Fincham's solution to the Portable Antiquities Crisis

A few days ago there was discussion of Derek Fincham’s article "A Coordinated Legal and Policy Approach to Undiscovered Antiquities: Adapting the Cultural Heritage Policy of England and Wales to Other Nations of Origin" 15 Int'l. J. Cult. Prop. 347 (2008). The abstract appeared first, and among those discussing the reactions of portable antiquities collectors to it, the author singles out for criticism points I initially made about the collectors’ enthusiasm: “Sadly I'm afraid some already have reacted without even reading the piece”. At the time however that the initial reactions were coming in from the collectors, the full article itself was not available to any of us – collectors included. I was not convinced by the author’s arguments and position, but the writer correctly pointed out that “those interested in the scheme and archaeology [should] do me and the employees of the PAS the courtesy of reading the piece before dismissing my position”. True enough.

I have since had a chance to read the full text, and congratulate the author on an abstract that adequately reflects the content of the article. Having read the text in full, I find it does not really say anything much about the author’s basic premise than the abstract did not. I remain to be convinced by the author’s arguments. Below I set out why.

The purpose of the text is not entirely clear, nor to whom it is addressed. I find the core idea somewhat difficult to grasp. Fincham writes (p. 348)"the market may find a tenable compromise by shifting its focus to the cultural property and legal framework in England and Wales". But cultural policies and legal frameworks are not established by “the market” in portable antiquities. Neither should they be. The market in portable antiquities is global, and largely outside the law, how is it to shift its focus (whatever that means) to affect the cultural policy and legislation of the several dozen major "countries of origin" of the antiquities it handles? The author does not enlighten us.

The author seems to totally misapprehend why many states declare archaeological remains state property – it is not to “prevent looting” (p. 349, 351). Take Scotland (and Northern Ireland) for example. The imprecise term “looting” derives from (the act of disregard of) that legal framework and is not the reason for its creation which is far more complex. Nowhere do we find in Mr Fincham's text a definition of what he means by "looting". The same goes for the author’s treatment (p 349, 351) of export licencing. His statement (p. 351) "these two regulatory strategies are not focused at (sic) the real core of the problem: the looting of archaeological sites. Both are imperfect responses to damage that has already taken place" is therefore incomprehensible.

Equally incomprehensible to me is that this paragon of cultural heritage policy (the PAS) is the “underlying assumption that merely relying on law enforcement strategies and protection of sites will not produce the desired results”. It is very difficult for me to discern in Fincham’s text what these “desired results” would be if not the protection of archaeological sites.

I found the text dreadfully muddled and it could have done with closer editing. In places – particularly in the first part of the text (and like many discussions of this type) - the author fails to properly differentiate the terms "United Kingdom" from England and Wales. Admittedly he does include (pp 361-3) a valuable discussion of Scotland (though the nuances of the legislation seem to escape him), but Northern Ireland is omitted from the discussion. Suddenly he starts discussing the US (p. 355) before switching back to the UK. There is some doubt however whether the author really grasps the workings of the English and Welsh legislation, for example mentions of a “designated” coroner (p. 352). Neither is he up to date (p. 349) on the restrictions on metal detector use within the various parts of the UK (National Trust, SSSIs, the various DEFRA schemes). I feel the uninformed reader is likely to be misled by Fincham’s fragmentary discussion of the heritage legislation (pp. 353-5) which might give them the impression that Scheduled sites are Guardianship sites (and makes no mention of other forms of protection). Obviously this is not very helpful to the foreign collector trying to imagine how the British systems work. It also does not inspire much confidence in an author which is holding his vision of this legislation up as a model to be followed.

We are told that Fincham primarily "wanted to write what I hope is a thoughtful piece which describes in an objective way what the PAS does." What it actually does is to regurgitate the same old stuff being produced by the ream by the PAS itself. Fincham presents generally known things that can be garnered from their annual reports, some of it seems almost as if copied word for word from some of them. The author has obviously not gone beneath the layer of 'spin', inherent in what a stop-go funded ad hoc organization having annually to justify its very existence to cost-cut seeking bureaucrats feels it has to produce.

The main body of the text (pp 355-361) is merely a presentation of the “achievements” of the PAS which merely repeats the information already freely available in other sources. Instead of being particularly “thoughtful” in his use of this material, Fincham has swallowed all the spin. For example both PAS and Fincham praise PAS successes in getting Treasure cases reported. The same graphs are used (Fincham Fig 1 under “benefits of the PAS”). In neither case is it mentioned that the definition of what is Treasure changed twice (1996/7, 2003) in the period covered by the graph, and the two peaks on the graph correspond to those changes in definition. The reporting of Treasure however is not handled by the PAS but an independent unit with its own staff in the BM.

One is surprised to read (p. 355) that the PAS allegedly represents a policy that: “sharply contrasts with the context-focused narrative found in most culture heritage scholarship”. This gives a totally false impression of the PAS and its aims… It is all about context of the finds in its database. That’s what the database records. Likewise I am astounded to read that the PAS incorporates “the public’s interest in ancient objects and a potential reward” (p. 355). The PAS does not reward finders, neither financially or by any other means, they report to the PAS non-Treasure finds through public spirited attitudes and as Fincham says, out of interest. No money changes hands.

We are presented with a series of glib spin-statements which are nowhere backed up – such as the policies in England and Wales coupled with the PAS “leads to less looting of important archaeological sites” (p. 349). I really do not see how Fincham can say this. Where did he get the figures to substantiate this statement – presented as fact? (“Less” than what?) We also note the word "important" - how is that measured? I discussed Stixwould here a few days ago - let us note the reason why an excavation here was deemed necessary in September this year.

The final section is called: “can or should other nations adopt a similar scheme?”. Here we would expect to find the nitty gritty of a concrete proposal…. Fincham (p. 363) thinks that “at least two aspects of the cultural policy in England and Wales can and should be widely adopted: rewarding the finders of true chance finds and a community outreach program that educates the public about good practice and the importance of heritage and context”. Well, first of all, it is not true to say that in none of the nations “in Europe, Asia, Central and South America, or the Middle East” give chance finders of archaeological objects a reward for reporting them. This is a common mantra of the collecting community, but when asked to create a database of these “retentive” and “unfair” laws, they refuse. I suspect there is a fair amount of exaggeration here. I’d like to see the evidence set out properly for such generalizations. Which legislations reward and how much in what circumstances, and which do not and why.

Secondly in England and Wales, by no means are all reporting finders rewarded for the information they give. The vast majority are not. In Scotland where there is a far wider range of things reportable, the majority are. So I am at a loss why Fincham holds up the English and not the Scottish system as the more suitable for emulation from this point of view. If the English Treasure Act were applied in Egypt, the finder of an ostracon describing the building of the tomb of Seti I, the eye of a statue of Amenhotep III or shabti of Nefer-Nefer-Ka would not get a reward.

Dr Fincham wants people to be financially rewarded for obeying their country’s laws. Let us note that the only real reason for this is if they do not, there are plenty of dealers outside the country that would be willing to buy artefacts from finders no-questions-asked. In a country where artefacts are state property, there can be no legal market in them, only an illegal one. Fincham in proposing all countries must introduce a reward system is basically saying that the legal framework of ownership should be changed to allow a free-for-all and a legalisation of the market everywhere. Such legislative changes however would have a knock-on effect going well beyond the market (as for example, organization of conservation work, excavations, museum accessions etc). I wonder whether Fincham has thought all of them through in the light of the various national systems?

Fincham says “policies like the PAS are easy to change and adapt to a given archaeological resource”… Well, are they? Surely they are embedded in (and a response to) a particular configuration of social and other factors. Given, however, that the core of the PAS as Fincham presents it is “community outreach program that educates the public about good practice and the importance of heritage and context”, then do not many nations in fact already have such institutions? They are called state archaeological services, they often have regional inspectorates/offices, and are supplemented by museums. It is to these bodies that finders are asked or required to report finds. Often by law.

One thing Fincham totally ignores is that almost all of the PAS FLOs in England and Wales are embedded in the pre-existing museums identification service and existing county or regional archaeological units. I’d like to see Fincham (or the PAS) actually state what it is they do differently in terms of outreach that is not being done by archaeologists all over the world already. The PAS is merely an intensification of scale of the activities being carried out by museums for decades. The work of the PAS equally could be done by museums and archaeological bodies without the PAS, perhaps with a co-ordinating office within the structure of the MLA (for example in more central Birmingham).

The second factor which Fincham omits is the very real relationship between PAS data gathering and metal detecting clubs and rallies. Without them, the PAS database would be numerically thinner (significantly, PAS figures are lacking which would inform us by how much). To set up an imitation of the PAS in Iraq or Egypt, you’d first have to set up metal detecting clubs and rallies there. The all important factor is the social setting of the PAS, which is lacking in many other “source” countries. I’d like to ask whether Fincham would advocate introduction of a PAS system with attendant liberalization of the laws on state claims to archaeological material for neighbouring Scotland or Northern Ireland and whether he thinks that would be a forward or backward step, and in what respects. I am not at all convinced that setting up metal detecting (or tomb-robbing) clubs in Iraq or Egypt or Guatamala so that a PAS-clone can gather “information” (of what type?) from them would really be an archaeologically-positive move.