Law is, metaphorically speaking, a fugue.1Desmond Manderson has previously deployed the fugue metaphor to describe the mode with which he would present the aesthetic dimensions of law and justice. Here I am intensifying the metaphor in direct relation to the nature of law itself, see Desmond Manderson, Songs without Music: Aesthetic Dimensions of Law and Justice (Berkley: University of California Press, 2000). This metaphor is intended to compare law with the form, structure, and spirit of fugue, and by doing so to provide yet another way to (partially) reveal the nature of law.
The fugue is the highest point of contrapuntal development in Western tonal music. The word “contrapuntal” comes from contrapunctum, from which we also derive “counterpoint”, the art of overlaying independent melodic voices to generate polyphonic harmony. The most basic kind of counterpoint, which has been around since the 12th Century, is known as the “round”. A common example is when two or more voices sing Frère Jacques starting two bars apart:
The fugue takes this seemingly simple technique of counterpoint to the highest levels of complexity. The basic form of the fugue is the introduction of what is called the “subject” followed by its contrapuntal exposition in various voices and its subsequent musical development. Being easier to demonstrate than to describe, the following clip contains the subject of a Bach fugue (BWV 895, see score in title image) played on a virtual Clavinet.
In the first seven bars of the same piece, the subject is repeated or “imitated” in three different voices making this a four-voice fugue (1+3). The next clip plays the subject again but this time followed by its three imitations. Note that the imitations are not exact copies. They are played at different tonal registers and with small structural variations, but at all times they are clearly identifiable as imitations of the subject.
The final two recordings are of the relevant bars in their entirety. In the first of the two, you will hear pristinely the individual subject, its imitations, free voicings harmonising in counterpoint over the imitations, and an episode filling the gap:
The second is a “switched-on” indulgence with beats:
The rest of the piece carries on in this vein, the subject constantly recurring but never quite in the same way. This constantly “varying recurrence” that we appreciate in the changing registers and modifications of the subject and its imitations is intensified by the alternate voicings harmonising on top of them, creating complex contrapuntal variations all the way through to the piece’s nominal end. This leads me to draw out a first line of thought from the metaphor: the comparison of the fugal subject with the human subject.
There are many ways within poststructuralist theory to approach the question of subjectivity. A simple way for the purpose of exemplification is Julia Kristeva’s notion of the subject in process. For Kristeva (as for many others), the subject “I” is an unstable identity. It is in continuous flux, under constant tension, and in the process of being made. The subject subsists in what she calls an “open system” where the structure of the subject is open to other structures that permit the subject to permanently renew itself. This open system could also be seen in terms of a more radical thinking of community. For example, J-L Nancy has written in similar vein but different discursive register of “inoperativity” or being “unworked”. For Nancy, the inoperative community is an ontology of community independent of any striving towards artificial delineation, cultivation, or hypostatization. The essence of community is that which is in a state of constant tension and flux between inside and outside, between finitude and infinitude, between subjects with others.
It strikes me that the subject of the fugue mirrors this thinking very well: the fugal subject is itself in a state of flux, in the process of being iterated yet still identifiable (as if an ‘I’) through the whole piece. Moreover, its identity is challenged and modified by the multiple voicings harmonising in counterpoint. One could call such polyphonic counterpoint the open system of voicings or even the community of voicings. Both human and fugal subjects become or modulate into something other when with voices in community, all while retaining their identities. Both are subjects in process.
This is not all. The metaphor of the fugue brings more to this basic model of the subject in process. The fugal subject recurs; indeed it is recurrence that defines fugal form. The resonances here with what Nietzcshe indicates is his most important thought: that of the eternal recurrence or eternal return, are too obvious to miss. But rather than some bland cosmological explanation of infinitely recurring universes, the fugal metaphor can be seen more in line with ethical interpretations that focus on life affirmation and the avoidance of resentment. According to such interpretations, the challenge is to affirm life in its eternal identical recurrence. Emphasis here is on the recurrence of the same — of an identical recurrence. Yet fugues, as we have seen, do not recur in this way. A fugue is recurrence, but recurrence of that which is both the same subject (S) but also different (S+). To affirm life as if a fugal recurrence is to affirm not one particular occurrence of life but to affirm the generality of life in toto.
If recurrence is the form of fugue and counterpoint its method, then the spirit of fugue is where law comes in. The word fugue (fuga) comes from fugere meaning to flee, as well as fugare, meaning to pursue.2Johann Josef Fux, “Gradus ad Parsanum,” in The Study of Fugue, trans. Alfred Mann (New York: Dover Publications, 1987), 81. There is the pursuit of the subject, its identity and integrity, and at the same time there is a continual fleeing from it. There is a flux or “play” between the fixed canonical subject and the breaking of the canon that subverts the rules that first constituted it, an act of sublime beauty in self-sabotage. The late Baroque music theorist, Jean Phillipe Rameau, wrote that fugal art “cannot be reduced to rules” and that it is as much about defying rules as it is to follow principles.3Alfred Mann, The Study of Fugue (New York: Dover Publications, 1987), 52. Some say J S Bach, undeniably the greatest exponent of the fugue, should be avoided if you want to learn the “true” principles of the fugue. He was brilliant precisely because he broke the rules.
The spirit of fugue is fugare, the pursuit of the subject, and fugere, the flight from the subject. And in this simultaneous act of pursuit and flight, the subject eternally returns in the joyous affirmation of existence. Law is a fugue: it is both fugare, the pursuit of law, and fugere, the fleeing from law. This fleeing is not merely a choice to go against the law, but the law that constitutes itself by fleeing from itself, a flight that recalls justice as deconstruction. The eternal return, far from signifying the oppressive end of law, is the promise of law’s change and renewal, all while retaining its identity as law. The spirit of fugue provokes an appreciation of being at once free and unfree in the tension between fugare and fugere, subject and other, and by extension: law and justice.
https://birkbeck.academia.edu/GilbertLeung. All audio (except the audio in the video) produced by the author.
Thanks to Sara Ramshaw for encouraging me to to present a version of this paper at the Critical Legal Conference 2017, University of Warwick, UK.