The Relationship between Language and Cultural Identity

It seems appropriate to conclude this book with a focus on language and linguistic expression. After all, we have seen throughout the book that language is essential to both culture and law, playing a role that transcends its normal and most obvious function simply as a vehicle of communication. Quite likely, it actually structures and thereby influences individual perceptions and actions. According to the famous Sapir-Whorf hypothesis, language filters sensory information so significantly that it shapes our understanding of reality. The effect is a particularly profound example of the role of culture, given the primacy of language.

The manner in which individuals express themselves can both enhance intercultural communication and help foment conflict. Consequently, and even in the absence of conflict, the use of language often raises serious political and legal questions for society and its governance. Intervention by the state may be necessary but also problematic. For example, a decision to officially recognize one or another language or perhaps more than one language may affect the allocation among persons of social services, education, political participation, the judicial process, and regulation of the media. As we will see, linguistic human rights address the resulting domestic and international issues.

The inspiration for this book has several sources. The core themes of linguistic and other cultural rights, cultural identity and differentiation, cultural heritage, traditional knowledge, sports, and religion are of fundamental importance to humankind. They are matters that truly engage people at the grass roots, often commanding their daily attention. The related legal processes are both significant and complex. It is therefore not surprising that a vast legal literature has blossomed concerning themes of cultural activity and artifacts. And yet this intellectual development remains on the fringe of legal and social science education. Courses on issues of cultural law or culture and law are few and far between. To the best of our knowledge, this is the first comprehensive coursebook covering a broad range of these issues.

A first source of inspiration for this book, then, is the need we have perceived to bring cultural law more into the mainstream of legal and social science education. A second, related source of inspiration is the opportunity to offer a more integrated, coherent framework for studying the diverse themes of cultural law. Clearly, there are common threads running through these themes and the related legal processes. Certain rules of tort, contract, constitutional, and administrative law, as well as methods and procedures of dispute resolution, recur throughout the book, regardless of the specific cultural theme. Likewise, we consider the role of international law – both customary and conventional – throughout the book. Although the specific topics of “art law,” “sports law,” “law and religion,” “cultural rights,” “traditional knowledge,” and so on, serve important organizational and analytical purposes, they also minimize the reality of a common framework of cultural law. These discrete rubrics are also misleading insofar as students and practitioners alike may fail to appreciate the possibilities of broader professional specialization in cultural law.

Ricardo J. Elia, Looting, Collecting, and the Destruction of Archaeological Resources, 6 Nonrenewable Resources, no. 2, at 85–86, 88–89, 91, 93, 95 (1997)

Archaeological resources are frequently described as nonrenewable resources. It is true that new archaeological sites are being formed every day by the same processes that created sites in the past – the disposal of refuse, the [abandonment] of living and working spaces, and natural causes like alluviation, flooding, and earthquakes. But archaeological resources from past epochs can never be renewed. The surviving stock (including recorded and as yet unrecorded sites) of Sumerian temples, early hominid sites, or Anasazi pithouses is all that we will ever have; the resource base of past sites may be preserved or diminished, but will never be augmented. To cite one specific example, historical records indicate that between 1492 and 1520, the period of European exploration of the Americas, slightly more than 50 vessels were lost in the New World. Considering that some of these ships were later stripped for parts and materials, the actual number is probably smaller. The result is a strikingly small potential database for underwater archaeologists who are interested in this important period of nautical history.

The physical remains of the past constitute a fragile and finite archaeological resource base that is regularly threatened with depletion, destruction, and disturbance from several causes, some deliberate and others unintentional. The principal causes of the attrition of the archaeological record are environmental forces, development, warfare, vandalism, and looting. Each factor varies in intensity and scope, but all produce the same result – a steady, irremediable erosion of the record of our life on the planet.

The Cultural Dimension of the Legal Process

Legal issues may lead multiple lives. They can be political, economic, social, historical, or cultural. Normally, the particular classification of an issue, in the abstract, is not so important. What is important, however, is to understand how a particular nonlegal dimension may condition the analysis of an issue and the appropriate response to it. Gaining this understanding is a matter not only of viewpoint or specialized information but also of professional skill. It is a skill that is best acquired by gaining a comprehensive understanding of the manifold ways in which a particular dimension of human experience – for our purposes, the cultural dimension – affects the legal process.

The first two chapters in this book address the problem of cultural conflict, the interaction of culture and law, a working definition of cultural law, and the characteristics of both culture and law. The remaining chapters examine the interaction of culture and law in specific contexts of cultural expressions, practices, and activities such as art, traditional knowledge, sports, and religion.

Introduction

Claims for the return or restitution of cultural heritage are of central importance on both domestic and international levels of cultural heritage law. On the domestic level, for example, the historical and cultural identity of tribal and other indigenous groups may be at stake in efforts to reclaim significant artifacts from museums, art galleries, and private collections. On the international level, the recovery of stolen cultural material, whose value is estimated to be more than $3 billion annually, requires substantial diligence by customs officials and cooperation among governments, private institutions, and individuals.

Obligations to return cultural material to territories of origin date back at least to Greek and Roman times. Until recently, those obligations were addressed almost exclusively to military-related problems of plunder, the spoils of warfare, and occupation. For example, the Hague Conventions of 1899 and 1907, followed by the reparation provisions of the Treaties of Versailles and Saint-Germain after the First World War, underscored the illegality of military plunder and articulated the remedy for victim states. Twenty-five years later, during the Second World War, a leading scholar, urging moderation in dealing with the Germans after the war, referred to the Treaty of Saint Germain. Its provisions for the return of historical and cultural material took account, on a reciprocal basis, of the cultural heritage of both the victor, Italy, and the loser, Austria:

The Issues

In the following conversation, the participants, who come from several professional fields, discuss their respective understandings of culture. In the course of their remarkable discussion, they cover most of the basic issues about the concept of culture. We will have occasion throughout the book to draw on their insights.

Clyde Kluckhohn & William H. Kelly, The Concept of Culture, inThe Science of Man in the World Crisis 78–106 (Ralph Linton ed., 1980)

the lawyer: At the last meeting of this little discussion group of ours, we got into quite an argument about “culture” as a technical term in anthropology – exactly what anthropologists mean by it and whether it is any use or not. The big dictionaries and even the anthropological books here in the club library didn't help us out very much. We did gather that the anthropological conception, like all the other scientific and popular usages, carries with it an implication of human interference, of something being added to, or altered from, a state of nature. But we found ourselves wishing that we could ask questions which might clear up points which were sidestepped or simply not discussed by these formal statements. We therefore prevailed upon you gentlemen to come here and let us put you on the spot.

In this chapter, we examine the exciting cultural activity of sports competition. Before we turn to the legal framework, it will be useful to place sports in a larger context of play, games, and recreation. It also is useful to ask about the consequences of classifying a particular activity as a recreation or sport by contrast to some other form of activity. We will see that a classification we may take for granted is actually culturally conditioned.

David Parlett, The Arts of Contest, inAsian Games: The Art of Contest 23–24, 27 (Asia Society 2004) (reprinted with the permission of the Asia Society)

We might begin by asking[,] “What is a game?”…[A] glance at any substantial dictionary will uncover a long list of intuitively but not analytically related usages. They include triviality (“This isn't a game”), scheme or intrigue (So that's your little game!”), pursuit (“The game's afoot, Watson!”), object of pursuit (“Big game hunter”), prostitution (“On the game”), performance of a game (“My game's a bit off today”), and target score (“Game is 121 points”). Eric Berne's book Games People Play is a psychological study of “social transaction”; James Carse's Games Finite and Infinite is an exercise in theology. “Game theory” started life as a mathematical model of economic behavior, and has been extended to a variety of practical and academic studies, but offers little of interest to the players of real games like faro or football. About the only thing these uses have in common is some underlying concept of purposeful activity, except in ironic mode, when with equal facility they come to connote purposeless activity.

The Definitional Framework

Broadly speaking, the term “cultural heritage” refers to all of the myriad manifestations of culture that human beings have inherited from their forebears. These manifestations include, for example, art, architecture, rural and urban landscapes, crafts, music, language, literature, film, documentary and digital records, folklore and oral history, culinary traditions, traditional medicine, ceremonies and rituals, religion, sports and games, recreational practices such as hunting and fishing, and dance and other performing arts. In a narrower sense, however, the term “cultural heritage” is often limited to tangible or material objects – essentially, cultural material or objects – and intangible ideas related to such objects. We commonly associate this narrower definition with the legal concept of property whether we are referring to physical or intellectual property. Accordingly, the terms “cultural property” and “cultural heritage” sometimes are used interchangeably. Strictly speaking, however, the term “property” connotes ownership and imputes rights to owners and possessors of objects.

The multiple meanings of the term “cultural heritage” may lead to confusion, as is apparent in diverse efforts not only to protect culture itself but also to enhance its meaning in people's lives. Difficult questions arise that may challenge presumed values. Take three examples.

Introduction

Once largely seen as institutions catering to school visits and elite scholarship, museums have been reinventing themselves. As Western countries embrace multiculturalism and as financial support for the arts dwindles, museums have become both more sensitive to their diverse communities and alive to the challenges of fund-raising and commercial ventures. These developments have spurred reexaminations of the laws and policies surrounding museum governance – as we have seen, for example, in the return of objects to indigenous peoples and victims of Nazi-era confiscations. Museums have also been engaged in debates about controversial exhibitions and the appropriate missions they should pursue.

There is no definitive legal or even factual definition of a museum. Nevertheless, although the basic concept of a museum has changed over time, it retains the scholarly cast of the word's origin in the Greek mouseion, meaning “seat of the Muses.” It is also understood that modern museums have two basic dimensions: a physical manifestation – usually a building enclosing objects of certain kinds – and an intellectual dimension that expresses the purposes for which the objects in the building's collection are preserved and complemented over time.

Toby Lester, Oh, Gods!Atlantic Monthly, February 2002, at 37

Contemporary theories of social and political behavior tend to be almost willfully blind to the constantly evolving role of religion as a force in global affairs. The assumption is that advances in the rational understanding of the world will inevitably diminish the influence of that last, vexing sphere of irrationality in human culture: religion. Inconveniently, however, the world is today as awash in religious novelty, flux, and dynamism as it has ever been – and religious change is, if anything, likely to intensify in the coming decades. The spectacular emergence of militant Islamist movements during the twentieth century is surely only a first indication of how quickly, and with what profound implications, change can occur.

It's tempting to conceive of the religious world – particularly when there is so much talk of clashing civilizations – as being made up primarily of a few well-delineated and static religious blocs: Christians, Jews, Muslims, Buddhists, Hindus, and so on. But that's dangerously simplistic. It assumes a stability in the religious landscape that is completely at odds with reality. New religions are born all the time. Old ones transform themselves dramatically. Schism, evolution, death, and rebirth are the norm. And this doesn't apply only to religious groups that one often hears referred to as cults. Today hundreds of widely divergent forms of Christianity are practiced around the world. Islam is usually talked about in monolithic terms (or, at most, in terms of the Shia-Sunni divide), but one almost never hears about the 50 million or so members of the Naqshabandiya order of Sufi Islam, which is strong in Central Asia and India, or about the more than 20 million members of various schismatic Muslim groups around the world. Think, too, about the strange rise and fall of the Taliban. Buddhism, far from being an all-encompassing glow radiating benignly out of the East, is a vast family of religions made up of more than 200 distinct bodies, many of which don't see eye-to-eye at all. Major strands of Hinduism were profoundly reshaped in the nineteenth century, revealing strong Western and Christian influences.