The music of law

AT THE START of his university career almost two decades ago, this columnist thought about designing and teaching a subject called “Music and Law”. The subject would have been an interdisciplinary one that examined the similarities between music and law, and the ways in which each discipline might learn from the other. The subject was unfortunately never developed and remained an idea only, but thankfully this columnist’s love for both music and law has not diminished since the idea was born. This article is a modest attempt to re-engage with this fascinating area by reference to both Western and Chinese traditions. The column commences by outlining Western and Chinese philosophical approaches to the relationship between music and law. It then discusses the similarities between the two. Finally, it explores the question as to whether law has its own music and, if so, how.

PLATO AND CONFUCIUS

The great philosophers of the past have discussed connections between music and law. The Greek philosopher Plato said, “Any musical innovation is full of danger to the whole state for when modes of music change, the fundamental laws of the state always change with them.” Another saying attributed to Plato is that “music is a moral law”, although Plato’s authorship of this appears questionable.

The exact meaning of Plato’s statements is not clear, although he clearly drew a connection between music and law. Another great philosopher who drew this connection was Confucius. To Confucius, music (音乐) was closely connected to rites (礼仪) and each was an integral part of achieving an orderly and harmonious society.

“The Record of Music” (乐记), which is chapter 19 of the Chinese classic The Book of Rites (礼记) and contains details concerning the life and teachings of Confucius, states that “music comes from the inside, ritual comes from the outside”(乐由中出, 礼自外作). This is generally interpreted as meaning that ritual is the external basis for governing or regulating society. Music is the internal basis for cultivating harmony between people and between people and heaven.

Music thus came to be an important part of ritual in the form of “elegant” or “refined” music (雅乐), which symbolised a good ruler and stable government and was the formal or official music of the imperial court. Like many forms of official music, however, it was isolated from external influences and subsequently became ossified and failed to evolve.

The concept of music as a key element of governing the state and maintaining harmony within society goes all the way back to the legendary Yellow Emperor (皇帝). According to legend, in 2697 BC, the Yellow Emperor requested the official mathematician, Ling Lun (伶伦又称泠伦), to create a system of music. Ling Lun did so by determining the fundamental pitches of music, known as the 12 pitches, (十二律吕) by cutting bamboo pipes of different lengths. The most important pitch was the foundation pitch, which was known as the Yellow Bell (黃鐘). It was from this pitch that the other pitches were calculated.

Importantly, each successive dynasty in imperial China recalculated the length of the Yellow Bell to align the dynasty with the laws of the universe. It has been said that the difficulties associated with this were so great that one official suggested that the length of the pipe for the Yellow Bell should be based on the measurements of the emperor’s fingers. This story prompts an amusing parallel with the saying in common law jurisdictions that “equity varies with the length of the Chancellor’s foot” (for a discussion of equity, see China Business Law Journal, volume 3, issue 5: Law or equity?).

At this point, it is interesting to note that the Chinese word for law, lü (律), consists of two parts. The phonetic part of the character [声旁] – namely the part on the right represented by the character 聿 – symbolises writing or written rules. The radical part of the character [形旁] – namely the part on the left represented by the character 彳– suggests the steps that are taken to enforce the written rules. The character is also used in the compound lü lü (律吕) to represent the 12 pitches used in ancient China. Accordingly, the relationship between music and law is embodied within the Chinese language itself.

SIMILARITIES BETWEEN MUSIC AND LAW

A small, but erudite, body of literature has arisen on the relationship between music and law. In particular, the literature explores two key similarities between music and law. The first similarity is interpretation: each discipline involves a process of interpretation. In the case of music, the process of interpretation applies to the interpretation of the music as created by the composer. In the case of law, the process of interpretation applies to the interpretation of the law, particularly the written law as created by the legislature.

In each case, the challenge is how to determine the true intent of the creator (the composer in the case of music and the legislator in the case of law) and the extent to which a “correct” interpretation should be limited by the written text. In music, there has been a long-running debate about whether music should be interpreted and performed on the original instruments and in accordance with the style and pitch that existed at the time the music was composed.

In law, the legal systems of both common law jurisdictions and mainland China have long struggled to determine how legislation and contracts should be interpreted by the courts and whether a literal approach or a purposive or contextual approach should be adopted (for a discussion about related issues, see China Business Law Journal, volume 12, issue 5: Contract interpretation). Similar challenges, of course, arise in the context of interpreting religious texts.

The second similarity between music and law is performance: each discipline involves a process of performance. An eloquent explanation of this similarity, together with the interpretation similarity, has been provided by the author Daniel Kornstein in his book The Music of the Laws. He wrote, “Lawmakers can be likened to musical composers: both write the texts that others must interpret. And judges and lawyers are the performers of legal music. They look at the texts, be they constitutions, statutes, or judicial precedents, and put on those texts their own interpretations. In performing their roles, judges and lawyers interpret the legal texts much as instrumentalists interpret musical scores.”

There is no doubt that, like music, the written text of law is created for the purposes of regulating actions – and the way in which actions are performed – by those persons who are subject to the law. The concept of performance can thus apply to both the way in which the law is interpreted and the way in which the law regulates actions and requires people to perform their lives in compliance with the law.

DOES LAW HAVE ITS OWN MUSIC?

Most people would agree that musical composition is usually based on some rules. Indeed, this is a reality that applies to most art forms. Art generally requires form and form often involves rules. Of course, the inflexibility of the form and the strictness of the rules have changed over the centuries. Classical music, for example, was subject to strict forms. One of the forms, the sonata, consisted of an “ABA” structure, under which there were three main sections: an exposition of the theme, a development of the theme, and a recapitulation of the theme. Although form and rules started to break down in the early 20th century, most music today still has some form and observes certain rules.

If music has its own rules, does law have its own music? This is perhaps more a philosophical question than a factual question. However, this columnist can offer at least two examples of where law has its own music, even if it is more in relation to the aural aspect of music, namely music as sound.

The first example is legislation that governs the sale of goods and the situation in which goods are put up for sale by auction. Traditionally, an auction has involved a person known as the auctioneer, who wields a hammer called a gavel. When the highest bid is accepted by the auctioneer, the sale is announced by the fall of the gavel. In most, if not all, common law jurisdictions, the legal effect of the gavel is provided in legislation. In other words, when the gavel falls and the sound of the gavel is heard, the sale is announced and becomes legally effective.

The second example concerns the use of bells in parliamentary systems of government. In Australia, for example, bells called division bells are rung in both the House of Representatives and the Senate. The ringing of the division bells signifies that a vote is about to take place. After the bells stop ringing, normally after four minutes, the doors to the chamber of the House of Representatives or the Senate are locked and the voting takes place. The use of the division bells in this way is given legal effect by rules of parliament, which have a constitutional basis. Thus, the bells are an integral part of voting in parliament.

It might be said that in maintaining order and governance in parliament, the division bells operate in a similar manner to the legendary Yellow Bell in Chinese history.