Dispatches from Yap: Shakespeare on Law and DevelopmentPosted: March 7, 2012
Shakespeare on Law and Development
I moved to the island of Yap in Micronesia about a year ago to work as a law clerk for the state court. The job’s laid-back island setting affords me ample time to read and think about things that I would be too distracted or “busy”–most likely addressing the urgent task of evaluating some new bar’s Old Fashioned while helping my friends fail with women–to tackle if I were still in the City. When I first got here, the atmosphere and my background bred a fanatical appetite for “law and development” literature. The more I read, though, the more I found that much of it was hard to take too seriously.
Many academics have pointed out that there are problems with the “law and development” field. Brian Tamanaha, for example, has a hilariously combative paper (that draws partially on his own experiences as an attorney in Yap) arguing that the field is incoherent and self-interested, at best. He tastefully concludes the paper by asking the reader to “[t]hink about that.” Many others have made convincing arguments that the field achieves little or nothing in the way of results. I wouldn’t fully count myself a member of this camp, but I do have a few guarded reservations about the law and development concept as a result of my time on Yap.
My own reservations about the mountains of literature on law and development are grounded in the fact that the ideas actually worth considering are obvious, unremarkable, and ancient. Every ten years or so, some simplistic and attention-grabbing idea becomes an academic fad, and the sensible academics spend ten years making obvious, unremarkable, and ancient arguments to point out how simplistic and incomplete said fad is:
1) De Soto says we need to unlock the “Mystery of Capital” by allowing people in the slums to own property. Fanfare follows. Ronald Reagan praises him. An army of academics points out that nothing is that simple and he’s kind of wrong.
2) The monolithic LLSV author unit says that the common law leads to better economic development, thereby guaranteeing themselves tenure, if they don’t already have it. Academics point out that this is overly simplistic and not necessarily borne from the data, guaranteeing themselves tenure if they don’t already have it.
3) And so on.
To a certain extent, this is how the course of human knowledge progresses, but I wonder if the thesis, antithesis, synthesis process is excessive and cumbersome in this context. I wonder because most of the good ideas have already been thought of, and, to a large extent, there is as much art to the creation and application of law as there is science. It’s an unremarkable conclusion, I admit, and I apologize if I’m channeling a churlish relative who murmurs, “The more things change, the more things stay the same,” between swigs of Old Milwaukee at family gatherings.
Regardless, consider The Merchant of Venice, one of the things that I have had ample time (see above) to read while in Yap. For those of you unfamiliar with it, an arguably greedy Jewish banker named Shylock loans Antonio 3,000 ducats so he can afford to get lucky. If Antonio can’t pay it back, Shylock gets a pound of flesh from Antonio. Antonio can’t pay him back, and Shylock wants a pound of flesh from near his heart because Antonio hurt his feelings by course of personal insults and general anti-Semitism. Lamenting his fate, Antonio notes that the judge (the duke), can’t let him (Antonio) off the hook because…
The duke cannot deny the course of law:
For the commodity that strangers have
With us in Venice, if it be denied,
Will much impeach the justice of his state;
Since that the trade and profit of the city
Consisteth of all nations.
So far as I can tell, this passage placed in the context of the play has more to say about “law and development” than the tens of thousands of pages of dry, academic argument that leaves much unresolved. By way of Shylock, Shakespeare notes that law protecting contractual and property rights is important to the economic well-being of a place. (Sounds a lot like Lochner and De Soto to me). By extension, the welfare of a state’s citizens depends on a strong, healthy legal system ensuring the rule of law.
On the other hand, taken to an extreme, the creditors of the world would have too much power on account of their superior bargaining position and political clout. When Portia steps in as a (fake) lawyer to moderate the strictness of Venetian law, we see the economic advantages of common law adjudication played out in detail: the law serves not only to protect the contractual and property rights of merchants and creditors, but to facilitate the flow of capital by ensuring that wealth serves man, rather than vice versa. (I don’t know that the LLSV cadre has fully considered this argument, but, if they haven’t, I wouldn’t be surprised.) Shakespeare plays with the latter point as the action winds down with the characters’ banter about the significance of their golden wedding bands.
I could go on for pages, but, in the interest of brevity, I’ll finish by asking the reader which of the following passages is more valuable to the person who is not seeking tenure:
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God’s
When mercy seasons justice….
“…civil law is associated with a heavier hand of government ownership and regulation than common law. Many of these indicators of government ownership and regulation are associated with adverse impacts on markets, such as greater corruption, larger unofficial currency, and higher unemployment.” (LLSV, The Economic Consequences of Legal Origins)
 very Un-PC of Shakespeare.