Theories of Taking and Legal Spheres of Property.
| Author | Bechet, Pepita |
The space occupied by colonial common law conceptions of property in the cultural heritage sphere, from Canadian colonisation to contemporary debates on cultural appropriation.
Racialised land policies effected colonial violence onto Indigenous populations, given momentum notably by Enlightenment philosophies that defined subject-object relationships as consisting of two categories: the appropriator and the appropriated, consequently creating two separate 'spheres of property'. The dissemination, through these relationships, of colonial conceptions of property, was effected on a global scale. The binary 'spheres of property' created by the western imagination were transposed through legal mechanisms to cultural aspects of the colonial superstructure. Since the 1970s, these systems of knowledge production have manifested themselves in international cultural heritage law. Indeed, a duality is observed between cultural elements that adhere to dominant conceptions of property and those that form part of a global cultural 'public domain' and are not afforded such protection. In fact, both national property laws and international law have reinforced a definitional framework rooted in colonial structures. The current misrecognition of the harm behind western appropriation of Indigenous cultural expression underlines this gap in protection and exemplifies the sustained dominance of colonial systems of meaning within the cultural heritage sphere. 1. INTRODUCTION
The idea of an objective world that can be known with certainty by a subject whose capacity for knowledge is independent of that world is repeatedly undermined. The world must be understood culturally in terms of the significance it is given by social groups who perceive, categorize, and act upon it according to socially conventional structures of meaning and language (1) The international cultural heritage sphere is beset by notions of a universal globalised culture, to be protected by all through equally all-encompassing legal mechanisms. The foundational 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict establishes that "damage to cultural property belonging to any people means damage to the cultural heritage of mankind." (2) The 2003 Convention for the Safeguarding of Intangible Cultural Heritage states the "universal will and common concern to safeguard the intangible cultural heritage of humanity." (3) The 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions states that "cultural diversity forms a common heritage of humanity." (4) Cultural heritage law promotes ideas of a shared global heritage, free of context or power dynamics, a public domain of humanity. However, some cultural expressions form an exception to the universalism of international conventions, granted the ability to become private property, protected by enforceable property laws. Then, other forms of cultural expression are associated with a global public domain and protected only by international soft law norms which are difficult to enforce. Furthermore, the very words used to describe cultural expressions are tinted with understandings of art, culture and property that hierarchise them. For example, some cultural expressions are designated as 'masterpieces', attributed to a named individual of great genius and intellect. Others are considered 'artefacts' attributed to an entire culture, civilisation or period of history instead. Picasso's 'primitive' art is legally recognised as an expression of personality and individual genius and is concretely protected as such by intellectual property laws and moral rights associated with it. The African masks, sculptures and directly copied designs in these paintings are not granted the same legal status and are instead seen as embodying a single culture free from time stamps or singularity. (5)
Definitions are not universal. They are determined by laws and norms that were moulded by factors of political, historical and philosophical dimensions that are systemically overlooked in discussions surrounding cultural expression and its protection. The representation of culture is marked by a history of legal and philosophical theories, which can be traced back to the development of geopolitical power structures, notably by those of a colonial nature that emerged with imperial efforts to appropriate territories and cultures. A most significant role was played by British colonial common law policies in enforcing the system of definitions and norms seen today as universal within the cultural heritage sphere. In light of the above, this paper will refer primarily to cultural 'expression', as this term encompasses a wider system of understanding than the binary terms 'heritage' and 'property.' The terms 'tangible' and 'intangible' also carry with them linguistic limitations, especially as this paper will discuss Indigenous cultural expression, and dividing such expressions into these categories diminishes them significantly.
The conceptions of property and culture described above have manifested themselves over the past decades in the context of claims of cultural appropriation of Indigenous cultural expressions. As a result of this system of meanings, a 'blind spot' has been created as claims of cultural appropriation do not adhere to understandings of subject and object imposed by colonial regimes. The permeation of colonial systems of power through control over cultural meanings stems directly from understandings of property. This paper will uncover the origins of contemporary Anglo-European attitudes when confronted with claims of cultural appropriation, which fall outside both the law and dominant understandings of ownership and culture. It will do so by tracing the legal political order in question to its origins: land. Colonial land policies have shaped the realm of property, and later culture, and have divided it into two spheres. The first is the 'private' sphere of properties, the second is the 'public' domain, that which has historically fallen outside laws of property and their protection. Derogation from this sphere is allowed only if the expression moves into the first sphere and becomes appropriated.
The colonial subject-object relationship has been explored by many authors, both in the context of colonial land policy and of culture. Bhandar's Colonial Lives of Property analyses the essential role of land and property law in the perpetuation of colonial violence through appropriation. (6) MacPherson's theory of possessive individualism lays bare the western need for systemic appropriation as the foundation of Anglo-European capitalism. (7) Clifford coins a typology of the 'Art-Culture System', which illustrates the practice of western 'culture collecting' and its manifestation in museum collections and the fields of anthropology and ethnology. (8) Said contextualises the western subjective attitude towards colonised culture in Orientalism (9) and Culture and Imperialism) (10) Although these, and many other theorisations of this subject, individually address the issues at hand, few have traced the direct link from land colonisation to contemporary conceptions of property and ownership within the cultural heritage sphere. This paper will recast these theories to situate contemporary western legal-political attitudes towards the practice of cultural appropriation of Indigenous cultural expression, doing so with regards to common law culture in Canada as a former British colony.
This paper will establish theories of property as justifications for colonial violence, dispossession and appropriation, and the role of Lockean thought in forming the common law of property. It will be argued that Locke's labour theory of property posits two separate spheres of property: that which is appropriated, representing western ideas of the 'civilised' world, opposing his concept of 'wasteland', that which has yet to be appropriated. The application of these theories through common law land law in colonial Canada will be analysed, as will be the role of these philosophies of property in shaping and defining identities. Then, the bridge from land to culture will be drawn by showing how cultural property laws stem directly from conceptions of land and spheres of property defined by the first section of this paper. This will be done by looking specifically at policies of cultural oppression of Indigenous peoples in Canada and Canadian intellectual property regimes with regard to cultural expression. These elements will be developed outside the legal sphere by examining historical western attitudes towards colonised cultural expression, showing how colonial theories of property have directly translated into the realm of cultural heritage. Finally, the above will serve to situate the current discussion regarding cultural appropriation of Indigenous cultural expression. This is analysed through the two 'spheres of property' set out in the first section, in looking at individual relationships to appropriation, as well as the commonly used 'universalist', or 'public domain' argument promoted both by individuals and international legal mechanisms.
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PHILOSOPHICAL THEORIES OF LAND OWNERSHIP AS JUSTIFICATIONS OF COLONIALISM
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Locke, Land and Colonial Concepts of Property
Underlying social space are territories, land, geographical domains, the actual geographical underpinnings of the imperial, and also the cultural contest. To think about distant places, to colonize them, to populate or depopulate them: all of this occurs on, about, or because of land.
Edward Said, Culture and Imperialism, 1993. (11)
Colonialism is embedded in common law. The Conquest of England by William I was executed on the basis that absolute ownership was acquired as sovereignty was asserted: "in practice and in law, no distinction was made between conquering and acquiring absolute ownership." (12)...
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