Between Obligation, Freedom and Limitation: A Systems Theoretical Perspective of Improvisation in Law and Music
Seminar by Mark Hanna (PhD candidate, School of Law, Queen Mary University of London)
5 December 2014
2.30-3.30 pm, Sonic Lab
Sonic Arts Research Centre
ABSTRACT: This paper is divided into two parts. The first draws on Niklas Luhmann’s systems theory to show how law relies on improvisation to reproduce itself as a social system. It presents a circular relationship between jurisdiction and legislation, with courts occupying a central position in the legal system where they are charged with an obligation to decide all cases admitted before them. This obligation to decide is shown to be particularly acute in relation to ‘hard cases’, common in child protection law for example, where it is both difficult and risky to state who is in a legal position and who is in an illegal position. Yet, here too, courts must decide, and a theory of decision-making is employed to show how such decisions cannot be determined by the past but are only possible in the present. This type of decision-making in the present is linked to formulations of musical improvisation. The second part of the paper contrasts improvisation in law with that in music. It will be shown that law relies on organization to both limit the freedom to improvise, and to absorb the risk of such improvisation in a system that deals with grave social issues, such as child protection. This reliance on organization will be presented as reflecting a general trend in modern society towards ‘second order observation’, the observation of other observers. The trend is explained as a response to increasing societal complexity and risk, but it will be shown that relying on second order observation comes with its own risks. Finally, the paper will contrast this with the form of improvisation in music. Through an analysis of jazz improvisation, it will be shown that the relative lack of risk attending improvisation in this field results in less organization and greater freedom. With this, musical improvisation is characterised generally as a ‘first order observation’ based on the structure of music itself, rather than the observations of others. This is shown to have promoted a more functional form of improvisation. The point here is not to suggest that law could easily adopt this form of musical improvisation, but rather to suggest it as informing and developing acritical awareness of second order observation involved in the necessary improvisation in law.