Someone Must Have Been Talking Law About Franz K


Review of Kafka’s Last Trial: The Case of a Literary Legacyby Benjamin Balint

New York: W.W. Norton & Company, 2018  


The story of what happened to Kafka’s literary remains is famously a story of betrayal. In two wills, one from the autumn or winter of 1921 and the second from November 1922, Kafka requested that the writings left behind after his death should be destroyed. “Dearest Max,” Kafka wrote to his friend Max Brod, “my final request: whatever diaries, manuscripts, letters from myself or others, drawings, etc. you find among the things I leave behind (i.e. in my book cabinet, linen cupboard, desk at home or at the office, or wherever else you might come across them), please burn every bit without reading it.” In 1924, Kafka died at age forty of tuberculosis. Brod, as we all know, did just the opposite of Kafka’s stated wishes. Serving as a kind of literary executor for the rest of his life, Brod’s fame rests on his publishing and promoting Kafka’s writings.  

In 1939, after the Nazi seizure of Prague, Brod settled in Palestine where he remained isolated by language and temperament from the nascent Hebrew cultural scene. When in 1968 Brod passed away in Tel Aviv, he saw himself as the last remnant of a Mitteleuropa literary circle. He charged his friend, perhaps lover, and personal secretary, Esther Hoffe, with transferring the Kafka papers to an academic institution. She instead kept the documents for four decades. Her copy of the original manuscript of The Trial was sold in 1988 at auction for $1.8 million. Eva Hoffe, the eighty-two year old spinster daughter of Esther Hoffe, inherited the remainder of the literary estate that included numerous letters and original manuscripts of Kafka stories.  

The German Literature Archive in Marbach, Germany entered into negotiation with Eva Hoffe to purchase the sizeable residue of the Kafka archive. Israel’s National Library quickly moved to contest the will. Benjamin Balint’s book, Kafka’s Last Trial, tells the story of the trial—more accurately, three trials—over who owns Kafka’s literary legacy. In the end, the Israeli Supreme Court in 2016 assigned the works to Israel’s National Library without any compensation provided for Hoffe—who felt betrayed by her own country. 

Balint’s book is a legal thriller. Trials notoriously follow crooked byways, and these contests were no exception. Egos, evidence, and the emotional stakes of ownership drive the plot. Stubborn and defiant, the aged Eva Hoffe is the protagonist in Balint’s account. Yet Kafka, an enigmatic figure who called himself a circus rider on two horses, hovers like a specter over virtually every page. Balint treats the cases as a metaphor, a sequel to Kafka’s own short story Vor dem Gesetz (Before the Law) where the inscrutable gatekeepers of the law deflect those seeking justice. But beyond the literary, there are deeper questions about the nature of cultural property.  

Why own this property at all? While it is true that Israel’s National Library has appropriated without recompense a collection of documents and manuscripts worth a tidy sum, it is also the case that they almost certainly will never deacquisition the material. Neither does this work at the end of its copyright term generate income through licensing. Instead, Kafka’s archive imposes costs for preserving and making available to scholars his writings. 

Most certainly, if the documents themselves are easily accessible in digital form, the originals have no inherent advantage as an asset. Here lies a peculiar dilemma: Kafka’s writings are not of value and of immeasurable value at much the same time. The legal issue for the Israeli courts was not who has a right to property in its traditional sense—even though that is how lawyers framed the case—but who has the right to a totemic object whose worth comes from its role as a sacred emblem identifying the lineage and history of the Jewish people. 

The question, then, is not where Kafka’s writings should be situated. Rather, it is where Kafka himself belongs. Kafka was German by language, Czech by territory, and a Jew by virtue of exilic melancholy. The claims of lineage are deeply emotional. For the Marbach library, German cultural modernism with its focus on the individual is a through-line that can cross the abyss of the war years. It connects pre-World War II culture with the emergence of a literary scene in the 1960s characterized by a return to the interior labyrinths of fictional characters and readers. Indeed, the very idea of literary work as totem is nowhere as neatly articulated as at the Marbach Museum of Modern Literature (LiMo) where an archival draft of Kafka’s The Trial, prior to the disposition of the other material in the Israeli litigation, rubs shoulders with a manuscript of Alfred Döblin’s Berlin Alexanderplatz

Was modernism a German-inflected cultural project that was derailed by the rise of Fascism? LiMo tells one story. The Kafka Museum in Prague tells another. Its core exhibit begins with two sections: Existential Space and Imaginary Topography. One enters a series of disorienting interconnected rooms where the exhibits are presented askew and often in dark shadows. Since Czechoslovakia sometimes is inconveniently erased from the map, curators focus on Prague’s urban milieu. According to the Museum, Prague acts upon Kafka with its magic, mysterium, and constraints. Its existential space constricts Kafka—driving him to both embrace and transcend its cityscape. Writers are the creatures of territorial place which they turn—this is the second exhibit—into an Imaginary Topography. Here, too, there is an historical narrative with which to contend. Modernism is about disenchantment—a disenchantment ever so poignant when early modern Prague comes under the control of a culturally blunt post-War communist regime. 

For Jews, and especially Israeli Jews whose country emerged under the shadow of the Holocaust, World War II is the signal historical moment where modernism failed. Israel’s project as a utopian-refugee state was to experiment with building a model nation that would negate exile. The problem for Jews was that they were people out of place, and it was a matter of historical rectification to provide for the ingathering of exiles, the reburial of major iconic figures such as Herzl in Jerusalem, and the repatriation of literary remains.  

Much of the Israeli claim to facilitate Kafka’s posthumous literary immigration to Jerusalem is based on presumptions about Kafka’s own assertion of Jewish identity. To be sure, Prague was at the vortex of early twentieth-century debates over the establishment of a Jewish homeland. Martin Buber delivered a famous series of lectures to packed audiences in Prague between 1909 and 1911. His calls for a Hebrew renaissance centered in Palestine galvanized a generation of Jewish students. Kafka studied Hebrew, published a pair of stories in Buber’s journal Der Jude, discussed Zionist projects in his correspondence with Felice Bauer (the woman to whom he was twice engaged), and studied Hebrew with mixed success.  

Yet Kafka’s Zionism—like his engagements—remained unconsummated. He had other tugs even on his Jewish allegiances. Kafka was captivated by Yiddish. He became fascinated with Isaac Löwy, the head of a Yiddish dramatic troupe. In 1916, Kafka met a prominent Hasidic leader, the Belzer Rebbe, while the latter was staying at a spa in Marienbad. Kafka, in other words, was a Jewish cosmopolitan: encountering both Hebrew and Yiddish literature, intrigued by mysticism and the spare metaphoric language of German-Jewish modernism, and—in the classic form of café Zionism—talking about Zionism while keeping far away from the relentless gaze of the Middle Eastern sun. Kafka called himself “the most Western-Jewish of all West European Jews.” It was a much harder task to remain a cosmopolitan Jew if one had to adopt all the singular demands of the Jewish settlement in Palestine. How should we approach Kafka’s commitment to cultural cosmopolitanism?  

In fact, the legal battle over Kafka seemed like a second act to an earlier controversy concerning the Jewish author and artist Bruno Schulz who has been dubbed “the Polish Kafka” due to his deeply symbolic writing. Born in Drogobych and murdered there by the Nazis in 1942, his identity was every bit as much of a mosaic as Kafka’s. The majority population of Drogobych was Polish (though it is now part of the Ukraine)—and Schulz wrote in the Polish language. Nevertheless, Drogobych was situated within the orbit of Lemberg, the provincial capital of the region, which during the waning days of the Austro-Hungarian Empire was shaped by German intellectual currents. And, like Kafka, Schulz found the intricate Jewish culture of Eastern Europe—the Hasidic grappling with literary imagination—mesmeric. In 2001, a German documentary filmmaker uncovered a mural Schulz which had been compelled to paint for the five year-old child of the city’s leading Gestapo officer. The same year, representatives of Yad Vashem, Israel’s major Holocaust Museum, secretly removed five mural fragments, a depiction from Grimm’s fairy tales of a princess, two dwarves, and a horse and carriage, and relocated them in Jerusalem. Schulz’s coachman was a self-portrait.  

Cultural property often does not fit neatly into the silos of national narratives. There are some national literary traditions where language, ethnicity, and territory are better suited together. Britain, an island and often rather parochial people, can establish a Poets’ Corner, the South transept of Westminster Abbey, without much fuss. Chaucer, Dryden, Dickens, and Tennyson are different from the point of view of style, but remarkably English in their very essence. Similarly, Goethe is naturally memorialized in Frankfurt, the birthplace of German liberalism and Weimer its later picture postcard capital. Even if Goethe was not indisputably a German writer, his preeminent position as the object of the Goethekult leaves no doubt about who owns Goethe. Yet the terrain is less certain when we consider cosmopolitan authors. Placing them in the straitjacket of national borders makes much less sense. The cosmopolitan bricolage of empires, diaspora existence—exemplified by Jews—and even the imaginative ability of émigré literary figures to transcend their surroundings makes any singular claim difficult. 

Does Kafka belong anywhere? Marbach, Prague, and Jerusalem seem to grasp only part of Kafka’s legacy. It is hard to imagine him outside of exile. He was the prophet of reluctant modernism, a dangling man—often caught between competing desires, a figure of dispossession, scripted loneliness, and banishment. He embodied estrangement. In other words, Kafka might best be categorized by time, not territory. He embodied the interwar bridge between a classical literary landscape that existed prior to being shattered by World War I and the much more fragmented, chimeric style of our own times. The obituary by his lover, Milena, probably best captured this notion: Kafka’s books “contain, in an undogmatic form, the current age’s battle of the generations.” 

The question who owns Kafka seems remarkably archaic. Kafka belongs to a generation—and the generation has vanished. Certainly, it lingered a bit in its émigré café incarnation in New York or Tel Aviv. It can be understood in part by literary scholars who seek to resurface the circles around Kafka. Or perhaps, by writers like Borges who fantasize about Kafka’s precursors (which Borges never ends up identifying). Or even by undergraduates who insist upon wearing starkly black-and-white Kafka tee-shirts which embody their own sense of modernist dispossession. In the end, however, we are faced with a Kafka who despite museums, manuscripts, and the assertions of archivists evades our claims. 

Cultural property is a history of spoils and relics. Ancient Rome seized the objects of the vanquished and brought them to populate the temples lining the Forum and the residences of its aristocracy. The Israeli Supreme Court turned this model upside down. Its judgment delivering Kafka’s writings to the Israel National Library was founded on a sense of victimhood. The decision was a kind of repatriation, a pronouncement that Germany lost the right to host German-Jewish writers.  

Yet Kafka’s writings are the closest we have to relics in our times. To be successful as a cathedral in medieval Europe, prelates needed to display a few relics—a few bones of a venerated saint, a martyr’s blood, and—perhaps best of all—splinters of the True Cross. The beauty of the reliquary was that allowed for pilgrimage without all the fuss and bother of travelling long distances to the Holy Land. Museums, archives of modern literature, and national libraries are the sacred precincts of literary culture. Great writers are represented by their walking sticks, writing desks and instruments, and eyeglasses—often positioned on a sheaf of papers. A recent exhibition on Turgenev in Moscow exhibited his brass samovar around which literary friends gathered.  

Balint suggests that Kafka’s literary trials were unseemly. But perhaps the contested assertions of Marbach, Prague, and Jerusalem to his legacy allowed these very different claimants to Kafka an opportunity to articulate his various guises. Such trials—not unlike other show trials of the twentieth century—are performative moments where we can understand what is truly at stake in fashioning cultural heritage. Potential libraries might be compelled to explain why they deserve to house a work, how they might provide the best access to the public and scholars, and the ways they might be most open to sharing literary or artistic works with parties whose claims were not granted. Israel’s Supreme Court would have been better served by remembering another Jerusalem court, a Solomonic Court, which knew how to split the baby—and possibly to provide joint ownership of Kafka’s cultural relics that could be located for a certain amount of time in each country’s libraries. 

It is ironic that Kafka, the prophet of modernism, would have his literary remains transformed from ordinary property into relics enchanted only because they were once so intimately connected to a writer. But, of course, Kafka would have appreciated that modernism and mystery are merely two sides of the same coin.


Posted on 8 October 2019

STEVEN WILF is Anthony J. Smits Professor of Global Commerce at the University of Connecticut School of Law