Law as dance, theater, or music: legal procedure and ritual

Cross Currents, Summer, 2002 by Rafael Chodos

So the cynicism of the late twentieth century led many of us to conclude that procedure swallows up substance and that there are no two ways about it. For whatever the Torah might say, and however perfect the law may be, we are stuck with people interpreting it and applying it in actual cases and therefore there is no guarantee that the substantive law will be accurately applied. What is important is not the substantive law but rather the psychology, and the politics, of the decision-makers.

Law and Music; Practice and Performance

There is a different model for the relationship between substance and procedure which is more appealing and, I will argue, more accurate: music. Music, too, unfolds through time, like the petals of a flower. The static concept--the architecture of the composition--needs to unfold, needs performance. And therefore it needs a performer. But there is such a thing as a good performance and a bad performance: the fact that this performer happens to be on the stage now does not mean that his performance is good or that he has gotten the music right. The underlying structure, the beauty and truth of the music, may become apparent only through a long series of performances over time. Or it may become apparent in the course of one really good performance. But there is an underlying structure and the work does have a static and eternal aspect, similar to the static architecture of substantive law, which we appreciate by the time we have heard enough performances of the piece to understand it. We recognize the moment wh en a performance of the piece allows us to encounter its structure: the realization of it creeps up on us and it makes us gasp at the beauty of the work.

I am thinking here of a short piece like Mozart's setting of the Ave Verum Corpus, to give just one example. The slow opening phrases, with their apparently saccharin and complacently arpeggiated chords, seem at first to be going nowhere until we get to the first mention of the cross, and then we come to the second phrase where we hear about "undo fluxit et sanguine" with its mysterious sonority and we wonder what Mozart has in mind, and then we get to the part about "in mortis examine" and we realize what a dramatic, shocking progression Mozart has cooked up for us, in which the inevitability of death and the trial which awaits us there are evoked in harmonies more vibrant and exquisite than we ever expected, so that the world of death becomes more alive to us than this world from which we started. But then we experience the peripety and resolution Mozart has constructed, so that we are brought back to this world and we go over the opening phrases in our mind--which we heard just a few seconds earlier--and we realize all of a sudden where they fit in the structure and we gasp in admiration at the whole piece.

I think often of the performers privileged to participate in the performance of a piece like that. How often may they have practiced their scales, their arpeggios, their sustained bowing techniques, their artificial and pointless crescendos and diminuendos--practiced for endless hours by rote, with impatience, probably mindlessly, until the necessary skills were inculcated in their arms and fingers and voices; and then they finally have a chance to use those skills and actually make music with them.