Category: Historiography

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 state seriously thinks an ‘official’ history of the Troubles will change nationalist minds

14th November 2021

Someone must think this is a very clever idea.

In today’s Sunday Telegraph:

If only the United Kingdom government had thought of this before.

An ‘official’ history of Ireland to counter the narratives of the nationalists.

The Victorians could have waved volumes of an official history to silence the complaints of Daniel O’Connell and Charles Parnell.

The 1916 uprising would have been avoided if instead of issuing a proclamation at the Dublin post office, the protestors had gone inside and picked up parcels containing official British histories of Ireland instead.

But: seriously?

What a misconceived notion.

In respect of the troubles, this official history will somehow have explain away how the civil rights of minorities were systemically infringed up to and including the 1970s (and beyond).

And about how torture and inhumane treatment was routinely used by the British state.

It would also need, for example, to explain things like the complicity of the British state in the murder of the Irish lawyer Pat Finucane (on which the British government is still refusing to have a full inquiry)

Uncomfortable things – things the British state is still seeking to avoid getting on the historical record.

The last thing the British state would really want is an objective, evidence-based approach of its conduct during the troubles.

The history of the troubles does need to be recorded – but it will not be done by a British official history.

And on this same basis the history of the terrorists also needs to be recorded – and this will need to be done by those who are not partisans.

No participant in the troubles is going to provide a history that the other participants will accept over and above their own versions.

There is a great deal which the various participants will not want to admit on the record themselves (or even to themselves).

And all this is quite apart from enduring issues of legal liability.

One day, perhaps, there may be a history of the troubles that the various communities and the British and Irish states will accept as a single comprehensive version.

Perhaps.

Perhaps it will be when there is a single comprehensive history of the rest of Britain’s relations with the island of Ireland that is generally accepted.

But that history is still contested – hundreds (if not a thousand) years later.

The better response by the British state to the existence of alternative versions to its own is not to shout over them and to impose an official history but to, well, listen.

To listen to the versions of history that the British state finds so uncomfortable.

And if the British state did listen then…

…that would be something for the history books.

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The age of the three referendums – why we are only partly through this significant constitutional moment

15th May 2021

One of the more refreshing shifts in historiography was when historians turned from ‘the English civil war’ to ‘the war of the three kingdoms’ – acknowledging that the conflicts of the mid-1600s were more to do with the politics and conflicts of Scotland and Ireland than a purely English affair.

Future historians looking at the age of Brexit may similarly have to see how Scotland and Ireland were causes of immense political instability and potential constitutional crisis.

For the referendum we all know about – and the one we are all preoccupied about – may for historians seem to be just the first of three.

And those historians may group together the 2016 Brexit referendum with a yet-to-come Scottish independence referendum and border poll in (Northern) Ireland.

It will be the fall-out of the three referendums taken together which will be the end and beginning of a chapter in our constitutional and political history.

This is not to predict the outcome of those referendums – or the outcome of what would then (if anything) that follows those referendums.

In this time of unwelcome and unexpected political surprises, few can be confident in forecasting what things will happen next.

But the 2016 referendum may be seen as just one move of a gear in something more complex – the recasting of the state of the United Kingdom.

The one thing which may be certain is that the (perceived) mandate of any referendum result now has a greater charge than before.

Brexit was carried through at speed and with no real planning in the face of opposition (and of reality) because of the purchase of a referendum result.

It is therefore difficult to deny, if either or both of the upcoming referendums (if they happen) vote for change, that such a change can be opposed on the basis of a higher priority for the will of parliament.

We may find that one cannot pick and choose the ‘will of the people’ – if there are to be referendums, then the expectation is now (more than before) that the results will be implemented.

But we also may find that the experience of Brexit will turn people against voting for further drastic changes – that the next referendums are reactionary rather than radical in their nature.

Of course: there will be those historians – like there are for the civil wars – who will say, with hindsight, that the outcome was inevitable all along.

Those of us here at the time, however, can only seen uncertainty and multiple contingencies.

 

History vs law – the two disciplines compared and contrasted

11th April 2021

On a superficial level, the disciplines of law and history have a good deal in common.

Both subjects deal primarily with words.

The stuff of history (as opposed to prehistory or archaeology) tends to be written documents – though supplemented with the evidence of other materials.

And the stuff of law also tends to be written instruments and, in litigation, the words of witnesses and lawyers – though supplemented by other forms of evidence.

Neither of these two observations are universal, of course – one can have historical accounts and evidence without any words, and one can have law and litigation without words.

But in the main: words are the thing.

Both subjects also deal with evidence.

For history, this is (ahem) self-evident – and for law, the application of laws and legal instruments will always come down to a given fact situation: did [x] breach the contract or did [y] damage that artefact.

And both subjects tend to deal with the construction of narratives derived from assessments of evidence.

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But there lies the crucial difference.

While in putting together a historical account, there are no rules of evidence – if a piece of evidence is relevant then it can and should be used.

In contrast, in law and litigation there are rules of evidence – some evidence may be highly relevant, but it cannot be put before a court because it is inadmissible.

And the questions of the evidence which are asked by a historian will be different to that of a lawyer.

A historian may well ask ‘what happened’ – but a judge may ask only for that evidence that is relevant to the elements of the criminal offence or civil wrong that is being tried.

In concrete terms, a judge will not be interested in all sorts of circumstantial and contextual information about, say, a theft or a trespass but may look only at that evidence which goes to whether there was permission by a property owner.

And this is why legal records such as judgments or transcripts from trials are sometimes unexpectedly complicated sources to interrogate and analyse for a historian.

The questions being asked or the problems being solved by a judge or a lawyer are not that of someone committed to free historical inquiry – but instead have an immediate purpose in respect of the elements of the case that need to be proved or otherwise.

Judgments in particular can be misleading to the student of history – especially those that are framed as showing that, of course, one party had a more compelling case than the other.

The truth is that if a case was indeed that one-sided then the claim or action would normally not have needed to go to trial.

But a good historian knows that every document – including a legal document – has its own context, and that it was created (and survived) for a reason – and that reason is usually not for the personal benefit of a historian.

And in that respect, law and history are both good as ways of promoting critical engagement with words and evidence. 

It is just that they are not the same, despite their superficial similarity.

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The reason for these reflections is my ongoing attempts to understand and explain practical law and policy by means of critical engagement of written sources.

For example: a good deal of the politics of the last five years in the United Kingdom has been shaped by the structure of Article 50, and by the European Union law on the internal market, and by the Good Friday Agreement.

Such texts have led to all sorts of policy and political contortions and distortions, with things being pushed and pulled in one direction or another just to accord with (perceived) legalities.

A lawyer, however, would never have predicted what happened after 2016 just by looking at the dry, black letter text of Article 50 and other European Union provisions, and by the Good Friday Agreement.

There is a limit to how much one would understand about, say, Brexit or Trump by just looking at legal instruments and transcripts.

But there is, I hope, a valid purpose in doing so.

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Why political conservatives should embrace free historical inquiry – rather than imposing and promoting an official version of the history of the United Kingdom

15th February 2021

Another weekend, another Sunday newspaper splash from the government and its media supporters hoping to have a culture war to which their opponents will come.

From yesterday’s Sunday Telegraph:

Now, having digested (or otherwise) this ‘torpedo’, let us go back thirty-or-so years to a time when political conservatism in the United Kingdom was in a far more intellectually confident state.

The late 1970s and 1980s was when a range of conservative (big ‘C’ as well as little ‘c’) academics and public intellectuals were challenging (perceived) orthodoxies in many intellectual disciplines: economics, sociology, and so on.

In the historiography of the United Kingdom, in particular, many received versions were being questioned.

Jonathan Clark and others were subverting the ‘whig’ or ‘Enlightenment’ view of the ‘long eighteenth century’ of 1660-1832 and were urging instead that religion generally and Anglicanism in particular be taken seriously as an explanatory means of understanding political and social change – and lack of change.

For the nineteenth century, John Vincent and Maurice Cowling were disputing that the widening of the franchise in the 1860s was to do with any sense of democratic progress, and were contending instead that it was far more about the cynical political opportunism of the politicians involved.

In respect of the twentieth century, Correlli Barnett was confronting the comforting origins of the post-war welfare state consensus with an equally discomforting counter-narrative in his Pride and Fall sequence.

A brilliant young historian named Andrew Roberts took on head-first the most cherished of recent British myths in a book entitled Eminent Churchillians – the poundering revisionism of which would make even the most devoted admirer of Netflix’s The Crown blush.

(Eminent Churchillians remains Roberts’ best book by a country mile – and its demolition of Arthur Bryant’s patriotic history a delight.)

There were many others.

It was a fascinating – exciting – moment to be a student of history (as I was).

And all this at a time when communism (in its post-war form) was about to come to an abrupt end, notwithstanding the claims from a few (if not the many) that such a system was historically inevitable.

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Thirty years later, no doubt little of this intellectual energy has perhaps left a lasting historiographical mark.

The weaknesses and faults of these historians and their histories have, in turn, been exposed.

Historiography has moved on.

But at the time it signalled an unafraid seriousness to take on and replace versions of history on which liberal and progressive pieties often rested complacently.

And it was not an accident that these academic challenges were concurrent with the politics of Thatcherism that also sought to take on the certainties of left wing and centrist positions.

So it seems telling that the conservatives of today do not share the intellectual confidence of their counterparts of thirty-or-so years ago.

Instead of taking on histories that show the precariousness of the ‘Union’ of the United Kingdom, or how much British economic development depended on the ownership of slaves and the system of slavery, or how the British empire was as just as exploitative and brutal as any other empire – these discomforting challenges to the conservative worldview are to be ‘torpedoed’ by bureaucratic directions instead. 

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Many ideologies have, as a component, a theory of history.

Certainly many ideologues do.

And this is true for internationalists as well as nationalists, liberals and progressives as well as conservatives, Remainers as much as Brexiters, and so on.

One test of the soundness – indeed robustness – of that ideology is how it copes with fundamental challenge.

Are the ancient tools of ‘heresy’ and ‘blasphemy’ re-fashioned with modern guises so as to do the work of closing down unwelcome subversions?

Or are the foundations of the ideology more robust than that?

(And there is always the question of whether a thing is an ‘ideology’ just because you say it is.)

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A great deal of modern political conservatism – now hardening into the worship of plaster and plastic heroes – was based on the questioning of received historical conventional wisdoms in the 1970s and 1980s.

And now conservatives want to pull their intellectual shutters down, pull up the historical drawbridge, and fill the moat with torpedoes.

Those who support the current government of the United Kingdom – and the view of the British past that it promotes – should relish taking on the historiographical challenges presented by a more-rounded understanding of the history of these islands and of their economic and imperial history.

For if that ‘Brexit’ understanding of British history was valid then current Brexit positions will be validated.

And if those understandings are invalid, then it will show that the Brexit endeavour may itself be misguided.

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