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.

Ballade of King John (Addition to "The Apology Box")

                   Ballade Of John Lackland*

            (English king & Richard I's brother)

Although I spilled much blood in France, I would

Have spared it had I means.  But they gave me

No choice.  Vast English lands within France could

Not spurn their sovereign with impunity.

When Anjou, Maine, Poitou and Brittany

Rebelled, I therefore fought.  What choice had one

Who held the crown, who must thus faithfully

Protect the English realm?  God's will be done.

Yet, when the fighting came home, too, I would

Not fight those barons who might murder me

And bring down England, too.  I understood

Consent under duress is legally

Not binding.  With such practicality

I saved the crown and nation.  Having done

So, I proved John would ever faithfully

Protect the English realm.  God's will be done.

Likewise, I fought that "Innocent" who would

Behind misnomers do his treachery

(Like wolves in sheep skin).  Therefore, I withstood

That scheming Roman priest across the sea

Who smelled our English lambs here grazing free.

He would have fleeced them had the Lord picked one

Less faithful, had the Lord not ordered me:

"Protect the English realm!" God's will be done.

O Lord, I only ask for serving thee

Long days for Albion.  When anyone

Presents a threat, King John will forcefully

Protect the English realm.  God's will be done!

*According to various sources, the poet’s 24^th great-grandfather through Thomas Yale and 26^th great-grandfather through Anne Lloyd Yale.

© Harold Anthony Lloyd 2016
  
The current contents of "The Apology Box" can be found here.