Law, Music, and Other Performing Arts, Part III

Originally published in 139 U. Pa. L. Rev. 1597 (1991).
Copyright 1991 J.M. Balkin and Sanford Levinson. All Rights Reserved

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III. Interpretation And Modernist Anxiety


It is our thesis that the early-music movement is best understood as attempting what the English historian Eric Hobsbawm calls the "invention of tradition."(1) Hobsbawm defines "'invented' traditions" as "responses to novel situations which take the form of reference to old situations, or which establish their own past by quasi-obligatory repetition."(2) Faced with "the constant change and innovation of the modern world," one engages in an "attempt to structure at least some parts of social life within it as unchanging and invariant."(3)

Hobsbawm contrasts this pseudo-traditionalism to participation in a living and developing tradition, and, interestingly, one example he gives is the English common law, which he argues is characterized by a remarkable combination of "flexibility in substance and formal adherence to precedent."(4) In Hobsbawm's view, the common law could never "afford to be invariant, because even in 'traditional' societies life is not so."(5) Variance means change, which means history and the realization of "break[s] in continuity."(6) Paradoxically, to the extent that one feels firmly rooted in a culture, such changes may be easily assimilated and treated, as we saw earlier, merely as surface manifestations of deeper unchanging continuities that legitimate the enterprise. Thus, it is crucial to note that Charles Rosen, after arguing that "[m]ultiple possibilities of realizing a musical text are a basic tradition of Western music," immediately follows with the clause, "a tradition which no longer apparently has any reality"(7) for "authentic" performance devotees. As "breaks" increasingly become defined as "ruptures" separating the past and the present, the stage is set for those who, dismayed by present practice, preach return to the purity of the past. Such revivalist movements, "common among intellectuals since the Romantics, can never develop or even preserve a living past (except conceivably by setting up human natural sanctuaries for isolated corners of archaic life), but must become 'invented tradition,'"(8) committed to stasis and condemning as impurity, heresy, and defilement what a truly living tradition might see simply as admirable "adaptability."(9)

Many of the essays in Authenticity and Early Music are not centrally concerned with "proper" standards of interpretation at all. They ask a much deeper question: What explains the development at this juncture of our culture of a movement organized around the notion of authenticity in musical performance? This question has implications reaching far beyond the particularity of music; it touches on central aspects of the experience of modernity in Western culture as a whole, including, most certainly, its legal aspects. Thus the study of music, on the surface so different from law, enables us to see things in our own discipline that were there all along but hidden by our very familiarity with it. By studying what the crisis of modernity has meant in music, we can better understand its impact on the law. To handle this crucial topic adequately would require a book of its own. This essay can do nothing more than sketch some points of comparison and suggest further questions for investigation.

There are many ways of describing the phenomenon of modernity and its relation to what has come to be called the postmodern condition. We might view modernity as the increasing recognition, especially since the Enlightenment, of the conflict between reason and tradition, including revealed religion, as modes of understanding the world.(10) We might understand it as the increasing victory of secular or worldly conceptions of life over the religious and transcendent.(11) We might view it as the increasing replacement of traditional modes of social organization by the bureaucratization and rationalization of society,(12) or as the eventual collapse of the concept of reason into a barren instrumentalism.(13)

We emphasize that modernity is a contested theoretical concept, which might be extended to much of Western culture since the Renaissance or restricted to the particular cultural issues of the late nineteenth and twentieth centuries, which is our particular focus.(14) Moreover, the features often ascribed to modernity are not always peculiar to the "modern" age, however it is defined. For example, the tension between reason and tradition characteristic of the modern age scarcely begins with the twentieth century, or even with the Enlightenment. One can find anti-traditionalism in the rationalism of Descartes and the skepticism of Hobbes, and still further back in debates in ancient Greek thought. Although we see the conflict between reason and tradition, and the concomitant sense of the disintegration and collapse of tradition as an integral part of what we call "modernity," we do not claim that it is unique to the modern era. Indeed, it is more likely that history is full of what might be called "modernist crises" in many different lands and times. To speak of modernity, thus, is to speak of one particular cultural moment in Western thought, when the conflict between reason and tradition not only becomes central, but is commingled with other elements that are more peculiarly of our age, such as mass industrialization, and the increasing rationalization and bureaucratization of society.

In this essay we focus on a single strand of the experience of modernity -- our relation to the past and, in particular, to the cultural traditions that constitute it. From this perspective, the experience of modernity is the increasing sense of isolation and estrangement from the past and from tradition, spurred on by constantly accelerating changes in culture, economy, and technology.(15) Viewed solely as the collapse of tradition and separation from the past, "modernity" is surely nothing new. Each generation throughout history has probably spoken of the "good old days" that are long past.(16) One can find jeremiads bewailing the loss of past tradition to change and cosmopolitanism throughout human history, and to the this extent the present era has more in common with previous ones than theorists of modernity often admit.(17) What distinguishes our own particular "modern" period is an accelerating spiral of technology and bureaucracy unlike any other in human history; as a result, the sense of distance and fragmentation from the past appears to have become a central, pervasive, and seemingly permanent element of the experience of culture.(18)

Moreover, "modernity," as suggested by Hobsbawm's essay, is linked to the development of a specifically historical sensibility that focuses on the cultural segmentation of time rather than its continuity. An increased attention to the historicist elements of culture brings with it an understanding of the profound differences between the perceptions of times past (and irrevocably lost) and those of our own. It is just such an understanding that leads us to develop periodizations of time -- e.g., "ancient times," the "middle ages," and the like -- that serve not only to divide the calendar but also to mark significant changes of consciousness that separate the inhabitants of one culture from those of another. Some may applaud such changes as have occurred, as is true of those who see history as a progressive liberation from the cultural blinders dominating past epochs. Others may instead bewail these changes and see them instead as symptoms of decline from some presumably better state of things in the past.(19) But perhaps now more common is the rejection either of applause or of dejection, which are themselves recognized as the products of specific cultural moments, in favor of a somewhat more detached acceptance of the inevitability of change and our inability to place such changes as occur within any master narrative. Our awareness of the breaks between the past and our present situation is joined with a confidence (if that is the right word) that the future will bring equal ruptures that will lead to our own epoch being understood as merely one specific cultural moment. As one of the greatest living historians, David Brion Davis, reminds us, "in the future our own mixtures of insight and blindness will be interpreted from that then-present perspective from which one tries to understand the past. We will then be perceived in ways that we cannot perceive ourselves."(20)

It is precisely this awareness of perceptual gaps, of commitments to such fundamentally different paradigms of understanding that characterizes much of modernist sensibility.

The literary scholar Paul Fussell, writing about the impact of World War I on Anglo-American culture, argues that "the most pervasive contribution of modern war to modernist culture is irony, widely perceived to be . . . the 'normative mentality' of modern art."(21) Just as Roland Barthes is said to have noted that one can unabashedly say "I will love you forever" only once in one's life, so does an awareness of historical situatedness cause us to stand at a suitable distance from our own most deeply held convictions. To put it mildly, questions about the meaning of authenticity, whether of one's beliefs or practices, go to the heart of modernist culture.(22)

As Will Crutchfield notes in his essay "Fashion, Conviction, and Performance Style," the word authenticity has many meanings. It may refer to fidelity to the composer's intentions, or to the composer's text.(23) Yet, Crutchfield insists, there is a more appropriate meaning of authenticity of performance: "This authenticity is what the standee at the opera means when he says he has heard 'the real thing,' 'the genuine article.'"(24) When a performance is authentic in the sense of genuineness, "we feel the music and musician are one . . . . The Irish theologian William Fitzgerald supplied . . . the right citation for this: 'That is called Authentic, which is sufficient unto itself, which commends, sustains, proves itself, and hath credit and authority from itself.'"(25)

The notion of authenticity as genuineness is deeply tied to the concept of tradition and one's relation to the past. The authentic performance is immersed in a tradition, so that the tradition springs from within it unself-consciously; it is the living embodiment of tradition, of the past. That is why it is sufficient to itself, and needs authority from no outside source. Hence another meaning of "authentic" is idiomatic, sincere, and unaffected. Nevertheless, this conception of authenticity leads to what we might call the "paradox of authenticity." The more one self-consciously tries to be authentic to a tradition, the less authentic one's practice becomes; conversely, true authenticity always emerges where one least expects it, and indeed, it emerges virtually without any effort on the part of the actors who are enmeshed in authentic practice.

At the risk of frivolity, we might offer a gustatory example drawn from our mutual experiences in the Southwestern United States. We refer, of course, to Tex-Mex cuisine. For those who have not been introduced to this contribution of the great state of Texas, Tex-Mex is an adaptation (some purists would say adulteration) of traditional Mexican dishes by both Chicanos and Anglos living in Texas. Tex-Mex cuisine has by now become quite popular around the United States. Indeed, from Seattle to New York City one can see signs advertising "Authentic Tex-Mex Cuisine." As one might suspect, those of us from Texas have only contempt for such assertions of authenticity, similar, we suspect, to the response of a French visitor to being taken to the "Paris Restaurant, featuring authentic French cuisine." Yet at the same time, there is something quite bizarre about the notion of authentic Tex-Mex food. This is, after all, a cuisine whose delicate flavors are produced by prodigious quantities of canned Ro-Tel tomatoes and great slabs of Kraft Velveeta. From the standpoint of "authentic" Mexican food, Tex-Mex is itself an abomination, a veritable monument to inauthenticity.

And yet, at the same time, there is no doubt that Texans can always spot an authentic Tex-Mex institution.(26)

The streets of East Austin are full of them, and people are quite vocal about their favorites. Indeed, some people even prefer Tex-Mex to other types of Mexican food. The inauthentic has become the standard of authenticity. The alteration of old habits, the addition of new ingredients, the catch-as-catch-can recombination of elements has produced a new cuisine in its own right that can be authentically or inauthentically reproduced. And the moment that we realize that there can be "authentic" Tex-Mex cuisine -- itself the product of a previous inauthenticity -- at that moment the possibility of "inauthentic" Tex-Mex cuisine arises.

It is perhaps only a slight exaggeration to say that many of the problems of modernity and its relation to tradition are summed up in the sign that promises us "Authentic Tex-Mex Cuisine." Each tradition is the result of previous adulteration and abomination. Each tradition by becoming a tradition nevertheless asserts its own authenticity. The self-conscious search to regain and recapture that authenticity nevertheless produces inauthentic performance. And the very unself-conscious activity involved in adulteration nevertheless produces ever new examples of the authentic, the authentic that is not yet recognized as such.

We can understand an important aspect of modernity through the concept of authenticity, by which we mean the idea of an organic connection to tradition. Modernity might be described as the experience of feeling self-conscious about one's relationship to the past and to tradition, isolated and alienated -- in a word, inauthentic. The paradox of authenticity promises us that the modernist will both invariably fail at regaining this lost authenticity and invariably succeed in epitomizing an authentic experience -- the authentic experience of separation from the past, which is the authentic experience of modernity.(27)

All of which brings us back to the early music movement. A question that fascinates several of the authors in Authenticity and Early Music is why the concept of authenticity has taken center stage, whether as hero or villain, in our own lifetimes. The idea of "authentic" performance practices would have seemed bizarre to earlier ages. A composer of early music, wrote the music historian Donald Grout, would be "astonish[ed] at our interest in such matters. Have we no living tradition of music, that we must be seeking to revive a dead one?"(28) Will Crutchfield notes:


There are several reasons for the previous lack of concern with authentic performance. During the nineteenth century there was still a continuous outpouring of what we now label "classical" music. Thus performers focused more on performing the new music of the 1800s, and less upon preserving a repertory of old classics, as is the case today. One played Mozart and Beethoven as one would play other music. There was no division of classical versus early romantic versus late romantic music. There was simply music, and it was performed according to the best stylistic practices of the day.(30)

These stylistic practices colored the music of the past in terms of the tastes of the present. But this coloration was not noticed, because the cultural subject saw herself as at one with the past, not even conscious of following a tradition of performance.

To modern ears, the difference between Mozart and Mahler, or between Rossini and Puccini, is so great that it is difficult to comprehend this mindset. Perhaps the best analogy is to the popular music of today -- rock and roll. When Bruce Springsteen plays a cover of "Twist and Shout" during a 1990's rock and roll concert, he simply plays the music as a rock and roll song. He does not engage in self-conscious inquiry into early 1960's performance practices. Nor does the audience find this at all unseemly. Nevertheless, rock and roll performance has changed greatly since the 1950s and 60s, due in part to developments in electronic instrument and recording technology, the increased importance of the large stadium or arena as a venue for concerts, and even the development of the music video.(31)

Interestingly, no one yet thinks it very important to duplicate the earlier sound exactly. That is because, to paraphrase the song, it's still rock and roll to us. One can easily predict, however, that future Michael Feinsteins will make it their mission to present purportedly pure Buddy Holly or Little Richard songs and to denigrate as illegitimate and contemptible the versions played by performers like Springsteen and others whom we now benightedly identify as great rock-and-rollers in their own right.

There is an important connection between being unself-consciously within a cultural tradition that is still growing and developing, and a similar unself-consciousness about authenticity in performance. It is precisely because we don't think about authenticity very much when it comes to rock music that we can be quite sure that rock and roll is still a living tradition of popular culture, in a way that (for example) ragtime is not. As Will Crutchfield puts it:

The great benefit of this close, narrow correspondence between contemporary composition and performing style -- as we can still observe it in popular music, on historic recordings, in a very few elder statesmen among today's artists, and in specialists centering their work in the music of today -- is that the performer can be so confident in the basic grammar and syntax of his stylistic language that true improvisation, true spontaneity of utterance, becomes possible within it. If the thriving triangular relationship between composers, performers, and the public had not broken down, historically informed performance would be neither likely nor desirable today.(32)

This triangular relationship between new music, audience, and performer began to deteriorate for what is now called "classical" music around the turn of the century. Although contemporary "classical" music continues to be written and performed, it has lost much of its audience, partly because of its deliberate embrace of atonality and partly because of its avant-gardist tendencies. A new generation of performers has sprung up who see their basic task not as the performance of contemporary music but the preservation of a classical repertory which extends roughly from the Baroque period to the beginning of the twentieth century. The classical performer becomes less and less the advocate of new music and more and more the curator of museum pieces. But the very notion of the museum, which suggests preservation of the past, also suggests separation from it as well.(33)

This distancing and alienation of the performer from the cultural tradition that spawned the music she regularly performs occurs in stages, and it appears differently in different subjects. The process is gradual; the performances of the 1950s seem more distanced than the performances of the 1920s, even if the former in turn seem terribly old-fashioned by today's standards.

The recognition of one's separation from a cultural tradition triggers two characteristic reactions. The first is to cling ever more tenaciously to the tradition as it is perceived to exist. The fear that the center will not hold, and that one must therefore reassert its centrality all the more urgently, creates a feeling of uncertainty and apprehension. This is the experience of modernist anxiety. The unease of modernism, where "all that is solid melts into air,"(34) produces the emotional search for resonance, tranquility, solidity, and stability.

And yet the problem of modernity is precisely the self-consciousness that we have become partly alienated from the past. For the past, once the process of alienation has begun, can never fully be recaptured. The further removed in time one is from tradition, the less one can regain the sense of organic unity with it. Because one cannot recapture the spirit of what has been lost, one attempts to recapture the letter -- that is, the concrete historical manifestations of the tradition. The result in classical music is what Crutchfield calls the "museum model" of authenticity -- "the precise reconstruction of sounds as near as possible to those heard by the composer."(35) This attempt is doomed to failure, if its goal is to recapture authenticity in the sense of organic connection to tradition. The mere imitation of a tradition does not really bring the tradition back to life. A crucial difference separates improvisation within the tradition and careful imitation of previous examples. The improvisor extends and alters the tradition by unself-consciously living within it, while alteration is precisely what the imitator fears most. It is precisely this fear of alteration, Crutchfield argues, that the Early Music Movement must overcome if it is to avoid becoming a sterile and lifeless project:

If we resurrect historical information on performing style simply to settle on 'correct' ways of playing, to promulgate and refine rules, to settle questions . . . if we seek nothing more than to write dozens more programs for the floppy discs we insert in students' brains -- then it would be better if we had never started. If instead we seek an immersion in the disciplines of the past . . . because we aspire to the freedom and the power that can be gained through purposeful accomplishment -- then historically informed performance may enable some of our performers to create anew for themselves the life-giving musical culture that swarmed around musicians in healthier times without their having to think about it. . . . The crucial challenge is to keep that aliveness in mind as the goal; though it can be approached only indirectly, it is more important than the correctness.(36)

The deliberate search for authenticity thus inevitably fails but, paradoxically, also inevitably succeeds. The experience of this search to regain authenticity is itself authentic to our time -- it is the authentic experience of modernity. Thus, as Richard Taruskin suggests, the "authentic" performance movement is really the imposition of the aesthetic of modernism on the music of the past.(37) Despite the claims of its advocates, "authentic" performance of music does not present music as it really was, whatever that mysterious phrase might mean. Rather, "authentic" performance presents music how we really like it (or at least how contemporary musicians like it) -- dressed in modernist garb to suit the tastes of our era, not Bach's or Mozart's.(38)

The advocate of authenticity is quite right that her goal is to make Mozart sound fresh and new to our ears. But this goal has not been achieved by producing what Mozart really sounded like. Rather, it has been achieved by making him sound modern -- with lighter textures, faster tempi, and austere and astringent string tone.(39)

We have adapted Mozart to our age just as the romantics adapted him to theirs, only we have done it under the banner of "authenticity." However, the felt need to make performance "authentic," even when the result is really quite modern, is wholly authentic to the modern era.

The second characteristic reaction produced by modernity is the recognition that the past cannot be regained. It is to embrace, or at least to accept, the alienation of the spirit from its historical moorings. It is to comprehend our relation to the past as artificial and instrumental -- to see the past as separate from us, but nevertheless something we can use for our own purposes. This reaction to modernity leads to the eclectic use of the past, to the juxtaposition of different elements of different traditions, in short, to pastiche. It is the type of modernist response that eventually leads towards what is now called post-modernism. When tradition becomes instrumental, we embrace it with a wink and a nod. Everyone, including the interpreter, knows that the performance is, in some sense, inauthentic, and that the interpreter is playing a role. But this does not raise concern, as long as it serves the purposes (aesthetic or otherwise) of the interpreter. By forsaking modernist anxiety, the interpreter moves closer and closer towards post-modern irony.(40)

The post-modern response to the crisis of modernity in art creates a artistic discourse that closes in upon itself and becomes increasingly self-referential. Postmodernism shares this feature with some earlier forms of artistic modernism. The subject of culture increasingly becomes culture itself. This tendency meshes with the postmodernist practice of pastiche, as previous cultural artifacts are juxtaposed and referred to in order to call up their various cultural associations in the mind. It meshes as well with the postmodernist attitude of irony and detachment -- the previous work of art is referred to not to reassert what it means or conveys, but to comment on it or even undermine it. A good example of post-modern pastiche, irony, and self-reference is the recent film, The Freshman,(41) in which the actor Marlon Brando deliberately parodies his earlier role as the mafia chieftain Don Corleone in The Godfather.(42) The creators of the film make the young hero a film student who attends classes on cinematic history and technique, so that lectures about and scenes from The Godfather can be liberally interspersed throughout the movie. The hero is taken under the wing of Marlon Brando's character, who reminds the student eerily of the Godfather in the film he is studying in class. In turn, Brando does not play a mafia don; rather, he plays Marlon Brando playing a mafia don. Brando's performance is a continual reminder to the audience that he is playing a role, that he knows he is playing a role and that he knows that the audience knows he knows he is playing a role, and so on indefinitely.(43)

Robert Morgan's essay identifies these two reactions to the modernist predicament -- anxiety and detachment -- with the different compositional approaches of Arnold Schoenberg and Igor Stravinsky.(44) Schoenberg, the founder of atonal composition, represents the earlier stage of modernist anxiety. Already fully self-conscious of the tradition of western classical music from Bach and Beethoven to the present day, Schoenberg feels the weight of tradition heavily on his back.(45) He routinely describes his artistic goals in terms of progress -- of moving forward with the project of the western musical tradition. Schoenberg sees himself as one who must carry on the traditions that burden him in the best way he knows how.(46) He thus views atonal composition as an inevitable development of western musical practices:



In contrast, Stravinsky shows much more of the ironic detachment of a later stage of modernism. Although he is not himself a postmodernist, he displays several modernist attitudes that in the hands of later artists will eventually blossom into what we now call the postmodern temperament. He picks and chooses different stylistic features from different eras, melding them in compositions by the force of his personality.(48) Unlike Schoenberg, Stravinsky sees himself as fully separated from the past, studying it not to continue it but to borrow from it piecemeal for his own purposes. The result is a compositional eclecticism characteristic of Stravinsky's style. As Morgan argues, Stravinsky's modernism presaged the compositional attitudes of the present day, in which "[c]omposers adopt and discard musical styles at will, not only from work to work but within single compositions."(49) In their search for musical styles to adopt for their own purposes, contemporary composers are considerably more eclectic even than Stravinsky, for "[t]hey do not limit themselves to the repertory of western concert music, but extend their grasp to music of other cultures, popular music, folk music, jazz, etc., moving freely back and forth across cultural boundaries as well as temporal ones."(50)

Yet this eclecticism of the modern composer itself betrays a fact about the culture of the present -- the felt absence of a cultural center, of a tradition of one's own. There is, Morgan says, "no well-defined sense of the musical present."(51) The loss of a cultural center, he argues, is simply the flip side of the Stravinskian attitude towards history. "Only when the current moment loses an essential character and personality of its own, and thus loses its ability to cast its own peculiar coloration on the past, is one able to look upon the past with such detachment and objectivity."(52) According to Morgan, one who recognizes, even embraces, such a notion of our situation, must also recognize that "the concept of culture, at least as previously understood, becomes extremely shaky."(53) More important, perhaps, is the recognition that "[o]ur sense of the musical present, and thereby of our own musical selves, is fatally threatened, dissolving into a patchwork of disconnected fragments snatched from here, there, and everywhere."(54)

Few have better described the postmodernist sensibility.

It is interesting in this light to compare Stravinsky's compositional practices with his attitudes about musical performance. Stravinsky demanded strict adherence to the musical text.(55) Indeed, he pronounced that "[t]o interpret a piece [of music] is to realize its portrait, and what I demand is the realization of the piece itself and not of its portrait."(56) Elsewhere he invidiously contrasted, against loathsome "interpretation," what he termed objective "execution" -- "the strict putting into effect of an explicit will that contains nothing beyond what it specifically commands."(57) As Taruskin argues, the essence of performance for Stravinsky was "scrupulous fidelity to the letter of the text, and an ascetic avoidance of unspecified nuance in the name of expression."(58) As we should already have come to expect, Stravinsky denounced those whose interpretations differed from his own not only as mistaken, but also, far more significantly, as perpetrators of "criminal assaults" and "betrayals."(59)

In fact, Stravinsky's eclecticism and his demands for "objectivity" in performance are two sides of the same coin. It is precisely because one has become so detached from the past and thus from a living tradition encompassing earlier music that one must make reference to "objective" indicia -- for example, the written text, the actual size of the musical forces at the first performance, and so on.

Indeed, not only are detachment and objectivity two sides of the same modernist coin, but, more surprisingly, so are the desires for authenticity and novelty.(60) Morgan points to the deep connection between the search for novelty in musical culture -- whether it be new techniques of composition or the desire to make Bach and Mozart sound fresh and new to our ears -- and the search for performance practices of the past. Both searches are a means of expressing dissatisfaction with the present.(61)

One can escape the present either by catapulting to the future, or by attempting to recapture the past and make it one's own. The modernist always runs, even if she cannot hide.

If modernity has so thoroughly dominated musical culture in this century, it would be surprising if we did not see similar effects in legal culture as well. Obvious examples abound, the most obvious, ironically, being the insistence on the unique legitimacy of original intention as a guide to constitutional meaning.(62) With modernity comes historicism -- the understanding that the past has become alien to us and the desire to recapture what is slipping away. With detachment comes anxiety, and, as Hobsbawm suggests, the desperate attempt to deny the meaningfulness of history even as one denounces one's contemporaries for having deviated so far from purported models of the past.(63)

Those who disagree are, as Stravinsky asserted, not merely mistaken, but criminal assailants on the uniquely legitimate way of performing constitutional analysis.

Our thesis is that we will find evidence of modernist anxiety and detachment, with a concomitant quest to regain "objective" indicia of performance and the invention of sacralized "traditions," in many different areas of culture, including, most certainly, both the general legal culture and its bastion of self-consciousness, the legal academy. By focusing on Robert Bork's jurisprudence of original intention as a quintessentially modernist response, we suggest an important difference between our perspective and that presented by David Luban in his interesting and important article, Legal Modernism.(64) Luban argues that the Critical Legal Studies movement represents the best analogy of modernist art to law.(65) The work of CLS scholars, in Luban's view, shares with modernist art a penchant for provocation, a feeling of homelessness in the world, and a tendency towards self-consciousness and self-commentary about its own production.(66) Although Luban takes as his model of inquiry modern art rather than musical performance, and although he assigns to the modern what some might now call postmodern, his discussion of the characteristic features of modernity is largely consistent with our own. For example, Luban's emphasis on "homelessness" as a recurring motif in modernist art(67)

describes from another perspective the sense of separation from tradition and from the past we have seen as characteristic of modernity.

There is much insight in Professor Luban's article. Nevertheless, we disagree with its thesis that legal modernism manifests itself most clearly in the work of CLS scholars or others on the left side of the political spectrum. It is worth noting that, as a historical matter, many leading cultural modernists were scarcely left-wing. As Daniel Bell has written, "[i]n discussing modernism, the categories of 'left' and 'right' make little sense. . . . Nietzsche, Yeats, Pound, and Wyndham Lewis were politically to the right."(68) Although Picasso's radical political sympathies were well known,(69) so were Ezra Pound's proclivities towards fascism.(70) Lionel Trilling has noted the irony of contemporary liberal intellectuals' embrace of modernists as heroes, noting that Proust, James Joyce and Andre Gide were "indifferent to, or even hostile to, the tradition of democratic liberalism as we know it," and "do not seem to confirm us in the social and political ideals which we [liberals] hold."(71)

Yet modern culture -- and the response to modernity -- comprises far more that those who are selectively identified as "modernists." A culture embraces all who live within it. Jerry Falwell is just as much a part of the contemporary American culture produced by the experience of modernity as is Cher, even though each is almost totally uncomprehending of the other (and even though each is in some way a reaction to the other). Modernity is an experience felt by all persons in a culture, even if in different degrees, and even if the reactions to it may be different in different quarters. Two billiard balls may move in opposite directions because of the same cause, a third billiard ball which has struck each object differently. Thus, to adopt Robert Morgan's example, Schoenberg's self-conscious attempt to follow tradition is just as modernist in its own way as Stravinsky's embrace of eclecticism. And Stravinsky's detachment led to both his instrumental use of the past for novelty's sake and his moralistic pursuit of the past via "objective" indicia of performance. In legal terms, modernity has brought us both Critical Legal Studies and Robert Bork.(72)

Luban's account of legal modernism, we think, overemphasizes the avant-gardist response to modernity at the expense of those trying to come to terms with tradition and the past either through an anxiously self-conscious adherence to tradition (Schoenberg) or through objectifying the past in concrete terms (Stravinsky). And here the modernist tendencies of the early music movement can provide a useful corrective. The fear that the past is slipping away and the redoubled search to regain tradition is not a retreat from modernism -- it is one manifestation of the modernist experience, one version of modernist anxiety. The difference between the modernist and the premodernist is precisely that the modernist feels that there is something that has been lost. The conserving (but not necessarily conservative) response to modernism that is represented by Schoenberg is precisely the desire to cling to a receding tradition in order to relieve this sense of anxiety. While the modernist complains of anxiety, the premodernist asks "what anxiety?"(73)

For this reason, an inquiry into legal modernity must consider both the Schoenbergian as well as the Stravinskian attitudes towards tradition and the past.(74) It follows that we are likely to see the effects of legal modernity not only in the structural equivalent of the avant-garde in law, but in more mainstream reactions as well. If there are undoubted modernist themes in the work of CLS scholars, they are no less present in the work of the political right or the political center. Throughout the political spectrum one will find analogies both to Stravinsky's dual detachment and objectivity and Schoenbergian anxiety. No single view is uniquely "modernist"; all join in trying to make sense of our particular cultural moment, which features an ever-growing sense of disorder and fragmentation.(75)



1. See Hobsbawm, Introduction: Inventing Traditions, in THE INVENTION OF TRADITION 1-14 (E. Hobsbawm & T. Ranger eds. 1983).

2. Id. at 2.

3. Id.


4. Id.

5. Id.

6. Id. at 7.

7. Rosen, supra note 75, at 50.

8. Hobsbawn, supra note 124, at 8.

9. Id.





13. This theme is probably most associated with the Frankfurt School of critical theory. See J. HABERMAS, LEGITIMATION CRISIS (1975); M. HORKHEIMER, ECLIPSE OF REASON (1947); M. HORKHEIMER & T. ADORNO, THE DIALECTIC OF ENLIGHTENMENT (1972).

14. Compare, e.g., T. SEUNG, supra note 134 (describing the creation of a modern "Faustian ethos" which separates the Middle Ages from the Renaissance) with M. BERMAN, ALL THAT IS SOLID MELTS INTO AIR: THE EXPERIENCE OF MODERNITY 16-17 (1982) (suggesting that the first phase of modernity begins in sixteenth century, but emphasizing modernity as a creature of the nineteenth and twentieth centuries).

15. See, e.g., L. SCAFF, FLEEING THE IRON CAGE: CULTURE, POLITICS, AND MODERNITY IN THE THOUGHT OF MAX WEBER 18 (1989) (describing progenitors of modernism as sharing a "consciousness of a dynamic and wrenching destabilization of transmitted cultural traditions"); C. SCHORSKE, FIN-DE-SIECLE VIENNA: POLITICS AND CULTURE xix (1980) (describing the modern sense of demise of tradition in "a whirl of infinite innovation"); M. BERMAN, supra note 137, at 15, 13 (describing the modern period as "a maelstrom of perpetual disintegration and renewal, of struggle and contradiction, of ambiguity and anguish[,]" which generates in people both "a will to change -- to transform both themselves and their world -- and . . . a terror of disorientation and disintegration, of life falling apart").

16. See Luban, Legal Traditionalism, (forthcoming 43 STAN. L. REV. (1991)).

17. See id.

18. As Marshall Berman argues, nineteenth and twentieth century modernism is distinguished by a



M. BERMAN, supra note 137, at 18-19.

19. See, e.g., A. BLOOM, THE CLOSING OF THE AMERICAN MIND 85 (1987) ("Country, religion, family, ideas of civilization, all the sentimental and historical forces that stood between cosmic infinity and the individual, providing some notion of a place within the whole, have been rationalized and have lost their compelling force.").

20. D. DAVIS, THE PROBLEM OF SLAVERY IN THE AGE OF REVOLUTION, 1770-1823, at 15 (1975) (emphasis added).


21. Fussell, Introduction to THE NORTON BOOK OF MODERN WAR 24 (1991).



23. Crutchfield, supra note 19, at 24.

24. Id.

25. Id. at 24-25.


26. Of course this statement simply raises the issue of authenticity in the form of another question: Who, after all, counts as a "Texan?" For example, both Levinson and Balkin live in Texas but hail originally from North Carolina and Missouri, respectively.


27. Because people usually desire what they feel they most lack, often the more self-conscious a person is, the more avidly she will seek authentic experience. Thus, it was no accident that the Romantic era was both an era of extreme self-consciousness and an age which stressed the importance of authenticity. See M. BERMAN, THE POLITICS OF AUTHENTICITY: RADICAL INDIVIDUALISM AND THE EMERGENCE OF MODERN SOCIETY 312-15 (1970) (emphasizing the importance of Montesquieu and Rousseau to the development of the romantic concern for authenticity, and showing the roots of the modern concern for authenticity in romantic self-consciousness).

28. Taruskin, supra note 45, at 141 (quoting Grout, On Historical Authenticity in the Performance of Old Music, in ESSAYS ON MUSIC IN HONOR OF ARCHIBALD THOMPSON DAVISON 346 (1957)).

29. Crutchfield, supra note 19, at 22-23.


30. In understanding this point, it is important to distinguish compositional from performance styles. The music of Liszt and Wagner, for example, shocked their nineteenth century contemporaries because of its harmonic audacity, and was often seen as a betrayal of sound compositional principles and traditions. But these qualms about new harmonic practices did not lead nineteenth century critics to think that earlier music should be performed differently than contemporary music. We emphasize, however, that the gradual breakdown of the tonal system of harmony by the beginning of the twentieth century, and the development of a musical avant-garde divorced from popular tastes, did eventually contribute to the modern experience of separation between performers and composers of "classical" music, as discussed infra text accompanying notes 155-57. We simply note here that these effects had not yet fully been felt in the nineteenth century.


31. Watch, e.g., MTV.


32. Crutchfield, supra note 19, at 23.


33. For an illuminating discussion of the problem, see Donath, The Gene Autry Western Heritage Museum: The Problem of an Authentic Western Mystique, 43 AM. Q. 82 (Mar. 1991) (criticizing the Autry museum for displacing historical meaning in favor of an unreflective worship of the western mystique).


34. M. BERMAN, supra note 137, at 15. The original phrase, of course, comes from Marx. See K. MARK & F. ENGELS, Manifesto of the Communist Party, in THE MARX-ENGELS READER 338 (1972).

35. Crutchfield, supra note 19, at 25.

36. Id. at 25-26.


37. See Taruskin, supra note 45, at 152, 155, 167-69.

38. See id. at 197-98, 203-04.


39. See id. at 187-88, 190-91 (tracing stylistic changes in performances of Bach's Fifth Brandenburg Concerto).


40. Because of the similarities between postmodernism and modernism, there is considerable debate among philosophers and historians of culture over whether postmodernism is truly a different and separate stage of culture, or is instead merely a later stage of modernism. See D. HARVEY, supra note 133, at 113-18. This should hardly be surprising, as both concepts are heavily contested in theoretical discussion. In this essay, we view postmodernism as furthering some but not other features present in modernism -- for example, modernist irony as opposed to modernist anxiety.


41. The Freshman (Tristar Pictures 1990).

42. The Godfather (Paramount Studios 1972).

43. It is worth mentioning in this context the movie's remarkable final scene, which involves Bert Parks serenading a group of very rich gourmets who have gathered to feast on the meat of freshly killed endangered species. As the latest victim-to-be is paraded before them, Parks proudly sings "[t]here she goes, your komodo dragon." A few moments later, he is offering a spirited rendition of Bob Dylan's "I Ain't Gonna Work on Maggie's Farm No More." Parks' presence in the movie is left completely unexplained. What is the meaning of juxtaposing Parks -- a longtime symbol of the Miss America Pageant (itself a symbol of American values of an earlier era) -- with the selfish excesses and insatiable appetites of 1980's materialism represented by the slaying of the hapless reptile? Is the reference to the soon-to-be devoured dragon a sly accusation that the Miss America Pageant is nothing more than a ritualized "meat market"? What is meant by the juxtaposition of Parks with the music of Bob Dylan, a symbol of the rebellious 1960s, which began to put the values characterized by the Miss America Pageant into question? Is Parks' refusal "to work on Maggie's farm" a reference to his firing by ungrateful pageant directors who (it is rumored) felt that because he had so visibly aged, he no longer presented the right image? Is Parks, like Brando, a knowing participant in the ironies of the movie, or is he, as his performance suggests, blissfully unaware of the subtexts and subsubtexts of his performance? Finally, are the creators of the movie really making a statement through this pastiche of cultural icons, or are they simply having fun and perhaps even laughing at us for noticing the inexhaustible possibilities of cross reference? The mind boggles -- and of course, that is precisely the way the postmodern artist would have it. To take the movie seriously is not to take what it says seriously. To be engaged with it is simultaneously to become detached from the cultural symbols that it invokes.


44. See Morgan, supra note 95, at 60.

45. See id. at 60-61.

46. See id. at 61-62.

47. Id. at 60-61 (footnotes omitted).


48. See id. at 65-66.

49. Id. at 66.

50. Id.


51. Id.

52. Id. at 67.

53. Id.

54. Id.


55. See Taruskin, supra note 45, at 181.

56. I. STRAVINSKY, PROGRAM, STRAVINSKY FESTIVAL, LONDON SYMPHONY ORCHESTRA 41 (1979), quoted in Levinson, On Interpretation: The Adultery Clause of the Ten Commandments, 58 S. CAL. L. REV. 719, 724 (1985).

57. I. STRAVINSKY, THE POETICS OF MUSIC 163 (A. Knodel and I. Dahl trans. 1956). Of course Stravinsky's demand for objectivity does not avoid interpretive difficulties, even of his own works. In the 1920's, desperate for money, Stravinsky arranged his orchestral compositions for player piano. On these pianola rolls, the dance at the end of his famous ballet Rite of Spring "is much faster than on any recordings, including his own 'final' versions of 1960 and 1961." A Dance to the Death, THE ECONOMIST, Apr. 6, 1991, at 89. Ben Zander, the conductor of the semi-amateur Boston Philharmonic, has studied the piano rolls and concluded that they reflect Stravinsky's original intentions, but that Stravinsky compromised later because the first orchestras that tackled the piece simply could not perform his complex music at the speed he desired. Id. Is a conductor who performs the Rite at the faster speed engaging in objective "execution" or loathsome "interpretation"? Did Stravinsky, who performed and recorded the Rite of Spring in more than one way, engage in fraudulent "interpretations" of his own music?

58. Taruskin, supra note 45, at 181.

59. Id.


60. See Morgan, supra note 95, at 75.

61. Id. at 75-76.


62. See R. BORK, supra note 33, at 6-8. We are grateful to Robert Post for pointing out that Thomas Hobbes (whose pessimism, skepticism about values, and statism have much in common with Judge Bork's philosophy) also developed a highly originalist theory of interpretation. See D. HERZOG, HAPPY SLAVES: A CRITIQUE OF CONSENT THEORY 145 (1989). Thus the turn to "originalism" is not unique to our current (twentieth century) brand of modernism; it also shows how twentieth century modernism has many antecedents. Moreover, Post's example is an excellent demonstration of how heavily contextual judgments of modernism are. Hobbes is certainly not "modern" in contrast to twentieth century thinkers, but in another sense he is a veritable architect of modernism in his demolition of Aristotelian traditionalism. Cf. Balkin, Nested Oppositions (Book Review), 99 YALE L.J. 1669, 1678-82 (1990) (depending on context, cultural concepts are always both exemplified by and in opposition to their concrete historical manifestations).

63. See supra text accompanying notes 125-32.


64. See Luban, Legal Modernism, 84 MICH. L. REV. 1656 (1986).

65. See id. at 1656-59.

66. See id. at 1657-59.

67. See id. at 1660.




70. On Pound, see J. DIGGINS, MUSSOLINI AND FASCISM: THE VIEW FROM AMERICA 246-47, 437-39 (1972). Even Wallace Stevens, the newly found darling of contemporary legal pragmatists, was not immune from the allure of facism. See id. at 245 (describing Stevens' support of Mussolini and his belief that fascism would merely be "'a transitional phase' of a state which hopefully would, like [Stevens'] poetry, wrest order from chaos and thereby lessen the 'disillusionment' and 'misery' in the modern world" (quoting W. STEVENS, LETTERS OF WALLACE STEVENS 289-90, 295 (H. Stevens ed. 1966))).



72. See Schlag, Missing Pieces: A Cognitive Approach to Law, 67 TEX. L. REV. 1195, 1216, 1228 (1989).


73. And, we should add, the postmodernist also asks, "what anxiety?"


74. This is not, of course, to say that Schoenberg and Stravinsky represent the only two possibilities. We agree with Morgan, however, that these two examples throw considerable light on the experience of modernity in music, as well as in culture generally.

75. For a discussion emphasizing the presence of fragmentation in American law and jurisprudence, see R. POSNER, supra note 1, at 203, 296. For a postmodern explanation of legal fragmentation and a delightful romp through the categories of modernism and postmodernism, see Schlag, supra note 195. While Schlag emphasizes the epistemological aspects of modernity and postmodernity, we emphasize their broader cultural manifestations.



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