On Law and Music

What is the relationship, if any, between law and music?

As a musician myself, I notice many commonalities between law and music. As a jazz musician, improvisation is what I spend a lot of time thinking about. To improvise over a tune, it helps to know the notes in the tune, the chords underneath it, and the structure of the song. Artists can break these rules, and perhaps the best music comes when the rules are broken. But to break the rules, the cardinal idea of music—it has to sound good—cannot be lost. In other words, an artist has to implicitly justify her departure from the structure of the tune with the most convincing reasoning of all—the fact that the music, nonetheless, still sounds good.

It is only a small jump to move to the world of interpretation. Many have written about the aesthetics of law. In a similar vein, in a delightful article, Jerome Frank analyzes the relationship between legal interpretation and music. I preface this by saying that Frank was a noted legal realist, and I am no legal realist. Nonetheless, the intersection he explores between music and interpretation is, at the very least, interesting. For Frank, the relationship between a composer and a performer is quite similar to the relationship between a legislature and a judicial interpreter. The composer is the legislature, and it “cannot help itself” [1264]: interpretation of whatever is intended (or written, depending on one’s view of the idea of “intent”) must fall to the court—much like a piece of music, composed by someone perhaps generations ago, must fall to a performer.

Once the performer  receives the item to be interpreted, three considerations become important. First, the entire point of a performance is to perform: the performer must give due respect to the composer, because he was the one who made the song that the audience will enjoy. Sometimes in music—particularly jazz—you hear a performer that is ostensibly playing a tune but it is something completely different: he says he is playing “Autumn Leaves,” but he is improvising—almost too much—on the original tune. Sometimes this is good, but many times it isn’t, if only because the composer was the one who made the song (in this case, there is a time for soloing, but it’s important to “play the head,” as it were: “Autumn Leaves” is just fine as it is). As a general rule, I think this tracks to legislation, where the interpreter should do his best to remain true, within reason, to the law.  But, as a second consideration, there will always be an inevitable slippage between what the composer wanted (or even what the composer wrote) and what the performer does. The performer may make an inadvertent error, doing violence to the intention of the author. The composer may herself make a musical error, in which case the performer is left in the position of correcting it or leaving it as is. Finally, the interpreter may make a deliberate choice to change the composer’s creation. A jazz musician can do everything from “bending” the notes, to changing the rhythm, to even “going outside” the chord structure, creating dissonance where none was intended. The “free jazz” school, for example,  “developed in the 1960s as a rejection of conventional musical structures: things like melody, harmony, and chord progressions.”  While the free jazz school in many senses merges the role of composer and performer, creator and interpreter, it demonstrates the extreme end of the spectrum—musicians (and interpreters) can make choices given the structure of the music they are asked to perform.

As a musician, I focus much of the time on bebop, hard bop, and other “straight-ahead” styles—perhaps this explains my preference for textualism as a general interpretive method. Nonetheless, there is no doubt that the choices interpreters and performers make can sometimes make the composer’s or legislature’s creation make more sense—or sound better. And if that is the goal, then  sometimes the interpreter and performer will need to make on-the-spot decisions about how a cacophony of words (or notes) should be put together into a convincing performance. As Frank notes, interpretation is a human activity, and human creativity can make sense of what, on its own, may not make sense. Law is not always coherent, because humans are not always coherent. Yet interpreters, taking a step back, can sometimes (within the context of the interpretive rules) make sense of the law.

Frank’s piece underscores the balance that must be struck in interpretation between fidelity to legislative wishes and the “human” element of interpretation that must make sense of what is in front of a court. On one hand, slavish devotion to the law can lead to absurdity; and for that reason, we have an “escape valve” available for those cases, among others (like scrivener’s error). But in most cases, there is something important about remaining relatively true to the composer’s wishes. The composer created the music for a reason. The performer is being asked to perform it. For the performer to turn the tune upside down is a drastic choice that, at least in some sense, undermines the relationship between composer and musician.

What does this musical story tell us about interpretive methodology? Methodology cannot perfectly guarantee correspondence between law creation and law interpretation. What is important, though, is that courts make a choice to commit themselves to rules in advance: just like performers (minus the free jazz folks) commit themselves to chords, notes, rules of rhythm, etc. The choice to commit oneself to a “structured and deliberate methodology” as Justice Malcolm Rowe and Michael Collins said in a recent paper, is immensely important. It prevents rank instrumentalism by an interpreter, where a result is chosen and then justified after the fact. A structured and deliberate methodology, as Rowe and Collins note, does not tie an interpreter’s hands, just like chords and notes do not tie a performer’s; but it does structure the choices an interpreter or musician can make, for the benefit of the listeners who  generally do not want to hear dissonance all night. As above, an interpreter who breaks these rules—say, to solve an absurdity—does so because the methodology permits it. He can justify his departure under the rules, much like a musician can justify a departure from notes and chords as justified according to the reality of what sounds good to an audience. The point, as Rowe and Collins say, is that the methodology forces an implicit justification.

The analogy between music and law is imperfect, in part because different musical styles ask different things of performers. A classical musician is likely to be closer to a composer’s wishes than a jazz musician is, and this is in part defined by the rules of the particular style. Nonetheless, the relationship between composers and performers does track to legislative activity. And it shows us how, in many aspects of life outside of law, rules are important even if imperfect.