Kaius Tuori

The Theory and Practice of Indigenous Dispossession in the Late Nineteenth Century: The Saami in the Far North of Europe and the Legal History of Colonialism

The dispossession of indigenous peoples is one of the central issues of the post-colonial world. The purpose of this article is to explore the Saami dispossession in the nineteenth century in the far North of Europe through a comparative approach. By comparing the theory and practice of the Saami dispossession with examples from Oceania, North America and Africa, this article analyses the role of legal and anthropological doctrines in the process of dispossession. Linking the history of colonialism with the idea of progress inherent in Western historical thought, it follows the complex convergence and transfer of ideas of property and indigenous rights that still influence debates on indigenous land rights.

The Disputed Roots of Legal Pluralism

It has been claimed that Felix S. Cohen, one of the leaders of the American legal realism movement of the 1930s, introduced legal pluralism to America. This article argues that this assessment is controversial and depends on the definition of legal pluralism. In its analysis of the concepts of legal pluralism advanced by Cohen and his contemporaries Karl Llewellyn and A. Arthur Schiller, the impact of the different traditions of legal pluralism is demonstrated. In fact, Schiller was the first to introduce many of the basic tenets of current legal pluralism such as the preservation of indigenous law in American legal discourse.

Legal Pluralism and Modernization: American Law Professors in Ethiopia and the Downfall of the Restatements of African Customary Law

Abstract This article explores the ‘law and development’ movement’s controversial impact in Ethiopia through the involvement of American law professors such as A. Arthur Schiller in the struggle between modernization and traditionalism in the 1960s and 1970s. Elsewhere in Africa there were efforts to improve the administration of law by producing restatements of customary indigenous law, but Ethiopia had opted for wholesale modernization of its legal system. Because it was claimed that the Ethiopian law reform had led to the nullification of law, Schiller attempted to produce a restatement of customary indigenous land law in order to show the viability of traditional law. These two contradictory trends, modernization and traditionalism, are presented against the background of the intellectual currents of normative pluralism and colonialism. Schiller’s work was based on the premise that legal pluralism would be the future of African law. The Ethiopian codification recognized customary law only in the norms of land tenure, which Schiller used as a pretext for his project to demonstrate that law reform based on the utilization of traditional law was possible and would successfully correct the nullification of law in rural areas. In the end, all legal reforms were made redundant by the 1974–1975 socialist revolution in Ethiopia. The legacy of Schiller is in the development of legal pluralism. He attempted to chart a course between the subjection of indigenous law to the state legal system and its irrelevance by advocating autonomy and development within the traditional legal culture.

Schmitt and the Sovereignty of Roman Dictators: From the Actualisation of the Past to the Recycling of Symbols

SUMMARY The aim of this article is to analyse the complex roots of Carl Schmitts theory on dictatorship in the classical world through the lens of classical receptions. It argues that Schmitt was deeply engaged with the classical tradition in formulating his theory on dictatorship. Knowingly or unknowingly, Schmitt legitimates his theory through a foundation in both the Roman idealisation of the virtuous dictators of the early Republic as well as the long tradition of the narrative of the enlightened sovereign as a guarantor of law, present in both Greek and Roman antiquity and in the subsequent European tradition. Schmitt skilfully repurposed the Roman historical tradition on dictators but glossed over the traditional antipathy of Roman republicanism towards sovereign rule. The claim that this article is presenting is that even though it has been overlooked by earlier scholars, Schmitt was both directly and indirectly influenced by the classical tradition of dictatorship and utilised their mythical and symbolic dimensions in the later Roman and the subsequent European legal and political traditions. The reason for this omission was that Schmitt, like his contemporaries, belonged to one of the last generations to be groomed in the classical tradition of literature.

Hadrian's Perpetual Edict: Ancient Sources and Modern Ideals in the Making of a Historical Tradition

This article examines the historical afterlife of the Perpetual Edict commissioned by the Roman emperor Hadrian during the second century AD. Accounts of the institution by Roman jurists and historians are inconsistent, which has led legal historians to adopt positions of remarkable variation. The relationship between historical sources and interpretations demonstrates that from the sixteenth century onwards contemporary legal ideas of codification of law were transposed into the history of the Perpetual Edict. In particular, the use of the model of a modern systematic codification is explained as an expression of phantom modernity, the tendency of scholars to modernise the classical world as a continuation of the long-established glorification of the Antonine Roman empire.

Judge Julia Domna? A Historical Mystery and the Emergence of Imperial Legal Administration

ABSTRACT This article analyses a problematic passage from Cassius Dio (78.18.2–3) where Julia Domna is depicted as answering petitions and correspondence on behalf of her son, Caracalla, in AD 214–215. Through a reading of the relevant sources and the emerging tradition of Roman imperial adjudication, the article seeks to answer the question: what did this reference to an empress using imperial power mean? Was it merely a sign of the emperors ineptitude or could it be seen as a reference to the centrality of answering appeals in the duties of the emperor? Is it even possible that she should be seen as a judge of some kind? By analysing the conventions of imperial jurisdiction, the article maintains that there was an ambiguity where responding and judging on behalf of the emperor or posing as the emperor involved many different figures in the administration. It is argued that while an official role was not likely, it is possible that Julia Domna would have held a supervisory position in the administration as well as acting as an interlocutor, but that like others who were appointed to judge in the place of the emperor, her work would have been largely invisible, noted only by petitioners expecting to meet the emperor.