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Home :: Archive :: 2003 :: January ::
Re: Shylock Redux
The Shakespeare Conference: SHK 14.0167  Thursday, 30 January 2003

[1]     From:   Martin Steward <
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        Date:   Wednesday, 29 Jan 2003 23:07:04 -0000
        Subj:   Re: SHK 14.0151 Re: Shylock Redux

[2]     From:   Sean Lawrence <
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        Date:   Wednesday, 29 Jan 2003 19:27:08 -0400
        Subj:   Re: SHK 14.0151 Re: Shylock Redux


[1]-----------------------------------------------------------------
From:           Martin Steward <
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Date:           Wednesday, 29 Jan 2003 23:07:04 -0000
Subject: 14.0151 Re: Shylock Redux
Comment:        Re: SHK 14.0151 Re: Shylock Redux

"What 'rights' did the Elizabethans think were fundamental and
inalienable? Was 'different' among them?"

Whether or not a human being had any "inalienable" rights would have
depended upon one's confessional position (and its bearing on one's view
of predestination, efficacy of works and grace, etc.), because rights
understood as "inalienable" in our period could only come from God. (In
fact, that's the only sensible interpretation of "inalienable" nowadays,
as well, I'd have thought.)

The rights enshrined in Magna Carta were just beginning to be extended
to a larger proportion of the population, but they were class rights
rather than fundamental human rights, because they were concerned
largely with the integrity of private property. This, I would venture to
add, was true even of the rights to due process of law. Decisions in
Bates's Case, the Five Knights' Case, Shipmoney, and others tend to
demonstrate that these rights were not considered "inalienable" in any
sense - there was of course still a fierce debate as to the extent to
which the laws and the law-courts of the land (and therefore the rights
they enshrined and protected) were the King's, and extended to subjects
only as a customary privilege. This would be true of the rights of
institutions, too - most obviously Parliamentary privilege, which was
overridden on several occasions greeted with dismay but never really
considered illegal as such.

As for the right to be different, that was extended to subjects under
the (fairly reasonable) terms dictated by the government (if that's not
a non sequitur). The best example I can think of is the statute
containing the Oath of Allegiance for Roman Catholics, which was, in
effect, a way of preserving the right of Romanists to be true to their
faith without posing a political threat to the king and his government.
The fact that Protestants felt that the oath discriminated against them
(because it necessarily clashed with the earlier Oath of Supremacy)
suggests that it was considered to be an extension of a special right to
a particular section of English society. But, after all, this was
nothing more than a statute, and statutes could be repealed.

Rights are fine - but they only become an issue when someone disregards
them, which renders the whole business of whether or not they are
"inalienable" rather beside the point.

It's safe to assume that no one considered themselves to have rights,
except in the sense that other people had responsibilities towards them
as a corollary to everyone's responsibilities before God - and that
included the King, as James I acknowledged in his publications on the
rights of Kings, Basilikon Doron, The Trew Law of Free Monarchies, etc.

I apologize if this is a bit crude - I can provide references and/or
more detail if anyone's really interested in this issue.

martin

[2]-------------------------------------------------------------
From:           Sean Lawrence <
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Date:           Wednesday, 29 Jan 2003 19:27:08 -0400
Subject: 14.0151 Re: Shylock Redux
Comment:        Re: SHK 14.0151 Re: Shylock Redux

Jacob Goldberg asks a very interesting question:

>May we assume that, if Shylock had been a citizen in
>Venice, instead of an alien in Venice, there would not have been a
>charge of attempted murder grounded on a legal contract legally
>entered into by two willing parties?

It's often objected that no law code could allow contracts which call
for violation of the law.  I'm wondering, though, whether such an
arrangement could be possible if the contract was intended to bridge two
legally separate communities, who wouldn't be incorporated under a
single 'code' of law.

In other words, while relations between Christians would be governed by
a single set of laws, customs, etc. (a 'social contract', Hobbes would
say), and relations between Jews would be governed by a similar set of
laws, customs, etc. (call it Talmudism, whatever Shakespeare's knowledge
of the Talmud), relations between the two would be based entirely on
one-of-a-kind ad hoc legal agreements, honoured by the courts but not
part of a regular legal framework.  I'm not a lawyer, so I wouldn't know
the terms for this, but it strikes me as bearing a certain affinity with
how treaties between countries are one-off deals though, since the
Treaty of Westphalia, efforts have been made to link them together into
codes.

Yours, wordlessly,
Sean Lawrence.

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