THE PUBLIC/PRIVATE DIVIDE

As Horwitz notes, the public/private divide (or distinction as he calls it) “… arose out of a double movement in modern political and legal thought.”Footnote ²⁹ This distinction, a product of the dominant Northern–Western framework of law, is, as he observes, intimately tied to the concept of sovereignty and the modern idea of the nation-state as the creation of a truly “public sphere.”Footnote ³⁰ However, this leads to claims of unfettered state power, which ultimately provokes a reaction among natural rights theorists to establish a private sphere that could protect individuals from these claims of power by the state.Footnote ³¹ It is from this basis that the divide between the public and the private is instituted in law.Footnote ³² Further, Barnett notes that this divide used in four different senses: (1) as a distinction between “substantive standards of regulation” (Was the harm to society or an individual?);Footnote ³³ (2) as a distinction between subjects of causes of action (Is it the government or an individual who brings the claim?);Footnote ³⁴ (3) as a distinction between the “subjects of legal regulation”Footnote ³⁵ (Is the regulation designed to limit the actions of governments or individuals?);Footnote ³⁶ and (4) Distinction in the “institutional framework” for enforcing legal regulation (i.e., should the state or private individuals guide the institutions that enforce the law?).Footnote ³⁷ Thus, the public/private divide has multiple, and often overlapping meanings. The words private and public are used in any or all of these ways, sometimes simultaneously.Footnote ³⁸ This divide, in all of its senses, influences the ideas of culture and property expanded upon on this article.

As a result, the public/private divide will be understood here in its broadest sense to refer to actions tied to the nation-state or not.Footnote ³⁹ So, it makes sense to understand the divide as Horwitz does; as a theoretical construct that historically

As Horwitz also notes, in the United States, this divide reaches its apex in the late nineteenth century and early twentieth century attempts to scientifically and rigidly separate law from politics by enforcing the separation between the public and the private.Footnote ⁴¹ The reaction to the rigidity this created was harsh. By the 1930s, the legal realists dismiss the public/private divide as purely ideological and based on political premises. While this progressive approach retreats after World War II as a reaction to totalitarianism,Footnote ⁴² by the 1980s, it was once again common in the literature to argue that this divide was in “decline.”Footnote ⁴³

But if the public/private divide is in decline, how can one explain its tenacious nature and its continued use in the literature? It is worth noting that most authors in the dominant tradition, however critical they are of the existence of the public/private divide in practice, have accepted the premise that the divide exists—rationalizing its existence either as a theoretical construct or as a by-product of political philosophy. As Lacey notes, “The difficulty lies in the fact that once one engages in a critique of the division, one gets sucked into the very categorization one is attempting to undermine.”Footnote ⁴⁴ Horwitz, too, implicitly notes the continued importance of the divide in the history he sets out. And Kennedy explicitly acknowledges the salience of the public/private divide to legal theory when he writes, “[t]he history of legal thought since the turn of the century is the history of the decline of a particular set of distinctions—those that taken together, constitute the liberal way of thinking about the social world.”Footnote ⁴⁵ Regarding the public/private divide, this means that at a minimum, scholars would agree that this distinction forms a framework in which law takes shape within the tradition of the Global North–West.

Therefore, it is the position of this article that the public/private divide continues to have relevance as a core dichotomy in legal thought in the Western tradition. It will be asserted that this salience persists even if, or especially when, it is difficult to apply in practice. This is because it is at these junctures that invocation of the divide is most obviously incongruous. This inconsistency leads to uncomfortable questions as to why the divide is being used in the first place. The point here is, as Lacey suggests, to see how this divide operates “ideologically.”Footnote ⁴⁶ And ultimately to argue that it is deployed strategically for political aims. To build on this point, it is necessary to undertake the second of Kennedy's recommendations, to examine this divide in application in political theory as this will help explain the meaning of the divide and its connection to cultural property. Later, Kennedy's third and fourth recommendations will be returned to in the concluding section of this article.

THE CONCEPT OF PROPERTY IN POLITICAL THEORY

As was demonstrated earlier, the public/private divide is still considered a salient aspect of the framework of law within the dominant legal structure in the Global North–West. From this perspective two things become clear: First, one must understand how this framework manifests itself in the structure of arguments about cultural property. This requires in depth examination of the two components of cultural property; concepts of culture and concepts of property. Second, to understand how culture and property have been interpreted in cultural property one must understand the meaning of these concepts as they have developed (and been criticized) in political theory. From there one can meaningfully assess the way these concepts fall into the semiotic discourse of the public/private divide. Consequently, the logical starting point for this examination is to begin with an exploration of the theories of property which have shaped the concept of property in the Global North. Following on this discussion the concept of culture will then be examined.

Classically, liberal theory conflates the concept of individual liberty with the ability of the individual to own property. As John Locke put it,

Therefore, Locke considers the right to property as coextensive with people's natural rights and a just social order. Moreover, this quotation is taken from a section “of political or civil society,” which implies that Locke is locating property at the root of natural lawFootnote ⁴⁸ and on this basis, asserting that property is the root of the political order of society. Consequently, in one rhetorical move, Locke makes the right to private property the ultimate guarantor of political order. This linking of private property and public order is important for understanding later theories of property and makes Locke's work worth examining in some further detail.

According to Locke, the idea that public order rests on a foundation of private property is itself tied to notions of individual liberty. Underkuffler notes that for Locke (and the English Whigs more generally) property is given a broad definition. To Locke, property includes more than things, it is a natural right of persons that is present in nature; for Locke property includes a persons' “lives, liberties and estates”—property includes the human person, his or her dignity and physical property.Footnote ⁴⁹ Underkuffler explains that this broad notion of property produces a “moral space” in which the individual can operate,Footnote ⁵⁰ ideally as a space for self-actualization. In sum: Locke defines property broadly to create a private space for self-actualization of the individual person. Moreover, to Locke property is an a priori qualification for full political participation. As a result, for Locke, private property is a requirement to enter the public.

Consequently, Locke's notion of property is “Janus faced.” According to Locke, property is simultaneously the guarantor of private liberty and the ticket to enter the public sphere—and it is this dual nature of property that has endured conceptually. This duality implies that there is a link between the role of the state in protection of the right to property and an individual's ability to self-actualize. Property does this by creating a private sphere in which the individual is free from interference. Conversely, this space creates an opposing public space into which individuals enter when they need to enforce their rights or protect or procure property. Therefore, the relationship between the public and private sphere that Locke identifies creates a conceptual divide that all theories of property, and thus cultural property, must address.

Historically, key theorists adopt Locke's Janus-faced view of property. However, where agreement tends to break down among these theorists is over the nature of the relationship between private property and public participation. One important theorist who disagrees with Locke on this point is Immanuel Kant. Like Locke before him,Footnote ⁵¹ Kant believes that the state is designed to ensure each person's freedom is respected. Further, like Locke, Kant derives the legitimacy of the state from a social contract. As a matter of fact, Ellis calls Kant's point of view “revisionist contractarianism.”Footnote ⁵² However, it is here that the similarities between Locke and Kant end.

Kant's ideal state is a “just community” in which individuals “deal with each other at arm's length.”Footnote ⁵³ This vision of the state has been called a minimal liberal stateFootnote ⁵⁴ because in a departure from Locke, Kant sees the state at as a legal entity arrived at by social contract to minimally secure an individual's rational interests.Footnote ⁵⁵ Thus, Kant wants to limit individual freedom in the name of the interests of the community in so far an individual's rational interests interfere with the rights of others.Footnote ⁵⁶Consequently, to Kant, the state's right to act derives from an individual's natural right to autonomy, but this autonomy can be limited in the name of the rational interest of the creation of a civil society.Footnote ⁵⁷

From this natural right to autonomy, Kant derives all other rights. He does so in a manner that has been called formalistic.Footnote ⁵⁸This formalism is evident when Kant identifies property rights as rights in which we “presuppose a natural right” but that this “does not mean that we were originally or by nature entitled to property.”Footnote ⁵⁹ For Kant, property rights are not natural rights in the sense meant by Locke; they are a right that is a natural consequence of a civil society. It does not predate civil society but is a consequence of people joining together in a state.Footnote ⁶⁰As Kant explains:

As such, Kant's approach to property is that prior to the creation of the state property rights are “provisionally” guaranteed because “people will need to appropriate objects in order to survive” and so this right to possess things must be protected as part of the social contract in exchange for other social goods such as political stability.Footnote ⁶² Or as Kant puts “[i]f no one were willing to recognize any acquisition as rightful, not even provisionally so, before a civil state had been established, the civil state would itself be impossible.”Footnote ⁶³ But to Kant, the main difference is that in civil society the laws of property ensure that property is protected by principles of distributive justice.Footnote ⁶⁴Thus, for Kant, unlike for Locke, property rights exist prior to the state but are only fully protected once a civil society is created.Footnote ⁶⁵

From this basis Kant concludes that property rights are not to be held in common and that any form of property right other than private possession is contrary to the political order.Footnote ⁶⁶ A necessary precursor to this, however, is that a “sovereign” actor—the legislator or “ruler of the people”Footnote ⁶⁷—become (at least in theory) the supreme owner of the land, as this allows for property to be “distributed” as opposed to “aggregated.”Footnote ⁶⁸ By this, Kant means that the sovereign must theoretically “possess everything” because it is only if sovereigns hold this ability that they can then truly have the power to distribute the land to individuals.Footnote ⁶⁹ As a result, this means that no group in society (class, etc.) can hold land indefinitely because the sovereign can always withdraw this right with just compensation.Footnote ⁷⁰ However, as Ryan notes, “…. the paradox in all this, if there is one, lies in Kant's emphasis on the external, public sphere and yet, to push most of what we value in like into essentially private concerns.”Footnote ⁷¹ Thus, Kant, unlike Locke, believes that property rights do not predate but derive from the existence of the state. In sum, Kant, like Locke, sees property as a private right (based on the categorical imperative). However, Kant, even more powerfully than Locke, sees the basis for private property in the public sphere and the power of the sovereign.

This examination of Locke and Kant's theories of property leads to several conclusions of relevance at this point: Key theorists of property identify property as a private right. Key theorists also agree that private property is intimately related to participation in the public sphere. Therefore it can be concluded that that there is a clear relationship between the public and the private spheres within the concept of property. Where agreement breaks down, however, is over the best way to balance the Janus-faced nature of private property. It is this tension between the public and the private within concepts of property that theorists continue to struggle with.

THE RELATIONSHIP BETWEEN THE PUBLIC AND THE PRIVATE SPHERES

A more recent example of a political thinker within the Northern–Western tradition who has wrestled with the relationship between the public sphere and private property is Hannah Arendt. Arendt, like Locke and Kant, categorizes property as a private right. For example, Penner describes Arendt's approach to property as “a realm in which the individual engages in the use of tangible things to provide the necessaries of life…”Footnote ⁷² but, in a departure from Kant, it also contains the “mysterious side of a person's existence.”Footnote ⁷³ Consequently, for Arendt, property is necessary because it creates a space from which an individual can participate in the public sphere.Footnote ⁷⁴ Therefore, unlike the Locke or Kant, Arendt sees property from the perspective of its relationship to public participation, and as a result she is an important thinker on the public/private divide and its relationship to the political.

Arendt argues that under the conditions of modernity the institution of property has been eroded and been replaced with wealth. Unlike property, wealth is just economic power, and while property requires wealth, wealth does not require property.Footnote ⁷⁵ Arendt's complaint is that the modern focus on wealth has led to the decline of the institution of property and therefore of the private sphere.Footnote ⁷⁶And the decline of the institution of property troubles Arendt because her project is to try to reclaim a space for the public sphere in the wake of totalitarianism.

One of the issues Arendt has with totalitarianism is that it subverts the political space, which she describes as the space in which the public and private spheres meet. In an early essay, Arendt equates the ability to access rights (civil rights particularly) with citizenship. Thus, she recognizes that the “rights of man” were intimately identified with the “rights of peoples in the European nation-state system.”Footnote ⁷⁷ This identification of rights with the state is problematic as it creates individuals whose rights are not necessarily recognized by their government, the stateless.Footnote ⁷⁸ To Arendt, the problem of statelessness highlights a weakness in rights theory more generally—that rights depend on recognition by the state. This equation is fatal for her because, as she puts it, “[t]he calamity of the rightless is not that they are deprived of life, liberty, and the pursuit of happiness or equality before the law and freedom of opinion—formulas that were designed to resolve problems within their communities—but that they no longer belong to any community whatsoever.”Footnote ⁷⁹ This problem was clearly illustrated in the example of Nazi restrictions on Jewish cultural property that opened this article.

These ideas are expanded on in Arendt's discussion of totalitarianism. She notes in her discussion of the “total domination” necessary for totalitarianism that it is an advance on previous horrors not because “everything is permitted” under totalitarianism, an idea she notes that was present in utilitarian versions of liberal political theory, but that under totalitarianism—and this “normal people” reject—“everything is possible.”Footnote ⁸⁰ Norris argues Arendt believes “totalitarianism's ideological thinking and the breakdown of the structures that allow for political action in concert cripple common sense.”Footnote ⁸¹ Consequently, Arendt begins from the position that totalitarianism “destroys” the private—the sphere (as seen in the examination of Locke and Kant) of which property is a part.Footnote ⁸² This is an implicit criticism of the way that totalitarianism can use the state to ignore or subvert individual rights. As she notes, “The destruction of a man's rights, the killing of the juridical person in him, is a prerequisite for dominating him entirely.”Footnote ⁸³ Therefore, to Arendt, totalitarianism obliterates the private sphere leaving no space for the individual. Obliterating the private sphere, she argues, destroys the individual then cannot participate in politics—exercise political judgment—so that they are, as a consequence, unable to enter the public sphere.Footnote ⁸⁴ On this basis, Arendt views the removal of individual rights and destruction of the “judicial person” as a key step in “dominating them entirely.”Footnote ⁸⁵ For Arendt it is the relationship between judicial recognition of the person, protection of their property and then the ability to be fully recognized politically that is central.Footnote ⁸⁶ And once the individual is fully dominated, as Arendt notes, everything is possible.

Some of the unresolved issues these observations raiseFootnote ⁸⁷ form the basis of Arendt's general political theory, which is developed in her work The Human Condition. In this work, Arendt is concerned with the sphere of the active life (the vita activa)—which, in classical philosophy, was always contrasted with the preferred category of the life of the mind (the vita contemplativa)—a sphere that she felt defined an “underappreciated” series of activities that had come to the fore in modern society.Footnote ⁸⁸ To Arendt, the human condition is bounded by the finality of death, and in between birth and death, people live an active life. An active life is comprised of labor, work, and action. Each of these “activities” is carried out in a different “condition” or sphere of life. Labor is carried out in the “earth”(the “terrestrial” or physical sphere of life); work is carried out in the “world” (“civilization” and action).”Footnote ⁸⁹ Each of these spheres is defined by its relationship to two further principles, which are freedom and distinction. Labor is least related to freedom and distinction because it is biologically tied to the basic physical need to “produce and consume” in order to live; work is closer to freedom and distinction because it is tied to the need to produce and consume, but for utility, not survival. Work produces things, creating unnatural “spaces,” such as art or politics, which bring us together. Thus, work builds a space in which individuals can be distinct and create things to last beyond themselves.Footnote ⁹⁰ Work, she defines as free. Last, she holds that action is the “quintessential political activity” because it “allows humans to initiate a new course of events.”Footnote ⁹¹ Action is the epitome of freedom because it uses “diverse human agents” who act, and act in ways that have meaning (e.g., through speech, an innate human activity).Footnote ⁹² It is through this freedom that humans “reveal their political genius.”Footnote ⁹³ And for Arendt, politics is a positive activity in which people coordinate on common concerns. Thus, it is quintessentially a “public activity.”Footnote ⁹⁴

It is in contrast to the space required for public activities that the private emerges. As Arendt notes, “[i]t is with respect to this multiple significance of the public realm that the term ‘private’ in its original sense, has meaning. To lead an entirely private life means above all to be deprived of things essential to a truly human life: to be seen and heard by others, to be deprived of an ‘objective’ relationship with them that comes from being related to and separating from them through the intermediary of a common world of things, to be deprived of the possibility of achieving something more permanent than life itself. The privation of privacy lies in the absence of others; as far as they are concerned, private people do not appear and therefore it is as though they did not exist. Whatever they do remains without significance or consequence to others.”Footnote ⁹⁵ Therefore, the destruction of the public (which Arendt worries about earlier in the work) would also lead to the destruction of the private.Footnote ⁹⁶ This leads her to conclude that there is a “profound connection” between the public and the private, which reveals itself most fully in the idea of property and wealth as outlined earlier. She says that in premodern society, “[p]rivacy was like the other, the dark and hidden side of the public real, and while to be political meant to attain the highest possibility of human existence, to have no private place of one's own (like a slave) meant to be no longer human.”Footnote ⁹⁷ Thus, in a manner similar to Locke,Footnote ⁹⁸ she recognizes property as a historical precondition to political participation, as it gives an individual the means (and freedom) to enter the political.Footnote ⁹⁹

However, Arendt argues that in the modern world these two ideas are divorced, and that this divorce began with the rise of society. “[T]he rise of housekeeping, its activities, problems and organizational divides—from the shadowy interior of the household into the light of the public sphere …”—has, Arendt believes, challenged both the private and the political.Footnote ¹⁰⁰ For Arendt the rise of social, the emergence of activities formerly private, has had the effect of making property public; a point she makes through discussion of the rise of the term “commonwealth.”Footnote ¹⁰¹ And she argues, because property has become public, it has been narrowed conceptually to include the person itself, a proposition she traces to Locke (and his labor theory of property). Moreover, she believes this narrowing is dangerous. As she writes: “[t]he greatest threat here is not the ability of private ownership of wealth but the abolition of property in terms of a tangible worldly place of one's own.”Footnote ¹⁰² The removal of a physical space of property leads, in Arendt's view to the revelation of things that “should be hidden.”Footnote ¹⁰³ Thus, she argues that “[t]he most elementary meaning of the two realms [the public and the private] indicates that there are things that need to be hidden and others that need to be displayed publicly if they are to exist at all.”Footnote ¹⁰⁴ To Arendt, this distinction is illustrated in the private (not negative) nature of goodness, once public, it is no longer the “good.”Footnote ¹⁰⁵ Therefore, to summarize to this point: Arendt divides the human condition into three activities, labor, work, and action. Politics takes place in the sphere of action—where people take action in a plurality of individuals—and so the political must be public. In order for there to be a functioning political sphere, there must be a corresponding private sphere. Thus like the other theorists examined earlier, Arendt holds that a clear separation between the public and private is essential to the political.Footnote ¹⁰⁶

This need to separate the public and private leads Norris to note that for Arendt, “[p]olitical action consists of public speech and deed in a condition of plurality. Because it is essentially concerned with public appearance, politics is the realm of doxa, of opinion.”Footnote ¹⁰⁷ And if there is to be a plurality of people who act in public (separate from their private selves), who express their opinion to others there must be a way of deciding between those actions, of judging them as a political action.Footnote ¹⁰⁸ Consequently, Arendt bases her discussion of the ability to participate in politics (and thereby entering the public) on the ability of individuals to judge, a concept she borrows, from Kant in his Critique of Judgment. In this work Kant argues that our judgments of beauty are shared publicly,Footnote ¹⁰⁹ as opposed to mere questions of taste, which are personal. Beauty is a universal standard because it stems from our ability to “think in place of others,” a process that allows us to go beyond our mere subjective opinions and create a universal standard.Footnote ¹¹⁰ Thus, in a neat rhetorical move, Arendt incorporates Kant's aesthetic theory of judgment, which is often linked with culture, into her notion of the political. This is crucial for her because she moves her notion of culture into the public sphere. Her question, as Norris notes is “how to create a model of political judgment that will allow some judgments to be recognized as superior to others without collapsing this plurality into identity.”Footnote ¹¹¹ Borrowing from Kant she argues that it is this ability to noncoercively “woo” others to our opinion that allows us to exercise political judgment.Footnote ¹¹² Arendt then uses the idea of political judgment to explain how private individuals can participate in the political sphere and by extension in the public sphere.

Conceptually, Arendt's notion of “political judgment” leads to a need to protect private property as part of the private sphere within which this wooing can occur. Thus, Arendt, in this regard, is not so different from Locke and Kant in her identification of property as private and separate from the public sphere. However, Arendt tackles head on the problem of how to connect the public and private spheres, seeing them as mutually constitutive. Moreover, she does so without resorting to Kant's weak notion of contractarianism, which is open to exploitation by the state. Instead she turns Kant's theory on its head—she uses his theory of aesthetic judgment as an alternate conceptualization of the political. In making this link between aesthetics and politics (a link which Norris notes hasn't been uncritically received),Footnote ¹¹³ Arendt implicitly joins judgments of cultural worth—beauty and so forth—with political judgments; two issues that would otherwise seem opposed when looking at the idea of cultural property, since property is commonly seen as part of the private sphere, and culture is often thought of as a public good. However, Arendt provides a potential link between these two concepts through the idea of political judgment.

Thus, Arendt, together with Kant and Locke illustrate a pattern in leading political theories of property in which property is structured by the relationship between the public and the private. As is evident from this review, the public and private share a dichotomous relationship in which the preservation of each sphere is necessary for the existence and functioning of the other. Moreover, Arendt's use of Kant's theories aesthetic judgments adds a third element to this divide—the political as the link between the private and participation in the public sphere. And crucially, Arendt provides us with a clear link between ideas of culture and ideas of property, which makes Arendt's theories of property particularly important in the discussion of culture. These theories will now be examined in more detail.

THE CONCEPT OF CULTURE IN POLITICAL THEORY

The examination of the concept of culture in political theory picks up where the discussion of the concept of property left off—with a discussion of the work of Arendt. This is because, as noted earlier, Arendt's work on political theory raises a link between the concept of property and the concept of culture. In fact, unlike Locke or Kant, Arendt connects the public and the private (and thus property and culture) through her discussion of the concept of judgment and its role in political participation. In this discussion she focuses specifically on the role of culture in judgment, and thus implicitly links culture, the private and the public. Thus, Arendt's theory is a key link between culture and property within Northern–Western political, and consequently legal thought.

In her essay “The Crisis in Culture: Its Social and Political Significance,”Footnote ¹¹⁴ Arendt writes that “culture and politics belong together because it is not knowledge or truth which is at stake, but rather judgment and decision, the judicious exchange of opinion about the sphere of public life and the common world and the decision of what manner of action is to be taken in it…”Footnote ¹¹⁵ The link between the two concepts is found in “the capacity to judge,” which is “a specifically political ability…the ability things not only from one's point of view but in the perspective of all those who happen to be present.”Footnote ¹¹⁶ Arendt's political judgment is a specific type of judgment, which is valid for all those whose points of view the one making the judgment considers.Footnote ¹¹⁷ Additionally, since the judgment is theoretically based on objective information, this act of judging is public.Footnote ¹¹⁸ Moreover, because it is based on putting oneself in the place of others, and then (as noted earlier) wooing them to a point view, it is a political act, since it allows a judgment (generally thought of as private) to become public.

Interestingly, Arendt's act of political judgment is also about producing culture. For Arendt, culture is a specifically political act—a judgment made as to what is valid culture by considering the views of all those who the person making the judgment considers valid.Footnote ¹¹⁹ Consequently, Arendt stands for the idea that judgments about culture are political. In sum: According to Arendt, cultural judgments are a type of political judgment and therefore cultural judgment acts as a link between private opinions and public appreciation of culture. Thus, culture is inherently public because judgments about culture take place in the same way as political judgments. Moreover, according to Arendt, culture is removed from the private sphere by its need to be politically judged. Therefore Arendt's notion of culture builds on the public/private divide identified in the discussion of property in the previous section. Previously, it was concluded that for each of the key theorists in the dominant Northern–Western tradition, public participation rested on a strong private sphere, identified with a concept of property. This section examined how Arendt extended this discussion of the divide between the public and the private to include the idea of political judgment and how political judgment mediates between private ideas of taste and public ideas of culture. Consequently, one can derive from Locke and Kant the clear idea that property is situated within the private sphere and from Arendt that culture is located in the public sphere through the process of political judgment.

CRITICAL ANALYSIS

The preceding section asserted that arguments about cultural property are shaped by the public/private divide. Moreover, the discussion of the concepts of culture and property establishes that within the dominant framework, culture is considered a public concept and property is considered a private concept. This distinction produces tension because there is a need for public protection of private property (in order to ensure property rights are respected) and a need for the public recognition of property as part of one's ability to participate in culture. As such, legal arguments about cultural property are defined by the opposition of culture as public and property as private.

From this point of view, the “argument bites” that Alan Audi identifies are a natural result of the tension between the private nature of property and the public nature of culture. The basis of Audi's semiotic examination is the observation that the self-serving, “imperfect,” nature of legal arguments has not been recognized outside of legal academics, when in fact many of the actors in cultural property argument (anthropologists, curators, government actors) are engaged in a substantive argument over “ownership” of cultural property.Footnote ¹²⁰ Audi here is hinting at a bigger problem within cultural property arguments that this article will now expand upon.

As noted at the outset of this article, Audi outlines several categories of argument bites that shape arguments of cultural property. To be clear, these are competence arguments, moral arguments, rights arguments, administrability arguments, and historical arguments.Footnote ¹²¹ However, within each of these categories, he identifies several argument bites that can now be examined in order to uncover the existence of a tension between the public and the private (culture and property) in each argument. Before beginning, it is important to note that this analysis is intended to deepen or add to Audi's prescient analysis, not negate it. Moreover, it will not be possible to examine each argument in detail (although it is argued that this could be done), so samples of each category of arguments will serve to make the point.

For example, in competence arguments, Audi identifies the following argument: “Source nation patrimony laws should not be enforced in domestic (market country courts) because they are against public policy versus source nation patrimony laws establish ownership and we must honor ownership as defined by the state in question out of deference, public policy or comity.”Footnote ¹²² The first “competence” argument, that source nation patrimony laws are against public policy, is the public argument. Culture is inherently public, and private laws of other nations should not interfere with the policy of a state that has determined that this piece of property is part of its culture. The second argument is essentially the opposite. Private property rights are valuable in and of themselves, and rights to property of other states should be protected, regardless if the property has public (cultural) value.

In moral arguments, Audi identifies the argument that “property should be considered the inalienable (nontransferable) property of states versus cultural property is property like any other (feely alienable).”Footnote ¹²³ This argument is a straightforward instance of the public/private divide. The first argument, that property is the alienable property of the state treats cultural property as inherently public (as long as one identifies the public solely with the state, which we often do in practice). The second argument, cultural property is freely alienable, is clearly an instance of privileging cultural property as private property. Similarly, his argument that “buyers should not have to check the provenance of objects” is a statement that there is no public interest in the history of objects of cultural property. A requirement of due diligence would imply that a spurious provenance might in some way override the private property rights. So naturally, this opposite argument appears in the second half of the argument bite that “buyers should be obligated to exercise due diligence to check provenance of objects.”Footnote ¹²⁴ Unsurprisingly, this second argument about due diligence implies a public interest in objects of cultural property.

Along similar lines, in his “rights arguments,” Audi identifies the following argument bite: “States have the right to limit export or trade of cultural property versus people have the right to dispose of cultural property however they wish.”Footnote ¹²⁵ Again, at its root, this is an argument that falls into the public/private divide, with the first argument stressing the public interest in cultural objects, the second object stressing its private property nature. On this point, it is not surprising that in his administrability arguments, he uses the following argument: “Forcing buyers to verify provenance is unduly burdensome versus We do not want to give buyers an incentive to turn a blind eye to wrongdoing.”Footnote ¹²⁶ In this case, the argument bite begins by taking the private part of the argument—we do not want to inhibit private property transactions. Conversely, the implication that private property transactions should not be supported when they cover up wrongdoing implies a public interest in objects of cultural property. Finally, Audi examines historical arguments of cultural property. One example of he gives of these arguments is as follows: “The state or group claiming title to this property has no historical claim to the property because so much time has elapsed versus the state or group claiming the title has a historical claim for a fact specific reason.”Footnote ¹²⁷ While this argument initially seems to be an argument of international versus national approaches to cultural property, it can also be read as an argument for private property rights to be enforced versus public claims of groups or states to property based on arguments of culture.

While Audi does not raise this specifically, it is clear that sitting in the background of arguments about cultural property is the public/private (a.k.a. culture/property) divide. Further, Audi asserts that these argument bites are used “mechanically,”Footnote ¹²⁸ but this article will also suggest that this semiotic structure is used instrumentally—as a rhetorical move by states or actors to advance whichever claim (public or private) that best matches their interest in a given property. This potential for instrumentality becomes particularly evident when one examines the arguments that Audi argues “cluster” together. These arguments cluster together through rhetorical moves that Kennedy calls operations—traditional patterns or ways of making these arguments.Footnote ¹²⁹ By raising one argument in the cluster, one automatically calls attention to the other arguments in the cluster with which one could support or counter the argument.Footnote ¹³⁰ Last, clustering ultimately leads to “nesting “or reproduction of these stock arguments, which ultimately ends up structuring cultural property arguments in patterns.Footnote ¹³¹ However, the discussion of leading approaches to culture and property earlier illustrates that these patterns are not merely structural, they are a product of the theoretical assumptions on which dominant approaches to cultural property law are based. In sum, this analysis adds to Audi's analysis by asserting that the argument bites he uncovers are an instrumental product of the public/private divide.

The discussion of property as private and culture as public was specifically developed in the work of Locke and Kant. This section added to this analysis by demonstrating that Audi's argument bites operate through the tension of the public/private divide. This tension can be diagramed as follows:

But this diagram is not yet complete. As was noted earlier, Arendt argues that the relationship between the private and the public is mediated through the political through the act of judgment as it is through judgment that culture moves from the private sphere into the public sphere. Thus, much as the legal realists asserted earlier in the last century, it would seem that the political acts as a basis for determinations of cases of cultural property. This is evident in the fact that when examined in practice, as in the example of Nazi policy on Jewish cultural property, that opened this article, the divide is used both ways. As the discussion of Arendt earlier indicated, the political is the space in which the public and private meet. Therefore, the political is what acts as the bridge between the concepts of culture and the concepts of property.

As such, a revised schema for understanding arguments of cultural property is as follows:

Therefore, the relationship between culture and property in the cultural property argument is theoretically dichotomous, but how the divide is negotiated or which argument is chosen in a given case is inherently political. It is used instrumentally. Culture is public, but it depends on the protection of private property and property is private but it depends on the public protection of property. Therefore it is clearly the political that mediates or allows for this relationship between the public and the private to develop. Culture and property are opposed concepts, mediated instrumentally through the filter of the political.