Shakespeare’s laws

A justice, a judge, a philosopher, and an English professor

In April the University of Chicago Press published Shakespeare and the Law: A Conversation among Disciplines and Professions, edited by assistant professor Bradin Cormack and professor Richard Strier from the English department and Martha C. Nussbaum, who teaches in the Law School, the Divinity School, and the classics, philosophy, and political science departments. Sixteen scholars and judges wrote essays for the book, which takes four angles of approach to legal issues in Shakespeare. The essays included contribute to the branch of legal scholarship known as law and literature, which was closely linked with the University of Chicago Law School from its beginnings in the 1970s and is “now, in one form or another, a recognized part of the American legal curriculum,” the editors write.

In the book’s four main sections, the contributors examine the grounds for thinking about law and literature together; Shakespeare’s knowledge of law; his attitudes toward law; and the role of law, politics, and community in his works. The book closes with the transcript of a session at the conference that inspired it. At the Law School in 2009, Nussbaum, Strier, and senior lecturer in the Law School Richard Posner were joined on stage by associate justice of the Supreme Court Stephen Breyer to discuss legal themes in three plays Breyer had selected: Hamlet, Measure for Measure, and As You Like It. The following is adapted from their discussion of Hamlet.

Stephen Breyer: Why Hamlet? Well, why Hamlet, that’s an absurd question. But I think you see things differently as you get older and reread things. This time I thought that the play is really about two things—and I can say it’s “really about” because it isn’t my profession to be interpreting Shakespeare, whereas anyone who is in that field as a profession wouldn’t dare say what it’s “really about.” But since I’m an amateur, I can say anything. So I think that what it’s about in large part is a certain progression—the progression from “To be or not to be” to “Readiness is all.” In Hamlet, what struck me is at the very end. What does Hamlet want there? He wants Horatio to tell his story. He wants the story. Why? To justify himself? Not necessarily. Maybe to tell what has happened to him, spiritually, in the course of what we have seen in this play. And he says, when Fortinbras comes in, please, please, you tell this story too, for you will repeat it. He says it in much better writing; and then he says silence. Yeah.

Richard Strier: Well, I’m happy to say as, I suppose, the professional in this field, that I think the plays are really about things also. And I think that Shakespeare was interested in issues. What do we know about his means of composition? Every play, with the exception of two, has a narrative or dramatic source for its plot. So here’s this guy, he’s reading and reading and reading and reading, looking for material. His sources are all sorts of things: classical histories, little trashy novels, other plays, etc. So he’s reading, reading, reading.

Presumably he read more books than he used as sources. So how does he decide, I’m going to write a play on the basis of a little Italian novel and it’s going to be Othello; or I’m going to write a play on a familiar story like King Lear or Hamlet; or I’m going to redo some stories about English history? Well, as he was reading promiscuously, I think something made him intellectually interested. So this seems to me a good way to approach each of the plays: to ask “what are the issues that interested Shakespeare in this particular story?”

It seems to me that Hamlet is a play very interested in issues of evidence and justification, the questions of on what basis you can know something and on what basis are you justified in taking a major action on something that you think you know. While we know that Hamlet actually gets something right, namely that Claudius did, in fact, kill Hamlet Senior, Hamlet himself never has any good evidence for this (true) belief. He’s told about it by an apparition—repeatedly called a “thing”—that claims to be the ghost of his father released from purgatory.

Well, England was a dominantly Protestant country, and Protestants didn’t (and don’t) believe in purgatory. So Hamlet gets this dubious advice from this dubious “thing.” Then, to gather evidence, to check up on the thing, he decides to rely on the bizarre idea that somehow literature is more powerful than life. He thinks that his uncle, who was perfectly happy to commit a murder, is somehow or other going to be so moved by a play that he’s going to cough up his guilt.

Hamlet’s been reading [Sir Philip] Sidney’s Defense of Poetry, where there’s a story about this, and Hamlet believed it. Critics often think this bizarre plan worked—Claudius got upset at the play. But at a crucial point during the play within the play, Hamlet makes a disastrous slip of the tongue and describes the murderer in the play as the nephew rather than the brother of the king. He thereby absolutely confused the experiment, because now we can’t know what Claudius has responded to. He might be responding to Hamlet, his nephew, saying he’s planning to kill him. So just at the point where Hamlet thinks he’s got conclusive evidence, we know (or should know) that he doesn’t, even though we know that he’s right, since in the next scene Claudius confesses his guilt—but of course, in a soliloquy. So the whole question of evidence and justification is wonderfully rich and vexed in Hamlet.

Martha Nussbaum: As a philosopher, I have been working a lot on the role of emotions such as anger, fear, compassion, and disgust in the law. I think Measure for Measure and Hamlet, which were probably written pretty close to each other in Shakespeare’s career, have a similar focus on sexuality as fearful and disgusting, and as a danger to good order and political authority.

In Hamlet, it’s the sexual relationship between Gertrude and Claudius that has apparently led to murder and the toppling of legitimate political authority. We don’t see much about Gertrude from her own point of view, so to speak. Gertrude is probably not so bad. She probably doesn’t know about the murder of her former husband, and she really is enjoying her newfound sexuality with her new husband. She wants to have some fun in life. But of course, that’s not the way Hamlet sees her.

His view of life in general throughout the play is suffused with images of disgust at the female body in general and at his mother’s body in particular. Hamlet finds his mother’s sexuality filthy, and he feels himself contaminated by the fact that he has been born of such a body. Well, this theme interests me a lot, because there has been a long tradition of talking about an allegedly good role for disgust in law. Lord Devlin in the 1950s, and our own University of Chicago colleague Leon Kass (U-High’54, SB’58, MD’62), when he was head of the President’s Council for Bioethics, have both said that the disgust of an average person is a sufficient reason to make something illegal, even if it causes no harm to others.

But by now there’s a large psychological literature, an experimental literature on disgust, which really does corroborate what Hamlet suggests—namely that people’s disgust is quite irrational, and that it often tracks an anxiety that people feel about their own animal nature and their own bodies. And sexuality, women’s sexuality in particular, is very often the focus of that anxiety. I think we are given, in the play, reasons, which modern psychology then further corroborates, to view such disgust with great skepticism, and to think that the disgust of an average person might actually not be a good reason at all to make something illegal.


Richard Posner: I do want to emphasize one point about the law and literature movement. There are other really interesting aspects of the movement, but the heaviest emphasis has been on what we’re doing in this conference, exploring legal themes in literary works. I don’t think you learn much about the law from such works. What I find more interesting is that they provide insights into jurisprudence, as distinct from law at the practical level.

In Hamlet, the jurisprudential interest focuses on revenge, which is a stage in the evolution of law and remains important today. If you ask why victims of crime will cooperate with the police and prosecutors, revenge is a factor. The support of the death penalty is, I think, mainly motivated by a feeling of revenge.

In Hamlet you have a critique of revenge, and I’m using “critique” in a precise sense. It’s not just critical, it’s an effort to look at both sides of the problem. I disagree with Professor Strier and I’ll explain why. I think Hamlet has two incompatible beliefs. I think he takes the ghost seriously. So there’s a duty of revenge laid on him by his father, and that’s very understandable because Hamlet can’t appeal to the law. Claudius controls the laws of Denmark, and it’s when the legal system is ineffectual that the pressure for revenge is really strong. So Hamlet’s under a heavy duty. On the other hand, we read in the New Testament that “Vengeance is mine, saith the Lord.” Now, what exactly that means—whether you can have delegation of the divine vengeance monopoly to human beings—that’s a big issue.

The deeper problem with revenge is that it’s a self-help system. The victim, or his family, has a duty of revenge, and yet these people are not necessarily well equipped by temperament or experience or skills to be law enforcers, and you see that in Hamlet. You have three major revengers, Hamlet, Laertes, and Fortinbras, and they’re very nicely contrasted. Hamlet is too hesitant, too cool, to be a really effective revenger. Laertes is too hot, too impulsive. The golden mean is Fortinbras, who is perfectly cast to be a revenger, but the problem is that he is perfectly cast because of his extraordinarily exalted notion of honor, which leads him in the fourth act to be willing to sacrifice an army to capture a few acres of worthless ground. So we see deep problems with both honor as motivation and revenge as implementation. 

Let me just explain very, very briefly why I do not agree that there’s any doubt about the authenticity of the ghost. I don’t think an Elizabethan audience would be bothered by encountering purgatory, because the play is set in medieval Denmark before the Reformation, so whatever strange religious customs are encountered should not have troubled Shakespeare’s audience.

I should say here that I experienced a kind of arrested development in literary appreciation. I was an undergraduate of Yale, an English major in the ’50s, when the New Criticism was the dominant style of literary criticism in—well, not everywhere (not Chicago) but certainly at Yale. Cleanth Brooks, perhaps the most famous New Critic, was my senior thesis adviser. The basic premise of the New Criticism was that a work of literature should be interpreted in such a way as to make it the best aesthetic object that it can be. It wasn’t to be looked to as a source of ideas, a source of ethics, or a source of history.

It seems to me that if the ghost of Hamlet’s father is a fake, a devil, it makes the play rather pointless. It makes Hamlet a terrible dupe. It says well look, this guy Hamlet, he didn’t realize there’s no purgatory, so the ghost has to be a devil, and so Hamlet kills, and he dies at the end, all because of a mistake he made. I think it diminishes the play to think of it in those terms, and I use aesthetic rather than historical criteria to evaluate works of literature.


Stephen Breyer: I basically agree with Dick [Posner]—in particular, with what he said about literary works as aesthetic objects. That’s why we read them. But I don’t think that to say literary works are “aesthetic objects” means they don’t have ideas, and it doesn’t mean that philosophy is irrelevant to them. I like [Albert] Camus, and one of the reasons why I think Camus is a great novelist is because he speaks to me probingly about morality—and in that sense, he is a moralist. Maybe [Joseph] Conrad is too, though Conrad thinks that he is primarily writing aesthetically. So there: I don’t separate morality from aesthetics. In some works, ideas and thought play a larger role than in others, and the morality enters in much more. A Jane Austen novel might be another good example.

I don’t think the point was that the ghost is a fake. I think the point was that Hamlet isn’t sure, and I think there’s very good reason for his not being sure. He’s looking for truth, and by the time he’s pretty sure what the truth is, it doesn’t really matter that much any more.

Then the only other thing I could find that I might want to disagree with is Judge Posner’s “Goldilocks and the Three Bears” theory of revenge. Do you remember that? He said it’s either too hot, too cold, or just right. I do think the three theories of revenge are there, but I think that ... Well, Fortinbras, who knows? Fortinbras isn’t there that much, and maybe it is true that he does try to get revenge. Maybe he was going to conquer all of Denmark; we’re not certain. I wouldn’t give him permission to go over my kingdom. I wouldn’t be sure whether he would stop or not. And Laertes is rather pathetic and does, in fact, get revenge. Hamlet is not after revenge at the end really, because he’s ready. Readiness is everything or, as he says, all.

Richard Strier: Can I just say a word about the dupe business? Well, first of all, there’s no doubt the supernatural “thing” is there, so it’s not an illusion, certainly not in the first act, since everyone sees it including a skeptic. The question is what does it mean if, let’s say, there is at least the possibility that “the thing” is a demon, and that, despite the apparent success of The Mousetrap, Hamlet is acting without sufficient evidence, even though he’s right.

It seems to me this is part of what makes the play a tragedy. I agree with Dick that criticism should try to see the maximal possible aesthetic value in a work of art. In my view, with regard to Hamlet, adding the element of uncertainty and of the demonic, perhaps even adding the element of mistakenness, intensifies the tragedy and is part of what makes it such a deeply, deeply sad and moving play.

Reprinted with permission from Shakespeare and the Law: A Conversation among Disciplines and Professions, edited by Bradin Cormack, Martha C. Nussbaum, and Richard Strier, published by the University of Chicago Press. © 2013 by The University of Chicago. All rights reserved.