Federal Judiciary

Kafka on the US Justice System

Franz Kafka, who was a lawyer by training, provided a fascinating description of our legal system in his short parable "Before the Law." In it, a fellow comes to the gate of the Law, and is met by a gatekeeper who won't let him in. The fellow does all he can to placate the gatekeeper, but to no avail. Years pass, the petitioner turns old and weak, and as he is about to die, he asks the gatekeeper, why isn't there anyone else at the gate to the Law? "This gate was for you alone," the gatekeeper answers. "Now that you are dying, let me go lock it."

This hits the nail right on the head. The petitioner reads legal documents like the Constitution and the statutes enacted by legislature – and, being a rational creature, thinks he actually has the rights those documents grant him. When he finds those rights violated, he goes to his gate of the Law by filing a lawsuit to have his violated rights restored to him. Because his complaint points at the applicable statute, he thinks he is in the right.

And he sure is – except that what he says is of no consequence, for human law, unlike the law of nature, does not get enforced automatically. For violated rights be enforced, a human agent called "judge" has to order it done.

The judge is thus the buffer in front of the law, a gatekeeper without whose consent the Law, no matter how clear, obvious, and explicitly spelled out the statute book accessible by all – cannot be reached.

Yes, the Law is so close; you can see it, you can point at it, you can appeal to it – but you cannot have it.

Why? Because the gatekeeper – the judge – sees things very differently. You think your argument is stronger than your opponent's? Don't let it get to your head – when Judge Charles Lettow of the US Court of Federal Claims has your case, he will tell you "sure, if your opponent argued what he had argued, you would have won. But because the opponent had argued something entirely different from what he had argued, you lose."

Or, if you are in Judge Eric Vitaliano's Eastern District Court of New York, he will tell you "of course, if you argued what you had argued, you would have won. But because you had argued the exact opposite of what you had argued, you lose."

Try to appeal, and Judges Jacobs, Katzmann, and Livingston of the Second Circuit Appeals Court will tell you "why, what those judges did is fine." Sue the judges themselves for the obvious fraud they are so obviously engaged in, and you will be told by Judge Nicholas Garaufis of the Eastern District Court of New York that substitution of argument with its exact opposite is "a classic exercise of the judicial function," and by Judge Buchwald of the Southern District Court of New York that judges are "not so tightly cabined" as to not be able to substitute parties' argument with their own imaginings.

And so it goes – the Law is there, visible to all – and the judicial gatekeepers stand vigilantly, in closed and deep ranks, blocking every approach.

There is a good reason why Kafka is one of the greatest – if not the greatest – writers of all times.

Don't you agree?