In re Attorney General for Canada; ex parte Heinrich [2003] 1 C. of Sh. 1
Matter No.…………1/2003
Hearing Date………18/03/2003
Applicants 1: Diana Kyles & Kristin Lucas
Respondents 1: Jennifer Drouin & Kathleen Murphy
Applicants 2: Gefen Bar-On & Pierre-Olivier Savoie
Respondents 2: Anurag Jain & Dara Lithwick
Justice Manderson
The question before us today pertains above all to identity and the sense in which it remains possible to speak of one. Who is Karl Heinrich? Is he the man who once worked as a senior guard at Sobibor and Chelmo, names that will live in infamy? Is he still that man, some fifty and more years on? Times change and so do we. At what point is it right to continue to attribute past conduct to present bodies? The nature of identity is fraught philosophically, and has become increasingly so in the past several generations, as the social construction of selfhood has become more and more apparent. Identity is a narrative; an artifice that permits us to connect into a pattern of meaning the many different parts we play, the distant child, the foolish youth, the weary soul, so that it makes sense to us and to those around us. Identity is the myth that makes of Jacques’ “seven ages of man”31 one story.
But the law – any law – requires a stronger commitment to identity than that. There is no law without responsibility, no responsibility without agency, and no agency – which implies and must imply a course of action understood by the actor as having meaning and consequences across time - without some enduring sense of identity. It is this sense of responsibility over time and into the future that makes us, as Kant insisted, moral beings. In the first place, the respondents in this case have sought to deny to their client, Mr Heinrich, any agency in the war and therefore deny to him the sense of having an identity. I mean by this that the ideal of obedience to which Heinrich defers – the principle of “following orders” originally articulated, in this context, by Adolph Eichmann – is precisely a defence of the virtue of abandoning one’s own sense of judgment for that of another, whether that of a superior, a superior officer, or a superior regime. The word derives, to be sure, from the Latin audire meaning to listen, but it implies something rather more than mere comprehension. To obey requires a kind of action in response to or ob-, which is to say, ‘on account of’, our having listened. So to obey is to submit to the decision of another, regardless of our own judgment, and to comply with their instructions simply because of the fact that they have been issued. It is therefore an act of conscious submission that places our human identity – who we are, what we want to do, what we judge – in suspended animation.32 An obedient actor is a machine. The irony is that our own culture, and most particularly our legal culture, takes this obligation to obey very seriously indeed. But we cannot avoid the grave moral implications it imports. Every demand for obedience is nothing less than a subjugation of our own capacities, whether for good reason or ill, to the agency and identity of another. Certainly, society could not exist unless we authorized someone else, in many different situations, to make binding and conclusive determinations on our behalf. A recognized legal judgment often gives rise to just such a presumption of authorization. The question for this legal system, as for any, is at what point there ceases to be a good reason to place our selfhood in escrow, whether the origin of the claim is a legal structure or otherwise.
Secondly, the respondents appeal to the passage of time since that war to suggest that he is no longer a man who can be punished for the past. The Attorney General’s decision is couched in terms of the age and ill health of the defendant, and this aspect of the case is articulated as quite distinct from whether his behavior was criminally wrongful. But this could hardly be a reason, in and of itself, if Heinrich had committed these acts last week. The law does not vary its jurisdictional intensity in inverse proportion to one’s bodily integrity. So it seems to me that the plea to senescence and infirmity, even if it falls short of an appeal to senility itself, must assume that there is some material significance to the pastness of the past. It is not simply Heinrich’s age and health that are in issue here. It is that he was old now, and that he was young then. Perhaps it is also that he is sick now, and he was healthy then. To be sure, the respondents did not articulate this issue as clearly as they might, but the sense of a responsibility that retreats with and because of the passage of time, and of the depradations of time, must lie back of their argument. A palpable air of change and loss and mortality grounds their plea. Fifty years have gone by. The court should muster what mercy it may for, look, the court of time shows none. There is a sense, then, that as we get older and closer to death, our responsibility for our former conduct gradually diminishes. Mercy is just this: drawing a line, starting again, moving on to something newborn and innocent. It is a virtue that asks us to recognize the human capacity for redemption and reinvention. It makes a virtue out of change and the inconstancy of our identity. And the question for this legal system, as for any, is how and when mercy as distinct from justice ought find a home within it. To what extent are we to let the past stay past.
Respondents have sought to make Heinrich, literally, an outlaw – through an argument built on obedience in the first place and drawing on Henry V, and mercy in the second place, drawing on The Merchant of Venice. Identity is suspended by the first argument and fractured by the second. The question is: will the law consent to take away this man’s identity – by which I mean precisely his capacity for responsibility – in this manner? Can it do so and still remain law?
It is not just the respondent’s identity that is at stake. It is this Court’s. With this case, my learned colleagues and I begin the process of constitution-building, and how we go about it matters. More than this, the question of identity is central to the task of interpretation. We must lay down guidelines here as to the manner in which the disparate body of work that comprises ‘the law of Shakespeare’ is to be read. Already the key word has been smuggled in: body. No matter the actual origins or authors or purposes that incited the production of the Shakespearian corpus, in order to interpret it we are required to treat it as a whole, as a coherent story: as a body of literature, or of jurisprudence, or of both. Mythical or not, no serious interpretation is possible without such an overarching narrative.
The question of identity is necessary in order to meaningfully undertake any interpretative exercise, but it is particularly important for law. Law itself must have an identity – a narrative that ties together its parts and allows them to be read as a story of becoming. Otherwise, as the arguments of the applicants and respondents in this case make abundantly clear, we are left with only isolated instances, each contending against each other. Meaning requires that our law be provided with an identity that allows its identification to proceed, just as responsibility requires that our subjects be treated as having identities of their own. The very concept of obedience and respect for law – placed by the respondents here as somehow opposed to the idea of moral responsibility – asks of citizens that they too should understand law as more than a wilderness of instances, but rather as the embodiment of some coherent story. Only thus can it mean anything to ask of citizens that they respect the law.
As Justice Yachnin himself puts it in his concurrence,33 the question is: how is this court therefore legitimately to impose an interpretative model that allows the legal materials here to form an identity, a narrative that will invite the assent of the community from whom all legitimacy ultimately derives? This is not purely a problem with the law of Shakespeare. Far from it. Indeed, the English common law itself is an altogether more disparate body of materials, united neither in time, thematics, ideology, style, nor authorship. It is, if I may recall Pirandello for a moment, several characters in search of an author.34 Still we speak about the ‘law’ as if it too had an identity, a story: a trajectory. Why? Because without it, law would be an outlaw to itself.
Law begins life as pure fiction and pure theatre: a claim to an unfounded coherence, and a vector that unites the ‘real world’ with some ideal state of affairs that it depicts. Jurisprudence is narrative, as Robin West said. Ironically, the works of Shakespeare are much less fictional than any other legal system known to this court. They depict the muddied, messy, contingent and contradictory world in ways that categorically resist simplification or moralizing. And the characters within Shakespeare that themselves attempt to extract ‘rules’ of life and simply to apply them positivistically are, by and large, portrayed as figures of folly or fun. Think of Polonius with his shopping list of morals;35 think of Shylock with his obsession with the literal. A Daniel come to judgment!36 – hardly. Embedded within the ‘law of Shakespeare’ is an initial caution: the world is not a Code and we do injustice if we try to make it one. Legal systems have typically begun with the arrogance of the formulation of manifestoes and commandments. The law of Shakespeare must begin with a proper and just humility.
It is the origin of law in this narrative social endeavor that Robert Cover insists upon, and the respondents were right to remind us of it.37 Their mistake is then to attempt to yoke the implications of this perspective to the literalism of HLA Hart. I do not know whether I have ever seen an odder couple. Respondents argue that the relevant community that we are to take into account in order to determine the meaning of the law of Shakespeare is the community of characters within the plays themselves.38 In the first place this thought experiment asks us to treat Shakespeare’s characters as if they were ‘real people’ leading real lives, a process that would no doubt lead this court eventually to have to rule on the tastes and beliefs and histories of the characters when they are off stage as well as on. This is not Shakespeare: this is Tom Stoppard,39 and he is not the law in this jurisdiction.
The naturalistic fallacy, as it is often called, occurs elsewhere too. Respondents argue that when Antigonus is eaten by a bear in The Winter’s Tale,40 this was not ‘law’ for the purposes of this court, but rather ‘divine will.’41 Elsewhere they attempt to rule the dictates of morality out of court, so to speak, too. Such an approach is an attempt to look for the law as it was experienced by the characters themselves – the law in Shakespeare. But this limits our judicial freedom inappropriately, as I understand my learned colleagues on the bench to have decided. There is no god in Shakespeare but Shakespeare, no bear at all either divinely ordained or otherwise, no morals or personages of any kind or description. There are only words, and these words now form our law – the law of Shakespeare. Understanding these words requires of us judgment, whether one is a judge or a literary critic or a theatre-goer, and a good judgment will provide textual evidence as to the way in which Shakespeare’s texts provide, in its action or language, its speeches, characterizations, and plots, evidence to support that judgment. But the judgment must be ours. My learned colleagues, we are judges and we must judge. Neither god, nor Shakespeare, nor any bear can bear it for us.
Secondly, the suggestion that we should treat the characters themselves as the relevant interpretative community will lead us down the road to another fallacy, that of originalism. It is clear to me that this court is far less capable of surmising the ‘intent’ or ‘values’ of either characters or author in early modern England than in our own society. How could any such claim be anything other than the sheerest guesswork? We are aware that the Supreme Court of the United States of America, a body of almost comparable jurisidictional mandate to our own, believes otherwise, finding in its own distant past a legitimacy and a certainty to their interpretative judgments that they cannot find in the present day.42 Of course this is utter nonsense and the Supreme Court’s adoption of the doctrine of original intent is a grievous error that I hope this Court will never follow.43 The reason I imagine that that Court has been attracted to the doctrine is not that the past was any more just or certain than the present: it is only that its complexities have receded from us; generalizations are easier to come by; and those who might disagree are no longer around to express their dissent. So original intent protects the court from criticism. The court of Shakespeare, I hope, will engage with its task without such timorous legerdemain.
Shakespeare is a text, an assemblage of ideas and values and voices from which we, as a court, must try and extract meaning: it is a dimension, and our responsibility is to the text: all of it and only it. But it follows from the above remarks that the relevant interpretative community can be no past community, either fictional (as the naturalistic fallacy would have it) or real (as the originalist fallacy would have it). Thirdly and finally, then, there is only one community for which the interpretation matters: ours. In Constitutional terms this is the doctrine of the “living tree” contended for by the applicant, and a commonplace in the constitutional literature: McCulloch v Maryland44 offers an American example, Engineers45 an Australian one.
Let us recall that the point of an interpretative narrative strategy lies in its capacity to secure the assent of the ruled to our decisions, to allow them to amend their conduct or respond accordingly: as Cover says, “to submit, rejoice, struggle, pervert, mock, disgrace, humiliate or dignify.”46 The extent to which it is law is the extent to which it is respected as law, and this in turn will depend on the extent to which our judgments of these texts match the best judgments, all things considered, of those who we ask to attend to them. There are not two communities here, the judges who read the law and the citizens who read the judges (or three, since lawyers typically mediate between the two): the interpretative exercise is mutually implicated. This too is a feature of all law and not just the developing jurisprudence of Shakespeare. If we look at the origins of the English common law, or the European civilian tradition, both of which occurred in the late middle ages, we discover acts of imaginative fiction-making that claimed a hold on their communities precisely because of their abilities to justify their interpretations in relation to the understandings and the needs of the communities in which they were embedded.
The trappings of power and authority and force were a consequence of this social allegiance and not a cause of it. And often a very late consequence indeed: there was no regular police force in Europe until those of Bobby Peel enacted in 1829.47 The failure to understand the nature of the interpretative task in law has led scholars from John Austin to HLA Hart entirely awry. They have treated law as a ‘command,’ or imagined that the attitude to law of its citizens was largely immaterial to its force.48 This is the kind of error that has, in many parts of the world, led the law itself into utter disrepute. Is the law just a technical device? Is it an obscure rite? Is it an instrument for legitimation and corruption? Law’s redemption from this grave notoriety must begin as it has always begun – by seeking to earn the respect of the governed by the quality and care of our judgments. This task begins, above all, with the interpretative choices we make as a judiciary.
Where does this get us? It suggests an alternative interpretative model based upon the concepts I have outlined above: narrative, responsibility, and social relevance. These are all variations on the theme of identity. Narrative is the project by which this law will come to have an identity of its own. Responsibility is the project by which this law will seek to acknowledge the identity of its citizens. And relevance is the project by which we create an identity between the two: the identification of a legal system by and with a social community is what may eventually entitle us to reward the judgments we make today with the high honor of calling them law. So law itself, as Derrida points out, is at every moment a fiction whose entitlement to that name must await the lengthy judgment of posterity.49 This too is a principle of humility that, in reminding us that our judgments have yet to be judged, many courts around the world would do well to recall.
While Cover bears close attention as this court grapples with the question of the origin and nature of meaning, he says little about the phenomenology of judging itself. And here it seems to me that the theory which parallels most closely the arguments I have suggested, is that of Ronald Dworkin. His idea of “law as integrity”50 captures these aspects very well. For Dworkin, the judicial record “matters … very much but only in a certain way.”51 It is not the attitudes of the past per se that we need to defend, but the texts thus produced understood as emerging chapters in a “chain novel” that form a narrative of which we can be proud.52 We respect the judgments of the past because they have helped to make us who we are: no account of contemporary values can fail to take account of beliefs strongly embedded in them. Our respect for precedent comes from our respect for our identity: it expresses a recognition of who we were. But at the same time, the way in which we read these past judgments will depend on our understanding of our current values and problems, and asks of us that we tell a story in which our identity has changed and developed over time. Our interpretative practices come from our need for a narrative that seeks to relate these precedents to an over-arching story of society “worth telling”: it expresses a recognition of who we are and will be.
As is often said, every generation re-imagines Hamlet according to the tenor of the times53 – the nature of a classic is precisely its capacity to flourish under conditions of this interpretative stress. And every generation, according to Dworkin, will read its law differently too. Each society will read these texts as a story illuminating where they have come from and where they are going. You might think of this as a travesty, but only, of course, if you thought that there was an objective ‘interpretation’ from which other readings differed. But this is not the case: there is no ‘there’ there. The history of the common law provides compelling evidence of the way in which the meaning of a particularly significant precedent emerges only in the work of later judges, reading and reading in in novel contexts. Interpretation is archeology – in reverse.
Indeed, Dworkin’s integrity fits much better with the law of Shakespeare than with the Anglo-American common law. In the first place, the common law as “chain novel” suffers from the undeniable difficulty that very many authors with profoundly different motives and ideas have contributed to it. Reading it ‘as if’ it were the product of a single mind is quite artificial. But the law of Shakespeare is, to the best of our knowledge, the product of one mind, one identity. It already has a coherence that is more than notional. Secondly, Dworkin ascribes to the judgments of the Supreme Court or the House of Lords a constitutive force over our very identity on which he would seem to depend if his theory of the social power of the judicially constructed narrative is to convince.54 From the claim that these institutions really are the “capitals … of law’s empire,”55 legal pluralists like Macdonald might demur.56 A better case can be made, as Harold Bloom, for example, does, that this constitutive and narrative power is located in writers like Shakespeare.57 Compared to the linguistic, nationalistic, artistic, and philosophical contributions of the plays in particular, the role of the common law in the formulation of our identity must pale. If we are searching for a body of texts that we could single out as having constituted our identity, and as continuing to form a necessary resource in the narrative we develop about ourselves and our societies, we could not go past this body of work.
I have spent such time on these questions so that we may proceed on a sound interpretative basis. It will not do to interpret the law of Shakespeare without an eye on the trajectory of meaning that unites his time and ours. Neither will it do to cite isolated passages from the plays as if they were themselves conclusive. We are searching for a unifying narrative of principle. As opposed to the statutory enactments of a legislature – and this is a key distinction in our emerging interpretative methodology – we cannot give to every line in Shakespeare equal value. We need to be able to judge the significance of passages no less than their meaning. In judging the merits of a particular argument we have to appreciate the importance of a particular discussion in a particular play, the status of that play in the canon itself, its social reception, and so forth. In particular it seems to me that the strongest argument will be that which identifies a certain passage or dramatic moment as being central to the resolution or understanding of a play, and will then provide us with substantial surrounding interpretative material to enable us to make sense of it. The first question is one of identification: a sense of determining the play or plays that best speak to the themes before the court, as well as the elements or characters or scenes within those plays that allow us form justifiable judgments about the other characters or scenes. In relation to the present legal question, it is evident that Henry V and The Winter’s Tale meet this exacting criteria. It is my judgment that it is to these plays that we ought to look to determine the law in this matter.
We cannot avoid, however, the problem of choice of law, as the comparativists put it. Each play refers to another, each law to another, each prior to the other, and no foundation for the choice between them. The undecidable is walled up there, impenetrable as Kafka’s “gate of the law.” Renvoi say the lawyers, envoi the philosophers, autrefois dit Derrida’s 徱ڴéԳ and aporia.58 The equal impossibility of choosing and the necessity to choose is the ineradicable bottom line of judgment. “You must go on, I can't go on, I'll go on,” are Samuel Beckett’s words for the paradox of our time.59 Dworkin’s failing lies in imagining that the narratives of the law could ever be unified, if only a Herculean judge had time and resources enough to complete the task.60 This seems quite unlikely. Certainly in Shakespeare, it is clear that different characters within plays and different plays themselves have taken quite different positions on the virtues of obedience to law as against responsibility to conscience. This is what underlies very reality of Shakespeare, his refusal – unlike a legal fiction – to speak in only one voice. How then are we to choose between them?
The second step is a question of aesthetic centrality. Is the passage in question significant to our understanding of the play as a whole? This is what Dworkin means when he says that we have to decide whether certain precedents properly understood “fit” the narrative of the law (or in this case of the play) considered as a whole.61 To be bound by the narrative of the past is not to be bound by every bit of the past. We are committed to being a “community of interpretative principle”, which is to say, committed to upholding what in a similar and equally compelling moment, was called by Justice Brennan of the High Court of Australia, the “skeleton of principle”62 of the law: but not to every node and ganglion on it, as he goes on to make clear:63
It is not possible, a priori, to distinguish between [passages] that express a skeletal principle and those which do not… Whenever such a question arises, it is necessary to assess whether the particular rule is an essential doctrine of [the play] and whether, if the rule were to be overturned, the disturbance to be apprehended would be disproportionate to the benefit flowing from the overturning.
As Dworkin himself insists, we cannot ignore central features of the narratives before us. But new interpretations remain possible, as long as they demonstrate a coherence with the text as a whole as we now understand it, and with the values and principles that we believe that those texts have themselves encouraged us to develop.
The third step is a matter of evaluating those moments of principle that seem to speak in two voices, both within and between plays. It is here that the idea of a narrative that speaks to a community of interpreters – us – and that allows us to see Shakespeare’s project as embedded in our own, will assist us. In The Winter’s Tale, the legal judgment on Antigonus’ awful obedience is tolerably clear and in favor of the applicants.64 In Richard III, it is no less the case that the violence authorized by the King is meant to be interpreted by the community who view it as a matter of condemnation and not by any means a demonstration of immorality or license.65 The idea of a narrative that binds our judgment to the action and language of the plays is precisely what allows us to judge characters as having behaved wrongly, or to read certain speeches ironically.
The jurisprudence of Henry V is more difficult to decide. Henry’s power as a King – including the powers of cruelty and of conquest – is skeletal to the play’s narrative form, and it is on this point that the arguments of applicant and respondent differed substantially. One side presses Henry’s apparent mandate of murder and pillage in times of war, the other references his insistence, at another moment, on treating the French with civility and restraint.66 But again it is simply not good enough to refer to facts about the plays as if that solves our interpretative problem: it most assuredly does not. The fact that bad laws are made and obeyed in Shakespeare does not tell us how we, as interpreters, are to judge them. Which matters more and why? The answer must come down to our reading of Henry the King himself. Is he well-tempered or tempered like steel?
It is true – and it is a passage that might have been more strongly pressed by the respondents in defence of Heinrich’s obedience to authority – that the soldiers with whom the King mingles on the eve of Agincourt conclude that “if our cause be wrong, our obedience to the King wipes the crime of it out of us.”67 That would appear to be precisely the argument made by Adolf Eichmann.
But not, I think, by the King. He does not agree; he rejects the consequences of the argument; he insists that “every subject’s duty is the King’s; but every subject’s soul is his own.”68 We must conclude then that the soul is not, in the law of Shakespeare, subject to subjection. And this implied limit is sustained by the overall trajectory of Henry across several plays. Here it is clear that Shakespeare’s narrative concerns the acceptance of responsibility as a matter of sacrifice and a matter of justice. The dismissal of Falstaff and the movement from Prince Hal to King Harry is precisely about the burdens of office and its irreducibility to formulae. Yet the play also insists on a relationship between King and subject. The parallels and equalities that are to be drawn between the gentlest and the vilest of social conditions is built into the structure of the play, and is to be found dramatized most crucially when the King mingles with his soldiers on the eve of Agincourt, and then in the famous battle speech of Act V Scene ii – “we few, we happy few, we band of brothers.”69 This is the very climax and legitimation of the play. It is the existence of this relationship and the acceptance of these responsibilities that justifies the King’s claims on his men. “His cause being just and his quarrel honorable” as King Henry insists to his men, is the precondition for the exercise of legitimate authority.70
This can hardly be said to apply in the instant case. It is most certainly the case that the justice of Henry’s cause might be hotly disputed. Indeed it is probably right to describe his unprovoked invasion of France, as Justice Yachnin does, as “literally imperialistic.” Nevertheless the king’s commitment to justice as a legitimating ideal, and his insistence on binding his subject’s to him in its terms, never falters. The very image that the play presents is of a young man coming to understand the demands that justice and responsibility make of him, and of a young king who inspires in his subjects enormous loyalty by the relationship he establishes with them. But in the case of the Third Reich, obedience was demanded not on those conditions of justice, or honor, or connection (which we might decide, in retrospect, were not satisfied by King Henry’s claim to France): but on no conditions at all. The Nazi concept of obedience was absolute, not conditional; it brooked no dissent; it countenanced no dialogue or relationship between master and subject. It is not simply that the cause for which Heinrich served was not just or honorable: it is that these conditions were fundamentally irrelevant to the ‘legal’ claim made on him. Henry V may have been very much mistaken about the justice of his cause but it mattered to him and it mattered to the obedience he asked of his men. On the one hand, the Nazi regime acted in secrecy, shame, and deception in the development and realization of what came to be called the final solution. Whatever efficacious consequences they thought it would achieve, they did not believe in its honor or justice themselves. (Indeed, they thought that as far as Jews were concerned, the terms were irrelevant) On the other hand, they demanded from soldiers like Heinrich, obedience unquestioned and regardless. It is this idea of obedience, not Henry’s, that Heinrich now wishes our court to recognize as giving rise to legal obligations. This is a plea to instantiate as law the Shakespearean ideal of a villain, not the Shakespearean idea of a hero. We will not do so.
This is the first law of Shakespeare: our responsibility to law is dependent on our relationship to its makers. It is a relationship that must be marked by good faith; and it must preserve intact the soul – which is to say the identity and the capacity for the exercise of responsibility - of the subject. The exact parameters of this principle are no doubt not yet clear and future cases will be called upon to reassess its boundaries. But none of this was in any measure the nature of the Nazi regime which Heinrich served, with what alacrity we do not know. But if we are to protect his soul then we must recognize that he had an identity in this, and a responsibility in this, and demand therefore an accounting. He cannot hide behind the coattails of the lawful authority, because the law of Shakespeare as it emerges, in different ways, from each of The Winter’s Tale, Richard III, and Henry V, agree with Lon Fuller on this point: there was no lawful authority.71
The second law of Shakespeare is this: form and content ought agree. The interpretative methodology we pronounce today is not just that of the courts, as Hart or Dworkin seem erroneously to have concluded. Put simply, interpretation is responsibility and not simply obedience.72 As such, it cannot be delegated to someone else. Certainly this court’s reasoning, we hope, will be influential in future analyses of the problems before the courts. But it is logically impossible for us to make an order that they be obeyed or even respected. Such a claim would only demonstrate a poverty of imagination, a distrust of the community we serve, and a conceptual schizophrenia. Other courts may suffer from such failings. We will not. Laws cannot be followed without further acts of interpretation and as we have seen interpretation is a tricky business. If Heinrich had adopted the methodology we propose he would not have simply surrendered his identity to the conclusory reasoning of others. That would be to hold his own identity to ransom. As we reject positivism in our interpretative strategies in order to determine the law of Shakespeare, so we reject it in our understanding of other’s relationship to it.
This is not to say that Heinrich was free, either under the first law or the second, to do exactly as he pleased. We live in a world governed by discourse and mythology but not by fantasy. Behavior is constrained both by the instinct for self-preservation, and by the very real forces that legitimate certain actions, enforce others, prevent still more. But this is a question of power – sometimes the power of law, sometimes that of rhetoric, sometimes that of guns. We do not know what interpretative freedom was in fact open to the respondent, what choices he made or did not make. He is not yet on trial here: the order for mandamus seeks only to have a trial so these questions may be determined and judgment made. We grant this order.
Finally, the question of mercy is easier to confront, though it does raise a further question of interpretative methodology. The appeal to mercy is an appeal to the passage of time, both physically as it bears upon the respondent, and psychologically as it suggests a statute of limitations to identity itself. The matter is complicated, however, by the behavior of the respondent, whose secrecy over his own identity for the past fifty years hardly establishes his bona fides in this regard. Surely, as Justice Bristol argues in his concurring decision, the delay in considering these matters is due entirely to the respondents’ own conduct and he is estopped from bringing it forth in excuse.73 If precedent is required then Polonius provides it: “Above all to thine own self be true…”74 This is a cliché which is to say, in biblical terms, a proverb, or in legal terms, a maxim of equity. These maxims can be identified within the law of Shakespeare by their broad social recognition and their reception into the language in the past few hundred years. Like the maxims of equity,75 the maxims of Shakespeare are no replacement for the development of holistic legal principles, but they can guide this Court in the exercise of its discretion, of which the application of mercy is surely one clear instance. Heinrich has not been true, and cannot seek discretionary favors from the court.
If we move from maxim to precedent, it is evident that the relevant Shakespearean text on this point is The Merchant of Venice, and most particularly the dispute between Portia and Shylock on merciful as opposed to literal readings.76 What are we to make of this seminal passage? The complexity arises – and with Shakespeare there is always a complexity – because Portia for all her noble words on the quality of mercy,77 applies the law with a strictness that not even Shylock had supposed.78 There is much to be said here as to the relationship of justice to law, and of literal to purposive interpretations, in this dialogue, and we wait for later cases to explore it further. But we are interested here exclusively in the meaning of mercy. The applicants advance an ironic interpretation, suggesting that Portia’s “ironic literalism” stems from the principle that mercy is not given to those who do not show it.79 But here we run into a paradox, for Portia’s literalism would therefore be understood as ultimately dramatizing, for Shylock’s benefit, the injustice of untempered law. The meaning that we would take from this drama, as opposed to the mere fact of the decision that Portia rendered – and we have seen that the interpretation of the law of Shakespeare requires us to distinguish sharply between facts and meaning – must reinstate mercy as a skeletal principle in the narrative the play offers us. And, as Justice Yachnin has convincingly pointed out in his judgment,80 only this understanding can allow us to make sense of the mercy – or at least the interpretative inventiveness - Portia ultimately seems to show.
I might add, since it is a central interpretative principle that we must understand the narrative of a play within the context of its overall structure and design, that Portia’s own disguise throughout this scene serves only to accentuate the idea of surface versus essential readings. One might further note that the play of disguise and of mistaken identity is itself a central feature of the Shakespearean canon. As this court works, in future cases, towards an understanding of the meaning of identity as a normative principle and as an interpretative ideal, we will have to explore the Shakespearean understanding of the play of identity, of the cross-currents and cross-gartering81 between person and persona, with the utmost care. To say that the law is concerned with the nature of identity as myth and as reality, and with constructing certain figurations of that identity, is no more true of this law than any other. But we have the advantage in this court of being able to rely authoritatively on a rich set of resources dealing with precisely this question. We do not have to be satisfied with the thin claims and assertions about human nature that one finds in less fortunate jurisdictions.
The problem with the plea of mercy, as I see it, is not that Portia’s commitment to it falters. It is rather that mercy is essentially positioned as a consequence of justice and not a substitute for it. This much is inherent within the very idea of mercy; it expresses a kind of forgiveness. Elias Canetti remarks that “an act of mercy is a very high and concentrated expression of power, for it presupposes condemnation”82 (the same point has been made, in a legal context, by Douglas Hay83). Portia’s speech insists similarly that mercy is an act that Shylock alone is entitled to bestow or withhold: entitled because the justice of his right has already been established. Antonio confesses the bond. Then, says Portia, mercy “seasons” justice; it “mitigates the justice” of the plea.84 It does not deny power but confirms it. Yet this is not in this case possible since we have not determined the very position of justice that would allow us to decide by whom and against what just conclusion mercy might be sought.
Mercy likewise then relies on identity: on an ownership of actions, acknowledged or established. For fifty years, the respondent has simply refused any such ownership. The court does not refuse to grant mercy, because it is not yet within its discretion to do so. I venture to suggest, but without deciding the point in this case, that it may never be within its discretion in a case like this. The bond, that tied together Shylock and Antonio in the Merchant, does not tie this court to Heinrich, but he to those who died at Sobibor and Chelmo, and their families and their friends. This court has no power, no jurisdiction, to forgive.85 The denial of jurisdiction – the recognition of the limits of the law – is the most important and humbling act of legal identification that any court has at its disposal.
I therefore hold in favor of the applicant and, by a unanimous decision, this Court issues the writ of mandamus against the Attorney-General requiring him to commence proceedings against the respondent Heinrich.
31. William Shakespeare supra n 26, As You Like It, Act II, Scene vii, 139-167.
32. See the discussion of obedience in Desmond Manderson, From Hunger to Love, 15 Law and Literature 87, 107-08 (2003).
33. In re Attorney General for Canada, ex parte Heinrich (2003) 1 C. of Sh. 1 per Yachnin J.
34. Luigi Pirandello, Six Characters in Search of an Author in Collected Plays (London, 1987).
35. William Shakespeare supra n 26, Hamlet, Act I, Scene iii, 55-81.
36. William Shakespeare supra n 26, The Merchant of Venice, Act IV, Scene i, 218.
37. Supra note 1.
38. Respondent’s brief (Murphy & Drouin) on file with the Shakespeare Moot Project.
39. Tom Stoppard, Rosencrantz and Guildenstern are Dead (London & Boston, 1968).
40. William Shakespeare supra n 26, The Winter’s Tale, Act III, Scene iii, 58.
41. Respondent’s brief (Lithwick & Jain) on file with the Shakespeare Moot Project.
42. See for example Harmelin v Michigan, 501 US 957, 975 (1991); Antonin Scalia, A Theory of Constitutional Interpretation (Speech at Catholic University of America, 1996); A Scalia, A Matter of Interpretation (Princeton, 1997). For further commentary, see also Jack Rakove, Interpreting the Constitution: The Debate on Original Intent (1990); Keith Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence, 1999).
43. See also the comprehensive critiques in Dworkin supra note 21, chapter 4; Mark Tushnet, Red, White and Blue: A Critical Analysis of Constitutional Law (Cambridge, Mass., 1988).
44. McCulloch v Maryland, 4 Wheaton 316 (1819) (United States Supreme Court), Marshall CJ.
45. Amalgamated Society of Engineers v Adelaide Steamship Co, 28 CLR 129 (1920) (High Court of Australia).
46. spot ref to Cover Nomos.
47. An Act for improving the Police in and near the Metropolis, 10 Geo. IV cap. 44 (UK)
48. Hart insouciantly remarks that such a attitude, though it might produce a citizenry “deplorably sheeplike” and lead them to the “slaughter-house”, would constitute a system of law nonetheless: supra note 12 at 114.
49. Jacques Derrida, Force of Law, supra note 23 at 961-67; Richard Beardsworth, Derrida and the Political (New York, 1996) at 101.
50. Supra note 21, chapter 7.
51. Id. at 227.
52. Id. at 228-38.
53. Harold Bloom, Hamlet: Poem Unlimited (New York, 2003).
54. Supra note 21, at 208-24.
55. Id. at 407.
56. Supra note 10.
57. Harold Bloom, Shakespeare: The Invention of the Human (New York, 1998).
58. See supra note 23; Jacques Derrida, Envois 1-256 in Alan Bass, trans., The Post Card (Chicago, 1987); Jacques Derrida, Différance 1-27 in Alan Bass, trans., Margins of Philosophy (New York, 1982); Jacques Derrida, Aporias, trans. Thomas Dutoit (Stanford, Calif, 1993).
59. Samuel Beckett, The Unnamable (New York, 1958) at 418.
60. “Call him Hercules”: supra note 21 at 239.
61. Id. at 229-30.
62. Mabo v Queensland (No 2), 175 CLR 1 (1992) at 29 (High Court of Australia), Brennan J.
63. Id.
64. William Shakespeare supra n 26, The Winter’s Tale, Act III, Scene iii.
65. Id., Richard III, is replete with State-sanctioned murder.
66. Compare the two alternative passages in Henry V
67. William Shakespeare supra n 26, Henry V, Act IV, Scene i, 131-32.
68. Id. at 175-76.
69. Id., Act IV, Scene iii, 60.
70. Id., Act IV, Scene i, 127.
71. Supra note 20 at 655-61.
72. See Desmond Manderson and Naomi Sharp, Mandatory Sentences and the Constitution: Discretion, Responsibility, and Judicial Process, 22 Sydney Law Review 585-624 (2000).
73. In re Attorney General for Canada, ex parte Heinrich (2003) 1 C. of Sh. 1 per Bristol J.
74. William Shakespeare supra n 26, Hamlet, Act I, Scene iii, 78.
75. See in particular Richard Francis, Maxims of Equity (London, 1727); and see also John McGhee, Snell’s Equity (30th ed) (London, 1999), Chapter 3; S.S. Peloubet, ed., A Collection of Legal Maxims in Law and Equity (Littleton, Col,. 1985).
76. William Shakespeare supra n 26, The Merchant of Venice, Act IV, Scene i.
77. Id. at 179-200.
78. Id. at 300-07.
79. Applicant’s brief (Bar-On & Savoie) on file with the Shakespeare Moot Project.
80. In re Attorney General for Canada, ex parte Heinrich (2003) 1 C. of Sh. 1 per Yachnin J.
81. William Shakespeare supra n 26, Twelfth Night, Act III, Scene iv, 20-52.
82. Quoted in John Ralston Saul, On Equilibrium (ref needed)
83. Douglas Hay, Property, Authority and the Criminal Law 17-65 in Douglas Hay, Peter Linebaugh and E P Thompson., eds., Albion’s Fatal Tree (London, 1977).
84. William Shakespeare supra n 26, The Merchant of Venice, Act IV, Scene i, 192 and 198.
85. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Harmondsworth, 1976); and Primo Levi, The Drowned and the Saved (New York, 1988).
Justice Yachnin
After lengthy deliberation—indeed, after having written two arguments in favour of the respondents (one of which was a rebuttal of Justice Bristol’s learned judgment for the applicants)—I have decided to reverse my verdict, to concur with my fellow justices, and thereby to produce a unanimous decision for the applicants. While my verdict is the same as that of my learned colleagues, however, my reasons are different. In what follows, I will explain this difference of opinion and suggest what bearing it might have on future cases. In brief, I contend that we must pay careful attention to the historically situated intentionality of Shakespeare’s works and must accord considerable weight to the underlying integrity of Shakespeare’s ideas as they have been developed and re-accentuated over time. The figure that here represents this double historicity of Shakespeare’s works, and therefore also the double historicity of the Shakespearean law, is Claribel—the princess in The Tempest whom we never meet but who is living nonetheless.
1. Reconsideration
I ruled in favour of the respondents in my provisional judgment because, in my view, no element in Shakespeare connects persuasively with our idea of “crimes against humanity.” The applicants and Justice Bristol have adduced Henry 5’s good treatment of the French villagers as a foundational instance, but (as I pointed out in my rebuttal) Henry is interested in the well-being of the French, not because they are human beings, but rather because he sees them as his subjects. The purpose of the war, after all, is to make good on the legitimacy of his claim to the French throne. From this point of view, Henry’s humane treatment of the people he is conquering is not in opposition to the inhumane war that he prosecutes, but rather is directly attributable to his imperialistic designs. Moreover, it is not true that early modern writers as a group were incapable of speaking about crimes against humanity (incapable, that is, because they had no knowledge of genocide). In fact, the slaughter of the Amerindians was every bit as heinous a crime against humanity as was the Holocaust, and it had been the subject of heated controversy for almost a century before Shakespeare first put pen to paper. The Spanish cleric Bartholomeo de las Casas denounced the slaughter in terms of an idea of the universal family of men and women in Christ. The war against the Indians was, in his account, a crime against humanity because it was a crime against God. It is, accordingly, not that Shakespeare’s particular historical context somehow prevented him from writing about crimes against humanity; he simply seems to have had nothing to say about the matter, not even in The Tempest. His apparent decision to ignore early modern crimes against humanity would appear to vitiate the claim that we must work to make his works relevant to modern issues (in order, that is, that we might produce law pertinent to the case before the court). The poor fit between Shakespeare and the case at hand in terms of the legal principle of crimes against humanity can be highlighted by imagining how Heinrich would fare in the Court of de las Casas: in that court, his culpability would be utterly and instantly transparent and incontestable.
I also found for the respondents in my original judgment because, in my view, Shakespeare sets a premium on political obedience—not blind obedience to be sure, but obedience based on the subject’s sense of the value of the integrity and stability of the structure of rule. That is John of Gaunt’s position in Richard 2 when he tells his sister-in-law that he cannot raise a hand against the king even though the king is clearly implicated in the murder of Thomas of Woodstock. It is Gonzalo’s position implicitly in The Tempest; and he is praised to the skies by Prospero, the very man whose ouster he oversaw. Gonzalo, who is Alonso’s counselor, followed Alonso’s command to get rid of Prospero, but he followed it in such a way as to give Prospero a minimal chance of surviving his ordeal. Prospero’s terms of praise are precise: Gonzalo was his “true preserver” and “a loyal sir / To him thou follow’st.” Political obedience is also central in Henry 5, where the youth of England find themselves “on fire” to follow “the mirror of all Christian kings” into an imperialistic, dynastic war against a neighbouring nation. Even where subjects defy direct orders, they disobey not so much out of democratic or constitutional conviction as from a persistent personal devotion to the well-being of their political masters. King Lear’s counselor Kent is the outstanding example of this kind of allegiance to what the earl himself calls “authority.” One the chief characteristics of this most admirable and morally courageous of Shakespearean characters is his utter dedication to the person of the king; the king’s death takes away from him his reason for living: “I have a journey, sir, shortly to go: / My master calls me, I must not say no.”
The respondents tended not to make a compelling case on this score; perhaps they found Shakespeare’s emphasis on political obedience strange or even objectionable. They generally pointed to political hierarchy and obedience as sheer facts of Shakespeare’s imagined worlds, but without successfully explaining what might have been of value about such seemingly antiquated political views. It does not, however, require a Herculean labour of historical imagination to understand how a man raised in a country ruled by an extraordinarily charismatic woman could have embraced monarchy as the default political structure. This is not to say that Shakespeare is not critical, but it is to argue that he does not tend to think outside the box of monarchical government. Equally important is the geopolitical situation of the nation throughout Shakespeare’s lifetime, where England was threatened by the more powerful nations of Catholic Europe as well as by Catholic dissidents within England itself. The preservation of the English Protestant nation depended, in this view, on the integrity of the political system and that in turn depended on the obedience of subjects to their rulers, the idea being that the rulers held the well-being of their subjects as a sacred trust.
I continue to believe that Shakespeare is a poor fit with our ideas about crimes against humanity and that his drama embodies a massive critical endorsement of monarchical power and political obedience. That might seem to provide a solid foundation for an argument against the application for a writ of mandamus. After all, crimes against humanity seem not to be a crime in this jurisdiction, and in any case, Heinrich was indeed being impeccably obedient to his political masters. However, I have come to believe that, while this might provide a defense for some other persons who have committed heinous crimes on account of their allegiance to their rulers, it does not provide a defense for Heinrich. He is the wrong man for this defense.
My confidence in my original verdict was shaken by the caustic disdain for the man Karl Heinrich that was expressed in Justice Manderson’s judgment. Awakened to the question of the moral character of the accused (as opposed to the ideological features of the context of his actions), I had to look again at the arguments of the applicants and of my fellow justices. The upshot is straightforward: Heinrich quotes Adolf Eichmann to the effect that “obedience is commended as a virtue”; however, it is clear that it was no virtue in Heinrich (nor in Eichmann either for that matter). In Shakespeare, obedience is a virtue when it is chosen as a sacrifice of individual will to a greater good. As Justice Bristol has rightly pointed out, there is “nothing in Shakespeare that suggests unconditional obedience to the will of a sovereign as an overriding or even a particularly salient maxim for guiding actions.” Heinrich is nothing like Antigonus or Gonzalo, men who commit evil acts under complex and stressful conditions, who attempt to mitigate the injuries they cause, and who demonstrate considerable powers of imagination—Antigonus suffers a prophetic dream and envisions his own damnation; Gonzalo imagines a utopia, without political violence or bloody hands, on the basis of Montaigne’s thinking about the superiority of “savages” over their “civilized” counterparts. Ariel tells us that Gonzalo’s “tears run down his beard like winter’s drops / From eaves of reeds.” Heinrich has little kinship with these men; he resembles no one in Shakespeare quite so much as the Captain in King Lear, the man who obeys Edmund’s evil command and who hangs Lear’s daughter Cordelia. What does the Captain say by way of justification? “I cannot draw a cart, nor eat dried oats, / If it be man’s work, I’ll do’t.” In a world where men like Edgar get by on far less than oats and still succeed in doing good, this is palpably absurd. Sullen, stupid, remorseless, the Captain commits what we might call a crime against innocence, which is certainly a punishable infraction in this jurisdiction even if it is not necessarily consonant with our ideas about crimes against humanity. The point is that Shakespeare does not have to be wrenched from his ideological basis in order provide a normative morality that will answer the need for justice in the case before the court. A historically-informed analysis of Shakespeare can determine where he connects and where he doesn’t, and only a historical analysis is able both to respect Shakespeare’s thinking and to suggest the degree to which our best thoughts are nested in his. Accordingly, the applicants are justified, not because Shakespeare develops an idea of crimes against humanity—as we have seen, he does not—but rather because Heinrich appears to have committed a crime against innocence. The pertinent principle is that characters in Shakespeare who commit crimes against innocence (a crime that characteristically combines extreme brutality with imaginative impoverishment) are unworthy of mercy or even of more than the briefest notice. Lear tells the dead Cordelia, “I kill’d the slave that was a-hanging thee”; and that is all that needs to be said about the Captain. Since he is every bit as brutal and unimaginative as the slave that hangs Cordelia, there is also no more to say about Karl Heinrich.
2. Claribel
There is no more to say about Heinrich, but there remains before us the question of the general nature of the Shakespearean law. My learned colleague, Justice Manderson, takes a constructionist position in that he sees Shakespeare as a text, “an assemblage of ideas and values and voices,” whose original intentionality is simply unavailable to us and whose coherence and overall meaning must therefore be constructed by us on the strength of “an interpretative narrative strategy.” If we follow the argument of Justice Bristol’s recent book, Big Time Shakespeare, however, we will agree that the historically situated intentionality of Shakespeare’s works and the intentions of his interpreters of all stripes over the past several hundred years must be taken centrally in account. This is the case because the law is indeed a living tree, which means we must be mindful of the roots as well as of the topmost branches; because, as Justice Manderson wisely says, “we respect the judgments of the past because they have helped to make us who we are”; and because the past is not in fact unavailable to us. And (in spite of what Antonio says) neither is Claribel, the character that I take as the figure of the historical dimension of Shakespeare:
ANTONIO: Then tell me,
Who’s the next heir of Naples?
SEBASTIAN: Claribel.
ANTONIO: She that is Queen of Tunis; she that dwells
Ten leagues beyond man’s life; she that from Naples
Can have no note unless the sun were post—
The man i’th’moon’s too slow—till newborn chins
Be rough and razorable; she that from whom
We all are sea-swallowed, though some cast again,
And by that destiny to perform an act
Whereof what’s past is prologue, what to come
In yours and my discharge!
(The Tempest, 2.1.244-54)
Claribel has been left behind in Africa, wedded unhappily to the King of Tunis. Antonio says she is so far away that news from Naples will never reach her ear and that she can never return to Italy. The point, of course, is absurd; from Naples to Tunis by ship is a voyage of about 300 miles! Nevertheless, he counsels Sebastian to forget her (she’s Sebastian’s niece) and her claim to the throne of Naples, get on with the regicide—strike dead the sleeping bodies of the king (Sebastian’s brother) and the courtiers and seize power, just as if there were no Claribel, no line of legitimate inheritance, no history altogether. After some hesitation, Sebastian decides that this is a good plan. Today is the first day of the rest of their lives.
Claribel doesn’t come back. She remains nothing but the slightly risible name for a faraway, grieving princess. But Antonio is wrong nonetheless. The past is not prologue. The play itself is a massive repudiation of that claim; indeed, all the characters must take on the weight of their past, acknowledge their past actions and their implication in the history that has led them to this condition of abandonment and bereavement. Prospero too struggles with his past, which can in no way be sloughed off. Far from being an unruffled recounting of the backstory, the second scene of the play gives us a Prospero who is flooding with memory. He remembers his and his daughter’s suffering at sea and what he construes as their providential landing on the island; and behind that the kindness of his enemy Gonzalo (who, amazingly, was in charge of their ouster); and behind that, the treachery of his own brother; then the darkness of that night, the violence of the men who were sent to seize them, the crying of his three-year-old daughter—the enormous, intolerable outrage. The memories are traumatic, but without them he could not judge his brother’s actions or his own with any measure of certainty. In the face of nagging doubts about his own possibly culpable role in prompting Antonio’s evil act, he responds with great pleasure to Miranda’s ability to remember something about her toddler life in Italy. Without memory we cannot take on the past, and without our acknowledgment of who we were and what we did, we cannot achieve justice in the present moment. For the characters, the fulfillment of identity depends on the return of memory.
Claribel stands for the lost or cast off dimension without which there can be no human wholeness. She is also the foundation of what Justice Manderson calls identity—the coherence over time of individual personhood, which makes people responsible for their actions and therefore answerable to the law. My colleague sets great store on the identity of the individual: “There is no law without responsibility, no responsibility without agency, and no agency—which implies and must imply a choice of actions understood by the actor as having meaning and consequences across time—without some enduring sense of identity.” I suggest that the identity of the law ought to be parallel to the identity of the individual and that the law’s history is as germane to the value of the law as the history of persons is to their value. Indeed, if part of our purpose, as Justice Manderson says, is “to secure the assent of the ruled to our decisions,” then it is most important not to treat the law as if today were the first day of its life. The Law of Shakespeare is, I contend, not something we invent but something we discover by a process that is introspective as much as it is historical. Indeed the two operations are intertwined because, as Big Time Shakespeare makes clear, we moderns are perforce the legatees of the exfoliating historical intentionality of Shakespeare’s works. The process of reading historically is therefore also a process of cultural remembering, which means that we discover the law of Shakespeare in ourselves by reading Shakespeare’s plays—not, of course, as the revelation of some timeless human nature but rather as the hard-won discovery of the long history of modern personhood and morality.
Justice Bristol
The applicants argue that the court should issue a writ of Mandamus requiring the Attorney General to bring Karl Heinrich to trial as a war criminal. The basic claim is that there is compelling evidence, including his own testimony, that Heinrich committed acts that should be judged as war crimes prohibited by the law of Shakespeare. The applicants propose as their general theory of legal interpretation that the law of Shakespeare must be viewed a living tree; failure to do say, they maintain “would quickly render it obsolete.” In general this seems to me a stronger theory than the “Hart-Cover hybrid” doctrine proposed by the respondents in a previous moot. According to Kathleen Murphy, attorney for the respondent in the other moot, the interpretive community consists of all the fictional agents in all the plays written by Shakespeare. On this view what should count as the most salient laws can be derived from understanding what beliefs are held in common by members of the interpretive community. This corresponds to an approach to fictional reality described by David Lewis as “Analysis 0", in his important article entitled “Truth in Fiction.” The “law of Shakespeare” must be based on the collective sense of the various agents who inhabit these fictional worlds, or in other words the “law” is what the characters think it is. This has something in common with the notion of “custom” as it is understood in English Common Law, an idea that has a compelling urgency for social agents living in sixteenth and seventeenth century England. However, in my view, this principle is too narrow in its basically “historicist” treatment of what can count as the community of interpreters. There is a suggestion here of the principle that constitutional law is limited to attempts to construe the “original intent of the framers of the constitution.” This would correspond to Lewis “Analysis 2" where relevant background knowledge for any interpretation must be limited to the original author’s community of interpreters. In general I prefer the doctrine of the “living tree” which includes in the community of interpretation not only the fictional characters who inhabit the fictional world and the author’s contemporaries, but also the long-term community of readers, critics, and performers who instantiate, clarify, and elaborate the meaning of the exemplary “laws” of Shakespeare. The doctrine of the living tree takes a larger view of the interpretive community, one that includes not only the fictional agents in the plays but also the historically evolving and contingent readers of the plays viewed over the longue durée. This corresponds to Lewis’ “Analysis 1" where understanding what is true or normative in a fiction requires some consideration of the general background knowledge readers bring to their interpretation of texts. Frankly I do not know what the idea of “judgement” could possibly mean without a general provision of this kind. The doctrine of the living tree has the additional advantage of incorporating an element of fallibility in the interpretation of the law, which on this account is always a “work in progress,” open to new situations. I believe this views is generally consistent with other traditions of legislation, including common law, Torah and Talmud, and the “tradition” of the Catholic Church, all of which provide for “new insights into God’s plan.” In other words law is both fallible and open-ended. If it isn’t corrigible it isn’t law - it is simply rule by fiat.
The doctrine of the living tree is complicated by two additional provisions. First, in her presentation Attorney Bar-On argues for a “non-dogmatic” interpretation of specific laws, citing the instance of mercy as her central example. It is right, she suggests, for Claudio to receive mercy at the hands of the Duke in Measure for Measure, and it is also right for Shylock to be denied mercy in The Merchant of Venice. Mercy is shown, as in the case of Claudio, when characters have acknowledged wrong action and shown willingness to make amends for bad deeds. Mercy is denied, as in the case of Shylock, when characters have themselves been merciless in their own actions. In Loves Knowledge Martha Nussbaum argues that fictional texts are significant for us in showing how a life ought or ought not to be lived. The law of Shakespeare is inscribed in the concrete particularity of human actions, not in a set of general maxims abstracted from particular speeches or story elements. In other words, the various “laws” take the form of exempla, each of which has to be examined in very full detail to grasp the salient points of the legislation. The element of “play” in all its senses is important here, and even Shakespeare’s well-known fondness for the “preposterous.” And these exampla have to be read not only in terms of their local and immediate context or in the larger “arc of the action,” but also out of context, against a background of evolving sets of normative belief. Second, the application of an abstract general principle to specific cases must depend not only on our background knowledge, as Lewis suggests, but also on our emotional response to the action of the plays. E. M. Dadlez, in What’s Hecuba to Him, argues that “emotion is related to one’s repertoire of normative beliefs, and . . .an emotional response to fiction may take on a distinctly ethical significance.”
The use of examples taken from Henry V to instantiate the argument that the law of Shakespeare identifies and in fact prohibits war crimes is, in my view, extremely cogent, despite the difficulties that arise from the narrative and dramatic ambiguities of the situations portrayed in the play. It is certainly clear that Henry’s orders requiring his men to refrain from rape, pillage, and wanton destruction is contradicted by the brutally destructive way the war is actually conducted. And it is also true that the war against the French seems to involve little more than a shabby dynastic adventure to acquire more land and resources for Henry and his brothers. But the prohibition of “forbidden acts” by soldiers acting under Henry’s command or in other words identification of war crimes has what I will call an objective cogency here, especially when read as part of the “living tree” of the law of Shakespeare. We understand this for the same reasons we understand that the war against France is not a just war; we bring to bear on our interpretation elements of our own background knowledge and our own normative beliefs. The problem here is similar to what I will call the “Polonius” phenomenon. Polonius say to his son “to thine own self be true, and it must follow as the night the day, thou canst not then be false to any man.” This speech is often taught to young students as an unproblematic set of ethical maxims. This is in some ways extremely naive; more sophisticated readers will point out that Polonius is a hypocrite, an opportunist, and a deceiver and that his advice can’t really be taken as honest or sincere. But this can be just as naive though in a different way from a simplistic or literal reading of the text since it entails throwing the ethical baby out with the dramatic bath-water. It can’t possibly follow from the observation that Polonius is a hypocrite that therefore we should be false to ourselves and false in our dealings with others. Again we have to grasp the objective cogency of the statements even though they seem to be in contradiction with the behavior and the ethical personality of the person who utters the words.
Attorneys for the respondent have argued that Karl Heinrich has not committed any crime and that in any case the court should demonstrate mercy on grounds of respondents age, poor health, and his many years of living in Canada as an exemplary citizen. Each of these arguments has serious flaws; taken together they seem to fatally contradict each other.
Respondents argue that, according to the law of Shakespeare, the head of state has broad legal authority to initiate war. Citizen have a duty to respect state commands and to obey the orders of their sovereign. They claim further that this duty may be reinforced through coercion. There is no evidence that Heinrich was coerced or that he did whatever he did because he feared for his life. But in any case I see nothing in Shakespeare that suggests unconditional obedience to the will of a sovereign as an overriding or even a particularly salient maxim for guiding actions. It is my view that the “law of Shakespeare” privileges autonomy over heteronomy, using a version of Kant’s usage of these notions. General maxims like “hierarchy,” “the great chain of being,” “natural order,” “obedience to a sovereign,” or “disobedience to unjust laws [sic]” all fail to do justice to the intricate structure of legislation in this material if they are construed as externally binding on social agents without conscientious reflection and review. I think it’s better to view the most general maxim in this material along the lines suggested by Lawrence Becker - i.e. to do what one ought to do all things considered. This is the implied principle behind the rescue of abandoned babies in baskets on beaches or in the humble and also risky task of applying flax and egg-whites to the eyes of torture victims. Do whatever you can to make things better and resist anything that makes matters worse. The counter-example is Macduff’s reckless abandonment of his family in the name of “obedience to a sovereign.” The “law” of Shakespeare in this sense is both radically situational and at the same time universalistic. In King Lear there is a servant who tries to prevent Cornwall from proceeding with the torture of Gloucester. There is also a captain who obeys Edmund’s order to hang Cordelia on grounds that “men are as the time is; to be tender-minded does not become a sword.” It seems altogether clear that in these cases the law would seem to require disobedience to the commands of a sovereign.
Respondents also argue that even if the court should determine that Heinrich violated the law, the Court ought to exercise its discretion and deny the writ of Mandamus on grounds of mercy. It is true that the law of Shakespeare strongly encourages the application of mercy in those situations where there is an acknowledgment of wrongdoing. Antonio doesn’t deny that he has forfeited his bond, Claudio doesn’t deny that he has had illicit sex with his betrothed, and Leontes doesn’t deny that he has wrongfully condemned his wife. The plea for mercy and for remission seems entirely justified in these cases. Heinrich, however, has argued he has not violated any laws and that his acts were committed under duress. But in that case the plea for mercy seems entirely unfounded and indeed irrelevant. The plea is in fact further weakened by the stipulation, agreed to by both sides, that Karl Heinrich has lived an exemplary life during his years in Canada. In my judgement these facts speak to ideas of concealment and to the suggestion of a guilty mind. Upon learning that he has falsely condemned his wife Leontes admits his wrong, expresses his contrition, and attempts to make some kind of amends by leading the life of penitent, since as far as he knows there is no other possibility for restitution. His wife and his daughter are in the end returned to him as a form of mercy or remission, but first “it is required that you do awake your faith.” If there is any evidence that Karl Heinrich admits his wrong, that he is contrite, and that he has attempted to make restitution it has not been presented. I would suggest that to deny granting the writ of Mandamus will be precisely to deny Karl Heinrich any real possibility for mercy, which can only be granted on the basis of some kind of due process of the law. In the final summation, Attorney Dara Lithwick makes a supplementary argument that in denying the writ the court shows itself to be in harmony with a larger principle of compassion and that in the end nothing will be gained by trying the respondent Heinrich. This is an attractive argument in some way, but it is one based in the end on a kind of expediency.
The applicants have made sufficiently convincing argument that Karl Heinrich’s actions were crimes in this jurisdiction and that the interests of justice can be well served by bringing the case to trial. Respondent have assembled a package of heterogenous claims, arguing that obedience to legitimate authority is portrayed as a legally compelling in Shakespeare, that Heinrich acted under duress, that he has already endured a trial, and that his advanced age and ill health make him worthy of the consideration of mercy. While any one of these assertions might conceivably be developed into a persuasive argument for denying the writ, taken together they suggest a pattern of evasion and expediency fundamentally incompatible with the law of Shakespeare. On the basis of these considerations therefore I find for the applicant.
