Comparative Constitutional Law and Intangible Heritage: Lessons from Latin American Law and Jurisprudence

Abstract

This article critically analyzes the right to intangible cultural heritage (ICH) within the framework of comparative constitutional law, with a particular focus on the recent jurisprudence in five Latin American countries: Brazil, Ecuador, Bolivia, Mexico, and Colombia. It aims to explore the lessons that the jurisprudential formant can offer for comparative constitutional studies on this issue, based on three primary criteria: the human rights approach, legal pluralism, and the relationship between rights and duties. The article emphasizes how the recognition of a fundamental right to ICH can transform both the theory and practice of cultural rights from a comparative perspective. The hypothesis asserts that these cases provide valuable insights into the understanding of the ‘right’ to ICH, especially in terms of its limits and scope. The article is methodologically grounded in the field of comparative constitutional law, engaging with constitutional theory and dogmatics. It is organized into three sections: 1) Framing intangible cultural heritage in Latin American constitutional law; 2) The constitutional jurisprudence on intangible cultural heritage in selected Latin American countries; 3) Shaping the fundamental right to intangible cultural heritage: key elements and features.