John Henry Merryman

The French deviation

To a comparative lawyer, the end of the socialist revolution in the Soviet Union and its satellites provides a number of topics for reflection. For one, why did the effort to build a socialist legal system following the 1917 Revolution produce such apparently inconsequential results? The American and French Revolutions are generally thought to have had fundamental, lasting legal consequences that are clearly visible today in legal systems throughout the world, but Soviet socialist law at its height seems never to have penetrated the surface of the culture in the USSR or elsewhere. Socialist legal principles appear in retrospect to have been at most a sort of temporary superstructure erected on a legal base that was largely Western in character. With the end of the Soviet experiment that superstructure has been dismantled, leaving few marks. To use a different metaphor, the Western legal body appears to have rejected the socialist transplant. The attempt to build a socialist legal order now looks more like a temporary deviation than a new direction. My purpose here is to discuss a legal invention of a different revolution, one that also sought to introduce a radical change into European law. I will suggest that this history is in important ways analogous to the history of Soviet law. It illustrates how an attempt to establish a fundamental legal reform derived from one nations political and historical imperatives, fuelled by the works of influential theorists and widely exported to nations with different political and historical characteristics, eventually revealed itself to be a parochial product of a particular set of historical conditions. Rather than the relatively simple process of dismantling a temporary superstructure, however, the effort to free legal systems from the consequences of this deeply embedded innovation has been long and painful and is still incomplete. The revolution to which I refer is the French Revolution of 1789. The innovation was the effort to make the law judgeproof. Part of the story is familiar. In pre-Revolutionary France the regional parlements became centers of conservative power. The judges,

Cultural Property Internationalism

Cultural property internationalism is shorthand for the proposition that everyone has an interest in the preservation and enjoyment of cultural property, wherever it is situated, from whatever cultural or geographic source it derives. This article describes its historical development and its expression in the international law of war, in the work of UNESCO, and in the international trade in cultural objects and assesses the ways in which cultural-property world actors support or resist the implications of cultural property internationalism.

A Licit International Trade in Cultural Objects

Retentive nationalism has until recently dominated thinking about the international movement of cultural property, while the international interest in an active licit trade has been ignored and the interests of museums, collectors and the art and antiquities trade have been denigrated. An active licit market in cultural property advances the international interest, provides income to source nations and reduces the harm done by the black market. Trade in “culturally moveable” objects in private hands serves the international interest and is internationally licit, even when it offends national export controls. Source nations can reduce the damage from clandestine excavations by employing more sophisticated domestic controls and feeding surplus archaeological objects to the licit market. The “commodification” objection to an active trade in cultural objects lacks substance. Market nations can provide the most effective political force for development of an active market. They, and the art and antiquities trade, can help source nations finance organization of their cultural property resources for effective participation in a licit international trade.

Cultural property ethics

After briefly discussing ethics in general, stating the public interest in cultural property, and positing that collecting and dealing in cultural objects are not inherently unethical activities, the writer contrasts ethical attitudes toward legal controls over the international movement of people and of cultural objects. He then discusses the ethical bases of cultural property export controls and ethical questions raised by dealing in and collecting cultural objects, and identifies particular applications of export controls that are ethically unproblematic or ethically clouded. He discusses the difficult area of antiquities and questions whether anyone involved in it - from source nations, archaeologists, and ethnographers to museums, collectors, and the art trade - has clean hands. Finally, he states a hypothetical case of invited theft and asks readers to decide what the ethical response would be.

The Civil Law Tradition. An Introduction to the Legal Systems of Western Europe and Latin America.

Designed for the general reader and students of law, this is a concise history and analysis of the civil law tradition, which is dominant in most of Europe, all of Latin America, and many parts of Asia, Africa, and the Middle East. This new edition deals with recent significant events& such as the fall of the Soviet empire and the resulting precipitous decline of the socialist legal tradition& and their significance for the civil law tradition. The book also incorporates the findings of recent important literature on the legal cultures of civil law countries.