Rich Meyer: “Understanding Equity’s Role in Judicial Philosophy

Understanding Equity’s Role in Judicial Philosophy in Shakespeare’s Measure for Measure

Rich Meyer

Perhaps Shakespeare’s most provocative problem play, Measure for Measure explores the radical complexities that the law faces in the service of a human state. This state, in which the principal beings are of a fallen nature, inevitably sends waves of nuanced crime crashing against the walls of juridical philosophy. The play evokes questions pertaining to the purpose of law and the intricate relationship between justice and mercy. Claudio’s crime of fornication, Angelo’s seemingly stoic devotion to severe justice, Isabella’s merciful character and iron will, and the Duke’s providential role-playing in this Viennese moral experiment all serve to draw out the tensions between these two concepts inherently rooted within the realm of human and eternal law. These tensions can be reconciled when implementing Thomistic, and by extension Aristotelian, thought on the virtue of equity, which is “the principle that allows the magistrate to make exceptions to general laws where enforcing the general law would lead to an injustice under specific local circumstances.”1 Equity is thus especially pertinent and necessary when judging Claudio’s crime and the exoneration of Angelo, for the extremes of strictly just (Angelo) and naively merciful (the Duke) ideologies fail to navigate successfully these convoluted waters of human law. This paper intends to lay bare the structural faults in both of the princes’ radical philosophies. Afterward, it demonstrates that equity presents a reasonable and effective method of governance, and reveals how Shakespeare embeds medieval Christian theology and classical philosophy to resolve the mess of the drama.

The play starts in Vienna, an Italian city-state ruled by the Duke. For fourteen years, the Duke’s misplaced compassion and unwillingness to enforce the law allowed lawlessness to fester within the city. In a move to restore order among his constituents, the Duke deputizes Angelo, a man known for his moral rigidity. Once in power, Angelo immediately sentences the young aristocrat Claudio to death for impregnating his girlfriend Juliet before they were married, hoping to make an example out of him to the other citizens of Vienna. Lucio, Claudio’s friend, goes to the local

1. Stacy Mag”endaz, “Public Justice and Private Mercy in Measure for Mea1 Stacy Magendaz, “Public Justic and Private Mercy in Measure for Measure,” (San sure,” (San Bernandino, 2004), 327. Bernandino, 2004), 327.

convent and convinces Isabella, Claudio’s sister, to go to Angelo and beg for mercy on behalf of her brother. She does, but receives an undesirable compromise: Claudio’s freedom for her virginity. Isabella is faced with an impossible moral dilemma and does not know what to do. At this point in the play, the Duke reenters, disguised as a friar. He informs Isabella that Mariana, Angelo’s former betrothed, was abandoned by Angelo when her dowry went missing in a shipwreck. The Duke then formulates a plan that involves Isabella agreeing to Angelo’s offer, but with Mariana going in her stead. This happens; yet Angelo, out of fear of revenge, refuses to pardon Claudio of his crime. The Duke secretly saves Claudio, unbeknownst to the other characters. Feeling the pangs of injustice, Isabella makes her complaint to the Duke as he returns to retrieve his authority. In the climax, the Duke acts as a final mediator and judge for all grievances. As the play follows comedic tradition, all the problems are resolved through a series of surprising marriages, some more promising than others, and order is restored. Common though they are, the administrative styles of the Duke and Angelo contain tragic flaws that doom the society to disparate and unjust consequences. Throughout the plot, they are exposed as being woefully blind to the metaphysical realities of human nature, natural law, and the intricate concept of equity. The effects of the Duke’s rule and its impact on society are blatantly obvious within the first act. His reign of mercy and spinelessness when enforcing the law that punishes fornication with death has allowed for a cesspool of prostitution to fester and flourish in the city of Vienna, as we see through the promiscuous Lucio and Miss Overdone. Lax enforcement of the law leads to general looseness of morals and undercuts the law. The Duke’s refusal to administer the law for fourteen years under the genuine pretext of mercy has destroyed any authority of the law. He likens this situation to that of “an o’ergrown lion in a cave, that goes not out to prey,” or to “fond fathers [that have] bound up the threat’ning twigs of birch, only to stick it in their children’s sight for terror, not to use” (1.3.22–26).2 As Georg Gottfried Gervinus notes, even though good intentions preceded every merciful act, “it turned to the detriment of the common weal, and scattered the seeds of crime.”3 What emerges is the law “becom[ing] more mocked

1. 2 All references to Measure for Measure are from William Shake2 All references to Measure for Measure are from William Shakespeare, Measure for Measure speare, Measure for Measure (New York, New York: Signet Classic, 1988), cited paren-(New York, New York: Signet Classic, 1988), cited parenthetically by act, scene, and line thetically by act, scene, and line number. number. 1. 3 Georg Gottfried Gervinus, “A play expressing equity, not justice,” 3 Georg Gottfried Gervinus, “A play expressing equit, not justice,” in Measure for Measure: in Measure for Measure: Shakespeare: The Critical Tradition. Volume 6 (London: The Shakespeare: The Critical Tradition. Volume 6 (London: The Atholone Press, 2001), 159 Atholone Press, 2001), 159.

than feared” (1.3.27), an unescapable development and ultimately the damning fruit of a strictly forgiving bureaucracy. Angelo becoming the prince of Vienna swings the governmental pendulum from one of mild compassion to one of draconian due process that follows the law to the letter. This strict implementation of the law serves as a rude awakening to his constituents, most immediately to Claudio, who bears the brunt of this sudden prosecution. From the onset, one might not see anything wrong with Angelo’s affirmation of the integrity of the law. Vienna requires such a persona, an embodiment of rigid morality, in its leader if it hopes to be transformed into a town free from promiscuity. Isabella hints at the virtue that lies in such a mode of discipline when she admits, “O, it is excellent to have a giant’s strength” (2.2.109). Why then, is Angelo’s rule problematic? Should not extremes be countered by extremes if a shift in disposition is desired? To start, it is impractical, even inhuman, for a man to maintain the level of propriety Angelo maintains. George Wilkes concurs when describing him as the “picture of Puritan hypocrisy.” 4 Angelo’s personality is emotionless, almost robotic, such that he “scarce confesses that his blood flows or that his appetite is more to bread than stone” (1.3.55–57) and “never feels the wanton stings and motions of the sense” (1.4.62-63). In embodying this, he holds himself to a spotless, indifferent morality, similar to that of the law, yet denies his fallen nature. This is his most grievous fault, for in suppressing his passions and emotions he never learns how to deal with them. Even though, as Gervinus asserts, “there was good in Angelo’s serious political intentions, the suppression of the feelings which accompanied them avenged itself by bursting asunder the unnatural restraints.” 5 Thus when he expresses his attraction for Isabella, it is a novelty that bubbles over into a monologue of interior contradiction of strict morality versus raging lust.

Just as Angelo’s nature is clearly at fault, so also is the philosophy which guides him. What Angelo’s fixed justice primarily lacks is the more foundational understanding that, as Aquinas asserts, “every law is ordained to the common good.”6 Additionally, he must realize that the truer purpose of the law lies in the motive of the lawmaker rather than the specific lettering which frames the law. This is because the lawmaker faces an impossible task

1. 4 George Wilkes, “Measure for Measure and Roman Catholicism,” 4 George Wilkes, “Measure for Measure and Roman Catholicism,” in Measure for in Measure for Measure: Shakespeare: The Critical Tradition. Volume 6 (London: The Measure: Shakespeare: The Critical Tradition. Volume 6 (London” The Atholone Press, Atholone Press, 2001), 190. 2001), 190. 1. 5 Georg Gottfried Gervinus, “A play expressing equity, not justice,” 5 Georg Gottfried Gervinus, “A play expressing equity, not justice,” 159. 159. 6 Aquinas, Summa Theologica, II-I,Q.90,A.2 1. 6 Aquinas, Summa Theologica, II-I, Q. 90, A.2.

when creating a law for every nuanced case imaginable. Such a law would require some sense of complete and total knowledge and is subsequently unattainable. By isolating each case to the bare action and disregarding the individual circumstances, he becomes insensitive to the fact that, as Anton-Hermann Chroust explains, “if the ‘strict Common Law’ be applied to certain cases, it would frustrate the equality of Justice and be injurious to the common good which the law has in view.”7 To obtain this more wholesome theory of justice and properly judge Claudio, Angelo must undergo a transformation of juridical philosophy ordered towards the motive of those certain lawmakers. This transformation can be characterized as leaving the realm of the “strict Common Law” and entering that realm of equitable justice which philosophers like Aquinas and Aristotle upheld. However, Angelo does not do this, and in adhering to strict interpretation, he finds himself in a precariously ironic situation: in the terms of Aquinas, it is “without doubt [that] he transgresses the law who by adhering to the letter of the strict Common Law strives to defeat the intention of the lawgiver.”8 By unrelentingly pursuing the law and its morality, he violates that which he upholds. The text demonstrates how this reasoning is remarkably applicable. Isabella’s pleas for mercy and pity are pitted against Angelo’s “strict Common Law.” Prior to any moral fall on Angelo’s part, Isabella’s venture seems doomed from the start, as the dilemma is framed in the context of justice versus mercy. In Angelo’s administration, there is no room for discriminating mercy. As a result, the emotional appeals predictably bounce off Angelo’s conscience of steel to no avail. Instead, Isabella could have focused on equity. This process would have accentuated two things. First, that while Claudio’s crime may have offended the letter of the law, it certainly did not offend its spirit. This law against fornication was created to prevent what persisted under the Duke’s reign: a general lewdness that fosters no commitment to marriage, ruins the family, and ushers in children to a wildly irresponsible environment. In contrast, Claudio and Juliette were married in all ways except the formal. In spirit, “she is fast my wife” (1.2.150), Claudio says. The sole reason that this act was performed outside of marriage was because of some financial complications with the dowery. It becomes obvious then that what Claudio and Juliette did in no way contributed to the detriment of the common good and merited no proportional judgment, for their child was con-

1. 7 Anton-Hermann Chroust, “Common Good and the Problem of 7 Anton-Hermann Chroust, “Common Good and the Problem of Equity in the PhilosEquity in the Philosophy of Law of St. Thomas Aquinas,” Notre Dame Law Review 18, ophy of Law of St. Thomas Aquinas,” Notre Dame Law Review 18, no. 2 (December 1, no. 2 (December 1, 1942): pp. 117. 1942):pp.117. 1. 8 Aquinas, Summa Theologica, II-II, Q. 120, A.1.8 Aquinas, Summa Theologica, II-II, Q. 120, A. 1.

ceived to loving and devoted parents. The second aspect would be the appeal to Angelo’s one-track mind of justice, for both Aquinas and Aristotle viewed equity as a subset of justice. One can have justice without equity but not equity without justice. If equity is, in Aristotle’s terms, “a correction of legal justice…, is just, and is better than one kind of justice,”9 it is in no way greater than the higher concept of justice itself. Furthermore, as Chroust claims, it “does not intend to set aside what is right and just, nor does it try to pass judgment on a ‘strict Common Law rule’ by claiming that the latter was not well made.”10 Since this logic quite clearly remains inside the concept of justice and at the same time pardons Claudio, it might have had a better chance of swaying Angelo from his course than a plea for mercy.

The final act of Measure for Measure exhibits a barrage of merciful acquittals, just accusations and pardons, and equitable triumphs that resolve the comedic play in dramatic fashion. While some are dealt with rather simply—like Escalus, Claudio, and Barnardine—the twisted fallout of Angelo, Isabella, and Marianna’s actions requires a bit more attention and analysis. Angelo’s duplicitous double-crime complicates things greatly. Not only is he guilty of a broken promise and sending for Claudio’s death “at an unusual hour” (5.1.461), but also of committing the same crime he imprisons Claudio for. Justice screams out to all parties. Isabella and Marianna both seek their ends—retribution for the (supposed) death of Claudio and a mercy to Angelo, respectively. The Duke, recognizing the atrocious nature of these deeds, calls for “an Angelo for Claudio, death for death…Measure still for Measure” (5.1.412–414). Even Angelo himself, realizing his own fate, summons his last shreds of honor, saying, “let my trial be mine own confession. Immediate sentence then, and sequent death, is all the grace I beg…I crave death more willingly than mercy” (5.1.375–377,479). So, in the end, why is justice apparently overtaken by mercy? Is this mercy shown to Angelo itself an injustice? Wilkes certainly thinks so, for that at the end “the great principle of retributive justice is sadly sacrificed to a weak fancy for forgiveness.” 11 He thinks that Angelo’s heinous actions merit the forfeiture of his life, and only in this way can justice be achieved. In a similar yet starkly different manner, George Daniel posits that punishment is indeed necessary, yet is already satisfied

1. 9 Aristotle, Nicomachean Ethics, trans. Martin Ostwald (Upper Saddle 9 Aristotle, Nicomanchean Ethics, trans. Martin Ostwald (Upper Saddle River, New River, New Jersey: Prentice Hall, 1999), 121. Jersey: Prentice Hall, 1999), 121. 1. 10 Anton-Hermann Chroust, “Common Good and the Problem of 10 Anton-Hermann Chroust, “Common Good and the Problem of Equity,” 117. Equity,” 117. 11 George Wilkes, “Measure for Measure and Roman Catholicism,” 186. 1. 11 George Wilkes, “Measure for Measure and Roman Catholicism,” 186.

through “the deep shame and humiliation that overwhelm him in the severe reproofs of Escalus and the Duke,” the “horrors of guilt,” and the tasting of “the bitterness of death by hourly anticipation.”12 However, Gervinus is not convinced. Because the ends to which Angelo acted never came to fruition (most importantly Claudio’s death), his “doom would not be in law altogether in conformity with justice.”13 Additionally, how could the Duke, the one who placed Angelo in this situation in the first place, the one who knows what everyone else does not—that Claudio still lives—justly punish Angelo with a clear conscience?

A thorough application of equity to this unique situation reveals that the nature of the pardoning of Angelo’s crime, at least on the Duke’s part, is not of mercy but rather of equity. “The marriage to which the Duke ‘sentences’ [Angelo] embodies this principle of equity,” 14 as Stacy Magendaz asserts, because it weighs Angelo’s errors and adequately solves them with a positive outcome that has no wrongful effect on the common good. Additionally, it restores justice to Marianna, whom Angelo faulted when he broke their legal contract years prior. Therefore, Wilkes’s belief that justice has sadly been sacrificed on account of forgiveness is doubly wrong: first, because in the public sphere it is equity that acquits Angelo, not forgiveness; and second, because justice is not sacrificed because equity is a form of justice. Ultimately, it is through the incorporation of equity into the Duke’s judicial philosophy that he can effectively accommodate his good, merciful intentions and resolve the play in such comedic triumph.

1. 12 George Daniel, “A play about mercy,” in Measure for Measure: 12 George Daniel, “A play about mercy,” in Measure for Measure: Shakespeare: The CritShakespeare: The Critical Tradition. Volume 6. Shakespeare, the Critical Tradition. Lon-ical Tradition. Volume 6. Shakespeare, The Critical Tradition. London: The Atholone don: The Atholone Press, 2001, 70. Press, 2001, 70. 1. 13 Georg Gottfried Gervinus, “A play expressing equity, not justice,” 13 Georg Gottfried Gervinus, “A play expressing equity, not justice,” 158. 158. 14 Stacy Magendaz, “Public Justice and Private Mercy in Measure for Measure,” (San 1. 14 Stacy Magendaz, “Public Justice and Private Mercy in Measure for Bernandino, 2004), 327. Measure,” (San Bernandino, 2004), 327.

Aristotle. Nicomachean Ethics. Translated by Martin Ostwald. Upper Saddle River, New Jersey: Prentice Hall, 1999.

Aquinas, Thomas. “Question 90. The Essence of Law.” SUMMA

THEOLOGIAE: The essence of law (Prima Secundae Partis,

Q. 90). Accessed April 24, 2021. https://www.newadvent. org/summa/2090.htm#article2.

Aquinas, Thomas. “Question 120. ‘Epikea’ or Equity.” SUMMA

THEOLOGIAE: Epikea’ or equity (Secundae Secundae Partis, Q. 120). Accessed April 24, 2021. https://www.newadvent.org/summa/2090.htm#article2.

Bald, R.C. Introduction. In Measure for Measure, 15–23. Baltimore,

Maryland: Penguin Books Inc., 1956.

Chroust, Anton-Hermann. “Common Good and the Problem of

Equity in the Philosophy of Law of St. Thomas Aquinas.”

Notre Dame Law Review 18, no. 2 (December 1, 1942): 114–18.

Daniel, George. “A play about mercy.” in Measure for Measure:

Shakespeare: The Critical Tradition. Volume 6. Shakespeare, the Critical Tradition. London: The Atholone Press, 2001. http://search.ebscohost.com.library.hcc-nd.edu:3209/login. aspx?direct=true&db=nlebk&AN=22671&site=ehost-live, 70–73.

Gervinus, Georg Gottfried. “A play expressing equity, not justice.” in Measure for Measure: Shakespeare: The Critical Tradition.

Volume 6. Shakespeare, the Critical Tradition. London:

The Atholone Press, 2001. http://search.ebscohost.com. library.hcc-nd.edu:3209/login.aspx?direct=true&db=nlebk&AN=22671&site=ehost-live, 152–160.

Magendaz, Stacy. “Public Justice and Private Mercy in Measure for

Measure.” San Bernandino, 2004. https://scholarworks.lib. csusb.edu/cgi/viewcontent.cgi?article=1010&context=library-publications. Shakespeare, William. Measure for Measure. New York, New York:

Signet Classic, 1988. Wilkes, George. “Measure for Measure and Roman Catholicism.”

In Measure for Measure: Shakespeare: The Critical Tradi58

tion. Volume 6. Shakespeare, the Critical Tradition. London: The Atholone Press, 2001. http://search.ebscohost.com. library.hcc-nd.edu:3209/login.aspx?direct=true&db=nlebk&AN=22671&site=ehost-live, 186–191.