sign in sign up
<<
Home , Emilio Betti

Int J Semiot https://doi.org/10.1007/s11196-017-9537-6

Interpretation and Improvisation: The Judge and the Musician Between Text and Context

Angelo Pio Buffo1

Ó Springer Science+Business Media B.V., part of Springer Nature 2018

Abstract This paper analyses the paradigms of interpretation and the evolution of the creative processes in music and law. Whether it is matter of a score or a law, the text is reborn through the work of the interpreter who, in dealing with the episte- mological problem of the understanding, has to harmonize the purity of the philo- logical reconstruction of the object with the need to actualize its sense. Moving from the creative character of every interpretation—neither the musician can be reduced to a mere executor of a concatenation of musical symbols on the staff as Stravinsky wanted nor the judge may be conceived as a bouche de la loi according to Mon- tesquieu’s theory—this work, after having discussed Gadamer and Betti’s hermeneutical approaches to music and law, focuses on the issue of the limits to the interpreters’ freedom. The interpretation here proposed revolves around improvi- sation, seen as a typical cultural practice of the aesthetic dimension of music. Improvisation, which from baroque to jazz does not correspond to the realm of absolute freedom, is used as a trait d’union in order to make a comparison with legal experience. This is particularly true with the development of case law, which becomes increasingly problematic especially in the light of ‘‘liquid modernity’’, where the ‘‘polytheism of values’’ has been gaining strength. Seen from this per- spective, the comparison between the judge and the musician in their activity as interpreters of a formalized system of signs highlights the controversial relationship between form and creativity, the accuracy of the text and the requisites deriving from the social context, certainty and .

Keywords Interpretation Á Á Improvisation Á Betti’s interpretative canons Á Work-fidelity Á Legal certainty

& Angelo Pio Buffo [email protected]

1 Department of Law, University of Foggia, Largo Giovanni Paolo II, 1, Foggia, 123 A. P. Buffo

1 Introduction

A long history of affinity, symbolic convergence and cultural osmosis connects music and law. Since the times of ancient Greece, the semantic dimension of the word mo´loi has embodied this sense of a deep bond. Indeed, nomos—as Plato reports in referring to ‘‘citharoedic song’’—both expressed the concept of ‘‘law’’ as well as that of ‘‘musical air’’.1 The interweaving of meanings was derived from an old tradition invoked by some peoples where, before the spread of writing, laws were sung so that they could easily be memorized and followed.2 Beyond this semantic convergence, music and law competed in Greek culture on various levels in the realization of the common good and in the formation of ethos. Both had a pedagogical function and, in the common search for harmony, educated people towards civil and orderly living within the polis, conceived as a community based on restraint (me´tron) and limitations (peras). Christian patristics also enhanced the relationship between music and law. Augustine, defining music as ‘‘scientia bene modulandi’’, 3 connected it to the idea of proportion, balance, and concord which stemmed from the contemplation of the divine law. Considered as a science based on modus, music exhibited, alongside an aesthetic dimension, moral and social implications. It was not only the image of a cosmic order but, in expressing through rhythm and the relationship between the various notes the values of harmony, it offered a pattern of regulation of social relations. This conception, to which we must add the noteworthy contribution provided by Boethius,4 was frequently echoed during the course of the Middle Ages. With the emergence of polyphony, the Gregorian chant, and the notation system developed by Guido D’Arezzo, music continued to convey the idea of proportion and restraint. And it showed, from this point of view, a surprising similarity with Dante’s vision of law. In De Monarchia, the Florentine poet highlighted the intrinsically proportionate nature of law, qualifying the latter as ‘‘a real and personal relationship of man to man, which maintained preserves society, and infringed upon destroys it’’.5

1 See Plato [96: 245]. 2 See [7: 920a]. Hobbes [70: 114] highlights this aspect by arguing that ‘‘in ancient time, before letters were in common use, the Lawes were many times put into verse, that the rude people taking pleasure in singing, or reciting them, might more easily retain them in memory’’. 3 ‘‘Science of well-regulated movement’’: this is the renowned definition of Augustine’s ‘‘De Musica’’ [2: 90], one of the most important musical treatises from Late Antiquity. Even Isidoro of Seville, three centuries after Hipponax, referring to the concept of ‘‘modulation’’, defines music as ‘‘peritia modulationis sono cantuque’’. See Randel, Nadeau [103: 340]. 4 The Roman , in his well-known work De Istitutione Musica, pulling together the essential strands of ancient Greek musical theory, describes music as a powerful pedagogic tool and sets forth a threefold classification of the types of music: musica mundana, connected to Pythagoras’ ‘‘Music of the Spheres’’ and concerned with the proportions in the movements of celestial bodies, the alternation of seasons and the combinations of elements; musica humana, a metaphor of the harmonious union of the soul with the body that leads to harmonizing the rational and the irrational in the human being; musica instrumentalis, associated with audible music in general, including vocal music. See Boethius [26]. 5 Dante Alighieri [39: 88]. Original version: ‘‘ius est realis et personalis hominis ad hominem proportio, que servata hominum servat sotietatem, et corrupta corrumpit’’. See Quaglioni [100: 27–46]. 123 Interpretation and Improvisation: The Judge and the…

With the advent of the modern age, music, now freed from religious and metaphysical constraints, became the protagonist of the tormented events of European states. In particular, through the evocative power of the melodrama, it became a tool of political action and engagement. Emblematic from this point of view is the influence of Giuseppe Verdi’s work in shaping the events of the Italian Risorgimento. A central figure in Italian cultural and political life—to the point that his name was used as an acronym to secretly praise Vittorio Emanuele (‘‘Viva Verdi’’, in fact, meant ‘‘Viva Vittorio Emanuele Re D’Italia’’ [82: 132])—Verdi expressed through his works the patriotic feelings of a people. When presenting at the Teatro alla Scala the first performance of Nabucco—one of his youthful masterpieces—he evoked the condition of the Italian people subjected to Austrian domination through the narrative of Jewish prisoners in Babylon. Hence the tuneful melody of ‘‘Va, pensiero, sull’ali d’orate’’ became a symbol of the struggle for national emancipation. However, over the last two centuries, music, in addition to being adopted as a means of political struggle, has played an important role as a ‘‘catalyst for national unity’’ [65: 23], mainly because of its capacity to express with intensity the culture and feelings of peoples. Music and Law have thus found, as Ha¨berle’s studies show, further points of intersection thanks to the inclusion of national anthems in the Constitutional Charter.6 In the course of the twentieth century, the use of metaphors from the musical universe had fertile reverberations also in the sociological sphere, touching upon, albeit latently, legal issues. One example is who interpreted the development of the rigid tonal system in music as part of the rationalization process of bourgeois society.7 Adorno, in his analysis of the orchestra, perceived the latter as a ‘‘microcosm’’ in which the community’s political and social tensions could be researched and investigated [1: 104–117]. Equally well-known is the original research conducted by Elias Canetti in Masse und Macht on the figure of the orchestra conductor as an embodiment of power.8 Moving the centre of gravity of reflection from the historical-cultural level to the analytical dimension, there are many other similarities between the two subjects. Both are performative disciplines,9 each characterized by a specific language, with its own rules. For both the centrality of the interpretative moment is connected with

6 This topic has been studied by Ha¨berle [66]. Ha¨berle [67] also sees interesting analogies between the preamble of constitutions and the overtures from operas. 7 See Weber [117]. 8 Canetti [31: 394–396]: ‘‘There is no more obvious expression of power than the performance of a conductor. Every detail of his public behaviour throws light on the nature of power […] His eyes hold the whole orchestra. Every player feels that the conductor sees him personally, and, still more hears him. The voices of the instruments are opinions and convictions on which he keeps a close watch. He is omniscient, for, while the players have only their own parts in front of them, he has the whole score in his head, or on his desk. At any given moment he knows precisely what each player should be doing. His attention is everywhere at once, and it is to this that he owes a large part of his authority. He is inside the mind of every player. He knows not only what each should be doing, but also what he is doing. He is the living embodiment of law, both positive and negative. His hands decree and prohibit. His ears search out profanation’’. 9 See Balkin, Levinson [12]. 123 A. P. Buffo the presence of coded systems of signs to be deciphered. Both of these could be said to be, as Henri Gouhier puts it, ‘‘arts a` deux temps’’: 10 they need, in addition to the time of writing the text, a subsequent and additional time of execution or application. Music and law, conceived as social practices, also share a common triadic structure. Indeed, as ‘‘legal processes are characterized by a triangular relationship between institutions that create the law, institutions that interpret it, and those involved in interpretation’’ [13: 1530]; so in the musical field there is a ‘‘triangular relationship between the creator of the text, the performer and the audience’’[13: 1520]. Similarly, there are some other basic issues that these two disciplines have in common: one is the value of time, a fundamental element both in the legal context and in the musical context;11 another is a series of hermeneutical issues generated by the common open texture character of the score and of law.12 The key question in this article revolves around interpretative paradigms and the evolution of creative processes in music and law. Whether it is matter of a score or a law, the text is reborn through the work of the interpreter who, in dealing with the epistemological problem of understanding the text, has to harmonize the purity of the philological reconstruction of the subject with the need to actualize its meaning. Starting from the creative character of every interpretation—a musician cannot be reduced to a mere executor of a concatenation of musical symbols on the staff as Stravinsky argued13 nor may a judge be conceived as the bouche de la loi according to Montesquieu’s theory14—this work, after discussing Gadamer and Betti’s hermeneutical approaches to music and law, focuses on the issue of the limitations to the interpreter’s freedom. The kind of interpretation proposed here revolves around the concept of improvisation, seen as a typical cultural practice of the aesthetic dimension of music. Improvisation, which from baroque to jazz does not correspond to the realm of absolute freedom, is used as a trait d’union with legal experience. This is particularly true with the development of case law, which becomes increasingly problematic especially in the light of ‘‘liquid modernity’’ [16], where the ‘‘polytheism of values’’ [118: 148] has been gaining strength. Seen from this perspective, the comparison between the judge and the musician in their activity as interpreters of a formalized system of signs highlights the controversial relationship between form and creativity, the accuracy of the text and the requisites deriving from the social context, certainty and justice.

10 See Gouhier [58]. 11 On this subject, see the well-argued analysis by Picozza [92] who, starting from the study of the metronome, offers a comparison between musical and legal interpretation. 12 See Nitrato Izzo [83: 99–127]; Picozza [93: 73–120]. 13 See Stravinsky [111: 119–142]. 14 Montesquieu [81: 268]: ‘‘Les juges de la nation ne sont […] que la bouche qui prononce les paroles de la loi; des eˆtres inanime´s qui n’en peuvent mode´rer ni la force ni la rigueur’’. 123 Interpretation and Improvisation: The Judge and the…

2 Music in Legal Realism: Between the ‘‘One-Word-One-Meaning Fallacy’’ and ‘‘Jazz ’’

The comparison between music and law, well before the spread of Law & Humanities studies,15 found a fertile field of application within American legal realism. In that context, it was used in a broader context aimed at emphasizing the creative nature of and the flexibility of the limits that the laws place on the courts. In a landmark essay of 1948, suggested that ‘‘judges, when applying (and therefore interpreting) statutory or other legal rules, may be compared with musical performers when playing (and therefore interpret- ing) musical compositions; that, perforce, judges, like musical performers, are to some extent creative artists’’ [49: 921]. This juxtaposition illuminated the ideological horizon of legal realism and corroborated their anti-formalist approach. Moreover, it was meant to stress the centrality of the phenomenon of case law in legal experience. Indeed, in Frank’s view, the idea that ‘‘musical interpreters often face a problem like that which Courts sometimes face’’ [48: 1266] was the premise for addressing two issues of great importance. First, the discretion of the judge,16 conceived as an ineradicable element and linked to two factors: on one hand, to the ambiguity of legislative language, often full of vague,17 contradictory, indefinite and polysemic terms; on the other hand, to the inevitable uncertainty deriving from fact-finding activity. With reference to this first profile, Frank was highly critical of those ‘‘purists’’ who, led only by the polar star of work-fidelity, postulated a passive adherence of the judge to the written norms. Following the criticisms that Krenek addressed in the musical field to the performers who stuck to the letter of the score and proposed a mechanical interpretation of the composer’s intentions,18 he denounced the failure of the literalist approach that claims to elude the discretion of the interpreter. According to Frank, literalist lawyers are the victims of the ‘‘one-word-one-meaning fallacy’’ [48: 1263], that is, an error based on the false supposition that every verbal symbol refers to one and only one specific subject and has one and only one possible meaning.19 Experience in the musical and legal worlds shows the opposite. Often, in fact, the interpretation of the same score or the same statute allows for a number of equally correct variants.

15 For an introduction on various modes and subjects of law and humanities scholarship, see Sarat, Anderson, Frank [106]. An interesting use of musical metaphor in the legal field is carried out by Hirsch [69] who compared the judge to a pianist. 16 According to Frank [47: 149]: ‘‘Judging involves discretion and individualization. The judge, in determining what is the law of the case, must choose and select, and it is virtually impossible to delimit the range of his choice and selection’’. 17 On this subject, see the well-argued analysis by Endicott [43]. 18 See Krenek [74]. 19 Frank [48: 1263] clarifies that ‘‘Even around the more precise words, often there is a wide fringe of ambiguity which can be dissipated only by a consideration of the context and background’’. 123 A. P. Buffo

Second, the incessant interaction between the legislator and the judge, which finds an interesting similarity in the musical field in the relationship between the composer and the performer. The parallels between these roles can be seen on two interrelated levels. The legislator, in making law, can be compared to the composer who creates the score: both give life to a text and leave to others the task of interpreting it.20 Likewise, the judge, in enforcing legal rules, can be compared to the performer of a musical piece. Both are faced with a coded system of signs that needs to be interpreted. Both, in their hermeneutic activity, play a vital function that implies a degree of interpretative freedom in the concrete application of a text, whether it is a law or a score. This latter aspect clearly reveals the spirit of those legal realists who, in conceiving law as a generalized prediction of what the courts will do,21 ascribe crucial importance to judicial power. Seen from this standpoint, indeed, judges are the pivot of the legal system because, through their decisions, they constantly reproduce the link between the static nature of written rules and the intense dynamism of the society that changes faster than the law [76: 1222–1256]. In other words, they relate the text to the context, the law to social demands that are constantly emerging and need to be taken into consideration. This mission is sometimes accomplished thanks to the creative interpretation that involves a deviation from the littera legis. Moreover, the exaltation of the court’s creativity, combined with a strong criticism of literalism, makes it possible to outline a further parallel with the musical world. In fact, just as ‘‘music does not exist in a vacuum, it does not exist until it is performed’’ [28: 257]—it could be stated, paraphrasing Llewellyn, that before being performed, music is only a set of ‘‘paper notes’’ and that, only through the creative work of the musician do they become ‘‘real notes’’ 22—so all law is essentially judge-made because ‘‘it is with the meaning declared by the courts […] that statutes are imposed upon the community as law’’ [59: 170]. However, this pragmatic methodology has weaknesses. Although it undoubtedly reduces the gap between theory and judicial practice, between ‘‘law in book’’ and ‘‘law in action’’ [97], encouraging a continuous adjustment of the law to the new needs and to the new values evolving in society, it redefines the relationship between the three branches of government and complicates the checks and balances systems which ensure the proper functioning of modern democracy. The expansion of jurisdiction and the increasing of judicial creativity could entail a further risk besides the one often observed by scholars of falling under the realm of a ‘‘judicial oligarchy’’ (oligarchischen Richterstaat)[105]. This is the risk of a ‘‘Jazz Jurisprudence’’,23 as Allen called it: a jurisprudence which is unstable, released from the written rules, and which becomes unpredictable. Moreover, a jurisprudence

20 Frank [48: 1272] also states that ‘‘Just as, perforce, the musical composer delegates some subordinate creative activity to musical performers, so, perforce, the legislature delegates some subordinate (judicial) legislation—i.e., creative activity—to the courts’’. 21 See Holmes [71]: ‘‘The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law’’. 22 On the distinction between paper rules and real rules see Llewellyn [77]. 23 Allen [3: 45], referring to the approach of legal realism, argues that: ‘‘It was perhaps appropriate that the age of Jazz should produce a Jazz Jurisprudence’’. 123 Interpretation and Improvisation: The Judge and the… sacrificing the principle of legal certainty on the altar of the irrepressible creativity of the courts. After all, if the activity of the judge is similar to that of the musical performer and if ‘‘statutory interpretation is not a science but an art’’ [48: 1259] as it is not entirely attributable to rational criteria, so the physiological margins of discretion of the courts may be converted into arbitrariness. Consequently, the jazz trend that arises in legal experience overwhelms every possible request for legal certainty. The latter, moreover, was considered by Frank as a myth.24

3 The Work-Fidelity

During the twentieth century, the problem of interpretation appeared as a remarkable trait d’union between music and law in the European context as well. Almost at the same time as Frank’s reflections, in fact, a passionate debate between musicologists and jurists on the nature of interpreting opened in Germany and, above all, in Italy.25 Albeit in a very dissimilar milieu from the American one—the differences lie not only with regard to the legal system (‘‘civil law’’ versus ‘‘common law’’) but also extend to the social and political situation—distinguished scholars faced the crucial issues related to Werktreue (work-fidelity). In a cultural context influenced by idealism, they dealt with a critical point of great importance: the perpetual quest for a balance between creativity and form, between subjectivity and objectivity. In fact, Werktreue, referring to the requisite of fidelity to the author’s intention expressed and enclosed in a work, posed and still poses some noteworthy hermeneutical and methodological questions, common to law and music: from the epistemological status of the work (whether it be a score or a statute) to the possibility of understanding its authentic meaning; from the relationship between the author’s will and its objectification in a text to the extent of freedom allowed to the interpreter and, therefore, to the limits posed by textual constraints. These are analytical aspects that concern both the judge and the musician in the relationships that they respectively have with the legislator and the composer. And, most importantly, these are issues that go to the heart of that paradox described by Brendel, whereby the interpreter experiences a singular situation: on the one hand, he/she has to maintain a total domain of his/her own person so as to respect the author and use his/her skills to preserve the philological purity of the text, but, at the same time, he/she has to leave room for the creative illumination of the moment in order to make the text come alive.26 The different degrees of interaction between these two dialectic demands that configure the interpreter’s paradox—the dimension of objectivity related to work- fidelity and the subjective dimension associated to the interpreter’s personality—

24 See Frank [47]. Bobbio [25], reviewing the second edition of ‘‘Law and The Modern Mind’’, criticizes Frank, arguing that ‘‘legal certainty, rather than being an illusion, is an intrinsic element of law, so that the law is certain or is not law’’. For a different viewpoint on Frank’s thesis, see Tarello [112]. See also Faralli [44] and [45]. 25 For a thorough reconstruction of this debate on musical and legal interpretation, see Resta [104]. 26 See Brendel [27]. 123 A. P. Buffo extend the discourse about Werktreue to the broader debate on the interpreter’s functions and, more generally, on the nature of interpretation. Indeed, depending on which of the two polarities is understood as dominant or if these two poles are balanced, three theoretical doctrines can be distinguished. These are, as Guastini argues, the cognitive, the skeptical and the mixed approach.27 The cognitive view affirms that the text has an intrinsic and objective meaning and, consequently, the purpose of any interpretative activity is to discover it and implement it faithfully. It follows that the interpreter is a « mere declarator who passively recognizes pre-established meanings » [80: 87]. The skeptical perspec- tive, instead, overcomes the formalistic approach by conceiving interpretation as an act of pure decision of the interpreter who, free from constraints, assumes an intrinsically creative and discretionary role. Finally, there is the mixed approach which, in criticizing the two previous models,28 highlights how hermeneutic acts combine elements of mere decision and formal constraints. Here the interpreter plays the task of mediator29 between text and social context. These three approaches provide a theoretical framework that helps to discern the range of positions that characterized the twentieth-century debate on the subject: a debate marked by the presence of conflicting standpoints in both law and music. In this regard, a well-known article by Guido M. Gatti offers an overall view of the discussion highlighting, in the musical field, the summa divisio between those who conceive the interpreter as a re-creator of the work and those who consider him/ her as a mere performer.30 On the one hand, therefore, we have those who believe in the artistic and creative nature of interpretative activity and, on the other, those who believe its essence is merely technical-reproductive.31 Convinced of the correctness of the former approach, the refined and musicologist Salvatore Pugliatti affirmed the creative function of every interpre- tation. His thesis was founded on the spiritual involvement of the interpreter to the work of actualization of a text. The latter, whether it takes the appearance of the score or a rule of law, after being formalized, lives its own life. And precisely because of this inherently autonomous nature—which, as emphasized by Zaccaria, develops in a threefold dimension32—the text is susceptible to a plurality of readings and it is able, through the hermeneutic work of the interpreter, to change its

27 See Guastini [64: 35–52]. 28 According to Guastini [64: 40], the first approach ignores the open texture essence of language whereas the second approach neglects the objective constraints that affect the interpreter’s choices. 29 See Luzzati [80: 89]. 30 See Gatti [54]. 31 According to Picozza [94], these two opposing standpoints are expressed, among pianists, by Ferruccio Busoni, who intervened on Bach to adapt his music to modernity, and Arturo Benedetti Michelangeli, who instead professed absolute fidelity to the text. The same division was also visible, as Pratelli [98] points out, in the style of two prestigious conductors: Gustav Mahler was famous for his creative performances, whereas Arturo Toscanini believed that a performance should adhere strictly to the score. 32 Zaccaria [119: 9], in the light of Ricoeur’s thought, envisions three areas of autonomy of the text. First, the autonomy to the author’s intention. Second, the autonomy towards the economic, social and cultural constraints that contributed to producing the text. Third, the autonomy of the original recipients of the text itself. 123 Interpretation and Improvisation: The Judge and the… meaning in new contexts. In light of these reflections, Pugliatti asserted that a ‘‘creative function, […] may be more or less intense, but is always necessarily present’’ [99: 40]. However, in his thinking, the defense of the subjectivity of interpretation does not transcend into arbitrariness. Indeed, the text is conceived as a necessary outer limit to the discretion of the interpreter: the set of signs that it encloses is still a vehicle through which the interpreter can reach the full understanding of the idea that the composer had in mind. Nevertheless, this limit does not paralyse the artist’s streak, which may lead him/her to carry out a number of variants when performing the same work: ‘‘Every written music is infinite music’’.33 It follows that the concatenation of the symbols on the pentagram is not applicable as an algorithm,34 not only because of the inability to erase the mediation of the human element in the hermeneutic processes. There is a further reason, underlined by Graziosi: the completeness of a composition is never unambiguous but instead it is multiple and changing. It sets the essence of the author’s idea without compromising its variable existence.35 In this regard, the concept of Werktreue becomes particularly thorny because it implies the search for the intention of the author (the composer or the legislator) through the examination of indefinite language. A typical example, in the legal sphere, is the interpretation of ‘‘good faith’’, a general principle of contract law recognized in many legal systems, whether civil or common law.36 This syntagma, indeed, refers to a flexible and open-ended concept—linked to the general duty to act honestly and fairly throughout the contractual process—which operates in several dimensions37 and presents various meanings. Its content, therefore, cannot be rigidly predetermined in an abstract way. Rather, it must maintain a degree of vagueness and malleability in order to achieve its functions—for example, to moralize a contractual relationship, tempering the inequalities that might arise from the dogma of contractual autonomy, or to protect the mistaken belief of one contracting party—providing criteria to enable judges to adapt it to the particular circumstances of the case or to several types of obligations to which it is applied. Also on the musical side there are similar problems, especially as regards the difficulty of performing certain tone and colour suggestions such as the poco forte often used by Brahms38 or the allegro of Domenico Scarlatti’s harpsichord sonatas. Thus, in attributing a sense to these expressions written on the score the performer

33 See Graziosi [61: 40]: ‘‘ogni musica scritta e` infinite musiche’’. 34 See Cossutta [35: 107]. 35 See Graziosi [61: 24]. 36 For an excellent reconstruction of the concept of good faith, also through a historical and comparative perspective, see Zimmermann, Whittaker [121]. 37 Auer [11: 288] underlines three dimensions of good faith: ‘‘first, a substantive dimension of justification of good faith duties in terms of, for instance, contractual ethics; second, a formal dimension concerned with its structure as a vague standard; and finally, an institutional competence dimension raising the question of judicial freedom and constraint in adjudication based on open standards such as good faith’’. 38 See Brunello, Zagrebelsky [29: 80–81]. 123 A. P. Buffo exercises a creative activity, ‘‘without which the score would be just a jumble of rows, rushes and black spots’’ [72: 477]. In total contrast to Pugliatti’s thought, Alfredo Parente favours the passive and static role of the interpreter: ‘‘performing the work of art expresses a practical and non-lyrical function, and it is, in short, technical, non-creative’’.39 In his view, indeed, the technical nature of the interpretation preserves the undoubted advantage of ensuring that subjectivity and originality are not overwhelmed in arbitrariness. Therefore, only an ‘‘artistically inert’’ interpreter can guarantee respect for the voluntas compositoris. Moreover, for Parente, interpreting means only ‘‘giving to the symbols of musical writing the closest value to what the musician creator probably gave to his composition by graphic notation’’.40 Also in the legal sphere, in those same years, scholars debated the nature of interpretation. A similar division to the one produced by musicologists occurred among legal scholars. On the one hand, there were those who postulated the request for absolute fidelity to the voluntas legislatoris: on the other hand, there were the supporters of the intrinsically creative nature of interpretation. Among the former, Gino Gorla deserves particular mention. In his volume entitled L’interpretazione del diritto, he pointed out that the legal rule arises from a spiritual act of the legislature.41 Thus, the subject of the interpretative process was not the legal rule but the normative spiritual act. In the light of the ancient brocade of the Roman jurist Celsus ‘‘Scire leges non hoc est verba earum tenere sed vim ac potestatem’’42 (‘‘To know the law is not merely to understand the words, but also their spirit and force’’), he argued that interpretation must be conceived as a historical investigation into the voluntas legislatoris. According to Gorla, the interpreter must limit his/her role to understanding and applying it faithfully, without usurping the function of the legislator. The interpreter, in essence, merely concretizes the abstract will of the legislator in willing will. Upholding the thesis of the creative nature of interpretation, we find Max Ascoli whose thought, in the wake of Croce’s idealism,43 was part of a general movement of revolt against formalism.44 The influence of neo-Hegelianism led him to revise the doctrine of interpretation through its re-reading as a function of abstract- concrete dialectics,45 visible in the transition from the abstract rule to its concrete application. Thus, in his work ‘‘La interpretazione delle leggi’’, 46 he highlighted the gap between the abstractness of the and the concreteness of real life. This permanent ‘‘contrast between norm and life’’ [10: 39]—the abstractness of the rule

39 See Parente [86: 223]: ‘‘L’esecuzione dell’opera d’arte e` da riferire ad una funzione pratica e non lirica, ed e` insomma tecnica non creativa’’. 40 See Parente [85: 296]: ‘‘ridare ai simboli della scrittura musicale il valore piu` prossimo a quello che il musicista creatore dette verosimilmente alla sua composizione nell’affidarla alla notazione grafica’’. 41 See Gorla [57]. 42 Justinian, Digest, Book 1, Title 3, 17. 43 See Corradini [34: 67–71]. 44 See Treves [113: 368–378]. 45 See Paresce [87: 187]. 46 See Ascoli [10]. 123 Interpretation and Improvisation: The Judge and the… imposed by the legislator makes it, in itself, inappropriate to regulate the concrete social life that it claims it can dominate—can only be overcome through the hermeneutic phase. In fact, only the judge, through his/her interpretation, reconciles the abstract scheme of the regula iuris with life. Seen from this perspective, not only can it be said that every ‘‘interpretation is creation’’ [10: 39] but that ‘‘only the norm derived from the judge’s interpretation has some concreteness’’ [10: 39]. For this reason, according to Ascoli, ‘‘among those who have functions in the legal world, only the interpreter can be considered a legislator’’47 [10:39]. Noteworthy is also the theory of Tullio Ascarelli, an eminent Italian jurist who made a significant contribution to the twentieth-century debate on this subject. Ascarelli, who belongs to those scholars influenced by idealism, in denouncing the illusion of the objective meaning of the legislative text, identified the importance of interpretation in its function of continuously adapting the written, otherwise static, text to a dynamic social reality.48 Before the interpretation—he affirmed—there is no law but there is a mere text.49 Indeed, law and interpretation were unmistakable moments of a single process, enriched by the symbiotic connection with the social body and the values that, at a given historical moment, it expresses. In Antigone and Porzia—an interesting essay that analyses the profiles of legal interpretation by analyzing two masterpieces of world literature, namely, Antigone by Sophocles and Shakespeare’s The Merchant of Venice—Ascarelli explained that law is never a static order, but ‘‘an ongoing creation to which the interpreter contributes in an ongoing manner, as does every member of society, and this is precisely why it lives in history and indeed with history’’ [8: 765]. And he concluded by stating that ‘‘the relationship between the law and its interpretation is not similar to the relation between a reality and its mirror, but it is like that between the seed and the plant’’ [8: 765]. This metaphor possibly synthesizes the different approaches to the theme of interpretation. In particular, through the mirror symbol, it indicates the theories that regard interpretation as a pure process of mirroring the will of the legislator. Instead, through the allegory of the relationship between seed and plant, it shows the hermeneutic viewpoint that accentuates the developmental nature of interpretative processes.

47 For an overview on this topic and for a reconstruction of the twentieth-century debate see Cossutta [36: 9–108]. 48 See Ascarelli [9]. 49 Grossi [62: 331], in an elegantly worded study, emphasizes that ‘‘Ascarelli has always refused to impoverish the law in a text, in a written rule to be venerated as a sacred product; he has always wanted to look beyond a written rule, its environment, the network of relationships within which it was situated, he has always denied […] the easy choice of slipping into the silent shadow of the existing Italian law’’. Original version: ‘‘Ascarelli si e`, da sempre, rifiutato di immiserire il diritto in un testo, in una regola scritta da venerare come un prodotto sacro; ha, da sempre, voluto guardare al di la` della regola scritta, al suo ambiente, alla rete di relazioni entro cui si collocava; ha, da sempre, ricusato […] la facile scelta di mettersi all’ombra quieta del diritto italiano vigente’’. 123 A. P. Buffo

4 The Epistemological Problem of Understanding. Emilio Betti’s Perspective

In the same time as legal realists used the musical metaphor to make their reflections on the law, Emilio Betti gave a great contribution to the subject of interpretation.50 His methodological perspective connected the interpretation, both musical and juridical, to the ‘‘epistemological problem of understanding’’ [22: 157]. ‘‘In order to grasp the essence of the interpretative process and appreciate its unity—he wrote, referring to Schleiermacher’s ‘‘Hermeneutik und Kritik’’,—it is necessary to trace back to the elementary phenomenon of understanding, which is structured through the language, both spoken and written’’ [22: 158]. The object of understanding, for Betti, are all the ‘‘representative forms’’51 [22: 61] in which the human spirit is objectified: from living speech to sculpture, from writing to the conventional sign, to the number and to the artistic symbol, from musical notes to poetical language, from statement to the silent gesture. In other words, the varied universe of ‘‘sensible forms’’ [22: 60] through which a human spirit speaks to another one. The need for representative forms, on the one hand related with the dialectic antithesis between ‘‘An-Sich-Sens’’ and ‘‘Sein-fu¨r- Anderes’’, elaborated by Hegel,52 on the other hand reflects the unswerving need that men have to communicate, to understand each other, to build ‘‘communions of spirituality’’ [22: 63]. In the light of Betti’s teaching, therefore, interpretation, in any field, entails understanding the meaning of representative forms. This is a dialectic process—in semiotic terms it could be defined a ‘‘triadic, communicative model of interpretation understood as a process that comes into being in situations structurally characterized by the presence of sender (objectified sense and spirit), message (representative form), addressee (interpreting spirit)’’53—that incorporates the structural tension between the subjectivity of the interpreter and the objectivity of the sense to be recognized. The persistent opposition between these two antinomic poles can be overcome through four interpretative canons.54 These criteria constitute, in Betti’s view, methodological guidelines that could orient the interpreter towards the objectivity in understanding, leading to a correct interpretation.55 Or, at least, to avoid wrong interpretations,56 as confirmed by Betti, in a later work, after discussing the criticisms that Gadamer made to him.57

50 See Betti [20] and [21]. In those years, he wrote his monumental work ‘‘Teoria generale dell’interpretazione’’, one of the most important works of general of the twentieth century. See Betti [22]. 51 In order to better explain this syntagma, he referred both to the conception of form expressed by Baratono [15] and Peirce’s semiotics, in particular his idea of ‘‘representamen’’ [90: 564]. See Danani [38: 13–19]. 52 See Hegel [68: 119–122]. 53 Chiassoni, Feteris, Kreuzbauer [32: 363]. 54 See Betti [22: 304]. 55 See Viola, Zaccaria [114: 175–237]. 56 See Betti [24: 217]. 57 See Gadamer [51]. 123 Interpretation and Improvisation: The Judge and the…

Among these four interpretative canons, that would guarantee the epistemic correctness of any interpretive process, the first two concern the object of interpretation as well as the representative forms. Contrariwise, the latter two canons pertain to the interpreter. The first canon, called by Betti ‘‘the canon of hermeneutic autonomy’’ [22: 305], stresses to respect the author’s own mind, aim, will and meaning that are enclosed in a representative form. Indeed, the latter, whether it is a score or a legal rule, ‘‘has to be understood in its autonomy, in accordance with its own law by which it was made, according to its inner necessity, coherence and rationality’’ [22: 305–306].58 The sense of this criterion, for Betti, can be expressed by the ancient motto ‘‘sensus non est inferendus sed efferendus’’ (‘‘The meaning ought not to be brought into the text but it ought to be developed outside the text’’) according to which the meaning cannot be arbitrarily introduced into the text but it should instead be extracted from the text itself. Against any form of subjective arbitrariness, it demands that the distance between the representative form and the interpreter remains intact. On this question, there was a strong disagreement with Gadamer’s thought.59 Betti, in fact, criticized Gadamer not only for having inserted the subject into the hermeneutical circle which involves the ‘‘fusion of horizons’’ (Horizontverschmelzung) but also for supporting a subjective and relativistic approach that tended to confuse the interpretation (Auslegung) with the meaning inference (Sinngebung).60 The German philosopher, on the other hand, replied by denouncing the limits of Betti’s ,61 aimed by a ‘‘naive Objektivismus’’ [53: 7] and his attempt to reduce hermeneutics to techne. The second canon on the objective side, well-known as ‘‘canon of totality and coherence’’ [22: 307] prescribes that any representative form be interpreted in a systematic way.62 The task of the interpreter, in the search for the meaning, must therefore be oriented to grasp the correlation that exists between the parts of the object and its entirety. In fact, the whole and the singular parts are illuminated by each other. According to the Italian jurist, the prospect of totality and consistency, prescribed by this canon, would operate on multiple levels. Not only so in the semantic and syntactic latitude, but also extending to the whole of the psychological life and personality of the author as well as to the cultural, social and historical context to which the text belongs. A parte subiecti, Betti analyzes two more canons, arguing that the epistemolog- ical problem of understanding cannot elude the irreplaceable role and the precious collaboration of the interpreter. In fact, the subjectivity of the latter, ‘‘far from constituting an obstacle to interpretation, it is the indispensable condition of his possibility (in the Kantian terms)’’ [22: 315]. This aspect is reflected in the third

58 See Betti [22: 305–306]: ‘‘la forma rappresentativa deve essere intesa nella sua autonomia, alla stregua della propria legge di formazione, secondo una sua interiore necessita`, coerenza e razionalita`’’. 59 See Zaccaria [120: 694–709]. See also Argiroffi [5]. 60 See Betti [23]. 61 See Gadamer [52: 241–276]. 62 According to Betti, this canon states a fundamental need, already highlighted with particular clarity by the Roman lawyer Celso for which: ‘‘incivile est, nisi tota lege perspecta, una aliqua particular eius proposita iudicare vel respondere’’ (‘‘It is improper, without looking at the whole of a law, to give judgment or advice, upon a view of any one clause of it’’). (Dig. 1, 3, 24). See Betti [22: 307]. 123 A. P. Buffo canon, defined as ‘‘canon of the actuality of understanding’’ [22: 314]. It requires interpreters to be aware that they understand the meaning of representative forms through their subjective mental categories, and on the basis of their own spiritual attitudes and noetic interest. The fourth and last canon, called ‘‘adequacy of understanding’’ or canon of the ‘‘hermeneutic correspondence and consonance’’ [22: 317], is closely related to the previous one. Through the fourth canon, Betti seeks to find a point of connection between two antithesis instances: the need for autonomy of the text and the actuality of understanding. In other words, it plays a mediating role within the dialectical process that is established between the interpreter and the interpretandum.63 This canon, indeed, invites the interpreter to harmonize as much as possible his own subjectivity with the stimulation received from the text. To be able to fully understand, the interpreter must immerse himself in the Spirit that speaks to him through the representative form.64 From this point of view, the requirement of actuality of understanding is not enough and it also needs an ‘‘open-mindedness’’ [22: 318] that allows the interpreter to dominate his prejudices and to be placed in the right, more congenial perspective to understand. Only in this way can he adapt his interpretative approach to the peculiar characteristics of the interpretandum. Precisely in the light of this latter aspect, it is possible to deal with a further part of Betti’s doctrine. Unlike Gadamer, who postulated the unity of hermeneutic experience, conceiving in a similar way the interpretive work of a theologian, jurist or musician, Betti distinguished three paradigms of interpretation: ‘‘purely recognitive’’, ‘‘reproductive’’ and ‘‘normative’’ [22: 347]. The assumption of his analysis is that although the epistemological problem of understanding is unique, there are several functions related to it. Consequently, changing the function changes the methodological indications that the interpreter must follow. When the interpretation plays a purely recognitive function, as in reading a novel, the understanding runs out in ‘‘in interiore homine’’ [22: 347] and it therefore has no practical outcome. In other words, the end of this first kind of interpretation is ‘‘pure understanding’’, or rather, ‘‘understanding for understanding’s sake’’. According to Betti, within this category are the philological and the historical interpretations. Whereas interpretation in the reproductive function not only intends to know the representative form but has the task of reproducing it in the most appropriate way possible. Think of the interpretation of a theatrical work or a musical composition. Here the purpose of understanding is not only to grasp the intentio auctoris but also to present it to others and hence in a way to actualize it. In this regard, Betti speaks of ‘‘intendere per far intendere’’ (‘‘understand to make somebody else understand’’) [22:347]. The third typology concerns the interpretation in normative function—typical of the juridical65 and theological66 universe—the purpose of which is ‘‘understanding in order to act’’.67 In these areas, indeed, the understanding is oriented to regulate

63 See Danani [37: 146]. 64 See Betti [22: 318]. 65 See Betti [22: 789–866]. See Frosini, Riccobono [50]. 66 For a thorough analysis of the theological interpretation, see Betti [22: 867–885]. 67 See Betti [22: 790]: ‘‘intendere per decidere (agire)’’. 123 Interpretation and Improvisation: The Judge and the… human action and to put into practice the meaning expressed by the representative form that is a sacred text or a law. Here, it is not possible to deepen the dynamics of each type of interpretation, according to Betti’s erudite perspective. Therefore, in the following section, we will mention only the peculiarities of musical interpretation.

4.1 The Aporia of the Musical Interpretation

According to Betti, there would be an aporia, apparently insurmountable, that marks the interpretation in musical field.68 This is an antithesis between the demand for a performer with inventive and artistic skills, and the need for him to respect an idea and a conception of others. The first requirement is closely linked to the canon of the actuality of understanding. The second one, on the other hand, is correlated to the canon of adequacy of understanding as well as to the canon of hermeneutic autonomy, which places the interpreter in front of the constraint expressed by the representative form. So, if the problem of musical interpretation lies within these two antinomic poles, in Betti’s view, both opposing solutions given from those who only concern one of these two poles are profoundly wrong. For Betti, in fact, are to be rejected as unilateral both the position of who, as Alfredo Parente, conceive the performance in a merely technical dimension, excluding any possible creative interpreter’s contribution,69 and the thesis of those who, as Salvatore Pugliatti, tend to confuse the interpretation with the creation ex novo. Rejecting the two conflicting solutions to the problem of antinomy between the actuality of understanding and the need to respect the autonomy of the object, there is nothing more than to resolve the aporia by taking into consideration the two requirements together. To do this, Betti argues that it is appropriate to divide the hermeneutics iter into two stages—the recognitive phase followed by a reproductive phase70—and into two ideal moments. The starting moment sees the prevalence of a philological and technical approach by the interpreter who is required to fully grasp the composer’s intention that arises from the reading of the score: notes, rests, rhythm, color and any other graphic sign in the musical page. Through his technical skills, he must find the appropriate reading key to make explicit what is implicit in the text, revealing ‘‘in the apparent hermetic nature of the musical page, that lyric that flows and silently pulsates in it’’.71 However, precisely in the research and execution of the voluntas compositor, crystallized in the score, the interpreter is placed before the task of integrating it, making it come alive, animating it through his/her sensibility, taste and inspiration.

68 See Betti [22: 760]. 69 See Parente [86: 220–223]. 70 See Betti [22: 763]. 71 See Betti [22: 763]: rivelare ‘‘entro l’apparente ermeticita` della pagina musicale, quella liricita` che vi scorre e pulsa silenziosa’’. 123 A. P. Buffo

In fulfilling this role, he meets the author’s artistic personality. This leads to opening a second phase that could be defined as dialectics.72 Indeed, the interpreter, who is preparing to perform the musical work, must investigate the expressive problem that the author has come up with when he created the score and compare it with the stylistic solution that he himself would have given. This generates a dialectical process between fidelity and renewal,73 which never ends in a perfect unit, as in the original creation, since it does not already have a content that is yet to be configured but a (representative) form already virtually completed. The interpreter, who can never be totally identified with the author, will be the constant mediator between a spirit that has in the past been objectified in a representative form and needs to actualize it in the present time. The complexity of musical interpretation lies between these two dialectic poles. Here you can see the difficult task of the interpreter, constantly called upon to perform the score, which is a form in a dynamical sense. Or rather, it could be said paraphrasing Pareyson, which constitutes, at the same time, a ‘‘forma formata’’ (formed form) and a ‘‘forma formante’’ (forming form).74

5 Law and Improvisation

In the last decade, the dialectic between creativity and form, between work-fidelity and freedom of the interpreter, which has always marked hermeneutical reflection, has allowed for the structuring of new links between music and law. The innovative point of contact between these two worlds is made by improvisation, becoming, well beyond the aesthetic dimension, an interesting paradigm of interaction between different fields of study,75 including the legal one.76 Improvisation, which from Baroque to jazz does not correspond to the realm of absolute freedom, acts as a trait d’union with the juridical experience. According to some scholars, indeed, there would be a broad range in which improvisation can act as a bridge between musical and legal analysis. In this light, overcoming the dogmas of , it can be conceived as an allegory for understanding and describing problematic sides of law;77 moreover, in a prescriptive intent, as a tool for improving the functioning of one’s and other areas of knowledge, as well as in a formalistic approach, investigating legal regulation produces on improvised practices such as, for example, in the field of copyright law.78

72 See Graziosi [60: 193]. 73 See Betti [22: 765]. 74 See Pareyson [88]. 75 See Sparti [109]. For more on this subject see the monographic number of the journal Critical Studies in Improvisation, 2010, vol 6, entitled ‘‘Lex non Scripta, Ars non Scripta: Law, Justice and Improvisation’’. More recently, for an interesting overview on this theme, see Lewis, Piekut [75]. 76 See Nitrato Izzo [84: 119–123]. 77 In this regard, Piper [95: 2] speaks of ‘‘law as improvisation approach’’. 78 See Piper [95: 4]. 123 Interpretation and Improvisation: The Judge and the…

This framework, however, does not exhaust the analytic areas associated with the relationship between improvisation and law. In this regard, an original reconstruc- tion of the concept of improvisation—defined as social and community practice, ethically oriented towards a model of social justice, and characterized by remarkable reverberations in legal theory—is outlined in Sara Ramshaw’s book on jazz and law, Justice as Improvisation. The Law of extempore.79 In her view, improvisation, if correctly understood,80 rather than an abstract metaphor for legal judgment is instead a true model for it. Assuming as a prerequisite of her reflection Derrida’s aporetic conception of justice, described in his study of the mystical foundation of authority,81 and intercepting the interdisciplinary approach of the Critical Studies in Improvisation, she ‘‘re-imagines law and justice as fundamentally improvisational in nature’’ [101: 93]. Indeed, discussing the doctrine of stare decisis in the light of the ineradicable judicial discretion, Ramshaw clarifies ‘‘how and why law must, mirroring improvisation, be both structured and free, general and singular’’ [101: 14]. This is particularly true in the doctrine of legal precedent, which does not regulate the judgment in an inflexible way, as is typically imagined. In fact, also in common law systems, judges retain the autonomy to ‘‘expand, contract and manipulate the ratio decidendi of a previously decided case’’ [40: 5], especially through a re-reading and reconstruction of factual and juridical circumstances. Here, together with the originality and the potential creative of each act of judgment, one can see the performative horizon of a law that always seems to be invented, through the judge’s decision, in a unique and singular way. In other words, improvisation stands out in judicial decision-making, illuminating the ongoing mediation work between the judge’s freedom to consider the singularity of the case and the presence of general legal rules that limit and direct his discretion. This paradigm seems to develop from two focal points. On the one hand, a conception that, exalting the singular or unpredictable character of law, hides a deep scepticism toward the ‘‘orthodox jurisprudence of modernity’’[42: IX]—oriented, as Douzinas put it, to construct theories that portray the law as a logical body of rule and principles—and shows to refuse a legal system seen as ‘‘perfectly formed, complete and coherent, waiting to be discovered’’ [42: IX]. Corollary of this analytical framework is the belief that the courts, pivot of the common law systems, play an active and dynamic role in the legal universe. Far from a static idea that looks at the judge as a mere spectator or as a ‘‘Subsumtionsmaschine’’ [108: 9], a machine that enforces the law. On the other hand, the reconsideration of some wrong stereotypes about (jazz) improvisation. In an attempt to demystify the wild origins of improvisation by pointing out that the latter cannot be conceived as an irrational practice, based exclusively on the artistic genius of the musician, Ramshaw criticizes two widespread misunderstandings. The first of these concerns the misconception for which interpretation is ‘‘formless’’, 82 refuses any protocols, does not tolerate rules. Far from being

79 Ramshaw [101]. 80 See Ramshaw [101: 72–90]. 81 See Derrida [41: 230–298]. 82 See Ramshaw [101: 71]. 123 A. P. Buffo

‘‘structure-less or chaotic’’ [4: 103], it requires technical mastery and discipline. Indeed, it does not correspond to the realm of illimitable possibility and absolute freedom but instead it still postulates certain basic forms to be respected, harmonic and melodic constraints, rhythmic and temporal limits. The second common belief she debunks is that improvisation has individualistic nature and ‘‘taking place in a social vacuum’’ [101: 83]. Many scholars, instead, believe that it is a ‘‘fundamen- tally social and collaborative’’ [107: 257] process that requires a continuous harmonization, especially during the jam sessions, between the individual person- ality and the group. In other words, the creative essence of the improvisation involves interaction, as the ‘‘musicians do not improvise in isolation’’ [33: 6]. As evidenced by Fischlin and Heble, ‘‘improvisation is less about original acts of self- creation than about an ongoing process of community building’’ [46: 17]. By projecting these reflections on jazz improvisation in the legal context, Ramshaw argues that to judge well and to decide justly, improvising, in a sense, is necessary. She concludes affirming that ‘‘all law is improvisation’’ [101: 3]. This theoretic elaboration of law through the category of improvisation undoubtedly reveals elements of originality and, thanks to its interdisciplinary nature, provides scholars with a number of ideas for reflection. Nevertheless, this perspective, while commendable in many ways, presents some questionable aspects which do not affect its conceptual framework. These aspects are mainly associated with the concept of improvisation. Firstly, as Benson put it, improvisation ‘‘presents us with something that only comes into being in the moment of its presentation’’ [17: 25]. It follows a fundamental feature of improvised act that clearly distinguishes it from the mise en œuvre of ‘‘classical’’ music: while in the latter the moment of creation and performance are structurally distinct; in improvisation, on the other hand, these two phases tend to coincide.83 This reductio ad unum, transposed entirely into the legal world, could raise some concerns, especially with reference to the separation of powers. In this regard, Zagrebelsky states that ‘‘In the legal field […] those who improvised, that is, those who claimed to eliminate the two moments—creation and execution—concentrating them in a single simultaneous act would not be legislators but dictators; they would not produce law but would exert force’’.84 The second questionable aspect concerns the irreversibility of any improvised act85: ‘‘the improviser—unlike the composer—does not have the luxury of rewriting or crossing out’’ [110: 186]. Indeed, improvisation, precisely because of its being at the same time creation and performance, makes it difficult to correct mistakes.86 However, in law it is sometimes necessary to conceive the possibility of reviewing a decision or remedying a judicial error. Moreover, this need is evidenced by the presence, in all jurisdictions, of multiple levels of Courts, which ensure a

83 See Bertinetto [19: 177]. 84 Brunello, Zagrebelsky [29: 41]: ‘‘Nel campo del diritto (…) chi improvvisasse, cioe` pretendesse di eliminare i due momenti—creazione ed esecuzione—concentrandoli in un solo simultaneo atto, non sarebbe legislatore, ma dittatore; non produrrebbe diritto ma eserciterebbe la forza’’. 85 See Sparti [109: 118–119]. 86 On the mistake in law and improvisation, see Ramshaw and Stapleton [102: 50–69]. 123 Interpretation and Improvisation: The Judge and the… supplement of analysis on judgments already pronounced. Nevertheless, this does not imply a total difference between the musical and legal spheres, as even in the legal order there is the irreversibility of the res judicata and the judgment of the supreme national and international courts that have no route of appeal. In any case, these debatable profiles do not obscure the value of this theoretical approach, which aims to use the category of improvisation as a tool for interaction between music and law. Indeed, in grasping the problematic relationship between form and creativity in judicial activity, it illuminates many crucial points of the entire postmodern legal landscape. This applies not only with reference to common law areas—characterised by judge-made law and based on the doctrine of stare decisis—for which this perspective, at first sight, may seem more appropriate, but also in civil law contexts where the crisis of legislation, which has become more hypertrophic, chaotic and obscure, has changed the role of the judge by extending his/her functions87 beyond the narrow perimeter of judicial syllogism and increasing that degree of flexibility inherent in all judgments, described by Aristotle through the refined metaphor of the Lesbian Rule.88 In this regard, the revitalization of the role of the judge, even in civil law traditions, in perfect harmony with the current pluralism of legal sources, marks the end of the ‘‘mythologies of the modern age’’89 and its idols. The sunset of modernity, indeed, has shaken the foundations of the edifice built by legal science on the two cornerstones of statism and legalism. Legal postmodernism has desacralized the state in its role as a single and omnipotent nomoteta and has broken the circle of legal dogmatics, promoting, through a renewed protagonism of society, the multifaceted richness of legal experience. This scenario has altered the set of sources of law. The latter, multiplied and de-territorialized, no longer reflect the old image of the hierarchical pyramid, an expression of the geometrical rationality of the concatenated structure, acutely described by Kelsen.90 On the other hand, a new categorical schema emerges: a network structure, a ‘‘network model’’ [115: 59], resulting from the ongoing interplay of the relationship between regulatory elements and legal actors. In the light of these res novae, it is necessary to emphasize, along with the transition from the centrality of the law to the centrality of the judge, a further change related to liquid modernity: the evolution from the jurist conceived as ‘‘a receptor of normative substances already predetermined by the holder of political power’’ [116: 302] to the jurist conceived as a ‘‘weaver’’ 91 who actively participates in the realization of the legal order. In this milieu, the hypothesis of law as improvisation would seem to be particularly effective and fruitful in mirroring the mechanisms of judicial decision- making. Furthermore, it offers the precious value of preventing the freedom of the interpreter from degenerating into arbitrariness. From this point of view, indeed, the

87 See Viola, Zaccaria [114: 145]. 88 See Aristotle [6: 176]. 89 See Grossi [63]. 90 See Pastore [89: 19–49]. 91 See Vogliotti [116: 299–317]. 123 A. P. Buffo presence of formal structures and rules in the extemporaneous processes as well as the conception of improvisation as a social and collaborative process, requiring an incessant comparison with the interpretative community, avoid the risks of extreme subjectivism. And, most importantly, it guarantees a reasonable level of pre- dictability92 as inventive skills of the improviser develop within specific harmonic and rhythmic patterns. Moreover, this is the same reasonable level of predictability that can be achieved in the postmodern legal world: a realistic level which does not reflect the conception of legal certainty as an absolute value93 but as a ‘‘relative and gradable’’94standard. Only a relative certainty, on the other hand, can promote, in a pluralistic society, a reasonable degree of justice, building a bridge between law and life, between the abstractness of regula iuris and the case, between the immobility of the normative text and the fluidity of the social context that interacts with it.

6 Conclusion

New connections enrich the deep affinity and the symbolic convergence that have linked, since antiquity, music and law. Shifting the centre of gravity of reflection from the historical-cultural level—in which the convergence between music and law was essentially to be found in their common ethical and pedagogical function—to the analytical dimension, further parallels between the two subjects can be explored. Indeed, both are performative disciplines: as Balkin and Levinson put it, ‘‘law, like music or drama, is best understood as performance—the acting out of texts rather than the texts themselves’’ [13: 1518].95 Both are arts a` deux temps requiring, in addition to the time of writing the text, a subsequent and additional time of execution or application. For both, being coded sign systems, the interpretative process is crucial as it entails the epistemological problem of understanding that incorporates the structural tension between the subjectivity of the interpreter and the objectivity of the representative forms. As I have tried to show in this article, the importance of the interpreter is related, in both fields, to the common open texture character of the score and of law. The latter, in fact, do not constitute self-sufficient entities but need to be interpreted and, through the hermeneutic process, actualized. It follows that the task of the interpreter cannot be reduced to mere exegesis—a musician cannot be a pure executor of a concatenation of musical symbols on the staff as Stravinsky argued nor may a judge be conceived as the bouche de la loi according to Montesquieu’s theory—because he/she is called upon to reconcile the abstract schema of the representative form with life. In this effort of constant mediation lies the paradox of

92 Peters [91: 6], very interestingly, posits that most improvisation is actually predictable: ‘‘it is precisely the improviser’s desire for certainty that does indeed protect formal structures from any serious disruption or deconstruction—that’s the point. (…) If you want uncertainty then stay away from improvisation’’. 93 See Lopez De On˜ate [79]. On this subject see Lombardi Vallauri [78: 575–601], Jori and Pintore [73: 194–198], Gianformaggio [55], Luzzati [80], Bertea [18], Campanale [30] and Gometz [56]. 94 See Luzzati [80: 290]. 95 See also Balkin, Levinson [14]. 123 Interpretation and Improvisation: The Judge and the… the interpreter according to which, on the one hand, he/she has to maintain total control of his/her own person so as to respect the voluntas auctoris but, at the same time, he/she has to leave room for creativity in order to make the text come alive. This paradox, revealing the controversial nature of the Werketreue ideal, poses the question of the extent of freedom allowed to the interpreter. The perpetual quest for a balance between creativity and form emerges also in the field of improvisation, a social practice which, if correctly understood, can provide an interesting paradigm of interaction between musical and legal analysis. In particular, reconsidering some mistaken stereotypes about (jazz) improvisation— especially the misconception that it is the realm of unlimited possibility and absolute freedom, formless and chaotic—it is possible to build a further bridge between law and music: a bridge which, while presenting some questionable aspects, deserves to be built as it illuminates the nature of judicial decision-making and helps us to understand the ongoing mediation work between the judge’s freedom to consider the singularity of the case and the presence of general legal rules that limit and direct his/her discretion.

Acknowledgements I wish to express my thanks to Professors Eugenio Picozza and Christopher Williams for their valuable advice and suggestions which helped to improve the article.

References

1. Adorno, Theodor Ludwig Wiesengrund. 1962. Einleitung in die Musiksoziologie: zwo¨lf theoretische Vorlesungen. Frankfurt am Main: Suhrkamp Verlag. English Edition (1976) Introduction to the Sociology of Music (trans: Ashton E.B.). New York: The Seabury Press. 2. Agostino d’Ippona. 1992. De Musica (trans: Bettetini, M.). Milano: Rusconi. 3. Allen, Carleton Kemp. 1939. Law in the Making, 3rd ed. Oxford: Clarendon Press. 4. Alterhaug, Bjørn. 2004. Improvisation on a Triple Theme; Creativity, Jazz Improvisation and Communication. Studia Musicologica Norvegica 30: 97–118. 5. Alessandro, Argiroffi. 1994. Valori, prassi, ermeneutica: Emilio Betti a confronto con Nikolai Hartmann e Hans Georg Gadamer. Torino: Giappichelli. 6. Aristotle. 1906. The Nichomachean Ethics of Aristotle, 10th ed (trans: Peters, F.H.). London: K. Paul, Trench, Tru¨bner. 7. Aristotle. 1927. Problemata. In The Works of Aristotle (trans: Forster, E.S.). ed. William David Ross, vol. 7, Book 19, 920a. Oxford: Clarendon Press. 8. Ascarelli, Tullio. 1955. Antigone e Porzia. Rivista Internazionale di filosofia del diritto 756–766. English edition: Ascarelli, Tullio (2015) Antigone e Portia (trans: Crea, C.). The Italian Law Journal 2: 167–180. 9. Ascarelli, Tullio. 1957. Giurisprudenza costituzionale e teoria dell’interpretazione. Rivista di diritto processuale 12 (2): 351–363. 10. Ascoli, Max. 1928. La interpretazione delle leggi. Saggio di filosofia del diritto. Roma: Athenaeum. 11. Auer, Marietta. 2002. Good Faith. A Semiotic Approach. European Review of Private Law 2: 279–301. 12. Balkin, Jack M., and Sanford Victor Levinson. 1991. Law, Music, and Other Performing Arts. University of Pennsylvania Law Review 139: 1597–1658. 13. Balkin, Jack M., and Sanford Victor Levinson. 1999. Interpreting Law and Music: Performing Notes on ‘The Banjo Serenader’ and ‘The Lying Crowd of Jews’. Cardozo Law Review 20: 1513–1572. 14. Balkin, Jack M., and Sanford Victor Levinson. 1999. Law as Performance. In Law and Literature, ed. Michael Freeman, and Lewis Andrew, 729–751. Oxford: Oxford University Press. 15. Baratono, Adelchi. 1945. Arte e poesia. Milano: Bompiani. 16. Bauman, Zygmunt. 2000. Liquid Modernity. Cambridge: Polity Press.

123 A. P. Buffo

17. Benson, Bruce Ellis. 2003. The Improvisation of Musical Dialogue: A Phenomenology of Music. Cambridge: Cambridge University Press. 18. Bertea, Stefano. 2001. La certezza del diritto nel dibattito teorico-giuridico contemporaneo. Ma- teriali per una storia della cultura giuridica 31 (1): 131–164. 19. Bertinetto, Alessandro. 2015. Mind the Gap. L’improvvisazione come azione intenzionale. Itinera 10: 175–188. 20. Betti, Emilio. 1948. Le categorie civilistiche dell’interpretazione. Rivista italiana per le scienze giuridiche 34–86. 21. Betti, Emilio. 1949. Interpretazione della legge e degli atti giuridici (teoria generale e dogmatica). Milano: Giuffre`. 22. Betti, Emilio. 1955. Teoria generale dell’interpretazione. In Edizione riveduta e ampliata (1990), vol. 1–2, ed. Giuliano Crifo`. Giuffre`: Milano. 23. Betti, Emilio. 1962. Die Hermeneutik als allgemeine Methodik der Geisteswissenschaften: zugleich ein Beitrag zum Unterschied zwischen Auslegung und Sinngebung.Tu¨bingen: Mohr (Paul Siebeck). 24. Betti, Emilio. 1967. Allgemeine Auslegungslehre als Methodik der Geisteswissenschaften.Tu¨bin- gen: Mohr (Paul Siebeck). 25. Bobbio, Norberto. 1951. La certezza del diritto e` un mito? Rivista internazionale di filosofia del diritto 1: 146–152. 26. Boethius, Anicius Manlius Severinus. 1989. Fundamentals of Music (trans: Bower, C.M.). New Haven: Yale University Press. 27. Brendel, Alfred. 1997. Paradosso dell’interprete. Pensieri e riflessioni sulla musica. Firenze: Passigli editore. 28. Britten, Benjamin. 2003. On Receiving the First Aspen Award. Speech given in Aspen, Colorado, on 31 July 1964. In Britten on Music, ed. Paul Kildea. London, Oxford: Faber & Faber, Oxford University Press. 29. Brunello, Mario, and Gustavo Zagreblesky. 2016. Interpretare. Dialogo tra un musicista e un giurista. Bologna: il Mulino. 30. Campanale, Anna Maria. 2001. L’incerto diritto. Pisa: Tipografia Editrice Pisana. 31. Canetti, Elias. 1960. Masse und Macht. Hamburg: Claassen Verlag. English edition: (1978) Crowds and Power (trans: Stewart, C.). New York: Continuum. 32. Chiassoni, Pierluigi, Eveline Feteris, and Hanna Maria Kreuzbauer. 2016. Taking Stock of the Past: Rhetoric, Topics, Hermeneutics. In A Treatise of Legal Philosophy and General Jurisprudence. Legal Philosophy in the Twentieth Century: The Civil Law World, vol. 12. Tome 2, ed. Enrico Pattaro, and Corrado Roversi, 627. Berlin: Springer. 33. Cobussen, Marcel. 2008. Introduction. New Sound (Special Issue: Improvisation) 32: 5–7. 34. Corradini, Domenico. 1974. Croce e la ragione giuridica borghese. Bari: Laterza. 35. Cossutta, Marco. 2011. Sull’interpretazione della disposizione normativa e sui suoi possibili rap- porti con l’interpretazione musicale. Rivista di Scienze della Comunicazione 1: 101–112. 36. Cossutta, Marco. 2012. Interpretazione ed esperienza giuridica. Sull’interpretazione creativa nella societa` pluralista. Trieste: Edizioni Universita` di Trieste. 37. Danani, Carla. 1998. La questione dell’oggettivita` nell’ermeneutica di Betti. Milano: Vita e Pensiero. 38. Danani, Carla. 2001. Il contributo di Emilio Betti nel quadro della cosiddetta crisi della koine` ermeneutica. Acta Philosophica 10 (1): 5–28. 39. Dante, Alighieri. 1904. The De Monarchia of Dante Alighieri, edited with translation and notes by Aurelia Henry. Boston, New York: Houghton, Mifflin and Company. 40. Dennis, James L. 1993. Interpretation and Application of the Civil Coded and the Evaluation of Judicial Precedent. Louisiana Law Review 54: 1–17. 41. Derrida, Jacques. 2002. Force of law. The Mystical Foundation of Authority. In Acts of Religion, ed. Gil Anidjar, 230–298. New York: Routledge. 42. Douzinas, Costas, Ronnie Warrington, and Shaun McVeigh. 1991. Postmodern Jurisprudence: The Law of Text in the Texts of Law. London: Routledge. 43. Endicott, Timothy. 2000. Vagueness in Law. Oxford: Oxford University Press. 44. Faralli, Carla. 1997. Certezza del diritto o diritto alla certezza? Materiali per una storia della cultura giuridica 1: 89–104. 45. Faralli, Carla. 2001. Il « diritto alla certezza » nell’eta` della decodificazione. In: Scritti giuridici in onore di Sebastiano Cassarino. Padova: Cedam. I: 623 ss.

123 Interpretation and Improvisation: The Judge and the…

46. Fischlin, Daniel, and Ajay Heble (eds.). 2004. The Other Side of Nowhere: Jazz, Improvisation, and Communities in Dialogue. Middletown: Wesleyan University Press. 47. Frank, Jerome. 1930. Law and Modern Mind. New York: Brentano’s. 48. Frank, Jerome. 1947. Words and Music: Some Remarks on Statutory Interpretation. Columbia Law Review 47 (8): 1259–1278. 49. Frank, Jerome. 1948. Say it with Music. Harvard Law Review 61 (6): 921–957. 50. Frosini, Vittorio, and Riccobono Francesco (eds.). 1994. L’ermeneutica giuridica di Emilio Betti. Milano: Giuffre`. 51. Gadamer, Hans-Georg. 1960. Wahrheit und Methode.Tu¨bingen: Mohr (Paul Siebeck). English edition: Truth and Method (19922) (trans: Weinsheimer, J., Marshall, D.G.). New York: Crossroad. 52. Gadamer, Hans-Georg. 1961. Hermeneutik und Historismus. Philosophische Rundschau 9 (4): 241–276. 53. Gadamer, Hans-Georg. 1978. Emilio Betti und das idealistische Erbe. Quaderni fiorentini per la storia del pensiero giuridico 7: 5–11. 54. Gatti, Guido Maria. 1930. Del problema dell’interpretazione musicale. La Rassegna Musicale 225–232. English trans (1931) On the Interpretation of Music. The Musical Quarterly 17(2):195–203. 55. Gianformaggio, Letizia. 1988. Certezza del diritto. In: Digesto. Discipline privatistiche. Sezione civile, vol 2, 274–278. Torino: Utet. 56. Gometz, Gianmarco. 2012. Indici di certezza del diritto. Diritto & Questioni Pubbliche 12: 309–343. 57. Gorla, Gino. 1941. L’interpretazione del diritto. Milano: Giuffre`. 58. Gouhier, Henri. 1989. Le The´aˆtre et les arts a` deux temps. Paris: Flammarion. 59. Gray, John Chipman. 1921. The Nature and Sources of the Law. New York: Macmillan. 60. Graziosi, Giorgio. 1938. Note sull’interpretazione. La Rassegna Musicale 11 (5–6): 189–214. 61. Graziosi, Giorgio. 1952. L’interpretazione musicale. Torino: Einaudi. 62. Grossi, Paolo. 1998. Le aporie dell’assolutismo giuridico. (Ripensare, oggi, la lezione metodologica di Tullio Ascarelli). In: Assolutismo giuridico e diritto privato. Milano: Giuffre`. 63. Grossi, Paolo. 2007. Mitologie giuridiche della modernita`. Milano: Giuffre`. 64. Guastini, Riccardo. 1997. Enunciati normativi. Ars Interpretandi 2: 35–52. 65. Ha¨berle, Peter. 2000. Die Geburt der modernen Staatsmusik. In Beethovens Neunte. EineBiogra- phie, ed. Esteban Buch. Berlin: Propyla¨en Verlag. 66. Ha¨berle, Peter. 2007. Nationalhymnen als kulturelle Identita¨tselemente des Verfassungsstaates. Berlin: Duncker & Humblot. 67. Ha¨berle, Peter. 2012. Musica e ‘‘diritto’’ all’interno del dibattito della dottrina della Costituzione come scienza della cultura. In Arte e limite. La misura del diritto (trans: Mangiameli, G.). eds. Amato Mangiameli, Agata, Faralli, Carla, Mittica and Maria Paola. Roma: Aracne Editrice. 68. Hegel, Georg Wilhelm Friedrich. 18412. Wissenschaft der Logik, vol. 1. Berlin: Duncker & Humblot. 69. Hirsch, Gu¨nter. 2007. Auf dem Weg zum Richterstaat? Vom Verha¨ltnis des Richters zum Geset- zgeber in unserer Zeit. Juristenzeitung 18: 853–858. 70. Hobbes, Thomas. 2004. The Leviathan. Whitefish: Kessinger Publishing. 71. Holmes, Oliver Wendell. 1897. The Path of the Law. Harvard Law Review 10: 460–461. 72. Iudica, Giovanni. 2004. Interpretazione giuridica e interpretazione musicale. Rivista di Diritto Civile 2: 467–479. 73. Jori, Mario, and Anna Pintore. 1985. Manuale di teoria generale del diritto. Torino: Giappichelli. 74. Krenek, Ernst. 1944. The Composer and the Interpreter. Black Mountain College Bulletin 3 (2): 1–8. 75. Lewis, George, and Benjamin Piekut (eds.). 2016. The Oxford Handbook of Critical Improvisation Studies. New York: Oxford University Press. 76. Llewellyn, Karl Nickerson. 1931. Some Realism about Realism: Responding to Dean Pound. Harvard Law Review 44 (8): 1222–1264. 77. Llewellyn, Karl Nickerson. 1962. Jurisprudence: Realism in Theory and Practice. Chicago: The University of Chicago Press. 78. Lombardi Vallauri, Luigi. 1975. Saggio sul diritto giurisprudenziale. Milano: Giuffre`. 79. Lopez De On˜ate, Flavio. 1968. La certezza del diritto (1942). Milano: Giuffre` (ristampa, curata da Astuti, Guido).

123 A. P. Buffo

80. Luzzati, Claudio. 1999. L’interprete e il legislatore. Saggio sulla certezza del diritto. Milano: Giuffre`. 81. Montesquieu, Charles-Louis. 1835. De l’esprit des lois. In Id. Œuvres comple`tes. Paris: Lefe`vre. 82. Muti, Riccardo. 2012. Verdi, l’italiano. Ovvero, in musica, le nostre radici. Milano: Rizzoli. 83. Nitrato Izzo, Valerio. 2007. Interpre´tation, musique, droit: performance musicale et exe´cution de normes juridiques. Revue interdisciplinaire d’e´tudes juridiques 58: 99–127. 84. Nitrato Izzo, Valerio. 2011. Diritto e musica: performance e improvvisazione nell’interpretazione e nel ragionamento giuridico. In Diritto e Narrazioni. Temi di diritto, letteratura e altre arti, Atti del Secondo Convegno della Italian Society for Law and Literature. ed. Maria Paola Mittica, 111–126. Milano. 85. Parente, Alfredo. 1931. Attivita` artistica e passivita` interpretativa. La Rassegna Musicale 4 (5): 292–296. 86. Parente, Alfredo. 1936. La musica e le arti, Problemi di estetica. Bari: Laterza. 87. Paresce, Enrico. 1972. Interpretazione (filosofia). Enciclopedia del Diritto, vol. 22, 152–238. Milano: Giuffre`. 88. Pareyson, Luigi. 1954. Estetica: teoria della formativita`. Firenze: Bompiani. 89. Pastore, Baldassarre. 2014. Interpreti e fonti nell’esperienza giuridica contemporanea. Padova: Cedam. 90. Peirce, Charles Sanders. 1931. Collected Papers, vol. 1. Cambridge: Harvard University Press. 91. Peters, Gary. 2012. Certainty, Contingency, and Improvisation. Critical Studies in Improvisation/ E´ tudes critique en improvisation 8 (2): 1–8. 92. Picozza, Eugenio. 2006. Il metronomo: problemi di interpretazione tra musica e diritto. Ars Interpretandi 9: 327–366. 93. Picozza, Eugenio. 2012. Il problema dell’interpretazione tra diritto e musica. In Amato Mangiameli, Agata. Arte e limite. La misura del diritto, ed. Carla Faralli, and Maria Paola Mittica, 73–120. Roma: Aracne Editrice. 94. Picozza, Eugenio. 2017. Creazione, trascrizione, esecuzione, interpretazione tra musica e diritto. Diritto e Processo Amministrativo 2: 601–630. 95. Piper, Tina. 2010. The improvisational Flavour of Law, the Legal Taste of Improvisation. Critical Studies in Improvisation/E´ tudes critique en improvisation 6 (1): 1–5. 96. Plato. 1961. Laws (trans: Bury, Robert Gregg). Cambridge: Harvard University Press. 97. Pound, Roscoe. 1910. Law in Book and Law in Action. American Law Review 44: 12–36. 98. Pratelli, Giulia. 2017. Diritto e Musica. Il comune terreno dell’interpretazione. L’esperienza di Arturo Toscanini e Gustav Mahler. In Italian Society for Law and Literature Papers, vol 10. eds. Carla Faralli, and Maria Paola Mittica, 1–17. 99. Pugliatti, Salvatore. 1940. (reprint 1991) L’interpretazione musicale. Messina: Edizioni Secolo Nostro. 100. Quaglioni, Diego. 2011. ‘‘Arte di bene e d’equitade’’. Ancora sul senso del diritto in Dante. Studi Danteschi 76: 27–46. 101. Ramshaw, Sara. 2013. Justice as Improvisation. The Law of Extempore. London: Routledge. 102. Ramshaw, Sara, and Paul Stapleton. 2015. Un-remembering: Countering Law’s Archive. Impro- visation as Social Practice. In Law, Violence, Memory: Uncovering the Counter-Archive, ed. Ste- wart Motha, and Honni van Rijswijk. London: Routledge. 103. Randel, Michael, and Nils Nadeau. 1980. Isidore of Seville (voce). In New Grove Dictionary of Music and Musicians, vol. 9, ed. Stanley Sadie, 340–341. London: Macmillan. 104. Resta, Giorgio. 2011. Il giudice e il direttore d’orchestra, variazioni sul tema: diritto e musica. Materiali per una storia della cultura giuridica 41 (2): 435–460. 105. Ru¨thers, Bernd. 2002. Demokratischer Rechtsstaat oder oligarchischer Richterstaat? Juristenzeitung 8: 365–370. 106. Sarat, Austin, Matthew Anderson, and Cathrine Frank (eds.). 2010. Law and the Humanities: An Introduction. New York: Cambridge University Press. 107. Sawyer, Robert Keith. 2006. Explaining Creativity: The Science of Human Innovation. Cary: Oxford University Press. 108. Schmitt, Carl. 19692. Gesetz und Urteil. Eine Untersuchung zum Problem der Rechtspraxis. Mu¨nchen: Beck Verlag. 109. Sparti, Davide. 2005. Suoni inauditi. L’improvvisazione nel jazz e nella vita quotidiana. Bologna: il Mulino.

123 Interpretation and Improvisation: The Judge and the…

110. Sparti, Davide. 2016. On the Edge A Frame of Analysis for Improvisation. In The Oxford Handbook of Critical Improvisation Studies, vol. 1, ed. George Lewis, and Benjamin Piekut, 186–201. New York: Oxford University Press. 111. Stravinsky, Igor. 1947. Poetics of Music. In The Form of Six Lessons (trans: Knodel Arthur, Dahl, Ingolf). Cambridge, Harvard University Press. 112. Tarello, Giovanni. 1957. A proposito di un libro del Frank. Rivista internazionale di filosofia del diritto 464–467. 113. Treves, Renato. 1966. Dall’idealismo storicistico alla sociologia del diritto. Impressioni antiche e recenti su un libro sull’interpretazione delle leggi. Rivista internazionale di filosofia del diritto 43: 369–378. 114. Viola, Francesco, and Giuseppe Zaccaria. 1999. Diritto e interpretazione. Lineamenti di teoria ermeneutica del diritto. Roma-Bari: Laterza. 115. Viola, Francesco. 1990. Il diritto come pratica sociale. Milano: Giuffre`. 116. Vogliotti, Massimo. 2007. Tra fatto e diritto. Oltre la modernita` giuridica. Torino: Giappichelli. 117. Weber, Max. 1958. The Rational and Social Foundations of Music (trans: Martindale, Don, Riedel Johannes, Neuwirth, Gertrud). Carbondale: Southern Illinois University Press. 118. Weber, Max. 1958. Science as a Vocation. In From Max Weber: Essays in Sociology, ed. Hans Gerth, and Wright Mills Charles. New York: Oxford University Press. 119. Zaccaria, Giuseppe. 2003. Testo giuridico e linguaggi: una prospettiva ermeneutica. In Diritto privato, L’interpretazione e il giurista. vol 7–8, 5–33. Padova: Cedam. 120. Zaccaria, Giuseppe. 2010. Interpretazione della legge. Annali Enciclopedia del Diritto, vol. 5, 694–709. Milano: Giuffre`. 121. Zimmermann, Reinhard, and Simon Whittaker (eds.). 2000. Good Faith in European Contract Law, vol. 1, 1st ed, 1. Cambridge: Cambridge University Press.

123