Publication Date30 December 2004
Date30 December 2004
AuthorEdward Mussawir
Edward Mussawir
If it has become possible in recent times to talk of a jurisprudence of Franz Kafka,1
it should be realised firstly that two things dear or indispensable to the writer will
have long been disfigured in the study of law: desire and its assemblage. “For
spiritual nourishment,” he writes of his legal education
I have nothing but sawdust, which, to crownit all, has been chewed over already by thousands
of mouths before me (Kafka, 1966, p. 94, as cited in Legendre, 1997, p. 101).
Jurisprudence, after all, would be a very specialised field in which one must speak
a very specialised and sober language; a particular form of expression inseparable
from a particular investment of desire. But Kafka’s problem with legal studies, if
it can be viewed as a problem of sawdust, would not be for example what else one
can chew, but simply this: how else to put one’s mouth to use? In other words,
how to invent a mode of expression as the only real way to desire, or alternatively
how to desire as the only real way to express oneself. For this, one always finds
a machine – literature, letters, childhood or animal machines perhaps, as Kafka
discovers for himself. And of course the various juridical machines through which
desire is assembled and organised according to strict formalisations of content and
enunciation. Jurisprudence would still not have come close to laying its hands (or
itsmouth)uponthisassemblageinwhichit,asasmallorevenmarginal component,
discovers its functionality: a legal assemblage of desire.
An Aesthetics of Law and Culture: Texts,Images, Screens
Studies in Law, Politics, and Society,Volume 34, 111–131
Copyright © 2004 by Elsevier Ltd.
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1016/S1059-4337(04)34005-6
So what are the machines of law and how are they assembled? How do they
produce desire? How are enunciations made possible? These are all questions
the answers to which seem self-explanatory to jurisprudence for the simple fact
that they form its condition of possibility. In other words they always seem to be
pre-given. But Kafka answers them in a peculiarly practical way: enter the police-
station for yourself, the courtroom, the lawyer’s office, the cathedral, the family
home; have yourself thrown in a prison perhaps and invent a wayout.2The Trial,
it should be noted at the outset, does not and cannot proceed without particular
machines capable of formalising enunciation and content and thus instituting life
as a matter of jurisdiction – a processing of the various spaces through which legal
desire passes. The justice-machine of “In the Penal Colony” for example, which
takesupbothabodyandascript into its gears and which continues to function at the
same time as it is dismantled simultaneously in the story itself as in Kafka’snovel,3
a particular letter-machine with Felice Bauer, an oppressivebureaucratic-machine
or an equally oppressive family-machine, a judicial- or litigatory-machine. Kafka
must have had an intuition for these kinds of mechanics which concern themselves
not with truth or originality but with the simple possibility (indeed, necessity) of
expression and desire. The apparatus of “In the Penal Colony,” to take the most
obvious example, is described in meticulous detail, as if these physical dimensions
were as important as the jurisprudential debate which surrounds its cruel operation.
Certainly, most readers of this story will identify themselves with the traveller, at
least to the extent that they must also learn, in a perplexedway, the workings of this
machine while being horrified by its unmistakable inhumanity. “And yet Kafka,”
writes Heinz Politzer,
can be identified as little – and as much – with this Explorer as he is with his antagonist, the
officer; he hides behind them and gains many an ironical twist from the distance which still
separates him from both figures (Politzer, 1974, p. 69).
As a writer, Kafka could only really identify with the one thing that happens to
write in this text, namely the machine; the apparatus which inscribes upon the body
of the accused (himself inseparable in a way from the machine) the commandment
he has disobeyed. The machine itself, of course, has no discourse of its own – it
functionsirrespectiveof any justification, or rather “is its ownjustification”(Kafka,
1981, p. 164) above all, because it grants discourse – and those who, upon coming
to witness it in action, happen to discuss the intricacies of justice or law, simply
find themselves caught up in the phenomenon. It is a discursive machine in the
sense that the discourse of justice, which is equally something felt as something
expressed, is a question only of formalising commandments and the experience of
pleasure or pain – enunciations and their embodiments – all in the one process. It is
little surprise that the machine “short-circuits” one might say under the unlearnable

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