A Thousand Times More Fair

What Shakespeare's Plays Teach Us About Justice

Kenji Yoshino

• Publisher: Ecco
• Year: 2011
• Print ISBN:
  9780061769122
• eBook ISBN:
  9780062087720
• Topic: Law
• Subtopic: Ancient & Classical Drama
• Index: Law

"Fascinating....Loaded with perceptive and provocative comments on Shakespeare’s plots, characters, and contemporary analogs." —Justice John Paul Stevens, Supreme Court of the United States

A Thousand Times More Fair is a highly inventive and provocative exploration of ethics and the law that uses the plays of William Shakespeare as a prism through which to view the nature of justice in our contemporary lives.

Celebrated law professor and author Kenji Yoshino delves into ten of the most important works of the Immortal Bard of Avon, offering prescient and thought-provoking discussions of lawyers, property rights, vengeance (legal and otherwise), and restitution that have tremendous significance to the defining events of our times—from the O.J. Simpson trial to Abu Ghraib.

Anyone fascinated by important legal and social issues—as well as fans of Shakespeare-centered bestsellers like Will in the World—will find A Thousand Times More Fair an exceptionally rewarding reading experience.

In this masterwork of literary criticism, Yoshino connects the Bard to our world’s most pressing legal questions:

• A Fresh Look at Shakespeare: Go beyond typical literary analysis and discover how ten of Shakespeare’s most famous plays can illuminate the complexities of our modern legal system. The plays included in the book are:Hamlet, Macbeth, Othello, The Merchant of Venice, The Tempest, King Lear, Henry V, Measure for Measure, Antony and Cleopatra, and Titus Andronicus.
• Landmark Cases, Timeless Tragedies: Explore surprising connections between Othello and the O.J. Simpson trial, Titus Andronicus and the war on terror, and Hamlet and the nature of perfect justice.
• The Nature of Justice: Professor Kenji Yoshino applies his expertise in constitutional law to unpack timeless questions of vengeance, mercy, sovereignty, and what it means to live in a just society.
• Engaging Social Commentary: A must-read for anyone fascinated by the intersection of law and ethics, offering a provocative new lens through which to view the defining events of our time.

Chapter One

The Avenger

Titus Andronicus

Although it put Shakespeare on the map in the 1590s, critics have found The Most Lamentable Romaine Tragedie of Titus Andronicus “lamentable” in more ways than one. T. S. Eliot called it “one of the stupidest and most uninspired plays ever written.” Harold Bloom avers he “can concede no intrinsic value” to the play, while suggesting that “perhaps it could be yet made into a musical.” Others have argued that the play was not written by Shakespeare, that Shakespeare “touched up” another playwright’s work, or that Shakespeare penned it when he was young and needed the money. While most critics now admit Shakespeare composed it (with coauthor George Peele), Titus remains the “black sheep” of the Bard’s canon.

While I come to defend the play, I understand why others abhor it. Over its course, the Goth prince Alarbus is sacrificed to the gods, the Roman general Titus’s son Mutius is stabbed to death, the Roman prince Bassianus is murdered, Titus’s daughter Lavinia is raped and mutilated, Titus’s sons Quintus and Martius are decapitated, the Goths Demetrius and Chiron are murdered and their heads are baked into a pie, their mother Tamora is served the pie before being killed, Lavinia is killed, Titus is killed, the Roman emperor Saturninus is killed, and the Goth Aaron is buried alive. When Peter Brook directed this play in 1955, he had an ambulance waiting to shuttle audience members to the hospital. Sir Laurence Olivier, who played Titus, said at least three audience members fainted every evening.

For such a lurid work, Titus riveted the audiences of Shakespeare’s day. In 1594, Titus was a blockbuster success, and, as critic Jonathan Bate opines, “perhaps did more than any other play to establish its author’s reputation as a dramatist.” Critics explain away the play’s commercial success by sniffing that Titus played to the popular taste for guts and gore, just as public executions and bear-baiting did. Coleridge writes that Titus was “obviously intended to excite vulgar audiences by its scenes of blood and horror.” That view of Titus rose to the fore in the nineteenth century, when Titus was either not performed or aggressively bowdlerized.

Yet Titus is not Shakespeare’s version of a present-day slasher film. It carries a serious message about the necessity of the rule of law. Shakespeare lived in a time without an effective police force, meaning that individuals who suffered harm had to choose whether to trust a weak state or take justice into their own hands. This put individuals in a terrible position. The natural—even rational—impulse was to turn vigilante. As modern scholars have shown, the blood feud is a common pre-modern form of justice found in societies as diverse as Iceland, the Balkans, and Italy. Yet the danger of the feud is that it inevitably escalates, eventually threatening the entire society. The only solution is to impose the rule of law, which includes giving the state a monopoly over the function of punishment. As Justice Oliver Wendell Holmes once said: “It is commonly known that the early forms of legal procedure were grounded in vengeance. Modern writers have thought that the Roman law started from the blood feud, and all the authorities agree that the German law begun in that way.” Titus is a cautionary tale for how the rule of law must quash cycles of vengeance that would otherwise destroy society.

Recent decades have seen a revival of interest in the original, unexpurgated play. Every time a major production has been staged, it has been a runaway hit. As Bate observes: “Peter Brook’s production with Laurence Olivier as Titus was one of the great theatrical experiences of the 1950s and Deborah Warner’s with Brian Cox was the most highly acclaimed Shakespearean production of the 1980s.” More recently, Julie Taymor’s 1999 film Titus with Anthony Hopkins in the lead role has earned critical acclaim.

Our opinion of Titus, then, seems more Elizabethan than Victorian. When I ask why this play, why now, the answer is disturbingly clear. Our times are more like Shakespeare’s along a crucial dimension: the fragility of the rule of law. The beginning of a fully globalized society without an overarching government puts us in the same position as Shakespeare’s contemporaries. If terrorists fly planes into our buildings, we must decide whether to submit to the judgments of a weak international authority or to engage in self-help. Again, the natural impulse is to act unilaterally. But as we are coming to see, surrendering to that impulse ends in catastrophe.

It may seem fanciful to use one of Shakespeare’s most obscure plays to illuminate one of our most familiar crises—our wars in Afghanistan and Iraq. But Titus reveals something new about these wars, which is that they are not truly wars, but vendettas. The post-modern war on terror is more like the pre-modern blood feud than either is like a conventional war. For this reason, Titus is not immature. It is inaugural.

Titus stages an Elizabethan anxiety about how quickly private vengeance can become unmanageable if the law does not contain it. Revenge never just evens the odds, but leads to retaliation. That retaliation triggers counter-retaliation. The mounting tit-for-tat soon becomes a full-fledged blood feud between clans. In the play, the original sacrifice of Alarbus, the Goth prince, by Titus, the Roman general, begins a cycle of violence that eventually engulfs all Goths and Romans.

Like us, Shakespeare’s contemporaries were ambivalent about private vengeance. On the one hand, they lived in a society without a real police force or standing army. “Wild justice,” as Sir Francis Bacon called revenge in a famous essay, was often the only kind available. The early moderns also viewed the revenge instinct to be natural. The Old Testament lex talionis (literally “law of retaliation”) permitted, and perhaps required, such vengeance: “And if any mischief follow, then thou shalt give life for life, / Eye for eye, tooth for tooth, hand for hand, foot for foot / Burning for burning, wound for wound, stripe for stripe.”

On the other hand, Elizabethans feared the way individual quarrels could spiral into blood feuds. The literary scholar Fredson Bowers writes that “private quarrels between two or three persons not infrequently spread to whole families and ended in great hurt and bloodshed.” This escalation was particularly common among noble families, who held their honor dear: James I described “factions and deadly feuds” as “the motives of greate mischief in greate families.”

The “deadly feuds” were sufficiently numerous that one can provide instances without straying from the author of the play. One Shakespeare biographer believes the feud between the Montagues and the Capulets in Romeo and Juliet may have been based on the feud between the Long and Danvers families. The Long-Danvers feud, which dated back to the Wars of the Roses but had for some time subsided, reignited in 1594 when Sir John Danvers, a magistrate, convicted a servant of Sir Walter Long of robbery. (In Romeo and Juliet, a scuffle among servants rekindles hostilities.) After Sir Walter rescued the servant, Sir John put the master himself in Fleet Prison. Upon Sir Walter’s release, a series of brawls erupted. Sir Walter’s brother Henry wrote abusive letters to Sir John’s son Charles, informing him that “wheresoever he mett him he would untie his pointes and whippe his etc. with a rodd, calling him asse, puppie, foole & boye.” Charles Danvers and his brother then accosted Henry and Walter Long as they dined in an inn. Charles attacked Henry with a truncheon; Henry retaliated with his sword. Charles’s brother then drew his pistol and shot Henry dead. No legal repercussions ensued—through the good offices of Henry Wriothseley, Earl of Southampton, the Danvers brothers were ushered out of the country. Shakespeare would almost certainly have been familiar with these events. Southampton is the dedicatee of Shakespeare’s Venus and Adonis and The Rape of Lucrece and is widely believed to be the dedicatee (“the only begetter of these ensuing sonnets Mr. W.H.”) of the sonnets.

To prevent such feuds, Christian moralists in early modern England urged people to transcend vengeful impulses. Writing in 1609, the pamphleteer Daniel Tuvil proclaimed: “Ierusalem is new erected; among her Citizens there is now no thirsting for reuenge. The law of retribution is disnuld amongst them. . . . An eie no longer for an eie: a tooth no longer for a tooth.” As Tuvil’s reference to the new Jerusalem suggests, the Old Testament lex talionis gave way to New Testament mercy. The passage in Exodus ceded to one in Romans: “Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, ‘Vengeance is mine; I will repay, saith the Lord.’ ” Human beings were meant to stay their hands because God would avenge their wrongs. Bowers notes that for Catholics and Protestants alike “in the God-fearing Elizabethan age, [religion] exercised a force second to none in the constant war against the private lawlessness of the times.”

The catch was that God’s punishment, while certain, was often slow. Lest individuals tire of waiting, retribution was also permitted to God’s agents on Earth, including the sovereign and—critically—the courts of law. The Statute of Marlbridge (1257) secured the same power for the courts as the New Testament secured for God. The statute ordained that “none from henceforth shall take any such revenge or distress of his own authority without award of our Court.” This was seen less as an alternative to divine authority than a delegation of it. As Susan Jacoby writes: “The moral hierarchy was clear: God’s just revenge (sometimes too slow to suit human beings but always certain); public revenge permitted to God’s authorized representatives on earth (whether embodied in capital punishment, torture, or a ‘just war’); private revenge forbidden to kings and commoners alike.”

Delegating divine retribution to legal agents, however, was an imperfect solution, as the law could fail to provide adequate redress. In such situations, injured parties were pressed back to the original dilemma of whether to turn the other cheek or take justice into their own hands. Titus is representative of Elizabethan revenge tragedy in depicting “wild justice” as the natural choice, but one that necessarily dooms the avenger and his society.

Titus begins with the Roman general Titus Andronicus returning in triumph from his war against the Goths. During his ten-year campaign, he has lost all but four of his twenty-five sons. Yet he has now won a final victory, as evidenced by his prisoners—Tamora (Queen of the Goths), her three sons, and the Moor Aaron, who is Tamora’s servant and, we later learn, her lover.

As Titus inters his dead sons in the family tomb, his eldest surviving son, Lucius, reminds him to make a human sacrifice:

Give us the proudest prisoner of the Goths,

That we may hew his limbs and on a pile

Ad manes fratrum sacrifice his flesh

Before this earthly prison of their bones,

That so the shadows be not unappeased,

Nor we disturbed with prodigies on earth.

(1.1.99–104)

The sacrifice is to be made ad manes fratrum—“to the shades of our brothers”—to keep them from disturbing the Romans with “prodigies,” or supernatural calamities.

Titus accordingly offers up Prince Alarbus, the highest-born Goth male among the prisoners of war. Tamora kneels and begs for her son’s life:

Stay, Roman brethren, gracious conqueror,

Victorious Titus, rue the tears I shed,

A mother’s tears in passion for her son!

And i...

Table of contents

• Cover
• Title Page
• Dedication
• Contents
• Introduction
• Chapter One
• Chapter Two
• Chapter Three
• Chapter Four
• Chapter Five
• Chapter Six
• Chapter Seven
• Chapter Eight
• Chapter Nine
• Epilogue
• Acknowledgments
• Notes
• Bibliography
• About the Author
• Also by the Author
• Credits
• Copyright
• About the Publisher