Contemporary dialogues with fascist law and jurisprudence

Extract

It’s easy to miss the jokes in Kafka. Scholarship and biography have recast Kafka’s stories as self-referential parables of anomie written by a tortured neurotic who did not want to be read. In a cruelly accurate portrayal of how the academic and biographical industries can be a barrier to understanding, Alan Bennett’s play Kafka’s Dick satirises how biographical prurience over Kafka’s life has obscured the fact that he wrote simple stories, steeped in black humour, about myopic men vainly trying to do impossible things. The two books considered here – Law after Auschwitz and Darker Legacies of Law in Europe – follow Bennett’s theme. They share a desire to strip away received assumptions and counter-factual conjectures in order to explore fascist legal thought and activity on their own terms. On the way they offer interesting parallels with contemporary European law, medico-legal thought, administrative law, penal theory and so on. But, more simply, these books, like Kafka’s, recount the stories of men – self-styled members of the master race attempting to take over the world – desperate to analyse and systematise laws created by authorities who despise law. And failing. They failed to see that a war economy is not conducive to enduring legal reform. They failed to see that basing contract and criminal law on community feelings is going to be a frustrating business.