“The first thing we do, let’s kill all the lawyers.” When people gleefully quote that line from Shakespeare, or print it on T-shirts, they might not realize that the playwright actually showed a deep and abiding interest in the law. Lawyers have returned the favor, citing and debating points made by Shakespeare or his characters in court, in articles, and in judicial opinions.
To this day, humanitarian lawyers cite the English rage over the French slaughter of unarmed English boys in “Henry V” as an important instance of how moral norms exist even during brutal combat. The entire plot of “The Merchant of Venice” hinges on a breach-of-contract dispute, with Shylock demanding cruel justice when a loan he makes goes unpaid. Portia, who presides over the trial Shylock instigates, gives a speech about tempering the letter of law with mercy that is a touchstone for contemporary jurists.
Since 2001, Daniel Kelly, a partner at the Boston law firm McCarter & English, has overseen an annual event, “Shakespeare and the Law,” aimed at unlocking what Shakespeare can teach us about legal thinking, and how the legal themes of the plays illuminate current events. Kelly is also an adjunct faculty member at Suffolk University, which hosted the event this year, and an avid amateur actor who frequently plays Shakespearean characters in local theater. As the chairman of the Boston lawyers’ chapter of the Federalist Society, a conservative group, Kelly was searching for ways to bring together liberals and conservatives to debate the big legal issues of the day. Who better to serve as a lure than the Bard?
The event he concocted, with the assistance of the Commonwealth Shakespeare Company, has drawn national and local legal and political eminences to perform staged readings of plays and discuss their legal themes. For this year’s session, held Jan. 17, C. Boyden Gray, White House counsel to President George H.W. Bush, served as host and moderator; among the panelists and performers were the federal judges Nathaniel M. Gorton, Dennis Saylor IV, Douglas P. Woodlock, and Rya W. Zobel, and the retired federal judge (now Harvard professor) Nancy Gertner, who played King Richard II.
Kelly spoke with Ideas from his office in Boston. This interview has been condensed and edited.
IDEAS: The famous line “Let’s kill all the lawyers” is deeply unrepresentative of Shakespeare’s view of the law, isn’t it?
KELLY: The line is ironic, because it’s spoken by scoundrels. The character is essentially saying that before we can actually usurp power, we’ve got to undermine the rule of law. So it’s demonstrating respect for law.
IDEAS: This year your topic was “‘Richard II’ and the Limits of Executive Power.” The main tension in that play is between the king’s conception of his own power—he seems to believe in the old divine right of kings—and the beliefs of his subjects, who think he is more constrained than that.
KELLY: The Magna Carta said you can’t tax the people without the permission of the royal council, [which later] morphed into the Parliament. There were certain separation-of-power principles, some of which included prohibitions on excessive taxation, prohibitions on prosecuting war without the permission of the council, laws of inheritance, the right to a trial by jury. Richard’s view was that he did not have to consult with Parliament.
IDEAS: You see some direct connections between Richard II and presidential overreach today?
KELLY: For [President] Obama, there’s a whole litany of things that he’s done which people believe are beyond the powers of a president—for instance, the Dodd-Frank legislation, which is quite vague. Under the framework of that legislation, there are a number of agencies now which are promulgating hundreds of thousands of pages of regulation on the banking industry, none of which are specifically addressed in the legislation. And that’s something that is in the purview of Congress. There’s the executive order essentially instituting the Dream Act, which gave certain rights to children of illegal immigrants.
IDEAS: There were liberals on your panel. Did they talk about George W. Bush’s push to war?
KELLY: You have factions within the country always complaining about improper exercise of executive power depending upon whose ox is being gored. So during the Bush administration there were a lot of people complaining about Bush exceeding his powers as commander in chief when he was making these foreign wars and everything associated with them....
You also had people on the other side of the political spectrum talking about the gridlock in Congress and the polarization right now of the political parties, which has essentially made Congress impotent and is the root cause for Obama exercising the power that he has.
IDEAS: You once did a forum on “Measure for Measure,” which is all about the tension between the letter and the spirit of the law. In the absence of a duke, there’s a surrogate who starts enforcing laws that have never been enforced but that are on the books—like the death penalty for premarital sex.
KELLY: Right. [laughs] In that one, we were looking at what it means to be a good judge. A judge has to balance the interests of strict enforcement of the law with equity.
Since the Reagan administration, a complex set of guidelines and mandatory minimums have been imposed on judges on the federal bench, where they had certain restrictions depending on the circumstances of the crime, the history of the criminal defendant, the circumstances, and lots of other factors. So they were constrained in making sentencing determinations, and a lot of judges—including Nancy Gertner, when she was on the bench—thought that this resulted in absurd sentences, and that their power as a judge should have permitted them to have flexibility. Those sentencing guidelines were eventually found to be unconstitutional for those very reasons.
IDEAS: You’ve also done “The Merchant of Venice.” Where do you fall in the great Shylock debate? Most people view the character as a villain, or at least an anti-Semitic caricature, demanding a literal pound of flesh for an unpaid loan. But there are a few people who say that as a despised outsider he has to rely on the protection of the law—that judicial discretion opens the door to discrimination.
KELLY: I actually think Shylock had a case. I think there are a lot of bad things that happen to Shylock during that play and during the trial itself. The first and best example is that the judge [Portia] is not a judge at all but the lover of the guy who is responsible for Shylock loaning the money to Antonio. [She disguises herself.]...Portia was clearly biased
She has a very beautiful speech about the principles of mercy being used in the courtroom, yet what happens to Shylock is that he not only loses his case, but he is forced to pay half of all of his goods to the state, the other half to Antonio, and to convert to Christianity. The case starts out as a civil case by Shylock against Antonio and ends up as a criminal prosecution of Shylock for the attempted murder of Antonio. Obviously he had no due process.
IDEAS: When considering equity, I guess prosecutorial discretion comes into play.
KELLY: One of our regular participants has been [Boston attorney] Harvey Silverglate. He was our original Shylock in “Merchant of Venice” and has been involved in many of the plays. He wrote a book called “Three Felonies a Day,” and the principal thesis of that book is that there are enough laws on the books today where the federal government can indict any person that it wants, and there is an arbitrariness to the way in which the federal government makes decisions about who they are going to prosecute.
IDEAS: In your actual legal practice, when do you find yourself thinking about Shakespeare the most?