The Kafkaesque Court Battle Over Kafka's Literary Remains

In a new book, Benjamin Balint unravels the circumstances that led to the bitter fight over Max Brod's estate and the way it played out in courtrooms in Israel and abroad

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Portrait of Franz Kafka.
Portrait of Franz Kafka.Credit: De Agostini/Getty Images

Kafka’s Last Trial: The Case of a Literary Legacy, by Benjamin Balint

W.W. Norton, 288 pages, $26.95

How does a singular artistic revelation pass into mundane history? “Kafka’s Last Trial,” Benjamin Balint’s eloquent, insightful account of the long court battle over Franz Kafka’s literary remains, woven through with the story of that legacy’s formation, explores some of most challenging ethical problems of our time, while also sustaining the intrigue of a rich courtroom drama.

The story begins in the lobby of Israel’s Supreme Court, in Jerusalem, in the summer of 2016, at the climax of almost a decade’s worth of trials over the fate of the estate of Max Brod, the Prague-born writer who was Kafka’s close friend and his literary executor. At issue: the question of whether Brod’s estate, which included most of Kafka’s surviving papers, belonged to Eva Hoffe, the daughter of Brod’s last lover, Esther; or to the National Library of Israel. The moral intricacy of the case, along with the sense it conveys of mysterious, unplumbed depths sucking down at the surface of each critical scene, echoes the atmosphere of Kafka’s own work.

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Sometimes we also get glimpses of the kinds of institutionalized absurdities that made Kafka’s dark vision of life sporadically farcical. “I hope against hope,” Eva Hoffe remarked at one point during the exhausting trial. (Hoffe died early this August at the age of 84, two years after the court finally decided in favor of the National Library.) Balint, an American-born Israeli writer, notes that Hoffe’s words recall a celebrated remark Kafka made to Brod, after the latter accused him of pessimism: Kafka replied that, on the contrary, “our world is only a bad mood of God,” adding that there is “plenty of hope, an infinite amount of hope – but not for us.”

Certainly, the locus of hope in this saga is elusive. All sides to the dispute have a flawed claim on Kafka’s legacy – and all sides also have strong, historical-philosophical arguments supporting their respective positions. Even the terminology for defining legitimate possession of Kafka’s writings proves to be disjunctive in the trial, fluctuating jaggedly between the languages of love and law, and pitting the prerogatives of the collective Jewish people against those of the individual. “He over whom Kafka’s wheels have passed has lost forever both any peace with the world and any chance of consoling himself with the judgment that the way of the world is bad,” Theodor Adorno observed. The wheels of the court case over Kafka’s afterlife gouge their own harrowing track.

Brod had bequeathed his estate, with its enormous sheaf of Kafka’s letters, unpublished notebooks, draft texts and diaries, on varying, sometimes ambiguous terms to Esther Hoffe, the woman he considered his last surviving family member. Further complicating the ethical debate over ownership, everyone knew that if she prevailed, Eva meant to sell the Kafka documents to one of the world’s foremost repositories of literary history, the Marbach Archive, which already had an important Kafka collection – and which happened to be a German institution funded by German governmental authorities. The indignation felt by many people, especially inside Israel, at the idea of the German state inheriting the papers of a Jewish author whose writings seemed predictive of the smothering bureaucracies of a modernity that pointed the way to the Final Solution, was compounded by the fact that Kafka’s own siblings were murdered in the Holocaust.

‘I beg you to do this’

Setting the seal on the case’s complexity was Kafka’s own last set of instructions to Brod, expressed in two notes that Brod discovered in Kafka’s desk after the author’s death, in 1924. One of these notes declared that only six of his works, most of which had already been published, deserved to survive, while all his other writings, “without exception are to be burned, and I beg you to do this as soon as possible.” The other note, which Brod thought had been written subsequent to this request, ordered that “Everything I leave behind me … in the way of notebooks, manuscripts, letters, my own and other peoples, sketches and so on, is to be burned unread and to the last page.”

Kafka’s communications to Brod can’t be read as mere hyperbole. He spoke and wrote endlessly about his sense of total failure as a writer. “My doubts stand in a circle around every word,” he observed one place. When Brod’s wife Elsa asked Kafka to provide her with a work of his choice that she could present at a public reading, he condemned his entire oeuvre: “What’s the point of preserving such miscarried works, even if the miscarriage was artistic?” Dora Diamant, Kafka’s last lover, reported that in his final months he spoke to her of wanting to “burn everything that he had written in order to free his soul from these ‘ghosts.’” She acceded to his wish, so far as it lay in her power, by setting fire to many drafts and letters while he watched.

Kafka is far from the only eminent author to have sought the destruction of their own written corpus. Balint notes that Virgil was so unhappy with the Aeneid that he requested in his last days that the manuscript be burned. Samuel Clemens asked his brother and sister-in-law to shove his manuscripts into the stove to avoid the possibility of any “absurd ‘literary remains’ & ‘unpublished letters of Mark Twain’” being printed after his death.

But none of the other well-known writers wishing to immolate part or all of their literary legacies was as invested as Kafka in the philosophical necessity of failure, even as a key to literary production. “Anyone who cannot cope with life while he is alive needs one hand to ward off a little his despair over his fate,” Kafka wrote in his diary, “but with his other hand he can jot down what he sees among the ruins, for he sees different and more things than others.”

Nor did any of the other celebrated authors who called for their works to be burned designate an executor like Brod, who possessed the conviction that he could penetrate Kafka’s manifest instructions to discern the author’s true, unarticulated will. Brod’s calculation was that Kafka’s notes to him were likely to have been the product of a “temporary depression.” (The idea chimes with Kafka’s assertion to Brod that Creation itself was just “a bad mood of God.”) It wasn’t that Kafka wanted to keep any of his writing secret, Brod argued, but that he felt it was fatally incomplete because – despite its brilliance – it fell short of perfection. The standards Kafka judged his work by were not the standards of this world, and therefore, Brod decided, the world could not afford to abide by them, as Kafka himself recognized by choosing the worldly Brod as his executor.

All the debates concerning Kafka’s archives transpire in the shadow of that original violation, the contravention of Kafka’s decision to withdraw his legacy from circulation in deference to an unreachable literary ideal. Kafka, who once wrote that “the Messiah will come only when he is no longer necessary; he will come only on the day after his arrival,” was still waiting at the end for the messianic muse to redeem his oeuvre. Since the reprieve did not come, it’s post-Fall justice at best that can be rendered on his written remains.

Kafka’s antithesis

At every phase of the story, Brod’s behavior as Kafka’s friend, disciple and literary advocate, reveals him to be Kafka’s intractably earthbound foil. Sociable and ambitious, Brod sleeps with as many women as he can, with as little inner turmoil as anyone could aspire to, just as he strives to publish whatever he writes – and he writes constantly and copiously. Indeed, Balint raises the intriguing possibility that Brod’s personification of so many traits antithetical to Kafka’s own character – that utterly idiosyncratic compendium of vulnerabilities, neuroses, and visionary apprehension of the human condition – may have lent itself to the construction of Kafka’s fictional universe. “Was Brod an accidental companion to Kafka’s writing, or was he somehow internal to its motions?” Balint asks.

Eva Hoffe, despite being Brod’s heir, makes the case for treating the material legacy of great artists as ordinary, if valuable property against the quasi-mystical fetishization in which nation-states and individual followers of a personality cult are apt to indulge. While waiting for the verdict of her case, she takes scornful note of a newspaper headline about a lock of David Bowie’s hair going up for auction as though it were a religious relic. Hoffe also views the entire attempt to position Kafka as a Jewish writer as “ridiculous,” claiming that he “wrote from his heart, inwardly,” and “did not love his Jewishness.” Even were he to be considered a Jewish writer, she notes, the archives of countless Jewish authors are housed in countries other than Israel. Indeed, everything about Kafka’s hyper-sensitive character suggests to Eva that “Kafka wouldn’t last a day here.” As for the key argument made by her legal adversaries that whatever legitimacy Brod’s behest to Esther Hoffe might possess stopped with Esther herself and so didn’t transfer to Eva, whom Kafka never knew and would never have selected to dispose of his work for posterity, Eva asks: “Is someone who receives a Picasso as an inheritance and wants to sell it prohibited from doing so because he didn’t know Picasso?”

The National Library of Israel’s justification for seeking to expropriate almost all of Kafka’s writings from Eva was, on the other hand, steeped in the language of transcendent legitimacy. As the library’s chairman sums up matters during the trial, “The library does not intend to give up on cultural assets belonging to the Jewish people.” Whether in relation to famous works like the Elgin Marbles at the British Museum, or more obscure indigenous artifacts in foreign collections, the idea that an object might possess sacrosanct terror is being tested worldwide, but once again the particulars of the case for holding Kafka’s manuscripts in Israel has a unique, essentially theological inflection. Neither the writer nor the work actually came from Israel for starters.

Kafka’s views on the contemporary State of Israel can no more be ascertained than can his opinion of Eva Hoffe. The case’s singular temporal complexities further tangle the dilemma. Just as Israel’s claim to be the rightful home of Jewish cultural assets is more controversial now than it would have been a generation ago because of the broadening repudiation of state policies by Diaspora Jewry, the argument that present-day Germany retains a level of mortal culpability that debars it from the right to assert any definitive claims on objects deemed Jewish cultural artifacts pushes toward the notion of inherited guilt. While legal perspectives almost invariably possess an element of contingency, here the historical context remains too hot to rationally accommodate.

Kafka himself certainly had his doubts about the pre-state Zionist project, writing one place, “I admire Zionism and am nauseated by it.” When Brod invited Kafka to consider becoming the editor of Martin Buber’s Zionist monthly, Der Jude, Kafka asked how he could be expected even to consider such a prospect, “with my boundless ignorance of things, my lack of connection with people, the absence of any firm Jewish ground under my feet. No, no.”

Humiliation and powerlessness

The resistance cut both ways. Balint details the compelling reasons why Israel’s interest in Kafka was so belated relative to that of other countries around the world. All of Kafka’s engagement with the inevitability and spiritual integrity of failure was anathema to builders of the Jewish state who saw the creation of a new, physically triumphant Jewish self as integral to the country’s prospects for success. Kafka’s trademark themes of “humiliation and powerlessness, anomie and alienation, debilitating guilt and self-condemnation” were precisely the preoccupations Israel’s founding generation sought to rise above, Balint writes. This bias severely delayed the translation of Kafka’s writings into Hebrew, just as it hampered scholarship of Kafka’s work at Israeli universities.

The library’s argument for its right to stewardship was, moreover, compromised by its negligent treatment of that part of Brod’s archive already in its possession, which had led to the misplacement and accidental discarding of numerous important writings by him. On a more foundational level, there was also a debate as to whether the National Library had the requisite degree of expertise in German languages and literature to properly curate Kafka’s work. The library angrily rejected the imputation of any such deficiency – but of course it was impossible to argue that its resources were comparable to those available at a German archive entirely dedicated to German literary and intellectual history.

On the face of it, Marbach clearly seemed to be the most technically proficient, politically disinterested future home for Kafka’s manuscripts. Its ample financial means ensured that scientific and human resources would continue to be deployed to preserve Kafka’s legacy far beyond what Israel could commit at any point in the foreseeable future. However, as Balint notes, Marbach’s position also reflected the strength of a majority culture. “Only those who have fulfilled their interests can speak in a ‘disinterested’ way, and only those who have accumulated literary capital can allow themselves the luxury of persuading themselves of the pure timeless universality of literature.” Kafka himself had expressed a poignant understanding of the disadvantageous position Jews found themselves in on this score – and a sympathy for how they responded to their predicament: “The insecure position of Jews, insecure within themselves, insecure among people, should explain better than anything else why they might think they own only what they hold in their hands or between their teeth, that furthermore only tangible possessions give them a right to live.”

The most provocative questions posed by Balint’s book concern not just the ownership of truth, but truth’s transmission through time. Walter Benjamin once asserted that Kafka’s writing addressed the problem of truth in an age when truth had lost all consistency. While most people were clutching ever tighter to their private convictions, Kafka had “sacrificed truth for the sake of clinging to transmissibility.” Just as Kafka told Dora that he wanted to burn his writing to rid himself of ghosts, much of his work seems to grapple with problems in the prehistory of our chain of transmission. In one famous epistolary essay, Kafka challenged his father for having failed to pass on the content of Jewish tradition even while forcing him to engage with its outward authority. Kafka implied that once the deeper stratum of knowledge is gone, all that’s carried forward through time is the archaic impulse of violence against the next generation – against temporal change as such, whether born of the patriarchal tribe or the most atavistic aggressions of animal biology.

To truly extinguish our own guilt, we’d have to kill our fathers, not in order to supplant them, a la Oedipus, but to preempt our ever having been conceived. If Kafka’s manuscripts are “ghosts” that need to be destroyed, they are, in some sense, Kafka’s creator, rather than the other way around, an idea that resonates with his remark in a letter to Felice, “I am made of literature. I am nothing else, and cannot be anything else.” But by proving unable to carry out this act of violence himself, assigning the task to his fanatically life-affirming admirer Brod, Kafka submits to the perpetuation of his failure through time.

At one point while working on “The Trial,” Kafka agreed to read the first chapter to Max Brod and a few other companions. “We friends of his laughed immoderately,” Brod reported. “And he himself laughed so much that there were moments when he couldn’t read any further.” The scene calls to mind another remark by Walter Benjamin: “I think the key to Kafka’s work is likely to fall into the hands of the person who is able to extract the comic aspects from Jewish theology.” In this sense, perhaps, Kafka’s sublime awareness of his own failure does offer a kind of redemption – if not from judgment, then from despair: a redemption without hope. Instead of breaking the chain of succession, he shakes it with laughter at God.

George Prochnik’s most recent book is “Stranger in a Strange Land: Searching for Gershom Scholem and Jerusalem” (Other Press). He is an editor-at-large for Cabinet Magazine.