PORTIA: 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. (4.1.188-192) …
PORTIA: For as thou urgest justice, be assured
Thou shalt have justice more than thou desir’st. (4.1.312-313)
– William Shakespeare, The Merchant of Venice (1600)
Numerous scholars have used the character of Portia from Shakespeare’s The Merchant of Venice to illustrate the oppositional ethics that exist in moral reasoning dilemmas. Most famously, educational psychologist Carol Gilligan used the figure in her ground-breaking work, In a Different Voice, to argue that men tend to experience themselves as separately identified individuals, guided by logic, law, and rights (called the “ethic of justice”), while women experience themselves through connections and relationships to others as part of a broader web of concern (called the “ethic of care”).
Legal academics have followed Gilligan’s lead by regarding Portia’s performance in the play’s trial scene to be a spectacular act of feminist political transgression, arguing that the adversarial structure of legal system should shift away from the gendered masculine “ethic of justice” to rest on a new moral foundation, the gendered feminine “ethic of care.”
Whatever one thinks of Gilligan’s research, I think the legal argument that it inspired should lead us to ask: What are Portia’s actual methods in the trial scene, and what outcome does she bring about? On my reading of the play, I see Portia as less the feminist heroine than faux-feminist pariah, merely feigning support for the “ethic of care” before assimilating the “ethic of justice” in the most complete and cruel way by exacting merciless retribution on Shylock’s character through the use of formal, hierarchical, and inequitable means.
A sketch of the relevant theory should help to contextualize my critique. I think at least two strands of feminist criticism are salient to Portia’s character: neoliberal feminism and cultural feminism.
At a high level, neoliberal feminism holds to the basic ideals of liberalism: freedom of choice and formal equality of opportunity in the marketplace. Women must be free from sources of constraint so that they are permitted to live self-determining and productive lives as men do. But once these constraints are removed, neoliberal feminists believe that any more substantive equality objective to dismantle the gender hierarchies present at the structural level may fade away unnoticed, or at least be added to a long list of ancillary concerns in the liberal economy.
Cultural feminism, by contrast, is a strand of radical feminism which demands in its vision the upheaval of gendered power structures that obtain in law and life. The intention is to explore the nature of women’s unique perspectives, reconstructing and revalorizing experiences which have been suppressed and may have real and profound redemptive power. Cultural feminists believe that if lawyers reinstituted the “ethic of care” at the centre of their political organization, they may reform the legal system for the better and achieve substantive equality.
Against this critical backdrop, legal scholars persist in granting Portia’s character a sort of cultural feminist heroine status. One of the most cited articles in this tradition is Carrie Menkel-Meadow’s “Portia in a Different Voice: Speculations on a Women’s Lawyering Practice.” There, Menkel-Meadow argues that if lawyers followed Portia’s example in the trial scene and elevated the “ethic of care” as their moral foundation, this would moderate or dismantle the adversarial litigation system, challenge liberal conceptions of freedom of choice without constraint, and potentially move away from an individual rights-based framework altogether. But just what kind of example does Portia set?
The trial scene opens with the Duke presiding over a dispute about the enforceability of a bond, with Shylock alleging entitlement to Antonio’s “pound of flesh” after he failed to repay his debt. Shylock’s argument is straightforward. Contract law provides that Antonio’s flesh was the price that was paid for Shylock’s promise that was made. Shylock states, “[t]he pound of flesh which I demand of him / Is dearly bought. ‘Tis mine, and I will have it. / If you deny me, fie upon your law: / There is no force in the degrees of Venice. I stand for judgement” (4.1.98-102).
Throughout this scene, the nature of Shylock’s ethical appeal becomes clear: he stands for rights, for a conception of law without equity, for a sense of justice derived in the strict, textual construction of the contract, however barbaric its implications. For many cultural feminists, this makes Shylock the perfect referent for the “ethic of justice” in the legal system. And the Duke, also male, seems poised to accept Shylock’s appeal but for the appearance of Portia, calling herself “Balthasar” and wearing men’s robes because women have no legal appearance rights in Venice.
The trajectory of Portia’s positions in the litigation is critical, as she begins by pleading Antonio’s case in equity, not law, in her famous “mercy speech”: “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” (4.1.188-192). On account of this speech and little else, cultural feminists have embraced Portia as a referent for the “ethic of care” in the legal system. She is said to transform the war-like litigation process into a more humane, collaborative enterprise, as an enduring symbol of alternative justice rooted in hearts and not scepters, in the dissolution of man-made hierarchies before a beneficent, universalizing religious power.
I think this view is short-sighted. Portia’s rhetoric in the “mercy speech” should not be read independently of her subsequent conduct in the litigation, which succeeds only by pragmatically assimilating strategies associated with the “ethic of justice.”
At a literal level, the scene’s heroine is Portia appearing as “Balthasar,” Portia conforming to legal conventions without transforming the gender hierarchy inherent in them. This theme recurs. After she delivers the “mercy speech,” Shylock rebuts it by appealing to justice: “I crave the law, / The penalty and forfeit of my bond” (4.1.201-202). Portia then abandons equity and concedes Shylock his traditional ideology, echoing the arguments of historically male jurists for the independence and predictability of the common law: “There is no power in Venice / Can alter a decree established. / ‘Twill be recorded for a precedent, / And many an error by the same example / Will rush into the state” (4.1.213-217).
With these lines, Portia has fully transitioned to a gendered masculine posture and the cultural feminist fantasy ends. She demands to see the text of the bond and argues, in a spectacular reversal, for an even stricter reading of the rights it confers than what Shylock had offered: “The bond doth give thee here no jot of blood. / The words expressly are ‘a pound of flesh’” (4.1.301-302). Shylock asks, “Is that the law?” and Portia affirms in lines that have the overtones of a threat: “For as thou urgest justice, be assured / Thou shalt have justice more than thou desir’st” (4.1.309-313). Finally, Portia signals her punitive intention, sparring in an anti-Semitic rhyme, “Tarry, Jew. / The law hath yet another hold on you.” She explains that as a religious minority threatening a Venetian citizen, Shylock may lose his property and even his life at the Duke’s discretion (4.1.342-358). The Duke is persuaded by these arguments and allows Shylock to live only if he converts to Christianity.
Has care triumphed over justice here? I agree there is much to admire in Portia’s performance to the extent that it demonstrates the reiterative nature of traditional gender roles, but I believe this scene to be a neoliberal feminist fantasy, not a cultural feminist one. Whatever differences may exist between gendered “masculine” and “feminine” lawyering styles – and I would question the transgressive potential of that distinction in the first place – Portia relies on arguments based on abstract reasoning and language manipulation to deliver a draconian legal outcome marred by anti-Semitism and forced religious conversion. While it is commendable that Portia gains access to the legal profession that would otherwise exclude her, once there she assimilates its gendered norms and effectively reinscribes them. Portia speaks less “in a different voice” and more in the same, both the product and perpetrator of substantive inequality in the play.
If feminists are to reform the legal system, I suggest that we find a different spokesperson.
Daniel is the CBA Viscount Bennett Fellow at the University of Toronto Faculty of Law and an Adjunct Professor at Osgoode Hall Law School, York University. He writes and teaches about the legal process, gender and sexuality, access to justice, and equality law. His current research explores the use of alternative dispute resolution processes to address the problem of campus sexual violence in Canada.