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| ISBN-13: | 9781478006732 |
|---|---|
| Publisher: | Duke University Press |
| Publication date: | 12/20/2019 |
| Series: | Radical Américas |
| Pages: | 244 |
| Sales rank: | 1,010,613 |
| Product dimensions: | 6.00(w) x 9.00(h) x 0.51(d) |
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CHAPTER 1
That Sole and Despotic Dominion
There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. And yet there are very few, that will give themselves the trouble to consider the original and foundation of this right.
— WILLIAM BLACKSTONE, Commentaries on the Laws of England, 1765
This chapter develops two genealogies of dispossession. The first, presented in section I, is a largely intra-European account whereby the concept emerges in relation to a host of shifting proximate terms, such as expropriation, confiscation, and eminent domain. I argue that although the term originally operates within very long-standing and abstract debates concerning the nature of property per se, by the turn of the nineteenth century it takes on a much narrower, practical function as a tool of critique in relation to battles against feudalism. Section II turns to a second context: Indigenous struggles against colonization. In this part of the chapter, I seek to differentiate this conception from the first by attending to its unique recursivity. The chapter concludes in section III by substantiating this argument by providing specific historical examples in the form of nineteenth-century Anglo settler property law concerning squatters and homesteaders.
I
In Western European legal and political thought, there is widespread and long-standing recognition of the right of the sovereign to appropriate the property and assets of subjects, forcibly if necessary. Rather than finding a single unifying concept under which to subsume this notion, one encounters instead a complex and confusing array of terms that vary according to time, location, custom, and vernacular. For the purposes of analytic treatment, however, this cacophony can be roughly organized into a set of four linguistic "families" in modern English that, while overlapping and interrelated, can help parse distinct conceptual inflections. They include expropriation, confiscation, eminent domain, and dispossession.
The Latinate term expropriation was introduced into European vernacular languages by the revival of Roman legal vocabulary by medieval civil and canon jurisprudents in the eleventh and twelfth centuries. Since then, it has come to name the right of the sovereign to appropriate property for the sake of the "common good" in some sense or another (publica utilitas, communis utilitas, commune bonum, etc.). The paradigmatic expression of this power has long been the compelled seizure of land required for the building and maintenance of public infrastructure such as roads or castle walls. For many centuries, of course, it was the sovereign who held ultimate interpretative power over who counted as within the "public" or what was in the "common good." As a result, expropriation was a highly flexible power; it could be expanded or contracted to suit a variety of schemes.
Precisely because expropriation has had this variable scope, it has also had a retributive function. It this way, it has bled into confiscation. Derived from the Latin confiscare — "to seize for the public treasury" — this term refers to the coercive seizure of property from subjects for the purposes of punishment. It has been used, for example, to strip criminals of their assets in the wake of conviction for crimes, or as retribution for political and religious insubordination. For instance, during the American Civil War, the Union passed two "Confiscation Acts" (1861, 1862) as a means of seizing southern lands and slaves as a punitive response to treason. Confiscation is sometimes treated as a species of expropriation, since legal enforcement might reasonably be thought a function of serving the "common good." The two remain nevertheless partially distinct since confiscation commonly singles out a particular individual or group of individuals on the basis of their actions or standing relative to the sovereign. It is a mode of punitive forfeiture, tailored to a specific case.
In 1625 the Dutch jurist Hugo Grotius intervened in these debates and in so doing coined a new term. In On the Law of War and Peace, generally considered to be a foundational text in the history of international law, he introduced the term eminent domain as part of his argument that "through the agency of the king, even a right gained by subjects can be taken from them in two ways, either as a penalty, or by the force of eminent domain [dominium eminens]. But in order that this may be done by the power of eminent domain, the first requisite is public advantage; then, that compensation from the public funds be made, if possible, to the one who has lost his right." Grotius did more than introduce a novel term, however. He also helped shift the register of the debate. His key contribution, followed by later thinkers such as John Locke and Samuel von Pufendorf, was to connect the specific right of expropriation to a general theory concerning the origin and nature of property as such. If the sovereign has a particular right to seize property for the common good, this would seem to presuppose a superior claim on his part. Hence "eminent domain" has come to be used (rather confusingly) as both an act and as the underlying form of title that justifies that act. But how did the sovereign acquire that title in the first place?
One answer to this question was provided by various feudal theories of title hierarchy. In this framework, the sovereign holds a special right of expropriation because his title has priority, in both senses of the term: it was both older and superior. In his famous compendium of English common law (1765–79), William Blackstone summarized the feudal framework in the following way: "that the king is the universal lord and original proprietor of all the lands in his kingdom; and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feodal services." Claims of this sort appear to have been strongest in medieval and early modern France, as well as on the Iberian Peninsula, where expropriation was justified as an exercise of seigniorial power. In a different idiom, this was part of Robert Filmer's defense of absolutist monarchy in England, famously pilloried by Locke in The Two Treatises.
Within these rather expansive theories of expropriation, special attention was paid to the matter of "originary title," that is, the question of how one could acquire a proprietary interest in something that had no previous owner, for which there was no prior claimant. In medieval and early modern European jurisprudence, this came to be known as the problem of res nullius. Standing behind this concept is a relatively simple intuition: an object with no prior owner becomes the property of she who takes control over it first, who is said to have a right of preemption. Partially through the Roman revival, the idea that "preemptive acquisition" was a qualitatively distinct form of proprietary claim entered into European civil and canon law. Explaining and justifying this distinct moment was important, it was thought, because all subsequent property claims were derivative of this "originary" moment. The matter touched upon very grand theoretical questions, such as how humans could come to assert legitimate private property claims in an originally common inheritance (from God), even absent "any express Compact of all the Commoners" (as Locke put it), but the matter was also put to very practical purposes. In the early modern English context, for instance, it validated novel acquisition over previously unclaimed or unused lands (for instance, by the draining of swamps). So the question of "originary possession" served a dual function, as part of a narrative about the origins of civil society and property per se and as a topical and practical intervention into the property relations of the present. In this context, concepts of expropriation emerged as a means of explaining the sovereign's prerogative to forcibly appropriate property and assets from subjects. The sovereign had a right of expropriation because he or she was the rightful inheritor of the originary possession of the land.
Grotius's theory of eminent domain was motivated in part by a desire to displace this feudal theory of original possession. For him, although the sovereign still possessed a special right of expropriation, this had to be justified on different grounds. Rather than a seigniorial power, eminent domain was part of a contractualist, delegation theory of sovereignty. The sovereign holds the right to seize assets for the public good not in virtue of personally possessing a superior title but rather in light of his being empowered to adjudicate and legislate over the common good. Eminent domain was an extension of governmental authority, exercised on behalf of subjects who held an equiprimordial natural right to property. Among other contributions, this theory provided an independent normative benchmark by which to distinguish legitimate from illegitimate forms of expropriation. Subjects were empowered to ask whether any particular exercise of expropriation or eminent domain was authentically undertaken for the common good.
Eminent domain remained for several centuries a relatively minor language of property seizure. It was used by a host of legal and political theorists — from Pufendorf to Emer de Vattel and Denis Diderot — but never became the dominant idiom, least of all in English. This changed in the latter half of the eighteenth century, however. At that point, Anglo settler elites in British North America were searching for intellectual resources that might help them in their bid for greater autonomy from imperial London. As a result, they reached for continental European theorists who had been relatively overlooked in Britain. The result was that the language of "eminent domain" entered into legal and political theory of Anglo-America and, to this day, remains the dominant way to express the idea of compulsory seizure of private assets for the public good in the United States (unlike in Great Britain, where it still has little traction).
Anglo-American thought of this period is driven in no small part by a desire to defend the power of eminent domain on more purely liberal-Lockean grounds; that is, the sovereign holds this power only because he is acting as a representative and executor of the common will. One way to establish these liberal bona fides was to exaggerate the distinction between modern, liberal notions of eminent domain and Roman, medieval, or early modern feudal conceptions of expropriation. The standard form of this argument holds that, since the modern power of eminent domain is expressly about overriding individual private property interests, it cannot be said to have existed until such interests were already recognized. Hence, early American theorists of eminent domain commonly assert that, in this technical sense, it did not exist "before the title of the individual property owner as against the state was recognized and protected by law." On this basis, modern eminent domain can be differentiated from earlier theories of expropriation in which "the right to take land for public use was merged in the general power of the government over all persons and property within its jurisdiction."
Under close inspection, however, this clean division does not hold up. One way to render their overlap visible is simply to note that, in the vast majority of cases, the sovereign right of expropriation carried a corresponding duty to compensation. Across medieval and early modern Europe, widespread convention held that subjects were owed fair recompense for their sacrifices to the common good, however necessary these sacrifices might be. This is tantamount to recognition that subjects, however "common" they might be, held some valid proprietary interests that were being overridden. Those whom a specific act of expropriation disadvantaged were, after all, part of the collective in whose name it was being enacted. (One significant exception to this general rule was the case of expropriation as a form of punishment, which is why confiscation remains a partially distinct term of art.) In short, the general form of the argument across this period was that sovereigns held a right to expropriate not predominantly because they held ultimate and primordial title to the land but because they had a special responsibility to care for the community as a whole and to rule for its common good.
This framework provided two normative benchmarks: expropriation must be for the sake of the "common good" and attended by fair compensation. These two features are important because they also provide leverage for a critique of illegitimate expropriation. This is where our final term enters the discussion, since dispossession has most often been used to mean "unjust expropriation." The contemporary term can be traced backward through the Middle English disseisine to the Anglo-Norman dessaisine (itself a variant of Old French). For many centuries, these terms were used to name forms of wrongful seizure or removal. This was, in a literal sense, a condition characterized by a deprivation of seizine, meaning possession of land or chattel. The term has very old roots as well. For instance, in the Magna Carta of 1215, section 39 states, "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will be proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land." In the original Latin, the first line is "Nullus liber homo capiatur vel imprisonetur aut disseisiatur." Although the term disseisiatur is sometimes rendered as "stripped," it is more literally "disseised" or, in modern English, "dispossessed." This etymological link endured for many centuries in English legal and political thought. It was used by Hobbes in Leviathan (1651) and, much later, remained evident in the 1833 Assize of novel disseisin, which dealt with recovering lands "recently dispossessed" from the plaintiff.
We have then a clutch of concepts: expropriation, confiscation, eminent domain, and dispossession. Although overlapping, intersecting, and highly mutable, when taken together these terms nevertheless compose a scene regarding the shifting powers of property in the early modern European world. Collectively, they express a dual desire: to name the legitimate right of the sovereign (and his delegates) to seize property for the common good and, conversely, to condemn the abuse of this power. Whereas eminent domain is typically used only in service of the former positive sense, dispossession has more often operated in the latter, critical register. Most confusingly, expropriation has long been employed for both.
* * *
As I have already indicated, although each of these terms refers initially to a specific question of property acquisition, each is already implicated in broader theories of political legitimacy. This became all the more explicit as the concept of dispossession was expanded and radicalized in the late eighteenth and early nineteenth centuries. This is an important period in the story that occupies our primary concern here because it was at this point that it became possible to argue not simply that the sovereign had performed a specific act of illegitimate property seizure but that sovereignty was itself the effect of a massive act of "unjust expropriation."
The entry point for this expanded notion of dispossession was the central role that struggles over land tenure held in the context of revolts against feudalism. Rising republicanism of the mid to late eighteenth century led to an increased concern with delegitimizing the very idea of a permanent landed aristocracy. In the service of this critique, republican thinkers reached back to a rich (albeit quasi-mythological) Greco-Roman tradition, which placed great emphasis on the virtues of fixed agricultural property, not only for the property holders but also for the political community as a whole. Fixed agricultural holdings, especially when held in small units by independent farmers, were thought to be the fount of republican excellence. Such farmers were relatively autonomous in both a material and ethical sense: their unmediated access to land could provide them not only basic subsistence but also a medium for virtuous labor. Modern republicanism could critique feudalism on the basis of its perversion of this relationship, since the majority of landholders were no longer independent farmers but proprietors of large estates funded by rent. This concern is quite clear in the analysis of Jean-Jacques Rousseau, for instance, who was most critical of the kind of large landholdings that formed the foundation of the European nobility; but, as we shall see, it can also be seen in a host of later anarchist and utopian socialist thinkers, from Marx to contemporary critical theory. So, although such questions entered into early modern European legal and political thought as an extension of very general and abstract questions about property as such, they soon came to function as tools in an urgent contemporary political struggle.
(Continues…)
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Table of Contents
Acknowledgments ix Introduction 1 1. That Sole and Despotic Dominion 16 2. Marx, after the Feast 52 3. Indigenous Structural Critique 85 4. Dilemmas of Self-Ownership, Rituals of Antiwill 116 Conclusion 144 Notes 161 Bibliography 203 Index 225What People are Saying About This
“Theft Is Property! is an intellectually riveting and necessary critical consideration of the genealogy of dispossession as it is used to different ends by Indigenous scholars and activists and within Marxist critiques of capitalism and labor. Its emphasis on the normativity of dispossession as a recursive theft into property formation that explains the structural formation of settler colonialism will be a central text in shaping discussions around why Indigenous critique matters beyond identity politics.”
“In this extraordinary work of political theory, Robert Nichols offers a wholesale revision of the conceptual problematic of dispossession in light of the history of settler colonialism and in a context of contemporary Indigenous resurgence. Through sustained engagements with critical race theory, Marxism, and feminism, Nichols forcefully reanimates the moral sense and political understanding of Indigenous dispossession as a recursive process by which proprietary claims of settlers have been constituted and Indigenous subjects simultaneously made bereft of something they never claimed to own—a transformation of theft into property. This profound and pathbreaking work will change the conversation across several fields.”