Between orthodoxy and heterodoxy: the troubled relationships between heritage studies and heritage law

Abstract

This article discusses the relationships between heritage law (HL) and heritage studies (HS) from the perspective of international law. More specifically, it focuses on the ways in which HL scholars have integrated (or failed to integrate) HS considerations into their work, and vice versa. The paper shows that the relationship between HL and HS is better resolved with respect to orthodox approaches to both law and heritage. More specifically, orthodox HS and HL take each other into account only lightly, a strategy that, while unsatisfactory on many grounds, is balanced on both sides. However, when it comes to heterodox (critical) analyses in these fields, the relationship is far more fragile and unbalanced, from the point of view of heterodox HS, the law tends to be neglected or even sometimes rejected; whereas from the point of view of HL, there is a more conscious effort to fully engage with HS, which is made difficult by heterodox HS’s push against the law. This dissonance can lead to severe difficulties in understanding heritage work and even the field itself.

Keywords:

• interdisciplinarity
• heritage studies
• international heritage law
• orthodoxy
• heterodoxy

Acknowledgements

I am highly indebted to Robert Woods for research assistance that helped in the production of this piece. I am also thankful to an audience in Cambridge, Massachusetts, to Alexandra George, Laurajane Smith and the three anonymous reviewers for their input. I am finally thankful to the University of New South Wales Early Career Research Grants Program for funding part of the research for this article. All errors remain my own.

Notes

1. This notion, of course, is open to quite a bit of contestation. Even in the specific and rather confined realm of international HL, there is an argument to be made, for instance, that the World Heritage Convention system is based on the North American tradition of national parks, bringing with it a series of assumptions about the values and uses of heritage. For a collection of essays tracing this evolution of the international heritage movement, see Hall (2011a).

2. For statistics on England and the United States, see Harrison (2013, 71–75).

3. The term was coined by Laurajane Smith, and thus the prime discussion of the AHD can be found in Smith (2006).

4. Case Concerning the Temple of Preah Vihear (Cambodia v Thailand). Merits. Judgment of 15 June 1962. ICJ Reports 1962, 6. For a discussion, see Lixinski, Bordin, and Schmitz (2011).

5. Case of Kozacioglu v Turkey (Application No. 2334/03) Judgment of 19 February 2009.

6. The right to property is protected by Article 1 of Protocol 1 to the European Convention on Human Rights.

7. Ulph and Smith, cit. at 18–19. It is noteworthy that the one dissenting judge in this case, Judge Maruste, considered that the cultural heritage status of the building was not to be taken into account when determining the amount of compensation for expropriation, in language in line with the reasoning of the International Court of Justice in the Preah Vihear case, discussed above. Id. at 19.