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Liberty and Shakespeare, Part Two

In Arts & Letters, Austrian Economics, Economics, History, Humanities, Law, Law-and-Literature, Legal Education & Pedagogy, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Shakespeare, Western Civilization on May 22, 2012 at 8:08 am

Allen Mendenhall

The following essay orginally appeared here at Mises Daily.

The Later Works (1973 to present)

It is well settled that James Boyd White’s The Legal Imagination (1973)[29] catalyzed the law-and-literature movement as we know it today. A professor in the Department of English, Department of Classics, and College of Law at the University of Michigan, White brings a unique interdisciplinary perspective to bear on this field that he more or less founded. He remains prolific even in his old age, having published a string of books on a wide variety of topics having to do with legal rhetoric and legal or literary hermeneutics. Since White’s landmark tour de force in 1973, several legal scholars have followed in his footsteps, venturing into literature (broadly defined to include novels, plays, poems, short stories, essays, and so on) to make sense of legal culture and legal texts. Some of the resulting scholarship has been quite good — some, however, more than slightly wanting.

Shortly after White’s “overture,” the work of literary PhDs like Robert Weisberg (PhD, English, 1971, Harvard University; JD, 1979, Stanford University), Richard H. Weisberg (PhD, French and comparative literature, 1970, Cornell University; JD, 1974, Columbia University), and, among others, Stanley Fish (PhD, English, 1962, Yale University) lent credibility to a field seen as dubious by law-school deans and territorial literature professors.[30] Today the movement seems to be picking up, not losing, momentum, in part due to the interdisciplinary nature of the project and in part due to the literati heavyweights who have used the movement as an opportunity to enlarge their celebrity status (to say nothing of their salaries).

The vast array of Shakespeare-focused works that flew under the banner of law and literature during the 1970s, ’80s, and ’90s actually undermined the entire field. Titles like Michael Richmond’s “Can Shakespeare Make You a Partner?” (1989)[31] signaled a practical but nonscholastic rationale for lawyers to turn to Shakespeare’s texts. Works most commonly addressed during this period include The Merchant of Venice, King Lear, Hamlet, and Measure for Measure.[32] In the rush to canonize Shakespeare in this budding genre that sought to include humanities texts in professional schools, even the conspiracy theories of a Supreme Court justice, John Paul Stevens, became authoritative readings.[33] Stevens is not the only Supreme Court justice with an opinion on the Shakespeare authorship debate, as the following chart by the Wall Street Journal[34] makes clear:

Shakespeare’s Court
The Supreme Court on the likely author of Shakespeare’s plays:
Active Justices
Roberts, Chief Justice No comment.
Stevens Oxford
Scalia Oxford
Kennedy Stratford
Souter “No idea.”
Thomas No comment.
Ginsburg “No informed views.”*
Breyer Stratford
Alito No comment.

*Justice Ginsburg suggests research into alternate candidate, Florio.

Retired Justices
O’Connor Not Stratford
Blackmun* Oxford
Brennan* Stratford


That Supreme Court justices have weighed in on Shakespeare’s authorship is more a study in itself and less a constructive contribution to Shakespeare scholarship. Not long after Stevens’s law-review article, at any rate, some creative attempts to render the Shakespeare as lawyer or other conspiracy theories surfaced. Law professor James Boyle, for instance, penned a novel, The Shakespeare Chronicles (2006),[35] dealing with the obsessive search for the “true” author of Shakespeare’s works. I suspect that Boyle would admit that The Shakespeare Chronicles, being fiction, does not represent scholarship, even if its production required rigorous scholarly research.

In light of these false starts, it is no wonder that Richard Posner famously declares, “The biggest danger in any interdisciplinary field is amateurism.… The danger is particularly acute in the case of the lawyer who writes about literature.”[36] One of the greatest and most embarrassing ironies of the whole law-and-literature movement is that Posner’s well-known book Law and Literature[37] has outsold any other law-and-literature work despite being highly critical if not downright dismissive of law and literature in particular and perhaps even imaginative literature in general. For Posner, a pragmatist, literature is hardly more than therapy or consolation and has more often than not led humanity down a precarious rather than a moral path (consider art’s role in the rise of Nazi Germany). It bears noting in passing that law-and-literature work on Shakespeare tended, and tends, to be more sensationalist than law-and-literature work on other authors, so Posner’s claim has particular resonance in the Shakespeare context.

With the publication of Ian Ward’s Shakespeare and the Legal Imagination (1999)[38] and Craig Bernthal’s The Trial of Man (2003),[39] sound scholarship (as opposed to enthusiastic appropriation) made its way into the Shakespeare law-and-literature canon. Ward took up concepts and theories far more complicated than those of his predecessors — specifically, methodologies rooted in rhetoric, phenomenology, hermeneutics, and historicism. Ward’s book implies that an underlying purpose for cross-pollinating two disciplines is to reinvest community politics with epistemic rhetoric and democratic constitutionalism. Ward attempts to describe a Shakespearean politics by openly championing political ideology while acknowledging the limitations of that approach — namely, that any appropriation of Shakespeare reflects on the interpreter more than Shakespeare.

“We cannot,” Ward declares, “make Shakespeare a Marxist, unless we are a Marxist; a patriot, unless we are a patriot; or a postmodern deconstructionist, a new historicist and so on, unless we already are persuaded by postmodernism or new historicism or whatever.”[40] Accordingly, the “Marxist Shakespeare or the postmodern Shakespeare describes the interpreter, not Shakespeare.”[41] Ward does not pretend disinterestedness or otherwise try to mask his tendentiousness, but rather delights in his politically charged call for a communitarian constitutionalism extracted from Shakespeare. He turns to presentism, in particular modern constitutional theory, to advocate for a “contemporary political morality” based on and enacted by Shakespearean paradigms.[42] His presentist flair is in keeping with the presentist flair of contemporary Shakespeare studies, except that his presentism eschews references to contemporary popular culture and instead interrogates the philosophy or jurisprudence of figures like Karl Llewellyn, Michel Foucault, Ronald Dworkin, and Robin West. Ward’s attention to several notables of the Shakespeare-studies movement — Stephan Greenblatt, Michael Bristol, Derek Cohen, and Jonathan Dollimore — props up his scholarship and demonstrates his versatility.

Bernthal is more interested in the concepts of judgment and justice, particularly as they concern Christian mores and traditions. For him, judgment is an archetype. Examining the theological foundations of law, Bernthal uncovers rituals and stories informing Shakespeare’s trial scenes. Shakespeare’s texts are, Bernthal claims, profound responses to the spiritual landscape of Elizabethan and Jacobean England in which religious beliefs poured over and into civil institutions. Shakespeare’s allusions and analogies are often biblical, and Christianity frames Shakespeare’s notions of sin, guilt, natural law, trials, and verdicts. Bernthal brings to light the theological bases for Shakespeare’s legal themes and metaphors. He does so with grace and wit and without burdening readers by over-referencing popular legal culture.

Not all recent law-and-literature work on Shakespeare has come from career academics. Daniel J. Kornstein, a founding partner of the law firm Kornstein, Veisz, Wexler & Poland, LLP, in New York City, recently published Kill All the Lawyers?,[43] a book that is enthusiastic but that refuses to succumb to mawkish celebration of Shakespeare’s life or legacy, the possible exception being the opening paragraphs about Kornstein’s relationship to the New York Shakespeare Festival. Kornstein acknowledges that he practices law “as a profession,” but that “when it comes to Shakespeare,” he is “only an amateur.”[44] He quickly follows, however, with the defensive-seeming statement “The Bard … belongs most of all to the educated amateur, and we need more amateurs.”[45]

Kornstein appears all too conscious of his outsider status. Although not an academic in the popular sense of the term, Kornstein did manage to publish his book with a university press — not necessarily an indication of high-quality scholarship — and to attract back-cover blurbs by such renowned literary journals as Virginia Quarterly Review, Times Literary Supplement, and Renaissance Quarterly. His detailed analyses of figures, events, and places like Joseph Papp, John Shakespeare, the Inns of Court, the Alien Statute (c.f. Merchant of Venice), oral advocacy, classical republicanism, genre, slander, and civil procedure — all in light of Shakespeare’s plays — suggest that his self-derogatory tag of amateurism is excessive humility, possibly even facetiousness. Kornstein appears to know more about Shakespeare than the average literature professor not specializing in Shakespeare. That does not make him an expert, but it does seem to suggest that his self-criticism is tongue-in-cheek if not downright deflective (right off the bat, he has an excuse for any shortcomings).

Like Ward, Kornstein is in lockstep with current Shakespeare studies in its turn to presentism. Rather than investigating contemporary philosophy, however, Kornstein analyzes milestone figures and events from popular legal culture. Although impressively researched, Kornstein’s book is burdened with these forced attempts to relate Shakespeare’s texts to present day, or near-present-day, affairs — among them, Oliver Stone’s film JFK, the Supreme Court decision in Bowers v. Hardwick,[46] the Fourteenth Amendment, or the Senate Judiciary Committee. Kornstein does not buttress his attempts with many references to critical theorists or prominent figures of the cultural-studies movement. His analyses seem desperate to demonstrate that Shakespeare is relevant to contemporary audiences. His interrogation of Bowers vis-à-vis Shakespeare leads to a sweeping conclusion that the “problem of law and morality is complex and divisive,” that law “reflects and advances the prevailing moral values of society,” and that “laws have a moral dimension, and judges are necessarily influenced by the spirit of the age.”[47] Although these statements are probably true, they are also general to the point of counterproductivity. Generality notwithstanding, one might also criticize Kornstein for trying to make Shakespeare sexier to contemporary audiences by relating Shakespeare to only the most exciting legal phenomena. Shakespeare’s contemporary relevance would be better shown by exploring the mundane aspects of law — like fee tail and fee simple — that Shakespeare’s texts clearly implicate.

If Kornstein cannot help but view Shakespeare through the lens of an early-21st-century American lawyer, we should not indict him for it. After all, his views enable future examinations of oft-overlooked aspects of Shakespeare’s plays: statutes, trials, rights, duties, taxes, and so on. Kornstein also reveals a compelling synergy between law and literature even as he disclaims any sort of expertise and even as he purports to jettison politicized schema of race, gender, and identity:

I hope I — as a lawyer — am not simply projecting or adopting a strained, partial, single-minded interpretation. To be sure, it is a common observation that whoever writes about Shakespeare no doubt writes about him or herself. Lawyers, Marxists, Freudians, feminists, and others often yield to the temptation to put the role of their special interest above all else, and end up sifting through Shakespeare’s plays in search of echoes of their own preoccupation. In the process, such readers often ignore a great deal of contrary evidence supporting a different notion of Shakespeare. They make the mistake of seeing both in the plays and in Shakespeare’s own attitudes only those elements that accord with their wishes.[48]

If anything, this quote recalls a phenomenon to which I have already referred: Shakespeare’s constant “appropriability.” That Kornstein acknowledges this phenomenon suggests that he is aware of the culture wars so often marking Shakespeare studies. Kornstein’s conclusions may seem general, but they are never unfounded. His presentist tactics demonstrate an awareness of contemporary Shakespeare studies while his rejection of race and gender theory reveals his disenchantment with contemporary Shakespeare studies.

The Big Picture

Lawyers do have something significant to offer Shakespeare studies, and law professors, especially those with literary training or a sustained familiarity with Shakespeare, are invaluable resources for literary scholars and can even be literary scholars in their own right. If we heeded the call of the Cade’s Rebellion conspirators (c.f., King Henry VI) and killed all of the lawyers, we would, I suspect, miss out on some unique points of view. Worse, we might become careless in our scholarship, particularly when situating Shakespeare’s plays in contemporary legal contexts.

As a case in point, consider Ayanna Thompson’s essay “The Blackfaced Bard,”[49] which attends to various sites of audience reception of Othello productions performed in blackface. What sets Thompson’s essay apart from other, similar essays is its turn to legal texts to investigate the ways that judges codify, authorize, or manage codes of speech and performance by assessing audience interpolation. Thompson’s abrupt transition to legal theory on blackface is both interesting and unusual. She seems to acknowledge that her move is problematic. She refers to “these seemingly disparate points of analysis”[50] and later declares that while “it may seem as if I have taken us far from the debate about blackface performances of Othello, I am interested in these recent legal findings because they offer a fascinating discussion about the tension between intention, practice, and reception.”[51] Strangely, Thompson’s recognition of a disjuncture seems to alleviate that disjuncture. On the other hand, the disjuncture is there, glaring and obtrusive. Thompson does a nice job — far better than most law students — briefing three cases: Berger v. Battaglia, In re Ellender, and Locurto v.Giuliani.[52] Her point about these cases is that judges weigh communal receptions of blackface more heavily than they weigh performers’ intent in donning blackface. More to the point, judges privilege negative media attention over any factoring of authorial intent.

Most practicing lawyers probably would prefer to see Thompson tease out the balancing test used to weigh certain First Amendment rights, but she glosses over that issue (“While debates about the balancing mechanism used to weigh the plaintiff’s First Amendment rights against their ability to perform their public-service positions efficiently is a fascinating area of legal debate, I am more interested in the way this balancing mechanism privileges discussions of reception over intention”).[53] In fact, she glosses over several legal issues, jumping from various federal circuit decisions to a Supreme Court decision in just three pages,[54] and from hate-speech issues (“group libel” or “fighting words”) about which entire books have been written, to related but still very different obscenity cases.[55] She also provides no countercases — cases with opposite holdings — which almost always exist and which often split the circuits. At the very least, she could have differentiated between content regulations, which limit the communication of specific ideas, and conduct regulations, which limit such things as the time, place, and manner in which speech is conveyed.

Lawyers will no doubt appreciate Thompson’s overarching theories, even if she does not adequately untangle the legal specificities on which they rely. She is at her best when arguing, “I do not believe that reception is static when it is ‘collectivist,'” and that “intention, practice, and reception cannot be disentangled” because “they inform and challenge each other.”[56] Here she takes on some fairly prominent legal thinkers in a critical way, but her efforts, unfortunately, are abortive and therefore merely beg the question. Had Thompson collaborated with a professor of constitutional law or an expert on the First Amendment, her article would have been extraordinary. As it is, her article leaves much to be desired — it is a perfect example of why interdisciplinary collaboration is valuable to academics, especially academics in disciplines traditionally classified under the rubric of the humanities.

In the humanities, collaborative texts, or at least coauthored texts, are more the exception than the rule, unlike in scientific and economic disciplines — the so-called hard sciences — in which collaborative or coauthored texts are standard. I would venture to say that by resisting interdisciplinarity, conservative literary critics have allowed ideologues and fanatics to take over literary studies and to embarrass the literary profession by embracing Marxism and its triumphalist teleology. The demise of literary studies may have something to do with this takeover. For who in his right mind would major in a discipline that celebrates teachings that have caused such destruction and tyranny when applied to the workaday world? Rather than avoiding law or economics, perhaps literature professors should avoid bad law and bad economics.

In no other nonscientific field has interdisciplinarity been accomplished so smoothly as in law and literature. Shakespeare studies would benefit from a similar integration and diversification of information. Over time, so much has been written about Shakespeare that his works have become merely pretext for literary scholars to opine about more systemic problems and to negotiate any number of cultural challenges. This article itself uses Shakespeare as an entrance into other, broader issues. For various reasons, conservative literary critics decry this shift in focus because they view the resulting criticism as belonging to practitioners of separate fields of study. Too often, though, their response is to divorce literature from the cultures and communities that shape it — to treat economics or law as beside the point. Economics and law are not beside the point. They inform literary studies and enable insightful readings of literary texts.

What we need is an economic approach to literary criticism that will undo the damage of Marxism and its variants. Law and literature may be the most promising field for such an approach. Without unfixing the privilege of literature, law-and-literature scholars demonstrate literature’s relevance and importance to society. The success of law and literature should inspire literary theorists to team up with experts from other fields — economics, law, political science — to produce criticism that incorporates knowledge and know-how from multiple perspectives. With the notable exception of Paul Cantor, a Shakespearean who has applied Austrian-economic theory to literary texts, and Stephen Cox, who recently coedited Literature and the Economics of Liberty[57] with Cantor, only a few literary scholars work out of non-Marxian economic paradigms. Conversely, few economists view Marxian economics favorably. It would therefore seem that economists would dismiss a great deal of materialist criticism in Shakespeare studies, if only because its analyses pivot on Marxism or quasi Marxism and ignore the broad spectrum of alternate economic schools.

The fact that Marxism remains the dominant mode of economic literary theory suggests that literature professors have become completely out of touch with scholarship in fields like politics, economics, and law. The fact that Marxist critics celebrate ideology critique as if their approaches were above and beyond ideology suggests a tunnel vision and closed-mindedness that threaten the credibility of literary studies. Posner’s argument that literature is irrelevant except as therapy will gain currency if literature professors do not reverse course and reconsider their treatment of economics, and possibly even their appropriations and adaptations of Freud.

If literature professors are going to treat political activism or economic theory as a starting point for criticism, they must become apprised of the political economy of thinkers beyond Marx, Althusser, Jameson, and the like, whose several ideas — which pervade materialist criticism — have not in practice helped the plight of the poor or disenfranchised the way that capitalism has. Few if any professors do “Smithian” or “Misesian” or even “Keynesian”[58] analyses of literary texts, even though these perspectives recall sounder and more consensus-based economic theories. Literature professors must deal with the possibility that literature itself is totally incompatible with the Marxist school of historiography. Reading, producing, and studying literature requires time, money, leisure, and luxury. The genealogy of literature is fraught just as the study of literature is fraught. To realize a utopian Marxian vision might require abandoning literature altogether. Is that the ends towards which materialist criticism aspires?

I will conclude by sharing my enthusiasm about interdisciplinary scholarship such as that which appears in law-and-literature journals. This kind of scholarship often rejects the single-author model, perhaps because there are too many journals and books for one person to read them all and to retain more than a superficial understanding of multiple areas of research. The future of the humanities may involve more joint-authorship ventures. The mass proliferation of literacy, knowledge, and texts has made a working familiarity with multiple and differing fields nearly impossible.

For better or worse, the age of the Renaissance man is over. One individual cannot produce informed scholarship in several fields without the help of others. Coauthorship is not a panacea for information overload. It may create new problems. Good writers with distinct voices might have their voices diluted by coauthors. And how is scholar A, a nonexpert in field X, going to choose collaborators in field X without working in that field himself? How will scholar A judge the final efforts of his collaborators? These questions suggest that coauthorship is not the solution to various problems afflicting the humanities, although it is an option that could reverse leftist and Marxist trends.

If the aim of scholarship and the university is the pursuit of knowledge, then knowledge should not be stifled by monopolistic claims of ownership over ideas, historical figures, genres, or disciplines. Perhaps the time is ripe for a reevaluation of the university mission. As angst about the putative death of the humanities grows, humanities scholars might ask themselves whether they are writing themselves into extinction by undertaking projects on law, economics, science, and so on, without the cooperation of experts who work in those fields and who have devoted entire lifetimes to those critical paradigms. Likewise, professors of law, economics, science, and so on, should not grow defensive when humanities scholars point out the often fatal limitations of an experimental foray into texts to which humanities scholars have devoted entire lifetimes.

We can no longer hide behind the security of disciplinary barriers. We must step outside of our comfort zones. Disciplinary impediments serve to restrain intellectual production by blocking channels of communication and by shutting down access to much needed resources — most notably, experts in other fields. The future of law and literature and perhaps all of the humanities depends on the traversing of road blocks, the negotiation of conflicts, and, to once again mix metaphors, the substitution of certain players when other players become tired or winded. The humanities are probably not going to die any time soon. But they might find a new expression in professional schools where interdisciplinarity and coauthorship are more commonplace, and where Marxism is not the default and dominant paradigm.

[29] White, supra note 23.

[30] With apologies for the references to academic pedigree. I am of the mind that the works of a scholar either stand up or do not, pedigree notwithstanding. I mention the various academic degrees simply to show that these scholars have professional training in both law and literature.

[31] Michael L. Richmond, “Can Shakespeare Make You a Partner?” St. Mary’s Law Journal, volume 20 (1989), pp. 885–896.

[32] I base this observation on the online working bibliography of Professor Daniel J. Solove.

[33] See, e.g., “John Paul Stevens, The Shakespeare Canon of Statutory Construction,” University of Pennsylvania Law Review 140 (1992), pp. 1373–1387.

[34] Jess Bravin, “Justice Stevens Renders an Opinion on Who Wrote Shakespeare’s Plays: It Wasn’t the Bard of Avon, He Says; ‘Evidence Is Beyond a Reasonable Doubt,'” the Wall Street Journal, April 18, 2009.

[35] James Boyle, The Shakespeare Chronicles (Lulu Press, 2006).

[36] Richard Posner, Law and Literature: A Misunderstood Relation (Cambridge, Mass.: Harvard University Press, 1988) p. 363.

[37] Idem.

[38] Ian Ward, Shakespeare and the Legal Imagination (London, Edinburgh, Dublin: Butterworths, 1999).

[39] Craig Bernthal, Trial of Man: Christianity and Judgment in the World of Shakespeare (Wilmington, Delaware: ISI Books, 2003).

[40] Ward, supra note 38, at 17.

[41] Idem.

[42] Idem, pp. 18–19.

[43] Daniel J. Kornstein, Kill All the Lawyers?: Shakespeare’s Legal Appeal (Princeton University Press,1994).

[44] Idem, pp. xiii–xiv.

[45] Idem, p. xiv.

[46] 478 US 186 (1986).

[47] Kornstein, supra note 43, at 41.

[48] Idem, p. xiii.

[49] Ayanna Thompson, “The Blackfaced Bard: Returning to Shakespeare or Leaving Him?,” Shakespeare Bulletin 27 (2009), pp. 437–456.

[50] Idem, p. 440.

[51] Idem, p. 446.

[52] Idem, p. 445.

[53] Idem, p. 447.

[54] Idem, pp. 446–448.

[55] Idem, p. 448.

[56] Idem, p. 449.

[57] Paul A. Cantor and Stephen Cox, eds., Literature and the Economics of Liberty: Spontaneous Order in Culture (Ludwig Von Mises Institute, 2009).

[58] I must emphatically register that I do not endorse Keynesian economics, but I use this example because it is more mainstream than Marxism.

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