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Advances in Social Sciences Research Journal – Vol. 9, No. 9
Publication Date: September 25, 2022
DOI:10.14738/assrj.99.13035. Ramos, J. L. B. (2022). The Protection of Movable Cultural Heritage. Advances in Social Sciences Research Journal, 9(9). 143-162.
Services for Science and Education – United Kingdom
The Protection of Movable Cultural Heritage
José Luís Bonifácio Ramos
GENERAL CONSIDERATIONS
The problems around cultural assets feature increasingly on the agenda. Given the importance
of preserving memory, there is a corresponding need to protect tangible assets, the true
witnesses of the past. Thus, the protection mechanisms that have emerged brought about a Law
of Cultural Heritage designed to safeguard the preservation, conservation, restoration,
protection, theft and plundering of cultural assets.
When we consider the various mechanisms, consolidated in prominent legal regimes, we
encounter not only cultural nationalism and internationalism, the importance and adaptability
of cultural preference, but also export restrictions ranking among the key means of protecting
cultural assets.
THE CULTURAL HERITAGE AS A CORE REFERENCE
Therefore, having set out the study’s underlying assumptions, let us advance somewhat deeper
into each topic listed above. As regards sharing, we should recall that laws represent human
practices that therefore do not address man in isolation. In other words, this constitutes a social
phenomenon.1 Our interrelationships are extremely relevant to the Law; all the more so as the
entirety of the social is normative as is its direct and immediate constituents.2 Therefore, we
may quite naturally understand that events related to Cultural Rights presuppose something
worthy of sharing and for sharing with someone. Should we so wish, we share these with others.
In this sharing, the interrelationship inherent to Cultural Rights, and even to Culture as a whole,
emerges. In fact, should Law be understood as a relationship between subjects, not only within
the framework of Obligations but also in other fields of Civil Law or even in the domain of Public
Law itself, and in accordance with the perspective that there is no law without a subject, it is no
less true that this same Law needs memory.3 Furthermore, it is not only the trial that requires
a reconstruction of facts, the fight for Memory is intrinsic to Law, given that, according to some
authors, following the anarchy of norms, the new law plays out against a kaleidoscope of past
images.4
In fact, whenever calling upon the past, we summon the cultural asset as the lead witness.
Indeed, in contrast to the ephemeral nature of human life, cultural assets bear witness to the
past. This does not happen through any indirect account, subject to interpretations ever- 1 On this aspect, Oliveira Ascensão recalls the motto ubi ius ibi societas. Cf. O Direito: Introdução e Teoria Geral, 13th
ed., Coimbra, 2005, p. 23.
2 In this sense, João Baptista Machado emphasises human conduct as meaningful conduct and the normative as a
constituent of the social. Cf. Introdução ao Direito e ao Discurso Legitimador, Coimbra, 2007, pp. 22 et seq. 3 On this aspect, Paulo Ferreira da Cunha, Iniciação à Metodologia Jurídica: Memória, Método e Direito, 2nd ed.,
Coimbra, 2009, pp. 27 et seq.. 4 Cf. Paulo Ferreira da Cunha, Iniciação...op. cit., p. 42.
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Advances in Social Sciences Research Journal (ASSRJ) Vol. 9, Issue 9, September-2022
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debatable to a greater or lesser extent given their inherent subjectivity, but rather because that
asset, as an object of times immemorial, as an object of culture, itself represents a true sample
of the past times we intend to study and interpret. Therefore, this object of culture, this cultural
asset stands out as a true herald of memory.
As such, this object, this cultural asset deserves protection not for aesthetic reasons but rather
because it constitutes a source, a deposit of archaic representations, of historical memories.
Moreover, while up until the early 20th century, it was important to primarily protect
monuments,5 and stemming from the shortcomings of this expression, the usage of several
terms — the artistic object, the historical object, the archaeological asset — subsequently
allowed for recognition of the need to protect various other cultural objects and drawing
particular attention to the importance of movable assets. As a matter of due fact, in the 20th
century this had already become consolidated under the very widely adopted expression – the
cultural asset.6
Furthermore, now as an actual matter of fact, this need to protect cultural assets has brought
together a set of rules collectively enabling the assertion of a significant specialist and
autonomous field. Therefore, more than a Law of Culture, we may perceive a Law of Cultural
Assets that stands out not only as a new branch of Law but also as a field capable of shaking up
traditional and apparently consolidated assumptions. Thus, the Law of Cultural Assets implies
the need to reposition the object of Culture and affirm the centrality of the cultural asset. In
other words, memory, so dear to Law, cannot be detached from the object, that is, the cultural
asset. Moreover, the Law of Cultural Property emerges from the paradigm that presupposes
memory is inherently encapsulated by the object as a cultural asset.
Therefore, should we wish to problematise culture, we cannot do so by ignoring, devaluing or
omitting the cultural asset. It provides the reference framework, the essential aspect of this
sharing. For such reason, there is less importance in inquiring whether we are in an objectivist
or intersubjectivist phase of cultural heritage. Should the cultural asset establish the core
framework of reference for the Right to Culture, this should therefore take centre stage in any
cultural sharing. This explains the pressing need to reflect on the current status of the
mechanisms for protecting cultural assets and, above all, to ascertain their respective virtues
and shortcomings.
However, before advancing with the objective set out above, there are certain aspects that need
clarification. On the one hand, even should we disagree with the idea there is no culture without
its expression through monuments or works of art,7 and therefore recognising the importance
of intangible cultural heritage, it remains no less true that the characteristics differ radically
from those of tangible heritage; especially of tangible cultural assets. As a matter of fact, we may
simply state that the material object of Culture, the material cultural asset, is unique and
unrepeatable. Now, as may easily be grasped, this difference necessarily reflects in the
5 At the beginning of the 20th century, Alois Riegl published a study dedicated to the cult of the monument. Cf. Der
Moderne Denkmalkultus: Seine Wesen und Seine Entstehung, Vienna, 1903, pp. 41 et seq. 6 On the evolution of these terms, in view of the broadness of the term cultural asset, cf. JL Bonifácio Ramos, O
Achamento de Bens Culturais Subaquáticos, Lisbon, 2008, pp. 300 et seq. 7 On this matter, José Barata Moura, “Identidade e Património Cultural: A Questão do Ajuizamento”, no. ed., 2016, p.
10.