Law, Music, and Other Performing Arts, Part II

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

II. How to Perform Music Authentically – A La Recherche du Temps Perdu(1)



To take up Kipling’s metaphor again, perhaps the best way to understand what other countries and cultures contribute to our understanding of England is to begin the journey itself. One quickly discovers that examples like Beethoven’s F-natural or Schubert’s repeats do not even begin to exhaust the many different kinds of controversies that may arise over performing the music of the (relatively distant) past. We begin, then, with the interpretation of commands in Beethoven’s Symphony No. 6 in F, the Pastorale. Consider the following exegesis, given in a booklet accompanying the compact disc recording of Beethoven’s Sixth Symphony by The Hanover Band, an English group fully committed to the task of performing music “in a form which [the composer] would recognize.”(2)

There is a certain irony in the Hanover Band’s aspiration, given that Beethoven went deaf well before the composition of the Pastorale Symphony. It becomes a zen-like question (as in “what is the sound of one hand clapping?”) to ask how one would have the slightest idea what Beethoven might “recognise” as the sound of a symphony that in fact he never heard or could hear fully, save in his own mind.

But of course the Hanover Band probably intended to produce the sonic effects experienced by Beethoven’s non-hearing-impaired contemporaries. Even if one grants the plausibility of the Hanover Band’s ambitions, their achievement is a daunting task, as illustrated by some of the issues discussed in the booklet. They include, but are not limited to, such aspects of musical performance as trying to recreate “the original orchestral sound” (which means in effect offering “an intimate, chamber music approach”), assigning to notes the pitch assigned to them in the eighteenth century, mimicking “a late 18th-century feeling for tempo,” and presenting “the dramatic address to rhythmic accent and dynamic colour which eyewitnesses [earwitnesses?] describe in Beethoven’s own performances.”(3)

Also characteristic of “authentic” performance is the Hanover Band’s emphasis on the use of “original” instruments, which can mean physical objects either originally produced at the time of composition and performance or built more recently in conformity to what is known about the instruments available at the relevant time. This means, among other things, that horns will have no valves, that pianos will produce sounds quite different from a modern Steinway, and that violins will use catgut instead of contemporary metallic strings.

The sonic effects produced by early music enthusiasts like Hogwood, Norrington, and the members of the Hanover Band are clearly different from what many listeners will be used to. For example, modern string players move their fingers slightly on sustained notes to produce a warmer tone, an effect called vibrato.(4) Early music players eschew vibrato, producing a string tone that has variously been described as sour, astringent, or vinegary.(5) Woodwinds and horns often sound out of tune, despite the best of intentions and the most skilled players. In the classical piano concerto, the pianoforte is replaced by the earlier fortepiano, which despite its name produces sounds that are more often piano than forte. Hogwood’s tempi are usually much faster than even the fastest traditional performances and display a certain rigidity, while the Hanover Band apparently believe that authenticity requires more flexible changes in tempo than those often heard in traditional performances. Above all, authentic performance produces lighter and more transparent textures in Baroque and Classical music, with a corresponding loss of weight and, some would say, grandeur.(6) The more expressive utterances – for example those in the slow movements of Mozart symphonies – tend to be downplayed,(7) and the general feeling is one of buoyancy and even lack of seriousness, or in Richard Taruskin’s words, of music that “seems ready virtually to blow away.”(8)

Do these innovations bring us closer to authentic performance, whatever that might mean? Let us begin with the insistence on using original instruments. Malcolm Bilson, an early music specialist who has recently recorded a cycle of Mozart’s piano concerti using a fortepiano, has argued not only that Mozart’s sonatas sound significantly different when played on a late-eighteenth century piano, but that a performance played on such a piano was importantly better, because more authentic, than one played on a modern Steinway. Charles Rosen disagreed, and he used Bilson’s protest as an example of the ideological nature of the “authentic” performance movement in early music.(9) Professor Zaslaw, whom we have earlier seen in a debate over repeats with Alfred Brendel, tried to mediate between Rosen and Bilson. Zaslaw argued that the eighteenth-century Stein or Walter pianos used by Mozart and the twentieth-century Steinway or Bosendorfer pianos available to Rosen “are extraordinarily sophisticated instruments, each perfect in its own way. The two types are quite different, having been consciously designed to satisfy two very different aesthetics. Each can do things that the other, with all the good will, musicianship, and brilliant pianistic techniques in the world, cannot do.”(10)

Rosen responded, however, that Zaslaw’s attempted reconciliation still subscribed to the “erroneous and anachronistic assumption that the conception of an eighteenth-century work was identical with the sound we think the composer expected to hear.”(11)

He particularly took exception to Zaslaw’s statement that both the Stein and Steinways are “each perfect in their own way,” responding that “there are aspects of the music of Stravinsky, Bartok, Boulez, and Carter that can only be imperfectly realized on a Steinway. I see no reason to accept a claim of perfection on behalf of the Stein.”(12) To the extent that anyone believes that a Stein is “perfect” for the performance of Mozart, Rosen argued, “that is only and tautologically because Mozart is to them what he sounds like on a Stein.”(13) To believe that the Stein was “really so ‘perfect’ for Mozart” would presumably require that one believe as well that “the greater sustaining and singing power of the new pianos made soon after Mozart’s death would be a falling-off from this absolute state.”(14) Rosen freely concedes that “the ‘improvements’ in construction entailed a loss of certain tonal qualities as well as a gain of others. Zaslaw’s position, however, implies that all the changes be seen as nothing but a loss and a degeneration from the ideal sound.”(15) Zaslaw’s assertion that Stein pianos were “ ‘consciously (and successfully) designed to satisfy’ an aesthetic” is dismissed as “a naive claim that ignores conflicting aesthetic ideals and all manner of mechanical problems that stand in the way of constructing pianos.”(16)Rosen thus accuses Zaslaw (and Bilson) of being committed to a notion that there is one best way of presenting Mozart, and he writes a sentence that certainly should strike a familiar chord in anyone familiar with equally acrimonious disputes in the world of legal interpretation: “Multiple possibilities of realizing a musical text are a basic tradition of Western music… .”(17)

But deciding on what kinds of instruments to play is only the beginning. One must also decide on the numbers of instruments, which can obviously make a significant difference in terms of volume, tonal balance, and the like. Yet Harold Schonberg notes that “[o]ften Bach, like most other composers of the time, did not specify instrumentation, and he would use whatever was at hand.”(18) What explains this? The answer is that, “[u]ntil Haydn and Mozart came along – and, indeed, for many years later outside of the big European cities – the orchestra was altogether a flexible affair” in terms of the numbers of particular instruments represented and, of course, the quality of the particular players.(19) Thus a specific “composer’s orchestration depended upon the groups involved,” and, indeed, “[o]rchestration would be adapted to fit the needs of individual players.”(20) There is no proof that previous composers expected that later generations would confine themselves to the same size orchestras they were forced to accept. Roger Norrington’s attempt to achieve an authentically sized orchestra for his performance of Berlioz’s Symphonie Fantastique based on 1830 Paris models is particularly troublesome in this respect; if there is one thing we know about Berlioz, it was that no orchestra was too large for his tastes.(21)

The Hanover Band is considerably smaller than most contemporary orchestras, with a far greater emphasis on the woodwinds. The reason, of course, is that this reflects the orchestras found in Vienna at the end of the eighteenth century. The members of the Band are directed not by a conductor standing on a podium, as is contemporary practice, but rather “either from the violin or from the keyboard as is in keeping with the period and according to the repertoire.”(22) We are told, no doubt accurately, that “Beethoven directed many performances from the fortepiano added by propulsive internal direction given by the first violin.”(23) What was good enough for Beethoven should, presumably, be good enough for Bernstein, at least if one’s goal is fidelity to the former. It does not appear, though, that any early-music enthusiasts adopt the practice of early conductors who kept time by loudly beating a stick on the floor so as to be heard by the members of the orchestra.(24)

“The matter of pitch,” we are told, “is crucial to a faithful reconstruction.”(25) Today’s “standard pitch” sets the A above middle C at 440 cycles per second. The Hanover Band, after much research, adopts “an A sounding at 430 cycles per second.”(26) Not surprisingly, such differences in pitch produce somewhat different sounds. It is worth mentioning in this context what is perhaps the reductio ad absurdum of this striving for historically-informed reproduction of sound. In Christopher Hogwood’s recording of Beethoven’s Third Symphony, the Eroica, he purports to recreate the initial performance of the music by “a very powerful company (consisting almost entirely of amateurs).”(27) Thus the performance features, among other things, the “uncomplicated, rhythmical” approach found in amateur performances even in the present.(28)

If the first performance of the Eroica was mediocre, Hogwood seems to be arguing, well then, that is the price one pays for authenticity.

If the aural picture historically experienced by the work’s first audience is the true test of authenticity, it is difficult to know whether Hogwood’s suggestion is to be dismissed out of hand or fervently embraced. Indeed, one might go even further in the reconstruction of the exact sounds produced at the premieres of the Beethoven symphonies. Instruments used during the late eighteenth century were often out of tune, especially as the performance progressed, because of the limitations of the stings used at the time, for example. Presumably, then, it would violate the “rule of recognition,” as adopted by the Hanover Band or by Hogwood, to play the music consistently in tune, as that is a distinctly “modern” expectation, based on subsequent developments in the technology of musical instruments.(29)

Emphasis on recreating the actual conditions of performance, finally, leads one to ask whether recordings proclaiming such “authenticity” should not include coughs, wheezing, and other sounds that were undoubtedly heard in Viennese drawing rooms and concert halls during the playing of the music. At some point one crosses the line that separates scrupulousness from absurdity, but unfortunately one’s confidence in the ability to locate that line has been seriously undermined by Hogwood’s and the Hanover Band’s pronunciamentos.

Of course, not everyone agrees with the Hanover Band’s approach to correct interpretation. And indeed, the authors of Authenticity and Early Music are united primarily by their skepticism, if not outright hostility, to the ideology revealed in the Hanover Band booklet. For these writers, Proust’s title(30) should undoubtedly be translated to emphasize the “lostness” of the past and, consequently, the inability to present a performance today that could meaningfully replicate earlier performances. All of them would agree with Robert P. Morgan’s observation that “we cannot re-create the ‘aura’ of the original (to borrow Walter Benjamin’s useful term), no matter how hard we try.”(31) Difficulties concerning the maintenance or manufacture of “original” instruments or the “proper” pitch of C are only the beginning. Thus, writes Morgan, “[p]erhaps even more critical … than original performance inflections is the deeper context in which the works were originally experienced – their status as integral components of a larger cultural environment that has disappeared and is fundamentally irrecoverable.”(32) Morgan offers as “only the most obvious” example that much “early music was not intended to be performed in concert.”(33) To take another example, Bach composed his masses and his religious cantatas to be performed in church as part of the devotional exercises of committed Lutherans.(34)

Perhaps the best way of understanding the problem is by pondering a recent promotional advertisement offered by an Austin, Texas public radio station promising a performance of a Bach mass “just as Bach would have heard it.” This advertisement was presumably directed to people eating dinner in their homes, to others working at their places of business, and to still others driving in their cars. The idea that if we wish to recapture the “authentic” experience of Bach or Beethoven all that is necessary is to pop a tape of Hogwood into our car stereo as we speed down interstate 35 seems increasingly preposterous the more that one thinks about it. Moreover, the very idea of recorded music that can be purchased as a commodity in stores (the St. Matthew Passion – on sale now for only $3.99!) – and can be played over and over again at our whim – is completely foreign to the phenomenology of musical performance in Bach’s time, and indeed, of all musical culture until well into the twentieth century.(35)

As Morgan writes, “if we take the notion of context at all seriously, we are left with the painful realization that any concert performance of this music constitutes a basic perversion of its original intentions.”(36) What he terms “[t]he authentic function of the music,” an interesting term for him to adopt, “is lost to us and cannot be reconstituted. As soon as we place these works in a museum, we wrench them out of their own frame and utterly transform their original meaning.”(37) Morgan concludes his essay by accusing the authenticity movement of “plac[ing] older music in a museum,” which, he goes on to note, is an essentially “modern invention,”(38)

created precisely at the moment in our culture when we recognized the ineluctable pastness of the past and thus felt the necessity to preserve what was no longer part of our living experience in an antiseptic environment suitable for distanced observation.

Morgan draws a contrast between placing early music in the equivalent of a museum and treating it as part of an ongoing tradition. Ironically enough, a living tradition involves participants who feel (and this word is used advisedly) comfortable engaging in their own interpretations, their own transformations of the materials that constitute their identity. What allows one, for example, to consider him or herself a “traditional” Jew is surely not some fantasy that one is doing exactly what was done 3000 years ago in ancient Israel, but rather a felt confidence that one is participating as the latest member of a recognizable way of life whose transhistorical identity has endured whatever the surface changes. Few traditions assume stasis as the operative condition of life.

As Will Crutchfield writes, “[o]ne of the unthought-of things the great composers assumed, wanted, and needed was the conviction and passion of great performers,”(39) who would offer their own emendations of the composer’s score. Exemplifying Crutchfield’s point is the distinguished theater and opera director Jonathan Miller, who writes of his hope “that by the first night a performance has emerged that has the possibilities of an enormous amount of spontaneous growth and amplification” generated by the performers themselves.(40) He mentions his delight, upon seeing a particular performance of Rigoletto that he had directed for the English National Opera, in discovering a host of “things that I had never seen before and never asked them to do.” Indeed, “Whenever I have gone back to watch Rigoletto I have been delighted to find that it is a truly emergent production,”(41)

a collaborative relationship among composer or playwright (who may, of course, be long dead), director, actors and singers, and audience.

For most of us, this notion of living tradition is most obvious in popular music. What makes Thelonious Monk’s Round Midnight a true “classic” of jazz is most certainly not its ability to be endlessly re-presented in a single canonical note-for-note form, but rather its ability to serve as the basic setting for creations by other great musicians. Even if one exempts jazz from the discussion due to its deliberately improvisatory form, one can find much the same idea of a living tradition in performances of pop, soul, and rock music. One might also adopt, as Jonathan Miller does in his discussions of the interpretation of plays, Noam Chomsky’s distinction between the deep and surface structures of grammar. In Miller’s words, “there are an infinite series of sentences, all of whose surface structures are different but that can nevertheless express the same deep structure.”(42) It is therefore altogether possible (and legitimate) that “an enormous variety of actual performances” can be faithful to the underlying deep structure of the particular piece that is being interpreted.(43)

Nevertheless, (and, we might add, alas), there are popular musicians who themselves are increasingly indicating disdain for those who ostensibly “ ‘distort[ popular music] in all kinds of insidious ways that are losing track of [the composer’s] original authentic sound.’”(44) Morgan is quoting a “bright young star” of the New York cabaret scene, Michael Feinstein, who has produced an album which “attempts a re-creation of Gershwin’s popular songs in their original form,” using original orchestrations and texts.(45) Morgan fumes: “This from, of all things, a cabaret singer – a type traditionally committed to extremely personal, even blatantly idiosyncratic stylizations.”(46) Feinstein’s album is entitled, as might be expected, Pure Gershwin. The work of cultural anthropologists may be particularly helpful in understanding what lies behind the use of the “pure” in such settings.(47) To label those whose interpretations differ from one’s own “impure” is no small rhetorical feat. Indeed, it is structurally similar to describing one’s opponents as “heretics.”(48) Such language suggests the smell of the auto-de-fe rather than a willingness to acknowledge the legitimacy of competing perspectives. As Morgan observes with regard to Feinstein’s ambitions, “[a]pparently it is no longer Mabel Mercer’s or Bobby Short’s Gershwin we want [or will even tolerate as an acceptable possibility], it is some sort of reincarnation of Gershwin himself.”(49) To switch back to “classical” music, it is no longer Leonard Bernstein’s or the New York Philharmonic’s Beethoven we should want, but rather the Hanover Band’s reincarnation. Such an approach, ironically enough, seems not only to embalm a tradition, but to be unfaithful to what is historically known about “original” performance practice, which allowed, indeed celebrated, improvisation.(50)

Richard Taruskin is perhaps the most polemical (and entertaining) of the opponents of the authentic performance school, which he rechristens “authenticistic.”(51) His essay, “The Pastness of the Present and the Presence of the Past,” casts scorn upon almost all of the claims suggested or implied by the proponents of “authenticity” in early music. Thus, as against the comment by one writer that “an ideal performance is one that perfectly realizes the composer’s intentions,”(52) Taruskin responds that “[w]e cannot know intentions, for many reasons – or rather, we cannot know we know them.”(53) In Taruskin’s view, “ ‘once the piece is finished, the composer regards it and relates to it either as a performer if he is one, or else simply as a listener.’”(54) As for fidelity to text, he quotes the composer George Perle’s view that “[t]he greatest single source of bad performance … is literalism … ‘It’s what you expect nowadays.’”(55)

Taruskin also joins most of his fellow essayists in criticizing the historical tendentiousness of many of the “authentic performance” devotees. He argues that many early music performers are simply imposing their own aesthetic preferences under the guise of “authentic” performance practices. He gives the example of David Wulstan’s performances of Renaissance choral music, which attempted to “ ‘obtain as nearly as possible the sound of the great English Sixteenth Century Choirs.’”(56) After some experimentation with the traditional men-boy choirs, Wulstan switched from boy trebles to women, arguing that “’[b]ecause boys’ voices now break early, they tend to find the high vocal parts … overtaxing: with proper training, however, girls’ voices can produce exactly the right sound.’”(57) This seems a perfectly plausible accommodation until Taruskin points out that Wulstan (like everyone else alive today) had never heard the sound of a “great English Sixteenth Century Choir.”(58)

Authentic performance, Taruskin argues, is really the imposition of a post-Stravinskian modernist aesthetic to the music of the past. It is a creation of our own times, satisfying modern aesthetic preferences which are nevertheless justified and even sanctified by claims of historical accuracy.

Interestingly, Taruskin does not condemn per se the practice of making Mozart and Beethoven sound like Stravinsky; he objects, rather, to the claim that this modernization of sound is in fact authentic, and the related claim that this “authentic” practice is the only permissible way to perform early music. Taruskin at last reveals himself to be both a pluralist and a pragmatist in matters of musical performance. The test of an artistic interpretation for him, presumably, is whether it “works” aesthetically – whether it produces a pleasing a satisfying experience to the persons of our own era.(59)

We have purposely forborne from pointing to all of the obvious affinities between the arguments made (and attacked) by those interested in the performance of early music and those made by legal analysts concerned with how one should engage in legal performance. A statute or a constitution is, indeed, not a poem; it is designed to structure other people’s behavior in certain important ways. But, then, so is the score of a symphony or the text of a play. And the word “structure” is purposely elusive, leaving open the possibility that the particular passions (and, dare we say, political commitments) of the gifted performer might have as much to do with the performance possibilities she chooses as some impossible fidelity to purportedly timeless and acontextual commands contained in the texts. Authenticity and Early Music should thus be of interest to anyone interested in problems of legal interpretation.

But that is only one of the reasons for suggesting that a law-and-music scholarship can complement the already flourishing genre of law-and-literature. Perhaps more important than recognition of the affinities of interpretive dilemmas generated by having to work with texts, as important as that recognition may be, is the insight provided into more general issues of cultural development.

1. We allude here not only to the title of Proust’s epic example of twentieth century modernism, but to the implications of the different English translations offered in its stead. The standard translation is In Remembrance of Things Past. Vladimir Nabokov, among others, has preferred the more “literal” In Search of Lost Time. See V. NABOKOV, LECTURES ON LITERATURE 208 (F. Bowers ed. 1980). The two titles have quite different implications. We believe that the debates over “authentic” musical performance turn on whether one can truly recover the past or whether one must realize that those times are irredeemably lost, and the concomitant necessity of recognizing that we live exclusively in our own time, separated and alien from the past.


2. C. BROWN, THE HANOVER BAND (1988) (pamphlet accompanying compact disc version of Beethoven’s Symphony No. 6 ‘Pastoral’ (Nimbus Records 1988)).


3. Id.



5. One of the most amusing aspects of the reviews in The Penguin Guide to Compact Discs is their constant assurances to readers that the strings in their recommended authentic performances do not sound half as bad as one would expect. See, e.g., GUIDE TO DISCS, supra note 57, at 299 (“Collectors fearful of the vinegary tone often produced by period violins will find their ears beguiled by sounds of great beauty.”); id. at 29 (“Kuijken … shows that authentic performance need not be acidly over-abrasive.”); id. at 23 (describing Pinnock’s performances as “not too abrasive”); id. at 35 (“[T]hese accounts [of Bach solo violin music] are as little painful or scratchy as you are likely to get in the authentic field.”).

6. See, e.g., id. at 447 (reviewing Trevor Pinnock’s performance of Handel’s 12 Concerti grossi, Op. 6).

7. See, e.g., id. at 682-83 (reviewing Hogwood’s performances of the late Mozart symphonies).

8. Taruskin, The Pastness of the Present and the Presence of the Past, in AUTHENTICITY AND EARLY MUSIC, supra note 16, at 188.


9. See Rosen, N.Y. REV. BOOKS, Nov. 8, 1990, at 60 (replying to letter by Malcolm Bilson).

10. Zaslaw, N.Y. REV. BOOKS, Feb. 14, 1991, at 50 (letter to the editor).


11. Rosen, N.Y. REV. BOOKS, Feb. 14, 1991, at 50 (responding to Zaslaw’s letter in the same issue).


12. Id.

13. Id. (emphasis in original).

14. Id.

15. Id.

16. Id.

17. Id.


18. H. SCHONBERG, supra note 2, at 29.

19. Id. at 28.

20. Id.

21. See id. at 113-14 (describing Berlioz’s ideal orchestra of 465 instruments and a 360 person chorus).


22. C. BROWN, supra note 66.

23. Id.

24. See H. SCHONBERG, supra note 2, at 26, 28.


25. C. BROWN, supra note 66. On pitch, see Fantel, Equipment That Plays in the Key of Flexibility, N.Y. Times, Aug. 26, 1990, at 26, col. 1. Fantel, who writes about “sound” for the New York Times, notes that “Beethoven’s notion of C differs from ours,” and goes on to observe not only that “[t]oday’s performances, adhering to the modern convention of ‘standard pitch,’ take no account of this,” but also the fact that compact disk players generally do not allow the listener to adjust the pitch of a recording. Id. The market has recognized this defect, though, and it is now possible to buy CD players that “are capable of tuning the music up or down by as much as a whole note.” Id. Fantel somewhat naively suggests, however, that the listening public might “leave the matter of pitch strictly in the hands of the performers.” Id. The members of the Hanover Band would respond, though, that most performers cannot be trusted, that only they are presenting the authentic Beethoven experience.

26. C. BROWN, supra note 66.

27. Hogwood, Hogwood’s Beethoven, THE GRAMOPHONE, Mar. 1986, at 1136, quoted in Taruskin, supra note 45, at 140.

28. See Taruskin, supra note 45, at 141 (quoting Clive Brown, notes to Oiseau-Lyre 414338).


29. This is by no means a fanciful concern. We normally expect top-flight modern symphony orchestras to play in tune, but our expectations about what “in tune” performance consists in depends upon several factors, including the invention of horns with valves and the universal adoption of the even tempered scale in the nineteenth century. To preserve acoustically pure intervals in one key necessitates that some intervals in other keys will deviate from acoustic perfection, and the more harmonically distant the key, the greater the disadvantage. See THE NEW HARVARD DICTIONARY, supra note 68, at 422, 837-38. Different methods of “tempering” or slight adjustment of the scale to compensate for this problem were devised and employed during the 1600s and 1700s. The title of Bach’s Well-Tempered Clavier refers to one such method, no longer used today. See id. at 838. Eventually, the equal temperament approach gained dominance, but this temperament is not necessarily the same one originally used when early music was first performed. See id. at 624, 838. Valveless horns of the type used in Beethoven’s era play notes that do not precisely match an even tempered scale, see id. at 364, 380, and thus performers must use various devices (such as partially closing off the bell of the horn with the right hand) to approximate the correct pitch. See id. at 381. Some out of tune performance on original instruments is also due to the performer’s inability to control various aspects of the instrument, for example the gradual loosening of the sounding strings on early stringed instruments or pianos.


30. See supra note 65.

31. Morgan, Tradition, Anxiety, and the Current Musical Scene, in AUTHENTICITY AND EARLY MUSIC, supra note 16, at 71.

32. Id.

33. Id. In the classical and Romantic periods, chamber and solo instrumental music would usually be performed in the home or at small social gatherings. See Rosen, supra note 4, 75, at 50; Holland, Heard the One About the Madcap Trill?, N.Y. Times, Apr. 7, 1991, at 25, col. 1 (“[A] lot of music we now listen to silently was written for noisy dinner parties.”) (interview with Alfred Brendel).

34. See Taruskin, Facing Up, Finally, to Bach’s Dark Vision, N.Y. Times, Jan. 27, 1991, at 25, col. 1.


35. See W. BENJAMIN, The Work of Art in the Age of Mechanical Reproduction, in ILLUMINATIONS 217-251 (H. Zohn trans. 1969).


36. Morgan, supra note 95, at 71.

37. Id.

38. Id. at 81.


39. Crutchfield, supra note 19, at 25.


41. Id. at 118.


42. Id.

43. J. MILLER, supra note 104, at 118. Having introduced Chomsky into the discussion, we hasten to distance ourselves from any commitment to the general structuralist program that Chomsky is famous for (and that Miller is adopting). Post-structuralist critiques, after all, have argued forcefully against the notion of unique and identifiable deep structures that provide the kind of baseline that Miller strongly endorses to constrain interpretive license. One might respond to Miller’s distinction by wondering whether continuous changes in surface over time might lead to what everyone would admit were really profound changes in structure. If the evolution of Rigoletto continued apace for ten years in his absence, Miller might well discover, upon his return, that the cumulation of so-called “surface alterations” had made his original artistic conception virtually unrecognizable. Cf. Balkin, Constitutional Interpretation and the Problem of History (Book Review), 63 N.Y.U. L. REV. 911 (1988) (discussing cumulative effects of commerce clause decisions). Similarly, the history of jazz music has demonstrated that the original notion of variations in melody, while preserving “deep” harmonic structure, eventually led to substituted harmonies in the be-bop era, the adoption of improvisation on modal scales in lieu of harmonic structure in the work of Miles Davis’ first quintet, and finally to Ornette Coleman’s “free jazz.” M. GRIDLEY, JAZZ STYLES 40, 44, 51, 120-22, 177-78, 195-201 (1978). For a general discussion, see J. COLLIER, THE MAKING OF JAZZ: A COMPREHENSIVE HISTORY (1978).



44. Morgan, supra note 95, at 78 (quoting Holden, Cabaret’s Bright Young Star, N.Y. Times, June 29, 1986, § 6 (Magazine), at 33, col. 2).

45. Id.

46. Id.

47. See, e.g., M. DOUGLAS, PURITY AND DANGER: AN ANALYSIS OF CONCEPTS OF POLLUTION AND TABOO (1978) (describing the cultural construction of “impurities” that must be suppressed).

48. See R. BORK, supra note 33, at 4, 11 for just such a denunciation of opponents.

49. Morgan, supra note 95, at 78.

50. See Brett, Text, Context, and the Early Music Editor, in AUTHENTICITY IN EARLY MUSIC, supra note 16, at 106-07.


51. Taruskin, supra note 45, at 148.

52. Id. at 138 n.8 (quoting Grant, On Historical Authenticity in the Performance of Old Music, in ESSAYS ON MUSIC IN HONOR OF ARCHIBALD THOMPSON DAVISON 341 (1957)).

53. Id. at 145.

54. Id. at 147 (quoting Taruskin, On Letting the Music Speak for Itself: Some Reflections on Musicology and Performance, 1 J. MUSICOLOGY 340 (1982)).

55. Id.


56. Id. at 144 (quoting Chislett, notes to Seraphim LP 60256 (works of Tallis)).

57. Id. (quoting Chislett, notes to Seraphim LP 60256 (works of Tallis)).

58. Id.


59. See id. at 204-07.