The principle of legal certainty may seem as self-evident as it is overestimated. Taken for an absolute value or falling prey to special interests, this ideal may turn into a recipe for injustice. Legal certainty is only a good thing when the law itself is appropriate and just. There is no reason for holding on to an illegitimate law simply because it has once been posited, as some legal positivists might imply. These days, a debate about the works of art formerly belonging to Jewish refugees in Switzerland illustrates the tensions that an unquestioned ideal of legal certainty may create.
This topic first came up last winter, when the Kunstmuseum Bern accepted a heavily burdened inheritance. The well-known museum in the Swiss capital had been designated as his only heir by Cornelius Gurlitt, who passed away in May 2014. This withdrawn man was the son of Hildebrand Gurlitt, a controversial art collector who, during the time of the Third Reich, had been employed by the Nazi Commission for the Exploitation of Degenerate Art to market confiscated and stolen works of art abroad. His own superb collection – some 1280 objects, mostly paintings – was rediscovered and seized for concealment from the tax authorities at his son’s apartment in Munich in 2012.
It turned out that it was not clear whether all these pieces had been in Gurlitt’s property legitimately or whether the former owners or their heirs could still claim a right to restitution. A vast investigation into the provenance of the works was therefore launched according to the terms of the “Declaration of Berlin”, dating from 1999. In Germany, restitution is thus mandatory not only for those objects that were actively stolen by the Nazis. It is also due for those pieces that eventually made it abroad, together with their legitimate, mostly Jewish owners, who then sold them in order to obtain urgently needed funds for daily life or for an onward journey in search of safety. By German law, both types of “lost art” must be given back. It does not matter whether the collector currently in possession of a specific piece, a private person or a public museum, once bought it in good faith or not.
In the Gurlitt case, the Kunstmuseum Bern adopted the German regulation – and that was an easy thing to do, since it is the German taxpayer pays for the provenance research. But now the more general and most unwelcome question was on the table, too: Wouldn’t it make sense for the other Swiss museums as well to check the exact backgrounds of their works of art that once belonged to persecuted Jews and other German refugees? Wasn’t it time to make sure that there were no unsatisfied legitimate claims? After all, Switzerland played a role in the lost art drama, too. Many pieces were sold in Switzerland, where the art scene boomed and galleries flourished during the Third Reich like never before. Many museums could embellish their stocks considerably.
To be sure, that the Swiss were on the bright side of those tragic events doesn’t necessarily prove their immorality. Quite to the contrary, it is a well-known fact that many galleries were owned and operated by Jewish art experts who helped their refugee friends from Germany by organizing exhibitions in Switzerland and never sending back the lent pieces, thus saving them from destruction or theft and sale by the Nazis. And it is true that many refugees from Germany sold their art in Switzerland “upon their very own decision”, as the Kunsthaus Zurich points out referring to a specific Van Gogh painting in their stock, formerly belonging to the famous actress Tilla Durieux. The cynicism in this remark however is obvious. As the former owners were in need and in a hurry, the art often sold of course at much less than its true market value. Durieux, for example, married to a Jewish businessman, sold her painting during the time of their limited permit for Switzerland, in order to rapidly raise the cash needed for travelling onward. Their desparate journey ended in Croatia, where Durieux’ husband, Ludwig Katzenellenbogen, was arrested. He died in a German concentration camp.
Unlike the Kunstmuseum Bern, the Kunsthaus Zurich cannot count on the German taxpayer’s support for dealing with another burdened case, the Bührle collection which, from 2020 on, it will host in a new building. Emil Bührle was a German-born art collector and businessman living in Switzerland, highly controversial for having produced heavy weapons for the Third Reich. His important collection of some 160 classical modern paintings, handed over to a foundation by his heirs, has already been examined twice for stolen art, and in some cases, compensations were paid. The legal situation of the Bührle collection is thus impeccable – but what about its legitimacy? This is the urgent question asked in a new book that is available in the bookshops today, entitled “Schwarzbuch Bührle” (black book Bührle). The authors, Thomas Buomberger, a historian, and Guido Magnaguagno, a former vice director of the Kunsthaus Zurich, argue that stolen art is not the only problem, pointing to numerous potentially unvoluntarily sold items in the Bührle collection. Under the weight of public opinion, the foundation has meanwhile promised to have a historian of art clarify the situation before 2020.
While this private initiative is welcome, shouldn’t the restitution law be adapted so as to include unvoluntarily sold items? Isn’t it time to change an incomplete, unjust legislation? And shouldn’t there be a large-scale investigation into the origins of the important works of art on display in the Swiss museums, possibly funded by the state as a public good? The Swiss government is most reluctant and seems to side with gallerists and museums who, understandably, fear the opening of a Pandora’s box. And again, legal certainty is brought forward as an argument. But it is a fake argument, given the inappropriateness of the current legal situation, and it cannot conceal the special interests of those who benefit until this day from an utterly unjust, predatory situation.
This doesn’t occur for the first time. Drawn as a joker whenever special interests are at stake, the principle of legal certainty has a tremendous potential for abuse. Legal certainty – and the steadfast protection of private property – also used to be a reason why Switzerland hesitated for a long time before finally giving up banking secrecy. Formerly, the Swiss didn’t investigate into the origins of the fortunes deposited in their banks. A priori this was a good thing: Switzerland used to be the only truly safe haven for capital owned by persecuted people from around the globe. During the Nazi regime, large amounts of Jewish money flooded anonymous (numbered) Swiss bank accounts – just like the works of art that filled Swiss galleries, collections and museums. Unfortunately, though, not all the money piled up in the Swiss banks’ coffers over the decades was innocent. As the “enfant terrible” Jean Ziegler, a left-wing sociologist, pointed out in his book “Swiss Whitewash” published in 1990, banking secrecy also made money laundering a rather easy exercise. Dictators from all over the world were able to bring in the fortunes they had extorted from their people; the drug mafia did the same. It wasn’t a new paradigm but political pressure that finally took banking secrecy down.
Legal certainty is doubtless one of the cornerstones of a political order based on the rule of law, direct democracy and liberty, all concurring to protect each and every individual. And yet, it should not be mistaken for a value in itself. Its self-evident purpose is simply to take away as much political noise as possible that would otherwise disrupt the spontaneous interaction of private people, since it is from this spontaneous interaction that the best “use of knowledge in society” (Hayek) and the greatest progress can be expected. But the precondition is that the rules of law themselves be just.