Vol. 11 No. 1 (January 2001) pp. 42-44.

SONGS WITHOUT MUSIC: AESTHETIC DIMENSIONS OF LAW AND JUSTICE by Desmond Manderson. Berkeley: University of California Press, 2000. 303 pp. Cloth $55.00. ISBN: 0-520-21688-1.

Reviewed by Lief Carter, Department of Political Science, The Colorado College.

Desmond Manderson has here converted a dissertation completed in the 1990s at the McGill University Institute of Comparative Law into an ambitious book. Judging by his youthful photo on the dust jacket, he is an ambitious and successful scholar, for he already holds the post of Senior Lecturer and Director of the Julius Stone Institute for Jurisprudence at the University of Sidney. For a small audience, the book will no doubt succeed as fully as has Manderson's career. For a larger audience, the book's reach, to show that law is "a cultural medium of expressive form" (p. 201), will exceed its grasp.

Manderson starts promisingly: "SONGS WITHOUT MUSIC is about the aesthetic dimensions which lie at the heart of law and justice" (p. ix). People routinely applaud or condemn legal and political expressions. Conservatives condemn pro-choice legal decisions and liberals condemn the U. S. Supreme Court's decision in BUSH v. GORE. Could it be that we react in these cases through the same kind of nervous system response that drives us to turn up the volume on the radio when good music comes on, or turn it down when bad music comes on? It would be intriguing and credible to explore the possibility that a common, biologically "wired," aesthetic sensibility explains our reactions to the "sights and sounds" of such superficially different experiences as music and law.

Manderson does not follow that intriguing path. Rather, he offers us an extended semiotic essay that postulates essential similarities between music and law in their "aesthetic methodology" (form and image), their "aesthetic epistemology" (the social values imbedded in their symbols), and their normative implications. He divides the book into three corresponding parts with two or three section in each part. Each section begins with a page of musical manuscript. For example, the section titled "Legal Theory Against the Law" begins with a snippet from Messiaen's "Quartet for the End of Time." (In my copy, this snippet is printed as if a printing plate slipped in the machine, throwing part of the music off-kilter.) Messiaen's "tangle of rainbows, for the angel announcing the end of time," supposedly reinforces Manderson's assertion: "Legal theories, whether of denial or despair, remain governed by the desire for order and coherence. The rejuvenation of legal theory requires a new aesthetics, which appreciates the value of disorder by developing alternative metaphors for legal ideals" (p. 173). Manderson's purpose throughout the book is to undercut superficial coherence theories of justice. In doing so he raises the disturbing possibility that we should give up coherence standards for judging academic work as well.

Bach, an early motet, and Paganini, as well as Messiaen and Mozart, introduce

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various sections to heighten our aesthetic appreciation of different areas of law. The motet introduces early English statutes from Magna Carta to the beginning of the reign of Henry VIII. In a section titled, "Metaphors of the Boundary and Boundaries of the Metaphor" (p. 130), the superfluity of variations on Paganini's 24th Caprice introduces us to the superfluity of meanings, both healthful and morbid, that the law ascribes to "drugs."

Since the argument tends toward the opaque, let me give a more detailed illustration. Manderson titles the first section of the second part (aesthetic epistemology, not to be mistaken for aesthetic methodology, which is the first part), "Green Death - Aesthetic Interpretations and Influences in the Death Penalty." The section begins with the opening adagio page of the Mozart Requiem. The ambiguous interpretive possibilities presented by the Requiem ("But, who, exactly, is being mourned here?" p. 94) lead us to see profound irrationality behind the facade of rational justification for the death penalty. Using "aesthetics in the exegesis of legal texts helps us to read and understand what the law says" (p. 94). Moreover, "[t]he aesthetic dimension of the death penalty is a complex interplay of the sensory imagery that surrounds the experience of execution and the symbolic meaning which attaches to it" (p. 95). Manderson develops individual pieces of his argument in this section around titles from various movements in the Requiem. Thus the Dies Irae section includes:

How great a terror there will be When the Judge shall come Who will thresh out everything thoroughly

This aesthetic expression raises our receptivity to Manderson's arguments against the implicit brutality in the pro-death penalty positions of Ernest Van den Hagg, Walter Berns, and Isaac Ehrlich (pp. 101-5).

Of the several ways to assess this book, the most charitable is to treat it as a passionate act of self-creation. Manderson frames himself in this book much as I imagine artists in the avant-garde art world establishing themselves by doing new things. Manderson does combine an impressive range of academic elements in new ways. Using my "eyes shut, finger on a page of the index technique," we find, in order with no omissions: Plato; Plucknett, Thomas; pluralism, legal; pollution; polyphony; Posner, Richard; Pospisil, Leopold; and Prejean, Helen.

Assessed via the conventional criteria for academic argument, however, this book is maddeningly loopy. It's large assumptions and it line-by-line arguments create too many questions (Wasn't Plucknett Theodore, not Thomas?) and too many contradictions to count. The largest of the large problems is of course that the aesthetic experience of music requires that we hear it. Reading about music analysis and music theory is no more like performing or listening to music than reading academic legal theory is like negotiating a legal divorce settlement. No doubt thousands of people know the Quartet for the End of Time, and thousands know their legal theory. But, how many know both? (I suppose readers who play the piano could at least plunk out the choral entry of the Requiem, except that Manderson's excerpt doesn't indicate what clef to play the parts in.). Maybe reading about music and reading about law are similar cognitive activities, but they won't be like the cognitive activities of doing music or law.

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They belong entirely to the aesthetic of the academy.

The second big contradiction in the argument is that Manderson, in the name of celebrating legal pluralism and diversity, makes a relentlessly essentialist argument. Reifications abound to support his plea against reification. Although his first sentence, above, held promise, his second sentence starts down hill. "Aesthetics is the faculty which reacts to the images and sensory input to which we are constantly exposed and which, by their symbolic associations, significantly influence our values and our society" (p. ix). I'm sorry. Are we to believe that John Ashcroft and Al Sharpton and Sandra Day O'Connor and Eminem belong to the same "we" that is shaped in the same way? This same urge to reify infects many of his musical judgments. In the C major prelude of Book I of Bach's Well Tempered Clavier "there is no melodic line., no change in dynamics, no rhythmic complexity or variety" (p. 5). However, the absence of dynamics is purely a function of the performer and the instrument. The mechanism of a harpsichord does not allow continuous dynamic change. However, on the piano or clavichord, most performers take advantage of their instrument to make lovely dynamic changes. On the same page Manderson says that nothing "guides our thoughts away from the pure abstraction of the notes," but Gounod managed to convert the prelude into the world's most famous Ave Maria melody.

At the line-by-line level, readers will peruse page after page with no hint of connecting to the musical offering that began them. Indeed, the many convincing points Manderson makes about law, e.g., the multiple meanings of "drugs," don't really seem linked to or heightened by the musical discussion at all. In typical, heart on sleeve style, Manderson claims on page 95 that Mozart's Requiem (Why THIS well-ordered and deeply coherent requiem?) will throw light "on the legal reasoning of death and the death of legal reasoning." On the next page he suggests that Ernest Weinreb's wrongly uses the image of Christ's empty coffin to suggest the survival of legal rationalism, but Manderson thinks the coffin means "that it never existed at all." But by the end of the death penalty analysis we learn that a better kind of legal rationalism would save us. So legal rationalism, though it never existed, died, and having died can save us.

A few decades ago the rock band "Talking Heads" made the movie "Stop Making Sense." The most compelling way to read this book may be to take it not as a plea to see law as "a cultural medium of expressive form" or, more generally, as a plea to recover aesthetic sensibility (worthy though that plea indeed is), but rather as a call to us academics to give up Apollo for Dionysus and to become more adventuresome and playful in our legal analyses. (Those who know their classical music might profitably take Alfred Schnittke's second violin sonata as an aesthetic model for this book.) On that score Manderson is surely right. For the handful of folks who know both their classical music and their semiotics and their legal theory and politics inside out, this catholic book offers many treats. However, what about the larger audience? Presumably fans of "Public Enemy" (and "Talking Heads") already know how to "fight the power," so we are left with an intriguing question: What musical examples might effectively communicate the message to Sandra Day O'Connor, or to Bobby Knight?

Copyright 2001 by the author, Lief H. Carter