Abstract
William Shakespeare’s plays often consider fundamental questions of law and justice, and in several contexts Shakespeare floats elegant paeans to the rule of law. This is all the more striking because Shakespeare wrote when princes, such as Queen Elizabeth I and King James I, reigned with almost absolute power. This essay will touch on some of these passages1. The final section explores, in the context of the rule of law, Shakespeare’s most famous line concerning the legal profession, in which the suggestion is made that we should kill all lawyers.
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Notes
- 1.
One of the most difficult contexts to maintain the rule of law is in time of war or insurrection. The laws of war and insurrection as evidenced in Shakespeare’s work can often be traced to modern attempts to bring the rule of law to this difficult area. For example, Shakespeare touches on rules of chivalry, prisoners of war, status of lawful and unlawful combatants, status of civilians, rules of combat, and much more. Some fine scholarship addresses these issues, so they will not be repeated here. See, e.g., Theodor Meron, Henry’s Wars and Shakespeare’s Laws (Clarendon Press 1993); Theodor Meron, War Crimes Law Comes of Age (Oxford University Press 1998); Theodor Meron, Bloody Constraint: War and Chivalry in Shakespeare (Oxford University Press 1998); Laurie Rosensweig Blank, “Note: The Laws of War in Shakespeare: International vs. Internal Armed Conflict”, 30 New York University Journal of International Law and Politics 251 (Fall, 1997/ Winter 1998).
- 2.
Lethe is the river of forgetfulness crossed by those entering Hades.
- 3.
2 King Henry IV, V, ii, 65–109. Unless otherwise noted, this essay cites to The Yale Shakespeare (Wilbur L. Cross & Tucker Brooke, eds, Barnes & Noble Books, 1993).
- 4.
Pericles, Prince of Tyre, I, i, 104–105. Shakespeare hardly endorses impunity for regal vice (in this case, incest with his own daughter). Later in the play Pericles refers to Antiochus as a “tyrant.”
Tis time to fear when tyrants seem to kiss. Id. at I ii, 84.
I knew him tyrannous; and tyrants’ fears
Decrease not, but grow faster than the years. Id. at 89–90.
These words may not have been penned by Shakespeare. Some suspect Shakespeare had a hand only in act III and beyond. Others give credit for help in the first two acts. See The Yale Shakespeare (Cross and Brooke, eds.) at 1289.
Later in the play we see that gods, at least, may bring tyrants to book.
HELICANUS: No, Escanes, know this of me,
Antiochus from incest liv’d not free;
For which, the most high gods not minding longer
To withhold the vengeance that they had in store,
Due to this heinous capital offence,
Even in the height and pride of all his glory,
When he was seated in a chariot
Of an inestimable value, and his daughter with him,
A fire from heaven came and shrivell’d up
Their bodies, even to loathing; for they so stunk,
That all those eyes ador’d them ere their fall
Scorn now their hand should give them burial.
ESCANES: ’Twas very strange.
HELICANUS: And yet but justice; for though
This king were great, his greatness was no guard
To bar heaven’s shaft, but sin had his reward.
ESCANES: ’Tis very true. (Id. at II, iv, 1–17).
- 5.
Richard III, I, iv, 171–178.
- 6.
See T. Meron, War Crimes at 108–109.
- 7.
Richard II, II, I, 189–213.
- 8.
The Winter’s Tale, II, i, 194–203.
- 9.
King Lear, V, iii, 186–87.
- 10.
Macbeth, V, i, 32–34.
- 11.
King Lear, V, iii, 23–27.
- 12.
Timon of Athens, IV, iii, 164–166.
- 13.
Id. at IV, iii, 119–135.
- 14.
A more current drama boldly suggested that eliminating lawyers would eliminate crime! The opening scene in the 1939 movie Disbarred (Paramount Pictures) screens this quote, attributed to J. Edgar Hoover:
In the background of almost every crime is a crooked lawyer. The records of the Federal Bureau of Investigation show that the lawyer-criminal is the friend of the hold-up man—the confidant of bank robbers and the hub of bribery activities. He is the brains by which the underworld manages to thrive and to outwit law enforcement. This type of man deserves to be behind prison bars with his clients.
- 15.
Id. at IV, ii, at 64–66.
- 16.
Id. at IV, ii, 58–59.
- 17.
Id. at IV, ii, 60–61.
- 18.
Id. at IV, ii, 65–67.
- 19.
Robert W. Peterson, “The Bard and the Bench: An Opinion and Brief Writer’s Guide to Shakespeare”, 39 Santa Clara Law Review 789, 797, fn 33, 34 (1999).
- 20.
Dick the Butcher notes that Cade had been “burnt i’ the hand for stealing of sheep.” Id. at IV, ii, 56. It was the custom of the time, when a first offender was not executed, to brand the offender on the thumb. Prisoners before the bar were required to raise their right hand in order for the judge to see whether they were a first or subsequent offender. Dick also mentions that he has seen Cade “whipped three market-days together,” although he does not mention the offence(s) prompting this chastisement. Id. at IV, ii, 51.
- 21.
With respect to Cade’s claim to royal lineage, Dick the Butcher notes that Cade’s father was not a lord, but a bricklayer, and his mother was not a Plantagenet, but a midwife and daughter of a peddler. Id. at IV, ii, 34, 37, 39.
- 22.
Id. at IV, iii,14–15.
- 23.
Sonnet 18, ln. 1.
- 24.
At this writing, the Earl’s portrait still hangs behind the High Table in Gray’s Inn Hall. He is indeed much better looking than many lawyers in this subsequent era.
- 25.
The Chronicles of the Wars of the Roses (1996 Bramley Books, Elizabeth Hallam, ed.), p. 34.
- 26.
Henry VI, pt. 2, IV, ii, 95–96. Here Cade turns benefit of clergy on its head. Even in Shakespeare’s day, for some first offences those who could read could claim “benefit of clergy” and were usually spared the rope. Cade is justified when he complains to Lord Say that “because they could not read, thou hast hanged them ….” Id. at IV, vii, 37–38. But Cade, in his new order, apparently makes it a capital offense merely to read and write.
- 27.
Id. at IV, vii, 27–35.
- 28.
Id. at IV, vii, 54–56.
- 29.
Id. at IV, vi, 4–5.
- 30.
Id. at IV, vii, 12–13.
- 31.
Id. at IV, vii, 11–13.
- 32.
Id. at IV, vii, 109–110.
- 33.
Id. at IV, vii, 95–96.
- 34.
Id. at IV, vii, 98–100.
- 35.
Id. at IV, x, 79. In fact, the real Jack Cade’s body was quartered and distributed to various locations and displayed to encourage moral betterment and civic spirit.
- 36.
“A horse! A horse! my kingdom for a horse!” Richard III’s desperate cry when something once taken for granted (a horse), rivals the value of his kingdom in the appropriate exigency. Richard III, V, iv, 7, 13.
- 37.
See Robertson, The Tyrannicide Brief (Pantheon Books 2005) pp. 1, 104, 107, 388 n. 2 (John Cooke, The Poor Man’s Case, an expedient to make provision for all poor people in the Kingdom (London, 1648)).
- 38.
See Robertson, The Tyrannicide Brief at 123. Cooke faulted Charles I for manipulation of the judiciary in John Cooke, King Charls his Case: Or, an Appeal to all Rational Men, concerning his Tryal at the high court of Justice. Being for the most part that which was intended to have been delivered at the Bar, if the King had Pleaded to the Charge, and put himself upon a fair Tryal. With an additional Opinion concerning The Death of King James, The los of Rochel, and, The Blood of Ireland (printed by Peter Cole for Giles Calvert, 1649).
- 39.
See Robertson, The Tyrannicide Brief at 11, 12, 15.
- 40.
Id. at 15.
- 41.
See Robertson, The Tyrannicide Brief at 104; John Cooke, The Vindication of the Professors and Profession of the Law (London, 1646).
- 42.
See Robertson, The Tyrannicide Brief at 81.
- 43.
Id. at 104–105, 388 n. 2 (John Cooke, Unum necessarium or Poor Man’s Case, an expedient to make provision for all poor people in the Kingdom (London, 1648)).
- 44.
Id. at 80. Like Shakespeare, he knew well that poverty and injustice were joined. “Here’s a fish hangs in the net, / like a poor man’s right in the law; ‘twill hardly come out.” Pericles, Prince of Tyre, II, i, 107–108.
- 45.
Ibid.
- 46.
See Robertson, The Tyrannicide Brief at 81.
- 47.
Id. at 112.
- 48.
Id. at 87.
- 49.
Id. at 93, 387 n. 9 (John Cooke: What the Independents would have, or a character declaring some of their tenets, and their desires to disabuse those who speak ill of that they know not (London, 1647)).
- 50.
See Robertson, The Tyrannicide Brief at 105.
- 51.
Id. at 106.
- 52.
Id. at 105.
- 53.
Id. at 142, 144.
- 54.
For an account of the trial of Charles I, see Robertson, The Tyrannicide Brief, supra at 151; Sean Kelsey, Politics and Procedure in the Trial of Charles I, 22 Law and History Review 1 (2004).
- 55.
The aphorism, “Put not your trust in princes” is attributed to the Earl of Strafford upon finding that, for political expedience, his close friend, Charles I, had reneged on his promise to assure a pardon of the Earl should the Earl suffer conviction for treason by parliament. See Robertson, The Tyrannicide Brief at 57–58. The Earl was executed.
- 56.
Joining John Cooke on the scaffold that cold Tuesday morning of 16 October, 1660 was another worthy, Hugh Peters. Hugh Peters was a leading founder and first overseer of Harvard College. He was accused, in effect, of being a “terrorist” who had traveled to England to seek the death of Charles I.
- 57.
Id. at 287.
- 58.
Kenneth C.H. Willig, The Bar in the Third Reich, 20 American Journal of Legal History 1 (1976).
- 59.
Id. at 1.
- 60.
Id. at 13.
- 61.
Id. at 11.
- 62.
Id. at 11.
- 63.
Id. at 13.
- 64.
Udo Reifner, The Bar in the Third Reich: Anti-Semitism and the Decline of Liberal Advocacy, 32 McGill Law Journal 96, 100 (1986–1987).
- 65.
Id. at 113.
- 66.
Id. at 119.
- 67.
Id. at 103.
- 68.
Id at 103.
- 69.
Id. at 104.
- 70.
As reported in U.S. v. Reid, 214 F. Supp. 2d 84, 95–96 (D. Mass. 2002).
- 71.
See Robertson, The Tyrannicide Brief at 33.
- 72.
San Francisco Chronicle, June 4, 2008, p. A2.
- 73.
The deputy assistant secretary of defense for detainee affairs, Charles “Cullly” Stimson, tried to insure the continued absence of lawyers by suggesting that corporate clients boycott firms whose lawyers were volunteering their services to Guantanamo detainees. The Pentagon disavowed the remarks. As reported by CBS News, Jan 13, 2007, http://www.cbsnews.com/stories/2007/01/13/terror/main2358883.shtml (Last visited, August 1, 2008).
- 74.
Quoted in http://voices.washingtonpost.com/fact-checker/2008/07/mccain_on_equal_pay.html (Last visited, January 29, 2009).
- 75.
“I don’t think you’re doing anything to help the rights of women, except maybe help trial lawyers and others in that profession.” Quoted in http://thinkprogress.org/2008/05/07/mccain-equal-pay-girl/ (Last visited January 29, 2009).
- 76.
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618; 127 S. Ct. 2162; 167 L. Ed. 2d 982 (2007).
- 77.
H.R. 2831, the Lilly Ledbetter Fair Pay Act of 2007. Signed into law January 28, 2009.
- 78.
Compare the elegant and respectful language with which Lord Goff concludes his dissent in Queen v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147; [1999] 2 WLR 827; [1999] 2 All ER 97 (“For these reasons I am, with great respect, unable to accompany the reasoning of my noble and learned friend on these particular points”) with Justice Scalia’s derision for the apparently ignoble and unlearned majority in Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2817 (2006)(“[A]t least the court shows some semblance of seemly shame ….”). Shame? Indeed!
Derisory and dismissive references towards colleagues who disagree with him frequently embellish Justice Scalia’s opinions. For example, his colleagues’ positions “cannot be taken seriously,” Webster v. Reproductive Health Services, 492 U.S. 490, 432 (1989), are “irrational,” Id. at 537, are “really more than one should have to bear,” Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 985 (1992), are a “verbal shell game,” Id. at 987, evidence “almost czarist arrogance,” Id. at 999, or a “Nietzschean” vision, Id. at 996. Justice Musmanno of the Pennsylvania Supreme Court could also turn a colorful phrase with respect to other members of the bench. In his view, the trial judge’s ruling was an “incredible indulgence of a despotic whimsicality.” Jedwabny v. Philadelphia Transp. Co., 390 Pa. 231, 238–239, 135 A.2d 252, 256 (1957).
- 79.
“We have met the enemy and he is us,” is the most famous line of American cartoonist Walt Kelly. It is spoken by his comic strip character Pogo, a possum who lives in the Okefenokee swamp.
- 80.
The Taming of the Shrew, I, iv, 285–286.
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Peterson, R.W. (2010). Reflections on Shakespeare and the Rule of Law. In: Sellers, M., Tomaszewski, T. (eds) The Rule of Law in Comparative Perspective. Ius Gentium: Comparative Perspectives on Law and Justice, vol 3. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-3749-7_6
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