Who’s On First? The Communication Gap in the Transparency Discussion

Posted on June 10, 2010

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Earlier this week I posted some comments from Attorney William Pearlstein in reference to Italy’s refusal to release the photographs seized from illicit antiquities trader Giacomo Medici (see “Is Italy ‘Asking For It’ By Refusing to Release the Medici Photographs?“).  Pearlstein argues that Italy should release the photographs so that collectors can perform due diligence to check to see if an item they wish to purchase was illegally excavated. While the issue has been previously discussed, the sharpness of Pearlstein’s comments caused some interesting reactions (see David Gill’s “Christie’s, the Medici Dossier and William G. Pearlstein”, Paul Barford’s “More Conspiracy Theory: Gill and the Medici Files” responding to comments on Gill’s post, and Derek Fincham’s well-tempered “More Reactions to the Medici Dossier”.)

I made note of the intensity of the cultural property debates in Ethical Issues in Cultural Property Law Pertaining to Indigenous Peoples, but the real problem in the debate is not substantive.  Instead, it is that the parties are talking at each other, and from different perspectives.

Years ago someone gave me the very good advice that if someone comes to you with an emotional concern, in order to assuage them, you have to give them an emotional response.  Same thing for logical problems.  An example is that if a woman goes to her husband and says, “I feel like you don’t find me attractive anymore,” and his response is, “But you have no reason to feel that way,” then he has not addressed the emotionally component of her complaint, only the rational component, and she will be left unsatisfied.

With this in mind, it is my opinion that the dissatisfaction expressed in Paul Barford’s and David Gill’s responses to Pearlstein’s comments are a result of the fact that Pearlstein is speaking from a legal perspective, while Barford and Gill are purportedly speaking from a moral and/or ethical perspective. Gill had said that Christie’s should pull the auctions that he asserts are in the Medici polaroids, and quite plainly said it was the “ethical” thing to do.

In The Ethical Trade in Cultural Property: Ethics and Law in the Antiquity Auction Industry, I argued for a stronger concentration on ethics in the auction industry. I did so, however, by emphasizing the potential capitalistic benefit of such a focus. The simple fact is that in a capitalistic system, it is unreasonable to expect a business to cater to highly variable moral values. If you want the law changed, go to the legislature. If you want a business to change their practices, make it economically viable for them to do so. Accusations of immorality have historically had little effect on legal business practices.

If the two “camps” have any actual desire for meaningful discourse, they’ll have to engage in honest negotiation tactics, keeping in mind that legal concerns cannot be addressed with emotional arguments, and that the reverse is also true. To pepper what is supposed to be a legitimate argument with personal attacks and tirades can undermine the legitimacy of the entire argument.

I am reminded of one of my very first posts on this blog, “Radical Archaeologists as Nazis and Goose-Stepping.” While apparently not much has changed since November of 2008, perhaps it should.

[EDITS: Per the request of Paul Barford and to avoid confusion for non-lawyers, I changed "repatriation debates" to "cultural property debates," but if Italy had in fact filed the appropriate diplomatic request for return of the objects on auction at Christie's, it would have been one for repatriation.  Also per Paul's request, I clarified that his responses pertained to comments on Gill's post, not directly to Pearlstein's remarks.]