Justice Gerald Lebovits
Tara Scown
With its complexities, confusions and corruptions, the law can be orchestrated to advantage or stage-managed to collapse. And its foibles can be exposed through parody.
Few have parodied our serpentine jurisprudential heritage better than the English librettist-composer duo of Sir William Schwenck Gilbert and Sir Arthur Seymour Sullivan. From the 1870s through today, Gilbert and Sullivan have delighted audiences with comic operas.
By highlighting human vice, they have not only entertained judges and lawyers. They have also taught judges and lawyers to avoid a surfeit of traps and tribulations.
Gilbert's fascination with the law came from his days as a mediocre British barrister. So abysmal were his forensic skills that one client hurled a boot at him in court.[1]
But his triumphant collaborations with Sullivan reveal profound insights into the dilemmas of law. Today, the legal industry is in a state of flux, with developments like generative artificial intelligence poised to disrupt the practice of law in ways not yet clear.
But as the 19th century works of Gilbert and Sullivan demonstrate, some legal principles are timeless and universal.
Bamboozled by Logic
In Gilbert and Sullivan's comic opera "The Pirates of Penzance," protagonist Frederic is to be apprenticed to a pilot. But due to a mistake by a hard-of-hearing nursemaid, he is apprenticed to a pirate — until his 21st birthday.[2]
When Frederic completes his servitude, the pirates tell him that because he was born on Feb. 29, the leap day, he is 5 years old, and his apprenticeship is far from over.
Did both parties intend, when drafting the contract, for Frederic to be bound to pirates for most of his life? No. The pirates' interpretation of the contract is unconscionable.
And are contracts with pirates void on policy grounds? They are. The pirates' argument is absurd and grounded in self-interest. Yet Frederic, bamboozled by its logic, is convinced he must remain in their dominion.
Most judges and attorneys would be less persuaded than Frederic was. Still, one can extrapolate a broader lesson. Fundamental legal values must supersede well-reasoned arguments.
Hubris vs. Understanding
Gilbert and Sullivan in another scene mock British military officials who are overconfident in their qualifications. In one famous song in the Gilbert and Sullivan canon, the major general rattles off his knowledge on esoteric topics, from the history of King Arthur to "cheerful facts about the square of the hypotenuse."[3]
His knowledge of military tactics is slight, but he refers to himself as "the very model of a modern Major-General."[4] Through intricate lyrics and a fast-paced, relentless tune, Gilbert and Sullivan imply that these officials know little about things practical, or about their work.
The lesson for judges and lawyers is that possessing prodigious knowledge will not compensate for lack of understanding, common sense, and a feel for justice. Facility with, say, advanced mathematics may be impressive.
Even so, it will not save practitioners bedeviled by civil procedure. The solution? Cease bragging, and upgrade your craft.
Conflating Two Pathways
The dialogue of "The Pirates of Penzance" also contains a pun about property law and inheritance.[5] At the opening of Act II, the major general is in his estate's chapel, overwhelmed with guilt for lying to escape from the pirates. He has come to the chapel to visit his ancestors and repent for disgracing them with his dishonesty.
Protagonist Frederic tries to comfort him. Frederic says that because the major general has just bought the estate, those buried in this chapel are not his ancestors. He need not worry that he has tarnished their reputations.
The major general replies: "I don't know whose ancestors they were, but I know whose ancestors they are."[6]
Librettist Gilbert observes that property can be secured by purchase or inheritance. One who buys property does not inherit it as well.
The lesson is that judges and lawyers ought not conflate two ways of producing the same result. Purchase leads to ownership, and inheritance does, too. But purchase and inheritance are not the same.
Another Gilbert and Sullivan comic opera featuring twisted dialectics is the highly regarded "H.M.S. Pinafore." Poor, lowly sailor Ralph Rackstraw wants to marry Josephine, the sea captain's daughter. But their marriage is prohibited; he is far below her in rank.
Fortunately for Ralph, he learns that he and the ship's captain were switched at birth. Ralph is really a captain — and thus may marry Josephine.
In a display of legal whack-a-mole, the problem is reversed: Ralph was originally forbidden to marry Josephine because of their difference in rank. Now, she is below him in status.
With a cast of characters who care about these details, this hardly seems to solve their predicament. And if we follow Gilbert and Sullivan's train of thought, Josephine may be Ralph's daughter, since she is the captain's daughter.[7]
The lesson for judges and lawyers is that in solving one problem, one must not create another.
Emotions Guiding Action
One of Gilbert and Sullivan's earliest collaborations, "Trial by Jury," focuses explicitly on the law. It takes place in a courtroom, where a judge is trying a case of breach of matrimonial promise, a cause of action that existed in England until 1970.[8]
In this work, sound argumentation is sidestepped altogether by a biased judge and jury and by a defendant who asserts ridiculous defenses. At the beginning of Act I, the jury immediately expresses prejudice, remarking to the defendant before hearing from him: "We're the jury. Dread our fury!"[9]
The defendant faces a predicament: If he does not marry the plaintiff, his former fiancee, he will be liable for breach of promise. But he now has a new love interest.
If he marries both his new sweetheart and the plaintiff, he will be charged with the crime of "burglaree"[10] and possibly imprisoned. He offers an affirmative defense:[11] His fiancee had become a "bore intense."[12]
In a turn of events, the judge resolves the case by marrying the jilted plaintiff, deciding he "can't sit up here all day."[13] He finds her "exquisite."[14]
Moreover, this way she will leave the trial with what she wants: a marriage. The lesson is that emotions should not guide actions in a court of law.
The judge oversteps every possible boundary with his behavior toward the plaintiff; the jury's attitude toward the defendant is unacceptable. Both judge and jury are ruled by partiality.
When a trial requires a jury, attorneys must select jurors with care. And judges must be fair, neutral and impartial.
Unbridled Favoritism
In the comic opera "Iolanthe," Gilbert and Sullivan illustrate how conceit, laziness and preferential treatment distort justice. In this work, librettist Gilbert lampoons the British House of Lords.
The ridicule is in good fun. Gilbert, like most Englishmen of his time, was fond of this institution.[15]
In Act I, the lord chancellor, speaker of the House of Lords, makes his grand stage appearance with lines both boastful and excessively trusting of the legal system: "The Law is the true embodiment of everything that's excellent. It has no kind of fault or flaw. And I, my Lords, embody the Law."[16]
Just in case someone who sees "Iolanthe" does not get the point about the lord chancellor, Gilbert and Sullivan dressed him up in robes with embroidered gold stripes on the sleeves to exhibit his bloated ego.[17]
But the lord chancellor does not adhere to his standard of legal excellence. He falls in love with Phyllis, a ward of chancery of whom he is legal guardian. It would not look admirable for him to marry his own ward, but he figures out a way to cut some legal corners.
He decides to pitch the idea to the highest officer of the House of Lords — himself, conveniently — to see whether he is right to marry his ward. He boldly persuades himself that he may marry Phyllis; he grants himself permission to do so.
He does not acknowledge the absurdity of this scenario. He instead appears genuinely proud that he can grant his own wishes.
Just as all judges must recuse themselves from deciding matters in which they have a personal interest, the lord chancellor should not have used his authority for self-benefit. Integrity is the cornerstone of the edifice of justice. Dishonorable, and worse, are those who wield power for personal gain.
Resisting Change
In another scene, Strephon, a radical new member of Parliament, plans to "throw the Peerage open to Competitive Examination."[18] Members of the House of Lords express discontent in response to this proposal. One House member who opposes this suggestion nevertheless says that he does not "want to say a word against brains — I've a great respect for brains — I often wish I had some myself."[19]
When "Iolanthe" premiered, the House of Lords consisted almost entirely of hereditary members belonging to the nobility.[20] Though American and British law value the dictates of stare decisis, this scene illustrates the importance of overruling bad precedent.
The House of Lords resists change. It hides behind the feeble justification that hereditary appointment is how things have always been done.
The Lord High Executioner
Like "Iolanthe," Gilbert and Sullivan's "The Mikado" pokes fun at a convoluted justice system.[21]
In this comic opera, Ko-Ko the tailor is condemned to death for flirting. To circumvent this harsh law, town authorities appoint Ko-Ko to the office of lord high executioner.
Beheadings are scheduled in a particular order. Ko-Ko is next on the list. His first job as lord high executioner is to execute himself. Ko-Ko avoids a terrible death by becoming the authority who must carry out the execution.
The scenario offers a lesson for judges and lawyers to emulate. Ko-Ko can avoid his fate on a technicality. Lawyers who seek to defend their clients should look creatively not only at the merits, but also to other factors that could bring a successful outcome for them.
Gilbert and Sullivan's Personal Legal Quandaries
In full-circle fashion, the law influenced Gilbert and Sullivan's works, and these works in turn generated real-world legal dilemmas of their own. In the late 19th century, the U.S. did not enforce British copyright. Unauthorized productions of the duo's comic operas sprung up across America.[22]
To escape pirating issues, Gilbert and Sullivan premiered "The Pirates of Penzance" in New York. The comic opera's theme acknowledged frequent "pirating" of Gilbert and Sullivan's other works in violation of British copyright.[23]
Gilbert and Sullivan came to New York to challenge America's inadequate copyright protections. In taking this step, they ironically became perpetrators in an employment-law dispute.
Upon their arrival in the U.S., Sullivan realized he had left his opera sketches in England.[24] Reconstructing the score of "The Pirates of Penzance" from memory, he added the finishing touches just days before the opening performance.[25]
The orchestra hired to perform the score then claimed that Gilbert and Sullivan's final product was a more substantial work than the previous version and demanded higher pay accordingly.[26]
The lesson for judges and lawyers is this: To be upstanding, one must avoid hypocrisy. Challenging the injustice of one law is not a license to commit another injustice in the process.
Gilbert and Sullivan's comic operas are famously fun entertainment. Their works are performed today, over 100 years after their premieres.
Judges and lawyers are especially beguiled by their characters, who break the rules of good lawyering by shamelessly throwing responsible critical thought to the wind.
Gilbert and Sullivan's comic operas have an enduring ability to make people laugh while teaching priceless lessons about the human experience, and the role judges and lawyers play in it.
Justice Gerald Lebovits is an acting justice in the Supreme Court of the State of New York. He is also an adjunct professor of law at Columbia Law School, Fordham University School of Law and New York University School of Law.
Tara C. Scown was a summer judicial intern for Judge Lebovits. She is a second-year law student at Cornell University Law School, and has performed in three Gilbert and Sullivan productions with Lamplighters Music Theatre.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Michael L. Richmond, Sir William Schwenck Gilbert and the Illogic of the Law, 39 Stetson L. Rev. 85, 86 (2009).
[2] This misunderstanding arose in the New York case of People v. Jorge
. A court reporter had mistakenly recorded the trial judge (for whom the co-author of this piece, Judge Lebovits, then clerked) to have instructed the jury that "the defendant is presumed to be innocent in a sense," thus diluting the presumption of innocence. In reality, the judge had merely repeated the word "innocence." See 161 A.D.2d 372, 372 (1st Dep't 1990) (citing The Pirates of Penzance and discussing the "close homonymic equivalent" of the court reporter's error and the opera's plot).[3] William S. Gilbert & Arthur S. Sullivan, The Pirates of Penzance, in The Complete Annotated Gilbert and Sullivan 219 (Ian Bradley ed., Oxford U. Press 1996).
[4] Id. at 217.
[5] Jeffrey G. Sherman, Law's Lunacy: W.S. Gilbert and His Deus ex Lege, 83 Oregon L. Rev. 1035, 1043-44 (2004).
[6] Pirates of Penzance, in The Complete Annotated Gilbert and Sullivan, supra note 3, at 231.
[7] Jon Kertzer, Life Plus Ninety-Nine Years: W.S. Gilbert and the Fantasy of Justice, 36 Mosaic: An Interdisciplinary Critical Journal 1, 9 (2003).
[8] Andrew Goodman, Gilbert and Sullivan at Law 60 (Farleigh Dickinson U. Press 1983).
[9] Trial by Jury, in The Complete Annotated Gilbert and Sullivan, supra note 3, at 11.
[10] The plaintiff's counsel confuses "bigamy" with "burglaree." Id. at 31 ("To marry two at once is Burglaree!").
[11] Stephen Kruger, Gilbert and Sullivan for Lawyers 7 (2014), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2311932.
[12] Trial by Jury, in The Complete Annotated Gilbert and Sullivan, supra note 3, at 11.
[13] Id. at 37.
[14] Id. at 23.
[15] Iolanthe, in The Complete Annotated Gilbert and Sullivan, supra note 3, at 357.
[16] Id. at 375.
[17] U.S. Chief Justice William H. Rehnquist was a big Gilbert and Sullivan fan. After seeing a production of Iolanthe, he embroidered gold stripes onto the sleeves of his judicial robes in homage to the Lord Chancellor's wardrobe, but, we hope, not in homage to the Lord Chancellor himself. David D. Savage, For Rehnquist, the Robe Has a Meaning, of Sorts, L.A. Times, Jan. 8, 1999, https://www.latimes.com/archives/la-xpm-1999-jan-08-mn-61733-story.html (noting that the Chief Justice wore gold stripes at President Bill Clinton's senate impeachment trial).
[18] Id. at 417.
[19] Id.
[20] Id. at 416.
[21] The Mikado was a thinly veiled taunt at the British government. Its setting in Japan made the satire palatable to British audiences. But The Mikado has come under fire for its insensitive portrayal of Asians written through a nineteenth-century lens. To save this comedic classic, some theater companies have altered the production setting to a fantasy land unassociated with any real location or group. Other companies have prefaced their performances with a prologue to contextualize the work and hired Asian actors to advise on how to perform it respectfully.
See generally Corinna da Fonseca-Wollheim, Is 'The Mikado' Too Politically Incorrect to Be Fixed? Maybe Not., N.Y. Times, Dec. 30, 2016, https://www.nytimes.com/2016/12/30/arts/music/review-gilbert-and-sullivan-the-mikado.html?smid=nytcore-android-share.
[22] Karen DeCrow, Trials in Opera, 84 N.Y. St. B.J. 38, 39 (Oct. 2012).
[23] See https://operahollandpark.com/news/a-short-guide-to-the-pirates-of-penzance/.
[24] Pirates of Penzance, in The Complete Annotated Gilbert and Sullivan, supra note 3, at 189.
[25] Id.
[26] Id.