Loot

An appearance by the estimable Sharon Waxman at an SBMA Director’s Dialogue prompted a return to my thoughts on the issue of repatriation of stolen art. It also prompted me to read her 2012 book,

Loot

. There was nothing in the book that added to my previous understanding of the subject, formed by reading, several years ago, James Cuno’s

Who Owns Antiquity

, Anthony Appiah’s essay in the New York Review of Books and

Chasing Aphrodite

, the story of the Getty. Waxman writes as a journalist, and her perspective as an art outsider makes for a good introduction. To her credit, she recommends compromise and isn’t doctrinaire in her conclusions, although titling the book “Loot” is more heavy-handed than her writing.
More properly, “Loot” should have been followed by a question mark. We can all agree that “looting” is a bad thing, but any analysis must start with the question, “when does taking art out of a country constitute ‘looting’?” Let’s dispose of the easy situation where a robber breaks into a museum and takes an object; or when a tourist chisels a statue from a temple. That is looting, and no museum should accept or display an object acquired in that manner. Curiously, the guidelines of the Association of American Museum Directors (AAMD), when last I looked, did not prohibit acquisition of such an object so long as it was stolen before 1970! But my purpose here is to seek the right balance, not criticize the AAMD.
A larger category of “looted” objects are those taken in war. But the rules of war, to the extent such exist, surely countenance the appropriation of the wealth of the conquered land. That is what, for centuries, many wars were about. For what did the Spaniards conquer South America? Its gold. We can’t remake history – or if we try, where do we stop?
Then, with or without war, there were eras where one country ruled another. As such, it had every right to remove objects, art or otherwise, from the ruled country. The ruler made the laws. As long as an object was exported legally, how can we call it “looted”? The Elgin marbles, perhaps the most famous cause celebre in this field, were taken from Greece by authority of the Ottomans who ruled Greece at the time. If we are to say some laws don’t count, how, again, do we draw that line? When the MIA acquired an important Ife shrine head, it took the precaution of getting written acceptance of its purchase from the appropriate Nigerian ministry. What if there is a revolution in Nigeria and the new government rejects the authority of the prior administration and believes the Ife head should be returned to Nigeria?
The hardest case involves works appropriated from Jews by the Nazis. Let’s assume, as I believe to be the case, that the Nazis had passed laws permitting this appropriation and works taken from the Jews were taken in accordance with the laws of Germany. We may not like a law, but if a law is followed the act cannot be called “illegal” and the work thus taken should not be deemed “looted.” There may be other ways to address this situation, which I hope to get to later.
Another “legal” means of taking antiquities out of a country, which Waxman discusses in

Loot

, is the partage system that is responsible for most of the Egyptian antiquities in the Met and other western museums. Archaeologists from a foreign, advanced country would be allowed to excavate ruins on the condition that one-half of their discoveries would be given to the host country. The other half could be removed. Waxman points out the unfairness to the host country of this system: in the case of Egypt, it had no archaeologists of its own, and no one offered to train any; and the official overseeing the division of objects was appointed by the foreign country and often even a citizen of the foreign country, not Egypt. It was rank colonialism. But again, unless we are prepared to redo history in line with today’s values – and who determines those? – what other line can we draw other than the law as it stood in that time and place.
Proponents of repatriation (and this, by its guidelines, necessarily includes the AAMD) recognize values beyond mere legality. Italy, Egypt, China, Turkey, Kenya, Peru (and others) have all recently demanded the return of art objects from western museums because they are part of a country’s “patrimony,” regardless of how they came to be removed. This takes us to the basic question that must be addressed before any meaningful discussion of looting can occur. What gives a country the right to claim an art object? Is it because it was created there? Discovered there? Displayed or used there in a prominent manner? Or was it actually owned by the government of the country?
One problem with any of these bases is the distance between the claiming country and the originating country of 1-4 millennia before. Just because it shares geographic boundaries, which of course it doesn’t, why should modern Arabic, Islamic Egypt have special rights to the product of a people with no genetic, religious, linguistic or cultural similarities who lived thousands of years before? Nor had the new country accumulated an ownership claim by caring for, studying or incorporating these objects into its modern culture.
As Americans, we should have an even more basic problem with a foreign country’s claim: rights in America are based on private property. There is no art object that can’t be owned by a private individual, including the Declaration of Independence. The notion that something belongs to the US because it was created here, or discovered here, or displayed here for centuries is totally foreign. Why should we honor a vastly more possessive rule, one inimical to our values, claimed by a foreign jurisdiction? The only legitimate reason would be that this is the law of that country, and we should be ruled by law. In that case, though, if no law was broken in getting the object here, the foreign country has no rights. Either we play by the rules or we don’t: we can’t pick and choose which laws we will honor.
It is only by agreeing to ignore any legal framework and ignore the lack of connection between the claiming country and the land of origin that most of the repatriation discussions can occur. The primary reason that so many do occur is the equivalent of “white man’s guilt.” Maybe, using today’s moral standards, we shouldn’t have done the things that were done in the last century. Colonial powers should feel guilty that they lorded over people they considered “primitive,” and countries shouldn’t have invaded other lands just for their wealth or for the king’s aggrandizement. But if we throw out all history and legal considerations, we still need a basis to determine whether an object should be repatriated – and to where. What about the statue sculpted by a Greek sculptor in Greece on commission for a Roman nobleman whose family, a hundred years later, shipped it to their summer home in North Africa, where it was discovered a thousand years later and taken to France where it was displayed in the Louvre for a hundred years before it was lost in a war with Germany? Or the Spanish shipwreck containing gold from Peru recovered in international waters by an American company?
Why, when there are only four Greek vases in a Minneapolis museum serving the entire Upper Midwest, should one be returned to Greece, which has thousands that are not even on display? Should the test be where the most people would see an object? Where it would have the greatest educational impact? Where it would be best cared for? Where it could be given the proper context? And if you go down this road, who makes those determinations?
An idealist might propose an International Art Court, modeled on the International Court of Justice at the Hague, with revolving judges and a clear set of principles that had been agreed upon by all member nations. I don’t, however, consider this practicable – or even justified. In my view, the past was different, and the past is gone. Just as reparations for slavery, however well-meaning an idea, is impractical and not likely to solve anything, so repatriation of artworks – except for items demonstrably stolen, against the relevant law – should be resisted. As others have pointed out, the demands for repatriation generally arise not out of need, or even a concern for justice, but from base political motives. And for the most part, the parties against whom the claims are posted – the great museums of America and the world – are protecting the objects for future generations, making them available for study, and holding them for the public, not private gain.
Where does this leave me with respect to the hottest issue in today’s art world: claims of Jewish descendants for artworks that were lost by their ancestors to the Nazis. The provenance for each work is obviously different. In most cases, the art was purchased, often for a considerable sum, by someone who had no knowledge of the work’s Nazi past (in legal parlance, a buyer in good faith), and in many cases this innocent purchaser has given or bequeathed the work to a public museum, again without knowledge by either party of Nazi involvement. What should be done with this art? In my view, if Nazi law, however repugnant, allowed the appropriation of the art, then no law was broken and the original owner’s rights to the work, absent further legislation, end there. Provision should have been made, and perhaps was, after Germany’s defeat for artworks to be returned. Again, though, if there was a system for restitution set up and no claim was timely made, then the object could be disposed of according to the system and any subsequent owner should be entitled to keep it.
What are the rights of the descendants of a Holocaust victim vis-a-vis a public museum with respect to a painting that the victim owned before being forced to sell, at a distressed price, to the Nazis? In most cases, legally none. But morally? To my mind, the museum is devoting the work to a public good vs. the private gain the descendant seeks. Further, if the work had not been taken by the Nazis, what are the odds that it would have been kept until now in the owner’s family? More likely it would have been sold during the last 70 years for a fraction of its worth today. How can we even know that this descendant would have inherited the work? The descendant had no expectation of owning the work and has done nothing in his or her lifetime to earn it. By contrast, the museum (or its donor) has spent a considerable amount of money to purchase the work; it has probably spent more resources conserving, protecting, studying and displaying the work, and it is a public institution with a fiduciary obligation not to give away assets. In short, however unpopular my view, I believe museums should retain these works – which is not to say some acknowledgement should not be made of the work’s history, which puts me in line, at least, with one of Sharon Waxman’s definite conclusions.