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”.

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.