Kafka's Last Trial

by Benjamin Balint

  Meir Heller submitted to Judge Kopelman Pardo’s court the testimony of his star witness, Margot Cohen. Born in 1922 in Alsace, in eastern France, Cohen was awarded the French Legion of Honor medal for rescuing Jewish children in the Holocaust through a clandestine network headed by Georges Garel. She immigrated to Israel in 1952, served as the philosopher Martin Buber’s secretary from 1958 until his death in 1965, and then as archivist of his papers at the National Library in Jerusalem.

  Cohen told the court that a few months before his death in 1968, Brod visited the National Library with Esther Hoffe. “Brod’s intention was first and foremost to deposit the archive in the library in Jerusalem, where the archives of his close friends are located,” Cohen testified. “From my conversation with Brod it was entirely clear to me that he had already decided earlier to deposit his archive in the library. . . . His visit to the department was meant to take care of the technical details involved in the proper handling of the archive.” “All during Brod’s visit to us [at the National Library],” Cohen later told Israeli journalist Zvi Harel, “Mrs. Hoffe never left him for a second. I tried to explain to Brod how I organized Buber’s archive. She never let Brod speak at all.” As to why Brod stipulated in his will that his literary estate be given to Esther Hoffe, Cohen suggested to Harel that Brod “was very weak when it came to women. That was his weakness.”

  After Brod’s death, the National Library entered into negotiations with Esther Hoffe. In return for the Brod estate and Kafka manuscripts, it pledged to fund scholars researching Brod, to mount an exhibition to mark the centennial of Brod’s birth in 1984, and to host an international symposium on his work. But she remained uncooperative.

  In a last-ditch effort, in 1982 the National Library had sent the head of its manuscript and archives department, Mordechai Nadav (1920–2011), and his assistant, Margot Cohen, to meet with Esther Hoffe. They visited her ground-story flat in a squat apartment building covered with pinkish stucco at Spinoza Street 20. “We told her how important it was to give the manuscripts of Brod and Kafka to the library,” Cohen recalled. “We told her that they would be available to the public and that this would continue the intellectual lives of Brod and his friends from Prague.”

  Cohen described to the court the disarray in the home Esther shared with Eva. “I was astonished to discover that there were piles of papers and files of documents in the apartment,” she said of the 1982 visit. “On almost every pile sat one of the many cats who wandered around the apartment. There was no place to sit and it was hard to breathe. My impression was that Mrs. Hoffe was not really interested in transferring the archive to the library, and in the end she didn’t transfer the writings . . . and didn’t carry out what Brod wanted her to do.”

  Here Eva objected that Margot Cohen could not possibly have seen cats clambering over manuscripts because the cats, which belonged to Eva, were not allowed in Esther’s room, where the papers were kept.

  In a February 2011 hearing before Judge Kopelman Pardo, Eva Hoffe’s attorney cross-examined Margot Cohen. He asked whether she could recall the color of the bookshelf in the Hoffe apartment on Spinoza Street.

  “No.”

  If she could not remember the color of the bookshelf, he pressed, how could she remember the disorder and the cats so vividly?

  A bookshelf, she said, “is common among yekkes [Jews of German descent], and it did not attract my attention. But I was not accustomed to seeing the cats and the piles of paper.”

  A month later, Cohen was called again to testify on the question of whether Brod had given his Kafka manuscripts to Hoffe.

  Cohen: “That he was giving her gifts I knew. It wasn’t a secret.”

  Judge Kopelman Pardo: “That he was giving her gifts?”

  Cohen: “Gifts of books, of manuscripts.”

  Shmulik Cassouto, court-appointed lawyer for the Esther Hoffe estate, argued that if the National Library had seen itself at the time as the eventual heir of those neglected piles of manuscripts, Margot Cohen should have applied to the court to order the preservation of the materials that were intended for the library. He further reminded the court that Cohen, who met with Brod only once, might not be in the best position to testify about his wishes. Cohen, he said, had been unwittingly put “in the unpleasant position of apparently being used as an (ill-fitted) tool to rewrite Dr. Brod’s will.” “There is a new Germany and Max Brod was one of the first to recognize that,” the attorney said. “There is indeed a new Germany,” Cohen replied with a certain sharpness, “but that does not mean that Brod would have thought of sending his archive there.”

  By June 1983, it was clear that the protracted discussions between Esther and the National Library had run aground. The German literary scholar Paul Raabe, a former director of the library at the Marbach archive who had known Brod, wrote to Esther in exasperation:

  It seems that things are as I feared: you are incapable of deciding to do for Max Brod not only what his friends expect, but what should have been self-evident even to you. If you do not reach an agreement now with the National Library concerning the estate of Max Brod, his hundredth birthday will have passed, and you will have done Max Brod the worst disservice anyone could do this good man. As much as I can understand your thousand hesitations and doubts, I must tell you to put them aside in the best interests of Max Brod. . . . It moved us [Raabe and his wife] to see you again in Tel Aviv. I also felt your helplessness, and thus spontaneously offered you my services . . . I would have loved to work with you again, and to stand at your side during your difficulties. But if you antagonize everyone you will soon stand alone. That would be not only grievous for you but also catastrophic for the commemoration of Max Brod and Kafka. I’m sorry to have to write you—and to have to write you so openly—but as one of Max Brod’s admirers I must share my disappointment with you and we, dear Mrs. Hoffe, have always been in a close personal relationship.

  In a second letter, later that month, Raabe writes:

  I see now that the negotiations have failed, and I wish to tell you how saddened I am on that score. You’ve lost the last chance in your lifetime to accommodate the papers of Max Brod in the way he surely would have wished but unfortunately did not express clearly in his will. Now these papers—like Kafka’s—will one day become the plaything of personal interests, a fate your dear good Max Brod does not deserve.

  It is common enough for literary executors “to frustrate as utterly as possible the post-mortem exploiter,” as Henry James said to his nephew. But in Raabe’s view, Esther had betrayed her duties as gatekeeper to Brod’s memory and work. Like T. S. Eliot’s widow, Valerie, who had been the poet’s secretary for eight years before their marriage, and like Ted Hughes, literary executor of Sylvia Plath after her suicide in 1963, Esther had abused her right of veto, her power to fend off biographers and scholars. In her jealous, proprietorial anxiety, she threatened to damage the very memory she had been entrusted with guarding. So, at least, in the eyes of Raabe.

  Was this true? Did Esther’s possessiveness suppress scholarship? Eva insists that her mother did allow leading Kafka scholars to consult the material in the late 1970s and 1980s. “The claim that we didn’t allow researchers to access the material is a lie,” she tells me. It is true that Esther contracted with the legendary publisher Siegfried Unseld, the patriarch of Suhrkamp Verlag, for rights to use Kafka’s manuscript of “Description of a Struggle.”* She also sold S. Fischer Verlag the rights to use photocopies of The Trial, Kafka’s letters to Brod, and the travel diaries of Kafka and Brod for the German critical edition being edited by Malcolm Pasley of Oxford. For the latter, Esther received a payment of 100,000 Swiss francs and five sets of the first printing of the critical edition. Esther must also have allowed access to the German editors of Walter Benjamin’s collected works; the originals of several of Benjamin’s letters to Brod, published in the collected works, were later found in Esther’s estate.

  In his definitive three-volume biography of Kafka, Rein
er Stach, echoing Raabe, remarks on his frustration with the “unsatisfactory situation” which “would improve greatly if the literary estate of [Kafka’s] longtime friend Max Brod were finally made available to researchers. This first-rate resource would contribute valuable insights to our understanding of the literary and historical issues concerning Kafka and the period as a whole.” I asked Stach to elaborate.

  In the 1970s, Esther Hoffe showed the papers in her flat to some researchers, including Margarita Pazi [a scholar of German-Jewish literature who wrote on Brod] and Paul Raabe, but they had no opportunity to work with it “systematically.” This is the reason why they never quoted anything of it in their articles and books. The only exception (as far as I know) was Joachim Unseld [son of Siegfried Unseld]: he bought a Kafka manuscript and was then allowed to copy some of Max Brod’s letters.

  Malcolm Pasley got access to the safes, because the S. Fischer publishing house paid a lot of money for copies of the Kafka manuscripts, which they needed for the Critical Edition. He got no access to the papers in the flat, although this would have been very important for the commentary.

  Hans-Gerd Koch, who was and still is busy with the commentary since about 1990, never got access to the papers in the flat, although for him and the edition, too, it would have been very important.

  Stach wrote his volume on Kafka’s fledgling years last, though in chronology it is the first, for just this reason. As his translator Shelley Frisch explains:

  This order of publication, which may appear counterintuitive—even fittingly “Kafkaesque”—was dictated by years of high-profile legal wrangling for control of the Max Brod literary estate in Israel, during which access to the materials it contained, many of which bore directly on Kafka’s formative years, was barred to scholars.

  In 2013, when Stach was researching his Kafka: The Early Years, he says he “asked Eva Hoffe in a detailed letter to show me just some of Brod’s early notebooks.” She refused. Eva confirmed this to me. “I told him that my hands are tied,” she said, “and that I no longer have the keys to the safe deposit boxes.”

  From the outset, Heller’s legal arguments in the case became entangled with ideological considerations, and were joined by a chorus of Israeli figures who contended that Kafka’s rightful place was in an Israeli public institution. Kafka scholar Mark Gelber, for instance, a professor at Ben-Gurion University, told the New York Times that the writer’s “intimate connections to Zionism and Jews” lent weight to the claim that his lost writings should remain in Israel.

  _____

  The Israeli decision to contest the validity of Esther Hoffe’s will left observers in Germany as stunned as it did Eva. The German Literature Archive (Deutsches Literaturarchiv) in Marbach, had been in negotiations to buy the Brod estate—including the Kafka material—from the Hoffes. The German archive successfully applied to the court as an interested party, and weighed in to support Hoffe’s right to the manuscripts. The institute in Marbach, the world’s largest archive of modern German literature, is more or less to Germany what the National Library is to Israel. It is financed by the state of Baden-Württemberg and the Bund (the German state), with third-party funds from the German Research Foundation (or Deutsche Forschungsgemeinschaft, which in turn receives the majority of its funds from the federal government).

  Unlike the Israelis, Marbach did not claim legal ownership of the manuscripts; it simply wished to be granted the right to bid for them. Marbach, in other words, regarded the Israeli claim as a desperate if cunning maneuver. If commerce were allowed to take its natural course, Marbach argued, Hoffe would sell the manuscripts to Germany.

  As tensions mounted, Ulrich Raulff, director of the Marbach archive, wrote a letter to Eva Hoffe attesting that her mother Esther had “expressed her intention on a number of occasions to convey the Max Brod bequest to Marbach.” Extolling the German archives’ “cutting-edge capabilities for professional storage and archiving” and specialists in conservation, restoration, deacidification, and digitization, Raulff wished to add Kafka’s manuscripts to the estates of more than 1,400 writers the Marbach archive already held in storage facilities kept at a constant 18°C–19°C (about 66°F) and a relative humidity of 50 percent–55 percent. These include the Helen and Kurt Wolff Archive, which contains the estates of over two hundred authors and scholars who were persecuted by the Nazi regime and subsequently went into exile.* Raulff added that Marbach already houses one of the world’s largest collections of Kafka manuscripts—second only to Oxford.†

  “The Israelis seem to have become crazed,” remarked Kafka scholar Klaus Wagenbach (whose own papers are archived in Marbach) when the suit to stop Esther Hoffe’s will was announced. Yet during the hearings before Judge Kopelman Pardo, Marbach gradually took a less confrontational approach, and stressed that the imminent battle over Kafka need not be a zero-sum game. Marcel Lepper, research director of Marbach, pointed out that “with funding from the German Federal Foreign Office, the Rosenzweig Minerva Research Center at the Hebrew University of Jerusalem and the German Literature Archive here set up a joint research project in 2012 that helps to preserve German-Jewish collections in Israeli archives. . . . Cooperative, decentralized projects are more appropriate to the particular German responsibility in the context of German-Israeli relations.”

  Eva saw things in a starker light. “Marbach doesn’t dare to challenge the Israeli claims openly,” she told the German weekly Die Zeit in 2009. “There is still a guilty conscience because of the war and the Holocaust.” Speaking of Germany and Israel, she told me “the two cultures—European and Levantine—are simply incompatible.”

  The Marbach archive hired Sa’ar Plinner, one of Israel’s top intellectual property lawyers, to represent its interests in the Hoffe case. Plinner submitted to the court a statement from the director of the manuscripts department at Marbach, Ulrich von Bulow, claiming that Brod had visited the archive in the 1960s and explicitly stated that he wanted his estate to go there. Plinner argued that the proceedings were nothing but a pretext for Israeli state seizure of private property. What began in intimacy, between Kafka and himself, had become the ever-widening property of Brod, and then the Hoffe family, and now possibly the state itself.

  At a later stage of the trial, Plinner pointed toward the first intimacy of the case: the friendship between Kafka and Brod. He asked the court to distinguish between the manuscripts Kafka had given Brod as gifts, and the manuscripts Brod had taken from Kafka’s desk after Kafka’s death. The latter, Plinner suggested, properly belong neither to the Hoffe family nor to the National Library, but if anyone to Kafka’s sole living heir, Michael Steiner in London.

  Some have disputed Brod’s rights even to the gifts he received directly from Kafka. Kafka biographer Reiner Stach, for instance, writes that although Brod claimed that Kafka had given him various unfinished manuscripts as an outright gift, in fact Kafka had only handed them to Brod as a kind of “permanent loan,” and Kafka later explicitly asked Brod to burn these, too. Because of his merits in laboring on behalf of Kafka’s legacy, few challenged Brod’s claim. Michael Steiner wrote to me:

  The interest of the Kafka Estate in this whole affair was the possibility that the manuscripts which were the subject of the litigation may have included some which had never been given to Max Brod by Franz Kafka and which therefore belonged to the Estate. It took many years for us to get hold of the inventory and even then, since it was not prepared by a scholar, there remained and remain ambiguities as to whether certain manuscripts were indeed ever gifted to Brod. All the judges over the years were at pains to stress that they were not dealing with that question, but solely with who was the rightful owner of manuscripts which did belong to Brod under his will or might have been gifted by him in his lifetime.

  _____

  The debates before Judge Kopelman Pardo echoed outside the courtroom as well. In January 2010, Reiner Stach took a stand in the Berlin daily Tagesspiegel:

  Marbach would certainly
be the proper place for the Brod estate, because it has the scholars and the expertise to deal with Kafka, Brod, and German-Jewish literary history. That the Hoffe daughters are now seriously negotiating with Marbach has aroused some resentments or covetousnesses in the Israeli National Archive [sic]. But they lack the people with knowledge of the language and milieu of those German texts from the cultural space between Vienna, Prague and Berlin. As a young man, Brod was in contact with Heinrich Mann, Rilke, Schnitzler, Karl Kraus, Wedekind, and composers like Janáček, and discussed these correspondences with Kafka. But this was decades before he came to Palestine. To speak here of Israeli cultural assets seems to me absurd. In Israel, there is neither a complete edition of Kafka’s works, nor a single street named after him. And if you wish to look for Brod in Hebrew, you have to go to a second-hand bookshop.

  It is true that Mordechai Nadav set up the National Library’s archival department only after 1966, when it received the literary estates of Martin Buber and Israeli Nobel laureate S. Y. Agnon. Only in 2007 did the library establish separate manuscript and estate departments. But some Israelis bristled at the suggestion that Israel lacked the expertise and resources needed to act as custodians of Brod’s manuscripts. “As a native of Prague who at the Hebrew University is researching, along with my colleagues in Israel and abroad, its Jewish culture and history in all periods—in its languages, Hebrew, German, and Czech—I strongly protest these hypocritical and outrageous claims that challenge our legitimacy to carry out these studies and to take proper scientific care of primary sources in general, and the estates of Kafka and Brod in particular,” Professor Otto Dov Kulka told the Israeli newspaper Haaretz. “They say the papers will be safer in Germany. The Germans will take very good care of them,” Kulka told the New York Times in 2010. “Well, the Germans don’t have a very good history of taking care of Kafka’s things. They didn’t take good care of his sisters [who perished in the Holocaust].”