(Note: I wrote the bulk of the below last week when it was more timely. Lord knows why I'm posting it, as it's overwrought and offers nothing but trouble, but here goes.)
No one, I'm sure, was surprised to see that the Boston MFA's deputy director's unfortunate remarks in an article on the museum's lawsuit to establish its legal title to Oskar Kokoschka's painting Two Nudes brought forth some criticism. No doubt the museum's representatives will tread more carefully in the future, even as they continue to press their case. The linked critical remarks from a Rabbi, after all, remain rather measured, acknowledging that "there well may be legal merit to both sides of the argument." The real test for the museum in the court of public opinion--and who knows? perhaps the courts of law--can be seen in the ideas and attitudes displayed in two letters to the Globe posted by Geoff Edgers last Wednesday.
The first is from someone apparently reacting in accordance with a felt moral imperative, while the second comes from a lawyer who seems to have read a bit regarding provenance issues. Both, it seems to me, make mistaken arguments and inapt analogies between this current dispute and other provenance/cultural heritage issues.
The moral claim, at one level so profound as to be undeniable--the family concerned, as well as so many others, having suffered terribly at the hands of the Nazis--nevertheless fails to come to a precise point. The letter writer rejects the MFA's claims with the dismissal that "Anyone with passing familiarity with anti-Semitism in Europe knows that
Hitler's homeland was the center of virulent hatred of the Jews and had
cultivated a tradition of institutionalized discrimination long before
Hitler, an Austrian, continued the process." All true, but nothing about that shows how the sale of a painting to a Jewish dealer, a painting not confiscated or even acquired by the Nazis, not placed in an auction against the owner's will, one that was successfully taken by the dealer to Paris (as early as 1939, according to the painting's provenance) where he sold it post-war, qualifies as a coerced forfeiture of property. I'd also note that the dealer, Otto Kallir, does not seem to appear in the OSS Art Looting Investigative Unit's Biographical Index of Individuals Involved in Art Looting, which lists virtually everyone interrogated, investigated, or even mentioned during the preparation of the ALIU's reports--contemporary evidence that Kallir was not someone suspected of dealings with the Nazis. I only know the details of the case that have been reported in the Globe, but from what I've seen, there's no reason not to suppose that the sale of the painting wasn't an effort to take advantage of an asset's liquidity during a time when cash looked like a more useful possession. That's a decision many people had to make, and restitution of the sold property should not be mandated.
The writer's second complaint--that the MFA has returned works to Italy but resists giving this painting to the seller's heirs--also seems without merit. Italy produced compelling evidence that the artworks involved had not been properly obtained and the MFA returned the disputed works in the framework of agreement for future cooperation and sharing of long-term loans. In the face of an what seems an unwarranted claim, there should be no reason for the museum to give up its legally acquired property; and the writer's suggestion of a sharing arrangement extending even beyond sale of the painting if returned is simply naïve.
The letter from the lawyer quibbles about some statements not pressing directly upon the MFA's case, fulminates against museums who sought to buy works on the Swiss market during the war even though this painting was bought by a private citizen in France in 1945, and ends on a charge, also edged up to by the first writer, of Holocaust denial on the museum's part. Of course, it was just a little less than two years ago that the MFA was the subject of an admiring article in The Jewish Advocate for its leadership in Nazi-era property restitution issues, so it's hard to say when exactly this new regime of anti-Semitic revisionism came into place at the museum. Perhaps, after all, it didn't, and the ugly charges of denial are unfounded.
To return to the first letter, at one moment the writer insists that "This sort of thing begs for more than lawyerly definitions." That may be true, but ultimately what both letters fail to appreciate is that in the absence of lawyerly definitions, claims of this kind become incoherent. While I'm not a lawyer, I strongly believe that a definition of "forced sales" or "property subject to restitution claims" that would include this painting would, on the basis of the reported information, be ones that expanded the range of claims not only to include those from Jewish families who undoubtedly suffered but a vast number of parties of much more limited, even perhaps dubious, sympathy. The desire to overcome lawyerly definitions undoubtedly stems from outrage at past injustice and feeling for its victims: nothing, after all, will ever truly make the victims of the Holocaust whole, so let us try to give them something back, the reasoning seems to go, regardless of the exact details. It's also the case that this claim arrives at a time when sympathy for museums lies at a certain low. Taking works from museum collections on these grounds, however, would not be consistent with the public interest or even, ultimately, true justice. In the interests of accountability and history, I would personally think it appropriate for the MFA to acknowledge in some way the painting's past, the context of its ownership before the 1939 sale, and otherwise make plain the record and pay some tribute to the former owner (I should say, make plainer: the painting's provenance history is included in the museum's online database. I'm thinking more of something like a discussion of its history as part of a wall label or the like, which for all I know the museum is already doing.) But on the basis of present reports, I can see no reason for it to give the painting up. The two letters, predictable as they may be in their vehemence, seem to me simply wrong on the merits.
To a Jar of Massic Wine