Saturday, June 29, 2013

Must a law school's dean always be full-time?

The dean of another law school (not my own) has reportedly come under scrutiny for retaining a close involvement with the powerful D.C. law firm where he was a partner before he became the dean. I don't know the facts, but I want to say something about the relevant law, one of the American Bar Association's accreditation standards, more formally titled the Standards and Rules of Procedure for Approval of Law Schools. Standard 206(a) that says that “[a] law school shall have a full-time Dean” (emphasis added).

Exactly what these words mean might be debated, and Standard 206 doesn’t itself define what “full-time” means. But Standard 402(b) defines a presumably analogous term: “full-time faculty member.” According to this definition:

A full-time faculty member is one whose primary professional employment is with the law school and who devotes substantially all working time during the academic year to the responsibilities described in Standard 404(a), and whose outside professional activities, if any, are limited to those that related to major academic interests or enrich the faculty member’s capacity as a scholar and teacher, are of service to the legal profession and the public generally, and do not unduly interfere with one’s responsibility as a faculty member.”

Standard 404(a) describes “a full-time faculty member’s responsibilities in teaching, scholarship, service to the law school community, and professional activities outside the law school.” Meanwhile, Interpretation 402-4 adds the following:

Regularly engaging in law practice or having an ongoing relationship with a law firm or other business creates a presumption that a faculty member is not a full-time faculty member under this Standard. This presumption may be rebutted if the law school is able to demonstrate that the individual has a full-time commitment to teaching, research, and public service, is available to students, and is able to participate in the governance of the institution to the same extent expected of full-time faculty.

Rather than parse exactly what this language might mean, let me just assume this concrete reading: that a dean of a law school cannot simultaneously be a partner in a law firm. If that’s what the rule means, is it a good rule?

Presumably the purpose of this rule is to promote better legal education. The problem with the rule, however, is that there almost certainly is no proof that this requirement does have the desired effect. It might - but we don't know. It's hard even to imagine the study that would somehow measure the educational impact of deans who do and deans who don't hold law firm partnerships, while controlling for all the other variables that might obscure or mimic the impact of this one consideration. And if one somehow accomplished such a study, it's a safe bet that the results would show, at most, some impact -- nothing like an automatic cause and effect sequence. (Most social science study results, I believe, fall in this area of qualified impacts – which is simply another way of saying that we don't understand human behavior terribly well.)

So the rule can only rest on intuition. That's okay; lots of our decisions have to rest on intuition. There is, moreover, a plausible intuition one can point to: there's only so much time in the day, law schools are complex institutions, so a significant diversion of a dean's time to non-law school matters will undercut the dean's ability to run the school.

But there are several problems with this seemingly plausible intuition.

First, this intuition implies that the dean cannot effectively and reasonably delegate substantial parts of law school leadership and management to others so as to free up some part of his or her own time for non-law school matters. That’s conceivable, of course, but there’s no reason to doubt that deans can (and do) delegate, and so it seems at least possible they can delegate enough to make room for other obligations.

Second, the belief that deans must spend all their time deaning to cope with the challenges of their job probably overstates the complexity of law schools - they certainly are complex, and are facing many special challenges right now, but there are many larger and more complex institutions in the world. (The job of President of the United States is just one job, and the President does take vacations.) Moreover, there is no rule against hiring a practicing lawyer rather than an academic to become dean, so the Standards must be understood to acknowledge that someone without a lifetime's immersion in academia can understand and value a law school's work well enough to lead it. And if a lifetime of immersion in academia isn’t essential, one might infer that a dean could also function effectively without spending all of his or her working time on deaning right now.

Third, the insistence on “a full-time dean” narrows the dean's value to his or her time. In fact much of what a dean brings to the job is not time but perception and inspiration and connection. It certainly seems possible that a dean's law firm connections, for example, could help build educational and then employment opportunities for students. It also seems possible that a Dean with strong connections to the world of practice would have a better and more inspiring vision of what the school’s students should aspire to, and how they should be prepared to meet that vision, than someone less familiar with the world outside academia.

Fourth, it's hard not to think that the rule reflects a particular notion of law schools, as institutions of learning and teaching separate from the world of practice. There is, after all, no rule against a dean spending substantial amounts of his or her time in teaching - though teaching is not administration. Similarly there is no rule against a dean spending substantial amounts of his or her time in scholarly research and writing - though scholarship is neither administration nor teaching. In practice, I suspect most deans don't do much teaching or scholarship while they are deans - a measure of how demanding the job truly is - but they are free to.

One might answer that the ethical obligations of representing clients can create more imperious demands on the dean's time than either scholarship or teaching. This could happen, to be sure. But many things can occasionally produce sharp conflicts, and it's not at all obvious that this particular potential justifies a flat prohibition on deans remaining partners. Certainly there are today many law school professors who have client responsibilities as part of their teaching - as clinical teachers - and yet they generally seem able to carry their multiple duties successfully.

Perhaps in the end the real force sustaining this rule is a sense of symbolism. Teaching and scholarship are the traditional business of the academy, so a dean's spending time on those activities doesn't undercut the idea of law schools as part of the academy. Law schools are part of the academy, and scholarship and teaching are profoundly important. But law schools no longer are wholly cut off from the world of practice (if they ever really were), as the rise of law school clinics and other forms of skills teaching reflects. Nor should law schools be wholly disconnected from the world their graduates will soon inhabit. Law schools are academic institutions engaged in training students to enter the world of practice; that professional focus is as integral as their scholarly commitments.

Once we accept the importance of law schools’ professional focus, however, the symbolic argument shifts dramatically. To bar a dean from remaining part of the world of practice now seems almost perverse. Law schools are precisely in the business of preparing people for that world; why would they require their deans to assert that they are not part of the world to which the students will soon depart?

There's one final argument that might be made in favor of the full-time dean requirement. One might grant that it's not actually essential to good law school leadership to have this rule, and still say that it's a good rule of thumb. I’m not sure that this is so, but it may be. I agree that deaning is a demanding job, and I imagine the great majority of schools will want their dean to be focused on that role full-time. But the problem with this argument (and this is a point critics of the accreditation standards have made many times) is that it assumes that law schools can't make reliable judgments about when to depart from this rule.  Law school trustees and faculties, however, are the people we rely on to do the work of legal education; it would be odd to think they can't make this sort of judgment. (It’s possible, by the way, that the accreditation standards, rightly interpreted, do leave law schools with discretion to make this choice; my point isn’t to insist on a particular reading of the standards but to consider whether an absolute rule against deans being partners – whether or not it now exists – would be a good one.)

If we agree that reasonable educators could decide to hire a less-than-full-time dean, then the only apparent reason to bar them from ever doing so would be that we think the trustees and faculty are potentially engaged in some form of self-dealing. Sometimes this charge may be true - not because law school trustees and faculty are specially untrustworthy but because they are as human as anyone else. But it's difficult to see the self-dealing story here: whatever law schools might be accused of, why would we suspect them of an undue tendency to hire deans who maintain outside commitments? Law schools need their deans. It's hard to see this as the self-dealer's path of choice.

For all these reasons, I think schools should on this score be granted the liberty and burden of choice: to decide who will be the best Dean, in light of all the abilities and commitments and limitations he or she brings.

Thursday, June 27, 2013

When is formalism a mistake? Two guides to an answer from a South African tax case

When is formalism in legal reasoning a mistake? When, if ever, should a court hold to literal language or inflexible rules?

Here are two perspectives on those big questions, from the South African Constitutional Court case of  Liebenberg N.O. and Others v. Bergrivier Municipality (CCT 104/12, decided June 6, 2013).

First, the Bergrivier Municipality had the authority to impose “rates” – property taxes – on all property within its borders. The statute on which the municipality relied for this authority, beginning in late 2000, was the Local Government Transition Act 209 of 1993 (the “Transition Act” – so named because it was enacted as part of the legal transition from apartheid to democracy in the early 1990s). In particular, the municipality utilized section 10G(7) of the Transition Act, a section adopted in 1996, which specified various procedures that had to be followed.

All this seems, really, rather dull. But the case had a backstory. One of the governance changes made since apartheid ended was to make South Africa a nation of wall-to-wall municipalities: every place in the country is in some municipality. That meant, as the Constitutional Court explains (¶ 5) that rural areas formerly beyond local cities’ taxing power now came within those cities’ jurisdiction. In Bergrivier, however, a group of rural landowners did not cooperate. Moreover, the method of noncooperation they chose was not to pay the rates levied and then sue for a refund. (¶ 6) Instead, they just didn’t pay, apparently for several years – thereby making themselves a new part of the culture of nonpayment, a heritage of the anti-apartheid struggle that, as the Constitutional Court observes (¶¶ 79-80), poses a real threat to the ongoing efforts by the post-apartheid nation to govern itself effectively.

Ultimately the municipality sued the landowners, and then they mounted a variety of legal defenses. Some of these defenses were successful; but those that came before the Constitutional Court were not.

One of the landowners’ claims was that the statute under which the municipality claimed to act, section 10G(7) of the Transition Act, had in fact been repealed before the municipality tried to act under it over the course of several years. To determine whether section 10G(7) was or was not still on the books required an elaborate exercise in statutory interpretation, surely one that Parliament had not anticipated and that was the result of inartful choice of statutory terminology.

The first step in determining whether section 10G(7) remained in place in the relevant years was to consult another statute, the Local Government: Municipal Finance Management Act 56 of 2003 (the “Finance Act”), and specifically section 179 of this law. Section 179(1) declared the repeal of a list of statutes, a list that included section 10G of the Transition Act. This part of the Finance Act went into effect on July 2, 2005, and so it might seem to follow that from that date on section 10G(7) of the Transition Act was no more.

But section 179(2) said, explicitly, that despite section 179(1)’s repeal of section 10G, “the provisions contained in subsections (6), (6A) and (7) of section 10G remain in force until the legislation envisaged in section 229(2)(b) of the Constitution is enacted.” So Section 10G(7) was to remain in force, until this additional legislation was enacted.

Section 229(2)(b) of the Constitution in turn authorized Parliament to pass legislation regulating the power of municipalities “to impose rates on property” and other charges. Parliament in due course passed this legislation, a statute called the Local Government: Municipal Property Rates Act 6 of 2004, the “Rates Act” for short. (Are you still with me?)

With the enactment of the Rates Act, section 10G(7) ceased to be in force, by the express terms of section 179(2) of the Finance Act. Or did it? Section 88 of the Rates Act provided that property rates or taxes could continue to be conducted “in terms of legislation repealed by this Act," (that is, repealed by the Rates Act) until a new list of properties and their value (a “valuation roll”) was prepared.

So section 10G(7), which had been repealed, could still be applied! Or could it? Section 88 of the Rates Act only extended the life of “legislation repealed by this Act,” that is, again, by the Rates Act itself. But the Rates Act, which included specific reference to certain legislation that it repealed, did not include any statement that it was repealing section 10G(7). Rather, it was the Finance Act that declared that 10G(7) was repealed but would remain in force until the enactment of what turned out to be the Rates Act. So arguably the Rates Act did not repeal 10G(7); rather, the Rates Act’s enactment marked the date when the repeal of 10G(7) by the Finance Act became effective. (Are you still with me?) And if that was so, then the Rates Act provision for continued use of property rates systems it had repealed would not apply to 10G(7).

A majority of the Constitutional Court, in a judgment written by Acting Justice Mhlantla, found a way around this problem. It concluded that “the ordinary meaning of the phrase ‘repealed by this Act’ [the language of section 88 of the Rates Act] does not preclude the possibility of a broader construction as referring to legislation ‘repealed by the coming into effect of this Act’ or ‘repealed as a result of this Act.’” (¶ 38)

This was hardly free-wheeling interpretation. On the contrary, the Court emphasized the exact details of the wording. "Indeed," Acting Justice Mhlantla wrote, "had the phrase 'in terms of this Act' in fact been used by the Legislature, we may well be straining the text too far to suggest that there could be any other reasonable construction." (¶ 37)

Moreover, the Court argued that a contrary reading was out of kilter with these statutes' purpose, which broadly speaking was to ensure an orderly transition from apartheid-era tax systems to those of the democratic era. It seems quite appropriate for the Court to view these statutes as intertwined, a "unique legislative suite" (¶ 46), and read them as a coherent whole so as to avoid the potential “absurdity” of a different reading. (¶ 38)

There was a further oddity. The Finance Act, section 179(2) of which provided for the repeal of section 10G(7) on enactment of the legislation envisaged in section 229(b) of the Constitution, was evidently enacted in 2003. "Enactment" in South Africa means, at least according to the two dissenters here (and the majority does not express disagreement on the point), the date when the President “assents to and signs” a law after its approval by Parliament. (¶¶ 118-19 (dissenting judgment of Justice Jafta; ¶ 139 (dissenting judgment of Justice Khampepe). But section 179(2) of the Finance Act did not go into operation until July 2, 2005. (South African allows statutes to go into operation on a date subsequent to their enactment, and the Finance Act so provided (see ¶ 140 of the dissent by Justice Khampepe).) Meanwhile, the Rates Act, the statute envisaged by section 229 of the Constitution, was enacted on May 11, 2004.

So if, at the moment that section 179 went into effect in 2005, its provision for section 10G(7) to cease to be law with the enactment of the Rates Act immediately took effect retroactively to the date of the Rates Act's enactment a year earlier, and if (as the landowners argued) section 88 of the Rates Act did not operate to preserve section 10G(7) even so, then for a period of thirteen months there evidently would simply have been no legislation enabling municipalities to impose property taxes on rural land within their borders. (¶ 52 of the majority judgment of Acting Justice Mhantla) Oddest of all, while the Transition Act would on this theory have become inoperative, other legislation from the apartheid era that hadn’t yet been repealed would have remained in effect for a time, even though the point of this entire set of statutes was to effect a transition out of apartheid. (See ¶¶ 43 & 50) It’s really inconceivable that Parliament intended such a state of affairs.

So the majority’s interpretation – which did no more than utilize one possible meaning of the text rather than another possible meaning, so as to achieve a result vastly more consistent with the statutes’ purpose than the alternative would have produced – seems entirely legitimate. This much departure from strictest legalism is easily defended. Indeed, while the majority has avoided a particularly constraining textual reading, it seems fair to say that its interpretation is so well based in the rules of statutory interpretation that it is, after all, quite formalist itself.

Second, however, there is another formalism question in the same case.

Once it's determined that section 10G(7) provided the municipality with its authority to impose taxes, it might seem to follow that the municipality was obliged to use the procedures specified in section 10G(7) for the exercise of this power. To some extent, that's exactly what the municipality did.

But not entirely. The Finance Act also specified procedures for levying rates, and the Court said  (¶ 70) that "[t]here were instances ... where the Municipality only complied with the requirements of the Finance Act in the manner that it levied the rates." 

It's not clear to me, frankly, exactly how the Finance Act procedures come into play. If the Finance Act procedures were complementary to those of section 10G(7), the municipality might have been required to obey both, but the majority explicitly rejected this possibility. (¶ 73)

On the other hand, if the two sets of procedures – from the Finance Act and from section 10G(7) – were inconsistent, and if section 179 of the Finance Act meant that section 10G(7)’s substantive authority to levy rates remained in effect, it seems odd to me to conclude that another part of the Finance Act, apparently without saying so in so many words, overrode just the procedural part of section 10G(7).

But suppose that the Finance Act did have this effect. Then one can easily accept the Court's rationale for rejecting challenges based on the municipality's failure to use the section 10G(7) procedures: "the Municipality complied with the requirements of the Finance Act and, in any event, substantially complied with the objects of the requirements in section 10G(7)." (¶ 74)

But then the Court turns to another question of procedure. This question is whether the municipality complied with the requirements not of the Finance Act but of the Rates Act. If the Finance Act's procedures apply instead of section 10G(7)'s, one might think that the Rates Act's procedures similarly replace section 10G(7)'s, since I take it that both the Finance Act and the Rates Act were in force in the relevant period. (How any clashes between the Finance Act and the Rates Act might be resolved doesn't appear to be an issue in this case.)

But it turns out that the municipality definitely did not comply, over three financial (fiscal) years, with at least one requirement of the Rates Act - that its decision specifying the rates it would levy be printed in the "Provincial Gazette," an official record of government actions.

Should we care? The majority responded that this requirement of the Rates Act didn't apply, because section 10G(7) remained in effect. (¶ 77) I don't understand, however, why the Finance Act's requirements could override section 10G(7)'s, but the Rates Act requirements couldn't. (I admit I may be missing something here!)

But let’s assume for purposes of argument that the Rates Act requirement of publication in the Provincial Gazette did apply. The municipality argued that even though it had not actually published as required, it had placed notices in the newspaper and had undertaken a process of public participation, and so, it said, it “had complied substantially” with the publication requirement, since the actions it took gave notice to the public and elicited public participation. (¶ 146, dissenting opinion of Justice Khampepe) It may well be the case that the people subjected to these levies of rates (again, property taxes in U.S. parlance) were fully aware of, and had an ample opportunity to participate in the public consideration of, the decisions that the Bergrivier municipality made. The majority didn’t adopt this line of argument (since it considered the publication requirement inapplicable in the first place), but it did embrace the general idea that substantial compliance by a municipality with its statutory duties could suffice (¶ 26). Indeed, even Justice Khampepe, who focused on this publication requirement in her dissent, acknowledged that the “doctrine of substantial compliance … has its place.” (¶ 159) So the question would be whether the requirement of printing in the Gazette is one for which substantial compliance is possible.

Justice Khampepe said no, and I think there is force to her position. As she wrote, “[l]egislative acts depend for their legal efficacy on due promulgation. This is an incident of the rule of law that has long been part of South African jurisprudence.” (¶ 148) It is not hard to see the appeal of the proposition that people subject to laws must always be able to find them, without fail, in a particular place or publication.

Appealing as this proposition is, it isn’t absolute, even in the case of legislation, as Justice Khampepe acknowledged (¶ 158) Moreover, a lot of law is not legislation. The vast amounts of law made in court decisions, in South Africa as in the United States and many other countries, in fact can't be found fully in any one place, but can only be gleaned by more or less elaborate reading and interpretation of cases.

But if some law is hard to find, a lot of it is not. You're supposed to be able to find the laws enacted by Congress or Parliament, or (one might reasonably say) the laws adopted by lesser legislative bodies as well. Municipal decisions to impose property taxes, in particular, are legislation, under another Constitutional Court decision cited by Justice Khampepe (¶ 147)).

I’m inclined to say that if the publication requirement did apply (remember that the majority’s position is that the requirement just wasn’t applicable), then the failure to comply with it should have invalidated the municipality’s actions. To me, this thoroughly technical rule is part of the basic substructure for the system of laws. Once we know what the words of the adopted law are, we may want to interpret them freely, even quite a lot more freely than the Constitutional Court did in determining that section 10G(7) had not been inadvertently repealed by Parliament. But I think we need to know, as definitively as possible, what the words are in the first place. So when is formalism too much? I answer: sometimes, but not always.

And here’s one more reason why: This post is long. It’s taken me this long just to explain and briefly discuss the interpretive problems I wanted to illustrate. If you’ve read this far, I hope you’ve found the explanation reasonably clear. But it wouldn’t have been clear at all, not in the slightest, if we all didn’t take for granted a whole set of formal assumptions, such as that multiple statutes should be read with each other in mind, and that interpreters can’t simply pick the statutory language they like best or give the words they identify any meaning they choose. We couldn’t even talk about law of this sort – elaborated, systematized written legal rules and standards – if we weren’t all pretty formalist. The only real question is exactly how formalist to be.

Sunday, June 23, 2013

Authenticity and African art - again

As I learn more about African art, I hope I'm appreciating it more and perhaps grasping a little better what some of the debates about it involve. I've posted about the question of authenticity before, especially here and here -- and here's what's struck me most recently. 

Sidney Littlefield Kasfir, in her “Coda” to the fascinating book she and Till Fรถrster co-edited, African Art and Agency in the Workshop (2013), describes the functioning of “a Kamba women’s self-help group” making baskets in Nairobi, and writes that “[c]raft such as Kamba baskets … are sold to both local elites and expatriates, and traders supply the women with considerable feedback on aesthetic preferences from both groups of buyers…. The feedback has also influenced color choices, with a preference for so-called natural tones, and nonsynthetic materials, reminiscent of the influences on Navajo weaving early in the twentieth century by white collectors and gallery owners who wanted to keep it ‘traditional.’” (393) (For examples of Kamba sisal baskets, though not necessarily from the women's self-help group Kasfir discussed, click here.)

Part of Kasfir’s point is that wherever there are tourists and foreign markets, the local creators shape what they do in part with those buyers in mind. Today there are tourists everywhere – except in the places off the beaten track, whose residents dream of reaching the tourists buying elsewhere, as Kasfir indicates (390).

So is the art produced for these markets inauthentic? One answer would be that such art must be considered inauthentic because it was produced as a commodity. But that’s a hard position to defend, given that all or almost all art is at least in part a commodity. (Wasn’t the Sistine Chapel commissioned?) Even in African communities where art may have been made only for ritual purposes, and for only modest economic reimbursement, its producers surely received benefits of various sorts, such as “a certain importance and esteem in the community,” as Kasfir mentions in an earlier article reproduced in this volume, “Apprentices and Entrpreneurs: The Workshop and Style Uniformity in Sub-Saharan Africa” (367). Today, after Andy Warhol, it’s not surprising that, as Kasfir eloquently puts it, “commodification has become the norm in many [African art] workshops and has lost some of its stigma as it has become an acknowledged part of the broad sweep of changes introduced with modernity riding astride colonialism and political independence in African countries.” (386)

Another answer would be that art for the market is inauthentic because it doesn’t reflect the true impulses of the creators but rather the patrons’ or customers’ wishes. But this position is hard to defend too. The patrons’ wishes undoubtedly influence what the creator makes, as Kasfir emphasizes, but the creator’s views and achievements no doubt influence what the patrons wish for. The creator may well produce different things for different audiences, or even reserve some special works for his or her own personal enjoyment, but it doesn’t follow that any of these are inauthentic. To borrow from the world of etiquette: if we want to be courteous to others, using polite manners is an authentic expression of that desire. The different ways we engage with different other people may all be authentic expressions of ourselves, in those differing contexts. I don’t mean that everything people do is automatically authentic – just as the fact that there are social influences on what we do doesn’t make it all inauthentic either.

Still another answer would be that art for the market is inauthentic because it isn’t done with care. Kasfir, I think, would agree that much work for the market consists of “souvenirs or curios” (389), and it may well be that this work isn’t done with much care – though it may still be rightly fascinating to tourists who have not encountered it before (one shouldn’t be ashamed to be a tourist buying tourist art). Kasfir also seems unimpressed with “the perennial copies” that get produced – but it seems to me that a well-executed copy would in fact be authentic in the sense I’m considering now, precisely because it would have been done with care.

Yet another criticism might be that art done for the market isn’t authentic because it isn’t done with creativity – it lacks the spark of creation that marks authentic art. “Perennial copies” would be inauthentic in this sense, even if they are done with great care. But Kasfir makes clear that sometimes the impact of the market is to foster creativity, for example among the Dogon, where “it has increased competition among mask carvers and has also rewarded virtuoso masked dance performances that tourists strive to capture on video.” (389) (For one dealer's examples of Dogon masks, most evidently produced for the market, click here.)

There’s also another puzzle: is copying by definition not a form of artistic creativity? It might be that merely copying is not creative; recording the music for a CD is creative, but the process of producing a million copies is not. Even this proposition seems a bit uncertain: perhaps one might make one’s art consist of the process of mass production. But even if mechanical reproduction cannot be creative, copying by humans is not mechanical. In her earlier article, Kasfir observed that “even in cultures that hold style uniformity in high regard, the concept of drift has to be taken into account.” (371) Both parts of this observation are important. People don’t reproduce originals exactly, and so there is always some room for “drift” and with it for creative change. Just as important, some cultures value “style uniformity.” If style uniformity is a crucial aesthetic criterion, then artists will seek to achieve it; their artistic creation is the achievement of that uniformity.

That notion may seem to miss the point of creativity. But there are quite a few contexts in which Western art is very much concerned with uniformity. When classical orchestras perform, they interpret the score – but the score remains set. So, too, when actors perform Shakespeare (at least most of the time), or, I think, when dancers carry out the directions of a choreographer. The uniform basis is the foundation for the interpretive creativity. So, too, the mask carver’s ability to fully implement the rules of his style may precisely be his creativity.

There is, at last, one way in which art for the market may be inauthentic – namely that it is not a full copy. If work made for the market is visually identical to work made for ritual purposes, but was made without the religious rituals that would have been required to make the resulting piece carry religious power, then the work does not embody the same social practices as an authentic original would have. This is true. My impression, however, is that not every mask made in earlier times in fact carried such religious significance or was made in such a ritual fashion; people in Africa, as elsewhere, have been operating in the world of commerce and exchange for a long time. Nevertheless, some masks were made with ritual care, and the knowledge of those rituals is fading, as is Africans’ belief in them. So there may soon be no new masks which are authentic in this sense.

But even that won’t mean that the masks lack human authenticity. The artist who seeks to honor his or her forebears’ cultural practices by faithfully reproducing the objects they made is expressing an authentic human purpose. The artist who seeks an income from works that honor his or her forebears’ cultural practices is also expressing an authentic human purpose. And so is the artist who seeks his or her income with works that draw inspiration from, but are not identical to, those that came earlier, and that instead reflect new insights and achieve new results.

I think the net result of these arguments would be that there are so many forms of authenticity that the concept itself should be put to one side. One advantage of doing so is that those who admire African art could cease to worry about whether any given piece is authentic in yet another sense, namely that it is what its seller claims it is. That doesn’t matter, nor do the other senses of authenticity, if the only real question should be, after all, whether you (or I) like the work.