A Thousand Times More Fair:
What Shakespeare’s Plays Teach Us About Justice
By Kenji Yoshino
Ecco, 320 pages
As a young man, Kenji Yoshino was torn between pursuing “justice represented in fiction”—literature—or “justice itself.” He chose the latter and is now a professor at New York University School of Law. He tells us in his new book, A Thousand Times More Fair, that the law is, like literature, merely a “set of stories.” He has come to believe that William Shakespeare’s writing in particular “illuminates” many “contemporary issues of justice,” and that the study of Shakespeare is a way to complete a legal education. “Practically every idea I ever had,” he writes, is “contained” in Shakespeare.
Yoshino examines nine plays; each is taken to represent a “timeless” legal problem that we still struggle with. Measure for Measure, he says, explores the judge’s duty to steer between “pure empathy” (too lax) and “pure law” (too harsh). President Barack Obama, he points out, said in nominating Sonia Sotomayor for the Supreme Court that “empathy” was the ideal judicial quality; a consultation with Measure for Measure might have tempered that statement. For him, Othello exemplifies the problems of fact-finding and evidence. The strawberry-spotted handkerchief, Othello’s fateful “ocular proof” of the affair between his wife and Cassio, deluded him as surely as the supposedly ill-fitting glove deluded the jury that acquitted O.J. Simpson. The Henriad (Richard II, the two Henry IV plays, and Henry V) teaches us “how a ruler establishes legitimacy,” a story we saw for ourselves as George W., the one-time carouser, became President Bush, the sober statesman.
At heart, Yoshino is more litterateur than lawyer, and the book is something of an act of misdirection. The bulk of each chapter is devoted to textual criticism of a play itself; it’s only in the last half dozen or so pages that any discussion of contemporary issues pops up. This is really a book of Shakespeare criticism, and for the most part, Yoshino proves to be a close and accurate reader. In discussing The Merchant of Venice, he nicely teases out that the nature of genuine love lies in giving, not receiving, by noting that of the inscriptions on the play’s three caskets (the suitor who chooses the one hiding Portia’s picture may wed her), the gold and silver ones speak of what the suitor shall “gain” and “get,” but the one made of lead speaks of what he must “give.” Lead, the least of the metals, hides the greatest of the lessons.
King Lear begins with the famous “love test,” in which the king disburdens himself of his empire by offering the choicest parts to the daughter who expresses the deepest love for him. But what “leaps out to a lawyer’s eye,” writes Yoshino, “is that the lands have already been divided and assigned before any daughter speaks a word.” This is actually a “high-stakes real-estate closing”—a scheme to distribute lands by “merit”—that goes awry when Cordelia refuses to play along.
And Yoshino offers a rich analysis of Hamlet’s delay in obeying his murdered father’s call for vengeance. Yoshino sees in Hamlet an “intellectual” committed to abstract “perfect justice” who takes it upon himself to initiate a sort of one-jurored criminal trial, with familiar “guilt” and “sentencing” phases. First he carefully assures himself that King Claudius is guilty, using the play-within-a-play in the third act, then he abruptly turns hanging judge: witness his cruelty to Ophelia, or his unhesitating dispatch of Rosencrantz, Guildenstern, and Polonius. Hamlet wasn’t weak or riven with Oedipal conflict. What he wanted, like Dickens’s Mr. Gradgrind, was Facts.
Perhaps what Hamlet ought to have done is retain Portia of The Merchant of Venice as counsel. Although a heroine to most (the first American law school for women, founded in 1908, was called the Portia School of Law), Yoshino shows us that she is a charmless sophist who embodies the lawyer’s most hated quality: twisting words for legal advantage. Yoshino’s chapter on Portia is fine revisionism. He especially deplores her “pettifogging trick” in the play’s climactic trial. By assuring Shylock in court that he can lawfully take a pound of flesh as long as no blood is shed, then revealing that even the attempt to do so is in fact unlawful, she turns a civil action by Shylock into a criminal prosecution against him. Yoshino finds Portia’s reasoning ensnaring and absurd—if I contract for a slice of melon, but no juice, I get nothing?
But when, in the final pages of each chapter, Yoshino breaks off his examination of the texts to clinch a supposed larger lesson, the measured critical tone vanishes and the book becomes polemical, preachy, and boring. The captious Portia is compared to Bill Clinton and his “hairsplitting legalisms” over Monica Lewinsky (“it depends on what the meaning of the word ‘is’ is”). This is so thin that one wonders why Yoshino stops there. Why not imagine Clinton as a southern Lady Macbeth, hollering “Out, damned spot”?
In Titus Andronicus, Yoshino perceives a “cautionary tale” about lawless “vendettas,” among which Yoshino numbers Afghanistan and Iraq. “The terrorists were monsters,” he says, but Abu Ghraib showed that “we had become monsters as well.” Does it split hairs to observe that while their monsters exulted in war crimes, our “monsters” are court-martialed by the hundreds? A definition of “justice” might also have lent Yoshino the subtlety needed to distinguish American soldiers from an imaginary Roman general better known for serving a woman her own children baked into a meat pie.
And by resurrecting the Bush-as-Henry V gimmick, which a few journalists in 2001 apparently believed was clever, Yoshino again proves that the Bard will not so easily lend himself to being such stuff as op-eds are made on. He also notes that Henry V was advised to “busy giddy minds?/?with foreign quarrels.” Is conspiracy theory part of that “messy, fine-grained” complexity he promises us?
The book fails on its own terms, because as far as Yoshino’s analysis goes, the plays “illuminate” our legal affairs only in the most tendentious ways. Yet, a patient reader can still usefully read Yoshino’s literary criticism while ignoring his sermons. When Yoshino lets the characters speak, the book is engaging. When Yoshino speaks for Shakespeare, we lose the poet for the professor. The tip-off is the self-referential tone that persistently intrudes at the end of each chapter: “My problem with confirmation hearings . . . ” “My general malaise about human fact-finding . . . ” “Perhaps I am being too hard on humankind . . . ”
I like to think Shakespeare would have preferred to have old Falstaff for his defense, supposing the fat rogue could fit into a suit and didn’t immediately blow the retainer on sherry and whores. It wouldn’t end well for the client, but at least it would make a good story.