Reading Law with The Merchant of Venice

Ask attorneys to identify Shakespeare’s greatest play about law and lawyers, and they will likely name The Merchant of Venice. Law plays a central role in Measure for Measure and features in other plays as well, notably Henry V and the less well-known King John. But no play captures lawyers’ imaginations like Merchant, with its climactic court hearing, its famous argument by Portia, and its meditation on justice and mercy in a legal system. Four hundred years after Shakespeare invented him, law professors and jurists continue to moot Shylock’s case. Law reviews devote symposia to Merchant and courts quote the play repeatedly, not only for rhetorical decoration, but in support of substantive rulings.

Merchant fascinates lawyers. Yet, in legal terms, the play is preposterous. The basic assumption on which the plot turns, that Shylock has a legal right to enforce his contract and collect a pound of flesh from Antonio, is absurd, as is Portia’s argument that, if it were enforceable, the contract would not allow Shylock to shed a drop of blood. Moreover, the idea that Christians would find giving or receiving interest on loans illegitimate was already an anachronism by Shakespeare’s time. As Harold Berman makes clear in his majestic history, Law and Revolution, both canon law and the law merchant had long allowed for reasonable interest on loans. “Usury” referred to excessive interest, which reflected the sin of avarice.

Shakespeare, who elsewhere demonstrates a thorough knowledge of law, surely understood all this. But he had other goals in this play. Even though Shylock’s case against Antonio makes no sense as a legal matter, it makes for great theater, and it gives Shakespeare a chance to explore an enduring and often bitter theological debate. Moreover, it allows him to reflect, pessimistically, on the capacity of law to transcend cultural differences and unite antagonistic worldviews in a common community. Merchant continues to preoccupy lawyers precisely because of what it suggests about law’s limits.

As the play begins, a Venetian named Bassanio wants to woo the fabulously rich Portia. To do this, he needs money, but he has neither cash nor credit. So, he asks his friend Antonio to borrow the money for him from the Jewish moneylender, Shylock. Antonio and Shylock hate one another, the former because Shylock charges interest on loans, which as a Christian Antonio contemns, the latter because of the mistreatment he has suffered from Antonio and other Christians and because Antonio does not charge interest, which hurts Shylock’s business. Nonetheless, Shylock agrees to lend Antonio the money in exchange for Antonio’s promise to give him a pound of his flesh if he cannot make good on the loan—“a merry sport,” Shylock reassures him.

When the time comes to pay, Antonio lacks the money, and Shylock, who by now has suffered the added injury of seeing his only daughter elope with a Christian, insists on enforcing his bond. This puts the Venetian state in a difficult spot. Venice is a commercial center with traders from many different nations and cultures. The only thing that holds these diverse peoples together is law, and specifically, contract law. If word gets out that Venice does not enforce contracts—even contracts like Shylock’s—traders will take their business elsewhere. Antonio explains to a friend that Venice has no choice but to enforce the agreement:

The Duke cannot deny the course of law,
For the commodity that strangers have
With us in Venice, if it be denied,
Will much impeach the justice of the state,
Since that the trade and profit of the city
Consisteth of all nations.

In court, the Duke of Venice calls on Portia, disguised as a “young and learned doctor” of the law, to resolve the case. Portia remonstrates with Shylock, telling him that even though his legal claim is valid, he should forgive Antonio’s debt. In response to her famous plea for clemency (“[t]he quality of mercy is not strained”), Shylock insists on his rights, whereupon Portia springs a trap. Shylock can have what his contract allows, but only what his contract allows, a pound of flesh exactly, and not a drop of blood with it—an obvious impossibility. Moreover, Venetian law provides that an alien who threatens the life of a citizen, as Shylock has done, is punishable by death. The Duke allows Shylock to live on condition that he become a Christian, an act that Elizabethans, for whom Shylock was a comic villain, would likely have seen as an expression of Christian forgiveness.

The ugly treatment of Shylock by the play’s Christians makes contemporary audiences cringe. Merchant is problematic for another reason as well. This play about law turns on a legal absurdity. Shylock’s contract would be void ab initio—invalid from the beginning. A contract calling for death in case of breach would be unenforceable as against good faith and public order; the agreement might also be seen as a joke that did not contemplate legal enforcement, something suggested by Shylock’s own initial characterization of it. Portia’s resolution likewise is preposterous. A reasonable interpretation of the contract would allow Shylock whatever were naturally incidental to its performance—and you can’t take flesh without shedding blood. Portia’s ruling isn’t wise (“[a] Daniel come to judgment”), it’s an obvious trick.  

Shakespeare means to ask whether the Venetian system can work where intercommunal divisions concern bedrock beliefs and ways of life. His answer is not hopeful.

Shylock’s case, however, allows Shakespeare to explore (and take sides in) an old theological conflict between two great religions. The conflict cannot be fully explored here, but, briefly, Christians have historically distinguished Christianity from Judaism by arguing that theirs is a religion of “grace” as opposed to “law.” In Christian understanding, people are put right with God through the mercy of Jesus Christ, the Son of God, who forgives the sins of those who believe in Him—as opposed to Judaism, which, again in Christian telling, mistakenly strives for righteousness under God’s law. Thus, in court, Portia tells Shylock:

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.

Shylock’s legalism is an offensive caricature of Judaism, which also teaches forgiveness and mercy as essential values. (For that matter, Portia’s antinomianism is a distortion of Christianity, which also values law, and the behavior of Christians in the play gives the lie to her commendation of Christian mercy). Perhaps Shakespeare, who apparently had never met a Jew, misunderstood the religion. Perhaps he was simply an anti-Semite—though Shylock, unlike other Elizabethan stage Jews, has redeeming qualities, and the Christians in Merchant, like the fortune-hunting Bassanio, come off rather badly. In his great essay on the play, “On Christian and Jew,” Allan Bloom suggests a more plausible explanation. Shakespeare exaggerates the differences between Christianity and Judaism because he has a point to make about the limits of tolerance in a political community.

For the people of Shakespeare’s day, Bloom writes, Venice represented the hope that society could transcend religious and cultural differences through commerce—or, rather, through commercial law. Classical liberal thinkers would call later it the doux commerce thesis: allow people to trade freely with each other and they would ignore religious and other differences, which get in the way of profit, and live together peaceably. The give-and-take of the market would train people to cooperate with one another and forego proselytizing. All that was necessary was that the state enforce people’s contracts on equal terms, neutrally and fairly, without giving one group or another the upper hand. Everything else would follow.

Venice was less serene and indifferent to religion than portrayed. But, as a symbol, the city was important. And by drawing the conflict as starkly as he does, Shakespeare means to ask whether the Venetian system can work where intercommunal divisions concern bedrock beliefs and ways of life. His answer is not hopeful. The dispute between Antonio and Shylock over charging interest reflects a deeper conflict about ultimate values that commerce and commercial law cannot resolve. “The law of Venice can force” the two men “to a temporary truce,” Bloom writes, “but in any crucial instance the conflict will re-emerge, and each will try to destroy the spirit of the law; for each has a different way of life which, if it were universalized within the city, would destroy that of the other. They have no common ground.”

Where such common ground does not exist, the law cannot create it. Law, even a neutral law of contracts, inevitably requires judgment: Which agreements should be enforced, and which should not? And judgment inevitably depends on the values people bring to the law from the wider culture. Where people share values, law does a tolerably good job resolving their disputes. One party wins and the other loses, but both can accept the legitimacy of the system. Where moral divisions run deep and the stakes are high, this is not possible. Law alone cannot persuade people to accept decisions that violate their most basic sense of right and wrong.

At the close of the hearing, Shylock is led away to become a Christian. Antonio receives half of Shylock’s goods to use in trust for Shylock’s new son-in-law and daughter, and Shylock is forced to leave the rest of his estate to the couple on his death. Portia and Bassanio begin their married life, with Bassanio as the new lord of Portia’s estate in Belmont. Commerce in Venice resumes, but outsiders have learned an important lesson. They can make money in the city, but they will never be part of a true community, which requires more than a shared commitment to buying and selling.

Real-world lawyers, if they pay attention, will have learned a lesson, too. In moments of deep social crisis, when rival communities with incompatible worldviews face off against one another, one cannot put much hope in law’s capacity to settle the conflict neutrally, in a way everyone can accept. In such circumstances, the law may proclaim its impartiality, but that will be a pretense; one worldview or the other must necessarily prevail. “The court awards it, and the law doth give it”—even if that requires a trick like Portia’s.

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