Essay: Shakespeare s Contribution to the Teaching of Comparative Law-Some Reflections on The Merchant of Venice

• Author: Edith Z. Friedler
• Position: Professor of Law, Loyola Law School, Los Angeles, California
• Pages: 1087-1102

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Professor of Law, Loyola Law School, Los Angeles, California; J.D. 1964, University of Chile School of Law; J.D. 1980, Loyola Law School, Los Angeles, California. I am very grateful to my friend and colleague David Leonard for the generosity of his time and his invaluable editorial help.

I Introduction

Comparative law is going through a mid-life crisis. One common manifestation of this crisis is a lack of self-confidence accompanied by a critical evaluation of the past and angst about the future. Evidence of this state of affairs can be found in the symposium issue of many law reviews devoted to reconstructing the subject and ascertaining its role in the new millennium.¹ There is a rejection of the traditional approach that looks for similarities and differences between the common law and the civil law. The contours of the new comparative law remain unsettled. There is a clear shift from private law to public law. From there on, however, the picture blurs. For some, comparative law plays a key role in the modern "global village." For others, it can only survive as a "law and discipline" or specifically as law and economics. There are also those who would like to see a closer connection between comparative law and legal history and those who think of comparative law more as comparative jurisprudence. I believe these recent efforts to give comparative law a facelift are directed more towards scholars than classroom teachers. They bring to mind Roscoe Pound's insistence that this is a discipline for academics and legislators, not for a law school class.² It has been pointed out that although many American law schools offer some type of comparative law courses in their curriculum, the truth is that very few students enroll.

The scope of this essay is modest: it addresses only the teaching of comparative law in law schools that generally offer a single survey class on the subject, providing the sole exposure to other legal systems for the future graduate. As an introductory course, the comparison between the civil law and the common law must touch on core concepts and specific rules of a foreign legal system while explaining why and how they function. This requires knowledge of the players involved and the societies in which they live.

Shakespeare's works and their relationship to law have been the subject of countless writings and commentaries raising issues as diverse as the dichotomy between law and equity to feminist jurisprudence, just to name two.³ The Merchant Page 1088 of Venice, alone, has had more than its fair share of critical commentary, and it is precisely the controversy that surrounds the play that makes it so attractive in the classroom. To my knowledge, however, it has never been used specifically to teach comparative law. Yet, it provides a survey class with a unique way of achieving its main purpose, that of jolting students out of their parochialism. In other words, it allows for an interesting cultural immersion⁴ into the society of Venice in the sixteenth century to learn how the law functioned and to understand the relationship between law and life. It is the outrageous character of the penalty clause, the degree of Shylock's passion and revenge, the depth of Antonio's love for Bassanio that makes him welcome death to satisfy the bond he undertook for his friend, and the multifaceted personality of Portia, not the accuracy of the legal rules themselves that create the atmosphere conducive to comparative work.⁵ This is also a great opportunity for the teacher as a comparativist to deal constructively with the perceived shortcomings of Shakespeare's legal knowledge and to build the bridge to today's legal culture. It is with these observations in mind that I present this paper as one more reflection on The Merchant of Venice.

This paper will assume familiarity with the three plots in Shakespeare's play: (1) The loan of three thousand ducats to Bassanio to woo Portia, with Antonio as his surety; Antonio's forfeiture of his bond and Shylock's legal action to collect "the pound of flesh"; (2) the tale of the three caskets and the test submitted to Portia's suitors; and (3) the elopement of Jessica, Shylock's daughter with Lorenzo, a gentile and close friend of Bassanio and Antonio. The discussion will focus on the contract containing the penalty clause and the breach that leads to litigation.

To begin with, Shakespeare himself is engaging in some form of comparative law by his choice of Venice as the setting. The unstated assumption is that for the plot to be even remotely plausible, the action has to take place under a legal system that operated differently from the one in effect in England. Shakespeare makes good use of some of these differences, the first one being the role of the Notary.

II Importance Of The Notary In The Civil Law Legal Systems

In the best civil law tradition, the first thing Shylock does after he and Antonio agree on a no-interest loan to Bassanio of three thousand ducats is tell Antonio:

Go with me to a notary, seal me there

Your single bond; and, in a merry sport,

If you repay me not on such a day,

In such a place, such sum or sums as are

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Express'd in the condition, let the forfeit

Be nominated for an equal pound

Of your fair flesh, to be cut off and taken

In what part of your body pleaseth me.⁶

This passage demonstrates the key role that notaries play in the civil law world. The Notary is an experienced lawyer in good standing who receives from the state the exclusive authority to perform certain legal functions and to impart the required formality to certain legal transactions. The Notary owes a duty to the transaction, rather than to the party. He provides a service to "interested parties" and not to "clients." He represents the publica fides. In Italy, notaries were regulated by legislation in the various city-states between the thirteenth and sixteenth centuries. As a general rule, the notarial document is authentic and executory and constitutes proof of the facts asserted therein. The existence of the notarized document creates presumptions of truthfulness and legality.

The fact that Shylock's contract with Antonio is notarized raises the most important legal issue in this play: Would a Notary have clothed this promise with a seal of approval if it were illegal? Surely not. The Notary is the witness par excellence who must give form and authorization to the transaction that has been agreed to, and who must advise the parties of the legal aspects of the instrument. American notaries have no such powers. In the United States, a notary requires no legal training. Her only function is to ascertain the correct identities of the parties.⁷Although all legal systems require compliance with certain formalities in order to render promises enforceable, the difference between civil law systems and common law systems in this respect is striking. Although both systems limit proof of the terms of a written contract (in civil law, the notary's approval sets the terms; in the common law, the parol evidence rule limits the parties' ability to alter the terms of a writing), civil systems place far more importance on writings as evidence. This is in stark contrast to the testimony of witnesses, so ubiquitous in the common law. Students are often surprised to learn that in civilian systems, a written document is required even to prove obligations of relatively low value.⁸ This contrast can be the starting point of a lively classroom debate on the role of evidence in a legal system that follows an inquisitorial model rather than an adversarial model. This discussion also allows students to understand why many rules of evidence, such as the hearsay rules, are necessary to avoid prejudice by influencing the jury. This in turn can lead to a discussion of the reasons for the absence of juries in the civil law Page 1090 world and the importance of procedure as a factor that explains many differences between the civil law and the common law.

III Validity Of The Contract

The civil codes of most civil law countries state that four conditions are essential to the validity of every contract: capacity of the parties, consent, object and cause.⁹ Consent and cause are important in evaluating the contract in The Merchant of Venice.¹⁰ The Notary's imprimatur gives Shylock's loan to Antonio presumptive validity, but there is more. The dialogue between Shylock and Antonio immediately preceding the agreement shows that there is a meeting of the minds with no mistake, duress, or undue influence. Therefore, from the very beginning, it appears as a valid and enforceable promise. This same dialogue between the two merchants clearly indicates that this is a commercial transaction, entered into freely by two adults who acknowledge their differences and enmity. When Antonio asks Shylock for a loan to help his friend Bassiano, a very surprised Shylock responds:

What should I say to you? Should I not say

'Hath a dog money? Is it possible

A cur can lend three thousand ducats?' or

Shall I bend low, and in a bondman's key

With bated breath and whispering humbleness,

Say this,-

"Fair sir, you spit on me Wednesday last,

You spurn'd me such a day, another time

You call'd me dog; and for these courtesies

I'll lend you thus much moneys'?"

To which Antonio, without the slightest hesitation, replies:

I am as like to call thee so again,

To spit on thee again, to spurn thee too.

If thou wilt lend this money, lend it not

As to thy...