The trial scene in Shakespeare’s play The Merchant of Venice can be used to explore some current issues concerning the rules of natural justice and claims to special rights and privileges. In contemporary times, when the “identity” of a complainant or an alleged victim seems to be increasingly important, there is much to ponder in the fate of Shylock, the notorious Venetian money-lender at the centre of the trial scene, who looked to the law to enforce a contractual penalty—the yielding up of a pound of flesh—but was eventually subjected to a draconian penalty himself: an unexpected outcome and a useful reminder of some enduring questions about the workings of the law.
Should legal rules be strictly enforced or should there always be room for equity or moderation? What is justice and to what extent, if any, must allowance be made for mercy, a quality in which Shylock, as a Jew, was supposedly deficient? In this case, who was the victim in the end—the debtor who faced death if his bond was enforced, or the Jewish creditor who was brought down in due course by a dodgy trial process and a law against aliens? Or were the ultimate victims those members of the general public whose livelihoods might well be affected if it became known that the trial was tainted by corruption?
This essay appeared in December’s Quadrant.
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I will return to some general issues of this kind, but first let me set out certain features of the plot bearing upon the trial scene in question. As in most trials, the prospects of the parties shift in the course of the proceedings and this brings with it a continuing need for reassessment of liability and degrees of guilt, before and after the verdict, especially in a play where no allowance is made for appeal.
Antonio, a Venetian merchant, has well-laden ships at sea but in the meantime he needs money to help his friend Bassanio woo the heiress Portia. He borrows money from Shylock, a Jewish money-lender, who has been treated harshly by Antonio and his compatriots on other occasions and harbours deep-rooted (but carefully concealed) resentments accordingly.
In what is described by Shylock as a piece of “merry sport”, something not to be taken too seriously, the loan agreement, in lieu of interest, includes a grisly penalty—if Antonio fails to repay the loan on time, Shylock is entitled to cut out a pound of flesh “in what part of your body pleaseth me”.
Antonio’s ships don’t come in on time and the repayment date passes. Spurning repayment several times over, Shylock sues for specific performance. He wants his pound of flesh. He brings his case before a court constituted by the Duke of Venice.
The Duke voices an unfavourable opinion of the Jewish money-lender as a man incapable of pity, but then reveals that he has sent for Bellario, a learned lawyer in Padua, to “determine” the dispute. In the meantime, Portia has decided to assist her husband’s friend by disguising herself as a distinguished Doctor of Laws. She presents the Duke with a letter of commendation from Bellario and in that way, pursuant to what is in effect a delegation (or perhaps a gradual usurpation) of the Duke’s judicial power, she becomes the presiding judge. She is certainly treated as such by the parties.
Early on, when Shylock insists, again and again, that “I’ll have my bond”, Antonio seems to accept that strict compliance with the agreement cannot be denied “for the commodity that strangers have with us in Venice, if it be denied, will much impeach the justice of the state” and “the trade and profit of the city”. In other words, in the language of our own era, the parties recognise the problem of sovereign risk. Foreign investment in Venice will be threatened if its courts are seen to be unpredictable or partial.
Portia, in her role as putative judge, seeks to moderate a literal reading of the contract by urging the Jewish money-lender to be merciful, for the quality of mercy “droppeth as the gentle rain from heaven” and “blesses him that gives, and him that takes”.
Shylock is unmoved by her eloquent plea. He will have his bond. And even Portia seems to accept that for the sake of commercial certainty, and to avert sovereign risk, contracts must be strictly enforced. She notes, reluctantly, that if an established decree be altered it will be “recorded for a precedent, and many an error by the same example will rush into the state”. She then concludes that Shylock is entitled to enforce the bond. She says: “The law allows it and the court awards it.”
This early tilt towards Shylock lulls him into a false sense of security. “Most rightful judge!” he exclaims. But this exclamation simply sets the scene for the dramatic reversal that follows. “Tarry a little,” Portia says to Shylock. “There is something else. The law hath yet another hold on you.”
The imposter judge then embarks upon a piece of sophistry that leads to Antonio’s release from the bond. He is excused because the money-lender is not entitled to shed any blood in enforcing the bond.
To hold, as Portia does, that Shylock may take a pound of flesh but no blood is patently absurd, for the bond must have implicitly authorised what was necessary for Shylock to get his pound of flesh. Moreover, Portia’s legalistic and hyper-technical “flesh-but-no-blood” construction of the contract is probably unnecessary because there are alternative rationales for denying Shylock’s suit.
She could have questioned whether the bond was binding in the first place because it seems that Antonio was induced to sign it pursuant to a misrepresentation that it was simply a “merry sport”. Alternatively, she could have relied upon the various offers of repayment which were spurned by Shylock because offers of this kind will usually be sufficient to justify relief against forfeiture or to avert the risk of specific performance. She could have relied upon public policy that weighs against the enforcement of draconian penalties. It might even be said that this was the true basis of her decision in favour of Antonio to set aside the bond.
But now, having been denied enforcement of his bond, worse was to follow for Shylock. Portia, the imposter judge, invokes a notorious aliens statute; that is, if it be proved against an alien that he seeks the life of any citizen “the party against which he doth contrive shall seize one half of his goods, the other half comes to the privy coffers of the state, and the offender’s life lies in the mercy of the Duke”. Shylock is then virtually compelled by the masquerading trial judge to convert to Christianity or die.
Portia wraps up the proceedings by ordering the clerk to draw up a deed of gift. Shylock, soon to be deprived of his means of livelihood and all his assets, crushed by what has happened—the legal proceedings that seemed to start so well—finishes up in what seems to be a state of forlorn bewilderment. “I pray you,” he says, “give me leave to go from hence; I am not well, send the deed after me, and I will sign it.”
That is the last the audience will see or hear of Shylock. Some loose ends are then tied up as the play draws to a close. Still in disguise, but in a playful mood, Portia tests the loyalty of her husband by some toing and froing over the whereabouts of her husband’s wedding ring. When she resumes her true identity the loving couple are reunited: whereupon the husband’s friend, Antonio, seals the happy ending with these words: “Sweet lady, you have given me life and liberty, for here I read for certain that my ships are safely come to road.”
The sense of goodwill all round that accompanies the final curtain, and Portia’s eloquence in describing the “quality of mercy” in the course of the trial scene, undoubtedly leaves a favourable impression of the fair lady in question. For many playgoers she arguably personifies the spirit of equity and humane resourcefulness.
In other words, by a skilful disguise and related stratagems, she rescues her husband’s friend Antonio from the clutches of the merciless Jewish money-lender. Her speeches in court seem to reflect a sensible recognition that strict rules of law, however necessary to stabilise commercial transactions and underpin a well-ordered society, must be applied with tact and sensitivity so that the equitable spirit of the law is not sacrificed unnecessarily to the strict letter.
Her stance seems to recognise that the evolution of a legal system is often and perhaps typically from strict and simple rules to more flexible standards. Her actions may also convey to the more discerning eyes of experienced or even would-be advocates that, in the end, succinct points of interpretation may prove to be more effective in securing a desired outcome than lofty (and possibly sentimental) rhetoric about abstract concepts such as mercy.
Nonetheless, before proceeding too far down this track, the path of uncritical admiration, let us return to Shylock’s ignominious departure from the court, the scene in which he slinks off to await arrival of the deed he is now obliged to sign. As often happens with losing parties, the initial mood of bewildered disappointment may begin to fester and soon turn into an acute sense of injustice, especially on the facts set before us in this play.
When the verdict is reduced to its simplest form, it amounts to this: no pound of flesh, no repayment of the amount borrowed by Antonio, but on the contrary, forfeiture of Shylock’s property, and his forced conversion to the Christian faith.
In other words, after what seemed to Shylock to be a promising start to the trial, his case for strict enforcement of the bond is shoved aside by what is arguably a piece of unconvincing sophistry—Portia’s “flesh-but-no-blood” ruling. Worse, Shylock is then, in effect, suddenly convicted of an offence confined to aliens, of which he was given no prior warning and no real opportunity to answer the charge. He is forced to abandon his fundamental beliefs in order to avert the risk of execution. All of this has been brought about by a woman without any legal training who is not only fraudulently posing as a judge but has a clear conflict of interest because she is so friendly to one of the parties that she is determined to do whatever it takes to rescue him.
It would almost certainly be thought by a litigant in Shylock’s position, as he reviews the trial with the benefit of hindsight, that the entire proceedings, and indeed the communal values reflected in the process, were heavily weighted against him from the outset. The word Jew is constantly used as an epithet and the supposed superiority of the Christian faith is arguably implicit in the outcome, for he is forced to abandon his beliefs. So, upon further reflection, who was the victim in the circumstances presented to the audience? Who was the victim in the end?
Works of literature can act as useful pointers to important features of the legal system. For centuries the traditional symbol of justice has been a blindfolded woman holding in one hand a balance scale and in the other a sword. Justice wears a blindfold, we are usually told, so she cannot show favouritism or yield to bias or prejudice. Thus, if justice does not see the parties before her, then in weighing the evidence she cannot prefer the strong over the weak, friends over enemies, rich over poor, neighbours over strangers, one sex over another.
In theory, the law is supposed to treat all equally, without fear or favour, and the blindfold on the symbol of justice is designed to help ensure such equal treatment. Shylock presumed that his case was being evaluated by a judge of that description. Along the way, he refers to the youthful but apparently learned Doctor of Laws before him—Portia in disguise—as “a worthy judge”, “a rightful judge” and “a well-deserving pillar of the law”. To understand the feelings that are bound to have tormented him when the crushing verdict was handed down, depriving him of his goods and even his deepest beliefs, one must begin by taking a closer look at what is meant by the sense of injustice.
What usually passes for injustice is an act or verdict that goes against some known or legal or ethical rule. On that view of the matter only a victim whose position doesn’t match the rule-governed prohibition can be said to have suffered an injustice. On the other hand, if the rule fits the facts, then any complaint about the outcome of the case can probably be characterised as the victim’s subjective reaction: a misfortune perhaps, but not an injustice.
If a properly constituted but overly legalistic court had ruled in favour of strict compliance with the bond, thus putting Antonio’s life at risk, a sense of injustice particular to him and his supporters would surely be valid. As I have indicated, apart from Portia’s specious “flesh-but-no-blood” argument, there were various persuasive grounds in law and equity, for holding that the bond should not be enforced—it was induced by a misrepresentation, rules of specific performance and public policy negate the infliction of a draconian penalty, especially where offers of full payment have been made.
Likewise, Shylock’s presumed sense of injustice would surely be validated in circumstances where various rules of natural justice were infringed. He was given no forewarning of the charge brought against him and the issue was determined by an untrained and biased judge.
The model of injustice I have just described has been the commonly accepted one; that is, the usual rules have not been complied with and a party has suffered loss. But the apparent lack of justice being done because the rule doesn’t fit will not necessarily cover all cases in which a sense of injustice arises.
A person who is the victim not so much of a broken rule but of disappointed expectations or reprehensible conduct, in circumstances where communal values would ordinarily point to a more acceptable outcome, may also harbour a sense of injustice. In a vibrant democracy grievances of this kind will increasingly be voiced as certain sections of the public contend that what are arguably legitimate claims have been overlooked. It then becomes far more difficult to identify those who are properly characterised as victims, people to whom remedies should be granted, and those who have simply experienced misfortune.
On the facts of the Venetian trial supposedly before us, and if the more obvious breaches of particular rules mentioned earlier are removed from the equation, would it have been open to Antonio to claim it was unjust to have his life put at risk because of some facetious repartee at the time the contract was made which left him thinking that the special bond was just “a merry sport”? Would it be open to Shylock, apart from all else, to complain of Portia’s rank hypocrisy when she exhorted him to be merciful but proved to be unmerciful herself when the balance tilted against him?
In both of these scenarios the disappointed expectations of the claimant would not be based on the breach of a legal rule but on a belief that people should act with decency. If communal standards cease to reflect the notion of decency, due to widespread corruption or a blind pursuit of self-interest, will trade and commerce begin to suffer? One may also ask, as I did at the outset, whether, in the circumstances depicted in the play, the Venetian community as a whole was the real victim of the trial process, a dodgy hearing corrupted by the presence of an untrained and biased judge? Who would do business in such a place if these flaws in the process became widely known?
There is arguably another question to be addressed, a matter which gives the play a particular contemporary relevance in an Australian setting. We are living in what the art critic Robert Hughes once called “a culture of complaint”. It is becoming increasingly common for complainants to seek relief in the courts or through the media on the basis that they are victims of discriminatory conduct. The events complained of might not amount to a crime but the person affected might be left with a sense of injustice if nothing can be done about it. Section 18C of the Racial Discrimination Act, for example, provides for relief where a person feels offended by a discriminatory or hostile act referable to race or ethnic origin. Provisions of this kind point to a need to look carefully at what can be said to constitute an injustice in contemporary times. They point also to some other questions.
Should Shakespeare’s play The Merchant of Venice, which has been performed in public for several centuries, continue to be performed? It might be characterised by some members of a contemporary audience as a play reeking of prejudice against Shylock’s race and Jewish origin. They may claim to be offended or insulted by what is said and done to Shylock. Section 18C of the Racial Discrimination Act, which seeks to prohibit questionable conduct, could be a vehicle for such a claim.
One likes to think that such a claim would be unenforceable. In this, as in so many of his plays, Shakespeare is dramatising a wide variety of human traits and thereby casting light on universal themes. He does so without necessarily pursuing a particular cause or point of view, for his knowledge of human nature seems boundless and his intention benign. One is simply left with a variety of viewpoints and much to ponder. The play forces the audience to think about the workings of the legal system and the way trials should be conducted. For that very reason, like many other works of literature, it will be of use to would-be lawyers and legal practitioners alike as they dwell upon the nature of human rights and what underlies the sense of injustice. If that be so, how could one think of banning such a play?
With these thoughts in mind I must note in passing that the prohibition against offensive or insulting speech in section 18C of the Racial Discrimination Act is presently qualified by section 18D, which provides an exemption in respect of artistic works, a proviso which may well be sufficient to protect producers of The Merchant of Venice. It seems obvious to many jurists, however, that freedom of thought, and the right to talk freely about the issues thrown up by a play of this kind, would be better served by a decisive abolition of the prohibition contained in section 18C because it limits freedom of speech.
For the time being, let me simply assert that trial scenes have often found their way into literature as a backdrop against which human beings wrestle with a vast array of moral, psychological and political issues including the question of what arouses the sense of injustice. A trial scene, as in The Merchant of Venice, can dramatise such issues in a way that renders them memorable.
This brings me to the question of whether it is appropriate to critique a trial process established in earlier times by giving weight to rules of natural justice applicable today. Improved procedural rules would probably have altered the outcome. On the other hand, however, Shakespeare’s rhetoric suggests that it will always be difficult to counter underlying attitudes that favour a desired result. Can a disciplinary tribunal on a university campus that condones the banning or abuse of scholars from Israel, for example, be trusted to deal fairly with a party to the proceedings of Jewish descent? In the event of an appeal, can one safely assume in contemporary times that a court will stick to applying settled law to established facts and not be distracted by debate about the status of a Jewish nation in the Middle East?
These are significant questions. Many lawyers in Australia, and even some judges, with fixed views about the past, especially as to matters of Aboriginal dispossession, have been increasingly inclined in recent years to look for facts, or what are said to be flaws in official practices, that confirm beliefs they have already formed. They read the past backwards from the present, excluding matters that may prove inconvenient, such as the scarcity of resources in earlier times or a felt need to take remedial action in cases of neglect.
In Mabo, for example, it is not entirely surprising that Justices Deane and Gaudron struck an apologetic note in characterising their “unusually emotive language” as necessary to override certain long-standing rules of real property that might otherwise have been treated as decisive. They seemed to acknowledge that they were about to push beyond the pale in order to achieve what seemed to them to be an enlightened outcome. How do tendencies of this kind bear upon the need for judicial impartiality?
These ruminations bring me back to my opening remarks. Shakespearean plays and other memorable works of literature can be used to cast light on the law in action and the meaning of justice. They can provide an extra dimension to what is taught.
Would-be lawyers go to law school not so much to acquire knowledge that seems relevant to resolving legal issues, but for certain skills—for the habit of attention, for the lawyer’s way of entering quickly into another person’s thoughts, for the art of expression, for the capacity to say what clients can’t say for themselves, for the technique of indicating assent or dissent in graduated terms and for the ability to work out what is possible within a given time. Weight must also be given to the need for moral courage and compassion as appears in what Portia put to Shylock about the legalistic stance that led to his downfall: “Though justice be thy plea, consider this. That, in the course of justice, none of us should see salvation: we do pray for mercy.”
It follows from these observations that would-be lawyers must be reminded by their teachers from time to time that the intuition of an artist can be of use in practising law. With that in mind, let me close by recalling what was put to Shylock’s daughter by her lover in the final act of The Merchant of Venice:
The man that hath no music in himself,
Nor is not moved with concord of sweet sounds,
Is fit for treasons, stratagems and spoils;
The motions of his spirit are dull as night …
Astute lawyers will not only be attuned to the needs of their clients but also to the underlying realities of the matter in hand. They must know how to read between the lines and respond to the sounds of hidden music until, in Portia’s words, “The crow doth sing as sweetly as the lark.”
This is an edited version of a paper presented to the Australasian Law Teachers Annual Conference in July. Nicholas Hasluck’s latest book of essays is Jigsaw: Patterns in Law and Literature (Australian Scholarly Publishing, 2018). He was greatly assisted in writing this paper by the following works: Kill All the Lawyers? Shakespeare’s Legal Appeal, Daniel J. Kornstein (1994); Something Else: More Shakespeare and the Law, Daniel J. Kornstein (2012); The Faces of Justice, Judith N. Shklar (1990); “The Merchant of Venice and the Trade Practices Act” from Excursions in the Law, Peter Heerey (2014).