I’ve posted on SSRN a work in progress, Fraud on Our Heritage: Towards a Rigorous Standard for the Good Faith Acquisition of Antiquities. I attempt to make a case for heightened standards for good faith, particularly in the context of museums and antiquities. I would be delighted to hear any thoughts/reactions to the piece. Here is the abstract:
If a family of art forgers living in modest public housing in Bolton, England can easily fool some of the World’s leading cultural institutions, then surely the current state of the antiquities market must be badly broken. Ideally a diligent enquiry before a purchase confers good faith status, allows purchasers to acquire good title, and gives the legal right to seek compensation from an unscrupulous seller. Despite these important advantages, good faith has been used merely to promote commercial convenience and economic efficiency. This article proposes a new theoretical foundation for increased scrutiny of the antiquities trade by constructing a broad basis for the recognition of good faith as a mechanism for eliminating the illicit trade in antiquities.
Though an existing body of law prohibits and punishes a variety of activities which further the illicit trade, these measures are severely hampered by the mystery surrounding antiquities transactions. With increased scrutiny and a more rigorous and diligent analysis, these legal measures will become far more effective. At present, details regarding authenticity, title, or even more basic questions such as the origin of an object are intentionally hidden and disguised from public view. When an object is acquired without a rigorous due diligence process, that acquisition defrauds our heritage by distorting the archaeological record; harms the legitimate acquisition of antiquities; perverts the important role museums play in society; and ultimately warps the understanding of our common cultural heritage.
Consequently, this article proposes a theoretical underpinning for a new and rigorous standard for the acquisition of art and antiquities. In so doing, it develops a theory which can successfully navigate the secrecy surrounding the trade and acquisition of antiquities. It concludes by offering a critique of the recent attempts by law and economics scholars to analyze the antiquities trade and concludes that they may offer some useful policy models so long as they account for the preservation of heritage and context in their “efficiency” models.