Measuring justice

Shakespeare’s “Measure for Measure,” Victor Hugo, summer lunch programs, social justice, trust in in the courts

One concept of justice

I’m reading through Shakespeare’s plays in an attempt to make sense of the world. Today I’m writing about “Measure for Measure.” For a quick reference to posts on previous plays, click here. Next week, “All’s Well That Ends Well.”

Jean Valjean’s story¹ captivated my teenage self with its candid exposition of justice miscarried. Imprisonment for the crime of stealing bread to feed children seemed so manifestly unjust that, I thought, everyone must see the inhumanity of Valjean’s treatment under the law. Valjean stole not to feed himself, nor his own child, but his sister’s children. This wasn’t a crime for personal gain or vengeance.

Transposing Justice Potter Stewart’s famous quote, I thought injustice was another thing that we ‘know it when we see it.’²

I still find it hard to imagine that feeding children could be a partisan issue. No matter if the child isn’t mine or related to me. All children, regardless how mean the existence in which they live, should be provided the nutrition necessary for life. How could this possibly be controversial? Who can see  a hungry child and not want to help?

The USDA offers summer free lunch programs to kids that need it. And yet, 15 US states have opted out of the program. This is shocking to me. People who wouldn’t turn away a starving stray cat find it entirely conscionable to deny federal funding to feed their state’s children. These are not, I think, people who are inhumane by nature, but they allow their attachment to a political movement to disrupt their own humanity.

For any event reported in the news, people take a side. Little matter that none of us can be as informed as experts on that news story: we all think we know what’s right. Seen through the prism of our political allegiances, we know the ‘right’ position to take. We take those disagreements to the ballot box. We try to effect just outcomes through political means. When an issue is stymied by the political process, it goes to the courts. There, society hopes, justice can prevail.

Yet when public confidence in the US Supreme Court topples off a cliff, society must question the fundamentals of justice. From where does the court obtain its authority? Should  the court balance objectivity and subjectivity? What qualifies a judge to be objective? Does it require not having a stake in the outcome? If the court’s decision isn’t reasonable to the ordinary citizens it governs, is it valid?

Shakespeare’s Measure for Measure is a play for our times. It, too, questions these and more.

Summary

The Duke of Vienna prepares to depart on an unspecified journey. He deputizes Angelo to act in his name and commissions Escalus to assist Angelo with his wise counsel. After the Duke takes his leave, Angelo and Escalus retire to agree on how Angelo shall rule as the Duke’s deputy.

We soon learn what course they settled on. Claudio, a young gentleman, is betrothed to Juliet and she’s with child. Angelo has Claudio seized for fornication, a capital offense, which Angelo is determined to enforce swiftly and with impunity. We later learn that Angelo hasn’t singled out Claudio; he’s filled the jail that recently held few prisoners.

Claudio’s sister Isabella learns of her brother’s arrest just as she’s entered a convent to begin her novitiate to become a nun. Lucio, a man known for being a flippant provocateur (a ‘fantastic’ per the Dramatis Personae), arrives at the nunnery to convince Isabella to plead Claudio’s case to Angelo. Distraught by the news, Isabella agrees.

Despite rumours that the Duke has accompanied others on a political mission to Hungary, it turns out that the Duke is hiding in Vienna. He’s on a mission to observe Angelo and Escalus, unnoticed, to determine how his deputy would rule in his absence. Dissatisfied with what he sees of Angelo’s mercilessness in meting out justice, the Duke determines to assume an active role as a catalyst for a more balanced legal outcome. He adopts a monk’s costume so that he can move through Vienna unrecognized.

Isabella meets with Angelo to plead for her brother. Lucio prompts her from the wings, urging her to press her case more forcefully as Angelo remains unmoved by her arguments. Eventually, Angelo relents, and we see that Isabella has indeed made an impression on him. Ignoring her impassioned rhetoric, he’s attracted to her physically (a plot point that’s engendered centuries of arrogant men rebutting a woman’s rage with  “Did anyone ever tell you you’re beautiful when you’re angry?”). He offers her a deal: sleep with him, and he’ll let her brother live. He gives her a small amount of time to think about it, since he’s set Claudio’s execution for the next day.

Although Isabella would offer her life in exchange for her brother’s, her conscience won’t allow her to do something that would condemn her soul not only for the present but also into the afterlife. She visits her brother in jail and explains Angelo’s deal to trade her virginity for her brother’s life. Claudio won’t allow her to give her life for his, but he’s less convinced that losing her virginity would be as dear a price as his death. Bereft, Isabella can’t accept her brother’s reasoning, and sees no way forward.

She meets a monk (the disguised Duke), who offers her an alternative. He knows that Angelo had been betrothed to a young woman named Mariana. Angelo had ditched Mariana when her fortunes changed and she was no longer able to offer him a dowry. The monk knows that Mariana is still in love with Angelo, and he’s certain that she would agree to represent Isabella in Angelo’s bed. The monk suggests that Isabella accept Angelo’s terms, but set some of her own: the assignation must be brief and in the darkness. Isabella agrees and takes the terms to Angelo. With his agreement, the plot is set.

The Duke, in disguise, finds Lucio constantly hovering, overhearing and pontificating on everything taking place. Lucio has an opinion about everything and everyone. The false monk baits Lucio to vent his opinions about the Duke, which Lucio can’t help but do. He vilifies the Duke—whom he thinks is absent—and even admits to his own terrible crimes. Lucio waves off every caution the monk sends his way. His confidence and lack of awareness are his essence.

At the prison, we meet the Provost who oversees the prison and executions. Although he’s sympathetic to Claudio, he’s required to follow Angelo’s orders. He reviews the next day’s executions with the executioner. Two men are scheduled for execution: Claudio and Barnardine. Unlike Claudio, Barnardine’s been the recipient of slow justice. He’s a reprobate and a murderer. He spends his days in prison drunk and sleeping, waking only to curse and drink some more—a polar opposite to Claudio.

Mariana, having agreed to the scheme to impersonate Isabella, visits Angelo that night as planned. Early the next morning, the Provost receives a letter from Angelo. Everyone expects the letter to include a commutation of Claudio’s sentence, but instead it’s quite the opposite: Angelo orders Claudio’s beheading at 4am, and to bring the head to him no later than 5am. Barnardine is to be executed in the afternoon.

The Duke in disguise confers with the Provost to devise a plan that would spare Claudio. Initially, they plan to execute Barnardine in the morning, shave his head and beard to make the head less recognizable, and present the head as if it were Claudio’s to Angelo with a strained story about why the head was shaved. The executioner tries to rouse Barnardine to execute him, but since the prisoner’s in a drunken stupor he can’t be awakened easily. The executioner would have given up at this point, but the monk urges him to wake him up more forcefully. Once awake, Barnardine is unrepentant and unwilling to go to the scaffold. This is enough to forestall his execution.

Fortunately, the Provost offers up another solution: a man who looks very like Claudio has died this morning in the prison.  They decide to take the dead man’s head to Angelo, passing it off as Claudio’s. The monk gives the Provost a sealed letter from the Duke, telling him that the Duke will arrive in two days’ time to sort it all out.

Isabella comes to the prison, and the monk tells her that her brother is dead and his head taken to Angelo. She, naturally, is overcome with grief.

Two days later, the Duke arrives at his court with Angelo and Escalus on each side. Isabella steps forward and accuses Angelo of murder and rape. The Duke, acting surprised and amazed, wonders whether she’s mad. Lucio interrupts repeatedly to attest to the truth of Isabella’s accusations, and the Duke repeatedly tells him to shut up. The Duke has a guard take hold of Isabella and threatens her with imprisonment. He then asks if anyone can substantiate her accusations, and she mentions a monk, named Lodowick, who counseled her and can serve as witness. The Duke sends guards to find the monk who had helped Isabella.

Mariana, disguised by a veil, is brought in to testify. After some circuitous identification of the man with whom she’d shared a bed, she unveils herself and reveals that Angelo is her ‘husband’ in act but not name. Angelo denies that he’s known Mariana carnally, since he thought he’d been with Isabella that night. He dismisses the testimony of these two women, Isabella and Mariana, saying that they’re not only unreliable witnesses but must be pawns of some man who has it in for him.  The Duke suggests that Angelo has been slandered. While they await the arrival of the monk Lodowick, whose testimony is essential to corroborate the women’s, the Duke says he needs to step out for a minute.

 The Duke enters disguised as Lodowick. Lucio has advised Escalus that the monk is dishonest, and has spoken ill of the Duke. Although Lucio is an unreliable character witness, his opinions give Angelo and Escalus reason to discount anything he says. The Duke, testifying as the monk Lodowick, has this to say:

DUKE
    … My  business in this state
    Made me a looker-on here in Vienna,
    Where I have seen corruption boil and bubble
    Till it o’errun the stew; laws for all faults,
    But faults so countenanced that the strong statutes
    Stand like the forfeits in a barber’s shop,
    As much in mock as mark.
ESCALUS Slander to th’ state!
    Away with him to prison!
-Act 5 Scene 1

After Escalus’s order to take the monk to prison, a melée ensues in which the Provost attempts to make the arrest, the Duke (as Lodowick) protests his arrest, Angelo eggs on Lucio to assist, and amidst the jostling, Lucio pulls off the monk’s hood, revealing the Duke. The now-disclosed Duke remarks to Lucio, “Thou art the first knave that e’er madest a duke” before ordering the guards to apprehend Lucio.

The Duke demands that Angelo admit his culpability, then orders that he marry Mariana, sending them off with a friar to perform the ceremony. While Angelo and Mariana are off-stage being wed, the Duke pardons Isabella for supposedly slandering Angelo. 

Angelo returns with Mariana, newly wed, and the Duke orders him taken to the same prison cell that had housed Claudio to wait to be executed. Mariana tries to intercede on her husband’s behalf, but the Duke resists her arguments. Mariana begs Isabella to join her in her plea, claiming that her husband was but ‘a little bad.’ The Duke corrects her: he’s sentenced her husband not for his amorous indiscretion but for killing Claudio.

Isabella beseeches the Duke, arguing that Angelo acted in her brother’s death as the law dictated. She admits Angelo had bad intent in attempting to rape her, but people can’t be charged criminally for thoughts, only deeds. And his deed was to bed with his (current) wife.

The Duke says he’s unconvinced. He then asks about the unusual hour of the beheading. Why so early? The Provost testifies that he was sent the order by private message; for this, the Duke relieves him of his responsibilities and asks him to hand over his keys. The Provost argues that he didn’t carry out the orders; in fact, he didn’t execute Barnardine. The Duke sends for Barnardine.

The Provost returns with Barnardine and another prisoner who’s hooded. The Duke asks who the hooded man is; the Provost says it’s another prisoner he saved, one who looks remarkably like Claudio. The hood is removed, revealing Claudio. The Duke makes an offer to Isabella: if she marries him, he in return will pardon the prisoner.

The Duke then returns to Angelo’s case: if Claudio isn’t dead, then the murder charge against Angelo must be dropped.

The Duke next deals with Lucio, charging him for his vile slander against him. Lucio tries to brave it out, but the Duke orders him whipped then hanged. He orders the Provost to search out any woman in the city who acknowledges bearing a child of Lucio’s out of wedlock. If one is found, Lucio must marry her before he’s whipped and hanged. Lucio begs not to be married to a whore even if he’s to be killed; the Duke sends him to prison.

The Duke tells Claudio to wed Juliet. He thanks Escalus, and then the Provost, offering him a promotion, and tells Angelo to forgive the Provost for his deceit in the supposed executions. He ends the play thus:

DUKE
[…]
                                                Dear Isabel,
I have a motion much imports our good,
Whereto, if you’ll a willing ear incline,
What’s mine is yours, and what is yours is mine.
[To all]  So bring us to our palace, where we’ll show
What’s yet behind that’s meet you all should know.
-Act 5 Scene 1 

Thoughts

Scholars refer to this play as one of Shakespeare’s ‘problem plays’: one in which the play’s primary interest is in working through a philosophical, moral, or theological problem. In the more colloquial use of the term, audiences find it problematic for its inclusion as a comedy (not only is it not amusing, but the marriages that qualify it as a comedy are enforced rather than the product of love) and in its choice of locale, Vienna. It may be hard to remember that this play is set in what we know as Austria, and not Italy, considering the character names. You may have found yourself transposing Venice for Vienna; if so you’re not alone.

The play’s reference to Hungary suggests, however, that the play is referring to the Holy Roman Empire (HRE), whose rule was located in Vienna for parts of the 16^th and 17th centuries. This was during the Hapsburg rule, during which the emperor repeatedly sought allegiances with Hungary, which was adjacent to but not part of the HRE.  Locating his drama within the HRE provides a sympathetic backdrop to the moral and political themes of the play.

In this light, the Duke’s character becomes a surrogate for a god who gives man the free will to make ethical and moral decisions, observes what he makes of it, and intervenes as he deems necessary to guide men to rule with more justice than they would do alone. This is a trickster god, playing with humans to nudge them to be their worst selves, as he does with the Lucio character. All of which undermines any conception of morality and justice as ordained, immutable, and objectively right.

Rather, infusing justice with mercy is shown to be both messy and necessary. Angelo’s decision to dispense swift and merciless justice is felt by all to be a miscarriage of justice, despite his legal decision being textually correct. Fairness requires that the objective application of the law be balanced by mercy. But fairness is just a sense that people have of what is right and wrong. Instead of bringing clarity it muddies the water.

So it is that Claudio and Juliet’s relationship is murky. They are said to be married, but their union hasn’t been certified. Claudio understands that strictly speaking, he’s broken the law, but he feels justified in his lived experience of sharing his bed and life with Juliet, whom he considers his wife. Angelo, in proposing to rape Isabella, finds his own justification, even though we share Isabella’s revulsion in accepting that rape is the same as pre-marital sex.

The role of intent in adjudicating guilt

The play raises several issues integral to our concepts of guilt, both concerning the idea of intent.³

1.      If a man is tricked into wrongdoing, is he culpable?

2.      If a man intends to do wrong, but is tricked into unwittingly acting legally, is he guilty of a crime he only thought he was doing?

The Duke gave Angelo full agency to rule as he wished, without interference. But his interventions in every other instance saw him not just suggesting, but plotting and coercing others. Despite this, he argues that each should be accountable for their actions, using his power of pardon to remove the sentences that seem unjust. For instance, he fires the Provost for following orders from Angelo, even though he didn’t really follow those orders and the Duke knows this to be true. The Duke therefore didn’t act as an arbitrater of law in this instance, but to execute a scheme to achieve his purpose.

Lucio’s case stands apart from the others. The Duke in disguise entices Lucio to denounce the Duke, then uses that against him in the last act. Lucio had admitted his own crimes when he thought he was speaking to a monk, so his culpability isn’t really at issue when the Duke sentences him. Even if he thought he thought his admissions wer protected by confessional privilege, Lucio doesn’t deny the facts in his confession when confronted by the Duke.

With Barnardine’s character, we discover the essential importance for a prisoner to acknowledge his criminality. Barnardine, a villain by every account, still lives at the end of the play, seemingly by virtue of maintaining he won’t repent his crimes. The standard appears to be, therefore, that guilt requires knowingly executing a crime and acknowledging it. That’s a high bar.

We could extend that argument to imply that judgement is earned, not bestowed. The role of the judge would therefore be to find the facts, and leave it to the defendant to accept the facts as true and repent of them. Whoever fails to accept them will be judged in the afterlife. This might fit within a theological context, but legally it would leave the most villainous free to live another day. Only the just would suffer the consequences of their criminal acts.

Isabella addresses the opposite side of the coin: men cannot be judged for their intent but for their actions. You may think the worst crimes imaginable, but as long as you don’t carry them out, you’ve committed no crime. The problem is that Angelo not only thought about it, he had sex with a woman whom he assumed he was coercing. He was tricked into not actually perpetrating the rape that was his intention.

From this argument, we see the obverse: a man can knowingly execute what he thinks is a crime, but not be held accountable if the facts don’t support his assumptions. He intended to victimize Isabella; instead he was duped into being intimate with a woman he’d rejected once she had no means to enrich him. This is an argument for a purely objective justice based on factual evidence.

Theological, not legal, justice

In the end, neither argument succeeds. Justice in the Duke’s court is whatever the Duke says it is. He dispenses justice; it’s neither earned nor objectively determined. He’s supreme. He may have set down commandments that people are expected to live by and accept penance for breaking, but he can pardon them at will, relieving them of their guilt, or not. He toys with his subjects, testing them, dangling punishments in front of them, only to whisk them away. By this, he demonstrates the power he holds over them. Their lives and fortunes hang in the balance of his mercy and judgement. For the most part, he acts benevolently and with understanding. Wanting reverence, he buys it with pardons and promotions.  When someone like Lucio doesn’t give him what he wants, he strikes him down.

In the end, we’re expected to see the various fortunes of the characters as reasonable and merited. Escalus and the Provost did their best to protect the state, and they’re rewarded. Claudio is free to marry Juliet. Mariana and Angelo are married. Lucio gets what he deserved.

These judgements sit oddly with the disposition of Isabella’s fortunes. She wanted to live as a nun, separated from the world of men, devoted to piety and charity. She desired a life not of privilege, but of restraint. From this aspiration, she’s pushed into arguing against the Duke’s deputy to plead for her brother’s life, coerced into playing along with a scheme that would seemingly have her raped, and beseeched to plead lenience for a man who would have raped her, and who she thinks killed her brother. Twice she’s been propositioned to trade her virginity to spare her brother’s life, first by Angelo and later by the Duke. Isabella doesn’t reply to the Duke after he makes this so-called offer, nor does she speak for the rest of the play. What Isabella wants is of no concern whatever. Is she a willing bride, or is she again being coerced by a man to fulfill his desires?  How just is the Duke if he denies justice to his wife? The absence of justice for Isabella signals an uneasiness with the play’s resolution. Finally, it’s really power that has the day, neither justice nor mercy.

Justice and fairness

The play makes a strong case that the unmerciful application of the law is unjust. Fornication was illegal, Claudio and Juliet weren’t officially married, and yet everyone except Angelo considered it unfair to apply the law to Claudio. He was betrothed to Juliet. He was otherwise an upstanding man. What harm is done to the state if he’s allowed to live?

Measure for Measure also dramatizes the importance of justice being perceived by society as fair. It cannot be one justice for you and another for me, but rather the same for all (measure for measure). Outcomes must align with the community’s sense of fair play: a common man may not be able to parse legal arguments, but he must be able to recognize the sentence as commensurate with the crime as well the character of the defendant. A perceived mismatch shakes the foundation of trust in the state.

Today, social justice causes illustrate the profound impacts of justice denied. When the populace witnesses the murder of a man while being apprehended by the police with lethal force, trust cannot be fully restored if the state must be forced to enact its own laws, measure for measure. What trust do citizens have that they too won’t find themselves at mortal risk during a routine traffic stop, measure for measure? Courts that do not recognize precedence while adjudicating different outcomes for the same facts throw trust in justice out the window, when not acting measure for measure.

Many vectors have converged in the US to rend social trust over the past several years, but perhaps the most critical is that which runs through the legal system. The courts, in the US political system, are the venues in which the final determination of right and wrong is decided. Judges must be trusted to be dispassionate and yet merciful. They must be trusted to dispense justice equally and without prejudice to every person who enters the court. They must be trusted to not have an agenda, that is, to not be swayed by personal interests.

One justice for all, measure for measure. How do you think the system is measuring up?

Thanks for reading,

1. Les Misérables, Victor Hugo, tells the story of a poor man, Jean Valjean, whose life takes a tragic trajectory after he’s arrested for stealing a loaf of bread from a bakery to feed his sister’s children.

2. Justice Potter was talking about pornography.

3. I’m not qualified to write about how modern-day or Elizabethan law handles intent. I’m writing only about what the play has to say about intent, and how lay people think about intention and culpability.