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The Displacement of Violence: Measure for Measure, Legal Discourse and Violent Imagery

The Displacement of Violence:
Measure for Measure, Legal Discourse and Violent Imagery

Klaas Tindemans

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[1] Shakespeare’s Measure for Measure premiered, probably, during the summer season of 1604. On 26 December 1604, it was performed by the King’s Men at the Palace of Whitehall: this was the first time, under James I’s reign, that a new Shakespeare play had been performed at the King’s Court. The play itself adapts the plot of an earlier romance, Promos and Cassandra by George Whetstone – a play with a clear message about the sanctity of law and order – to deconstruct certitudes underlying any legal order or any concept of sovereignty: the comedy is turned into a ‘problem play’. Duke Vincentio of (an imaginary) Vienna leaves his town and appoints Angelo as a temporary replacement. But Vincentio disguises himself as a friar and watches closely how Angelo governs the city. The real reason for his departure is his own assessment of himself as a weak ruler, frustrated at not being able to enforce the severe laws of the city. He knows that Angelo is a strict administrator of the law – and proud to be so. Angelo immediately enforces rules against sexual license, particularly against sex out of wedlock, even if for decades these rules had fallen into complete disuse, thanks to Vincentio’s laxity (as he himself suggests). Claudio and Juliet love each other passionately, and Juliet has become pregnant. This is indeed physical proof of an infringement of the law, and in Angelo’s eyes it leads linea recta to the death penalty for Claudio.

[2] With his first appearance on stage, Angelo, the deputy Duke, reveals his personal concept of law. He embraces a ‘legalist’ notion of the law, seen as a command to strict adherence to the rules – a warning for lenient judges – and an unqualified belief in the efficiency of legal deterrence. The reply by his counsellor, the old Lord Escalus, is subtle but ineffective, at least at this point in the story.

Angelo: 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.

Escalus:              Ay, but yet
Let us be keen, and rather cut a little,
than fall, and bruise to death.  (2.1.1-7)

From a dramaturgical point of view, Angelo’s statement about legality confirms his reputation as a political and moral ‘hard-liner’, all too eager to avoid (or to suppress) any possible mistakes, in the administration of justice, during his replacement of the Duke of Vienna. The Duke, incognito, observes that Angelo acts true to his reputation. A couple of observations can be made when closely reading these lines. Firstly, Angelo’s severity and Escalus’s reply are formulated in rather violent terms – ‘birds of prey’, ‘terror’, and Escalus’s reaction repeats this imagery – ‘cut a little’, ‘fall’ (in the transitive sense, as in ‘felling a tree’), ‘bruise to death’. Secondly, the conversation takes place in a courtroom, so a link could be established between (theatrical) space and the weight of the words/images. The law is thus confirmed, by the administrator of the law himself, as a violent and protean instrument of sovereign power. But the wording of their legal-theoretical convictions might not be convincing proof of the violent nature of their ideas. However, the discussion touches a much more fundamental problem, which will be at stake until the end of the play: the identity of two political personae, i.e. the sovereign, who establishes and embodies the law, and the judge, who interprets and applies the law. This identity will result, both for Angelo, in his proposal to Isabella, and for the Duke, when he finally unveils himself, in the (plausibly) excessive use of (non-)pardoning. The legal figure of sovereign pardon is structurally exceptional to any rule of law, as it suspends both the abstract rule and the concrete, actual judgment (Meyler 2019: 15).[1]

[3] Measure for Measure is a play about the law, or more precisely, about the forensic-rhetorical embedding of the law and, most importantly, about the inherent and actual violence of the law. As the play develops, this problematic comedy becomes a theatricalized status quaestionis about the intertwinement of law and violence in the early 17th century, in England and elsewhere. It might be meaningful to try to dissect this relationship between law as a set of orderly principles and the violence, repressed or not, implied in its enforcement – and to acknowledge the role theatre and drama could have played in this ambiguous relation. That is the ambition of this article.

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A dramatic issue of legal theory

[4] As Jody Enders asserts, the ‘outbreak’ of violent imagery in the early modern era went hand in hand with important developments in forensic rhetoric. Procedural and discursive tools became more prominent, at the expense of proof by physical means, such as torture. In her study of the Medieval theatre of cruelty, Enders claims that classical rhetoric – closely following the manuals of Quintilian, on the one hand, and torture, on the other, reached a point of contradiction: as strange as it may seem today, a rhetorical legal argument had to be corroborated by a statement obtained by torture – as a divine confirmation. This untenable ambiguity could only be solved by the ‘theatricality’ of legal procedure: law re-enacts theatrically, one could say, the violent societal breach caused by a crime, with non-violent means and devices, i.e. with the ‘dramaturgy’ of procedure (Enders 1999: 38-62). Lorna Hutson, in her study of law and mimesis in Renaissance drama (Hutson 2007), develops further the dramaturgical techniques the theatre experimented with. She claims that several experimental dramaturgical devices actually contributed to the ‘discursive turn’ in legal matters and specifically in forensic rhetoric. The ‘tricks’ of early modern legal rhetoric, as used in actual legal procedures, were supposedly coined in the theatre and tested, on stage, for their efficiency. A more specific analysis of Shakespeare’s dialogues by Quentin Skinner confirms this, on the level of the dramatic text itself (Skinner 2014). Late Medieval and Renaissance theatre thus provided a testing ground for ‘cleaning’ the courtroom of overly violent experiences and images, in favour of a new regime of truth. Or, more precisely: theatre juxtaposed a slowly secularizing (rational) idea(l) of the law, on the one hand, and a legal-political system based upon theatrical violence (torture, public execution), on the other, in order to prove, deliberately or not, their logical incompatibility.

[5] These observations imply a significant shift in jurisprudence. They are, of course, related to the Foucauldian understanding of secularisation and transformation of Western society according to a biopolitical paradigm. The aforementioned developments in criminal justice are part of a larger movement, of a gradual displacement of violence in legal – and especially jurisdictional – contexts. Control of the body becomes a matter of political economy; bodies are perceived as workforce and have to be protected as such: productivity and accumulation will prevail, during the centuries to come (Foucault 2001a: 210). But the very open and perceivable contrast between the abundant imagery of physical violence, in performance and elsewhere, and the parallel and gradual evacuation of actual violence from the forensic stage – courtroom, execution place, etc. – deserves special attention, as an aspect of this larger process. Could we speak indeed of a ‘theatrical turn’ in early modern legal discourse, and how does it relate to the representation of violence, in the early 17th century, in general? The sheer existence and the dramaturgy of Measure for Measure as a ‘courtroom drama’ might already be an indication. The question is whether this shift redefines the relationship between violence (as a physical reality) and law (as an official monopoly on violence) as they are present in the public domain. But there is also an underlying issue, regarding the foundation of legal-political authority in the age of biopolitics. In his courses of 1978 at the Collège de France, Michel Foucault explains how political authority shifts from souveraineté to gouvernementalité – his terminology. Souveraineté has a very precise meaning for Foucault: it characterises an authority that is nothing more and nothing less than an end in itself. The sovereign’s goal is the maintenance of power over his territory, on the sole condition that his subjects respect the laws and, more generally, the order of things God imposed on mankind (Foucault 2001b: 645). Gouvernementalité, in contrast, aims at the subjects of authority, and creates an institutional framework, an apparatus and eventually a bureaucracy to deal with their ‘common wealth’ (Foucault 2001b: 655). This shift affects deeply the ‘self-fashioning’ of the prince, as the character of Duke Vincentio indicates, and, consequently, the degree (and the nature) of violence used in exercising his self-fashioned authority. Or, as Jürgen Pieters suggests, the incapacity of both rulers (Angelo and Vincentio) to shift from one notion of authority to another, from souveraineté to gouvernementalité, frustrates them. Shakespeare’s imaginary Vienna figures then as a ‘transit zone’ for the validation of power relations (Pieters 2003: 202). Is this frustration expressed symptomatically in an eruption of (symbolic) violence, new and different from Medieval forensics? A violence inherent in this ‘biopolitical’ transformation of the notion of legality?

[6] Measure for Measure offers some answers to these questions, by exemplifying if not exposing this violent theatricality of the law itself. Samuel Taylor Coleridge commented, in marginalia on the title page of his own copy of the play, that Measure for Measure was ‘the most painful – say rather, the only painful – part of [Shakespeare’s] genuine works. The comic and tragic parts equally border on the [. . .] disgusting [and] the horrible.’ (Coleridge 1961: 102) The play offended both his sense of justice and his image of women (Geckle 1967: 71-73). Measure for Measure deals, as plenty of Shakespeare’s comedies do, with surreptitious or repressed sexual violence, but it is remarkable that it frames the unwanted consequences of this behaviour, implicitly or openly, in a forensic or legal discourse, thus transforming physical aggression into a discursive battlefield. A legal discourse operates as a surrogate for actual images of violent debauchery. The contrast with the explicit violence in some of Shakespeare’s history plays and, most of all, his tragedies, is obvious. It begins with the outrageous bloodthirstiness (rape, mutilation and cannibalism) and spectacular nihilism of Titus Andronicus, and culminates in the complete existential destruction of King Lear and Macbeth. In Measure for Measure, however, the protection of the patriarchal order, supposedly the motive for (political) violence as imitated in these tragedies (Cohen 1993: 1-9), motivates the protagonists as strongly as their belligerent and murderous counterparts.

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Shifts in Renaissance legal discourse

[7] Jody Enders suggests that during the Renaissance Western European jurisprudence was faced with a profound ‘epistemological crisis’, both in theory and in practice (Enders 1999: 36). The resurgence of classical rhetoric, from Aristotle to Quintilian, could be seen as an effort to overcome this impasse. Five elements are distinguished in rhetoric, in judging its effectiveness: inventio (discovery or invention), dispositio (arrangement), elocutio (style), memoria (memory), and pronunciatio (speech). The teaching of classical rhetoric was a pillar of a higher education in the Renaissance. Handbooks concentrated on inventio and dispositio, with inventio most extensively discussed (Skinner 2014: 4). From Aristotle onwards, rhetoric dealt primarily with forensic issues. This is not surprising, since the unfolding of arguments and the assessment of their credibility and veracity steer the process of determining the legal outcome of a conflict. The term ‘evidence’ itself has its origin in rhetoric: the Latin evidentia denotes the brilliance, the clarity of an argument, but its (English) meaning has shifted to (preferably written) legal proof (Hutson 2007: 25). In Medieval law, evidence in criminal law was based on torture: even voluntary confessions had to be confirmed by torture because authorities believed that only physical humiliation produced reliable truth. But the observation, reappearing during the (early) Renaissance, that the classics were interested in the specifics of forensic rhetoric had put this assumption under pressure. The facts underlying a trial had to be represented in a different way, in order to know them and, more crucially, to qualify them within a framework of authoritative rules, within a legal framework. Physical extraction – in its most literal sense – of the truth by testing the resilience of the tortured was warranted by the infinite mercy of God. But humanist scholars, apart from their moral repulsion from deliberate affliction of pain, wanted to discover the legally relevant truth represented in court, through mimetic devices. The theatre, says Enders, provided the literal stage to make this transition from actual pain to mimesis (Enders 1999, 156-157). And this mimesis, in the form of theatrical narrative, becomes the essence of inventio. Several ‘mystery plays’ of the late Middle Ages had already tried to represent, albeit more in an allegorical than in a mimetic way, the theme of ‘justice and mercy’, which can be seen as the final objective of the improved inventio of sixteenth-century forensic rhetoric. In plays about the repentance of the biblical Mary Magdalene, for example, the mercy of Christ – and the confirmation of his supreme sovereignty – is shown as an exemplum of the ‘new law’, the merciful law, overruling the ‘old law’, the Mosaic law of implacable revenge (Cox 1989: 162-63).

[8] It is clear that torture, as a theologically sound device to find forensic truth, raised rational doubts, and these doubts contributed to a profound discursive shift in jurisprudence and thus in the representation of violence in early modern Europe and in England in particular. However, historical contingencies also played their part. The Reformation in England caused radical transformations in the administration of law, both in its institutions and in its application. One decisive example of this shift was the changed rationale of punishment itself. The rejection of purgatory by the reformed Church of England obliged judges and juries to change their dogmatic legal attitudes, since the provisional character of even capital punishment disappeared. A human judgment was conclusive now; it became impossible to postpone a final judgment, based upon divine providence, until the afterlife. Without purgatory, human authorities had to assess the exact relationship between guilt and punishment, intentionality had to be judged, and the perspective of the final reckoning had to be evaluated by (human) peers. In other words, legal procedures were radically secularised, and all remnants of divine intervention, such as the holiness of oaths or the forensic value of ordeals gradually disappeared (Hutson 2007: 268-75). On an institutional level, concerning the division of competence between common law jurisdiction and ecclesiastical courts, the Reformation had even more far-reaching consequences. Theological disputes were transferred to debates over the division of legal competences, such as family law, property law and penal law. In most cases this resulted in a secularisation of law, in a generalisation of trial by lay jurors, and in a new balance, mainly in private law, between common law – based on custom, parliamentary statute, and the case law of the King’s Bench – and equity – based on the case law of the (independent) Court of Chancery (Burrows 2002). To put it in general terms: jurisdiction could not rely any longer on a divine judgment, in the afterlife – not because it would not be valid any longer, but because it had become ‘unknowable’, by lack of an authoritative theological instance. The vicar of Christ, the Pope, had vanished from the scene.

[9] As opposed to the centralizing tendencies on the continent, especially in France, early modern England seemed to refuse a centripetal dynamic of jurisdiction grounded in a unified sovereignty as embodied in kingship. English society developed a relatively mild system of ‘participatory justice’ at grassroots level, notwithstanding the theoretical strictness of common law visible in an extensive variety of capital crimes and modes of capital punishment. This choice was also inspired by loss of confidence in the ecclesiastical jurisdiction. Hutson argues that Foucault’s thesis about the theatricalized distance between monarch and subjects, embodied in the infamous ‘spectacle of the scaffold’ (Foucault 1975: 36-72), has to be adapted here to a different, less ‘Catholic’ dynamic in England. The English judicial system, probably mirroring the fragmentation of Protestant communities, congregations and denominations, preserved its decentralised and ‘multipolar’ character (Higgins 2012: 274). Bernadette Meyler, however, nuances Hutson’s account of a ‘francocentric’ Foucault (Meyler 2019: 55-57). She mentions Foucault’s comment on the writings of Sir Edward Coke, who served as James I’s Attorney-General and member of the Privy Council, but was openly critical of the King’s absolutist self-image. Foucault subtly demonstrates how the (continental) ‘natural right’ idea of a modest king, not deified, not absolutist, and counterbalanced by his people, is historically constructed by Coke. The fragmented character of English law might then be in line with Coke’s (anti-French) apology for a more egalitarian legal and political regime, as it was supposed to have existed before the Norman conquest of 1066 (Foucault 1997: 91-92). Moreover, Meyler says, Coke’s construction of a pre-Norman genealogy of ‘common law’ was intended to curtail James I’s desire to occupy the judicial arena. This trope, Meyler notes, appears in Measure for Measure (Meyler 2019: 63).

[10] On the other hand, Hutson rightly argues that the subsequent transfer of this spectacle from the public scaffold to new genres of dramatic theatre (revenge tragedy, city tragedy, romance/comedy, and even some court masques), is not, or not in the first place, a visual mimesis, as Foucault suggests, but primarily an imitation of forensic rhetoric, in which plots are constructed as inventio and dispositio, and the audience is put in the position of lay judges. Many spectators did indeed participate in popular jurisdiction, in that jurisdictional quality. Early modern playwrights were often well trained in jurisprudence or even professionally active in the judiciary, so they were aware of the audience’s familiarity with forensic proceedings and that knowledge influenced their narrative constructions. This consciousness had a clear impact on (the complexity of) their dramaturgy (Hutson 2007: 68-69), and Measure for Measure demonstrates exactly this. The use of forensic rhetoric in Elizabethan comedy was also embedded in plot structures and figures of speech borrowed from Roman classical comedians, such as Plautus and Terentius (Hutson 2007: 213). Intellectually, this was an excellent exercise for playwrights, since the sheer improbability of most comic plots had to be resolved by ingenious rhetorical devices. These classical examples thus functioned as a framework for the discursive working through of profound societal changes. They were also helpful to overcome an epistemological crisis deepened by the urgent need to redefine the connection between secular and spiritual authorities, almost from scratch.

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Improbable plot and ambiguous closure

[11] James’s succession, in 1603, to Queen Elizabeth I, who had consolidated the Reformation in the Church of England, happened at a crucial moment during a far-reaching societal transformation. Christened a Catholic, James converted easily to Protestantism, but his political position remained unstable, as a number of conspiracies, such as the Bye and Main Plots (1603) and the Gunpowder plot (1605) show (Croft 2003: 51, 64). With a view to his ascension to the English throne, in 1599, James reprinted his essay Basilikon Doron, a warning to his infant son Henry about the dangers threatening the divine right of kings. He advises him to seek a middle ground between the strictness of authority and well-tempered mercy: ‘for justice (by the law) giueth euery man his owne : and equitie in things arbitrall, giueth every one that which is meetest for him’ (Craigie 1944: 166). In 1604 Shakespeare writes and produces Measure for Measure, with the new King as one of the spectators. A hybrid comedy about justice and mercy, and about the societal and political system that creates a provisional balance between them, the play might be qualified as an experiment in forensic rhetoric. And the outcome, in the disenchanting final scene, is a major display of discursive violence.

[12] The last act shows the release of the sinner Claudio, the exposure of Angelo as a sexual predator, and the forgiveness of his victim, Isabella. The multiple marriages cross many lines of class and morality, bringing together citizens and social misfits, puritans and libertines, true lovers and forced partnerships. But this final scene deviates nevertheless from any conventional closure in Jacobean comedy, not in its anecdotal improbabilities (four simultaneous marriages, recovered virginity, a general atmosphere of reconciliation and (apparently) unqualified joy) – similar improbabilities occur in As You Like It and in A Midsummer Night’s Dream – but in its utter lack of enjoyment or conviviality (Higgins 2012: 290).

[13] The concluding words of the Duke are symptomatic in their ambiguity: ‘So bring us to our palace, where we’ll show | What’s yet behind that’s meet you all should know’ (5.1.535-36). ‘Behind’ has, in Shakespearean usage, two opposite temporal meanings: to come, thus pointing to the future, or to leave, referring to a definite past. This single ambiguous word is reinforced by another use of ‘behind’, ten lines earlier, when the Duke says to Escalus, his loyal counsel who tried to tame Angelo’s rigour: ‘Thanks, good friend Escalus, for thy much goodness | There’s more behind that is more gratulate’ (5.1.525-26). At least three interpretations are possible here. When ‘behind’ points to the future, it remains highly uncertain whether this will be a hopeful future, where mercy and equity – not in the English legal sense but as principled moral justice – are able to reform and redeem a society with all too rigorous rules, or whether this future means the instalment of a different, ‘biopolitical’ regime of truth based upon uncontrolled access to information (‘that’s meet you all should know’). But if ‘behind’ refers to a past – a recent past, under Angelo’s regime – then the Duke’s congratulation of Escalus could suggest some regret about the failure to repress sexual license or, more generally, an awareness of the ‘epistemological crisis’ in the legal qualification of certain social practices (Funk 2012). These last two interpretations could reveal the ambiguity of the Duke’s disguise to make an almost ‘totalitarian’ point. If the ruler can watch his subjects incognito, control over behaviour is limitless. The Duke’s position is comparable to the performance of the king in Henry V, who, likewise incognito, discusses with a simple soldier the meaning(lessness) of war, thus exposing the private’s candour to his royal mercy. The inherent violence of this position is quite obvious (Cohen 1993: 68).

[14] The legal point crucial to Shakespeare’s plot is the value of betrothal, of the promise to marry before the actual wedding rites take place. As over 30 % of the brides in England around 1600 were pregnant on their wedding day (Hayne 1993: 5), it is clear that Claudio and Juliet made no exceptional case by English standards. Although this was a capital crime, ecclesiastical courts judged leniently, and simply asked for a swift wedding to formalize the family. Shakespeare, however, constructs different narratives about these betrothals. Measure for Measure tells one story (actually more than one), in contrast to the betrothal in Romeo and Juliet, for instance, where the audience witnesses the love affair with its own eyes (Hayne 1993: 4-5). Dubious testimonies confirm betrothals, or are simply invented, such as Lucio’s, and the normative tightening of common social practice – just as premarital sex was common, so was prostitution, which was even tolerated by the Church from the late Middle Ages (Mazo Karras 1989: 403) – thus points to more theoretical problems of jurisdiction and justice. Two of these issues require more substantial reflection: the question of undecidability, or the inherent impossibility of reaching a ‘just’ decision; and the political meaning of mercy, taking into account the aforementioned ‘short circuit’ in the validation of sovereign authority (Pieters 2003, 202), embodied in the act of pardoning. This analysis might reveal the structurally violent nature of the law in early modernity (or, for that matter, at any time), and the reasons a discursive representation is preferred over horrid spectacle, at least in this case.

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Undecidability

[15] When the Provost in Measure for Measure says to the hangman Abhorson – a fine Shakespearean compounding of ‘abhor’ and ‘whoreson’ – that the whoremonger and petty criminal Pompey will help him, the executioner protests: ‘A bawd, sir? Fie upon him, he will discredit our mystery’ (4.2.26). While in early modern English ‘mystery’ also has a less ‘mystic’ connotation – it can also mean ‘skilled trade’, it refers too to a property of the law that escapes mere rationality. Pompey’s reacts ad rem:

Painting, sir, I have heard say, is a mystery; and
your whores sir, being members of my occupation,
using painting, do prove my occupation a mystery.
But what mystery there should be in hanging, if I
should be hanged, I cannot imagine. (4.2.34-38)

Pompey, one imagines, considers the commodification of lust, the ‘business model’ of prostitution, a mystery as big – and as doubtful – as the execution of prisoners. The painted faces of his whores contribute to the erotic theatricality they should embody, just as the public scaffold should create the certainty that justice is not only done, but also seen to have been done. But for the hangman, who is acting here as the popular representative of a legal system, this mystery might go deeper. In Force de Loi, Jacques Derrida compares the ideal judge with a calculator, but in the real world he is never such a mechanical device and he never will be (or should be). Legal language guarantees, of course, a certain iterability in this discourse – similar causes are adjudicated according to similar rules, but between rule, qualification and adjudication, between abstract norms and actual facticity, unbridgeable gaps appear all the time, making every decision unique. A decision in an individual case can never guarantee justice, either in particular or in general, because the ‘spectre of undecidability’ haunts the action of judges and jurors: they cannot not decide once and for all, the sense of contingency is overwhelming. Every single judgment oscillates between this paralysing ‘spectrality’ and the prohibition of denial of justice or non liquet, which has a long legal history (Rabello 1974). Justice and legality cannot coincide, and their detachment should remain a mystery (Derrida 1994: 51-52), as a promise of justice, eventually (Laclau 1995: 90). Angelo, in his jurisdictional capacity, prefers to deny these gaps in the most direct way, after Isabella’s logically remarkable supplication and rhetorically surprising inventio, as she gives a strong example of the constructivist argument:

Isabella: I have a brother is condemn’d to die;
I do beseech you, let it be his fault,
And not my brother.
[…]
Angelo: Condemn the fault, and not the actor of it?
Why, every fault’s condemn’d ere it be done:
Mine were the very cipher of a function
To fine the faults, whose fine stands in record,
And let go by the actor. (2.2.34-41)

[16] ‘Every fault’s condemn’d ere it be done’: this phrase captures the quintessence of Angelo’s concept of law, which comes down to a pleonasm. The law is the law is the law, to echo Gertrude Stein, meaning here that the contingencies of a social practice – legally qualified as sexual license – are annihilated in favour of a pure reference to the rule, as if this social practice is itself intrinsically motivated by its (non-)conformity to the rule. The letter of the law functions as a criterion of truth, and legal discourse is founded on an autonomous regime of truth: the law knows what ‘really’ happens, and the truth-value of this knowledge is beyond dispute (Defoort 1994: 54-55). In a certain sense, this idea of the law also has a theological undertone: every sin, every trespassing of the law is already known by God, and human law is but a mere recognition of divine justice (Meyler 2019: 49). But to put it again in more secular terms, the unconditional substantive rule – the prohibition of premarital intercourse, in this case – resists a (pragmatic) tendency to be embedded in conditional rules of application (Derrida 1994: 81-82). Derrida refers here to Walter Benjamin, who distinguished between two forms of legal violence, ‘law making violence’ (rechtsetzende Gewalt) and ‘law preserving violence’ (rechtserhaltende Gewalt) (Benjamin 1965: 43-46). Angelo demonstrates throughout the play how the merger of the two forms of legal violence leads to a blatant contradiction. Or worse: for Benjamin the lack of distinction comes down to the denial of the rule of law itself (Benjamin 1965: 45). If a rule based upon so-called natural law or natural morality is treated as a positivistic proscription – which means that its denotative meaning (‘the letter of the law’) is absolute and that no connotation or contextualisation of the rule is accepted – then the ‘foundational violence’ of that so-called natural rule erupts in all its enormity. The last act of Measure for Measure appears a futile effort to contain that violence through a typically comic device: a plurality of marriages, most of them likely to be unhappy, as the lack of enjoyment announces.

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The performance of mercy

[17] Apart from satisfying the dramaturgical necessity of solving the Duke’s intrigues, the strange dénouement in the last act has a remarkable mimetic significance. As a performance text, it imitates and, at the same time, displaces an important event at the beginning of James I’s reign: the public mercy shown to certain well-known courtiers accused of involvement in a conspiracy against the king. But as a staging of public confessions, the improvised courtroom in ‘a public space near the city’, as the stage direction says, refers to the same jurisprudential shift, with its quest for redefined roles for secular and ecclesiastical jurisdiction, as mentioned above. In late 1603, four lords, including the notorious political maverick Sir Walter Raleigh, were arrested for treason in the so-called Main and Bye plots. Although evidence was scarce, they were condemned to death by beheading. The process turned the despised Raleigh into a popular hero, due to his struggle with Attorney-General Sir Edward Coke, known as an unscrupulous prosecutor. When the outcome of the process became clear, James I mounted his own spectacle, as actor, director and playwright (Bernthal 1992: 250). He appeared to be unmoved by interventions on Raleigh’s behalf, by the Privy Council and by Raleigh’s wife, although he had already decided for himself to pardon three lords – but not Raleigh. He even signed the death warrants and sent them to the sheriff, but at the hour of execution sent a messenger to delay the beheading, because the condemned were ‘ill prepared’. He changed the order of executions, thus making one of the lords believe that his fellows were already killed. James I finally granted the three lords pardon, and, most theatrically, he delayed Raleigh’s execution indefinitely, raising the possibility of a full pardon (Bernthal 1992: 252-53). For the contemporary audience, the similarities between Duke Vincentio’s intervention in Measure for Measure – he organizes some kind of mock trial – and the behaviour of King James I, a few months earlier, must have been self-evident. But the analogy goes further. During this scene, the delicate balance between strict legality and generous fairness (equity) is completely overthrown by a demonstration of power by the Duke. To achieve his goals, that is, to restore his sovereignty – or more precisely, sovereignty as he conceives it, – he has to use the law in an almost ridiculous way, and he does so by using this typical device of comedy: multiple marriages. It is hardly believable that such a performance would be convincing for a learned audience, most of them with training in rhetoric, most of them actual witnesses to the anticlimax on the scaffold involving four lords narrowly escaping beheading.

[18] Shakespeare situates Measure for Measure in a vaguely Catholic setting, in an imaginary Vienna where the presiding figure is a Duke disguised as a friar. This allows him to cast doubt on the true intentions of all the characters, but particularly the Duke, who eventually uses his frock to gain access to the chaste lady, Isabella. His figure is hardly compatible with justice and mercy (Burks 2003: 75-77). But while his tricks are hardly convincing from a moralistic point of view, something else happens. Renaissance drama differs from the mystery plays most importantly in its mimesis of individual characters, rather than allegorical figures. In the longue durée, this points in the direction of a growing interest in individualisation, psychology and gradual embourgeoisement of the gentry. And it also marks the shift, as mentioned by Enders, from a legal focus on actual physical pain – as a device that provides forensic evidence – to mimesis or forensic narrativity (Enders 1999: 156-57). But here the reference to the Raleigh trial allows Shakespeare to turn individual confessions – relatively weak legal evidence, but an occasion for rhetorical brilliance or evidentia – into (the imitation of) a publicly relevant event, with ritualistic connotation and even magnificence. During the rearrangement of secular and ecclesiastical jurisdictions with the Reformation, final verdicts – high treason to begin with, but spreading over local jurisdictions – were often accompanied by public confessions, the ‘last dying speeches’, which became almost autobiographies (Sharpe 1985: 150-51). Angelo confesses at the end of the final scene, in a concise fashion, but the whole last act – or even the whole play – could be seen as a ‘last dying speech’ of perverted authority, a confession of political and more specifically forensic impotence. Or, as Steven Mullaney suggests, Measure for Measure, seen as a comprehensive performance, establishes and criticizes simultaneously the order of things, by its imitation of the provisionally suspended unhappy outcomes for several characters – Angelo, the embodiment of ‘naturalistic positivism’ in the law, in the first place (Mullaney 1988: 108). But what goal does this performance, staged by the Duke, as he unveils himself, actually serve? In a short, explicatory scene with Friar Thomas, Duke Vincentio offers the reasons for his strange scheme involving authority and the law. He confesses that he is torn between two ideas of law enforcement, and he uses very different metaphors: the cruelty of the lion, the predator, and the carefulness of the family man:

We have strict statues and most biting laws,
The needful bits and curbs to headstrong jades,
Which for this fourteen years we have let slip:
Even like an o’er-grown lion in a cave
That goes not out to prey. Now, as fond fathers,
Having bound up to the threatening twigs of birch,
Only to stick it in their children’s sight
For terror, not to use, in time the rod
Becomes more mock’d than fear’d: so our decrees
Dead to infliction, to themselves are dead.    (1.3.19-29)

[19] While the lion might refer to Foucault’s paradigm of souveraineté – violent power for its own sake – or Machiavellian self-preservation, the ‘fond fathers’ are pedagogues: for them violence is restrained, a mere deterrent, and as rulers they belong to the paradigm of gouvernementalité (Pieters 2003: 202-03). After the ‘experiment’ with Angelo, Duke Vincentio might have realised the untenability of his mixed metaphor of a biting lion and a fond father, but he adds one last gratuitous demonstration of unchecked sovereignty, in letting Isabella believe her brother has actually been executed, before making a ‘governmental turn’ by arranging the marriages:

Isabella:     O, give me pardon,
That I, your vassal, have employ’d and pain’d
Your unknown sovereignty.

Duke:           You are pardon’d, Isabel,
And now, dear maid, be you as free to us.
Your brother’s death, I know, sits at your heart:
And you may marvel why I obscur’d myself,
Laboring to save his life, and would not rather
Make rash remonstrance of my hidden power
Than let him so be lost.   (5.1.383-91)

The shift of the Duke from a ‘sovereign’ to a ‘governor’ might perhaps not be too convincing, at first sight, but the multiple marriages reveal more than just a comedy cliché. Duke Vincentio reclaims his authority by creating – in the microcosm of the play – a ‘conjugal society’. This is the term John Locke uses, at the end of the seventeenth century, to define marriage and to criticize the analogy between a divine right of kings and marital patriarchy on biblical grounds (Lupton 2014: 147).[2] But the method he has used to enforce the ‘most biting laws’ of Vienna has unleashed unexpected energies. Julia Reinhard Lupton compares this outcome to a tragedy that, in a completely different historical context, also interrogates the foundations of the political community: ‘[T]he marriage rituals that had solemnised Antigone’s symbolic reintegration into the city, but only through death, will here take centre stage in the play’s final act, with its invitation to four weddings and no funeral. In both plays, defiance as wilful de-affiliation is the cut or interval around which a new modality of the political can emerge’ (Lupton 2014: 143).[3]

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Conclusion: rhetoric as symbolic violence

[20] Measure for Measure eventually shows the disintegration of authority in a society that in its own structures deals ambiguously with the threat of disorder, and the concluding restoration of the Duke as supreme ruler and merciful judge translates this development into a performative discourse (Dollymore 1994: 75-76). His strategy of disguises and tricks does not result in a firmer establishment or justification of authority. It results in an exposing of discursive violence, and it does so thanks to a complex inventio and, in the final act, dispositio. During the Duke’s ‘absence’, Isabella, the chastest character of all, devises with the Duke an elaborate rhetorical scheme, by feigning her surrender to Angelo’s lust: a deceitful plan, only to be matched by the hypocrisy and mendacity of Angelo himself (Skinner 2014: 89-91). From Angelo and Isabella’s first confrontation, she perceives the authority of the deputy as a harsh reality. Indeed, when Isabella threatens to reveal his indecent proposal to others, his reply is simple:

Who will believe thee, Isabel?
My unsoil’d name, th’austereness of my life,
My vouch against you, and my place i’th’state
Will so you accusation overweigh,
That you shall stifle in your own report,
And smell of calumny. (2.4.153-58)

Isabella’s reaction (‘To whom should I complain? Did I tell this | Who would believe me?’ (2.4.170-71)) is truly desperate at this point, but in the next act, immediately after this outcry, the scheme to confront Angelo with his paradoxical lusts – sexual perversion and legalist authoritarianism – is set up by the Duke.[4] The rejection, by a disgusted Isabella, of Claudio’s suggestion that she should give in to Angelo’s blackmail, can be seen as a misleading interruption of a narrative inventio, of an ingenious construction of evidence. In fact, the plot blurs the Aristotelian distinction between ‘inartificial proof’ – bare facts – and ‘artificial proof’ – persuasion by speech (see Aristotle 1926: I.2.2). The facts take place, Angelo sleeps with Mariana, thus confirming the betrothal, but a shrewd rhetorical bypass leads this inartificial proof to artificial (rhetorical) evidence: Angelo thinks he has slept with Isabella, and she uses his ignorance to accuse him before the Duke, with all the pathos – a form of artificial proof, says Aristotle (Aristotle 1926: I.2.5) – needed (Skinner 2014: 94-95):

O worthy Prince, dishonour not your eye
By throwing it on any other object,
Till you have heard me in my true complaint,
And given me justice! Justice! Justice! Justice! (5.1.23-26)

The Duke, who set up the trick in his disguise, can now openly play his role as the final judge. And the informed audience is witnessing this forensic-rhetorical construction from within: the transition from torture, as a device warranting factual (inartificial) proof through physical violence, to carefully staged ruse, warranting persuasive (artificial) proof through indefensible delusion – or symbolic violence.

[21] In 1546, the poet Anne Askew was tortured and burned for heresy. According to Calvinist historiography, she was the first English woman to ask for a divorce on explicit religious grounds (d’Aubigné 1879: 274-83) and, in a certain way, she symbolised the fear of transgression that went along with the Reformation, but the event had its antecedents in centuries of witch-burning. As the submission of women to men was first and foremost a patrimonial relation – woman as a possession of man – any assertiveness on her part threatened the ‘natural’ order, especially when it was vocal: ‘Silence, the closed mouth, is made a sign of chastity. And silence and chastity are, in turn, homologous to woman’s enclosure within the house’ (Stallybrass 1986: 127). The nuclear family – Anne Askew had left her husband – became more and more the ideal of a social system in general. This pattern is recognisable and will indeed be confirmed, philosophically, by Locke’s line of thought about the ‘conjugal society’ (Locke 1993: 153-63). Consequently, sexual deviance was a threat to this idealised family and had to be disciplined. Individual acts of sexual license could release divine vengeance and result in the destruction of the societal order, which also explains why sexual and marital discipline were repressed so severely with the increasing influence of Puritanism. Sexuality as such was not dangerous, but the societal instability caused by deviance was an obvious threat. The uncanny sensitivity about the presumed risks of sexual deviance in this society – consistent with the household culture of the gentry – is translated, in Shakespeare’s time, into a different legal regime and into a gradual removal of legal violence from the public domain, but as an actual threat it continues to exist. Angelo’s mistake might be that he doesn’t understand this shift from providential authority to biopolitics, or, in the words of Richard Wilson, ‘political techniques [swinging] away from the ritual of death towards the administration of life’ (Wilson 1993: 122). But the Duke figures it out, and his extraordinary masquerade illustrates the ‘theatrical shift’ – a combination of shrewd rhetoric, visual sophistication and situational surprises – towards a regime of ‘soft’ legal violence, neatly covering up the foundational impasse of his sovereignty, which was too openly illustrated in Angelo’s behaviour.

[22] So, with three out of four marriages being enforced, the Duke’s concluding construction of new households might mirror a (rather uneasy) model for an authoritarian state, based upon surveillance of its citizens. The Duke acts like a spy, trying to inform himself about the workings of deviance, hardly attempting, as a prince, to reconcile social and moral differences. The hypocritical severity of Angelo is not repressed or rejected; it is treated as a reactionary fantasy, an interpretation which, in a milder but more effectively disciplined form, is confirmed by the Duke. His temporary abstinence from the administration of the law results in a society that pretends to be no longer doubtful about its truth regime and the sources of its sovereignty. ‘What’s yet behind that’s meet you all should know’, as the Duke concludes, not exactly knowing the nature of justice in his regime. At least for the time being, adds Shakespeare, silently.

Vrije Universiteit Brussel (VUB) & RITCS School of Arts

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NOTES

[1] Meyler refers to Jacques Derrida’s analysis of the theatrical character of pardoning, especially after collective, societal trauma (Shoah, Apartheid), as having ‘the traits of a grand convulsion – dare we say a frenetic compulsion?’ (Derrida 2000: 105)[back to text]

[2] Lupton refers to John Locke’s anti-patriarchal position regarding the relationship between husband and wife (Locke 1993: 153-60).[back to text]

[3] The ‘de-affiliation’ Lupton refers to is Isabella’s sustained refusal to give up her chastity for the life of her brother, exactly the opposite of Antigone’s decision to die for her deceased brother Polynices. But Antigone has also ‘de-affiliated’ herself from the rest of her family.[back to text]

[4] A paradox indeed, and not a contradiction: Angelo’s duplicity is the kind of ‘perversion’ Jacques Lacan hints at in his essay ‘Kant avec Sade’, in which he analyses the difficulties Immanuel Kant has in reconciling a ‘pleasure principle’ with an ethical system (and attitude) based upon pure reason (Lacan 1966: 765-90).[back to text]

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