Shakespeare and the Law

“Why may not that be the skull of a lawyer? Where be his quiddities now, his quilleties, his cases, his tenures, and his tricks? Why does he suffer this rude knave now to knock him about the sconce with a dirty shovel and will not tell him of his action of battery?” – Hamlet, Act V, Scene I

Legend has it that during a period of about 10 “lost years” in Shakespeare’s early life, during which historians have been unable to account for his whereabouts, the Bard is said to have engaged himself at a certain law firm (or firms) as a kind of law clerk or even as a solicitor. Such legal background is said to explain the Bard’s conversance in law as expressed in his plays such as Measure for Measure and The Merchant of Venice. Such legend has prevailed even today. “Lawyers’ love of Shakespeare is appropriate given that more of his lines are devoted to discussing law than any other profession. (Some think his knowledge of the law was so detailed that the ‘real’ Shakespeare must have been a lawyer” (Why lawyers love Shakespeare, The Economist (8 Jan 2016)). The legend however remains a controversy in the study of the Bard’s life.

To be attributed, or not to be?

The most controversial issue surrounding William Shakespeare is whether he actually authored the works attributed to him. For centuries, there have been many candidates put forth as being the true author of Shakespeare’s works; Edward de Vere (the 17th Earl of Oxford), being the most preferred among them. Nothing could better demonstrate the “ardent zeal” of American and English judges than the setting up of two moot courts, one in Washington, DC (held in 1987 and presided over by William Brennan, Harry Blackman and John Paul Stevens) and another in London’s Inner Temple (held in 1988 and presided by Lords Ackner, Oliver and Templeman with two expert witnesses attending for each side). The case was called In re Shakespeare: The Authorship of Shakespeare on Trial and at issue was whether Edward de Vere was the true author of Shakespeare’s works. By unanimous “verdicts” in both courts, the Oxford Earl was “so put down” (see James Shapiro, Contested Will: Who Wrote Shakespeare? (2010); see also Anonymous’ (2011), a film in which Edward De Vere is portrayed as the real author of Shakespeare’s works).

It appears that the challenge of the authorship of Shakespeare’s works has always come from academics, from Oxford in particular. Many cannot accept that an uneducated nobody from Stratford wrote such a corpus of literary work, becoming an acclaimed genius worldwide. They first deny he is the genuine author; then find what would, at best, be called “circumstantial evidence” to cast a shadow of doubt over his abilities – such as lack of adequate life experience. They then put forth one of Shakespeare’s contemporaries, who belonged to their scholarly camp, as the true author of his works. As to the  

Oxford academics’ insistence on the Earl’s claim, James Shapiro, a Shakespeare biographer, said, “I find it all both impressive and demoralizing, a vision of a world in which a collective comfort with conspiracy theory, spurious history and construing fiction as autobiographical fact had passed a new threshold.” (Shapiro, Contested Will: Who Wrote Shakespeare? (2010)).

Shakespeare’s Benchmark

Attribution issues aside, Shakespeare’s works have been a source of quotations not just for authors, but also for lawyers, judges and ordinary people worldwide for centuries. Lawyers and judges have been quoting from Shakespeare’s plays in their briefs or judicial opinions. In Hong Kong, we can find Shakespeare’s quotations from the Bench in the following cases:

“A little fire is quickly trodden out;
Which, being suffer’d, rivers cannot quench.”
Henry VI, Part III, Act IV, Scene VIII

the Final Court of Appeal warned that “In the present case there were many instances – none of which the Court of Appeal appear to have noticed – of harm being done by prosecuting counsel and not being undone or even mitigated by the trial judge,” and ordered a re-trial.

  • Lord Millet NPJ in Suen Toi Lee v Yau Yee Ping for the Estate of Chu Lee, deceased (FACV 22/2000) said, “Like Shakespeare’s rose, concubinage by any other name would be as sweet.” (Romeo and Juliet, Act II, Scene II), using Shakespeare’s rose as a metaphor for a concubine in an action on the true construction of the word “concubine” as used in the Intestates’ Estates Ordinance (Cap. 73). However, faced with contrary evidence, such union of concubinage was held not legal albeit, “sweet – not lasting”.
     
  • Mortimer, JA in a coroner’s appeal case in China Light & Power Co. Ltd. and Another v Warner B.G. Banks, Esq Her Majest’s Coroner of Hong Kong (CACV 55/1994) said, “The purposes of ‘Crowner’s quest law’, as the clown calls it in Shakespeare ‘s Hamlet, Act 5, Scene I, are consistently misunderstood by the public and the media”, pointing out the wrong belief that the main purpose of a coroner’s inquest is to lay the foundation for a civil claim for damages.
     
  • Hunter JA in Tins’ Industrial Co Ltd v Kono Insurance Ltd (CACV 136/1987), an appeal on the construction of a contractor’s performance bond, quoted the notorious Antonio’s “single bond” from The Merchant of Venice that enabled Shylock to demand “an equal pound of flesh”.

Yam J. in Wing Hang Bank Limited v Kwok Lai Sim and Kwok Yuen Ping (HCMP 4362/2003), in which he referred to the same Shakespeare’s rose, said, ‘‘‘Roses by another name will smell as sweet,’ said William Shakespeare. On the other hand, it must be the case that ‘dung by the name of roses will smell as foul’,” and allowed the defence of misrepresentation in an action on the guarantors’ liability under a bank loan on the ground that the loan document was in effect a charge and a personal guarantee though named a legal charge.

The same Shakespeare’s rose was quoted by Lord Clarke then MR of the UK Supreme Court (who was appointed as a Non-Permanent Judge of the Court of Final Appeal in 2011) in his 2007 speech, The Law Lords: A Rose As Sweet By Any Other Name? Reflections on the new UK Supreme Court and 21st Century Constitutional Change, regarding the replacement of the former Law Lords by the UK Supreme Court in which he referred to the famous rose by saying: “I leave you with one thought, borrowed as I am sure you will all recognise from Shakespeare: ‘… that which we call a rose by any other name would smell as sweet.’ What is true for roses is, I am sure, just as true for Law Lords”.

Recently in South Africa, in the widely reported murder trial of the Paralympics’ athlete, Oscar Pistorius, South Africa’s Supreme Court Judge Eric Leach in his overruling judgment, described the murder of Reeva Steenkamp (Pistoruis’ girlfriend) as “a human tragedy of Shakespearean proportions”, upon finding Oscar Pistorius guilty of the murder. This is just one of the recent instances to show the universality of Shakespeare’s tragedies favored by judges (Oscar Pistorius Appeal: Justice Eric Leach’s Judgement in full, International Business Times (4 Dec 2015)).

Why the collective obsession?

Why have Shakespeare’s plays become the apple of the eye (second perhaps only to the Bible) of so many judges and lawyers? One explanation may stem from English school curriculums, in which Shakespeare’s works are taught. For instance, Polonius’s advice to his son, Laertes, in Hamlet has impressed many students who “shall the effect of this good lesson keep”. Another obvious reason is the beauty of Shakespeare’s language, which in its “infinite variety” can “catch all passions in his craft of will” due to it being “full of wise saws and modern instances”.

Yet another may be lawyers’ collective obsession to fancy Shakespeare as one of their professional colleagues. Shakespeare’s legal knowledge as shown in The Merchant of Venice and Measure for Measure likely augments this belief. And perhaps one should not rule out the propensity of learned brethren to “justly boast of” the Bard’s words in preference to “all saws of books”.

The late Justice Scalia of the US Supreme Court has given yet another reason for quoting Shakespeare in his judicial opinions (ie, to make them interesting primarily to attract the attention of law professors and law students). Such was a tactic he adopted when preparing his dissents (see Cynthia G. Claytor, An Evening with Antonin Scalia and Justice Bokhary, p. 19, Hong Kong Lawyer (Mar 2016), where he participated in a dialogue with Justice Bokhary during an event organised by the Chinese University of Hong Kong).

In common law countries, to quote Shakespeare’s plays in legal documents and judicial decisions has long been fashionable. Shakespeare was first quoted by the US Supreme Court in 1893 (Magone v Heller, 150 US 70 (1893)). In American courts alone, Shakespeare’s 37 plays have been quoted in more than 800 judicial opinions (see Robert W. Peterson’s, The Bard and the Bench: An Opinion and Brief Writer’s Guide to Shakespeare, 39 Santa Clara L. Rev. 789 (1999)). References to Shakespeare can be found in all manner of legal actions from common divorce proceedings to murder cases (Eugene Morgulis, The Bahd of New England: Citing Shakespeare in the First Circuit (2009)). Offering yet another reason why the Bard’s plays are so frequently cited, staff reporters at The Economist write, “One answer lies in Shakespeare’s status as an embodiment of high culture; citing him seeks to invest the judgement with credibility and invoke a sense of history” (Why lawyers love Shakespeare, The Economist (8 Jan 2016)).

It is interesting for lawyer-lovers of Shakespeare to note an exchange of Shakespearean humour between two US Supreme Court Justices (Browning-Ferris Industries v Kelco Disposal, 492 US 257, 290 (1989)) in which Justice O’Connor, in a partial dissent, supports the argument that the 8th Amendment’s use of the word “fine” encompasses private civil damages by referencing Shakespeare’s verse:

“I have an interest in your hate’s proceeding,
My blood for your rude brawls doth lie a-bleeding;
But I’ll amerce you with so strong a fine,
That you shall all repent the loss of mine.”
– Romeo and Juliet, Act III, Scene 1

Justice Blackmun, writing for the majority, retorted:

“Though Shakespeare, of course,
Knew the law of his time,
He was foremost a poet,
In search of a rhyme.”

It seems that the same fashion of citing Shakespeare’s works in judgments would be prevalent in European courts in view of the growing tendency of European law schools to incorporate English literature into their curriculums (see Geraldine Gadbin-George, To quote or not to quote: ‘Literature in European court decisions and legal English teaching’ (2013), in which she gives persuasive support for such trends). Adding to this growing interest, Shakespeare’s plays have recently been brought to the digital world by the New Theatre Live and the Royal Shakespeare Company in the form of stage show-turned-film. Their popularity is best reflected in the box-office results of Benedict Cumberbatch’s new play Hamlet, which was distributed in the New Theatre Live series and has been acclaimed as among the greatest Hamlet renditions of all times (Lucia Binding, Shakespeare 400th Anniversary: Best Hamlets from Laurence Olivier to Benedict Cumberbatch, International Business Times (22 Apr 2016)).

For All Times and Places

To celebrate the 400th anniversary of Shakespeare’s death, the British Council will run a programme known as “Shakespeare Lives” in more than 70 countries including China and Hong Kong, where Shakespeare’s works will be played and exhibited. “Shakespeare is not of an age, but for all time,” as Ben Jonson has said. However, it also appears he is for all places, as well. 

Foo & Li