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Liberty and Shakespeare, Part One

In Arts & Letters, Humanities, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Shakespeare, Western Civilization on May 17, 2012 at 7:51 am

Allen Mendenhall

The following essay originally appeared here on Mises Daily.

In an October 2002 article in the New York Times, “Next on the Syllabus, Romeo v. Juliet,” Adam Liptak investigates the curious if questionable move to install literary texts in law-school curricula. Liptak’s opening lines betray his skepticism:

The fact [that Kafka was a lawyer] got the discussion started on a recent afternoon in a sunny seminar room at the New York University School of Law, where 17 law students and 2 professors gather every week for a sort of book club, for credit, in a class called Law and Literature.”[1]

Liptak’s likening of the class to a book club, quickly followed by his strategic comma usage setting off the phrase “for credit,” implies that, in effect, the course is more about enthusiasm than scholarship. How could the activities of book clubbers, Liptak seems to suggest, merit course credit in professional school? Liptak implicitly raises an even greater question: Does literature matter to the so-called “real” world?

In arguing for the inclusion of humanities courses in law school curricula, law-and-literature professors have had to answer that question. They have convinced professional school deans and administrators that literature is important and relevant to actual problems. The turn to political criticism among English faculty is also a move to show that literature has some practical bearing beyond entertainment or leisure. As humanities programs lose funding and students while law-and-literature faculty, courses, conferences, and journals proliferate, it bears asking whether law-and-literature adherents have done a better job persuading university officials that literature is socially significant.

Nearly every Anglo-American law school offers a course called Law & Literature. Nearly all of these courses assign one or more readings from Shakespeare’s oeuvre. Why study Shakespeare in law school? That is the question at the heart of these courses. Some law professors answer the question in terms of cultivating moral sensitivity, fine-tuning close-reading skills, or practicing interpretive strategies on literary rather than legal texts. Most of these professors insist on an illuminating nexus between two supposedly autonomous disciplines. The history of how Shakespeare became part of the legal canon is more complicated than these often defensive, syllabus-justifying declarations allow.

This essay examines the history of Shakespeare studies vis-à-vis legal education. It begins with early law-and-literature scholarship, which focused on Shakespeare’s history or biography — speculating as it did about whether Shakespeare received legal training or became a lawyer — and concludes with recent law-and-literature scholarship treating Shakespeare as a source of insight for law students and lawyers. Early law-and-literature scholarship on Shakespeare anticipated new-historicist theory. More recent law-and-literature work, with its turn to presentism, seems in lockstep with current Shakespeare studies. In law-and-literature classrooms, Shakespeare is more fashionable (like a hobby) than scholarly (like a profession). But law-and-literature scholarship on Shakespeare represents high-caliber work based on interdisciplinary research and sustained engagement with legal and literary texts.

This essay concludes with a note about the direction of the university in general and of the law-and-literature movement in particular. My closing argument is, I admit, tendentious. It raises issues usually raised by confrontational academics and suggests remedies for what William M. Chace has called “the decline of the English Department”[2] or what Harold Bloom has called “Groupthink” in “our obsolete academic institutions, whose long suicide since 1967 continues.”[3] If Chace and Bloom are right about a decline in academic standards — evidence shows that they are at least right about a decline in the number of English majors — then the fate of literary studies seems grim. Nevertheless, Chace and Bloom overlook the migration of literature professors into American law schools, a phenomenon that has not received enough attention.

One aspect of this phenomenon is the migration of students from the humanities to professional schools. I have known students who hoped to attend graduate school in the humanities but quite understandably viewed that route as impractical and went to law school instead. A positive result of this trend is that many law students are open to the idea of law and literature and find luminaries like George Anastaplo or Stanley Fish more interesting than other law professors. The final comments of this essay will address the strange exodus of literary scholars into professional schools, which pay more money and arguably provide vaster audiences and readership, more generous funding opportunities, and reduced teaching loads.

Perhaps more than other literary disciplines, save for cultural studies, Shakespeare studies has moved into the realm of interdisciplinarity, albeit without large contributions from scholars outside of literature departments. The law-and-literature field would have perished without the expertise of literature professors; likewise, Shakespeare studies, if it continues down the path of politics and cultural criticism, will perish without the expertise of economists, political scientists, and law professors, whose mostly non-Marxist ideas, when pooled with the ideas of the literature scholars, might fill out a space for interesting scholarship and redeem the interdisciplinary label. Information sharing is especially crucial for literature scholars who, in order to examine the history of Shakespeare in American culture, have turned to practices and methods traditionally reserved for other disciplines. In this respect, the direction of Shakespeare studies is representative of the direction of the humanities in general.

It may be possible to overcome disciplinary boundaries while recognizing the importance of disciplinary expertise. For understandable reasons, conservative literary critics decry political trends in current literary theory. What these critics ought to decry, though, is the nature of the political trends rather than political trends themselves. What if, instead of Marxist or quasi-Marxist paradigms, literary critics adopted the theories of free-market economics?

Adherents of law and literature unwittingly have carved out an approach to literary studies that jettisons Marxism and quasi Marxism but that retains civic goals. Law and literature cuts across labels like “conservative” and “liberal.” It demonstrates how professional or vocational studies are incomplete without teachings in liberal arts. At a time when antitraditional, quasi-Marxist ideologies have taken over graduate programs in literature, and when humanities funding and enrollment are wanting, the burgeoning law-and-literature courses offer an avenue for restoration of literary study with a civic focus.

The Early Works

If early law-and-literature work on Shakespeare is any indication, the methods of new historicism are actually quite old. This early work attempted to explain Shakespeare’s sophisticated engagement with the law by examining significant cultural documents (most notably legal documents) that might have influenced Shakespeare. As Cushman Kellogg Davis, the seventh governor of Minnesota and a longstanding senator from that state, opined in 1883,

We seem to have here something more than a sciolist’s temerity of indulgence in the terms of an unfamiliar art. No legal solecisms will be found. The abstrusest elements of the common law are impressed into a disciplined service with every evidence of the right and knowledge of commanding. Over and over again, where such knowledge is unexampled in writers unlearned in the law, Shakespeare appears in perfect possession of it. In the law of real property, its rules of tenure and descents, its entails, its fines and recoveries, and their vouchers and double vouchers; in the procedure of the courts, the methods of bringing suits and of arrests, the nature of actions, the rules of pleading, the law of escapes, and of contempt of court; in the principles of evidence, both technical and philosophical; in the distinction between the temporal and the spiritual tribunals; in the law of attainder and forfeiture; in the requisites of a valid marriage; in the presumption of legitimacy; in the learning of the law of prerogative; in the inalienable character of the crown, — this mastership appears with surprising authority.[4]

This statement smacks of hopefulness and Bardolotry at once. It seeks to enlist Shakespeare in the ranks of lawyers everywhere while celebrating Shakespeare’s apparent ability not just to undertake but master multiple fields (literature and law). Simply put, it seeks to appropriate the ever-“appropriable” Shakespeare. Materialist critics are quick to point out that privileged groups have succeeded in appropriating Shakespeare. In so doing, these critics ignore the irony that their approach is itself an appropriation. The best starting point for criticism on Shakespeare is an acknowledgement that Shakespeare’s works are highly complex and irreducible to cookie-cutter appropriations that seek to enlist the Bard in the ranks of contemporary political causes.

Davis was not alone in his belief that Shakespeare was a lawyer or else a person with legal training. Consider the following lines from a September 1858 letter from Lord Chief Justice John Campbell to an attorney named J. Payne Collier:

Were an issue tried before me as Chief Justice at the Warwick assizes, “whether William Shakespeare, late of Stratford-upon-Avon, gentleman, ever was clerk in an attorney’s office in Stratford-upon-Avon aforesaid,” I should hold that there is evidence to go to the jury in support of the affirmative.[5]

Echoing these sentiments, Richard Grant White, a Shakespearean scholar who studied law at New York University, adopts a more sober tone. White argues that Shakespeare displays no more legal knowledge than other Elizabethan literati. White’s grand and hyperbolic claim is that all the Elizabethan literati therefore must have been lawyers:

There are … considerable grounds for the opinion that Shakespeare had more than a layman’s acquaintance with the technical language of the law. For it must be admitted … that he exhibits a remarkable acquaintance with it. That other playwrights and poets of his day manifest a like familiarity … precludes us … from regarding the mere occurrence of law-terms in his works as indications of early training proper to him alone.[6]

White takes Bardolotry to a whole new level, shamelessly glorifying the entire legal community. What these various quotations show us is that early law-and-literature work on Shakespeare was made up of both informed and wishful speculations about Shakespeare’s legal background. One might venture to argue that this work anticipated the move to philology that ultimately secured Shakespeare’s place in literary education. Although it tended towards overstatement and exaggeration, this work nevertheless considered various texts, primary and secondary, and couched its inquiries in terms of measurable evidence. Little archival research appears to have taken place, however, and the hypotheses of early law-and-literature Shakespeareans seem to pivot on secondary sources collected and classified by nonlegal scholars.

Not all legal scholars believed that Shakespeare was a lawyer; some swiftly dismissed the idea, but instead of dismissing all fancy, these naysayers attributed Shakespeare’s legal knowledge to his extraordinary genius:

Some of the admirers of our great dramatist may assert that the universality of his genius, the strength, vigour, and magnitude of his intellectual faculties and powers of investigation, enabled him to acquire a more profound knowledge of a greater variety of subjects than ever yet seems to have been possessed by the same individual, and that the legal knowledge he has displayed in the correct use of law terms is not more remarkable than his intimate acquaintance with human nature, and accurate observation of the habits and customs of mankind, or than the knowledge of seamanship, and the correct use of nautical terms he has displayed in the Tempest.[7]

This quote by William Lowes Rushton, a Shakespearean and a barrister of Gray’s Inn, does not treat Shakespeare’s familiarity with law as anything less than the workings of a brilliant mind. By Rushton’s account, Shakespeare’s legal knowledge is really a reference point for demonstrating Shakespeare’s worldly knowledge (i.e., his knowledge about everything).

Despite its unchecked enthusiasm, the work of scholars like Davis, Hartrigge, White, and Rushton is far from formulaic. Anticipating objections to his project, Davis is quick to point out that isolating Shakespeare’s legal lexica into individualized compartments — as if one legal reference had no bearing on another despite the overall prevalence of legal terminology in any given play — is to overlook the aggregate importance of law to Shakespeare’s individual plays if not his complete oeuvre. “Some of the quotations, taken alone,” he submits, “are doubtless of trifling probative force. They are given because, in cumulative testimony, each independent fact is a multiplier.”[8]

As Davis penned his conjectures, English departments began popping up across America, solidifying literature as a discipline in itself. It was not unusual, then, for a man of letters like Davis to undertake prolonged literary research projects while maintaining a separate career in politics. It would be anachronistic to suggest that these early law-and-literature scholars thought of themselves as professional academics of either law or literature, since neither law nor literature had congealed into an institutional disciplinary body in America. Nevertheless, these scholars employed techniques that were in many respects ahead of their time and that anticipated later theoretical movements not as novel, perhaps, as we suppose.

Unlike the work of contemporary cultural materialists, whom these early scholars anticipate, the work of early law-and-literature adherents did not seek to recover the lost histories of lower-class peoples or to shed light on lowbrow activities, but instead to demonstrate how statutes, trials, common law precedents and the like might have informed Shakespeare’s law-saturated texts. The early Shakespeare law-and-literature proponents were like new historicists without openly political agendas — which of course does not foreclose the possibility that they had concealed political agendas.

Davis provides numerous examples of new-historicist techniques. He compares the legal proceedings of Mary Stuart with those of Shylock,[9] the drama of the Inns of Court with the drama of the stage,[10] and the diction of Shakespeare’s plays with the nomenclature of the common law.[11] Davis’s goals are not to show that Shakespeare was an ideological product of his era, so Davis cannot have written pure new historicism. Yet his methodology does resemble the new historicism of the late 20th century.

Davis was not alone in his critical methodology. As early as 1859, Campbell wrote about Shakespeare’s “frequent use of law-phrases” and “the strict propriety with which he always applied them.”[12] Campbell appears to have sparked the debate over Shakespeare’s legal training and qualifications. In 1883, Franklin Fiske Heard, a lawyer, jurist, and Shakespearean scholar, published a book titled Shakespeare as a Lawyer,[13] which extends Campbell’s analysis. In 1899, responding directly to Campbell, William C. Devecmon, a lawyer from Maryland, authored In re Shakespeare’s “Legal Acquirements,”[14] which argued that, contrary to popular opinion, Shakespeare often misapplied legal diction. To bolster his point, Devecmon cites 14 errors ranging from Shakespeare’s use of “replication” in Hamlet to his use of “indenture” in Pericles. In 1911, Edward J. White, a practicing lawyer from Baltimore, compiled Commentaries on the Law in Shakespeare,[15] a beast of a book that spells out explanations for each of Shakespeare’s legal designations in all of the plays and eight of the sonnets. “It does not follow,” White cautions, “the law of the plays can furnish any basis for the sensationalist to build up a claim of title to the plays in favor of a lawyer, instead of a poet, for the law is merely incidental in the plays, whereas, the poetry is that of the master poet of all time.”[16]

White rejects a certain kind of romanticism (Shakespeare as lawyer) while embracing another kind (Shakespeare’s immortality). In a second edition,[17] picking up where Davis left off, White adds a chapter on the “Bacon-Shakespeare” controversy. Shortly thereafter two books by British lawyer, politician, and Shakespearean scholar, Sir Granville George Greenwood, followed: Shakespeare’s Law and Latin (1916)[18] and Shakespeare’s Law (1920).[19] These works built on Campbell’s book and attempted to rebut the works (too many to list) of refuters of the Shakespeare-as-lawyer hypothesis. Supportive of Greenwood’s conjectures, Sir Dunbar Plunket Barton, an Anglo-Irish statesman who served for two years as Ireland’s solicitor general, penned Links Between Shakespeare and the Law.[20] Later, in 1936, George W. Keeton, a barrister of Gray’s Inn and a law professor, published Shakespeare and His Legal Problems.[21]

Like a new historicist, Keeton begins his chapters by situating readers in the everyday sites and scenes of Shakespeare’s time and only afterwards making sense of the time-traveling experience. In 1967, Keeton expanded his project in Shakespeare’s Legal and Political Background,[22] the latest of what I call the “early works.” I include this text as an early work because it predates James Boyd White’s publication of The Legal Imagination in 1973,[23] and because it appears late in Keeton’s career but addresses topics that Keeton had considered earlier. It is fair to say, at any rate, that these early law-and-literature scholars were steeped in Anglo-American legal traditions and that they therefore gleaned inferences and meaning from Shakespeare’s works that scholars without legal training may have missed. That does not mean that they always arrived at sound conclusions or made reliable and consistent claims. It does, however, suggest that a person with legal training can tell us a great deal about Shakespeare’s texts that a person without legal training might not.

These examples demonstrate the value of a law-and-literature approach to Shakespeare studies. A new-historicist analysis of Shakespeare’s legal references is not possible without a more-than-passing knowledge of law, legal history, or the common-law tradition. Even though some of Shakespeare’s legal language is inaccessible to American lawyers and law students — whose legal education does not include studies of Gray’s Inn or of the differences between solicitors and barristers — many legal terms used by Shakespeare are quickly recognizable even to first-year American law students. These students, forced to read “old” English cases in contracts and property-law courses, will make out many terms or concepts in Shakespeare that a reader without legal training, or a lawyer who has been practicing in one field so long that he no longer is familiar with working paradigms of other fields, might overlook. The concepts of “fee tail” and “fee simple,” for instance, may mean nothing to graduate literature students, but for lawyers or law students who work with these concepts every day, Shakespeare’s references to them will seem strikingly relevant.

The term “fee tail” refers to an almost obsolete estate that limits inheritability to lineal heirs.[24] This present possessory interest, abolished in most US jurisdictions, passes to a grantee’s heirs until those heirs die without issue. By contrast, the term “fee simple” refers to a full and total interest in a particular piece of property. This interest has a potentially infinite duration, and a holder of a fee simple may sell or devise his interest as he pleases. There are various subcategories of fee tail and fee simple that are not worth mentioning here. The point is that although Shakespeare employs the term fee simple in Merry Wives of Windsor; All’s Well That Ends Well; Henry VI, Part II; Troilus and Cressida; Romeo & Juliet; and Lover’s Complaint (a poem usually attributed to Shakespeare) — all works published around the turn of the 16th and 17th centuries — the term itself is hardly archaic. A present-day lawyer cannot draft a will, let alone pass a bar examination, without understanding the word’s meaning and application.[25]

A new historicist could benefit from these early forays that extract legal topoi from Shakespeare and then examine them in light of connections to popular legal culture. So, for instance, a new historicist might borrow from Davis’s notes about “party verdict,” a term appearing in Richard III. Davis relates this term to the 1631 impeachment of David Ramsay. Ramsay’s trial occurred well after the publication (let alone production) of Richard III, a First Folio work. It does not follow, however, that the trial cannot shed light on the methods by which impeachment trials were conducted at the time of Shakespeare’s writing.[26]

A new historicist might also benefit from Davis’s comparison of act 1, scene 2, of Henry V with Bacon’s Apophthegms, number 184, in which Bacon describes French and German codifications of “law salique,” a measure excluding females from the throne.[27] Works like Davis’s are useful and significant despite their zeal and lofty rhetoric. They tell us as much about Shakespeare’s moment and milieu as they do about the scholars’ moment and milieu. So many law-and-literature scholars currently work out of these early paradigms that an exhaustive list would be impossible to compile in this space. There is now a whole dictionary, edited by B.J. and Mary Sokol, devoted to Shakespeare’s legal language.[28] Suffice it to say that these early works are worthy of attention in their own right.



[1] Adam Liptak, “Next on the Syllabus, Romeo and Juliet,” the New York Times, October 30, 2002.

[2] William M. Chace, “The Decline of the English Department,” the American Scholar (2009).

[3] Harold Bloom, Genius (New York: Warner Books, 2002), p. ix.

[4] Cushman K. Davis, The Law in Shakespeare (Washington, D.C.: Washington Law Book Co.,1883), p. 4–5. One might quibble that this passage represents “old historicism” rather than “new historicism” because the latter usually entails the practice of showing that works of literature are products of economic and cultural hegemonies and thus in need of deconstruction along the lines of ideological filiations. See, e.g., R.V. Young, At War with the Word (Wilmington, Delaware: ISI Books, 1999), p. 87.

[5] N.B. Jedburgh Hartrigge, Preface, in Shakespeare’s Legal Acquirements (John Lord Campbell, ed., New York: D. Appleteon and Co., 1859), p. 9.

[6] Richard Grant White, “William Shakespeare Attorney at Law and Solicitor in Chancery,” Atlantic Monthly, volume 4 (1859), p. 99.

[7] William Lowes Rushton, Shakespeare as Lawyer (London: Longman Brown Green Longmans and Roberts, 1858) p. 3.

[8] Davis, supra note 4, p. 4.

[9] Idem, p. 17.

[10] Idem, p. 56.

[11] Idem, pp. 117–285.

[12] Lord Baron John Campbell, Shakespeare’s Legal Acquirements Considered (London: John Murray, 1859), p. 5.

[13] Franklin Fiske Heard, Shakespeare as a Lawyer (Boston: Little, Brown, and Company, 1883).

[14] William C. Devecmon, In re Shakespeare’s “Legal Acquirements”: Notes By an Unbeliever Therein (London: Kegan Paul, Trench, Trubner & Co., Ltd., 1899).

[15] Edward J. White, Commentaries on the Law in Shakespeare (St. Louis: The F.H. Thomas Law Book Co., 1911).

[16] Idem, p. 1.

[17] Edward J. White, Commentaries on the Law in Shakespeare, volume II. (St. Louis: The F.H. Thomas Law Book Co., 1913).

[18] Sir Granville George Greenwood, Shakespeare’s Law and Latin (Watts & Co., 1916).

[19] Sir Granville George Greenwood. Shakespeare’s Law (London: Cecil Palmer, 1920).

[20] Sir Dunbar Plunket Barton, Links Between Shakespeare and the Law (Boston: Houghton Mifflin, 1929).

[21] George W. Keeton, Shakespeare and His Legal Problems (London: A. & C. Black, Ltd., 1930).

[22] George W. Keeton, Shakespeare’s Legal and Political Background (London: Barnes & Noble, Inc., 1967).

[23] James Boyd White, The Legal Imagination (University of Chicago Press, 1985 [Updated edition of the 1973 version]).

[24] Fee tails serve as a staple plot device of Victorian novels such as Jane Austin’s Sense and Sensibility.

[25] Interestingly enough, Shakespeare himself left the bulk of his will in fee tail to his daughter Susanna. See Samuel Schoenbaum, William Shakespeare: A Compact Documentary Life (Oxford: Clarendon Press, 1977), pp. 292–297.

[26] Davis, supra note 4, pp. 156–58.

[27] Idem, p. 184.

[28] B.J. and Mary Sokol, Shakespeare’s Legal Language (London and New Brunswick, NJ: The Athlone Press, 2000).

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