As the chair of the Shakespeare Theatre Company’s Bard Association, I have the pleasure of helping coordinate annual events at the theatre with Washington’s legal community, including the Mock Trial, Will on the Hill and Shakespeare and the Law panel discussions.
By participating in these events, I have been able to observe Shakespeare’s legal insights on subjects ranging from marriage and divorce law to lobbying to corruption. All the programs we sponsor in the Bard Association seek to take the Shakespeare’s timeless themes off the page, out of the texts, and off the stage of the Harman Center for the Arts and show how they work in courtrooms in America today.
Perhaps the most surprising moments are those when we can observe Shakespeare departing from American legal practice, allowing us to see the gap between his legal world and ours. Measure for Measure offers precisely one of those examples.
In this play, Shakespeare asks the most fundamental and searching questions of the law: What is the difference between the law and justice? How does the law govern our darkest impulses, and how does it fail? The answers Shakespeare provides to these questions, as I can testify, still resonate powerfully today.
Criminal defense attorneys are often (all too often) asked what we call The Question: “How can you defend that person?” Think Casey Anthony, George Zimmerman or even Dzhokhar Tsarnaev. With that question in mind, I decided to look at the case of Angelo in Measure for Measure. The human and legal aspects of Angelo’s case could certainly be compared to Dominique Strauss-Kahn or former Congressman Gary Condit of our modern times. But what kind of legal defense can be mounted for one of Shakespeare’s worst and seemingly most indefensible villains? And what can his defense tell us about the properties of government? The answer may surprise you, and give you insight as to how defense attorneys today answer The Question. Lawyers, among other duties, serve to ensure that the system works for the Angelos and Tsarnevs of the world, so that it works for all the rest of us as well.
For the purposes of the trial, we can only evaluate evidence that is admissible in court. This rules out acts 1 through 4, in which no witnesses observe the contested conversation between Angelo and Isabella, the plaintiff in question. The first public accusation against Angelo surfaces in Shakespeare’s act 5, scene 1, when Isabella, a novice nun, describes an attempted sexual assault. According to Isabella, Angelo, who had been acting as the deputy of the Duke, demanded that only “by gift of [her] chaste body/To his concupiscible intemperate lust,” would he spare her condemned brother Claudio’s life. Having completed the act, Angelo then sent a warrant for Claudio’s death, despite his promise to spare him. Isabella then produced the figure of Mariana, Angelo’s former fiancée, who testified that she had consummated the marriage act in place of Isabella. Finally, Isabella produced one Friar Lodowick, who had aided the two women in deceiving Angelo. This Friar would later, in the same scene, be revealed as the Duke in disguise, with full knowledge of Angelo’s alleged crimes.
Putting aside for the moment whether Angelo is guilty, the question at hand is whether it makes sense to accept Isabella’s public accusation and the ensuing testimony of Mariana and the Friar/Duke as proof of Angelo’s guilt. My first instinct as a defense attorney is to observe that, instead of receiving a fair trial, Angelo is publicly railroaded, ambushed by a conspiracy designed to coerce him into a confession.
Secondly, the Duke (disguised as a friar) acted as a knowing colluder in this conspiracy. The Duke commits entrapment by orchestrating the bed trick, whereas Angelo had acted legally (albeit dishonorably) by breaking off his marriage to Mariana.
Third, and most importantly, the Duke disregards the rule of law in order to take justice into his own hands. Rather than returning to Vienna to preside over his citizens, the Duke returns in disguise and spies on his subordinates. He then participates in a conspiracy designed to entrap Angelo and metes out personal justice. In the American system, more often than not, this behavior would lead to a mistrial, an appeal or possibly even an impeachment of the Duke for abuse of executive powers.
In this final scene of the play, the Duke provides a homily-like speech discoursing on the nature of the law:
Haste still pays haste, and leisure answers leisure;
Like doth quit like, and measure still for measure (act 5, scene 1).
As pointed out by Kenji Yoshino, the law professor and author of A Thousand Times More Fair; What Shakespeare’s Plays Teach Us About Justice, the Duke is here paraphrasing the famous and oft-quoted line in the book of Exodus:
thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot,
burning for burning, wound for wound, stripe for stripe. (21:24)
Also known as the Code of Hammurabi, this Old Testament conception of justice belongs more to an ancient world of retributive violence than to our modern state. In our system, it is wrong to bring about justice by any means possible, but in the Duke’s paradoxical logic, two wrongs together make a right, two offenses against the law serve to uphold it, measure makes measure. In other words, the play appears to be asking whether the ends of “justice” justify the means of getting it.
Readers and attendees of this play might allow their (well-founded) dislike of Angelo to color their perception of the play’s more subtle messages. Doing so provides a way to shift blame onto an unsympathetic scapegoat, but does not get at the real problems examined in the play or ensure that we will learn the lessons to avoid repeating them in the future. If we only care about seeing Angelo punished for his sins, we will never notice that Vienna has returned to the chaotic legal status quo that reigned at the very beginning of the play. The Duke has brought about justice, but only through a web of deceit and a miscarriage of the law. No real reform has been achieved.
The plot of Measure for Measure is almost a legal parable, an allegorical tale concerned with demonstrating the proper enforcement and application of the law. Perhaps its wisest and darkest observation is that the law is an imperfect thing, subject to abuse by human actors. Instead of blaming Angelo alone, we should see that Shakespeare is also pointing fingers at the other characters as well. In this play (and sometimes in real life), a powerful executive supersedes his legal authority in order to bring an outlaw to justice. Today, some might point to President Obama’s use of drones. In Shakespeare’s cautionary tale, this morality play of the law, we can see plainly the evil of Angelo. But we also ought to see that how we treat the Angelos of the world can make us no better than he is.
Abbe D. Lowell is head of the Litigation Department at the international law firm of Chadbourne & Parke, and is also a Trustee and chair of the Bard Association of the Shakespeare Theatre Company.