Whenever I have to spend a lot of time dealing with lawyers, I find myself thinking about The Merchant of Venice, the best guide to the law (and to lawyers) ever written. Of course, for as long as I’ve been reading it, I’ve encountered interpreters who sing the praises of Portia, the pseudo-lawyer who decides the case at the climax of the play. I guess my attitude toward Portia is a lot like Jan Brady’s attitude toward her older sister Marcia, as depicted in this, the climactic scene in one of the major episodes of the Brady Bunch epic.
Ignore the parents. They have no clue.
Jan’s right, mutatis mutandis.* Every time Portia turns around, some interpreter hands her a normative ribbon or something. Read the literature, and all you read all day long is how merciful Portia is, or how subtle her legal reasoning. Portia, Portia, Portia! I’m tired of reading the play in Portia’s shadow. It all comes so easy for her, blathering on about the “gentle rain,” blah blah blah. She postures as an avatar of mercy, then presides over a forced conversion. Nice.
I have a bunch of solutions to the dilemma of The Merchant of Venice, all of them way better than Portia’s, but one just hit me the other day as I was trying to figure out how to pay a legal bill.
Why didn’t Portia just put Antonio on a payment plan? Shylock is entitled to a pound of flesh, but if you read the bond carefully, it doesn’t say exactly what the payment schedule is to be (Merchant of Venice, I.3, 140-50). It just says that if Antonio fails to pay by a certain date, Shylock is entitled to a pound of his flesh, taken from whatever part of Antonio’s body Shylock pleases. If the problem is that Antonio would be killed by the process as Shylock envisions it, just have Shylock take the flesh in increments that wouldn’t kill Antonio, but that add up over time to a pound, compensating Shylock in ducats at the going discount rate for human flesh. Of course, that last part is a bit of a formality, as it’s Shylock himself who admits that the flesh doesn’t have any present value, so there might not be a discount rate for human flesh. All the better!
How hard was that? I don’t even have a law degree, but hey–a judgment Richard Epstein could love. One simple solution to a supposedly complex problem. No blather about mercy, no invocation of discriminatory laws, no absurd subventions to uninvolved third parties, no forced conversion, no homelessness. I mean, yeah, it might be inconvenient to have to convene like 38 times before the debt was paid, but that’s what you get for coming up with such a dumb contract.
Of course, “How hard was that?” is a question that could fairly be asked of any number of legal actions that inexplicably take forever to resolve. I think Shakespeare offered up a fairly reasonable solution to that problem in Henry VI. But read it yourself. For legal reasons, I’d prefer not to repeat it here.
*I’ve often thought the episode would have been improved if Jan had held her ground in what she told Marcia–“I don’t have to tell you anything!”–invoking her Fifth Amendment right to remain silent through the parental interrogation that followed. I’d love to see where Mike and Carol would have gone with that, all that empty sermonizing falling on deaf ears and blank stares. “The Brady Bunch and Custodial Interrogation.” I guess they’d have to re-write the theme song a bit. “Here’s the story…”
For why I think both Portia and Shylock are wrong, see my discussion here:
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Your 1993 abortion paper is probably the single piece of writing by you that’s influenced me more than any other–less for what it said about abortion than what it said about the structure of rights. I think I read it around the time it was published. It fundamentally changed (clarified) the way I thought (and still think) about rights. Your Aristotle versus Rand book is sort of a second runner-up, but the abortion paper is so much a part of my onboard operating equipment that I can no longer remember how I thought about rights before I read it.
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Reading that paper was a hugely clarifying and liberating experience after hearing the same cliches about rights repeated over and over for years by Objectivists, libertarians, and their communitarian critics.