An alternative lens through which museum trustees may evaluate the merits of a moral claim for restitution is whether an artefact [‘A’] belongs in a particular place or setting e.g. tribal lands occupied by an indigenous source people/community. In other words, does A have a ‘Cultural Home/Homeland.’
This is a matter of moral philosophy and there may be historical precedents which date as far back as antiquity to validate the concept because of art restitution practice in the ancient world. This will of course need to be researched.
The concept of a Cultural Home for an artefact [‘H’] is linked to the concepts of:
· a ‘Lex Originis’;
· the ‘legitimacy’ of a place where A should be located (‘Patrie’ – i.e. the
cultural ‘homeland’ of A);
· the applicable law being that of H – and what state law applies in
default if the law of H is not a unified, i.e. recognised body
of law in jurisprudence;
· the sovereignty of indigenous peoples and their human rights; and
· the concept of the creation for public display, i.e. in a museum/gallery, of a ‘unity of art.’
The concept of a ‘unity of art’ is a double-edged sword.
On the one hand the idea is an argument in support of repatriation for display in that A will be displayed along with other cultural artefacts, thereby enhancing the collection(s) by adding to knowledge about the source community/civilization. On the other hand, the museum from which return is sought could argue that the unity of its own collection(s) by be diminished by returning it, and so it is under a duty to mankind as a whole to retain it for research and display in a place where it can be accessed. So, how does a museum trustee square the circle?
Logically, these arguments may be measured through an ethical equilibrium of beneficence, i.e. by evaluating harm in retaining A v. benefit in returning A. Of course, and particularly where the margin between relative benefit v. relative harm is small, they may cancel each other out, in which case the merits of retention v. return are likely to be perceived as being almost equal. In which case, museum trustees are likely to favour maintaining the status quo, because that is likely to be less controversial with their own stakeholders, than returning A to the people from whom A was misappropriated.
However consideration of ethical arguments is only dimension of lawful decision-making by museum trustees, which in the case of state actors/entities is also linked to jus cogens and erga omnes norms under international law.
This is an area of decision-making by museum trustees that appears to have been almost entirely neglected in the academic literature on trustee decision-making by public bodies, and is an area I will research in relation to my next book – ‘Art Restitution Claims – A Practical Handbook for Claimants & Museums.’