The “Kafkaesque” in Judicial Reasoning: A Comparative Review of American and European Practices
The “Kafkaesque” in Judicial Reasoning: A Comparative Review of American and European Practices

Summary/Abstract: “Kafkaesque” perspective in judicial reasoning means, that law lacks intrinsic content. From this point of view, the conclusion can be drawn that both law and justice are empty in the context of Kafka’s reality. Just because of these essential characters, they exist only due to their internal paradoxes or reification. As a result, something with no real form or content acquires a “phantom objectivity” through its highly formalized and bureaucratic form which are the main features of a “Kafkaesque” situation. Therefore, justice and the law become reduced to their result or verdict, possessing no real content until they are presented to a person involved. Therefore, a law that Kafka writes about is given in their experience to people who obey the law but have no knowledge of its content. So, such an emptiness of law is one of the characteristics of “Kafkaesque”. That’s why for outsiders, the law is irrational and inaccessible. On the other hand, it would not be impossible to recognize that such a nightmare situation needs to be revealed to be avoided. In this regard, the method of deconstruction only performs functions of diagnosing law systems by identifying their becoming empty of any content. However, it needs to be considered that deconstruction is often mistaken for destruction. However, according to the view presented in this article, deconstruction means exposing the underlying meanings both as juridical practices and their theories. This is one of the reasons why “Kafkaesque” performs the function of deconstruction towards the law and the legal system exposing their very content. The function of legal deconstruction largely determines the legal value of “Kafkaesque”. Moreover, beyond deconstruction, it also embodies a (re) constructive function, manifested in promoting new principles of law.

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