Florida State University Libraries

Electronic Theses, Treatises and Dissertations The Graduate School

2010

Justice, Punishment, and Docile Bodies:

Michel Foucault and the Fiction of Franz
Kafka
Carl Curtis

Follow this and additional works at the FSU Digital Library. For more information, please contact lib-ir@fsu.edu
 THE FLORIDA STATE UNIVERSITY

COLLEGE OF ARTS AND SCIENCES

JUSTICE, PUNISHMENT, AND DOCILE BODIES:

MICHEL FOUCAULT AND THE FICTION OF FRANZ KAFKA

By

CARL CURTIS

A Dissertation submitted to the

Department of Interdisciplinary Humanities
in partial fulfillment of the
requirements for the degree of
Doctor of Philosophy

Degree Awarded:
Spring Semester, 2010
The members of the committee approve the dissertation of Carl A. Curtis defended on
11/23/09.

_____________________________________
R.M. Berry
Professor Directing Dissertation

_____________________________________
Adam Jolles
University Representative

_____________________________________
William Cloonan
Humanities Representative

_____________________________________
S.E. Gontarski
Committee Member

The Graduate School has verified and approved the above;named committee members.

ii
To my son Mason

iii
— Calvin Coolidge

iv
 Many faculty and family have helped me along the path of my education, but
there are a few who deserve special thanks here. First, above all, my wife has always proven her
unlimited faith in my ability to realize my dreams. I still owe her a honeymoon because we
were married only a few days before the first week of classes at FSU, and she spent those first
weeks at Shoney’s Hotel huddled next to an air conditioner (no one told us about August in
Tallahassee). Her love and support have meant everything.
The idea for this dissertation originated in Dr. William Cloonan’s course on Foucault,
and I am thankful for his inspiration.
I am also very thankful for the help of Dr. R.M. Berry who committed his time and
energy to many drafts of this work. Above and beyond, he was instrumental in negotiating
many of the administrative roadblocks that seemed insurmountable while writing and working
far away from Tallahassee.

v
LIST OF FIGURES ....................................................................................................................... ix
LIST OF ABBREVIATIONS......................................................................................................... x
ABSTRACT................................................................................................................................. xiii

I. Introduction and Methodology: Foucault and Kafka

CHAPTER ONE
INTRODUCTION .......................................................................................................................... 2
The Trial and “In the Penal Colony”........................................................................................... 4
Realism........................................................................................................................................ 6
Kafka & The Law........................................................................................................................ 6
Kafka’s Reality............................................................................................................................ 8
Foucault & The Law.................................................................................................................. 11
Discourse ................................................................................................................................... 15
Diffraction ................................................................................................................................. 17
Return of the Other ................................................................................................................ 20
Realism .................................................................................................................................. 21
Kafka’s Bodies....................................................................................................................... 21

CHAPTER TWO
METHODOLOGY ....................................................................................................................... 24
Archeology ................................................................................................................................ 25
Genealogy.................................................................................................................................. 27
The Subject and Power.............................................................................................................. 29

II. : Discipline and the Soul

CHAPTER THREE
DISCOURSE VACILLATION: THE ATTIC COURTS IN ! "#$% .................................. 32
The Arrest of Joseph K.............................................................................................................. 33
The Arrest .............................................................................................................................. 34
Constitution............................................................................................................................ 35
Opposing Discourse Formations and the Preliminary Conflict in ............................ 37
Methodology: Michel Foucault ................................................................................................. 41

vi
 General Reform ......................................................................................................................... 43
Bureaucracy in ........................................................................................................... 45
CHAPTER FOUR
THE OLD DISCOURSE OF SECRECY IN THE TRIAL .......................................................... 47
Secret Texts and Secret Laws.................................................................................................... 48
Vacillation: Sacred & Profane Discourse Formations .............................................................. 52
Secret Investigation ................................................................................................................... 53
Lawyers ..................................................................................................................................... 54
Power of the Prosecution: The Figure of the Examining Magistrate ........................................ 57
Joseph K. — A “Detractor”? ..................................................................................................... 59
Arithmetic.................................................................................................................................. 61
Predetermination of Guilt ...................................................................................................... 64
Titorelli .................................................................................................................................. 64
Full or Actual Acquittal ......................................................................................................... 65
Ostensible Acquittal............................................................................................................... 65
Indefinite postponement......................................................................................................... 66
Intercession................................................................................................................................ 68
Fräulein Bürstner ................................................................................................................... 71
Washer Woman...................................................................................................................... 71
Leni ........................................................................................................................................ 72

CHAPTER FIVE
THE NEW DISCOURSE OF “DISCIPLINE” ............................................................................. 74
Transformation of Practices ...................................................................................................... 75
The Subject & Individualization ............................................................................................... 77
Documentation and Individuality in .......................................................................... 79
Panopticism ............................................................................................................................... 81
Invisibility ................................................................................................................................. 83
Observation, Space, and the Arrest ........................................................................................... 84
Dispersal: Surveillance and the Role of the Public ................................................................... 85
Letting Go.................................................................................................................................. 87
Attraction to the Court............................................................................................................... 88
The Cathedral and Interpellation............................................................................................... 90

CHAPTER SIX
PHYSIOGNOMY AND CRIMINAL STIGMATA IN ! "#$% ........................................... 94
Kafka and the Body................................................................................................................... 96
Diaries .................................................................................................................................... 97
Dostoevsky............................................................................................................................. 98
Manifestation of Illness ............................................................................................................. 99
K.’s Illness ........................................................................................................................... 100
Raskolnikov’s Ego ............................................................................................................... 102
K.’s Confidence ................................................................................................................... 102
The Whipper............................................................................................................................ 104
The Execution.......................................................................................................................... 106

vii
III. "In the Penal Colony": Discipline and the Body

CHAPTER SEVEN
THE LITERAL POETICS OF JUSTICE IN KAFKA’S “IN THE PENAL COLONY”........... 109
De;Familiarization................................................................................................................... 111
Literality & Return of the Other.............................................................................................. 113
The Narrative........................................................................................................................... 114
Review..................................................................................................................................... 116
Thesis....................................................................................................................................... 117

CHAPTER EIGHT
PENAL COLONIES: THE DEFEAT OF THE OTHER ........................................................... 120
The Discourse of Sovereign Justice and its “Liturgy of Punishment” .................................... 125
The Old Commandant & Discourse ........................................................................................ 127
Gradation of Pain ................................................................................................................. 129
The Condemned Man........................................................................................................... 130
Political Ritual ..................................................................................................................... 132
“Self Evident Matters”: Discourse, Truth, and Secrecy ...................................................... 134
Secrecy and Confession ....................................................................................................... 135
“Truth is a Thing of this World”.......................................................................................... 138

CHAPTER NINE
THE BODY AND RITUALISTIC INSCRIPTION IN “IN THE PENAL COLONY”............ 141
Truth Revealed ........................................................................................................................ 144
Announcement......................................................................................................................... 145
Publication............................................................................................................................... 145
Symbolism & Transparency.................................................................................................... 147
Instruction................................................................................................................................ 149
Enlightenment ......................................................................................................................... 149
Backfire, Misfire, and Rupture................................................................................................ 151
Battle .................................................................................................................................... 153
Disorder................................................................................................................................ 157
Violence & Revenge ............................................................................................................ 158
Discursive Shift.................................................................................................................... 161
Conclusion............................................................................................................................... 162

IV. Conclusion

CONCLUSION........................................................................................................................... 165
WORKS CITED ......................................................................................................................... 168
BIOGRAPHICAL SKETCH ...................................................................................................... 175

viii
Figure 1: Discourse Modalities in .......................................................……. 40
Figure 2: Pre;Modern Inquisitorial Discourse ....................................................……. 48
Figure 3: The Modern (Reformed) Discourse of Discipline...............................……. 76

ix
 ! "

$& $ & Trans. A.M. Sheridan Smith. New York: Pantheon \

Books, 1972.
' ' ( ) Trans. Alan Sheridan. New York:
Vintage Books, 1995.
'% “The Discourse on Language.” $ & Trans. A.M Sheridan
Smith. New York: Pantheon Books, 1972. 215;237.
!* ! * + , #( $ # Trans. Robert Hurley. New York:
Vintage / Random House, 1978.
# #- " . -! * / / -/ * - / ) ($0
12 0 Ed. Michel Foucault. Trans. Frank Jellinek.
Lincoln: University of Nebraska Press, 1975.
/0 / 0 3 ($! # $ " . Trans. Richard
Howard. New York: Vintage / Random House, 1965.
! “Nietzsche, Genealogy, History.” % -0 4/ - Ed. Donald
F. Bouchard. Ithaca: Cornell University Press, 1977. 139;164.
($ $ ! * New York: Vintage
Books, 1994.

x
 *' “Politics and the Study of Discourse.” 5 (*
Ed. Graham Burchell, et al. Chicago: The University of
Chicago Press, 1991. 53;72.
& 6& * # 7 8 Ed. Colin Gordon. Trans.
Colin Gordon, Leo Marshall, John Mepham, and Kate Soper. New York:
Pantheon Books, 1980.
9/ “Questions of Method” 5 (* Ed.
Graham Burchell, et al. Chicago: The University of Chicago Press, 1991. 73;
86.
* “The Subject and Power.” / 5 () * !
Chicago: The University of Chicago Press, 1983. 208;226.
“Truth and Power.” 5 " Ed. Paul Rabinow. New York: Pantheon
Books, 1984. 51;75.
8$ “What is an Author.” % -0 4/ - Ed. Donald
F. Bouchard. Ithaca: Cornell University Press, 1977. 113;138.

xi
 !#$ !% !

': ' 5 3& ( 121;412:< Ed. Max Brod. New York: Schocken Books,
1949.
%/ % / Ed. Willi Haas. Trans. Tania and James Stern. New York:
Shocken Books, 1953.
0 “In the Penal Colony.” 0 (* * Trans. Willa and
Edwin Muir. New York: Schocken Books, 1961. 191;227.
0: “In the Penal Colony.” / -# 0 - *
* Trans. Joachim Neugroschel. New York: Simon & Shuster Inc., 1995.
189;229.
+ Berlin: Schocken Books Inc., 1958.
Intro. George Steiner. Trans. Willa and Edwin Muir. New York: Schocken
Books, 1992.
: Intro. Trans. Breon Mitchell. New York: Schocken Books, 1998.

xii
 Franz Kafka and Michel Foucault, two incredibly dissimilar men, approach many of the
same topics including alienation, institutional power, the phenomenon of the body, death and
authorship, the limitations of literature and language. However, a review of the literature of the
two figures has discovered little more than an occasional academic nod recognizing the literary
relationship, but nothing offering solid exegesis. This dissertation is concerned with perhaps the
most obvious parallel: the authors’ characterizations of law, justice, and punishment and their
corresponding relationships with discourse, knowledge, power, and the body. Kafka wrote from
unique historical space, divided by dissimilar judicial discourses. This collision of competing
modalities provides the impetus for much of his work, including “In the Penal Colony” and
The recognition and delineation of these formations offers a better understanding of
Kafka’s world and his often enigmatic texts. Thus, Foucault’s understanding of discourse and
his unconventional history of discipline provide a helpful methodological framework for this
investigation. Whereas a plethora of Kafka scholarship favors an allegorical or metaphysical
interpretation, this dissertation privileges the literal. In his own words, Kafka sought to
represent the “negative aspects” of his world — the political, social, and legal reality in which he
was immersed.

xiii
&

' ()
 ' &

Charmed by Franz Kafka’s bizarre and sometimes disturbing fiction, countless literary
critics, many of whom herald Kafka as the “representative man” (Karl) of Modernity, have
produced a generous mass of scholarship concerning the writer’s life, fiction, diaries, and letters.
It has even been claimed that as “many works have been written about him in later years as about
Dante, Cervantes, Shakespeare, or Goethe” (Bauer 15). It seems, however, that much of the
crowded shelf space dedicated to Kafka studies is taken up by tattered, dusty manuscripts 
their covers being symptomatic of their worn, now almost clichéd contents. Of the same
opinion, George Steiner in his introduction to claims: “The thought that there is
anything fresh to be said of Franz Kafka’s is implausible” (vii) and “the cumulative
volume of interpretation and scholarship makes it unlikely that any substantive aspect or salient
detail in has been altogether overlooked” (viii). Indeed, favorite literary themes such
as political prophesy, existential loneliness, oedipal jealousy, and religious allegory (Politzer,
Sokel, Steinberg, Siegel) have all been relentlessly battered in the stacks of Kafka criticism, and
certainly not limited to . Even thirty;five years ago, Roland Barthes presciently wrote
that critical descriptions of the “bureaucratic terror of the modern moment [in] ,
0 , [and] 0 constitute overworked models,”1 and the project of “exposing
the claims of individualism against the invasion of objects [in] ‘The Metamorphosis’ is a
profitable gimmick” (141).
However, it is, coincidently, Barthes’ colleague, Michel Foucault, who is the focus of this
essay and whose provocative theories, I contend, offer fresh insight and contribute to an
1
Ironically, Barthes makes these comments while simultaneously offering his own take
on Kafka’s work.

2
interesting, nontraditional understanding of and “In the Penal Colony.” Foucault’s
work, like Kafka’s, has inspired an imposing collection of analyses, but like other postmodern
investigations, his multidimensional work is difficult to categorize because it actively crosses
disciplinary boundaries, producing dense philosophical inquiries into multiple fields such as art,
economics, sociology, philosophy — highlighting the complex interconnectedness of discourse
and stressing the fact that the disciplines themselves are “only contingent and historical”
(Rajchman 1). Nevertheless, Foucault’s writings have always been considered at the fringes,
never fully embraced by any one discipline (especially history), with, perhaps, the exception
being literary studies.2
The fact that both Foucault and Kafka approach many of the same topics including
alienation, institutional power, the phenomenon of the body, death and authorship, the limitations
of literature and language, and the overall “dark side of modernity” (McNay 2), makes the
absence of any study concerning the philosophies of Foucault in relation to Kafka’s texts
surprising. A review of the literature of the two figures has discovered little more than an
occasional academic nod recognizing the literary relationship, but nothing offering solid
exegesis. Such a comprehensive project would be productive, but overwhelmingly lengthy.
Consequently, here I am only concerned with perhaps the most obvious parallel: the authors’
characterizations of law, justice, and punishment and their corresponding relationships with
discourse, knowledge, and power. Hence, the aim of the following study is to offer a new
understanding of Kafka’s work, specifically and “In the Penal Colony,” made possible
by approaching the narratives through the anachronistic lens of Michel Foucault’s philosophy
and his unconventional history of discipline.

2
For example, Hunt and Wickham point out: “Frequently commentators with a strong
and protective sense of their own disciplinary specialisms resist and strongly denounce Foucault
for transgressing their conception of how their discipline should be practiced: philosophers
suggest that he lacks rigour; historians find him cavalier in his treatment of empirical evidence;
sociologists bemoan his lack of precision in defining his concepts and stating his hypotheses”
(5).

3
 ! !#* + # " & #! # ,
Kafka composed both and “In the Penal Colony” in the months preceding, and
the early days of, the Great War,3 and it is important for the reader to understand that this was a
moment of severe political oppression in Bohemia in which thousands who spoke or acted
against the Hapsburg Empire — an “autocratic state par excellence” —were systematically
arrested, placed in internment camps, tortured, and even executed (Nosek). Nosek, author of
# ) , points out that “Austria;Hungary declared war not only on her enemies
outside her frontiers, but also on her internal enemies, on her own Slav and Latin subjects” (48).
According to A.J.P. Taylor, author of ! / ( 1=>24121=, the greatest
“bureaucratic zeal” was devoted to the internal protection of the monarchy, often imposing a
“police state” to protect against “dangerous thoughts” (38), relying upon secret police and
imperial censorship to terrorize the population. From a legal perspective, it was a moment at
which legal reforms were reversed and the monarchy relied upon old, autocratic disciplinary
strategies. For example, political parties unsympathetic to the empire were dissolved and their
publications suppressed. Newspaper editors were censored and forced to publish favorable
“unsigned articles” written by the state (Nosek 57), without attributing their bureaucratic sources.
Czech newspapers were suspended, and arrests “for political crimes became so numerous that the
jail of the New Town (one of the Boroughs of Prague) held at one time 400 prisoners, though
there was only room for 250 persons” (Capek 73).
Leaders who were associated with Czech nationalism, Pan;Slavism, or the Socialist party
not only had their writings suppressed, but they were arrested, imprisoned, and often sentenced
to death. In this paranoid, minority;ruled, police state, officials were suspicious of everyone,
and Nosek alleges that “over 20,000 innocent Czechs, men, women, and children, were
confined” because of their alleged political beliefs (54) and about 5,000 were hanged “by
military tribunals, since juries had been abolished by an imperial decree” (Nosek 48). For

3
The Great War was precipitated by Austria’s declaration of war on Serbia (July 28,
1914) in retaliation for the assassination (June 28, 1914) of Archduke Francis Ferdinand (heir
apparent to the throne of the Austria;Hungary Empire) by a Serbian nationalist. Consequently,
Austria;Hungary suffered political unrest and a corresponding intensification of Pan;Slavism
(the dream of a unified Slavic culture) within its borders.

4
example, Nosek states, “Without a fair trial and without evidence, the editor of the Nationalist
Socialist organ in Prostĕjov, Mr. Joseph Kotek,4 was sentenced to death on Christmas
Eve of 1914. The sentence was passed at noon, confirmed at half;past four and carried out at
half;past six” (53). Even possession of suspicious literature considered dangerous to the state
(such as Russian manifestos) was punishable by death. If confined, the prisoners were beaten,
tortured, neglected, malnourished, hanged, or stabbed. Thousands died.
was written from August 1914 to January 1915, a time when these injustices
were at their height, and, consequently, I consider Kafka’s as a related narrative about
a man who was arrested by a secretive, malicious regime, and “In the Penal Colony” as a de;
familiarization and denunciation of extant, disciplinary tactics. While numerous Kafka scholars
have attempted to demonstrate Kafka’s prescient foretelling of the atrocities that were to
eventually devastate Europe during World War II,5 the fact is, totalitarian acts of violence and
intimidation were committed while Kafka was alive in the very city in which he lived out his
entire life. In fact, his writings are an indirect attack on the oppression which suffocated his
world. As Ernst Fischer notes, “Kafka refers hundreds of times to the available (even if
incredible) world of the Hapsburg monarchy as a model of a world going to ruin” (87). Alexej

4
The similarity of this name and that of the protagonist’s in is interesting.
The arrest and execution also correspond with the composition of the text. Could this be the real
Joseph K.?
5
For example, J.P Stern’s celebrated article “The Law of ” argues that
“Kafka’s is a prophetic — or rather an anticipatory — fictional account of both the
concepts underlying national socialist legislation and the practice of its law courts” (30), and he
goes on to argue that Kafka actually predicts the actions of the Gestapo state in which an
individual was commonly judged as guilty without a trial. But others such as Ritchie Robertson
dismiss such interpretation as “romantic,” untenable, or impossible, however convincing that
they first appear (97). Hannah Arendt goes as far as stating, “If Kafka’s writings were really
nothing more than a prophesy of impending horror, it would be as cheap as all other prophesies
of doom which have plagued us since the beginning of our century” (8). Like Arendt, I believe
that Kafka’s work was more (or perhaps less) than prophesy in that the author articulates
(represents) his real experience in the works.

5
Kusák adds, “Kafka did not need to prophesy any horrors; he lived right in the middle of them”
(99). So, while arguments about his prophetic powers are certainly complimentary to his genius,
the reader must understand that Kafka first wrote about the injustices of his present —the
“negative aspects” of his time.

! -
In literary terms, Kafka is considered by a few as a “monumental realist of the twentieth
century” (Kusák 95). One could argue the definition of realism, but the premise forwarded in
this essay maintains that Kafka deliberately represents a unique moment in the socio;legal
history in which he participated.
Marxist critics such as Kusák, Goldstücker, Lukács, Reimann, Fischer, and others would
argue that the realism of the work is concentrated on the “clearly visible lag of the Hapsburg
monarchy behind the stormy development of the capitalist world” (Goldstücker 67). George
Lukács for example, claimed that the “diabolical character of the world of modern capitalism,
and man’s impotence in the face of it, is the real subject of Kafka’s writings” (Kusák 95). While
the ultimate source of the turmoil may well be capitalist struggle, statements such as these seem
to be disappointingly vague. In and “In the Penal Colony” the drama’s source is a
precise historical collision of judicial paradigms. Thus, I agree with Kusák and others who
argue that Kafka must be “located” (96) and that “it is the task of Kafka researchers to determine
the means which helped him concretize this vision” (99). Certainly, the reader must understand
the specific historical struggles — economic or otherwise— from which Kafka wrote, but that is
not enough. Here, I “locate” the source of Kafka’s statements within a unique moment of
discursive separation. That is, there is a precise diffraction in the legal discourse of the age that
provides the dramatic impetus of the works here under consideration (not necessarily a man’s
struggle against a sort of universal, capitalist machine).

!% ! . !/
However obvious Kafka’s connection is with the real workings of the law in pre;war
Austria, critics usually opt for a religious, psychological, or metaphysical interpretation of
Kafka’s work. Of the same opinion, Arendt argues that the essence of the literal bureaucratic
horror of has actually been ignored for the most part because scholars have

6
traditionally looked “for different and more profound interpretations” (5). In the late 1940s,
Arendt called for an examination of the literal aspects of the text, claiming that readers in the
1920s could not relate to the bureaucracy of Old Austria. Her call is still relevant.
Contemporary readers are still not aware of the realistic aspects of the text. At the core of the
bureaucracy in both and “In the Penal Colony,” there is a fragmented system of laws
and punishments at odds with itself. Subsequently, the contemporary reader must first
understand this discursive separation before privileging other interpretive possibilities.
There are many explanations for this problem. For example, Weisberg notes,
“[H]umanists, when faced with the same texts, often prefer to ignore or to devalue legal
problems within the works rather than to display the interdisciplinary interest necessary to
understand the masterpieces in their fullness” (238). Like Weisberg and Arendt, Bill Dodd
claims that the literal aspects of Kafka’s work have been occluded, and he argues for the
possibility of interpretations which could link the fictions “with a historical, empirical social
reality” (146). He notes, “Those who read him [Kafka] ‘politically’ make a good case for seeing
him as a critical receptor and reflector of social forces, an observer of secular power, a radical
skeptic in religious issues, whose imaginative fictions are driven by an iconoclastic, though
insidious and oblique, critique of historically real power structures and their discourses” (146).
Despite the call for a more realist interpretation, few have investigated the precise realm
of legalities and punishments contemporary with Kafka. In order to approach the complexities
of Kafka’s work, the reader must understand that Kafka necessarily spoke from a certain position
within a certain judicial discourse. Kafka was a student of the current law and law history as
well. Proficient in both, he drew from these various (often opposing) legal discourses to create
his fiction, creatively mixing past and present, motivated by a profound desire to represent (and
possibly reform).
Kafka’s texts are a product of a historical, discursive rupture in which real judicial
paradigms were fiercely competing against one another, vying for dominance, recognition, and
power. The unique historical moment makes Kafka’s fiction distinctive but, at times, frustrating
because his representations vacillate between the various discursive modalities. His fiction is an
amalgamation of historical discursive fragments, unstably joined, symptomatic of the unique
moment.

7
 !% !0 ! "
The presence and workings of the law are motifs that obviously link much of Kafka’s
oeuvre. As mentioned, interpretations that approach the literal representations of law and
punishment in Kafka’s works are surprisingly absent from the canon of Kafka studies: in fact,
according to Martha Robinson, “one finds only occasional and fleeting references to the setting
of the story, the real world of courts and lawyers in which the author lived” (127). Those who
are interested in the legal reality from which Kafka spoke are most often concerned with their
own political project (i.e. Marxist interpretations). The majority of the scholarship focuses on
Kafka’s religious beliefs or his personal life, ignoring the realm of real judicial and political
crisis. For example, Meno Spann, author of 5 3& - makes the misguided assertion that
the “frequent use of the trial motif [in Kafka’s work] is much more indicative of Kafka’s inner
life than of his law studies” (89). In this case, Spann is just wrong. Thematically, a of
sorts (personal or otherwise) occurs in more than a few of Kafka’s stories and much of the
collective richness can be attributed to the author’s inner turmoil, existential guilt, and
burdensome interpersonal relations, but the legal denouement of is certainly not
exclusively symbol, allegory, and metaphor; it is also literal and perhaps political. Moreover,
the historical collapse of corporal punishments and the haunting threat of their return are
uncannily similar to those presented in “In the Penal Colony.” The narrow inclination to ignore
the literalness of the texts can be at least partially attributed to the best known translator’s
(Muir’s) religious bias and Max Brod’s influential biography, both of which privilege Kafka’s
spiritual and personal tribulations (or trials). While these traditional readings are clearly
profitable, Kafka certainly was not a one;dimensional writer. Consequently, surface readings
which approach the real world of the law and the unique historical moment of European judicial
reform cannot be so easily glossed.
After all, beyond the accounts that characterize Kafka as an anxiety;ridden recluse, there
is a plethora of secondary accounts which allege that Kafka was actually a very active, politically
conscious individual, concerned and dedicated to the idea of social justice. Why should the
reader think that his writing did not concern, and speak to (or against), the reality in which he
lived? He lived during a tumultuous political era in “the most backward countries of the modern
world” (Hermsdorf), and, according to Brod, he was necessarily interested in “every kind of
reform” (Brod 48). Furthermore, Kafka’s friends and acquaintances (Brod, Wagenbach, Löwy,

8
Janouch) agreed that he adamantly disagreed with the efforts of the German nationalist
movement and claimed that he had certain associations with the Prague Social Democrats, the
Realist Party (an anti;German nationalist group) and even the Anarchist movement (Brod, Löwy,
Janouch). For example, it is known that he attended meetings of a libertarian group (Brod,
Löwy, Janouch), and Löwy, author of “Franz Kafka and Libertarian Socialism,” contends that
Kafka participated in public demonstrations and “attended anarchist conferences on free love, the
Paris Commune, [ . . . ] and the Czech Anarchist Movement” (121).6 The Communist Party of
Czechoslovakia offered the following eulogy within days of the author’s death:
A German poet has passed away, a delicate and pure spirit, who abhorred this
world and dissected it with a sharp knife of reason. Kafka has insight into the
mechanism of society; he sees the misery of some, the power and wealth of
others. In his very visual works, he satirically attacks the powerful of the world.
(Reimann 53)
In the end, his work was at least a representation of injustice — at best, a brave, sharp attack
against those with power enough to hurt and silence any opposition.
Kafka’s alleged political connections are complicated by his Jewish heritage and the fact
that those of Jewish decent were alienated by both the minority German and the majority Czech
populations. On the one hand, he was “brought up as a German” (Brod 3) and, as a child, went
to German schools. The family business catered to the German minority, and Kafka worked at a
government institute which employed mostly Germans. He even composed his fiction in
German, the official tongue of the Empire. Financially, he described himself as Jewish middle
class.
Still, he was “a minority within a minority” (Karl 2), and he never really formed a
connection with the German elite who (along with the Hapsburg monarchy) were grossly anti;
Semitic. Kafka was politically closer to the majority Slovak populations. He studied Czech
literature, and the Kafka family — its surname of Czech decent — spoke Czech in the home.

6
There are scholars who dispute Löwy’s accounts as pure myth — claiming them to be
exaggerated at best, erroneous and false at worst. Others support his assertions noting that even
Brod claimed that the memoirs of a “nineteenth century anarchist [Kropotkin] were amongst
Kafka’s favorite books” (Dodd 131).

9
Although his home life, particularly his relationship with his father, was tenuous at best, political
beliefs seem to be the one shared concern of the Kafka men. Hermann had a “certain sympathy”
with the “fighting Czech parties of Old Austria” (Brod 3), and Kafka’s second cousin, Professor
Bruno Kafka, “was a leading figure in German liberal circles” and later became a member of the
Czech Parliament (Brod 3).
The reality of Kafka’s political sympathies, however, is complicated by a lack of primary
source material. Political and legal commentary is, for the most part, surprisingly absent from
Kafka’s diaries which were written over the course of many years and include hundreds of pages.
In fact, in his personal letters, the writer seems rather unconcerned about the First World War
and detached from the legal transgressions of the malevolent Hapsburg Empire. One often cited
example from the diaries is an entry made on August 2, 1914, the beginning of WWI. The
single line entry reads, “Germany has declared war on Russia — Swimming in the afternoon”
(': 75). Dodd, however, argues that the attribution of apathy as the source of the diary entry
“warrants investigation” (131). He notes that Kafka was not a political writer in the sense of
forwarding a public crusade, but he argues that his work has a relationship with social realism
that has been potentially overlooked. Dodd goes on to quote Roger Garaudy’s position, which is
worth repeating here:
Kafka is not a revolutionary. He awakens in people the consciousness of their
alienation; his work, in making it conscious, makes the repression all the more
intolerable, but he does not call us to battle nor draw any perspective. He raises
the curtains on a drama, without seeing its solution. (Dodd 132)
In other words, he chooses to represent or de;familiarize his present so that his readers could
recognize themselves amidst their oppression.
Regardless of the author’s politics, Kafka was at the core, a compassionate man,
concerned for his fellow men and his country. While Kafka’s political identity may be
ambiguous, his feelings about social justice are apparent and well documented. He once wrote
in a diary entry that he inherited “a sense of justice” (Brod 19) from his mother which accounts
for his belief that humankind has an innate sense of justice and that criminal acts are a
suppression of these natural inclinations (Janouch 50).
Kafka lived his entire life in Prague where he studied law: its use, its history, its failures,
and its possible reforms. He completed the coursework necessary for a degree in law at the

10
German University of Prague (1901;1906), which included seminars in jurisprudence, political
science, and legal history. At the age of twenty;three (1906), he graduated as Doctor of Law
and immediately began work for a lawyer in order to complete the required apprenticeship for
students “who wanted to enter civil practice,” which included “six months in civil court (October
1906 to March 1907), [and] six months of criminal law (April to September 1907)” (Wagenbach
76). His familiarity with law and the courts obviously carried over to his fiction which
frequently develops the themes of justice, judgment, and punishment.
So, even if the writings of Franz Kafka cannot be condensed into a specific political
doctrine, one can convincingly argue that his fiction comments on what he knew — justice, the
law, and the legal machinery in which he lived, breathed, and worked. His training in law and
his work at the Workers Insurance Company encouraged a realistic notion of the problems of
justice. However, the most convincing evidence that Kafka wrote about his real world is found
in his diaries in a discussion about his role as a writer. Kafka confirms that his fiction
approached the real problems around him in a diary entry dated February 25, 1918. He writes,
“I have intensely absorbed the negative aspect of my time — a time which is very close to me
and which I have not the right to challenge, but only as it were to represent” (qtd. in Stern 22).
So, it seems that Kafka believed that he was ultimately powerless to directly confront the
injustices of his present. But, he felt that he could, at least, “represent” them in his fiction. In
other words, Kafka’s fiction offers a glimpse of modern officialdom, and de;familiarizes the
complexities of the legal discourse(s) in which he was immersed.

! ". !/
Foucault’s concern with law and social justice is just as prominent. He lectured on the
history of law (Eribon 139), discussed the themes of justice and punishment on numerous
occasions, most prominently in / 0 3 ; in #- " -!
* / / -/ * - / ) ; and ' This
dissertation is mostly concerned with the latter work, which identifies and elucidates the
paradigm shift at the end of the eighteenth century. Uniquely, this historical collision of
disciplinary mechanisms (three sociological approaches to punishment in search of an efficient

11
management of disciplinary subjects and resources7) coincides with the time at which Kafka
wrote his narratives.
Although Foucault provides a history of confinement, discipline, justice, and punishment,
his history is a counter;history  one which abandons, challenges, and subverts traditional
narratives. Foucault’s approach identifies radical epistemological shifts in disciplinary
mechanisms that have been previously ignored and offers unique insights into disparate, judicial
modalities including an understanding of penal practices and institutions in terms of their
exchange of / with power and how justice and punishment manifest as means of manipulation,
control, hierarchization, individuation, segmentation, torture, and subjugation of the human
body.
The first of the three models explicated by Foucault is based on intense, sadistic torture at
the hand of a sovereign. Characterized by the “ritual marks of the vengeance,” torture was
conceived as a public demonstration in which the body of the transgressor was violently
destroyed in a manner designed to achieve “an effect of terror” (' 130). It was a merciless
ceremony of control, designed to display “the physical presence of the sovereign and of his
power” (' 130). The executions “were organized around a system of retaliatory marks” which
inscribed the punishment on the body of the condemned, which was also considered the property
of the sovereign: “It was the task of the guilty man to bear openly his condemnation and the truth
of the crime that he had committed . . . in him, on him, the sentence had to be legible for all”
(43). That is, the punishment was a text — a system of marks, a discourse — which articulated
the will and power of the sovereign (not the nature of the transgression or the character of the
individual).

7
In numerous critical works surveyed in the preparation of this essay, many of the
authors mistakenly simplify ' in their claim that Foucault investigates only
two modes of discipline, that of the body and that of the soul  which is representative of the
outcome  but Foucault specifically outlines “three ways of organizing power,” three modes of
disciplinary discourse (' 130). In fact, Foucault’s leading question of the work, asks why two
 that of the tortured body and that of the collective circulation of signs  were abandoned in
favor of the third  the prison which segmented the individual and created the self;analyzing
soul.

12
 The second strategy was forwarded by the “reforming jurists,” who claimed that the
community was obligated to protect itself from those who challenged the stability of the whole.
In this case, crime, in the words of Dreyfus and Rabinow, “became not an attack on the body of
the sovereign but a breach of contract in which the society as a whole was the victim” (148).
Like the punishments associated with the sovereign, this mode also relied on public punishment,
but the less dramatic, more regulated, sentences principally abolished the use of inhumane
torture. Rather than concerning itself with reinstating the power of the sovereign, this new effort
sought to discourage criminal activity by openly displaying the punishments as examples for the
masses. The jurists saw punishment as a reformist procedure to “re;qualify” individuals to be
active, participating members of the social body (' 130). In this effort, the ideal punishment
was considered to be that which was “transparent to the crime that it punishes” (' 105).
Reminiscent of Dante’s symbolic retribution, the reformers thought that the punishment should
represent the crime. For example, they claimed that “he who has used violence in his crime
must be subjected to physical pain; he who has been lazy must be sentenced to hard labor; he
who has acted despicably will be subjected to infamy” (' 105). Nathaniel Hawthorne’s
* % is a good literary representation of this strategy. The embroidered letter publicly
acknowledged the transgression and revealed the character of the accused, not the sovereign’s
(nor God’s) power.8 In other words, the punishment again functioned as a text —“a whole
technology of representations” (' 104) — that actually signified the transgression and could be
easily read by those who witnessed the punishment. Like the first strategy, this type of
punishment sought to “open up a book to be read” (' 150), but the signs actually referred to

8
This could easily be mistaken for the discourse of the corporeal spectacle, which is
precisely what Ellen Goldner does in her article “Monstrous Body, Tortured Soul: Frankenstein
at the Juncture between Discourses.” Using a Foucauldian methodology, she mistakenly claims
that Hawthorne’s * % is characterized by a “change in emphasis from public body to
private soul . . . as the novel turns its attention from Hester Prynne to Arthur Dimmesdale” (30).
As mentioned, however, Hester’s body is not vengefully marked in order to reinstate the
sovereign’s power (unless one were to argue that this was God’s punishment rather than the
magistrate’s, which would be unconvincing and certainly alter the interpretation of the narrative).

13
transgression rather than the will of the sovereign.9 Subsequently, it can be argued that the shift
in strategies relied on the same stable signs, but the referent had been markedly transformed.
The third mode of punishment addressed by Foucault detention or incarceration (the
modern system)  was first discouraged because of the perceived economic burden on the
community. Even though a carceral system was “not what the eighteenth century reformers had
in mind” at the beginning, in the end it turned out to be “the simplest and cheapest solution” (9/
75, 80), and it is the system now most widely adopted. The reformers realized that the
economic burden could be shifted to prisoners through forced labor, thus enabling them to pay
for their own incarceration and making the model much more attractive.
Significantly, the implementation of the prison system also marks the adoption of a more
general invention of “a whole technology of human training, surveillance of behavior,
individualization of the elements of a social body” (9/ 80), which Foucault identifies as the
technology of Discipline is a strategy that constructs, manipulates, and controls
individuals and their bodies via complex mechanisms of surveillance and documentation. By
focusing on knowing and understanding the “soul” or psychology of the individual, the body
came to be understood as that which could be “subjected, used, transformed, and improved,” ('
136) rather than that which needed to be marked and destroyed. In other words, the “techniques
of power” were reorganized, resulting in a new model of discipline that observed and controlled
the individual rather than physically punished the body. Dreyfus and Rabinow point out: “The
application of punishment was once again inscribed on the body, but its aim was no longer to
crush, dismember, and overpower it. Rather, the body was to be trained, exercised, and
supervised” (152). The end result of this new technology is the construction of the modern
“docile” body, a subject whose very social acceptance and collective recognition is predicated on
his / her compliance within multiple networks of invisible, but always present, disciplinary
powers. The shift is a non;teleological moment in history when new forms of knowledge
(epistemes) forge new realities that oppose, challenge, and deny the continuation of the prior era.

9
The same symbolic representation is articulated in Foucault’s description of the lepers
in / 0 3 In this case, the outwardly visible signs of disease were
representative of their transgression against God  the marks of the illness referring to the
transgression.

14
 These three dissimilar models are crucial to this dissertation in that they identify distinct
modalities at play in Kafka’s narratives “In the Penal Colony” and Both narratives
mark the moment at which one discourse formation is abandoned in favor of another, and it also
narrates the obstinate return of the former in the subsequent confrontation that ensues.
Articulated from very different discursive positions despite their simultaneous authorship, the
punishments described in the two works are both inscribed on the body, but similar to Foucault’s
analysis, the referents (the objects that are punished) are slippery and dissimilar. In the end, the
reader can only understand the two works as a representation of the fracture, confrontation, and
transition of discontinuous, disciplinary discourse formations.

Failure to acknowledge the collision of disparate judicial modalities in and “In

the Penal Colony” will always result in an incomplete understanding of the texts. The core
premise of this work is based on the assumption that Kafka’s texts articulate an interesting
collision of specific discourse formations, and this epistemic altercation accounts for the
apparent discontinuity in the narratives and the understanding and treatment of the bodies.
The philosophies and histories of Michel Foucault render a method that helps explain
these assertions. However, a discussion of the term and its associated complexities is
first necessary. The term , in Foucault’s work (and within this project), does not refer
to singular linguistic units or utterances. Rather, Foucault understands discourse as a field or
grid which governs experience and renders understanding and experience possible and knowable,
something similar to an ahistorical, atemporal structure. (Still, Foucault adamantly opposes the
label of ) In order to understand the use of Foucault’s term, it is helpful to begin
with Heidegger’s conception of ' , which posits existence as a or a , an
ontological space. Amidst the buzzing confusion of Nothingness, there unfolds an ordered
clearing — the realm of experience. As Dreyfus and Rabinow acknowledge, “Foucault and the
hermeneuticists agree that practices ‘free’ objects and subjects by setting up what Heidegger
calls a ‘clearing’ in which only certain objects, subjects, or possibilities for actions can be
identified and individuated” (Dreyfus 79). Foucault posits as that which renders
experience knowable and objects intelligible within this ontological space. Absent in his earlier
work, the + is later forwarded as the practice which clears the space in which

15
objects, subjects, and the constituent discourses manifest. Power in this case does not function
in the hands of a specific person or institution. Rather, it is that (non;discursive) field which
constitutes a “domain of objects” on which discourse functions by constructing, perpetuating,
governing, limiting, subverting, and affirming knowledge and experience ('% 234). As Gerald
Bruns explains, “Discourse is made of institutions, rules, practices, objects, events (as well as
gaps and voids), but is nothing in itself” (66).10 Enveloped within this general term are
individual or that speak to specific bodies of knowledge (i.e.
madness, sexuality, economics, discipline, and so forth).11
In terms of this project, I am most concerned with the discourses of law and punishment
operating within the space from which Kafka wrote. He wrote at a time in which the judicial
paradigm was shifting which coincides with Foucault’s understanding that discourse is
continually in flux (thus the rejection of structuralism). Although Foucault does offer an

10
While discourse functions beyond the constraints of language, it is, I would argue, the
fundamental ordering principle of this ontological space. In , Foucault
forwards a series of which coincide with macro;narratives within which human beings
have understood themselves and their world. In his later works, Foucault connects these
discursive practices with the function of power and elaborates the interconnectedness of the
terms.
11
Foucault is not concerned with the origins of this space, and it does not refer to a
transcendental meaning or something “out there.” Nor is he concerned with the truthfulness of
discourse. Rather, his projects are largely descriptive tracts which bracket meaningfulness. As
Dreyfus and Rabinow point out, “He contends that, viewed with external neutrality, the
discursive practices themselves provide a meaningless space of rule;governed transformations in
which statements, subjects, objects, concepts, and so forth are taken by those involved to be
meaningful” (49). He sets out to outline the rules and conditions that manifest in a certain age
that made objects, experiences, and subjects possible. For example, one might consider the past
(pseudo) scientific consideration of homosexuality as that which is pathological and constituent
of mental illness as categorized within scientific discourse. The category itself is a product of
discourse, and the classification was made possible by those invested with the power to make
acceptable truth claims.

16
occasional causal explanation for the shifts, he is more interested in the operation, function, and
dispersal of power and how these relations manifest in a text, and this is what makes Foucault’s
methods so appealing to Kafka studies. Kafka’s texts precisely articulate a moment in which the
structures are replaced, and radically new ideas begin to surface. In this case, the catalyst was a
momentous, complex, and global change in the schema in which the world was thought to
function.12
Foucault asserts that each subject (including an author) necessarily speaks from a position
within a specific set of historical rules which determine the boundaries of what can be thought
and said. He is suspicious of “such discourse as the ‘book,’ and the ‘ ’” because he senses
that they are not as “immediate and self evident” as they appear ($& 135). Foucault goes to
great lengths to illustrate that these structures are not universal or trans;historical; rather, they are
static structures unique to the specific, historical moment. Consequently, Foucault refuses to
generalize from documents by resisting the temptation to say that the document expresses the
relations of an era. In other words, a particular document (i.e. a piece of fiction) will not reveal
any universal truth about history, but it will reveal the structures that allow it to speak, and these
structures, rules, or governing apparatuses all organize and construct experience (reality) of the
particular moment. In the case of Kafka’s work, the discourse is at odds with itself and this
battle is the source of the Kafka’s interpretive mystery.

%% ! " #
A consistent interest of Foucault’s work is the identification of historical moments at
which meaning(fulness) shifts. A core strategy of both his archeological and genealogical
investigations is to identify “the possible ? inherent in discourse, which “are
characterized in the first instance as : two objects or two types of
enunciation, or two concepts may appear, in the same discursive formation, without being able to
enter  under pain of manifest contradiction or inconsequence  the same series of statements”
($& 65). Identification of these points of diffraction or discontinuities accounts for a split in a
discourse formation and invention of new possibilities and new discourse systems. At the
moment of the split, however, it is possible for “various mutually exclusive architectures
12
Some argue that the change can be characterized by migration toward capitalism
(Reimann, Richter, Hermsdorf).

17
[structures] to appear side by side or in turn” ($& 66), characterized as a battle of sorts in which
one eventually wins over the other.
The departure in punitive practice, Foucault claims, has been too hastily attributed to the
humanization of punitive method and theoretically ignored. In his typical fashion of challenging
that which appears as obvious, he disputes the idea that disciplinary mechanisms have simply
and naturally evolved, dialectally advancing closer to a definitive, more humane, penal order.
Problematically, the conventional, historical account of the change in disciplinary practice
assumes a series of systematic, almost self;evident, set of reforms which progressed from an
ancient practice (which employed the inhumane, monstrous torture of the human body) to the
modern carceral model (which removes the offending subject from the community rather than
publicly torturing the individual’s body). But, Foucault asserts that the shift in disciplinary
technologies was born of abrupt change, a “hurried substitution” of disciplinary technologies in
which the violent regimes of the past were “superceded by a subtle, calculated, technology of
subjection” (' 220;21).
Corresponding with Foucault’s description of dissimilar judicial models in '
and the constituent diffraction, the methodology of this dissertation is based on
Foucault’s contention that there are certain pieces of literature that seemingly bridge
epistemological domains, highlighting the transition between different forms of knowledge 
different ways of knowing and experiencing the world. For example, Foucault calls attention to
' 9 + as a work that vacillates between the “Renaissance” and the “classical” epistemes.
Likewise, he claims that Sade’s work speaks from “the threshold of modern culture” ( 210).
These works of literature call attention to Foucault’s fascination with discontinuities in that they
function within the confrontation of disparate forms of knowledge, articulating (giving voice to)
an epistemological shift, a significant change in how the world is organized and understood. A
good example of this shift which is particularly applicable to this investigation is the following in
which Foucault describes Napoleon (with whom Kafka was coincidentally fascinated):
The importance of the Napoleonic character probably derives from the fact that it
is at the point of junction of the monarchical, ritual exercise of sovereignty and
the hierarchical, permanent exercise of indefinite discipline. He is the individual
who looms over everything with a single gaze which no detail, however minute,
can escape. [. . . . ] At the moment of its full blossoming, the disciplinary

18
 society still assumes with the Emperor the old aspect of the power of spectacle.
As a monarch who is at one and the same time a usurper of the ancient throne and
the organizer of the new state, he combined into a single symbolic, ultimate figure
the whole of the long process by which the pomp of sovereignty, the necessarily
spectacular manifestations of power, were extinguished one by one in the daily
exercise of surveillance, in a panopticism in which the vigilance of intersecting
gazes was soon to render useless both the eagle and the sun. (' 217)
In other words, the moment of Napoleon’s rule functioned within the boundaries of two
distinctive, and dissimilar, disciplinary discourses which were colliding, competing, and
eventually coalescing.13
Such is also the case in Kafka’s narratives. Works of literature like these function within
a singular space occupied by colliding discourse formations, which, in turn, can help the reader
negotiate the unique change in that specific field of possibilities. Here, I argue that Kafka’s two
works, “In the Penal Colony” and the unfinished novel , speak from this same juncture
as the previous description of the Napoleonic era. The texts speak from the very moment at
which spectacular sovereignty is usurped and in the process of conversion to the discourse of
discipline and surveillance. Hence, to Foucault’s examples, I here add Franz Kafka’s fictional
representations of vacillating, judicial discourses in “In the Penal Colony” and .
The vacillation between formations in Kafka’s work is even more remarkable,
considering that Kafka’s two works were written almost simultaneously.14 “In the Penal
Colony” represents the logic of the inquisitorial model in conflict with Enlightenment reason.
On the surface, it appears to be a conflict between the barbaric old and the civilized new, but the

13
Foucault refers to historical moments such as these as “events.” Foucault’s use of
“event” is different than the traditional historian’s in that an event is “not a decision, a treaty, a
reign, or a battle, but the reversal of a relationship of forces, the usurpation of power, the
appropriation of a vocabulary turned against those who had once used it, a feeble domination that
poisons itself as it grows lax, the entry of the masked ‘other’” ( ! 154).
14
Both relatively early works were begun “during the first months of the war”
(Wagenbach 26). However, “In the Penal Colony” was not published until 1919, and
was never finished.

19
narrative also articulates a return of the Other and its associated logic that is summoned in order
to (re)dispose its inhumanity. The same is true in the case of The new technologies
of discipline and reform are haunted by the constant reappearance of the old models (the Other),
seemingly unwilling to release their (physical) hold on the body. Approached from this
perspective, the workings of the judicial structures actually become understandable — less
bizarre, less surreal, and less likely to be associated with the absurd. This is striking in that it
calls into question the basic, overworked interpretive models that easily categorize the texts as
Kafkaesque and oversimplify the (literal) judicial structures within the works.
In Foucauldian fashion, this project does not seek to unify a text with Kafka’s biography
or attempt to decipher a text’s implied or symbolic meaning. Rather, this project is first an
identification of specific (and I think, interesting) disciplinary discourse formations from which
Kafka speaks and delineates within the narratives. Foucault’s history of punishment presents a
structural, historical outline of discourse formations from which Kafka speaks. Once the reader
is able to situate the texts within this framework, the apparent vacillation, discontinuity, and
inherent confusion can be understood to be a result of the collision — the diffraction. This is
striking in that this thesis roots the tension of the work in the literal and distances it from the
surreal, the allegorical, or even the Kafkaesque. Rather, this approach reveals the political —
Kafka’s desire to represent the “negative aspect” of his world. Approaching the texts as
articulations of diffraction encourages an interrogation of the judicial paradigms present in the
texts and attempts to explain their literal representations. The identification, description, and
explication of the literal judicial formations allows the subsequent conclusions:

" # %" "

Kafka is a man who is articulating resistance in his fiction. That is, the artifact creates a
singular space to display the failure and maliciousness of a stubborn judicial modality. Living
amidst a regime which constantly guaranteed reform, but always broke its promise, Kafka fights
the return of the repressed and voices the constant threat of violence while also illustrating the
historical change in disciplinary tactics. “In the Penal Colony” alludes to the realm of the Other
disciplinary model, but also marks the real threat of its resurrection. Similarly, makes
good on the prophesy of the Old Commandant’s return in the form of the attic courts. Kafka’s
work gives voice to the territory of the Other, articulates its failure and its danger. Most

20
importantly, Kafka’s narrative explains the logic of the Other, while ultimately revealing its
inhumanity.

! -
Kafka’s texts are made possible by the historical space (and the field of possibilities)
from which they are written. As noted previously, the texts under consideration are voiced at
the moment at which the disciplinary paradigm is shifting, thus creating an interesting tension in
and between the works. While this tension has been misunderstood as the articulation of
existential angst or religious allegory, the real source of the tension is a disruption in the fields of
possibilities. In other words, the struggle is not that of the explorer and bizarre, obsolete
practices, not between Joseph K. and the bureaucracy. The source of the tension in both cases is
the struggle of a protagonist caught in the experience of disparate disciplinary modalities.
The identification of the discontinuity presents a challenge to the term “Kafkaesque” by
recognizing the literalness of the works. Kafka’s texts are an archive from which the diffraction
in disciplinary discourse is spoken. Ultimately, this project identifies and delineates specific,
though internally disjointed, discursive spaces from which Kafka speaks. This singular disparity
at once renders his articulations possible and discloses the workings and limitations of discourse.
In other words, the narratives are understood as very real enunciations of competing discourse
formations, articulating dramatic collisions of competing paradigms and pushing the reader
toward the outside edges of discourse where he or she uncomfortably confronts the alterity of
obsolete judicial paradigms.

!% !0 *

An understanding of the disparate formations explains Kafka’s presentation of the body

and the disparate ways in which it is historically inscribed, divided, manipulated, and controlled.
Here, I situate Kafka’s representations of tortured bodies within these competing paradigms and
analyze the complex punitive methods presented in Kafka’s oeuvre through the lens of
Foucault’s philosophy. Contending that the body is the site at which power is exercised,
Foucault plays on words and imagines a “political ‘anatomy’” in which a philosophical analysis
would concern itself with the operation of the “body politic”  and its morphology: “a set of
material elements and techniques that serve as weapons, relays, communication routes and

21
supports for the power and knowledge relations that invest human bodies and subjugate them by
turning them into objects of knowledge” (' 28). In other words, the body is the material
surface on which disciplinary practices or laws are written, known, and executed.15
Foucault’s concentration on the body is of particular interest to those concerned with
Kafka studies because the condemned, punished, and otherwise tortured body is thematically
central to Kafka’s work as well. In a diary entry, for example, Kafka writes to Milena, “Yes,
torturing is extremely important to me, I'm preoccupied with nothing but being tortured and
torturing” (%/ 216).16 The theme of the tortured, punished body also manifests in the writer’s
fiction. For example, Gregor’s body is hideously transformed in “The Metamorphosis,” a
performer starves himself in “A Hunger Artist,” the physician attends “swirling wounds” while
his nurse is raped in “A Country Doctor.” Malynne Sternstein, author of “Laughter, Gesture,
and Flesh: Kafka's ‘In the Penal Colony, ’” confirms the fascination, adding that Kafka’s “tales
are retold of, by, and about the body as phenomenon” (318). But while scholars such as
Sternstein have discussed the sensate body and its gestures, it must also be understood as the site
of judgment and punishment, the site at which discourse is affirmed.
In the texts under consideration here, the body is understood as the site at which
judgment is ultimately realized. For example, the law is literally inscribed on the flesh in “In the
Penal Colony” while presents an inversion and transition of the practice. The body is
still under attack in this case, but it is now inscribed from within. That is, the new discourse
inscribes (and tortures) by operating on the mind — the . Still, in both cases, the

15
Foucault asserts that penal practices should be considered, not as “legal theories,” but
as a “chapter of political anatomy” in which strategies of power address, manipulate, or
otherwise subject the body (' 28). He seeks to analyze the complex social aspects of
punishment (positive and negative), the use of punitive technologies as tactical uses of power,
and the soul’s relation to the “way in which the body itself is invested by power relations” ('
24).
16
Later, he tells Milena, “I’d like to be your pupil and make mistakes all the time, just in
order to be scolded by you all the time; one sits on the school;bench, hardly daring to glance up,
you are leaning over me and all the time above me glitters your forefinger with which you raise
objections, is this true?” (%/ 51)

22
manifestation is outward and the body continuously functions as a text which is read and acted
upon. Likewise, in both cases, the judgment occurs in the presence of a (albeit sometimes
invisible) disciplinary entity with the power, ability, and willingness to punish.
As noted previously, Foucault’s history traces the role of signification through three
distinct discourse formations. In the first case, the body was the site at which the truth of
sovereign justice was inscribed. Next, humanist reformers, sought to relocate the site at which
power was exercised by inscribing the interior. That is, the mind became “the surface of
inscription for power, with semiology as its tool” (' 102). Although the site of inscription had
changed, the body continued to emit signs which opened up “a book to be read” (' 111).
Kafka’s texts affirm the role of the body as the site of inscription (“In the Penal Colony”), but it
also affirms a way in which the body continues to signify within the parameters of the
disciplinary model (i.e. ). In other words, this investigation adds to an understanding
of the workings within the texts, and it also adds to Foucault’s explanation of the body as
signifier.

23
 ' &

' (

Foucault prominently engages literary works in his books as examples of specific

epistemic configurations, and, on occasion, he also wrote about literature and the function of the
author. Foucault’s literary interests included classical, avant;garde, and modern literature
(Eribon). The specific authors on which he wrote include Robbe;Grillet, Flaubert, Jules Verne,
Mallarmé, Hölderlin, Cervantes, Rousseau, Diderot, Borges (Eribon, Taleb;Khyar, et al.). He
was very interested in the transgressive literature by Sade, Bataille, and Blanchot, and he
completed a book length study on Raymond Roussel. Not surprisingly, it is also noted that
Foucault “enthusiastically” read Kafka in the original German (Eribon 31).
Although Foucault’s contribution to literary studies is well established and indisputably
valuable, problematically, his pronouncements on the topic are varied and often conflicting.
Even though Foucauldian applications are commonplace in literary and cultural studies, he never
really established a theory of literature per se, and his positions on the topic, like many of his
other polemics, changed over time  often contradicting or disagreeing with that which came
before and after. Consequently, his different theories have been appropriated by different
scholars to communicate and support a continuum of various interpretive strategies begging the
question of which Foucault is the critic speaking. Numerous commentators (Shumway,
Sheridan, Rajchman, Freundlieb, et al.) note that Foucault’s writings do “not constitute a single,
coherent body of thought” (Freundlieb 302), and this is particularly true of his positions on
literature and language, which lack a “systematic, methodological” position (Freundlieb 302).
The literary field certainly needs a comprehensive account and analysis of Foucault’s positions
on literature and the inter;relationships between language, literature, and art. (Bruns comes
closest in his understanding of Foucault’s notion of + , an experience at the limits

24
of discourse — the limits of understanding.17) But this is not that project. It is necessary,
however, to outline precisely the methodology and aspects of Foucault’s work on which this
project is based, as well as discuss the space that literature fills within these systems.
In this essay, I focus on Foucault’s genealogical period, most prominently '
, but the emphasis on discourse is continuous in his works, and the archeological premises
cannot be ignored. Claiming that competing judicial models (discourses) and the cultural power
associated with each are the source of the narrative tension in Kafka’s works, this project
investigates these competing models in terms of historical shifts, or what Foucault labels as
“ruptures,” “discontinuities,” or “events.” Foucault approaches historical discontinuities or
lacunae from two subtly different methodologies  “archaeology” and “genealogy”  but a
concentration on the disruptive, historical incidents remains constant.

1
Archeology approaches the discontinuous event through an investigation of the discourse
of a particular moment by inquiring as to what structures, rules, or codes render certain
statements, disciplines, institutions, and forms of knowledge possible. Archaeology revisits the
historical moment and resurrects or explores the synchronic (simultaneous), rather than
diachronic (linear) moment, replacing the theories of static, continuities with a transformational,
17
Gerald Bruns explains that Foucault sought a
relationship between literary or poetic language and the limits of experience, or
more exactly between the of language (its resistance to signification)
and the transformations of subjectivity that this materiality puts into play (or
perhaps exhibits) in the form of noncognitive experiences — experiences that
Foucault characterizes variously in terms of death, absence, exteriority, and
(interestingly) freedom. (58)
In other words, the artist is somehow able to escape the shackles of ordinary discourse and bring
the reader to edges of reason, morality, and the overall institutional environment of discourse.
Bruns explains Foucault’s notion of Otherness or exteriority as “anarchic experience, (experience
on the hither side of principle and rule)” (66), and he explains that this “terrifying” otherness
“lies outside of our grasp as cognitive subjects but not outside our experience — specifically a
experience” (68).

25
cultural logic18  a deep “sedimentary strata,” which discloses a series of vertical (rather than
horizontal), unstable structures ( ) which regulate what members of an era thought, said,
and practiced; it is an “interrogation . . . which does not follow reason in its horizontal course,
but seeks to retrace in time that constant verticality which confronts European culture with what
it is not” (/0 + ).
In this case, Foucault approaches a text as an historical  a domain of things
said  which can be understood in terms of surface meanings and underlying structures that
govern its emergence (rather than an ultimate, hidden, universal truth).19 He asserts that a text
represents a singular, historical occasion in which specific utterances  and not others  are
produced according to singular, specific codes or organizational grids (signs, rules, rituals) which
are unique to a given culture at a specific moment. Rather than interpret the meaning of these
statements as if they could offer a remainder of previously undiscovered truth, Foucault
questions the “conditions of possibility,” the ways in which statements are enabled in the first
place. In other words, he asks how it is that a literature came about: “Beyond meaning, Foucault

18
Although this statement colors Foucault a structuralist, he adamantly denied such an
affiliation many times because structuralism implies a deep structure that explains and predicts
change  an apparent cause and effect which he so ardently denies: “I am not what is called a
structuralist” ( *' 72). Or, more aggressively, “ In France, certain half;witted ‘commentators’
persist in calling me a ‘structuralist.’ I have been unable to get it into their tiny minds that I
have used none of the methods, concepts, or key terms that characterize structural analysis” (
xiv).
19
This combination of surface meanings and underlying structure is precisely that which
gives critics and commentators so many problems. On one hand, his theory seems consistent
with postmodern thought in its concentration on surface meanings, while on the other, he appears
to be quite structuralist in his identification of deep structures that govern meaning. However,
one must keep in mind that these structures are not historically stable or universal, which is very
opposite the thought of structuralist theory. Where structuralists posit a universal or essential
human experience that is inherent in all cultures past and present, Foucault identifies a changing,
non;historical experience that is unique to a given moment; furthermore, these experiences or
understandings are disposed to radical, spontaneous transformation

26
wants to know what made it possible: the circumstances of meaning, its history” (Taleb;Khyar
187).
Foucault’s method challenges the guarded, humanist belief that literature functions as a
portal to an ahistorical, universal understanding of human experience. Rather than search within
the boundaries of the English literary canon for a unified, transcendental meaning of human
experience or universal wisdom, he contends that literature provides an understanding of a
human experience that is strictly historical and rejects the notion of the elusive universal
meaning that is hermeneutically accessible. Foucault dismisses the idea that history is a search
for transcendental origins, “essential traits,” “final meanings,” or “values” ( ! 89). He
understands literature as a discourse like any other which constructs and controls experience,
adhering to the same pattern of all discourses, which Foucault considered as “the primary sites
for the social production of knowledge and truth” (Freundlieb 319). It seems then, that literature
would act like any other discourse in that it produces, reinforces or occasionally subverts the
institutional claims to truth. Subsequently, the study of literature from this position encourages
an inter;textual understanding of a particular, culturally;produced knowledge and its respective
discourse formations.
Subsequently, the literary text is not simply a transparent representation of an absolute,
unconditional truth. For example, the plastic and literary representations of madness in the
Renaissance signal the perception that madness contained wisdom despite its folly, which is a
perception unlike that of our own period. Hence, literature and art reveal the way the world and
its objects, experiences, and perceptions were organized (structured) and controlled. This
approach, loosely understood as New Historicism, examines and organizes documents (the
“archive” of which literature is a piece) in order to understand the exchange of power and
motivations that aid the understanding of a particular cultural moment.

# ! 1
Whereas archeology interrogates discourse, the genealogical methodology isolates the
non;discursive space where power is exercised and identifies the function and value it fabricates.
“Genealogy,” a term adopted from Nietzsche, examines the descent or emergence of practices in
terms of power struggles, especially as they pertain to the body. In the words of Dreyfus and
Rabinow, “The genealogist is a diagnostician who concentrates on the relations of power,

27
knowledge, and the body in modern society” (105). Now linking discourse to power20 at this
stage of his career, Foucault explains that “in every society the production of discourse is at once
controlled, selected, organized, and redistributed according to a certain number of procedures,
whose role is to avert its powers and dangers” ('% 216). In other words, power functions to
control, create, and manage knowledge and the non;discursive practices to which they are
necessarily associated (hence the formation of the now famous couplet power / knowledge).
Foucault’s ' attempts to write a history of punishment, a genealogy,
“against the background of a history of bodies” (' 25). Rather than approach punishment as
an ethical or legal problem, Foucault’s approach centers justice as a systematic operation on and
through the body. The thesis of ' is the assertion that the body, more
specifically, power over the body, is at the center of the social, economic, and political fields
from which we understand our present selves. Foucault asserts that “power relations have an
immediate hold upon it [the body]; they invest it, mark it, train it, torture it, force it to carry out
tasks, to perform ceremonies, to emit signs” (' 25). The body is that which produces, but in
order for it to produce effectively (the positive side of punishment), it must first be a subjected
body, which is
not only obtained by the instruments of violence or ideology; it can also be a
direct, physical, pitting force against force, bearing on material elements, and yet
without involving violence; it may be calculated, organized, technically thought
out; it may be subtle, make use of neither of weapons nor of terror and yet remain
of a physical order. That is to say, there may be a ‘knowledge’ of the body that is
not exactly the science of its functioning, and a mastery of its forces that is more
than its ability to conquer them: this knowledge and this mastery constitute what
might be called the political technology of the body. (' 26)
This technology of the body is not, however, located in a singular state apparatus or “systematic
discourse;” rather, it is a diffuse mechanism that saturates the political field in what Foucault
calls a “micro physics of power” which functions at various levels within institutions such as the

20
Foucault concluded that, in both instances, his works (archeological and genealogical)
were always concerned with power and its interest in normalizing, shaping, or otherwise
constructing the subject in one form or another.

28
military, the school, the factory, or even within the individual citizen. The exercise of power is
not an appropriation of the subjected or dominated body; it is a strategy which operates
according to “dispositions, maneuvers, tactics, techniques, functionings” (' 26). In this space,
the one who dominates and the dominated are at war with another, always trying to subvert the
other. “In short this power is exercised rather than possessed; it is not the ‘privilege,’ acquired
or preserved, of the dominant class, but the overall effect of its strategic positions  an affect
that is manifested and sometimes extended by the position of those who are dominated” (' 26;
27). Thus, it appears that all human beings are implicated in this exchange of power: “it invests
them, is transmitted by them and through them; it exerts pressure upon them, just as they
themselves, in their struggle against it, resist the grip that it has on them” (' 27). Foucault
claims that power does not constitute a system of those who have power (the state or a ruling
class) and those who are oppressed (the citizen or the proletariat). Rather, power functions
according to an extended network of strategies and exchanges. Likewise, “they are not
univocal; they define innumerable points of confrontation, focuses of instability, each of which
has its own risks of conflict, of struggles, and of an at least temporary inversion of the power
relations” (' 27).

2 " !#* & /

Archaeological and genealogical methods are complementary rather than competing
models. As Shumway puts it, the difference is simply “a matter of whether discourse, or its
external limits and conditions will receive more emphasis, and of the reconceptualization of
those limits and conditions” (108). Both advance similar positions on the subject and power,
and, in both cases, Foucault argues that the subject is one who is acted on  by both discursive
and non;discursive practices. He writes, “My objective [ . . . ] has been to create a history of the
different modes by which, in our culture, human beings are made subjects” (* 208). He
recognizes that in each situation, it is a discourse that speaks the individual  not an
autonomous subject that speaks  and, moreover, he asserts that if such discourse happens “to
have such a power, then it is we, and we alone, who give it that power” (216). In other words,
power invests discourse with license to create our reality; the world and its beings are
constructed discursively.

29
 Similar to an archeological investigation, a geneologiocal approach looks to the
“historical conditions which made various types of quite specific and differentiated subjects
in the first place  i.e. the mad, the criminal, the pervert” and “how particular kinds of
subjects [. . .] were as effects of discursive and power relations” (McHoul 4, 91).
Subsequently, historical change is “no longer thought of as something brought about by a special
creative subject or scientific ‘hero’ [. . .] who could be called upon to effect a theoretical
revolution” (McHoul 3). On one hand, Foucault explains how discourse makes claims to truth
that define the subject; specifically, it separates the “normal” from one that is deviant or
otherwise pathological. For example, the discourse of psychiatry, until very recently, has
defined homosexuality as pathological. On the other hand, Foucault also illustrates how
institutional practices manipulate and control the subject by non;discursive practices such as
surveillance. If the subject is in a constant state of surveillance, particularly self;surveillance,
then behavior is normalized and homogenized. Thus, the subject is invented through discourse
(which, itself, was formed in the field of power) and maintained as such by practices of power
(surveillance, punishment, ostracism).
There are many interesting modern (Adorno, Horkheimer, Benjamin) and postmodern
(Deleuze) theoretical positions from which Kafka’s work could be profitably read. One should
consider the many interpretations and divergent readings, as Edwin R. Steinberg suggests, in
efforts to “resolve the contradictions among the various analyses that suggest divergent readings”
(492). In this essay, I hope to offer the reader an otherwise overlooked perspective on Kafka’s
fictional, judicial world, one that exists on the surface — that is, the literal space of the text.
This work will ask what new insights can be gleaned from Foucault’s notions of the shifting
paradigms of justice and penal technologies and focus on the surface texts (archive) that do not
point to anything outside of themselves, but instead reveal the historical position from which the
texts speak.

30
 &

) & '
 ' & '

'

( - - @ @
@
A
BMichel Foucault 21

* A &-

—Franz Kafka 22

21
Quoted in Macy (270).
22
(1).

32
 " %3 4 5
At the beginning of Kafka’s celebrated novel , Joseph K., a high;ranking bank
official, starts his morning as he would any other. He expects the landlady’s cook to enter his
room with breakfast, but he is surprised by a mysterious, aloof stranger who astonishingly
informs Joseph K. that he has been placed under arrest. The nature of the alleged transgression,
however, is unclear and the specifics are never revealed in the unfinished novella. The only
explicit information about the ostensibly legal matter is uttered by the seemingly unreliable
narrator who dispassionately and detachedly informs the reader that someone “must have been
telling lies about Joseph K., for without having done anything wrong, he was arrested one fine
morning” (1). Readers who are familiar with Kafka’s writings will inevitably note the similarity
of this line to the opening sentence of “The Metamorphosis,” which begins, “One Morning, upon
awakening from agitated dreams, Gregor Samsa found himself, in his bed, transformed into a
vermin” ( 0: 117). The resemblance, however, easily leads to an interpretive trap in that the
similarities too easily link the former narrative to the realm of the surreal. While “The
Metamorphosis” is a delightful story of the absurd and an excellent example of what is now
referred to as markedly “Kafkaesque,” is mistakenly “fixed in many people’s minds as
the quintessence of the ‘Kafkaesque’” (Robertson 87). The common expectation of an
encounter with the absurd in Kafka’s fiction wrongly encourages a reading of that
ignores the literal, more realistic aspects of the work. Whereas waking up and finding oneself
transformed into a large beetle would be shocking and surely quite impossible,23 waking up to
intruding warders and being placed under arrest would have been a very real possibility in
wartime Prague.
So, what if — “the quintessence of the ‘Kafkaesque’” — is not so Kafkaesque
after all? Max Brod, Kafka’s closest friend and posthumous biographer, actually tried to
disassociate Kafka’s work from the strange or surreal. While Brod does not comment on the
real political climate or the specific legalities of the era, he warns that Kafka’s fiction should not
so easily be relegated to the realm of the unfamiliar because in the end, Kafka was articulating a
23
Howard Fast, however, asserts that Kafka finds a certain similarity between humans
and cockroaches and the transformation from one to the other might not be such an oddity. Fast
goes as far as to say that Kafka’s tale is an “absolute literal presentation” (12).

33
version of his outer world — not his nightmares. Although Kafka mentions the role of his
“inner dream;life” in his diaries, Brod defensively claims, “The strangeness of Kafka’s person
and writing is only apparent, [and . . . ] anyone who finds Kafka singular and attractive on
account of his 3 has not yet understood him” (52). He goes on to explain that in
Kafka’s work, things are revealed “which seem strange indeed” on the surface, but “are nothing
but true” (52). Employing a rhetorical strategy similar to the literary device of
“defamiliarization” forwarded by formalist Victor Shklovsky, who argues that the function of art
is to renew our awareness of objects that have become over;automatized or habitual. That is,
“The purpose of art is to impart the sensation of things as they are perceived and not as they are
known” (Shklovsky 18). Kafka (not so subtly) re;presents — 3 — the malicious
workings of the political;legal system in which he was unhappily immersed. That is, Kafka
makes the real seem strange or absurd. Dmitri Zatonsky makes a similar assertion in his essay
“The Death and Birth of Kafka.” He claims that modernist authors such as Kafka and Joyce had
no choice but to unveil the “incurable sickness” of their realities. Kafka, he claims, “strove to
locate some definitive ‘truth’ at the limits of abstraction [. . .] pushing everyday life situations to
absurd and grotesque forms, to a condition in which reality takes off on its own power” (17).
However, far too many other readings focus on the aspects of the latter and ignore the former.
To understand the writer, the reader must understand the socio;political space — the truth, the
reality — from which the author spoke (or that which was spoken through him). In fact, it is
this actuality — the very literality — that contributes the eerie tone of . Indeed, truth
makes for very strange fiction.

" *
The first clue that Kafka is writing about the injustice of his present circumstances is the
arrest. Ironically, the situation, which at first glance may seem odd (even surreal) to the
contemporary reader, is actually an accurate representation of the corrupt Hapsburg Empire. In
Kafka’s beloved city of Prague, citizens were frequently harassed by the police and arrested for
any number of alleged subversive activities against the government. is a
characterization of the system’s inherent cruelty. Although it may appear strange that a man
was arrested because someone has supposedly told lies about him, it certainly could have
occurred (and, in fact, did regularly happen) in the era in which Kafka lived. According to

34
Czech National Socialist deputy at the time, Stříbrný, an “anonymous denunciation” was
certainly enough “to bring about the arrest and imprisonment of any Czech man, woman or
child” (Nosek 55).24 Correspondingly, Robinson, author of “The Law of the State in Kafka’s
-” adds that Bohemia functioned according to Germanized legal system in which
“[p]roceedings were set in motion by an accusation which might be made by a public prosecutor
or a private party” (129). Moreover, those interned (particularly for political crimes) were often
uninformed about the reasons why they were arrested or who accused them; the police were not
required (or always willing) to reveal the identity of the accuser be it the government or
otherwise. So, even if someone had “traduced” Joseph K., it would not be altogether shocking
for Kafka’s readership to understand the allusion. Thus, it seems that it is within the realm of
possibilities that anonymous accusations, particularly those that were politically motivated, were
enough to warrant an investigation and even arrest.

# "" " #
Another clue that Kafka is writing about real conditions is Joseph K.’s early reference to
a “constitution.” In the first pages of the novel, the narrator tells the reader that K. “lived in a
country with legal constitution, [where] there was universal peace, [and] all of the laws were in
force” ( 4). Like the arrest, the reference to constitutional law renders a baffling situation
because it implies that the narrative is set in judicial space in which there were established laws
and recognizable civil rights. But, like the arrest of an innocent, the reference to a constitution
is an allusion to — or another unequivocal sardonic attack on — the powerless Kingdom of
Bohemia. In Kafka’s time, the Kingdom of Bohemia was recognized as an historically,
independent kingdom, but the arrangement was largely ceremonial. Bohemia had officially25
surrendered its rule to the imperial bureaucracy of Vienna which controlled the Bohemian

24
Likewise, Foucault’s history of disciplinary practices notes that pre;reformed judicial
systems had the “right to accept anonymous denunciations” (' 35) and conduct secret
investigations, denying the accused any information of the alleged offense. The truth and
validity of the offense was then often determined in secret without interference from the accused.
25
The crown of the Bohemian Kingdom was offered to the Hapsburg rulers — including
Franz Joseph, the “last monarch of the old order” (Taylor 78) — but the Kingdom was never
actually recognized by the Empire.

35
provinces, and until the end of the First World War, the Hapsburg dynasty oppressively ruled the
country, concentrating the country’s political and judicial power in the hands of the minority
German population. In fact, the German minority controlled most of the power in the
parliament, the newspapers, the schools, and a disproportionate amount of the wealth (Capek
63).
In fact, there were numerous versions of the Bohemian constitution, but the various rights
and privileges granted to non;Germans were always suspended or even repealed. Each version
was almost universally considered to be a “sham” (Taylor 108) and a simple “cloak for
absolutism” (Nosek 3). The constitutions simply divided and distributed Hapsburg sovereign
power into the hands of the German elite who continually opposed any type of real constitutional
reform because, ultimately, the empire desired the creation of a single, great Germanized
region.26
Consequently, the majority (the Czech, Slovak, and Jewish people) of the population,
concerned about the illusion of freedom, became increasingly dissatisfied with the injustices of
the empire. In order to suppress rebellion, the disintegrating Austro;Hungarian Empire relied
heavily on the use of force and coercion to maintain its stranglehold on its peoples of different
nationalities, religions, and languages. Nosek explains the situation as follows:
The arbitrary power of the dynasty is based: upon the organisation of the army,
the leadership of which is entrusted to the Germans; upon the feudal aristocracy
who are the only real Austrians [ . . . ]; upon the power of the police who form
the chief instrument of the autocratic government and who spy upon and terrorise
the population [ . . . ]; finally, the dynasty relies upon the Catholic hierarchy who
hold vast landed property in Austria and regard it as the bulwark of Catholicism,
and who through Clericalism strive for political power rather than for the religious
welfare of their denomination. [ . . . . ] Clearly Austria is the very negation of
democracy. (Nosek 4;5).

26
Obviously, its efforts were unsuccessful and the empire eventually imploded at the
conclusion of WWI, ending the long “misrule” of the Hapsburg Dynasty. See, for example,
) C ! / by Thomas Capek.

36
While the empire constantly made promises for reform, concessions were granted only when
there were no other political alternatives, and, even then, the specific reforms were often
repealed as soon as politically possible.
The situation in Kafka’s novel is similar. Justice is proscribed by the secretive
“extraordinary” courts of the attic, which are representative of the Austrian courts which
functioned in spite of (and outside of) the Bohemian Kingdom. Kafka even equates the power
of the attic courts to those of the Inquisition. Labeled by the author as the “Court of Inquiry,”
the attic court system seemingly functions outside of the realm of public or private controls —
including constitutional law. For example, when Joseph K. relates the day’s events to Fräulein
Bürstner, he informs her that there was a “Court of Inquiry” — but “not a real Court of Inquiry”
( 26). In a sense, the attic courts had the full power attributed to the inquisitory model, but
were not controlled by an ecclesiastical authority. Here, Kafka seems to be name;calling by
making the comparison between the attic courts and the perfidious courts of the inquisition. In
K.’s words, “I called it that because I didn’t know what else to call it” ( 26).

44 #1 -!" # !#* " & - #! #% " #

Both the arrest and the discussion of the constitution in the first pages of the novel serve
the purpose of creating an initial set of opposing, judicial discourse formations which is a source
of early conflict within the novel. Western readers assume a unified system of legalities, but
pre;reformed Europe functioned according to multiple competing and irregular judicial systems.
The initial two formations in the novel are best identified in the conversation with Huld in which
K. recognizes that the lawyer works “at the court in the Palace of Justice, not at the one in the
attic.” ( : 101). This line in the novel is easily glossed, and many a reader (and critic) miss the
announcement that there are multiple court systems (those associated with the attics and those
associated with the palace), each functioning independently, according to dissimilar discourse
formations.
In the first instance, the charade of constitutional law and the impotency of the Bohemian
Kingdom are associated with the “courts of the palace” which characterize the superficial
judicial discourse of the province. The discourse of the palace is a type of institutional fantasy,

37
something akin to a “false consciousness,” which Marx posits as a false understanding27 about
how the world works.28 K.’s excited belief in the reality of this space even leads him to briefly
consider that the arrest might be a “rude joke” initiated by his colleagues at the bank (5), as if the
reality of oppression was simply not possible. This ideology sustains an illusion of individual
rights and liberties to which almost all of the characters in the novel subscribe, but is in fact
imaginary. The tradesman Bloch, for example, refers to the palace courts as those associated
with “ordinary” law — those associated with the everyday workings and business dealing of the
empire ( 172), but this “ordinary” law is impotent at best and imaginary at worst. Kafka
represents the arrest in a “ridiculous fashion” in order to dramatically separate the illusion of
freedom and protection from the real “extraordinary” law imposed by the secretive, malevolent
empire.
Interestingly, this dichotomy of judicial formations is entirely unmentioned in the
scholarship about , but considering the fact that it is only mentioned a few times in the
narrative, it is easily overlooked.29 In itself, the dichotomy seems extraneous, but it serves a
larger, structural purpose. The division of the formations introduces the presence of the attic
court, its associated discourse, and a second, more important, sub;division within in the confines
of this formation.30 In the novel, Kafka is very concerned with the “other” court — the court of

27
Foucault builds on this and adds, “Power is tolerable only on the condition that it mask
a substantial part of itself. Its success is proportional to its ability to hide its own mechanisms”
(!* 86).
28
Andreas Gailus makes a similar claim regarding “In the Penal Colony” in his excellent
article “Lessons of the Cryptograph: Revelation and the Mechanical in Kafka’s ‘In the Penal
Colony.’”
29
Moreover, this initial conflict is eventually resolved toward the end of the novel in the
cathedral when K. is interpellated and at least partially recognizes himself as a subject within the
opposing discourse formations.
30
At the beginning of that narrative, Kafka presents the Court of Inquiry which is
literally divided. When K. enters the hall, he notices that the members seem to be divided
between what appears to be right; and left;sided parties. The scene is somewhat comical. The
room is in a lower class tenement building, and the hall itself has an upper, certainly oppressive

38
the “attic” — introducing the palace court only to establish the otherness of the attic. In fact,
most of the novel is an exposition on the complexities and conflicts within the attic courts.
That is, the discourse of the attic is itself divided, which presents the primary focus of the
narrative and provides the major impetus of the plot. The attic court does not easily fit with an
historical European disciplinary paradigm; it functions at the threshold or fringes of a system that
is at once obsolete, unrecognized (other) and seemingly inhumane while also strikingly modern.
While it is often argued that presents an illustration of the very essence of Modernism,
when one looks closely at the judicial and disciplinary practices of the attic courts, it becomes
clear that the court’s discourse is actually caught in a moment of flux — vacillating between
what might be considered a modern disciplinary system and a very antiquated, inquisitorial
system. Thus, the conflict of the novel is located in an “extraordinary” discourse at odds with
itself. The vacillation of European legal systems within the attics of is a depiction of
the spontaneous and unstable legal reforms of the Austrian empire, characterized by a constant
ebb and flow of judicial alteration, reorganization, and retraction.

gallery, in which the members place cushions between their heads and the ceiling to keep from
scuffing and hurting their brows. When K. is escorted he notices that the crowd is seemingly
divided into two groups, their backs to one another and talking amongst themselves. It is
tempting (as some scholars have done), to divide the membership along political party lines, but
it is my opinion that those explications have little support. That said, an equally vague
supposition might conclude that the two sides represent the opposing discourse models of
reformist and Modern justice.

39
 The following chart helps outline the discourse formations within the novel and aids in
understanding the novel’s structure.
Palace Courts Attics Courts
(Bohemian Kingdom) (Hapsburg Empire)
↓ ↓

Institutional Fantasy vs. Reality

↓

Moment of Reform
↓

& 6 * # 75 * #

5 1( ' /
As I mentioned in the introduction to this project, this conflict mirrors the historical;
political space from which Kafka wrote. According to A. Esmein, author of $ !
0 0 , the “Austrian Code of Criminal Procedure bears the date of
23d May, 1873” (581). Kafka lived and wrote from 1883;1924. Prior to this, the country was
governed according to the codes of 1803, 1850, and 1853. The early models were based on
what Esmein describes as a “pure inquisitorial system” (581) which was most suitable to the
“needs of social repression” (8). The “two predominant features of the model are the
D to discover the culprit, and the employment of torture to obtain his confession” (8).
Within this model, the state functioned autonomously and it was the authority of the sovereign
— not the community — that accused, investigated, and judged, while also maintaining all
legislative powers. The inquisitorial system was momentarily reformed by the code of 1850,
which introduced the “accusatory principle” in which the citizens, rather than the state, exercised
the right to accuse on behalf of the community, performing a social function rather than the
autonomous will of a despot. But progress was abruptly halted by the Act of 31st December,
1851, which “declared that a Code of Criminal Procedure should be made for the whole Empire”
(581). Esmein adds, “That Code suppressed the jury, allowed publicity to subsist only in a
relative degree, admitted of no defense until after the close of the examination, and retained a
system of legal proofs” (581). These problems were again ostensibly remedied, however, by the
constitutional reforms of 1873. The Code of 1873 was a universal code for the entire empire,
which reinstated the jury, but only for the “more serious offenses, political offenses, and those of

40
the press,” but even then the jury would most likely not consist of the peers of the accused (582).
Again, it seems that the empire reverted to the old inquisitorial system in the era leading up to
and during the Great War in which the state again ruled autonomously until its eventual
implosion.
Like the vacillation of paradigms mentioned above, the political / legal discourse of the
attic courts within Kafka’s narrative vacillates between a modern discourse of surveillance and
individuation and the obsolete theater of secrecy and autocratic autonomy. The judicial
discourse of the attics is caught at the moment of incomplete reform. Correspondingly, the
narrative speaks from a position of imperfect and fragmented transformation — accurately
depicting the messy business that is typical of change. The slipperiness of the transformation
manifests in the narrative’s form, replete with starts and stops, confused amalgamations,
separations, and inconsistencies. The legal procedures of the “attic” court, for example, are not
exclusively those of an obsolete, autonomous authority, but neither are they exclusively
constituent of a modern bureaucracy. Rather, the court in functions at the threshold of
both — an inter;space between sovereign justice and a modern system of individuality dispersed
power, and communal surveillance.

" * 1 ) ! "
In ' , Michel Foucault carefully outlines the collapse and substitution
of complex disciplinary transformations, asserting that the end of the nineteenth century
witnessed a rather spontaneous exchange of disciplinary targets in which the body was
exchanged for the “soul.”
It was an important moment. The old partners of the spectacle of punishment,
the body and the blood, gave way. A new character came on the scene, masked.
It was the end of a certain kind of tragedy; comedy began, with shadow play,
faceless voices, impalpable entities. The apparatus of punitive justice must now
bite into this bodiless reality. (' 17)
In other words, the bloodthirsty ceremony31 associated with sovereign justice was replaced by a
secret, anonymous judicial force.

31
These workings are perhaps best captured in one of Titorelli’s paintings. When K.
arrives at the studio for the first time, he is shown a painting which resembles a portrait in Huld’s

41
 “In the Penal Colony” gives way to . In Kafka’s world, the machinery of
corporeal destruction (“the singular apparatus” of “In the Penal Colony”) was replaced by the
secret forces of newly developed disciplinary strategies, represented by the methodology of the
attic courts in . In fact, Kafka’s novel is a perfect example of Foucault’s
“comedy” of anonymous forces par excellence in which the corporeality of inquisition and
torture is (partly) exchanged for the “bodiless reality”; that is, Joseph K. functions on the very
threshold of an active (but fluid) paradigm shift, seemingly caught within a space inhabited by
concurrent, competing disciplinary models: “sovereign justice” — the rule by terror, torture, and
blood — and what Foucault labels as “discipline” — a form of public and ideologically
internalized surveillance. Foucault notes the transition as follows:
Now the scandal and the light are to be distributed differently; it is the conviction
itself that marks the offender with the unequivocally negative sign: the publicity
has shifted to the trial, and to the sentence; the execution itself is like an

office. In both instances, a judge is shown “on the point of rising menacingly from his high
seat” as if ready to launch some sort of attack at one who has been accused ( 145). From the
back of the chair rises a figure which the painter identifies as the goddess Justice which is
traditionally known to effect fair administration of the law. But the figure also has wings like
the goddess of Victory, Nike — one who destroys — which is an exact representation of
sovereign based justice of which Kafka’s academic studies would have made him familiar and
one which functioned within the shadows of the Hapsburg Empire. The painter explains that his
“instructions were to paint it like that; actually it is Justice and the goddess of Victory in one” (
146). The conflation seems to suggest that justice is the violent exercise of right over a
population. As Joseph K. notes, “Not a very good combination, surely. [ . . . . ] Justice must
stand quite still, or else the scales will waver and a just verdict will become impossible” ( 146).
In the novel, justice does not stand still. As the painter works on the painting adding shadow
and an apparent halo of the seated judge, the representation of the goddess “no longer suggested
the goddess of Justice, or even the goddess of Victory, but looked exactly like a goddess of the
Hunt in full cry” ( 147). The combination of the symbols suggests that justice is something
that hunts and slaughters, which is a pertinent allusion to the older discourse associated with the
autonomous Hapsburg Empire.

42
 additional shame that justice is ashamed to impose on the condemned man; so it
keeps its distance from the act, tending always to entrust it to others, under the
seal of secrecy. (' 9;10)
Interestingly, seems to pick up where “In the Penal Colony” ended in that
narrates the unwillingness of a corrupt (but supposedly civilized) empire to relinquish an
obsolete penal strategy. And, at the same time, identifies new disciplinary
methodologies of which our twenty;first century culture is very familiar — a discipline of
observation, surveillance (even self;surveillance), and individualization.

# ! % -
The narrative’s vacillation of discourse formations can be attributed to the general
historical era of European judicial reform which began at the end of the eighteenth century and
ended toward the end of the nineteenth century, which, according to Foucault, marked the final
moments of a legal system that was based on the rule of sovereign authority and its horrific, and
very public, corporeal punishments. Corresponding with the decline of sovereign, monarchical
empires toward the end of the eighteenth century, judicial reformist movements rethought the
nature and responsibilities of crime and punishment, concluding that the brutalities of the
monarchical system, while once very effective, were inhumane and, most of all, no longer
efficient because of rising public intolerance and the subsequent possibility of communal
upheaval. Consequently, by the end of the nineteenth century, almost all Western governments
had revised (or were in the process of revising) their respective penal methodologies. Within
reformist mandates, the body was no longer controlled by violence and coercion.32 Instead, it
was controlled by self;reflective, normalizing practices, relying on the ideological coercion of
the subject’s psychology (the soul).33
32
Similar to the Tuke and Pinel’s liberation of the insane outlined in /
0 3 , these disciplinary mechanisms no longer sought to control problematic subjects
(bodies) by isolation (i.e. leper colonies, hospitals) and destruction (corporeal punishment).
33
Like his other books, / 0 3 and ) 0 ,'
documents the emergence of institutions. In this case, Foucault investigates why the
carceral model was adopted in lieu of other disciplinary models. Foucault writes that the aim of
' was “to write a history not of the prison as an institution, but of the

43
 Correspondingly, Foucault contends that disciplinary strategies at the end of the
eighteenth century began to transform the object and purpose of discipline. Disciplinary power
sought, not to homogenize the masses, but to transform the masses into individuals. He writes,
“Discipline ‘makes’ individuals; it is a specific technique of power that regards individuals both
as objects and instruments of its exercise” (' 170). Power, no longer the exclusive domain of
the sovereign or the divine, slowly became more and more dispersed amongst collective
institutions (science, military, education) which functioned on and through individuals —
identifying, separating, and analyzing the subject. That is, the individual, through a series of
individuating exercises and examinations (i.e. school, military training, religious indoctrinations,
and so forth) is a construction which discipline functions on and through. The individual
becomes an instrument — a conduit — through which power functions. Whereas monarchical
power exercised ceremonial, theatrical, autonomous power, modern power became silent, secret
and dispersed. In place of excessive, ritualized demonstrations of power, the modern strategies
employed silent, non;localized “disciplinary power” which functioned according to the
principles of invisibility, surveillance, and individualization.
However, in addition to the abuse of power, the reformers also recognized an equally
serious problem with the dispersal of judicial power — “an excess that was bound up with an
irregularity” (' 78). European judicial systems operated under a system of multiple,
“irregular” courts and anomalous versions of law and justice. That is, the vast number of
bureaucratic courts had become “denatured.” Monarchies, in need of money, actually sold
judicial offices for financial gain and were subsequently passed on from generation to
generation. Subsequently, there was a plethora of inequitable privileges that were associated
with the courts and the population’s aristocracy. As a result of this corrupt network of power,
the magistrates who “owned” the offices “were not only intractable, but ignorant, self;interested,
and frequently compromised” (' 80).

: to show its origin, or more exactly, to show how this way of doing
things  ancient enough in itself  was capable of being accepted at a certain moment as a
principal component of the penal system” (9/ 75). Or, as McHoul writes, '
“is not simply about the disciplines of criminology and its forbears; it is also about the
subjects produced by techniques of punishment and confinement  criminals” (McHoul 15).

44
 Moreover, Foucault points out that the sale of these court positions created a situation in
which sovereign power itself was compromised, creating “conflicts of power and authority” (80).
Power was dispersed by the creation and multiplication of numerous courts which functioned
simultaneously and laterally. Thus “common” or normal law became an officialdom of
competing, dissimilar modes of law: “Penal justice was irregular first of all by virtue of the
multiplicity of courts responsible for assuring it, without ever forming a single and continuous
pyramid” (' 78). In fact, there was a certain degree of “overlapping” and “discontinuity [ . . .]
between the different legal systems” (' 79) such as those associated with the aristocratic nobles
and those associated with the King (or Kafka’s “palace”). The result was a wide;ranging,
largely confusing and complicated system of courts in which some lower courts acted
indiscriminately and abusively while the higher levels functioned according to the limitless
power of the sovereign.

! ! #
There is not a better example of a corrupt, dispersed bureaucracy than the Hapsburg
government. At once racially and religiously dissimilar and fractured, Prague was, at the same
time, a “centralised state, with a more developed and extensive bureaucracy than any other in
Europe” (Taylor 38), characterized by tyranny, deceit, “meanness and corruption” (Nosek 4).
The financially troubled Hapsburg Empire was an extended and dishonest administration which
offered a range of civil and political privileges to its aristocratic German population and
considering all “others” as inferior. According to Nosek, the Hapsburg dynasty was controlled
by German aristocrats who did “not consider themselves the servants of the public, but look[ed]
upon the public as their servant, and whose meanness and corruption” was “ characteristic of the
Austrian body politic” (5). According to Taylor, it was “an administrative machine almost as
large as the Imperial [Hapsburg] machine in Vienna and larger than the British civil service
which in London conducted the affairs of the United Kingdom and of the British Empire”
(Taylor 158).
The extended bureaucracy represented in and the corruptness of all those
associated with the courts is an obvious and accurate representation. (After all, the warders even
wanted to steal Joseph K.’s undergarments). Later in the courtroom, K. makes the connection
evident, acknowledging the secrecy and corruption on which the discourse is based. Becoming

45
agitated about the accusations, he yells, “what has happened to me is only a single instance and
as such of no great importance, especially as I do not take it very seriously, but it is
representative of a misguided policy which is being directed against many other people as well.
It is for these that I take my stand here, not for myself” ( 42). This is also Kafka’s stand and a
statement of his will to represent his judicial reality. K. concludes his outburst by slamming his
fist on the table, stating the long monologue that follows which is worth quoting at length:
There can be no doubt that behind all the actions of this court of justice, that is to
say in my case, behind my arrest and today’s interrogation, there is a great
organization at work. An organization which not only employs corrupt warders,
oafish Inspectors and Examining Magistrates of whom the best that can be said is
that they recognize their own limitations, but also has at its disposal a judicial
hierarchy of high, indeed of the highest rank, with an indispensable and numerous
retinue of servants, clerks, police, and other assistants, perhaps even hangmen, I
do not shrink at that word. And the significance of this great organization,
gentleman? It consists in this, that innocent persons are accused of guilt, and
senseless proceedings are put in motion against them, mostly without effect, it is
true in my case. But considering the senselessness of the whole, how is it
possible for the higher ranks to prevent gross corruption in their agents? It is
impossible. Even the highest Judge in this organization cannot resist it. So the
warders try to steal the clothes off the bodies of the people that they arrest, the
Inspectors break into strange homes, and innocent men, instead being fairly
examined, are humiliated in presence of public assemblies” (45;46).
satirically calls attention to the multiplicity of the empire’s courts which, in the novel,
function far away from the palace in the tenement hallways and attics where there is a never
ending series of judges in the cramped, often dark and stuffy, spaces. Kafka makes it very clear
that the accused and his lawyer lacked any real power, and that the “most important thing was
counsel’s personal connection with officials of the Court” ( 117). So, not only were the courts
corrupt, but the corruptness spilled into the nature of the defense in which the “pettifogging”
lawyers were dependent on bribing, listening to gossip, and actually stealing documents ( 117).

46
 ' &

' ( '

In his influential work “A History of Continental Criminal Procedure,” A. Esmein claims

that there have been three “variant types” of criminal procedure in the history of civilization
(three disciplinary discourse formations), and he contends that these exclusive disciplinary
models have generally appeared in a specific order, proceeding chronologically. State judiciary
systems generally begin with what the author labels as the “accusatory model,” then proceed
through the “inquisitorial,” and eventually revert to a hybrid of the first (the “mixed model”),
which restores “the essential safeguards” of the first (3). In the accusatory model, the criminal
is charged and publicly adjudicated by the community as a whole. In this case, a publicly
selected judge solely functions as a representative mediator between two parties, one accusing
the other of some type of injustice (civil or criminal). For the most part, the accusation is
usually a private matter and, accordingly, there must always be an identifiable accuser (not an
anonymous or collective force). The rise of sovereign empires and their need for social control,
however, generally demanded the replacement of the accusatory model with the inquisitorial
model for the latter is more agreeable “with a centralizing and despotic power” and better suited
for the “needs of social repression” (Esmein 10, 8). In this model, the judge (now a
representative and functionary of the state) no longer simply settles disputes, but autonomously
determines, articulates, and enforces the Law. In other words, the judge — as an agent of the
sovereign — not only establishes guilt or innocence, but also composes the rules that punish. In
the inquisitorial model, what Foucault refers to as the pre;reformed model, the state performs
“double duty” in that it functions as that institution that accuses, investigates, and punishes
(Esmein 8). Coinciding with the inevitable decline of autonomous rule, the “mixed” system
represents a type of retreat to the first model, re;implementing the principle by which the

47
community determines the laws by which the society is ruled and (re)initiating a system by
which the accused is tried by a group of his or her peers
Franz Kafka was born into an era contained by the absolutist rule + of the
Hapsburg empire which, according to Esmein, actually “reproduced and developed the rules of
the pure inquisitorial system” (Esmein 581). Consequently, the inquisitorial model occupied a
majority of judicial space from which Kafka wrote, manifesting in very literal characterizations
of inquisitorial courts (not a fictional, prophetic regression to an ancient or medieval formation,
nor a premonition of a system yet to appear). Specifically, the “attic courts” adopt the following
characteristics of the pre;reformed, Austrian legal system:

Legal Arithmetic Secret Inquiry

Testimonial Intercession (Women) Secret Laws

5 :( 4/ # D '

" 8" !#* " !/

Within this inquisitorial model, the realm of the law is removed from public domain and
transferred to the realm of secret laws and covert investigative practices. The state determines /
writes the law according to sovereign doctrine (sovereign utterances) and publishes its
corresponding truths — its rules, its discourse — in ostensibly sacred texts (also removed from
the public sphere) by which the populace is controlled and to which only selected governmental
specialists would have access. Or, in Foucault’s words, “knowledge was the absolute privilege
of the prosecution” (' 35). Likewise, Esmein explains, “At first, the customs are collected;
then fixed by being written down; then text;books of legal practice are compiled and serve as
guides to the professional men” (Esmein 8;9). But only these trained men would have access.
The text of the “law” is privileged in that, not only are the laws glaringly biased, but the average
citizen would not simply “know” or have access to the law. Rather, the intricacies of the law (if
one were granted access) were texts that would have to be studied, interpreted, and memorized
— only revealed to the accused at the conclusion of the judgment (at which time the judgment
would be translated by the flesh). For example, in “In the Penal Colony,” legal truths were

48
gleaned from sacred texts and the subsequent punishments were felt on the body of the accused
and read publicly from the surface of the victim’s body (literally and symbolically).
Franz Kafka was a Doctor of Jurisprudence who, unlike the masses, would have actually
had access to and knowledge of these seemingly consecrated documents and insight into the
workings of the pre;reformed Austrian law. In a sense, he was a lowly doorkeeper.
Interestingly, Kafka’s fiction mocks the very system which makes his utterances possible. His
unfavorable opinion of the system’s secrecy and antiquated methodology is articulated in one of
his lesser known parables “The Problem of Our Laws,” which coincides with Esmein’s claims.
The parable begins, “Our laws are not generally known; they are kept secret by a small group of
nobles who rule us. We are convinced that these ancient laws are scrupulously administered;
nevertheless, it is an extremely painful thing to be ruled by laws that one does not know.”
( 155). There is almost a sense of hostility in the language when Kafka claims that the
laws are “a mystery codified” (155) by and for the success of the aristocratic minority: “There is
a small party who are actually of this opinion and who try to show that, if any law exists, it can
only be this: The Law is whatever the nobles do” (157). In other words, the law — very
literally—is what is done or what is uttered by those in power, and likewise, those actions are
legitimized through judicial decisions. The same themes mentioned by Esmein and Foucault —
secrecy, manipulation, and ignorance — control in which the law is purposely withheld
by the judicial bureaucracy that, in part, still functioned according to this model.
While Kafka is ostensibly aware of the real system’s sinister workings, a peculiar
ignorance dulls the consciousness of the characters in who all share a common
acquiescence. Kafka represents the masses as those who follow the law with no understanding
of its reasoning, blindly accepting the “law” as that which is necessarily true because of its
source and historical sacralization (possibly the result of the deceptive presentation of a bankrupt
constitution). For example, minutes after Joseph K.’s arrest (and very early in the novel), Frau
Grubach, the landlady who was present at the time of arrest, explains what she heard while
listening behind K.’s apartment door:
You are under arrest, certainly, but not as a thief is under arrest. If one’s arrested
as a thief that’s a bad business, but as for this arrest —. It gives me the feeling of
something very learned, forgive me if what I say is stupid, it gives me the feeling

49
 of something learned which I don’t understand, but which there is no need to
understand. ( 19)
Grubach confesses her ignorance of the law and recognizes the anonymous authority for which
knowledge is reserved while also admitting a certain apathy. She is not alone. Very few (if
any) of the characters in , including Joseph K, actually know the law. Even after the
first interrogation, he refers to the court as an “unknown system of jurisprudence” that he really
does not know much about ( : 61). As the court clerk explains to the protagonist later in the
novel, the court’s “procedure is not very well known among the populace,” and she is chastised
by the representative of the Information Bureau for telling the court’s “intimate secrets” ( 69;
70).
Even the warders who arrest Joseph K. do not understand the law. Like the others, the
warders admit that they cannot navigate a legal document and simply defer to “high authorities”
— the keepers of the Law, . The warders blindly believe that the officials are
informed and would never issue an arrest if it were not warranted. Rather, the Law decrees that
the officials are actually “drawn toward the guilty” ( 6). In other words, the Law, which no
one understands, actually seeks out and proclaims guilt.
Conversely, one cannot be entirely innocent of a law of which one is unaware. That is,
enforced ignorance does not protect. As the washerwoman later explains “it is an essential part
of the justice dispensed here [in the attic courts] that you should be condemned not only in
innocence but also in ignorance” (50). Accordingly, when Joseph K. embarrassingly confesses
that he does not know the Law, Franz remarks, “See, Willem, he admits that he doesn’t know the
Law and yet he claims he’s innocent”(6;7). Since one cannot know the Law which accuses, the
warders actually encourage K. to realize his own position within the equivocal Law and
cooperate.
Like Grubach, the warders, and others, K.’s uncle and former guardian is also ignorant of
the workings of the Law and mistakenly believes that a visiting a lawyer would be the correct
thing to do, again nodding to the institutional fantasy. Kafka makes it clear that Albert (or Karl)
from the country (“The Specter from the Countryside”) is unaware of the workings of the
government bureaucracy ( : 88). He is the perfect example of one who functions according to
the illusion of the constitution and believes that the rights of the populace are somehow
protected. Karl explains, “you must consider that I have lived in the country for twenty years

50
almost without a break, and my flair for such matters can’t be so good as it was” (97). Joseph
K., on the other hand, is aware of the different discourses and the different institutions. He
responds to Karl’s suggestion to get a lawyer by saying that he did not know “that in a case like
this one could employ a lawyer,” seemingly recognizing the overlapping discourse formations
(98).
Those who know — the specialists in — are the lawyers and judges. For
example, Huld refers to documents from the courts which were “officially secret” ( : 113).
And, even when the papers are rendered accessible, the average citizen does not find them to be
legible. Huld actually gives the tradesman Block pages regarding his case. As a tribute to the
lawyer and a display of his commitment, the tradesman pours over the texts all day. He
carefully spreads the documents out to show “how faithful he does what he is told,” but, despite
his diligence, he cannot understand the meaning of the sacred “scriptures” ( 194).
Kafka exaggerates the workings of the attic courts, adding that even those associated with
the courts do not necessarily understand the workings outside of their specialties or job duties.
Like the string of doorkeepers in the parable, the attic courts consist of an “infinite” bureaucracy
of courts and judges, the lower of which have no idea what the other courts or upper judges are
doing or for what they are responsible. Consequently, the lower officials cannot follow a case
and never have any idea about the particularities of any given case. Kafka explains, “Their
involvement is limited to that part of the trial circumscribed for them by the Law, and they
generally know less about what follows, and thus about the results of their own efforts, than the
defense.” In fact, the narrator humorously claims that the lower court officials actually learn
details about the trial from the accused and the defense ( : 118).
This discourse of secrecy foreshadows the “Parable of the Law” in which a man from the
country requests admittance to the Law, but is denied access by a doorkeeper.34 Much has been
written about the parable, and many have offered interpretations. Kafka here is referring to the
literal law, not the “laws of life” (Reimann 58) or any other metaphysical or religious mandates.
The parable is literal and most commentators miss what I believe to be Kafka’s main point. As

34
Likewise, the doorkeeper, like the lawyer and the court officials, drains the assets of
the man from the country until he has nothing left to offer, alluding to the corruptness of the
bureaucracy.

51
the priest explains, “You mustn’t pay too much attention to opinions. The text is immutable,
and the opinions are often only an expression of despair over it” ( : 220). Regardless of the
various interpretations within the text, it is clear that the Law is off limits. The man from the
country believes that the “Law should be accessible to anyone at any time,” but the problem (as
Kafka repeatedly illustrates in the narrative) is that no one actually knows the Law. The
doorkeeper in the parable is simpleminded: “He doesn’t know the interior of the Law, but only
the path he constantly patrols back and forth before it” ( : 220). Likewise, the court officials
and the lawyers within the narrative are only aware of a small piece of the complexity of the Law
and are never capable of understanding the Law as a whole. At this particular moment, the
multiple discourses overlap, but there is no single point of power; the endless, corrupt
bureaucracy of the Law is seemingly headless.

! !" #) ! * . & %!# -!" #

In part, the novel is about Joseph K.’s quest to know the Law, but like the parable, the
Law which accuses is an antiquated text — a closed book which is off;limits. Its age and
secrecy function to preserve the remnants of the obsolete bureaucratic system of power by
imparting an enigmatic respect, reverence, and even sacralization — evocative of past
knowledge, glory, and superiority. The ancient Law is something like an old custom, still
performed, but for which the origin of its unique power has long been forgotten, diminished, or
even supplanted. In the novel, the Law is represented by the examining magistrate’s
deteriorating and aged notebooks (a written discourse), which apparently contain the written
procedure and policy of the courts. Like the officer’s “drawings” in “In the Penal Colony,” the
examining magistrate’s notebook was “like an ancient school exercise book, grown dog;eared
from much thumbing” ( 40). Also like the officer’s text, the content is deteriorating, only held
together by symbolic threads. So, while the age contributes to its authority, it also subverts its
power by signifying its antiquation and obsolescence.
So, on the one hand, the Law is represented as the sacred, seemingly respected by all,
including those who did not understand it. But, on the other, it is also represented as the
profane, or, even, the obscene.35 The sacralized text is coded as corrupted by the filth which
coats the worn, dusty books and the pornographic contents of its interior, which also identifies
35
For more commentary on obscenity and impurity, see % / (164;65, 185).

52
the association of the patriarchal courts and their obsession with women. When Joseph K.
boldly grabs the revered notebook from the Examining Magistrate, he “held it up with the tips of
his fingers, as if it might soil his hands, by one of the middle pages so that the closely written,
blotted, yellow;edged leaves hung down on either side” (41). (Conversely, in “In the Penal
Colony,” the officer would not allow the explorer to touch the documents for fear that the pages
might get soiled). This contradiction is reconciled by the fact that the judicial discourse of the
novel is caught in a moment of flux — a moment of overlap. In other words, there is a
transition in the discourse formation, a vacillation from the once sacred to the now, seemingly
obscene, which illustrates the historical transition.

" #7 " 1!" #

Not only were the laws kept secret, but the entire investigative procedure within the
inquisitorial model was based on the process of independent, clandestine inquiry: “the
preliminary investigation under the Austrian code remained secret as it had been since the
Medieval period” (Robinson 133;34). If one was accused or even somehow suspected of a
transgression against the empire, the courts were invested with absolute authority to launch an
investigation, and oftentimes the accused was not even informed that judicial proceedings had
been initiated: “the accused would not necessarily be informed in the early stages of the
investigation, nor would the proceedings be made public” (Robinson 130). Even if one was
aware of an investigation (i.e. Joseph K.) there was no certain legal obligation to inform the
suspect about the details of the accusation unless it would somehow aid the investigation:
Foucault’s history is helpful here in that he explains that the pre;modern process adopted by
most European countries was one in which
the criminal procedure, right up to the sentence, remained secret: that is to say,
opaque, not only to the public but also to the accused himself. It took place
without him, or at least without having any knowledge either of the charges or of
the evidence. (' 35)
This was Kafka’s reality. Much of pre;reformed European justice prohibited the accused from
accessing documents associated with the case, knowing the identity of the accusers, or even
knowing what evidence was forwarded by the prosecution (' 35). The attic courts in
functioned according to the same rules of purposeful secrecy. K. does not have access to

53
any documents or even the simplest inclination as to the nature of the transgression; he was
forced to accept that “the court records, and above all the writ of indictment, are not available to
the accused and his defense lawyers” ( : 113). So, while it may seem unusual that K. was
arrested without being told of the nature of his transgression, the real oddity here is that he was
even notified at all. Joseph K.’s problem is that he imagines that his constitutional rights were
real, but quickly learns that they existed in name only, as if the authority of the secret courts
superseded any imagined law or corresponding rights.
The secrecy of the investigation and the secrecy of the law texts should not lead to the
conclusion that the courts themselves were not sanctioned or controlled by the government.
Lida Kirchberger, for example, makes the assertion that the court was a “group of persons
operating without regard to rules governing terms of work in an ordered society and might well
be described as fly;by;nights, comparable to insufficiently skilled craftsman plying their cut;rate
trade in secret or under substantial conditions” (79). Such an assertion is dangerous and
mistakes the entire thesis of the novel by missing the connection to the actual courts of the
Hapsburg Empire.36

!/
Constituent of the secret investigation is the inequitable distribution of power between the
accused and the prosecution. In the pre;reformed legal system, the accused’s access to counsel
was severely limited. While those arrested would be allowed to secure counsel, the
effectiveness of representation was largely inadequate, ineffective, and mostly symbolic. The
lawyer would not have access to any of the case documents, evidence, or other inquiry findings.
According to Esmein, the code of 1873 authorized the accused to obtain counsel in order to
insure the “preservation of his rights,” but the counsel could not “take part in the interrogation of
the accused, nor in the hearing of witnesses” (Esmein 601). Esmein explains:
36
Some may agree with Kirchberger, citing the evidence that the courts are invisible, set
apart in tenements and unavailable to the populace. But this is a symptom of the bureaucracy
and its desire to make itself unavailable and unaccountable. Furthermore, it may well have been
the case that the law courts were actually placed in such locations. For example, the setting is
similar in the somewhat parallel narrative 0 , where the law courts are
located in similar dwellings.

54
 The German Code authorizes the accused to have the assistance of a counsel from
the filing of the information [ . . . ]; it even allows the judge to appoint one of his
own accord when the accused has neglected to choose one himself [ . . . ]. At the
same time, this counsel has only a very barren role. He can take part neither in
the interrogation of the accused [ . . . ] nor in the hearing of witnesses [ . . . ]. His
rights consist in the power to assist, either alone or with the accused, in some
subsequent steps of the proceedings. The complete record cannot be shown to
him unless the judge deems that its production is without inconvenience in regard
to the purpose intended to be reached. (601)
Likewise, in Foucault’s history, the author writes,
it was impossible for the accused to have access to the documents of the case,
impossible to know the identity of his accusers, impossible to know the nature of
the evidence before objecting to witnesses, impossible to make use of, until the
last moments of the trial, of the documents in proof, impossible to have a lawyer,
either to ensure the proper conduct of the case, or to take part, on the main issue,
in the defense. (' 35)
The Bohemian procedure in place during the time at which Kafka wrote (a moment at which the
constitution had been periodically suspended) allowed the right to counsel, but as Robinson
points out, the “function of counsel during the preliminary stage was [ . . . ] very limited” (132).
She explains, “The lawyer could not take part in the interrogation of the accused or in the hearing
of witnesses, but could only call matters to the judge’s attention, examine questionable
documents, if any, and advise the client on how to respond as matters progressed” (132).
Likewise, in the novel, Joseph K.’s proceedings were not public, the documents were
inaccessible, and the truth of the accusation was to be determined by the court without ever
telling Joseph K. (or the reader) the nature of the allegations. Joseph K., nor the lawyer, were
even made aware of the charges, so a legal response would be most difficult. In fact, Kafka
humorously explains that a defense would only be possible by guessing the nature of the
accusation by inferring from the questions during interrogation. That is, since the lawyer could
not be present at the interrogation, it was up to the lawyer to question the defendant about the
preceding interrogation and infer the motivations of the prosecution and, thus, the nature of the
defense.

55
 Moreover, Kafka makes it clear that the lawyers in the novel are not respected nor even
recognized by the courts; in fact, a legal defense in the novel “was not actually countenanced by
the Law, but only tolerated” (115). Lawyers were considered “shysters,” ( : 114), and the
courts held a certain disdain for lawyers and considered them a nuisance without any sort of
authority. The attic courts even seemed to take pleasure in humiliating the lawyers,
admonishing those associated with the courts to small, dirty, and cramped room with poor
lighting, and a hole in the floor “so that if you stumbled through the hole your leg hung down
into the lower attic, into the very corridor where the clients had to wait” (116). Thus, it becomes
obvious that lawyers are a discouraged, frustrated, and powerless lot in the novel, and K.’s
attorney is no different.
The unlimited power of the prosecution and the impotence of case lawyers explain K.’s
hesitance to call his lawyer at the beginning of the novel. When K. tells the warders, “Hasterer,
the lawyer, is a personal friend of mine” (T12), and asks to call him, the inspector’s response is
not surprising: “Certainly, [ . . . ] but I don’t see what sense there would be in that, unless you
have some private business of your own to consult him about” (12). Likewise, after scheduling
his first inquiry hearing, the Assistant Manager invites K. to a large party on his yacht and
informs K. that “Herr Hasterer, the lawyer” (32) would be in attendance. Again, Kafka
purposely reminds the reader that K. had access to an attorney, but reasonably chose to forego
the possibility and attend the initial meeting by himself. Here, Joseph K. seemingly realizes that
his arrest was not controlled by the jurisdiction of the constitutional law of the Palace and that a
lawyer at that early juncture would be quite meaningless, an exercise in futility.37 K. eventually
does retain an attorney after the meeting with Uncle Albert, but he is still correct in assuming
that he will be of little assistance facing the inquisitorial courts. Kafka writes, “K. had no idea
what the lawyer was doing about the case; at any rate it did not amount to much, it was more
than a month since Huld had sent for him, and at none of the previous consultations had K.
formed the impression that the man could do much for him” (114).

37
Robinson makes a similar argument in her article. See “The Law of the State in
Kafka’s ”

56
 & / %" & " #) 1 %" 8!- # #1 !1 " !"
Within pre;reformed legal systems, the power (and knowledge) was exclusively allocated
to the prosecution which “possessed almost unlimited means of pursuing its investigations, while
the accused opposed it virtually unarmed” (' 79). In the inquisitorial system, the state’s
representative was the examining magistrate, who was authorized to proceed on his own with
few limitations. Examining magistrates were charged with the authority to conduct secret
domiciliary searches, interview witnesses, (Robinson) or anything else that might further the
investigation, including psychological manipulation (Gross). The powers of the Austrian courts
were invested with the authority of the monarch and given “full power to act”; they were
“answerable to no one,” including the Bohemian constitution (Capek 78).
Early in the novel, Kafka makes it clear that the organizational structure of the attic
courts is headed by a pre;reformist examining magistrate who is coded as representative of the
inquisitorial method. Joseph K. meets the examining magistrate at the first hearing where he
was escorted by a small boy who led K. through what appeared to be two factions of the group
(two discourses) who had their backs turned to the other group, seemingly carrying on distinct
conversations with members of their own group. The boy escorted K. to the end of the room
where there was a platform on which set a small table and chair occupied by “a fat little
wheezing man,” — the examining magistrate — who informed K. that he was over an hour late
( 38).
Although the examining magistrate in is a somewhat minor character, it is
necessary to understand the legal and literary tradition from which the character is modeled.
Richard Weisberg,38 author of “Comparative Law in Comparative Literature: The Figure of the
‘Examining Magistrate’ in Dostoevski and Camus,” claims that “the most famous literary use of
the Germanic examining magistrate” is, in fact, the (239). The use of this character
again offers a clue to the reader that the discourse functioning in is not that usually

38
Weisberg notes, “With roots deep in the Roman and ecclesiastical past, the modern
form of the institution derives from the French 0 @# 0 of 1808. The E
@ of that code finds its counterpart in Articles 71;190 of the current French code, and
in parallel sections of the German, Soviet, and most other continental European codes of criminal
procedure” (239).

57
found in modern bureaucracy. Rather, it is clear that the discourse is at least partially controlled
by a dated and obsolete system. According to Weisberg, the “figure of the ‘examining
magistrate’ is grounded in European tradition and virtually unique to the continental criminal
procedure” (239). The inquisitor, according to Weisberg, is not a policeman, detective, nor
prosecutor; rather, the examining magistrate is a court appointed official summoned
to establish the existence of a crime or crimes, to interview suspects, witnesses
and interested parties in great secrecy, and to prepare a dossier on the full matter
which he ultimately transfers to the procurator [prosecutor]. This act of ‘giving
over’ of the dossier terminates his role, after which any or all of his actions can be
challenged by an interested party, usually the defendant, but occasionally the
prosecutor as well. (240)
In essence, the magistrate’s role is to determine (and author) the truth. The magistrate’s
function is to find “the entire truth of a criminal matter” and to accomplish the task of necessarily
reaching a conviction; the position was invested with broad, potent authority (Weisberg 240).
Using whatever tactics were necessary to reach a conclusion, the inquisitor was “endowed with
an arsenal of powers” (240), enabling the inquisitor to conduct a covert investigation. For
example, he could interview character witnesses, or enter premises for the purposes of search and
seizure without the consent or even knowledge of the accused. In the case of , it could
be assumed that the inquisitor could have been in Joseph K.’s room before the arrest, and,
furthermore, he would not have required permission from the landlord, Joseph K., or even
Fräulein Bürstner for entering and disturbing their residences.
The conclusions of the examining magistrate are collected and evidenced by a dossier,
which the trial repeats verbatim (its outcome predetermined). Weisberg adds, “In a sense, the
inquisitor is an “author;figure” (241). He concludes that “both author and inquisitor
theoretically seek to uncover and write down reality in its fullness” (241). In Foucault’s words,
the “magistrate constituted, in solitary omnipotence, a truth by which he invested the accused;
and the judges received this truth ready made, in the form of documents and written statements;
for them, these factors alone were proof” (' 35).
The “dossier” in Kafka’s manifests as the plethora of writing by the Examining
Magistrate: “he’s always writing” ( 54). For example, when Joseph K. returns to the
courtroom the second time, the washerwoman informs K. that after the first meeting, the

58
Examining Magistrate wrote reports of the event well into the evening and even morning. She
tells K. that he “is kept really busy writing reports, especially about you, for your interrogation
was certainly one of the main items in the two days’ session” (55).
Interestingly, if one compares the officer, who functioned as the sovereign in “In the
Penal Colony,” with the “inquisitor” in , one realizes that, in both cases, the truth stems
from a written articulation of the sovereign or his representatives. However, in the former, the
truth was written on and realized through the body of the accused, but, in the case of the latter,
the truth was articulated or “written” in a dossier. This difference marks the precise moment of
the discursive shift.

3 4 59 + " ! " ,:
Part of the inquisitorial process and the classical discourse was the reliance on the
community members to report criminal transgressions to the sovereign authority. As Foucault
notes, allegations against someone could be made anonymously, and the examining magistrate
could rightfully accept the allegations as the basis of an investigation (' 35). Of particular
concern were those suspected as subversive activities and public detractors, to whom the courts
were encouraged to “proceed ‘fearlessly’” against (Capek 78). When was written,
Prague was considered a center of opposition to the Hapsburg Empire and its corresponding wars
because of its large minority population that largely resisted the empire’s policies. The fact that
K. was arrested in a way similar to those who opposed the government (anonymously accused
and arrested without conclusive evidence) undoubtedly signals the reversion to the pre;modern,
inquisitorial discourse.
Because of the locale, the disbursement of political strife, and the author’s own political
affiliations, the careful reader should wonder if Kafka intentionally meant for the reader to
consider Joseph K. as a subversive, as a guilty man who had acted against the Empire. The
possibility of his guilt is hinted at by Joseph K.’s profession and geographical heritage. The
reference to the fact that Joseph K. was raised in the country by his uncle is significant in that it
codes the protagonist as an outsider of Jewish or Czech decent. Historically, the more urban
areas of Bohemia were occupied and controlled by the minority German population. However,
late nineteenth century Prague realized a large influx of Jews from the countryside when laws
previously restricting the rights of Jews were relaxed by Franz Joseph. Frederick Karl notes,

59
“With freedom to move around within the Hapsburg Empire, with restrictions on marriage,
family, and jobs stripped away, Jews began to relocate into larger cities as soon as they were able
to gather their goods and leave” (16). Karl also points out that many Jewish families sought
refuge from the virulent anti;Semitism prevalent in smaller communities by relocating to the
urban Jewish communities of Prague. But Jews were not the only group to relocate to the city at
the turn of the century. According to Karl, Czech workers who were “willing to do lower;level
jobs for less money than the Germans” also moved to the city (16). The migration of these
minority people swelled the population of Prague and began an energetic attack on the political
dynamics of the region through an increased sense of nationalism.
The Great War was fought against the will of the Czech people, and the Czech Slovak
population did what they could to actually impede the success of the war. One strategy to
obstruct the success of the empire involved the refusal to support the war financially. At the
beginning of the war, the health of the Hapsburg Empire was in question; it had actually been on
the verge of bankruptcy many times. In order to raise funds, the regime issued requests for war
loans (bonds) as early as 1914. The Czech population and Czech owned banks, however,
“refused to subscribe to the war loans” (Nosek 69). Needless to say, their resistance was not
without political repercussions. Many bankers were systematically arrested and interned. For
example, Nosek recounts the fate of a particular banker as follows: “Dr. Preiss, the manager of
the Czech bank, Živnostenská Banka, [ . . . ] and four of his colleagues were imprisoned, because
the Czechs would not subscribe to Austrian war loans and Dr. Preiss had done nothing to induce
them to do so” (54). Correspondingly, I would argue that Kafka purposely casts Joseph K. as a
high;ranking banking official, the “chief financial officer” ( : 90), in order to imply a similar
transgression against the empire. The financial situation of the empire coincides with the
“poverty stricken” courts in which have only “limited funds” ( : 65). The courts
work out of dilapidated offices situated in poor suburbs and their clerks are always poorly
dressed. Considering Kafka’s political alliances, it would be easy to situate Joseph K. at the
center of this turmoil, and it would also offer an explanation of the nature of the transgression
and, even, his guilt. After all, “[t]hese cases are not like ordinary criminal cases” ( 183;84).
Such an assertion is affirmed by the characterization of the crime. In the first chapter, the
landlord, Frau Grubach, reminds K., “You are under arrest, certainly, but not as a thief is under

60
arrest” (19). In other words, the transgression was not one as common as burglary; rather, the
crime was something “very learned,” possibly an act of political or economic subversion.
The assumption of guilt is contrary to the majority of criticism which implies that the
accusation is “empty” and “unfounded” (Arendt 4). However, Breon Mitchell’s newer
translation of seems to support the assertion that K. may indeed be guilty. Mitchell
claims that Muir’s older translation “declares K.’s innocence too simply” (Mitchell xix),
explaining that the previous version incorrectly implies that there is no question about K.’s guilt.
However, referring to the complexities and nuances of the original German text, Mitchell adds
the word “truly” to the imperative first sentence of the novel. Mitchell’s translation reads,
“Someone must have slandered Josef K., for one morning, without having done anything
wrong, he was arrested” ( : 1, italics mine). The additional word “truly” here implies that in
the eyes of the narrator, the protagonist did not do anything wrong, but that he committed an act
of sorts that might be construed as wrong by someone of a different (albeit, incorrect) belief
system, such as the Empire and its consideration of war loans.

" - "
Perhaps the most interesting clue that tells the reader that the courts are not a simple
representation of modern judicial bureaucracy is the logic by which guilt is determined. Despite
its drama, mystery, and confusion, the older discourse (the classical, inquisitorial model) was
actually governed by a set of precise rules regarding evidence and interrogation. The
inquisitorial system was considered “more scientific and more complex than the accusatory
system,” but power was still centralized. Within this antiquated German model, types of
evidence were categorized and privileged according to their content and assigned a numeric
judicial value. Each type of evidence — circumstantial, eyewitness accounts, prosecution
arguments, and so forth — carried more or less significance in an investigation, and the goal was
to combine these proofs into a “full proof” which would successfully and unequivocally
incriminate the accused.39 Sentencing was based on a peculiar, judicial “arithmetic” by which
guilt (and the extent of guilt) was mathematically determined.40
39
The arithmetic was complicated by rules governing the quality of the evidence and
rules limiting the admissibility of eyewitness accounts (Esmein, Foucault). According to
Burnham, “The only other practical form of complete proof was the consistent testimony of two

61
 In other words, guilt was cumulative (but never altogether absent).41 For example,
incomplete or partial proofs could be combined to constitute a range of conclusions from semi;
complete proof to a full;proof, depending upon the quality of evidence. Because of the all of the
rules, however, rendering a “full proof” was somewhat difficult to achieve unless the criminal
was disrupted in the very act and apprehended at the time or if the suspect voluntarily confessed.
Accordingly, the confession was privileged. It forced the “criminal to accept responsibility for
his own crime” (' 38) and articulate the truth of the crime. Sovereign authority sought to
write (document) a version of penal truth, and a confession would be a confirmation of that truth
and an affirmation of the authority which accuses: “The confession, an act of the criminal,
responsible and speaking subject, was the complement to the written, secret preliminary
investigation” (' 38).
Accordingly, after the suspect was arrested, he/she would be interrogated for the purpose
of obtaining a confession which was, for these reasons, the most effective and quickest route to
“full proof.” The confession “transcended all other evidence” (' 38) and reduced the amount
of evidence that was needed, condensing the work of the investigation. If a confession was not
forthcoming, then the investigation began, and “every possible [physical or psychological]
coercion would be used to obtain it” (' 39). The goal of the preliminary investigation was to

eyewitnesses” (1234). However, witnesses were judged according to their character and many
were actually disqualified. For example, accusations by witnesses who were known criminals,
those who were considered mad, and so forth were not considered valuable or even presentable
to the court.
40
As Foucault notes, “The [inquisitorial] investigation was the sovereign power
arrogating to itself the right to establish the truth by a number of regulated techniques” (DP
225).
41
It is helpful to consider Dostoevsky’s novel here to offer an example of the new
concept of judicial arithmetic. (More about the connection is explained in Chapter Six.)
Porfiry alludes to the value of a confession in a discussion with Raskolnikov who states, “Listen,
Porfiry Petrovich; after all, you said yourself it was only psychology, but now you have gone
over to mathematics” (387). And later, he adds, “Out of a hundred rabbits you’ll never make a
horse, and a hundred suspicions will never make a proof, as an English proverb says” (381).

62
obtain evidence, but it was also designed to gather enough evidence in order to eventually
confront the suspect and ultimately solicit a confession.42
Foucault also points out that the classical discourse did not function according to the
same dualistic system of guilt with which western readers are familiar. Consequently, when
approaching a novel like , the readers’ assumptions about guilt easily lead to a
misinterpretation of how judicial reason functions. It seems to the modern reader that an
accused is either guilty or not guilty, but the older discourse rarely rendered one who had been
accused as being innocent. Rather, the courts always assumed one to be guilty, and
consequently, an innocent would simply be less guilty. In this mathematical system of penal
justice, the degree of guilt is systematically added to reach degrees of guilt: “Thus a semi;proof
did not leave the suspect innocent until such time as it was completed; it made him semi;guilty;
slight evidence of a serious crime marked someone as slightly criminal” (' 42). There is
always a certain amount guilt when one is associated with the court. Foucault writes that the
suspect “always deserved a certain punishment; one could not be the object of suspicion and be
completely innocent” (42). Likewise, K. is not completely innocent.

42
Just as surveillance techniques were appropriated by other institutions, the
confessional was appropriated by secular institutions as a mechanism of power. As Foucault
explains:
The confession has spread its effects far and wide. It plays a part in justice,
medicine, education, family relationships, and love relations, in the most ordinary
affairs of everyday life, and in the most solemn rites; one confesses one’s crimes,
one’s sins, one’s thoughts and desires, one’s illnesses and troubles; one goes
about telling, with the greatest precision, whatever is most difficult to tell. One
confesses in public and private, to one’s parents, one’s educators, one’s doctors,
to those one loves; one admits to oneself, in pleasure and in pain, things it would
be impossible to tell to anyone else, the things people write books about. [ . . . ]
Western man has become a confessing animal. (!* 59)
This is very appropriate to Kafka’s work on numerous levels. Note the difference in the
importance of the confession in and its absence in “In the Penal Colony.”

63
& * " - #!" # % "
K. cannot be under suspicion and be innocent. This system of penal arithmetic manifests
throughout , consistently coding the discourse of the attics as that which is recognized
as the pre;modern, inquisitorial model. Most obvious is the systematic predetermination of guilt
similar to that outlined by Foucault. The antiquated courts always assumed that those who were
brought before the court were guilty; if one was suspected, he or she could not be completely
innocent. In other words, K.’s guilt is at least partially rooted in the methodology of the courts
(not religion or metaphysics). Correspondingly, the usher tells Joseph K., “Yet as a rule all our
cases are foregone conclusions” ( 62), and later, Titorelli, the court painter, explains that once
charges have been made, the court is already necessarily “convinced of the guilt of the accused”
and “it is difficult to sway them from this conclusion” ( : 149). Similarly, Uncle Albert
recognizes that the power of the courts might ring true; he tells K., “Looking at you almost
makes me believe the old saying: ‘Trials like that are lost from the start’” ( : 94). Significantly,
characterizes the literal reality of the forgone conclusion; suspicion actually generates
(or performs) a guilty verdict. That is, guilt is here layered on top of that which is known as the
subject, and the corresponding proofs are generated backwards. Continuing the math analogy,
the conclusion would be similar to an algebraic equation in which one knows the answer and
later solves for the evidence.

"
Most interestingly, the judicial mathematical system coincides with the judicial
arithmetic presented by Titorelli, the court painter, which purposefully signals an attack on the
absurdity of the inquisitorial, pre;modern discourse. Generally, the complexities of the Law in
were kept secret. However, Titorelli represents an unlikely specialist who humorously
admits that he is “in the confidence of the Court” and has privileged access to its membership.
Like the officer in “In the Penal Colony,” the painter here has access to secret writings of the
Law — a discourse of complicated and various “secret rules” ( 152) and various other
documents, forms, and certificates relating to court operations which have been passed down
from the painter’s father (much like the transfer of the officer’s drawings in “In the Penal
Colony”). K. learns of Titorelli from the Manufacturer who suggests that the painter, even
though a bad gossiper, could be of some use to the accused because of his tight connection to the

64
court and access to its members. The manufacturer writes K. a letter of introduction and offers
the painter’s address. Immediately after seeing the manufacturer out of the office, K. hastily
leaves the bank, even though there are customers waiting to speak with the Chief Clerk, to find
the painter who happens to live in the attics of the poor tenements of a suburb. At the meeting,
the painter affirms K.’s assertion that, despite his proclaimed innocence, “an enormous fabric of
guilt will be conjured up” ( 149) and reaffirms the fact that the court assumes guilt of all who
are accused. After all, within the pre;modern modality, “one could not be the object of
suspicion and be completely innocent” (' 42). However, Titorelli explains that, even though
guilt is predetermined, those who are accused are not without options. There are certain rules
which govern the outcome of the defendant’s acquittal, and these rules are strikingly familiar to
those of the classical model described by Foucault and Esmein. Titorelli informs K. that, if he is
seeking an acquittal, he must first designate which of three available types of acquittal he desires:
“definite acquittal, ostensible acquittal” or “indefinite postponement” ( 152).

" ! ; ""!
The first type of acquittal, Titorelli explains, is largely legend “of earlier times” and has
never actually been recorded ( 154). (The reference to the older era acknowledges the
vacillation of formations.) Moreover, he explains that although he has painted many pictures of
the “very beautiful” stories of full acquittal, he has never actually witnessed such an astounding
event ( : 154). Rather, the court assumes that everyone it comes into contact with is
necessarily guilty, and this presupposition actually renders guilt as fact. In fact, Titorelli notes
that once the court is convinced the about the guilt of a defendant, the “court can never be
dislodged from that conviction” ( 149;50). Thus, the only real possibilities, he explains, are
the latter two of the three: ostensible acquittal or postponement.

" # ; ""!
The “ostensible” or “apparent” acquittal is something like a temporary discharge.
According to Titorelli, the process would include the circulation of an affidavit of innocence by
the painter to whom the “text for such an affidavit has been handed down” ( 157) from his
father and is basically “unchallengable” ( : 156). Then, as the judges come to his studio to be
painted, Titorelli would explain the particulars of Joseph K.’s innocence and guarantee its truth
to the sitter in the form of the affidavit. This assurance is “not merely a formal guarantee but a

65
real and binding one”( 157), should the judge accept it. Some judges may not agree to accept
the affidavit, but Titorelli explains that if he gets “a sufficient number of Judges to subscribe to
the affidavit” he would then deliver it to the judge in charge of K.’s case ( 157). Because of all
the signatures, the judge would most likely grant the acquittal which would then allow the
accused to leave a free man.
However, in this case, the accused would only be “ostensibly free, or more exactly,
provisionally free” ( 158), or “apparently, or, more accurately, temporarily free” ( : 157;58),
because the judges of the lowest court and do not have the authority to actually grant full or
actual acquittal which is a power “reserved for the highest court of all” ( 158). Titorelli
explains it to K., stating that when one is “acquitted in this fashion the charge is lifted from” his
or her “shoulders for the time being, but it continues to hover above” the accused and “as soon as
an order comes from on high” the charge can be reinstated ( 158). Even though the accused is
temporarily acquitted, the documents regarding the case, the dossier, “continues to circulate”
from court to court. Apparently, the goal of circulating the case is to keep the case active while
evidence is continually gathered and the accused would be continually under surveillance.
According to the penal arithmetic, a slow gathering of minor evidence could eventually add up to
a proof of some sort. That is, if the evidence was in some way lacking, the course of the trial
would be altered, or, in Foucault’s words, permanently “deferred for further inquiry, (' 36).
In any case, it would be likely that one day a judge would recognize new evidence “and order an
immediate arrest” which would obviously end the previously granted freedom, beginning the
process all over again.

#* % # " 4 "4 # - #"

Indefinite postponement or protraction, on the other hand, requires less mental and
physical fortitude, but results in more of a “steady strain” ( 157). Titorelli explains that
permanent postponement “consists in preventing the case from ever getting any further than its
first stages” ( 160). Such a postponement, however, requires constant, immediate contact with
the courts and its judges. Titorelli explains, “You daren’t let the case out of your sight, you visit
the Judge at regular intervals as well as in emergencies” ( 160). This contact results in a
permanent delay that will keep the defendant free as long he has the energies to be involved with
the court. Unlike the ostensible acquittal, the postponement frees the accused of fears about

66
inevitable re;arrest, but it requires that the case stay perpetually active: “So as a matter of form a
certain activity must be shown from time to time, various measures have to be taken, the accused
is questioned, evidence is collected and so on” ( 161). In this case, the interrogations are brief,
but they function as a “formal recognition” of the accusation and its associated repute.
Now, this may again seem like a fictional, somewhat absurd, outcome of a criminal case,
but, William Burnham points out that within the classical discourse,
“under suspicion” was not just the legal label attached to the state of the evidence
in a given case. It was a formal outcome of a criminal trial — a kind of
purgatory between conviction and acquittal. Not only did defendants so labeled
have to carry around that official imprimatur, they were also subject to immediate
retrial should complete proof appear at any point. (1235)
Moreover, Burnham also notes that almost 90 percent of the cases ended in this type of
conclusion.43 This was Kafka’s reality. For example, during the composition of , the
National Socialist leader in Bohemia, deputy Klofáč, was arrested in September of 1914, but
“[o]wing to lack of proofs the trial was repeatedly postponed” (Nosek 51). Moreover, it was not
uncommon to arrest someone, only to release them for lack of proof. For example, Nosek points
out that both “Dr. Scheiner, president of the ‘Sokol’ Gymnastic Association” and Dr. Soukup,
“the Czech Social Democratic leader,” were arrested but released for lack of proofs against them
(Nosek 52).
In , this judicial conclusion is presented in the case of Block, a tradesman who
employs the same lawyer as Joseph K., who has had his case postponed for five and a half years.
He visits the court every day and practically lives in Huld’s office, diligently attending his case.
He reserved a space in the maid’s quarter and patiently waits to be summoned by the lawyer. In
his efforts to stretch out the postponement, he comically continues to hire more lawyers which

43
Burnham claims that this high rate of “under suspicion” verdicts represented a system
unable to make decisions. He writes, “In less squeamish times, when the formal evidence
system was first devised, it worked better at producing definitive decisions because judges in
inquisitorial systems in Russia and Germany, from which the system was borrowed, were
permitted to apply torture to obtain a confession” (1235).

67
leads to the depletion of all his monies and the eventual destruction of his business. 44 However,
he is so good at protracting his trial, that ironically and somewhat tragically, the steadfast,
committed tradesman learns that his case has not actually even begun.45

#" #
Another aspect of the older discourse which Kafka attacks here is the depravity of the
courts by introducing the possibility of judicial intercession. In the classical model, even though
lawyers and defendants were limited in their abilities to defend their cases, there was the
possibility of outside help. In many cases, the punishment of the accused could be mitigated, or
the accused could even be pardoned if intercessors (other than the lawyers) acted on behalf of the
accused, requesting mercy and forgiveness. According to Van Dülman, author of ! (
0 / , there existed “an entire system of pleas for
mitigation or reprieve which were not peripheral occurrences, but central aspects of the concepts
of justice in pre;modern times” (28). That is, intercession was built into the classical discourse
modality. After the necessary confession was obtained (or tortured out), individuals could then
44
At the same time, the conditions of also here allude to the
modern disciplinary process in which the subject is under constant, ever;present surveillance.
The bureaucracy is always watching, always gathering information, and always knowing.
Constituent of this shift was an interest in the reason or science that could support a judicial
methodology. The inquisitorial system was considered “more scientific and more complex than
the accusatory system” because it instigated the new sciences of criminology, which sought to
investigate, study, and the accused (and the populace in general).
45
The same is true for the energies of the lawyers connected with the attic courts. Huld
explains,
I once read a very finely worded description of the difference between a lawyer
for ordinary legal rights and a lawyer for cases like these. It ran like this: the one
lawyer leads his client by a slender thread until the verdict is reached, but the
other lifts his client on his shoulders from the start and carries him bodily without
once letting him down until the verdict is reached and even beyond it” (188).
The commitment led Huld to change the direction of his business and focus his energies on cases
associated with the attic courts.

68
petition the court for leniency or reprieve, thus reinforcing the judicial value of the confession
with the penal arithmetic. That is, once the accused was convicted, friends, relatives, or other
members of the community could approach the court before the sentence was passed. Van
Dülman notes:
According to the social status of the delinquent, a variety of groups could act as
intercessors: dependents, relatives, friends, worthy citizens too, guildsmen,
clerics, even entire parishes or city representatives and respected noblemen. The
greater the number and the higher the social status of the intercessors, the better
chance of mitigating the sentence. (29)
This is where the lawyers actually prove themselves marginally worthy in . Their
efforts or skillful defense is not what helps one who is accused. Rather, the most important
thing a lawyer can offer is his contacts within the court bureaucracy, and these contacts are, in
fact “the most valuable aspect of a defense” ( : 115). Kafka makes clear that this association
with the courts, or intercession, is “the sole means by which the trial can be influenced” ( :
116). Accordingly, K.’s lawyers and other lawyers characterized in continuously
remind those who are accused of their relative value because of their contacts with the officials
and judges. It seems, however, that the lawyers only know and have access to those who are
associated with the lower courts and consequently can do little to actually influence the course of
the trial.46
K.’s family does not approach the court directly, but his family does feel compelled to
intercede and approach whatever influential people they could reach. Although the reader is not
told about K.’s immediate family, the reader learns that K. is a ward of his Uncle Albert , “a
small landowner from the country” (91) who hears about the arrest from his daughter Erna who
goes to a boarding school in the city in which the narrative is set. While attempting to visit K. at
the bank, Erna is told about the arrest from a bank assistant who hoped that “influential people
would intervene on his behalf” ( : 90). Likewise, after learning about the trial (but unable to
see K.), she writes to her father to employ whatever assistance he can offer. She warns her
father that it might be to request some “influential friends to intervene” ( 93;94).

46
Likewise, Titorelli performs a type of intercession by intervening in the cases,
discussing them with the court officials, and requesting the appropriate type of leniency.

69
Consequently, Uncle Albert, seemingly functioning according to the illusion of constitutional
rights, seeks out his old college friend, Huld the lawyer. But here again, the lawyer proves as
useless as the doorkeeper in the parable. As the narrative progresses, it becomes clear that the
lawyers are powerless and intercession depends more upon the connection one has with the court
than professional fortitude. In other words, K. becomes more and more aware that the court is a
system of connected persons (i.e. women and the court painter) which functions according to
who is interceding on one’s behalf, not the efforts of one or even a multitude of lawyers.
While it is often argued that K. seeks help in the wrong places and that his stubborn,
seemingly irrational behavior is a character flaw which eventually leads to his execution, the
wise protagonist may have actually been seeking help from the only ones powerful enough to
offer the possibility of mitigation: the court’s women.
Van Dülman explains that “because of the highly evolved system of intercession, [the
court] was subject to socially powerful local groups which could exert influence upon the
sentence through respected citizens, high ranking clerics and members of the nobility” (32).
Kafka carefully characterizes the court as that which has a depraved attraction to women, and,
consequently, they are also attributed with a certain amount of influence and power.
Recognizing the ineffectiveness of the lawyers, K. realizes that he could get more help from
women, particularly women who are associated with the court who happen to have a strange
attraction to those who stand accused. He notes, “I seem to recruit women helpers, [ . . . . ] first
Fräulein Bürstner, then the wife of the usher, and now this little nurse [Leni] who appears to
have some incomprehensible desire for me” ( 109). K. goes as far as to dismiss the lawyer,
explaining that he still has much to do and that there “are still certain possibilities” that have not
been explored ( : 213) which include getting more help from the women. He justifies his
decision as follows:
Women have great power. If I could get a few of the women I know to join
forces and work for me, I could surely make it through. Particularly with this
court, which consists almost entirely of skirt chasers. Show the examining
magistrate a woman, even at a distance, and he’ll knock over the courtroom table
and the defendant to get to her first. ( : 213)
The priest in the cathedral chastises K. for his choice, but as Titorelli explained earlier, the court
is resistant “to proof which one brings before the court,” but a judge can be readily influenced by

70
others associated with (or desired by) the court. In a satirical, and very funny, literary
maneuver, Kafka introduces the seductress as the most likely to be effective (to intercede) within
a depraved court system.

< # = "#
K.’s first interest in the women of the novel is the strange, enigmatic encounter with
Fräulein Bürstner, K.’s fellow boarder. After the arrest, K. feels compelled to explain the
morning’s intrusion by the court officials into her personal space, so he stays awake and waits
for Fräulein Bürstner to return for the evening. Earlier, the landlady exposed K.’s fellow border
as a woman of questionable character because of her tendency to stay out late with different men
on a regular basis. Although K. angrily disagrees with Grubach’s assumptions, Bürstner is
similar to the other women in the novel in that she seems to be attracted to Joseph K. During the
meeting, she tries to seduce the protagonist like the other women. As K. tells of his arrest, she
disrupts his train of thought by her sultry gestures. Kafka explains that “he was no longer
thinking about what he was saying, for he was completely taken up in staring at Bürstner, who
was leaning her head on one hand [ . . . ] while with the other she slowly caressed her hip” (
26). Bürstner also wants to help K. and even has a “curious attraction” to the courts and would
like to learn “everything there is to know” about the legal matters ( 25). She even has plans to
begin working in a lawyer’s office as part of the clerical staff. K. responds by stating, “Then
you’ll be able to help me a little with my case” ( 26). This request for aid may seem simple
enough, but one must also understand the complexities of the mediation to which Kafka is
alluding. She can help precisely because of the relationship the women have to the attic courts
and the perverted mechanism of intercession.

! -!#
The Washer Woman is a perfect example of this type of sexualized intercessor. Coding
her as such, the author creates an introductory scene in which she is publicly groped and
accosted at K.’s initial proceedings. Moreover, she is continually abducted for the pleasure of
the examining magistrate and others associated with the courts. She is married to an usher of
the court, and even he accepts that he is powerless to stop the court’s exploitation of his wife.
(There is even a strange implication that the court owns the women from the time that they are
very young. For example, the young girls who pester Titorelli are said to belong to the court.)

71
While the groping scene establishes the court’s affinity and exploitation of woman, K. also finds
himself strangely attracted to the woman, precisely because of her connection to the court and
the possibility that she can him. Soon, he is caressing her hands, offering to help her
escape the court — but not without certain expectations, one of which was access to the
magistrates books displayed on the table. After letting K. examine the books, she affirms, “I’ll
help you [ . . . ] Would you like me to?” ( 52). Not that this “help” would be in the form of
pleading with the court officials. Next, the two characters sit down next to each other on the
platform, exchanging compliments and confessing their mutual attraction to one another. There
is no doubt that the woman is once an object of the court, but she also has a certain amount of
power over the court as well — power to intervene. She is, after all, married to the court usher,
but her closeness to the courts only serves to make her more accessible to its authorities. K.’s
concern with the possibility of intercession is evidenced by his interest in these connections,
particularly those with the upper courts. He explains to her that “to be of real help a person
would have to have connections with higher officials” (Mitchel 58), and he is also pleased that
she has access to the examining magistrate, who like many others associated with the court, is
smitten with her and even brings her somewhat inappropriate gifts.

#
Another woman from which Joseph K. seeks help is Leni, Huld’s nurse. K. first meets
Leni at the initial meeting with Huld. She warns Albert and K. that the lawyer is in ill health
and quietly cares for the old man while they begin their conversation. After she is excused by
the lawyer, she lures K. from the meeting by crashing a plate against the wall. When K. excuses
himself to see what had occurred, he finds the woman who admits, “I just threw a plate against
the wall to get you to come out” ( : 104). K. interprets this as a flirtatious gesture and admits, “I
was thinking of you too” ( : 104). She then proceeds to pull Joseph K., into the Lawyer’s dark
study where they sit together on a carved bench, a scene reminiscent of the meetings with
Fräulein Bürstner and the Washer Woman. K. then explains his hesitancy about meeting with
Leni because he felt obligated to listen to “idle talk of those old men” ( : 105). His comment
illustrates that already he knows that the lawyer will be of little help considering the operation of
the discourse which governs the attic courts. On the contrary, he is assured that Leni is willing
and able to help.

72
 There is just one problem. In order for an intercession to occur, there must, as Van
Dülman points out, be a confession. But K. refuses. Consequently, she accuses K. of being too
“unyielding,” encouraging K. not to fight the courts and simply confess. She says, “Confess the
first chance you get. That’s the only chance you have to escape, the only one” ( : 106). The
request for a confession mimics Sonya’s demand in 0 that Raskolnikov
confess and accept his suffering in 0 In both cases, the women feel that
there is hope, but hope and redemption is contingent upon confession. In the case of the former,
the confession could expedite the intercession, but K. ultimately refuses. He asks, “And if I
don’t confess, you can’t help me?” to which she significantly responds, “No” ( : 107). The
first meeting with Leni lasted for hours, long after Uncle Albert was forced to end his meeting
with Huld which continued for a bit despite Joseph K.’s disappearance. Uncle Albert was
furious and embarrassed, claiming that K. had unequivocally damaged his case by retreating with
the lawyer’s mistress. While Albert believes that he is dependant on the lawyer, K. (correctly?)
thinks otherwise.
Altogether, the attic courts functioned according to a pre;reformist discourse which
included the real, very literal aspects of inquisitorial discourse, including penal arithmetic, secret
inquiry and secreted laws, and the distorted possibility of intercession. However, the
complexity of the novel is augmented by the presence of more than one judicial formation which
function simultaneously. As mentioned in the introduction, there is a confluence of disciplinary
practices — a collision of two separate discourse formations. The reformist aspects of judicial
knowledge are also present. Subsequently, the new discourse, its relationship to the body, and
its manifestation in the novel must also be understood.

73
 ' &

' + & ,

E - +
3 - (
+
- -

BMichel Foucault47

The second discourse present in is a literal representation of the modern,

reformist movement which coincides with Foucault’s description of the panoptic disciplinary
machine. This new discourse is at odds with pre;reformist practices, and the interesting,
simultaneous occurrence is the actual source of confusion and tension in Kafka’s novel. While
the attic courts at once function according to the model of sovereignty and its rules of secrecy,
judicial arithmetic, and intercession, the narrative also incorporates strategies from a much more
modern system, based on individualization, observation, and surveillance. This new judicial
paradigm surfaced at the end of the eighteenth century, but the transition in many parts of Europe
lasted well into the nineteenth century and beyond. In the case of - the reader
witnesses the very moment of transition in which the formations momentarily function
simultaneously. It is important to note, however, that the discourse formations are not
represented by two groups; rather, the attic courts employ both modalities — representing a

47
' (209)

74
unique possibility only able to manifest at this particular historical moment: the unique historical
space from which Kafka spoke.

!# % -!" # % & ! "

According to Foucault, the transformation of disciplinary strategies replaced the object of
punishment, claiming that the two penal styles in fact “do not punish the same crimes or the
same type of delinquent” (' 3).48 He claims that the new discourse of general surveillance no
longer focuses on “the body, with the ritual play of excessive pains, spectacular brandings in the
ritual of the public execution” (' 101), but instead, the new modality concentrates on the mind
/ soul duality of the individual. The judicial discourse shifted from an autonomous power that
punished the anonymous bodies to one which investigates, observes, and judges the character of
the individual — the The modern system no longer focuses exclusively on the material
offense, the transgression itself; rather, it judges and punishes the “drives and desires” of the
accused (' 17), transferring the site of punishment from the exteriority of the body to “that of
abstract consciousness,” concerning itself with a new morality and the abstract state of the soul.
Foucualt’s lengthy statement is worth reading here; he writes,
What is now imposed on penal justice as its point of application, its useful object ,
will no longer be the body of the guilty man set up against the body of the king;
nor will it be the juridical subject of an ideal contract; it will be the disciplinary
individual. The extreme point of the penal justice under the Ancien Régime was
the infinite segmentation of the body of the regicide: a manifestation of the
strongest power over the body of the greatest criminal, whose total destruction
made the crime explode into its truth [i.e. “In the Penal Colony]. The ideal point
of penality today would be an indefinite discipline: an interrogation without end,
an investigation that would be extended without limit to a meticulous and ever
more analytical observation, a judgment that would at the same time be the
constitution of a file that was never closed, the calculated leniency of a penalty
that would be interlaced with the ruthless curiosity of an examination, a procedure
48
Punishment, according to Foucault, should be considered as a “social phenomenon” of
which the goal is not simply “to repress, to prevent, to exclude, [or] to eliminate” (' 24).
Rather, punishment is a means to produce valuable and productive bodies.

75
 that would be at the same the permanent measure of a gap in relation to an
inaccessible norm and the asymptotic movement that strives to meet infinity.
The public execution was the logical culmination of a procedure governed by the
Inquisition. The practice of placing individuals under “observation” is a natural
extension of a justice imbued with disciplinary methods and examination
procedures. (' 226)
The criminal is no longer known solely as a transgressor; rather those accused are known and
judged in their psychological totality: their specific qualities, needs, beliefs, histories, pleasures,
and habits. In Foucault’s words,
This discourse provided, in effect, by means of the theory of interests,
representations and signs, by the series of geneses that it reconstituted, a sort of
general recipe for the exercise of power over men: the “mind” as a surface of
inscription of power, with semiology as its tool; the submission of bodies through
the control of ideas; the analysis of representations as a principle in a politics of
bodies that was much more effective than the ritual anatomy of torture and
execution. (' 102)
His choice of words is important, and the reader must note that the body is no longer literally and
outwardly inscribed. Rather, the surface of the mind is written upon — creating, fabricating,
and controlling that which is referred to as self or individual. In terms of control and discipline,
this new model is characterized by the following:

Psychology of Mind (Soul) New Anatomy of the Body

Observation & Surveillance Individuation
Psychological Inscriptions

5 <( / F" G' '

In the reformed system, penal practice acts “on the heart, the thoughts, the will, the inclinations”
rather than inflicting pain on the accused (' 16). Although it is the soul that is judged, the
purpose of modern penal practice is still a procedure of acquiring and enforcing power over the
body of the individual, or, in the words of Foucault, “the systems of punishment are to be

76
situated in a certain ‘political economy’ of the body” (' 25). Foucault explains that in both
instances (even in the absence of the public torture and no matter what methods are used in its
place  i.e. incarceration), “it is always the body that is at issue  the body and its forces, their
utility and their docility, their distribution and their submission” (' 25).

2 " . #* 7 * ! $!" #
One of the most striking means of control is that which Foucault identifies as the
“invention” of the individual. Foucault asserts that the shift in disciplinary technologies actually
allowed for the creation of the individual — what he refers to as the .
In the pre;reformist model, the life of the monarch was known, celebrated, and
documented. Foucault notes, “To be looked at, observed, described in detail, followed from day
to day by an uninterrupted writing was a privilege” known only to those in power (' 191). On
the other hand, the masses were homogenized, undifferentiated, bodies without individuality.
Subsequently, in criminal affairs, the classical discourse was relatively unconcerned about the
individual: “The person of the defendant and his or her motives were of little concern” (Van
Dülman 28). That is, the classical discourse sought only to punish the offense and restore the
power of the sovereign which had been challenged. However, within the modern model, “the
focus shifted from the deed itself and strived to understand the motivations and desires of the
accused” (Van Dülman 28). The discourse shifted its target object from the exteriority of the
offense to the interiority of the accused. That is, the discourse sought to know and account for
the individual and his/her differences, irregularities, and pathologies. The individual became a
“case” and marks a significant shift in disciplinary technology.
In the modern system, the actual transgression was no longer the sole interest of the
courts; rather, the new disciplinary strategies correspond to a protocol designed to “supervise the
individual, to neutralize his [the criminal’s] dangerous state of mind, to alter his criminal
tendencies, and to continue even when this change has been achieved’ (' 18). That is, the
court is now also interested in the “soul” of the defendant: the system wants to know the
criminal’s state of mind, the person’s desires, perversions, and motivations to commit a crime 
thus judging, sentencing, and punishing the soul (rather than the body) accordingly. As
Foucault explains, “The criminal’s soul is not referred to in the trial merely to explain his crime
[ . . . ] it is to be judged and share in the punishment” (' 18). In other words, the court

77
controls and punishes the person’s interiority rather than the actual offense, holding the person’s
state of mind accountable to a certain, socio;scientific degree of determined normalcy.
Subsequently, the accused is also made to face newly created “subsidiary” judges such as
psychologists, criminologists, sociologists, physicians and so forth, each with a similar, shared
discourse.
Unique to this shift and the “invention” of the individual is a corresponding shift in the
focus and purpose of writing. In the classical model, writing was reserved to chronicle and
glorify the lives of kings and nobleman. Documentation was never needed concerning the
average, homogenous citizenry. But the shift in disciplinary practices and the corresponding
interest in the individual marked a shift in documentation as means of influence, dominance, and
control. Foucault makes the following observation: “The turning of real lives into writing is no
longer a procedure of heroization; it functions as a procedure of objectification and subjection”
(' 192). In the modern technique of power, all subjects are chronicled, documented, and
identified, marking a new modality of power. In fact, differences and peculiarities allow the
new discourse to function. Deviance, difference, pathology are those traits which the modality
seeks out, documents, and controls. In fact, this system, according to Foucault, creates a
situation in which the “madman and the delinquent” are more individualized “than the normal
and the non;delinquent” (' 193). So, in effect, modern discourse invented the individual by
documenting — by writing — the individual: “Discipline ‘makes’ individuals; it is the specific
technique of a power that regards individuals both as objects and instruments of its exercise”
(' 170). In the modern system, a mass of documentation and identification makes everything
about the subject known. The subject becomes a “case” — medical, psychological, scientific,
judicial, and so forth. It first identifies the individual as an individual and by doing so identifies
an object that can be studied, changed, tortured, and punished. That is, any written discourse
which identifies and describes the individual makes the individual available to those in power as
a malleable object.49

49
In fact, Foucault asserts that the “whole apparatus of writing” made possible “the
constitution of the individual as a describable, analyzable object, not in order to reduce him to
‘specific’ features, as did the naturalists in relation to living beings, but in order to maintain him

78
 - #"!" # !#* #* 7 * ! " #
Whereas the sovereign model punished and ritually destroyed anonymous bodies, the
modern system identifies, tracks, and documents the individual body. This shift is important in
this approach to Kafka’s work because it coincides with the differences between the two
narratives with which this project is concerned: “In the Penal Colony” and .
Interestingly, the condemned man in “In the Penal Colony” does not even have a name, referred
to only as the “condemned man.” He is the opposite of the individual — the anonymous,
punished, inscribed body. (Think about how many of Kafka’s characters are anonymous,
tortured bodies.) In the modern system, however, power no longer concentrated on the body as
a signifier of sovereign power  as the site where power revealed itself publicly, but instead the
body is coerced, watched, and documented.
Whereas the old discourse is written on the body, the new discourse writes about the
individual. Joseph K. is the representation of such an individual: observed, documented, known
(and named) individual. In the first pages of the novel, K.’s understanding of his place in the
world is confirmed by his identification papers. During the arrest, K. immediately tries to
present his papers to the warders and asks for theirs in return as if he were somehow empowered
by the law or capable of exercising individual rights (as if the Law existed to protect rather than
punish). As if it would appease the warders and convince them that they had apprehended the
wrong man, K. hurried to his room and meticulously shuffled through the drawer, looking for his
identification, but he could not find it: “At last he found his bicycle license and was about to start
off with it to the warders, but then it seemed too trivial a thing, and he searched again until he
found his birth certificate” ( 5). When K. hands the papers to the warders, they ask, as if
annoyed, “What are your papers to us? . . . You are behaving worse than a child. What are you
after? Do you think you’ll bring this fine case of yours to a speedier end by wrangling with us,
your warders, over paper and warrants?” (6). The warders continue to tell K. that they are
merely servants who are simply assigned to watch over his daily activities. K.’s reaction to the
arrest, on the other hand, identifies that he is functioning within and subjected by the modern
system, but it is within the realm of the imaginary — the realm of the Palace and its illusory

in his individual features, in his particular evolution, in his own aptitudes or abilities, under the
gaze of a permanent corpus of knowledge” (' 190).

79
constitution — and the extent of his interpellation is revealed by the fact that his reaction to an
arrest is to provide documentation in order to mark his individuality. The writing is constituent
of institutional control, not a signifier of autonomy.
This is where the complexities of the novel become apparent. K. is functioning
according to a discourse (the imaginary) which regards documentation as that which verifies
freedom, but the warders are representative of and speak from a different space (the modern).
The latter understands the record as that which documents criminality and condemns the
accused; the Law is that which documents and controls. As Foucault notes, the modern
examination “places individuals in a field of surveillance also situates them in a network of
writing; it engages them in a whole mass of documents that capture and fix them” (189). While
the warders disregard the importance of K.’s documentation, the examining magistrate, amongst
others, spends an enormous amount of time writing about Joseph K.’s case. According to the
washer woman, the examining magistrate writes “many reports” and in general “writes a lot” ( :
59). His job is to fix those accused within the matrix of the Law — to identify a suspect and
assign (or perform via the word) the extent of guilt. After K.’s first interrogation, for example,
the examining magistrate wrote about K.’s case for many, many hours well into the night. The
washer woman tells K. that the “examining magistrate really does write a lot of reports,
especially about you” ( : 60). So, the documentation identifies Joseph K. and contributes to a
dossier prepared by the examining magistrate which affirms and proves guilt.
Interestingly, the shift from anonymity is also articulated by the protagonist who feels
compelled to provide a personal history to those who accuse. For example, when K. is
contemplating firing his lawyer in a moment of quiet desperation, sitting motionless in his office,
K. contemplates his seemingly stalled trial and interestingly feels it necessary to submit a written
defense to the court in which he would “offer a brief overview of his life, and for each event of
any particular importance, explain why he had acted as he did, whether in his present judgment
this course of action deserved approval or censure, and what reasons he could advance for one or
the other” ( : 112). This type of biographical documentation is not only constituent of the new
judicial discourse which knows and documents the individual, but those who are accused, those
who are criminals, are of particular interest. Foucault explains that “the offender becomes an
individual to know” (' 252) because the biography offers insight into motivation of the
transgression and serves as a measurement of punishment and the means of correction. The

80
criminal, then, is his biography, desires, instincts, behaviors, and so forth that can be known,
studied, categorized, and judged. In place of the tortured, branded body of the criminal appears
a “non;corporal” reality of delinquency (' 255). Again, Joseph K. manifests as this bodiless
reality. Here, K. is thinking that by informing the courts of exactly who he is, that it will help
mitigate the transgression; he acknowledges the self as a “case,” and ponders offering his soul up
to the court’s examination.

&!# 4" -
The transition between two judicial discourses outlined thus far is historically marked by
the invention of the disciplinary method of generalized surveillance or panopticism. 50
According to Foucault, the old, pre;modern judicial discourse was superseded by “subtle,
calculated technology of subjection” (' 201) based on observation and surveillance controlled
by an invisible “network of gazes” (' 171). In his usual style, Foucault introduces the topic by
means of a historical anecdote in his book ' . He introduces the technology
of surveillance as that which originated with the plague which created a “frozen space” in which
bodies were confined and observed (' 195). The cities were locked down and the inhabitants
confined to their homes, creating spaces in which the populace was observed, identified,
documented, and categorized by the city officials according to his or her own pathology, creating
a matrix of hierarchical, “omnipresent and omniscient” power (' 197). Mimicking this
division of space and the power on which it is based, Jeremy Bentham designed the Panopticon,

50
Foucault’s theory of the gaze is seen early in his work. He first mentions surveillance
in / 0 3 where he explains the transition in the treatment of the insane.
Tuke’s efforts of reform removed the mad from the prison setting, removed their chains, and
placed them in a remote farm where they were encouraged to censor themselves so that they
were able to exhibit a certain level of normalcy: “he substituted for the free terror of madness the
stifling anguish of responsibility” (/0 247). In order to teach the mad to interact in society,
Tuke organized mock social outings such as tea parties at which “everyone was obliged to
imitate all the formal requirements of social existence” (/0 249) while being observed and
judged by the staff of the farm. This setting forced the mad to impose an amount of self;
surveillance and self;restraint in order to avoid punishment.

81
a planned prison and architectural marvel which contributed to (and depended upon) the power
of the institutional gaze. Foucault describes the architecture as follows:
We know the principle on which it was based: at the periphery, an annular
building; at the centre, the tower; this tower is pierced with wide windows that
open onto the inner side of the ring; the peripheric building is divided into cells,
each of which extends the whole width of the building; they have two windows,
one on the inside, corresponding to the window of the tower; the other, on the
outside allows the light to cross the cell from one end to the other. All that is
needed, then, is to place a supervisor in a central tower and to shut up in each cell
a madman, a patient, a condemned man, a worker or a school boy. (' 200)
The prisoner would then be continuously observable, never knowing when or if those in power
were actually present. Hence, the power was always visible in the form of the omnipresent
tower (the all seeing eye), but the power was unverifiable in that the prisoner would never know
if he / she was under observation at any given moment, insuring a state of constant or automatic
obedience and discouraging aberrant behavior.
In principle, the invention of the Panopticon solved a problem with prison structure, but it
was more than that. The result of the panoptic machinery contributed to the formation of a
society based on discipline. In Foucault’s words, “‘Discipline’ may be identified neither with an
institution nor with an apparatus; it is a type of power, a modality for its exercise, comprising a
whole set of instruments, techniques, procedures, levels of application, targets” (' 215). It is a
type of power which is based on surveillance and permanent visibility of the individual. That is,
modern culture and its institutions (military, religious, educational) adopted the method (the
discourse) in order create an extended, homogenous matrix of knowledge and control, ordered by
the ability to observe, judge, and know the individual. In other words, modern panoptic
“device” locates and centralizes institutional power in the ability to anonymously observe,
control, and punish. Part of the effectiveness of the continuous field of observation is its
normalizing function. Once the populace finds itself under constant supervision, there becomes
a “whole indefinite domain of the non;conforming” that is punishable (' 178;79). The
individual becomes the object of scientific investigation that abides by a discourse (criminology,
psychology, sociology, etc.) which outlines the limits of what is considered normalcy or deviant,
healthy or unhealthy, moral or immoral, and so forth.

82
 #7 "
Foucault points out that traditional sovereign or pre;modern justice was demonstrated and
made visible in the form of a single figurehead who relied upon the demonstration of surplus
power. The spectacle of the punishment and ceremonial marking (and destruction) of the body
was crucial in establishing the force and truth of its authority. Kafka illustrates the intricacies of
this modality in “In the Penal Colony” (see Chapter Seven) in which the public participation and
“seeing” was necessary for the success of the operation. The shift to “disciplinary technology,”
however, shifts its reliance from the public demonstration of autonomous, fierce, and very
violent corporal power to a principle of invisibility, which actually “disindividualizes power”
(' 202). In the panoptic method, power “has its principle not so much in a person as in a
certain concerted distribution of bodies, surfaces, lights, gazes” (' 202). In place of the
figurehead, a machinery of power is established in anybody who can assume the position of
observer. In the prison, for example, anybody could assume the role to viewer and enforce the
rules of the prison, but one must also recognize that outside of the prison, panoptic power
functions the same way. Power is dispersed to the gaze of the masses, who also agree to be
observed. Here all citizens are cogs in the disciplinary, panoptic machine who are at once
overseers and those who are subjected to the gaze.
Many of Kafka’s works capture the essence of the headless “invisible” authority and
endless bureaucracy. For example, in chapter two of , Joseph K. is summoned to a
series of hearings about his case. The first meeting was to be concluded the Sunday after his
arrest in a suburban neighborhood, but he wrongly assumed that the meeting place would be
marked in some way or another, or at least be recognizable as a place of law. Instead, he only
found tenements, occupied by their renters who were busily going about their weekend business
and whose children were playing about — but no sign of an official office. He entered the
courtyard through a service entrance and then went up the stairs but soon found himself
annoyingly lost amongst confined, dilapidated passages and multiple stairways symbolic of the
bureaucracy. As he wandered about the building he only found men lingering or sleeping,
children playing marbles, and women cooking and gossiping — hardly where one would expect
the “Court of Inquiry.” In effect, the court was hidden; it was indistinguishable, unseen, or
otherwise, #7 . Perhaps most telling is the Parable of the Law in which the doorkeeper
stands before the entrance and from “hall to hall keepers stand at every door, one more powerful

83
than the other,” creating an endless labyrinth of doorkeepers ( 214). Whereas, the sovereign of
the old discourse or the Old Commandant of “In the Penal Colony” was once visible, the
authority in , the authority of the new discourse, is invisible, thus articulating an
interesting paradigm reversal.

7!" #> 4! > !#* " "

Also unique to the new apparatus of discipline is the diffusion of observation in which all
subjects are not only observed, but are also complicit observers. The modern subject watches
and is watched, establishing a network of gazes which functions as a relay between various
levels of the disciplinary hierarchy. Foucault represents the diffusion of the gaze as pyramidal.
But, while sustaining a specific hierarchy, it does not simply function vertically: “its functioning
is that of a network of relations from top to bottom,” and it also works “from bottom to top and
laterally” (' 176). Thus, disciplinary power is “everywhere and always alert,” silently
penetrating the whole of society (' 177). In effect, it creates and distributes a subject who
watches, supervises and judges while expecting the same from others.
Despite the cramped, stuffy, confined spaces in , the setting is a transparent
space in that this ubiquitous surveillance is always present. Much has been written about the
closed, oppressive spaces in ; nevertheless- the penetrating gaze of the Law permeates
these low;ceilinged, confined areas. Even the bedroom of the protagonist is symbolically
invaded, designating it as a space within the realm of discipline; in fact, it is the quintessential
panoptic, disciplinary space in that the subject is isolated but observed via the aperture of the
window. At the very beginning of the narrative, Joseph K. is in bed watching and awkwardly
being watched by his neighbors and their strange visitor with the red beard, who is most likely
Bertold, a student associated with the courts who “would presumably attain to one of the higher
official positions” within the attic court system ( 56). K. is lying in bed facing the bedroom
window, watching the old woman in the window opposite who, oddly, also “seemed to be
peering at him with a curiosity unusual even for her” (1). The woman is joined by an elderly
man and the bearded stranger. The mutual exchange of the voyeuristic gazes continues even as
the arrest is taking place. As K. talks with the men who later reveal themselves as warders of
the court, he continually notices that the old woman “who with truly senile inquisitiveness had
moved along the window exactly opposite in order to go on seeing all that could be seen” ( 3).

84
This surveillance continues throughout the arrest and as K. moves from room to room, so does
the old woman and her odd accomplices. Little is mentioned in Kafka scholarship about the
strange exchange of the gaze, but this initial exchange is a significant marker of the shift in
disciplinary mechanisms. Kafka purposely includes the exchange which lasts through the entire
first scene of the narrative, and it deliberately establishes the presence of a disciplinary panoptic
mechanism, thus marking a transition from the anonymity of “In the Penal Colony” to the
identification of the subject in . The neighbors — the observers — are participants
within the mechanism in which the eye of surveillance watches and judges alongside the
representative of the court. Bertold’s presence in the apartment links the collusion of the
average citizen with the courts, implying that the older couple had notified the courts of
something they had seen previously. In fact, considering the interest the old woman shows, the
reader might even wonder if she was the actual traducer: the one who (falsely?) accuses. Could
she be the one who reported him to the attic courts?

4 !) 7 !# !#* " %" &

According to Foucault, Panoptic power was dispersed and adopted by a variety of
institutions. The observer of a population could be a scientist who analyzes, a philosopher who
studies, a criminologist who investigates, or any other who desires to watch, judge, and control.
The disciplinary, observatory function was also adopted by those responsible for production
(factories), physicians within medical facilities, and even teachers within the education system.
Similarly, the panoptic method penetrated the masses and empowered the everyday participant as
observer who could police the members of a group: “thousands of eyes posted everywhere,
mobile attentions ever on alert” (' 214) which included informers and everyday citizens
cooperating with the police to create a list — a documented account of all transgressions,
suspicions, and irregularities. As noted earlier, the Hapsburg Empire often relied on accusations
from the public in order to make arrests. The transition or the inter;space allows the anonymous
denunciation as a reason for arrest, and the transitioning space also encouraged observing,
watching and judging by the populace that would produce such accusations. In this case,
anyone potentially serves as the observer in the panoptic machine, providing constant
surveillance over the population.

85
 In , K.’s surveillance begins immediately following the arrest. Kafka makes it
clear that one of the reasons for release is to haunt the accused with reality of constant
observation within moments of the initial release. The presence of the bank employees
(Rabensteiner, Kullich, and Kaminer) at the arrest is, at once, a psychological strategy to confuse
and embarrass the accused, but it also installs a mechanism for surveillance within the bank.
The inspector puts the three men at K.’s disposal to help him get back to the bank, but it is clear
that the three men have been enlisted by the courts to help observe Joseph K. over the course of
his trial. After the arrest, he is escorted by the three clerks back to the bank where he is to be
under constant surveillance by the same three clerks who were “involved” in K.’s case ( 33);
moreover, the clerks also appear to be following K. on his days away from the bank. They
strangely appear when K. is in route to his first interrogation. K. catches sight of Rabensteiner
and Kullich in a streetcar and Kaminer in a balcony of a café “bent inquisitively over the railing
just as K. passed” ( 33).
Likewise, immediately following the arrest, Bertold is seen on the streets, exiting the
apartment where he had been seen previously. Eyes are now everywhere in . The
suspicion is not unnoticed by K., who becomes increasingly aware that he is being watched. He
is observed before, during, and after the arrest. He is escorted to work, and when he returns
home from work the day of the arrest, and finds a young man in the dark entranceway smoking a
pipe. K. obviously finds this to be unsettling and asks him his name. The protagonist is
casually informed that he is the house;porter’s son, but K. is still suspicious, turning around for
another look as he ascends the stairs.
As the trial progresses, the surveillance continues, and it becomes overwhelming,
naturally affecting K.’s performance at work. The vice president is always “lurking about” and
he feels threatened “from a thousand directions,” believing that he is being watched and
scrutinized from as many different places ( : 199;200). At work, “the suspicion was never far
removed that they were trying to get him out of the office for awhile to check on his work” ( :
200). He continuously stares out the window or sits with his head in his hands; it was “like a
form of torture, sanctioned by the court, a part of the trial itself” ( : 132). This type of
obsession is the disciplinary machine operating at its most effective in that the one observed is
constantly wondering (and never knowing for sure) who is watching and judging. During K.’s
visit with his uncle Albert, for example, he dismisses the seriousness of the allegations but he is

86
also anxiously aware that others are always listening. He abruptly warns his uncle, “You’re
talking too loudly, dear Uncle, the assistant’s probably eavesdropping at the door” ( : 92).

"" #1
Recognizing the shift to a panoptic discourse also solves one of the riddles of
The opening arrest is peculiar in that after notifying Joseph K. of his situation and observing his
reactions (as if his response could somehow implicate him) the warders simply leave K. to go
about his day as if nothing important had happened. They tell him, “You are under arrest,
certainly, but that need not hinder you from going about your business. Nor will you be
prevented by leading your ordinary life” (14). The inspector then ends the meeting by picking
up his hat and reminding K. to sustain hope and remember that he is under arrest — “nothing
more” (14).
The arrest in the absence of imprisonment or punishment certainly strikes the reader as
being very bizarre, but this is again an effort to de;familiarize a very real, literal (panoptic) tactic
of the discourse in which he is immersed. Such a release would not have been all together odd
during Kafka’s (and his readership’s) socio;political situation, and it is constituent of the older
paradigm and the investigatory methods are constituent of the new. Robinson points out within
the boundaries of the pre;reformed Germanic system, “pretrial detention was an exceptional
measure,” and adds that only “when guilt was highly probable and the offense was major, when
there was danger that the accused would flee, tamper with the evidence, or repeat the offense
would detention have followed the arrest” (Robinson 132). Only our own modern notions of
discipline conjoin arrest and imprisonment, and the reader must not layer his or her preconceived
notions about judicial procedure on the novel.
K. is arrested by an inquisitorial, autonomous authority which arrests first, assumes guilt,
and investigates later. But this investigation is also comprised of elements attributed to the
reformist or modern discourse, thus marking or outlining the inter;space, the transition from one
set of judicial rules to another. Whereas the older model concerned itself with the crime, the
modern investigation includes an interest in the subject of the accused — the behaviors, actions,
gestures, statements, and so forth. Hence, a new science of criminal psychology was born which
sought to observe and know the accused. So, in this case, the accused is left to his own devices
in order to observe his actions and reactions.

87
 Certainly, there is no better example of this new psychology in literature than 0
According to Max Brod, Kafka read a lot of Dostoevsky, and it is known that he
read ' , ) & 3 and 0 (Robertson 90).
Obviously, Kafka’s plotline was influenced by Dostoevsky’s novel in which the arrest is
purposely postponed and the suspect is allowed to roam freely in order to be observed and
eventually self;implicate. While K.’s situation is different than Raskolnikov’s in that the former
is actually arrested before the investigation, the situations are similar in that both protagonists are
free to go about their business while being placed under surveillance, and both are unable to
escape their consciences, which eventually betray their inner turmoil (and guilt). As Porfiry
explains, in some cases, an examining magistrate may decide not to arrest the suspect, but begin
surveillance instead in hopes that the criminal will make a mistake, worry himself into a frenzy,
and incriminate himself. In other words, the accused will often become so overwhelmingly
consumed with guilt that they will inevitably confess. Porfiry explains:
Now, if I leave one gentleman quite alone, if I don’t arrest him or worry him in
any way, but if he knows, or at least suspects, every minute of every hour, that I
know everything down to the last detail, am watching him day and night with
ceaseless vigilance, if he is always conscious of the weight of suspicion and fear,
he is absolutely certain to lose his head. (Dostoevsky 287)
This psychological breakdown manifests outwardly and plays into the hand of the magistrate.
Rather than employ physical torture to elicit a confession, the transitioning discourse relies upon
surveillance, self;destruction, and guilt (the latter of which Kafka was very familiar). In both
cases, the soul or psychology is that which is sought, but it is the body which offers clues and
eventually betrays.

"" ! " # " " "

In Dostoevsky’s novel, Raskolnikov often visits the police station on his accord as if he is
somehow drawn to the court — drawn to the Law. The novel revolves around this enigmatic
attraction by the guilty protagonist and his investigation by the examining magistrate, Porfiry,
who is an expert in the psychology of guilt and its manifestations. He knows that if he waits, the
accused will eventually mentally implode and surrender. Porfiry explains the odd behavior as
follows:

88
 Have you ever seen a moth with a candle? Well, he’ll be just like that, he’ll
circle like round me as if I were a candle: Freedom will no longer be a boon to
him; he will begin to brood, he will get himself into a muddle, entangle his own
feet in a net, and worry himself to death! [ . . . . ] More than that, he himself
will provide me with a mathematical proof,51 of the nature of two and two make
four ─ if only I allow a long enough interval between the acts of the drama . . .
And he’ll keep on, keep on circling me, closer and closer, and then, plop! he’ll fly
straight into my mouth and I’ll swallow him, and that will be very satisfactory, he,
he, he!” (Dostoevsky 287;88).
This example offers a perfect example of the transitioning judicial discourse at a similar time in
Russia. At once, Dostoevsky’s paradigm of the investigation is based on the logic of the
inquisitorial model, but it also relies on surveillance to obtain or elicit the necessary proofs.
Rather than immediately isolate the criminal in a prison or camp, the subject is made to remain
free, imposing a non;corporeal, interior torture. (Hence, the overlap of formations is also
present in Dostoevsky’s text.)
Compare Porfiry’s statement to the following remark made by Huld when K. visits to
dismiss the sickly lawyer; the old counselor tells K. that “it’s often better to be in chains than to
be free” ( 189), implying that those who are accused could eventually incriminate themselves
when left to their own devices. Kafka speaks from a similar space as Dostoevsky and mimics
this dynamic of attraction in . K. too is internally drawn to the Law. Certainly, the
reader might assume that the protagonist seeks exoneration, but K.’s attraction to the courts
might be more akin to Raskolnikov’s motivation.
When Joseph K. arrives at the unmarked building at which the first interrogation is to
take place, he realizes that he had failed to get directions and does not know which room to enter.
There were at least three staircases from which to choose, but K. intuitively knows which to
choose. Kafka writes, “Finally, however, he climbed the first stairs and his mind played in
retrospect with the saying of the warder Willem that an attraction existed between the Law and
guilt, from which it should really follow that the Court of Inquiry must abut on the particular

51
Note the reference to penal arithmetic here and compare to Kafka’s text.

89
flight of stairs which K. happened to choose” ( 35). He chooses correctly, and the intuitive
decision seemingly confirms the protagonist’s guilt.
Similarly, after his interrogation, K. leaves the courtroom rather abruptly and insists that
he would refuse to attend any future meetings. Still, K. is surprised that he is not notified of any
further investigation or times of interrogation. Subsequently, he assumes that he is supposed to
report back at the time and day of the initial meeting, and he actually feels “a great desire to go”
— like a to a flame ( 62). When he returns, he finds only an empty chamber, but he learns
from the usher that the courts occupy the attics of the tenements, and he is invited to observe the
offices. His eager attraction is again evidenced by his response: “he ran up the stairs even more
quickly than the usher” ( 62). So, it becomes clear that there is a strange mutual attraction in
The Law is “drawn toward the guilty” (6), the women of the courts are attracted to
the accused, and those who are guilty are drawn toward the court.

!" * ! !#* #" 4 !" #

The psychological interrogations and the breadth of the consequent investigations
become evident in the latter parts of the novel. The cathedral scene, for example, reveals the
extent of the surveillance and the interrelationship of disciplinary institutions (religious and
legal). Here, K. accepts the request that he accompany the Italian businessman to the cathedral.
The building is a site of interest to travelers, but more importantly, the cathedral is the site at
which K. is interpellated, the site at which he finally recognizes his place within the attic
discourse, the site at which he finally accepts his guilt.
While K. is preparing for his appointment, Leni calls K. at the office and he is very
abrupt, explaining that he is hurried for his appointment. Insightfully, Leni (who is close to the
courts) recognizes that the courts are behind the meeting, purposefully designed to intimidate and
coerce. She tells him, “They’re hounding you” ( : 205). K.’s response foreshadows his
acceptance and defeat; “he broke off the conversation with a word or two, but as he replaced the
receiver he said, partly to himself, partly to the distant young woman he could no longer hear:
‘Yes, they’re hounding me’” ( : 205). The statement implies an emotional or psychological
affectation by the relentless pursuit which would coincide with the psychological tactics
operating on and through the soul (psyche) of the accused.

90
 When K. arrives at the cathedral, he searches for the Italian businessman, but cannot find
the foreign visitor. Politely, he decides to wait inside the cathedral which is darkened by the
absence of light due to a rainstorm. Consequently, the space is only lit by a few inadequate
candles. Through the shadows, however, K. is able to see a priest who is ascending the
miniature steps to an oppressively small (almost comically tiny) pulpit, obviously too slight for
an averaged;sized man. Thinking that the priest is about to begin a sermon of which K. is not in
the least bit interested in attending or sitting through, he anxiously decides to exit the silent,
portentous cathedral before the sermon begins. He covertly makes his way from the front of the
church to the back row of pews, his footsteps echoing on the marble floor. What comes next is
important and worth marking here:
He had almost left the area of the pews and was approaching the open space
between them and the outer door when he heard the voice of the priest for the first
time. A powerful well;trained voice. How it filled the waiting cathedral! It
was not the congregation that the priest addressed, however; it was completely
clear, and there was no escaping it; he cried out: “Josef K.!” ( : 211).
What might well be the most important episode in the novel marks K.’s acceptance of the
discourse which accuses. To understand the moment of recognition, the reader must think back
to the beginning of the novel when he functioned within the boundaries of a discourse which
supposed constitutional rights and due process — the imaginary. In contrast, the end of the
novel here marks an abrupt discursive shift — a transition from one discourse to another (that of
the palace to that of the attics). Here, the priest, an agent of the attic courts and an interlocutor
within the formation which accuses, heralds K. The scene is uncannily similar to Althusser’s
explanation of interpellation which functions to constitute individuals as subjects (115).
Althusser compares interpellation to the hail of police officer commanding one to obey by
uttering, “Hey, you there!” (Althusser 118). By turning around in response, the hailed
individual becomes a subject within the domain of the specific discourse.52 K.’s response is
similar. He stops and silently looks at the floor:

52
Similar to Althusser, Foucault writes, “Whether one attributes to it the form of a prince
who formulates rights, of the father who forbids, or the censor who enforces silence, or of the
master who states the law, in any case one schematizes power in a juridical form, and one

91
 At the moment he was still free; he could walk on and leave through one of the
three small dark wooden doors not far from him. That would mean he hadn’t
understood or that he had indeed understood but couldn’t be bothered to respond.
But if he turned around he was caught, for then he would have confessed that he
understood quite well, that he really was the person named, and that he was ready
to obey. [ . . . . ] He did so and the priest beckoned him to approach” ( : 211).
The previous fantasy of constitutional law has extinguished, and K. finds himself closer to the
real, a subject of the courts, a guilty one who must obey. Here, the reader must think back to the
beginning of the novel, when K. is first heralded by the attic courts. Very similar to the hail by
the priest, K. had experienced a similar episode at the initial arrest. Explaining the happenings
to Fräulein Bürstner, he mimics the inspector’s “long;drawn shout: Joseph K.” (27). However,
in the early moments of the arrest, he dismisses the court and its authority, but in the latter scene,
he partially comes to terms with his situation.
He recognized the authority of the courts and his subordinate place within the discourse.
Even physically, K. takes the subordinate position below the pulpit as suggested by the priest,
who utters, “You stand accused,” and then informs K. of his relationship with the attic courts,
announcing that he is the prison chaplain. Next, he confirms Leni’s accusation, stating, “I had
you brought here [ . . . ] so that I could speak with you” ( : 212). It seems that the purpose of
the meeting is to inform K. that his trial is going badly and that his guilt has been proven.
K. still thinks that it is a mistake and believes that the courts have a preconceived notion
about his guilt (which they do). This error marks the incomplete nature of his interpellation.
While he seemingly recognizes the court’s authority, he still maintains the possibility of
innocence within a discourse that spitefully presupposes or even predetermines guilt. The
possibilities that Joseph K. imagines are not possible within the discourse which accuses. The
failure to completely understand the power of the courts frustrates the priest who screams at K.
from the pulpit. Enraged, the priest yells, “Can’t you see two steps in front of you?” ( : 214).
The silence that follows highlights K.’s misunderstanding, and he still imagines that he might
somehow escape the attic courts, that he might learn “how to break out of it, how to get around

defines its effects as obedience. Confronted by a power that is law, the subject who is
constituted as subject  who is ‘subjected’  is he who obeys” (! * 85)

92
it, how to live outside of the trial” ( : 214). In other words, he still wishes for the imaginary,
the realm beyond the attic courts, the realm of peace and constitutional law. But this is the self;
deception that the priest is referring to when he warns, “You’re deceiving yourself about the
court” ( : 215).
is interesting because the narrative functions within and introduces this
panoptic space and highlights the effectiveness of the mechanism. This observation, then,
answers one of the conundrums that is . In the first pages of the novel, Joseph K. states
that “the real question is who accuses me” and “what authority is conducting these proceedings?”
( 11). This much has been solved. He has been accused by the attic Law, a clear
representation of the Hapsburg Empire and its corrupt institutions. Even more, the reader can
now discern the multitude of rules that govern the Law’s discourse and recognize its vacillations
unique to a specific moment in history.

93
 ' & ?

&'( (

Coinciding with the broad epistemological shift toward the end of the nineteenth century,
a collection of interrelated scientific discourses sought to investigate and know the body, each
appropriating the body’s knowledge (its secrets) for its own use. Likewise, there is a distinct
shift in how the body is approached in the pre;modern and modern judicial formations and their
corresponding representations in Kafka’s texts. Although the reformist, judicial discourse
released the sovereign’s pain;inflicting hold on the body, it necessarily replaced it with “a new
political anatomy” (' 103) that controlled, compelled, subjected, investigated, or otherwise
manipulated the body through series of new disciplinary technologies (i.e. surveillance,
examination, and individualization). In Foucault’s words, the new modality is a “power that
insidiously objectifies those on whom it is applied; to form a body of knowledge about these
individuals, rather than deploy the ostentatious signs of sovereignty” (' 220). In a sense, then,
the role of the body in judicial affairs was reversed. The body which was once written on — a
surface, literally inscribed with the signifier (i.e. “In the Penal Colony”) — was transformed into
a segmented, individualized, and mechanized body, which conversely transmitted signs from its
distinct, interpellated interiority. In both paradigms, new and old, the body is considered as a
text, but the exteriority of the classical body was both the site of inscription and the site of
transmission. The modern body, on the other hand, is inscribed from within; the ideological
inscription works on the “soul” or the psychology of the “self” and this interiority festers the
signifier outwardly, up and through the flesh. In other words, the inflicted wound was replaced
by a rupture — a stigmata of sorts. Accordingly, the body is investigated as that which
unconsciously, uncontrollably, and unwittingly reveals its true psychological interiority — its
criminal secrets, mysterious motivations, and clandestine obsessions.

94
 This judicial paradigm shift53 was occurring at the very time Kafka was studying law at
the German University at Prague. Within the academic / legal climate of the era, the body was
being re;appropriated or re;territorialized from that which was punished, dismantled, and
viciously destroyed to that which could be read, known, and documented by the scientific,
criminological investigation. Of particular interest to this study is the early discourse of
criminal psychology, presented by Hans Gross whose lectures Kafka sat through for sixteen
hours a week during his fifth, sixth, and seventh terms (Hayman 50). Hans Gross, a
distinguished expert in criminal anthropology, a former examining magistrate, and one of
Kafka’s professors at the university, published an authoritative text on criminology, 0
(1897), which focused on the abstract, complete individual from whom truth was
thought to be accessible via the + , material phenomenon. Gross claimed
that penologists should be concerned not only with the deeds of the accused, but also the
“important conditions of his inner life” (56). The text is representative of this new judicial
discourse based in the psychology of law, privileging the understanding of a criminal’s motives
and the “psychophysical condition of the criminal” (Gross 2).
Gross’s methodology was grounded in the idea that observation (surveillance) of the
body would render truth visible through the manifestation of sensory phenomenon. In fact, the
professor dedicated a section of his celebrated book to phrenomenology: the study of the
appearance of “outer symptoms occasioned by inner processes, and conversely, the inference
from the symptoms to them” (41). Gross actually taught that exterior, physical manifestations
were semiotic symptoms of an interior condition (i.e. guilt). He writes, “Every mental event
must have its corresponding physical event in some form, and is therefore capable of being
sensed, or known to be indicated by some trace” (42). Gross urged caution against
generalizations, but claimed that the body is capable of betraying the subject’s guilt (or
innocence) and identifying contradictory statements made by the accused. The ability to read

53
In / 0 3 , Foucault points out that early psychology was
exclusively medicalized within the domain of psychiatry, but the shift in disciplinary epistemes
allowed other disciplines (discourse formations) to appropriate psychology for their own ends.
The psychology of law and criminal psychology, for example, are forms of this relatively new,
definitely modern discourse converging on the body.

95
these signals or “traces,” he believed, was a skill that could be learned and studied through keen
and careful observation.
An offshoot of phrenology, physiognomy — the science of determining one’s character
or temperament by exterior, physical appearances54 — paid special attention to the facial features
and expressions which were considered as portals to the inner character of the accused, asserting
that careful and learned, scientific study of features, expressions, and gestures could be of
substantial help to the investigator. Consequently, the criminalist was dedicated to the
observations: movements of the shoulders, limbs, nose, eyes, brow, mouth, teeth, etc, and the
changes in the timbre of the voice or skin tone. For example, Gross argued that blinking or
concealing the eyes for a longer than usual duration reveals that the subject is hiding or
concealing something.

!% ! !#* " *
In “The Law and The State in Kafka’s ,” Martha Robinson supports the
conclusion that Kafka would have been very familiar with Gross’s theories and the field of
Criminal Anthropology, which “postulated the born criminal recognizable by certain anatomical
signs reminiscent of primitive humans” (141). She correctly notes that Kafka even alludes to
this science in during a conversation between Block and Joseph K. At one point,
Block reminds K. that he was one of the men waiting in the lobby of the court offices on the day
that K. arrived at the offices. Block then explains that after observing K., the accused men who
were also present recognized guilt in his face and even concluded that he would soon be found
guilty. A variant of this interest in the exterior manifestation of guilt is also reflected in the
lawyer Huld’s subsequent observation that accused men are always the most physically
attractive. It is a “peculiarity,” for example, that Leni finds defendants to be particularly
alluring: “She loves all of them, loves all of them, and of course appears to be loved by them in
return” ( : 184). Huld finds the phenomenon to be more amusing than disturbing since he too
recognizes that those accused are actually more attractive than others. But shortly after Huld
recognizes the tendency, he makes another statement that needs explanation. He says that it
cannot be the guilt that makes the accused attractive, which seems to challenge the assertion that
54
Phrenology argued that the criminal was naturally “recognizable by certain anatomical
signs reminiscent of primitive humans” (Robinson 141).

96
the guilt is what festers outwardly; however, he is joking. He follows the remark with comical
aside, stating that “at least as a lawyer I must maintain this — they can’t all be guilty” ( : 185).
Kafka’s humor is not as obvious to the contemporary reader, but indeed, the truth that the lawyer
is referencing is the fact that all who are accused are necessarily guilty. Subsequently, the guilt
is, in fact, the source of the attraction.

!
Many critics acquaint Kafka’s obsession with guilt and judgment with Jewish religious
attitudes, but he was more concerned about being judged by those around him  his friends,
employers, and lovers, and family (particularly his father)  than he was by God.55 The source
of his anguish and self;humiliation can be linked to the fact that he fearfully obsessed about the
fate of his soul, judged by God, but also the possibility of being found “at fault” (%/ 25) by
others: his father the “ultimate authority” (%5 17), the women56 in his life, the Director at his
employment, and even strangers. Reading Kafka’s diaries one becomes aware that this
omnipotent, diffuse power to judge  “invisible judgment”  hampered his everyday existence
('# 37), and actually manifested as illness and immobility.57
Although I have agreed with Robinson and cited her work frequently in this essay, she
incorrectly concludes that Kafka’s opinion of phrenology theory is “indicated by Block who calls
the idea that guilt can be read in the lines of a man’s lips a silly superstition” (141;42). Kafka
hardly thought this to be irrational fantasy. Kafka’s belief in the link between the body and the
mind is clearly evidenced in his writings where he demonstrates an obsession with the “mortal
body” (%/ 21), particularly his own personal (mental and physical) suffering, which is

55
He also discusses the feeling of being judged according to his writing or his writing
being judged in an early diary entry (Jan. 19, 1911).
56
For example, he accuses Milena of judging him: “It’s up to you, after all, to judge, in
the end it’s always the woman who judges” (%/ 34).
57
Almost suggestive of Edvard Munch’s painting * , Kafka wandered the
streets unbearably self;conscious, yet afraid to go home and face the judgment of his father.
Kafka lived in what he terms a “disintegrating world” ('# 24)  or a “poisonous world flows
into my mouth like water into that of a drowning man” ('# 25).

97
persistently (and somewhat annoyingly) articulated in his diaries and letters in which he
continually associates his anguish as the source and impetus of his physical decline. For
example, in a letter to Milena he explains his ongoing illness of the lung, which was later
diagnosed as Tuberculosis of which he eventually died:
What happened was that the brain could no longer endure the burden of worry and
suffering heaped upon it. It said: “I give up; but should there be someone still
interested in the maintenance of the whole, then he must relieve me of some of
my burden and things will still go on for awhile.” Then the lung spoke up,
though it probably hadn’t much to lose anyhow. These discussions between the
lung which went on without my knowledge may have been terrible. (%/ 22)
In other words, his psychological torment manifested physically, marking the body’s interior and
exterior: “I’m mentally ill, the disease of the lung is nothing but an overflow of my mental
disease” (%/ 53). Similarly, in another instance, he suffered insomnia because of his constant
worry and concern for his guilty conscious: “sleep is the most innocent creature and sleepless
man the most guilty” (%/ 26).

" 7
A similar concern about the body and its relationship to criminology is represented in the
Dostoevsky’s novel, 0 . Kafka’s diaries reveal that at the time he was
working on and “In the Penal Colony,” he was thinking and writing about 0
. In an interesting diary entry dated December 20, 1914, Kafka comments on the
body’s relationship with guilt by responding to Max Brod’s claims that Dostoevsky “allows too
many mentally ill persons to enter” (2). Tellingly, Kafka responds by stating, “They aren’t ill.
Their illness is merely a way to characterize them, and moreover a very delicate and fruitful one”
(2). In other words, Kafka believed that Dostoevsky purposely delineates the character’s guilt
by describing the corresponding outward appearance. In 0 , the source of
the examining magistrate’s skill is actually based in this type of psychological / physical
investigation. Consider the following statement, particularly its references to the body:
But the criminal’s own nature comes to the rescue of the poor investigator, that’s
the point. [ . . . ] He, let us suppose, will lie [ . . . ] and lie extremely well, in the
marvelously clever fashion; this would seem to be a triumph, and he might expect

98
 to enjoy the fruit of his wits, and then plop! he will fall in a faint, and that at the
most interesting and shocking point! It is illness, we will suppose, and rooms are
sometimes stuff, besides, but all the same! All the same, he has given us an idea!
He lied incomparably well, but he couldn’t rely on his own nature. That’s it,
that’s where our skill comes in! Another time, tempted by the playfulness of his
own wit, he will make a fool of a man who suspects him, he will turn pale
[ . . . ]. (289;90)
In other words, the guilty criminal will not be able to hide guilt because the body will
uncontrollably reveal clues about the festering shame, and it is up to the skilled examiner to
“read” the physicality of the accused, the corporeal text.

!# % "!" # % #
In 0 , the young protagonist Raskolnikov, guilty of murdering an old
pawnbroker and her sister, is constantly swooning, feeling faint or otherwise caught in a state of
pathetic delirium, revealing his inner torment, even when his supposedly logical mind denied the
immorality of the crime because of his “extraordinary” character. Similar to Gross’s actual
lectures, Raskolnikov’s theory believed that “the eclipse of reason and failure or will attacked a
man like an illness,” (Dostoevsky 61) and that this type of lapse would actually lead to the
conviction of a suspect. Indeed, the frail, arrogant character of Raskolnikov suffers from a
pathological, nervous collapse, and the body of the protagonist systematically discharges traces,
signs, or texts identifying (marking) his guilt. Correspondingly, the corporeal text was read,
deciphered, and understood by the insightful examining magistrate, Porfiry. Porfiry purposely
lets the guilt simmer within the psyche of the protagonist from the beginning, simply waiting for
the eventual, complete, and overwhelming outward manifestation.
Immediately after committing the crime (perhaps even before), Raskolnikov begins his
downward psychological spiral. At first, Raskolnikov is summoned to the police station about a
matter other than the murder, and the description is worth describing here because the physical
space and the bodily responses are both very similar to Joseph K.’s first examination in
. Raskolnikov enters the building of the police headquarters where the “staircase was steep
and narrow and smelt of dishwater” (Dostoevsky 80). Like the poor tenements of the law

99
offices in (which also smelt of dishwater), the building is an occupied apartment of
sorts. Dostoevsky describes the surroundings as follows:
All the kitchens of all the flats on all four floors opened on to the staircase, and as
all the doors stood open almost the whole day, it was terribly stuffy [ . . . . ] and in
addition the nostrils were assailed by the sickly odour of new paint which had
been mixed with rancid oil. [. . . . ] All of the rooms were very small and low;
ceilinged. (80)
Within this oppressive space, the protagonist becomes feverish and lightheaded, afraid that he is
under suspicion. He notes, “Hm . . . it’s a pity there’s no air in here [ . . . . ] it’s stuffy . . . My
head seems to be spinning worse than ever, and my thoughts with it” (81). The narrator then
informs the reader that he “was conscious of a terrible inner confusion,” and that he “was afraid
of losing command of himself” (81). Raskolnikov’s confusion, faintness, inability to breathe,
and overall anxiety are direct results of the interior delirium associated with the murder that he
just committed, and he is unable to control his body’s reaction. The guilt paralyzes the young
student, and the oppressive space highlights and exacerbates (but does not cause) the already
present highly charged emotional state. He eventually passes out when he hears others
discussing the murder. Later, he awakes in a chair with “inflamed looking eyes” but manages to
make his way to the door, but, by the time he “reached the street he had quite recovered” (89).

50 #
Kafka adopts the same strategy of connecting illness with an emotional struggle in his
work. At a critical point in , Kafka purposely transforms Joseph K.’s physicality in
order to reveal the festering guilt and motivation of the accused. Kafka purposely informs the
reader that Joseph K. is guilty — literally. His body says so. K.’s encounter with the law is
uncannily similar to Raskolnikov, which is most likely a direct allusion to the great crime novel.
For example, at the conclusion of K.’s conversation with the usher, the protagonist is invited to
accompany him to the law offices, which are situated in the attics. The passage that follows is
often overlooked, but I believe that it is critical in that it deliberately mimics Raskolnikov’s
physical revelation of guilt. After spending some time in the attics, Joseph K. methodically
decides that he has seen enough and readies to exit the attic courts. Because of the maze of
offices, however, he soon discovers that he has lost his way and is unable to leave the building.

100
He becomes somewhat dizzied and uncomfortable — in an “unfit state” ( 67) — suddenly
afraid that he will be approached by a higher official of the court. He becomes lightheaded,
suddenly ready to faint. Absorbed within the labyrinth of the dilapidated attic and its dusty,
oppressive corridors, he shouts at the usher to escort him to the exit, causing a ridiculous
commotion within the halls. This bizarre, sudden psychological transformation — civil to
agitated — concludes with a moment of fixed immobility and faintness. Recognizing the
sudden change in his appearance, the female attendant offers him a chair to sit in, explaining that
the sudden onset of illness is most likely due to the oppressive heat and the lingering odor from
the tenant’s laundry. After all, she explains that the air is “barely breathable” at times and that
almost all of those accused have “an attack of that kind the first time they come” ( 67). After
sitting for awhile, the girl informs him that he is causing an obstruction and must leave or go to
the sick room. Fearing that going further within the confines of court would be worse, he
decides to leave and avoid the sick room. But, when he rises from the chair in an attempt to
exit, his legs give way. Panicky, Joseph K. pleads for help:
I should feel better at once, I’m sure of it, I’m not so terribly weak either, I only
need a little support under my arms, I won’t give you much trouble, it isn’t very
far after all, just take me to the door, then I’ll sit for a little on the stairs and
recover in no time, for I don’t usually suffer these attacks, I was surprised myself
by this one. [ . . . . ] Will you have the goodness, then, to let me lean upon you
for a little, for I feel dizzy and my head goes round when I try to stand up by
myself. ( 69)
The woman and the court officer in charge of the Information Bureau then escort the feeble
Joseph K. through the lobby, past the man who he had minutes ago self;assuredly insulted, and
to the front door. Ashamed, Joseph K. quickly regained his faculties causing the officer to
comment that it is only within the confines of the law offices “that this gentleman feels upset, not
in other places” ( 70). This section of the narrative is usually explained by attributing
suffocating characteristics to the court, but this type of reading misses the connection between
K.’s guilt and his illness. For example, Lida Kirchberger writes, “The circumstance of his
collapse and swift recovery show plainly that the law court offices represent a sphere to which
Joseph K. does not belong and for which he is unsuited” (79). She obviously misses the point;
his collapse is the precise, meaningful manifestation of his guilt.

101
 ! # 70 1
In 0 , Raskolnikov repeatedly exhibits this type of pathological
delirium, but he also displays extremely arrogant stubbornness (the exact opposite behavior) at
other times. Like the delirium, the egotistical behavior is also an outward, physical
manifestation of internal guilt. The protagonist consciously and deliberately decides to behave
and speak in ways that deceive the prosecution and frustrate the investigation. For example,
Raskolnikov proudly explains what he would do with the stolen goods if he had been the thief,
and he actually proceeds to describe to Zametov, the chief police clerk, the actions that he had
actually performed. On other occasions, moreover, he becomes purposely agitated and makes
outbursts as if the investigatory practices are intrusive and insulting. For example, at the first
meeting with the police, once he learns that he had been summoned about money owed to his
landlord and not the murder, he becomes obstinate and begins to shout. He spoke in a loud
voice and “felt suddenly and unexpectedly irritated and he was even enjoying the sensation”
(Dostoevsky 82). He continues by admonishing the police for wasting his time and speaking to
him in a disrespectful tone — all in efforts to conceal his guilt and psychologically trick the
police as if he were playing a game.

50 #% * #
At K.’s first meeting with the examining magistrate at the first interrogation, Joseph K.
again mimics the behavior of Dostoevsky’s protagonist. Purposely delaying his visit in order to
avoid appearing overly eager, Joseph K. arrived at the impoverished tenement building, “where
washing was already being hung up” by the tenants ( 35) and the door to the courts was
answered by a woman washing children’s clothes. K. is escorted through the maze of people
attending the session. Joseph K.’s attitude when he enters the court is somewhat hostile, much
like Raskolnikov’s when he is first addressed by the Law. When K. is confronted by the
examining magistrate, his concern is to “win over most of them for the time being” (39), but the
attempt at persuading the court quickly fades into obstinacy, informing the court that he does not
even recognize the accusations or the court. When he meets the examining magistrate, he is
chastised for being an hour late, but K. seems to disregard, or at least challenge, the authority of
the courts, going as far as to actually insult the examining magistrate before claiming that he
only recognized his trial as a legitimate act out of compassion and concern for others facing

102
similar predicaments. As mentioned earlier, he proceeds to pull the examining magistrate’s
notes from his hands, tossing them back to the table in an act of resolute defiance which
successfully humiliates the examining magistrate. Slamming his fist on the table, K. begins an
exaggerated tirade, dramatically accusing the arresting warders of corruption and purposely
defaming his character. The speech ends when it is disrupted by an official who begins
accosting the washer woman. In the midst of the conflict, K. recognizes that the men in the
audience are the members of the same bureaucracy which he accused, and amidst the confusion,
he actually threatens them, crying, “keep off or I’ll strike you” ( 47).
K.’s overreaction and agitated behavior is also exhibited when K. returns to court offices
the next week. Before his breakdown and sudden illness, his behavior is hostile. In the maze of
hallways, he finds several unkempt, pathetic men in the lobby who, though from the upper
classes, were now broken and acquiescent to the court — their dispirited, , bodies hunch
standing like “street beggars” ( 63). From their disheveled appearance and ratty clothes, it
seems as they had abandoned everything in the name of the Law. Literally standing “before the
law” the men seek admittance to the Law, but are refused. For example, when asked why he is
there, one of the men embarrassingly states, “I’m waiting” ( 64). At first K. feels a certain
sympathetic connection with the other accused, “sensitive” men, but quickly becomes agitated,
almost to the verge of madness. He reaches out to the accused man with whom he was
conversing, seizing his arms “as if to compel him to believe” that he was under arrest as well.
Even though the first touch was as not an aggressive gesture, “the man cried out as if K. had
gripped him with glowing pincers instead of with two fingers” ( 65). Seemingly annoyed,
Joseph K. “gripped the man with real force, flung him back on the bench, and went his way” (
65). While K.’s behavior is most often understood as a manifestation of a frustrated, wrongly
accused man, it is also very plausible that Kafka is actually signaling — via the body — that
Joseph K., like Raskolnikov, is actually guilty. After all, the reader must consider Kafka’s
understanding of the judicial discourse and his knowledge of criminal psychology and its
physicality. Considering Kafka’s treatment of the body and the judicial change that was
underway, there is no doubt that Kafka is characterizing K.’s behavior — agitated, sickly, and
arrogant as references to guilt, and it is a direct allusion to 0 , which had
already established a precedence for this type of criminal behavior and its subsequent
investigation. In other words, Kafka purposely mimics Dostoevsky’s representation of a

103
protagonist who often reacted to threats and accusations with violent and irritable behavior as a
device to mislead the investigators who would expect otherwise. And, more importantly, Kafka
is here alluding to the reality of K.’s guilt.

44
Consistent with the vacillation between discourse formations, Kafka’s treatment of the
body reveals the instability of the new discourse and helps illustrate the fragility of the shift. At
the time when Kafka was writing, the reformist discourse was being adopted throughout Europe,
but the Empire was not altogether willing to entirely relinquish its hold on the body. The
monarchy still conducted hasty executions, attacking and torturing the body of those thought to
be subversive to the Empire. Kafka identifies and articulates this residual discourse and its
vacillation in the lumber;room scene, one of the strangest chapters in . Here, Kafka
demonstrates a reversion to the old paradigm (the return of the Other) in order to reveal that the
atrocities of the Empire which had not been entirely eliminated. Consistent with the new
discourse of punishment, the assault on the body was moved behind closed doors, no longer a
public demonstration.
While working late one evening, not long after his episode in the court offices, Joseph K.
passes the bank’s lumber;room and hears sighs coming from . When he opens
the door, he finds what appears to be a makeshift torture chamber, lit by a single candle.
Robertson points out that “the candle which lights it [the lumber room], contrasting with the
electric light outside, makes the room resemble a survival from the primitive past” (94). She is
partially correct here; but the darkness is more symbolic, not of a past, but of a shameful secret in
the present — the Other, a remainder, a trace of the old discourse which now functions behind
closed (prison;like) walls. Foucault points out that at “the end of the eighteenth century, torture
was to be denounced as a survival of the barbarities of another age” (' 39), but he also explains
that discipline was moved behind prison walls, which survived up until the end of the nineteenth
century and in some cases beyond. marks a latecomer transition of the Hapsburg
Empire from the classical model of discipline to the modern.
In the room, Joseph K. he finds three men. The first is a torture artist, holding a birch;
rod and “sheathed in a sort of a dark leather garment which left his throat and a good deal of his
chest and the whole of his arms bare” ( 84), and the other two are the warders who initially

104
arrested Joseph K. — Franz and Willem. The latter explains that they are there to be flogged
because of Joseph K.’s report to the examining magistrate of their corruption and impropriety.
The warders clarify that confiscating the “body;linens” of accused men was an unspoken perk of
the job which was tolerated if the offense was not made public. But since K. complained, the
men had to be punished. Consequently, the men are ordered to disrobe (like the condemned
man in “In the Penal Colony”), and they are beaten mercilessly despite Joseph K.’s effort to
bribe the Whipper.
This remarkable scene marks a transition or blurring of the disciplinary practices,
combining corporeal punishment with the more modern elements of psychological torture. In
this essay, I have already demonstrated the presence of both older and newer discourse
formations and this is another example of its unique simultaneity. On the one hand, the torture
functions to punish the warders, but, on the other, it could also serve to elicit a confession from
K. by demonstrating the courts willingness to attack the body. Revealing the tactics of the
courts is a purposeful display of authority, ruthlessly designed to lead K. to the desired
confession. As the torture begins, the men scream in agony. Noticeably upset, K. is concerned
that the fellow workers will hear and come running. At that moment K. becomes part of the
system, more concerned that he will be associated with the spectacle of the courts than helping
the men escape their punishment. Furthermore, K. colludes with the court by hiding the
Whipper’s presence when the clerks inquire about the screams to which K. replies, “It was only a
dog howling in courtyard” ( 87), foretelling his own anticlimactic punishment. The reader
must certainly wonder why the punishment of the warders was brought to the bank where Joseph
K. would witness it. The motivation lies in the desire of the court to show the accused the
devices of its punishment and torture. In his book ! (0
/ , Van Dülman points out that torture was a gradual process, consisting of
several stages. In the first stage, the “executioner merely introduced his instruments” (19).
Certainly the exhibition of the torture and tools and explanations of the process would be
intimidating. The goal was to scare the accused into making a confession. In part, the tactics of
the court were successful. When K. returns to work the next day, he decides to check the
lumber;room, the scene of last night’s atrocities. Expecting to find an empty room, he is startled
to find that all three men were still present. As if they were waiting for K.’s return, the warders
began to scream for help again. K. abruptly slams the door, beats it with his fist, and “ran

105
almost weeping to the clerks, who were quietly working at the copying presses and looked up at
him in surprise” ( 89;90). Exasperated, K. orders that the lumber;room be cleaned and then
leaves the building — “tired, his mind quite blank” ( 90).

8 " #
The conclusion of the novel is no less ambiguous than the rest of the novel, but the
exegesis presented here in the last two chapters should help the reader to better understand the
conclusion of the narrative. At the end, a year had passed since the beginning of the novel, and
the joust between the competing discourses of the attic courts ends in a feeble, pathetic victory
for the old regime. and “In the Penal Colony” were written simultaneously, and
conclusions are nearly identical in their purpose. The spectacle of the old regime is rendered
impotent and pathetic — shameful. Similar to “In the Penal Colony,” the execution in
is somewhat of a last hoorah for an outmoded disciplinary system. Joseph K. is executed
without due process — in the dark and alone. The modality still functions, but like the writing
machine, the disciplinary system is in a degenerative, damaged state, barely able to perform.
The spectacle of the execution at the height of the writing machine’s (and the gallows’)
glory was a public carnival, but, historically, its collapse was warranted because of a fear of
retribution (misfire) should the public become disillusioned and turn the violence on the
sovereign and his agents. Hence, public executions were eventually moved behind prison doors.
Even now, our country refuses public participation or publication because of its inherent
shamefulness (and possible fear of violent protest). In “In the Penal Colony,” the public is
absent, triggering a misfire and signaling the collapse of discourse and its metaphoric machinery.
Here, the scene unmistakably similar. At the conclusion of the novel, under cover of darkness,
at a “time when a hush falls on the streets” ( 223), Joseph K. is seized by two executioners,
pathetically dressed as “tenth;rate old actors” ( 224) who seem ill;equipped to be executioners.
The darkness is symbolic of the secrecy and indignity of the event. Even, the writing machine
in “In the Penal Colony” operates in the bright, scorching heat of the desert. But now, like the
ending of the short story, the carnival is absent. K. notes, “They want to finish me off cheaply,”
referring to the economy of silence and absence. Similar to transfer of the execution site in our
judicial system behind prison walls, the site in has to be shadowed and silent. K. is
taken past an “open deserted square,” similar to where public executions would have taken place

106
historically. Ironically, Kafka notes that the square is now “adorned with flower beds” ( 225),
seemingly sanitizing and perfuming the site at which the theater of violence previously
functioned. Rather than the gallows (or a writing machine), K. is taken “out of town” to a
“small stone quarry, deserted and desolate” ( 227). There are no witnesses; there is no fanfare.
Some of the ritual carries over in that his clothes are removed. He is then laid on the ground, his
head propped up by a rock. The writing machine — literal and symbolic — is absent. There is
no announcement; there is no publication; there is no enlightenment. The precision and eerie
attractiveness is absent. Instead, K. is strangled and stabbed in the heart with a butcher knife —
“Like a dog!” (229).
The last line of the novel, which states, “it was as if the shame of it must outlive him,” (
229), has always been problematic in Kafka studies. Every reading with which I am familiar
always mistakes the ambiguous pronoun “it” for whatever transgression (usually assumed to be
religious, existential, or philosophical) that K. had (or had not) committed. But, I contend that
Kafka is referring to the disgraceful execution performed by a malicious regime (such as the
Hapsburg Empire) at a time when it was considered inhumane and unjust, but frequently
performed nevertheless. Think back to a statement from Foucault cited previously in this
document, outlining the judicial paradigm shift.
Now the scandal and the light are to be distributed differently; it is the conviction
itself that marks the offender with the unequivocally negative sign: the publicity
has shifted to the trial, and to the sentence; the execution itself is like an
additional shame that justice is ashamed to impose on the condemned man; so it
keeps its distance from the act, tending always to entrust it to others, under the
seal of secrecy. (' 9;10)
The secret execution of Joseph K. is complete. He is murdered like a dog, but the shame of the
empire, the shame of the modality, and the shame of humanity will survive beyond Joseph K.,
beyond Kafka’s novel, and throughout history. Indeed, Kafka captured the negative aspects of a
malevolent discourse functioning in secrecy, but he also seemed to know that it was a dying
discourse on the verge of collapse, being replaced with that of individuation, observation, and
surveillance.

107
 & '

@ ' & (@)

& ' (
 ' &
' & 3 0
+ ' & (,

Michel Foucault, known for his “use of arresting images or declarations” and “startling
beginnings” (Macy 97, Shumway 27), begins ' quoting the vivid, grotesque
description of the ritualistic torture imposed on Robert Francois Damiens, who attempted to
assassinate King Louis XV in eighteenth century France. As punishment, the accused was
ordered to make a ritualistic reparation in which he was publicly disgraced, tortured, and put to
death  an . Foucault quotes the following, now familiar, description:
[H]e was to be “taken and conveyed in a cart, wearing nothing but a shirt, holding
a torch of burning wax weighing two pounds”; then, “in the said cart, to the Place
de Grève, where, on a scaffold that will be erected there, the flesh will be torn
from his breasts, arms, thighs and calves with red;hot pincers, his right hand,
holding the knife with which he committed the said parricide, burnt with sulphur,
and, on those places where the flesh will be torn away, poured molten lead,
boiling water, burning resin, wax and sulphur melted together and then his body
drawn and quartered by four horses and his limbs consumed from fire, reduced to
ashes, and his ashes thrown to the winds.” (' 3)
The sketch continues for several pages, recounting the specifics from Zevaes, an officer at the
execution, who describes the victim’s cries for pity and how the “spectators were all edified by
the solicitude of the parish priest” (' 3). This is just one example of many graphic accounts
cited by Foucault in which this mode of justice punished according to a principle that applied a
“thousand deaths” by means of slow, painful torture in which the crime was publicly marked on
the body (' 12). The illustrations are instances of extreme, creative practices  the “art of

109
unbearable sensations” (' 11)  that inflict as much pain as possible before ending the
prisoner’s life. Foucault identifies these practices as examples of “ ,” for which he
quotes Jaucourt’s definition: “‘Corporal punishment, painful to a more or less degree [ . . . ] an
inexplicable phenomenon that the extension of man’s imagination creates out of the barbarous
and the cruel” (' 33). These imaginative punishments, administered in the cases of the worst
transgressions until the reformation in penal practices around the end of the eighteenth century,
included piercing, hanging, branding, quartering, breaking of limbs, strangulation, flogging,
starvation, and so forth.58
Kafka’s description of the monstrous in “In the Penal Colony”59 begins in much the way
as Foucault’s introduction. First, like Foucault’s beginning gambit, Kafka shocks the reader in
his tale of exquisite torture in which he dramatically presents a sinister, “singular” ( 0 : 189),
execution apparatus, 60 which is strikingly similar and equally grotesque as those devices
recounted by Foucault, and is perhaps even more captivating.61 The story begins with the
dramatic, but understated, presentation of a ritualistic, bizarre writing / execution machine set in
a tropical penal settlement. The massive, automated machine, driven by a cluster of batteries, is
set deep in the ground of a public amphitheater from which it rises high enough to require a

58
Although these practices have been eliminated, for the most part, in the West, there are
certainly countries that still use public torture. For example, as I write this essay, there are
reports (and video) of the gruesome punishments performed by the Taliban in Afghanistan and it
has been reported that Saddam Hussein cut the tongue out of one of his people and left him to
bleed to death in a public space.
59
According to Spann, Kafka composed “In the Penal Colony” in “two inspired vacation
weeks” in 1914, the same at which he was working on (108).
60
Malynne Sternstein points out that Kafka, laughing at the moments “of the most
grotesque and exquisite torture to his hero’s psyche and body,” found this, and many other of his
torturous tales, hilariously funny (315).
61
Written in 1914 and published in 1919, this is one of Kafka’s longest short stories,
second only to the “Metamorphosis” (Politzer). According to Santner and Levin, “Kafka
considered grouping it together with ‘The Metamorphosis’ and ‘The Judgment’ in a collection
called ‘Punishments’” (277).

110
ladder to reach its uppermost controls. The machine’s main parts resemble two large coffins
stacked seven feet apart from each other, “linked by four brass rods” at the corners (196). The
“Harrow,” which is hanging between the two rectangles, is a horizontal, glass tongue in the
shape of a human body from which multiple sets of needles extend to artistically engrave an
embellished script into the victim’s flesh. In other words, the judgment manifests as a literal
inscription, a brand of sorts, ornately carved by a set of mechanical needles into the flesh of the
accused: “[e]ach long needle is accompanied by a shorter one. The long needle does the writing
[ . . . ] and the short one spurts out water to wash away the blood and keep the writing clear” ( 0
201). On the lower box, the “Bed,” the naked “patient” is strapped by his neck, hands, and feet
on top of a layer of “specially prepared” cotton wool to absorb the heaving blood while the bed
“quivers in minute, very rapid vibrations, both from side to side and up and down” while also
rolling the body as to provide new writing surfaces for the inscription ( 1 195, 196). The text is
determined by the top, chest;like “Designer,” which determines the planned movements of the
inscription through a precise arrangement of cogs and wheels.62

%!- ! $!" #
In both cases, Foucault’s and Kafka’s graphic descriptions of the unashamed brutalities
are certainly shocking to the reader’s contemporary, “humane” sensibilities. The effect is
intentional. The twin depictions serve a similar rhetorical function (de;familiarization), but the
motivations and end results are very different.
David R. Shumway, author of / 5 , explains that Foucault’s use of dramatic
introductions, such as the one cited here from ' , “defamiliarizes” the
62
These “occupations” are also explained in a letter to Milena in which he enclosed
drawings that suggest a reference to the apparatus. Referring to the diagram he writes, “These
are four poles, through the middle ones are driven rods to which the hands of the ‘delinquent’ are
fastened; through the two outer poles rods are driven for the feet. After the man has been bound
in this way the rods are drawn slowly outwards until the man is torn apart from the middle.
Against the post leans the inventor who, with crossed arms and legs, is giving himself great airs,
as though the whole thing were his original invention, whereas he has only copied the butcher
who stretches the disemboweled pig in his shop front” (%/ 204;5).

111
historical situation in order for us, as readers, to “ +
- H 3 @ ” (115 italics mine). In this
particular case, Foucault wants to situate the reader, absent contemporary bias, in another time at
which the world was organized differently and punitive mechanisms were dissimilar. In other
words, in his usual manner of subverting traditional, historical narratives, Foucault attempts to
hold up the past as world that was organized differently than our own, but not necessarily one
from which we have advanced. Rather, Foucault believes that it is from an ill;conceived
understanding of our present selves and our practices that we have mis;conceptualized, ignored,
or mistakenly judged the disciplinary practices of the past. Foucault asserts that the myth of the
enlightenment, which recognizes that which came before as primitive or unreasonable, has led us
to conceptualize different disciplinary practices as those which function outside of reason,
relegating them to the realm of inconceivable barbarism. But here, Foucault’s explanation of
the disciplinary strategy theoretically allows the reader to “understand this otherness as having
its own logic, its own order” (Shumway 115). It is simply Other. Particularly, this mode of
discipline, which is based on a system of torture and revenge, is shown to be “[i]nexplicable,
perhaps, but certainly neither irregular nor primitive” (' 33). In other words, Foucault’s text
de;conceals this seemingly primitive system as a punitive process with an inherent, albeit
uneasy, order. Foucault explains:
The ceremony of public torture isn’t in itself more irrational than imprisonment in
a cell; [ . . . . ] One isn’t assessing things in terms of an absolute against which
they could be evaluated as constituting more or less perfect forms of rationality,
but rather examining how forms of rationality inscribe themselves in practices or
systems of practices, and what role they play within them, because it’s true that
‘practices’ don’t exist without a certain regime of rationality. (9/ 79)63

63
Commenting on ' , he also adds, “In this piece of research
on the prisons, as in my earlier work, the target of analysis wasn’t ‘institutions,’ ‘theories,’ or
‘ideology,’ but  with the aim of grasping the conditions which make these acceptable
at a given moment; the hypothesis being that these types of practice are not just governed by
institutions, prescribed by ideologies, guided by pragmatic circumstances  whatever role these

112
In other words, Foucault understands torture not as an illogical, barbaric disciplinary method
associated with medieval practices, but as a modern system functioning according to an
historically contingent rationale that simply punishes the body differently than our current
practice (which, according to Foucault, focuses on the “soul” rather than, or in addition to, the
physicality of the body).64

" ! " . " # %" "

Kafka’s description functions similarly to Foucault’s in that it is a similar invitation to
experience the alterity of corporal punishment. Kafka’s creative description also de;familiarizes
the seemingly barbaric act in order to articulate the internal logic of the Other, but the motivation
and purpose are quite different. Whereas the beginning of ' focuses on the
disappearance of public torture as a moment which illustrates a shift in disciplinary strategy,
Kafka’s describes the unsettling reappearance of a strategy that continually haunts his present.
Kafka’s tale is a story of resistance. It is political. And, it is literal. While Foucault brackets
the ideology of the past and attempts to understand its structure from a philosophical distance,
Kafka writes amidst a dangerous political threat and a real return of barbaric practices.
Subsequently, the author gives voice to the Other as a tactic of resistance. That is, Kafka is
motivated to unveil the precise inner workings, the logic, of the disciplinary strategy in order to
defeat its continual presence in his world— the world of prewar Bohemia and eastern Europe.
In Kafka’s time, penal colonies were a reality, and more importantly, he recognized the punitive
mechanisms of the colonies as the same which governed the workings of the malicious Austro;
Hungary Empire.65 Rather than simply portray the paradigm as barbaric, inhumane, and

elements may actually play  but possess up to a point their own specific regularities, logic,
strategy, self;evidence and ‘reason’” (9/ 75).
64
Dryfus and Rabinow: “The notion of rarefaction presumably points to the fact that
other times with other discursive formations speech acts which for us are bizarre and
incomprehensible were taken seriously, whereas speech acts which we take seriously now would,
if anyone chanced to utter them, have seemed the ravings of a madman or a visionary on other
times” (71).
65
In the Austrian criminal code, torture, under certain circumstances, continued into the
eighteenth century even though it was abolished in most other parts of the Western world. It was

113
necessarily evil (which would have rendered him in a situation similar to Joseph K.’s), Kafka
(the student of law) insightfully represents the outdated judicial system’s uneasy rationality and
proceeds to outline its function in order to reveal its shortcomings and the reason for the eventual
implosion.

! !" 7
Kafka begins the story by explaining that a foreign explorer has visited a penal colony
that is suffering a political crisis of sorts. The narrative is set in a discursive space in which the
colony’s rule is struggling between a totalitarian regime of the past and a new order ruled by the
rationalism associated with the Enlightenment. In other words, the narrative represents a battle
of disciplinary orders: the discourse of autonomous, sovereign;based justice (the classical model)
augmented by reformist movements (based on signification), and the reformed penal
mechanisms of the Enlightenment (the modern model largely adopted in the western world).
Representative of the former, the old commandant, who designed the machine and its alarming
mode of punishment, has died, and the machine as a mode of discipline, once respected and
feared, is now facing its own metaphorical execution. The new commandant, who is “no
upholder of the procedure” and “apparently of a mind to bring in, although gradually, a new kind
of procedure,” is hostile toward the apparatus because of the system’s apparent barbarism and
lack of due process ( 0 199), which is also constituent of reformist philosophy. In Kafka’s
narrative, the new commandant is a representative of a more “lenient school of thought” which
considered the older mechanism inhumane. But, the officer, a proud disciple of the former
commandant and representative of the former regime, is fighting for the continuation of the old
order, resisting the institutional change of disciplinary practice. Still, the space opened by the
narrative is an inter;space, both sympathetic and in opposition to the real historical conditions of
reform. The officer incorporates early reformist practices of signification within the older
model of a fierce, autonomous power while the new commandant is seemingly enfeebled by his
concern with his ladies and the more humane practices of the new.
At the invitation of the new commandant, the explorer attends what is supposed to be the
“execution of a soldier condemned to death for the disobedience and insulting behavior to a

not abolished in Austria until 1776 and continued is parts of Germany until 1828 (Van Dülman
21;22).

114
superior” (191). But the new commandant supposedly has ulterior motives of which the officer
is well aware: “it seemed that they were asking his [the explorer’s] opinion about the legal
action” as if the entire judicial system was “strangely dependant on the explorer’s verdict” ( 0
207, Weinstein 22). Subsequently, the officer attempts to convince the explorer of its
advantage, 66 ardently defending the machine and its corporal practice, suggesting that the
proposed “other” courts are not as effective because their inexhaustible bureaucracy (seemingly
alluding to Joseph K.’s predicament in ). Correctly, Arnold Weinstein, author of
“Kafka’s Writing Machine: Metamorphosis in the Penal Colony,” explains, “The desperation and
passion of the story lie precisely in the officer’s efforts to reach the explorer, to bring the outsider
over to his point of view” (22). Sensing the explorer’s skepticism, the officer informs the
traveler that he already knows that his response to the apparatus will be something like the
following: “‘In my country a judicial procedure is different,’ or, ‘In my country the defendant is
interrogated before the verdict,’ or ‘In my country there are other forms of punishment besides
capital punishment,’ or ‘In my country torture existed only in the Middle Ages’” ( 0 213).
Readers immediately identify with the explorer and easily recognize the anticipated responses as
their own. But, interestingly, the officer feels confident that these arguments do not in any way
“discredit” his procedure because he thinks that the explorer and his (our) culture have
misunderstood the disciplinary method and its advantages. Subsequently, he hopes that the
officer (and the reader) will come to understand the effectiveness and logic of this “other”
discourse ( 0 213).67 In the end, the explorer cannot manage any sympathy for the methods,
but he heroically comes to admire and appreciate the officer’s passion and commitment.68

66
The explorer is there to observe  to watch, which is characteristic of Kafka’s fiction.
Sternstein points out that “his scenes are essentially performative: his depictions of sex, for
example, are always public, with someone watching and often annotating. [ . . . ] Gazes are
constantly interpenetrating ” (317).
67
He partially succeeds. The machine is certainly shocking, but, on the other hand, both
the reader and the protagonist explorer, “trapped in European attitudes” ( 0 212), also
uncomfortably come to recognize the internal reason and the effectiveness of the disciplinary
procedure as that which functions  quite effectively  according to a specific logic, affecting,
in the end, a somewhat sympathetic recognition of the officer’s passion and confidence in his

115
 7 /
“In the Penal Colony” has been the target of numerous other interpretive attempts, some
of which read the spectacular machine as a metaphor for the writer’s personal turmoil (Politzer)
or the Old Commandant as the omnipresent father figure who haunts Kafka’s work (Sokel).
Others (Thomas) posit Jewish Diaspora as thematically central, and others discuss Kafka’s’
political motivation and allegiances (Pan). Almost always, interpreters call attention to the
apparent religious themes of guilt, execution, and resurrection (Thomas, Politzer, Sokel, Fickert
et al.). Kurt J. Fickert, for example, summarizes the traditional interpretations nicely and is
worth quoting at length here:
In his study of Kafka, Heinz Politzer concedes, while placing the story of the
penal colony in the framework of Kafka’s guilt complex, the result of his having
become a writer, that “In the Penal Colony” deals with religion: “he created in the
torture machine . . . a metaphor of what religion meant to him.” Furthermore, the
Christian element in Kafka’s consideration of a philosophy of religion is
unmistakable; it has been established that the role of the officer is that of a
surrogate for God and that the machine is a symbol or relic with redemptive force.
Walter Sokel, who otherwise relates “In the Penal Colony” to the problem of the
father;son conflict, thus summarizes Kafka’s concern in the story with the
Christian religion: “Essential elements of the ideology of the penal system are
closely connected with Christianity.” (33)
Still, Fickert’s work, while supposedly offering a “literal” reading of the text, still relies upon the
same religious symbols and metaphors. Kafka’s work is complex and supports many
interpretive possibilities; however, the political, surface understanding of the disciplinary

procedure. Still, it is not enough. Kafka also manages to illustrate its ultimate failure and once
again affirm and reinforce its Otherness.
68
I have read and taught this story many times, and the reader is typically unable to
relate to the officer’s admiration. This, I believe, is because the contemporary reader is too far
removed from the literal aspects of the text and not able to comprehend the intricacies of the
machine’s method.

116
formations in the short story is largely ignored, but it must be considered alongside these other
interpretations.

" #
Methodologically, it is particularly appropriate to turn to Foucault for aid in
understanding this narrative considering that, although certainly applicable to other parts of the
western world, Foucault’s treatment focuses on a French history of disciplinary power. Thus, I
rely upon a close examination of the “archive” which Foucault provides in '
and his other related texts, and, subsequently consider Kafka’s fiction as an extension of this
collection of documents in that the work is an articulation of a specific and unique historic
possibility. To begin this discussion, I offer an examination of sovereign justice, claiming that,
despite its obvious cruelties, this modality was quite an ordered, ritualistic, methodical form of
punishment which relied on ritual terror, revenge, public corporeal torture, and bio;judicial
inscription; I then situate Kafka’s text within this model, claiming that Kafka’s representation of
this discipline directly coincides with, adds to, and substantiates the historical, archival analysis
maintained by Foucault.
It is too easy for readers of Kafka to embrace the officer’s tactics as a bizarre
manifestation of the surreal or the absurd. Readers see what they expect to see. My students
see the horrible, but they are rarely able to link “In the Penal Colony” to the real possibilities of
Kafka’s present. The informed reader, however, must be aware of the author’s relationship with
his times and his desire to represent the of his times. In my opinion, this will;
to;represent is the thesis which controls much of Kafka’s oeuvre. “In the Penal Colony” is an
example of this representation — a representation which is historically grounded and functions
within the parameters of a real disciplinary methodology (albeit uncomfortably).
Bauer is correct in noting that the author’s work frequently emphasizes the “the affinity
between Kafka’s world and the grotesque, mysterious menace of events in our lives, or the chaos
which modern civilization is inflicting in the name of rationalism” (Bauer 17). But Bauer and
other theorists are much too general, failing to isolate the precise impetus of Kafka’s position.
For Kafka, “In the Penal Colony” is a representation of the uncomfortable, historical rationalism
of the grotesque  the rationalism of torture — which appropriated the body as the site at which
mechanical, monarchical power was literally inscribed. Along with the reformists who

117
understood the effectiveness of the corporeal technology, Kafka (in the name of the explorer)
maintains that corporeal punishment is inhumane and intolerable. Rather than dismiss torture as
simple barbarism, however, Kafka explores the failed logic of torture — representing, de;
familiarizing, and describing it (and the loss of its necessary conditions) in order to defeat its
continuous (re)appearance. Subsequently, the goals of this chapter are to:
1. 1# $ " " # %" 4 *
The readers should be aware that penal settlements and their atrocities were a part of
Kafka’s political world. Kafka, as a student of law, certainly understood the inhumane
machinations of the colonies. Although, the rationalism of the disciplinary mechanisms
was rejected by the reformist movement of the eighteenth century, they stubbornly
survived well into the twentieth century. Kafka lived during a period in which the
Hapsburg monarchy repeatedly resurrected these forms of atrocious punishments to serve
its selfish, political ends. Hence, it is critical to recognize the relationship between the
narrative and Kafka’s reality in which he fights against the continual return of the Other
by de;familiarizing his present. That is, his representation marks the constant
— a return of the Other — in which he summons the ghost of corporeal
practice in order to remind the reader of its depravity, to recognize its modern reality and
its recurrent manifestation within the boundaries of the Hapsburg Empire, and to
ultimately defeat its practice.
2. * #" % " ' " ! 4" !#* 4 #* #1 -4 #
This particular short story captures and represents the very last moments of a disciplinary
strategy at the site of its implosion — the moment at which one disciplinary discourse is
superseded by another. The narrative is a product of a singularly possibility and can
only be understood as that which was made viable by an historical rupture within a
specific judicial discourse formation. Kafka’s narrative uniquely identifies these
distinctive discourse formations and their inherent tension is that which provides the
impetus of the story’s plot.
3. 84 !" " %" * #" ! # %3 "
Kafka’s writing machine insightfully reveals the role of the body and its functions in the
theater of sovereign;based justice. Outlining the structures which govern the discourse
discloses the interesting appropriation of the body and its role in the circulation of signs.

118
 Here, Kafka presents a conflation of signifiers in which the wound / text at once refers to
the power of the sovereign, but also articulates the specifics of the law and its
transgression. Again, Kafka’s story transforms or de;familiarizes the recognizable
process of corporeal punishment into a unique, striking process seen afresh  revealing
it for what it is: a ceremonial social marking69 of the body of those who refuse to adhere
to the accepted (albeit imposed) judicial discourse of an autonomous authority.70

69
The disciplinary process echoes Foucault’s emphasis on what we can term bio;judicial
inscription.
70
Walter Benjamin also discusses defamiliarization in Kafka’s work. See “Franz
Kafka: On the Tenth Anniversary of His Death.” Also, see Carrie L. Asman’s article “The
Language of Defamiliarization: Benjamin’s Kafka” in which she explains the process of
“manipulating the dramatic fluctuation between concealment and disclosure” as a means of
defamiliarization (80). Likewise, Gailus recognizes it as a favorite trope of Kafka, asserting that
this “slight adjustment of the ordinary [ . . . ] is indeed what happens everywhere in Kafka’s texts
in which daily objects, made all but invisible through familiarity, are transformed into enigmatic
signs” (Gailus 295).

119
 ' & '
& ) ' ' '

Obviously enough, the narrative is set on a remote, island penal colony  a type of
settlement for exiled prisoners which, historically, would not have been all that uncommon in
Kafka’s era. Kafka (1881;1924) lived at a time in which there was widespread condemnation of
inhumane judicial practices, but, it was, nevertheless, one at which penal colonies, known for
their inhumane atrocities, still functioned. Britain, France, Japan, Russia, and others nations, for
example, each operated penal colonies to which they transported criminals to serve out criminal
or political sentences. However, each nation had different customs of punishment and equally
different reasons for transporting prisoners. For example, Britain, at the end of the eighteenth
century, transported criminals to America and then, after the United States won its independence,
to Australia until 1840 in order to lay claim to areas for British economic development. These
colonies, according to John Hirst, author of “The Australian Experience: The Convict Colony,”
from the beginning, resembled more of an “ordinary colony” than a penal institution (264). In
fact, the Australian settlement  said to be “awash with rum”  permitted the convicts luxuries
including limited access to stores, pubs, and certain other entertainments when they were not
working; moreover, many ex;convicts chose to stay in Australia of whom many actually became
wealthy landowners after they were released (Hirst 274). The French penal colonies, however,
were quite another story. No person, soldier, or inmate preferred to settle or spend a solitary day
longer than necessary on the French penal islands in French Guiana. France exiled its prisoners
to this set of islands, collectively known as “Devil’s Island,”71 from 1884 to 1946, a time when

71
Devil’s Island itself was feared as a camp of solitary confinement and otherwise
known as “The Rock” (Allison;Booth 5).

120
the British and other states were abandoning their settlements. Whereas the British transported a
wide range of criminals, from petty thieves to serious offenders, French exile was “reserved for
hardened criminals, whom the system had given up reforming” (O’Brien 212).72 Unlike the
other colonies in which the labor was considered a resource, the prisoners of the French colonies
were troublesome liabilities. 73
Not only were everyday luxuries withheld from the French convicts, but the prisoners
suffered atrocious acts of cruelty such as being buried alive, shackled stationary until bitten to
death by the jungle snakes, or solitarily confined until driven mad (Allison;Booth, Belbenoit).
For example, one convict who lived to tell of his experience writes that the penal islands were
places of “punishment and repression unparalleled on earth for inflicting pain and slow death”
(Belbenoit 170). The French colony was referred to as “‘the bloodless guillotine’ because of the
high mortality rate associated with serving time there,” according to Patricia O’Brien, author of
“The Prison on the Continent: Europe, 1865 ;1965” (212). In agreement, René Belbenoit,
author of the captivity narrative ' ,74 claims, “Of the seven hundred [convicts] that
arrive each year in Guiana, four hundred, the records show, die in the first year” (57).

72
This is debatable. Some of the captivity narratives associated with the island such as
' @ # by Allison;Booth and ' by René Belbenoit chronicle the
imprisonment of petty thieves and other minor deviants. For example, Belbenoit claims that in
“the chaotic years in France just after the war the courts were excessively harsh and were quick
to send men across the sea when they possibly did not deserve this doom” (30).
73
Historically, the French authorities were reluctant to allow any visitors to the islands,
and, when they were, the procedures were temporarily sanitized.
74
The ' , or “La guillotine séche,” refers to small cells of solitary
confinement in which convicts were placed for extended sentences. The prisoners were locked
in cramped, dark cells for twenty three hours a day. So miserable were the conditions that it was
not uncommon for the inmates to purposely injure themselves or make themselves ill in order to
get sent to a hospital. More often, the convicts went insane, dying a slow miserable death
(Belbenoit 171). Ironically, the location of these concrete cells on the island of Saint Joseph
were referred to as 0 , the title of one of Kafka’s novels

121
 Kafka’s literary representation is most likely an allusion to these French settlements.
Kafka spoke French, had relatives living in France, visited France himself, and even referred to
French political events in his diaries.75 Considering the fact that the French settlements were
functioning while Kafka was alive (and even after) and the fact that the atrocities performed at
the settlements and their consequential, daring escape attempts “made stories of world;wide
interest” (Allison;Booth 2), it is reasonable to assume that Franz Kafka most likely knew of the
colony and others similar.76 Moreover, the Officer in “In the Penal Colony” speaks French (and
refers to the official in charge as the “Commandant,” which is consistent with the Devil’s Island
narratives). The story is set on a tropical penal settlement that performs similar torturous acts as
those associated with the French settlements. So, it could be reasonably argued that Kafka’s
narrative was actually modeled after the infamous French colonies in French Guiana.
This historical placement is counter to the ordinary, critical position forwarded by many
scholars who contend that the narrative, like some of Kafka’s other works, somehow represent a
“journey back in time”  specifically, a mythical return to an “archaic” medieval paradigm
(Gailus 296). Or they contend that the colony’s “relation to Western Europe [is . . . ]
ambiguous,” mistakenly assuming that Kafka lived “in a modern era whose enlightened systems
of punishment [had . . . ] ostensibly done away with such inhumane acts” (Ballangee 203).
These assumptions are careless and historically incorrect. As noted, the penal colonies were

75
Kafka’s attitudes toward the French military are revealed in the flowing excerpt from a
letter to Milena, approximately July 14, 1922, in which he refers to the Bastille Day celebration:
It’s the French national holiday, below me troops are marching home from the
parade. It has . . . something grandiose; not the splendour, not the music, not the
marching, not the traditional Frenchman looking as though he had just escaped
from a (German) waxwork in red trousers, blue tunic, marching in front of his
division, calling from the depths: “All the same, you dumb, badgered, marching
creatures, trustful to the point of savagery, all the same we won’t desert you, not
even in your greatest follies, and least of all in them.” (98;99)
76
There are numerous captivity narratives about the French settlements, many of which
have been translated in English. These include ' (1938) and 0 ' @
# ( ) C 0 (1928).

122
functioning, possibly at their peak, during Kafka’s lifetime. There was widespread
condemnation of inhumane judicial practices, but these procedures were nevertheless extant.
Moreover, modern torture practices were quite different from those of the medieval era in
their complexities. Pieter Spierenburg, author of “The Body and the State: Early Modern
Europe” points out that the elaborate public executions of the sixteenth up to the nineteenth
centuries were marked by
the growth of the state and changing attitudes toward violence and suffering. In
mediaeval times, because state authority was fragmented and no superior source
of justice could assert itself, justice could take rather casual forms. From the
sixteenth century onward, however, large areas of Europe came under direct
political control, and public authority was established more firmly. (54)
Considering the complexities of Kafka’s mechanism and the setting, one could assume that the
practices are not a parcel of medieval torture. In this case, Kafka’s is not a literature of the
absurd in which time is fragmented or disconnected. Rather, the narrative is best situated at the
very precise moment of discursive rupture early in the twentieth century. Even though the
beginning of the nineteenth century marked the widespread disappearance of the “great spectacle
of physical punishment” (' 14) these practices were extant in the penal settlements well into
the twentieth century. This may appear to be contradictory at first glance, but the reality is that
two judicial realms (or paradigms) functioned in Europe simultaneously — one of which was
publicly and officially recognized and another which was forgotten, denied, or otherwise
expunged from the everyday perception of Enlightenment reason as if it was not happening (the
repressed Other). This double system is critical in understanding the text because it recognizes
the journey of the explorer not as a “passage from civilization to a more primitive society”
(Gailus 296), but as an inter;space between disciplinary modalities.
The identification of this disparity helps situate Kafka’s narrative within his historical
present, challenging the conventional interpretations of the story which attempt to categorize it
alongside some of his other more absurdist texts which are recognized for their surrealistic,
temporally dissonant, representations (i.e. “Metamorphosis,” “The Country Doctor,” “The
Judgment,” “A Report to an Academy,” and so forth). While the officer in “In the Penal
Colony” is certainly characterized as the typical alienated and anguished individual, the plot is a
logical, ordered narration of literal, and very real, ideological systems. In fact, one purpose of

123
the narrative is to reveal a necessary orderliness in the machinations of the penal strategy of the
colony. While the explorer (and the reader) may not agree with the disciplinary system, it is not
unreasonable. As noted in the introduction to this work, dramatic corporeal punishments were
extremely effective, and, correspondingly, the “singular apparatus” represented in “In the Penal
Colony” is methodical and philosophically grounded.
The literal parallels to the actual colonies, however interesting, are less important than the
historical fact that this type of punishment existed in the Western world well after the
Enlightenment, particularly in the French penal settlements outside of the initial reach of
reformist movements. This classical, judicial discourse was largely (and abruptly, according to
Foucault) reformed in the eighteenth and nineteenth centuries, but the actual opposition to the
physical punishments was “rather sporadic” (' 55). Although never mentioned in Foucault’s
analysis, the penal colonies are specific examples that support his recognition of corporal
discipline’s stubborn refusal to disappear. Even while the reformist movements were successful
in Europe, there were still pockets that functioned according to the older model based on
sovereign autonomy and torture. More importantly, the context of the French disciplinary
system and the more general context of European disciplinary practices in the late eighteenth to
twentieth centuries, provides a background from which the statements in the narrative can be
read literally, which is particularly unusual in Kafka studies.
Foucault’s inquiry into the history of discipline and torture attempts to explain this “long
survival of physical punishments” (' 55). Considering that these practices were so barbaric,
so irrational, he asks, why is it that they were extant for as long as they were? Foucault answers,
If torture was so strongly embedded in legal practice, it was because it revealed
truth and showed the operation of power. It assured the articulation of the written
on the oral, the secret on the public, the procedure of investigation on the
operation of the confession; it made it possible to reproduce the crime on the
visible body of the criminal. [ . . . . ] It also made the body of the condemned
man the place where the vengeance of the sovereign was applied, the anchoring
point for the manifestation of power, an opportunity of affirming the dissymmetry
of forces. (' 55)
It is from this premise that I approach Kafka’s story. The officer and the position from which he
spoke (the discourse which spoke through him) understood the apparatus as that which revealed

124
(or performed) truth by writing it on the body of the condemned, thus affirming the power of the
old commandant and the validity of his discourse. Approaching Kafka’s text through Foucault’s
understanding of disciplinary strategies presents an understanding of a repressive, penal modality
which is effective because it at once reveals, announces, and publishes (and performs) a judicial
truth which coincides with the exhibition of the potent power of the military regime from which
the discourse is uttered. In Kafka’s narrative, these legal “poetics” manifest in the documentary
field of the inscribed bodies. That is, truth is ritualistically produced — via the performative
articulation of the sovereign — and reproduced (documented) on the body, which together
circuitously affirm the truth and omnipotence of the old commandant and the officer’s discourse.

% 7 1# 3 " !#* " + " 1 %& # - #",

In an entry in Kafka’s journal dated July 29, 1917, Kafka writes, “The great days of the
court jesters are probably gone never to return. Everything points in another direction, it cannot
be denied. I at least have thoroughly delighted in the institution, even though it should now be
lost to mankind” (170). It is apparent that the author feels a similar curiosity about the
disappearing era of the public execution at a time when the European ideas of justice were
moving in another direction, migrating towards a bureaucratic disbursement of impotent power.
The infamous days of public execution had vanished. In the short story “In the Penal Colony,”
Kafka metaphorically delineates the last moment of the old judicial discourse, the discourse of
sovereign justice on the verge of self;destruction.
A Foucauldian approach to Kafka’s text first understands “justice” as a discourse
formation (a system of knowledge) which is limited, controlled, and institutionalized by systems
or relations of power, which, in turn, construct and define disciplined subjects. “Discourse”
refers to bodies of social knowledge, rather than specific linguistic or textual constructions.
Although verbal utterances are included as constituent or representative of the system of
knowledge, discourse is not limited to a linguistic representation. Rather, discourse is a general
term that can be grouped according to various systems of knowledge or individual disciplines 
discourse formations  such as psychiatry, law, medicine and so forth.77 Put another way,

77
McHoul states that readers have become accustomed to Anglo;American definitions of
the term, which is strictly different from that used in continental philosophy (discourse;as;

125
“discourse formations” are groups of statements controlled “by a general set of rules” ($& 115)
which govern “the way in which they are institutionalized, received, used, re;used, combined
together” ($& 115). 78 One of the main goals of a Foucauldian investigation is to isolate and
describe a discourse — to describe the underlying rules of formation, its emergence, the
institutional site from which it speaks, and the hierarchical position from which the speakers are
invested with authority to articulate claims to truth (to construct knowledge).
Monarchical justice, or what I refer to as E throughout this essay, is a
particular mode of disciplinary discourse based on autonomous, localized power, functioning on
and through the physical body. Outlined in Foucault’s ' , the classical
model of E is explained as an historical mode of social discipline which invests a
sovereign, a monarch in most cases, with complete, unquestionable judicial authority with the
exclusive power and right to punish  deferring to unlimited, sovereign authority to devise,
initiate, implement, maintain, and enforce all forms of law. This judicial strategy of the
eighteenth and late nineteenth centuries was a “political operation” that centered the power to
punish in an autonomous region of authority functioning according to an independent
arrangement of customs in which judicial procedure and the indisputable, repressive power of the
sovereign were interconnected. According to Foucault, this disciplinary system was, at once,
concerned with civil transgressions against the community for the sake of a common good, but it

knowledge). For example, differentiate between “formal,” “empirical” discourse (both of

which, for the most part, differ form Foucault’s usage). The former considers “variations of
formal linguistic methods of analysis” and “the social functions of language,” both using
“sample linguistic usage as data” (27). The latter considers “discourse” as “human
conversation” and analyzes the general rules which govern its common sense usage (29).
Subsequently, the authors claim that readers should abandon all prior notions of discourse in the
usual sense and “think of it as a totally different concept in a totally different field which just
happens to have the same as something we already know” (31).
78
The role of Foucault’s archeology is “to describe statements, to describe the enunciative
function of which they are the bearers, to analyze the conditions in which the function operates,
to cover the different domains that this function presupposes and the way in which those
domains are articulated” ($& 115).

126
was equally, if not more, concerned with the political display of uncompromising and merciless
power that ruled according to the fear produced by the exhibition of spectacular, theatrical
condemnation and its constituent public, torture (“ ”) that was “painful to a more or less
horrible degree” (' 33).
Far removed from the continent and its disciplinary reforms, the French penal settlements
adopted this disciplinary model, positioning a colony’s commandant in the role of the sovereign.
As the supreme commander of the colony, the commandant was the “man whose word [was . . . ]
the only law known” (Belbenoit 201). He was charged with ruling a group of exiled convicts
sentenced (to death) to live in a feral and perilous environment unsuitable for human existence.
He ruled over a population from whom all rights (both human and political) were stripped 
leaving only the literal surface of the already suffering, wretched body as the exclusive site of
punishment and the site at which justice was written. Subsequently, the penal colony was an
isolated exaggeration of the classical disciplinary model in which the commandant controlled the
inmates, specifically their bodies, to the point that they were said to perform like “ventriloquist’s
puppets, who grin or move when the master pulls the strings” (Allison;Booth 160).

* --!#*!#" .
Kafka’s reader must understand that the fictional penal project enforced a similar
systematic procedure of discipline — a discourse — which mimics the ideals of sovereign;based
justice. In fact, the rationality of the technology is what renders the strategy so very sinister. In
Kafka’s fictional colony, the recently deceased old commandant was the paragon of power 
the “figure par excellence of the sovereign” (Gailus 301). Kafka describes the scope of the old
commandant’s position as being that of “a soldier, a judge, an engineer, a chemist, and
draftsman” who single;handedly developed and “perfected” an institutionalized, “self;contained”
system of military justice within the confines of the colony ( 0 197, 193).79 As part of his
legacy, the old commandant left behind his notes and “pertinent designs” that explain the
complex operational settings of the apparatus and detail the various, prescribed “artistic” scripts
which correspond to the colony’s laws or commandments, conceivably establishing a domain of
rules and their consequent punishments which functioned according to precise laws, procedures

79
This description mimics Kurtz’s position in Conrad’s ! '

127
and rituals — disciplinary techniques which were so well established that, even after the old
commandant’s death, it was understood that it would take “his successor many years to change
anything, even if he had a thousand plans in mind” ( 0 193). In other words, the writings
outlined a specific discourse by which truth, justice, and punishments were determined.
The officer is the disciple of the old commandant and was originally involved in the
system’s testing and implementation, and has subsequently become the keeper and chief
advocate of the discourse, earnestly protecting the writings (the discourse) in a leather portfolio
which he carries in his breast pocket. The texts are his “most precious possessions” ( 0 203)
and are handled as if they are sacred scrolls. (The officer even insists on washing his hands
before handling the documents.) Accordingly, it is the portfolio to which the officer refers when
faced with the obvious disapproval of the explorer at the site of the apparatus. In an effort to
explain or justify the system to the explorer so that he will “be able to see everything clearly”
( 0 203), the officer shows the documents to the explorer, but he will not let the explorer
actually handle the sacred documents. Instead, he holds them up while the explorer
unsuccessfully tries to make sense of them. However, the only thing the explorer sees is “a
crisscross of labyrinthine line covering the paper so densely that the blank gaps were barely
discernible” ( 0 203). The officer laughingly responds to the explorer’s difficulties by
acknowledging the inherent complexities of the discourse: “It’s no calligraphy for
schoolchildren. It has to be studied for a long time” ( 0 203). In other words, the formation or
schema in which the officer is immersed is guarded, held to be unquestionably sacred, and
thought to be absolute truth.
Although, the discourse  the legal code  is undecipherable to the explorer, it speaks
to the reader and serves a specific function in the narrative. The shocking and disgusting
procedure first appears to the reader as the purely individual, diabolical, motivations of a sadistic
madman. This notion, however, is readily dismantled. The “intricate,” complexities of the
documents reveal that the torture is not a singular, impulsive act, but is, rather, a serious,
complex protocol of justice, which functions according to its own set of rules or its own logic,
establishing and controlling the concepts and objects of justice, discipline, and punishment. At
the same time, the explorer’s inability to read or decode the text is illustrative of the competing
otherness of the discourse formations. The traveler (like the reader) cannot “understand” the
discourse because he is geographically and intellectually outside of it.

128
 Furthermore, this pre;reformist, independent, truth;making system, according to the
officer, has an advantage over other reformed disciplinary systems in other parts of the world
(i.e. the reformed product of the Enlightenment of which the explorer is a representative) because
these “other” courts “consist of several opinions and have higher courts to scrutinize them” (3).
In other words, the reformed system’s power to judge is diffused amid various subgroups (i.e.
upper and lower courts) or other, competing discourse formations (i.e. psychology, medicine),
thus vitiating autonomous power and always subjecting themselves to exterior judgment. In the
eyes of the officer, the reformed “other” courts of the “homeland” had been stripped of their
truth making capabilities and their autonomous power dispersed (i.e. the power to judge becomes
the domain of a multiple, dispersed discourse formations).

!*!" # % &! #
Illustrative of the logic and inherent order of the execution, the performance is governed
by the restricted, controlled application of pain. Foucault’s history explains that within the
model of sovereign justice, there “is a legal code of pain” from which “punishment does not fall
upon the body indiscriminately or equally; it is calculated according to detailed rules” (' 34).
That is, torture relies not only on a quantity of pain, but, also the quality of the pain: controlled,
administered according to the gravity of the offense — “a calculated gradation of pain” (' 33).
Similarly, if we look at Kafka’s electric apparatus, we notice that it automatically
imposes the judgment and systematically executes a slow and painful death, each sentence
corresponding with specific settings of the apparatus, which are adjusted according to the
specifics of the crime. The officer explains:
Once the man is strapped tight, the bed is set in motion. It quivers in tiny, very
rapid twitches, both sideways and up and down. You must have seen similar
apparatus in sanitariums; except that in our bed all the movements are
You see, they have to be to the motions of the
harrow. ( 0 196, my italics)
In other words, the punishment in this modality represents a systematic articulation of an
apparently logical system that is implemented, enforced, affirmed, and reaffirmed by a
documented system of ritualized practices. As Foucault explains, the system of classical,
monarchical justice “is a technique; it is not an expression of lawless rage” and “not the

129
expression of a legal system driven to exasperation [ . . . ] forgetting its principles, losing all
restraint” (' 33, 34;35). Rather, it was an organized, precise ritual that maintained political
power by means of methodical, systematic punishment and terror which functioned according to
specific criteria.

#* -# * !#
It is from within a seemingly sacred order that the officer speaks (or it speaks him) and
judges. (Circuitously, it will eventually judge him as well.) He has been “appointed judge”; or,
more specifically, he has literally assumed the positions of judge, jury, and executioner ( 0
199), and as such, he has sentenced a man to death for insubordination and assaulting a military
captain.
Ironically, the condemned man of whose execution the explorer is to witness at the
colony is not a convict; he is a soldier. This seems odd to the reader (actually, it is usually
missed), but it calls attention to the fact that the actual living conditions within such colonies
were often “unbearably miserable,” even for the soldiers and the administration (Allison;Booth
106). Considering that life at the colony was a “horror for them” also, it was not uncommon for
the soldiers or the civilian workers to “rebel against the strict discipline” of the military regiment,
nor was it unusual “for soldiers to attempt escape from the penal colonies,” thus becoming
subject to the same torture and punishment as the actual inmates (Allison;Booth 106). Allsion;
Booth, for example, recounts the escape attempt by two soldiers from St. Laurent, a French penal
colony in New Guiana, by traversing the dangerous jungle, actually “relying on their uniforms to
obtain hospitality from the natives,” but one of the tribes turned against them because of the
mistreatment of natives by the French military (106). Subsequently, the two men were terribly
beaten (106).
In Kafka’s narrative, the condemned man’s offense was also one of rebellion  the
failure to accomplish the ridiculous task of waking each hour and saluting the military captain’s
door. When found asleep by the captain (as if it were a test), the soldier was whipped (a favorite
punishment of Kafka’s) across the face, but “[i]nstead of getting up and begging pardon, the
[condemned] man caught hold of his master’s legs, shook him and cried: ‘Throw that whip away
or I’ll eat you alive’” ( 0 199). This brutish — seemingly animalistic — bizarre behavior is
consistent with a man faced with the menacing living, working, disciplinary conditions at the

130
colony, on the verge of insanity. His dirty, worn appearance and insensitive, detached character
are representative of a man or convict who has been physically and psychologically broken.
Kafka’s description is similar to Allison;Booth’s account which states, “Once in the grip of this
hell;hole the smile vanishes from their faces, and in its place comes a dull vacant stare” (60).
Described as “an obtuse person with a broad mouth and seedy hair and face,” the condemned
man faces his execution with “sleepy obstinacy” ( 0 121), signaling a haunting, psychological
retreat. Emphasizing the fact that the inmates of the colony were treated not like humans, but
like dangerous, repulsive animals  caged and ill;treated, Kafka describes the condemned man
as “so doglike and cringing” that the executioners “could, no doubt, have let him run free over
the slopes and would have only needed to whistle for him to come at the beginning of the
execution” ( 0 191).
Compare this, for example, with following depiction of the island’s inhabitants from
Allison;Booth’s captivity narrative ' @ # :
Like a once playful dog, the man has been cowed by continual ill treatment. He
has become submissive and quiet. He has ceased to play. He is lethargic, his
finer senses are dulled, he is no longer capable of individual action or
responsibility. It is as if his soul had been wrenched from his bleeding body and
left to dangle before his eyes, and he shorn of his strength so that he may not
reach up and cut it down. (75)
Ironically, the same torturous practices that render the condemned mad, also render the captors
as uncivilized and inhumane in the eyes of the explorer and, more interestingly, the reader.
To the reader, the crime of the condemned man seems to be a relatively insignificant
transgression (like Joseph K.’s) for which execution seems severe and disproportionate. But an
understanding of the classical discourse here described explains it is as a serious offense. Much
like the way Hester Prynne’s transgression in the * % now appears common and
disproportionate to the punishment, the condemned man’s sentence seems harsh. However, it
must be understood in terms of the prevalent discourse. The refusal to obey orders and the
physical attack on an agent of the sovereign (the captain), together, constitute an insult and
considerable challenge to sovereign power. The criminal act is not considered as simply a
transgression against a particular law or person in the community; rather, in each transgression
the offender “attacked the very principle and physical person of the prince” (' 54). In even

131
the simplest crime, there was always an element that was considered as an attack on the crown,
and the condemned man’s transgression was, in effect, an attack on the prince (the commandant)
 both physically and politically. Hence, when the condemned man actually struck and
insulted the crown’s representative, the “captain,” it was at once a disrespectful act, but also
more than that; it is an offense to the powers that be, signifying a direct challenge to this power
and a blatant insult to the symbolic crown’s authority, an insult that demanded an unmitigated
response.

& " ! " !

Subsequently, the purpose of the punishment in this model is twofold. On one hand, it is
a punishment for the offence, but it was also much more. It was also revenge and the occasion
to reaffirm the crown’s remarkable potency. Subsequently, Kafka’s fictional execution must
also be understood as a “political ritual” (' 47) with a purpose other than punishing the crime
that had been committed against a law;abiding community. As with the absence of the “other”
courts in the penal colony, the sovereign was, literally, the law, and, as such, a transgression was
considered as a direct offense to the sovereign: “it attacks him personally” (' 47). Thus, the
attack on the captain is considered an act of war — a challenge that must be addressed in order to
maintain the effectiveness of the rule. Foucault explains the politico;judicial process as follows:
Punishment [ . . . ] cannot be identified with or even measured by the redress of
the injury; in punishment, there must always be a portion that belongs to the
prince [which . . . ] requires redress for the injury that has been done to his
kingdom (as an element of disorder and as an example given to others, this
considerable injury is out of all proportion to that which has been committed upon
a private individual); but it also requires that the king take revenge for an affront
to his very person. (' 48)
Consequently, the condemned man’s punishment is also a reply to the attack on the captain,
which is answered in the form of a military ceremony of triumph  a ritualistic, military tribute
to sovereign power in which the execution represents a merciless display of force. Foucault
writes, “The public execution, however hasty and everyday, belongs to a whole series of great
rituals in which power is eclipsed and restored (coronation, entry of the king into a conquered
city, the submission of rebellious subjects)” (' 48). The violence of the original transgression

132
has to be answered with far greater, dramatic violence in order to repair the perceived damage to
the political order. In other words, there is an excess of punishment, which sets out to
reestablish the power of the crown that was believed to be temporarily damaged via a logic and
ceremony of violence. Moreover, the public display must be severe because the goal of the
execution is, in part, a demonstration of the sovereign’s potency — to illustrate the “dissymmetry
between the subject who has dared to violate the law and the all;powerful sovereign who
displays his strength” (' 49). This dissymmetry carries over into the punishment. It must
illustrate the gap between the power of those other than the sovereign and the ruler himself.
Moreover, the nature of the punishment must be more extreme, more fierce, more grotesque than
the crime that was committed; the function of the punishment was a reply to the transgression
that sough to “master it [the crime], to overcome it by an excess that annulled it” (56). In other
words, the punishment must be far more extreme than the crime. In order to rule effectively and
without any question as to the supreme, unquestionable force of the sovereign, the punishment
must be exacted in spectacular and excessive ritual which restores the pride and power of the
King: it is a moment in which the monarchy is restored, “manifesting it in it most spectacular”
(48). In other words, the challenge to sovereign power necessitates a magnificent, memorable,
and excessive show of force in order to reestablish the overwhelming, fierceness of the sovereign
and, correspondingly, negate any doubt of its awesomeness: “It restores that sovereignty by
manifesting it at its most spectacular” (' 48). Moreover, this constituent of revenge must be
spectacular in order to demonstrate the extreme “dissymmetry between the subject who has
dared to violate the law and the all powerful sovereign who displays his strength” (' 49).
Foucault adds that “this meticulous ceremonial was not only legal, but explicitly
military” (' 50). The court of the sovereign is represented as an armed threatening presence:
“The sword that punished the guilty was also the sword that destroyed enemies” (' 50). The
same can be said for Kafka’s colony which functioned according to a “stringent military
discipline” ( 0 200). The officer is dressed in full military garb, a “tight, full;dress tunic,
which was weighed down with epaulets and loaded with piping,” (194) even though the
“uniforms were far too heavy for the tropics” ( 0 192), and he proudly states that the uniform
honors the “homeland” ( 0 192). Little has been said about the uniforms in Kafka’s narrative,
but it is important to note that the officer claims that “no high official dared to be absent”
recognizing the importance of adding to the public display of military force, necessary to prevent

133
any outbursts of sympathy that would disrupt the machinations of justice, and it re;emphasizes
the literal allusion to the French colonies.
In the event of the worst transgressions, this retribution manifested as the gruesome,
exaggerated punishment and complete destruction of the body. Foucault points out that the
screams and visible effects of victim’s pain is not a “shameful side;effect” but are, rather, the
signs of the sovereign’s triumph (' 34), which also explains why the tortures continue even
after the victim has died: “Justice pursues the body beyond all possible pain” (' 34).
Consequently, the punishment was always dramatically disproportionate with elements of
“imbalance and of excess” as an “affirmation of power and of its intrinsic superiority” (' 49).
In effect, the punishment acted out the destruction of the adversary on the body of the accused.
“The ceremony of punishment, then, is an exercise of ‘terror’” (' 49). But, Foucault also
points out that the modernist interpretation of the extreme punishment claims that is was to set an
example for the community incorrectly assumes that the punishment centered around justice,
when in fact, its role was the reinstitution of power: “The public execution did not re;establish
justice; it reactivated power” (49). Consequently, the power of the sovereign is publicly
displayed, not as “an economy of example,” but as part of a “policy of terror: to make everyone
aware, through the body of the criminal, of the unrestrained presence of the sovereign” (' 49).
The public was required in order that they witness the awesome wrath of the sovereign. In other
words, the publicness of the punishment made others aware that the slightest transgression will
be hastily punished.

+ % 7 * #" !"" ,) > " > !#*

The unmitigated response to the condemned man’s transgression included immediate
sentencing and the denial of due process. At the site of the execution, the first question that
comes to the explorer, perhaps inspired by the dumb, seemingly oblivious reaction of the
pathetic;looking condemned man, is “Does he know his judgment?” to which the officer
responds “No” and continues his explanation of the machine as if the matter was unimportant
( 0 198). Seemingly stunned by the officer’s abrupt nonchalance, the explorer asks again, and,
again the officer responds, “No,” offering the following explanation:
‘It would be of no use to him informing him. He’s going to experience it on his
body anyway.’

134
 The traveler wanted to hold his tongue, but he felt the condemned man
staring at him: he seemed to be asking whether the traveler could approve of the
described procedure. That was why the traveler [ . . . ] asked: ‘But he does know
that he has been condemned?’
‘No again,’ said the officer smiling at the traveler as if expecting further
bizarre revelations from him.
‘No,’ said the traveler, rubbing his forehead. ‘Then the man doesn’t know
yet how his defense was received?’
‘He had no opportunity to defend himself,’ said the officer, looking
sideways as if talking to himself and not caring to embarrass the traveler by
telling him about these self;evident matters.’ ( 0 198)
These “self;evident matters” are important in that the statement illustrates the commitment by
the officer and his immersion within this particular disciplinary framework. The officer’s
response to the questions not only informs the shocked explorer of the colony’s judicial process,
but it also reveals 1) the surreptitious nature of the practice, 2) the exclusive, “privileged”
position within this “self;evident” discourse from which the officer speaks, and 3) the physicality
of the inscription.

!#* #% #
Within the parameters of this modality, the prisoner’s judgment was determined in
private, absent of any interrogation, confession, or trial, and the accused played absolutely no
role in determining the accuracy, truth, or circumstances of the accusation, charge, or
punishment. Although this strikes the explorer (and the reader) as peculiar, again, it must be
understood that it would not be so within the confines of this “other” discourse. Foucault’s
analysis of sovereign justice reveals that this concealment of the procedure was not entirely
unusual. In ' , for example, Foucault presents an explanation of the
classical discourse formation as that in which
the entire criminal procedure, right up to the sentence, remained secret: that is to
say, opaque, not only to the public but also to the accused himself. It took place
without him, or at least without his having any knowledge either of the charges or
the evidence. (' 35)

135
(This also proves relevant in in that the attic courts function within a similar
paradigm.) Those accused were not informed of the specifics of their cases, in part, because in
“the order of criminal justice, knowledge was the absolute privilege of the prosecution [ . . . ].
The magistrate, for his part, had the right to accept anonymous denunciations, to conceal from
the accused the nature of the action ” (' 35). In other words, the information about the case
was of no use to the defendant because in the end, the judgment and the truth of the offense was
the exclusive domain of the sovereign.
Historically, part of the private procedure included the forced elicitation of a confession.
Considering the confession as the most condemning and therefore most valuable type of
evidence, the sovereign ruler superficially bestowed the prisoner’s voice with truth making
powers (considering that it articulated a suitable statement). Consequently, the sovereign often
relied upon torture to extract a confession from the accused, which would, in turn, support the
judgment that was seemingly already determined; it was even acceptable to question the accused
“with a view to catching him out, to use insinuations” (' 35). In other words, the confession
was indisputable self;incrimination, regardless of whatever secret, cruel methods were employed
in the process of its origin, rendering guilt beyond doubt. The accused would be tortured until a
satisfactory confession was achieved that would acceptably implicate the prisoner. It would
then be made public, thus confirming that the accused indeed committed the said offence.
Hence, the announcement of the confession justified the sentence, and more importantly, it
affirmed the allegations of the crown and (re)affirmed its damaged credibility.80
In Kafka’s narrative, however, the author departs slightly from the classical model and its
typical process of determining the truth of an alleged transgression. In Kafka’s story the
preliminary interrogation and corresponding torture were absent, further exaggerating (or de;
familiarizing) the concealment of the proceedings. The condemned man’s voice is silenced —
actually refused the possibility of a confession. (Even the expression of pain is silenced by

80
See Chapter Four for more about the characteristics of confession in the classical
model.

136
stuffing his mouth with a felt gag during the execution).81 Although a confession was usually
sought in these cases, the absent confession would not be altogether unusual, because, as
Foucault explains, in certain cases, the authorities would reserve the right to bypass the
interrogation for fear that the evidence would not be altogether satisfactory to support the
judgment. In such a case, the offender could not be punished (or executed) because of what
would be considered a lack of substantial evidence. Hence, it was understood that in certain
cases where there was ostensible, sufficient evidence “one should not ‘leave the conviction to
chance and to the outcome of a provisional interrogation that often ’” ( ' 41,
my italics).
In other words, an interrogation of the condemned man, would have led to nothing
because the determination of guilt had already been made by virtue of the site from which the
accusation was uttered. The officer explains the underlying rule that governs the judicial
apparatus as follows: “This is how things stand. [ . . . ] I have been appointed judge here in the
colony. [ . . . ] The principle on which I base my decisions is: guilt is always beyond doubt”
( 0 199). This is not to say that there is any type of predetermined or “a priori character of the
guilt” or essentialist notions of guilt as many others have mistakenly assumed, erroneously
reading Kafka’s personal (religious) struggles into the narrative (Gailus 297). Rather, truth of
judicial matters is unquestionable when it is articulated from a position within the hierarchy.
The passage implies that guilt, by whatever erroneous, faulty, or immoral
judicial process, is unquestionable, or more specifically incontestable. The judgment becomes
unequivocal truth at the moment of its articulation by the agent of the sovereign, which, in this
case is the military captain, a member and agent within this particular discourse formation. As a
functionary within the hierarchy, the captain’s word is beyond reproach, thus compelling the
officer to base his decision on the principle of unmistakable guilt. Kafka explains the seemingly
Nietzschean as follows: “The captain came to see me one hour ago: I wrote down his
statement and then appended the judgment. Next I had the man put in chains. It was all quite

81
For an interesting article on the representation of silence in “In the Penal Colony,” see
Danielle Allen’s article “Sounding Silence” in which she claims, “The greatest artfulness in the
apparatus lies in precisely its mechanisms for producing silence” (326).

137
simple” (200).82 In effect, his language “constructs,” “appends,” or otherwise authors, a
narrative of the transgression’s circumstances and the judgment of the same within the
boundaries of the discourse forwarded by of the old commandant. That is, the officer attains his
power from the discourse and because of officer’s positions within the judicial hierarchy —
interim sovereign, the site of an armed, threatening presence — he is (author)ized to make such
claims to truth, authorized to judge and punish, authorized to determine the condemned man’s
right to live or die.
It is from a strikingly similar premise that the officer applies his hasty judgment in the
short story. When asked about the lack of due process, the officer explains, “Had I first
summoned the [condemned man], it would have but confusion. He
would have lied, and once I had exposed his lies, he would have piled on new lies and so forth”
( 0 200, my italics). Under different conditions, it seems that the man could lie or resist the
accusations that would unnecessarily complicate or even thwart the judicial process. Thus,
foregoing the interrogation allows the officer to proudly claim, “Now I have got him and I’ll
never let him go” ( 0 200), and, by circumventing the interrogation and moving directly to the
sentence, the officer is able to ensure that the execution will take place without unnecessary
delay.

+ " ! #1 % " *,
In fact, the officer’s pronouncement actually produces or constructs a version of truth
(knowledge) that is consistent with the repressive discourse of the sovereign. That is, the
discourse of the sovereign establishes a judicial hierarchy and set of rules and conditions from
which the officer speaks and controls what can be said and what cannot be said: it determines
which statements, or judicial assertions, could be taken seriously.
Each society has its régime of truth, its ‘general politics’ of truth: that is, the types
of discourse which it accepts and makes function as true; the mechanisms and
instances which enable one to distinguish true and false statements, the means of
which each is sanctioned; the techniques and procedures accorded value in the

82
Just as Joseph K. does not know the reasons for his arrest (and whose body is also
eventually inscribed), the condemned man here does not know the particulars of his bleak
situation.

138
 acquisition of truth; the status of those who are charged with saying what counts
as true. ( & 131)
Reciprocally, the statements actually produced (the “enunciations”) continually affirm and
reaffirm the power of the discourse and the authority of its speakers; they produce and reproduce
power. Those with power (author)ize or legitimize a @ validity in specific domains
(i.e. medicine, psychiatry, or law). Whereas Foucault labels these utterances as “statements,”
Dryfus and Rabinow translate such mediated statements as “serious speech acts” which
determine, via a self;imposed, rule;governed system, that which can be thought of as truth and
which determine who can make such claims (Dryfus 47, $& 99).83 Thus, within the regimes of
power, the formative instrument of knowledge and truth is discourse: “it is in discourse
[formations] that power and knowledge are joined together” (!* 100). Challenging the
assumption that power must be suspended to somehow get at an “essential” or transcendental
truth, Foucault asserts that knowledge and power are mutually generative; that is, power and
knowledge are circuitous, reciprocally generating and sustaining one other: “We should admit [ .
. ] that power and knowledge directly imply one another; that there is no power relation without
the correlative constitution of a field of knowledge, nor any knowledge that does not presuppose
and constitute at the same time power relations” (' 27;28). Hence, Foucault inverts the
suggestion that knowledge is a condition of or somehow precipitates power. Rather, power
creates, determines, employs, and sustains knowledge; it determines what forms of knowledge
are acceptable and the uses to which it will be put. “‘Truth’ is linked in a circular relation with
systems of power which produce and sustain it” ( & 133).
In the application to Kafka’s text, it is necessary that the reader recognize that the
officer’s “enunciation” does more than judge; it justice.84 In J.L. Austin’s terms, his
utterance rather than just (235). Austin himself compares his
new self;described “ugly word” to the legal use of “operative” which implies a legal instrument

83
For example, in $ & , Foucault uses the field of medicine as an
example: “Medical statements cannot come from anybody; their value, efficacy, even their
therapeutic powers, and, generally speaking, their existence as medical statements cannot be
disassociated from the statutorily defined person who has the right to make them” ($& 51).
84
The officer even refers to the execution as a “performance” ( 0 201).

139
which performs a legal act. Thus, the officer is “he who knows,” or he whose discourse would,
in Lyotard’s terms, be self;legitimating knowledge; the truth “coincides with its enunciation”
(Lyotard 9). In other words, the judgment does not refer to any transcendental or divine notion
of truth, but, rather, the officer’s language presents an “order of things,” a way of organizing the
world and its truths, a schema.85 The rule;governed system “depends upon the fact that
statements are assumed to be meaningful by the users,” which in this case is ensured by the
presence of force, (Dryfus 54), not any transcendental referent. In other words, the consequence
of the written judgment is, like the confession, the construction of (a version of) truth; it is a
political truth spoken from a void in which transcendental justification is not required. 86

85
When approaching “truth” here in terms of Foucault’s understanding of discourse and
its relation to power, it becomes clear that the discourse of the commandant restricts what the
officer can impose; the sentences are issued in accordance with the designs. The officer is
limited by the parameters of the discourse forwarded by the sovereign.
86
Arnold Weinstein notes, “The written word, as Kafka well knew, has long been central
to the transmission of truth; the German word for “writing” is ‘* -’ and Kafka significantly
noted that is also stands for scriptures, for holy books” (24). Weinstein adds that many have
been drawn to a spiritual interpretation of the text because of these meanings, but he also adds
that “if we apply to it the more modern sense of ‘language,’ ‘discourse,’ or ‘I ,’ then we
see the larger spectrum of communicative acts which make up and form the meaning of the tale”
(24).

140
 ' &
' ( &
+ ' & (,

Many critics have argued that by operating on the body, Kafka’s mechanical inscription
somehow unifies the written word with a primordial, essential truth, as if the essence of
something like E functions in a Platonic realm beyond the limitations of language. Carrie
L. Asman, for example, writes, “Separated from the body and the world of natural objects, the
word returns to its point of origin as barely legible ornamental script that is painfully reinscribed
on the body as the disfiguring judgment leveled by a higher order” (81). She claims that the
“conventional order of signification” is reversed in that the “meaning returns to the body” (81).
Similarly, Weinstein claims, “the verbal message can achieve a magic oneness with its referent,
only if it is encoded in our flesh” (26), and Lukács posits the idea that Kafka’s “allegorical
character” essentially “points to a transcendent reality” (Qtd. in Kusak 98). Echoing Asman,
Lukács, and Weinstein, Gailus writes,
Kafka’s law machine seeks the achievement of pure meaning. [ . . . . ] The
machine does not merely apply the Law to, or inscribe it, the body. Rather,
it passes the body by means of registering its letters directly on the
prisoner’s nervous system. For justice to be revealed, the Law must be
deciphered through the pain of a body subjected to mechanical torture. (297, 298).
In these cases, it is supposed that enlightenment of the condemned occurs because the bodies are
able to realize the transcendental meaning through the body’s pain. Although this seems to fit
easily with Kafka’s biography and religious yearnings, it is misguided and misinformed about
Kafka’s reality.

141
 Kafka’s narrative actually illustrates the self;referential nature of language which (similar
to Foucault’s work) posits E as an historical construct functioning exclusively within the
realm of discourse (not out there somewhere). That is, the machine’s script in Kafka’s narrative
can only refer back to the source of power and knowledge that fabricated its being and rendered
its articulation possible in the first place. In this case, the inscription marks the body, referring
solely to the power of the sovereign, not any type of absolute, judicial truth. The law, its
meaning, and its truthfulness are determined exclusively by those who control and fabricate its
discourse. Justice, in “In the Penal Colony,” is not a transcendental concept supernaturally
accessible via the body. Rather, justice is actually produced and the meaning is created
(constructed) by its articulation (via performance) on the body.87
A Foucauldian analysis of discourse recognizes that discursive enunciations are
intimately bound to power;invested, non;discursive practices — a context of rituals or
ceremonies which are necessary to affirm and reaffirm a discourse as valid. The acceptance or
validity of the statement relies upon that which is outside language. In this case, the modality of
E relies upon the formation of a dramatic ritual, a “liturgy of punishment,” in
which the body was attacked, marked, and ceremoniously destroyed in a public exhibition of
strength (' 34). Although at once serving as a demonstration of sovereign power, the ritual
also affirmed the truth;making power of the sovereign by producing a collection of texts — an
excess of signs — transmitted, published, or otherwise written on the body.
Approaching the body as that which can be known, manipulated, made useful and
disciplined, Foucault understands the materiality of the body as an historically malleable site at
which power and knowledge meet. Kafka’s text is a representation of this history which
conceptualizes the body as a territorialized domain procured by power relations on which

87
Gailus points out, “Kafka’s story describes a mechanism that is at once very similar
and very different” to Althusser’s idea of interpellation. “As with Althusser, it stages a scene of
ideological recognition: the moment of transfiguration is the one that the prisoner deciphers, and
recognizes himself in, the Law that is being inscribed onto his body. But whereas in Althusser
the drama of interpellation takes place on the level of the psyche, this process now works directly
on and through the body. Interpellation, in Kafka, occurs through the somatization of ideology;
it is a mechanical operation through which the Symbolic is carved into the subject’s body” (299).

142
various, historical forms of knowledge are inscribed ( !). The body is a “technico;political”
object that can be used, formed, and put into service of the political and economic authority,
becoming the “object and target of power”  the site at which power is exercised or performed
(' 136). Specifically, in ' , Foucault considers the body as a linguistically
mediated surface on which various, competing modalities of justice are written, asserting that
judicial “power relations have an immediate hold upon it [the body]; they invest it, mark it, train
it, torture it, force it to carry out tasks, to perform ceremonies, to emit signs” (' 25). Here
Foucault’s interest in power and the materiality of the body, particularly his interest in the body
as signifier of judicial knowledge, becomes particularly interesting in the consideration of the
site or object of disciplinary practices in Kafka’s penal colony in which the tortured body is the
surface of the judicial articulation, the object which affirms the validity of the institutional
structure, the site at which the judgment and its truth are written — quite literally.
The marking of the body is part and parcel of a continuing truth;making ritual that
affirms and sustains the discourse of the sovereign (similar to the purpose of the interrogation
and forced confession). In other words, discourse is not only produced, affirmed, and controlled
by structural limitations of what can be thought and said (enunciations); there are also power
related non;discursive practices (a context of rituals or ceremonies) which affirm and reaffirm
the discourse as valid. Historically, the physical marking of the execution or torture were also
considered as signs (as a text) of the offense. Foucualt writes, “A successful public execution
justified justice, in that it published the truth of the crime in the very body of the man to be
executed” (' 44). The torture “must mark the victim: it is intended, either by the scar that it
leaves on the body, or by the spectacle that accompanies it, to brand the victim with infamy; [ . . .
] it traces around, or, rather, on the very body of the condemned man signs that must not be
effaced” (' 34).
This understanding of the complementary relation between the body, power, knowledge,
and truth can help clarify the puzzling role of Kafka’s writing machine. Simply put, Kafka’s
machine condenses the necessary, intricate elements of the public ritual into a simple
performance and conflates the signs associated with the articulation of the law, its transgression,
the guilt of the condemned, and the power of the sovereign into a single sign: the text / wound.
Like Foucault, Kafka represents the punished body as that which is marked –; invested with a
series of complex, even condensed, but nevertheless decipherable signs, defined within a

143
network of discourse and ritual that, together, reciprocally affirm its own presentation of truth.
Thus, it is helpful, here, to briefly examine Kafka’s fiction in terms of a semiotics of torture
outlined by Foucault in ' , which I have here paraphrased as 4
, , , , and .

" 7 ! *
As mentioned previously, Foucault explains that, within the classical model, judicial
investigations, proceedings, and subsequent judgments were always withheld from the accused
and concluded in secret. If the judges did happen to meet with the accused, it was often with
sole the purpose of physically extracting a confession that would support the already determined
judicial decision. Otherwise, it was common for accused to first learn of the sentence and the
accusations at the moment of the public ceremony. Considering the protocol of secrecy and the
localization of judicial truth, it is not, then, as shocking as it first appears that the condemned
man in Kafka’s story is refused due process. The accusation is announced at the time of the
execution by gouging it into the skin of the accused. Consider the officer’s statement that
explains the rationale of its absence: “It would be of no use to him informing him. He’s going
to experience [or learn]88 it on his body anyway” ( 0 198). The man will supposedly learn
what has been previously withheld — the judgment and the offence, the Law. Although, he may
not understand the specifics of the accusation, the text / wound in this first place articulates the
power of the discourse. Once the torture ceremony begins, the accused suffers the imaginable
pain, and, according to the officer, there is also a moment of enlightenment when the condemned
person recognizes that death is eminent and that “justice” is being done. Kafka writes, “And
how quiet the man becomes at the end of the sixth hour! Even the stupidest man is now
enlightened. It starts around the eyes. From there it spreads out. A look that might lure you
into joining him under the harrow. Nothing else happens, the man simply begins to decipher the
writing” ( 0 205). Thus, the accused somatically learns of the accusations, and, more
poignantly, he becomes aware of the “truth” of the awesome wrath and power of the
commandant’s judicial power.

88
It is interesting here that Muir translates the text as “learn” while “Neugroschel”
translates it as “experience.”

144
 ## # - #"
Furthermore, the theatrical scene leading up to the torture is one at which the criminal
publicly announces the offense. Constituent of this type of punishment was its role in publicly
announcing the nature of the crime: “it must bring it to light by confessions, statements,
inscriptions that make it public” (DP 56). In this case, Kafka’s body makes the statement. The
body is given voice. Whereas the accused was often made to participate in a public procession,
wearing a placard that publicly announced the crime, halting “at various crossroads” and church
fronts for very public speeches, acknowledging the truth of his delinquency and “attesting to the
truth of what he had been charged with” (' 43), the placard is replaced in Kafka’s text with a
form of public branding. The brand /wound/ inscription functions the same as the placard: “It
was the task of the guilty man to bear openly his condemnation and the truth of the crime that he
had committed. His body displayed, exhibited in procession, tortured, served as the public
support of a procedure that had hitherto remained in the shade; in him, on him, the sentence had
to be legible for all” (' 43). In other words, the body’s very public association with the
written account of the offense provided the necessary knowledge or (re)presentation of the facts
necessary in order to secure the community’s support, thus reaffirming the legitimacy of the
disciplinary modality.
Kafka replaces the placard with the literal, physical inscription, highlighting (or de;
familiarizing) the body’s role in the public declaration of crime and punishment. While the
condemned learns of the accusations on his body, the corporeal inscription also immediately
announces it in the necessarily public gathering. For example, the officer tells the explorer of
the “wonderful times” in the history of the colony when people dared not be absent and would
actually huddle around the machine for the best possible view of the procedure. The harrow,
after all, was made of glass, and equipped with jets of water to displace the blood so that those in
attendance could see the “inscription emerging on the body” (201). Consequently, the body of
the condemned, in place of the placard, announces the cruelties committed by the accused in
order to garner public support for and justify the punishment.

& !" #
After the announcement, the nature of the offense was traditionally made permanent by
marking the body of the accused, a process by which the wound permanently signified that

145
justice was executed, thus giving finality to the proceedings. In Foucault’s words, “A successful
public execution justified justice, in that it published the truth of the crime in the very body of
the man to be executed” (' 44). While the placard or public speeches announced the offense,
the corresponding torture was designed as a permanent record, sign, or publication written on the
body of the accused by marking, wounding, scarring, or even destroying the body.89 The
torture, according to Foucault, “brand[s] the victim with infamy; [ . . . ] it " ! around, or,
rather, on the very body of the condemned man signs that must not be effaced” (' 34, my
bold).
In Kafka’s work, the body is certainly destroyed, emphasizing the power of the old
commandant and the old discourse, but there is more. The wound is also a text. It is a mark,
but it is also a sign. The text / wound functions as a condensed signifier in which two signs are
merged, creating an entire economy of publicity in which complexly entangled goals associated
with the punishment (to announce, publish, affirm and so forth) are realized. The wound / text
publishes the nature of the transgression, but it also publishes the law.
Reformist movements adopted a similar strategy as its sovereign;based predecessor in its
efforts to link the punishment with the crime, but it sought a more transparent representation of
the law and its corresponding punishment. This strategy attempted to emphasize, code, and link
the punishments with the crimes in such a way that the public was able to link the transgression
with its greater disadvantage. Unlike sovereign rule, the reformist strategy desired a more
widely understood system of illegalities in which the laws were more accessible, unlike the
former which functioned under a veil of secrecy. The modality of sovereign;based justice often
withheld the intricacies of the actual law; that is, the laws were purposely obscure and accessible
only by the administration. The reformist, on the other hand, sought to remedy this by actually
announcing the crime and articulating the law that condemns. In Foucault’s words, “The

89
It is the sovereign “who seizes upon the body of the condemned and displays it
marked, beaten, and, broken” ('5 49). Thus, also necessary to the execution ceremony is the
total destruction of the body: “A body effaced, reduced to dust and thrown to the winds, a body
destroyed piece by piece by the infinite power of the sovereign not only an ideal, but the real
limit of punishment” ('5 50). This limit often included an Achilles;like ritualistic display,
dishonor, and destruction of the body, even after death.

146
publicity of punishment must not have the physical effects of terror; it must open a book to be
read” (' 111). But here is what makes Kafka’s text so striking. His machine accomplished
both — and more. Unifying the text with the wound creates an unmistakable link between the
crime and its punishment, rendering the law known and accessible.

- -. !# 4! #
In the tradition of sovereign justice, the ceremonial marking “pinned the public torture on
to the crime itself” establishing “from one to the other a series of decipherable relations” ('
44). For example, an execution was often performed at the exact location of the offense in the
same manner with the same weapons in order to allude to the transgression. Or, Dante;like
symbolic retributions were performed “in which the forms of the execution referred to the nature
of the crime” (' 45). For example, “the tongues of blasphemers were pierced, the impure
were burnt, the right hand of murderers was cut off” and so forth (' 45). These punishments,
in general, produced a “twin manifestation” in which the punishment simultaneously revenged
the sovereign and illustrated the nature of the transgression.
The reformists, on the other hand, sought a more transparent system of punishments in
with more precise articulation of the offense (rather than an excessive exercise of power). A
system of signs was considered which would link the transgression with the law with a one;to;
one correspondence. The intention was to deter crimes by reminding the public of an exact
punishment that corresponds with a specific crime. Similar to the symbolic retribution of the
sovereign, reformists asserted that the punishment should be analogous to the crime. For
example, Foucault refers to Le Peletier’s suggestion that “he who has used violence in his crime
must be subjected to physical pain; he who has been lazy must be sentenced to hard labour, he
who has acted despicably will be subjected to infamy” (' 105). Although this seems very
similar to the mechanisms of the sovereign, Foucault points out that “a quite different
mechanism is at work” (' 105). In the case of the reformists, the punishments were linked
with the nature of the crime and not the will of the sovereign. The sign no longer referred to the
vengeance of the king; it referred to the crime itself, thus producing a more natural link.
Kafka’s narrative again insightfully condenses sovereign;based justice with the
movements of the reformists. Whereas the latter achieved a “twin manifestation,” Kafka’s
condensation of the ritual is based on an amalgamation of the modalities that realizes even more

147
active play of the signifier. The text / wound sign has multiple referents functioning
simultaneously.90 The semio;strategy produced by Kafka is complex, but certainly interesting
and worthy of consideration. Whereas the machine functions primarily according to the
sovereign model, it is augmented by the addition of semiotic coding. At once, the text / wound
refers to the power of the sovereign, the punishment, and revenge, while simultaneously
articulating, publishing, and reinstating the law. (All the while, the screams of the condemned
person affirm the sign’s validity.)91

90
The artistic embellishments, however, still renders intelligibility difficult. He
explains that an “ignorant onlooker would see no difference between one punishment and
another” ( 0 200). The “ignorant onlooker” here refers to those unfamiliar with the writings
(the law) of the old commandant. Those outside of the discourse, cannot understand the
meaning in which the punishment is invested. Subsequently, the officer goes to great lengths to
explain the workings to the explorer, stressing the importance of the glass from which the public
can “watch the inscription taking form on the body” ( 0 200).
91
Interestingly, Foucault also considers the wounds, the cries, and the sufferings of the
condemned as a confession, as if the metaphorically headless body can speak. According to
Foucault, another aspect of the truth disclosing function of the execution is that it “took up once
again the scene of the confession” and “established the public execution as the moment of truth”
('5 43). The moment of public torture and execution was considered as the moment at which
the accused would have nothing to lose and would openly confess, ask for forgiveness, and even
name potential conspirators. (The pain involved in the torture encouraged a hasty confession.)
In Kafka’s narrative, the inscription indeed serves as a confession. Rather than voice a
confession, the body of the accused links the transgression with guilt by the physical, literal
articulation of the written word via the body. In other words, the marked, wounded, or
otherwise damaged body duplicates the function of the confession. This uniquely conflated
signifier, bound up within the discourse of the officer, connects the punishment with the crime
through the immediacy of language, itself offering a one;to;one correspondence between the
wound and the transgression, while at the same time referring to the force of the sovereign.
(Interestingly, the text — the sign itself —is also the very literal and very physical source of
pain).

148
 #" " #
The reformist mode of publication also functioned as a means of instruction. That is,
punishments were intended to remind the public of the codified system of crime and punishment:
“Long before he was regarded as an object of science , the criminal was imagined as a source of
instruction” (' 112). That is, the intended target of the punishment includes those who
witness the execution — the “potential guilty” (' 108). Foucault explains that the ceremony
of punishment was useful in that they function as a sort of school of civics. He writes that the
reformists thought that “[c]hildren should be allowed to come to places where the penalty is
being carried out” (' 111). Again, Foucault aids in the understanding of Kafka’s text when it
is approached as an amalgamation of discourse modalities. In this case, it helps the reader
understand the role of the public and the eerie insistence of the officer that the children be
allowed to witness the execution. The officer reminisces about the glory days of the operation
in which the public was an active component of the ritual and the children were given
preferential treatment. He explains, “It was impossible to allow everyone who requested it to
watch from up close. The commander, wise as he was, ordered that preference be given to the
children” ( 0 210). Obviously, the practice of watching a machine inscribe the body of the
accused is unnerving, but the reader should understand that besides realizing the power to
punish, Kafka’s machine was also a teaching machine. As noted, the conflation of mark and
sign creates a unique transparency that binds the transgression and the punishment. At once it
refers to the fierce terribleness of the punishment which deters those who witness it and by
inscribing the text of the law, but there is no mistake about the reason for the punishment.

# 1 " #- #"
Lastly, and perhaps most interestingly, the suffering body was believed to transmit a
climactic affirmation, “an ultimate truth,” at the end of the ceremony in which the spectators
attempted to reconcile “the judgment of men and the judgment of God” (' 45;46). According
to Foucault, the slow, dramatic torture of the execution was believed to be a moment at which
the accused is no longer fighting for his life, but is, rather, fighting for the salvation of his soul.
The sufferings — the cries, the moans, the screams —of the accused were considered an

149
illustration, a portal of sorts, to the punishments of hell that collectively signified the prisoner’s
“irremediable destiny” of eternal damnation (' 46). On the other hand, the suffering of the
condemned could also signify mercy, repentance, divine forgiveness, or even innocence.92 For
example, if the condemned died quickly and quietly, those present might interpret the lack of
suffering as divine intervention and protection. Foucault writes,
Hence the insatiable curiosity that drove the spectators to the scaffold to witness
the spectacle of sufferings truly endured; there one could decipher crime and
innocence, the past and the future, the here below and the eternal. It was a
moment of truth that all the spectators questioned: each word, each cry, the
duration of the agony, the resisting body the life that clung desperately to it, all
this constituted a sign. (' 46)
Thus, there is “an ambiguity in this suffering that may signify equally well the truth of the crime
or the error of the judges” (' 46).
The drama of the execution is equally applicable to Kafka’s text. The discourse of the
officer relied upon the suffering of the accused to validate the truth of the accusation.
According to the officer, “Enlightenment comes to the most dull witted. It begins around the
eyes. From there it radiates” (PC 205). In other words, the ceremony performs another
interesting exchange of signs. In the end, the condemned man deciphers the script through his
wounds: “he purses his mouth as if he were listening” ( 0 204), which produces more signs.
The body’s reaction to the suffering — the screams, sighs, and vacant eyes — are themselves
signs which are considered an affirmation of the inscription. Circuitously, signs produce signs
— which affirm the original signs.

92
Foucault asserts that in many execution acts as a rite of purification in which death
offers not only access to the truth of the crime via the confession and repentance, but also a
degree of secular heroism. “The condemned man found himself transformed into a hero by the
sheer extent of his widely advertised crimes, and sometimes the affirmation of his belated
repentance” ('5 67).

150
 ! % > % > !#* 4"
However, the climax of the execution could also , thus challenging the autonomy
of the sovereign or exposing it as fallacious. The legal, performative utterance is vulnerable if
the desired spectacle is not achieved. If the condemned did not suffer considerably, the guilt,
and correspondingly, the methods of determining “truth” could be questioned (as it is in the end
of Kafka’s narrative). In Austin’s terms, an “infelicity” or “misfire” occurs if the performative,
contextual procedure is not “carried through completely and correctly without a flaw and without
a hitch” (238). Consequently, it is a mandatory component within the structure of the officer’s
discourse that the accused suffer extensively and leave no question as to the truth of the
judgment and the power of the commandant. The truth of the utterance is linked to the
physicality of the suffering body. According to the officer, the torture was “not supposed to kill
right away, it’s planned for an average of twelve hours; the climax is calculated for the sixth
hour” (204). First,
The harrow starts writing. Once it’s applied the first round of script to the man’s
back, the layer of cotton slowly rolls the man over on his side to offer the harrow
a new space. Meanwhile, the raw areas wounded by the script gradually move
into the cotton, which because of its special treatment immediately staunches the
bleeding and prepares the body for deeper penetration by the script. Here, when
the body is rolled over again, the teeth along the edge of the harrow rip the cotton
from the wounds, hurl it into a pit, and the harrow then has more work. And so it
keeps writing deeper and deeper and deeper those twelve hours. ( 0 204;05)
At the beginning of the torture, the masses were silent in order to hear the machinations of the
apparatus and the screams of the condemned as his flesh was gouged by the needles while also
emitting “mordant liquid.” In the narrative, these theatrics had previously worked successfully.
According to the officer: “Everyone knew: Justice was being done” ( 0 210). The onlookers
watched, and seemingly always found visible cues in the suffering body that affirmed that justice
was served.93 The officer explains,

93
In the end, according to Foucault,
the body has produced and reproduced the truth of the crime — or rather it
constitutes the element which, through a whole set of rituals and trials, confesses

151
 I would often squat there with a small child in each arm, right and left. How
profoundly we took in the transfigured expression from the tortured face, how
intensely our cheeks basked in the glow of that justice, attained at long last and
already fading. ( 0 210;211).94
Things do not go so well in the end, however. It may be obvious to the reader that I,
until now, have ignored the most problematic component of Kafka’s narrative: the ambiguous
conclusion in which the apparatus symbolically implodes and the officer is climactically self;
executed. The previous sections recount the (very literal) machinations of the disciplinary
discourse in Kafka’s fictional penal colony from which we can now deduce the shortcomings,
failures, and eventual judgment of the apparatus and the overall judicial procedure itself. In the
first instance, Kafka signals the demise of the procedure characterizing a general lack of public
interest in the ceremony and declaring the new commandant’s (often overlooked) order that the
public not attend the final execution ceremony. The absence of participation is exceptionally
detrimental to the process considering that the participation was critical to the ritual in that it was

that the crime took place, admits that the accused did indeed commit it, shows that
he bore it inscribed in himself on himself, supports the operation of punishment
and manifests its effects in the most striking way. The body several times
tortured, provides the synthesis of the reality of the deeds and the truth of the
investigation, of the documents of the case and the statements of the criminal, of
the crime and the punishment. It is an essential element, therefore, in a penal
liturgy, in which it must serve as a partner of a procedure ordered around the
formidable rights of the sovereign, the prosecution and secrecy. (47)
94
A similar enlightenment or moment of ecstasy in murder is found in Kafka’s short
story “A Fratricide.” Schmar waits on a darkened street for his brother Wese who is walking
home from work. Schmar waits for him around a corner and then stabs him twice in the throat
and once in the stomach, after which he says, “The bliss of murder! The relief, the soaring
ecstasy from shedding another’s blood” (169). Pallas, a citizen looking on from window, bent
forward so he will not miss anything, watches the murder happen. The narrator asks why he did
not stop the execution, but is only answered by the exclamation, “Unriddle the mysteries of
human nature!” (168).

152
needed to witness the announcement, publication; and most importantly, it was required to
validate the “truth” of the discourse and the power of the old commandant. Moreover, the
absence of public participation renders the context of the ceremony theoretically “infelicitous”;
that is, it renders the discourse invalid: its utterance a “misfire.” Secondly, the demise of the
procedure is signaled by the fragmentation of the apparatus itself, representative of a disorder
quite opposite from the requisite orderliness presented in the previous section. While,
historically, the element of order was at once necessary for the discourse to function, the
ceremony always included a fundamental, contained disorder, which always shadowed the event.
The inherent violence of the episode always presented the possibility of disturbance —the
possibility that the violence of the procedure could be inverted, turned on the executioner himself
(in this case, the officer). In the ostensibly, regulated execution procedure, there was always a
remainder — the possibility of chaos, disorder, and carnival. In Kafka’s narrative, the mob
violence associated with such a reversal is missing, but the procedure, nevertheless, is judged
“unjust” by the proxy representative of the European community, the traveler. Consequently,
the officer acknowledges the communal judgment and usurpation of his power and willingly
turns the violence on himself, enacting a dramatic self;sacrifice. Judged a criminal, the officer
chooses punishment according to his own “law” and his “procedure” as a last act of allegiance to
the old commandant’s discourse. Ironically, it is the machine and the very procedure that
sustains the discourse’s existence that kills he who attempts to keep it alive.

!""
As discussed earlier, all is not well at the colony. There is a political battle between the
regimes of the old and new commandants: the former representative of sovereign, autonomous
authority and the latter representative of the Enlightenment, reformist methodology determined
to abolish the inhumane practices of the old. Both sides of the methodological joust are equally
passionate about the undeniable, even commonsensical, nature of their respective disciplinary
ideologies, and Kafka’s narrative accounts for the final moments of this battle in which torture as
a European disciplinary practice, represented by the officer’s glorious machine, is on the verge of
extinction. Although the officer has passionately attempted to maintain the apparatus and the
disciplinary procedure after the old commandant’s death, the new commandant — the apparent
representative of reform at the colony —aims to replace the methodology of torture.

153
 However, the reader must recognize that the new disciplinary procedure is not simply a
more humane version of the former; E The methodical
destruction of the body is no longer at stake in the new modality even though the precise target
of the new disciplinary power is uncertain. Although Kafka is unclear about what this new
method of punishment looks like (that is, until ), the reader is made sufficiently aware
that the new commandant’s method is a “new mild policy [that] reflects a different attitude” ( 0
208) about punishment, implying that the new model reflects a more gentle punishment that no
longer directs its attention to the violent destruction of the body. (Compare, this for example,
with the prosecution of Joseph K., which is perhaps representative of the “new” discourse:
dispersed and impotent.) Thus, the change at stake here is much more consequential than a
change in policy; it is representative of a precise moment in the history of disciplinary
technologies when one discourse is in the process of being supplanted by an(other). In the
words of the officer, “it’s time” ( 0 219). And, these were Kafka’s times.
“[M]eticulous in his calculations” ( 0 212), the new commandant had implemented a
slow, methodical approach to eliminate the old procedure. Refraining from drastic measures,
the new commandant has instead rendered the execution procedure nearly unmanageable by
making things very difficult for the officer to continue with his proceedings. For example, the
new commandant has withheld necessary maintenance funding, and, consequently, the machine
is in a state of foul disrepair, reflecting the dilapidated, obsolete nature of the procedure itself.
The straps are weak and the repulsive felt stump that is inserted into the mouth of the accused
has not been replaced for some time, causing the condemned man to gag and vomit. Finally, the
most important constituent of the usurpation, ensuring the final collapse of the machine and its
preliminary procedure, is the invitation to the explorer, who is familiar with (although not an
expert on) the disciplinary methods of other nations, to attend the ceremony, thus exposing the
officer’s seemingly barbaric, judiciary methods. The explorer’s judgment, it seems, will provide
the new commandant sufficient reason to claim that the procedure can no longer be tolerated.
At the height of public torture’s popularity in Europe, the public perceived the execution
ceremony as a right and privilege — an ideology contributing to the procedure’s long survival
(Foucault). The masses willingly and enthusiastically participated in the ritual as a sign of
public support for the sovereign and a sign of disapproval of those who dared transgress the
regime’s authority. In a penal colony, the public (administration, citizenry, and inmate)

154
participation would be required in order to display the unquestionable, fierce, and relentless
power of the commandant, which ensured quick, unmediated response to criminal activity.
Likewise, in Kafka’s fictional colony, the officer recounts a history that makes it every clear that
the public at one time avidly supported and devotedly participated in the procedure. For
example, the officer explains that at the time of the scheduled execution, the “entire valley was
mobbed a whole day in advance,” and “the spectators stood on tiptoes as far as the hills” ( 0
210). In fact, the procedure was so popular that the officer even had to build a fence around the
pit to keep the masses away from the machine and the accused. The officer reminisces:
How different an execution was in the old days! A whole day before the
ceremony the valley was packed with people; they all came only to look on; early
in the morning the Commandant appeared with his ladies; fanfares roused the
whole camp; I reported that everything was in readiness; the assembled company
 no high official dared to be absent  arranged itself round the machine; this
pile of cane chairs is a miserable survival from that epoch. The machine was
freshly cleaned and glittering. (208;9)
Considering the public’s past interest, the most interesting, and perhaps most overlooked,
part of the new commandant’s invitation to the explorer is the strategic demand of public
exclusion. Foucault explains the public’s significance and its historical removal as follows:
In the ceremonies of the public execution, the main character was the people,
whose real and immediate presence was required for the performance. An
execution that was known to be taking place, but did so in secret, would scarcely
have any meaning. The aim was to make an example, not only by making people
aware that the slightest offense was likely to be punished, but by arousing feelings
of terror by the spectacle of power letting its anger fall upon the guilty person. [ .
. . . ] Not only must people know, they must see with their own eyes. Because
they must be made to be afraid; but also because they must be the witnesses, the
guarantors, of the punishment, and to a certain extent take part in it. (DP 57;58)
While the officer has admitted to the current, overall lack of interest in the colony, the new
commandant, nevertheless, actually orders that the public not attend the latest ceremony. While
the new commandant wants to distance the administration from the obsolete practices, the
prohibition itself also serves as a means to diminish the power of the officer and vitiate the

155
spectacle of the apparatus. At the scene of the final execution, for example, there is no one
present except the officer, the explorer, the condemned man, and the soldier — creating a setting
in which the discourse is revealed as pathetically, unconvincing.
The officer, however, underestimates the importance of the public ceremony.
Demonstrating a critical misunderstanding of the old commandant’s discourse, the officer
mistakenly perceives the lack of public attendance, in this case, as advantageous in that it allows
a moment alone with the explorer to convince him of the machine’s power. For example, he
gloats, “Why I was in seventh heaven when I heard that you would be attending the execution all
by yourself. This order from the commander was aimed at me, but I will now turn it to my
advantage” ( 0 214). The officer thinks that he can still convince the explorer of the
procedure’s effectiveness but does not recognize the requisite public affirmation and validation
of truth and power, mistakenly assuming that the machine “works on its own even when it’s
alone in this valley” ( 0 211), adding that “ultimately, the corpse, in an incomprehensibly gentle
flight, still drops into the pit even if hundreds of people no longer gather round the pit like flies,
as they used to do” ( 0 211) as if the act of killing was effective in itself. But, the terror
associated with the officer’s power is silenced, the apparatus symbolically muted, the “truth” of
the judgment made speechless. The “performative” judicial articulation, as noted earlier, is
dependent on the context of public pronouncement and recognition. Thus, theoretically, in the
absence of this “ritual” or “context,” Foucault and Austin’s positions on discourse confirm that
the judicial utterance is rendered impotent and ineffective. That is, the discourse here cannot
determine or articulate a judicial truth in isolation. Austin for example, notes that performative
utterances, such as the described legal judgment, suffer an “infelicity’ and fail if the necessary
conditions are not met or if the context is inappropriate; that is, the utterance, unless certain
criteria are present or if “certain [ . . . ] rules are broken,” the statements are not valid (Austin
237). In other words, the performative would be considered a “misfire” (238) 95 — a term
particularly appropriate for the description of the machine’s later self;destruction.

95
For example, consider an example invoked often by Austin: the marriage ceremony.
If a priest, alone while gardening, “pronounces” his unmarried neighbors man and wife, it would
not be so. The utterance would fail, in part, because of the absence of the couple’s consent and
the absence of the public ceremony.

156
 *
Thus, the power of the discourse and its truth making function are crippled. In its
weakness, the law is ridiculed, its authority directly challenged. For example, Pieter
Spierenburg, author of “The Body and the State: Early Modern Europe,” claims:
Modern historians once assumed, incorrectly, that executions had always been
popular festivals. But when the perceptions of a large part of the audience
changed, the execution ritual could no longer convey a moral lesson or buttress
the power of the authorities. Instead, the ceremony became the occasion for
merriment or even for mockery of the law. (58)
In the final moments in the history of public execution, the drama and theater of brutality failed
to make people afraid. In fact, the masses began to understand the ceremony as a shameful
display of brutality far more egregious than the transgressions which it punished.
As a result, justice no longer takes public responsibility for the violence that is
bound up with its practice. If it too strikes, if it too kills, it is not as a
glorification of its strength, but as an element of itself that it is obliged to tolerate,
that it finds difficult to account for. The apportioning of blame is redistributed:
in punishment as spectacle a confused horror spread from the scaffold; it
enveloped both executioner and condemned; [ . . . ] it often turned the legal
violence of the executioner into shame. (' 9)
As the public became more and more disillusioned with the “shame” of the violence, the
ceremony became an occasion for the display of public disapproval in which the authority of the
“law” was scorned or even violently usurped. For the same reason, it seems that the officer in
Kafka’s story is glad that the public is absent because of the potential that the public derision and
its contempt may influence the explorer. The officer explains that, whereas the procedure was
once popular, the executions of late had been plagued with “false insinuations and scornful
looks” ( 0 214) which are representative of the public’s estimation of the procedure as
unreasonably cruel and shameful (sentiments that refused the old commandant a respectable
burial in the cemetery).

157
 # . 7 #1
Historically, as the public became more disgusted with the corporal procedure, there
became a real chance that the violence of the execution could actually be reversed, turned inward
on the executioner himself as an act of revenge for the atrocities:
Preventing an execution that was regarded as unjust, snatching a condemned man
from the hands of the executioner, obtaining a pardon by force, possibly pursuing
and assaulting the executioners [ . . . ] — all this formed part of the popular
practices that invested, traversed, and often overturned the ritual of the public
execution. (' 60)
These uprisings became common place when “excessive sentences [were] passed on certain
common offenses that were not regarded as serious”96 (' 62). It is this possibility, Foucault
contends, that contributed to the demise of sovereign justice (not the inhumanity in itself). The
atrocity of public torture, however effective, always created a situation in which the violence
could be taken up by those present who rejected the power and disciplinary method of the
sovereign. As a response to this possibility, the spectacle of punishment was diminished and
eventually distanced or removed from the realm of public participation. Foucault writes,
And whatever theatrical elements it still retained were now downgraded,
, as if
this rite that ‘concluded the crime’ was suspected of being is some way linked
with it. It was as if the punishment was thought to equal, if not exceed, in
savagery the crime itself, to accustom the spectators to a ferocity from which one
wished to divert them, to show them the frequency of the crime, to make the
executioner resemble a criminal, judges murderers, to reverse roles at the last
moment, to make the tortured criminal an object of pity or admiration. (' 9,
italics mine).
As a consequence of the ideological reversal, Foucault points out that the public, however
accustomed to the violence they may have become, soon associated the sovereign with he who
was as guilty as those accused had actually transgressed the law. That is, the sovereign was

96
Foucault points out that these disturbances were often a result of the economic
conditions. It seems that the lower classes were often the victims judicial discrimination.

158
thought to have performed the same, or even worse, acts of violence than the condemned.
Consequently; the people, at times, reacted to the brutality and excessiveness of the procedure by
rising up and turning their anger against the executioner — an “inversion of the penal
machinery” (' 64).
There is a similar “inversion” in Kafka’s story caused by a lack of sympathetic
understanding. The machine of justice turns on itself and executes the executioner. Although
the “solidarity” of public disapproval or revolution at the scaffold is absent from Kafka’s
fictional execution, a representative of the community’s condemnation is present. The explorer
is a stand;in of the European community and its “attitudes,” speaking for the community and
effectively passing judgment on the apparatus. The judgment is made clear in Kafka’s journals
in a version of the narrative in which the officer’s apparition appears before the explorer and
says, “I was executed, as ” (': 181, italics mine). In other words, the explorer
inverts the machinery and avenges those that were sentenced and executed as unjust. In the end
the explorer tells the officer that he opposes the procedure, judging the machine unfair,
“unreasonable,” inhumane, and “unjust." While respecting the officer’s conviction, he cannot
be deterred from making his “verdict” known to the new commandant, thus refusing to
participate in the officer’s plan to win back the public’s support: “Apparently the foreign
explorer had given the order for it. So this was revenge” ( 0 221).
The officer responds to the lack of support, acknowledging, “Well, then it’s time” ( 0
219). When asked time for what, the officer does not respond and silently releases (pardons) the
accused man from the apparatus, signally the end of his power and initiating his final act. Next,
the officer pulls out his portfolio of documents and refers the explorer to a specific page. Still
careful not to soil the page, he calls the explorer’s attention to the inscription “Be just” ( 0 220).
He then climbs up the machine, adjusts the gears, and then, after washing his hands (still
respective of the machine), proceeds to carefully remove his uniform which was symbolic of the
sovereign, even removing and breaking his sword. (Traditionally the sword is symbolic of
justice which is ritualistically destroyed when an officer is removed from his post.) He then
climbs onto the machine. It is time for the final execution, time for the public to have its
revenge.
[H]ardly were the straps tightened when the machine began working; the bed
quivered, the needles danced on the skin, the harrow floated up and down. The

159
 traveler had been staring at it for a while when it struck him that a gear in the
draftsman should have been streaking; but everything was quiet, not the slightest
humming could be heard. ( 0 224)
Recognizing that the battle for power has been lost, his procedure judged “unjust,” the officer
perceives that the “correct” thing to do would be to sacrifice himself within the parameters of the
disciplinary modality which he so passionately defended. Rather than succumb to the power of
the new administration passively, the officer, although judged from outside his interpretation of
the “law” (an “other” discourse), he is compelled to exact punishment according to his policy.
Ironically, by punishing himself for being “unjust,” he is actually being just by serving the
justice according the discourse that he represents.
The machine, in its dilapidated state, symbolically implodes. The silence of the
procedure is shattered by the fragmentation of the apparatus.
The cogs of a gear surfaced and rose, soon the entire gear emerged; it was as if
some tremendous force were squeezing the draftsman together, leaving no room
for this gear. The gear turned all the way to the edge of the draftsman, fell down,
trundled upright over a stretch of sand, and then lay flat. But now a further gear
was already rising up above; it was followed by many others, large, small, and
barely discernible ones. The same thing happened to all of them. Whenever the
onlookers figured that the draftsman must be empty by now, a new very large
group appeared, rose, plummeted, trundled and lay flat across the sand, and lay
flat. ( 0 225)
Hence, the machine, itself representative of a disciplinary era, imploded, its discourse silenced.
Consider the final operation: “The harrow was not writing, it was only pricking, and the bed was
not rolling the body, it was only lifting it, quivering, against the needles” ( 0 226). There was
no writing or code to decipher, and, in fact, the final execution, absent of the public exhibition of
strength and terror, was no longer punishment. Not only is the marked body unreadable, the
coded moment of enlightenment, promised by the officer in the many other executions, is no
longer visible. For example, when the traveler looks at the face of the dead officer,
It was as it had been in life; no sign of the promised redemption was perceptible;
the officer had not found what all the others had found in the machine. His lips
were squeezed tight, his eyes were open, with the same expression as in life, his

160
 gaze was calm and convinced, the point of a large iron spike had passed though
the forehead. ( 0 226)
In the end, the discourse does not validate the power; it does not affirm a truth; there is no
enlightenment. In other words, the sign and the ritual no longer functions. What was once
thought of as a source of enlightenment is now a shameful act of cruelty. It stabs. It
shamefully kills. Times have changed, and the discursive shift is complete in that the language
recognizes the punishment anew: “[T]his was no torture, [ . . . ] it was full blown murder” ( 0
226). In the end, corporal punishment was inverted. As Foucault notes, “It was as if the
punishment was thought equal, if not to exceed, in savagery the crime itself, to accustom the
spectators to a ferocity from which one wished to divert them [ . . . ] to make the executioner
resemble a criminal, judges murderers, to reverse roles at the last moment” (' 9).

7 %"
The most interesting shift is that which concerns the language which coincides with the
shift in modalities. That is, the continuum of possible statements now includes “murder” as a
description of the punishment. The same act, the same behavior, at once is referred to as
“punishment” is at another “murder.” The event itself has not been altered — only its context,
the language, the sign. This change in the “langue” or “system of possible statements”
recognizes a transformation of rules, a change in the “order of things,” a change in what can be
thought and said. In the end, “The Harrow was not writing; it was only jabbing” ( 0 224). It
was no longer producing a text. The signs were now reduced to jabs, which did not refer to the
power to punish, but to the shame of the violence; that is the referent had slipped. The
“exquisite torture” had been transformed into “plain murder” ( 0 224). The final utterance
signals the legitimization of one discourse and the de;legitimization of another.97

97
In a Foucauldian analysis of discourse, one inquires about the rules of formation that
allow certain utterances to occur and excludes others. In Foucault’s terms, “we must grasp the
statement in the exact specificity of its occurrence; determine its conditions of existence, fix at
least its limits, establish its correlations that may be connected with it, and show what other
statements it excludes” ($& 28). In the discourse of sovereign justice the corporeal punishment
would never be considered “murder” until the limits of the punishment had been reached when
the “legal violence” (' 63) became murder.

161
 # / *1 !#*
The older discourse actually worked on and through the body, articulating its knowledge
on the flesh. Speaking of “In the Penal Colony,” Gailus points out, “Kafka’s story describes a
mechanism that is at once very similar and very different” to Althusser’s idea of interpellation
(299). He writes,
As with Althusser, it [the story] stages a scene of ideological recognition: the
moment of transfiguration is the one that the prisoner deciphers, and recognizes
himself in, the Law that is being inscribed onto his body. But whereas in
Althusser the drama of interpellation takes place on the level of the psyche, this
process now works directly on and through the body. Interpellation, in Kafka,
occurs through the somatization of ideology; it is a mechanical operation through
which the Symbolic is carved into the subject’s body” (299).
Gailus is correct in the first instance, but is wrong in the assumption that all of Kafka’s work
operates in this mode of interpellation. Rather, Kafka writes from a singular ideological rupture
and transition. Like the protagonist Joseph K. who makes a transition from one discourse to
another, Kafka’s oeuvre shows the transition from the body to the psyche.
The goal of the officer throughout the narrative is to explain, justify, and make the
apparatus somehow “comprehensible” to the explorer who was invited to witness the execution
( 0 211). Although readers may have difficulty relating to the officer, Kafka wants the reader
to understand him, empathize with his passion, but eventually reject his project (like the
explorer). Although the latter is obvious, the former is rarely successful. Foucault’s analysis of
torture and the body, however, accomplishes what the officer could not. A history of the ritual,
the body, and their combined (condensed and conflated) signs illustrate the intricate workings of
the apparatus and the complex function of the disciplinary modality. The truth of the crime, the
judgment, and the punishment are constructed via the authorized utterance of the sovereign,
which is announced, published, and affirmed via the twin text / wound signifiers inscribed on the
body of the accused. Truth and punishment are revealed as mutually inclusive, merged at the
site of the wounded, tortured body, re;establishing the fierce power of the (sovereign) old
commandant while also articulating the specifics of the law.
When approaching the text in the classroom, my students consistently wish to dismiss the
piece as the ramblings of some sort of madman. “Who would write such a work?” “Why

162
would he write such a gruesome story?” I think the answer can be found in Kafka’s present in
which the inhabitant’s of prewar Bohemia were continually faced with the threat of a malicious
empire. Many authors comment on the fact that Kafka’s everyday world was governed by an
extensive bureaucracy, but few (if any) acknowledge the real threats and punishments which
were possible at the time.
Kafka’s story is a reminder to the reader, specifically those of his era, that despite
appearances (i.e. the fantasy of reform) horrible atrocities were a reality. Like the explorer who
at first “did not much care about the apparatus” (191), Kafka’s readership is reminded of a
haunting past and the inhumanity of the present. Gailus explains the opposition between the two
forms of punishment and the two disparate concepts of justice as a conflict of “fantasies.” On
the one hand, the officer upholds the institutional fantasy of the old commandant which relies on
absolute power and resists “the passing of time” or “history itself” (296). In effect, the officer
(the prince) and the old commandant (the king) are representations of the sovereign
+ . On the other hand, the explorer “stands outside of this mythical framework,” but his
perspective “is itself fantasmatic in that it provides the explorer, under the cover of seemingly
impartial observation, with the archaic foil for his institutional fantasy of a modern,
civilized, European legal system which has outgrown the brute violence of its archaic prehistory”
(Gailus 296). The literal aspects of the story and the closeness to the machinations of the empire
disclose the latter fantasy for what it is. In Kafka’s short story, the machinations of the empire
are best characterized by the presence of the old commandant who was buried in the teahouse.
Kafka reminds the reader of the possibility of a return: “[T]he Commandant will rise again and
lead his adherents from this house to recover the colony.” ( 0 226). Although the discourse of
corporeal torture had been removed from the public, the trace was always extant. It functioned
at the edges of the culture within the penal colonies and it haunted the streets of Prague.98 A

98
Like Kafka, Foucault was concerned with the removal and the return of the Other, that
which can be pushed to the edges of discourse, but is never totally silenced. For example, in
/ 0 3 , Foucault accounts for the ostracization of the madness, both literally
and within the confines of logic and reason. However, the remainder is never completely
silenced. As Bruns explains, Foucault characterizes the

163
discourse can be pushed to the fringes, but it is difficult to forget. As Gerald Bruns has
remarked, great literature reminds us of the Other. The penal colonies removed the practices of
torture from the discourse of the everyday punishment (literally), but the practices remained and
survived for many years. While the explorer is outside of the older paradigm, the older
discourse can never be completely forgotten or silenced. Kafka’s disclosure of the logic of
torture functions to bring the reader close to the repressed — the Other — and marks its return.
That is, like Joseph K. in , the reader assumes that such outdated forms of discipline are
far away customs, but Kafka’s de;familiarized introduction to the device serves to remind the
reader of the present. Although the officer is referring to the disappearance of the spectacle
when he asks, “Do you realize the shame of it?” it should be clear to the reader that Kafka is
asking the readership the same question of his present.

“obsessive awareness of madness” as “one of the consequences or even functions

of reason [ . . . ] which expresses itself [ . . . ] in the form of fantastic or grotesque
images memorialized by Goya and Sade — and, later, in different ways, by
Hölderlin, Nerval, Nietzsche, Roussel, and Artaud” (68).
Bruns adds that while madness may be confined and otherwise removed, the language or the
voice of unreason can never be completely silenced. Institutions within discourse may push its
articulations to the fringes of discourse, it will always return, particularly in the realm of art and
literature. Kafka’s work is a manifestation of the same. While punishment and torture are
pushed to the fringes of discourse, Kafka’s text is the reminder.

164
 Considering that “In the Penal Colony” and were written almost simultaneously
in 1914, it is particularly striking that the two narratives represent very different judicial models
— two distinct discourses, echoing from the same political space. In the first instance, “In the
Penal Colony” symbolically delineates the last moments of an obsolete paradigm, presciently
calling attention to the brutal, yet effective, hard;to;die mechanism of sovereign justice and the
role of the body as object of disciplinary inscription in the public theater of pain and retribution.
The narrative articulates the last moments of a (very literal) penal machinery based on a
discourse of absolute, independent justice, expressed on and through the flesh via ceremonial
acts of revenge. , however, is dramatically different — less concerned with corporeal
punishment and more (but not exclusively) focused on strategies that control subjects:
anonymous power, examination, and surveillance. articulates a modern disciplinary
discourse, focusing on the psychology (the “soul”) of the accused rather than the body, but at the
same time makes visible remnants of the past paradigm. How is it that the two texts allude to
distinctively separate paradigms? The answer lies in the fact that this remarkable, textual shift
corresponds with a singular, historical moment at which disciplinary techniques and the specific,
disparate judicial discourse formations which made them possible were exchanged, one for the
other. In other words, “In the Penal Colony” and represent a simultaneity in which
disparate historical, disciplinary discourses collide — a moment of rupture, exchange, and
confrontation, only possible in that precise historical envelope from which the author spoke. In
other words, it represents a singular, historical moment at the threshold of legal and disciplinary
transformation, a moment that fluctuated between the archaic modalities of inquisitor;based
discipline and modern surveillance.
At the beginning of this work, I focused on Joseph K.’s statement that “the real question
is who accuses me” and his question of “what authority is conducting these proceedings?” (11).

165
The original question, despite its metaphysical temptations, is a question of Kafka’s reality. It is
a legal question. It is a question that that can only be answered from the passage of time, and
the answer lies in the recognition that there are multiple authorities — multiple ways of
understanding the judicial landscape of Kafka’s world. The authority that accused in Kafka’s
work was a confused conflation of judicial models functioning amidst a dark, turbulent moment
in history in which the seminal emergence of a disciplinary society was haunted by the remnants
of sovereign justice. At the center of both is the body, appropriated by both as the site at which
the ideologies were inscribed.
Foucault extends his singular investigation of discourse formations to the problems of
authorship and oeuvre, and this is where I would like to end. He recognizes that the same
“discursive layers” present in specific bodies of knowledge can be present in an author’s oeuvre,
resulting in similar discontinuities. He problematizes the notion of authorial unity and asserts
that like other discourses, there are gaps and discontinuities within a set of documents, which
begs the question of which author is speaking, or which discourse is speaking. Within this
context, Foucault examines the “problems related to the category of the proper name” (8$ 121).
He asserts that the signifier (the name) refers to more than the specific individual. It also refers
to a system of beliefs and concerns from which the author wrote: “the definite descriptions of the
type” (8$ 121). This referral to a collection of works and ideas problematizes the signifier
when the referent is modified. Foucault uses the example of Shakespeare, wondering what
would happen to the signified if it was discovered that Shakespeare did not write the sonnets that
were attributed to him. The result would be “a significant change” that would “affect the
manner in which the name functions” (8$ 122).
I contend that there is no better example of this lack of unity than Kafka’s oeuvre and that
the consequence is a significant change in the meaning of “Kafka” once this name is situated
within the discursive conflict identified in this essay. The referent Franz Kafka is dismantled by
the simultaneous articulations of disciplinary mechanisms from the very moment of the historical
rupture. They speak of and from a conflicting understanding of what it means to punish, and the
narratives which refer to markedly different disciplinary spaces (i.e. the corporeal and the
psychological). Thus, in terms of literary studies, the term “Kafkaesque” becomes problematic.
The author’s narratives are readily classified as & D : surreal or distorted representations
of reality. , for example, is often considered the baseline example in which the

166
protagonist finds himself amidst a disorientating, ominous judicial predicament. But, there is a
problem here. It is a reality, and the source of the conflict lies in the confusion between
paradigms. Joseph K. is haunted by the return of the Other in the form of the attic courts which
is at odds with his fantasy of constitutional rights. In “In the Penal Colony,” the tension is not
the explorer’s choice to not support the officer (he has no choice). It is lies in the confrontation
of two discourse formations and the moment at which one is relegated to that of Other and the
threat that it will one day return (a threat still very much part of our present). In other words, the
source of tension is rooted in a collision of (all too real) disciplinary paradigms. Thus, the
definition of & D must refer in some way to interspaces of discourse formations.
Consequently, readers should expand the definition of & D as that unique literature which
appears surreal or distorted because of a singular collision of discourse modalities.

167
Allen, Danielle. “Sounding Silence.” / 6/ 8.2 (2001): 325;334.

Althusser, Louis. % Trans. Ben Brewster. New York:

Monthly Review Press, 2001.

Allison;Booth, W.E. ' @ # (" 5 *

New York: Putnam, 1931.

Arendt, Hannah. “Franz Kafka.” 5 3 & ($ $ / + 0 Ed.

Kenneth Hughes. Hanover: University Press of New England, 1981. 3;11.

Asman, Carrie, L. “The Language of Defamiliarization: Benjamin’s Kafka.” $

& @ * 5 Ed. Richard T. Gray. New York: The Modern
Language Association of America, 1995. 76;83.

Austin, J.L. Ed. J.O. Urmson and C.J. Warnock. New York: Oxford
University Press, 1979.

Barthes, Roland. “Kafka’s Answer.” 5 3 & ($0 0 Ed. Leo

Hamalian. New York: McGraw;Hill, Inc., 1974.

Bauer, Johann. & New York: Praeger Publishers, 1971.

Belbenoit, René. ' (5 J $ % ' New York: E. P.

Dutton and Company, Inc., 1938

Benjamin, Walter. “Franz Kafka: On the Tenth Anniversary of His Death.” #

Trans. Harry Zohn. New York, Schocken Books, 1968.

Brod, Max. 5 3& ($) New York: Schocken Books, 1960.

Bruns, Gerald. “Foucault’s Modernism: Language, Poetry, and the Experience of Freedom.”
$ New York: Fordham University Press, 2006. 57;
78.

168
Burnham, William. “The Legal Context and Contributions of Dostoevsky’s 0
.” / % " . 100: 1227;1248, 2002.

Capek, Thomas. ) C ! / ($* # $

) * -$ " $
8 New York: Fleming H. Revell Company,1915.

Dodd, Bill. “The Case for a Political Reading.” 0 0 & Ed.

Julian Preece. Cambridge: Cambridge University Press, 2002. 131;149.

Dreyfus, Hubert L., and Paul Rabinow. / 5 () *

! Chicago: University of Chicago Press, 1983.

Esmein, A. $ ! 0 0 Trans. John Simpson. Boston: Little,

Brown, and Company, 1913.

Eribon, Didier. / 5 Trans. Betsy Wing. Cambridge: Harvard University Press,

1991.

Fast, Howard. “The Metamorphosis.” 5 3 & ($ $ / + 0 Ed.

Kenneth Hughes. Hanover: University Press of New England, 1981. 12;14.

Fickert, Kurt J. “A Literal Interpretation of 'In the Penal Colony.'” / 5 * 17

(1971): 31;36.

Fischer, Ernst. “Kafka Conference.” 5 3 & ($ $ / + 0 Ed.

Kenneth Hughes. Hanover: University Press of New England, 1981. 76;94.

Foucault, Michel. $ & Trans. A.M. Sheridan Smith. New York:

Pantheon Books, 1972.

444 ' ( ) Trans. Alan Sheridan. New

York: Vintage Books, 1995.

;;;. “The Discourse on Language.” $ & Trans. A.M Sheridan

Smith. New York: Pantheon Books, 1972. 215;237.

;;;. ! * + , #( $ # Trans. Robert Hurley. New York: Vintage

/ Random House, 1978.

169
444 #- " . -! * / / -/ * - / ) ($0
12 0 Ed. Michel Foucault. Trans. Frank Jellinek. Lincoln:
University of Nebraska Press, 1975.

;;;. / 0 3 ($! # $ " Trans. Richard

Howard. New York: Vintage / Random House, 1965.

;;;. “Nietzsche, Genealogy, History.” % -0 4/ - Ed. Donald F.

Bouchard. Ithaca: Cornell University Press, 1977.

444 ($ $ ! * New York: Vintage

Books, 1994.

;;;. “Politics and the Study of Discourse.” 5 (*

Ed. Graham Burchell, et al. Chicago: The University of Chicago
Press, 1991. 53;72.

444 6& * # 7 8 Ed. Colin Gordon. Trans.

Colin Gordon, Leo Marshall, John Mepham, and Kate Soper. New York: Pantheon `
Books, 1980.

;;;. “Questions of Method” 5 (* Ed. Graham

Burchell, et al. Chicago: The University of Chicago Press, 1991. 73;86.

;;. “The Subject and Power.” / 5 () * !

Chicago: The University of Chicago Press, 1983. 208;226.

;;;. “Truth and Power.” 5 " Ed. Paul Rabinow. New York: Pantheon
Books, 1984. 51;75.

;;;. “What is an Author” % -0 4/ - Ed. Donald

F. Bouchard. Ithaca: Cornell University Press, 1977. 113;138.

Freundlieb, Dieter. “Foucault and the Study of Literature.” 16.2 (1995): 301;44.

Gailus, Andreas. “Lessons of the Cryptograph: Revelation and the Mechanical in Kafka's ‘In the
Penal Colony.’” / 6/ 8.2 (2001): 295;302.

Garaudy, Roger. 5 3 & ($ $ / + 0 Ed. Kenneth Hughes.

Hanover: University Press of New England, 1981. 104;110.

170
Goldner, Ellen J. “Monstrous Body, Tortured Soul: 5 at the Juncture between
Discourses.” % Ed. Lee Quinby. Minneapolis: University of
Minnesota Press, 1995. 28;47.

Goldstücker, Eduard. “Franz Kafka in the Prague Perspective: 1963.” 5 3 & ($

$ / + 0 Ed. Kenneth Hughes. Hanover: University Press of
New England, 1981. 60;75.

Hermsdorf, Klaus. 5 3 & ($ $ / + 0 Ed. Kenneth Hughes.

Hanover: University Press of New England, 1981. 22;37.

Hirst, John. “The Australian Experience: The Convict Colony.” + !

( 8 * ? Ed. Norval Morris and
David Rothman. New York: Oxford University Press, 1995. 263;295.

Hunt, Alan and Gary Wickham. 5 % ( * %

Boulder: Pluto Press, 1994.

Janouch, Gustav. 0 & Trans. Goronwy Rees. New York: New

Directions Books, 1971.

Kafka, Franz. ' 5 3& ( 121>4121< Ed. Max Brod. Trans. Joseph Kresh.
New York: Schocken Books, 1948.

;;;. ' 5 3& ( 121;412:< Ed. Max Brod. Trans. Martin Greenberg. New
York: Schocken Books, 1949.

;;;. % ! 5 Trans. Ernst Kaiser and Eithne Wilkins. New York: Schocken Books,
1971.

;;;. % / Ed. Willi Haas. Trans. Tania and James Stern. New York:
Schocken Books, 1953.

;;;. / -# 0 - * * Trans. Joachim

Neugroschel. New York: Simon & Shuster Inc., 1995.

;;;. + Berlin: Schocken Books Inc., 1958.

;;;. 0 (* * Trans. Willa and Edwin Muir. New

York: Schocken Books, 1961.

171
;;. Intro. George Steiner. Trans. Willa and Edwin Muir. New York: Schocken
Books, 1992.

;;. Intro. Trans. Breon Mitchell. New York: Schocken Books, 1998.

Karl, Frederick. 5 3& (" / New York: Ticknor & Fields, 1991.

Kusák, Fast, Alexej. “On the Marxist Interpretation of Franz Kafka.” 5 3 & ($
$ / + 0 Ed. Kenneth Hughes. Hanover: University Press of
New England, 1981. 95;103.

Löwy, Michael. “Franz Kafka and Libertarian Socialism.” 6.3 (1997): 120;131.

Lukács, Georg. " (% 0 * Trans. John and Necke

Mander. New York: Harper & Row, 1971.

Lyotard, Jean;François. 0 ($" & Minneapolis:

University of Minnesota Press, 1984.

Macy, David. % / 5 New York: Pantheon Books, 1993.

McHoul, Alec., and Wendy Grace. $ 5 (' - - * E .

New York : New York University Press, 1997.

McNay, Lois. 5 ($0 # New York: Continuum Publishing Company,

1994.

Mitchell, Breon. Translator’s Preface. By Franz Kafka. New York: Schocken

Books, 1998.

Muir, Edwin. “Franz Kafka.” & ($0 0 Ed. Ronald Gray.

Englewood Cliffs: Prentice;Hall, Inc., 1962. 33;44.

Nosek, Vladimer. # ) ($ $ 03 4* * %
London: J.M. Dent & Sons Ltd., 1918.

O’Brien, Patricia. “The Prison on the Continent: Europe, 1865;1965.” + !

( 8 * ? Ed. Norval Morris and
David Rothman. New York: Oxford University Press, 1995. 199;225.

172
Pan, David. “Kafka as a Populist: Re;Reading 'In the Penal Colony.'” ($9
A " * . 101 (1994): 3;40.

Politzer, Heinz. “Parable and Paradox: In the Penal Colony.” 5 3 & ($0
0 Ed. Leo Hamalian. New York: McGraw;Hill, Inc., 1974. 65;80.

Politzer, Heinz. 5 3 & ( + Ithaca: Cornell University Press, 1962.

Rajckman, John. / 5 ( 5 . New York: Columbia
University Press, 1985.

Reimann, Paul. “Kafka and the Present.” 5 3 & ($ $ / + 0 Ed.

Kenneth Hughes. Hanover: University Press of New England, 1981. 53;59.

Richter, Helmut. “Kafka’s Early ‘Conversations.’” 5 3 & ($ $ / +

0 Ed. Kenneth Hughes. Hanover: University Press of New England, 1981. 38;
50.

Robertson, Ritchie. & (A - - % Oxford: Oxford University Press,

1985.

Robinson, Martha S. “The Law of the State in Kafka’s ” $%*$ 5 6.2 (1982):
127;148.

Shklovsky, Viktor. “Art as Technique.” % ($ $ Ed. Julie Rivken and

Michael Ryan. Malden: Blackwell Publishers, 1999. 17;23.

Shumway, David R. / 5 Boston: Twayne Publishers, 1989.

Siegel, Everett. “Franz Kafka’s : Guilty or Innocent.” 9 65.3

(1996): 561;590.

Sokel, Walter. 5 3& New York, Columbia University Press, 1966.

Spann, Meno. 5 3& Twayne Publishers, 1976.

Spierenburg, Pieter. “The Body and the State: Early Modern Europe.” + !
( 8 * ? Ed. Norval Morris and
David Rothman. New York: Oxford University Press, 1995. 49;77.

Steiner, George. Introduction. By Franz Kafka. New York: Schocken Books, 1992.
vii;xxi.

173
Steinberg, Erwin. “The Judgment in Kafka’s ‘In the Penal Colony.’” A /
% 5 (1976): 492;514.

Stern, J.P., “The Law of .” & ( * 40 . Ed. Franz Kuna.

New York: Harper & Row Publishers, Inc., 1976. 22;41.

Sternstein, Malynne. “Laughter, Gesture, and Flesh: Kafka's ‘In the Penal Colony.’” /
6/ 8.2 (2001): 315;23.

Taleb;Khyar, Mohamed B. “Literature in Michel Foucault’s Writings.” #

% * ($A 0 1.2 (2000): 185;96.

Taylor, A.J.P. ! / 1=>24121=( $ ! $

$ ! London: Hamish Hamilton, 1957.

Thomas, J. D. “The Dark at the End of the Tunnel: Kafka's ‘In the Penal Colony.’” *
* 5 4 (1966): 12;18.

Van Dülman, Richard. ! (0 /

Trans. Elisabeth Neu. Cambridge: Polity Press, 1990.

Wagenbach, Klaus. & @ ($ " Trans. Shaun Whiteside. Woodstock:

The Overlook Press, 1996.

;;;. 5 3& ( % Trans. Arthur S. Wensinger. New York: Pantheon Books,

1984.

Weisberg, Richard. “Comparative Law in Comparative Literature: The Figure of the ‘Examining
Magistrate’ in Dostoevski and Camus.” " % " 29 (1976): 237;258.

Weinstein, Arnold. “Kafka’s Writing Machine: Metamorphosis in the Penal Colony.” *

0 % 7.1 (1982): 21;33.

Zatonsky, Dmitri. “The Death and Birth of Franz Kafka.” 5 3 & ($ $

/ + 0 Ed. Kenneth Hughes. Hanover: University Press of New England,
1981. 15;21.

174
 &' '

Carl Curtis was born and raised in the Pacific Northwest. In 1996, Carl received a
bachelor’s degree with a double major in literary studies and art history from Eastern
Washington University. He continued at EWU and received a master’s degree in rhetoric and
composition in 1999. In that same year, he enrolled in the humanities doctoral program at The
Florida State University.
Carl’s research interests include literature of place and regional writing. He has been
teaching writing, literature, and humanities at North Idaho College in Coeur D’Alene, Idaho
since 2002. Carl was awarded tenure in 2005 and has been a college senator since 2004.

175