The judicialization of the tension between the cultural identity of states and intangible cultural heritage

This chapter analyses as the first space of judicialization cases where the claim over an intangible cultural heritage clashes with the cultural identity created by a state through its fundamental legal principles. Two cases illustrate this phenomenon. On the one hand, a claim brought before the Canadian Supreme Court considered the possibility of communities using their traditional practices of oral stories to bring the proof of an aboriginal title as recognized by the Constitution. On the other hand, a decision by the French Administrative Supreme Court considered the extent to which a public administration could fund a private religious association pursuant to the fundamental French idea of Republic that enshrines a separation between the state and the church. Without generalizing, these cases help us discuss how judges negotiate between a heritage claim and a national official practice and how this affects intangible cultural heritage. The chapter concludes by discussing how heritage holders negotiate legal standing before the courts.