Thursday, April 8, 2010

Shakespeare's Intent, Light Into Matter

Let me set the stage, William Shakespeare wrote a tragic-comedy called the Merchant of Venice which my friend Gayle, curator and cultural critic of Gayle's Bard Blog has been brilliantly "blogging" over the last few weeks.  This post is being posted in conjunction with her post on the same subject matter.  So if you are at all interested go here, honest, it's good for you!  And you can brag that you read your Shakespeare for the year, your friends will be impressed.

The Merchant is a problem play for many reasons not the least of which is its anti-semitism, although Gayle and I agree that perhaps the most sympathetic character is also the one who is intended (?) by Shakespeare to be the most loathesome, Shylock, the Jew.  Shylock lends money for the benefit of a young Venetian with the bond upon default of repayment of a "a pound of flesh."  There is a "courtroom" scene in which the female heroine, Portia, in the disguise (classic Shakespearean technique and plot twist) of a "learned" young attorney.  Portia turns the tables on the creditor, Shylock, when Shylock attempts to "claim" his pound of flesh--by literally carving it from the body of the reckless intermediary, Antonio. Through a literary device, which Gayle is much more competent to address, Portia wins the day and spiritually destroys Shylock.

My pal Gayle sent me the following query:

"What are the legal implications of  'intention.' Because, as you know, Act 4 is when Shylock's commercial case--involving a contract--becomes a criminal prosecution. Portia says

Tarry, Jew.
The law hath yet another hold on you.
It is enacted in the laws of Venice,
If it be proved against an alien
That by direct or indirect attempts
He seek the life of any citizen,
The party 'gainst the which he doth contrive
Shall seize one half his goods; the other half
Comes to the privy coffer of the state,
And the offender's life lies in the mercy
Of the Duke only, 'gainst all other voice--
In which predicament I say thou stand'st,
For it appears by manifest proceeding
That indirectly, and directly too,
Thou hast contrived against the very life
Of the defendant, and thou hast incurred
The danger formerly by me rehearsed.
Down, therefore, and beg mercy of the Duke.

[Portia, the female lead in the guise of a learned lawyer] says "it appears by manifest proceeding," which I take to mean, "it looks like you intended to." But h[Shylock] never says "I crave Antonio's life." [Shylock] says "I crave the law." And of course there seems to be a separate law for "aliens," as well--which goes against the putative universality of law itself; which Portia uses earlier on to say that she can't "wrest the law to her authority." Instead, she seems to make up a whole new law! But anyway...if the bond itself was illegal, which this speech seems to indicate, then what? Because Antonio borrowed money and signed a contract that wasn't binding. Or so it would seem.

Of course this is drama, not real (legal) life. But I was wondering how these issues would play out in a real courtroom, and whether you could think of any real-life analogues.

Also, it seems to me, the whole issue of "intent" is relevant to the religious equivalent of crime, ie, sin. Is it a sin if you don't intend it to be one? Your own legal difficulties might give you some personal insight into this (which of course you may not want to share)."
So you are saying to yourself, huh?

Gayle is very perceptive, because what Gayle notices in the Merchant, is that Shakespeare, for dramatic purposes, is doing a legal sleight-of-hand.  The courtroom scene is the "trial" of a contract or commercial case: a bond forefeiture for non-payment, entitling the lender to collect the agreed upon default, in this case "a pound of flesh." But what transpires is that the civil-commercial case morphs into a criminal prosecution as Shylock's insistence upon performance of his bond--an almost Taliban-like collection proceeding--is found to violate Venetian criminal codes, specifically "spilling blood." 

Gayle is asking is there any modern equivalent.  And if so what role does the legal requirement of "intent" play in the scheme of things, alternatively can "intent" for a commercial purpose serve as "intent" for a criminal prosecution arising out of the same set of transactions? 

First a disclaimer, the Bad Lawyer is not a scholar, and the questions poised by my pal Gayle are truly better addressed by genuinely learned legal scholars.  But there are some general principles that make the question fun to think and talk about.  As I've said here in the past, prosecution of criminal acts requires proof beyond a reasonable doubt of both the prohibited act and the requisite intent to commit the act.  A homicide is the act of killing someone, it is not "murder" absent proof that the person committing the act also possessed the requisite mens rea, criminal purpose and intention.  For example, Luigi kills Vittorio.  In our hypothetical set of facts the homicide occurs when Vittorio climbs through Luigi's bedroom window at night with a dagger in hand. We can conclude that Luigi's intent was self-defense, not murder.  We could change our hypothetical facts, Vittorio kills Luigi.  Vittorio came with dagger in hand, to collect a debt, knowing Luigi to be a dangerous man--Vittorio's intent to "collect a debt" may vitiate criminal intent or it may not.   Ah, . . . from just such questions the Socratic technique conceived and the law school colloquys hatched.

One of the classic scenarios of "transferred intent" which is suggested in Gayle's query but not actually applicable, is arson--felony murder.  The arsonist is engaged in the commercial enterprise of reducng property to "cold hard insurance cash."  If per chance, someone is occupying the building being burned, or a fire fighter dies from an injury, or cardiac-pulmonary episode while responding to the scene, the prepetrator's criminal intent to commit the arson is said to "transfer" to the homicide making it murder. 

Intent of a different species is required for commercial transactions, and as we know commercial transactions of all sorts also support criminal prosecutions, as with Bernie Madoff, et al.  Contracts are said to arise upon offer and acceptance, and a "meeting of the minds," is achieved.  Once again the intention of the parties is relevant when disputes arise and courts are asked to determine the contract terms, and order a remedy.  There, I said it--Gayle...remedy.  Shakespeare's Merchant is comedy or drama, failing wholly as a treastise on commercial or contract law, because Shylock's demand is absurd in real world terms because his available remedy regardless of the "language of the bond" is money and it is universally money (although I understand that the Japanese Yakuza might actually do the "pound of flesh"-thing.) 

And the Merchant is anti-semitic as a matter of cultural history, evidenced by referrring to the Talmud, Fourth Tractate, Sanhedrin (Court) you will find that the most advanced and humane procedures for resolution of commercial disputes existing centuries before "common law" in England (which was not "common" until English King Henry II made it happen)  The Rabbinical procedures provided for arbitration and mediation providing remedies for judgment and compromise of commercial obligations or debt.  Talmudic traditions provided for just resolution of disputes among Jews but also for the benefit of outsiders.  Physical harm to a debtor was not an available remedy.   But one need not refer to the canonical oral law of the Talmud to understand that the Merchant scenario of demonic Jewish creditor is libelous, look at Leviticus (uh, the Old Testament) specifically 19:11-37 which provides that Jews will be just to one another and just with "aliens" who settle "with you."  The Rabbinical oral law is even more explicit.

But let me deal with Gayle's other question, are there corollaries in the law to the Merchant scenarios, in my experience?  Sure! 

You can read about my own experience with debt and forfeiture and imputation of intent into a threat of criminal prosecution of me arising out of a client's personal bankruptcy and his bankruptcy fraud. I won't resummarize the story of my asserted malpractice and alleged criminal conduct in Pedro's case and its consequences for me, but trust me (or read it for yourself,) the story is as complicated and byzantine as the Merchant.  Oh, yeah--and just like Antonio, I caused my own misery through sheer stupidity and recklessness.  And yes, there are all kinds of outcomes that are "pounds of flesh."

Globally ,we can think and talk about all sorts of similar situations involving usury and financial recklessness.  There are also examples of "illegal contracts," and intentional torts.  You see, the question of corollary is not unlike pulling on a loose yarn at the corner of a sweater and unwinding the entire sweater.  When a lawyer writes a brief advocating a position in a case he or she is handling, the lawyer looks for law "on point." 

First the researching lawyer looks for statutory, (codified law and regulatory) authority. Next, he or she looks for case law with precisely the same set of facts in precisely the same sort of circumstances.  When such a "precedent" does not exist (usually,) our legal warriors look for corollaries and analogies in the area of law that they are practicing and at other areas of the law--for general principles.   Frankly, this approach has its problems, since finding a case "on point," frequently is not available because the law--contrary to the claims of "originalists," continues to evolve. 

I am coming to believe that a better approach is to start with first "principles" then drill down--in other words, I'm beginning to re-embrace larger ideals.  Isn't this, in the end, why Shakespeare is still relevant?  Despite the apparent anti-semitism, the theatrical tricks, and the plot twists, there is truth in Shakespeare.  The Bard, like all avatars of genius in history connect us with truth, transforming light into matter and the template of thought and language into our lives.


  1. Thanks again for all your exposition, BL. You really helped me to deepen my understanding of the play. I'm still thinking about a lot of this, esp, today, this whole question of legal precedent. In the play, Portia pretends to worry about precedent, in that whole "wrest the law to your authority" bit--which is odd, now that I think about it, because I doubt any real trial lawyer would worry about setting a bad precedent, would she?
    And re: originalists vs evolutionists (or whatever you guys call them--the ones who believe that the law is in constant dialogue with culture/society). I was thinking about the English language here, too--the people like the late William Safire, who believe that English is a static set of rules, and those who (like me) are willing to admit that the nature of language is change, and yesterday's faux pas may be tomorrow's highbrow expression. Anyway, thanks again.

  2. You'll notice my normal 6 AM post is omitted and I my only post for today is an update with a pointing backwards. I want folks who come here to have a further opportunity to read our Merchant posts.

    This was one of the highlights of my "blawg"--thank you for letting me participate in the glory of your wonderful blog! I've had several friends tell me that they've reade both posts are intrigued by the quality, of....your post!

    Trial lawyer do think about such things as leaving a "bad precedent," in fact I'm working on a matter right now that encompasses just such a concern. But because a lawyer's first obligation is to the client, bad precedent happens regardless.

    We will talk about more about originalism vesus dynamism in the law, but suffice it to be said that orginalism is in my view a smokescreen for very conservative agendas and outcome-based determinations. Shakespeare is proof that originalism is not "truth," because it presupposes rigid formalism versus originality.


  3. Love the Bard Blog project and the posts by you and the estimable Gayle. Remarkable job by you two from your different perspectives. Absolutely adore her site.