Electronic copy available at: http://ssrn.com/abstract=1277276
A Coordinated Legal and Policy
Approach to Undiscovered Antiquities:
Adapting the Cultural Heritage Policy
of England and Wales to Other
Nations of Origin
Derek Fincham*
Abstract: Blanket ownership laws, export restrictions, and the criminal law of
market nations are the default legal strategies currently used by nations of
origin to prevent the looting of archaeological sites. Although they have been
remarkably successful at achieving the return of looted objects, they may not
be the best strategies to maximize the recording and preservation of
archaeological context. In England and Wales a more permissive legal regime
broadly applied and adopted by the public at large has produced dramatically
better results than the strong prescriptive regime of Scotland, which can be
easily ignored.
This article attempts to clear up any misconceptions of the cultural policy
framework in England and Wales. It accounts for the legal position accorded
undiscovered portable antiquities, and describes how this legal framework is
perfected by a voluntary program called the Portable Antiquities Scheme
(PAS). This approach stands in stark contrast to Scotland, which has used a
legal strategy adopted by most other nations of origin.
The domestic legal framework for portable antiquities in England and Wales
is unique and differs from the typical approach. Coupled with the PAS, this
legal structure has resulted in a better cultural policy, which leads to less
looting of important archaeological sites, allows for a tailored cultural policy,
and has produced more data and contextual information with which to
conduct historical and archaeological research on an unprecedented scale.
Compensating finders of antiquities may even preclude an illicit market in
antiquities so long as this compensation is substantially similar to the market
price of the object and effectively excludes looters from this reward system.
*London School of Economics Forum for Law and Cultural Heritage, London, England. Email:
derek.fincham@gmail.com
International Journal of Cultural Property (2008) 15:347–370. Printed in the USA.
Copyright © 2008 International Cultural Property Society
doi:10.1017/S094073910808020X
347

Electronic copy available at: http://ssrn.com/abstract=1277276
Although the precise number of found versus looted objects that appear on the
market is open to much speculation, an effective recording system is essential
to ensure that individuals who find objects are encouraged to report them.
INTRODUCTION
In recent years the bulk of cultural heritage scholarship has focused on the im-
portance of archaeological context. This impressive body of scholarship, which I
classify as context centered, has focused on how cultural policy can preserve con-
text.1 Authors have become increasingly concerned with how museum acquisition
policies, private law, criminal law, multilateral agreements, and codes of ethics can
best preserve objects and their surrounding contextual information. Repatriation
and restitution of previously looted objects has increasingly emerged as a major
initiative among source nations, particularly Italy. World-renowned institutions
have been embarrassed by the attention drawn to illicit objects in their collec-
tions. Massive and extensive criminal investigations have appeared with increasing
frequency, notably in the United States and Italy.2 This ought to be somewhat sur-
prising. Such extended criminal investigations are expensive undertakings and hin-
dered by the lack of transparency that permeates the antiquities trade.3 As such,
the antiquities trade must seriously consider how and in what form it can hope to
continue to exist. This trade must, it seems, finally adopt the axiom of archaeol-
ogists and heritage advocates, that an object, even if very valuable and precious, is
substantially diminished in value without its accompanying archaeological con-
text. The market may find a tenable compromise by shifting its focus to the cul-
tural policy and legal framework in England and Wales.
This article steps back from questions such as who can or should own antiqui-
ties, where they should be displayed, and whether we should evaluate the viability
of so-called universal museums or even look at whether we can or should com-
pletely erase their commodification. Rather, it examines whether a more prag-
matic approach may in fact better preserve archaeological context given finite
political will, law enforcement resources, and money. As Colin Renfrew has noted,
despite all the reform, increased awareness, and increased domestic and inter-
national legal regulation, the destruction of archaeological sites “has increased rather
than diminished in the thirty succeeding years” since the creation of the 1970
UNESCO Convention.4 This may mean these legal and policy strategies, in isola-
tion, are not the best way to prevent the looting and destruction of sites.
The domestic legal and policy framework for portable antiquities in England
and Wales may offer an important potential model for cultural heritage policy-
makers.5 Indeed, perhaps the most remarkable aspect of the policy is that it has
produced a common ground between those who support a licit trade in antiq-
uities and those who criticize such a trade and advocate repatriation. As we will
348 DEREK FINCHAM