Law, Discretion, Equity in The Merchant of Venice and Measure for Measure  (2005)

Carpi, Daniela
Law, Discretion, Equity in The Merchant of Venice and Measure for Measure
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Articolo in Rivista
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Articolo su rivista
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Cardozo Law Review
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Yeshiva University
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The philosophical term “equity” belongs to an ancient tradition which dates back to Aristotle’s concept of “epieikeia” and to the Roman “aequitas”, and which basically defines the rectification of a law which is intrinsically defective because of its vast generality. Therefore it entails a creative element in the development of the law. “Justice” must make use of its corrective “equity” in order to achieve the right and the good: this is to say, in other words, that equity stands for ideal justice. So Shylock’s contract in The Merchant of Venice requires a court of equity for its application because in sealing that contract Antonio has endangered his own life. No contract is applicable if one of the contracting parties has inadvertently signed his own death warrant. This is to say that Portia can at first be seen as a judge of the Court of Equity. However, in this case we find ourselves in a liminal zone between an Anglo-Saxon concept of Equity and a Roman one, because here a strong emphasis is placed on the concept of mercy. The same debate beteen law and equity comes to the forefront in Measure for Measure. The main topic of the play is introduced at the very beginning by the Duke himself who asserts that he wants to test “the terms for common justice” (I,i,10) and “to enforce and qualify the laws/ as to your soul seems good” (I,i,65). The contraposition between justice and discretion is therefore the starting point of the play. The whole plot plays on the terms “mercy”, “pity”, “law”, “discretion”, as if to say that justice is impossible without recourse to “humanitas”. Once more we are facing an epochal change: the Duke describes a period when, though having strict laws and statutes, the state has undergone a sort of loss of “decorum” and “decrees” have been “dead to infliction”. On one hand we have legal laxity, on the other strict rigour. Justice should be in the middle, and this is where the woman’s function arises. Isabella stands for a return to morality, in the sense of the humane application of the law, a softened attitude that applies the law by mitigating its terror. If in the Duke’s and Angelo’s case we experience an absence of justice, in the former because of his permissiveness and in the latter because of an excess of application, Isabella demonstrates that morality must be an integral element of the law and of judicial interpretation. It must not be devoid of humanitas and philanthropia, in Seneca’s terms.
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Deposited On:
July 17, 2007
Last Modified:
November 15, 2022
Bibliographic citation:
Carpi, Daniela, Law, Discretion, Equity in The Merchant of Venice and Measure for Measure «Cardozo Law Review» , vol. 26 , n. 62005pp. 2317-2329

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