, Kafka reported: “I sat in the Zionist congress as if it were an event totally alien to me, felt myself cramped and distracted by much that went on.” To Brod, he wrote: “It is hard to imagine anything more useless than such a congress.” In another letter, Kafka described himself as “excluded from every great soul-sustaining community on account of [my] non-Zionist (I admire Zionism and am nauseated by it), nonpracticing Judaism.” Balint notes that “Kafka, whose writing was born of the impossibility of belonging, pulled away from offers of collective belonging.” Kafka himself summed up his attitude in 1914 with a joke worthy of Groucho Marx: “What have I in common with the Jews? I have hardly anything in common with myself.”

Kafka’s Last Trial tells a sprawling, unwieldy story, and Balint is not to be blamed for all the confusions it presents, many of which are inherent to the material. But some of his structural decisions do make the story harder to follow. Chronologically, the book jumps around constantly, to disorienting effect. Legal proceedings begin and end and begin again; legal officials multiply unnervingly. For the most part, Balint alternates between historical chapters dealing with Kafka and Brod and their legacies, and journalistic chapters detailing the course of Israel’s case against the Hoffes. This juxtaposition makes a certain dramatic sense. But even within the chapters, Balint leaps from one decade to another and then back again, often at the expense of clarity. (Recall that Kafka’s stories, for all their narrative complexities, are stubbornly linear.)

Balint is also a far better literary critic than he is a legal historian: While he acquits himself well enough in sketching the general juridical context of Israeli law, he doesn’t seem nearly as interested in the finer points of legal argument as he is in overarching literary and theoretical questions, and his discussions of the lawyers’ statements and judges’ decisions are mostly perfunctory.

Of all the players in this crowded drama, Balint seems to have had the most access to Eva Hoffe, Esther’s younger daughter. (Eva’s elder sister, Ruth, died in 2012.) Eva is introduced to us in the book’s very first sentence, indicating that we are to regard her as the book’s protagonist. Later, we even find her awakening “from uneasy dreams,” like Gregor Samsa in The Metamorphosis. While Balint stays relatively impartial and stops short of advocating for Eva’s position, a certain sympathy toward her suffuses Kafka’s Last Trial. Her strong emotional attachment to the Brod papers is emphasized: They are, she tells Balint, “like limbs of my body.” After the Israeli Supreme Court decides against her, Eva says she feels “as though I’d been raped,” and directs her hairdresser to shave her head.

The reason for this despair is, ostensibly, her close familial connection to Brod—“You must understand that Max was a member of our family,” she tells Balint—and not the catastrophic loss of revenue and prestige that comes from losing access to the Kafka papers. Indeed, Eva affects not to care about the Kafka portion of the estate at all: “What do I want from Kafka?… Kafka for me has been a disaster. They mixed Kafka into Brod’s estate in order to take it all away from me.” Yet she sees herself as a Kafka protagonist of sorts, a helpless individual up against a cruel, implacable state apparatus. “If this were a tug-of-war contest, I’d have no chance,” she tells Balint. “I’m up against immensely powerful opponents, immensely.”

Balint goes along with Eva’s abject self-portrayal, to an extent. “Like the man from the country in Kafka’s parable ‘Before the Law,’ Eva Hoffe remained stranded and confounded outside the door of the law,” he writes, continuing:

There would be no redemptive revelation for her. She did not understand the law or the intricacies of legal reasoning, but she did understand the sentence. Her inheritance was the trial itself. Paradoxically, she had inherited her disinheritance, inherited the impossibility of carrying out her mother’s will. She possessed only her dispossession.

But “Before the Law”—first published as a stand-alone story in 1915 and later incorporated into the manuscript of The Trial—is a famously ambiguous text, and the comparison of Eva Hoffe to Kafka’s “man from the country” can be understood in more than one way. In Balint’s reading, the man is the victim of arbitrary, awesome power. He is denied access to the law with no reason given, left “stranded and confounded.” Here again we find the Kafkaesque as it has entered the lexicon of literary (and political) cliché: a simple story of the desperate little victim and the oppressive official order.

It is not entirely clear, however, that “Before the Law” is about dispossession or persecution; it can equally be seen as a parable about refusing responsibility, or waiting too long to accept it. While it’s true that the doorkeeper refuses to give his permission, at no point is the man from the country actually prevented from entering the door to the law, which always stands open: The choice to remain outside is ultimately, Kafka suggests, his own. Furthermore, at the end of the story, as the man lies dying after years of waiting at the door and wonders why no one else has ever tried to enter it, the doorkeeper tells him: “No one but you could gain admittance through this door, since this door was intended for you. I am now going to shut it.” The implication is that the man from the country could have passed through the door at any time, and even that he has shirked his duty by not doing so.

Another interpretation, then, of the Hoffes’ story—in its way equally Kafkaesque, though not in the conventional sense—would be this: Max Brod, in his will, indicated the door that he expected Esther Hoffe to enter, the door that led to the archive, a door meant only for her. It is worth noting here that Brod didn’t simply grant the documents to the National Library himself; he left that instead to the discretion of his secretary. Is it possible that Brod, like Kafka before him, wanted to be disobeyed?

In any case, for her own reasons—financial? emotional?—Esther never entered the archive. Her reluctance recalls not only the man in “Before the Law” but all the other hesitant Kafka characters as well, such as the creature in “The Burrow” (a text quoted in another connection by Balint) who speaks of “the childish desire never to go back to the burrow at all but rather to settle in here near the entrance and find my happiness in realizing all the time how the burrow would keep me secure if I were inside it.”

Eva, in her turn, also refused to enter the archive. Why? Perhaps because, by “settl[ing] in near the entrance,” she could continue to enjoy a special kind of status, the kind that comes from possessing something that other people desire and yet still contriving to feel powerless. There is some satisfaction, after all, in feeling like there is an official conspiracy against you, that you are weak and the world is strong: This satisfaction, translated into aesthetic terms, is one of the hallmarks of Kafka’s work. On a more prosaic level, of course, there was also a financial incentive: As long as Eva had Kafka’s papers in her possession, she could continue to profit from the sale of individual items.

Yet another possibility: Eva should not be understood as the man from the country at all, but rather the doorkeeper—the one who delays another’s entrance to the law arbitrarily. Could it be that she belongs not on the side of Joseph K., but on the side of his tormentors? In his epilogue, Balint notes that one “of Kafka’s great motifs, returning like a refrain, is that the Law, radiant but inaccessible, is guarded by fallible, petty, even unscrupulous gatekeepers…. The representatives of the Law, however powerful, are all of them fallen men. Guardians, however devoted, do not always understand what they are guarding.” Maybe literature is like that, too.

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