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Shakespeare AND THE LAWA CONVERSATION AMONG DISCIPLINES AND PROFESSIONS
THE UNIVERSITY OF CHICAGO PRESSCopyright © 2013 The University of Chicago
All right reserved.
Chapter OneBRADIN CORMACK, MARTHA C. NUSSBAUM, and RICHARD STRIER
SHAKESPEARE AND THE LAW
Shakespeare's most famous character offers us a striking entry into the question of how Shakespeare responded to the law and legal systems he lived under. Standing at the edge of a grave whose tenants are being evicted to make room for a new owner, the prince picks up a skull (not the famous one) and, supposing it to belong to a lawyer, meditates on the law and its limitations:
There's another [skull]. Why may not that be the skull of a lawyer? Where be his quiddities now, his quillities, his cases, his tenures and his tricks? Why does he suffer this mad knave now to knock him about the sconce with a dirty shovel, and will not tell him of his action of battery? Hum! This fellow might be in 's time a great buyer of land, with his statutes, his recognizances, his fines, his double vouchers, his recoveries. Is this the fine of his fines, and the recovery of his recoveries to have his fine pate full of fine dirt! Will his vouchers vouch him no more of his purchases, and double ones too, than the length and breadth of a pair of indentures? (Hamlet 5.1.93–103)
Hamlet's punning questions about the law's means and ends pull the audience in two directions at once, away from the law but also, in complex ways, toward it. The satire strikes first—the spate of legal terms and Hamlet's articulation of the gap between the knowledge and practices that make the lawyer what he is and the place (literally) where that fancy technical knowledge ends up. The lawyer is satirized for his schemes to get, presumably, as much land as possible and also, more directly, for forgetting how fleeting the world and its rewards are. This is a common forgetfulness, but the lawyer's work puts him in a special relation to it. His voucher—a voucher is a guarantee to title in land transactions—emblematizes untrustworthiness generally because, as a legal document, it embodies the whole process of substituting formal instruments for the "real" bonds between persons that would make such things unnecessary. In this register, legal agreements are the mark of a fallen world. But the more technical and amusing reason that the lawyer's voucher can stand for the instability of worldly promises is that the voucher was familiar in Elizabethan common law chiefly as a legal fiction used "collusively by a vendor and purchaser" in the conveyance of land that could otherwise not be sold; and according to the fiction, it was precisely the failure of the vouchee (standing for the vendor) that allowed the purchaser to take possession. The voucher was useful in a common-law case because everyone involved recognized that it was not going to be a guarantee at all. In this sense, Hamlet's insistence that the legal voucher is empty (because it must ultimately betray the lawyer) responds to the fact that the voucher was already emptied out in contemporary law—and its emptiness is precisely what made it useful.
If Shakespeare's exposure of the law's guarantee as differently fictive thickens the satire, it also has the contrary effect of pulling the engaged audience toward the law's ingenuity in achieving its ends, with the law absorbing some of Hamlet's scintillating capacity to make words do extraordinary things, sometimes against themselves. The prince's jab at his imaginary lawyer shows Shakespeare inviting the audience to judge the law's turns and tricks but also to linger in the inventiveness of its forms.
The technical playfulness in Hamlet's take on lawyers identifies a first point about Shakespeare's dramatic representation of English law. As the essays in this volume variously demonstrate, a gesture in the plays that may at first look like a simple allusion to a legal concept or practice often points to a deeper engagement with how legal professionals organized the world, whether in relation to the law's technical workings or its underlying premises or its social effects. Even when Shakespeare seems merely to be decorating his dialogue with some legal word he has picked up (no specialist he!), Shakespeare is capable of great precision in his understanding of how law works and what it is for.
Hamlet's mockery also helps us think about Shakespeare's legal thinking in a second way. The speech compactly indexes the various registers or modes in which the law existed. First and foremost, the law was a practice or activity, a set of actions undertaken by various institutional actors (e.g., common lawyers, canon lawyers, common-law judges, ecclesiastical judges, sheriffs, bailiffs, jurors, jailers, clerks, scriveners) for the ordering of society. Hamlet's bookish lawyer acts in the law's way, a point emphasized through the satirical comparison of the gravedigger's battery as one kind of action (primary, direct) and the law's battery as another kind (secondary, indirect). Second, the law was a body of doctrine, rules and norms that shifted over time as lawyers and judges, in different venues, worked either to fit the law to changes in society or to manage more efficiently (and ever more ingeniously) the problems confronting them. Third, the law functioned as an idea or, better, a cluster of ideas: if in one respect law was the very image of justice, it could also be seen, in Hamlet's way, as an imperfect vehicle in an imperfect world, at best a workable substitute for the unreachable ideal and at worst a machine to cover unethical behavior. Fourth, the law was recognizably a profession, by Shakespeare's time a main route to social and political advancement. As such, the law was a site both for nationalist pride (with the common lawyer taking the role of protector of English liberties) and for intense resentment (with the lawyer taking the role, as in Hamlet's portrait, of self-interested and mercenary scoundrel). Finally, as a discipline, the law was one of the learned disciplines, a kind of knowledge, along with theology and medicine, whose textual method and transmission were essential to its identity as knowledge. When Hamlet lists the instruments that allow the lawyer to become a "great buyer of land," he is pointing to one of the law's most distinctive characteristics: the law that interests Shakespeare was made on paper and on parchment, and it was transmitted, like his own plays before and after their performance, in writing and in books.
Across his work, Shakespeare responds to the law in each of these registers—as a practice, a body of rules, an idea, a profession, and a discipline. As attested to by a number of recent collections on Shakespeare and law, and on law in early modern literature generally, the law is everywhere in Shakespeare's plays. This is because, most simply, it was everywhere in his culture. It was there in the common-law courts and at the Inns of Court (from which the early modern stage drew an important part of its audience and some of its authors); in the church courts and the municipal courts; in the schools and the traditions of forensic rhetoric transmitted there; on the streets and in the home; on summons and writs and in contracts; in the all-important documents for conveying property or, alternatively, limiting its alienation in the future; in books and the emerging notions of property in them; in current ideas of the state; in the consolidation of England's interests on the ocean and vis-à-vis its international neighbors; and in the sense of self and of relation that people carried into their conversations and within themselves.
The passion of Elizabethans for law was impressive compared even to present-day American litigiousness, one estimate suggesting that toward the end of Queen Elizabeth's reign an English population of around 4 million persons was involved in 1 million actions per year. One plausible cause of this extraordinary litigiousness in the culture (and certainly an ongoing effect of it) was that, especially in the wake of the Reformation and the ascent of the common law in the polity, English law was becoming the dominant institution for the production and regulation of social relations. In Elizabethan and Jacobean England, there was no way around law, and if Shakespeare's contemporaries were burdened by the law's constraints, they also found exciting the law's distinctly modern way of organizing their society. (We may note here that it is no accident that, apart from Shakespeare's plays and poems, most of what makes up his "documentary life" consists of legal documents or their equivalents—in fact, on the basis of the records, Shakespeare's legal transactions are his life.)
The law gets into the plays in many ways—as a theme, as an element of characterization, as a structure in the plots. In relation to each of these, we are likely to remember, first, the great trials and quasi-trials that take place on Shakespeare's stage—in Leontes v. Hermione (The Winter's Tale), in Shylock v. Bassanio (The Merchant of Venice), in Rex v. Catherine (Henry VIII), and in Rex? v. Daughters (quarto King Lear). The law is no less memorably present in the harsh judgments that sometimes get Shakespeare's plots going—as when, in The Comedy of Errors, a stranger is condemned to death for traveling to the wrong city and for not having money on hand to avoid the penalty, or when, in Measure for Measure, a man is condemned to die for sleeping with his (at least) betrothed. And of course the law is present in Shakespeare's representation of its subordination to political interests, as at the beginning of Henry V, where legal interpretation is called on to rationalize Henry's military designs on France. As these different examples suggest, and as several essays in this volume attest, a crucial aspect of Shakespeare's representation of legal process and legal thinking is his emphasis on the legal system's rigid and sometimes foolish formalisms. The effect of this emphasis is that the plays concerned with law can seem not just to try legal questions (whether in the stage courtroom or, more generally, in the special forum that the play itself is) but also to try the law itself.
Law and Literature
While the essays collected in this volume are contributions most immediately to an area of Shakespeare studies, they may also be seen as contributions to a branch of legal scholarship known as the law-and-literature movement. This movement, which was initially closely associated with the University of Chicago Law School, started in the early 1970s, when courses in law and literature began to be offered at a few U.S. law schools. A founding contribution was James Boyd White's The Legal Imagination, first published in 1973, when White was on the faculty of the University of Chicago Law School, teaching courses like the one out of which this book emerged. At a later date, Richard A. Posner's Law and Literature, first published in 1988 when he was regularly teaching law and literature courses at the University of Chicago Law School, became one of the movement's most widely influential works. A third Chicago connection to the law-and-literature movement was Martha C. Nussbaum's Poetic Justice: The Literary Imagination and Public Life, a book published in 1995, shortly after she joined the University of Chicago Law School faculty.
The number of law-and-literature courses being taught in the United States has increased exponentially since the 1970s. "Law and Literature" is now, in one form or another, a recognized part of the American legal curriculum. The law-and-literature movement is less a monolith than a cluster of approaches—at times inconsistent with one another, at times mutually reinforcing. It includes scholars who differ in methodology and point of view and, perhaps most importantly, in their reasons for bringing literature into the study of law. One may (roughly) discern four groups. The first consists of legally informed lovers of literature, scholars (Posner, for example, and Robert Ferguson) who, noting that legal studies have become increasingly interdisciplinary over the years, with influences from economics, philosophy, psychology, history, and sociology, seek to add literature to the conversation. These scholars have no specific viewpoint to propose and no specific discontent with existing legal scholarship. Posner's approach, for example, stresses chiefly the differences between literary and legal interpretation, differences that for him limit quite strictly what literature and law can bring to each other. In a similar vein, the literary and legal scholar Stanley Fish has emphasized that law, as a formal textual system, involves rhetorical ends that are specific to itself and justified by the exigencies of practice. A second group of scholars (Nussbaum, for example, and White, and Robin West), noting the dominance of economic approaches to legal analysis, argue that important elements are missing from such analyses and that engagement with literary works may supply some of those missing elements—for example, an attention to the affective dimensions of the process and rhetoric of adjudication. These writers challenge the hegemony of economic approaches to law. Scholars such as Richard Weisberg and Peter Brooks are similarly interested in reminding lawyers of the importance to legal thought of the kind of qualitative analysis that literary works exemplify. A third group of scholars, working primarily within literary studies, have noted the close historical relation between literary production and legal culture and education, and they have argued that the study of literary texts can be enriched by attention to their legal and legal-rhetorical contexts, just as our understanding of law can be enriched by attention to moments in legal culture when literary texts were not so far removed from legal ones as they are now. A fourth group of scholars, working in both literature and law, feel that the present legal conversation lacks a set of radical challenges to the political status quo and that attention to literary texts, especially through the lens of postmodern interpretive methods, can help legal academics and professionals construct a more radical mode of analysis. (This last approach, closely associated with the "critical legal studies" movement in legal scholarship, is not represented, except indirectly, in the present collection.)
Among the Disciplines
This collection emerges out of a conference on "Shakespeare and the Law" held at the University of Chicago in spring 2009. While it is not a volume of proceedings, most of the essays included here originated at the conference; the roundtable with which the volume concludes is an edited version of an event that took place there. The conference was organized by three scholars connected to the university but who have quite different professional profiles: Martha C. Nussbaum, a philosopher who teaches in the Philosophy Department as well as at the Law School; Richard Posner, a sitting U.S. appellate judge (Seventh Circuit) who was a full-time faculty member at the Law School from 1969 until 1981 and remains a lecturer there; and Richard Strier, a professor in the English Department. The aim of the conference was to extend work the three of them had been doing in a cotaught seminar on Shakespeare by bringing together literary scholars who work on Shakespeare and law, literary scholars who work on Shakespeare generally and could be induced to think about law, philosophers with an interest in law, law professors, and practicing judges. We were fortunate in the final category to welcome a sitting member of the U.S. Supreme Court, Justice Stephen G. Breyer, and a colleague of Judge Posner's on the Seventh Circuit, Judge Diane Wood. We were eager to be as inclusive as possible in our disciplinary and professional reach.
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Table of ContentsIntroduction: Shakespeare and the Law
BRADIN CORMACK, MARTHA C. NUSSBAUM, and RICHARD STRIER
I. HOW TO THINK “LAW AND LITERATURE” IN SHAKESPEARE
Two Differences between Law and Literature
Decision, Possession: The Time of Law in The Winter’s Tale and the Sonnets
“Lively Evidence”: Legal Inquiry and the Evidentia of Shakespearean Drama
II. SHAKESPEARE’S KNOWLEDGE OF LAW: STATUTE LAW, CASE LAW
Interpreting Statute in Measure for Measure
RICHARD H. MCADAMS
Vengeance, Complicity, and Criminal Law in Othello
III. SHAKESPEARE’S ATTITUDES TOWARD LAW: IDEAS OF JUSTICE
RICHARD A. POSNER
Law and Commerce in The Merchant of Venice
Opinion of Fried, J., Concurring in the Judgment
Equity in Measure for Measure
Shakespeare and Legal Systems: The Better the Worse (but Not Vice Versa)
IV. LAW, POLITICS, AND COMMUNITY IN SHAKESPEARE
Liquid Fortification and the Law in King Lear
Saying in The Merchant of Venice
MARIE THERESA O’CONNOR
A British People: Cymbeline and the Anglo-Scottish Union Issue
MARTHA C. NUSSBAUM
“Romans, Countrymen, and Lovers”: Political Love and the Rule of Law in Julius Caesar
DIANE P. WOOD
A Lesson from Shakespeare to the Modern Judge on Law, Disobedience, Justification, and Mercy
Shakespeare’s Laws: A Justice, a Judge, a Philosopher, and an English Professor