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Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at the NYU School of Law. Prior to moving to NYU, he was the inaugural Guido Calabresi Professor[…]

Its not an algorithm, says Yoshino.

What is justice?

Kenji Yoshino: Well it’s so complicated. I mean justice for me. . . One of the reasons I love Shakespeare is that justice . . . You know I could say back to you at that level of abstraction, well justice is about fundamental fairness. Justice is about equality among people who are similarly situated. Justice is about due process of law. But I think precisely why I’m driven to Shakespeare is because I don’t think the conversation really helps anybody at that level of generality. So you really need to think about particular stories, and particular case studies, and particular mythologies. And one of the regrets that I have about the otherwise wonderful nature of the . . . of American diversity is that . . . or heterogeneity means that we have very few common mythologies left to us. So what I’m trying to do in Shakespeare is to try and say in the same way that I would say to a law school class about a case, but I wanna make this more available to people who haven’t gone to law school and don’t wanna go to law school, you know let’s read . . . read the Merchant of Venice to me . . . with me together with Measure for Measure. And the Merchant of Venice is really about law that . . . a society that takes law too seriously . . . like takes a letter of the law too seriously. Which is to say Shylock says, “I want my pound of flesh.” You know and the court of Venice is open to all comers. It’s a cosmopolitan society. It’s a mercantile society. So it interprets that contract really strictly. And in fact this is in the play, which is to say, “Because this is a market open to all comers, people would lose faith in the law if we didn’t interpret all contracts really strictly.” And so therefore Shylock is entitled to Antonio’s pound of flesh. Now nobody wants to live in that society, right? On the other hand it can’t be that when Portia says, “Equality of mercy is _________ gentle rain from heaven upon the place beneath” – and she has this great encomium to mercy – that mercy is what it’s all about, and that all we need as an answer to this is to be merciful to each other. Because what real mercy would mean would really be something that would strike at the very heart of law, and that’s Measure for Measure. The duke at the beginning of Measure for Measure, just so people know since this is a less familiar play, he’s the Duke of Vienna. He has let the law fall into utter disrepair, so he just hasn’t enforced the law. And so lawlessness is sweeping the land, and my favorite line is, “A baby beats a nurse.” Like this is a world out of joint. You know hierarchy has been disrupted. And so he essentially leaves and leaves a really strict deputy in his place to enforce the law. But the deputy himself ends up violating a law, and then the duke comes in and restores order. But at the very end the duke like issues all the pardons to everybody who has broken the law all over again. So at the end of the play we’re no better off than we were at the beginning. So both The Merchant and Measure for Measure describe worlds to us in which neither of us would wanna live; that no one would wanna live in because, you know, The Merchant of Venice doesn’t have enough mercy. Measure for Measure has too much mercy and no law. So what is the answer to that? I don’t think that there’s any easy answer that says, you know, I’m gonna titrate, you know mercy and, you know, and the letter of the law in such a way that we’re gonna have the perfect balance. And it’s like a, you know, two to one ratio of letter of the law to mercy. Like that’s never gonna be the case. It’s gonna actually be on the ground and with context. But I think that looking at our common mythologies is gonna help us understand that. And the reason that we have these stories is so that we understand that just as Oliver Wendell Holmes once said, “The life of the law is not logic. It’s experience.” It’s experience of these stories. It’s a fine-grained, everyday, you know muddy, murky nature of life itself that we somehow have to make sense of. And the answer is not gonna be, well we should have a strict letter of the law; or we should have overflowing mercy; because neither of those is gonna end up a society in which we wanna live. But in trying to find that middle space, we’re not gonna be able to do that through any kind of scientific formula. It’s not an algorithm. It’s not algebra. We’re gonna actually have to talk about culture. And that’s what I’m trying to do in this book.


Recorded on: 11/11/07