Acquired Innocence. The Law, the Charge, and K.'s Trial: Franz Kafka and Franz Brentano

An otherwise unpublished English version of "Das Gesetz, die Anklage...etc." cited elsewhere on this page

Wagenbach demonstrated Kafka's familiarity with unique conceptions, in the work of Brentano and his Prague followers, of natural law and ethics. Issues involved in these conceptions are cogently illustrated in The Trial.
K. is tried for violating a law which is no positive law but a necessary condition for all positive law since all positive laws imply that they ought to be obeyed.

Brentano adamantly rejected all forms of nativism. The opposite of 'natural' in the phrase 'natural law' is not 'acquired' but 'conventional.' Acquaintance with natural norms is entirely acquired: persons having no such acquaintance can exist; K. is such a person. Natural norms, have a cognizable inherent correctness; any other norms oblige only through being authoritatively decreed. Conventional guilt or innocence is subject to influence. K.'s quest for a person to exert such influence on his behalf is evidence of his guilt. K. is unaware that absolute guilt is possible.

In the Prometheus myth, a sense of justice and right is necessary for politically organized society. Without insight into the natural sanction for correct positive laws, citizens cannot fulfill the duty rationally to choose positive laws: citizens will wrong one another, cities perish, humankind will be threatened. The myth gives important clues to the imagery of the parable "Before the Law."

Every authentic act of willing requires that something be desired for its own sake. Since there is a plurality of intrinsic goods, authentic action requires recognizing the chosen action to be better than its alternatives. Acquaintance with good, evil, better, and worse is acquired, Brentano insisted, only by perceiving certain affects to be correct. Like judgments, affects are either blind or evident. Basic moral concepts arise like all others from perception.

K. could become innocent by acquiring the lacking concepts. Then, actual acquittal would be just despite his guilt when arrested. His trial tests whether he is likely to experience intrinsically correct emotions. Guilt would be objective, independent of any finding by the Court. K.'s guilt entails his lacking any such concept of absolute guilt. He is convinced that guilt depends entirely on the Court, is altogether a matter of authority. This is K.'s delusion concerning his relation to the Court and the Law, the delusion illustrated by the legend, "Before the Law."

"Das Gesetz, die Anklage und K.s Prozess: Franz Kafka und Franz Brentano"

published  in 'Jahrbuch der deutschen Schillergesellschaft,' Band XXIV, 1980 (Stuttgart:  Alfred Kröner Verlag, 1980) 332-356

INHALT:

1. DIE ANKLAGE GEGEN JOSEPH K. UNKENNTNIS DER NATÜRLICHEN SANKTION VON GESETZ UND SITTE

  a) Brentanos Auffassung vom Naturgesetz

  b) Natürliches Recht und menschliches Bedürfnis im »Protagoras«

2. RICHTIGE ENTSCHEIDUNG: BRENTANOS THEORIE DER ETHIK

    a. Der empirische Ursprung der Begriffe »gut« und »besser«: analoge Ableitung des Begriffes »wahr«

    b. Evidente und blinde Urteile: evidente und blinde Gefühle

    c. Tugend kann nicht gelehrt werden: der springende Punkt in K.s
Prozeβ

    d. Schuld und wirkliche Freisprechung sind logisch vereinbar

3. K.S FALL UNTER BERUFUNG: UNSCHULD KANN ERWORBEN WERDEN

4. K.S TÄUSCHUNG MIT BEZUG AUF SCHULD: DAS GLEICHNIS VOR DEM GESETZ


ABSTRACT
Wagenbach demonstrated Kafka’s familiarity with unique conceptions, in the work of Brentano and his Prague followers, of natural law and ethics. Issues involved in these conceptions are cogently illustrated in The Trial.
K. is tried for violating a law which is no positive law but a necessary condition for all positive law since all positive laws imply that they ought to be obeyed.

Brentano adamantly rejected all forms of nativism. The opposite of ‘natural’ in the phrase ‘natural law’ is not ‘acquired’ but ‘conventional.’ Acquaintance with natural norms is entirely acquired: persons having no such acquaintance can exist; K. is such a person. Natural norms, have a cognizable inherent correctness; any other norms oblige only through being authoritatively decreed. Conventional guilt or innocence is subject to influence. K.’s quest for a person to exert such influence on his behalf is evidence of his guilt. K. is unaware that absolute guilt is possible.

In the Prometheus myth, a sense of justice and right is necessary for politically organized society. Without insight into the natural sanction for correct positive laws, citizens cannot fulfill the duty rationally to choose positive laws: citizens will wrong one another, cities perish, humankind will be threatened. The myth gives important clues to the imagery of the parable “Before the Law.”

Every authentic act of willing requires that something be desired for its own sake. Since there is a plurality of intrinsic goods, authentic action requires recognizing the chosen action to be better than its alternatives. Acquaintance with good, evil, better, and worse is acquired, Brentano insisted, only by perceiving certain affects to be correct. Like judgments, affects are either blind or evident. Basic moral concepts arise like all others from perception.


K. could become innocent by acquiring the lacking concepts. Then, actual acquittal would be just despite his guilt when arrested. His trial tests whether he is likely to experience intrinsically correct emotions. Guilt would be objective, independent of any finding by the Court. K.’s guilt entails his lacking any such concept of absolute guilt. He is convinced that guilt depends entirely on the Court, is altogether a matter of authority. This is K.’s delusion concerning his relation to the Court and the Law, the delusion illustrated by the legend, “Before the Law.”

"Nicolai Hartmann: Proper Ethics Is Atheistic"

published in Phenomenological Approaches to Moral Philosophy. A Handbook (Chapter 2) edited by John J. Drummond and Lester Embree (Dordrecht; Boston; London: Kluwer Academic Publishers, 2002) 175-196

Multiple Heideggers? An Early, Still Prevalent Misreading

published in Current Studies in Phenomenology and Hermeneutics 1. An electronic journal (now defunct?) whose URL is http://ereignis.org/csph/edboard.htm

Since the earliest commentaries on Heidegger's Being and Time, its theory of judgment and of propositions has been widely misrepresented as relativistic, psychologistic, anthropologistic, pragmatic, etc. Even Edmund Husserl allowed himself to be persuaded to this point of view, to the great detriment of his phenomenological movement. And most of Heidegger's interpreters, whether friendly or hostile, have adopted this point of view, which normally includes the notion that there can be no fundamental difference between circumspective and apophantic forms of explication. This misreading ignores important aspects of the theory of propositional explication in Being and Time, ignores the fact that forms of interpretation would not be genera or species of interpretation, and is a clear instance of genetic fallacy. Yet it pervades the literature on Heidegger still.

"Hartmann, Schutz and the Hermeneutics of Action"

published in  in 'Axiomathes,' 12 (2001) 327-338

Hartmann's way of conceiving what he terms "the actual ought-to-be (aktuales Seinsollen]" offers a fruitful approach to crucial issues in the phenomenology of action. The central issue to be dealt with concerns the description of the "constitution" of anticipated possibilities as projects for action. Such these are termed "problematic possibilities" and are contrasted with "open possibilities" in most of the works published by Husserl as well as those published by Alfred Schutz. The description given by Alfred Schutz emphasized that the projecting of possibilities is thoroughly conditioned by the agent's habitual beliefs and interests. Schutz, however left open the possibility that other factors might affect the projecting of courses of action and the choosing of one in preference to others. In particular, he left open the possibility that the agent come to take an interest in possibilities in which she had no prior interest. More recent interpretations of his position on this issue have left this possibility undiscussed or else excluded it altogether. The result has been that a sort of value nihilism (subjectivism, sociologism, lingualism, anthropologism, historicism, psychologism, etc.) came to prevail in the phenomenological description of actions.

A quite parallel development occurred in interpretations of Heidegger's account of actions (of "explication [Auslegung]" in the vocabulary of Being and Time). Heidegger expressly and emphatically rejected most ways of conceiving values in discussing the forms of action (circumspection and assertion in the vocabulary of Sein und Zeit). it came quite generally to be assumed that he subscribed to some variation of nihilism regarding values despite his insistence in the "Letter on Humanism" that he meant no such thing. The literature' on this subject has concentrated on Scheler's work to the complete exclusion of Hartmann's axiology — as happened in Parvis Ermad's Heidegger and the Phenomenology of Values, His Critique of Intentionality, foreword by Walter Biernel (Glen Ellyn, Illinois: Torey Press, 1981). Scheler's view entails the radical separation of ontic traits from axiotic traits, of what-is from what-ought-to-be. However, for Hartmann, the set of ontic traits that becomes actual when laws about what-ought-to-be are satisfied is identical with the set of traits that ought-to-be,

Hartmann's way of conceiving the ought-to-be, the actual ought-to-be, and the three-fold structure of the finalistic nexus seems entirely compatible with Heidegger's way of thinking about actions. They are also an enlightening supplement to Schutz's description of "Choosing Among Projects of Action" (in Collected Papers 1, 67-96). That description requires that choice and action be thoroughly conditioned by psychological, social, and historical facts about the agent. However, nothing of this vital determination of actions is sacrificed when these concepts that are so central to Hartmann's "absolutism" with respect to values are introduced into the description.

Their introduction provides an elaboration that Schutz himself neglected, perhaps due to pragmatic deference to biases which were prevalent then in the intellectual climate of philosophy and sociology in the U.S. Still, the transformation they bring is a significant improvement. It shows decisively that being conditioned linguistically, psychologically, socially, and historically does not enclose the choice among projects within a "Hermeneutical Circle" such as would exclude the possibility that agents be open to previously unfamiliar values. Hartmann's conception of the plurality as well as the absoluteness (or "objectivity") of primary goods allows: put in Kantian terms, that an agent may, however rarely, take an interest in possibilities such as she may never before have been interested in at all; or, put in Heideggerian terms, that she may come to care about possibilities such as have never concerned her before.

Das transzendentale Ich als Seiendes in der Welt

published in 'Perspektiven der Philosophie', 5. Band (Amsterdam:  Editions Rodopi, 1979) 189-205. An unpublished English version of this essay is cited elsewhere on this page..

Time and Formal Authenticity: Husserl and Heidegger

published as Chapter 2 in The Many Faces of Time, ed.John B. Brough and Lester Embree (Dordrecht; Boston; London: Kluwer Academic Publishers, 2000).

Husserl’s transcendental conception of the relation between time constitution and immanent time was still very far off conceptually when he delivered the 1905 Time Lectures. The conceptual framework of his General Introduction to Pure Phenomenology[1] of 1913 maintains that the status of all mental processes (or lived experiences, Erlebnisse) as occurring in the flux of immanent time is achieved through constitutive functions which cannot be authentically understood as occurring in time at all even though they also are bound to be identified as occurring at the present moment in the constituted flux and the flux as occurring to and through the lived body and the lived body as belonging to the life-world. The flux is, therefore, necessarily intended as belonging to world-time. The flux of mental processes and immanent time itself, therefore, are constituted, and the syntheses through which they get constituted do not occur in the flux or in immanent time. Through such synthetic transcendental occurrences, the self makes itself be in time and in the world. Accordingly, the transcendental subject coincides only partially with the subject in the world, but it does so necessarily and <38> can exist only by doing so, by “making” itself be in the world. If vast differences in nomenclature are overlooked, this later position is close in many ways to[2] the one Martin Heidegger was developing when he was engaged in editing the 1905 lectures for their first publication. For the relation of conditioned to conditioning here is mutual; the subject’s constitutive or transcendental functions are dependent upon the given “contents” whose temporal being they constitute. Moreover, there is in truth only one ego, the one that is in the world and is in it at all only by making itself be in time and in the world.
It is a vast improvement over the position of 1905 when Husserl later conceives immanent time to be entirely continuous and to be so through a complex of syntheses that occur as aspects of a single continuous identifying synthesis that enables it passively to constitute the flux of lived experiences as immanent time with its individual temporality or individual time-form, its being in time. Thus, Husserl came to conceive every mind or self to be constituted with its own unique time-form regardless of whether or not any of the lived experience occurring in the flux of immanent time is both doxic and active, i.e., is of a sort which alone can constitute categorial form. The later conception understands the “pure ego” to be a simple unity which this underlying synthesis achieves in a purely passive way so that there may exist egos whose mental lives include not even the obscurest awareness of logical or categorial form.