Kevin Toh, University College London, is publishing Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation in Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy (Lisa Crawford, Patrick Emerton, & Dale Smith, eds., Oxford: Hart Publishing)(forthcoming). Here is the abstract.
This paper is an attempt to exploit a set of analogies between music and law. Both the originalist movement in law and the so-called period instrument movement in classical music gathered momentum in earnest in the late 1970’s and the early 1980’s. And both were reactions to earlier traditions of interpretation, in law and music respectively, the traditions that the partisans of the new movements deemed insufficiently faithful to the objects of interpretation. “Authenticity” is a term that musicians and critics often use to talk about the ideal of fidelity in musical performance. Importantly, what kinds of performances count as authentic depends on what properties are constitutive of musical works. The legal analogue of this relation, I believe, should help us to think carefully about originalism, which involves a particular way of conceiving the ideal of authenticity or fidelity in legal interpretation.Download the essay from SSRN at the link.