Czechs Kafka Kundera and consent Careful what you submit to: law may not be morally grounded by David Langwallner I am now working in the Czech Republic. Before I arrived I had a certain tourist’s knowledge of Prague and had visited briefly twice previously for short periods but the main tourist sights sell this flecked and overlaid tapestry of a city short, neglecting its diversity of specialist shops and bookstores – fast disappearing from Dublin – and its shadowy labyrinth of side streets enveloped in mystery, particularly at night. My knowledge of the Czech Republic was solely of its florid culture. The novels of Milan are a crash course in uninhibited European eroticism framing a social culture unknown in Ireland – European decadence alien to our deeply repressive mindset and our low grade obsession with the smutty and tabloid side of sexuality. Kundera‘s novels are also written in an exquisite lapidary style. Short, precise staccato but also lyrical. Everybody should make time to read at least ‘The Farewell Party’, ‘The Unbearable Lightness of Being’ and the glorious collection of short stories ‘Laughable Loves’. There is also a lot of dark laughter in those books not unlike Flann O’Brien‘s and culturally there is at least here a reference in the black and lachrymose senses of humour and despair. Of course Kundera is not even close as far as The Czechs are concerned to their greatest writers led by Franz Kafka. Kafka is like a shadow over Prague. In the Jewish quarter there is a rather bold modernist statue of him. His visage and silhouette adorns mugs and t shirts in every tatty tourist shop. There is an expensive and uninformative Kafka museum and a bookshop in his name. There is above all else his house by the great castle where he lived a hundred years ago, not dissimilar to the two-bedroomed artisan houses near the Four Courts. Kafka was Jewish, an anomaly in the Czech Republic and of course he wrote in German. Since I have been taken aback at how Germania has been expurgated from Prague culture. The Czechs speak English and Russian primarily outside their own language. Still they venerate Kafka. It is a legal reference from a case that unsettled and derailed my career at the Dublin bar – Gilligan v Ireland (1997) – that sparked my later interest in Kafka. I used the expression “a Kafkaesque situation” in that case impromptu. It conjures a situation of absurdity and perversity. The Proceeds of Crime Act 1996 met it well. I am not sure it helped my career. Franz Kafka trained as a lawyer though he did not enjoy it. According to one account he found that the study of law: 1 “Had the intellectual excitement of chewing sawdust that had been pre-chewed by thousands of other mouths”. The leading feminist scholar Robin West in a philosophical monograph, in the 1985 Harvard Law Review, argues that Kafka’s world presents law as alienating and excessively authoritarian, exerting in people a craving for conformity. People have an urge to conform or obey the law and may obey a law which is intrinsically unjust. As West argues: “Kafka’s world is peopled by excessively authoritarian personalities. Kafka’s characters usually do what they do – go to work in the morning, become lovers, commit crimes, obey laws, or whatever – not because they believe that by doing so they will improve their own wellbeing but because they have been told to do so and crave being told to do so”. She contrasts this negative view with the view of law as facilitating the maximisation of one’s own welfare, presented by the right-wing Law and Economics scholar Richard Posner, perennial candidate for appointment to the US Supreme Court: “Whereas Posner’s characters relentlessly pursue autonomy and personal wellbeing, Kafka’s characters just as relentlessly desire, need and ultimately seek out authority”. In evaluating these views, West points out that although both Kafka and Posner see people as consenting to the various transactions they enter into, for Kafka such consent can lead to humiliating and degrading employment, sex and even death. For Posner, the ultimate free- marketer, such consent is rational and self-fulfilling. For Kafka, such consent leads to victimisation, self-mutilation and death”. West draws from her reading of Kafka on consensual market transactions a conclusion laden with foreboding: “In all of these market transactions – commercial, employment, and sexual – Kafka portrays one party consenting to a transfer of power over that party’s body, and in each instance the transfer, although consensual, is horrifying. In none of Kafka’s depictions does consent entail an increase in wellbeing…The participants are often motivated by a desire to submit to authority, not to enhance autonomy”. West summarises the polar opposite visions of Posner and Kafka thus: “Posner teaches us that when the risk of the loss is voluntarily assumed, the ultimate suffering of that loss is consensual and we consequently need concern ourselves no more with losers in the market than with those in the lottery. Kafka’s stories tell a different tale. In Kafka’s stories, the community’s refusal to intervene and come to the aid of the market losers is revealed as a breakdown of community and brotherhood, not a legitimate response to a morally satisfactory state of affairs”. From this, she concludes that Posner’s theory is deeply flawed: “The problem with Posner’s argument is that even if these losses have been impliedly consented to, he has not shown that anything of moral significance follows from that fact”. And moral significance is the framework. 2 West also examines the question of consent to law in Kafka. According to Posner, people consent to legal imperatives that are wealth-maximising. According to Kafka, they consent to impersonal state imperatives not because they are wealth-maximising but out of a deep-seated desire for judgment and punishment. Thus, in the short story ‘The Judgment’, a son submits to death by drowning as his father has decreed. In the short story ‘The Refusal’, the townspeople obey the colonel in charge of the town because authority has “just come about”. The most dramatic example of this submission to authority is, I believe, in ‘The Trial’. In ‘The Trial’, Joseph K is arrested without having ever done anything wrong. He never learns the nature of the charges against him; he is arrested but not imprisoned, interrogated but never forced to appear, yet in time he passively accepts the jurisdiction of the court and the law’s authority, which results ultimately in his own execution. It is dangerous to be compliant. Finally, West relies upon Kafka’s short parable ‘The Problem of our Laws’, in which Kafka informs us that law is ultimately sustained not by force but by the craving of the governed for judgment by lawful, noble authority. It is this human craving, even more than the urge of the powerful to dominate, that sustains the illusion of certainty, fairness, generality and justice in the law. In conclusion, West derives the message from Kafka that: “Our tendency to legitimate lawful authority – to give our hypothetical consent – may have good or evil consequences, depending upon the moral value of the legal system to which we have submitted and the moral quality of the relationship between state and citizen that our consent nurtures” Submission to authority or even a court order should not be automatic. We must ask ourselves the questions who is doing the judging and what is their legitimacy. Irish judges, as Jennifer Carroll MacNeill’s recent book confirmed, are still chosen by the government. And judges are of course animated by personal biases and prejudices as the great American jurist Jerome Frank adumbrated: “A man’s political or economic prejudices are frequently cut across by his affection for or animosity to some particular individual or group, due to some unique experience he has had; ….the judge’s sympathies and antipathies are likely to be active with respect to the persons of the witness, the attorneys, and the parties to the suit. His own past may have created plus or minus reactions to women, or blond men, or plumbers, or ministers, or college graduates, or Democrats. A certain twang or cough or gesture may start up memories pleasant or painful to the man”. Their decisions inevitably represent the collective will of the governing, upper-middle classes, particularly of those so conservative they appeal to the grandees of Fine Gael and Fianna Fáil who select them. What then is the moral value of the legal system to which we have submitted and the moral quality of the relationship between state and citizen that our consent nurtures? 3 David Langwallner is a graduate of Harvard and the London School of Economics and Professor of Law at The Anglo American University Prague though he continues to practise in Dublin’s Law Library. 4 .