Bernadette Meyler and Theaters of Pardoning

Bernadette Meyler and Theaters of Pardoning 1
Illustration by Mark Smith

In 17th-century England, when modern views about the pardon power took root, pardoning was also a common literary device.

In a new book, Theaters of Pardoning, Bernadette Meyler, JD ’03, the Carl and Sheila Spaeth Professor of Law and associate dean for research and intellectual life, uses the lens of Shakespeare and other writers of that long-ago era to address contemporary issues surrounding pardoning, amnesty, and political forgiveness.

“In my view, we have an ‘underexercise’ of mercy, both on the presidential level and on the part of governors,” Meyler says, pointing to high incarceration rates in the U.S. compared with the rest of the world. A contributing factor, she believes, is the centralization of pardoning in a single executive. In the evolution of that power, three centuries ago, from a monarchical function to a more legislative one, she sees a road map to transition to a more just and civil society.

Beyond how legal concepts are represented in literature, Meyler is interested in how literature has helped shape the law.  In early modern England, plays were often performed and read in a small world of legal elites.  Shakespeare was performed before the Inns of Court, the early modern law schools, as well as before royal audiences. Regular theaters attracted lawyers, judges, and jurors.

“In the context of the 17th century, the issue of pardoning becomes highly contested within dramas and plays, and the audience can bring those concepts back into the legal and political arena,” she says. The phenomenon is akin to the “CSI effect,” a belief among some prosecutors and law enforcement officials that jurors are reluctant to convict without the sort of forensic evidence they see on television.

In Theaters, Meyler traces the evolution of pardoning from Shakespeare’s Measure for Measure, where a series of final pardons interrupts the execution of various sentences, to Philip Massinger’s The Bondman, where rebellious slaves in ancient Syracuse are re-absorbed into a more humane society. Pardoning develops from a singular act of the king responding to threats of revenge against the crown to the tasking of legislative bodies with rehabilitating whole communities of political actors in the wake of revolt.

Meyler maps those depictions onto changes in English law in an era that is rife with upheaval and opportunities for forgiveness, such as the English Civil War and the enactment by the Restoration Parliament of the “Act of Oblivion” in 1660 as a kind of general amnesty, in which peace is restored and past conflicts forgotten.

“She is doing literary scholarship, historical scholarship, and legal scholarship in one great, beautiful, and powerful book,” says Julia Reinhard Lupton, professor of English and comparative literature at the University of California, Irvine, where Meyler earned a PhD in English in 2006 as a Mellon Fellow in Humanistic Studies.

Following her graduation from law school, Meyler clerked for Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit. She then joined the faculty of Cornell Law School, where she founded the nation’s first Law & Humanities Colloquium.

Meyler is co-editor of the Oxford Handbook of Law and Humanities, the first comprehensive reference book on the subject, which is being published in December.  In another book she is completing, she rethinks “originalism”—the idea that the meaning of the Constitution can be easily deduced from the founders’ words.

“Bernie is saying you do not understand language at the time by looking up a word in Blackstone’s contemporary treatise on English law or in the dictionary. You need to understand the discursive playing field in which a lot of people were using and debating ideas and the language,” says Amalia Kessler, the Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies and director of the Stanford Center for Law and History. “She is uncovering how in many of these core debates there wasn’t an original meaning but there were multiple meanings.”

As a graduate student, Meyler was absorbed in reading early plays and was struck by the number that ended with a remission of punishment—more than 45 tragicomedies, she counted, written between 1600 and 1660. At the same time, she was studying political theory, including how sovereigns exercised their power during emergencies. As part of her research on the pardoning power, she got access to the reconstructed library of Sir Edward Coke, the noted English jurist who saw the common law as a way to cabin the authority of the king. 

Meyler writes in the book’s introduction that the current president “recalls the sovereignty of early modern kings,” by asserting an “absolute power” to pardon— perhaps even himself. But Meyler believes that would violate a common law prohibition against “judging in one’s own case.” 

“While sovereigns in this book sometimes pardon treason,” Meyler writes, “they never pardon themselves.”

Rick Schmitt, an attorney and former staff writer for the Wall Street Journal and Los Angeles Times, is a freelance writer based in Washington, D.C.