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A provocative exploration of justice in our time through fresh readings of Shakespeare's greatest plays
Celebrated legal scholar Kenji Yoshino's first book, Covering, was acclaimed–from the New York Times Book Review to O, The Oprah Magazine to the American Lawyer–for its elegant prose, its good humor, and its brilliant insights into civil rights and discrimination law. Now, in A Thousand Times More Fair, Yoshino turns his attention to the broad question of what makes a fair ...
A provocative exploration of justice in our time through fresh readings of Shakespeare's greatest plays
Celebrated legal scholar Kenji Yoshino's first book, Covering, was acclaimed–from the New York Times Book Review to O, The Oprah Magazine to the American Lawyer–for its elegant prose, its good humor, and its brilliant insights into civil rights and discrimination law. Now, in A Thousand Times More Fair, Yoshino turns his attention to the broad question of what makes a fair and just society, and he delves deep into a surprising source to answer it: Shakespeare's greatest plays.
An enormously creative and provocative book, A Thousand Times More Fair addresses fundamental questions we ask about our world today: Why is the rule of law better than revenge? How much mercy should we show a wrongdoer? What does it mean to "prove" guilt or innocence? As Yoshino argues, a searching examination of Shakespeare's plays–and the many advocates, judges, criminals, and vigilantes who populate them–can elucidate some of the most troubling issues in contemporary life.
With a great ear for Shakespeare and an eye trained steadily on current affairs, Yoshino considers how competing models of judging presented in Measure for Measure resurfaced around the confirmation hearings for Supreme Court Justice Sonia Sotomayor; how the revenge cycle of Titus Andronicus illuminates the "war on terror" and our military engagements in Afghanistan and Iraq; how the white handkerchief in Othello and the black glove in the O. J. Simpson trial reflect forms of proof that overwhelm all other evidence; and how the spectacle of an omnipotent ruler voluntarily surrendering power in The Tempest, as Cincinnatus did before him and George Washington did after him, informs regime change in our own time.
A Thousand Times More Fair is an altogether original book about Shakespeare and the law, and an ideal starting point to explore the nature of a just society–and our own.
Yoshino (Constitutional Law/NYU School of Law; Covering: The Hidden Assault on Our Civil Rights, 2006) argues that the Bard advanced complex notions about justice, which remain enduringly relevant and deserve to be revisited.
The narrative structure is roughly chronological (the author begins with the early Titus Andronicus and ends with The Tempest) and covers most of the major plays of the canon—The Merchant of Venice,Measure for Measure,Othello, the "Henriad" (Richard II, the two parts ofHenry IV,Henry V),Macbeth,HamletandKing Lear. Each chapter features an exegesis of the play and, usually, a look at a contemporary issue in the light of Shakespeare's views. Throughout, Yoshino's liberal political positions are prominent. He sees in that most sanguinary revenge playTitus, for example, a distant mirror of our mistakes in Iraq. In Portia's hair-splitting at the end of Merchant, he sees analogies to the Clinton-Lewinsky scandal. InOthello, he finds Shakespearean help in understanding the O.J. Simpson murder trial. George W. Bush may initially have seemed like young Prince Hal, but unlike Henry V, Bush failed to win his Agincourt. Most interesting are the author's views onHamlet. He praises the prince's temporizing, viewing it as an intellectual's attempt to be certain before acting, but he condemns him for a fierce focus that ignores the deleterious consequences on others. The author also pauses occasionally to remark upon some enduring issues in Shakespeare's biography. How did he know so much about the law? (Well, he knew a lot abouteverything.) Is there aMacbethcurse? (Of course not.) Yoshino also takes a contrary view of Portia ("her rhetorical skill," he says, "should inspire misgiving") and thinks Cordelia might have been just plain inarticulate.
A fresh promontory from which to view the marvelous and mysterious Shakespearean sea.
Although it put Shakespeare on the map in the
1590s, critics have found The Most Lamentable Romaine Tragedie of Titus
Andronicus "lamentable" in more ways than one. T. S. Eliot called it
"one of the stupidest and most uninspired plays ever written." Har-
old Bloom avers he "can concede no intrinsic value" to the play, while
suggesting that "perhaps it could be yet made into a musical." Oth-
ers have argued that the play was not written by Shakespeare, that
Shakespeare "touched up" another playwright's work, or that Shake-
speare penned it when he was young and needed the money. While
most critics now admit Shakespeare composed it (with coauthor
George Peele), Titus remains the "black sheep" of the Bard's canon.
While I come to defend the play, I understand why others abhor
it. Over its course, the Goth prince Alarbus is sacrificed to the gods,
the Roman general Titus's son Mutius is stabbed to death, the Roman
prince Bassianus is murdered, Titus's daughter Lavinia is raped and
mutilated, Titus's sons Quintus and Martius are decapitated, the
Goths Demetrius and Chiron are murdered and their heads are
baked into a pie, their mother Tamora is served the pie before being
killed, Lavinia is killed, Titus is killed, the Roman emperor Saturni-
nus is killed, and the Goth Aaron is buried alive. When Peter Brook
directed this play in 1955, he had an ambulance waiting to shuttle
audience members to the hospital. Sir Laurence Olivier, who played
Titus, said at least three audience members fainted every evening.
For such a lurid work, Titus riveted the audiences of Shakespeare's
day. In 1594, Titus was a blockbuster success, and, as critic Jonathan
Bate opines, "perhaps did more than any other play to establish its
author's reputation as a dramatist." Critics explain away the play's
commercial success by sniffing that Titus played to the popular taste
for guts and gore, just as public executions and bear-baiting did.
Coleridge writes that Titus was "obviously intended to excite vulgar
audiences by its scenes of blood and horror." That view of Titus rose
to the fore in the nineteenth century, when Titus was either not per-
formed or aggressively bowdlerized.
Yet Titus is not Shakespeare's version of a present-day slasher
film. It carries a serious message about the necessity of the rule of
law. Shakespeare lived in a time without an effective police force,
meaning that individuals who suffered harm had to choose whether
to trust a weak state or take justice into their own hands. This put in-
dividuals in a terrible position. The natural—even rational—impulse
was to turn vigilante. As modern scholars have shown, the blood feud
is a common pre-modern form of justice found in societies as diverse
as Iceland, the Balkans, and Italy. Yet the danger of the feud is that
it inevitably escalates, eventually threatening the entire society. The
only solution is to impose the rule of law, which includes giving the
state a monopoly over the function of punishment. As Justice Oliver
Wendell Holmes once said: "It is commonly known that the early
forms of legal procedure were grounded in vengeance. Modern writ-
ers have thought that the Roman law started from the blood feud,
and all the authorities agree that the German law begun in that way."
Titus is a cautionary tale for how the rule of law must quash cycles of
vengeance that would otherwise destroy society.
Recent decades have seen a revival of interest in the original, un-
expurgated play. Every time a major production has been staged, it
has been a runaway hit. As Bate observes: "Peter Brook's production
with Laurence Olivier as Titus was one of the great theatrical ex-
periences of the 1950s and Deborah Warner's with Brian Cox was
the most highly acclaimed Shakespearean production of the 1980s."
More recently, Julie Taymor's 1999 film Titus with Anthony Hopkins
in the lead role has earned critical acclaim.
Our opinion of Titus, then, seems more Elizabethan than Victo-
rian. When I ask why this play, why now, the answer is disturbingly
clear. Our times are more like Shakespeare's along a crucial dimen-
sion: the fragility of the rule of law. The beginning of a fully global-
ized society without an overarching government puts us in the same
position as Shakespeare's contemporaries. If terrorists fly planes into
our buildings, we must decide whether to submit to the judgments of
a weak international authority or to engage in self-help. Again, the
natural impulse is to act unilaterally. But as we are coming to see,
surrendering to that impulse ends in catastrophe.
It may seem fanciful to use one of Shakespeare's most obscure
plays to illuminate one of our most familiar crises—our wars in Af-
ghanistan and Iraq. But Titus reveals something new about these
wars, which is that they are not truly wars, but vendettas. The post-
modern war on terror is more like the pre-modern blood feud than
either is like a conventional war. For this reason, Titus is not imma-
ture. It is inaugural.
Titus stages an Elizabethan anxiety about how quickly private
vengeance can become unmanageable if the law does not contain it.
Revenge never just evens the odds, but leads to retaliation. That re-
taliation triggers counter-retaliation. The mounting tit-for-tat soon
becomes a full-fledged blood feud between clans. In the play, the
original sacrifice of Alarbus, the Goth prince, by Titus, the Roman
general, begins a cycle of violence that eventually engulfs all Goths
Like us, Shakespeare's contemporaries were ambivalent about
private vengeance. On the one hand, they lived in a society with-
out a real police force or standing army. "Wild justice," as Sir Fran-
cis Bacon called revenge in a famous essay, was often the only kind
available. The early moderns also viewed the revenge instinct to be
natural. The Old Testament lex talionis (literally "law of retaliation")
permitted, and perhaps required, such vengeance: "And if any mis-
chief follow, then thou shalt give life for life, / Eye for eye, tooth for
tooth, hand for hand, foot for foot / Burning for burning, wound for
wound, stripe for stripe."
On the other hand, Elizabethans feared the way individual quar-
rels could spiral into blood feuds. The literary scholar Fredson Bow-
ers writes that "private quarrels between two or three persons not
infrequently spread to whole families and ended in great hurt and
bloodshed." This escalation was particularly common among noble
families, who held their honor dear: James I described "factions and
deadly feuds" as "the motives of greate mischief in greate families."
The "deadly feuds" were sufficiently numerous that one can
provide instances without straying from the author of the play. One
Shakespeare biographer believes the feud between the Montagues
and the Capulets in Romeo and Juliet may have been based on the feud
between the Long and Danvers families. The Long-Danvers feud,
which dated back to the Wars of the Roses but had for some time
subsided, reignited in 1594 when Sir John Danvers, a magistrate, con-
victed a servant of Sir Walter Long of robbery. (In Romeo and Juliet, a
scuffle among servants rekindles hostilities.) After Sir Walter rescued
the servant, Sir John put the master himself in Fleet Prison. Upon
Sir Walter's release, a series of brawls erupted. Sir Walter's brother
Henry wrote abusive letters to Sir John's son Charles, informing him
that "wheresoever he mett him he would untie his pointes and whippe
his etc. with a rodd, calling him asse, puppie, foole & boye." Charles
Danvers and his brother then accosted Henry and Walter Long as
they dined in an inn. Charles attacked Henry with a truncheon;
Henry retaliated with his sword. Charles's brother then drew his pis-
tol and shot Henry dead. No legal repercussions ensued—through the
good offices of Henry Wriothseley, Earl of Southampton, the Dan-
vers brothers were ushered out of the country. Shakespeare would al-
most certainly have been familiar with these events. Southampton is
the dedicatee of Shakespeare's Venus and Adonis and The Rape of Lucrece
and is widely believed to be the dedicatee ("the only begetter of these
ensuing sonnets Mr. W.H.") of the sonnets.
To prevent such feuds, Chris tian moralists in early modern En-
gland urged people to transcend vengeful impulses. Writing in 1609,
the pamphleteer Daniel Tuvil proclaimed: "Ierusalem is new erected;
among her Citizens there is now no thirsting for reuenge. The law of
retribution is disnuld amongst them. . . . An eie no longer for an eie:
a tooth no longer for a tooth." As Tuvil's reference to the new Jeru-
salem suggests, the Old Testament lex talionis gave way to New Testa-
ment mercy. The passage in Exodus ceded to one in Romans: "Dearly
beloved, avenge not yourselves, but rather give place unto wrath: for it
is written, 'Vengeance is mine; I will repay, saith the Lord.' " Human
beings were meant to stay their hands because God would avenge
their wrongs. Bowers notes that for Catholics and Protestants alike
"in the God-fearing Elizabethan age, [religion] exercised a force sec-
ond to none in the constant war against the private lawlessness of the
The catch was that God's punishment, while certain, was often
slow. Lest individuals tire of waiting, retribution was also permitted
to God's agents on Earth, including the sovereign and—critically—
the courts of law. The Statute of Marlbridge (1257) secured the same
power for the courts as the New Testament secured for God. The
statute ordained that "none from henceforth shall take any such re-
venge or distress of his own authority without award of our Court."
This was seen less as an alternative to divine authority than a delega-
tion of it. As Susan Jacoby writes: "The moral hierarchy was clear:
God's just revenge (sometimes too slow to suit human beings but
always certain); public revenge permitted to God's authorized rep-
resentatives on earth (whether embodied in capital punishment,
torture, or a 'just war'); private revenge forbidden to kings and com-
Delegating divine retribution to legal agents, however, was an
imperfect solution, as the law could fail to provide adequate redress.
In such situations, injured parties were pressed back to the original
dilemma of whether to turn the other cheek or take justice into their
own hands. Titus is representative of Elizabethan revenge tragedy in
depicting "wild justice" as the natural choice, but one that necessarily
dooms the avenger and his society.
Titus begins with the Roman general Titus Andronicus re-
turning in triumph from his war against the Goths. During his ten-
year campaign, he has lost all but four of his twenty-five sons. Yet he
has now won a final victory, as evidenced by his prisoners—Tamora
(Queen of the Goths), her three sons, and the Moor Aaron, who is
Tamora's servant and, we later learn, her lover.
As Titus inters his dead sons in the family tomb, his eldest sur-
viving son, Lucius, reminds him to make a human sacrifice:
Give us the proudest prisoner of the Goths,
That we may hew his limbs and on a pile
Ad manes fratrum sacrifice his flesh
Before this earthly prison of their bones,
That so the shadows be not unappeased,
Nor we disturbed with prodigies on earth.
The sacrifice is to be made ad manes fratrum—"to the shades of our
brothers"—to keep them from disturbing the Romans with "prodi-
gies," or supernatural calamities.
Titus accordingly offers up Prince Alarbus, the highest-born
Goth male among the prisoners of war. Tamora kneels and begs for
her son's life:
Stay, Roman brethren, gracious conqueror,
Victorious Titus, rue the tears I shed,
A mother's tears in passion for her son!
And if thy sons were ever dear to thee,
O, think my son to be as dear to me.
Sufficeth not that we are brought to Rome
To beautify thy triumphs, and return
Captive to thee and to thy Roman yoke?
But must my sons be slaughtered in the streets
For valiant doings in their country's cause?
O, if to fight for king and commonweal
Were piety in thine, it is in these.
Andronicus, stain not thy tomb with blood.
Tamora's plea, like many pleas for justice, rests on symmetry. The
only lines with end-rhymes—"And if thy sons were ever dear to thee,
/ O, think my son to be as dear to me"—highlight the link between
"thee" and "me," underscoring Tamora and Titus's common status as
parents. Tamora then argues that the principle of proportionality has
been met. Romans and Goths alike died on the battlefield. To kill
more Goths after hostilities have ended is savage excess.
Titus sees the balance differently. In his view, the Roman dead
cry out for retribution:
Patient yourself, madam, and pardon me.
These are their brethren whom your Goths beheld
Alive and dead, and for their brethren slain,
Religiously they ask a sacrifice.
To this your son is marked, and die he must,
T'appease their groaning shadows that are gone.
Titus is not meant to have our sympathies here. As Tamora recog-
nizes, his is a "cruel, irreligious piety" (1.1.133). Tamora's son Chiron
adds, "Was never Scythia half so barbarous" (1.1.134), underscoring
that it is neither the Goths nor the Scythians (whom Herodotus casts
as the paradigm barbarians), but the Romans who merit the desig-
nation. The question of who is "barbarous" and who is "civilized"
haunts this play.
Excerpted from A Thousand Times More Fair by Kenji Yoshino Copyright © 2011 by Kenji Yoshino. Excerpted by permission of HarperCollins. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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1 The Avenger 1
2 The Lawyer 29
The Merchant of Venice
3 The Judge 59
Measure for Measure
4 The Factfinder 89
5 The Sovereign 127
6 The Natural World 159
7 The Intellectual 185
8 The Madman 209
9 The Magician 233