An artist of the law


Novelist Franz Kafka PHOTO/Wikipedia

Kafka was a lawyer by training. At the age of 25, two years after getting his law degree, he began work at the Kingdom of Bohemia’s Workers’ Accident Insurance Institute, where he devoted himself to the implementation of the law on statutory occupational insurance, adopted by Austro-Hungary in 1887—three years behind Germany and eleven years ahead of France.footnote1 Kafka specialists are divided as to whether his legal career hindered or helped his literary work. His diaries and letters offer evidence to support both views, which should not be surprising, since there is barely a single affirmation from his pen that is not immediately reconsidered from another point of view. Thus he famously wrote that his legal studies involved living on sawdust, already chewed over by thousands of mouths—but promptly added that, ‘in a certain sense’, this was exactly to his taste.footnote2 This way of turning over the cards, not stopping at the first meaning of a fact or symbol but always examining them from the reverse perspective, is the hallmark of the legal mind—or, more precisely, of the art of the trial, which is entirely governed by the rule of audi alteram partem: hear the other party.

This first rule of the art of law is known today as the adversarial principle—in French, the principe du contradictoire. It is an ambiguous term, since consideration of the opposite point of view doesn’t annul the first viewpoint but puts it to the test of truth, allowing the party defending it to rebut in turn the arguments made against it. In other words, the principle is valid only to the extent that it is at the service of the law of non-contradiction: that a thing cannot both be and not be at the same time. In the course of legal proceedings, the play of these successive ‘speaking againsts’ thus takes place on a terrain of rules that cannot themselves be contradicted and which are based in law. The parties have to submit to the same law for the trial to proceed; it is this common submission that allows them to exchange words, rather than blows.

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