SOURCE: Ward, Ian. “Law and Justice in the Modern Novel: The Concept of Responsibility.” In Law and Literature: Possibilities and Perspectives, pp. 142-56. Cambridge: Cambridge University Press, 1995.

[In the following essay, Ward explores Kafka's The Trial and Camus's The Outsider as texts useful in the literary and legal study of the concept of responsibility.]

There is no doubt that modern literature has been more extensively used by law and literature scholars than any other literary source. It does not, then, represent a particularly new perspective. There are, of course, certain contemporary ‘modern’ texts which are fresh, and I will look at a couple of these in the final two chapters of this book. However, in this chapter I want briefly to provide an example of how modern literature can be used as a means of accessing certain key concepts in contemporary critical theory and critical legal scholarship. The concept which I shall consider in this chapter is responsibility.

RESPONSIBILITY IN MODERN LITERATURE

Two texts which have proved to be particularly popular in law and literature scholarship are Kafka's The Trial and Camus's The Outsider. The specific concept of responsibility, however, has not received any especial notice. Richard Weisberg used Camus's novels as representative of Nietzschean ressentiment.¹ While admitting the force of the argument that the novels of both Camus and Kafka do present the nihilism of despair, I would suggest that they also reveal the possibilities of responsibility and self-assertion. Most importantly, these texts are not significant for what they might or might not tell us about the specifically legal situation: Austro-Hungarian or French civil procedure. What The Trial and The Outsider actually do is to use the legal situation, and its peculiarly intense concern with motivation of the individual, as a medium for describing the human condition. This is why Weisberg, in particular, has concentrated on the interaction between the Examining Magistrates, representing the ‘ethics’ of the community and the individual ‘hero’ of the novels. This approach places the reader in the position of juror, or participant in the actual events—the reader contributes to the narrative. Camus has no interest in any particular situation, but he is aware that this intensity, intrinsic to any legal situation, furnishes a particularly powerful parable that can be used to describe the human condition. This is why the drama of such narratives is reduced to a minimum, so that the reader, as he or she adds more and more of his or herself to the story, becomes ever more aware of his or her own guilt and despair. This, in turn, leads not only to an awareness of despair, however, but also to an awareness of the responsibility for this despair and thus, ultimately, to hope. The guilt that Camus isolates is the guilt of abrogating the responsibility of self-assertion. Thus in the trial scene in The Outsider, as Mersault tries to come to terms with his own guilt, it is not guilt for the murder of the Arab, but guilt at having submitted to the alienation of the human condition and the abandonment of hope that Mersault comes to understand. With the trial, Mersault, for the first time, becomes ‘involved’ in life, and for the first time has to justify his existence, not so much to the court as to himself. In his final outburst before his execution, Mersault finally acknowledges his guilt and cries out for a hatred compatible with it. The most important statement that Camus made with regard to The Outsider is in the ‘Afterword’, written thirteen years after publication:

So for me Mersault is not a reject, but a poor and naked man, in love with a sun which leaves no shadow. Far from lacking all sensibility, he is driven by a tenacious and therefore profound passion, the passion for an absolute and for truth. This truth is as yet a negative one, a truth born of living a feeling, but without which no triumph over the self or over the world will ever be possible.²

Mersault was ‘an outsider to the society’, but that is a constituent of the human condition. It is not, however, determinative of it. Weisberg sees Mersault as irreducibly alienated, and the fact that he is ‘innocent’ only adds to the tragedy. But for Camus it is not a question of innocence or otherwise. What is important is that Mersault is true to himself, and it is that which makes The Outsider not a story which can tell a lawyer much about criminal procedure in North Africa in the 1940s, but a story which can portray human existence as a condition of hope. Richard Weisberg, who wishes to portray Mersault as a figure of irreducible pessimism, would respond that it is not what the writer intended that matters, but what he wrote. Weisberg believes that in modern society, the lawyer is uniquely positioned to use words in order to disguise the truth and to cause harm.³ To some extent this is indeed what Camus suggests, but Camus is also suggesting that what matters is not only what the lawyer or the magistrate does, but also what the individual chooses to do.⁴ Camus's interpretation of his own work is at least as valid as anyone else's, and better reflects the cultural atmosphere in which the novel was created because it appreciates that ressentiment is only the catalyst for the twentieth century and not its definition. Moreover, if the most immediate context for literature is the writer's context, then there is much to be gained from ascertaining precisely the cultural context that Camus perceived. If The Outsider is not ultimately a literary manifesto of hope then Camus presented a narrative fundamentally at odds with his own philosophy. In The Myth of Sisyphus, he suggested that the ‘absurdity’ of the human condition, as an ultimately finite condition, was not a factor in determining that condition as either hopeful or desperate, but instead as a matter of self-determination or responsibility. Nothing intrinsic to the human condition precludes happiness and, indeed, in Camus's opinion, literature was a prime means of describing and enhancing this possibility. For the modern man, the ‘work of art’ is ‘the sole chance of keeping his consciousness and of fixing its adventures’. The only sure way of self-assertion is creation, and art is the only authentic means of creation. Camus himself uses his interpretation of the actual ‘myth’ of Sisyphus to describe his own ultimate philosophical position: ‘Sisyphus teaches the higher fidelity that negates the gods and raises rocks. He, too, concludes that all is well. This universe henceforth without a master seems to him neither sterile nor futile. … The struggle towards the heights is enough to fill a man's heart. One must imagine Sisyphus happy.’⁵

Kafka's The Trial has perhaps attracted more attention from law and literature writers than any other novel. Kafka's world appears to be uncompromisingly bleak, and it is not easy to dispel this image. However, one famous section, the parable of the doorkeeper in chapter nine, is Kafka's attempt to make the same point as Camus. In this chapter, the priest tells Joseph K. a parable, where a man comes ‘before the Law’, described as a door guarded by a doorkeeper. At the man's enquiry the doorkeeper refuses entry, simply suggesting that future entry might be ‘possible’. The door to the law ‘stands open’, and the man is clearly tempted to enter, but the doorkeeper warns him that there are many more doors and each is guarded. Kafka implies that admittance to the law is a never-ending process. The man, who had expected permission to enter through the door, is taken aback and takes a seat offered to him outside the door. There he waits, in occasional conversation with the doorkeeper, until he finally asks: ‘Everyone strives to attain the law … how does it come about, that in all these years no one has come seeking admittance but me?’ This is the man's final question, so the doorkeeper ‘bellows in his ear’: ‘No one but you could gain admittance through this door, since this door was intended only for you. I am now going to shut it.’ The law is the man's, and the decision to access it was also the man's. His failure to do so was a failure to take responsibility, and his ultimate demise, to waste his life in futile ‘hope’, was also his responsibility—and possibly ours. The parable serves as a parable of the entire novel. K. himself consistently fails to take responsibility. On the priest finishing the parable, K. immediately comments: ‘So the doorkeeper deluded the man.’ In making this statement K. betrays his own condition of continuing delusion. The manner of K.'s death, in the final chapter, at the hands of others and ‘like a dog’, affirms that K.'s ultimate fate, like that of us all, is futile, devoid of self-assertion. However, it can equally well be seen as making the same statement as Mersault's final exclamation; an ultimate recognition both of his own failings of responsibility and of the appropriateness of his death. Either way, for many, including Maurice Blanchot and Jacques Derrida, the parable is chiefly about one thing—taking responsibility.⁶ Camus certainly thought that both he and Kafka were describing essentially the same thing, for ‘the more tragic the condition described by Kafka, the firmer and more aggressive that hope becomes’. As Camus and subsequently Erich Fromm have suggested, the degree of guilt in The Trial is dependent upon the nature of the duality of the human condition, internal and external, as represented by the moral and civil law. Guilt does not define the condition, and does not preclude hope. As far as Camus is concerned, both he and Kafka are writing to describe the human condition as one of hope determined by the possibility of self-assertion and the recognition of the responsibility to do so.⁷

RESPONSIBILITY IN HEIDEGGER'S POLITICAL THOUGHT

What Camus and Kafka were describing, the responsibility of self-assertion, was not only mirrored in contemporary philosophical writings, but was done so in a way which again used both the concept and the word of law as a metaphorical catalyst. Martin Heidegger only rarely made statements about political or legal issues. However, during his brief flirtation with Nazism in early 1933, he made a series of statements about the nature of a National Socialist ‘law’, the most famous of which was presented in the Rektorat, given to the students of Freiburg University on 27 May 1933. In this address, ‘The Self-Assertion of the German University’, Heidegger states that, ‘[t]o give the law to oneself is the highest freedom’.⁸ Before considering the meaning of this statement, it is important to establish a context. In ‘Facts and Thoughts’, composed shortly after the war, Heidegger emphasised the importance with which he had perceived his position at Freiburg. Heidegger wanted to be nothing less than the spiritual Führer of National Socialism. He wanted to revolutionise the German university, and German society with it. Heidegger's rectorship thus represented, albeit perhaps briefly, a determination to define the nature of the National Socialist ideal in the real political situation.⁹ The entire Rektorat has generated considerable controversy. For a time a number of Heideggerian apologists, going directly against Heidegger's own wishes, tried to dismiss the address as ‘inauthentic’ Heidegger, or as some sort of political aberration. However, as the ‘Heidegger debate’ has returned to prominence during the last few years, the consensus of opinion has been that Heidegger's statements during 1933 cannot be ignored or dismissed, and indeed for many, including Derrida and Habermas, they represent the purest application of Heidegger's philosophy.¹⁰

Heidegger advocates a reawakened awareness of the power of self-assertion and the possibilities that the acceptance of responsibility can generate. This self-assertion can only be if ‘we know who we ourselves are’. In his 1935 Nietzsche lectures, he admitted that the correlation between the essential determination of man and the essence of truth ‘was the impulse for the treatise Being and Time’, continuing, ‘[t]hrough Being itself the essence of man is determined from the essentializing of the truth of Being’.¹¹ This was also the ‘impulse’ behind the Rektorat; the ‘self-assertion of the German University’, he emphasised, ‘is the primordial will to its essence’. ‘Essence’ represents a central Heideggerian construct, something ‘authentic’, and above all, for the Heidegger of 1933, something potentially determinative. Throughout the address Heidegger continually compares the truly ‘essential’ with the complacency of a contemporary scientised Wissenschaft. The new ‘constitution’ which he presented to the students represents a rejection of its metaphysical structures. Dasein, the there-ness of being, was presented in Being and Time as a temporally determinative construct designed to overcome this metaphysics.¹² This determination or ‘presencing’, in the Lichtung, representing truth and unconcealment, expresses ‘self-assertion’, and necessitates the taking of responsibility. German students, and indeed the German people, were to ‘assert’ themselves, and to come to ‘presence’, as a cultural and historical people, so that they could ‘give’ the law to themselves; this would be an ultimate act of responsibility. In this sense, the ‘self-assertion’ would be at once the first step towards ‘presencing’, and its culmination, or to use the phrase which Heidegger took from Kierkegaard, its ‘re-trieval’; what Derrida describes as ‘the entry on stage of spirit itself … again’.¹³ The early Heidegger was still able to cling to the ambition of ‘re-trieving’ an ‘authentic’ law, which he urged the German people to do. In political terms he was advocating an abandonment of the liberal Wissenschaft of rights or Recht, and putting in its stead the self-assertion of National Socialist Geist. The idea that this ‘self-assertion’ would represent the ‘highest freedom’ refers, in part, back to the Lichtung metaphor, because only in this ‘space’ or ‘lightness’ of ‘essential’ Being could freedom be located. But it also refers Heidegger back to his first and enduring encounter with Kant, and the third antinomy of freedom, around which Kant constructed his critical philosophy.¹⁴

Towards the end of the address, Heidegger consciously and uncompromisingly dismisses the classical metaphysical idea of freedom, ‘for this freedom was not genuine, since it was only negative’. In its place Heidegger presented a ‘freedom’ that was a freedom to accept responsibility, and to embrace the ‘spiritual mission’ of self-determination.¹⁵ Heidegger made a series of similar collateral statements with regard to law in the abstract sense during this period of political flirtation. During the summer of 1933, in his course ‘The Fundamental Questions of Philosophy’, he commented that ‘the fundamental Question’ was ‘the Question of law and the structure of Being’.¹⁶ As Derrida has noted, the isolation of the Question as one of law and Being represented the political-philosophical development of Heidegger's thought during this period. Increasingly the two were being regarded as one, and the need for the people to reassert their own ‘law’, in other words the responsibility for their existence within a community or Volk, became a central theme in Heidegger's writings during this period. To use Heidegger's own favourite metaphor, if ‘essence’ was to be found in the ‘space’, or Lichtung, then its ‘re-trieval’ would be done by following the ‘pathways’ or Holzwege to this ‘space’. The guides for this journey would be the Questions of Being and of law. If the ‘essence’ of individual Being was properly appreciated, and the relationship between the individual and the ‘authentic’ community redefined then, for the Heidegger of 1933, the political ideal of National Socialism could be attained.¹⁷ Even after his encounter with Nietzsche, Heidegger still refused to abandon altogether this ideal, and despite various pleas from disciples such as Marcuse he consistently refused to make an act of ‘recantation’, instead suggesting that his was the ‘authentic’ National Socialism, and that the reality of National Socialism had been nothing but a metaphysical sham. According to Phillippe Lacoue-Labarthe, Heidegger devoted the rest of his life to ‘re-trieving’ his own National Socialism.¹⁸ As Blanchot has noted, in Heidegger's opinion, Hitler had abandoned National Socialism when he had abandoned the politics of ‘responsibility’.¹⁹

RESPONSIBILITY IN CRITICAL THEORY

The extent of literature on the various influences of the Heideggerian project is vast, and well beyond the scope of this chapter. Our necessarily limited purpose is to simply explore the extent to which contemporary critical legal thought has developed as part of the Heideggerian project, most particularly from this concept of responsibility. The concerns common to Heidegger, Kafka and Camus are concerns which lie at the very heart of critical legal thought. These concerns, with ‘technicity’ and the demise of the ‘human condition’, in many ways have become the totem for Heideggerian critical theory. Heidegger's own insistence that ‘philosophy’ was ‘dead’, and that the future of thought lay in exploring the intersection between disciplines such as politics, psychology and most especially language, has also become something of a keystone in twentieth-century critical theory. It is of course the belief that guides such interdisciplinary work as law and literature. Heidegger and Heideggerians such as Derrida, Arendt or Marcuse have advocated precisely the ‘cross-disciplinary’ study, or ‘Ciceronian unity’, which law and literature scholars such as James Boyd White have advocated.

Before considering critical legal scholarship, it is useful to briefly trace one or two of the more pertinent lines of these ‘cross-disciplinary’ studies. Associating themselves with Heidegger's impulse, a number of these writers have concentrated on the breaking down of disciplinary structures, most particularly exploring the intersections between philosophy, psychoanalysis, literature and politics, in precisely the same way as Kafka and Camus. Jean-Paul Sartre produced a series of novels in a bid to explore the possibilities of an alternative discourse. He also investigated the relationship between philosophy and psychoanalysis in The Psychology of Imagination, in an attempt to develop the central problem of freedom in the human condition which had dominated Being and Nothingness. Arendt, Foucault and Marcuse all continued this particular interest in the relationship between philosophy and psychoanalysis, and its impact on the politics of the human condition. Foucault's attempts to break down structures and disciplines were used to full effect in his own studies on the nature and historical treatment of mental illness.²⁰ According to David Couzens Hoy, Foucault stands at the end of a ‘history of consciousness’ which has stretched from Kant and Hegel, through Husserl and Heidegger, to Derrida and Foucault himself. The ‘history of consciousness’ for these writers, he suggests, has become ‘the privileged subject-matter’.²¹ Certainly Derrida, in his discussion of Kafka's parable ‘Before the Law’, suggests that he came to the parable, via Freud and Heidegger, in a bid to write something about Kant's ‘moral law’.²² It is this immanent historicity which situates Foucault within the tradition, and which determines all who write about the human condition. Any such writing, whether ‘fictional’ or not, according to Foucault is part of the same literary tradition, because all such writers struggle with the desire to internalise language. According to Foucault, literature has taken over as the postmodern medium, because it makes a claim to historicise psychology and consciousness. In suggesting that ‘consciousness’ must be released from its own essentially reflective language, Foucault implicitly attacks Freud and the ‘culture’ of psychoanalysis. Foucault's own essay on Blanchot's use of fictional narratives contemplates the thesis that if language can be truly internalised, it can become an expression of self-assertion.²³

Herbert Marcuse took his investigations of the relationship between philosophy and psychoanalysis further than Foucault, most strikingly in Eros and Civilization, where he suggested that the dominant Freudian thesis of repression and performance as the gears of the mind was merely a symptom of historical contingency. As Foucault noted, Freud's placing of the ‘reality principle’ over the ‘pleasure principle’ was historically contingent. In place of a scientised approach to psychoanalysis, as represented by this earlier Freud, Marcuse asserted the later political-sociological Freud. In common with Kafka, Heidegger and a host of other writers of the early and mid- twentieth century, Marcuse portrayed a ‘repressive society’ as typified by the totalitarian state, founded on the ‘alienated performance’ of the individual, subjected to the dominance of the community. It was, he suggested, the loss of ‘[r]esponsibility for the organization of his life’ which had crushed man. Freud asserted that this subjection was the product of ‘self-repression’. Although Marcuse shared this premise, by stressing the political and thus historically contingent nature of psychoanalysis he presented, instead, an ‘unrepressive society’ based on the ‘liberating potentialities’ of ‘imagination’, on art and on poetry. An unrepressive literature could lead to an unrepressive society. Like Heidegger, Gadamer, Arendt and Foucault, Marcuse drew his original inspiration from Kant's third Critique and the assertion of subjectivity, and, like Foucault again, with a ‘liberating’ literature, rather than ‘consciousness philosophy’, Marcuse proposed to release a ‘new’ psychology.²⁴ In his later One-Dimensional Man, Marcuse repeated his same critique of the scientised and repressively technological twentieth century: if man was to reassert his ‘responsibility’ he could do so only by reasserting ‘art’ over ‘technics’, as advocated by the Greeks and the later Kant.²⁵

If Marcuse did most to explore the intersections between philosophy and psychoanalysis and did so, ultimately, to effect an improvement in the politics of the human condition, Hannah Arendt investigated the nature of this condition and its demise the furthest. Moreover she did so by using the work of Marcuse, Sartre, Heidegger and Kant, both on the human mind and on the conception of freedom. Like Marcuse, in The Life of the Mind she tried to reorientate the study of consciousness, from the ability to think to the method of thinking, from a scientific or metaphysical philosophy of the mind to a socio-historical critical theory of the ‘act of thinking’. Politically, in her particular study of the Jew, or ‘pariah’, Arendt stressed the need, not only to preserve privacy, but to act in the public situation, and to bridge the peculiarly modern distinction between the ‘social’ and the ‘political’. It was, after Heidegger, a responsibility not just to exist in/outside a community, but to create or ‘work’ in that community, for the community. In doing so, she took Heidegger and the problem of the alienation of the individual and from it presented a theory of inter-subjective participatory democracy, based on fundamental human rights and liberties. This is not a Natural Law or, as she perceived it, a democratic-republican conception of fundamental rights, but a consciously Kantian community-articulated conception of rights.²⁶

RESPONSIBILITY IN CRITICAL LEGAL THOUGHT

The themes that are common to critical theory, particularly alienation and responsibility, are those which lie at the conceptual core of much—though not all—contemporary critical legal scholarship. Some critical legal scholars would not share Arendt's faith in reconstructed rights. The concentration on communities and community consciousness, however, is very much the rhetoric of Critical Legal Studies. Moreover, what can be presented as a totem of such scholarship is precisely the interdisciplinary approach to legal problems which Arendt and Marcuse adopted for wider political issues and which contemporary law and literature writers forcefully advocate. Any critical theory, though it might present various visions of political, economic or legal justice, is primarily a theory of method. This interdisciplinary methodology defines all critical theories. The most committed interdisciplinary approach to remodel legal method among recognised CLS has been Roberto Unger's. Unger's political ‘vision’ was presented as early as 1975 in Knowledge and Politics, where he recognised the essential tension between the individual and society, but also suggested that an acceptance of the responsibility of the individual in the civil situation was the only possible justification for law. Acceptance of this premise, he asserted, can lead to responsibility and freedom. Though critical of the structuralism of modern philosophy, Unger is not only concerned with social deconstruction, but also with social reconstruction, which can be realised only through acceptance of a purposive theory of adjudication which reintroduces and is validated by an idea of substantive justice. The pretence of universality is denied, and in its place is a recognition of law as the reflection of immediate community ethics. This system will, Unger suggested, demand individual contribution, and will thus evolve as a self-affirmation of the individual as representative of the community.²⁷ Although the ‘vision’ has been modified during the previous two decades, it has remained in essence the same.

In his more recent Passion: An Essay on Personality, Unger urges us to ‘execute our social vision’, so that we must ‘enact this vision and a better project, or else fail in the self-affirmation’. At the same time, Passion emphasises Unger's increasing concentration on the problem of method, and particularly the virtues of interdisciplinary ‘method’. In Passion the essential problem or ‘predicament’ remains that of ‘contextuality and solidarity’. More than in some of his earlier work, Unger suggests that this is a problem of discourse and language. Like Richard Rorty and Paul Ricoeur, he advocates the possibilities of ‘storytelling’ instead of social theory as a ‘method’ of advancing social ‘solidarity’. Like Arendt, he refers to the alienation of the individual, and like Richard Weisberg suggests that it was Nietzsche's ressentiment which first defined the problem of the human condition in the modern era, and isolated the potential affinity between theology, politics and literature. The modernist literature of Proust and Kafka, he suggests, describes this condition, and complements Heidegger's existential angst. The failure of Kafka and Heidegger, Unger suggests, lies in not presenting a ‘vision of a reconstructed society’ and liberating the potentialities of ‘personality’. But he recognises that their great success lay in identifying the essential problem of metaphysics as one of method. Like Arendt, Unger is determined to present a normative ethics. His will be a Kantian, rather than a Heideggerian, ‘self-affirmation’. If there is to be a new ‘vision’ it will be guided by a communicative ethics and represented by a ‘psychology of empowerment’. For Unger, the key to solving the problem of the human condition lies in the association of politics, ethics and literature with psychology. In making this statement, he places himself within the same tradition as Heidegger, Arendt, Kafka and Camus. In emphasising the need to reorient the practice of psychology as a social rather than a biological science, he is saying very much the same as Marcuse. It is psychology, Unger suggests, which can banish ‘alienation’ and reassert ‘the school of freedom’ as a ‘passionate’, and thus radically subjective, idea, and the ‘assertion’, meaning ‘self’-assertion, of these ‘passions’ will enable us to ‘expand the scope of democratic politics’. A new de-objectified understanding of the human mind will facilitate a new de-objectified society.²⁸

Unger is not alone in his approach to critical legal scholarship. The concepts of responsibility, self-affirmation, community consciousness, the dangers presented by modern society and its alienation of the individual have been the meat and drink of critical legal writing for the last two decades. Drawing expressly from Sartre, and thus implicitly from Heidegger, Peter Gabel and Duncan Kennedy in their seminal essay ‘Roll Over Beethoven’ accused us of fearing individuality and the responsibility which it brings. ‘In the pain of isolation’, they suggested, ‘we become attached to the utopian content of legal imagery.’²⁹ According to Gabel, our ‘perception of reality’ is rendered impossible by a Sartrean ‘false-consciousness’. The alienation of the human condition has particularly characterised Gabel's writings. In asserting that the only solution lies with participatory politics or ‘the lived experience’, and that ‘individual growth and change occurs not through mere free will, but through affirmation by the other’, he presents not only the most Heideggerian of statements, but also the most Kafkaesque.³⁰ Certainly no statement in contemporary critical legal scholarship has come closer to bottling the spirit of Kafka's parable, and then releasing it onto a page of ‘legal’ text. Pluralism has represented a particular idol for critical legal writers, but an awareness that the need to address the method of discourse as a prerequisite for the presentation of any such idol has gradually risen in the critical legal consciousness. Allan Hutchinson, for example, has recognised that both ‘the method and medium must change’, so that ‘self-creation becomes the engine and energy of social change. … We can only fully grasp life by living. We cannot complete this task outside of language, but we cannot accomplish it entirely through language.’³¹

It is not surprising, or indeed particularly original to suggest that the political visions of thinkers such as Arendt and Marcuse, or indeed their inter-disciplinary approach to the problems of the human condition, bear a striking similarity to some of the theses presented by a number of critical legal thinkers during the previous decade. But it needs to be reaffirmed in the context of this particular chapter, because it provides a link in a chain tracing the origins of contemporary forms of critical legal scholarship with the narrative fictions of such writers as Kafka and Camus, and the political philosophies of such thinkers as Heidegger. To understand critical legal scholarship one must appreciate its association with literary theory and literary texts. The style, the rhetoric and the ambition of critical legal theory lies in the writings of Kafka, Camus and other such novelists as well as in thinkers like Heidegger or Marcuse. In a sense then, this can be termed a ‘weak’ defence of law and literature. The stronger defences seek to justify law and literature, and most particularly law in literature, by asserting its value as a form of jurisprudence in its own right. The strongest defence is that law is a part of life and plays an integral role in the determination of the human condition. This is not, however, a purely legal condition. Once this is understood, then political, social and philosophical texts will be admitted to jurisprudential discourse. At that point there is also no reason why narrative texts should not be included in the discourse. Once a narrative text is understood to be a piece of fiction, and once it is appreciated that Kafka never intended to instruct us with regard to the nature of Austro-Hungarian criminal procedure, then the narrative can be understood as contributing to the general debate on the nature of the human condition. At the same time by presenting itself as a fiction, and as subject to the vicissitudes of interpretation, there is no requirement that a narrative text should present a determination of any concept. It is for us to ‘create’ our interpretation, and in doing so to enjoin a participatory dialogue. As Joseph Singer suggested, ‘indeterminacy’ is not a monster that devours all possibility of a rational and fulfilled existence.³² It is simply a fact of life which, when appreciated, can be used precisely to enhance our understanding of our own possibilities. This simple fact lies behind Kant's final unifying third Critique, the ambition of Heidegger's address to the students of Freiburg in 1933, and was that which drove Kafka to present Joseph K. with the parable ‘Before the Law’, and Camus to see Sisyphus ‘happy’.

Notes

1. Richard Weisberg, The Failure of the Word: The Lawyer as Protagonist in Modern Fiction (New Haven: Yale University Press, 1984), 114-29.

2. A. Camus, The Outsider (London: Penguin, 1983), 119.

3. Weisberg, Failure, 116-22.

4. E. Simon, ‘Palais de Justice and Poetic Justice in Camus's The Stranger’, Cardozo Studies in Law and Literature, 3 (1990), 111-25.

5. A. Camus, The Myth of Sisyphus (London: Penguin, 1975), 86-95 and 111.

6. M. Blanchot, ‘La Lecture de Kafka’, La Part du Feu (Paris: Gallimard, 1949), 9-19, and J. Derrida, ‘Before the Law’, in D. Attridge, ed., Acts of Literature (London: Routledge, 1992), 181-211.

7. Camus, Myth, 120-3, and E. Fromm, Man for Himself (London: Routledge, 1960), 141-72.

8. M. Heidegger, ‘The Self-Assertion of the German University’, Review of Metaphysics, 38 (1985), 476.

9. M. Heidegger, ‘Facts and Thoughts’, Review of Metaphysics, 38 (1985), 481-502.

10. The recent Heidegger controversy was rekindled by Victor Farias's Heidegger and Nazism (Philadelphia: University of Pennsylvania Press, 1989). Volume 15 of Critical Inquiry (1989) presents a series of essays discussing the controversy, including Habermas's ‘Work and Weltanschauung: The Heidegger Controversy from a German Perspective’. A number of other works written in response to Farias include Phillippe Lacoue-Labarthe's Heidegger, Art and Politics (Oxford: Blackwell, 1990) and L. Ferry and A. Renaut's Heidegger and Modernity (University of Chicago Press, 1990). A collection of the ‘controversy’ literature can be found in Richard Wolin, ed., The Heidegger Controversy (New York: Columbia University Press, 1991). For Derrida's essay on the Rektorat, see Of Spirit: Heidegger and the Question (University of Chicago Press, 1987).

11. M. Heidegger, ‘On the Essence of Truth’, in D. Krell, ed., Basic Writings (New York: Harper and Row, 1978), 127-9.

12. M. Heidegger, Being and Time (Oxford: Blackwell, 1962), 38 and 279-89.

13. Derrida, Of Spirit, 5, 14 and 31.

14. D. Dahlstrom, ‘Heidegger's Kantian Turn: Notes on His Commentary on the Kritik der Reinen Vernunft’, Review of Metaphysics, 45 (1991), 329-61.

15. Heidegger, ‘Self-Assertion’, 470-6.

16. In Farias, Heidegger and Nazism, 131-3.

17. Heidegger, ‘Facts and Thoughts’, 199.

18. P. Lacoue-Labarthe, ‘Neither Accident Nor Mistake’, Critical Inquiry, 15 (1989), 481-4.

19. M. Blanchot, ‘Thinking the Apocalypse: A Letter from Maurice Blanchot to Elizabeth David’, Critical Inquiry, 15 (1989), 475-80.

20. See M. Foucault, The History of Sexuality, 3 vols. (London: Penguin, 1979-88).

21. D. Hoy, ‘A History of Consciousness: from Kant and Hegel to Derrida and Foucault’, History of the Human Sciences, 4 (1991), 261-81.

22. Derrida, ‘Before the Law’, 190.

23. See M. Foucault, ‘Maurice Blanchot: The Thought from the Outside’, in Foucault/Blanchot (New York: Zone, 1987), 55-8. This later essay tends to run against the gist of Foucault's earlier writings in the uses of fiction.

24. H. Marcuse, Eros and Civilization (Boston: Beacon, 1955), xiv-xxiii, 3-51, 89-102 and 140-98.

25. H. Marcuse, One-Dimensional Man (Boston: Beacon, 1964), 236-41.

26. H. Arendt, The Life of the Mind (New York: Harcourt Brace Jovanovich, 1971), 22-78 and 248-325, and The Human Condition (University of Chicago Press, 1958), 19-216.

27. R. Unger, Knowledge and Politics (New York: Free Press, 1975), 174-90 and 221-2.

28. R. Unger, Passion: An Essay on Personality (New York: Free Press, 1984), 15-42, 72-7 and 275-300.

29. P. Gabel and D. Kennedy, ‘Roll Over Beethoven’, Stanford Law Review, 36 (1984), 36-42.

30. P. Gabel, ‘The Phenomenology of Rights-Consciousness’, Texas Law Review, 62 (1984), 1593.

31. A. Hutchinson, ‘The Three “Rs”: Reading/Rorty/Radically’, Harvard Law Review, 103 (1989), 367-9.

32. J. Singer, ‘The Player and the Cards: Nihilism and Legal Theory’, Yale Law Journal, 94 (1984), 1-70.