Professor Karl, The PAS and the Austrian Denkmalschutzgesetz (I): Introduction

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Professor Raimund Karl of Bangor University has published an article in 'The Historic Environment, Vol. 2 No. 2, October, 2011, 111–33 called "On the Highway to Hell: Thoughts on the Unintended Consequences for Portable Antiquities of § 11(1) Austrian Denkmalschutzgesetz" which certainly seems to have set the cat among the pigeons. It has received notice in British Archaeology magazine, on Tom King's blog as well as Derek Fincham's. It has apparently figured also on coiney forums and thence, recommended as an approach by dealers' lobbyist Peter Tompa (as I showed in earlier posts on the topic) played a major part in public submissions to the CPAC over the renewal of the Cyprus MOU.

Professor Karl argues among other things that Austria's system of licenses for archaeological fieldwork has had unintended consequences:

"the number of finds reported by members of the public has declined dramatically".

(He makes another point [pp 127-8] that "conditions issued by the Bundesdenkmalamt on excavation licenses only affect archaeologists, who have no means to fullfil them, rather than owners of finds and documentation, who would have", which I do not intend discussing here as the disposal of the project archive is a separate issue). Both of these situations he suggests though having good intentions behind them

"turn out to be the pavement (sic) for a highway to archaeological heritage hell".

Both Dr Karl’s text and my own are a lot of words, so to summarise down to the bare minimum. Karl’s “road to heritage hell” basically consists of the fact that artefact hunters cannot get permits to hoik artefacts out of the ground legally, so they are reduced to doing it illegally. Not surprisingly they are not reporting their own illegal activities, but in Britain where there are no such constraints, lots of finds are known from these activities. That's basically it.

The Bangor Professor's text has been seized upon by no-questions-asked artefact collectors who then use his conclusions, taken out of context, as an excuse for opposing measures intended to clean up the international antiquities trade. They argue in effect that since Karl has shown in this paper that the issue of excavation permits “drives artefact hunting underground” and in countries which allow looting (like England and Wales with its voluntary Plundered Artefacts Recording Scheme), it is openly carried out, they do not see why they should not buy looted and smuggled artefacts. In addition, their line of reasoning reveals that they do not see the difference between the PAS-type recording system and the issue of export permits (in reality the PAS is absolutely unrelated to the export permit system of the UK).

Dr Karl himself seems to have remained aloof from these wider discussions, restricting himself to pointing out, in comments to my own initial text on a summary of his views published in the magazine British Archaeology, that I am “wrong”. Nobody else seems in a hurry to discuss the paper and its implications. Derek Fincham moans:

“I thought about posting a longer response and discussion, but sadly I've given up hope that the heritage advocacy sites on the interwebs (sic) can offer any useful forum for discussion”.

Well, that may be, but that is no reason to ignore the issues raised and not to attempt to discuss them openly from different points of view. I gave an initial reaction at the beginning of December, and have twice sat down to try and address the paper more fully and twice been sidetracked by other considerations. Time has come to set aside enough time to do it justice and grasp the nettle.

Dr Karl’s text, while at first sight seeming straightforward is written from a certain viewpoint. That viewpoint when looked at in detail differs fundamentally from my own, so in order to address it properly, those differences have to be explained. So the length of the text has suffered, which is why it has to be split into several parts (which I will post in reverse order so they can be read from top-down rather than bottom up). They are still too long, but I have no time to shorten them.

Let us be clear, Professor Karl was writing about the situation in Austria. My interest in it is about what he writes about (and deduces from) his notion of what is happening in England, Wales and (to a lesser degree) Scotland. In this discussion, I will also ignore the aspect of the transatlantic collectors’ claptrap about the use of Karl’s conclusions in the opposing of US legislation on lawful imports and exports of antiquities. Simply put, the situation discussed by Karl cannot be used in the simplistic manner which they do. As I mentioned above, I will also not discuss here the question he raises [pp 127-8] in his attack on “Austrian Denkmalschutzgesetz § 11(1)", of the disposal of project archives.

First of all, I must begin by stating that I would be very surprised to find a country which has an antiquities/heritage protection law which was anything like adequate to the task, let alone perfect. When I worked in the Ministry of Culture here I was involved in a minor way with the drafting of (a previous version) of the current law here in Poland, and while we have one of the strongest laws in Europe (and what was eventually passed by those who came after us diverges quite markedly from we had wanted), it still does not work. Having sat through some of the meetings with various interest groups (and in my case this also included metal detectorists) and state employed cultural property lawyers, I can see why these situations not only arise but are unavoidable, quite a thought-provoking experience. The Austrian system is very much like the Polish one (with one very significant difference which I'll mention at the end) and I can sympathise both with those who wrote it, and with Professor Karl's frustrations.

Professor Karl concludes [p. 124] rather dramatically:

if ever a law written with the best of intentions has backfired spectacularly, this must be it. Rather than achieving what it set out to, rather than offering the best possible protection for the archaeological heritage, it has achieved the precise opposite: it does not prevent members of the public searching for archaeological finds, but it is exceptionally successful in preventing members of the public from reporting them, and from collaborating with the archaeologists who essentially need exactly the information that people are in practice forced to conceal by a useless law.

I think we should differentiate more clearly than Karl has done in his paper between the underlying principles and the effects of individual elements of a law on certain interest groups.

It is not my intent to explore, still less defend, the Austrian Denkmalschutzgesetz, but it strikes me that the case for it being “useless” has been vastly overstated in his text on the basis that it prevents artefact hunters hunting for collectables in Austria’s archaeological record which is a fragile and finite resource just the same as it is everywhere else. The question of whether this artefact hunting is desirable or not is swept aside by the paper's author by the uncritical application of the same glib non-arguments that we see in the British Portable Antiquities non-debate. Here we see the PAS’ own current lack (out of self-interest and probably apathy) of deeper reflection and discussion on some of these aspects is continuing to have a damaging effect which goes far beyond its local context. This is my main interest in Professor Karl's recent paper.
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