Copyright 1999 by Jack M. Balkin and Sanford Levinson. All Rights Reserved



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Copyright 1999 by Jack M. Balkin and Sanford Levinson. All Rights Reserved

Interpreting Law and Music: Performance Notes on
“The Banjo Serenader” and
“The Lying Crowd of Jews”


J.M. Balkin*1 & Sanford Levinson*2*

Introduction: A Little List of Performance Problems

In 1992 Sir Charles Mackerras recorded a new version of Gilbert and Sullivan’s The Mikado with the Welsh National Opera Orchestra and Chorus.3 Sweeping away the cobwebs of previous tradition, he produced a fresh new version that was immediately hailed by the critics. The authors of The Penguin Guide to Compact Discs (“Penguin Guide”) awarded it not only three stars for “an outstanding performance and recording in every way,”4 but also a “rosette”—their highest recommendation, signifying a performance of special excellence and quality.5

Yet, as the Penguin Guide’s authors noted, Mackerras’s performance was in many ways unusual. Mackerras sought to fit the entire work onto a single compact disc, meaning that the performance had to last less than eighty minutes.6 To this end, he omitted the overture, a choice that might easily enough 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.7 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? When 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 other alterations; one strongly suspects they were motivated by something other than a desire to save valuable time. Listeners will not hear the entire middle verse of Ko-Ko’s famous aria “I’ve got a little list.” As Gilbert and Sullivan fans know, in this song, Ko-Ko, the Lord High Executioner, describes his list “[o]f society offenders who might well be underground, [a]nd who never would be missed.”8

The omitted middle verse, which appeared in the original 1885 production, runs 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 be
missed!9

These lines were presumably omitted on the grounds that they are offensive (or as the Penguin Guide delicately puts it, “unpalatable”10) to today’s audiences. (Of course this begs the question whether the entire work should be considered offensive to the Japanese.11) Nevertheless, given that there are only three verses in the entire song this is surely a significant omission: Mackerras has literally chopped a third out of the piece!

Nor is this the only editorial change in the libretto. In The Mikado’s famous Act II aria, where his “object all sublime” is to “let the punishment fit the crime,”12 Mackerras alters the following verse:

The lady who dyes a chemical yellow


Or stains her gray 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.13

In fact, Mackerras could have offered a tradition of past performance to justify the second alteration, if not the first. Apparently, in response to repeated objections from American audiences (and particularly American blacks), 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 performance in 1948.14 Herbert inserted the new lyrics in The Mikado’s aria 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.”15 Apparently Herbert and D’Oyly Carte believed this change cured any potential racism or offensiveness in the lyrics, although one wonders if 1998 audiences would be so easily appeased.

Rupert D’Oyly Carte wrote to The London Times on May 28, 1948 that the modifications made for American performances would henceforth be employed “in the British Empire,” arguing that “Gilbert would surely have approved” of Herbert’s changes.16 Although this sounds like an appeal to original intention, D’Oyly Carte offered no evidence or argument to support his assertion. Whatever the justification, it has remained in official D’Oyly Carte libretti and performances ever since.17

By contrast, the D’Oyly Carte Opera Company has not officially modified Ko-Ko’s stated willingness to execute “the lady novelist” or “the lady from the provinces who dresses like a guy,” though contemporary audiences might well regard the former as misogynistic and the latter as (possibly) homophobic. While no one has yet raised objection to dispatching the cross-dressing lady, Ian Bradley tells us:

Even 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.”18

However, published librettos remained faithful to the original text with respect to these verses, unlike the cases of “painted with vigour” and “the banjo serenader.”19 In any case, Mackerras apparently decided that even the modified verse was still offensive, and he simply omitted it. Whatever one might say about the purported authority for A. P. Herbert’s changes, there is no evidence whatsoever that Gilbert would have acquiesced to Mackerras’s excision of Ko-Ko’s second verse, much less his deletion of the whole of the dialogue.

Given these cuts, it is quite interesting that the authors of the Penguin Guide lavished such praise on Mackerras’s performance. They are usually 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 Janáek’s Glagolitic Mass,20 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.21 Even more to the point, they award a rosette to John McGlinn for “faithfully following the original score” of Kern and Hammerstein’s Showboat, a score whose lyrics can surely raise hackles as great as anything found in The Mikado.22 Finally, the authors of the Penguin Guide downgrade many performances for employing cuts, even those of long standing or ones sanctioned by the composer.23 Indeed, sometimes they criticize performances for failing to observe repeats.24

Given their scruples in these cases, what best explains the authors’ 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 fidelity or 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. It also increases the chances that an operetta 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.

Debates about how to perform The Mikado for modern audiences must seem strangely familiar to lawyers, who are continually worried about fidelity to text, the authority of original intentions, and the problem of interpretation under changed conditions. Yet, all of these problems arise regularly in musical and dramatic performance.

What is surprising, though, is that for many years when law professors searched for analogies between law and art, they looked not to operas and plays for comparisons but to poems and novels. Indeed, the analogy between law and the literary text has been central to the law-as-literature movement from its inception. Both of us have contributed to the development of this analogy,25 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.”26 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 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 predilections 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. Characterizing law as a performing art emphasizes something that tends to be neglected in comparisons between law and literature—the “audience” for legal performance. Like other performing arts, legal performance is more than the interpretation of a text by a performer: it involves a triangle of reciprocal influences between the creators of texts, the performers of texts, and the audiences affected by those performances.

Audiences are important for two reasons. First, audiences create special responsibilities for performers. Because performing a work affects an audience, performers are responsible for what they choose to perform and how they choose to perform it. Second, audiences play an important although often unacknowledged role in creating the conditions for authentic or faithful performance. Performances exist in traditions and institutions of performance that set standards for what kinds of performances are faithful or authentic. Judgements about faithfulness and authenticity, in turn, occur against the backdrop of the many different communities that help shape the tradition, including the audience of fellow performers and laypersons. Standards of faithful or authentic performance are social and evolve over time. They result from negotiation and struggle between performers and these various audiences. This is true no less in law than in music and drama.

In this Article, we discuss law’s status as a performing art by asking how the problem of performing offensive texts is similar to the problem of interpreting and enforcing unjust laws. We argue that these similarities arise from the fact that both problems are problems of performance, even though we also argue that the two problems differ in many important respects. The triangular relationship between creator, performer, and audience produces a limited set of available options when a performer is faced with a work that would be artistically offensive or legally unjust to perform. Describing these options gives us a deeper and richer understanding of what it means to say that legal interpretation is a kind of performance and that law is a performing art.27



I. The Responsibilities of Performance

As our example of Gilbert and Sullivan suggests, 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. Although the problems of offensiveness and injustice are distinct, they do share one similarity. Both create a problem of conflicting responsibilities for the performer—responsibilities to the work being performed, responsibilities to the performer’s sense of artistic integrity, responsibilities to her conception of faithful performance, and responsibilities to the people who will be affected by what the performer does. The quality of a performance often depends on how well the performer harmonizes these conflicting demands.

Consider, for example, a twentieth-century hymn written by Sydney Carter, entitled “Lord of the Dance.”28 The words are set to the lovely Shaker tune “Simple Gifts,”29 best known to many through its appearance in Aaron Copland’s ballet Appalachian Spring. The lyrics are as follows:

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.

Refrain:
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:
Refrain

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:
Refrain

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.30

Although the music is lovely, the lyrics are troublesome. The third verse recites the old anti-Semitic accusation that the Jews are Christ-killers. The descriptions in this verse have a long and unfortunate history. Recurrent portrayals of “the holy people . . . whipp[ing] and . . . stripp[ing] and . . . h[anging Jesus] high” go back as far as the Gospels, especially the Gospel according to St. John, the one most overtly hostile to Judaism. As the Catholic Church has recently acknowledged,31 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.32

More 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 inevitably associated with what they choose to 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.33 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.”34 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 it authorized public performances as part of its canon of officially approved materials.

The members of 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.35 Even so, the Committee might have authorized a redacted version for the hymnal despite Mr. Carter’s objections. For example, the committee could have replaced the words “the holy people” with “the faithless people” or even “the unbelievers.” Apparently, however, it judged that this was unwise, either out of respect for the author’s creative authority, fear of copyright infringement, or because the Committee felt it lacked the institutional authority to require redaction. Instead, the members of the Committee chose another strategy. It 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.’”36 In addition, “[a] historical note further clarifies ‘the ambiguous “they”’ and notes the different parties involved: the Pharisees, the Romans, the Sanhedrin, and the Sadducees.”37

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.’”38 Of course, the Hymnal 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 is 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.”39 Thus, he argued, “[a]ny 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.”40 Accusations of paranoia, of course, depend on the plausibility 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.41 Justice Brown argued that the suggestion was preposterous: “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.”42

Whether one agrees with the Hymnal Oversight Committee or its critics, both sides accepted 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.

Nevertheless, it is interesting to compare the controversy over “Lord of the Dance” with the D’Oyly Carte Opera Company’s decision to alter the “official” lyrics of The Mikado. Responding to the outcry from American audiences, the D’Oyly Carte Company, which had carried on the tradition of performing the operettas for decades, felt completely assured in emending Gilbert’s original libretto. Rupert D’Oyly Carte even argued that he was only doing what Gilbert himself would have wanted.43 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.

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