Do elves have rights?
by: Jeremy Harte
In the corner of the field, under a little wooden chamber, the waters of the fairies' well bubbled from the ground. It was a brilliantly sunny day in July. The corn in the field all about the monument glowed golden. A kind of ivy clung to the corner around one post, and had entwined itself into the matted thatch above, which sloped down and exposed the rickety roof-frame. It was a perfectly delightful sight in its rustic charm. (Cockin 1992). Here the villagers of Church Eaton had laid the foundations for their church, but at each night the busy labour of invisible hands moved the stones to the centre of the village. All that remains is the well - dedicated to St Edith, good for eye troubles, and having the strange property that tools left in its water will not rust.
But all was not well under the July sunshine. It had become clear that the weathered roof would soon fall in unless it was rethatched. The parish council would gladly pay a thatcher, but they have no money. Staffordshire county planning department have the money, but will not subsidise a project without public access. The farmer will set aside land for an access path, but at a price. This would be charged to the parish council - who haven't any money. Deadlock. Evidently the fairies are getting a raw deal out of local government here. But sacred sites aren't always treated with such disregard. The County Engineer and Planning Officer for Devon, for instance, has called for proper respect to be shown to old stones by the public highway, recognising that they cannot be moved without activating a curse. The Shebbear stone also falls within his brief - the one which has to be turned over every Bonfire Night, otherwise the Devil will wreak havoc in the neighbourhood (Clifford and King 1993: 60). No doubt the motives which lie behind his promotion of folk belief are not unconnected with tourism. What matters, though, is the public acknowledgement that supernatural issues are part of the responsibility of planning officers.
They certainly are in Iceland. A road scheme was poised for completion in the suburbs of Reykjavik, when it was noticed that the development would damage a hill known to be frequented by elves - so they redirected the road instead. Foreseeing that this sort of problem would come round again, the city?s highway authority briefed a clairvoyant. With her aid, developers can now draw on a land-use map specifying the places which are home to elves - and not just elves, but dwarfs, gnomes and huldufolk as well (Rickard 1994). Within a year the psychic contract was paying its way. Another road project had ground to a halt, since bulldozers seized up every time they tried to shift an elf stone. The highways section found another medium, and she mediated: the elves found a new home, the empty stone was respectfully transferred off site, and the road went ahead (Rickard 1996).
Maybe it is their marginal position in the European world-view which encourages small nations to take a positive attitude to other realities. The policies forged in Iceland have long been taken for granted in Ireland, where even international airports, symbol of integration into the global economy, are thoroughly subverted by tradition. Runways have been diverted to avoid causing damage to a fairy mound (Keel 1971: 227). Folklorists continue to relish the occasional news report that the course of a new road has had to be diverted to avoid cutting down a sacred tree (Bord 1982: 105); usually the interests of the fairies are protected by the contractors themselves, men like Roy Green of Ballymagroarty who stopped work when he came to a fairy thorn in 1968. Unable to find another developer willing to take on the risk, the planning department did the obvious and diverted the road (Bord 1997: 5). In case this seems like mere Irish eccentricity, there is the case from Emmer Green in stolid Oxfordshire, where housing development was halted when it reached the fairy tree under which two village girls left their teeth in exchange for presents. It is not clear whether the traditional status of the tree was any older than Naomi and Eloise (aged 7 and 9) but nevertheless its supernatural status won a right of appeal to the Secretary for the Environment, and launched a public enquiry (Collins 1985).
Someone, somewhere, is standing up for fairies. It isn't altogether true to say that missing from our modern practice of planning is the concept that there are forces beyond immediate secular forces and geological basics that bear on what is best done at each given site? (Swan 1991: 2). But last-minute campaigns in favour of elf-infested spaces are only token subversions of planning, a system whose core values remain anthropocentric. Back in 1944, when state planning was set to dominate the political process, a government White Paper laid down as its key principle that claims on land should be so harmonised as to ensure for the people of this country the greatest possible measure of individual well-being and national prosperity (Cullingworth 1997: 22). It is the people whose interests are paramount - not the Little People. And there is certainly no encouragement in government policy for the kind of planning in which the nerve centres of the earth . . . were guarded and sanctified by sacred buildings, themselves laid out as microcosms of the cosmic order, the universal body of God. (Michell 1969: 159).
In secular liberal states, it is the public interest, not the cosmic order, which has power to override decisions on road developments and housing estates. While it is possible that the spiritual form of sleeping Arthur was opposed to the Wychbury Bypass, the decision which overturned this scheme took no notice of the dead kings will: it respected only the interests and feelings of ordinary people. This is the way that things are done in the West. But it is not the only way; the criteria which define who is a person are assembled very differently in other cultures. Naturally, this leads to trouble in court. In Australia, Aboriginal land claims have to be pursued through what is in origin a European legal system. Legal forms and ideas, evolved over centuries to determine questions of ownership, become absurd when they are required from claimants to whom land and people are not the objects and subjects of litigation, but a single community. Aborigines face the paradox that the real plaintiffs are not allowed in court. The stones and trees themselves, having sent the Dreamings which define tribal custom, are not deemed fit to plead: instead, the people upon whom they have exercised their rights have to speak on behalf of them. Anglo-Australian judges are often well-intentioned - but they simply cannot conceive that a rock might have something to say (Povinelli 1995).
In countries where the planning process has been explicitly set up for the benefit of human beings, it is easy to forget that religion makes claims so transcendent that human lives (let alone drains, parks and street lighting) are nothing in comparison. Even within the boundaries of Europe there are different approaches to this. Italy, with its thousands of underfunded historic churches, is reproached by the English because there are no plans for converting them to new uses (Sims 1995). Entrepreneurial Protestants do not see that a church which has fallen into sacred ruins is still a church. Turning it into a bistro destroys the building, whatever it does to preserve the architecture. The secular state guards our most trivial worldly interests, while neglecting the great questions of salvation - which is just as well. No-one wants to live in a theocracy. But by redefining the traditional bounds of the political to exclude God, the modern state has also abandoned its protection of the thousand creatures of the lesser mythology. Pagan law protected the lares and the landvaettir, while ours behaves as if they did not exist. So it is unlikely that planning consent would have been refused to the industrious farmer in the ballad who felled the oak, he felled the ash . . . He hewed him baulks and he hewed him beams / With eager toil and haste. But the spirits of the wild saw it differently. Seven hundred elves came out the wood - / Horrible grim they were, and the farmer only survives by abandoning his utilitarian land-management strategy for a barrage of counter-magic. Spirits forced out of their abode by human activity . . . will travel to another suitable place, but only after perpetrating some act of revenge against the culprits (Pennick 1996: 26; 148). Clearly we should all be careful before we bulldoze that lonely old thorn. But is this just simple pragmatism, or are we prepared to extend the claims of our morality, our politics, to include the elf world
Precisely because planning law is so extensive, it contains the seeds of its own contradiction. Landscape planning is based on the concept of amenity, an undefined compound of beauty, tranquillity and isolation given the status of law by the 1947 Town & Country Planning Act. For a hundred years before that, amenity had been the guiding principle of philanthropists who sought to offer to the teeming populations of Victorian slums a pure, elevating glimpse of nature. The model to be imitated was the park or landed estate of the country house, with its trees and hills, glades and waterfalls - all reflecting the taste of the landed proprietor, just as the antiquities on the estate revealed his grasp of history. In the brave post-War future, the people of England would become a single, collective proprietor of the land, and its beauties were to be preserved for them. So, too, would its ancient monuments - even its folklore, if the wording of the 1979 Ancient Monuments Act is to be taken literally when it defines sites as of public interest by reason of historic, architectural, traditional, artistic or archaeological interest.
In true anthropocentric style, the Act claims to preserve old stones and mounds only so that they can serve the public interest. But on the ground, it usually seems that archaeological sites are being protected for their own sake. The same is as true of Areas of Outstanding National Beauty, or Sites of Special Scientific Interest, as of Scheduled Ancient Monuments. Contemplating the resources which both the state and voluntary sectors plough into saving and keeping these places, it is hard to feel that they are being preserved for anything but themselves. Their survival is seen as self-evidently good. The National Trust would not have come into being if its founders had not shared a Wordsworthian sense that landscapes were places, not just of amenity, but of transfiguring spiritual power - places which called out for people to acknowledge and care for them. In conservation, and in the Green movement generally, the motives which really stir people into action are not always the same ones which they will advance in debate with the cynics. The legal machinery for preserving the environment relies on pragmatic values - thriftiness, aesthetics, science, history, and health. But what really gets people going are the two unspoken motives - compassion and reverence (Ryder 1992: 4, 205). These are not anthropocentric. They imply a moral standing for nature in itself. The discourse of environmentalism, which began by extending the concept of rights from humans to (other) animals, has now come to touch on the ethical status of trees (Thomas 1982: 302).
Most people now behave as if animals had some kind of moral rights. Mutilating cats is wrong - it is wrong in itself, not because of any incidental loss it may cause to other people. But the law, slow off the mark, continues to affirm that animals can only be protected as pieces of human property. In exactly the same way, the law of sacred sites does not protect them because they are worthy of reverence, but because they are part of the nationss property - its heritage. The Scottish guidelines on development, for instance, try to weigh economic interests against potential use for amenity, tourism and educational purposes (Wood 1997: 16). How would you or I fare if the only thing that kept us from being destroyed for economic purposes was our potential use for amenity, tourism or education The survival of sacred sites is the thing that matters. Any law which achieves that end is better than one which permits destruction, even if it means that the fairy hill is physically preserved by exorcising the last trace of respect for its real owners. But the trauma of denying the sacred is not easily healed, even in a country like Ireland where the old veneration survives alongside the new talk of heritage. The father leaves a rath uncultivated because it is fairy ground, the son because it is a scheduled monument. Newgrange, which was once the numinous abode of the sidhe, has now been reworked as an interpretative centre for celebrating the deep historical roots of the Irish nation (Ronayne 1997). This is not progress. What is so real about the Irish national interest, compared to Aengus Og and his hundred harpers Turning the haunted mound into a vehicle for imparting the National Curriculum is an abuse of the rights of elves. They have no redress in court, which is strange when you consider how well other incorporeal entities have their rights protected there. Limited companies can go to law over intellectual property - invisible beings fighting over an intangible thing - while Puck and Hob stand non-suited outside the door. This was not always the case. The Anglo-Saxons had no law of corporations - a king did not give land to Chertsey Abbey or Wimborne Minster, as we imagine, but presented it directly to St. Peter or St. Cuthberga. At Rome, the heart of the administration, everyone believed that St. Peter was there, in a physical sense. He dominated all the activities of his see. His remains guarded his rights, and struck down those who tried to usurp them. In a way he was more real than the Pope, who was merely his vicar (Johnson 1976: 168). Gifts to saints were not scanty. By 1259, when the Statute of Mortmain halted further acquisitions, a fifth of Englands wealth was directly owned by supernatural beings.
In the end it was respect for saints which inhibited the direct exercise of their rights. As legal persons, they could both sue and be sued; but since no-one was so rash as to bring an action against a saint, their interests were defended by the monastic communities which surrounded them. Gradually the idea of the corporation as an imaginary being, represented by the actions of authorised people, came to substitute for the experience of saints as incorporeal beings speaking through their living servants (Pollock and Maitland 1895: 1–499).
Clearly, therefore, supernatural beings can have a standing in law. Though courts have fought shy of accepting ghosts as litigants, judges have been careful not to deny their existence (Dennis 1997). The refusal to admit rights for the supernatural shows how much our legal framework is out of step with common perceptions of the numinous. In law, the field which contains the Rollright stones is freehold land, to be bought and sold. This is a strange concept, says John Attwood, spokesman for the real world. I dont believe that you can "own" a stone circle any more than you can own a cat. Apparently, though, the law says you can (Attwood 1997). From the popular perspective, the stones have rights - or what comes to the same thing, the fairies which sneak out to dance around the King Stone on Midsummer Night have rights in that stone. At the very least they require that the stones be left undisturbed, and any human infringment of this right will be met by calamity - it is a standard motif in the folklore of ancient sites (Bord 1976: 191–210). Like terrorists everywhere, the elves are making sporadic attacks on people and property in order to assert rights which they are denied by the state. If they were given standing in the courts, they could defend their interests there, and not with elf-arrows whistling in the dark. There is no reason why the Seven Hundred Elves could not have pressed their claims through the legitimate planning process. What do we have Tree Preservation Orders for, if not to safeguard sacred groves
The controversy between those who accept that the supernatural has rights, and those who focus exclusively on the human, came to a head not long ago in the Hebrides. The backbone of the island of South Harris is West Stocklett Hill, the Hag Mountain, in the form of a giant woman reclining in sleep or death. The Hag has a guardian in the geomantic researcher Jill Smith - for me, the mountain is one of the ancient Dreamtime ancestors, the Grandmother who rose from the magma at Creation (Smith, Billingsley and Dilworth 1996). In 1995 the work of Creation was revised; a hole was carved at the location of the Grandmothers navel by the artist Steve Dilworth, in order to set in a sculpture of his own. Not many people saw it in situ, but the installation was afterwards shown in a Stornoway art gallery. Smith doubled up in pain at the violation of the mountain. Dilworth was puzzled to encounter a negative response - I see it as a way of acknowledging our connection with the earth we stand on. For Smith, the mountain is a person, and has rights. For Dilworth, the mountain is a canvas.
Hardly surprising, then, that the controversy should have flared up over a female figure. There was a time when a woman, like a cat or a stone circle, had no legal personality. A man might violate her without committing an offence, unless he infringed the rights that some other man held in her. The difference between women and mountains is simply that the former have won the right to speak for themselves, while the latter are dependant on trustees or guardians - in this case Jill Smith, who is currently struggling to prevent Redlands Aggregates from further mutilation of the holy hill.
Supernatural beings have found some strange advocates. In the long-running controversy over the Elgin Marbles, commentators have forgotten that original title to the sculpture rested not with Lord Elgin, the British or the Greeks, but with the goddess Athene. Everyone, that is except Byron, who wrote The Curse of Minerva, an intemperate work in which the goddess, like a super-elf, curses Elgin and his race for the theft of her stones (Vrettos 1997). The status of the Marbles as heritage - and their anti-status now that the classical underpinnings of colonialism are out of fashion - have obscured their original meaning as sacred art, recreating throughout eternity the ritual of the Panathenaia. Even as they stood on the building, they had lost this value, since the Parthenon has spent most of its history as a place of worship for the Virgin Mary and not for the pagan maiden. To whom should they be restored Athene has the prior claim, but a goddess without any worshippers has no-one to represent her interests. Mary has millions of devotees worldwide, but presumably no further requirement for ancient Greek sculpture. Besides, at the time when they were stolen from her church, it lay in territory subject to Islamic law, under which the Mother of God had no supernatural validity either. The law reasonably requires that, in order to bring an action, the litigant must exist - and this would seem to be a rather grey area in the case of goddesses, let alone elves. If the principle of rights for the supernatural is accepted, we can look forward to some very odd debates in court. They will look more like solemn games than proper business. But then, as Huizinga pointed out in Homo Ludens, it is the really serious things that we play games about.
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Originally published in At the Edge No.10 1998.
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