"Nature Hath Framed Strange Fellows" William Shakespeare and Natural Law

A. Introduction

             

             Natural law theorists might turn to The History of Troilus and Cressida to start building their case.  They might begin with Ulysses’ lofty outline of the “natural” order:

The heavens themselves, the planets, and this center          

Observe degree, priority, and place,                            

Insisture, course, proportion, season, form,                    

Office, and custom, in all line of order,                       

And therefore is the glorious planet Sol                        

In noble eminence enthroned and sphered                         

Amidst the other; whose med'cinable eye                         

Corrects the influences of evil planets

And posts, like the commandment of a king . . . .[1]                      

Such theorists might then use Ulysses’ further stirring words to blend such “natural physical order” with a “natural order” in law and morality as well:

Take but degree away, untune that string,                      

And hark what discord follows. Each thing meets                

In mere oppugnancy.  The bounded waters                          

Should lift their bosoms higher than the shores              

And make a sop of all this solid globe;                         

Strength should be lord of imbecility,                          

And the rude son should strike his father dead;                 

Force should be right; or rather right and wrong,             

Between whose endless jar justice resides,                    

Should lose their names, and so should justice too.^[2]                             

As far as it goes, it is hard to imagine a more eloquent case for natural law than this.

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.