Σάββατο, 3 Σεπτεμβρίου 2016

Juristic romanticism

Ένα πολύ ενδιαφέρον βιβλίο:

Kaius Tuori, "Lawyers and Savages. Ancient History and Legal Realism in the Making of Legal Anthropology", Routledge, 2015

"The idea that law was not only a set of rules but a part of culture was a theory that arose as a reaction to the rationalism of enlightenment thought. It was developed by the founders of the historical school of jurisprudence (Historische Rechtsschule), mainly by its influential theorist Friedrich Carl von Savigny (1779-1861), but also Gustav Hugo and Jacob Grimm. They claimed that the validity and the content of the law were derived from the culture of the people and law was historical in its character. Many of the central concepts of the school such as history, culture, and people were staples of German romanticism ..." (p. 37)

"The application of the civilizing narrative of the Western legal tradition in the colonial world had very concrete implications. In land tenure and communalism, colonial practice combined, with disastrous results, the widely shared conviction that communal ownership preceded private ownership with the observations that many indigenous peoples held land communally or had little understanding of the concept of ownership in general. Communal tenure was generally held to be lower on the scale of civilization than the Western private ownership. During the late 19th and early 20th centuries, humanitarian and less-than-humanitarian programs sought to extend the benefits of private ownership to indingenous peoples, or to protect them from dispossession by taking their land into state ownership, to be held in trust. In both circumstances, the result was often dispossession and the destruction of indigenous subsistence and culture. An extreme incident of this linkage between civilization and ownership were, of course, the instances (most famously in Australia) where settler states declared that there were no owners of the land because the people living there had not (yet) developed that far and the land could be declared terra nullius" (p. 189)

Χρόνια που με "απασχολούν" αυτά τα ζητήματα... Το βιβλίο είναι πολύ πλούσιο σε υλικό, μόνο ψήγματα παρουσίασα, αποσπασματικά κατ'ανάγκη...

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