Recently, the author of Illicit Cultural Property (ICP) has taken aim at two critics of the “cultural property” regime now ascendant in legal systems throughout the world. I enjoy his blog and respect his generally well-thought points of view. For the first critic, the author shows that the response to the publication of James Cuno’s Who Owns Antiquity? seems predictably vitriolic, if Lee Rosenbaum is any indication. No doubt, part of Cuno’s thesis, that the notion of cultural property has been perverted and that laws protecting it stem more from public choice explanations than the preservation of culture per se, would be expected to upset those who favor the status quo and get excited about any extension of regulation into this field. But the real question is: who is right?

You know where I stand on this: I believe Cuno, and those who agree with him, are certainly on the right track. The author of ICP respects Cuno, but is probably not one to join his bandwagon. But one of those who apparently respects and agrees with Cuno is The New York Times’ Critic-at-large and former chief music critic, Edward Rothstein. His column in the NYT, “Antiquities, the World is your Homeland“, received a critique from ICP. Though the shots seem designed to torpedo Rothstein’s column, they each widely miss the mark. His main criticisms are (1) Rothstein confuses cultural property with cultural heritage, (2) Rothstein is unaware of the benefits of NAGPRA, (3) if cultural heritage becomes the exclusive paradigm, then there will be no justification for locating many antiquities in “encyclopedic” museums, and (4) Rothstein does not understand the word “illicit” in the context of this legal discourse.

So let’s start from the top.

1. Rothstein confuses cultural property with cultural heritage

The author of ICP writes:

…he makes a major blunder by confusing cultural property with cultural heritage. He mistakenly argues that nations of origin view antiquities as cultural property. Not so, in fact most would use the term heritage, or an approximation of that in their native language. I think cultural property is a narrower subset of a larger body of what can be called cultural heritage.

First, let us look at the author’s assertion in the light most favorable to it by assuming that the author is right. Let us say that he does make the mistake of confusing cultural property with cultural heritage. Why is it a major blunder? No explanation. What does it mean? Apparently, the main sin is that cultural property is just a “subset” of cultural heritage. Therefore, the author implies that what Rothstein was really describing is cultural heritage, not cultural property. Unfortunately, we are left to wonder why this even remotely matters. It seems that it is a blunder insofar as it was mislabeled. So what? The difference between cultural heritage and cultural property is, at best, esoteric, which is not to say the difference is unimportant. Far from it. But it is to say that the author’s argument does not depend on the difference. Therefore, even seen in its best light, this is not by any means a major blunder.

Now let us assume that the author is wrong. Maybe Rothstein isn’t confusing the two. Rothstein uses the term “cultural property” 18 times by my count. In an early use of the term, Rothstein explains one of the seminal definitions of the term:

In its statement Unesco asserted that such “cultural property” was part of the “cultural heritage of all mankind” and deserved special protection.

This explicitly shows that Rothstein is aware of the distinction between cultural property and cultural heritage, at least in global terms. That doesn’t mean that he didn’t commit the “major blunder” of confusing them, only that he is aware of the difference. Of course, if he is aware and still commits the sin, the sin’s commission might be all the more loathsome. As we shall see, this is probably not the case. The first time the word is used, Rothstein compares cultural property to material property in that it has changed hands a lot. True, so that use of the word checks out. The second use was the excerpt I mentioned. That checks out. We can go through all 18 of them, as I have, and they all check out as perfectly acceptable uses of the term “cultural property.”

By contrast, it seems that the author of ICP has misunderstood the words being used. He believes that Rothstein is confusing the two, when in fact, he explicitly mentions that cultural property was originally conceived as a subset of cultural heritage, just as the author of ICP argues. The tricky part is interpreting Rothstein’s argument. Consider this excerpt:

Italy, for example, affirms as its cultural property “virtually every kind of object produced in or imported to the land we now call Italy over 1,200 years of recorded human history.”

One might consider Rothstein’s argument to be exactly what the author of ICP’s is: that cultural property is being confused with cultural heritage! Rothstein argues that the alleged protectors of cultural property, such as Italy’s policymakers, are making the term so expansive in scope that cultural heritage itself is protected. This, of course, would be an absurd extension of government power and one that should be subjected to extreme scrutiny, which is one of Cuno’s points.