THE DECONSTRUCTION AND REIFICATION OF LAW IN FRANZ KAFKA’S “BEFORE THE LAW” AND THE TRIAL PATRICK J. GLEN* Reading a text is never a scholarly exercise in search of what is signified, still less a highly textual exercise in search of a signifier. Rather, it is a productive use of the literary machine, a montage of desiring machines, a schizoid exercise that extracts from the text its revolutionary force. - Gilles Deleuze and Felix Guattari, Anti-Oedipus
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INTRODUCTION
W.H. Auden once observed that Franz Kafka is to the twentieth century what Dante, Shakespeare, and Goethe were to their respective centuries. 1 Commensurate with such a designation, Kafka’s work has long been an object of scholarship in both literary and philosophical circles. Yet it has only been relatively recently that his work has received prolonged treatment within the legal academy. This is not to say that the recognition of the confluence of law and literature is new, for the modern discipline of “law and literature” has antecedents dating back to the nineteenth century. 2 Kafka, along with such writers as Herman Melville and Charles Dickens, was also central to the development of the study of law and literature in the latter part of the twentieth century. But it was only after a series of articles was published in the Harvard Law Review between December 1985 and May 1986 that Kafka emerged as a subject of legal scholarship generally. This series of articles, a colloquy between Professor Robin West and Judge Richard Posner, marked the first prolonged treatment of Kafka’s work concerning its applicability to legal reality. Due to the importance of this colloquy to the evolution of “law and literature,” and because it highlights *
Patrick Glen has been an attorney with the United States Department of Justice, Office of Immigration Litigation, since the Fall of 2006. Prior to his employment with the Department, he earned an LL.M. from Georgetown University Law Center and a J.D. from Ohio Northern University, Pettit College of Law. Mr. Glen would like to thank Robin West of Georgetown University Law Center for her insightful comments on initial drafts of this article, Douglas Litowitz for initially introducing him to the field of “law and literature,” and the editorial staff of the Southern California Interdisciplinary Law Journal for their hard work in bringing this article to print. The views expressed in this article do not represent those of the United States government or the Department of Justice. 1 RONALD GRAY, FRANZ KAFKA 1 (1973). 2 See Richard A. Posner, Law and Literature: A Relation Reargued, 72 VA. L. REV. 1351, 1352 (1986) [hereinafter Law and Literature] (noting works by English lawyers on Shakespeare (CUSHMAN K. DAVIS, THE LAW IN SHAKESPEARE (1883)), Dickens (James Fitzjames Stephen, The License of Modern Novelists, 106 EDINBURGH REV. 124 (1857)) and others).
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