Shakespeare and the law
By Jacob A. Stein
March 2, 2011
A Thousand Times More Fair What Shakespeare’s Plays Teach Us About Justice, by Kenji Yoshino, Ecco, 320 pp., $26.99
Lawyers are obsessed with Shakespeare. We even put on amateur Shakespeare plays to give vent to our belief that we both perform in the courtroom and are good on stage.
When the phone does not ring, there is nothing more cultured for a lawyer to do than to write a book about the Shakespeare plays, filled, as they are, with lawyer talk. Within that compulsion is the question of how someone like Shakespeare (a glover’s son) became learned in law.
I have in hand a book written in 1883 by a local lawyer. The author draws the induction that no one but a lawyer, or someone who worked with a lawyer, could have picked up so much abracadabra legal terminology. He selected 600 legal terms to make his point.
The candidate often thought to be Shakespeare’s man behind the screen is Francis Bacon (1561–1626). A contemporary of Shakespeare, he was an English judge and lord chancellor. He wrote much more in his lifetime than Shakespeare ever did. As it happens, Bacon’s legal career ended in disgrace. While on the bench, he accepted gifts from the litigants who appeared before him. Nevertheless, in those days if I’d needed a lawyer to write a cunning business contract, I’d have called on Bacon. But if I’d been in real trouble, he’d have been too cold, so I’d have called on Shakespeare, LLP, the playwright whose words could persuade a jury to return a just verdict.
Kenji Yoshino, a law professor at NYU and a respected attorney with the Shakespeare obsession, has written a clever book about the playwright called A Thousand Times More Fair: What Shakespeare’s Plays Teach Us About Justice. The title is taken from Portia’s speech in The Merchant of Venice. The word justice has many definitions; Yoshino uses over a dozen Shakespeare plays to demonstrate the playwright’s virtuosity in using the word.
The Bard invokes Portia to show how lawyers behave and misbehave, as well as how justice prevails. Portia is a resourceful and cunning courtroom manipulator. But those who are her judges, whatever their bias and prejudice, are not fooled. Justice wins the day. Antonio warns against any corruption that would stain Venice’s reputation for justice, offering a practical rather than a moral argument:
For the commodity that strangers have
With us in Venice, if it be denied,
Will much impeach the justice of the state,
Since that the trade and profit of the city
Consisteth of all nations.
In Measure for Measure, Shakespeare demonstrates that justice is meant for all, not for a few. Yoshino quotes Supreme Court Justice Stephen G. Breyer to make the point. At a conference titled Shakespeare and the Law, Breyer points out that when the Court rules, it speaks to both the rich and the poor alike, all 298 million Americans who are affected by the justice of the high court’s rulings.
I hope Yoshino, in a future edition of his book, might include Francis Biddle (1886–1968). A federal judge and the attorney general of the United States (a career something like Bacon’s), he titled his autobiography In Brief Authority, words borrowed from Measure for Measure. Anyone in brief authority must occasionally reflect on his own demeanor:
But man, proud man,
Drest in a little brief authority,
Most ignorant of what he’s most assur’d
His glassy essence, like an angry ape,
Plays such fantastic tricks before high heaven
Yoshino uses Othello to advise us on the rules of evidence that are needed if there is to be justice. In doing so, he cautions us by quoting the famous British jurist William Blackstone: “For every case that turned on an issue of law, over a hundred turned on an issue of fact. To live in such a world—as we always have and will—means justice will be driven by those who determine what happened. Law calls such personages ‘factfinders.’” Othello distorts the facts and therefore corrupts the search for truth and justice. He sees things through the lens of suspicion and paranoia, as we all do in the grip of jealousy.
Yoshino ends his book with The Tempest. It is Shakespeare’s sunset play, and he discards cause and effect to temper justice, when justice would be too harsh. Yes, we may say we want justice, but in fact what we really want is compassion because, as Shakespeare says, we are such stuff as dreams are made on, not robots drawing logical conclusions. I have tried over and over to memorize these lines:
Our revels now are ended. These our actors
As I foretold you, were all spirits and
Are melted into air, into thin air;
And—like the baseless fabric of this vision—
The cloud-capped towers, the gorgeous palaces,
The solemn temples, the great globe itself,
Yea, all which it inherit, shall dissolve,
And like this insubstantial pageant faded,
Leave not a rack behind. We are such stuff
As dreams are made on, and our little life
Is rounded with a sleep.
I must go. The phone is ringing.
Jacob A. Stein is a lawyer in Washington, D.C.
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