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2. A short history of French legislation relating to heritage and archaeology

A country's legislation represents its position regarding the values upheld by successive governments (to find all French legal documents, see Clist n.d.). This clarifies the history of scientific disciplines and archaeology is no exception. It is interesting to note that in France, the first laws relating to material traces left by previous cultures only extended to those traces visible to all. This is how the first law passed by the French government on 31 December 1913 referred to what is still known today as 'Historic Monuments' (Monuments Historiques). This law stipulates in its first article that 'buildings whose conservation is in the public interest, from a historical or artistic perspective, are classed as historic monuments in whole or in part by the minister in charge of cultural affairs'. Thus only what is visible is recognised. The act passed on 2 May 1930 relating to the protection of 'natural monuments' and 'sites of an artistic, historic, scientific, legendary or picturesque nature' suggests the beginnings of an interest in hidden heritage. However, it was not until the act of 17 September 1941 that regulations came into force covering archaeological excavations, and then validated by an edict on 13 September 1945 (no. 45-2092) which evoked the term 'archaeology' and was explicit about below-ground remains in relation to protection on a national level. However, there was still no mention of underwater remains and the French government only began to take an interest in them with Act 61-1262 of 24 November 1961, which related to the policing of maritime wrecks. Emergency interventions owing to the destruction of potential sites by building works or for other reasons were still not expedited, and such measures only emerged thanks to pressure from the AFAN (Association pour les Fouilles Archéologiques Nationales) on 17 January 2001. This new law has its European legal basis in the European Convention on the Protection of the Archaeological Heritage (revised), also known as The Valetta Treaty or the Malta Convention (Council of Europe 1992), signed on 16 January 1992 by the member states of the Council of Europe. The convention's major outcome in France was the setting up of a charge to finance evaluation and rescue excavations. A public establishment administrating research was subsequently created, taking over the now-disbanded AFAN's rights and obligations. From this, the INRAP (Institut National de Recherches Archéologiques Préventives) was born on 1 February 2002 (INRAP 2009).

The history of legislation concerning French archaeology is even more complex than detailed here but this brief outline shows the position of French politics with regards to archaeological research. Even though awareness of prehistoric archaeology emerged in the 19th century, and many remains relating to a more recent past were known about (the Iron Age and the Celts; ruined medieval castles), only visible remains above the ground interested politicians until 1941. Although under the Vichy regime the less visible past finally saw the light of day, the separation of historical monuments and archaeological remains continued, as well as an absence of consideration for underwater remains. It was not until the establishment of the Heritage Code (Code du Patrimoine) of 20 February 2004 that a transformation of previous texts was made. Archaeology is currently defined by article L 510-1, as 'made up [of] all remains and other traces of the existence of humanity, of which the safeguarding and study, in particular by excavations or discoveries, enables the development of the history of humanity and its relation with the natural environment to be retraced'. However, it appears that this time politicians are a few steps ahead of some scientists. Despite this definition, which unites remains of buildings and portable antiquities, that are visible and invisible, underground or underwater, and even integrates signs of an immaterial nature such as environmental change, the notion of buildings archaeology is still not wholly accepted. Similarly, the archaeology of the 20th century continues to be ignored and the wider public is far from being up to date on scientific development. This is not without consequence for users of metal detectors' (UMDs) approach to what is or is not archaeology.

Leaving aside legislation concerning rescue excavations, which can only be carried out by authorised operators, I will briefly discuss article L 531-1 of the Heritage Code, which has a bearing on regulations covering planned excavations. This states that 'no-one may carry out, on his own land or land belonging to a third party, excavations or surveys to search for monuments or objects which may be of interest to prehistory, history of historian, art or archaeology, without first having obtained authorisation'. This legislation thus clearly applies equally to visible constructions (castles, churches, buildings, etc.) and invisible ones (rock shelters, caves, underground passages, former mines, buildings of which only below-ground foundations remain, etc.). Article 532-1 completes this definition by including the maritime dimension.

On the other hand, it can be added that distinguishing prehistory, history of historian, art and archaeology shows that old habits die hard. What need did the legislators have for this listing when since at least the 1980s archaeology has dealt with invisible remains just as much as visible ones? While this article was revised on 20 February 2004 by ruling no. 2004-178, keeping these distinctions, which are today completely outdated, contributes to maintaining confusion both within the scientific community and also for students and the wider public, including metal detectorists.

Despite the provisions, unexpected discoveries can be made. Indeed, the Heritage Code (articles from L 531-14 onwards) provides for the possibility of discovering a treasure in the sense of article 716 of the Civil Code: 'a treasure is anything hidden or buried for which no one can prove ownership, and which is discovered by pure chance'. According to the same article, and with the condition that the State is not interested in the treasure, under the interpretation of article L 531-14 of the Heritage Code, it then belongs to '… whoever finds it on his own land; if the treasure is found on the land of a third party it belongs in half to whoever discovered it and half to the owner of the land'.

According to French legislation, there is then no possible confusion between deliberate search and unintentional discovery, and the legislation even takes into account the use of metal detectors in the Heritage Code's articles from L 542-1 onwards. The first article stipulates that 'no-one may use material allowing the detection of metallic objects, in order to search for monuments or objects which may be of interest to prehistory, history of historian, art or archaeology, without first having obtained an administrative authorisation given out according to the applicant's skills and also the nature and procedures of the search'.

Although the legislation here is still slightly behind the possibilities presented by new technologies (discussed later), it has become much clearer concerning the intentional motive that the French government ascribes to the use of metal detectors outside of a professional or scientific framework (Although it is true that metal detector use for minesweeping is under the Ministry of the Interior and the Ministry of Defence, following the decree no. 2010-1261 of 22 October 2010, nothing prevents construction workers and other services from using them to map various pipes in order to avoid damage during roadworks or the construction of a terrace). Indeed, having defined archaeology as a source of knowledge about human history from material and immaterial remains, no chronological period is excluded. As a consequence of this definition, the French government has effectively forbidden all leisure metal detecting. Underlying this, it must be understood that it is not so much the tool used that is forbidden, but prospection leading to the removal of remains from their context without scientific purpose.

It should be said that in any case of violation, liability to criminal prosecution arises from articles L 544-1 onwards of the Heritage Code, and also by the Penal Code. Article 311-4-2 of the Penal Code provides up to 7 years imprisonment and a fine of €100,000 for the theft of evidence pertaining to article L-310-1 of the Heritage Code. The same applies to the destruction, degradation or deterioration of evidence of the same type according to article 322-3-1 of the Penal Code. These sanctions can be lengthened to 10 years imprisonment and €150,000 fine when the infraction is committed under aggravating circumstances (especially, if several people participate in this destruction, degradation or deterioration).

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