Soothing The Savage Beast

Soothing The Savage Beastⁱ

One of my wife's favorite compositions is “Symphonie sur un chant montagnard français,” (Symphony on a French Mountain Air). It was written in 1886 and was Vincent d'Indy's, best known work, his Opus 25. Also known as the “Symphonie cévencole,” it was named after the Cévennes Mountains in southern France. The chant montagnard français is a lovely melody, a folk song d'Indy heard while at Périer, overlooking the mountains. The entire piece lasts just under thirty minutes.

Just about the same length is a work by another of her favorite composers, Johannes Brahms. That work is his Opus 24, “Variations and Fugue on a Theme by Handel,” which he wrote a quarter of a century earlier. This particular composition is considered by some to be one of the finest sets of variations ever written.

What's interesting about these two works is that both rely on a prior musical idea.ⁱⁱ Put otherwise – more starkly, perhaps – they represent a form of plagiarism. In each case the theme used was very old – out of copyright in current terminology – but, in a sense, these were stolen ideas.ⁱⁱⁱ We don't view them that way, however it isn't clear to me why that's the case. Perhaps it's the copyright itself – however that is human law, and doesn't really tell us what is “right” and “wrong.”^iv

More and more we read about authors who have appropriated, without attribution, passages from other works. It's plagiarism as well, and, once discovered, it's scorned by all. That's an easy one. In principle, the distinction between that and a theme and variations seems less clear though. If the use of “stolen” goods, and the benefit from them, is “wrong,” what's the difference between these two situations? It can't be the age of the stolen material.

The bigger question – the one that governs this and numerous other issues – relates to the ethics of benefiting from any crime. Perhaps the other end of the spectrum that begins with variations on a folk song is the use of information that the Nazis gained during their infamous experiments. While current research facilities use ethics committees to help investigators avoid going off track, ethics was not a consideration for the Nazis. But are we justified in ignoring the results of their work, criminal as it might have been, if it can help someone now? How is the use of that information different from the transplanting of organs harvested from someone murdered in a robbery?^v

There is a concept in law which deals with the “fruit of the poisoned tree.” If information is obtained in a forbidden manner, anything derived from it is also illegal and inadmissible for use in a prosecution. Law enforcement, therefore, cannot benefit from the crime of gathering intelligence illegally. They won't be able to use it in court. And if leads were obtained from it, they'll be off limits as well. But a similar question is whether we should we listen to the “whistle-blower” who has pledged confidentiality to his employer. In reality the two situations have something in common. Both use nominally protected information. In both cases, notwithstanding any self-serving justifications, an individual tried to benefit from questionably gathered knowledge.

And there are numerous other examples of the same problem – the benefiting from a proscribed action. Can you torture one person to prevent harm to another?^vi Can you monitor “free speech” in order to gather information about planned crimes? What are the ethics of spying? Of “sting” operations? Is it justified to offer a reward or a bounty, since this will wind up with someone benefiting from the fact that a crime was committed? Is the lawyer who defends the criminal benefiting from the crime? Can the lawyer – or the criminal for that matter – gain by telling the story of the crime? And if the criminal has stolen something but has been found “not guilty,”^vii is he entitled to keep the booty?

What do you do about situations in which you're willing to reward the criminal? Gilad Shalit, a kidnap victim, was returned to Israel at the cost of over a thousand Palestinians who had had been convicted of committing crimes. An individual or a company may be willing to pay a ransom to obtain the return of the victim of a kidnaping. An insurance company may give a reward for the return of an item, “no questions asked.” And otherwise honest citizens are often willing to buy items that “fell from a truck” if the price is right. Not to mention, of course, when municipalities "buy" illegal guns to get them off the streets.

There are other situations, equally questionable from a moral point of view, but which don't seem to be of as great concern to the public – possibly because most of us can't relate to them,^viii but there are also those which are easily forgiven. If, for example, someone who gained some money illegally (perhaps by insider trading) gives that money to a charity desperately in need of funds, should the charity^ix,x and those it serves be penalized by a requirement to repay the donation? Should an antiquity or piece of art, obtained long before by unsavory means, that has been on display in a museum for a while – one obtained by the museum unknowingly and by legal means – be taken away? How shall we deal with a “legitimate” business, one providing numerous well-paying jobs, which is owned by a racketeer?

And there are questions for which, despite legislation, we have no satisfactory answers. At what point should a clergyman, a lawyer, a doctor, or a journalist have to reveal information relating to a crime? Should the criminal benefit from confidentiality? How shall we deal with “crimes” like prostitution, adultery, overcharging, the copying of products, and similar ones in which people benefit what many view as immoral acts?

These are some of the situations in which a crime^xi occurs and someone benefits. Where do we draw the line? No one has a problem with the folk song, but the prohibition of using illegally obtained intelligence is well established in law.^xii Many would argue that somewhere in between, along the “slippery slope” that separates them, though, that line must exist. Unfortunately they would all put it in different places. Shall we be absolutists like the ACLU, or practical people who do “what seems right at the time?” Where does intent fit in? Does it matter whether it's the criminal or someone else who benefits? Does it matter who that “someone else” is? And who decides where the line is and what's right and what's wrong?

Not all questions have answers. And not all answers are correct. I'm not an absolutist. I think there's a line, even if my location may differ from yours. I can live with that. Justice Potter Stewart said of pornography, “I can’t define it, but I know it when I see it.” It's not a very precise answer to the question, but it may be all we have in some circumstances.

As with beautiful music, we play some things by ear.

Next episode: “Morning Is Dawning” – What time does class start?

i    Yes, I know it's “breast,” but this seemed more appropriate since it extends well beyond music. We wrestle with the beast of conflicting values every day. And that's the real subject of today's essay.

ii    Actually the use of folk themes is common in classical music, as is the use of earlier themes.

iii    The same is true of music that is not “classical,” although it may be similarly be based on formal rules. “Popular” music may be derivative of classical themes, and a jazz performance may include bits and pieces of many melodies.

iv    My grandson told me that “Maoz Tsur,” a Hanukkah song, fit perfectly to the music of “Edelweiss.” He was right, but because it was protected by copyright, we couldn't do much with his insight.

v     Actually, the use of Nazi information, however inexcusably obtained, may be more justified ethically. It can be argued that although the information was obtained during a horrible sadistic exercise, the goal in some instances was to gain knowledge, even if the science was bad. In the case of the murder, however, there was no “worthy” goal. I doubt, though, that someone who needs a heart would quibble.

vi    The “ticking bomb,” who has information about a terrorist plot or the planned murder of many, is only one example of this phenomenon. But it raises the questions of torture and crime prevention. Can we benefit from the crime of torture, or is it proscribed irrespective of the justification offered? Must we let people die and then prosecute the murderer?

vii    Or if he has served his time for the crime, or if the statute of limitations has expired.

viii   Like industrial espionage leading to the introduction of new products, competition, and lower prices for the consumer.

ix    And those who might be helped by it.

x     Contributions may be given as well to political parties or candidates, and they may be accepted in good faith.

xi    Or an act which some view as a crime.

xii    Though many question it.