Law and Literature Part 6

25. See John Gross, Shylock: A Legend and Its Legacy (1992); Shapiro, note 22 above; Thomas Moisan, "'Which Is the Merchant Here? And Which the Jew?': Subversion and Recuperation in The Merchant of Venice," in Shakespeare Reproduced: The Text in History and Ideology 188 (Jean E. Howard and Marion F. O'Connor eds. 1987).

Gross, note 25 above, at 349.

David Parker, Ethics, Theory and the Novel 60 (1994).

*chael Kohlhaas tried it too, and only after failing turned to private revenge. Shylock looks to law to revenge himself against Antonio in as gruesome a form as an avenger could desire.

In the nick of time Portia appears, disguised as a (male) doctor of laws. At first she pretends to be a legal stickler and wins Shylock's praise. This interlude serves two purposes. It puts Shylock on record as accepting her as an authoritative exponent of the law and it hardens his resolve not to accept Ba.s.sanio's offer-which Portia had funded-of double Shylock's princ.i.p.al back. Then she turns on him. She points out that the bond refers to flesh, not blood, and says that if Shylock sheds a drop of Antonio's blood while executing the bond he will not be protected by the bond and therefore will be guilty of murder. Which means that Shylock is already guilty of a capital crime-plotting the death of a Venetian citizen28-and should be executed! Everyone is astonished by Portia's sagacity, and no one offers a counterargument. But to demonstrate that Christians are more merciful than Jews, the Duke offers to pardon Shylock if he will surrender all his wealth and convert to Christianity. He protests, and either half or maybe the whole forfeiture is then remitted,29 except that he must leave all his wealth at his death to Jessica, whom he had disinherited when she ran away. He accepts the modified offer and departs silently.

The legal aspects of The Merchant of Venice are on one level absurd. No justification is offered for the pound-of-flesh bond-for example, that it is intended to incite Antonio to greater than usual efforts to safeguard his a.s.sets so that he does not default, in the same way that a loan shark's threat to break the knees of a defaulting borrower increases the latter's incentive to repay the loan. By agreeing to such a term, moreover, the bor This aspect of the trial is comprehensively a.n.a.lyzed in Charles Ross, Elizabethan Literature and the Law of Fraudulent Conveyance, ch. 6 (2003), which notes that sixteenth-century English law was unclear about whether attempted murder was a crime. Id. at 119121. The endnotes to Ross's chapter, id. at 124131, contain references to virtually the entire scholarly literature on law in The Merchant of Venice.

Half is returned to Shylock outright, and half is to be held by Antonio in "use" (trust) for Jessica upon Shylock's death. If Shylock is to be the beneficiary of the trust during his lifetime, then the whole forfeiture has been remitted subject only to Jessica's rights on his death. If the income of the trust is to acc.u.mulate for Jessica, only half of the forfeiture has been remitted. It is uncertain which interpretation is correct.

rower rea.s.sures the lender that he is indeed determined to repay-the consequence of defaulting would be too awful.

The bond is no doubt meant to remind the audience that Jews were thought to drink the blood of Christians at Pa.s.sover, and the reminder is apropos, since Shylock's motivation appears to be the long-shot chance of eliminating his hated Christian compet.i.tor. Although "penal bonds with conditional defeasance"-the promised penalty is canceled if the giver of the bond repays the loan-were enforceable in Shakespeare's time, no civilized sixteenth-century legal system (and Venice is depicted as a civilized state) would have enforced a bond in which the penalty was death or mutilation rather than money. Indeed, by the end of the sixteenth century the chancery court, the English court of equity, was relieving some debtors against merely pecuniary penalties in bonds.30 Today a penalty clause-that is, a contract provision that specifies an amount of damages to be awarded in the event of a breach of the contract that exceeds a reasonable estimate of the loss likely to be caused by the breach- is unenforceable. Whether penalty clauses should be unenforceable is another matter; such a clause might reduce interest rates by giving the lender a greater expectation of being repaid.31 But no one defends a clause that would permit the lender to kill, mutilate, or beat the defaulting borrower.

A defaulting borrower has, moreover, a right, called the "equity of redemption," to retain the property that he is about to forfeit by his default by coming up with the money that he owes, even though it is overdue, within a reasonable time. So a real court would have relieved Antonio from the forfeiture if before it took place the money due Shylock was ten See A. W. B. Simpson, "The Penal Bond with Conditional Defeasance," 82 Law Quarterly Review 392, 416 (1966); Simpson, A History of the Common Law of Contract: The Rise of the Action of a.s.sumpsit 118119 (1975); Thomas C. Bilello, "Accomplished with What She Lacks: Law, Equity, and Portia's Con," in The Law in Shakespeare 109, 115116 (Constance Jordan and Karen Cunningham eds. 2007); William H. Loyd, "Penalties and Forfeitures," 29 Harvard Law Review 117, 123 (1915); Theodore Ziolkowski, The Mirror of Justice: Literary Reflections of Legal Crises 167172 (1997). The Roman Law of the Twelve Tables allowed creditors to cut up a defaulting debtor into as many pieces as there were creditors-but that is a law of the fifth century bc.

On the economics of penalty clauses, see Richard A. Posner, Economic a.n.a.lysis of Law 127130 (7th ed. 2007).

*dered,32 as it was, by Ba.s.sanio-and with extravagant interest. Since Shylock's loan to Antonio was for only three months, Ba.s.sanio's offer to double Shylock's princ.i.p.al amounts to an offer of interest at an annual rate of 400 percent. Shylock's refusal of this magnificent offer confirms that the bond was a gamble, with Antonio's life the stake. (The alternative interpretation that it is only because of Jessica's defection that Shylock insists on enforcing the bond is implausible; Antonio was not complicit in that defection and mercy is as alien to Shylock as merrymaking.) Yet no one in the play doubts the legality of Shylock's demand until Portia comes up with her hypertechnical argument-which Shylock does not attempt to rebut by pointing out that the bond must implicitly have authorized him to shed Antonio's blood, since otherwise he could not get his pound of flesh. Nor does he argue that if Antonio were killed by him it would be by operation of law; he has no intention of killing Antonio unless the court rules that he is legally ent.i.tled to do so.33 Bad motives would not invalidate a lawful act.

Hypertechnical arguments may seem the ant.i.thesis of equity, but they can actually be complementary to it. Both are devices for circ.u.mventing bad laws, whether bad because they are too strict or bad because they are riddled with loopholes. The letter killeth but the spirit giveth life. So if a judge or lawyer wants, for reasons of equity, to kill a law (in this case the legal principle of enforcing contracts however savage they may be), literalism may be his best weapon, as it was Portia's.

In fact it was her only weapon-and had to be because the absence from the play of any principle for ameliorating penalties and forfeitures in contracts is a dramatic imperative. The audience has to take seriously the possibility that Antonio will be killed, which it would not do if deadly 32. The term "equity of redemption" and its application to mortgages come later in English legal history. But the use of the concept to relieve against other types of forfeiture appears to have been established by the beginning of the seventeenth century, and perhaps much earlier. See George E. Osborne, Handbook on the Law of Mortgages 1215 (2d ed. 1970). The play of course is set in Venice rather than England, but Shakespeare's original audience would have a.s.sumed that, unless otherwise indicated (as may be the case, we shall see, in Measure for Measure), the law depicted in his plays is similar to English law.

33. Bilello, note 30 above, at 122.

penal bonds merely were unenforceable. True, the additional rabbit that Portia pulls out of her hat-the law making it a capital offense to plot to kill a Venetian-undermines the possibility that Antonio will be killed because it invalidates Shylock's bond. But her revelation of the existence of that law comes as a surprise to everyone; until then it has seemed that Antonio is doomed. Yet shouldn't Antonio and Shylock, at least, have known about the law when the bond was signed, or at the latest when the trial began? But there are plenty of obscure laws; and, realistic or not, the invocation of this law is dramatically necessary in order to cap Shylock's defeat. Were he simply unable to enforce the bond he would be disappointed but would get to keep his wealth, except perhaps for the money he had lent to Antonio; he would not have to convert to Christianity to save his life; and there would be no occasion for a demonstration of Christian mercy. Shakespeare cannot be criticized for sacrificing plausibility to dramatic effect.34 The law against plotting to kill a Venetian has still another dramatic function: "At the last moment when, through his conduct, Shylock has destroyed any sympathy we may have felt for him earlier, we are reminded that, irrespective of his personal character, his status is one of inferiority. A Jew is not regarded, even in law, as a brother."35 The lack of realism in the play's treatment of law extends to the procedures as well as the substance of law.36 Portia not only is an impostor but has an undisclosed interest in the outcome of the trial; the parties have no Another unrealistic touch in The Merchant of Venice is the simultaneous loss at sea of all the ships carrying Antonio's cargoes, and their miraculous reappearance. And no one asks why Antonio did not protect himself from default by insuring his cargoes, as he could readily have done. See Luke Wilson, "Drama and Marine Insurance in Shakespeare's London," in The Law in Shakespeare, note 30 above, at 127; H. A. L. c.o.c.kerell and Edwin Green, The British Insurance Business: A Guide to Its History and Records 45 (2d ed. 1994); C. F. Trenerry, The Origin and Early History of Insurance, ch. 25 (1926).

W. H. Auden, "Brothers and Others," in Auden, The Dyer's Hand and Other Essays 218, 229 (1962).

As emphasized by Bilello, note 30 above. But John T. Doyle, in a curious old article, "Shakspere's Law-The Case of Shylock," Overland Monthly, July 1886, p. 83, claimed that the trial of Antonio was not much more irregular than one might have expected in a nineteenth-century Spanish or Mexican courtroom.

*lawyers; Venice has no professional judges; and a civil case ends in a criminal conviction.37 And yet the play is about law in a meaningful sense. To begin with, the character of Shylock is a suggestive conflation of three dispositions: the commercial ethic (Shylock as "economic man"), vengefulness, and the use of the letter of the law to accomplish an unjust end. Shylock is at once the Jew stereotyped as modern, commercial man and the Jew stereotyped as Old Testament avenger (an eye for an eye) who rejects the New Testament's command to forgive thine enemy. And though he prefers revenge to extravagant interest on his loan, he is moved by avarice as well: "I will have the heart of him if he forfeit, for were he out of Venice I can make what merchandise I will" (III.1.119121).

I noted in the last chapter that revenge molts into corrective justice. The commission of a wrong creates a right to redress, though it is a right channeled through law rather than left in the hands of the victim or his family. Equivalently, it creates a debt of sorts by the wrongdoer to the victim. This can help us see that tort and criminal law, on the one side, and contract law, on the other, deal with forced and voluntary exchanges respectively and thus are twin halves of a theory of legal rights and duties modeled on reciprocal exchange in the marketplace.

Antonio is in some respects Shylock's opposite. A depressive bachelor and a foe of lenders who charge interest, he is generous to the point of improvidence, and because he is depressed and lacks a family is quite willing to die to save Ba.s.sanio."I am a tainted wether of the flock,/Meetest for death. The weakest kind of fruit / Drops earliest to the ground, and so let me" (IV.1.114116). In his debate with Shylock over whether there is biblical authority for lending at interest we may sense an a.n.a.logy to the temptation of Christ by a plausive Satan; Antonio even complains about the devil quoting Scripture. In rejecting Old Testament vengefulness and Pharisaic preoccupation with formal, rigid observances of "the Law"

37. The fact that the Duke of Venice has to send to Padua to find an expert on the law of Venice may seem another unrealistic aspect of the law in the play, but it is not. Padua was both a center of legal studies and a possession of Venice, although Shakespeare does not bother to tell the audience either of these facts. And it was customary in the Italian legal system, as in Continental European legal systems generally, for judges to solicit legal opinions from scholars. Charles Fried, "The Lex Aquila as a Source of Law for Bartolus and Baldus," 4 American Journal of Legal History 142 (1960).

(what Aquinas called the "Old Law"), Antonio rejects Shylock's dominant characteristics. For Shylock to have gotten his pound of flesh would have been a reenactment of the crucifixion of Jesus Christ at the behest of the Jewish priestly establishment,38 or a devil's taking literally St. Paul's argument against Jewish ritual that "circ.u.mcision is of the heart."39 Yet, paradoxically, there is more than a trace of Shylock in Antonio.40 In his joylessness, wifelessness, melancholy, antisemitism, and essential solitariness, he is a Christian mirror of Shylock. And both are in business. The well-born, independently wealthy, clever Portia, uncontaminated by trade, personifies an attractive alternative lifestyle to that of the gloomy antagonists. Worldly-even sensual, in comparison with the frugal, chaste, and self-denying natures of both Shylock and Antonio-she is not above using legal technicalities, and even ethically dubious tricks, to save a life, just as she is not above bending the terms of her father's will to help the debonair and easygoing Ba.s.sanio win her hand in compet.i.tion with the other suitors, or above tricking Shylock out of settling his dispute with Antonio for double his princ.i.p.al back, which would have come out of her fortune. (The ring trick in Act V provides still another example of Portia's manipulation of contracts.) Whatever the law might say, the enforcement of the bond would be monstrous and Portia does what is necessary to prevent it. Yet she does so without establishing a bad precedent or damaging Venice's commercial standing, which, as Shylock repeatedly points out, requires that an alien (a Jew could not be a Venetian citizen in the sixteenth century) receive the same justice as a citizen.

We need to distinguish at this juncture between "law" and "equity." Equity is the recognition, first articulated by Aristotle, that strict rules of law, however necessary to a well-ordered society, must be applied with sensitivity and tact so that the spirit of the law is not sacrificed unnecessarily to the letter. The evolution of a legal system is from strict and simple rules to looser, more flexible standards. The former are easier to create, Other Christological features of the depiction of Antonio are his bachelorhood and his abuse of Shylock-an echo of Christ's driving the money changers from the Temple.

39. Shapiro, note 22 above, at 126128.

That a Christ figure should be depicted ambivalently is a challenge to the argument of the school of Tillyard (see chapter 1) that Shakespeare's plays endorse orthodox Christian values.

*articulate, and enforce. This is important in a society in which absence of literacy and of reliable techniques for factual inquiry and complex administration makes it imperative that legal rights and duties be left simple. We should not be surprised that a member of a primitive society would side with Shylock against Portia.41 As techniques for a more supple and nuanced administration of law emerge, the price of applying simple rules to situations in which that application denies substantive justice comes to seem too high and strict "legal" rules become overlaid with flexible "equitable" principles.42 Yet it is understandable that an unpopular alien would mistrust a jurisprudence that gives judges discretion to mitigate the rigors of legal rules; for he could expect any discretion to be exercised against him. A punctilious legalism is the pariah's protection. But he who lives by the letter of the law may perish by it.

One needs to understand, however, that the spirit of equity in the play is just that-spirit, not legal substance. In sixteenth-century England "equity" bore three senses.43 It was the spirit of the law (justice, the administration of law in accordance with conscience), a principle of loose interpretation of statutes (the Aristotelian sense), and the body of legal principles, supposedly drawn from equity in the first sense, administered by the Lord Chancellor, who presided over the chancery court, the court of equity or "conscience." Portia's "quality of mercy" speech (IV.1.182203) is not a legal argument but an appeal to Shylock's sense of 41. Isak Dinesen told the story of The Merchant of Venice to the Somali tribesman Farah: "Did the Jew give up his claim? He should not have done that. The flesh was due to him, it was little enough for him to get for all that money." "But what else could he do," I asked, "when he must not take one drop of blood?" "Memsahib," said Farah, "he could have used a red-hot knife. That brings out no blood." "But," I said, "he was not allowed to take either more or less than one pound of flesh." "And who," said Farah, "would have been frightened by that, exactly a Jew? He might have taken little bits at a time, with a small scale at hand to weigh it on, till he had got just one pound. Had the Jew no friends to give him advice? . . . He could have done that man a lot of harm, even a long time before he had got that one pound of his flesh." I said: "But in the story the Jew gave it up." "Yes, that was a great pity, Memsahib," said Farah.

Dinesen, Out of Africa and Shadows on the Gra.s.s 269270 (1985).

42. See Henry Sumner Maine, Ancient Law (1861).

43. See, for example, Bradin Cormack, A Power to Do Justice: Jurisdiction, English Literature, and the Rise of Common Law, 15091625 103 (2007). Cf. Ward, note 21 above, on the common law as the embodiment of right reason, dispensed by and limiting the monarch.

pity (he has none) and thus evokes the first sense of "equity." Her reference to mercy as proceeding from heaven and "enthroned in hearts of kings" does hint at the royal and ecclesiastical origins of the English court of equity44-the power to pardon, which we observed in the trial of Jesus Christ, is a traditional royal (executive) prerogative45-but in the world of the play no one is empowered to trump law with equity. That is why, when her appeal to Shylock for mercy fails, she is forced to argue in legalistic terms. Within those terms her argument is stronger than may at first appear. To rebut it by pointing out in good lawyer's fashion that the bond must have authorized whatever action was necessary to execute it, and therefore the shedding of Antonio's blood, Shylock would have had to appeal to the spirit rather than the letter of the bond; for the bond says nothing about shedding blood. But once he had done that he would have found it hard to maintain his legal position. The spirit of the bond is to make sure that Shylock is repaid in full, and Ba.s.sanio has offered to repay him double, or even more if Shylock insists-but Shylock suffers from the revenger's standard vice of immoderateness.

In the second edition of this book I said that "Portia personifies the spirit of equity." As a comment on Portia's character, that is not correct. Her "quality of mercy" speech is an inspiring set piece, but it is not a window into her heart. She prefaces it by saying that since Antonio confesses the bond, "Then must the Jew be merciful" (IV.1.180)-meaning that unless Shylock shows mercy Antonio must die. She repeats this at the end of her speech: "I have spoke thus much / To mitigate the justice of thy plea,/Which if thou follow, this strict court of Venice/Must needs give sentence 'gainst the merchant there" (IV.I.200203). In other words, Shylock, you've won. But of course he's about to lose, as she knows. By telling him that he's won, she is saving herself a packet of money. She's a trickster, as befits an impostor; it was through her trick that Ba.s.sanio picked the right casket, and she will pull another trick, the ring trick, at Stephen A. Cohen, "'The Quality of Mercy': Law, Equity and Ideology in The Merchant of Venice," Mosaic, Dec. 1994, p. 35. See Andrew J. Majeske, Equity in English Renaissance Literature: Thomas More and Edmund Spenser (2006).

Janelle R. Greenberg and Martin S. Greenberg, "Crime and Justice in Tudor-Stuart England and the Modern United States: The More Things Change, the More They Stay the Same," 6 Law and Human Behavior 261, 270 (1982).

*the end of the play. "She displays an understandable unscrupulousness" throughout.46 Unlike Antonio and the rest of the characters in the play, Shylock and Portia understand that the law is something to be used-by Shylock to revenge himself against Antonio and by Portia to foil Shylock and save money-rather than supinely to yield to. In Shylock and Portia we see Shakespeare "predicting the demise of the Belmont-Venice dichotomy"- the dichotomy between Belmont, the city of love, symbolized by Portia, and Venice, the city of self-love, symbolized by the Jewish moneylenders. "Portia's appearance in Venice in male dress tells us that she or her descendants will not willingly stay put on the pedestal in Belmont," while Shylock, by virtue of his forced conversion to Christianity, will "become a respectable businessman."47 Another notable depiction of contract in Elizabethan drama is the pact with the devil in Marlowe's Doctor Faustus. Faustus conjures Mephostophilis and after brief negotiations signs in blood a deed conveying his soul to Mephostophilis's master in exchange for various undertakings. The doc.u.ment states in full (1.5.95114):48 On these conditions following: First, that Faustus may be a spirit in form and substance.

Secondly, that Mephostophilis shall be his servant, and be by him commanded.

Samuel Ajzenstat, "Contract in The Merchant of Venice," 21 Philosophy and Literature 262, 273 (1997).

Id. at 273274. Shylock will become a respectable businessman because the antisemitism in The Merchant of Venice is religious rather than ethnic, as shown by Lorenzo's marriage to Shylock's daughter, which the Christians accept without demur. This is unrealistic, given Christian suspicion that Jewish converts ("conversos") were opportunists who would continue to perform Jewish rites in secret. Janet Adelman, Blood Relations: Christian and Jew in The Merchant of Venice 412 (2008). That suspicion is related to the persistent uncertainty about whether to regard Jews as simply a religious group or as a race (in modern terms, an ethnic group, like the Irish).

48. All my quotations from Marlowe are from Christopher Marlowe, The Complete Plays (J. B. Steane ed. 1969).

Thirdly, that Mephostophilis shall do for him, and bring him whatsoever.

Fourthly, that he shall be in his chamber or house invisible.

Lastly, that he shall appear to the said John Faustus at all times, in what shape and form soever he please.

I, John Faustus of Wittenberg Doctor, by these presents, do give both body and soul to Lucifer, Prince of the East, and his minister Mephostophilis, and furthermore grant unto them that four and twenty years being expired, and these articles above written being in violate, full power to fetch or carry the said John Faustus, body and soul, flesh, blood or goods, into their habitation wheresoever.

By me, John Faustus.

At the end of the play the 24 years are up and a posse of devils appears and carries Faustus off to h.e.l.l.

As the maker of an immoral contract Faustus is a parallel figure to Shylock. Shylock's bond has a diabolical quality, and both characters are d.a.m.ned, unless Shylock is saved by his conversion. Shylock, with his Old Testament vengefulness, is the less modern man, yet there are hints of the proto-capitalist in him (see chapter 6), just as there are in Edmund. Faustus, despite his fascination with magic, is a modern man. He acknowledges no limitations on man's quest for understanding and control (magic being one means) of his physical and social environment. In contrast to the orthodox Christian view that the soul belongs to G.o.d, Faustus thinks he owns his soul and therefore can sell it to anyone he wants. And being a man of honor and in his own way a hero, he makes no effort to break his contract when the time comes for him to deliver what he has sold. He subst.i.tutes the sanct.i.ty of contract for the sanct.i.ty of G.o.d, and thus cannot imagine a G.o.d of mercy but only one of justice.49 Yet Faustus's acceptance of the validity of his contract may have been a legal error. Mephostophilis failed to perform his part of the bargain, and the contract conditions Faustus's grant of body and soul to Lucifer on "these articles above written being inviolate." Shortly after signing the 49. Cleanth Brooks, "The Unity of Marlowe's Doctor Faustus," in Christopher Marlowe 97, 105106 (Harold Bloom ed. 1986).

*contract, Faustus had asked Mephostophilis for a wife. Mephostophilis had temporized, then produced "a DEVIL dressed like a woman, with fireworks," whom Faustus spurns: "A plague on her for a hot wh.o.r.e." Mephostophilis comments, "Tut, Faustus, marriage is but a ceremonial toy./If thou lovest me, think no more of it" (1.5.149156).

The matter is dropped, and Faustus's failure to pursue it could be thought a condonation of the breach. Daniel Yeager may be correct, moreover, that the contract is best described as a relational contract.50 Such a contract establishes a long-term relationship; and since not every contingency that might arise over a long period of time can be foreseen, it is understood that the parties will act in good faith to resolve problems as they arise rather than stand on the letter of the contract. That seems to be the spirit in which the issue of a wife for Faustus is resolved. Mephostophilis produces Helen of Troy for Faustus's bed, and Faustus might well consider her an adequate subst.i.tute for a wife. And this suggests still another reason to excuse Mephostopholis's breach: the doctrine of substantial performance, which excuses minor breaches.51 Finally, since marriage is a sacrament under any version of Christianity plausibly attributable to the world of the play, a devil could not procure a wife for Faustus, and this impossibility may be part of an implicit background understanding that qualifies the literal terms of the contract.

Faustus would have been on stronger ground in seeking to repudiate the contract because of its illegality. The law refuses to enforce contracts that are against public policy, and a contract with the devil fits the bill. Yet even a court of cold-blooded agnostics might be reluctant to let Faustus off on this ground. The lawyer's distinction between an executory and a half-executed contract shows why. An executory contract is one in which neither party has begun to perform his contractual undertaking; it is a bare exchange of promises. If the contract is illegal, the law will not enforce it. But what if after one party has performed his side of the bargain, or at least a good part of it, the other party asks to be excused from having to perform, because the contract is illegal or on some other ground? Maybe A has, as agreed, built a house for B. Now it is time for B to pay, 50. Yeager, "Marlowe's Faustus: Contract as Metaphor?" 2 University of Chicago Law School Roundtable 599, 611612 (1995).

51. See Jacob & Youngs, Inc. v. Kent, 129 N.E. 889 (N.Y. 1921) (Cardozo, J.).

and he refuses. The court will be less sympathetic to a defense of illegality in such a case, because B would be unjustly enriched if he were excused from having to pay.52 That is Faustus's case. His part of the bargain was not to be performed until the devil had finished performing his part. For Faustus to be allowed to repudiate the contract after having enjoyed its benefits for 24 years-benefits perhaps less ample than he had expected but considerable nevertheless53-would be to let him off scot-free after all those years of deliciously immoral behavior. In these circ.u.mstances a sincere repentance, though feared by Mephostophilis, who keeps trying to bully Faustus into keeping his bargain, is hard to visualize.

When a court does hold a half-performed illegal contract unenforceable, it may mitigate the hardship to the party who has performed by requiring the other party to restore the value of that performance.54 But how could Faustus have restored to Mephostophilis the value of the goods and services that Mephostophilis had provided over the 24 years that the contract was in force? Faustus doesn't have the material resources to do so, and subst.i.tuting penance would be of no benefit to Mephostophilis- quite the opposite. Faustus's inability to make rest.i.tution might make a court less likely to let him escape his contractual obligations.

But a critical qualification has been overlooked. The devices that courts use to minimize the injustices that unbending enforcement of the defense of illegality would produce are available only if the party seeking to enforce the contract (Mephostophilis in this case) either was excusably ignorant of its illegality or was less blameworthy for agreeing to the contract than the other party was.55 The devil could not argue either that he didn't know that contracts with him were illegal or that the primary wrongdoer was not himself but Faustus.

See Kelly v. Kosuga, 358 U.S. 516 (1959); E. Allan Farnsworth, Farnsworth on Contracts, vol. 2, 5.1 (3d ed. 2004).

Just being guaranteed 24 more years of life meant a lot in plague-plagued London when Doctor Faustus was written. Christopher Ricks, "Doctor Faustus and h.e.l.l on Earth," in Ricks, Essays in Appreciation 1, 7 (1996). But Faustus expected more and, just like a modern intellectual, was disappointed when the world failed to live up to the expectations of his book- inflamed imagination. Ian Watt, Myths of Modern Individualism: Faust, Don Quixote, Robinson Crusoe 40 (1996).

See American Law Inst.i.tute, Restatement of Contracts (Second) 197 and comment b, 198 (1979); Farnsworth, note 52 above, 5.9.

55. Id., 5.1, 5.9.

*So Faustus might have wiggled out of his contract after all. But not too much should be made of this. It is time we reminded ourselves that a pact with the devil is not subject to the law of contracts. The literary function of the pact is not to raise questions about contract law but to symbolize the irrevocability of Faustus's choice. With eyes open he sets foot on a path that leads to his d.a.m.nation. In Doctor Faustus contract is a metaphor for commitment.

Vienna, where Measure for Measure is set, is depicted as having very strict laws, including the death penalty for fornication. But the laws are not enforced. Although unhappy with this situation-prost.i.tution, adultery, and fornication are flourishing-the Duke of Vienna is unwilling to crack down in person. As he explains (I.3.1936), We have strict statutes and most biting laws, The needful bits and curbs to headstrong steeds, Which for this fourteen years we have let slip; . . . So our decrees, Dead to infliction, to themselves are dead; And liberty plucks justice by the nose . . .

Sith 'twas my fault to give the people scope, 'Twould be my tyranny to strike and gall them.

The Duke arranges to take a leave of absence, leaving his strict and ascetic deputy, Angelo, in charge. Immediately Angelo sentences Claudio, a young man who has impregnated his fiancee, to death for fornication. Claudio's sister, Isabella, a novice in a nunnery, goes to Angelo and pleads for her brother's life. He is smitten with her and offers to spare her brother if she will have s.e.x with him. She indignantly refuses. When she reports all this to Claudio, to her astonishment he urges her to accept Angelo's offer. She is dismayed by her brother's thinking his life more important than her immortal soul, whose salvation might be jeopardized by s.e.x with Angelo. Why it would be is not made clear. Would not fornication, the least deadly of deadly sins (as Claudio points out to her), be excused if necessary to save an innocent life? But since fornication is a crime, Isabella would not be sacrificing her chast.i.ty to save an innocent man-in fact she would be committing two crimes herself, bribery and fornication. The Duke, who is lurking about disguised as a friar, comes up with a solution: Isabella is to tell Angelo that she accepts his offer but to insist that their s.e.xual encounter be brief and take place in the dark. The friar will subst.i.tute in her place Mariana, Angelo's former fiancee, whom Angelo had jilted because her dowry had been lost in a shipwreck.

All is done as arranged. But, compounding his perfidy, Angelo decides to execute Claudio anyway lest he seek revenge when he finds out what has befallen his sister. (This is another example of the ubiquity of the revenge motif in Elizabethan drama.) Angelo orders Claudio's head sent to him, but the Duke-friar arranges the subst.i.tution of the head of a prisoner who has just died of natural causes. The Duke now sends word that he is returning to Vienna and will want an accounting of Angelo's stewardship. When the Duke and Angelo meet outside the city's gates, Isabella steps forward and accuses Angelo, who at first denies everything but is quickly exposed and confesses. Showing mercy, like his counterpart in Venice, the Duke pardons Angelo after ordering him to marry Mariana. Claudio is freed and the Duke orders him to marry his fiancee. It seems that the Duke is going to marry Isabella, though this is not completely certain because she remains silent when he tells her he plans to marry her.56 Parallels to The Merchant of Venice abound. Like Shylock, Angelo is at once austere, a stickler for law, and beneath his cold exterior prey to a lawless, violent pa.s.sion that drives him to attempt on Isabella the very crime for which he sentenced Claudio to die. He misuses his legal authority in much the same way that Shylock misuses the law of contracts. Parallel to the affinity between Shylock and Antonio is the affinity between Angelo and Isabella, another pair of legal sticklers-Isabella is convinced by Angelo of the justice of his condemnation of her brother.57 It is poetic justice for Angelo that Isabella should be the first woman to awaken his 56. See Karl F. Zender, "Isabella's Choice," 73 Philological Quarterly 77, 8891 (1994).

57. Ernest Schanzer, The Problem Plays of Shakespeare: A Study of Julius Caesar, Measure for Measure, Antony and Cleopatra, ch. 2 (1963). Isabel seems to imagine G.o.d as being like Angelo! Id. at 100.

*sensuality, as they are alike in being moral fanatics.58 Probably we are meant to think capital punishment for fornication absurd and (though this is less clear) to laugh at Isabella's indignant refusal to sacrifice her virginity for her brother's life.59 After all, the Duke incites Mariana to commit approximately (the significance of this qualification will become clear shortly) the same crime for which Claudio is to be executed.

Karl Zender points out that Isabella displays an adolescent sensitivity to public humiliation and treats Claudio's imminent death not as a reality but "as a limit term for the desire for withdrawal from the world."60 Young people have difficulty grasping the full significance of death (or maybe it's just that as we age we become more attached to life, almost as a matter of habit). Thus Isabella has trouble distinguishing between her impending withdrawal from the world by becoming a nun and Claudio's by dying. So the play is another Bildungsroman. Poetic justice for Isabella is being made an accomplice in the Duke's scheme of arranging a s.e.xual encounter between Angelo and Mariana. But we must not confuse Measure for Measure with Emma. There is grandeur in Isabella's appeals to Angelo, which parallel Portia's appeal to Shylock and support Brian Vickers's remark that "it is obvious to anyone who has studied the place of women in Elizabethan society that [Shakespeare's] heroines enjoy a degree of independence and a mastery of language and eloquence that are totally untypical of his age."61 The most difficult legal question in the play is the status of the two Darryl J. Gless, Measure for Measure, the Law, and the Convent, ch. 2 and p. 97 (1979), places Shakespeare's portrayal of Isabella's "spiritual overreaching" in the context of Elizabethan antimonasticism. Schanzer, note 57 above, at 105106, compares Isabella's acceptance of Angelo's refusal to season law with mercy to the refusal by the "churlish priest" denounced by Laertes in Hamlet (V.1.240242) to authorize full funeral obsequies for Ophelia.

Shakespeare's first child was conceived before he married the mother. The Duke's pardoning Angelo on condition that he marry Mariana reflects what apparently in Elizabethan England, as until recently in this country, was the standard "punishment" for fornication. See Gless, note 58 above, at 108. Although the Puritans made adultery a capital offense, as it is also under Islamic law, I am not aware of a legal system that has made fornication a capital offense.

Zender, note 56 above, at 83. "Only the young can so detachedly if tormentedly survey the prospect of adult existence as to believe that they have the option 'To be or not to be'; the adult, with 'promises to keep,' more often has to shrug and trudge on." Everett, note 15 above, at 2223.

61. Vickers, Appropriating Shakespeare: Contemporary Critical Quarrels 414 (1993).

marriage contracts, Claudio's with Julietta and Angelo's with Mariana. Claudio calls Julietta his "wife" in Act I, and under the law of Elizabethan England, until changed in 1572, he would have been correct. A contract that declared the parties married was valid without a marriage ceremony.62 But a mere promise to marry in the future, the promise Angelo had made to Mariana but had later broken, did not create a valid marriage until the marriage was consummated63-which, however, it was, as a result of the bed trick arranged by the Duke. Yet no one in the play doubts that Claudio is guilty of fornication, including Claudio, which suggests that the (imaginary) law of Vienna is similar to that of England after the reforms of 1572 designed to end informal marriage. Claudio's marriage had "matter without form," Angelo's (before the bed trick) "form without matter"; the reforms were intended to require both form and matter for a valid marriage.64 Was it immoral for the Duke, especially as he was pretending to be a friar, to arrange-and with Isabella's complicity-a s.e.xual encounter between Angelo and Mariana? Could that encounter create a marriage, since it took place after Angelo had broken his promise of marriage?

Margaret Scott points out that the Council of Trent had outlawed informal marriage in 1563, and she notes that the play represents Vienna as an emphatically Roman Catholic state, in this respect wholly unlike England.65 So what exactly is going on? Scott's sensible suggestion is that the legal world of the play is not to be identified with any real-life legal regime, whether English or Continental and whether before or after 1563 or 1572. Since fornication is a capital crime in the world of the play but nowhere else, there should be no difficulty in accepting that all informal marriages are illegal in the play, regardless of the legal position outside.66 Frank Kermode, "Justice and Mercy in Shakespeare," 33 Houston Law Review 1155, 11651166 (1996).

63. Id.

A. G. Harmon, Eternal Bonds, True Contracts: Law and Nature in Shakespeare's Problem Plays 3132 (2004). Harmon emphasizes that sixteenth-century marriage law was in flux. See also B. J. Sokol and Mary Sokol, Shakespeare, Law, and Marriage (2003).

Scott, "'Our City's Inst.i.tutions': Some Further Reflections on the Marriage Contracts in Measure for Measure," 49 English Literary History 790, 704795 (1982).

See also A. B. Nuttall, The Stoic in Love: Selected Essays on Literature and Ideas 4244 (1989).

*The required suspension of disbelief is less than in imagining that Shylock's bond would have been enforceable if only it had been drafted more carefully-for example, to provide for death by strangulation so that no blood would have to be shed. (It's not the pound of flesh as such that Shylock wanted, but Antonio's death.) Yet that is the contract law of The Merchant of Venice. Shakespeare is not concerned with depicting law realistically in either its substantive or its procedural aspects. Angelo points out that a jury verdict is not invalid just because one of the jurors is a thief, but there are no juries in the legal world depicted in Measure for Measure, where Angelo is attorney general, judge, jury, and court of appeals all in one.

Scott has not solved the problem of the Duke's treating the two marriage contracts inconsistently. But that problem is superficial. The Duke does not deny that Angelo and Mariana will be committing fornication; the idea rather is that turnabout is fair play. The Duke must know that he is going to pardon both couples and that they will then marry formally. And he is unworried that fornication is not only a capital crime but a deadly sin. He is not really a friar and perhaps not even a good Catholic-a good Catholic would not commend himself to an Elizabethan audience.

What might seem a more serious inconsistency is Isabella's failing to raise any objection to the Duke's scheme. She does not say, "Hold on- Mariana's immortal soul will be jeopardized, just as mine would have been." Instead her reaction is, what a nifty idea: "The image of it gives me content already" (III.1.261). That the source of the suggestion is a friar, as she thinks the Duke is, may alleviate her theological concerns. But we may also be meant to treat her reaction as further evidence that she is (or was) prudish rather than principled and has begun to share the Duke's pragmatic outlook. Or maybe she thinks that Mariana's marriage contract will mitigate Mariana's deed in Heaven's eye. Isabella could plead no such "defense" if she yielded her body to Angelo.

The Duke's role in the play is similar to Portia's in The Merchant of Venice-arranging things to come out right through a series of none-toocreditable stratagems. (Note, too, how both of them operate in disguise.) The Duke's apparent withdrawal from Vienna, leaving Angelo to enforce the laws strictly, to take the blame, and to get humiliated on the Duke's return, borrows a tactic recommended by Machiavelli in The Prince. When disguised as a friar the Duke puts a terrible scare into Claudio by repeatedly telling him that he is going to be executed; frightens Isabella by telling her that Claudio has been executed and by ordering her arrested for slandering Angelo; arranges an illicit s.e.xual encounter between Angelo and Mariana; and is bent on luring a nun aspirant into the marriage bed. But it all works. Angelo's reign of terror succeeds, we are led to believe, in curtailing prost.i.tution without impairing the Duke's popularity. Angelo is taught a lesson. Mariana obtains justice at long last. Moderate officials, like Escalus (Angelo's deputy) and the keeper of the jail, are vindicated. And Isabella-who "starts out thinking she has a vocation for a celibate life, [but] . . . ends up knowing she hasn't. Her very excess of feeling about that vocation means that she is not qualified for it"67-becomes fit for a glorious marriage.

Angelo on the one hand and the bawds who provide comic relief on the other represent the extremes-angel and animal-between which man, in the medieval and Elizabethan worldview, is intermediate; and the "angel" turns out to be an animal after all. Other extremes depicted in the play that are of interest from a jurisprudential standpoint are the law that is never enforced and the law that is enforced too strictly. We learn that attempting to outlaw fornication would be as quixotic in the culture of the play as it would be in our own culture and that the Duke, though not a fully exemplary character (so here is another lesson in the difference between public and private morality), achieves the prudent mean-law enforced in moderation, which apparently means that the "punishment" for fornication is marriage and that prost.i.tution, even if not completely suppressed, is no longer flaunted.

Angelo's insistence on enforcing law to the hilt reflects a conception of law that he shares not only with Shylock and Isabella but also with many lawyers and judges of the present day-that law exists apart from man. It is a conception especially congenial to people like Shylock, Angelo, and Isabella who lack warmth in human relationships. Angelo cannot understand behaving leniently toward Claudio just because from a human 67. W. H. Auden, "Measure for Measure," in Auden, Lectures on Shakespeare 185, 192 (Arthur Kirsch ed. 2000).

*standpoint there are extenuating circ.u.mstances. That would imply tampering with the law, to him a set of rigid rules to be inflexibly applied. He exemplifies the authoritarian personality found in some judges.68 When Isabella pleads for her brother's life, Angelo replies, "It is the law, not I, condemn your brother./Were he my kinsman, brother, or my son,/It should be thus with him" (II.2.8587). The image of a judge condemning his son expresses the sharpest possible cleavage between law and human feeling. Angelo is glancing back to Brutus's ancestor and ahead to Robert Louis Stevenson's Weir of Hermiston: An Unfinished Romance (1896), the climax of which was to be a judge's condemning his own son to death. Angelo's angelism is the unnatural divorce of body from spirit. Isabella shares Angelo's conception of law as a thing apart from man. The ground on which she pleads with the Duke for Angelo's life before she discovers that Claudio is alive is that since her brother was, after all, guilty, his execution was not wrongful despite the judge's corruption.

The Marxist literary theorist Terry Eagleton takes the side of Shylock and Angelo against Portia and the Duke of Vienna, untroubled that Shylock wanted to kill Antonio personally, with a knife, and that Angelo tried to use his judicial power to obtain s.e.x.69 "It is Shylock who has respect for the spirit of law and Portia who does not. Shylock's bond does not actually state in writing that he is allowed to take some of Antonio's blood along with a pound of his flesh, but this is a reasonable inference from the text, as any real court would recognize . . . Portia's ingenious quibbling would be ruled out of order in a modern court, and Shylock (given that his bond were legal in the first place) would win his case."70 As any real court would recognize? No real court would have enforced Shylock's 68. Posner, note 4 above, at 98100, 110.

Kermode, note 62 above, notes the general fear that laypersons have of falling into the clutches of a corrupt judge. The t.i.tle of the play comes from Matthew 7:12: "Judge not, that ye be not judged. For with what judgment ye judge, ye shall be judged; and with what measure ye mete, it shall be measured to you again." Angelo should have heeded that warning.

Eagleton, William Shakespeare 3637 (1986). See also Roberto Mangabeira Unger, Knowledge and Politics, ch. 2 (1975); Unger, The Critical Legal Studies Movement 64 (1986) (discussing The Merchant of Venice); John Denvir, "William Shakespeare and the Jurisprudence of Comedy," 39 Stanford Law Review 825, 827832 (1987). But it is unclear what Eagle-ton means by "given that his bond were legal." His discussion a.s.sumes the bond is legal, but the subjunctive "were" introduces a note of dubiety.

bond, either in the sixteenth century or at any time since. The enforcement of such a bargain is not, as Eagleton believes, entailed by commitment to the rule of law. A rule against penalty clauses in contracts is-a rule.

Equity, moreover, has been a part of the Western concept of law since Aristotle, a point that Eagleton overlooks when he says that "for law to be law its decrees must be general and impartial, quite independent of and indifferent to any concrete situation" (p. 36). Law does not consist just of unbendable rules that must be enforced to the hilt regardless of circ.u.mstances or consequences; standards, including meliorative doctrines, that allow the judge to take account of the "concrete situation" presented by a case are a part of law too. The Elizabethans believed that legal justice should be seasoned with mercy,71 as do we, though a modern lawyer would put it somewhat differently-he would say that strict interpretation of rules should be bent where necessary to avoid absurd or patently unjust results.

In contending that failing to punish Claudio to the maximum extent authorized by law fatally undermined the law's generality (pp. 5557), and that justice can never be tempered by mercy because "how is mercy to break the vicious circle of prosecutions when it must somehow spring from inside that circle, from a humble solidarity with vice?" (p. 57), Eagleton a.s.sumes that fidelity to law entails always imposing the maximum punishment. On the contrary, the existence of a maximum implies that lawful punishment is a range, not a point. Anglo-American law has always given law enforcement officials discretion not to prosecute every offense, and within each category of offenses generally allows the judge to vary the punishment in accordance with any aggravating or mitigating circ.u.mstances that are present.

There are utilitarian reasons, independent of any "solidarity with vice" felt by judges, for the mixture of rule and discretion in criminal justice. Lacking information about the particular circ.u.mstances in which its laws might be violated, the legislature usually fixes only the outer limits of punishment and leaves to the prosecuting, the judicial, and sometimes the correctional authorities the task of fitting the punishment to the conduct 71. Schanzer, note 57 above, at 114129.

*Table 1 Legal Antinomies Government of laws Government of men Formalism Realism Law Politics Law Equity Law Mercy Law Justice Rule Discretion Rule Standard Rule Principle Legal rule Equity maxim Per se rule Rule of reason Logic Policy Rigid Flexible Right answers Good answers Positive law Natural law Decision by precedent Arbitration Judge Qadi, Jury Strict liability Negligence Objective theory of contracts Subjective theory Objectivity Subjectivity Impersonality Personalism Principled Result-oriented Rights Needs Right Might Statute law Common law Statute law Const.i.tutional law Interpretivism Noninterpretivism Strict construction Loose construction Letter Spirit Judge finds law Judge makes law and circ.u.mstances of each criminal. That is a rational division of labor, and it does not contradict the idea of law.

Eagleton's view of legality rests on a misunderstanding that The Merchant of Venice and Measure for Measure can help dispel. It is false that Shylock, Angelo, Isabella, and Eagleton represent law and Portia and the Duke of Vienna not-law. The first four represent one end of a spectrum while the last two are closer to the other end. The left-hand column of Table 1 lists a number of different terms-jurisprudential, philosophical, psychological, inst.i.tutional-in which to describe law as an abstraction, a thing apart from the people charged with enforcing laws and adjudicating disputes. The terms suggest ways of minimizing discretion and the hu

man factor and maximizing "ruledness" or "legalism." The emphasis is on professionalism, logic, strict rules, sharp distinctions, positive law, and "hard" cases (meaning, not as it has come to mean, cases that are difficult, but cases that reach harsh results, showing that head and heart are firmly separated), and on abstracting from the specific circ.u.mstances of a case, from the tug of emotion, and from the personalities of the disputants.

It is true that the more discretion judges have, the more difficult it is to monitor their behavior and detect corrupt or incompetent performance. If Angelo could not have rescinded Claudio's death sentence without being thought to have violated his duty as a judge, he could not have gotten to first base in his effort to extort s.e.x from Isabella. But the danger of judicial corruption has to be traded off against the considerable-indeed the prohibitive-costs of requiring rigid adherence to harsh rules interpreted literally. No civilized society has ever embraced the legalist position in undiluted form. Every such society softens the rigors of strict legalism by some or all of the devices listed in the right-hand column of Table 1. It is because the strict enforcement of rules is intolerable ("working to rule" is a device by which workers disrupt their employer's operations) that law is the art of governance by rules, rather than an automated machinery of enforcement. Both the extreme of hyperlegalism and the opposite extreme of a purely discretionary system of justice are found only in primitive societies. Mature societies mix strict law with discretion. Every entry in the table can be found in modern American law. The mixture is not inconsistent with the idea of law; it is the idea of law-as literature can help us see.

Has Law Gender?

Some feminists believe that the legalistic approach to law reflects a distinctively male style of thinking.72 It is indeed remarkable how often in literature the view of law expressed by the terms on the right-hand side of Table 1 is personified by a woman and the opposing view by a man. Re 72. See, for example, Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development 105 (1982) (discussing The Merchant of Venice); Robin West, "Jurisprudence and Gender," 55 University of Chicago Law Review 1 (1988). On feminist approaches to law *call the pleas of mercy by Portia and Isabella; and recall Hecuba, Beatrice Cenci, and Antigone all confronting a male embodiment of legal positivism. Compare Orestes, who is avenging a civic as well as a personal wrong (regicide as well as parricide), with Clytemnestra, who is avenging a purely personal wrong. The Furies are female avengers-and of familial rather than civic wrongs.73 In chapter 5 we shall see Captain Vere instructing the court-martial in Billy Budd to disregard "the feminine in man" in favor of strict, hard justice. If Portia is literature's exemplary female law-yer-though we must not overlook the negative features in her portrayal74-male lawyers in literature are all too often cruel, bloodless enemies of life, such as Jaggers, Tulkinghorn, and Ivan Ilich.

Susan Glaspell's story "A Jury of Her Peers" (1917) ill.u.s.trates the gender contrast.75 The story, loosely based on a real case,76 is set in the rural Midwest, probably Iowa. A farmer is found dead in his bedroom, strangled by a rope. Because there is no indication of forced entry or of suicide, the widow is suspected. She is arrested and carted off to jail. Sheriff Peters returns to the scene of the crime to investigate, accompanied by the county attorney and by Hale, the man who had discovered the body. Peters and Hale bring their wives, who remain downstairs while the men search the bedroom for clues. Poking about in the kitchen-the quintes and literature generally, see Melanie Williams, Empty Justice: One Hundred Years of Law, Literature and Philosophy: Existential, Feminist and Normative Perspectives in Literary Jurisprudence (2002); Maria Aristodemou, Law and Literature: Journeys from Her to Eternity (2000); Robin West, Caring for Justice (1997)-the last strongly supportive of Gilligan's approach.

See Paul Gewirtz, "Aeschylus' Law," 101 Harvard Law Review 1043 (1988). Bernard M. W. Knox, The Heroic Temper: Studies in Sophoclean Tragedy 7778 (1964), compares Antigone to the Furies, emphasizing that the natural law that she expounds is, as we have seen, one of familial obligation.