Milan Kundera and Franz Kafka - How Not to Forget Everydayness

Abstract

Purpose of the article is to show that while in fundamental constitutional questions we are still attentive to our past, in everyday legal cases we can forget more likely. In my opinion, in case of the post-communist countries it is very dangerous to forget the Past because we have nothing other than our memories. To forget means either to be exposited the danger of return to the system as it was or to transform our legal praxis into a depersonalized system. Methodology/Methods In this article I want to analyze two decisions of Constitutional Court of the Czech Republic and compare them with situation described in early works of Milan Kundera (The Joke; The Book of Laughter and Forgetting). His work reflecting the past everydayness in communist Czechoslovakia can be used as a good example of the analyses of forgetting. Very similar inspirations we can find in work of Franz Kafka (The Trial) or even better in Milan Kundera's interpretation of Kafka's work. The scientific aim of this article is to show that although the literature represents different conception of knowledge when this knowledge is compared with legal knowledge we can gain parallels that describe the law rooted in culture and society. Conclusions of this article show that on one side we face reminding of our Past in decisions regarding politically considerable cases. On the other side we face the oblivion: In cases at constitutional level dealing with everydayness in legal praxis we can find rather shift to formal interpretation without any reference to our past. The result can be Kafkaesque legal system without any signs of living people.