The Need for Confluence of Creation Styles in the Law

-- By IrisAikateriniFrangou - 14 Apr 2021

Introduction: Kafka’s and Joseph’s Subjective Depiction of the Law

Joseph’s “Lawyerland” converges with some of Kafka’s works in the subjectivity of the law’s portrayal. Rather than being lucid through its theoretical objectivity, the law appears muddled in its practical effect on its subjects. The subjectivity of experience (in the law’s impact) dominates both worlds: Kafka’s characters suffer as defendants under what they perceive to be the absurdity of the law – a system that inflicts real harm on their lives, but which is inaccessible (and hence incomprehensible) to them; Joseph’s protagonists suffer as lawyers who are honest about the misalignment of law in theory and law in practice, but whose acceptance of which, renders them despondent. The characters’ experience of the law is subjective, yet generalizable: Kafka’s subjects embody the point of view of defendants, and Joseph’s that of lawyers. The authors’ unconventional depiction of the law as subjectively experienced is effectuated through an equally unorthodox vehicle – that of literary narration.

In so doing, the present essay argues, both Kafka and Joseph reveal the limitations of the traditional jurisprudence’s view of the law as judge-oriented, which largely confines legal imagination to legal scholarship and judicial opinions. There are many other conceivable ways through which the authors could have teased at the limitations of the traditional perspective espoused by American legal academia. However, the significance of Kafka and Joseph resides, the present essay suggests, in illustrating the need in the law for consilient reasoning from multiple perspectives, which is best effectuated by inviting the confluence of different styles of creation.

Kafka’s “The Trial”: The Defendant’s Perspective

The Trial features “Josef K.”, a cashier who is arrested by two nameless agents from an indeterminate agency for an indeterminate crime, of which he is eventually executed. The entire experience is narrated through the perspective of the agitated defendant, entrapped by a legal system to which he nevertheless remains a foreigner: the operation of the law is never explained to him, yet it dominates his life with brute force. It is this alienating effect of the “outsider status” that renders the law (and eventually life) absurd for K. Regardless of whether the law also serves as a metaphor for the alienation of man in modern society, the law itself is definitively present in Kafka’s writing. The law objectively exists as is evidenced by the legal process of K.'s trial. Rather, it is K.'s experience of the law that makes it seem hidden because it is inexplicable to him. The only definitive revelation is by Titorelli (the court’s painter), from whom K. learns that no final acquittal is possible but even then, K. never understands how the law arrives at this outcome – it is Titorelli’s empirical (not legal) understanding of the law that is communicated. Hence, the law is objectively present in Kafka’s work and though this definitiveness is necessarily recognized by the defendant (through the absolute impact the law has on his life), the law nevertheless “feels” absurd because its mechanisms are foreign to him. There is a gap between the law’s objectiveness (definitive presence) and the defendant’s experience of the law (incoherence due to its inexplicability).

Joseph’s “Lawyerland”: The Lawyer’s Perspective

In the work’s first chapter, Robinson narrates his successful defense (outside of court) of a young man, who attempts to rob a residence that unbeknownst to him belongs to the AUSA. The AUSA then informs his brother-in-law (the ADA) who assigns the case to a leading female prosecutor. Robinson threatens to use his information of those relationships to exculpate the young man. His anecdote, like K.’s, illustrates the distance between the law in theory and the law in practice. However, the change in perspective (from defendant to lawyer) also imbues this distance with new meaning. Here, the law theoretically relies on the neutral application of its rules, but in practice it is social relationships that are the most significant determinant of legal outcomes. More than just convergence (in the depiction of the law as subjective i.e. perspective-dependent), Lawyerland further informs Kafka’s view of the law. The law in Lawyerland is largely relational – it is based on social relationships that the lawyer strategically navigates. In its introductory self-proclamation that it is "truthful", Lawyerland intimates that such relationality is part of the law’s reality (not just Robinson’s) – a view which traditional legal thought does not deny but largely ignores. The theoretical - practical divergence in the law is not absurd to Robinson (the way it is to K.); his suffering instead, derives from the very understanding of that system as one that is disjointed in practice from its theoretical lucidity.

The Limits of Traditional Legal Jurisprudence

Kafka and Joseph make it painfully obvious that the traditional jurisprudence’s focus on objective rules (the law as judge-oriented, clear, and predictable) provides an incomplete account of the nature of the law. The law gains meaning only through its application to social relationships. Legal rules are meaningless without practical application, just like practical application is inconceivable without legal rules. The traditional insistence on a single point of view (that of the judge) does not convey the full range of legal experience because it omits the perspective of the lawyer and the defendant.

It therefore becomes clear, that the law, in its present form, is unable to convey multiplicity of perspective. Were American legal academia to invite the confluence of styles of creation, would this perhaps provide a more effective path towards gaining awareness of multiplicity? And would such awareness, expressed through consilient reasoning from multiple perspectives, improve the quality of interactions amongst stakeholders within the legal community?

The Power of Consilient Reasoning from Multiple Perspectives

Literature enabled Kafka and Joseph to dramatize the gap between law in theory and law in practice, evidencing the relational aspect of the law in its application. There are many other ways however, through which the authors could have evoked the limitations of the perspective espoused by the traditional jurisprudence; after all, the ability to convey multiplicity of truth is not the sole property of the literary (nor the legal) imagination, as music, art, or architecture very emblematically reveal. Nonetheless, the writings of Kafka and Joseph are important because they demonstrate the need in the law for consilient reasoning from multiple perspectives. This is perhaps most starkly evoked by Robinson’s revelations and disposition; even if legal academia shuns it, the recognition that the law itself contains multiple, different representations or “truths” is a reality that every lawyer inevitably confronts as he is faced with the ensuing task of strategically managing social relationships. Thus, awareness of multiplicity is not merely a value to be espoused by the law for the sake of any moral or enlightened attributes that it may inherently contain; it is rather, a need that is created by the very existence of society as a force in our lives (and by extension, an exigency cutting to the very core of who a lawyer is and what a lawyer does – making things happen in society using words). Having established the need for an awareness of multiplicity within the law, such an awareness is then, arguably, best cultivated through the confluence of styles of creation. With each new style, for which the law makes room, comes a greater expressive range in reflecting the multiple sides of the law itself - its multiple stakeholders, their situational divergences, and ultimately in providing a more accurate account of the nature of the law as a force within society today. The legal community then, would be well served by moving away from its focus on the law as the near exclusive style of creation and inviting greater confluence.

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