Craddock on Civic Friendship in the Postmodern Polis: Law as Mediator in Shakespeare's Merchant of Venice

Joshua J. Craddock, Harvard Law School, Students; James Wilson Institute for Natural Rights and the American Founding, is publishing Civic Friendship in the Postmodern Polis: Law as Mediator in Shakespeare's Merchant of Venice in the Journal of Law & Civil Governance at Texas A&M. Here is the abstract.

In Merchant of Venice, Shakespeare explores whether commercial republicanism can alone sustain civic virtue. Putting Shakespeare into conversation with pillars of American political thought, Merchant of Venice seems to support John Adams’ contention that a republican constitution is “made only for a moral and religious people” and “is wholly inadequate to the government of any other.” Economic liberty as an end unto itself cannot form the basis of a coherent political order and must ultimately erode public-spiritedness. By examining the character of the Venetian regime and the irreconcilable differences between its citizens regarding the nature of the Good, the attentive reader can identify barriers to civic friendship and evaluate whether law can serve as a mediating influence against what Publius calls “faction” in The Federalist. Shakespeare suggests that law’s mediating influence on faction is at best tenuous and follows the Aristotelean belief that civic friendship depends in large part on substantial agreement about first principles. These themes find their echoes in American political thought and remain deeply relevant to the legal and political challenges facing re-publican self-government today.

Download the article from SSRN at the link.

Craddock on Civic Friendship in the Postmodern Polis: Law as Mediator in Shakespeare's Merchant of Venice @joshjcraddock @Harvard_Law

Joshua J. Craddock, Harvard University Law School, James Wilson Institute for Natural Rights and the American Founding, is publishing Civic Friendship in the Postmodern Polis: Law as Mediator in Shakespeare's Merchant of Venice in the Texas A&M Journal of Law & Civil Governance. Here is the abstract.

In Merchant of Venice, Shakespeare explores whether commercial republicanism can alone sustain civic virtue. Putting Shakespeare into conversation with pillars of American political thought, Merchant of Venice seems to support John Adams’ contention that a republican constitution is “made only for a moral and religious people” and “is wholly inadequate to the government of any other.” Economic liberty as an end unto itself cannot form the basis of a coherent political order and must ultimately erode public-spiritedness. By examining the character of the Venetian regime and the irreconcilable differences between its citizens regarding the nature of the Good, the attentive reader can identify barriers to civic friendship and evaluate whether law can serve as a mediating influence against what Publius calls “faction” in The Federalist. Shakespeare suggests that law’s mediating influence on faction is at best tenuous and follows the Aristotelean belief that civic friendship depends in large part on substantial agreement about first principles. These themes find their echoes in American political thought and remain deeply relevant to the legal and political challenges facing re-publican self-government today.

Download the article from SSRN at the link.

Rose on Property and Literature: the View From Shakespeare's Venice @uarizonalaw @ArsScripta @@ElgarPublishing @Elgar_Law @

Carol M. Rose, University of Arizona College of Law, is publishing Property and Literature: the View From Shakespeare’s Venice in The Elgar Concise Encyclopedia of Law and Literature(Robert Spoo & Simon Stern eds., 2024). Here is the abstract.

This entry explores property issues in The Merchant of Venice, and in particular the Merchant’s posture toward important claims that have been made for property since the Enlightenment: that secure property enhances social wealth, that property protects individual autonomy, and that property permits the projection of personal projects in the world. The conclusion is that Merchant critiques each from the perspective of considerably older views of the role of property in society. The entry also discusses another claim for property and commerce that some have found in Merchant—that property and commerce soften manners and promote cooperation--but concludes that Merchant does not address that claim despite its setting in the then highly commercial city of Venice.

Download the essay from SSRN at the link.

ICYMI: Charles Ross, Elizabethan Literature and the Law of Fraudulent Conveyance (Routledge, 2003) @routledgepublishing

ICYMI: Charles Ross, Purdue University, Elizabethan Literature and the Law of Fraudulent Conveyance (Routledge, 2003).

This book investigates the origins, impact, and outcome of the Elizabethan obsession with fraudulent conveyancing, the part of debtor-creditor law that determines when a court can void a transfer of assets. Focusing on the years between the passage of a key statute in 1571 and the court case that clarified the statute in 1601, Charles Ross convincingly argues that what might seem a minor matter in the law was in fact part of a wide-spread cultural practice. The legal and literary responses to fraudulent conveyancing expose ethical, practical, and jurisprudential contradictions in sixteenth-century English, as well as modern, society. At least in English Common Law, debt was more pervasive than sex. Ross brings to this discussion a dazzling knowledge of early modern legal practice that takes the conversation out of the universities and Inns of Court and brings it into the early modern courtroom, the site where it had most relevance to Renaissance poets and playwrights. Ross here examines how during the thirty years in which the law developed, Sidney, Spenser, and Shakespeare wrote works that reflect the moral ambiguity of fraudulent conveyancing, which was practiced by unscrupulous debtors but also by those unfairly oppressed by power. The book starts by showing that the language and plot of Shakespeare's Merry Wives of Windsor continually refers to this cultural practice that English society came to grips with during the period 1571-1601. The second chapter looks at the social, political, and economic climate in which Parliament in 1571 passed 13 Eliz. 5, and argues that the law, which may have been used to oppress Catholics, was probably passed to promote business. The Sidney chapter shows that Henry Sidney, as governor of Ireland (a site of religious oppression), and his son Philip were, surprisingly, on the side of the fraudulent conveyors, both in practice and imaginatively (Sidney's Arcadia is the first of several works to associate fraudulent conveyancing with the abduction of women). The fourth chapter shows that Edmund Spenser, who as an official in Ireland rails against fraudulent conveyors, nonetheless includes a balanced assessment of several forms of the practice in The Faerie Queene. Chapter five shows how Sir Edward Coke's use of narrative in Twyne's Case (1601) helped settle the issue of intentionality left open by the parliamentary statute. The final chapter reveals how the penalty clause of the Elizabethan law accounts for the punishment Portia imposes on Shylock at the end of The Merchant of Venice. The real strength of the book lies in Ross's provocative readings of individual cases, which will be of great use to literary critics wrestling with the applications of legal theory to the interpretation of individual texts. This study connects a major development in the law to the literature of the period, one that makes a contribution not only to the law but also to literary studies and political and social history.

 

The Library of Congress, the Law Library of Congress, and the Continuing Relevance of "The Merchant of Venice" @librarycongress @LawLibCongress @WFULawSchool

Ellen Terrell of the Library of Congress discusses real life merchants of Venice on the Library of Congress Blog here. The post is related to other Merchant of Venice posts dedicated to Shakespearian events in 2016, and some taking place this year, including a program discussing the history of the Jewish Ghetto of Venice, taking place today, February 21st, and hosted by the Law Library of Congress. 

The program includes talks by Benjamin Ravid, on the European legal context surrounding the establishment and continuation of the ghetto, David Malkiel, who will discuss Jewish institutions of self-government within the ghetto, and Dick Schneider. who will discuss Shakespeare's play The Merchant of Venice.

Del Gobbo on Law and Feminism in The Merchant of Venice @danieldelgobbo

Daniel Del Gobbo has published Portia in the Same Voice?" Law and Feminism in The Merchant of Venice at SexText: The SDS Blog.

Newman on the Legality of the Agreement in The Merchant of Venice @WFULawSchool

Joel S. Newman, Wake Forest University School of Law, has published If Shylock Had a Lawyer at 7 Wake Forest J. L. & Pol'y S. S. 21 (2016). Here is the abstract.

In Shakespeare’s “Merchant of Venice,” the “pound of flesh” agreement was notarized. Presumably, pursuant to European custom, the notary would have drafted the agreement. Had the events of the play taken place today, any notary who drafted such an agreement would be in violation of Italian law. Had Shylock consulted a modern American lawyer, drafting the agreement, or even agreeing to the representation in the first place, would have been a violation of the ABA Model Rules of Professional Conduct.

Download the article from SSRN at the link.

Zucca on Legal, Social, Political, and Economic Conflicts in the Merchant of Venice

Lorenzo Zucca, King's College Lond, Dickson Poon School of Law, has published Global Crisis in Shakespeare: Legal, Social, Political and Economic Conflicts in the Merchant of Venice as TLI Think! Paper 15/2016. Here is the abstract.

Shakespeare’s Venice is the prototype of a global city: open to trade and business, it attracts a great flux of money and people. Its laws have to facilitate trade and provide incentives for business interactions. They also have to punish swiftly those who do not respect business contracts to maintain an impeccable image of a trade-based city state. Shakespeare uses this image of Venice to highlight a series of conflicts arising in the rest of Europe and in particular in England. Europe is moving from a class-based Aristocratic society to a trade-based bourgeois society, this creates a great number of uncertainties. Moreover, law is administered by a chaotic number of jurisdictions (in England, common law courts are working side by side with equity courts and ecclesiastical courts), which also increases legal uncertainty as to whom exercises justice and according to which procedures. Last but not least, Europe is plagued by religious conflicts between Catholics and Protestants as well as between Christians and non-Christians. Shylock embodies the threat at the legal, social, economic, and religious level. The Merchant of Venice has never been as topical for our contemporary societies where law, religion, economics and politics are undergoing deep transformations and uncertainty reigns sovereign.

Download the article from SSRN at the link.

A New Book On Law and Literature

Our good friend Jose Calvo Gonzalez tells us of a newly published book on law and literature. Os Modelos de Juiz: Ensaios de Direito e Literatura (André Karam Trindade e Lenio Luiz Streck, eds., Editora Atlas, São Paulo, 2015) is now available. Lots of interesting essays in this volume, including pieces on Tolstoy and Law, theoretical pieces on judging, and pieces on Brecht, Hamlet and The Merchant of Venice. More information is available at Professor Calvo's blog here.

A New Book On Justice and Injustice

New from Routledge



The Concept of Injustice
By Eric Heinze
Published October 24th 2012 by Routledge--218 pages

The Concept of Injustice challenges traditional Western justice theory. Thinkers from Plato and Aristotle through to Kant, Hegel, Marx and Rawls have subordinated the idea of injustice to the idea of justice. Misled by the word’s etymology, political theorists have assumed injustice to be the sheer, logical opposite of justice. Heinze summons ancient and early modern texts, philosophical and literary, with special attention to Shakespeare, to argue that injustice is not primarily the negation, failure or absence of justice. It is the constant product of regimes and norms of justice. Justice is not always the cure for injustice, and is often its cause.

Shylock Today

Stephen Marche reviews a new production of The Merchant of Venice at the Globe Theater (London) and discusses Shylock's eternal meaning in today's politically charged atmosphere.

Portia's View of Justice in "The Merchant of Venice"

Roberta Linciano, University of Salento, has published "'Is that the law?': Portia's Mockery of Justice in The Merchant of Venice," in the Italian Society for Law and Literature (January 2010). Here is the abstract.

In this paper I examine the role performed by the disguised lawyer Portia during the trial Shylock vs. Antonio in Shakespeare’s The Merchant of Venice. With reference to the social, political and economic background of the Elizabethan age, I will explore Portia’s conception of justice, trying to assess if she acts as a loyal and equitable judge or as a vile impostor and investigating to what extent her conduct can be regarded as a model by modern lawyers or as a mere play upon the words.

While the paper should be available for download via SSRN, I could not get the download to work.

Portia's Conception of Justice

Roberta Linciano, University of Salento, has published 'Is that the Law?': Portia's Mockery of Justice in The Merchant of Venice as an Italian Society for Law and Literature (ISLL) Paper Essay. Here is the abstract.

In this paper I examine the role performed by the disguised lawyer Portia during the trial Shylock vs. Antonio in Shakespeare’s The Merchant of Venice. With reference to the social, political and economic background of the Elizabethan age, I will explore Portia’s conception of justice, trying to assess if she acts as a loyal and equitable judge or as a vile impostor and investigating to what extent her conduct can be regarded as a model by modern lawyers or as a mere play upon the words.

Download the essay from SSRN at the link. (NB: The essay is in Italian).

Shakespeare on Today's Financial Crisis

Nate Oman writes about the current financial crisis and the Merchant of Venice over at Concurring Opinions. Professor Oman begins, "Over the weekend, I re-read A Merchant of Venice, and I was struck by the fact that Shakespeare manages to include in the play virtually every element of the current financial crisis." Good reading (in several senses of the phrase).

The Importance of Choosing Literary References Wisely

Over at WSJ blog, Dan Slater writes about a Fair Housing Act case involving a condo association that prohibited all objects in hallways. A Jewish resident challenged the rule under the Fair Housing Act because his mezuzah was removed, claiming the rule discriminated against his religion. The 7th Circuit held for the condo association, concluding that the rule was "neutral with respect to religion" since it applied to all objects.

In dissent, Judge Wood noted a very unwise use of a Shakespearian reference in the Defendants' brief:

Indeed, especially given the fact that the question in this case is whether a trier of fact could conclude that the defendants were intentionally discriminating against the Blochs, it was shocking to read at the end of their supplemental brief that “[t]hroughout this matter, Plaintiffs have been trying to get their ‘pound of flesh’ from Defendants due to personal animosity between Lynne and Frischholz.” Perhaps the defendants have not read Shakespeare’s Merchant of Venice lately and thus failed to recall that the play is about a bitter Jewish moneylender, Shylock, who agreed to loan funds to a man he loathed (Antonio—who spit on him because he was Jewish) only upon a promise that if the loan was not paid in time, Shylock would be entitled to carve a pound of flesh from Antonio. At the end of the play, after the disguised Portia defeats the contract by pointing out that Shylock is not entitled to shed any blood while he takes his pound of flesh, Shylock is punished by losing half of his lands and being forced to convert to Christianity. This is hardly the reference someone should choose who is trying to show that the stand-off about Hallway Rule 1 was not because of the Blochs’ religion, but rather in spite of it.

Cross-posted at Concurring Opinions

Weisberg on the Merchant of Venice

Richard Weisberg, Cardozo Law School, has published "The Concept and Performance of "The Code" in The Merchant of Venice" as Cardozo Legal Studies Research Paper No. 229. Here is the abstract.

This essay elaborates on several prior endeavors that explored the bonding of Portia and Shylock in the last two scenes of The Merchant of Venice. Both characters revere codes, in contradistinction to the insider male world of Venice, which easily traduces promises, oaths, and laws anytime the fluid situation so demands. Portia can do this, too; she plays both with her father's testamentary code and with the Shylock-Antonio contract. The trial scene as it progresses, however, teaches her the costs of such (comedic) playfulness. She responds with special antipathy when Antonio - asked to do mercy to Shylock - instead cruelly manipulates the Alien Statute utterly to destroy the Jew. By the time she returns to Belmont in Act V, she has learned from Shylock that the marriage code, symbolized by the ring, can indeed be honored. For this to happen in her own marriage, however, she must rid her husband and herself of the baleful mediation of Antonio.

Download the entire paper from SSRN here.