Fission and Fusion: From Improvisation to Formalism in Law and Music1

Desmond Manderson, McGill University

Streaming video of keynote talk “Fission and Fusion: From Improvisation to Formalism in Law and Music”

Introduction: The Fission Between and Within Law and Music

Law and classical music are both performative disciplines. Both became concerned with practices of textual interpretation, and with questions of the authority of those texts and the legitimacy of those interpretations. But exactly how did that happen and with what social consequences? The relationship between law and music across the centuries shows striking parallels and echoes (Manderson, Songs). If we study them carefully each can illuminate the other, binding them together so that we can see them as two aspects of the same process and the same history. The insights we gain from the novelty of their conjunction help us to understand these social changes better and differently. The conjunction will also help us see how much our disciplinary blinkers prevent us from observing the far-reaching social forces which these cultural practices at each moment both echo and animate (Foucault). The first fission I wish to note therefore is a deep and unexamined rift between disciplines.

There is a further imperative here which derives from the fact that both law and music continue to be taught as largely practical, indeed sometimes brutally technical, pursuits. So the interdisciplinary history that I am urging here is doubly divided. The history of law, if it is taught at all—and often it is not—is cloistered in one nook of a scholarly corner. The history of music, particularly when it is taught within conservatories, is cloistered in another nook of its own scholarly corner. My aim in bringing them together is not only to illuminate their relationship to the great social forces that have radically reoriented our relationship to cultures, texts, and meaning over the past several centuries, but to insist on the value of history in returning to these practices a social value and a critical depth.

What happened to classical music? I mean here the term in its popular and broadest sense to connote the tradition of art music in the West. We think of classical music as the very opposite of improvisation, as the creature of a calculated perfectionism of creation and reproduction. The composition is carefully set down and deviation is not permitted. The performer is enlisted as the servant dedicated to reviving as faithfully as possible this precise and immobile object. This is the division of labour which in the nineteenth century became known as werktreue, or the true preservation of the Work (Benson; Goehr; Goodman). Thus the great nineteenth century music critic—and jurist—and storyteller—ETA Hoffman insists of the performer, “he disdains to let his personality intervene in any way” (qtd. in Benson 12). One hundred and fifty years later Donald Grout likewise insists that “an ideal performance perfectly realizes [the composer’s] intentions” (qtd. in Benson 11), though later editions of his work have admittedly taken a steadily less doctrinaire approach. Nonetheless it remains fair to say that classical music has become and remains wedded to an ideal of perfection, accuracy, and fidelity. This is its myth, its fate and, not infrequently, its curse.

But of course that treats a particular historical transition as if it were natural and essential. There is an enormous tradition of improvisation in classical music, as there is in all musical traditions (Benson; McGee; Nettl and Russell). The cadenza and complex practices of ornamentation in baroque music are merely two instances of the fluid relationship between composition and performance which existed throughout the classical tradition’s long evolution. To take one example, figured bass writing, standard practice from 1600 to 1750, was a kind of musical shorthand in which whole parts of the continuo were not written out at all but left to the creative judgment of individual performers (Benson). Much of Bach’s greatest music cannot be fully understood without an appreciation of the rich tradition of musical improvisation on which it relies. To take another example, textbooks that address themselves to ornamentation, such as those by Spiridion and Frescobaldi in the early seventeenth-century, for example, take as entirely unproblematic the legitimacy of performers’ modifications of given texts (Lamott). Neither do they provide anything resembling “rules” for musical ornamentation. Even in relation to fundamental principles such as the commencement note of a trill, the textbooks manifest considerable divergence and emphasize guidelines, context, and aesthetic judgment. They offer “discrete musical modules,” a vocabulary or language of ornament, in the use of which the performer will come to be proficient (Nettl and Russell; Neumann 3-5, 104-12). The role of musical education in this respect was not to suppress the exercise of discretion but on the contrary to empower it. 

Indeed the word “improvise” enters the vocabulary of music theory and criticism only in the nineteenth century at the moment when it becomes marked as anomalous and—as we now know—dubious (Nettl and Russell). Its emergence as a topic of theory corresponds, as always, with the anxiety of the theorist. In two generations after 1750 something truly remarkable happened to the self-understanding of music as a cultural practice. The question is, what forces began to increasingly constrain improvisation and freedom of performance, and on what new basis were expectations with audiences thereby constituted (Lamott)? More generally, what concepts of legitimacy and authenticity surrounding texts, creativity, and interpretation governed these practices?

The far-reaching nature of these changes and questions is brought sharply into focus when we realize that a remarkably similar transformation took place in law at the same time. The practice of improvisation is a response to a singular circumstance or instance through the exercise of judgment. Until quite recently, that is what judges did (Constable; Berkowitz). Yet just as nineteenth century musical practice began to condemn any exercise of improvisational judgment in favour of a total subservience to the work as written, so too the exercise of judicial discretion was increasingly condemned in favour of a total subservience to the legal text as written. This legal tradition, often now called legal positivism or formalism (Austin; Berman; Hart; Kelsen), became increasingly dominant in the eighteenth and nineteenth centuries and continues to govern our understanding of the role of the judge and the nature of law. Something happened to law and music that changed both of them and was part of the same, mutually related movement. The creative relationship between composer and performer, legislator and judge—the balance of forces between the making and the application of rules—profoundly changed. A kind of creative collaboration was replaced by a fission or division strongly marked by hierarchy.

Modernity and Normativity

What happened? Modernity. With it came a whole different way of thinking about texts and authority and judgment. The question of judgment was replaced, as Kelsen put it, by the question of identity (see also Benson). That is to say, in the aftermath of Reformation, Enlightenment, and Revolution (Berman), the key question to ask was one of textual authenticity (Goodman): is this document an authentic statement of its author’s intentions—whether we are talking about Shakespeare’s First Folio or a sonata by Beethoven, a section of the Code Civil or an Act of Parliament. Legitimacy, then, derives from the accurate reproduction of a text whose identity has been duly verified according to procedures that distinguish the false from the true—authenticated via the “signature,” which is how Derrida explains the feature that makes art, art (“Signature Event Context”); or via the “rule of recognition,” which is how H.L.A. Hart famously defines the feature that makes a law, a law (92-3). Such theories fundamentally assume that once the identity of a text has been authenticated, we know what is meant by it, how a piece of music ought to sound or how the law ought to be applied. What follows is simply our duty to obey the text 'as written'. 

In the Baroque and before, the question was not one of identity but of interpretation: what do we do with this piece of music or with this law, at this particular unique moment or confronted with this particular context? Neither procedure nor what Goodrich has called “the discourse of the pre-eminently prior” (188) was as privileged as it became in the modernist era. The question of interpretation recognized specific textual ambiguities and openings within any text, and welcomed the performer’s necessary exercise of judgment in relation to them. It treated that judgment not as interstitial but as constitutive (Berkowitz). Changing musical norms, I think, were aesthetic representations of broader social changes concerning who was in charge of a text and the terms under which a performance of it was considered estimable. With such parallels in mind we can begin to see law as aesthetic, just as we can begin to see music as social, each of them mutually imbricated in new ideologies about power, participation, and meaning.

But to justify this reasoning by juxtaposition, I first want to return to the early days of English statute law (Manderson, “‘Statuta’”). Consider the Magna Charta, or the Statutes of Westminster, the great centrepieces of thirteenth-century English legislation (9 Hen. III (1225); 3 Edw. I (1275); 13 Edw. I Stat. 1 (1285); in Ruffhead and Runnington, vol. 1).They do not look much like the statutes of today; they look like a mess. They are not organized in any particular way; they are unpunctuated and impossible to read. More importantly, they lack any of the textual markers that will—eventually, after a very long evolution which I have traced and discussed elsewhere (Manderson, “‘Statuta’”)—make them legible to a wider public. An early statute looks and reads like a letter, and that is what it was. “The King to his justices of the bench, greetings,” such a letter might begin. Statute laws were not originally statements of norms. They were not intended to declare new doctrines or principles to be followed by a general public. They were histories, memos of agreements made at a particular meeting—a parliament—that record by and large procedural instructions from the king to his lieutenants, sheriffs, judges, and so on, about how to execute that conversation. In short a statute was a private rather than public communication, more a record of the past than a mandate for the future (Clanchy). By and large, laws as public statements of mandatory norms governing conduct—of which the Ten Commandments are, of course, the paradigmatic example—are the social background to legislation, just as they are the social background to the common law and the jury system which was developing at the same time (Constable). There too the judge took his guidance concerning which norms to apply not from his own knowledge or some text but from the local jury itself. In a famous phrase, law developed in the interstices of procedure. Law as a set of norms was for a very long time a social reality which neither the common law nor legislation set out to generate or correct but to execute. Even the term Act of Parliament, suggestive as it is of the ability of law to “act” through mere words, on the minds and bodies of subjects, first occurs around 1500. Here too everything points to a most un-modern sense of the scope and nature of legislation.

We can trace exactly the same evolution in classical music. Notation in music begins in the eleventh century with Guido of Arezzo and is further developed in the thirteenth by Franco of Cologne. Here too the normative function of writing—that is, its function in instructing (we might even say commanding) future performers in what they were to do—is less important than its aesthetic functions and its role, again, as a record or history of what people actually did on a particular occasion. A record of how things have been done, while it may be helpful to future performers, is not the same thing as a mandatory instruction as to how something must be done.

The technology of notation, which gave authors the capacity to communicate their ideas over great reaches of space and time, begins to effect our understanding of the power of music and of law. Through the fourteenth to sixteenth centuries, legislation ceases to be a description of past events and begins to be a prescription of future conduct, becomes less directed towards individual actors and more directed towards modifying the behaviour of whole communities. In short, legal regulation becomes, like musical regulation, not just a medium of expression but a means of expression: a normative force. The technology of writing gave the legal text a new power and reach, and a new ambition. We can date from this period the idea of legal regulation as a mind altering substance. This is a profound change in what we think law is about and what it can accomplish.

Music, like law, began over this stretch of time to expand its imagination as well as its reach. The earliest polyphonic works, from the eleventh and twelfth centuries, exhibit a very limited tonal and harmonic range. But, in the succeeding centuries, the polyphonic resources of western music expanded enormously: tonal, harmonic, and dynamic range grew and, with them, music’s expressive resources. By the time of Thomas Tallis, for example, at the end of the sixteenth century, the complexity and movement of a composition like Spem in Alium is truly astonishing—forty different vocal parts weaving in and out of one another. And it is at this point that music begins to take on a distinct normative role. I mean by this that by the time of the late Renaissance composers, roughly from Josquin de Prez onwards, polyphonic music had reinvented itself from the singing of words into the expression of ideas. In the early period vocal music was to a large extent a medium of expression, which like a phone line or a pigeon acted as a kind of neutral vehicle for the carriage of words. By the late Renaissance, music had begun to turn into a means of expression. Thus as we are now so accustomed, the musical language of the Dies Irae does not merely accompany a text which “talks about” the wrath of God, it depicts it; the musical language of the Agnus Dei does not just “talk about” God’s peace but seeks to constitute it in the listener. Over time the normative power of music to persuade and transform became so important in the classical music tradition that it began to trump the text. This is true to such an extent that in the modern world it is a fair bet that the majority of those who go to a concert to hear (for example) Bach’s B Minor Mass or Verdi’s Requiem have very little idea what the words mean at all. That, of course, has been a very long process, but the normative power of music, that is, its capacity to communicate ideas and feelings and thereby to transform and constitute us, seems to emerge with the technology of musical notation and perhaps as a consequence of the capacities and ambitions it set in play.

Even more suggestively, musical texts become increasingly oriented towards curtailing, in ever more minute detail, the freedom of future performers. From around 1600 tempo markings begin to be used and these become more and more detailed. Around the same time, in the work of Giovanni Gabrieli, we see some of the earliest dynamic markings, instructing performers to play passages loud or soft. The use of these commands remains sparing until the late eighteenth century, but in the late classical and Romantic periods there is a veritable explosion in the expressive vocabulary of composers, the pages of a text black with detailed instructions as to speed, dynamics, and expression. Where Haydn and Mozart specified six levels (pp to ff), Beethoven also used ppp and fff, and Brahms a wide and nuanced range of terms. Thus in the slow movement of the trio Opus 40, he employs ppp, molto piano, and quasi niente to express different gradations of quiet. By the time of the late Romantics there is an almost obsessive and dictatorial control of every aspect of musical performance. Even the emotional attitude of the performer is subject to the composer’s control: agitato, appassionato, furioso, malincolico, lacrimoso, nobilmente, and so on. “Etwas lebhafter” and “Wie zu Anfang” writes Hugo Wolf; “gently but feelingly” instructs Percy Grainger.

Textual Anxiety: The Problem of Unbridled Discretion and the Formalist Solution

At the heart of this developing vocabulary of command and control lies an ambivalent relationship between text and time (Clanchy; Illich). Writing gives an author or composer unprecedented power to accomplish action at a distance. Your ideas can be realized outside of your knowledge and presence, and well beyond your death. But extraordinary as that power is it is also double-edged, because the extent of this power is commensurate with its diffusion. The power of the text corresponds, by definition, to the absence of the author, and therefore to his inability to impose in any direct sense his meaning or intention. Textual power is correlative to textual anxiety, since the greater the reach of a text, the weaker the direct control exerted by its author: the more breadth, the less depth. While the King was there speaking directly to members of Parliament and judges—while performer and composer were one and the same—he could actually control each and every performance of his work. In the seventeenth and eighteenth centuries, in politics, law, and music, this question of the power and licence of the text became increasingly important. What are we to do with judges who interpret texts in a way that seems fitting—to them—in the moment? What are we to do with performers who choose to embellish a piece in a way we had not imagined? What if we are not there to govern them? What if we are dead?

One of the earliest and most interesting expositions of this problem was the famous debate between Sir Edward Coke and James I (Kenyon; Boyer). In their dispute concerning the power of judges we see two different approaches to this growing problem. In his 1616 Speech to Star Chamber, James I instructs his judges: “When I bid you do Justice boldly yet I bid you do it fearfully; fearfully in this, to utter your own conceits, and not the true meaning of the law: And remember you are no makers of law but Interpreters of Law . . . For I will never trust any interpretation that agreeth not with my common sense or reason, and trew Logicke” (qtd. in Kenyon 84-86). James’ argument is, of course, an aspect of his absolutism, since his argument is for his own untrammelled authority over the reason, logic, and meaning of the laws of England. That was the year that he sacked Coke as Chief Justice of the King’s Bench. It is not hard to see why. Prohibitions del Roy (1607) was only published after Coke’s death and the execution of Charles I. Sir Edward argues quite to the contrary that interpretation is a matter for lawyers and not for monarchs: “True it was, that God had endowed his Majesty with excellent Science and great endowments of nature, but his Majesty was not learned in the Laws of his Realm of England . . . [legal cases] are not to be decided by natural reason, but by the artificial reason and judgment of Law, which Law is an art which requires long study and experience” (qtd. in Kenyon 180). So here is the voice that defends the authority of the improviser, the performer, against the increasing arrogations of the composer.

Yet both figures are transitional. James I is transitional because the constraint he sets in play is his personal authority, his absolute right to be the best judge of what common sense and reason demand. James does not objectify the text but ties it more closely to his own subjective will: he does not abandon discretion but narrows it to his own person. Coke for his part is transitional because he binds law not to the words of the King nor indeed to the word of God, nor yet to the text itself, but to the organic and informal traditions of the common law. Coke defends the performative nature of judgment, irreducible to a singular will or a definite code. He also does not abandon discretion but broadens it to encompass a whole tradition. The growing anxiety between text and interpretation which we see emerging in the cultural and political discourse of the seventeenth and eighteenth centuries generates a tension between these two different forms of authority, one customary and performative, the other monarchical and regulative, which Coke and James respectively defend.

But the solution does not derive from one of them alone. From James, we get this sense of a judges’ literal obedience to the law as opposed to some “interpretation” of it. But from Coke, we get the sense that law is impersonal and independent of the will of the King. The judge is not answerable to “common sense” or “reason” but to an “artificial” logic which is coherent in its own terms and not beyond them. So the modernist compact demands our unflinching obedience (as James had demanded) to the hermetic workings of the text itself and not the intentions or opinions of any individual (as Coke had insisted).

This is the formalist solution and in a moment I am going to argue that it characterizes musical history as well. Formalism was a response to two related crises of the seventeenth and eighteenth centuries: one, the crisis of textual power that threatened to unleash an uncontrolled discretion in art and thinking, and two, the crisis generated by absolutism (in the person of the Stuarts and the Bourbons for example) which threatened to unleash an uncontrolled discretion in government. In each case there was a problem of meaning, power, and whim. And formalism, rather beautifully, solved both those problems at once. It solved the anxiety of the text, but at the cost of doing away with the King’s own authority over the texts of the law. Neither judge nor King emerged intact from the new found sovereignty of the text (Berman).

Anxieties of legitimacy and control began to take shape in the eighteenth century, and if we have been calling the response to those anxieties formalism, perhaps a better name for it would be classicism. Classical science—Newtonian science—replaced God with clockwork, a perfect machine that runs by itself (Levenson). Political science attempted the same thing, replacing on-going acts of judgment—whether by a judge or a King—with universally applicable rules created at a particular moment: laws not judgments, constitutions not customs. That was the anxiety that the French Revolution attempted to resolve, avoiding the absolute and dangerous discretion of Kings and judges alike (Kantorowicz).

Both the legal and musical ideologies that developed during the Enlightenment sought the preservation and the glorification of an internally coherent and authoritative text at the expense of an earlier Aristotelian emphasis on character and judgment. The invention of the idea of the musical “work” and the ideology of werktreue,which went with it (Goehr 21-25), was a logical necessity for this revolutionary move towards creation, autonomy, and formalism.  In law and in music, this new focus on text and work transformed both who had control over their commodification and the kinds of commodities that were produced.

In music, the classical model replaced the performer's unique act of interpretation with a universal score supposedly capable of being perfectly reproduced each and every time. As I have indicated, by the end of the eighteenth century the practice of subjective judgment in music, under the growing pressure and tyranny of the text, had started to seriously erode the discretionary role of the performer in musical creation. It is at this point that improvisation starts to be labelled as such and marked as problematic (Nettl and Russell). Intellectual activity is almost always a product of anxiety, a sign not of knowledge but of a problem. That is precisely the case with improvisation, which throughout the sixteenth, seventeenth, and eighteenth centuries was simply part of the process of music-making. Only in the past two hundred years do we find analyses which problematize the practice, distinguish improvised from non-improvised performance, and treat any departure from a written text as a practice requiring justification.

Even more tellingly, the classical period is noted for the purification of musical form (Adorno; Goehr). Classicism saw the development and codification of, for example, sonatas, quartets, and concertos. I must resort here to gross generalization, but nevertheless I believe there is a kernel of truth in it. Baroque forms tend to be social, with connections to the church, obviously, if religious, and to dances if not: Bach’s English and French suites, Partitas and so on all draw on different kinds of dances (McGee). Nineteenth century Romanticism shows a heightened sensitivity to music’s mimetic capacities, particularly concerning nature and natural forms, and at the same time a growing alertness to music as story-telling (Abrams). All these different ways of thinking see music as connected to the world, whether the world of nature, community, or man. Classical forms are different not only because they develop quite constraining and specific structures which discipline compositional freedom (and against which Romanticism will rebel) but because they are not mimetic: they exist in and for themselves. A sonata does not exist in nature or the world. While it is true that eighteenth century theorists discuss it as a type of oratory or rhetoric (Ratner), in the sonata this takes distinct and incomparable musical form. A sonata is not a story or a dance or a depiction. It is a form which has only musical meaning and referents. So too the quartet, the symphony, the concerto. The structure is formal in this precise sense. What makes something a good sonata, and so on, is referable not to God, not to norms, not to nature, not to social practice, and not to kings, but simply to its conformity to the rules and expectations set down by the form itself. In music as in law, classicism marks this moment in which legitimacy moves from external to internal criteria. Thus music finds an aesthetic expression of the formalist solution to the political problem of discretion: it too substitutes rules and structures for individual character and judgment in the operation of power.

This has a social as well as a political dimension. The practice of music is starting to reconstitute its legitimacy as a professional practice answerable only in its own terms (Attali). The same could be said of law, which under the influence of formalism increasingly separates law from justice and the world. Legal legitimacy is increasingly not about the correspondence of its structures to “the real world” or—heaven forbid—the justice of its decisions, but—as Coke already clearly stated—it is about the application of an “artificial” technique or skill that only lawyers and judges possess. It is not surprising then that legal rituals and clothing become frozen in time at the end of the eighteenth century. Until quite recently, legal costume was simply the respectable costume worn in the classical period: frozen in time, eternalized, and answerable only to itself. Legal costume is the aesthetic expression of musical classicism just as classical form is the aesthetic expression of political formalism.

Formalism or classicism was then an essential strategy for both the social legitimation of lawyers and musicians, and the political legitimation of their enterprises. That strategy was based not on judgment but on technique, not on individual discretion but on the privilege accorded to the text. So the key in both law and music by the end of the eighteenth century lay in these two features: first, a language of purity, abstraction, formal rigor, internal coherence, and artificial reason. This is true whether we are talking about the complex rules for the determination of a trust, the codification movement (which likewise grew in ambition in the second half of the eighteenth century and found its most celebrated expression in the Code Civil of 1804), or the regulatory structures of the sonata form. And second, in the decline of practices of judgment and improvisation, and their replacement by judicial and musical subservience to the goal of a faithful reproduction of the written text, the werktreue in which “the great performer disdains to let his personality intervene in any way” (Hoffmann, qtd. in Benson 12). Hans Kelsen’s great Pure Theory of Law, although written much later (1935), is the most perfect exemplification of this transformation. For Kelsen, law becomes “pure” exactly by banishing all considerations of sociology, nature, justice, morality, psychology, biology, ethics, or theology. Its purity is preserved by “excluding from such knowledge everything which does not strictly belong to the subject-matter law” (Kelsen 477-78). And here too, as a hierarchy of norms, the role of the judge is simply to “perfectly realize” the given legal text, to preserve law’s pure structure unadulterated by the real world, to “disdain to let his personality intervene in any way.”

Sovereignty and Genius: Formalism and the Displacement of Freedom

Of course such approaches displace the moment of freedom but do not—cannot—get rid of it entirely. In the earlier period of what we might call baroque law and music, a more flexible approach to legal judgment and a more flexible approach to musical performance gave power, to be sure, to the judge and the performer, but that power (as Coke so clearly shows us) was always dependent on the maintenance of tradition and expectations. What constrains the performer or the decision-maker is not a rule or a procedure but a social relationship with a community: a jury, for example, or an audience. What we might now call improvisation or judgment reflects a different and looser sense of obligation to texts, to be sure, but just as importantly it reflects a different and tighter sense of obligation and responsibility to a community or audience (Benson).

Now the structure of formalism postulates instead a single creative moment—authorship—and thence a pure, uncontaminated transmission. Formalism therefore holds within it the seeds of revolutionary change, because it sunders the bonds between decision-maker and society, custom, or convention. Law in the modern age is not answerable to anything but itself; it is not an expression of morality or justice; it is nothing but a pure and abstract structure. As Kelsen put it, the origin of law inheres in what he called the grundnorm, the abstract moment at which the legal system began (Kelsen). Within Kelsen's hierarchical structure, all subsequent laws take their authority from this primordial one, as delegated and sub-delegated legislation. Once that structure has been set up, anything can serve as a legal norm so long as it complies with these hierarchical and procedural requirements. Kelsen is quite explicit on this point. The formal principle of the grundnorm is a kind of technology that replaces any substantive criteria of justice, democracy, or natural law thereafter. Neither are judges answerable, since their job in this new arrangement is not to do justice but to apply the law. In Billy Budd, Herman Melville puts formalism’s radical freedom from social constraint—one might almost call it freedom from conscience—perfectly. In that story, Captain Vere instructs his fellow officers that they must sentence Billy Budd to hang even though everyone acknowledges the injustice of such a decision. Justice, says Vere, is not their concern: “So now, would it be so much we ourselves that would condemn as it would be martial law operating through us? For that law and the rigour of it, we are not responsible. Our vowed responsibility is in this: That however pitilessly that law may operate it, we nevertheless adhere to it and administer it” (Melville 86-87).

In law, then, formalism replaced convention and discretion with rules and structures. But it also placed an absolute freedom in the law-maker, as opposed to dispersing it socially. As opposed to the discretionary and arbitrary monarch that the Enlightenment destroyed, the legal text became sovereign, but all constraints on the content of that sovereignty were removed. With Kelsen, sovereignty has been stripped of all personality, and of all accountability. Even James I might have been rather shocked by such a radical freedom, though he conceived his own authority to be absolute he nevertheless insisted that he was bound by reason, by justice, and by God. In music, likewise, formalism placed absolute freedom in the composer, as opposed to dispersing it creatively. In the nineteenth century this sovereign figure was called the genius (Benson). Immanuel Kant defines the genius as one who disobeys rules and gives them; he even calls him a legislature (Kant xliv, 112-22). In both disciplines the performer suffers at the hands of these two dominant figures. Judges are henceforth to be the obedient subjects of the sovereign, just as performers are to be the obedient subjects of the genius. Production and reproduction are completely severed. And perhaps it is not entirely fanciful to suggest that the two great inventions of the nineteenth century that helped enforce this new division of labour were the metronome (1815) and the policeman (1829).

There is a moment that encapsulates this ideological transformation and its paradoxes. Ludwig van Beethoven is often treated as the paradigm of this new sovereign figure, the genius (Benson). He had originally dedicated his Eroica symphony to Napoleon, but when Napoleon crowned himself Emperor in December 1804 the dedication was violently erased. Here is a celebrated moment of demotic fury railing against Napoleon’s imperial arrogance. Yet these two great men are the product of the same historical and aesthetic transformation. Ludwig van Beethoven explicitly defended his rights as an “unfettered genius” and insisted his compositions be performed exactly as written and no other way (Goehr 168-69, 225). Does he not come close to embodying John Austin’s famous positivist definition of law as a command issued by a sovereign (Austin 15-16)? Indeed Beethoven pioneered the authorial use of the metronome on just these grounds: as a means of policing wayward performers. Yet was Napoleon, who claimed for himself the paternity and dissemination of the Code Napoleon, any less an unfettered genius, a sovereign who disobeys rules and gives them? Napoleon surely thought of himself in just such terms: as the creator who gave the world its rules. Our avowed duty is to adhere to them and administer them, not in anger but in awe, not out of responsibility but out of obedience. If Beethoven hated this literal arrogance, this appropriation and concentration of power, one reason might be that it touched so close to home. Beethoven was as much a symptom of it as Napoleon.

Conclusion: Towards a New Fusion

Law is a structure of feeling and an aesthetic discourse, just as music, as we can see, is a political discourse, a manifestation of underlying questions of legitimacy, interpretation, authority, and power (Manderson, “Statuta”). Both are aesthetic, both are ideological, and both are intimately connected to one another (Adorno). In that respect I am inclined to turn Plato on his head and say, “beware the modes of law,” for when the modes of law change then music will change too.

The essential paradox is that under the guise of being purely descriptive and descriptively pure, ideologies of classicism and formalism have had important normative and hermeneutic consequences (Goehr). The guiding normative principle of musical performance becomes awe and obedience, just as the guiding normative principle of legal performance becomes order. Our judgment of merit turns from substance to form, from discretion to technique, from truth to validity, from responsive production to accurate reproduction, and from change to stasis—with profound consequences for our relationship to law and to music (or at least to classical music). 

In the process both law and music have been impaled on the horns of a dilemma. On the one hand, the new structure of authority and obedience commodified and pacified legal and musical performance. The sundering of the social and responsive from the act of performance has made musicians increasingly alienated from the mode of musical and legal production, as Jacques Attali points out. On the other hand, the revolutionary forces unleashed by formalism have privileged legal and musical originality likewise unanchored by any relationship to society. This has been radically generative and boldly experimental, but it has increasingly cost classical music its audience and formal law its social engagement. In both ways then, and in both fields, we have lost the difficult idea of a dialogue (Benson). Civil society now lacks not order and certainty (the problem that the Enlightenment sought to address) but a sense of participation, involvement, and agency. This is true in both law and music. The model of improvisation, on the contrary, is dependent on a relationship to society and a responsiveness to context (McGee; Nettl and Russell). In the twenty-first century we appear to be losing both. As music and law are increasingly seen to be matters of skill and spectacle, it is not just their practitioners who lose the capacity to contribute to the constitution of meaning and aesthetic value but the community as a whole. The more that werktreue and grundnorm reduce the creative moment to a singularity, the more we all become irrelevant. 

Theodor Adorno wrote that classicism is the fusion of love and law. What he meant by this (which closely parallel’s Hegel’s critique of Kantian law from the point of view of Christianity) is that there is, in the great works of the classical period—think of a late Mozart piano concerto—a powerful sense of originality and of inevitability. Its unfolding is experienced as utterly surprising and utterly necessary at the same time. Perhaps justice, as Derrida argued in “Force of Law,” aspires to the same thing: the momentary suspension of the rules and their affirmation in each instance in which they are called into question. As Derrida wrote, “for a decision to be just and responsible it must, in its proper moment if there is one, be both regulated and without regulation: it must conserve the law and also destroy it or suspend it enough to have to reinvent it in each case, rejustify it, at least reinvent it in the reaffirmation and the new and free confirmation of its principle” (“Force of Law” 961).

Formalism creates a hierarchy out of this aspiration, replaces fusion with fission, and reduces its generative power.  Ironically, the ideal of classicism is best achieved in the experience of improvisation, not in its elimination; in the acknowledgment of the importance of questions of context, change, and purpose in interpretation and legal judgment rather than in their rejection. 

Notes

1 This paper was originally given as a Keynote Address at the “Lex Non Scripta, Ars Non Scripta: Law, Justice, and Improvisation Conference.” June 19-20, 2009. McGill University, Quebec, Canada.

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