Justice as Improvisation

The Law of the Extempore

Sara Ramshaw

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781135102777
• Topic: History
• Subtopic: North American History
• Index: History

Justice as Improvisation: The Law of the Extempore theorises the relationship between justice and improvisation through the case of the New York City cabaret laws. Discourses around improvisation often imprison it in a quasi-ethical relationship with the authentic, singular 'other'. The same can be said of justice. This book interrogates this relationship by highlighting the parallels between the aporetic conception of justice advanced by the late French philosopher Jacques Derrida and the nuanced approach to improvisation pursued by musicians and theorists alike in the new and emerging interdisciplinary field of Critical Studies in Improvisation (CSI). Justice as Improvisation re-imagines justice as a species of improvisation through the formal structure of the most basic of legal mechanisms, judicial decision-making, offering law and legal theory a richer, more concrete, understanding of justice. Not further mystery or mystique, but a negotiation between abstract notions of justice and the everyday practice of judging. Improvisation in judgment calls for ongoing, practical decision-making as the constant negotiation between the freedom of the judge to take account of the otherness or singularity of the case and the existing laws or rules that both allow for and constrain that freedom. Yes, it is necessary to judge, yes, it is necessary to decide, but to judge well, to decide justly, that is a music lesson perhaps best taught by critical improvisation scholars.

Chapter 1
Introduction

The law of the extempore

Eric Lewis, jazz musician and philosophy professor at McGill University in Montréal, tells of a group of US Navy SEALs tasked with putting out a large number of offshore oil fires. The job was extremely dangerous, and they studied a detailed training manual to prepare themselves for all possible eventualities. Despite this meticulous preparation, the work resulted in numerous casualties and had a very low success rate. The fires, it seemed, refusedtofollowprescribedplans.¹ Thenavalacademy,lookingforasolution to this dilemma, adopted principles of improvisation in their training, inculcating some basic principles and a sense that the SEALs should trust themselves to react appropriately to the situation on the ground. This resulted in far fewer casualties and far more fires being successfully extinguished.²

Justice as Improvisation applies the wisdom of this story to the law with the understanding that it is indeed necessary to improvise; this is not surprising. Improvisation hums ‘in the background of all life’ (Toop 2008: 139); everyone improvises (Snow 2004: 49). It is indeed necessary to improvise, but to improvise well, well, that’s another story (Derrida 2004a: 332).

Discourses around improvisation often imprison it in a quasi-ethical relationship with the authentic, singular ‘other’,³ either denying, or making extremely difficult, any definitional structure (Fischlin and Heble 2004: 31; Cobussen 2008a: 6).⁴ ‘Improvisation’, writes Bailey (1992), ‘is always changing and adjusting, never fixed, too elusive for analysis and precise description’ (ix). Any attempt to define or describe improvisation is thus said to constitute ‘a misrepresentation, for there is something central to the spirit of voluntary improvisation which is opposed to the aims and contradicts the idea of documentation’ (ix; see also Nachmanovitch 1990: 12).⁵

The same can be said of justice. The only agreement as to the meaning of justice is that there is no agreement (Manderson 2000: 192). Nevertheless, as with improvisation, we cannot escape it. Justice, argues Manderson, ‘is hard to explain exactly because it is felt to be bedrock and self-evident’ (192). Might then the bon mot of Paul Simon, that ‘improvisation is too good to leave to chance’ (quoted in Fischlin and Heble 2004: 31), likewise concern justice? Applied to improvisation, it suggests that ‘the rhetoric of chance (and therefore spontaneity) is best set aside when it comes to improvisation’ (31). As Fischlin and Heble powerfully articulate, ‘[t]he paradox (and anxiety) of a chance that can’t be left to chance neatly encapsulates how improvisation voids definitional modes of knowing in its polymorphous ability to be both chance and nonchance simultaneously’ (31).

One response to this anxiety, at least as it pertains to improvisation, is to recognize and interrogate further its inherently contradictory nature, as that which flouts form (Soules 2004: 274) even as it is most defined by it, by its ability to ‘reinvent or comment on already established forms’ (Fischlin and Heble 2004: 31). The task of working through these paradoxes and separating improvisation from its mythic image falls on critical improvisation scholars. Offering some limited designation, one definition of improvisation adopted in Critical Studies in Improvisation (CSI)⁶ is that of a ‘musical practice ... {that} embodies real-time creative decision making, risk-taking, and collaboration’⁷ (Heble⁸ and Siemerling 2010: 4). Despite the musical focus of this definition, CSI research is currently pursued in ‘a range of overlapping fields of inquiry’ (4), such as postcolonial studies, cultural studies, literary studies, African American studies, black performance, history, psychology, theatre studies and gender studies (4).

Justice as Improvisation adds to the above list the discipline of law.⁹ The wide-ranging appeal of improvisation as a model or subject of study demonstrates ‘the need to consider improvisation not simply as a musical form, but, perhaps more urgently, as a complex social phenomenon that mediates transcultural inter-artistic exchanges that produce new conceptions of identity, community, history, and the body’ (4). In the words of Heble and Siemerling: ‘musical practices in which improvisation figures prominently are social practices’ (5, emphasis in original):

Particularly for music-makers whose explorations question settled habits of response and judgment, improvisation becomes an important locus of resistance to orthodoxies of the imagination (knowing), of relations with others (community) and of relations to the materials of the world around us (instruments). Improvised music has the potential for reshaping possible relations among these materials of existence – knowing, community, instruments – in ways that can fundamentally inform and transform contemporary cultural debate.

(Heble and Siemerling 2010: 5; see also
Fischlin and Heble 2004: 11)

Musical improvisation is herein explored as a model for social change with a view to shaping political, cultural, and ethical dialogue and action.¹⁰ Justice as Improvisation re-imagines justice as a species of improvisation through the formal structure of the most basic of legal mechanisms, judicial decision-making, offering law and legal theory a richer, more concrete, understanding of justice. Not further mystery or mystique, but a negotiation between abstract notions of justice and the everyday practice of judging. Improvisation in judgment calls for ongoing, practical decision-making as the constant negotiation between the freedom of the judge to take account of the otherness or singularity of the case and the existing laws or rules that both allow for and constrain that freedom. Yes, it is necessary to judge, yes, it is necessary to decide, but to judge well, to decide justly, that is a music lesson perhaps best taught by critical improvisation scholars.

Justice as Improvisation thereby builds on the insights offered by CSI and calls for the study of law and improvisation within its ‘broader, theoretical context’(Landgraf2011:94),insistingthat all law is improvisation.¹¹ To provide some ‘minimal structures’,¹² which allow for a fuller discussion of the fundamentally improvisational nature of law, this interrogation ‘takes place’¹³ (Finn 2008: 203) through the case study of the New York City (NYC) cabaret laws, or, more specifically, on the NYC Cabaret Employee’s Identification Card system of regulation. Originally applying solely to chefs, waiters, dishwashers and the like, the regulations governing cabaret employees underwent reform in 1943 to include musicians and entertainers, who until the late 1960s would be required to hold an ID card in order to work in a licensed cabaret club. The introduction of these ‘police cards’,as they were otherwise known, occurred roughly contemporaneously to the emergence in after-hours night clubs in Harlem of a new and supposedly ‘wild’, improvisatory brand of jazz – bebop. While the temporal connection between the ID cards and the birth of bebop in Harlem is of enormous legal historical significance, and deserves careful and considered treatment elsewhere, it is, for me, less theoretically interesting than the oppositional relation simultaneously created and troubled by the NYC ‘police cards’,as between law and improvisation. Through the ‘police cards’, law was positioned as determinate and general against a wildly singular improvisation. These laws, though, were not beyond dispute or challenge, indicating that the opposition between law and improvisation can never be purely settled or determined.

This is not the first book to engage with the NYC cabaret laws. Two notable examples of other research done in this area include The Police Card Discord (1993) by Maxwell Cohen and Gigs: Jazz and the Cabaret Laws in New York City (1991) by Paul Chevigny. Both authors are lawyers who, along with their musician clients, challenged the cabaret laws in their variant guises over the years: Cohen in the late 1950s, Chevigny in the mid-1980s and then again in the mid-2000s. They both approach the subject from a civil libertarian stance, focusing on the rights of the musicians involved and the denigrating power of the cabaret system of regulation. Justice as Improvisation is not really about the NYC cabaret laws, though, and offers little novelty in this regard. What this account offers, which is missing in Cohen and Chevigny’s books, is an analysis of the creative life of law, which brings law in line with jazz, not in opposition to it, through improvisation.

From this case study, certain inevitabilities follow, such as a concentration on the improvised music of the bebop era. While other possible entries into the study of law, justice and improvisation convincingly present themselves – the most obvious being the ‘free jazz’ or ‘free improvisation’ movement of the 1960s (Gioia 1997: 338)¹⁴ – compelling grounds exist, I believe, for an almost exclusive focus on bebop. Adding to the obvious temporal connection mentioned above, is the broader social, as opposed to the purely musical, significance assigned to improvisation following the ‘bebop revolution’ (Kofsky 1998a: 112; Kofsky 1998b: 80; Spellman 1985: vii), which led to the generalized characterization of improvisation as ‘wild’ and other, individualistic and revolutionary, in society. As George Lewis (2004b) explains: ‘Bebop’s challenge to the dominant culture was not limited to musical concerns; in fact, bebop musicians challenged traditional notions of intra- and extramusicality’ (135). Bebop musicians, in other words, not only radically redefined ‘African-American improvisative musicality’ (135); they directly challenged, by extension, ‘the entire social order’ (135). Accordingly, the broader social significance of improvisation, brought to the fore with the advent of bebop, is as important to this study of law and justice as the music itself.¹⁵

Following on from the above, the conception of law proffered in this book – as that which is fundamentally improvisational in nature – rests on four basic premises. First, improvisation and law share the same ‘structural tension’ (Landgraf 2011: 25) in that their meaning rests on the aporetic¹⁶ relation between singularity and generality, repetition and alteration:¹⁷ ‘singularity, originality, or immediacy are already tied to repetition’ (4), just as generality, stability and predictability involve constant alteration. Outside this relation, ‘these notions cannot be communicated, understood, or even recognized’ (4). This shared tension, this ‘law of the singular event’ (Derrida 2004b: 8), is what I am calling here ‘the law of the extempore’.

To aid comprehension in this regard, the spectral guidance of Jacques Derrida is required. Attempts to summarize deconstructive¹⁸ ‘theory’ or the Derridean ‘method’¹⁹ inevitably run the risk of ‘simplifying the complexity of Derrida’s thought’ (Beardsworth 1996: xv). Nonetheless, they are essential to understanding deconstruction’s critique of traditional metaphysics as that which privileges presence over absence in its ‘desire for fully constituted meaning and grounds’ (McNeill and Feldman 1998: 354). My intention here is not to detail fully, if such were possible, Derrida’s project. Instead, I will focus solely on a few concepts that are particularly relevant to a deconstructive reading of the singular and the general.

First, communication begins, as Derrida does (Bennington 1993: 24), with the ‘sign’, as that which must not only represent a thing in its singularity (‘signifier’) – this book, for example – but also the ‘concept’ of a book in general (‘signified’). Without this ‘unity’ between the ‘word’ and the ‘thing’, ‘the whole of language would be reduced to a list of proper names of things, and would not in fact be a language’ (25). Every sign, in other words, be it written or spoken, ‘must be repeatable’ (58): ‘a “sign” which was essentially singular and which could be used only once would not be a sign’ (58). While singularity does in a sense exist–‘what is said is said once, here and now, in such and such a place, at such and such a date’ (59) – these ‘“once only” events of speech’ (59) are only made possible through ‘iterability’ or repetition and alteration, as Derrida reveals:

... as soon as there is a mark, that is, the possibility of repetition, as soon as there is language, generality has entered the scene and the idiom c...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• 1 Introduction: the law of the extempore
• 2 The rise and reform of the New York City cabaret laws
• 3 Deconstructive legal improvisation
• 4 The 'wildness' of jazz improvisation
• 5 Demystifying improvisation
• 6 The structure—freedom paradox in law
• 7 Justice as improvisation
• Notes
• Bibliography
• Index