March, 2000
Introduction: Perspectives
The framework of analysis for the study of cultural property, at least in the United States, was established by Professor John Henry Merryman of Stanford University. Professor Merryman posited in several influential articles, one of which is titled Two Ways of Thinking About Cultural Property, that there are, in fact, two ways (and only two ways) of thinking about cultural property, and this framework is often viewed as the starting point for any analysis of cultural property law. Professor Merryman labeled these two "ways" cultural nationalism and cultural internationalism. According to his characterization of cultural nationalism, cultural property serves to enhance national identity and to allow self-fulfillment of a particular community or nation. This view obviously leads to laws which restrict the free movement of cultural property. It also leads to what Merryman calls "negative retentionism"--that is the retention of cultural objects by particular nations that are unable to care for them properly, or to appreciate them sufficiently, or to pay for them what the international market demands.
The other perspective Professor Merryman labels cultural internationalism, according to which the purpose of cultural property is to increase the understanding of human civilization everywhere, but, paradoxically, according to this perspective, it is the object viewed in isolation that has the ability to impart this knowledge. Therefore, it does not matter whether the cultural object is located within a particular society or nation; in fact, it should be allowed to circulate freely and should be placed where the most people will be able to see it and learn from it. Obviously, cultural nationalism tends to disfavor the international art market, while cultural internationalism tends to favor the unregulated art market across national boundaries--although most proponents of this view do not generally consider whether the object ends up in a private collection, where it cannot be seen by many people, or whether it should be required that the object be placed in public museums and other institutions.
I suggest that this dichotomy between cultural nationalism and internationalism is, in fact, a false one and that it omits other values inherent in cultural heritage. Not only can both national and internationalist values be melded into a single approach, but other values should be incorporated into a perspective that embraces the unique characteristics of cultural heritage. This perspective is context-centered and focuses on the preservation of the archaeological and historical record in which cultural objects are found. The contextual approach encourages appreciation of the aesthetic value of objects, while at the same time enhancing human understanding, and it is this which demands a distinctive protective regime for antiquities.
For the archaeological and historical record of the world
comprises all vestiges of human existence and ... all manifestations of human activity, abandoned structures, and remains of all kinds ..., together with all portable cultural material associated with them. ... The archaeological heritage is a fragile and non-renewable cultural resource .... The protection of the archaeological heritage should be considered as a moral obligation upon all human beings; it is also a collective public responsibility. [ICOMOS charter]
Only carefully preserved, original contexts can furnish the data upon which the reconstruction of our past depends. Archaeologists study the past through the careful excavation of sites and the retrieval of an array of material culture with archaeological, historical, artistic, religious, cultural and aesthetic significance which offers evidence of a history otherwise lost. Archaeological sites range from large urban centers to single burials. The archaeologist excavates each layer of a site in reverse chronological order, regarding all remains of human activity as potentially valuable sources of knowledge. This process allows each object to be placed in its proper chronological sequence and in association with architectural features, such as houses, industrial areas, and burials. This, in turn, aids the reconstruction of each of a site's time periods, societal structure, culture, trade and living patterns, and the connections among sites located throughout the world. What is learned from the complete reconstruction of past societies and civilizations enhances our understanding and appreciation of modern societies and our own cultural development. The legal protection of archaeological sites, particularly against the devastating effects of looting, most often caused by demand in the illicit art market, is essential to maintaining this evidence of our histories.
This contextualized approach to our understanding of cultural objects is both internationalist and nationalist. Contextualism is international because it increases our understanding of the past, which is beneficial to everyone, all humankind. It is also nationalist because it may enhance understanding of particular cultures or groups found within the borders of modern nations. It has fallen to the nation-state to protect these physical remains through its legal regime, although neither the nation-state nor the legal regime has always been a perfect guardian of the past. Some international organizations, both intergovernmental ones, such as UNESCO, and non-governmental ones, aid in this preservationist effort. Voluntarism and public education also play important roles. However, because laws and their enforcement are the product of the nation, the nation remains the only entity with the ability to protect the physical remains of the past. While protective national laws are what some would likely categorize as the product of Aromantic Byronism, many nations today, including the United States, use them as one method to reduce incentives to purchase undocumented antiquities and thus prevent the looting and destruction of archaeological sites.