Protecting built heritage and cultural landscapes through organic law

law_blurred_gavelOrganic law is defined as the fundamental laws of a country, such as a constitution. Theoretically, all laws in a country should therefore be derived from organic laws. The United States has one of the shortest and oldest constitutions in the world, but while short can equate to simple and perhaps easier to administer, it also means that there exists the possibility that some rights that humanity now considers to be fundamental, may be absent from older organic laws.

Case in point: heritage. UNESCO has declared that heritage is a fundamental human right. The US Constitution and its amendments make no mention of heritage, culture, or patrimony, although I supposed the phrase “the pursuit of happiness” from the US Declaration of Independence could broadly be construed to apply to cultural heritage as it influenced the creation of the 5th and 14th amendments. Interestingly, some countries have incorporated the recognition and protection of cultural heritage, including built heritage and cultural landscapes, into their constitutions. Croatia’s constitution recognizes built heritage, as does the Republic of Kosovo and Brazil. As far as I am aware (please tell me if this is not correct!), there has not been any sort of systematic analysis of which countries incorporate the identification and protection of heritage in their constitutions and how this is implemented. Without a global survey, my assumption is that what may be unique about Brazil’s constitution is the specificity with which heritage is defined (both tangible and intangible) and the required involvement of the community. Article 216 of the 1988 Brazilian Constitution (translated, with 1996 amendments) is where this area is addressed:

Article 216. The Brazilian cultural heritage consists of the assets of a material and immaterial nature, taken individually or as a whole, which bear reference to the identity, action and memory of the various groups that form the Brazilian society, therein included:

1. forms of expression;
2. ways of creating, making and living;
3. scientific, artistic and technological creations;
4. works, objects, documents, buildings and other spaces intended for artistic and cultural expressions;
5. urban complexes and sites of historical, natural, artistic, archaeological, paleontological, ecological and scientific value.

Paragraph 1 – The Government shall, with the cooperation of the community, promote and protect the Brazilian cultural heritage, by means of inventories, registers, vigilance, monument protection decrees, expropriation and other forms of precaution and preservation.

Paragraph 2 – It is incumbent upon the Government, in accordance with the law, to manage the keeping of the governmental documents and to make them available for consultation to whomever may need to do so.

Paragraph 3 – The law shall establish incentives for the production and knowledge of cultural assets and values

Paragraph 4 – Damages and threats to the cultural heritage shall be punished in accordance with the law

Paragraph 5 – All documents and sites bearing historical reminiscence to the ancient communities of runaway slaves are protected as national heritage.

Other articles in the constitution specifically task all levels of government with the protection of tangible and intangible heritage. Technically, the failure of some level of Brazilian government to protect heritage would therefore be an unconstitutional act. Moreover, what appears to make Brazil’s constitution unique is the requirement of government to “cooperate with the community” in identifying, protecting, and promoting heritage of all forms. The ramification of this simple phrase is profound because it implies that experts need to be consulting as equals with most stakeholders.

In speaking with representatives from IPHAN (National Institute of Historical and Artistic Patrimony — the federal agency charged with heritage protection in Brazil) recently, they explained that perhaps the administrative law in Brazil that is tasked with the identification and protection of built heritage may not actually be constitutional because this law fails to adequately involve communities.

To be fair, most, if not all, countries in the world that constitutionally and legislatively protect built heritage also fail to involve the community in regulatory processes to any significant degree. For instance, much literature exists on the failure of the United States to incorporate community participation in the regulatory identification and protection of heritage. (And, no I’m not talking about the ubiquitous use of public meetings or the Section 106 process that fail to offer genuine modes of participation — I mean full-on participation of communities as equals with those who hold power in these regulatory processes; see the rest of my web site for an in-depth explanation.)

What is intriguing about Brazil is that the community element of heritage identification and protection is constitutionally defined, which means that a mechanism exists to actually implement this idea, even if it is not currently being done. Even this small step puts Brazil far ahead of most countries in at least theoretically balancing power between civic and civil experts in the recognition and treatment of built heritage and cultural landscapes.

Leave a Reply