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Regulating Disclosure of Private v. Public Museums
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Regulating Disclosure of Private v. Public Museums

A few days ago I commented in a CPAL post that I would support legislation requiring publicly funded museums to disclose provenance or lack thereof of the items in their collections. Archaeologist Paul Barford asked via comment why I would make a distinction between public museums and private ones? He pointed out that the harm in displaying artifacts without provenance is the same regardless of whether a museum is private or public.

I brushed off his question with a comment on my libertarian leanings, but if you know Paul Barford, you know he is nothing if not persistent. So he asked again. I took a little time to think about it and did find some clarity in my position.

I believe that publicly funded museums should be held to a higher ethical standard than currently exists, one that takes into account potential societal harms and political conflicts that may result from irresponsible collecting practices. When an institution accepts public funding, it waives many rights it may have had beforehand. It becomes subject to regulation that, if applied to private entities, may be excessive.

To apply legislation requiring full disclosure to private museums is to act as if there is no such thing as the legal trade in antiquities. It is to invite Big Brother into the private sphere to inspect personal actions and possessions for ethical/moral compliance. As a matter of principle, I believe that regulating morality at the expense of private rights is ethically wrong. And I believe this might be what would be happening were we to legally require disclosure on the part of private museums.

The most relevant analogy that comes to mind is the 14th Amendment to the U.S. Constitution as it provides for equal rights regardless of race. Every public business in the U.S. is legally required to provide services and allow admission regardless of race, and thank goddess for it. But truly private enterprises are not. There are still some “whites only” clubs in Georgia, and those dumbheaded fools have a constitutional right to have those clubs that restrict membership. While I am not proud to live in a country where some people feel that way, I’m sure as hell glad to live in a country where they have the right to.

To lawfully require private museums to provide proof of provenance would, in a manner, circumvent the due process right to be innocent until you are proven guilty. It would be to assume guilt on the part of collectors and curators, and to shift the burden to them to prove their innocence.

What it boils down to is what kind of government you want to have. I have not been convinced that the interests that would be served by legislation requiring disclosure on the part of private museums outweigh the interests that would be undermined (privacy, due process, and free trade, mainly).

Due to my personal convictions regarding liberty and government, I would rather err on the side of less governmental regulation as a matter of principle when it remains unproven that the public interest mandates interference with private, lawful actions.

[Having said all that, of course I believe that private museums should be held publicly accountable for disclosing provenance of the items in their collections.]


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15 Comments

  • Under NAGPRA, the use of public funds is already the government hook to force museums to repatriate Indian burial goods in their collection. With some exceptions (like most human remains), I am not sure we are better off for it what with artifacts being returned to tribes for reburial (and disintegration) or even resale. Some people think government funding is the equivalent of government largess, but for many museums such funding is minimal. Yet. the burdens of the regulation you suggest would be great. And what if an artifact has no recorded provenance? I don’t think one has the right to assume that means it was recently looted though, of course, that is what some members of the archaeological community assert.

    If we put such burdens on museums receiving public funds, should we not also put such burdens on archaeologists receiving public funds? The record of the archaeological community in properly recording, preserving, displaying and publicizing their finds is not always as good as is claimed.

    Sincerely,

    Peter Tompa

  • Peter,

    Thank you for your thoughtful response.

    I think you might be misunderstanding the kind of regulation I am suggesting. I am just talking about disclosure. If the museum has an object without paperwork establishing provenance, they just disclose that in the form of a detailed accounting, easily available to the public on the web. So, no assumptions that the object is looted. It’s not about pointing fingers and getting all grimacey; it’s about transparency. This would discourage acquisition of unprovenanced artifacts in a very non-intrusive way, don’t you think? (Baby steps…)

    I would agree that publicly funded archaeologists should be required to make their findings publicly available.

    Kimberly

  • As someone who knows Paul Barford well I agree he is nothing if not persistent, indeed I might put it rather more colourfully! But in this case and many others I can quite understand why, and I applaud him. Liberalism is laudable in itself but its appeal wears thin if it is seen as a green light by those who are less than community spirited, as is demonstrated widely and daily in the fields of Britain. There, I think there is every reason to wish that we could “invite Big Brother into the private sphere to inspect personal actions and possessions for ethical/moral compliance” and it is notable that it is British artefact hunters that are amongst the most enthusiastic and noisy supporters of the sacred and inalienable rights of free born Englishmen! Similarly, I get the impression that on your side of the pond collectors of archaeological artefacts are in the vanguard of libertarianism!

    It does indeed boil down to the kind of government you want. And that involves deciding between private rights and public good, something which, if we are to avoid the two extremes of authoritarianism and chaos, can only be judged on a case-by-case basis, not applied slavishly. My own personal preference would be to legislate those “whites only” clubs in Georgia into the dustbin of history so I guess in that case, as in the case of the archaeological resource, I tend to value the public good over private rights. But then, every law in the United States does exactly that, restricts private rights in favour of a perceived public benefit, so I make no apology for advocating the application of a bit of extreme British tyranny in Georgia.

    Thus, while I entirely share your instinct that “I would rather err on the side of less governmental regulation as a matter of principle when it remains unproven that the public interest mandates interference with private, lawful actions” I do not see this as a reason for “erring” and leaving current “lawful actions” as immune (in the name of “freedom”) from being re-defined as “unlawful”. If I did I would be advocating an end to all new legislation. If it becomes evident that “the public interest mandates interference” then the public has a right and a duty to interfere and I think there is ample evidence that there is sufficient wrongdoing relating to the acquisition of archaeological artefacts to warrant action. Further, the fact that the damage which results from this wrongdoing mostly occurs in countries far from the United States is no reason at all for inaction. There are innumerable examples of American legislation which are specifically aimed at preventing bad things happening abroad.

    I am sorry to advocate curbing the freedoms of right-doing collectors. I am also sorry to support speeding laws that imply innocent drivers are potentially capable of being guilty. But in both cases there is also the overall public good to be considered, something which responsible drivers acknowledge. They rarely complain about their loss of freedom. Not so virtually every British artefact hunter, the proprietors of whites only clubs in Georgia and very many American collectors. Beware the enthusiastic advocate of freedom, I say. Whose freedom? Socrates said any person who knows what is truly right will automatically do it. I fear he got it wrong as not everyone wants to be educated about what is truly right. Sometimes we need rules not freedom, gentlemen’s agreements, codes of ethics, voluntary agreements, persuasion or education. After ten years of the Portable Antiquities Scheme most British artefact hunters, devout libertarians all, tell no-one what they dig up or where. All we know is that American collectors, some wittingly and some unwittingly, provide much of their incentive. Your philosophical libertarianism is my real damage!

  • Nigel,

    Thank you for your response.

    There is only a percent or so of Americans that affiliate themselves with the Libertarian party. I do not know of any collectors among our ranks, although I suppose it is possible. Libertarianism in the States is, from what I can tell, a different creature than Libertarianism in the UK. I had not realized that there was a Libertarian presence in the UK, but see now that there is. So that might be the source of some confusion. Here, it is quite different than Liberalism.

    I do not agree that every law in the US restricts private rights over a perceived public benefit. Our most fundamental laws ensure private rights and protect private interests.

    You say that you would like to make currently lawful actions unlawful. I think this is off-topic from disclosure requirements that I was talking about. I only make that point to be clear that I have not stated agreement or disagreement with this proposition.

    I am inclined to believe, however, that if an American demand is fueling illicit behavior in the UK, that there are better ways to curb it than laws which would permit the government to enter my living room and inspect my possessions. I think, first, emphasis need be placed on policing and import restrictions. Only when that avenue has been truly exhausted should we embark upon a course which will undermine civil liberties.

    Thank you for your perspective.

    Kimberly

  • “I think, first, emphasis need be placed on policing and import restrictions. Only when that avenue has been truly exhausted should we embark upon a course which will undermine civil liberties.”

    I wasn’t proposing mass raids on living rooms and agree that import restrictions are the obvious first step.

    Can I take it that you do support that step?

  • May I ask, do you collect anything Kimberly?

    Do you think import controls (let us say of the USA) should take into account whether the imported commodities had been produced and exported in accordance with the law of the country of origin?

  • Paul,

    While I collect books, I hardly think that’s what you meant. I do not collect any archaeological or ancient materials.

    In terms of import controls, I support bilateral agreements to enforce source nation patrimony laws.

    Kimberly

  • Nigel,

    I believe my comment to Paul answers your question as well. I do support import controls as far as they are born of bilateral agreement to enforce export restrictions.

    It was more figurative, the living room comment, but I feel like intrusion into private, lawful actions should be a last resort. I can see that you might have a different perspective because you feel lawful collections should be made unlawful. Is this true?

    Kimberly

  • “It was more figurative, the living room comment, but I feel like intrusion into private, lawful actions should be a last resort. I can see that you might have a different perspective because you feel lawful collections should be made unlawful. Is this true?”

    As a general principle I see nothing wrong with making a hitherto lawful activity unlawful if the evolution of events make it evident that the public interest (or the public’s moral sense of concern for what happens overseas) would be served. It happens all the time. That’s why the law is continually amended.

    So far as collecTIONS are concerned, a change in their legal status would involve laws having retrospective effect and there are few circumstances where that would be practicable or just. But in the case of collectING, then yes, I think statutory controls over what and how items are imported is certainly justified. It seems to me that in the case of ivory collecTING for instance, if this was governed solely by voluntary codes of collecting ethics coupled with a doctrine of inviolable American living rooms it would be a sad day for elephants. That sad day has already arrived in the fields of Britain and it’s high time the US did the neighbourly thing. I’m sure, if the roles were reversed, you would be looking to Britain to help you.

    Some collectors have publicly proclaimed that so long as US laws are complied with they feel no responsibility over the laws, practice or effects in “source” countries. I find that attitude unacceptable and so long as it exists there remains a need for the US to take legal steps to make their legal but unethical and damaging behaviour illegal under US domestic law.

  • Nigel,

    You keep criticizing the US, saying they need to take action, but I am not hearing specifically what you think needs to be done. Or is it just, “more”?

    Kimberly

  • I received this very well-thought comment from someone who wished it to be posted anonymously:

    In my opinion, bilateral treaties are one form of protection that is accorded to some archaeological artifacts or classes of artifacts (i.e., monuments) and has been limited to either agreements arising under the CPIA or separate agreements that have been entered into, apart from the CPIA, with Mexico, Peru and a few other nations. This response however fails to account for situations where individuals engage in a conspiracy to violate patrimonial laws of a source nation or the individuals, themselves, specifically violate the patrimonial laws of a source nation . Assuming that objects were taken in violation of the patrimonial laws of a source nation the absence of bilateral agreements should not preclude: (a) the United States from bringing a criminal action to prosecute those individuals (Hollinshead, McClain, Schultz), (b) the United States from bringing a forfeiture action to seize the object in question (United States v. PreColumbian Artifacts and Republic of Guatemala, United States v, An Antique Gold Platter, or United States v. One Lucite Ball) or (c) the source nation itself from bringing a replevin action to retrieve that artifact (Republic of Turkey v.
    Metropolitan Museum, Republic of Turkey v. OKS Partners, Government of Peru v. Johnson or Republic of Croatia v. Trustees of the Marquess of Northampton 1987 Settlement) Of course, in each instance the burden would be on the government or the source nation to prove that its patrimonial laws are clear and precise (i,.e, unambiguous); the object in question was removed from that source country (the problem that existed in Government of Peru v. Johnson or Republic of Croatia v. Trustees of the Marquess of Northampton 1987 Settlement) and the object in question was subject to and removed following the enactment of that law.

    In short while bilateral agreements may make civil or criminal prosecutions easier, bilateral agreements should not themselves, be the sole basis of a civil or criminal action for the return of artifacts that were removed from a source country in violation of its patrimonial laws.

  • “Nigel,
    You keep criticizing the US, saying they need to take action, but I am not hearing specifically what you think needs to be done. Or is it just, “more”?”

    I don’t know how much clearer I can be.

    If you would kindly enact laws providing British antiquities with the same protection as elephants we would be very grateful.

    In other words, it would be immensely helpful if you would make it illegal to import British archaeological artefacts unless they can be shown to neither illicitly nor unethically nor irresponsibly sourced to the detriment of our heritage record here.

  • Nigel,

    You seem to have mistaken me for the United States of America. I believe you may contact the executive branch at http://www.whitehouse.gov/.

    Unfortunately, however, the legal system here is not structured in such a manner as to satisfy your requirements. I do not think it will ever be.

    Thank you,

    Kimberly

  • Sorry, Kimberly, you asked me to expand upon my criticism of the US and I did so. I’m sure you very well understand that “you” was shorthand for the United States and not meant to imply “You” any more than my use of “we” implied I spoke for the British government.

    I was hoping you would respond with your own view of the proper solution, this being an exchange of views up to now, and am a bit disappointed to be effectively told instead “go talk to Washington” so I think I’ll bow out now. Perhaps though I could leave you with a link that might convey why I have strong feelings about the lack of US/your enthusiasm for legislation on this matter.
    http://www.heritageaction.org/?page=heritagealerts_metaldetectingartifacterosioncounter

  • Nigel,

    A ban on all British antiquities imports subject to a few narrow exceptions is just not going to happen anytime soon. It is so unrealistic that it is just not even in my range of decision as to whether I would support it or not.

    My personal political preferences would be for a decentralized U.S. government, with more power in the hands of the states, much less federal criminal law, no legislation of morality, etc. But this is not going to happen. I am not going to waste my breathe trying to make it happen. What I will do is work within the current framework to try and find the alternatives that may further my individual goals.

    Yes, I’d rather stay away from the we/you framework, especially if the discussion leans toward victim/perpetrator, if you don’t mind. It tends to be a bit inflammatory.

    Thank you for the link. The picture gives a good perspective as to how widespread the detecting can be in certain areas.

    Kimberly

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