The judicial system is an institution which governs every individual’s actions, and has coercive capabilities to enforce social norms and mores. These social norms and mores reflect the general interest of society to a large aspect. However, as society changes, what happens when the law is too inflexible to keep up with it? This scenario is vividly illustrated by Franz Kafka in “In The Penal Colony”, where the Officer, a high-ranking military personnel, stubbornly refuses to recognise the moral evolution that has taken place in society. The old military law is embodied in him, and by the new standards of morality, is unjust as he sadistically tortures and executes military offenders without trial. This idea of a new standard is shared by the Traveler, a “distinguished foreigner” (212) who has been “assigned to investigate judicial operations in all countries” (213), and believes that “the injustice of the procedure and the inhumanity of the execution [are] beyond all doubt” (207). This new attitude causes the Officer’s style of implementing justice, or injustice in this case, to rapidly lose support from the penal colony, but he rigidly tries to “preserve [the old law] as it is” (209). On the other hand, a similar critique of the law can be found in “Of Experience”, a series of journal collections by Michel Eyquem de Montaigne. A simple agreement in regard to the undesirability of having inflexible laws can be found in these two texts. However, I shall demonstrate that Montaigne’s argument is a limited one, and that Kafka’s subtle portrayal of the Officer extends Montaigne’s argument, supplementing it with a more complex and deeper critique on the inflexibility of the law.

Montaigne’s “Of Experience” is a colourful article that describes his personal philosophy of wholesome living through the use of vivid, enlightening, and humorous examples from his private life. He encourages his readers to lead a natural and self-empowered lifestyle, and spends much of the first part of his article criticising the concept of the law, which he believes is an obstacle to this lifestyle. One such criticism he makes is that the law is inflexible, and is consequently unable to reflect changing trends in society. Montaigne draws a dynamic picture of society, with its values and behaviour constantly evolving due to the “infinite diversity of human actions” (816). From here, Montaigne concludes that “there is little relation between our actions, which are in perpetual mutation and fixed and immutable laws” (816). Problems would arise because these “fixed and immutable laws” (816) would be ineffective in governing our actions, which are evolving constantly. This argument is interesting as it throws light on the fact that our actions change, and that the law must keep up with it. However, Montaigne does not offer any explanation on why the law is “fixed and immutable” (816), and this limits the strength of his argument.

Like Montaigne, Kafka also believes that the judicial system needs to reflect changes in society to be effective, and describes one such change that has occurred in the penal colony. In “In The Penal Colony”, the Officer recounts the bustling spectacle surrounding an execution in the past, and says:

The entire valley was mobbed a whole day in advance: they all came just to watch [the execution]. Early in the morning, the commander showed up with his ladies; fanfares awoke the entire camp; […] all the spectators stood on tiptoe as far as the hills. […] What wonderful times, my friend!  (210-211)

Here, we see that executions attracted a great amount of attention and support from the public and its leaders, and that the system of the law was held in high regard.  However, this attitude has changed, and “hundreds of people no longer gather round the pit like flies, as they used to do” (211). This change is also reflected in the leadership of the colony, where a new commander “has shown some desire to interfere in [the Officer’s] court” (199) by making it difficult for the Officer to maintain the machine used for executions. This new commander is “no supporter of this procedure and [is] almost hostile toward[s] the officer” (208). Unlike the past, the citizens of the penal colony in the present “[no longer have] all that much interest in [the] execution even within the penal colony” (191), and this is due to the change in their attitudes. This change in society appears to be a one-off event, and Kafka does not indicate if this is due to what Montaigne would call the “infinite diversity of human actions” (Montaigne, 816). However, even if both authors differ in their views on what causes change in society, a change is nevertheless still a change, and they agree that the law must be able to reflect these changes. Montaigne stops short of explaining why the law may be inflexible, and Kafka extends Montaigne’s argument by suggesting three reasons for this through the portrayal of the Officer’s actions – an excessive obsession with perfection, a strong and even deluded longing for the past, and a misguided conviction of the public’s immaturity.

            The first reason is evident in the Officer’s obsession with implementing justice perfectly, and this causes him to display intolerance towards any deviation from the old law as this would undermine perfection. This obsession can be seen in his enthusiasm towards the torture machine, the instrument for implementing judgement, when he boasts that he “assisted in the very first tests and […] was involved in all the work until [the machine] was perfected” (emphasis added, 193). Thus, the Officer believes that perfection has already been attained, and “chores that could have actually been left to a mechanic” (192) were performed by the Officer “with great zeal […] because he was a strong supporter of this apparatus” (192). Although someone of a lower rank could have taken up the task of maintaining the machine, the Officer handled the machine personally so as to prevent anyone from ruining its perfection which the Officer “simply spared no effort” (201) and “was practically a spendthrift” (207) in its maintenance. The Officer fusses excessively over minor flaws in the machine, such as that of having torn or inferior straps, which could easily be replaced with a chain. When the condemned man vomited onto the machine, the Officer lamented that his “machine [was] being soiled like a stable!” (208), and ignored his duty of looking out for the well being of the condemned man. These minor disturbances in the usage of the machine are scorned upon by the Officer, and his obsession with maintaining perfection causes him to disallow any deviation from the system. Because of this, the Officer rigidly rejects new ideas which may enable the law to better reflect changes in society.

            The Officer has worked hard in an attempt to attain perfection for the law and longs for the past, where strong communal support was given to his efforts and the old law, so much so that he deludes himself into believing that a supernatural revival of the old law would occur in the near future. This strong longing is evident in the Officer’s nostalgic recollection of the past. He vividly glorifies each element in the execution, and describes the past as “wonderful times, my friend!” (211). Furthermore, he gets so carried away with recounting the past that he “had obviously forgotten whom he was dealing with; he had thrown his arms around the traveler and placed his head on his shoulder” (211). This enthusiasm and affection for the past is so strong that the Officer believes the Old Commander would resurrect and revive the old law. The Old Commander, the initiator of the old system, is a figure that represents the Officer’s outdated judicial system, and he “alone deserves credit for the invention” (193). The Officer is so caught up in the past that he believes in “a prophecy [which states] that the commander will be resurrected after a certain number of years and lead his followers […] to reconquer the colony” (228). It is obvious that the Officer is deluded about the revival of the old law, and this is amply illustrated when “he even [tries] to dig the [the dead commander] up at night” (227) from his grave. The Officer’s delusion persists despite knowing that the New Commander is “firmly set […] that the end has come for this procedure” (214). Therefore, the nostalgia possessed by the Officer entrenches this delusion firmly in his mind, and inevitably causes him to refuse to abandon the old law which has become inconsistent with the new standards of human decency. The law thus becomes inflexible due to the rigid and deluded abidance to the past.

            The belief in old traditions is so strong that the Officer looks down at people with views contrary to it, and rejects them immediately as immature notions. When the Traveler tells the Officer that he “oppose[d] this procedure” (218) of implementing justice, the Officer merely displays amusement by “smiling the way an old man smiles at a child’s nonsense but hides his true thoughts behind the smile” (219). He sees no point in correcting the inane foolishness of the Traveler’s opposition, and chooses to “[hide] his true thoughts behind [a] smile” (219). Also, through his condescending attitude, the Officer’s sense of superiority over other people’s opinions can be detected. The old law is seen as one that is more mature, and new attitudes in society are likened to that of a child’s folly. This theme of opposing views as immature thoughts is once again manifested when the Officer says that the drawings for the machine’s design is “no calligraphy of the schoolchildren” (emphasis added, 203). Therefore, the Officer sees himself as more mature and wise, thanks to the “age” of his views, and gives credence to his own opinions. By rejecting opposing views based on this attitude, the Officer thus causes the old laws to persist and display unresponsiveness towards public opinion.

Both Kafka and Montaigne agree that the law must keep up with changes in society, and it is hard for the law to do so. However, Montaigne does not elaborate on why he thinks that the law is “fixed and immutable”, while Kafka carries on where Montaigne’s argument stops short. Kafka’s three reasons for the inflexibility of the law are personified through the Officer in “In The Penal Colony”, and these factors contribute to the rigid imposition of the law which is evident in Officer’s refusal to act on the moral evolution that has taken place in society. Although Montaigne’s argument could be expanded by the incorporation of Kafka’s points, one must not reject his argument too hastily. Montaigne’s unstructured style of writing enables him to express his ideas in a free flowing and frank manner, enabling him to flow from one topic to another with a steady pace. However, incorporating these aspects from Kafka would cause Montaigne’s argument to become too structured, and might not be consistent with the personal style he has developed. Nevertheless, one cannot help but think that the content has been compromised for style, and a consideration of Kafka’s points would provide a deeper insight and understanding in the inflexibility of the law as discussed by both authors.

Kafka, Franz. "In the Penal Colony." The Great Short Works of Franz Kafka. Trans. Joachim Neugroschel. New York: Simon & Schuster, 2000. 191-229

Montaigne, Michel Eyquem de. From the essay "Of Experience." Trans. Donald M. Frame. The Complete Works of Montaigne. London: Hamish Hamilton