Eagleton, Judge Posner, and Shylock v. Antonio
David Conter
The appearance of Richard Posner’s Law and Literature in 1988 may be
taken to mark the institutionalization of a convergence of interests.! One might
be tempted to speak, as Posner does, of a law and literature ‘movement’. But
movement suggests direction, and it is not clear that there is or should be any
single general direction taken by those interested in exploring the connections
between law and literature. The real question about law and literature, as Posner
himself indicates, is not what specific goal the exploration is directed toward,
but whether any rich or fruitful results are to be expected from this adventure.2
If you stick in your thumb, will you pull out a plum? With this general concern
in mind, I want in what follows to look at the interchange between literary critic
Terry Eagleton and Judge Posner himself concerning some legal aspects of
Shakespeare’s The Merchant of Venice.
Eagleton’s views can be found in his short book William Shakespeare.3 The
discussion there, although it is about law, justice, and mercy, is not plausibly
connected to recent developments in the law and literature ‘field’. And clearly
it was the absence of informed consideration of legal questions raised in the
play that prompted Posner to offer corrective judgments. But although
Eagleton’s notions about the nature of law may seem poorly grounded, Posner’s
responses do not always appear to me to be particularly helpful. Damagingly,
Posner offers his legal observations without any attempt to connect them to a
broader vision of what Merchant might be about –
this despite his suggestion
that Merchant, along with Shakespeare’s Measure for Measure, are among the
minority of literary works, just because in them, legal issues are central to their
meaning.4 I believe that there are more plums here than Posner has got hold of,
and that his suggestion about the importance of legal material in The Merchant
of Venice can be more fully vindicated by further consideration of some of the
detail of the play.
The case of Shylock and Antonio, the merchant of Venice, is of course
familiar enough. To supply his friend Bassanio with money for a campaign of
* Department of Philosophy, Huron College, University of Western Ontario.
McGill Law Journal 1990
Revue de droit de McGill
IR. Posner, Law and Literature, A Misunderstood Relation (Cambridge: Harvard University
Press, 1988).
21bid. at 13.
IT. Eagleton, William Shakespeare (Oxford: Basil Blackwell, 1986).
4Posner, supra, note 1 at 15.
McGILL LAW JOURNAL
[Vol. 35
courtship to be addressed to Portia, a wealthy heiress, Antonio borrowed three
thousand ducats for three months from Shylock, a Jewish money-lender. The
instrument of the loan would appear to have been a kind of conditional bond,
obliging Antonio to allow Shylock to have a pound of Antonio’s flesh cut off
nearest his heart, taken by Shylock himself. According to the bond, this obliga-
tion would have been defeated if Antonio repaid the loan at the prescribed time
and place. The bond thus fixes a determinate penalty in case of non-payment –
precisely the function of a conditional bond. In the event, the loan was not
repaid at the prescribed time and place because six of Antonio’s ships, on which
he had depended for money, were apparently lost at sea in an unusual run of bad
luck. Antonio then evidently refused to allow Shylock to take his pound of
flesh, so that Shylock sued on the bond.
The complex and difficult judgment is presented in Act 4 of the play,
strangely enough by Portia the heiress, now disguised as a legal scholar, and
apparently acting with the authority of the court. The elements of the judgment
are as follows:
(1) The instrument binding Antonio to Shylock was a valid bond (4.1, 175-6).
(2) The court was obliged to enforce the bond by giving Shylock specific perform-
ance, i.e., by allowing Shylock to cut the pound of flesh (4.1, 214-5).
(3) Although the bond was valid, the words of the bond had to be construed nar-
rowly, so that while the pound of flesh could be taken, no blood could be taken
(4.1, 302).
(4) The shedding of any blood by Shylock would lay him open to the penalty of
the confiscation of all his property (4.1, 305-308).
(5) Any cutting of either more or less than a pound of flesh by Shylock would lay
him open to the penalty of death (4.1, 302-328).
(6) Shylock was in fact guilty of seeking by direct or indirect attempts the life of
a citizen, viz. Antonio, with the result that he was subject to the penalty of death,
confiscation of one half his property by the state, and confiscation of the other half
by Antonio, his intended victim (4.1, 344-359).
Reactions to this unusual case and to the remarkable judgment have been,
of course, various. The main contentions of this paper are that the extraordinary
features of Portia’s judgment are controlled by ancient metaphors whose signi-
ficance has been largely forgotten, and that the need for the recovery of these
metaphors emerges precisely from a consideration of the legal peculiarities in
the disposition of the dispute. This is not the view of Posner or Eagleton. What
both emphasize is the literalness of Portia’s judgment. Eagleton expresses the
view that it is Shylock who has respect for the spirit of the law and Portia who
does not.5 Focussing on Portia’s narrow construal of the words of the bond
which rules out the shedding of blood, Eagleton complains that it threatens “to
bring the law into disrepute”, “eroding the essential impartiality of law”, by
5Eagleton, supra, note 3 at 30.
1990]
NOTES
“deploying exactly the kind of subjective paltering it exists to spurn.”6 Any text,
Eagleton says,
can be understood only by going beyond its letter, referring it to the material con-
texts in which it is operative and the generally accepted meanings which inform
and surround it. Portia’s reading of the bond, by contrast, is ‘true to the text’ but
therefore lamentably false to its meaning. There is nothing ‘false’ about her read-
ing in itself, which the text, taken in isolation, will certainly bear out; it is just that
her interpretation is too true, too crassly literal, and so ironically a flagrant distor-
tion. Portia’s ingenious quibbling would be ruled out of order in a modem court,
and Shylock (given that his bond were legal in the first place) would win his case. 7
But this pays too much attention to Portia, and not enough to the oddness
of the law itself. Clearly, the law upheld in Shakespeare’s Venice needs no
Portia to bring it into disrepute: it is barbarous as it stands. First, there is the
fact that Shylock’s bond is apparently legally valid despite the fact that it would
evidently licence him to commit at least a criminal assault on Antonio, if not
murder. It seems clear that in sixteenth century English law the bond would
have been void for the reason given by Littleton in a case in 1458: “the cause
that it is avoided, is so that no deed be executed as emboldens a man to do
something against the law.”8 Eagleton is committed to the idiosyncratic view
that the reputation and the impartiality of a legal system are threatened if it
refuses to enforce contracts requiring the commission of what would otherwise
be at least assault causing bodily harm. To the extent that the law of
Shakespeare’s Venice regards such contracts as valid, Venetian law must seem
more appealing to Eagleton than contemporary Anglo-American law which
rejects such contracts.
More tellingly, Shakespeare’s Venetian law grants specific performance to
Shylock rather than money damages to compensate him for what he loses by
Antonio’s refusal to allow him to cut his pound of flesh. In the sixteenth century
in England, this remedy would have been unavailable to Shylock at common
law even if his bond had not been illegal: he would presumably have had to take
money. This is because of the forms of action that would have been available
to him. First, although it is natural to interpret the agreement between Shylock
and Antonio as involving a conditional bond, the normal action available on
required that the
such a bond –
penalty for nonperformance of the condition be a fixed sum of money.’ Since
the penalty in Shylock’s conditional bond is for a pound of flesh, the common
law would have forced him to try other routes. Now, his complaint is based on
the action of debt sur obligation –
61bid. at 37, 41 and 38.
7lbid. at 37.
88 Edw. IV, M. f. 20, pl. 35; cited in A.W.B. Simpson, A History of the Common Law of
Contract: The Rise of the Action of Assumpsit (Oxford: Clarendon Press, 1975) at 110.
9J.H. Baker, An Introduction to English Legal History, 2d ed. (London: Butterworths, 1979) at
289.
REVUE DE DRO1T DE McGILL
[Vol. 35
Antonio’s failure to allow him to take his pound of flesh as required by their
agreement –
that is, on Antonio’s non-feasance, and so he might have tried to
bring an action either of covenant or of assumpsit. Although the first of these
originally allowed a claim for specific enforcement, by 1345 it became impos-
sible to obtain in covenant any remedy other than monetary damages.” And
since the action of assumpsit involved a writ of trespass on the case, here too
the only available action would have been for monetary damages, as with all
actions of trespass. It is true that at common law, an action in detenue or in ‘debt
in the detinet’ might have allowed Shylock to claim not money but the, or a,
pound of flesh nearest Antonio’s heart, rather than a sum of money –
but only
if the pound of flesh amounted in law to a piece of personal property in which
Shylock could have acquired rights. It seems clear, however, that as a thesis
about the acquisition of property this would have been denied. That is why
Shylock could only have got money damages at common law, even if his bond
had been legal.
If Shylock had looked instead to the equitable jurisdiction of Chancery, he
would have had to convince the Chancellor that good conscience required that
he be allowed to take his pound of flesh; if, as one would imagine, the
Chancellor were of the opinion that good conscience required a payment of
money in place of the pound of flesh, Shylock would then have had no avenue
of appeal.’ In Shakespeare’s Venice, however, it would appear that the court has
no power at all to order a money payment in place of specific performance. The
mere validity of the bond is taken to determine a method of enforcement that
not merely may, but must involve the commission of an assault causing bodily
harm. “You must prepare your bosom for his knife,” (4.1, 241) Portia says, as
if she could not order a substitute payment. The crudity of the law and harshness
of its application are patent.
Not surprisingly the crudity and harshness of the law array themselves
against Shylock himself. He is finally found guilty of seeking by direct and indi-
rect attempts the life of Antonio. We should note how very unlikely it is that he
should have been found guilty of attempted murder or assault according to the
present law of attempts. There is no evidence that he at any time has sought to
enforce his bond by self-help –
that is, by forcibly taking what the bond
allowed him against Antonio’s will. There is no evidence that he has been
unwilling to await the court’s decision on the lawfulness of the bond before act-
ing. There is no evidence that he would disregard the court’s decision on the
“‘Ibid. at 266.
“Simpson, supra, note 8 at 596. On Milsom’s view, the Chancellor would apparently have had
to have been convinced that Antonio’s conscience should be quickened, so that he might do his
duty and give up the pound of flesh; but as this would absurdly make suicide virtually a duty for
him, Shylock could not hope to win. See S.F.C. Milsom, Historical Foundations of the Common
Law, 2d ed. (Toronto: Butterworths, 1981) at 91.
1990]
NOTES
bond if it went against him. On the contrary, Shylock’s willingness to wait on
the court is obvious: as soon as it is made clear that he is so much as likely to
commit a crime in exacting what he is legally allowed, he proposes an alterna-
tive course of action. It is not clear that any conduct of Shylock’s is sufficiently
proximate to the killing or assault of Antonio to constitute what we should now
call an attempt.
Nevertheless, in Shakespeare’s Legal and Political Background, G.W.
Keeton puts forward an extraordinary suggestion to the contrary. He assumes
that between Portia’s announcement of the court’s award of the pound of flesh,
and her later qualification the award to exclude blood, Shylock must actually
move to cut the flesh. By preparing the way for this criminal attempt, according
to Keeton, Portia carefully lays a surer foundation for Antonio’s defence than
that offered by the more startling prohibition against shedding a drop of blood:
Had she raised the question of the “drop of blood” earlier, this defence [based on
criminal attempt] would have been inoperative – otherwise the Duke would have
recollected the same law and stopped the trial. To bring an action on the bond is
the action is too remote from the final consequence –
not a criminal attempt –
that is, the removal of the pound of flesh, and Antonio’s ensuing death. But
Shylock, having obtained a decision on the effect of the bond, has been earnestly
whetting his knife, and has actually been on the point of making an incision when
Portia stopped him. This is clearly a criminal attempt, and as such a felony. At this
date all felonies were punishable by death and forfeiture of the goods of the
deceased. Portia, by consummate skill, has caught Shylock at last in his own net;
the theatre rocks with applause. 12
This view is neither attractive nor defensible. It takes Portia’s skill to be exer-
cised in encouraging a criminal attempt which would not have been committed
if she had raised the issue of the blood earlier. But this smacks of entrapment,
which would nowadays prevent a conviction (in North America) or mitigate
sentence (in England). In any case Keeton’s view seems to rest on a misconcep-
tion about remoteness and proximity in the law of attempts. Smith and Hogan
trace the doctrine of proximity to a dictum of Park B. in Eagleton (1855); before
that, they say, the court “inclined to the view that any act done with intent to
commit a felony or a misdemeanor was an offence” –
that is to say, any act
whether proximate or remote. 13 Similarly, Stuart cites a 1614 Star Chamber case
(Priest) in which the Court specified that “all inceptions, preparations and com-
binations” to commit felonies were punishable.’ 4 If we understand the law of
12G.W. Keeton, Shakespeare’s Legal and Political Background (London: Sir Isaac Pitman &
Sons, 1967) at 145.
13Eagleton (1855) Dears CC 515, [1843-60] All ER Rep 363,24 LMC 158,26 LTOS 7, 19 JP
546, 1 Jur NS 940, 4 WR 17, 3 CLR 1145, 6 Cox CC 559, 14(1) Digest (Reissue) 107; cited in
J.C. Smith & B. Hogan, Criminal Law, 4th ed. (London: Butterworths, 1978) at 252; observation
at 251.
4Priest (1614), 2 Hon. St. Tr. 1033, cited in D. Stuart, Canadian Criminal Law, 2d ed. (Toronto:
Carswell, 1987) at 536.
McGILL LAW JOURNAL
[Vol. 35
Shakespeare’s Venice in these terms, there is no need, as there would be in mod-
em law, to find an act relatively proximate to Antonio’s death in order to ensure
Shylock’s guilt. What we should nowadays count as non-criminal preparation,
too remote from intended harm, is, I suggest, sufficient to convict Shylock in
his own harsher milieu. Portia has no need to entrap him: under an unfettered
law of attempts, Shylock is guilty of a crime before the trial begins. I shall later
suggest that this is of considerable importance. For the moment, concerning
those who along with Keeton regard the play’s legal treatment of Shylock as
appropriate, I point out that they evidently favor policies concerning entrapment
or attempt which few authorities would advocate today. Shylock is bad and bit-
ter: in that respect Terry Eagleton might have been right in suggesting that he
represents the spirit of the Venetian law that applies to him.”5 By our own legal
standards, however, it is not easy to see him as a criminal. But this is just to say
that our laws are not the appalling ones of Shakespeare’s Venice.
What is Portia’s role in these circumstances? Recall that Eagleton repre-
sents her as false to the spirit of law. Even her “quality of mercy” speech he
regards as “metaphorical excess in the service of crabbed literalness” –
the lit-
eralness which he finds exemplified in her ruling that the bond permits no
bloodshed. Posner on the other hand says that Portia represents the spirit of
equity – not in the historical Chancery sense but in the sense connected with
Aristotle’s use of the term “epieikes”, recently translated by Terence Irwin as
“decent. ‘ 16 Posner says:
In legal terms one might say that Portia personifies the spirit of equity –
the pru-
dent recognition’that strict rules of law, however necessary to a well-ordered soci-
ety, must be applied with sensitivi and tact so that the spirit of the law is not sac-
rificed unnecessarily to the letter.
But Posner immediately, and somewhat confusingly, qualifies this by insisting
that the spirit of equity in the play is entirely apart from its legal substance. The
“quality of mercy” speech he sees as an appeal to mercy divorced from legal
argument.”8 This might have been reasonable if he were talking about equity in
a technical legal sense; in the sense in which Aristotle uses the term “epieikes,”
however, equity is explicitly linked to forgiveness or legal pardon.9 I shall
return to this later. It is equally clear that Posner sees nothing equitable in any
case in Portia’s “no jot of blood” argument, which he calls “hypertechnical.”
Here he stands with most commentators, including Eagleton. E.F.J. Tucker,
‘5Eagleton, supra, note 3 at 40.
16See Aristotle, Nicomachean Ethics, V. 10, VI.II. “Epieikes” is standardly translated as “equi-
table”; for Irwin’s account, see Aristotle, Nicomachean Ethics, trans. T. Irwin (Indianapolis:
Hackett Publishing Company, 1985) at 392.
17Posner, supra, note 1 at 96.
‘8lbid. at 97.
19Nicomachean Ethics, VI, 11.
1990]
NOTES
however, is perhaps a lone exception.’ Tucker argues that given the extraordi-
nary nature of Shylock’s bond, equity in the sense of fairness or decency permits
and indeed requires a restrictive interpretation of the words of the bond, in order
to avoid a plainly defective result. As a point about the principles of equity in
the sense of decency, this may be correct and a point against Posner and
Eagleton. But it is not in accordance with a strange and important feature of
Portia’s judgment which appears to be ignored by all commentators. Portia finds
not merely that the express words of the bond give Shylock no jot of blood so
that he may not take any blood. In addition, there is a severe penalty that will
attach to Shylock’s shedding of any drop of Christian blood –
complete con-
fiscation of property. What needs to be pointed out is that it is unreasonable to
imagine that this penalty could follow from the mere interpretation of the words
of the bond as such. For drawing on an often discussed analogy, suppose that
Shylock had contracted with Antonio for leave to cut a slice of melon instead
of a pound of flesh.2 Suppose, too, that for some odd reason, the proper inter-
pretation of the contract allowed no jot of juice to be spilled. And suppose
Shylock cut the melon anyway, incidentally spilling the juice. We are surely not
to imagine that this unwarranted spilling could possibly result in the entire con-
fiscation of his property just because the spilling was prohibited according to
the bond. But if not, we must suppose that what distinguishes the melon case
from the flesh case is some independent prohibition on the shedding of any of
Antonio’s blood which comes from outside the bond. In that case, however,
Portia’s interpretation of the bond can be seen to be dictated not by equity or
decency. Rather the operative elements will be the existence of this legal pro-
hibition against even the slightest bloodshed, together with a principle of inter-
pretation requiring that bonds be construed so as to minimize, if not eliminate,
their illegality. But if this is correct, then Eagleton and Posner are wrong, too.
For they regard Portia’s insistence on taking the flesh without the blood as
dependent on a mere legal quibble or a hypertechnical argument concerning the
wording of the bond. The severe penalty for the shedding of Antonio’s blood in
this case indicates that something more significant is at stake according to the
applicable law.
But what is the applicable law? What sense could there be in a law that
allowed Shylock to take the pound of flesh but only without any drop of blood?
The applicable law, I tentatively suggest, is the law of the Pentateuch, Jewish
law; and as such its sense might have been expected to be clearer to Shylock
himself than to any other character involved in Shylocks’s trial, though it is the
last thing he might have expected.
20See E.J.F. Tucker, “The Letter of the Law in The Merchant of Venice” (1974) 29 Shakespeare
Survey 93.
21For the source of the analogy see F.O. Haynes, Outlines of Equity (Philadelphia: T. & J.W.
Johnson, 1858) at 20.
REVUE DE DROIT DE McGILL
[Vol. 35
In advancing this suggestion, there is perhaps a preliminary hurdle to be
gotten over. Would it have been imaginable to anyone in the sixteenth century
that a Venetian court should apply non-Venetian law? Legally speaking, this is
a question about the history of the conflict of laws –
the history of the doctrines
and rules designed to assist courts in the deciding of cases containing ‘foreign’
or ‘alien’ elements. Already by 1607, English courts were dealing with cases
involving the enforcement of foreign judgments.’ And in the sixteenth century,
the French jurist Dumoulin had put forward the view that, where different laws
might apply to a contract, the law which governs the contract should be the law
intended by the parties.’ Of course, what Portia says is that the penalties which
Shylock risks are laid down “by the laws of Venice” (4.1.307), and this may
seem to scotch the idea that Jewish law might have any application here. To this
there are three replies. The first is a conceptual one, having to do with the notion
of conflict of laws. What must be kept in mind is that when a Venetian court
decides which rules to apply in a given dispute, the rules or doctrines that it uses
to make that preliminary decision must be a matter of the Venetian law concern-
ing contracts. And so if Portia were to apply Jewish law to Shylock’s case, that
would have to be in accordance with the laws of Venice, just as she says. Of
course, this makes the legal situation somewhat complex. But this leads to a sec-
ond reply. For the law in Merchant must be complex, if the plot of the play is
to make any sense at all. If the rules which made it dangerous for Shylock to
proceed against Antonio were in any way obvious, we should have to wonder
why Shylock should have thought that he could succeed in court –
one would
have supposed that as a money lender, he would have been familiar with the law
of debtor and creditor. A complicated conflicts approach to the trial makes his
apparent ignorance somewhat more credible than it otherwise would be. Finally,
technicalities aside, there is from the theatrical point of view, a very sharp irony
that accrues to the play on the supposition that the body of law which condemns
the alien Shylock is one which he cannot as a Jew repudiate.
I suggest, then, that we should look to Jewish law for the prohibition
against Shylock’s taking of any blood. This will involve the rejection of the
claim accepted by Eagleton and Posner that in prohibiting Shylock from taking
blood, Portia focusses on the narrow letter of the law. Doubtless there is a sense
in which she pays attention to the letter of the law. But, at the heart of her judg-
ment there is a powerful metaphor drawn from two kinds of sources, both of
which can be found in the Pentateuch.
The first sources are relatively familiar. They form part of the Jewish diet-
ary laws. Jews are permitted of course to eat meat, flesh; but they are not per-
mitted to eat flesh with the blood in it. The prohibition appears at least five
22J.G. Collier, Conflict of Laws (Cambridge: Cambridge University Press, 1988) at 9.
23P.M. North, Cheshire & North’s Private International Law, 10th ed. (London: Butterworths,
1979) at 21.
1990]
NOTES
times in the Pentateuch, first at Genesis 9:4-6, when the proscription against eat-
ing the flesh of animals with the blood in it is explicitly connected with the pro-
hibition of homicide. Genesis 9 was a Sunday Morning Proper Lesson in
Shakespeare’s time, which he might have heard in church; and Richmond Noble
finds verbal echoes of Genesis 9:6 in four other plays of Shakespeare.’ Other
relevant passages are Leviticus 7:26-27, Leviticus 17:10-14, Leviticus 19:26,
and Deuteronomy 12:23-25. Verbal echoes from Leviticus and Deuteronomy
can be found in seven other plays of Shakespeare.’ So information about the
dietary laws would appear to have been at Shakespeare’s fingertips. As part of
dietary laws the distinction between flesh with blood and flesh without blood
has been, until relatively recently, a part of the constant consciousness of Jews,
as one of the elements of their religion that sets them apart or isolates them from
non-Jews. When Shylock, for instance, accepts the dinner invitation “to feed
upon/the prodigal Christian,” Bassanio, he goes unable to eat any meat, even if
it comes from no unclean animal and has not been prepared with milk; for if it
is game, it will almost certainly not have been taken from an animal whose
blood was buried upon slaughter (Leviticus 17:13); nor will it then have been
properly broiled, or soaked, covered in salt, and washed to remove the (remain-
ing) blood. Eagleton startlingly suggests that in seeking Antonio’s flesh,
Shylock aims at a kind of black mass or a grotesque parody of a eucharistic fel-
lowship.’ 6 Of course, on the assumption of transubstantiation, a Jew who took
communion, consuming the flesh and blood, would at the very least violate
Jewish dietary laws.27
The echo of the dietary laws in Portia’s blood proscription would be, of
course, irrelevant, if Shylock’s interest in Antonio’s flesh could not be associ-
ated with eating. But the association can be made out without dragging in black
masses, on the basis of three Pentateuchal passages prohibiting Jews from tak-
ing usury. The passages are Exodus 22:25, Leviticus 25:35-38 and
24R. Noble, Shakespeare’s Biblical Knowledge (New York: Macmillan,’ 1935) at 282.
25lbid. at 283.
26Eagleton, supra, note 3 at 43.
27Might Shakespeare himself have appreciated the incongruity of Jewish dietary laws and the
Catholic doctrine of the eucharist? Given the assumption that he was aware of the Pentateuchal
blood proscriptions, the answer must depend on whether he understood the Catholic doctrine, as
opposed to the reformed doctrine of the Church of England. Since there is evidence that
Shakespeare’s father died a recusant Catholic, this understanding would appear to have been read-
ily available –
see R. Fraser, Young Shakespeare (New York: Columbia University Press, 1988)
at 47. Such understanding would also have been available in John Foxe’s Book of Martyrs, The
Acts and Monuments of the Church, the fourth edition of which appeared in 1583, and the fifth,
later used by Shakespeare as the source of Act V of Henry VIII, in 1597, about the time of
Merchant. The tribulations of Archbishop Cranmer portrayed in Henry VIII are linked by Foxe to
Cranmer’s attack on the Catholic doctrine of transubstantiation at the time of the notorious Six
Articles in 1539; see Foxe, The Acts and Monuments of the Church (New York: Robert Carter,
1855) at 570 and 896.
McGILL LAW JOURNAL
[Vol. 35
Deuteronomy 23:20. In each case, the Hebrew word which the Geneva Bible
renders as “usury” is neshekh, which, as it happens, means “bite”.28 In the great
twelfth century codification of Jewish law, the Mishneh Torah, Maimonides
asks about usury, “Why is it called neshekh (biting)?” He answers, “Because the
usurer bites, inflicting pain on another person and eating his flesh. ’29 A similar
suggestion can be found in the great Biblical commentators Rashi (eleventh
century), and Nahmanides (thirteenth century). This Jewish learning found its
way into Christian thought through the work of Nicholas of Lyra, a Franciscan
widely thought to be an apostate Jew, who around 1330 produced a frequently
reprinted commentary on the whole Bible. Concerning Exodus 22:25 – which
the Geneva Bible familiar to Shakespeare translates “ye shalle not oppresse him
with usurie” – Nicholas says:
In Hebrew it is written: Do not put a bite upon him, and by “bite” usury is under-
stood. The reason is, as Rashi says, that just as the bite of snake is little noticed
or felt at first but afterwards swells up so that the effect of the little bite spreads
through the whole body, so usury is not felt to be bad at the beginning, but after-
wards it rears itself up, and eats the whole substance of a man.30
Nicholas is held to have been a great influence on Luther, and given the
revival of interest in Hebrew scholarship associated with the Reformation, it is
not surprising that some of the Hebrew lore about usury should have penetrated
various circles in sixteenth century England. Circa 1556 there appeared not one
but two English translations of a work on usury by the early German Reformer
Wolfgang Musculus, who pointed out that in Hebrew usury “is named
Neschech, of byting, because at the last it biteth him, which payeth vantage.”,3
It may nevertheless be with some surprise that we find in the English case
of Sanderson v. Warner (1622) Ley C.J. expressing the view that some usury is
lawful and that the usury which the common law condemned “fruit un common
trade de biting usury.”‘3 In fact, however, the metaphorical association of usury
or interest with biting or eating flesh is hardly limited to the Bible. In
Aristophanes’ Clouds, a work probably unknown to Shakespeare, Strepsiades
claims that he is afraid to sleep “daknomenos/hupo tes dapanes kai tes phates
kai ton khreon” –
“eaten up by expenses and stables and debts” (11. 11-12). In
Lucan’s Pharsalia the phrase “usura vorax” occurs (1. 181) –
a possible source,
18Maimonides, Mishneh Torah, P. Birnbaum, ed. and trans. (New York: Hebrew Publishing,
in c. IV.
mine).
1967) at 283 (my italics).
29For Shakespeare’s familiarity with the Geneva Bible among others, see Noble, supra, note 24
30Nicholas de Lyra, Glossa Ordinaria V. 1 (Paris: n.p., 1590) at 704, (translation and italics
31W. Musculus, Of the Lawful and Unlawfil Usurie Amongest Christians (n.p., 1556) pages not
32Sanderson v. Warner (1622), Palm. 291, 2 Rolle Rep. 239; cited in Simpson, supra, note 8 at
numbered.
1990]
NOTES
one might have said, of Justice Leys’ “biting usury”. With “usura vorax” we
come to a form of the metaphor that we can be certain that Shakespeare was
familiar with in some form, for Marlow had rendered it as “devouring usury”
in his 1593 translation of the first book of Lucan.
Yet there is strong evidence not only that the phrase “biting usury” has its
source in the Hebrew Bible, but that this was very widely known. For in fact,
from the mid-sixteenth century onward in England, the text of Exodus 22:25
was the center of a heated, public, theologico-political debate about whether
there was any acceptable rate at which money might be lent at interest. The
commercially-minded argued that what the Bible prohibited was not lending at
interest, but only lending at oppressive rates, at rates that would bite. In a dia-
logue entitled A Discourse Upon Usury (1572), Thomas Wilson (Master of the
Court of Requests, Secretary of State under Elizabeth, briefly Dean of Durham)
put the argument into the mouth of a civil lawyer:
Let us go to the very word of usury in the hebrue tong. It is calledde a bitinge, of
this woorde Neshech, whiche is nothinge else but a kind of bitying, as a dog useth
to bite or gnawe upon a bone; so that he that byteth not, doth not commit usurye.
For usurie is none other thinge than a bitinge, as I saide, of the verye Etimologie
and proper nature of the woorde, otherwise it cannot be called Neshech, as the
Hebricians say, and so call usury of biting onely.33
To this sort of reasoning John Jewel (1522-1571), Bishop of Salisbury had
provided an answer in the undated dialogue De Usura:
Indeed, some usury is harsher, some gentler, a wealthy merchant who makes a
profit from a loan at interest is hurt less than a pauper who is eaten up [exeditur]
by usury and cannot pay back the principal. Nevertheless I hope that it can be
shown in its place, that even in the most moderate interest-taking there is a bite
[morsum].34
Wilson himself expressed his own answer in which a connection is made
between usury and blood:
…[F]or not onely bytynge usury, but all usury is against charitie, because it is iniui-
rious, sinful and directly against god, even as theafte is, bee it never so lytle. But
styll you runne to dyminyshe thys offence, wyth shewinge that a peny upon a
1001i. biteth not. Wel, I saye unto you it is an iniurye, it is a wrong, it is a thinge
forbidden by god, and therefore a synful deede, saye you what you wil. Ther is dif-
ference in dede betwyxte the byting of a dogge, and the bytinge of a flea, and yet,
althoughe the flea doth the lesse harme, yet the flea doth byte after her kynde, yea
and draweth blood too.35
33T. Wilson, A Discourse Upon Usury, R.H. Tawney, ed. (New York: Augustus M. Kelley, 1963)
at 241.
Cambridge University Press, 1850) at 1294 (my translation).
34J. Jewel, De Usura in The Works of John Jewel, The Fourth Portion, J. Ayre, ed. (Cambridge:
35Wilson, supra, note 33 at 259.
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[Vol. 35
These themes were recapitulated in a set of sermons by Miles Mosse pub-
licly delivered at Bury St. Edmunds and published in 1595, three years before
Shakespeare wrote” The Merchant of Venice:
[I]f I oppresse not my brother, if my usurie be not so great as it bite or devour him:
I am not for lending in that sort condemned by the law of God. Yea, and that the
scripture onely forbiddeth biting usurie, may appeare (say they) also by the nature
and Etimologie of the word, which the holy Ghost useth to that purpose. For usurie
is called in the hebrewe tongue Naeschach, which is as Lavater and others have
truly observed, signifieth Morsus, bitinge or gnawing of a thing. And it is a worde
borrowed as some thinke, from the biting or stinging of a serpent: as others have
judged from the gnawing or tyring of a dogge upon a bone. So that, unlesse usurie
be Naeshach, biting, unless by it a man sting his neighbor, as a serpent; or pray
upon him as a dogge Upon a carrion: some holde opinion that it is not forbidden
in the worde of God.
In his classic account of these and related matters, Tawney makes clear that
this sort of material on usury was broadcast widely and repeatedly: “Sermon
was piled upon sermon, treatise upon treatise.”’37 M.M. Mahood notes that in
Shakespeare’s day “everyone had to attend his or her parish church or risk hav-
ing to pay a sizable fine.””8 If so, we may conclude that Shakespeare must have
heard many sermons. It hardly strains the imagination to suppose that at a time
of continued debate about the theological status of usury, he should himself
have heard sermons which made the connection between usury and the biting
or eating of flesh.
Linking the flesh-eating metaphor with Jewish dietary law we get an expla-
nation of the strict prohibition forbidding the usurer Shylock from taking even
a drop of blood: to take usury is to eat flesh; for Shylock usuriously to take
Antonio’s flesh is for him to eat it; Jewish law requires that he eat it without the
blood –
that is, therefore, that he take it without the blood. Now what is penalty
for the Jew who consumes blood? He is to be cut off from his people (Leviticus
7:27, 17:14). This, of course, is what ultimately happens to Shylock: he is
forced to become a Christian, no longer to remain a Jew.
On this view of requirement that Shylock take no blood, Portia is evidently
not a hypertechnical quibbler, a crabbed literalist. Rather, at least momentarily,
she mataphorically puts on the guise of an Old Testament prophet. By turning
the tables of the law on Shylock, she uses a metaphor to force him to recognize
himself and the forbidden choice he has made, in a way bearing some resem-
blance to Nathan’s treatment of David over the death of Uriah (2 Samuel 12 :
1-14). The interpretive payoff is then for Portia, a dramatic increase in moral
36M. Mosse, The Arraignment and Conviction of Usurie in Six Sermons (n.p., 1595) at 133.
37R.H. Tawney, Religion and the Rise of Capitalism (New York: Harcourt, Brace, 1920) at 158.
3 8W’lliam Shakespeare, The Merchant of Venice, M.M. Mahood, ed. (Cambridge: Cambridge
University Press, 1987) at 184.
1990]
NOTES
authority, and for Shylock, a tragic discovery of his own identity of the kind
Aristotle thought finest –
the discovery of identity immediately attended by a
reversal of fortune (Poetics 11).
A similarly non-literal approach can profitably be taken to what is perhaps
the single oddest feature of Portia’s judgment. After repeating to Shylock that
he must shed no blood, she adds
Therefore prepare thee to cut off the flesh.
Shed thou no blood, nor cut thou less nor more
But just a pound of flesh. If thou tak’st more
Or less than a just pound, be it but so much
As makes it light or heavy in the substance
Or the division of the twentieth part
Of one poor scruple –
But in the estimation of a hair,
Thou diest, and all thy goods are confiscate
(4.1.320-328)
nay, if the scale do turn
The bond says “a pound”, and so Shylock must take exactly a pound. This
is literal enough. But according to what possible law of contract should Shylock
die if he takes less than is owed him? This surely cannot be deduced from the
letter of the bond as the literalist approach of Eagleton and Posner would appar-
ently suggest. Again, the bizarre legal penalty demands explanation. And again,
I think we should turn to the Pentateuch –
this time to the passages dealing
with weights and measures, and in particular, to Deuteronomy 25:13-15. Here
Jews are enjoined from keeping two sets of weights and measures, one large and
one small, for the illicit purpose, evidently, of using whatever set would bring
the most advantage in a particular transaction. The Geneva Bible tells us “thou
shalt have a right and just weight: a perfit and a just measure shalt thou have
that thy days may be lengthened in the land, which the Lord thy God giveth
thee.” There is in this an implied threat, which is made clearer in the contem-
porary translation by the Jewish Publication Society: “You must have com-
pletely honest weights and completely honest measures, if you are to endure
long on the soil…”39 The implication is that lack of perfect weights and mea-
sures will result in a curtailed future. This, I believe, gives Portia her cue. The
context of the passage in Deuteronomy in fact increases the suggestion of threat,
for immediately following it we are told that those who “do such things” (as,
presumably, using inexact weights) and “all that do unrighteously, are abomina-
cion unto the Lord.” If this were not dark enough, the chapter immediately ends
with an instruction to “remember Amalek.” Now Amalek is a type of the
unrighteous man, who God tells the Jews “smote the hindmost of you, all that
were feble behind thee, when thou wast fainted and weary, and he feared not
39The Torah: The Five Books of Moses (Philadelphia: The Jewish Publication Society of
America, 1962) at 370.
McGILL LAW JOURNAL
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God.” I think it is not farfetched to see first an association between Antonio
with the fainted and weary, and secondly between Shylock and Amalek who
feared not God. What was to be done with Amalek? “Thou shalt put out the
remembrance of Amalek from under heaven: forget not.” It is not insignificant
either that Deuteronomy 25 begins its catalogue of righteousness with the com-
mand that the loser of a judgment in court is not to be punished excessively. In
linking the death penalty with inexact measurement on the part of an apparent
victor in court who seeks an excessively punitive judgment, Portia forces
Shylock to consider himself not merely as a Jew who must be cut off, but as an
Amalek, worthy of death as an enemy of righteousness. That is why Shylock
must beg for his life.
To conclude these reflections, let us return to Posner’s suggestion that
Portia personifies “the prudent recognition that strict rules of law, however nec-
essary to a well-ordered society, must be applied with sensitivity and tact so that
the spirit of the law is not sacrificed unnecessarily to the letter.”‘4 This seems
to me to be a serious misdescription of Portia’s role. As we have seen the rules
of law that figure in The Merchant of Venice are certainly strict enough –
val-
idating contracts permitting assault causing bodily harm, enforcing such con-
tracts by requiring specific performance, treating as criminal attempts any acts
directed toward the commission of a crime no matter how remote the act from
the goal, punishing the shedding of a drop of blood with complete confiscation
of property, and penalizing trifling inexactitude in the recovery of a debt with
death. These rules are not merely strict, they are savage; and they can hardly be
judged necessary to a well-ordered society. Departing from them as Portia does,
requires nothing so exalted as an exercise of prudence –
the barest minimum
of rationality should suffice. Posner apparently misses all this because he is
engaged in a battle with what he calls the ‘radical’ view of law which he asso-
ciates with Eagleton, and which he characterizes as condemning all law as
such.4′ Posner’s own view seems to be that a blanket defense of law can be
mounted entirely independently of the content of the particular set of laws under
consideration at a given moment. The result is a debate about law conducted by
Posner and Eagleton in terms so general as to obliterate the detail of the text
nominally under discussion.
Nor does it seem to me that Portia applies the rules of law with tact and
sensitivity, as Posner maintains. This is what Portia does: She brings forward a
twisted and bitter man with a vicious purpose who has unknowingly committed
a crime but who is evidently not dangerous. She makes a wondrous speech
about mercy, which there is every reason to believe will mean nothing to him.
(The editor of the New Cambridge Shakespeare Merchant reports that Ellen
4Posner, supra, note 1 at 96.
41bid. at 107. Posner associates this view with Roberto Unger and by explicit association, with
the Critical Legal Studies movement. Per contra see text to note 43 infra.
19901
NOTES
Terry, the great nineteenth century actress, saw Portia’s mercy speech “as a mere
baiting of the trap, and delivered it to charm the stage and the house rather than
to move Shylock.”42 ) When the expected happens, and Shylock stands obdurate,
Portia makes it clear that the whole thing has been a test: if per impossibile he
had been won over, he would have been fully pardoned for his crimes; as it is,
he is ordered to his knees to beg for his life. This is not tact and sensitivity, but
rather a dazzling form of political pageantry about power and judgment, in
which Shylock is forced to play out a role that he has evidently entirely misun-
derstood. In this pageant, the law is harsh, unremitting, and impenetrable. Given
this state of affairs, the only expedient is for those with power generously to
exercise their proper prerogatives to pardon and forgive. Those who do so, like
the Duke and Antonio are fit to retain their position. Those, like Shylock, who
rest their claims barely on the mysteries of a law whose import they do not
grasp, must be deprived of what powers they have. In this, Portia is not the pro-
tector of the spirit of the laws against the letter, as Posner maintains; what she
offers rather is a beautifully lacquered and very worldly defense of the prerog-
ative of executive pardon to abate the law. It comes as no surprise at all to learn
that in 1605 James I, who had exalted ideas of prerogative himself, should have
watched The Merchant of Venice twice in three days. What is at stake here is
not the spirit of the legal system but its structure. In the perhaps tendentious lan-
guage of Critical Legal Studies, Portia can be seen as legitimizing a dominative
structure of legal and political power, by making a show of how much worse
things could be, but for the the institution of the prerogative of pardon.43
As a matter of fact, executive pardon nowadays play a decidedly minor
role in Anglo-American law, and one in any case widely regarded with suspi-
cion. Portia may dazzle, but as legal history has turned out she seems, at this
moment anyway, to have backed the wrong horse. Significantly enough, among
philosophers hostility to the institution of pardon derives from hostility to the
idea that mercy should have any role to play in the penal law.’ The business of
the penal law is to do justice: if a penalty is unjust, then pardon, or forgiveness
in the sense of forbearance to punish, is required by justice, not by mercy. Given
the function of law, if a punishment is just, then mercy is out of place. In con-
nection with the case of Shylock and Antonio, the moral point that must be kept
in mind is that, contra Portia, it is justice and not mercy that requires you not
to take a pound of flesh cut nearest the heart, from a creditor who comes late
to you with a loan payment.
42Mahood, supra, note 38 at 51.
43Compare M. Kelman, A Guide to Critical Legal Studies (Cambridge: Harvard University
Press, 1987) pp. 284ff.
44See K.D. Moore, Pardons: Justice, Mercy and the Public Purpose (New York: Oxford
University Press, 1989) and J. Murphy, “Mercy and Legal Justice” in J. Murphy & J. Hampton,
Forgiveness and Mercy (Cambridge: Cambridge University Press, 1988).
920
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[Vol. 35
Questions about legal detail in The Merchant of Venice have encouraged us
to try to understand the play in terms of the legal, theological, and political con-
text in which it first appeared. What we have extracted from that context has
suggested, I believe, some novel ideas about relations between Shylock and
Portia in the trial scene. This provides some vindication for Posner’s suggestion
that legal material is central to the meaning of the play, and I hope, for the
broader claim that there are on occasion fruitful results to be gained from labor
in the field of law and literature.
