Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.
*Lucas Felipe Cabral de Aquino & **Marcílio Toscano Franca Filho
1 Introduction
The importance of religious cultural heritage has been recognized by several international organizations, such as UNESCO, through the 2010 Statement on the Protection of Religious Properties within the Framework of the World Heritage Convention; and the General Assembly of the United Nations, via Resolution n. 55/254. Besides speaking only to a specific religious community, these cultural goods are also relevant to humanity’s cultural identity.
However, despite of its relevance, it is difficult to find a proper conceptualization of religious cultural heritage, distinguishing it from the “secular” cultural heritage, which creates barriers to its effective protection and promotion, especially when, besides the traditional dangers to cultural heritage— such as depredation, theft, illicit traffic, poor preservation—new challenges arise from the consequences of climate change and the rise of religious intolerance. Given its intrinsic relation with religious practices and manifestations, international and domestic norms must delineate a special protection system able to consider its peculiarities. To privilege historic, artistic, and technical criteria when dealing with religious cultural heritage is to relegate to the background the distinctive mark of these goods: their sacredness and their relationship with the active life of the religion.
In the present work, we aim to present an initial debate towards the conceptualization of religious cultural heritage, understanding that it is closely dependent on the definition of variable ideas, such as what is “religion” and what is “sacred”. It is certain, however, that religious cultural heritage is composed of a diverse series of sacred places, monuments, buildings, works of art, rites, traditions, costumes, practices, and many other forms of tangible and intangible goods.
2 Brief consideration on “cultural heritage”
Different legal diplomas give different meanings to “cultural heritage”. They can be complementary; or represent the transformations in the relationship between society and its heritage. Yet there always is a common point: the capacity to express cultural values while identifying their singular and distinctive characteristics (Lemme 2000, 610).
The shift from the idea of cultural property to a broader sense of cultural heritage allowed the cultural goods protected by the 1972 World Heritage Convention to be “understood as the inherited patrimony of culture, inclusive of the intangible heritage and living culture, and its relation to socio-economic aspects.” (Francioni 2020, 251) In this sense, article 1 of the 1972 Convention utilizes the “exceptional universal value” as the distinguishing mark of cultural heritage. Despite efforts made by the World Heritage Centre to clarify the criteria for inclusion on the World Heritage List, difficulties persist in including cultural heritage of Latin American, African, and Asian-Pacific countries,11 On the subject, see: Lucas Lixinski, International Heritage Law for Communities: Exclusion and Re-Imagination (Oxford: Oxford University Press, 2019). since much of its heritage is of intangible nature (Blake 2020, 347). This led to the elaboration of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage. Considering the peculiarities of intangible heritage—both in terms of its characteristics and of its protection—the 2003 Convention conceptualizes it as practices, representations, expressions, knowledge, and techniques recognized by a particular group, community or individual as an integral part of its cultural heritage. By doing so, the 2003 Convention also serves as a paradigm for the protection of cultural diversity, adopting a very broad concept capable of including different forms of “traditional” cultural manifestations. Thus, the UNESCO Conventions serve as International Cultural Heritage Law frameworks: one based on the “exceptionality” criteria; and another related to the peoples’ identity.
In this sense, Nathalie Heinich (2010/2011, 122-125), in an axiological analysis of cultural heritage, outlines five fundamental values that are immanent in the selection of goods that could receive such qualification: authenticity, antiquity, rarity, beauty, and meaning. Each of these values—except for rarity—can be associated to a broader “value register”: antiquity, to the “domestic” register, translating a notion of respect, belonging, trust, and concern with transmission; authenticity, to the “purifying” register, linked to integrity and connection with origins; meaning, to the “hermeneutic” register, implying the search for signification; and beauty to the “aesthetic” register, connected to notions of art. Heinich also states that the “value registers” can be separated into two “value realms”: the “singularity realm” and the “community realm.” Since rarity does not fit into any “value register”, it and its opposite, multiplicity, serve as “orthogonal values” that are capable of reinforcing or weakening other values. Therefore, a “singular realm” values what is rare, reflecting the notions of the 1972 Convention; while a “community realm” values the original artistic manifestations linked to the memory of a certain people, which its members are concerned with transmitting to future generations, reflecting the notions of the 2003 Convention. Thus, we understand that the values listed by the author—authenticity, antiquity, rarity, beauty, and meaning—are adequate for the analysis undertaken in the present work.
3 “Religiousness” from the point of view of Cultural Heritage Law
Religious cultural heritage can be understood as the set of tangible and intangible goods—taken individually or in groups—relevant for at least one religious group. Once its importance relies in its sacred function, distinguishing it from “secular” cultural heritage (Faria 2015, 595), its defining core is sacrality, given its exclusion from “profane” uses and its destination to public or private religious cult (Menis 1994, 35). Since there is a link between “religious cultural heritage” and “religious manifestation”, it is necessary to delineate the latter for the understanding of the former.
From a theoretical intertwining between Peter Berger’s sociological theory of religion and Viktor Frankl’s existential analysis, Thiago Aquino (2023, 8) conceptualizes religion as being
“a worldview, a nomos that expresses itself through a belief in an instance of cosmic evolution that would transcend the reality of ordinary experience and that is not subject to rational apprehension. The purpose of this belief would be to make the human being conscious, through the symbol referring to this greater reality, placating both the terror of emptiness and the restlessness about the enigmas and the final meaning of human existence.”22 Originally: “uma cosmovisão, um nomos que se expressa por meio de uma crença em uma instância da evolução do cosmos que transcenderia a realidade da experiência ordinária e que não é passível de uma apreensão racional. A finalidade dessa crença seria a de tornar o ser humano consciente, por meio do símbolo referente a esta realidade maior, aplacando tanto o terror do vazio quanto as inquietações acerca dos enigmas e do sentido final da existência humana.”
The religious cultural heritage relates to manifestations that express a transcendental worldview imbued with symbolic meaning that guide individuals and provide a deeper understanding of existence. From this, three conclusions are derived: (i) not every good belonging to a religious group is a cultural good; (ii) not every cultural asset belonging to a religious group is cultural heritage; and (iii) not all cultural heritage belonging to a religious group is religious cultural heritage. At first glance, the third conclusion may seem contradictory, however it becomes necessary when not adopting self-definition as a defining mark of religiosity. Thus, only those assets that translate religiosity in combination with aesthetic and historical elements would be accepted as “religious cultural heritage” (Tsivolas 2014, 39-49). For example, if a religious order manages a museum containing a painting with no sacred content that was made by a major historical artist, this work of art may be cultural heritage, but not religious cultural heritage.
Moreover, the religious character does not result in the exclusive enjoyment by the religious community. As said by Maria Cornu (2022, 50):
“These assets of collective interest, when designated as elements of cultural heritage, are more closely aligned with extra-commerciality. They are public things, in the sense that they belong to everyone, beyond the idea of being objects of property. This constitutes a collective heritage, and public cultural spaces such as museums are particularly appropriate ‘enclaves’ for housing these things outside of commerce.”33 Originally: “Ces biens d’intérêt collectif, lorsqu’ils sont désignés comme éléments du patrimoine culturel, sont davantage postés du côté de l’extra-commercialité. Ils sont des choses publiques, en ce sens qu’ils appartiennent à tous, au-delà de l’idée qu’ils sont des objets de propriété. C’est un patrimoine collectif, et les lieux publics culturels tels que les musées sont une ‘enclave’ particulièrement appropriée pour accueillir ces choses hors commerce.”
In that sense, Theodosios Tsivolas (2014, 40-43) argues that religious cultural heritage should be glimpsed from the trinomial faith-memory-aesthetics. Besides being a testimony of sacredness, religious cultural heritage is also a symbol of religious memory, translating a complex physiognomy that deciphers changes in religious practices over the centuries. Conserving a religious cultural asset has as a direct consequence the maintenance of distinct layers referring to the unique moments in the society’s identity construction. The plethora of religious beliefs and dogmas translated in the symbols incorporated into a given cultural assets have an ambivalent function: it is essential for its devotional purposes, since they are manifestations of the values and norms sustained by religion; while also allowing the “secular enjoyment of religious beauty”, since religions have historically served as a source of inspiration and support for art (Tsivolas 2014, 43-46).
4 Sacrality as an immanent value of the religious cultural heritage
International Law seems to recognize, even in tangible heritage, intangible elements that deserve protection. In doing so, Cultural Heritage Law is not only concerned with the cultural object or the manifestation itself, but with the relationship between the cultural heritage and the people’s response to it (Tsivolas 2017, 20-22). Therefore, by protecting a certain religious cultural heritage, whether tangible or intangible, one is protecting the transcendental and symbolic worldview that guides the individuals of a certain religious group. In other words, one protects the sacredness of that good and the way in which individuals of a given religious community relate to it.
Thus, it is possible to affirm that, in addition to the values listed above—authenticity, antiquity, rarity, beauty, and meaning—sacredness is an immanent value of the protection of religious cultural heritage. This leads to the following problem: how can Law define what is sacred? We do not aim to make a taxonomy of sacred objects, practices, and sites, since sacredness manifests itself in different ways among different religions. However, some considerations are necessary.
The “sacred” is the term by which the individuals tries to translate what is most essential in their religious experience (Ries 2017, 71). According to Mircea Eliade (Eliade1959, 10), the simplest definition of the sacred is precisely its opposition to the profane, which, according to the author, allows the individual to become aware of the existence of the former. The fact that the sacred manifests itself to the human being is called “hierophany”, which includes in its meaning the entire religious phenomenon (Ries 2017, 72). From the inherent scope of hierophany derives its heterogeneity, which translates the broad scope of tangible and intangible goods that can be considered religious cultural heritage, since “each of these categories has its own morphology that reveals, at the same time, a modality of the sacred and a specific situation of the human being in relation to the sacred” (Ries 2017, 73).44 Originally: “cada uma dessas categorias possui uma morfologia própria que revela, ao mesmo tempo, uma modalidade do sagrado e uma situação específica do ser humano em relação ao sagrado.” If the simplest of objects comes to be regarded as a hierophany, even though it retains its former physical properties, it is transubstantiated in the eyes of the religious person into something that reveals a connection with that particular cosmological view (Eliade 1959, 12). As Eliade (1959, 12) states, “the sacred tree, the sacred stone are not adored as stone or tree; they are worshipped precisely because they are hierophanies, because they show something that is no longer stone or tree but the sacred, the ganz andere.”
Eliade also distinguishes three elements within the structure of hierophany: (i) the natural object; (ii) the transcendental reality; and (iii) the mediating object clothed with sacredness. From the latter, emerges a symbol that acts as a “mediator between the unattainable transcendence of God and man”, so that “the Sacred symbolically transfigures the reality of the world of man” (Greco 2009, 61).
Therefore, when we argue that sacredness is an immanent value of religious cultural heritage, we aim to affirm that, allied to the protection of what is valued, before a community, for its authenticity, antiquity, rarity, beauty, and meaning,55 We chose to differentiate between the “meaning” value and the “sacred” value because we believe that the former translates the historical perspective contained in the religious cultural heritage; and the second, the properly religious perspective of the cultural good. it also protects what is most essential for a given religious community: the relationship with the transcendental figure.
5 Final considerations
From what has been previously discussed, we can conclude that one cannot simply define religious cultural heritage as the heritage pertinent to a specific religious group, given that the notion of “religion” is mostly variable. Thus, we propose the idea that religious cultural heritage is related to manifestations that express a transcendental worldview imbued with symbolic meaning that guide individuals, while providing a deeper understanding of existence, based on Aquino’s analysis of Berger’s and Frankl’s theories.
This leads to the understanding that not all cultural heritage belonging to a religious group can be classified as religious cultural heritage, and that the special protection given to this cultural heritage seeks to protect the good itself, its sacredness, and the way in which individuals of a given religious community relate to it. A move towards this direction would lead Cultural Heritage Law to recognize a plethora of tangible and intangible religious goods of marginalized religious denominations, besides leading to a better preservation status of the already recognized religious cultural heritage.
The present paper was written with the support of the Coordenação de Aperfeiçoamento de Pessoal de Nível Superior – Brasil (CAPES) (Brazilian Coordination for the Improvement of Higher Education Personnel).
* Lucas Felipe Cabral de Aquino
Master’s student in the Postgraduate Program in Legal Sciences at the Federal University of Paraíba (PPGCJ-UFPB). Bachelor of Laws from the Federal University of Paraíba (2018-2022). Researcher at the International Laboratory for Research in Transjuridicality (LABIRINT).
**Marcílio Toscano Franca Filho
Arbitrator in the World Intellectual Property Organization Arbitration and Mediation Center (WIPO, Geneva/Singapore), in the Court of Arbitration for Art (CAfA) and in the Latin American Arbitration and Mediation Center (LatCam, Asunción). Former arbitrator in the MERCOSUR Tribunal (Asunción). Professor of Public Law at the Federal University of Paraíba (UFPB, Brazil) and Prosecutor General at the Prosecution Office at the Audit Court of Paraíba (MPC, Brazil), where he chairs the Taskforce on Cultural Heritage Protection. Member of the UNIDROIT Working Group on Art Collections. Visiting Professor in Turin, Pisa and Ghent, Research Fellow at the Collegio Carlo Alberto (CCA, Turin) and Calouste Gulbenkian Fellow at the European University Institute (EUI, Florence). Member of the Executive Council, and the International Law Commission on Cultural Heritage, International Law Association (London, United Kingdom). Member of TIAMSA – the International Art Market Studies Association; the Instituto Hispano-Luso-Americano de Direito Internacional (IHLADI); the Istituto Nazionale per il Diritto Dell’arte e dei Beni Culturali (INDAC, Italy), and the 1995 UNIDROIT Convention Academic Project (Rome, Italy).
