In Defense of Tomb Robbing
[This Mises Daily was originally published on May 30, 2001. An MP3 audio file of this article, narrated by Colin Hussey, is available for download.]
Tomb robbing might at first appear to be incontrovertibly wrong. But, as with all questions involving property rights, it needs to be asked: Who is it that is really being robbed?
The Ukrainian government, for one, believes that the government itself is the victim. And the sorry tale of its inability to repulse these invaders was the focus recently of an entire report by the BBC. We were told how "the Mafia" smuggles out $2 million a year in looted Scyth antiquities, how the frazzled agents try to make do on a monthly salary of $50, and how tomb robbers can afford fast getaway cars even as the government struggles to raise the cash to gas up its own vehicles.
The sought-after objects are the remnants of the Scythians, who are a fairly typical representative of ancient civilization and its tombs. The Scythian empire flourished in the five centuries between the 7th and 2nd centuries BC. The Scythian army was made up of freemen who received as their wages only food and clothing, but who could share in the plunder by presenting to the rulers the head of an enemy soldier.
On the backs of the conquered grew up a class called the Royal Scyth, whose burial customs were elaborate, calling for the sacrifice of the members of the dead man's household, including his wife, his servants, and his horses. The Royal Scyth left behind elaborate tombs filled with finely crafted works of gold and other precious metals. It is these grave sites that routinely are found in the Crimea and southern Russia.
The excavation of these grave sites and the recovery of these artifacts is considered either a noble scientific pursuit or, in some places, a crime punishable by death. If some state-related agency is the discoverer, it's called archaeology. But if you are a private explorer, then it's tomb robbery.
Who is getting robbed here? Is it the occupant or occupants of the tomb or grave? Or is it the "community," i.e., the state? And is it really stealing? Or should it be properly understood as the homesteading of unowned goods?
There would appear to be three possibilities:
The artifacts are still owned by the dead or their identifiable descendents or heirs.
They are owned by the "community" (or rather by its supposed agent, the state), whether lineal descendants of the historic population or the descendants of their conquerors or others who later settled the area.
They are unowned and therefore become the property of whoever first labored to discover their existence.
If the occupants of the tombs are the owners, how long do their property rights continue after death? How does one go about contracting with the dead? Who is their representative? Who can act for them? Surely, if you can't take it with you, then you can't claim it here.
The dead can no longer claim ownership rights; those rights expire upon the death of the individual, for the obvious reason that, no longer being alive, he can no longer act to express or defend his rights. Additionally, these artifacts — which themselves are surely likely the ill-gotten gains of raiding, exploitation from direct slavery, or the indirect slavery of tribute — are very old, and it's very unlikely anyone can claim to be identifiable descendants of the buried or of their slaves.
So, since we can't negotiate with the dead, what about the claim that the rightful owner is the "community" — the nation, the people, "history" — through its representative, the state? The obvious question would be, why in the world is some government "cultural heritage" commission automatically assumed to be the rightful heir to (1) a culture long since dead, and (2) the artifacts of a culture in the name of a citizenry that didn't even know it existed?
Government-funded institutes cannot be legitimate homesteaders, nor can their tax-supported agents in the field. The state, by not being an organization based on private property — that is, having clear paths of ownership — cannot in turn claim ownership over anything else.
Now, if the dead and the "community" cannot be the owners, then the goods are unowned and, as such, they become the property of the person who first labors to discover them. By mixing his labor with the unowned goods, he has added his capital — his labor — to the goods, which thereby become his rightful property. Should the discoverer be an employee of a individual or a corporation that is capitalizing the entire venture, then the backers are the rightful owners of any discoveries.
The "tomb robber," otherwise known as the archaeological entrepreneur, is the true and sole legitimate owner. No agency of government or its allied institutions can legitimately claim ownership outright or issue licenses or permits regarding the artifacts' use.
Another question to ask is, What makes tomb robbing any different from tomb raiding? What does the BBC reporter think about the careers of Lord Carnarvon and Howard Carter, to name but two, and the British Museum, which is clogged with the plunder of empire?
Let's apply our homesteading principle to another case of disputed ownership over antiquities, namely the case of the famous Elgin Marbles, which are housed in the British Museum. As the story goes, Thomas Bruce, 7th Earl of Elgin, was in Constantinople as the British envoy extraordinaire to the Ottoman Sultan from 1799 to 1803. Fearing that Turkish indifference would lead to their complete destruction, he obtained the Sultan's permission to measure, sketch, and copy Greek antiquities, particularly those of the Parthenon in Athens.
For added measure, the Turkish government threw in the authority "to take away any pieces of stone with old inscriptions or figures thereon." So accordingly, between 1803 and 1812, Lord Elgin hauled away and had shipped to England 253 friezes, sculptures, pedestals, columns, and other assorted artifacts. These were housed on private display, and while Lord Byron denounced Elgin as a vandal, a parliamentary committee acquired the collection for the price of £35,000 (although Elgin is said to have spent more than twice that amount for the whole adventure) and placed it in the British Museum, where it remains today.
Recently, the Greek government restated its claim and again asked the British government to return the antiquities — one of those things no doubt done for purposes of political propaganda and considerations of national pride. Consequently, the question remains: Who is the true owner of the Elgin Marbles? As the homesteading principle decrees, no government can legitimately claim to own any property, because the government itself is the beneficiary of involuntary and unequal property transactions.
First, the Ottoman Empire gained control over the Greek mainland by conquest and thus cannot legitimately have given Lord Elgin any permission in any relation to the antiquities. Subsequently, the independent Greek state, as the successor of the Ottomans, cannot in any way claim legitimate ownership over these artifacts, simply because no government can be a homesteader.
Assuming that no one homesteaded the Parthenon before Lord Elgin, we can conclude that these artifacts were unowned at the time that he and his workmen labored to plan and excavate their removal. Presumably, therefore, Lord Elgin was the legitimate homesteader and was perfectly within his rights to remove, display, and ultimately sell his antiquities to the British government (leaving aside the illegitimate origin of the funds that the government used to pay him with).
But does it really end there? Lord Elgin obviously was a landowner, holding large estates in Scotland. If his capital for this enterprise was drawn from the feudal rents extracted from illegitimate claims of ownership enforced by state power, it legitimately follows that the rightful owners of the Elgin Marbles are any living descendants of his feudal tenants. This is so because, as the marbles were the proceeds of criminal means — namely, the feudal-tenant condition — legitimate ownership cannot flow from it.
If his capital derived from legitimate farming using hired free labor, however, then the conclusion needs to be more precise. The profits from the hired labor and investment would have been legitimate, but his land ownership itself was the result of conquest — of theft centuries ago by his ancestors.
Only if living descendants of the original owners cannot be found would his title to the estates — and thereby his ownership of the capital and, consequently, the Elgin Marbles — be rightful.
If the descendants of the tenant farmers are the owners, then only they can choose to divide up ownership among themselves and return the marbles to Greece, with proper compensation being determined only between the sellers and the buyers. However, if Lord Elgin's ownership was by true homesteading all around, then his right to sell the antiquities to the British Museum stands.
But then the question remains: Who owns them now, since no government can own any property? As they were bought with extorted capital, justly the marbles belong to the people who were extorted. But owing to the nature of the state, these people cannot be identified. In that case, the legitimate owners of the Elgin Marbles would be the museum staff who have homesteaded them these many years while they existed in the ownership limbo of governmental possession.
When it comes to all artifacts, however — because of the ideologies that decree that all land and its contents are the implicit property in some form or other of the state — it for years has been a contest between those who, in the words of the BBC's report, "dig for profit" and those archaeologists who want to "preserve and study the sites for posterity." That is, it is a contest between those who claim ownership by just title and those who claim ownership by the threat or use of force.
Opponents of private exploration and collecting cite the alleged conflict between the goals of profit and scientific research. The example of the Crimean Eastern Institute, however, is typical of most universities and museums with modest budgets. The Eastern Institute keeps its artifacts — gold and silver jewelry worth tens of thousands of dollars — in empty cigarette packages and old medicine boxes, because "there is no money here for anything else."
How do the people benefit from having these artifacts locked away and not even on public display? Should they be content with paying taxes to fund the institute so they can have the satisfaction of declaring that "we" own them?
One of the Crimean archaeologists in the BBC's report, Elzara Hayretdinova, expressed her frustration by complaining that in the time it takes her to find and catalog an artifact, the "grave robbers" can pillage an entire site, rendering it useless for further study. "Give me a pistol and I'd kill them," she said.
When we arrive after they've been here, it's devastating. We have to study a huge quantity of material for our research. And when you come to the place and nothing is left, the history will always remain unknown.
But there is a solution to this that respects legitimate ownership, individual rights, public access, and scientific research — one that does not rely on police, confiscation, and the destruction of property rights.
If private acquisition of artifacts were to be recognized as legitimate, if "tomb robbing" were no longer treated as a crime, we could expect to see certain results, most important of which would be the professionalization of the tomb-robbing career.
The more knowledgeable the archeological entrepreneur becomes, the more accurately he can identify his finds and the more valuable he himself becomes to museums, universities, and private collectors. As the number of archaeological entrepreneurs increases, the amount of equipment and capital increases as well, and as these new diggers seek greater training in response to the demands of their markets, they will naturally seek out the assistance of established archaeologists.
It is easy to see how a mutually beneficial arrangement between private amateurs and professional archaeologists would arise. Besides offering simple educational training courses for would-be archaeological entrepreneurs, established archaeologists could pursue agreements whereby, in exchange for better documentation of digs and the handing over of commercially worthless artifacts, the amateur could receive professional advice and recognition. Another problem that the privatization of archaeology would address is that, while degreed archaeologists tend to be highly specialized, amateurs would tend to be generalists.
And specifically regarding the destruction of artifacts and sites by private diggers, this could be addressed by educating the entrepreneurs that the pieces and sites have value they can exploit. This could be done by the mutually beneficial offer of exchanging artifacts for access to professional advice, equipment, labs, and research. But by banning private ownership of these artifacts through their de facto claims of ownership over all artifacts on "their" soil and sending armed agents after tomb robbers, governments have attracted exactly those individuals who are the most reckless and unskilled and who concentrate on those artifacts that are the most valuable — to the detriment of historical and scientific research.
What went unmentioned by the reporter, but what should be obvious, is the outrageous greed of these state-supported archaeologists. They want to keep all artifacts locked away in drawers and hidden away in boxes on shelves and in basements; they want to keep them away from the hands of "exploiters" who will treat them as a commodity, instead of as history; they want to keep them out of the hands of those who only see their monetary value instead of their "real" value.
It's as if museums and other state-supported institutes are considered more moral precisely because they lack market mechanisms. Contrary to this nonsense, private owners have a natural economic incentive to allow scientific access to their artifacts since, by doing so, they can increase the value of their property. Once they have been studied — measured, photographed, and cataloged, and their scientific and historical value determined — they can be returned to their private, or rightful, owner.
Here as with so many things, when the state crowds out the free market and its incentives, the quality of goods and services declines dramatically and creates the well-known figures of the bootlegger, the gunrunner, the drug dealer, the ivory poacher, and so many others. Criminalizing private archaeology has only repeated this experience and has led to grief, anger, violence, and destruction, all to the detriment of historical and scientific research. "Tomb robbing" and archaeology are identical occupations.