Kafka and Posner
Twenty years ago this month, the Harvard Law Review ran a fascinating article by Robin West on Posner and Kafka. Since that time, both of West and Posner have remained significant legal figures. I think it best to provide you the citation, and Robin West’s own words:
AUTHORITY AUTONOMY AND CHOICE: THE ROLE OF CONSENT IN THE MORAL AND POLITICAL VISIONS OF FRANZ KAFKA AND RICHARD POSNER, 99 Harv. L. Rev. 384(1985).
“Posner concludes that the legal world should be governed by one overarching normative principle: the legal system ought to give people exactly what they think they want or, when that is not possible, what the legal system thinks they think they want. By doing so, Posner argues, the legal system will promote a more autonomous and wealthy world.
Through a series of contrasts, I will argue that Franz Kafka’s fictional works on the nature of law dramatize a dark underside of Posner’s argument that the fact of consent morally legitimates our legal, social, and personal worlds. Kafka’s fictional characters typically consent to market transactions, employers’ imperatives, and legal and familial authority, and thereby get exactly what they think they want. In Kafka’s fictional and horrific world, as in Posner’s theoretical and ideal one, victim, aggressor, and community all regard this consent as validating otherwise unappealing states of affairs. Consent insulates these situations from moral criticism and renders them, without more, morally attractive. In both worlds, consent is a moral trump. Kafka’s fictional world thus provides a dramatic enactment of Posner’s normative claim: Posner argues that consent morally legitimates all; Kafka illustrates what a world so legitimated might look and feel like. In both worlds, good and evil, and right and wrong, lose all meaning when all that matters is whether and to what extent people get exactly what they think they want.”
[Stephen Safranek]