Identification of Personal Property of National Luminaries (Mafakher) as National Heritage and Its Legal Requirements: The Challenge of Conflict between Private Property and Public Right

Document Type : Research Paper

Authors

1 MSc. of Private Law, Department of Islamic and Private Law. School of Law and Political Sciences, Shiraz University, Shiraz, Iran

2 Department of Islamic and Private Law. School of Law and Political Sciences, Shiraz University, Shiraz, Iran

Abstract

Introduction
Although the private property of individuals is respected, in cases where a property possesses the characteristic of belonging to the public culture, the government may limit or even expropriate the private ownership of individuals. One instance of such property is the personal property of national luminaries (Mafakher). Luminaries (Mafakher) are those who have used their talent to create unique phenomena or perform admirable acts that shape the norms and values of society, or whose lifestyle, in the view of society, represents the attainment of perfection of a value. Luminaries of any society, due to their influence in various scientific, social, political, cultural, religious, and other fields, are considered a part of the culture and national identity of each country; consequently, their personal property can also be registered as national heritage under certain conditions. In the conflict between the private property of luminaries over their personal belongings and the public right to culture, this article seeks to explain the grounds and criteria for identifying the property of luminaries as national heritage and its legal requirements.
 
Method
The present article has been compiled using a descriptive-analytical method and by studying upstream documents and laws and regulations in the field of cultural heritage. Data collection has been carried out using library resources and reliable internet databases. In this research, by analyzing existing laws and regulations, the conflict between private property and the public right to culture in identifying the personal property of luminaries as national heritage has been examined, and its effect on the limitations imposed on the owner by the government, as well as compensation for damages inflicted upon this property, has been studied.
 
Findings
The personal property of luminaries can be registered as national heritage if it possesses one of the following characteristics: 1) It is the "cause of fame" of the luminary or "related to their fame" and in a way "recounts the influence of the luminary on the culture of a society"; 2) It has a spatial connection and dependency with the luminary; 3) It was gifted to them by virtue of the luminary's personality. The property of luminaries that is registered as national heritage is distinguished from other national heritage in terms of the conflict between private property and the right to culture, its connection to the right of publicity and personality of the luminary (rather than the inherent values of the property itself), and the necessity of preserving the private property of luminaries (except in exceptional cases); therefore, the system governing the identification and registration of this property must be different from other national heritage. In the authors' opinion, government intervention regarding the property of luminaries is in principle exceptional and limited to cases where this property is considered part of the public cultural values of the country and is at risk of destruction. Therefore, a voluntary registration system preserving the personal ownership of luminaries can assist in the protection of this property. The scope of government supervision over this property is very limited during the lifetime of the luminary and increases after their death in order to preserve the registered national heritage, unless the heirs protect these heritage items in a proper manner. The liability of the government may arise in two scenarios: "negligence in policy-making and legislation" or "negligence in performing legal duties and supervising national heritage." Furthermore, the fault of the owner (the luminary) himself in protecting the registered property, if it leads to damage to the spiritual and cultural values of the heritage, can also give rise to civil liability.
 
Conclusion
In registering the property of luminaries as national heritage, we are faced with a conflict between two rights: on one hand, the proprietary right of luminaries over their property is respected, and on the other hand, the right of the public community to this property, which encompasses a part of a country's culture, is undeniable. Considering the distinguishing aspects between the registered property of luminaries and other national heritage, it seems that the registration of luminaries' property as national heritage should be voluntary and, during their lifetime, upon the request of the luminary, and after death, by testament or upon the request of the heirs. The registration of luminaries' property does not cause it to leave their ownership, and during their lifetime, the administration of this property rests with the luminary himself, and after death, if the heirs take appropriate action to preserve and maintain this property, the government has no right to intervene. Therefore, it can be said that the scope of government intervention for registering and preserving the personal property of luminaries is more limited than its intervention regarding other national heritage. In the event of damage to a national heritage, the owner, in terms of material and economic aspects (proprietary rights), and the government or the prosecutor, in terms of public aspects (the public right of the people to culture), may claim compensation for the damages incurred.
 

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Main Subjects

References

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