Shakespeare and Legal Positivism

            Despite his limited formal education, Shakespeare’s works display a great deal of legal knowledge.^[1]  As a part of Shakespeare’s vast imaginative universe, his storylines and characters help us (among countless other things) to analyze the command form of legal positivism, a form of legal positivism holding that laws are commands of sovereigns backed by threats of punishment. Various scenarios in the plays help us see how such an approach cannot succeed.  As I plan to show in subsequent blogs, Shakespeare also: (a) beautifully lays out arguments for natural law only to demolish them; (b) centuries before Holmes formulated his prediction theory of law (the theory that the law is a set of predictions as to how the courts will act in certain circumstances), Shakespeare penned plays that help us see how such theory fails; and (c) Shakespeare otherwise gives us insightful bits and pieces from which we might begin generating a workable jurisprudence complying with the semiotics of law and its inherent restraints.^[2]   In this first of four planned blogs (all four of which draw from my longer article Let’s Skill All the Lawyers), I’ll briefly explore the command theory form of legal positivism using insights from Shakespeare.

A. Law as Sovereign Command

            The command form of legal positivism holds that laws are commands of a sovereign who is habitually obeyed and who is beholding to none other.^[3]   If commanded by that sovereign, laws are valid without regard to their moral content.^[4]  Instead, they are obeyed to avoid the predictable punishment that would ensue if they are not obeyed.^[5]  Shakespeare and logic both make short order of any such concept of law

B. John, Richard II, Henry IV, Hamlet and the Problem Of Legitimate Sovereignty

            Taking Shakespeare’s “history plays” in their internal chronological order, The Life and Death of King John (hereafter King John) explores both the nature of sovereignty and its legitimacy.  In this play, John has usurped the crown from Arthur,^[6] the son of John’s older brother Geoffrey.  Challenging John’s legitimacy, the Frenchman Chatillon therefore begins the play with a snide reference to John’s “borrowed majesty.”^[7]  To complicate matters further, John has an illegitimate nephew Philip the Bastard.^[8]  

            If we are using commands and threats as criteria, what makes John and not Arthur or Philip the Bastard the king? Can’t the latter also issue commands and threats?  Perhaps the difference is that John is more “sovereign” because more people habitually obey him out of fear of punishment than they do the other two?  But if so, where do we find John’s legal sovereignty and legitimacy in these facts alone?  How do they distinguish John from a mere criminal whom the populace habitually obeys out of fear of physical harm?  Certainly kingship demands something more.  John would not want to be on a par with such criminals, and subjects would not want to be ruled by criminals. Thus, after MacBeth has lost his ethos as a leader, Angus notes the loose, unstable feel of such a throne of mere command:

Those [Macbeth] commands move only in command,                  

Nothing in love. Now does he feel his title                     

Hang loose about him, like a giant's robe                       

Upon a dwarfish thief.^[9]                              

Any “sovereign” who claims no more legitimacy than the power to sanction if disobeyed must find the garments of state loose fitting indeed even if most obey him out of fear.^[10]  As King Lear reminds us, a sovereign “crowned” only by fear “holds” office only in the sense that a guard dog holds office over beggars and thieves that flee his bite: “There thou / might’st behold the great image of authority--a dog's / obeyed in office.”^[11]  A civilized legal system requires more than a dog obeyed in office.

C. No Law Without The Biting Dog?

            These problems raise further questions still.  What happens during an interregnum when there is no biting dog?  Must not the law disappear between sovereigns when there is no one to issue commands and threats?^[12]  Such legal gaps are of course inconsistent with the rule of law.  Furthermore, if threat of sanction is required for law, what kind of “law” can we have when the dog exists but doesn’t or won’t bite everyone who “disobeys”? Does this put some people beyond the reach of the law?  Falstaff, for example, sees himself beyond the law when he sees himself under no threat of punishment or sanction; he rejoices when Prince Hal is to succeed Hal’s father Henry IV because Falstaff believes that he can then “take any man’s horses. . . .”^[13] without threat of sanction.  Falstaff easily understands that criminal acts are effectively decriminalized under such a theory whenever no realistic threat of sanction exists.^[14]  Of course, such fluid criminality is hardly consistent with rule of law.  Falstaff is on to something here but I’d want to say it is a flaw in theory rather than a license to steal.  

D. What if the Commands & Ultimate Sanctions Come Instead from God?

            Might the command theory work if God himself commands obedience to the earthly “sovereign” and does so under ever-pending threat of divine sanction?  Would the gaps and resemblance to thuggery then go away?  John certainly attempts this approach.  For example, he tells that “meddling priest,” the pope: 

                . . . [N]o Italian priest

Shall tithe or toll in our dominions,

But as we (i.e., John) under God are supreme head,

So under him that great supremacy,

Where we do reign, we will alone uphold,

Without th’assistance of a mortal hand.^[15]

Granting arguendo the existence of such divine commands, has John not therefore potentially solved his problem?  For if God commands something, must that not legitimize and require the thing commanded?  

            The problem here, of course, is that even if we accept some notion of the divine right of kings, we cannot as a practical matter determine who holds that right.  First, the very disagreement between John and the supporters of Arthur on its face demonstrates this problem.  Second, anyone who would appeal to God as ground for his office is not only in the awkward position of contradicting Biblical provisions on the inscrutability of divine will (such as, for example, the story of Job) but would, like Dido’s sister and Palladas’ thief, reject much classical wisdom on the subject as well.^[16]  

            Not surprisingly, John himself ultimately concedes his sophistry. Finding himself in the end reduced to a wretched figure, he laments as he burns with fever:

There is so hot a summer in my bosom
That all my bowels crumble up to dust.
I am a scribbled form, drawn with a pen
Upon a parchment, and against this fire
Do I shrink up.^[17]

           

            Failing to absorb John’s lesson, Richard II also later relies upon divine command as his source of legitimate authority.  As he puts it:

Not all the water in the rough rude sea
Can wash the balm off from an anointed king.
The breath of worldly men cannot depose
The deputy elected by the Lord. . . .^[18]

             

            With the “security” of such “anointing,” Richard II recklessly banishes Henry Bolingbroke for six years and subsequently confiscates the property of Bolingbroke’s father, John of Gaunt.  Bolingbroke not surprisingly rebels and raises an army to reclaim his rights.  Still resting on divine rights despite John’s earlier experience, Richard II philosophically comforts himself:

For every man that Bolingbroke hath pressed
To lift shrewd steel against our golden crown,
God for his Richard hath in heavenly pay
A glorious angel.  Then, if angels fight,
Weak men must fall; for heaven still guards the right.^[19]

When further challenged on his sovereign status as king, Richard exclaims:

If we be not, show us the hand of God
That hath dismissed us from our stewardship;
For well we know no hand of blood and bone
Can gripe the sacred handle of our scepter,
Unless he do profane, steal, or usurp.^[20]

Unfortunately for Richard, real-world experience and social forces push back, and Bolingbroke forces Richard to abdicate and transfer the throne to Bolingbroke (the future Henry IV).^[21] 

             

            Of course, Bolingbroke (now Henry IV) can find small security in the deed. Having ousted Richard, Henry IV finds himself back in King John’s same uneasy state.  With John’s and Richard’s examples as precedent, “victorious” Henry IV must worry about Richard’s earlier dire prophecy that Bolingbroke has

                                 . . . . come to open
The purple testament of bleeding war.
But ere the crown he looks for live in peace,
Ten thousand bloody crowns of mothers' sons
Shall ill become the flower of England's face,
Change the complexion of her maid-pale peace
To scarlet indignation, and bedew
Her pastor’s grass with faithful English blood.^[22]

Since usurpers cannot maintain certain sovereignty merely by appeal to God or by physically seizing the crown, we can expect tumultuous times ahead for those who take such approaches.  Thus, Henry IV laments at the end of the play that he is full of woe “[t]hat blood should sprinkle me to make me grow.”^[23]  He is right to lament.   The cycles of earthly and heavenly sovereign appeal continue their predictably bloody courses through the two parts of King Henry the Fourth, The Life of King Henry the Fifth, the three parts of King Henry the Sixth, and The Tragedy of King Richard the Third.   

            Similar bloody cycles also play out outside the “history plays.”  For example, in The Tragical History of Hamlet Prince of Denmark [hereafter Hamlet], Claudius has murdered the king (Hamlet's father), married Hamlet's mother and assumed the kingship.  Although we might think that God would not have endorsed such a result, how do we know this with certainty sufficient to justify the killing of Claudius?  How can Hamlet know that Claudius was not in fact acting out God's will?  Hamlet of course cannot know this and, confounded, he falls into a bloody, downward spiral that leaves, among others, his mother, Claudius, and himself dead.^[24]

E. Falstaff and Amorality

            In addition to the sovereign legitimacy problems generated by sovereign-command positivism, the theory generates further unacceptable substantive difficulties.    If law is simply the command of the sovereign given under threat of sanction, then the content is irrelevant.  Evil or nonsensical laws would be law if they are commanded by the sovereign and are obeyed out of fear of sanction.  

            Falstaff, again, is of course the epitome of one who believes that the sovereign can command what he will.  Thus Falstaff tells Prince Hal (the future Henry V):   

                

Marry, then, sweet wag, when thou art king, / let not us that are squires of the night's body be called / thieves of the day's beauty. Let us be Diana's foresters, / gentlemen of the shade, minions of the moon; and let / men say we be men of good government, being gov-/erned as the sea is, by our noble and chaste mistress / the moon, under whose countenance we steal.^[25]

For those interested in the rule of law, the moral looseness of command-theory positivism is no less troubling than the other difficulties we encountered above with the theory.

F. Command Theory Insight Through Negative Example

            Shakespeare not only helps us see how the command theory fails at both the earthly and heavenly levels.  He also helps us learn from its negative example.  

The plays help us see that any adequate jurisprudence must adequately account for the symbiotic relationship between the governed and those who govern.  Although the notion of the habit of obedience under threat of sanction fails to account for the law, it does reflect the fact that no legal system can work if it is not accepted as binding by a sufficient majority of the “governed.”  This proved a fatal lesson for Richard (at least if one is correct in assuming the “sufficient majority” was no longer behind him).  Also to this point, Shakespeare’s John foolishly asks, “Doth not the crown of England prove the king?”^[26]  No it does not.  No matter how securely John physically holds the physical crown and no matter how many times he might use it to crown himself “king,” John of course has no practical kingly powers if a sufficient majority of the governed do not recognize him as their king. Nor, on the flipside, does John’s physical power to put the crown on his head multiple times and threaten those who disapprove of the crownings add to any pre-existing legitimacy. Salisbury’s eloquent words in King John capture the superfluity:

. . .  [T]o be possessed with double pomp,
To guard a title that was rich before,
To gild refinèd gold, to paint the lily,
To throw a perfume on the violet,
To smooth the ice, or add another hue
Unto the rainbow, or with taper light
To seek the beauteous eye of heaven to garnish,
Is wasteful and ridiculous excess.^[27]

             

            Additionally, any jurisprudence which defines law in terms of commands, threats and sanctions may explain a dog “in office”^[28] or the “authority” of any other menacing figure.  It does not, however, demarcate legitimate legal authority from mere force or account for interregnal legal continuity—does the law disappear between kings when there is no king to command and threaten citizens?  Rules or standards of legitimacy and continuity are required for continuity of law and for discernment of applicable law.^[29]

In this vein, H.L.A. Hart in his The Concept of Law attempts to build a much more sophisticated form of positivism embodying primary rules governing human conduct as well as secondary rules (a) which determine which primary rules exist within the system and (b) which govern the introduction and modification of such primary rules.  In this vein as well, Hart also recognizes the need for the “bulk of society” to internalize the binding nature of law.  Hart understands well that the physical crown in itself does not “prove the king.” I plan to discuss Hart further in the blogs that follow.

---

[1] See Daniel J. Kornstein, Kill All the Lawyers? Shakespeare’s Legal Appeal xi-xvii (Princeton U. Press 1994); Mark Andre Alexander, Shakespeare’s Knowledge of Law: A Journey Through the History of the Arguments, http://www.shakespearefellowship.org/virtualclassroom/Law/index.htm (accessed Dec. 9, 2010). When citing to Shakespeare, my general preference is to use The Complete Pelican Shakespeare (Orgel & Braunmuller, eds.)

[2] As Shakespeare will help us see, nothing (including law) is simply given in itself.  We impose our own meanings on everything we study or do.  However, as Emily Dickinson notes, community sets firm semantic limits:

Much Madness is divinest Sense -

To a discerning Eye -

Much Sense - the starkest Madness -

'Tis the Majority

In this, as all, prevail -

Assent - and you are sane -

Demur - you're straightway dangerous -

And handled with a Chain –

Dickinson, Poems of Emily Dickinson (R.W. Franklin, ed.)  278. That is not to say, however, that such meanings cannot shift or change over time.  They can with proper persuasion thus highlighting the inseparability of law and rhetoric even at law’s most fundamental levels.  For a nice discussion of semantic communities and their resistance to change, see Robert Benson, The Interpretation Game 74-75 (2008). By “semiotics of law” I therefore mean the study of legal terms, provisions and discourse within their current, generally-accepted semantic framework. 

[3] Edwin W. Patterson, Men and Ideas of the Law 86-87 (1953). Positivism takes on other forms.  For example, H. L. A. Hart defines positivism as “. . . the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though they often have done so.” H. L. A. Hart, The Concept of Law 185-186 (2d ed., Oxford U. Press 1997).

[4] Patterson supra n. 3, at 87.

[5] Id. at 86. (Patterson). If one believes in the concept of divine right of kings, the threat of punishment would also come from an awful cosmic level.  See e.g. Richard II, act 1, sc. 2, lines 37-38 (where Gaunt refers to Richard II as “God’s substitute” and “His deputy anointed in his sight).

[6] This is not factually accurate but serves Shakespeare’s purposes in the play. John’s brother Richard I actually named John his heir and his succession followed after some uncertainty.  See W. L. Warren, King John 48-50 (1996).

[7] King John, act 1, sc. 1, line 4.

[8] There is no clear single historical personage corresponding to the Bastard but, again, the character serves Shakespeare’s purposes in the play.  All the political plays contain historical liberties and I shall correct none further.  I make these initial observations simply to caution the reader to learn his actual political history of the times from other sources.

[9] Macbeth, act 5, sc. 2 lines 19-22.

  [10] This leads us to a further difficulty with positivism.  It is certainly logically possible to imagine a community with a set of laws which it simply obeys and which were never promulgated by a sovereign.  When Henry V, for example, takes the throne, he requests the Lord Chief Justice to continue to assist him in application of the laws of England as he had done for his father Henry IV.  See 2 Henry IV, act 5, sc. 3, lines 102-145. Henry V thus realizes that English law is more than edicts of sovereigns but also includes ancient rights and traditions.  Id.

[11] King Lear, act 4, sc. 5, lines 153-154.

[12] As Hart points out, interregnum problems under this theory run deeper still.  Must not all of a sovereign’s laws die with him since one cannot obey the dead?  Must there not always be an extended interregnum between “sovereigns” since habits require time to be acquired?  See Hart, supra n. 3, at 52-55.

[13] 2 Henry IV, act 5, sc. 3, line 136.

[14] The sanction element creates still further problems since many legal acts involve no sanctions at all (such as procedural or donative transfer laws).  See Hart, supra n. 3, at 27-33.

[15] King John, act 3, sc. 1, lines 153-158.

[16] Dido’s sister overconfidently believes that Aeneas has come to stay and wed Dido:

            Surely by dispensation of the gods

            And backed by Juno's will, the ships from Ilium

            Held their course this way on the wind.  Sister,

            What a great city you'll see rising here,

And what a kingdom, from this royal match!

Virgil, The Aeneid 96-97 (Robert Ftizgerald trans., Everyman's Library 1992). Aeneas was indeed driven by fate and the gods but for a very different purpose and to a very different end.  Dido and Carthage were but a stop on the way to Aeneas's fated founding of the Roman race.  Palladas similarly points out the folly of those who claim to know divine will:

They say Sarapis spoke within a dream

            To a killer one night sleeping underneath

A failing wall:  “Poor wretch, get up and seek

            Another place to sleep.”  The man complied.

The wall collapsed right after he had moved.

            His life so spared, the villain then rejoiced

Believing that Sarapis must approve

            Of murderers.  The man gave sacrifice

Of thanks for his escape when morning came. 

            Sarapis spoke again to him at night:

“You think I guard the evil?  You escaped

            A painless death to die upon a cross.”

Palladas, The Complete Palladas 15 (Harold Anthony Lloyd trans., CreateSpace 2010). The hubris of Dido’s sister and Palladas’ thief ignores the endless other possible interpretations of their facts just as Jerry Falwell, for example, did in attributing the September 11 bombings to the wrath of God. See Act Up, Rev. Jerry Falwell (with Rev. Pat Robertson) blames pagans, abortionists, feminists & gays and lesbians for bringing on the terrorist attacks in New York and Washington, http://www.actupny.org/YELL/falwell.html (accessed Nov. 21, 2010).

[17] King John, act 5, sc. 7, lines 30-34.

[18] Richard II, act 3, sc. 2, lines 54-57.

[19] Id. at act 3, sc. 2, lines 58-62. (Richard II)

[20] Id. at act 3, sc. 3, lines 77-81. (Richard II)

[21] Id. at act 4, sc. 1. (Richard II)

[22] Id. at act 3, sc. 3, lines 91-100. (Richard II)

[23] Id. at act 5, sc. 6, lines 45-46. (Richard II)

[24] See generally Hamlet.

[25] 1 Henry IV, act 1, sc. 2, lines 23-29.

[26] King John, act 2, sc. 1, line 273.

[27] Id. at act 4, sc. 2, lines 9-16. (King John)

[28] King Lear, act 4, sc. 6, lines 153-154.

[29] See Hart, supra n. 3, at 80 (noting that “. . . the ideas of orders, obedience, habits, and threats, do not include, and cannot by their combination yield, the idea of a rule, without which we cannot hope to elucidate even the most elementary forms of law”).