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Loi et théologie

Substitution for Substitution in Measure for Measure

Anton Schütz et Chantal Schütz


Mesure pour mesure, souvent envisagée comme celle des pièces de Shakespeare qui touche du plus près au problème du droit fait en réalité figurer l’ordre juridique en union intime avec la religion et le pouvoir: les trois forment en réalité un ordre normatif cohérent et puissant. Le pouvoir du juge y est présenté non pas selon le modèle connu aux juristes sous la dénomination de procès contradictoire, propre à la juridiction de la Common Law, mais selon le mode inquisitorial propre à la juridiction continentale. Avatar poétisé de l’identité juridique, la figure de la substitution est au cœur de la pièce : Angelo se substitue au Duc, Mariana à Isabella, la tête de Ragozine à celle de Claudio, le frère mendiant Ludovic au duc, le duc au frère Ludovic. L’application rigoureuse, immédiate et totale de la loi par Angelo se substitue à un certain relâchement sous le règne du Duc. Vu sous cet angle, l’Angelo de Shakespeare n’est-il pas également un substitut de Jean Duns Scot (1265-1308), autre frère mendiant, champion du pouvoir absolu et à la fois ordonné de Dieu, dans la théologie duquel les anges jouent un rôle si important, et dont la doctrine va rayonner sur l’Angleterre pour de longs siècles à venir ?

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  • 1  It should be notified that the term ‘bloody code’, here abducted from the context of its most comm (...)
  • 2  Both Legal Sociology and Legal Theory emphasize the growing distance and independence of the legal (...)

1The title Measure for Measure refers indistinctly to both of the great bloody codes of the tradition to the crude inaugural roughness of the Roman Law with its legendary origins in the law of the Twelve Tables, one of which commanded (or was understood as commanding), that creditors are invited to cut their measure of flesh from the body of the tardy debtor, and to the famously disparaged and persecuted callousness of the unredeemed Old Testament, with its doctrine of equal measure or ius talionis.1 The sense of a pristine lack of civility that oscillates between a simple notion of primeval uncouthness and an unnamed assumption – widely held in Shakespeare’s times, but no less in ours – of some original proto-sadism underlies both of these inaugural bloody codes, the pagan as well as the Jewish one. The full-blown ratification of what might be called the tradition of the abject or, alternatively, the tradition of the tradition’s ‘cursed part’ (Bataille), leaves little doubt that the stakes of Measure for Measure are not simply human passions like the pursuit of love or power simpliciter, but rather something more specialized and complicated, something more intimidating as well, both to the pleasure-seeking public and to the literary critic. This complicated and intimidating and, one might say with Bataille: cursed thing, is no other than law.2

On Law as a key to Measure for Measure

  • 3  On Sozialdisziplinierung see Oestreich, 329-347, where the term appears for the first time, and as (...)
  • 4   “Ens inquantum ens” (to be translated as : Being, according to the measure of its being), is Duns (...)
  • 5  See Dig, 50, 17, 202.

2In its repetitive wording and circular logic the title of the play gives an advance summary of the claustrophobic atmosphere that envelops Vienna, chosen by Shakespeare as the site of a sovereignly imposed real-life experiment in politico-legal Sozialdisziplinierung (social disciplining).3 Not only does the language of the title lock us up in a prison of tautology: the prison is narrow, it is a quantity that is meted out. In turn, the meting is not done with respect to something bigger, higher, more dignified than a measure (as in the case of a judicial decision that accords itself to a pre-existing statute); instead, the measure is meted out immanently, with reference only to another preceding measure. Referring to a measure measured, a quantity defined, at the yardstick of another measure or quantity, the title claims a long genealogy of immanentist thinking, that goes back all the way to the founding father of the revolution of medieval metaphysics, John Duns Scotus.4 One point here thus relates to a metaphysical legacy that passes incognito from the 14th to the 17th century. Another, conceptually more minor, but in terms of evolutionary effects, equally important aspect lies in the fact that the notion of a measure measured according to another measure offers what might be understood as a cunning definition of law well beyond what the untiring efforts of generations of lawyers and legal theorists and historians have ever come up with. The Roman jurisconsults, strongly attached to the independence of their trade, were perfectly aware of the issue of definition as being an issue of power; their maxim, omnis diffinitio in iure periculosa, (every definition in law is perilous),5 expresses this. Yet, the tautological equation between an earlier mensura mensurans and a later mensura mensurata which is offered by the title Measure for Measure, provides an accurate indication of what distinguishes legal exchanges.

  • 6  “Restitution of unjust enrichment”, the most general formula defining the action of private (not o (...)

3On the one hand, what is specifically legal is defined by its elective affinity to the tautological; instead of some higher yardstick for a lower measure, both are on the same level, and the differentiation is reduced to one between two measures of equal kind, rank, and name, one earlier and one later. Even in our days, all that private law offers is a come-back to an earlier state.6 But, on the other hand, there is at least as much to be said about the little three-letter-word that defines the relation to be established between the ‘measures’, the little polysemic preposition ‘for’ which conjoins and separates the two occurrences. It is this ‘for’ between ‘measure’ and ‘measure’ that maintains causal and final nexus in an undecidable equilibrium, and only thereby invests the entire measuring business with its – quite unmeasurable – social repercussions. In the following we shall first argue that Measure for Measure is about law, but secondly, that it uses law as an enabling device in order to deal with a range of matters that, in current language, would be to a large part located under other headings – those of government and, especially, of management. Let us first look at what ‘law’, which the play is supposed to be about, is not. There are at least four respects, in which Measure for Measure does not deal with law.

  • 7  A merely so-called invasion, from the view-point of the classical 17th century partisans of the En (...)

4In the first place, whatever is called legal in Measure for Measure is not the same thing as what is in Edward Coke, Matthew Hale, John Selden, the champions of classical common law doctrine, when they were writing their comments and treatises, at the same time or shortly after the play was first performed. The ‘common custom of the realm’, the ancient constitution which according to these proto-nationalist authors has been around in England since time immemorial – well before the Norman invasion,7 indeed before Roman law was around in Rome (!) – does precisely not extend to Vienna, and it is at least tempting to surmise that this extraterritorial character is largely what is at stake in the whole point of outsourcing the play to such an exotic place (See Pocock). Whatever the playwright might have had in mind in matters of law, the Common Law – though doubtless at a particularly important juncture of its gestation at the time the play was written – it is not, otherwise we would find a trace of it. “The first and most obvious pitfall consists in forgetting that the law of the play is ‘story-book law’ ”, as was pointed out, in 1982, by Margaret Scott. ‘Story-book law’ indeed, since the “drowsy and neglected act” (1.2.159) against fornication that Angelo revives against Claudio does not correspond to anything in existing common or statute law, it is “fictional law, the like of which has never been enacted in England” (Scott, 792).

5Secondly, the law of Measure for Measure is not Mosaic law, or Roman law, or continental medieval-canon law. First of all, punishment for fornication – as opposed to adultery – is absent from these legal orders. The issue as it was prominent in early modernity and as we still see it, sometimes, today – if perhaps only dimly, in the neon-light that results from the oscillation between shameful transgression and equally shameful repression that is a specialty of our times – was nowhere to be found in the Ancient world. It was of course conceptually, categorically absent from the Pentateuch as well as from Roman institutions. But it was equally absent from the Christianized Roman Law following the end of the Western Roman empire – that body of texts selected and reshaped by byzantine Emperor Justinian’s law-commission in the 6th century, then mysteriously discovered in Italy in the 11th century, which held sway in large parts of Europe from the 12th down to the end of the 19th century (and in a subterranean way, to us).

6There is, thirdly, and even more obviously, in Measure for Measure, no reference to feudal law, to the legal stratum that constitutes the medieval legal bond between lord and vassal. This is one of the key differences with the History plays. The latter are firmly grounded in the seigniorial bond, and Kingship figures as an earthly representation of God’s power and the law of God. The God of the History plays is not the sovereign legislator-God of the Spanish moral theologian and political philosopher Francisco Suárez (an exact contemporary of Shakespeare). The History plays are all about judging. The God of the History plays is an ultimate judge who guarantees the justice of justly judging Kings, and Power is understood as a power to judge, not as a power to manage, to govern, or to legislate. Accordingly, legal motives, as they appear here and there throughout the History plays, remain largely untinged by the presence of such innovating configurations as absolute rulership and legislative power. Not much remains from this feudal stage setting in the problem plays in general, and strictly nothing in Measure for Measure.

  • 8 King Henry VI, Part II, 4.2.86-7.

7There is, finally, no trace here of an autonomous zone of legal life, as it existed at the time at which Shakespeare finished the play. We find, in Measure for Measure, no trace of courts, inns, chambers, lawyers, or legal technicalities. Let us not forget the prominent presence of the legal sphere in the period, and especially at the time that gave rise to the play. Yet, let us abstain from ‘healing’ this incompleteness by adding to the piece the legal ingredients which a Middleton, a Jonson were adept at representing in their city comedies, which, at least as to their flipside, make a shrill and brief appearance in Henry VI, when Dick the butcher is seen haranguing the crowd to “kill all the lawyers”,8 but which are visibly ad significantly absent from Measure for Measure.

8To summarize, if the play is about law, we have to admit that it is, on the one hand, neither about Roman law nor about English law (the history of which presents the particularity of remaining unwritten, if we follow its greatest historian, Frederick W. Maitland) and that it is, on the other hand, neither about the faith-based law of brave mediaeval warrior-vassals and warrior-kings, nor about law in the sense of the socially differentiated legal-professional sphere that emerges in early modern England.

Measure for Measure, a forum for casuistry and conscience

  • 9  See Bernthal, Halper, Dunkel.
  • 10  A tendency commonly expressed – with entirely and even diametrically opposed conclusions – by the (...)

9All this notwithstanding, and the required safe distance from these tempting identifications being stipulated, there is not the slightest doubt that the legal or institutional side of social existence is among the core issues at stake in Measure for Measure. The best way of understanding the issue is doubtless to come back to the very convincing argument, already briefly referred to, presented by Scott. In contending that the law we encounter in Measure for Measure is merely ‘fictional’ or ‘story book’ law, Scott makes an important point against what might be termed misplaced historicization. The Duke-Angelo opposition is not a simple travesty that portrays, under changed names, the confrontation between James I’s theories of divine right and Parliament’s support of law based on custom or nature.9 Yet, at second sight, what becomes visible in the well-taken arguments Scott objects to the premature rapprochements of politics and theatre, is a strikingly particular conception of what the words ‘fictional’ or ‘story book law’ are supposed to stand in for. That which is fictional is presented as merely fictional – in the privative sense of ‘not a faithful representation of factual reality’; there is even a zest of diminishing intent in her expression ‘story book law’. All of this clearly deserves closer inspection. Why, we must ask, should the word ‘fictional’ be introduced with the word ‘merely’ – in a text, what is more, that is written by a literary critic and clearly directed to other literary critics? The least one will have to conclude is that, during the thirty years that have passed since her article, the silently carried positivistic conviction according to which fiction is, compared to fact, stigmatized by an inborn, natural and incurable inferiority, has given way to a range of more careful, less bipolar and less value-hierarchical conceptions – an evolution that in itself seems indebted to a tendency that should be understood as a re-definition of the relevance of pre-modern institutional sources, and one that has been taking place throughout the past thirty years.10 Of this genealogical turn, if this is the right expression to refer to the new campaign in which meaning has started to strike back against factuality, the notion that Adam is, in the Greek version of Genesis, called “the first fiction” (protoplastes) is probably the best example in our context. Even more fundamentally, one might ask why “story book law” should be any less respectable and in particular any less endowed withhistoricalrelevance than state-power suffused legal happenings such as the famous Star-chamber exchange of Edward Coke and James I in 1616? Nothing appears less certain than the legitimacy of thus projecting into the past the modern doctrine that law and state cannot be separated. There are excellent reasons to doubt that a Hans Kelsen, surely the most resolute partisan of the identity of State and Law, would have agreed with this historical version of his claim.

  • 11  This motive has been centre-staged in many studies by Peter Goodrich. See for instance Oedipus Lex(...)
  • 12  See Michaud-Quantin, Hurtubise, Selzner.
  • 13  As in a long legal-rhetorical tradition going back to Quintilian. See Schouler, 19-42.

10The Janus law11 has two faces: the backward-looking face that imposes the spectacular and sovereign presence of the power through which the social community achieves its own self-representation as an identity, and the forward-looking face that absorbs the newly evolved capillary control and disciplinary dispositions. Among the innovative genres that elucidate the features of this second face of the Janus law we find the literature inventoried under the collective name of Sums of the Confessors. Starting from the central Middle-Ages, these sums collect a vast memory of cases-of-conscience. These cases are reported or invented in order to provide professionally interested decision-makers in foro interno as well as, increasingly, individually interested sinners, with a casuistic, moral-theological legitimating supplement.12 In Puritanism, a revealing feature of moral militancy is the claim that every person is his own strictest judge. This vision gave rise to a non-forensic approach to casuistry, predicated on the notion of a spiritual imitatio Christi in the first person. The plots Shakespeare unrolls on the exotic problem-play premises of Venice or Vienna offer just this: a forum where a problem is prepared for problem-solving use, not unlike Quintilian’s examples for orators arguing in court,13 or, in our days, not unlike seminars in moral philosophy trying to solve the riddle of William Styron’s Sophie’s Choice by means of rational-choice arguments.

  • 14  See Thomas, 45-73.

11Another example is offered by the medieval history of legal education in matters of the forum externum. The proceeding here is twofold – quaestiones de facto, invented by the teacher, quaestiones ex facto emergentes which, from the 12th century onward, inventoried all those cases which the tribunals had effectively been dealing with.14 ‘Story book law’ indeed, to the extent to which it provides legal education with its subject matter, and thus stands in, simply and paradigmatically, for law. Scott’s point here is sound in spite of it all: case-law, whether factual or fictional-hypothetical-experimental, has but the name in common with official, resonant provisions and public declarations. Likewise, the only aspect that the in-depth discussion of the provisions of the Salic Law presented at the beginning of Henry V has in common with the ‘capital punishment for fornicators’ act which constitutes the most salient piece of legislation of the Vienna of Measure for Measure, is the – insuperably elastic – name of law.  

  • 15   On the anti-‘pagano-papist’ crusade, its origins and past and present flourishing, its role withi (...)

12If we want to locate Shakespeare’s legal problem in Measure for Measure, what we would have to say, as a first step, is that his discussion is not about law but about the law, not about a discipline of knowledge or a sphere of society, but about the structure that lends it its particular power, about that which makes the law. The law on the one hand, the modern legal subject and the proceedings of its subjection-to-the-law, on the other hand. Like that of a medal or a coin, which carries two separate images, the form of this problem is constituted by the legal subject and, on its other side, the legal order. Referring to each other, legal order and legal subjectivity, are present as the common back-bone of all institutional systems, indicating that what is shown in the play is the general condition of their procedere and mode of functioning. The play is not interested in offering an invitation to relish in the exposure of a dementedly backward draconian legal order as it could only happen far away. The play is written from the opposite end of the anti-Catholic militancy that will, eventually, give rise to the invective against pagano-papism.15 The unique core issue of Measure for Measure is institutional – and religious to that extent, yet besides any importance given to religion. It is the subjection of the subject to the law – the latter being understood as the imperative that institutes life.

The quest for the legal subject on the stage of the Problem play

  • 16  As an introduction into the man-shaping or anthropogenetic potential of modernity, see Seitter, fo (...)
  • 17  See note 3 supra.

13Like the Merchant of Venice or the Comedy of Errors, Measure for Measure is about what law, specifically positive law, valid law actually means. The Dukedom of Vienna is not backward; it is, quite to the contrary, if not postmodern (though, maybe, this as well), at least post-reformation – post-Catholic reformation, erroneously termed Counter-Reformation. We see front-staged the unspectacular yet powerfully ‘man-shaping’16 grasp over a population, which historians, through the past forty years, have consistently referred to under the term Sozialdisziplinierung.17 Shakespeare’s Vienna offers precisely this: a site where modern, sovereign, legislative, absolute power is already in charge, in the absence of political conflict, dynastic competition, institutional symbolization. The absence of Kingship extends to that of a crown – symbol of power, but also second-order symbol of the symbolization and thus domestication of factual or rough power. It heralds political modernity. This politically modern law is imposed by an absolute power-holder called Duke. If one looks up the word “Duke” in any dictionary, one finds that it is formed after the Latin word dux, defined as someone who leads his troops, a military man, a general. Unlike the divinely anointed office-holder King (related to English kin and German Kind), the self-entitled power-holder Duke is associated with exceptional, urgent, battle-like circumstances – adumbrating, decades ahead, the display of the overkill attributed to mortal God Leviathan but also, centuries ahead, the ever more fertile womb from which will arise leaders, Duces, Führer. For what is the movement that recognizes itself in the fasces of the Roman lictor other than a movement in favour of showing power’s ever-ready potential to clamp down on deviance?

14If, as we argue, the ultimate or perhaps only legal item which the play boils down to is – rather than evil or injustice, tyranny or usurpation – the legal subject, this would suggest that it can be understood as testing the conditions of legal subjectivity under the early modern and, already, modern conditions of state-monopoly of power and positive legality. Vienna is a European city-state in which a modern, positive, largely de-symbolized legal order has already started to rule, a distant ideal city. It is ideal not in the first sense of the word, that is not in the sense of faultless, but more modestly in the sense of Max Weber’s notion of ideal types, and even, slightly less anachronistically, in the sense of sites of ideal architecture in Renaissance Italy, like the city of Pienza, built by the humanist Pope Pius II. Shakespeare’s English curtain opens, not on the unforthcoming Kingdom of Denmark, but on Vienna the Duke-governed, Duke-managed, Duke-guided, the Führerstadt of Vienna. Vienna, here understood as a small but successful self-enclosed city-State – in view of its size one might perhaps rather speak of a village-State, or indeed, a hamlet-State. Autocratic duke Vincentio – “the winner”–  of Vienna, its absolute sovereign, is presented as an enlightened conducator, a counter-Ceausescu who would have succeeded in maintaining the bond of sympathy with the spirit of his age. Yet, though unquestionably a dictator, he is also a very cunning politician, aware of the need of occasionally sacrificing a close collaborator, and even of making this appear as a protective action in relation to the population and the common good and, simultaneously, as a pedagogical or re-socializing action in relation to the sacrificed younger protégé himself. In Vienna, even far more so than in Venice, flourishes a consolidated absolutism, its duke factually governs as he deems it best, owing no one an allegiance or a responsibility, while being officially in charge – as trustee, guardian, manager of his state and population. In addition, what flourishes under his dictatorial régime is a certain “rule of law”, to use a term suggested by the Victorian public lawyer Albert Venn Dicey in 1885. And indeed, Shakespeare’s Vienna appears as a faultless example of “habitual obedience”, to now quote John Austin (1832). At the core of the play we find, not at all sheer political arbitrariness, but formally (albeit apparently rather old) valid law.

  • 18 The Trial, last sentence of chapter 9, p.160.
  • 19   In Ostermeier’s rough, yet insightful staging, the already-deceased-pirate-with-a-Russian-name, R (...)
  • 20  See Leggatt.

15Apparently, thus, the law rules. This would fit with a long litany of praises we have heard, especially throughout the 80s, about the power of law, the force of law, etc. In fact, it is questionable whether the law ever rules – whether the law does anything more than institute the legal subject and react to transgressions. No, the law does not steer human behaviour, and Shakespeare’s awareness of this fact is expressed at every point of the play. The sore and neuralgic, but also the infinitely instructive and relevant point here, is Kafka’s point about law’s incurable inability to be up to its subjects’ expectations: “the court does not want anything from you. It receives you when you come and dismisses you when you go”,18 and the non-coincidence of life and institution, the interminable enjambment between bare life and legal status that follow from it. It is of this polarity that the omnipresence of substitution offers a lively symptom. Substitution underlies, as we have seen, the lex talionis as a general method of dealing with violent wrongdoing; but substitution is also inseparable from function, from persons standing in for other persons, bodies for other bodies. In Measure for Measure, we find Angelo substituting for Vincentio, Mariana for Isabella, Isabella for Claudio, while Claudio’s head is replaced by Ragozine’s.19 Even the characters double up as substitutes of their own selves: the blind and rigid application of the law substitutes for its abeyance under the Duke’s rule; the Duke who backs the law by his sovereign sanctions in foro externo, is substituted by a friar, who wields the power to give absolution in foro interno; corruption-chastiser Angelo is substituted by Angelo the corrupter; the modest Isabella, by a public accuser loudly claiming that she has given herself to Angelo.20

16Most writing on Shakespeare and the law uses legal historical scholarship to elucidate Shakespeare’s narratives. In order to write play P, Shakespeare could have – or must have – heard of case C. In one sense, historicizing is a critical technique which can barely go wrong. And yet, there is an important difference not to be overlooked. The writer of the History plays, working as a dramatizer of chronicles and re-enacting on the theatre stage the narrative of what happened to the Crown, is quite correctly termed with the epitheton of a bard. This is hardly the case of the writer of Measure for Measure. The writer of problem plays is eminently not a ‘bard’. The Homeric paradigm is inapplicable as soon as the fictionality of the story is part of its substance. This of course does not make Measure for Measure escape history: rather, the problem could be that of locating the relevant historical context (as opposed, we might say, to the context of a symbolically pre-unified oneness).

  • 21  At a wholly different level of historical ‘close-up’, we might identify a similar gesture in histo (...)

17The historicity of Measure for Measure has its core gesture in the fact of turning its back to the lofty level of Star Chamber reports, focusing instead, much less glamorously, on the manuals and vademecums of moral-theological casuistry.21 Once again, mind the gap between the two poles of Shakespeare’s work, bard and not-bard. On the one hand, the Histories and (to some extent) the tragedies, are replete with epic issues of power, truth, right, kingship, legitimacy, dignities, usurpations. Here belongs Ernst Kantorowicz’s reading of the deposition scene from Richard II as a chapter of the history of the English monarchy as well as the narrative of rise and defeat of the successive competitors for the crown (which, let us not forget, Shakespeare’s audience was still subject to – in other than merely theatrical terms). On the other hand, the problem plays generally present – and Measure for Measure more than others – an urban world without crown or other signs of power or lordship, a world constituted exclusively by individuals with no access to the sphere of uttermost intensity known as politics, a society of risks, of chances, of enhanced contingency. Venice and Vienna are speculative exempla for social being under the social conditions common to proto-modern absolutism and unfolded disciplining modernity.

18 The social world of Measure for Measure is no longer the one ruled by an overarching, creation-plus-redemption based legal political order under a crown-bearing, God-anointed ruler. Instead, stuff happens: ships are lost in storms, girls become pregnant, potentially corruptible hypocrites are transformed into effectively corrupted monsters, etc. There is Vincentio, but apart from this centred Archimedic personality, no integrity is to be found, no great deeds to be reported, nor are elevating or edifying stories of heroes to be told; whatever happens, happens anonymously, atomistically, accidentally, anarchically, and we look in vain, once again apart from Vincentio’s actions, for an example of a causality that would refer to a choosing will, a personal project, a commitment, an enterprise. Instead, events relate to each other in the way of so many successive accidents occasioning further accidents, in the mode known as condition sine qua non, or mostly as ‘collateral damage’, like in the real modern world. It is tempting to surmise that the very fact that the action is allocated to a continental city must have created, for the first public, a distance, and by recoil, for the author, a freedom that enabled him to present something that, in our eyes, looks much like a judicious, if subdued, theory of post-Reformation power and its relationship to the community. We will use the last part to outline some lineaments of this proto-modern or reformed conception.

Angelo’s angelological genealogy

  • 22  Not even the deified Roman emperor offers an unambiguous counter-exception to this rule. The ambig (...)
  • 23  See André de Muralt, L’unité de la philosophie politique: de Scot, Occam et Suarez au Libéralisme (...)

19 A duke holds unchallengeable absolute power over his city and designates a deputy, endowed with the same power for the time of his absence. The basic question to be asked here, yet which never comes to the fore as such in the play, cunningly concealed as it is from the start by the gripping events of Vincentio’s departure and Angelo’s appointment, is this: how can it be that Vincentio holds unchallenged, absolute power – clearly not for dynastic or election-related or other reasons that would go beyond the merely individual sphere, but in properly absolutist terms, that is to say, simply and straightforwardly ad personam? The answer is not simple. There is no shortage of toweringly vertical architectures of power placed in individual rulers’ hands at earlier moments of history. Yet, looking closely, one notices that more often than not, some legitimating construction, cosmological or dogmatic, justifies (or imposes) this power. The power of those ancient or medieval rulers is suspended upon a pre-existing structure. It is powerby law, that is to say, it is justnot that power over law, that unbounded or absolute power that the play lets us find in Vincentio’s hand. We look in vain through older history for a specimen of the species ‘absolute power’. We find powers which are charges, dignities, officia, mandates, imposed or entrusted upon its holder, who remains a faithful servant even when placed at the very top of a hierarchy.22 Everything looks as if absolute power, as embodied in Vincentio, had much more recent and, furthermore, not imperial but exclusively Western-Christian origins. To deliver birth certificates for modern achievements (or, on the contrary, modern plagues) is, though popular and widespread, also a rather reductive task for medieval scholarship. In our context, however, it is undeniable that a late 13th and 14th century theological theory of power first suggested a conception of power that was delivered from the fetters of pagan and legal compromisingness, and thus was first at introducing absoluteness within the range of what will be considered as legitimate power. This influential result was obtained, schematically speaking, by a procedure of conceptually narrowing-down divine Omnipotence, until it presented itself as the absoluteness (or absolute indifference) of divine action. There is of course something paradoxical in the claim that Vincentio’s modern power is, to some extent, an offspring of a theory of divine power devised by a branch of thinkers from John Duns Scot to William of Ockham, three centuries or more remote from the play, if one considers the fact that the genuinely mediaeval History plays are based upon materials that were not older than half a century (Raphael Holinshed’s 16th century chronicles) and related to happenings that took place no more than one or one and a half centuries earlier. We have to be satisfied that modernity is not a chronographic measure. The theological construction of potentia absoluta (or rather, the binomial construction that results of the dissociated “branches” of potentia absoluta and potentia ordinata )23 which, uncompromisingly modern in its design, radical in its claims, revolutionary in its consequences, will become the site of the epochal transfer of absolute power from God to man, is what underlies as their common stake the story of Vincentio and Angelo.

  • 24   See Monod.
  • 25  This concept of Learning play was developed by Bertolt Brecht in the twenties and thirties.

20The process through which God’s absolute power becomes man’s absolute power (the absolutist rulers’ power, to be precise) – a process which incidentally looks conspicuously like the Christian teaching about redemption, to the extent to which it seems to be a repetition, on the level of power, of the narrative of God become man in order to redeem his fallen creation – looms large in the history of politics in the West. In the 1970s, especially in Germany, it has been the subject of a number of discussions centering around the theme of secularisation.24 These discussions took place, it might be said, among philosophers going off at a theological tangent. This  explains why Measure for Measure, which happens to be the great Lehrstück (problem and learning-play)25 on the topic, has not been understood in its central lesson. Silhouetted behind a grappling drama of rigour and corruption, this play presents us with a subtle reflection about power and redemption and their proximity, or indeed identity. It can be read as a feed-back, as it were, from the long process of implementing the Western-Christian notion of the absolute since the final years of the 13th century. What is most striking in the play, which is marked by its political silence and its legal (substitution-centred) hyperactivity, is the fact that the wrestling of three strong-willed and cunning characters  it stages (Angelo, Isabella, Vincentio), seems to build an access-route to “political theology” that is incomparably more direct and uncompromising than that of the theorists. We see, not in discourse, but on stage, the power-house of the theological (trinitological) tension between creation and redemption in actu. And we see, not only political theology (theology in the service and function of politics) but theological politics as well.

  • 26  See Coccia, including further bibliography.

21There are other unapparent re-makes of theological issues. One example is the presence of the history of the Passion in the fate of the governess in Henry James’s Turn of the Screw. The lex artis which the novelist has imposed upon himself is to succeed in the venture to maintain the incognito of the character’s secret investment with the role of the Saviour until the end. Where James succeeds in keeping the secret by means of a careful technique of covering up, Shakespeare succeeds by bluntly giving it away. The person who carries his variation on the redemptive theme carries the name ‘Angelo’. The incognito is kept by means of divulging it – a conspicuous hallmark of virtuosity. But we may ask: What is an angel ?26 Why angels? And especially:  When do angels emerge, appear, make sense?

  • 27  See Agamben, TheReign and the Glory. In philosophical terms, the tension here is one that goes bac (...)
  • 28  In the verb ‘to cope’, which is, following the OED, formed after the French « coup », which in tur (...)
  • 29  ‘Management’, like ‘business’, is an old English word, and Liddell and Scott’s Greek Lexicon offer (...)

22Let us start with this third question and with the widely made and widely documented experience that issues of political power and its justification and legitimacy have recently been undergoing a severe loss of relevance. Decision-making over current affairs has been outsourced from the sphere of the genuinely political issues: this is what the omnipresent reference to crisis indicates. As a matter of definition, a crisis is something that is located out of the reach of existing powers. Crisis-management aims, rather than at the victory of any political goal whatsoever, at survival: the survival of existing institutions, businesses, processes. The political model of competing for best decisions and decision-makers has been replaced by the economic model of coping with emergent situations; a movement from polis to oikos or to depoliticization. 27 Since measures taken in the name of ‘crisis’ can, strictly speaking, never be normative, but nonetheless stand in dire need of compliance, we witness the emergence of normative pseudomorphisms. The trump-card in the hand of those governing in the name of crisis is indeed not power but powerlessness; their legitimacy is not based upon an underlying “yes we can”, but upon the strongly felt precariousness of any such optimism – ultimately on a “no, we cannot: we must, therefore you must”. The peril to be dealt with exceeds any mastery: ambitions are capped at coping.28 The resulting urgency-imposed measures can at best ape normativity. One might speak of ‘bare business’ or ‘bare management’, a derivative and powerless pseudo-despotism that stands in the name not of legitimacy and of a ‘rule of law’, but of a mere “rule of peril” and of the incompetent best that might be expected from those in charge of dealing with it. In historical terms, this perfectly corresponds – and here the historical study of institutional language is effectively helpful – to the oikonomos or manager, who never coincides with the master or owner of the house, the oikodespotes. He is only the slave, his master’s voice and deputy, acting out of his own privation rather than perfection of power, and thereby giving rise to a new overall situation, to a new – or perhaps, on the contrary, very old, pre-historical, at least in some of its features – chrono-ontological conception of power which takes it as a matter of time or more exactly, continuing or sharpening urgency. Foucault’s move from domination to governmentality anticipated this displacement – and needs today to be supplemented with managementality.29

  • 30  On these items, see Agamben, The Kingdom and the Glory.
  • 31  Coccia has assembled the essential texts on the matter.

23An oikonomos is a servant in charge of running his master’s house. His task is to watch over, “vaquer” – the strange French term explains itself at this point: the minister in charge of the oikos fills a vacuum, a space left empty by the absence of his lord. In the New Testament, the apostolic fathers, the oikonomos or manager of the household, here the administrator of the creation, is an Angel.30 And not only are Angels needed even after the redemption: the redemption in itself is an angelic act, according to the theological doctrine of Christ-as-an-Angel, Christus Angelus, a doctrine which today is rather unapparent but is of decisive importance in the tradition – and might well become again today.31

  • 32  See Mondzain, chapter one.

24The angel is a minister, a manager, a steward – what is common to all these terms is that they put the importance on an action defined as a continuous action of “saving” – both in the sense of defending/governing and assuring continuous survival of – the house or, respectively, the creation, an action accomplished both in spite of and in virtue of potential and mostly real crisis, of managing a business, of keeping a house. Measure for Measure takes the common starting point of all these stewardship constructions: the house is not kept or saved by its lord. A wealth of patristic texts speak of Jesus Christ precisely in terms of a manager: christos oikonomos, the infinitely responsible slave in charge of the sinful creation, who gives his life for his flock.32 But the economy of the saviour is only one part of the equation. The act of housekeeping, house-saving, is accomplished not by a ruler wisely exercising the rights that his crown or privilege endows upon him, but of a nobody-in-particular, a man, who – in Christ’s paradigmatic case – accepts to die, out of selfless love, the death of a slave, in order to save those he is in charge of. Coming back to Shakespeare after this digression in the regions of “political angelology”, we must first of all admit that giving-oneself-up-for-another’s sake is precisely what the vacancy-filling deputy-duke Angelo of Measure for Measure is not prepared to do. A steward and house-administrator on behalf of an older, more powerful and fatherly Other, Angelo administers the vacant Vienna in such a way that another person has to die, not himself. The story of Angelo, is the story of an angel who wished to outdo his angelomenos, a messenger who wanted to surpass his sender, it is a story of violence. Angelo first tries to outdo Vincentio by means of his militancy. The misguided and self-centred militancy is punished by a Luciferian fall into corruption.

25The Duke-ex-machina who saves his flock from this self-saving angelos antichristus, false saviour and false angel, is an absolute ruler, powerful if deprived of authority. We have insisted upon the fact that there is no crown or other pledge or ceremony epitomizing, personifying, symbolizing the Duke’s rootedness in a timeless world-order, manifesting that the grace and order of God are on his side. In addition, all we know about him we know only through gossip (i.e. truth, but of the sort that is a temptation for its subjects). Without being a creator, he wields absolute power, which embodies here almost only the community’s bare need to be governed. The ducal rulers in Vienna or Venice are absolute rulers in the sense in which the Franciscan theologians push the distinction between power ordinate (how God can be expected to behave, under the given conditions, if he is, as Holy Scripture tells us he is, an intrinsically good, wise, faithful God) and power absolute (how God might behave, without having to heed his creatures’ incompetent views of what is good or what is correct). The words: “I did not make any promises”, pronounced by Orson Welles’ Citizen Kane (1941), provide an enlightening snapshot of what a God wielding potentia absoluta dissociated from potentia ordinata would amount to. It is not a coincidence that in Duns Scotus’s teaching the importance taken by questions of the angels rises far beyond their usual theological standing. The name Angelo needs also to be considered in this context. Shakespeare’s Viennese Angelo effectively operates in two separate registers. According to the further developments of Scotus’s  theory of God’s double power, man lives up to his duty to God by choosing to obey his commandment whatever its content: if God commanded, by way of his absolute power, to hate and violate rather than love one’s neighbour, the obedient and deserving subject would hate and violate accordingly. When Angelo tells Isabella: “Who will believe you?”, it is this subjection – mutatis mutandis (i.e. replacing the theological obedience by the predicament of the girl in front of the ruler) – that he takes for granted.


26Several centuries separate the Scotist conception of God’s power from Shakespeare’s Duke’s neutralizing of Angelo’s action. By doing so, he also supplies a counter-model to the Franciscan decision-making and managerial God (impersonated by Angelo), both in his use of absolute power (which he uses, gloriously if shamelessly, to make Isabella a marriage offer that she cannot reject) and ordinate power. To the fallen Angelo, whom visibly he wishes to spare the re-make of the fallen angel sequel of the Lucifer-type, he is everything except indifferent. Vincentio saves Angelo from becoming a fallen angel. Everything, Vincentio seems to think, everything, but not that story once again! In this way, Measure for Measure is allowed to end as a tragicomedy. Is Vincentio not himself a hypothetical re-make of the creator, who, in need of a saviour for his world, discovers – fortunately in time! – that his plan was not going to work out. Which poses the question of what, in retrospect, we should make of his unambiguous pledges and promises in the beginning. Were these fake right from the start?

Mortality and mercy in Vienna
Live in thy tongue and heart, (1.1.44-5)
Your scope is as mine own,
So to enforce or qualify the laws
As to your soul seems good. (1.1.64-66)
[We have] [l]ent him our terror, dress’d him with our love,
And given his deputation all the organs
Of our own power (1.1.19-21).

27Did you indeed? Angelo would have some excellent objections here – had he not lost face.

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Agamben, Giorgio. Homo Sacer. II, 2, Il Regno e la Gloria: Per una genealogia teologica dell’economia e del governo.  Neri Pozza, 2007. (Le Règne et la gloire, traduit par Joël Gayraud et Martin Rueff, Paris: Seuil, 2008 ; The Kingdom and the Glory: For a Theological Genealogy of Economy and Government, translated by Lorenzo Chiesa (with Matteo Mandarini), Stanford University Press, 2011).  

Agamben, Giorgio. Homo sacer. III, Ce qui reste d’Auschwitz: l’archive et le témoin, traduit par Pierre Alfieri, Paris: Payot & Rivages, 1999.

Austin, John. The Province of Jurisprudence determined (1832), New York: Cambridge University Press, 1995.

Bataille, Georges. La part maudite, Paris, Editions de Minuit, 1949.

Bernthal, Craig A. “Staging Justice: James I and the Trial Scenes of Measure for Measure”, SEL: Studies in English Literature, 1500-1900, 1992 Spring; 32 (2): 247-69.

Birks, Peter. An Introduction to the Law of Restitution, Oxford: Clarendon, 1988.

Boarini, Serge (éd.). La casuistique classique: Genèse, forme, devenir, Sainte Etienne: Publications de l’Université de Saint-Etienne, 2009.

Breuer, Stefan. « Sozialdisziplinierung. Probleme und Problemverlagerungeneines Konzepts bei Max Weber, Gerhard Oestreich und Michel Foucault », in Christoph Sachße, Florian Tennstedt (eds.), Soziale Sicherheit und soziale Disziplinierung, 2nd edition, Frankfurt am Main: Suhrkamp,1995, 45-69.

Cacicedo, Albert. “’She is Fast My Wife’: Sex, Marriage, and Ducal Authority in Measure for Measure”,  Shakespeare Studies, 1995; 23: 187-209.

Coccia, Emmanuele, et Giorgio Agamben. Angeli. Ebraismo Cristianesimo Islam, Vicenza, Neri Pozza, 2009.

de Muralt, André. L’unité de la philosophie politique: de Scot, Occam et Suarez au Libéralisme contemporain, Paris: Vrin, 2002.

Dicey, Albert Venn.  An Introduction to the Study of the Law of the Constitution (1885), Indianapolis: Liberty Classics, 1982.

Dodd, William “Power and Performance: Measure for Measure in the Public Theater of 1604-1605”, Shakespeare Studies, 1996, 24: 211-40.

Dollimore, Jonathan. “Transgression and Surveillance in Measure for Measure,” in Political Shakespeare, Jonathan Dollimore & Alan Sinfield, eds., Ithaca: Cornell University Press, 1994.

Dunkel, Wilbur. “Law and Equity in Measure for Measure”, Shakespeare Quarterly, Vol. 13, No. 3 (Summer, 1962), pp. 275-285.

Foucault, Michel. Les mots et les choses ; Une archéologie des sciences humaines, Paris, Gallimard, coll. « Bibliothèque des sciences humaines », 1966.  

Griffiths-Osborne, Claire. “’The Terms for Common Justice’: Performing and Reforming Confession in Measure for Measure”,Shakespeare, 2009 Jan; 5 (1): 36-51.

Goodrich, Peter. Oedipus Lex: Psychoanalysis, History, Law, Berkeley: University of California Press, 1995.

Halper, Louise. “Measure For Measure: Law, Prerogative, Subversion”, Cardozo Studies in Law and Literature, Vol. 13, No. 2 (Fall 2001), pp. 221-264.

Hayne, Victoria. “Performing Social Practice: The Example of Measure for Measure”, Shakespeare Quarterly, Vol. 44, No. 1 (Spring, 1993), pp. 1-29.

 Honnefelder, Ludger. Ens inquantum ens: Der Begriff des Seienden als solchen als Gegenstand der Metaphysik nach der Lehre des Johannes Duns Scotus, Munster: Aschendorff, 1979.

Hurtubise, Pierre. La casuistique dans tous ses états. De Martin Azpilcueta à Alphonse de Liguori, Ottawa: Novalis, 2005.

 James, Henry. The Turn of the Screw: Authoritative Text, Contexts, Criticism, edited by Deborah Esch and Jonathan Warren, New York: W.W. Norton & Company 1999.

Kafka, Franz. The Trial, translated by Ritchie Robertson,  Oxford: OUP,  2009.

Leggatt, Alexander, “Substitution in Measure for Measure”, Shakespeare Quarterly,Vol. 39, No. 3 (Autumn, 1988), 342-359.

Levin, Richard A. “Duke Vincentio and Angelo: Would ’A Feather Turn the Scale’?”, SEL: Studies in English Literature, 1500-1900, 1982 Spring; 22 (2): 257-70.

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Scott, Margaret. “ ‘Our City’s Institutions’: Some Further Reflections on the Marriage Contracts in Measure for Measure”, ELH, Vol. 49, No. 4 (Winter, 1982), pp. 790-804.

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1  It should be notified that the term ‘bloody code’, here abducted from the context of its most common use in Legal History, usually refers to the English criminal law during a period that extends from the later 17th to the earlier 19th century, where up to over 200 different offences were threatened with capital punishment – most of them connected to the defense of property, e.g. larceny involving any value of or above 12 pence. The “Off with its head!” of Lewis Carroll’s Red Queen does not come from nowhere.

2  Both Legal Sociology and Legal Theory emphasize the growing distance and independence of the legal order from the “older” means of motivating subjection through discouragement via sanctions. The modern legal order’s core function is not to impose penalties upon the dwindling transgressing minority, but to allow the non-transgressing majority to maintain its expectations, we are told by Niklas Luhmann (Luhmann, 100). But, in spite of its quantitative retreat, coaction retains its older rights even today. No one will argue that the expectability of expectations can be maintained without entailing the discouragement of any cases of transgression or of any form of undesired behaviour.

3  On Sozialdisziplinierung see Oestreich, 329-347, where the term appears for the first time, and as a general appraisal, Breuer, 45-69.

4   “Ens inquantum ens” (to be translated as : Being, according to the measure of its being), is Duns’s formula. It is retained by standard interpretations of the doctor subtilis. See for instance Honnefelder. It is difficult to overlook the isomorphism between ens inquantum ens and measure for measure. It would be a mistake, however, to look for a textual link instead of common ways of problem-posing and problem-solving.

5  See Dig, 50, 17, 202.

6  “Restitution of unjust enrichment”, the most general formula defining the action of private (not only criminal!) law, is here an obvious case in point. See Birks.

7  A merely so-called invasion, from the view-point of the classical 17th century partisans of the English Common Law, who were eager to emphasize, on the contrary, the continuity, an organic unfolding in time at work in the unfolding of the Common Law as well as its Realm.

8 King Henry VI, Part II, 4.2.86-7.

9  See Bernthal, Halper, Dunkel.

10  A tendency commonly expressed – with entirely and even diametrically opposed conclusions – by the institutional genealogies offered by two on-going multi-volume publications, on the one hand, and coming from the legal side, Pierre Legendre’s numerous Leçons, on the other hand, constituting a coherent philosophical argument, Giorgio Agamben’s Homo Sacer series.

11  This motive has been centre-staged in many studies by Peter Goodrich. See for instance Oedipus Lex.

12  See Michaud-Quantin, Hurtubise, Selzner.

13  As in a long legal-rhetorical tradition going back to Quintilian. See Schouler, 19-42.

14  See Thomas, 45-73.

15   On the anti-‘pagano-papist’ crusade, its origins and past and present flourishing, its role within current protestant apologetics, see Smith.

16  As an introduction into the man-shaping or anthropogenetic potential of modernity, see Seitter, following Foucault.

17  See note 3 supra.

18 The Trial, last sentence of chapter 9, p.160.

19   In Ostermeier’s rough, yet insightful staging, the already-deceased-pirate-with-a-Russian-name, Ragozine, or rather his severed head, skilfully selected to substitute for Claudio’s, is in turn substituted with that of a massive pig. Appetizingly fresh from the slaughterhouse, the stately carcass dangles from the stage chandelier until, in act 4, its head is severed from the body on-stage with the help of a heavy duty electric saw, then put into an equally skilfully chosen half-translucent blueish plastic bag just untransparent enough to allow for all required interpretations, and remains in Angelo’s left hand until the (for him) bitterly embarrassing end. See Schütz, 294.

20  See Leggatt.

21  At a wholly different level of historical ‘close-up’, we might identify a similar gesture in historical writers like Foucault and Luhmann, when, abandoning the sovereign, official, middle-of-the-road sources to be found in the works of most of their colleagues, they will turn, instead, to third and fourth rank authors, used not as sources but as samples,

22  Not even the deified Roman emperor offers an unambiguous counter-exception to this rule. The ambiguity goes back to early 3rd century Roman jurisconsult Ulpian, the all-time champion of his trade, himself a close relation to Emperor Caracalla, who famously coined the rule “Princeps legibus solutus” (the Emperor is not bound by the law), Dig. 1,3,31 (in Justinian’s compilation), but also the proviso that follows it in many centuries of politico-legal literature like a shadow, Codex 1,14,4 : “Digna vox maiestate regnantis legibus alligatum se principem profiteri: adeo de auctoritate iuris nostra pendet auctoritas” (Its is worthy of a Prince to admit that he is himself bound by law, considering the extent to which our authority relies upon that of the laws).

23  See André de Muralt, L’unité de la philosophie politique: de Scot, Occam et Suarez au Libéralisme contemporain, Paris (Vrin) 2002.

24   See Monod.

25  This concept of Learning play was developed by Bertolt Brecht in the twenties and thirties.

26  See Coccia, including further bibliography.

27  See Agamben, TheReign and the Glory. In philosophical terms, the tension here is one that goes back to Antiquity – to the Athenian issue whether House (oikos) and State (polis) are distinct by the fact that houses are small and States large (Plato), or on the contrary by the fact that houses are governed as monarchies, while States are “ruled by several rulers”, that is, irrespective of their size (Aristotle). Aristotle’s view makes a humankind-compassing, de-politicized monarchical régime, a world-house perfectly thinkable.

28  In the verb ‘to cope’, which is, following the OED, formed after the French « coup », which in turn, appears as related to a Greek word for “blow” (kolaphos, much used in the NT) we thus locate, once again, a clear reference to a continuous passage à l’acte, power continuously used or spent as effective force.

29  ‘Management’, like ‘business’, is an old English word, and Liddell and Scott’s Greek Lexicon offer “management of a household or family” as first candidate in their long list of translations of the Greek word oikonomia – itself, from the 5th century onward, one of the essential categories of social life. Other suggested translations of oikonomia include “husbandry, thrift, household, direction, regulation, administration, principles of government, arrangement, proceedings, office, stewardship, plan, dispensation, public revenue, transaction, contract, operation, process”, and, “in bad sense, scheming”.

30  On these items, see Agamben, The Kingdom and the Glory.

31  Coccia has assembled the essential texts on the matter.

32  See Mondzain, chapter one.

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Anton Schütz

Dr Anton Schütz, a senior lecturer in law, holds a JD in law from the University of Vienna and a post-graduate degree in Social Anthropology from the Ecole des Hautes Etudes en Sciences Sociales (Paris). He has been a teacher of European legal and religious history at the Ecole Pratique des Hautes Etudes. He is a member of a research centre based at the Maison des Sciences de l’Homme (Paris). Dr Schütz joined Birkbeck Law School in 1994 after having been awarded a research fellowship at the Max Planck Institute for European History in Frankfurt am Main as well as a Jean Monnet Fellowship at the European University Institute in Florence. Dr Schütz publishes in the fields of Continental Philosophy, Jurisprudence, the History of religion and secularisation, and the evolution of scientific methodology.
Birkbeck College

Chantal Schütz

Maître de Conférences à l’École Polytechnique depuis 2001, Chantal Schütz est ancienne élève de l’École Normale Supérieure et agrégée d’anglais. Sa thèse, dirigée par François Laroque, est consacrée à A Mad World, my Masters de Thomas Middleton, et son édition bilingue de la pièce paraîtra prochainement aux éditions Garnier. Membre de l’équipe PRISMES (Université Paris 3-Sorbonne Nouvelle), elle est notamment webmestre du site TTT (Textes Théoriques sur la Traduction).  Trésorière de la Société Française Shakespeare depuis Mars 2012, elle est également soprano soliste de l’ensemble vocal et instrumental des Sorbonne Scholars.
École Polytechnique
Université Paris 3-Sorbonne Nouvelle

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