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Home :: Archive :: 1996 :: December ::
Re: Merchant of Venice and Anti-Semitism
Shakespeare Electronic Conference, SHK 7.0974.  Friday, 27 December 1996.

(1)     From:   Susan Mather <
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        Date:   Monday, 23 Dec 1996 12:37:23 -0500 (EST)
        Subj:   Re: SHK 7.0968  Re: Merchant of Venice and Anti-Semitism

(2)     From:   Daniel Lowenstein <
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        Date:   Monday, 23 Dec 1996 17:31:28 PST
        Subj:   Merchant of Venice


(1)----------------------------------------------------------------------------
From:           Susan Mather <
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Date:           Monday, 23 Dec 1996 12:37:23 -0500 (EST)
Subject: 7.0968  Re: Merchant of Venice and Anti-Semitism
Comment:        Re: SHK 7.0968  Re: Merchant of Venice and Anti-Semitism

About anti-semitism.  I understand this makes a great angle for reading the
play, but what I've always wanted to ask--Does this mean that we're not
supposed to regard Merchant of Venice as a "good" play because of the
stereotyping?  Or--read it at all because there is anti-semitism or seems to be
anti-semitic overtones?

(2)----------------------------------------------------------------------------
From:           Daniel Lowenstein <
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Date:           Monday, 23 Dec 1996 17:31:28 PST
Subject:        Merchant of Venice

Jacob Goldberg objects to my recent posting, "at the risk of being guilty of
joining the lawyer-bashing brigade."  I do not regard those who disagree with
me as guilty of lawyer-bashing.  Especially when the disagreement is stated in
a reasoned and civil way, as is true of Goldberg's message.

The points I find most difficult to respond to are those relating to the fact
that the statute cited by Portia is not a general statute prohibiting attempted
murder, but is limited to attempts by aliens against the lives of citizens.

I should begin by acknowledging that my use of the term "attempted murder" was
anachronistic.  At least, my criminal law colleagues tell me that the criminal
law of attempts in something like its modern form developed shortly after
Shakespeare's time.  I used the term because, in effect, the statute functions
as what we would think of as a prohibition of attempted murder.

Except, as Goldberg points out, it operates only against aliens and protects
only citizens.  Why?  (This question, "why?", must be understood as a question
of literary interpretation, not of law or public policy, as we might ask if we
were citizens in Shakespeare's Venice.)  One possible answer is that because a
general law of attempts was not yet in place, a general statute might have
seemed strange to an Elizabethan audience, whereas a special, targeted statute
might seem more plausible.  Another possible answer is that there is no
particular explanation, that the statute seemed natural to Shakespeare in the
way that he wrote it.

But it is also quite possible that the targeted nature of the statute is
intended to have a thematic significance, as Goldberg suggests.  As some of the
other recent postings indicate, there are plenty of suggestions in the play of
the hostility of the Venetian Christians toward the Jews in particular and,
perhaps, towards aliens in general.  Perhaps the limited nature of the statute
under which Shylock is condemned is intended to be another such suggestion.

Some of Goldberg's specific questions seem to me to be off the point.  For
example, "What if [Shylock] were not an alien...?  Would he still be guilty of
attempted murder?"  Since we are dealing with a fictional Venice and a
fictional statute, we can't put a gaggle of law firm associates to work
overnight in the law library to find answers to such questions.  Therefore, I
see little point in asking them.  More generally, however, I believe the
questions Goldberg raises are significant and very difficult to answer.  I, at
least, do not have a firm view of the the significance or lack of significance
of the targeted nature of the statute.

While I therefore admit that Goldberg's questions are interesting and that I
cannot answer them, I do not believe they undermine my hypothesis.
Thematically significant in its targeted nature or not, fair or not, there is
an attempted murder statute that applies to Shylock, and he has violated it.
Furthermore, his crime is what lawyers used to call "malum in se" rather than
"malum prohibitum." That is, the conduct is wrong in its own right, not simply
because it is prohibited by law.  If in fact Venetian law fails to criminalize
similar action committed by citizens, the injustice lies in that failure, not
in the statute that criminalizes the conduct for aliens. And if it is unfair,
it is not an unfairness caused by Portia.  She did not write the statute.

I shall not try the patience of readers of this list by responding to
Goldberg's other points, because I have more or less addressed them in an
article I published a couple of years ago.  If anyone is interested, send me a
private message and I'll send you a copy.  Or you can find it in Cardozo Law
Review, v. 15, p. 1139 (1994).  It is a very long article, but only about
twenty pages are devoted to "Merchant."

                                Best,
                                Dan Lowenstein
                                UCLA Law School
 

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