et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis



Desmond Manderson* & David Caudill**

When modes of music change, the fundamental
laws of the State always change with them.1
What do law and music have in common? From the point of
view of language, of performance, of social practice, and of cultural
achievement, the question is an intriguing one. The three
driving forces for this Symposium, David Caudill (moderato con
moto), Desmond Manderson (presto con brio), and Monroe Price
(andante espressivo), first asked this question in Darwin, capital of
Australia's remote Northern Territory. A more improbable
meeting point could hardly be imagined. But the stars were in
alignment, and two years later an astonishing array of talent-including
musicians or musicologists, law professors or lawyers, and
combinations of both-assembled to try to provide answers. The
symposium, "Modes of Law: Music and Legal Theory-An Interdisciplinary
Workshop," was held on April 26-27, 1998. It was organized
by the Benjamin N. Cardozo School of Law, hosted by the
Mannes College of Music, and sponsored by the Jacob Burns Institute
for Advanced Legal Studies, the Howard M. Squadron Program
in Law, Media and Society, and the Cardozo Law Review. It
was an event that will live in our memory for many reasons: for its
sense of intellectual adventure, for its ethical compassion, and for
the community it constituted among those present.
This is not the first time that such a conjunction of interests
has been broached. Many philosophers, including Plato, Rousseau,
Nietzsche, Adorno, Langer, and Zizek have shown themselves
interested in music as a cultural form. In addition, there was
already a fragmentary legal literature out there, including essays
from Jerome Frank2 all the way to Richard Posner,3 Sandy Levin-
* Senior Lecturer, Faculty of Law, The University of Sydney, Australia.
** School of Law, Washington and Lee University, Lexington, Virginia.
1 PLATO, THE REPUBLIC OF PLATO (Allan Bloom trans., 2d ed. 1991).
2 See Jerome Frank, Say It with Music, 61 HARV. L. REV. 921 (1948); Jerome Frank,
1326 CARDOZO LAW REVIEW [Vol. 20:1325
son, and Jack Balkin.4 But these were like stars waiting for an
animating spirit to create from them some constellation of interest.
Cardozo's interdisciplinary workshop, for the very first time, drew
together a number of previously disparate writers and writings,
while serving as an opportunity to develop and share new ideas on
a range of related topics of contemporary importance in the fields
of cultural studies and contemporary legal theory.
To some extent, the idea of law and music comes out of the
protean law and literature movement. That movement has itself
proceeded through several stages: from the canon of literature as
an enricher of legal narratives or as an ethical supplement, to the
problems of literature as a paradigm of legal interpretation, to the
idea of law itself as a species of literature. In other words, there
has been a development from thinking of law and literature as fit
objects for comparison, to understanding them as processes engaged
in interaction.
Postmodern legal theory, and the resurgence of interest in
aesthetics generated by it, has further expanded the ways in which
law and the arts generally can be seen as mutually constitutive social
forces.5 Considerable use is now made of works of art as texts
through which to explore legal ideas.6 Not only poems and plays,
but paintings and architecture too are treated as creators, enforcers,
and mediators of legal meaning; and this approach touches in
innovative ways on the manner in which law is both communicated
and produced through images, icons, and myths.
These developments reflect two exciting features of modern
legal theory: first, an increasing sophistication in the analysis of
the relationship of culture and law; and second, a move away from
a purely linguistic understanding of legal meaning towards an
analysis of the unspoken or iconic representation of law. Recent
symposia, sponsored by the Cardozo Law Review, on deconstruc-
Words and Music: Some Remarks on Statutory Interpretation, 47 COLUM. L. REV. 1259
3 See Richard Posner, Bork and Beethoven, 42 STAN. L. REV. 1365 (1990).
4 See Jack Balkin, Law, Music, and Other Performing Arts, 139 U. PENN. L. REV.
1597 (1991).
THE LAW (1994); LAW AND AESTHETICS (Roberta Kevelson ed., 1992); Ian Ward, A
Kantian (Re)Turn: Aesthetics, Postmodernism and Law, 6 L. & CRITIQUE 256 (1995).
ART FROM DAVID TO DELACROIX (1993); Costas Douzinas et al., The Alta(e)rs of Law:
The Judgment of Legal Aesthetics, 9 THEORY CULTURE, AND SOC. 93, 101 (1992); Piyel
Haldar, In and Out of Court: On Topographies of Law and the Architecture of Court
Buildings, 7 INT'L J. SEMIOTICS OF LAW 185 (1994).
tive and psychoanalytic approaches to law7 have mapped these features.
In its own specific and modest way, the fruitful and creative
interchange between law and music manifested in this volume both
extends and challenges them.
On one level, music extends the spheres which, like art or literature,
can provide scholars with parallels and homologies
through which they are able to enrich their understanding of the
development and nature of law. Several of our participants provided
such a metaphorical reading. To take a further example,
music and law are both text-bound and performative discourses,
and a serious consideration of the nature of musical interpretation
may provide us with fresh insights into questions of legal interpretation.
Again, a variety of papers given at the workshop took this
kind of analysis to new levels.
On yet another level, musical discourse provides a suggestive
challenge to this approach, precisely because it is non-linguistic
and non-representational. It commands us to think about the
meaning and power of something as abstract as form and as nebulous
as style. In that way, music invites us to think about the ways
in which law, too, has power and meaning embedded not just in
what it says, but in how it says it. Thinking about music forces us
to think about the structure and aesthetics of law. Here too the
creative ways in which musical reflections could provoke us to
think anew about the semiotics of law is more than amply borne
out in the articles that follow.
Finally, a genuine interaction of law and music must work
both ways. How, then, might music be seen as a legal process, as
law is a musical process? Here the particular, and often feared,
power of music as a force of political change raises a deep question:
Why does music seem to have such a significant cultural and
political impact? Why does every country need an anthem, and
each revolution draw forth its balladeer? From jazz to musical
theory to country and western, Symposium participants demonstrated
that an understanding of law and politics could enrich our
appreciation of music, as well as the reverse.
7 See Symposium, Deconstruction and the Possibility of Justice, 11 CARDOZO L. REV.
920 (1990); Symposium, Law and the Postmodern Mind, 16 CARDOZO L. REV. 666 (1995).
1328 CARDOZO LAW REVIEW [Vol. 20:1325
Yet somehow such an analysis of the conceptual variety of law
and music misses its real significance. Most memorable about
"Modes of Law: Music and Legal Theory-An Interdisciplinary
Workshop" was the way in which scholars from a variety of backgrounds
came together not only to share something of their intellect,
but of themselves. With the facilitation of Mannes School of
Music, the papers presented that day made use of an impressive
range of live and recorded musical styles. Classical opera and choral
music, country and western guitar and banjo, folk singing and
jazz trombone, Greenlandic drum music, Eastern European
chants, and Spanish gypsy dances were each skillfully integrated
into arguments about the nature of law. These musical elements
were not accompaniments, were not adornments, and were not
even illustrations. They were central aspects of the meaning contained
in these presentations. The music communicated in ways
which words could not.
What this teaches us goes beyond the specific ideas raised by
the articles in this collection. Music is a communal activity of
meaning-making, and the value of community is something that
our legal thinking should to take into account. Music is a creative
force and a rigorous art, and our legal thinking should also be
imaginative and rigorous. Music is respectful of the plurality of
multi-cultural traditions, and our legal thinking ought to embrace
the plural and welcome the diverse. These are truths-truths
about culture and tolerance and belonging-that were imminent in
every aspect of the Symposium's activities, and that came not from
what was said but simply from the experience of the event itself.
The Symposium demonstrated, above all, that knowledge and
understanding are holistic. Our intellect and our emotion, our
minds and our bodies, do not dwell in separate realms at all. They
are all part of us, and we do our best when we engage all aspects of
our personalities at once. The workshop of which these articles
are a record provided many people with an opportunity to combine,
at last, their thoughts and their feelings. The energy thus
catalyzed was palpable. The various jurisprudential movements of
the past twenty years all have rejected the desiccation of legal theory
and sought instead to inject it with the complex human experience
of law and legal processes.8 This is the renewed passion of ju-
(Peter Fitzpatrick ed., 1991); COSTAS DOUZINAS & RONNIE WARRINGTON,
risprudence; not the reduction of law to endless categories of
analysis, but rather its integration into all the rich cultural forms
that contribute to its meaning. Law and music is just another small
aspect of the on-going reclamation of concepts by experience. If it
has anything distinct to say on the subject, it is this: Legal theory
can do more than speak, it can sing.