A Symposium Issue on "The Merchant of Venice" || Shylock and Debt and Contract in "The Merchant of Venice"

Cardozo School of Law

Shylock and Debt and Contract in "The Merchant of Venice"Author(s): Charles SpinosaSource: Cardozo Studies in Law and Literature, Vol. 5, No. 1, A Symposium Issue on "TheMerchant of Venice" (Spring, 1993), pp. 65-85Published by: Taylor & Francis, Ltd. on behalf of Cardozo School of LawStable URL: http://www.jstor.org/stable/743393 .

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Shylock and Debt and Contract in

"'The Merchant of Venice" Charles Spinosa

Although the case on the trial scene in The Merchant of Venice has been closed for some years now, this essay' seeks to reopen it and, at the same time, to renew the possibility of legalist-literary thinking about Shakespeare. This will require challenging both the current legalist-literary consensus on Merchant and the legalist-literary method of relating the common law to Shakespeare's plays.

Today's near-consensus view on the trial scene in Merchant holds that it dramatizes the struggle for supremacy between the exacting, literalist, common-law courts and the more sophisticated, broad-minded, interpretive, equitable Court of Chancery. Although these courts got on rather well at the time Shakespeare was working on Merchant,2 this consensus view claims that either his own legal interests or Throckmorton v. Fincb (1598) suggested to Shakespeare that the two methods of jurisprudence would have to come into conflict. This recognition led to a Merchant that accurately anticipated not only the struggle between the common-law courts and the Court of Chancery but also the conclusion of that struggle that equity and the equitable right of redemption would take precedence over the narrow common law and its strict reading of bonds and contracts.3

Moreover, since the consensus legalist view finds Shylock gravitating toward common-law literalism (rightly or wrongly) and Portia toward equitable conscience (rightly or wrongly), this legalist characterization of the play fits snugly with the near-consensus literary view that sees Shylock as standing for a hard-working, vengeful, literalist, computational mechanism and the Venetians along with Portia as representing a festive, graceful, generous, loving, interpretive vitality.4

But the current legalist view is itself deficient in that it focuses almost exclusively on the play's technical legal representations - the terms of the bond, the trial scene, the alien statute, the use - and fails

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to concern itself with how legal change is motivated by, and only comprehensible in terms of, broader changes in social practices. So instead of following the conventional legalist-literary method of trying to capture how Shakespeare manipulates his supposed technical legal knowledge, my approach will assume that Shakespeare and the common lawyers were drawn to respond to particular changes in social practicess5 and that these changes appeared in late-Elizabethan culture most clearly with legal inflections. Since Merchant focuses on legal obligation, this essay will examine Merchant in terms of the monumental changes in the understanding of the law of obligation that culminated in Slade's Case (1597-1602). I will, first, argue that Slade's Case determines which of two forms of life - the customary or the contractual - would be recognized by legal institutions. Then I will touch on how the Venetians operate in the intentionalist manner presupposed in our modern, contractualist understanding of human activity. But my main concern will not be the Venetians, today. Rather, I will focus primarily on how Shylock may be understood in terms implied by the argument for the customary form of life. Last, I will say a few words about how Portia's trial-scene distinctions function in the debate between the two forms of life and about how both the lawyers and the play handle Portia and the possibilities she represents.6

I. Slade's Case and the Customary Law of Debt

In 1595 John Slade brought against Humphrey Morley a bill that claimed Morley had deceitfully refused to follow through on an undertaking, called an assumpsit.7 The jurors returned a special verdict. Morley, the jurors found, had purchased the harvest of a field from Slade for ?16 payable on the Feast Day of St. John the Baptist, a customary day of payment, and the ?16 were never paid. Nor was the field harvested. Additionally, the jurors said that the transaction between Slade and Morley amounted to no more than a customary bargain and sale, an informal kind of transaction. The judges, therefore, had to determine if such a customary transaction spoken in thoroughly customary words included an assumpsit, in this case, an endeavor in the form of a parole promise. The decision of the judges for Slade, that there was such a promise, is still with us today. Indeed, this case has determined our way of living so completely that we find it almost impossible to think that matters could be otherwise. If we purchase a cup of coffee unthinkingly in the midst of other on-going activity, we imagine that on our offering to pay, no matter which specific words or signs we use, the vendor owes us the coffee. His promise is implicit in the activity. If the vendor just kept our money as

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a gift, we would feel cheated and deceived. Now, to return to Slade's Case, how could someone make a deal to pay at some future date and not also make a promise to pay? Our contractualism seems so natural to us that it comes as a surprise to learn that the triumph of the assumpsit contract came at the expense of a different, well- entrenched, customary law of obligation and quite different everyday practices that supported it.

The justices of the common-law courts and the barons of the Exchequer who decided Slade's Case were, however, well aware that two culturally determinative practices were clashing and that a decision for the plaintiff meant the extinction of cherished customary practices. From the 1570s, the two main courts of common law, the progressive King's Bench and the conservative Common Pleas, had skirmished over this issue, and if this were not enough to clarify the stakes, Edward Coke (then Attorney General) had been engaged to argue for the plaintiff and (the stellar) Francis Bacon for the defendant.

To make sense of what was at stake in the case and of Coke's victory, we shall first have to get a clear view of the law of debt and the practices to which it applied. The action of debt8 focused on things and not intentions. A debtor had in his possession something that belonged to the creditor. Most commonly this would be something a purchaser bought and expected to have delivered. But it could be a loan the creditor expected to have repaid. That a thing of specific value or money had been exchanged was crucial to this action. Mutual promises could not give rise to an action of debt. Also, the action was wholly recuperative. If a claimant won, the thing or its price at the time of purchase would be returned, with the option left to the defendant. No damages were assessed. The law did not concern itself with inflation. The idea was to put things back where they belonged.

Yet what separates debt most radically from any current practice, except perhaps some informal transactions among friends, is that defendants had the right, in most instances, to trial by compurgation. Compurgation or the wager of law consisted in the defendant swearing an oath that he was not indebted and providing eleven oath helpers who would swear that his oath was credible. Originally, the eleven oath helpers had to be neighbors, but by the latter part of the sixteenth century they were simply hired for the purpose. This practice must give us pause. Coke condemned it for the same reasons we would now. With this form of trial, he argued, men would contract debts that they never intended to repay, knowing that simple perjury would cancel all liability. While we imagine that this deceit must have been as old as compurgation itself, even Coke felt

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compelled to acknowledge that such perjuries had only recently become pervasive.9

Cases of breakdown in compurgation different from those Coke mentioned start showing up in the printed law reports in 1587. The defendants in these cases would initially choose to wage their law and then have second thoughts and ask advice of the court. In each case, they would spell out the details of the transaction that produced the debt and request that the court determine if they could, in conscience, wage their law. One defendant explained in 1587 that he had regularly purchased dye with the understanding that if it did not work, he would not have to pay for it. In this case, the dye failed, so, he wondered, if he could wage his law.'0 Another defendant claimed that he had owed the plaintiff a sum of money, but just after contracting the debt, he convinced a third party to give the plaintiff a valuable horse. Was this, he wondered, sufficient to clear his conscience of the debt?" In 1588, a defendant told the court that the plaintiff had accepted a lesser sum for the total amount owed. Two very similar cases were heard in 1588 and 1590. Here the defendants claimed that they had met with the plaintiffs and had come to agreements about mutually offsetting debts. The point of these cases,12 however, is that, prior to the breakdown in the 1580s, all sorts of activities could count as satisfying debts. Englishmen did not act on well-known rules; rather, each locality had, at bottom, vague customary practices into which people were inculcated and according to which they acted.

This is a very hard claim for us to swallow. How could people enter into debts and clear them without even implicitly clear understandings of what amounted to creating and discharging debts? What picture of everyday life can make sense of this claim of an invincible vagueness in such transactions? Since our current culture has accepted the post-Slade's Case notion that our actions implicitly have clear and determinate intentions, an intuitively compelling model for activity with indeterminate intentions will have to be developed. Since such activities are, at best marginal for us, an anecdote will have to serve.13

Some time ago I agreed to help an undergraduate, who served me coffee at a local coffee shop. I helped him with an essay for his English class. We worked together for about three-quarters of an hour with basic composition and then chatted a bit about his college career; he gave me a free coffee and went back to work. Afterwards, our conversations took on a more friendly tone, and I found myself receiving free and discounted cups of coffee. He clearly felt some sense of debt but nothing that could easily be cashed out. I felt only the slightest sense of being a creditor. The whole transaction, so far as it had terms at all, seemed more like part of a friendship than a

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business arrangement. It had about it an invincible tentativeness and vagueness. The general point here is that in small traditional communities, where everyone has deep but changing relations with everyone else, business transactions would have the texture of the transaction in this anecdote. The only way to get rid of the vagueness would be to change the nature of these transactions.

If we think in terms of the vagueness of the transaction in the anecdote, we can see why encouraging a friend to give a gift to one's creditor might clear one's debt. So might helping a creditor's servant. In certain localities, simply not having the resources to pay the debt might clear it. The possibilities would be varied, inconsistent, and endless. And no one could be expected to know them. Of course, when practices began to change and clarity of intention in all financial dealings became the norm, then defendants who lived in the old, everyday style would reveal that they were having difficulty getting clear about what precisely would quit a debt. This accounts for the breakdown cases of the 1580s. But before then, when the practices of debt were in full-bloom, the only person in a position to know if he or she had quitted the debt would be the debtor, the defendant. So a method would have to be found for throwing defendants back on their consciences.

To see why wager of law should work to disclose a conscience, consider a culture where prices and terms of simple customary transactions grow out of a sense of the relationship the vendor and purchaser are developing, where, in fact, one sells in order to develop relationships and an identity within a local community. This will be a culture dedicated to getting things done through the warmth of familiar associations, friendships, loyalties and even, we must assume, enmities. Results are understood in terms of developments in the sense of warmth, not in terms of amounts of goods exchanged. Thinking back to the coffee-shop anecdote should help here. If something goes wrong in such a setting, asking the defendant to say, before eminent representatives of community, whether he believes himself indebted ought to be enough to find the truth. For, first, what resources would he have and, second, what would it mean for him to lie? To take up the matter of resources first, for our traditional person to lie would entail his going through a reconstruction of the transaction in order to evaluate it in some sort of generic or, as we say, "objective" terms and then mischaracterizing this evaluation. But these are the skills of an intentionalizing life, one that can abstract itself away from the feelings of a life lived by developing relationships. For the common individual in a community based upon building up such relationships, stepping so far out of the community into some generic, objective realm would be impossible. No such realm would

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exist for this individual. His or her common response to the courtroom opportunity of determining whether he or she was indebted would be to speak directly out of his or her sense of things. No intermediate step of determining his or her sense of things from an abstract or distanced perspective would intervene. I am fairly sure that this is how the undergraduate would have responded if one day I had told him that he owed me ten more free coffees. This is how we respond when caught up in such practices. We just say what we believe. Considering our response also enables us to answer the question of what it would mean to lie in such a setting. In speaking directly from his feel of the situation, the undergraduate would not speak solely from that sense of things that constituted the initial favor but also from his sense of the whole relationship and its possible future. And his answer would count far more as determining how the relationship should go than as attempting to represent the amount of debt. His answer would, therefore, be in the nature of a performative. And, as a technical matter, lying has little meaning here.

But the form of life that understood its everyday financial transactions as a matter of skillful performance came under stress in the 1580s and was finally devastated by the ethos of assumpsit in Slade's Case. What, however, was assumpsit? Assumpsit lay rooted in the law of wrongs, misdeeds that went beyond customary activity and that were therefore understood as intentional. These trespasses were tried by jury and damages were awarded. However, unlike most other torts, assumpsit required a special ad hoc writ called an action on the case. These writs were for wrongs that would only be wrongs in particular contexts. But by the beginning of the 1530s, plaintiffs had begun using ad hoc assumpsit writs where debt would normally have lain. The gist, in these claims, was that the defendant had deceitfully enticed the plaintiff to rely on the defendant to the plaintiffs injury. But the enticement in these early actions had always to be different from the original bargain and sale.

Slowly, as cases proliferated, the difference between a failure in the bargain and sale and a failure in a separate or collateral undertaking became harder to see. And the courts were hard pressed to maintain the distinction. By 1602, Bacon's effort to sustain the distinction against Coke's precedent cases was nothing less than valiant. Normally, there would be no assumpsit, but if the buyer and seller agree, Bacon argued, on the precise kind of coins in which the item is to be paid for, then a separate assumpsit exists. Again, purchasing a horse is just a bargain and sale, but purchasing a horse with the requirement that it be broken and field ready implies a collateral assumpsit. If the place of payment is stipulated, then that itself is a separate assumpsit, "for," as Bacon says, "in writ of debt the

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plaintiff shall recover the money, but [not] the place."'4 Again, if the money is to be paid over a period of several days, then, this, too implies some promise or endeavor distinguishable from the simple sale. We see that the reasoning here is obviously strained.

Consequently, we want to know, Why should Bacon and the Court of Common Pleas resist the new assumpsit contract and its form of life with such urgency? To see why, we shall have to look at how a typical ad hoc writ and case works. The picture is clearer if we take one that is not an assumpsit but works as an assumpsit would.

Suppose a man brings an unbroken horse onto the same thoroughfare his father and his father before him brought their unbroken horses onto on the way to market. He does this in a

thoroughly customary way. In simply responding to the flow of life in his stable and in his community, he feels solicited by the readiness of the horse to bring it to market." Now, while leading the horse along, it bolts and, though the owner does everything he can to control it, the horse injures a passerby.16 Before the advent of actions on the case, the unlucky passerby could only sue out a writ of battery. But since it was not the owner's fault that the horse bolted and since he tried to control it, a jury would probably find no fault in him. An action on the case turns the situation around. In an action on the case, the writ would claim that the horse owner knowingly took the unbroken horse out onto the street, knowing also that the street would be crowded, and knowing that under such conditions he could not control the horse well enough to prevent an injury. Now, the whole matter would have a different look to the jury, and if the facts roughly corresponded to those in the writ, the defendant would be found guilty. But in this process, the defendant has been transformed from someone who simply goes along with the flow of life in his community to a knowing subject who intentionally7 notes the aspects of his neighborhood and, with the same intentional clarity, plans his actions.

As this new understanding gains ground, the contour of the practices of daily life would have to take on a new visibility. Common customary ways in which people behaved with each other would come to appear as particular undertakings, assumpsits. Inexplicit expectations of others would become particular reliances; and when, for instance, A's expectations of, now reliances on, B failed, then B would be seen as having deceived A. A may be said to have relied on B to A's injury. It is precisely this kind of deceit or injurious reliance that is the basis of an assumpsit claim and of the modern contract. Where before people worked together to build relations in an indeterminate, habitual, and quiet way, now a new, self-conscious chattiness would be encouraged to appear so each could express his expectations to the

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other explicitly as a matter of determinate knowledge. (How else would suits be avoided?) Deepening mutual trust and care could no longer be a matter of simply working and walking together. Oaths and promises would be required. Also a sense of loss of integrity would be felt. For chattiness's drive to explicate could never match the indubitable confidence that skillful competence would have in making things happen by developing relationships.

Bacon and the Court of Common Pleas took its stand for the older, customary form of life. But Bacon and the Common-Pleas judges thought that this was also a stand for reason. Reason, Bacon thought, permeated English custom. Debt transactions were a part of customary English life, and actions of debt were the long-accepted writs to use when debt transactions went bad. It was reasonable that the standard writ ought to be used in the standard case. Only in extraordinary cases ought an assumpsit writ be used, since it was designed for the extraordinary. Walmesley, one of the Common-Pleas justices, likewise argued from the standpoint of reason. He claimed that it was against reason to treat a person who had no money as though he were attempting to deceive a creditor. Having no money in the pocket does not equal having deceit in the heart.

Coke developed two arguments against this reason. The argument against Bacon had a vicious, logic-splicing flavor to it. The argument against Walmesley was more general. In arguing against Bacon, Coke recalled how Bacon had claimed that past assumpsits had always had special circumstances marking them off from the standard cases of debt. Bacon distinguished money from particular coins, a horse from a broken horse, a payment here and now from one to be made later at a stipulated place, and finally a payment now from one paid over the course of a few days. To this Coke acidly retorted:

Without question it is not the place or the distraction of days which makes the deceit, but the non- performance of the contract. And if action on the case will lie where the money is to be paid at twenty several days, for the same reason it will lie if it be to be paid at six days, and for a like reason if it be payable at four or two days. And what diversity can be put as to the maintenance of this action, whether the money be payable at two days or one?s8

In short, for Coke no simple customary bargain and sale could exist. Such a thing would be beyond circumstance and beyond division. Whatever the particular circumstances of any transaction, those circumstances would have to be recognized and taken into account by

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the participants. The circumstance of a payment due right away would be no less recognizable, no less a matter of explicit intention, than a payment due in a day. So both ought to serve equally to ground an action for not following through on the endeavor to pay.

Coke did not stop with this destruction of Bacon's reason. Against Walmesley, he went on to elaborate a picture of the law that was practical, not reasonable. For Coke, reason did not primarily rule the law or the courts. The practices of Englishmen ruled, and these practices were embodied in precedents. Reason had always to accord itself with the practices of the common law, and not the reverse. For Coke, then, the practices of his nation were the ultimate determination of right and wrong - at least within this sublunary world - and the court's job was to explicate and promote these practices.19

But what are we to make of this peculiar intermixture of arguments? We have Bacon arguing for the customary by claiming that it is inherently reasonable. Along the same lines, Coke argues for the new contractual, intentionalist way of seeing things by using a kind of hyper-rational logic-chopping that asserts that in the normal course of affairs all circumstances are attended to with clear intentions available to reason. But then Coke turns around and claims that the law, after all, is based solely on a practice - not a reason - that permeates human activities whether they are intentional or not. When we look at Merchant in terms of the social practices underlying the case, it shows us how to make sense of this admixture of arguments.

II. The Merchant of Venice

The Merchant of Venice draws on the basic issues in Slade's Case by hearkening to the conflict between the same social practices, those of a customary life and those of a contractual life. But Merchant reveals these practices with much more precision and shows that what allows the contractual practices to supplant the customary ones is a distinct and independent third set of social practices ultimately suppressed in the case. This third set of practices becomes clear in Portia's mode of activity.

A. The Venetians and Contractual Culture

Since I announced that I will focus mostly on Shylock and customary culture, I will treat the Venetians and their contractual culture in a rather cursory fashion as a contrast class to help us understand our relations with Shylock. To put matters succinctly, if we imagine how the man who took his unbroken horse to market adjusted his behavior after losing the action-on-the-case suit against

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him, our imaginings are fleshed out by the Venetians and Venetian world Shakespeare portrays. By this I mean that they have developed a chattiness that makes all expectations explicit. Indeed, their whole conduct and way of speaking is guided by a sort of dramatizing, often self-dramatizing, that goes to this end of making their intentions clear. In talking, they imagine themselves or another in a generic dramatic situation. They, then, characterize the stock intentions of a person in such a generic dramatic situation and finally choose whether to act on such stock intentions or others. They have precisely the skill that the customary form of life does not have. They are able to abstract themselves from their customary tendencies in order to evaluate and judge their intentions. This means of thinking characterizes Solanio and Salerio's famous speeches at the beginning when they are trying to figure out why Antonio is sad. They imagine him, as you may recall, as nervous merchant who cannot walk by a stone church without thinking of his ships crashing against rocks. He cannot see an hourglass without thinking of his ships foundering in shoals, and he cannot blow on his soup without imagining and fearing a storm at sea.20 Antonio uses the same form of speech when he writes Bassanio to ask him to come to trial. There Antonio writes as someone on a deathbed instead of someone in need of money and a legal defense. (III,ii,314-320) The best example, though, of this form of thinking shows up as governing Bassanio's choice of the correct casket.

Unlike Morocco and Arragon who try to decide which casket to choose by puzzling out the meanings of the inscriptions and the metal, Bassanio imagines himself being tortured and seeking clues from his torturer for what he ought to say. (III,ii,25-39) With this self- dramatization, he makes himself aware that he is playing a role where he is apt to seek clues, and from this perspective, he can ask what goes wrong with people in such situations. The answer is that such people are deceived with what they find appealing. "The world is still deceiv'd with ornament." (III,ii,74) This sounds much like what Arragon had concluded. But Bassanio understands this claim in a different register. He does not assume that his wisdom will save him. Even the wisest of stock characters are susceptible to being entrapped by ornament. (III,ii,98-101) Knowing then that he is nothing more than a generic character ready to be tricked as many have been before (I,i,172) and knowing that he finds the lead unappealing, (III,ii,104- 105) he can see from his abstract distance from himself that he should choose the lead. The Venetians' self-distancing, self-dramatizing style enables him to choose against the grain of his desires. Such a means of becoming sensitive to his own intentions and how others might see them is precisely the inner discipline necessary for a contractual culture where each person relies upon the intentions

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of others. The world of inner interrogations, perhaps even of streams of consciousness, is as much Bassanio's as ours. Shylock inhabits, however, an earlier world, and I will take more time with his kind of customary life.

B. Shylock and the Skillful, Competent Form of Life

The scene where Shylock is introduced (III,iii,) starts with

Shylock repeating the terms of the loan to Bassanio's growing impatience. Then in one of Shylock's putatively typical calculative and

computational moments, he asks Bassanio if Antonio is good, and to Bassanio's misunderstanding of the question, he explains that by good he means a good credit risk and goes on to show how he determines that, by ticking off all of Antonio's high-risk ventures along with the risks. (I,iii,15-23) Shylock reviews in greater detail than Salerio and Solanio did (I,i,8-40) the primary worry about Antonio, that he has

over-weighted the high-risk portion of his portfolio. And Shylock hears

nothing of, and apparently would think little of, any protestation of

adequate diversification such as Antonio had made earlier. (I,i,41-44) Yet, he finishes his calculation by declaring Antonio sufficient. How could this be, if Shylock is purely calculative? Are we to imagine that Shylock has been deceived in Antonio's wealth as Solanio and Salerio were by Antonio's false reckonings? (I,i,43-44) This seems unlikely. Or should we imagine that Shylock sees that the loan with its three month time limit (which he soon has Antonio repeat, [I,iii,61]) might offer him the opportunity to break Antonio, even destroy him? Or, rather, should we imagine something else entirely: that Shylock is not really a mechanical bean counter at all but one who senses that this bond is a

good way to explore and deepen his bitter relations with Antonio?

Just after his peculiar calculating, Shylock speaks to us in an aside. He tells us of his hatred for Antonio, of Antonio's racist insults, of Antonio's practice of lending money gratis which brings down the interest rates, and most importantly, he says, "If I can catch him once upon the hip / I will feed fat the ancient grudge I bear him." (I,iii,41- 42) How does this aside answer our questions? He does not comment at all on his calculations. He announces no plan to catch Antonio on the hip. Instead, he speaks rather elliptically about feeding fat his ancient grudge. Certainly, if we are to take Shylock as supremely calculative and manipulative, he is like no other of Shakespeare's great calculative manipulators who take joy both in their manipulations and in explaining them. Compare Shylock's comments to Richard III's in Richard III (I,i,145-162) or Iago's in Othello.21 (I,iii,83-404)

If we start out supposing that Shylock has been playing a part to

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produce certain effects in Bassanio and that, now, he clearly sees an opportunity for his revenge, this aside surely does not help. If, on the other hand, we see Shylock as someone who conducts his business by instinct and gets results by developing relationships, then we can imagine that Shylock has been solicited by Antonio's revered place in the community and by his own unresolved hatred of Antonio to make the loan. This line of reasoning also has the advantage of making sense of Shylock's attempt to justify his way of life to Antonio. That justification is simply a necessary part of deepening the relationship and, toward that end, of getting Antonio to understand Shylock's worthiness.

In his justification, Shylock starts by comparing himself and his business dealings to Jacob and one of Jacob's contracts with Laban. As Shylock's rendition goes, Jacob contracted with Laban to receive all the sheep that were streaked or spotted, and then Jacob used his unique skill at animal husbandry to insure that all the lambs were multi-colored. This was thrift by Shylock's lights, since Jacob stole nothing. (I,iii,73-85) But what is Shylock getting at with this story? Is this a defense of sharp dealing? Is Shylock saying that so long as a man does not commit theft, all other clever, calculative dealings are permitted, indeed blessed according to scripture? This would be a strikingly weak argument. For under the regime of calculative cleverness, which is to say under the regime of assumpsit, where people are understood to have clear determinate intentions, Jacob clearly deceived Laban. For Laban relied on Jacob to use the normal techniques of a shepherd, and Jacob knew it but nonetheless used other techniques to Laban's manifest injury. A lucid intentionalistic world would never bless Jacob's clever deceit. But instead of imagining that Shylock understands Jacob as immensely clever, let us suppose that he sees Jacob as possessing a sort of skillful cunning. Under this view, Jacob has an unusual skill that, as skills do, seeks its own opportunity to be used. Now, when such a man as Jacob makes the specific contract with Laban, he does so because he is motivated by the sense of wholeness he receives from integrating his special skill with the rest of his life. He does not see the situation as one of mutual reliances but as an opportunity to integrate the various aspects of his life and do the things he is good at. He just does not see himself or the situation from Laban's view or anyone else's. Looked at in these lights, did Jacob do anything wrong? No. And the reason is that he did not actively try to deceive Laban and because he committed no prohibited act. If Shylock speaks from a world where he has little reflective distance on his skills and so cannot see his activities as directed by clear determinate intentions that play a part in a network of others' clear determinate intentions, then his justification by the

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story is plain. Each man, including Jacob and Shylock, has to get by according to the abilities God has given him. He is justified in this so long as he uses what is his own and does nothing prohibited.

It is generally supposed that Shylock sees the bond as an instrument for killing Antonio. But the terms of the bond grow out of Shylock's last attempt to explain who he is and why Antonio should appreciate him. In that speech, Shylock moves two points. First, he says that in lending money for interest he is simply doing what he wants with his own wealth, and, he implies, Antonio ought to credit this desire so far as Antonio has the need to do the same. (I,iii,108) And, second, Shylock complains that Antonio has abused him verbally and physically, for collecting interest. Now especially, since Antonio seeks a loan from Shylock, seeks, that is, to have Shylock's money, Antonio ought to be able to accept Shylock's lending practices and refrain from abusing Shylock. (I,iii,109-124) But Antonio speaks as though friendship, not ownership or physical integrity, is the highest good. And speaking in the name of friendship - as friends do not take interest from each other (I,iii,128-129) - Antonio claims he can have no other relationship with Shylock than that of enemy. (I,iii,125-132)

The terms of the bond represent no more than a challenge to Antonio to stand by his implicit and explicit claims. For in the name of Antonio's highly esteemed friendship - Shylock will become Antonio's friend (I,iii,134) - Shylock offers Antonio a loan at no interest so long as Antonio shows that he is willing to forfeit those basic human needs which he has treated so slightingly, the need to control what is his own and to have his bodily integrity respected. The forfeiture of a pound of flesh of Shylock's choosing speaks both to control over what is one's own and to bodily integrity in the extremest fashion.

But is this challenge the work of skillful cunning or an intentionalistic cleverness? If we say from cleverness and the world of contract, then we have a rather odd situation. For if we interpret Shylock as rehearsing his story of Jacob and then of his own indignities primarily to find out what Antonio valued most highly and also to find out how he could offer Antonio a deadly bond in the name of that, then we see that Shylock has wasted his time. Antonio does not consciously respond to the implicit challenge in Shylock's bond. Antonio has instead implicit trust in his ventures and is sure that he will get 27,000 ducats a month before the bond comes due; he mentions this twice (I,iii,152-155,176-177) and seems unmoved by Shylock's explanation to Bassanio that Antonio's flesh is worthless. (I,iii,156-165) Shylock could have offered his lethal terms straightout and have obtained Antonio's approval.

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If, however, we imagine Shylock as instinctively trying to develop a rapport with Antonio and rehearsing his stories because he actually cares about what he says and wants to break through Antonio's rather impervious exterior, then we may say that his skill at forming relationships and extracting the maximum interest has generated the terms of the bond without Shylock actually calculatively thinking about it. Why, however, should we think that Shylock would seek to deepen his relationship with Antonio at all? Even granted that Shylock operates as Bacon's skillfully competent Englishman, he hates Antonio. Would he not be repulsed by a deepening of that relationship? The answer to these questions goes to a point Shakespeare has Shylock make later in the play. The answer goes also to the way our social skills, in this case Shylock's business skills, drive all of us. I shall bring this point out here by way of another personal anecdote.

Some years ago, I was invited to a very exclusive club in Napa. I had, however, no idea how exclusive it was until one of the board of governors saw my name on the guest list and asked me to leave, because, as he put it, "we only allow Mexicans to wash our cars and bus our tables here." I was shocked and shamed, and stammered that my heritage was not Mexican and went on and on in this vein trying to ingratiate myself with this man whom I believed to be a moral monster. I could not help myself. My social skills, like Shylock's business skills, conspired to make me smooth over this ugly situation. I felt humiliated by the time I convinced him that I ought to remain. This is what being led on by one's skills can do. I became an example of Shylock's man who offends himself at being offended by the sound of the bagpipe. (IV,i,56-58) Such offenses, without the relief offered by reflective distancing, are what the man who is guided by his simple social skills comes in for, and this man with his wounded integrity is who Shylock says he is.

C. Shylock in Court: The Flesh Revisited

That Shylock is a figure of customary life comes out most clearly though in his famous forensic arguments. In them, he does not simply say that Antonio owes him the flesh or even that the pound of flesh is already his and that Antonio merely detains it. Rather, Shylock exemplifies these claims by identifying himself with his own flesh, which itself cries out for the pound of Antonio's flesh. Shylock does not speak with any independence from his body. The speeches are so well-known that they need not be quoted. They are the "if you prick us do we not bleed" speech (III,i,52-62) and the "some men love not a gaping pig" (IV,i,35-62) speech which ends where Shylock says he seeks the pound of Antonio's flesh for no reason. These speeches

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show that Shylock understands his actions as unmediated fleshy responses to solicitations of the environment. This has to be as striking and unusual to us as the old debt practices are. Shylock is arguing for such practices while living in these practices. The incitements to sue, Shylock compares to pin pricks, tickling, poison, rats, slaughtered pigs, cats, and the sound of bagpipes. And the responses to these solicitations Shylock likens to bringing a suit to trial.

Only if his speeches are taken to be about the skillful life can we avoid claiming that Shylock has fallen into an intellectual error over the nature of cognitive functions. For like a bodily reaction, the nature of a skill is not to get behind and justify itself. It speaks not about itself but out of itself. We still find ourselves in this state sometimes. Why does Shylock seek Antonio's flesh? Return now to the coffee-shop anecdote. Suppose we tell the coffee-shop anecdote to a dean, and she asks with an injured sense of propriety, "How can you have allowed yourself to receive free coffees from that student?" In such a moment, we would be likely to say, with Shylock, "No reason." (IV,i,59) We were carried away by the solicitations of the situation. Our skills for handling favors were running the show; we - if by "we" we mean the reflective intentional agent - were hardly there. Why does Shylock seek Antonio's flesh? "No reason." That is what the situation of being the victim of Antonio's racist insults and endless harassment solicits him to do. But we must be careful here. We may get behind this solicitation and speak, as we have, of the way Antonio has slighted Shylock's flesh carelessly and of how Antonio is being taught the priority of caring for flesh, for ownership, over the mutual reliances among friends. Shylock could not do this. To get behind the solicitations of the moment and rationalize the bond this way is to step into another world, the intentionalist Venetian world, which Shylock steadfastly resists. He speaks out of the world of embodied skill and not reason.

I don't have time today to develop my argument that Shylock implicitly seeks to show the Venetians that their law, which is dedicated to the mutual reliances of friendship, has vague proprietary notions as the condition of its possibility. Rather, the last two topics that I want to take up are Portia's arguments in the trial scene and the ring plot at the end of the play. These two topics make a suitable ending because they point back to Slade's Case and explain both why Coke won and why the new contractual culture was able to displace the customary culture.

D. Portia and the Trial

In discussing Portia, I must leave out my account of how she

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has made herself into a devotress of the arbitrariness in male activity both of her father's casket game, in which she sees no deep truth,22 and of the preposterous lies of men. (III,iv,60-79) She is, however, such a devotress that she tells Lorenzo and Jessica that she is going off to a monastery (III,iv,31) when, in fact, she goes off to disguise herself as a lawyer, to lie, and to save the day with the same kind of hyper- rationalism that Coke displayed in his argument against Bacon. Only in Portia's hands the arbitrariness of the hyper-rationalism shines through. For, if you remember, Coke argued that any transaction would contain circumstances that the participants would take into account, and this would mean that any transaction had endeavors on which the participants would rely. Coke even went so far as to claim that all the debt transactions the courts had adjudicated thoughtfully were full of particular circumstances that mattered to the participants. Portia's reasoning works in precisely the same way. She will argue first that there is some circumstance that Shylock, in his reading of the bond, purposely ignored and then argue that he is not justified in this since the court has been taking this circumstance into account all

along. First, she says, "The bond doth give thee here no jot of blood, /

The words expressly are 'a pound of flesh.' " (IV,i,302-303) Common sense, of course, rebels against this. As the play has already pointed out, flesh of muttons, beefs, goats, and pigs is freely bought and sold presumably with no accounting for blood. (I,iii,163; I,iii,29) Must we reconsider and assume that all such contracts of sale stipulated blood as well as flesh? Of course not. This is precisely part of Portia's point (and Shakespeare's innovation). When men thought of flesh in the past, that thought comprehended blood. But that blood was never Christian blood. The law has all along distinguished Christian blood from other blood, as Portia shows, for when Christian blood is spilled, the spiller loses his land and goods. (IV,i,306-308) Portia's next point follows the same line of reasoning. If Shylock cuts flesh of more or less than a pound, (IV,i,327) not only are his goods confiscate, but he dies. (IV,i,328) At issue here is that Shylock, an alien, seeks to cut a citizen's flesh. (IV,i,344-350) Clearly that concern never came up with flesh of muttons, beefs, goats, and pigs. Moreover, to take more or less than a pound of citizen's flesh would manifest an intention to do

something other than was stipulated in the bond and that collateral intention that had to be present would, under Portia's interpretation, be an intention to take Antonio's life. With or without the alien statute, Shylock has, according to Portia, attempted murder.

Portia reveals the destructiveness of the Cokean hyper- rationality. Distinctions can be made as arbitrarily against custom as one would wish and still be justified as having been implicitly alive in

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the way people have lived.23 As soon as this kind of skeptical cleverness enters a culture, its customary forms of life must give way. This is quite a surprising result. It is not the normal contractual culture itself that defeats customary culture, but an extreme form of the contractual culture, the skeptical possibilities opened up by thinking of the actions of people as implicitly containing intentions that may be relied upon. Clever people may always claim to have relied upon more than would have seemed to have been implicit in any activity.

This brings us to the end of the play - to the ring plot - and to the question, Why didn't contractual culture itself succumb to its skeptical extreme by discovering that all actions suggest a welter of conflicting contractually binding endeavors?

To see what happened we should first look at what happens in Portia's last prank and then at Coke's second argument, which in the face of his and Portia's skeptical hyper-rationalism takes on more urgency. After the trial scene, Portia and Nerissa, still playing the role of lawyer and clerk, demand in payment their wedding rings from Bassanio and Gratiano. Later, in their own persons, Portia and Nerissa charge that their husbands have given the rings to women, that they have been faithless, and that this justifies Portia and Nerissa's sleeping with the lawyer and his clerk. Again, Portia proves apt at reading her own distinctions back into Bassanio and Gratiano's behavior. What man, she argues, would steadfastly seek another man's wedding ring? (V,i,203-206) They must, she says, have given the rings to women. (V,i,207-208) This hyper-reasoning would be merely repetitious, except that something new comes of it. Bassanio and Gratiano give up their reasonable responses to speak simply of their desires. It is on this note that the play ends. Gratiano will "fear no other thing" so much as "keeping safe Nerissa's ring." (V,i,306-307) The point for Bassanio and Gratiano is the same as that for Coke in his final speech. Reason does not rule everyday actions; they flow from common desires and common practice. Contractualism - the tendency to read intentions into all actions - will be constrained by a common practice and a common desire that require devotion more than reason. This is Coke's final point. Intentions are to be read into actions only so far as devotion to the ways of common desire and practice finds sensible, not so far as reason allows.

1. A longer, more adequately argued version of this essay is forthcoming in English Literary Renaissance under the title "The Transformation of Intentionality: Debt and Contract in The Merchant of Venice."

2. This is amply documented in William J. Jones's "Conflict or Collaboration? Chancery Attitudes in the Reign of Elizabeth I," 5 The American Journal of Legal History 12 (1961). It turns out, in fact, that the two courts supplemented each other with the

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document-centered Chancery proceedings providing the means for common-law plaintiffs to obtain important evidence for the pursuit of their claims.

3. The main exponents of this consensus reading are: Mark Edwin Andrews, Law Versus Equity in "The Merchant of Venice" (Boulder: University of Colorado Press, 1965); Maxine MacKay, "The Merchant of Venice: A Reflection of the Early Conflict between Courts of Law and Courts of Equity," 15 Shakespeare Quarterly 371 (1964); George W. Keeton, Shakespeare's Legal and Political Background (London: Sir Isaac Pitman & Sons, 1967), pp. 143-146; and Nicholas W. Knight, Shakespeare's Hidden Life (New York: Mason and Lipscomb, 1973), pp. 178-190.

In 1976, E. F. J. Tucker in "The Letter of the Law in The Merchant of Venice," 29 Shakespeare Survey 93 (1976) dissented from this consensus in attempting to show that it depended on a series of misreadings of legal documents. But his argument did not succeed, as Walter Cohen in his influential article "The Merchant of Venice and the Possibilities of Historical Criticism" 49 English Literary History 788, n. 55 (1982), argued that any equitable reading depended on the development of the notion of equity in the Chancery. So even if the advocates of the Common-Law-Courts-versus-Chancery reading got the details wrong, their general account of the conflict as between conscience or equity and strict justice was correct. This claim seems to have succeeded, for when William Chester Jordon announced the current legal consensus on Merchant in his "Approaches to the Court Scene in the Bond Story: Equity and Mercy or Reason and Nature," 33 Shakespeare Quarterly 49-50 (1982), Tucker's dissent was not mentioned. Even more recently, Arthur F. Kinney repeats the current consensus view in his "Sir Philip Sidney and the Uses of History," The Historical Renaissance, Heather Dubrow and Richard Strier, eds. (Chicago: University of Chicago Press, 1988), p. 305. M. M. Mahood's introduction to The Merchant of Venice (Cambridge: Cambridge University Press, 1987), pp. 17-18, recalls Tucker's view, but for Mahood the issue still remains that of equity against the letter of the law.

Because of the consensus reading, it is important to point out that by the 1590s the Court of Chancery had developed the practice of giving relief when bonds imposed extreme hardship. Chancellors had done so since the fifteenth century. And without doubt the Chancery in Shakespeare's day would have granted relief to an obligor such as Antonio who had missed his payment day but was willing to pay a short time after. So if we try to read the court scene as a case of Chancery or equitable intervention, then we trivialize the scene since the principle of Chancery intervention in such cases was well understood. (On Chancery practice, see A. W. B. Simpson A History of the Common Law

of Contract (Oxford: Clarendon Press, 1975), pp. 118-120.)

4. The leading exponents of this near-consensus view are: C. L. Barber in "The Merchants and the Jew of Venice," Shakespeare's Festive Comedy (Princeton: Princeton University Press, 1972), pp. 163-191, John Russell Brown in his introduction to The Merchant of Venice (London: Methuen, 1964), pp. xi-lviii, Lawrence Danson in The Harmonies of The Merchant of Venice (New Haven: Yale University Press, 1978), and Frank Kermode "The Mature Comedies," in Early Shakespeare, John Russell Brown and Bernard Harris, eds. (New York: St. Martin's Press, 1961), pp. 211-237. Recently, Michael Ferber has restated and updated this view by showing how Shakespeare mixes certain Christian, Aristocratic, and other ideologies together in his "The Ideology of The Merchant of Venice," 20

English Literary Renaissance 431 (1990). Marianne L. Novy also belongs in this group, though she distinguish's Portia's ability to receive graciously from the narrower Venetian abilities. See her "Giving, Taking, and the Role of Portia in The Merchant of Venice," 58 Philological Quarterly 136 (1979). Richard Weisberg in his Poethics (New York: Columbia University Press, 1992), pp. 102-104 follows Novy in depicting a Portia whose sensibility and thinking goes beyond the Venetians'. Weisberg sees Portia as realizing the right place for Shylockian unmediated exactitude, and that is in intimate relations not in commercial ones. Interestingly, the argument against mediation was historically that of the Puritans,

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and it was from this argument that the spirit of the law, with which Portia is often associated, took on new meaning. For how one did something - worshipfully or not - came to replace an interest in what one did.

5. This essay focuses on the relation between The Merchant of Venice and (1) the changes taking place in everyday English social practices and (2) the way those changes are articulated in the common law. Therefore, this essay will ignore the relation between Shakespeare's Venice and the actual Venice or Shakespeare's Venice and the actual English understanding of Venice. Neither of these relations could go very far in examining the relation of the play to everyday English social practices. But for work on the relation of the play to both the actual Venice and to the English understanding of Venice, see Cohen, supra note 3 at 765-789 and M. M. Mahood, supra note 3 at 12-16.

6. Although putting this essay's main points schematically may make it appear that the essay endeavors to reveal an allegorical relationship between the legal case and the play or, more simply, to show that the play dramatizes the arguments of the case, such an allegorization or dramatization is not the point. First, certain of the legal arguments that the play calls attention to were made only after the play was written. Second, and more important, this essay is supposed to show that the play draws on the practices that underlie the actual legal arguments.

7. Instead of "undertaking," we would say informal agreement. But to think in terms of an informal agreement already sets the case in the post-1602, contractual world it established. In that world, we treat informal agreements as a species of deficient formal (i.e. contractual) agreements.

8. The Medieval law of debt divided into the formal debt upon an obligation - a bond - and the informal debt on a contract, where a contract amounted to any informal transaction where something changed hands and no sealed document recorded the terms. The informal action of debt was further subdivided into pure debt (for money detained), debt in the detinet (for fungible goods other than money detained), and detinue (for a particular thing detained). Since court awards were for value or the thing, leaving the choice to the defendant, little will be made of these distinctions in the law of informal debt.

Bonds speak out of the mute world of customary debt. Bacon himself argued that if one were to give words to a bargain and sale and then seal those words, one would have a bond, not a covenant (a written assumpsit). (Baker 61.) In law, a bond simply signified that a debt already existed, presumably one contracted in a customary way, and that the person who sealed the bond agreed to pay the debt on a certain day. Moreover, the sealed instrument was dispositive in that it required no ancillary proofs. It took away wager of law and, in the case of a simple bond, jury trial. The person who sealed the bond had already spoken in the bond and bound his conscience by his words there. There could be no going behind the bond to see if there were any actual debt, just as much as there could be no going behind the wager of law. (Undoing a bond, as Portia does, would be then the strongest case imaginable of undoing the customary law of obligation.)

9. Sir Edward Coke, The Reports of Sir Edward Coke, vol. 76 of The English Reports, Max A. Robertson and Geoffrey Ellis, eds. (London: Stevens & Sons, 1907), at 4:95a.

10. Millington v. Burges (1587), J. Gouldsborough, Reports of that Learned and Judicious Clerk, J Gouldsborough, vol. 75 of The English Reports, Max A. Robertson and Geoffrey Ellis, eds. (London: Stevens & Stevens, 1907), p. 66. In this case, the court allowed the defendant to wage his law.

11. Anonymous (1587), Gouldsborough, 58. Anderson told the defendant that the act of the third party could not clear his debt.

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12. There are others in manuscript reports. SeeJ. H. Baker, "New Light on Slade's Case," 29 Cambridge LawJournal 51-67 & 213-236, especially 230 n. 94 (1971).

13. In arguing from an anecdote, I am drawing on the methods of such phenomenologists as Heidegger and Merleau-Ponty. The point will be to locate in the

margins of our own practices those practices that make sense of the law of debt. Later, we shall see that Shakespeare's Venetians frequently conceive of their situations in terms of similar exemplary stories. But they develop their exemplary stories as a way of distancing themselves from the immediate situations they inhabit in order to draw themselves into a

generic rhetorical world. The point of my anecdotes will be to do just the opposite, to make us aware of aspects of our situations that we generally pass over. In both cases, however, the anecdotes and stories are a way of calling attention to particular practices.

14. This clause and the rest of Bacon's argument, which is being paraphrased here, appears in Baker 62.

15. The kind of solicitation that I have in mind here is like that of those student papers which solicit us to write additional pages of comments. I, for one, seldom sit down determined to write more than a page of comments, but I do, on occasion, write more than two pages of comments when I warm to problem I am describing. I imagine that in a customary society, a man who raises horses for the market can find himself drawn to examine one horse or another and then before he knows it, he could find himself getting the horse ready for market, just as before I know it I am half way through the second page of comments.

16. The details here match closely Mitchil v. Alestree (1676); Sir Peyton Ventris, The Reports of Sir Peyton Ventris, vol. 86 of The English Reports, Max A. Robertson and Geoffrey Ellis, eds. (London: Stevens & Sons, 1908), at 1:295; Sir Creswell Levinz, The Reports of Sir Creswell Levinz, vol. 83 of The English Reports, Max A. Robertson and Geoffrey Ellis, eds. (London: Stevens & Sons, 1908), at 2:172; and Jos. Keble, Reports in the Court of Kings-Bench, vol. 84 of The English Reports, Max A. Robertson and Geoffrey Ellis, eds. (London: Stevens & Sons, 1908), at 3:650. I follow Milsom in treating this case as representative [S. F. C. Milsom, Historical Foundations of the Common Law (London: Butterworths, 1981), p. 311]. Cases like it were certainly prevalent by the 1570s (Id., at 310).

17. I am not using "intentionally" here as a synonym for purposefully. Rather, I mean intentionally in the philosophic sense. The subject's inspection of his or her

neighborhood consists of lots of observations with determinate mental content (the intention), which is either conscious or which may be made conscious through simple interrogation or introspection.

18. See Baker, supra note 12 at 62-63, n. 68.

19. 4 Co. Rep. 93b-94a.

20. I,i,29-37. All quotations of The Merchant of Venicewill be from William Shakespeare's The Merchant of Venice, John Russell Brown, ed., Arden edition (London: Methuen, 1964), and future line references will appear parenthetically in the text.

21. For these plays, the references come from The Riverside Shakespeare, G. Blakemore Evans, ed. (Boston: Houghton Mifflin Company, 1974).

22. When Nerissa changes the subject, (I,ii,32) we are probably meant to suppose that her arguments for the reasonableness of the casket game have failed to touch home.

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23. For more on this Portian rule-skepticism, see Saul A. Kripke, Wittgenstein on Rules and Private Language (Cambridge: Harvard University Press, 1982), pp. 7-55. Kripke's account of the destructive part of Wittgenstein's argument fits Portia's practice. Kripke's argument like Portia's depends on three claims. First, any customary rule can be read to fit all but the particular circumstances of the particular case in question. Second, restating the rule to fit all but the particular circumstances at hand gives just as good a hold over previous customary behavior as the older statement of the rule. Third, something, if only our anxiety about applying general rules to particular circumstances, will fit with the surprising restated version of the rule. (We were anxious about applying rule X in this situation because deep down deep, we suspected that it was really rule X', the restated version of rule X, which applied.)

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Documents

A Symposium Issue on "The Merchant of Venice" || Shylock and Debt and Contract in "The Merchant of Venice"