Five years ago I wrote a post about dealing with requests from writers to destroy their unfinished (or other) work upon their death. It was sparked by the destruction of the recently passed Terry Pratchett’s hard drive by running it over with a steamroller, per his desire. As I wrote then:

The comments I read when the news came out was mostly amusement and pleasure at Pratchett’s wishes being so scrupulously honored. After all, if he was so specific as to how his literary executor was to deal with his unfinished work he must have felt fairly passionately about it never seeing the light of day. Who could argue that the right thing to do is precisely what the author wants?

I got to thinking about this again reading Richard Ovenden’s Burning the Books: A History of the Deliberate Destruction of Knowledge.

What I thought was going to be a particularly timely look at the social or political factors behind drives to ban books was actually a love letter to libraries and archives and the need for society to protect and support the collection and retention of knowledge. No great surprise, I suppose, given that Ovenden is the librarian at the famed Bodlean Library at Oxford.

In a couple of chapters, Ovenden discusses particular situations where authors either took affirmative efforts during their lives to destroy their unfinished work or asked executors/family to do the destroying once they were dead. In some instances (like Franz Kafka) it was unfinished work, where some others involved personal papers like letters or notes. Ovenden’s point of view is clearly that any loss of this information is a cultural travesty and implies that the heroes here are people who go against the wishes of their friends/loved ones and preserve their work anyway.

I get that, on the one hand. Destroyed knowledge is pretty much gone, after all, without any hope of getting it back. The world is undeniably richer for having Kafka’s unfinished work or the papers of someone like Sylvia Plath that gives insight into a writer’s life and process. But whose decision is it to make that determination?

The author’s wishes deserve at least some consideration, right? Maybe because in one side of my life I’m a writer and in another I fight battles to vindicate the Fourth Amendment and rights to privacy (usually unsuccessfully, alas), but airing things the original author never wanted to see the light of day seems like a violation. I’m not sure the world is entitled to anything the author doesn’t want to show it.

As is happens, after Burning the Books, I decided to read one of the most famous posthumously published works, Kafka’s The Trial.

I’d had it in my collection for a while but never got around to it. I’m glad I did, just to have been able to say I’ve read it. As a lawyer, you’d think it would be required reading, although the deep secret buried in The Trial is that there never is an actual trial that takes place. I sort of know that’s the point, but I expected a little bit more procedural chicanery – the kind of stuff that happens in regular courtrooms that get dubbed “Kafkaesque.”

The Trial definitely feels unfinished. My understanding is that the first and last chapters were actually written and designated as such by Kafka, but the rest was assembled by his executor, Max Brod, after his death. That said, it does have a memorable ending, so it doesn’t just peter out. I also found the atmosphere to be more dreamlike than nightmarish. The main character, K, is more frustrated and aggravated by the situation than he is terrified. In a way that makes it worse.

While there is no trial per se in The Trial, lawyers and the court system come off pretty badly. The part that stuck with me the most is a scene where K is in the court building and passes a group of litigants just huddled around not doing much of anything. It’s explained that they’re waiting for rulings in their cases, some of them for years, and that all they can do is continue to wait. That put me in mind of several of my clients who have watched their cases languish in court, just waiting for the judge to make a decision. They’d rather the judge get it wrong but actually get it done – at least then they could move on to the next phase of things.

My ultimate conclusion about The Trial is that I think K was dead the entire time. The suddenness of the accusation, the ultimate futility of fighting the charges, and the references to K needing to defend his entire life make me think that he’s in some kind of limbo (from which he’s ultimately released in the end). The way “the law” is discussed, too, sounds more like a religious concept than a purely legal one. It doesn’t ultimately matter, but it’s what jumped to mind while reading it.

Since I was on a Kafka kick, I decided to wrap things up with a book that dove more deeply into the battle over his literary legacy, Kafka’s Last Trial, by Benjamin Balint.

The titular trial here took place in Israel in this century and was a battle over where Kafka’s literary legacy would have its home. It stems from how Brod dealt with Kafka’s literary estate and whether it should be retained by the descendents of his secretary or should be taken into the National Library of Israel as a cultural treasure of the Jewish people (or even in an archive in Germany). The legal wrangling isn’t that interesting (it turns on technical distinctions between different kinds of gifts – you can read up on it here), but the question of legacy is really fascinating. There’s an entire chapter dedicated to the issue of whether Kafka was a German writer (though he lived in what is now the Czech Republic) who happened to be Jewish, or a Jewish writer who happened to write in German and what the answer to that question means.

Of course, that issue could be hashed out regardless of whether Brod had destroyed Kafka’s unfinished works as asked (assuming Kafka became a big enough name without it). And it would have avoided an awful lot of expensive litigation generations later. So, in the end, is it better to encourage executors, friends, and families to abide by the wishes of the writers who trust them to do so?

I’m inclined to think so, but I also think that the question may be moot. After all, once a writer is dead he or she isn’t going to know what their executors do one way or the other. One pleasant thing about death is you don’t have to worry about your reputation. Weighing all the considerations, maybe Brod was on to something in the first place.