The Verdict on Advertisements for Near Eastern Antiquities—Dubitante

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Supreme Court Justices are paid to decide difficult cases. In 1951, however, Justice Felix Frankfurter heard a case he couldn’t decide.^a His brethren voted to affirm the decision of the court below. But Justice Frankfurter couldn’t make up his mind. So he took the unusual—perhaps unique—step of filing an opinion neither affirming nor reversing, but dubitante, in doubt.

Editors are supposed to have opinions. That’s what they editorialize about. And BAR’s editor is certainly not shy about expressing his opinions—forcefully and unequivocally. But on the subject about which I write now, I must file dubitante. Perhaps some readers will come to my aid.

The subject is antiquities advertisements. Should BAR accept ads from dealers in authentic, original Near Eastern antiquities?

Several years ago, the appearance in BAR of a few small advertisements for antiquities produced a number of vociferous complaints. From the beginning, I found the merits of the case difficult to understand, so I decided that, for the time being, BAR would discontinue accepting such ads for publication until I could sort out the matter in my own mind and come to a final decision.

Since then, I have struggled with the question but made little progress toward a definitive decision. Several issues ago we received an ad for placement on the back cover from a dealer offering museum-quality antiquities. This time, I decided tentatively, but still with doubts, that we would accept such ads—again—until I could come to a clear, adequately thought-out policy decision.

The ad I accepted has appeared twice in previous issues. It will not appear again. Neither will other ads for antiquities.

I was on a conference call with a panel of three judges who were choosing the winning entry in one category of BAR’s 1984 Publication Awards. After the happy choice had been made, one of the judges said to me, “Hershel, I see you have accepted an antiquities ad again. If that is going to be your policy, I will never serve as a judge again, and I will have nothing more to do with BAR or you.” I was not surprised at his position, but I was surprised at the vehemence with which he expressed it. We discussed the matter without shedding much light on the subject. The other two judges had remained silent. I then addressed them—all three were good friends of mine. Do you agree with X? I asked the other two judges. They did not have the same fire in their voices, but they said yes, they agreed with him that BAR should not accept antiquities ads.

Their argument was simple: Antiquities ads encourage collecting antiquities, which in turn encourages trade in illegally excavated antiquities; this in turn encourages plunderers who destroy sites by digging illegally in search of artifacts to sell on the antiquities market. Artifacts exposed this way lose much, if not all, of their scientific value.

They had another argument: No other archaeology magazine accepts antiquities ads. Even Natural History, published by the American Museum of Natural History—not strictly an archaeology magazine—rejects antiquities ads. (The editor of Natural History recently apologized profusely for allowing one such ad to slip by.)

In view of the near consensus among scholars that antiquities ads should not be accepted and without a clear conviction of my own to the contrary, I have decided to succumb to this consensus and to adopt a policy of rejecting ads for original antiquities.

But I still have doubts. I want to share my doubts with BAR’s readers.

We can all agree, of course, that archaeological excavations should be undertaken pursuant to regulations of the host country, and only by trained, licensed professionals. Everyone also agrees that illegal excavations destroy sites and severely diminish the scientific value of any finds, that illegal excavations should be stopped, and that when they do occur, the illegal excavators should be punished. This much is easy.

The problem is how to achieve these common aims 069and whether refusing antiquities ads is a meaningful step in that direction.

Of one thing, I am sure: the situation—and the problem—of illegal excavations in Israel, Jordan and probably elsewhere in the Near East is much different from, say, the problems at major sites in Mexico and Central America. There, jungle marauders are plundering on a grand scale, utterly destroying sites, taking out huge, priceless artifacts. The public discussion of illegal trade in antiquities almost always focuses on pre-Columbian or Southeast Asian sites. Indeed, I have not been able to find a single study of the situation in Israel or Jordan. Illegal digging surely goes on in Israel and Jordan, but mostly by unsophisticated villagers and Bedouin. The sad fact is, however, that no one has really studied the current situation in this part of the world and what can be done about it.

What are the dimensions of the problem in Israel, Jordan and elsewhere in the Near East? How widespread is illegal digging? Who is doing it? How can it be effectively controlled? What laws should regulate trade in antiquities in Israel and Jordan? Should the collecting of antiquities be regulated? Or prohibited?

It is easy enough to stand on one’s hind legs and proclaim, “We will not accept antiquities ads.” But there is something terribly self-righteous about this. “We are pure.” This avoids the problem rather than faces it. We should not ask whether this refusal is really an effective response to the problem. Is refusing antiquities ads a meaningful way to control—or even to discourage—illegal digging?

Antiquities dealers operate legally in Israel, Jordan and in this country. They offer their wares openly and even with certificates of authenticity. The wares they sell may be legally sold and owned. Museums, serious collectors and even archaeologists buy from dealers, although few archaeologists are collectors.

There is no consensus on how to effectively control illegal digging. Some countries, like Turkey, have extraordinarily strict laws, while others are lax. So far, nothing has seemed to work. The Turkish solution has certainly not proved effective.

The former head of the Israel Museum’s laboratories, Rafi Braun, is now a leading Jerusalem antiquities dealer. Braun claims that it is impossible to stop illegal digging. According to him, the better antiquities dealers in Israel perform a service by advising the government of unusual pieces that come on the market and by directing these pieces to museums.

Some people even give credit to the illegal diggers because without them, some spectacular artifacts might never be discovered. These people do not speak of the Dead Sea Scrolls, because the Bedouin who found the scrolls were not looking for antiquities; they discovered the scrolls accidentally.^b But now that the Bedouin know that scrolls are valuable, they scour every cave and cranny in the hope of finding a scroll. Sometimes they are successful. Cave 4 contained approximately 40,000 fragments of about 400 Dead Sea Scrolls found by Bedouin who were looking for them. The famous Wadi Daliyeh papyri, three centuries older than the Dead Sea Scrolls, were found in this way.^c Of course it would be better if these materials were excavated scientifically. But that does not seem to be an alternative.

Consider the spectacular anthropoid sarcophagi from Deir el-Balah. Villagers near Gaza discovered the first of these sarcophagi while reclaiming land for an orange grove.^d In an ideal world, the villagers would immediately have called the Department of Antiquities, who would have sent a team of archaeologists to excavate. In the real world, however, the villagers illegally excavated about 50 of the sarcophagi and the contents of the graves and sold them on the antiquities market. When these artifacts appeared on the antiquities market, archaeologists traced them back to Deir el-Balah. Ironically enough, the archaeologists excavated only four sarcophagi, although many more are probably still there.

At this point, I will make a confession from my own past, long before I became sensitized to the problem. My wife and two daughters and I were picnicking at Tell en-Nasbeh, ancient Mizpeh, after having examined the site. A villager approached us. He spoke no English, and we spoke no Arabic. He opened his mouth and put his index finger on one of his teeth. I didn’t understand. Did he have a toothache and want some help? It turned out he was pointing to a gold-capped tooth; he wanted to sell us gold. Then he pulled out of his wallet a packet of brown wrapping paper containing some Roman earrings. I easily negotiated a purchase, and we were all delighted. I took the earrings to a well-known Jerusalem antiquities dealer who had been involved in the original purchase of the Dead Sea Scrolls. He added some ancient beads of Egyptian carnelian to the Roman gold loops and made them into a stunning pair of earrings.

As I think back on this episode, I ask myself whether I 070should have bought these earrings. The answer seems to me still to be yes. But I should then have taken them to the Department of Antiquities. I wonder what would have happened at that point?

Several years later—and this brings me to the real point of my story—I decided that I would like to buy some ancient Roman earrings for each of my daughters. (Obviously, I was still ignorant of the problem of illegal excavations.) I mentioned this to a scholar-friend at an impoverished research institution in Israel. (Almost all such institutions are impoverished.) He had excellent contacts with the Bedouin and said he welcomed the opportunity to help me. Not that he wanted only to do me a good turn—although he did—but this purchase would help him keep up his contacts with the Bedouin. The Bedouin regularly brought him their finds. If their finds were significant, he would ask to keep them overnight, photograph them, study them, return them the next day and then publish the photographs and results of his study in scientific journals. If he failed even occasionally to buy from the Bedouin, they would stop bringing their finds to him, and the artifacts would be completely lost to the scientific world. So, for this reason, he was glad to buy from the Bedouin two pairs of gold Roman earrings for my daughters.

All this is to say that the problem is far more complicated than it may seem at first blush—especially when we add to this brew the fact that our museums are filled with Near Eastern antiquities that were plundered on a large scale in the past. These antiquities have now passed through dozens of hands, and a brisk trade in them continues. What should be done about these pieces?

The New York Times recently published an article encouraging tourists in Israel to buy ancient pots or oil lamps as mementos—even giving the names and addresses of the shops where they can be purchased.

You may say, so what if others contribute to the problem? BAR shouldn’t contribute, even in a small way.

Perhaps that’s right. But somehow it smacks of sticking one’s head in the sand. Isn’t there something more meaningful that can be said or done?

Should Time magazine discontinue accepting cigarette ads when the law requires only a warning that cigarettes are dangerous to your health? Or should BAR accept antiquities ads if they contain a warning that some of the objects may have been illegally excavated?

Nothing I have ever written for BAR has been written with more uncertainty than this piece. If I have erred, at least I hope I will have opened up a discussion. I look forward to hearing from you.

Supreme Court Justices are paid to decide difficult cases. In 1951, however, Justice Felix Frankfurter heard a case he couldn’t decide.a His brethren voted to affirm the decision of the court below. But Justice Frankfurter couldn’t make up his mind. So he took the unusual—perhaps unique—step of filing an opinion neither affirming nor reversing, but dubitante, in doubt. Editors are supposed to have opinions. That’s what they editorialize about. And BAR’s editor is certainly not shy about expressing his opinions—forcefully and unequivocally. But on the subject about which I write now, I must file dubitante. Perhaps some readers will […]