Permanent Witness for the Defense: The Legend of K.

The ultimate anti-author, ca. 1919.

A review of the new book by Benjamin Balint, Kafka’s Last Trial, from Norton, Penguin/Random House.

“A book should be the axe for the frozen sea inside of us.” – Kafka, 1904

“Where faith is lacking, everything seems bare and frigid.” – Max Brod, 1920

If the subtitle of the fascinating new book by Benjamin Balint, Kafka’s Last Trial (from Norton, Penguin/Random House), about competing cultural agendas sounds like the name of a mystery novel about Erle Stanley Gardner’s famous defense attorney, that’s because it does almost read like a classic Perry Mason plot: “The Case of a Literary Legacy.” And indeed, there are even some characters in this real-life story of courtroom drama who feel like the erstwhile Mason, Hamilton Burger, Lt. Tragg, Paul Drake and even Della Street. There are detectives, combative litigants, accusations of false ownership, desperate pleas, outlandish nationalist claims, ill-advised decisions, questionable motives and selfish assumptions abounding.

The cast of characters in a literary parade is a suspicious caravan of self-serving custodians of a precious cargo, with only two, Max Brod and Franz Kafka, being utterly above any kind of reproach. Kafka was the creator of the cargo and Brod was the close friend and ally he stipulated as the inheritor of its fate. In fact, he left no doubt as to his actual desires when it came to the manuscripts of early and many still unfinished novels, diaries and letters: burn them all without any doubt or hesitation, erase them from the face of the earth as I too, or so he surmised in his melancholy state, will be eclipsed and forgotten. Man, was he wildly mistaken.

Rebecca Schuman was one observer who seems to have most accurately assessed the deep ironies and paradoxes that saturated this cultural melodrama when she described it as a “court battle over manuscripts that were never even supposed to exist.” As she has also pointed out, at the heart of this matter was the perhaps impenetrable question of who owns Franz Kafka, or at least who owns the legacy he unintentionally left behind for two nations and many stewards to spend years fighting over.

It was an international battle indeed, though one played out in Israeli courts, and it ostensibly involved three main litigants: the National Library of Israel, where Kafka’s friend and fellow writer Brod had eventually settled; the German Literature Archive in Marbach, which claimed the Czech-born but German language master Kafka as its literary hero; and Eva Hoffe, who had inherited the manuscripts from her mother, Esther Hoffe, who in turn had been bequeathed them by Brod, for whom she served as a secretary, confidant and close ally.

In a sense the case turns on how one interprets both the author’s origins and the ally’s intentions, and also on how one defines a legacy of inherited relics versus a gift. Reporting in Slate on the ongoing legal battles for this heritage (which she described as “yellowing papers in his trademark loopy scrawl, those writings that came out of him like a birth”) the players were passionate but confusing as to proper ownership or attribution. True, Hoffe had been bequeathed the documents by her mother, who had been given them for safekeeping by her employer and friend Brod, but did that constitute a last will?

And what of the National Library of Israel? Were they really entitled to call Kafka a “cultural asset” due to his looming large as Jewish intellectual even though he never set foot in Israel and instead was seemingly “betrayed” by Brod, who ended his days there; while Kafka always expressed ambivalence about his own Judaism and instead was steeped and saturated in German literature, the language in which he expressed his elliptical and often exquisite prose.

Brod had fled to Palestine during World War II and died in Tel Aviv in 1968, forty-four years after his brilliant friend Franz had passed away. Thus both Israel and Germany, not to mention Esther’s daughter Eva, who also muddied the waters by selling some of them to get by, all claimed that the legacy belonged to them, for various reasons, some elevated, some crass.

The two writers, Kafka (l) and Brod (r) both of whom are only famous because one disobeyed the other’s dying wishes.

Therefore Balint’s book, which delves deep into the court case and trial itself, as well as the claims and counter-claims, might also be considered a very valuable meditation on the complicated relationships among identity, religions, politics, nationalism, and most importantly, literature itself as an artifact of human experience.

So, on stage there are multiple Goliaths fighting it out over one single, quiet, and totally absent David, the writer who had never intended anything unpublished of his (which was almost everything, and acres of it, especially his diaries) to ever see the light of day. Author Balint, meanwhile, himself a research fellow at the Van Leer Institute in Jerusalem, offers a fairly unbiased account and stays out of the final judgments as a fair-minded observer. The whole affair, of course, as Schuman also astutely pointed out in her observations on the trial and its reporting, brings to mind an absent author whose very name itself has become an adjective often used to describe such stories or situations: it’s all just so Kafkaesque.

Now, naturally, the readership for the story of what happened to his personal papers and manuscripts, separate from his actual literature, might be a slightly smaller audience. But still, anyone who wonders to what extent the nation state, either one of them, can lay claim to the cultural property of one of its most wayward and eccentric citizens will be intrigued by the riveting narrative journey Balint takes us all on. It can often feel like a relentless cross-examination of creativity itself, and a determined dissection of who should “own” the fruits of genius’s labour, especially if he didn’t really want anyone to see any of it at all.

At least Brod gave the papers he saved from oblivion to Esther, who actually sold the manuscript of Kafka’s The Trial (irony of ironies) before then bequeathing the treasure to her daughter Eva, who tried to claim that she alone deserved to have the priceless archive. But not if both Israel and Germany had anything to say about it, and they had plenty to say indeed. One owned the language K. wrote in, one imagined they owned the voice in which he wrote it, and both of them collided after Esther’s passing in 2007, contesting her will and sparring furiously until the court case was finally won by Israel in 2016.

Eva Hoffe with Max Brod, photo from Hoffe's family archive.

As Lev Mendes pointed out in his level-headed assessment of this scenario for The New York Times, the legal battle over K.’s papers says a lot about him (the book’s early stages explore Brod and Kafka’s friendship and their lifelong bond) but the battle also reveal a lot about us, or at least about human nature and the national state’s identity. I liked the way Mendes, with plenty of justification, refers to Max Brod’s “original sin,” the act that launched not only K.’s posthumous career but his own, as having the same uncanniness and mythic aura as his late friend’s faction possessed.

His 1924 note to Brod, when Kafka was dying of tuberculosis and certain that his difficult career as a writer was all but doomed to nothingness, was very clear, to not only burn everything but also “unread and to the last page.” Instead, as we know, in a brave act of loving disregard Brod defied his friend and became his editor, compiler, annotator and accidental archivist. When he gave them to his assistant Hoffe, she proceeded to stash them in a vault.

Mendes described a central paradox well: “That Brod, the great custodian of Kafka’s legacy, managed to leave it in the hands of litigious would-be inheritors is no small irony, though fitting one given the nature of Kafka’s court-ridden work.“ Indeed, both his great novels, The Trial and The Castle, which would have remained unpublished except for Brod’s intervention with the flames, are gorgeously overwhelming obsessive-compulsive exercises in analyzing the suffocating bureaucracy of everyday life.

Balint’s book is entertaining, strangely so since it combines an odd hybrid of law-court procedural doctrine with biographical portraits of the two great literary friends, Kafka and Brod, and superimposed over a studious account of postwar reconstruction of two distinct but parallel national identities, Israel and Germany, and their competing fetishization of what can only be called the Kafka Industry.

Postcard, one of thousands, from Franz to his literary friend Max. 

The story is veritably crawling with symbolic resonances, as Balint himself calls them, and inevitably leads the reader face to face with what makes Kafka such a difficult, beautiful and universal artist and figure.

Even though his unique remoteness, otherness and restless dissatisfaction with being was tremendously embedded in his Jewishness, Germanness and cultural persona, his view of the modern world as an impossible to master machinery of powerlessness somehow manages to resonate also with multiple non-European cultures. His works have been translated into practically every language on earth, except maybe Maori. What makes him so special is his humanness, the very fact that he claimed not to be special at all.

This book by Benjamin Balint on the amazing legacy of K. is an ideal companion for anyone who has already absorbed every word this master wrote, including his acres of personal diaries (I myself confess to being someone who happily would read his grocery or laundry lists, and actually have, in fact). But it is also valuable as a primer or crash course into what all the hubbub is about, perfect for anyone who has ever wondered why this strange and lovely little man means so much to so many of us. He was, quite simply and without even realizing it, sending poignant postcards to all of us in the future. Some of these difficult-to-describe pieces of pure poetry, cleverly disguised as fiction, are still arriving, to us, his judge and jury. He was a permanent witness for the defense, and we are permanently on jury duty.

– Donald Brackett is a Vancouver-based popular culture journalist and curator who writes about music, art and films. He has been the Executive Director of both the Professional Art Dealers Association of Canada and The Ontario Association of Art Galleries. He is the author of the book Back to Black: Amy Winehouse’s Only Masterpiece (Backbeat Books, 2016). In addition to numerous essays, articles and radio broadcasts, he is also the author of two books on creative collaboration in pop music: Fleetwood Mac: 40 Years of Creative Chaos, 2007, and Dark Mirror: The Pathology of the Singer-Songwriter, 2008, and is a frequent curator of film programs for Pacific Cinematheque. His latest book was Long Slow Train: The Soul Music of Sharon Jones and The Dap-Kings, published in November 2018. He is currently trying to complete a book on the life and work of Yoko Ono.