Chevron and Shakespeare (4/4/20)

On my self-isolating walk today in the Charlottesville neighborhood (beautiful), I listened to a podcast interview of Emma Smith, the author of This is Shakepeare.  The book is here; and importantly, the interview is Emma Smith on "This Is Shakespeare" or “That’s Not My Meaning” (Folger Shakespeare Library Podcast), here (with audio and transcript).  (I highly recommend the Folger site and its podcasts.)

The discussion in this podcast was evocative of of the Chevron phenomenon in administrative law that scholars obsess about and, although not a scholar, I have written much about.  Remember that, in summary, Chevron teaches that, when the text being interpreted is not clear (OK, if its clear, maybe there is no interpretation but I think determining that a text is clear requires interpretation), then the reader (court in the case of Chevron) must apply one of the reasonable interpretations (one or more reasonable interpretations are required to make the text not clear).  Chevron is often described as a method to fill in the "gaps" of ambiguity of statutory text.

What’s that got to do with Shakespeare?

Emma Smith tells us that Shakespeare is notoriously unclear, or ambiguous, often has more than one reasonable interpretation, and that choosing among those reasonable interpretations allows us in ongoing generations to view Shakespeare creatively and relevant to our time. Here are excerpts (Barbara Bogaev is the interviewer):

BARBARA BOGAEV: Emma, your thesis that Shakespeare's broad appeal across cultures and centuries hangs on a concept with a wonderful, made up word—maybe not so made up—but you call it, "gap-i-ness". What is "gap-i-ness?" 

EMMA SMITH: Well, “gappiness” is just all this breathing space that there is in Shakespeare: all the things that we don't know, the space there is for our creativity. So, I'm trying to say these plays are really incomplete, and the thing that they need to complete them is us and our sort of inventiveness, our world, our experience. So those gaps are not a negative. In fact, they're a really enabling positive. 

* * * * 

Just on the most basic level we don't know what characters look like. We very rarely know how old characters are. There's lots of elements of plot that we are not fully given. Sometimes things are described to us, but they're not shown, so there's a question mark about how they should be interpreted. Lots of actions in Shakespeare's plays are not scripted or there aren't stage directions telling us. 

And there are also some sort of more historical gaps that I think inform the way Shakespeare writes; a gap between an older form of understanding the world and some new things that are coming in, and that sense of being astride two world views. That's particular to perhaps the end of the 16th century, but it's actually been a situation that we've often felt we're in and that is a code in later ages, too. 

BOGAEV: Well, you ran through some categories of gaps. Can you give us some specific gaps in specific plays? 

Cardozo, Dissents and Hamlet

I was reading this morning in a book addressing concepts of justice in Shakespeare’s major plays. Yoshino, Kenji , A Thousand Times More Fair: What Shakespeare's Plays Teach Us About Justice (2012), here. In the book, the  author, an NYU law  professor, explores concepts of justice in Shakespeare's major plays.  I thought that the end of the chapter on Hamlet might be helpful to law students, so I cut and paste it (the rest of this blog entry is the quote, with the quote from Cardozo indented):

In a 1931 essay titled “Law and Literature,” soon-to-be Supreme Court Justice Benjamin Cardozo explores both the importance of idealism and the importance of containing it. Cardozo observes that dissents tend to be more idealistic than majority opinions:

The voice of the majority may be that of force triumphant, content with the plaudits of the hour, and recking little of the morrow. The dissenter speaks to the future, and his voice is pitched to a key that will carry through the years. Read some of the great dissents, the opinion, for example of Judge Curtis in Dred Scott vs. Sandford, and feel after the cooling time of the better part of [a] century the glow and fire of a faith that was content to bide its hour. The prophet and the martyr do not see the hooting throng. Their eyes are fixed on the eternities.

Cardozo observes that dissents can afford to be more idealistic because they have no immediate force in the world. The dissenter, who has already lost, can express an ideal justice for “the eternities.”