Colonial Lives of Property: Law, Land, and Racial Regimes of Ownership
280
Colonial Lives of Property: Law, Land, and Racial Regimes of Ownership
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Product Details
| ISBN-13: | 9780822371571 |
|---|---|
| Publisher: | Duke University Press |
| Publication date: | 05/03/2018 |
| Series: | Global and Insurgent Legalities |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 280 |
| File size: | 1 MB |
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CHAPTER 1
Use
Contemporary struggles over property in urban areas often revolve around the concept of use. If people can use empty residential buildings for shelter, particularly when there are severe housing shortages in many major cities, shouldn't their interests in property prevail over that of a genuinely absentee owner? The Plataforma de Afectados por la Hipoteca (PAH), to take one salient example, base their struggle for social housing on the idea that the social uses of property (residential housing stock in particular) should have greater weight in defining property interests than property's function as an instrument of financial investment and expropriation. In the face of a massive number of foreclosures and evictions in Spain in the aftermath of the 2008 financial crisis, PAH has sought to reinvigorate the provisions in the Spanish Constitution that explicitly protect the right to housing, and to challenge the primacy of the ideology of ownership itself.
The relationship between the uses of property and property ownership has a complex history, which persists into the present. The question of whether the use of a thing gives rise (or ought to give rise) to an ownership interest has long been a matter of great contestation and revolves around the social, political, and economic value attributed to the particular form of use at issue. For instance, the Franciscans famously distinguished their use of property for the fulfillment of the necessities of life from the actual ownership of that same property in view of their order's prohibition on accumulation. The question of whether Franciscan monks ought to be allowed to use property without being ensnared within legal relations of ownership or, indeed, whether their use de facto constituted an ownership interest was continuously posed by powerful clergymen and the pope during the thirteenth and fourteenth centuries. Ultimately, while the Franciscans' use of property was juridically defined as being above and beyond the legal domain, Thomas Frank argues that the undertaking to live in poverty was understood as reaping a spiritual dividend. There was a "high degree of exchangeability between material goods and spiritual performances," with the Franciscans' use of property dependent on the license freely given to them by the legal owners, the Roman Catholic Church.
The separation of interests between those who use property or benefit from its use and those who are the legal owners also lies at the basis of the modern law of trusts. The modern trust is a legal device that has evolved over time in order to split beneficial (or equitable) ownership from legal title to property, which has its origins in the Roman law concept of "the use." Translated into the Norman idiom of the medieval period, the cestui que use denoted one who was the beneficiary of property legally held by another. With the modern trust, the use of property for the good of beneficiaries covers a very wide spectrum indeed, encompassing both charities on one end and private trusts used to accumulate vast amounts of wealth, while often avoiding various liabilities, on the other. Precisely because of the contested nature of use and its relationship to legal ownership — the question of how property can and ought to be used, by whom and for whose benefit — this conjuncture remains a potentially fruitful arena for reshaping prevailing property norms.
Despite the flexible and variable nature of the relationship between use and ownership, the physical occupation and use of land as a basis for ownership has been defined quite narrowly by an ideology of improvement in settler colonial contexts. Despite the widespread adoption in Canada, many states in the United States, and Australia, among other places, of a system of title by registration in the late nineteenth and early twentieth centuries (explored in chapter 2), the concept of use retains its place at the heart of indigenous struggles for land. The social use of property (i.e., use that is not solely defined by economic productivity and profit), and the use of property to meet the basic necessities of life, such as shelter, form a part of contemporary struggles to redefine relations of ownership in urban spaces. However, it is clear that historically speaking, in common-law jurisdictions, use that would justify an ownership right was defined by cultivation, and cultivation was understood within the relatively narrow parameters of English agrarian capitalism. In settler colonies, early modern property logics that posit cultivation as the basis of an ownership right shape the criteria for establishing indigenous rights to land, which, in the context of a land market where contemporary ownership is governed by a system of registration, produce anachronistic legal tests and legal subjectivities in the domain of aboriginal title.
It is instructive, in considering how use remains a central characteristic of aboriginal title in the Canadian context, as elsewhere, to consider the ideology of improvement that came to shape property law from the seventeenth century. The logics of quantification and measurement that subtend the ideology of improvement required new mechanisms for creating and attributing value to people and the land to which they were connected. We see in the work of early political economists such as William Petty the formulation of a scientific approach to the measurement of the value of land and people. The convergence of medical scientific understandings of the human body, and anatomy specifically, with a method of evaluation based on mathematics produced new forms of valuing land, produce, and people, and in turn justified new and emergent forms of colonial governance.
The imperative to quantify and measure value created an ideological juggernaut that defined people and land as unproductive in relation to agricultural production and deemed them to be waste and in need of improvement. The creation of an epistemological framework where people came to be valued as economic units set the ground for a fusing together of ownership and subjectivity in a way that had devastating consequences for entire populations who did not cultivate their lands for the purposes of commercial trade and marketized exchange. These populations were by definition uncivilized and could be disposed of, cast out of the borders of political citizenship. The brutal displacement and dispossession of thousands of Irish that preceded the displacement of First Nations from their lands, based on the political arithmetic of Petty and those influenced by his work, such as John Locke and Adam Smith, is testament to the violence engendered by methods of measurement and quantification, and conceptualizations of value defined primarily by economic productivity.
In this chapter, I argue that in the settler colony, use remains at the core of prevailing definitions of aboriginal title. Governed by an ideology of improvement, the manner in which First Nations have historically used their land and whether it conforms to an idea of cultivation and settlement that emerged during the transition to agrarian capitalism in England has formed a primary criterion in adjudicating aboriginal title claims in the Canadian context, and as we will explore in chapter 3, in the Israeli/Palestinian context as well. Indigenous ways of using and owning land that don't conform to this ideal of settlement have been relegated to a prehistory of modern law. This ideology of improvement is one that binds together land and its populations; land that was not cultivated for the purposes of contributing to a burgeoning agrarian capitalist economy by industrious laborers was, from the early seventeenth century onward, deemed to be waste. Whereas wasteland was free for appropriation, those who maintained subsistence modes of cultivation, for instance, were cast as in need of improvement through assimilation into a civilized (read English) population and ways of living. In this chapter, the racial regime of ownership that articulates both land and its people as in need of improvement reappears across many colonial jurisdictions at different historical junctures, each with their own specificities.
In seventeenth-century colonial Ireland, the value of land and populations was assessed on the basis of their productivity, the former measured according to agricultural output and the latter by their capacity to cultivate. In Petty's writings we see the beginnings of what could be termed an early labor theory of value, rendering the value of both land and human life as equivalences based on the cultivation of land. The subsequent evaluation of both uncultivated land and the people associated with subsistence modes of life as waste is distinct, however, from the concept of a surplus population, as elaborated by Marx. The colonial compulsion to improve the native was not conditioned by the need to create a reserve army of labor. Rather, what is evident is a desire to expel or criminalize populations who are not settled on the land and who do not engage in marketized forms of cultivation. The lack of fixity or the nomadic character of populations has long been a basis for their criminalization and expulsion from the body politic. Foucault points to the first economic analyses of delinquency in eighteenth-century France, which identified the vagabond as a criminal element in society who deserved to be stripped of civil status: "[E]ntry into the world of vagabondage is the main thing to be punished; entry into the world of delinquency is the fact of travelling around, of not being settled on an estate, of not being defined by a job. Crime begins when one has no civil status, that is to say geographical location within a definite community, when one is 'disreputable (sans aveu).'" The eighteenth century witnesses both the criminalization of groups of people not tethered or fixed geographically to regular work, as well as the rise in statistical forms of knowledge aimed at the governance of these (and other) populations. While Foucault does not address the colonial context, the criminalization of mobile groups of people found its legal expression, in the colonial context as elsewhere, in the crime of trespass. First Nations who, prior to the arrival of settlers, engaged in mobile and seasonal forms of cultivation and labor were rendered as inherently inferior, demonstrably lacking the norms of propriety required for full civil status. The Irish were viewed, from the beginnings of colonial settlement in the seventeenth century, as somewhat less than human on account of the lack of permanence that characterized the dwellings of laborers. In the nineteenth century, the racial difference of First Nations, based on the nature of their land use, is cast by the surveyor Trutch in British Columbia in civilizational terms; and finally in the twenty-first century, race appears primarily as a discourse of cultural difference in the case of the Tsilhqot'in land claims. The figure of the seminomad, recuperated and rehabilitated in recent indigenous rights litigation, bears the mark of this globalized history of exclusion.
This chapter proceeds in three parts. In the first part, I trace the history of the ideology of improvement through the work of William Petty. While Baconian influences on his thought are undoubtedly relevant, I focus here on the way in which Petty conceives of wealth and value in the Political Anatomy and Political Arithmetick. The fusing together of the value of land with the value of people emerges in the context of colonial Ireland, where early attempts to measure land with the use of a cadastral survey coincided with the desire to measure the value of the population on the basis of their consumption and productive labor. In the work of Locke and Blackstone, the attributions of savagery and underdevelopment to populations not engaged in waged labor or capitalist agrarian production as set forth by Petty are historicized and spatialized. The Indians of North America, lacking the laws of private property, inhabit a premodern space, a time and place before the advent of civilization.
In the second part of the chapter, I examine colonial settlement in British Columbia, and the widespread use of preemption and homesteading as the primary legislative devices used to settle unceded aboriginal lands. An examination of the attitudes and actions of colonial administrators, notably Joseph Trutch, reveal how First Nations' land was surveyed and remapped in the service of consolidating colonial sovereign control over it. We glean insight into how both the land and First Nations were viewed by colonists such as Trutch, who was motivated as much by individual greed for personal profit as grand civilizational and imperial objectives. Possession and the acquisition of aboriginal land, the necessary precondition for the development of agriculture, industry, and the accumulation of wealth by individuals as well as the colonial states they represented, shaped land law in colonial British Columbia, as elsewhere. What is of interest here is the major role that the ideology of improvement played in this process, and the way in which it enfolded the valuation of land and indigenous populations into one juridical formation, governing colonial spaces through a racial regime of ownership predicated on cultivation and racial hierarchies determined by this form of land use.
By way of conclusion, I examine the aboriginal title case of Tsilhqot'in v. British Columbia (2014). I analyze key judgments of the Supreme Court of Canada relating to section 35 jurisprudence on aboriginal title, and consider the Supreme Court's redefinition of the concept of aboriginal title to include the practices, forms of land use, and worldview of seminomadic peoples. In augmenting the concept of aboriginal title in this way, I argue that the Supreme Court has taken a significant step forward in taking into account aboriginal perspectives within the parameters of a colonial legal paradigm and yet remains tethered to an anthropological schema that can only recognize indigenous difference in terms of the language of nomadism. This theme is then explored in relation to the dispossession of the Bedouin in southern Israel in chapter 3.
The concept of improvement as the defining criterion for establishing a legitimate right to property finds its clearest expression in the work of Locke. However, the fusing together of the value of land and people, and the conceptualization of value according to specific ideas of improvement, emerges in the work of William Petty, whose Political Anatomy of Ireland and Political Arithmetick forged a new way of conceiving of and valuing wealth (and, significantly for my purposes, its constituent components including land and populations) in the space of the colony of Ireland. As I argue below, the ideology of improvement came to be governed by a logic of calculation and measurement. The approach taken by Petty reflects the influence of Baconian natural history on his thought; emerging ideas about taxonomy and classification, the use of mathematics to compile statistical knowledge of the human body and populations, coalesce with the desire to increase individual and national wealth. What emerges, as we see below, are new ways of quantifying both land and people, binding the value of one to the other. One of the first devices of measurement utilized to change the fabric of Irish society and economy was the land survey.
THE POLITICAL ANATOMY OF COLONIZATION
Labour is the Father and active principle of Wealth, as Lands are the Mother.
— William Petty, Economic Writings
William Petty was an inventor, an entrepreneur, a physician, and a progenitor of modern political economy. It was his appointment as physician-general to the army in Ireland, and to General Ireton, the commander in chief in 1651 that first took him to Ireland. This appointment marks the beginning of a long period of time in which Petty would have a profound influence on the appropriation of Irish lands and the displacement and dispossession of countless communities. The use of the survey as a technology for quantifying the value of land was refined by Petty in the Irish context, and deployed in many different colonial contexts thereafter.
By the mid-seventeenth century, Ireland lay, in the eyes of the English colonial power, a conquered and defeated territory. What remained as a prime concern to the English, however, was how to render the Irish into a complete state of submission; as conflict raged between Protestants and Catholics all over the European continent, there was fear of ongoing conflict with the Irish. The mass displacement and transportation of the Irish to England was viewed as a potential solution to war, but one that carried its own risks: "'The unsettling of a nation,' they [the colonial council] pointed out, 'is an easy work; the settling is not,' and the transplantation could have but one result — the permanent mutual alienation of the English and the Irish, and the division of the latter between a large discontented garrison beyond the Shannon and scattered bands of pillaging Tories on this side of the river."
(Continues…)
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Table of Contents
Acknowledgments ixIntroduction: Property, Law, and Race in the Colony 1
1. Use 33
2. Propertied Abstractions 77
3. Improvement 115
4. Status 149
Conclusion: Life beyond the Boundary 181
Notes 201
Bibliography 239
Index 257
What People are Saying About This
“Brenna Bhandar's enthralling book peels the veneer of property law from that which lies concealed beneath—the multiplicitous structures of dominance that define our contemporary settler-colonial world, all the way from Parramatta to Palestine. Here is a trenchant reassertion of the capacities of Marxist analysis to plumb dispossessions both historic and current, and to expose the entwined regimes of ownership and of racial hegemony that sustain them.”
"This powerful and profoundly political book explores ownership through the prism of the modern emergence of property law and contemporaneous conceptualizations of race. In colonial jurisdictions, property law—that 'terrible right'—legalized and continues to legitimate the expropriation of land and wealth, structuring a form of domination adequate to it. Two questions lie at the core of Brenna Bhandar's analysis: In light of the travels of property law between the metropole and the colonies, is it possible today to push back against it? So that, along with law, property too may be thrown into question?"
“In this original study, Brenna Bhandar analyzes the constitutive role of colonialism in the development of modern property law and the modern legal subject. Bhandar's sophisticated comparative research on the political-economic imagination and legal infrastructure of settler colonialism is completely fascinating. And her stunning elaboration of what she names 'racial regimes of ownership' is utterly brilliant. A timely and essential book that will fundamentally change the way we think about race, property, and subjectivity.”