Our assumption of heritage’s inherent value

The idea that heritage has inherent value is certainly not new or unique. In fact, it is so deeply ingrained in our commitment to, or investment in, cultural heritage that we do not often stop to examine it. It means, in short, that there is something about heritage that gives it value that belongs uniquely to heritage, is created by the heritage itself, and can only exist within the heritage.Footnote ¹³ This inherent value is what prompts us to think of heritage as irreplaceable,Footnote ¹⁴ as existing for its own sake,Footnote ¹⁵ as almost having dignity (to borrow from the Kantian imperative).Footnote ¹⁶ Here, I problematize the attribution of inherent or intrinsic value both to heritage as a set of practices and discourse and to individual items, artifacts, or manifestations of heritage. It is unclear from where this notion of inherent value in relation to heritage came. It seems to have been around since at least the nineteenth century. Early accounts of the history of heritage protection focus on the nineteenth century as a point in which our concern for heritage safeguarding galvanized into legal action. It may be at this point, from a legal perspective, that we came to understand heritage as having inherent value.Footnote ¹⁷

If this history, which focuses on Western Europe and particularly the French Enlightenment, is true, then there are two key things driving this move toward inherent value. One is humanism and its accompanying secularism;Footnote ¹⁸ the other is the protection of elites and their identities in the face of calls for social reorganization. On the first, one of the things the French Revolution and the Declaration of the Rights of Man and of the Citizen of 1789Footnote ¹⁹ called for was the separation between church and state. The reason for that call was to turn away from the manipulation of the masses by religious authorities, to diminish the privileged role of church in social and legal institutions, and to effectively replace organized religion with a secular philosophy based on the ideas of liberty, equality, and fraternity.Footnote ²⁰ The replacement of religion with humanist philosophy also tracks closely with the idea of the inherent rights of man and citizen, one that attempts to re-establish social and cultural membership not around religion as a cultural reality and mechanism of gathering but, instead, the state as an institution that wanted to separate itself from the power of religion by taking its place in social and cultural life.Footnote ²¹ To do so, the artistic achievements that largely derived from ongoing Catholic Church patronage, and that performed religious and educational functions via their display in churches and other religious spaces, needed to have another reason for existing. If they were no longer relevant because they reflected and taught religion, morality, and social norms, then they needed to exist simply on the basis of their artistic merit, which was inherent to the artwork or monument. In other words, inherent value exists to try and occupy the vacuum left by expunging the educational and religious functions of cultural objects and monuments with, quite bluntly, nothing at all. This strategy obfuscated the power and endurance of more archaic powers by rendering them redundant.Footnote ²² It was a fiction designed to make nothing into something that could re-stabilize the social fabric. A turn to intangible cultural heritage has come a certain way to reconnect heritage to social practices, but it is yet to fundamentally shift the field.

The same mechanics operate in relation to the elite-protective function of inherent value. After all, not all monuments and artworks were religious. A lot of them were already secular, and they primarily displayed the up-until-then ruling aristocracy, imposing their ways of life and preferences onto society as a whole via their portraits, landscape choices, and social scenes.Footnote ²³ Even when other subjects were included in the relevant artworks, they still were commissioned by elites so they represented an elitist gaze and worldview.Footnote ²⁴ As these elites lost their property (and, in some cases, their heads) during the French Revolution, their artworks, for what they were and what they represented, also came under attack. If one thought of them as representing a certain elitist view of the world that the French Revolution sought to displace and replace, then they needed to go; on the other hand, if there were some redeeming quality to them, which divorced these artworks from the context of their production, they could stay. Thus, inherent value became a means to salvage these objects and monuments. Of course, the consequence then is that we continued to elevate and praise aristocrats and aristocratic ways of life, reinforcing them as the pinnacle of human aspirations and achievement. We told ourselves that we separated those lives from the objects, but we kept on gazing at these lives as something that merited respect and protection.

More contemporarily, this idea of inherent value is deeply intertwined with what Walter Benjamin describes as the “aura” of the art object.Footnote ²⁵ Benjamin was himself very critical of this concept in his work on aura and authenticity, a theme to which I return below. For now, this historical example of the French Revolution had ripple effects elsewhere, of course. It has justified dispossession; it has enabled racism. Particularly during colonialism, for instance, European colonizers arriving in the Kingdom of Benin (largely contained in today’s Nigeria) were so astonished by the “inherent” artistic value of the Benin Bronzes that they disconnected from the historical fact of their production as the achievements of the local people. Instead, they thought that those bronzes were so sophisticated that they surely meant that Europeans had been to Benin before these specific colonizers had made it there and taught the “primitive” locals how to make those beautiful sculptures.Footnote ²⁶ And because they were masterpieces of art with inherent value divorced from the local society, they could (or even should) be taken to Europe to be displayed as part of a collection of the masterpieces of artistic achievement of humanity.

What this anecdote shows is that inherent value serves to divorce the heritage from its creators. It works well to connect heritage to all of humanity as long as this humanity works toward or represents stabilization of a status quo where elites get to spell out what culture is, how it is appreciated, and its value. Stabilization of political volatility is useful. And the instinct to insulate heritage from the same political volatility is very understandable and in some ways noble.Footnote ²⁷ Otherwise, purges would happen every time there was a major social change, and we would always be burning books and artwork, Nazi style.Footnote ²⁸ But this separation between heritage and its social and political context that inherent value produces is only useful as a temporary measure; otherwise, it is more often than not co-opted by elites to promote elite ideas and power relations.

Thinking of a contemporary example, imagine the ongoing dispute around the Parthenon Marbles.Footnote ²⁹ Among the ethical arguments that the British Museum advances to not return the marbles to Greece is the idea that the inherent value of these marbles means that they belong to all of humanity and are not just the product of, and part of the identity of, the Greek nation.Footnote ³⁰ More contemporary debates on return and restitution, even if they attempt to shift our attention toward vernacular values around heritage, still rely on the idea of great importance to humanity, which is a proxy for inherent value, to justify attention and protection from international organizations like the United Nations Educational, Scientific and Cultural Organization (UNESCO).

Therefore, in a way, inherent value does similar work to this idea of heritage belonging to all of humanity, which is important to live up to the UNESCO Constitution’s promise of peace through cultural understanding and cooperation.Footnote ³¹ But it also means that whoever gets to wave that flag (and that is often wealthier cultural brokers in wealthy nations) gets to effectively control it.

And, perhaps most crucially, inherent value (as administered within a discourse that privileges expert rule and Eurocentric elite perspectives) makes us turn away from the ways in which people relate to their own culture and gives us the legal tools to demonize those practices and separate people from their own culture. Once we do that, cultural creators and stewards will be less invested in safeguarding a culture that they can no longer use in their own terms, and we end up compromising cultural heritage (or at least its vibrancy) by separating the heritage from what made it vibrant in the first place.Footnote ³²

A contemporary example in the dynamics of heritage law is that of the economics of heritage.Footnote ³³ We tend to think of heritage as being hors de commerce or outside the stream of trade. In accepting this idea that heritage will somehow be sullied by its trade, heritage law treats economics as either unlawful or just, overall, a threat to heritage. We then create disincentives for people to use, and maintain alive, their own cultures because it becomes something “extra” and separate from them pursuing their own livelihoods. We also then get to the point where only those who can afford the time to focus on culture (that is, economic elites) get to produce it, save for producers of intangible cultural heritage, where the relationship to economics has become less problematic in recent implementation activity under the 2003 Intangible Cultural Heritage Convention.Footnote ³⁴ So we perpetuate this idea of the world’s cultural treasures being seen by a system of cultural patronage that focuses primarily on the elite gaze.

Being more critically aware of these dynamics helps us understand that heritage has no inherent value. It serves a social function, which is necessarily attached to other aspects of social life. To separate heritage from its social function is to spell out its doom or at least to allow heritage to be co-opted to promote a specific social status quo. That the law allows this co-option is a great example of the law being made largely by, and for the benefit of, white, cis, able-bodied, straight, property-owning men. We allow culture not to be a wellspring of social justice and reinvention but, rather, a means of conformity to injustice. Culture is about the fringe, questioning society and the social order. We accept that to be the case with art but somehow reject that the same should be the case with heritage. This conceptual incongruity to which we are so accustomed must go.

The pillar of authenticity

Authenticity is the idea that we need to be able to verify where heritage came from so that we can truly appreciate its value and worth. This idea comes from the art world, primarily, and the notion that cultural objects as non-fungibles (that is, one of a kind) need to have their non-fungibility ascertained so that we can properly value them in the market.Footnote ³⁵ It spills onto cultural heritage law because cultural heritage, at least in its origins, seems to be simply old – and nationalism-serving – art. The legal origins of authenticity, from a Western perspective, go further back than inherent value. They go back at least to the first millennium BC in China and Europe.Footnote ³⁶ A Christianity-centric account would suggest that authenticity came from the need to verify relics, and their worth, as they travelled throughout Europe to validate and expand Christendom itself.Footnote ³⁷ To have a sacred object in a parish meant some mystical power and drew people into the new faith. Because the origins of Christendom are in the Middle East, these objects needed to travel from there at least initially, but one needed to be able to ascertain that a fragment of the Holy Cross was just that rather than a piece of wood someone picked up just outside the door. In some ways, thus, authenticity goes hand in hand with justifying and enabling the expansion of ideas, authority figures, and institutions in an empire. Note here the intertwining with religion, which mirrors the discussion of inherent value in the previous section.

Another historical example of the use and importance of authenticity goes back to Benjamin. In his work The Work of Art in the Age of Mechanical Reproducibility, Benjamin engaged with the idea of authentic works of art, and the aura they contained.Footnote ³⁸ That is an idea that has maintained a long and powerful grip on the imaginaries of how we conceive of and regulate heritage. Culture, and the heritage within it, is at its best when it has this aura (which is a version of intrinsic value) and the authenticity that comes with it. What most people who still use Benjamin and aura to justify heritage safeguarding forget, however, is how critical Benjamin was of this concept.Footnote ³⁹ Specifically, Benjamin thought that aura and authenticity led to the disconnection between culture and the context in which it arose. It led to elitist numbness and manipulation and, in many ways, enabled Fascism.Footnote ⁴⁰ In other words, authenticity has the effect of separating culture and politics in potentially very counterproductive ways.

Other, more contemporary, examples of authenticity at work relate to a painting attributed to Leonardo Da Vinci, Salvator Mundi,Footnote ⁴¹ and the destruction of the World Heritage site of Timbuktu during the civil war in Mali.Footnote ⁴² Salvator Mundi is a painting attributed to Leonardo Da Vinci and hailed as the ultimate lost-and-found story. It went to auction and fetched an astonishing US $450 million. And then its authenticity, already confirmed by some experts, was disputed by others, and now the painting is no longer considered to be an “authentic” Da Vinci.Footnote ⁴³ Its valuation plummeted, and people are less interested in seeing it. And then there’s Timbuktu, historically an epicentre of Islamic scholarship and worship in Africa. During the civil war in Mali in the 2010s, Timbuktu came under attack by a radical Islamic faction, and it was destroyed. World Heritage rules require that a cultural site, for inscription on the World Heritage List and having “Outstanding Universal Value,” be authentic.Footnote ⁴⁴ After destruction, the local residents rebuilt many of the eleventh-century mausoleums. Were they still authentic? And what does this possible loss of authenticity mean?

These examples showcase the work of authenticity as a value-creating, gatekeeping conceptual pillar.Footnote ⁴⁵ It allows experts to determine whether a cultural object or site has value, and it is these experts, and not the communities that create the heritage, that get to determine whether culture is worthwhile, whether it receives resources for its safeguarding, whether it is worth seeing, visiting, appreciating. The law has largely enabled authenticity and its reign. Normally, lawyers and legal institutions are very deferential to art and heritage experts in these matters. The law is preoccupied with authenticity, but it dares not question what work it does and whether the work is just.Footnote ⁴⁶ It simply assumes that justice will derive from upholding and reinforcing authenticity. The law plays a key role in shoring up this pillar, but we need not take it for granted. Authenticity can play a similar elite-protecting role to inherent value (in fact, as Benjamin in the 1930s and even my description of the concept above show, they often go hand in hand). But we must not allow our own ghosts to separate heritage from the people who, on justice grounds, we have vowed to defend.

Human rights as a panacea for renewal of cultural heritage law

Human rights are the bread and butter of a justice-oriented international legal order.Footnote ⁴⁷ They are also at the core of humanism as a belief and morality system that has, since the French Revolution’s 1789 Declaration on the Rights of Man and of the Citizen I mentioned above, sought to replace organized religion as a key structuring backbone for social relations. In the context of cultural heritage, safeguarding human rights play an integral role to the extent we recognize the right to participate in cultural life and the rights of minorities to their own cultures.

For present purposes, I want to focus on the right to culture as a relatively contemporary, twentieth-century, United Nations-era phenomenon. From a legalistic perspective, the idea of connecting human rights to culture stems from instruments like the Universal Declaration of Human Rights,Footnote ⁴⁸ the International Covenant on Civil and Political Rights,Footnote ⁴⁹ and the International Covenant on Economic, Social and Cultural Rights.Footnote ⁵⁰ But, of course, this idea that human rights and culture intertwine is not obvious or settled. From the origins of twentieth-century human rights movements to today, there have been those who query human rights and the attempt to replace religion as an organizing set of practices and institutions and an imperial imposition (partly because it seeks to displace the religious monopoly of local elites, like it did in the French Revolution).Footnote ⁵¹ There are also those who see in human rights a pathway to protection against, and emancipation from, harmful cultural practices.Footnote ⁵²

The debate between cultural universalism and relativism in human rights goes back at least to the 1940s when the Universal Declaration was being drafted.Footnote ⁵³ There, cultural heritage as a physical marker of culture was not often at stake, but cultural practices that we may describe today as intangible cultural heritage were very much at the forefront. Anthropologists decried the imposition of human rights and its calls for universalism on cultures that they sought to appreciate in their differences, whereas human rights sought to find commonalities. Never mind that anthropology itself as a discipline has very often been charged with the same imperialism from which they sought to protect peoples outside the North Atlantic;Footnote ⁵⁴ anthropologists now saw human rights as an ideology, rather than the empire that facilitated their fieldwork, as the problem.

Over time, even anthropologists have come around to embracing the idea of human rights.Footnote ⁵⁵ And human rights became universally hailed as a language of emancipation and “empowerment,” to use a favourite liberal trope. And it certainly has those effects. But human rights can also judge and flatten culture.Footnote ⁵⁶ And, most importantly, it will not necessarily do everything we promise it can do. Let us look at Indigenous rights, for instance. The 2007 United Nations Declaration on the Rights of Indigenous PeoplesFootnote ⁵⁷ and the 2016 American Declaration on the Rights of Indigenous PeoplesFootnote ⁵⁸ both have a number of provisions specifically dedicated to Indigenous heritage and culture. In fact, as Karen Engle has persuasively shown,Footnote ⁵⁹ culture is the backbone of all Indigenous rights, for better or worse. These provisions on heritage in both these instruments recognize that Indigenous peoples have the right to access and benefit from their own heritage and loftily declare such. But they fall short of creating effective remedies through which these rights can be exercised.

Let me be clear, international human rights law is terrific in many ways and a great aid to how we think about cultural heritage and the power within it. International human rights law in the context of heritage forces us to think outside of heritage as a static thing with inherent value and to think of heritage as something that matters because it is important to human beings and, at the very least, their identities.

But human rights cannot always deliver everything we want from heritage. The excessive focus on declaratory rights over remedies, for instance, exemplifies that limitation. Further, human rights require individualization, which does not always sit well with culture as a collective endeavour.Footnote ⁶⁰ Finally, the human right to culture is relatively weak, left at the mercy of subsidiarity and the nation-state’s own description of what culture is and who it serves.Footnote ⁶¹ Therefore, the emancipatory promise of human rights, particularly international human rights, as a pathway against the state when the state fails is undercut in the context of culture.

Human rights law is a language of power that transcends religion and its elitism. It is also, in its legalistic version, relatively open to being used by vulnerable groups (in fact, so is precisely its objective). But the same legal mechanisms that promote emancipation, in the name of legitimacy and the voluntary cooperation of the states that claim to be bound to them, tend to sacrifice culture as being too diffuse, individualize the collective, and defer to state sovereignty and subsidiarity particularly against historically disadvantaged groups like minorities and Indigenous peoples.Footnote ⁶² As these groups lack resources to go against the state in other fora, the human right to culture ends up serving the same nationalistic and disciplining narratives that the idea of human rights was meant to undermine in favour of a universal humanism.

Therefore, regardless of our rejection of human rights in the name of relativism, or our embrace being undercut by legal mechanisms engaging poorly with the ideas of culture, identity, and heritage, human rights is not the solution to all problems. Nor is it meant to be. It can work as a backstop and infuse cultural heritage law with more participation, but it cannot transform the underlying logics of heritage law. It does important work in humanizing the stakes of cultural heritage discursively, but its legal mechanisms are weaker than we like to acknowledge. Being critically aware of these shortcomings does not necessarily mean that we should give up on rights; rather, it means that we need to be more mindful of where strategic and tactical possibilities lie, instead of putting all our proverbial eggs in the humanist or human rights basket.

Cultural heritage law’s reliance on expertise and expert rule

What this notion means is that, much like in other areas of law and governance,Footnote ⁶³ we depend on experts to tell us what things mean, how to value them, and what we value them for. So, we end up in a system in which it is largely not the culture creators but, rather, the outsiders who make themselves experts on that culture as consumers (some of whom can be creators, but their creator credentials are seldom why they are deemed experts) who get to decide whether something is heritage, how it is safeguarded, and for what purposes it is safeguarded.

This notion of expert rule is prevalent most firmly in international heritage law. But, because international heritage law trickles down to domestic practices very effectively,Footnote ⁶⁴ it is worth considering in general. As with other challenges in heritage law, intangible cultural heritage and regimes under it offer a counterpoint, but, in my view, they are still meant to fundamentally transform the field at large. In international heritage law, the origins of this practice lie with UNESCO and the Cold War. When UNESCO was first created, and started working toward implementing its culture mandate, the voices in the conversation were local craftspeople associations and mayors around many parts of the world (even if, admittedly, mostly in Europe). But then, as UNESCO initiatives turned to standard setting, experts took control.Footnote ⁶⁵ Why is that? One explanation, and the one I am using for present purposes, is that the reliance on local craftspeople associations and other mayors was seen as two things: first, too granular and difficult to generalize, second, too political.

On granularity and the difficulty of generalization, the issue is that there was no common language that these organizations spoke. They also spoke to their own interests and did not purport to speak to the entire heritage domain wherever it existed around the world. The lack of generalization made them too small, too niche, and, therefore, their voices were difficult to distil and easy to dismiss. A similar dynamic happens when we talk about culture as a local concern. On politics, the problem was that, at about the same time that UNESCO was starting to work, the Cold War grew in prominence. Then everything became polarized and paralyzed. It was impossible to create instruments, norms, and institutions if they were political. They needed to appear as neutral, scientific, apolitical.Footnote ⁶⁶ Enter the experts as scientists, who were, speaking to the first point, adept at distilling local granularity into generalizations. Hence, the rule of experts. Over time, every UNESCO treaty has deferred in one way or another to expert rule to tell us what heritage is, whether it is worth safeguarding, and how to safeguard it.Footnote ⁶⁷

On its face, there is nothing wrong with expertise. It is people invested in creating a common language of practice and undertaking said practice (and with the time and resources to do so). But the problem here is that, over time and almost subconsciously, experts have become increasingly self-referential, stopped deferring to the communities that created or lived in, with, or around heritage, and became extremely invested in protecting heritage against all threats, even the sources of the heritage itself.Footnote ⁶⁸ That is part of the reason why we end up with ideas like intrinsic value and authenticity. The problem here is that heritage divorced from people is dead and static. Also, over time, experts became so invested in the operation of heritage law that heritage law could not move forward without them, and the experts were paid by states to make the system function. So, we get to the point where experts are either working for the heritage (separated from creators) or for the state that pays these experts (which, in the case of minorities, often oppress these cultural creators and would rather have these cultures disappear in favour of a single or at least fully harmonized national narrative) instead of the people whose causes they should be representing.

For instance, in the World Heritage system, nothing gets inscribed unless at least one out of three expert non-governmental organizations mentioned in the text of the World Heritage Convention says heritage should be listed as world heritage.Footnote ⁶⁹ These experts were present when the Convention was drafted.Footnote ⁷⁰ Now they are paid for by states to visit and assess potential world heritage sites (or, in the case of monitoring, existing ones).Footnote ⁷¹ The livelihoods of these experts depends on them being used by states. And we are supposed to believe that they are entirely independent, that there is no incentive for them to privilege a sanitized national narrative, for instance, over one that talks about minority resistance against the state in a World Heritage site. Even if we do believe that to be the case, we are further asked to believe that, in speaking for the heritage, these experts have a better sense of how that heritage has come about, what it means, and how it should be safeguarded than the local communities who created and have safeguarded that heritage for years, sometimes centuries. However well-meaning these experts are, the system works in this direction almost subconsciously.

In other words, we have chosen privileged expertise over the local connections. We have done so, much like with the other pillars and assumptions we discussed earlier today, as a means to separate heritage from distracting politics. But we did too good a job, and heritage lost its connection to the vibrancy and inherently political nature of our identities. We lost sight of the forest of heritage and identity for the individual trees of the beautiful things we sought to safeguard. By protecting heritage from ourselves, we have also cut off the supply of life and cultural connection that makes heritage valuable. We gave ourselves less opportunities to transform heritage through our connection to it, we became increasingly interested in heritage as a performance for outsiders rather than as a reaffirmation of our identity, we catered to expert expectations of what heritage should look like in an attempt to gain access to recognition and safeguarding resources. All of these actions set us down a path that allowed the regulation of heritage to change, rather than simply safeguard, that which it sought to regulate.

Being critically aware of this shortcoming invites us to rethink more broadly why we are doing what we are doing and in whose name. As legal scholars trained to think about justice, we need to think of heritage justice as being social justice rather than elitist expert justice. Therefore, the archaeology of these pillars and assumptions calls for a more political engagement with heritage. To do so gets us reassessing what we take for granted and should never have: why does heritage exist; why is it valuable; for whom is it valuable; and what is our role in using the law as a language of power to channel the power of heritage and identity?