Interpretation and Improvisation: the Judge and the Musician Between Text and Context
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Int J Semiot Law 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 justice. Keywords Interpretation Á Legal realism 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, Italy 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 Laws 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 Aristotle [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 Philosopher, 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 Max Weber 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.