Cultural heritage law: a new branch of legal science

Recently, interest in the protection of cultural heritage has gained a place in the constitutions of various countries and complementary norms – of local or community law – They appeared in large numbers with the aim of protecting the use, enjoyment, exchange, preservation, dissemination and management of cultural assets.

In our country, the Magna Carta of 1934 laid the foundations for the defense of the national cultural heritage by establishing the social function of property as a principle (Article 113, Clause XVII) and by defining the concurrent jurisdiction of the Federation and the States to protect natural monuments and monuments of historical or artistic value, which might prevent Evasion of works of art (Article 10, 3).

With the advent of these very important constitutional innovations, many legal texts on the subject began to appear in our legal system, which began to be studied by administrative doctrine, generally in chapters on police power and state interference in private property.

With the release of the Magna Carta of 1988, the highest step in the normative development of the protection of cultural goods in our country has been reached, since Lex Maxima, in Title VIII (“Social System”), Chapter III (“On Education, Culture and Sports”), Section II (“On Culture”), in Articles 215 and 216, define the concept, scope, tools and responsibilities for the protection of the Brazilian cultural heritage.

Since then, and with the formation of a greater awareness of the citizen, he turned to the search for confirmation of national identity and a better quality of life guided by the values ​​of community solidarity, the matter gained importance and several standard diplomas appeared whose content was. intertwined with the most diverse branches of law, such as criminal (crimes stipulated in Articles 62 to 65 of Law 9605/98); tax (deductions payable to owners of registered real estate and sponsors of cultural projects provided for by Law No. 8.313 / 91); civil (the social function of property – art. 1228, (1), Criminal Code); – Collective civil procedures (Law No. 7347/85 amended by Law 8078/90); Administrative (Articles 72 to 75 of Decree 6514/2008); International (Article 6 of Decree 7.107/2010), just to mention some examples of the incidental nature of the matter.

In this scenario, knowing that environmental protection (summer meaning) includes not only its natural aspects (water, air, animals, plants, etc.), but also assets that are part of the urban, labor and cultural environment, from the 1990s onwards, the defense of Brazil’s cultural heritage – Already mentioned from time to time in administrative law works – It has become part of the best handbooks of environmental law, occupying its own chapters, although in general they are synthetic and not very deep.

It is noteworthy that internationally, from the 1990s onwards the specialized branch initially called Cultural Law also emerged. [1], from which the Cultural Heritage Law derives.

In our country, the most systematic doctrinal approach to this topic and legal clashes in order to implement the rules relating to the preservation of cultural heritage, resulting mainly from the actions of the Brazilian Public Ministry, in a scenario with the height of industrial and economic growth that gave rise to large numbers of disputes, the formulation of doctrinal decisions important on this issue, and led to the emergence of specific national jurisprudential works in this regard. Within the scope of this development, there has been the identification and organization of guidelines for the protection of Brazilian cultural heritage, a procedure essential for the establishment of a firm base of guidelines for the study and application of standards related to the subject.

Today, as José Luis Alvarez Alvarez explained, the time has passed when it was necessary to justify the existence of a special legislative treatment of this group of cultural goods. [2]. Both national legislation and international organizations proceed from the idea that this heritage, its preservation and growth are essential to society and its individuals and require special regulations, adapted to the nature of the assets that compose it, and what began in the few countries, the most educated or advanced, has already become a global concern.

According to Andre Franco Montoro [3], the dynamics of economic and social life and the changes that take place lead to new realities and situations that affect people and their relationships. These situations eventually lead to the generation of new problems and the need to formulate “new rights”, from there appear grafts in the tree of legal sciences, such as environmental, consumer, cybernetic, etc.

Fabrizio Lemy knows that cultural heritage law is born when people realize who they are [4], from its roots, and feels the need to defend the testimonies of its history.

In the same perspective, Eduardo Vera-Cruz Pinto states that cultural heritage law is an expression that is identified with a set of legal rules, and corresponds to a general sense of respect for the values ​​that these protected goods or objects symbolize, and whose legitimacy and efficacy it seeks in the established communication , by thinking, with society [5].

We also had the opportunity to emphasize in our recent work on this topic [6]:

“For all this, in view of the conflicts that have arisen on the national territory due to this awareness of the citizen and the consequent need for specific study on a field little explored before, the Brazilian Cultural Heritage Law, which can be considered a specialized branch of public law, has emerged, consisting of rules and the principles that regulate and seek the protection, preservation, enjoyment, dissemination and management of cultural goods in our country.”

Given its diverse scope, cultural heritage law needs a permanent dialogue with other sciences, such as history, architecture, archaeology, conservation and restoration and anthropology, in a collaborative, open and enduring interdisciplinary exchange, in order to achieve a more efficient and adequate protection of cultural goods.

To reach its full effectiveness, this specific branch of law must be known by all agents involved in the protection and management of cultural assets, even if they do not have specific training in the legal field.

Finally, cultural heritage law, in addition to science, is a tool oriented to the protection of living reality, which is always at the crossroads between memory and creativity, allowing the rooting of tangible and intangible cultural goods, the heritage transmitted between generations and from memory, ensuring the continuity of the values ​​of our society.