With apologies to David Lowenthal, the past is not a foreign country. It is,
however, a complex multi-dimensional commons where the principle of
enclosure demands closer scrutiny (see Garrett Hardin, "The Tragedy of the
Commons," 1968). Writing on the economics of radio regulation, Ronald Coase
introduced the social costs paradigm in his seminal 1959 article ("The
Federal Communications Commission"). The issue pitting archaeologists (and
other heritage professionals) against others who have staked claims to the
material and intangible elements (knowledge) of past cultures is one of
social costs: who is harmed and who gains by the collection of
archaeological data by the various stakeholders. The burden is on
archaeologists to show that theirs is the action worth investing in and
which causes the least harm. Quoting from Coase's 1959 article in the
Journal of Law and Economics:
"Whether a newly discovered cave belongs to the man who discovered it, the
man on whose land the entrance to the cave is located, or the man who owns
the surface under which the cave is situated is no doubt dependent on the
law of property. But the law merely determines the person with whom it is
necessary to make a contract to obtain the use of the cave. Whether the cave
is used for storing bank records, as a natural gas reservoir, or for growing
mushrooms depends, not on the law of property, but on whether the bank, the
natural gas corporation, or the mushroom concern will pay the most in order
to be able to use the cave. One of the purposes of the legal system is to
establish that clear delimitation of rights on the basis of which the
transfer and recombination of rights can take place through the market...
"The advantage of establishing exclusive rights to use a resource when that
use does not harm others (apart from the fact that they are excluded from
using it) is easily understood. However, the case appears to be different
when it concerns an action which harms others directly...
"Let us start our analysis of this situation by considering the case of
Sturges v. Bridgman which illustrates the basic issues. A confectioner had
used certain premises for his business for a great many years. When a doctor
came and occupied a neighboring property, the working of the confectioner's
machinery caused the doctor no harm until, some eight years later, he built
a consulting room at the end of his garden, right against the confectioner's
premises. Then it was found that noise and vibrations caused by the
machinery disturbed the doctor in his work. The doctor then brought an
action and succeeded in securing an injunction preventing the confectioner
from using his machinery. What the courts had, in fact, to decide was
whether the doctor had the right to impose additional costs on the
confectioner through compelling him to install new machinery, or move to a
new location, or whether the confectioner had the right to impose additional
costs on the doctor through compelling him to do his consulting somewhere
else on his premises or at another location. What this example shows is that
there is no analytical difference between the right to use a resource
without direct harm to others and the right to conduct operations in such a
way as to produce direct harm to others. In each case something is denied to
others: in one case, use of a resource; in the other, use of a mode of
operation. This example also brings out the reciprocal nature of the
relationship which tends to be ignored by economists who, following Pigou,
approach the problem in terms of a difference between private and social
products but fail to make clear that the suppression of the harm which A
inflicts on B inevitably inflicts harm on A. The problem is to avoid the
more serious harm." (Coase 1959: 25-26).
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