Shakespeare’s phrases are everywhere. How often does a judicial tribunal ask: “When shall we three meet again?” Or lawyers remark that a custom appears to be “more honoured in the breach”?

A post-graduate research project at the University of Birmingham’s Shakespeare Institute focuses on instances where judges cite Shakespeare’s works. The project includes the construction of a database containing over 400 Shakespearean references from the English courts.

Literary allusion in judicial opinion is not new. The practice can be dated back at least as far as Edward Coke, Shakespeare’s contemporary and Lord Chief Justice to James I. In Case of the Swans [1558-1774] All ER Rep 641, Coke quoted the Roman poet, Martial. In his broad survey of literary quotation by the judiciary, Nial Osborough gives over 150 examples of references covering scripture, Virgil, Aesop, Homer, Milton, Tennyson and Dickens (see Literature, Judges and the Law, WN Osborough (2008) Four Courts Press). 


The Bard in the law reports

Shakespeare enters the English law reports with a rhetorical flourish in 1827. Considering the concept of madness and with sensibilities characteristic of the period, Nichol J asked: “What says the great poet of Nature and master of the passions upon the subject? What is one of the tests of madness that he suggests? Hamlet, being charged with ‘coinage of the brain,’ answers: ‘It is not madness That I have uttered; bring me to the test And I the matter will reword which madness cannot’.” (See Groom and Evans v Thomas and Thomas (1829) 162 ER 914.)

More recent examples of Shakespearean quotation include Lord Mance in his dissenting opinion in the British Indian Ocean Territory case (see R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] 4 All ER 1055). Following the expulsion of inhabitants from the Chagos archipelago, his Lordship chose to quote a substantial piece from Richard II (Act I, scene 3) relating to the banishment of Thomas Mowbray, Duke of Norfolk, exiled on royal whim, concluding:  “the Chagossians were entitled to say, like the Duke of Norfolk…‘A heavy sentence, my most sovereign liege, And all unlook’d for from your Highness’ mouth.’ To which in my opinion the Crown cannot here simply reply: ‘It boots thee not to be compassionate; After our sentence plaining comes too late’.”

A little later and in a case preceding his retirement, Lord Justice Keene cited the words of Sir Toby Belch (Twelfth Night Act 2, scene 3) in response to the imposition of a smoking ban at Rampton Hospital, noting the authorities’ reduction of personal pleasures for patients and asking: “‘Dost thou think, because thou art virtuous, there shall be no more cakes and ale?’” (See R (on the application of N) v Secretary of State for Health; R (on the application of E) v Nottinghamshire Healthcare NHS Trust (Equality and Human Rights Commission intervening) [2009] EWCA Civ 795 at [98].)

Lord Justice Ward has previously attracted press comment for a quotation from the poet Philip Larkin aimed at parents. In A M v A Local Authority; Re B-M (children) (care orders: risk) [2009] EWCA Civ 205 he used an allusion to Henry IV to criticise “honour killings”: “the time has surely come to re-think the phrase “honour killings”. It is one thing to mock the concept of honour – as, for example, Shakespeare does through Falstaff … It is quite another matter to distort the word “honour” to describe what is, in reality, sordid criminal behaviour.”

These explicit references framed by introductory remarks stand apart from the more commonplace phrases that are often mentioned without any thought of William Shakespeare as the source. However, these rhetorical devices serve a range of purposes and the Birmingham research project has developed a taxonomy that demonstrates four distinct uses.


Why is Shakespeare quoted?

Firstly, Shakespeare is occasionally used to assist with the definition of words such as “lineal”, “forefeit” and “reckless”. The context in which Shakespeare uses words supplements dictionary entries and helps date usage. Shakespeare’s works are produced as an authority to assist the courts with interpretation.

Secondly, there are direct quotations or “borrowed eloquence”. As in the examples above, substantive phrases or parts of speeches are deployed to capture the attention and illustrate a point in a way that contemporary prose may not. In addition to Lord Mance and Lord Justice Keene, exponents include Baroness Hale  and Lords Bingham, Hoffmann, Scott and Denning.

Lord Bingham used Hamlet’s most celebrated soliloquy to comment on the pervasiveness of the European Convention on Human Rights, saying: “The Convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from ‘The heartache and the thousand natural shocks that flesh is heir to.’” (See Brown v Stott [2001] 2 All ER 97.)

In Porter v Magill, Weeks v Magill [2001] UKHL 67, Lord Scott’s opening remarks (at [132]) noted that political corruption like “Like Viola’s ‘worm i’th bud” feeds upon democratic institutions from within” (Twelfth Night).

In White v Chief Constable of the South Yorkshire Police [1999] 1 All ER 1, considering the concepts of foreseeability and psychiatric injury, Lord Hoffmann noted, as the Doctor of Physic tells Macbeth: “therein the patient must minister to himself” (Macbeth Act 5, Scene 3). Psychiatric injury also prompted Lady Justice Hale in Sutherland v Hatton and other appeals [2002] EWCA Civ 76 at [23] to differentiate it from physical harm saying: “Because of the very nature of psychiatric disorder … it is bound to be harder to foresee than is physical injury. Shylock could not say of a mental disorder, ‘If you prick us, do we not bleed?’”

Perhaps one of the most vivid instances of quotation is Lord Justice Waite’s observation in Thomas v Thomas [1995] 2 FLR 668 on judicial power, noting that: “it is excellent to have a giant’s strength but tyrannous to use it like a giant” (See Measure for Measure Act 2, scene 2).

In addition to “definition” and “borrowed eloquence”, the other two categories involve analogies to Shakespearean plot and comparisons to characters from the plays. For example, the absence of key witnesses often prompts a comparison to a case as being “Hamlet without the prince”. Indeed, in one case Lord Denning noted that whilst the absence of three witnesses had “not produced a situation like ‘Hamlet’ without the Prince of Denmark” it had “at least deprived the production of some of the principal members of the supporting cast.” (See Breen v Amalgamated Engineering Union (now Amalgamated Engineering and Foundry Workers Union) [1971] 1 All ER 1148.)

A sophisticated variation occurred in Goose v Wilson Sandford & Co (a firm) [1999] All ER (D) 57 where Rimer J said that the absence of a particular witness from the trial “did not make it like Hamlet without the Prince so much as like Othello without Iago.” In terms of characters, the comparisons are not always to the great tragic heroes. In Alan Wibberley Building Ltd v Insley [1999] 2 All ER 897 at 898 Lord Hoffmann noted that disputes between neighbours could be pursued with the zeal of Fortinbras’s march against the Polack (see Hamlet). In R v Milk Marketing Board, ex p Austin (1983) The Times 21 March Forbes J compared the bureaucracy of the Milk Marketing Board to the “bumbledom” of Dogberry (Much Ado About Nothing).

John Curtis is an employed barrister with the Criminal Cases Review Commission. He self funds his studies for a part-time PhD at the Shakespeare Institute, Stratford-upon-Avon


A legacy

Shakespearean references in judgments illustrate points: they can sharpen logic, offer new perspectives and command attention. Irrespective of the law, individual minds can meet on the common ground of a shared literary heritage. As a practice, Shakespearean references can offer significant rhetorical gains. Of course, the technique is a rare exception rather than the norm, but its presence in the highest courts and its use by some of the most distinguished judges, in some of the most influential cases, suggests that it is not to be disavowed either. It is perhaps a reminder that judgments are literature in their own right, a means of communication with society and the judiciary’s legacy.