When Mr. Brod fled to Tel Aviv from Prague on the last train out in 1939 as the Nazis rolled in, he had with him a suitcase full of Kafka’s documents.

Here, he took up with his secretary, and when he died in 1968, he bequeathed to her the remaining Kafka papers, as well as his own from a rich cultural career. For nearly 40 years, the secretary, Esther Hoffe, held the world of Kafka scholarship on tenterhooks, keeping the documents in her ground-floor apartment on Spinoza Street, some of them piled high on her desk (it was originally Mr. Brod’s), where she typed all day and took her meals.

The last time a scholar was permitted into the apartment was in the 1980s. Later, Ms. Hoffe sold the manuscript for “The Trial” for $2 million. No one knows what remains.

Since her death last year at age 101, her 74-year-old daughter, Hava, has indicated that a decision about the coveted papers will be made in the coming months. While most of the Kafka estate is already in archives in the Czech Republic, Britain and Germany, some may still be inside the scuffed front door of the Hoffe apartment.

Lior's article, The Right to Destroy, 114 Yale L.J. 781 (2005) (SSRN version here, final published version here) argues:

I submit that the K papers and manuscripts should be destroyed, on the basis of any of four rationales. . . .

First . . . A society that does not allow authors to have their draft works destroyed posthumously could have less literary product than a society that requires the preservation of all literary works not destroyed during the author’s life. Protecting authors’ rights to destroy should encourage high-risk, high-reward projects, and might prevent writers from worrying that they should not commit words to paper unless they have complete visions of the narrative structures for their work. . . .

Second, we might accept an economic rationale. . . . K has an economic interest (via his concern for the welfare of his beneficiaries) in assuring that the value of his published works is not diminished by the conceivably inferior quality of the unpublished works.

Third and relatedly, . . . By destroying his unfinished works, K may wish to send a message to the public that he is not the type of artist who will tolerate, let alone publish, inferior works. . . .

Finally, . . . . If a court decides to bar Brod from destroying K’s unpublished works, it is forcing the departed K to speak when he would have preferred to remain silent.

I don't want to take on Lior's arguments in this post, as I find myself greatly torn over the issue. Respecting the privacy and final wishes of the author is a very important value, but there is also enormous social benefit from society's having an author's papers. Imagine if Kafka's wishes had been granted. Nobody would know of The Trial or The Castle, two of the greatest works of literature ever penned. Maybe there should be a special exception for Kafka since his works are so great. . . .

But there's another interesting issue in Kafka's request to Brod. Lior explicitly states that he is assuming, for the sake of his analysis, that Kafka's instructions to Brod were "unambiguous." But Kafka's instructions were, in fact, not so clear. In a recent book, Why You Should Read Kafka Before You Waste Your Life (2008), James Hawes attempts to deflate many myths about Kafka. Kafka wrote two "wills" to Brod. In his writing desk, Kafka left the following instruction:

Dearest Max, my last wish: Everything that I leave behind in the way of diaries, manuscripts, letters of my own and from others, drawing, etc. (whether in my bookcase, clothes cupboard, writing desk at home or at the office, or in any other place anything may have gotten and you find it) should be burned, completely and unread, as should everything written or drawn in your possession or in the possession of others whom you should ask, in my name, to do likewise. People who do not want to hand over letters to you should at least be made to promise that they themselves will burn them. Yours, Franz Kafka.

Kafka wrote Max another letter shortly before his death, listing his published works and saying that "only the following books count" but that :everything that exists in the way of my writings (publications in journals, manuscripts and letters) is without exception inasmuch as it's possible to get hold of it . . . . all this, without exception, is to be burned and you are asked to do this as quickly as possible by me, Franz."

Hawkes contends, and I agree, that Kafka "didn't mean a word of it." Hawes writes:

Kafka was a lawyer. He knew very well what a binding legal document looked like and that neither of these supposed wills was remotely a real one. Brod claims that he'd even told Kafka flat out, at the time of his first will, that he wouldn't carry out the instructions.

Brod was Kafka's best friend and greatest fan. Brod had helped to establish Kafka's reputation as an author, and it was ironic to ask him to destroy the works. Kafka had shown Brod The Trial and back in 1919, Brod even joked with Kafka that Brod would finish it when Kafka's publisher was demanding novels instead of stories from Kafka.

Kafka was a master of irony. His request to Brod, understood in the context of his work, diaries, and letters (much of which, even more ironically, were subject to his request to burn), is typical Kafka. He was asking the man whom he knew never would burn his papers to do so. He could have asked others to carry out his bidding, but he chose Brod. As in all his works, Kafka raises complex issues of interpretation.

The Hawes book is an interesting read, as it attempts to debunk many myths about Kafka. Among the myths are that Kafka was unknown in his lifetime, that he lived a lonely life, and that he was poor. In fact, Hawes points out that Kafka was well-received in literary circles. Kafka had an active social life. Kafka did have dysfunctional relationships with women, a phenomenon Hawes attributes to Kafka's deep ambivalence about being married and raising a family (which Kafka was afraid would take away time from his writing). Kafka made a very good living and was successful at his job. Hawes also notes that although many view Kafka's living at home for most of his adult life demonstrated that he was a failure, this was in fact the norm for young unmarried professionals. People envision Kafka as a tiny gaunt figure, but he was for most of his life in good shape and was quite tall -- about 6 feet tall, which was much taller than average at the time.

Hawes does go a bit overboard at times, contending that Kafka's Jewishness had little influence in his work. In fact, Kafka's works are suffused with countless tropes, images, and references to Judaism. Kafka wasn't a particularly religious man, but he was fascinated by Judaism and studied it extensively. Hawes also makes much of Kafka's porn collection, using it as a way to deflate critics whom Hawes think put Kafka on too much of a pedestal. The porn consisted mainly of illustrations from a journal called The Amethyst, which seems to have been a literary journal that published "edgy fiction" and erotica. The illustrations, some of which Hawes reproduces in his book, are a little weird, but seem much more arty than pornographic. Hawes seems to be a bit too obsessed in attacking his conception of the Kafka critic who views Kafka as an asexual individual, a pure soul devoted solely to abstract ideas. Such critics do exist, but much commentary about Kafka does not view him in this caricatured manner. Nevertheless, despite Hawes' tendency to overclaim, his book is very entertaining and illuminating about Kafka. Too bad it is marred by Hawes' rather obnoxious tone, as the one-and-only myth-slayer designed to bring Kafka back to earth.