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Professor Richard Weisberg wrote of The Merchant of Venice, “[p]erhaps no text except the Bible and the United States Constitution has so implicated audiences in fierce straggles for dominance and control.” The remark's seeming hyperbole diminishes when one considers the controversy that surrounds nearly every production, with one New York school district going so far as to remove the text from its curriculum as a consequence of debate over the showing of the BBC's 1981 production of the play to students. It is no different when one turns to the legal scholarship though, arguably, it is the legal Academy's general silence regarding the play that most soundly articulates its rejection of it. It is a silence that cannot be ignored given Merchant's centrality to matters of law. And indeed, when legal theorists do turn their attention to the play, once again it spurs contentious debate.
Though most literary critics agree that the play is thematically rich, presenting a “parade of binaries,” for legal scholars the primary tension is between law and mercy and how, or whether, justice unifies that tension within itself. This question has generated widespread and vehement debate among legal scholars. It is the same with the literary criticism.
1. Throughout this article I have relied upon Shakespeare, William. The Merchant of Venice (Halio, Jay L. ed., Oxford U. Press 1998) [hereinafter Merchant]Google Scholar.
2. Weisberg, Richard. Symposium: The Merchant of Venice. 5 Cardozo Stud. L. & Lit. i. i (1993)Google Scholar.
3. See Cambridge Companion to Shakespeare on Film 257 (2000)Google Scholar.
4. Id. On March 31. 1974. the New York Times editorial board saw a need for a column entitled “Why Shylock Should Not Be Censored.” The perceived need came about in response to the presentation on American television of the National Theater Company s presentation of Merchant and the public outcry that occurred before the production aired. See Danson, Lawrence, The Harmonies of The Merchant of Venice 6 (Yale U. Press 1978)Google Scholar (speaking to general public outcry and the New York Times' response).
5. Yoshino, Kenji, The Lawyer of Belmont, 9 Yale J.L. & Humanities 183, 185 (1997)Google Scholar. Though all of the polarities scholars see are not obvious from the play. One version of the list of opposites and various interpretations can be found in Barton, Anne, Introduction. The Merchant of Venice, in The Riverside Shakespeare 250–253 (Houghton Mifflin Co. 1974)Google Scholar.
6. See e.g. Pollock, Fredrick. A Note on Shylock v. Antonio, 30 L.Q. Rev. 175 (1914)Google Scholar: Alscher, Peter J., I Would be Friends With You … Staging Directions for a Balanced Resolution to The Merchant of Venice Trial Scene. 5 Cardozo Stud. in L & Literature 1 (1993)CrossRefGoogle Scholar; Kornstein, Daniel J., Fie Upon Your Law!, 5 Cardozo Stud, in L. & Literature 35 (1993)Google Scholar: and Posner, Richard, Law And Literature: A Misunderstood Relation 95–99 (Harv. U. Press 1988)Google Scholar (Judge Posner solves the tension between mercy and law by recasting grace as equity and thus as a more refined application of the law.). On the notion of the feminine voice as contrasted with the masculine in the life of the law. see Menkel-Medow, Carrie, Portia in a Different Voice: Speculation on Women's Lawyering Process, 1 Berkeley Women's L.J. 39 (1985)Google Scholar; Cohen, Jane Maslow, Feminism and Adaptive Heroism: The Paradigm of Portia as a Means of Introduction, 25 Tulsa L.J. 657 (1990)Google Scholar; and Weisberg, Richard, Poethics: and Other Strategies of Law and Literature 43 (Colum. U. Press 1992)Google Scholar. The debate continues in recent scholarship. See e.g. Willson, Michael Jay, A View of Justice in Shakespeare's The Merchant of Venice and Measure for Measure, 70 Notre Dame L. Rev. 695, 721 (1995)Google Scholar. Lauding the 1994 Royal Shakespeare Company stage production of Merchant. Willson writes:
Mr. Calder's and Ms. Downie's respective portrayals of Shylock and Portia, masterfully contrasted the Old Testament and New Testament notions of justice. Calder played Shylock as an embodiment of the Old Testament “justice” which was an “eye for an eye.” In contrast, Downie's Portia, like Christ in the New Testament, eloquently entreated Shylock to show mercy.
Scharffs, Brett, The Role of Humility in Exercising Practical Wisdom 32 U. Cal. Davis L. Rev. 127, 146 n. 59 (1998)Google Scholar; and Benston, Alice N., Portia, the Law, and the Tripartite Structure of The Merchant of Venice, in The Merchant of Venice: Critical Essays 163, 173–174 (Wheeler, Thomas ed., Garland Publg. 1991)Google Scholar.
7. Lawrence Danson notes that very little scholarly work has been done on Merchant and “the play no longer seems obviously suitable for childish renditions.” Entire books have been devoted to Shylock, but as Danson remarks “studies of Shylock are not the same thing as studies of Shakespeare's play.” Danson, supra n. 4, at 2, 3-4. On Shylock. see Grebanier, Bernard, The Truth About Shylock (Random House 1962)Google Scholar; Landa, Myer J., The Jew in Drama (KTAV Publg. H., Inc. 1969)Google Scholar; and Sinsheimer, Hermann, Shvlock: The Historv of a Character (Benjamin Blom. Inc. 1968)Google Scholar.
8. See Danson, supra n. 4; Bronstein, Herbert, Shakespeare, The Jews and The Merchant of Venice, 20 Shakespeare Q. 10 (1969)CrossRefGoogle Scholar; and Hecht, Anthony, The Merchant of Venice: A Venture in Hertneneulics. in Obbligali: Essays in Criticism 140–229 (1986)Google Scholar.
9. See Goddard, Harold C., The Merchant of Venicein Shylock 137 (Bloom, Harold ed., Chelsea H. Publishers 1991)Google Scholar; and Short, Hugh, Shylock is Content: A Study in Salvation, in The Merchant of Venice New Critical Essays 200 (Mahon, John W. & Mahon, Ellen Macleod eds., Routledge 2002)Google Scholar.
10. See Coghill, Neville, The Basis of Shakespearian Cometh, in 3 Essays and Studies 1, 20–21 (John Murray 1950)Google Scholar.
11. Danson, supra n. 4, at 13; and Kermode, Frank, The Mature Comedies, in Early Shakespeare: Stratford Upon Avon Studies 224 (Brown, John Russell & Harris, Bernard eds., St. Martin's Press 1961)Google Scholar.
12. I am indebted to Lawrence Danson's work in thinking about Merchant as well as Jay Halio's. Though I agree with both scholars that in the play mercy fulfills and enables law's possibility. I add to that argument here that willing suffering is a central aspect of that mercy both in the play and within the historical context of Elizabethan England where it is located.
13. The insight that any account of what comprises wise, sensitive, and noble judgment must in some way allow for, and recognize, the role of the sensual has itself been a contributory justification for allowing discussion of literary works within law reviews. See Nussbaum, Martha C., Poetic Justice: The Literary Imagination and Public Life xiii–xviii (Beacon Press 1996)Google Scholar (describing the value of literature in legal education). Closely related is the perfusion of current work that struggles with the place, if any, of the emotions in legal reasoning or the arena of adjudication more generally. See generally The Passions of Law (Bandes, Susan A. ed., N.Y.U. Press 1999)Google Scholar.
14. Posner, supra n. 6. at 95-96.
15. There are eighteen films of the play since 1910, five have been done for television. In English there have been two motion films, one a ten minute talkie of Act Four done in 1927, and a film by Orson Wells completed in the 1940s which was not released due to the theft of two of the reels. See supra n. 3. at 257. In 1970, Miller directed a production of Merchant for the National Theater Company that aired on American public television in 1974. In 1980 he directed the BBC version. In his first film. Miller had an explicit social vision of the play seeking to show the roots of modern anti-Semitism in economics and politics. In attempting to make Shylock more sympathetic. Miller struck Shylock's muttering “I hate him for he is a Christian,” as Antonio approaches for a loan: and the comic figure Lancelot's bawdy crude comedy was also deleted. Sir Laurence Oliver played Shylock and Joan Plowright, Portia. Reviewers congratulated Olivier on playing a Shylock that forced the audience to “question and reject the stero-types.” In the 1981 BBC production, Miller reverted to a more classic approach to the play, for the director had come to see it as “totally symmetrical in its prejudices.” Perret, Marion D., Shakespeare and Anti-Semitism: Two Television Versions of The Merchant of Venice, 16 Mosaic 145–163 (1983)Google Scholar. Most recently American television presented a production in 2001 where the location of the story was moved to Victorian England.
16. Shakespeare, supra n. 1, at act 1, scene 3, l. 170.
17. Id. at act 2, scene 7, l. 23.
18. Id. at act 2. scene 9, l. 35.
19. Id. at act 3, scene 2, l. 114.
20. Id. at act 3. scene 2, ll. 172-173.
21. See e.g. Hart, H. L. A., The Concept of Law 85 (Oxford U. Press 1981)Google Scholar. Hart is one of very few 10 note the relation between obligation, bond, and willing bondage.
22. See Scharffs, supra, n. 6. at 127, 134 (seeing humility as the key that “synthesizes and mediates the demands of justice and mercy”). The point seems right though mercy is not that which constrains, a point later made forcefully by Portia.
23. Shakespeare, supra n. 1, at act 1, scene 2, l. 22.
24. Id. at act 1, scene 2, l. 15.
25. Id. at act 1, scene 2, l. 103.
26. Id. at act 3, scene 2, ll. 160-164.
27. See e.g. Yoshino. supra n. 5. at 205 (equating ardor with a kind of clinical “disintegration” of “consciousness” that is an inappropriate loss of identity brought on by the torture of participating in the casket trial).
28. Shakespeare, supra n. 1. at act 3, scene 2, l. 175.
29. Id. at act 2, scene 7, l. 9.
30. Id. at act 3, scene 2, l. 57.
31. Burckhardt, Sigurd, The Merchant of Venice: The Gentle Bond, 29 English Literary Hist. 239, 247 (1962)Google Scholar.
32. Id.
33. Id. at 248.
34. Danson, supra n. 4, at 50.
35. Shakespeare, supra n. 1, at act 1, scene 1, ll. 135-138.
36. Id. at act 5, scene 1, l. 252.
37. Id. at act 2, scene 2, ll. 183-185.
38. Id. at act 5, scene 1, l. 293.
39. Id. at act 2, scene 7, l. 16.
40. Sharp, Ronald A., Gift Exchange and the Economies of Spirit in The Merchant of Venice, 83 Modern Philology 250, 263 (02 1986)CrossRefGoogle Scholar (quoting Arthur Kirsch, untitled paper on Merchant on file with the author).
41. Job 1:13-22 (All Biblical cites are from New Am. Bible.).
42. Gen 22:1-13.
43. Mark 10:21-31.
44. Within theological discourse, sharp debate has been sparked by both feminists and womanist theologians about the place, or lack of place, of sacrifice and submission in the Atonement. A common thread among the various works is the judgment the classical atonement doctrine presents images of divine child abuse or divine surrogacy, and as models of Jesus' work that encourage women to submit passively to abuse. See Brown, Joanne Carlson & Parker, Rebecca, For God so Loved the World?, in Christianity, Patriarchy, and Abuse: A Feminist Critique 1, 11 (Brown, Joanne Carlson & Bohn, Carol R. eds., The Pilgrim Press 1989)Google Scholar.
45. See e.g. Weaver, J. Denny, The Nonviolent Atonement 5 (Eerdmans, W.B. 2001)Google Scholar. Weaver's principal theological opponent is the tradition of satisfaction according to Anselm, because it implicates God in acts of violence. He works from the assumption that Christology and atonement must reject violence, substitutionary or not. He includes in his definition of violence racism, sexism, poverty, psychological harm, and even damage to self-esteem. Id. at 8, 225. One obvious problem with Weaver's thesis is that it is culture bound and yet claims to discern His message universally outside of culture. What constitutes sexism for one community, for example, constitutes the highest form of honoring and lauding of another. In the context of this essay, in rejecting violence per se, Weaver denies the nobility of the human condition itself. Meyer writes, relying on the teachings of Nietzsche, what could be taken as a response to Weaver.
Our guilt extends beyond the bounds of harmful deeds. We are awash in wicked thoughts, intentional failures, brutal instincts, exotic desires. Repressing these aspects of ourselves comes at great psychological cost. Our will to live, our will to power, has to be squelched in order for us to accept the rule of the “herd.” …. Civilization has pruned and tortured us into emotional bonzai. At a great cost to the human spirit. But for Nietzsche (and Freud), as always, this repression is a double-edged sword. Our “priests” have tamed us, but also made us capable of making (and keeping) promises to ourselves, the ultimate exercise of will, and have created a human spirit more powerful and more terrible for its taming. Only this modern human spirit, Nietzsche would say, is capable of great art. Like a bonzai, we have become strangely beautiful. … We translate repression into art—we sublimate.
Meyer, Linda Ross, Herbert Morris and Punishment, 22 Quinnipiac L. Rev. 109, 111 (2003)Google Scholar. It is by internal violence and hammering upon himself that Antonio is man who pledges and keeps vows, a central theme of the play. So too, as Raymond Waddington observes, the image of the choice of Hercules in the casket trial reveals to us that it is by “conquer[ing] himself” and “properly order[ing] his own mind, passions, and appetities” that Bassanio can then “conquer” others. Waddington, Raymond B., Blind Gods: Fortune, Justice, and Cupid in The Merchant of Venice, 44 English Literary Hist. 469, 470 (1977)Google Scholar.
46. See Schwager, Raymund, Jesus in the Drama of Salvation 173 (Williams, James G. & Hadon, Paul trans., Crossroad Publg. Co. 1999)Google Scholar. Schwager writes:
[i]f one sees in him someone who indirectly killed himself, then the following of his way must foster conscious or unconscious self-destructive tendencies … the fundamental problem of self-destruction within Christian spirituality shows that we have to examine very precisely the behavior of Jesus in his bitter fate, so as not to admit amoral elements in the name of piety.
Id.
47. See e.g., Alison, James, Faith Beyond Resentment: Fragments Catholic and Gay 158 (Crossroad Publg. Co. 2001)Google Scholar. Alison, drawing on the work of Rene Girard, sees Jesus' innocence and the fact that he ought not to have been executed as signs that God the Father did not require the sacrifice of the Cross, or any sacrifice. Rather, the sacrificing of scapegoats is a human invention that serves to maintain social cohesion, thereby poisoning the societies founded on these murders. Id. Alison sees the Gospels as teaching how Jesus exploded the scapegoat myth through His resurrection which stands as the “definitive separation of the perception of God from any sort of social life that is tinged by the mechanisms of death.” Id. at 153-156.
48. See Schwager, supra n. 46, at 174-180.
49. See Weaver, supra n. 45, at 22-24.
50. Schwager, supra n. 46, at 173.
51. Knight, G. Wilson, Shakesperian Production 127 (Faber & Faber Ltd. 1964)Google Scholar.
52. Id. at 128. Similarly, Joan Ozark Holmer writes, “the meaning of the test is to define right love …. In both the source and the play the Tightness of human love is modelled on the ultimately right example, divine love. In the allegorisation of the story the wisely providential father is God.” See Holmer, Joan Ozark, The Merchant of Venice: Choice, Hazard and Consequence 96 (St. Martin's Press 1995)CrossRefGoogle Scholar.
53. Shakespeare, supra n. 1, at act 1, scene 3, l. 40. Frequently this scene is cut by directors who wish to portray a more sympathetic Shylock though in doing so the richness of his character is thinned.
54. Id. at act 2, scene 5, l. 14-15.
55. Id. at act 1, scene 3, ll. 108-109.
56. Id. at act 1, scene 3, 11. 126-127.
57. We are familiar with this idea in the criminal law which is discussed and written about under the rubric of retribution or just desserts. On the resurgence of just desserts as a ground for punishment, see Chevigny, Paul G., From Betrayal to Violence: Dante's Inferno and the Social Construction of Crime, 5 Cardozo Stud. in L. & Literature 787, 789 (Spring 1993)Google Scholar; Dolinko, David, Three Mistakes of Retributivism, 39 Ucla L. Rev. 1623, 1623 (1992)Google Scholar; Huigens, Kyron, The Dead End of Deterrence, and Beyond, 41 Wm. & Mary L. Rev. 943, 980 n. 152 (2000)Google Scholar; and Jeffrey G. Murphy, Moral Epistemology, the Retributive Emotions, and the ‘Clumsy Moral Philosophy’ of Jesus Christ, in The Passions of Law, supra n. 13. at 149 (noting that we should not be too quick to exclude retribution from our legitimate reasons for imposing punishment). In the context of ethics, we are also as a culture quite familiar with the idea of just desserts as a definition of justice. Consider the common sayings “one gets what he gives.” “scratch my back, and I'll scratch yours.” and “do to others as you would want others to do to you.” As familiar is the well known complaint of our children, “but he did it first!!” In each case there is an implicit or explicit idea of equivalency whereby one good tum requires another just as one bad turn requires another to balance an imagined account.
58. Shakespeare, supra n. 1. at act 1, scene 1, l. 132.
59. Short, supra n. 9. at 200; and Barton, supra n. 5. at 251 (He “has nursed a not unjustified hatred of the Christians …. Treated as something inhuman … Shylock not unaturally responds … with tooth and claw”).
60. See Dolinko, David, The Future of Punishment, 46 Ucla L. Rev. 1719, 1720 (1999)Google Scholar (“[W]e can see that those seemingly antiquated retributive notions … have not only failed to disappear, but have come roaring back with--one might say--a vengeance.”); and Garvey, Stephen P., Punishment as Atonement, 46 Ucla L. Rev. 1801, 1835 (1999)Google Scholar (“[R]etribution has lately received renewed respect.”).
61. See Hampton, Jean, Punishment, Feminism, and Political Identity: A Case Study in the Expressive Meaning of Law, 11 Can. J. L. & Juris. 23 (1998)CrossRefGoogle Scholar (arguing for an expressive view of punishment whereby punishing the offender expresses both the victim's worth and society's moral outrage at his misuse of the victim); see Murphy, Jeffrie G. & Hampton, Jean, Forgiveness and Mercy 122–147 (Cambridge U. Press 1988)CrossRefGoogle Scholar; and Garvey, supra n. 60, at 1815.
62. Meyer, Linda Ross, Forgiveness and Public Trust, 27 Fordham Urb. L.J. 1515, 1526–1527 (2000)Google Scholar.
63. Id.
64. See Spinosa, Charles, Shylock and Debt and Contract in Merchant of Venice, 5 Cardozo Stud, in L. & Lit. 65, 80 (1993)Google Scholar; and Yoshino, supra n. 5, at 210 (agreeing that Portia engages in a technical quibble). It is unclear why as Yoshino puts it, scholars “rail” at what they see as a tactic, for it is of course a tactic that renders the contract impossible to perform. So too, it does so without dismissing Shylock's claim as trivial which is, I argue, important to the ethical cogency of the play.
65. Shakespeare, supra n. 1, at act 4, scene 1, l. 101.
66. Id. at act 4, scene 1, l. 330.
67. Id. at act 4, scene 1, l. 336.
68. As Jeffrie Murphy points out, theorists who approve retribution do not necessarily agree on how what constitutes the “dessert” of retribution. To note the three most common, we conceive of dessert as involving mens rea, as a debt owed to annul wrongful gains from unfair free-riding (Herbert Morris theory in part), and dessert as “involving ultimate character—evil or wickedness in some deep sense.” Murphy, supra n. 57, at 153. What all theories of retribution do share in common, however, is the belief that pain (qua penalty) should be traded for pain. Insofar as one holds to this proposition, it can fairly be said that one indeed has, in some way, the sensibility of an accountant. It should be noted that those in the Restorative Justice movement seek a non-retributive, conciliatory understanding of punishment that emphasizes healing for victims, reconciling victims and offenders, and the reintegration of offenders into the community. See Zehr, Howard, Changing Lenses 125 (Herald Press 1990)Google Scholar (suggesting that restorative justice emerged in response to the “sense” that the “dysfunction” with the retributive paradigm is now “high”). Yet, it is a small movement, and as Stephen Garvey points out, it receives little attention in the law reviews.
69. The great thinker of this thought is Nietzsche, Nietzsche, Friedrich, On the Genealogy of Morals 65–66 (Kaufman, Walter trans., Vintage Books 1969)Google Scholar.
70. Id.
71. Id.
72. Shakespeare, supra n. 1, at act 3, scene 3. ll. 5, 13, 17.
73. Id. at act 3, scene 1, ll. 65-67.
74. See Halio, Jay, Portia Shakespeare's Matlock?, 5 Cardozo Stud. in L. & Literature 57, 60 (1993)Google Scholar. See Lowenstein, Daniel H., The Failure of the Act: Conceptions of Law in The Merchant of Venice, Bleak House, Les Miserables, and Richard Weisberg's Poethics, 15 Cardozo L. Rev. 1139, 1164 (1994)Google Scholar (commenting on Shylock's generally flawed character).
75. Halio, supra n. 1. at 60.
76. Shakespeare, supra n. 1, at act 3, scene 1, ll. 64-66.
77. Id. at act 3, scene 1, ll. 36-38.
78. See Anselm of Canterbury, Proslogion, in A Scholastic Miscellany: Anselm to Ockham 69, at chs. ix–xi, 78–81 (Library of Christian Classics No. 10, Fairweather, Eugene R. ed. & trans., The Westminster Press 1956)Google Scholar:
But how canst thou spare the wicked if thou art wholly just and supremely just? For how does the wholly and supremely just do something that is not just? …. But what justice is there in giving eternal life to one who deserves eternal death? O good God, good to the good and to the evil, on what ground dost thou save the evil, if this is not just, and thou doest nothing that is not just?
Can it be that thy goodness is incomprehensible, lying hidden in the inaccessible light where thou dwellest? Surely in the deepest and most secret place of thy goodness there lies hidden the source from which the river of thy mercy flows. For though thou an wholly and supremely just, yet thou art kind even to the evil, just because thou art completely and supremely good. For thou wouldest be less good, if thou wert not kind to any evildoer.
Id. at 78. See Murphy & Hampton, supra n. 61, at 168-169 (discussing Anselm's paradoxes).
79. Meyer, Linda, Grace and Justice 30 (Ph.D. dissertation, U. Cal. 1991)Google Scholar (on file with author).
80. See e.g. Alison, supra n. 47, at 158. Alison writes, “Jesus was not setting up the stage so as to be able to pull off a sacrificial coup. On the contrary, he did not have anything to do with sacrifice at all.” Rather, Alison sees Jesus as “offering an ongoing set of words and acted-out stories which always serve as ways to detect how sacrificial mechanisms operate in any human group [and] how we must not accept them.” Id. Alison's concern is to untie mercy from sacrifice. Id. In turn, his concern is for the ways in which “other” is used by a group as a focus for its hate and then sacrifice. Yet his image of “birth pangs and travail” in the discovery of “God … as loving of the human state and condition” carries within it the inescapable fact of self-sacrifice that is present in all growth and unfolding. Id. What does motherhood, for example, represent if not a sacrifice of our unattached and free selfhood in the name of other?
81. See Garvey, supra n. 60, at 1801; and Murphy & Hampton, supra n. 61, at 25-35.
82. See e.g. Ninth Annual Stein Center Symposium, The Role of Forgiveness in the Low, 27 Fordham Urb. L.J. 1351 (2000)Google Scholar.
83. Act 4, scene 1, ll. 212-213.
84. Act 4, scene 1, ll. 215-219.
85. Act 4, scene 1, l. 181.
86. Act 4, scene 1, ll. 198-201.
87. As A.R. Humphry observes, Merchant employs the “dominant language of friendliness, affection, and enjoyment to direct our responses.” A.R. Humphry, Style and Assessment in The Merchant of Venice Critical Essays, supra n. 6, at 129. He continues “love expresses itself in immediate and lasting attachments …. Phrases of appreciative friendship abound.” Id.
88. Shakespeare, supra n. 1, at act 4, scene 1, l. 20.
89. Id. at act 4, scene 1, ll. 3-4.
90. Id. at act 4, scene 1, ll. 110-112.
91. Id. at act 4, scene 1, l. 72.
92. Id. at act 4, scene 1, ll. 62-63.
93. Id. at act 4, scene 1, l. 37.
94. Id. at act 4, scene 1, ll. 78-79.
95. Id. at act 4, scene 1, ll. 238-239.
96. Id. at act 4, scene 1, l. 42.
97. See e.g. Goddard, Harold, Portia's Failure in William Shakespeare's The Merchant of Venice 27, 35 (Bloom, Harold ed., Chelsea House Publishers 1986)Google Scholar (Portia tortures all parties for no reason than to create a “spectacle, a dramatic triumph with herself at the center.”); and The Merchant of Venice: A Casebook 20 (Wilders, John ed., Macmillan & Co. 1969)Google Scholar (Once Portia “has Shylock in her grasp she is deaf to her own eloquence.”).
98. Weisberg, Richard, Entering With A Vengeance: Posner on Law and Literature, 41 Stan. L. Rev. 1597, 1620 (1989)CrossRefGoogle Scholar; Yoshino, supra n. 5, at 202 (seeing Portia as exacting a “drastic vengeance”); and Lyon, John, The Merchant of Venicein Twavne's New Critical Introductions to Shakespeare 116 (Twayne Publishers 1988)Google Scholar Shylock loses due to “the cruel hypocrisy of Portia's excessive justice”).
99. Danson, supra n. 4, at 119.
100. See e.g. Kornstein, supra n. 6. at 38 (seeing Portia as purposefully lulling Shylock into a sense of false security).
101. Shakespeare, supra n. 1, at act 2, scene 7, l. 65.
102. Id. at act 3, scene 2, ll. 75-76.
103. Danson, supra n. 4, at 119.
104. Shakespeare, supra n. 1, at act 4, scene 1, l. 302.
105. Halio, supra n. 1, at 75.
106. Halio, supra n. 1, at 60.
107. Shakespeare, supra n. 1, at act 4, scene 1, ll. 183-184.
108. In the Leges Henrici Primi (c. 1115) acts of disobedience toward one's lord or superior were to be resolved through graciousness. “[I]f anyone ma[de] amends to another for his misdeed” and offered something beyond what was owed “along with an oath of reconciliation,” it was commendable of the wronged man to “give[] back the whole thing.” See Leges Henrici Primi, 143 c36, 2, 2a. (L.J. Downer trans., Oxford U. Press 1972). As late as Pope Innocent IV, church fathers taught of importance of not accusing one's brother and of tolerating those wrongs done to us. See Fraher, Richard, Preventing Crime in the High Middle Ages: The Medieval Lawyers' Search for Deterrence, in Popes Teachers and Canon Law in the Middle Ages 215 (Sweeney, James & Chodorow, Stanley eds., Cornell U. Press 1989)Google Scholar.
109. See Koziol, Geoffrey, Begging Pardon and Favor 216 (Cornell U. Press 1992)Google Scholar.
110. Id. at 219 (internal quotations omitted).
111. Id.
112. Shakespeare, supra n. 1, at act 4, scene 1, l. 179.
113. Id. at act 3, scene 4, l. 20.
114. Id. act 4, scene 1, l. 230.
115. Id. at act 4, scene 1, 75.
116. Id. at act 4, scene 1, ll. 195-197.
117. Id. at act 4, scene 1, l. 193.
118. Some legal scholars go so far as to see Portia as a manipulator “ably to deploy her rhetoric to pin … shifting shapes momentarily in the forms most useful to her. As they shift, she releases them without regret; indeed, she does so with pleasure, because the plasticity of the forms allows her to shape them to her advantage.” Yoshino, supra n. 5, at 189.
119. Shakespeare, supra n. 1, at act 4, scene 1, l. 224.
120. Id. at act 4, scene 1, ll. 230-231.
121. Id. at act 4, scene 1, l. 231.
122. Granville-Barker, Harley, The Merchant of Venicein Shakespeare Modern Essays in Criticism 52 (Dean, Leonard F. ed., Oxford U. Press 1967)Google Scholar.
123. Eric Muller has argued, against Jeffrie Murphy, that a proper understanding of the value of human autonomy in a deontological theory of punishment implies that sentencing should involve discretion and mercy. Muller, Eric L., The Virtue or Mercv in Criminal Sentencing, 24 Seton Hall L. Rev. 288, 341–344 (1993)Google Scholar.
124. See Meyer, supra n. 62, at 1515. As Meyer notes, however, “many have argued that only victims can forgive, and that justice, respect for victims and equal protection of the laws are sacrificed when forgiveness overflows its smallish province.” Id. See e.g. Murphy & Hampton. supra n. 61, at 1-34; 162-186; and Robert C. Solomon, Justice v. Vengeance, in The Passions of Law, supra n. 13, at 123.
125. Goodrich, Peter, Amatory Jurisprudence And The Querelle Des Lois, 76 Chi.-Kent L. Rev. 751, 761 (2000)Google Scholar.
126. Sharp, supra n. 40, at 250.
127. Shakespeare, supra n. 1, at act 2, scene 9, line 91.
128. Sharp, supra n. 40, at 252.
129. The philosopher who faced this thought squarely is of course. Nietzsche. “[D]uring the moral epoch of mankind, one sacrificed to one's god one's own strongest instincts, ‘one's nature’: this festive joy lights up the cruel eyes of the ascetic, the “anti-natural” enthusiast.” Nietzsche, Friedrich, Beyond Good and Evil § 55 (Kaufmann, Walter trans., Vintage Books 1989)Google Scholar.
130. Schwager, supra n. 46. at 173.
131. Stephen P. Garvey, in his work on Punishment as Atonement writes that the wrongdoer can only “atone for his wrong if he willingly submits to punishment.” He explains, the guilt ridden wrongdoer
will experience anger and resentment toward himself, just as his victim feels resentment and anger toward him. Moreover, just as his victim's moral worth cannot be restored unless the wrongdoer is punished, so too the wrongdoer cannot restore his own moral standing unless he submits to punishment.
Garvey, supra n. 60, at 1823. Yet, it is not obvious why the guilt ridden wrongdoer's contrition and suffering alone does not purge the wrong. Nor does Garvey speak to the distinctly medieval idea that the one wronged should suffer into reunion by foregoing his need for satisfaction.
132. Shakespeare, supra n. 1, at act 4, scene 1, l. 137.
133. Id. at act 4, scene 1, ll. 212-214.
134. Id. at act 4, scene 1, l. 248.
135. Id. at act 4, scene 1, l. 161.
136. Id. at act 4, scene 1, ll. 313-314.
137. Id. at act 4, scene 1, l. 360.
138. Id. at act 4, scene 1, l. 359.
139. Id. at act 1, scene 3, l. 36.
140. Waddington, supra n. 45, at 473.
141. Matt 5:44-45.
142. Kornstein. supra n. 6, at 45.
143. A point made by several literary scholars. See e.g. Merchant, supra n. 1, at 53; Coghill, supra n. 10, at 22-23; and Grebanier, supra n. 7, at 291.
144. Shakespeare, supra n. 1, at act 4. scene 1, l. 388.
145. As Halio points out, Shylock is like Angelo in Measure for Measure or Bertram in All's Well That Ends Well who “also were recipients—perhaps unmerited recipients—of mercy in the context of justice.” Halio, supra n. 1, at 61.
146. Shakespeare supra n. 1, at act 4, scene 1, ll. 404-408.
147. Id. at act 4, scene 1, l. 412.
148. Id. at act 4, scene 1, l. 425-426.
149. Id. at act 4, scene 1, ll. 445-447.
150. Id. at act 5, scene 1, ll. 166-167.
151. Id. at act 5, scene 1, l. 248.
152. Id. at act 5, scene 1, ll. 251-252.
153. Id. at act 5, scene 1, l. 246.
154. Id. at act 3, scene 1, l. 115.
155. Id. at act 5, scene 1, l. 65.
156. Id. at act 4, scene 1, ll. 195-197.