Introduction shakespeare and the Law of Genre

2.1.Making a Case for Comedy

In the type of conflict we are examining, the genres of tragedy and comedy enact in xacerbated form legal processes that cannot easily be dismissed. The point is that there is no tribunal which could settle their disputes properly as litigation due to the possibility of an exacerbated differend. Lyotard defines the différend as a matter of judgement where no tribunal could ever pretend to properly settle a dispute as though it were a matter for litigation. According to his formulation litigation becomes impossible as matters of judgement are continually arbitrating between two possible positions. Thus, the location of the specificity of this différend becomes a general question of the relationship of genres:

A différend requires the attempt of one genre (be it cognitive, performative, economic) to impose its hegemony on another genre (be it ethical or speculative), to enforce judgement of cases pertaining to one genre in terms of another.

In these terms, the best (because most testing) situation would clearly be that in which the claims of the subordinated genres are the hardest to overcome. Ultimately any defence of comedy is similarly a defence of propriety, for decorum, for property, for possession of knowledge, for control of desire. The challenge we face then, in mounting a defence for comedy is problematised by the emphasis of comedy and the comic on the discontinuity and the arbitrariness of the law itself, of both legal and literary legislations. This challenge is further complicated by the curious repetition and mimicry in the comedies of both the laws of comedy and the relationship between Comedy and the Law.

On the one hand, this means that comedy usually represents the dominant society or practices of its play as operating according to arbitrary laws, perhaps positioning the dominant order as the result of some fortuitous chance, rather than as a form of necessity. Take for example, the number of comedies that begin within not only a tyrannical milieu but, a social system as bewildering for the ordinary citizen as it is beneficial to the pretentious legislator, where unjust laws and confusing edicts are part and parcel of a dramatic existence. The judges and jurors who people citycomedy willingly seem to embark on a single course of action without fully knowing their destination, perhaps accepting as inevitable later collaborations, revisions, improvisations or afterthoughts; swept along by the excitement and entertainment the scandal of public trials afford. The petty solicitors or ‘tramplers of time’ are terrifyingly captured in enduring caricature, particularly in Middleton’s creation of Harry Dampit in A Trick to Catch the Old One who combines the role of lawyer and usurer. In ‘trampling’ the time or wasting time, the time that is always the client’s money, unscrupulous men like Dampit ‘trample’ the law in their desire to be rich and successful. There is a direct challenge to the sovereignty of the law through imitation by characters like Dampit and the entire role-call of “whoreson fogging rascals” (The Devil’s Law-Case, IV.i.24) who would practice legal chicanery for little more than their own self-aggrandisement. This prompts a recurring question throughout these comedies: are the representatives of the law beings of such moral stuff that they can safely administer the power of judicial law? And more crucially, the Law may specify the destination, but what then is its right to judge?

The impetuousness of the legislators in the comedies is mirrored by the oddness of the juridical in that the law has an essential relation to the accidental.

There is a peculiarity at work within the juridical in that it must take account of a kind of necessity of the accidental, not only in the form of the event, or the object of litigation which, in comedy tends towards the contingent or the opportunistic, but also in the form of the case, or the hearing of the case: where the unscrupulous can balance the truth on a knife-edge. This relation to the accidental can be elaborated in terms of an essential fictional or fictioning activity of the law in its constitutively impossible drive to predict the case, or the accidental origin of the case, which cannot be predicted as such. Furthermore, as Derrida puts it, the law must attempt to take itself as a case and fictionalise its own origin or institution, stating the law of the Law (as case) in the form of a narrative which constructs the illusion of absolute authority and wisdom.

The hypocrisy of a grand-narrative which recounts an absolute authority not based on fact lays bare the incentive comedy requires for mocking the tyranny of the Law. Judgmental laughter, or at least, the losing of oneself to laughter and the discombobulation of one’s ideologies in a single moment of comic revelation is a rare and wonderful thing. However, the task of adjudication, of fair and balanced judgement, invariably shares with purely critical laughter this enormous difficulty in arriving. Derrida reminds us of the inaccessibility of the law, of its need to be mediated, citing as the first sign of its inaccessibility its ability to defer interminably, to adjourn or delay judgement. In Derrida’s essay, ‘Before the Law’,116 this law of delay, becomes related to a question of time, of timing, with the man from the country enacting the legal subject’s discomfort at being left before the Law, or, out-with the Law. The law of delay becomes an experiment in comic timing, or rather tragic-comic timing, as Derrida’s work on Kafka’s fable joins problems of ‘antipredicative’ judgements to questions about the nature of ethics. The epistemological and deontological or temporal areas of the Law’s original premise are never affirmed to the man from the country, who delays or defers his own entry to the law of the city. The authority of the Law seems to exclude all historicity and empirical narrativity which positions its rationality as alien to all fiction and imagination. Derrida goes on to illustrate the dangers in the lack of imagination that prejudgement and prejudice possess, revealing the extent to which they are instrumental in both the construction and destruction of justice. Moral law, judicial law and natural law are all implicated, behind the façade of the ‘wise and necessary fiction’ of the Law, erected as it is to restrict and prohibit the very inhumanity of humanity. From cradle to grave the law prejudges the human species as an acrimonious animal in need of strict regulation just as ‘mankind’ prejudges the Law as ‘impenetrable’ or inaccessible. We are all therefore out-with the Law, in that we stand before its universality and generality as singular examples of potential law-breakers; otherwise there would be no need for the impenetrable edifice of the Law. This revision between the law and what is out-with the law, is reflected in the operation of comedy, where these energies are aesthetically negotiated. In this respect the formalist constraints of genre can be seen to flow into, by analogy, the larger concerns with the restraining powers of law as part of the process of regulating social behaviour. The formal concern in one sphere offers a thematic resource that comedy is able to take up because of its own generic implication in the business of the ‘law’.

The fear of death, the terror of the final judgement and the potential for torture - somehow beyond imagination - in some form of punishment, is what gives all law, both ecclesiastical and political its hold. The legislators of the comedies who mediate this process – the dukes, surrogate fathers, pimps and usurping tyrants- are banking n that fear. In comedies where indecision and stasis signal the deferral of little more

than cruel games of cat-and-mouse, this seemingly endless procrastination displays an acute insensitivity. As a result, for all the apparent sociability of the comic u-topia, an isolated, narcissistic individualism seems to prevail. In many Shakespearean comedies the relinquishing of individualism is a precondition of social harmony, but the uneasiness of this resolution is always underpinned by the apparent unwillingness of those requested to make that sacrifice. There is, therefore, always the possibility that n the incongruous world of the comic the wailing plaintiff, declaring itself as the victim of a crime may well become the victim of the Law, but then this all becomes a matter of presentation, of identifying an appropriate mode of representation.