Empathy & the Rule of Law

Not to duplicate what’s surely been the subject of thousands of high school papers, and probably at least one Harold Bloom essay, but Shakespeare’s protagonists in The Merchant of Venice, performing now at the Public Theater’s Shakespeare in the Park program, get the Act IV, Scene 1 resolution of the Shylock/Antonio conflict precisely wrong. By way of background, Antonio, the eponymous merchant, secures a loan from Shylock, a Jewish moneychanger, by pledging as security a pound of his own flesh, due only in the event of default. Naturally, against all odds, Antonio defaults, and Shylock sues to gain his flesh.

This all culminates in a dramatic courtroom scene, where the Duke of Venice, and his assembled judges, beg Shylock not to pursue what is, by the strictest letter of the law, his: Antonio’s life. Shylock refuses, but Antonio is saved when a mysterious jurist asserts a technicality to defeat his claim, and, in what comes to resemble the legal equivalent of mob violence, strip Shylock of his property and forcibly convert him. Hmm.

As a matter of jurisprudence, this result ought to disappoint — and not just for the truly epic, anti-Semitic overkill. Shylock shouldn’t lose because defense counsel is more clever and splits finer hairs; he should lose because he’s wrong, and supervening notions of justice ought to defeat a technically lawful but morally deficient claim.

Although that statement will strike most as naïve, the law regularly provides for just such “outs.” A contract may be voidable where obtained by duress, where it results from an unconscionable process or creates an unconscionable result, or if it violates “public policy.” A foreign act or judgment may be denied comity where its enforcement would similarly violate public policy (this is the theory behind the Defense of Marriage Act; why “public policy” defeats the constitutional text, though, is another question entirely). And the state may by general (but not specific) law proscribe certain bargains, and therefore limit the right to contract. Some of these doctrines prove incredibly difficult to implement; accordingly, they see little application, not because we don’t trust their motivating theories, but because we can’t trust ourselves to implement them well. Nevertheless, they’re worthwhile tools, not just because they help jurists reach the right result in tough cases, but because by their use, they affirm the vital understanding that laws reflect but are not themselves morality (cf. Piso’s Justice).

Contra Republican talking points, appreciating this point is a vital part of the task of judging, and underlies some of the more important legal victories of the modern era. For example, it’s a politely kept secret that the Commerce Clause probably doesn’t, of its own force, support modern anti-segregation laws — but woe betide the judge who holds as much. Somehow, still, the importance of empathy, and the notion that justices ought to care about Justice writ large, remain controversial. Knowing this, it’s hard not to see Merchant of Venice as a missed opportunity. It’s a much better story, and says better things about us as a culture, if Antonio survives because of something more than a technicality. Of course, that would make good law, but it probably wouldn’t make good theater.


  1. I’d never thought of it that way…

  2. That “mysterious jurist” had a major conflict of interest in that case, no?

    I’m unable to find my copy of Merchant so I’m going by memory and correct me if I’m wrong, but didn’t Shylock list a litany of ways that Antonio personally had wronged him, right before going into “Hath not a Jew eyes?”. Would seem to me that might justify him wanting his pound of flesh and put him in the right.

    Then, that technicality… the technicality’s always struck me as flawed. The technicality’s that blood isn’t explicitly mentioned in the contract, and there’s no way to take the flesh (closest to the heart) without taking blood, the contract’s void. Isn’t a more accurate reading of “pound of flesh”, though, one that includes blood? After all, the blood and flesh are inseparable, and there’s no way to get the flesh without spilling the blood, so blood must implicitly be part of the flesh? Now, there’s some “public policy” mentioned about it being a crime for a Jew to spill Christian blood, but if a Jew wrong a Christian etc.

  3. I think it’s a mistake to focus too much on the legalities involved. Shakespeare’s not out to describe an actual legal system, but to tell a morality tale about a character who (because of pride and vengefulness) pursues the Law to excess and forgets about Mercy. Of course, it is poetic justice that he is then thwarted in turn by The Law, but that wouldn’t work if the rules involved were too obvious.

    We should also be careful not to overinterpret the anti-Semitic content. The characters of Shylock, Portia and Antonius are not so much meant as a reflection on how actual Christians and Jews behave, but rather (again in the tradition of medieval morality plays) as allegories. Judaism symbolises Law and Christianity symbolises Mercy, and in particular when Shylock is forced to convert to Christianity, that symbolises the victory of Mercy over Law.

    That’s a distinction which has pretty much been lost on later interpreters, of course, but I think that’s closer to the original intent.

  4. […] vote accordingly. Obama’s pick of Sonia Sotomayor looks equally brilliant, precisely for her power to empathize, as does his decision to follow her and guarantee a second female seat on the bench to balance out […]

%d bloggers like this: