[In the following essay, Weisberg appraises the legalistic elements of The Merchant of Venice, and finds “non-ironic” interpretations of the play's opposition between Christian mercy and rigid Judaic law to be reductive and misleading.]

INTRODUCTION

The law and literature movement now involves hundreds of scholars across the disciplines.¹ Among the movement's contributions to scholarship and teaching in literature has been its attention to several well-worked “legalistic” stories. Particular success has been achieved in the debates about Melville's Billy Budd, Sailor, where an established critical perspective on Captain Vere has been challenged by recourse to legal materials and closer readings of the story's legalistic passages.²

In recent years, a similar methodology has been applied to The Merchant of Venice.³ Abjuring the mainstream critical insistence on “non-ironic” readings of what is clearly one of Shakespeare's most complex and ironic plays, law and literature scholars have again simply noticed what the text affords in rich abundance: passages of legalistic complexity that—once engaged—reverse traditional patterns of understanding.

So, in Poethics and Other Strategies of Law and Literature (94-104), I endeavored to show that Act V's legalistic language—epitomized by Portia's rejection of Antonio's persistent intermeddling in her relationship with Bassanio—evokes Shylock and leaves the audience wondering at Belmont's new usages: “surety”; “deed of gift”; “inter'gatories.” The Jew, with his insistence on oathkeeping, bonds, and the law, must be defeated at trial, for his verbal directness contradicts Christian linguistic maneuvering as much as his excessive legality offends their notion of “mercy”; yet he seems in the final act quite to have overpowered (on the level of language) the Christian characters and their earlier rejection of him. Portia will not tolerate yet another episode of Antonio's “suretyship” for his young friend, her new husband. She prefers, and will probably enforce on Belmont as best she can, the more directly committed system of the old Jewish moneylender, who has never been able to stomach “Christian intercessors” and their flouting of the law.

On this reading, however appropriate it is to the play's comic medium, which mandates the defeat of Shylock's bond, Portia is at trial always alert to the Jew's constancy and ethics in the domain of human relations. Although she briefly becomes a fellow traveler herself along the path of Christian distortions of law—where ostensible “mercy” quickly is debased to forms of legalized cruelty unimaginable in Jewish communities—she does so merely to solve the comedy's central problem and then to move ahead as ethically as she can toward her marriage to a typical Christian whom she happens to adore. But to do this, she must reject on the island of Belmont the nagging presence of Antonio, whose main aim is, precisely, to keep Bassanio from direct commitments to others.

Debate on many of these issues ensued in a spirited exercise of interdisciplinary wit, where the likes of Lawrence Danson and Jay Halio took on some lawyers at the Association of the Bar of the City of New York in late 1992 (Proceedings). And it has spilled over into a series of readings by professional actors in which a proper emphasis has been placed on the relationship of Act IV to Act V, with their legalistic origins of course in the “contract formation” scene, I,iii.⁴

CHRISTIAN LEGALISM IN THE TRIAL SCENE

What I like to call “the turn to legalism” among Christian characters in The Merchant of Venice begins midway through the trial scene itself. Looked at this way, the prevalent critical dichotomy between some rigid Jewish “law” and some more humane Christian “mercy” breaks down on the most obvious textual level.

Portia, perhaps fascinated by Shylock's excessive yet somehow solid insistence on his bond, is committed to undoing the moneylender's extreme application of what might otherwise be a righteous and ethical reliance on written law. But she is equally repulsed by the overly flexible oathbreaking of the Christian characters, which she sees in open court before her eyes when Bassanio and Gratiano assert their willingness to sacrifice their new wives to save the beleaguered Antonio. Like the old Jew, who remarks in a striking aside (as he is supposedly hell-bent at the time for vengeance), “These be the Christian husbands,” Portia notes their willingness to compromise not only the marriage vows but tons of her own ducats, which Bassanio constantly offers the obdurate plaintiff. Later in this same Act, she will deduce that Antonio's baleful influence on Bassanio has moved the latter to give her the ring that symbolized those vows; the audience to the play will also compare that easy traducement to Shylock's ethical unwillingness to give his wife's ring away “for a wilderness of monkeys.”⁵ So Portia watches all these men in open court, and it cannot be that she wishes to adopt the easy oathbreaking of her spendthrift husband and his flighty circle of friends, nor that she comes to detest everything that Shylock represents in the domain of ethics and law.

Portia begins in court a process that carries her through to the Belmont of Act V: the emulation of Shylock's ethical system once—through her efforts—it has been drained of its excesses, which she perceives to be less legalistic than situational. She comes quickly to learn that Shylock's villainy consists in a Christian-imposed condition of ostracized resentment. Neither she nor any even-handed observer of the play as a whole needs find any necessary linkage of “legalism” to vengeance. On the contrary, she perceives the very opposite: the source of the deepest resentment and the most violent hatred derives from Christian applications to moral outsiders of a superficial and self-serving “mercy.” Although personally unaware of Antonio's cruelty to Shylock on the Rialto, Portia will have sufficiently good reason to associate with the merchant this degradation of Christian love. Once the trial and its immediate aftermath reveal his threat to her values, she moves as graciously as possible to remove Antonio from her husband's circle. But this must await the “happy resolution” of Shylock's vengeful lawsuit.

It is clear to most analysts that Portia follows Shylock's legalistic method in open court, where she reads his bond so narrowly, so literally, that it cannot be enforced on its terms. Then, reveling perhaps in her mastery of a complex situation irresolvable by men, she hauls out a statute and continues, with an excess of zeal that parallels Shylock's in a way, to defeat his cause. This “Alien Statute” gives the state the right to take the Jew's life and half his property—but the Duke instantly forgives the former and virtually returns to Shylock all but a small “fine” for the latter. Touched perhaps by the state's graciousness, she turns to the merchant, who is entitled to the other half. Portia explicitly begs Antonio to make the theoretical Christian move beyond law for which she is better known to audiences than for her contractual legalisms. She asks him to undo the legalistic persecution of the Alien Statute by reducing its effect on his enemy: “What mercy can you render him, Antonio?” (IV. i. 394)

It is here that Antonio, ostensibly the model of Christian courtesy and otherwise the voice of what I have called Christian “mediation” (Poethics) throughout the play, might be fully expected to outdo the Duke's generosity.

Instead, Antonio proceeds to fail every test of moderation, mercy, and forgiveness that Portia has imposed upon him. (She was not, of course, privy to his earlier similar failure in rejecting Shylock's offer of friendship in I. iii.) She fathoms what happens when Christian intercessors are given sway over earthly law. She hears, feelingly, the following amazing cruelties, which—in the absence of legal understanding—critics have taken as signs of Christian generosity:

So please my lord the Duke and all the court
To quit the fine for one half of his goods,
I am content, so he will let me have
The other half in use, to render it
Upon his death unto the gentleman
That lately stole his daughter,
Two things provided more: that for this favor
He presently become a Christian;
The other, that he do record a gift,
Here in the court, of all he dies possessed
Unto his son Lorenzo and his daughter.

(IV. i. 396-406)

The chief hurdle to understanding this bizarre show of “mercy” is its opening two and one-half lines, which are “precatory”—they mean nothing at all to the law. Antonio merely reiterates the Duke's disposition of the half of Shylock's goods that are to go to the state! Antonio has no power over, nor any interest in, that half. Thus he is in fact forgiving the “fine” that only the state has a right to get. So Antonio begins his speech by winning the hearts of his listeners through a gracious disposition of that which he does not own.

The legally irrelevant opening rhetorical gambit might be understandable in one untrained in the law. But Antonio turns out to be no ingenu: his false generosity is but the preface to a highly legalistic maneuver that will totally destroy Shylock. Furthermore, the first two and one-half lines deliberately evoke earlier examples of Christian rhetoric masking self-interest, greed and theft. To take three such cases only: in Act I, Bassanio succeeds in getting Antonio's support for the loan of 3000 ducats not by using direct speech, such as “Lend me this; I'll pretty myself up, head over to Belmont, win the hand of the rich heiress and return to you not only this loan but the previous ones I have welched on.” Instead, he uses the graceful image of the bow and arrow, a lovely figure that couches in ethereal language what is in fact a grimy purpose. In the same act, Shylock's usury is seen as evil, but the plundering of colonials engaged in by Antonio's ventures is masked by the romantic imagery of “ships at sea.” As Judith Koffler has masterfully shown in a leading law and literature piece on the play, the Christian contribution is one of elevated rhetoric, not improved human relations (116-34). And, finally, Lorenzo spirits away Jessica and much of Shylock's wealth, robing with some of the play's loveliest lines the breach of at least two Commandments.

So Antonio uses the opening moment of his response to Portia to do what he—and the Christians generally—are best at: rhetorical but not actual generosity. (Shylock's method, unfortunately for him, is that of the comedic villain but not always the earthly wrongdoer: he speaks what is on his mind, often in a more literal language than would please the Christians.) He merely mimics Bassanio, who throughout this same scene has managed to hide through rhetorical flourishes that the ducats he constantly offers Shylock are, of course, Portia's (and her avoiding the loss of this wealth goes a long way to explain why she instead brings Shylock down). How sweet of Antonio to forgive even the meager “fine” that the Duke fashioned for Venice (“Ay for the state,” says Portia, “not for Antonio”) as a way of reducing Shylock's penalty in the face of an already humiliating and procedurally questionable reversal of fortune. Generations of critics, if not necessarily the play's audiences, have been hoodwinked by the opening rhetorical move. The rest of the speech, replete with legalistic exactitude, usually goes unexamined.

Let us pay Shakespeare the compliment of understanding the substance of his merchant's “mercy” to Shylock. Antonio fleshes out the Alien Statute—and I've chosen my verb carefully—as follows:

1. Shylock must place half of his present wealth into a trust, with Lorenzo and Jessica receiving the principal at Shylock's death;

2. Shylock must convert to Christianity;

3. Shylock must pledge to will all of his after-acquired wealth to Lorenzo and Jessica.

To make this Draconian “mercy” more comprehensible—and putting aside for the moment Shylock's forced conversion—we'll assume that Shylock currently is worth 1,000,000 ducats. Recall that, under the Alien Statute, half of that was to go to the state, but that the Duke reduced the penalty to a fine of undetermined amount. We can assume further, then, that Shylock has been permitted by the state to keep 400,000 ducats and required by Venice to pay 100,000 as his fine.

Compared to that scenario, as we shall see, Antonio's disposition of Shylock's present wealth is by no means generous.

THE “SHYLOCK TRUST”

The merchant, apparently knowledgeable in the intricacies of property law, seizes the half of the moneylender's present wealth under his dominion and places it in “use”—the Elizabethan and indeed the present synonym for a “trust.” We will call this the “Shylock Trust.” Shylock's wealth provides the res, or subject matter of the Trust (namely 500,000 ducats). Antonio will be the administrator of the trust (the “trustee”). Under his direction alone, subject only to a use of the wealth that will be deemed responsible by some eventual court of equity, the 500,000 ducats will be invested, and they will provide both income and preservation or growth of the principal itself. The Trust provides for two categories of “beneficiaries,” the income beneficiary and the remaindermen, that is, those who will get the principal upon the death of Shylock.

Who gets the income from the Shylock Trust? Antonio's failure to name the income beneficiary is not fatal to the formation of the trust. In fact, he seems either to be giving Shylock the income benefit or else himself. This can be clarified later. What Antonio makes clear is that he is vesting the remainder interest, i.e., the right to take the principal upon Shylock's death, in Lorenzo and Jessica.

So—since this is the fairer reading of his words—if we assume that Antonio is keeping the income interest for himself, the Shylock Trust would be enforceable as follows:

1. 500,000 ducats, yielding approximately 5٪ a year, provides an annual income of some 25,000 ducats to Antonio for as long as Shylock lives. Antonio would thus be the income beneficiary pur autre vie (bad lawfrench for “for the life of another,” i.e., for as long as Shylock lives).

2. Meanwhile, through careful investment, the 500,000 ducat principal is preserved. At Shylock's death, Jessica and Lorenzo get these monies. The Shylock Trust is terminated.

THE “SHYLOCK WILL”

Antonio goes much further, however. Exceeding the terms of the Alien Statute, he insists that even Shylock's after-acquired wealth be subject to his command. Recall that Shylock, although elderly, is still active and successful on the Rialto. He may be stripped of 60٪ of his present wealth, but he may well go on to earn millions more. Furthermore, he may receive gifts from others or in some different manner acquire new property. The Alien Statute gives neither the state nor Antonio the right to control these future earnings or possessions. Antonio, drunk with legalistic power, grabs them anyway, imposing the following scheme: Shylock must pledge immediately that he will bequeath to Jessica and Lorenzo all of his after-acquired wealth. Of course, this permits him to continue to earn and to live from those earnings. (If he finally gets himself good legal counsel, which he now knows he should have done before going into court, Shylock may also be able to plan his estate so that there's nothing left when he dies. Or he may covertly amend his will, which lawfully may be done until the moment of his death, to leave his wealth to someone who has truly loved him.) On the other hand, if really forced to convert to Christianity, he may not be able to pursue his work as a moneylender. In any event, what is left in Shylock's estate at his death must presently be pledged to Lorenzo and Jessica.

Few late-twentieth-century audiences applaud Antonio's insistence upon Shylock's conversion to Christianity. Once heeded and understood, these property arrangements seem almost as odious. Shylock, whose acuity with language surpasses most of the Christian characters—but who errs, as we have seen, by refusing to adjust his own direct speech to their hypocritical patterns—knows that “You take my life / When you take the means whereby I live.” Although the conversion must strike him as disgusting, its enforced effect plays equally upon his profession. Antonio, of course, also understands that Christians do not take money for interest; they leave this to the Jews, having monopolized other and more covert forms of plunder. Shylock is left only with what the Duke has provided him. And he must face the additional torment of being the enforced benefactor of a young couple he has every good reason to despise.

“These be the Christian mercies.”

THE COMEDIC CIRCLE SQUARED: MERCY TO LEGALISM TO LAW

Yet the play remains a comedy. As I have elsewhere argued, Shylock must be brought down; his comedic villainy consists in equal parts of vengeful excess, linguistic directness, and ethical precision. Oathkeepers and direct talkers, as everyone from Shakespeare and Molière to Stoppard and Ionesco know, do not fare well in a comic arena. Nor do monomaniacs, although that term is too strong for Shylock, whose obsession about the pound of flesh commences only as his daughter elopes and is mediated even at the trial by accurate reflections upon the Christians that are as keen as his sharpened knife. Shylock must fall because ethical behavior, which can often seem compulsive to an observer, sits poorly on a religious outsider trying to exert himself lawfully in a comedic environment.

The audience to a comedy wants and deserves the defeat of such a character. Having received that in the trial scene, in Act V it expects nothing but music, poetry, and conjugal bliss. Shakespeare provides, instead, discords, arguments, and still unconsummated marriages. These peculiar elements alone make the play “ironic” despite the flawed and even transparent attempts of mainstream critics to find harmonies, dances, and resolutions.⁶

As we have seen, the disharmonies of Act V conjoin with a strange move, led by Portia, to the language of law otherwise embodied in the play largely by the comedic villain himself. It is as though her dealings with the Christians during the trial have left her at least as exasperated with their cruelties as with the single excess she disguised herself to remedy. Now speaking in her own voice, she adopts for Belmont neither the “mercy” of her own most famous speech nor the legalisms of her (and Antonio's) victory over Shylock. Instead, she leads her world of Venice to law—to an insistence on the primacy of language used directly to promise and to commit one individual to another.

To do this, Portia must, of course, accomplish more than the mere imparting of legal language she has learned from Shylock. But even this is far from trivial. When the curtain virtually falls with Gratiano calling for an “inter'gatory”—formal legalized questioning under oath—as to whether he and Nerissa should finally bed down, the most extreme anti-Semitic Christian in the play has adopted Shylock's legalistic turn of phrase.

Portia must also, however, reject Antonio. There is little doubt, now that we have read carefully the trial scene and its aftermath in the giving away of the rings, that Portia sees Antonio as a direct threat to her still unconsummated relationship with Bassanio. When the merchant absurdly thrusts himself again between them, she is much too intelligent not to see the grotesque repetition of Antonio's earlier commercial mediation. She remains polite, but the following dialogue should be read as her ironic rejection of the mediated “surety” relationship that permits one party to stand in the place of another:

ANTONIO:
I once did lend my body for his wealth,
Which but for him that had your husband's ring
Had quite miscarried. I dare be bound again,
My soul upon the forfeit, that your lord
Will never break faith advisedly.
PORTIA:
Then you shall be his surety.

(V. i. 268-73)

A surety is, somewhat like a guarantor, a “middleman” who can be sued in the place of the actual debtor. The implications of Antonio's excessive, repetitive impulse to “stand in” for Bassanio are all too clear to Portia. She sees that the merchant's urge to mediate is as compulsive as the Jew's impulse to “stand on the law.”

Which is better? For Portia, as for the thoughtful member of this play's audience, there is no easy answer. But she now feels empowered, in her own domain and voice, to try out the regime of law and to see if—stripped of an excess forced upon it by the mainstream culture—Jewish ethical modes might be less formalistic and less cruel than Christian “mercy” of the Antonio variety.

CONCLUSION

Law and literature crosses disciplinary borders to seek enlightenment where important sections of stories have remained mere inkblots to decades and even centuries of otherwise sentient readers. In the case of the text we have just been examining, law—as Shakespeare's precision in these matters makes clear—is meant to help identify character. We cannot emerge from Antonio's legalisms without wondering about his cruelty. If, instead, we stop reading the end of the trial scene before embracing the language of property law as it is given to us, we are likely to mistake Shylock's fidelity for intractability, Antonio's technical manipulation for graciousness, and Portia's increasing dislike of the merchant of Venice for a loving friendship or even a three-way “dance” of comedic alliance. The stakes are, at the least, the meaning and staging of Act V and, at the most, the comprehension of the play's values as attuned to those of the defeated litigant.

Notes

1. The author gratefully acknowledges the suggestions of Peter Alscher, Lawrence Danson, and Jay Halio, none of whom, however, is responsible for any of the opinions expressed in what follows.

2. See, for example, the Symposium Issue with articles on the story by Judith Koffler, Robin West, James Warren, Brook Thomas, Steven Mailloux, Richard Posner, Michael Hancher, and the present author, whose work on the story in the earlier The Failure of the Word has been discussed in Sealts 39-61 and Appendix 3: “With regard to Vere's conduct of Billy's trial and execution [our 1962 ‘generic text’] concluded—perhaps somewhat hastily—that Melville ‘simply had not familiarized himself with [naval] statutes of the period’” (51). In a similar vein, see Milder 77-79.

3. See Proceedings with articles on the play by Peter Alscher, Jay Halio, Charles Spinosa, Susan Oldrieve, Clayton Koelb, Judge David B. Saxe, Marci Hamilton, and Daniel Kornstein. All these sources point to the origins of legal analysis of the play dating to the natural lawyer Von Ihering (who took Shylock's side in the late 19th century) and various English and American explanations of the contract formation scene (I. iii). My analysis below focuses on Antonio's disposition of Shylock's wealth in IV. i.

4. Productions influenced by lawyerly readings of the play include those of the Peter Royston Players (New York, 1992-93) and of the Hofstra Theater Department (1996).

5. The famous “ring plot” has been much discussed by critics and with recent excellence by Kahn 107-111. Kahn's view that Portia deems Antonio an unworthy rival for Bassanio's affections parallels mine here. But it is significant to me that Kahn barely touches on Shylock as a player in this plot, despite the text's obvious association of the Jew with values connecting ethical marital behavior to the ring, values everywhere betrayed by the Christians (led by Antonio) until Portia formally espouses them in Act V. Yet there, Kahn—allowing that “ironic similarities between Jew and Christian abound”—places these less in the realm of a positive morality in fact espoused by Portia than in the negative vengeance Portia displays toward her transgressing husband (110).

6. See Danson.

Works Cited

Danson, Lawrence. The Harmonies of “The Merchant of Venice.” New Haven: Yale UP, 1978.

Kahn, Coppelia. “The Cuckoo's Note.” In Shakespeare's “Rough Magic.” Ed. Peter Erickson and Coppelia Kahn. Newark: Delaware UP, 1985.

Koffler, Judith. “Terror and Mutilation in the Golden Age.” Human Rights Quarterly 5 (1983): 116-34.

Milder, Robert. “ARTICLE?” American Literary Scholarship (1982): 77-79.

“Proceedings of the Association of the Bar of the City of New York.” Cardozo Studies in Law and Literature 5.1 (1993).

Sealts, Merton. Beyond the Classroom: Essays on American Authors. Columbia: U of Missouri P, 1996.

“Symposium Issue.” Cardozo Studies in Law and Literature 1.1 (1989).

Weisberg, Richard H. Poethics and Other Strategies of Law and Literature. New York: Columbia UP, 1992.

———. The Failure of the Word. New Haven: Yale UP, 1984.