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In the tout court of Shakespeare: Interdisciplinary Pedagogy in Law

by Desmond Manderson

Manderson-ToutCourt [.pdf]: (Published text as it appears in the Journal of Legal Education)

The Shakespeare Moot Project

A great civilization, said Robert Cover, is to be judged by the quality of its law no less than its literature or engineering or science.1 In particular he meant by law a nomos, which is to say a way of being in the law experienced by members of that community, a way in which their law is seen to be related to their literature, and their engineering, and their science, as part of a continually relevant cultural interaction.2 The measure of interaction is the measure of the connection between law and its citizens, is the measure of civilization itself.

I have for a long time been looking for ways to properly integrate methods of interdisciplinary thinking in my writing and teaching. Typically one does this by teaching literary or other texts and using those texts to shed light on the law: Melville’s Billy Budd,3 Sophocles’ Antigone,4 Kafka’s The Trial.5 Law “and” literature seeks to place these two distinct disciplines next to each other, and allow one to teach us about the social reality or moral values that law ‘itself’ might take into account. The approach was perhaps pioneered by James Boyd White,6 and most eloquently defended by Martha Nussbaum.7 But this is a form of parallel play and not a real integration. My commitment to an interdisciplinary approach is far stronger than any mere comparativism or, if I may coin a phrase, conjunctivitis, might suggest. Law is a literature and, which is more, literature is law, in its form, its power, its interpretative strategies, its discursive effects.

Now one might respond by insisting that law cannot be conjured out of nothingness: it requires a specific institutional form that authorizes and enforces it. But that is entirely to confuse cause and effect. The history of both the common law of England and the European civilian tradition – not to mention more limited jurisprudential events such as Goodrich’s “courts of love” in medieval France8 – emerge by and large as literatures in the first place (explicitly so in the case of the reception of Roman law into medieval Europe) which gained their authority over time at least as much because of the social need they filled and the practical respect they accrued.9 The question of form is undoubtedly relevant to legal – as to any – meaning and rhetoric, but institutionalization within specific State-driven structures is not.10

The treatment of law as if its meaning and its legitimacy were somehow separate from the cultural forces that give birth to it and in relation to which it is understood, has led scholars from John Austin11 and HLA Hart12 to Richard Posner13, to make of law a mere technic for dispute resolution, and a purely hermetic practice beholden to nothing but its own logic. The failure to appreciate that law’s value stems from its cultural integration has amounted to a systematic impoverishment of its capacities and of its relevance to the community as a whole. Our students, in particular, have thus been deprived of the resources by which they might come to feel that law is integrally connected to the things in their lives that have on other occasions and in other ways inspired and formed their identity, whether we are talking about music, or art, or philosophy, or literature. Even from a more practical point of view it is hard to see where a narrowly confined understanding of law could look to find the content and spirit of ethics and justice that is meant – somehow, in ways rarely thought through – to animate it. Without such a personal inspiration and without such a theoretical integration, the lawyers thus produced, borne of this idealism betrayed, are every bet as cynical as one might imagine.

I have often wondered how best to dramatize some of these issues: to ask students to imagine what it might be like to experience the birth of law, and to invite them to be responsible for the emergence of interpretative and normative principles; to encourage them to explore the interpretative connections and differences between literature and law in a real setting; to provide a forum in which students and teachers can think carefully about how our normative beliefs find their way into and through objective legal texts, forming and yet being constrained by its meaning. In particular, I have always thought that any sufficiently rich body of textual material might serve as the basis of a legal system, and would pose very similar questions as to how those texts might become binding and meaningful under the day to day pressures of judicial reasoning. Moreover, I think there is a real advantage in approaching these complex questions indirectly,14 offering therefore to teach students about law (or droit or Recht) – its genesis and evolution, its structures of reasoning and rhetoric, and the relationship of facts to texts to norms – without ever making the mistake of reducing it to the content of any particular ‘law’ (or loi or Gesetz ) whatsoever. As Shakespeare puts it in Sonnet XLIII:15

When most I wink, then do mine eyes best see,
For all the day they view things unrespected;
But when I sleep, in dreams they look on thee,
And, darkly bright, are bright in dark directed…

This past year I have had the good fortune to put these ideas into effect, with the birth at McGill University of the Shakespeare Moot Project. The project is explicitly inter-disciplinary and brought together four graduate students in English literature, under the direction of Professor Paul Yachnin, a well-known Shakespearean scholar and my colleague in this enterprise, along with an equal number of advanced students in law. Each team paired a student in law with one in literature. They worked together, as applicants or respondents, on a fictional legal problem of some complexity and controversy, as will be made apparent below. They were asked to prepare a factum and then two moots were held to argue the case orally before a specially commissioned moot court comprising myself, Professor Yachnin, and Professor Bristol, also from the department of English.

The rules of procedure of the Court are explained as follows: the sole “Codex, Digest, and Institutes” of the Court are comprised by the complete plays of William Shakespeare. So the questions our students had to think through were as follows: if Shakespeare were the law, what arguments on the basis of the plays would they make? What normative and legal position emerges from the best reading of the plays most relevant to this problem? What is Shakespeare’s own understanding of law in relation to other social forces? Centrally, the students were asked to think about the natural disagreement that was likely to emerge – between different interpretations of passages and plays, between the principles espoused by different players in the dramas, and between different plays. The students were asked to give advice to the Court on the interpretative strategies that would allow the Court to decide and to judge faced with these intrinsic choices.

The idea was thus to map a supreme court’s constitutional work as closely as possible: secondary literature on the plays would of course be relevant, but only in so far as it aided the court in forming a sound interpretation of the material before them; cases from other jurisdictions were met, as always, with a studied and polite disdain. Shakespeare, the whole of Shakespeare, and nothing but Shakespeare; this was to be the truth of our jurisprudence. This of course made the project radical and strongly interdisciplinary. It was not a question of the law of Shakespeare, an attempt to recreate in substance or style the relevant legal environment of the sixteenth century.16 It was not a question of the law in Shakespeare, an exercise in determining the law as it appears to operate in those of the plays that have a strong legal component.17 It was rather a question of Shakespeare as law. We were to proceed upon the assumption that the whole of the corpus had acquired the status of binding statute: precisely the posture of ‘as if’ that underscores every legal system in one way or another. Shakespeare was to be our law, tout court.

The students immediately established a powerful rapport amongst themselves and with their teammates. Their enthusiasm and their love of learning proved infectious, and they were soon studying a wide range of theoretical material on the nature of law and legal interpretation, including Cover,18 Hart,19 Fuller,20 Dworkin,21 Goodrich,22 and Derrida,23 as well as the abundant secondary literature in Shakespearean studies. Furthermore, the students proved model interdisciplinary scholars: they taught each other, and this of course applied to Paul and myself no less than to our students. The law students taught the English students about the preparation and presentation of a factum, practice and procedure in a courtroom, oral argument, and much else besides. The graduate students in English gave the lawyers a crash course in Shakespearean studies, and used their far superior knowledge of the plays and their themes to invaluable effect. And at the same time, each learnt more about the practices in which they met as friends rather than strangers, such as how and why interpretation takes place, different argumentative strategies, and so forth. It is my belief that everyone engaged in this project came away with a strong sense of the interdisciplinary connection between bodies of knowledge that I hope will be of continuing significance to them.

The case Professor Yachnin and I developed, after a careful discussion of current issues within our respective disciplines, appears below. It centered on an issue that is of abiding importance to both: the proper relationship between a duty of obedience and a duty of justice. The issue formed the centerpiece of the Hart-Fuller debate almost fifty years ago, of course, and invites consideration as to the nature of interpretation and legal legitimacy itself.24 Shakespeare’s understanding of the duty to obey kingly authority, weighed against the duty to resist it, is equally contentious and recent scholarship on the issue invites a range of different readings.25 Indeed, from the first, we felt the need to try and focus the legal materials somewhat. For various reasons, the case eventually centered on Henry V26 and The Winter’s Tale, both of which concern in different ways the conflict between injustice and authority, and The Merchant of Venice, whose discussions on mercy, justice, and law are too well known to require elaboration here. The arguments relating to these cases in our jurisprudence were argued with enormous vigor and care, and their general tenor will emerge from the judgment that I have, for the benefit of posterity, appended below.27

Other cases made a brief appearance and might repay more careful study, including Richard III, Titus Andronicus, and Macbeth. How a reading of these cases might effect the Court’s decision here is, no doubt, a problem for future courts. To date we have only the one decision, one precedent from which the law of the Court of Shakespeare will steadily build and evolve. It seems certain that there will be further cases. Over one hundred people attended the inaugural sitting of the Court. Already we have had to triple the size of the course for next semester, and I have had to field several inquiries from other universities wishing to participate in this innovative pedagogical exericse.

This case is to be cited as In re Attorney General for Canada; ex parte Heinrich (2003) 1 C. of Sh. 1.

See Statement of Facts

See Manderson J

1. Robert Cover, Nomos and Narrative, 97 Harvard L. Rev. 4 (1983).
2. Id. at 4-6.
3. Herman Melville, Billy Budd and other stories (Cambridge, Mass., 1948).
4. Sophocles, Antigone: A tragedy (Indianapolis, In., 2001).
5. Franz Kafka, The Trial (New York, 1998).
6. JB White, Heracles’ Bow (Madison, 1985); The Legal Imagination (Boston, 1973).
7. Martha Nussbaum, Poetic Justice (Boston, 1995).
8. Peter Goodrich, Law in the Courts of Love: literary and other minor jurisprudences (London & New York, 1996).
9. Harold Berman, Law and Revolution: the formation of the Western legal tradition) (Cambridge, Mass., 1983).
10. Roderick Macdonald, Office Politics, 40 U.T.L.J. 419 (1990); Lessons of Everyday Law (Montreal & Kingston, 2002).
11. John Austin, The Province of Jurisprudence Determined (New York & Cambridge, 1995).
12. HLA Hart, The Concept of Law (Oxford, 1961).
13. Richard Posner, Law and Literature: A misunderstood relation (Cambridge, Mass., 1988).
14. See also Desmond Manderson, Statuta v Acts: Interpretation, music, and early English legislation, 7 Yale J. Law & Humanties 317, 323-4 (1995).
15. William Shakespeare, Shakespeare’s Sonnets, XLIII, lines 1 – 4 (New Haven & London, 2000).
16. Reference to the law of Shakespeare, law in shakespeare’s time?
17. Article on Measure for Measure?
18. Supra note 1.
19. Supra note 12.
20. Lon Fuller, Positivism and Fidelity to Law – A reply to Professor Hart, 71 Harvard L.Rev. 630 (1958).
21. Ronald Dworkin, Law’s Empire (Cambridge, Mass., 1986).
22. Peter Goodrich, Reading the Law (Oxford & New York, 1986); Legal Discourse (New York, 1987).
23. Jacques Derrida, Before the Law 181-220 in Derek Attridge, ed., Acts of Literature (New York & London 1992); The Law of Genre 221-252 in Derek Attridge, ed., Acts of Literature (New York & London 1992); Force of Law: The mystical foundation of authority, 11 Cardozo L. Rev. 919 (1990).
24. HLA Hart, Positivism and the Separation of Law and Morals, 71 Harvard L. Rev. 593 (1958).
25. Scholarship on law and obedience in Shakespeare.
26. All references are to William Shakespeare, The Complete Works Riverside Edition, Blakemore Evans, ed. (Boston, 1974).
27. I have not included the text here of the concurring judgments of Yachnin and Bristol JJ. Texts are to be found on the website of the Shakespeare Moot Project.

Desmond Manderson, "In the tout court of Shakespeare: Interdisciplinary Pedagogy in Law" (2003) Journal of Legal Education (Journal archives available online to McGill subscribers; Recent issues in Current Periodicals Area)

Love on Trial: Nature, Law, and Same Sex Marriage in the Court of Shakespeare

by Desmond Manderson and Paul Yachnin

MandersonYachnin-LoveOnTrial [.pdf]: (Published text as it appears in the McGill Law Journal)

The McGill Shakespeare Moot Project is a radical inter-disciplinary exercise now in its second year. As I have elsewhere explained at greater length,1 the project pairs graduate students in English literature with law students. Their assignment is to prepare a factum on a contemporary and contentious legal problem, and then to argue it orally before a specially commissioned moot court comprising myself, my English partner in this endeavour Professor Yachnin, and several guest judges.

What has made the project so radical in its approach to teaching and understanding questions of interpretation is this: the rules of procedure of our Court state that the sole “Codex, Digest, and Institutes” of the Court are to be treated as emanating from the complete works of William Shakespeare. So the questions our students have had to think through were as follows: if Shakespeare were the law, what arguments on the basis of the plays would they make? What normative and legal position emerges from the best reading of the plays most relevant to this problem? What is Shakespeare’s own understanding of law in relation to other social forces? Centrally, the students were asked to think about the natural disagreement that was likely to emerge – between different interpretations of passages and plays, between the principles espoused by different players in the dramas, and between different plays. The students were required to assist the court in determining how it ought to decide and to judge faced with these intrinsic choices.

Shakespeare, the whole of Shakespeare, and nothing but Shakespeare was to constitute our jurisprudence. This of course made the project inter-disciplinary in a very strong sense. It was not a question of the law of Shakespeare, an attempt to recreate in substance or style the relevant legal environment of the sixteenth century.2 It was not a question of the law in Shakespeare, an exercise in determining the law as it appears to operate in those of the plays that have a legal component.3 It was rather a question of Shakespeare as law.4 We were to proceed upon the assumption that the whole of the corpus had acquired the status of binding statute: precisely the posture of ‘as if’ that underscores every legal system in one way or another.5

If the task then seems somewhat strange, it thereby draws our attention to the same strangeness at the heart of other interpretative exercises – such as trying to decipher what Shakespeare means, or trying to determine what a Constitution mandates. Indeed, as one develops a new legal system one glimpses in the first place the importance of the very aspects of our own that are so fundamental to our thinking as to pass utterly without comment. The Anglo-American legal system, for example, structures the world in quite particular terms: public law, private law, family law. If the Court of Shakespeare were simply to allocate plays, for example, according to these prefabricated divisions, then we would have done nothing but replicate that which already exists. We would have reinvented the same.6 But the first and greatest power of taxonomy is that it conceives of the world a certain way and divides it along those lines and no other. This is the Court of Shakespeare’s first order of business and it rightly insists on an authentic Shakespearean division: comedy, tragedy, history. One immediately thinks of Jorges Borges’ famous story of the Chinese encyclopedia, and of Foucault. The classification system by which “a certain Chinese emperor” divided the animal kingdom is now such a cliché as to bear no repetition. I refer the reader to anything written about Foucault in the past twenty years; or about Borges, or animals, or China for that matter. The classification to which the quote belongs is as polymorphous as the classification system to which it refers. Still, the point is important. Faced with the bizarre otherness of someone else’s order of things, one is struck by “the limitation of our own, the stark impossibility of thinking that.”7

Once past the initial strangeness of a new legal vocabulary, one is struck most by the sameness of the problems faced by legal systems. The essence of each and every law, like the essence of each and every literature, involves a problem: the passage of time. The aporia of time is the aporia of law.8 All laws find their application at a time different from their initial promulgation: bluntly put, their applicability over time and to various persons is what makes them laws. That is the principle behind the prohibition of bills of attainder.9 But to breathe life into these general pronouncements, these ‘laws’, therefore requires us to take an imaginative leap which the original text cannot predict or prevent. Often enough the leap is so small as to pass unnoticed; sometimes even in the common law, it asks us to decide whether a decomposing snail, for example, is like or unlike a local council’s fire fighters.10 The more established and general the law, the more acute becomes the problem. It is true that in the law of Shakespeare, we are being asked to apply the works of a playright to a circumstance four centuries removed. But the Constitutional courts of other countries face problems equally difficult if slightly less dramatic. The Constitutions of the United States or Canada or Australia make no mention of space travel, or the internet, or genetically modified organisms. This tells us nothing in the slightest bit significant about how they are to be treated. The passage of time at the heart of law obliges us to be imaginative; it demands of us that we think about the ideas and purposes that underscore the specific (and therefore partial and imperfect) statements of the law.

The first case decided by the Court, In re Attorney General for Canada; ex parte Heinrich,11 concerned whether a concentration camp guard in World War II ought to be brought to trial fifty years’ later. The Court was therefore asked to confront the jurisprudential problem of the extent to which obedience is a virtue or a necessity within a legal system, through the lens of Henry V and The Merchant of Venice. And it was asked to confront the literary problem of Shakespeare’s own conception of individual responsibility in the face of governmental authority, through the lens of HLA Hart and Lon Fuller. The yoking together of theory and practice in both directions proved an unusually illuminating experience for all concerned. Law gave to the literature the sharper edge of lives at stake; literature gave to the law the richer depth of worlds imagined.

This year’s case took a question even more topical: same sex marriages. The serendipitous recognition of the importance of this and related questions by this special issue of the McGill Law Journal, both evidences this topicality, if proof were needed, and provides the court with a highly appropriate forum in which to present its findings. Drawing its impetus from the recent Halpern decision in Ontario,12 in Attorney General of Canada v Pete Pears, Ben Britten & Ors13 the Court of Shakespeare was asked to consider the meaning and importance of marriage as an institution, and to ask whether “the union of a man and a woman” was a necessary component of it.

It is at first glance paradoxical that in last year’s problem the Attorney General refused to recognize this court’s jurisdiction, insisting that the Court of Shakespeare improperly usurped the legal supremacy of Canada. For this year the Attorney General has purportedly brought the action now before the court, having lost in the Canadian courts his or her earlier attempt to preserve the orthodox definition. Perhaps under conditions of modern pluralism such as pertain in the world today this shift in strategy simply depicts a political response to the multiplication of normative orders.14 Or perhaps under conditions of modern sovereignty, this simply describes governments as they are: pragmatic bodies with no particular commitment even to abide by their own rules, always prepared to select the structure that best suits their interests on any particular day.15 But perhaps – just perhaps – the two are not unrelated, and the hollowness we detect in the latter amplifies the resonances of the former. In which case, we see here a tiny shard of a highly pertinent problem confronting the role and rule of law in the current global political environment: our story mirrors in miniature one of the ways in which the modern state continues ironically to undermine its own legitimacy exactly as and by insisting on its own untrammeled power.16

Although a very different kind of problem, the present case starkly raised fundamental questions of interpretation that combine both substance and form. As a matter of form, how we are to interpret a fixed document, such as a constitution or a play, in rapidly changing social conditions, continues to trouble and provoke courts everywhere. As a matter of substance, how we are to interpret a settled institution, such as marriage or the law, in rapidly changing social conditions, likewise continues to trouble and provoke communities everywhere. Again, the singular strength of the Shakespeare Moot Project is that it allows us to understand these problems as related to each other, and, furthermore, as natural and inevitably occurring interpretative challenges, rather than as anomalies to be ignored or eliminated.

Furthermore, the problem has once more brought sharply into focus several important questions in contemporary Shakespearian studies, including his conception of hetero- and homo- sexuality in light of his undoubted respect for orthodox social forms. The Shakespearean canon strongly esteems both self-fulfillment in love, and respect for community norms of propriety: esteems each as separately compelling and as mutually constitutive. The difficulty for this jurisdiction is that his texts do not tell us how this balance should be struck, and, being Shakespeare, ambiguity and tension are inherent and ineradicable elements. We are faced then, with a literary problem equivalent to “the rights critique” in the jurisprudence of the Anglo-American common law.17 The language of value – like the description of rights as “trumps”18 – fails to tell us what to do when they clash. It is sometimes said that “rights talk” thereby generates heat but no light on the resolution of social problems. The same danger awaits us here.

The question posed by this case is of both abiding and contemporary significance. The current debate on ‘same sex marriage’ has attracted widespread interest, a curious sociological phenomenon that need not detain us now. In this debate, the question of the nature and purpose (the two are necessarily joined together19) of marriage is central. The dispute is often posed as pitting traditionalists against radicals; those for whom the conventional meaning of marriage must be respected against those for whom all institutions are ultimately subject to the pragmatic needs of public interest as we conceive it now. The former distrusts change, and the latter discards continuity.20 There is a third way, that seeks to understand these two dimensions in light of each other, and that way is law.21 In law, as opposed to politics, we do not seek to trump tradition with policy or vice versa, but rather to arrive, through a dialogic engagement, at a better understanding of them both. If law has any merit, and necessary connection to justice in the world, it lies in this, and the Shakespeare Moot Project is committed to exploring it.

Why should anyone care what we decide here today? This court has always defended its jurisprudence on the grounds that Shakespeare is not just postulated as a constitutive force in our modern culture: it is such a force. The normative force of law in this jurisdiction derives from the cultural force of its sources; perhaps it might be said that in other legal systems the relationship between cause and effect is more nearly reversed.22 In particular, the case of Pears & Britten does not take sides as between orthodoxy and heresy, if I may put matters so crudely.23 Rather, it provides us with an unparalleled opportunity to interrogate the claims and heritage of the conventional claim itself, which is sometimes rather dogmatically asserted. Any claim for the ‘essential nature’ of marriage meets a most important proving-ground here. If the core values of our culture’s understanding of the institution of marriage are enacted24 in Shakespeare – and the Court of Shakespeare works on the assumption that they are – then what this case decides is of great importance to the social debate that has engendered it. And if those core values are not memorialized in Shakespeare, then one wonders where one ought to look next.

This case may be cited as Attorney General of Canada v Pete Pears, Ben Britten & Ors. [2004] 2 C. of Sh. 1; (2004) 49 McGill L J [xxx].

See Statement of Facts

See Manderson J

1. Desmond Manderson, “In the tout court of Shakespeare: Interdisciplinary pedagogy in law” (2004) 54 Journal of Legal Education 1-19.
2. Many authors also treat both concurrently, looking at Shakespeare’s legal context as well as how his plays reflect general problems or well-written fact patterns that remain interesting to analyze. See generally George W. Keeton, Shakespeare’s Legal and Political Background (London, 1967); Paul S. Clarkson & Clyde T. Warren, The Law of Property in Shakespeare and Elizabethan Drama, 2nd ed. (New-York, 1968); Darryl J Gless, Measure for Measure, the Law, and the Convent (Princeton, N.J., 1979) chap. 2; Edna Zwick Boris, Shakespeare’s English Kings, the People, and the Law: A Study in the Relationship between the Tudor Constitution and the English History Plays (Cranbury, NJ, 1978); Theodor Meron, Henry’s Wars and Shakespeare’s Laws: Perspectives on the Law of War in the Later Middle Ages (Oxford, 1993);
3. Edward J. White, Commentaries on the Law in Shakespeare (St-Louis, Mo., 1911); William Lowes Rushton, Shakespeare’s Legal Maxims (Liverpool, 1907); C.K. Davis, The Law in Shakespeare (St. Paul, Minn., 1884); Daniel J. Kornstein, Kill All the Lawyers? Shakespeare’s Legal Appeal (Princeton, N.J., 1994); Dennis R. Klinck, “Shakespeare’ Richard II as Landlord and Wasting Tenant”, in Un-Disciplining Literature, eds. Kostas Mysiades & Linda Mysiades, 190 (New York, 1999); Theodor Meron, Bloody Constraint: War and Chivalry in Shakespeare (Oxford, 1998); George W. Keeton, Shakespeare And His Legal Problems (1930) (Buffalo, NY, 1987); O. Hood Phillips, Shakespeare and the Lawyers (London, 1972), chapters 7, 8, 9; William M. Hawley, Shakespearean Tragedy and the Common Law: The Art of Punishment (New York, 1998); John Denver, “William Shakespeare and the Jurisprudence of Comedy,” 39 Stan. L. Rev. 825 (1987); Jules Gleicher, “The Bard at the Bar: Some Citations of Shakespeare by The United-States Supreme Court,” 26 Okla. City U.L. Rev. 327 (2001); Laurie Rosenweig Blank, “The Laws of War in Shakespeare: International vs. Internal Armed Conflict,” 30 N.Y.U. J Int’l L. & Pol. 251 (1998); Robert W. Peterson, “The Bard and the Bench: An Opinion and Brief Writer’s Guide to Shakesepeare”, 39 Santa Clara L. Rev. 789 (1999).
4. Ian Ward, Shakespeare and the Legal Imagination (London, 1999) at 15-19, seems to come the closest to this idea. He makes the argument that Shakespeare can be seen as supporting the idea of a communitarian society. He nonetheless readily recognizes that any reading of Shakespeare actually shows more about the interpreter – whether she is a Marxist, a patriot, postmodern deconstructionist or new historicist – than about the bard himself.
5. The posture of ‘as if’ is both law’s greatest strength and its greatest imaginative limitation. For a peculiarly succinct exposition of the dynamics of the problem, see the concurring judgment, infra, of Justice Macdonald in this case: [2004] 2 C. of Sh. 1; (2004) 49 McGill L J. [xxx].
6. Jorge Luis Borges, “Pierre Menard, Author of the Quixote” in Collected Fictions (New York: Penguin, 1998) 88.
7. Michel Foucault, The Order of Things (New York: Vintage, 1970) xv; Jorge Luis Borges, “The Analytical Language of John Wilkins,” in Selected Non-Fictions (Penguin, 2000).
8. Richard Beardsworth, Derrida and the Political (New York, 1996), 101.
9. See Constitution of the United States, Article I, Section 9; on the principle of legislative generalizability, see also Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 5.
10. Donoghue v Stevenson [1931] AC 562; Pyrenees Shire Council v Day (1998) ALJR 152.
11. [2003] 1 C. of Sh. 1; 54 Journal of Legal Education 1.
12. Halpern v. Attorney General of Canada, 2003 Ont. C.A. LEXIS 271.
13. [2004] 2 C. of Sh. 1; (2004) 49 McGill L J. [xxx].
14. See for example developments in the United Nations; European Community Law; the International Criminal Court.
15. See Rasul, Shafiq, et al v. Bush, President of U.S., et al, Docket #03-334 (United States Supreme Court, cert. granted); Al Odah, Fawzi K., et al. v. United States, et al, Docket #03-343 (United States Supreme Court, cert. granted). See also Migration Amendment (Excision From Migration Zone) Act 2001 No. 127, 2001 (Australia).
16. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Meridian: Princeton University Press, 1998); http://www.egs.edu/faculty/agamben/agamben-we-refugees.html See also National Security Strategy of the USA, September 2002, http://usinfo.state.gov/topical/pol/terror/secstrat.htm
17. See Martha Minow, “Interpreting Rights” (1987) 96 Yale LJ 1860; Mark Tushnet, “An Essay on Rights” (1984) 62 Texas LR 1363.
18. Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: 1978).
19. Michael Moore – “A Natural Law Theory of Interpretation” (1985) 58 South. Cal. L. Rev. 277.
20. Ronald Dworkin, Law’s Empire (Cambridge, Mass.: 1986) chapters 3 – 4.
21. Id., chapter 5.
22. Jacques Derrida, “Force of Law: The Mystical Foundation of Law’s Authority” (1991) 11 Cardozo Law Review 949 and Jacques Derrida, “Before the Law” in Acts of Literature, Derek Attridge, ed., (New York: Routledge, 1992), 199 play with the complexity of just this relationship of authorities.
23. See Desmond Manderson, “Apocryphal Jurisprudence,” (2001) 23 Studies in Law, Politics and Society 81-111.
24. It is hardly a coincidence that enactment is at once both legal and theatrical in its resonances. For as plays are both productive and performative, so too as legal judgments. The concept of the Act, whether the Act of a drama or the Act of Parliament in each case implies a performance with constitutive power: and see Desmond Manderson, “Statuta v. Acts: Interpretation, Music, & Early English Legislation” 7 Yale Journal of Law & Humanities (1995) 317-366.

Desmond Manderson and Paul Yachnin, "Love on Trial: Nature, Law, and Same Sex Marriage in the Court of Shakespeare" (2004) McGill Law Journal / Revue de droit de McGill 49

'As if' - the Court of Shakespeare and the relationships of law and literature

by Desmond Manderson*

Excerpt from Desmond Manderson, Paul Yachnin, et al, "Not Drowning, Waiving: Responsibility to Others in the Court of Shakespeare" in a forthcoming special issue of Law, Culture & the Humanities

Not Drowning, Waiving [.pdf]: (Pdf version of the text as it will appear in Law, Culture & the Humanities)

I. Law and the day after

The McGill Court of Shakespeare is now in its fourth year. Each year the Court imagines and constructs a new case to be mooted, and assigns students to argue the case before it in a public trial. Without wishing to trespass too much on previous explanations I have written about this process,1 this is not about the law in Shakespeare's time, or what Shakespeare says about law: it is something far more radical. The Court thinks of Shakespeare simply as law, just as we think of the Civil Code or the judgments of the Supreme Court as law. By a process of dramatic invention and indirection, the project seeks to model and to explore the nature of interpretation, the development of a legal tradition, and the way in which value and meaning intersect in the creation of law and literature alike.

Clearly there are pedagogic elements to this task. The Court presents those who participate in it, whether as judges, as legal counsel, or as audience--clients have they none, but spectators are there many--with an unusual opportunity to create an organic and responsive model for the ways in which resources to articulate social values can be developed; to explore the ways in which traditions of legal and textual interpretation are developed and modified; to offer new insights into the normative implications of a body of work of supreme cultural significance; to explore the particular nature of Shakespeare's drama, and of literature generally, as a forum for the explorations of normative social values; and to consider, as broadly as possible, how literature and literary thinking might influence and might have already influenced law and legal thinking.

Pairing Law students with graduate scholars in English, the Court encourages a depth of connection between the discourses of law and the humanities that is rarely achieved. Law and English students learn about the processes of reasoning and analysis in another discipline, and they come to appreciate the cultural embeddedness of these forms. At the same time, students develop their skills of argument in a new and challenging context. Above all, those who participate in the Court of Shakespeare find themselves at a rare moment of creativity. They do not study the emergence and nature of a legal system. They build one.

1. But what is strange or literary about ‘the court of Shakespeare’? It claims a universal jurisdiction and in that, perhaps, shows itself a creature of this century. The territorial conception of modern law, very much its defining feature over the previous few centuries,2 is no longer so automatically assumed. One need look no further than the International Criminal Court to find a contemporary claim to law unbounded by space.3 Perhaps it is as well to remind ourselves that jurisdiction by consent or allegiance is not, however, such a radical innovation. The Catholic Church, of course, claimed and continues to claim legal authority over its adherents no matter where they reside; the law of admiralty is no less universal amongst those who consent to be bound, regardless of where they live.4

Indeed, when we think a little more carefully, it becomes apparent that the coincidence of space is neither (always) a necessary nor (ever) a sufficient condition for legal authority over subjects. For Fish, our membership of a particular ‘interpretative community’ creates the binding nature of obligations;5 for Hart, our ‘internal perspective’ gives to orders their meaning and their morality;6 for Cover, the origin of law itself no less than the trajectory of its interpretative commitments derives from membership in a community characterized by ‘a common body of precept and narrative’ in which ‘discourse is initiatory, celebratory, expressive, and performative’.7 Ronald Dworkin, too, is at pains to insist that those ‘associative communities’ which legitimately extract obligations from us, are not born out of the bare fact that we happen to share the same lump of earth, but stem from the fact that we have developed principles that cohere together as a whole and collectively matter to us.8 In all these writers, one gets the sense that law emerges and is maintained little differently in a State, a city, or a world, than in the small worlds that comprise it: clubs, societies, families, friends, religions or unions. In each case, what makes law, law, is a complex and fluid combination of happenstance and commitment.

2. It is certainly true that the enforcement of law is an intrinsic part of how we experience it, and the ‘court of Shakespeare’ has no enforcement apparatus at all.9 But all the writers I have just referred to insist that the dimension of force and the dimension of commitment are sociologically distinct, existing in different ways and in different balances depending on the community and the issue in question. As Cover puts it, ‘there is a radical dichotomy between the social organization of law as power and the organization of law as meaning.’10 Moreover, while the force in question might be more or less explicit, more or less physical, law as such cannot be said to exist without the dimension of interpretative practices articulating normative commitments over time. The Court of Shakespeare finds these binding commitments in a particular and discrete body of texts--the complete works of Shakespeare--just as a religion finds them in the Qran or Torah, or the people of Quebec find them in the Code Civil,11 or the people of the United States in their Constitution. Or rather in each case the courts are on a continual quest to find them, since a final and determinative reading will always elude us.

3. What makes the Court of Shakespeare unusual is therefore neither its universal jurisdiction nor its primary allegiance to a text. Nor, to mention a third feature, the fact that it claims this interpretative jurisdiction without ever having been granted it by another body’s degree or society’s acclamation. This is the problem of Kelsen’s grundnorm: if law is defined as a systemic structure of authorized rule-making, who authorized the first law that authorized the rest?12 Yet the Court of Shakespeare is not alone in facing this problem. All legal systems face some such crisis at their point of origin; they are in the end parthenogenetic or self-legitimating, and can only wait to see if future populations will have rallied around the flag that they hopefully and speculatively hoist. Legal systems are judged successes or failures, real or fantasies, by the future not the present.13

There is a plaque at Rugby School bearing the following inscription:

THIS STONE
COMMEMORATES THE EXPLOIT OF
WILLIAM WEBB ELLIS
WHO WITH A FINE DISREGARD FOR THE RULES OF FOOTBALL
AS PLAYED IN HIS TIME
FIRST TOOK THE BALL IN HIS ARMS AND RAN WITH IT
THUS ORIGINATING THE DISTINCTIVE FEATURE OF
THE RUGBY GAME
A.D. 182314

Here too, then, William Webb Ellis’ (no doubt apocryphal) act of illegality becomes recognized, but only retrospectively, as an act of legal foundation. Does the Court of Shakespeare make law? It’s far too early to tell.

Not only at its point of origin but in its daily operation, law is fundamentally a claim and not yet a reality. The Kantian model for law is the categorical imperative: ‘Act as if the maxim of your action were by your will to turn into a universal law of nature.’15 As if. As Derrida remarks,

This ‘as if’...almost introduces narrativity and fiction into the very core of legal thought, at the moment when the latter begins to speak and to question the moral subject. Though the authority of the law seems to exclude all historicity and empirical narrativity, and this at the moment when its rationality seems alien to all fiction and imagination...it still seems a priori to shelter these parasites.16

Law is necessarily hypothetical, and this in two ways: first by acting ‘as if’ certain textual fragments--an Act of Parliament, for example--will have definite social consequences (which is by no means self-evident, always partial, and sometimes downright unrealistic); and second because the articulation of a not-yet-existent future is precisely the sole aim of law. Law is necessarily utopian, oriented towards a promise which it attempts to bring about but which does not yet exist.17 In this way too, no less than in its textual orientation, law and literature are mutually implicated. Law is nothing but a fiction made real by the faith that others vest in it--in a word, myth.18

4. As opposed to these features, which the Court of Shakespeare shares with all legal systems, what is peculiar about the Court is that the causal relationship between institution and community appears inverted. The Court imagines a community that will be bound by the law it creates, a community constituted by its shared belief in the value of the Court’s founding texts and perhaps by its faith in the Court’s own ability to render wise and just decisions--but this community does not yet exist. In this particular, it seems very different from courts that throughout history have emerged in response to a real need: either the need of a social power to impose itself, or the need of a social community to sustain itself. The Court of Shakespeare is like a Field of Dreams, constructed in the wild hope that ‘if you build it, they will come.’19 Like many an optimistic lawyer before it, the Court has hung up its shingle but still awaits its clients. Here, then, the Court likewise shows itself a child of its age: akin to late capitalism, the Court seems to assume that need itself is capable of being invented.

In this case, the hypothetical nature not only of law’s commands but, more surprisingly, law’s community recalls Elaine Scarry’s distinction between the made up and the made real.20 All artifacts, she says, are ‘made up’--including law as well as poetry. But artifacts like law go through a second stage denied to works of art: we forget that they have been invented, and make them real through social action. The contrast is, of course, far too simplistic: many people do experience theatre and film precisely by suspending their disbelief and engaging with the characters as if they were real.21 But there is also an element of undeniable truth to Scarry’s dichotomy: that feeling of reality does not extend beyond the performance itself. No matter what we feel at the time, we leave the theatre. With law, it is different. When the performance is over, the ‘made real’ of law continues to exert a hold over us. No-one who has sat in on the Court of Shakespeare could forget for a moment that the cases it hears are simply performances by students from Law and graduate students in English, teamed to argue a fictional case before a specially commissioned bench of resident and visiting scholars. And likewise no-one who has sat in on the Quebec Court of Appeal could forget for a moment that its decisions have real consequences that extend well beyond the time and place of judgment.

Again, the point is nevertheless a matter of degree. In societies in the process of collapsing, being born, or radically changing, many courts and other institutions have a similar air of unreality about them. The McCarthy hearings provide a relatively familiar example.22 There was a time during which Joe McCarthy had the power to ‘make real’ his pronouncements. But at some point, he lost his credibility so completely that no-one could any longer fail to notice that he was just making it up. The House Un-American Activities Committee still sat, but its status had drastically altered. This was a social phenomenon in which so many people were no longer prepared to ‘suspend their disbelief’ that the Committee simply slid from reality to fantasy. As HUAC’s chief judge, in a manner of speaking, McCarthy was probably the last to realize that he was no longer presiding over the law, but performing in a theatre.

So Scarry’s distinction between the ‘made up’ and the ‘made real’ is indeed valuable, although I must insist that which counts as which is a social judgment in no way inherent in the form of something or the label affixed to it.23 What makes the Court of Shakespeare an exercise in literature and not law is exactly the fact that not one person is yet prepared to accede to its jurisdiction or its judgments...the day after. It still awaits the society prepared to declare its love and need of it. Meanwhile, like an Old Testament prophet, the Court prepares the ground for something still to come. It does so by attempting to prove to a skeptical world the viability of its project.

II. Jurisprudence of the Court of Shakespeare

1. The judgments of the Court are developed through an arduous and secretive process the intricacies of which could hardly be revealed without some cost to the Court’s nascent mystique.24 But the Court’s decisions, of which there are now three (with a fourth in process), are beginning to form a body of precedent which structures, reflects, and transforms--in a word, juridifies--our reading of the primary materials comprised by the Shakespearean canon itself. In the Court’s first case, In re Attorney General for Canada; ex parte Heinrich [2003] 1 C. of Sh. 1,25 the Court articulated the basic foundations of its own interpretative practice, and in addition explored the nature of responsibility in law. The Court (Manderson, Yachnin, and Bristol JJ) unanimously insisted that the Shakespearean corpus recognizes a responsibility that goes beyond a mere duty to ‘follow orders’ and is the corollary of the respect for individual identity which the Shakespearean focus on character has helped to spawn. Speaking for the Court in that case, Justice Manderson wrote,

This is the first law of Shakespeare: our responsibility to law is dependent on our relationship to its makers. It is a relationship that must be marked by good faith; and it must preserve intact the soul--which is to say the identity and the capacity for the exercise of responsibility--of the subject. The exact parameters of this principle are no doubt not yet clear and future cases will be called upon to reassess its boundaries. But none of this was in any measure the nature of the Nazi regime which Heinrich served, with what alacrity we do not know. But if we are to protect his soul then we must recognize that he had an identity in this, and a responsibility in this, and demand therefore an accounting. He cannot hide behind the coattails of the lawful authority, because the law of Shakespeare as it emerges, in different ways, from each of The Winter’s Tale, Richard III, and Henry V, agree with Lon Fuller on this point: there was no lawful authority.26

2. Yet by the time of the next case, Attorney General of Canada v Pete Pears, Ben Britten & Ors. [2004] 2 C. of Sh. 1,27 a division could already be perceived on the Court. To the language of identity and responsibility, and an organic rather than an originalist approach to interpretation, the Court can be seen to add and elaborate a further term: faith. Faith, in the jurisprudence of the Court drawing largely on The Winters’ Tale, is not here a religious term but indicates the trust and respect we ought show to others in consequence of their uniqueness and the irreducibility of their being. It is certainly the Court’s consistent view that in cases like The Winter’s Tale, The Merchant of Venice, and Othello, legal or quasi-legal proceedings draw out for us, by way of implicit contrast, how important are those things--like love, fidelity, and trust--that form the basis of a legal order and yet cannot ever be proved to law’s remorselessly forensic satisfaction. So Hermione, for example, refuses to accede to King Leontes’ demand that she put her love for him on trial and subject it to forensic interrogation:

Since what I am to say must be but that
Which contradicts my accusation, and
The testimony on my part no other
But what comes from myself, it shall scarce boot me
To say ‘Not guilty’. Mine integrity
Being counted falsehood shall, as I express it,
Be so receiv’d.28

There is then, in the view of the Court of Shakespeare, a ‘beyond’ to law, a grundnorm, which forms the basis of its authority and which ought to be respected but cannot be enforced by it.

But here the coherence of the Court begins to run aground. This case concerned the meaning and purpose of marriage as an institution. The majority of the Court (Manderson, Bolongaro and Macdonald JJ), facing an application for the recognition of ‘same sex marriage’ brought by several gay couples, upheld a reading of Shakespeare filtered through distinctly modern eyes. For their Honours, Shakespeare’s depiction of marriage as an intimate faith and a field of sacrifice that is world-creating (and law-founding) led them to reject the undoubtedly gendered denouements of the ‘marriage plays’ as of only minor jurisprudential import. Yachnin J (dissenting) insisted to the contrary that we should not read Shakespeare with such liberal assumptions.

In this view, the individual is less sacrosanct than are institutions such as kingship or marriage. Shakespeare is therefore a precursor but by no means the poet of modernity: so far as I am able to tell, he values same-sex relationships highly--in certain contexts he even places them above heterosexual couplings--but I do not believe that he provides any salient principles that should convince this Court to include same-sex love within the institution of marriage.29

Indeed, Yachnin J turns the notion of faith around. For him, the implication is rather that certain elements, such as love and faith between persons, essential as they are to legal civilization, stand necessarily and desirably outside the control of law. Drawing on his reading of some of the Sonnets (whose status as a binding or merely persuasive authority in the Court has yet to be determined30), his Honour argues that Shakespeare does not by any means disparage same-sex relationships; but at the same time Shakespeare refuses to incorporate them within the conservative institution of marriage that mattered so much to him. A Midsummer Night’s Dream, furthermore, stands not only for established institutions, but also for the ‘dignity of communities and [for] the integrity and relative autonomy of...‘normative orders,’ which derive their legitimacy from the communities from which they emerge.’31 It would appear, then, that Justice Yachnin is more committed to a less purposive interpretative practice of Shakespeare than either Manderson or (in this case) Bolongaro JJ; and his response to those things which all their Honours acknowledged to be ‘before’ or ‘beyond’ the law, is precisely to leave them be and to respect their otherness, their extra-legality, their freedom from the bonds of social order. For Yachnin J it is legal arrogance to presume that its processes of recognition are the ones that really matter.

Manderson and Bolongaro JJ, on the other hand, see the resolution of Dream, for example, not as a return to the established order, but as its transformation and rejuvenation.

The governance of the fairy kingdom no less than the world of men is riven by discord in A Midsummer Night’s Dream, and our lovers are forced to flee the city. Now the literal and metaphorical forests of these comedies allow the exploration of desire and of personal identity. The return to the city in these plays therefore marks a restoration, but by no means a return to the status quo... The forest allows us to explore our natures and our desires, and we do not return from it untouched.

III. The limits of law: the dissents in The Bard de la Mer

The final case in the Court’s first trilogy, The Bard de la Mer (Du Parcq v Pedersen; Pedersen v Vidaloca) [2005] 3 C. of Sh. 1,32 whose judgments are published elsewhere in this volume, has sharpened these related jurisprudential disagreements to the point of crisis. In this case, the Court (Manderson, Yachnin, Goodrich, Jordan and Strier JJ) turns its attention from political responsibility and legal regulation to the law’s understanding of our personal obligations. The case (the statements of facts of which appear below) concerned a camping trip undertaken by three friends, in the course of which Gabriel Pedersen, a sailor, drunkenly struck Jean du Parcq, a non-swimmer, who fell into the water in the middle of an argument. The third friend, Chris Vidaloca, who saw the incident from the shore, did nothing to raise the alarm, and du Parcq, as a result of almost drowning, suffered irreparable brain injuries. The question in each case involves our duties to others. Is Pedersen responsible though he acted without intention? Is Vidaloca responsible though she did not act at all? How does Shakespeare and through him this Court conceive of our obligations to each other, whether as leaders, as friends, or as human beings?

On these points, the Court sought guidance from a range of texts, particularly King Lear, Hamlet, and Measure for Measure, which offer extended meditations on the limits of law, and on the human capacity for sacrifice and for selfishness. And students of the Court (and indeed of any court) will also be interested in the very different approaches their Honours took to these legal texts. Yachnin J’s reasoning is highly dependent on, and makes consider reference to, the arguments put during the moot process by learned counsel before the Court. The process of advocacy itself seemed, therefore, particularly pertinent to his conclusions. Manderson J focuses instead on the two central plays (in his Honour’s opinion) and spends a considerable time evaluating in some detail those texts’ trajectories and argument. Jordan J takes a very different textual approach. With her unsurpassed knowledge of the canon, she paints a complex picture of the principles of responsibility in Shakespeare, drawing on a broad sweep of references from the plays to do so. Goodrich J, for his part, places Shakespeare squarely within his historical and jurisprudential context and offers the court thereby a vision of what a court of literature, or love, might accomplish. If Goodrich J thereby implicitly suggests that the Court of Shakespeare ought to be a lot more creative in its conception of ‘law’ than it currently is, Strier J explicitly suggests that the Court could be a lot more rigorous. His Honour places the judgments of this Court itself on trial, vigorously castigating the Court’s practices and his colleagues’ reasoning in The Bard de la Mer itself. Like any good court then, the Court of Shakespeare learns from both auto-critique and from the diverse rhetorical strategies of its participants.

1. On the responsibility of Pedersen, the Court ruled unanimously, for compendious evidence was presented to the Court that Shakespeare’s primary understanding of personal responsibility is built around the notion of loyalties, stemming either from an office held or out of the specific social relationship of the parties. Either way, the captain of a ship is burdened with absolute obligations for the welfare of others. As Jordan J explains,

To ignore or fail to perform the responsible duties of a captain of a ship is effectively to lose that office. Such ignorance or failure may be apparently quite innocent and devoid of malice; it may consist simply in taking attention from the business of the ship or the. Conversely, it may consist in acts deliberately destructive of those for whom the captain has contracted a responsibility. To keep his (or her) office is above all not to fail in that responsibility. To misunderstand this distinction by, for example, flourishing the attributes of a captain while refusing or renouncing his responsibilities announces a catastrophe of the highest order.33

2. But on the second question, whether the law of Shakespeare would impose a duty to rescue upon Vidaloca, there is a sharp division in the Court. On the one hand, three of their Honours recognized such a duty either as likewise flowing from the established personal relations of the parties, in this case their prior friendship (Goodrich and Jordan JJ), or as part of a general human obligation to come in aid of others (Manderson J). Indeed, even this point is somewhat unclear, since Goodrich J’s argument is unusual. He does, it is true, refuse to amend the decision of the lower court (as noted by Striers J), which had held Chris Vidaloca’s non-intervention legally blameless. But it seems to me that at the same time Goodrich J clearly insists on the recognition of a distinct duty to rescue within the context of a Court of Shakespeare or, as he elsewhere puts it, a ‘court of love.’ While Goodrich J would treat the question of punishment or penance very differently from the common law jurisdictions that form the contrast to his reflections, it seems clear from his judgment that he believes the present Court ought to hold Vidaloca responsible for her inaction.

On the other hand, two judges reject such a burden as unreasonably broad and unresponsive to the specific difficulties, fears, and perils that acting to rescue the drowning du Parcq in this case would certainly have entailed (Yachnin and Strier JJ, dissenting in part). Manderson J, pursuing the Levinasian resonances he has articulated in previous judgments, reads King Lear in particular as a model for the redemptive power of sacrifice as a response to human need.

The world’s collapse in Lear is not due to its lawlessness (though that is one of its consequences) nor is it remediable by god or by our human natures. Instead, what Lear’s world lacks, at the beginning of the play, is a sense of any connection between us that would cause us to look after each other apart from our self-interest. The play attempts to discover that connection not by addition but by subtraction... The violent storm; the refusal of all shelter; nakedness; Gloucester’s blindness; and Lear’s madness. These elements combine to reduce the characters to that ‘poor, bare, fork’d animal’ which can no longer comprehend itself as having a role, a place, a plan, or hope. The characters are forced to give up. Gloucester says: ‘I have no way and therefore want no eyes. I stumbled when I saw.’ Lear too finally sees himself as he is, beneath the ‘lendings’ of State: ‘a poor, inform, weak, and despis’d old man’ smelling, as must we all, of mortality.’ Therein lies their redemption for, having taken us back to a time and a place before law, King Lear offers a way forward through the recognition by others of the fact of base human need.34

3. Against this, Yachnin and Strier JJ, the dissenting judges, insist upon Shakespeare’s recognition of human weakness or human fear. Drawing on Measure for Measure, Yachnin J insists that ‘however far it might be denounced by his sister or by himself, there remains something both fundamentally true and emotionally irresistible about Claudio’s fear of death.’

Claud. Death is a fearful thing.
Isab. And shamed life a hateful
Claud. Ay, but to die, and go we know not where;
To lie in cold obstruction and to rot;
This sensible warm motion to become
A kneaded clod; and the delighted spirit
To bathe in fiery floods, or to reside
In thrilling region of thick-ribbed ice;
To be imprison’d in the viewless winds,
And blown with restless violence round about
The pendant world; or to be worse than worst
Of those that lawless and incertain thoughts
Imagine howling: ‘tis too horrible!
The weariest and most loathed worldly life
That age, ache, penury and imprisonment
Can lay on nature is a paradise
To what we fear of death.35

‘The instinct for survival,’ Yachnin J continues, ‘might be craven, womanly, or common, but Shakespeare’s drama recognizes it as a fundamental part of human nature.’36 Sacrifice, for his Honour, may be desirable in Shakespeare’s jurisprudence but it cannot be mandated. Strier J’s argument is broadly similar, although for him Vidaloca’s fear of sharks (a stipulated fact of the case) rather than her instinct for survival is most significant. ‘In the face of [Shakespeare’s] vivid sense of the possibility and actuality of responses that are utterly automatic and beyond or beneath the control of the individual so afflicted, I judge that the ‘laws of Shakespeare’ lead us to take Chris's ‘phobia’ (as we would rightly call it) quite seriously indeed, and not hold her responsible for not being able to overcome it.’37

And it is precisely here that the methodological crisis comes to a head--what does it mean to treat the Court ‘as if’ it were law? The problem is in fact relevant in any legal system: what social facts that pertain to its own functioning does the court recognize, and which does it ignore? Measure for Measure is surely the foundational legal text here. It is a vicious satire on law itself, and on law’s inability--perhaps even the immorality of attempting--to prevent humans from being all too human. The Duke’s abstract disinterest, Angelo’s rule fetishism, and Isabella’s interpretative dogmatism, each capture a distinct critique of law and illustrate the failure of orthodox legal judgment to do justice to persons. Cautious of law’s overweening confidence in its own irenic possibilities, the dissenting judgments instead insist on the necessity that law sometimes curb its own regulatory enthusiasms. In contrast, the majority’s pious insistence on some sort of legal obligation to risk oneself for others, begins to sound as hollow as Isabella’s. Indeed in prior cases both Manderson and Yachnin JJ have insisted that law needs to show itself humble in the face of social reality; and have recognized the power and importance of those ethical forces which are foundational to society yet operate ‘outside’ or ‘before the law’. But legal discourse seems remorselessly avaricious, and appears structurally unable to resist translating everything and anything into legal terms. Perhaps ‘law and literature’ is more vulnerable than most movements to just such corruption by appropriation, as Elaine Scarry, for one, has argued.38 In the end a law that required us to risk ourselves in order to rescue others might not just be pointless;39 it might even destroy the very virtue of sacrifice, which lies because it operates as a freely chosen gift from one to another.40 The redemptive power of sacrifice exhibited by Isabella and Mariana at the end of Measure for Measure derive from just such a moral and social freedom. To convert sacrifice into law threatens to destroy both.

IV. The promise of law: the majority in The Bard de la Mer

Thus the conflict between those who think of law as a poisoned chalice which ought to hold sway within narrow limits, and those who think of it as an articulation of human ideals and possibilities, a conflict which first we saw in the contrast between Yachnin and Manderson JJ’s judgments in Pears, Britten, is now brought more starkly into focus. In response, each of the majority judgments is sensitive to the poverty of mere homilies and each attempts to resolve the crisis, which is a crisis of law’s legitimacy and relevance.

1. All three judges insist that the social voluntarism of the Court of Shakespeare--the peculiar inversion of cause and effect I noted in the first section of this essay--gives the Court a striking normative liberty. Thus the violence of law, which is precisely the minority judges’ main concern with such a radical expansion of the idea of personal responsibility, is finessed by turning the institutional weakness of the Court of Shakespeare into its singular virtue. The Court is not yet ‘made real’ in Scarry’s terms, say the majority--and thank goodness. Goodrich J, for example, offers the Court a very careful reflection on what a law that is a literature might really mean, going far beyond Shakespeare in the process and providing, in fact, a kind of historical background to the court’s more specific project. In connecting the Court to his own work on the nature and practice of ‘courts of love’ in the Middle Ages, Goodrich writes:

It remains to point out that our Court is of voluntary jurisdiction. It is, as I began by remarking, itself an exception, a court of love in an age of systems, it is a literary invention in a pragmatic era, it is powerless in a time when power often appears to be everything. Such are its virtues, its strengths.41

This powerlessness, or rather a power that proceeds purely by inciting a community into existence rather than by compelling it into submission, gives the court itself a degree of freedom that other courts, self-conscious of the violence implicated in their judgments, cannot match. So Goodrich J writes of the history and context of dies non, the days in which law cedes its seat to the ‘other’ of law.42

Shakespeare’s Court sits on the island of Montreal. That is a fascinating and coincidental feature of this case. The island, and we know this most directly from The Tempest, is the cartographic equivalent of the dies non, the site of the exception, the ‘green world’, a utopian place, as well as marking the miracle of our preservation, our survival of the generally inclement mode of our arrival. Put it more strongly, the scene of judgment, the island, itself institutes a literary court, a lex amatoria or law of love...43

So here we see most clearly the idea of law as embodying a language of utopian aspirations no less than a machine of pragmatic applications.

Legal authority is, like the literary imagination, diverse in its kinds and effects, an argument which Justice Jordan, drawing on her own unparalleled knowledge of the texts, situates within Shakespeare’s own understanding of the power of ‘extra-positive legal sources’.

Law derived from extra-positive sources is enforced not by a human police or government and is not the basis of legally codified decisions. Rather, it is enforced first by the vague and amorphous yet powerful courts of opinion that deliver sentences that ennoble or degrade the subject and thus establish reputation in society and among fellows. When judged as worthy of disapproval or disgrace, a person readily seeks support from his or her dearest and most reliable friends (Sonnet 29). Second, this law is enforced by the hope and fear of last judgment and the afterlife. Thus the integrity of a person is gauged by tests in this world but also by reference to judgment in the next (Measure for Measure, 2.4.184-85). Knowledge of the terrible outcomes of divine justice may sway choice and determine behavior before and after the fact (Hamlet, 3.3.73-75; 5.1.227-230).44

Manderson J comes to a similar conclusion, insisting (quoting Cover) on the ‘radical dichotomy between the social organization of law as power and the organization of law as meaning.’45 He appears to see in the Court of Shakespeare the possibility of a judgment ‘of meaning’ uncontaminated by the injustice of enforcement.

The Court of Shakespeare as it is now, however, is constitutional in the purest sense: its only power (and even that the slightest) is, by words, to constitute or encourage certain habits of mind. I do not think that that is so very different from any legal system. Law understood as the action of force alone sells its body too dear and its soul too cheap. In this court, we do not force anyone to be responsible; we only hope to make them conscious of the responsibility they already have, even on a blasted heath, even in a mythical land. ... So the constitutive power of imaginative language is not simply a force that imposes itself upon the freedom of the individual, since it forms that individual in the first place. [This Court’s] words do not force a person to be responsible; instead, in the best of circumstances, they make responsibility a part of that personhood. The constitutive power of language is law’s hopeful fiction--and fiction’s hopeful law.46

For all these judges, the problem of force and sacrifice, ethics and necessity, are resolved by understanding the Court of Shakespeare as a distinct legal phenomenon, radically different in affect and effect from the State-sanctioned violence we are used to defining, perhaps too narrowly, as ‘law’.

The three majority judges instead see in the Court the potential not only to create a new ‘code’ but to go beyond one, and find in Shakespeare’s work admiration for judgments and responsibilities (whether by judges, or courts, or individuals) that cannot be placed within the structure of a legal ‘system’. In attempting to give expression to that element of legal judgment that must transcend the rules, their Honours use different language: for Goodrich J, the Shakespearean plays reference a ‘court of love’; for Jordan J, they acknowledge a ‘divine law’; for Manderson J, they offer models of the singularity required of ‘responsible judgment’. But all three judgments insist that Shakespearean law has within it an instability, a particularity, and a narrativity that always moves beyond the established rules. One might, perhaps, say the same thing about the common law.47

2. Justices Goodrich and Jordan go even further, and criticize the very dimensions of the fiction that establishes the Court. What sort of literary imagination is it, they ask, that mimics so unquestioningly the process and decisions of a standard trial? For their Honours, the normative possibilities of this special jurisdiction have been hitherto constrained by a most un-literary and orthodox approach to legal argument, enforcement and restitution.48 Relying rather more on the Courts of Love49 than on Shakespeare’s own apparent understanding of law, Goodrich J insists that a court such as this ought properly speaking re-imagine not only the content of laws but their forms, purposes, and outcomes.50

The function of the court of love, and by extension of Shakespeare’s law, is to understand the operation of fate, the ineffable cause, the human consequences of adverse events. In such a context the arguments referred to are sadly unhelpful, indeed they must on reflection appear both pedantic and beside the point. All violence is in excess of language and beyond reason. Violence by definition violates, inverts, and unleashes chaos. We don’t need lawyers to tell us that. Indeed kill them all as the Bard once said but all he meant I think was treat them from the space of exception and according to the norms of love. And that will upend them soon enough.51

Thus the Orders of both judges reject compensation and punishment--the allocation of blame and the individualizing of fault that seems so natural in a contemporary legal context--and focus instead on redemption. This also, perhaps, leads us to reflect upon the different meaning given to ‘justice’ in literature and in law. Goodrich J, for example, requires Gabriel to ‘read poetry to her and even though she is unhearing and unseeing, he is to talk with her and so far as possible coax, cajole and cure her’;52 Jordan J, for her part, requires Chris to ‘attend, as best she can and in every way possible, to Jean and to any dependents she may have, and to offer them affection and material help whenever they may need it.’53 Even more than Manderson J, then, their Honours seek to respond to the moral perils occasioned by law’s force on the one hand, and law’s evasion of human nature on the other, by redefining what law and literature--understood as collaborators now rather than as opposed forces--can achieve and how.

In short, where the dissenting judges see law as in our society it is thought to be, and human nature as it is thought to be, and seek to reconcile them by vigorously separating them, the majority judges see law as it might be, and human nature as it might be, and seek to reconstitute them by ambitiously fusing them.

The judgments reproduced below offer the reader a more extensive entrée into the world of the court and the different legal choices now before it. Faced with such clear divisions concerning the ambits of the law-and-literature project, the limits of law, the relationship between Shakespeare’s values and our own, and the precise implications of the Court’s own founding fictions, the Court of Shakespeare is being forced to confront some of the most difficult issues in both jurisprudence and inter-disciplinarity. What follows is in some ways a primer on the different ways in which one might try and think through some of these questions, through an exploration of the legal and moral themes raised by the plays, and the fictitious case, at bar. The question of what it means for a court to treat its pronouncements ‘as if’ its maxims were law proves to establish a relationship between fiction and law both fruitful, and difficult, to untangle.

See Statement of Facts

See Judgments

* Professor Desmond Manderson, Canada Research Chair in Law and Discourse, Faculty of Law, McGill University. The McGill Shakespeare Moot project has been jointly developed and realized by Professor Manderson and Professor Paul Yachnin, Tomlinson Professor of Shakespeare Studies, Department of English, McGill University, and with the invaluable assistance and enthusiasm of all the students that have participated in its evolution over the past four years.
1. Desmond Manderson and Paul Yachnin, ‘Love on Trial: Same sex marriage in the Court of Shakespeare,’ McGill Law Journal 49 (2004), pp. 475-511; Desmond Manderson, ‘In the tout court of Shakespeare: Interdisciplinary pedagogy in law,’ Journal of Legal Education 54 (2004), pp. 283-302.
2. Nicholas Blomley, Law, Space, and the Geographies of Power (New York: Guildford, 1994); Shaun McVeigh, Jurisprudence of Jurisdiction (London: UCL Press, 2005); Desmond Manderson, Legal Spaces (Special Issue, volume 9 Law, Text, Culture, 2005).
3. William Driscoll, Joseph Zompetti, and Suzette Zompetti, eds., The International Criminal Court: Global Politics and the Quest for Justice (New York: IDEA, 2004).
4. William Tetley, International Maritime and Admiralty Law (2003).
5. Stanley Fish, The Authority of Interpretive Communities (Cambridge: Harvard University Press, 1980).
6. HLA Hart, The Concept of Law (Oxford: Clarendon Press, 1960).
7. Robert Cover, ‘Nomos and Narrative,’ Harvard Law Review 97 (1983), pp. 12-13.
8. Ronald Dworkin, Law’s Empire (Cambridge, Mass: Belknap Press, 1986), pp. 176-216.
9. Robert Cover, ‘Violence and the Word,’ Yale Law Journal 95 (1986), p. 1601; Austin Sarat and Thomas Kearns, eds., Law’s Violence (Ann Arbor: University of Michigan Press, 1993).
10. Cover, ‘Nomos and Narrative,’ p. 18.
11. Jean-Maurice Brisson and Nicholas Kasirer, eds., Code Civil du Québec – Edition critique (Montréal: Yvon Blais, 2004-5).
12. Hans Kelsen, ‘The Pure Theory of Law,’ Law Quarterly Review 50 & 51 (1934), pp. 477 and 517.
13. Jacques Derrida, ‘Déclarations d’indépendence’ in Otobiographies (Paris: Galilée, 1984), pp. 13-32.
14. Paul Morgan, A History of Rugby (London: Sutton, 2004).
15. Immanuel Kant, The Groundwork of the Metaphysics of Morals (1785), p. 422.
16. Jacques Derrida, ‘Before the Law,’ in Acts of Literature (New York: Routledge, 1992), p. 190.
17. Olivier Abel, Paul Ricoeur: la promesse et la règle (Paris: Michalon, 1996); see too Cover, ‘Nomos and Narrative’; Boaventura de Sousa Santos, Towards a New Common Sense (London: Routledge, 1995), chapter 1.
18. Desmond Manderson, ‘From Hunger to Love,’ Law and Literature 15 (2003), pp. 87-142 at 87-101; Roland Barthes, Mythologies (New York, Jonathan Cape, 2001).
19. Dir Kevin Costner, 1989.
20. Elaine Scarry, ‘The Made-Up and the Made-Real,’ in Field Work: Sites of Literary and Cultural Studies, Marjorie Garber, Paul Franklin and Rebecca Walkowitz, eds., (New York & London: Routledge, 1996), pp. 214-224.
21. As Stanley Fish points out, to engage with something ‘as if’ it were real (or true) is fundamentally no different in its effects than if it were real or true: see Doing What Comes Naturally (Oxford: Clarendon Press, 1989).
22. See George Clooney, dir. Good Night and Good Luck (2005); Richard Fried, Nightmare in Red: The McCarthy Era in Perspective (Oxford & New York: Oxford University Press, 1990).
23. This is the real error that Scarry makes, confining terms like ‘art’ and ‘law’ to a priori and impermeable categories: ‘The Made-Up and the Made-Real,’ pp. 220-24.
24. See RB Stevens, Law and Politics: the House of Lords as a judicial body, 1800-1976 (Chapel Hill: University of North Carolina Press, 1978);
25. Published in Manderson, ‘In the Tout Court of Shakespeare,’ pp. 289-301; the complete judgments are archived on the Court's web site.
26. In re Attorney General for Canada; ex parte Heinrich, [2003] 1 C. of Sh. 1, pp. 298-99.
27. Published in Manderson and Yachnin, ‘Love on Trial,’ pp. 482-511; the complete judgments are archived on the Court's web site.
28. The Winter’s Tale, Act III, scene 2, 20-26. All reference to the works of William Shakespeare are from The Riverside Shakespeare (Boston: Houghton Mifflin, 1997).
29. Attorney General of Canada v Pete Pears, Ben Britten & Ors., [2004] 2 C. of Sh. 1, p. 502.
30. But see Macdonald J on this point: Id., p. 501.
31. Id., p. 511.
32. See below; the complete judgments are archived on the Court's web site.
33. The Bard de la Mer (Du Parcq v Pedersen; Pedersen v Vidaloca), [2005] 3 C. of Sh. 1, below, p. [?] [footnotes omitted]
34. Id., p. [?] [footnotes omitted]
35. Measure for Measure, Act III, scene 1, 115-31.
36. The Bard de la Mer (Du Parcq v Pedersen; Pedersen v Vidaloca), [2005] 3 C. of Sh. 1, below, p. [?]
37. Id., p. [?]
38. Scarry, ‘The Made-Up and the Made-Real,’ pp. 214-20.
39. Lon Fuller, ‘The Case of the Speluncean Explorers,’ Harvard Law Review 62 (1949), pp. 616-645; Peter Suber, The Case of the Speluncean Explorers: Nine New Opinions (Routledge: New York, 1998).
40. Jacques Derrida, The Gift of Death, trans. David Wills (Chicago: University of Chicago Press, 1995).
41. The Bard de la Mer (Du Parcq v Pedersen; Pedersen v Vidaloca), [2005] 3 C. of Sh. 1, below, p. [?]
42. Peter Goodrich, Law in the Courts of Love: literary and other minor jurisprudences (London & New York: Routledge, 1996).
43. The Bard de la Mer (Du Parcq v Pedersen; Pedersen v Vidaloca), [2005] 3 C. of Sh. 1, below, p. [?]
44. Id., p. [?]
45. Cover, ‘Nomos and Narrative,’ p. 18.
46. The Bard de la Mer (Du Parcq v Pedersen; Pedersen v Vidaloca), [2005] 3 C. of Sh. 1, below, p. [?]
47. Desmond Manderson, Proximity, Levinas, and the soul of law (Montreal: McGill-Queen’s University Press, 2006).
48. Martha Nussbaum, Poetic Justice (Boston: Beacon Press, 1996).
49. Goodrich, Law and the Courts of Love.
50. Again, see the formal innovation in the previous judgment of Macdonald J: Attorney General of Canada v Pete Pears, Ben Britten & Ors., [2004] 2 C. of Sh. 1, p. 501.
51. The Bard de la Mer (Du Parcq v Pedersen; Pedersen v Vidaloca), [2005] 3 C. of Sh. 1, below, p. [?]
52. Id., p. [?]
53. Id., p. [?]