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Rick Laws

Washington State University

 

Conflicts of Law and Equity in The Merchant of Venice

William Carlos 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 degrees. Such interdisciplinary 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.

Equity, in 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.

From earliest 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).

The dichotomy 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” (IV.i.260).

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:

Though justice be thy plea, consider this,

That in the course of justice none of us

Should see salvation. We do pray for mercy,

And that same prayer doth teach us all to render

The 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;

It blesseth him that gives and him that takes.

. . . It is an attribute to God himself;

And earthly power doth then show likest God’s

When 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.

Shylock soon 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.

Shylock’s 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).

 


Works Cited

Bevington, David, ed. The Complete Works of Shakespeare. 4th ed. New York: Longman-Addison Wesley Longman, 1997.

Gilbert Law Dictionary. Chicago: Harcourt Brace, 1997.

Homer. The Iliad. Trans. Robert Fagles. New York: Penguin, 1990.

Keeton, George W. Shakespeare’s Legal and Political Background. New York: Barnes & Noble, 1967.

Kornstein, Daniel J. Kill All the Lawyers?: Shakespeare’s Legal Appeal. Princeton: Princeton UP, 1994.

The Merchant of Venice. British Broadcasting Corp. Prod. Jonathan Miller. Dir. Jack Gold. Time-Life Video, 1980.

Shakespeare, William. The Merchant of Venice. Bevington 178-215.

---. The Merry Wives of Windsor. Bevington 252-87.

Ward, Ian. Shakespeare and the Legal Imagination. Law in Context. London: Butterworths, 1999.

White, Edward J. Commentaries on the Law in Shakespeare. St. Louis: F.H. Thomas Law Book Co., 1911.

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