Ach, mein Sinn

Bach on the reasons for respecting freedom of conscience

I’m not at all religious; I found seeing a procession carrying a cross, and kneeling down to pray briefly outside my building in the centre of Auckland before continuing on their way rather bemusing. But I do like good music, very much including religious music from JS Bach to Dave Brubeck, and a rainy Good Friday seemed like a very good occasion to listen to a recording of the St John Passion without getting distracted.

This turned out, however, to be a more topical exercise than I expected. Pilate wondering “What is truth?” and the crowd insisting that “We have a law, and according to that law He should die” ― was Auden thinking of this when he wrote about “the loud angry crowd/ Very angry and very loud” claiming that “Law is We”? ― are just two examples of the very contemporary issues the Passion raises, quite from any belief that it holds eternal truths.

But it was another passage that struck me most, one that speaks to a truth that is, at least, as old as mankind but also, sadly, very relevant to Canadians in 2018: the aria “Ach, mein Sinn”.


Here is a translation:

Alas, my conscience,
where will you flee at last,
where shall I find refreshment?
Should I stay here,
or do I desire
mountain and hill at my back?
In all the world there is no counsel,
and in my heart
remains the pain
of my misdeed,
since the servant has denied the Lord.

As you’ve probably guessed, the words are Peter’s, after he denies being one of Jesus’ disciples. But the description of a conscience that is tormented by its own weakness, that wants to flee its predicament yet realizes that it cannot escape, and that cannot be helped, is one that ought to be recognizable to all human beings, regardless of their belief in, or indeed awareness of, the Gospel story. Whether Peter has denied the Lord or “only” a man he loved and admired is, I think, quite beside the point. Either way, he has given up his integrity, and he suffers as a result.

It is also beside the point whether Peter’s denial was voluntary, and his suffering, something he brought upon himself. Having followed Jesus, whom the High Priest’s men have arrested, to the High Priest’s palace, Peter is confronted by “One of the high priest’s servants, a friend of the man whose ear Peter had cut off”. He is no doubt afraid; he is probably right to be afraid. From an external perspective, his denial might be excusable; one shouldn’t be quick to boast that one would not have done the same in such circumstances. But for Peter himself such excuses are of no avail.

This reminder of why conscience is so important is most timely. The idea that Trinty Western University can just be made to abandon its homophobic and illiberal “covenant”, or that religious groups can be made to accept an “attestation” implying support for abortion rights, or that Ontario lawyers can be made to “promote” values regardless of their belief in them, ignores the suffering that these institutions and individuals would subject themselves to in complying with the state’s demands. Empathy for this sort of suffering, for the pain people when they lose their integrity, even if acting under the compulsion of the law and the threat of legal sanction, is the justification for respecting and protecting ― including by constitutional means ― the freedom of conscience.

The promoters and defenders of impositions on conscience feel no such empathy. Whether that is because they do not understand the plight of those whose obedience they demand, or because they are indifferent to it, I do not know. I suspect that a certain failure of imagination ― the inability or the refusal to admit that they might not always be the ones exacting obedience, and that they might instead find themselves in the position of would-be conscientious objectors ― is at least partly at issue. But, either as a warning about what they might themselves feel one day, or as an appeal for compassion, I hope that they take note of “Ach, mein Sinn”.

Follow Me

Apologies for the lack of blogging in last couple of weeks. I was swamped, among other things by my contribution to co-writing, on short notice, a paper on the federal government’s Senate reform plans. (The paper isn’t quite ready yet, but should be soon enough, so I hope to have more to say about it in the coming weeks.) I am still swamped, but will try to post, if not as frequently as I might like.

To get my rhythm back, here’s a not-entirely-serious thought inspired by a story that ran 10 days ago. The story is about a 1967 Ferrari being sold for $27.5 million, a price one usually associates with famous paintings, not used cars (albeit that these too can get pretty expensive, at least if you add punitve damages and full-indemnity costs into the mix). Then again, describing the Ferrari 275 GTB/4*S NART as a “used car” doesn’t really give you the picture (to get the picture, do click on the link above). This thing is not really a “used car” ― it is, indeed, more like a work of art. (Other old cars, by the way, have been exhibited in art museums ― even one as serious and prestigious as Arts Décoratifs in Paris.)

Which brings me to my not-entirely-but-somewhat serious, and legal, thought. Many jurisdictions, especially in Europe, give an artist a right to receive a royalty from the re-sale of one of his or her works ― something known as a droit de suite. Interestingly, California, where the Ferrari seems to have been auctioned off, also has a statutory provision, s. 986 of the California Civil Code recognizing a droit de suite, though it has been found unconstitutional (as an interference with interstate or foreign commerce) by a federal District Court. Now, I am no expert on art law, but I doubt that such legislation would apply to the sale of the Ferrari. The California provision certainly wouldn’t. It applies only to a “work of fine art,” which it defines as “an original painting, sculpture, or drawing, or an original work of art in glass,” which seems to exclude much or even all decorative art ― not just cars. (I should also note that the sale of the Ferrari would not have come within the scope of this provision for other reasons.) My question is: why is this?

One reason might be that applying the droit de suite to the sale of cars, or indeed of other objets d’art, would not really serve the purpose for which the right was created, which was, apparently, to help help impoverished artists and their families. In a legislative debate, the French culture minister declared that

it is said that it was created following the re-sale of Millet’s L’Angélus after the war of 1914-1918. The painting’s owner made a great deal of money, even as the artist’s family was in strained circumstances. Many artists, as well as their families, had suffered because of the war: the droit de suite was a way to remedy socially difficult situations. (Translation mine; you have to scroll down to the heading “Avant l’article 28” to fin the passage.)

It might be that Ferrari, and other corporations often involved in the creation of objets d’art, are not struggling artists who need that kind of help. But, for one thing, some creators of decorative arts are, in fact, individuals. For another, companies too might be in dire financial straits. Ferrari itself, so long as it was ruled by its founder Enzo Ferrari, mostly struggled along ― he just used it to fund the Formula 1 team, which was the thing that really mattered to him.

I’m tempted to think, half-seriously at least, that the distinction being made here are just another product of the law’s inability to deal with art, about which I have already written here. Art is difficult to evaluate, and it is difficult even to define. Smarter people than lawyers have a hard time with that ― it is not surprising that lawyers, and legislators, do too.  All that is not to say that the droit de suite is generally a good idea ― I don’t know whether it is. But if it is, then the question of what qualifies as art, and how the law is going to implement this definition becomes an interesting one.

Law, Art, and Interpretation

The idea that interpretation in law is similar to interpretation in music is not exactly new. For example Joseph Raz, in “Authority, Law, and Morality,” first published in 1985, wrote that “Judicial interpretation can be as creative as a Glenn Gould  interpretation of a Beethoven piano sonata.” But Jack Balkin, in a wonderful paper, “Verdi’s High C,” develops it much further than a throwaway analogy. The paper is relatively short and well worth reading, but here’s a summary, followed by some comments.

Prof. Balkin’s main argument is that law is like performing art, especially music, more than like literature (to which it is more frequently compared). Both in law and in music, there is something, the source―the text of constitution or a statute, a score―that does not speak directly to its readers, like a novel. Someone―a judge, a singer, an orchestra― has to interpret it, to perform it, to give life to it. And both in law and in music performance paradigmatically happens before an audience, whose presence, views, and reactions matter a great deal. In his words,

[l]aw, like music and drama, involves more than a reader and a text. It involves a complex of reciprocal influences between the creators of texts, the performers of texts, and the audiences affected by those performances.

The performing arts therefore normally involve a triangle of performance.  There is a person or institution that creates the text: the composer, the framer, or the adopter. There is the performer whose job is to make sense of the text and bring it to life in the real world. And finally, there is the audience before whom the text is performed. (4)

 Furthermore, both in law and in music,

  • we can argue about whether an interpretation is right or wrong. And, remarkably, the sorts of arguments that can be made for and against particular interpretations turn out to be quite similar in both fields. It is also the case, both in law and in music, that
  • some kinds of interpretation are regarded as permissible, others are “off the wall,” although

which are what changes over time. Audiences are active participants in that change, though their participation takes the form of reaction to the performances they witness. The performers take the lead and the risk, and “attempt to influence audiences; if audiences don’t like what performers do, this undermines their ability to perform.” (17)

Prof. Balkin also points out, however, that there are differences between interpretation in law and in music. For one thing, a judge is required to interpret a law if it is relevant to a case before him, whereas no artist has to interpret a particular piece of music. A further difference is that in law, the interpretations of some interpreters (for example those of a Supreme Court) are binding on other interpreters. There is no such hierarchy of authority in art. Finally, in law, we expect that, at least over time, controversies over the interpretation of particular texts will be settled. There is no such expectation in music, and indeed it would be boring if all the performers played a given piece in the same way.

Again, I find this very interesting and largely convincing. Here are some mildly dissonant notes though.

One interesting difference between law and music is that, in law, argument for the validity of an interpretation is packaged with the actual interpretation (in the reasons for a court’s decision). A musician, by contrast, doesn’t justify himself as part of the performance, and usually not even in some other setting. (I don’t know if musicians share Umberto Eco’s view that “a gentleman must never argue with his critics [because] an author who argues with his critics is vulgar and impolite,” but they might. Even Glenn Gould, articulate and prolific writer though he was, did not justify his interpretations, though he did justify his choice of repertoire.)

Speaking of Glenn Gould, he is the greatest reminder there ever was that some performers don’t care much for the audience. Gould hated the interactive nature of performing before an audience, which prof. Balkin implies is a necessary component of authentic performance―the applause, which he wanted to “ban,” the performers’ tendency to play to the crowd. Eventually, he retired from concerts at the height of his career―choosing only to make records which he felt allowed for more genuine and better interpretation. I’m not sure if there is a judicial equivalent to this. Judging, and particularly appellate judging, forces the interpreter to think of at least some audiences―the parties and one’s colleagues on an appellate panel―in ways that make a Gouldian escape to the recording studio impossible. Or does it?

The last, and probably most important point I want to make concerns the relationships between authorship and interpretation in law, music, and literature. Prof. Balkin’s paper implies that these are distinct roles. But that isn’t exactly so.

Take literature first. In the beginning, literature was all about interpretation. There were no fixed texts, and no recognized authors. But there were stories, traditional stories, which had to be retold, and thus interpreted. That has changed of course, so much that we have forgotten that in literature, interpretation pre-dated authorship. Homer didn’t make up his stories, but his interpretation of someone else’s stories is remembered while any other versions have been forgotten, and we regard him as the author. In reality though, the distinction between authorship and interpretation has endured. Shakespeare, for the most part, did not make up his stories either―he worked on the basis of other plays, or histories―his plays are interpretations, though of course they are very much his work and not that of his predecessors. I could go on for a very long time, but the point is simple―there is hardly such a thing a pure authorship ― yet, at the same time, the interpreter is an author too, and can make the interpreted text his own creation. I think the same is true, to an extent at least, of music. Really distinctive interpreters, such as Glenn Gould, are creators in their own right (for better or worse―it is not a sign of approval to say that Gould’s Mozart is not really Mozart at all), while composers engage in a great deal of interpretation, whether of specific melodies that they use in their work or of musical forms (Chopin’s waltzes, say, are interpretations of the generic waltz form).

What about law? Here I think it is, in some ways, quite similar to literature. For a long time, there were no, or at least few, legal texts. Like traditional stories which existed without a canonical form and a known author, common law rules were long believed to exist without a “form of words,” and without being regarded as creations of individual judges in particular cases. Lord Mansfield famously wrote that “[t]he law does not consist of particular cases but of general principles, which are illustrated and explained by these cases.” (R. v. Bembridge, (1783) 3 Doug. 327 at 332,  99 E.R. 679 (K.B.)). It is now much more common to regard particular judges in particular judges as authors of legal rules―say, Lord Atkin as the author of the neighbour principle in Donoghue v. Stevenson). But many people, perhaps most famously Ronald Dworkin, still see at least some truth in the older conception, according to which judges are to some considerable extent retelling, rather than inventing, stories. (This makes me think that Hercules was an inapt name for Dworkin’s model judge. He should have been named Homer.) Conversely, as Thomas Hobbes already observed, in their capacity as interpreters of legislation (and now constitutions), judges are always in danger of becoming authors. Debates about judicial activism are, arguably, debates about what it means to be an interpreter or an author. The persistence of these debates shows that there is no clear distinction between these roles.

Apologies for the length! My fascination with the topic got the better of me.


There was an interesting story by Michael Posner in The Globe and Mail yesterday on Apple’s decision not to allow the sale of books and apps telling the story of Danish hippies on its commercial platforms, iBookstore and the App Store, because they contain some photographs featuring naked men and women. Apple says the pictures breach its policy against sexually explicit images. Mr. Posner accuses the company of hypocrisy, because it has not banned other books “filled with pictures of naked bodies [and] continues to sell apps for Playboy and Sports Illustrated, which feature partially naked women.” So does the author of the books, who points out that Apple’s founder, Steve Jobs, claimed to be a spiritual descendant and to share some of the ideal of the hippies movement, which he accuses Apple of betraying. The publishers, for their part, insist that the books are in no way pornographic or arousing, so that they do not breach Apple’s guidelines.

Be that as it may, the Danish authorities are not amused. Mr. Posner writes that

[l]ast week, Uffe Elbaek, the country’s culture minister, wrote to his European counterparts, and to European Union commissioners Neelie Kroes and Androulla Vassiliou, seeking to have the issue debated within the EU.

“This is a history book,” Elbaek said in an interview. “It documents how we behaved in those days. Is it fair that an American company without any real dialogue … can apply American moral standards to a product that only interests a Danish audience with vastly different moral standards?”

The minister worries that corporations “will decide how freedom of speech will be arbitrated and who is allowed artistic freedoms” and argues that “it’s important that we have these discussions at regional and national levels.” Mr. Posner too worries about freedom of speech. Indeed, he accuses Apple of “de facto censorship.”

This brings to mind several issues about which I have already blogged. One is the dual and ambiguous position of technology companies as speakers and censors, about which I have written about in Google’s case. Apple might argue that a decision not to allow the sale of a book it deems offensive or otherwise unsuitable is a form of editorial judgment and, thus, protected speech, just as Google argues its decision to disfavour copyright-infringing websites in ranking its search results is. At the same time, as the provider of a platform through which others express themselves, Apple takes on a speech-regulating role; and the importance this role is proportionate to that platform’s popularity.

But there is a crucial difference between Google removing content from, say, YouTube at the request of a government agency, and Apple removing content from its stores on its own, without any government involvement. In my view, it is not fair to refer to such decisions as censorship. A private company, at least so long as it is not a monopolist, has no power to prohibit speech. If a speaker is not allowed to use one private platform, he or she can turn to another. As Mr. Posner notes, the books Apple has banned from its stores are best-sellers in print. Their author is not exactly being silenced.

Besides, we accept that newspapers or publishers do not print everything that is submitted to them. The question, then, is whether there is a reason for holding technology companies to a different standard. Dominant market position or, a fortiori, monopoly might be one such reason. But I doubt that Apple actually has a dominant market position, even in the app market (considering Android’s popularity); it surely doesn’t have one in the book market. And I’m not sure I can think of anything else that would justify, even as a matter of morality, never mind law, saying that Apple (or Google, or whoever) has more onerous duties towards freedom of expression than traditional media companies, as Ms. Elbaek, the Danish minister, seems to think.

As always in the face of such disagreement, there also arises the question of who (if anyone) ought to be making the rules, and how―the question of the appropriate “mode of social ordering,” to use Lon Fuller’s phrase, about which I blogged here, here, and here. Ms. Elbaek seems to think that the rules regulating the ability of platforms such as Google’s or Apple to select and “censor” their contents should be said by national governments (by legislatures presumably, or maybe by executives through international treaties) or by supra-national bodies such as, presumably, the EU. (Note that she spoke of “discussions at regional and national level”―not at the UN, which she probably knows is not too keen on certain kinds of offensive speech the Danes see nothing wrong with.) But it’s not clear that governments, at whatever level, should be making these rules. As wrote in my earlier posts, legislation is often a clumsy tool for dealing with emerging technologies and new business models, because the latter develop faster than the former can adapt. And private ordering through the market might be enough to take care of the problem here, if there even is one. Apple is not a monopolist; it has competitors who might be willing to give the books which it does not like a platform, and profit from them. Authors and readers are free to use these competing platforms. Apple will remain a prude―hypocritical (as prudes often are) or not―if it thinks there is a profit to be made in prudishness, or it will convert to more liberal ways if that is more profitable.

The Art of Judging Art

The New York Times ran a fascinating article yesterday about lawsuits in which courts are asked to rule on the authenticity of works of art. Of course it is a rare judge or member of a jury who has any sort of experience expertise in such matters. So the cases become battles of experts, with the triers of fact “with no background in art” having to “arbitrate among experts who have devoted their lives to parsing a brush stroke.”

As the article points out, this is not, in itself, unusual. Medical malpractice cases are like that – judges and most jurors don’t know the first thing about what good medical practice is. So are a great many other cases. What is unusual is that the art world (buyers and sellers of works of art, and the intermediaries they employ) seems pretty much to ignore the courts’ judgments. The market, the articles says, is “a higher authority” than the courts; an artwork declared authentic by a judge or a jury can still be treated as a fake and go unsold for decades.

One explanation for this, provided by an “art law specialist” quoted by the Times is that “[i]n civil litigation the standard of proof is ‘more likely than not.’ Now picture yourself walking into a gallery and seeing a Picasso. You ask, ‘Did Picasso paint that?,’ and the dealer says, ‘Yes, more likely than not.’ You wouldn’t buy that.” The relevant community – the market – imposes a higher standard of proof (though the article doesn’t tell us which one – is it something like beyond a reasonable doubt, or perhaps an even heavier burden?), and a court judgment will not often meet it, because it is not designed to do so. (Judges, the article notes, are aware of this disconnect.)

Still, although the article does not focus on this, while the community as a whole may be able to ignore the pronouncements of ignorant or credulous judges and juries, the actual parties to the cases are not. If, say, a buyer sues a seller for fraud on the basis that the painting she bought is a fake, and the court finds that it is authentic, she has to live with the judgment, even though the art community may conclude that the judgment is mistaken. The buyer is then stuck with a valueless painting, and no remedy at all. In the same way, I suppose, doctors may think that a colleague of theirs has been unfairly found liable in a malpractice suit, and is actually a great professional and completely blameless in the case – but he still has to pay damages.

This is yet another reminder of the limits of the courts’ ability to grapple with the world’s complexity and to serve as an effective dispute-settling and/or truth-finding mechanism. Other areas in which these limits are manifest on which I have already blogged include foreign policy and emerging technologies. These limits are not necessarily a bad thing; no human institution is perfect. The good news is that we have a number of institutions trying to deal with difficult questions – courts, legislatures, the market, etc. – so we need not rely on just one of them.  Sometimes one will be better at dealing with questions of a particular type, so we can defer to its answer. The bad news is that sometimes it is not clear which is better, and indeed sometimes it is clear that none of them are very good at all (as I concluded was the case for new technologies). In the case of art, it is arguably better to live by the decentralized, collective wisdom of the art community than the necessarily uncertain and ignorant judgments of the courts. That collective wisdom is not infallible, but courts, it would seem, are even worse.