The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Pretty much every lawyer in the English-speaking world has heard of Shakespeare's The Merchant of Venice. Merchant is one of Shakespeare's "problem plays." For a comedy, it isn't very funny, and the ugly treatment of Shylock, the Jewish moneylender, by the play's Christians makes contemporary audiences cringe. What's more, the central plot device is absurd. Shylock's contract with Antonio, which requires the latter to forfeit "a pound of flesh" upon breach, would be void ab initio. The fact that everyone in the play acts as though the laws of Venice (or anywhere else) would honor such a contract is totally unbelievable. The climactic trial scene in Act IV, featuring Portia's famous argument and Shylock's famous downfall, makes for great theater. But, as a legal matter, it is simply preposterous.
Yet lawyers do well to heed Merchant, precisely because of what the play reveals about law's limits. In an essay posted at the Law & Liberty site, I explain why. For Shakespeare's contemporaries, Venice was the commercial republic, a city where people from various cultures could do business together and, it was hoped, learn to tolerate one another. The element that held it all together was a supposedly neutral law of contract. A neutral commercial law, it was thought, could displace deeper conflicts and lead to a peaceful community.
As Allen Bloom observed, Merchant suggests that this theory, which later writers would call the doux commerce thesis, cannot work in the context of deep social division:
Venice was less serene and indifferent to religion than portrayed. But, as a symbol, the city was important. And by drawing the conflict as starkly as he does, Shakespeare means to ask whether the Venetian system can work where intercommunal divisions concern bedrock beliefs and ways of life. His answer is not hopeful. The dispute between Antonio and Shylock over charging interest reflects a deeper conflict about ultimate values that commerce and commercial law cannot resolve. "The law of Venice can force" the two men "to a temporary truce," Bloom writes, "but in any crucial instance the conflict will re-emerge, and each will try to destroy the spirit of the law; for each has a different way of life which, if it were universalized within the city, would destroy that of the other. They have no common ground."
Where such common ground does not exist, the law cannot create it. Law, even a neutral law of contracts, inevitably requires judgment: Which agreements should be enforced, and which should not? And judgment inevitably depends on the values people bring to the law from the wider culture. Where people share values, law does a tolerably good job resolving their disputes. One party wins and the other loses, but both can accept the legitimacy of the system. Where moral divisions run deep and the stakes are high, this is not possible. Law alone cannot persuade people to accept decisions that violate their most basic sense of right and wrong.
At the close of the hearing, Shylock is led away to become a Christian. Antonio receives half of Shylock's goods to use in trust for Shylock's new son-in-law and daughter, and Shylock is forced to leave the rest of his estate to the couple on his death. Portia and Bassanio begin their married life, with Bassanio as the new lord of Portia's estate in Belmont. Commerce in Venice resumes, but outsiders have learned an important lesson. They can make money in the city, but they will never be part of a true community, which requires more than a shared commitment to buying and selling.
You can read the whole essay here.