Shakespeare and the Law

A Conversation among Disciplines and Professions

Bradin Cormack, Martha C. Nussbaum, Richard Strier, Bradin Cormack, Martha C. Nussbaum, Richard Strier

• Publisher: University of Chicago Press
• Year: 2013
• ISBN:
  9780226924946
• Topic: Littérature
• Subtopic: Critique littéraire

William Shakespeare is inextricably linked with the law. Legal documents make up most of the records we have of his life, and trials, lawsuits, and legal terms permeate his plays. Gathering an extraordinary team of literary and legal scholars, philosophers, and even sitting judges,   Shakespeare and the Law demonstrates that Shakespeare's thinking about legal concepts and legal practice points to a deep and sometimes vexed engagement with the law's technical workings, its underlying premises, and its social effects.The book's opening essays offer perspectives on law and literature that emphasize both the continuities and contrasts between the two fields. The second section considers Shakespeare's awareness of common law thinking and common law practice, while the third inquires into Shakespeare's general attitudes toward legal systems. The fourth part of the book looks at how law enters into conversation with issues of politics and community, whether in the plays, in Shakespeare's world, or in our own world. Finally, a colloquy among Supreme Court Justice Stephen Breyer, Judge Richard Posner, Martha C. Nussbaum, and Richard Strier covers everything from the ghost in  Hamlet  to the nature of judicial discretion.

NOTES

Introduction: Shakespeare and the Law

1. On property law in relation to Hamlet (and the grave), see Margreta de Grazia, Hamlet without Hamlet (Cambridge: Cambridge University Press, 2007), chapter 5.

2. Citations to Shakespeare in the introduction are to William Shakespeare, The Complete Works, ed. Stephen Orgel and A. R. Braunmuller (New York: Penguin, 2002).

3. The satire against law’s formalisms for destroying the real grounds for human relation is a long-standing theme in literary encounters with the law. On the question in relation to an earlier historical moment, see Richard Firth Green, A Crisis of Truth: Literature and Law in Ricardian England (Philadelphia: University of Pennsylvania Press, 1999).

4. The voucher was used to break an entail. For a short account of the fiction, see B. J. Sokol and Mary Sokol, Shakespeare’s Legal Language: A Dictionary (London: Continuum, 2004), 400–402.

5. An excellent index and guide to the legal terminology that Shakespeare uses is Sokol and Sokol, Shakespeare’s Legal Language. For Shakespeare’s voluminous response to property law, see especially Paul Clarkson and Clyde Warren, The Law of Property in Shakespeare and Elizabethan Drama (Baltimore: Johns Hopkins University Press, 1942).

6. Recent collections on Shakespeare include Constance Jordan and Karen Cunningham, eds., The Law in Shakespeare (Houndmills, UK: Palgrave Macmillan, 2007); Paul Raffield and Gary Watt, eds., Shakespeare and the Law (Oxford: Hart, 2008). More generally, see Lorna Hutson and Victoria Kahn, eds., Rhetoric and Law in Early Modern Europe (New Haven, CT: Yale University Press, 2001); Erica Sheen and Lorna Hutson, eds., Literature, Politics, and Law in Renaissance England (Houndmills, UK: Palgrave Macmillan, 2005); Dennis Kezar, ed., Solon and Thespis: Law and Theater in the English Renaissance (Notre Dame, IN: Notre Dame University Press, 2007).

7. On the Inns of Court in relation to London literary production, see Philip J. Finkelpearl, John Marston of the Middle Temple: An Elizabethan Dramatist in His Social Setting (Cambridge, MA: Harvard University Press, 1969). See also the essays collected in The Intellectual and Culture World of the Inns of Court, ed. Jayne Archer, Elizabeth Goldring, and Sarah Knight (Manchester, UK: Manchester University Press, 2011). There is a close connection between dramatic fictions and the fictive cases used in lawyers’ mooting at the Inns of Court. See Karen Cunningham, Imaginary Betrayals: Subjectivity and the Discourses of Treason in Early Modern England (Philadelphia: University of Pennsylvania Press, 2002), chapter 1; Karen Cunningham, “‘So Many Books, So Many Rolls of Ancient Time’: The Inns of Court and Gorboduc,” in Kezar, Solon and Thespis, 197–217.

8. The ecclesiastical jurisdiction is not treated at length in the present volume. On Shakespeare’s interest in marriage law, see B. J. Sokol and Mary Sokol, Shakespeare, Law, and Marriage (Cambridge: Cambridge University Press, 2003). On Shakespeare’s treatment of slander and defamation, which sat between the common-law and ecclesiastical jurisdictions, see Ina Haberman, Staging Slander and Gender in Early Modern England (Aldershot, UK: Ashgate, 2003), esp. chapter 3 and chapters 1–2 on Romeo and Juliet and Othello; M. Lindsay Kaplan, The Culture of Slander in Early Modern England (Ithaca, NY: Cornell University Press, 1997), esp. chapter 4 on Measure for Measure.

9. On rhetoric and drama, see Joel Altman, The Tudor Play of Mind: Rhetorical Inquiry and the Development of Elizabethan Drama (Berkeley: University of California Press, 1976). On rhetorical circumstance in relation to equity and equitable interpretation, see Kathy Eden, Poetic and Legal Fiction in the Aristotelian Tradition (Princeton, NJ: Princeton University Press, 1986); Mark Fortier, The Culture of Equity in Early Modern England (Aldershot, UK: Ashgate, 2005), esp. chapter 4 on Measure for Measure and The Merchant of Venice. For forensic rhetoric and the literary representation of inferential thinking and proof, see Lorna Hutson, The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama (Oxford: Oxford University Press, 2007).

10. For Shakespeare’s interest in contract law, see, for example, Andrew Zurcher, “Causes and Ends: The Fatalism of The Comedy of Errors,” in Raffield and Watt, Shakespeare and the Law, 22–37. For Shakespeare’s comic recasting of the fraudulent conveyance of property in The Merry Wives of Windsor, see Charles Ross, Elizabethan Literature and the Law of Fraudulent Conveyance: Sidney, Spenser, and Shakespeare (Aldershot, UK: Ashgate, 2003).

11. For property law in relation to possession and dispossession in King Lear, see Heather Dubrow, “‘They took from me the use of mine own house’: Land Law in Shakespeare’s Lear and Shakespeare’s Culture,” in Kezar, Solon and Thespis, 81–98. On Shakespeare’s treatment of uses, an early form of property trust, see Brian Jay Corrigan, Playhouse Law in Shakespeare’s World (Madison, NJ: Fairleigh Dickinson University Press, 2004). On Shakespeare’s treatment of future interests in land (such as reversions and contingent remainders), see Bradin Cormack, “Shakespeare Possessed: Legal Affect and the Time of Holding,” in Raffield and Watt, Shakespeare and the Law, 83–100.

12. On property in relation to the institution of commercial theater and to creative labor itself, see Erica Sheen, Shakespeare and the Institution of Theatre (Basingstoke, UK: Palgrave Macmillan, 2009).

13. On Shakespeare’s legal thinking about the state, see, for example, Constance Jordan, Shakespeare’s Monarchies: Ruler and Subject in the Romances (Ithaca, NY: Cornell University Press, 1997); Paul Raffield, Shakespeare’s Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law (Oxford: Hart, 2010). On legal citizenship in Shakespeare, see Julia Reinhard Lupton, Citizen Saints: Shakespeare and Political Theology (Chicago: University of Chicago Press, 2005). For a related argument confined to The Merchant of Venice, see also Janet Adelman, Blood Relations: Christian and Jew in “The Merchant of Venice” (Chicago: University of Chicago Press, 2008).

14. On Shakespeare’s Cymbeline and Pericles in relation to Scotland and international jurisdictions, see Bradin Cormack, A Power to Do Justice: Jurisdiction, English Literature, and the Rise of Common Law, 1509–1625 (Chicago: University of Chicago Press, 2007), chapters 4 and 5; also Brian C. Lockey, Law and Empire in English Renaissance Literature (Cambridge: Cambridge University Press, 2006), chapter 6.

15. On Shakespeare’s representation of agency and of action itself (the very stuff of drama) in relation to the law’s conceptualization of intentional action in homicide and contractual promises, see Luke Wilson, Theaters of Intention: Drama and Law in Early Modern England (Stanford, CA: Stanford University Press, 2000), esp. chapters 1 and 4. For an extension of Wilson’s argument about intentionality and action in Hamlet, see Carolyn Sale, “The ‘Amending Hand’: Hales v Petit, Eyston v. Studd, and Equitable Action in Hamlet,” in Jordan and Cunningham, The Law in Shakespeare, 189–207.

16. Tim Stretton, “Women, Property, and Law,” in Early Modern Women’s Writing, ed. Anita Pacheco (Oxford: Blackwell, 2002), 40–57, at 53. Cited in Sokol and Sokol, Shakespeare, Law, and Marriage, 3.

17. See S. Schoenbaum, William Shakespeare: A Documentary Life (New York: Oxford University Press, 1975).

18. James Boyd White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression (Boston: Little, Brown, 1973). An abridged version was published in 1985 by the University of Chicago Press.

19. Richard Posner, Law and Literature: A Misunderstood Relation (Cambridge, MA: Harvard University Press, 1988). The book was reissued in revised and expanded editions in 1998 and 2009.

20. Martha C. Nussbaum, Poetic Justice: The Literary Imagination and Public Life (Boston: Beacon Press, 1995).

21. See Robert Ferguson, Law and Letters in American Life (Cambridge, MA: Harvard University Press, 1984); Robert Ferguson, The Trial in American Life (Chicago: University of Chicago Press, 2007).

22. See, for example, Stanley Fish, “Dennis Martinez and the Uses of Theory,” in Fish, Doing What Comes Naturally (Durham, NC: Duke University Press, 1989), 72–98.

23. See, for example, Robin West, Narrative, Authority, and Law (Ann Arbor: University of Michigan Press, 1994).

24. See, for example, Richard H. Weisberg, Poethics, and other Strategies of Law and Literature (New York: Columbia University Press, 1992); Peter Brooks, Troubling Confessions: Speaking Guilt in Law and Literature (Chicago: University of Chicago Press, 2000); Peter Brooks, ed., Law’s Stories: Narrative and Rhetoric in the Law (New Haven, CT: Yale University Press, 1996).

25. On the Inns of Court in relation to London literary production, see the works listed in note 7. On law and literature in an American context, see, for example, Brook Thomas, American Literary Realism and the Failed Promise of Contract (Berkeley: University of California Press, 1997); Stephen Best, The Fugitive’s Properties: Law and the Poetics of Possession (Chicago: University of Chicago Press, 2004).

26. From within critical legal studies, the work of Peter Goodrich on sixteenth- and seventeenth-century common law has been particularly influential for law-and-literature studies in the early modern period. See, for example, Goodrich, Languages of Law: From Logics of Memory to Nomadic Masks (London: Weidenfeld and Nicolson, 1990); Goodrich, Law in the Courts of Love: Literature and Other Minor Jurisprudences (London: Routledge, 1996); Goodrich, The Laws of Love: A Brief Historical and Practical Manual (Houndmills, UK: Palgrave Macmillan, 2006).

Two Differences between Law and Literature

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Table of contents

• Cover
• Copyright
• Title Page
• Contents
• Introduction: Shakespeare and the Law
• I. How to Think “Law and Literature” in Shakespeare
• II. Shakespeare’s Knowledge of Law: Statute Law, Case Law
• III. Shakespeare’s Attitudes Toward Law: Ideas of Justice
• IV. Law, Politics, and Community in Shakespeare
• V. Roundtable
• Contributors
• Notes
• Index