Category: Culture and Heritage

Astrud Gilberto, The Girl from Ipanema, and the inequity of intellectual property – where law and conscience clash

9th June 2023

A former President of the United States has been indicted on federal charges, and I wondered if it even warranted a blogpost.

So I wrote about The Girl from Ipanema and about comics instead.

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In March 1963, a singer earned the American musicians’ syndicate rate for one session of work: $120.

She was no doubt one of hundreds of session singers that year, used for hundreds, if not thousands, of tracks, most of which are now pretty much forgotten. Just another singer doing a session, for just another track: nothing special.

But.

It was special. The singer was Astrud Gilberto, who has recently died, and the track was The Girl from Ipanema.

The song, we are told, is now the most recorded song after the Beatles’ Yesterday. Music, of course, can be a matter of taste, and The Girl from Ipanema suffers from perhaps being too well-known and over-used. Yet even you cannot deny that the song, in and of itself, has merit.

But what (for many) makes the 1963 track sublime, however, is the particular contribution of Astrud Gilberto.

And it was certainly the contribution of Astrud Gilberto that made the track commercially very successful.

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The story of the making of The Girl from Ipanema is notorious. It was not just that Astrud Gilberto was paid just a session singer’s fee. The others involved in the making of the track, we are told, actively made sure that she did not get any further returns from her contribution:

If this story is accurate then the only sensible response is that something is not right.

But what exactly is it that is not right?

For the hundreds of session singers and other musicians who contributed to tracks in 1963, the rate of $120 would be regarded as standard.

Why should the rule be different just because, in one case, an exceptional and commercially valuable product happened to have been created?

And if you want to make it that every session contract has a proviso where the singer or musician gets a valuable reward on the off-chance of unexpected commercial success, then it may well be that there would have been less work or the payment would be decreased, so as to balance off the risk.

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A similar position situation is with the writers and artists who created certain superheroes and other characters, on a work-for-hire basis. Some of these superheroes and other characters are now some of the most valuable products in the entertainment industry, worth billions of dollars.

But for every famous – and valuable – superhero there are hundreds, if not thousands, of forgettable (and sometimes regrettable) characters:

And in the “universes” of the “Big Two” comic publishers there are casts of hundreds:

Should contractors that created any of these characters that did not become popular or valuable have had contracts which made provisos for unexpected success?

Or should the benefit of such success go to the publishers and investors who created the means of production, marketing and distribution of the work done by the contractors? And also bore the risk of commercial failure.

Not every writer and artist creates a Batman or a Superman.

But.

Again, as with the story of Astrud Gilberto, there is something not right.

But, again, it is less clear what can be done about it.

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Selling records or comics to a mass audience will mean, from time to time, there will be items which are massive successes.

These successes are not easy to predict, and so there is risk of failure.

But when there is a massive success, then there is, in effect, a windfall for those who hold the intellectual property rights.

But when those intellectual property rights are not owned by the creators of the work then those creators will receive none of the profits.

Perhaps some of those creators will not care, and they would prefer to have the steady income of a worker-for-hire. That is their choice.

But from time-to-time there are such profits that make it, well, unconscionable for the rewards not to be shared with the actual creators of the work.

In England and Wales, long before the mass markets of the last two centuries, the harshness of the application of certain legal rules – especially to do with property – was mitigated by the development of “equity”.

Equity provided a further set of rules which prevented certain legal actors – especially property owners – from acting unconscionably.

The court would intervene and attach an obligation to someone with legal rights to oblige them to do what their conscience would (or should) be telling them to do anyway.

This is the world of trusts and injunctions and accounts of profits: all devices which limited what those with certain legal rights could do with those rights if they were doing something unconscionable.

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Of course, equity is more commonly applied to what lawyers call “real property” (as in “real estate”, ie land) and personal property (possessions) and material wealth than intellectual property.

And, in England and Wales, equitable remedies can and are used in intellectual property cases, and presumably this is also the case in the United States.

(I am not an American lawyer.)

But equity is not just about technical rules: it is based ultimately on a sense of a thing being unconscionable.

Yes, you may have those strict legal rights – and those cannot be denied – but the court will step in a limit what you can do with those rights.

And it would seem to me that the gross unfairness of creators of exceptional and valuable works not getting any share of the profits from those works is unconscionable.

How we covert this general sense of inequity into practical remedies that do not undermine or disturb otherwise useful contractual arrangements is a far more difficult question.

Again, many creative contractors are quite happy to assign their rights in return for an income stream, with no direct exposure to the downside of their works not being successfully exploited by others.

But what happened to Astrud Gilberto, and to Bill Finger (Batman), and to Jerry Siegel and Joe Shuster (Superman) was unconscionable.

And the classic “freedom of contract” and “property rights” arguments do not wash – just as those arguments did not wash when equity was developed in the first place.

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Disclosure: I read far too many comics and I listen to a lot of jazz.

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Private nuisance and Tate Modern

13th February 2023

Over at Prospect I have an article about the Tate Modern privacy case.

Click here (even if you do not read it).

As the article shows, I am no fan of either the new Tate Modern building or the blocks of flats facing it.  I have always thought it is better to live inside an ugly building looking at a nice building, rather than living in a nice building looking at an ugly building, and the sad predicament in the Tate Modern case is that you have two ugly buildings facing each other.

And like many people, I instinctively sided with the art gallery, as at least the public gallery was a public good, and that offset the private inconveniences of the wealthy leaseholders.

But.

As I read the case reports carefully, and the majority opinion of the Supreme Court in particular, I found it hard to legally fault the final decision:

– High Court decision

– Court of Appeal decision

– Supreme Court decision

If there is to be a law of private nuisance then this seems to be the correct application of that law.

My lingering reaction is to wish that only privacy rights were as easy to enforce in non-property cases.

Anyway, you can read the article here – and please comment below.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

The law and policy of the return of the Parthenon marbles

4th January 2022

Photo credit

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The Parthenon marbles situated in the British Museum are back in the news.

From a legal perspective the following five points can be made – and have been made previously on this blog – here and here.

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First, there is no sound basis for the often asserted proposition that the marbles were lawfully acquired by Elgin before being given to the museum.

Any close look at the circumstances of the acquisition raises a series of issues.

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Second, if they were not lawfully acquired by Elgin then the marbles were not his to give to anyone – “title” in the property could not have passed at the time to the British Museum.

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Third, if the marbles were not lawfully acquired by the British Museum then the museum’s usual defence – that it is a serious and conscientious custodian of the world’s treasures for the public benefit – while admirable, is irrelevant to whether the marbles were lawfully acquired.

The later legal protections for possessions in its collection for the public benefit do not make good any deficiency in how the marbles were acquired.

Of course, it is far too late for this to be a practical legal issue – statutes of limitation and so on have long extinguished any legal claim against the museum for recovery of the marbles.

The museum will undoubtedly have now acquired title just by sheer passage of time: a sort of posh version of squatters’ rights.

Yet, just because there can now be no legal claim against the museum does not mean the marbles were lawfully acquired in the first place.

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But.

Where the British Museum have a stronger case is on the fourth and fifth points.

The fourth point is that the current legislation does make it difficult-to-impossible for the museum to dispose (to use the legal word) of the marbles as it wishes, either by returning them to Greece or otherwise.

An elaborate legal basis could, perhaps be provided, but – on balance – one suspects an English court would rule such a disposal as unlawful.

This means this is not a matter solely for the trustees of the museum (as I explain here).

For the marbles to be returned properly to Greece would require a change in primary legislation, which in turn means it has to have government support (or at least no government opposition).

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And this brings us to the fifth point: the future of the marbles is in the realm of politics, and not law.

It is a policy decision, where any legal changes would flow from a decision by ministers.

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The proposed work-arounds, of the British Museum loaning the marbles back to Greece, would fit within the current legislation.

Just as many things in the collection can be lent to other museums in other countries.

One can understand why the Greek government will not find such offers acceptable, despite the current hopeful leaks to the British political press.

Perhaps the Greeks will insist on there being a transfer of property – which would make it a legal issue.

But that is a legal issue which can only be practically resolved by politicians.

And as such it is a perfect example of a subject where law and policy mix and combine.

So perfect an example, in fact, that it should be on display in, well, a museum.

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The secularisation of the United Kingdom state

1st December 2022

If you pick up a constitutional law text of a certain age you may find passages, perhaps even a chapter, setting out the relationship between the government of the United Kingdom and the Church of England.

You may even get passages on the Church of Scotland and the now disestablished Churches of Wales and of Ireland.

Next year at the coronation, there will be a great deal of religious content to the ceremony – and even when Charles III acceded earlier this year, one of the first required acts was to swear an oath in respect of the Church of Scotland.

Meanwhile bishops of the Church of England sit in the House of Lords and in our courts the first thing a judge and a jury will find out about you as a witness is whether you believe in a god or not.

Just over one hundred years ago, the state was even more fused with the church and, before 1828-32, some historians even speak of a “confessional state” which, at least in England, structurally privileged the Church of England.

The established churches were (and to a limited still extent still are) part of the constitution of the United Kingdom – if that constitution is understood descriptively as the answer to the question: how is the United Kingdom constituted.

As a non-militant atheist, I would welcome a state which was suddenly and entirely secularised, that is if it could be done painlessly in an instant of a blink.

But as someone interested in practical constitutional reform, I am less enthusiastic about disestablishment, given the time and trouble it would take.

Yes, get rid of the bishops from their automatic seats in the legislature, and also get rid of the presumption in favour of religious oaths in courts.

But that is about it: the rest can join the long list of constitutional reforms it would be nice to have, but not perhaps yet.

This is, ironically, an Anglican form of atheism: a via media between being religious and militant atheism.

And given the relationship between the Crown and the Church of England in particular under the new King – the defender of faith, without any definite article – there is no likelihood of any disestablishment in the near future.

So the current compromise will continue for a while.

That is: four nations; two established churches; and one of those established churches with seats in parliament.

And it is: a semi-confessional state at a time where there are many religious faiths in society, as well as an increasing amount of us free from any religious faith.

If we were starting from scratch, we would probably not give the Church of England such an elevated position within our polity – just as we would not now build that nice parish church around the corner.

But given that it is there, we cannot be bothered to get rid of it entirely.

And many of the parish churches are quaint to look at, and nice to visit about this time of year.

Let us put disestablishment off to another year.

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What the Ministry of Justice should do with Reading Gaol

30th November 2022

Bill Hicks did this great routine about Jesus of Nazareth coming back to see crosses everywhere:

“Lots of Christians wear crosses around their necks. You think when Jesus comes back he’s gonna want to see a fucking cross, man?

“”Ow.” Might be why he hasn’t shown up yet.

“”Man, they’re still wearing crosses. Fuck it, I’m not goin’ back, Dad. No, they totally missed the point. When they start wearing fishes, I might show up again, but… let me bury fossils with you, Dad. Fuck ’em, let’s fuck with ’em! Hand me that brontosaurus head, Dad.””

Hicks had a point.

The crucifix was a torture device, which was used to ensure the victim had an agonising death.

It has taken about two thousand years of cultural familiarisation for it to be a comforting symbol, which some even place outside schools and hospitals.

“You know, kinda like going up to Jackie Onassis with a rifle pendant on, you know. “Thinkin’ of John, Jackie. We love him. Just tryin’ to keep that memory alive, baby.””

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Perhaps the ghost of Oscar Wilde would have the similar reaction to the calls for the closed Reading Gaol to be now turned into an arts centre:

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It was, after all, where Wilde spent his time incarcerated, serving a sentence of two years’ hard labour, for gross indecency – the crime being consensual homosexual intercourse.

The campaign has the support of the local member of parliament:

The Ministry of Justice, on the other hand, seems to have done nothing since 2014 with this prime real estate in that tent of urbanisation which geographers call the largest town in England.

BBC News tells us that the Ministry of Justice “has previously rejected the plan and said it wanted to “seek [the] best value for taxpayers”.”

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One suspects Wilde would have been generous in his support with this campaign to turn his gaol into an arts venue.

Indeed, that we even associate the prison with Wilde is down to his own writing.

He, of course, immortalised the prison in the title of one of his greatest poems, about the execution and burial of an inmate when he was there:

“In Reading gaol by Reading town
There is a pit of shame,
And in it lies a wretched man
Eaten by teeth of flame,
In a burning winding-sheet he lies,
And his grave has got no name.”
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And in his autobiographical De Profundis, Wilde wrote:

“People point to Reading Gaol and say, ‘That is where the artistic life leads a man.’  Well, it might lead to worse places.”

He then mentions some of those worse places:

“A man whose desire is to be something separate from himself, to be a member of Parliament, or a successful grocer, or a prominent solicitor, or a judge, or something equally tedious, invariably succeeds in being what he wants to be.  That is his punishment.”

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One gets the impression that Wilde would actually quite approve of Reading Gaol being turned into an arts centre, especially with the grudging consent of the government.

(It would be a fitting counterpart to the bank note memorial for that other great figure prosecuted under and broken by the very same vile “gross indecency” offence, Alan Turing.)

Wilde would probably not even rub it in for those working at the Ministry of Justice, for he would regard their mundane civil service jobs as punishment enough.

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Reading Gaol should become a standing reminder of the wickedness of which our criminal law can be capable – against Wilde, Turing, and so many others.

And this would be as an arts venue, and not as a block of flats.

This would also certainly be “better value for taxpayers” than the prison standing idle for another eight years, located next to the touristy plush grounds of the ruined abbey in Reading.

The Ministry of Justice may well know the price that land could command for development, but they do not know that property’s value.

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“Nowadays people know the price of everything and the value of nothing.”

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The end of an era? The death of Elizabeth II and the problem of periodisation

19th September 2022

True Historians, of course, do not like periodisation.

The very notion that there can be start-dates and end-dates to periods of study are, for True Historians, anathema, heretical, and blasphemous.

Or worse.

Even dates like 1066, or 1914, or 1945 will, for a True Historian, not be anything other than something which draws us away from understanding continuities.

There is no start-date and end-date which does not mask, for a True Historian, lots of things which carried on as before, and which does not interrupt some existing trend.

But.

For rest of us mere mortals, who will never become True Historians, periodisation is a useful device – as long as not too much reliance is placed on it.

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For a good part of English history, periodisation was simple: it followed the reigns of the monarchs.

Dates likes 1485 and 1603 and 1714 were good dates to start and end a course of study or the content of a text book.

But after 1714 the dates began to slip, and the periods did not match the reigns of monarchs.

Dates like 1815 or 1865 began to be the bookends of courses and textbooks, and for the twentieth century (at least for the United Kingdom) the dates of the world wars were convenient marker dates.

But what of the post-war period?

If 1945 is seen as the start of a period of British history, when should that period end?

1990, with the end of the Cold War and the fall of Thatcher?

1997, with the coming of New Labour?

2001, with 9/11?

2010, with the going of New Labour?

2016, with the Brexit referendum?

2020, with the actual UK departure from the European Union?

Or is there a case to be made for 2022, a year where, in a single week, we had a change of Prime Minister and a change of monarch?

And a year in which Putin and Russia so obviously overreached themselves in Ukraine.

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From a constitutionalist perspective, the start-dates and end-dates are perhaps different.

For a constitutionalist, the key dates may be: 1660 (the restoration); 1688-89 (the revolution); 1707 (the union between England and Scotland); 1714 (the succession of George I); 1745-46 (with the final failure of the disputed succession); 1801 (the union of Great Britain and Ireland); 1828-32 (the collapse of the “ancien regime” with Roman Catholic emancipation and the Great Reform Act); 1867 (the extension of the vote to some working men); 1911 (the defeat of the House of Lords with the Parliament Act); 1918 (votes for women); 1922 (the Irish Free State, effectively ending the United Kingdom of Great Britain and Ireland); and 1936 (the forced abdication).

Each one of these dates, which signal some re-configuration of our constitutional arrangements, would be a good start-date or end-date for a work of modern constitutional history.

(There are other possible dates too – but that paragraph was already long enough.)

But what more recent date would be a marker for our constitutional history?

Some would have said 1973, with our entry into the European Communities; or 2020, with our departure from the Communities’ successor, the European Union.

Others would say the various legislative changes of the first Tony Blair administration, with devolution and the Human Rights Act.

And a strong case can be made for the Good Friday Agreement.

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My own view, for what it is worth, is that – from a constitutionalist perspective – the marker date is yet to come.

The next marker date in our constitutional history will be when there is a border poll in Northern Ireland, especially if there is a vote for unification.

(Or it may be a pro-independence referendum vote in Scotland, if that is sooner.)

For that will bring to an end the constitutional history of the entity which came into its current form in 1922, with the Irish Free State.

And a good historical periodisation is always around a century-long.

(Shh, don’t tell True Historians.)

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If so, then today’s funeral provided a fascinating and highly significant piece of evidence:

This tweet may well be one of the most important things ever tweeted in respect of our constitutional arrangements.

For the Sinn Féin First Minister (Designate) of Northern Ireland to write in such terms means that the sensibilities and concerns of the Unionist community are not only being acknowledged but respected.

And the more the Unionists are made to feel more comfortable, the more likely there will be a united Ireland.

That tweet was huge.

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As this blog has averred before, the great achievement of Elizabeth II was to take a throne which seemed precarious, and to hand it on with more security to her successor.

And so for her monument, you could look around today at the state funeral.

Of course, in a way, with the death of Elizabeth II it can be said in general terms that the twentieth century came to an end.

She was our last major link with a good part of the twentieth century: somebody born the same year as Marilyn Monroe who died in the era of TikTok:

Somebody who served in uniform in World War II, and whose first Prime Minister – Winston Churchill – was born in 1874, lived on so that her last Prime Minister was born a century later, in 1975.

When she died, Elizabeth provided the sort of continuity at which any True Historian will clap and cheer.

She ensured that the end of her reign was not to be a start-date or end-date.

And so our start-dates or end-dates, at least from a constitutionalist perspective, will not include 2022, and so we will have to be different dates instead.

One suspects Elizabeth II would be happy with that.

 

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The Rule of Law and the Colston Four – and why a jury acquittal shows a legal system working and not being undermined

 

The Colston Four defendants have been acquitted by a jury.

Some are contending, like this former cabinet minister, that this acquittal ‘undermines the rule of law’.

That contention is incorrect.

An acquittal is as much an aspect of the rule of law as a conviction.

Criminal courts can acquit as well as convict – both can be the outcomes of the application of due process in a particular case.

The Colston Four were acquitted by a jury – and the defendants did not deny the essential facts.

It can be open to a jury to do this – and this informative Guardian article sets out many other examples.

A jury returning a verdict that they are entitled to return is an example of the law in action, and not of a legal process undermined.

This is not to say that juries are perfect – indeed, many of the greatest miscarriages of justice have come from jury verdicts.

Juries do not always get things right.

But the constitutional importance of juries is not so much for the decisions they make, but for the decisions they take away from others.

The State may arrest, charge and prosecute a person – but they cannot convict and punish a defendant pleading ‘not guilty’ to a serious offence without a jury trial.

The implication of the former cabinet minister’s view quoted above is that it should not be open to a jury to acquit a person prosecuted for a serious offence – but only to convict and punish.

But that is not the ‘rule of law’ – it is something darker and nastier instead.

Others are fretting that the verdict creates a ‘precedent’.

It, of course, does not create any legal precedent – no jury can bind another jury, and each jury should look at the case before them on its own evidence.

Nor does it create any practical precedent – or, at least, not one which has any more force than the many previous examples set out in the Guardian article.

The real upset is that a court heard the evidence and acquitted the defendants.

This is what juries sometimes do – and they can do this because they are outwith the control of the prosecuting State.

One half-expects that this weekend’s press will see ‘government sources’ urging ‘a crackdown’ on ‘perverse’ acquittals – with a proposal for ministers to have a ‘fast track’ on imposing convictions.

And this is not to put an idea into the heads of government ministers – the idea is no doubt already there.

One irony – if that is the correct word – is that this very government sought to use primary legislation to enable ministers to break the law.

That proposal – over which the Advocate General and the Treasury Solicitor resigned (and the recently knighted former Lord Chancellor did not) – did more to undermine the rule of law than any verdict of a Bristol jury.

And the current hyper-partisanship of modern politics means that if, say, a group of fox hunters were acquitted by some shire county jury, the same people who are jeering the Bristol jury would be cheering the shire county jury instead.

But juries are juries – they make mistakes, but they are independent of State prosecutors.

And the noise of government supporters unhappy with a jury decision is the sweet sound of a working constitution.

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Why it was incorrect for Downing Street to say the return of the Elgin Marbles is a only a matter for the British Museum

17th November 2021

Yesterday the prime minister of the United Kingdom met the prime minister of Greece and, according to a Downing Street media statement, the following happened:

“Finally, Prime Minister Mitsotakis raised the issue of the Parthenon Sculptures.

“The Prime Minister said that he understood the strength of feeling of the Greek people on this issue, but reiterated the UK’s longstanding position that this matter is one for the trustees of the British Museum.

“The leaders agreed that this issue in no way affects the strength of the UK-Greece partnership.”

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The second quoted sentence is striking for two reasons.

First, that is actually not “the UK’s longstanding position”.

According to the very same prime minister of the United Kingdom earlier this year, there was another “firm, longstanding position” – that the government itself had a view:

“The UK government has a firm, longstanding position on the sculptures, which is that they were legally acquired by Lord Elgin under the appropriate laws of the time and have been legally owned by the British Museum’s trustees since their acquisition.”

(Quoted here.)

Perhaps the real “firm, longstanding position” is that the prime minister and the Downing street press department make it up as they go along.

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But the second thing about yesterday’s statement is even more striking.

That Downing Street thinks this is a matter for the British Museum.

Yet the British Museum has strict legal limits to what it can do to dispose of any of its collection.

(Yes, the legal term here is ‘to dispose’.)

In essence: as the law stands, the trustees cannot simply decide to send the marbles back to Greece.

It would need substantial parliamentary, and thereby governmental, intervention and approval.

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A couple of days ago on this blog, I set out why there significant doubts that these artefacts entered the British Museum collection lawfully in the first place.

Here the stock line-to-take of the British Museum is that “Lord Elgin’s activities were thoroughly investigated by a Parliamentary Select Committee in 1816 and found to be entirely legal” is not true.

This is not true.

There was no thorough investigation – and a parliamentary committee cannot determine or verify title anyway.

And no original legal instrument conveying the ownership of the marbles (or any other permission) to Elgin has ever been produced (and may never have existed); the only documents that were produced at the time of the acquisition were ‘translations’ that appear to scholars to be implausible and possibly fraudulent; and the parliamentary committee that approved the acquisition did not see any original documentation.

Put simply: there was – and is – no original legal instrument that said Elgin owned the marbles and/or that he took them away lawfully.

And if Elgin never owned them, then he had no right of ownership to pass on to anyone else, including the British Museum.

However: after two hundred or so years, it is far too late for anyone to legally challenge the acquisition in court – by reason of limitation legislation and otherwise.

Even if not lawfully acquired, the marbles are now part of the collection.

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Now to what the trustees of the British Museum can and cannot decide.

The British Museum Act 1963 (and its predecessor legislation) provides that objects can be disposed of in certain defined situations:

The marbles are not duplicates; they are from (long) before 1850 and not made out of printed matter; and are not useless because of deterioration.

Even clause 5(1)(c) does not help – for there is no doubt as to the merit of the objects and are of interest to students.

Section 5 of the British Museum Act 1963 means that the museum cannot simply give them to the Greek government.

The only way round section 5 is by new primary legislation – and this has been done (at least) twice for other artefacts.

Section 47 of the Human Tissues Act 2004 provides that human remains can be repatriated.

And the Holocaust (Return of Cultural Objects) Act 2009 provides a power for museums and art galleries to return certain cultural objects on grounds relating to events occurring during the Nazi era.

(The informative British Museum policy on disposing of objects is here.)

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So unless there is new specific legislation such as the 2004 and 2009 Acts, the trustees of the British Museum have no legal power or right to dispose of the Elgin Marbles in any way, other than in accordance with section 5 of the 1963 Act.

The trustees may form views and make recommendations – and a statement saying that the marbles should go to be shown in Athens could certainly be made.

But they cannot do this themselves.

The return of the marbles is therefore not just a matter for the trustees of the British Museum.

Downing Street got the law wrong.

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If there was a decision by the trustees of the British Museum to return the marbles to Greece, then it would be for the parliament to enact another new exception to section 5.

And parliament could not do that in the face of government opposition – it would need government support.

And so it is a matter for parliament and government.

Downing Street not only got the law wrong but also the overall position.

The government itself would need to decide.

The matter is not for the trustees, it is for the prime minister too.

 

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What if the Elgin Marbles were not legally acquired by the British Museum in the first place?

15th November 2021

No sensible person can deny that the exhibition of the Elgin Marbles at the British Museum is awesome.

To walk into the relevant room at the museum is breathtaking.

But.

The splendid display by itself does not justify the British Museum holding on to them – there needs to be a more compelling reason for retention than how the artefacts are being presented.

For instance: were the marbles lawfully acquired by the museum?

The British Museum states that the acquisition of the marbles was sound:

“Lord Elgin’s activities were thoroughly investigated by a Parliamentary Select Committee in 1816 and found to be entirely legal.”

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Beware of adverbs: and you will see the word ‘thoroughly’ is doing a lot of work in that sentence.

But putting that word aside, you would expect the British museum to realise that title in property is not (and cannot) be determined by a parliamentary select committee.

A report by a parliamentary select committee is irrelevant as to who owned the marbles and whether the acquisition was sound.

A parliamentary select committee cannot determine or approve ‘title’ – the legal right of ownership in a property.

One suspects the British Museum knows this, hence the deft insertion of the word ‘thoroughly’.

Perhaps the British Museum should have said is was a superly-duperly-thorough investigation, so as to clinch the point.

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But.

That there was even a sound legal transaction to begin with is disputed by many, including the American academic lawyer David Rudenstine.

Rudenstine avers in this fascinating paper that the parliamentary committee did not see any original legal documentation – but instead accepted an English translation of an Italian translation of the Ottoman original:

If Rudenstine is correct then the assertion by the British Museum that there was a ‘thorough’ investigation by the parliamentary committee cannot be correct.

And this is apart from the legal fact that a parliamentary committee cannot determine or verify title anyway.

In essence: there was – and is – no original documentary proof that title in the marbles ever passed to Elgin to begin with.

(There is also no record of the transaction in the Ottoman archives.)

And Rudenstine shows that the (supposed) Italian translation of the Ottoman instrument (and thereby the English translation) is not credible and is flawed.

Rudenstine goes so far to say that the Italian translation could only have been a fraudulent instrument.

This is what can happen when there is translation, upon translation, upon translation.

There can be unreliable narratives.

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‘On sober reflection, I find few reasons for publishing my Italian version of an obscure, neo-Gothic French version of a seventeenth-century Latin edition of a work written in Latin by a German monk toward the end of the fourteenth century.’

Umberto Eco, The Name of the Rose

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A previous post on this blog set out the legal principle known in its Latin form nemo dat quod non habet.

In plain language: a person cannot have a greater property right – title – in a thing than the person who provides them with that thing.

Garbage in, garbage out – legally speaking.

And if you do not have title to a thing, it does not matter how well you subsequently treat that thing, you still do not own it.

It is not yours.

It never was.

If the Elgin Marbles never did belong to Elgin this means title could never have passed to the British Museum.

And if the British Museum never acquired title then a great deal of the sophisticated and elegant defence of the British Museum must fall away.

The facts that the marbles have been looked after and are on show for the benefit of the world are wonderful and welcome – but they are also legally irrelevant.

(If the position were different, and there was a reliable copy of the conveyance instrument for the marbles, then it would be this blogpost that would fall away instead – and I emphasise this post is not about the general merits of repatriation of the marbles but the legalistic argument being used to justify retention.)

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It is reported that Greece is making another request for return of the marbles.

And it looks like the prime minister is resorting to the legalistic argument as a defence:

Well.

Let’s see if the United Kingdom prime minister has an answer if the Greek prime minister asks for proof that the marbles were ‘legally acquired by Lord Elgin under the appropriate laws of the time’.

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“The British constitution is whatever government can(not) get away with”

18th August 2021

There are only two particular things I knew about Austin Mitchell, the former member of parliament whose death was announced today.

The first was that, before he became a politician, he was a capable historian and the author of “The Whigs in opposition, 1815–1830”.

The second was his phrase that (I think) I can remember reading back in the 1980s but which I can only track online to 1997:

‘The British constitution is whatever government can get away with.’ 

This phrase has stuck with me as a politics student in the late 1980s, as a history student in the 1990s, and as a lawyer and constitutional commentator thereafter.

It is a perfect way of summing up a descriptive (as opposed to prescriptive) approach to constitutional matters.

(Anyone can witter on about what a constitution ‘should’ do, and constitution-mongering is easy – the difficulty is often working out exactly what in practice a constitution is – and is not – doing and why/how.)

And the phrase correctly focuses on the most serious predicament in the constitution of the United Kingdom: the lack of real checks and balances on the executive.

I personally prefer to render Mitchell’s dictum slightly differently, though the ultimate meaning is the same (emphasis added):

‘The British constitution is whatever government cannot get away with.’ 

In other words: if one was to plot all the instances where the executive cannot just do as it wishes then you would have a fair descriptive portrayal of the constitution.

To an extent that depiction would correspond with the text books on government and law – but also to an extent that depiction would not be in many academic books or papers.

As different as a picture of an elephant drawn by second-hand description against a high-resolution photograph.

So I know little about Mitchell as a person or as a politician – but that one phrase of his set off over thirty years of practical constitutional thinking and writing.

Or at least the constitutional commentary that I can get away with.

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