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The Trial Scene in Shakespeare’s “Merchant of Venice”

In Arts & Letters, Books, British Literature, Fiction, History, Humanities, Jurisprudence, Justice, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Shakespeare, Theatre, Western Civilization on August 31, 2016 at 6:45 am

Allen 2

The following excerpt is adapted from my essay “A Time for Bonding: Commerce, Love, and Law in The Merchant of Venice,” which may be downloaded at this link.

Act IV, Scene I of William Shakespeare’s Merchant of Venice involves the climactic court scene in which Shylock and Antonio confront one another, in person, before Portia, who will determine Antonio’s fate.

At this point Portia has already revealed to Nerissa, her lady-in-waiting, her plan to “wear my dagger with the braver grace / And speak between the change of man and boy / With a reed voice, and turn two mincing steps / Into a manly stride, and speak of frays / Like a fine bragging youth.” She and Nerissa will cross-dress, in other words, and once “accoutred like young men” will act as though Portia is a doctor of laws, or a law clerk, administering justice and adjudicating disputes in the Duke’s Venetian courtroom.

Bassanio attempts to settle the case on Antonio’s behalf by tendering Shylock double and then triple the amount of the original loan, but Shylock unmercifully insists on exacting a pound of Antonio’s flesh. Portia appears to support Shylock, saying, “[T]here is no power in Venice / Can alter a decree established: ‘Twill be recorded for a precedent, / And many an error by the same example / Will rush into the state: it cannot be.” Although she says that Shylock’s “suit” is “[o]f a strange nature,” she submits that “in such rule that the Venetian law / Cannot impugn you as you do proceed.”

Praising Portia as a “Daniel come to judgment,” Shylock demands that a judgment be entered against Antonio immediately: “When [the bond] is paid according to the tenour. / It doth appear you are a worthy judge; / You know the law, your exposition / Hath been most sound: I charge you by the law, / Whereof you are a well-deserving pillar, / Proceed to judgment: by my soul I swear / There is no power in the tongue of man / To alter me: I stay here on my bond.” Antonio himself conveys a preference for swift judgment: “Make no more offers, use no farther means, / But with all brief and plain conveniency / Let me have judgment and the Jew his will.”

Portia readies the others for the judgment by telling Antonio to “prepare your bosom for [Shylock’s] knife.” That the bond calls for the pound of flesh to be exacted “nearest [Antonio’s] heart” draws attention to the metaphorical implications of the judgment and the plural meaning of the bond: it is not just the contractual relationship but the potential for friendship that is about to be carved apart.

Just before the judgment is to be perfected, Bassanio and Antonio profess their love for one another. Portia then explains to Shylock—turning his literalism against him—that the judgment calls for the removal of a pound of flesh but “no jot of blood.” If any blood should be drawn, then Shylock must forfeit his lands and goods to Venice. There being no way to cut a pound of flesh without drawing blood, Shylock finds himself in a precarious situation. Portia tells him that

The law hath yet another hold on you.

It is enacted in the laws of Venice,

If it be proved against an alien

That by direct or indirect attempts

He seek the life of any citizen,

The party ‘gainst the which he doth contrive

Shall seize one half his goods; the other half

Comes to the privy coffer of the state;

And the offender’s life lies in the mercy

Of the duke only, ‘gainst all other voice.

In which predicament, I say, though stand’st;

For it appears, by manifest proceeding,

That indirectly and directly too

Thou hast contrived against the very life

Of the defendant; and thou hast incurr’d

The danger formerly by me rehearsed.

With these words, Shylock is defeated. The Duke pronounces that, as a consequence of the legal proceeding, Shylock shall render half his wealth to Antonio and half to Venice, but Antonio pleads that he will forego his share if Shylock converts to Christianity. The Duke concedes; Shylock acquiesces. The litigation comes to a close.


Bond and Bonding in Shakespeare’s Merchant of Venice

In Arts & Letters, Austrian Economics, Books, British Literature, Economics, Essays, Fiction, History, Humane Economy, Humanities, Law, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Philosophy, Politics, Scholarship, Shakespeare, Western Civilization, Western Philosophy on April 6, 2016 at 6:45 am

Allen 2

A bond is an agreement, the unification of individuals or groups under mutual terms. Parents may bond affectionately with their children just as friends may bond affectionately with one another. Marital bonds join spouses in a sacred contract that confers conjugal rights and duties.

A bond is also a security for a debt. Banks may issue and underwrite bonds with fixed interest rates or correlative maturity dates in exchange for the promise of repayment. Bonds may be defeasible, high-yield, low-yield, covered, subordinated, or perpetual. They may be backed by liens or mortgages. There are government bonds, municipal bonds, fiduciary bonds, war bonds. A bond may be an instrument or the name for a type of covenant between persons. Love is not just a bond but something within a bond, if we believe the Countess in Shakespeare’s All’s Well That Ends Well.

In light of this rich multiplicity of meaning, the referent for the isolated term bond is not immediately clear but, instead, contextual. Serviceable explanations for bond depend upon the situation in which it is employed and the circumstances with which it is surrounded. The diverse meanings for bond have in common a reciprocal obligation or indebtedness that is voluntarily undertaken: a bond, whatever else it does, secures a promise or duty.

Sometimes that promise or duty is implicit, as with romantic bonds between monogamous lovers. The term bond is thus pregnant with possibility, yielding manifold associations. “The word itself,” submits Frederick Turner, “contains a fascinating amalgam of positive and negative connotations.”

My essay “A Time for Bonding: Commerce, Love, and Law in The Merchant of Venice,” which may be downloaded at this link, considers the role of bonds and bonding in William Shakespeare’s The Merchant of Venice to undermine the notion that Shakespeare was, to employ a term by Ian Ward, “anti-market” in the play. The Merchant of Venice is instead as multifaceted and polysemous as the term bond and open to an array of interpretations favorable to commerce and business. This essay is part of this collection of essays edited by Edward W. Younkins titled Capitalism and Commerce in Imaginative Literature (2016).

“Illegal Litigation”: Excerpt from “I am the Raleigh,” by F. L. Light

In Arts & Letters, Britain, British Literature, Creative Writing, History, Humanities, Poetry, Writing on March 2, 2016 at 8:45 am

Fred Light

A Shakespearean proficiency in meter and rhetoric may to F L Light be ascribed. Nearly forty of his dramas are now available on Amazon, and twenty have been produced for Audible. His Gouldium is a series of twenty four dramas on the life and times of Jay Gould which he followed with six plays on Henry Clay Frick. The whole first book of his translation of The Iliad was published serially in Sonnetto Poesia. He has also appeared in Classical Outlook and The Raintown Review. Most of his thirty five books of couplets are on economics, such as Shakespeare Versus Keynes and Upwards to Emptiness the State Expands.

For his defense in this part of the play, Raleigh asserts that two witnesses are required for the charge of treason.

Raleigh:       The primacy in law is presence,
The testifying presence of a man
Where answers and rejoinders in a court
Proceed, procedurally set right in full
Protection of the truth. Not one but two
For treason are required. This case without
Accusers here illicit must become.
Illegal litigation the Attorney
General of England never should allow.
If no premeditated certitude
You mean in court, let my accusers come
Before me. The sheerest hearsay you assert
In court, if now unsifted inferences
Obtain without an oath, with no subscription,
Nothing demonstrable in testified
Exposure of the truth, simply enlarged
Upon a paper imputation by
A desperate man. How should unscrutinized
Reproaches credible remain unless
The Jesuit Inquisition you regard
As just? Were Cobham dead or gone abroad,
No case you’d have. But in this very house,
Winchester Castle, he abides. My lords,
Perpend how over-guessed assumptions are
Not rare in court, and lightless allegations,
Of darkling likelihood, have dazzled lawyers.
Why, Sir John Fortescue, of reverend estimation
As a Chief Justice in this realm, relates
How in his time a judge condemned a wife
At Salisbury for her husband’s death upon
Gratuitous prejudice to peasants or
On the suppositious sophistry of looks
Or likely baseness in the wife, whom one
Accuser had belied. But he that killed
Her husband was discovered after she
Was burned. The judge that had her die then told
Sir John the mordant penance of his mind
Would never pall in conscientious smart
With caustic memories. And you, Sir John
Popham, are too exultant in damnations
To regret my doom.

Popham:                   The damnedest imputations you
Deserve, far prouder to exalt prodition than
All traitors heretofore.

Raleigh:                      By fallible
Ferociousness your wisdom may default.
You’d proudly consummate your preconceptions.
And if you say the statutes I adduced
Before abide no longer in the courts,
Because religious mutability
Required removes, yet faultless equity
Remains in them, not failing reason. Now
Impartial exemplarity you lawyers find
In them, and for the common law they are
Considered sacred. Jurists never doubt
In Deuteronomy that one condemner shall
Not doom for his enormities a man,
But double attestations may suffice
Or triple for attesting treason to
A judge. There’s no dissentient scripture, old
Or new, thereon. Thus by the law of God
No men are immaterial nullities
In court. Untenable disgrace they need
Not suffer from one man.

Popham:                         Sir Walter Raleigh,
No statute you adduced can aid you now.
Those of Edward the Sixth no longer hold,
Too inconvenient for convictions, all
Repealed by Philip and Mary when their fires
Began. As the Chief Justice of this realm,
I know the common law’s commensurate
Extents to measure treason. Here in court
One requisite assertion that attests
To treason is enough. And, should one
Accomplice carry allegations how
The others were conjoined, that proof will hold.
But he that blames himself before he blames
Another cannot be denied in court,
For mouthed authority demonstrable.

Warburton: I muse, Sir Walter, measurably considerate
As you are, how you stretch yourself to stress
This point, for horse-thieves never could be judged
Thereby, requiring witnesses. By law
Upon deduced presumption we condemn
The guilty or on circumstantial presence
Or incidental revelation we
May judge events. Should regicidal gore
Not prove a swordsman guilty who had been
In covert presence with a king? He’d be
Too sanguinary for misjudgment, Sir.
No inquisition requisite therefore!

Raleigh: Yet by the common law, my lord, all trials
Of fact by juries and witnesses proceed.

Popham: No, sir, examination satisfies
The common law. Where traitors have confessed,
Redundant witnesses might not in court
Condemnatory tales unfold.

Raleigh:                                As you
Conceive the law therewith, I cannot grasp
The incongruity unknown to me.

Popham: Nay, Sir, the law is not conceived by us
But known in full.

Raleigh:                My lord, so how so laws
Suffice in process, here I suffer life
Or death thereby. Not with insufferable
Exorbitance should English rigor be
Enforced. At his asserted coronation
King James to nurture equity in England
And not fixed rigor force has sworn. And as
Benignant furtherance he would effect
In law, so should his ministers and judges no
Less happy prove.

Popham:               Procedural monarchy
Provides you equity. But our judicial course
Will be confined to justice.

Balance and Imbalance in E.M. Forster’s A Passage to India

In Arts & Letters, Books, Britain, British Literature, E.M. Forster, Eastern Civilizaton, Fiction, History, Humanities, Jurisprudence, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Modernism, Western Civilization on November 11, 2015 at 8:45 am

Allen 2

E.M. Forster’s A Passage to India is in many ways about losing balance. Characters like Turton, Fielding, and Mrs. Moore represent centers of gravity, fixed between competing tensions and antagonistic binaries: reason and emotion, Indian and British, human and animal.

Situated between the nested oppositions, Turton, Fielding and Mrs. Moore denote compromised identity, the reconcilability of two cultures; as middle-markers they refuse rigid categorization and maintain symmetry in power relations. Instead of opening channels of communication and understanding, however, their mediating presence has tragic results: Turton goes crazy, Fielding loses hope and Mrs. Moore dies. These characters are necessary as fulcra; but when they align themselves with one binary or leave India altogether, they trouble the balance and stability of society writ large.

In a strictly separatist microcosm, they occupy the geometric center. When their positions shift, equilibrium breaks down: society becomes a mass of madness. The only go-between characters in the novel are English, suggesting that the story is a mirror held up to placate white guilt.

The demise of these characters in particular, and of Anglo-Indian relations generally, turns on the overarching, structural antinomy between reason and emotion that comes to a head during the abortive kangaroo trial. An interrogation of this antinomy and its collapse into muddledom reveals how law and justice in Chandrapore bear a systematic and determinative relation to race and gender.

The above text is adapted from an excerpt of my essay “‘Mass of Madness’: Jurisprudence in E.M. Forster’s A Passage to India,” published in Modernist Cultures, Vol. 6, No. 2 (2011). To view the full essay, you may download it here at SSRN or visit the website of Modernist Cultures.

Red Birds at Law Building, A Poem by Jason Morgan

In Arts & Letters, Creative Writing, Humanities, Poetry, Writing on October 15, 2014 at 8:45 am

Jason Morgan is a New Orleans native and grew up mostly in Louisiana and Tennessee. He attended the University of Tennessee-Chattanooga (BA, History and International Studies) and the University of Hawai’i-Manoa (MA, Asian Studies: China focus), and is now ABD at the University of Wisconsin-Madison (Japanese history). He has attended or conducted research at Nagoya University of Foreign Studies, Nagoya University, Yunnan University in Kunming, PRC, and the University of Texas-San Antonio. He’s currently on a Fulbright grant researching Japanese legal history at Waseda University in Tokyo. His topics include case law during the Taishou Period, and the broad contexualization of the Tokyo War Crimes Trial.  His scholarly work has appeared, or is scheduled to appear, in Modern Age (on American labor history), Japan Review (two reviews of Japanese history monographs), Education About Asia (two reviews of Japanese history textbooks), Human Life Review (on Griswold v. Connecticut; review of book on Catholics and abortion), Metamorphoses (translation of Tanizaki Jun’ichirou’s Randa no Setsu), Southeast Review of Asian Studies (on Japanese translation work), and in book form (two translations of Mizoguchi Yuuzou on Chinese intellectual history; translation of Ono Keishi on Japanese military financing in WWI and during the Siberian Intervention). He has also written for the College Fix and College Insurrection.

Red Birds at Law Building

It is astonishing that we
live in the same world, yet in two
I see the same things that they see,
do (almost) everything they do

but they sit on a sill and sing
outside today’s exam in law:
these are two very different things,
two very different kinds of awe

Lines to Holmes

In America, Arts & Letters, Creative Writing, Humanities, Jurisprudence, Law, Law-and-Literature, Literature, Oliver Wendell Holmes Jr., Poetry, Writing on May 14, 2014 at 8:45 am

Allen 2

Lines to Holmes

A canon of rules and principles,

embodied in individual cases,

aggregated by judges

from different courts

and with different ranks,

makes up the common law system.

Perhaps the better way to put it

is that the common law is a canon

unto itself.

Rules and principles

that regulate people

are always engaged in a struggle for existence,

always subject to challenge and subversion

by the trends and movements of culture.

Tested by their ability

to obtain to society

and to yield constructive results,

they compete with one another

and become canonized

only if they prove

fit to survive the test of time,

the onslaught of new technologies,

which necessitate new approaches

to lawyering.

This is the law of the law

today as always.

What Crisis? Law as the Marriage of Science and the Humanities

In Academia, Arts & Letters, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, News and Current Events, Oliver Wendell Holmes Jr., Philosophy, Scholarship, The Academy on March 12, 2014 at 8:45 am

Allen 2

This week the Association for the Study of Law, Culture & the Humanities convened to consider this question: “How will law and humanities scholarship fare against the pressure of the science and technology paradigm that has now permeated the institutional frameworks of academia?”  The question implies an adversarial relationship between science and the humanities, or law-and-humanities.  The division between science and the humanities as academic disciplines, however, is not yet 150 years old; it is misguided to pit “law-and-humanities” (a signifier that did not exist a few decades ago) against the “science and technology paradigm that has now permeated the institutional frameworks of academia” (another quotation from the conference program).  We do not have to go back to Plato or Aristotle or Galileo or Descartes or Spinoza or Da Vinci or Locke or Hume or Rousseau or Kant or Newton or Adam Smith or Benjamin Franklin or Thomas Jefferson or Thoreau to see that what we call the humanities has not, traditionally, been divorced from the sciences—that, in fact, the humanities and the sciences are mutually illuminating, not mutually exclusive.

In America, more recently, the classical pragmatists—in particular C.S. Peirce and William James—sought to make philosophy more scientific, and in this endeavor they were mimicking the logical positivists in Britain.  Some of the most famous minds of the 20th century worked at the intersection of the humanities and science: Freud, Einstein, Michael Polanyi, Karl Popper, Jacques Lacan, F. A. Hayek, and Noam Chomsky, to name a few.  Lately we have seen scientific thinkers as wide-ranging as Steven Pinker, E. O. Wilson, Jared Diamond, and Leon Kass celebrate or draw from the humanities.

A review of the conference abstracts suggests that most presenters will be considering this question from the political left, but their concerns are shared by many on the right, such as Roger Scruton, who recently took to the pages of The New Atlantis to address this topic in his article “Scientism in the Arts and Humanities.”  Nevertheless, forcing the separation of science and the humanities does not strike me as prudent.

By encouraging the humanities to recognize its scientific heritage and to recover its scientific methodologies, the academy would be correcting decades of wandering.  Science is indispensable to the humanities, and vice versa; the two work in concert.  The findings in one influence the findings in the other.  Evidence of this reciprocity in the context of legal studies is especially striking in America during the late 19th and early 20th century, when the law often was associated with scientific disciplines rather than with the humanities.  At this time, the theories of Charles Darwin and his progeny helped to explain the common law tradition while influencing the way that law was taught in law schools and examined by judges and most notably by Oliver Wendell Holmes, Jr.

The scientific paradigms in vogue among legal thinkers at the turn of that century were neither uniform nor monolithic.  For instance, Christopher Columbus Langdell’s push to make legal education more scientific was different from Holmes’s use of Darwinism to describe the common law.  Rather than teasing out the distinctions between various scientific approaches to the law during the late 19th and early 20th century America, however, I would look at these scientific approaches as part of the same general project and as a reminder of how the humanities and the sciences can participate to bring about theoretical and practical insights.  It might be that, of all disciplines, law is the most revealing of the participatory nature of science and the humanities and, therefore, provides the best justification for instrumental and scientific approaches to humane studies.

There are groups within the humanities that resent the scientific disciplines for the funding and privilege those disciplines enjoy in the academic marketplace, but at least part of this resentment is misplaced.  The fault lies partially with the scientists who mistake merit for value: it is not that the sciences enjoy more funding and privilege because they have more merit—the academy is not a meritocracy—but it is that they have more value to consumers and the public writ large.  It may well be that the humanities have more merit, but unless consumers begin to value merit, the meritorious will not necessarily prevail in the market.  

Shakespeare and the Law

In Arts & Letters, History, Humanities, Law, Law-and-Literature, Legal Education & Pedagogy, Literary Theory & Criticism, Literature, Pedagogy, Shakespeare, Western Civilization on January 30, 2014 at 8:45 am


Below is footage of a panel discussion between Justice Stephen Breyer, Professor Martha Nussbaum, Judge Richard Posner, and Professor Richard Strier that took place at the University of Chicago in 2009.  The subject of the discussion is “Shakespeare and the Law,” and the purpose of the panel was to counteract what was perceived as growing complacency and unoriginality in the law-and-literature movement.  That these four figures are on the same panel is reason enough to watch the video.

A Reminder from Augustine: Sin and the Law

In Arts & Letters, Books, Christianity, Humanities, Jurisprudence, Justice, Law, Philosophy, Western Philosophy on November 29, 2013 at 8:45 am

Allen 2

We do well to remember the consequences visited upon Augustine when, as a teenager, he succumbed to sin and shook a person’s pear tree in order to steal the fallen pears—not because he was hungry or in need, but because he delighted in the sin.  “To shake and rob,” he said, “some of us wanton young fellows went, late one night (having, according to our disgraceful habit, prolonged our games in the streets until then), and carried away great loads, not to eat ourselves, but to fling to the very swine, having only eaten some of them; and to do this pleased us all the more because it was not permitted.”[1]

The mature Augustine, looking back on this event, acknowledged that theft violates and is punished by law—not just human law, he adds, pursuant to the teachings of Jesus, but the law written on men’s hearts.  He relates that he suffered (and suffers) from shame and regret as a result of this sin, and his shame or regret is punishment that humans cannot implement ourselves; it is punishment that we must rely on God to summon forth in our hearts and minds.  “It is foul,” Augustine says of his sin, adding, “I hate to reflect on it.  I hate to look on it.”[2]  One wonders whether human punishment based on human law can ever have the same long-lasting effect as divine punishment for violating the law written on human hearts.

Augustine does suggest that there is a law of man and a law of God and that he violated both; the consequences for violating man’s law would have been different from the consequences of violating God’s law, especially insofar as his punishment may not be of this world, although the Christian believer in the triune God must acknowledge that God’s sovereignty and sovereign law precede and have jurisdiction over all men’s actions, for God does not let anything come to pass that he does not know about or have control over.

[1] St. Augustine, The Confessions of St. Augustine, edited by J. G. Pilkington (New York: Horace Liveright, 1927), p. 33.

[2] St. Augustine, The Confessions of St. Augustine, edited by J. G. Pilkington (New York: Horace Liveright, 1927), p. 40.

“Constructing a Canon of Law-Related Poetry,” by Alexandra J. Roberts

In Arts & Letters, Creative Writing, Humanities, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Poetry, Writing on November 15, 2013 at 8:45 am

Alexandra J. Roberts has published “Constructing a Canon of Law-Related Poetry” in the Texas Law Review (Vol. 90).  Her abstract reads as follows:

Law and poetry make a potent, if surprising, pair.  Poetry thrives on simultaneity and open-endedness, while legal writing aspires to resolve issues decisively, whether it advocates or adjudges.  The law and literature movement has traditionally focused either on law as literature, applying literary theory and techniques to legal texts such as judicial opinions and legislation, or law in literature, i.e., law as portrayed in literary and artistic works.  Poetry and poetics have garnered relatively little attention under either approach.  While some scholars blame that omission on a supposed dearth of law-related poetry, the poems collected in Kader and Stanford’s Poetry of the Law: From Chaucer to the Present belie that claim.  This essay considers the place of poetry in legal studies and advocates incorporating it into both the dialogue and the curriculum of the law and literature movement.  It identifies themes that emerge from the juxtaposition of the poems in the anthology, examines the relationship of fixed-verse forms to law in the poems, and draws attention to those voices that are underrepresented in the collection and the movement.  It relies primarily on the process of close reading several of the hundred poems included in Poetry of the Law and, in so doing, it practices law in literature while it models precisely the type of critical approach that would serve those participating in the study of law as literature.  It prescribes a canon of law-related poetry and illustrates how the inclusion of poems and techniques of poetic interpretation stand to benefit students, lawyers, and theorists alike.

The paper may be downloaded here at the Texas Law Review website or here at SSRN.

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