The Volokh Conspiracy highlights the jailing of an antiques dealer “for conspiring to receive antiquities claimed by a foreign government, in this case Egypt.”
This has been an earthquake of sorts for the American trade in antiquities, it is an open secret that most of the material is assembled against various foreign laws. Previously the American law was applied only to thefts from museums, churches, private homes, and the like, now for the first time it is being applied to thefts from archaeological sites. Dealers suddenly wonder whether they can stay in business. Observers wonder what is the difference between licit and illicit antiquities dealers, given how much of the material comes from sites.
Although the Volokh Conspirator agonizes over this issue in seeking a proper libertarian solution to the problems posed by the antiquities trade, it seems to me that the solution is quite simple in principle, and that the problem is entirely a creation of overweening governments.
As with any other item, an antiquity is properly on the market if the seller has proper title to it. For an old vase recovered from an archaeological site, the answer to who has title is (or should be) quite simple. The vase belongs to the archaeologist (or other person) who found it, unless it was found on private land, in which case it belongs to the landowner. The vase is, essentially, lost/abandoned/mislaid property in the sense that no one knows who the original (or last) owner was and/or no one can trace their living descendants. Under the common law, such property discovered anywhere other than private land belonged to the finder as against anyone but the true owner, meaning in an archeological context that the antiquities belong to the archaeologist, unless the dig was on private land, in which case it belongs to the owner.
The “problem” posed by the antiquities trade is entirely a creation of overweening governments, which have asserted a wholly unjustified ownership interest in all antiquities discovered within their borders. If one disregards this claim (as the American courts apparently did until this most recent case), then in principle it becomes possible to construct a valid chain of title for antiquities, and thus possible for the trade in these items to go forward on the same basis as every other line of business.
One wonders how other countries, especially the French (as I understand Paris is the center of gravity of the arts and antiquities trade), deal with this issue.
Robert,
This is an easy one. France is famously a civil law country, unlike the UK or US.
At common law, you can’t aquire valid title from a thief even if you did not know he is a thief. In the matter of the Elgin Marbles (the most famous cultural property dispute) the British meausum ignores this and rejects Greece’s proper (in my view, though this is disputed vigorously) claim.
In civil law countries an innocent purchaser can aquire good title from a thief as long as he did not know the property was stolen. Wink wink …
Good God! Shocking spelling error–sorry.
So, Abby, do the French just ignore the provenance of antiquities, blowing off claims by foreign governments?
In what way does Greece have a claim to the Elgin marbles? I know little of the detail of this dispute, but the common law doctrine of lost/abandonded/mislaid property would not seem to recognize the Greek government as a potential claimant unless (a) it found the stuff or (b) the stuff was found on property owned by the national government and removed without its permission. If (b) obtains, there is a further problem in identifying the current Greek government as the legitimate holder of any claims that might have been pressed by whatever predecessor was in place when the marbles were removed.
“The “problem” posed by the antiquities trade is entirely a creation of overweening governments,”
Not so fast.
The problem with antiquities is that objects dug out of the ground have great value in the marketplace, but the information which can be gathered through the process of careful digging, cataloging, and examination of the in situ objects–information often valuable to our knowledge of history and ourselves–has almost none.
This means a great deal of scientific, historical, and archaeological information is destroyed by people who see the objects as ways to make money, but who don’t give a damn about the information that is being permanently lost to the world by reckless and careless digging.
It’s akin to not seeing the forest for the trees.
The question for libertarians becomes: how do we convince people who don’t care about historical or archaeological discoveries that these things have intrinsic value?
In Africa they have slowly been able to convince many people that the value of wild life, through the tourist trade, is greater than the value of the ivory or skins or meat of many animals–thus many animals are being saved from extinction. The people have been shown a logical trade-off that they can easily understand. Killing an animal is killing the tourist trade which brings in much needed capital.
But how do you apply that to the simple gathering of knowledge about ourselves, which is usually not a highly marketable commodity?
Robert,
I’ve emailed you a lengthy answer to the second question, don’t let me get started on the first.
Abby, this is a good statement of the general division between the common law and civil law of property as it existed historically, but it’s not a generalization that holds nearly as true in all cases as it used to. At least as I understand the law in the US, most states now DO allow a good-faith purchaser to acquire valid title from a thief through adverse possession: that is, if you hold it out as being your property for long enough (typically 20 years), it’s yours, even as against the true owner.
Conversely, many civil law jurisdictions do not allow an innocent purchaser to immediately acquire good title as against the true owner upon purchase from a thief; rather, they have moved toward the modified common law position above as well, and impose a time requirement before a true owner is fully divested of the opportunity to recover. I know for certain that this is the case in Louisiana, which, although assertively a civil law state, frequently translates common-law concepts into civilian language.
R.C. Dean, you can’t just go about analyzing this question under common law principles: why would the common law necessarily govern? You have to resolve the conflict-of-laws question first. Not knowing all the details, I can’t saw for sure, but I tend to think Greek (civil) law would govern.
“R.C. Dean, you can’t just go about analyzing this question under common law principles: why would the common law necessarily govern?”
Really, my proposal isn’t that the Anglo common law does apply in all these cases; rather, it is that its principles form the basis of a perfectly good resolution of the “problem” of antiquities.
Of course, the law of the country of origin is of interest, but right now most of those countries seem to be engaged in manufacturing “property” rights in antiquities out of thin air in a way that seems to me to have no legitimacy to a libertarian.
When casting about for a “root” for the chain of title, I went with what I know – the common law – which also has the virtue of being very much in tune with most people’s intuitive sense (a combination of “finders keepers” and “it was on my place, so its mine”).
I should point out that the common law of abandoned property has been mostly superseded in the US in any event by statutes requiring that hte lost property be turned over to the state, possibly publicized, and then only after a certain time has passed will the finder be able to claim it.
Oh, OK, I see your point, and entirely agree as a policy matter: the common law does make for a better resolution. As a legal matter, however, I am still (quite unfortunately) inclined to believe the law of the country where a particular antiquity was found would be controilling. A treaty based on common law principles would seem the obvious solution, but of course the countries involved in conjuring state rights to antiquities would never accede to such. Hmmm.
Ann, not so fast your own self.
“In Africa they have slowly been able to convince many people that the value of wild life, through the tourist trade, is greater than the value of the ivory or skins or meat of many animals–thus many animals are being saved from extinction. The people have been shown a logical trade-off that they can easily understand. Killing an animal is killing the tourist trade which brings in much needed capital.”
Actually, the non-hunting eco-tourist trade is relatively negligible. The real value of African big game, and the only real source of cash for preserving African big game, is the hunters (as distinct from the meat and horns). The predominant source of cash and policy direction for saving African big game and the wildlife habitate it requires is the hunting community. The efforts of the hard-core environmentalists to choke off hunting are invariably counterproductive for the animals.
“This means a great deal of scientific, historical, and archaeological information is destroyed by people who see the objects as ways to make money, but who don’t give a damn about the information that is being permanently lost to the world by reckless and careless digging.”
Assuming this is true, what is the best way to maximize the acquisition of this knowledge?
R.C. Dean writes:
“Assuming this is true(reckless digging motivated by money), what is the best way to maximize the acquisition of this knowledge? ”
The current arrangement, with antiquities, biological specimens, minerals and anything else of value that can be claimed becoming a monopoly of the state has two defects.
One is that any private possesion of the material is necessarily criminal, so like the car thief who strips a car and sells the parts for a pittance, or the jewel thief who recuts a large stone into smaller ones of less net value, the private possessor ends up liquidating the asset for a salvage price, destroying much of the intangible information value in the process. He can’t get anything for it, so it is of no practical value to him. Also an item priced cheap is an item sold rapidly which is an obvious advantage in illicit trade.
The other defect is that, historically the concentration of irreplaceable art and literature in museums and libraries has resulted in the periodic loss of these things when wars result in the destruction of enemy cities. More than half of the total of ancient literature was lost in the repeated burnings of the Library of Alexandria. Most catalogs of classical Greek and Roman artifacts have at least a few photos of items that were destroyed during the Battle of Berlin.
Contrast this with the fate of artifacts that are kept in relatively disseminated small collections by private collectors. Even stolen items tend to turn up again after a century or so. It’s not hard to understand why. They are prized possessions that are hidden and protected when war or revolution threatens.
The surface justification for government confiscation of antiquities is that they are the patrimony of a nation and should not be monopolized by a few. So they are monopolized by the state instead. This objection to private ownership could be answered easily by requiring owners of antiquities to make them available for exhibit and study. If they didn’t risk jail by doing so, most owners would probably enjoy the ego gratification. Also, the interaction with scholars would make the artifacts more interesting to own. After all, what can you do with a 2000 year old vase – put daisies in it?
This is a case where registration and licensing makes some sense, at least if it is inexpensive and easily available. It might even stimulate a business in private museums which could preserve, safeguard and exhibit the items for a fee. With an open system, the value of the intangible information could also be realized, so it wouldn’t have to be lost when the item is fenced/sold. There might even be an investment market, in which the artifacts were kept in museums and the deeds to them could be bought and sold. The museums would ideally be small and widely distributed.
What such a system would not satisfy is bureaucratic pride of control and defacto ownership. That, unfortunately, is what I think is at the heart of the current system.
Dave J.
No offence, but you are mistaken on several points.
(1) Adverse posession with regard to chattels is possible, but it is very difficult to satisfy the “open and notorious” prong with respect to art. The test in New York, of course, is the most important and by far and away the most difficult to satisfy (some might call it draconian). There are several facinating cases on the subject and if you like I will send them to you.
(2) Your most grevious error is on the choice-of-law point. With regard to cultural property, there are many different international treaties which govern the subject–the ICJ has jurisdiction (the US is a party to many even though it is a market country, but the UK is not, just for this reason). Many nations treat cultural property much differently than other forms of art. You court trouble when you conflate the two.
I suppose you could go through the completely pointless exertion of bring suit in the state of origin; but courts of one country are under absolutely no obligation to enforce the judgements of another (if that were the case then Gen. Franks would be in extremely serious trouble). If you seek a meaningful victory, you must win in the jurisdiction in which the object is located.
As Robert rightly points out, the common law applies because the UK is a common law jurisdiction. Unfortunately, the BM is governed by a special statute and the courts take the position that repatriation would require an act of Parliament.
If you are truly interested, I wrote a paper on the subject my third year. I’m always happy to have someone take an interest.
Lastly, I think that Louisiana law is very different, still, than all the other states. I would never dream of trying to pass the bar there. In fact, I’ve always suspected they do this to support the local law schools, but that is just conjecture.
Doug,
Never let it be said that the UN has been caught napping where futile gestures are concerned. UNESCO provides just such a system of registration. Fat lot of good it has done.
Abby-
Ugh- You just made me ashamed of myself for suggesting something the UN is doing.
I had in mind a system that would work once ownership had been legitimized. It would also have to be absolutely without the power to deny registration to anyone with a valid claim to ownership. (Validity being something that you and the others are arguing more competently than I could do.)
Because I can’t believe that the UN would be in favor of any extension of private property rights and would certainly require that any power over who can be registered be pryed out of its cold dead collective hand, I can take solace in the belief that they can’t possibly be thinking of the same thing as I suggested.
OK, Abby, I admit to having forgot at least as much property law as I ever learned moments after finishing the Florida bar exam.
“As Robert rightly points out, the common law applies because the UK is a common law jurisdiction.”
That seems exceedingly simplistic. While they’re obviously under no compunction to do so, courts apply the law of other jurisdictions all the time.
“Unfortunately, the BM is governed by a special statute and the courts take the position that repatriation would require an act of Parliament.”
I’m not sure I see why that’s necessarily unfortunate.
“Lastly, I think that Louisiana law is very different, still, than all the other states.”
Indeed so. It’s a mixed jurisdiction: common-law public law, civil-law private law. Similar to Quebec, Puerto Rico, South Africa, Sri Lanka and Scotland.
“I would never dream of trying to pass the bar there.”
I went to Tulane and neither would I.
“In fact, I’ve always suspected they do this to support the local law schools, but that is just conjecture.”
I certainly hope you’re being facetious.
I don’t have a problem with laws to protect the archeological context from looters. What’s a more interesting discussion is the extent to which landowners rights should be curtailed or enhanced (or both) by archaeological discoveries on their property.
Shouldn’t the Elgin Marbles be distinguished from the antiquities in the original story because their removal (1803) from Athens pre-dates the formation of the predecessor of the Greek state (1824)?
At the risk of getting nationalist death-threats: If they were sold to Elgin unlawfully (which may not be the case) and this founds a government claim, then it is Turkey as the successor of the Ottoman government that has that claim.
OK Dave, Fisking me? Really.
The reason that the BM statute is unfortunate is because it puts Greece out of court.
(1) short of invading Britain, a judgement from the Greek courts would be completely unenforcible (this is why the UK won’t agree to a temporary loan to Greece–they would never see the Marbles again).
(2) the EU’s regulations on the subject are not binding, so there’s no use bothering the European Court.
(3) while the UK is a party to the Charter, and therefore subject to the ICJ’s jurisdiction, it has refused to sign any treaties which would obligate it to repatriate the Marbles.
(4) That leaves us with the British courts and their clever hanky-panky with the BM’s charter. As our supreme court is wont to do, the statute has been “inturpreted.” It now requires an act of Parliament (it didn’t used to).
So yes, from the perspective of the Greek people, the vast majority of the British people, and the many lovers of Greek art around the world (of which I am one), it is quite unfortunate.
And lastly, yes, I was just kidding about the Louisana schools. I hope your feelings aren’t hurt.
Guy,
Very incisive questions, all. You have swept away the chaff.
(1) Most countries (I should think almost all) have passed laws laying claim to all artifacts discovered in the soil of their jurisdictions. Anything found after the date the law goes into effect belongs to The Man.
(2) The cultural property treaties (to which the UK is not a signitory) place ownership with the “culture” which created it, not the state. (Bear in mind, cultural property is very different from a Monet, which is not part of the cultural property of France). The Parthenon and its sculptures embody the heart of Greek culture. In fact, they are the symbol of UNESCO, an impotent UN beauracracy devoted to the subject.
(3) But using a strictly common law analysis, the answer to your second question depends on your frame of refrence. Ask yourself: Would it be OK if the US, while occupying Iraq, told the Australians to help themselves to a Summerian temple as a thanks for their support during the war?
We and the UK are the occupying powers, and the new state of Iraq has not been created yet. Is Australia’s title clean? Legally, yes (if you ignore the treaties). Is it right?
If not, wouldn’t it be a noble act of magnanimity to give the Marbles as a gift to Greece for the opening of the new Acropolis Museum? The Museum has a special wing dedicated to house them in the event they are returned. They vow it will remain empty until that time.
(4) As far as your last point, a new theory is being floated. The Parthenon itself may sue the British Museum (I can see the political cartoons now). The theory goes back to a very obscure common law principle. But in short, the Parthenon wants to be whole again. The sculptures are part of the building itself–they are an integral part of its design, not simply decorations as mobile artwork would be.
Of course, this is all mooted by the idea that the BM can’t give them up with out an act of Parliament. Still, a fascinating legal/moral/logical pretzel. Yum.
) The cultural property treaties (to which the UK is not a signitory) place ownership with the “culture” which created it, not the state.
Interesting idea. So Roman artifacts found in Britain would be … what…. the property of the Italians?
The difficulties with the notion of “cultural” property are profound. Most of the basic elements of a legal claim are pretty much unmoored.
First is the question of who can assert the claim? “Cultures” have no legal standing. In reality, a claim of cultural property is a claim that the item is the property of the state that happens to be occupying the place where it was found. Many of these states have no particular connection to the “culture” which created the item. Guy – I had the same thought about the Turks probably being the rightful owners of the Elgin Marbles under ordinary property rights analysis. The possibilities here are wonderful – imagine the Israelis saying that all Muslim artifacts found in Israel are the cultural property of the Jewish state.
Second is the issue of how and under what circumstances a claim of cultural property displaces title in the item at hand. Under ordinary legal principles, many of these artifacts belong to someone already, and that someone usually isn’t the state asserting cultural property claims. On what basis can a state expropriate someone of their property simply because of its “cultural” value?
A related question is, what makes something sufficiently “cultural” that the current owner is stripped of their rights and the item is awarded to the state?
Basically, I don’t think the notion of cultural “property” really has much to do with property at all. It is a euphemism for state seizure of other people’s goods, and nothing more.
“Would it be OK if the US, while occupying Iraq, told the Australians to help themselves to a Summerian temple as a thanks for their support during the war?”
Would it have been OK for Saddam Hussein to have given away Sumerian artifacts discovered in Iraq while he was in power? If not, why not? If it was his “cultural property” (and he was the recognized government leader of Iraq for many years) why shouldn’t he have been able to do what he wants with it?
What are you folks talking about? The guy in question received property which in some cases was literally stolen from Egyptian government storage rooms and he knew the provenance.
David – we were talking about larger issues of governments generally asserting a (groundless) claim of ownership in all cultural artifacts. The marquee example is the ongoing Greek attempt to get the Elgin Marbles back, without the slightest property right in those marbles that I can discern.
The other question is, how did the Egyptian state acquire the stuff that was allegedly stolen? What is the basis for their claim of ownership? I don’t have any idea in that case, but the trend is for states to simply sieze this stuff on the sole basis that it is “culturally” important.
Really, this topic gets at the origin of property rights (kind of like an earlier post about hunting and property rights in wild animals).
Just to add another wrinkle to the problem (a bad habit picked up at law school); I believe Elgin dug up his trinkets while the Ottomans were occupying Greece. If so, the legal status of any ownership gets even more problematic. Christopher Hitchens wrote a short book on the subject a while back.
The status of antiquities in the US is more and more governed by Federal statutes and not common law. Indian Graves Repatriation Act and other laws governing particular sites now determine the ownership of many artifacts. Even paeleoontological specimens have fallen under the notice of tribal and federal authorities, eg the controversy over ‘Sue’ and some very old human remains discovered recently in the NW.
With regards to fixing a value on the information content of a site as opposed to the free market value of its artifacts, there is a further problem in determining when to leave things alone until the state of archaeological ‘science’ catches up with the unique problems presented by a given site. It is clear that some resources are better left undisturbed until the state of the art is equal to the challenge presented by them.
Abby,
> So yes, from the perspective of … the many lovers
> of Greek art around the world (of which I am one),
> it is quite unfortunate
Uhh, you got one syllable wrong: it’s quite FORTUNATE the Marbles are in the British Museum–what sort of condition do you suppose they’d be in if they had been left in situ?
“…problem is entirely a creation of overweening governments.”
“….we were talking about larger issues of governments generally asserting a (groundless) claim of ownership in all cultural artifacts.”
The problem of the antiquities trade is rarely one where the object was found in someone’s backyard. The objects are more often than not stolen from someone else’s back yard and looted museums, public lands, and parks.
If it’s about ownership of the property owner, even if the park land was claimed by a governments, then the object was stolen. Farmers freely sell world wide those objects they find as they plow. This practice is rarely seen as a crime nor do I know of anyone trying to stop it anywhere.
The problem is when public lands are looted for objects already known to be there and are protected then they taken without proper permitting by looters or thieves.
You wouldn’t allow an electric company to use Old Faithful in Yellowstone to create thermal power would you? That land belongs to the people, kept in trust by the government, as is the case with most looted antiquities. History is not a commodity, but it is still a resource. And as a resource it needs to be managed to get the most out of it. By destroying cultural resources through looting or carelessness you permanently lose that resource. It is forever gone. And unlike a forest, you can never ever grow it back. Certainly cultural deposits cannot stand in the way of progress, as in construction of a new and needed highway, but we shouldn’t sell off a priceless heritage for pennies on the dollar to benefit a few thieves, as is the case in the illegal antiquities trade. But all we want in the end as archaeologists and historians is a recordation of that deposit, and the protection of those deposits that exist on public lands. Is that too much to ask for?
Is it really a groundless claim for a people to stake a claim upon its past, assuming a government can represent that will of the people?
BTW it is all too often corrupt government officials who are behind the illegal antiquities trade.
Dude if you want to be an Archeologist, you gotta dig aggresivly.