In Praise of the Pound of Flesh: Legalism, Multiculturalism, and the Problem of the Soul

Abstract

Has legalism run amok? In our world of bureaucratic rules, disclaimers, and P.C. codes which are perceived to supplant our common sense, many have expressed the view that law has spun out of control. We have lost sight of ordinary ethics, these critics claim; we sue too much, worry too much, too often rush to rules instead of virtues. We have become, in short, a nation of Shylocks.

I think Shylock deserves a second look. This essay reassesses the "common sense" critique of legalism that is so much in the headlines, particularly in these days of tort reform, and suggests a reappraisal of Shylock in the context of postmodernity and multiculturalism. Part I briefly recaps the famous scene in Shakespeare's MERCHANT OF VENICE where Shylock demands his legal entitlement, a pound of Antonio's flesh, rather than other compensation, and asks that we read Shylock as a multiculturalist whose "stand for justice" uses the literal law as a way to oppose the hegemonic spirit of his interlocutors. There is nothing universal, Shylock and the multiculturalists argue, least of all that which we assume to be, and the text is where we arbitrate our differences. Part II contrasts Shylock's law with a jurisprudence that values "common sense," epitomized by Justice Potter Stewart's famous "I know it when I see it" dictum. There, I argue that taking the letter of the law seriously provides us with a locus for debate and reasoning and moves the debate away from the inaccessible consciousness of the judge and onto the shared text of the law. Finally, Part III argues that if lawyers are somehow to become virtuous dispensers of good character, the "spirit of the law" brings into play all sorts of problems of the self, identity, and culture, which are better suited to academic discussion than the domain of law and violence.

What would it mean, though, for us as people to take Shylock seriously? After all, Shylock is not a well-rounded human being; is this what we are to become in the coming century? I conclude with an iteration of how one can keep her soul (after a fashion) in Shylock's world: a Jewishly-grounded ethics, and ethos, of alterity. Drawing on the work of Levinas, Rosenzweig, and Derrida, as well as the 20th Century Jewish thinker Joseph Soloveitchik, this essay imagines not just a jurisprudence but also a way of life that treats our responsibilities to the incommensurate. Other as precedent to our own subjectivity, and which encodes that responsibility in a set of written rules that exist beyond ourselves.

Keywords: legalism, multiculturalism, law, judaism, antisemitism, shylock, shakespeare, kronman, gewirtz, stewart, obscenity, society, religion, soul, christianity, paul, letter of the law

JEL Classification: K40