The State Bar Association of North Dakota Winter 2014 Gavel Magazine | Page 11

shakespeare’s elucidation on the
importance of Legal Process in Othello
Perhaps we should provide another
example of how Shakespeare can be used
to demonstrate important legal concepts,
including how the general application of
legal process will often avert a tragedy.
Many legal scholars have bemoaned the
fact that Iago, Othello’s “loyal” lieutenant, did not commit any crime but merely
played Othello “like a fiddle.” True, it
was Othello and Othello alone who killed
Desdemona, but he did so based on Iago’s
suggestions, his evil manipulations of the
facts, his use of bestial images, and insinuations that Othello had been cuckolded.
At trial Iago claims that he cannot be
held responsible: There is no proximate
cause. And Othello’s decision not to apply
the rule of law and bring the matter to a
court – or at the very least apply the basics of the legal process – is an intervening factor that assuages him of any guilt,
or at least any legal liability.
Readers often forget that Iago’s first
attempt to seek revenge on Othello was to
get Brabantio, Desdemona’s father, upset
with Othello and have them get into a
fight or duel. As they are about to come
to arms, Othello states his willingness to
submit to a legal process, and since the
Duke is holding court at the time, Othello
and Brabantio agree to submit the matter
to the Duke.
Brabantio asserts (see Brabantio v.
Othello – Act 1, Scene 3) that Othello
had taken his daughter “from his possession by force or fraud, a serious crime.”
Richard McAdams in Shakespeare and
the Law: A Conversation Among Disciplines and Professions 123 (Cormack, B.,
Nussbaum, M. & Strier, R, eds. Univ. of
Chicago Press 2013).
The Duke holds a trial, and Othello
claims he won Desdemona by love and
asks that she be called as a witness to
prove the matter. Desdemona testifies and
convinces her father and the Duke that
her love for Othello was won fairly, and
not by fraud, witchcraft, or potions.
You could almost say, all’s well that
ends well! But of course, new assertions
are put forth by the crafty Iago, and this
time Othello chooses not to apply the
same legal process as to Desdemona and

The Gavel Winter 2014

Cassio that had just been applied to him.
elements of Legal Process in act i,
scene 3:
So, what process was used in the first
“trial” On behalf of Othello?
1. Reliance on Legal Process Instead of
Private Violence – Decision made by
a Neutral and Independent DecisionMaker [The Duke]
2. Accuser Provides a Specific Claim
3. Decision Based on Evidence
4. Accused has an Opportunity to
Answer the Charges and Introduce His
Own Evidence
Id. 123-126. Desdemona is allowed to testify and provides the crucial evidence that
Othello had indeed won her over not by
witchcraft or potions, but by most proper
means. Brabantio drops his case against
Othello. “The result of this process is the
rightful exoneration of Othello, ending
Iago’s first plot against him.” Id. at 125.
The missing elements of Legal Process in
act V, scene 2:
Now let us observe what legal process
Othello provides to Desdemona.
1. Private Vengeance, Decided by the
Aggrieved, Othello
2. Cassio is never directly accused
– and Desdemona is Not provided
Specifics, just the Listing of the Crime,
Adultery
3. Othello Limits Evidence Received to
the Information provided by Iago
4. Othello refuses Desdemona’s request
to call Cassio as a Witness
Id. 125-126. Othello need not take the law
into his own hands: “Othello could have
pursued the legal charge of adultery in a
church court or, alternatively, could have
sought an informal resolution by soliciting an arbiter such as the Duke.” Instead
of providing proper legal process, “Othello sends Iago to kill the witness Cassio,
though Cassio has never once been confronted with the accusation for which he
and Desdemona are condemned. ...Thus,
despite being an interested party, Othello
has taken it upon himself to perform all
these functions: weigh the evidence, determine guilt, set the sentence, and carry
out the execution.” Id. 126.
McAdams succinctly extolls the impor-

tance of legal process: “The absence of law
causes the tragedy, because we have every
reason to believe that legal process would
have exposed Iago’s deception.” Id. 127.
Thus, lawyers can learn a lot from
Shakespeare, and enjoy reading the plays
at the same time!

Lynn Boughey practices law in Bismarck,
spends a fair amount of time in Montana,
and is the author of spy-novel Mission to
Chara and the forthcoming book, Harry
Potter and the Art of Spying (co-author
Peter Earnest of the International Spy
Museum). He is presently working on
a legal thriller, Murder at the Second
Constitutional Convention. When teaching as an adjunct professor, Mr. Boughey
used Shakespeare in his courses, includin