| Shakespeare's Lesson for Lawyers: How to Access Empathy
August 18, 2008
Why do students still read Shakespeare? A conspiracy of finger-wagging, we-know-what's-best-for-you high school English teachers? No. It's his empathetic powers, making people see ourselves as we are - rationalizations not permitted.
Shakespeare has much to teach lawyers. Eschewing Judge Judy, his questions are penetrating: How should judges go about judging? Does the rule of law matter? Are mercy and justice mutually exclusive or are they complementary?
Let's take a look at one of his many classics. The setting of "Measure for Measure" is Venice. The city's morale and institutions are folding like cheap tents in the wind (think New York City, circa 1975). The city's leader, the duke, appoints Angelo, a strict constructionist, as the chief judge. Still, the duke harbors doubts, sensing that being a wise judge takes more than being a smart lawyer: "Lord Angelo is precise; Stands at a guard with envy; scarce confesses That his blood flows, or that his appetite Is more to bread than to stone."
But believing Venice needs a strong judge, the duke sticks by his appointment. Not surprisingly, once he takes the bench, Angelo is Angelo: no room for nuance, no space for doubt, no understanding that the spirit of the law is the spirit that is not always sure that it is right.
This orientation leads to a dire ruling. A citizen, Claudio, has impregnated his fiancée, placing human desire before sacramental marriage. It is a capital offense. Angelo signs the death warrant. Finally, Venice will get back on track, or so he believes.
Claudio's sister, Isabella, goes to plead his case before Angelo, arguing that, if the positions were reversed, surely Claudio would spare Angelo. She presses on, arguing disparate treatment: "Who is it that hath died for this offense? There's many have committed it." Judge Angelo is incredulous, telling Isabella that she is asking him to condemn only the fault, but "not the actor of it," and that is not what judges do. And, in response to the disparate treatment argument, "The law hath not been dead, though it hath slept." In other words, there is a new sheriff in town, and neither past decisions nor a lesser penalty will be considered.
Angelo lacks what good judges know intuitively: Context matters, and it matters a lot. Why? Because acknowledging its importance leads to proportionate decisions, calibrated to a just result, not just a mechanical, predetermined one. So far, so good. But how does Shakespeare structure the narrative to illuminate this central point? He makes Angelo all too human.
While unmoved by her reasoning, Angelo is greatly moved by her attractiveness and spirit. He makes her an offer: "redeem thy brother By yielding up thy body to my will."
Isabella tells her brother, who embraces the proposition, arguing that results matter, not the means to them. After all, he reasons, Angelo is a judge; a judge is smart; if such "yielding" was not the right thing to do, then he surely would not have proposed it.
But Isabella is as clever as she is attractive. She tricks Angelo: His ex-girlfriend, at Isabella's urging, takes Isabella's place and meets Angelo at the appointed place and time, albeit at night where identities can blur. The sordid matter is exposed, and Angelo put on trial with the duke as judge. The duke spares Claudio but does not tell Isabella, who believes that Angelo reneged on his promise and has had Claudio executed. The duke, like a cruel deity, wants to get the ball in play and see what results. At the trial, Angelo's ex pleads for mercy. She begs Isabella to convince the duke to spare him.
What is Isabella to do? She has, she thinks, a dead brother by Angelo's hand; an attempted rape of herself, where her virginity would be forfeit; and Angelo's lovelorn ex. Here are the models of judging that she has been exposed to. There is Angelo's harsh, binary version, whereas Claudio embraces the time-honored, decide-the-result-you-want-and-then-back-into-the-reasoning model. The duke is on record as believing the best model of judging is an "eye for an eye," which he euphemistically casts as "measure for measure." Yet adhering to any of the models leads to the same result, with Angelo's head ending up in a basket.
But Isabella, like a wise Buddha, takes a middle way. She reasons that, yes, her brother died, but at least he was guilty of "the thing for which he died." By contrast, Angelo did not take her virginity. His plan never came to fruition: "his act did not o'ertake his bad intent And must be buried but as an intent That perish'd by the way." Execution is thus not called for.
Her mercy is anchored in this legal analysis, not apart from it. She intuitively understands the rule of law: Shortcuts are not allowed, revenge is not permitted and sloppy reasoning is not welcome. It is certainly not derived from the free-floating mercy that Angelo so feared. She reasoned her way to the right result. It's harder work than the other judging models, but creates a just outcome.
"[N]othing human is alien to me." That's Terence, a Roman poet. It's the same with Shakespeare. Read him and see how human nature repeats itself, again and again. Angelo, former New York Gov. Eliot Spitzer and pastor Jimmy Swaggart would understand one another, each consumed by what he sought to extinguish.
Yet Shakespeare gives readers more than pattern recognition. He teaches lawyers how to access their most powerful tool - empathy. He shows how to grasp the what, but more importantly, the why. Now, that's timeless.
Michael P. Maslanka is the managing partner of Ford & Harrison in Dallas. His e-mail address is mmaslanka@fordharrison.com. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He writes the Texas Employment Law Letter.
