William Shakespeare is celebrated for his insight into human nature, but one law professor says the playwright also had great insight into questions of justice.
Author Kenji Yoshino explores what lawyers and law students can learn from the bard in his recent book, "A Thousand Times More Fair: What Shakespeare's Plays Teach Us About Justice."
How important should empathy be for a judge? What about commitment to the rule of law? The question was raised in the 2009 confirmation hearings of Supreme Court Justice Sonia Sotomayor.
"We're not robots, to listen to evidence and don't have feelings," Sotomayer said at the time. "We have to recognize those feelings and put them aside."
Author Kenji Yoshino
Yoshino, professor of constitutional law at New York University, says Shakespeare examined these questions 400 years ago in his play "Measure for Measure."
According to Yoshino, two officials in the play represent opposite approaches. The first is governed by empathy and mercy.
"That notion of judging is represented by the Duke Vicentio at the beginning of the play," he says. "And what Vicentio's problem is that he's so merciful that the state sinks into anarchy."
Lord Angelo, the judge who takes over in Vicentio's absence, enforces the law strictly, without mercy.
As the plot unfolds, both approaches are shown to be wrong, says Yoshino.
"And I want to say, look, Shakespeare got there first and he eliminated both of these extremes. He showed that the first extreme is dangerous because it leads to too much mercy. Mercy in an individual is a wonderful thing, but mercy on the part of a governmental actor can be a very dangerous thing."
Shakespeare, he says, understood that rigid enforcement of the law irrespective of circumstances is also unjust.
"So what we're looking for is jurists...who are able to balance the claims of empathy against the claims of the rule of law and can find that middle path."
'A Thousand Times More Fair: What Shakespeare's Plays Teach Us About Justice,' by Kenji Yoshino
Yoshino says Shakespeare dealt with questions of justice in many of his plays. He notes that in Elizabethan England, when the playwright was writing, the modern state and the rule of law were evolving.
In "Othello," for example, Iago convinces Othello that his wife has been unfaithful. The charge is based on the fact that she no longer has a handkerchief Othello gave her as a token of his love. What Othello doesn't know is that Iago asked his own wife to steal the handkerchief.
"Villain, be sure thou prove my love a whore;
Be sure of it; give me the ocular proof:
Or by the worth of man's eternal soul,
Thou hadst been better have been born a dog
Than answer my waked wrath!"
Seeing is believing
"Shakespeare calls this a problem of ocular proof, the idea that we need to see evidence before we believe in it and that, oftentimes, when metaphysical questions of guilt or innocence are difficult for us to answer, we have a tendency to reduce them to questions that pertain to physical evidence. So when we can’t measure what’s important, we make important what we can measure."
Yoshino believes this happened during the 1995 murder trial of O.J. Simpson, a former football star accused of killing his ex-wife and her friend in a jealous rage. Defense lawyer Johnnie Cochran faced what seemed like overwhelming evidence of Simpson’s guilt. But the lawyer showed the jury a glove left at the crime scene and demonstrated that it appeared not to fit Simpson's hand.
Cochran repeated over and over. "If it doesn’t fit, you must acquit."
The jury acquitted Simpson. Several jurors later said the glove persuaded them.
Yoshino says the play that deals most directly with the law is "The Merchant of Venice." A dramatic courtroom trial determines if the money-lender Shylock can take a pound of flesh from the borrower Antonio, who defaulted on a loan. The use of human flesh as collateral is central to the story, and the court must decide if the contract can be enforced, even though it would result in Antonio’s death.
"The quality of mercy is not strain'd
It droppeth as the gentle rain from heaven
Upon the place beneath; it is twice blest; "
Insight into human conflict
The play’s meaning is debated to this day. Yoshino says his students benefit from reading Shakespeare.
"Law students continuously surprise me in their capacity to respond to the humanities, and...when I teach my courses in law and literature, it is really seen as a healing or a recuperative experience both for the students and for me because I think that what a legal education does, to paraphrase another author, is that it sharpens the mind by narrowing it."
Yoshino says the narrow focus helps students isolate relevant facts but it's incomplete. That's where literature helps, he says, and no one has more insight into human conflict than William Shakespeare.
"He just had such a deep knowledge both of human nature and of its various varieties. You can really populate an entire commonwealth with characters from Shakespeare’s plays."
And fill a whole case book on the law as well.