Law as Performance

Copyright 1998 Jack M. Balkin and Sanford Levinson. All Rights Reserved.

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Law as Performance


J.M. Balkin and Sanford Levinson(1)


I. Introduction

The analogy between law and the literary text has been central to the law-as-literature movement since its inception. Both of us have contributed to the development of this analogy,(2) and both of us have learned much from it. Yet every analogy has its limitations, and we think it is time to move on. We believe that the comparison between law and the literary text interpreted by an individual reader is inadequate in important respects. A much better analogy, we think, is to the performing arts-- music and drama-- and to the collectivities and institutions that are charged with the responsibilities and duties of public performance. In other words, we think it is time to replace the study of law as literature with the more general study of law as a performing art.

Law, like music or drama, is best understood as performance--the acting out of texts rather than the texts themselves. The American Legal Realists distinguished "law on the books" from "law in action." Our claim takes this distinction one step further: "Laws on the books"-- that is, legal texts-- by themselves do not constitute the social practice of law, just as music on a page does not constitute the social practice of music. Law and music require transforming the ink on the page into the the enacted behavior of others. In an important sense, there is only "law (or music, or drama) in action," in contrast to poetry or fiction, whose texts do not require performance but can be read silently to one's self. Like music and drama, law takes place before a public audience to whom the interpreter owes special responsibilities. Legal, musical, and dramatic interpreters must persuade others that the conception of the work put before them is, in some sense, authoritative. And whether or not their performances do persuade, they have effects on the audience.

For this reason, the best examples of legal performers are not law professors, but persons at the cusp of decision, who must determine-- often under highly imperfect circumstances-- how a text should be given concrete meaning in the social context before them. That context must include the political and institutional constraints of the moment as well as the capacities of the other performers in the legal system. Most judges, like most directors, are not blessed with all-star cast of Callases and Oliviers guaranteed to give thoughtful and inspired performances, or with subtle and sophisticated audiences, eager to receive the latest and most daring interpretations. Like actors and directors, judges must take into account the interpretive abilities and predelictions of others. Judicial performances depend on further performances by lower court judges and executive officials; the efficacy of their work often depends on acceptance by others: not only by other government officials, but by the people as a whole. The wise judge, like the wise director, understands the limitations and the interests of her co-performers and her audience, and tailors her interpretations accordingly.

II. How to Perform (or not Perform) an Offensive Text

One of the best ways to understand the responsibilities of performance is through the problem of offensive texts. In important ways, the decision about whether and how to perform an offensive text raises difficulties similar to interpreting and enforcing an unjust law. We begin our discussion with a hymn by Sydney Carter entitled "Lord of the Dance." The words are set to the lovely Shaker tune "Simple Gifts,"(3) best known to many through its appearance in Aaron Copland's ballet Appalachian Spring. The lyrics are as follows:(4)


1. I danced in the morning when the world was begun,

And I danced in the moon and the stars and the sun,

And I came down from heaven and I danced on the earth;

At Bethlehem I had my birth.


Dance then wherever you may be;

I am the Lord of the Dance, said he,

And I'll lead you all, wherever you may be,

and I'll lead you all in the dance said he.


2. I danced for the scribe and the pharisee,

But they would not dance and they wouldn't follow me;

I danced for the fisherman, for James and John;

They came with me and the dance went on:


3. I danced on the Sabbath and I cured the lame:

The holy people said it was a shame.

They whipped and they stripped and they hung me high,

And they left me there on a cross to die:


4. They cut me down and I leap up high;

I am the life that'll never, never die;

I live in you if you'll live in me:

I am the Lord of the Dance, said he.

Although the music is lovely, the verses get progressively troublesome. Simply put, verse three of the song is anti-Semitic, and the descriptions it offers have a long and unfortunate history. Recurrent portryals of "the holy people . . . whipp[ing] and . . . stripp[ing] and . . . h[anging Jesus] high," go back as far as the Gospels, especially the Gospel of St. John. As the Catholic Church has recently acknowledged, these religiously sanctioned depictions of Jews and Judaism were major contributing factors to the pervasive anti-Semitism that resulted in a history of discrimination, pogroms, and eventually the Holocaust. Similar problems haunt many other musical works, the most famous of which is probably Bach's St. John Passion, which includes many troublesome passages taken from the Gospel most overtly hostile to Judaism.(5)

What is most important for our purposes, however, is that "Lord of the Dance" is not simply a text that one reads to one's self, but a song to be performed in front of an audience. "Performance" encompasses many different kinds of activities. A song can be performed before a secular audience, or as part of a religious service. It can be performed live or recorded for future performance. These recordings, in turn, can be played on a home stereo system or they can be broadcast to large numbers of people. In fact Levinson first became aware of "Lord of the Dance" while listening to his favorite Austin radio station, a "public radio" station operated by the University of Texas that plays an important role in shaping local culture. People who decide to sing the song before a live audience, perform it in a religious ceremony, record it for mass consumption, or broadcast it to the public, are in a somewhat different position than people who simply read the text silently to themselves. Because performers are associated with what they perform, questions naturally arise about not only how to perform a particular work, but whether to perform it at all.

Moreover, performances usually exist within traditions and institutions of performance. "Lord of the Dance" is not just a song, it is also a religious hymn. In 1996 the General Conference Hymnal Oversight Committee of the Society of Friends decided to include the "Lord of the Dance" in its newly revised hymnal. The decision did not go unnoticed; it caused a remarkable debate in the pages of The Friends Journal. One anguished Quaker wrote a letter decrying the song as "anti-Semitic" and concluding that "[i]t is a sacrilege that 'The Lord of the Dance' has been included in Songs of the Spirit and other Quaker song books. It will be a continuing disgrace and a sin for the Religious Society of Friends to continue to disseminate this song."(6) Whatever might be said about reading anti-Semitic lyrics silently to one's self, the protester recognized that the Society of Friends took on additional responsibilities when they authorized public performances as part of their canon of officially approved materials.

The Hymnal Oversight Committee understood that the song might be controversial. They had contacted the author, Sydney Carter, and "engaged in discussions with [him] about his song," but Mr. Carter refused to alter the words. Even so, the Committee might have authorized a redacted version for the hymnal despite Mr. Carter's objections. For example, they could have replaced the words "the holy people" with "the faithless people" or even "the unbelievers." Apparently, however, they felt that this was unwise, either out of respect for the author's creative authority, fear of copyright infringement, or because they felt they lacked the institutional authority to require redaction. Instead, the Committee chose another strategy. They denied that the lyrics, properly understood, were anti-Semitic at all. The Committee added a footnote in the hymnal stating that the expression '"They" refers to the authorities responsible for the crucifixion, mainly the Romans.'" In addition, "[a] historical note further clarifies 'the ambiguous "they"' and notes the different parties involved: the Pharisees, the Romans, the Sanhedrin, and the Saducees."(7)

Not everyone in the Quaker community was persuaded, judging by other letters sent to the Friends Journal. David Rush wrote the editors that "[n]o one in the world would mistake the Romans for the 'holy people.'"(8) Of course, the Oversight Committee might have meant that the word "They" appearing after the words "The holy people" did not refer to "the holy people" but to a different group of persons. If so, it is not a very persuasive reading; it's hard to see who else the "they" could refer to. Another letter from Paul Thompson took a different approach in defense of the lyrics: he argued that "Jesus' first followers were Jewish. So were his opponents. The latter came from the hereditary and professional priesthood, etc." Thus, he argued, "Any attempt by anyone to read more into the phrase 'the Holy People' in Carter's song 'Lord of the Dance' than that is ludicrous, even paranoid. Any attempt to cast the composer as anti-Semitic is unjustifiable."(9) Accusations of paranoia, of course, depend on the plausiblility of the "reasonable" alternative: Most specialists in American constitutional law remember the Supreme Court's famous dismissal of the claim that "enforced separation of the two races stamps the colored race with a badge of inferiority" in the 1896 case of Plessy v. Ferguson. This suggestion was preposterous Justice Brown argued: "If this be so, it is not by reason of anything found in the act, but solely because the [paranoid?] colored race chooses to put that construction upon it."(10)

Whether one sides with the Hymnal Oversight Committee or its critics, both sides shared the view that performance of a text before an audience carries distinctive responsibilities for interpreters. The question was not what was the "best" interpretation of the text in the abstract, but what the text should fairly be read to mean given the institutional context of performance and the social consequences of performing it. The two sides simply disagreed over whether the responsibilities of performance had been met.

Unlike the solitary interpreter-as-reader, the interpreter-as-performer is often faced with the question whether a text should be altered, redacted or not performed at all. Consider Sir Charles Mackerras' 1992 recording of a new version of Gilbert and Sullivan's The Mikado with the Welsh National Opera Orchestra and Chorus.(11) Mackerras' recording was hailed by the critics for sweeping away cobwebs of previous tradition. The authors of The Penguin Guide to Compact Discs awarded it not only three stars for "an outstanding performance and recording in every way," but also a "rosette"--their highest recommendation, signifying a performance of special excellence and quality.(12)

Yet, as the Guide's authors noted, Mackerras's performance was unusual in many ways. Because he wanted to fit the entire work onto a single compact disc, the entire performance had to last less than 80 minutes.(13) As a result, Mackerras omitted a great deal that one would hear at a live performance. In particular, he dispensed with the overture and the whole of the dialogue. The omission of the overture might easily be defended on the ground that the overture was not in fact by Sullivan himself, but was a pastiche of themes from the operetta strung together by another hand.(14) No such defense could be offered of Mackerras's decision to omit all of W.S. Gilbert's witty dialogue. One might defend the latter on grounds of the changed context of performance: many people listening at home might wish to skip the dialogue and go straight to the musical numbers. But tailoring the CD for those listeners merely begs larger questions about recording works originally crafted for the stage: Has Mackerras done justice to a piece intended for performance in front of a live audience? One might object that when it is offered as a series of unconnected musical numbers, The Mikado begins to sound more like a comic oratorio than an operetta.

Finally, and most important for our purposes, Mackerras made two alterations that one strongly suspects were motivated by something other than the desire to save valuable time. The listener will simply not hear the middle verse of Ko-Ko's famous aria "I've got a little list." As Gilbert and Sullivan fans, know, Ko-Ko, the Lord High Executioner, describes his list "[o]f society offenders who might well be underground, and who never would be missed." In W.S Gilbert's original 1885 libretto, the second verse begins by counting as disposable "the nigger serenader, and the others of his race...."(15) Mackerras presumably omitted these words on the grounds that they are offensive (or as the Penguin Guide delicately puts it, "unpalatable") to today's audiences.(16) (Of course this begs the question whether the entire work should be considered offensive to the Japanese. )(17) Nevertheless, given that there are only three verses in the entire song, one has to agree that this is a significant omission: Mackerras has literally chopped a third out of the piece!(18)

Nor is this the only editorial change to the libretto. In the Mikado's famous Act II aria, where his "object all sublime" is to "let the punishment fit the crime," Mackerras alters the following verse:

The lady who dyes a chemical yellow

Or stains her grey hair puce,

Or pinches her figger,

Is blacked like a nigger

With permanent walnut juice.

by substituting for the last three lines:

Or pinches her figger,

Is painted with vigour

And permanent walnut juice.(19)


Mackerras could have cited a tradition of past performance to justify the second alteration, if not the first: Apparently in response to repeated objections from American audiences, the D'Oyly Carte Opera Company, the original performer and artistic custodian of the operettas, asked A. P. Herbert to alter the lyrics for American performances of The Mikado in 1948.(20) Herbert inserted the new lyrics in the Mikado's song and changed "the nigger serenader and the others of his race" in Ko Ko's list song to "the banjo serenader and the others of his race." Apparently Herbert and D'Oyly Carte judged the latter line no longer racist or otherwise offensive, though one certainly doubts if 1998 audiences would be so easily appeased. In any event, it has remained in official D'Oyly Carte libretti and performances ever since.(21) Nevertheless, Mackerras decided that the verse was still offensive and he omitted it.

Given these cuts, it is quite interesting that the authors of the Penguin Guide lavished such praise on Mackerras's performance. Usually they are quite finicky in their demands for textual authenticity and completeness. For example, they praise Mackerras on another occasion for offering the complete original version of Leos Janacek's Glagolitic Mass,(22) and they commend Claudio Abaddo for recording Schubert's original melody in the slow movement of the Great C major symphony, not the familiar version resulting from editorial changes by Johannes Brahms.(23) Even more to the point, the offer a rosette to John McGlinn for "faithfully offering the original score" of Kern and Hammerstein's Showboat, a score whose lyrics can surely raise hackles as much as anything found in The Mikado.(24) Finally, they downgrade many performances for employing cuts, even those of long standing or ones sanctioned by the composer.(25) Indeed, sometimes they criticize performances for failing to observe repeats.(26)

Given their scruples in these cases, what best explains their award of a rosette, their highest honor, to Mackerras's version of The Mikado? Shouldn't the omission of the dialogue, and the offending verses of Ko Ko's and the Mikado's arias make the performance less acceptable on grounds of authenticity? Of course, this raises the question whether "authenticity"-- whether defined in terms of the composer's original intentions, fidelity to the text, or adherence to the conditions of performance when the work was premiered-- is a worthy touchstone for judging performances. Perhaps, on the contrary, Mackerras did precisely what a conscientious conductor/performer should do in recording this work for contemporary audiences. Faced with a text that is undeniably offensive by today's standards, the conductor excises or redacts it to produce a rewarding aesthetic experience. In one sense altering the work may be more faithful to its best qualities; and it also increases the chance that a work like The Mikado will maintain its place within the canon of performed works and therefore carry the fame of Gilbert and Sullivan forward to future generations.

Indeed, Rupert D'Oyly Carte justified hiring A.P. Herbert to revise Gilbert's lyrics on the ground that "Gilbert would surely have approved" of Herbert's changes."(27) Although this sounds like an appeal to original intention, D'Oyly Carte offered no evidence or argument to support his assertion. Perhaps D'Oyly Carte was practicing an altogether justifiable principle of charity in interpretation: He assumed that Gilbert was a man of his times; the original lyrics manifested mere parochialism rather than conscious malevolence. Surely, it might be argued, a decent person would change a lyric when its offensiveness was brought to his attention, and if the person in question is dead, one ought to act on this assumption in the interests of charity. Indeed, if Gilbert were alive today, he would probably never have written such racist lyrics in the first place. In this sense, D'Oyly Carte was more fortunate than the Hymnal Oversight Committee of the Society of Friends, who were able to ask Sydney Carter if he would mind changing his lyrics to "Lord of the Dance" and were met with a firm refusal.

III. Performing Legal Texts

Many of these issues should sound altogether familiar to lawyers who have sparred over the proper interpretation of legal texts, who have fought over the authority of original intention or who have debated the possibility, or desirability, of separating legal from moral reasoning. We argued several years ago that lawyers could learn a great deal from looking at performing arts like music and drama.(28) Part of our argument, which may have been more implicit than explicit, is that having mined much of what there is to learn from the analogy of "law-as-literature" more illumination lies in thinking about "law-as-a-performance-art."

Every analogy is imperfect (including the one we propose in this essay). Each illuminates certain aspects of the thing to be explained while making others less salient. Nevertheless, we think that the analogy to the performing arts is much superior to the analogy to poetry or novels. The analogy of law to literature tends to hide three important features of legal practice.

First, legal practice features a triangular relationship between the institutions that create law, the institutions that interpret law, and the persons affected by the interpretation. Although the law maker and the law interpreter can be one--as in the case of common law judges--the two categories are analytically distinct. Indeed, in the contemporary administrative and regulatory state, judges spend much of their time interpreting the statutes and regulations made by others. In the performing arts, there is also a triangular relationship between the creator of the text, the performer, and the audience. Reading a poem or novel to one's self tends to disguise this triangular relationship, because the role of interpreter and audience are merged into one. For this reason, many of us think of reading literature as a "private" experience, in which we curl up in our study with the book or poem in question and try to enter into the imaginative world created by the author. Music, and drama, by contrast, seem more overtly "public."

To be sure, the distinction between "public" and "private" can easily be problematized and even deconstructed. The seemingly isolated reader of the poem lives within a complex social world of language, shared values, common expectations, publishing distribution networks, and the like. Moreover, literary figures sometimes read their poetry, short stories, and novels aloud in front of audiences, and so become performance artists. Conversely, music can be played in the privacy of one's own home, just as a group of friends can read a play alound for their own amusement. Even so, the triangular relationship between the text, performer and audience is more salient in music and drama than in the interpretation of poetry. And it is this salience that we are most interested in exploring and pursuing.

Second, law is a social practice that consists of not only texts but the enforcement and implementation of these texts in practice. Indeed, some of the legal realists argued that legal texts were not law but only sources of law. In this respect music and drama provide a particuarly apt analogy. Though both involve texts, whether scores or scripts, these texts need to be brought to life through action. A Beethoven symphony is more than a set of marks on a page; its score is merely a set of directions for performance. Moreover, in order to be realized, music and drama usually require the coordinated efforts of many different individuals. Often performance occurs under the explicit leadership of a conductor or director, who tries to instantiate an interpretation of the work in the actions of the orchestra or cast of the play.

Third, legal interpreration-- which includes adjudication, enforcement, and offering legal advice -- is a social activity that shapes, directs, and normalizes the thought and behavior of others. Legal interpretation affects its "audience": it does things with them and to them. Hence performance always brings with it special responsibilities to the audience.(29)

The analogy of law to literature tends to underemphasize the responsibility that the legal actor or interpreter bears to the audience affected by what he or she does. We do not claim that these performative aspects are wholly absent when people read poems or novels to themselves, only that these aspects are less salient. Surely a person who reads a poem to herself is affected thereby, and people may well have ethical responsibilities to themselves when they read and interpret literature. (Consider the debate about whether one should even read ponographic literature, let alone sell it or distribute it.) Yet here again, the model of literature and poetry seems to merge the roles of interpreter and audience into one, whereas the great advantage of the analogy to the performing arts is that these roles are more clearly separated.(30) This separation is important precisely because the performer's interpretations can have affects on others for which the performer can be held morally if not legally responsible(31)

Our point is well illustrated by a conversation one of us had with a very prominent, theoretically sophisticated, American constitutional scholar about the political problems of performing The Mikado and the choices that Mackerras made in his 1992 recording. The constitutional scholar rejected the idea of redaction as a solution; indeed, he would insist on purchasing a CD that contained the original version of the operetta to listen to in his own home. When asked if he would be willing to perform The Mikado in its original version, he quickly responded "Of course not." He explained that he would feel "responsible" for the use of the racist lyrics in a public performance, whereas no such responsibility attached to listening to them in the privacy of his own study. Nothing better confirms the intuitive, albeit undertheorized, distinction between "private" consumption through reading or listening, and participating in public performance, with its attendant responsibilities to an audience. Indeed, we wonder if this scholar, well-known as a man of the left and a critic of the public-private distinction, would even feel comfortable being observed walking into a concert hall advertising an "authentic" production of The Mikado (especially if the entrance involved crossing the almost inevitable picket line to do so). The public performer (and even the public listener) face a situation quite different than the phenomenologically isolated consumer of cultural objects. Tending one's own garden is different from putting one's flowers into the stream of (cultural) commerce.

We should not ignore important differences between legal, musical and dramatic performances. Conductors do more than produce different interpretations of a score. Often they refuse to follow clear textual commands, for example, directions in the score to repeat a certain section or to play at a certain metronome marking. Stage directors are even more liberal in their revisions. For example, almost no one-- including the Royal Shakespeare Company-- performs the entire text of King Lear. Apparently excising verses from one of the greatest plays in the English language is not per se illegitimate.

Lawyers and judges, on the other hand, normally are estopped from forthrightly stating that they will choose to regard a given patch of legal text as no longer authoritative, unless, of course, it has been held unconstitutional or, if part of the Constitution itself, has been repealed by later amendment. Instead, legal interpreters usually evade the force of a particular text by reading it narrowly or in novel ways. But in a deeper sense the similarity remains, for both redaction and interpretation are ways to "perform" a work of art or a body of law. A conductor like Mackerras performs The Mikado by leaving out Ko Ko's second verse and all of Gilbert's dialogue; a jurist like Justice Miller in The Slaughterhouse Cases(32) "performs" the United States Constitution by reading the Privileges and Immunities Clause of the Fourteenth Amendment so narrowly that it has no legal importance and can safely be ignored in future litigation and legal discussions.(33) This is not editing or redaction in a technical sense, but it is in a practical sense. It is likely that significant parts of the Constitution have, as a practical matter, been read out of existence by subsequent judicial interpretations. In addition to the Privileges and Immunities Clause, the most obvious examples would be the Second Amendment and the Republican Form of Government Clause. Almost no practicing lawyer or court-oriented academic seems to think it necessary to worry about these textual patches, given their practical irrelevance as part of court-oriented legal argument. Though the language itself obviously remains as part of the text of Constitution, it is almost never used in ordinary legal argument or taught to aspiring law students as doctrinally significant.(34)

It is tempting but incorrect to argue that the difference between legal interpretation and musical or dramatic redaction lies in the fact that the language of the Privileges and Immunities Clause remains in the Constitution, while Ko Ko's second verse has actually been removed from The Mikado. This argument confuses musical texts with performances of music; it also confuses legal texts (and sources of law) with performances of law. Mackerras' performance does not change the text of The Mikado. That text remains as it was before his performance. His performance is simply one that omits parts of that text, although if he is successful and influential, a tradition of performance may arise that routinely adopts similar cuts. Likewise, an interpretation of the Privileges and Immunities Clause that reads it out of practical existence does not alter the text of the Constitution as a source of law; it merely produces an interpretation that has the force of law and itself becomes a source of law. The textual provisions of the Privileges and Immunities Clause lay dormant to be discovered and made use of by future judges willing to overrule Slaughterhouse.(35) In the same way the original text of Gilbert's libretto lies available for use by a future conductor mounting a future production.

With these considerations in mind, imagine the situation of a musical artist faced with the decision whether (and how) to perform The Mikado or "Lord of the Dance." Should the intention of the composer be dispositive? Recall that the author of "Lord of the Dance," Sydney Carter, was consulted about the possibility of changing his text and that he refused to allow any changes. Even so, why should this matter? Once the text leaves his hands, should he retain a veto over subsequent interpretations?

Lawyers might respond that copyright stands in the way of revising Carter's song. But this is too clever a response. Long-dead composers or authors (or their estates) may have no legal rights at all. It does not follow that performers have no moral obligations to perform their works faithfully. Surely the absence of copyright restrictions does not mean that perfomers of Beethoven and Shakespeare bear no aesthetic responsibilities towards authorial intention, while performers of Sydney Carter do. To clarify the issue, then, let us assume away the particular impediment of copyright law. Could a performer who believes that "Lord of the Dance," when excised of the offensive language, is worth preserving and singing as a way of praising the glory of God, simply go ahead and omit the verses in question or, indeed, rewrite them to contain more suitable sentiments? Or would this mean that whatever is being preserved is not "Lord of the Dance," but, rather, a faux-version?

The questions raised by "Lord of the Dance" and by Mackerras's interpretation of The Mikado are strikingly similar to questions that lawyers might ask about legal interpretation. Does faithful performance of a legal text require that we hew strictly to the intentions of its framers and the plain meaning of the text? Does faithful performance require that we treat all of the authors' intentions and all parts of the text as equally binding on us? Or does legal interpretation permit or even demand some degree of flexibility and selectivity in textual exegesis in the interests of justice?

IV. Authenticity and Traditions of Performance

Before answering these questions, we offer one other example of a piece written for the glory of God, a motet by Antoine Busnoy, recently recorded by the early music group Pomerium. Busnoy, the "'first singer' at the Court of Charles the Bold, the Duke of Burgundy,"(36) died in 1492, leaving as his legacy some extraordinarily beautiful music. One of the most striking compositions on the CD is the motet Victimae paschali, described by Alexander Blachly, the director of Pomerium, as "the most adventurous of all his creations."(37) Victimae paschali is a setting of traditional Catholic liturgy. It begins, "Let Christians offer praises to the paschal victim." The key verses ask Mary Magdalene to tell what she saw, to which she answers "The tomb of the living Christ, the glory of the Resurrected One.... Christ our hope has risen and will precede his followers to Galilee." At this point the liturgy set by Busnoy reads: Credendum est magis soli Marie veraci/ quam Judeorum turbe fallaci, helpfully translated in the album notes as "More trust is to be put in honest Mary alone than in the lying crowd of Jews."(38) Interestingly enough, Blachly notes that "[t]his verse has long been abolished from the Catholic liturgy, but," he insists, "to excise it here would render the piece unperformable. Despite misgivings, we have left the text intact."(39)

Blachly took a path quite different from Sir Charles Mackerras or, for that matter, Rupert D'Oyly Carte. Where they thought it important to redact W.S. Gilbert's text for contemporary audiences, Blachly believed it incumbent upon him to present the motet in all of its offensiveness, regardless of the Church's subsequent recognition of its pernicious aspects.

Blachly's defense seems to suggest that one simply could not perform the piece without the offending lines. Perhaps this might be true if one excised them while offering nothing in their place. But does Blachly present us with the only viable alternative? Reviewing the disc, the musicologist Richard Taruskin, himself an active performer of medieval music (and the editor of some key works of Busnoy), strongly disagreed. One need scarcely eliminate the entire line; it would be sufficient, Taruskin notes, simply to substitute the word "'peccatorum,'of sinners', for Judeorum."(40) So revised, the motet would proclaim that Mary is more trustworthy than the lying crowd of sinners. The number of syllables in the two Latin words is the same, and there is no reason to doubt Taruskin's assurance that the revised version would be eminently "performable." (This is, of course, precisely what A.P. Herbert did for Gilbert's lyrics.) Perhaps Blachly simply didn't think of this possibility, but no future performer, having read Taruskin (or, for that matter, this essay) can take refuge in that excuse. Hence if future singers insist on adherence to the original text, it must be for reasons other than technical performance considerations.

Pomerium is part of the authentic performance movement, and so it is possible that Blachly's decision rests on a particular vision of what "authentic" performance requires. Perhaps Blachly believed that fidelity to the musical score requires singing about "the lying crowd of Jews." A performer has no authority to change the text of a score or a libretto and, indeed, the conductor or director is under a injunction to repeat exactly, or in more legal terms, to "enforce," what has been written on the page. Perhaps Blachly believed he was also honoring original intention by presuming that composers would desire that their lyrics would be performed exactly as written indefinitely into the future. Neverthless, this may hardly constitute charity in interpretation, and it may wrench the music from its original context of performance. Busnoy's motet was originally religious music, and not, as it has now become, a source of entertainment for devotees of ancient music in a pervasively secular age. The Catholic Church viewed, and continues to view, its liturgy as performative-- as having beneficial effects on its intended audience. If Busnoys was in fact a loyal son of the Church, would he not, at the very least, have acquiesced and even applauded the Church's later decision to reject the liturgical text he originally set? Is not Blachly insulting Busnoys by inferring that he would prefer to be known to 20th century audiences as a thoughtless anti-Semite at variance with the Church's own teachings?

Yet Blachly's hesitation to innovate might stem from yet another source. Performers often feel comfortable in revising works of art for performance because they are part of a tradition of performance that connects them with the work of art and hence authorizes and empowers their interpretations. Thus a pianist in the early 20th century could feel connected to the work of Chopin because he or she was immersed in a tradition of romantic performance that extended back for a century or more, and because he or she was part of a long line of students and teachers organically connected to this tradition. Being within this tradition gives a performer the freedom and the authority to improvise and innovate within it. An excellent example is the tradition of performing Gilbert and Sullivan operettas. This tradition has produced many accretions to the libretto and score, and there is a long practice of altering lyrics to make satirical points about contemporary issues. Within such an organic tradition the argument for rigorous textual fidelity to the original libretto or even to the conditions of original performance becomes much less persuasive. Quite the contrary: no "authentic" Gilbert and Sullivan performance would be complete without a little horsing around on stage.

Indeed, as we have pointed out in previous work, arguments for texual rigidity and hewing to original intention arise only after one no longer feels part of an organic tradition of performance.(41) Within an ongoing tradition, authentic performance is assured by living and working within that tradition. Only when that tradition dies and people feel isolated and separated from the past do they attempt to cling to concrete exemplars of the tradition as guarantees of authenticity. And, ironically, the more people cling to these concrete exemplars rather than to the world that fostered them, the less likely they are to be authentic to that former world. Surely one can play Bach on a baroque trumpet, but this hardly ensures the authenticity of what one plays.(42) We no longer live in Bach's world, a world in which music was written for religious purposes, a world in which all performances were live, offered in religious contexts before an audience of believers, a world in which any particular piece might be performed only a few times in the composer's lifetime. Today's "authentic" performances are usually recorded so that they can be played anywhere at anytime for the amusement of secular audiences. Today we can listen to "authentic" performances of Bach in our underwear, working in our office cubicle, or speeding down the highway at 70 miles per hour. The notion that using a baroque trumpet in a Bach cantata somehow guarantees "authenticity" threatens to make a mockery of that word.

Perhaps then Blachly might argue that he is powerless to change the text of Busnoy's motet precisely because we no longer live in an organic tradition of performance of Renaissance polyphony. But this too, begs an important question. For even if Blachly and Pomerium are not part of Busnoy's traditions, they do seem to be part of a contemporary tradition of "authentic performance." The authentic performance movement hoped to discover old and forgotten music and make well-known music fresh and alive by adopting the instrumental and performance practices of the past. It is this tradition of performance, and not some transhistorical principle of fidelity to text, that seems to counsel that Pomerium preserve the Busnoy's original language. Precisely because Blachly and Pomerium form part of this tradition, they are also free to improvise within it, to make this music fresh and alive through a creative use of authentic practices. For example, because many musical works were performed in alternative versions, authenticists have sometimes combined them to produce the most aesthetically satisfying version for modern audiences.(43) It by no means follows from the principles or commitments of authentic performance or the authentic performance movement that Busnoy's motet must be sung in all of its textual ugliness.(44) As the constitutional scholar in the earlier anecdote suggested, performers are indeed "responsible" for the choices they make. It is not enough to plead that one must perform the texts as written by the author, or even-- as in the case of Sydney Carter-- that the author explicitly rejected the changes in question.(45)

V.Conclusion: Performance and Canonicity

The problems of performance we have described in this essay all rely on the assumption that there are good reasons to perform the text in the first place. If a song or play is mediocre artistically, we are much less likely to want to perform it. Conversely, the question of how to perform The Mikado, the St. John Passion, or The Merchant of Venice is likely to stem from the performer's belief that, on the whole, the work is artistically meritorious. Thus the problems of performance are deeply connected to the canonical status of the work to be performed. If Shakespeare were merely a minor figure of mediocre talent, directors would not be so obsessed about navigating the shoals of The Merchant of Venice. Similarly, one doubts that the Oxford University Press would publish a book about, or the the New York Times devote a full column to, the possible anti-Semitism of some long forgotten hack composer.(46) If the composer is Bach, however, everyone recognizes that something important is at stake. It surely occasions no surprise to learn that Michael Marissen's recent book on the St. John Passion argues that a suitably deep analysis of Bach's musical structures reveals to be a critic of anti-Semitism--at least given the confines of his own culture-- rather than one of its most talented manifestations.(47) If people regard a particular song or play as part of the artistic canon, or, what often amounts to the same thing, an indelible part of our cultural heritage, the obligation to perform it becomes strong. In that case people are much more likely to make excuses for the work's political shortcomings. On the other hand, the canonicity of a work may also lead, as in the case of The Mikado, to continuous attempts at ameliorating it through a tradition of performances and glosses on previous performances.(48) If we have little choice in jettisoning canonical works, we will tend either to accept them too generously, attempt to interpret them in their best possible light, or else to edit or rearrange them closer to our heart's desire. Yet our ability to revise the work depends on existing traditions and institutions of performance. As we have seen, it is much easier to revise Gilbert and Sullivan lyrics within the traditions of the D'Oyly Carte Opera Company than to revise lyrics among devotees of the authentic performance movement. The Catholic Church felt able to revise its liturgy in ways that the Society of Friends did not. The more rigid the sanctions against redaction in the traditions of performance, the more one must fall back on claims that the canonical work, properly interpreted, is not really so bad after all. That, of course, is precisely what the Hymnal Oversight Committee did in the case of "Lord of the Dance." In short, not only are there important relationships between a work's canonical status and the tendency to downplay its evils or embarrassments, there are also important connections between the inability to redact a canonical work overtly, and attempts to revise it through the use of interpretive glosses.(49)

There is an important analogy here to laws, and especially to constitutions. Precisely because legal texts have the force of law, we do not usually think that we can disregard them like mediocre works of art from the past. Rather, we have to live with them, just as we have to live with The Merchant of Venice or The Magic Flute, whatever their imperfections. Moreover, the Constitution, at least in the United States, is not only a legal text but a symbol of national identity and national pride, and for some even an object of veneration.(50) As a result Americans tend to adopt one of two approaches to its defects: They tend to overlook its shortcomings, promote its achievements and regard critics as nitpicking, unpatriotic, or worse. On the other hand, they may tend to read better values into the Constitution through doctrinal glosses or creative interpretations.(51) Both of these practices of performances are likely responses when people are faced with a canonical work of art. And, we think, they are the most likely responses to the performance of constitutive legal texts.



1. J.M. Balkin is Knight Professor of Constitutional Law and the First Amendment, Yale Law School; Levinson is W. St. John Garwood and W. St. Garwood Jr. Regents Chair in Law, University of Texas Law School. [acknowledgements]

2. See, e.g., Sanford Levinson, Law as Literature, 60 Tex. L. Rev. 273 (1982); J.M. Balkin, Deconstructive Practice and Legal Theory, 96 Yale. L. J. 783 (1987).

3. See Raymond F. Glover, 3B The Hymnal 1982 1027-1028 (1994) for the history of the song. The original lyrics of "Simple Gifts" are set out in Edward D. Andrews, The Gift to be Simple: Songs, Dances and Rituals of the American Shakers 136 (1940):'Tis the gift to be simple, 'tis the gift to be free,'Tis the gift to come down where we ought to be.And when we find ourselves in the place just right,'Twill be in the valley of love and delight.When true simplicity is gain'dTo bow and to bend we shan't be asham'd.To turn, turn will be our delight'Till by turning, turning we come round right.We am grateful to David Hunter for providing us the sources quoted in this footnote and in the text immediately following.

4. We quote from the text as found in Hymns for Today (1983), No. 42.

5. Indeed, this is the subject of a recent book by Michael Marissen, Lutheranism, Anti-Judaism And Bach's 'St. John Passion' (Oxford University Press, 1998), discussed in James R. Oestreich, "Of Bach and Jews in the 'St. John Passion,'" New York Times, April 26, 1998, § 2, p. 33.

6. 42 Friends Journal, No. 9 (September 1996), at 5 (letter of Joseph W. Letson). We are grateful to Professor Larry Ingle, of the University of Tennessee--Chatanooga, for bringing this exchange to our attention.

7. Id. at 5-6.

8. 43 Friends Journal, No. 3 (March 1997), at 5 (letter of David Rush).

9. 43 Friends Journal, No. 5 (May 1997), at 6 (letter of Paul Thompson).

10. Plessy v. Ferguson, 163 U.S. 537, ___ (1896).

11. See W.S. Gilbert and Sir Arthur Sullivan, The Mikado, or the Town of Titipu, performed by Sir Charles MacKerras, Orchestra and Chorus of the Welsh National Opera, CD-80284, (Telarc International Corporation 1992). [Hereinafter cited as MacKerras, The Mikado].

12. Ivan March, Edward Greenfield and Robert Layton, The Penguin Guide to Compact Discs: New Edition viii-ix, 1314-1315 (1996)[hereinafter The Penguin Guide].

13. The recorded performance lasts 79 minutes and ten seconds. See Mackerras, The Mikado, supra note 1.

14. The Penguin Guide, at 1314.

15. The entire verse is as follows:

There's the nigger serenader, and the others of his race,
And the piano-organist, I've got him on the list!
And the people who eat peppermint and puff it in your face,
They never would be missed, they never would be missed!
Then the idiot who praises, with enthusiastic tone,
All centuries but this, and every country but his own;
And the lady from the provinces, who dresses like a guy,
And who "doesn't think she waltzes, but would rather like to try";
And that singular anomaly, the lady novelist,
I don't think she'd be missed, I'm sure she'd not he missed!

W.S. Gilbert and Sir Arthur Seymour Sullivan, The Mikado, or The Town of Titipu, in The Complete Plays of Gilbert and Sullivan 305-06(1941)[hereinafter Gilbert and Sullivan, The Complete Plays]. Needless to say, one could say much more about the social assumptions behind this verse. While no one has yet raised objection to dispatching the cross-dressing lady, Ian Bradley tells us that[e]ven within Gilbert's lifetime there ceased to be anything either singular or anomalous about the lady novelist (if indeed there ever had been), and for Edwardian revivals he variously substituted "the critic dramatist," "the scorching bicyclist" and "the scorching motorist." Throughout the 1920s and the 1930s Sir Henry Lytton sang of "that singular anomaly, the prohibitionist," while in 1942 it became "the clothing rationist."The Annotated Gilbert and Sullivan, Ian Bradley, ed. 274 (1982)[hereinafterThe Annotated Gilbert and Sullivan].

16. The Penguin Guide, at 1314. Mackerras, The Mikado, at track 7. Compare liner notes to id., at 15-16 (omitting second verse) with Gilbert and Sullivan, The Complete Plays, at 305-06 (including second verse).

17. The usual defense is that "everyone" understands that the Japanese in Gilbert's libretto are thinly disguised charactitures of persons in British society. Ironically, by 1907 the music from The Mikado was sufficiently popular in Japan that it formed part of the regular repetoire of the Japanese Imperial Army and Navy bands, while the British had stopped perofrming it temporarily for fear of giving offense. See The Annotated Gilbert and Sullivan, at 259.

18. Not all recordings have ommited the offending verse. See, e.g., the libretto to Sir Arthur Sullivan and Sir William Schwenck Gilbert, The Mikado, Arabesque Recordings Z8051-2, p. 9 (1986). Here, too, we are indebted to David Hunter for tracking down this source.

19. Compare Gilbert and Sullivan, The Complete Plays, at 331-332, with liner notes to Mackerras, The Mikado, at 27.

20. The Annotated Gilbert and Sullivan, at 274.

21. Id.

22. The Penguin Guide, at 650.

23. The Penguin Guide, at 1125.

24. Id. at 658.

25. See, e.g., Ivan March, Edward Greenfield and Robert Layton, The Penguin Guide to Compact Discs: Yearbook 1997/98 329 (1997)[hereinafter Yearbook](downgrading Earl Wild's performance of Rachmaninoff's Piano Concerto No. 3 because of cuts in the text); id at 442 (noting that the "one snag" in the Academy of St. Martin in the Fields' performance of Tchaikovsky's Souvenir is that "their version has been subjected to some tactful cutting"); The Penguin Guide, at 1334 (expressing disappointment at Emil Gilels' performance of Tchaikovsky's Second Piano Concerto because it uses the truncated Siloti edition).

26. See, e.g., Yearbook at 144 (noting that Cristoph von Dohnyani's performance of Dvorak's New World Symphony "should by rights, be a first recommendation, but it fails to observe the first-movement exposition repeat.")

27. The Annotated Gilbert and Sullivan, at 274.

28. Sanford Levinson and J.M. Balkin, Law, Music, and Other Performing Arts, 139 U. PA. L. REV. 1597 (1991).

29. Lawyers who advice clients perform law before at least two different audiences-- their clients and the legal officials whose behavior they are trying to predict. The lives and fortunes of clients are surely affected by the interpretations lawyers offer. But lawyerly interpretations also aim at another audience; lawyers offer advice based on the likely response of judges, jurors, or executive officials to their client's proposed course of action.

30. Perhaps the closest analogy to the performing artist is the literary critic whose criticisms are read by others.

31. Consider the dilemma facing an actor about whether she should perform in a production of the Marquis De Sade's Justine, or in a production of The Merchant of Venice that the actor believes underscores its antisemitism.

32. 83 U.S. (16 Wall.) 36 (1873).

33. Judges' ability to redact through interpretation is only an example of a more general feature of legal precedent: Judicial doctrine is important precisely because it directs lawyers' attention to judicial decisions and away from either the text or the original understandings behind the text.

34. These are not, of course, the only such examples. The post-New Deal Constitution gave diminished vitality to the Contract Clauses of Article 1, §§ 9 and 10 of the Constitution. Before the New Deal, these had served as important constitutional protections of private property. Similarly, the Tenth Amendment, with its reminder that the powers of the national government are delegated, and thus limited, was dismissed as a basically irrelevant "truism," without genuine performative import, in the heady days following the New Deal. Nevertheless, the the Tenth Amendment has enjoyed a revival in the past decade, as conservative judges on the federal bench have tried to promote the values of federalism. See Printz v. United States, 117 S.Ct. 2365; New York v. United States, 505 U.S. 144 (1992); Gregory v. Ashcroft, 501 U.S. 452 (1991).

35. And the Tenth Amendment, dismissed in U.S. v. Darby, 312 U.S. 100 (1941), as a mere "truism," has also resurfaced due to a conservative majority on the Supreme Court. See, e.g., U.S. v. Lopez, 514 U.S. 549 (1995).

36. See Richard Taruskin, TEXT AND ACT: ESSAYS ON MUSIC AND PERFORMANCE 354 (New York: Oxford University Press, 1995).

37. Album notes of Antoine Busnoy: In hydraulis & Other Works 5 (Dorian recording DOR-90184) 5.

38. Id.

39. Id., n. *.

40. Taruskin, at 356.

41. Law, Music and Other Performing Arts, at 1637.

42. Id. at 1621-22.

43. See, e.g., Donald Burrows, "A Fine Entertainment." Liner notes to George Frideric Handel, Messiah, The English Concert and Choir, Trevor Pinnock, conductor, DG Archiv 423-630-2 (1988), at 18 (noting that "the combination of solo voices in this recording is not precisely the same as that available for any of Handel's performances.").

44. Blachly's position about the Busnoy text also seems based on a notion of artistic criteria of integrity in performance that are largely independent of moral or political considerations. There is an interesting analogy to law. Just as a jurist might argue that the rule of law requires us to be bound by law regardless of its justice in the individual case, so too, Blachly seems to be arguing that artists and performers like himself are bound by principles of artistic performance that require him to obey the text regardless of its offensiveness or injustices. Blachly is offering an artistic equivalent to a version of what is now called legal positivism. Positivism claims that there is a discourse of law and legality that is in principle separate from the discourse of individual and political morality. But Blachly is offering something more than a positivist definition of artistic performance. He is also making a normative claim about what existing conventions dictate and how one should interpret music. This is by no means required by legal positivism. Many positivists believe that legal interpreters may look to morality to help them solve legal questions as long as the conventions of their particular society permit it. In the same way, someone like Mackerras might contend that a person deciding how best to perform The Mikado can take political and moral consequences into account. Our conventions of appropriate musical and dramatic performance permit considering these questions even though there is much more to good performance than political morality.

45. We emphasize that these considerations do not depend on whether one regards the work in question as "high" or "low" culture, or-- as in the case of Gilbert and Sullivan-- an indeterminate "middle brow" that has changed its status over time. Indeed, we think that the high/low culture distinction is a red herring. Our earlier essay used examples from Schubert and Beethoven, higher than which, presumably, musical culture cannot go. Rock and roll performers often change and revise lyrics for performance. But that is not because they constitute "low" culture. It is because they are immersed in an ongoing tradition of performance in which revisions are permissible and even expected features of artistic creativity. Nevertheless, we predict that as time passes, and future generations are increasingly distanced from those traditions, an "authentic performance" movement may well spring up, demanding that "Thunder Road" be performed exactly as Bruce Springsteen originally performed it in the middle 1970's. The irony, of course, will be delicious, since Springsteen prided himself on revising his music continually in live concerts.

46. See James R. Oestreich, "Of Bach and Jews in the 'St. John Passion,'" New York Times, April 26, 1998, § 2, p. 33.

47. Michael Marissen, Lutheranism, Anti-Judaism And Bach's 'St. John Passion' (Oxford University Press, 1998).

48. Consider that if we had to excise all sexism from Shakespeare's plays, we might have little left. Shakespeare's values pervade his work. But what can be said of Shakespeare can also be said of much of Western art and music, and not only of past works: If we attempted to rid contemporary music of its sexism, we might have little contemporary music left. Much the same is true, we think, with respect to our constitutional tradition. The injustices of the past are embedded in our constitutional tradition, in ways we do not always understand.

49. The political scentist Albert Hirshman noted a similar, although not identical triangular relationship between the ability to exit from an institution, voice in governing the institution, and loyalty to the institution. Easy exit and less voice may produce less loyalty; difficult exit and increased voice may produce greater loyalty. Albert Hirschman, Exit, Voice, and Loyalty [cites].

50. See Sanford Levinson, CONSTITUTIONAL FAITH (1988).

51. See J.M Balkin, Agreements with Hell and Other Objects of Our Faith, 65 Fordham Univ. L. Rev. 1703 (1997).



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