Do you confess the bond?
—The Merchant of Venice (4.1.181)
As Austin insists, in the case of illocutionary acts, even though it may be only implicit in various grammatical forms, ‘The “I” who is doing the action does … come essentially into the picture’ (p. 61). So I might comparably say: In perlocutionary acts, the ‘you’ comes essentially into the picture. But how is this second person established? What does this difference amount to?
—Stanley Cavell1
In this essay I shall entertain the notion that performativity itself—let’s call it the sum of the conditions surrounding the efficacy of language and its acts—changes over time. My case will be drawn from Shakespeare’s imaginative reaction to the Protestant reformation of the sacraments of the medieval church, especially penance.2 If the sacraments perform and thus produce community, as the consensus among medievalists runs, then what happens when they are radically altered in the Reformation? How are social persons created and recognized?3 How is society achieved? Social contract theories, ages old and sometimes compatible with sacramental thought, sometimes distinct, offer one of the alternatives available to Reformation society.
Shakespeare concentrates our attention on contracts and social bonds with The Merchant of Venice, a play designed around a series of scenes of successful, interrupted, or failed contracts. These scenes ought, I think, to earn a place among the recurrent scenes and propositions that make up the canon of political philosophy. The play marshals a powerful critique of theories of social contract: in Shakespeare’s hands, social contract is a scene that pretends to justice but is deeply damaged by ideological interpellation, political disability, and the systematic exploitation of identity—a scene designed not so much to make others present, to acknowledge, to recognize, or to endow them with personhood, but too often to banish them, to injure their personhood, and to subject them to civil death.
In suggesting that we read the play as offering a series of versions of social contract, I want to say that the Reformation conversion of the sacraments is an important event in the history of social contract theory and in the history of performativity itself: important because the sacraments are crucial rituals of polity building for the ecclesiastical state; important because penitential theology and practices have a power to explain and produce interiority that can only be dreamed of by literary fiction in these centuries; important because much of economic and political thought about what glues human beings together into polities grows out of sacramental discourse and its constructions of intention, interests, and the passions. Histories of social contract (even by feminists like Carol Pateman4) tend to make it seem as if enlightenment accounts grow more or less out of the primordial ooze of antiquity, but late medieval and early modern English thought about the formation of society is powerful and influential for centuries. Here I am thinking of political thought as various as that of the chroniclers, of legal thinkers like Bracton and John of Salisbury, of writers of romances on the matter of Britain, of political pamphleteers like Fortescue and Milton. As a body of thought, though it is largely unrecognized as that, this discourse is very interested in marriage and economic trade as indices of civilization. These writers liberally mix canon law questions with topics and approaches from Portia’s civil law and English common and customary law. The canon law was preserved by the Reformation church courts, and legal historians have found a much greater than expected reception of the ancient Roman civil law in English jurisprudence, a fact perhaps unsurprising to audiences of The Merchant of Venice.5 In this play, Shakespeare revives romance topoi on political topics like consent, the conditions of vows, and social choice, and he combines them with explicitly jurisprudential discussions of intention, mercy, and entitlement, topics with a natural home in sacramental theology.
The vision of efficacious social contract I have in mind is staged by Shakespeare within a contest between Judaic and Christian styles of society.6 Yet this contrast serves in part as a screen for a historically more urgent contest between pre- and post-Reformation models of sin and forgiveness—between a Catholic rite of assessing the state of the soul to a more secular, juridical, and economic evaluation of a citizen’s well being sanctioned by strains within Protestantism.7 In The Merchant of Venice, Christian recognition aspires by means of propositions to a grace and mercy that ‘droppeth as the gentle rain from heaven’ (4.1.185), yet in its speech acts is a violent and sophistical stripping of rights, authority, property, legal capacity, and even identity from its victim. I speak, of course, of the trial scene in The Merchant of Venice, which ‘recognizes’ which is the merchant and which the Jew (4.1.170), and which manages to seem to preserve, in Antonio’s words, ‘the justice of the state, | Since that the trade and profit of the city | Consisteth of all nations’ (3.3.28). When Shylock is legally recognized as an alien conspirator, he is undone—brought to civil death. The contract is dissolved with his dissolution. And so we see something of the injuries produced by an apparently equitable social contract, its little light shining in the darkness that is Belmont’s apparently peaceable kingdom.
In the Duke’s courtroom, Portia raises many issues from penitential theology in her speech on mercy. But that isn’t in fact where the legal issues of the case lie—Portia’s judgment against Shylock does not depend on Christian transformations of Judaic law and its ‘new’ ideological framework of sin, repentance, and grace. She relies, rather, on a property law distinction between title and possession.8 Shylock is shown to have title to (ownership rights in) Antonio’s flesh but not to be able to seize it (possess and hold it) without criminal wrongdoing.
Portia’s rather gorgeous and much studied earlier speech on mercy (or against Judaism) has busied her admiring legal historians in lots of disquisitions on equity.9 The topic of equity has perhaps distracted scholars from noticing the very effective and familiar strategy she employs in the second half of the recognition scene, in which Shylock is discovered as a murderer.
The distinction between title and possession is of enormous importance in English common law, and though its application to Antonio’s flesh is rather bizarre, it isn’t the play’s only extension of the principle.10 The same distinction is applied sexually and structures the closing scene of the play and all the jokes about rings. Though the marriage vows are uttered, sexual possession is deferred by the strife between Antonio and Shylock. Portia takes title, as it were, to Bassanio—but not possession of him:
Earlier in the scene, marriage has been figured extravagantly by Portia as the creation of a commonwealth in the long similes and metaphors of her engaging vows. Speaking of herself, she says:
Putting herself in the self-sovereign role of a contracting agent voluntarily submitting to the dominus of a new commonwealth, she drives home the point that marriage is a social contract in the large (later, Hobbesian) sense. Bassanio, of course, responds in kind by styling Portia as a ‘beloved prince’ and himself as the people performing the acclamation that ratifies her sovereignty.
But the scene of contract is interrupted. With ‘come away!’ Portia suspends the marriage sacrament at a point that neatly draws the line between title and possession. The ancient custom that marital vows entitle spouses to claims upon each another but must be completed by sexual possession in order to perfect the sacrament was not entirely endorsed by ecclesiastical law (which, after all, could not happily make Jesus a bastard) but retained a very strong presence. Bassanio goes so far as to vow not to get in any bed at all before his return:
So the trial scene that tests economic contract is framed by the marriage contract, and the resolution of both performative acts takes the same intellectual form, the distinction between title and possession. Why?
Early sacramental literature on penance—from manuals to theological argument—is intensely structured by the lexicon of commercial contract, a theme partly drawn from Scripture and partly from medieval customary law. It takes the topic of vows as one of its most important concerns. Penance had its own legal jurisdiction, called the ‘interior’ forum, and the confessional was distinct (as now) from the ‘exterior’ forum of the ecclesiastical courts. It had its own set of legal practices, a single judge in the figure of the confessor, and no jury. The medieval sacrament had its own literatures and products—from indulgences to pilgrim badges to church furnishings—and was pervasively drawn upon by late medieval literature as a rich mode of thought, emotion, and habit that could support fiction about love, social justice, tragedy, sexuality, and death.11 Marriage too was a sacrament that employed commercial themes in the notion of the sexual ‘marriage debt’ that spouses owed one another. In The Merchant of Venice as well as in other plays, Shakespeare explores the conditions and the fate of performative, sacramental speech when its legal situation is stripped of its sphere of separateness and becomes public and entirely subject to the courts and the state church. He can explore these dangerous questions rather safely by setting them in Venice, on the edge of a vapidly homogeneous Christianity that, through its commerce, rubs up against other nations and races.
The fact, then, that pre-modern penance is much more commercial and jurisprudential than we now imagine surely contributed to Shakespeare’s mixing of a commercial contract, a courtroom, and grandiose speeches on the treatment of sin according to the Old Law and the New Law, Judaism and Christianity. Portia begins her courtroom examination by asking Antonio ‘do you confess the bond?’ and though he says ‘I do’ (4.1.181-2), like a groom or a bride, of course he vehemently repudiates a true bond to Shylock. The scene of the contract in Act I has already shown him nastily refusing to admit that making such a bond creates a kind of friendship. Yet economic trade (with or without usury) is treated as a primary creator of bonds among persons and thus a primary motive and source of human society in early economic writers from Aristotle to the scholastics to early modern English writers who habitually translate Aristotle’s key term as ‘friendship’.12 ‘Bond’ is certainly the most important word in The Merchant of Venice. Every scene revolves around some kind of bond-making, some performative rite of social contract. The bond for debt is pursued as a condition of and in analogy to the several bonds of marriage. Launcelot’s bond of service is another echo that acknowledges the role of class in binding society together. ‘Fast bind, fast bind,’ says Shylock (2.5.54). At the center of each bond is a ritual incorporating a pair of speech acts and requiring a confession of the bond and a recognition of newly created social persons: a husband and wife where there were none before, a set of friends where there were enemies, a new master and servant, and so forth. These occasions of contract bring society into being.
But contracts of these kinds tear apart the world as well as bind it together, and persons are unmade as well as created by new titles. Antonio is undone, Shylock suffers civil death, and less dramatically, when he gives Portia’s ring away, Bassanio loses his status almost as soon as the triumphant Jason has achieved it. Scenes of contract are scenes of recognition that lean forward. They create new persons and destroy others. They create new corporate institutions. They are perfect test cases for any of us who are, as I am, interested in developing a political speech act theory that seeks to describe the way that language, habits, and literary artifacts participate in the history of commonwealths, or interested in how the institutional arrangements of the state participate in the history of performativity.
J. L. Austin is brilliant in emphasizing institutions in How to Do Things with Words, his first account of performative speech.13 Performativity relies not merely on individual speakers, but on utterances and their social conditions in the largest sense. Because the formulae of utterances and their conditions change over time, performativity itself has a history that has not yet been written. What it means to stage the scene of the creation of society, the scene of social contract, changes in the course of the English Reformation as the sacraments and their speech acts are debated, reformed, and absorbed into other kinds of jurisdictions.
Austin’s How to Do Things with Words is very aware of itself as swimming against the stream of previous twentieth-century philosophers, who are interested above all in assessing propositions for their truth value. We are in a position to see Austin as a reviver of sorts, because sacramental theology is very interested in performativity and the peculiarities of trying to describe it. Questions of agency, of the status of words in performing actions, of the effects of emotion and intention, of impediments that lie in the persons who speak vows or in the form of their utterances—all these topics arise in profound ways as medieval and early modern theologians worry about the sacraments and their effects on individuals, on God, and on the ecclesiastical polity. Penitential literature itself is a hotbed of thought about intention and recognition. The sacrament of marriage was the proving ground for intricate and brilliant thought about the credentials and eligibility of the parties to enact the sacrament. What age and consanguinity permit consent? What constitutes illegitimate coercion? How important is parental consent? Can the parties be of disparate ages, races, classes?14
The other place in early thought where intentions, deeds, and consequences were delicately and extensively treated is in the law of commercial contract, also part of the canon law’s late medieval jurisdiction. There, a topic of exquisite description is how the (performative) written language of legal deeds carries a validity that must be carefully safeguarded. Yet legal discourse on commerce says virtually nothing about the eligibility of the contracting parties; it speaks eloquently only of the deed itself. What terms might invalidate a contract? What records are necessary? What is the role of custom in regulating the terms of a contract? The nature and status of oaths, vows, and promises constitute an important topic for marriage law and commercial law—and both bodies of thought draw on penitential discourse to understand the vow. It is the speech act of the vow that ties together all the instances of contract in The Merchant of Venice.
Performative language effects the creation of society that is the central topic of social contract theory, and what Shakespeare’s scenes show us is that this creation must be constantly renewed in the judgements of the courts, in the speeches of lovers, in the deals made in the marketplace. When social contract is viewed as this kind of palimpsest of the many sorts of speech acts and contracts taking place daily, then we are invited to think on the one hand about whether race should in fact be considered an impediment to economic contract (though commercial law acts as if its actors are entirely without race) and, on the other, whether a marriage should be evaluated for the economic equity of its terms (though marriage law acts as if there can be no inequity during the life of its contract). Penitential theology, with its refined command of intention, affect, sin, speech, grace, and performativity itself, presents us with a most important set of criteria for contract theory in all these areas. This is why the play interrupts the marriage in order to resolve the economic contract. We are asked to imagine the total speech situation, to use Austin’s terms, that we require for a felicitous marriage vow, and, by extension, what we might require for a felicitous social contract. What counts as felicity when contracts are motivated by racism and other kinds of systematic hatreds? Can such corrupt motives and intentions (here we are in the domain of penitential thought) enter into our sense of the justice of contract? Shakespeare is adding sets of conditions that make social contract theory a good deal more complex and disturbing than John Locke imagines it to be. Political theory needs an account of intentionality and emotion that has the richness of that in penitential theology. It needs an account of equitable terms that has the richness of that in the law of commerce. It needs an account of the eligibility of its agents that has the richness of that in marriage law. It may well be that the Reformation of the sacraments presents us with a momentous shift in performativity, a sea-change recorded in Shakespeare’s theater.
Yet all this is to make the play’s effects sound like a lot of propositions, which they are not. Shakespeare is entirely more interested in making us feel the disabilities to contract presented by gender and race (and the energies that can sometimes circumvent those disabilities) than he is in setting up a positive model of the constitution of society. The play unleashes nasty, unsavory, and delightful passions of various kinds and seems to enjoy the fallout. The most penetrating insight into the performative rituals of society is given to those characters with the most vulnerable legal incapacities. In this play people are wearied and demoralized by the friction between their bodies and the legal persons they occupy, and audiences are both harmed and fascinated by their often sadistic rehearsals and reinscriptions of the injuries caused by their incapacities. As if one could fully possess what one is entitled to without confessing it and then being recognized, Shylock says, ‘I’ll have no speaking, I will have my bond’ (3.3.17 Emphasis added). He wants to stop the speech acts of contract and to possess what jurisprudence and political philosophy have promised him. Because speech acts lie at the center of the constitution of society in the play, it’s worth acknowledging soberly that a lot of those speeches can be classed as hate speech. That’s the dark view of social contract: its scenes of recognition are dressed up as grace but so often produce civil death. The rituals of social contract may give some of us titles to satisfaction, to an Austinian (and even Jeffersonian) felicity, but cannot reliably give us possession of it.
