THE BRUTALITY OF PORTIA’S PLEA

June 16, 2017

An iconic argument in law and literature comes from Shakespeare’s wise arbitrator in disguise, Portia.  A character clearly not free of any conflicts of interest who assumes the role of savior for her fiancé Bassanio’s friend, Antonio. 

 

The Merchant of Venice has many wonderful themes and ideas to explore.  The residue of the play however generally revolves around the unconscionability of the contract bond, the infamous “pound of flesh.”  One message often lost in the thoughts about the play is why Shylock requests such a bond.

 

At the time of the play there were no Jews in England.  Why then would Shakespeare pick such a theme?  From

 

the mind of the arm chair rookie writing this blog, it would appear to be a reaction to a similar play written close to the time by Christopher Marlowe in which things go very badly for the Jew Barabas, in The Jew of Malta.

 

Shakespeare creates a similar character as Barabas in Shylock.  Both are money lenders, both have daughters, both come in conflict over their status in society in regards to their money.  Barabas is killed for his avarice evoking no sympathy from the viewer of the play.  However, in contrast, W. H. Auden says the following regarding Shylock:

 

"After Portia has trapped Shylock through his own insistence upon the letter of the law of Contract, she produces another law by which any alien who conspires against the life of a Venetian citizen forfeits his goods and places his life at the Doge’s mercy. […] Shakespeare, it seems to me, was willing to introduce what is an absurd implausibility for the sake of an effect which he could not secure without it: at the last moment when, through his conduct, Shylock has destroyed any sympathy we may have felt for him earlier, we are reminded that, irrespective of his personal character, his status is one of inferiority. A Jew is not regarded, even in law, as a brother."

— W.H. Auden (The Dyer's Hand)

 

The following excerpt from the play shows how Shylock anticipated that the law might provide him victory over his adversary and in that victory provide him various levels of validation and relevance in society.  Salarino confronts Shylock to see if he is really serious about his bond and the pound of flesh.  Shylock, to Salariono’s dismay, is in fact serious.  He responds:

 

"To bait fish withal: if it will feed nothing else, it will feed my revenge. He hath disgraced me, and hindered me half a million; laughed at my losses, mocked at my gains, scorned my nation, thwarted my bargains, cooled my friends, heated mine enemies; and what's his reason? I am a Jew."

 

"Hath not a Jew eyes? hath not a Jew hands, organs, dimensions, senses, affections, passions? fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer, as a Christian is? If you prick us, do we not bleed? if you tickle us, do we not laugh? if you poison us, do we not die? and if you wrong us, shall we not revenge? If we are like you in the rest, we will resemble you in that. If a Jew wrong a Christian, what is his humility? Revenge. If a Christian wrong a Jew, what should his sufferance be by Christian example? Why, revenge. The villany you teach me, I will execute, and it shall go hard but I will better the instruction."

 

We skip forward to the court.  Antonia has not paid the debt.  Shylock wants his bond.  Portia and the Duke were not present for Shylock’s explanation of his motive given so poignantly to Salariono.  They can’t add it to their reasoning.  Shylock doesn’t put it before the court.  He anticipates that the integrity of the court will be beyond prejudice and will execute the performance of the contract.  He will have his revenge.

 

As the case proceeds it is significant that Antonio admits the debt, the breach, and the bond.  He does not contest the expected performance of the contract.  It is Portia, in her pretend position, that suggests, “Then must the Jew be merciful.”  Shylock rightfully responds, “On what compulsion must I?  tell me that.”  Then proceeds the reasoning of Portia:

 

"The quality of mercy is not strain'd, it droppeth as the gentle rain from heaven
upon the place beneath: it is twice blest; it blesseth him that gives and him that takes:
'tis mightiest in the mightiest: it becomes the throned monarch better than his crown; his sceptre shows the force of temporal power, the attribute to awe and majesty, wherein doth sit the dread and fear of kings; but mercy is above this sceptred sway; it is enthroned in the hearts of kings, it is an attribute to God himself; and earthly power doth then show likest God's when mercy seasons justice."

 

"Therefore, Jew, though justice be thy plea, consider this, that, in the course of justice, none of us should see salvation: we do pray for mercy; and that same prayer doth teach us all to render the deeds of mercy."

 

"I have spoke thus much to mitigate the justice of thy plea; which if thou follow, this strict court of Venice must needs give sentence 'gainst the merchant there."

 

In reading this wonderful logic regarding mercy one might identify that it is Christian philosophy.  It isn’t Jewish.  Shylock is entitled to Christian justice.  However he is in a Christian legal system set up by Christians for Christians.  Now that he has the position over the Christian, Antonio, who had recently hated him and thought to thwart the Jew out of his money, the Christian participants in the process indicated that he “must” be merciful.  Why must he be merciful?  The plea of logic doesn’t answer the question of why he must be merciful.  It implies that it would be Christian to be merciful.  But for the nature of the bond there is no other reason for the Jew to be merciful. 

 

Shylock ignores the speech and responds, “My deeds upon my head! I crave the law, the penalty and forfeit of my bond.”  This declaration indicating that he was assured that he was guaranteed his remedy, which under normal contract law, he was.  If he had asked for various times his initial amount owed, that might have been possible, however, Shylock knew Antonio was a “bankrupt.”  It wasn’t going to be possible to collect his damages.  He went for the “kill,” a pun intended.  The pound of flesh would speak for him.  It would bring attention to his status under the law.  It might awaken the court and society to the injustices that Christian society had placed upon the Jews.  In the end, the court and Christians preserved themselves while depriving Shylock of his wealth and forcing him to convert to Christianity.

 

If we cross back to W. H. Auden’s comments and consider this case in contrast to The Jew of Malta, it would appear that Shakespeare is proposing a variety of questions for his Christian society to consider. In all of Christian Justice is there much Mercy?  Can it apply to only those within the society who are Christian?  Is there no greater stewardship?  Should it not incorporate all those under the law?  Why are some outside the law?  How should they be treated?  If the gospel is unto all, why does the law shrink the circle?  Are such eternal concepts of justice and mercy so narrowly tailored?  While we marvel at Portia’s wisdom, there is an undercurrent of betrayal of the overall system in the outcome of Portia’s mercy and justice.

 

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