This article continues the discussion that Sanford Levinson and I began over twenty years ago about the relationships between law, music, and other performing arts. It uses as its central example an actual controversy that occurred at the La Scala Opera house in December 2000, when a tenor failed to sing a high C in Verdi's Il Trovatore and the audience erupted in boos, blaming the conductor for a failure of interpretation. Maestro Riccardo Muti defended his choice on the ground that the C does not appear in Verdi's original score; however there is a long tradition of Italian tenors displaying their abilities by signing the high C, and audiences have come to expect it. In fact, one Italian music critic argued that even if Verdi had not written the high C, "it was a gift that the people had given to Verdi" -- an assertion that sounds remarkably like democratic constitutionalism.
The article proceeds through the many arguments that have been offered for and against Maestro Muti's interpretive position. They turn out to be virtually the same as the arguments that lawyers make about constitutional interpretation. This similarity is not accidental. Like (certain genres of) music and drama, law involves a text that has to be put into action by interpreters before an audience. And all three practices involve a "triangle of performance" -- an intricate set of relationships and duties between the creators of texts, the interpreters of texts, and the audiences before whom the texts are performed.
As a result, in law, music, and drama alike, there are a familiar set of styles (or modalities) of argument that participants generally use to justify their choices about how to bring a text to life, or, in the words of the American Legal Realists, to put law into action.
Not only are the styles of argument similar, but performances in law, music, and drama are also constrained by traditions and genres of performance. Just as in law, there are certain interpretations in music and drama that are "off the wall" and "on the wall" at any point in time. And, just as in law, these conventions can change over time through determined action by movements and groups.
The differences between law and the performing arts, however, are just as important as the similarities. Legal performances are usually canonical in a way that musical and dramatic performances are not. It is mandatory to interpret and apply laws in a sense in which it is not mandatory to interpret and perform artistic works like Il Trovatore. Second, at least in the United States, interpretation is hierarchically organized. If a lower court disobeys the interpretation of a higher court, a higher court has the right to reverse it. On the other hand, when Riccardo Muti decides that he is going to perform the G in the Verdi's original printed score instead of the traditional high C, his decision does not have the same effect. Nothing prevents another opera conductor from performing the high C that very same night in another opera house somewhere in the world. And if another conductor does so, there is very little that Muti can do other than criticize. In short, both the similarities and the differences between law, music and drama concern (1) how conventions of performance are organized, defended and enforced, (2) how they are embedded in institutions, and (3) how they change over time.