What basis is there for believing that the artefact was removed in a morally illegitimate manner?

Arguments in favour of restitution are often based on the idea that the cultural artefact in question was removed from the claimant (or their community or ancestors) in a morally illegitimate manner.

There are two broad factors that should be taken into account when considering this question. The first is the issue of how the artefact was removed. Some ways of removing an artefact can involve injustice, even if they were (at the time) lawful. One example of this might be if the artefact was obtained in a way that would clearly be unlawful by modern standards, such as looting. Alternatively, the nature of the transfer of ownership might be morally illegitimate in some way, perhaps because it was based on an agreement involving deception or duress, or because it involved a significant imbalance of power and/or exploitation. Another concern might be that the transfer was agreed by a party who did not have the authority to legitimately transfer the artefact’s ownership.

The second factor that must be considered is the strength of the evidence of how the artefact was taken. In some cases, this may be well documented. However, in others, there may be significant gaps in our understanding of how different parties came into possession of the artefact over the course of its history. It is suggested that in considering which of the three answers below is most appropriate for their case, users should consider whether the evidence they have provides a reasonable basis for the belief that the artefact in question was removed in a morally illegitimate manner.

The strength of the basis for such a belief depends on both of the two factors outlined above. The strongest basis would involve clear documented evidence of an artefact being removed in a way that involved clear moral transgressions of the sort highlighted above. The basis becomes weaker the less serious the moral transgression, and/or the weaker the evidence in favour of the alleged transgression.

In some cases, these factors might fail to provide a sufficient basis for believing that the artefact was removed in a morally illegitimate manner. For instance, this may occur when there is strong evidence that the transfer of property was legitimate. The most complex cases will arise when there is limited evidence of serious moral transgressions, or strong evidence of lesser moral transgressions. In such cases, it may be more plausible to say that there is a weaker basis for believing that the artefact was taken in a morally illegitimate manner.

In view of the above, please answer the following question:

What basis is there for believing that the artefact was removed in a morally illegitimate manner?

Has the artefact played an important role, or did it otherwise hold significant value for the claimant or the community from which it was removed?

If there is some basis for believing that the artefact was removed in a morally illegitimate manner, then it is important to consider the role and value of the object, in order to get a further sense of the significance of the injustice involved in its morally illegitimate removal.

In considering this issue, it is important to consider that artefacts can have importance to communities in quite different ways. Amongst other things that might be relevant to specific cases, users are encouraged to think about the role of the artefact in the religious, spiritual, cultural, or political life of the community in question. Moreover, they might also consider the potentially symbolic nature of the artefact, as a symbol of collective ideals or group identity. Artefacts may also play an important cultural role as ceremonial or historical objects that serve to link the community with their ancestors.

It is important to emphasise that the term ‘community’ can be understood in broad terms here to encompass quite different kinds of groups or collective. For instance, the relevant community could be limited to a group of individuals in a particular locality, but the relevant community could alternatively be a national community.

In view of the above, please answer the following question:

Has the artefact played an important role, or did it otherwise hold significant value for the claimant or the community from which it was removed?

What basis is there for believing that the claimant shares a close relationship to the morally illegitimate removal of the cultural artefact?

Having established that there is some basis for believing that an artefact was removed in a morally illegitimate manner, and having considered the relationship between the claimant and that particular artefact, it is also important to think about the nature of the relationship between the claimant, and the events involved in the alleged morally illegitimate removal of the artefact.

In some cases, the individual or group making the claim today may themselves have been the direct victims of the harms or wrongs involved in a (perhaps relatively recent) morally illegitimate removal. Here there is very clearly a strong relationship between the claimant and the morally illegitimate removal of the artefact.

Of course, the question of who can be understood as a ‘direct victim’ of a morally illegitimate removal of a cultural artefact is complex. In some cases, claimants might be understood as members of the same community (bound by close chains of biological or cultural associations) as the individuals from whom the artefact was once removed in a morally illegitimate manner. Their membership of a shared community might arguably be understood to mean that such individuals can also be victims of the injustice that the removal involved in an important sense. In addition to biological relationships, various shared cultural characteristics, such as common social norms, religions, language and customs might potentially be understood to ground a group’s claim to be legitimate members of a shared community.

However, the most complex cases arise when restitution claims are raised by more distant descendants of the direct victims of a morally illegitimate removal, who are perhaps not appropriately understood as belonging to the same community that suffered the injustice at the time. Such cases might, for example, arise in cases of non-lineal descendants who share few of the cultural practices of the community that was the victim of the morally illegitimate removal.

These sorts of cases have given rise to considerable debate. Some suggest that such claimants can still continue to be harmed by injustices that a historic morally illegitimate removal of a cultural artefact might have involved. Alternatively, it might be suggested that these individuals have been wronged by a historic morally illegitimate removal of a cultural artefact, if the removal deprived them of possessions that would otherwise have been theirs. In either case, it might be argued that such claimants could yet have some weaker basis for having a close relationship to the morally illegitimate removal of the cultural artefact.

However, it should be acknowledged that critics have urged that it can often be difficult to establish a direct causal relationship between harms to currently existing claimants, and a historical injustice in the distant past. Similarly, it may be difficult to establish whether an artefact would in fact have been possessed by particular descendants had the morally illegitimate removal of the artefact not occurred. Moreover, there is also significant debate about the length of time that rights of inheritance endure. Finally, in the case of non-lineal descendants, there is often more scope for debate about how to identify legitimate rightful descendants of a historic community.

In view of these criticisms, it might be alleged that certain claimants do not have a sufficiently close relationship to a past morally illegitimate removal of a cultural artefact, for that relationship to have any meaningful bearing on the strength of their present claim to that artefact. With the above in mind, please answer the following question:

What basis is there for believing that the claimant shares a close relationship to the morally illegitimate removal of the cultural artefact?

Does the artefact have genuine and enduring value for the claimant’s culture?

Some have argued that cultures can have some moral claim to an artefact just when the artefact has a genuine, enduring value for that culture. On such views, a community might also be understood to have some moral claim to an artefact that it has not inherited, made, purchased or been given, if the artefact has sufficient aesthetic, historical or other value to the members of that community’s culture.

In considering this issue, it is important to consider that artefacts can have importance to claimants in quite different ways. Amongst other things that might be relevant to specific cases, users are encouraged to think about the role of the artefact in the religious, spiritual, cultural, or political life of the claimant, as well as the history of their culture. Moreover, they might also consider the potentially symbolic nature of the artefacts, as a symbol of collective ideals or group identity. Artefacts may also play an important cultural role as ceremonial or historical objects that serve to link the claimant with their ancestors.

Now, consider the cultural institution’s relationship to the artefact . . . Does the artefact have an important cultural value that is being adequately served by the cultural institution that currently possesses it?

It is sometimes claimed that cultural institutions have a moral obligation to maintain their collections. One reason for this is that these institutions serve an important social function by preserving and enabling access to culturally important artefacts for various valuable purposes, including education, the advancement of knowledge, and aesthetic worth.

So, in thinking about the strength of a cultural institution’s moral reasons to retain an artefact, we need to think about the cultural and scientific value of the artefact in question, and whether its retention would enable a cultural institution to fulfil its social function, by advancing the cultural value of the artefact.

As well as considering the cultural value of the artefact itself, users should also consider how the artefact is currently being made available to the public, or otherwise being used by the institution. In short, they should consider whether the institution is realising the cultural value of the artefact for the public it serves. For instance, if an artefact is not on easily accessible public display, nor currently the subject of academic research, nor currently undergoing restoration, nor being used in community outreach projects, then it is more challenging to establish that the institution has a strong moral reason to retain the artefact in the interests of serving the values of education, the advancement of knowledge, and aesthetic worth.

With the above in mind, please answer the following question:

Does the artefact have an important cultural value that has been adequately served by the cultural institution that currently possesses it?

Is there a credible concern that returning the cultural artefact to the claimant could undermine the continued existence or safety of the artefact?

In some cases, there may be grounds for believing that returning an artefact to a claimant would raise credible concerns about the continued existence or safety of the artefact. Amongst other things, the continued existence or safety of cultural artefacts might in some cases be put into jeopardy by environmental pollution, warfare, theft, and/or inadequate care. Alternatively, if the claimant has communicated that the respectful treatment of the artefact requires its ritualistic destruction or burial, this could also give grounds for another kind of credible concern that returning the cultural artefact to the claimant could undermine the continued existence or safety of the artefact.

Of course, the explanation as to why returning a cultural artefact would raise credible concerns about its continued existence or safety of the artefact can have important implications for the arguments both in favour of and against restitution. At this point though, the aim of this question is only to establish whether there is any credible concern about the return of the artefact in question. If the user answers ‘Yes’ to this question, the explanation for this concern will be explored in further questions.

The claim that restitution might undermine the safety or existence of the artefact must of course be evidence-based, and not based on disingenuous or antiquated assumptions about the ability of claimants to safeguard artefacts of value. Moreover, users should also consider any shortcomings of the current institution’s capacity to adequately safeguard, display, or use the artefact when assessing the extent of this threat.

With the above in mind, please answer the following question:

Is there a credible concern that returning the cultural artefact to the claimant could undermine the continued existence or safety of the artefact?

Does the credible concern about the existence or safety of the artefact following its return arise due to conduct that the claimant believes is required for the respectful treatment of the artefact?

Cultural institutions have an obligation to ensure the safety of the cultural artefacts in their possession. If there is a credible concern that returning the cultural artefact to the claimant could undermine the continued existence or safety of the artefact, then it is important to assess why this is the case.

In some cases, claimants might communicate that the respectful treatment of a cultural artefact requires treatment that necessitates the destruction or ritual burying of the artefact. In such cases, the institution’s moral reasons to retain and safeguard culturally significant artefacts, come into stark conflict with the moral reasons to respect the community’s own views about the cultural meaning of a given object. Notably, these views may reflect non-Western ideals of what constitutes the true preservation and purpose of the item.

Yet, in other cases, the credible concern about the existence or safety of the artefact arises from other extraneous factors (such as environmental pollution, warfare and theft) that are unrelated to the community’s view about what is necessary for the respectful treatment of the artefact. In such cases, a credible concern about the existence or safety of the artefact following restitution strengthens the case against returning the artefact. The reason for this is that cultural institutions have a moral obligation to safeguard artefacts of significant cultural value in promoting the values of education, the advancement of knowledge, and aesthetic worth.

With the above in mind, please answer the following question:

Does the credible risk to the safety or existence of the artefact arise from treatment that the claimant believes is required for the respectful treatment of the artefact?

Is the holding institution’s public display and use of the artefact incompatible with the claimant’s understanding of what is required for the artefact’s respectful treatment?

Even if a cultural institution’s approach to preserving a cultural artefact is compatible with its respectful treatment, claimants may yet raise the concern that the institution’s use of that artefact for public display, engagement, or research is incompatible with what is required for its respectful treatment.

In such cases, the cultural institution’s moral reasons to safeguard, display, and use the artefact to promote education, the advancement of knowledge, and aesthetic worth come into stark conflict with the moral reasons to respect a community’s own views about the cultural meaning of a given object. However, this conflict does not similarly arise where the public display and use of the artefact is not incompatible with what the community believes is required for the respectful treatment of the artefact.

This question only assesses whether the conflict mentioned in the previous paragraph arises. However, it should be acknowledged that a different conflict can arise in this area. There may be some cases in which the claimant’s views about what is required for the respectful treatment of the artefact could seriously conflict with the moral values of both the cultural institution itself, and the society it serves. For example, such circumstances might arise if there are grounds for believing that future access to the artefact following restitution might be denied to certain groups on exclusionary or illegitimate grounds. Here, there may be a concern that returning the object to the claimant in these cases would facilitate actions that conflict with the moral values of the cultural institution and the society it serves.

If there are reasonable grounds for believing that this conflict arises in the case under consideration, it is recommended that this is raised at the end of the decision aid, when the user will be given the opportunity to add details about particular features of their case.

With the above in mind, please answer the following question:

Is the public display and use of the artefact incompatible with the claimant’s understanding of what is required for the artefact’s respectful treatment?

Would the return of the artefact reasonably be expected to enhance its cultural value or to enable better access for a wider range of communities?

Cultural institutions can be particularly well-placed to culturally significant artefacts are safeguarded and used in manner that promotes education, the advancement of knowledge, and aesthetic worth, due to the various resources available to them. However, in some cases these values might be better served by returning the artefact in question to the claimant.

For instance, returning an artefact to its original intended context might enable an enhanced appreciation for its aesthetic and/or historical value. Of course, it should be noted that artefacts cannot always be returned to their original context in this way. Alternatively, the return of the artefact might in some cases facilitate better access for a wider range of communities.

If either of these claims are true, this would significantly weaken the argument that the cultural institution’s obligation to retain the artefact can be grounded by its role in safeguarding and widely promoting the values of education, the advancement of knowledge, and aesthetic worth. The explanation for this is that if the return of the artefact would reasonably be expected to enhance its cultural value or enable more widespread access to it, then the very values justifying the institution’s retention of the artefact are better served by returning it to the claimant.

With the above in mind, please answer the following question:

Would the return of the artefact reasonably be expected to enhance its cultural value or to enable fairer access to it?

Will the claimant community face difficulties in readily accessing the artefact in its current institution over the long-term future?

If the public display of the artefact is compatible with its respectful treatment, and such display is the best way to realise its cultural value, the moral reasons in favour of retaining the object may yet be weakened if the claimant in particular is unable to readily access an artefact to which they have some moral claim, even a weak one.

Claimants may be unable to access and, in certain cases, use artefacts held in cultural institutions for different reasons. However, there may be steps that institutions can take to facilitate easier access to the artefact for certain groups; these may include providing funding for visits, or arranging long term loans of artefacts to the claimant. If the institution has already taken meaningful steps to achieve this, or has a demonstrable commitment to doing so, it is suggested that this is detailed in the explanatory notes.

With the above in mind, please answer the following question:

Will the claimant community face difficulties in readily accessing the artefact in its current institution over the long-term future?