The importance of precedents in Shylock’s judgment in Shakespeare’s "The Merchant of Venice"

Abstract

This paper sets out to show the importance of judicial precedents by examining Shakespeare's The Merchant of Venice, since the theory of binding precedents, originally known as stare decisis, has its origin in British law. It is intended to address, albeit briefly, the history of precedents in its birthplace, drawing a parallel between the British legal culture and the play, in a historical perspective. It will be noted that at the time the play was written by the playwright of Stratford-upon-Avon, there was already a judicial culture about precedents, as evidenced by the analysis of contemporary court decisions around the period in which the play was probably written. The specific focus is the excerpt of the famous trial for the execution of guarantee of the promissory note, which authorized the creditor to cut a pound off the debtor's flesh, when Portia, one of the characters, states: “Impossible; there is no power in Venice that can alter a sacramental decree. It would be recorded as a precedent, and many wrongful lawsuits, once given that example, would pour over the state. Impossible”. In medieval England, it is clear – and Shakespeare's work points out – the importance of judicial precedents, as well as their relevance in guiding the conduct of citizens in their relations outside the law. The speech suggests that a judicial decision generates protection of trust and legitimate expectation, not only for the parties to the concrete case, but for society as a whole.

Keywords

• Shakespeare
• "O mercador de Veneza"
• precedentes
• stare decisis
• common law