Luca Bortolotti's reflections on some aspects of our legislation for the protection of cultural heritage


As an art historian of academic training, I have always had very much at heart the reasons for the conservation and protection of the artistic heritage: everything from archaeology to contemporaneity, from the highest production, proclaimed and historicized, to the forms in which popular art finds expression. I would say, indeed, that as a student, and then as a young scholar, I assumed those reasons, understood in the integralist declination dominant in the academic vision, as an essential dogma for the art historian. Afterwards, without ever deflecting from those sacred principles, I gradually rethought them with a more accessory critical sense, maturing a more "secular" vision of the question, to which the now remote (and never regretted) "conversion" to the art market has provided further tools, allowing me a more panoramic view of the set of issues at stake. Without having in the least become a paladin of unbridled liberalism, and always maintaining the unavoidable need to preserve and protect (as well as, of course, to study and make usable) everything that deserves it, I have however persuaded myself that there are fundamental vices, let's even say prejudices, which heavily condition the dominant mental approach and widespread sensitivity to these issues, risking forcing the reflection within mechanically assumed conceptual bottlenecks, but partly misleading with respect to the substance of the issues and the spirit of the laws.

It is not my intention here to go into the specific regulations of our artistic legislation, but rather to reason about some of its principles and I would like to say, in a broad sense, about the ideology that inspires its aspects concerning the free movement of works. As is well known, it is very articulate and in its various successive formulations, from Law 1089 of 1939 (issued by Giuseppe Bottai just on the threshold of the Second World War) to the unique code of cultural heritage and landscape of 2004, it has always unambiguously maintained a markedly protectionist and statist imprint.

The law moves appropriately within the framework of an extensive conception of the category of "national artistic heritage", and therefore of the individual work, which involves the historical, documentary, sociological, anthropological and philosophical values that can accompany each fruit of human creativity.

Frans Francken the Younger
Cabinet de curiosities, 1636
Vienna, Kunsthistorisches Museum


From this inclusive conception (i.e. not linked exclusively to the quality of an artefact, or to its "objective" historical importance, but also to its being a culturally significant object) derives an approach that is unfavourable to the freedom of the market and physiologically proclives to a rigid limitation of the circulation of goods outside our borders, since potentially each of them can be included in the category of significant works, and consequently can be understood as a relevant component of some respect for national heritage. When applying for the document that authorizes the export of a work of art (mandatory for every good that has been produced for more than 70 years: but it was only 50 until recently) this, then, is subject to a control procedure that provides for a particularly long time (up to 40 days, a term unfortunately not even understood as mandatory by law and in fact often widely exceeded) and which is very wide of the sleeve as to the criteria adopted, which leave the ministerial commission with full discretion and almost unlimited room for manoeuvre to deny the issuance of the document, called Certificate of Free Circulation.

There is no doubt that underlying the theoretical and conceptual framework on which our legislation is based is an ultra-idealist vision of art, aimed at placing it in a category above material events, as a single spiritual body that, in the abstract, would deserve never to suffer any mutilation. In this perspective, the commercial dimension is framed as a mere external factor, a mere extraneous accident to the authentic motivations from which artistic creation and love for art originate. It would be out of place to reconstruct here the genealogy of such a conception, which boasts a noble root and worthy of the highest regard in the process that starts from the humanistic claim of a place for the figurative arts among the liberal arts, outside that consideration of mechanical, artisan and mostly anonymous activities to which the medieval tradition (with sporadic exceptions) had relegated them. The theoretical summit of this complex historical-cultural dynamic is clearly represented in the Renaissance period by Vasari's Lives, but this process finds its fulfillment in Romanticism to branch out, finally, in the various idealistic aesthetics of the twentieth century, and is the basis of the modern cult of art. More problematic is another effect that derives from the idealist approach, which has translated into a culture and practice that is all specifically Italian, more conservative and, in some fundamental aspects, even anti-historical, which sees in the market an element of corruption with respect to the primary and more "genuine" values of art, and pushes artistic activity away from the vortex of economic mechanisms, reading art and market entities as two opposing forces facing each other in an eternal agony, in which there can be no doubt which side the good guys are on.

The first edition of the Lives by Giorgio Vasari published in 1550


In this context, it is interesting that social history and the history of collecting - crucial paradigms in art-historical research and totally intertwined with the commercial dimension of art - together with the ever improving focus on the intrinsic and perennial nature of the work of art as a powerful communicative, diplomatic, political and economic tool, continue to have so modest reflections on the common and widespread sensitivity to the theme of the market and the free movement of works: sensitivity of which laws always represent both theoretical codification and implementation within a system of norms. And yet there is no art history essay that today can overlook the key role played by the figures of clients, be they public or private institutions, collectors, merchants (often marchand-amateurs, in turn connoisseurs and collectors: once like today) and all the players who revolve around the work of art and confirm its full and indissoluble belonging to the sphere of commerce (including, of course, art historians). This is a sphere in which artists are fully involved, not only because they have always lived off the fruits of their talents, but also as promoters of themselves and/or their friends, and then sometimes as restorers, art advisors, curators, agents, copyists, forgers and so on, experts, witnesses, jurors in disputes, competitions, contracts and, last but not least, as shop owners (rarely generous with their employees).

In general, in its hyper-protectionist declination the idealist vision ends up contradictorily conflicting with one of the most powerful engines for the development of art over the millennia: the circulation of products, as well as of people, as an irreplaceable vehicle of knowledge, enrichment, stimulation and exchange between cultures and figurative civilizations. It is precisely the migration of works, in fact, that has encouraged the interweaving and growth of specific artistic traditions, on the one hand allowing them to spread and glory outside their own borders, and on the other introducing within each of them a constant factor of dynamism that has prevented their stagnation and exhaustion. Going beyond my competences, as well as my intentions, I do not even want to dwell on how certain aspects of our legislation appear to be problematic in relation to the Community regulations on the movement of goods within the EU: a subject which, beyond its legal implications, in the background remains nevertheless salient with regard to the idea, which should be founding, of a shared cultural tradition capable of acting as an ideal glue for the communion of the peoples who make up the European Union. With respect to this request, the Italian position presents rearguard features and seems to me to highlight the elements, not always duly noted, of ideological commonality between the corporatist, autarkic and racial vision of Fascism and the more markedly statist features of Law 1089 of 1939 (let it be said without neglecting its indisputable historical merits). In contrast, we can see in it a principle of nationalistic celebration of our artistic koinè as a constitutive identity trait that larcely implies a claim of superiority over other figurative civilizations. I submit on the sidelines that a certain subterranean permanence of this presumption, more or less conscious, can be found, with due proportions, in the absurdly and grotesquely amplified percentages of "art" present in our territory with respect to the overall world share: a commonplace of which it seems difficult even to recognize both the mathematical criterion and the epistemological foundation, but which we nevertheless hear repeated without control and continuously in the most varied contexts.

David Teniers the Younger,
The collection of Archduke Rudolf Wilhelm in Brussels, 1650/52
Vienna, Kunsthistorisches Museum


The noble founding myth of the hyperuranic purity of art and the moral necessity of its strenuous defence against the undue and corrupting intrusiveness of the market, with its sordid interests, its lowly commercial rules, its unruly characters, makes us feel better but I fear it represents a considerable distortion of reality, for the simple reason that the market is life: certainly with its pettiness, its ugliness and its shame (from which even artists should not be exempt).

Without an art market, simply neither art nor artists could exist. Certainly it is not "the good" (as a liberalism without rules and without brains would love to make believe), but it is not even the evil to demonize: because, after all, the market is us, who love, seek, study, interrogate, judge, evaluate, buy, sell and even exploit art, in a spiral that has no beginning or end and in which each phase explains, nourishes and gives meaning to the other.


Luca Bortolotti, head of Bertolami Fine Art's Department of Ancient Art

Opening photo:
Hubert Robert
"Planning of the Louvre Grand Galerie, circa 1789" - 1796
Paris, Louvre Museum

Johann Zoffany, The Uffizi Tribune - 1776
Windsor, Royal Collection

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