A proteção do patrimônio cultural: entre o dever do estado, o princípio da participação popular e os desafios das políticas públicas

Abstract

This dissertation mainly analyses the role of the community's collaboration with the Public Authorities at the promotion and protection of the Brazilian’s cultural heritage, according to the Article 216, §1o of the Federal Constitution. The research uses the hypothetical-deductive method with the objective to investigate the hypothesis that the lack of the community's awareness about the importance of the Cultural Heritage affects its protection in every way: since aspects relating to preservation, to use, just as well as in the jurisdictional fields and the laws that encourage culture. Therefore, the effectiveness of the heritage's protection laws can only reach its full achievement if the population values it, which requires public educational and cultural policies. The argumentative path starts with the studies of the dynamic concept of Cultural Heritage, its associated terms, the beginning of the history that raised some awareness about the need to have protection and the historical and artistical significance. For this purpose, rhis study uses as theoretical framework authors like Aloïs Riegl, Victor Hugo, John Ruskin and Françoise Choay. On account of the importance to comprehend culture on its diferente meanings in a structured way, it adoptsthe Zygmunt Baumann's designation, for which the social sciences embody three different univers du discours: hierarchical concept, differential concept and legal concept. To the analyze of such concepts, the research entered the cultural domains of anthropology, sociology and philosophy, in a way that this elaboration has provided a better comprehension of the multiple meanings of culture, culture's pluralism, the relationship between nature and culture and a deeper analysis of cultural standards. In addition, to understand the concept of culture in the legal world, mainly uses the Cultural Constitution's point of view and the general concept, both being results of Peter Häberle's doctrine, and the anthropological and social dimension categorization. The analyze about the main International Legal Instruments in the fields of Cultural Rights and Cultural Heritage allowed a better hermeneutic of the cultural standards and the cognition of the public obligations, the educational needs and the conceptual enlargement of the cultural heritage in its various implications. From interpretative methods such as the open society of interpreters of the Constitution, systemic and historical-teleological interpretation, it traces a historical perspective of the constitutionalization of cultural rights and protection of Cultural Heritage, in which examines preservationist public policies, the evolution and hermeneutics of concepts related to cultural rights stricto sensu and the level of popular participation along this route. It studies the relation of Cultural Heritage and Environmental Law with the complementary use of the culture concept of Miguel Reale's culturalism, in addition, approaches the principiology of the cultural environment and fundamental cultural rights. From the study on precautionary, judicial and extrajudicial instruments, as well as on PRONAC, SNC, SNPC, the principle of cultural democratization and heritage education has allowed to find harmful effects of the lack of awareness of the population, the need of legislative improvements and the various obstacles and challenges related to the implementation of more efficient cultural policies.