Casini on Who Owns the Past? Politics and Law in the Restitution of Cultural Property

Lorenzo Casini, The Institute for Advanced Studies, has published Who Owns the Past? Politics and Law in the Restitution of Cultural Property. Here is the abstract.

The article examines the issue of cultural property restitution as a boundary field between law, politics, and ethics, exploring the legal and symbolic significance of returning works of art to their places, States, or communities of origin. Through a broad survey of historical and contemporary cases—from wartime spoliations to illicit trafficking, from post-colonial restitutions to those linked to Nazi-Fascist persecutions—the Author highlights the different causes, modalities, and rationales of restitution, emphasizing the plurality of actors and instruments involved. The contribution reconstructs the role of both international and domestic law, underscoring their structural limits, in particular non-retroactivity and the inalienability of public cultural property, and shows how restitutions are often grounded in negotiated agreements and forms of soft law rather than in judicial decisions. In conclusion, the article argues that a new ethic of cultural responsibility and an emerging international custom are taking shape, pointing toward the possible affirmation of a “right to restitution,” also understood as a response to a fundamental question in cultural heritage studies: who owns the past?

Download the artcle from SSRN at the link.

Sprigman on The Jeffersonian Model of U.S. Cultural Property Law @CJSprigman @nyulaw

Christopher Jon Sprigman, NYU School of Law; NYU Engelberg Center on Innovation Law & Policy, is publishing The Jeffersonian Model of U.S. Cultural Property Law Forthcoming 2024, in Tutela & Restauro (the annual journal of the Soprintendenza archeologia belle arti e paesaggio per la città metropolitana di Firenze e le province di Pistoia e Prato). Here is the abstract.

This article, the published version of a closing keynote talk given at a conference on Italian cultural heritage and cultural property law held in 2022 at the University of Florence, describes the loosely-constituted, largely uncodified "Jeffersonian" model of cultural heritage law that operates in the U.S. The Jeffersonian model understands cultural heritage not primarily as a thing to be protected, but as a thing to be used. This model is concerned primarily with the interests of the living – specifically, our collective interest in producing today’s culture, drawing on the past but also reworking it in ways that may preserve or may destabilize the past. This model is largely indifferent to and perhaps in practice even hostile to cultural particularism and to the stability of any particular culture. The role of IP rights, in this model, is not to preserve old culture. It is to encourage people to make new culture. The differences between the Jeffersonian model and the more protectionist cultural heritage and cultural property models that hold sway in Italy and across Europe grow out of deep differences in how different cultures understand what leads to human flourishing. The European model situates individuals within a particular culture; it is based on the notion that some well-defined group identity is central to an individual’s flourishing. On the other hand, the Jeffersonian model is both more cosmopolitan and more present-focused. The logic of these models rests on differing beliefs about the relative importance of individual autonomy versus group identity, and about the virtues of more rapid cultural change versus relative cultural stability.

Download the essay from SSRN at the link.