The Court of Literature

by Eric A. Posner

New Republic
April 14, 2011

The law plays an unacknowledged role in much of Shakespeare’s work. Trials—real trials, quasi-trials, mock trials—recur. In many plays, characters refer to contemporary laws and legal institutions; and the plays raise larger questions about justice and the workings of the law. Lawyers, then, can help to illuminate Shakespeare’s plays, and many have done so by explaining the early modern legal background and Shakespeare’s exploitation of persistent legal puzzles for dramatic purposes.

Kenji Yoshino, a law professor at NYU, argues that Shakespeare’s plays contribute to modern debates about law and justice, and he draws crisp lessons from twelve of those plays. He argues that Titus Andronicus teaches us that in a world devoid of the rule of law, individuals protect their interests by taking revenge against those who violate them—and that revenge begets revenge in a cycle of retribution that spins out of control and throws society into chaos. Portia’s character in The Merchant of Venice illustrates the hazards of legal rhetoric: lawyers can manipulate law for private ends, subverting justice and social order. Measure for Measure proves that legal decisionmakers should avoid the two extremes of rigid legalism and excessive mercy, and strive to take a path down the middle. Othello illustrates the hazards of legal fact-finding; the four Henry plays the fallibility and the trickery of sovereigns; and Macbeth the fallacy of natural justice—the view that justice will prevail even without human intervention. Hamlet warns that intellectuals make bad rulers because their idealism interferes with the pragmatics of governance. King Lear teaches us of “the unavoidable injustice of death.” The Tempest argues that great leaders voluntarily relinquish power.

The quality of Yoshino’s readings varies considerably. In general, he does better at the retail level—teasing out the meanings of complex passages—than at spinning out overall readings that are both original and persuasive. Scholars have long noted that anxiety about the absence of the rule of law animates revenge tragedies such as Titus Andronicus, and the legal themes in Measure for Measure have fascinated lawyers for decades. Some of Yoshino’s other readings display more originality but they often seem strained. It is true that Hamlet is an intellectual and that he temporizes before killing Claudius, but he does not resemble the utopians to whom Yoshino likens him—he does not, for example, harbor any particular vision for Denmark that he hopes to implement come what may. More successfully, Yoshino argues that Othello illustrates the value of legal processes by contrasting the impartial deliberations of a jury-like council of Venetian nobles, which acquits Othello of the charge of witchcraft, and the wild accusations of Othello himself, who falsely convicts Desdemona of adultery.

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