MORALITY: THE DEFINING CONTEXT

One might well consider the need for a definitional underpinning to the word “morality” in this article, especially since its subject matter is about the evolving application of morality to the issue of restitution of Nazi-looted art, and one of its criticisms is its invocation by scholars, policymakers, and decision-makers without articulation of its meaning. Morality, however, is not per se the subject matter of this article in the sense of being a philosophical treatise on what constitutes a moral claim and moral action. Rather, this article seeks to highlight the amorphous use made of the word and its lack of definitional boundary in the context of these disputes.

A paradox is presented by this article: it challenges the increasing invocation of morality as a basis for restitution where no meaning is ascribed to it in doing so, yet it has no intention to offer a definition of morality that could be applied to its use. Morality is a value-laden term cutting across definitional boundaries. It does not matter which definition would be ascribed to morality in this study by the author; it would merely add another definition to an already crowded field. As legal philosophers have found, there is no universally accepted definition or approach to morality or moral theory, even at the very basic level of whether a definition is descriptive or normative in nature, which impacts its claims, applicability, and enforcement.^{Footnote 7} Approaches also differ. For example, Michael Perry considers the concept of morality within legal discourse, noting different underlying premises to the concept: one that is steeped in religious beliefs and, more particularly, in the belief of God and another that sees it as a secular term or as one fueled by self-interest, emotions, or a concern for humanity.^{Footnote 8}

Even in other philosophical literature that offers a similar underpinning to morality as a concept embedded in a social construct, differences appear. Ronit Donyets Kedar says that morality comes from interpersonal relationships based on humanity.^{Footnote 9} Bernard Gert sees morality as an informal public system applying to rational persons that governs behaviors, comprised of two aspects: the everyday, which might result in disagreements that would be determined by political or legal actions, and 10 common rules that reflect primary ideals.^{Footnote 10} Leslie Green sees morality as depending on a social group’s beliefs and the values and norms they espouse.^{Footnote 11} As such, he states that morality is fluid, is subject to change when circumstances change, and, therefore, is fallible.^{Footnote 12} These views, while all ostensibly premised on a social framework, differ in their approach to the concept: morality is part of the universe of humanity; it is a public system comprised of rational beings who in their everyday disagreements turn to the law or politics for solution and are bound to the greater good by 10 rules; or it is based on social norms and beliefs, subject to fluctuation. The nature of these views is broadly based to include the humanitarian, the legal, the religious, and the social. Each provides an alternative framework of interpretation.

Other problems with the concept have also been noted. John Merryman, like Green, sees a connection between society and morality, with a particular focus on the temporal nature of moral tenets. In the consideration of the issue of the restitution of the Parthenon Marbles to Greece, he considers morality at the time the Marbles were taken from Greece, both in terms of the morality of Lord Elgin’s acts and the treatment of cultural property generally by nation-states and looters alike, thereby suggesting that morality is defined by the age within which the act was carried out.^{Footnote 13} Herlinde Pauer-Studer considers the manipulation of social morality by the Nazi government in shaping its laws to ensure compliance with them, suggesting that morality is not a secure guideline.^{Footnote 14} Further, Leonard Berkowitz and Nigel Walker, in an experiment to gauge the impact of laws and society on moral judgments, found that peer pressure had a greater impact in the formulation of moral judgments than knowledge of the law, implying that it is the morality of the powerful that impacts decisions about what constitutes morality.^{Footnote 15}

These are but a few brief examples that illustrate a complexity to the nature of morality giving rise to its problematic use in the determination of the fair and just solution. Its fluidity and shape-shifting presents a questionable justification for restitution. While morality may seemingly offer a rationale for the restitution of Nazi-looted art, particularly in view of the heinous acts committed by the Nazi regime, its nature is indeterminate, opaque, and ad hoc. Continual reliance on morality as the basis for restitution does not respond to dilemmas facing those who make claims or those defending such claims; entitlement to restitution remains unclear. As such, it is an inadequate basis upon which to promote restitution in all circumstances. Claimants, possessors of artworks, adjudicators, facilitators, advisers, and society generally deserve better.

THE WASHINGTON PRINCIPLES AND THE FAIR AND JUST SOLUTION

This article will not go over terrain that is repeated extensively in the literature dealing with the restitution of looted art; for a detailed review of the legal framework or soft law instruments, resolutions, and declarations dealing with cultural property, attention can be directed to many works explaining them in detail.^{Footnote 16} Rather, its focus is on the words “fair and just” that were introduced by the Washington Principles in the context of Nazi-looted art and the impact of these words on the evolution of the moral principles guiding their objective.

The 1998 Washington Principles, which were agreed by 44 nations participating in a US-led initiative to deal with the difficulties arising with the restitution of Nazi-era looted art, set the goal in such claims to be the achievement of a fair and just solution.^{Footnote 17} No one would doubt that all claims for the return of such art should be resolved in a fair and just manner, whether that is through consensual means or adjudication. The relevance of the Washington Principles is that they call on nation-states to create alternative dispute resolution processes in line with these principles.^{Footnote 18} As such, they seek to offer soft law norms for the consideration of restitution issues surrounding Nazi-looted art. Some countries have done so, including the United Kingdom, Germany, the Netherlands, Austria, and France, through the establishment of state-sponsored restitution committees charged with the determination of such looted art claims.^{Footnote 19} However, the Washington Principles, alone, do not assist with an assessment of what is fair and just. Their difficulty is that they refer to the need to be fair and just in resolving such disputes, but that is all they say: they do not define these words, and, in fact, the Washington Principles acknowledge that what is just and fair will change according to the particular circumstances of each claim.^{Footnote 20} Sections 8 and 9 of the Washington Principles state as follows:

While the Washington Principles themselves do not assist in defining what is fair and just, the concept of morality seems to underpin the phrase. In dealing with art claims from the Nazi era, as a result of the Washington Principles and the guidelines established for that purpose, as will be seen, the processes implemented under their edict often involve a consideration of the strength of the claimant’s moral claim to the property and the extent of the moral obligation on the possessor to return the property, all as part of the fair and just solution.

MORALITY AS A MARKER FOR THE FAIR AND JUST SOLUTION: A GROWING RELIANCE ON THE WORD

Through the application of the Washington Principles, concepts of morality have become increasingly relevant for the resolution of these disputes, as stated above. The United Kingdom’s Spoliation Advisory Panel (SAP) is an excellent example of this, wherein the Panel may determine the moral strength of a claim.^{Footnote 22} Charlotte Woodhead considers the past recommendations of the SAP and its heavy reliance on morality and concludes that the SAP has developed a concept of moral title in the determination of entitlement to cultural property.^{Footnote 23} When its terms of reference are reviewed, it is seen that morality is one of many factors that the SAP is required to consider.^{Footnote 24} Many of the other factors, arguably, reside within a legal framework such as consideration of factual and legal matters, statutory provisions, and validity of title.^{Footnote 25} In fact, until July 2016, the evaluation of moral obligation had an underbelly tinged with legal merits: moral obligations of the respondent were to be considered in light of the acquisition of the property and the institution’s knowledge as to the validity of its provenance, all of which made an assessment of moral superiority a multi-dimensional endeavor.^{Footnote 26}

Prior to July 2016, the SAP’s Terms of Reference had regard not only to the moral title of the claimant but also, as noted above, to the moral obligations of the respondent institution. The Panel, in its pursuit of the fair and just solution, was required to “give due weight to the moral strength of the claimant’s case” and “consider whether any moral obligation rests on the institution,” with the moral requirement remaining undefined.^{Footnote 27} This two-fold morality requirement changed with the revised Terms of Reference in July 2016, when the moral obligation of the institution appears to have been downgraded and taken out of the specific factors that the SAP is to consider; now it will only consider whether “any particular moral obligation rests on the institution” if it is necessary to do so in the course of ensuring a fair and just solution.^{Footnote 28} Morality is a specific factor to be considered in relation to the claimant but is not to be considered in the same manner with respect to the respondent’s position as previously required. A distinction is made between parties in respect of the weight of the moral factor. The criteria regarding morality are no longer mandatory for the institution that holds the art. As a further point, both iterations of the SAP’s Terms of Reference speak only to the moral strength of the claimant’s title and not to the moral strength of the respondent’s title (it is the moral obligation of the respondent that would be examined, not its moral entitlement).

This raises the question whether the moral strength of the respondent’s title should also be considered for the sake of a fair and just solution. It will be seen later in this article that competing moral claims between museum and individual may occur with respect to Nazi-looted art. Is it fair and just to consider the moral strength of the claimant’s position but not the moral strength of the response or the moral obligation of the respondent unless necessary? Further, what does it mean to have a moral claim? Both iterations also fail to define morality for the purposes of assessing moral strength or obligation. In Woodhead’s review of the SAP’s decisions, it appears that the most that can be offered by way of definition is that a direct seizure by the Nazis offers a strong moral claim, while a forced sale depends on “moral severity.”^{Footnote 29} These decisions do not engage in establishing the framework of the moral claim—at most, it is circumstantial, to be determined case by case. The concept remains elusive despite its use. The most that can be gleaned is the answer—it depends. These issues are reflective of the problematic use of the moral factor in the consideration of these claims.

The use of the moral factor is not limited to the SAP’s use. Tabitha Oost also sees a shift from a legal paradigm to a moral paradigm in the work of the Dutch Restitution Committee.^{Footnote 30} This, together with the work of other various European restitution committees, where fair and just is often considered in relation to moral obligations and entitlements, suggests an institutionalization of a morality requirement.^{Footnote 31} Additionally, Thérèse O’Donnell sees the concept of moral duty as having been accepted by the art world in dealing with issues of Nazi-era looted art and restitution.^{Footnote 32} On voluntarily restituting cultural property to a victim of Holocaust looting, Joan Troccoli, deputy director of the Denver Art Museum, for example, explains: “We felt we had a moral responsibility to be responsive to claims, which was just as important as our legal obligations.”^{Footnote 33} This seems to support Evelien Campfens’s suggestion that moral norms are gaining ground through soft law instruments such as ethical codes.^{Footnote 34}

With such references to moral rights and duties in the consideration of reaching fair and just outcomes, it would appear that morality has taken on a normative construct of justice.^{Footnote 35} Even so, it fudges the question as to whether the invocation of moral rights to support restitution claims leads to a fair and just outcome. Perhaps, at its simplest, morality and justice in this context become the same thing because the act of returning an item that does not belong to you, but belongs to the person who has suffered greatly by its loss, can be easily understood. However, as the scholarship indicates, simplicity is not a characteristic of cultural property disputes. These are not easy claims to reconcile. Willi Korte, an American lawyer specializing in art claims, speaks of the difficulty of pursuing such art claims: “[Y]ou’re asking someone for something in exchange for nothing—except acknowledgment of their moral obligation to return a work of art.”^{Footnote 36}

A LACK OF DEFINITIONAL BOUNDARY

Just as the Washington Principles do not offer much guidance on what is fair and just, rarely does the scholarship on the evolution of the moral claim in restitution disputes define morality, moral duty, or moral obligation. The literature dealing with the restitution of Nazi-looted artwork speaks broadly of morality. For example, in titles and introductions, it speaks of ethical dilemmas and the importance of moral precepts to guide the return of such cultural property. It rarely, if at all, attempts to consider what the morality is to which it refers.^{Footnote 37} For example, Oost, in placing the work of the SAP and the Dutch Restitution Committee within a moral paradigm, assumes morality as an understood concept, without definitional boundary.^{Footnote 38} She argues that morality lacks clear standards, which does not provide a good basis on which these committees should proceed to determine restitution claims.^{Footnote 39} Campfens also assumes it as an understood concept, without definitional boundary, seeing the difficulty with its use; more particularly, she refers to morality as a “vague norm” dependent on power, commercial interests, or political motivations and, as such, sees the need for clear norms to determine looted art claims.^{Footnote 40} Implicit in the discussion is a view that, while it is understandably used as justification for restitution in Nazi-looted claims, its nature remains elusive.

Morality is sometimes used in the context of determining right and wrong such as was used by the Seattle Art Museum when returning a Matisse to the heirs of a Holocaust victim: “By our action today, the Seattle Art Museum is drawing a clear ethical line. Since day one, SAM has been committed to doing the right thing.”^{Footnote 41} Doing the right thing is often described as moral obligation.^{Footnote 42} Tiffany Jenkins argues that there is an internal struggle within museums between the need to fulfill a museum’s role and the need to do the “right thing” when faced with an issue of repatriation or restitution of cultural property.^{Footnote 43} Is then the fulfillment of a moral obligation “doing the right thing” or should we look at the underlying reason for the fulfillment of the moral obligation?^{Footnote 44} Doing the “right thing” does not help because similar considerations apply to this phrase as to morality: what is the “right thing” to do; what values should underpin it; and who should be the final arbiter on what is the “right thing” to do.

Ethical codes to which museums are often subjected, also do not appear to assist in defining moral obligation. For example, the Code of Ethics for the International Council of Museums (ICOM Code) does not refer to either morality or “doing the right thing” when speaking of the return of cultural property. Specifically, Articles 6.2 and 6.3 state:

It seems to be accepted in the literature that morality is a sufficient marker for achieving fair and just solutions, yet it is a marker that sits ambiguously within a broader justice framework. The current use of morality in the field seems to presuppose that morality is a unique social phenomenon, distinct from legal rules defined by state law. It falls neither within a legal framework of justice as theorized by John Rawls, for example, nor does it fall within other concepts of justice: popular, restorative, or procedural justice, for example. The goal of the Washington Principles is the fair and just solution, which seems to assume that a fair and just solution delivers justice, yet there is a lack of consideration of what form justice should take in the resolution of these cultural property disputes. Perhaps that might explain the readiness with which the fulfillment of a moral obligation has taken on the context of a fair and just outcome.

It is rare that the literature offers an analysis of the fair and just solution through a justice framework. Some scholars have attempted to do so including Derek Fincham, Norman Palmer, and Matthias Weller.^{Footnote 46} Fincham argues for cultural justice, referring to Rawlsian concepts of the original position and the veil of ignorance as the starting point for establishing rules of society and placing these concepts within an environmental justice framework from which to assess distributive, procedural, corrective, and social justice concerns of the cultural property dispute.^{Footnote 47} While not speaking in the context of the just and fair solution, Fincham brings attention to the various aspects of justice that can impact the resolution of the art dispute and applies many aspects of justice in his consideration. Palmer, on the other hand, looks to the underlying premise of the fair and just solution, relying on general “well-known tenets of justice” such as an impartial resolution, a speedy resolution of issues, approaching claims on their merits, which he says combine substantive and procedural justice concerns.^{Footnote 48}

Although Fincham and Palmer seek to place the issue within a justice dialogue, their expositions appear to be broadly conceived. Weller’s exploration of the fair and just solution in light of the relationship between law and justice offers a more targeted view. He states that abstract concepts of justice as currently exist do not assist in finding just and fair solutions, necessitating a reworking of restitution principles in order for justice to be possible.^{Footnote 49} For Weller, these principles should focus on procedural legitimacy, requiring the following: a reputable decision-maker; rules established by those not adjudicating the claims; public trust in the system; set procedural rules; and publicly available reasoning to support the decisions.^{Footnote 50} Fincham, Palmer, and Weller recognize the need for parameters around the concept of justice as applied to restitution claims. Fair and just must sit within a justice framework to be viable. The current deficiency is augmented when adding the value-laden use of morality to the notion of the fair and just solution without establishing its role and function within a justice system.

Morality is a complicated concept particularly when examining it in relation to a legal framework pursuant to which these claims arise; adherents to natural law theory will see the connection between law and morality in that laws are steeped in morality;^{Footnote 51} while the positivist theorists see the necessity of separation between law and morality where there is no place for morality in a legal system.^{Footnote 52} Yet, even further, communitarians see morality emerging from shared experiences, with law being underpinned by community values.^{Footnote 53} This serves to illustrate an ambivalent relationship between law and morality and provides an insight as to why morality does not fit easily within a justice system as suggested by the words of the Washington Principles and its fair and just solutions. As such, its role in providing a premise for fair and just solutions is questionable. As Palmer states, “[j]ustifications must be capable of withstanding the most searching analysis. Only by that means will it become possible to treat like cases alike and offer coherent guidance to future claims. Anything short of that will bring a system of resolution, however well-meaning and well-resourced, into significant disrepute.”^{Footnote 54}

IN THE FACE OF COMPETING CLAIMS

Jennifer Kreder sees the futility of relying on morality to guide the resolution of cultural property claims, particularly in the context of Nazi-era looted art because moral views vary.^{Footnote 55} She uses two restitution cases to highlight the need for guidelines by which fair and just solutions can be determined. For those guidelines, she turns to ICOM’s Code to consider museum obligations and ethics in the context of restitution claims against the Auschwitz-Birkenau State Museum (ABSM) in Poland made by a survivor to the Holocaust and by the heir of a Holocaust victim. Kreder’s examples are worth considering in some detail for purposes of this article. In both cases, the moral arguments for and against restitution are compelling. Both arise out of Holocaust era atrocities.

The first claim concerns that of Pierre Levi’s son who requested the return of his father’s suitcase from the ABSM.^{Footnote 56} Levi’s son recognized the suitcase when it was on loan to the Paris Foundation for Remembrance of the Shoah (Paris Shoah Foundation). His father died in Auschwitz. The ABSM at first refused to return the suitcase by denying Levi’s ownership claim, attempting a legal obstacle to its return. It eventually agreed to compromise by loaning the suitcase to the Paris Shoah Foundation for an indefinite basis in exchange for it being able to retain ownership of the suitcase. The ABSM’s opposition was steeped on a premise of keeping alive the history of the genocide at the very place it occurred by maintaining the integrity of all items found at the camp.^{Footnote 57} Levi’s son wanted the suitcase to be in a museum for all to see, but he did not want it to undergo another trip back to Auschwitz—once was enough.^{Footnote 58} Both positions can be said to be morally valid—one for individual reasons and the other for social reasons. In this case, the parties were able to reach a compromise; however, in the second example, the dispute remains outstanding.

The second dispute, which involves a similar competing moral claim, deals with the Babbitt watercolor paintings.^{Footnote 59} Dina Babbitt was a prisoner of Dr Josef Mengele at Auschwitz during the Holocaust. To save her life and that of her mother, she agreed to paint prisoners as requested by Mengele. At issue are seven watercolors of Roma and Sinti prisoners. Babbitt claimed their return as they are a reminder of her survival and represent her need to retain what belongs to her after having had everything taken away from her.^{Footnote 60} The ABSM opposes the return on the basis of legal ownership and for similar reasons as articulated in the Levi claim.^{Footnote 61} In particular, when reviewing the Babbitt claim again in 2009, the International Auschwitz Council stated as follows:

The case remains unresolved, despite years of litigation. Babbitt has died without a return of the paintings; her heirs continue the struggle.^{Footnote 63} This dispute can also be said to involve two valid moral claims, with each party strongly believing in the superiority of their claim. Their competing moral claims have led to a stalemate between the parties. As Rabbi Andrew Baker, then director of International Jewish Affairs for the American Jewish Committee and a member of the International Auschwitz Council, which advises the Auschwitz museum, stated: “The people at the Polish museum aren’t devils. They want to maintain Auschwitz as authentically as they can, and I can appreciate the role exhibiting the paintings plays. What I’ve always thought is there is no one else in the world who so values these paintings as Dina Babbitt and the directors of this museum.”^{Footnote 64}

While Kreder uses these examples to argue the relevance of the ICOM Code as providing a sufficient framework for restitution claims such as these, it should be noted that she makes a very persuasive argument of the superiority of the claimant’s moral claim over that of the museum. Having said this, however, one can argue that a moral dilemma exists in both cases, and the dilemma rests on one’s view of morality and its underlying values.^{Footnote 65} For example, the mainstream media illustrated the dichotomy of views. Tom Sutcliffe, a British Broadcasting Corporation commentator on a radio program about the ownership of culture, said of Nazi-era spoliation restitution: “It is a no brainer. No one will say …”—a statement with which many would agree.^{Footnote 66} However, another view was suggested by Jenkins, guest commentator on the same program, who responded: “It may be a no-brainer, but it is not straightforward. It is not to say things returned to individuals are better there; they may be better in a museum.”^{Footnote 67} The 2018 decision of the UK government to fund trips by student and university leaders to Auschwitz as a way to tackle anti-Semitism and racism on university campuses gives color to the complexity of the debate.^{Footnote 68} Students experienced, first hand, the horrors of the Holocaust during their visit to Auschwitz in November 2018 as part of this funded project, with one student leader saying: “As citizens, this is part of our history, and we need to ensure that nothing like this happens again. I hope I will be brave enough to speak out and challenge behaviour.”^{Footnote 69} It was their trip to the ABSM that elicited such reaction.

In this debate, some will argue that the victim’s claim trumps the public interest claim, and this cannot be said to be wrong. Some will argue that the preservation of the collective consciousness in the very place where the loss occurred trumps the individual claim, and this cannot be said to be wrong. These are two conflicting and meritorious opinions. However, who is to decide which is the superior opinion and which is the more fair and just view? Ultimately, something more than morality is needed because it is clear from these two scenarios that morality does not always provide for a fair and just resolution.

These examples pit two, ostensibly valid, moral claims against one another—the claim of the individual victim of Nazi atrocities against a public interest for the preservation of a memorial. In a broader context, Kreder’s case studies and their competing claims are suggestive of Merryman’s dichotomy of cultural nationalism and cultural internationalism.^{Footnote 70} They epitomize Merryman’s stratification between national collective claims and those of all human beings. Merryman, in speaking of the global movement toward defending cultural nationalism for the return of cultural property, argues that the underlying values of cultural internationalism should not be forgotten; in this broader context, the simplicity of the argument for the return of objects to their place of origin is not always a straightforward matter of the protection of cultural identity. According to Merryman, it is important to balance the interests promulgated by both views; in other words, the moral obligation of the return of cultural property that forms part of the cultural heritage of a community, arguably, should not always take precedence over the larger public interest of preservation, education, and promotion of universal cultural heritage.^{Footnote 71} Merryman’s arguments have resonance for Nazi-era looted art as well: a similar difficulty occurs with the question of how to resolve valid competing interests and moral claims, whether they are reflective of individual or “worldkind” interests.

These competing interests and views have become the fodder for controversy. In 2008, Sir Norman Rosenthal, former head of exhibitions of the Royal Academy of Arts and of Jewish heritage whose family suffered under the Nazi regime, suggested that the restitution of Nazi-era looted art should end: “I believe, however, that grandchildren or distant relations of people who had works of art or property taken away by the Nazis do not now have an inalienable right to ownership, at the beginning of the 21st century. If valuable objects have ended up in the public sphere, even on account of the terrible facts of history, then that is the way it is. … It has to be good that important works of art should be available to all through public ownership. Restitution claims from museums go against this idea and result in the general culture being impoverished.”^{Footnote 72} Rosenthal’s comments come in the context of the following particular sentiments he espoused at the time. As he had explained, it is not fair that some victims of the Nazi atrocities receive compensation through restitution claims, while others who suffered the same atrocities receive nothing; as the claimants become further removed from the victims of the Holocaust, the entitlement to restitution should be limited; the restitution of art work cannot compensate for the actions taken by the Nazis; the restitution of art has become tainted due to the economic gain that accrues to some individuals because of restitution and the negative impact of this on the art market; and art should be preserved by museums for society as a whole.^{Footnote 73} At the time that this view was articulated by Rosenthal, he was subjected to both vociferous critique and support in the press and scholarship.^{Footnote 74}

The issue of competing claims also arises when dealing with claims against bonafide purchasers of cultural property.^{Footnote 75} In this case, bonafide purchasers refer to those who are innocent of any wrongdoing or negligent conduct in the purchase of the property—in other words, those who have not turned a blind eye to precariously established provenance. How does a consideration of moral entitlement in this scenario lead to a fair and just outcome? Resolution in this scenario may not be as simple as a straight return of the contested property; resolution in this scenario may need a reconciliation of interests for the consideration of a fair and just outcome. Currently, the law deals with the bonafide purchaser; in civil law traditions, the bonafide purchaser may have good title despite the nature of the artwork as stolen, whereas the common law tradition holds that good title to stolen goods cannot be conveyed to a bonafide purchaser.^{Footnote 76}

If one looks at this issue from a moral standpoint, two innocents are again pitted against one another. The morality of the situation may be seen from two perspectives, and, ultimately, a subjective call would need to be made as to which has the greater moral claim, how best to compensate the inferior claim who suffers a loss by virtue of the restitution, and who should pay for such loss in compensation. Campfens suggests that soft laws lack present-day morality to deal with such issues.^{Footnote 77} This comment illustrates the temporal and spatial nature of morality: legislation as it exists today protects the good faith purchaser in certain jurisdictions, and it is physical presence in such a jurisdiction that protects such an owner. This only serves to further highlight the complexity of relying on a moral claim.^{Footnote 78}

THE CLAIMANT VOICE

In this movement toward the invocation of morality to achieve a fair and just solution, morality appears to have become a substitution for justice in this context without necessarily having an understanding of what this means for those who seek a fair and just resolution of their claims. This is an important absence from the consideration of the efficacy of morality as a driver for the fair and just solution. The Washington Principles speak of fair and just solutions. The Dutch and UK Restitution Committees speak of moral claims. Scholars suggest a generalized conception of morality as justification for successful restitution claims. The key protagonist, however, in all of these discussions has not been heard on this issue; the claimant voice has not entered into the debate. What does the claimant expect and require when seeking a return of their claimed property? An exploration of the claimant’s voice may lead to further understanding about fair and just outcomes and the role that morality should play in the claimant’s pursuit of their claims.

In Campfens’s edited collection of essays exploring the issue of the phrase “fair and just” in the Washington Principles, three interviews given by claimants of Nazi-looted art are reported, with the aim of determining their view of justice in the pursuit of their claim.^{Footnote 79} These interviews provide an important introduction into the claimant view of justice as it relates to the fair and just solution. For purposes of this article, these claimant narratives test the applicability of morality as a marker for such a solution. For them, the manner in which they and their claims are treated is important. The concept of morality as a basis for entitlement, whether in terms of superiority of their claim due to the circumstances of their loss or in terms of the “right thing to do” does not figure prominently in the discussion. Instead, echoes of procedural justice and reconciliation are heard.