Justice and the Cultural Heritage Movement: Using Environmental Justice to Appraise Art and Antiquities Disputes

20 Va. J. Soc. Pol’y & L. 43 (2012)

53 Pages Posted: 22 Mar 2012 Last revised: 27 Mar 2013

See all articles by Derek Fincham

Derek Fincham

South Texas College of Law Houston

Date Written: March 20, 2012


What does justice require? This paper aims to spark a conversation about the role of justice in art and antiquities disputes by introducing the concept of cultural justice. Borrowing from a principle known as environmental justice, cultural justice allows the application of critical scrutiny to the law and norms that govern cultural heritage. The history of environmental justice — including both its successes and failures — offers important lessons for the cultural heritage movement. Environmental and cultural injustice plagues the same nations and groups: Africa, Central and South America, and indigenous groups are denied the same environmental and cultural benefits. The cultural heritage movement has been subject to the same criticisms as the environmental justice movement, but has not had the benefit of an animating theoretical framework. The law strains to resolve art and antiquities disputes. Examining disputes through the lens of cultural justice allows us to move beyond thinking about art in terms of keeping it in museums (or the art trade) or returning it to its nation of origin. This paper applies Rawls’s theory of justice to cultural heritage and presents a taxonomy of cultural justice, examining in detail its distributive, procedural, corrective, and social aspects. Thinking about cultural justice allows a deeper understanding of the reasons why cultural heritage disputes are so difficult to resolve. By considering cultural justice, we can also begin to define the limits of what law and policy can do to remedy historical and contemporary art taking. These limits have eluded cultural heritage advocates, subjecting the cultural heritage movement to broad criticisms.

Keywords: justice, cultural heritage, art, antiquities, cultural property, looting, archaeology

Suggested Citation

Fincham, Derek, Justice and the Cultural Heritage Movement: Using Environmental Justice to Appraise Art and Antiquities Disputes (March 20, 2012). 20 Va. J. Soc. Pol’y & L. 43 (2012), Available at SSRN: https://ssrn.com/abstract=2026679 or http://dx.doi.org/10.2139/ssrn.2026679

Derek Fincham (Contact Author)

South Texas College of Law Houston ( email )

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