I'm working through several pieces in
The Law and Shakespeare, edited by Constance Jordan and Karen Cunningham. I'm finding the articles a little uneven so far, but I do quite like this one by Thomas C. Bilello on “Law, Equity, and Portia’s Con.” While I don't agree with his arguments, he very clearly explains each step in his argument and I find his explanations of Aristotle very helpful. Also, my citations to
The Merchant of Venice are from the Applause First Folio, prepared and annotated by Neil Freeman.
Bilello is interested in the tension between law and equity, a concept which he defines through an Aristotelian lens. I want to spend some time looking at his descriptions of Aristotle since I’m unfamiliar, but before I do, I want to look at Bilello’s argument:
He writes, “I will argue that Portia’s judgment has little to do with justice or equity. Instead, she is motivated more by her desire to protect Antonio, her new husband’s confidant. Indeed, by inserting herself by artifice into the legal proceedings to enforce the bond, Portia converts the law into an instrumentality of her will” (110). I do not agree with this assertion. If Portia was disinterested in justice, she would make such a heated response to Bassanio in the courtroom when he begs her, “Wrest once the Law to your authority. / To do a great right, do a little wrong” (4.1.239-40). If she were truly concerned only with saving Antonio, she could do so here. She could take this opportunity to take up the Duke’s call who threatens on his power “to dismiss this court” (XX). But she does not. She replies (I think with passion), “It must not be, there is no power in Venice / Can alter a decree established: / ‘Twill be recorded for a President, / And many an error by the same example, / Will rush into the state: It cannot be” (4.1.242-5). This, I think, is Portia’s concern. Yes, she hopes to save Antonio, but of equal if not greater importance is upholding the law. Antonio must be saved without damaging that statutes of Venice.
Back to Aristotle. Bilello breaks down Aristotle’s definitions thus. The law is a set of “general rules” which operate mechanically. Their operation is considered “legally just,” but in particular cases the application of justice can become problematic. Equity acts as a balance in such cases by requiring the law to be interpreted “as if the lawgiver ‘were present’ and ‘had known of this particular case’” (110-1). He goes to look at an early modern text published in approx. 1530 called Doctor and Student by Christopher St. German in which St. German considers the concept of equity. He argues that equity is universal and that, in agreement with Aristotle, it must “follow the ‘intent of the lawe,’ rather than the strict ‘wordes of the lawe’” (111).
For me this is the balance happening all over Merchant, most especially through the character of Portia. It is easy to the strict words, but it not always easy interpret the intent of those words. Isn’t this what is happening with the casket test? Portia does not necessarily know what her father’s intention was; she is frustrated by the text of his will. “Is it not hard, Nerissa” she asks (1.2) -- yes, of course it is. We are invited to feel compassion and pity for Portia’s predicament. We don’t understand why any father would constrain his daughter in this kind of test. To my mind, this seems less like a test for Portia’s suitors than a test for Portia herself. The onus of the test does indeed fall to her own interpretation. This is why so much seems to be written on Portia’s “con,” yes? She does end up bending the letter of the will, but she may still uphold its intent. Nerissa tells us the most about the will itself and the lottery of the caskets. She consoles Portia that the correct casket “wil no do bout never be chosen by any right-ly, but one who you shall rightly love” (1.2.223-5). The syntax is slightly ambiguous here, since Shakespeare often exchanges “who” for “whom.” Will the casket be chosen only by one who shall rightly love Portia? Or by one whom Portia shall rightly love?
This is a question I want to pursue throughout the course of the play. What is Portia’s relationship to strict law and to the law’s intent? How does it change? I have a lot of thoughts about this relationship in the courtroom, of course, and in the final scene of the play. In a nutshell I see Portia’s arc through the play as coming to realize the importance of equity, of finding the intent of the law. This is perhaps her dilemma in Acts I and II. She is focused on the strict words of her father’s will. In the scenes with Morocco and Arragon (which bear closer examination), she does not sway their decision. It is during Bassanio’s test that this changes. To the man she actually wants to choose rightly she slips strong hints, but she does not say in uncertain terms “You shall choose lead.” Yes, there’s gray area in regards to the hints she drops, but here Portia learns to value equity over strict legal justice. Is not possible that this is the true test her father sets for her?
This is where I’d like to pick up next week -- posing this question throughout the courtroom scene and then through the final scene in the play. I’m very invested in debunking the cynical view of Portia that I’m finding in most contemporary productions of this play. The interpretation of Portia is one of the hinge-pins of the play, the other being the portrayal of Shylock. It seems like most modern productions will not allow both characters to be sympathetic. If we sympathize with Shylock, we must hate Portia. But I think a fully sympathetic Shylock destroys the narrative that the play intends, precisely because we are not supposed to hate Portia. In terms of mere number of lines, this is Portia’s play -- she speaks close to 600 lines of text, whereas Shylock speaks about 350. He appears in five scenes; she appears in nine. They certainly counter each other, but structurally Portia is our hero and Shylock is our villain. And I really have to stop sidetracking myself ... the question for next week (in addition to my reading becoming more focused on Measure) is to look at Portia’s relationship with law and equity in the courtroom scene and in the final scene.
