Benjamin Balint, Kafka’s Last Trial:
The Case of a Literary Legacy (W.W. Norton & Co.)
Franz Kafka is today known for his terrifying vision of faceless bureaucracies and irrational state power. Some see in Kafka’s most famous works an eerie foreshadow of the totalitarian horrors of Nazi Germany and Soviet Russia. The English poet W.H. Auden once remarked that Kafka was to his age what Dante, Shakespeare and Goethe had been to theirs. But when he died of tuberculosis in 1924, just short of his 41st birthday, Kafka, German-speaking, Jewish and Czech, was a writer of no particular acclaim. He had yet to complete a single novel and the little he had published had failed to attract significant attention.
As he approached death, Kafka instructed Max Brod, his long time friend and literary companion, to burn his remaining papers, including manuscripts, diaries and letters. This was typical of Kafka, who was plagued with deep-rooted anxiety and feelings of inadequacy throughout his life, feelings that animated his unfinished novels and other works. Fortunately, Brod ignored Kafka’s directive and not only preserved but also edited significantly the Kafka papers. Many went on to be published, including The Trial and The Castle, now considered among the 20th century’s most consequential novels.
Brod, also German-speaking, Jewish and Czech, fled his native Prague with his wife Elsa in 1939 while carrying the Kafka papers in a suitcase, barely a step ahead of the Nazi annexation of Czechoslovakia. He wound up in Tel Aviv, where he became a close friend of Ilse Hoffe, another German-speaking Jew from Prague, along with her husband Otto and their two young daughters, Eva and Ruth. Ilse, who at Brod’s suggestion changed her first name to the Hebrew Esther, became Brod’s personal secretary, albeit without a regular salary. Rather, Brod, during his lifetime, as a form of compensation bequeathed the Kafka papers still in his possession to Esther as a gift. After Brod’s death in 1968, Esther in turn bequeathed the papers to her two daughters, Eva and Ruth, with the proviso that during her lifetime, she retained the right to publish and sell the papers.
When Esther died in 2007 at age 101, Eva and Ruth sought to probate their mother’s will. But before the court acted on what Eva and Ruth thought would be a routine request, the Israeli National Library in Jerusalem intervened to assert a proprietary interest in the Kafka papers. To further complicate the proceeding, the Literature Archive in Marbach, the German counterpart to the Israeli National Library, also intervened. Each contended that it was the appropriate repository for the papers. The case continued in Tel Aviv Family Court for five years, after which it progressed through higher levels within the Israeli judicial systems, up to the Israeli Supreme Court. Not until 2016 did the case become final.
At the heart of these proceedings was a single, perplexing question: to whom did the Kafka papers belong? From one angle, the question was narrowly legal, involving Brod’s intent in bequeathing the Kafka papers to Esther as a gift in her lifetime; Esther’s intent in making a subsequent lifetime conveyance to her daughters; and the legal effects of both conveyances (Kafka’s intent was both clear and irrelevant). These issues will be attractive to present and former law students, familiar with the exercise of teasing the intent of dead people out of complex and ambiguous factual situations. But the courts also approached the question from a broader angle, one likely to be more engrossing to more readers: with the presence in the litigation of the Israeli National Library and the German Marbach Archive, the courts found themselves with little choice but to embark upon a search for Kafka’s literary soul and determine whether that soul might be considered either Israeli or German.
Neither the Israeli National Library nor the Marbach Academy presented an overly compelling case that it was the appropriate repository for the Kafka papers. Kafka never set foot in Palestine, the predecessor to Israel, and Judaism played no evident role in his writings. Nor was Kafka a German national. He only wrote in that language, like an American or Australian writing in English, a Belgian or Québécois in French, or a Peruvian or Bolivian in Spanish, but with the hardly insignificant qualification that Germany had both invaded and annexed his native country and was responsible for the deaths of his three sisters and other family members in the Holocaust.
The fate of the Kafka papers in the Israeli courts makes for a story that their deceased author would likely have found suitable for a novel – a story for which the adjective “Kafkaesque” seems unavoidable (“having a nightmarishly complex, bizarre, or illogical quality,” according to Merriam-Webster, “often applied to bizarre and impersonal administrative situations where the individual feels powerless to understand or control what is happening”). Benjamin Balint’s aptly titled Kafka’s Last Trial: The Case of a Literary Legacy tells that story with aplomb, skillfully moving back and forth between the 21st century litigation and its 20th century predicates: Kafka’s own life, his relationship with Brod up to his death, Brod’s efforts to keep the Kafka flame alive before his flight from Prague, and his new life in Tel Aviv with Esther and the Hoffe family.
The story involves a three-person chain of custody for the Kafka manuscripts. After having “so vitally linked Brod to his former heyday in Prague,” by the 1950s the manuscripts “began to link Brod with Esther – the currency of their relationship” (p.195). Then, when Brod, who had been like a second father to Esther’s daughters Eva and Ruth, died in 1968, the manuscripts became a part of the relationship between Esther and her two daughters. Ruth died during the litigation, in 2012, making Balint’s story as much about Brod, Esther and Eva as it is about Kafka. But the competing claims of the Israeli National Library and he Marbach Archive highlighted the fraught relationship between Germany and Israel in the aftermath of World War II.
These competing claims, Balint writes, “threw into stark relief the very different ways Israel and Germany remain freighted by their ruptured pasts and by the noble lies on which their healing depended” (p.223-24). Both brought to the judicial proceedings a “concern about their respective national pasts. . . [B]oth sought to use Kafka as a trophy to honor those pasts, as though the writer was an instrument of national prestige” (p.8). The litigation offered a lesson in “how Germany’s claim on a writer whose family was decimated in the Holocaust is entangled with the country’s postwar attempt to overcome its shameful past,” while reawakening in Israel a long-standing debate about Kafka’s “ambivalence toward Judaism and the prospects of a Jewish state – and about Israel’s ambivalence toward Kafka and toward Diaspora culture” (p.223-24).
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Max Brod, born in 1884 in Prague, met Kafka when both were students at Charles University in Prague. Brod, Balint observes, was as exuberant and outgoing as Kafka was inward looking. With his “joie de vivre, alive with surplus energies,” Brod “radiated a verve, vitality and communion with human life lacking in Kafka” (p.20). Of a “sunnier temperament, less divided against himself,” Brod appeared “free of the kind of self-doubt that accompanied Kafka’s pitiless self-scrutiny” (p.20). Whereas Kafka seemed to care little about worldly success, Brod was “consumed with his own ambition” (p.20).
During Kafka’s lifetime, Brod was by far the more successful writer, producing poetry, treatises, 20 novels and a variety of “polemical broadsides” (p.25). Unlike Kafka, Brod was a staunch Zionist whose novels were “suffused with Jews and Jewishness” (p.86). Early in their relationship, Brod perceived Kafka’s potential literary genius and “obsessively collected anything that Kafka put his hand to. Kafka, in contrast felt the impulse to shed everything” (p.25-27). Acknowledging Kafka’s incapacity for self-promotion, Brod “came to serve as his friend’s advocate, herald, and literary agent” (p.28).
Rather than obey Kafka’s directive that all his papers be burned, Brod in the decade following Kafka’s death in 1924 dedicated himself with a “singular passion to saving the manuscripts and rescuing Kafka from oblivion,” transforming himself into the “greatest posthumous editor of the twentieth century” (p.132). Brod twice rescued Kafka’s legacy: “first from physical destruction, and then from obscurity” (p.133). The Kafka we know today is almost entirely the creation of Brod. Without Brod, “there would be no Kafka,” Balint writes. “We cannot help but hear Kafka’s voice through Brod” (p.133). But without Kafka, he emphasizes, Brod, the “curator of Kafka’s posthumous fame,” would have “long since faded from public memory” (p.135).
Not long after he arrived in Tel Aviv, Brod met the Hoffe family, Otto and Ilse (Esther) and their two daughters, Eva and Ruth. In the early 1940s, Otto and Esther had taken their daughters out of Prague “on a holiday,” as they told them, never to return. After a stop in Vichy France, the family of four ended up in Tel Aviv. Brod was then grieving from his wife’s recent death, and became close to the Hoffe couple and their children. All felt like outsiders in Tel Aviv. Brod at one point suggested that Esther help him inventory the papers he had carried from Prague in his suitcase. Esther went on to work regularly at Brod’s apartment, becoming, in Brod’s words, his “creative partner,” “stringent critic,” and “rescuing angel” (p.195).
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On two separate occasions, in 1947 and 1952, Brod noted in writing that he had gifted to Esther “all the Kafka manuscripts and letters in my possession” (p.195). He added in the 1952 note that he and Esther had “jointly” deposited this material in a safe in 1948. Esther acknowledged the gift by a writing in the margins of the 1952 note. Brod also executed two wills, in 1948 and 1961, both of which named Esther as his sole heir and executor, bequeathing to her all his possessions. In the 1961 instrument, Brod instructed that after her death his literary estate – not the Kafka papers — should be deposited in the Hebrew University of Jerusalem, the municipal public library of Tel Aviv, or another public archive in Israel or abroad, with Esther to determine which institution and under what conditions. Neither instrument mentioned the Kafka papers, indicating that Brod did not consider them part of his estate, having already been gifted to Esther.
In April 1969, a half year after Brod’s death, Tel Aviv District Court granted probate to Brod’s last will and appointed Esther as executor of his estate. In 1970, Esther in turn formally bequeathed the Kafka manuscripts to daughters Eva and Ruth as gifts, in equal portions, but retained substantial rights over the papers, including the right to dispose of them as she, Esther, saw fit. So the matter stood until 1973, when the State of Israel, concerned that Esther might seek to sell Kafka’s manuscripts abroad, sued Esther for possession of the Kafka papers.
Under applicable Israeli law, the State’s Archivist was empowered to prevent the removal from Israel of privately owned records that are of “national” value and which, “irrespective of where they are found, are deemed relevant to the study of the nation’s history, its people, the state, and society” (p.200). The court rejected Israel’s claim, ruling in January 1974 that Brod’s last will “allows Mrs. Hoffe to do with his estate as she pleases during her lifetime” (p.10). Esther then auctioned off some Kafka letters and postcards in 1974. In 1988, she put the 316 page original of Kafka’s 1914 draft of The Trial up for auction at Sotheby’s in London. It sold for £1,000,000, at the time the highest price ever paid for a modern manuscript. The sale precipitated no reaction from Israeli state authorities.
After Esther’s death at age 101 in 2007, Eva and Ruth went to Tel Aviv Family Court to seek probate of their mother’s will, which had been executed in 1988. The will noted that Esther had already given the Kafka manuscripts to her daughters as gifts. Anticipating a routine proceeding, Eva was stunned when a lawyer for the National Library appeared, contending that Brod’s will had been misconstrued in the 1974 decision (the Library challenged the 1974 ruling under an article of the Israeli succession code that allows an interested party to ask for the amendment of a probate order on the basis of facts that have come to light since the original order, even if the party did not participate in the original proceeding). The Library argued that Brod had left the papers to Esther as an executor, not as a beneficiary. Brod intended Esther to have them only in his lifetime; when he died, he intended that they go to a public archive. The manuscripts were therefore never Esther’s to give, and she could not now pass them on to her daughters — essentially a repeat of the arguments the court had rejected a third of a century earlier. Esther had betrayed Brod’s will, the lawyer contended, “much as the Brod had betrayed Kafka’s” (p.34).
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The German Literature Archive in Marbach, the world’s largest archive of modern German literature, is a state-of-the-art facility for cataloging and preserving papers. It houses the papers of several writers who had been persecuted by the Nazis. It entered the litigation when it was negotiating with Esther to buy at least some of the papers, hiring a top Israeli lawyer who contended that the proceedings were a pretext for an Israeli seizure of private property. If Israel were acting in good faith, he argued, it would negotiate with Eva rather than try to expropriate the papers through litigation.
In support of its claim to be the natural home of Kafka’s papers, the Marbach Archive reminded the court that German literature, not the Jewish tradition, “indisputably constituted Kafka’s cultural canon” (p.156). Even Kafka’s austere writing style was “inseparable from – and made possible by – the German language” (p.157). Kafka wrote in what Balint terms a “merciless German that pares away superfluity and slack” (p.157; Brod once described Kafka’s prose as “fire” which “leaves no soot behind” (p.157)). Germany’s claim to the papers, moreover, was an outgrowth of the critical role which literature had played in forging German cultural identity. Long before the birth of the unified German state in 1871, German language and literature acted “not just as a vehicle of communication but as a crucible of national cohesion.” To a degree unthinkable elsewhere, “literature has played – and continues to play – a consolidating role in helping Germans come to terms with their Volkgeist” (p.160).
The Israeli National Library’s attorney argued that there was “something obscene in the argument that the papers ‘belong’ in Germany, the country of the genocidal perpetrators, the country that gave unprecedented mechanized form to man’s inhumanity to man” (p.79). But the library still had to support its somewhat amorphous contention that Kafka was a “touchstone of ‘Jewish culture’” (p.90). It was able to point to some affinities to Zionism that Kafka had manifested as a young man, and demonstrate that he was not indifferent to Judaism so much as confounded by it.
Before World War I, Kafka attended Zionist activities in Prague, as well the 11th World Zionist Congress in Vienna in 1913. He took courses on the Talmud and was able to speak and write in Hebrew. He once wrote to one of his earliest loves, Felice Bauer (a distant cousin of Brod) about the “dark complexity of Judaism, which contains so many impenetrable mysteries” (p.62). Among the items that Brod found in Kafka’s papers after his death was an unsent 100-page letter to his father on how Judaism, rather than bringing the two together, had actually driven them further apart. While we “might have found one another in Judaism,” Kafka was prepared to tell his father, the flimsy vestiges passed along to him were an “insufficient scrap. . . a mere nothing, a joke . . . It all dribbled away while you were passing it on” (p.93).
But several factors undermined Israel’s cultural claim on Kafka. In all of Kafka’s fiction, there is “no direct reference to Judaism. One searches in vain for Jews, or Jewish patterns of speech, in Kafka’s placeless fiction” (p.86). There was never a Kafka “cult” in Israel comparable to that in Germany, France or the United States. In marked contrast to Germany, there are no streets in Israel named after Kafka. Israel was one of last countries to translate Kafka into its national language. To this day, there is no Hebrew edition of Kafka’s complete works. For many years, there were no German language or literature courses at the Hebrew University in Jerusalem. Even today, Germany funds these departments.
While Kafka’s cool reception in the Jewish state might be explained as a generalized resistance toward German language and literature, associated with Nazi barbarity, the better view for Balint lies in a widespread aversion to Diaspora culture in Israel. The underpinnings of Kafka’s work — humiliation and powerlessness, anomie and alienation, debilitating guilt and self-condemnation — were the “very pre-occupations Israel’s founding generation sought to overcome” (p.112). Balint surmises that Kafka exemplified to Israelis the “political impotence and passivity – the pessimism that flows from a sense of one’s powerlessness – that Zionists so vehemently rejected” (p.110-11).
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It was not until 2012, a half year after Eva’s sister Ruth died, that the Tel Aviv Family Court issued a 59 page opinion, which began by noting that a “simple request filed by the plaintiffs, the daughters of the late Mrs. Esther Hoffe, to execute her will” had “opened a portal onto the lives, desires, frustrations – indeed the souls – of two of the twentieth century’s great sprits” (p.74). The court’s decision was appealed to the Tel Aviv District Court, where it remained until June 2015. The Israeli Supreme Court then heard the case and rendered its decision in 2016.
Among its many ironies, the litigation had exposed a proprietary attitude over the legacy of a writer whom Balint describes as “bound up in the refusal to belong to a fixed abode” — a writer who “untethered both himself and his writing from the comforting anchors of national or religious belonging” (p. 226-27). Balint concludes his cogent analysis by noting that although the Israeli judges had reached a verdict in this irony-riddled case, the “symbolic trial over Kafka’s legacy has yet to adjourn” (p.219).
Thomas H. Peebles
La Châtaigneraie, France
April 27, 2019