Originally published in 139 U. Pa. L. Rev. 1597 (1991).
Copyright 1991 J.M. Balkin and Sanford Levinson. All Rights Reserved
IV. Legal Modernism and the Pursuit of “Authenticity”
What we have called legal modernity, like so much else in American law, can already be seen in the thought of Oliver Wendell Holmes, and in particular in his most iconoclastic work, The Path of the Law,(1) an essay which, almost 100 years after its presentation, still contains the power to startle.(2) Although The Path of the Law has many themes, one of its most striking is its author’s attitude towards history and tradition. “[I]f we want to know why a rule of law has taken its particular shape, and more or less if we want to know why it exists at all,” argues Holmes, “we go to tradition.”(3)But one does not study history and historical doctrine for the purpose of veneration. Quite the opposite, for the understanding that a rule is historical “is the first step toward an enlightened scepticism, that is, towards a deliberate reconsideration of the worth of those rules.”(4) In a truly remarkable metaphor, Holmes tells us that “[w]hen you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws and see just what is his strength.”(5) Perhaps reflecting the origins of Holmes’s own modernist thought in the maelstrom of the Civil War,(6) he makes clear that examining the “dragon” of historically-rooted rules “is only the first step. The next is either to kill him, or to tame him and make him a useful animal.”(7) This stunning imagery precedes the well-known Holmesian injunction that “[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”(8) And for Holmes “[i]t is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”(9) The liberating cure is to reject “antiquarianism” and instead to become the student of economics and statistics. Thus, in a famous phrase, Holmes asks us to wash our traditional beliefs about law and legal traditions in “cynical acid.”(10)
The modernism of Holmes is not the modernist anxiety of Schoenberg, who feels the past slipping away and must strive to regain it and follow its commands. It is rather the modernism of Stravinsky, for whom the past is an alien thing, to be used instrumentally in future compositions. The very comparison of history to a monster suggests that the past has already become strange to us, that we have already begun the process of detachment and separation. Another great modernist, James Joyce, speaking through the character of Stephen Daedelus, wrote of history as a nightmare from which he was trying to awake.(11) Whether Holmes would have gone quite that far, there can be no doubt that he had only disdain for those who put their faith in history and its “teachings” without reflection about the value and cogency of those purported lessons. The purpose of studying history is not to revere it, but to analyze it – to show it “in the daylight” and “count [its] teeth and claws.”(12) And this analysis can only proceed, as Morgan points out, “when the current moment … loses its ability to cast its own peculiar colouration on the past [so that one] is able to look upon the past with such detachment and objectivity.”(13) In The Path of the Law, the legacy of the past is now described as “dogma,” itself a word richly redolent of Protestant reformers’ critique of the encrusted traditions of the Church they sought to overthrow.(14)
The theme of detachment from the legal tradition is also clear in Holmes’s call for a social scientific approach. If the legal tradition is a dragon, we are no longer its subjects. Rather, we are to become zoologists, whose purpose is to study and even dissect the creature. The “man of the future” is a social scientist because the goal of legal study has moved from exposition and interpretation of legal texts and doctrines to the study of law as a social phenomenon. “It is perfectly proper,” as Holmes pointed out in his essay Law in Science and Science in Law, “to regard and study the law simply as a great anthropological document.”(15)
An anthropologist, unlike the native, observes the culture from a psychic distance rather than participating in its beliefs and performing its rituals unself-consciously.
Finally, Holmes’s iconoclasm is consistent with another way of looking at the experience of modernism – as a perceived conflict between reason and tradition, a tension which manifests itself, for example, in the conflict between the search for truth through rational inquiry and the need for faith in the teachings of revealed religion.(16)
Holmes makes quite clear that he reconciles this conflict in favor of what he perceives to be reason – in this case the instrumental reason of fitting means to ends – and against received dogmatic tradition. The future of the law is as the servant of reason, which for Holmes is nothing more than rational calculations designed to achieve most effectively what the community wants.(17)
The inefficacious dogmas of the past, on the other hand, are to be eliminated as much as possible.
To be sure, the modernity we find in Holmes is not yet full – fledged. There is an undercurrent of optimism in these remarks that bears neither traces of anxiety about what is slipping away nor doubts about the efficacy of the scientific approach. One could well write an article on “Holmes’s last paragraphs,” the conclusions to his otherwise pessimistic and sometimes even savage remarks that suddenly transform the occasion into one of hope and (relative) optimism about one’s place in the world. Thus The Path of the Law concludes by Holmes telling his audience that through the analysis of the “remoter and more general aspects of the law you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.”(18) Whether a remnant of his grandfather’s Calvinist sensibility or a continuing reflection of the influence of Ralph Waldo Emerson’s transcendentalist faith in the ultimate resolution of all apparent tensions and contradictions,(19) there is little of the more contemporary sense of intellectual anxiety about the lack of even a “hint” of some unified perspective of the world. Nor is there any sense of irony about the situation that Holmes finds himself in; it does not occur to him that historicizing the work of previous judges calls into question whether his own work is simply another form of “dogma,” to be treated as such by a later generation capable of placing him in a discrete historical setting and recognizing his own blindness and lack of insight.(20)
Nevertheless, the seeds of legal modernity are clear enough in The Path of the Law. It was therefore entirely fitting that Jerome Frank would see Holmes as a model in his appropriately titled book Law and the Modern Mind.(21) Frank’s veneration of Holmes is characteristic of the further development of legal modernity we find in the work of the Realists. The Realists are commonly thought to have launched an attack on the autonomy of law and legal reasoning. But the autonomy of law is of at least two types. The first is the autonomy of law from politics or social beliefs. The second, and equally important sense of autonomy is the autonomy of law from other disciplines, which generates a faith that discrete “legal” methods of analysis will be sufficient to solve legal problems.(22) Because legal decisions might be better explained by the study of social forces than by the results of doctrinal argument, and because legal issues need the expertise of the economist or sociologist, “the man of the future,” as Holmes puts it, must be acquainted with social science.(23)
With the rise of legal realism, new forms of legal scholarship emerge. Previously, the goal of much legal scholarship had been to explicate or interpret existing law, to offer the best interpretation of legal materials through traditional forms of doctrinal argument. The rise of realism brings with it an additional goal – to suggest policy based reasons for development of legal doctrine in one direction rather than another, even if these policy based reasons are not suggested or implicated by the language of existing legal materials. The realist approach begins to separate the goals of scholarship from those of the bar, although eventually the practicing bar would assimilate the approach of “going beyond the cases,” at least in part.(24)
A second and more significant development is the attempt to study law as a social artifact, as Holmes’s “great anthropological document.” The result is a scholarship where one studies the behavior of lawyers and judges, not to further or contribute to their interpretive enterprise, but rather to study the enterprise itself. The most extreme example of this approach is Herman Oliphant’s suggestion that scholars might dispense with the study of doctrine altogether and investigate instead the effects that certain “stimuli” (i.e., facts) had on the “responses” (i.e., opinions) produced by judges.(25)Oliphant’s behaviorist approach to legal scholarship, while not universally adopted by the realists, is nevertheless characteristic of a new sense of detachment from the practice of law. The legal scholar has, to a large degree, left the tribe and become an anthropologist. We normally think of realism as the study of “law in action” and thus a movement closer towards what the law “really is.” Yet this very goal ironically produces a separation or estrangement between the student and the thing being studied. “Objectivity” requires that the member of the tribe no longer take at face value the natives’ explanations for what they are doing. Dispassion requires distance. One cannot pour cynical acid on one’s own skin.(26)
Modernity has had a lasting legacy on the forms of legal scholarship in at least three respects. The first is the self-consciously interdisciplinary character of legal scholarship. This essay is no exception. A second is the increasing amount of scholarship, especially in the elite journals, that is about other legal scholarship, rather than about primary legal materials like statutes and cases. Legal scholarship becomes an increasingly self-contained, self-referential discipline, which is “about itself” as much as it is about the legal world outside, either law on the books or law in action. As interdisciplinary movements like law and economics or law and literature spring up, they begin to focus not on their relationship to the work of lawyers and judges, but to their own internal coherence and justification. Legal interpretation is replaced by legal theory, which is replaced by meta-theory, which is replaced by meta-meta theory, and so on.
The third feature is the fragmentation of legal scholarship into new genres such as feminist scholarship, critical legal scholarship, or law and economics. As a result of this fragmentation, it is increasingly difficult for lawyers and legal academics to agree on what good legal scholarship is and how to evaluate it. To some extent, this was always true, as soon as legal scholarship specialized into different subject matters like pleading, property, trusts, and so on. Yet there was a feeling that good legal reasoning transcended doctrinal boundaries, and that the reasonably intelligent contracts professor could recognize it in the work of a colleague who wrote about equity or the law of agency and partnership. The creation of “genres” of scholarship, like law and economics or feminist jurisprudence, which cut across traditional legal departments and categories, undermines such confidence today. Both fields are highly specialized with separate canons; they have very different intellectual approaches and scholarly goals which may, in some instances, be mutually critical of each other. Giving a piece written in one genre to a person who specializes in another may produce consternation, and perhaps even outright rejection.
The idea of a common language and a common vocabulary among legal academics, and indeed, a common canon of legal materials, has increasingly become a fiction. There is now an identifiable group of scholars who have read A Jury of Her Peers(27) or The Critical Legal Studies Movement(28)and consider them canonical texts. Other scholars may not have heard of either of these works, much less consulted them. Still others, having heard of them, may view them as, at the least, “outside” the law or, indeed, dangerous to the enterprise of law. Robert Morgan’s fear that today “we no longer have a [musical] culture of our own,” and that such culture as we do have has become “a patchwork of disconnected fragments snatched from here, there, and everywhere,”(29)
is easily translatable to legal culture. Faced with this Heraclitian whirl of flux and discontinuity in the legal academy, some may be tempted to form authentic performance-of-legal-scholarship movements with a concomitant attempt to delegitimize those they now perceive as contributing to the flux.
As these comments suggest, there is much work to be done in exploring what modernity means for American legal culture. But it also seems clear that the study of the effects of modernity on legal culture requires us to have a point of comparison in other aspects of culture with which our self-identity is not so bound up. The anthropological study of law, in Holmes’s time as in our own, requires a form of distancing. One reason to study the effects of modernity in music is precisely because of its distance from law and from our own everyday experiences as lawyers and legal scholars. It is that very distance which allows us to see comparisons within our own discipline that might otherwise go unnoticed or underemphasized. For the student of legal modernity, then, a trip beyond our own cultural moorings may well be not only a helpful but even a necessary tool of research.
V. Conclusion: Law, Music, And Other Performing Arts
Felix Frankfurter described as “the single most important utterance in the literature of constitutional law”(30) John Marshall’s admonition that “it is a constitution we are expounding.”(31) Equally important is Marshall’s insistence that the Constitution be interpreted so as to “endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”(32) It has always been feared, though, that too much “adaptation” would mean not the endurance, but rather the death of the Constitution. Yet how is one to tell the difference? Only half in jest do we announce that the subtext of this review is the question whether the performance of constitutional interpretation is better analogized to the Hanover Band’s version of the Pastoral Symphony or to a jazz improvisation on Thelonious Monk’s Round Midnight.(33) We do not mean to suggest that the choice must be exclusively between these two alternatives. Many other musical analogies might be suggested as well. We do mean to suggest that asking such questions – and wrestling over the answers – helps to illuminate the enterprise of constitutional analysis, including the particular problems posed by this enterprise for those who must confront the profound impact modernity has had on our political and legal culture.(34)
It is often our proudest boast that we in the United States live within the embrace of a constitutional tradition whose origins we can locate and whose continuity we can celebrate even two centuries later. Yet, as we have seen, explaining what it means to adhere to a tradition, particularly in an age of modernist self-consciousness, is itself an extraordinarily difficult assignment. Although tradition seems to imply stasis as much as modernity implies change, in fact, as Roxana Waterston points out, “ ‘tradition’ really describes a process of handing down, and as such is just as dynamic and as historical as any other social process.”(35) Yet the abstract ideals of fixed tradition and mutable modernity are simultaneously motivating factors in this dynamic of change. Thus “[t]radition, like history, is something that is continually being recreated and remodelled in the present, even as it is represented as fixed and unchangeable.”(36)
Perhaps the best illustration of the belief that we are participating in a living tradition is found in Justice John Marshall Harlan’s well-known analysis of the meaning of “substantive due process” in Poe v. Ullman.(37) Harlan looked to the “balance [between the liberty of the individual and the demands of organized society] struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing.”(38) Interestingly, Harlan’s description of a “living” tradition explicitly involved both continuity with and alterations of previous tradition.(39) It is perhaps no coincidence that Robert Bork, the self-styled apostle of “original intent,” describes Harlan’s arguments as “entirely legislative” and denounces the opinion as simply a way station toward the “intellectual catastrophe” of Griswold v. Connecticut.(40)
We believe that in Poe, as elsewhere, Harlan showed himself to be a quintessential performer of constitutional law. Another major theme of this review is the importance of grasping the performative aspect of engagement with the law. This is obvious in the case of a judge, but it is present as well in the acts of a vigorous public critic of judges, such as Robert Bork.(41) Insofar as law is a performative art, insight can be gained from looking at performance practices (and theory) in other arts.
Thus, we believe that legal scholars have something to learn from Jonathan Miller’s views on the challenges facing anyone called upon to direct a play, and in particular his attack on the notion “of the primary status of the text … as a literary work.”(42) Those who hold such a view, he suggests, believe
that in some peculiar way the play is at its very best when read quietly by the informed reader, who somehow manages to dramatize in his or her imagination a performance that is more congruent with the intentions of the author than any particular performance could ever be, and all performances then represent a lapse from this ideal state.(43)
Though there may be an important sense in which “great plays can be said to exist without being theatrically performed,”(44) one would wonder “why a writer had chosen to cast his ideas in the form of a play at all”(45) inasmuch as the conventional meaning assigned the genre “play” includes performance.(46) “I cannot deny the fact that each time a play is staged the production is inevitably a limited version of the range of possible interpretations,” but, nonetheless, “the destiny of a great play is to undergo a series of performances each of which is incomplete, and in some cases may prove misleading and perverse.” Still, “[b]y submitting itself to the possibility of successive re-creation, … the play passes through the development that is its birthright.”(47) Miller’s analysis applies to music as well. Although it is surely possible to read a music score and to construct an “ideal” performance in one’s mind, this is surely not the conventional practice of experiencing music. Enacted performance, for most of us, is inextricably linked with notes on a page.
Is this not also true of law, especially as conceptualized by those realists, influenced by Holmes, who emphasized “law in action”? Did they not ask us to focus on the performances of actual people – ordinary citizens, lawyers, police, public officials, and judges – rather than to concentrate on mere “law on the books,” i.e., the text independent of its performance? To be sure, one can read the texts of the law as collected in statute books and the like, but in that guise they are only in a state of limbo. They await their performance by legal actors and actresses or, to shift the metaphor, by virtuosos of the law who can interpret melodic lines in the law in ways overlooked by previous players.
It should now be clear why a review that began by considering how to perform Beethoven’s first piano concerto should have gone on to address how those designated to engage in legal performance, like judges, interpret statutes or the Constitution. We believe that there is indeed a relation between law and music, derived in part from their common textuality and necessity for subsequent performance. And it should also by now be clear why studying this relationship of common textuality draws us more and more into the study of culture as a whole. For performance, whether legal or musical, is always situated in a culture and reflects the distinctive problematics of that culture. Thus, if ours is a modern culture, our interpretations, our subsequent performances of law and of music, must be understood in the light of the tangled and complicated experience of modernity and its gradual transformation into what is now called the postmodern. Although we have only begun to explore the complexities of the subject in this essay, we firmly believe that any deep understanding of legal thought in the twentieth century requires legal scholars to confront the meaning of modernity for law and legal culture. To the extent that the study of other aspects of culture, including music, must also confront questions of interpretation and subsequent performance under the shadow of modernity, we believe that comparative study can aid us in our more parochial task of understanding the law itself. We think we understand our own “England” better by having visited other shores, and we are confident that others can benefit from the same experience.
We are not suggesting that one best understands England by emigrating from it and establishing one’s permanent life elsewhere; similarly, we doubt that one can best understand law by spending all of one’s time on what follows the “and” in various “law and …” movements. But there are few people left who do not believe that at least some of one’s time should be spent looking on what follows the “and,” and the question is whether musical performance should become a suitable candidate for such study. We think that it should. We should have no trouble recognizing Richard Taruskin, Charles Rosen, Neal Zaslaw, and Christopher Hogwood as our own colleagues engaged in a common enterprise of trying to figure out how one meaningfully inhabits a practice of performance after innocence has been lost. They are all writing interesting, provocative, infuriating, and, most importantly, illuminating work that should interest any of us who daily wrestle with our own performance practices as lawyers, judges, or teachers of the law.
2. One is tempted to say that legal modernity begins with Holmes, but in fact the history of legal modernity is considerably more complicated. Moreover, Holmes’s thought did not arise out of a vacuum. One of us (Levinson) has devoted considerable effort to showing the influence of a much earlier stream of thought – Emersonianism – on Holmes. S. Levinson, Skepticism, Democracy, and Judicial Restraint: An Essay on the Thought of Oliver Wendell Holmes and Felix Frankfurter, ch. 1 (Ph.D dissertation, Harvard University 1969). Thus, Holmes’s thought combines both older and more foreword-looking elements, which is part of its endless fascination for historians and other scholars. In beginning our discussion of legal modernism with Holmes, we use Holmes as many others have – as less a progenitor than as a symbol of trends that have become central to American legal thought.
6. See S. NOVICK, HONORABLE JUSTICE: THE LIFE OF OLIVER WENDELL HOLMES 43-52, 65-68, 71-73 (1989) (discussing profound impact of war on Holmes and describing the three times he was wounded in battle – at Ball’s Bluff, Antietam, and Fredricksburg).
18. Id. at 202. And those familiar with Holmes’s famous dissent in Lochner v. New York are likely to overlook his argument that the test of legislative reasonableness is whether a statute would “infringe fundamental principles as they have been understood by the traditions of our people and our law.” Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting).
26. As Professor Schlegel reminds us, the realist study of law as a social artifact had at least two versions. One might engage in social scientific research with an eye to eventual suggestions for reform, a position that Schlegel associates with William O. Douglas and Charles Clark. Or one might engage in the scientific study of legal institutions for its own sake, a position Schlegel finds most clearly in the work of Underhill Moore. See Schlegel, American Legal Realism and Empirical Social Science: From the Yale Experience, 28 BUFFALO L. REV. 459, 517-19, 539-45, 567-69, 578-85 (1979); Schlegel, American Legal Realism and Empirical Social Science: The Singular Case of Underhill Moore, 29 BUFFALO L. REV. 195, 293-95 (1980).
32. Id. at 415. Not the least of Marshall’s rhetorically brilliant gestures is italicizing “crises” instead of “adapt” and “Constitution” instead of “we.” See Schlag, The Problem of the Subject, 69 TEX. L. REV. (forthcoming 1991).
33. For a recent musing on the similarities between the Constitution and jazz, see Ely, Another Such Victory: Constitutional Theory and Practice in a World Where Courts are No Different From Legislatures, 77 VA. L. REV. 833, 837 n.10 (1991) (“On the Constitution as a Lead Sheet.”) (italics omitted).
34. Cf. D. KORNSTEIN, supra note 48, at 110 (“For all we know, one night this week Zubin Mehta … will stand at his podium and whisper to the New York Philharmonic: ‘We must never forget that it is a symphony we are expounding.’”).
Professor Ely suggests that “those who assert the possibility of differentiating valid from invalid constitutional interpretation on the basis of ‘craft limits’ of a sort they assert are recognized in the arts are likely to be badly disappointed when they get around to a close examination of the analogues.” Ely, supra note 231, at 837 n.10. The reason is, apparently, that “every time there develops what appears to be a consensus among musicians (and their listeners), to the effect that a certain interval is unacceptable noise, someone who can’t be dismissed on any principled basis as ‘not a real musician’ starts using it, and others often follow.” Id. Of course, this does not demonstrate that the analogy is useless, only that it cannot serve to legitimate particular limits on the practice of constitutional interpretation by appeal to existing “craft values.” And that fact is itself quite interesting.
However, because Ely sees that the analogy to jazz is not much use in legitimating the sort of limits on constitutional interpretation he would like to exist, he conludes that it is not clear what we can learn from the analogy of jazz to constitutional law. See id. But for someone who is less interested than Ely in legitimating judicial review by distinguishing it from legislation, and is more interested in asking questions about how legitimation actually occurs, one learns a great deal from the analogy about how seemingly “objective” standards or craft values are constantly altering themselves. Thus, Ely sees his analogy as “not much use” precisely because it does not serve his particular project – because he does not want to conclude that the craft of judicial interpretation, like that of musical interpretation, is always altering itself historically. On the other hand, a person with a quite different project (understanding the phenomenon of constitutional interpretation and how elites justify it to themselves and to others) might find the analogy useful for precisely the reasons that Ely rejects it.
We think this example demonstrates something quite important about the pragmatic enterprise we are engaged in. First, for different projects (legitimation vs. anthropology) different tools may be more or less useful to the task, and thus different analogies will be more or less useful. Second, it does not follow from Ely’s discussion that analogies between law and the arts are not possible, or that they will not stimulate thought, but rather that one’s ability to use analogies to convince others with very different agendas will be limited because they will tend to reject analogies which move in directions they do not like, and the more unusual the analogy appears, the easier it will be for them to reject it out of hand. This should come as no surprise to anyone who has ever had a discussion with someone with a very different agenda. Thus while asserting that analogies can be helpful, the pragmatist always understands that analogies become more or less useful tools of discussion and persuasion depending upon the audience they are directed to.
36. Id. See also Balkin, Tradition, Betrayal, and the Politics of Deconstruction, 11 CARDOZO L. REV. 1619 (1990) (discussing conceptual affinities between tradition and betrayal in constitutional law).
46. Indeed, Miller points out, “[t]here is a tendency to forget that for a playwright like Shakespeare the written script was not intended for publication but as an aid to performance without any view to a distant posterity.” Id. Miller would also presumably endorse recent suggestions by Shakespeare scholars that what we refer to today as the “texts” of the plays, deviation from which presumably is questionable, are themselves creations of a decidedly post-Shakespearean moment that overlooks the fact that his own actors felt altogether comfortable engaging in their own “contributions” to the manuscripts handed them. Thus Stephen Orgel notes that Shakespeare wrote his plays for performance rather than as publications to be read outside the theater. “Shakespeare habitually began with more than he needed,” so that “his scripts offered the company a range of possibilities, and … the process of production was a collaborative one of selection as well as of realization and interpretation.” See Brett, supra note 114, at 106 (quoting Orgel, The Authentic Shakespeare, 21 REPRESENTATIONS 1, 7 (Winter 1988)).