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Greetings and a question

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Rachel L. Posted: Tue, Feb 24 2009 10:23 AM

I'm not well read as of yet on most topics of Libertarian thought. There are great resources here that I've been slowly digesting, and I read the daily emails and tweets. So I'm trying to get educated.

 

In the meantime, for research I'm doing out of personal interest, I was wondering about the Libertarian positions on the idea of Cultural Property, meaning objects of historic/artistic/religious significance to a people which might become the subject of an ownership dispute.

 

I've read Kinsella's wonderfully clear article on Intellectual Property and while that cleared up my thinking on that matter very well, it did not supply any help toward the question I was hoping to answer. That is: Is the idea of “Cultural Property” even a valid one? Unlike IP, Cultural Property refers to items, not ideas, subject to extreme scarcity. The arguments don't pertain so much to reproduction or even necessarily profit, but ownership and usage rights, and the problems of the black market trade of artifacts. In the case of theft from archaeological sites many artifacts lose all or much of their value to historians because their context is irretrievably lost. So part of the argument in defense of CP laws teaches that such laws discourage looting.

 

The questions surrounding Cultural Property are manifold, beginning with the ethics of collecting those pieces, and ending with the ethics of scholarly research performed into such objects. All over the world, public funds and institutions administer the national and international laws that regulate Cultural Property. A great deal of pressure-legal pressure as well as public opinion-is now placed on institutions with old collections, art dealers, and scholars who might wish to make disputed objects part of their research. What are the alternatives proposed by Libertarian thinking?

 

The objects looted from Iraqi museums in 2003 can provide good case studies for some of these problems.

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Solomon replied on Tue, Feb 24 2009 11:35 AM

'Cultural property' sounds to me like 'collective ownership'.  There's a great deal of writing on this topic.

Diminishing Marginal Utility - IT'S THE LAW!

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Rachel L. replied on Tue, Feb 24 2009 11:45 AM

I'll check it out.  There's really not literature on Cultural Property here as it pertains to these issues?  I'm truly surprised.

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Rachel L.:
 What are the alternatives proposed by Libertarian thinking?
There is no reason why "cultural" property should be treated any differently than any other property -- i.e., it should be privately owned.  Whoever owns it, has the right to do whatever he wants with it. 

 

If I may be so presumptuous, my suspicion is that you see "cultural" property as being different mainly because you fail to see governments and states as being the problem.  Government agents confiscate "cultural" property and make it virtually impossible to hold anybody accountable for the maintenance of the property. 


Before calling yourself a libertarian or an anarchist, read this.  
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Marko replied on Tue, Feb 24 2009 12:29 PM

To me this issue sounds less like IP and more like save the whales thing. Whales are valuable and we don`t want them to go extinct. That is why we absolutely don`t want them to be Nature`s Property or whatever, but instead want them to be privately owned by someone very specificaly defined, so they will have an interest in protecting them (and so that killing a whale will be an offense against property rights of someone). 


The most important thing about such artifacs should be that they get preserved and that the public has the ability to see them. The state does a terrible job at this. Plenty of inventory of state museums is actually kept in warehouses and is not displayed.

A privately owned museums living solely on entrance fees on the other hand would have every incentive to display everything in its possesion to maximise its profits. Also they have a greater incentive to take good care of it since the artifacts are their investement, while a state museum only manages something owned by no one.

But the state persists in the nonsense where every cultural artifact is "priceless" and thus will not sell any of them to someone to whom they would be more valuable. If it is "priceless" why is it being kept in a dark warehouse??

And I`d sa it is inconceivable private museums would not allow historians access since the studies published would in essence function like free commercials. It is far more likely the state will construct some nonsensical buerocratic barrier that will hamper historians than a private museum.


On the question of looting. There is no such thing. The state has no rightful claim to an artifact you just dug up from the ground, possibly from your own land. The only thing its proclamation of its ownership does is ensure that artifacts so retrieved get sold to private collectors who keep their possesion secret rather than to  museums which would enable everyone to see them.

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Rachel L. replied on Tue, Feb 24 2009 12:47 PM

I'm not sure I'm getting what I'm asking for here.  I'm looking for articles addressing the subject of artifacts and the Libertarian take on "homesteading" type ownership when two bodies can be seen to be primary owners. 

The issue with scholarship isn't lack of access.  It's ethics.  Periodicals won't publish works on badly provenanced artifacts.

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This and this might be of interest.

Freedom of markets is positively correlated with the degree of evolution in any society...

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Rachel L. replied on Tue, Feb 24 2009 12:52 PM

Looting is certainly theft.  The body responsible for an archaeological dig (landowners and investors, etc) are the owners of the artifacts within it.  The museum that gets pillaged is the owner of the artifacts that get boosted unless they are privately owned and on loan.  They still have owners.

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Cultural significance has no bearing on ownership at all.  I think that is what everyone here is trying to avoid saying.

 

"When you're young you worry about people stealing your ideas, when you're old you worry that they won't." - David Friedman
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Rachel L. replied on Tue, Feb 24 2009 1:17 PM

Looks helpful, thanks

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Marko replied on Tue, Feb 24 2009 1:33 PM

Rachel L.:

The issue with scholarship isn't lack of access.  It's ethics.  Periodicals won't publish works on badly provenanced artifacts.

It`s like with everything else. You don`t need the state to have standards. Probably a private museum would pay less for a "badly provenanced artifact" so whoever found one that was worth something would have an incentive to call expert diggers instead of retrieving it himself.

 

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Rachel L. replied on Tue, Feb 24 2009 1:35 PM
I think the term "cultural property" is confusing in this context because it sounds like "Public Property".  The popular argument isn't "this item is culturally significant so it should belong to the state".  Although in many cases at this time it's publicly-funded museums that do have ownership.  The issue is who owns an item when there has been an unethical transfer of ownership in its past. 
 
For example, the budding issue between the Egyptian and German governments over the bust of Nefertiti.  At the time of its discovery, certain conventions were upheld in which the company sponsoring the dig (the German government, in this case) shared the finds with the Egyptian government.  Setting aside the part where we'd all prefer these matters to be conducted by private investors and companies, the problem is this:
 
Egypt accuses Germany of having taken the bust by way of a ruse back at the time of its discovery.  The archaeologist in question is now accused of having lied about its importance in order to secure it for Germany.  Now it's been a German possession for years and Egypt, because of this new data, is convinced it really should never have left their ownership.
 
See the problems involved?
 
Party A has an item.  It gets stolen or taken by trickery.  Party B is either the thief or someone who bought the item from the thief, or the descendant of the thief.
 
Now Party A's representatives have demanded the item back.  Who is the proper owner?
 
I think this argument would wind up in the same place even if the bust of Nefertiti was found by a private German company in cooperation with a privately funded Egyptian museum.  The current climate in Art History dictates that the Egyptian company would more or less have a better claim to the item because it is Egyptian "Cultural Property"--their culture produced the work.
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Rachel L.:
Setting aside the part where we'd all prefer these matters to be conducted by private investors and companies

We can't set aside the only rational outcome.  The libertarian position is based on principle, not preference.

Rachel L.:
The current climate in Art History dictates that the Egyptian company would more or less have a better claim to the item because it is Egyptian "Cultural Property"--their culture produced the work.

No one owns a culture.  No one is the clear title holder of a culture.  It is impossible for a culture to own anything.  You also don't have a title to the property of your ancestors, unless they have passed title on to you explicitly.

Culture, state, religion etc are all static concepts of identification, that cannot conform to the fluid realities of the world around us.  It is collectivism at it's maxim.  One can be German but live like an Egyptian, and an Egyptian who speaks German.  Culture is an artificial distinction that obfuscates the clear determination of who has the highest claim to the bust.

"When you're young you worry about people stealing your ideas, when you're old you worry that they won't." - David Friedman
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Rachel L. replied on Tue, Feb 24 2009 2:30 PM
I think it's important for me to clarify this: I don't believe in government-funded arts organisations.  I believe museums should be maintained by private gift alone.  I believe archaeological digs should also always be privately funded.  I'm not ruling out privatization of an item as part of its correct disposition.  I do feel like some of the posters have assumed I have an opinion on how cultural property disputes should be resolved, but at this time I do not.  I'm waiting to read all the evidence I can, which is why I took up the research in the first place. 
 
I really thought it would be a simple matter of looking up an article or book written by a Libertarian author on the subject.  I know the problems of Art History don't come to the forefront of politics that often, but CP debates are drastically changing the way museums and private collectors operate today.
 

It's to the point where universities have policies against accepting donations from private art collectors who own objects purchased on the open market (i.e. unprovenanced items or those without full provenances).  There's private money, gobs of it, unavailable to the museums and schools because of this.  And what can be done about those artifacts?  Historians can't write about them, because noone will publish their work.  The owners can't sell them, except directly to other un-squeamish types, because auction houses won't deal with them.  In many cases really important works go un-examined and are completely out of the public eye because of this.  It's so hairy making a purchase, that museums like the Met have slowed their rate of accession enormously in recent years.  They can't afford to lose an artifact after investing so much in it.  And once the question comes up, they're almost bound to lose the artifact-because they'll voluntarily give it up rather than be seen as unethical.  Museums maintain amicable relations worldwide whenever possible.

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Rachel L.:
I'm not ruling out privatization of an item as part of its correct disposition. 

But I don't think you understand what I am saying.  The premise of your query, resolved to it's simplest form, is that there is no such thing as cultural property.  Any more than there is "peanut butter airplane" or "tasty purple air".  There is no lit, because the topic doesn't exist.

Rachel L.:

I really thought it would be a simple matter of looking up an article or book written by a Libertarian author on the subject.  I know the problems of Art History don't come to the forefront of politics that often, but CP debates are drastically changing the way museums and private collectors operate today.

The point I am trying to make, is that CP is just something made up.  It is an irrational construct, like believing the star clusters are gods.  It's not based on any rational theory of property.  There is no libertarian solution to a non-problem.

The problems with universities and museums are based around the fact they are connected to the state directly or indirectly, and forced to conform to the state distortion of what is and is not property, and what is and is not a valid property right.

It's like being in a mental asylum and saying, "hey, we have a problem with crazy people".  Step outside the asylum, and you can see that the way things are, are not only not how they have to be, they don't make sense inside or outside the asylum.

"When you're young you worry about people stealing your ideas, when you're old you worry that they won't." - David Friedman
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Rachel L. replied on Tue, Feb 24 2009 4:40 PM

Liberty Student, the points you are trying to make are much better expressed in the two articles linked by Jon Irenicus above.  While this information is helpful as a peripheral subject to my research, it does not address the question at hand.

I am not asking whether or not the state should be involved with cultural property.  Thank you but please stop trying to make that point.  I will define cultural property one more time, and remind you that I have not invented the term nor is it a nonsense term.  It is simply the phrase used commonly to refer to objects of artistic, religious, or historic significance.  The term does not imply ownership by the state or anyone else.  It is a blanket term.

Unfortunately it is often bundled with Intellectual Property, which Kinsella rightly demonstrated to be a nonsensical notion.  If you can follow me, there are two different processes here: cultural property, real objects subject to scarcity, and IP, ideas not subject to scarcity.

Cultural Property can no doubt be addressed like any other real property in a libertarian system.  In simple cases of initial discovery and "homesteading", for example when a farmer's plow digs up the entrance to a fabulous tomb enclosed within his property, there's no question how a libertarian system would handle it.  The tomb and its contents belong to the farmer.  He is free to contract with investors and specialists to handle the removal of the artifacts, and he is well advised to do so because he will get the best profit when his property has been documented and tested with care.  He will be free to sell his items in any auction to any individuals or institutions, who will bid the best prices because they can make use of the provenanced items in research.  He may choose to limit sales to institutions and collectors within his cultural group if this agrees with his ethics.  If  not, those who buy the artifacts can't be made to return them simply because there was a clear and defensible contract between them.

Here's the problem.  Our happy farmer has been cheated by some of the workmen he hired.  Some of them carried off undocumented items from the site and later sold them without permission.  It's unethical but tempting, and they aren't caught.  The objects have been stripped of much of their value because the context of the find is gone.  Still, they surface in a private collection years later and a clever historian writes a paper about the objects, correctly identifying them as coming from the farmer's dig many years before.  The discovery, though qualified by the uncertainty about whether the objects are forgeries or not, changes some important assumptions about the farmer's site and the matter becomes public.

The farmer's heirs sue the art collector for the return of their father's property.  The art collector, in turn, rightly asserts that he paid for the items fair and square.  But he cannot show a provenance that extends back to the farmer, because the original seller was a thief.

Who, in this instance, is the rightful owner of the objects? 

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zefreak replied on Tue, Feb 24 2009 5:47 PM

Rothbard talked about this in The Ethics of Liberty (not your so-called "cultural property" but a more generalized case regarding an unsure origin of property). If I recall correctly, he reasons that if theft cannot be proven or original owner not found, the property has reverted to a homesteadable resource and in your case, the purchaser has a legitimate claim to the property.

“Elections are Futures Markets in Stolen Property.” - H. L. Mencken


 

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Rachel L.:
ur happy farmer has been cheated by some of the workmen he hired.  Some of them carried off undocumented items from the site and later sold them without permission. 

This is just a case of theft, clear as day. The case would not be resolved any differently than if Jon stole my TV and sold it to you, then I later made claim to the TV.

"When you're young you worry about people stealing your ideas, when you're old you worry that they won't." - David Friedman
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equack replied on Tue, Feb 24 2009 9:41 PM

Another concept explicitly tied to a libertarian theory of property rights as well as justice is the notion of causality. If Jones steals from Smith and Jones sells it to another person and we cannot trace the causal chain back to Smith being the owner, how can one make a case? As libery student notes, it becomes essentially unowned and is able to be homesteaded unless the legal system can prove beyond a reasonable otherwise. Another issue to note, a libertarian legal system will be more concerned with getting your property back than giving the perpetrator jail time ;).

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Marko replied on Tue, Feb 24 2009 11:18 PM

liberty student:

Culture, state, religion etc are all static concepts of identification, that cannot conform to the fluid realities of the world around us.  It is collectivism at it's maxim.



What?

Cultural property is bogus because cultural significance of an item can not be owned. The same way myths and legends of a certain culture can not be owned or the same way aesthetic pleasure gotten from observing a particularly scenic river or a forrest can not be owned or the same way affection for a local sports team can not be owned. It is simply not scarce.  

It is perfectly explainable without the need to go into looney land of vulgar induvidualism where culture itself is somehow "collectivist".


liberty student:
One can be German but live like an Egyptian...


In which case one is an ethnic German but culturaly Egyptian.

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Rachel L. replied on Wed, Feb 25 2009 4:50 AM

Thanks zefreak, I suspected Rothbard would give me my answers.  I'll head back to the Ethics of Liberty, which takes an awful lot of digesting.

I'm still unsure what happens when the theft IS traceable, and two valid owners can be identified.  Who is the rightful owner?  The original one?  If so, does the new owner basically lose the right to recompense because he didn't do his research?

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Rachel L.:
I'm still unsure what happens when the theft IS traceable, and two valid owners can be identified.  Who is the rightful owner?  The original one?

yes, the original one. he is the only valid owner. there is no confusion.

Rachel L.:

Thanks zefreak, I suspected Rothbard would give me my answers.  I'll head back to the Ethics of Liberty, which takes an awful lot of digesting.I'm still unsure what happens when the theft IS traceable, and two valid owners can be identified.  Who is the rightful owner?  The original one?  If so, does the new owner basically lose the right to recompense because he didn't do his research?

the 'newer' owner has no right 'against' the original owner' but certainly he was defrauded by the thief, or whomever sold it to him under the pretence that the goods were not stolen goods. so the 'new owner', has claims against who sold it to him, (there could well be a regression of claims right back to the thief if the item had changed hands many times)

Where there is no property there is no justice; a proposition as certain as any demonstration in Euclid

Fools! not to see that what they madly desire would be a calamity to them as no hands but their own could bring

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Marko:
It is perfectly explainable without the need to go into looney land of vulgar induvidualism where culture itself is somehow "collectivist".

Please read more precisely.

Marko:
liberty student:
One can be German but live like an Egyptian...


In which case one is an ethnic German but culturaly Egyptian.

Excellent work.

"When you're young you worry about people stealing your ideas, when you're old you worry that they won't." - David Friedman
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Rachel L. replied on Wed, Feb 25 2009 11:13 AM

I think Marko is correct about both points.  The phrase "Cultural Property" isn't a very logical one.  When it's used as a way of appropriating objects from their rightful owners, it's completely wrong. 

Many Cultural Property disputes take the form of ownership claims that don't make sense.  For example Egyptian officials believe the Nefertiti bust should be returned in spite of possible valid ownership by Germany.  They feel Germany doesn't "deserve" to keep the bust because it's emblematic of a significant part of Egyptian history.  My answer to that is that national identity isn't the same as cultural identity, and in fact neither is inherent.  A bust of Nefertiti is significant because it is emblematic of a part of human history.  Any museum who obtained it in a valid way would be as deserving of it as any other.

I'll just read my Rothbard and I'm sure I'll find all my answers about the other question.  In general, it seems like the Libertarian solution is the most simple and obvious one.

 

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Rachel L.:
I think Marko is correct about both points.

Sure he is.  The latter was obvious, the former was based on poor comprehension.  I didn't say culture was collectivist, I said ;

Culture, state, religion etc are all static concepts of identification

Rachel L.:
In general, it seems like the Libertarian solution is the most simple and obvious one.

It usually is.  Now the problem is, trying to convince non-Libertarians that property is very simple, and culture, race, emotions are not necessary components of justice.

"When you're young you worry about people stealing your ideas, when you're old you worry that they won't." - David Friedman
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Marko replied on Wed, Feb 25 2009 9:11 PM

liberty student:

Please read more precisely.



Give me a hand then;

liberty student:

It is collectivism at it's maxim.

What is "collectivism at its maxim"?

 

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