Conflicts of Law and Equity in The Merchant of Venice

William Carlos Williams once said that "Shakespeare is the greatest university of them all" (qtd.
in Kornstein xiii). This is especially true with respect to the law: a dedicated scholar can discover
a wealth of information on legal issues in Shakespeare's works. Measure for Measure and The
Merchant of Venice are, of course, explicitly "legal" in content, but more than twenty of the
plays have some form of trial scene (Kornstein xii). Virtually all of the plays are tangentially
concerned with some aspect of the law; at the very least, Shakespeare uses complex legal jargon
to elicit a laugh.

The link between Shakespeare and the law is not new; even a casual perusal of the literature will
show that scholars have long realized that the legal discourse can lead to a better understanding
of Shakespeare's works. I submit, however, that the converse is also true: that the study of
Shakespeare can lead to a deeper understanding of the fundamental nature of law. A play
like The Merchant of Venice has a great deal to offer in the course of such a reading. The action
of the play is concerned with contract law, but issues of standing, moiety, precedent, and
conveyance are also raised. At the most fundamental level, though, the trial scene in Act IV
illustrates the conflict between equity and the strict construction of the law.

Equity, in the legal sense, is "justice according to principles of fairness and not strictly according
to formulated law". This definition, while easily understandable, presents us with a problematic –
even dangerous - structure of opposition. Law and fairness are set at extreme ends of some
continuum of justice, and are exclusive. The definition implies that one can have justice
according to "fairness," or justice according to "formulated law." Yet if law is not inherently fair,
if there is need for a concept of equity, how can the law be said to be fulfilling its purpose? And
if "fairness" is not to be found within the confines of "formulated law," from whence does it
come? This is not a new argument, of course; the conflict between law and equity was
recognized even in medieval England.

The sense that principles of fairness have been violated, arouse many to question the theories
and practices upon which our system of law and justice have been built. Some would claim, for
example, that rape is a crime no less egregious than that of murder, and thus call for the
execution of convicted rapists. Yet no state allows such execution solely for conviction of
rape. It has become a fundamental tenet of American law that the state may not take the life of a
felon unless the crime involved the taking of a life; rape alone, while devastating the life of the
victim, does not result in death without some intervening act. The search for equity – for fairness
– within codified law has led to some bizarre and arcane practices in Western courts; when drunk
drivers spend more time in prison than some murderers, this fact becomes painfully apparent.

Equity, in fact, has become so intertwined with law in the justice system that it is difficult to see
the lines of demarcation. We must remember, however, that such was not always the case. When
Shakespeare wrote The Merchant of Venice, there were actually separate courts in England for
the administration of law and equity. One appealed to the Court of Common Law to seek redress
under codified law, or to the Court of Equity to avail oneself of the judgment of men. The two
spheres were kept strictly separate, and it was not until the reign of James I that courts of law
began to consider principles of equity in the resolution of disputes.

In such a system, the terms of forfeiture of a bond, like the one sealed between Shylock and
Antonio, fell under the purview of the Courts of Common Law. These courts, in the sixteenth
century, relied upon strict construction; that is to say, a literal reading of applicable law and the
instruments made to employ such law. A contract, like the one made between Shylock and
Antonio, was "fully enforceable at law". This means that any penalty stipulated in the contract
would be automatically awarded if the contract were not strictly upheld. A delay in repayment of
even a single hour would result in any forfeiture that the debtor had agreed to pay. It is this
notion of "fully enforceable" contract that leads Portia to proclaim initially that "lawfully by this
[contract] the Jew may claim/A pound of flesh".

The dichotomy between law and equity, between strict construction and principles of fairness, is
evident in Shylock's initial proclamations. The law is on his side, and he knows it. When he
states, "I stand here for law", and "I crave the law", these terms are meant in binary opposition to
equity. Shylock seeks a justice based upon vengeance, not "fairness." He comes armed with a
contract strictly enforceable and clings tenaciously to the most literal interpretation possible. It is
evident that Shylock intends to wield the law as a weapon against Antonio; when Portia pleads
with him to have a doctor stand by to save Antonio's life, Shylock obstinately refuses on the
grounds that "'Tis not in the bond".

In contrast to Shylock's reliance upon strict construction, Portia urges the consideration of
principles of equity. She delivers a passionate speech on the need for considerations of humanity
in the adminisration of the law:

Though justice be thy plea, consider this,

That in the course of justice none of us

Should see salvation. We do pray for mercy,

And that same prayer doth teach us all to render

The deeds of mercy

Mercy, or the imposition of basic principles of fairness upon the strict letter of the law, lies at the
heart of equity; a modern philosopher might refer to such considerations as "situational
ethics." Portia's famous speech on the qualities of mercy attributes this capacity in mankind to a
higher, divinely inspired form of law:
The quality of mercy is not strained.

It droppeth as the gentle rain from heaven

Upon the place beneath. It is twice blest;

It blesseth him that gives and him that takes.

. . . It is an attribute to God himself;

And earthly power doth then show likest God's

When mercy seasons justice

Portia thus articulates the fundamental conflict between law and equity; while justice can be
found in each separately, there is a better form of justice to be obtained when mercy and fairness
become considerations in the administration of the law.

Shylock soon learns, of course, that strict construction is a double-edged sword. When her appeal
to equity fails in the force of Shylock's lust for vengeance, Portia must retreat to the battlefield of
law, and here the moneylender is undone. Shylock's defeat on a legal technicality makes for good
drama, but the legalities are based on a false premise, and even here the effects of equity in
consideration of law can be seen. Shylock is awarded his pound of flesh, but is enjoined from
taking any accompanying blood; since he cannot take the one without spilling the other, he is
forced to abjure his forfeiture. It is a tenet of the common law, however, that any granted right
must also entail any incidental powers necessary to its exercise. One jurist has likened Portia's
winning argument to a judge granting an easement but denying the right to leave footprints on
the ground, since the subsidiary right is not expressly granted in the contract. It is inconceivable
that any codification of law could possibly cover all contingencies; that the law is, or even can
be, flexible at all is a function of the principle of equity.

Shylock's punishment, and the evolving response of audiences over the course of four centuries,
may also point to a crucial aspect of equity: that fundamental ideals of fairness can change over
time to meet societal needs. Shylock comes to court to seek redress for default of a loan; he
leaves the trial bereft of all of his property, stripped of his lifelong faith, and very nearly
sentenced to death. Contemporary audiences likely would have applauded such a resolution;
even a century ago, the world that saw the trial of Alfred Dreyfus would have found Shylock's
treatment at the hands of the law completely fitting.

The Merchant of Venice is, at its heart, a skillful examination of the tension between law and
equity. In the 1980 BBC production, Shylock enters the courtroom carrying a balance, a bit of
stage direction that does not appear in the play script . Of course, the obvious inference is that he
intends to use the scales to weigh out his forfeiture, a pound of Antonio's flesh. Yet the scales
have long stood as a symbol of justice; Homer's Iliad may be the first use of this symbol , or it
may be even older. If we view the two scales as representing law on one side, and fairness on the
other, the point at which they balance is equity. When strict adherence to the law outweighs basic
principles of fairness, there can be no justice. Bassanio may have the most poignant statement on
the nature of equity when he urges the court to temper justice with fairness; should the law
contain no room for mercy, he claims:

It must appear

That malice bears down truth. And I beseech you,

Wrest once the law to your authority.

To do a great right, do a little wrong .