ABSTRACT
Domestic laws provide much of the day-to-day means of caring for cultural heritage. Laws created for the purpose of protecting and caring for cultural heritage represent the interests of the state, providing the means of caring for cultural heritage and in some cases the opportunities for direct participation in the decision-making process, both by experts and the public. Much of the focus of these instruments is on averting harm to the physical cultural heritage, saving objects for the nation and providing access. In the absence of a comprehensive heritage code, general legal principles deriving from areas such as property law or public law may apply in individual cases where the subject matter of the dispute is a cultural heritage place or object but where this cultural heritage falls outside the formal schemes of designation. These principles, on occasions, are ill-equipped to deal with the varied and dynamic nature of cultural heritage or the need to recognise the communities for whom the cultural heritage is important. This chapter considers the law through the lenses of the instrumental and normative optics (derived from the similar optics in the context of international law. It analyses the extent to which the state uses legal principles and guidance to develop a framework of heritage law to achieve particular identified interests and how these interact with the normative push of interested communities whose actions provide the practical means of caring for heritage. In some instances, the normative optic feeds into the development of heritage law, thus aligning with the interests of the state and merging the optics, but on other occasions, there is a tension with both a push and a pull of the different optics. Using the UK as a case study, this chapter considers how these various norms manifest in the law through the two optics. It considers the legal instruments promulgated to directly regulate cultural heritage and provide opportunities for community participation. It then proceeds to analyse case law involving objects or places of cultural heritage but where other common-law principles are applicable and analyses how far these underlying domestic norms play a role in framing the outcome of the case.
