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Who controls the past?

Penny English

Head of Anglia Law School, Anglia Ruskin University, Cambridge.

Cite this article as: P. English 2013 'Who controls the past?', Internet Archaeology 33. http://dx.doi.org/10.11141/ia.33.9

Introduction | Objects or contexts? | Whose values? | Whose interests does the law protect? | Who is the rightful owner? | The relevance of a public sphere | Increasing the dialogue | Nighthawking | Is consensus even desirable?

1. Introduction

This collection of articles presents a series of snapshots of different aspects of the regulatory framework and practice of metal detecting (and related issues). Each shines a spotlight on a different context but underlying all of them is the same fundamental question. Although the focus of heritage law and management is on tangible property, i.e. objects and places, the debate always leads us back to the intangible and seemingly insoluble question of who should have the right to control access to the past. These articles speak with a variety of voices, some more forcibly than others. The resulting kaleidoscope of viewpoints illuminates the challenge of reaching a workable management regime for the archaeological heritage, at times highlighting points of convergence, at others the unbridgeable gulf between different communities of interest, all claiming a stake in the past.

The latter part of the 20th century has seen the character of the debate change, replacing the certainties of the past with a multiplicity of perspectives. Both Campbell and Gransard-Desmond identify this theme of change in their articles. Campbell comments on how quickly the change in the relationship between detectorists and the archaeological community has taken place. What had not long ago appeared to be sets of clearly defined interest groups pitched against each other has become more complex and fluid. This does not mean that the groups are necessarily on a path to unity; the potential for new or renewed fracturing is never far from the surface. Gransard-Desmond highlights the fear that those who are not ready to accept that the world is evolving, and that they need to change with it, will be alienated and driven underground. This evolution presents the prospect of a tantalisingly unstable future, on the one hand the possibility that it will drive a wedge between factions and on the other a rapprochement between them. The juxtaposition of these articles, each approaching the debate from a different angle, captures precisely this complexity and challenges the reader to question her or his own assumptions and prejudices.

In particular, the core debate is between professional archaeologists and those pursuing metal detecting as a hobby. Here prejudice and misunderstanding have deep roots. Superficially the differences are about methodologies: put at its most basic it is about the difference between excavation techniques and curation policy. That the differences give rise to such intense passion indicates there is something far stronger operating than a disagreement about methods. As these articles demonstrate, similar disputes rise to the surface in diverse contexts and in different parts of the world. The common factor is always the question of who has access to the past. Since access is one of the attributes of ownership, the question is really 'Who owns the past?': what is at stake is not control of things but the past itself. Should professional archaeologists be the gatekeepers limiting this access? If so, what is it that makes archaeologists solely qualified to control this access on behalf of the public? Alternatively, is the cultural heritage something in which all citizens have an individual stake? As Gransard-Desmond identifies, it raises the question of how to balance the tightrope between citizen engagement in the heritage and the discouragement of activities, such as looting, which are wholly destructive. However, the picture is far more nuanced than was historically portrayed. It is no longer possible to view it simplistically as a case of the wider citizenry pitted against a professional, government-sanctioned elite.

Furthermore, other distinctions, which at first seem clear-cut, begin to dissolve on closer examination. The law makes a clear divide between that which is legal and that which is illegal. The reality is that the distinctions are, even here, blurred. A convincing line might be drawn between metal detectorists who engage in the hobby out of a genuine interest in the past, and those who are detecting, illegally, purely for gain—the nighthawks (see Wilson and Harrison). There is a similar distinction between the collector motivated by a love of the object, and the dealer willing to smuggle or forge in pursuit of financial gain. In reality, the boundaries are not always that simple and a disjuncture exists between law (which defines activities that are illegal) and morality (which identifies behaviour that is wrong). As Campbell identifies in his article, detectorists may be engaged in activities that are against the law but who are motivated by a genuine interest in the past and who do not consider what they are doing to be in any sense wrong. The differences in the law in different parts of the UK (Campbell is concerned with Scotland where the law concerning found objects differs significantly from that of England and Wales, while Fox examines the law applying in the Isle of Man) pull this into sharp focus. There may be objective reasons for variations between jurisdictions, but these differences open up the possibility of pursuing a further line of thought. Gransard-Desmond discusses the situation in France and makes the important observation '[a] country's legislation represents its position regarding the values upheld by successive governments'. Views of governments are not necessarily congruent with the views of all the citizens: it is not just a matter of determining who owns or controls the past, but of the process by which this decision is made.

Gransard-Desmond also suggests yet another blurred dividing line. He opens with the question 'Can we really differentiate between treasure hunters and non-professional archaeologists?' This evokes the image of Indiana Jones, perhaps the most well-known archaeologist in the popular imagination, and who embodies both aspects in equal measure. Gransard-Desmond's categories are qualified: 'Although volunteer archaeologists may be users of metal detectors, not all metal-detector users are volunteer archaeologists'. The difference lies not so much in the use of metal detectors per se but in a fundamental difference in approach, which has meant that archaeologists and metal detectorists speak different languages. There may be some tentative attempts at bilingualism, but all too often there is still a retreat into opposing camps.

As Campbell puts it:

'both sides of the metal detecting debate are caught within a paradigm of which they are unaware, and continue to talk to each other in a language of mutual incomprehension. In particular, many archaeologists are mystified by the lack of enthusiasm ' or sometimes animosity' which they experience from metal-detector users while many metal-detector users expect the same from archaeologists, and unhappily sometimes get it.'

Campbell discusses the roots of the acrimonious differences between archaeologists and metal detectorists in the UK which led to polarised positions becoming entrenched. The STOP (Stop Taking Our Past) campaign, while intending to prevent the destruction of the archaeological record by indiscriminate use of metal detectors, demonised the hobby and poisoned relationships. Ferguson identifies in her article that the use of the term 'treasure hunter', synonymous with 'looter', accentuated the 'failure to recognise the complexities of metal detecting as a hobby'. No longer at the forefront of the archaeological consciousness but embedded in the folk memory of the metal detecting community, the ripples of the campaign are still discernible today. It is therefore an episode that merits recalling.

The scale of the perceived threat from metal detecting provides some explanation for the strength of the response from the archaeological community. Although only an estimate, there may have been as many as 300,000 engaged in the hobby at the height of its popularity in the 1980s (Dobinson and Denison 1995, 6). In the face of the growth of the hobby, the response of the archaeological community was uncompromising:

'In the view of the Council for British Archaeology, treasure hunting constitutes a great threat to the country's archaeological heritage, and is thus contrary to the national interest. The concept of treasure hunting is totally at variance with the objectives and practices of archaeology in studying and safeguarding our tangible past for the public good of present and future generations.' (Council for British Archaeology 1979).

Such attitudes were not confined to Britain. The Committee on Culture and Education of the Council of Europe produced a report that says much the same:

'In short, the use of metal detectors by the general public poses a direct threat to the archaeological heritage in that it destroys inevitably and without record that very heritage' (Beith and Flanagan 1981, 7).

The hobby of metal detecting complements an interest in local history and, as Ferguson discusses in her article, it is an activity that falls within the category of 'serious leisure' involving skill, commitment and perseverance. Those engaged in it portray metal detecting as a socially desirable activity, a healthy open-air pursuit that stimulates an interest in the past and which harms no-one. Redmayne and Woodward list a number of reasons for pursuing the hobby, but the overriding reason is 'that you just do not know what is going to be in the next spade full of earth. Is it going to be another piece of agricultural scrap or might it just be that coin or artefact with a real story to tell? To break open a clod of earth and be the first person to hold an object, possibly for hundreds or thousands of years, is all the motivation that many need'. It is this tangible, physical connection with the past, the frisson of being able to uncover and touch the past, which draws people in.

2. Objects or contexts?

The practical basis of the difference lies in the recognition of the importance of context, rather than the focus on the object. It is perhaps understandable that the communication between metal detectorists and collectors on the one hand, and the archaeological community on the other, reaches stalemate since each has a genuine interest in and concern for the material remains of the past and what they can tell us. These profoundly different viewpoints are well represented in this collection.

Sayles addresses the question from a different viewpoint: that of the collector. He adopts the views of John Henry Merryman, who has been influential in his articulation of the distinction between cultural nationalism and cultural internationalism (Merryman 1986; 1994; 1998; 2005a; 2005b; 2009). His 'object-oriented' approach is one that places emphasis on the preservation of the object and cross-cultural access to it. Thus, the free circulation of cultural property on the international market both ensures its preservation and maximises the availability of objects outside their country of origin. The underlying philosophy is that all cultural property is the common cultural heritage of all. The consequence that flows from this, for Merryman, is that any laws that restrict the free movement of cultural property on the international market, such as national claims to the ownership and retention of all cultural property within a state's territory, are undesirable relics of 19th-century romantic nationalism (Merryman 1986).

Rather than articulate this in terms of a clash between international and national rights to cultural property, it is more helpful to focus on the distinction between an object-orientated regime and one that gives primacy not to the object itself, but its context and the information that context can yield. Sayles gets right to the heart of this difference in approaches when he refers to the:

'…intractable claims from the archaeological community that no object from antiquity is of value to society unless its precise archaeological context is known, recorded, and verifiable. That stunning bit of illogic has baffled many historians, and especially art historians, but has become pervasive in the dialogue of anti-collecting activists in the archaeological community.'

In stark contrast is the article by Ferguson. In discussing battlefield archaeology she shows how much context does matter. She draws out the tension between an interest in the debris of battle as objects—the morphology of musket balls for example—and the context in which they are found, the faint archaeological footprints of the battle itself. Metal detector hobbyists, like coin collectors, focus on the object and may dismiss the commonplace objects as unimportant, while for the archaeologist it is not the objects themselves that are valuable but precisely that concern for recording the archaeological context which Sayles finds incomprehensible. As Ferguson puts it, the distinction is between a 'focus within hobbyist metal detecting on the individual artefact rather than considering the potential of it forming part of a wider assemblage of material'.

3. Whose values?

Cultural property is capable of holding different sets of meaning for different people and can seldom be ascribed one single value. Collectors, archaeologists, landowners, metal detectorists, all represent different interest groups, for whom significance is measured by different values. The issue of significance has been well debated in the literature, with a spike coinciding with the point at which the multivocality of interests in the past began to be recognised (Lipe 1984; Warren 1989; Saunders 1989; Cleere 1989; Mathers et al. 2004).

It can have value as scientific knowledge, as a political tool to create and consolidate a national identity, and an aesthetic value as art. Each of these values is a way of indicating that a group of people has assigned value to cultural property. For the art collector it is the intrinsic qualities of the object that give it value and which have a clear justification. After all '…it is no crime to love beauty' (Ortiz 2006, 15). For the archaeologist, the primary value lies in the information that can be disentangled from the complex web of distribution patterns and stratigraphy in which the objects sits. The object itself has a secondary value and may bear no relationship to the financial or aesthetic value. However, Campbell does identify a subtle nexus between archaeology and the antiquities market, which 'are linked in unexpected and uncontrollable ways'. Archaeological research can push up the market value of certain classes of object. A low market value may lead a finder to consider the object unimportant, an observation echoed by Ferguson in the context of battlefield finds.

It is these different values which mean that the metal detectorists and archaeologists appear to be speaking languages with no vocabulary in common. The incomprehension is evident from both sides, as Campbell recognises 'the misunderstanding of what archaeology is on the part of many metal-detector users, but it is exacerbated by a misunderstanding of what metal detecting is on the part of many archaeologists'. This lack of a mutual language also pervades a number of other articles in this collection (e.g. those from Sayles and Ferguson). However, reaching the point where this gulf can be bridged is made more complex by the intense passions involved, which viewed from outside the debate may well appear baffling, given that archaeologists, metal detectorists and collectors all share an intense interest in finding out about the past. As noted above, the roots of difference lie in the determination of who should own, or at least control access to, the past. As Sayles puts it, the professional archaeological community is seen as being engaged in 'a campaign to sequester the past', where 'the work of those who chose not to follow the academic path is disparaged and discounted'. As archaeology has become professionalised, 'serious, polysyllabic and geared to the university-educated' (Gregory 1986, 26), it has become distanced from the public. The consequence has been for alternative communities to develop, such as those involved in metal detecting. Other groups, such as amateur archaeologists and coin collectors, the successors (as Gransard-Desmond identifies) of the 19th-century learned societies, have similarly become distanced from the professionals.

This was not overlooked within academic archaeology, in the UK and elsewhere. For example, Peter Ucko (1989, xiii) observed, '[i]t is not just archaeologists who value knowledge of the past', a particularly telling comment! Joan Gero expanded on the same theme (at a similar date) of the problematic nature of the closed scientific community 'Archaeologists have assumed that it is their right, their special ability, and their privilege to interpret the past ... as full-time specialists in the production of the past, our ideological stances are partially formulated in reaction to popularisers, whom we arrogantly dismiss...' (Gero 1989, 103).

Tilley (1989, 107) pointed out the consequences:

'This sets up and perpetuates a total disjunction between the professionals who produce the past and the public who are firmly placed in the role of passive consumers and in the end are alienated from it. Their reaction to this sense of alienation may sometimes take the form of unauthorised excavation or pot hunting which, in turn, elicits from the professional archaeological community various attempts to punish the offenders, namely, those who have attempted to discover their own past and have dared to transgress the hermetic divide.'

4. Whose interests does the law protect?

On one level the argument is simple: whose interests should the law uphold? Should the public interest (i.e. the state) or that of the private citizen (the finder or landowner or collector) prevail? A straightforward answer would be that the law should be representing the public interest. On further examination, though, the argument, is more nuanced and complex. This was brought into sharp focus in the UK when the reform of the unworkable medieval relic of the royal prerogative of treasure trove was undertaken. Metal detectorists feared the hobby was being outlawed by an extension of state ownership, a theft of their past by an exclusive institutional elite. They perceived themselves as the public and the state as appropriating cultural property in the interests of a minority, not of the public at all. As Wilson and Harrison note, the suspicion remains that metal detecting will be restricted or banned.

The assumption underlying the legal protection is the public interest in the preservation of the past. However, 'State intervention is not inherently more public - more democratic, more empowering ' (Robbins 1993, xv). So the question becomes who is the public? The law is expressing public value but the problem is defining which public rather than assuming that there is one single public, and establishing what is the common interest (which is not necessarily the same as the state interest) is not a simple task. Collectors, archaeologists, landowners and metal detectorists all represent different publics. Should they be thought of as representing individual interests rather than multiple publics? Campbell makes the case for archaeology as the means to prioritise the common interest over individual interests. 'What the law does, then, is not prioritise archaeology and archaeologists, but rather uses archaeology to articulate a broader ideal of common cultural heritage over other, more individual interests'. This is a logical conclusion, but does not necessarily provide a completely satisfactory resolution to the differences. Theories of radical democracy are illuminating here and suggest that dispute is unending, an irreducible attribute of democracy. When the challenge to cultural property regimes comes from a subculture or interest group that has a different agenda, the definition of the 'public' comes under the spotlight. It is possible to explain or at least partially illuminate the nature of the problem by applying some political theories that explore the nature of the public sphere, which in turn pose questions for the nature of democratic decision-making.

There is a seldom-articulated assumption that the state assumption of control or ownership of objects or places of the past is in the interests of the public good for which there is a consensus. Yet sometimes sections of that public are less than convinced that their interests have been heeded. Ndlovu highlights this in the different context of land and cultural ritual in South Africa, providing a stark reminder that the issues are not localised in the differences between metal detecting and professional archaeology in the UK. As he says, 'ownership is always contentious. The main reason for such a contention is because ownership impacts on those who value objects in different ways'. The issues are universal: frequently dormant or poorly articulated perhaps, but identifiable as expressions of exactly the same conflicts. As he says, 'we need to address the issue of "ownership" of heritage resources'. Even where the rights of different groups are enshrined in the constitution, as is the protection of cultural diversity in the South African constitution, this is meaningless without ownership since it is ownership that determines whether communities have control of the land on which their heritage is located.

These are profoundly political choices. Ndlovu's opening sentence goes straight to the point: 'The concept of ownership is highly political'; a theme also evident in Sayles.

5. Who is the rightful owner?

Is it possible to locate a true owner, who should have the moral (if not legal) right to control access to cultural heritage? One of the problems, paradoxically, with legal control is that this inevitably excludes from as much as it grants access to the past. There is certainly an element of natural rights theory underlying the claims of metal detectorists to the objects they uncover, logically based on the argument of John Locke that the principles of natural justice override government attempts to interference. The perceived desire of the state to extend its interest in such objects by restricting or banning the hobby is viewed as going beyond the scope of that which the state may legitimately take.

Group rights as a foundation for property ownership is a possible line of thought suggested in some writing, but it has not been fully developed. It differs from (but has close links to) the cultural rights discussed by Ndlovu. Margaret Radin (1993, 13) suggests it may be a productive idea to pursue, derived from her theory of a right of ownership grounded in the centrality of certain property to the constitution of personhood: 'Often things that are held in common are the most precious to us. It would be good to have a theory that could help us see that better. Certain groups … might claim their group's substantive existence as a group is bound up with property (land, buildings, cultural artefacts)'. This is clearly articulated in some state legislation, which places all cultural property in state ownership: it is justified as part of the national heritage, constitutive of the identity of the nation itself. This is a very different justification from state control as a means to preserve the archaeological heritage as scientific evidence.

Radin's list of possible groups that might have an interest in such property includes the entities that might be expected, such as nations and religious or ethnic groups. Perhaps more surprising is her inclusion of clubs on the list. Unlike the other categories, members of clubs have made a conscious individual choice to join. Identification with the group is self-defining, non-exclusive and fluid, members may choose to join and leave and belong to a number of different clubs. These communities—whether metal detectorists or coin collectors—become stakeholders. More than one group may have a claim on the property and the groups are not static. It may then be an impossible task to find the single group who has the strongest entitlement to ownership of the property.

It is possible to turn this in the opposite direction and think about not so much rights of ownership, but access. The right to control access is one of the fundamental attributes of ownership; the homeowner expects to be able to deny or allow access to their home. Nevertheless, when it comes to access to the past many of these stakeholders would agree with this view from a coin dealer: 'No one group has any monopoly over the ownership of the past, and no one group has the right to deprive others of the pleasure and knowledge that comes from an intimate relationship with the everyday and luxury objects made thousands of years ago by our common ancestors.' (Kampmann 2006, 75-6).

One solution, therefore, is to separate the various attributes of property, particularly access and ownership. In Ndlovu's description of South Africa is a good example of the problems that may arise where ownership and access are fused together: '…heritage resources might be found in privately owned properties. Such a form of ownership means that interest of particular communities must respect that such heritage resources are within a property they have no ownership power over … this provides a great challenge when it comes to providing access'.

The introduction of the Portable Antiquities Scheme (PAS) as a voluntary scheme for recording portable antiquities provides an example of a limited form of a common right to access over such property (though in respect of information rather than the tangible thing itself). Although its ownership is not altered, a concept of a public right to knowledge of and about such material underlies it. The attributes of ownership are, in this one respect, separated. This is the strength of the PAS and where it works at its best; that the record of the archaeological location of the object is separated from the ownership of it. This counters Sayles' argument that institutional curation of all objects is unrealistic. If a coin hoard is fully recorded, and comprises commonly found types with no value to a museum, provided the finds are all fully recorded the pragmatic consequence is they are returned to the finder who can sell, keep, disperse, melt them down at will, as with any other property. As Campbell identifies, 'it is often the information that the object holds that is culturally significant rather than the object itself, and in the particular case of coinage, there is little purpose in filling museums with what are effectively identical specimens'.

6. The relevance of a public sphere

The work of Habermas as a starting point for theorising discourse in the public sphere is particularly relevant for drawing together the underlying themes in this issue. Habermas' model is of a bourgeois public sphere, developing in early modern Europe, which enables mediation between society and the state by open, accessible discussion. This leads to a consensus of the common good. It provides a public space for citizens to engage in discursive interaction which can, in principle, be critical of the state (Habermas 1962). It is within this space that the decisions about what should be legally protected in the common good are negotiated. The assumption underlying this model is that a single, overarching public sphere is the desirable state of affairs. The current legal regime for cultural property appears to rest on this philosophical basis. Additional publics are cast as symptomatic of fragmentation and decline. However, the public sphere has always tended to be exclusive, for example by formally excluding groups from the debate on the basis of class and gender, perhaps therefore always a phantom (Robbins 1993). Nancy Fraser (1993, 7) suggests that there were competing publics from the start and that the bourgeois public was only one of many counterpublics. These 'counterpublics' are to be welcomed as 'both necessary and desirable to enable subordinated social groups to circulate counterdiscourses, formulating oppositional interpretations in idioms that might be unwelcome, unacceptable, or simply inaudible in a single dominant public sphere' (Coombe 1998, 277).

This idea of a world of competing publics changes the meaning of the public sphere. Rather than exist as the arena for debate over the common interest access to the past, it becomes itself an interest group that serves to legitimise its own political dominance and tends to 'silence or devalue some people or groups' (Young 1996, 120). This is exactly the view of the metal detectorists and collectors that comes through strongly in some of these articles; that a powerful archaeological elite with a particular viewpoint is able to appropriate the common heritage of the past for its own uses. The traditional idea of the public sphere privileges the expert, since it is a place where discussion is restricted to rational argument, privileging the professional archaeologist, but not providing adequate means of expression for other publics. Ferguson picks up the idea of sub-cultures, 'Interestingly, "serious leisure" also recognises that pursuits of this nature generate a "unique ethos" developing into broad sub-cultures with their own exclusive events, values and traditions with which they identify strongly; metal detectorists often define themselves as a "community"'.

7. Increasing the dialogue

Several of the articles in this issue refer to a changing environment and the need for adaptability by all the publics involved. On the one hand, there is the need to communicate the archaeological perspective and, as Gransard-Desmond puts it, to effect a transformation from an interest in possessing something old into an understanding of this something, going much further than the simple possession of the object itself. In this articulation that it is the information the object's context provides (whether in terms of stratigraphy or distribution patterns), not the object itself, archaeologists have the opportunity to demonstrate they are not the 'spoilsports' of the 1980s (Bewley 1983, 3).

The other side of the coin is the need for increased acceptance of the positive role metal detecting can have. In her article on battlefield archaeology, Ferguson describes a context where there has been a considerable degree of dialogue and evolving relationships. The particular characteristics of battlefield archaeology—primarily metal finds located in the topsoil—make these sites particularly well suited to the metal detector's ability to locate objects, and hence to their use in the development of methodological approaches in this context. Nevertheless, she recognises that the relationships are 'complex and often contradictory in nature' and there remains a difference between the ways archaeologists and metal detectorists 'perceive, value and interact with battlefields and their associated material culture'. Even here, where there is a productive working relationship, Ferguson identifies negative impacts arising from metal detecting, which all have at their core the focus on the object rather than archaeological context: 'a lack of awareness or recognition of the significance of artefact scatters and the spatial relationships that define them; not recognising certain artefacts as potential signatures of conflict; deliberate searching, i.e. relic hunting for battle-related artefacts, including rallies; and when battle-related material is considered as background noise in the search for objects of more "intrinsic value"'.

Redmayne and Woodward discuss an online metal detecting community which is open to debate and dialogue, which counts archaeologists as well as metal detectorists among its members: '…we have several archaeologist members that will agree (hopefully) that discussion on the forum is fruitful and far from the "them and us" antagonistic confrontations that many would imagine'.

8. Nighthawking

If the previous section suggested a gentle growing together of the disparate communities, Wilson and Harrison provide an overview of the increasing recognition of the need to tackle criminal activity associated with metal detecting. Not wholly concerned with detecting-related crime, a new term, 'heritage crime', has helped to highlight that this is an area which needs systematic and coordinated approaches. In the 1980s there was a very clear polarisation between the archaeologists and the metal detectorists, with the former tending to lump all activities involving the use of metal detectors as unacceptable. There is perhaps a clearer distinction now between the responsible detectorists and the nighthawks (which was a point that the detectorists had always emphasised).

Again we see how the landscape is changing, and the boundaries between characterisations shift. The mainstream detectorists have moved closer to the archaeologists as the success of the Treasure Act and the portable antiquities recording scheme shows. Wilson and Harrison focus on the illegal activity of nighthawking. Some of the animosity between the 'two camps' can be linked to a failure to take tackling the criminal aspects of metal detecting effectively. Considering all metal detecting as undesirable, without clear identification of the divide between legal activity (however misguided the archaeological community might consider the hobby) and criminal looting certainly contributed in the past to the polarisation of views. In particular, the failure of the criminal justice process to impose meaningful penalties on those who are prosecuted was problematic. As Wilson and Harrison note, opportunities were missed: the report by Dobinson and Denison in 1995, was 'far from acting as a call to arms there was relatively little follow-up beyond the efforts of individual archaeologists and landowners'.

The line between legal and illegal can sometimes be a difficult one to draw and is not always black and white. At one end of the spectrum, there might be illegal detecting by an ill-informed newcomer to the hobby inspired by the publicity surrounding spectacular finds (such as the Staffordshire Hoard) and unaware of the need to obtain permission from the landowner or of the restrictions on metal detecting on scheduled ancient monuments. At the other extreme, organised raids, the 'chronic, quasi-industrialised looting' identified in the Dobinson and Denison report (1995), purely for financial gain, are recognised as criminal by all communities of interest.

It is symptomatic of the lingering suspicion that the metal detecting community greeted the nighthawking survey with scepticism. As Wilson and Harrison note: 'There were strongly expressed suggestions that the project was a smokescreen designed to make a case for restricting or totally banning metal detecting'. Nevertheless, in general detectorists have recognised the damage done by illegal activity and 'that nighthawks are not "real" metal-detector users but rather thieves who use detectors as a burglar might use a jemmy'. The development of the term 'Heritage Crime' is a significant one, and the current multi-agency attempts to tackle the problems are leading to more prosecutions and Wilson and Harrison hope that well-publicised cases will have a deterrent effect and that 'it is possible that the "casual" or opportunist nighthawks will be discouraged. This would thereby enable enforcement activity to be directed towards organised groups and individuals who are less likely to be dissuaded'.

9. Is consensus even desirable?

The previous sections suggests the dawn of an era of closer relationship between those who genuinely value the past and a coordinated approach to criminal activity. Are the divisions dissolving to the point where they will disappear? Despite the echoes from the past, we are certainly inhabiting a very different world from the low point of the 1980s.

Ferguson adds a note of caution, and suggests the question of damage by metal detecting should not be ignored. The precise balance between collaborative working and the damage done by indiscriminate metal detecting and poor recording to the fragile archaeological record is one that is still evolving. There are still frictions, and she highlights the fundamental dilemma posed by involving metal detectorists in archaeological projects: 'Are we encouraging activity by involving hobbyist metal detectorists in battlefield archaeology projects… Should we be looking to ban all metal detecting on sites of conflict, or is it enough to build awareness of their fragile nature?' The practical difficulties are clear, but is there perhaps a philosophical reason to hope that the differences will not reach final resolution. If, as was suggested above, the real problem is not about techniques and approaches to how the past is investigated but about ownership and rights of access, then the differences may well be unending.

This is not necessarily a cause for renewed despondency. Mouffe (1996) argues that you can make room for a proliferation of political spaces and criticises the tendency for liberal democracy to start by stressing the 'fact of pluralism' and then find ways to deal with differences that make them irrelevant and relegate pluralism to the sphere of the private, a point relevant to the discussion of the constitutional protection of cultural rights in Ndlovu's article. Mouffe's argument is the reverse of this: pluralism is not something to reduce but 'constitutive at the conceptual level of the very nature of modern democracy' (Mouffe 1996, 246), something to celebrate. 'To negate the ineradicable character of antagonism and aim at a universal rational consensus—this is the real threat to democracy' (Mouffe 1996, 248). Is the ultimate common ground not only impossible, but undesirable?

'…radical and plural democracy rejects the very possibility of a non-exclusive public sphere of rational argument where a non-coercive consensus could be attained. By showing that such a consensus is a conceptual impossibility, it does not put in jeopardy the democratic ideal as some would argue. On the contrary, it protects pluralist democracy against any attempts of closure. Indeed, such a rejection constitutes an important guarantee that the dynamics of the democratic process will be kept alive.' (Mouffe 1996, 255).

This is an unending process, part of the inherently oppositional nature of democratic politics which acknowledges the 'ineradicability of antagonism' needed for democracy (Mouffe 2000).

If Mouffe is right, then the debate over who has the ownership and control of the past is an unending one.

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