Friday, November 13, 2009

The Fifth Amendment in light of Kafka and Sartre

“ No man is bond to betray himself,” a quote by John Lambert, is the essence of the Fifth Amendment’s self incrimination clause. The Fifth Amendment of the United States Constitution protects individuals from self-incrimination. The problem with the Fifth Amendment Self Incrimination Clause is that the individual may refuse to testify against himself. How is the jury supposed to determine the correct verdict for any case without a confession from the defendant?

The self incrimination clause makes it seem as if the defendant is in Sartrean “bad faith” by lying to him or herself about being guilty. The defendant is trying to be not guilty in the mode of being guilty, therefore, is trying to be free from guilt rather than be rightfully guilty. If the individual is guilty then the clause gives him the ability to withhold incriminating parts of his testimony, which is to be in “ bad faith” as to lie to himself.

In “ In Trial,” Kafka presents the story of " a man from country" who wants to be admitted by the Law. When he asks for access to the Law, he is denied by the gatekeeper who is guarding the gates that lead to the Law. In relation to Kafka, the defendant can be seen as the man before the gate, the gatekeeper symbolizes the legal system, specifically the Fifth Amendment. The Fifth Amendment helps the defendant to become free from an incriminating confession. Both the man and the defendant strive for different forms of freedom; the man in the story wants a genuine yet paradoxical sense of freedom which is the freedom to be accepted by the law but subconsciously adhere to laws as he waits in front the door all his life. This causes him to deprive himself of freedom regardless the gatekeeper‘s action while trying be accepted by the Law. The man at the gate is not free in the mode of actually being free so he is in a type of “ bad faith” as well. However, the defendant wants freedom from self incrimination, so he takes makes use of the Fifth Amendment. However, complying to the Fifth Amendment’s self incrimination clause causes the defendant to fall into the Sartrean bad faith. Neither the man at the gate nor the defendant are able to attain their own sense of freedom without falling into Sartre’s concept of bad faith.

I am not sure if the defendant is really free if he achieves the illusion of freedom by slipping into bad faith. Is this really being free even though the defendant is withholding incriminating information through means of bad faith? Will Kafka's man at the gate or the defendant be able to attain freedom without a drop of bad faith?


  1. This comment has been removed by the author.

  2. I agree that the defendant acts in bad faith. He chooses to abide by the Fifth Amendment, objectifying himself to the law. He is entirely free to comply with this or confess. If his is guilty, he allows the Fifth Amendment to control his freedom. He is attempting to free himself by complying, but in doing so eliminates other freedoms. I suppose this is a unique case, because confessing his/her crimes would lead to prison and/or punishment, in which freedom is further eliminated. Nonetheless, the defendant serves as an object to the law, and therefore eliminates possibilities.

  3. That is a very interesting observation of the fifth amendment, Manali. I agree that Sartre would probably hate the fifth amendment; it is basically institutionalized passiveness, which Sartre certainly seemed to dislike. Deciding not to act either way is still an action in itself and thanks to the amendment, the court system ignores that fact.

  4. I really like this comparative and I think you hit the nail right on the head, Manali. My question would be, from Sartre's perspective, isn't everyone who participates in the court hearing in bad faith then? I would think so. If the defendant so chooses to plead to the fifth admendment, and the jury and judges still declare a verdict, they are aware that they don't have the complete truth. Aren't they lying to themselves in the respects that they really don't know if the defendant is guilty or innocent.


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