Pleading Note – Raad van State

Lawsuits

In early January 2013, I requested the Fonds Podiumkunsten (Dutch Performing Arts Fund) to return my scores that it held in its possession. On January 28, I received a letter from George Lawson, the director and chairman of the board of the Fonds Podiumkunsten, stating that they could not comply with my request due to Article 1 of the 1995 Archive Act. Of course, I had expected this response. Now I had to take one more step to reach the administrative court: submitting a notice of objection to the fund. Only if that too was rejected could I proceed to court. On January 28, 2013, I filed a pro forma objection against the fund’s decision, and on March 21, I sent further arguments. On April 2, I received a letter inviting me to a hearing; it was scheduled for April 28. On May 22, I received the decision and reasoning from the objection committee, which, as I had hoped and expected, was negative – the fund declared my request ‘inadmissible’. Now I could finally move on to the real task, involving the court – the second legal step. On June 25, 2013, I submitted a pro forma appeal to the administrative court in The Hague, and a month later, on July 22, I submitted the substantive arguments. The fund responded with a ‘defense statement’ on September 2, and I replied on September 11 with a comment and summary entitled The Essence of the Matter. The hearing followed on September 26, and on October 23, 2013, my appeal was declared ‘unfounded’. All of this was still according to plan.

(In the meantime, I had noticed from the court documents that the Fonds Podiumkunsten was still formally called “Dutch Fund for Performing Arts+”. The tiny plus sign represented the composers, a token gesture meant to placate us during our efforts to create an adequate subsidy structure for composers and ensembles. Less than a year later, the plus sign was removed, a large part of the contemporary music ensembles was dismissed, and most funding opportunities for composers were abolished. The ‘name change’ was for show.)

On November 15, the Association of Art, Culture, and Law organized a congress at the Rijksmuseum with the theme The Rebellious Artist. Several renowned lawyers and professors would speak and debate about my legal quest. I spoke about my intention to obtain a ruling on the concept of a ‘score’. This helped to support my argument for the appeal to the Raad van State [Council of State].

This step, the appeal to the Raad van State was my ultimate goal. The same procedure applied: pro forma appeal [December 2, 2013], further substantive arguments [December 27], defense statement from the fund [February 26, 2014], my response [April 30], and the hearing on May 20, 2014. Indeed, the ruling turned out to be an almost literal repetition of the previous administrative court’s decision.

Thus, the hearing had taken place. I had the entire hearing secretly recorded. I had written a pleading note, a text that may be presented at the start of the hearing without prior consultation with the judges or the defense, provided it does not last longer than about five minutes. My pleading note was a score, entitled Homo Sacer.

The beginning of the pleading note is a description and explanation of the ‘performance score,’ a clarification that is customary in contemporary score-making practice. Here, I explain the paradox of the Archive Act. The performance score is a paradox. This pleading note, as prescribed by the Archive Act, would be included in the National Archives, just like my scores that the fund holds in its possession. This leads to the following paradox: performing the composition involves removing the score from the archive and then burning it according to a precisely defined ritual. The result is that there are two options: the composition is performed, in which case the score disappears; or the composition is never performed, and the score remains in the Archive.

The three judges did not respond at all to my pleading note. They listened in silence, unmoved. At one point, when I brought up the paradox, one of the judges said, “Yes, perhaps a paradox, but may I ask a question first…” The discussion then shifted to something else. I explained once again that there is a difference between a score and a painting; the latter is a material object that can be important for heritage, while the score – as an integral part of musical practice – is not, any more than the music stand is. Then another judge asked, “So it’s comparable to sketches Rembrandt makes for a painting?” It was disheartening. The comment on the ruling from my advising professor: “They did nothing to be convincing, they just spooned within their own framework.” Objectwise disinterest.

I recorded my presentation of the pleading note on video. I received permission for this. The pleading note itself is now ticking like a little time bomb in the National Archives, waiting for a performance… (This score is reminiscent of ‘The Eight Labiles’ by Dick Raaijmakers. These are enormous, mostly vertical, hanging objects made of large, thick glass plates, each equipped with a large red safety lever, comparable to an emergency brake in a tram or train. When the lever is pulled, the entire glass structure collapses irreparably; or at least, that is the suggestion.)

The Archive Act only deals with objects; intangible heritage plays no role in it – it simply does not exist. The judiciary failed to consider this; neither the administrative court nor the Council of State addressed this omission in any way. The fact that a score is an artistic, organic principle, that it is part of a living musical practice, that it is ultimately no more than a tool to achieve a performance… at no point did this penetrate. It is too sad for words. The legal system has thus proven to be an apparatus that lacks any interest in the subject-oriented essence of the law; the only concern is its preservation, not its organic development, not what the living essence should be. There is much mistrust of the law, not only from the far right but also from the camp of critical stakeholders. This is because the practice of law is object-oriented rather than subject-oriented. A professor once told me that all lawyers are extremely conservative, fearful of fundamental change.

Homo Sacer – Cornelis de Bondt

[20 mei 2014] │ RvS: 201310961/1/A3

Souverän ist, wer über den Ausnahmezustand entscheidet.
[Sovereign is he who decides on the state of exception.]
Carl Schmitt, Politische Theologie [München, Leipzig – 1934]
If today there is no longer any one clear figure of the sacred man, it is perhaps because we
are all virtually homines sacri.
Giorgio Agamben, Homo Sacer [1995]

This text contains the score of my composition Homo Sacer. It is part of the argumentation for my appeal at the Council of State regarding the archiving of my scores, and thus also concerns the issue of musical heritage. This composition illustrates the paradox that is apparently embedded in the law. The paradox was already recognized at the beginning of the last century by legal philosopher Carl Schmitt in his theory of the ‘state of exception’. (Let us consider it a tragic coincidence that his theories were, at the same time, used as the foundation for the legal system of the Nazi regime.) The paradox of my scores can be broken if the Council follows my argumentation. It can also be maintained in the form of a composition that, from a legal perspective, is impossible to perform. Then there are two possibilities: the composition is performed, in which case the score disappears; or the composition is never performed, and the score remains in the Archive.

Homo Sacer – for one performer

Instrumentation

Two crotales – one high, one low.
The official copy of this score that is kept in the Rijksarchief [the Dutch National Archive].
One Zippo lighter.

Execution

Before taking the score, the performer hits the high crotale two times.
The performer takes the score out of the Archive.
Outside the Archive the performer hits the high crotale one time.
The performer sets the score on fire with the Zippo lighter. Once it is completely burned, he hits  the low crotale three times.

Notes

The score can obviously be performed only one time. A proper execution of the score can only  be done by following the score exactly. The performance can fail, but a failing performance is  at least a performance.
Replacing the score with another copy without permission of the composer will be regarded as a  fraudulent act, being a violation of my copyright.