Legal Nature of Cultural Property in Spain
Legal Nature of Cultural Property
The list of measures that allow public authorities to comply with designated positive tasks is wide and varied. Among these measures, two are basic and general. A primary one, most served by legislation, is to guarantee knowledge of heritage. The other baseline, mainly with respect to architectural and monumental heritage, is that of “integrated rehabilitation.” This policy is not only an avenue to preserve heritage but also to enrich it, ensuring its fruition from a cultural perspective, as a living element in today’s society’s needs.
Legal Nature of Cultural Property
The phrase “regardless of their legal status and ownership” in Article 46 immediately transmits a very clear idea: that the conservation and enrichment functions are ahead of the rights and powers inherent in the legal regime of the assets supporting the cultural values and, therefore, inherent to the ordinary status of private property. That is, the Constitution does not opt for an estate, publicly owned or otherwise special formula. It prefers a more subtle form that we will expose:
Very briefly, it should be noted that in regard to property belonging to the Administration, the authors are in favor of considering them as public property. In the case of privately owned cultural property, we find that the design breaks the Romance of private property because of the social function it is affected by. However, these doctrinal expressions are never quite satisfactory, since they need different dogmatic structures depending on who the holder is to explain the same phenomenon. Article 46 states that the members of cultural goods are subject to a dual legal system: that of conservation and enrichment, and also that which they may have as things susceptible to public or private ownership, this second scheme subordinate to the first.
The nodal element of these constructions lies in the dissociation of *thing* and *asset*, which is based on the idea that the same hardware (*which*) can affect various goods or legally protected interests, among which are, as intangible interest, the cultural one. This cultural property, destined for collective fruition and insusceptible to ownership, constitutes a uniform legal status subject to a specific legal regime. Public authorities have the necessary powers to ensure their preservation and enhancement, which are prerequisites for collective enjoyment. The impact on the “thing” for other legally protected interests, also fundamentally of economic content that is specified in the scheme pertaining to this subject, can lead to collisions between the two regimes. In almost all cases, these are resolved by giving precedence to collective enjoyment over economic profits.
An approach to “modern” about the legal status of cultural heritage, as it is exposed not only by the Constitution but somehow, is required by it. The Constitution makes no explicit link between culture and heritage and the public domain. This lack of connection of cultural heritage in the public hand wielded the estate of, is a coherent position, state-owned land as the legal system *per se* does not guarantee or enriching conservative function.
In addition, in relation to cultural property that is a private object, the public interventions of this kind of property designed to guarantee the aforementioned functions cannot be justified satisfactorily from the technical administrative constraints, and by its property settings as “public interest”, or, finally, from the concept of “property functionalized.”
Also, do not forget that there are cultural goods that are usually insusceptible to public or private ownership because they do not manifest themselves through “things” such as languages, or ethnographic heritage, which would lead us once again to a new theoretical difficulty.