Shakespeare and Judgment: The Renewal of Law and Literature

Abstract

Legal theorist Desmond Manderson and Shakespearean Paul Yachnin develop parallel arguments that seek to restore a public dimension of responsibility to literary studies and a private dimension of responsibility to law. Their arguments issue from their work as the creators of the Shakespeare Moot Court at McGill University, a course in which graduate English students team up with senior Law students to argue cases in the “Court of Shakespeare,” where the sole Institutes, Codex, and Digest are comprised by the plays of Shakespeare. Yachnin argues that modern literary studies suffers from impermanence and isolation from real-world concerns and that it can redress these limitations—developing attributes of corrigibility, temporality, judgment, and publicity—by learning from law. Manderson finds that modern legal judgment is bereft of affective engagement with the subjects of law and wedded to an ideal of objectivity, regulation, and impersonality. Literature can restore to legal judgment the elements of narrative, character, context, and self-reflection. Together, the essays argue that the question of judgment, so integral to the disciplines of law and of literature, needs the renewal that an interdisciplinary engagement provides.

Notes

1. Martha Nussbaum, Poetic Justice: The Literary Imagination and Public Life (Boston, MA: Beacon Press, 1997), 81.

2. Paul Yachnin, Judgment, in re Attorney General for Canada; ex parte Heinrich [2003] 1 C. of Sh. 1; online: The Shakespeare Moot Project <http://www.mcgill.ca/shakespearemoot/trials/judges02-03/>.

3. See Desmond Manderson and Paul Yachnin, “Love on Trial: Nature, Law, and Same-Sex Love in the Court of Shakespeare,” McGill Law Journal 49 (2004): 475.

4. All Shakespeare quotes are from The Riverside Shakespeare, ed. G. Blakemore Evans, 2d ed. (Boston, MA: Houghton Mifflin, 1997).

5. Desmond Manderson, “In the Tout Court of Shakespeare: Interdisciplinary Pedagogy in Law,” Journal of Legal Education 54 (2004): 283.

6. The fact pattern and procedural history of the Laird case is available online at http://www.mcgill.ca/shakespearemoot/trials/facts05-06/. Tristan King, CEO of Shakespeare Scansion and Suspension, a multinational manufacturer of automobile parts and iambic pentameter verse, was found beaten to death in his suite of offices on the morning of 16 March 2000. Gaston Laird, the corporation's CFO, and someone with whom King had a very tumultuous business relationship, moved into the top job. He was arrested and charged with the murder of the man he had replaced. The Crown's case rested on the fact that Laird had motive and opportunity, that he and King, who was beloved by the company's employees, detested each other, and that King had been preparing a file calling for the termination of Laird to be presented at the forthcoming AGM. Numerous witnesses testified to a tense and explosive relationship between the two men. Laird's counsel called several witnesses who attested to a long-standing affair between King and his executive secretary, Rosalind Koscuisko. The defendant argued that her husband also had a strong motive for the murder and presented to the jury a detailed account of Kosciusko's history of violent spousal abuse and jealous rages as well as a number of past convictions for armed robbery. The defendant called witnesses who testified to Laird's extensive work with Médicins sans Frontières and to his devotion to his wife and three young children. The Crown requested and the Judge allowed into evidence the fact that, as a young man and at that time a line worker for Shakespeare Scansion and Suspension, Laird had been found guilty of aggravated assault after having beaten his supervisor and spent six months in jail. Laird was found guilty of murder. On appeal to the Court of Shakespeare, Laird sought to have the conviction overturned, arguing that the evidence of his prior conviction was inadmissible and prejudicial, and was likely to have influenced the jury's findings of fact.

7. Lars Engle, Unpublished Judgment, A Question of Character: Laird vs The Crown [2005] 4 C. of Sh. 1; online: The Shakespeare Moot Project http://www.mcgill.ca/shakespearemoot/trials/judges05-06/#ENGLE [Engle].

8. Ibid.

9. Hannah Arendt, The Human Condition, 2d ed. (Chicago, IL: University of Chicago Press, 1998), 58.

10. Riverside Shakespeare, note 4 on Hamlet 5.2.238–49.

11. Harold Bloom, Shakespeare: The Invention of the Human (New York: Riverhead, 1998).

12. In my paper, Paul Yachnin, “Dog-Words: Performing Shylock at the Species Threshold,” Discovering Performance Studies Speaker Series (University of Calgary, 12 February 2007).

13. Riverside Shakespeare, note 4 on 3.3.12–17.

14. See Christopher Marlowe, The Jew of Malta, ed. T. W. Craik (London: Ernest Benn, 1966).

15. Jürgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, trans. Thomas Burger (Cambridge, MA: MIT Press, 1991), 5.

16. Arendt, The Human Condition, note 9, 58.

17. See Michael D. Bristol, Big Time Shakespeare (London: Routledge, 1996).

18. See Note 6.

19. D. H. Lawrence, Selected Literary Criticism, ed. Andrew Beal (London: Heinemann, 1955), 117.

20. Henry Fielding, History of Tom Jones (1759); Daniel Defoe, The Life and Surprizing Adventures of Robinson Crusoe (1719).

21. See Jill Lepore, “Just the Facts, Ma’am,” New Yorker (24 March 2008), online: The New Yorker <http://www.newyorker.com>.

22. Walt Whitman quoted in Nussbaum, Poetic Justice, 80.

23. Ibid., 81.

24. Nussbaum, Poetic Justice, 81; Richard Wright, Native Son (New York: Harper & Bros., 1940); E. M. Forster, Maurice (New York: Norton, 1971); Charles Dickens, Hard Times.

25. Nussbaum, Poetic Justice, 89.

26. R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, (2002), 213 D.L.R. (4th) 385 [Handy].

27. Ibid. para. 37 per Binnie J. Italics added.

28. Ibid. paras. 35–36 per Binnie J.; See also Morris v. The Queen, [1983] 2 S.C.R. 190, (1983), 1 D.L.R. (4th) 385; R. v. Morin, [1988] 2 S.C.R. 345, (1988), 44 C.C.C. (3d) 193 [Morin]; R. v. B. (C.R.), [1990] 1 S.C.R. 717, [1990] 3 W.W.R. 385 [R. v. B.]; R. v. Arp, [1998] 3 S.C.R. 339, (1998), 166 D.L.R. (4th) 296 [Arp].

29. Arp, ibid., para. 40, Corey J.

30. Rupert Cross & Colin Tapper, Cross on Evidence, 6^th ed. (London: Butterworth's, 1985), 311.

31. H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961).

32. Sebastien Brandt, Shyp of Fooles, 1497.

33. Robert Jacob, Images de la Justice (Paris: Leopold d’Or, 2000).

34. Gerard David, The Judgment of Cambyses, 1498.

35. The Winter's Tale, 3.1.20–26.

36. Othello, 5.2.

37. King Lear, 4.7.60.

38. Measure for Measure, 1.3.19–20; 2.2.80–82; 3.1.

39. Measure for Measure, 3.1.145–49.

40. This is a contentious reading, and I recognize that the Duke has often been associated with the “Christological” model of justice which I articulated above. A reading that entirely removed the Duke from the “economy of irresponsibility” I am critiquing here would be perfectly consistent with my overall thesis in this essay. That said, two reasons why I prefer a more critical reading of the Duke's behavior are (a) its consistency with the overall cynicism of the play towards law and authority, and (b) the way such a reading makes sense of the Duke's unfathomable and bewilderingly high-handed proposal to Isabella at the play's end.

41. Measure for Measure, 5.1.405–9.

42. See Carol Gilligan, In a Different Voice (Cambridge, MA: Harvard University Press, 1982); Nussbaum, Poetic Justice; Carol Smart, Feminism and the Power of Law (London: Routledge, 1989); Margaret Davies, Asking the Law Question: The Dissolution of Legal Theory (Sydney: Law Book Company, 2002); Drucilla Cornell, The Philosophy of the Limit (New York: Routledge, 1992).

43. Desmond Manderson, Roderick Macdonald, and Paul Yachnin, “Love on Trial,” McGill Law Journal 49 (2004): 509–11.

44. When Solomon was unable to tell which of two women was the real mother of the baby, he proposed to cut the child in half and to give each mother a part of him, in order to determine from their reactions which woman was lying and which was telling the truth. 2 Chronicles 1:16–28.

45. Barack Obama, speech on confirmation of Chief Justice John Roberts, in Jeffrey Toobin, “No More Mr Nice Guy,” New Yorker (25 May 2009), online: The New Yorker <http://www.newyorker.com>.

46. Bush v. Gore, 531 US 98 (Supreme Court of the United States 2000); New York Times, Tuesday 12 December 2000; see Francis X. Clines, “ Black Robes With Humans Inside Them,” The New York Times (12 December 2000), online: The New York Times http://www.nytimes.com/2000/12/12/us/contesting-the-vote-inside-the-court-black-robes-with-humans-inside-them.html?sec=&spon=&pagewanted=all.