As we have said, the repression has fallen upon the unfortunate Claudio, and now he is displayed, in his chemise, on the public square (“why dost thou show me thus to th’world?”, 1.2.116); this was the first stage of the punishment for those who were guilty of extramarital sexual relations. (Only Juliet’s pregnan-cy spares her for the moment.) Angelo’s repressive polipregnan-cy is part of the classical
“culture of shame”that Michel Foucault speaks about, a culture that also ap-pealed to the crowd assembled at the foot of pillories, gallows and other execu-tion venues.⁸
However, questions remain about the effectiveness of this type of legislation.
On this point, the pimp Pompey does not tire of exercising his flair for mockery:
Mistress Overdone is worried about the order to close the brothels? She should take comfort! “Though you change your place you need not / change your trade”, 1.2.98–99). Escalus reminds him about the prohibition against prenuptial relations? Pompey retorts:“Does your worship mean to geld and spay all the / youth of the City? […] / Truly, sir, in my poor opinion, they will to it then”, 2.1.229–233).
This leads us to the central argument of the play: Was Angelo well advised– was he even authorized–to bring this repressive legislation out of relative ob-solescence?⁹This question is developed at length: no less than four characters set out the stakes using a network very rich in images and metaphors.
Thus, the Duke reveals some of his intentions to a friar who is sheltering him:
We have strict statutes and most biting laws, The needful bits and curbs to headstrong steeds, Which for this fourteen years we have let slip;
Even like an o’orgrown lion in a cave,
That goes not out to prey. Now, as fond fathers, Having bound up the threatening twigs of birch, Only to stick it in their children’sight
Michel Foucault,Surveiller et punir(Paris: Gallimard, 1975), 70.
On the question in general, see Harry Keushian,“Punishment Theory in the Renaissance: the Law and the Drama,”inShakespeare and the Law, eds. Gary Watt and Paul Raffield (Oxford: Hart publishing, 2008), 175ff.The author bases his analysis of the difference between strictness and fairness on the twofold nature of English jurisdictions: common law courts (stricter, fodder for tragedies) and jurisdictions of equity (more utilitarian, fodder for comedies).
For terror, not to use, in time the rod
Becomes more mock’d than fear’d; so our decrees, Dead to infliction, to themselves are dead, And liberty plucks justice by the nose. (1.3.24–29)
Finally, it is Angelo himself who states this penal philosophy in complete clarity:
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. (2.1.1–5)
We will soon see, in light of Michel van de Kerchove’s analysis, what“criminal paradigm”Angelo’s resolution belongs to. However, in order to gain a complete picture, we still have to identify two motivations that, while more discreet, none-theless help to explain his attitude. Indeed, the regent does not seem to be con-tent with re-affirming the law to ensure compliance with it after it has been vio-lated; his concern is also to prevent future crimes:
The law hath not been dead, though it hath slept Those many had not dar’d to do that evil If the first that did th’edict infringe Had answer’d for his deed. (2.2.115–118)
Likewise, the concern for a form of restorative justice with respect to victims is not foreign to him, at least on the rhetorical level (the scene places him in op-position to Isabella, who corners him):
[…] I pity those I do not know,
Which a dismiss’d offence would after gall […] (2.2.101–102)
Let us accept, following Angelo’s position, that it is necessary, for various rea-sons, to ensure the complete and entire strength of criminal law in general.
Yet, could we not – this is Isabella’s argument – make exceptions in certain cases in which there are duly substantiated reasons? Cannot in-principle penal rigor ever accommodate minor equity? Can we not “Condemn the fault and not the actor of it?”– Angelo sweeps the question away with the back of his hand:“Why, every fault’s condemn’d ere it be done[…]”(2.2.38).
Isabella then has to raise the stakes: the appeal to mercy and forgiveness:
“But you might do’t [pardon him], and do the world no wrong.”Too late, he has been condemned, replies the rigid Angelo–and so the beautiful novice re-fers, as a last resort, to the argument of divine justice: If the supreme judge
par-dons, He who knows all our failings, who are we to judge? (2.2).¹⁰ Angelo’s re-sponse it to take cover, once again, behind the law:“It is the law, not I condemn your brother.”
Isabella is not the only one, far from it, to try to calm Angelo’s repressive fer-vor. The Prevost himself, officer of justice, aware that“[a]ll sects, all ages, smack of this vice,”tries to avoid rushing into anything; while he delays and Angelo presses him to take action, he protests: “Lest I might be too rash; / Under your good correction, I have seen / When, after execution, judgment hath / Re-pented o’er his doom”(2.2.7–10). Without succumbing to unwelcome anachron-isms, we can think that arguments drawn from the procedural guarantees of due process of law are mainly what inspire the moderation of this professional of jus-tice. Moreover, Escalus, the wise advisor to the Duke, who has remained at his post in Angelo’s shadow, says nothing different: “Ay, but yet / Let us be keen, and rather cut a little / Than fall and bruise to death”(2.1.5–6).
Naturally, all of this prepares the way for the Duke to make his grand re-en-trance on stage, during the“last judgment”(the term is not inappropriate since the Duke’s justice is largely inspired by divine mercy) and his deluge of verdicts.
Angelo and Lucio, one in a serious mode, the other with a comical tone, will suffer comparable fates (5.1. 548–549): each one, after being forced to marry, will be condemned to capital punishment (in the case of Angelo:“We do condemn thee to the very block Where Claudio stooped to death”; in Lucio’s case: “The nuptial finish’d Let him be whipped and hanged”). Next, however, it will be the pardon and commutation of the sentences (in Angelo’s case:“I find an apt remission in myself”; in Lucio’s: “Thy slanders I forgive; and therewithal Remit thy other forfeits”).
Where does this“apt remission”come from? The Duke raises a corner of the veil, in which could very well be the final appraisal resulting from his experience as an observer-participant in the political life of his duchy:“I have seen corrup-tion boil and bubble / Til it o’errun the stew: laws for all faults, / But laws so countenanced that the strong statutes / Stand like the forfeits in a barber’s shop, / As much in mock as mark” (5.1.342–345). It is a valuable observation since it will escape no one that it rings in perfect counterpoint with the reasons justifying bringing the law back into effect. In the end, the Duke prefers sleeping law to law applied in a corrupt manner.
In fact, Isabella uses two other arguments during this confrontation. On one hand, she re-fers, not without finesse, to the argument of the arbitrariness of a condemnation that comes after two years of tolerance:“Who is it who has died for this offence? There’s many have com-mitted it.”On the other hand, and we will come back to this, she invites, prophetically, Angelo to put himself in the place of the man he is condemning:“If he had been as you, and you as he.”
Now let us return, in a more theoretical mode, to the central question: Are criminal laws made to be applied? Despite its apparently provocative nature, this question relays a concern that applies to law as a whole, as Dean Jean Car-bonnier subtly points out:“The mundane phrase that the legal norms are made to be applied, although it seems like a truism, is not a truth. Or at least not a universal truth.”¹¹ The author recalls the merits ofcomminatoryorders, that “un-certainty of efficiency”that makes possible an economy of penal means and very often suffices to ensure the effectiveness of the penal system.
In an important and often cited article,¹² Michel van de Kerchove approaches the question from the following angle: with regard to the different functions as-signed to punishment, what criminal model most easily accommodates purely selective application? Three models are considered. First, the axiological, retrib-utive model, in which a punitive or repressive philosophy clearly dominates.
Criminal law tends toward the protection of the social order itself and punishes attacks on goods that are considered essential. Legal vengeance is in question in this case, and sanctions are measured according to the seriousness of the of-fence. It is understandable that, of all the models, this is the one that has the most trouble accommodating partial ineffectiveness of penal law. Second, there is the preventive model, of utilitarian inspiration. In this case, the gaze turns from the past of the guilty action to the future, with a view to prevention in the broad sense (dissuasion, neutralization, rehabilitation). Application of the penal sanction is no longer considered a good in itself, but as an instrument in service to an external good: the prevention of the crime in the mind of the guilty party or any other potential offender. Only truly harmful forms of behaviour are established as offences and only truly dangerous individuals will have the pun-ishment applied to them. Criminal law is applied with flexibility and discretion, in the name of a superior principle of effectiveness. Lastly, a third model flows from the concern for a symbolic reaffirmation of a prohibition. In this case, what is sought is a symbolic reaffirmation of values protected by the norm, not in the mechanical sense of the paradigm of retribution, but rather with a socio-peda-gogical goal designed to inculcate, spread and reaffirm, on a symbolic level, the strong values that structure the collective consciousness. In this context, af-firmation of the law is considered more important than the associated punish-ment, and we can speak of partial decriminalization.
Jean Carbonnier,Flexible droit. Textes pour une sociologie du droit sans rigueur, (Paris: LGDJ, 1971), 101. [Our translation.]
Michel Van de Kerchove,“Les lois pénales sont-elles faites pour être appliquées?,”Journal des tribunaux,(1985): 239–334; Van de Kerchove,Sens et non-sens de la peine(Brussels: Presses de l’Université Saint-Louis, 2009).
What conclusions can be drawn from these observations for the analysis of Measure for Measure?Clearly, Angelo’s attitude is inspired by the axiological-re-tributive model, including the anonymous, automatic aspect of the sanction, which takes the equivalence of thelex talionisas its model. Crime must be pun-ished because it is crime, and the sanction is to be calculated in proportion to the seriousness of the offence. Angelo’s point of view is at once legalistic, literal and backward-looking; his eye is turned to the past and he sees no further than the letter of the text–for these two reasons, he will not gain the stature of states-man.
In contrast, the Duke is quite comfortable with the relative material ineffec-tiveness of criminal law. Can his behaviour be explained through the reference to a single model? It is probably wiser to explain it using reasons drawn from each of them, since it is true that in practice the various paradigms are applied in a cumulative manner.
Thus, the Duke certainly must share some of the procedural scruples ex-pressed by his lieutenants, the Prevost and Escalus (a self-restraint phenomenon with a view to the requirements of due process of law). As the statesman he is, he certainly does not seek a revengeful, mechanical application of criminal law. The way he applies it is instead flexible and discriminating, with a view to the future and with a general concern for prevention. Lastly, he is certainly more attached to the symbolic affirmation of the values underlying the prohibition than to its systematic application to offenders. We have seen that he is not stingy with par-dons and that he employs with perseverance all of the resources for differentiat-ing among punishment, sentencdifferentiat-ing and execution.
However, while he rather systematically evades penal prohibitions, he re-frains from repealing them as he would have the power to do. Even better, we have not forgotten that his partial withdrawal was explained in particular by the concern to assign to an inflexible regent the unpopular task of recalling the prohibition at a time when libertinism was spreading dangerously in his states. This proves the observation that the symbolic effectiveness of the norm cannot survive over the long term unless it is, at least from time to time, reacti-vated by truly being applied.