By Akhil Mahesh, National University of Advanced Legal Studies, Kochi
“Editor’s Note: William Shakespeare can be regarded as one of the best playwrights in England, and his play “The Merchant of Venice” is believed to have been written between 1596-1598. The play mainly revolves around a young man, Antonio, who borrows money from a Jew, Shylock and as per the terms of their contract, if he fails to pay back the money, Shylock would be entitled to a pound of flesh from Antonio’s body. Unfortunately, Antonio fails to arrange for the money and the case is taken to court. Here, Portia, pleading for Antonio reminds Shylock and the judge, the principle of Natural Justice, which emphasises on the value of mercy, as against Positive Law. This article examines this very scene from the play, and discusses the jurisprudence of the Elizabethan era.”
While The Merchant of Venice is set outside of England, it is significant to note that Shakespeare often displaced the action of his plays in order to tackle contemporary English issues and avoid political backlash. For example, although much of the play takes place in Venice, the Venetian court applies English law “and the trial of the action on the bond is approached in strictly Common Law terms.” Furthermore, the penalties attached to common money bonds in Shakespeare’s England were fully enforceable by law. While penalty clauses were enforceable by the common law of contract, they could still be defeated by the courts of Chancery.
In fact, Shakespeare’s England was marked by an emerging conflict between the courts of common law and equity, between Chief Justice Edward Coke and Lord Chancellor Ellesmere. Several theorists assert that this struggle had a profound influence on Shakespeare’s trial in The Merchant of Venice.
Lyman Windolph wrote that “The Merchant of Venice is one of Shakespeare’s most charming comedies—so charming, indeed, that we are inclined to forget that it is altogether without morals.” Shakespeare’s famous play addresses various legal issues and themes, with perhaps none being so pronounced as the struggle between formal positivism and Natural Law. Ostensibly, The Merchant of Venice dramatizes the dangers of rigid adherence to formalism and the triumph of Natural Law through Portia’s legal defeat of Shylock. On a more profound level, Shakespeare’s portrayal of the Venetian trial scene raises grave concerns about the essential nature and manner of that defeat. While Portia is originally positioned as a sympathetic proponent of Natural Law, she is soon revealed as one of its grossest violators. Thus, the play ultimately functions as a cautionary exposé on the hypocrisy of power, the abuse of fair process, and the grim reality that the law may be exploited to malicious and unnatural ends.
ELIZABETHAN JURISPRUDENCE AS SEEN IN THE TRIAL SCENE
The Act IV trial scene in The Merchant of Venice may be viewed as pitting Natural Law and (to a lesser extent) equity against formal Positive Law. The trial commences in what is described as “a court of justice” before the Venetian Duke. Shylock, contemptuously referred to by the court as “Jew,” seeks “the due and forfeit of [his] bond” from Antonio. While the court implores Shylock to give “a gentle answer,” Shylock entertains nothing of the sort, in spite of the fact that Bassanio offers him twice (and later three times) the amount owed. Shylock, driven by revenge and a bitter hatred towards Antonio, demands the pound of flesh that he is rightly owed under Venetian law. He steadfastly clings to the law—he “crave[s] the law”—and represents a depraved adherence to positivism:
The pound of flesh I demand of him
Is dearly bought, is mine, and I will have it.
If you deny me, fie upon your law!
There is no force in the decrees of Venice.
I stand for judgment.
Throughout the scene Shylock demands nothing but the law, and repeatedly “stands for judgment.” The law is clearly on Shylock’s side, and there is no dispute as to the enforceability of the bond. However, as it is certain that the cutting of the pound of flesh will cause Antonio’s death, the English legal practice of enforcing penalty clauses stands in stark opposition to Natural Law and the preservation of life. Thus, it is not only Shylock, but Positive Law itself that threatens Antonio’s life and freedom.
Portia enters the court disguised as Balthazar, a doctor of laws, on behalf of the famous lawyer Bellario. When Bellario is unable to attend court, Balthazar is sent in his stead to lend “his” legal expertise. Whereas Shylock demands the law, his bond, and judgment, Portia speaks in favour of justice. In her famous speech, beginning “the quality of mercy is not strained,” she extols the virtues of mercy as “an attribute to God himself,” and aligns herself with the Christian Renaissance conception of Natural Law. Andrews contends that, reading the play in light of sixteenth-century English jurisprudence, it becomes evident that Portia’s speech offers far more than “a sermon on the virtues of mercy.” Rather, Shakespeare was holding up a mirror for all to see the dramatic climax of an age-old conflict between the common law courts which dispensed unmitigated ‘justice’ by the strict letter of the law, and the courts of chancery where ‘mercy seasons justice’ to do equity.
Portia, seeking to season justice with mercy, beseeches Shylock to “be merciful. / Take trice thy money; bid me tear the bond.” She becomes an advocate of Natural Law in appealing to Shylock’s morality, and by attempting to spare Antonio’s life from the strict legal application of the satisfaction of his bond. Unable to appeal to Shylock’s humaneness (or lack thereof), Portia succumbs to his exacting demands—she states:
There is no power in Venice
Can alter a decree established […].
A pound of that same merchant’s flesh is thine.
The court awards it, and the law doth give it.
Despite this concession, Portia cunningly proves that it is indeed possible to “deny the course of law.” As Shylock prepares to cut the pound of flesh nearest Antonio’s heart, Portia interjects and states “this bond doth give thee here no jot of blood; / The words expressly are ‘a pound of flesh.’” She proceeds to state that if Shylock sheds “one drop of Christian blood” in his cutting of Antonio’s flesh, he will himself breach the express wording of the contract which stipulates a pound of flesh, no more and no less. Accordingly, Shylock will stand in violation of Venetian law under penalty of death and forfeiture of his estate. Shylock, who has demanded “the law” throughout the entire hearing, can only say in bewilderment: “Is that the law?” Realizing he cannot exact his bond without standing in breach of it, Shylock remits and asks for his principal in defeat. Portia thus ousts Shylock’s bond by employing even a more literal reading than Shylock himself propounded. She craftily uses formalism to defeat itself, and her overtly technical interpretation not only reveals the ludicrousness of the English law of contract (as expressed through the fictional Venetian law), but renders a just result in accordance with principles of Natural Law. As stated, the legal practice of enforcing penalty clauses not only threatens Antonio’s life, but affronts human conscience and morality by allowing Shylock to exact revenge (and in such a reprehensible manner). This law is irreconcilable with the Natural Law principle that “good is to be done and pursued, and evil is to be avoided,” and as such, Natural Law properly renders that positive law void in The Merchant of Venice.
Having defeated Shylock’s bond and preserved the order of Natural Law, Portia may rightly be viewed as one of Shakespeare’s greatest heroines. This acclaim should be short-lived, however, as she then proceeds to tear down the very institution she sanctified in her sermon on mercy. In doing so, Portia reveals her true colours as a malevolent hypocrite and abuser of the law. As Shylock prepares to leave court, denied his principal and burdened with Antonio’s forfeiture, Portia exclaims: “Tarry, Jew! / The law hath yet another hold on you,” and she proceeds to state that:
It is enacted in the laws of Venice,
If it be proved against an alien
That by direct or indirect attempts
He seek the life of any citizen,
The party ’gainst the which he doth contrive
Shall seize on half of his goods; the other half
Comes to the privy coffer of the state,
And the offender’s life lies in the mercy
Of the Duke only.
While Portia justly defeats Shylock’s bond which secures its authority in a base, “unnatural” law of contract, she then relies on an equally corrupt Alien Statute to punish him in the face of Natural Law. Under the Alien Statute, non-Christians were not regarded as citizens of Venice. As aliens, they were thus subject to harsher penalties than citizens for the commission of equal crimes. By failing to treat persons as equals, this statue represents a gross violation of Natural Law; and the law not only brings Portia’s character into statute as holding a particular significance, as the a similar law in England, which the audience were well versed with. As such, the presence of this statute reveals the hypocrisy inherent in the legal systems of fictional Venice and Shakespeare’s England, as Natural Law is welcomed by equity on one hand (the trouncing of penalty clauses in bonds), yet blindly shunned by the other (the persecution of minorities). Although one of the maxims of the court of Chancery is that “he who seeks equity must do equity,” the state allows individuals to soil this principle with their unclean hands. In the end, Portia merely applies Venetian (or English) law as Shylock did, and should not be regarded as the lesser for doing so. What ultimately makes Portia more reprehensible, however, is her brazen hypocrisy in abandoning the natural morality and compassion which she so ardently advocated. She is not only a violator of Natural Law, but a traitor to it. Whereas Portia preached mercy to Shylock earlier in the scene, she hypocritically reverses the appeal when the balance of power shifts in Antonio’s favour. As Kornstein states, Portia does not “season justice with mercy.” While Portia could have yielded the instant she defeated Shylock’s bond, she goes on to punish him. Portia thus stands in violation of Natural Law on several accounts: not only through her strict use of the anti-Semitic Alien Statute (which opposes Natural Law in its substantive content), but in her merciless exacting of revenge against the Jew. Having invoked the Alien Statute, Portia uses the law to appropriate Shylock’s estate and subject his life to the mercy of the Duke. She orders Shylock to the ground, like a dog, to beg for the Duke’s clemency. The Duke, who proves to be the only semi-compassionate one of the lot, spares Shylock’s life and the portion of his estate that would otherwise go to Venice. In a way, Shylock’s trial mirrors the conflict of laws present in Shakespeare’s England, and the trial’s questionable resolution casts grave doubt over the administration of justice in such a system. While the court’s drafting of a deed of use may be viewed as the triumph of equity over the perverse application of the common law, any reader who realizes this malicious pretense of justice will have a healthy skepticism. Equity rightly defeats the penalty in Shylock’s bond, but it is improperly carried to unjust ends that offend conscience, morality, and Natural Law. The Christians do not season justice with mercy, but rather poison it with hypocrisy, vengeance, and hatred.
The trial scene in The Merchant of Venice dramatizes the conflict between Positive Law and Natural Law, as the Venetian legal system betrays the Natural Law tenets of respect for human life, equality among humans, and an individual’s right to a fair process. Although the characters escape condemnation from their fictional peers in the face of gross violations of Natural Law, the play requires the audience to critically evaluate the procedural and substantive qualities of the Venetian law (as an expression of English law) in order to reach a moral and rational conclusion in accordance with Natural Law. Ultimately, the play obliges the audience to judge the judge.
Shakespeare’s portrayal of the trial scene in The Merchant of Venice reveals that “Natural Law is just as theatrically interesting as observance of it.” The dramatization of the struggle between positivism and Natural Law also demonstrates that it is an exceptionally complex issue, the play suffering a decidedly unresolved resolution. While Shylock represents a depraved adherence to formalism, his defeat provides the audience with no consolation as Portia abuses Natural Law to her own ends through substantive and procedural means. Ultimately, the spirit of the law proves no more righteous than the letter, and the audience is required to make a critical moral judgment on the nature and administration of justice: that both letter and spirit are corruptible. Although the play may be considered to be altogether without morals, it is imperative that the audience still possesses them.
- Josh Nisker, “The (Comic) Tragedy of Formalism in Shakespeare’s The Merchant of Venice”
- Ian Cooper, “The Martyr of Venice: Legal Precedence in The Merchant of Venice”, available at http://shakespearianblog.blogspot.in/2007/10/martyr-of-venice-legal-precedence-in.html, last visited on 11/03/2013.
- John R. Morss, “‘Desperately Mortal’: Exclusion in Shakespeare’s Legal Plays”, available at http://www.deakin.edu.au/buslaw/law/dlr/docs/vol12-iss1/vol12-1-6.pdf , last visited on 11/03/2013.
- J. Sokol, Mary Sokol, “Shakespeare and the English Equity Jurisdiction: The Merchant of Venice and the Two Texts of King Lear”, available at http://www.academicroom.com/article/shakespeare-and-english-equity-jurisdiction-merchant-venice-and-two-texts-king-lear, last visited on 11/03/2013.
- Stephanie Hopkins Hughes, “Shakespeare and the Law”, available at http://politicworm.com/oxford-shakespeare/the-big-six-candidates/oxford-and-the-english-literary-renaissance/shakespeare-and-sir-thomas-smith/smith-and-civil-law/, last visited on 11/03/2013.
Edited by Sinjini Majumdar