Law, Music, and Other Performing Arts, Part I

Originally published in 139 U. Pa. L. Rev. 1597 (1991).
Copyright 1991 J.M. Balkin and Sanford Levinson. All Rights Reserved

Law, Music, and Other Performing Arts

Sanford Levinson and J. M. Balkin



“[I]nterpretation” is a chameleon. When a performing musician “interprets” a work of music, is he expressing the composer’s, or even the composition’s, “meaning,” or is he not rather expressing himself within the interstices of the score?


– Richard Posner(1)

Today the conductor, more than any one musical figure, shapes our musical life and thought. That may not be how things should be, but it is the way they are. In a future, fully automated age, it may be that the conductor, along with all performing musicians, will be obsolete. Musical creators are working toward that day, assembling electronic scores that, once put on tape, never vary … . But until that unfortunate day is here, let us be thankful that there still remain interpretive musicians to synthesize the product of the composer. For without the interplay between the minds of the creator and interpreter, music is not only stale, flat and unprofitable. It is meaningless … . Musical notation is an inexact art, no matter how composers sweat and strive to perfect it. Symbols and instructions on the printed page are subject to various interpretations, not to one interpretation.


– Harold Schonberg(2)

The legislature is like a composer. It cannot help itself: It must leave interpretation to others, principally to the courts.


– Jerome Frank(3)

I. Problems for the Performing Artist: Beethoven’s F-Natural, Schubert’s Repeats, and the Federal Land Policy and Management Act of 1976


The eminent pianist and writer Charles Rosen has noted that “[t]here is an irritating or piquant wrong note in the [score of the] first movement of Beethoven’s first piano concerto, a high F-natural where the melody obviously calls for an F-sharp.”(4) What accounts for an “obvious” error by this giant of classical music? The answer, says Rosen, lies in the developmental state of the piano when Beethoven composed the concerto: the piano keyboard stopped at F-natural, which therefore established the limit of what was physically possible for a performer to play. To be sure, Beethoven might have written “aspirationally” and composed what, though impossible under current conditions, could nonetheless be aspired to under some future imagined state. Thus Rosen writes of a piano sonata in which Beethoven “asks for a successive crescendo and diminuendo on a single sustained note,” even though “the instrument that can realize this has not yet been invented.”(5) But at least this suggests that Beethoven was capable of envisioning the possibility of radical transformation regarding piano design and wanted to signify an intention should those possibilities ever be realized. What, then, does the performer do with the F-natural, where Beethoven appears instead to have acquiesced to the limits of the instrument?

Though the piano that can simultaneously heighten and reduce the sound level of the same note apparently still awaits its development, the piano has indeed been transformed beyond the instrument known to Beethoven in Vienna. Indeed, the expansion of the keyboard happened only shortly after the composition of the first concerto; high F-sharps soon were available to both composers and performers, as exemplified by Beethoven’s own use of this note in a number of subsequent compositions, including, interestingly enough, a cadenza meant to be performed as part of the first concerto.(6) He did not, however, return to the initial composition and physically change the notation of the earlier F-natural, in spite of an announced intention, in Rosen’s words, “of revising his early works in order to make use of the extended range.”(7) What, then, is a performer to do when she comes to the measure in question? Should she feel bound by the “plain meaning” of the written score, which displays the F-natural, or ignore it and play what Rosen, a gifted pianist, calls the “obviously” preferable F-sharp?

What note should be played is only the first question. Just as important is another. Should we expect the performer, along with playing whatever note she thinks preferable, to offer a “theory” of musical performance that explicitly offers a justification for the note played? Such a theory, for example, would recognize the presence of such contending factors as the standard meaning of musical notation (to those trained in reading music), the composer’s presumed intent, the likely sound heard by the initial audiences of the piece, the expectations of the modern audience, or purely aesthetic desirability – i.e. (or is it e.g.?) the production of beautiful and satisfying sequences of sound. Consider also our reactions if the performer gave as a response to our question, “Why did you play that note?” something like, “I just perform and play the note that feels right to me. If you want a theory of performance, go ask someone else. I can’t imagine why you would expect one from me, or why you would feel that being given a theory would be of any use.”(8)

If we expect the performer to be able to defend her choice to F-sharp or not to F-sharp, would we (however that “we” is defined) advise the performer to look not only at traditional musical materials, but also at what lawyers have done when deciding the meaning of legal notation? It should already be obvious that a lawyer (including, paradigmatically, an adjudicator) engaged in the performance of legal practice – for example, by being asked to construe a statute or a Constitution – can easily be presented with what appear to be equally “obvious” mistakes and be confronted by similar dilemmas of interpretation. Consider, for example, a provision of the Federal Land Policy and Management Act of 1976 that requires firms with unpatented mining claims on federal lands annually to reregister those claims “prior to December 31.”(9) What is the status of a claim filed on December 31?(10) What do we expect from the legal performer faced with giving meaning to the ink on the page, and how, beyond the obvious difference in subject matter, would those expectations differ from those directed at the musical performer?

Before answering that question, we ask our readers to consider one more musical example, this time from the piano sonatas of Franz Schubert. The great pianist Alfred Brendel has indicated that he feels no duty to follow the repeat signs that appear at the end of the first sections (the so-called “expositions”) of Schubert’s last piano sonatas.(11) It has, apparently, been believed since at least the late nineteenth century that “these repeats were vestigial manifestations of an archaic mentality and therefore merely pro forma.”(12) One reason offered for skipping the repeats is that most members of a modern audience have in fact heard, perhaps repeatedly, the pieces in question (and, of course, they can, by purchasing a record, repeatedly hear the piece, even if previously unknown to them, in the future); they therefore do not benefit from the repeats being played in the same way as did earlier audiences who only rarely could hear any given piece of music.

A second reason deals with contemporary concert practices. Most modern audiences expect three sonatas in the course of a concert, to be played within a two-hour period. Taking all of the repeats would require violating one of these expectations. People would either feel “cheated” by being presented with a meager program or imposed upon by the demand that they remain in the concert hall for two-and-a-half hours in order to get their full allotment of three sonatas.

Brendel’s advice to skip the repeats has not met with universal enthusiasm. Neal Zaslaw, a professor of music at Cornell University, believes that “there is no evidence that the repeats … were not meant at face value,” and he goes on to add that “[r]epeats are repeats, not question marks. They are there because the composers intended them.”(13)

To be sure, Professor Zaslaw is no fanatic. He “see[s] nothing wrong with omitting them if time is short, the evening growing late, the performer or the audience seeming tired.”(14) He laconically notes that even the greatest composers, “who made their livings by composing and performing frequently and to order, understood and accepted the realities of adapting the music to the occasion.”(15)

Still, he seems to suggest, one ought at least both have a good reason for ignoring the repeats and have the decency to admit that one is rejecting the composer’s intentions on the matter. Again, one wonders, what is a performer to do, with what rationale, and might a conversation with one’s counterparts in the law be at all helpful?

This essay is a review of Authenticity and Early Music,(16) a collection of essays that exemplify the heated debates now occurring over what is variously called the Early Music Movement or the Authentic Performance Movement. The movement itself has diverse features, including the rediscovery of forgotten music, especially that of the pre-Baroque period, and the careful reconstruction and renovation of period instruments.(17) But the more controversial aspect of the Early Music Movement is the claim of its followers that music should be played according to the “authentic” performance practices of the era in which it was composed.(18) The phrase “early music” has thus become somewhat of a misnomer. The study and application of performance practices of the Renaissance has paved the way in the past twenty years for authentic performances of the Baroque period – Vivaldi, Bach, and Handel, and then on to the music of the classical period – Beethoven, Haydn and Mozart. Nor have the devotees of authentic performance been content to rest with the close of the eighteenth century. For example, one of the most controversial early music conductors of Beethoven, Roger Norrington, has begun issuing “authentic” renditions of Berlioz, Mendelssohn, and Schumann symphonies. If Schumann’s Spring Symphony is made authentic, can Brahms be far behind?

As Will Crutchfield explains in his essay, these developments have created considerable anxiety in “traditional musicians,” an anxiety, Crutchfield argues, that is well justified:

They know it will not stop with Beethoven any more than it stopped with Bach ten years ago. The movement not only hits them in the pocketbook, but questions the very basis of their art. It is as though we told a generation of scientists that their Ph.Ds were based on a now discredited body of theory – say Ptolemaic astronomy – and now, sorry, the degrees are no good. Worse: it is as though we had been told that Ptolemy was right after all.(19)


As Crutchfield suggests, great sums of money – in recording contracts and record sales – and great professional power and prestige are at stake in the debates over authentic performance. It is no accident that Raymond Leppard, one of the foremost interpreters of Baroque music in an earlier generation, looks askance at the claims made by disciples of authenticity, some of whose recordings inevitably compete with his own.(20) The monetary interest alone, a cynic might suggest, is enough to attract the attention of lawyers. Of course, that is not quite the reason we became interested in these matters. Our interest is in the theory of interpreting commands. We are legal academics writing primarily, we presume, for other legal academics, who are either legal performers in their own right or, with at least some regularity, critics (in the sense of evaluators) of the legal performances of others.

There are two obvious questions raised by our writing this review, even prior to the specific points we will be making below. The first concerns competence. Are we reviewing the book as “experts” who can claim some special training in the areas being discussed by the book’s contributors and offer critical assessments of and contributions to the scholarly literature of musicology? The answer, in the case of one of us (Levinson), is unequivocally no; though he listens to music a great deal, his critical acumen is limited almost entirely to “knowing what he likes.” The case for the other (Balkin) is a bit more complicated,(21) but he would also make no claims to being a member of the musicological scholarly community to which one ordinarily looks for “authoritative” pronouncements about the quality of scholarly work. But so what? Why would one believe that one must be an “expert” in an area in order to have interesting things to say about a given book? And this question, it should be noted, is as true for books about law (about which we are suitably certified experts) as for books about early music. One of us (Levinson) has written a book explicitly attacking the notion that conversation about constitutional law should be restricted to those who have been properly credentialed.(22) Thus, if we are so bold to review a book on early music, we should not be afraid to see books on law reviewed in Early Music, the leading journal in that field. On the contrary, we would welcome such reviews, at least if musicians think there are any useful comparisons to be made.

This last point leads to a second, equally obvious, question: Why should any lawyer care in the slightest about the debates occurring in the alien field of music (or musicologists about the debates played out in the legal academy)? Richard Posner, the author of one of the quotations opening this essay, devoted much of his book Law and Literature: A Misunderstood Relation(23)to attacking the premise that legal analysts really have anything to learn, at least professionally, from the interpretive dilemmas faced by their colleagues in departments of literature. “[T]here are,” wrote Posner, “too many differences between works of literature and enactments of legislatures [or of constitutional conventions] to permit much fruitful analogizing of legislative to literary interpretation.”(24) One of us (Levinson) had written that “[t]here are as many plausible readings of the United States Constitution as there are versions of Hamlet.”(25) Though agreeing that Hamlet and the Constitution both present many genuine interpretive puzzles, Posner insists that they are “so different from each other that it is unlikely that a Hamlet scholar will have anything useful to say about the Constitution or a constitutional scholar anything useful to say about Hamlet.”(26) Posner’s allusion to musical performance in the opening quotation notwithstanding, it is unclear whether his skepticism about insights from literary scholars would dissipate if they were replaced by insights from musicologists.

We think that Posner is wrong in dismissing the potential benefits of communication between literary and legal analysts, but we also think that the question is not truly a theoretical one, as suggested by Posner’s use of the word “unlikely” rather than, say, “inherently impossible.” The ultimate test in regard to the interplay of law and literature, music, or any other field is the practical aid given the analyst, the felt sense of illumination provided by thinking about Beethoven’s F-natural or Hamlet while wrestling with the possible meanings of a statute, regulation, or the Constitution of the United States.

Posner’s dismissal of the potential interaction between legal analysts and disciplinary outsiders (or vice versa) begs a number of important questions. One is the assumption that there would have to be a transdisciplinary theory of interpretation-in-general that could be applied to all texts in order for different disciplines to have important things to say to each other. In fact, many modern students of hermeneutics have rejected the plausibility of a “science” of “interpretation in general.”(27) As a tradition now identified with Wittgenstein and his successors insists, there are only “practices,” each constituted by inchoate and unformalizable standards that establish one’s statements or, indeed, pianistic performances, as “legitimately assertable”(28) by persons within the interpretive community(29) that constitutes the practice in question.

At the same time, an increasingly common practice in the contemporary academy is precisely to look outside the narrowest disciplinary boundaries for potential insight in solving the puzzles presented by one’s own disciplinary materials. To adopt Claude Levi-Strauss’s famous notion, the essence of the post-modernist, post-structuralist interpreter is to be a bricoleur, who resourcefully and opportunistically borrows whatever tools might be available to solve particular problems at hand.(30) There are obvious similarities between bricolage and contemporary pragmatism. The bricoleur is not a self-conscious theorist. What justifies using any given tool is its usefulness. There is no theoretically a priori way of deciding what tools are either “essential” or “absolutely inappropriate.” Thus the pragmatist temperament, which is most likely to reject the notion of a transcendental science of interpretation, is also the most likely to look to other disciplines for analogies and comparisons that might be useful in the pragmatist’s own work. Ironically, it is only after one gives up the dream of a single tool useful on every occasion that one begins to see the merits of the diverse tools available for construction, whether of buildings or of theories.

Indeed, Judge Posner, who has recently announced himself a pragmatist in his book, The Problems of Jurisprudence,(31) has hardly practiced what he preached in Law and Literature: A Misunderstood Relationship;(32) and his later writing suggests he may now be somewhat more latitudinarian. He has, for example, recently published a devastating review of Robert Bork’s originalist jurisprudence under the title Bork and Beethoven.(33) Posner raises, but does not consider at any real length, some of the questions elaborated in the present review. He notes particularly, and valuably, that conservative intellectuals associated with the magazine Commentary seem both to embrace Bork’s originalism – the view that “original intent” should control constitutional interpretation – and to be hostile to what on the surface seems to be a very similar view, identified with partisans of “authentic” performance – that a musical performer should try, as much as possible, to recreate the original sounds of a musical composition.(34) He is certainly correct in noticing that explanation of this apparent inconsistency requires some analysis of the cultural moment in which both make their respective appearances. Indeed, it is precisely the insight displayed by juxtaposing Bork and Beethoven (or, more accurately, Bork and Commentary’s music critic Samuel Lipman) that seems to disconfirm the rigid disciplinary separations advocated in Law and Literature: A Misunderstood Relation.

Given that we, too, consider ourselves pragmatists, we certainly have no desire to criticize Posner’s argument by positing another equally aprioristic notion that reading literary theory or musicology will necessarily be helpful. Nor, certainly, do we wish to argue that law, literature, and music are identical enterprises operating under similar rules of practice. They are not. But to concede that law and music are importantly different does not necessarily imply that they do not also share enough similarities to make comparison useful (and, once more, we emphasize that pragmatic usefulness is the primary criterion we are employing).

Rudyard Kipling put the matter succinctly: “[W]hat should they know of England who only England know?”(35) Presumably one can paraphrase (though not parody) Kipling by asking “what should they know of Texas tort law who only Texas tort law know” (the justification, presumably, for teaching in our classes de facto comparative tort law rather than concentrating on the law of a single jurisdiction); “what should they know of tort law who only tort law know” (the justification, presumably, for asking our students to compare the notion of warranty as developed in contract law against developments in the products liability branch of tort law); or “what should they know of American tort law who only American tort law know” (the justification, presumably, for offering to our students courses on other societies’ responses to the problems treated by American tort law). So the question ultimately becomes, “What should they know of law who only law know”? Obviously one can know a great deal about England without leaving its shores, and one can make the same claim about the other examples. But is Kipling really “refuted” by that recognition? Would we not, instead, say that few people cannot learn more about their own society by experiencing another? Is this not why most of us refer to travel as “broadening”? Surely this term implies more than simply amassing information about a different society. Rather, it suggests that a realization of how they do things in Tanzania will provide insights into how we behave here in the States. This has certainly been our own experience, and, we are confident, the experience of most of our readers.

Why does Posner, who is notably catholic in his own intellectual interests and well aware of the importance of looking outside traditional legal materials for insight into the law, reject the utility of a lawyer’s reading literary theory? The primary reason seems to lie in Posner’s insistence that law and literature are fundamentally different enterprises, with fundamentally different points. “A poet tries to create a work of art, a thing of beauty and pleasure.”(36) This is, for Posner, presumably true of literary writers in general, even if their genre is the novel or short story rather than the poem. The legislature (or the constitutional convention), on the other hand, “is trying to give commands to its subordinates in our government system.”(37) The notion of “command” is central to Posner’s theory. “A command,” he says, “is designed to set up a direct channel between the issuer’s mind and the recipient’s; it is a communication, to be decoded in accordance with the sender’s intentions.”(38) Nor is Posner alone in this view. Robin West, normally no great ally of Posnerian thought, concurs: “legal interpretation is the attempt to ascertain the meaning behind a command; literary interpretation is the attempt to ascertain the meaning behind an artistic expression.”(39)

In their differentiation of law and literature, both Posner and West take the poem and the novel as the model of artistic expression. This is a fortunate example for both scholars, since the poem and the novel seem to have little to do with the phenomenon of command. Although Shelley might have claimed that poets were the unacknowledged legislators of mankind,(40) that designation is clearly metaphorical in a way that is not true of the senator or representative anguishing about a vote or the military commander ordering troops into action. Posner thus argues that “[l]aw is coercion rather than persuasion,”(41) and he offers the interpretation of military orders as a good analogue to statutory interpretation in general.(42) For her part, West asserts that “[l]aw is a product of power,” and that legal interpretation is criticism of power.(43)

It is not the purpose of this review to question Posner’s or West’s reliance on law-as-command or law-as-emanation-of-power, although both of us believe that undue emphasis on this theory produces an impoverished account of law.(44) Indeed, for purposes of this review, we will gladly accept their view that law does indeed often command in a way that a poem or a novel does not. We will also acknowledge that there has been too much insistence that techniques of poetic interpretation could prove useful to the legal analyst, and that law-and-literature scholars have overemphasized the similarities between law and literature and underemphasized the differences. But note that what is interesting about the examples that lead off this review – Beethoven’s F-natural and Schubert’s repeats – is that they appear to be law-like commands. Consider in this context the comments of early music apostle Christopher Hogwood regarding the discovery of new material relevant to a composer’s presumed intentions: “That’s the wonderful thing, I think, about coming across new versions of pieces or new evidence. Suddenly that gives you this extra energy: ‘Ah, a new set of instructions for embellishment … ah, wonderful!’”(45) If this is not a command theory of language, we do not know what would be.

Indeed, when one looks at any musical score, one is faced predominantly not with expression, but command. For what is a musical score but a series of directions concerning tempo, meter, pitch, rhythm, attack, and orchestration that are to be carried out over time by a group of performers? To be sure, the skilled musician can read a score like the ordinary person can read a novel, but this is not normally the way either enjoys music. Rather, one listens to the result of the commands brought to life by the performers so instructed. We can therefore imagine a continuum of artistic genres, some of which are more command oriented, like the musical score, and others which are less so, like the poem and the novel. The differences are, like those in all continua, a matter of degree. Even a poem may contain instructions (whether explicit or implicit) on how it is to be read – for example, through punctuation and accent marks. Far closer to the musical score is the play, which includes both the lines to be spoken by actors and the relevant stage directions. To be sure, plays can be read silently without performing them, and studied and appreciated like poems and novels. But most people would agree that the artistic expression in a play is not fully realized except through its performance on the stage. Dramatic genres thus undermine the distinction between interpretation of artistic expression and interpretation of command, for a play’s artistic interpretation requires interpretation and observance of commands.

At first glance it might seem odd to speak of the lawyer or the judge as a “performer” of law. But in fact, the comparison, first noted by Jerome Frank, is quite apt.(46) As John Chipman Gray, one of the precursors of realism, pointed out at the turn of the century, the texts we call law are not law-in-action but only sources of law – they require the interpretation and application of lawyers, judges, and other legal officials to become law in the sense of a practice of social regulation.(47) Just as the music of the Eroica is not identical with its score, but needs a performer to realize it, so too the social practice of law is not fully identical with its written texts, but needs the activity of those entrusted with its performance to be realized.(48)

Another reason often given to doubt the relevance of artistic interpretation to legal interpretation is the differences in consequences that flow from the interpretive act. Legal interpretation affects people’s lives and fortunes, whereas nothing of consequence flows from what literary interpreters do. A second, related claim is that unlike artistic interpretation, adjudication is distinctively an act of power.(49) Thus, Professor West argues that adjudication, although in form an interpretive act, is actually an “imperative act” – “an exercise of power in a way in which truly interpretive acts, such as literary interpretation, are not.”(50)

As to the first point, it seems clear that more rides on whether a young lieutenant obeys what she believes to be a mistaken order of her commander than if Alfred Brendel takes a repeat in a Schubert sonata. But that is true only because of the particular examples offered. In fact, much more may turn on certain directorial decisions in mounting productions of plays or operas than the adjudicated result of the average fender-bender. As noted above, the authentic performance movement is controversial not merely because of its hermeneutic claims, but because it threatens to throw a large number of traditional performers out of a job. If Maestro Norrington is correct, the New York Philharmonic would be best advised to keep its nose out of Schubert, Dvorak and the Romantics – the backbone of the modern symphony orchestra’s repertory – to say nothing of Beethoven and Mozart. It had best stick to music it can play authentically – Shostakovich and perhaps Walter Piston. No doubt this will have a significant impact on its subscriptions. It will have an even greater effect on recording contracts, whose royalties often make up a sizeable chunk of a firstclass orchestra’s revenues. The authentic performance movement is controversial because it has thrown down the gauntlet – play Beethoven with extra woodwinds and an extremely astringent string tone or do not play him at all.

To be sure, Roger Norrington does not have the same power that the Supreme Court does. He cannot enjoin the New York Philharmonic from playing music “incorrectly,” and those who disagree with him can offer competing readings of the music, unlike lower courts who are presumably bound by Supreme Court interpretations of federal law.(51) But even if Norrington has less power to enforce conformity with his views than an appellate court, it is a mistake to view him as having no power at all, especially to the extent that his devotees gain control and influence over institutions that shape our musical tastes and preferences.

One need only look at changes in the Penguin Stereo Record Guide(52) – a record collector’s bible authored by contributors to Gramophone Magazine – to see what is at stake in the debates over authenticity in terms of economic power, status, and artistic prestige. In the second edition, published in 1975, the authors speak paternalistically but often approvingly of the very small number of authentic performances of Baroque music then recorded; in their view, it’s quite all right if you like that sort of thing.(53) But traditional performances constitute virtually all recommended albums of Baroque music. As the Eighties progressed, more and more authentic performances, first of Baroque, and then of Classical music appeared. In the 1984 successor volume, The Complete Penguin Stereo Record and Cassette Guide,(54) the authors express their approval of many individual “authentic” performances, tempered with occasional distress at the new fundamentalism that appears to inform them.(55) “Traditional,” rather than “authentic,” performances, however, constitute the lion’s share of recommendations.(56)

In the work’s latest incarnation, The Penguin Guide to Compact Discs,(57) published this past year, the field of Baroque music has been largely ceded to authentic performers. It is assumed that most listeners will want such performances, although recommendations are still offered for those who insist on more traditional versions.(58) With millions of classical music discs sold each year on the recommendations of Gramophone and similar magazines, it is clear that interpretive debates are hardly exclusively about matters of expression.(59)

As for Professor West’s second point – that legal interpretation is an act of power, while artistic interpretation is not – we think this borders on the naive. One does not have to be a Nietzschean to recognize the struggles for power and prestige involved in debates over artistic interpretation. Indeed, the essays in Authenticity and Early Music speak of nothing so much as the battle for authority between early music acolytes and their traditional opponents.(60) Richard Taruskin complains loudly of the “authoritarian” appropriation of the word “authenticity” by early music advocates,(61) while Will Crutchfield begins his essay by noting that the authentic performance movement “has come to resemble a juggernaut, a steamroller, a conquering army.”(62)

Like Professor West, we also may have too easily accepted that the paradigm of interpretive debate was a solitary scholar lecturing on Keats’ Ode to a Nightingale from a lectern. Yet it has become increasingly clear that many acts of interpretation are performative utterances which simultaneously constitute acts of power.(63)

Rather than seeing the legal act of interpretation as exceptional in its complicity with power, we would suggest that it is quite the other way around. The legal act of interpretation, which clothes power through an act of cognition, is the normal, paradigmatic act of interpretation, while an imagined quiet “powerless” lecture on Keats is the exception.

Moreover, we think that West’s and Posner’s arguments about legal power confuse the effects of interpretive difficulties with their causes. It may well be true that because the meaning of the Constitution is debatable, people’s lives will be affected by what interpreters do. Thus, significant consequences turn on the existence of interpretive difficulties. But this fact is not the cause of interpretive difficulty. The cause is the semiotic nature of the command – the fact that the Constitution contains commands encoded in signs requiring interpretation in the light of existing conditions. It is because both the text of the Constitution and the score of Beethoven’s Pastorale Symphony are commands inscribed in signs that must be interpreted by performers that difficulties of interpretation arise. Once again, we do not deny that the consequences of the exercise of interpretive power should be in the mind of the interpreter as she interprets, and that they might serve as reasons for interpreting one way rather than another. But the interpreter’s power does not create her interpretive difficulties – rather it is the interpretive difficulties which give rise to her power over others.(64)


1. R. POSNER, THE PROBLEMS OF JURISPRUDENCE 271 (1990).Levinson is St. John Garwood Chair in Law, University of Texas School of Law. Balkin is Charles Tilford McCormick Professor of Law, University of Texas School of Law. The authors wish to thank Joseph Dodge, Doug Laycock, Dennis Patterson, Richard Posner, Robert Post, Tom Seung, Allan Stein, Carol Weisbrod, and Jay Westbrook for their comments on previous drafts, as well as the participants in faculty workshops at Rutgers-Camden School of Law and the University of Texas School of Law, where earlier versions of this essay were presented.


3. Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 COLUM. L. REV. 1259, 1264 (1947).

4. Rosen, The Shock of the Old (Book Review), N.Y. REV. BOOKS, July 19, 1990, at 46, 48.

5. Id. at 48.

6. See id.

7. Id.

8. Cf. Fish, Dennis Martinez and the Uses of Theory, 96 YALE L.J. 1773 (1987) (asserting a lack of a relationship between theory and practice).

9. Federal Land Policy and Management Act of 1976 § 314, 43 U.S.C. § 1744(a) (1988).

10. See United States v. Locke, 471 U.S. 84 (1985). This case is discussed by Judge Posner in R. POSNER, supra note 1, at 267-69, in which he criticizes the majority of the Court for barring claims filed on December 31 because they are not “prior” to that date.

11. See Brendel, Schubert’s Last Sonatas: An Exchange (Book Review), N.Y. REV. BOOKS, Mar. 16, 1989, at 42, 42-43; see also Zaslaw, Repeat Performance (Book Review), N.Y. REV. BOOKS, Apr. 27, 1989, at 58-59 for a lengthy letter to the editor responding to Brendel’s argument.

12. [footnote missing]

13. Id.


14. Id.

15. Id.

16. AUTHENTICITY AND EARLY MUSIC (N. Kenyon ed. 1988).

17. See Kenyon, Authenticity and Early Music: Some Issues and Questions, in AUTHENTICITY AND EARLY MUSIC, supra note 16, at 1.

18. See id. at 4-5.

19. Crutchfield, Fashion, Conviction, and Performance Style in an Age of Revivals, in AUTHENTICITY AND EARLY MUSIC, supra note 16, at 19, 20.

20. See Kenyon, supra note 17, at 7-8.

21. Balkin, unlike Levinson, studied composition and orchestration in his youth, and has published an article on Puccini’s opera Turandot. See Balkin, Turandot’s Victory, 2 YALE J. OF L. & HUM. 299 (1990).

22. See S. LEVINSON, CONSTITUTIONAL FAITH 49-50 (1988) (defending a “protestant” approach that minimalizes institutional authority and invites all citizens to participate as equals in constitutional dialogue).


24. Id. at 218.

25. Levinson, Law as Literature, 60 TEX. L. REV. 373, 391 (1982). Interestingly, most readers have read this passage as asserting the infinite malleability of the Constitution rather than, say, the limited number of plausible versions of Hamlet. This probably says more about the layman’s views about plausible artistic interpretation than it does about Levinson’s views of the Constitution. See infra note 64. Here Posner attacks the utility of discussing Hamlet and the Constitution together rather than the view that either has a particular set of plausible meanings.

26. R. POSNER, supra note 23, at 263.

27. Cf. R. RORTY, PHILOSOPHY AND THE MIRROR OF NATURE 8-11 (1979) (arguing that standards of correct judgment differ among various disciplines and that neither philosophy nor any other master discipline can impose its own external standards on them).


29. See S. FISH, IS THERE A TEXT IN THIS CLASS? 303-71 (1980).


31. R. POSNER, supra note 1.

32. R. POSNER, supra note 23.

33. Posner, Bork and Beethoven (Book Review), 42 STAN. L. REV. 1365 (1990) (reviewing R. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF LAW (1990)).

34. See id.

35. Kipling, “The English Flag,” quoted in OXFORD DICTIONARY OF QUOTATIONS 298 (3d ed. 1979).

36. R. POSNER, supra note 23, at 240.

37. Id.

38. Id.

39. West, Adjudication is not Interpretation: Some Reservations about the Law-as-Literature Movement, 54 TENN. L. REV. 203, 277 (1987).

40. See M. SHELLEY, A DEFENCE OF POETRY (1821), quoted in OXFORD DICTIONARY OF QUOTATIONS, supra note 35, at 505. See also Samuel Johnson’s quite similar statement, “[The poet] must write as … the legislator of mankind, and consider himself as presiding over the thoughts and manners of future generations; as a being superior to time and place.” S. JOHNSON, RASSELAS (1759), quoted in OXFORD DICTIONARY OF QUOTATIONS, supra note 35, at 282.

41. R. POSNER, supra note 23, at 249. See also R. POSNER, supra note 1, at 296 (1990) (“Agreement on the meaning of legal texts may in many cases depend ultimately on force – law’s ultimate backing.”).

42. See R. POSNER, supra note 1, at 272-73.

43. West, supra note 39, at 277.

44. At the same time, we believe that an account of law which focuses only on community-enhancing or permissive aspects is equally impoverished. See, e.g., Levinson, Conversing about Justice, 100 YALE L. J. 1855 (1991).

45. Taruskin, The Pastness of the Present and the Presence of the Past, in AUTHENTICITY AND EARLY MUSIC, supra note 16, at 150 (ellipsis in original) (quoting Christopher Hogwood).

46. See Frank, supra note 3, at 1264.

47. J. GRAY, THE NATURE AND SOURCES OF LAW 170 (2d ed. 1921).

48. See Frank, supra note 3, at 1270-71. For a similar argument, see D. KORNSTEIN, THE MUSIC OF THE LAWS 108 (1982). The foreword to this book of essays, interestingly, was written by Robert Bork. Id. at 9-12.

49. West, supra note 39, at 277.

50. Id. at 207.

51. We are indebted to Richard Posner for this point.


53. Discussing Nikolas Harnoncourt’s and Gustav Leonhardt’s cycle of Bach cantatas for Telefunken records, which at that time was virtually the only example of authentic performance committed to record, the authors note that the use of boys instead of female sopranos “will undoubtedly deter some collectors.” Id. at 45. Although generally supportive of the project, the authors complain of “a certain want of rhythmic freedom” and too much “expressive caution” in the performances, so that “the grandeur of Bach’s inspiration is at times lost to view.” Id. The tendency to accent all main beats heavily, they note, is “a constant source of irritation throughout the series.” Id. at 47.


55. For example, in the middle of a highly positive review of Herman Bauman’s recording of the Mozart Horn Concertos on a valveless horn, the authors note:

We are not convinced that the playing of ‘original instruments’ always demonstrates their full expressive potential and in the case of the french horn it would seem perverse to use a valveless instrument, when a narrow bore modern horn … can sound the same, yet produce uniformity of timbre and stay in tune throughout its compass.


Id. at 682. Similarly, in the book’s introduction, the authors argue:

While it is undoubtedly valuable to have an educated opinion of what the music sounded like in the composer’s own time, sometimes considerations of scholarship – however dedicated – seem to inhibit the spirit of the music-making. Advocates of the ‘authentic’ school often seem to regard any kind of expressive licence as reactionary … .


Id. at vii.

56. See, e.g., id. at 21-24 (offering recommendations for Bach’s Brandenburg Concertos); id. at 65-67 (Bach’s St. Matthew Passion); id. at 1165-69 (Vivaldi’s Four Seasons).



58. See, e.g., id. at 22 (recommending Trevor Pinnock’s performance of Bach’s Brandenburg Concertos while suggesting alternatives “[f]or those who still cannot quite attune their ears to the style of string playing favoured by the authentic school”).

59. And, as Nicholas Kenyon reports in his introduction to Authenticity and Early Music, record companies have indeed found that authenticity sells:

[I]t quickly became clear to the record companies that the legend ‘Performed on Authentic Instruments’ was regarded as some sort of seal of Good Musical Housekeeping, and the implication of much of their activity was that the use of such instruments guaranteed or at least went some considerable way to ensuring ‘authentic’ performance. Eventually we reached the absurd situation where the American company releasing the Academy of Ancient Music’s recording of the Pachelbel Canon affixed a sticker to the disc proclaiming: ‘Authentic Edition. The famous Kanon as Pachelbel heard it.’ Those of us who had difficulty knowing what Pachelbel looked like, never mind what he heard like, had some problems with this.


Kenyon, supra note 17, at 6.


60. See, e.g., Taruskin, supra note 46, at 139 (noting that the classical music scene “has lately taken on the appearance of a ‘battlefield,’ … [and] we are fighting it out, in this book and elsewhere.”) (quoting Crutchfield, A Report From the Battlefield, N.Y. Times, July 28, 1985, at 1.).

61. Taruskin, supra note 45, at 138-39 (“One is hardly free to say, ‘I prefer inauthenticity to authenticity,’ or, ‘I prefer inappropriateness to appropriateness,’ – at least if one is interested in maintaining respectability with the crowd that swears by the Harvard Dictionary [of Music].”). Interestingly enough, Judge Posner has also criticized the “authoritarianism” of those who look to “tradition” for privileged insight into the law. See R. POSNER, supra note 1, at 448.

62. Crutchfield, supra note 19, at 19. Crutchfield reports that the opera director Frank Corsaro has even coined a phrase for the increasingly common experience of being frustrated in one’s artistic attempts by the new musicological fundamentalism: he calls it being “gesellschafted.” Id. at 20.




64. In discussing the relationship of law to music with colleagues, we have also witnessed again and again the unquestioned assumption that, unlike legal interpretation, there are really no standards for judging artistic interpretation, and that, in contrast to legal interpretation and legal scholarship, there is really no good way to say that one performance or interpretation is better, richer, or more faithful than another. We suspect that lawyers and legal scholars who speak in this way have never attended a piano competition. Indeed, the entire system of education and training for musicians is premised on the assumption that some performances are better than others. The same assumption underlies record reviews, critical reviews of concerts, and a host of other institutions that are devoted largely to sorting, judging, and evaluating musical performance and musical talent. This is not to say that people do not disagree heatedly over these matters, or that views about interpretation do not change historically; we would only point out that the same is true of legal interpretation and of legal judgments of quality in scholarship or in judicial reasoning.


We think that the exaggerated emphasis on artistic subjectivity by lawyers and legal scholars forced to confront the analogies between law and music is a projection of what are thought to be undesirable characteristics of the self onto the Other. By opposing law to art in this manner, one is able to suppress the emotional and subjective elements of legal judgment by projecting them onto the opposite, art, while simultaneously downplaying the possibility of reasonableness and impartiality in artistic judgment. See Balkin, The Domestication of Law and Literature, 14 LAW & SOC. INQUIRY 787, 794 (1989); cf. Torres and Brewster, Judges and Juries: Separate Moments in the Same Phenomenon, 4 LAW & INEQUALITY 171, 181-85 (1986) (Ideological construction of juries as “emotional” allows judges to suppress recognition of their own biases and unreasonableness.).


As this essay went to press, we came across a fascinating case that yokes legal and artistic interpretation together, and thus actually requires a legal judgment about the plasticity of artistic standards. The Tams-Witmark Music Library, which licenses the rights to the Cole Porter musical “Anything Goes,” has denied director Martin Teitel the right to stage the musical with a man in the lead role of Reno Sweeney (created on Broadway by Ethel Merman). See Shewey, Anything Goes … Well Almost, Village Voice, Apr. 23, 1991, at S2, col. 4. Previous productions on Fire Island and in Dallas were such a success that Teitel’s unusual casting was reported in the trade press, at which point Tams-Witmark objected. (Teitel has met Tams-Witmark’s action with a sex discrimination suit of his own.) Id. The standard Tams-Witmark licensing contract states that there will be “no additions, transpositions, or interpolations of any kind,” although the musical is regularly performed in a modified, edited, and reconstituted fashion without complaint. Id. Thus in practice, at least, the question may boil down to whether the proposed innovations go too far. Shewey argues that “[i]t’s patently clear that Tams-Witmark’s objections stem from homophobia, especially dismaying considering Porter’s own homosexuality.” Id. Perhaps Teitel’s alteration is no more a breach of the agreement than setting the musical in the present rather than in the 1930’s. Nevertheless, in interpreting the contract, we would think it highly irresponsible for a court to find in the director’s favor solely on the grounds that no one can tell whether or not a production is faithful to the musical’s score and book. No matter how this particular case should be decided, there must be some point at which outraged theatergoers could demand their money back on the grounds that the play promised to them had not, in fact, been performed. We thus maintain once again that legal and musical interpretation are not as different as they first appear; for in musical, as well as in legal interpretation, not anything goes.