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
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.
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.
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."
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.