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Authors
Supervisors
Verdussen, Marc
Abstract
(en) The doctoral thesis attempts to build a legal regime for the right to culture, which is an individual right with an important collective dimension. The aim of the doctoral thesis is to enable the right to culture to exert all its effects. The fog that still veils the right to culture, despite its fundamental importance and its growing engagement in political discourse, has fuelled a desire, which is the source of my doctoral thesis, to clarify the sources, the content, the obligations and the legal guarantees of the right to culture. To conduct a rigorous definition of the legal right to culture, three majors themes were chosen : the arts, the cultural heritage and the lifelong education. The research has mainly been devoted to constitutional law and international human rights. However, legal evolutions and problems have been clarified and examined by using an interdisciplinary approach, including the disciplines of legal theory and political philosophy. The whole thesis is devoted to the demonstration that the right to culture is a legal, an effective and a legitimate reality. Two hypotheses underlie the doctoral thesis. The first central hypothesis is that the right to culture, if defined, can be considered as a fundamental right because it comprises the eight constitutive elements of every fundamental right (sources, object, democratic values as fundaments, prerogatives, obligations, debtors, titulars and justiciability). The right to culture it entails a full legal regime that implies precise obligations for the State, which are guaranteed by concrete mechanisms. The right to culture is related to a precise content: the diversity of cultural expression and cultural heritage. This right implies concrete prerogatives: the right to artistic freedom of expression; the right to conservation, development and diffusion of culture; the right to access to cultural life and to cultural information; the right to take part in cultural life; the right to freedom of choice in cultural matters; the right to participate in the elaboration on and the implementation of cultural policies. This right can be hold against its debtors. It deploys itself at different levels of effectivity and of justiciability. The second central hypothesis is that the construction of the legal regime of the right to culture and the legitimacy of this right depends on its capacity to manage a permanent balancing between three of its elements which appear to be antagonistic in nature: on the one hand, artistic freedom, and on the other, equality and participation in cultural life. Especially in the theoretical justification of cultural policies, in the mutual enrichment between the different sources of the right to culture, in the definition of the object of the right to culture and in the definition of the elements of this right, this balancing occurs. Two ideas are determining for the whole doctoral demonstration. The first one concerns the definition of the right to culture’s legal regime on the basis of a conception of « culture » . This conception is limited to the diversity of cultural expressions and heritages. This first stance is explored by means of five methodological steps. First, a philosophical exploration of the concept of culture has authorized to discover that this concept has to be understood mainly in reference to the work on meaning that culture build and embodies. Subsequently, the peculiar conditions under which the legal system can apprehend the concept of culture have been identified: the legal concept of culture has to be understood in reference to the embodiment and the materialization of the work on meaning constructed by the « culture » in the anthropological sense of the word. Afterwards, on the basis of a historical analysis of the right to culture’s interpretation, it was observed that, in international law, the interpretation that is sometimes constructed, i.e. what the right to culture concerns, has been taken outside the limits of the legal systems. Indeed, the right to culture, after being set free from a very limited and academic approach of culture by an opening to the diversity of cultural expressions wherever they come, has been constructed in connection with cultural identities. Next to this analysis, this conception of the right to culture was evaluated from a critical point of view, and eventually rejected,, because its fundaments are too weak and because it denatures the right to culture and poses a threat to its effectiveness. Cultural identity is a particular dimension of the right to culture but cannot be its main object. The right to culture is concerned with the protection and promotion of cultural identity even if protection and promotion of cultural identity is not the actual content of the right. Finally, a definition of the right to culture’s object has been developed in connection with the diversity of works, methods, spaces and practices which express, from a critical and creative point of view or as a heritage to transmit, the work on meanings operated by culture in the anthropological sense. This apprehension of the right to culture can disappoint those who see in this right a « magical » right, capable to touch culture in its complexity and to solve all the problems posed by the multiplicity of cultural identities and by the so called « Clash of Civilizations ». But this restriction in the definition of the right to culture’s object is in fact a necessary condition for deploying it in the legal world. Here we come to the second determining stance, which concerns the identification of the effectiveness and of the justiciability of the right to culture, de lege lata et de lege ferenda. Constructing this right in connection to the diversity of cultural expressions and heritages lets us identify the prerogatives that the right to culture implies and the obligations that can be recognized for its debtors. This definition of the right to culture has enabled us to define this right as a justiciable right, i.e. as a right that individuals can seize and that judges can use in their legal reasoning. The justiciability of the right to culture varies of course from one element to another. But, the important finding is that all elements of this right could be recognized as justiciable. For certain elements, as the right to artistic freedom, the right to culture benefits already from “direct effect” in a narrow sense. This is also the case for the right to access to cultural diversity without barriers. Other elements of the right to culture have been contextualized in the legal system in such a degree that they could benefit from direct effect sensu stricto. This contextualisation is visible in for e.g. the right to be protected from abuses of copyrights when using artistic freedom: this particular right is so detailed in Belgian law that a judge already asserted that it has a direct effect, without conflicting with the separation of powers doctrine. Moreover, de lege feranda, a whole range of elements of the right to culture could be recognized as entailing direct effect sensu stricto, quod non today. The other elements of the right to culture donot have “direct effect” and benefit only from a “direct effect” in a broad sense.. For these elements, the standstill obligation is the determining factor because it indicates the compatibility control realized at the “contentieux objectif” by authorizing the judges to compare the litigious norm with the right to culture as it is materialized in Belgian law. Even if the right to culture is defined as it is suggested in the doctoral thesis, it remains a weak right and its effectiveness is far from being confirmed. This a-typical and ambivalent right can only be subjected to legal rationality when permanent conceptual efforts to apprehend this right in a legal way are made. However, the situation isn’t hopeless for all. Firstly, the right to culture opens great possibilities to defend, at the legal and philosophical levels, cultural policies and ways to rethink the conflict between economic law and cultural policies and laws. Furthermore, in a more positive way, the right to culture opens up new ways to rebase and re-legitimate the public law on culture and the cultural policies. These policies could indeed, thanks to the substantial and procedural elements of the right to culture’s legal regime, get a new lease after being out of steam for a long time.
Affiliations
  • Institution iconUCLouvainDROI - Sciences juridiques

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Romainville, C. (2011). Le droit à la culture, une réalité juridique. https://hdl.handle.net/2078.5/69301