Mercy, Equity and the Letter of the Law
Chapter Nine
Syllabus topic 1.1, "The Merchant of Venice - William Shakespeare"
Pages 47 to 51 of 406
In one line
Portia asks Shylock to be merciful, he asks what compels him, and the true answer is nothing, so the case is not decided by mercy but by reading his own document more strictly than he read it himself.
In the wording a student can write in an examination: the trial scene sets the claim of justice, that is, the enforcement of a valid agreement according to its terms, against the claim of mercy, which is voluntary and cannot be compelled, and resolves the conflict not by mercy but by a strict construction of the bond and by the operation of a penal statute.
The words a beginner needs first
Justice, in this scene, means giving each party what the law says they are entitled to. Shylock uses the word about twenty times and always in this sense.
Mercy means choosing not to enforce a right you actually have. It is not the same as fairness, and it is not a defence. Mercy is what a person with power gives up.
Equity is a body of rules, developed in England in the Court of Chancery, which softened the harshness of the ordinary common law in particular cases. Where the common law said the bond must be enforced, equity could restrain a party from enforcing it unconscionably. The word also has an ordinary meaning, fairness, and both meanings matter here.
Construction means the process by which a court decides what a document means. Strict construction means holding a document to its exact words and refusing to add anything to it.
Precedent means a decided case that later courts follow.
The argument as the scene actually runs it
Set out the three positions in the room, because an essay that separates them will beat one that does not.
Shylock's position: pure legality. He has a valid bond. He asks for the law and nothing else. His clearest statement is four words: "I stand here for law." He also makes the argument nobody answers, that Venice enforces property rights in purchased human beings and cannot now tell him that a thing dearly bought is not his.
The Duke's position: law with an exception in this case. He asks Shylock to relent, and describes him as void of any dram of mercy. He can beg but not order, and in Act III Scene iii Antonio has already explained why: Venice lives on foreign trade, and a Duke who denies the course of law to an unpopular creditor destroys the confidence that brings merchants to the city.
Bassanio's position: bend the rule for a good outcome. His words are exact and are the best short statement of the temptation any judge faces.
Mercy, Equity and the Letter of the Law
Wrest once the law to your authority.
To do a great right, do a little wrong.
Portia's answer, and it is the lawyer's answer. She refuses.
It must not be, there is no power in Venice
Can alter a decree established;
'Twill be recorded for a precedent,
And many an error by the same example
Will rush into the state.
That is the doctrine of precedent stated plainly: a rule bent once becomes a rule that can be bent again, by worse people in worse cases. A student who quotes this beside "the quality of mercy" has understood that Portia argues both sides of the question within thirty lines.
The mercy speech, read as an argument
Learn what the speech claims, in order, because "she says mercy is good" is not an answer.
- Mercy cannot be compelled. It "is not strain'd", that is, not forced. This concedes Shylock's point at once: there is no compulsion, and the speech never pretends otherwise.
- It benefits both sides. "It is twice blest, it blesseth him that gives and him that takes."
- It is the highest attribute of power. It becomes a monarch better than his crown, because a sceptre shows only the force of temporal power, while mercy is enthroned in the hearts of kings.
- It is divine. It is an attribute to God himself, and earthly power looks most like God's when mercy seasons justice.
- The religious conclusion. In the course of justice, none of us would see salvation. We pray for mercy, and that prayer teaches us to show mercy to others.
Why it fails, and this is the point examiners want. The argument is Christian at every step, and it is addressed to a Jew, in a court that has spent the scene calling him a dog and a cur, in a city that took his daughter and mocked him in the street. Its final step asks him to model himself on a salvation he does not believe in. Shylock answers in a line and a half: "My deeds upon my head! I crave the law, the penalty and forfeit of my bond." He is not refusing an argument he cannot meet; he is refusing an appeal that was never available to him.
A second reason it fails. Nobody in the scene offers him any mercy either. Ten minutes later the court takes his estate, his profession and his religion. The play puts the finest speech about mercy in English immediately before the least merciful judgment in English drama, and the arrangement cannot be accidental.
How the case is actually decided
Write this out whenever a question asks whether justice or mercy wins.
Neither. The case is decided by construction.
Mercy, Equity and the Letter of the Law
Portia upholds the bond, twice, in terms. She then reads it with a strictness Shylock had himself demanded. He refused a surgeon because a surgeon was "not in the bond". She takes him at that word: the bond gives flesh, and the word blood does not appear in it, so he may cut and may not bleed him. She adds that the pound must be exact to the estimation of a hair, because the bond says a pound.
Every one of those moves is the letter of the document, not its spirit and not fairness. So the outcome is not mercy defeating justice. It is one strict reading of a document defeating another, and the reading that wins is the one the court prefers.
Is the judgment good law? A fair answer to a common question
The case against it. A court that upholds a contract cannot then make performance impossible by a construction nobody intended. Both parties knew that cutting flesh involves blood; a term giving flesh must carry with it whatever is necessarily involved in taking it. Modern courts imply such terms as a matter of course. On this view Portia's argument is a debating trick.
The case for it. A penal clause that authorises maiming or killing is not a term any legal system should enforce at all, and a court faced with one may fairly resolve every ambiguity against the party seeking to enforce it. The strictness is a way of refusing an unconscionable claim without saying so.
What is undeniably wrong with it. The court decided the case for Antonio and then invited Gratiano's abuse, permitted a criminal charge to be produced against the winner of the argument, and allowed the successful defendant to impose a change of religion. Whatever the blood point is worth, that ending is not a court doing justice.
Where equity comes into it
English law of the period had two systems. The common law courts enforced bonds strictly. The Court of Chancery, applying equity, could relieve a party against a penalty, that is, against a term designed to punish rather than to compensate, and could stop a plaintiff who was insisting on his strict rights in an unconscionable way.
The most useful way to put this in an answer: Shylock's bond is exactly the kind of instrument equity existed to relieve against, and the play never mentions equity. Instead of a court saying "this term is a penalty and I will not enforce it", we get a court saying "this term means less than you thought". Shakespeare gives the audience the result equity would have produced by a route equity would not have used.
A student who wants one sentence on Indian law today should read the chapter on the bond as a contract, where the position under the Indian Contract Act is set out from the Act itself.
Mercy, Equity and the Letter of the Law
Distinctions worth a table
| Justice | Mercy | Equity | |
|---|---|---|---|
| What it does | Gives a party the right the law allows | Declines to enforce a right | Relieves against a right whose enforcement would be unconscionable |
| Can it be compelled? | Yes, by the court | No, the speech concedes this | Yes, it is a jurisdiction of a court |
| Who exercises it here | Portia, in giving judgment for Shylock | Nobody, to Shylock | Nobody. The play reaches an equitable result by strict construction |
What beginners get wrong
They say mercy defeats justice in this play. It does not. Shylock is defeated by the letter of his own bond and by a statute.
They quote the speech and stop. The speech is answered in the scene and loses. An answer must say why: it is a Christian argument addressed to a Jew in a hostile court, and it is followed by a judgment of no mercy at all.
They treat Portia as a champion of mercy. She refuses to bend the law, gives judgment for Shylock, and then imposes total forfeiture. She is a champion of strict construction.
They forget that Shylock offers no mercy either. He is asked three times, refuses each time, and calls down his deeds upon his own head. A balanced answer notices that the scene punishes him with exactly the quality he refused to show.
A worked answer
Question. "Does mercy defeat justice in The Merchant of Venice?"
The answer in one sentence, which should be the first sentence written. No: mercy is asked for, refused, and never shown, and the case is decided by a stricter reading of the bond than its own owner had given it.
The three moves that prove it. First, Portia's speech concedes in its opening line that mercy cannot be compelled, so Shylock's question "On what compulsion must I?" is never answered. Second, when Bassanio asks the court to wrest the law to its authority and do a little wrong to do a great right, Portia refuses, because the decision would be recorded for a precedent and many errors would follow the same example. Third, the judgment when it comes gives Shylock the pound of flesh and then removes the blood, the margin of a hair, the principal, and finally his whole estate.
The concession that lifts the mark. It is fair to say that the OUTCOME is what mercy would have produced, since an innocent man is saved and an unconscionable claim defeated. The point is that the play reaches it by construction, and that Act V then shows the same conflict settled the other way, by forgiveness, in a household rather than a court.
Mercy, Equity and the Letter of the Law
Quick revision
Mercy cannot be compelled, and the speech admits this in its first line.
Shylock's position: "I stand here for law." Bassanio's: do a little wrong to do a great right. Portia's answer: no, because it becomes a precedent.
The mercy speech argues in five steps and ends in a Christian appeal that a Jewish plaintiff has no reason to accept.
The case is decided by construction, not mercy: flesh but no blood, and exactly a pound.
Equity is the jurisdiction that relieved against penalties, and the play reaches an equitable outcome without using it.
Test yourself
1. What is Shylock's answer to the demand that he be merciful, and why is it strong? "On what compulsion must I?" It is strong because mercy is by definition voluntary, and Portia's own speech concedes it in her opening line: mercy is not strained.
2. Summarise the mercy speech in five steps. Mercy cannot be forced; it blesses both giver and receiver; it suits the powerful better than any symbol of power; it is an attribute of God; and since none of us would be saved by strict justice, our prayers for mercy oblige us to show it.
3. Why does Portia refuse to bend the law even to save an innocent man? Because a decision bending an established rule would be recorded as a precedent, and many errors would follow the same example into the state.
4. Does mercy decide the case? No. The bond is upheld and Shylock is defeated by a strict construction of it, first on blood and then on the exact weight, followed by the alien statute. No mercy is shown to him except the sparing of his life, which is granted only after everything else is taken.
5. What is equity, and what has it to do with this scene? Equity is the jurisdiction, historically exercised in Chancery, that relieved parties against penalties and unconscionable insistence on strict rights. Shylock's bond is precisely such a penalty. The play reaches the result equity would have reached, but by strict construction instead.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.