Prof Jane Jarman, NLS-https://www.ntu.ac.uk/staff-profiles/law/jane-jarman
On holiday recently, I found myself pondering a question. If I could go back in time, where would I go? Well, if I could carb up sufficiently for such a trip, my answer would be London, specifically Southwark, in 1592.
So why Southwark in 1592? To play a hunch about the nature of literature and law, and to meet a particular lawyer well acquainted with both.
In 1592, it would have been possible to walk into a Southwark bar and meet Kit Marlowe, Will Shakespeare, and John Donne, possibly in the same place at the same time. For me, the ultimate holiday destination.
By 1592, Donne was a law student at Lincoln’s Inn. To say Donne was “lively” at this stage is an understatement. Although he did not publish his poetry, he did share his verses with friends, a bit like an Elizabethan WhatsApp group for law students. Enough said. He was yet to become the more cerebral Dr John Donne, Dean of St Paul’s. Shakespeare was certainly treading the boards as an actor and playwright by 1592, with The Taming of the Shrew on the playbills. Kit Marlowe was a celebrated playwright, poet and, allegedly, a government spy. His play, Dr Faustus, the story of a conceited and bored academic who sells his eternal soul to the devil via an agent, Mephistopheles, in exchange for 24 years of earthly pleasure, was Elizabethan box office when it was first performed in 1588.
Good times. Certainly, the night out of your life!
I have always thought it important to understand literature in context. Other views are available. Some argue that “the text’s the thing” (to mangle a bit of Shakespeare) and transcends context. However, it is undeniable that for Shakespeare, Donne, and Marlowe (especially Marlowe, murdered in a brawl in Deptford), Elizabethan England was a vibrant but brutish place. Public executions counted as entertainment, drawing vast crowds. Law was often capricious and swift. Damnation was a real and present danger. Witches were denounced. Sorcery, and the likes of Dr John Dee, the mathematician and, allegedly, occultist, treated with suspicion and fear.
This brings me back to Dr Faustus and, specifically, the original pact with Mephistopheles. What if I could persuade that clever law student, John Donne, to appear in the defence of Dr John Faustus?
Whilst Donne was the only one of the three to have studied law on a formal basis, Marlowe and Shakespeare had more than a working knowledge of the subject. Legal terminology drips from their work. Donne was undoubtably a good lawyer, especially in the construction of a compelling argument, as his poetry seeks to box the reader in (or, more likely, the recipient). As for Marlowe’s skills as a playwright, the evidence speaks for itself. Elizabethan superstar! Whilst there is no evidence that Donne attended a performance of Dr Faustus, I am not sure how he could have avoided it.
So, let us assume that Donne did happen to wander along to a performance of Dr Faustus. What would he have noticed, as a student of Lincoln’s Inn, about the original “Faustian pact.” Although contract law was not the creature we know today, our current preoccupations would not have been unfamiliar to Donne. To paraphrase Amy Winehouse, could Donne provide the opportunity to “get a good lawyer” to argue the case for Faustus?
The Case for the Defence
There are two points that Marlowe loaded into the play which would have been obvious to Donne the law student: a flawed draft compounded by an inept interpretation of it. Interpreting Marlowe’s text is like juggling jelly at times, but he is writing in the 1580s and damnation was real. Faustus is a figure of fun as he “surfeits upon cursed necromancy” and makes “a hellish fall.”
The Flawed Draft
Firstly, the contract drafted by Faustus is, to use a technical term, all over the place.
Faustus is bored and alone in his study. The devil makes work for idle hands and, in this case, literally. Faustus is the author of the Deed of Gift and just drafts it freehand. How hard could it be, given that law is merely a “mercenary drudge.”
We are told that a Deed of Gift is required because “for that security craves great Lucifer.” Really? Who knew that Lucifer was so exacting as to contractual niceties. The Deed is, essentially, a contract for services, at least as far as Faustus is concerned, as expects some kind of performance and recompense.
Faustus makes several naïve mistakes in his draft borne, no doubt, from self-conceit. Even before he picks up a quill he is in error. Faustus thinks he has conjured Mephistopheles out of the ether. However, Mephistopheles is little more than a roaming commercial agent with a demonic retainer, lurking around for souls.
Firstly, Faustus drafts a Deed of Gift, mistakenly, and then tries to retrofit conditions to the draft. When he writes, “But yet conditionally that thou perform/All articles prescribed between us both” at best there is a vague condition without any statement as to the consequences of the breach of the term and makes no provision for enforcement.
Secondly, the draft is deficient in both warranties and exclusions, as well as a termination clause. If the contract assumes performance, what is to happen when the performance is deficient or non-existent.
Thirdly, the conditions, if they meet the definition, are breached throughout the contract. The most important condition, number three, “That Mephistopheles shall do for him and bring him whatsoever he desires” is breached almost immediately. Faustus asks questions that are left unanswered. His request for a wife is diverted. He is not visited by Helen of Troy, but devils imitating her. What starts as a high-minded pact to be “resolved of all ambiguity” ends with Faustus roaming around the Vatican as spirit, making slapstick mischief in Marlowe’s own version of “Carry on Faustus!”
Faustus may have dismissed law as being for “petty wits,” but the mechanics of the contract are lacking. Laughably so. This is what you get for being your own lawyer, Faustus. A point, I imagine, that would not have been lost on Donne.
The Distracted Interpretation
Donne the law student and, later, Donne the cleric, would have noticed the central problem that torments Faustus. He cannot repent. Yet Faustus has much to repent in the bad bargain.
The context of the contract, in terms of law and jurisdiction is governed, probably, by Lucifer and Hell. An interesting point on seizing jurisdiction. The overriding regulatory principle is that the pact is unlawful. Faustus knows that repentance will allow an exit from the unlawful contract. Repentance is the ultimate, and implied, termination clause. In any event, the conditions (such as they are) have been breached, repeatedly.
Even Lucifer and Mephistopheles doubt the enforceability of the bargain. Whenever Faustus comes close to repentance, they distract him (with a pageant of the Seven Deadly Sins) or threatened him and, subsequently, he any waives the breach. Indeed, he goes further and affirms the contract. His words, “with my blood I will confirm/My former vow” leave little room for doubt. All it takes a final intervention from Mephistopheles, dressed up legal vocabulary, “I arrest thy soul/For disobedience to my Sovereign Lord” and the deed is indeed done. Faustus is misled by a false narrative as to the enforceability of the contract. Shakespeare has the best line for this kind of folly in Sonnet 140, “mad slanders by mad ears believed me.” Faustus is tricked. Shakespeare got to the point of fake news some time ago.
A Fool’s Bargain
Faustus may well be a “forward wit” who seeks to “practice more than heavenly power permits” but finally, his failing is his despair. “I do repent; And yet I do despair.” He just cannot repent of the pact. Faustus is damned, in some respects, for keeping to the terms of a deficient and unenforceable contract. The draft is flawed, but his interpretation of the draft is if anything, much worse.
If Donne the law student would have been attuned to the legal mechanics, Dr Donne, Dean of St Pauls, would have been alive to the context in which Faustus is distracted by despair. Faustus is the author of his own damnation because he refuses to believe in a way out, either contractually or spiritually, and spurns the advice of others when they challenge his despair. Even the persuasive skills of Donne would have failed to silence the toll of the bell for Faustus.
I leave the last word to Shakespeare, from Measure for Measure, a play steeped in law and legal terminology, as I return from my trip to 1592. Faustus may well be an example of a “proud man,/Drest in a little brief authority/Most ignorant of what he’s most assur’d.”
Faustus is his own client. A proud man, ignorant and assured. His fatal flaw.
He should get a good lawyer!
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