St Thomas More Letter 60: Measure for Measure

William Shakespeare’s Measure for Measure (1604) is a commentary on law and justice.  Measure for Measure is also a commentary on marriage, as marriage demands between two persons, the forgiveness, the mercy which Shakespeare urges also in the public sphere.

The unforgiving, unmerciful, Angelo will find forgiveness and mercy from Mariana in marriage.  For Shakespeare, forgiveness and mercy is a perennial aspect of human life inconsistent with the unforgiving, unmerciful rigidity typified by Angelo, the legalist.

Legalism (as opposed to the personalism which Shakespeare urges) characterised law in Tudor and Elizabethan England. Shakespeare in Measure for Measure urges a different way.

Problem Play or Comedy 
From one perspective, Measure for Measure, is a problem play, dealing with the role and limits of law.  From another perspective Measure for Measure is a comedy, rejoicing in the complexity and unpredictability of human beings.

The Story
Measure for Measure is set in Vienna.  The Duke delegates his authority to Angelo, a zealot for strict enforcement of the law, in particular, the long neglected law against sexual relations between a man and woman outside marriage.  Meanwhile, the Duke assumes the garb of a Franciscan friar.  The penalty on paper is death, albeit not enforced.

Angelo, as the Duke’s vice-regent, determines to apply the law.  So, Claudio is condemned to death, depriving Juliet (who is pregnant) of her spouse, and the unborn baby of a father.

As the provost asks incredulously:
All sects, all ages, smack of this vice, and he 
To die for’t?

The prudent Escalus, well versed in law, asks Angelo:
Whether you had not sometime in your life 
Erred in this point which now you censure him, 
And pulled the law upon you?

The disreputable Pompey asks:
Does your worship mean to geld and splay all the youth of the city?

Arguably Married 
There is some suggestion that, under the law at the time, Claudio and Juliet, although not having participated in a formal marriage ceremony, were legally married.  So, there is at least some doubt as to whether the law properly applied to Claudio and Juliet.  But there is no stopping Angelo from applying the law to the unfortunate Claudio.

Demolishing the Brothels 
As well as enforcing the law, Angelo demolishes the brothels of Vienna.  Angelo’s justification for his strict enforcement of the law is:
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.

Thus, the law must be strictly enforced so that it is a terror to those who would disregard it.

According to Angelo, it is the law, not Angelo, which condemns Claudio. But Claudio’s sister Isabella responds:
Go to your bosom 
… and ask your heart what it doth know
That’s like my brother’s fault.
If it confess 
A natural guiltiness, such as is his, 
Let it not sound a thought upon your tongue,
Against my brother’s life

Angelo a Scoundrel 
It turns out that Angelo has previously abandoned his fiancée, Mariana, because a promised dowry was not forthcoming.  Angelo wanted the money more than he wanted Mariana.  Angelo, for all his apparent virtue, is exposed as a scoundrel who has abandoned love, abandoned Mariana, for venal reasons, because of greed.

The Duke sums up Angelo:
Left her in her tears, and dried not one of them with his comfort; swallowed his vows whole, pretending in her discoveries of dishonour: in few, bestowed her on her own lamentation which she yet wears for his sake; and he, a marble to her tears, is washed with them, but relents not.

The wanton and fantastic Lucio sums up things accurately:
Yes, in good sooth, the vice is of a great kindred; it is well allied: but it is impossible to extirp it quite, friar, till eating and drinking be put down.  They say this Angelo was not made by man and woman after this downright way of creation:  is it true, think you?

Despite Angelo being a scoundrel, Mariana is, remarkably, still in love with him. Mariana sees in Angelo something we struggle to see.  Mariana begs for Angelo’s life!

This is a play about justice, but also forgiveness and mercy, both as regards the law, and also forgiveness between lovers, between spouses.

Angelo Seeks to Seduce Isabella 
Angelo tries to seduce Claudio’s sister, Isabella, who is a postulant in a Carmelite convent, falsely offering to free Claudio if only Isabella will sleep with him.  Isabella pleads with Angelo for forgiveness, for mercy for her brother, Claudio.  She pleads with Angelo to condemn the sin, but not the sinner:

No ceremony that to great ones longs, 
Not the king’s crown, nor the deputed sword, 
The marshal’s truncheon, nor the judge’s robe 
Become them with half so good a grace 
As mercy does. 
If he had been as you, and you as he, 
You would have slipped like him, but he like you 
Would not have been so stern.

Even when unmasked, Angelo seeks death for himself.  He does not know how to ask for forgiveness, for mercy, even for himself.

There is much more to Shakespeare’s Measure for Measure.

Against Rigorism 
Measure for Measure is an argument against rigorism in the application of law, particularly in the criminal law, an argument against legal zealotry.

Measure for Measure argues that we are all flawed, both those in authority, and those not in authority.  The law ought take this into account.  The argument of Measure for Measure is that law is about persons, that law is far more than the rigid application of rules.  The application of law must be tempered by the goal of law, which is the good of the person, the good of the community. The application of law must be tempered by equity, by mercy.

These general considerations do not determine what ought be the legal rule in particular circumstances, how precisely the law should be applied in this or that situation. There are prudential considerations here, considerations about which different minds may reasonably differ.

Measure for Measure 
Most of Shakespeare’s plays take their name from their lead character, from their principal protagonist. Singularly, Measure for Measure takes its name from a passage of the Sermon on the Mount recounted in St Matthew’s Gospel:

Do not judge, or you too will be judged.   For in the same way you judge others, you will be judged, and with the measure you use, it will be measured to you.  Why do you look at the speck of sawdust in your brother’s eye and pay no attention to the plank in your own eye?   How can you say to your brother, ‘Let me take the speck out of your eye,’ when all the time there is a plank in your own eye?   You hypocrite, first take the plank out of your own eye, and then you will see clearly to remove the speck from your brother’s eye.

If this is not clear enough, one may recall that the Lord’s Prayer provides the criteria of forgiveness–“forgive us our trespasses as we forgive those who trespass against us”.  And the Golden Rule, to be found, not only in the Gospels, but also in the Jewish scriptures, in Tobit – “do unto to others as you would have done unto yourself”. The parables of the Good Samaritan, the Prodigal Son, the Unforgiving Debtor, as well as the account of the woman said to be caught in the very act of adultery, illustrate the proposition that we will each be judged in the measure that we accord others.

Image and Likeness of God 
No doubt the Gospel account of how we are to deal with others draws from the insight contained in Genesis that we are each made in the image and likeness of God.  Jesus of Nazareth urges that we are to love others as ourselves, that we are to love others as He loved us.  So, the words of Jesus of Nazareth recounted in the Sermon on the Mount provide a key to understanding Shakespeare’s Measure for Measure.

James I
A second key to understanding Measure for Measure is that it was first performed for James I in 1604, shortly after his accession to the English throne. Elizabeth I died in 1603.  Measure for Measure is Shakespeare’s advice to James I as to the role of law, and the role of a ruler, in governing his kingdom.

The Tudor and Elizabethan governments with their bloody hanging, disembowelling and quartering of Catholics, especially priests, with its enforcement of Anglican religious observance, exemplified the over-reach of the law.

Measure for Measure is suggestive of the over-reach of the law generally.  Examples of the over-reach of the law closer to our time include Prohibition in the United States; law in the Middle Eastwhich seeks to enforce the wearing of particular clothing by women; laws which impose criminal sanctions for adultery; law in Afghanistan which prohibits girls going to school and university, women engaging in paid employment; laws in Australia prohibiting the playing of two-up.

A third key to understanding Measure for Measure is the life of William Shakespeare, and the times in which he wrote. The proposal central to Measure for Measure, but rejected by Shakespeare, is the puritan proposal that sexual relations between a man and a woman outside marriage should be a crime under the law of the state, punishable by death.

To my mind the puritan proposal is extraordinary, at any time, in any place, in any circumstances.  Apart from the consideration that not every sin ought be a crime, how could such a law be enforced?  how could breach of such a law be detected?  with what heavy-handed and intrusive means would the guilty parties be identified?  with what certainty would guilt be determined?  what public good would such a law achieve?  what incentive would be given to the malevolent, the busybody, the tittletat, the spiteful, the purveyor of rash judgment, the calumniator?

Rejection of Puritanism 
The proposal that sexual relations outside marriage ought be a crime punishable by death was seriously put by some puritans in early seventeenth century England, and subsequently in colonial America. Measure for Measure is to be read as a rejection of seventeenth century English puritanism.  The puritans wished to use the power of the state, imposing the death penalty for what is really a very common human misdeed. There are limits to law. And human authority can be abused.  There is, of course, an important distinction between consensual and non-consensual acts, a distinction ignored by the Puritans.

Death Penalty 
At least in the modern world it is very difficult to justify the death penalty, even for the mosthorrendous crime, let alone for what is very common conduct in any society. The death penalty has a long history of abuse, too often imposed, too often imposed for trivial reasons, too often imposed after an unjust trial, once put into effect incapable of being rescinded. The decisions taken by Australian governments in the last century to abolish the death penalty are decisions to be proud of.

The Crucible 
Arthur Miller’s play, The Crucible, about witch-hunting in 1692-93 in the puritan Massachusetts Bay community of Salem is an illustration of how the “law” can be abused to enforce ideological orthodoxy.

St Thomas Aquinas 
St Thomas Aquinas, writing in the mid thirteenth century, in his magisterial Summa Theologiae, considered the very same issue which Shakespeare considered 350 years later in Measure for Measure. Aquinas asked: is it the business of human law to restrain all vice?  In his typical manner, Aquinas considers three arguments in favour of the proposal that human law should restrain all vice. Without analysing Aquinas’ argument completely, suffice to say Aquinas responds by saying that

  • human law is mainly concerned with acts that damage our neighbour very specifically;
  • human law brings people to virtue, not suddenly, but step by step;
  • human law necessarily falls short of the eternal law.

Aquinas quotes St Augustine to the effect that the law governing the civil community necessarily tolerates and leaves unpunished many wrongs.  Just how these principles are to be applied in multivarious situations demands prudence.

Having responded to the arguments contrary to his position that the business of human law is not to restrain all vice, Aquinas quotes St Isidore of Seville to the effect that law should be possible according to the nature and custom of the country.  Aquinas argues that human law is made for a great number of people, of which the majority have no high standard of morality.  Law, according to Aquinas, does not forbid all the vices from which upright persons keep away, but only those grave ones which the average person can avoid, and chiefly those which do harm to others, and have to be stopped if human society is to be maintained, such as murder and theft, and so forth.

Contemporary Issues 
There is much more to Shakespeare’s and Aquinas’ argument in the light of contemporary issues.  The complexity of modern society demands regulation and, on occasion, criminal sanctions proscribing behaviour, indeed vigorous enforcement of the law.    The 2023 film, The Sound of Freedom, illustrates the failure of law to effectively prohibit child sexual trafficking in both Latin America, and in the United States.  This not a film for the faint hearted. 

The current laissez-faire approach to all sorts of gambling in Australia, too often bringing misery to individuals and their families, on occasion, providing opportunities for laundering proceeds of crime; the current regulatory regime which insufficiently requires the provision of food as well as alcohol on licensed premises; the operation of “massage parlours” in Australia, in some cases, fronts for modern slavery; the failure to effectively prohibit child and other pornography on social media; the failure to effectively regulate IVF clinics which, on occasion, provide multiple “treatments” quite unlikely to achieve a pregnancy –require review.  On the other hand, the law is increasingly abused to enforce ideological orthodoxy against persons deemed suspect by contemporary opinion-makers.

There are prudential judgments here about which there can be differing but reasonable views.

Shakespeare’s argument in Measure for Measure is consistent with Aquinas’ argument in the Summa Theologiae.

Angelo & Isabella 
Angelo’s very name in Measure for Measure is an obverse criticism of a tyrant, under the guise of pretended integrity, misusing power for his own evil purposes.  Angelo condemns Claudio to death for the very physical deed he, Angelo, proposes with Isabella.  What Angelo proposes with Isabella is far worse, seducing Isabella with false promises of mercy for Claudio; lying to Isabella, that he will release Claudio if only she Isabella will sleep with Angelo; intending to use Isabella for his own sensual satisfaction, and then abandon her; proposing to seduce a person who wishes to dedicate her life to God as a religious.

Angelo is manipulative and deceitful, and has no regard for Isabella.  Angelo had previously been unfaithful to his betrothed Mariana, venal, heartlessly casting Mariana aside, when the dowry did not appear. Angelo is calculating, malicious, the opposite of impulsive, warm-hearted Claudio.

Claudio & Juliet 
Claudio and Juliet were lovers.  They do what lovers do, being entirely frank and respectful of each other.  At worst, Claudio and Juliet loved each other too much, too soon.  At worst, Claudio and Juliet were premature in their lovemaking.  Claudio and Juliet did not defer the physical act pending the dowry.  Claudio and Juliet were impulsive.

Angelo’s solution to what Shakespeare accepts as wrongful conduct is the force of law including capital punishment.

The Duke’s solution is forgiveness and mercy! and marriage!  Marriage is a relationship which thrives on forgiveness, on mercy, a relationship which cannot exist without forgiveness, without mercy.  Marriage is a relationship which will be irrevocably harmed if one were consistently to insist on one’s rights. Marriage demands self-giving on the part of each spouse.

Ours is a very different society from seventeenth century Jacobean England. Does the “problem” of Measure for Measure have any applicability in a society which is post-Christian? in a society where traditional moral rules are no longer widely accepted? The “problem” proposed by Measure for Measure and Shakespeare’s response is not applicable in a precise sense, but is applicable in a more general sense.

Contemporary Ideology 
The Christian perspective on law and justice, found in the writing of both Shakespeare, and of Aquinas, three hundred and fifty years earlier, has a realism not found in 18th century puritanism, nor in 21st century ideologies which would press the law into service of contemporary ideology.

Law is about flawed persons.  There must be an understanding of law’s limits, and of forgiveness and mercy. Law is about persons who possess a dignity which cannot be lost even when they are alleged to be guilty of serious crime.

No matter what the alleged crime, the presumption of innocence, and the right to a fair trial, are essential to a decent society.  Media witch-hunts are no alternative.  On the other hand, on occasion, the law must be enforced vigorously to protect the vulnerable. 

Imprisonment as Last Resort 
Greg Smith SC, a former President of the St Thomas More Society, was Attorney-General of NSW, from 2011 to 2015.  Greg aroused much ire from Sydney’s shock jocks by arguing that imprisonment is a last resort, a measure to be imposed reluctantly.  To the outrage of the shock jocks, Greg argued imprisonment is a response to be imposed where there is really no other alternative.  In Australia today young aboriginal men are much more likely than other young men to end up in gaol. We need to ask: why? and do something about it.  Greg Smith’s approach is surely consistent with the personalist approach to law articulated by Shakespeare in 1604!  Forgiveness and mercy are qualities which ought characterise our personal relations, relations between lovers, between spouses, which ought characterise our system of justice.

From time to time, I have a client engaged in litigation whose approach is “a matter of principle”.  I inwardly groan when I hear these words which overlook the reality that litigation is unpredictable; that it usually involves issues on which reasonable persons can take different views; that the courts often get it wrong, if not legally, at least morally; that the best approach is probably to shrug one’s shoulders and get on with life; that driving home whatever forensic advantage one possesses, real or imagined, is expensive as regards money and time, let alone emotionally.  Relying on some technical legal point, disregarding the human reality of things, is never the way to go. Hatred is never a good approach to litigation!

Much More 
There is much more to Measure for Measure. What makes Shakespeare interesting is that he provides rounded characters, rife with the inconsistency of real human beings.  Shakespeare puts himself in the place of the characters he creates, expressing to a tee their thoughts and emotions. Shakespeare provides complex situations that permit differing interpretations.

Some will find Shakespeare’s realism shocking.  But Measure for Measure (like all Shakespearean plays) is like life. There is more to law than rigid application of rules, more to personal relations than entitlement. We need to forgive, to show mercy.

Michael McAuley
Friday 29 September