Kafka's Last Trial

by Benjamin Balint

  This was to be the last case over which Kopelman Pardo presided. After twelve years on the bench, having with Kafka’s help reached the summit of her judicial career, she returned to private practice and started a boutique firm specializing in the area of inheritance and family laws. Eva told me she suspects that the judge retired not because of age, but because if she were no longer a judge she would be shielded from complaints that she had mishandled this case. But such suspicion seemed to derive from Eva’s own unhappiness with the result, rather than any professional missteps on Kopelman Pardo’s part.

  Aviad Stollman, who managed the Kafka file at the National Library, welcomed the verdict: “In view of the role of the library to collect, preserve and make accessible the cultural treasures of the State of Israel and the Jewish people, we see this as a great success.” Mark Gelber, a leading Kafka scholar at Ben-Gurion University, called it a “very courageous decision.”

  Brod’s literary estate, Eva said throughout the trial, carries far more than commercial value. Protesting that the manuscripts and papers “are like limbs of my body,” Eva refused Shmulik Cassouto’s offer to mediate a compromise. “She preferred risking an all-or-nothing approach,” Cassouto said. Eva gave me a different version: After Kopelman Pardo’s verdict, she proposed to sell the manuscripts to the Marbach archive and relay the profits to the National Library. The National Library declined, she said. “And they accuse me of profit-seeking!” She straightened her back as she said this.

  In November 2012, less than a month after the Family Court ruling, Eva entered an appeal at the Tel Aviv District Court. “Not even Kafka himself could have written such a Kafkaesque tale,” she said. She hoped to keep her phantom limbs.

  _____

  As the trial progressed from the Family Court to the District Court, moral pleading increasingly intruded into the legal proceedings. Attorney Meir Heller, representing the National Library of Israel, addressed a panel of three appellate judges of the Tel Aviv District Court—Isaiah Schneller, Hagai Brenner, and Kobi Vardi. Heller stressed Israel’s precedence over Germany as the proper place for the Brod and Kafka estates. In emotionally charged language, Heller noted that Kafka’s world was destroyed by the Nazis.

  Each of Kafka’s three sisters—“who loved and honored him as a sort of higher being,” as the writer’s niece Gerti Hermann recalled—fell victim to the Third Reich. Elli (the eldest, who reminded Kafka most of himself) and Valli (the middle sister) were deported to the Łódź ghetto in late 1941, and sent to the gas chambers of Chełmno in September 1942. Ottla, the youngest and most vivacious of the Kafka sisters, was deported from the Terezin ghetto 30 miles south of Prague to Auschwitz, Poland, where she was murdered in October 1943. Heller added that Max Brod’s only brother Otto, who also knew Kafka well, was deported from Terezin to Auschwitz in late October 1944, where he perished together with his wife and daughter.

  Heller might have added other victims of German crimes: Kafka’s lover Milena Jesenská, a Czech dissident married to a Jew in Vienna, murdered in 1944 in the Ravensbrück concentration camp; Kafka’s second fiancée, Julie Wohryzek, killed in Auschwitz in 1944; Kafka’s favorite uncle, Siegfried, who killed himself on the eve of his deportation to Terezin in 1942; and Kafka’s friend Yitzhak Löwy, the Yiddish actor, who perished in Treblinka. At least five of Kafka’s high school classmates were murdered in concentration camps.

  Kafka himself did not live to see human beings exterminated like vermin. But Heller suggested that had Kafka not died in 1924, had he reached his late fifties, he too would have been murdered by the Germans as a Jew. Is there not, Heller concluded, something obscene in the argument that the papers “belong” in Germany, the country of the genocidal perpetrators, the country that gave unprecedented mechanized form to man’s inhumanity to man? Kafka may have written in German, but not long after his death German became the language of those who organized the mass murder of Jews, the degraded language of the camps.

  Shmulik Cassouto, court-appointed executor of Esther Hoffe’s estate, said the Shoah “hung like a cloud over the courtroom.”

  _____

  On June 29, 2015, after two-and-a-half years of hearings, the three judges of the Tel Aviv District Court rendered their verdict. Justices Brenner, Vardi, and Schneller said they were not bound by Judge Shilo’s 1974 ruling in favor of Esther Hoffe. Since the National Library had not been a party to that case, the outcome of those proceedings could not set a precedent for the present case.

  The judges portrayed the appellant, Eva Hoffe, as “moved less by the fulfillment of Brod’s true wish than by the desire to profit from the assets of the estate.” They also condemned Esther Hoffe’s past sales of the manuscripts to the Marbach archive (discussed further in Chapter 14):

  Brod likely could not have imagined that those writings that he saw fit, for reasons that became clear, to give as a gift to his secretary Hoffe would be put up for public auction piecemeal and sold by Hoffe and her daughters to the highest bidder. As Brod himself boasted in a newspaper interview: “The whole world chases Kafka. I myself do not care: I will not take a penny for my work on his oeuvre. It is a debt I owe a distinguished friend!” Is it conceivable that Brod, were he asked, would give his blessing to this kind of auction?

  Had the Kafka material been part of Brod’s usual estate, they would go to his sole heir, Esther Hoffe (under paragraph 7 of his will, which designates her the heir of all his property). The judges ruled that because the Kafka material was part of Brod’s literary estate, however, Esther’s right to them was conditioned by paragraph 11 of Brod’s will, which instructed her to arrange for the deposit of his estate “with the library of the Hebrew University of Jerusalem [since renamed the National Library of Israel], the Municipal Library in Tel Aviv, or another public archive in Israel or abroad.”

  The District Court judges further ruled that Brod could be considered the owner of those of Kafka’s manuscripts that Kafka had given him in his lifetime, but not of the manuscripts that he had taken from Kafka’s desk after Kafka’s death. In the absence of other claimants, however, the latter group would be deposited together with Brod’s literary estate. At the same time, the court made no demand that an effort be made to locate Kafka’s heirs, nor did it list which of Kafka’s manuscripts belong in the former category and which in the latter. (Four of Kafka’s nieces survived the Holocaust: two daughters of his sister Ottla, Věra Saudková [1921–2015] and Helena Kostrouchová Davidová [1923–2005], both of whom lived in Prague; Gerti Hermann [1912–1972], a daughter of Elli who fled to Canada; and Marianna Steiner [1913–2000], a daughter of Valli who lived in London.*)

  The District Court judges also agreed with the lower court that Hoffe had not been entitled to sell off parts of Brod’s literary estate, or to give them as gifts, since Brod had wanted her to transfer his estate intact and in its entirety to a library or archive. Hoffe and her successors were entitled only to any royalties that Brod’s literary legacy would earn.

  Judge Brenner wrote the District Court’s opinion:

  The judges unanimously upheld the lower court’s decision: Esther Hoffe had no right to sell Kafka’s manuscripts, to give them away, or to bequeath them to her heirs. I believe and hope this court of appeal, on whose gates someone knocked, even if it did not bring redemption in upholding the lower court’s ruling, did offer a chance to open a door that will enable the public and history to judge Kafka’s works and to see them, after Kafka’s death, in all their great ethical and artistic worth—and not, as Kafka sometimes saw them in his lifetime, as “failed works” there was no point preserving. . . . It seems Max Brod would have rejected out of hand the possibility of his literary estate being transferred to an archive located in Germany.

  In his brief concurring opinion, Judge Kobi Vardi wrote:

  Just as Max Brod regarded his unobjectionable duty to publish the “wonderful treasures” of Kafka’s works as a consideration that overcomes any other consideration against the publication
of those works—and Kafka’s instruction not to publish them—so it is our duty and our right to fulfill this aim, through the legal tools available to us.

  Vardi added that the appellate court’s decision was “a fitting and just result that best expresses the integration of law, literature, ethics and justice—and, in my view, the true will of Kafka. Though some may argue that we have erred, everyone will at least agree that this is a remarkable Kafkaesque story.”

  In its language, the fifty-six-page ruling ranged across several registers, from technical legalisms to sweeping nationalistic rhetoric. In the end, it affirmed that Kafka was an essentially Jewish writer and that his literary legacy, as a cultural asset of national significance, properly belongs in and to the Jewish state.*

  _____

  As expected, the National Library welcomed the District Court decision. Stefan Litt, head of the library’s German-language archives, said: “The big question now is: What will we find in the Hoffe family’s Tel Aviv apartment, and what else may have been hidden elsewhere throughout the world?” He would have to wait. Shortly after the appellate court’s decision, police in Germany seized handwritten manuscripts of Max Brod on the suspicion they had been smuggled out of Israel.

  Eva Hoffe now saw no choice but to appeal to Israel’s Supreme Court. She entered the second and final appeal with no great optimism. The high court had already hinted which way it might lean. In June 2015, as the three judges of the Tel Aviv District Court were deciding the Kafka case, Israel’s Supreme Court was hearing a dispute concerning Europe’s second largest prewar Jewish community: Vienna. After the Second World War, members of the Vienna Jewish community (Israelitische Kultusgemeinde Wien) saw little future in Austria for their extensive library. (Its director from 1935 to the Anschluß in 1938 was Moses Rath, whose textbook Kafka had used when he began to teach himself Hebrew.) In 1952 and 1953, Israel’s National Library was permitted to pick out the choicest parts of the Vienna Jewish library and bring them to Jerusalem. This permanent loan amounted to 75 percent to 80 percent of that collection. The community’s invaluable prewar archives, meanwhile, dating back to the eighteenth century, were also brought to Jerusalem, on permanent loan to the Central Archives for the History of the Jewish People. (The Central Archives, founded in 1939, formally merged with the National Library of Israel in January 2013.)

  In May 2011, Ariel Muzicant, elected in 1998 to lead the 7,500-member Vienna Jewish community, filed a lawsuit in Jerusalem demanding the archives be returned. In October 2012, the Jerusalem District Court rejected the petition, accepting the argument of state archivist Yaacov Lozowick that Israel serves as the cultural center of the Jewish people.

  In June 2015, the Supreme Court upheld that decision. Justice Elyakim Rubinstein (who a year later would hear Eva Hoffe’s appeal) wrote: “What was done all over occupied Europe by the Nazis and their helpers during the dark days of the Holocaust is what caused the transfer of the material to the Jewish state, Israel, which arose from the ashes of the Holocaust—instead of it being tossed aside. In terms of history, hasn’t the archive found its rightful home?”

  Muzicant was appalled: “As much as we support the state of Israel as Jews,” he told me in a telephone conversation, “taking our property is totally unacceptable.” He compared Israel’s behavior in the present case with Austria’s reluctance, after the Second World War, to restore property looted from Jewish families. In both cases, culture produced by European Jewry belongs in its original context. Muzicant added that he asked the Federal Chancellor of Austria, Christian Kern, to raise the issue with Israeli Prime Minister Benjamin Netanyahu when they met in April 2017.

  Israeli Supreme Court Justice Hanan Melcer, the son of Holocaust survivors from Poland, concurred with Rubinstein, however: some “cultural assets” may be of such significance that even their legal owners have no right to do as they please with them. “This is the place to emphasize that the value of a ‘cultural asset’ is, for the most part, so great that even the person with the possessory or ethical right to it cannot order its destruction,” Melcer wrote. “To use an analogy, I will mention that, considering the fact that Kafka’s writings have been recognized as ‘cultural assets,’ there was no justification for obeying Kafka’s instructions to have his writings burned.” Although the case of the Vienna archives had ostensibly nothing to do with the case of Brod’s literary estate, the language of “cultural assets” would play a decisive role when the Supreme Court heard Eva Hoffe’s appeal.

  6

  Last Son of the Diaspora: Kafka’s Jewish Afterlife

  Pension Stüdl, Schelesen, Czechoslovakia

  November 1919

  I . . . have not caught the hem of the Jewish prayer shawl—now flying away from us—as the Zionists have.

  —Kafka, The Blue Octavo Notebooks, February 25, 1918

  The judges in Tel Aviv were hardly the first to attempt a posthumous recruitment of Kafka to the Zionist cause. Nor were the judges the first to read Kafka as an essentially Jewish writer, to read his works as monuments of Jewish culture, in the line of the teachings of Moses, Hillel, and Maimonides.

  Kafka’s friend Felix Weltsch set the tone in 1924 in a full-page obituary in Prague’s Zionist weekly Selbstwehr. “The soul that moved his writings was Jewish throughout.” Two years later, Weltsch opened an essay on his friend with a stark claim:

  Kafka was one of ours. He was a Praguer, he was a Jew, and he was a Zionist. His Zionism did not take on an explicit external form, but was expressed in his avid study of Hebrew and his firm intention to resettle in Palestine. Such was the case with all his convictions, which lay beyond the scope of external form and action. The essence of his work touches upon the deepest element of the Jewish Weltanschauung [worldview].

  Unlike Brod’s novels, suffused with Jews and Jewishness, in all of Kafka’s fiction, there is no direct reference to Judaism. One searches in vain for Jews, or Jewish patterns of speech, in Kafka’s placeless fiction. Unlike his contemporaries James Joyce and Marcel Proust, Kafka rigorously strips his characters of discernable ethnic identities, of awareness of their own origins and traditions, and more often than not of surnames. They are simply “the gatekeeper,” “the hunger artist,” “the father of the family,” or “K.”

  This lack of delineation has encouraged a universalist reading, as though Kafka’s art consisted in translating his own Jewish experience into universal language: the condition of the Jew as the plight of modern man überhaupt, “as such.” “Kafka is important to us,” W. H. Auden remarked in 1941, “because the predicament of his hero is the predicament of the contemporary man.” Kafka’s nameless heroes, Hannah Arendt wrote in 1944, “are not common men whom one could find and meet in the street, but the model of the ‘common man’ as an ideal of humanity.” It is no coincidence that one of the biographies of Kafka is called Representative Man. Julian Preece, a British scholar of Kafka, argues: “Kafka was first and foremost an internationalist and a European . . . the most cosmopolitan of all German-language writers.”

  But what if Kafka’s path to universalism led through Jewish particularism? Many readers have strained to unearth Jewish forms and motifs in Kafka’s works, to read his stories as allegories of the modern Jewish experience, and to portray his characters as quintessential Jews—both assimilated and cast out—surveying “the borderland between solitude and community,” as Gregor Samsa puts it in Kafka’s novella “The Metamorphosis.”

  The first and most influential of these readers was none other than Kafka’s closest confidant, Max Brod. After his encounters with Martin Buber at the Bar Kochba Association in 1909 and 1910 and his conversion to Zionism, Brod began to put Kafka’s writing under a Jewish light. As early as 1916, Brod wrote: “Although the word ‘Jew’ never appears in his works, they belong to the most Jewish documents of our times.”

  Later, Brod would insist that The Castle in particular overflows with “the special feeling of a Jew who would like to take root in foreign surroundi
ngs, who tries with all the powers of his soul to get nearer to the strangers, to become one of them entirely—but who does not succeed in thus assimilating himself.” (In his 1911 novel Jüdinnen [Jewesses], a love story set in the Bohemian spa town Teplice, Brod satirizes the figure of the assimilated Jew in the character of Alfred, a “lover of Wagner” who “belonged to those young Jews who are strongly attracted to all that is Aryan and despise everything Jewish.”) Brod read The Castle’s protagonist as a superfluous man (a term popularized by Ivan Turgenev’s 1850 novella The Diary of a Superfluous Man), equally estranged from God and from human community, continually in search of acceptance. (“I don’t fit in with the peasants,” says the wandering hero of The Castle, “nor, I imagine, with the Castle.”) “This is the meaning of Kafka’s religious socialism,” Brod writes, “which constitutes a significant part of his humanistic Judaism, whose fundamental meaning is the demand for justice. The fragmented, assimilated Jew cannot follow this ideal with full force. Only he who has become internally whole again, who has found his homeland, his ‘castle,’ is capable of realizing this ideal.” In this unfinished novel, Brod adds, Kafka “has said more about the situation of Jewry as a whole today than can be read in a hundred learned treatises.”

  Following Brod’s cues, other readers interpreted the animals in Kafka’s fables as symbols of Jewish exile, otherness, and self-alienation. The symbols—a bug (“The Metamorphosis”), ape (“A Report to an Academy”), dog (“Investigations of a Dog”), mole (“The Burrow”), jackals (“Jackals and Arabs,” published a month before the Balfour Declaration was issued), and mice (“Josephine the Singer, or, the Mouse People”)—were said to be all the more potent because the word “Jew” is left unsaid.*