1 The benefits of engaging with Shakespeare

Shakespeare is undeniably canonical, and the study of Shakespeare is dominant at all stages of literary study from high school to university.Footnote ¹ Some scholars see this dominance as problematic because it overshadows the literary and dramatic output of other artists, not least Shakespeare’s contemporaries in the early modern period. There is obviously some truth in the objection. I want to suggest, though, that for the jurist – whether academic or practitioner – the canonicity of Shakespeare and Shakespearean studies is positively advantageous because it confers on Shakespeare a corpulence to rival the massy corpus of law and jurisprudence. Law is a field staffed by a long historical succession of expert practitioners, readers and glossators. This gives it a certain imperious status that breeds in its workers – the jurists – a colonising confidence to subjugate other territories of word and thought. Hence legal scholars working at the borders of other disciplines occasionally trample carelessly on neighbouring territory. The Shakespearean body, precisely because of its canonicity, has the weight to resist law’s empire. Practical experiments in interpretation and application are being done continually in relation to the texts of Shakespeare on a scale and to a depth that rivals the experiments of interpretation and application that in law go by the names of case and commentary. Shakespeare, in short, is no pushover. Jurists can approach the Shakespearean body without fear of colonising it or of contaminating it fatally with the legalistic germ. Because the Shakespearean corpus of work is big enough and healthy enough to resist the law, it becomes an ideal candidate for a mutually beneficial encounter between those two bodies of thought and practice. The notion that we might conceive of law and Shakespeare as parallel fields of thought and practice, and thereby connect each to the other to their mutual advantage, is a much healthier vision than the alternative in which law is presumed to have something to say about Shakespeare and Shakespeare is presumed to say something about law.

In describing legal cases and commentary as law’s ‘experiments’, I am inspired by Rhodri Lewis’s choice to describe Shakespeare’s tragedies as experiments (chapter two is entitled ‘Early Experiments’) and to describe Claudius’s cross-examination of himself in the chapel (‘Offence’s gilded hand may shove by justice … But ‘tis not so above’ (Hamlet 3.3.58 etc.)) as ‘an experiment or trial’ (Lewis 2024, p. 116). Shakespeare’s tragedies are essentially experimental in the way that they put possibilities under stress in a furnace inflamed by human will and fuelled by the factual matter of life. A common law legal trial performs a similar type of experiment in which the ‘possibilities’ to be tested are presented by advocates in the form of arguments and submissions. In chapter four of his book, ‘Being, Wrought’, Lewis quotes the Prologue to Troilus and Cressida, who says he has come ‘suited / In like conditions as our argument … Beginning in the middle …’ (1.0.24–25, 28) (Lewis 2024, p. 129). This, as Lewis notes, follows the conventional scheme of Homeric and Virgilian epic by commencing the narrative in medias res. We can add to this that the reference to ‘argument’ is a classical convention that has been used to frame rhetorical dispute in law as well as in dramatic poetry. Additionally, there might be a secondary and specific allusion to an audience of lawyers. Lewis acknowledges the ‘play’s original audiences at the Inns of Court’ (Lewis 2024, p. 145) but doesn’t mention the possibility that the Prologue’s phrase ‘[b]eginning in the middle’ might have been an allusion to performance at Middle Temple, one of the Inns of Court (Berry Reference Berry2001).

2 The benefits of engaging with the tragic

One reviewer of Lewis’s book offers, as a brief abstract of its core contention, that ‘Shakespeare saw tragedy first and foremost as a dramatic mode for exploring and laying bare the kinds of self-delusion that are necessarily inherent in the process of trying to make sense of one’s own life’ (Perry Reference Perry2025). The struggle to ‘make sense’ is, I suggest, the key endeavour that connects the practices of law with the practices of Shakespeare as a poet of tragic drama. Law and tragic drama are twinned responses to the accidental incidents of human life. The word ‘poet’ means ‘maker’, and we will find it helpful to regard professional poets and professional jurists as rhetoricians working in the shared business of trying to make sense of life through processes that translate events into words. The tragic accidents of life become, in Hamlet’s metaphorical language, the ‘slings and arrows of outrageous fortune’ (3.1.60) and ‘the thousand natural shocks / That flesh is heir to’ (3.1.64–65). In lawyers’ language, the same events become ‘faults’, ‘actionable breaches’ and sometimes simply non-actionable ‘vicissitudes of life’.Footnote ² That word ‘vicissitude’, which is a dead metaphor for something like the ‘twists’ and ‘turns’ of life, is a thin etymological thread removed from the lawyers’ sense that a ‘wrung’ or ‘twisted’ human action may be actionable as a ‘wrong’ or ‘tort’.

Hamlet’s comment on flesh as an inheritor of vulnerabilities (‘the thousand natural shocks / That flesh is heir to’ (3.1.64–65)) indicates that our bodily constitution, and with it so much of life’s happiness, turns to a humbling extent upon that which has come down to us rather than upon any factor over which we can exert the influence of our wills. We are subject to that which falls to us. The same is true of the ‘slings and arrows of outrageous fortune’, for the slingshot and arrows of life’s unfortunate events strike us not on their way up but on their way down. Hamlet isn’t bemoaning the slingshot and arrows that are under his own command to throw, but those thrown against him (ob-jactus) and to which, being thrown under them, he is made subject (sub-jactus). Given this sense that we are subject to things that fall upon us, it is little wonder that the metaphors we commonly use to describe our accidental fortune include the casting of lots and the dealing of cards. Such metaphors enshrine an essentially tragic downward trajectory. In the Biblical account, the tragedy of Adam and Eve is expressed not in their haughty attempt to ascend to divine heights, as the Greek mind might so describe it, but in their ‘Fall’ from a state of Divine grace. The lawyers’ word ‘case’ provides a formal clue to the fact that law and drama are twinned contexts for the appreciation of humanity’s tragic subjection to the fall of fate, for ‘case’ is shorthand for a set of facts that have cascaded down. In the medical context, it is when we ‘fall’ ill that we are said to have ‘a case’ of flu, mumps, measles, etc. A legal ‘case’ typically originates in a fateful event to which we give the name ‘accident’ because it befell, or ‘fell to’ (ad-cadere) us. These facts, falling out, are translated by advocates into ‘submissions’ (being, etymologically, arguments ‘put under’ the judge’s authority), and as the case cascades down it ultimately falls to the judge to hand down a decision. The very word ‘decision’ indicates a falling or a ‘letting fall’ and is cousin to the falling leaf that characterises certain trees as ‘deciduous’. Thus, legal judgment has all along its course a downward, and therefore deathly and therefore tragic trajectory. It is something of a self-deceiving trick to pretend that the ‘tragic fall’ of poem and drama is reserved for grand personages who have lost their high status. The truth is that we, all of us, from the moment we are lifted up to life, commence our fall down to death. This is our common truth and our common tragedy. Tragic art is the means by which we express the beauty inherent in the shared nature of our common, fateful, fatal, fall. As the nursery rhyme puts it – ‘we all fall down’. One of Shakespeare’s comedic but melancholic characters perceived the beauty of ‘a dying fall’ in a musical cadence. Life and law entail ‘cas-cadence’ or ‘case-cadence’, in which fall follows fall as in a flight of waterfalls. It falls to judges and playwrights as poets to try on behalf of us all to translate the tragic fall of facts into new courses and new forces.

How fitting to all this that Shakespeare’s tragic drama was greatly influenced by the de casibus literary tradition. The Latin phrase in full – de casibus virorum illustrium – indicates that it is a genre that tells ‘of the cases of illustrious lives’. Another, and perhaps more common, translation calls it the stories ‘of the fall of illustrious lives’, but if the falling etymology of casibus must be alluded to, it would be better to translate the Latin as ‘that which befell illustrious people’. This translation would at least remind us that the relevant fall is not the noble person’s descent from high status to low, but the fact that it is common to humanity that things befall us – accidents happen. There is an echo of this tragic sense of things falling on top of us when, at his sister’s grave, Laertes calls upon the gravedigger to bury him with Ophelia, saying ‘Now pile your dust upon the quick and dead’ (5.1.247), which Hamlet amplifies with ‘let them throw / Millions of acres on us’ (5.1.277–78). The tragedy of Shakespeare’s King Richard II is dramatised in the king’s fall from power, but equally in what befell him, as when ‘rude misgoverned hands from windows’ tops / Threw dust and rubbish on King Richard’s head’ (Richard II 5.2.5–6). The ‘dust’ referred to here is likely a euphemism for domestic sewage, suggesting an historical antecedent for the modern lament – ‘shit happens’ – which is commonly applied to the accidents that befall us. When Shakespeare’s King Richard utters those plaintive lines, ‘For God’s sake, let us sit upon the ground, / And tell sad stories of the death of kings’ (3.2.151–52), this is surely an allusion to the de casibus genre and specifically to The Mirror for Magistrates (1559) in which the first royal life reflected upon is that of Richard II. The Mirror was a sequel to John Lydgate’s Fall of Princes (c. 1431–38), which in turn followed Boccaccio’s De Casibus Virorum Illustrium (1355–74). The medieval French translation of Boccaccio’s title – Des Cas des nobles hommes et femmes – makes philologically plain the tragic ‘cas’ or fall that connects the literary art to the jurist’s art of the ‘case’.

3 The benefits of engaging with art

Jurists will find all manner of legal resonance in Lewis’s ideas about Shakespeare’s art. To give one small example, there is his observation that ‘when a character speaks in rhyming couplets, he or she is attempting to create the impression of order, authority, or understanding where it does not exist’ (Lewis 2024, p. 132). Jurists might reflect that the cant of judicial speech, in such standard forms as ‘it therefore seems clear to us’, ‘we are therefore bound to conclude’, etc. does similar rhetorical work by performing solidity, stability and finality on a foundation of shifting factual sands.

One of Lewis’s chapters, and the one I will focus on here, is ‘Things, Things, Things’. The phrase is a play on Hamlet’s ‘Words, words, words’ (2.2.195), and the point of Lewis’s wordplay is to introduce an examination of the scholarly turn from philology to materiality. Lewis naturally focuses on the material cultural turn in Shakespeare scholarship, but what he has to say will serve to challenge the general neglect of material culture in legal practice and legal scholarship. Lewis takes his cue from Bill Brown’s ‘thing theory’. Inspired by Heidegger, Brown equates thingness with a materiality subsisting below the level of objecthood. Lewis gives the example of a stopped clock as a thing that becomes evident in its materiality only because we are no longer distracted by its objecthood as a chronometer. I personally prefer Tim Ingold’s reading of Heidegger, which regards a thing as a network of socially significant appreciations of a material object (Ingold Reference Ingold2010). On this view, and to borrow from Hamlet, ‘A king is a thing’ (4.2.27), even though the king, being a corporation independent of any particular human body, is in a material sense (to complete Hamlet’s quotation) ‘of nothing’ (4.2.29). Whatever labels one applies to fundamental material stuff and the social fictions we make of such stuff, both the matter and the making are worthy of attention. Does Lewis slip up, though, when he contrasts ‘the fictions through which we seek to impose order on our lives’ with an assumed extra-fictional or non-fictional ‘reality’ (Lewis 2024, p. 96)? Why should the fictions not be real? Why should fictions not make, or make up, reality as we perceive it? Certainly, the reality or res of law is never an untested, unattainable abstraction, conception or ideal, but is always the practical matter at hand – hence the standard common-law mode of denominating cases ‘In re Bloggs’ or ‘Re Jane Doe’. A law case is always deeply and essentially a fictional construct that creatively translates mere probabilities into meaningful legal material (Watt Reference Watt2023). The reality of drama is likewise an entirely fictional one. Lewis comes close to this when, with a hint of legal language, he conjectures that ‘the one forum in which supernatural beings like ghosts or fairies could be apprehended unambiguously was the theatre’ (Lewis 2024, p. 103). In a forum of make-believe we believe the made-up. Legally, dramatically and rhetorically speaking, ‘reality’ is, in human contexts, the label that we give to an order made by fictional means. If there is inevitably a cloud of confusion at the border of our understandings of fiction and reality, Lewis has nevertheless seen fascinating shapes in the cloud. Hence the suggestion, crucial to his appreciation of Hamlet, that the human being is one of the ‘things standing thus unknown’ (5.2.350) (Lewis 2024, p. 97). That play starts with the evidential puzzle of the ghost, prompting such forensic questions as ‘has this thing appeared again tonight?’ (1.1.19), ‘is it the ghost of Hamlet’s father or a deceiving demon’ and is it really there? Andrew Zurcher reads the opening two words of the play ‘who’s there?’ as the legal question, pertinent to the play, ‘who’s th’heir?’ (Zurcher Reference Zurcher2010, p. 229). Despite his words of oath and obedience, Hamlet shows in his actions that he is not fully persuaded by the ghost. Conjecturing that the ghost ‘[m]ay be a devil’ (2.2.601), he resolves, in detective or judicial mode, to ‘have grounds / More relative than this’ (2.2.605–6) to establish the guilt of Claudius. As Lewis puts it, ‘Hamlet is on his case’ (Lewis 2024, p. 104). Lawyers and rhetoricians will recognise Hamlet’s instinct to test the probabilities of the case. It is elsewhere evident in Hamlet’s ‘to be, or not to be’ (3.1.58), which Lewis rightly identifies as being ‘not … a problem demanding an answer, but a quaestio – a subject of contention in rhetorical debate or disputation’ (Lewis 2024, p. 108). Lewis notes that Cicero’s Tusculan Disputations is a possible source for Hamlet’s most famous phrase but adds as an enticing alternative candidate Aristotle’s line: ‘For not even “to be” or “not to be” is a sign of a thing … for by itself it is nothing’ (Lewis 2024, p. 109) (Aristotle, On Interpretation, 16b19–25). Lewis sees the unreliability of appearances in Hamlet as a fatal obstacle to what he calls ‘the Ciceronian-humanist model of moral philosophy – in which the world is a well-ordered stage play’ (Lewis 2024, p. 103). That might be true, but the pre-eminent Roman lawyer-rhetorician Cicero would appreciate the policy and practical prudence of Hamlet’s process of testing all sides of the issues before him. As is well known, Hamlet seeks further grounds against Claudius by means of the play-within-the-play. Lewis portrays that staging as a kind of trial in which the key piece of evidence is the fact of Claudius rising ‘in disgruntlement’ (Lewis 2024, p. 104). Lewis observes that Hamlet was wrong to consider this a ‘forensic triumph’ (Lewis 2024, p. 106), for though we have the evidential fact of the king’s rising, this turns out to be an incomplete proof of guilt. Lewis shows that this material fact disperses into a new cloud of doubts in which we cannot know if Claudius rose because he has just witnessed a representation of the murder he had himself committed or because he was angered by Hamlet’s threats. We might as well say that Hamlet has achieved nothing more substantial than to add a second ghost to the first. This brings us to the crux of the argument of the chapter, which Lewis expresses in Heideggerian language:

And hence we come again, and at last, to the ‘Art’ of the book’s title, which in Lewis’s conception is the art of making sense of the apparent facts (to ‘botch the words up to fit their own thoughts’ (4.5.10) (Lewis 2024, p. 107)). If this process of making meaningful sense of facts is fictional it is on that account little different to the processes by which courts, witnesses and readers make ‘facts’ out of the evidence presented to them. As their etymology of the Latin verb facere (to make or do) indicates, ‘facts’ no less than ‘fictions’ are made things, and scholars of law will do well to learn from scholars of literature that there is art in their making. Lewis, who had seemed to begin the chapter by contrasting fiction to reality, resolves in the end to accept the essentially fictive nature of our efforts to be real. He expresses the point artfully and artistically, and indeed artificially, by means of an elegant rhetorical chiasmus: ‘It is not that artifice gets in the way of philosophical and personal integrity, but that philosophical and personal integrity is a form of artifice’ (Lewis 2024, p. 116). Thus we ‘cleave to the belief, or the ghost of the belief, that we can understand who and what we are’ (Lewis 2024, p. 116). Without falling into the trap of making Shakespeare a didact, Lewis does claim that in Hamlet Shakespeare ‘makes the case … for tragedy as the best and only medium through which one might discern what it is to be human’ (Lewis 2024, p. 124). No doubt Shakespeare makes such a case and makes it brilliantly, but surely Shakespeare elsewhere makes a contrary case, as a rhetorically educated dramatist inevitably will. The contrary case posits comedy ‘as the best and only medium through which one might discern what it is to be human’, but that will have to wait for a sequel to Rhodri Lewis’s fine book.