Page 231 - Weiss, Jernej, ur./ed. 2023. Glasbena društva v dolgem 19. stoletju: med ljubiteljsko in profesionalno kulturo ▪︎ Music societies in the long 19th century: Between amateur and professional culture. Koper/Ljubljana: Založba Univerze na Primorskem in Festival Ljubljana. Studia musicologica Labacensia, 6
P. 231
the foundation of a free state is a free (music) association? continuity and change ...
Of course, it may well be, that even though the statistical overview
prides itself on being crafted upon the official data, the year 1702 could
merely have been adopted from both versions of the Statutes, that the Min-
istry of the Interior had received and granted in the previous decade, i. e.
from those from 1849 and from 1854. However, I would like to hypothesise
that if in the future, a similar official dossier for the Statutes from 1849 is
found as we now have it for the year 1854,44 there among the documents we
just might find a further clue as to why in 1849, after 45 years, the first Ar-
ticle had been altered.
In addition to what was said on the Philharmonic Society in Ljublja-
na, the first of its kind at the turn of the 18th century and on its self-percep-
tion projected to 1702, it is not too much of an exaggeration to say that its
Statutes from the decades, following the course of the 19th century, show its
diligent adaptation to the changing state regulation on associations. For my
second case, the Vienna Philharmonics en tant que association, which I am
about to present, this was certainly not so. What is more, as already intro-
duced with my second quotation, Clemens Hellsberg maintained that be-
fore 1908 the Vienna Philharmonic did not exist in any “juristisch existier-
ende form”. With that, I cannot readily agree.
Firstly, I would like to point out that the conviction among the gen-
eral public, that a “legal form” in order to exist, has to be given in advance
(i. e. be sanctioned by the state) and cannot – dogmatically – arise from
the legally relevant practice, is still to this day a child of the continental le-
gal development of the Enlightenment Era. It certainly does not exist in
the nature of the law per se. That view only really took deep roots after the
so called “codification revolution” at the turn of the 18th century. Then, the
so called comprehensively systematised codifications based on abstractly
conceptualised legal notions, modelled on the natural sciences’ method of
mos geometricus, took away the legal force from other different sources of
law, above all from the judge-made law and customary law, and reserved it
only for the laws and regulations by the state.45 Secondly, in analysing the
case of the Vienna Philharmonics, one really has to take the fact, that in
the Associations’ Act from 1867, the associations, pursuing pecuniary goals,
were explicitly excluded from the overall concept of ‘association’, seriously.
I would therefore limit Hellsberg’s assessment, which does point to some-
44 Cf. picture 1 with the citation.
45 Cf. Paolo Grossi, The history of European Law (West Sussex: Wiley-Blackwell, 2010),
80–6.
229
Of course, it may well be, that even though the statistical overview
prides itself on being crafted upon the official data, the year 1702 could
merely have been adopted from both versions of the Statutes, that the Min-
istry of the Interior had received and granted in the previous decade, i. e.
from those from 1849 and from 1854. However, I would like to hypothesise
that if in the future, a similar official dossier for the Statutes from 1849 is
found as we now have it for the year 1854,44 there among the documents we
just might find a further clue as to why in 1849, after 45 years, the first Ar-
ticle had been altered.
In addition to what was said on the Philharmonic Society in Ljublja-
na, the first of its kind at the turn of the 18th century and on its self-percep-
tion projected to 1702, it is not too much of an exaggeration to say that its
Statutes from the decades, following the course of the 19th century, show its
diligent adaptation to the changing state regulation on associations. For my
second case, the Vienna Philharmonics en tant que association, which I am
about to present, this was certainly not so. What is more, as already intro-
duced with my second quotation, Clemens Hellsberg maintained that be-
fore 1908 the Vienna Philharmonic did not exist in any “juristisch existier-
ende form”. With that, I cannot readily agree.
Firstly, I would like to point out that the conviction among the gen-
eral public, that a “legal form” in order to exist, has to be given in advance
(i. e. be sanctioned by the state) and cannot – dogmatically – arise from
the legally relevant practice, is still to this day a child of the continental le-
gal development of the Enlightenment Era. It certainly does not exist in
the nature of the law per se. That view only really took deep roots after the
so called “codification revolution” at the turn of the 18th century. Then, the
so called comprehensively systematised codifications based on abstractly
conceptualised legal notions, modelled on the natural sciences’ method of
mos geometricus, took away the legal force from other different sources of
law, above all from the judge-made law and customary law, and reserved it
only for the laws and regulations by the state.45 Secondly, in analysing the
case of the Vienna Philharmonics, one really has to take the fact, that in
the Associations’ Act from 1867, the associations, pursuing pecuniary goals,
were explicitly excluded from the overall concept of ‘association’, seriously.
I would therefore limit Hellsberg’s assessment, which does point to some-
44 Cf. picture 1 with the citation.
45 Cf. Paolo Grossi, The history of European Law (West Sussex: Wiley-Blackwell, 2010),
80–6.
229
