of Law and Equity in The Merchant of Venice
Williams once said that “Shakespeare is the greatest university of them all”
(qtd. in Kornstein xiii).This is
especially true with respect to the law: a dedicated scholar can discover a
wealth of information on legal issues in Shakespeare’s works.Measure for Measure and The
Merchant of Venice are, of course, explicitly “legal” in content, but more
than twenty of the plays have some form of trial scene (Kornstein xii).Virtually all of the plays are tangentially
concerned with some aspect of the law; at the very least, Shakespeare uses
complex legal jargon to elicit a laugh.When one of the title characters in The Merry Wives of Windsor
tosses out a line like:
If the devil have [Falstaff] not
in fee simple [absolute possession], with fine and recovery [as
of an entailment], he will never, I think, in the way of waste
[despoiling], attempt us again (IV.ii.197-99, emph. added)
the law students who made up a
large portion of his contemporary audience must have roared with laughter, even
if few others got the joke.
It is therefore
not surprising that the interdisciplinary study of law and Shakespeare has
grown into a fully recognized field, with major law schools offering advanced
examination has opened for us a new vista of understanding.The Merchant of Venice “has spawned
more commentary by lawyers than any other Shakespeare play” (Kornstein
66).One can easily find a discussion
of every legal concept raised in the course of the play (White 111-46), a
detailed legal dissection of the trial scene in Act IV (Keeton 132-50), and
even an imaginary appellate strategy on behalf of Shylock (Kornstein 83-85).
The link between
Shakespeare and the law is not new; even a casual perusal of the literature
will show that scholars have long realized that the legal discourse can lead to
a better understanding of Shakespeare’s works.I submit, however, that the converse is also true: that the study of
Shakespeare can lead to a deeper understanding of the fundamental nature of
law.A play like The Merchant of
Venice has a great deal to offer in the course of such a reading.The action of the play is concerned with
contract law, but issues of standing, moiety, precedent, and conveyance are
also raised.At the most fundamental
level, though, the trial scene in Act IV illustrates the conflict between
equity and the strict construction of the law.
the legal sense, is “justice according to principles of fairness and not
strictly according to formulated law” (Gilbert 103).This definition, while easily
understandable, presents us with a problematic – even dangerous - structure of
opposition.Law and fairness are set at
extreme ends of some continuum of justice, and are exclusive.The definition implies that one can have
justice according to “fairness,” or justice according to “formulated law.”Yet if law is not inherently fair, if there
is need for a concept of equity, how can the law be said to be fulfilling its
purpose?And if “fairness” is not to be
found within the confines of “formulated law,” from whence does it come?This is not a new argument, of course; the
conflict between law and equity was recognized even in medieval England.
childhood, we are indoctrinated with a sense of justice, of fairness, of right
and wrong.Every schoolyard echoes with
cries of “No fair cheating!”We seem to
know instinctively that some things are fair, some things are not, and our
moral outrage is awakened when injustice is perpetrated.
It is this
indignation, this sense that principles of fairness have been violated, that
arouse many to question the theories and practices upon which our system of law
and justice have been built.Some would
claim, for example, that rape is a crime no less egregious than that of murder,
and thus call for the execution of convicted rapists.Yet no state allows such execution solely for conviction of
rape.It has become a fundamental tenet
of American law that the state may not take the life of a felon unless the
crime involved the taking of a life; rape alone, while devastating the life of
the victim, does not result in death without some intervening act.The search for equity – for fairness –
within codified law has led to some bizarre and arcane practices in Western
courts; when drunk drivers spend more time in prison than some murderers, this
fact becomes painfully apparent.
Equity, in fact,
has become so intertwined with law in the justice system that it is difficult
to see the lines of demarcation.We
must remember, however, that such was not always the case.When Shakespeare wrote The Merchant of
Venice, there were actually separate courts in England for the
administration of law and equity.One
appealed to the Court of Common Law to seek redress under codified law, or to
the Court of Equity to avail oneself of the judgment of men.The two spheres were kept strictly separate,
and it was not until the reign of James I that courts of law began to consider
principles of equity in the resolution of disputes (Keeton 136-37).
In such a system,
the terms of forfeiture of a bond, like the one sealed between Shylock and
Antonio, fell under the purview of the Courts of Common Law.These courts, in the sixteenth century,
relied upon strict construction; that is to say, a literal reading of
applicable law and the instruments made to employ such law.A contract, like the one made between
Shylock and Antonio, was “fully enforceable at law” (Keeton 136).This means that any penalty stipulated in
the contract would be automatically awarded if the contract were not strictly
upheld.A delay in repayment of even a
single hour would result in any forfeiture that the debtor had agreed to
pay.It is this notion of “fully
enforceable” contract that leads Portia to proclaim initially that “lawfully by
this [contract] the Jew may claim/A pound of flesh” (IV.i.229-30).
between law and equity, between strict construction and principles of fairness,
is evident in Shylock’s initial proclamations.The law is on his side, and he knows it.When he states, “I stand here for law” (IV.i.142), and “I crave
the law” (IV.i.204), these terms are meant in binary opposition to equity.Shylock seeks a justice based upon
vengeance, not “fairness.”He comes
armed with a contract strictly enforceable and clings tenaciously to the most
literal interpretation possible.It is
evident that Shylock intends to wield the law as a weapon against Antonio; when
Portia pleads with him to have a doctor stand by to save Antonio’s life,
Shylock obstinately refuses on the grounds that “’Tis not in the bond”
In contrast to
Shylock’s reliance upon strict construction, Portia urges the consideration of
principles of equity.She delivers a
passionate speech on the need for considerations of humanity in the
adminisration of the law:
justice be thy plea, consider this,
in the course of justice none of us
see salvation.We do pray for mercy,
that same prayer doth teach us all to render
deeds of mercy (IV.i.196-200).
Mercy, or the imposition of basic
principles of fairness upon the strict letter of the law, lies at the heart of
equity; a modern philosopher might refer to such considerations as “situational
ethics.”Portia’s famous speech on the
qualities of mercy attributes this capacity in mankind to a higher, divinely
inspired form of law:
The quality of
mercy is not strained.
It droppeth as the
gentle rain from heaven
Upon the place
beneath. It is twice blest;
blesseth him that gives and him that takes.
. . It is an attribute to God himself;
earthly power doth then show likest God’s
mercy seasons justice (IV.i.182-95).
Portia thus articulates the
fundamental conflict between law and equity; while justice can be found in each
separately, there is a better form of justice to be obtained when mercy and
fairness become considerations in the administration of the law.
learns, of course, that strict construction is a double-edged sword.When her appeal to equity fails in the force
of Shylock’s lust for vengeance, Portia must retreat to the battlefield of law,
and here the moneylender is undone.Shylock’s defeat on a legal technicality makes for good drama, but the
legalities are based on a false premise, and even here the effects of equity in
consideration of law can be seen.Shylock is awarded his pound of flesh, but is enjoined from taking any
accompanying blood; since he cannot take the one without spilling the other, he
is forced to abjure his forfeiture.It
is a tenet of the common law, however, that any granted right must also entail
any incidental powers necessary to its exercise.One jurist has likened Portia’s winning argument to a judge
granting an easement but denying the right to leave footprints on the ground,
since the subsidiary right is not expressly granted in the contract (White
142n1).It is inconceivable that any
codification of law could possibly cover all contingencies; that the law is, or
even can be, flexible at all is a function of the principle of equity.
punishment, and the evolving response of audiences over the course of four
centuries, may also point to a crucial aspect of equity: that fundamental
ideals of fairness can change over time to meet societal needs.Shylock comes to court to seek redress for
default of a loan; he leaves the trial bereft of all of his property, stripped
of his lifelong faith, and very nearly sentenced to death.Contemporary audiences likely would have applauded
such a resolution; even a century ago, the world that saw the trial of Alfred
Dreyfus would have found Shylock’s treatment at the hands of the law completely
fitting.In the post-Holocaust world,
however, we recoil with revulsion from any hint of anti-Semitism
whatsoever.The punishment of Shylock
offends a cultural sensibility that cannot be denied, and political correctness
forces us to decry its insinuations even as we applaud its syntax.
The Merchant of
Venice is, at its heart, a skillful examination of the tension between law
and equity.In the 1980 BBC production,
Shylock enters the courtroom carrying a balance, a bit of stage direction that
does not appear in the play script (IV.i.15sd).Of course, the obvious inference is that he intends to use the
scales to weigh out his forfeiture, a pound of Antonio’s flesh.Yet the scales have long stood as a symbol
of justice; Homer’s Iliad may be the first use of this symbol (XXII.249,
for example), or it may be even older.If we view the two scales as representing law on one side, and fairness
on the other, the point at which they balance is equity.When strict adherence to the law outweighs
basic principles of fairness, there can be no justice.Bassanio may have the most poignant
statement on the nature of equity when he urges the court to temper justice
with fairness; should the law contain no room for mercy, he claims:
It must appear
That malice bears
down truth.And I beseech you,
Wrest once the law
to your authority.
To do a great
right, do a little wrong (IV.i.211-14).
David, ed.The Complete Works of
Shakespeare.4th ed.New York: Longman-Addison Wesley Longman,
Law Dictionary.Chicago: Harcourt
Homer.The Iliad.Trans. Robert Fagles.New
York: Penguin, 1990.
George W.Shakespeare’s Legal and
Political Background.New York:
Barnes & Noble, 1967.
Daniel J.Kill All the Lawyers?:
Shakespeare’s Legal Appeal.Princeton: Princeton UP, 1994.
Merchant of Venice.British
Broadcasting Corp.Prod. Jonathan
Miller.Dir. Jack Gold.Time-Life Video, 1980.
William.The Merchant of Venice.Bevington 178-215.
---.The Merry Wives of Windsor.Bevington 252-87.
Ian.Shakespeare and the Legal
Imagination.Law in Context.London: Butterworths, 1999.
Edward J.Commentaries on the Law in
Shakespeare.St. Louis: F.H. Thomas
Law Book Co., 1911.