Before the Law is a parable, that explores the shortcomings of a failed legal system. The story is of a young man who actively seeks out the law. He comes face to face with a gatekeeper, who barred his entry. He is given the option to wait or enter without the permission of the gatekeeper and face unknown horrors. The man places his trust in the gatekeeper and chooses to wait. Years pass but the man is still not admitted, he begs, bribes, curses his fate but is not given entry until his dying breath[1]. There is no one correct interpretation of the parable. Kafka withdraws information from the readers on purpose, with the motive of helping us truly understand the parable. He puts us in the position of the man, seeking answers that do not exist. The parable fits into the typical dystopian and paradoxical nature of Kafka’s works[2]. The different layers in which the parable transcend the fictional and metaphorical realms and trends similar to it can be seen in society.
The idea of Biopower[3] theorized by Michel Foucault is closely related to the parable. Foucault through this concept tries to answer the question of what exactly happens when one person exerts power over another. According to Foucault this biopower was distinct from Juridical power, or power of the law. It didn’t threaten violence but rather direct and control their wishes and desires. He exposed the complexities associated with assembling answers to these questions when he engaged analytically with the discursive and institutional traces inscribed by multifaceted relations of power on ‘the living’.[4] The effects of this concept are distinctly visible in the parable.
The establishment of a power dynamic between the gatekeeper and the man is evident from the very start. The gatekeeper maintains a position of power and control. This allows the guard to exert his control and will upon the man, which is his biopower. This exertion of power doesn’t affect the man physically but affects his future choices. In this case his choice to disobey the guard and force or sneak his way into the law is affected. The gatekeeper uses his power to incentivize the man to obey him, saying that he ‘may’ let him in later. This incentivization makes the man agree to the gatekeeper’s vague promise, to not take the risk and enter the law. The man is under such great control that years and decades pass, he gives up all his possessions but still doesn’t try to disobey the gatekeeper. This is clearly the effect of the gatekeeper’s biopower. He doesn’t threaten violence or punishment, i.e., use of juridical power. Instead, he uses his biopower to change and influence the desires of the man. Although his desire to enter the law wasn’t altered, it was certainly influenced by the gatekeeper.
According to Foucault knowledge and power have always been interlinked. Foucault termed this inter-relation as ‘power-knowledge’.[5] Power knowledge as a concept deals with the idea that institutions which create and contain knowledge also hold power over others[6]. His analysis of the concept is best explained by the classic Bentham’s panopticon penitentiary.[7]The design of the tower doesn’t allow for the inmates to know if they are being watched, while the guards could be watching the inmates at all times.[8] The inmates are punished for any form of misbehaviour. The guards are given access to knowledge that the inmates can’t possibly have. This by default puts them in a position of power over the inmates. This uncertainty of always being watched leads the inmates to temper their actions, as though they were being watched. This threat of punishment creates an internalized fear which leads to compliance with the institution. Putting this into perspective of the parable, the law as an institution produces and safeguards knowledge. By the same argument it also possesses power over others. Both the man and the gatekeeper are subject to the law’s power. The man cannot enter the law without the gatekeeper’s permission. The man respects the authority of the gatekeeper who serves that law. The law also controls the gatekeeper as even after many years the gatekeeper doesn’t leave his post and is forced to stand guard until the man’s death. The case of ADM Jabalpur v Shiv Kant Shukla[9] provides a real-life instance of the power exerted by law. The case, famously known as the habeas corpus case deals with the violation of one’s fundamental rights that every citizen is entitled to under article 32, during an emergency. The matter was produced before a panel of judges in the supreme court. The arguments boiled down to one fundamental issue, whether the constitution of India provides these rights to the citizens or whether it simply re-iterates them. The majority decision in the case was that there exist no rights outside the constitution. Since during an emergency the fundamental rights of a person are suspended by presidential order, therefore rights like right to life cannot be enforced during such times. The rule of law as we know it in times of normalcy stands suspended in these exceptional circumstances.[10]
Justice HR Khanna was the only dissenting judge in the case. His argument was a more Kantian analysis of the situation at hand. He believed that there exists a right to life outside of Article 21. The President’s order does not prohibit one from enforcing this right. Consequently, there exists a remedy that can be provided to the detainee. The rule of law cannot be suspended at will. The rule of law is antithetical to arbitrariness. Allowing it to be done away with at will results in its unacceptable negation.[11] He believed that all individuals are born with rights and that they are separate from the constitution, i.e., the constitution doesn’t provide rights to the individual, he is born with them. However, he paid heavily for this dissent as he was denied the appointment of Chief Justice. This shows how the law held power over not only the applicants in court but also the judges serving the law. Much like the gatekeeper the judges in the matter were subjects of the law. Any disagreement in such matters was met with punishment as seen in the case of Justice Khanna.
In Law and disorder in the postcolony, Jean and John Comaroff talk about how lawlessness, has evolved from physical violence and crime to white collar crime, often enabled or supported by the government. They talk about a “Hobbesian nightmare of dissipated government, suspended law, where the lines between the political and the criminal is fast eroding.” [12]The emergency of 1975 is an ideal example of what Comaroff calls Lawfare, the resort to legal instruments, to the violence inherent in the law, to commit acts of political coercion, even erasure and how such actions are extremely prevalent in postcolonies.[13] The emergency declared by the government was the cause of tremendous violence and disregard of human rights, be it the countless men and women thrown in jail or the forced mass sterilisation campaign. The press was censored and members of the opposition were silenced by being thrown behind bars, leaving the ruling party to have totalitarian and dictatorial control over the nation. This is characteristic how law and government are sometimes instrumental in creating violence and unrest.
Comaroff also talks about how politics has entered the law[14]. The verdict of the ADM Jabalpur case is a clear representation of the inability of the law to address these crimes and provide justice to the citizens. The verdict given by the court is Kafkaesque in a certain sense. The parable and the novel from which it is excerpted is a critique on the notion that the legal system is angelic and without its flaws. Like many of his other works, Kafka seeks to expose the bureaucracy and red tapism that plague the legal system. He aims to prove that the fundamental goal of the legal system is flawed, its purpose is not to deliver justice but to perpetuate its existence[15].
Comaroff also talks about ‘fetishizing the law’ and its extent in that in postcolonies[16]. ‘The Law’, as stated in the text is imbued with powers, to the point where it becomes an idea of worship. This is evident from the comparison of law to walls and structure, protecting the propertied from the lawless. Comaroff compares law in the postcolonies to the literal structure of society, a pillar that upholds the ideals and values of society. This theme too, can be seen in the parable. The law, has its own sets of rules and regulation that are meant to uphold the order of society and those who disobey them are punished. The law is able to restrict our individual autonomy and influence our decisions when it deems it to be necessary. This can be seen in the case of the man whose freedom to enter the law is restricted by the gatekeeper.
References-
[1] FRANZ KAFKA, THE TRIAL, 254-61 (David Wyllie trans., Dover Publication 2009) (1925)
[2] Kayla Leung, Franz Kafka’s Before the Law, ANYTHING IS POSSIBLE, (May 16, 2016), (Last accessed-Sept. 23, 2020, 12:49 PM), https://itspossiblelab.com/2016/05/16/kafkas-before-the-law/
[3] Then&Now, Foucault: Biopower, Governmentality, And The Subject. YouTube (Sept. 23, 2020), (Last accessed- Sept. 23, 2020, 1:02 PM) https://www.youtube.com/watch?v=AXyr4Zasdkg
[4] Kay Peggs & Barry Smart, Foucault’s Biopower, in After Foucault: Culture, Theory, and Criticism in the 21st Century 61–76 (Lisa Downing ed., 2018).
[5] Michel Foucault – Foucault’s ideas, Encyclopedia Britannica, https://www.britannica.com/biography/Michel-Foucault (Last accessed- Dec 5, 2020, 2:35 PM).
[6] Gerald Turkel, Michel Foucault: Law, Power, and Knowledge, 17 Journal of Law and Society 170–193 (1990), https://www.jstor.org/stable/1410084 (Last accessed-Dec 5, 2020, 5:30 PM).
[7] West, S. (2018). Episode #121 … Michel Foucault pt. 1. [online] Apple Podcasts. Available at: https://podcasts.apple.com/in/podcast/philosophize-this/id659155419?i=1000417823195 (Last Accessed-3 Dec. 2020, 12:45 PM).
[8] Id
[9] ADM Jabalpur vs Shivkant Shukla (1976) 2 SCC 521
[10] Id
[11] Id
[12] Jean Comaroff & John L Comaroff, Law and disorder in the postcolony (2006)
[13] Id
[14] Id
[15] TED-ED, What Makes Something “Kafkaesque?”- Noah Tavlin , YouTube (Jun. 20, 2016), (Last accessed- Sept. 23, 2020, 12:55 PM) https://www.youtube.com/watch?v=wkPR4Rcf4ww
[16] Supra note 12
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