Love on trial: nature, law, and same-sex marriage in the Court of Shakespeare.

• Author: Manderson, Desmond
• Position: Shakespeare as Law Moot Court project, case Attorney General of Canada v. Pears

Explanatory Note Judgments: Attorney General of Canada v. Pete Pears, Ben Britten and Others Manderson J. Macdonald J. Yachnin J. Explanatory Note

The McGill Shakespeare Moot Project is a radical interdisciplinary exercise now in its second year. As I have explained at greater length elsewhere, (1) the project pairs graduate students in English literature with law students. Their assignment is to prepare a factum on a contemporary and contentious legal problem and to argue it orally before a specially commissioned moot court comprising myself, my English partner in this endeavour, Professor Yachnin, and several guest judges.

What has made the project so radical in its approach to teaching and understanding questions of interpretation is this: the rules of procedure of our Court state that the sole "Codex, Digest, and Institutes" of the Court are to be treated as emanating from the complete works of William Shakespeare. So the questions our students have to think through are as follows: if Shakespeare were the law, what arguments on the basis of the plays would they make? What normative and legal position emerges from the best reading of the plays most relevant to this problem? What is Shakespeare's own understanding of law in relation to other social forces? Centrally, the students are asked to think about the natural disagreement that is likely to emerge--between different interpretations of passages and plays, between the principles espoused by different players in the dramas, and between different plays. The students are required to assist the court in determining how it ought to decide and to judge faced with these intrinsic choices.

Shakespeare, the whole of Shakespeare, and nothing but Shakespeare is to constitute our jurisprudence. This, of course, makes the project interdisciplinary in a very strong sense. It is not a question of the law of Shakespeare, an attempt to recreate in substance or style the relevant legal environment of the sixteenth century. (2) It is not a question of the law in Shakespeare, an exercise in determining the law as it appears to operate in those of the plays that have a legal component. (3) It is rather a question of Shakespeare as law. (4) We proceed upon the assumption that the whole of the corpus has acquired the status of binding statute: precisely the posture of "as if' that underscores every legal system in one way or another. (5)

If the task then seems somewhat strange, it thereby draws our attention to the same strangeness at the heart of other interpretative exercises--such as trying to decipher what Shakespeare means or trying to determine what a constitution mandates. Indeed, as one develops a new legal system one glimpses in the first place the importance of the very aspects of our own that are so fundamental to our thinking as to pass utterly without comment. The Anglo-American legal system, for example, structures the world in quite particular terms: public law, private law, family law, et cetera. If the Court of Shakespeare were simply to allocate plays, for example, according to these prefabricated divisions, then we would have done nothing but replicate that which already exists. We would have reinvented the same. (6) But the first and greatest power of taxonomy is that it conceives of the world a certain way and divides it along those lines and no other. This is the Court of Shakespeare's first order of business and it rightly insists on an authentic Shakespearean division: comedy, tragedy, history. One immediately thinks of Jorge Luis Borges' famous story of the Chinese encyclopedia, and of Foucault. The classification system by which "a certain Chinese emperor" divided the animal kingdom is now such a cliche as to bear no repetition. I refer the reader to anything written about Foucault in the past twenty years; or about Borges, or animals, or China for that matter. The classification to which the quote belongs is as polymorphous as the classification system to which it refers. Still, the point is important. Faced with the bizarre otherness of someone else's order of things, one is struck by "the limitation of our own, the stark impossibility of thinking that." (7)

Once past the initial strangeness of a new legal vocabulary, one is struck most by the sameness of the problems faced by legal systems. The essence of each and every law, like the essence of each and every literature, involves a problem: the passage of time. The aporia of time is the aporia of law. (8) All laws find their application at a time different from their initial promulgation: bluntly put, their applicability over time and to various persons is what makes them laws. That is the principle behind the prohibition of bills of attainder. (9) But to breathe life into these general pronouncements, these "laws", therefore requires us to take an imaginative leap that the original text cannot predict or prevent. Often enough the leap is so small as to pass unnoticed; sometimes even in the common law, it asks us to decide whether a decomposing snail, for example, is like or unlike a local council's fire fighters. (10) The more established and general the law, the more acute becomes the problem. It is true that in the law of Shakespeare, we are being asked to apply the works of a playright to a circumstance four centuries removed. But the constitutional courts of other countries face problems equally difficult if slightly less dramatic. The constitutions of the United States, Canada, and Australia make no mention of space travel, the Internet, or genetically modified organisms. This tells us nothing significant about how they are to be treated. The passage of time at the heart of law obliges us to be imaginative; it demands of us that we think about the ideas and purposes that underscore the specific (and therefore partial and imperfect) statements of the law.

The first case decided by the Court, In re Attorney General for Canada; ex parte Heinrich, (11) asked whether a World War II concentration camp guard ought to be brought to trial fifty years later. The Court was therefore asked to confront the jurisprudential problem of the extent to which obedience is a virtue or a necessity within a legal system, through the lens of Henry V and The Merchant of Venice. And it was asked to confront the literary problem of Shakespeare's own conception of individual responsibility in the face of governmental authority, through the lens of H.L.A. Hart and Lon Fuller. The yoking together of theory and practice in both directions proved an unusually illuminating experience for all concerned. Law gave to the literature the sharper edge of lives at stake; literature gave to the law the richer depth of worlds imagined.

This year's case was an even more topical question: same-sex marriage. The serendipitous recognition of the importance of this and related questions by the upcoming special issue of the McGill Law Journal, "Beyond Sexuality", (12) both evidences this topicality, if proof were needed, and provides the Court with a highly appropriate forum in which to present its findings. Drawing its impetus from the recent Halpern decision in Ontario, (13) in Attorney General of Canada v. Pete Pears, Ben Britten & Others the Court of Shakespeare was asked to consider the meaning and importance of marriage as an institution and to determine whether "the union of a man and a woman" was a necessary component of it.

It is at first glance paradoxical that in last year's problem the Attorney General refused to recognize this Court's jurisdiction, insisting that the Court of Shakespeare improperly usurped the legal supremacy of Canada. This year, the Attorney General has purportedly brought the action now before the Court, having lost in the Canadian courts his or her earlier attempt to preserve the orthodox definition of marriage. Perhaps under conditions of modern pluralism, such as pertain in the world today, this shift in strategy simply depicts a political response to the multiplication of normative orders. (14) Or perhaps under conditions of modern sovereignty, this simply describes governments as they are: pragmatic bodies with no particular commitment even to abide by their own rules, always prepared to select the structure that best suits their interests on any particular day. (15) But perhaps--just perhaps--the two are not unrelated, and the hollowness we detect in the latter amplifies the resonances of the former. In which case, we see here a tiny shard of a highly pertinent problem confronting the role and role of law in the current global political environment: our story mirrors in miniature one of the ways in which the modern state continues ironically to undermine its own legitimacy exactly as and by insisting on its own untrammeled power. (16)

Although a very different kind of problem, the present case starkly raised fundamental questions of interpretation that combine both substance and form. As a matter of form, how we are to interpret a fixed document, such as a constitution or a play, in rapidly changing social conditions, continues to trouble and provoke courts everywhere. As a matter of substance, how we are to interpret a settled institution, such as marriage or the law, in rapidly changing social conditions, likewise continues to trouble and provoke communities everywhere. Again, the singular strength of the Shakespeare Moot Project is that it allows us to understand these problems as related to each other, and furthermore, as natural and inevitably occurring interpretative challenges, rather than as anomalies to be ignored or eliminated.

Furthermore, the problem has once more brought sharply into focus several important questions in contemporary Shakespearean studies, including his conception of hetero and homosexuality in light of his undoubted respect for orthodox social forms. The Shakespearean canon strongly esteems both self-fulfillment in love and respect for community norms of...