Legal perspectives in Shylock v.

Antonio

Introduction
William Shakespeare’s play The Merchant of Venice fondly known to legal
practitioners as a civil suit - Shylock v. Antonio. Almost 4 centuries after, the timeless
appeal and curiosity has seldom diminished among legal professionals and critics.
Literary critics used the lens of literary criticism to unravel some major themes
centred on greed, love, betrayal and justice, while legal critics viewed how the socio-
legal structures operated in Venice through the lens of jurisprudential concepts.
Venice as a miniature state with its imperfection mirrors the state of affairs that we
inhabit today. The present research aims to understand the legal complexities of the
play by examining the legal foundations of Venice: state laws social practices,
business transactions, and contract formations, through socio-legal perspectives.

Venice, a part of modern day Italy, was then a territory under the Roman Empire.
The society of Venice was formally governed by the Venetian statute and the Duke
enforces the rule of law in the territory. The formal governance seeks refuge in
Christian principles which explains the reason for banning of usury within the
territorial limits. The social practices of Venetians were guided by the legal
apparatus, which they respected and followed. The Duke provided a stability in law
and order much to the expectation of the Christians. This legal apparatus of Venice
was non-secular which can also imply the involvement of religious morals in the
daily affairs of the state.

Even the trade practices were guided by religious beliefs - the two of which is –
Christianity for Venetians and Judaism for Jews. The Venetian population was
predominantly Christian and their holy book Bible prohibits lending for high interest
rates, considering it usury. Jews lived on the outskirts of Venice practising Judaism
which also allowed lending money on interest. The antipathy by the Christians
towards Jews dates back from their belief in the crucifixion of Jesus Christ that
apparently alludes to Biblical past. Hence lands or kingdoms inhabited by Christians
including all factions – Catholics, Protestants, Anglicans, etc. hated Jews living
amidst them. Jews were kept segregated because some of their religious principles
were incompatible and immoral according to the basic tenets of Christianity.
Therefore the social mores of the time was essentially Christian and the Venetian
legal apparatus was unable to resist its overwhelming influence.

Antonio capitalises on the animosity between Christians and Jews to further his
business interest while Shylock was condemned for trading the same way. Shylock
and his Jewish compatriots lived in ghettos outside the main city limits and were
considered as unequal’s [aliens]. The state of Venice perpetuated separation and
segregation towards Jews as a community. Intriguingly, the laws of Venice allowed
interest based lending by Shylock [on the outskirts], but it relied on societal morality
to regulate ‘bonds’ between two parties. Antonio gained a competitive edge by
virtue of being a Christian and openly denounced Shylock to claim a moral high
ground, which hardly supports the principles of equity and justice. Hence Antonio
by his conduct and Shylock by his trade [usury] violated the ethical tenets of fair
trade practice. Jewish trade practices then were restricted to “ghetto loan banks
[heavily taxed], Strazzaria [dealing in second hand cloth or clothing], general trade,
medical profession and printing Hebrew texts.” (jvenice.org) Jews were wronged by
Venice on two counts: one, by their exclusion from Venetian citizenship, and another
because of economic and trade restrictions.

Nature of the bond

The bond between Antonio and Shylock in Venice was against the basic principles of
equity and fairness. Antonio, however, in spite of being aware about a clause that
required him to forfeit his ‘pound of flesh’ if he failed to pay 3000 ducats, entered
into the [vicious] contract and registered it in Venice. One could argue that Venice
relied upon the logical assumption that two parties will not knowingly enter into any
unacceptable contract. Venetian laws were bound to provide protection and
enforcement to any bond [even if unilateral] signed between two parties if they have
registered in Venice. Venice in this way provides legal protection to trade and its
economy. However failure of any Venetian authority to protect and enforce any
registered bond / contract will result in impeachment of the laws of Venice. Shylock
took refuge in the state’s compulsion to allow him to perform specific performance
of the [vicious] bond / contract.

Legal Issue
Venice allows the enforcement of a bond between any two parties if it is sealed as
per the law. Shylock sealed a bond with Antonio in Venice where he agreed to lend
Antonio 3000 ducats for three months, however, as a penalty Antonio pledged a
pound of flesh close to his heart, if he is unable to pay. Should Venice grant Shylock
the forfeiture of Antonio’s pound of flesh as nominated in the bond as Antonio is
unable to pay the money?

Proceeds of the verdict

As an answer to the above, Portia concluded that it can and did award Shylock the
enforcement of his bond primarily because the statue of Venice allows it. In the
enforcement, Portia however informs Shylock of the court’s conditions i.e. no
amount of blood shall be shed, and neither any amount of ‘pound of flesh’ shall be
taken either more or less, as it is not expressly mentioned in the bond. The judgment
should conclude here as it addressed the legal issue. Shylock proved his inability to
execute the specific performance of the contract respecting the judge’s condition, and
instead asked the principle amount, which he earlier promised as part of his oath to
be unacceptable equal to committing “perjury”. As per Shylock’s submission in the
court, his demand for the principle amount was untenable as it went against his oath
and therefore Portia estopped him from claiming the principle amount. Ideally, the
court must have reasonably allowed the plaintiff – Shylock to operate the only
option i.e. to perform or withdraw from the specific performance of the contract
granted as per the verdict.

Adjudication by Portia
Portia as [Balthasar] an expert in Latin [necessary qualifications to deliberate in a
court] was a suitable judge for Shylock v. Antonio. Venice had no counsels then to
represent the parties and Portia acted as an inquisitorial judge with an aim to
impartially adjudicate the case. However, Portia’s conduct as an inquisitorial judge
erred while rendering justice, as she indulged in impersonation [as Balthazar] and
breach of trust [conned the Duke]. Therefore Portia’s verdict validated by the Duke
of Venice against Shylock can be questioned and deemed unenforceable in actual
terms [if proved]. Shylock begged the court to enforce specific performance i.e.
“pound of flesh” from Antonio’s breast. Portia initially aimed to mitigate Shylock’s
passionate plea by persuading him to consider the tenets of equity, fairness and
mercy in the lines,
“The quality of mercy is not strain'd . . .
. . . it is twice blest;
It blesseth him that gives and him that takes: . . .
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.” (Act IV, Sc. I, 179, 181 – 182, 192-197)

Ultimately she yielded, to allow Shylock the enactment of his specific performance
that is sealed in the bond. However she warned that as per the literal and strict
interpretation a “pound of flesh” was allowed, but for any drop of blood. The nature
of interpretation was contested by Shylock as any “drop of blood” would be an
obvious consequence of his bond. Portia upheld the literal interpretation of the
bond / contract that Shylock unwittingly insisted upon earlier, to be enforced as per
the specific letters, in consonance with the interpretation Shylock insisted to enforce
his bond.

Judicial imbalance
Shylock became an unfortunate victim of ‘judicial overreach’ as Portia went beyond
the legal issue to pass three verdicts: denial of “pound of flesh”, if it doesn’t meet the
conditions, estopping him from the principle amount [monetary compensation] and
application of the alien statute of Venice. The prejudicial nature of Portia is
prominent [merits to go for an appeal in the higher court] and therefore the judicial
deliberation went against the propriety of law while concluding the case. Portia’s
verdict to apply the alien statutory laws of Venice on Shylock is untenable. The case
was merely to decide whether Shylock’s bond can be enforced which she awarded as
per the explicit stipulation. But to adjudicate on Shylock’s intention to wish the
death of Antonio by enforcing the bond and turn the civil suit to a criminal, for
which no grievance was registered by the defendant and which was also not a part
of the court’s legal issue, aggravates the judicial imbalance. Since no cause was
submitted by Antonio, Portia’s decision to extend the ambit of the judgment on
behalf of the defendant points to Portia’s personal interest in the suit. Portia exposed
her conflict of interest that contradicts her neutral conduct as a judge. The
responsibility of a judge, to instil the confidence of impartiality was flouted by Portia
and she brought the Duke’s court in disrepute. Portia’s deliberation went beyond her
responsibility, which the Duke did not accord her and therefore she was failed to be
the competent authority to apply the alien statute of Venice on Shylock.

Fiddling with law

Portia’s judgment plays a mischief on Venetian legal system helping the intellectual
audience feel cathartic. Portia’s judgment in totality, fails to qualify for the original
on many counts: first, it fails to stand the legal test of “being fair and appearing fair”
– by impersonating Balthazar and taking a personal interest involving in Antonio’s
civil suit, evidently attributed because of his proximity with her lover – Bassanio. She
also violated the impartial code of legal ethics. We, however, don’t see Portia lending
her pro-bono services to save any innocent Venetian from persecution, apart from
Antonio. Another deliberation, where she committed grave judicial overreach is to
speak for Antonio when Shylock was subject to the Alien laws of Venice, disrobing
him of his property and financial support, adding to the fact that she also pushed for
his conversion to Christianity, to hammer the ultimate death nail on the inquisitorial
system of the Duke’s court.

Portia is portrayed as fair initially by Shakespeare when Shylock quips, “A Daniel

came to judgment” which was also retorted by Gratiano, “A Daniel, mark Jew”,
when Portia’s deliberation swung to their sides. This can possibly explain
Shakespeare’s method of showing a mirror to his audience on their cognitive biases
supporting a judge when the deliberations swing in their favour. A closer analysis of
Portia’s fair appearance brings a converse truth as it reveals her stand aggravated by
her passionate speech, “Thou shall have more justice that thou deserves” making
apparent the rendering of disproportionate justice. Portia’s play on law is when she
uses her intelligence to save the life of a Christian and argue for the peril of the Jew’s
life. Portia’s justice is disproportionate as it is untempered by judicial restraint but in
fact an arrogance of power to satisfy the majority by saving a Christian, and taking
away everything, but the life of a Jew.

Various social bonds in the play

Various types of bonds are sketched by William Shakespeare in The Merchant of
Venice. The bond here appears to be broader in treatment which also includes a
contract. The bonds include: friends [Antonio and Bassanio], rich heiress and
waiting-maid [Portia and Nerrisa], and father and daughter [Shylock and Jessica],
lovers [Portia and Bassanio; Jessica and Lorrenso]. While the bond of legal contract
between enemies [Shylock and Antonio] is unlike the social bonds that appear
earlier. The social bonds here reflect the love and affection observed as an unwritten
code understood by each other. Interestingly, some bonds are treated by the
characters as more valuable, as in the case of the civil suit with Antonio, when
Bassanio pleads with Portia to be with his friend, and in another scene earlier, where
Jessica runs away with Lorenzo betraying her father’s commands. In the play, two
contrasts work - the depth of long-lasting friendship between friend’s triumph over
Bassanio’s love while conversely Portia’s love triumph over the father daughter
relationship and religious restrictions.

Nature of Shylock’s bond and essentials of a contract

The most fascinating sketch of bond portrayed by Shakespeare is the one with the
legal element – between enemies – Antonio and Shylock. The nature of bond is a
legal contract which in modern day fails to contain the essentials of a contract. The
essentials of a contract must include:
i. Offer and acceptance – Antonio accepted Shylock’s offer to lend 3000
thousand ducats for three months, however, the terms were unilaterally
decided by Shylock;
ii. consideration – payment of the borrowed amount was agreed without
interest, conversely the reward was absent while the detriment was
present explaining the imbalance in consideration;
iii. intention to be bound – Antonio had expressed his consent to be bound to
pay the sum or the penalty and legally seal the bond, but Shylock’s
intention was diabolical in nature;
iv. certainty of terms – payment of 3000 ducats in three months or a pound of
flesh close to the heart, which violates the standard of reasonableness, this
feature of the contract has led to different interpretations asserting the
uncertainty of its enforcement;
 v. capacity and competence of both the parties – both Shylock and Antonio
were legally and mentally sound to enter into the contract, while Antonio
had the financial capacity to repay the promise he rendered; however, his
capacity to give away his pound of flesh was morally and legally unsound;
and
vi. must be in writing – an apparent fact, that the bond was sealed as a notary
in Venice.
Accept the writing condition, all the other elements of Shylock’s contract failed to
stand the test of reasonableness.

Nature of bonds during Venetian times

Did Venice allow such a bond or contract to work? This is a pertinent question that
one needs to investigate, the answer of which will help us understand the hidden
flaws in the legal system. Neiymeyer in his article The Judgement against Shylock in
The Merchant of Venice (1915), affirms such a possibility as during the 13 th, 14th and
15th centuries Germany, Scandinavia and Italy had legally recognised agreements or
contracts between two parties, where one is bound to pledge a part of the body in
exchange for material consideration (12). In fact he also argues that the possibility of
Shakespeare projecting the play as a reflection of his time is plausible because Pope
Sixtus V, as documented by his biographer Gregorio Leti, had arbitrated on a case
involving a Jew and a Merchant, where the Jew at the vacuous height of his emotion
said, “I will wager a pound of my body’s flesh that this thing is true” (13). When the
Jew lost the Merchant took him to Sixtus who rendered the same verdict in favour of
the pound of flesh without an extra ounce of flesh, no less no more. Unlike Portia,
Pope Sixtus however, aimed to teach both the parties a lesson by penalising them
first and later, condemning them to death. The Pope mitigated his sentence and let
them off but sent an example to his jurisdiction to not play mischief or take undue
advantage of someone. Neiymeyer adds that many such narratives came forth before
Shakespeare in the form of stories, to draw inspiration and complicate the juristic
application on social imbalances.

Shylock’s bond and relevance in India

If judged from the perspective of Indian law today which broadly affirms to the
International laws on contract, Shylock’s bond will be treated as invalid or contra
bono mores, similar to other common law countries. A general reading of Shylock’s
bond proves either the ignorance of law among both the parties or betrays the
nefarious design of the promisor against the promisee. One can touch upon the
Indian history not too far to see contracts between two parties that end in a one-
sided vicious contract, like the practice of bonded labour. Pledging the service of
one’s labour and being bound for life for a small sum, was the most gruesome and
cunning agreement Indian moneylenders undertook by fooling gullible people. The
situation, here, is slightly different, unlike Antonio who entered into the contract out
of economic compulsion and emotional provocation, bonded labourers enter purely
due to the economic compulsion for survival. Literary writers like Vijay Tendulkar in
Kamala and Mahasweta Devi in Bitter Soil have documented rich (moneylenders)
exploiting the vulnerable conditions of the poor. Art. 21 (Right to Life) and Art. 23
(abolition of forced labour) of the Constitution of India and the Bonded Labour
System (Abolition) Act, 1976 in India passed 29 years after the independence has
given the legal backing for the prosecution, but certain rural areas where zamindars
(moneylenders) hold an authoritative sway enforce the conditions of bonded labour
even today.

Arguments in favour of interpretation of the text

Certain critics may treat the examination of The Merchant of Venice by objecting to the
application of modern day legal analysis on a play written in the past. There are two
reasons why such an objection is invalid: first, examination of history (including
literary works) helps us appreciate our present better and prepare us to undertake
any precaution for fear of repeating history. As Marx famously cautions posterity
about world historical facts – history repeats, the first time as tragedy, the second
time as farce. It is better to prevent our present being reduced to a farce subjecting
citizens to an unjust society and unfair laws.

Second, to prevent an examination of history or past judgments is not a new concept.

In India, A. D. M. Jabalpur v. Shivkant S. Shukla (1976) is considered as the most
abhorring judgment in the annals of history for suspension of civil liberties. The 1976
judgment was a product of the age because the majority opinion failed to rise up
against the diabolical objectives of the government of the day – tacitly supporting the
validity of Emergency rule. Similarly, laws relating to sedition and homosexuality
during colonial times and its concurrent invocation through judgments post-
independence are also examined today with a clamour for declaring such laws as
unconstitutional. As of today, both these laws stand. Research studies have closely
assessed judgments to examine the value of incorporating works including history,
social science, economics and literature that increases the magnitude of legal
opinions and persuasion value. Texts by George Orwell (1984), Kafka, Shakespeare,
Dickens, etc. carry enormous value as these texts sync with the collective cultural
sentiments of modern day life. The above are few examples to prove the validity of
examining our past through sources – narrative or otherwise and make our society
reduce injustice.

Final points
The legal establishment and society of Venice was patriarchal and discriminatory in
terms of race and sex. Jewish race were discriminated, women were not allowed in
the court, slaves were ill-treated and animals were tortured. Shakespeare’s play
subtly castrated Venetian concept of law and logic using Shylock and Portia. Shylock
uses the Duke’s court to thrash the Venetian establishment that takes sadistic
pleasure in victimising Jews, and considers slaves and animals as inferior. Portia
fools the Duke’s court, and similarly thrashes the mental vacuity of Venetian
establishment and the Elizabethan audience who denied women equal
opportunities. Both by delivering the best evocation silenced the bigotry of society
and men.

To conclude, legal perspectives applied on The Merchant of Venice enable readers to

understand that most legal complaints begin due to injustice, either at individual or
societal level. If it were not for the discrimination of Shylock, Antonio and Venice
would not have seen such a suit. Had woman been allowed to involve in
adjudicating legal matters, Portia would not have impersonated Balthazar.
Throughout the play we see a possible reason for human beings to behave in a
strange way, and that is perhaps, why we need legal counsels – to temper the two
parties and make them face the law. This play perhaps presents the best case study
to understand – what will happen to the parties if they are left unrepresented by
lawyers.
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