REPATRIATION OF CULTURAL PROPERTY

LYNDEL V. PROTTt

I. INTRODUCTION

Repatriation is not a new issue in international law. Arguments againstthe deprivation of South American indigenous populations of theirproperty were developed by Francisco de Vitoria in the sixteenthcentury. However the modern context of the issue does show somesubstantially new and important aspects.

The first important point to note is that, when talking about thereturn of cultural property to indigenous peoples, there are two quitedifferent legal situations. Because cultures are not co-extensive withnations, claims for repatriation to autochtonous peoples may be con-tained within one legal system, and thus become matters of internal ornational law, or they may be claims against another state, and thusbecome matters of international law. The moral and cultural issues maybe the same, but the legal context is quite different.

Claims for the return of cultural property to indigenous peoples arenow receiving serious attention of a kind not really given between theheyday of colonialism and the i 96os. This has happened for two reasons:First, the advance of anthropological thinking, which has insisted on therespect of diverse cultures and the important values which each have tocontribute to the human tradition; and second, the development ofhuman rights philosophies which have given these peoples a basis ofclaim legitimate even in legal systems which have hitherto denied theirrights to their own cultural materials.

In both legal contexts this has led to important developments. Duringthe i96os, at the major period of decolonization in international law,claims were made for the return of cultural property as part of thedecolonization process. These claims met with only limited success buthave left behind some important procedural openings. Later, during the198Os and 199os, claims of indigenous peoples within national legalsystems, especially in Australia, Canada, New Zealand and the United

t Dr.Juris (Tubingen), Lic. sp&c. en Dr. Int. (Brussels), BA., LL.B. (Sydney). Chief, InternationalStandards Section, Division of Physical Heritage, UNESCO, Paris and Professor of CulturalHeritage Law, University of Sydney (on leave).

© Lyndel V. Prott, I995.

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States, have met with more success. Since the cultural and moral issuesare the same, this has inspired new movement in international law,issuing in particular from the indigenous populations movement withinthe context of the United Nations. It is important therefore to assess thepresent status of claims for repatriation in international law.

Here I have to differ with Professor Nafziger, who said that theprinciple of repatriation was no longer in doubt, and that the questionswere now rather "What," "When" and "How." Although these issueshave been debated for many years in a number of English-speakingcountries (in particular in Australia, Canada, New Zealand and theUnited States) and the discussion has now moved on to discuss solu-tions, this is not true of Europe where the discussion of the particularinterests of indigenous peoples has hardly begun and the principle isfar from accepted. This became very evident in negotiations withinUNIDROIT (the International Institute for the Unification of PrivateLaw) for a new international treaty on the return of cultural property.The Greek delegation proposed a preferential period of limitation(seventy-five years) for objects stolen from ecclesiastical and publiccollections (as opposed to thirty years for all other claims). The Aus-tralian delegate proposed that this preferential treatment be extended tothe sacred and secret objects of indigenous peoples. Most Europeandelegations expressed alarm at this proposal; they were not clear whatthe concept of "indigenous peoples" included and they wanted, inparticular, to know whether there were any in Europe. UNESCO hasmade it clear that it could not accept a provision that would discriminateagainst the cultural objects of indigenous peoples.

II. HISTORY

During the i96os and 1970S the emergence of new states from oldcolonies and trust territories led to discussions within the UnitedNations as to the fate of cultural property which had been taken by thecolonizing states and was now located in those countries. Althoughthere were substantial precedents concerning the succession of statesthat were in favour of the claims being made, e.g. the return to Hungaryafter its independence of important cultural property held in Austria,these precedents were not applied in the case of the decolonized states.During negotiations for the UNESCO Convention on the Means ofPro-hibiting and Preventing the Illicit Import, Export and Transfer of Owner-ship of Cultural Property 1970, radically opposing views were expressedon the issue and the Convention was made non-retroactive.'

I For more detailed discussion of the historical issues, see P. J. O'Keefe & L. V. Prott, Law and theCultural Heritage, vol. llI;'Movement (London: Butterworths, 1989) 802-26.

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In 1973 the United Nations General Assembly passed the first of aseries of resolutions on the subject. Resolution 3187 (XXVIII), entitled"Restitution of works of art to countries victims of expropriation,"referred in its preamble to the Declaration on the Granting of Indepen-dence to Colonial Countries and Peoples (UNGA 151 4 (XV)), and de-plored "the wholesale removal, virtually without payment, of objets d'artfrom one country to another, frequently as a result of colonial or foreignoccupation" and stated that "the restitution of such works would makegood the serious damage suffered by countries as a result of suchremoval."

In response to these developments the General Conference ofUNESCO in 1974 passed a resolution inviting the director-general tocontribute to the work of restitution. A meeting of experts convened byUNESCO in Venice in 1976 located some of the key points of dissen-sion: whether there should be limits in space and in time for claims ofrestitution; what cultural property should be covered; how to define theconditions under which the objects concerned left their countries oforigin; whether their present legal status is relevant and so on. Thecommittee recommended a campaign to educate the public to under-stand the need for restitution or return. 2

In 1978 the director-general of UNESCO issued a Plea for the Returnofan Irreplaceable Cultural Heritage to those who Created It. The terms ofthis appeal are so important to the debate that the text is given in full inAppendix 3. While the text calls "for the return of at least the arttreasures which best represent their culture, which they feel are the mostvital and whose absence causes them the greatest anguish," it is impor-tant to note what it did not do. It did not, for example, call for theemptying of the great museums in the wealthy countries (a misrepresen-tation often made). It did not ignore the integration of certain objectsinto the cultural traditions of other countries. It talked of sharing and ofexchanges.

III. THE INTERGOVERNMENTAL COMMITTEE FORPROMOTING THE RETURN OF CULTURAL PROPERTY

The General Conference of UNESCO established 3 in 1978 the Inter-governmental Committee for Promoting the Return of Cultural Prop-erty to its Countries of Origin or its Restitution in case of IllicitAppropriation. The statutes of this committee are attached in Appendix

2 UNESCO Doc. SHC-7 6/CONF. 615/3, Final Report of the Committee of Experts to Study theQuestion of the Restitution of Works of Art, Venice, 29 March-2 April 1976.

3 Resolution 417.6/5 (1978).

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4. The committee met for the first time in 1981 and its eighth session willtake place at UNESCO Headquarters in Paris from 24-27 May 1994.

In view of the vigour of the debate in the United Nations GeneralAssembly in the context of decolonization, it is astonishing that none ofthe claims so far received have emerged from this context. There havebeen six claims: Greece against the United Kingdom (the Parthenon"Elgin" marbles); two by Turkey against the Democratic Republic ofGermany (cuneiform tablets and a sphinx from Boguskoy); Jordanagainst the United States (half of a Nabbatean sculptured panel); Iranagainst Belgium (antiquities from the Necropolis of Khorvin) andEcuador against Italy (hundreds of pre-Columbian artifacts). Two arestill outstanding (the Parthenon marbles; the sphinx); two were litigatedin the state of location (Italy, where Ecuador's claims succeeded andBelgium, where Iran's claim is still in litigation) and two were settled(Jordan, Turkey). Iraq sought to make a claim but the papers had to bereturned because the state concerned was no longer a member of thecommittee. Although certain other cases have been brought to theattention of the committee, it has not been asked to intervene, or hasbeen unable to (e.g. because the state of location was not a member ofUNESCO or because the location was not known).

All of these cases concerned antiquities. None of them concerned thereturn to an indigenous people, as "indigenous people" is currentlyunderstood, although the claim of Ecuador probably is closest to it (thepre-Columbian artifacts concerned had been collected over a period oftwenty years from various sources).

All of the twelve states sponsoring the first UNGA Resolution wereAfrican, but not one African state has ever brought a case to thecommittee. Zambia has expressed its interest in the return of the BrokenHill skull from the United Kingdom, but as the United Kingdom is nolonger a member of UNESCO, the committee is not able to accept aclaim. Although the absence of the United Kingdom from the scheme isa defect for many states who have cultural property of importance inthat country (Nigeria's wish for the return of the Benin bronzes is wellknown and Myanmar has expressly desired the return of statues of itskings and queens), there are other UNESCO member museums inEurope with important holdings of indigenous material.

IV. THE CONVENTION ON THE MEANS OF PROHIBITINGAND PREVENTING THE ILLICIT IMPORT, EXPORT ANDTRANSFER OF OWNERSHIP OF CULTURAL PROPERTY

In 1964 the UNESCO General Conference adopted the Recommenda-tion on the Means of Prohibiting and Preventing the Illicit Export,

REPATRIATION OF CULTURAL PROPERTY

Import and Transfer of Ownership of Cultural Property 1964. It hasalways been clear, however, that the problem of illicit traffic could notbe solved without international collaboration. In 1970 the GeneralConference adopted the Convention on the Means of Prohibiting andPreventing the Illicit Import, Export and Transfer of Ownership of CulturalProperty. There are currently 81 parties to this Convention (Appendix 5).This Convention is not retrospective; it does not therefore apply tomany of the materials for which repatriation is being sought. It is,however, an important mechanism for the return of goods in recentillicit trade. Canada has returned a number of objects to Latin Americancountries, although a prosecution concerning an object from Nigeriafailed when evidence was not provided by Nigeria as to the illegality ofthe original export. The United States is also party to the Conventionand has used import controls on cultural property from a number ofcountries, mainly in Latin America, although a similar ban has nowbeen imposed in respect of antiquities from Mali.

Unfortunately most of the important market states are not party tothe Convention. Dealers in the United Kingdom have established aCode of Practice (Appendix 6) consistent with its principles, but thisdoes not, of course, entail return of the objects that they agree not tohandle. Switzerland is actively considering accession.

V. OTHER CURRENT DEVELOPMENTS

The twelve members of the European Union are now bound by theEuropean Directive and Regulation on the Return of Cultural Propertywithin that area. This has led to a rethinking of previously rigid attitudeson this subject of return.

European States have also all been present at the negotiation for aUNIDROIT Draft Convention on Stolen or Illegally Exported Cul-tural Objects (Appendix 7). This has yet to be considered and adoptedby a fill diplomatic conference (probably early in 1995). This instru-ment also, if adopted, will provide a substantial means of repatriation forobjects taken after it comes into force. Although some states would haveliked the text to be retrospective, others made it quite clear that theywere not prepared to contemplate an instrument which would apply toobjects that had already been expatriated.

The most substantial advance in this text is the strict limitation of theprotection of the so-called bonafide purchaser, a legal mechanism thathas facilitated the transit of illegally acquired objects without remedy tothe aggrieved individual or state, by the simple process of asking noquestions.

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Finally, the fifty-one states of the Commonwealth have adopted, atMauritius in November 1993, a scheme for the return of culturalproperty among themselves. Great Britain expressed some reservationsabout its application in a press release at the time of its adoption. Itremains to be seen whether that country fully implements it and at whatstage. This scheme also is not retrospective, but it would certainly assiststates like New Zealand, which failed to have important Maori carvingsreturned after litigating as far as the House of Lords in I983.'

VI. THE PROTOCOL TO THE CONVENTION FOR THEPROTECTION OF CULTURAL PROPERTY IN THE EVENTOF ARMED CONFLICT (THE HAGUE CONVENTION)1954

Another important but neglected mechanism for the return of culturalobjects to their countries of origin is the Protocol to the Convention forthe Protection of Cultural Property in the Event of Armed Conflict (theHague Convention) 1954. Eighty-five states are party to the Conventionand seventy-one to the Protocol (Appendix 5).

The Nazi pillaging of Europe during World War II persuaded theAllied governments to put purchasers on notice, by issuing the Declara-tion of London of 1943, that they would not be able to retain such goods:

The Governments of the Union of South Africa; the United States ofAmerica; Australia; Belgium; Canada; China; the Czechoslovak Republic;the United Kingdom of Great Britain and Northern Ireland; Greece;India; Luxembourg; the Netherlands; New Zealand; Norway; Poland; theUnion of Soviet Socialist Republics; Yugoslavia; and the French NationalCommittee:

Hereby issue a formal warning to all concerned, and in particular to personsin neutral countries, that they intend to do their utmost to defeat themethods of dispossession practised by the Governments with which they areat war against the countries and peoples who have been so wantonlyassaulted and despoiled.

Accordingly, the governments making this Declaration and the FrenchNational Committee reserve all their rights to declare invalid any transfersof, or dealings with, property, rights and interests of any descriptionwhatsoever which are, or have been, situated in the territories which havecome under the occupation or control, direct or indirect, of the governmentswith which they are at war, or which belong, or have belonged, to persons(including juridical persons) resident in such territories. This warning

4 Attorney-General ofNew Zealand v. Ortiz [1982], I Q.B. 349; [1982] 3 W.L.R. 571 (C.A.); [1983]2 W.L.R. 8o9 (H.L.).

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applies whether such transfers or dealings have taken the form of openlooting or plunder, or of transactions apparently legal in form, even whenthey purport to be voluntarily effected.The Governments making this Declaration and the French National Com-mittee solemnly record their solidarity in this matter.

This Declaration was implemented by legislation in the zones ofoccupation of Germany, by the new federal German Republic itselfwhen it was established and by legislation in the neutral states ofPortugal, Sweden and Switzerland. No limitation of claims was ex-pressed in the Declaration and an American writer commented that therecovery programme of the United States (and the international ar-rangements for its implementation):

provides for an appropriate continuation of the cultural restitution pro-grams. For the first time in history, restitution may be expected to continuefor as long as works of art known to have been plundered during a warcontinue to be rediscovered. 5

This comment is an interesting one in view of the plethora ofdemands now emerging for the repatriation of objects displaced duringWorld War II that date from before the adoption of the Hague Conven-tion and its Protocol.6 In the United Kingdom about four years ago, theNetherlands government claimed a painting, part of a collection whichhad found its way into Goering's collection and had disappeared afterthe war. It arrived for sale in London and a court returned it to theNetherlands government. A similar case in the United States was settledabout the same time.

Article 4(3) of the 1954 Convention reads:

The High Contracting Parties further undertake to prohibit, prevent and, ifnecessary, put a stop to any form of theft, pillage or misappropriation of, andany acts of vandalism directed against, cultural property. They shall refrainfrom requisitioning movable cultural property situated in the territory ofanother High Contracting Party.Each High Contracting Party undertakes to prevent the exportation, from aterritory occupied by it during an armed conflict, of cultural property....

5 Hall, A. R. "The Recovery of Cultural Objects Dispersed During World War II" (95i)Department of State Bulletin (United States) 337 at 339.

6 For a more detailed study of the Protocol see article by this author, "The Protocol to theConvention for the Protection of Cultural Property in the Event of Armed Conflict (The HagueConvention) 1954" invited paper 6 Humanitidres Volkerrecht (Deutsches Rotes Kreuz/Universityof Bochum, 1993) 191-94. A detailed commentary on the Protocol will appear as one section of ageneral work on the Convention: J. Toman, Commentaire sur la Convention de la Haye pour laProtection des Biens culturels en cas de Conflit arm ( Paris: UNESCO, in press). An Englishversion is being prepared by UNESCO for publication in early 1995.

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This article provides an active duty to prevent removal from theoccupied territory. It does not, however, specify how this is to be done.In the Convention on the Means of Prohibiting and Preventing the IllicitImport, Export and Transfer of Ownership of Cultural Property 1970,contracting parties are obliged to impose export controls (Art. 6) andimport controls (Art. 7 (b)). While this Convention is basically con-cerned with movement in peace time, Article i I of that Convention alsoprovides that export and transfer of ownership of cultural propertyunder compulsion arising directly or indirectly from the occupation of acountry by a foreign power is to be regarded as illicit.

Article 2 of the Protocol to the Hague Convention requires each stateparty:

to take into its custody cultural property imported into its territory eitherdirectly or indirectly from any occupied territory. This shall either beeffected automatically upon the importation of the property or, failing this,at the request of the authorities of that territory.

Only one case is known where an occupying state prosecuted forillegal export consistent with this article. 7

It is clear that illegally taken objects from occupied territories enterthe international market. While it is true that two of the big "art market"states, the United Kingdom and the United States, are not party tothe Protocol, what about Germany and Switzerland, which are? In thecase of Germany, allegations have been made about the smuggling ofCypriot antiquities from Northern Cyprus, an area occupied by Tur-key (the so-called Turkish Republic of Cyprus not being recognized).Switzerland was the known point of transfer (in the bond area of Genevaairport) of the Kanakaria mosaics stolen from a church in NorthernCyprus and subsequently returned after litigation in the United States.'Objects from the museum of Vukovar were taken to Paris, but with-drawn from exhibition and returned to Yugoslavia. Had Croatia offi-cially invoked the help of the French authorities, it is difficult to see howthey could have refused to seize the objects in compliance with theobligation under this article.

The Protocol also provides (Art. 3) that each party should return, atthe close of hostilities, to the competent authorities of the territory

7 In 1970, two antiquity dealers in EastJerusalem were prosecuted under the Jordanian AntiquitiesLaw No. 55 of 1966, which remained in force in Judaea and Samaria, with exporting antiquitiesinto "foreign territory" (i.e. from Hebron, in Judaea, to East Jerusalem) without obtaining anexport licence. S. Berman, "Antiquities in Israel in a Maze of Controversy" (1987) 19 CaseWestern Reserve J. Int'l L. 343 at 356.

8 Autocephalous Greek-Orthodox Church of Cyprus andthe Republic of Cyprus v. Goldberg &FeldmanFine Arts, Inc. 717 F. Supp. 1374 (1989), aff'd 917 F.zd Z78.

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previously occupied, cultural property which is in its territory, if suchproperty has been exported in contravention of these principles.

This case has arisen. Both Iraq (since 1967) and Kuwait (since 1970)are parties to the Protocol. The removal of large amounts of culturalproperty, including almost the entire contents of the Kuwait NationalMuseum, to Baghdad is one of the better known incidents of the Gulfconflict. The return of this material took place not by virtue of theProtocol, which was in fact barely mentioned, but according to Resolu-tion 666 (I99I) of the Security Council concerning the return ofproperty to Kuwait, which also included cultural property. Under thesupervision of the United Nations Return of Property Unit (UNROP),property was handed over in Baghdad to representatives of Kuwait inSeptember and October 1991. However Kuwait has since stated that notall the missing property has been returned. In so far as any remains in thehands of the Iraqi authorities, there is still a duty under the Protocol toreturn it.

After the conflict, Iraq made known that thousands of objects hadbeen stolen from its provincial museums during the period of themilitary intervention and its immediate aftermath. Four volumes listingthis catalogued material have been drawn up by the Iraqi authorities anddeposited with UNESCO. Should any of this material be identified inthe international market, states party to the Protocol will have the legalobligation to ensure that their obligations under the Protocol are notinfringed.

Toman notes that a proposal to place a zo year limitation on claimsunder this Article was rejected at the Conference which adopted it.9

Therefore claims under Article 3 are not prescribed in time.Article 4 of the Protocol is a new development from the earlier

codifications, putting a duty on states that have failed to prevent illicitexportation to pay an indemnity to the holders in good faith of culturalproperty which has to be returned. No case seems to have arisen wherethis article has been invoked. Its origin clearly lies in the Declaration ofLondon and the implementing legislation in Switzerland. While theimplementing rules in the three zones of occupation of the French,British and United States forces provided for the return of culturalproperty, overriding "the interest of other persons who had no knowl-edge of the wrongful taking,""t the Swiss legislation (adopted undersome pressure from the Allies) provided that a good faith possessor had aright to be repaid the purchase price from the person from whom it was

9 Study cited supra note x, commentary on Protocol, Art. 3.

10 Law No. 59 Restitution of Identifiable Property (United States zone of occupation) s. 3.75(2).

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acquired. However where a transferor in bad faith was insolvent or couldnot be sued in Switzerland, the judge could allow the good faith acquirerwho had suffered damage "an equitable recompense at the cost of theconfederation."1 1 The Swiss government was held liable by the SwissBooty Chamber, which stated that compensation must, not could, beawarded. The decree was repealed after two years.12 However, in becom-ing party to the Protocol, Switzerland and the other parties have agreedto provide compensation in these circumstances.

The Hague Convention applies to conflicts "not of an internationalcharacter" (Art. i9). Although this phrase is not expressed in theProtocol, it should be considered that the Protocol also applies to suchconflicts. This is relevant to situations like that present in Afghanistan,where cultural property is being looted from museums and sites duringfaction fighting.

In cases, therefore, where cultural material is taken during times ofconflict, there may be a procedure open for its repatriation under theProtocol to the Hague Convention. It has to be noted, however, thatthis, like the other legal instruments mentioned, applies prospectively.European states cannot, therefore, argue on the basis of the Protocol forthe return of cultural objects which have been taken in conflicts longpast, except on the basis of other instruments. Their remedy, and thoseof other countries, continues to be through bilateral negotiations or theIntergovernmental Committee for Promoting the Return of CulturalProperty to its Countries of Origin or its Restitution in case of IllicitAppropriation.

However where a holding state is a party to any of the instrumentsdescribed above, a claimant state or people can seek to argue that theespousal of the principles of that instrument or instruments should beextended to prior claims which have the same moral and cultural forceeven if not covered by the existing legal instruments.

VII. CONCLUSION

In processing claims for repatriation at the international level, there is, Ibelieve, a preferred way to proceed. Such issues are often highly emotiveand the process is not necessarily assisted by high-profile activity andsensational press coverage. The first effort should be from museum to

11 Decree of 1o December 1945 concerning actions for the recovery of goods taken in occupiedterritories during the war ("Booty Decree") (Switzerland).

12 For an extensive discussion of the Declaration of London, the position of the neutral countries(Sweden, Switzerland and Portugal) and the aftermath, see L. V. Prott, & P. J. O'Keefe, Lawand the Cultural Heritage, vol. III; Movement (London: Butterworths, 1989) 8o5-is.

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museum (or group or unit or institution as appropriate). Many mu-seums have anthropologists on staffwho are sympathetic to the claims ofmembers of other cultures and respectful of their needs. They may havesome work in persuading their colleagues. But if this process succeeds ithas long-term benefits because all the relevant museum staff will besensitized to the issue for the future.

If this approach does not work, then the next step can be takengovernment to government. Again, quiet bilateral negotiations out ofthe public eye may be advisable. Bilateral avenues of solution have to beexhausted before the UNESCO Committee has competence to act.

Once the case is brought to the Committee it is inevitably public andall sorts of issues other than purely cultural come to the fore. The publicdiscussion of the Parthenon marbles gives an illustration of this.

In respect of indigenous peoples, the mechanisms existing at presentin international law have not been exploited. Although several claimshave international dimensions, e.g. the claim by Australian Aboriginalsfor the return of skeletal material from institutions in Europe, theUNESCO Intergovernmental Committee, which is the only body witha mandate to deal with claims for cultural objects taken during theeighteenth and nineteenth centuries of colonial expansion and Euro-pean settlement overseas, has not been asked to act. It remains to be seenwhether this body will be an important mechanism or whether changingattitudes in holding countries will enable materials to be repatriatedwithout the need to invoke its help.

Postscript

The first day's proceedings included some powerful statements byindigenous people about repatriation that had implications for theapplication of law, specifically the law of colonizing peoples to overridethat of the indigenous communities whose land they took. PeminaYellowbird described Native Americans as the survivors of a holocaust.Lorrie Richardson pointed out that the radical decision of the AustralianHigh Court in Mabo v. Queensland, which undid 200 years of importedland law in Australia to recognize indigenous rights of title, changednothing for the Meriem people, who had always known that the landwas theirs.

As a lawyer, I feel bound to say that the present European style legalsystem was basically set up to ensure fairness and to deal with conflict ina dynamic and disorderly society. It did so by way of rules, because ingeneral, those societies did not have the conflict resolution skills thatmost traditional communities possess: these are skills that Westerners

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are having to learn. So law has had a very positive role for those societiesfor which it is the principle dispute-resolving mechanism.

But where this positive role went wrong was the failure of those usingthis system to recognize other, different, systems of social control withwhich they came into contact, thereby committing a historic and tragicinjustice. The importance of the Mabo decision is not, I think, for theindigenous communities in Australia (although they may derive quitepractical benefits from it) but for the immigrant white population, thedescendants or beneficiaries of the perpetrators of the holocaust ofwhich Pemina Yellowbird spoke. To me, a white Australian, it isenormously important that the highest court in the land has had thehumility to admit the savagery and the injustice of the dispossession ofthe indigenous population of Australia by the colonizers, because untilthat admission is made, reconciliation cannot begin.

This decision empowers beneficiaries of those imported rules of lawat last to develop them in such a way as to take account of, withoutreplacing, the equally legitimate social systems of the descendants of theindigenous peoples who have been deprived of their birthright, and todevelop a law which, at last, can be seen as relevant to all Australians.

Law has a place in discussions of repatriation. It can provide meansand techniques for resolving disputes left over from the days of coloniza-tion and their aftermath. It can make a potent statement of principle:law, in a Western style society, is itself a very powerful moral argument.If the law has in the past been used to block arguments based on adifferent morality and a different social structure, it can now be used torecognize and enforce them. Lawyers in this question are not techni-cians; they should not be unthinkingly applying an outmoded moralitywhich has been crystallized in law, but should be examining the funda-mental principles of that law in order to correct historic and present dayinjustice.