Australian Museums and Restitution: An Ongoing Revision
December 5, 2019
By Alexandra Taylor
For the integrity of the memory it is good to have sound health and convenient digestion of the meats, and a mind free from other thoughts; it helpeth in much to make good divisions, for he that divideth things alright, can never err in the order of things.
English playwright, historian, lawyer and legal scholar,William Fulbeck, was a proponent of “good divisions” when he clarified the study of law in the 16th Century. Fulbeck’s Study of the Law is surprisingly contemporaneous, presenting good direction and sensible legal advice despite its context being English law education and court proceedings during the Elizabethan era. This quote in particular links good classification with good clarification, a lesson as essential now as it was then. Birks, in his publication Restitution – the Future (1992), comments on the shortcomings of present-day restitution law with Fulbeck’s philosophy in mind. Restitution describes what happens when the plaintiff sues to get his/her property back from the defendant, essentially the “restoration” or “remedy” of freestanding legal entitlement. As Edelman and Bant quote from Lord Millett in Unjust Enrichment in Australia, ‘restitution…is a category of response’ (2006, p.5).
Before the mid-20th-century, divisions of contract, torts, and trusts were not so well-established in judicial systems, which held onto many of the classifications and categorisations inherited in restitution law. For example, actions of unjust enrichment, described as ‘quasi-contractual’ (Edelman & Bant p. 3), were treated as part of the law of contract. Following the publication of Restatement of Restitution in the United States in 1966 and 1985, the modern law of unjust enrichment in England went through a period of transition, thus creating the bedrock for current practice. Birks outlines the problems faced by restitution as an old material within a current framework asserting that, until recently, ‘restitution laboured under the handicap of being discussed in archaic and often inappropriate language’ (p. x). Farnsworth (2014) likewise claims that the word restitution is outdated and ‘ambiguous’ (p.13), covering a miscellaneous assortment of fact patterns that fall outside the definition. He divides restitution into four main groups according to the consent or intent of property transfer, listed below.
- Mistakes: neither party might have intended the transfer.
- Conferrings: the giver might have intended the transfer but the recipient did not/didn’t intend to pay for it.
- Takings: the recipient might have intended the transfer while the giver did not.
- Failed contracts: both parties might have intended the transfer, but the intentions on either side or both were contaminated, resulting in unjust enrichment (Farnsworth,p. 1-3).
These categories are informal, with lower level doctrine construction being abstracted beyond the divisions discussed. However, organising typical patterns into these groupings can allow us to grasp, treat and learn about restitution in a convenient way.
As one of the most important issues facing Western museums in the 21st century, the legitimacy of state ownership in restitution controversies has brought about new complexities and processes that capture the emotive and contentious issues surrounding this area of law. The public museum is a European invention and restitution is a highly charged political subject that clashes with the intent to operate as a symbol of cultural identity. ‘Museums are part of the apparatus of power within society, reflecting and representing dominant ideologies’ (Tythacott & Arvanitis 2016, p. 2). 19th and 20th century colonialism and nationalism, as well as the acquisition of archaeological objects on behalf of foreign collectors have lead to intensifying repatriation claims.
The People’s Republic of China’s response to the 2008 Yves Saint Laurent Christie’s Paris auction, where two controversial bronzes from a private collection were prepared to sell for profit, is an example of the universal view to strengthen efforts towards repatriation (Tythacott & Arvanitis, p. 1; Spencer 2008). The works were recognised as two out of twelve that disappeared during the sacking of the imperial Summer Palace in Beijing when the French and British troops invaded during the Second Opium War in 1860 (Spencer 2008). Zong Tianliang, on behalf of the palace of administration, stated that although ‘[they] respect the business rules of auction companies as well as the operating mechanism of art markets…it’s definitely unacceptable to put plunder under the hammer’ (Spencer).
Restitution, as a legal category, addresses all cases of entitlement where one person has gained at another’s expense or caused another’s loss. The Stolen Generation state-sponsored indigenous assimilation program currently being run in Australia exemplifies this move away from museum dictation towards terms agreed with the inheritors of dispossession. The program seeks to not only trace back the narratives of some 100,000 Aboriginal children who were forcibly taken from their families between 1880 and 1960 as part of the governmental policy of Assimilation, but also to repatriate the bodies of the First Stolen Generations who were ‘torn from their county and resting places in much the same way as indigenous children were stolen from their families’ (Tythacott & Arvanitis pp. 24-25). Museums that do not take decisive action against these issues ‘break one of the fundamental tenets of professional ethics…non-maleficence: doing no harm’ (Tythacott & Arvanitis p. 25). To claim absolution from the moral obligations of today is antithetical to the pact against iniquity set down in the 2003 Declaration of the Importance and Value of Universal Museums:
We should…recognise that objects acquired in earlier times must be viewed in the light of different sensitivities and values, reflective of that earlier era. The objects and monumental works that were installed decades and even centuries ago in museums throughout Europe and America were acquired under conditions that are not comparable with current ones. (CMA, 2003)
Repatriation through human interaction has a lasting significance on the relationships between the communities with whom these objects are repatriated. International repatriation schemes, such as the National Museum of Australia’s recorded repatriation request to the University of Edinburgh and Glasgow City Council for the return of Aboriginal Australian human remains in 1992, 2000 and 2007 exemplify this change (Curtis 2016, pp. 86-87). Similarly in New Zealand the results of ensuring the embedded interests of indigenous people has further developed bicultural governance in Wellington’s Te Papa (Curtis p. 85). As cultural heritage conservation evolves in adherence to developing professional practices, a shift towards refining the International Museum’s codes and rules for ethics is a necessary step towards equity. It is with growing international interest and further debate that clarification around restitution takes place.
Bienkowski, Piotr. “Authority of Power of Place: Exploring the Legitimacy of Authorised and Alternative Voices in the Restitution Discourse.” In Museums and Restitution, New Practices, New Approaches. New York, NY: Routledge, 2014.
Birks, Peter. Restitution – The Future. Annandale, NSW: The Federation Press, 1992.
Cleveland Museum of Art. Cleveland Museum of Art Press Release. “Information – Declaration on the Importance and Value of Universal Museums.” News release, 2003. Internet Archive. https://archive.org/details/cmapr4492.
Curtis, Neil. “A Welcome and Important Part of their Role: the Impact of Repatriation on Museums in Scotland.” In Museums and Restitution, New Practices, New Approaches. New York, NY: Routledge, 2014.
Edelman, James, and Bant, Elise. Unjust Enrichment. Oxford, Oxfordshire: Hart Publishing, 2016.
Farnsworth, Ward. Restitution: Civil Liability for Unjust Enrichment. Chicago, IL: University of Chicago Press, 2014.
Fulbeck, William. A Direction, or Preparative, to the Study of the Law. London, UK: Wildwood House, 1987.
Spencer, Richard. “Chinese Fury at Yves Saint-Laurent Art Sale.” The Telegraph, November 3, 2008. https://www.telegraph.co.uk/news/worldnews/asia/china/3373996/Chinese-fury-at-Yves-Saint-Laurent-art-sale.html.
Thyacott, Louise and Arvanitis, Kostas. “Museums and Restitution: An Introduction.” In Museums and Restitution, New Practices, New Approaches. New York, NY: Routledge, 2014.
About the Author: Alexandra Taylor is a Masters student at the Grimwade Centre for Cultural Materials Conservation, University of Melbourne, Australia.