The Good Faith Acquisition of Antiquities

I have posted on SSRN the most recent version of my paper, Towards a Rigorous Standard for the Good Faith Acquisition of Antiquities of Antiquities, forthcoming in 37 Syracuse Journal of International Law and Commerce (2009).  Here is the abstract:

When antiquities are acquired without a rigorous due diligence process, that acquisition defrauds our heritage by distorting the archaeological record; causing potential harm to other legitimate acquisition of antiquities; perverting the important role museums play in society; and ultimately warping the understanding of our common cultural heritage.  Fraud occurs when a defendant intentionally deceives another.  Given the flood of scandals plaguing museums, collectors, and dealers, we can state now with some confidence that many of these individuals have committed a fraud on our collective human heritage.   

Combating this fraud is particularly difficult.  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 title enquiry by buyers and sellers, 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.

Good faith has been used to merely 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.  This article articulates three ways in which good faith can play a meaningful role in the trade and transfer of antiquities by examining fraud, limitations periods, and public pressure generally. A strong case for reform can be made if we consider that a family of art forgers living in modest public housing in Bolton, England can easily fool some of the World’s leading cultural institutions.

Questions or Comments? Email me at derek.fincham@gmail.com

1 thought on “The Good Faith Acquisition of Antiquities”

  1. I have many issues with this line of reasoning. For starters, we are not talking about a rare or scarce commodity. We are literally dealing with the garbage and/or “stuff” of billions of people that once lived. Most of these items have very little value and to force a registration scheme for items with minimal monetary value is an undue burden.

    There are laws in existence which can be enforced to deal with the underlying issues. But what is more important, is that many laws in source countries encourage destructive, secretive behaviour. Even in countries such as Egypt, where lengthy prison sentences and hard labor are a very real threat, people still break the law and “loot” or do not turn in the trinkets they have had in their family for generations just because the government has deemed them to be “cultural property”, a culture which in no way shape or form has anything to do with the modern day occupants of Egypt mind you.

    The ideals of socialism will not change human nature. Sometime shortly after 1959 all personal property was deemed property of the state in Cuba. Suddenly, eating your own chicken eggs or a banana from the plant in your backyard or the silver dollar that was once your grandfathers became illegal because the government deemed it so. Other things were nationalized or deemed illegal. But human nature instinctually hoards and protects it’s “things” and also our nature tends to revolt against preceived injustices and 50 years later people are still arrested or otherwise harrassed because they have are “thieves” because they have “stolen” property which was deemed property of the state. We are not talking about a slap on the wrist, Cuban jails are not pleasant places.

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