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Wednesday, March 03, 2010

All that Glisters is Not Gold (Yes, I spelled Glisters right.)

If you haven't read The Merchant of Venice lately, let me be the first to urge that it is your duty as a lawyer to do so.  First, all the cool lawyers (oxymoron?) are reading it.  In fact, Shakespeare has been cited in over 800 judicial opinions.  Second, you will be amazed that your legal training gives you a different perspective on the play than you had when you read it in high school or college. 

I make this recommendation now because I had the great fortune to be asked to speak on a panel at an interdisciplinary conference at the University of Florida called Convergences and Conversions: The Merchant of Venice Into the Twenty-First Century.  I was the only law professor among professors of English literature, Spanish literature, Hebrew literature, History, Philosophy, Women's Studies, Film Studies, and Judaic Studies, which was intimidating.  However, I found it absolutely exhilarating to participate in a discussion in an interpretive community that is so attentive to allusions and nuance and so steeped in critical theory.  Even more exhilarating was the experience of reading The Merchant of Venice for the first time since I became a full-fledged lawyer, Jew, and mother.

One of the most interesting questions for me as a lawyer and Jew is why the Jewish merchant Shylock has faith that the legal system will give him the benefit of his bargain, his pound of flesh.  Why does Shylock insist that "[t]he Duke shall grant me justice"? (III.iii.8.)  Even before the trial scene, the play is full of examples demonstrating how Venetian law treated Christians and Jews unequally and helped to define the Jew as "other."  Portia's deceased Christian father is able to call on the law's assistance to help him impose control over who his daughter shall marry, but such is not the case for Shylock.  When the Christian Lorenzo steals Shylock's daughter and his ducats, Shylock lacks legal recourse to retrieve them.  To add insult to injury, the law ends up forcing him to financially aid the marriage.  Jews like Shylock would have played an essential role in the mercantile culture of Venice, and yet even commercial law was skewed against them.  With regard to the commercial law, Jews were apparently forbidden to own real property, which is what would have driven Shylock into the business for which he is reviled by the Christians dependent on it.  Family law, of course, is another example, in which there is pronounced inequality in the play.  Venice is even, as Shylock points out, a society in which resides "many a purchas'd slave." (IV.i.90)  Why, then, should Shylock be surprised when the Duke relies on a counterfeit legal expert (the disguised Portia) and a troubling precedent to resolve the claim? 

Despite Portia's eloquence about the "quality of mercy" (IV.i.184), the winning argument in the play is that Shylock's contract is trumped by a criminal law that protects only Christians.  Although you might remember that Shylock lost because he failed to specify that he could take blood along with his pound of flesh, the real problem was that execution of his contract would have required the taking of "Christian blood" (IV.i.310).  Even if the contract had mentioned blood, it appears that it would have been void because of Shylock's status as a Jew, and hence an alien.  As Portia explains, "It is enacted in the laws of Venice,/If it be proved against an alien,/That by direct or indirect attempts/He seeks the life of any citizen,/The party 'gainst the which he doth contrive/Shall seize one half his good; the other half/Comes to the privy coffer of the state,/And the offender's life lies in the mercy/Of the Duke only . . . "  (IV. i. 348-356).  Shylock, by virtue of his religion, is defined as alien, outside the equal protection of the laws.  His mistaken belief that contract law, at least, will apply in a neutral fashion is his undoing, leading to the loss of his property and religious conversion enforced by the power of the state.

For me, the play raises an interesting jurisprudential question:  why do individuals accustomed to unequal treatment in law still continue to expect Justice?  Is it because the law masks its role in constructing the individuals against whom it discriminates as "others"?  In the play the Duke speaks as if he is bound by law, and not free to decide in accord with the dictates of mercy, and Shylock apparently subscribes to this notion as well.  Why should he, when all of his past experience should have taught him that Venetian law will be written or interpreted to favor those in power?

I hope you'll reread it.  When you do, I hope you'll also ask yourself how come the mothers of Portia and Jessica are absent from the text.  When you answer that question, email me and let me know.  Enjoy.

Posted by Lyrissa Lidsky on March 3, 2010 at 11:12 PM in Books, Culture, Deliberation and voices, Teaching Law | Permalink

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Interesting. This also suggests that we are drawing the wrong lesson from the play. It is not that mercy does (and sometimes should) overcome mercy at the expense of legal formalism; it is that some legal formalism does (and should) trump other legal formalism.

And you did not even mention the nice little First Amendment violation at the end of the play.

Posted by: Howard Wasserman | Mar 4, 2010 3:20:16 PM

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