Statue of Portia, University of Michigan (Martha Cook building)
Dear all, next week we will analyse “the Shakespearean play most closely linked in the popular mind with law”, THE very classic of the Law and Literature studies: "The Merchant of Venice". The play will give us imputs to think about some important legal issues and to better unserstand the perception of key legal problems in a certain historical period. To sum up, we will use the MOV to ask questions rather then give answers.
On Friday April 5th there will be no lesson.
SHAKESPEARE IN LAW
Brief Outline:The lesson will be focused on the following questions:
1) What was the role of Jewes in 16th/17th century Europe? /What does it mean not to be admitted in a community?
2) What was the discipline of usury? / What does usury mean?
3) What was the relation between law and equity in Shakespeare’s England? / What does equity mean?
1) What was the role of Jewes in 16th/17th century Europe? /What does it mean not to be admitted in a community?
2) What was the discipline of usury? / What does usury mean?
3) What was the relation between law and equity in Shakespeare’s England? / What does equity mean?
4) Is the procedure described in the play historically accurate? Is it important?
Reading:
D.J. Kornstein, Fie Upon your Law!, in “Cardozo Studies in Law and Literature”, 5.1 (1993): A Symposium Issue on “The Merchant of Venice”, pp. 35-56.
Reading:
D.J. Kornstein, Fie Upon your Law!, in “Cardozo Studies in Law and Literature”, 5.1 (1993): A Symposium Issue on “The Merchant of Venice”, pp. 35-56.
Suggested reading (not compulsory!)
Forthcoming: S. Gialdroni, La clausola penale tra finzione e realtà. Il caso limite di Shylock alla prova del diritto veneziano, del diritto comune e del common law, in La pena convenzionale nella prospettiva storico-comparatistica (Collana del centro di eccellenza in diritto europeo - G. Pugliese), Napoli: Jovene, 2013.
Today's class was about Law and Shakespeare, we talked about the play "The Merchant of Venice", and prof Gialdroni underlined the particulary link between this play and the law; i was very fascinated by this lesson which has so many different point to start an analysis, but what i appreciated the most was the role of jewes during the Elizabethan era.
ReplyDeleteIn this period, the english society was described as "JUDEOPHOBIC"; this people were considered as aliens, a very strong word to describe a human being!!!!! They couldn't do a lot of kind of works, they didn't have rights,they weren't citizens at all, we could say that they weren't considered as human beings!!!!!
In Venice, the place in which the play takes place, Jewes were required to wear a red hat in public, to easly identify them; an hat as a kind of " brand", and they also had to live separeted from the other venetian people, they had to stay in a ghetto protected by Christian guards.
So we can say that there is a kind of discrimination of jewes in this period, that it is possible to compare with Apartheid in South Africa or with Hitler's antisemitism.It may change the historical period, but unfortunately the content is the same!
Today,Dott.ssa Gialdroni asked about the anti-semitic vision of the MOV. I think that in this Shakespeare’s work there are anti-semitic aspects but at the end Shakespeare condemns them . We have to look, firstly, the historical context: the work was born in a period characterized by anti-semitic moods. In fact, there were conflicts against the Jews because they were considered as usurers and greedy bankers. Contemporary writers used this stereotype to attract the dislike of readers. The jew shylock represents some negative feelings: the revenge, the avarice, the jealousy! All defects that Christians don’t have! I think that Shakespeare simply tells a common feeling diffused between Christians of that time but he takes the distances from it! Shakespeare passes his actuality to affirm a justice that considers only the human right like human being, beyond the religious connotations. This aspect is visible in the famous Shylock’s monologue:
ReplyDelete“He hath disgraced me, and hindered me half a million, laughed at my losses, mocked at my gains, scorned my nation, thwarted my bargains, cooled my friends, heated mine enemies; and what's his reason? I am a Jew. Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions? Fed with the same food, hurt with the same weapons, subject to the same means, warmed and cooled by the same winter and summer, as a Christian is? If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die? And if you wrong us, shall we not revenge?If we are like you in the rest, we will resemble you in that. If a Jew wrong a Christian, what is his humility? Revenge. If a Christian wrong a Jew, what should his sufferance be by Christian example? Why, revenge. The villainy you teach me I will execute, and it shall go hard but I will better the instruction.”
Shylock, a Jew who has suffered endless discrimination at the hands of his enemy, Antonio, asks why he should not be allowed to exact his revenge now that he has been given the chance! The monologue will be assumed by the culture of tolerance to claim the human and civil rights of the "minorities"!
Alice Borsacchi – Diana Cecconi – Ylenia Coronas
ReplyDeleteMoving from the analysis of Shakespeare’s Merchant of Venice, in particular we refer to the IV act, we will explain the relationship between Ius Strictum and Aequitas and how this antithetical connection was born. Ius Strictum and Aequitas have their roots in the Classical Age: Aristotele, although he was not the coiner of the term “Aequitas”, was the first philosopher to define this concept. In fact in his “Retorica” he considered Aequitas (epieìkeia) as a form of justice that goes over the Ius Strictum. But at the same time is not possible to combine the two concepts but neither completely separate them. Aristotele referred to the Aequitas in single cases such as a sort of natural justice (or absolute justice, physikon dikaion), contrasting it to Greek legal justice (nomikon dikaion). The relationship between these types of justice was explained by the Greek philosopher as follows:
<<1’equo è giusto, ed è migliore di un certo tipo di giusto, non del giusto in assoluto, ma di quell'errore che ha come causa la formulazione assoluta. E questa è la natura dell’equo, di essere correzione della legge, nella misura in cui essa viene meno a causa della sua formulazione universale. Questa è la causa anche del fatto che non tutto avviene in base a una legge, cioè al fatto che in certi casi non è possibile stabilire una legge, e c'è bisogno di un decreto particolare. Di ciò che è indeterminato anche la misura è indeterminata, come il regolo di piombo tipico del modo di costruire che hanno a Lesbo, infatti tale regolo si adatta alla forma della pietra e non rimane saldo: allo stesso modo il decreto si adatta ai fatti>> [Etica Nicomachea, Aristotele].
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The understanding of Aequitas and Ius Stritcum as concepts that have a strong identity between them allows us to bring the virtue of equity at the centre of debates on Ethics. Considering that the four cardinal virtues of Plato, Aristotle has incorporated in his work, adding others:
ReplyDelete1)Temperance (sophrosyne);
2)Wisdom (phronesys);
3)Courage (andreia);
4)Justice (dike).
We can perceive that the philosophical thought developed in Ancient Greece about Aequitas was more than a mere source of secondary law: it was born into a virtue ethics of central importance to the development of a good man.
However the concept of Aequitas was developed in the Roman Law in more strictly way in the single process: the jurists used to suggest right solutions to the judge, who was the only one able to give them judicial protection.
In Roman law was also present the Ius Honorarium (from honor = office), the “imperium” of the magistrate that created the right, on the advice of jurists. In this period the Aequitas had the role of instrument of correction and adjustment of the Ius Civile. The judge had discretional power: he could not only correct the Ius Civile, but also opposed to it, just because it was based on a natural law, which Aequitas. In fact, in the period of transition from the Republic to the Princedom, characterized by the heyday of the Roman Scientia Juris, for a debate between two great school leaders about legal method: Servius Sulpicius Rufus vs. Quintus Mucius Scaevola. In the debate even the illustrious Cicero took position: in his work “Filippica” he defined Rufus as the one who had the ars, one who is able to split the whole issue into parts, to explain and to formulate a rule, while Scaevola had only the usus of civil law.
The first was the promoter of the method of abstraction, used to formulate generalized solutions but with case law structure: the legal principle was connected to the case. On the contrary Quintus Mucius was the first juris-consult to tried making a treaty on civil law: “Libri Juris Civilis”. He formulated the response as a principle of isolated law from the contingent elements.
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Really, the contrast between Jus Strictum and Aequitas seemed inexistent because the latter is inside the Ius Scrictum within the principles of the Ius Civile and the jurist had to identify it. Therefore Aequitas became an inseparable element of the same Ius Civile. Cicero would later say that Aequitas, Senatus Consulta, Edicta Magistratuum (positive law) are all single “partes” of the Ius Civile (Partitio found in Topica, 5.28 Cicero).
ReplyDeleteSo we can say that Aequitas and Ius Strictum co-exist and complement each other.
Starting from the analysis of the process in The Merchant of Venice, Shylock appears faithful to the bond and Portia, in defence of Antonio, tries to prevail equity in the bonds between private parties. Initially Portia asks to the Jew to be merciful; she is rejected by the moneylender; she tries with the rhetoric to save the life of Antonio anyway. We can consider the woman like a Roman jurist of the Classical Age of Roman Law, in the guise of a learned doctor to suggest the "right" solution to the judge (the Doge), giving in this case a critical interpretation of the bond, as if to correct it.
Sources:
* Letizia Vacca, Metodo casistico e sistema prudenziale, 2006
* Cicerone, Topica (5.28)
* Cicerone, Filippica (9.10)
* Aristotele, Retorica
* Aristotele, Etica Nicomachea
Alice Borsacchi – Diana Cecconi – Ylenia Coronas
William Shakespear or John Florio Crollalanza?
ReplyDeleteThis week in class my attention was catched by dott.ssa Gialdroni’s words about William Shakespeare’s identity. We haven’t many informations about Shakespeare’s youth, nevertheless the great part of scholars think that William from Stratford was the real author of all the works ascribed to him.
But another part of scholars thinks that William was only a dummy and they have many reasons to affirm this. Some of these are: Not a single manuscript has been found in William Shakespeare's handwriting; although there are no indications that William ever left England, his works are setted in Italy or Europe; William’s parents and daughters were illiterate; None of his works reflects an event of his life; He often describes aristocratic life with many details but he was not a member of the high class; in his testament William doesn’t mention his poems or his works.
There are many theories about the real identity of the author of all the poems signed by William Shakespeare. Martino Iuvara and many other scholars think that the author had Italian origins: John Florio Crollalanza who was born in Messina, Sicily, and escaped Inquisition going to England. In Stratford he lived by one of his mother’s relatives who thought that John looked like his dead son William; so people started to call him “William”. The surname was changed too: Shakespeare is the literal translation of Crollalanza (Scrollalancia).
This theory is supported by many facts: Michelagelo (who was John’s father) was the Italian schoolmaster of princess Elizabeth: so he knew aristocratic life. John was his father’s pupil too; In shakespeare’works we can found some references to john’s life (For exemple Otello’s story was probably inspired FROM a john’s neighbor in Venice. He was a moor that killed his wife because of jealousy).
Diana Oro Nobili
IN SHAKESPEARE'S ENGLAND THERE WAS A STRONG CONTRAST BETWEEN LAW AND EQUITY. THE GREATEST CONTRAST BEGAN IN 17th CENTURY DURING A LONG COMPETITION BETWEEN TRENDS OF ABSOLUTISM CHARACTERISTIC OF MONARCHY (WHICH WAS COALESCED WITH THE CHANCERY COURT), AND THE RESISTANCES OF THE PARLIAMENT,THAT SUPPORTED THE COURTS OF COMMON LAW. THIS CONTRAST ENDS IN 1616 WHEN JAMES I STUART ISSUES A DECREE THAT DECLARES THE SUPREMACY OF EQUITY IN CASE OF CONFLICT.
ReplyDeleteTHIS SUPREMACY,HOWEVER,HAS TO BE EMPLOYED WITH MODERATION WITHOUT ABUSE.
SINCE 1600 EQUITY WAS QUICKLY REINFORCED BY A SYSTEM OF PRECEDENTS SIMILAR TO COMMON LAW'S ONE: IN THIS WAY THE CRITICS AGAINST EQUITY AND ITS ABSENT FIXED RULES IS DAMPENED.
NOWADAYS,IN COMMON LAW STATES THE DIFFERENCE BETWEEN LAW AND EQUITY BASES ON THE SOLUTIONS THAT EACH OFFERS,AND ON THEIR SOURCES (RESPECTIVELY STATUTES AND MAXIMS OF EQUITY).
WHAT ABOUT ITALY?? CAN WE HAVE RECOURSE TO EQUITY? YES,OF COURSE BUT ONLY IN THESE TWO CASES:
1) IF IT'S A TRIAL IN FRONT OF "GIUDICE DI PACE" FOR DISPUTES WITH VALUE NOT SUPERIOR TO 1100 EURO;
2)IF THE PARTIES IN AGREEMENT WANT JUDGE TO DECIDE WITH EQUITY.
Dr.ssa Gialdroni, in relation to the process of the Merchant of Venice, has focused attention on the concepts of equity and jus scrictum pointing to the end to focus attention on these concepts in the modern legal system today in Italy and France and other western countries.
ReplyDeleteThe topic of equity, involves all Western legal-hystorical experiences. There are many question related the definition of equity,its mode of application and the relationship with ius strictum, in the construction of remedies, in setting limits for the interpreter, in the identification of general principles.
In our legal system for example In the provisions of the Civil Code in force, the equity is not always called alluding to the same meaning, so that you can proceed to a objectification that makes systematic reference. Regardind the application of equity on field of Private law and Procedural Civil law respect the ius strictum we can distinguish:
Interpretative equity: that, in the event of inability to clarify the meaning of the contract, refer the matter to the court, residually, the task of interpreting operating equitable balance between the interests of the parties (Art. 1371).
Corrective equity, which involves the balance between performances, can be found in the case of reduction of the penalty (Art. 1384), which can be reduced equally by the court, had, however, with respect to creditor's interest.
Integrative Equity article. 1374, where the Equity is a source of integration, is set to use and refers to the underlying principles of the legal system,opposed to the application of jus strictum. This normatives reference, comes close to the PROCEDURAL meaning of equity which is considered by most of the authors, as a set of principles, directives, guidelines that go beyond the ius strictum, and are rooted in an alternate sort: the court must judge on the base of law (Article 113), unless the law or the parties agree so requests(Article 114)
It points out that where equity is not mentioned or rarely mentioned by the legislator, however, the courts have referred to equitable values to interpret or supplement the contract, to correct the relationship of performances of contract, to mitigate the rigor of the law, to limit the application of the ius strictum.
For example in French experiences, (very similar with Italian experiences) the courts have referred to equitative solutions To specify the meaning of decency, good faith, the good father of family (buon padre di famiglia), diligence; but the equity was determinant also for the introducing of the figure of abuse of the law and and unjustified enrichment. However in Italy and France the equity has a space by the courts is very limited. Different point of view and Different situation affects the equity, especially for courts British, Canadian, U.S.: Just look at the 'courts of equity', which not only base their judgment on the principle of equity but create procedural remedies in equity. The legal culture in common low is full with issues related to equity. Regarding the French experience that i mentioned I found a very interesting comment for the comprension of the issue of equity in post-revolutionary France written by two Authors (that 'helped me' so much in my thesis): Charles Touillier, Jean Duvergier 'Le Droit civil français, suivant l'ordre du Code', Vol I, 1852. Take a look at pag 69.
In Italy, in the civil code of 1942, equity is recalled in around twenty articles. It indicates that use of equity is marginal and its application is exceptional! We can distinguish different kinds of equity:
ReplyDelete-“interpretative equity”, relating to the contract’s interpretation: if the interpretation of the contract is very difficult, it will be up of the judge. The judge, firstly, must try all interpretative rules; secondly, if these attempts have no effect, the judge interprets in according to a “ fair balance” of the parties interests (art.1371 c. c.);
-“corrective equity”, relating to the contract’s performance: it involves the balance between the performance, like for example the cut of penalty clause.
-“equità quantificativa” to determine the amount of damage;
-“ integrative equity” which is source of contract’s integration in according to the principle “ID QUOD PLERUMQUE ACCIDIT”;
The “integrative equity” is similar to the equity in processual sense. “Processual equity” is a set of principles that go beyond the “IUS STRICTUM”: the judge must decide according to law , unless the parties in agreement want judge to decide with equity (art. 113-114 c.p.c.).
The “processual equity” follows different guidelines in the relationship with the law:
-some authors thinks that equity is opposed to the law, is an alternative value to the “ius strictum”(radical directing);
-some authors see a partial overlap on the law of equity: the law would express equitable values;
-other authors assimilate equity to the “aristotelian judgment” (justice of the single case);
This week in class we spoke about law and literature and we analyzed one of the most famous Shakespeare’s work: the merchant of Venice. It’s the story of Antonio, who had been subjected to a trial instigated by the Jewish moneylender Shylock whose loan had not been repaid and who was calling for a “pound” of Antonio’s flesh. The defense of Antonio was displayed by Portia (who was masked behind the appearance of a male lawyer);
ReplyDeleteThe Playwright condemned the enforcement of the law ‘to the letter’ and besought clemency and the “mercy”. Mercy is, according to the Author, necessary to obtain the real justice.
But even in other Shakespeare’s works we can find references to legal matters; so we can understand that the author should have a good knowledge of law and its problems. For example:
In the play “Romeo and Juliet”, is described the conflict between two households in Verona (Capulet and Montague); Tybalt (Capulet) killed Mercutio (Montague) and, as a consequence, Romeo (Montague) murdered Tybalt. So the Prince of Verona decided that Romeo was banished from Verona. Prince pointed out that no mercy was possible in case of a murder and he would be deaf to pleading and excuses.
In the play “Measure for Measure”, Claudio has been taken to prison for getting his fiancée (Juliet) pregnant out of marriage and has been condemned to death. The punishment should had been more moderate than a death sentence; The Playwright pointed out that the judge (who had committed a similar sin) had probably to show mercy. The story ends well; infact Claudio will be released and will marry Juliet.
Even in the play “The Winter's Tale the Playwright gives further evidence of his legal knowledge, (expecially talking about the importance of proofs) by using a terminology which was proper of lawyers.
Diana Oro Nobili
Usury is the practice of making monetary loans, applying illegal interest rates.In this way the usurer replaces the entity responsible to lend: the bank. There is a strong link between usury and Jews, in fact historically the two terms are almost synonymous (another usury's name is Shylock, but it's used with an antisemitic connotation). In particular in the Middle Age the major moneylenders were Jews and this is mainly due to two factors. Primarily because they had a lot of money arising from various business and then because there were restrictions for Jews due to the widespread policy of marginalization by the authorities. So they could undertake few activities and began to lend money for anything (to common pepole, to kings for war's cost ecc.).Moreover, the Jews had little competition initially because usury was forbidden to Christians. As regards the literature (in addition to MOV)there are other important examples and representations of usury: in The Divine Comedy Dante places the usurers in the inner ring of the seventh circle of hell;in Defense of Usury by J.Bentham(18th century) usury is more treated as a metaphor than a crime in itself;at last, in the 20th century, the american poetry Ezra Pound worked hard in the fight against usury.
ReplyDeleteI have found really interesting these two last lessons about MOV and what is related to it, Jewes treatment. I focused my attention on two aspects of what Dottoressa Gialdroni said: firstly the origin of the "Ghetto" and its meaning in the history during past centuries, secondly the debate about Equity between Martino Gosia and Bulgaro.
ReplyDeleteAbout this last topic, the debate, I have remembered to have made a term paper for Diritto Comune of professor Conte, last year, just about Equity and its history, so I would like to share with all of you my searches, trying to say just the strands of what I have found, comparing lots of documents.
Always it is seen that the Law has oscillated between the strict legislative requirements, abstract, so-called rigor iuris, and aequitas, an ethical, rational, found in fact, in actual cases, principle.
Initially it was Constantine with his Placuit of 314 who established that the Equity is what had to prevail: “Placuit in omnibus rebus praecipuam esse iustitiae aequitatisque quam stricti iuris rationem” (“L’equità è sempre da preferire allo strictum ius” C.3.1.8).Or rather, that in special cases the equity could also be prescribed by the legislature itself derogating the general and abstract rule, discarding the rigor iuris.
Then, this sentence, taken by commentators, led to the creation of two schools of thought upon the role of equity in: one sustained by Martino Gosia and the other by Bulgaro, two of the "four doctors" heirs of Irnerio's Bolognese School.
It is possible to find details of the two different positions in the so-called domino dissensiones rum (special notes, written by the commentators of that era, about the most important questions of law on which the great masters had expressed conflicting opinions): Bulgaro was the defender of “literal and written interpretation" instead Martin for an idea of law more" elastic ", preferring to use more equity, in contrast to a possible ius strictum positive, in the case of a conflicting episode.Over the centuries, historians have analyzed these two figures, proposing various interpretations of the theme, some completely discordant with each other and controversy. Actually as it is possible to see from what Piacentino e Azzone (two important Glossatori) wrote, Martino was not a revolutionary because often he preferred to remain strict to the written rules insted of using equity. Martino was just aprecursor of the “utrumque jus" of that common law which recognized as sources of law both the civil and canon law; a supporter of an equity deducible "extensio ad similia" by a law of fairness, an equity therefore not created by the judge ex ingenio suo but filtered by the legal voluntas proposed by the legislature.Instead, for the orthodox school the idea of Martin, to allow the prevalence of principles reconstructed by analogy on written rules, although the rules limit this use to cases of gaps, seemed absurd, arbitrary, too much.
So in general derision by the antagonists of Martino was based not so much on the use of equity, also accepted and used in their school, but the excessive use, in the arbitrary use of this logical process to the detriment of the positive law, considered essential.
(continue) Chiara Lombardi
The criticism of the antagonists of Martin were based on the comparison between the powers of the judge, author of the concrete norm, and legislator, author of the abstract norm, then on the subjective moment of the norm, as defined by the binomial voluntas and auctoritas.
ReplyDeleteAccording to the orthodox school the use of the application of judicial '"rough justice", also "contra legem" would inevitably lead to the substitution of the will of the judge, deriving from un'auctoritas less, to the will of the legislature, from a greater auctoritas .
In subsequent generations prevailed thesis Bulgariana as communis opinio legistarum, but in spite of this, the powers of the courts, however, were more and more amps through the use of the dialectical instruments.
(continue ) Chiara Lombardi
It can be traced back to the early Middle Ages the phenomenon of Jewish groups who gather in particular neighborhoods, a trend also emerging in other social and ethnic minorities in European cities with most commercial development. These concentrations are created voluntarily and without external pressure, especially to meet the needs of socio-cultural and religious Jewish community and sometimes with clearly defensive and protective purposes. The phenomenon is spreading in the eleventh and twelfth centuries especially in the cities of France and Spain, That to attract Jews permanently, allow them to live in special wards. These areas, which often were given special names (in Spain Juderia; Juiverie in France and in Germany Judengasse; Jewry in England, in Italy Giudecca, in Poland Ulica Zydowska) do not have almost never the characteristics of compulsory residence or segregated, the Jews indeed continue to have contacts at every level, cultural, socio-economic, with the Christian society around them.Perhaps then it is necessary to blend the idea of a neighborhood, the precursor of the ghetto, exclusive retreat and compulsory residence of the Jewish minority.
ReplyDeleteFirst, the Judengasse (ghetto in German and the Giudecca ghetto in Italy) does not always lie in peripheral locations on the outskirts of towns, near or outside the city walls, and in many cases are found in the city center, close to the market, near cathedrals and abbeys or fortified palaces, to protect their inhabitants from hostile attacks.
be in a peripheral position in the neighborhood is not necessarily an expression of Jewish exclusion from Christian society, but sometimes it is a simple persistence, dating back to the time when the Jews, in addition to other duties, was assigned to defend a part of the walls from external attacks.
However, even where they prefer to focus on a particular area, they live side by side with Christian families and their residence is not prohibited in other city districts
Only by the end of the twelfth century, the church gave specific provisions that lead to limit the Jewish presence within designated sites, to relegate within particular districts.
The medieval church at this time considered with increasing hostility contacts between Christians and Jews, and in 1179 the third Lateran Council decides to ban their cohabitation.From the middle of the thirteenth century, increase local ordinances, particularly in France, Spain and England that require compulsory residence of Jews in places of their choice to live there. The first city to implement any measures segregative is London in 1276.
Speaking of Venice in class I would like to give a brief look at the origin of the word Ghetto, as rightly said by a girl in class. is in the spring of 1516 the Venetian Senate decided to close the Jews in a separate area called 'ghetto' or 'geto' (from 'throw'), as had previously been the site of the foundries of the city, where he laid the mortars and cannons of the Republic. Although it is undisputed that the origin of the term is Venetian and Non-Jewish, it is important to note, for its psychological aspects, that Jews generally prefer from the beginning to attribute a transparent etymology Hebrew, making it derive from the word ghet, 'divorce'. The ghetto would mark the culmination and significant fact of separation and divorce of Christian society by the Jewish.
Chiara Lombardi
This topic of “strictum ius v. equity” was dealt in an historical perspective by A. Padoa Schioppa in his Italia ed Europa nella storia del diritto (2003),in a chapter dedicated to the conscience of the judge.
ReplyDeleteHis argument is all inherent to the discretion of the judge(he also presents the case of a judge who is a witness of the facts: is he able to deal with the case or not?)
The birth of the problem of the conscience of the judge was born during the ius commune due to the interaction between morality and law, for the new born “utrumque ius”, but only during the XII century began a lively question which has had the most different answers from the various doctors of law through the centuries.
Martinus, contemporary of Bulgarus, first said that the judge had the power to be discretional in his judgements only in the civil cases, but for an opposite opinion there was Giovanni da Faenza who was supported by Uguccione and Pierre de Blois with some corrections, such as the clause of the “favor libertatis”.
From the point of view of the theologians we have different thesis too: Giraldo da Cambrai was about to give priority to the conscience always, but Thomas d’Aquino, one century later, was in favour of a strictly interpretation of what had been called from that moment on “allegata et probata”: the proves and the facts presented during the trial, nothing more.
During the XIII century, whit the passage from the accusatory action to the inquisitor one, the judge saw his power increased, so he had the chance to use methods such us torture to obtain the proof he needed to proclaim the sentence according to his discretion.
By the end of the XIV century the rule of “allegata at probata” is definitely the one in charge, due to the contribution of Bartolus too, so that the debate has moved to the land of the exceptions. I’m not going to report any of them but the most valuable that, by the way, had been proposed by notable iuris doctors: Baldus degli Ubaldi made the difference between “coscientia rei & coscientia dicti”, a concept developed by Giason del Maino who talked about the conscience of the law, the one of the public order.
In the late XVI century, by the way, the theory of the conscience of the judge had a decline: the representatives of natural law gave the floor to the discussion between “certainty” and “probability” in order to condemn a person: but to say whether he is guilty or not, are simple evidences enough or we need a full proof?
The Enlightenment brought the discussion to the “moral certainty”, as Beccaria in his Of Crimes and Punishments states that “rigorosamente la certezza morale non è che una probabilità, ma probabilità tale che è chiamata certezza, perché ogni uomo di buon senso vi consente necessariamente”. On the other hand, Gaetano Filangeri pretends the judge to have not only a moral certainty but also the one of the legal proves.
With the French Revolution the conscience of the judge sees itself finally free from the system of legal proves, but there’s still a discretion for the state’s judges: but how far can be a judgement made with equity from the one made on the literary interpretation of the texts in a civil law country?
In conclusion, we can say that in the continental Europe this issue started during the ius commune with the mix of religion and law, but then it has had a process of secularizing which led to a first apparent stop of the discretional power of the judge, but in the end, after the French Revolution, the biggest triumph of codification and positive law, of judges of the States for the citizens and not of the King for the subjects, we still find this trace of equity, in my opinion the only heritage of the Christian value of mercy in a laic State which influenced the system of law in all the European countries conquered by Napoleon, due to the civil code, the instrument for a literary interpretation of law par excellence.
The Merchant of Venice is certainly one of Shakespeare's most interesting work from a legal point of view.
ReplyDeleteThe work, however, has several interesting points worthy of being analyzed, among which is the very interesting the relationship between Jews and Christians in the late sixteenth century.
In the work, but in the Michael Radford's film too (where there is an epic interpretation of Shylock by Al Pacino),we can see how to identify who is really "the bad" is not easy.
On one side there is the figure of Shylock which is, as mentioned in class, one of the most difficult (and so for centuries) to understand: usurer, greedy and attached to the money, he wants get his revenge by subtracting a pound of flesh by Antonio; this his obtuseness, as well as being the result of his way of being, it is also due to the difficult situation of marginalization that Jews lived at the time.
On the other hand, there is Antonio, a Christian merchant, who lends money for free, but never misses an opportunity to denigrate the jew and spitting in public, in front of everyone.
AT lesson we talked about the point of view of the author: personally, i think that Shakespeare, in his work, remained neutral and did not want to take the side of anyone, he just tried to make an objective explanation of the relationship between Jews and Christians.
Moving on to analyze the work, as we know, it is inspired to the work of Fiorentino "the Pecorone", with several additions. The thing that concerns us is that the case of Giannetto is not resolved in court, but in a generic office, in a form similar to arbitration.
The case described in the fourth act of The Merchant of Venice, is probably the most famous case of stipulatio poenae in the history of literature. In the comedy of Shakespeare the clause is considered legitimate: the freedom of contract seems to have no limits.
But in reality it was so? Which court should have resolved the dispute between Shylock and Antonio? Would be allowed a lawyer outside? The common law was applied?
We can begin saying that the legal system of Venice was "self-sufficient": so the role of Bellario (a famous lawyer called, who wasn't of Venice), played by Portia, is a case of pure fantasy (and this is confirmed by the fact that the process takes place without lawyers), that never would have been able to verify in Venice at the time.
About the application of common law, the supporters of the independence and isolation of the Venezian law can count on an ancient source and authoritative: Odofredo Denari which said that the Venetians did not follow The law (roman law, so) , but only their customs; and this is also confirmed by the Statute of Jacopo Tiepolo. So we can say that the common law hadn't official normative value in Venice.
However, Roman law had a considerable influence: and this is demonstrated by the recent historiography; and just to the right of Justinian seems that lawyers who were called to resolve disputes were referring when they had to judge following the equity.
But this influence of common law in Venice ended in the 14th century.
My thoughts about the issues engaged,are:
ReplyDeleteA)about the anti-semitic vision of the MoV,I’m fully agree with Vincenzo,because for me the test of Shakespeare cannot be considered anti-Semitic for several reasons:first,the author rapresent in his work not just a thought but the idea of society, the company that saw the Jews as a class to fight because they had a lot of money, and this enabled them to lend money, and after to request the twice. And with this beaviour the controlled part of society. Second you can’t consider Shakespeare antisemic, despite Shylock’s character. Shylok in the novel is not the category of Jews, but the greed represented by a jew; then the sentenced is not Jew but human greed, and the control that Shylock who wanted to have of the daughter .In fact, Shakespeare seems to condemn the attitude of Bassanio when he calls Shylock jew for offending and categorizing it.
B)about the role of fairness in our society, after a research I conducted,we can assert that in the provisions of the Civil Code force, the reference to equity changes if we refers it to the different meanings. In fact you can distinguish:
1) the fairness of interpretation, that in the event of failure to clarify the meaning of the contract, refers to the court, the task of interpreting operating a fair balance between the interests of the parties (Art. 1371). The judge cannot use equity except in marginal cases, just as it has been tried every attempt to apply other rules of interpretation, but in any case, to make the balance of interests, the court may not refer either to the criteria Subjective, nor extra values ordinem, but must remain, as already mentioned, within the logic of the contract.
2) equity corrective, which involves the balance between performance, can be found in the case of reduction of the penalty (Art. 1384), which can be reduced equally by the court, however, had regard to the interest of the creditor; similar situations are found on contract (art. 1664)
3) quantitative equity, that is determinative of the amount of damage, and then the compensation or allowance payable is laid down. 2047 for the damage caused by the incompetent.
4) the fairness of the financial statements, which hinted above, in art. 1374, where equity is a source of integration, is paid to the use, or the principles underlying the system or opposed to the jus strictum;
The latter reference regulatory approaches to the meaning of procedural fairness, which is considered by most of the authors, as a set of principles, , guidelines that go beyond the strict right, and their roots in an alternate sort: judge must give judgment according to law unless the law or the parties agree so request. in this way the judgment of equity held by the justice of the peace is posed in terms of needs and serves to simplify: in fact, the Fairness allows you to decide the causes of minor importance in a way faster than having a major problem , solved stricto jure.
Although not Aristotle the "father" of the expression fairness, it is believed that he was the first philosopher to offer a contribution to the history of philosophical thought marker.
ReplyDeleteIn the Rhetoric Aristotle conceives equity (epiekeia) as the "form of justice that goes beyond the written law."
It looks like equality and, above all, to justice (dikaiosyne), but with regard to the nature of justice and equity "it is clear that in an absolute sense are not the same thing, the company is in a constant oscillation between legal justice and equity.
Cicero said: Summum jus, summa iniuria. The phrase indicates that a critical application of the law, which does not take into account the circumstances in which its rules must be applied in each case and the purposes to which they should aim, can easily lead to committing injustices or even constitute a means to perpetrate the ' injustice.
In this legal rule is contained a great truth.
It is yet another proof of the recent judgment of the International Court of Justice in The Hague ruled that the non-liability for damages of the Federal Republic of Germany for the crimes committed by Germans against Italians during the last war, even if it came to war crimes or crimes against humanity and, consequently, the illeicità of judgments of Italian courts, or future processes that were started, having as their object the request for the payment to the German government for the damages suffered by the victims still living or by the heirs of the same.
In fairness law allows the judge, a decision released by the application of an abstract rule, and instead worked in his conscience, in the so-called trial on an equitable basis, in Latin legal, equitable or ex aequo et bono.
The judgment in equity may be established by law or by the parties even in the so-called arbitration.
The strict application of the law to abstract all the infinite possible cases of real life could in fact determine, in individual cases, situations of substantial injustice, which is why, under certain conditions, the legislature allows the judge to create and apply a rule for that purpose.
The doctrine of equity, therefore, speaks as "justice of the individual case", or rather "rule of judgment on the individual case.
The position Of Jews in Shakespeare's time was every difficult: in fact England had expelled all of them for being " Jewish "! This act dated back to1290, when King Edward 1 issued the Edict Of Expulsion. In general they were accused of killing Jesus but also because they charged interests ( usury ) on loans.
ReplyDeleteThat was the logical consequence of the fact they were prohibited to do any form of work by the law Of the country. They were only allowed to lend money , which was not allowed to Christians, according to the Bible. Economically Jews played a key role in the country.
It is said that Shakespeare never met a Jew and his knowledge of them was based on public opinion at the time .
In the Merchant Of Venice the writer did not condemn usury but used it to demonstrate the dramatic effect it had on a moral dilemma.
The character Antonio in the play borrows money form Shylock even though he disliked the man and did not want to pay him back since he was a Jew.
In modern termos equity is " justice according to principles of fairness and not strictly according to formulate laws. It is so difficult to sede the line of demarcation between equity and law. Shakespeare focused on mercy.England's judicial system of the time consisted of two separate courts, one for equity and one for law: this remained relatively intact until the 19th century.
The court of equity handed all casse which the English system filed under "pain and suffering": this court would compensate much like what Shylock was forced to surrender .It is also important to remember that in Venice laws were different in structure and organization.
English society in the Elizabethan era has been described as "judeophobic". English Jews had been expelled under Edward I in 1290 and were not permitted to return until 1656 under the rule of Oliver Cromwell. In Venice and in some other places, Jews were required to wear a red hat at all times in public to make sure that they were easily identified, and had to live in a ghetto protected by Christian guards. On the Elizabethan stage, Jews were often presented in an Orientalist caricature, with hooked noses and bright red wigs, and were usually depicted as avaricioususurers; They were usually characterised as evil, deceitful and greedy.Shakespeare's play may be seen as a continuation of this tradition. One interpretation of the play's structure is that Shakespeare meant to contrast the mercy of the main Christian characters with the vengefulness of a Jew, who lacks the religious grace to comprehend mercy. Similarly, it is possible that Shakespeare meant Shylock's forced conversion to Christianity to be a "happy ending" for the character, as, to a Christian audience, it saves his soul and allows him to enter Heaven. Regardless of what Shakespeare's own intentions may have been, the play has been made use of by antisemites throughout the play's history. One must note that the end of the title in the 1619 edition "With the Extreme Cruelty of Shylock the Jew..." must aptly describe how Shylock was viewed by the English public. The Nazis used the usurious Shylock for their propaganda. Shortly after Kristallnacht in 1938, "The Merchant of Venice" was broadcast for propagandistic ends over the German airwaves. Productions of the play followed in Lübeck (1938), Berlin (1940), and elsewhere within the Nazi Territory. The depiction of Jews in literature throughout the centuries bears the close imprint of Shylock. With slight variations much of English literature up until the 20th century depicts the Jew as "a monied, cruel, lecherous, avaricious outsider tolerated only because of his golden hoard".
ReplyDeleteThis week in our class we met one of the most important connections between law and humanities: law and literature. Accompanied by the hand by Prof. Gialdroni we discovered three different strand: law in literature, as literature and about literature.
ReplyDeleteAnd, as Prof. Gialdroni has been for us as Virgil to Dante, our reference point for the series of lectures was William Shakespeare's "Merchant of Venice". Through the MOV, and also thanks to the theatrical performance of my colleagues, we have had the opportunity to understand the historical period, the social context of the time (even with its terrible implications), and the legal point of view of all this, as well as the different model of legal order in force in that period.
Focusing on the unjust situation of the Jews in that historical period, and the effect that daily this had on them, but also on all others, we have used “The MOV as a mirror of this exclusion” but also a mirror for us, for today, for tomorrow. I was very impressed from a concept exposed by Prof. Gialdroni: without considering the question of racial discrimination, Shylock is really a complex character. What we see, at the first reading, it’s a bad man, an antagonist, a orrible figure. But Shylock, first of all, is a victim of himself. Of the other also, because his is a position of discrimination, but, you know, the hatred always born from pain. I never believed in absolutism, and this story confirms my theory. There are not good only good or bad only bad. If from pain doesn’t come forgiveness, this can only generate hatred.
At the end of the lessons our teacher left us with a question about the relation between strictum ius and equity. The comments of my colleagues, above, explained it in detail, I just want to contribute with some new element. I think Prof. Skeel had mentioned, it would be interesting studying another very important literary work, it giving the reader a legal point of view: I'm talking about Charles Dickens' novel "Bleak House" a sort of parody for procedural time-limits, excessive and absurd for each trial before the Court of Equity. Prof.ssa Gialdroni reminding us that certainly the strictum ius is a guarantee, but it tends to be not applicable for each particular case. On the other hand, I have to mention Muratori, because canonical equity is a concept very interesting, "Non debbano i giudici col pretesto dell'equità assassinare la giustizia".
I would like to focus my attention on Portia’s fourth Act plea and try to find in her clever and refined words the potential clash or combination (depending on the viewpoint of course) between “strictum ius” and “equity”.
ReplyDeletePortia’s pleading has at least two levels of meaning: a moral and a literal.
The latter reflects clearly a conflict between the courts of law and of equity (chancery) in the Elizabethean England.
There is a closeness between the Chancery’s preoccupation with equity and conscience and Portia’s eloquent statement of the principles of a Christian mercy.
The legal manipulations in Portia’s plea are entiererly in accord with those of Shakespeare’s world, when bond were not easily “upset on rational grounds”.
If you have a look to the text we could find out some traces of this law and equity’s recalls.
In the Act I, for example, Shakespeare precisely enumerates the conditions of the bond signed by Antonio:
“This kindness will I show.
Go with me to a notary, seal me there
Your single bond, and—in a merry sport—
If you repay me not on such a day,
In such a place, such sum or sums as are
Expressed in the condition, let the forfeit
Be nominated for an equal pound
Of your fair flesh, to be cut off and taken
In what part of your body pleaseth me”.
Shylock is about to lend three thousand ducats, that Antonio has to return in three months from the date of Shylock’s loan.
Before notary his contract stated in a bond under seal, a bond that, will become technically actionable in the Duke’s ( there is a clear connection to the Queen Elizabeth’s) court of law.
Legally significant are the words, “a merry sport” and the word “express”.
At the beginning of the great court scene, the Duke addresses the court in a term of equitable jurisprudence and employs the repeated word, “MERCY” that as the trial progresses gains an accretion of meaning and force.
The Duke uses also the Chancellors’ technique by attempting to restrain Shylock’s action with an “in personam” directive.
The Duke heads over a court of law, which must interpret the ancient Law of Venice (the State).
Bassanio offers to return double amount of the original loan again calls attention to Shylock’s lack of real damage:
“For thy three thousand ducats here is six”
And more,
“The plaintiff’s scornful reply loftly refuses six times six thousand ducats”.
But the “letter of the law” (as we know the so called “strictum ius”) reaches a sort of impasse when Portia enters the scene.
Portia appears disguised of an expert learned doctor to the Duke’s court and not as an attorney and this certainly reflect informalities in the early practice.
Portia in the very beginning of her action wants to assure herself of the facts of the case and only after this accurate exam she figures out that only an equitable remedy can save Antonio:
“Then must the Jew be MERCIFUL”.
Portia’s great speech, implied with Christian recalls, urges the mitigation of the strictures of justice.
ReplyDeleteBut Shylock on the other hand refuses the equity’s lessening for the case; he refuses a second plea for mercy and he charges Portia to “proceed to judgment”.
And now that the defensive technique based on equity has failed, Portia shows her cleverness in bypassing an unjust suit at law, whose conclusion must be a personal inequity.
Portia reverses her own equitable plea standing on the letter of the common law and on the exact terms of the bond.
The legal principles which she uses is that of “Expressio unius est exclusio alterius: one expressed thing excludes another”.
This defense is not accidental because the first use of the word “express” is in the bond.
And from the bond itself Portia extracts her conclusions:
“It is not so expressed” and “The words expressly are ‘a pound of flash’ “.
At this time Shylock (clearly returning on his steps ) stands on the contract he has previuosly repudiated:
“Give me the principal and let me go”.
But it is a general rule of equity courts that a person cannot retain to himself the advantages of a contract and in the main time repudiate it.
Portia now uses another instrument of justice; the law of the State itself contains a great penalty-namely, death to one who plots the shedding of a Christian blood.
And because in the court no surgeon is present Portia decides that Shylock intends Antonio’s death.
We have to say that Shylock is not on the trial trying to attempt to a Christian’s life but in this case Shakespeare decides to conclude this last scene in a very dramatic way.
Portia uses the law of the State as a reinforcement of her “turning the precedent” of the common law.
The introduction of the Venetian law in the play set in motion a grotesque reversal : that of Shylock’s beginning for clemency.
Everything seems to be against the Jew now and the initial situation is clearly upside down
In fact,at the end,under the Venetian law described in the play Antonio is about to receive one-half of Shylock’s goods and the State to the other half (which we have to say the Duke refuses).
With Portia’s plea and by the end of the fourth act we can easily find out the “strictum ius” and “equity” ‘s edges and uses.
ReplyDeletePortia’s speech follows one non unique course of action: her cleverness is clear in using the letter of law combined at the same time with what we called “equity”.
But this combination in a certain point becomes a sort of double-edged sword: when Portia tries to highlight the importance of the merciful attitude in applying the bond’s terms, Shylock refuses to this equitable relief referring purely to the bond’s content.
But when Shylock wants to refer to the contract and sustain that as a written bond seal by the parts is strictly suitable, Portia overturns the meaning of the same bond focusing the literally sense of the words.
At this point we may ask ourselves how and why Shakespeare places his play in Venice and how Venetian law is connected with the Elizabethean coeval legal system.
The conflict between the courts of law and the Court of Chancery is clear and we can notice that Shakespeare uses legal terminology and through a near “burlesque of the bitter forfeiture clauses” that were a type of legal inequity.
But another clear dichotomy might be related to this conflict: the metaphorical and continuing fight between the Hebraic and literal justice and the principles of the Christian mercy.
The Chancellors are often ecclesiastics and their decisions and thoughts are really bonded to the Christian fundamentals.
So Portia with her plea,turning against the literal law, defeats a common-law principle; heleped by the Venetian law Portia sustain the equity ruling and executes this ruling through an “in personam” decree.
Talking about Law and Shakespeare we could focus on very different items, but what catched my attention is the connection between strictum ius and equity, in the Merchant of Venice as in Legal orders.
ReplyDeleteAccording to Celso’s sentence “ius est ars boni et aequi” we may reflect on how a Legal order would be really “aequm”.
It's a paradox that the Legal order that take a cue from the Roman system, based on equity, in order to apply the law, is the Anglo-Saxon Common law, instead the Italian legal system, has become the son of the French civil law. I think the legislative system has a major limitation in the written law and in its interpretation. The risk it to give more importance to single words or articles written by men (and you know men can be wrong) and not to Justice in the particular case. Shakespeare with Portia’s famous speech wants to elevate the right purely technical to something higher, divine in a sense and also very human, in the way mercy is begged. Shakespeare’s perspective seems inconsistent as, if on the one hand it seems that the legal case treated in this play is completely oriented and solved thanks to the use of equity, on the other hand it is a fact that the technique that Portia uses to accuse Shylok is nothing but a manipulation of the literally sense of the contract, so far from being inspired by a superior idea of Justice The author seems to recognize this concept of fair Ius, but he is also kidding the readers showing how men can manipulate the law to their liking. I believe that the close relationship between strictum ius and aequitas is part of an issue out of time and that the doubts we have can hardly find a permanent solution. This is the tragedy.