Case 9: The Merchant of Venice (Self-Regarding Contracts)
- Ayush Kumar
- Feb 16
- 9 min read
📝 Editorial Note:
This post forms Part VIII of an eight-part scholarly series on “The System of Reciprocal Duties.” The series explores the philosophical foundations of rights, duties, autonomy, and legal relationships across private, social, and public spheres. This concluding part examines the limits of contractual freedom through the lens of self-regarding contracts, using The Merchant of Venice as a conceptual case study.
🔗 Index:
Non-conflictual jural relationships
From Self-Regarding Acts to the Model of Spheres
Basanio, a young Venetian, wants to win the hand of Portia, a beautiful and wealthy heiress from Belmont.
He turns to his best friend, Antonio, the Merchant of Venice, and asks for a loan of 3,000 ducats. Since Antonio's wealth is tied up in his fleet, which is currently at sea, he must ask Shylock, a Jewish moneylender whom he despises, for the money. Shylock lends him the money but makes him sign a contract stipulating that, if Antonio does not repay the loan on time, Shylock can take a pound of Antonio's flesh as payment. When Antonio fails to repay the loan, Shylock demands his pound of flesh, to be cut from Antonio's heart. Assuming all parties are competent adults who are well-informed, capable of acting rationally, and free from undue pressure, the situation unfolds as follows.
We wonder if a self-regarding act can be the subject of a contract. Is this obligation legally enforceable? First, we will review Antonio's obligation to return 3,000 ducats to Shylock. Next, we will review the bond agreement, which states that if Antonio fails to repay the money within the established time frame, he agrees to settle the debt by giving up one pound of his flesh.
The Jural Relationship of the Loan Agreement
According to Kant's proposed classification, the acquisition of something external that is mine or yours can be divided in terms of the matter (the object). I can acquire either a corporeal thing or another person's performance or the status of that person himself. Depending on the mode of acquisition, it is divided into real rights, personal rights, or personal-real rights. The contract for the interest-free loan of money between Shylock and Antonio is a personal obligation.
According to Kant, a personal right is the possession of another's choice, as the capacity to determine it by my own choice to a certain deed in accordance with laws of freedom (what is externally mine or yours with respect to the causality of another). For Savigny, the debtor's freedom is subject to limitation in a sphere where the creditor's will reign supreme. The creditor has extended freedom as dominion over another's will, while the debtor has limited freedom as dependence on another's will. Kant observes that a contract is the unified will of two persons, whereby what belongs to one person passes to the other. If a period is allowed between accepting the promise and delivering what has been promised, the contract does not transfer ownership of the promised item. Rather, it transfers the promise of the other party to perform an act. The creditor acquires the right against a natural person; that is, the right to act at their discretion to produce something for the creditor. Accepting the promise leads to performance, which is a personal right, not a real right.
Money naturally belongs to the social sphere of exchange. Kant recalls Achenwall's definition: “Money is a thing that can be used only by being alienated”. Antonio's obligation to return 3,000 ducats does not contradict the axiom of external freedom or the universal law of social will. The obligation to hand over a sum of money is in accordance with the principle of reciprocity: “...coercion which constrains everyone to pay their debts can coexist with the freedom of everyone, including debtors, in accordance with a universal external law”. Shylock's right allows him to act on Antonio's choice, to put him in possession of the thing. From this point of view, and with all other circumstances being equal, the contract is valid and enforceable. Antonio's freedom may be subject to limitation in a sphere where the creditor's will prevails.
Antonio's Obligation to Deliver One Pound of his Flesh
The object of the contract, in which Antonio agrees to give 1 pound of his flesh, is the person himself. His decision to offer his body as guarantee for the loan may have been an economic calculation or the result of romantic passion. Shylock's interest probably stems from a desire for personal revenge. However, an individual's motives and the importance of their actions do not seem to be decisive in assessing their social duty.'
To determine whether Antonio has a legal obligation to deliver 1 pound of his flesh, we must consider the following points: 1. whether Antonio can validly consent to the removal of 1 pound of flesh from his body; 2. whether Antonio's consent has an irreversible effect; and 3. whether Shylock has a legal right to demand performance of the obligation. What is the role of social will in this context? 4. Whether Shylock should be compensated for the breach, or whether he should be punished for attempting to take Antonio's life.
1. The Validity of Antonio's Consent
We must consider whether Antonio can validly consent to the removal of 1 pound of flesh from his body or whether, on the contrary, Antonio's promise should be null and void because of a social duty to protect all citizens, even from themselves. We have argued that Antonio faces a prima facie conflict of duties towards himself. According to Kant, actions such as self-mutilation, the surrender or sale of a body part, and even the onerous alienation of one's hair, would be considered forms of partial suicide. These actions would be contrary to the prima facie duty towards oneself of self-preservation. However, Antonio decides to keep the promise he made to Basanio in his private sphere. Antonio has consented to the removal of certain organs and tissues from his body in the event of a breach of the principal obligation, an intervention that would inevitably result in his death.
This conduct only has direct effects in the sphere of privacy reserved for the individual. If it does not directly affect the interests of others or society, the act falls within the private sphere rather than the social sphere. Whether conduct breaches a duty to oneself can only be determined by internal judgment. Others or society have no right to prevent Antonio from putting himself in a situation where he could lose his life. Antonio has no social duty to refrain. His prima facie right of defense, which is opposed (‹›) to the no-right of everyone, derives from the determination of his own ends. This right is correlated (~) with the prima facie duty of everyone to refrain from interference. For these reasons, we must conclude that, all other circumstances being equal, the social will cannot prohibit Antonio's promise because it is part of his intimate sphere. As can be seen, internal legislation applies in this area, not the justice criteria of the social contract.
2. The Implications of Consent
We have argued that it is logically impossible to have property right over a person. Given that it is not possible to acquire a real right over a person, Antonio's consent does not have an irreversible effect. This does not imply a complete cessation of personal identity or a renunciation of future autonomy. The situation regarding Antonio's contract to deliver 1 pound of flesh or the example of voluntary slavery is distinct from the cases of assisted suicide or irreversible interventions. In the first case, the subject retains the capacity for self-determination. In the second case, the subject's inability to change his initial position is a factual impossibility. Antonio reserves the possibility of reevaluating his decision. This enables him to reevaluate his duties to himself.
3. Shylock's Claim-Right
No one asks Antonio whether he would prefer to preserve his life. This may be because it is presumed that this would align with his objective interest, or rather because it is assumed that the authority to release him lies exclusively with Shylock. However, given the absence of voluntary compliance, it can be deduced that at the time of the claim, Antonio had changed his mind. On this occasion, he chooses the duty of self-preservation. Antonio's choice of the duty of self-preservation establishes his right of defense. Therefore, it is necessary to examine whether Shylock has a legal right to demand compliance.
We have argued that Antonio cannot be prevented from voluntarily surrendering 1 pound of meat. The doctrine of self-regarding acts should not only prevent intervention to protect the individual from themselves but should also have a broader scope. This is a free area of law, meaning external coercion is not possible. According to Kant, the law in general only has as its object what is external to actions. This principle forms the foundation of a rule of negative competence. Society is not permitted to intervene in the internal sphere. The social will cannot demand that an individual perform an action that is detrimental to their own well-being. This is an objective no-right sphere, in which the freedom of the individual is opposed to a social no-duty. Antonio's obligation to deliver 1 pound of flesh to Shylock cannot be a duty enforceable by external coercion of the law; it remains in the sphere of duties towards oneself. In a similar way to intimate relationships in marriage, concubinage, prostitution contracts, contracts for the acquisition of human organs or tissues, or slavery, Antonio's obligation is not part of the external relationships that are regulated by law. We do not share the position that the passive subject is incapable of giving consent. Rather, we believe that the conformity of the bilateral will with the social will is subject to control when the creditor demands compulsory performance of the obligation.
The social will does categorically exclude the transformation of the human body into a market commodity. Trust in the legal system is not undermined by breaches of obligations that fall outside the domain of law. Therefore, Antonio's duty to fulfill his obligations (pacta sum servanda), which conflicts with his duty to preserve life, is a duty to himself, which can only be binding in the internal forum. Shylock and society have no-right to demand its fulfillment. Antonio's right of defense is correlated (~) with the actual duty of all to refrain from interference. For these reasons, we must conclude that, all other circumstances being equal, Antonio's promise cannot be demanded by the social will.
Humboldt arrived at a similar conclusion. He argued that the State should not prevent the formation or execution of contracts in which one party becomes an instrument of another's designs. For instance, this occurs when a contract results in the enslavement of the contracting party. The State should only deny the right of coercion provided by its laws. According to Humboldt, certain contracts that give rise to personal obligations, such as marriage, should be revocable without the need to provide further reasons. Kant argued that concubinage and prostitution cannot have legal validity because a person who enters into such a contract cannot be compelled to fulfill their promise if they change their mind. In a prostitution contract, in which one party gives themselves over to the other's control, either party may cancel the contract at any time without grounds for complaint. Servitude can also be terminated because a contract in which one party renounces their entire freedom for the benefit of the other is null and void.
4. Consequences for Shylock
We must consider whether Shylock should be indemnified for the breach, or whether he should be prosecuted for attempting to take Antonio's life. Mill's position on retraction aligns with that of Humbold. Except for contracts pertaining to monetary matters, Mill believes in maintaining the freedom of retraction. However, he also recognizes that if retraction harms the legitimate interests of another, that party must be liable for the damage.
The legality of Shylock's claim can be determined in light of the categorical imperative: “Act upon a maxim that can also hold as a universal law”. According to Pufendorf, compelling others to engage in slavery against their will would contradict the principle of reciprocity and be considered unlawful, as it would assert a right against others that one is not willing to grant to oneself. As with the contract of slavery, the obligation to deliver 1 pound of flesh would contradict the fundamental principles of humanity, which prohibit the treatment of other persons as commodities: “Act in such a way that you use humanity, both in your own person and in the person of any other, always at the same time as an end and never merely as a means”. Since Shylock's will does not align with the law, it would not give rise to a legitimate expectation either.
In turn, Shylock's demand cannot be regarded as an external act. The debate before the Duke of Venice is a theoretical discussion. Its purpose is to resolve the conflict of prima facie duties. Therefore, it is not an external interference against another and could not give rise to a criminal sanction against Shylock, as occurs in the play. Other examples of acts referring to oneself that cannot be enforced by law include the condition imposed by Antonio on Shylock to convert to Catholicism, as well as certain testamentary clauses imposing conditions of a similar nature.
Conclusion
The determining factor of whether the involvement of one or more individuals in the body of another falls within the intimate sphere or the social sphere is the presence of valid consent. In the intimate sphere, one of the parties may consent to intervention in their body. This sphere does not adhere to the principle of reciprocity. Individuals are free to legislate on the values that determine their closest relationships. If an individual changes the determination of their ends, they are at liberty to unilaterally modify or terminate the bond. By accepting the promise, a right/duty relationship is not established; rather, a no-right/no-duty relationship is formed because the intimate sphere is excluded from the social coercion of the law.
This article is based on:
Espinoza Rausseo, A., & Rivas Alberti, J. (2026). Duties Towards Oneself and Self-Regarding Actions in the System of Reciprocal Duties. Mexican Law Review, 18(2), e20548. https://doi.org/10.22201/iij.24485306e.2026.2.20548
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