The Routledge Companion to Cultural Property

Jane Anderson, Haidy Geismar, Jane Anderson, Haidy Geismar

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317278795
• Edition: 1
• Topic: Sozialwissenschaften
• Subtopic: Archäologie

The Routledge Companion to Cultural Property contains new contributions from scholars working at the cutting edge of cultural property studies, bringing together diverse academic and professional perspectives to develop a coherent overview of this field of enquiry. The global range of authors use international case studies to encourage a comparative understanding of how cultural property has emerged in different parts of the world and continues to frame vital issues of national sovereignty, the free market, international law, and cultural heritage. Sections explore how cultural property is scaled to the state and the market; cultural property as law; cultural property and cultural rights; and emerging forms of cultural property, from yoga to the national archive. By bringing together disciplinary perspectives from anthropology, archaeology, law, Indigenous studies, history, folklore studies, and policy, this volume facilitates fresh debate and broadens our understanding of this issue of growing importance. This comprehensive and coherent statement of cultural property issues will be of great interest to cultural sector professionals and policy makers, as well as students and academic researchers engaged with cultural property in a variety of disciplines.

1

Introduction

Jane Anderson and Haidy Geismar

The many faces of cultural property

This book is both a reader and an extended argument for how to think about cultural property today. Cultural property is a term that has different meanings across scholarly disciplines, governmental and policy environments, within museums and collections, and within communities of practice. A curious hybrid of culture (the evanescent and immaterial systems and structures of knowledge that bind human beings together) and property (the ideologies, political regulations, customs and popular consensus that establish entitlement and sovereignty, and determine claims and power over a range of tangible and intangible resources), cultural property is an evolving category used to describe ways of talking about collective entitlement, shared inheritance, the material nature of identity, and in more recent years, to debate the ethics of the commoditization of culture.

This collection of commissioned essays demonstrates how cultural property is more than valuable artefacts embedded within varied forms of control and allocations of rights. Collectively, the chapters in this volume argue that cultural property is also popular discourse, a way of describing culture, a form of sovereignty, a unit of power, a measure of value, a political instrument, and that it refers to a wide range of different things, both material and immaterial. This book is therefore primarily an argument for multiple perspectives on cultural property. Our ambition has been to curate a selection of chapters that reflect the ways in which cultural property is described and discussed from different vantage places, academic disciplines, forms of governance, and practice. Taken together, these essays demonstrate how cultural property’s collective nature, as well as the ways in which relationships of rights and authority are activated, emerges around the world in many different ways. We recognize that the volume reflects the ways we are situated in this landscape, as scholars who work and teach in the United Kingdom and North America, with research backgrounds in Australia and the Pacific, and with disciplinary backgrounds in anthropology, critical legal studies, and Indigenous studies.

For the purposes of this Introduction we define cultural property very broadly as the recognition of collective rights in both material and intangible culture within international policy, national law, cultural institutions, local contexts, and everyday practices. As the history of cultural property we present in this Introduction demonstrates, cultural property as an idea, as a legal category, and as something tangible in need of protection has emerged historically out of armed conflict and has been conceptually embedded within the modern nation-state. The threat, through the violence of warfare to churches, libraries, works of art, and monuments, both demanded and constituted a new category of national property, which needed international recognition in order to be preserved. The language of cultural property therefore emerged predominantly in the nineteenth century as a means to position the nation-state as the owner of particular kinds of artefacts and institutions. Breaking open a space between traditional ideas of private property and of public property, this category of national property produced a new understanding of the inalienable relationship between the state and its possessions. However, by the end of the twentieth century, challenges to this jurisdiction had emerged from many directions. The language of cultural property has been adopted and adapted by collectivities that actively resist the authority of the state over diverse cultural resources.

The essays in this volume demonstrate that the rights and relations of cultural property are multiple and need to be understood as engaging a range of actors with varied power and agency. Despite its history, nation-states and national institutions are not the only arbiters of the definition and value of cultural property. As such we must also be attentive to the ways in which cultural property has been able to offer itself as a vehicle to articulate complex identity politics and painful histories of exploitation and appropriation both within and between states. We are committed here to exploring the diverse languages, interpretations, materialities, and politics of cultural property and to understanding the power of global concepts and values as well as local differences in both the implementation and interpretation of cultural property. It is crucial to recognize that whilst cultural property policy and legislation, particularly from within Anglophone traditions, may be seen to be relatively similar across the globe, the interpretation and implementation of cultural property vary from place to place, and are in turn continually altering mainstream understandings and definitions (see Coombe 2009; Geismar 2013b; Myers 2005). Canonical contests over cultural property such as the destruction of the Bamiyan Buddhas by the Taliban in 2001; the restitution of art stolen from Jewish families during the Holocaust; the loss of cultural heritage in the building of the Aswan High Dam in the 1960s; the 2012 settlement by Yale University over artefacts collected from Machu Picchu in Peru in 1912–1915; the appropriation of Navajo designs by Urban Outfitters in the United States; the fight by the British Museum to justify keeping the Greek Elgin/Pantheon Marbles; and Indigenous anxieties over the distortion of Quileute tribal narratives by Stephanie Myers in the Twilight trilogy demonstrate how it is vital to pay attention to local differences as well as global histories, to appreciate the discontent with the assumption of national sovereignty from both within and across nation-states, and to understand that the phrase ‘cultural property’ does not simply reference an international category and bureaucratic order, but is itself an active site of claim making that is about political recognition, cultural memory, and identity formation.

Genealogies of cultural property

To understand the diverse strands of engagement and the questions provoked by cultural property, it is important to understand the key historical moments that constitute a genealogy of mainstream understandings of cultural property. Despite the complex global history of cultural property, inflected by multiple locations and histories, the category and concept has historically been bound to elite institutions and the emergence of (largely European) nation-states. This history has established an authoritative and disciplinary framework, grounded in cultural institutions such as museums, in material culture that is monumental, sacred, and antique, and in languages of law, policy, and governance.

As the very term itself suggests, cultural property develops out of longstanding traditions of property theory, but it also departs from mainstream trajectories of property thinking, pushing against familiar ideas of private property and possessive individualism whilst marking interests in collective identities, social relationships with tangible and intangible objects, and discourses of cultural rights. Property is traditionally understood as a right or ‘an enforceable claim to some use or benefit of something’ (Macpherson 1978: 3). Just what this right is, how it is developed, justified, and elaborated has been the primary focus of property and social theorists at least since the seventeenth century.

It is possible to trace a pre-history of cultural property as Marcel Mauss does in his classic essay The Gift (1990 [1925]) into Roman codes of patronage; as Merryman (2005) does to the writings of Polybius of Athens about plunder in ancient Greece; and to medieval discourses of the commons (Boyle 2008). However, for the purposes of this volume, we focus on the emergence of modern cultural property thinking as it emerged from the seventeenth century onwards in response to a variety of social, economic, and cultural factors, including the interests and effects of colonization, concerns for articulations of nascent national and ethnic collectivities and the increasing technological capacity for the destruction of valuable sites of memory and identity. The modern definition of property is usually recognized to have emerged during the European Enlightenment (Macpherson 1978; Macpherson, Parel and Flanagan 1979). Enlightenment philosophies posited that property was an exclusive right of individuals over the things that were produced through their own efforts or labour. Property and personhood were thus intimately entangled from the very beginning (Radin 1993). This position was argued most famously by the philosopher and political theorist John Locke in his Two Treatises of Government (2011, first published in 1689). Locke’s description of property posited it as a natural right – that is, an inherent and original right existing by virtue of human existence. The key point of the natural right thesis expanded by political theorists in this period is that certain rights exist automatically in distinction from those established through government. As a natural right, property pre-exists government and therefore the state. Locke argued that government should not, and could not wind back, reduce, or take away already existing rights to property for individuals.

Lockean ideas about ‘first possession’ and that property is produced through the active action of individual labour still have influence within the debates and claims of a range of modern property theorists, including in the domain of cultural property (e.g. Rose 1994). These European, and later North American, understandings of property were exported around the world during the nineteenth century through colonial expansion, and via international law and policy within the twentieth century. In fact, these theories of property were crucial for the colonial appropriation of territory and resources, especially from peoples whose lands were not perceived to be noticeably transformed through culturally specific ideas of what exerting labour on lands (for instance cultivation) looked like. As a result, these peoples were deemed to be without property, and therefore without history or culture (Wolf 1982). These legal definitions were bolstered by a nascent evolutionary anthropology (not without its critics) and by contemporary theories of race (Pels 1997; Asad 1973). For instance, when the British first arrived in Australia in 1788, they claimed the territory on behalf of the British Crown as terra nullius – the political concept that ‘previously empty “waste” lands could be settled without conquest’ (Benton 2001: 168). Whilst this legal doctrine was a strategy built out of prior histories of colonialism, it was maintained effectively because it was based upon a narrow cultural understanding of how property in land was acquired and justified. The doctrine of terra nullius in Australia was only overturned, through the famous Mabo case brought by Torres Strait Islander Eddie Mabo, in 1992. The consequences of this form of settler colonialism reached much further than just the taking of lands. In Australia, it included the taking and disciplining of Aboriginal and Torres Strait Islander bodies and targeted attempts to destroy complex social relationships and cultural practices through directed governmental policy (Nakata 2007). Aboriginal and Torres Strait Islanders only became legal citizens of the nation in 1967; prior to that they were considered ‘wards of the state’ with almost no rights. Eileen Moreton-Robinson has thoughtfully observed that the Australian nation, once it became a white possession, was renamed and mapped according to prevailing European logic of ownership. It is this logic of ownership that has produced invisible borders that continue to deny Indigenous sovereignty (Moreton-Robinson 2015).

Cultural property as political theory

Locke’s natural rights thesis for the foundation and justification of property emerged within complex political debates about the nature of existence and the authority of the Crown. Yet Locke’s idea of the individual and his property, which was implicitly gendered and racialized (Harris 1993), generated a parallel conversation around the form of the collective rights that were necessary to support the rights of individuals. Colonial expansion enabled European social theorists to contemplate the telos of their own social forms by placing them in both comparative and historical context. The English philosopher Thomas Hobbes argued in Leviathan (1996 [1651]) that rights were not natural but rather produced by the sovereign state. Later, French philosopher Jean-Jacques Rousseau who also started from a natural rights position, modified and refined his ideas of property as an unlimited right through his own emergent ideas of evolutionary change and equity. He developed Hobbes’ notion of a ‘social contract’, in order to explore the ways in which the natural rights of man could be consensually organized into enlightened government in order to combat the inequalities enshrined within the more individualistic orientation of commerce and property theory (1998 [1762]). Rousseau’s concern was that the idea of an unlimited property right (like the one that Locke had advanced) actually deprived most people of property: unequal private property enslaved some men to others. Importantly for our purposes, the archetypal property form, the ‘thing’ in these theories, was still largely land, which became property through the application of a culturally specific idea of human labour and organization, and through an increasingly naturalized relation between territory and political authority (Hann 1998b).

Lockean ideas of property were also picked up, adapted and moved into other areas of developing property law which was influential on emerging understandings of cultural property. For instance, in the literary property and copyright debates of the eighteenth century, Locke’s ideas of first occupancy (of property) and natural rights were strategically deployed by the English jurist William Blackstone who was a central figure in arguing these cases and in producing one of the most significant corpus of legal writing that influenced both English and colonial jurists and lawyers – the 1797 Commentaries of the Laws of England. In the cases that are foundational to our modern idea of copyright, Blackstone strategically redeployed Lockean concepts, arguing how the original work of an author was akin to the first occupancy of an idea, and that therefore very specific legal protections were necessary (Drahos 1996).

These emerging European ideas of property inevitably engaged questions around who could constitute a property owner, the governance of one’s body and labour, and of territory, establishing a link through property to many different kinds of rights: human, cultural, and political. This specific genealogy of property directly connects to the emergence of discourses of human and cultural rights (Cowan et al. 2001; Goodale and Merry 2007). As Margaret Radin makes clear in her seminal work on property and personhood, it is because a person can be bound up with an external ‘thing’ in intricate and intimate ways that questions of personal liberty and the capacity to exert control over that ‘thing’ arise (Radin 1982).

Theories of property are deeply entangled with ideas about political sovereignty (Agamben 1998). Property rights are therefore by definition human rights, framed increasingly as the rights of citizens. During the Enlightenment discussions of natural rights displaced discourses about spiritual authorization of inheritance by God. By the nineteenth century, as property became institutionalized at the level of the state and with regard to law and legislation, it also opened up new conceptions of public and private property and notions of collective inheritance became linked to burgeoning theories of cultural identity and cultural progress.

Social theorists have continued to be concerned around the inequities embedded within the institution of property. For instance Karl Marx’s ‘law of value’ (1992 [1847]), which owes a significant debt to Locke’s original conceptualization of the relationship between labour and property, focused on the ways in which value was produced through both human labour and the political systems that emerged to regulate it. His writing, influenced by legal theorists such as Louis Henry Morgan (1877), explored how different political and economic systems constitute the relationships between people, labour, and things. Marx detailed how capitalism had emerged in the nineteenth century to dominate political and economic theories of ownership, entitlement, and rights, and his influential writing (e.g. 1976 [1867]) exposes the salience of the commodity form in modern understandings about value, property, and ownership. Marx’s notion of ‘commodity fetishism’ exposed how capitalism displaced value from the physical labour and social relations of production to the site of the commodity itself. People become subordinate in their relations to ...