Legal Evolution of Cultural Heritage: Definitions and State Functions
The Legal Evolution of Cultural Heritage Concepts
The phrase “cultural heritage” is the result of a slow and profound change in legal language, shifting towards a more extensive and inclusive definition. Previously, the narrower focus on “art historical” interests struggled to serve this unifying function, leading to its decline in prominence.
However, recent Spanish legislation concerning the constitutional development of this area introduced confusion with the title adopted: “The Spanish Historical Heritage.” This name is inconsistent with our legal tradition and represents a definite step backward in linguistic accuracy.
Therefore, to provide a logical interpretation of these terms, we must understand the following distinctions:
- Cultural Heritage: Under the Constitution, this should be considered a residual concept designed to cover new aspects of material culture (e.g., language, ethnographic goods, etc.) not included in the more restricted traditional concept of “artistic heritage.”
- Historic and Artistic Heritage: This term refers to those assets traditionally framed within this body, specifically mentioned by the Constitution (e.g., museums, libraries, archives).
Functions of Public Authorities Regarding Cultural Heritage
Article 46 entrusts the government with two primary tasks: ensuring the preservation and promoting the enrichment of cultural heritage.
Conservation
Conservation is the foundational action for heritage protection. It involves planning and regulatory techniques, including police powers and public service initiatives.
Although conservation is not the only function developed by law, it remains true that the focus of legislation has historically been located primarily in this role. The rules themselves betray the great weight of the word “conservation” in legislative history and the relative lack of mention of other functions.
Enrichment
The current Constitution, continuing the line opened by the 1933 Act (which introduced the word “enhancement”), also emphasizes the function of enrichment of cultural heritage.
While enrichment certainly seeks to restore what was lost, the term demands more than quantitative targets. Enriching heritage must be understood as a qualitative feature, consisting of making cultural heritage accessible for the enjoyment of the present generation.
The preamble to the Heritage Act clarifies this perspective:
“Historical heritage is enhanced and better defended the more the people who live with it value it.”
“The items that constitute heritage have been revalued due solely to social action meeting needs derived directly from the appreciation that citizens themselves have developed.”
Thus, the word “enrichment” involves the requirement for public authorities to implement real, positive measures aimed at enabling the enjoyment of cultural heritage.
We are therefore faced with a dynamic and refreshing design for heritage protection. Far from merely preserving the past, this approach seeks to enrich the present by permeating today’s society with cultural values, offering them as a spur to cultural creation. The term “enrichment” in our Constitution reflects a significant change in the evolution of the state’s role in relation to culture.