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Retrial for Shakespeare's Shylock

Seven senior lawyers convened in New York last month to reconsider the case against Shylock, Shakespeare's money lender in The Merchant of Venice.

One of those lawyers, Anthony Julius - best known for representing Princess Diana in her divorce from Prince Charles - explains why he voted to let merchant Antonio keep the money after all.

Shylock After the Trial, by Sir John Gilbert (pre 1873)
Shylock famously demanded a 'pound of flesh' from merchant Antonio
In the play, the young man Bassanio asks his friend Antonio to lend him money so he can woo the beautiful and wealthy heiress Portia. Antonio promises to cover a bond, so Bassanio turns to the moneylender Shylock and names Antonio as the loan's guarantor.

Shylock, who hates Antonio because he had insulted and spat on him for being a Jew the week before, proposes a condition: if Antonio is unable to repay the loan at the specified date, Shylock will be free to take a pound of Antonio's flesh.

Antonio defaults on his loan, and Shylock's case against Antonio goes to court.

At first it looks like he will win, and will get his pound of flesh.

A disguised Portia tells the court that the bond is indeed enforceable. Shylock, it appears, is free to cut. But Portia pleads with him to be merciful and to take cash in substitution.

"No, the time for payment is past, I want the penalty instead," says Shylock.

It looks bad for Antonio. He braces himself for the knife, and then the situation takes a different turn.

Stages of argument

Portia comes up with her ingenious reading of the bond. "Take the flesh", she says, "but not the blood." The blood is not specified in the bond, so it cannot be taken.

Portia, by Henry Woods (1888)
A beautiful and intelligent heiress, Portia is Shakespeare's heroine
This is the first stage of Shylock's defeat. He cannot take the flesh without the blood, so he is stymied.

This, and the earlier point that favours Shylock, could be called Portia's "first stage argument".

Portia then presses her advantage.

The bond amounts to an attempt on the life of a Venetian citizen and that is a capital offence (the "capital crime statute"). Not only does Shylock forfeit the bond, he also forfeits his life.

This could be called Portia's "second stage argument".

The court, showing mercy to Shylock that he had not shown to Antonio, commutes the sentence, though on somewhat humiliating terms.

Literary 'law'

Of the seven judges who heard Shylock's appeal in New York, five sided with him and therefore upheld the appeal. Only two were against him, and I was one of this dissenting minority.

The majority judges thought that Shylock should get something - at least repayment - for the loan default. They also thought he was not guilty of the capital offence.

I thought these decisions were sentimental and did not derive from any proper legal analysis of the issues. They had the best intentions. They thought that a persecuted Jew had come before them and they wanted to come to his aid.

But this is what might be called a "category mistake". It assumes that Shylock is a person who has a life independent of the play, and that the logic of the play itself can be disregarded. It cannot be disregarded; not, at least, without violence to the play's texture.

It is in accordance with the logic of the play that Shylock is condemned. That means, among other things, it is in accordance with the "law" in the play.

Question of character

The case against Shylock's appeal works like this...

First, we have to disregard Portia's first stage argument.

It is pretty clear that both her points about enforceability are bad. She starts off by saying that the bond can be enforced, but she can only take this position by suppressing the existence of the capital crime statute.

No court would allow a contract that involves committing a criminal act to be enforced.

She then says that the bond can only be enforced if Shylock does not take blood, but she is wrong about this too.

Any court would allow the blood to be taken as well as the flesh. Whatever is incidental to the performance of the bond would be allowed as part of its performance.

Then there is Portia's second stage argument which she should, of course, have advanced straight away.

All she needed to say, as soon as she turned up in court, was "the capital crime statute forbids it!" That would have been the end of the case.

But that would also have meant no suspense or drama.

The majority judges needed to rewrite the play to find for Shylock. But to rewrite the play is to lose its Shylock.

The judges extinguished him as a character by upholding "his" appeal... and that was not merciful.

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