That is the subject of this beautiful paper by Kevin Toh, a philosopher of law at University College London. (The full title of his scholarly paper is “Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation.”) In addition, Michael B. Coenen, a law professor at LSU in Baton Rouge, has written an excellent review of Professor Toh’s work. As Professor Coenen correctly notes, Toh is not the first to explore the relation between musical and legal interpretation; past and present preeminent legal scholars such as Jerome Frank (“Words and music: some remarks on statutory interpretation“), Richard Posner (“Bork and Beethoven“), and Jack Balkin (“Verdi’s High C“), among many others, have commented on the connection between music and law. But Toh’s extensive research draws from a wide variety of scholars, including literary theorists, philosophers of art, social psychologists, evolutionary biologists, as well as legal theorists. Below the fold is an extended excerpt from Prof Coenen’s masterful review:
Constitutional texts and musical works are different in important respects, and those differences might end up supporting different conceptions of interpretive authenticity within each domain. Constitutions, unlike songs, exert binding force on people and institutions; constitutions, unlike songs, emerge from lawmaking bodies that claim a special authority to create them; constitutions, unlike songs, can be formally altered only through specifically-designated amendment procedures; and so on. But that is, in a way, the ultimate point of Toh’s extended riff on the music-law connection. What the example of musical performance helps to illustrate is that the ideal of interpretive authenticity depends at bottom on how we define the object to be interpreted. And, as Toh once again suggests, the question of how we define the object to be interpreted may depend, at least in part, on what we find “valuable and important” about the object itself (p. 19).
In other words, how do we determine what the “authentic” or true meaning of a song or piece of legislation is? In the domain of music, a good place to start is the book “Approaches to Meaning in Music” (whose cover is pictured below), published by the Indiana University Press. In the domain of law, however, your guess is as good as mine! (Hat tip: Will Baude.)