Justice and Shakespeare

I’m thinking about William Shakespeare today - after all, it is his birthday. I realise that many fellow English-folk are more focused on a Third Century Roman Soldier from the Middle East who never visited our shores but, well - I’ll leave them to their chargrilled dragon vol-au-vents, or however they prefer to mark 23 April.

It is Shakespeare’s Richard II that comes to mind this year. The Donmar theatre put on an excellent production of the play late last year, and it was hard not to be struck by its relevance to changes being ushered in to our legal system.

As depicted in Shakespeare’s version, England feels in the throes of a legal paradigm shift. The monarch, who's febrile, sensitive, intelligent, vain and possessed of a truly awful sense of judgement, is more squeamish than his predecessors about trial by combat. Bit of a waste of knights, he reasons - though it had the benefit of being a bit of due process that his courtiers understood.

Faced with John O’Gaunt’s son Henry Bolingroke’s accusations of treason against the Duke of Norfolk, Richard turns mediator, trying to persuade the noblemen to stop throwing down and picking up gloves. They won’t play ball, but the informal mediation having failed, Richard changes tack, and calls off the usual dual at the last moment. He instead turns arbitrator - an arbitrary one at that - and banishes both men.

John O’Gaunt dies (following a surfeit of ‘This England’-ing), whereupon Richard seizes Bolingbroke’s inheritance to fund his pet foreign policy adventure (a war in Ireland).

Consensus among most of the nobility was that this tendency to trample on their rights and take their stuff with no provocation was a pretty disturbing development, so when Bolingbroke returned, most rallied to him. Mindful that seizing the crown is a step beyond getting his lands back, Bolingbroke wants Richard to sign his throne away. A good if skewed attention to legality, that. Richard is then murdered by a couple of Bolingbroke’s overzealous supporters.

So what’s the relevance of all this?

Well, at all stages the various actors are crying out for the rule of law to apply. Bolingbroke and Norfolk both seem traumatised when their established and transparent route of dispute resolution is removed.

Most of the characters are appalled by Richard’s decision to assert his authority over their rights, and aghast that their only come-back on his decisions as arbitrator is to either beg, or resort to violence.

Gaunt’s last lament, for an England that should be both more fair and at peace with itself, is the most eloquent expression of that longing. And the partial commitment to due process deployed by Bolingbroke offends - provoking treason by some.

As the Legal Aid, Sentencing and Punishment of Offenders bill draws closer to the statute book, it is worth reflecting that in Richard II, mediation fails in part because what is proposed relates in no part to the protagonists’ sense of justice. The arbitration owes everything to power, and nothing to the scrutiny of evidence.

The point is, as public policy responds to the assertion that a legal resolution is often not in people’s interests, and that informal resolution, including seeking to influence outcomes through using patronage, or simply begging, might be just as effective, it is not going too far to say that it is instructional to refer back to the English tipping point portrayed in the play.

Even powerful characters in Richard II lack the means to reliably assert their rights, and the aching gap that leaves for all concerned leads to a scenario where no one has a satisfactory outcome. In its absence, justice is craved all round.

Happy birthday.

Eduardo Reyes is Gazette features editor

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