by Roger Stritmatter
Kill All the Lawyers?: Shakespeare’s Legal Appeal by Daniel Kornstein. Princeton: Princeton University Press, 1994.
According to one prominent version of recent intellectual history, the outcome of the 1987 Moot Court Trial at which Supreme Court Justices Stevens, Blackmun and the late William Brennan heard arguments on the authorship controversy, was definitive. The Oxfordians, we are told, lost.
In fact, the reservations of Blackmun and Stevens at that time appear to have been considerable and the point should not be lost in the Stratfordian spin cycle. That is to say, two of America’s most imminent Jurists began by considering the authorship controversy and concluded (some years later) by becoming de facto Oxfordians.
This should not be a complete surprise. Law and Shakespeare have apparently always gone hand in hand. Since its earliest surfacing in tracts such as the 1640 anti-Stratfordian parody The Great Assizes Holden at Parnassus, the rhetoric of authorship doubt has linked—implicitly or explicitly—the legal to the literary.
The interdependence of legal and literary authorship discourses may be a clue to understanding their cool reception among the tenured. Such a linkage is in itself clearly unacceptable to dominant Romantic presumptions such as Harold Bloom’s notion of the the “autonomy of the aesthetic,” a doctrine in which a fictional genre like a play can by definition have almost nothing in common with a legal brief such as Justice Stevens’ own entertaining and (in places) profoundly ironic “Shakespeare Canon of Statutory Construction” (Pennsylvania Law Review, 1992), a legal opinion delivered in five acts expanding upon his remarks at the 1987 Moot Court Trial.
Indeed the deeply grained romanticism of much of 20th century Shakespeare studies with its ultimate dependence on mystical concepts like genius, can be read as a reaction against the appeal to reason which the best anti-Stratfordians, like good lawyers, have always made a major platform of their work. The question of how well Shakespeare understood the law is but one element in this fascinating and complex intellectual history.
For his part, Mark Twain could not recall testimony (“great testimony-imposing testimony-unanswerable and unattackable testimony”) as to any of Shakespeare’s hundred specialties, except for one: the law. Historically, lawyers such as George Greenwood—whose several anti-Stratfordian books (1908-1923) remain among the most persuasive works in the history of the controversy—have been closely associated with the anti-Stratfordian movement.
This association has, however, become more evident in the wake of the 1987 Moot Court Trial. In addition to Justice Stevens, Justices Blackmun, Powell and Kennedy have also been voicing doubts about the orthodox view of Shakespeare. Blackmun, writing to Charlton Ogburn Jr., declared that “The Oxfordians have presented a very strong almost fully convincing case for their point of view. The debate continues and it is well that it does. We need this enlightenment in these otherwise somewhat dismal days.”
Therefore, it might seem that a book on Shakespeare and the law published in 1994 (Daniel Kornstein’s Kill All The Lawyers? Shakespeare’s Legal Appeal, reviewed in the Society’s Autumn 1994 Newsletter) would want to make the most of the populist ferment about authorship represented in remarks such as Blackmun’s. Instead, Daniel Kornstein’s work is flawed by the systematic suppression of any mention of the authorship question.
Thus authorship surfaces in this book not as an intellectual question, but as a symptom of the Freudian return of the repressed, a return which is perhaps most urgently symbolized in the question named in the book’s title. Kornstein’s leading premise in Kill all the Lawyers? is that when Dick the Butcher cries amen to Jack Cade’s proposal to make himself dictator of England (2 H6, 4.2), with his famous line, “the first thing we do, let’s kill all the lawyers,” he may well be representing Shakespeare’s own view of lawyers. This is he says, the “plain meaning of the line.”
Indeed, Kornstein seems to feel that perhaps Shakespeare can only be defended by “lawyercide,” hence the book’s curious title. “Defended from what?” a naive reader might be tempted to ask. The question may be naive, but the answer comes only by reading between the lines of this curiously schizoid book on Shakespeare and the law.
In fact, Kornstein comments directly on Justice John Paul Stevens’ contrary view of this same famous line, and the resulting attack is both mildly comical and yet quite revealing of how the great authorship divide affects any commentary on Shakespeare.
Stevens, writing an opinion in the case Walters vs. The National Association of Radiation Survivors et alia (fn. 24), states that Dick’s line does not represent Shakespeare’s own opinion about lawyers. Rather, Stevens held that a careful reading of that text will reveal Shakespeare insightfully realized that disposing of lawyers is a step in the direction of totalitarian government (emphasis added).
Kornstein, however, will have none of this. To him, Stevens’ s epistemological caution about not attributing the quotation to Shakespeare becomes a convenient pretext for the argument ad hoininem: Stevens (says Kornstein) reacted to Dick’s line the way one might expect all thin-skinned, oversensitive defense lawyers to react to it.
Now, this seems more like choice material for satire than an intellectual position anyone of Kornstein’s considerable rhetorical talents should really wish to defend. Justice Stevens, a thin-skinned, oversensitive defense lawyer? Well, yes, that pretty much seems to be Kornstein’s caricature of the man and, more to the point, his views.
Authorship question inescapable
To be fair, Kornstein does cite Justice Stevens’ 1992 essay. However, he characterizes it — without naming the title — as a law review article invoking the Merchant of Venice as support for strict justice yielding to equity. At best this is an amazingly narrow view of a complex opinion. A more cynical reading might consider the citation merely deceptive. At any rate, informed readers should not make the mistake of supposing that everything is what it seems to be in Kill All the Lawyers?
While it has been rumored that Kornstein considered including a chapter on the authorship controversy, from the point of view of intellectual history the book is but one chapter in the orthodox response to Ogburn and the other heretics. Hence Kornstein’s analysis of the legal dimension of the plays (which is itself not without interest and insight) is haunted by the inevitably twofold Stratfordian project of 1) casting doubt on the author’s legal accomplishments, and, 2) providing sufficient biographical matter to show that William of Stratford could very well have acquired those Shakespearean legal accoutrements which cannot be denied, even by Daniel Kornstein.
The Shakespeare whom Kornstein feels compelled to defend, if necessary by cleansing the republic of excess lawyers is—make no mistake about it—the Stratford straw-man. A naive reader, however, may never recognize that Kornstein’s own inflexibly orthodox premises have themselves been brought into question by his fellow lawyers; in such a context, the endorsement of killing lawyers has a chilling effect which is no less real just because it may not represent Kornstein’s conscious intentions.
Kill all the Lawyers? is an unabashed appeal on behalf of William of Stratford as Shakespeare against the outrageous slings and arrows of anti-Stratfordian dissent. Much that might have been enlightening accordingly proves to be mere dismal business-as-usual, semantic shadow-boxing with anti-Stratfordians, without doing them the simple dignity of naming them or responding to them on their own terms.
Kornstein systematically fails to engage the real intellectual problems posed by the existence of the authorship controversy, and frequently reiterates that Shakespeare, a bad or doubtful lawyer in his own right, must be defended (patronizingly) by critics like Kornstein—even, if necessary, by advancing Dick the Butcher and Lord Cade to the Supreme Court—from which they can soapbox about their social programs as if they were sound public policy.
What is missing is any awareness of the historically-inscribed paradox which lawyer/author Kornstein should be considering: the lawyers against whom he has taken up the banner of the Stratford legend are the same amateurs who, inspired by enthusiasm and even, perhaps, by love, are challenging the assumptions of a distinctly professional cult of expertise for which Kornstein has become a prominent apologist.
That Kornstein is out of step with the thinking of at least two Supreme Court Justices is no credit to Kill All the Lawyers? This is a book written by a lawyer whose critical sensibilities have been dulled into awed submission by the shining credentials of his literary colleagues. The result is a version of literary principle which at its worst lapses into sublimely ridiculous phrases like the “plain meaning of the line” and at its best does little more than reiterate the obvious intellectual dilemma posed by the cultural symbiosis which Kornstein astutely enough discerns between Shakespeare and the law, but on which he then places a distinctively Stratfordian spin.
Original Intentions and Self-indulgent Readers
The confusion is not entirely a result of Kornstein’ s phobia towards authorship studies. As an enthusiastic newcomer to the rapidly expanding field of law and literature studies. Kornstein is much impressed by the doctrine of “reader-response” theory, which holds that the original intent of an author— in law or in literature—is less important than the emotional or intellectual uses which a contemporary reader may wish to apply to a work.
Kill All the Lawyer’s glib position on authorship is intimately related to this theorem. As with most contemporary Stratfordians, the “reader-response” theory-leaves Kornstein a convenient theoretical escape clause for denying that authorship matters at all. Thus, what the author may have intended is irrelevant —what really matters is how we modern readers chose to construe the meaning of his words.
There is no use embarking on an extended criticism of this theory, although the uses to which it seems destined to be put will almost certainly cause its originators (notably Stanley Fish) to wonder at what they have wrought. Kornstein’s own feeble attempt to retrofit the words of Dick the Butcher to his contemporary ideological needs (slapping around lawyers who question the bona fides of the Stratford man) shows just how self-serving the doctrine can become in misguided hands.
To conclude, one may note that Kornstein’s sincere attempt to understand the legal themes of the Shakespeare canon (surely a worthwhile endeavor to which the author will, it is hoped, essay to make further and more sophisticated contributions) is flawed not only because the author fails to engage the authorship controversy itself, but also because he dismisses the sophisticated work of previous Shakespearean legal scholars such as Campbell (1859) Davis (1883) or White (1913) with a distinctly Cadean sneer towards the accomplishments of the past.
Kornstein activates the typical academic escape clause by identifying this earlier work as merely seeking to catalogue and explain–exhaustively and comprehensibly–every technical legal reference in Shakespeare. He fails to acknowledge that such an intellectual project was from its inception inseparable from the authorship question. An intellectual history of Shakespeare and the law must directly confront this relationship between text and motivating context, and the manner in which the authorship question has — both directly and indirectly — influenced the development of contemporary conceptions regarding Shakespeare’s legal knowledge.
Moreover, any exploration of Shakespeare’s legal thematics is also inseparable from the matters of technical accuracy addressed by these earlier critics. For example, does specific terminology of law (or other disciplines) affect a reader’s comprehension of the resolution of philosophical or dramatic cruces in the text?
Kornstein barely considers the problem and doesn’t even seem to be aware of its existence. Instead he mistakenly accepts the 19th century view, common to both Baconians and Stratfordians (at least when they argued qua Stratfordians) that the question of Shakespeare’s legal knowledge (i.e. how much he supposedly had) could be assessed quantitatively, ignoring qualitative considerations of motive and theme.
Kornstein avoids examining such real intellectual problems with whimsical appeals to liberate readers from the supposed tyranny of lawyers. The result is an odd misfit of competing claims lodged for different purposes at different places in Kornstein’s book.
We read for example that the Bard wrote a history play four hundred years ago (Richard II), and we turn to it today as authority on the meaning of a constitutional right—an admission of the immense anxiety of influence which the Bard casts over the legal profession. We read that he has been cited or quoted by American courts more times than any other literary figure—placing this influence in comparative perspective.
But then, having acknowledged this extensive, sophisticated impact of Shakespeare within our legal culture, we are treated to the following bizarre scenario by way of explanation: Shakespeare probably used an easy and by now time-tested technique for assuring the accuracy of his legal references—he showed drafts of those legal allusions to lawyer friends who would correct any errors!
Surely something is wrong with this picture. It is like suggesting that Justice Stevens circulated his “Shakespeare Canon” essay to all the members of the editorial board of PML A just to check up on any loose literary screws which might be rattling around in the text before sending it on to The Pennsylvania Law Review. It doesn’t match the matter to the man.
It has already been indicated that the matter of how accurately Shakespeare uses legal terminology cannot be assessed without simultaneously considering the motives— both of author and character—such usage illustrates. Contriving fanciful scenarios in which Shakespeare had his work vetted by a professional lawyer in order to insure adherence to some abstract standard of correctness is no solution to this problem.
While not without a few redeeming merits, Mr. Kornstein’s book will have a shelf life of a few months at best, and if we want to know where the law and literature movement is headed, we need to look elsewhere for instruction. If the legal principles adumbrated by the Bard himself, in a play such as Measure for Measure , were actually applied by his readers, such readers would understand why Justice Stevens, in his “Shakespeare Canon” essay, places such distinctive emphasis on the theory that words—even apparently small and inconsequential words —can have implications which are not immediately apparent.
Knowing and Not Knowing
Admittedly such a belief is founded on the premise that Supreme Court Justices often know more than they can say, but this premise seems more secure than most of the speculations about authorship which sustain the analysis of Kill all the Lawyers?
Daniel Kornstein boldly endorses the fiction that his approach to Shakespeare is free of ideology, a statement with no sober reviewer could agree. Kill all the Lawyers? is an intrinsically ideological book: indeed Kornstein’s contrary claim is merely a symptom of his own intellectual bondage to the intellectual presumptions of the fundamentally ideological Shakespeare orthodoxy.
Where, then, should one turn in attempting to assess the present state of the authorship controversy and its actual or potential relation to the burgeoning academic law: and literature movement?
In his closing remarks at the 1987 Moot Court Justice Stevens admonished Oxfordians to find a concise, coherent theory of motive for concealment of Oxford’s authorship. Stevens stressed the role of the monarch in bringing about what he later termed the imaginative conspiracy of the authorship hoax. The ploy, thought Stevens, could only have been the result of a command from the monarch: “The strongest theory of the case requires an assumption for some reason we don’t understand, that the Queen and the Prime Minister [i.e. Burleighl decided we want this man to be writing plays under a pseudonym. And I will go no further.”
Surely Stevens’ elliptical final remark, “And I will go no further,” is a tip-off from a judge who knows more than he can say, to an astute lawyer considering how to frame his appeal to the court of public opinion. While Daniel Kornstein, in his tendentious legal brief for the man from Stratford, knows less than he writes, Justice Stevens knows more than he says. For Stevens the Virgin Queen is a co-conspirator in the Shakespeare question. It is a pity that Kornstein was too busy writing in service to the Stratfordian ideology hear the hint.
Reprinted with permission of the author from the Summer 1997 (33:3) issue of the Shakespeare Oxford Newsletter, with minor modification, August 2005.