Nearly every English-speaking lawyer has heard about Shakespeare. Merchant of Venice. MerchantOne of Shakespeare’s most “problem plays”. It’s not a very good comedy. The play’s Christians make Shylock, the Jewish moneylender, look awful. The central plot device, which is also absurd, is even worse. Shylock’s agreement with Antonio would require Antonio to forfeit “a penny of flesh” if he breaches it. Ab initio null. It is completely unbelievable that the entire cast acts as if the Venice laws (or any other country) would honour such a contract. Act IV is a great scene that features Portia’s famous argument as well as Shylock’s tragic downfall. It is absurd as a legal issue.
But lawyers should be aware of this. MerchantThis is precisely what the play shows us about law’s limits. In an essay posted at the Law & Liberty site, I explain why. Venice, for Shakespeare’s time, was the commercial republic. It was where different cultures could come together to do business and learn tolerance. A supposedly neutral contract law was the glue that held everything together. It was believed that a neutral law of contract could help to displace more conflicts and create a peaceful community.
As Allen Bloom observed, Merchant This theory is what later writers called the doux commerceTheses cannot work when there is deep social division
Venice was less serene and indifferent to religion than portrayed. However, Venice was important as a symbol. Shakespeare draws the conflict so starkly that he asks if the Venetian system is able to work in an area where the intercommunal divisions are about bedrock beliefs or ways of living. He isn’t optimistic. Antonio and Shylock are at odds over the charging of interest. This is a conflict that neither commerce nor commercial law can resolve. Bloom wrote that “the law of Venice” can “force” them to a temporary truce, but in every crucial instance, the conflict will reemerge and each will attempt to destroy its spirit. Each has their own way of living which, if universalized within the city would be destructive of the other. Both men have little in common.
If there is no such common ground, law cannot make it. Even if there is a neutral law on contracts, it requires judgement: What agreements should be made and what should they not? Judgement is dependent on what values are brought to the law by people from other cultures. Law does an acceptable job of settling disputes where people have similar values. While one party may win, the other can lose. However, both parties can accept that the system is legitimate. This is impossible when moral divides and stakes are deep. People cannot be persuaded by law to agree with decisions that are contrary to their basic senses of right or wrong.
Shylock leaves the hearing to follow the call of Christ. Antonio gets half of Shylocks goods. Shylock leaves the remainder to Shylock and his new daughter-in-law. Portia and Bassanio start their marriage, Bassanio becoming the new lord over Portia’s Belmont estate. The commerce in Venice is back, but those outsiders are learning a valuable lesson. Although they may make money in Venice, it is not possible to be part of the true community. It requires more than just a commitment to selling and buying.
The entire essay can be viewed here.