The Distinctiveness of Property and Heritage
By Derek Fincham.
This piece takes up the competing concepts of property and heritage. Recent scholarship views property as a series of connections and obligations—rather than the traditional power to control, transfer or exclude. This new view of property may be safeguarding resources for future generations, but also imposes onerous obligations based on concerns over environmental protection, the protection of cultural resources, group rights, and even rights to digital property. Yet these obligations can also be imposed on subsequent generations, and certain obligations are imposed now based on the actions of past generations.
This article examines the multigenerational aspects of property via a body of law which should be called heritage law. Heritage law now governs a wide range of activities some of which include: preventing destruction of works of art, preventing the theft of art and antiquities, preventing the illegal excavation of antiquities, preventing the mutilation and destruction of ancient structures and sites, creating a means for preserving sites and monuments, and even righting past wrongs. This piece justifies the new conceptualization in two ways. First, by showing that properly distinguishing property and heritage will allow us to better protect heritage with a richer, fuller understanding of the concept. And second, by demonstrating how current definitions lead to imprecise analysis, which may produce troubling legal conclusions.
A growing body of heritage law has extended the limitations periods for certain cultural disputes. This has shifted the calculus for the long-term control of real, movable, and even digital property. This can be acutely seen with respect to cultural repatriation claims—specifically the claims of claimants to works of art forcibly taken during World War II; or the claims by Peru to certain anthropological objects now in the possession of Yale University which were removed by Hiram Bingham in the early part of the 20th Century.