SOURCE: "Fie Upon Your Law!," in Cardozo Studies in Law and Literature, Vol. V, No. 1, Spring, 1993, pp. 35-56.

[In the following essay, Kornstein evaluates The Merchant of Venice as a legal parable that weighs the conflict between rigid and equitable interpretations of law.]

The Merchant of Venice is surely the Shakespearean play most closely linked in the popular mind with law. The crucial trial scene sears the legal and popular conscience like nothing else in Shakespeare. Over the centuries, The Merchant of Venice has spawned more commentary by lawyers than any other Shakespeare play. Books and articles in large number have flowed from the busy pens of attorneys and others seeking to understand and explain the legal meaning of this play. And yet for all that has been previously written by lawyers about the play, there is still more to be said.

Commentary on the legal aspects of the trial in The Merchant of Venice is divided. One critic, not a lawyer, thinks the trial scene is so controversial that each reader must decide, like a Supreme Court justice, where to stand in the conflict.¹ The vast majority of scholarly commentary—an eight-to-one ratio—agrees with Portia's ruling.² For such scholars, the ruling of the court is a victory of the liberating spirit over the deadly letter of the law, of mercy over legalism, and of reasonable discretion over Shylock's demand for literal-minded justice. According to these majority commentators, Shylock gets just what he deserves—severe punishment for his miserly vengefulness. The consensus view is that the play dramatizes the struggle in Shakespeare's England for supremacy between the common law courts and the equitable Court of Chancery.

The minority view disagrees with Portia's judgment.³ Those dissenters see Shylock as a victim of injustice, as the hero of the play, as shown no mercy by Portia, and as trapped by secret legalities. Rather than a fiend, Shylock strikes the minority as a tragic victim of religious and ethnic prejudice. Portia's judgment, to these contrarians, is a triumph of vengeance in the guise of justice. The more I think about The Merchant of Venice, the more I find myself in the minority camp.

As the sharp split of opinion might indicate, The Merchant of Venice has a persistent and uncanny grip on human imagination. Shakespeare's play strikes at the subconscious with a force extremely rare in literature, even in classics. When Dustin Hoffman played Shylock in London and on Broadway in 1989 and 1990, it was an international cultural event. And Laurence Olivier's film version of Merchant still captivates us. Part of what makes a classic is its capacity over time to yield new and different meanings. The Merchant of Venice has this ability to be meaningful to successive generations of viewers. Each playgoer brings personal experience and sensibility, a unique response and attitude to the play.

The sensibility and response of a lawyer may find new meaning in The Merchant of Venice. To someone trained in the law, the important and lasting message of The Merchant of Venice has an overwhelmingly legal cast. Although at its core The Merchant of Venice is about the complexity of the human spirit, the play is in many fundamental ways about law and about the need for law to reflect the folkways and mores of the community. The classic trial scene in Act IV is the climax of the play. But even apart from the trial scene, the entire play is from start to finish dominated by several legal themes. It is impossible to understand the play fully and in all its richness without grasping these legal themes.

The legal themes occur in the context of an attempt to enforce a contract. The main action in the play turns on a civil lawsuit, the material facts of which are simple, undisputed, and well known. Plaintiff Shylock is a Jewish moneylender; defendant Antonio is a Christian merchant in Venice who needs funds to help his friend Bassanio woo an heiress, Portia. The parties enter into a written agreement whereby Shylock departs from his usual practice of charging interest and lends money interest-free to Antonio. The loan agreement provides a grisly penalty—that if Antonio fails to repay the loan on time, then Shylock could cut out a pound of flesh nearest Antonio's heart.

Antonio's ships do not come in on time and the repayment date passes. Shylock, whose normally high level of resentment against Antonio's anti-Semitism is raised to irrational revenge on learning of his daughter's elopement with a gentile, now sues for deadly specific performance. Spurning repayment several times over, he wants his pound of flesh. At the trial, Judge Portia presides in the guise of Balthasar, a learned young Doctor of Laws recommended by Dr. Bellario, a noted jurist in Padua. Portia-Balthasar tells Shylock, "Of a strange nature is the suit you follow," (IV, i, 180) which is Shakespeare's way of saying it is what lawyers today would call a "case of first impression."

I. Liberty of Contract and Its Limits

One key to explaining the strange case of Shylock v. Antonio is the conflict between two legal doctrines: on one hand, liberty of contract and, on the other, limitations put on that liberty by public policy. The trick is to think of the contract in Shakespeare's play as void against public policy. Shylock wants the court to uphold freedom of contract, and asks to have his contract enforced according to the clear and unambiguous terms freely agreed to by the parties. From Shylock's point of view, the case is ripe for summary judgment.

Liberty of contract is of bedrock importance to Shylock. The ability to structure transactions as parties wish facilitates commerce and helped to overcome the economic inertia of feudalism. Equally important, that same ability shifts the focus away from one's inherited status by way of family or religion as a detriment to consensual agreements. This famous movement from status to contract creates social and economic mobility and allows far more personal freedom. A person has more rather than less freedom if he or she is allowed to make a legally binding contract, even though by making it some freedom is surrendered while the contract is in force.

Shylock seeks a literal reading of the contract. The contract says a pound of flesh of Shylock's choosing, and Shylock will settle for only that.

So says the bond; doth it not, noble judge?
Nearest his heart. Those are the very words.

(IV, i, 261-262)

When Portia suggests that Shylock have a doctor at the ready to stop Antonio from bleeding to death, Shylock falls back upon a strict construction:

Shylock: Is it so nominated in the bond?
Portia: It is not so expressed, but what of that?
'Twere good you do so much for charity.
Shylock: I cannot find it; 'Tis not in the bond.

(IV, i, 268-271)

Shylock here symbolizes literalness and technicality in the law, divorced from common sense, prudence, and practical wisdom.

By resting his case so heavily on legal technicality, Shylock draws the lines of battle on a treacherous field. Experienced trial lawyers know that getting one's adversary and the court to accept one's definition of the issues is half the battle, but here that tactic backfires. Shylock defines the issues in terms of literalness and technicality, and Portia reluctantly accepts his definition. But Shylock's reliance on technicality invites Portia to do the same, and Portia responds by giving a technical interpretation, though only after leading him on.

For a while, Portia appears to agree with Shylock's interpretation. She seems to accept the legality of the penalty clause, as she tells Shylock: "the Venetian law Cannot impugn you as you do proceed." (IV, i, 181-182) She adds that the law clearly allows the stipulated penalty:

For the intent and purpose of the law
Hath full relation to the penalty,
Which here appeareth due upon the bond.

(IV, i, 236-256)

And she looks as if she is ready to enforce it:

Why, this bond is forfeit,
And lawfully by this the Jew may claim
A pound of flesh, to be by him cut off
Nearest the merchant's heart.

(IV, i, 236-239)

No wonder Shylock is emboldened to sharpen his knife. Portia's attitude up to this point has three consequences. First, it persuades Shylock to view her as someone who "know[s] the law" and whose legal judgment is "most sound" and authoritative. (IV, i, 243-244) He calls Portia, "A Daniel come to judgment! . . . O wise young judge," (IV, i, 228-229) "a worthy judge," (IV, i, 242) "most learned judge," (IV, i, 314) "most rightful judge," (IV, i, 311) "a well-deserving pillar" of the law. (IV, i, 245) The second consequence is to raise Shylock's expectation of legal victory so that he rebuffs munificent settlement offers of three times the principal of the loan. This inflexible and rigid settlement posture on Shylock's part means the matter will go to judgment; there will be no compromise. (A trial lawyer who had been around the block a few times would have advised Shylock that it is always risky and dangerous to reject a settlement recommended by the trial judge, no matter how airtight the case might seem.) Finally, Portia's early tilt toward Shylock beautifully sets the stage for the dramatic reversal that comes next. By lulling Shylock into a false sense of security on the very brink of his success, Portia—and Shakespeare—highlight the suddenness and the extremity of the change in circumstances that happens.

Portia abruptly pulls the judicial string on Shylock by resorting to an even more literal and hypertechnical interpretation than Shylock's. "Tarry a little," she says ominously to Shylock, "there is something else." (IV,i,315) Portia then points out that the contract says a pound of flesh but nowhere mentions blood. Therefore, she rules, Shylock must cut precisely one pound of flesh—no more, no less—and without shedding any of Antonio's blood—an obvious impossibility. Faced with such a hypertechnical reading, Shylock utters the incredulous cry of all disappointed litigants: "Is that the law?" (IV, i, 324)

It might or it might not be the law. It could be argued with some force—part of the extensive literature has in fact done so—that Portia's interpretation is not the law.⁴ To hold, as Portia does, that Shylock may take a pound of flesh but no blood is transparently absurd. Although no one in the play makes this rebuttal argument, the bond must have implicitly authorized what was necessary for Shylock to get his pound of flesh, that is, the shedding of Antonio's blood. Portia's interpretation is like granting an easement on land without the right to leave footprints.

From this perspective, Portia's judgment seems to be a quibble, a ludicrously literalist reading of the contract; an empty, hypertechnical legalistic interpretation that is illogical, useless, impossible and absurd.⁵ Portia shows herself as legalistic as Shylock. Portia and Shylock here demonstrate that law, literally construed, can be nonsense. They epitomize the empty and useless consequences of literalist and legalistic interpretation. Portia's legalistic and hypertechnical "flesh-but-noblood" construction is probably also quite unnecessary. There are alternative rationales for denying Shylock's suit. Instead of resting her decision on interpreting the text of the bond, Portia could explicitly rely on public policy. Rather than ingeniously quibbling about the wording of the contract, Portia could have forthrightly addressed whether the bond was legal in the first place. It may be more accurate to understand Portia's ruling as in fact based on public policy, though explained by her in terms of construing contract language. We should perhaps focus on the result, not the rationale; we should watch what Portia does, not what she says.

Surely Portia's cram course with Dr. Bellario, the renowned legal expert in Padua who supposedly sent her to Venice in his place, taught her that liberty of contract has limits. She must have learned to ask the hardest question of all about freedom of contract: should every contract between consenting and adequately informed adults be enforced to the limit? Certain bargains, she has to have learned, are illegal, void, and unenforceable as against public policy. To find that public policy, Portia can look to legislation, common law, and the prevailing practices of the community of people and their notions as to what makes for the general welfare.

Rather than a strained, legalistic interpretation, Portia could have right away invoked the public policy against absurd contracts such as Shylock's. No court in any civilized society would even entertain the thought of enforcing a contract penalty calling for the death of one party. It would be obviously unconscionable, like a contract of self-enslavement. She could have immediately relied upon, as she ultimately does, the Venetian statute against attempted murder, not to punish Shylock but as a source of public policy. Portia would be on more solid legal ground here, especially when Shylock refuses to take three times the principal instead. Such a conclusion depends on no fine-spun parsing of contract terms but goes to the heart of the transaction—Antonio's heart.

Portia rules the contract unenforceable, both as to principal and penalty, but hardly stops there. She wheels on Shylock with legalistic fury, as she begins to deal with the second major phase of the case. According to the cited statute, Portia says Shylock must pay half his wealth to his intended victim, Antonio, and "the other half/comes to the privy coffer of the state." (IV,i,366-367) In the end, Shylock is even forced to convert to Christianity.

The legal underpinnings of Portia's ruling should be familiar to us. The doctrine that contracts against public policy are void is still very much alive. Under the law of New York and a number of other states, for example, a usurious contract is void and unenforceable, and the usurious lender must forfeit principal as well as interest. The case reports are full of lenders who, caught in the web of such usury laws, plead as ineffectively as Shylock did, "give me my principal and let me go." (IV, i, 348) The newly emerging "lender liability doctrine," which makes lenders in certain situations liable for damage they cause to borrowers, may trace its roots to the seminal case of Shylock v. Antonio.

A classic example of a contract against public policy is an agreement in restraint of trade, and restraint of trade may lurk behind much of the action in The Merchant of Venice. Shylock and Antonio are competitors: Shylock lends money at interest, Antonio lends money without interest. Thus, on seeing Antonio in Act I, Shylock says in an aside:

I hate him for he is a Christian;
But more for that in low simplicity
He lends out money gratis and brings down
The rate of usance [i.e., interest] here with us in Venice

(I, iii, 38-41)

To Shylock, Antonio is a hated below-cost competitor, and part of Shylock's motivation may flow from a desire on Shylock's part to rid himself of such off-price competition. In this sense, Shylock v. Antonio has antitrust aspects on which Judge Portia takes a pro-competitive stance.

Quite apart from public policy, other independent legal grounds exist for plausible rulings.⁶ Portia could have refused the equitable remedy of specific performance on the ground that Shylock has an adequate remedy at law for damages, especially because he has been offered more than principal and interest. Indeed, mere tender of the principal plus interest could by itself suffice to rule against Shylock. Repayment is the only legitimate purpose of the contract.

Not everyone agrees with such legal objections to Shylock's suit. Several lawyers who have written on the play have concluded that Antonio's obligation is unconditional and automatic.⁷ They argue that English common law and Roman civil law would prevent the cash tender in open court from rescuing Antonio if Shylock were to insist on the penalty.⁸ Others contend that Roman law might have enforced Shylock's penalty against Antonio.⁹ To me, these arguments have the smell of the lamp about them, out of touch with practical realities. Despite such legalistic arguments, the contract simply would not be enforced—under medieval Venetian law, under Roman civil law, under the English law of Shakespeare's time, under current American law—or under any other civilized system of law.

Portia might also have denied enforcement because of fraud. It can be argued that Shylock proposed the penalty clause to Antonio as a jest; Shylock himself told Antonio that the bond is "in a merry sport" (I, iii, 147) and not meant seriously (which may be the case until Shylock's daughter Jessica elopes with her Christian lover and takes Shylock's jewels with her). But the severity of the penalty, the seriousness with which Antonio understood it, and the solemnity of sealing the contract in writing all make fraud less likely.

Two other possibilities come to mind. It could be argued that the bond is an unenforceable gambling contract. Shylock's refusal to accept generous repayment is evidence that the bond is not an ordinary commercial guarantee at all, but truly a gamble on Antonio's life. A final legal ground could have been mutual mistake, as the play's last act reveals that three of Antonio's ships were not in fact lost (as all had thought) but returned to harbor safely and with great profit for Antonio, who can himself now pay the debt. At the least, the court might have let Shylock have his principal, without the burden of the additional punishments. Why should Shylock, who keeps his end of the bargain, be the only loser, and such a big one at that?

But, despite their availability, Portia uses none of these legal escape routes. Of course we must always remember that Portia is not a real judge, but merely a fictional character drawn temporarily into judicial service. Shakespeare wrote a play, not a judicial opinion. In such a context, the needs of drama trump the probabilities of the courtroom. Legalistic arguments based on technicalities provide good, efficient drama, more so perhaps than longwinded and hard-to-expound legal principles and public policy. Besides, only a legalistic argument teaches the lesson that technicalities and literalness beget technicalities and literalness. Portia's persnickety reading of the bond catches everyone, those in the play and in the audience, off guard, and allows the play to take a sharp, unexpected turn. Regardless of whether Portia's ruling is good law, it definitely is good theater, as it turns the tables on Shylock's lethal vengeance.

II. Law and Discretion

More broadly, Portia's ruling vividly illustrates a larger and ever present tension between rigid law and judicial discretion. Those who like Portia's decision (at least that part of it that avoids Antonio's death) say it shows how strict law can and should be mitigated by equity. One theory holds that Shakespeare may have been demonstrating the cruelty of English law and its necessary mitigation by the new courts of equity.¹⁰ From this perspective, Portia's ruling is a metaphor of the struggle between rigidity and flexibility.

Shylock, a descendant of the People of the Law, aligns himself with the Rule of Law. "I stand here for law," he cries. (IV, i, 145) "I crave the law." (IV, i, 211) "If you deny me, fie upon your law!" (IV, i, 103) He seeks "law" and "justice" through a mechanical enforcement of the words of his contract. He relies on certainty and stability in the law merchant to bring him out all right. To the extent Shylock wants the judge to enforce contracts as written, he is an advocate of judicial restraint.

The need for certainty and stability in contracts generally is even more pronounced in the play's commercial setting. Then, as now, the ability to rely on contracts is of prime importance in commercial law. Even Antonio understands this requirement: "The Duke cannot deny the course of law," moans the bankrupt merchant,

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.

(III, iv, 29-34)

As Portia further explains:

There is no power in Venice
Can alter a decree established.
'Twill be recorded for a precedent,
And many an error by the same example

In essence, Shylock is saying—and up to this point Antonio and Portia agree with him—that a ruling in Antonio's favor will upset the entire reliability of commercial contracts under Venetian law, and discourage merchants and moneylenders from doing business in Venice. As a policy consideration, Shylock's position, of course, has some merit.

Shylock's legal stance is far from the harsh caricature often portrayed. Shylock is an outsider in Venice, an unpopular minority member who is discriminated against, a hated alien who lacks the same rights as his adversaries. For such a victim of discrimination, it is entirely logical and reasonable—as Richard Posner insightfully points out in the most original, most important and most liberating contribution of his book Law and Literature—to trust in the apparent severity of a rigid but certain interpretation of law rather than in the discretion of a system that has already shown its bias.¹¹ Discretion can become arbitrariness, and worse than injustice is arbitrariness, the negation of law. Power is tolerated only if it is constrained. The majority does not need courts or law to protect its rights; a minority relies on law for protection precisely because it does not have the numbers to prevail in the political realm.

In this sense, Shylock stands for every minority member who ever sought protection in the safety of clear, precise, written law instead of the personal value judgments of a prejudiced local official. Shylock's concept of law—ridiculed for centuries, shunned by politically correct readers of Shakespeare—has some of the noble and attractive features that animated our own civil rights movement.

For such outsiders, the law of contracts is important. Law and order and the sanctity of contract are essential for them to compete in society. Their success depends on being scrupulous in obeying the law and abiding by contracts. Justifiable insecurity makes them that way.¹²

But Shylock begs the crucial question. When he claims to "stand here for law" and to "crave the law," he omits the key inquiry: what is law? He assumes his rigid approach is the only one possible. Of course he is wrong.

Portia defines law differently than Shylock. She understands that to be sensible, law requires judicial discretion. The rigor of the law, she thinks, must be softened with equity and mercy and tempered by individual circumstances. When Portia gives her moving "quality of mercy" speech, she puts into words an equitable concept of law that should inform all legal proceedings. To this extent, Portia is a judicial activist.

In finding a creative solution to a hard judicial problem, Portia, like King Solomon, shows signs of greatness. Greatness on the bench—as elsewhere—lies in creativity. But such creativity underscores a basic problem in the judicial process. We expect judges to enforce the law, while knowing they must exercise discretion in applying it to the intractable facts of life. How much law and how much discretion (or justice) are appropriate in the decision of a concrete case?

The Merchant of Venice thus sets up once again the ancient dilemma of rule versus discretion, of constraint versus leeway. Shylock symbolizes law as rigid rules; Portia personifies the spirit of equity. Perhaps because of Shakespeare's successful dramatic technique, our intellectual tradition tends to view Shylock's concept as bad and Portia's as good, but that is too simplistic. Both concepts are good, both are liable to abuse, and both are in frequent tension. This basic dilemma may be unavoidable; it may be embedded in the nature of a living legal system.

The implications of this dilemma are far-reaching. Although often discussed in terms of Measure for Measure and The Merchant of Venice, the tension between law and discretion can clearly be seen in the development of whole legal systems. The central legal dilemma so well illustrated in these two plays thus becomes a new way to measure and evaluate what a legal system is actually doing. Such a Shakespearean approach unexpectedly throws light, for example, on American legal history.

Like The Merchant of Venice, the history of American law shows two different approaches to discretion in government, both of which are designed in theory to enhance and protect liberty. One approach—Shylock's—is to limit such discretion; the other—Portia's—is to encourage it. They are part of the conflict within consensus in our attitudes toward interpreting our basic law, the Constitution. These differing approaches to the same professed goal of greater freedom have been from the beginning of American history continually in tension, as the yin and yang of American constitutional law.

HI. Mercy Strained

Much has been written about the quality of mercy that Portia shows Shylock. We know she talks a good game: her moving "quality of mercy" speech during the trial has been read with pleasure, memorized by generations, and quoted to courts over and over again:

The quality of mercy is not strained,
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest—
It blesseth him that gives, and him that takes.
'Tis mightiest in the mightiest. It becomes
The throned monarch better than his crown.
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway,
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation. We do pray for mercy,
And that same prayer doth teach us all to render
The deeds of mercy.

(IV, i, 189-207)

One would think that the person who speaks those lines would feel and act on the sentiments behind them. One would hope that when such a person is in a position of power, she would season justice with mercy. One would expect merciful actions to match noble words.

One would be sorely disappointed. Portia's inconsistency between word and deed is vast. The gulf between her preaching about mercy dropping "as the gentle rain from heaven" and her vengeful punishment of Shylock is unbridgeably wide. On the one hand, she practically begs Shylock to be merciful, and, on the other, she acts with extraordinary cruelty to him only moments later. She could and should have stopped at merely denying Shylock's request for his pound of flesh. Is it absolutely necessary to appropriate all of Shylock's property? To put him under a death sentence? To make him convert to another religion? After all, Antonio did default on the loan. Is Portia's judgment fair? It certainly is not merciful. Portia's huge inconsistency and terrible meanness leave haunting doubts about her character.

Those doubts only grow larger and larger. In addition to her hypocrisy and vindictiveness, we see her as a bigot, and not just a minor-league bigot, but a world-class, equal opportunity hate-monger. We know she is prejudiced against Jews by her enthusiastically reaching out to rely on the harsh, anti-semitic Alien Statute. And we also know she is a racist because of her comments about her African suitor's skin color: when the black Prince of Morocco makes the wrong choice in the lottery for Portia, she snaps with relief, "Let all of his complexion choose me so." (II,vii,80) To these character flaws, we add her jealousy of Antonio's suspect love for Bassanio. On top of all these defects is her corruption as a judge in a case in which she is closely interested.¹³ Portia, for all her cleverness and verbal agility, is unattractive and infuriating, especially as a heroine.

For these reasons, I agree with William Hazlitt, who in the early nineteenth century wrote, "Portia is not a very great favorite with us."¹⁴ To be sure, Portia has for the most part enjoyed good press over the centuries but it mystifies me that so sensitive an observer as Richard Weisberg can refer to Portia as an "exquisite heroine."¹⁵ She strikes me more as the "eloquent mouthpiece"¹⁶ than the lawyer's professional paradigm. She may be quick and legalistically nimble, but more judges like Portia would, in reality, cause a revolution by litigants and lawyers. By going beyond simply denying Shylock's suit and cruelly punishing him, Portia made herself no more of a hero than the infamous Judge Jeffries, notorious for his ruthless rulings during England's Glorious Revolution.

IV. The Casket Game

Even the casket game for picking Portia's husband can be read as a metaphor for law and justice. Portia's dead father's will insisted that her prospective suitors choose among three caskets—gold, silver, and lead—only one of which contains her picture. The suitor who picks the right casket can marry Portia. On the surface, this trial of the caskets seems unrelated to law, but, as the play and the casket trial teach, things are not always what they appear.

Consider the evidence. During the casket trial, the characters refer several times to Fortune and "blind Fortune," (II, i, 37) and Portia says once, "love is blind." (II, vi, 37) Justice, like Fortune and Love, is also supposed to be blind. Next, Portia says to one of her unsuccessful suitors, "To offend and judge are distinct offices," (II, ix, 63) which means, "You willingly chose the trial of the caskets; you should not presume to judge the verdict." A further linking of the caskets to law occurs when Portia's maid says: "Hanging [i.e., the results of law] and wiving [i.e., the results of the casket trial] go by destiny." (II, ix, 86) This in turn brings out the uncertainty of litigation generally, which is surely reinforced by both the play's express language and stunning outcome.

The whole casket game can be read as a metaphor about law and legal interpretation. Think of Portia's father's will as law. Just as "the will of a living daughter [is] curbed by the will of a dead father," (I, ii, 24-25) so too is our desire to govern ourselves constrained by the dead hand of the past. Like Portia's father's will, our law—constitution, statutes, common law—represents the past. In interpreting the Constitution, for example, in choosing how to apply it, we must—it is often said—defer to the intent of the Framers, who have long since departed the scene, rather than adapt to new circumstances. In this sense, we are in the same predicament as Portia, who complains, "the lott'Ry of my destiny / Bars me the right to voluntary choosing." (II, i, 15-16) And yet Portia's song to Bassanio allows her, by interpretation, to bring about the outcome she wants.

The three caskets are themselves compelling evidence of a legal theme. The winning lead casket bears an inscription that continues the sub theme of chance: "Whoso chooseth me must give and hazard all he hath." (II, vii, 16) So it is with litigation. The silver casket, a loser, says, "Who chooseth me shall get as much as he deserves," (II, vii, 7) which is one definition of justice. Later, Portia adds to that definition: "In the course of justice, none of us / should see salvation. We do pray for mercy." (IV, i, 304-305) But it is the gold casket that is the most convincing.

The gold casket's legend is: "Who chooseth me shall gain what many men desire." (II, vii, 37) It symbolizes the gulf between appearance and reality; inside it says: "All that glisters is not gold." (II, vii, 66) When Bassanio considers which casket to pick, the first example to his mind of an "outward show" is legal:

In law, what plea so tainted and corrupt
But, being seasoned with a gracious voice
Obscures the show of evil.

(III, ii, 75-79)

After 20 years of practicing law, I can only say: 'Tis true, 'Tis true.¹⁷

The theme of the trial of the caskets—that things are not always what they seem—also runs through the trial of Shylock v. Antonio. Shylock's contract with Antonio appeared clear and unambiguous, but Portia shows that this is not the case. Even Portia herself is not what she seems. As the fianceé of Antonio's best friend for whom the loan was made, she is anything but a disinterested judge. Her bias removes the blindfold from justice. Indeed, Portia is neither a man nor a lawyer. In spite of her speech about mercy, she is unnecessarily cruel to Shylock. Does all this mean Portia is a fraud? That justice is a fraud? Or merely uncertain?

V. Equal Protection

From a slightly different legal viewpoint, the play shows what happens when a society denies equal protection of the laws. Shylock's hate and revenge—what he calls the "ancient grudge" between Jews and Christians (I, iii, 44)—arise from the suffering, humiliation, injustice, and prejudice he and his co-religionists have borne. Shylock is not a cardboard figure of evil, but a complex and somewhat sympathetic man who has suffered much. We feel this with the intensity of his eloquent "Hath not a Jew eyes?" speech. (III, i, 52-65) As a non-Christian, Shylock could not even become a citizen of Venice. It is this discrimination that makes the crucial Venetian law—the vile Alien Statute—apply to him:

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. . . .

(IV, i, 361-364)

This Alien Statute deserves strict scrutiny, as it is an outrage, at least to 20th century readers. Curiously, this odd and sinister law, so central to the play's outcome, has largely escaped careful legal analysis. In a new, pathbreaking paper, Peter Alscher, in this very number, brilliantly refocusses our attention on the vices of the statute. As Alscher points out, the law gives the state incredible power. If the statute is violated, the state has the legal authority to take all the property of a Jew or any other alien. Half goes to the Venetian citizen whose life has been threatened, and half to the government. The law also allows the state to execute the offender. These are severe punishments indeed.

The severity of the penalties under the Alien Statute is by no means matched by the severity of the crime for which they can be imposed. The law prohibits not only direct but also "indirect attempts" on the life of any citizen and includes merely "contriving against" such a life. The statute appears to apply even when the offender acts in self-defense or when no bodily harm is actually done. Ignoring the salutary distinction made by Isabella in Measure for Measure, the Alien Statute can be invoked not only for actions but also for intentions to act. The statute might be interpreted by Venetian citizens to prosecute "contriving against" a citizen's livelihood as well as his life, since property is the foundation of life. Conceivably, if an alien seeks repayment of a loan made to a citizen, such action itself could amount to "contriving against" the citizen's life.

These objections are nothing as compared to the fundamental flaw of the Alien Statute, which is its denial of equal protection of the laws. It discriminates against aliens, including Jews. There is no comparable Citizen Statute. A citizen who indirectly "contrived against" the life of an alien would not be subject to the same penalties. By virtue of this law, a Jew does not have the same rights as a citizen of Venice. This is the real vice of the Alien Statute: it constitutes unequal treatment by the state, it takes away the civil rights of Jews, and it deprives Jews of the right to private property. The statute would be clearly unconstitutional under American law.

A basic and obnoxious defect indelibly taints the Alien Statute. It embodies anti-semitism and encourages persecution against Jews. By making Jews' hold on life and property precarious, it foreshadows the infamous Nuremburg Laws of our own century, and reminds us of Jim Crow laws in this country and apartheid in South Africa. What strikes a modern reader is that no one in the play—not even Shylock—challenges or contests this awful law. Everyone seems to accept the awful premise of the Alien Statute. Have fundamental sensibilities changed that much?

Despite these deeply offensive qualities, the Alien Statute's application to Shylock has not drawn unanimous disapproval. On the contrary, the overwhelming majority of commentators do not object at all. But in the eyes of the minority, invoking the Alien Statute against Shylock is a horrible miscarriage of justice. After all, Shylock has no prior warning of this infuriating law. Rather, Portia previously told him that no other legal obstacle blocked his suit. For example, Portia asks Shylock to show mercy or else "this strict court of Venice / Must needs give sentence 'gainst the merchant there." (IV, i, 209-210) Portia brings up the Alien Statute for the first time only after Shylock has withdrawn his demand for a pound of flesh.

Taking all of the factors into consideration, Alscher proposes a radical resolution of the trial scene. In a dazzling set of new stage directions, Alscher makes the Alien Statute the true villain of the play. To challenge and eliminate this evil law, he introduces the statute itself as a paper scroll prop in the play. As Portia reads the scroll statute in Alscher's version, she has picked up Shylock's knife and uses it to point to the words. When finished, after saying that Shylock's life is at the mercy of the Duke, Portia gives Shylock's knife to Antonio, who starts and then stops in an effort to kill Shylock. The high point in Alscher's directions comes when Antonio raises high the knife and, for one potentially epiphnal moment, considers plunging the knife through the scroll.¹⁸

Shylock is not only a Jew, he is a symbol for any group that feels itself oppressed. Substitute African-Americans, women, or any other such group, and we understand the strength of their impatient feelings for full equality. Shakespeare's play thus becomes a dramatic representation of the common-sense wisdom of the equal protection requirement of the Fourteenth Amendment. Rather than anti-Semitic, the play is prominority rights. It shows how inequality before the law breeds dangerous and divisive discontent, never a good thing in any society.

For at least one group—women—the play stands out as an example of triumph over inequality. Portia defies the codes of her milieu by assuming a commanding position of authority and respect as lawyer and judge in a man's world. She is skillful, witty, and learned. Despite occasional criticism from contrarian commentators like myself, Portia's name has become synonymous with eloquence and wisdom in a female attorney or judge. John Mortimer, the English lawyer and writer, has his fictional London barrister, Horace Rumpole of the Bailey, often refer admiringly to his female colleague Phillida Trant as "the Portia of our chambers." And at least one colleague on the Supreme Court has complimented Justice Sandra Day o'Connor—whom I once saw in June 1971 at the Folger Shakespeare Library—as "our Portia."¹⁹

Portia, moreover, rebels at the lack of choice in marriage. Intelligent and ambitious, Portia feels that society and her father's will fetter her choices. She is not resigned to her lot; she takes control.

But here, too, Portia's feminist triumph may not be all that it appears. Once the trial is over, Portia resumes her demure domestic role. Portia almost seems like two different persons, one the clever, forceful judge, the other a passive princess. Her rebellion over lack of marriage choice is more verbal than real: she complains but still submits to the marriage lottery. In sharp contrast, Shylock's daughter Jessica talks less but rebels more by running away from her father and marrying out of her faith. In this sense, Jessica may claim equal title as the feminist heroine of the play.

VI. Act V's Overlooked Legal Significance

The play's Fifth Act has often been neglected, but this would be a serious mistake, particularly from a legal point of view. Act V has the three sets of young lovers—Jessica and Lorenzo, Nerissa and Gratiano, and Portia and Bassanio—playfully bantering on the island of Belmont, where Portia lives. Coming as it does right after the tremendous tension of the trial scene in Act IV, the final act strikes many as anticlimactic and even superfluous. In fact, throughout much of the 19th century, English productions of The Merchant of Venice simply stopped the play after Shylock's humiliation at the end of the Fourth Act, dropping entirely the last act. Now, thanks to Richard Weisberg, we know just how much of an error it would be to overlook Act V.

Weisberg, in Poethics, sets forth an original and persuasive case for the crucial importance of Act V to the underlying legal themes of Shakespeare's play.²⁰ Unlike almost all other legal commentators on The Merchant of Venice, Weisberg goes beyond concentrating on the trial scene. According to Weisberg's trailblazing analysis, Act V is filled with legal imagery and talk of promises that represent a turnaround of the play's legal momentum. By the end of the play, Shylock may be vanquished, but his legalistic mindset has triumphed; everyone becomes as legalistic as Shylock.

The great change in Portia's attitude in Act V is hard to miss when we compare it to what happened in Act IV. At the trial, Shylock stands for sanctity of contract, the keeping of promises, and verbal expressions of commitment. The courtroom attack on Shylock is an attack on verbal obligation. Antonio, Bassanio, and their Venetian friends are casual oath-breakers and outright racists. Portia's ruling, however disguised in its own legalisms, encourages lighthearted breaches of contract and not taking seriously the making of a sacred oath. Equity won over law.

But all that changes in the often neglected Act V. There, Portia and Nerissa chide their lovers for giving away their wedding rings. Portia lectures Gratiano with words equally applicable to Bassanio:

You were to blame—I must be plain with you—
To part so slightly with your wife's first gift,
A thing stuck on with oaths upon your finger,
And so riveted with faith upon your flesh.

(V, i, 167-170)

Now we have Portia, the symbol of equity, stressing the importance of oaths and their physical representation—rings. She asks Bassanio for "an oath of credit" that he will be faithful and never again give away her ring. (V, i ,564) Portia, having in Act IV allowed it as a judge, forbids oathbreaking in Act V. By play's end, law prevails over equity, oaths over breaches, and Shylock's ethical system over the Venetians' casualness toward obligations. Portia, in effect, adopts Shylock's values.

VIL Other Legal

If all this were not enough to demonstrate the legal themes in The Merchant of Venice, Shakespeare scatters throughout the text many other legal references. On first hearing Shylock's loan terms, for example, Antonio's companion says: "I like not fair terms and a villain's mind." (I, iii, 182) Every lawyer who ever drew a contract knows the importance of good faith: an honest person acting in good faith will abide by the sense of a contract however expressed; a villain will look for a way out of a contract no matter how tightly drawn. A lawyer can learn a lot about contracts, what to do and what not to do, and how to make them airtight and to protect against this or that contingency. But a handshake between honorable people is often the best contract. And sometimes letting people off the hook and letting them out of a commitment can be far more effective than holding them to the commitment.

Other legal comments abound. "The devil can cite Scripture for his purpose." (I. iii, 98) "Truth will come to light . . . in the end truth will out." (II,ii,72-74) A few lines from the end, Portia even gives us her view of pretrial discovery:

And yet I am sure you are not satisfied
Of these events at full. Let us go in,
And charge us there upon inter'gatories,
And we will answer all things faithfully.

(V, i, 318-321)

Courthouses usually have messages carved on them about law, and The Merchant of Venice could supply two more: "For, as thou urgest justice, be assured / Thou shalt have justice more than thou desir'st," (IV, i, 326-327) and "You must take your chance." (II, i, 40)

VIII. Revenge Through Law

Another theme, revenge through law, is important for the legal themes in Shakespeare. It indelibly marks The Merchant of Venice, a "revenge play" (common enough in Elizabethan times) in which crucial dramatic action turns upon a major character's drive to get even. With Merchant, Shakespeare puts a special twist on the standard revenge play by having Shylock seek revenge within the bounds of the law. Shylock does not take the law into his own hands and carry out private vengeance on Antonio through private violence. Rather, Shylock takes him to court, where the money lender attempts to enforce his legal rights to the limit, without pity, and even though Antonio's death might result. The legal system, in Shylock's hands, itself becomes the means for revenge.

The play is quite explicit about the theme of vengeance through law. After Jessica runs away with Shylock's jewels and money, and after Antonio is in trouble, Shylock is whipped up into a vengeful frenzy. "Let him look to his bond," (III, i, 41-44) Shylock says over and over again, believing he still has one way of getting back at Antonio. When Shylock's colleague Tubal asks what good will enforcing the bond do, Shylock answers: "[I]t will feed my revenge." (III, i, 47-48)

Then immediately follows Shylock's "Hath not a Jew eyes?" speech, during which he makes even more clear his use of legal process to work revenge:

And if you wrong us, shall we not revenge? If we are like you in the rest, we will resemble you in that. If a Jew wrong a Christian, what is his humility? Revenge. If a Christian wrong a Jew, what should his sufferance be by Christian example? Why, revenge. The villainy you teach me I will execute, and it shall go hard but I will better the instruction.

(III, i, 58-66)

Just in case we somehow miss the point, Shakespeare has Shylock repeat it before the start of the trial scene. "I'Ll have my bond! Speak not against my bond! / I have sworn an oath that I will have my bond." (III, iii, 5-7)

Shylock's use of litigation for revenge has a modern ring to it. It is a late development in the long evolution of law from violent private revenge to public enforcement by disinterested persons at a trial at law. In contrast with early use of revenge as a substitute for law, Merchant depicts the more recent phenomenon of vengeance through law. Venice is cosmopolitan and civilized; it has laws and a legal system for resolving disputes. Venetians go to law instead of doing bodily harm to those of their neighbors against whom they have claims.

Still, the thin veneer of civilization hardly wipes out so strong and deep-seated an emotion as revenge. Wise politicians and lawmakers know this psychological fact and, acting on it, create institutions and encourage habits to provide socially acceptable and orderly ways for venting vengeful feelings. "Law channels rather than eliminates revenge," as Judge Posner puts it, "replaces it as system but not as feeling."²¹ Under the circumstances, nothing will mollify Shylock but revenge. Better it should be revenge through law than revenge as a substitute for law.

Despite its modern and salutary aspects, Shylock's use of law for revenge distresses us. It is as if Shylock is abusing modern law and even his own legal rights. He uses the means of the law for a bad end or purpose. In doing so, Shylock also does something nasty to himself, so misusing the law that he loses part of his mental and emotional balance and even some essential element of his humanity. Shylock is the embodiment of a character familiar to law offices today: the person obsessed with litigation. A victim of litigation psychosis, Shylock lives to inflict pain on his enemies through lawsuits. Any lawyer who has handled emotionally laden litigation—a bitter divorce case or a child custody battle or a pro se matter—knows the symptoms.

Shakespeare seems to take a dim view of Shylock's use of revenge through law. To be sure, one must always be careful when attempting to impute values or views to an author from something that author wrote in the realm of dramatic literature. Even so, and approaching the subject with diffidence, we can fairly conclude that Shakespeare rejects revenge in The Merchant of Venice. His portrayal of Shylock's ignoble quest through law, his handling of the trial scene, the very language and action all reflect a view of law in which the primitive impulse of revenge is disapproved. This theme, and the role of revenge in the evolution of law, will go on to figure prominently in later tragedies and histories, especially Hamlet and Julius Caesar.

IX. Classifications

Classifying The Merchant of Venice has always been difficult. Tradition lists it as a comedy, which would seem absurd unless comedy be defined as something apart from humor. Since convention requires of comedy only a sudden reversal of fate followed by a reconciliation of sorts, the play would be a comedy, though certainly a dark one. There is nothing funny about this play, and there is an apprehension of death that breaks all the rules. It is, truly speaking, neither a comedy nor a tragedy nor a history. It is a dramatic crystal of many legal issues, a rich text for a law school seminar. If a category is needed, let us invent one of legal parable.

As a legal parable, The Merchant of Venice may have influenced contemporary judges and changed the course of English legal history. King James I asked to see two performances of the play on two consecutive days. The leading modern champion of Shakespeare's impact on English jurisprudence—W. Nicholas Knight—insists that the 1616 case of Glanville v. Courtney shows the play's effect. In that case, which was a suit on a bond, Lord Coke, acting as Chief Justice of the common law courts, entered judgment for plaintiff. But the High Chancellor, Lord Ellesmore, issued an injunction to prevent enforcement of the bond. The result is considered to be a victory of equity over the common law, with the Crown siding with equity, just as the Duke did in Shylock v. Antonio.

Based on these facts, Knight speculates that the result in Glanville v. Courtney was due to The Merchant of Venice. If I understand Knight correctly, he is arguing that since Glanville was decided by judges who must have seen Merchant, then Merchant must have contributed to the legal result.²² Such an argument is difficult to respond to. Yes, it is possible, but no proof exists for it. I appreciate Knight's wonderful and contagious enthusiasm for Shakespeare and the law but would be more restrained and hedged in my conclusions. The highly speculative nature of Knight's-conclusions, provocative and fascinating though they may be, does not warrant the exaggerated style of certainty in which they are expressed.

Yet, others have sided with Knight on this point. A 19th century lawyer, on whose work Knight draws, also thought that the result in Glanville was due to Shakespeare's ideas. More recently, Harlan F. Stone, a justice of the Supreme Court for two decades in this century, once said that, "Often, in listening to The Merchant of Venice, it has occurred to me that Shakespeare knew the essentials of the contemporary conflict between law and equity."²³

Whatever the true impact upon 17th century lawyers of The Merchant of Venice, we can surely appreciate its power over us. We can feel the power of the theatrical moment in our professional lives. The play, we know, is about human character, but it is also about law: liberty of contract and its limits, law and discretion, the meaning of mercy, the legal symbolism of the casket game, equal protection, and other legal themes.

As we leave a spiritually liberating performance of The Merchant of Venice, we hear over and over again in our minds what Portia says to Shylock, and what Shakespeare means the whole play to say to all of us: "The law hath yet another hold on you." (IV, i ,360)

Notes

¹ A. D. Moody, Shakespeare: "The Merchant of Venice" (London: Edward Arnold Ltd., 1964), p. 61.

²See, e.g., Lawrence Danson, The Harmonies of "The Merchant of Venice" (New Haven: Yale University Press, 1977); Herbert Bronstein, "Shakespeare, The Jews and The Merchant of Venice," 20 Shakespeare Quarterly 10 (1969); Anthony Hecht, "The Merchant of Venice: A Venture in Hermeneutics," Obligati: Essays in Criticism (New York: Atheneum, 1986), pp. 140-229; Edgar Elmer Stoll, Shylock (reprinted in the Signet Classic Merchant of Venice, 1965), pp. 157-172.

³See, e.g., Moody, supra note 1; H. B. Charleton, Shakespearean Comedy (New York: McMillan, 1938), pp. 123-160; J. M. Murry, Shakespeare's Method: "The Merchant of Venice" (New York: Harcourt Brace, 1936), pp. 153-173; Judith Koffler, "Terror and Mutilation in the Golden Age," 5 Human Rights Quarterly 116 (1983).

⁴See, e.g., Rudolf von Jhering, Der Kampf um 's Recht (Vienna, 1886), translated in pertinent part in H. H. Furness, ed., The Merchant of Venice: A New Variorum Edition of Shakespeare (New York: Dover, 1964). Terry Eagleton, William Shakespeare (New York: Blackwell, 1986), pp. 36-37; Richard Weisberg, Poethics, And other Strategies of Law and Literature (New York: Columbia University Press, 1992), pp. 99-100.

⁵ Hecht, supra note 2 at 186-187.

⁶See, e.g., George W. Keeton, Shakespeare's Legal and Political Background (New York: Barnes & Noble, 1967), pp. 10-21.

⁷ For a recapitulation of legal descriptions of the bond, see O. Hood Phillips, Shakespeare and the Lawyers (London: Methuen, 1972), pp. 102-116; on the automatic nature of the forfeiture, see Keeton, supra note 6 at 136.

⁸See Weisberg, Poethics, supra note 4 at 95.

⁹Id.

¹⁰ M. E. Andrews, Law Versus Equity in "The Merchant of Venice" (Boulder: University of Colorado Press, 1965).

¹¹ Richard Posner, Law and Literature: A Misunderstood Relation (Cambridge: Harvard University Press, 1988), p. 97.

¹² Gertrude Himmelfarb, "Victorian Values/Jewish Values," 23 Commentary 28-29 (1990).

¹³Accord John Noonan, Bribes (Berkeley: University of California Press, 1984), pp. 323-25.

¹⁴ J. William Hazlitt, Characters of Shakespeare's Plays (New York: Dutton, 1969), p. 322.

¹⁵ Weisberg, Poethics, supra note 4 at 100.

¹⁶Id.

¹⁷See also the comment in Act Four of Timon of Athens: "Crack the lawyer's voice, that he may never more false title plead, Nor sound his quillets shrilly."

¹⁸ Peter J. Alscher, "The Merchant of Venice and the Problem of Antonio: Staging a Radical Resolution of the Trial Scene," 5 Cardozo Studies in Law and Literature 1 (1993).

¹⁹ John Paul Stevens, "The Shakespeare Canon of Statutory Construction," 140 University of Pennsylvania Law Review 1373, 1386 (1992).

²⁰ Weisberg, Poethics, supra note 4 at 93-104.

²¹ Posner, Law and Literature, supra note 11 at 33.

²² W. Nicholas Knight, Shakespeare's Hidden Life: Shakespeare at the Law: 1585-1595 (New York: Mason & Lipscomb, 1973), pp. 178-190, 280-86.

²³ J. K. Emery, "Preface" to Andrews, Law Versus Equity in "The Merchant of Venice, " supra note 10 at ix.