As I read the insightful, entertaining, scholarly, and diverse articles in this issue of The Cambridge Journal of Law, Politics, and Art, I wonder to myself how these three elements have become so intertwined. Perhaps it is not surprising as art has always been an expression of power, human identity, perceived truth, and aspiration—qualities also shared by politics and law. This link is therefore certainly not new, but it is perhaps only in recent years that we have become so conscious of it.
25 years ago I answered an advertisement in The Times for the position of in-house lawyer at Christie’s auction house. At that time, the concept of an art lawyer did not exist. There was, after all, no great need for lawyers in a discreet world based upon gentlemen’s agreements, which functioned very smoothly on the basis of reputations, influence, and relationships. It was, in short, a world apparently untouched by the concerns of law and politics.
Over the following 25 years of my career as an art lawyer, all of that was to change dramatically. The catalyst for that change was not, as one might imagine, the evolving complexity of business in general. Rather, it was a series of historical, political, and technological events which catapulted art and the sale of art into the centre of wider discussions around justice, power, and identity.
The first such event was a belated realisation, in the late 1990s, that the war from 1933 to 1945 in Europe had been an assault not only upon nations and upon people, but upon culture and identity. That attack, which was accompanied by so many personal tragedies, had remained largely unaddressed in the immediate aftermath of the war, allowing artworks stolen by the Nazi regime to continue to circulate in the art market. By the late 1990s, prompted by the opening of European archives, museums, collectors, and the art market were hit with a wave of restitution claims by descendants of the victims of spoliation. Law, ethics, and commercial reality were all brought into play in resolving the resulting disputes.
On the heels of the wartime restitution claims came a focus upon ancient cultural heritage looted from conflict zones. While the 1970 UNESCO Convention had prepared the ground, the signatory ‘art market’ countries were very slow to introduce the national legislation necessary to put into practice the aims of the convention. As a consequence, cultural heritage in conflict zones all over the world continued to be the target of looting. Events in the Middle East would, however, challenge that inaction. Following the invasion of Iraq in 2003, unprotected archaeological sites and museums in Iraq were subjected to widespread looting. Afghanistan, Syria, and Libya suffered similar looting as law and order broke down amid their respective conflicts. Because this looting was widely reported in the West, the outcry was such that the art market was compelled to demonstrate that it had in place measures to ensure that looted antiquities from conflict zones were not finding their way into the salerooms. Politicians followed, albeit in the slipstream, introducing national legislation requiring the art market to carry out due diligence regarding the provenance of antiquities. None of these measures will stop the destruction and looting which are inherent to conflict, but they will perhaps help to prevent the fruits of that destruction appearing in the art market. Once again, progress was not achieved by any single measure but by the application of a combination of law, ethics, and commercial reality.
The third catalyst was the question of transparency and compliance. Discretion and confidentiality have always been central to the operation of the art world—and usually for good reason. Sellers understandably prefer not to advertise the circumstances which necessitate the sale of artworks, such as divorce and death. Buyers are also often keen not to advertise their wealth for reasons of personal security. Agents introduce a further layer of opacity, trying to preserve their commercial relationships by keeping confidential the identity of their principals. But in the modern art world, where huge sums are being transacted, a balance needs to be found between transparency and discretion. This need has been met by the passing of laws and regulations in many countries imposing onerous obligations on art market participants to carry out detailed due diligence on their clients and make disclosures to other art market participants. The art market is coming to terms with these critically important new obligations and, in doing so, having to acclimatise to a new environment of legal and compliance rigour—as well as a greater level of transparency, which is to be welcomed.
More recently, there has been a reappraisal of the display and ownership of art which was acquired—not in modern day conflict zones— but from colonies during colonial times or as a result of ancient conflicts. Many countries have, over time, been denuded of their artistic heritage and are understandably upset to see that heritage on display in the collections and museums of the world. This matters because, as the countries who have endured colonisation and invasion know all too well, art is closely linked to history and cultural identity. Politicians, collectors, and the art market are beginning to grapple with the question of ‘who owns history?’. As a result, we are also hopefully progressing towards reconciling the role of the global museum with efforts to recover heritage which was lost in the context of power imbalances.
Even now law, politics, and art are moving into a new phase with the growth of cryptocurrency, non-fungible tokens, digital art, and online sales. In doing so, lawyers, politicians, and artists will test new boundaries and challenge our perception of authenticity, originality, ownership, and value.
As a result of these events, art law is now a recognised discipline, rich not only in legal questions, but also in the consideration of wider political, artistic, and ethical questions. This journal is a wonderful reflection of that, and illustrates, for me, why this is such a fascinating area in which to work and about which to write. It is a privilege for me to have been asked to write this foreword and I hope that you will enjoy diving into this collection as much as I have.
Martin Wilson
Martin Wilson is Chief Executive Officer and former Chief General Counsel at Phillips auction house. He is a leading art lawyer and the author of Art Law and the Business of Art.