The global impetus to care for cultural heritage has never been as important as it is today. Cultural heritage as an area of concern – vital as it is for global peace,Footnote 1 sustainable developmentFootnote 2 and respecting the identities of peoplesFootnote 3 – has been recognised by international organisations such as UNESCO since the 1950s. In recent years cultural heritage has had an augmented role on the international political and legal stages; it has been the subject of UN Security Council Resolutions,Footnote 4 the first G7 Meeting on Culture took place in 2017,Footnote 5 UNESCO’s #Unite4Heritage initiativeFootnote 6 and 2018 saw the EU’s European Year of Cultural Heritage.Footnote 7
The need to respond to the modern-day destruction of cultural heritage objects and places during times of conflict and to stop the circulation of decontextualised objects has been a leitmotiv of the twenty-first century. Museums in possession of cultural heritage objects, of which the original owners lost possession during dark historical events, face difficult questions about justice across the generations. In times of austerity, some publicly owned cultural heritage may be at risk of sale to the highest bidder – with an attendant loss to communities for whom it is important. The continued public display of statues commemorating historical figures may harm modern-day communities. These different areas of concern and contestation illustrate just some of the problems with which national and international legal systems must grapple.
As individuals, groups, as a nation or as humanity, there are strong feelings towards cultural heritage due to the links with these communities’ history, religion or culture, often because it forms part of their identity. Harm to these objects, places and practices can cause harm to the community for whom they are important. However, harm can also be felt across borders, impacting communities or individuals further afield. International norms provide support for each individual’s right to take part in cultural life. However, decisions about the appropriate course of action, particularly where conflicting views exist about why cultural heritage is important to different communities, pose challenges for domestic legal and non-law regulatory initiatives.
This book is not simply about the monumental or the prized possessions of the internationally renowned museum, but rather it is about all types of cultural heritage within the UK, which may be important to communities for often very different reasons.Footnote 8 In some circumstances the law seeks to protect cultural heritage from harm, facilitates it being passed down the generations or provides access to it, but on other occasions the law passes by without affecting how it is cared for. Instead, policy guidance from government or non-governmental organisations, ethical obligations agreed by professional bodies and imposed on their members, or other civil society initiatives may ensure that objects, places or practices are cared for, and memories are not forgotten. It is for this reason that this book adopts an integrated approach. It examines the variety of initiatives, nested within each other as practices of care, which deal with cultural heritage. The book thus provides a window on the way in which the UK, as a community, a network of communities and as part of the international community, cares for cultural heritage.
1.1 Scope of Enquiry
Often the very different and difficult questions about cultural heritage are dealt with in disparate ways and form the focus of different enquiries.Footnote 9 The way in which the UK cares for cultural heritage through formalised mechanisms has, on occasions, been separated along artificial lines.Footnote 10 Yet, at the heart of all of these difficult questions is a desire to care for cultural heritage because we care about it.Footnote 11 By approaching all cultural heritage through the lens of assessing how it is cared for, one can see how communities (local, national or international) recognise its importance, how they enjoy it and how they fulfil any responsibilities to current and future generations.
This book will show how, by focusing on the multivocality of decision-makingFootnote 12 about how cultural heritage is cared for – through the multiple layers of law, formal guidance, ethical principles and civil society solutions representing nested practices of care – it is possible to navigate dissonance, in particular between conflicting viewpoints. By translating cultural heritage and its importance to different people into and out of legal language and engaging with how the instruments and decision-makers create communities of care, one can better understand the extent to which a community cares about cultural heritage and, in turn, cares for it. A central argument of the book is that the most appropriate way to analyse the extent to which cultural heritage is cared for is to focus on how legal and non-law (ethical) initiativesFootnote 13 provide the space to hear the different voices of the communities who care about cultural heritage – not only in decision-making in heritage management (following consultation), but also when resolving disputes about cultural heritage (when balancing different viewpoints) and seeking to resolve dissonance. These different activities of care, undertaken by varied communities of care, are analysed to determine whether the care provided by these nested practices of care is appropriate. Here, appropriate care is recognised as empathetic, respectful and dialogic. The book therefore seeks out the translations of the notion of cultural heritage and how its importance is imagined through embedding the human dimensionFootnote 14 of cultural heritage into decision-making by creating communities of care. This book therefore takes an interdisciplinary approach in the manner entreated by the Council of Europe’s Faro Convention on the Value of Cultural Heritage for Society of 2005.Footnote 15
1.1.1 The Centrality of Care
The justifications for approaching cultural heritage through the framework of care are set out in the next chapter, along with the particular definition of care and its central elements. However, here is an opportune place to explain why the concept of care, specifically within the context of the ethics of care, is an appropriate lens through which to examine cultural heritage.
Unlike Continental systems of law, some of which have heritage codes,Footnote 16 the UK’s system is multi-layered. It comprises commitments made in international law, national law (in the form of legislation, case law and local byelaws), and statutory and non-statutory codes of conduct and guidance, which all form nested practices of care. However, rather than adopting a regulatory approach investigating how the state and other institutions mandate appropriate treatment of cultural heritage, taking an approach based on care recognises the assumption of responsibility to look after something, particularly when it is at risk of harm. It therefore can take account of how people use the law and non-law processes as instruments to prevent harm to cultural heritage or to continue its use. Care, as an active process, which focuses on relationships and communities assuming responsibilities, provides an invaluable way of drawing together these varied systems.
The terminology of care is frequently used to refer to institutions having cultural heritage in their care.Footnote 17 However, the approach to care adopted in this book uses the term more widely to include how different viewpoints and needs are taken into account and how contested areas involving cultural heritage are navigated. These include grappling with issues of justice, memory and historical record, specifically responses to requests for restitution and the way in which cultural heritage is displayed and presented to the public.Footnote 18 Care therefore extends beyond preservation, truth and accessFootnote 19 and provides a dynamic framework which draws on law and other instruments to provide an holistic overview. Rather than pitting one person against another, the framework of communities of care set out here envisages respectful decision-making with participation and empathy, seeking to resolve dissonance.Footnote 20
1.1.2 Cultural Heritage Rather than Cultural Property
‘Cultural heritage’ is the subject matter of this book, in preference to ‘cultural property’. Adopting the terminology of ‘cultural heritage’ rather than ‘cultural property’ has several advantages. First, ‘cultural property’ frequently suggests the monumentalFootnote 21 – what might be described as ‘high culture’Footnote 22 – or those objects or places that a nation considers of vital importance.Footnote 23 It is infrequently used to refer to practices.Footnote 24 By contrast, ‘cultural heritage’ more fully reflects the varied ways in which cultural heritage is experienced and used. It therefore encompasses a greater variety of categories of objects, places and practices which a community might identify as cultural heritageFootnote 25 and which might not naturally fall within the categories of property.Footnote 26
A second advantage of using the language of cultural heritage is that ‘heritage’ incorporates the notion of inheritance or passing cultural heritage on to future generations.Footnote 27 This is ‘central to the force of the term cultural heritage’Footnote 28 and is reflected in UNESCO’s Declaration on the Responsibilities of the Present Generations Towards Future Generations under which present generations have the responsibility of transmitting our common heritage to future generationsFootnote 29 and avoiding ‘compromising it irreversibly’.Footnote 30
Thirdly, to some people the term ‘cultural property’ has political connotationsFootnote 31 which can side-track the debate by focusing on a nation’s appropriation of objects, places or practices for its own ends. It also has a strong legal meaningFootnote 32 and its incorporation of ‘property’ demonstrates disciplinary imperialism,Footnote 33 often revealing the author to be a lawyer; it is thus a ‘synthetic construction’.Footnote 34 Cultural heritage objects or places will often have the legal characteristic of being property, but that particular legal characteristic should not define the subject matter. It is putting the cart before the horse to call it cultural property. It may be that recourse is had to property rights and often it is difficult to avoid the property characteristic of cultural heritage (particularly when individual property rights are at odds with the public interest or communities’ views). Indeed, Lixinski argues that a shift away from property to heritage ‘has also had the (unintended) consequence of disassociating communities from heritage they live with or around, and for whose survival they are necessary’.Footnote 35 Whilst ‘heritage’ has a legal etymology in terms of inheritance,Footnote 36 and is indeed a term used to refer to land in Scots law,Footnote 37 the link with inheritance and passing down the generations is more closely aligned to the very characteristic which makes it cultural heritage – its intergenerational nature. It therefore avoids demonstrating a disciplinary imperialism to the same extent that referring to property does.Footnote 38 Certainly by using the word ‘property’ the focus of discussion frequently shifts to ownership, possession and allocation of resources, which can be unhelpful, leading to a dichotomy between, on the one hand, possessing or owning something, and on the other hand, not being able to do so. Cultural heritage, as a term, therefore ‘has less ideological baggage in tow’.Footnote 39 Labelling something as cultural property can unhelpfully give the impression of possessive individualism,Footnote 40 which again has implications where long-term decisions are made where custodians other than the originating communities have possession. Much ill feeling has been caused by institutions relying on their strict legal rights as property owners or lawful possessors to avoid addressing challenges to their continued retention of objects.Footnote 41 For that reason it is helpful to refocus attention on the subject matter itself rather than its legal status. It is clear that the notion of property within the concept of ‘cultural property’ has on occasions been interpreted in a restrictive, and sometimes unhelpful way, without acknowledging the varied types of property relationships that can exist.Footnote 42 It should be acknowledged that some works have attempted to focus on the more varied types of property including stewardship and property for personhoodFootnote 43 (as well as peoplehoodFootnote 44 and grouphoodFootnote 45). Despite these valiant attempts to reframe the subject matter within more creative forms of property rights, the term ‘cultural heritage’ still provides far more advantages for the reasons given here. The fourth reason for preferring the terminology of cultural heritage is that it also avoids what has been described as the ‘paradox’ of cultural property.Footnote 46 This refers to the paradox of combining the static nature of property – which assumes that something ‘belongs’ to a particular group – with the more dynamic nature of culture.Footnote 47 This, in turn, results in real difficulties in recognising the diverse nature of those forms of cultural heritage which evolve over time, on occasions with contributions from people from different cultures.Footnote 48
1.1.3 Cultural Heritage Rather than Heritage
At times reference is made to heritage in this book where the particular instrument or academic article uses the term, but the broad scope is concerned with cultural heritage, as distinguished from natural heritage.Footnote 49 At times there may be an artificial or indistinguishable difference between natural and cultural heritage, for example in the context of cultural landscapes,Footnote 50 but the primary discussion of this book will be cultural heritage and for that reason this terminology will be adopted.
1.2 The Importance of Cultural Heritage
Heritage, in its broader sense, has been described as ‘an influential force in society’Footnote 51 which is ‘deeply entwined with other aspects of our lives whether at an individual or a group level’.Footnote 52 It is ‘not something to dispose of as a commodity but integral to our lives’.Footnote 53 Cultural heritage is something beyond the ordinary. It is acknowledged that at its simplest it may be property – a place, an object – or it may be a practice. Yet, it has characteristics which make it much more difficult to treat it simply as property.Footnote 54 It has been described as ‘the contents of humanity’s social portfolio’.Footnote 55 Cultural heritage has a further role, specifically the importance that it represents to certain people.Footnote 56 This may be because of its importance for the individual, community, nation or humanity’s identity,Footnote 57 or there may be a significant link between cultural heritage and a place.Footnote 58 Cultural heritage is often said to have a significance which comprises different types of value.Footnote 59 It is therefore clear that cultural heritage has a significant human dimensionFootnote 60 which ‘brings to life community aspirations’.Footnote 61 The relevant community may be local, national, or international; cultural heritage can have a universal value which is recognised as a common heritage.Footnote 62 Even if communities have no first-hand experience of the cultural heritage, there may be a feeling of common concern for the heritage and a feeling of shared loss if that heritage is at risk of harm or is destroyed.Footnote 63 The Nubian campaign of 1959–1980 shows this. The active response from around the world, in an age without rolling news or social media to rally support to save cultural heritage from physical destruction,Footnote 64 showed the importance of the cultural heritage to others, even though these places and monuments may never have been viewed first-hand by those stepping forward to help. Due to the strong human dimension, it is therefore essential that the people(s) for whom cultural heritage is important are central to decision-making about cultural heritage.Footnote 65 The concern of those who care about and care for cultural heritage (and, in turn, cultural heritage law) is therefore not only the physical thing itself (most usually the object or place) but also the practice and the intangible element of cultural heritage.
1.2.1 As an Intangible Concept
Increasingly cultural heritage is treated as an intangible conceptFootnote 66 in the form of a ‘cultural practice, involved in the construction and regulation of a range of values and understandings’ rather than something promoting ‘a certain set of Western elite cultural values’.Footnote 67 It is ‘less of an objective, physical existence than the range of associations which accompany an object or monument and which provide the sense of being part of a group’.Footnote 68 ‘Cultural heritage is value’ rather than the object, place or practice. It is thus ‘ … the importance itself’Footnote 69 and legal regimes aim to protect this importance. In essence ‘it is the significance of the expression in the social life of a community that is, or should be, the policy focus of heritage protection, according to contemporary wisdom’.Footnote 70 For it is the human response to objects, places or practices which justifies our particular treatment of them and thus the intangible dimension of themFootnote 71 and in particular the desire to protect them from harm, which can be understood as the adoption of a functionalist approach.Footnote 72 Contrastingly, Lixinski suggests that both the tangible and intangible elements of cultural heritage are relevant and advocates an holistic approach, taking account of both the tangible and intangible elements and their interplay.Footnote 73
1.2.1.1 The Centrality of Participation and Communities
Given the recognition of the human dimension to cultural heritage, participation of communities is central to the way in which cultural heritage is cared for. This reflects another shift away from focusing on traditional Western notions of preserving the tangibleFootnote 74 towards cultural practices. This is recognised in professional codes of ethics in their focus on the participation of stakeholders.Footnote 75
The prevalence of experts in the care of cultural heritage was emphasised by work identifying the authorized heritage discourse.Footnote 76 Broader communities are, however, central to the care of cultural heritage. This extends beyond well-meaning amateurs who might assume responsibility for its care, for ‘Heritage can play a key role in communities, for example, by encouraging civic pride and in shaping identity. In order to interpret and preserve local history effectively it must be contributed to, contested and explored by the wider community and not kept within an enclave of heritage enthusiasts.’Footnote 77
It is important to have mechanisms which facilitate the communities of discourse surrounding cultural heritage and which permit, through multivocality, the resolution of dissonance relating to cultural heritage, thereby creating effective communities of care.Footnote 78 Central to appropriate care for cultural heritage is providing the space for dialogue and for balancing the various viewpoints of the different stakeholders for whom the particular cultural heritage is relevant. Consultation and dialogue are necessary for ‘incorporating the multiplicity of interpretations of … heritage’ and should include marginalised communities.Footnote 79
1.2.2 Caring about Cultural Heritage Because of Its Importance
Since cultural heritage is important, communities care about it. The concepts of care, more generally, and specifically caring about will be explored in Chapter 2. Suffice it to say, for present purposes, because cultural heritage is recognised as important due to its human dimension, communities care about it for a variety of reasons, particularly where there is risk of harm to it. This can result in a desire to take direct or indirect action by caring for it. However, risk of physical harm is only one of several areas of contestation which are explored in the next section.
Caring about cultural heritage is different from valuing it. Valuing can be undertaken quite objectively, in a non-emotional manner. Caring about something is having a feeling towards it – a disposition – which may result in a need to do something or to care for something, either directly or indirectly. Decision-makers or lawmakers may care about something but their reason for caring about it is different from communities for whom the cultural heritage is part of their identity.
Caring for cultural heritage is a process, in response to caring about it. It differs from merely preserving it, providing access or seeking the truth. Care, in the context of cultural heritage, may involve either action or inaction such as curated decay.Footnote 80 It may also require keeping it away from the public rather than giving access where its importance is sacred or secret. Care includes the use of cultural heritage and sustaining people’s relationships with it, encouraging and facilitating its use as part of a culture. It may also involve explaining an object’s history or dealing with the way in which it is displayed. Care is thus an all-round activity concerning cultural heritage. As part of the process of caring it is necessary to navigate the various areas of contestation in which cultural heritage finds itself.
1.3 Areas of Contestation
Cultural heritage is not neutral, and for some it is inherently dissonant.Footnote 81 The previous section has shown the importance of cultural heritage to communities in varied ways which, at times, conflict with each. Rather than talking about ‘contested cultural heritage’,Footnote 82 which implies that the cultural heritage itself is contested, the terminology of areas of contestation is adopted to refer to those instances where different people object to the ways in which cultural heritage is envisaged, used or at risk of harm.Footnote 83 Contestation is taken to mean a social activity that ‘entails objection to specific issues that matter to people’Footnote 84 and this more fully represents the broader way in which cultural heritage exists in communities.
The areas of contestation in the UK identified here fall into three broad categories. The first is how cultural heritage is imagined, translated into and out of law, and designated (including through the medium of listing). The second area is how to navigate the risk of harm or loss to cultural heritage (both to its tangible manifestations and also the intangible element of cultural heritage). The third area relates to the role played by cultural heritage and its communities of care in seeking and providing justice and memory. These areas of contestation contrast with other approaches to what has been described as the ‘cultural heritage predicament’.Footnote 85 For example, Nafziger and Paterson have identified ‘three dimensions’ to this – ‘conquest, colonialization, and commerce’.Footnote 86 These are helpful categories when considering the international framework relating to the care of cultural heritage (and were in fact raised in the context of the UNESCO Conventions).Footnote 87 Many of the areas of contestation identified here can be filed under Nafziger and Paterson’s three headings, but several elements of contestation at the national level cannot be. The interests of the varied communities, the reasons for which they care about cultural heritage and their desire to actively care for cultural heritage are overlooked in their categorisation. Local communities may be faced with a risk of harm to cultural heritage from a proposed redevelopment without commerce at its heart. The community’s concern may also be grounded in community values rather than commercial ones and be focused on seeking a role in the decision-making process relating to the care of cultural heritage. The care of finds of archaeological interest cannot be said to have conquest, colonialisation or commerce at their heart, but a community’s concern may be based on the quest for knowledge or on a desire to connect with the past.Footnote 88 Cases involving private owners’ use of their cultural heritage will not necessarily involve questions of commerce, but rather a balance between public access and private enjoyment of property.
Each area of contestation will be considered in turn.
1.3.1 Imagining ‘Cultural Heritage’: Translation, Designation and Dissonance
It is difficult to provide a concise yet comprehensive definition of cultural heritage. Often one knows heritage when one sees itFootnote 89 – for few people would disagree that the ruins at Palmyra represent cultural heritage. Even those who seek to destroy it understand it to be someone’s cultural heritage, if not theirs. A certain level of international consensus can be reached about the sorts of objects, places and practices that are our own cultural heritage, or that of other communities. Often it may not be necessary to grapple with definitions or to classify something as cultural heritage until it is at risk. Only then will it be important whether something ought to be treated as cultural heritage and receive enhanced levels of care because of its legal status.Footnote 90
Contestation can arise where laws or other devices with a degree of moral enforceabilityFootnote 91 seek to designate cultural heritage as being set apart from other property and worthy of particular care. The first issue is – what is designated? Who makes the decision about what is designated and for whom is that decision made? What are the implications of designation? An essential element of this is the role that communities play in the process. This includes being consulted not only about designation but also about the effect of their views on final designation. Here the themes of consultation and participation play key roles. Certain things may only need a legal designation as cultural heritage or one of its synonyms temporarily – for the purposes of a particular process such as export or being assumed into public ownership.Footnote 92
The act of designation may affect both the communities for whom it is important and the cultural heritage itself. There are both dark and bright sides to formal designation of cultural heritage;Footnote 93 designation as a World Heritage Site can increase tourism, but at the same time negatively affect the resident communities.Footnote 94 For that reason communities need a central role within the selection and designation process.Footnote 95
Cultural heritage is not solely imagined in legal terms through formal legal designation in what has been described as ‘official heritage’.Footnote 96 How the courts approach cultural heritage and imagine it in case law, particularly when dealing with non-heritage law principles, provides a window on to how the UK cares for cultural heritage. Frequently, cultural heritage disputes involve difficult questions – so-called ‘hard cases’.Footnote 97 Clear, unproblematic answers to the legal questions may be difficult to find, particularly when applying principles such as private property. Therefore, the observation that in case law it is likely that ‘a range of culturally possible results’Footnote 98 will arise ‘among which choices will have to be made by lawyers and by judges’Footnote 99 is particularly relevant. Yet, one should not see such a ‘multiplicity of readings’ as a weakness, but recognise that it is ‘its strength, for it is this that makes room for different voices, and gives a purchase by which culture may be modified in response to the demands of circumstance’.Footnote 100 This appreciation of the, at times, messiness of law means that cultural heritage can be translated in many different situations and in many different ways in case law; dualisms such as ‘official’ and ‘unofficial’ heritage are therefore difficult to reconcile with this.Footnote 101 Furthermore, it is not simply law that acts in an ‘official’ way; a plethora of guidance and codes is published by government departments, NGOs and other heritage organisations which all contribute to translating and designating cultural heritage with a view to caring for it. These various ‘nested practices of care’Footnote 102 and the way they use the label of cultural heritage or one of its synonyms are explored in Chapter 4.
1.3.1.1 Difficulties with Cultural Heritage and the Risk of Including Too Much
Cultural heritage, whilst important to communities for a variety of reasons, should not be assumed to be intrinsically good.Footnote 103 Objects, places or practices which might qualify as cultural heritage, but for some problematic characteristics, will need to be considered critically, particularly if their initial labelling as cultural heritage or their continued treatment leads to enhanced levels of care which may be offensive or problematic for some communities. Such problematic characteristics might originate from the very nature of objects, places or practices – for example, if they are made of human remains, although this will depend on context. Equally, the prior use of a place as a concentration camp or other places of mass atrocities may be difficult to navigate as cultural heritage places. Where recognising something as cultural heritage gives it an enhanced status in law which may ensure its protection from harm, it is important that objects, places or practices that are, either by their nature or in practice, patriarchal or which infringe human rightsFootnote 104 are critically analysed before being admitted into the category of cultural heritage.Footnote 105 This is irrespective of whether this is by means of hard or soft laws or through other non-law initiatives.Footnote 106
One consequence of taking a broad approach to the designation of cultural heritage, rather than adopting a narrower category of cultural property,Footnote 107 is the risk of admitting a great deal into the scope of protection.Footnote 108 This potentially leaves too much to care for, which risks an abundance of heritage.Footnote 109 Careful collections management is therefore necessary,Footnote 110 as is revisiting formal designation of heritage places over time to consider whether the listing is still appropriate, or whether a place should be delisted.Footnote 111 A central element of care is revisiting its appropriateness, as well as revisiting the question of who has responsibility for that care.Footnote 112 As part of this re-evaluation, the scope of what is cared for and the necessity for the extent of its continued care will be relevant. Ethical issues may also arise where cultural heritage may become associated with a particular organisation or person through sponsorship of the particular collection of cultural heritage or the institution in which it is held.Footnote 113
1.3.2 Recognising the Communities for Whom Cultural Heritage Is Important
As part of the designation process, it is necessary to focus on the importance of cultural heritage for a range of different communities. At times certain communities may be marginalised and not considered as part of the decision-making about cultural heritage. This can occur where local communities living within a proposed World Heritage Site are not consulted about the decision to designate it as being of universal value. In other cases, if objects were taken during conflict and times of colonisation and have subsequently passed across borders, the communities from which they originated may be located many miles away from a museum where an important cultural heritage object is now housed. Where those communities have changed over time there may be difficulties in not only recognising the place or community from which cultural heritage originated and for whom it is important but also recognising the voices of those communities.
1.3.3 Assuming Responsibility for Care
In addition to the need to involve communities for whom cultural heritage is important, determining who should assume responsibility for the care of cultural heritage in the future is also an area of contestation. This is particularly challenging where cultural heritage objects were acquired by force or through subjugation of communities who now wish to challenge the rights of the current possessors. A significant area of contestation is where care is paternalistic,Footnote 114 where the presumption is that experts or the current possessors are the most appropriately placed to provide direct and continued care.
1.3.4 Reacting to Threats of Harm and Loss
A further area of contestation is the need to navigate actual or potential harm and loss of cultural heritage. This includes not only physical harm but also intangible harm as experienced by communities, including loss of information or association. When dealing with harm, questions arise about how to navigate the public/private divide. Often assumptions are made that public rather than private ownership of cultural heritage is the most appropriate means of providing care. However, an element of appropriate care, as identified in Chapter 2, is that it is dialogic. Communities are therefore central to decision-making processes to ensure that any shift from the private to the public domain is appropriate in the circumstances.
1.3.4.1 Desire to Pass Cultural Heritage On to Future Generations and Averting Physical Loss or Damage
Irreparable physical harm can occur because of direct damage or destruction, during peacetime or wars. Destruction of cultural heritage during wartime has a long history. Although often entailing outright destruction or physical harm, harm can also involve removal to other places, with attendant loss to the dispossessed community. Suppression of cultural practices is also a significant tool of oppression against communities, often taking place as part of colonialism.Footnote 115
In times of peace, destruction or harm can be intentionally caused to both cultural heritage places and objects. This can include vandalism, theft, unlawful excavations or unlawful work to a building (whether or not by its owner).Footnote 116 Destruction can also be accidental, resulting from damage from fires or natural disastersFootnote 117 or through deterioration. Damage may also result from poor restoration,Footnote 118 including over-cleaning or over-painting, which may even change the work itself. Harm may also be caused by neglect caused by a failure to undertake quotidian care.
Development projects such as major infrastructure programmes also pose a risk of destruction or harm to cultural heritage places and their settings.Footnote 119 Harm may therefore be sanctioned in the name of sustainable development; in such circumstances efforts will often be made to mitigate this harm.Footnote 120
1.3.4.2 Maintaining Associations between Objects, Places and Practices
Losses also include intangible loss such as loss of context where archaeological objects are unearthed and removed without proper cataloguing of the find site.Footnote 121 The illicit trade in cultural heritage objects is of worldwide concern and can fuel looting of cultural heritage places, further harming them. Not only does the loss of information harm the historical record, but there can also be disfigurement of statues and monuments with irreparable physical harm to places.
Intangible loss is also occasioned where an object is removed from its original location, or where objects forming a collection are dispersed. ‘Collections’ as a concept require caring for on the basis that individual objects have been brought together and now form a coherent whole or a ‘new creation’.Footnote 122 The collection might represent a unique example of a particular style or period, an encyclopaedic collection, or if they were created by a particular person, demonstrate their collecting habits or a particular period of history. The sale of, or irreparable harm to, an object which is an element of a collection can cause harm to the entire collection. As well as the loss of association and the harm to the communities for whom the cultural heritage collection is important, aesthetic or scholarly consequences may also result from separating a collection, described as ‘the aesthetic equivalent of physical dismemberment’.Footnote 123 Yet, this needs to be balanced with claims for the return of cultural heritage objects which, whilst being elements of that ‘entity’, may have been taken from their original owners, or from the community from which they originated and for whom return is important.
1.3.4.3 Avoiding ‘Loss’ to a Community or Nation: The Threat of Physical Relocation and ‘Saving for the Nation’
A further risk of loss at the national level is where a cultural heritage object, considered of importance to a nation or locally, is at risk of export abroad and the public would no longer be able to access it in the UK. The rhetoric surrounding this is usually that of seeking to ‘save the object for the nation’Footnote 124 even though the object may have previously been privately owned and the public have never before gazed upon it. This area of contestation is not concerned with the potential physical destruction of the object or indeed with the destruction directly of the intangible element of cultural heritage. Rather, the loss of access by the national community to the physical thing is central. The system thus focuses on possession. Similar concerns about the risk of loss may be felt where plans are made to sell a cultural heritage place or to cease using somewhere for a cultural heritage practice or particular industry. In response, efforts may be made to ‘save’ it from private sale and development and instead to keep it for a community’s use.
1.3.5 Justice and Memory
Cultural heritage can be a symbol of injustice if claims to it are unresolved and wrongs unacknowledged. Return of an object, compensation or acknowledgement of past wrongs can be a significant symbol of justice.
Over the years, cultural heritage objects may have been removed from their places of origin. Occasionally there is a clear history setting out the object’s journey from creation to its current location. An artwork with a clear provenance (ownership history) recording all transactions from the artist’s studio to the current owner represents the ideal situation. However, in some situations the legal history of an object is far less clear. Acquisitions may not have been clearly legal or indeed ethical – either at the time or according to modern mores. Private collectors and museum collections may have been the beneficiaries of wrongdoing, even if not directly responsible for that wrongdoing. When it comes to privately owned objects, particularly where the current possessors have acquired legal title under statutes of limitation, claims will need to be resolved privately between the parties, as the claimants would have no legal claim.Footnote 125 Yet, there are views that museums, tasked with ensuring the public trust in their activities,Footnote 126 have obligations (regardless of the legal position) to act and to respond ethically to claims made by those previously wronged.
Key areas of contestation involve cultural heritage that was either taken forcibly from persecuted groups during the Nazi era, or where the owners had no choice but to transfer the cultural objects. Where these objects come to light, in sales, private collections or museums, claims may be made against the current possessors. In other claims lineal descent is less obvious, where broader communities rather than families claim objects. During the long and troubling history of British colonialism, objects were seized without permission;Footnote 127 such objects are still in the UK both in private and public ownership.Footnote 128 Some of these were acquired during punitive expeditions (for example at Maqdala and the Kingdom of Benin) or during colonial rule and subsequently appeared on the art marketFootnote 129 or are housed within museums. Other objects of sacred significance to particular communities, including human remains, were bought, stolen or traded, often in the context of unequal power relations. Modern-day claims are important for the identity of communities.Footnote 130 Many arguments for return can be made on the grounds of interference with cultural rights.Footnote 131 Counter arguments are made about the need to retain universal collections which represent a common heritage. Allegations are also made that repatriation requests may be political in nature and not represent the best long-term response.Footnote 132
Controversy surrounds instances of cultural appropriation,Footnote 133 which can take a variety of forms. This may be the misappropriation of a cultural practice which is then appropriated by another community, or used for tourism without the permission of the community from which it originates. Cultural appropriation can include the commercialisation of symbols used by communities for sacred reasons or the incorporation of these into other artworks.
As discussed above, in the context of designation, certain things associated with troubled histories are difficult to navigate in the context of the care of cultural heritage. Contestation surrounds not only designation but also how these objects, places or practices are cared for, including how they are displayed. Particular problems derive from statues of those involved in slavery or other colonial activitiesFootnote 134 whose continued display also involves commemoration or memorialisation and can cause difficulties for present generations.
1.3.5.1 Inherently Dissonant Disputes: Tangible Difficulties
These – often multifarious – claims bring with them the difficulty of balancing competing interests. Seeking to resolve these is no easy task and navigating these often involves taking account of moral as well as legal considerations.Footnote 135 Past injustices and differences of opinion can be entrenched and make the task of resolving seemingly incompatible disputes difficult.Footnote 136 As Scarre and Coningham observe, it would be naïve to assume that disagreements about cultural heritage can be resolved ‘with a modicum of mutual understanding and good-will’.Footnote 137 As they rightly point out, it is possible to reach differing conclusions whilst remaining reasonable simply because the parties’ starting points are different.Footnote 138
It is important, though, to acknowledge the dissonance involved with cultural heritage and to engage with the various communities of discourse involved to help navigate this.Footnote 139 Doing so is essential to the way in which to appropriately care for cultural heritage and those for whom it is important by assuming responsibility for the care of cultural heritage through communities of care. The framework of care is set out in Chapter 2.
1.4 A Word on Methodology
Inspired by James Boyd White’s treatment of law as language,Footnote 140 which invites us to read law with humility,Footnote 141 this book seeks to avoid abstracting single principles from decided cases.Footnote 142 Instead, it analyses how legal instruments and decision-makers translateFootnote 143 notions of cultural heritage and the need to care for it. By so doing one can assess how a community cares about and cares for cultural heritage.Footnote 144 Where difficult decisions are made about the long-term approach to caring for cultural heritage (essentially its fate) the analysis will consider how decision-makers take into account the range of voices from communities in the decision-making process.
Various authors have analysed heritage through critical discourse analysis (CDA).Footnote 145 There are overlaps between the current, rhetorical approach which deals with legal instruments and the way in which CDA treats those same instruments. The latter frequently focuses on the power relations involved. As Harrington et al. observe, CDA focuses on how ‘cultural forms represent, conceal and reinforce power qualities’ and has contributed to a rhetorical analysis.Footnote 146 They also point out that CDA has a certain structuralism which looks at the large scale over long periods of time.Footnote 147 Contrastingly, adopting an approach which focuses on the way in which language and rhetoric are used on a smaller scale allows a more specific analysis of how cultural heritage is imagined in specific contexts within UK legal and non-law instruments.Footnote 148
Rather than focusing on the link between power relations and discourseFootnote 149 and how this serves to perpetuate the authorized heritage discourse,Footnote 150 suppressing other voices, the aim of this book is to consider the way in which attempts have been made to construct notions of heritage and to provide rhetorical communities of discourse.Footnote 151 This allows one to see how the human dimension of cultural heritage is placed within the legal and non-law devices. This approach helps to untangle when communities of care are created and how they assume responsibility for the care of cultural heritage. As part of this one can appreciate the multivocalityFootnote 152 involved in the process.
Typically a legal text is a coercive one – compelling or commanding its reader either directly or indirectly.Footnote 153 However, by treating law as a languageFootnote 154 and as a culture of argument and interpretation one can interpret the legal (and non-law) texts in an ethical and relational manner with an appreciation of the cultural context in which they are interpreted,Footnote 155 thus linking closely with the act of caring for cultural heritage, which is relational in nature.Footnote 156
1.4.1 Law, Language and Interpretation
Law and literature are closely intertwinedFootnote 157 and both ‘rely on symbols and myths, use rhetoric in a constitutive fashion and shape reality through language’.Footnote 158 This closeness is particularly relevant to the law dealing with cultural heritage. Language and linguistic devices play a significant role when discussing cultural heritage, on occasions stifling meaningful debate and development of the law, specifically surrounding restitution and repatriation claims. These ultimately hamper the appropriate care of cultural heritage. It will be seen in Chapter 9 how the Myth of the Marbles looms over debates about restitution, and rhetoric such as ‘rightful owners’ and ‘saving for the nation’ play central roles in the UK’s care of cultural heritage.Footnote 159 Narratives and analogies, as linguistic devices, also affect how the UK cares for cultural heritage.Footnote 160
Interpretation of any text is no straightforward endeavour, for frequently there will be sufficient ‘real ambiguities and uncertainties’ to suggest that there is an observable meaning which could be ‘demonstrated in some quasi-scientific way’.Footnote 161 There is therefore real scope for interpreting instruments in a variety of different ways. One way is to be overly formalistic and literal. An alternative approach – and that adopted here – is to interpret legal (and non-law) materials by focusing on the human element.Footnote 162 By this means it will be possible to appreciate the way in which the notion of caring for cultural heritage is expressed and effectuated in the various instruments that form the corpus of discussion, referred to as nested practices of care.Footnote 163
Law can be used as a ‘powerful instrument of empire, denying humanity and trivializing human experience’.Footnote 164 In a field such as cultural heritage, so affected by empire, it is important to be alert to the way in which law, specifically retentive museum governing statutes, has been used to stifle debates or challenges to the status quo. It is also necessary to recognise how the rhetoric of the ‘universal museum’ is used to justify continued retention of contentious objects.Footnote 165 Yet, Boyd White acknowledges that ‘on the other [hand], it can be an important way – perhaps our best way – of seeing, recording, resisting empire’.Footnote 166 Where claims are made within frameworks of ethical norms, these can act as mechanisms which can resist empire.
1.5 Matters of Terminology
1.5.1 Communities, the UK as a Community and as a Network of Communities
Although there are some disadvantages to adopting the terminology of ‘communities’ which will be explored further in Chapter 5, it is nevertheless helpful to use this terminology to describe the extremely varied groups of people who care about and care for cultural heritage. Such communities exist at very different levels, from the international communities down to the very small communities of families who care about cultural heritage for quite personal reasons. The focus of this book is on the UK as a community, as a group of four national communities, as a member of the European and international communities.Footnote 167 However, the UK comprises smaller communities within the four nations, many of whom care about and care for cultural heritage directly. This book treats communities as a sufficiently wide enough concept to incorporate these varied communities, as well as the communities of Parliament, as lawmakers and developers of policy, but also the courts and other institutions which care about cultural heritage and care for it which act in a similar capacity acting as communities of care.
The approach taken here then is wider than the Faro Convention’s definition of heritage communities and wider than approaches which focus on Indigenous or local communities.Footnote 168 It takes heed of reservations regarding the adoption of the word community.Footnote 169 It does not prioritise any single individual community over another. Instead, it recognises that they exist in all manner of shapes and forms with a certain ‘messiness’.Footnote 170 By adopting such an approach it is hoped that this makes visible all the different ways in which care is provided for cultural heritage. It shows how these varied groups – forming communities of care – make use of legal and non-law instruments (representing nested practices of care) and assume responsibility for the cultural heritage that they care about.
1.5.2 ‘Care’ in Preference to ‘Safeguarding’
Blake has expressed a preference for the terminology of safeguarding rather than protection and points out that rather than focusing on the ‘more negative sense of “protection against” … safeguarding implies taking positive actions to foster the heritage, its holders, and the context in which it is developed’.Footnote 171 However, the concept of care moves beyond the activity and action that need to be taken which are reflected in the term ‘safeguarding’ – which may well be positive ones – to encompass as well why people have strong feelings about cultural heritage, the use that they make of the cultural heritage as well as the response to this that might need to be taken to ensure that that use is maintained.Footnote 172 It also focuses on the element of sustaining relationships about it. Care thus focuses on the entire process rather than the activity that needs to be done (which could be described as the normative response).
Although ‘care’ of cultural heritage is only occasionally found in legal instruments,Footnote 173 nevertheless it permeates many aspects of cultural heritage (as will be discussed in the context of the frequent reference, often without further analysis, to care).Footnote 174 By contrast, safeguarding, as a concept, has been found predominantly in the context of intangible cultural heritage.Footnote 175
1.5.3 Civil Society Initiatives and Public Participation Initiatives
‘Civil society’ has been described as ‘the area between citizen and parliament politics’Footnote 176 which, by its nature, presumes ‘a background of some degree of caring relations rather than of merely competing interests’.Footnote 177 Drawing on the UK government’s definition of ‘civil society’, the general term is understood here to mean those organisations, individuals or initiatives which are outside state control but which create social value.Footnote 178 The particular social value of interest here relates directly to the care of cultural heritage.Footnote 179 Civil society initiatives play an important role in the care of cultural heritage, facilitating communities coming together and actively assuming responsibility for the care of cultural heritage places, objects and practices through making use of legal devices to structure their organisation. This includes the use of charity law. Potentially this is an enormous, unwieldy category of materials to consider even solely within the UK, and so specific focus will be placed on the narrower category of initiatives which link directly (or interweave) with the legal framework of dealing with cultural heritage and which contribute to the way in which cultural heritage is cared for.
It becomes apparent, though, that certain initiatives have a measure of state control through funding and are thus not entirely independent. They would therefore not strictly be considered civil society initiatives,Footnote 180 but operate in such a way as to engage communities in participation with cultural heritage. Examples include the Portable Antiquities Scheme, the Enriching the List initiative and the Register of War Memorials, all of which are funded, in part, by central government agencies. Therefore, in the context of this book the alternative term ‘public participation initiatives’ will be used to refer to initiatives which seek to engage communities in participation in heritage practices, whether this is through active participation and engagement or participation in the decision-making processes and regardless of whether these initiatives are organised by government departments or NGOs.
1.5.4 National and Non-national Museums
Unlike some European countries, UK national museums are not formed of state-owned collections.Footnote 181 National museums are those in receipt of direct government funding and usually governed by legislation and a board of trustees.Footnote 182 They have a stronger sense of inalienability than non-national collections because the governing statutes of national museums usually include provisions curtailing their powers of deaccessioning objects.Footnote 183 On the other hand, the structure of non-national museums are varied, established using a range of legal devices.Footnote 184 These include charities, which are subject to charity regulation and need to have a public benefit. Others are established as private trusts. The 821 local authority museumsFootnote 185 have differing legal structures, with some collections forming part of the assets of the local authority, which can lead to tensions in times of austerity. University collections may have been established separately as trusts, although others may form part of the assets of the University and are thereby governed by the institutional legal structure.
1.5.5 The Jurisdictions
Some cultural heritage legislation applies across the UK, whilst some applies only to an individual nation. In addition, separate case law will be applicable to Scotland and to Northern Ireland as compared with England and Wales.
Ecclesiastical law applies solely to the Church of England and forms a particularly rich body of jurisprudence caring for cultural heritage. Although few disputes about cultural heritage reach the secular courts, all sales of ‘church treasures’ and alterations to listed churches are considered by the Church of England’s consistory court.Footnote 186 Other churches across the nations make decisions about cultural heritage through the ecclesiastical exemption found in the listed building legislation or sales of church treasures, and aspects of these jurisdictions will be analysed. However, many of these decisions are made at the local level and do not form a body of principles as developed as the Church of England ecclesiastical law.
1.6 Adopting a Doubly Integrated Approach to Law
This book does not presume that law is the answer in the search for the most appropriate means of caring for cultural heritage. Regulation in this area of law can be problematic and litigation has been described as a flawed mechanism in the context of cultural heritage disputes.Footnote 187 For that reason, this book adopts a doubly integrated approach. First, it treats all cultural heritage on the same basis – regardless of whether it is tangible, intangible or involves places, objects or practices. Preventing harm to cultural heritage places, objects or practices, stolen art, heritage crime, illicit trade in looting, Nazi-looted art, deaccessions and repatriation are dealt with holistically. A community’s compunction to care for cultural heritage means that something ought to be done – and what may be appropriate to be done (and who has responsibility for doing it) may differ between those contexts. Yet the fact that communities care about cultural heritage and wish to care for it, either directly or indirectly is a common thread throughout these disparate areas. The subsequent chapters analyse how processes that are in place meet the need for such normative responses and provide such care. Thus, the aim is to break down conceptual barriers to look at how decisions about these important objects, places and practices are addressed across the spectrum of cultural heritage.
The second aspect of the integrated approach is that of blurring the line between the legal and non-law initiatives which support communities who care about cultural heritage and provide care for it. This includes how notions of cultural heritage are transformed into the legal sphere and also into those instruments without the force of law, but which serve to care for cultural heritage.Footnote 188
1.6.1 Providing a Complete Window on a Community
The way in which the law treats something can go a long way to demonstrating how a community views it.Footnote 189 But that is not the full picture. Whilst the law goes some way to caring for cultural heritage and ensuring that it is not wilfully destroyed, dispersed or diminished, the UK also relies on other non-law instruments which mandate how either a limited category of people (in the case of professional organisations) or a wider group (in the case of formal government guidance) treat cultural heritage.Footnote 190 Furthermore, civil society initiatives facilitating public participation in cultural heritage and decision-making about cultural heritage also contribute to the creation of a fuller picture of how the UK cares for cultural heritage.Footnote 191 Public participation initiatives organised by government or NGOS with government backing also add to this.
These decision-makers may be at the community or local level or in particular institutions. Museums will be faced with curatorial decisions relating to acquisition, lending and disposal, the placement of cultural heritage (including who possesses it), who has access to it, who decides what happens to it and who participates in the decision-making process. How disputes are dealt with, and how dissonance is navigated (specifically how cultural heritage is translated in these circumstances), is central to a comprehensive understanding of how cultural heritage is cared for by any community – here, the UK. How decision-makers approach the decision (e.g. how they respond to claims for restitution or how they engage with communities and the public more broadly) as well as how they reach their ultimate decisions demonstrate their care for cultural heritage and how the UK, in turn, cares for cultural heritage. Furthermore, an assessment of the way in which a community cares for cultural heritage also involves analysing how that final decision is justified or audited whether through judicial review or some other mechanism through which to challenge or appeal the decision. Whilst these different non-law instruments and decision-making communities of care do not represent or make use of binding legal principles, these mechanisms do provide an important way to care for cultural heritage, but the authority of these communities and the enforceability of these instruments and decisions will be considered carefully when analysed.
1.7 Conclusion
The integrated approach to caring for cultural heritage adopted in this book avoids taking a myopic view of heritageFootnote 192 by focusing on individual areas of contestation. It looks beyond particular groups of interests (such as international, national or community),Footnote 193 but instead takes a holistic approach. It considers how communities of care are created and developed, enabling us to understand the way in which a community (here the UK) cares for cultural heritage through law, policy, ethics and practice. Using the framework of caring for cultural heritage, it focuses on developing and sustaining relationships, acknowledging and accepting responsibilities, ensuring mutual respect, trust and empathy, providing the space and willingness to navigate (and resolve) dissonance, providing the space and willingness to respond to actual or threatened harm and facilitating the flourishing of cultural heritage.Footnote 194
As a methodological approach it draws on the work of James Boyd White to analyse the acts of translation of cultural heritage and care into legal language to consider how the UK provides the space to recognise the importance of cultural heritage through meaningful consultation to facilitate consensus. It thus seeks to avoid the authorized heritage discourse and legal disciplinary imperialism, but instead focuses on the communities of care which develop to care for cultural heritage.
The book is separated into three parts, each of which represents one of the broad areas of contestation involving cultural heritage identified in this chapter. The individual chapters within each part look at specific areas of contestation relevant to the UK and for each of these areas the key elements of care are considered and the extent to which these are reflected in the legal or non-law initiatives in the UK are analysed.
Part 1 examines how cultural heritage is imagined and translated in the UK. It starts in Chapter 2 by setting out the framework of care adopted in this book and identifying the key elements of appropriate care, being respectful, empathetic and dialogic. In the next chapter, the various legal and non-law instruments and civil society initiatives in the UK, recognised as nested practices of care, are identified and analysed. Chapter 4 considers the various ways in which cultural heritage is directly translated in law and explores how the human dimension to cultural heritage is recognised and helps to establish the UK’s overall approach to caring for cultural heritage.
Part II focuses on how the UK cares for cultural heritage through encouraging flourishing of cultural heritage and averting irreparable harm and loss. Chapter 5 explores the way in which communities of care develop and assume responsibilities to care for cultural heritage. Chapter 6 sets out the quotidian care that is provided in respect of cultural heritage, which includes the provisions in law and non-law instruments for looking after cultural heritage on a daily basis, and providing opportunities for communities to use, enjoy and have access to cultural heritage. Chapter 7 analyses the way in which the UK seeks to navigate harm to cultural heritage – both actual or threatened tangible and intangible harm to cultural heritage, focusing on precautionary, preventative and reactive care as well as efforts to mitigate the effect of harm when it cannot be averted. Chapter 8 explores the rhetoric of saving cultural heritage for the nation and averting loss of access on a national level; it seeks to determine whether the export licensing system is focused on caring for cultural heritage or rather the response to a concern that another nation might acquire cultural heritage which the UK is desireth of keeping.
Part III explores the provision of space to resolve dissonance. Chapter 9 considers the space to provide justice and challenge the status quo. It analyses whether cultural heritage has an instrumental role, or whether restitution, repatriation, reunification, return or some other remedy are central to caring for others. A central part of the care here is to ensure mutual respect, trust and empathy. To this end, the approaches taken to dealing with challenges to the status quo in the form of paternalistic care are compared with dialogic responses which are infused with the ethics of care.
