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Keywords: Shakespeare, Law, Literature, Rule of Law, Justice, Society, Culture, Language

The Baldy Center Blog Post 57
Blog Author: Patrick J. Long, Assistant Dean for Professional Development, University at Buffalo School of Law
Post Title: "A Scarecrow of the Law"

As Measure for Measure opens, we encounter a Vienna in chaos. The Duke, as sovereign, has failed to enforce the law. As a result, crime, disease, and disorder have become endemic. He confesses:

                So our decrees,
        Dead to infliction, to themselves are dead,
        And liberty plucks justice by the nose,
        The baby beats the nurse, and quite athwart
        Goes all decorum.

Rather than fixing the problem himself, however, he decamps from Vienna, appointing the strait-laced Angelo in his place. The plot turns on Angelo’s first act: to re-enforce the law against fornication, a capital offense. Caught in this net is Claudio, for getting his fiancée pregnant. He is condemned to death, as the law requires. Isabella, his sister, leaves her convent to beg Angelo for her brother’s life.

With his typical irony, Shakespeare puts the argument for the rule of law in the mouth of the play’s most detestable character: Angelo. When Isabella pleads for him to ignore her brother’s crime, arguing that “[t]here’s many hath committed it,” Angelo refuses: “It is the law, not I, condemn your brother.” He is ruled by the law, he maintains, not his personal preference. Later, he expands his legal theory:

        We must not make a scarecrow of the law.
        Setting it up to fear the birds of prey.
        And let it keep one shape, till custom make it
        Their perch and not their terror.

The law must move swiftly to correct wrongdoing; otherwise, it becomes an empty husk. This had been the Duke’s failure: by failing to prosecute, he allowed lawlessness to take over his city. As Angelo says, “The law hath not been dead, though it hath slept.” Were he to wink at Claudio’s crime, Angelo would be repeating the Duke’s error. (Granted, fornication should not be a capital offense. But there would be little drama if the issue were a citation and fine.)

Isabella, the most sympathetic character in the play, argues for a different idea of law. She wants Angelo to:

                    Go to your bosom
        Knock there, and ask your heart what it doth know
        That’s like my brother’s fault. If it confess
        A natural guiltiness such as is his,
        Let it not sound a thought upon your tongue
        Against my brother’s life.

This is Christ’s admonition “Judge not, lest ye be judged,” rephrased as a legal maxim. And we immediately side with her in the debate. Shakespeare even stacks the deck in her favor: we know things she does not. We know Angelo secretly lusts for Isabella, the same fault he condemns in Claudio. We know he has already mistreated his former fiancée. And we know that the Duke has orchestrated the entire charade as a test of Angelo’s character. We are meant to agree with Isabella.

Yet we cannot, or should not, take Isabella’s side if we care about the rule of law. Yes, Isabella captures our hearts. Yes, Angelo is a rat fink. But he is also correct: it is the law that condemns Claudio, not Angelo. Isabella believes that by looking into his heart and seeing his own flaws, he would more likely pardon the faults in others. That’s likely true. But that is not the rule of law. Isabella wants Angelo to substitute his will for the law. That is the rule of man.

True, the heart of man may, as it should, bear sympathy for the accused. But sympathy cannot be a substitute for enforcement of the law. While we hate Angelo, he does have a point. The law must apply equally to all, and to all equally. If we allow our feelings for one defendant to trump enforcement, our antipathy toward another could lead us to punish that defendant more harshly. Following our hearts, or our spleens, rather than the law, is no way to run a city. It will certainly not lead to “justice, justice, justice, justice!”