For helpful discussions and comments I am indebted to professors Markus Rathey of Yale University and Stefan Vogenauer of Oxford University. I am extremely grateful to professors Joseph H.H. Weiler and Moshe Halbertal and to the NYU School of Law, where this essay was researched and composed, for their gracious hospitality, support and rigorous criticism. I thank Anne Dienelt for going over translations from German. All remaining errors are of course mine. Documentary research was carried out with the assistance of the Bach Archive, Leipzig.

1. Moses, Itamar, Bach at Leipzig (New York: Samuel French, 2008) at 103.Google Scholar

2. A contemporary newspaper, the Hamburg Staats und Gelehrte Zeitung of May 29, 1723, reports from Leipzig: “This past Saturday at noon, four wagons loaded with household goods arrived here from Cöthen; they belonged to the former Princely Music Director there, now called to Leipzig as Cantor Figuralis. He himself arrived with his family on 2 carriages at 2 o’clock and moved into his newly renovated residence in the Thomas School.” David, Hans T, Mendel, Arthur & Wolff, Christoph, eds, The New Bach Reader (New York: WW Norton, 1998) 102 Google Scholar [NBR; references are to item number, not page number].

3. Letter to Erdmann, Georg, 1730, NBR 152.Google Scholar

4. Ibid. In fact—which is sometimes overlooked—Bach was not, ultimately, obliged to leave Anhalt-Köthen. Four days before he left the princely winds changed and he was offered to remain there after all. By then preparations were made, inertia was set and the Bach family moved on. The princess, who died soon thereafter, in fact did keep musical notes among her personal belongings. She liked military things and Bach’s introspective work may simply not have been much to her taste.

5. Ibid.

6. Graupner was unable to free himself from his bond to the Landgrave of Hesse, whom he served as Kapellmeister in Darmstadt—reminiscent of Bach’s own difficulties in obtaining release from his position in Weimar, , earlier in his career. Minutes of the Leipzig City Council of April 9, 1723, NBR 94.Google Scholar

7. With one brief exception: earlier in his career, Bach served as organist for the imperial free city of Mühlhausen. He was 22 at the time and quit after nine months. It was in Mühlhausen that he wrote his first cantata (BWV 71), the only one published in his lifetime. The cantata’s title page is a fascinating document: glorifying the councilmen who commissioned it in boldface, it features Bach’s name, in much smaller typeset, at the very bottom. NBR 27.

8. NBR 68.

9. Sir Maine, Henry, Ancient Law. Its Connection with the Early History of Society, and its Relation to Modern Ideas (London: John Murray, 1861) at 170.Google Scholar

10. Ibid.

11. See, generally, Atiyah, PS, The Rise and Fall of the Freedom of Contract (Oxford: Clarendon Press, 1979).Google Scholar

12. Indeed, as classical contract gradually made way for other forms of regulation in capitalistic societies (as the title of Atiyah’s monumental book catches and indeed exaggerates), critical works show status to be prevalent, or re-relevant, as contract has mutated into new forms of regulating relations both in the public and private spheres in industrial and postindustrial societies.

13. However, according to James Gordley, contract as a main principle of social control owes much more to scholastic theories of natural law than to the rising of utilitarian liberalism. My claim, to clarify, is not causal: liberalism may have found in contract an almost-perfect complement technology, even if the emergence of the latter was ideologically and intellectually independent. This is of course not the place to discuss these claims in detail. See Gordley, James, The Philosophical Origins of Modern Contract Doctrine (Oxford: Clarendon Press, 1991).Google Scholar

14. Letter to Erdmann, supra note 3. I have substituted “as” for “so” in the BNR translation; see infra note 23.

15. Ibid. Those were what George Brassens, two and a half centuries later, called les funereilles d’antan: the funerals of yore, during which the wealthy burghers of Leipzig were set to rest amid as much solemnity and pomp as pious showing-off would allow.

16. Letter to Erdmann, supra note 3.

17. Wolff, Christoph, Johann Sebastian Bach: The Learned Musician (New York: WW Norton, 2000) at 371.Google Scholar For the political framework within which Bach operated see Rich, Norman, “The Historical Setting: Politics and Patronage” in Erickson, Raymond, ed, The Worlds of Johann Sebastian Bach (New York: Amadeus, 2009) at 67.Google Scholar

18. See, e.g., NBR 197, 198, 216, 235, 255.

19. See, e.g., NBR 180-186, 192-196. These quarrels were not due to a lack of formal regulation: the Ordnungen und Gesetze, or Rules and Ordinances of the Thomasschule (set by the city council itself) held 83 detailed sections, conveniently divided into twelve parts. Schulze, Hans Joachim, ed, Die Thomasschule Leipzig zur Zeit Johann Sebastian Bachs Ordnungen und Gesetze 1634, 1723, 1733 Google Scholar(Leipzig, 1987); an English translation of the 1733 revision, by Thomas Braatz, is available online at http://www.bach-cantatas.com/Articles/Ordnung1733Translation.pdf.

20. See Bach’s detailed letters of complaint addressed to no less than the instance of last resort, King Augustus II (“The Strong”) who, as Elector of Saxony, was Leipzig’s political sovereign. NBR 119.

21. Bach never had enough competent singers at his disposal, and instrumentalists were a motley crew of Thomasschule alumni, amateurs and a few professionals. On August 23, 1730, he wrote a detailed report, “Short but Most Necessary Draft for a Well Appointed Church Music,” to the city council, providing a vivid picture of the musical organization of the several choirs he oversaw for the city’s Hauptkirchen and bemoaning the wanting level of available musical talent, NBR 151. Consulting reports by contemporary visitors, Terry concludes that due to harsh conditions of performance and lacking talent, “we can be sure [Bach] never heard his cantatas rendered with even approximate excellence.” Terry, Charles S, Bach: The Historical Approach (Oxford: Oxford University Press, 1930) at 93–94.Google Scholar

22. As mentioned above, Bach continually sought—and by 1733 finally obtained—a commission as a “royal composer” to the elector of Saxony (who, in his person, was also king of Poland). That had some political and professional significance, yet did not substitute for his contractual job.

23. NBR 100. In a few places my translation varies slightly from the NBR’s, with no great consequence. E.g.: “Schülern,” (Art 8) simply means “students,” not “scholars;” “Hochweiser” in the preamble is better rendered as “noble and most wise” rather than “honorable etc.;” “Behutsamkeit” (Art 9) is better captured here by “gentleness” than by “caution,” and “regierenden” (Art 12) means “ruling” or “reigning” or even “presiding,” but not “honorable.” The original German text is included in Neumann, Werner and Schulze, Hans-Joachim, eds, Bach-Dokumente, vol 1, 177–78 Google Scholar (Leipzig and Kassel, 1963).

24. For an excellent general introduction see Gordon, Robert, “Macaulay, Macneil and the Discovery of Solidarity and Power in Contract Law” (1985) Wis L Rev 565.Google Scholar

25. Macaulay, Stewart, “An Empirical View of Contract” (1985) Wis L Rev 465 Google Scholar and also, “Elegant Models, Empirical Pictures, and the Complexities of Contract” (1977) 11 Law & Society Rev 507.

26. Macneil, Ian, The New Social Contract: An Inquiry into Modern Contractual Relations (New Haven: Yale University Press, 1980).Google Scholar More concise and perhaps clearer expositions of the relational critique of the neo-classical model of contract law is offered in Macneil, Ian, “Economic Analysis of Contractual Relations: Its Shortfalls and the Need for a ‘Rich’ Classificatory Apparatus” (1981) 75 Nw UL Rev 1018 Google Scholar and also, “Contracts: Adjustment of Long-Term Economic Relations under Classical, Neoclassical, and Relational Contract Law” (1978) 72 Nw UL Rev 854.

27. An obvious example is a parol evidence rule (PER). For a relatively liberal example of a PER (in relation to traditional common law rules, at least) see UCC §2-202 (2002). For a general comparative review of the parameters of “classical” exclusionary formalism and inclusive relationalism (the theoretical basis for the abbreviated analysis offered above) see Yovel, Jonathan, “Relational Formalism and the Construction of Financial Instruments” (2011) 48 Am Bus LJ 371 at 371-80.Google Scholar Excellent sources are Pildes, Richard H, “Forms of Formalism” (1999) 66 U Chicago L Rev 607 Google Scholar, Kennedy, Duncan, “Legal Formalism” in International Encyclopedia of the Social & Behavioral Sciences vol 13 Google Scholar, Smelser, NJ et al, eds (Oxford: Pergamon, 2001) at 8634 Google Scholar, and Kronman, Anthony T, “Jurisprudential Responses to Legal Realism” (1988) 73 Cornell L Rev 335.Google Scholar

28. This claim is made in some detail in Yovel, Jonathan, “Legal Formalism, Institutional Norms and the Morality of Basketball” (2008) 8 Va J Sports & L 33.Google Scholar

29. Letter to Erdmann, supra note 3.

30. For some elaboration see infra text relating to notes 37, 38, 39.

31. See Atiyah, supra note 11. Working in Bentham’s shadow and lacking the latter’s rhetorical prowess, Austin is sometimes neglected as a radical precursor of legal positivism. See Austin, John, The Province of Jurisprudence Determined (London: John Murray, 1832).Google Scholar

32. Godley, James, “Ius Quaerens Intellectum: The Method of the Medieval Civilians” in Cairns, John W & Plessis, Paul J du, eds, The Creation of the Ius Commune: From Casus to Regula (Edinburgh: Edinburgh University Press, 2010) 77 at 97.Google Scholar

33. Gordley, supra note 13 at 52-58. There are several sources discussing the late scholastic synthesis in contract law between Aristotelianism and Roman law; for a concise, contextual discussion see Gordley, James, “Some perennial problems” in Gordley, James, ed, The Enforceability of Promises in European Contract Law (Cambridge: Cambridge University Press, 2001) at 1.CrossRefGoogle Scholar

34. From a text by Baldus, quoted in Gordley, supra note 13 at 55.

35. St Thomas Aquinas, Summa Theologica I-II, 6.a.3.

36. Ibid at II-II, 88.a.10 and 89.a.9.

37. Gordley, supra note 13 at 65.

38. Ibid at 132.

39. Ibid. See also Gordley, James, “Contract in Pre-Commercial Societies and in Western History” International Encyclopedia of Comparative Law (Tübingen: JCB Mohr, 1997) vol VII, ch 2 at 7.Google Scholar

40. Here I apply the well-known analysis of in personam normative relations churned by Hohfeld, Wesley, Fundamental Legal Conceptions as Applied in Juridical Reasoning (New Haven: Yale University Press, 1964 [1919]).Google Scholar

41. Austin, JL, How To Do Things With Words (Oxford: Clarendon Press, 1962; Cambridge: Harvard University Press, 1962).Google Scholar

42. Citing literature for this critical position can run miles; an obvious starting point and standalone is Kennedy, Duncan, “Form and Substance in Private Law Adjudication” (1976) 89 Harv L Rev 1685.CrossRefGoogle Scholar

43. For the concept of inalienability as a legal relation see Calabresi, Guido and Melamed, Douglas, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral” (1972) 85 Harv L Rev 1089.CrossRefGoogle Scholar

44. Summers, Robert S, “The General Duty of Good Faith—Its Recognition and Conceptualization” (1982) 67 Cornell L Rev 810.Google Scholar For European and historical perspectives see the unparalleled work by Zimmermann, Reinhard & Whittaker, Simon, eds, Good Faith in European Contract Law (Cambridge: Cambridge University Press, 2000).Google Scholar

45. For a fuller account of Bach’s business concerns see Wolff, Christoph, “Bach in Leipzig” in Erickson, Raymond, ed, The Worlds of Johann Sebastian Bach (New York: Amadeus Press, 2009) 265 at 280-81.Google Scholar

46. Supra note 21 at 83.

47. A typical reprimand by the city council for such actions appears in excerpts from the minutes of the council meetings, NBR 150.

48. However, Bach never journeyed out of Germany and, it seems, never been further than 200 miles away from his birthplace in Eisenach, Thuringia.