LAWRENCE — If law students were assigned to look up the definition of the “rule of law,” they might not think to start with Shakespeare. But according to a University of Kansas legal scholar, the Bard is as good of a source as any to understand a host of legal issues, both past and present.
Raj Bhala, University Distinguished Professor of Law, recently concluded a sabbatical in the United Kingdom in which he lived, worked, studied and saw performances in William Shakespeare’s homeland. The results were an article about the rule of law in “Measure for Measure,” pending work on human rights in “The Tempest,” new material for his courses and enhancements to the Kansas Law and Literature webpage.
Bhala held visiting fellowships in law, literature and Shakespeare at the universities of Warwick, Glasgow and Oxford (Trinity College), and he presented his article at each venue. The paper, “Applying Definitions of the ‘Rule of Law’ to Shakespeare’s Measure for Measure,” is forthcoming in the peer-reviewed University of St. Thomas Journal of Law and Public Policy.
“My goal was to learn as much as I could about Shakespeare’s works and the law during his time, the early modern period, from some of the most eminent scholars in the world,” Bhala said of his research in England and Scotland. “They were very generous with their time and treasures, ensuring a wonderfully productive — indeed, exhilarating — sabbatical.”
He said he decided to examine what the “rule of law” means, which is an enduring legal question relevant to every jurisdiction and every citizen, and apply the definition of the term to characters in “Measure for Measure,” which he described as Shakespeare’s “most legalistic play.”
First published in 1604, the play examines legal issues secular and sacred, how they play off one another and how they evoke legal and moral problems.
“What do we mean by ‘rule of law’? We use it imprecisely. It didn’t really enter the lexicon until the 19th century and the work of a British legal scholar named A.V. Dicey,” Bhala said. “It means a lot more than just ‘everyone is subject to the law,’ a common but vague and incomplete understanding of the term.”
Throughout the 100-page law review article, Bhala examined varying definitions of the term and ideas about its meaning prior to and after Dicey.
In analyzing ideas from the Magna Carta and other historical writings to modern sources, including U.S. Supreme Court Justice Anthony Kennedy, Bhala looked at the debate over whether societies are (and should be) ruled by law or by men who make law.
Then, Bhala applied metrics for the rule of law gleaned from these sources to the major and minor characters in “Measure for Measure.”
“How do the acts and omissions of the characters illustrate various approaches to those centuries-old arguments about what the ‘rule of law’ is and is not?” he said.
He concluded the paper by revisiting the universality and timelessness of Shakespeare’s work as well as its relevance to the legal profession and to law education.
British and American scholars take different approaches to legal education and what sources like Shakespeare can lend, according to Bhala. During his fellowship, he said he appreciated how both British legal and literary scholars were steeped in British legal history and what the law in previous centuries contributed to current understandings. Their American counterparts who write about Shakespeare and the law typically do not address British or other national legal histories and seldom examine U.S. legal history; rather, they tend to focus on what is relevant now, he said.
“That’s fair enough, given the difference in academic training in the U.K. versus U.S.,” Bhala said.
Yet, he called for an inclusive “both-and,” not exclusive “either-or,” approach. Shakespeare provides a new appreciation for how today’s questions are not new and shows us that what was previously thought on law-related issues is instructive today, Bhala said.
For example, students quickly recognize the character of the Duke in “Measure for Measure” ruling through unilateral proclamations and what that says about rule by fiat today, executive orders and questions of political power, Bhala said.
Overall, what “rule of law” means, and the many threats to it, are international. And they are vital to both practicing and future lawyers, he said.
“Rule of law is a concept relevant to all lawyers everywhere in the world,” Bhala said. “Yet it is a concept that is not well defined in our legal classrooms. Because of a lack of definition, it is a term that can be abused. No less than the International Bar Association has had ‘the threat to the rule of law’ as a theme for its last several conferences.”
Shakespeare and his examinations of law have not only traveled across centuries but also travel back across the Atlantic. Bhala has taught law and literature classes for several years and will continue in the fall at KU.
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