1 Introduction
Improvising with Peter, I listen, I write, I listen again. From the stereo system sounds an audio recording of South African musician and activist Hugh Masekela's guest appearance on BBC Radio 4's Desert Island Discs on 11 July 2004.Footnote 1 The music of Billie Holiday, Louis Armstrong, Dizzy Gillespie and Miles Davis fills the room. My heart grows heavy: this cassette tape was given to me by Peter Fitzpatrick and his wife, Shelby. I was writing my PhD thesis with Peter at the time on Derrida, law, race and jazz, and they thought I might find it interesting. That was Peter for you.
The 16-year-old+ cassette tape provides a fortuitous entry into my remembrance of the uniqueness and significance of legal theorist Peter Fitzpatrick, both as a scholar and as a person, in relation to my own work and that of so many others. Hugh Masekela, like Peter, was an ‘original’. Along with saxophonist Kippie Moeketsi and pianist Abdullah Ibrahimand (Dollar Brand),Footnote 2 Masekela formed the Jazz Epistles in 1960 (Jazz Epistle, Volume 1, Gallo) and cut the first LP of modern African jazz in South Africa. As Black musicians, the Jazz Epistles were only able to record one session together before the South Africa's apartheid government forced them into exile. This recording, of which only 500 copies were printed, was almost lost forever (Rentner, Reference Rentner2017).Footnote 3 The tracks are marked by ‘challenging improvisation’ – a cross between South African mbaqanga Footnote 4 and American bebop Footnote 5 (Ansell, Reference Ansell2018). Writes Giovanni Russonello of The New York Times: ‘With a heavy, driving pulse and warm, arcing melodies, their music was distinctly South African, even as its swing rhythms and flittering improvisations reflected affinities with American jazz.’Footnote 6
This music takes me back to Peter, not just because of the recently rediscovered cassette tape on which it is recorded, or Peter's legacy of scholarship (and activism) on issues of race/colonialism and law, including writings on Nelson Mandela and South African apartheid (Fitzpatrick, Reference Fitzpatrick2004; Reference Fitzpatrick2005a; Reference Fitzpatrick2005b). It is actually the reference to Masekela's bebop improvisation that triggers reminiscences of my PhD days, studying under Peter's guidance at Birkbeck School of Law in London, England.
2 Improvisation and law
Like many, when I first started reflecting on the relationship between musical improvisation and law, I thought them to be odd bedfellows. Ought not law eschew all spontaneous or unpredictable elements – be stable, predictable and apply equally to all persons? This can be starkly contrasted to the prevailing perception of jazz or musical improvisationFootnote 7 as that which is founded almost solely upon spontaneous invention or creation. Both conceptions, when read through Peter Fitzpatrick's scholarship, are ultimately found wanting, as will be detailed below.
As is the case for many PhD candidates, when I first arrived in London, I had my case-study but not a suitable theoretical framework in which to analyse it. The object of my inquiry, which I had first encountered while writing my LLM thesis at the University of British Columbia in Canada, were the New York City (NYC) cabaret laws,Footnote 8 which policed, among others, jazz musicians working in NYC clubs in the 1940–60s. These performers were required by law to hold a valid NYC Cabaret Employee's Identification Card in order to work in a licensed establishment. Of particular interest to me was the temporal connection between the introduction of these so-called ‘police cards’ and the emergence of a new and supposedly ‘wild’, improvisatory brand of jazz, namely bebop, in Harlem after-hours night clubs. And legendary musicians such as Charlie Parker, Thelonious Monk, Billie Holiday and Bud Powell were but a few of the artists who were deeply tormented by these laws.
Relying heavily on the writings of Peter Fitzpatrick, I sought to examine the positioning of the cabaret laws as determinate and general in opposition to a wildly singular improvisation. These laws, though, were not beyond dispute or challenge, thereby indicating that the dichotomy between law and improvisation can never be purely settled or determined. My doctorate thesis, and the monograph that followed (Ramshaw, Reference Ramshaw2013), proffered a conception of law as fundamentally improvisational in nature, based on four key premises: (1) improvisation and law share the same ‘structural tension’ (Landgraf, Reference Landgraf2011, p. 25) in that their meaning rests on the aporeticFootnote 9 relation between singularity (responsiveness) and generality (determinacy); (2) conventional definitions of law render invisible or ignore its singular or unpredictable elements; (3) the singular must be reclaimed in and for law; such that (4) the creative potential of justice as improvisation can be embraced; improvisation, in other words, must be looked to as a model for social change with a view to shaping legal, political, cultural and ethical dialogue and action (Ramshaw, Reference Ramshaw2013).
Herein lies the significance of Peter Fitzpatrick's scholarship to my own work.
3 Law beyond positivism
Fitzpatrick's conception of modern law as both ‘responsive’ and ‘determinate’ (see below) borrows heavily from, but also goes beyond, Derrida's offering of justice as deconstruction (Derrida, Reference Derrida and Anidjar2002, p. 243). As Margaret Davies explains:
‘Justice is the relationship to the other which cannot be determined or simply mediated by the construct of law, but which reaches out to the other through an experience of the failure, instability, inadequacy, and unfoundedness of law. Deconstruction is an intervention in the law which reveals both the embeddedness of otherness within the law and the impossibility of purity. Deconstruction and justice are impossible, but necessary.’ (Davies, Reference Davies and Pierre2009, p. 232)
Derrida has been criticised for his positivistic conception of law: ‘when Derrida does focus upon the institutional law, he takes as his point of departure the positivist view, which states essentially that law is separate or separable from its “other,” non-law’ (Davies, Reference Davies and Pierre2009, p. 72, emphasis in original). While Derrida's emphasis on the traditional (positivist) concept of ‘law’, particularly in ‘Force of Law’, does not detract from his ‘interrogation of the conceptual frontiers of the idea of law’ (Derrida, Reference Derrida and Anidjar2002, p. 72), Fitzpatrick adds to Derrida's discussion of law and justice a more complex and critical conception of modern law beyond positivism.
For Derrida, law is necessary for justice: ‘No justice is exercised, no justice is rendered, no justice becomes effective nor does it determine itself in the form of law, without a decision that cuts and divides’ (Derrida, Reference Derrida and Anidjar2002, p. 252). Yet, as Fitzpatrick makes evident, so too is justice, as the ‘undecideable’ (p. 253), ‘necessary for law’ (Fitzpatrick, Reference Fitzpatrick2005a, p. 4). Law, writes Fitzpatrick, ‘cannot be … enduringly ordered and predictable’ (2005a, p. 8). If it were, ‘there could be no call for decision, for determination, for law’ (Fitzpatrick, Reference Fitzpatrick2005a, p. 9). Instead, for law to endure, it requires a simultaneous ‘responsiveness’, an ‘attunement and attentiveness to what is beyond’ (Fitzpatrick, Reference Fitzpatrick2005a, p. 9). Law, he argues, must be able to ‘change and adapt to such other things as “society”, or “history”’ (Fitzpatrick, Reference Fitzpatrick2005a, p. 9; see also Fitzpatrick, Reference Fitzpatrick, Sarat and Scheingold2005c, p. 464). And this responsiveness to the other of law is ‘essential for law’ (Fitzpatrick, Reference Fitzpatrick2005a, p. 9, emphasis added). As Fitzpatrick notes, ‘[i]f law did not have its responsive dimension, we would not be able to speak of how law adapts over time to suit new circumstances’ (Fitzpatrick, Reference Fitzpatrick2005b, p. 4).
4 Fitzpatrick's enduring legacy: justice as improvisation
Applying Fitzpatrick's determinate/responsiveness ‘model’ to my own writings on law and improvisation, we find that the aporetic relation between the determinative (generality) and responsive (singularity) requires, borrowing from Fitzpatrick in another context, ‘some subsisting relation and thence some commonality’ between the responsiveness that is privileged in musical improvisation and the determinacy deemed essential to modern law (Fitzpatrick, Reference Fitzpatrick2001, p. 59). Law cannot subsist without improvisation's responsive ‘opening onto all that lies beyond’, just as musical improvisation requires some determinacy in order to endure as a ‘contained, distinct’ entity (Fitzpatrick, Reference Fitzpatrick2001, p. 59). In the words of bassist Charles Mingus, ‘You gotta improvise on somethin’ (quoted in Kernfeld, Reference Kernfeld1995, p. 119, emphasis added). To do otherwise would make its recognition as improvisation impossible.
It is therefore the ‘necessity yet impossibility’ (Fitzpatrick, Reference Fitzpatrick, Sarat and Scheingold2005c, p. 464) of both pure determinacy (law) and pure responsiveness (musical improvisation) that ‘iteratively impel[s]’ both ‘into existence’ (p. 464). The ‘originary repetition’ (quoted in Beardsworth, Reference Beardsworth1996, p. 32) of improvisation becomes its law (pp. 32, 35) and without such improvisation could not exist. While improvised music, such as Masekela's bebop jazz, may at times reach out ‘towards the unknown’ (quoted in Bailey, Reference Bailey1992, p. 54), it always finds its vertical limit at the ‘horizon of law’ (Fitzpatrick, Reference Fitzpatrick2003, p. 58). Moreover, improvised music needs this limit, needs law, in order to remain inventive. For, ‘[w]ithout a limit, there can be no relation to the other’ (Fitzpatrick, Reference Fitzpatrick2001, p. 76) and, without the other, there would be no hope, no chance of transformation or change. Thus, for me, Fitzpatrick's greatest contribution is his reclaiming of the wildly singular as necessary for modern law (Fitzpatrick, Reference Fitzpatrick2003; Reference Fitzpatrick2013). This openly responsive dimension, in both law and improvisation, while never complete or absolute, glances towards the singular other and keeps alive the possibility of creativity, ethics and justice in society.
Conflicts of Interest
None
Acknowledgements
Much gratitude to Kristen Lewis and Émile Fromet de Rosnay for their comments on earlier drafts. And to the guest editors, David Sugarman and Abdul Paliwala, for inviting me to contribute to this wonderful Special Issue on the life and work of Peter Fitzpatrick.
