Law and Literature Part 5

De Grazia, Hamlet without Hamlet 175 (2007).

Bart van Ess, "Gone to Earth," Times Literary Supplement, Aug. 15, 2008, p. 12.

71. See, for example, Jacques Lacan, "Desire and the Interpretation of Desire in Hamlet," 5556 Yale French Studies 11 (1977); Ned Lukacher, Primal Scenes: Literature, Philosophy, Psychoa.n.a.lysis, ch. 6 (1986); Shakespeare and the Question of Theory, pt. 4 (Patricia Parker and Geoffrey Hartman eds. 1985).

72. Lukacher, note 71 above, at 231232.

Lucia.n.u.s turns out to be the player-king's nephew instead of brother, which implies that Hamlet may try to kill him. The changing of the murderer from brother to nephew does pull Hamlet into the play within the play, as we know, but there is no basis for the suggestion that Claudius had seen the play before. Lukacher's conjecture overlooks the dramatic necessity of Claudius's remaining impa.s.sive during the dumb show. Because he is going to interrupt the live performance when Lucia.n.u.s poisons the player-king, only in the dumb show is the murderer shown wooing the player-queen, which is necessary to complete the parallel between the murderer and Claudius. If Claudius interrupted the dumb show, the audience wouldn't understand the parallel between the play within the play and the "real" events of Hamlet.

One critic has said that in staging the play within the play Hamlet "is trying to recreate his infantile glimpses of his parents' coitus."73 Another has a.s.serted "that the manner of Claudius's crime reveals symbolically that Claudius poisoned his brother with words, and more particularly, words that revealed to old Hamlet that he, Claudius, knew of his brother's treachery in poisoning old Fortinbras" with the help of Polonius.74 There is no basis in the text for suspecting foul play in the death of old Fortinbras. He died in a fair duel-which he had provoked-with Hamlet's father.75 The excesses of Hamlet criticism reveal how far beyond the text some literary critics feel free to range-even to the point of contradicting it-in the name of "interpretation," and thus provide a foretaste of tendencies in both literary and legal theory discussed in later chapters.

There are interesting parallels between Achilles and Hamlet. Both dominate their fictive worlds because of a natural authority sensed by the other characters and because of their detachment and insight. Both are young and impulsive, yet mature rapidly near the end of their brief lives. In both, the transition from youth to maturity is signified by a period of absence- Id. at 225 n. 70, summarizing a theory of Otto Rank's. See also Stanley Cavell, Disowning Knowledge in Seven Plays of Shakespeare, ch. 5 (updated ed. 2003).

74. Lukacher, note 71 above, at 225226, summarizing a theory of Nicolas Abraham's.

Notice that after being deflected from seeking revenge against the Danes, young Fortinbras will-we are led to believe at the end of the play-succeed Claudius as king of Denmark. This can be taken as another implied criticism of the ethic of revenge.

*Achilles' sitting out the fighting in his tent, Hamlet's aborted voyage to England. Hamlet's return, delivered naked (or so he writes his uncle) to the sh.o.r.e of Denmark, is a symbolic rebirth. Both characters resist the tasks that character and fate have set them-fighting Trojans in the case of Achilles and avenging his father's death in the case of Hamlet-and interrupt the tasks while reflecting on them. Both are inadvertently responsible for the death of the person or persons who are nearest and dearest to them, plus numerous others.

Man can imagine eternal bliss but knows that he will die; can imagine a better world but learns that the improvements, if any, will be modest in his lifetime; can imagine a life of ease and triumph but lives a life of frustration. As Shakespeare's Troilus says, the will is infinite but the execution confined, the desire boundless but the act a slave to limit. It takes a while for these depressing truths-the "narcissistic wound," in Freudian terms, the shocking "recognition of our essential helplessness and aloneness"76-to sink in. Young people think they can live their dreams and could set the world right but for the fears and hesitations of the old men who run things. Their imagination has not been chastened by experience.

Distinctly young men at the outset,77 both Achilles and Hamlet receive a rude awakening at the hands of depressingly adult figures concerning human nature-Achilles from Agamemnon's s.n.a.t.c.hing away his prize and Hamlet from the overhasty and incestuous remarriage of his mother and the revelations of the ghost. They react with the idealistic indignation of youth. "Hamlet's dangerous subversive humour-which is neither madness nor sanity, but a denial of the authority of the society that holds him-permanently defines a freedom and impotence of the young."78 He grows up-and so one way to explain the disappearance of the ghost after Martha Grace Duncan, Romantic Outlaws, Beloved Prisons: The Unconscious Meanings of Crime and Punishment 96 (1996).

The impression of their youth is reinforced by the prominence in both works of an old man-Nestor in the Iliad and Polonius in Hamlet. Lear-who despite his great age is a parallel figure not to Nestor or Polonius but to Achilles and Hamlet-is in his second childhood: his effort to shirk all responsibility and his demand for infinite love are behaviors characteristic of a child.

78. Barbara Everett, Young Hamlet: Essays on Shakespeare's Tragedies 22 (1989).

Hamlet's confrontation with his mother in Act III is that Hamlet becomes his father-and, like his father, will be killed by Claudius.79 The character of these works as literature about maturing80 is signaled by the global reflections to which the opening shocks provoke the protagonists. Achilles begins to think about the choice that is not a choice: although in principle he is free to choose between a short glorious life and a long inglorious one, his character predetermines his choice. We die after a short time, but as partic.i.p.ants in a human community we can live on indefinitely in the memory of our successors. Achilles' exploits will be sung by Homer hundreds of years later,81 but only if the exploits are glorious, implying risk-taking and a high probability of early death. There is thus a sense in which the short glorious life is actually longer than the long inglorious one; we cheat death by courting death.

Hamlet's reflections follow another path, his discovery being of different aspects of the human dilemma: the existence of radical evil-Claudius's deep-seated malignity and Gertrude's lack of taste in husbands and her s.e.xual impropriety, reflecting the animal in man; the role of chance in human affairs; and the difficulty of translating motive and desire into effective action. Hamlet demonstrates the equal fatality of delay and impetuosity. Hamlet usually does badly when he delays, as when he fails to kill Claudius in the prayer scene, and when he acts impulsively, as when he stabs Polonius. The play places particular emphasis on the futility of planning, and hence on the importance of contingency in human affairs. There is no happy medium, no optimum tempo of deliberation.

Hamlet also comes to understand the ease with which we evade responsibilities and rationalize our evasions and the lack of candor in human relations (a lack displayed by Polonius, Claudius of course, Gertrude, Rosencrantz and Guildenstern, and even Ophelia). He learns that everybody is acting, in the disreputable sense of the word, and that he too must become an actor, even a stage manager (of the play within a play), if he is to be effective.

79. Id. at 126.

As emphasized, with respect to Hamlet, in Maynard Mack's famous essay, note 48 above, at 5258.

On the Greeks' belief in the importance of fame (kleos) spread by the spoken word, see Jesper Svenbro, Phrasikleia: An Anthropology of Reading in Ancient Greece, chs. 34 (1993).

*The deeply rooted nature of the vices and deficiencies exhibited to Hamlet is underlined by the characters' allusions to the Garden of Eden (and hence to the fall of man) and to Cain's murder of his brother; by the plausibility of Claudius and particularly Gertrude, who lack the surface malignity of an Iago or a Goneril (indeed, Gertrude's love for Hamlet is touching); and by the atmosphere of drunkenness and s.e.xual intrigue in which the play's fictive Denmark is wrapped from the beginning, an atmosphere set off by the one completely straightforward character in the play, Horatio. The resignation that Hamlet displays in Act V reflects a hard-won understanding of the nature of the human condition and a resolution to face it with readiness (which Hamlet characteristically fails to do, however, when he accepts a foil without making sure it is bated) rather than with elaborate plans sure to go awry, as Hamlet's plan with the players went awry and Claudius's plans with Rosencrantz and Guildenstern and later with Laertes went awry. We do not live our dreams. Those who try to, like Macbeth and Faustus (see next chapter), find that their dreams are nightmares.

Another way to describe the thematic development in the Iliad and Hamlet, particularly the latter, is as the process of becoming at home in the world. At the beginning of the play and especially in the throne-room scene, in which Hamlet is set off from the others by his black mourning cloak and responds to his uncle and mother in bitter quips, he is distinctly not at home in his world.82 (And think of Achilles sulking in his tent.) This not-at-home-ness remains strongly marked through the third act. But then, and especially in the last act, whether Hamlet is jawing with Horatio or wrestling with Laertes in Ophelia's grave or fencing verbally with Osric or fatally with Laertes, he seems quite at home-comfortable in his skin for the first time in the play-and his at-home-ness gives a sense of completion to his short life. Centuries later, the idea that you are not fully alive until, giving up your plans for the future, you take life day by day will recur in The Red and the Black. When shortly before his execution Julien renounces ambition and begins to live "a life without past or 82. Cf. William Empson, Some Versions of Pastoral 186 (1950): "Another view of the doctrine of the Fall is, I think, somewhere in his [Milton's] mind; that the human creature is essentially out of place in the world and needed no fall in time to make him so."

future, a life always in the present moment, a life which is lived from day to day," he becomes "a being worthy of Stendhal."83 Julien was not himself when he was acting out the script for an ambitious poor boy that he had gotten from the life of Napoleon. Hamlet was not himself when he was attempting to be his father's avenger.

Achilles and Hamlet are more than avengers. But that is part of what they are and it is important to an understanding of why they act as they do and why Hamlet does not act as he is told to do by the ghost. These works offer a critical perspective on justice as vengeance, though the authors were after even bigger game. It is a perspective that foreshadows and dramatizes the social scientific critique sketched in the first part of this chapter.

83. Georges Poulet, "Stendhal and Time," in Stendhal, Red and Black: A Norton Critical Edition 470, 473 (Robert M. Adams ed. 1969).

chapter 3.

Antinomies of Legal Theory

Jurisprudential Drama from Sophocles to Sh.e.l.ley

aw considered reflectively can be seen, in both its conceptual and its inst.i.tutional aspects, as riven by a series of antinomies, such as law versus equity, rule versus discretion, positive law versus natural law, customary law versus enacted law, judge versus jury-even, it may be, male versus female. These antinomies give structure to jurisprudence. They also inform a number of distinguished literary works that const.i.tute in the aggregate a supplemental course of reading, of unsurpa.s.sed vividness, to the philosophical and legal literature of jurisprudence.

Consider the dramatization of historical jurisprudence in Euripides' play Hecuba. The Trojan War has just ended, and the Greek fleet, carrying Hecuba and the other Trojan women as slaves, has stopped in Thrace on its way home from Troy. There Hecuba learns that the king of Thrace, Polymestor, has killed her only surviving son, Polydorus, whom Priam had entrusted, along with a large quant.i.ty of gold, to Polymestor in hopes of preserving the boy and the gold from the perils of war. Polymestor admits the killing but argues that he did it to protect the Greeks from the danger that Polydorus might have rebuilt Troy and sought revenge for his father's death and for the other disasters that had befallen his family.

124.

This if true would not be a negligible argument. But Hecuba is certain that it is false, that Polymestor killed Polydorus for the gold. She implores Agamemnon, in the first of two informal trial scenes in the play, to punish Polymestor (ll. 790805): Give me my revenge on that treacherous friend who flouted every G.o.d in heaven and in h.e.l.l to do this brutal murder.

At our table he was our frequent guest; was counted first among our friends, respected, honored by me, receiving every kindness that a man could meet- and then, in cold deliberation, killed my son . . .

I am a slave, I know, and slaves are weak. But the G.o.ds are strong, and over them there stands some absolute, some moral order or principle of law more final still. Upon this moral law the world depends; through it the G.o.ds exist; by it we live, defining good and evil.

Apply that law to me. For if you flout it now, and those who murder in cold blood or defy the G.o.ds go unpunished, then human justice withers, corrupted at its source.1 It is natural for Hecuba, having none of the rights of a citizen, to appeal to the law of nature2 rather than to the positive law of a specific politica*Quotations are from William Arrowsmith's translation of Hecuba in The Complete Greek Tragedies, vol. 3: Euripides 495 (David Grene and Richmond Lattimore eds. 1955).

If that is what she is doing; for nomos, which Arrowsmith translates as "some absolute, some moral order," has a variety of meanings, of which "natural law" is only one, and not necessarily the one intended. Martha Nussbaum, The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy 400 n.* (1986), argues that it is "a human and not an eternal nomos." Yet her own translation of the sentence in which the word appears-"The G.o.ds are strong, and so is convention (nomos) which rules over them" (id. at 400)-suggests a divine *community. It is also natural for her to speak of revenge, the roots of which are in instinct, rather than of criminal punishment, which is part of positive law. And anyway there are no formal inst.i.tutions of justice in the martial society depicted in the play. Her speech implies that the norms that condemn unwarranted killing precede and bind positive law. Euripides' audience knew, moreover, that Agamemnon would feel the lash of natural law-that he would be killed for having killed his daughter in violation of that law.

"Natural law" has come to be a.s.sociated primarily with the doctrines of the Roman Catholic Church, but it can stand more broadly for deep-seated human feelings-including the indignation with which people react instinctively to gratuitous injuries-that inform but also challenge positive law. These feelings are the foundation of many legal rights and duties, but also of opposition to how rights and duties are defined and administered by positive law. Hecuba's invocation of natural law is expressed in the formulas of an ancient religion yet strikes a modern note.

Although sympathetic to Hecuba's plea, Agamemnon is unwilling to take action against Polymestor. Because Ca.s.sandra, Hecuba's surviving daughter, is Agamemnon's mistress, he would be suspected of partiality in taking the Trojan side of the dispute between Hecuba and Polymestor, an ally of the Greeks. He explains (ll. 852861): So far as justice is concerned, G.o.d knows, nothing would please me more than to bring this murderer to book.

But my position here is delicate. If I give you your revenge, the army is sure to charge that I connived at the death of the king of Thrace because of my love for Ca.s.sandra. This is my dilemma. The army thinks of Polymestor as its friend, underwriting (unless Hecuba thinks the G.o.ds a creation of the human imagination, though if she thought that, she would be unlikely to weaken her plea by saying so to Agamemnon). For how could a purely human artifact rule over the G.o.ds? Nussbaum's interpretation of nomos is questioned in John Kerrigan, Revenge Tragedy: From Aeschylus to Armageddon 352 (1996), and in the references cited in id. at 352 n. 14. But Euripides was notably unorthodox and sometimes put unorthodox speeches into the mouths of his characters.

this boy as its enemy. You love your son, but what do your affections matter to the Greeks?

Put yourself in my position.

Two aspects of Agamemnon's reply are noteworthy. The first is his setting entirely expedient considerations against the precepts of natural law; evidently he believes that human law must be sensitive to public opinion-here that of the Greek army. His outlook is not entirely remote from the modern judge's. A standard judicial flourish is to concede the natural justice of a litigant's case yet decide against him on the ground that positive law, which (the judge will not add) is on one view simply crystallized public opinion, ent.i.tles the opposing party to judgment. And a feature of modern American positive law that it shares with ancient Greek positive law is that citizens have greater rights than aliens.

The second noteworthy aspect of Agamemnon's ruling is the difficulty of doing justice when the judicial function is commingled with the executive. Agamemnon cannot confine his attention to issues of right and duty on the ground that the political consequences of rendering judgment for an enemy national are the business of another branch of government; he is that other branch. Justice under law is facilitated when judges are able credibly to deny that the politics of the case are their business and when the explicitly political branches of government are able to say with equal credibility that they are forbidden to interfere in judicial decision-making. By this shuffle (an aspect of what const.i.tutional theorists call the "separation of powers") legal justice is secured.

While refusing to help Hecuba directly, Agamemnon places no obstacles in the way of her attempting private revenge on Polymestor-and with the aid of her female attendants she succeeds in blinding him and killing his children. Now it is Polymestor's turn to appeal to Agamemnon for justice. With the damage done, Agamemnon can a.s.sume a more judicial stance: "No more of this inhuman savagery now./Each of you will give his version of the case / and I shall try to judge you both impartially" (ll. 11291131). They give their competing versions of why Polymestor killed Polydorus. Persuaded by Hecuba, Agamemnon finds Polymestor guilty of murder and tells him he must therefore bear the consequences that Hecuba has visited on him.

In the course of delivering his judgment Agamemnon makes two re *vealing remarks. The first is that "I should cut a sorry figure in the world / if I allowed this case to come to court / and then refused or failed to give a verdict." The second is that since "we Greeks call [killing a guest] murder . . . [how] could I acquit you now / without losing face among men?" (ll. 12421249). One's initial reaction is that this just proves that Agamemnon is playing a political game. He is interested in the justice of Hecuba's case only insofar as it might move public opinion against him if he acquits Polymestor. By standing aloof from the punishment of Polymestor he has managed to avoid the appearance of siding with a Trojan against a Greek ally while at the same time permitting a sort of justice to be done- although with the great violence and excess that typify revenge as a method of doing justice; Polymestor's children had not been complicit in their father's crime.3 But this a.s.sessment of Agamemnon's position is incomplete. In appealing to what "we Greeks" believe about killing a guest he is invoking a concept of law distinct from either natural law in a transcendental or universal sense or law as public opinion. He is invoking the concept of law as deep-rooted custom fulfilling social needs. Although the reasons for regarding the murder of guests with special abhorrence are not spelled out in the play, they are plain enough. In a society in which trade is valuable but, because there are no public inst.i.tutions of law enforcement, precarious, the duty of hosts to protect guests from afar bearing precious commodities (such as the gold that Priam had sent to Thrace with Polydorus-whose name means either "Giver of Much" or "Receiver of Much") is a potent customary norm. Although justified more plausibly by practical social need than by supernatural edict, it is given supernatural backing to make it more impressive. And it is local-"we Greeks" believe in not murdering guests, not necessarily "we Greeks and you Trojans too," especially since it was a Trojan abuse of hospitality that had touched off the Trojan War.

3. The sense of Hecuba's having gone too far, as so many revengers do, is strongly marked in the play; we learn that she is going to be punished for her excesses by being turned into a dog. See Nussbaum, note 2 above, ch. 13; Judith Mossman, Wild Justice: A Study of Euripides' Hecuba, ch. 6 (1995). It is unsurprising that Hecuba was a popular play during the Renaissance, id. at 236243; recall that Hecuba figures in the player's speech in Hamlet and in Hamlet's ruminations on the speech.

In both respects-local application and pragmatic basis-customary norms are different from natural law, which, being based on the supposed existence of a normative order in nature (including human nature), is touted as universal and compulsory rather than local and expedient. But because a customary norm has deep public support, it is not vulnerable to the same rapid shifts in public opinion as ordinary legislation. It thus resembles a const.i.tutional norm.

I said that the reason Agamemnon could switch sides in the second trial without outraging the Greeks was that Hecuba had done his dirty work for him (punishing Polymestor). This explanation may seem to cast his motives in a disreputably "political" light, which indeed would be consistent with his reiterated concern with saving face. But alternatively we might see in Agamemnon's adjudications legality tempered by prudence. He is the leader, not the tyrant, of the Greek expeditionary force. It behooves him, just as it would a democratic leader, to heed public opinion. The effectiveness of his leadership, and hence his ability to protect that interest, depend upon his prestige, so he must be protective of that too. We catch here a glimpse of the jurisprudence of prudence, of interest-balancing (in a word, of pragmatism)-something that legal formalists abhor but that American judges at least frequently practice.4 The corrupt judge is a durable literary type. But there are two sorts of corruption-the personal, the judge corrupted by greed or personal feeling (such as Angelo's pa.s.sion for Isabel in Measure for Measure, discussed later in this chapter), and the political, ill.u.s.trated by Agamemnon's judging in Hecuba. The former unquestionably violates the rule of law, but the latter blends insensibly into pragmatism. So consider, as a bookend to Agamemnon, Pontius Pilate. Although he is a historical figure-the Roman governor of Judea when Jesus Christ was crucified-the depiction of the trial of Jesus in the Gospels is literature rather than history,5 like that of the trial of another historical figure, Joan of Arc, in Saint Joan.

4. A major theme of my book How Judges Think (2008).

5. On the artistry of the depiction of the trial in John 1819, the version of the trial on which my discussion is based, see John Ashton, Understanding the Fourth Gospel 411414 (2d ed. 2007), and Bart Ehrman, "Jesus' Trial before Pilate: John 18:2819:16," 13 Biblical Theology Bulletin 124, 127 (1983). On the historical inaccuracies of that depiction, see the references in notes 6 and 7 below.

*Jesus is accused by the Jewish priestly establishment of having declared himself the king of the Jews and the son of G.o.d. The Jews bring him before Pilate and ask Pilate to order him executed. At first Pilate demurs, telling the Jewish priests to "take ye him, and judge him according to your law." But they remind him that Roman law forbids them to put anyone to death; Rome claims a monopoly of force in Judea. So Pilate asks Jesus whether he has indeed declared himself the king of the Jews, and Jesus says yes and adds that he came into the world to "bear witness unto the truth. Every one that is of the truth heareth my voice." This provokes Pilate's famous reply: "What is truth?"

Pilate tells the Jews that he finds no fault in Jesus and adds that "ye have a custom, that I should release unto you one at the pa.s.sover: will ye therefore that I release unto you the King of the Jews?" But they say, no, they'd prefer that he release Barabbas, a robber. Pilate is reluctant, sensing in Jesus something more than a Jewish heretic. He asks: "Whence art thou?" Jesus refuses to answer, and the priests warn Pilate that "if thou let this man go, thou art not Caesar's friend: whosoever make himself a king speaketh against Caesar." This is unanswerable, so Pilate orders Jesus crucified. But he writes on the cross "Jesus of Nazareth, the King of the Jews," and turns down the priests' request that he change it to "Jesus of Nazareth, Who Said 'I Am King of the Jews.'"

Caught like Agamemnon and Creon between a civic concept of justice and a universal or supernatural one, Pilate chooses the former. There is no suggestion of any legal irregularity. No one in the trial scene doubts that Jesus's declaring himself the king of the Jews or the son of G.o.d is a capital crime under local law,6 and that if the crime is proved Pilate is authorized to order the execution of the criminal. Since Jesus admits that he calls himself the king of the Jews, his guilt is established. Pilate, not being Jewish, is not offended by Jesus's crime and would like to release him,7 Though apparently it was not. See, for example, Paula Fredriksen, From Jesus to Christ: The Origins of the New Testament Image of Jesus 118 (2d ed. 2000); S. G. F. Brandon, The Trial of Jesus of Nazareth 2559, 140150 (1968); T. A. Burkill, "The Trial of Jesus," 12 Vigiliae Christianae 1 (1958). But I am interested in the trial of Jesus as a story, not as history.

According to the Gospels. But in fact, "though Jesus may have proclaimed that the Kingdom [of G.o.d] would be established not by armed rebellion but by an act of G.o.d, Jesus' Jewish audience would have known-as would Pilate-that such a kingdom exalted Israel and but the Jews prefer that Barabbas be released, and there is no suggestion that it was improper for Pilate to accede to their preference.

There is a hint that Pilate might nonetheless have released Jesus had Jesus answered his question "Whence art thou?"-for when he does not answer, Pilate says, "Speakest thou not unto me? Knowest thou not that I have power to crucify thee, and have power to release thee?" Jesus answers enigmatically but impressively: "Thou couldest have no power at all against me, except it were given thee from above: therefore he that delivered me unto thee hath the greater sin." And "from thenceforth Pilate sought to release him." But when the Jews warn Pilate that if he does so he won't be Caesar's friend, he backs off. That is the point at which prudential considerations tip the balance against Jesus, for the Jews are warning Pilate that Jesus is challenging Rome's authority over Judea.

Like Agamemnon and Creon, Pilate has executive and not just judicial responsibilities-a dangerous combination. In his judicial role his duty is to order the execution of Jesus upon satisfying himself that Jesus has indeed committed a capital offense under local law. In his executive role he has the power to pardon a criminal, but in the exercise of the pardon power, which is extralegal, he has to consider the interests, such as the interest in public order, that the executive branch of government is responsible for protecting. As James Fitzjames Stephen, whom we met in chapter 2, explained: The position of Pilate was not very unlike that of an English Lieutenant-Governor of the Punjab . . . Pilate, more or less closely a.s.sociated with a native ruler, was answerable for the peace probably of the most dangerous and important province of the empire . . . It is surely impossible to contend seriously that it was his duty, or that it could be the duty of anyone in his position, to recognize in the person brought to his judgment seat, I do not say G.o.d Incarnate, but the teacher and precluded imperial dominion. In the tinderbox of early first-century Palestine, crucifixion of such a prophet would be a prudent Roman response." Ehrman, note 5 above, at 125. See also id. at 129, and the references in note 6 above-all of which suggest that James Fitzjames Stephen (see text at note 8 below) had the correct historical understanding. The sympathetic light in which the Gospels bathe Pilate is another example of the historical inaccuracy of the Gospel account. Elaine Pagels, The Origin of Satan 2834 (1995).

*preacher of a higher form of morals and a more enduring form of social order than that of which he was himself the representative. To a man in Pilate's position the morals and the social order which he represents are for all practical purposes final and absolute standards. If, in order to evade the obvious inference from this, it is said that Pilate ought to have respected the principle of religious liberty as propounded by [John Stuart] Mill, the answer is that if he had done so he would have run the risk of setting the whole province in a blaze.8 One's impression of Pilate, as of Agamemnon and (as we'll shortly see) Creon, is of a political trimmer deaf to the claims of natural law. But really all three are just legal positivists. They hold the law that is posited by the recognized political authority separate from claims of natural or supernatural justice, relegating those claims to appeals for executive clemency. Confusion arises when, as in all these cases, the executive and the judicial authority are combined in one person.

Pilate's question "What is truth?" is an a.s.sertion of legal positivism. He has already determined the truth of the priests' accusation against Jesus-that he had said he was the king of the Jews. Pilate's question comes in response to Jesus's claim to be the bearer of truth, meaning metaphysical truth. That is not the business of a judge administering positive law; his business is to find mundane facts and apply the law to them. Pilate's rhetorical question is an acknowledgment that he lacks privileged access to truth. He can imagine no better way of deciding what to do with Jesus than to defer to the political preferences of the local establishment.

When positive law is not enforced, moreover, private revenge can come roaring back, with fatal consequences. We saw that in Hecuba, as well as in the works discussed in the preceding chapter, and consider now Beatrice Cenci. A distant descendant of Euripides' Hecuba, she is the protagonist of Percy Bysshe Sh.e.l.ley's lurid poetic drama The Cenci (1819), a pastiche of Elizabethan and Jacobean revenge tragedy with echoes of Shakespeare (especially Macbeth), though the mood is closer to that of Webster or Tourneur, and thematically it is closest to Hecuba and Michael Kohlhaas. Count Cenci, a Roman magnate of the sixteenth century and a 8. Stephen, Liberty, Equality, Fraternity 113115 (1991 [1874]).

real historical figure whose misdeeds Sh.e.l.ley seems not to have exaggerated, is a monster to put Polymestor to shame. Insanely avaricious, s.a.d.i.s.tic, and s.e.xually perverted, he throws a banquet to celebrate the deaths of two of his sons. When Beatrice, his daughter, remonstrates, he rapes her. She knows that he plans to do away with his remaining sons and with his wife (Beatrice's stepmother) and to continue to use her s.e.xually-he even threatens to impregnate her so that she may have a child whose physical appearance will be to her a lifelong hateful reminder of him. Despairing of legal justice-for the legal system, administered by the Pope, is corrupt and the Pope has rejected Beatrice's plea to take action against her father -Beatrice arranges for her father to be murdered. She is arrested, tried, and convicted when her brother and stepmother, both of whom were in on the plot, confess under torture. The play ends with all three awaiting execution. The Pope is not as forbearing to Beatrice as Agamemnon was to Hecuba.

Beatrice hurls magnificent defiance at the evil judge presiding at her trial and eloquently denounces the use of the rack to extract confessions from her accomplices. Yet we are left with the sense that she exhibited a deep character flaw in giving in to the impulse, understandable as it was, to take revenge against her father. At the beginning of the play she is a figure of saintly patience, as her name suggests, but when she decides to kill her father she hardens. The play disapproves of her having taken the law, Hecuba-fashion, into her own hands. For one thing, right after the murder, an officer of the Pope appears with a warrant to arrest Count Cenci- so maybe human justice is not so hopeless as Beatrice had thought. For another, by making her stepmother and brother complicit in the plot she condemns them-and, what is more, refuses to confess while they (and the "triggerman," whom she later persuades to retract the confession he gave under torture) are being tortured.

Sophocles' play Antigone is set in Thebes, now ruled by Creon after the fall of Oedipus. Polynices, one of Oedipus's sons, has revolted and attacked the city, defended by his brother, Eteocles. Both are killed in the fighting. Creon orders an honorable burial for Eteocles but decrees that Polynices shall remain unburied-a hideous punishment in the theology *of the ancient Greeks and a recurrent motif in Greek literature (it figures in both the Iliad and Hecuba). Antigone, a daughter of Oedipus by his incestuous marriage and therefore a sister of Polynices and Eteocles, defies the decree and buries her dishonored brother. Her action is discovered, and in a brief trial scene in which she a.s.serts the primacy of divine law and Creon the inviolability of his decrees, he condemns her to death for having violated his burial interdiction. Horrible things ensue, including the death of Creon's wife and his son, who is betrothed to Antigone and decides to die with her. In failing to honor the claims of the G.o.ds of the underworld, who insist on proper burial without which the souls of the dead cannot be received into the underworld, Creon has acted with impiety and must be punished.

Yet it would be a mistake to think Creon simply a moral monster who gets his just deserts. To give both Polynices, the traitor, and Eteocles, the hero, honorable burial would encourage future revolts by blurring the moral distinction between the two brothers. Having therefore decreed that Polynices shall remain unburied-a decree with all the presumptive legitimacy of a modern statute or court order-and having prescribed the death penalty for anyone who violates the decree, Creon is confronted by a brazen challenge to his authority, and to the authority of the law, in Antigone's actions. It does not help matters that Antigone is a woman, that she is the daughter of the former ruler and the sister of the rebel who was to remain unburied, and that she states her position with uncompromising self-righteousness rather than asking for mercy-she gives Creon no way out of condemning her without a severe loss of face. (There is a parallel to the confrontation between Achilles and Agamemnon in Book I of the Iliad.) It is a no-win situation for him, and he is punished terribly. The play is Creon's tragedy as well as Antigone's.

The natural law that Antigone sets up in opposition to Creon's positive law is not primarily a decree from on high commanding proper burial of the fallen. It is rather a duty founded on the tie of blood between sister and brother. Like Clytemnestra and the Furies in Eumenides, Antigone places bonds of blood above the political bonds (loyalty to Thebes, to the polis) that Creon's decrees are intended to cement. The ferocity of her challenge to Creon may reflect the persistence of the revenge ethic in the rudimentary political culture depicted in the play.9 We have seen how that ethic encourages the formation of tightly knit family units and undermines loyalty to larger social groups. Modern people understand, as Antigone did not, that loyalty to family must be balanced against loyalty to state, that a law based on nature is not "higher" than one based on culture, and that ties of blood do not ent.i.tle people to defy positive law, though we make some allowances for the emotional effects of such ties, for example by requiring judges to disqualify themselves in cases in which their close relatives are parties or counsel. We moderns have also learned that intense religious feeling can undermine social peace. Antigone and Creon, unable to compromise the rival claims of religious and civic duty, fail to achieve the sort of via media attempted by the religion clauses of the First Amendment to the U.S. Const.i.tution.10 The normative ambiguities of "nature" are at the heart of King Lear. Although not usually considered one of Shakespeare's "legal" plays, it has three trial scenes, and they help to focus the audience's attention on the themes, which are basic to the play, of nature and natural law. First is the mock trial of Lear's evil daughters by Lear and his disheveled entourage on the heath. Next is the trial of Gloucester on false charges of treason ginned up by his b.a.s.t.a.r.d son Edmund; it ends in a verdict of guilt and Gloucester's punishment by blinding. Last is the trial by battle in which Edgar, Gloucester's legitimate son, kills Edmund. Only the second trial complies with the forms of law in a modern sense (modern to Shakespeare as well as to us)-and it is a sinister farce. The first, an ostensible farce, renders true though ineffectual justice by condemning the evil daughters.

The third trial, the trial by battle, harks back to medieval English law, when G.o.d was believed willing to decide legal disputes by awarding victory to the combatant whose cause was just. But whether to infer from Edgar's victory that natural law is vindicated in Lear depends on the 9. See R. P. Winnington-Ingram, Sophocles: An Interpretation (1980), esp. ch. 6.

10. See Th. C. W. Oudemans and A. P. M. H. Lardinois, Tragic Ambiguity: Anthropology, Philosophy and Sophocles' Antigone 160169 (1987).

*meaning of "nature" and "natural." An ambivalent note is sounded early, in Edmund's soliloquy (I.2.122) that begins: "Thou, Nature, art my G.o.ddess; to thy law / My services are bound." He explains that his having been conceived "in the l.u.s.ty stealth of nature" partook more of nature's vital essence than conception "within a dull, stale, tired bed" of married persons. Marriages of aristocrats-Gloucester is an earl-were likely to be loveless because they were arranged by the fathers of the bride and groom. So Edmund resolves to supplant Edgar, and later their father, by whatever means lie to hand.

Regan and Goneril are unnatural in their lack of filial piety, but they are only too natural, in Edmund's sense, in their selfishness, pitilessness, and unbridled s.e.xuality.11 They are married women yet compete for Edmund's bed, and Goneril has an affair with her servant Oswald. Lear is unnatural in his initial rejection of Cordelia, but all too natural in his childish desire to be loved without limits and to enjoy the pleasures of life without its responsibilities. From the standpoint of evolutionary biology, it is natural for parents to love their children more than they are loved by them, especially once the parents are no longer producing children; having thus ceased to spread their genes through reproduction, they can enhance their inclusive fitness (the frequency of their genes in future populations) only by helping their children survive and reproduce. Lear doesn't realize that from a biological standpoint his children should not love him as much as he loves them.

We are shown Darwin's nature red in tooth and claw. The sense of justice to which Lear (when the scales fall from his eyes) and Gloucester appeal is not a normative order in nature, as we find in the Greek tragedies, but a complex of civilized values, built on property and hierarchy, that overrides the riotous claims of nature and prescribes the status and correlative rights and duties of Lear, Edmund, Edgar, Oswald, and the rest. Yet an Elizabethan audience, imbued with medieval values, which were the orthodox values of Renaissance England as well, would have called the behavior of Edmund, Regan, and Goneril (and of Lear in initially re 11. Bradley remarked "the incessant references" in King Lear "to the lower animals and man's likeness to them." A. C. Bradley, Shakespearean Tragedy: Lectures on Hamlet, Oth.e.l.lo, King Lear, Macbeth 218 (1969 [1904]) (footnote omitted).

jecting Cordelia) "unnatural" and Edmund's defeat by Edgar therefore a vindication of natural law.12 Cordelia's cool declaration of loving her father "according to my bond" would have been thought to express "a service which is perfect freedom . . . part of the right ordering of things; of the nature of things."13 The idea that in behaving like animals Edmund, Regan, and Goneril are acting unnaturally is not an absurd idea, nor one that modern science has discredited. Man is an animal, but not every animal has the same nature. It is in the nature of a bear to hibernate, but a man who hibernates is not acting naturally. Aquinas, from whom the orthodox Renaissance conception of nature derives, had claimed that human nature differs from animal nature in possessing a capacity for reason not found in animals.14 But he recognized that the ability to reason does not dictate its employment to good ends. Shakespearean villains use their reason to concoct and execute their villainies, so if we call them unnatural there is no escape from dividing human nature into a good and a bad nature. This makes naturalistic morality impossible; "nature" will no longer tell us where to make the cut; social norms become the basis of moral judgments. It is the defiance not of nature but of convention, of bonds that define social position (as distinct from contractual bonds, such as the pound-of-flesh bond in The Merchant of Venice), that marks the behavior of the wicked characters, and of Lear at the outset of the play, as unnatural. Cordelia honors her filial duty, a bond of nature, but places it no higher than marital duty, a social bond, and so rejects Lear's claim to the entirety of her affection.

Despite the play's emphasis on the duty to keep one's promises, a cornerstone of a commercial society, and although no play of Shakespeare contains a stronger warning against imprudence in the management of On the two natures in King Lear, see John F. Danby, Shakespeare's Doctrine of Nature: A Study of King Lear 4353 (1949).

Robert Speaight, Nature in Shakespearian Tragedy 94 (1955). The audience might also have thought her, much like Antigone (or indeed Hamlet in the throne-room scene of Act I, scene 2, a parallel to the opening scene in King Lear), stiff-necked, tactless, and even subversive in defying the king in the presence of the entire court, including foreign eminences.

See Thomas Aquinas, Summa Theologica, vol. 1, pp. 10091010 (1947) (question 94, articles 23).

*one's affairs,15 Edmund and possibly even the bad daughters represent the values of nascent capitalism and Lear and his party the vanishing feudal values.16 "'I am myself alone'-that is Edmund's thought . . . This is the free-for-all society, the jungle of unrestricted compet.i.tion, the swaggering, rampant capitalism of the New Age. Here is adventure instead of custom, contract instead of status, man instead of G.o.d."17 Regan and Goneril reduce Lear's entourage of knights from the 100 he had stipulated when he divided his kingdom between the two daughters to 50, to 25, and then to zero, because of cost and lack of need; the daughters' own retainers can serve Lear. One is put in mind of the decision of modern American corporations to reduce, sometimes to zero, the health benefits they give their retired employees when the costs come to seem excessive; corporations can do this lawfully because health benefits, unlike pension benefits, do not vest by operation of law.

Lear rebuts Regan's a.s.sertion that he doesn't need his own retainers by pointing out that "need" is not the same as value-"nature needs not what thou gorgeous wear'st,/Which scarcely keeps thee warm" (II.4.271272). That is a nice economic point, suggesting that even Lear's mind has been infiltrated by market thinking-Cordelia's too when she refuses to give her entire love to Lear because she must reserve half for her husband, as if love were a scarce good. (A strange idea, though-if you have a second child, do you then love your first child half as much as before?) But these are exceptions to the good characters' rejection of commercial values. The duties that the play approves are based on status rather than on free contracting. Lear does not engage in cost-benefit a.n.a.lysis, and his failure to grasp the force of self-interest is his undoing, while Edmund, Oswald (a steward and thus a kind of businessman), and the bad daughters are parodies of instrumental rationality, busily maximizing their shortsighted self-interest.

As Barbara Everett points out in Young Hamlet: Essays on Shakespeare's Tragedies 61 (1989), Lear is imprudent in dividing his kingdom, in thinking that he can retain the perquisites of power without the power, and in basing his a.s.sessment of his daughters' love for him on their public protestations (cheap talk).

See, for example, Paul Delany, "King Lear and the Decline of Feudalism," in Materialist Shakespeare 20 (Ivo Kamps ed. 1995).

Speaight, note 13 above, at 95. On Edmund as an instrumental reasoner, see Bradley, note 11 above, at 250251.

Feudal values have gone out of fashion; and, monster that he is, Edmund, in defending b.a.s.t.a.r.ds in his "Thou, nature, art my G.o.ddess" soliloquy, antic.i.p.ated by more than 350 years the Supreme Court's ruling that governmental discrimination against persons born out of wedlock (the refined modern term for "b.a.s.t.a.r.ds") must be shown to be justified by important social interests in order to pa.s.s const.i.tutional muster.18 But there is irony in casting Edmund in the role of civil libertarian avant la lettre, since no one discriminates against him. Gloucester treats him just as if he were his lawful son; indeed Gloucester's tragedy stems from his treating his illegitimate son too well, in fatal disregard of nature as convention.

Because Edmund was born after Edgar, the rule of primogeniture would prevent him from inheriting even if he were legitimate. So he rails against primogeniture too-another sign of his modernity, since primogeniture sacrifices merit to the arbitrariness of birth order. Like Claudius in Hamlet, Edmund is the younger brother possibly fitter to rule.

If we put Edmund's soliloquy alongside Shylock's "Hath not a Jew eyes" speech and Hamlet's references to the injustices that result from the accidents of birth,19 we have impressive rhetorical support for something like the modern notion of the equal protection of the laws. This is not to say either that it was Shakespeare's notion or that it is the dominant notion in the plays. Shakespeare's private opinions are unknown, and the plays are not united by a single perspective on ethical and political issues.

The most celebrated of Shakespeare's "legal" plays, The Merchant of Venice, is also the one most concerned with commerce.20 The a.s.sociation of positive law with commercial values is no accident. The aristocrat Bas 18. See Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972); Gomez v. Perez, 409 U.S. 535 (1973); Jimenez v. Weinberger, 417 U.S. 628 (1974); Trimble v. Gordon, 430 U.S. 762 (1977).

"Oft it chances in particular men, / That for some vicious mole of nature in them, / As, in their birth-wherein they are not guilty, / Since nature cannot choose his origin- / . . . [Their] virtues else, be they as pure as grace, / As infinite as man may undergo, / Shall in the general censure take corruption / From that particular fault" (II.4.2336).

Everett, note 15 above, at 41, calls the play "a romance of millionaires." See also A. G. Harmon, Eternal Bonds, True Contracts: Law and Nature in Shakespeare's Problem Plays, ch. 4 (2004).

*sanio needs money to woo an heiress, Portia, in proper style. But he is a spendthrift and has no a.s.sets to pledge as security for a loan. His friend Antonio, the merchant of the t.i.tle, is wealthy and generous, but at the moment illiquid, all his a.s.sets being on board ships at sea. The two men approach Shylock for the loan. There is no love lost between Antonio and Shylock. Antonio lends money but charges no interest, thus competing unfairly, as it seems to Shylock, with the Jewish moneylenders. In the world of the play, lending at interest is no longer illegal for Christians, as it had been during the Middle Ages, but it is not entirely respectable. That was the position in Shakespeare's England as well. Since 1571 the lending of money at interest had been de facto legal,21 provided that the annual interest rate did not exceed 10 percent.22 Besides underselling Shylock, Antonio has made no secret of his contempt for Jews-has indeed kicked and spat on Shylock (bizarre behavior for a merchant and out of character for the mild, pa.s.sive Antonio). Shylock hates Antonio both because he is a Christian and because of the specific wrongs, commercial and personal, that Antonio has done to him. Nevertheless he agrees to lend him the money Ba.s.sanio wants and demands no interest-just Antonio's pledge of a pound of his flesh as security against a default. The text suggests that Shylock is hoping that Antonio will default, so that Shylock can kill him, and is buying this option with the forgone interest. But Shylock calls the pledge a "merry bond," and this has led a school of revisionists to argue that his intentions are benign. The long-standing effort to cast Shylock as the real hero of the play and Shakespeare as a cryptic semitophile crests in Richard Weisberg's claim that "Jewish commitment finally prevails over Christian mediation in The Merchant of Venice."23 In fact Shylock is a villain and the See Ian Ward, Shakespeare and the Legal Imagination 124126 (1999); Norman Jones, G.o.d and the Moneylenders: Usury and Law in Early Modern England 7780, 145 (1989); P. S. Atiyah, The Rise and Fall of Freedom of Contract 66 (1979) ("a reasonable return on a loan was coming to be given a grudging acquiescence").

Shakespeare's father had been prosecuted for charging more. James Shapiro, Shakespeare and the Jews 99 (1996).

Weisberg, Poethics and Other Strategies of Law and Literature 103 (1992). Weisberg, who likes to invert orthodox interpretations of literary works, regards Portia rather than Shylock as the vengeful spirit and Shylock as deficient only in moderation. Id. at 209210.

"merry bond" a sinister trap, its character brought out by the contrast with the "friendship bond" that metaphorically secures Antonio's loan to Ba.s.sanio24 and by Shylock's lack of any gift or taste for merriment.

Not that Shylock is a villain tout court. 25 "The seeds of sympathy are there . . . He [Shakespeare] simply tried to imagine, within the confines of the plot, and within the limits that his culture set him, what it would be like to be a Jew. But dramatic imagination, when it is pitched at the Shakespearean level, becomes a moral quality, a form of humanism."26 For "Shakespeare's greatness, his 'impersonality' . . . in his best plays, lies in the fact that, whatever univocal insights or affirmations may be expressed within any work, they are thoroughly dramatised-that is, set within a complex interlocutory process such that they are never the 'final vocabulary' of individual works."27 There is a saying among actors that no man is a villain in his own eyes. One needs this adage to act a villain's role convincingly. Shakespeare, himself an actor, internalized the adage.

Soon after the deal is struck, Shylock, inexplicably abandoning his rule of never having social intercourse with Christians, goes to dinner at Ba.s.sanio's house. While he is there his daughter, Jessica, runs off with her Christian lover, taking the family jewels with her. (She later marries him and converts to Christianity.) This incident makes Shylock mad for revenge. By a happy coincidence the ships carrying Antonio's goods are just then lost at sea and as a result the loan goes into default. Shylock sues to enforce the bond. A trial is held, presided over by the Duke of Venice. Antonio asks Shylock for mercy (not forcefully, however-he is half in love with easeful death). Shylock refuses. The Duke also urges mercy, also to no avail. Ba.s.sanio has succeeded in marrying Portia and so has money enough to repay the loan with generous interest, and he offers to do so; Shylock spurns the offer. He is subject to law, unlike Achilles or Hamlet, and is determined to use his legal rights as the means of his revenge. Mi 24. Harmon, note 20 above, at 8283.