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Merryman sees the language of the Preamble to the Hague Convention as embodying a nobility of purpose, while also serving as a charter for internationalism. Let me quote the second and third clauses, which are germane to his argument: 'Being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world;The key phrases are 'cultural heritage of all mankind', 'culture of the world' and 'the cultural heritage'. In Merryman's opinion, the 1954 Hague Convention exerts an influence that extends beyond the obligations imposed on and accepted by its parties. It is a piece of international legislation that exemplifies 'cultural internationalism', and expresses the cosmopolitan notion of a general interest in cultural property apart from any national interest. In support of this proposition, he cites Sir Harold Nicholson's comments, in the Spectator magazine, that he would be prepared to be shot if it meant preserving the Giotto frescoes, and would not 'hesitate for an instant...to save St. Mark's even if I were aware that by so doing I should bring death to my sons...'3 Merryman wants to contrast the Hague Convention with the 1970 UNESCO Convention. If the agenda of internationalism supports an ambassadorial role for cultural objects, then the 'other way' of thinking takes national cultural heritage as its principal subject. As with the Hague Convention, the governing thought on heritage is embedded in the Preamble: 'Considering that cultural property constitutes one of the basic elements of civilization and national culture, and that its true value can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting...' (my itals.)Ways of addressing heritage can be quite different from those conventionally associated with property, indeed crucial to the debate over heritage is the language used in setting out a case.4 Hence, within the Preamble to the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage', 1972, we find the phrases 'world heritage of mankind as a whole', 'heritage of all the nations of the world' and 'world's heritage' coupled with the observation that 'this unique and irreplaceable property' nonetheless belongs to specific people.5 In the writings of J.G. von Herder, we come to a major source for much of the 'cultural nationalism' that Merryman identifies with the 1970 UNESCO Convention. There is some irony in this, insofar as Herder's attitude to nationality and to the particular was firmly non-parochial. Moreover, his philological researches laid the foundation for the later idea of a universal cultural heritage. In his dictum that 'Human nature under diverse climates is never wholly the same', Herder moves away from the Kantian notion that human nature has an essential identity. He also departs from Voltaire in promoting cultural pluralism, as distinct from a monism where European culture is seen as the universal yardstick of human values.6 Central to his thinking is the assertion that fundamental to the cohesiveness and coherence of the Volk is a common language, the bedrock of social life. Language is the living manifestation of a culture and cultural continuity - the matrix in which a person's awareness of her cultural heritage is aroused and deepened. This shift from contract to language is critical - the individual is no longer paramount, but becomes embedded in a collectivity that has meaning through the language-culture relationship, an idea further developed by Hegel. For Grotius and Selden, Locke and Rousseau, natural law discourse both on the individual and the social contract was set against a Protestant foregrounding of the Old Testament, and the Mosaic Covenant. Herder was firmly within this tradition. The combination of a powerful, universal drama and a national document (embedded in a 'common language'), gave flesh to Herder's thoughts on the proper relationship between the universal and the particular, between Humanität and Volk. As F.M. Barnard argues: 'Herder's interpretation of the Mosaic Constitution signals, therefore, an unmistakable shift from the prevailing individualism of the Enlightenment. The individual is now viewed as an integral part of associational units within the nation or as a member of the collective body of the nation as a whole... A person is now seen as being able to find fulfilment only within a land and a people of his own, in which he can stand up and be counted. Indeed, a person can only be a person within a cultural and territorial context that is distinctly his own.'7If we are able to accept that the general sensitivity to local culture expressed within the 1970 UNESCO Convention is rooted in Herder and Hegel, then the strong cosmopolitan position underpinning the 1954 Convention should be sought in Kant. Each individual (not just each state) should yield 'generously to the cosmopolitan society as the destiny of the human race', directing their endeavors towards the 'progressive organization of the citizens of the earth within and towards the species as a system which is united by cosmopolitical bonds.'8 Kant's citizens, crucially, were autonomous individuals, not members of particularized communities, which for Herder were the vital socio-cultural media through which Humanität was realized. And Kant, unlike Herder, was not animated by a primitivist interest in the Geist. The idea of a universal cultural heritage, as captured in those two Hague Convention phrases, 'cultural heritage of all mankind' and 'culture of the world' has a cosmopolitan tenor. It also seems to me to have two further sources, both related to Herder. One is primitivism itself. Here is Max Pechstein writing from the Melanesian island of Palau in 1914: 'Since I myself grew up among simple people amidst nature, I readily came to terms with the abundance of new impressions. I didn't have to change my attitude that much…Out of the deepest feeling of community I could approach the South Sea islanders as a brother...'Pechstein embeds his thoughts in the axial relationship articulated, a century after Herder, by Ferdinand Tönnies, who made a distinction between Gemeinschaft (community) and Gesellschaft (society) in order to distinguish between natural communities, linked by kinship and local custom, and capitalist societies, regulated by individualism and contract.9 Indeed, the interest of Western painters and sculptors not only in the non-European 'primitive' and exotic but also in folk art quickened from the mid-19th century. Taking a variety of forms, it is seen, for example, in the Impressionist and post-Impressionist fascination with Japanese wood-block prints; in the pre-Raphaelites' turn to a Romanticized version of the Middle Ages, the French Nabis living amongst indigenous 'primitives' of Brittany, and in Gauguin's subsequent domicile in Tahiti; in Cubist images reflecting a knowledge of African masks and figures; in the German Expressionists' travels to Oceania; in the Freudian and quasi-anthropological ideas of the Surrealists, and so on. Rousseau's charter for the Noble Savage legitimated a natural, and from Darwin on, competitive progression from savage/primitive to rational/civilized. The second source of those universalizing phrases is the notion of world literature, Weltliteratur, a term that Goethe himself coined and which was increasingly used by him at the end of his life to signify literature that expressed Humanität - the expression of which was literature's ultimate purpose. Transcending national literatures without destroying their identities, and understood as a concert of works rather than a selective collection, it was influenced by the emerging tradition of German philology to which Herder had already contributed.10 In 1952, in his sixtieth year, the philologist Erich Auerbach sought to recover a Goethean and Herderan humanism founded on diversity: 'The presupposition of Weltliteratur is a felix culpa: mankind's division into many cultures.' Profoundly affected by his experience of exile from Germany, Auerbach here attempts to reconcile the universal with the particular: 'The most priceless and indispensable part of a philologist's heritage is still his own nation's culture and language. Only when he is first separated from this heritage, however, and then transcends it does it become truly effective. We must return, in admittedly altered circumstances, to the knowledge that prenational medieval culture already possessed: the knowledge that the spirit (Geist) is not national.'11This Germanist idea of unity-in-diversity reaches its apogee in the writing of Leo Spitzer, Auerbach's fellow philologist in exile. In his contribution to George Boas's Studies in Intellectual History, published the year before the Hague Convention, we find Spitzer writing of 'the general human mind', 'a general human attitude', and our 'general human experience', in, as Geoffrey Green puts it, 'an effort to integrate his particular humanistic Spirit with the post-war idealistic yearning for world peace that helped create the United Nations.'12 On reflection, it is hardly surprising that humanist versions of the Geist should set themselves in opposition to the virulent National Socialist version, and that such thinking should appear in an international convention of the early 1950s. Indeed, Timothy O'Hagan observes that documents like the French Declaration of the Rights of Man and the Citizen, the U.S. Declaration of Independence and the European Convention for the Protection of Human Rights and Fundamental Freedoms were all forged during or in the aftermath of struggles against oppressive political forces or alien occupations.13 For my part, I believe we should be clear that the approaches to heritage discussed by Merryman are both predicated on constructions - which is not to say that they are poor constructions - the histories of which are more deeply entwined than their respective proponents acknowledge. In conclusion, let me tabulate four large cultural property concerns: 1. The first is the issue of legal ownership, and of title at international law. 2. The second is what we might call 'cultural ownership'. This has a relationship to moral rights legislation but, as yet, disputes remain largely in the political rather than legal domain. Arguments for cultural ownership derive principally from the Herderan/Hegelian Germanist tradition noted above. 3. The third is the issue of public interest versus private rights, which has little meaning in a situation like Bamiyan, but is extremely relevant to cultural property control within nations where there is a strong natural rights tradition (e.g. the USA and Britain). 4. The fourth is the issue of preservation, and how best to preserve culturally important things - which clearly is central to the discussion here. 1 This presentation is mostly excerpted from 'Legal Conventions and the Construction of Heritage', Art, Antiquity and Law, September 2001. 2 In its 1939 study on the protection to be afforded to monuments and works of art in times of war and civil strife, ICOM (The International Council of Museums) held that states that are rich artistically are only depositories of such works for the general benefit of all mankind. Sharon A. Williams, The International and National Protection of Movable Cultural Property, A Comparative Study (New York, 1978). 3 'Two Ways of Thinking about Cultural Property', American Journal of International Law, vol.80, 1986, 4:840. 4 L. V. Prott, 'Problems of Private International Law for the Protection of the Cultural Heritage', Recueil des Cours de l'Académie de la Haye, vol.217 (The Hague, 1989). 5 'to whatever people it may belong', Seventeenth Session of the General Conference of UNESCO, Paris, 1972. 6 M. H. Abrams, The Mirror and the Lamp: Romantic Theory and the Critical Tradition (Oxford: Oxford University Press, 1953), 204. 7 Ibid, 267. 8 Immanuel Kant, Anthropology from a Pragmatic Point of View, Victor Lyle Dowdell, tr. (Carbondale and Edwardville: Southern Illinois University Press, 1978), 247-51. 9 Donald E. Gordon, 'German Expressionism', in William Rubin, ed., "Primitivism" in 20th Century Art, Affinity of the Tribal and the Modern (New York: Museum of Modern Art, 1984), II: 370, 391. 10 'But still...its practical meaning and operating ideology were that, so far as literature and culture were concerned, Europe led the way and was the main subject of interest', Erich Auerbach, 'Philology and Weltliteratur', translated and introduced by Edward and Marie Said, Centennial Review, vol.13 (1969), 1. 11 Auerbach, 'Philology and Weltliteratur', 2, 17. 12 Contemporary with the publication of Andre Malraux's Musée imaginaire de la sculpture mondiale, 1952-54. 13 Timothy O'Hagan, 'On Hegel's Critique of Kant's Moral and Political Philosophy, in Stephen Priest, ed., Hegel's Critique of Kant (Oxford: Clarendon Press, 1987), 157. Copyright © . Asia Society. All rights reserved. Please click here for legal restrictions and terms of use applicable to this site and Asia Society's Privacy Policy. |
