The Shakespeare Conference: SHK 25.503 Thursday, 18 December 2014
From: Hardy Cook <
Date: December 17, 2014 at 6:11:43 PM EST
Subject: TLS: Shakespearean Injustice
[Editor’s Note: The following appeared in the most recent TLS. I will provide excepts here; and if anyone wishes the entire article and does not have access to TLS, please contact me at
356pp. Oxford University Press. £20 (US $35).
978 0 19 955824 7
Courtroom scenes and the limits of rhetoric on stage
By David Wootton
It is hard to think of a moment in a Shakespeare play when justice – whether human or divine – is done. In Titus Andronicus, one of his earliest plays, Titus complains that Astraea, the goddess of justice, has abandoned the Earth. He has good reason to complain: his daughter has been raped, and her hands cut off and tongue cut out to prevent her from identifying her assailants. In King Lear, a much later play, Gloucester complains, “As flies to wanton boys are we to th’ gods. / They kill us for their sport”.
Friar Lawrence in Romeo and Juliet is at least cleared of the suspicion of murdering the lovers, but the Montagus and Capulets are surely responsible for their deaths, and they will go unpunished. What we mainly find in Shakespeare are stories of injustice. Shakespeare’s Lucrece, for example, insists over and over again that she is in no way to blame for her rape by Tarquin; but she kills herself anyway, as she knows she must. Even when justice seems to be done, one is bound to have one’s doubts. At the end of Measure for Measure Angelo is forced to marry Mariana, to whom he had been engaged, but whom he had sought to abandon; he is sentenced to death for his other crimes, quite properly, but as a result of her pleas he is pardoned. Is this justice? It is an exercise of the Duke’s prerogative power, but if it is justice it comes from overriding the law, not enforcing it. In The Merchant of Venice, Shylock is denied his pound of flesh. This, perhaps, is a just outcome, but he is also forced to convert, deprived of his precious identity as a Jew and compelled to become a Christian. Is this justice?
If it is hard to find justice in Shakespeare, it is certainly not difficult to find drama that centres on questions of guilt and innocence. This does not usually take the form of a set-piece courtroom scene, as in The Merchant of Venice: Iago sets himself the task of persuading Othello that Desdemona is guilty of adultery, and Hamlet sets out to discover whether Claudius is indeed guilty of murder. There’s no shortage of other examples. You might think that Quentin Skinner in his new book, Forensic Shakespeare (the Clarendon Lectures in English), would address the pursuit of justice in Shakespeare’s plays. It would seem a natural progression from Liberty before Liberalism to “Justice before the Rules of Evidence”. But you would be wrong: neither “justice” nor “evidence” appear in the index to this book, which is a prequel to Skinner’s Reason and Rhetoric in the Philosophy of Hobbes (1996). It has very little to say about justice in Shakespeare, and what it has to say about Shakespeare’s dramatic methods scarcely helps us understand the plays (nor would Skinner claim otherwise, for he says he intends to explain what Shakespeare does, not interpret it).
Skinner’s argument is simple, clear and convincing. Every educated Englishman in Shakespeare’s time studied rhetoric at school. The foundation of rhetoric was training in how to make a speech – whether for the defence or the prosecution – in a court of law. We tend to think rhetoric is about using figures of speech, but that was only a small part of the orator’s training, which relied both on textbooks inherited from classical Rome and on contemporary summaries of traditional teaching. The orator’s core training was quite specific: it was focused on courtroom argument. (The first person I can find who rejects the classical definition of rhetoric as “the art of pleading well” and insists, as we might, that rhetoric is concerned with questions of style, not logic or substance, is John Barton in 1634.)
What Skinner is able to show, quite definitively – the book is nothing if not systematic and exhaustive – is that over and over again Shakespeare’s characters follow to the letter the instructions of the rhetorical handbooks (there are exceptions, such as Shylock, who break the rules, but they never benefit by doing so); indeed, in Romeo and Juliet the Chief Watchman accurately quotes a standard Latin rhetorical handbook as he sets about establishing how the lovers died. The standard speech was supposed to be divided into five parts (beginning, narrative, confirmation, refutation, peroration), and, chapter by chapter, Skinner traces the way in which each part of the speech is handled in a series of plays. The key to Skinner’s argument is the claim that Shakespeare never imposes on the audience a complete legal argument delivered by a single speaker – rather he moves the different parts of the speech between different speakers, so that it is only with a rhetoric textbook in hand that one can, as it were, reassemble the complete speech out of its scattered fragments. Most members of the audience will therefore have been quite unconscious of what Shakespeare was doing, recognizing no more than fragments of his overall plan. The hidden pattern within the plays, their close dependence on the ancient art of rhetoric, was perhaps intended for his own eyes only – certainly no one before Skinner has sought to elaborate it systematically, though Skinner seems to assume that Shakespeare’s audience contained numerous people with his own analytical skills.
What difference does it make to discover that Shakespeare had memorized the rhetoric handbooks (or – surely less likely – had them open on his desk as he wrote)? This is the big question, and Skinner provides no answer to it. The whole point of his early work on the history of political theory was that the historian must identify conventions in order to work out what people were doing with them, how they were manipulating and modifying them to achieve their objectives. But we are never quite told here why Shakespeare wants to follow the rules; after all other dramatists, often better educated than Shakespeare, and certainly keener to show off their education, didn’t bother. We can see what Iago gains by using the full range of techniques advocated by the textbooks to persuade Othello of Desdemona’s guilt, but what exactly does Shakespeare gain by making his Iago, somewhat implausibly, a skilled rhetorician?
[ . . .]
Portia’s defence, Skinner shows, follows the textbooks. But of course this is a play, not a real trial; the law involved is neither English nor Venetian, but imaginary. What matters to Shakespeare is that Portia should win and win convincingly. Where Silvayn requires a pair of equally balanced speeches, and so deals a stronger hand to his Shylock, Shakespeare wants Portia to triumph, and so stacks the deck in her favour. Shylock loses for the same reason Desdemona dies or Don Quixote tilts at windmills or Elizabeth Bennet gets married: because that is what the plot demands. Why he loses is a problem of reverse engineering. Shylock does not lose because Portia is a better lawyer, or has the law on her side, or follows the rules of rhetoric; he loses because the plot requires him to, and so Portia must be given all that she needs to ensure his defeat (but not without the appropriate period of dramatic suspense when the outcome seems likely to go the other way). Reading Skinner, one sometimes feels there is a slippage of this sort between Shakespeare and his characters. Both follow the rules of rhetoric; but he and they don’t necessarily have the same motives, and we need to understand both their motives and his.
Understanding, it seems to me, always involves interpretation – explaining that Shakespeare is following the rules of rhetoric doesn’t amount to understanding what he is doing in following them. I can explain the rules of chess, and I know when they are being followed, but I wouldn’t pretend to understand what is going on when two grandmasters play against each other; I would need someone to interpret the game for me. So we are left with a puzzle: why does Shakespeare, alone among early modern dramatists (or so it would seem), follow the rules of rhetoric with such care? Surely not because this was the only way of providing a convincing representation of disputes over guilt and innocence for an English audience: there is no reason to think that the prosecution in an English court of law followed the rules closely, and it may not be a coincidence that all the plays studied by Skinner are set abroad.
It would be helpful here to consider some of the basic principles of the English law in Shakespeare’s day. There were as yet no rules of evidence: hearsay evidence, for example, was admissible in court. There was no “beyond reasonable doubt” test, and indeed no legal presumption of innocent until proven guilty. The prosecution was under no obligation to produce witnesses for cross-examination: Sir Walter Ralegh was found guilty of treason on the evidence of a single witness who was not produced in court. Witnesses for the prosecution testified on oath; those for the defence did not. Prisoners had no right to know the evidence against them before trial (the key piece of evidence against Ralegh was sprung on him during the trial), no right to representation, and no right to speak last in their own defence. Trials lasted at most a few hours, often only a few minutes. No wonder Ralegh referred to what he called “the cruelty of the laws of England”.
By contrast, the rules of rhetoric had been drawn up for the procedures of Roman law in trials of citizens, not slaves (who could be tortured to get at the truth). The defendant was entitled to representation, and the defence was placed on equal terms with the prosecution. To invoke (even if only in the author’s mind, and not in the audience’s) the rules of rhetoric was to invoke a world in which every argument invited a counter-argument, a world in which guilt and innocence were matters for disputation. (Skinner remarks on this, but only in the context of the problem plays.) To enter this world is to enter a place in which the outcome is in doubt until the very end of the trial, a world in which the audience listen attentively, but withhold judgment while they listen, a world in which the judgment of the court is not necessarily true (as the judgment of the English jury was always held to be – there was no appeal against a jury’s finding on a matter of fact), but simply reflects the clash between two opposing arguments at a particular moment in time. It is to enter a world that is inherently dramatic, and one in which justice is never manifest, but is always a rhetorical construction. It is this world that Shakespeare chose to enter every time he set up a dispute over guilt and innocence in a foreign land.
[ . . . ]
One of Skinner’s most interesting perceptions, in the last chapter of his book, is that Shakespeare never seems satisfied by commonplaces, and when they are invoked in his plays they never carry the expected ring of authenticity. Shakespeare’s drama is thus, unlike the courtrooms of the England of his day, an education in systematic scepticism; although he never says, as Ralegh does, that the laws of England are cruel, he exploits the conventions of the rhetorical handbooks in such a way as to imply that a trial at English law is a bit like Othello’s trial of Desdemona, where Desdemona never hears, until it is too late, the charge against her, and never gets to put forward a defence. In The Winter’s Tale Hermione is convicted of adultery even though the Delphic Oracle has declared her innocent. Through cases such as these Shakespeare is able, innocently and inadvertently (as it would seem), to put the law of England to the question.
Such an argument pushes the evidence (that word again) to the limit, perhaps to breaking point. But at least it tries to situate Shakespeare in a world of actual legal practice and considers his trials not as if they were real, but as if they are simply dramatic representations. In his book Skinner has tried to keep to more narrowly technical questions. But even here his failure to consider the bigger picture leads him to go astray. Thus in his translations and paraphrases he repeatedly uses the phrase “matters of fact”. This is indeed a phrase in Elizabethan English (I have used it above), but the Elizabethans do not have “facts” as we understand the word. When they talk about “facts”, they have in mind the Latin word “facio”, I do. A fact is a deed; a matter of fact is a question about whether someone did or didn’t do something, just as we still use the phrase “an accessory after the fact”. In English, “facts” in the modern sense only become commonplace with the foundation of the Royal Society: the word is a slogan of the new science. In Latin the word that approximates to “fact” in this modern sense is not factum but res. We say “the facts speak for themselves”; this is a late seventeenth-century translation of res ipsa loquitur: the thing itself speaks. To live in a world without facts is to live in a world of signs and tokens, and Skinner entirely misses the opportunity to explore the difference between that world and our own. He does not even cite the standard authorities on evidence in Renaissance law, such as John H. Langbein and Ian Maclean, though he has surely read them.
[ . . . ]
Shakespeare’s courtroom scenes show an author not enamoured of rhetoric, but frustrated by it. Hobbes would try to turn such frustration into a new science, but even his science could not promise justice in a court of law; at least by the end of the eighteenth century defendants were allowed to call witnesses and to be represented in court; they were even innocent until proven guilty beyond reasonable doubt. Shakespeare, who must have seen the heads of traitors stuck on spikes on London Bridge, would have thought the adversarial system, imperfect as it is, a great advance. We are so often told our rights go back to Magna Carta (next year, of course, we will be told this old story over and over again) that we easily forget just how modern many of them are. If we do, we can’t hope to understand why there is no justice in Shakespeare’s plays.